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Japan’s Antiterrorism Special Measures Law and confusion over U.N. authority

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Once again there is political debate over military-related legislation under the shadow of Article 9 of the Japanese Constitution, and once again it has revealed confusion over the international law and constitutional issues involved. The debate is over the extension of the Antiterrorism Special Measures Law (ATSML), which is the legal authority under which the Maritime SDF (MSDF) is providing logistical and intelligence support in the Indian Ocean for the North Atlantic Treaty Organization’s (NATO) operations in Afghanistan.

The Democratic Party of Japan (DPJ) has announced its opposition to extending the law while the governing Liberal Democratic Party (LDP) has committed itself to either extending the ATSML or passing a new law in its place. The confusion revealed by their arguments has serious ramifications not only for the decision on the ATSML, but also for the broader discussion on constitutional reform.

There are a number of aspects of the debate that reveal this confusion, but here let us focus on just one — the significance of U.N. authority for the operations in Afghanistan.

The DPJ has argued that Japan should no longer provide support for the security operations in Afghanistan because they are collective self-defense operations and not authorized by the United Nations. It has more recently tried to refine this position, suggesting that NATO operations in Afghanistan could be supported, since they are U.N. authorized, but that U.S. operations ought not to be supported since they are not so authorized. The government in turn, in its response to these arguments, has similarly given credence to the importance of U.N. authority.

These arguments of the DPJ are in fact factually inaccurate, but more fundamentally important is that the suggestion that U.N. authority is somehow significant to the question of whether Japan may support the operations suggests a serious misunderstanding of the legal issues involved and how they apply to Article 9 of the Constitution.

First, let us review briefly the facts regarding the operations in Afghanistan, the authorization for them and the inaccuracies in the DPJ arguments. There are two separate but increasingly integrated military operations being conducted in Afghanistan:

Operation Enduring Freedom commenced in October 2001, based on the right of individual and collective self-defense under Article 51 of the U.N. Charter. It predominantly, but not exclusively, comprises U.S. forces, and its focus is primarily counter-insurgency operations against Taliban and al-Qaida forces.

The other operations are those of the International Security Assistance Force (ISAF), comprising the armed forces of 26 NATO countries (including those of the United States) and 11 other countries. ISAF was established by authority of the U.N. Security Council with Resolution 1386 in December 2001. Its mandate is to assist in maintaining security in Afghanistan and is explicitly authorized to use force by Security Council resolution, pursuant to Article 42 of the U.N. Charter. It is a U.N. Collective Security operation that, among other nation-building activities, is also engaged in counter-insurgency operations.

The initial authority and mandates of the two operations were thus different, and in that the DPJ is correct. However, the increased cooperation and integration of ISAF and Operation Enduring Freedom activities has been authorized and encouraged by the Security Council (Resolutions 1510, 1707 and others). Indeed, several countries, including Canada and the U.S., are involved in both operations. Operation Enduring Freedom has thus been endorsed by the U.N., and its operations actively supported by the U.N.-established ISAF.

In terms of authority for the support of operations, the Security Council has also specifically (Resolutions 1386 and 1707 among others) called upon member states to contribute personnel, equipment and other resources to ISAF.

Thus Japan’s logistical support for ISAF is clearly U.N.-authorized, and ISAF’s cooperation with Operation Enduring Freedom has been authorized and encouraged. It is thus not accurate to say that U.S. operations in Afghanistan are entirely unauthorized by the U.N., or that Japanese support for those operations is unauthorized. And as a practical matter, trying to support the operations of one but not the other would be both difficult and contrary to the spirit of U.N. efforts.

Moving to the more fundamental issue, however, we find that U.N. authority is completely irrelevant to the constitutional issues in the ATSML debate. The fact that both sides are arguing about it reflects their apparent failure to understand the legal issues in play here.

Central to the DPJ position is the idea that if the operations in Afghanistan are U.N.-authorized then SDF involvement would not violate Article 9, but that if the operations are not authorized by the U.N., and are purely collective self-defense operations, then SDF involvement would be prohibited by Article 9.

That argument, however, is not consistent with either a plain reading of Article 9 or the long-standing government interpretation of it. The generally accepted interpretation of Article 9 is that both collective self-defense and participation in collective security operations under Chapter 7 of the U.N. Charter are prohibited. Collective security operations, after all, constitute the use of armed force to restore and maintain peace and security, and Article 9 quite explicitly renounces the threat or use of force as a means of settling international disputes. U.N. peacekeeping operations, authorized under Chapter 6, have been interpreted as being permissible since the passage of the PKO Law in 1992, but only in conditions where there is no use of armed force. That is not the situation in Afghanistan, legally or factually.

What both sides seem to miss is that the preliminary and most fundamental constitutional question that has to be asked in this debate is whether the MSDF activity should be considered an integral component of the ISAF operations so as to bring it within the scope of Article 9. For the operations in Afghanistan clearly constitute the use of force, and Article 9 clearly prohibits the use of force.

If MSDF activity is necessary and integral to operations that constitute the use of military force such that MSDF activity may itself be characterized as being part of the use of armed force, and Japan thus characterized as a belligerent in the armed conflict in Afghanistan, then the conduct of the MSDF is in violation of Article 9 and U.N. authority for those operations cannot legitimize the MSDF activity under the Constitution.

On the other hand, if the MSDF activities are sufficiently distinct and apart from the operations in Afghanistan such that they do not come within the scope of the conduct prohibited by Article 9, then once again the authority under international law for the operations in Afghanistan is irrelevant — they could be collective self-defense, collective security operations or a war of aggression.

So either way, whether the MSDF activity does or does not constitute the use of armed force, U.N. authority for the operations in Afghanistan is entirely irrelevant as a constitutional matter.

Thus the DPJ arguments regarding U.N. authority reveal apparent confusion regarding the relationship between international legal principles and Article 9, and about what conduct is permissible under Article 9.

Yet the government’s arguments and conduct reveal similar inconsistency and confusion. The government of course takes the position that the MSDF activity does not come within the scope of war or the use of force prohibited by Article 9. And indeed the ATSML is very specific in limiting the SDF activities to noncombat areas and restricting any use of weapons by all SDF to situations where it is unavoidable for the defense of SDF troops and others under their control. The government has thus clearly tried to remain one step removed from involvement in the armed conflict in Afghanistan.

At the same time, however, the government has claimed in the context of the ATSML debate that the MSDF’s contributions are essential to coalition operations in Afghanistan. As of October 2006, Japan had supplied $168 million worth of fuel, or an average of $33 million worth of fuel per year. The MSDF also has Aegis missile-system destroyers deployed as part of the squadron in the Indian Ocean, engaged in important electronic intelligence-gathering operations.

It is difficult for the government to argue that this refueling of naval vessels and intelligence sharing in the Indian Ocean is essential to operations that involve the use of armed force against the Taliban and other insurgent forces in Afghanistan, but that such activity has nothing to do with the use of armed force. Logistics and intelligence are an absolutely crucial element of war fighting, and naval refueling capabilities are an essential component of force-projection.

Could it be argued, for instance, under the international law governing armed conflict, that Japanese naval assets involved in the Afghanistan-related operations would not be legitimate military targets if the enemy in Afghanistan had the ability to strike them?

Moreover, the government itself has also begun to suggest that U.N. authorization of its operations are important, thus falling into the same logical fallacies as the DPJ. In response to DPJ opposition it has made efforts to have the U.N. Security Council add language to a recent resolution expressing appreciation for naval interdiction and supply activities. Similarly, the minister of Foreign Affairs has recently referred to U.N. authority in explaining the legitimacy of the ATSML.

Thus the government, too, suggests that somehow U.N. authorization is relevant to the constitutionality of the MSDF’s activities, which is not only wrong but also rather inconsistent with its argument that the activity is in no way implicated in the use of force.

There are, of course, political imperatives underlying the arguments being made on both sides, but we are here dealing only with the purported legal rationales that are being advanced by both the DPJ and the government. There are also other important legal aspects to the debate that we have not addressed here, such as the government proposal to abandon Diet oversight of SDF operations in the new law, and increasing evidence that even under the current law MSDF support has been illegally used in support of operations in Iraq.

Leaving those for another day, even this one aspect of the debate, which has revealed confusion on both sides regarding the crucial question of what military operations are permissible under Article 9, is disturbing. It not only undermines confidence regarding how the issue of the ATSML will be resolved, but has much deeper implications for how the efforts of both parties should be viewed within the broader discourse on constitutional reform.

Craig Martin is a Canadian lawyer and a former naval officer. He is currently conducting doctoral research at the University of Pennsylvania on the interaction of constitutional and international law constraints on the use of armed force. He is also a graduate of and occasional lecturer at Osaka University Graduate School of Law. E-mail: craigxmartin@gmail.com.