Friday, September 06, 2019

Korea-Japan and the End of the '65 System - Part III: The Rise of the '65 System

[Series Index]

For approximately 25 years, the ’65 System functioned exactly as intended. Japan and South Korea would build a close economic relationship, while the historical issue was in the backburner. For a time, this was possible because South Korea’s dictators Park Chung-hee and Chun Doo-hwan muzzled the victims of Japan’s imperialism. But starting in the 1990s, the ’65 System was showing the possibility that it could become more than an uneasy patch-up job.

Japan's student protesters tussle with the riot police in Shinjuku, Tokyo. c. 1969 (source)

Around the time the two countries signed the ’65 treaties, both Japan and South Korea saw an awakening of progressive politics, in tune with the worldwide movement of activism. In Japan, massive student activism broke out throughout the 1960s, protesting the security treaty between US and Japan, Kishi Nobusuke government’s attempt to revise the Peace Constitution, the Vietnam War, and even the ’65 treaties. This generation of Japanese students, in groups such as Zengakuren and Zenkyoto, would mature to form the backbone of Japan’s liberal politics.

South Korea’s path was darker, as it was under a more overtly oppressive dictatorship that made less pretensions of being a democracy. The brief hope of freedom after Park Chung-hee’s death in 1979 was immediately dashed by the emergence of the next dictator Chun Doo-hwan, who massacred hundreds of protesters in Gwangju on May 18, 1980. But finally in 1987, the massive June Struggle would peacefully depose Chun’s dictatorship, and South Korea would successfully transition into a civilian-led government in 1993. Similar to Japan’s Zenkyoto Generation, South Korea’s ’87 Generation would form the mainstream of South Korea’s liberal politics.

The 1990s offered hope. The fall of Soviet Union in 1991 ended the Cold War, and with it, the need to maintain the anti-communist drive that permitted illiberal tactics of Japan’s conservatives and South Korea’s dictatorship. Korea hosted the 1988 Seoul Olympics, showcasing to the world the free and prosperous country rebuilt from war and destruction. By 1990, South Korea was a top 20 economy in the world, ahead of such countries as Sweden and Switzerland. 

Meanwhile in Japan, the Showa Era ended with the death of Emperor Hirohito in 1989. The succeeding Emperor Akihito, who opened the Heisei Era, began his reign with a series of high-profile visits to Thailand, Malaysia and Indonesia, showing remorse and contrition to the victims of Japan’s Imperialism. In 1993, Japan’s LDP lost its majority in the legislature for the first time in 38 years, leading to the first non-LDP post-war Prime Minister in Hosokawa Morihiro. As Korea was freer and wealthier, Korea’s survivors of Japanese imperialism could speak out—and Japan was ready to listen.

(More after the jump.)

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On August 14, 1991, 67-year-old Kim Hak-sun held a press conference in Seoul to give the first public testimony on the existence of “Comfort Women”—euphemism for wartime sex slaves that Imperial Japanese Army kept in rape stations near the front line, to be forced to have sex with soldiers dozens of times a day. Kim was traveling through Beijing with her father and sister, when the Japanese military arrested her father. On the same night, the Japanese military officers raped Kim and her sister, then placed them in the “Comfort Station” in Beijing. She managed to escape to Shanghai after four months, then returned to Korea after liberation.

Kim Hak-sun at the press conference in 1991, publicly raising the issue of Imperial Japan's
wartime sex slaves for the first time. Kim would continue her activism until her death in 1997. (source)

Kim’s courageous testimony caused more survivors stepped forward to testify. (Among them was the recently deceased Jan Ruff-O’Herne, a Dutch-Australian woman who was kidnapped in Indonesia to be placed in one of Imperial Japan’s rape stations.) Investigation revealed as many as 200,000 women were placed in the rape stations, recruited under false pretenses in some cases and outright kidnapped like Kim Hak-sun in other cases. In 1996, the United States Commission of Human Rights issued a special report on the former Comfort Women, making clear that Japan was still obligated to make reparations to the survivors regardless of the Settlement agreement: “neither the San Francisco Peace Treaty nor the bilateral treaties were concerned with human rights violations in general or military sexual slavery in particular.”

The Japanese government initially resisted accepting responsibility for Comfort Women, but to its credit, it did. In 1993, Chief Cabinet Secretary Kono Yohei issued a statement acknowledging “the military authorities of the day” were involved in running the rape stations, and expressed the Japanese government’s “sincere apologies and remorse to all those . . . who suffered immeasurable pain." This led to a broader recognition from Japan’s part to acknowledge its colonial past. Two years later for the 50th anniversary of the end of World War II, Prime Minister Tomiichi Murayama of the Social Democratic Party—Japan’s first post-war socialist leader—issued the historic Murayama Statement: “through its colonial rule and aggression, [Japan] caused tremendous damage and suffering to the people of many countries, particularly to those of Asian nations. . . . I regard, in the spirit of humility, these irrefutable facts of history, and express here once again my feelings of deep remorse and state my heartfelt apology.” 

It must be said that Japan’s progress was a halting one. Many in Tokyo found reckoning with the past to be a capitulation, and reacted with revisionist claims. Many in the Japanese government—including Foreign Minister Watanabe Michio, Education Ministers Fujio Masayuki and Shimamura Yoshinobu, Land Minister Okuno Seisuke—claimed that Imperial Japan’s war was a “war of liberation” (Okuno), annexation of Korea was a “friendly agreement” (Watanabe) that was “done voluntarily” (Fujio), and Japan had no reason to apologize for its war (Shimamura). Murayama himself would dilute the meaning of his apology, he remarked two months after his statement that Japan’s 1910 treaty that annexed Korea was legally valid at the time. 

Seen in light of these remarks, Koreans saw Japan’s new apologetic stance to be a half-hearted foot-dragging. For example, majority of the former Comfort Women refused to accept money from the Asian Women’s Fund, established by the Murayama administration to pay reparation. To the former wartime sex slaves, the fact that Asian Women’s Fund was a private foundation funded by private donation rather than government funding was a sign that Japan was still trying to avoid legal responsibility, regardless of what its statement said.

Japan's Obuchi Keizo (left) shakes hand with South Korea's Kim Dae-jung, c. 1998,
in a summit meeting that resulted in the Kim-Obuchi Statement. (source)

Yet overall, the relationship between Korea and Japan was on an upward trajectory throughout the 1990s. In 1998, Kim Dae-jung became the first South Korean president to visit Japan. At the conclusion of the visit, he made a joint declaration with Prime Minister Obuchi Keizo, promising to move forward from the past, commit to democracy and market economy, encourage cultural exchanges and assist each other’s foreign policy agendas, including South Korea’s Sunshine Policy for North Korea and Japan’s greater involvement in the world affairs. Immediately following the declaration, South Korea and Japan opened each other’s markets for pop culture products. 

Some in Korea feared such an opening would lead to an onslaught of Japanese movies, dramas and pop music in Korea. That did happen, to a degree: Koreans who had always consumed bootleg Japanese anime could now watch them legitimately on cable TV. With Koreans becoming more comfortable with consuming Japanese culture, hip neighborhoods in Seoul would be lined with Japanese style izakayas. But the trend in reverse was even more powerful: the budding Korean pop culture products, including K-pop and Korean dramas, would sweep the Japanese market, setting the stage for global Korean pop culture in the 2010s. In 2003, BoA would become the first of many K-pop artists who would top the charts in both Korea and Japan. In the same year, Korean drama Winter Sonata would become the first non-Japanese drama to crack 20% viewership rate in Japan.

The positive trend continued through late 2000s, especially as the Democratic Party of Japan held government from 2009 to 2012. The high point came in the statement by Prime Minister Kan Naoto in 2010, to mark the 100 year anniversary of Japan’s annexation of Korea: “I would like to face history with sincerity. I would like to have courage to squarely confront the facts of history and humility to accept them, as well as to be honest to reflect upon the errors of our own. Those who render pain tend to forget it while those who suffered cannot forget it easily. To the tremendous damage and sufferings that this colonial rule caused, I express here once again my feelings of deep remorse and my heartfelt apology.”


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Along this upward trajectory was a series of courtroom battles surrounding the treaties of 1965. A treaty is not merely a political document; it is also a legal document, subject to interpretation by domestic and international tribunals. Any contentiously negotiated contract that leaves key concepts ambiguous is bound to invite litigation to clarify the contract’s parameters. So, too, was the case with the treaties of 1965. As both Japan and Korea liberalized in the 1990s, the former wartime slaves and former sex slaves began pursuing their own claims against Japanese government and corporations in their individual capacity. And over time, they won.

Their claims came to be centered on a critical issue, left unaddressed in the Settlement Agreement: did the ’65 treaties, signed by the states of Japan and the Republic of Korea, extinguish the claims held by the individuals? In other words, were the individuals free to sue and enforce their own claims, regardless of what the treaties said? As discussed earlier, at the moment of entering into the ’65 treaties, Japan’s answer was a clear “no”. 

Indeed, Japan’s position that a treaty does not extinguish a claim held by an individual dates back beyond the ’65 treaties. In 1956, two American soldiers robbed and shot a Japanese civilian. The civilian sued the Japanese government for his injury based on the theory that, because the Japanese government extinguished his claim against the American soldiers in the Treaty of San Francisco, the government must be answerable to his claims instead. The Japanese government appeared in the case, titled Horimoto v. Japan, and stated its position: the Treaty of San Francisco only waived the diplomatic protection that the Japanese government might provide to its individual citizens to help pursue the claim, and the claim itself was not waived. 

When the court ruled against the government’s position, the Japanese government appealed and repeated the same argument: “because the claims were not owned by the government to begin with, there should not be a situation where individuals lost their claims as a direct result of a treaty no matter what promise their government made by signing a treaty with a foreign country.”

The Japanese government restated this exact same position for the next several decades. In the celebrated case of Shimoda v. Japan in 1963, victims of atomic bombings of Hiroshima and Nagasaki sued the Japanese government for compensation, arguing they would have been entitled to compensation from the United States if Japan had not sign away their rights in the Treaty of San Francisco. The Japanese government again stated: “The government of Japan, by Article 19(a) of the Peace Treaty, did not waive its nationals’ individual claim for damages against the government of the United States . . .” 

In 1989, the Japanese victims of Siberian internment camps—former Manchurian dwellers who were imprisoned by the Soviets—sued the Japanese government under the same theory, in a case called Nikaido v. Japan. Again, the same position: “the claims that Japan waived by Article 6(2) of the Joint Declaration by the USSR and Japan were claims owned by the government of Japan itself and diplomatic protection, and the claims owned by the Japanese national individuals were not waived.” In another Siberian internee case called Matsumoto v. Japan from 2000, the Japanese government repeated the same point.

The Japanese government repeatedly re-affirmed this position before its legislature as well. In 1980, addressing the Siberian internee issue, Cabinet Legal Bureau’s Tsunoda Reijiro stated to the Diet: “claims owned by Japanese nationals as individuals were not waived.” Again on the Siberian internee issue, Foreign Ministry’s Takashima Yushu repeated the same point in 1991: “Not having waived individual claims means that individual claims based on the domestic legal system of the Soviet Union have not been waived.”

Most importantly for the Korean victims of imperialism, Foreign Ministry’s Yanai Shunji testified before the Diet in 1991: “all claims that had existed between Japan and Korea, including nationals’ claims, were settled—meaning that both Japan and Korea renounced the right of diplomatic protection they retained as states. Therefore, it does not mean that so-called individual rights themselves were extinguished in the sense of domestic law.” Even as recently as 2018, Japan’s Foreign Minister Kono Taro testified before the Japanese legislature that the Settlement Agreement did not extinguish claims held by individuals.

To be sure, much of Japanese government’s hair-splitting distinction between “withdrawal of diplomatic protection” and “extinguishment of individual rights” is a transparent ploy to avoid having to pay reparations for Japanese citizens who suffered in World War II—an “interpretive acrobatics”, as Professor Lee Keun-gwan of Seoul National University Law School drily noted. Ironically, however, the idea that states cannot arbitrarily extinguish claims held by individuals, especially when the claim relates to human rights violations, began gaining currency in international law. For example, in the 2001 case of Prince Hans-Adam II of Lichtenstein v. Germany, the European Court of Human Rights assessed whether the 1952 treaty that settled claims from World War II legitimately settled a claim held by an individual. 

Former Comfort Women Gil Won-ok (left) and Kim Bok-dong step out of Seoul Western District Court, c. 2014
(source)
Relying on this stance by Japan, victims of Japanese imperialism began their legal battles in Japan, United States, South Korea and elsewhere. At first, they lost more than they won. In 2006 in the US, for example, former Comfort Woman Hwang Geum-joo lost her case before the DC Circuit Court, which found the case a non-justiciable political question. Aided by conscientious Japanese attorneys, some of the former wartime slaves sued Nippon Steel, Japan Steel and Fujikoshi munitions company in Japanese courts. The plaintiffs lost these cases, but settled with the defendants before appealing or bringing another case in a different forum. These settlements, which were entered between 1997 and 2000, were miniature versions of the Settlement Agreement between Republic of Korea and Japan: a sum of money paid with no description attached, and a vague expression of sympathy with no acknowledgment of legal liability. 

But they also won big victories. A major victory came in 1996, when the UN Commission on Human Rights issued a special report on wartime sex slaves and specifically rejected the Japanese government’s argument that the ’65 treaties covered the claims of the former Comfort Women: 
“The Special Rapporteur is of the view that neither the San Francisco Peace Treaty nor the bilateral treaties were concerned with human rights violations in general or military sexual slavery in particular. The ‘intent’ of the parties did not cover the specific claims made by ‘comfort women’ and the treaties were not concerned with human rights violations of women during the conduct of the war by Japan. It is, therefore, the conclusion of the Special Rapporteur that the treaties do not cover the claims raised by former military sexual slaves and that the Government of Japan remains legally responsible for the consequent violations of international humanitarian law.” 
Another major victory came in 2011, when the former military sex slaves sued the Korean government before the Constitutional Court of Korea, arguing the Korean government failed to carry out its duty owed to the former Comfort Women by failing to negotiate a proper reparation. 


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In 2012, the most important legal victory came. The former wartime slave laborers from Korea sued Mitsubishi Heavy Industries for damages, and the Supreme Court of the Republic of Korea found in the plaintiffs’ favor. The 2012 slave labor decision is particularly important, because it strikes at the heart of every piece of ambiguity left open by the ’65 treaties.

Plaintiffs of the Mitsubishi case, former wartime slave laborers and their family,
give a press conference after their Supreme Court victory. c. 2012 (source)

The five plaintiffs were conscripted from Seoul and Gyeonggi-do in late 1944. The Japanese military and the police rounded them up on a train to Busan, from which they were taken to Hiroshima, Japan. There, they worked at Mitsubishi’s metallurgy factory while being captive in a concentration camp. Their slavery ended only after an atomic bomb fell in Hiroshima, from which they suffered lasting radiation injuries. 

The plaintiffs first sued Mitsubishi in Japan, and lost the first round in 1999. They appealed the loss, while also suing Mitsubishi in Korea in 2000. The Supreme Court of Japan dismissed the case in 2007, holding that Mitsubishi’s conscription of the plaintiffs was itself legal, because Korea at the time was the territory of the Imperial Japan, and the conscription was based on a lawful decree. Japan’s Supreme Court found that, nevertheless, certain aspects of the conscription may have been unlawful—for example, because the slave laborers were placed in unsafe conditions including irradiation from a nuclear attack. But the Japanese Supreme Court found the ’65 treaties precluded any claim from such unlawful aspects of the conscription.

Based on the dismissal, Mitsubishi argued to the Supreme Court of Korea to also dismiss the case, as international comity generally requires one country’s court to respect decisions by another country’s court in the same matter. The Korean Supreme Court rejected the argument. The court noted that the Japanese decision offends the Constitution of the Republic of Korea, which draws its legitimacy from the 1919 Provisional Government and declares Imperial Japan’s occupation of Korea to be illegal from the start. To give recognition to the Japanese decision that the conscription was legal, according to the court, would contravene the premise of the Korean constitution.

Korea’s Supreme Court also struck back against the Japanese Supreme Court’s opinion that the ’65 treaties settled the plaintiffs’ claims, by hitting every point of ambiguity left open in the ’65 treaties. Since the Basic Treaty never recognized that Imperial Japan’s annexation of Korea was illegal from the start, the Japanese government likewise never recognized that the conscription was made pursuant to a decree issued by the colonial government that had no authority to issue such an order. Also, the Japanese government has characterized the money paid pursuant to the Settlement Agreement as “economic assistance,” not an exchange for the settlement of any claim. Even if the Settlement Agreement contemplated the waiver of claims held by individuals such as the former wartime slaves, such waiver was only a waiver of diplomatic protection—the same exact logic that the Japanese government has consistently employed since the Horimoto case in 1956.

With the 2012 slave labor decision, the ’65 System came full circle. As intended, the System ensured the relationship between South Korea and Japan would grow. But such growth led the two countries to focus their gaze into the ’65 System’s hollow core: the fact that there was no resolution to the most important question in the relationship between Japan and South Korea. The system's survival depended on silencing the victims. So, it is unsurprising that this particular decision that empowered the victims of imperialism would serve as the detonator that would undo the ’65 System.

Got a question or comment for the Korean? Email away at askakorean@gmail.com.

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