The Nagoya High Court handed down a judgment last week on Japan’s involvement in Iraq. While dismissing the applicants’ claims on the basis that they lacked legal standing, the Court held that the Air Self-Defence Force (ASDF) operations in Iraq violated the limits in the authorizing legislation, and the prohibition on the use of force in Article 9(1) of the Constitution.
The judgment, and how the government is responding to it, raises profoundly important issues. The case was one of dozens that have been commenced by citizen groups in opposition to the deployment of the SDF in support of operations in Afghanistan and Iraq. This is the first decision that has held that the operations are unconstitutional, and it is the most important decision involving Art. 9 to be handed down by a court in over 25 years. Below I provide more of the background and the reasoning of the decision, but first, I address the main issues it raises.
The court dismissed the plaintiffs’ claims both for damages in respect of their right to live in peace, and for the injunction against continued deployment of the ASDF. The plaintiffs were found not to have a direct legal interest that would be harmed by the ASDF operations. While finding that the deployment in Iraq was a violation of the prohibition on the use of force in Art. 9 of the Constitution, it held that the plaintiffs did not have standing to claim a remedy for that violation. It was, therefore, a win for the government in terms of the specific demands of plaintiffs. Yet it was a major set-back for the government in terms of its policy having been judged as being unconstitutional.
Representatives of the government, including the prime minister, have not only made statements to the effect that the judgment will not change any aspect of government policy, but are rejecting the validity of the decision. Chief Cabinet Secretary Machimura stated that “I cannot accept such a court ruling when the Japanese government has determined that [Baghdad airport] is a non-combat zone.” The court found as a matter of both fact and law, on the basis of the evidence before it and its interpretation of the definition of “combat area” in the Iraq Special Measures Law, that Baghdad was a combat zone.
Even Adm. Saito, Chief of Staff of the SDF, commented that “the ASDF mission does not play an integral part in the use of force”. This was a direct contradiction of the finding of the Court, which held that the ASDF transportation of armed coalition forces in order to assist in their participation in armed conflict, made the ASDF activity necessary for and integral to the overall use of force by coalition forces.
The primary issues that arise from this, in my view, are:
1) The rule of law and division of powers – notwithstanding the dismissal of the specific claims, an appellate court has held that government activity is a violation of a provision that forms one of the three fundamental pillars of Japan’s constitutional order. If the government continues to treat the judgment as irrelevant, and its representatives continue to make statements that fundamentally reject the findings of the court, what does that say about the rule of law in Japan? What will be the impact on the authority of the courts, and the balance of power among the three branches of government? That the senior military officer in the SDF could be allowed to publicly contradict and reject a judgment of a high court, is extraordinary.
2) The further emasculation of the Constitution – Not unrelated to the first issue, is the continued erosion of the normative power of constitution, both by continued judicial narrowing of the standing required to seek enforceent of the Constitution, and by continued government rejection of judicial interpretations of the Constitution. While the Nagoya High Court speculated that there could be circumstances in which citizens might be able to advance a claim for the violation of Art. 9, the reality is that given the requirement to demonstrate direct and concrete harm to a narrow legal interest, there are few scenarios in which citizens may actually seek judicial review of executive action in violation of Art. 9. Where the government is allowed to further ignore and treat with contempt the decisions of courts wherein it is held that, notwithstanding the plaintiffs’ lack of standing, government action is in violation of the Constitution, then entire provisions of the Constitution become practically unenforceable and of little or no normative content. This was similarly illustrated in last year’s Yasukuni Shrine decision of the Supreme Court.
Background and the Judgment
The operations in Iraq were authorized by the Iraq Special Measures Law (Law No. 137 of 2003), which provided that the SDF could be deployed to provide humanitarian and reconstruction support to coalition forces in Iraq.
The law was passed after official hostilities had been declared at an end, and the period of belligerent occupation authorized by the U.N. Security Council had begun. The law very specifically limited SDF activity to areas of Iraq where combat was not taking place and was not expected to take place, and it defined combat as acts of killing and injuring, or destroying of property, in the context of international armed conflict (Art.2(3)). Japan deployed some 600 members of the GSDF to the South of Iraq until 2006, but continues to deploy ASDF elements, principally C-130 Hercules aircraft, for the transporting of supplies and coalition forces between Kuwait and Iraq, and between cities within Iraq.
Law suites challenged the law and the deployment of the SDF on the basis that the involvement in Iraq constituted the use of force in violation of Art. 9(1) of the Constitution, which reads in part: “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 over 1,100 plaintiffs in the Nagoya case also alleged that the SDF forces sent to Iraq were operating in a combat zone, in violation of the Iraq Special Measures Law, arguing that this further enforced the inference that their activity constituted the use of force.
The district court dismissed the claims of the plaintiffs on the usual ground that they did not have standing, since they could not demonstrate that they had the kind of direct legal interest that would be harmed by the deployment. The plaintiffs had, as is standard in all such cases, claimed damages for the psychological harm that was caused by the infringement of their right to live in peace, but the court rejected the argument. This was in line with the decision in the famous Naganuma case in 1982, which held that the most narrow and direct individual legal interests had to be implicated by the state action in order for plaintiffs to have standing to advance claims of constitutional violation.
The Nagoya High Court confirmed that decision, holding that while the plaintiffs did indeed have a right to live in peace, a right that arose from Art. 9, the deployment of the SDF to Iraq did not cause any direct harm to the plaintiffs’ specific legal interests. They therefore did not have the standing to sue for either damages or an injunction. Notwithstanding that decision, however, the Court, presided over by Justice Aoyama (who I understand is very soon to retire, and so this was one of his last judgments) first held that deployment of the SDF to Iraq, and particularly the current operations of the ASDF in transporting supplies and armed coalition forces from Kuwait to such areas in Iraq as Baghdad, constituted the use of force and was thus a violation of Art. 9(1).
The Court held that Baghdad was certainly a combat zone, given the ongoing hostilities among various militia and insurgent groups, and between such groups and coalition forces. Representatives of the Ministry of Defence gave testimony that Baghdad airport itself, while tightly defended by U.S. forces, was susceptible to attack. Flying troops and supplies into such a combat zone clearly violated the Iraq Special Measures Law, and constituted participation in the use of force in violation of Art. 9(1). The Court explained that the transporting of armed troops to combat zones, troops that were involved in the use of armed force and were being transported for the purpose of engaging in combat, made Japan activity integral to and necessary for the use of force by coalition forces. The activity thus constituted the use of force by Japan, in clear violation of the prohibition in Art. 9(1) of the Constitution.
As an aside, the decision is not yet officially available anywhere that I can find on the internet. It is not yet on the public court hanrei database site, nor is it available through the Lex/DB subscription service. Fortunately, the plaintiffs posted a copy on their litigation homepage – here.