International Law – Page 10

Speaking with Yanai in The Hague

April 24, 2021March 25, 2016 by Craig Martin

Speaking in February on a panel with Judge Shunji Yanai, on the constitutional and international law issues arising from the Japanese government’s “reinterpretation” of the war-renouncing Article 9 of the Constitution. Shunji Yanai, who is a judge on the International Tribunal for the Law of the Sea, was the chairman of the Advisory Panel on the Reconstruction for the Legal Basis of Security, which made recommendations to the Japanese government on how and why to “reinterpret” Article 9. The one-day conference was held at the Asser Institute in The Hague, with Judge Hisashi Owada of the International Court of Justice giving the keynote address.

The Torture Photos and U.S. Double Standards on Freedom of Speech

April 24, 2021January 26, 2015 by Craig Martin

(Cross-posted from Tubler.com, Jan. 25, 2015).

Jameel Jaffer had an excellent post on Just Security earlier this week, examining the apparent inconsistency in U.S. policy on freedom of speech. On the one hand, the U.S. government argued against self-censorship in response to threatened violence, in the context of Charlie Hebdo, and Sony’s distribution of the “The Interview”. On the other hand, the U.S. government was in Federal Court this week resisting requests that photographic evidence of U.S. detainee abuse and torture be made public.

The argument of the government is that disclosure of the pictures would make them available for use in propaganda, and would likely lead to violent reactions. In essence, the government wants to suppress information to prevent possible violent reprisals. Jameel Jaffer dismisses this argument well:

This is not a good argument for the suppression of the photographs. The same kind of argument could as easily have been made with respect to the Abu Ghraib photos, the Rodney King video, or the Eric Garner video. It could as easily have been made with respect to the Senate’s torture report—and, in fact, it was. And it’s not just that the argument gives those who threaten violence a veto over political debate; it gives the government a veto, too. To accept the argument, at least in the absence of a specific, credible threat directed against specific people, is to give the government far-reaching power to suppress evidence of its own misconduct. And the worse the misconduct, the stronger would be the government’s argument for suppression.

The Morality of Opposing Release of GITMO Detainees

April 24, 2021January 16, 2015 by Craig Martin

(Cross-posted on Tumblr, Jan. 15, 2015)

It was announced this week that a number of Republicans, Senator McCain prominent among them, are seeking to pass legislation to prohibit further releases. The Paris attack last week is being used as a pretext. The specter of detainees “returning to the battlefield” and engaging in new acts of terrorism is the primary argument.

It was announced just today that five more detainees were released from Guantanamo Bay, some 6 years after they were cleared for release by an inter-agency review, and as much as 13 years after they were initially detained. The majority of detainees still at Guantanamo Bay are not terrorists affiliated with al-Qaeda or any other terrorist organization, and of course have not been charged with any crime. But Republicans want to ensure their continued and indefinite detention.

Re-Examining the ‘Myths’ About Japan’s Collective Self-Defense Change

April 24, 2021December 11, 2014 by Craig Martin

(Co-authored with Bryce Wakefield – published in The Asia-Pacific Journal: Japan Focus, Sept. 8, 2014)

In a recent article in the Diplomat, Michael Green and Jeffrey Hornung claimed that critics of the Abe government’s “reinterpretation” of Japan’s constitution, to end the ban on the use of force for the purposes of collective self-defense, were “basing their opposition on myths about the change.” This allegation that resistance to the “reinterpretation” of Article 9 is based on nothing but “myths” is increasingly heard, and so it is worth examining their arguments, and the so-called myths that they purport to dismiss.

Green and Hornung argued that the changes to be made through the “reinterpretation” were actually slight and that the immediate implications were far less problematic than alleged. There is a grain of truth to this as it relates to imminent strategic consequences, but it also misses the essential point. Yes, at least in the short term, changes to the roles and the missions of the nation’s Self Defense Forces resulting from “reinterpretation” will probably be modest; and yes, the changes will not likely lead to militarism, regional adventurism, or various other scenarios that the article examines and dismisses. But this focus on the intended policy shifts misses the far more significant issues raised both by the unconstitutional nature of the move and the possible longer-term and profound systemic ramifications of the “reinterpretation.”

The Hyuga – DDH 16 – Hyuga class helicopter destroyer (credit-World Politics News Review)

It is precisely because the immediate strategic implications of the Abe Cabinet’s announcement will probably be relatively modest that the implications for constitutional practice in Japan should be the focus of the debate. Perhaps the changing strategic environment in Asia will require Japan to consider relaxing some of the constraints imposed by Article 9. However, so fundamental a change to the nation’s constitution should only come after broad debate and pursuant to formal amendment procedures as provided for in the constitution. As explained below, the so-called “reinterpretation” process has in fact weakened constitutionalism, the rule of law, and fundamental principles of democracy in Japan, an argument that Green and Hornung, and many other defenders of the “reinterpretation”, never seriously address. In short, the harm is to the Constitution, and so focus on strategy is no answer.

Let us re-examine some of the “myths” that Green and Hornung so quickly dismiss.