Is the ‘comfort women’ agreement final?

The positions taken by Korean and Japanese governments differ from one another when it comes to the interpretation of Article II of the 1965 Treaty of Basic Relations between the two: “It is confirmed that all treaties or agreements concluded between the Empire of Japan and the Empire of Korea on or before August 22, 1910 are already null and void.” Whereas the Korean government asserts the 1910 treaty, with which Japan essentially occupied the Korean peninsula, was illegal from the start, the Japanese government claims legitimacy of the treaty and says that it is now void following the ratification of the 1965 treaty. Regardless, what is more important is that the Japanese government systematically orchestrated the building of comfort women stations.

Given that 80 percent of the 200,000 comfort women were Korean, it would have been reasonable to expect the Korean government to seek state responsibility from Japan for injuring its nationals. However, when the Allied Forces negotiated treaties with Japan in San Francisco to end World War II and settle matters of compensation for wartime suffering of Koreans following the war and the Korean War, the issue of comfort women was pushed to the back burner.

It is obvious that the South Korean government has taken a more cautious approach. Although it has conceded that its 1965 treaty with Japan only settled claims for property damages incurred during the war and did not address military sexual slavery, it has withheld harsh criticism, thereby prioritizing financial aid, stating that the treaty aimed to normalize diplomatic relations between the two countries.
And now we have the ludicrous and perplexing 2015 oral agreement between the two foreign ministers of Korea and Japan.

Monetary compensation was paid for, but the money was given in the form of “Official Development Assistance,” in a form of donation or charity, rather than a proper apology stemming from state responsibility. The 2001 Responsibility of States for Internationally Wrongful Acts clearly notes in Article 35, “a state responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution is not materially impossible.” Since the Japanese government refuses to acknowledge its legal responsibility, 1 billion yen ($8.8 million) sent by Japan ought not be understood as a restitution.

It is thus understandable that many Korean advocacy groups, surviving comfort women, civilians and lawyers are requesting the foreign ministry to disclose the process of how the agreement was reached. And that is why comfort women have tried to resolve the matter through local remedies by bringing up the case to Japanese, Korean and even U.S. courts, but to no avail.

The 2015 agreement violated major human rights principles established by the UN Charter because although the issue at hand is of international concern, the two foreign ministers failed “to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion,” as stated in the Article 1 of the UN Charter.

Moreover, rape in armed conflict was clearly prohibited by the Regulations annexed to the Hague Convention No. IV of 1907. Because these are crimes against humanity, a jus cogens, no statute should limit current-day civil or criminal cases concerning the comfort women issue.

*Student at Kyung Hee University

Ku Yae-rin