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October 4, 2001


The opinion of the court was delivered by: 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).*fn1 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.


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."


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 plaintiffs jurisdictional allegations, then the district court should take the plaintiffs 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).

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),*fn3 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 plaintiffs 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, 11981201 (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 and concluding that the FSIA applied to pre-1952 events).

Although the only two circuits that expressly addressed this issue held that the FSIA did not apply to pre-1952 events, see Carl Marks & Co., Inc. v. Union of Soviet Socialist Republics, 841 F.2d 26, 27 (2d Cir. 1988); Jackson v. People's Republic of China, 794 F.2d 1490, 1497-98 (11th Cir. 1986), both of these cases were decided prior to Landgraf and Princz. Additionally, at least two district court judges in this circuit have also decided the issue, and both found that the FSIA did not apply to pre-1952 events. See Lin v. Government of Japan, C.A. No. 92-2574, 1994 WL 193948, at *2 (D.C. May 6, 1994) (Hens-Green, J.); Djordjevich v. Federal Republic of Germany, 827 F. Supp. 814 (D.C. 1993) (Hens-Green, J.), aff'd on other grounds, 1997 WL 530499, 124 F.3d 1309 (D.C.Cir. 1997); Slade v. United States of Mexico, 617 F. Supp. 351, 355 (D.C. 1985) (Greene, J.), aff'd without opinion, 790 F.2d 163 (D.C.Cir. 1986). Again, however, these cases were decided prior to Princz.

As was the case in Princz, this court need not "decide whether the FSIA applies to pre-1952 events, however, in order to resolve this case." Princz, 26 F.3d at 1171; see also Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1149 n. 3 (7th Cir. 2001) ("We need not decide whether the pre-1952 law or the less stringent theory of sovereign immunity codified in the FSIA applies because, . . . Sampson's suit against Germany is barred even under the lower standards of the FSIA."). Assuming that the FSIA does govern plaintiffs' claims, none of its exceptions apply. On the other hand the if FSIA does not apply, and if Japan is not entitled to sovereign immunity under pre-1952 law, plaintiffs' claims must still be dismissed because they are nonjusticiable.

B. Exceptions to the FSIA

Based upon the waiver and commercial activity exceptions plaintiffs advance three arguments in support of Japan's amenability to suit. First, plaintiffs claim that Japan explicitly waived immunity in the Potsdam Declaration signed after World War II. Second, plaintiffs argue that the acts in question constitute a violation of the jus cogens norms of the law of nations, and as such immunity was implicitly waived. And third, plaintiffs assert that the acts were in connection with commercial activities outside the United States that had a direct effect inside the United States. Because at this stage of the litigation Japan only challenges the legal sufficiency of plaintiffs' allegations, the court will assume the allegations in the complaint are true in order to determine if these FSIA exceptions apply. See Phoenix Consulting, 216 F.3d at 40.

Section 1605(a) of the FSIA provides, inter alia, that

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case —
(1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect ...

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