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Special Report II
Last Updated: 02/10/2009
Is the overseas deployment of Japan’s Self-Defense Force (SDF) illegal? Rethinking the Japanese contribution to international peace and security
Noriko Hashimoto

Noriko Hashimoto discusses the legal and political arguments around the deployment of Japan's self defense forces (SDF) for overseas missions, going beyond the constitutional debate to question the broader concept of national contributions to international society.


The overseas deployment of Japan's Self-Defense Force (SDF) is illegal, which was the court decision on April 17th 2008. The Supreme Court of Nagoya, Japan ruled that to deploy the Japan Self-Defense Forces (SDF) to Iraq is against article 9, chapter 1 of the Japanese Constitution, which was the first time the court made such a judgment since the formulation of the constitution (Yomiuri online and Stop Iraq War, 2008). There is a long-standing argument over revision of the Japanese Constitution, at least as old as the constitution itself. Recent historical events, for instance the Gulf War and the Iraq war, became a trigger of this series of arguments, and have characterized the policies of each major political party in Japan. However, this argument goes far beyond a political disagreement between political parties; it poses a larger question of international cooperation toward peace. It was thought that militarily cooperation was not necessary for international cooperation, that there are alternative ways to cooperate among nations and contribute to international peace.

This paper reviews the argument for dispatching the SDF to Iraq in the context of the Japanese constitution, and beyond that, examines the whole concept of international cooperation through dispatching SDF in the future. Therefore, it will respond to the new concept of international cooperation in reference to representative arguments over SDF.

Background- situation surrounding the article 9 of Japanese Constitution-

The Constitution of Japan went into effect after World War II in 1946, and immediately, arguments over article 9 and the role of the SDF had already started. Article 9 of the Japanese constitution is composed of 2 paragraphs: the first paragraph states a renunciation of war, while the second paragraph renounces the maintenance of armed forces and the right of state belligerency.

Article 9: The Constitution of Japan, 1946

1.   Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.

2.   In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

Although 148 countries have constitutions that support pacifism in some sense (Nishi, 2006), the Japanese constitution being one of them, what makes article 9 special is that it denies the maintenance of any armed force in paragraph 2. Very few states have such a strongly worded and explicit renouncement of war. Even though the constitution prohibits the possession of the military force, however, the Japanese SDF was created, with a full Army-Navy-Air Force, in 1954, due primarily to international politics. 

Arguments over Article 9 became favorable topics of political argument. This argument among political parties has been continuing since 1948. But one of big turning point was that in 2005, Liberal Democratic Party (LDP) -- the biggest political party in Japan—submitted a draft amendment of the Japanese constitution. The draft poses an argument for the necessity of revision of the Japanese constitution, especially article 9, because Japan dispatched troops to Iraq. The draft advocated establishing SDF as an official force. And soon after, the biggest opponent party, the Democratic Party of Japan (DPJ), presented basically the same suggestion for revising the constitution. It seems so strange that their opinion is almost the same, even though both parties had been fighting furiously against each other to gain political power. Both parties argued that the SDF should be given its legality, as long as SDF exists, and wanted to legitimize the fact that the government had dispatched them.

On the other hand, minority political parties, especially the Japanese Communist Party (JCP) and Social Democratic Party (SDP), are consistently against amending the Constitution.[1]  But so far, they are not much involved to this argument. Many people do not trust them totally and have certain negative images of both parties based on the history of the student movement in the 1970's and 1980's. Article 9 and its argument are also attached to these images, even if we have to discuss carefully, and the political position of JCP and SDP, anti-revision, has not been mainstream.

But the mainstream cannot be taken for granted, and peoples' images and ideas about article 9 are in the process of change. Civil society is responding to this argument through social movement. Although little by little, discussion is being open to people. The success of Global Article 9 Conference to Abolish War is fresh in our memory. [2]It could mobilize 10,000 people (Global Article 9 Conference to Abolish War, ABC News, 2008). It is than any previous in history of constitution. 

Argument

It is a simplification to classify the argument as "pro-revision vs. anti-revision". In fact, these arguments are complex in terms of political positions. According to Isezaki's classification of positions to this argument, 6 types of arguments can be seen. The main political stances toward the constitution are revisionist, safe-guardian, and those who argue for some kind of middle position, but these three stances contain different opinions as well.

Although these arguments should not be simplified, in this chapter, the opinions of pro-dispatching SDF and anti-dispatching SDF to Iraq will be focused on, in light of internal political and legal aspects, as well as international relations.

The pro-dispatching SDF argument

According to a survey that was done by Asahi Shinbun, 31% of valid responses agreed to send the SDF to Iraq. This position is generally supported by the argument of international cooperation (Asahi Shinbun, 2003). Former Prim Minister Koizumi justified the decision to send the SDF to Iraq with the following 3 points: To send SDF to Iraq is to help Iraq people and support international cooperation; the SDF would be offering humanitarian assistance and would not be using force; it is important for Japan's international relations with the U.S.

In the context of international relations, there is a representative argument that Japan is member of the UN, and that to dispatch the SDF is part of our responsibility as a member of international society, and as a major economic power. In addition, Japan can afford to have its own military force and dispatch them to UN mission upon the request. But there is a question to the argument that the constitution must be adjusted to the reality that the Japanese government has possessed the SDF for more than 50 years: why not adjust the government to the constitution? 

The anti-dispatching SDF argument

The opinions of pro-constitution elements, against SDF deployment, are mainly rooted in legal arguments. As a counter argument to the pro-SDF, Asashi shinbun reported that people disagree with putting Japanese soldiers at risk, since Iraq is not safe. Of course, there is also the constitution, chapter 2 of article 9 of which prohibits the possessing of any armed force. The constitution clearly states, in its opening words, that the government should not lead Japan to war, since wars cause tremendous sufferings to many people of the world, including one's own people. As mentioned above, The Supreme Court of Nagoya ruled that the Japanese government's decision to dispatch the SDF to Iraq was unconstitutional, based on chapter 1 of article 9. The government argued that the SDF were participates in logistics, and that they had not sent the SDF to "war", but as long as their logistical work is part of a military operation, the mission that SDF was dispatched must be considered a military operation. In fact, this court decision is legally nonbinding but it had a significant impact on the public.[3]

In the context of international relations, there is no international legislature; rather, there is an idea that UN is just a group of sovereign states. Japan never gave up its sovereignty and gave it to UN. Therefore, to send troops into another country is still a state responsibility, and under the name of Japan.  States have a responsibility to make such decisions carefully, and with the best interests of their people in mind.

International cooperation and dispatching SDF

Arguments such as those mentioned above tend to heat up when international society faces some crisis. For instance, in 1991, during the Gulf War, the U.S.-led multinational force asked the Japanese Government for support. But Japan could not send its troops because it was obviously military operation, which meant a violation of the Japanese constitution. The Japanese government decided to offer 13 billion-dollars instead of sending SDF. After the war, Japan was accused by the United States and others of not doing enough to help the war effort, only sending money and not dispatching its own troops. Some academia pointed out that Japanese government was traumatized by this criticism; Japanese diplomacy was criticized as diplomacy "in check". The image of Japanese diplomacy was that it would rather pay money than give any real sacrifice for international society (Uesugi, 2008c p9). This set the tone for dispatching SDF to other countries as an obligation of international cooperation, and the next time the same question came around. In 1992, after the Gulf War, the International Peace Cooperation Law was implemented, which began a new chapter in the history of international cooperation in Japan. This law became the legal base when Japan passed a resolution to send the SDF to Iraq.

These events call attention to the fact that some very important points have been left behind. The legal argument is still a big issue to be discussed, but we have to look beyond it, and examine how the Japanese government contributes to international community. The constitutional argument alone cannot solve the issues that the Japanese government faces when they respond to requests from international society. For this, the following points should be examined: the government's responsibility to international society.

Is it a PKO responsibility to dispatch the SDF?

In the spirit of the constitution, we could say "yes". As mentioned above, the constitution encourages working positively for international peace. Of course, it doesn't mean that Japan is requested to dispatch SDF strongly from other countries. But it should be emphasized that Japan does not adopt isolationism. Japan is responsible to positively engage for international peace by using its resources. Before answering the question above, we have to examine necessity of international cooperation in terms of state responsibility to response emergency situations.

Japan has a responsibility to help other countries due to the following reasons. First of all, Japan can afford to help other countries. To support other countries, it is not required but it is preferable state stability and long-term peace. So far, Japan meets these two conditions. Second, Responsibility to Protect (R2P) will be the one of strong grounded reasons why Japan need to help others. International society has to response to certain situations in terms of the perspective of humanitarianism. Japan is not exception of R2P. Last point is international cooperation to maintain peace meets long-term national interests. It is motivated economical reasons but most of condition for prosperity is peace and political stability. It is not only regional peace and stability but also global because of globalism.

These reasons are enough to support idea of state responsibility for conflict situations. But these points do not mean that to dispatch SDF to PKO is obligation. As will be mentioned later, there are options how to support. So Japan doesn't need to stick this idea. Even though the international community needs a force powerful enough to respond to the R2P (Uesugi, 2008b p3), Japan should have the freedom to follow its own way to take its responsibility to protect people who are suffering, without necessarily using force.

Now, Japan needs to consider again the form of possible international cooperation. Based on constitutional ground, to dispatch SDF to Iraq to support UN military operation is illegal. But Japan cannot stop assisting international society. Japan has to think how to respond to the requests of the international community.

Conclusion

Isezaki argues that the constitution does not advocate a hands-off approach. Rather, it advocates active pacifism, because the Constitution states in its preceding sentence (2008, p77):

We desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery,     oppression and intolerance for all time from the earth. We recognize that all peoples of the world have the right to live in the peace, free from fear and want.

Those who strongly oppose SDF deployment easily answer this constitutional responsibility. Their argument is that Japan should not get involved in missions related to military operations, and should focus on more root causes of conflict such as poverty. It makes sense. But, even if international society aims to reduce poverty and thus reduce violence, it does not spend nearly enough money on this issue, as the history of foreign aid has proven. In addition, even though international society has been making full effort to deal with conflicts for less victims and damages, it is never enough (Isezaki, 2008).

As a general point on international cooperation, monetary support for UN operations, such as Japan's support of the first Gulf War, should be recognized and valued. Japan should not be ashamed of the way it offered support, especially because international society was seriously lacking of funds, and depended heavily of Japan's contribution. But, in the future, the money that Japan offers to other nations should be monitored, and should not be given in a lump-sum. It is also important that Japan inform these things clearly to it own citizens. 

Taking a position between the extreme pro-SDF and anti-SDF arguments, my opinion is that Japan can use the SDF as one form of international cooperation, along with aid. But Japan should design a clear diplomatic policy on this matter, before dispatching the SDF to other countries. One of the weaknesses of Japan is international diplomacy. Then, Japan has not taken advantage of acquired skills and knowledge for long time. As Isezaki has suggested, there are some options for the SDF to play a significant role in post-conflict societies. For instance, to take a part of Security Sector Reform (SSR), and the observation of ceasefires are possibilities. These missions are not necessarily required to use force, and thus they do not violate the constitution (Isezaki, 2008).


[1] From the very beginning, Prime Minister Yoshida who came from LDP supported Article 9 because in most cases war had started under the name of self-defense. Therefore any defense force should not allow to exist during the deliberation of congress (1946, the Diet). The JCP and SDP, on the other hand, insisted that the Japanese government had to have armed force as sovereign state.

[2] Global Article 9 Conference to Abolish War was held in Tokyo Japan in 2008, which took place from May 4-6, 2008. (Global Article 9 Conference to Abolish War, ABC News, 2008).

[3] Since it is a court decision by one of the regional Supreme Courts, ruling from a lower court cannot enforce the law.

References

ABC News (May 4, 2008), Thousands rally for Japan constitution, Thousands vow to protect Japan's pacifist constitution from changes, Retrieved Jan 29th 2009, from

http://abcnews.go.com/International/wireStory?id=4782638

Asahi Shinbun (Dec 21st 2004) Survey, Asahi com. Retirieved Jan 25th 2009, from

http://www2.asahi.com/special/jieitai/TKY200412200288.html

Global Article 9 Conference to Abolish War, (2007), Retrieved Jan 28th 2009, from

http://whynot9.jp/index_en.html

Isezaki, K (2008) International Cooperation through SDF, Ž©‰q‘à‚̍‘ÛvŒ£‚ÍŒ›–@9ð‚Å [trans. Mine], p77.

Magazine 9 (2008) Retrieve Jan 20th 2009, from http://www.magazine9.jp/juku/054/054.php

New KOMEI (2006) Interview with Kazuhisa Ogawa, (translated mine)

Retrieved Jan 27th 2009, from http://www.komei.or.jp/news/2006/0622/6405.html

The draft of the constitution (2005). Liberal Democratic Party. Retrieved August 30th 2008 from,

http://www.kenpoukaigi.gr.jp/seitoutou/051028jimin-sinkenpousouan.pdf

The underlying reasons for the ruling, On the Constitutionality of Self-Defence Force missions in Iraq, Retrieved Jan 28 from http://www.haheisashidome.jp/hanketsu_kouso/20080417English.pdf

Uesugi, Y (2008a), A Japanese framework for peaceful cooperation, peacebuilding support, and strengthening the system for dispatching civilian specialists [trans mine].

Uesugi, Y (2008b), The position of the Self Defense Force's peaceful international activity in the

international peaceful cooperative policy of Japan - the importance of territory: the perspective of policy and curriculum[trans mine].

Uesugi, Y (2008c), Japan: from the land of the last samurai to the nation of international cooperation [trans. mine]

Yomiuri online (April 17th 2008). Retrieve September 1st, 2008 from,

http://www.yomiuri.co.jp/feature/20080115-899570/news/20080417-OYT1T00502.htm


Noriko Hashimoto is an MA candidate at the University for Peace, in the dual campus programme with Ateneo de Manila in the Philippines.
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