Comfort Women: U.S.

Hwang Geum Joo, et al. v. Japan

Filed: September 18, 2000

Fifteen former comfort women (six South Koreans, four Chinese, three Filipinos, and one Taiwanese) filed a class-action lawsuit in the United States on September 18, 2000, Hwang Geum Joo, et al. v. Japan, seeking compensation and an official apology from the Japanese government. This is the first such lawsuit to be filed with a US district court.

The lawsuit stipulates that this class action was brought against the Japanese government on behalf of women who “were taken from their homes in countries occupied by Japan and who, pursuant to a premeditated mater plan, were forced into sexual slavery, enduring repeated rapes, harsh treatment, torture and beatings, but who have never received compensation from Japan for their suffering.”

The lawyers representing the comfort women stressed that Japan “committed, conspired to commit, furthered, and aided and abetted others who committed war crimes and crimes against humanity…[and] it enslaved female civilians under its control.” According to this class action, “the actions of the Japanese government in establishing and maintaining the system of sexual slavery from 1932 until 1945 violated jus cogens norms of international law, and are not subject to the defense of sovereign immunity.”

The lawyers representing the plaintiffs argue that due to multiple rapes on a daily basis for many years, the women “suffered serious health effects as a result, including permanent damage to their reproductive organs and urinary tracts from violent physical abuse and sexually transmitted diseases.”  Moreover, they emphasize that, “survivors who made it home returned to what were often lives of isolation and societal rejection, compounded by deeply instilled feelings of guilt and shame.  Many were ostracized… many who are still living are extremely poor and suffer from severe physical and psychological problems. Many could not marry. Many found themselves unable to bear children. Many suffer from sexually transmitted diseases contracted during their servitude and from drug addictions related to their wartime experiences.  Sleep disorders, like insomnia and fearful nightmares, are common.”

The plaintiffs demand the following: 1) to declare that the Japanese government violated international treaties and customary law; 2) to declare that the Japanese government violated the Alien Tort Claims Act and prohibitions against enforced prostitution and rape; 3) to direct the Japanese government to make available forthwith all documents or other records related to the operation of military rape camps and/or comfort women; 4) to award plaintiffs and the Class compensatory and punitive damages arising out of the unlawful behavior of the Japanese government; and 5) a jury trial on all issues so triable.

On March 5, 2001, plaintiffs filed a Motion for Declaratory Judgment seeking a determination that Japan did not enjoy sovereign immunity for its conduct pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C §§ 1602-1611 (“FSIA”).  The district court deferred considerations of that Motion pending briefing on Defendant’s Motion to Dismiss, filed on March 7, 2001, which asserted, inter alia, that Japan enjoyed sovereign immunity and that the political question doctrine mandated dismissal of this action.

On April 27, 2001, the US Department of Justice issued a Statement of Interest of the United States of America regarding the Hwang Geum Joo, et al. v. Japanclaiming that “The United States District Court for the District of Columbia had no jurisdiction over plaintiffs’ claims due to Japan’s sovereign immunity and by virtue of international obligations entered into by the United States and other nations with Japan at the close of World War II, which render plaintiffs’ claims non-justiciable.”  The plaintiffs responded to the “Statement of Interest of the United States of America” on June 4, 2001 by issuing Plaintiffs’ Response to United States’ Statement of Interest.

On May 7, 2001, plaintiffs filed an Opposition to the Defendant’s Motion claiming that Japan’s conduct satisfied the commercial activities exception to the FSIA, that Japan’s conduct in violation of jus cogens norms, that is international standards prohibiting mass rape, torture or other crimes against humanity, constituted an implied waiver of the FSIA, that the FSIA applied retroactively to Japan’s conduct and that the political question doctrine did not apply.  On June 1, 2001 the Defendant replied, and on August 1, 2001 the district court heard oral argument on Plaintiffs’ Motion for Declaratory Judgment and Defendant’s Motion to Dismiss.

On October 4, 2001 Judge Henry J. Kennedy dismissed the class action by issuing Memorandum Opinion on Comfort Women Case.  He stated that, “There is no question that this court is not the appropriate forum in which plaintiffs may seek to reopen those discussions nearly a half century later. Just as the agreements and treaties made with Japan after World War II were negotiated at the government-to-government level, so too should the current claims of the comfort women be addressed directly between governments. Several district courts have recently reached this same conclusion with respect to reparations for victims of the Nazi regime…Although the cases addressing reparations for victims of Nazi atrocities arose in a slightly different factual context than that of the ‘comfort women’ the result nonetheless remains the same. The court therefore concludes that even if Japan did not enjoy sovereign immunity, plaintiffs’ claims are non-justiciable and must be dismissed.”

On October 5, 2001 the plaintiffs appealed the decision of the District Court.  On August 13, 2002, they filed Brief for Appellants with the District Court for the District of Columbia to reverse its determination that Japan enjoys sovereign immunity for trafficking in women and sexual slavery, as well as the decision that appellants’ tort law claims are non-justiciable.

On June 27, 2003 the appeal was dismissed by the District Court.  The opinion issued by Chief Judge Ginsburg stated the following:  “The appellants are 15 women from China, Taiwan, South Korea, and the Philippines; they brought this suit against Japan, seeking money damages for having been subjected to sexual slavery and torture before and during World War II. The district court held Japan immune from suit pursuant to the Foreign Sovereign Immunities Act (FSIA) of 1976, 28 U.S.C. §§ 1330, 1602-1611, because it had not waived its immunity and the conduct alleged did not come within the commercial activity exception to the FSIA. The district court also held the suit was barred under the political question doctrine.  We affirm the judgment of the district court. Under the FSIA Japan is entitled to immunity from suit concerning the pre-1952 acts alleged in this case. We reject the appellants’ argument that violation of ajus cogens norm constitutes a waiver of sovereign immunity.”

Judge Ginsburg claimed that: “We hold only three things: (1) the commercial activity exception to the FSIA does not apply retroactively to events, such as those alleged in this case, occurring before May 19, 1952, the date of the Tate Letter; (2) in any event, the 1951 Treaty created a settled expectation, left undisturbed by the Congress, that Japan would not face suit in the courts of the United States for its actions during World War II; and (3) a violation of jus cogens norms does not constitute an implied waiver of sovereign immunity under the FSIA. Much as we may feel for the plight of the appellants, the courts of the United States simply are not authorized to hear their case. The judgment of the district court dismissing this case is, accordingly, affirmed.

The plaintiffs appealed their case to the United States Supreme Court on November 24, 2003 (case no. 03-741).  The case is now pending.