The Legal Issues of Firing on North Korea’s “Rocket”

(Initially published in JapanInc.com, April 3, 2009)

As tensions mount and there is increasing talk of shooting down the “debris” from a pending North Korean rocket launch, there has been little discussion of what would happen if Japan shot down the rocket instead. While there is great public support for action, there should be some pause to consider the constitutional and legal issues of Japan’s military deployment in these circumstances.

North Korea continues to prepare for the launch of a an experimental satellite delivery system, widely suspected of being a Taepodong 2 long-range ballistic missile, scheduled for some time between April 4-8. While North Korea touts the launch as an attempt to put a satellite in orbit, many view it as a missile test in violation of a 2006 U.N. Security Council resolution. North Korea has provided notice of the flight path, which will take the missile over Japan and into the middle of the Pacific.

It was announced on March 28, that Japan’s Minister of Defense had issued orders to the Self-Defense Forces (SDF) to deploy Ballistic Missile Defense (BMD) assets (the land-based Patriot Missile batteries or PAC-3, and the maritime Aegis Cruiser based SM-3 systems) to shoot down “any part of a North Korean rocket that might fall toward Japanese territory” (link). The order, authorized by the prime minister, is said to be based on Article 82 of the SDF Law.

The provision provides the authority to order the SDF to take measures to destroy missiles or other falling objects (other than aircraft), which are suspected to be heading for Japanese territory and which could cause serious harm to persons or property (link). Others have written about the considerable technical difficulty that the SDF might encounter in trying to intercept actual debris from the first stage of the rocket, which is supposed to separate and fall to earth prior to the rocket passing over Japanese territory (link). … Read more…

Rule of Law Under Fire in Japan

(Initially published in the Japan Times, May 3, 2008)

The government’s reactions to the Nagoya High Court’s April 17 decision that Japanese operations in Iraq are unconstitutional, raise profoundly disturbing questions about the rule of law and the democratic separation of powers in Japan.

Representatives of the government, and of the military, have made public statements contradicting the findings of the court, rejecting its conclusions, and dismissing the relevance and significance of its constitutional interpretation. The prime minister has stated that the judgment will have absolutely no impact on the government’s continued use of the military in Iraq.

This response by the executive branch of government to a judicial decision in a constitutional democracy is difficult to comprehend. It raises questions about the extent to which the rule of law is respected. It provokes concerns about the continued normative power of the Constitution. It creates serious doubts about the proper distribution of power among the three branches of government within the democratic structure of the state. … Read more…

Japanese MP Questions the Causes of 9/11

I only recently submbled upon this video of a segment of the debate in the Japanese Diet in January, in which Fujita Yukihisa, a member of the official opposition, interrogated the government on the validity of American claims that Al Qaeda was the perpetrator of the 9/11 attacks on New York and Washington.

To put this in context, there was intense debate in the Japanese Diet in January, 2008, over the renewal of the Anti-Terrorism Special Measures Law (ATSML), which was the authority for the Japanese Self-Defence Forces (SDF) to provide logistical and humanitarian support for ISAF operations in Afghanistan. The Democratic Party of Japan (DPJ) was opposed to a renewal of the law, in part because there was evidence that the SDF had provided support to U.S. forces involved in operations in Iraq. Ozawa Ichiro, leader of the DPJ, has also taken the position that operations in Afghanistan constitute collective self-defence operations not authorized by the U.N., and thus Japanese participation or support of such operations are a violation of Article 9 of the Constitution (Ozawa’s legal interpretation in this regard is flawed on a number of levels. My view on this can be found here).

It was in the context of those debates that Fujita mounted a focused interrogation on the legitimacy of the government’s characterization of 9/11. The English sub-titled video can be accessed below:

There are 8 episodes of this debate, and the other 7 can be found at here. While the questioning begins with some reasonable lines regarding the distinction between treating 9/11 as a criminal act or an act of war, and the sources of the government’s information regarding the Japanese fatalities in the attacks, by the third episode in the recordings here, Fujita begins presenting “evidence” from conspiracy theory sources to suggest that the damage to the Pentagon could not have been caused by a commercial airliner. It develops into a full-blown questioning of whether Al Qaeda was in fact the perpetrators of the attacks.

The DPJ had a range of very legitimate grounds upon which to object to the extension of the ATSML. It is hard to understand such recourse to conspiracy theories, which can only have undermined the credibility of their entire position on the law. The fundamental issue at stake was the constitutionality of Japan’s participation in collective self-defence and collective secuity operations in general, and the operations in Afghanistan in particular. Fringe theories about the causes of 9/11 are entirely beside the point and counter-productive.