The Nagoya High Court Thursday ruled that the Air Self-Defense Force’s mission in Iraq includes activities that violate the war-renouncing Constitution. It rejects the government’s explanations concerning the dispatch of an ASDF unit to Iraq. Although the government says that the ruling does not bind its actions — because the constitutional issue was not addressed in the main part of the ruling — the political parties should deepen discussions on the ASDF’s role in Iraq by fully considering the ruling. Now that the ruling has been made, it is the government’s minimum duty to disclose additional information related to the matter.
The lawsuit was filed by about 1,100 people who asked for a halt to the dispatch of the Self-Defense Forces to Iraq and solatium payments for their psychological pain caused by the dispatch. Similar lawsuits were filed at 11 district courts, but the plaintiffs lost these cases. The Nagoya High Court’s ruling is significant in that for the first time in 35 years, a court squarely dealt with the question of whether the SDF or its activities are constitutional.
But the high court turned down the plaintiffs’ request for a halt to the mission and compensation. As far as the formality is concerned, therefore, the defendant, which is the state, is the winner. Nonetheless, the high court’s decision concerning the constitutionality of the ASDF’s Iraq mission will be finalized because the state, which won the ruling, cannot appeal the ruling and the plaintiffs decided not to appeal it.
In July 2003, the special law to allow the SDF to provide humanitarian support for Iraqi reconstruction was enacted. On the basis of the law a Ground Self-Defense Force unit was sent to Samawah in southern Iraq, but was withdrawn in July 2006. An ASDF unit composed of thee C-130 transport aircraft and about 200 ASDF members was sent to Kuwait. Initially the unit’s transport mission was limited to southern Iraq. But later the ASDF flights were expanded to Baghdad and Arbil in northern Iraq.
The ASDF aircraft are transporting soldiers of the multinational forces in Iraq, U.N. workers and cargo for these organizations. As of April 17 they had made flights on 694 days and carried 595.8 tons of cargo. But the Defense Ministry does not disclose whether the cargo included ammunition, whether the airlifted personnel were armed or how many people were transported by the ASDF.
The special law bans the SDF from using force and threats, and requires it to carry out its missions in noncombat zones. The high court ruling said that Baghdad should be considered a combat zone because killings and subversive activities take place there. It pointed out that U.S. forces and Shiite and Sunni militants are carrying out attacks against each other, causing many casualties.
The ruling said that although the ASDF’s transport mission does not constitute use of force in itself, transport is an important part of combat activities in modern warfare and the ASDF’s activities constitute rear logistic support indispensable for the multinational forces’ combat activities. It then said that the ASDF’s act of transporting armed soldiers of the multinational forces to Baghdad, a combat zone, is integral to the use of force by other countries and therefore must be regarded as use of force on the part of the ASDF.
It concluded that the ASDF’s transport mission includes activities that violate the special law’s clauses prohibiting the use of force and activities in a combat zone, and Section 1, Article 9 of the Constitution, which says, “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.”
The ruling serves as criticism of statements then Prime Minister Junichiro Koizumi made in the Diet over the special law. Concerning the definition of a combat zone, he said in July 2003, “How can I tell which area is a noncombat zone and which area a combat zone?” In November 2004, he said, “The area where the SDF is carrying out its activities is a noncombat zone.”
The ruling also said that the right to live peacefully is the basis of basic human rights and a right guaranteed by the Constitution. While turning down the lawsuit on the grounds that the plaintiffs’ right to live peacefully has not been violated in a concrete manner, the ruling said that there are cases in which people can ask the court for redress if their lives and freedom are violated by war activities and use of force that run counter to Article 9.
The ruling serves as a reminder that when Japan dispatches SDF units overseas, it should be done in strict adherence to the war-renouncing Article 9. It also strengthens the case that the government must disclose detailed information about the ASDF’s activities in Iraq so that the Diet and people can scrutinize them.