UC Irvine Journal of International, Transnational, and Comparative Law


Kyung Sin Park


The redress and reparation efforts for the “comfort women” of the Japanese military during the Pacific War have been hampered in their home countries by the state immunity doctrine. In this article, we first evaluate the current state of jurisprudence on state immunity doctrine, especially as expressed in the seminal 2012 ICJ decision in Ferrini. We find there that the concept of “armed forces” has been commandeered to bolster the strict application of state immunity and evaluate such usage of the categories such as “armed conflicts” and “armed forces.” We note that full legal analysis under the state immunity doctrine, namely, that of the putative exception of “territorial torts,” was cut short by the court upon their findings on the elements of “armed conflicts” and “armed forces.” For subject matter relevance, the less well-known 2007 Hwang Geum Joo decision of a US court that applied similar reasoning to the “comfort women” in interpreting the American codification of the state immunity doctrine, is also evaluated against the pre-existing U.S. jurisprudence on “commercial activities.” We find that the Ferrini decision and the current jurisprudence of customary international law as informed by the relevant American precedent carefully circumscribes itself and thereby leaves intact the potential availability of two actus jure gestionis exceptions to state immunity—"private civil or commercial act”—for the “comfort women”: “territorial torts” and “commercial activity.”

The Japanese military, as the end-customer of “comfort services,” solicited, procured, and paid for ‘comfort services’ to reduce the cost of the war. These private legal acts incentivized the private contractors into recruiting Korean women, already impoverished under colonial racism, by deceit, and into treating the Korean women thus recruited harshly and inhumanely during the “comfort services.” Throughout the relevant periods, despite the Japanese military’s acts of “armed forces during an armed conflict” or any other sovereign act or governing act with respect to “comfort women,” it is undeniable that it set the specifications of the services to be delivered, exercising its prerogative as the end-customer and primary contractor. It is in this role as a joint tortfeasor in the “territorial tort” of fraudulent human trafficking and as a purchaser in the “commercial activity” of purchasing “comfort services” that the modern Japanese government should be held accountable in a Korean court of law in line with the exceptions to state immunity doctrine.