South Korean Supreme Court upends 1965 bilateral treaty, reasserts settled claims
Mark Ramseyer, Mitsubishi Professor of Japanese Legal Studies at Harvard Law School, is one of the world’s foremost authorities on Japanese law. He is also a keen observer of East Asian affairs.
JAPAN Forward’s Jason Morgan recently sat down with Professor Ramseyer to sound him out on regional developments in the realm of law and policy in Northeast Asia.
Below are excerpts from the interview.
Let’s start with the courts in South Korea. Do their recent rulings against Japanese firms square with historical facts? What’s the backstory to these judicial proceedings?
I can’t figure out what’s going on in Korean courts. Mind you, I don’t speak or read Korean. But take the Korean judgment against Mitsubishi Heavy Industries (MHI). I haven’t looked at any of the documents, but I thought the Korean government waived all these claims decades ago as part of its treaty with Japan.
What of the argument that firms that supported the war should be held accountable regardless of treaties entered into by nation-states?
What people often don’t appreciate outside of Japan is the fact that lots of the executives of the big firms didn’t support the war effort. They were sensible business men. They could see that fighting the U.S. was not likely good for business. Let’s be honest.
This isn’t rocket science. Militarists shot Takuma Dan — the Mitsui CEO — for being too pacifist, and they had several other business executives on their hit list.
So, things were not as simple as they might appear?
The military — once it took over the government — needed the firms to produce things like planes and tanks and guns. To induce the firms to cooperate, they promised compensation.
When the war ended in 1945, most of these large firms were insolvent, except for that promised compensation. The executives had been right all along — fighting the U.S. was not a money-making venture.
MacArthur wasn’t about to pay the compensation that the military had promised these firms, so SCAP (Supreme Commander for the Allied Forces) instead masterminded a special one-time bankruptcy procedure. The firms would give up their claims against the government, and the courts would wipe out all pre-bankruptcy claims.
The Americans were involved in rehabilitating the Japanese companies that produced weapons and materiel for the war?
Yes. A very large percentage of the big firms went through this procedure. I haven’t checked MHI, but I’ll bet it did too. If so, then the firm is simply not liable for any of these claims — and it’s because of a bankruptcy statute that SCAP forced on Japan.
Many in Japan and elsewhere are wondering how courts can consider claims from so long ago. Are there and statutes of limitations that apply here?
Yes. This isn’t the “technicality” that some people call it. It goes to the heart of what real-world courts can and can’t do. Seventy-plus years after the event, someone comes and claims MHI owed him money. He says he was forced to work at its factory, and wasn’t paid.
Did he work at MHI? Was he forced? Was he paid? How would MHI know? They don’t have any records. Most of its factory managers are long dead. Most of its workers are long dead. It’s impossible — completely impossible — for MHI to tell whether he worked there or didn’t, if he did work there, whether he worked voluntarily or was forced, and whether he had unpaid compensation due him.
But come on. The men who worked in Japanese factories are hardly the ones we should feel most sorry for.
Wars are bad news, and they’re especially bad news when you’re losing. The plaintiffs claim they were forced to work in MHI factories. There was a draft going on, and the Americans were massacring the Japanese military.
So, working in a wartime factory may have spared the lives of the plaintiffs?
The ones sent to MHI were lucky. Young Japanese men (and some young Korean men) were sent to front in the Burmese jungle.
Beyond the wartime factory claims, South Korea has been aggressively pressing Japan on the “comfort women” issue. What do you make of this?
The whole “comfort women” business indicates a troubling trend.
A Korean history professor, Park Yuha, interviewed as many of the women as she could. Some of them told her they had taken the job for the money. Some of them said their parents had sold them into the job.
The professor wrote a book about it, and prosecutors called it a crime. As I understand it, the district court acquitted her, but the appellate court reversed the acquittal. The court convicted her for writing a book detailing what the women told her.
It sounds as though the South Korean courts are attacking free speech at home while putting pressure on Japan.
Another professor last fall mentioned in class that some of the comfort women had known what they were getting into when they signed up. Prosecutors called this a crime too, and the court sentenced him to six months in prison.
I don’t get it. What’s gotten into the Korean judiciary?
Interviewer: Jason Morgan for JAPAN Forward
Quite simply, fervid nationalist politics now supersedes any law or basic diplomatic guidelines observed in the international community. Neither logic nor reason matters anymore, and this will inevitably lead to tragedy and chaos.