Tokyo Keeps Defending World War II Atrocities

Japan's legal excuses over slave labor are weak at best.

South Korean protesters sit near a statue of a teenage girl symbolizing former "comfort women", who served as sex slaves for Japanese soldiers during World War II, during a weekly anti-Japanese demonstration in front of the Japanese embassy in Seoul on November 21, 2018.
South Korean protesters sit near a statue of a teenage girl symbolizing former "comfort women", who served as sex slaves for Japanese soldiers during World War II, during a weekly anti-Japanese demonstration in front of the Japanese embassy in Seoul on November 21, 2018. Jung Yeon-Je/AFP/Getty Image

Imperial Japan annexed the Empire of Korea in 1910 as a critical step in the colonial project that would eventually lead to its alliance with Nazi Germany and fascist Italy.  Over a million Koreans would be conscripted as slave labor for Japan’s war effort—not counting the hundreds of thousands of women forced into sexual slavery for the Japanese army. Lee Chun-sik, now in his nineties, was one of the many who were forced into slave labor. Lee did grueling and dangerous work at a steel mill in Japan, receiving no pay, little food, and regular beatings. In 2005, Lee and three other former forced laborers sued Nippon Steel & Sumitomo Metal Corporation, the successor of the wartime steel mill, in the South Korean courts after losing an earlier lawsuit they filed in Japan. In October 2018, after a long legal battle, Lee prevailed in the Supreme Court of Korea. After 13 years of litigation, Lee is the only one of the plaintiffs still alive.

The suffering of Lee and many others is historical fact. But if you went by the Japanese government’s hysterical reaction—accusing its neighbor of “trying to shift South Korea’s responsibility” over the wartime forced labor—you might think it was Korea that was the villain of this story. Following the Supreme Court’s decision, Tokyo has threatened to recall its ambassador to South Korea, levy sanctions against South Korean exports to Japan, seize South Korean government property in Japan, and reintroduce visa requirements for visiting Korean tourists. Japanese Foreign Minister Taro Kono even demanded South Korean President Moon Jae-in intervene with the Supreme Court’s decision—a ridiculous request to make against a constitutional democracy that mandates separation of powers.

Japan claims its self-righteousness stems from respect for international law, and that South Korea has violated the treaties into which the two countries entered in 1965. The treaty established a basic diplomatic relationship between the two countries in the aftermath of imperial Japan’s defeat in World War II and Korea’s independence. Japan has long argued that the 1965 treaties put an end to any obligation for Japan to compensate Korea for its colonialism and war crimes, as Japan paid $300 million (the equivalent of about $2.28 billion today) and loaned an additional $500 million to South Korea to settle Korea’s claims.

The South Korean public has little patience for this argument. After all, it was the dictator Park Chung-hee—a former jmperial Japanese military officer who came to power by rolling tanks into Seoul to overthrow the democratically elected government—who negotiated the treaties, away from the public view. Immediately after the 1965 deal was concluded, Park had to declare martial law over Korea to quell protests against the terms of the treaties.

But even accepting the legitimacy of the 1965 treaties, Japan’s legal theory is more tendentious than it lets on. To begin with, it’s far from clear whether the 1965 treaties actually waived private claims held by individual Koreans who were victimized by imperial Japan. The diplomatic documents related to the negotiation process of the 1965 treaties (which were not made public until 2005) show that Japan consistently refused to acknowledge it had any liability to Korea arising from its colonial rule, as Japan refused to acknowledge the illegitimacy of its colonization of Korea.

Accordingly, the 1965 treaties make no reference to whether Japan’s colonial rule over Korea had any legitimacy. If Japan’s negotiators for the 1965 treaties, representing the administration led by Prime Minister Hayato Ikeda, truly believed that Japan owed nothing to Korea, and if the treaty’s text makes no reference to whether imperial Japan committed any wrong to Korea for which compensation is required, it follows that whatever money Japan paid to Korea pursuant to the treaties settled nothing. Indeed, while answering questions about the treaties to Japan’s legislature in 1965, Foreign Minister Etsusaburo Shiina characterized the payment not as reparations for a wrong, but as a congratulatory gesture for Korea’s independence. A state cannot bargain in a treaty for something it never admitted to in the first place.

Even if South Korea and Japan did intend to make such a bargain, such agreement would be void based on well-established principles of international law. Jus cogens, or peremptory norm, provides that a state cannot sign away its people’s human rights through a treaty. If it were otherwise, for example, a country would be able to legally sell a portion of its population into slavery. Accordingly, Article 53 of the Vienna Convention on the Law of Treaties states: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.”

The mandate of peremptory norm is so paramount that, according to Article 64 of the Vienna Convention, the emergence of a new peremptory norm voids all existing treaties that conflict with the new norm. (Both Japan and South Korea are signatories to the Vienna Convention, although a peremptory norm applies throughout the world without reference to whether a country signed any specific treaty.)

It is beyond dispute that wartime slavery violates such norms. In fact, prohibition of slavery is one of the earliest peremptory norms to be recognized in modern international law, along with prohibitions against torture and massacre of civilians. Although a peremptory norm’s validity does not depend on the perpetuators’ understanding of it as a violation at the time, it is also absolutely clear that imperial Japan recognized prohibition of slavery as an international peremptory norm, as it was a signatory to treaties prohibiting slavery as early as 1925. Even if the South Korean dictatorship intended to waive individual Koreans’ claims arising from imperial Japan’s conscription for slave labor, such attempts would have no effect.

These legal arguments are not anything new. They are based on long-standing principles of law that have been constantly reaffirmed, including in the specific context of Japan’s colonial rule over Korea and the 1965 treaties. For example, it has been more than two decades since the United Nations special rapporteur on violence against women found that Japan had the legal obligation to compensate former military sex slaves. In the 1996 report for the U.N. Commission on Human Rights, the special rapporteur rejected the Japanese government’s position that the 1965 treaties extinguished the claims of the former “comfort women” based on the same principles as above: Claims based on violation of fundamental human rights cannot be waived via treaty, and at any rate Japan did not bargain for the waiver of these claims in the 1965 treaties.

The South Korean Supreme Court’s decision on Nippon Steel’s use of slave labor follows the same logic. Given the settled nature of these points, waiving the 1965 treaties at South Korea simply will not do. At a minimum, any argument in favor of Japan’s position must state how a country may legally sign away the human rights of its people, and how a country can purport to settle a wrong while denying the existence of any wrong.

The easy way out for Japan—which it can still take—is simply to wash its hands of the South Korean Supreme Court opinion, stating only that it is a matter between two private parties. The financial downside for Japanese corporations is limited, as there are fewer than a thousand surviving Koreans who were previously put through forced labor during World War II. Even in the unlikely case that the South Korean courts award every single one of them the same amount that Lee Chun-sik won (which is slightly less than $100,000), the total cost would be less than $100 million—a far cry from, say, the $70 billion that Germany has paid thus far to Jewish survivors of the Holocaust. Each time such a judgment is paid out would be an opportunity for Japan to demonstrate to its former colonies and the world that it became a very different kind of country after the end of World War II, and that it has renounced the toxic legacy of imperialism.

Instead, the Japanese government is reacting with over-the-top histrionics, threatening government action against a lawsuit to which it was not even a party—as if Nippon Steel’s use of slave labor during the colonial era is a matter of national honor for 21st-century Japan. Apologists for Japan often claim that it is unfair for South Korea to hold today’s Japan responsible for the past it renounced. But by putting such energy and emotion  into defending a private company’s slavery in the 1940s, Japan is the one clinging to an imperial past.

S. Nathan Park is an attorney at Kobre & Kim LLP based in Washington, D.C., and an expert in East Asian politics and economy.

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