This Note introduces Kim Soon-duk, a former "comfort woman" whose story is sadly typical of the estimated 200,000 young women sexually enslaved by Japan during World War II. Kidnapped by Japan, Kim was shipped to China where she was brutally raped by as many as forty Japanese soldiers a day for three years. Kim kept her story a secret until the early 1990s, when the stubborn refusal of the Japanese government to admit its ugly history finally became too much for her to bear.
As more and more evidence emerged linking high Japanese officials, even Emperor Hirohito himself, to the "comfort women" regime, Japan reluctantly admitted its participation in the formulation and institution of the program. Nevertheless, legal efforts to force Japan to atone for its past in a meaningful way have largely failed. With one rather unremarkable exception, Japanese courts have routinely dismissed the claims of former "comfort women" as improper for judicial decision. Citing international law and Japan's post-war treaties, Japanese courts have insisted that compensatory questions should be taken up instead by the Japanese parliament. To date, the government's response remains half-hearted and unsatisfactory. As the women wait for justice, Japan waits for them to die.
Frustrated by Japan's recalcitrance, Kim and fourteen other former "comfort women" brought suit against Japan in the U.S. District Court for the District of Columbia. Observing that victims of the Nazi Holocaust were able to employ a litigation strategy that eventually forced the involvement of the political branches of both German and the United States and achieved a settlement not otherwise possible, the women hoped to mimic that success. The suit, based on the Alien Tort Claims Act, argued that Japan violated norms of international law by instituting and promulgating the "comfort women" program. Because the Foreign Sovereign Immunities Act bars most claims against foreign governments, however, Japan's motion to dismiss the case was granted. D.C. District Judge Kennedy's opinion in Hwang v. Japan rejected the plaintiffs' arguments that the statutory exceptions to the Foreign Sovereign Immunities Act could be properly invoked. In the alternative, Judge Kennedy held that the case raised a nonjusticiable political question more appropriate for decision by the political branches.
This Note concludes that the court's decision in Hwang v. Japan is sound. A different result would have required the court to overturn legal precedent and threaten the partnership between the United States and Japan, a relationship whose foundations began in 1951 with the conclusion of the San Francisco Treaty. The success achieved in the Holocaust litigation required cultural and historical dispositions not present in the "comfort women" case, and widespread use of U.S. courts to settle such matters seriously threatens the ability of the Executive branch to conduct foreign affairs. The successful fusion of the Alien Tort Claims Act with an exception under the Foreign Sovereign Immunities Act would be especially damaging to U.S. foreign policy, allowing foreign nationals to sue their own governments in U.S. courts. The court's decision in Hwang v. Japan averts the emergence of Globocourt, at least for the time being.
INTRODUCTION: A PICTURE SPEAKS A THOUSAND WORDS
Kim Soon-duk remembers. Although the former "comfort woman" (1) does not speak much about the three horrific years she suffered as a sex slave for the Imperial Japanese Army, her paintings tell the brutal story. (2) Her nightmare began in 1937 when, as a sixteen-year-old virgin, she was lured away from her South Korean home with the promise of factory work in Japan. (3) Instead she was taken to a "comfort station" (4) near Shanghai, where she was raped by as many as forty Japanese soldiers a day for the next three years. (5) Near the end of this period, she was bleeding continuously. (6) Although she survived and was allowed to leave, the immense shame she felt prevented her from returning home. (7) Kim kept her story hidden from her family and friends until nine years ago, when a Japanese cabinet minister's claim that "comfort women" had voluntarily prostituted themselves prompted her to go public. (8)
Perhaps the most tragic aspect of Kim Soon-duk's story is that she was one of the lucky ones; many who got sick or injured were either abandoned or killed. (9) In fact, of the estimated 200,000 women (10) who shared Kim's horrors, some historians believe that as few as thirty percent survived. (11) "They kept trucks always waiting at the back of the house to take us to the hospital, because we were always getting hurt by the soldiers," Kim explained. (12) Many women contracted diseases and others lost the ability to bear children. (13) Women who resisted were beaten. (14) Suicide was common, (15) and those who tried to escape were severely beaten or executed. (16) As the war drew to a close, the retreating Japanese army killed many; (17) others were simply abandoned. (18)
Those who miraculously survived have gone on to live agonizing lives. (19) Like Kim, many "comfort women" felt so humiliated that they never returned home. (20) Those who did were often rejected by their friends and family and had to learn to bear their heartache silently, living in poverty and shame. (21) Because of the pain they have endured, many of these women have never married and live alone. (22) The former "comfort women" who have come forward to tell their stories all explain how their miserable experiences scarred them for life physically, mentally, and socially. (23) One study of former Taiwanese "comfort women" revealed that over half are divorced or never married, and that sixty percent were rendered infertile by their ordeal. (24) While Kim herself was fortunate enough to have children, (25) the sad truth is that the study seems representative of the other Asian (26) women forced into this regime. (27)
This horrible story that Kim tells through her paintings has been made all the more shameful by Japan's failure to come to terms with its past. Japan denied the existence of government-run "comfort stations" until 1992, when official government documents revealed incontrovertible evidence that could not be ignored. (28) Faced with information linking Emperor Hirohito himself to the program, (29) Japan finally admitted its participation, but maintained that the women had not been forcibly recruited. (30) It was not until 1993 that Japan finally acknowledged recruiting and stationing "comfort women" against their will. (31)
Nevertheless, the government has steadfastly refused to recognize any legal obligation to compensate the victims. (32) Only in the face of mounting international pressure did Japan help establish the Asian Women's Fund, a privately run charity which offers two million yen--about seventeen thousand dollars--to each surviving "comfort woman." (33) With the exception of clerical expenses, however, the monies come entirely from private sources, (34) leading some to believe that Japan hoped to circumvent any genuine admission of wrongdoing. (35) Because Japan has acknowledged mere "moral responsibility" to the victims while stubbornly denying legal responsibility and refusing to issue a formal apology, (36) most "comfort women" have refused to accept any money from the fund. (37)
Although a growing number of survivors have filed legal actions in the courts of Japan, most of these suits have met with little success. (38) In only one case has a Japanese court actually awarded damages to former "comfort women." (39) Japan defends these suits aggressively; this case represents their first loss to foreign plaintiffs on postwar compensation issues in Japanese courts. (40) The damages awarded were nominal, however, and early prophecies that the case would be overturned on appeal have been fulfilled. (41) Many cases remain pending and more will follow. (42)
These frustrations have led the elderly and tormented women to sue Japan in U.S. courts. On September 18, 2000, the anniversary of Japan's invasion of China, Kim joined with fourteen other Asian women in filing a class-action lawsuit against the government of Japan in the U.S. District Court for the District of Columbia. (43) The lawsuit, based on the Alien Tort Claims Act, was the first of its kind to be brought in a U.S. court. (44) Its goal was to force the Japanese government to set aside billions of yen as compensation for Japan's wartime atrocities, thereby settling Japan's "burden of history." (45) On October 4, 2001, however, District Judge Henry Kennedy dismissed the case, holding that relief should come from diplomatic channels, not the courts. (46) The decision will be appealed. (47)
This Note begins by recounting the historical and legal background against which this suit has been brought. Section II begins with a brief history of the events surrounding the institution of the "comfort women" program and introduces the treaties applicable at the time. The section then examines and dismisses the possibility that Japan's postwar treaties lacked finality, with special emphasis on the federal district court decision in In re World War II Era Japanese Forced Labor Litigation. Part II concludes with a narration of the frustration former "comfort women" have experienced in getting their claims successfully adjudicated in Japan. Because the "comfort women" have adopted the litigation strategy successfully employed in U.S. courts by victims of the Nazi Holocaust, Part III examines the historical and legal background against which Germany settled those claims. The section then presents the seemingly contrary approach the United States has taken with respect to Japanese compensation claims. Part IV examines applicable domestic law. While the Alien Tort Claims Act has been successfully, if only symbolically, utilized to achieve judgments against foreign actors for...