PHILADELPHIA – As the debate continues in Japan’s Diet this month over a new Antiterrorism Special Measures Law (ASM Law) authorizing Japanese naval force activities in the Indian Ocean, serious attention must be paid to the issues of exactly how such activity is to be limited, and how the Diet can meaningfully monitor compliance with such limitations.
These are not simply political or operational issues, but constitutional issues.
The current draft of the ASM Law purports to authorize the Maritime Self-Defense Force (MSDF) to supply fuel to coalition forces engaged in maritime interdiction operations related to Afghanistan. The law would restrict, among other things, the MSDF’s area of operations, its involvement in any use of force, and the purpose for which the fuel it provides may be used. These limitations have been explained as being necessary to ensure that Article 9 of the Constitution is not violated.
Yet the U.S. government has recently made clear that it will not agree to respect any limitations that Japanese law may seek to impose on the use of fuel provided by the MSDF.
From the U.S. perspective, Operation Enduring Freedom, the U.N.-authorized ISAF (International Security Assistance Force) operations in Afghanistan, the U.S. operations in Iraq, and, for that matter, potential activities in other areas in the region, are all part of a broader campaign, and U.S. naval assets are not dedicated exclusively to any one operation. Operational flexibility is paramount.
The Japanese government has been desperate since November to renew its contribution to U.S. efforts, and may feel the pressure now to agree to ill-defined or legally ambiguous naval operations. Canada went through a similar process in 2003.
In February 2003, Canada assumed command of a multinational naval task force — TF 151 — operating near the Persian Gulf in support of operations in Afghanistan. The Canadian Department of National Defense (DND) had agreed to take command on the assumption that Canada would likely participate in the looming invasion of Iraq.
The Canadian government decided in March 2003, however, not to support the U.S. invasion of Iraq, but it was clear by then that TF 151 would be involved in support of operations relating to both Afghanistan and Iraq.
This created an enormous dilemma for Canada. The DND was of the view that it could not continue in command of TF 151 under such circumstances. It had internal legal opinions that concluded that any Canadian participation in maritime interdiction operations related to the war in Iraq would make Canada a belligerent in that war under international law, regardless of what position the government adopted publicly.
The Ministry of Foreign Affairs was opposed to Canada relinquishing command of TF 151, fearing that doing so would further antagonize Canada’s most important ally. The prime minister went along with Foreign Affairs, and publicly stated that Canada’s naval forces would continue to operate in TF 151, but only with respect to the operations in Afghanistan.
This was possible for some countries in the task force, as their ships were assigned to sectors far removed from Iraq. But in practical terms, this was impossible for Canada, as it was exercising command of the task force, and the task force as a whole could not be so limited. In practice, Canada continued with a “double-hatted” operation (serving two mandates simultaneously), but one mandate was in respect of a war that Canada had publicly refused to join and whose legality Canada had publicly questioned.
Canada continued in command of TF 151 until June 2003. It is still not known to what extent Canadian forces were involved in operations relating to Iraq. It was only due to extreme good fortune that Canada was saved from potential legal and public relations nightmares arising from direct engagement with Iraqi assets or the detention of high-profile Iraqi officials during that period.
Canada was actually engaged in interdiction operations — not merely logistical support — but then again Canada has no constitutional constraints on its involvement in the use of force either.
Notwithstanding these differences, Japan can take some lessons from the Canadian experience. For one, it should be recognized that many naval operations in the region are “double-hatted.” More importantly, Canada got into a legally untenable situation primarily due to a perceived need to satisfy its American ally, which made no distinctions between operations in support of Afghanistan and those in support of war in Iraq.
In practical and legal terms, Canada’s conduct was inconsistent with its public political posture. It was lucky to have avoided any serious embarrassment, but then the integrity of its constitution was not at stake either. Finally, political monitoring for compliance with the public position was difficult.
In Japan there have already been incidents of the MSDF providing false information to politicians regarding its fueling operations in the Indian Ocean, leading to members of Cabinet making false statements to the public about the nature of Japan’s military involvement in so-called antiterrorism operations.
Yet the current ASM Law has less Diet oversight and control over the MSDF than the previous one. Without specific legal requirements, oversight and control of operations will be difficult. But consider the effect if it were later disclosed that the MSDF had supplied U.S. ships that were shortly thereafter involved in strikes on “terrorist sites” in northern Pakistan, or engagements with Iranian vessels.
To the extent that the Japanese government and people believe that support for military activity other than maritime interdiction operations related to Afghanistan could violate Article 9 of the Constitution, then the new ASM Law ought to contain clear limitations to that effect, and provide clear and effective mechanisms for the Diet to monitor MSDF operations to ensure compliance.
Moreover, the new ASM Law ought to specify that the MSDF may only supply fuel to those coalition countries that formally agree to limit their use of such supply for those purposes.
Several coalition nations have limited their naval forces to support for operations relating to Afghanistan. Japan’s efforts are in support of NATO as a whole, and if the United States finds such limitations overly restrictive for its own operational effectiveness, it will nonetheless benefit from Japanese supply to other NATO forces.
On the other hand, if such limitations are determined to be truly unworkable from an operational perspective, then Japan needs to rethink whether it can provide the logistical support requested. But Japan cannot allow itself to slide into a legally ambiguous situation that could result in a violation of a core principle in its Constitution, merely to accommodate the operational flexibility requirements of the U.S. Navy.
Craig Martin, a Canadian lawyer and former naval officer, is working on a doctorate at the University of Pennsylvania on the relationship between constitutional and international law constraints on the use of armed force. E-mail: email@example.com.