Hwang Geum Joo et al. v. Japan, Minister Yohei Kono, Minister of Foreign Affairs

Court	United States Court of Appeal, District of Columbia, Unites States of America, United States
Case number	01-7169
Decision title	Opinion of the Court
Decision date	27 June 2003
Parties	Hwang Geum Joo Japan
Categories	Crimes against humanity, War crimes
Keywords	international armed conflict, rape, sexual violence, torture, unlawful confinement, war crimes
Links	Opinion of the Court
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. On appeal, the present decision of the United States Court of Appeals for the District of Columbia Circuit affirmed the decision of the District Court.

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.

On 4 October 2001, the United States District Court for the District of Columbia dismissed the suit on the grounds that Japan enjoyed sovereign immunity pursuant to the Foreign Sovereign Immunities Act.

The plaintiffs appealed the decision to the Court of Appeals for the District of Columbia Circuit.

Related developments

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 slavery 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 “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 (par. 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 Court of Appeals is bound by its earlier decision in Princz v. Federal Republic of Germany in which it held that violations of jus cogens norms do not constitute an implied waiver of sovereign immunity within the terms of 28 USC §1605(a)(1) (paras. 7, 36-37).

The Court did not examine whether Japan’s conduct in operating the “comfort houses” fell within the commercial activity exception of the Foreign Sovereign Immunities Act (28 USC §1605(a)(2)) because it concluded that the exception itself was not applicable to the conduct in question because the exception does not have, and was not intended by Congress to have, retroactive effect. It cannot therefore apply to conduct prior to 1952 (paras. 14-34).

The appeal is dismissed (para. 39-40).