Japan Should Take Responsibility for “Comfort Women” Now

Legal accountability is the most effective way to heal Japan’s relationship with South Korea and strengthen its relationship with the US.

Key US security partners Japan and the Republic of Korea are holding consultations to mend fissures from decades of inadequate resolution of Japan’s World War II atrocity crimes against Koreans. Japan’s lack of legal accountability for its sexual enslavement of tens of thousands of Korean women and girls (so-called “comfort women”) degrades the Japan-ROK relationship. This rift also harms US interests because strong Japan-ROK-US trilateralism is critical for security as the United States — with its allies — seeks to counter North Korea’s nuclear threat and China’s rise.

In 2015, Japan and South Korea announced non-legally binding statements that intended to close the sexual slavery issue “finally and irreversibly.” This 2015 Announcement stipulated that South Korea would set up a foundation that Japan would fund for the care of the few “comfort women” still alive, and Japan and South Korea would refrain from criticizing each other at the UN. In addition, then-Japanese Prime Minister Shinzo Abe said he expected a key symbol of the “comfort women,” a small statue of a girl, to be removed from the vicinity of the Japanese Embassy in Seoul. Japan provided about $8.3 million to the foundation, avoiding direct compensation to individual victims and instead calling it a “humanitarian contribution.”

South Korean President Park Geun-hye had agreed to the announcement because conservatives have long prioritized ways to improve relations with Japan, a neighbor and important trading partner, and she also wanted to resolve the issue before the elderly victims died. But the announcement hasn’t had the impact either government envisioned — and now Japan blames South Korea for ongoing tensions regarding its brutal enslavement of the “comfort women.”

A SHAKY FOUNDATION FOR ACCOUNTABILITY 

The 2015 Announcement immediately provoked outrage from many Koreans and led former ROK President Moon Jae-in to dismantle the foundation. The UN agreed the announcement utterly failed to meet international justice standards against atrocity crimes. Victims, who must be at the center of transitional justice, were not adequately consulted in the deal between the perpetrator state and its former colony. Closing the issue “finally and irreversibly,” with Japan seeking to remove the “comfort women” statues, was the opposite of international standards.

Koreans — and the world — must remember Japan’s crimes as a matter of principle for the sake of the victims and justice. And South Korea’s efforts to improve relations with Japan must be grounded by such principles.

Financial assistance and apologies are merely elements of a long healing, which should include criminal prosecutions, legal responsibility, memorialization, testimonies of the victims and other records for history, and education to prevent such atrocities from happening again — all of which were missing in the 2015 Announcement. In addition, raising the issue at the UN when the perpetrator state refuses to accept legal accountability is imperative. Instead, Japan aggressively shirks responsibility internationally. An example was in September 2021 when Japan protested to Germany against a Berlin district’s display of a “comfort women” statue that Korea Verband, a local nonprofit, had installed to raise awareness about the women.

That a statue in Germany would persist, despite Japan’s diplomatic pressure, is a testament to the divergent paths the two World War II partners have taken. Unlike Germany, Japan veered off the road to full reconciliation with its former enemies. Japan denied the term “sexual slavery,” although the term “slavery” for the mass systematic rape was not hyperbole; it was a legal term established as an international law violation at the time when Japan perpetrated it, based on Japan’s own admission that the women and girls were deprived of their freedom. Former German Chancellor Angela Merkel advised Japan in 2015 to “call things by their name.”

Calling crimes by their name strengthens the rules-based order championed by the United States. Instead, Japan compounds victims’ grievances by mixing apologies (including the 2015 Announcement) with denials that the women were coerced, dodging legal responsibility, actively campaigning against victims’ advocacy internationally, and failing to educate its younger generation about the truth of its crimes. These failures contrast sharply with Germany, which embraced its legal responsibility, including through the payment of $90 billion in reparations and pensions to victims of the Holocaust that continue to this day.

Japan blames South Korea for moving the goalposts by not adhering to the 2015 Announcement. The problem, however, is that Japan never paid attention to goalposts long established by international law and standards repeatedly articulated by the UN, which despite its own problems, is considered the foundation of the rules-based international order. The magnitude of Japan’s atrocity crimes — raping victims, including to death; permanently disfiguring victims; and other profound assaults that constituted torture during enslavement — makes them unforgettable. Glossing over them with a shallow deal will never lead to true healing. Indeed, Koreans — and the world — must remember Japan’s crimes as a matter of principle for the sake of the victims and justice. And ROK President Yoon Suk-yeol’s efforts to improve relations with Japan must be grounded by such principles.

Although in flux, ROK courts also understand the claims against Japan for crimes against humanity. On Jan. 8, 2021, Seoul Central District Court ruled in favor of 12 “comfort women” and ordered Japan to pay them about $91,800 each. The court determined that Japan could not shield itself by invoking sovereign immunity against jus cogens crimes, which are crimes so significant that they pre-empt other rules of international law. However, in April 2021, the court (with a different panel) ruled that Japan’s sovereign immunity shielded it from another group of “comfort women’s” claims, which reflected current customary international law.

South Korea’s forced labor rulings also have cut both ways. All parties are now awaiting further court decisions on these issues. South Korean courts must be strong and have the courage to evolve customary international law in favor of the “comfort women,” as the Seoul Central District Court did in January 2021, and also correctly hold that a 1965 Japan-ROK treaty that settled claims permanently did not cover sexual slavery. When Japan retaliates, the United States, the UN, and any country that cares about the rule of law must seek to quash it through robust pressure.

JAPAN’S NEW STRATEGY 

Although Japan will protest, pressuring it to abide by international law and accept legal responsibility for its crimes aligns with the United States’ emphasis on defending the rules-based order, which Japan’s failure glaringly contradicts. At the same time, the United States enthusiastically supports Japan’s quest to improve its military capabilities. Japan’s accountability and its strengthening military are compatible; indeed, the former enhances the latter because it makes close relations and interoperability between Japan and ROK possible, thereby bolstering the trilateral relationship’s capabilities.

Japan’s rising military strength could perhaps provide the only context in which Japan’s acceptance of legal responsibility could occur.

With the rise of China, China’s interest in Taiwan, and North Korea’s provocations, the United States is correct to welcome Japan’s strengthening military and encourage strong trilateral relations. In December 2022, Japanese Prime Minister Fumio Kishida stated that Japan was now “at a turning point” when Japan announced milestone changes to its national security strategy, including acquiring counterstrike capabilities to be able to hit enemies with long-range missiles and ramping up its defense budget to 2% of its gross domestic product over five years, which would make it the third largest in the world after the United States and China.

Japan’s rising military strength could perhaps provide the only context in which Japan’s acceptance of legal responsibility could occur. Right-wingers now enjoying unprecedented military spending, within this context of strength, could possibly accept legal responsibility and transitional justice as a comparatively small concession appropriate for its “turning point,” potentially reassuring former enemy countries that may be wary of its return toward military predominance. By doing so, Japan’s stature could be enhanced, as Germany’s accountability has done for it, and it would be a smart strategy for it to genuinely move on from its dark World War II past.

While strongly supporting Japan’s military strengthening, the United States must lean hard on Japan to accept its full legal responsibility, even though Japan is unlikely to do so. The issue is firstly about perpetrator vs. victim, placing the onus on Japan to rectify its injustice. US pressure is essential because Japan cares about the United States much more than it cares about South Korea.

HOW TO MOVE FORWARD

The most effective way to heal the weakest link in the Japan-ROK-US relationship for countering North Korea and China is for Japan to accept legal responsibility rather than shallow deals that allow Japan to dodge it. Japan should emulate its World War II partner Germany in fully embracing accountability. South Korea — including its courts and civil society — must be strong in upholding the rights of Japan’s victims so that Japan and ROK can truly look forward. While championing Japan’s military strengthening, the United States must pressure Japan to take legal responsibility for its crimes, which aligns with the US commitment to the rules-based order.

Overlooking Japan’s legal responsibility for the sake of security fails to address the source of tensions that diminish security. In contrast, Japan’s respect for international criminal law would allow Japan and South Korea to look forward to a brighter future together instead of perpetuating a long-oozing wound. Legal accountability is the only genuinely effective way to strengthen the Japan-ROK link of the US trilateral relationship. True security would be enhanced, not diminished if Japan embraced true accountability for its crimes.

Grace M. Kang, Esq., is the author of “Resolving the Japan-Korea ‘Comfort Women’ Conflict: The Most Effective vs. The Most Likely Solution” in the Journal of East Asian Affairs. She has written about human rights and international relations in the Columbia Human Rights Law Review, Georgetown Security Studies Review Forum, Stanford Journal of International Relations, Cambridge Review of International Affairs, International Herald Tribune, and other publications. She is an associate at the Institute for Corean-American Studies, a former US State Department official, a former visiting assistant professor at Seoul National University, and Columbia Law School graduate with long experience in human rights.