By Khrystyna Dumych

Compensation for war damage is an essential process of conflict resolution. However, the compensation’s ultimate goal is to restore justice, not just to receive compensation in cash or other forms. The absence of a comprehensive approach to solving this problem can significantly complicate full compensation for individuals or groups of individuals.

A striking example of this situation is the compensation settlement for comfort women after the end of World War II.

Background

The problem of obtaining fair compensation for comfort women remains one of the most complex and controversial issues in relations between Japan and other countries after 1945.

In 1932, the Japanese government began creating a network of special comfort stations in the army which were supposed to provide for the domestic and sexual needs of the military. That network functioned until 1945, and according to various estimates, from 50 to 200 thousand women from Korea, China, the Philippines, Southeast Asia, and Europe passed through it.

 Although one of the unofficial reasons for creating that network was to prevent mass sexual crimes committed by the Japanese military, comfort women were forced into prostitution by Japanese soldiers, tortured, and abused. As a result, women suffered both physical harm to their health (many became infertile and went through venereal diseases) and mental distress: such women were often stigmatized in their societies and concealed those facts.

Interstate settlement

The issue of compensation to Korean citizens by Japan was raised in 1951 when the Korean government demanded $364 million to Koreans and their families who were forced to work and serve in the army during the war. Fifteen years of negotiations ended up in 1965 with the Mutual Claims Settlement Agreement which allegedly deprived South Korea and its citizens of the right to claim any compensation for damages caused during the war in exchange for economic aid and low-interest loans:

“The Contracting Parties confirm that the problems relating to the property, rights, and interests of both Contracting Parties and their nationals (including legal entities), those relating to claims between the Contracting Parties and their nationals, including those referred to in the... Peace Treaty signed in San Francisco on September 8, 1951, have been settled fully and finally.”

On the basis of this Agreement, Japan refused to recognize the right of those women to compensation. Subsequently, the Korean side denied that the Agreement excluded the individuals’ right to compensation for damages. Korean politicians and experts have emphasized the inadmissibility of the state’s waiver of claims on behalf of individuals. They also pointed out that the agreement did not contain provisions that would regulate compensation to individuals, and the purpose of the funds received as a result of its conclusion was to rebuild South Korea, not to compensate the conflict victims.

Consideration of individual claims

In December 1991, three Korean women, former comfort womenhttps://heinonline.org/HOL/LandingPage?handle=hein.journals/tclj15&div=12&id=&page=, filed a lawsuit in the Tokyo District Court demanding compensation from the Japanese government for damages caused to them during the war. Later, they were joined by many other Korean women who were also victims of those violations. In fact, it stirred up the public and political process of discussions on compensation for those women.

However, despite the fact that the Japanese government and parliament, including in the face of the Prime Minister Tomiichi Murayama, have apologized several times to the comfort women, Japan has avoided paying official compensation to those women in every way possible. For a long time, it was carried out through a specially created public private Asian Women Fund which was funded by private individuals in cooperation with the Japanese government.

Between 1994 and 2007, 61 former Korean comfort women received compensation of about $42,000 from the fund, and other 142 women received compensation from the South Korean government. Nevertheless, many former comfort women refused that compensation, calling it “unofficial.”  The situation was further exacerbated by the Japanese Prime Minister Shinzo Abe’s statement https://www.nytimes.com/2007/03/02/world/asia/02japan.html in 2007 that there was no evidence of sexual exploitation of comfort women, although he later apologized for that.

Formally, that issue was settled between South Korea and Japan in an agreement dated December 28, 2015. According to the agreement, Japan agreed to pay about $8.7 million to a fund to support the surviving comfort women. In return, South Korea agreed to refrain from publicly criticizing the issue in the future.

That decision caused a wave of outrage, and subsequently, a number of lawsuits were filed on behalf of women for comfort against the South Korean government because the government had annulled the victims’ right to claim compensation by concluding the 2015 Agreement and continuing to demand compensation from Japan. In 2018, the Seoul Central District Court rejected the claim against the Korean government, although it recognized that the Agreement “lacks transparency,” but in 2021, it ruled that the Japanese government should pay the plaintiffs compensation of about $91,300 each. The Japanese government refused to comply with the decision, citing the sovereign immunities of states, and further insisted that the matter was resolved and closed.

Why this case is important for Ukraine

The example of compensation for comfort women is important for Ukraine in the context of two main conclusions. In the first case, the obligations under multilateral and bilateral agreements should be treated with great care so as not to violate or nullify the victims’ right to compensation.

This refers to different groups of victims: both victims of violence during the conflict and those who suffered other moral or material losses. In this regard, a very careful approach should be taken to assessing the damage and collecting facts and evidence, as well as systematizing them, to exclude the possibility of disregarding the interests of certain victims or concealing the facts of crimes.

And most importantly, in all circumstances, we should strive to achieve full and fair compensation which will include both material (payment of financial compensation or restitution) and moral (formal apology and acknowledgement of the breach) components or create conditions for achieving this. Without this, the wounds inflicted by the conflict on society and victims of crimes will continue to bleed for a long time and cause public debate at the national and international level.

The publication was prepared with the support of the International Renaissance Foundation as the part of the project "#Compensation4UA/Compensation for war losses for Ukraine. Phase II: ensuring the effectiveness of mechanisms at the national and international level" project.