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
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
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
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
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 ...