Hwang Geum Joo v. Japan

• Decision Date: 04 October 2001
• Docket Number: No. Civ.A. 00-02233(HHK).,Civ.A. 00-02233(HHK).
• Citation: 172 F.Supp.2d 52
• Parties: HWANG GEUM JOO, et al., Plaintiffs, v. JAPAN, Defendant.
• Court: U.S. District Court — District of Columbia

172 F.Supp.2d 52

HWANG GEUM JOO, et al., Plaintiffs, v. JAPAN, Defendant.

No. Civ.A. 00-02233(HHK).

United States District Court, District of Columbia.

October 4, 2001.

COPYRIGHT MATERIAL OMITTED

Michael David Hausfeld, Elizabeth Haines Cronise, Cohen, Millstein, Hausfeld & Toll, P.L.C., Washington, DC, Johnnie L. Cochran, Jr., New York City, for plaintiffs.

Craig Alan Hoover, Jonatha Lynwood Abram, Hogan & Hartson, L.L.Pl., Washington, DC, for Japan, defendant.

Amy Marie Allen, Hogan & Hartson, L.L.P., Washington, DC, for U.S., non-party.

MEMORANDUM OPINION

KENNEDY, District Judge.

This case is brought by fifteen foreign women, on behalf of themselves and others similarly situated, who allege that they were victims of sexual slavery and torture at the hands of the Japanese military before and during World War II. The fifteen named plaintiffs allege that this conduct occurred throughout Japanese-occupied Asia, including specifically in Japan, Korea China, the Philippines, Taiwan, Burma, Singapore, and the Dutch East Indies. Defendant Japan has moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).¹ Upon consideration of Japan's motion to dismiss, plaintiffs' opposition thereto, and the record of this case, the court concludes that Japan's motion must be granted.

I. BACKGROUND

In the years leading up to and during World War II the world witnessed some of the worst atrocities ever committed by mankind. Fascist regimes spread virtually unchecked throughout the globe perpetrating such evil that the phrase "crimes against humanity" is hardly an adequate description. The international community has spent much of the last half century attempting to come to terms with these events. Indeed, in the last decade alone many steps were taken to obtain compensation for the victims. Much of this attention, however, has focused exclusively on the conduct of the Nazi regime in Europe.

Although forgotten by many in the Western Hemisphere, Asia was certainly not immune from the perils of fascism during this era. This case focuses attention on the egregious conduct of Japan during its conquest of Asia — conduct that included sexual slavery and mass rape on an institutional scale. Plaintiffs allege that along with approximately 200,000 other women they were forced into sexual slavery by the Japanese Army between 1931 and 1945. These women, referred to as "comfort women," were recruited through forcible abductions, deception, and coercion. Once captured by the Japanese military they were taken to "comfort stations." "Comfort stations" were facilities seized or built by the military near the front lines specifically to house "comfort women." While at these facilities the women were repeatedly raped — often by as many as thirty or forty men a day — tortured, beaten, mutilated, and sometimes murdered. The women were denied proper medical attention, shelter, and nutrition. Many of the women endured this brutal treatment for years. Plaintiffs estimate that only 25% to 35% of the "comfort women" survived the war, and those who did suffered health effects, including damage to reproductive organs and sexually transmitted diseases.

Plaintiffs assert that this conduct "was a systematic and carefully planned system ordered and executed by the Japanese government." Compl. ¶ 50. The "comfort stations" were for use by the Japanese military, and were regulated by the Japanese Army. Soldiers were charged a fee for access. The price charged depended on the woman's nationality, and at least a portion of the revenue went to the military. A soldier's length of stay and time of visit were determined based upon his rank. The "comfort women" were treated as mere military supplies, and were even catalogued on supply lists under the heading of "ammunition."

The scope of this "premeditated master plan" to enslave and rape thousands of women was immense, and no doubt "required the deployment of the vast infrastructure and resources that were at the government's disposal, including soldiers and support personnel, weapons, all forms of land and sea transportation, and engineering and construction crews and material." Compl. ¶¶ 1, 56. In the decades after the war, however, Japan largely ignored and denied allegations concerning the "comfort women" system. Not until 1992 did the Japanese government officially acknowledge some involvement in the operation of "comfort stations." Since that time several officials have expressed their apologies for Japan's involvement, but the Japanese government has not taken full responsibility for its actions, and has not paid reparations to the "comfort women." Plaintiffs therefore filed this lawsuit seeking compensation for the inhumane treatment they experienced.

II. ANALYSIS

Because this suit is brought against Japan, jurisdiction is premised exclusively on the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et seq. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) ("We think that the text and structure of the FSIA demonstrate Congress' intention that the FSIA be the sole basis for obtaining jurisdiction over a foreign state in our courts."). In the FSIA Congress mandated presumptive immunity for foreign nations from lawsuits brought in the United States. However, the FSIA also provides several exceptions to this general grant of immunity. See 28 U.S.C. §§ 1605-1607. After the defendant has produced prima facie evidence supporting its entitlement to immunity, "the burden of going forward ... shift[s] to the plaintiff to produce evidence establishing that the foreign state is not entitled to immunity." H.R.Rep No. 94-1487, at 17, U.S.Code Cong. & Admin.News 1976, p. 6604 (1976). The defendant then has the ultimate burden of proving immunity. See, e.g., Transamerican S.S. Corp. v. Somali Democratic Republic, 767 F.2d 998, 1002 (D.C.Cir.1985). When "the defendant challenges only the legal sufficiency of the plaintiff's jurisdictional allegations, then the district court should take the plaintiff's factual allegations as true and determine whether they bring the case within any of the exceptions to immunity invoked by the plaintiff." Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C.Cir.2000).

The defendant in this case, Japan, is presumptively immune from suit under the FSIA because it is a foreign state. In their papers plaintiffs argue that two exceptions to the FSIA apply.² The complaint specifically alleges that Japan "waived its immunity as to the claims of the `Comfort Women' as described in 28 U.S.C. § 1605(a)(1)" and that "the planning, establishment and operation of a network of `comfort houses' is a commercial activity that is not subject to sovereign immunity pursuant to 28 U.S.C. § 1605(a)(2)." Compl. § 5. Before addressing these two exceptions, it is appropriate to discuss briefly the threshold issue of whether the FSIA applies to events — such as the ones that are the subject of plaintiffs' complaint — which occurred before 1952.

A. Retroactive Application of the FSIA

Until 1952 foreign sovereigns were granted immunity at the discretion of the executive branch. The State Department generally granted immunity to friendly foreign sovereigns in all actions brought in United States courts. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). In 1952, Jack B. Tate, then-Acting Legal Adviser, Department of State, wrote what is now known as the "Tate Letter" to Acting Attorney General Philip B. Perlman, stating that the State Department would adopt a restrictive theory of foreign sovereign immunity. Id. at 487 n. 9, 103 S.Ct. 1962. From that point forward immunity was granted only in suits involving a foreign sovereign's public acts.

In an effort to reduce the political and diplomatic pressure foreign governments often placed on the State Department to grant immunity, Congress sought to codify the standards and conditions for determining when sovereign immunity would be denied. In 1976, Congress enacted the FSIA "to free the Government from the case-by-case diplomatic pressures, to clarify the governing standards, and to `assur[e] litigants that ... decisions are made on purely legal grounds and under procedures that insure due process.'" Id. at 488, 103 S.Ct. 1962, (quoting H.R.Rep. No. 94-1487, at 7 (1976) reprinted in 1976 U.S.C.C.A.N. 6604). Because the FSIA codified standards in place as of 1952, it is generally accepted that the FSIA applies to all events occurring from 1952 to the present. The controversy lies in whether the FSIA can be applied to events that occurred before 1952.

The D.C. Circuit has never expressly addressed the issue of whether the FSIA applies to pre-1952 events. Although, in Princz v. Federal Republic of Germany, 26 F.3d 1166, 1170-71 (D.C.Cir.1994), the court did comment on the issue. Without deciding the question the court provided some significant observations. Focusing on Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994),³ it reasoned that the FSIA might be applied retroactively to pre-1952 events because doing so would not affect the foreign sovereign's substantive rights. The court stated in dicta that applying the FSIA to Germany's acts during World War II "would not alter Germany's liability under the applicable substantive law in force at the time, i.e. it would just remove the bar of sovereign immunity to the plaintiff's vindicating his rights under that law." Princz, 26 F.3d at 1171. This analysis tends to reflect the line of cases that have confronted the issue since the 1994 decision in Landgraf. See Altmann v. Republic of Austria, 142 F.Supp.2d 1187, 1198-1201 (C.D.Cal.2001) (holding that the FSIA applied to pre-1952 events); Haven v. Rzeczpospolita Polska (Republic of Poland), 68 F.Supp.2d 943 (N.D.Ill.1999) (adopting the reasoning in Princz...