Piracy and the Constitution

(Initially published in the Japan Times, March 26, 2009)

Once again the issue of Japanese contributions to international security efforts is the subject of tortured debate. And once again the proposed government policy, and aspects of the debate itself, reveals fundamental misunderstanding of the relationship between Article 9 of the Constitution and the relevant principles of international law.

This time, the issue relates to maritime piracy off the coast of Somalia, and the proposed deployment of Japanese naval vessels to the area. Predictably, the issue has triggered debate over the effect of the war-renouncing provision of the Constitution. A careful analysis, however, would suggest that the Article 9 prohibition on the use of force would not apply to the deployment of naval forces, or their use of weapons, to protect shipping from pirates in international waters.

Yet, it is clear that the government policy is being formulated under the shadow of Article 9. While the ships are initially being deployed under the authority of Article 82 of the Self-Defense Forces Law, the government has drafted and submitted to the Diet a permanent anti-piracy law, and it is around this bill that debate has focused. … Read more…

The “Yanai Report” on Article 9, Part 4

The next segment of my analysis of the Yanai Report is long overdue. The final two posts were supposed to be the critical analysis of the report, from both a constitutional and international law perspective. The constitutional criticism was briefly explained in my Op-Ed piece in the Japan Times, which can be found here. Before posting a more developed version of that, together with the international law critique, I am posting below the Japanese translation of the Op-Ed piece. It was declined by the Asahi Shinbun (ostensibly because it was too narrow in focussing exclusively on one fundamental flaw in the report), but I thought that it should be made available somewhere for wider consumption, since there has been little debate on this aspect of the report in the Japanese media. The eloquent translation is thanks to Prof. Norimoto Setsuko.

第9条の新解釈を押し付けようとすることの致命的な欠陥

一般に柳井報告として知られている「安全保障の法的基盤の再構築に関する懇談会」報告は、日本が集団的自衛および集団安全保障活動に参加することを可能にするためには、日本国憲法第9条の再解釈が必要であると主張している。現在は、いずれの活動も、第9条第1項で禁止されていると解されている。しかし、この報告書は、懇談会の分析の正当性を根底から覆す根本的欠陥を明らかにしている。

懇談会は20074月に、安倍晋三内閣(当時)によって、憲法の「再解釈」の必要性を検討するために設置された。懇談会は、13人の著名な学者、元外交官、その大部分は国際関係、政治、国家安全保障の専門家である官僚たちで構成されたていた。懇談会のメンバーの中に憲法学者は一人しかいなかった。懇談会は、憲法改正に賛成していることが公に知られているタカ派によって占められていると批判された。座長の柳井俊二は、元アメリカ大使であり、現在は中央大学教授であるが、6月に内閣に懇談会報告を提出した。

当時の福田康夫首相は、この報告書すなわち憲法の「再解釈」にはほとんど興味を示さなかった。しかし麻生首相は、第9条は「再解釈」されなければならないと、国連で繰り返し述べた。さらに柳井報告書が、官僚たちの間で歓迎され、政府内において次第に影響力を行使しそうな証拠がある。したがってこの報告書は、もっと公に吟味の対象とならなければならないのである。Read more…

U.S. Missile Strikes in Somalia and the Laws of War

As was reported in the New York Times and elsewhere on May 2, the U.S. fired at least four Tomahawk cruise missiles into Somalia, striking a compound in the town of Dusa Marreb, killing at least ten people. One of them, the primary target of the attack, was an alleged Al Qaeda operative named Aden Hashi Ayro, who was suspected of having killed a BBC journalist among other things. He was reported to be a notorious terrorist.

Several blog posts have noted the lack of mainstream discussion on the legality of this missile strike. Prof. Marty Lederman, writing in Slate, suggested that few seem to care whether it was legal. But even among the bloggers, the majority of posts I have seen, as in the case of Prof. Lederman’s, have focused primarily on the constitutional issues of whether the President had sufficient authority, explicit or otherwise, to launch such attacks. There has been some discussion of the jus in bello issues, such as whether the strikes met the criteria of military necessity and proportionality, given the apparent collateral damage. But few have addressed the jus ad bellum issues – was this missile strike, and those prior to it (there have been several such attacks on Somalia since 2006) lawful under the international laws on the use of armed force?

Developments in jus ad bellum?

Prof. Jullian Ku was one of few that has raised the issue, on Opinio Juris, but he merely floated the idea that since such strikes have met with little objection, they may be evidence that the U.S. is operating in a legal paradigm that approximates that of war. Implicit in this is the proposition that there have been developments in international law on the use of force since 9/11 that permit one to wage war on organizations, and which give the global “war on terror” a legal foundation that would permit such strikes against Al Qaeda operatives at large in a “failed state”.

As I commented on his post over at Opinio Juris, I question whether the fact that there has been little formal objection to the strike can be said to support the inference that the strikes were therefore lawful or justifiable under international law, or that it reflects developments in international law that permit such strikes. … Read more…

New U.S. Legal Rationales for Torture – A Comparison with Israel

There is new fodder for the tortured torture debate in the U.S. New evidence is emerging that the government views secret ex ante determinations, presumably by the government itself, of whether harsh treatment of detainees may be justified by reason of necessity. It is useful to compare this position with the 1995 judgment of the Supreme Court of Israel, in which the Court rejected government arguments that it could find ex ante authority for harsher interrogation techniques in the principle of necessity.

An article in The New York Times on Sunday described how recent letters to Congress from the Department of Justice (DoJ) explain that the government reserves the right to decide on a case-by-case basis what interrogation methods would violate international law standards against mistreatment of detainees. Specifically, the letters from the DoJ state that where harsher interrogation measures are “undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse” then such measures could be determined to be not “outrageous” or otherwise in violation of international standards. … Read more…