By Sandip Kumar Mishra
In 1924, a British court gave a very famous axiom of jurisprudence. It said, "Not only must justice be done, but it also must be seen to be done." While keeping the essence of the axiom intact, let's paraphrase it: "Justice must not only be seen to be done, but it must be done."
However, if one narrowly focuses on "justice must be seen to be done" and does not give much consideration for the actual realization of justice, the approach does not serve its purpose.
South Korean courts, both local as well as the Supreme Court, must introspect on whether their judgments on the issue of wartime forced labor by Japanese companies do not fall into the last category. From 2018, there have been several cases and several verdicts in South Korean courts on the issue. In October 2018, the Supreme Court of Korea upheld lower courts' orders in which Japanese companies were asked to pay 100 million won ($85,000) to each of the plaintiffs as reparation.
However, in June, August and September 2021, the Seoul District Court dismissed compensation appeals of the descendants of the wartime forced labor victims. In the most recent verdict on Sept. 8, the court rejected a lawsuit filed by four children of the late victim, surnamed Jeong, against Nippon Steel Corp.
Without being overly emotional about the issue, it must be evaluated whether these judgments have contributed to serving justice to the victims. There is no denial of the fact that the several Koreans suffered immensely because of the wartime forced labor. However, there are many vexing questions which should be considered before taking up and adjudicating this issue.
First and foremost, it must be ascertained whether these Japanese companies acted as per their own free will, or did the Japanese state direct them to do so? If the Japanese state dictated or influenced the decisions of these companies, the state must be made liable for it.
Second, is it not reasonable that the economic reparation provided by Japan to Korea through the Normalization Treaty of 1965 was basically indirect compensation by Japan to these Korean victims and many more? Someone may ask that if individual Korean victims are entitled to sue Japanese companies separately, then what were the specific reasons for the Japanese compensation to Korea?
Third, most of the Korean litigants are second or third generation descendants of the Korean victims who suffered because of the forced-labor. Is it possible to redeem those atrocities by paying compensation to these descendants? Would there not be a time limitation of demanding compensation for the wrong doings of the past? This is important, because history is full of many such atrocities and trying to seek compensation for all of them may, rather than provide justice, bring more animosity.
Fourth, is it easy to get compensation from the Japanese companies given that they are foreign companies in Korea? Also it must be realized that there are various international bodies related to global trade who would definitely come into the picture and make the actualization of the compensation at least complex, if not impossible.
Fifth, if Japanese companies are forced to pay compensation, how is it going to be read by other Japanese companies in Korea? If other Japanese companies decide to curtail their business in Korea because of the lessons they learned from the compensation issue, it would have a negative impact on the Korean economy. It would also mean that many more Korean people are going to suffer in the process.
Sixth, can we be sure that these court verdicts are not going to have impacts on t bilateral relations between Korea and Japan? When China's assertions in the region have grown, North Korean nuclear and missile programs pose existential threats to both Korea and Japan, the US commitment to Korea and Japan is doubtful and several historical and territorial issues between Korea and Japan are already posing serious questions to both Korea and Japan, is it appropriate to raise such a vexatious issue which may further strain bilateral relations?
Actually, without comprehending and answering these questions, it would not be constructive for the courts in Korea to give their verdicts on the forced-labor issue. The point is not that the atrocities were not committed. But it only means that in the process of the delivery of justice, these points must be taken into account.
If it does not happen, justice may appear to be done, but the realization of justice may remain elusive. Apparently, the South Korean state is aware of these complexities and has been trying to tread constructively without hurting Korean popular sentiment or the judiciary. It is high time for Korean courts to also keep in mind the bigger picture.
The author (sandipmishra10@gmail.com) is associate professor at Jawaharlal Nehru University, New Delhi, India.
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However, if one narrowly focuses on "justice must be seen to be done" and does not give much consideration for the actual realization of justice, the approach does not serve its purpose.
South Korean courts, both local as well as the Supreme Court, must introspect on whether their judgments on the issue of wartime forced labor by Japanese companies do not fall into the last category. From 2018, there have been several cases and several verdicts in South Korean courts on the issue. In October 2018, the Supreme Court of Korea upheld lower courts' orders in which Japanese companies were asked to pay 100 million won ($85,000) to each of the plaintiffs as reparation.
However, in June, August and September 2021, the Seoul District Court dismissed compensation appeals of the descendants of the wartime forced labor victims. In the most recent verdict on Sept. 8, the court rejected a lawsuit filed by four children of the late victim, surnamed Jeong, against Nippon Steel Corp.
Without being overly emotional about the issue, it must be evaluated whether these judgments have contributed to serving justice to the victims. There is no denial of the fact that the several Koreans suffered immensely because of the wartime forced labor. However, there are many vexing questions which should be considered before taking up and adjudicating this issue.
First and foremost, it must be ascertained whether these Japanese companies acted as per their own free will, or did the Japanese state direct them to do so? If the Japanese state dictated or influenced the decisions of these companies, the state must be made liable for it.
Second, is it not reasonable that the economic reparation provided by Japan to Korea through the Normalization Treaty of 1965 was basically indirect compensation by Japan to these Korean victims and many more? Someone may ask that if individual Korean victims are entitled to sue Japanese companies separately, then what were the specific reasons for the Japanese compensation to Korea?
Third, most of the Korean litigants are second or third generation descendants of the Korean victims who suffered because of the forced-labor. Is it possible to redeem those atrocities by paying compensation to these descendants? Would there not be a time limitation of demanding compensation for the wrong doings of the past? This is important, because history is full of many such atrocities and trying to seek compensation for all of them may, rather than provide justice, bring more animosity.
Fourth, is it easy to get compensation from the Japanese companies given that they are foreign companies in Korea? Also it must be realized that there are various international bodies related to global trade who would definitely come into the picture and make the actualization of the compensation at least complex, if not impossible.
Fifth, if Japanese companies are forced to pay compensation, how is it going to be read by other Japanese companies in Korea? If other Japanese companies decide to curtail their business in Korea because of the lessons they learned from the compensation issue, it would have a negative impact on the Korean economy. It would also mean that many more Korean people are going to suffer in the process.
Sixth, can we be sure that these court verdicts are not going to have impacts on t bilateral relations between Korea and Japan? When China's assertions in the region have grown, North Korean nuclear and missile programs pose existential threats to both Korea and Japan, the US commitment to Korea and Japan is doubtful and several historical and territorial issues between Korea and Japan are already posing serious questions to both Korea and Japan, is it appropriate to raise such a vexatious issue which may further strain bilateral relations?
Actually, without comprehending and answering these questions, it would not be constructive for the courts in Korea to give their verdicts on the forced-labor issue. The point is not that the atrocities were not committed. But it only means that in the process of the delivery of justice, these points must be taken into account.
If it does not happen, justice may appear to be done, but the realization of justice may remain elusive. Apparently, the South Korean state is aware of these complexities and has been trying to tread constructively without hurting Korean popular sentiment or the judiciary. It is high time for Korean courts to also keep in mind the bigger picture.
The author (sandipmishra10@gmail.com) is associate professor at Jawaharlal Nehru University, New Delhi, India.
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