Part III, Section 1 – Opinions and Their Premises Regarding the 4 Scenarios: the panel returns to the question of constitutional interpretation, this time explaining “The Panel’s Fundamental Understanding of Art. 9.” In section one of this part, the panel outlines its opinion and its underlying assumptions with respect to the four problems. After rehashing the changes in threats already discussed above, it articulates the two assumptions that underlie its recommendations for the minimum necessary changes to the interpretation of the Constitution. These are i) that there must be continued maintenance of pacifism and international cooperation as fundamental principles of the Constitution; and ii) even where there is the exercise of collective self-defence or collective security operations under a new national security policy, it cannot be without limits. The panel indicates that the specific limitations will be discussed in Part IV.

Part III, Section 2 – The Interpretation of Art. 9: The panel turns next to its own interpretation of Art. 9. It again summarizes the government interpretation, then begins its discussion with the assertion that in interpreting laws and the Constitution, while it may be natural to interpret the text of each provision, it is also necessary to examine the entire context of the law in its entirety, the history of its formation, the country’s national strategies, the society as a whole, the economy, and other related circumstances.

Moreover, the panel continues, in the event that a particular provision has some connection with international relations, then it is also necessary to consider the concepts and language of those provision as they are understood in international law. All of this is all the more important when it is the Constitution that is being considered. Since the features of Art. 9, such as war, use of force, individual self-defence, collective self-defence, collective security and so forth, are all international law concepts, it is impossible to interpret them without an understanding of international law and international relations.

The report concludes this section, prior to any analysis of the text, history, or international law perspectives relating to the provision, with the assertion that the government interpretation reflects the international relations of the post-war period and Cold War era, and repeats that the circumstances have changed since then.

Part III, Section 3 – Collective Self-Defence: In this section the panel finally gets to the text of Art. 9, and argues that it does not support the government interpretation that Japan, as a state, is entirely forbidden from using force in international relations. After citing the language of Art. 9, the panel draws attention to the clause “forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes”, and emphasizes that it does not contain any provision to the effect that “Japan, as a state, is completely prohibited from exercising the use of its actual capabilities in foreign relations”, but rather, only war as a sovereign right and the use of force “to resolve international disputes” is forever renounced. Thus, the argument continues, the better view is that not only individual self-defence but also the exercise of collective self-defence and collective security operations are actually outside of the scope of the prohibition. [This argument will be analyzed in detain at the end of the review of the report]

The panel argues that the concept of war renunciation in Art. 9(1) has a long history, from the Kellogg-Briand Pact, the League of Nations, the U.N. Charter, and similar instruments of international law, and in that historical development, there is not one instance of the concept including any prohibition on individual self-defence, collective self-defence, or collective security operations. On the contrary, the idea of the renunciation of war is predicated on the premise that international disputes will be resolved by peaceful measures, and by the use of force within the collective security system, through international cooperation under first the League of Nations, and later the U.N. Charter. It was part of the emergence of a system that prohibited the use of force by individual states to resolve disputes.

Looked at from this background, the panel explains, Japan, while promising unilaterally to no longer use force to resolve its own national disputes, on the other hand, ought not to take the position that it will not support international peace or participate actively in the restoration of international peace. Moreover, Art. 9 is based on the Kellogg-Briand Pact, which provided that “the High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.”

Thus, if, as already explained by the panel, it is accepted that Art. 9(1) (renouncing as a sovereign right of the nation war and the use of force for the settlement of international disputes) is not understood to prohibit collective self-defence or the participation in collective security operations, then, the first sentence of Art. 9(2), “in order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained” should be read as not prohibiting the maintenance of military forces for the purposes of self-defence and participating in collective self-defence operations. [This is the standard argument regarding the so-called ‘Ashida amendment’, which I will explain in the analysis at the end]

The panel then turns to the so-called “belligerency clause” in Art. 9(2), which provides that “the right of belligerency of the state will not be recognized.” The panel argues that this clause means that the “rights of belligerency” that are recognized in international law will not be recognized, and in particular, this means that the rights in international law relating to the commencement of war, termination of war, and so forth will not be recognized. This is, the panel explains, quite natural given the renunciation of “war as a sovereign right of the nation” in Art. 9(1), but the clause is thought of as a confirmation of that provision. Continuing, the panel blithely asserts that, on the other hand, it is clear that the “right of belligerency” that are not recognized in this provision are not the rights and obligations in the international humanitarian law in the 1949 Geneva Conventions and similar instruments. [This argument is manifestly incorrect, and will be addressed in some detain in the discussion at the end]

Part III, Section 4 – The conditions for the exercise of the right to self-defence: As touched on in Part I, the government has formerly established three conditions for the exercise of the right to self-defence under Art. 9, namely: 1) the existence of an imminent and unjustified invasion (shingai) of Japan; 2) there are no other appropriate means of repulsing the invasion; and 3) the exercise of the right stops at the minimum necessary level of the use of force (jitsuryoku, as opposed to buryoku, or armed force, as is used in Art. 9 itself). However, the first condition obviously assumes only the right of individual self-defence. But if collective self-defence is also recognized, then this condition needs to be changed. The panel also notes that the concept of “imminent unjustified invasion”, is obviously different from the condition precedent for the exercise of self-defence pursuant to the provisions of the U.N. Charter. Art. 51 of the U.N. Charter reflects the history of abuse of the right to self-defence prior to World War II, under the ambiguous condition of “imminent invasion”. Thus, in Art. 51 of the Charter the condition for exercise of the right was limited to the occurrence of an “armed attack”. But, the panel continues, if for some reason the U.N. Charter does not apply [i.e. the condition has not been satisfied], it does not mean that there can be scope for the right of self-defence under customary international law, in response to an “imminent unjust invasion” or a “use of force not reaching the level of armed attack” and so forth, and that fact is recognized in international court decisions. But, the panel concedes, this is restricted to extremely limited situations.

With respect to this problem, the panel explains, there is an argument in Japan based on the concept of “minor right of self-defence”, but this term is also ambiguous, and has not received sufficient international understanding. The panel goes on to note that, in the context of this concept, the exercise of the right to self- defence in Japan is predicated on the issuance of an order for the mobilization of defence forces, and the mobilization of the SDF is subjected the onerous procedural pre-conditions of there having been passage of a UNSC Resolution, and in addition, prior approval of the legislature. The panel argues that all of this means that in an urgent situation, it will not be possible for Japan to respond appropriately prior to the issuance of the command for mobilization of the military. These procedures are not thought to effectively respond to ballistic missile attack, terrorism, and other such new threats, and there ought to be consideration given to a legal system that can promptly and effectively respond to such threats.

Part III, Section 5 – The Possession and Use of the Right of Collective Self-Defence, and the Concept of International Dispute: The panel begins this section by noting that the government position on collective self-defence, as first stated on March 31, 1960, is that in terms of the core sense of the concept of deployment abroad to defend some other country, collective self-defence is not recognized in Japan’s Constitution. But the panel argues that in terms of the other aspects of the concept, the government has not made clear statements, notwithstanding the inconsistency of its position with academic theory. The current government view of collective self-defence was first stated in a committee meeting of the Diet on October 14, 1972, and was reiterated on May 29, 1981 in the following language:

It is therefore self-evident that since it is a sovereign state, Japan has the right of collective self-defense under international law. The Japanese government nevertheless takes the view that the exercise of the right of self-defense as authorized under Article IX of the Constitution is confined to the minimum necessary level for the defense of the country. The government believes that the exercise of the right of collective self-defense exceeds that limit and is not, therefore, permissible under the Constitution. [This translation of the government position appears in Richard J. Samuels, Securing Japan (2007)]

The panel then asks the question, how should one consider the relationship between the “possession” of a right and the “exercise” of the right? In the context of its recognition of the right to self-defence, while not recognizing the ability to exercise the right of collective self-defence, the government has not done enough to explain the precise grounds for its position, and thus has not sufficiently obtained the understanding of the people.

Moreover, the panel continues, the term “international disputes” in the clause “as a means of resolving international disputes” in Art 9(1), relates to the renunciation of the use of armed force by Japan as an individual state for the purpose of resolving international disputes to which it has become a party. This must be distinguished from circumstances in which Japan, acting under the framework of the U.N. and through international peacekeeping activity, cooperates to resolve an international dispute between third countries, as anticipated in by the preamble of the Constitution, which provides that “We believe that no nation is responsible to itself alone…”.

In the final section of this Part, the panel simply summarizes the foregoing. In Part IV, it makes its specific recommendations regarding the four scenarios under examination, and other related matters, which I will review briefly in the next post. The next post will also engage in a critical analysis of the arguments that the panel has provided, particularly those in Part III on the interpretation of Art. 9.

Part I, section 1

It begins by establishing the premise that it is necessary for the national security policy of Japan to adapt to changes in the international environment. Moving from that premise, the report then establishes that as a country governed by the rule of law, the national security policy must be constructed on a foundation of clearly defined laws. However, it argues that this foundation must constantly be re-examined so as to accord with the reality of shifts in the national security threats. It asserts that while the legal foundation as it now exists is based in part on the Constitution, it also reflects the historical reality, both in political and in strategic terms, that existed at the time of its formation. Since those circumstances have changed, it is appropriate to re-examine and reform the legal foundation to ensure it complies with today’s realities.

This conclusion is followed by several qualifiers, regarding the degree of change in the threat environment that makes such reform necessary, and the assertion that “it goes without saying that the interpretation of law cannot simply be a convenience to be adjusted in conformity with the circumstances. But nor does it mean that looked at legally, the interpretation that has been maintained until now is the only possible rational interpretation.” It then goes on to criticize the government interpretation of Art. 9 as being excessively complicated and inconsistent with international law.

Part I, section 2

The second section of Part I proceeds to review in more detail the changes to the international security environment. The upshot of this review is that there are more, and more diverse, threats to Japan. As such, it is concluded that it is necessary for Japan to not only maintain an effective defence organization for its own security, but in addition to also maintain the effectiveness of the U.S.-Japan alliance, and to make efforts to contribute to the security of the international society as a whole. Moreover, the legal base of Japan’s national security policy must be viewed from that perspective.

Part I, section 3

In section three of Part I, the report reviews the government’s interpretation of Art. 9. It begins, before getting to the interpretation, by emphasizing that there are differing interpretations and political conflicts over Art. 9. It then provides a fairly straightforward review of the government interpretation, being that Art. 9(1) does not deny Japan’s right to individual self-defence, or prohibit the use of the minimum force necessary to defend its territorial and political integrity; and as such, Art. 9(2) does not prohibit the maintenance of the minimum defence capability necessary for self-defence, and thus the SDF does not constitute the “war potential” prohibited by Art. 9(2).

On the other hand, the government has provided strict conditions for the exercise of force for self-defence, being i) there has been a sudden and unjust aggression; ii) there are no other means available to prevent the aggression; and iii) the use of force ought to be the minimum necessary for defence in the circumstances. Thus, it flows from this that collective self-defence, and collective security operations under authority, are prohibited by Art. 9(1).

Even participation in peacekeeping operations is limited to circumstances, and by specific conditions, such that there can be no possibility of using force other than for personal self-defence of SDF personnel. And logistical and rear-area support activity that is provided for coalition forces in situations such as Iraq and Afghanistan, must be carried out in such a way that they do not become integral to the use of force by such coalition forces, for such activity will constitute a violation of Art. 9(1), even if Japanese forces are not themselves using force. While this interpretation is thus described in the report, there is no analysis of the basis for it, or how precisely it relates to the text, nor any exploration of its origins and history.

Part I, section 4

Section four of Part I then examines the factors that militate in favour of reinterpretation of Art. 9. Once again there is a review of the changing threats and dangers in the international security environment, ranging from the proliferation of WMD and missile technology, the spread of terrorism, in addition to the traditional threats posed by nation states.

It then outlines the fundamental objectives of Japan’s national security strategy to meets such threats, being i) to maintain an effective defence capability in order to deter direct threats to Japan, and in the event they materialize, limit the harm to a minimum; ii) to continue to maintain the effectiveness of the U.S.-Japan alliance, since Japan cannot provide for its own security alone in the current threat environment; and iii) to contribute to the international peace and security efforts of the international society, since improvement of the international security environment as a whole help enhance Japan’s own security.

The report then proceeds to question whether the current legal foundation for national security policy, and particularly the government interpretation of Art. 9, is sufficient for the purposes of developing and executing a national security policy based on the foregoing strategy. Can Japan effectively support the U.S.-Japan alliance, it asks, if it cannot exercise the right of collective self-defence? Can Japan effectively contribute to UN operations, if it cannot use force for anything other than the repulsion of a sudden and unjust aggression on Japan itself?

After some further discussion of the four specified problems, (which are addressed in detail in the next part of the report), the panel concludes with the assertion that the analysis of these problems do not lead to the recommendation of a legally unreasonable re-interpretation of the Constitution merely to meet the exigencies of new circumstances. On the contrary, the panel claims that the interpretation being submitted is based on consistent logic and is in accord with international law. Moreover, it is the continued adherence to the government interpretation, with its inherent irrational elements, that is unreasonable.

Part II

In Part II, the panel examined the four specific problems. There is no need to review that discussion in any detail, as it is not that germane to the analysis that I will engage in the later assessment of the report. The four problems, however, as provided to the panel by Prime Minister Abe, were whether i) Japanese MSDF vessals in international waters could respond with force to assist U.S. forces in the proximity were they to come under attack; ii) Japan could use anti-missile defence weapons to strike an in-flight ballistic missile targeting the U.S.; iii) whether and in what circumstances the SDF could use weapons in UN peace keeping operations; and iv) to what extent could Japanese forces provide rear-area support for other countries involved in UN collective security operations.

With respect to each problem, the panel examines the legal constraints on the activity in question, pursuant to Art. 9, and then posits options for resolving the problem, in accordance with the aspects of the overall re-interpretation recommendations that are more fully addressed in the next Part.

To be continued… with reviews of Parts III and IV.

In June of this year the “Panel for the Reconstruction of the National Security Legal Foundation”, known informally as the Yanai Committee after the name of its chairman, filed its report with the government of Japan. The report called for a re-interpretation of Art. 9 of the Constitution so as to permit Japanese participation in collective self-defence and collective security operations. Both are currently understood to be prohibited by Art. 9.

Prime Minister Fukuda showed no interest in the report or the issues, and the report has received little public attention. With a new Prime Minister soon to be elected, and with emerging evidence that the Yanai Report is having more significant influence within the bureaucracy, it warrants more careful attention.

Over the next little while I will be posting entries here providing a detailed examination of the report. Since the report is not yet available in English (the original is available here), I will first provide an overview of the substance of those aspects of the report that I think are at least important for the analysis I wish to engage in. The substance should be reviewed in two posts, following which I will provide a segment with an analysis of the report – first criticizing its overall approach, and focusing on some of the interpretive errors that, in my view, the panel made; and then examining some of the limitations that it recommended be placed on the exercise of force, that may be useful for considerations of what a nuanced amendment might look like.

Background

Prime Minister Abe convened a “panel of experts” back in April 2007, to consider whether it was necessary to “revise the current interpretation of the Constitution”, in order to allow Japan to participate to a greater extent in international security activity. In particular, the panel was to consider four specific scenarios that highlighted the ramifications of the constitutional prohibition on collective self-defence and collective security operations.

The panel was comprised of thirteen people, mostly academics specializing in political science, foreign relations, and defence studies, and former government officals from the Ministry of Foreign Affairs and the Defence Agency. There was only one constitutional scholar among them, and only three legal specialists in total. The media was critical of the panel when it was announced for being a group with a public record of being hawkish on national security issues and of being critical of the constitutional constraints on Japan’s defence policy.

I wrote at the time (The Case Against “Revising Interpretations” of the Japanese Constitution ) that the exercise of using an extra-constitutional body to advance a “revision” of the interpretation of the Constitution, was illegitimate on a number of levels, the most important being that it was an end-run around the amendment provisions in the Constitution. The Report tends to confirm those concerns.

The Report

The report is a 32 page document, divided into four parts, each further divided into four sections. Part I is on the “The National Security Environment of Japan and the Need for a Reconstruction of the Legal Foundation; Part II is “The Panel’s Opinions Regarding Each of the 4 Types of National Security Problem”; Part III is “The Panel’s Fundamental Understanding of Art. 9 of the Constitution”; and Part IV is “Recommendations Regarding the 4 Types of National Security Problem and Related Matters.”

The approach of the panel to the issue is explained by Chairman Yanai Shunji in the forward to the report (Yanai himself is a former diplomat and ambassador to the U.S., now a professor at Chuō University, and a judge on the International Tribunal for the Law of the Sea). The emphasis of the Forward is on the changes to the international security environment and the increasing threats to Japanese national security, and how the defence posture of Japan has been constrained because debate in Japan has been straight-jacketed by the application of Art. 9.

He argues that the interpretation of Art. 9 must, therefore, be reconsidered “with an open mind, without losing sight of the meaning of peace and the objectives of security, and without being trapped by clinging to precedent and suspending our power of reason”. In short, the legal foundation of national security policy, of which Art. 9 forms the most fundamental part, must be reformed in order to develop a security policy that is more responsive to the changes in the international security environment.

To be continued….the next post will provide more detail on Parts I and II of the Report.

Developments:

Japan’s Diet (legislature) passed a new Basic Law on Space on May 21 (the bill can be found in the index on-line here, and in pdf here ), which will permit Japan for the first time to use space for the purposes of contributing to national security. This constituted a marked departure from an almost 40 year old policy of strict non-military use of outer space.

While the passing of the law received some passing coverage in the Western press , the significance of this development remains largely unexplored. The move is important in two respects - the first being its place in a systematic widening of the scope of Japanese military activity notwithstanding constitutional constraints, and the second is the extent to which it may contribute to an escalation in the militarization of space among East Asian countries. This article focuses on the first aspect.

Background:

To put all of this into context one has to begin with the Japanese constitutional constraints on the use of force and maintenance of armaments. Article 9 of the 1947 Constitution provides that Japan forever renounces war and the threat or use of armed force for the purposes of settling international disputes. It also, in Art. 9(2), declares that it shall never maintain land, sea, or air forces or any other war potential, and that the rights of belligerency will not be recognized.

The government’s own long-standing interpretation of these provisions is that while Japan maintains the right of self-defence under international law, and may maintain the minimum military forces necessary to exercise this right of self-defence, it may not use force in any act of aggression, nor may it participate in collective self-defence operations or in collective security operations under the authority of the U.N. Security Council. Moreover, the use of force in combat or other military contexts will not enjoy the immunity from the operation of domestic or other international law normally extended to belligerents under the law of armed conflict.

Article 9 has effectively constrained both the development and operation of Japanese foreign policy, as well as, to a lesser extent, the development of its military. While it currently has sophisticated military forces , with a defence budget that ranks it among the top five in the world (depending on the source and method of calculation ), internal political constraints driven by Article 9 have ensured that its forces are largely defensive in nature (as difficult as it is to make that distinction). For instance, Japan has no long-range bombers, ballistic missile capability, or aircraft carriers, to mention a few of the more important systems of power projection. Even within the U.S.-Japan Security Treaty, last renewed in 1960, Japan is under no obligation to defend U.S. forces or U.S. interests outside of Japanese territory, thus preserving the prohibition on collective self-defence.

In 1969, in accordance with the understanding of Article 9, and shortly before Japan ratified the U.N. Treaty on the Principles Governing Activities in Outer Space (the Space Treaty ), the Diet passed a resolution limiting Japan’s use of space to “peaceful purposes.” This in turn was interpreted to mean strictly non-military purposes in order to comply with Article 9. The resolution has constrained Japanese use of space in a number of ways ever since. The government has been precluded from launching satellites for the purpose of defence, which in turn has left Japan reliant upon the U.S. and others for satellite-based intelligence. It also precluded the development and sale of military-grade space technology to other countries, all of which left Japan’s aerospace industry in a relatively underdeveloped state.

A number of events in the 1990s shook Japan’s sense of security and has led to a re-thinking of security issues in a number of ways. In particular, the revelation in 1993 that North Korea was pursuing a nuclear weapons capability, followed by the North Korean firing of a Taepodong 2 missile over Japan in 1998, had a profound impact on Japanese threat perception. In 1997, Japan and the U.S. negotiated new guidelines to govern the alliance under the U.S. Japan Security Treaty (the 1997 Guidelines ), which extended the sphere within which the Japanese Self-Defence Forces (the SDF) might be required to operate in cooperation with U.S. forces.

In the post-9/11 world, Japan has come under increasing pressure from the U.S. to contribute further to American security interests. This has included strong pressure on Japan to participate in U.S. ballistic missile defence (BMD) systems. After considerable debate and in the face of some significant internal criticism, the Japanese government agreed to participate in the development of the U.S. BMD shield, and is in the process of developing a two tiered system, comprising of a sea-based SM-3 atmospheric defence system, and a land-based PAC-3 patriot missile lower level defence system. Japan has successfully tested its SM-3system in the shooting down of a ballistic missile in space in December, 2007 .

Discussion

The current move provides authority for the use of outer space for the purposes of national security, and is yet another step in what may be seen as a steady erosion of the constraints on the scope and nature of Japanese military activity. Japan sent the SDF abroad for the first time to support “anti-terrorism” operations in Afghanistan in 2002. This was followed by an unprecedented deployment of SDF forces to provide support in a combat zone, with the dispatch of 400 troops and three planes to Iraq in 2003. Japan even launched military spy satellites in 2003, notwithstanding the 1969 Resolution, to monitor North Korean activities.

All of this has led to considerable debate within the country over the extent to which these developments are contrary to Article 9. One question that received particular attention within the BMD debate, was whether the Japanese interception of a ballistic missile that was targeting the U.S. or U.S. forces not within Japanese territory, would be a violation of the prohibition on the use of force for the purposes of collective self-defence. Similarly, after yet another series of North Korean missile tests in 2006, there was discussion of whether the right of self-defence extended to pre-emptive strikes against missile sites poised for an attack on Japan. There was even talk of re-interpreting the Constitution, and all these scenarios, including that of “reinterpreting” the Constitution are inconsistent with the provisions of the Constitution itself.

The new Basic Law on Space, while asserting the requirement to comply with the Constitution, as well as the peaceful-use provisions in the U.N. Space Treaty (Art. IV of the Space Treaty), clearly provides that the use of space may be used to contribute to the national security of Japan (Art. III of the Basic Law). Moreover, the Basic Law on Space provides for the development of a space strategy and the establishment of institutional oversight of the program centered in the prime minister’s office.

This needs to be considered in the context of the language of the 1997 Guidelines, which specified that U.S.-Japanese cooperation could extend to “situations surrounding Japan”, a term that was explained at the time as being conceptual rather than geographic. In other words, the scope for Japanese support of U.S. military activity, and the area in which it was authorized to act for its own defence, was ambiguously and circularly defined as being anywhere in which there were circumstances that might trigger Japanese security requirements. Now, with the Basic Law on Space, the “situations surrounding Japan” for such purposes has been extended to outer space.

In addition to North Korea’s attempts in July 2006 to test a Taepodong 2 missile, with a range that could reach the continental U.S., the Chinese recently surprised the world last year by testing its own satellite-killer capabilities. Now, with Japan opening the door to developing its own military space program, the potential for an escalating arms race in space among the East Asian neighbors has become all the more real.

The Supreme Court of Canada handed down a judgment relating to detainees in Guantanamo Bay on May 23, holding that the one Canadian detained there may rely upon the Canadian Charter of Rights and Freedoms to obtain some due process protection from the Canadian government.

Overview

The decision has already been reviewed briefly from the perspective of Canadian constitutional law on the University of Toronto and Osgoode Hall law school blogs, so I will not repeat that process here. But the decision has importance from the perspective of international law, and the relationship between international and constitutional law.

I would suggest that the judgment refutes the arguments, voiced most recently by several scholars at the ASIL conference in April, that there are circumstances in the so-called “war on terror” in general, and the treatment of detainees in particular, in which neither constitutional law or international law (whether human rights or humanitarian law) ought to govern the conduct and procedures of the detaining forces.

The Supreme Court held that it is precisely when the agents of the Canadian government participate in conduct and circumstances that constitute violations of international law, that the application of the Charter will be triggered and its protections available to detainees (or at least Canadian detainees - more on that distinction below).

Background

Omar Khadr was 15 years old when he was captured by U.S. forces in Afghanistan in July, 2002. He was one of the few detainees who has been arraigned and who is actually moving towards a trial before the much-disputed Military Commissions in Guantanamo Bay. He has been charged with murder and with conspiracy to commit other acts of murder and terrorism. The murder charge arises from the death of a U.S. soldier during the skirmish in which he was captured.

The Supreme Court decision was in respect of an application by Khadr for full disclosure of all information in the hands of the Canadian government that may be relevant to his case. He had been interviewed and interrogated by officials of the Canadian government in Guantanamo Bay, and the evidence reflected that the Canadian government had shared some of the information so obtained with the U.S.

The importance of disclosure to his case before the Military Commissions is difficult to overstate, as detainees obtain only very limited disclosure from the prosecution. After the U.S. Supreme Court held that the procedures of the Military Commissions were unlawful in its decision in Hamdan v. Rumsfled (2006), Congress promptly passed the Military Commissions Act to provide the legislative authority for most of those same procedures. They included the admissibility of evidence obtained through “coercion”, denying the accused access (even at the hearing itself) to classified evidence, and even excluding the accused from the hearing in certain circumstances. The disclosure obligations on the prosecution are very limited.

There has yet to be a full trial before the Military Commissions, but the conduct of the Combat Status Review Tribunals (CSRT), which were created to determine whether detainees met the definition of “unlawful combatant” for the purpose of prosecution, have been analyzed by a team at Seaton Hall Law School (report here). The denial of the most fundamental rights expected in administrative and judicial proceedings was found to be extreme, and is suggestive of the entire Military Commission process.

Indeed, the D.C. Circuit Court held in Bismillah v. Gates (2007), that the lack of disclosure by the government in judicial review proceedings of CSRT decisions was unconstitutional. But there is little relief in sight with respect to the lack of due process in the Military Commission hearings themselves (the other significant Guantanamo case before the U.S. Supreme Court, Boumediene v. Bush, in which Khadr is also a party, relates primarily to the legality of the provisions of the Military Commissions Act that purported to strip the federal courts of habeus corpus jurisdiction with respect to detainees). Thus any disclosure Khadr can get from the Canadian government will be helpful for his case.

The Decision

Khadr sought full disclosure from the Canadian government, on the grounds that section 7 of the Charter governed his relationship with the Canadian government. Section 7 of the Charter, which provides for the “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”, was interpreted in the seminal case of R. v. Stinchcombe (1991), as requiring the government to provide the accused in a criminal proceeding, whose liberty interests are thus at stake, with full disclosure of all material relevant to the issues in the case. The government argued that the Charter did not apply to the operations of government officials operating abroad, and that Stinchcombe was thus irrelevant.

In deciding the case in Khadr’s favour, the Supreme Court expanded an exception it had created in R. v. Hape (2007), the case which revised the general principles for Charter application to the conduct of government officials abroad. The basic rule is that the Charter will not apply, due to the deference owed to the laws of the foreign jurisdiction in which the Canadian agents are operating. Such deference, manifested by refraining from any attempt to extend the operation of one’s own laws to conduct within a foreign jurisdiction, is required by the principle of comity in international law. But the Court held in Khadr that where the conduct in which the Canadian agents are participating violates international law (and more specifically Canada’s international law obligations), then the basis for deference is negated, and the Charter will apply to the extent of the participation.

Rather than engage in an independent inquiry into the extent to which conduct in Guantanamo Bay violated international law, the Court simply relied upon the decisions of the Supreme Court of the United States in Rasul v. Bush (2004) and Hamdan v. Rumsfeld(2006) as the basis for finding that the deprivation of habeus corpus, and the procedures established for the operations of military commissions, were in violation of international law and illegal under U.S. law during the period in which Canadian agents interrogated Khadr in Guantanamo.

As such, the Court held that “the regime providing for the detention and trial of Mr. Khadr at the time of the [Canadian interviews] constituted a clear violation of fundamental human rights protected by international law.” (para. 24) Canadian agents participated in that activity, which would have clearly been a violation of Khadr’s Charter rights had it occurred in Canada, and the violation of international law by the U.S. negated the deference that would otherwise prevent application of the Charter.

The crux of Canadian participation in the process was the obtaining information from Khadr and providing it to the U.S. Thus, the Court reasoned, the refusal to disclose the information related to those interviews was a breach of section 7 of the Charter, and Khadr’s remedy is to obtain disclosure of that information, subject to possible privilege claims (the remedy is significantly narrower than that sought, which was disclosure of all relevant information in the government’s possession – it is entirely unclear to me why the order would not at least also include any information that the government received from the U.S. in the course of the interviews and information exchanges related thereto).

Significance

As indicated above, it seems to me that this decision refutes the arguments of some in the U.S. that the treatment of detainees in such places as Guantanamo, Afghanistan and Iraq, should not be subject to either the constitutional law of coalition countries, or international law. Moreover, as discussed elsewhere in these posts, the U.S. has undertaken efforts to ensure that detainees will not even have access to any protections afforded by the local legal system in Afghanistan either (and of course there is no other legal system available in Guantanamo), thus leaving them with virtually no legal protection whatsoever.

These arguments in essence suggest that constitutional law ought not to apply, since the nexus of citizenship, presence within the jurisdiction and so forth, do not exist to trigger its operation in respect of detainees. At the same time, since they are not lawful combatants in an international armed conflict, the laws of international humanitarian law should not apply. But since they are being detained in the “war on terror”, which is an armed conflict of a sort (or so the argument goes), international human rights law ought not to apply either. There is thus, according to these arguments, a legal black hole in which detainees can be afforded the most limited procedural protection and due process, entirely at the discretion of the detaining power.

The Supreme Court of Canada decision in this case, it seems to me, stands in stark contradiction to such arguments, with its holding that Canada’s constitutional protections and remedies will be applied by the Canadian courts precisely when it is determined that international law has been violated. In essence, rather than accepting the notion that these are circumstances in which no law will be deemed to apply, the Court has recognized what is effectively double coverage: international law is recognized as governing the treatment of detainees generally, and when it has been violated in circumstances in which agents of the Canadian government have participated, the Canadian Charter will also be applied to the extent of that participation.

As Sujit Choudhry notes in his initial discussion of the case (in the University of Toronto blog cited above), that will likely inform the Court’s pending analysis of Canada’s obligations to non-Canadian detainees captured by Canadian Forces in Afghanistan. The distinction there, of course, will be that the detainees are not Canadian, and the Court will not have U.S. precedents to rely on in assessing the question of Canadian participation in violations of international law. The issue of Canadian Forces’ compliance with the Geneva Conventions will be squarely before the Court, and it will be interesting to see whether the nationality of detainees will become a significant factor in the Charter analysis.

Thus, while there has been some early criticism of the decision (e.g. the Osgoode Hall blog noted above, which questions why the broader aspects of the government’s participation, and failure to act, in the Khadr case remains largely unexamined), from the perspective of the relationship between international and constitutional law, particularly in the context of the treatment of detainees in counter-terrorism efforts, the case may be viewed as a positive step, and one more blow against the black hole paradigm.