Symposium: The Second World War in Asia: Justice Efforts, War Memory, and Reparations
Northeast Asia’s War Reparations Movement:
Towards the Messy Uncertainty of Democracy,
Civil Society and Rule of Law
by Professor Timothy Webster (Western New England University School of Law)
Published on 30 September 2022
For the past thirty years, domestic courts in the Asia-Pacific have presided over hundreds of lawsuits stemming from World War II. While these cases have largely played out in Japan, China and the United States, judges in South Korea are reviewing a number of important decisions at the moment. Seventy-seven years after the end of the war, Korean forced laborers and “comfort women” still seek compensation and apologies from the Japanese government and several Japanese multinationals. Following a pair of unprecedented decisions from the South Korean Supreme Court in 2018, Korean trial and appellate judges have arrived at contradictory conclusions about war redress issues. Since then, Koreans courts have found both for and against Korean plaintiffs —an incongruity that highlights the delicacy of the war reparations issue (even in a liberal democracy known for its nationalism and anti-Japanese sentiment), and the irresolution of previous settlement efforts.
The explosion of transnational litigation represents the convergence of numerous factors, and the collision of competing narratives about the war. This short contribution calls attention to the legal, sociological, historical, political, and diplomatic aspects of the war redress movement in Northeast Asia (China, Japan, Korea, Taiwan). These, in turn, reflect structural changes within the region: democratization, economic development, and the rule of law.
The current movement has regional antecedents. In the 1970s, South Korean and Taiwanese citizens (formerly, colonial subjects of the Japanese Empire), along with Japanese intellectuals, questioned the adequacy of the war redress efforts along three vectors. First, South Korean victims of the atomic bombing of Hiroshima and Nagasaki sought medical attention for various ailments, yet Korean facilities did not offer the same advanced treatments as Japanese hospitals. Korean survivors then started to enter Japan illegally to seek medical treatment. While many were arrested and deported, one man, Son Jin-du, brought a legal challenge against Japan while in detention, demanding access to the same benefits that Japan provided to its own citizens. His success at trial, appellate and supreme courts suggested that courts could play a role in war redress.
Second, Korean residents of Sakhalin Island demanded repatriation. In the early twentieth century, Japan encouraged tens of thousands of ethnic Koreans to leave the peninsula and go to Sakhalin Island, a territory that Japan had prised from Imperial Russia in 1905. After World War II, Japan evacuated ethnically Japanese residents of Sakhalin, but left the ethnic Koreans behind, to be absorbed by the Soviet Union. Thirty years later, many Sakhalin Koreans hoped to return to the Korean peninsula (which had been divided during the interim). A group of Japanese lawyers, after securing power of attorney from Koreans in Sakhalin, filed a lawsuit in 1975. While the lawsuit did not succeed, the effort showed the importance of courts in framing the issue, reaching a new audience, and prodding the state to act.
Third, Taiwanese veterans of the Japanese Imperial Army also demanded access to social benefits. Decades after they had lost their Japanese nationality, Taiwanese veterans wanted medical services and pensions, while families of soldiers killed in action wanted bereavement payments, all social benefits that Japan freely provided to Japanese citizens. Together with academics associated with Meiji University, and lawyers from the Japan Civil Liberties Union, Taiwanese veterans filed a high-profile lawsuit in the Tokyo District Court. Though unsuccessful at all three levels, activists succeeded in pressuring Japan’s Diet to pass the 1987 Taiwan Veterans Act—a rare piece of legislation to benefit foreign (i.e., non-Japanese) citizens for wartime conduct.
In the 1990s, a new wave of redress issues arose. While the 1970s cases focused on Japan’s treatment of its former colonial subjects, the contemporary redress movement (1990-present) broadened the lens to include damage that Japan visited upon its former “enemies”: China, Netherlands, Philippines (during the war, a U.S. colony), and so on. To be clear, Korean and Taiwanese citizens continued to bring equality-type claims similar to those filed in the 1970s. But the remit expanded to include issues such as (a) Japanese enslavement of Chinese and Korean men, (b) the “comfort women” issue, and (c) civilian damage from mass atrocities (e.g., Rape of Nanjing, Unit 731 human medical experimentation).
The “comfort women” issue is the most well-known of these issues. In 1991, after 45 years of silence, ostracization, and stigma, “comfort women” from numerous jurisdictions publicly acknowledged that they had been forced, deceived, or misled into the Japanese military’s system of sexual servitude. The women, who had kept silent for decades, told horrific stories: of parents who sold them into prostitution as children; of recruiters that made false promises about lucrative job opportunities abroad; of soldiers who seized them on the battlefield, raped them repeatedly, and confined them into makeshift huts and caves. In many cases, “comfort women” told their stories —in Japanese, Korean, Chinese, Tagalog, and other languages— to Japanese judges in court. At a time when Japanese politicians continue to deny state involvement in the “comfort women” system, these testimonials serve a vital authenticating function. The fact that most “comfort women” lawsuits would end up in dismissal, however, suggests limitations of public law litigation.
Somewhat lesser known is the forced labor issue. During the late 1930s, Japan passed a mobilization law to conscript hundreds of thousands of Koreans into Japan’s war effort. They worked at foundries, mines, munitions factories, and other perilous workplaces, usually for Japanese companies. When these efforts failed to resolve wartime labor shortages, the Japanese Army seized tens of thousands of Chinese civilians, shipped them to Japan, forced them to work in hundreds of sites throughout the archipelago. Forced laborers from China and Korea have filed dozens of lawsuits in multiple jurisdictions, from Los Angeles to Niigata, Beijing to Busan. These cases for the most part failed, but recent rulings from Seoul suggest compensation is still a possibility for some Koreans.
Finally, numerous lawsuits have demanded reparation for some of Japan’s most notorious war crimes, including the Rape of Nanjing, the use of chemical weapons, and Unit 731—where Japanese army doctors practiced human medical experimentation on Chinese prisoners of war. These lawsuits have also failed, but they have drawn renewed attention to a range of underlying legal, historical and humanitarian issues.
What is the effect of these lawsuits? As litigation is ongoing in South Korea, it would be premature to make any firm conclusions. Yet a few lessons can be distilled.
First, the war reparations movement is, in fact, the linkage and efflorescence of numerous micro-movements in each country. In 1990, a South Korean academic mobilized feminist colleagues to take up the “comfort women” issue; litigation in Tokyo followed a year later. In 1986, a Chinese veteran returned to Japan to attend the commemoration of an insurrection that he led as a forced laborer against a Japanese mine in 1945; he would be the first Chinese citizen to file civil litigation in 1995. In 1990, a young Chinese academic, after several rejections, published a provocative petition to demand war reparations from Japan; he would go on to help dozens of compatriots file lawsuits in Japan. During a 1994 a study tour of China, Japanese attorneys learned of Chinese efforts to seek reparations; they interviewed Chinese survivors, made several more trips to China, and then represented survivors in court. Any one of these people could be credited with launching the war reparations movement. The fact that they did so independently of each other —in different countries with divergent histories, modes of governance, and memories of the war—reflects widespread discontent with the state of war reparations in Northeast Asia.
Secondly, the movement marks a major shift from the state monopoly on foreign affairs and towards individual citizens’ vindicating their rights. These lawsuits frontally challenged bilateral treaties and international agreements that Japan negotiated with three different dictatorships: Taiwan (1952), South Korea (1965), and China (1972). If the turn towards litigation is any indication, citizens from these three countries apparently did not believe their governments sufficiently represented their interests in the negotiations. In Korea, for instance, the government held the view that the 1965 Treaty extinguished all individual compensation claims. But in 2005, after fifteen years of litigation in Japan, and five years of litigation in Korea, a commission —reviewing recently declassified documents from the treaty negotiations— concluded that the treaty did not waive individual rights to seek compensation. This interpretation has animated the recent South Korean decisions favoring South Korean plaintiffs. Meanwhile, the Chinese government, under public pressure, acknowledged that the 1972 Joint Communiqué did not waive individual claims of Chinese citizens. The Chinese government has not, however, been nearly as forceful as the South Korean government in advocating for its citizenry.
Thirdly, the movement has transferred power from the political branches towards the judiciary. This raises important questions about governance and separation of powers: Who speaks for “the” government? What role do courts play in reviewing treaties? Should courts channel public opinion towards the other branches? How? The South Korean Supreme Court in particular has taken a muscular—some would say disproportionate—approach to the issue, by overturning lower court decisions that consistently favored Japanese interests. This reversal has, in turn, pressured the South Korean government (executive branch) to review the war reparation issue, and negotiate with Japan about how to resolve these issues.
Those negotiations—currently ongoing—will be difficult and perhaps inconclusive. Whatever their outcome, the war reparations issue has made a deep impact on Northeast Asian society, law, diplomacy, and history. The final outcome will probably lack the finality and pomp that accompanied war redress efforts in Europe and the United States in the 1990s and 2000s. But they reflect an embrace of human rights, consolidation of democracy, and empowerment of civil society that bodes well for the governance of the region.