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Conflicting ideas vex South Korea courts in 'comfort women' cases

Sovereign immunity is cited in dismissal of suit against Japan

Women hold portraits of deceased former South Korean "comfort women" during anti-Japan rally in Seoul in 2018.   © Reuters

TOKYO -- The decision came as a surprise. The Seoul Central District Court on Wednesday dismissed a lawsuit by former wartime "comfort women" seeking damages from the Japanese government just three month after the same court ruled in favor of a separate group of comfort women in a similar case.

The different rulings highlight the struggles judges can face between their own personal principles and international law, as well as the differing viewpoints that exist in South Korea's justice system when it comes to historical grievances with Japan.

In the case that was dismissed, 20 plaintiffs had demanded that Tokyo pay them a combined 3 billion won ($2.7 million) for their suffering during World War II. So-called comfort women serviced the Japanese military in wartime brothels.

Under international law, sovereign states generally cannot be sued in a foreign court. This concept, called sovereign immunity, often emerges as a key issue in Japanese cases involving the U.S. military, for example.

From a judicial perspective, Wednesday's ruling, which acknowledged Japan's sovereign immunity, is more in line with existing norms than the January verdict, which ruled that former comfort women suffered crimes against humanity and that the case therefore qualified as an exception to sovereign immunity.

South Korean President Moon Jae-in said after the January ruling he was "honestly confused" by it, and has recently been pushing for a diplomatic thaw with Japan. But given his administration's scathing criticism of how predecessor Park Geun-hye meddled with the judiciary, it is unlikely that Wednesday's ruling was a result of direct prodding by Moon.

The vast majority of South Koreans also believe that courts, especially at the district level, are unlikely to factor political considerations into their rulings.

In fact, South Korea's judiciary is known for displaying few qualms about verdicts that could trigger a diplomatic firestorm, in part based on lessons from the country's past as a military dictatorship.

The Moon administration, like its predecessors, has drawn heavily from its support base to fill key judicial positions. Moon appointed Kim Myeong-su, who chaired an association of progressive judges, as chief justice without his ever having sat on the supreme court. He has since appointed several other progressive justices as well.

Moon's progressive base tends to be vocal about demanding further apology and compensation from Japan over comfort women and wartime laborers. Their growing clout under the current administration was a key factor in the January ruling.

South Korea's lower courts are also filled with judges who took part in pro-democracy movements during their student days, which formed the foundation for the current progressive faction. But their rulings tend to reflect more of the individual judges' thinking, since the judges tend not to discuss cases with one another even on related topics. In contrast, supreme court justices deliberate rulings together.

"We often see different rulings come out of the same court," a South Korean government insider said, offering insight on why the same Seoul court issued two contradictory verdicts over just three months. "Judges tend to show their own personalities, which is where things are different from the supreme court."

On Tuesday, news also broke that the Seoul court decided not to approve the seizure of Japanese government assets to cover legal costs from the January case, saying doing so could violate international law. The reports bolstered public awareness of how international law can apply to these cases.

The bitter political rivalry between South Korea's conservatives and progressives can make certain rulings highly fraught for judges. The language in Wednesday's verdict hinted at the judges' internal struggle over the case.

The South Korean judiciary has played a key role in Japan-South Korea relations for years. The current bilateral chill, arguably the worst since the countries normalized ties in 1965, was triggered by a 2018 supreme court ruling that ordered the company now known as Nippon Steel to compensate laborers forced to work for it during World War II.

Bilateral tensions also nosedived when then-South Korean President Lee Myung-bak in August 2012 visited the Takeshima islands, administered by South Korea as Dokdo. Lee was largely emboldened by a court ruling the previous year that Seoul's failure to resolve the comfort women issue was unconstitutional.

It is important to note that Wednesday's ruling does not signal a shift in South Korea's diplomatic policies on Japan. Rather, the seemingly incompatible rulings are just two plausible decisions made by judges as they grapple with an increasingly progressive society and their own role in the justice system.

Still, the South Korean government has repeatedly said it will respect decisions by the judiciary on wartime issues, and a ruling that upholds the concept of sovereign immunity gives it more options in dealing with both the South Korean public and Japan.

Wednesday's ruling stated that the comfort women issue must be resolved through diplomatic efforts by the government. Its impact ultimately depends on the next moves by the Moon administration and its future diplomatic gestures toward Japan.

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