Hwang Geum Joo et al. v. Japan

Court	United States District Court for the District of Columbia, United States
Case number	00-02233 (HHK)
Decision title	Memorandum Opinion
Decision date	4 October 2001
Parties	Hwang Geum Joo et al. Japan
Categories	Crimes against humanity, War crimes
Keywords	international armed conflict, rape, sexual violence, torture, unlawful confinement, war crimes
Links	Memorandum Opinion
Other countries involved	Japan

Summary

Between 1931 and 1945, some 200,000 women were forced into sexual slaverty by the Japenese Army. These women, referred to as “comfort women” were recruited through forcible abductions, deception and coercion. Once captured, they were taken by the Japanese military to “comfort stations”, that is, facilities seized or built by the military near the front lines for express purpose of housing these women. Once there, the women would be repeatedly raped, tortured, beaten, mutilated and sometimes murdered. They were denied proper medical attention, shelter and nutrition.

The present lawsuit was brought by fifteen former “comfort women” against Japan on the basis of the Foreign Sovereign Immunities Act (FSIA). The United States District Court for the District of Columbia dismissed the action on the grounds that Japan enjoyed immunity from proceedings as a sovereign State and the action did not fall within any of the exceptions to immunity enumerated in the FSIA.

Procedural history

On 18 September 2000, fifteen “comfort women” field a lawsuit against Japan in the United States alleging that they were forcibly abducted from their homes and coerced into serving as sex slaves for the Japanese military before and during World War II.

In response, Japan entered a motion for dismissal on the grounds, inter alia, that it enjoys sovereign immunity and the case is therefore non-justiciable.

Related developments

The plaintiffs appealed the decision of the District Court. On 27 June 2003, the United States Court of Appeals, District of Columbia Circuit dismissed the appeal and upheld the decision of the District Court.

The plaintiff-appellants appealed to the United States Supreme Court. On 14 June 2004, the Supreme Court granted a writ of certiorari and remanded the case back to the Court of Appeals. On 28 June 2005, the United States Court of Appeals for the District of Columbia Circuit again found it was unable to hear the case because determining the plaintiffs’ claims required an assessment of matters solely within the powers of the Executive.

On 21 September 2006, the Supreme Court denied certiorari in respect of the appeal against the decision of the Court of Appeals from 2005.

Legally relevant facts

Between 1931 and 1945, some 200,000 women were forced into sexual slavety by the Japenese Army. These women, referred to as “comfort women” were recruited through forcible abductions, deception and coercion. Once captured, they were taken by the Japanese military to “comfort stations”, that is, facilities seized or built by the military near the front lines for express purpose of housing these women. Once there, the women would be repeatedly raped, tortured, beaten, mutilated and sometimes murdered. They were denied proper medical attention, shelter and nutrition (p. 2).

The “comfort stations” were regulated by the Japanese Army. Soldiers were charged for access with price depending on a woman’s nationality, whilst length of stay and time of visit depended upon the soldier’s rank (p. 3).

Core legal questions

Has Japan implicitly waived its immunity since the acts in question constitute violations of jus cogens norms of international law?
Does the planning, establishment and operation of “comfort houses” amount to a commercial activity that is not subject to sovereign immunity pursuant to 28 USC §1605(a)(2)?

Specific legal rules and provisions

Paragraph 1602 et seq. of the US Foreign Sovereign Immunities Act.

Court's holding and analysis

The Foreign Sovereign Immunities Act (FSIA), the exclusive basis for jurisdiction in the present case, provides for a presumption in favour of immunity where lawsuits are brought in the United States against foreign nations. Therefore, Japan is immune from proceedings unless the present case falls within one of several exceptions to this general grant of immunity contained in the FSIA (pp. 3-4).

Pursuant to 28 USC §1605(a)(1), a foreign state enjoys no immunity from proceedings in the United States in the event that it has waived its immunity, either explicitly or implicitly (p. 8). Jus cogens violations cannot, however, constitute an implicit waiver of immunity within the terms of §1605(a)(1) as confirmed by the Court of Appeals for the District of Columbia Circuit, the 2^nd and 7^th Circuit (pp. 10-11).

Pursuant to 28 USC §1605(a)(2), immunity does not exist in respect of actions based upon commercial activities carried out outside the United States where the act causes a direct effect in the Untied States (p. 8). The Court found that the operation of the “comfort houses” does not fall within the definition of a commercial activity in the FSIA. Whilst prostitution and brothels routinely exist as commercial ventured engaged in by private parties, Japan’s alleged conduct did not occur in this context. The conduct in question required the resources at the government’s disposal; such conduct is not typically engaged in by private players in the market. The mere fact that soldiers allegedly paid money in order to access "comfort stations," is insufficient to justify characterizing the challenged conduct as commercial in nature. (pp. 12-17).

Japan’s motion to dismiss for lack of jurisdiction is granted (p. 24).