Collection of cases about exercising the right for collective self-defense, part 3. Here is part 1 and part 2.
Current interpretation of article 9 of the Constitution, which prohibits “use of force” not only affects the right to exercise collective self-defense, but also limits participation of JSDF in the international activities. Striving for approval of change of Constitution interpretation that would include the right to exercise collective self-defense the government states in the collection of cases: “international community expects us to actively participate, but due to the current interpretation of Constitution we cannot fully contribute to international peace and stability.”
Case 6 Rush to protect
Case 7 Use of weapons while on a mission
Act on Cooperation in the U.N. Peace Keeping Operations (PKO) was created in 1992 and JSDF could participate in the PKO in Cambodia and the East Timor. Now JSDF are deployed in South Sudan. Government wants to actively participate in PKO.
“JSDF troops participate in PKO. In a remote region civilians participating in PKO (officials) are being attacked by an armed group. Or troops of another country are being attacked by an armed group and requested help from JSDF.”
In the collection of cases this case is called “rush to protect”. Presently JSDF will not be allowed by law to respond to such requests.
While executing “rush to protect” it will be necessary “to use weapons while carrying out one’s duties”. In the collection of cases the following case is brought up.
“JSDF troops participating in PKO are out for emergency transportation of a wounded non-governmental organization (NGO) official. However, an armed group is preventing this.”
In this case JSDF also will not be able to fight the armed group and will have to give up on the mission. Use of weapons is allowed only for the case of “legitimate self-defense”.
If a criminal organization directly attacks JSDF troops this would constitute “execution of police authority” and “legitimate self-defense”, so weapons can be used in this case. However, if the armed group interfering the operation is “a country or an organization that belongs to a country”, this would constitute “use of force” and thus prohibited by article 9. But it is difficult to determine if the armed group is “a country or an organization that belongs to a country” and PKO cooperation law standards on use of weapons do not state that the mission must be executed.
As a way out of such a situation the collection of cases mentions: “It is important to create such situation when ‘a country or an organization that belongs to a country’ will not be involved”.
Government official explains that “if we limit the cases to ones when the country where JSDF are to be deployed agrees to such deployment and “a country or an organization that belongs to a country” will not appear in vicinity, JSDF will not need to resort to use of weapons and restriction on ‘use of force’ will not be violated”.
Case 8 Rescue of Japanese nationals residing abroad
“Lives of Japanese nationals residing abroad are endangered by a terrorist organization. They ask for protection, but government of the country of residence has limited rescue capabilities. The country of residence communicated to Japan that it agrees for JSDF to execute rescue operation”.
This case supposes that the country where Japanese nationals are being exposed to terrorist threat agrees for JSDF to perform rescue operations. Government official comments it is because “an armed conflict is more likely to occur when we are trying to rescue our citizens”.
An example of such case may be an hostage-taking incident in Algeria in January last year when ten Japanese nationals have been killed. Standards on use of weapons by JSDF stipulate that after the rescue of Japanese nationals weapons can only be used in unforeseen situations of “legitimate self-defense” and “emergency evacuation”. At that time government gave up on deploying JSDF troops.
Lesson learned from the incident – the government revised Self-Defense Forces Act in November last year and made it possible for JSDF to transport Japanese nationals residing abroad by land. Also a new policy that removes restrictions on JSDF personnel to carry weapons during such transport operations was implemented. However the standards on use of weapons are still limited to legitimate self-defense situations and such.
In the collection of cases government argues: “Is it ok that we will not be able to protect lives of our citizens? Should we not allow JSDF to execute their mission and also allow use of weapons?”. Still Komeito was wary about easing the standards on use of weapons when Self-Defense Forces Act was amended after the hostage-taking incident.
Case 9 Assistance in counter-invasion measures
“In certain region local invasion took place. Following the decision of UN Security Council a multinational military coalition is organized. Our country deploys JSDF to support operations in parts that will not constitute ‘use of force’.”
This case falls within “collective security” when several countries form a coalition against aggressor country under UN resolution in order to reinstate sovereignty of a country suffering from invasion. Such “military coalition” was formed in 1991 during the Gulf War and in 2003 during Iraq War.
This case is about a potential emergency situation on the Korean peninsula.
In the collection of cases a rule “in parts that will not constitute ‘use of force'” is in place. JSDF is not to be fighting the aggressor country directly, but rather provide “logistic support” for the coalition.
According to Act Concerning the Measures for Peace and Safety of Japan in Situations in Areas Surrounding Japan, JSDF is allowed to provide water and provisions, perform transportation operations and execute medical assistance. However, transportation of troops, weapons and ammunition is ruled out as “being equal to the use of force”. In January this year there was a request from UN to the JSDF participating in PKO in South Sudan to transport military personnel and weapons. But our government has refused on the grounds that there is a probability that such action would “be equal to the use of force against another country” and thus contradict the accepted Constitution interpretation.
In the collection of cases it is mentioned that “there is limitation that we can only participate in support operations that will not constitute ‘use of force’. And it will be difficult for our country to efficiently act as a member of military coalition”. Thus it is stated that “we need to have clear criteria on what is considered to ‘be equal to the use of force'”.
It is expected that down the road the definition of logistic support will have to be reviewed to include expanding Japan’s activities to such areas as supplying weapons, ammunition, medical services to the countries engaged in military conflict.
it will have to be decided what the definition of logistic support is, and whether it includes supplying weapons, ammunition, medical services to the countries engaged in military conflict, and how Japan can expand its activities.
This series of publications have been prepared by Dr.Oda.