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WASHINGTON — Fifteen Asian women who were victims of rape, torture and sexual slavery at the hands of Japanese soldiers during World War II have lost another round in their effort to hold the government of Japan legally responsible for their suffering. On June 27, a panel of the D.C. Circuit U.S. Court of Appeals unanimously agreed with a trial judge’s 2001 ruling that the 15 so-called comfort women cannot bring their class action in U.S. courts. The D.C. Circuit wrote that “much as we may feel for the plight” of the women — who are Chinese, Taiwanese, South Korean and Filipino nationals — “the courts of the United States simply are not authorized to hear their case.” The case was filed in 2000. Japan, represented by lawyers from D.C.’s Hogan & Hartson, had defended against the suit on several grounds, contending that the nation enjoys sovereign immunity and that the case raises “political questions” amenable to diplomatic or legislative solutions but not to lawsuits. The circuit, in an opinion written by Chief Judge Douglas Ginsburg and joined by Judges David Sentelle and David Tatel, did not examine all of Japan’s arguments and all of the comfort women’s responses. It dealt only with three fairly narrow issues. The court concluded that the U.S. government does not recognize a “commercial activity” exception to sovereign immunity for any acts committed before 1952. Thus, Japan, as a foreign country, is immune from suit for its activities before and during World War II. The court also decided that a 1951 treaty between the United States and Japan established that all disputes over Japan’s conduct during World War II must be resolved through diplomacy, not in the courts. Finally, the court held that Japan did not waive its immunity simply because it engaged in activities like sexual slavery that violate international law. In 2001, U.S. District Judge Henry Kennedy Jr. had also rejected the lawsuit, on somewhat different grounds. Kennedy examined whether the sexual torture to which the comfort women were subjected was actually a “commercial activity” that would permit Japan to be sued. He concluded, however, that unlike ordinary prostitution, it was an aspect of Japanese government policy and thus not commercial in nature. He also decided that the case presented a “political question” not suitable for the courts. Historians estimate that more than 200,000 women were forced into sexual slavery as comfort women by the Japanese and that as many as three-quarters of them did not survive the war. Former comfort women have also brought several cases in Japanese courts, but they have been dismissed as well. At the District Court, the State Department filed a brief in support of Japan, arguing that the 1951 peace treaty should apply and that Japan has sovereign immunity. The U.S. government’s position drew sharp criticism at the time from Asian-American activist groups. Michael Hausfeld of D.C.’s Cohen, Milstein, Hausfeld & Toll, an attorney for the comfort women, calls the decision “tragic” and says he will seek rehearing by the full D.C. Circuit. “Trafficking in women and children is a modern-day scourge,” Hausfeld says. “This opinion basically skirts the whole issue on a technicality.” In a statement, the Japanese government expressed its view that the court decision was correct, while noting that it has expressed “deep regret and apology” to the comfort women and has made contributions to a welfare fund for their support. Jonathan Groner is a reporter for Legal Times , a Recorder affiliate based in Washington, D.C.

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