Constitutional Court: "No Government Obligation to Act on Korean War Criminal Dispute Resolution"… Constitutional Complaint 5 (Dismissed): 4 (Unconstitutional) Dismissed

Constitutional Court Grand Bench, Jongno-gu, Seoul. / Photo by Mun Ho-nam munonam@

[Asia Economy Choi Seok-jin, Legal Affairs Specialist Reporter] The Constitutional Court has ruled that the government has no specific affirmative duty to resolve disputes regarding the compensation claims held by Korean victims who were mobilized as Japanese soldiers during the Japanese colonial period and later punished as war criminals.

On the 31st, the Constitutional Court dismissed a constitutional complaint filed by members and bereaved families of Dongjinhoe, an association of surviving Korean war criminals, against the Minister of Foreign Affairs. They claimed that the Korean government neglected the issue of war criminals from its own country, thereby infringing on their fundamental rights. The decision was made with five justices voting for dismissal and four dissenting votes declaring unconstitutionality.

The petitioners who filed this constitutional complaint were victims or their families who were forcibly mobilized as prisoner-of-war guards during the Pacific War under Japanese colonial rule. They worked at POW camps located in various Southeast Asian countries and were punished as Class B and C war criminals in international war crime trials conducted by the Allied powers such as the United Kingdom, the Netherlands, and Australia after the war ended.

In October 2014, the petitioners filed the constitutional complaint, arguing that under the "Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Cooperation between the Republic of Korea and Japan" signed in 1965, there exists an interpretative dispute between the Korean and Japanese governments regarding whether their compensation claims against Japan have been extinguished. Therefore, they claimed that the government has an affirmative duty to take measures to resolve this dispute. However, the government did not take dispute resolution measures according to Article 3 of the agreement, and the petitioners requested the Constitutional Court to confirm that this inaction infringed on their fundamental rights such as human dignity, the pursuit of happiness, and property rights, thus being unconstitutional.

The Constitutional Court divided the damages claimed by the petitioners into two categories: ▲ damages suffered by Korean Class B and C war criminals due to punishment from international war crime trials, and ▲ damages caused by Japan’s inhumane and illegal acts during forced mobilization under Japanese colonial rule. The Court then examined whether the government has a specific affirmative duty and whether the failure to fulfill such duty infringed on the petitioners’ fundamental rights.

First, Chief Justice Yoo Nam-seok and Justices Lee Seon-ae, Lee Young-jin, and Moon Hyung-bae, totaling four justices, ruled that regarding damages from punishment by international war crime trials, the principle of respecting international law requires respecting the international legal status and rulings of the international war crime tribunals. Therefore, it is difficult to consider this issue as subject to the agreement between Korea and Japan, and it is hard to see that the government has an obligation to proceed with dispute resolution procedures under Article 3 of the agreement concerning damages suffered by victims.

However, these justices acknowledged that "it is a regrettable historical fact that Korean Class B and C war criminals during the Japanese colonial period were forcibly mobilized as prisoner-of-war guards by Japan, monitored Allied prisoners of war under Japanese military orders, and were punished without proper assistance at the international war crime tribunals."

Nonetheless, the justices stated, "it is difficult to regard the compensation claims of Korean Class B and C war criminals arising from punishment by international war crime tribunal rulings as belonging to the same category as the compensation claims of Japanese military comfort women or atomic bomb victims for Japan’s inhumane and illegal acts. Therefore, it is difficult to recognize a specific affirmative duty on the government, and the petition regarding this part is inadmissible."

Meanwhile, regarding damages caused by forced mobilization under Japanese colonial rule, the justices noted that the Dongjinhoe organization had previously demanded compensation from the Japanese government at the international war crime tribunals and received partial compensation. The Korean government has continuously urged Japan to resolve the issue legislatively, maintaining that it is a problem Japan should take primary responsibility for, independent of the agreement. Therefore, the justices judged that it is unclear whether a dispute realistically exists between Korea and Japan on this matter. Since the dispute between the two countries is still immature, the government has no affirmative duty to proceed with dispute resolution procedures under Article 3 of the agreement.

In addition to the immaturity of the dispute, the justices judged that since the Ministry of Foreign Affairs has continuously demanded comprehensive resolution and compensation regarding the Korean Class B and C war criminals’ issue through diplomatic channels, it is difficult to consider that the government failed to fulfill its affirmative duty.

On the other hand, Justice Lee Jong-seok dissented, presenting different reasoning from the Constitutional Court’s majority opinion.

Justice Lee judged that "no affirmative duty can be derived from Article 10, Paragraph 2 of the Constitution or the preamble of the Constitution that the government owes to the petitioners, nor can such duty to proceed with dispute resolution procedures for the petitioners be derived from the agreement in question."

Justices Lee Seok-tae, Lee Eun-ae, Kim Ki-young, and Lee Mi-seon agreed with the majority opinion (dismissal) regarding damages from punishment by international war crime trials.

However, these four justices dissented regarding damages caused by forced mobilization under Japanese colonial rule, recognizing the government’s affirmative duty and its failure to fulfill it. They stated, "We confirm that the government’s inaction in not proceeding with dispute resolution procedures under Article 3 of the agreement infringes on the petitioners’ fundamental rights and is unconstitutional."

The four dissenting justices stated, "Korean Class B and C war criminals during the Japanese colonial period were forcibly mobilized as prisoner-of-war guards at a young age, in their late teens to twenties, by inhumane and illegal methods under Japanese military coercion. They obeyed the coercive and violent orders of Japanese military superiors while performing duties to monitor and control Allied prisoners of war, suffering significant mental and physical damages."

They continued, "These individuals have been recognized as 'victims or sufferers of forced mobilization' by the Truth Commission established under the Truth and Reconciliation Act, acknowledging the damages caused by Japan’s inhumane and illegal acts. Therefore, Korean Class B and C war criminals hold claims against Japan for damages caused by illegal forced mobilization, and these claims are essentially no different in nature from those of Japanese military comfort women and forced mobilization victims who suffered from Japan’s inhumane illegal acts during the colonial period."

The justices also judged, "Regarding whether the claims of Korean Class B and C war criminals for damages caused by forced mobilization have been extinguished by the agreement, there exists an interpretative dispute between Korea and Japan. Considering Article 10 of the Korean Constitution, its preamble, and the wording of Article 3 of the agreement, the government has a specific affirmative duty to proceed with dispute resolution procedures under Article 3 of the agreement."

The justices concluded, "considering the seriousness of fundamental rights, the urgency of remedying fundamental rights violations, the possibility of remedy, and whether it truly contradicts national interests, the government’s inaction in not proceeding with dispute resolution procedures despite the interpretative dispute between Korea and Japan regarding the claims of Korean Class B and C war criminals for damages caused by Japan’s illegal forced mobilization constitutes a serious infringement of the petitioners’ fundamental rights and is unconstitutional."

For a constitutional complaint to be accepted, at least six justices must agree. Although four justices opined that the government’s inaction infringed on the fundamental rights of war crime victims regarding damages caused by forced mobilization, the number did not reach the required six. Therefore, the Constitutional Court’s final opinion on this case was dismissal.

This content was produced with the assistance of AI translation services.