Statement Opposing the Dispatch of the Self-Defense Forces to Waters in the Middle East
The Japanese Government decided at a cabinet meeting on December 27, 2019 to dispatch a destroyer and a P-3C fixed-wing patrol aircraft that was engaged in anti-piracy missions off Somalia, to the Gulf of Aden and the adjoining waters in the Middle East for intelligence collecting activities required to ensure the safety of Japan-related commercial vessels.
In the wake of the Unites States’ withdrawal from the Iran nuclear deal in May 2018, there were attacks and harassment against tankers passing through the Strait of Hormuz. Consequently, the United States called on its allies, including Japan, to participate in a fleet assembled from countries enlisted as a coalition of the willing, to safeguard shipping in the Strait of Hormuz.
However, Japan eventually opted for the deployment of a unit as described above, instead of joining the coalition of the willing led by the United States, taking into account the long-established friendship with Iran.
The dispatching of the Self-Defense Forces (SDF) to waters in the Middle East was justified on the grounds of “research and studies” provided in Item (xviii), Paragraph (1), Article 4 of the Act for Establishment of the Ministry of Defense. However, such “research and studies” is set forth in the Act as the administrative function of the Ministry of Defense.
It has been stipulated, in the first place, that the duties, activities and power of the SDF are “governed by the provisions of the Self-Defense Forces Act” (Article 5 of the Act for Establishment of the Ministry of Defense). In regard also to the research and studies conducted by the SDF, the Self-Defense Forces Act limits the scope of their research and study activities by individual provisions (such as Articles 25, 26, 27, and 27(2)). Nevertheless, the SDF is now being dispatched to waters in the Middle East without any grounds in the Self-Defense Forces Act, which we suspect violates the Article 5 of the Act for Establishment of the Ministry of Defense.
The Constitution of Japan restricts the duties and power of the SDF to what is specified in the Self-Defense Forces Act, under its thoroughgoing pacifism desiring eternal peace by guaranteeing the right to live in peace (Preamble), renouncing war (Paragraph (1), Article 9), as well as maintaining no war potential and denying the sovereign right of belligerency (Paragraph (2), Article 9). The Constitution denies any other duties and power of the SDF than those defined in the Self-Defense Forces Act, thereby controlling the SDF’s activities. If we extend the legal basis for the SDF activities to the “research and studies” in Item (xviii), Paragraph (1), Article 4 of the Act for Establishment of the Ministry of Defense, in addition to the Self-Defense Forces Act, there is a danger that the deterrent to the SDF activities will be lost and it may conflict with the constitutionalism which ensures that the national agencies are bound by the Constitution.
Moreover, given that the deployment of the SDF to waters in the Middle East at this time assumes “participating in necessary communication and collaborative operations with other countries, etc.”, we cannot rule out a possibility of the SDF sharing information with the armed forces of the United States and other states that are part of the coalition of the willing. If the SDF provides information to the forces of the coalition of the willing countries, which are legitimately allowed to use military force, such provision of information may be integrated into the “use of force” prohibited by Article 9 of the Constitution of Japan. Additionally, according to the cabinet decision made at this time, they assume that collecting the information necessary to ensure safe passage of Japanese commercial vessels is required in order to determine the necessity for maritime security action (Articles 82 and 93, the Self-Defense Forces Act) for protection of Japanese commercial vessels, or to take such action smoothly when it was commanded, in the event of any unpredicted incidents in waters in the Middle East (e.g. arising of contingencies). However, if such a maritime security action or use of weapons to protect arms, etc. (Article 95 and Article 95(2), the Self-Defense Forces Act) is undertaken against a state or an organization equivalent to a state, it not only conflicts with the prohibition of “use of force” set forth in Article 9 of the Constitution of Japan, but also has the potential to develop into acts of combat. Thus, there is no doubt that allowing the SDF personnel to perform such potentially dangerous activities, without being bound by the Self-Defense Forces Act, presents serious problems.
Regarding this operation, the Government announced that the period of the SDF activities would be one year and that a separate cabinet decision would be made if the operation length should be extended. They also announced that the Government would report to the Diet when such a cabinet decision was made and upon completion of the operation. However, the dispatch of the SDF to waters in the Middle East at this time involves critically serious constitutional concerns that cannot be extinguished by the Government providing ex post reporting to the Diet. If they recognize that ensuring safe passage of Japanese vessels in waters in the Middle East is an issue that should be addressed by the Japanese government, they have to fulfill accountability to the Diet for the necessity and the legal grounds for the action and, having the matter carefully deliberated in the Diet, they should determine on certain constitutionally acceptable countermeasures.
Therefore, with respect to the dispatch of the SDF to waters in the Middle East at this time, the Japan Federation of Bar Associations hereby expresses its strong opposition to the fact that the overseas deployment of the SDF was determined exclusively by a cabinet decision, without undergoing adequate deliberations in the Diet, and despite having the potential for violation of Article 5 of the Act for Establishment of the Ministry of Defense and conflict with the eternal pacifism and constitutionalism.
December 27, 2019
Japan Federation of Bar Associations