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Ambivalent Identity: Incorporated but Unequal - A Postcolonial Review of the ‘Japanese Comfort Women’ Problem with the Korean Court Judgments regarding State Immunity

Published online by Cambridge University Press:  28 April 2025

Seonwha Kim Open the ORCID record for Seonwha Kim [Opens in a new window]
Seonwha Kim*
Affiliation:
Seoul National University, Gwanak-gu, Korea and Seoul Family Court, Seoul, South Korea
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Email: [email protected]
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Abstract

Recent controversy around comfort women litigation in Korea illustrates the perplexity of dealing with colonial issues within the framework of international law. A number of victims filed two lawsuits against Japan, requesting compensation for the damages caused in the comfort station. In both lawsuits, the key issue was whether the court should dismiss the case on the grounds of state immunity. Surprisingly, the two courts reached opposite conclusions. The first judgment rejected Japan’s claim of state immunity and announced that the Korean court still holds jurisdiction over the case, while the second judgment dismissed the case by reason of customary international law. Although contrary in conclusion, the rationale of both judgments reflects theoretical confusion about applying the principle of state immunity to an incident that happened between a state and its colony. In neither lawsuits was there an issue of how to represent the damages induced by colonial mobilization. Instead, all the litigants focused on the issue of state immunity. However, since the principle of state immunity is a norm applied between equivalent sovereign states, it does not easily apply to the problems arising from colonial relations. Korea was annexed to Japan as an “incorporated but unequal” part. While the issue was the systematic rape committed against the women in the colony, the identity of Korean comfort women was ambivalent - they were not combatants of the enemy state, but were practically seen as a constituent member of the Japanese military.

In this article, I will analyze the discourse in the lawsuits that reveal the deficiency of jurisprudence in Korea regarding how to address the issue of coloniality. By comparing the two decisions that are opposite and yet similar, I explore how the formalist discussion regarding state immunity veiled substantive issues relevant to the court. Finally, I suggest the possibility of an alternative framework for how the law might accept and address the ambivalent colonial identities of victims, drawing on the International Criminal Court’s Ntaganda case.

Keywords

State immunityComfort women lawsuitsColonial tortSystematic rapeNtaganda Case
Type
Research Article
Information
Asian Journal of Law and Society , Volume 12 , Special Issue 1: Separate and Unequal in Unsettling Territories of Asia and Beyond , March 2025 , pp. 12 - 21
Copyright
© The Author(s), 2025. Published by Cambridge University Press on behalf of Asian Journal of Law and Society

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References

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