international humanitarian law

LDP’s Dangerous Proposals for Amending Antiwar Article

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(Published in The Japan Times, June 6, 2012, and in Comparative Constitutions blog, June 11, 2012)

The Liberal Democratic Party (LDP) published its new draft constitutional amendment proposal in late April. The draft reflects a number of significant changes above and beyond those advanced in the proposal unveiled by the LDP in 2005. The proposal includes a complete overhaul of Article 9, the war renouncing provision of Japan’s so-called Peace Constitution. These changes to Article 9 are important, and on balance, dangerous. The nature of these proposed revisions, and how they would likely operate, deserve to be examined in some detail.

Before addressing the changes, it is helpful to recall the meaning of the current provision. Article 9 has two paragraphs, which contain three essential elements. Paragraph one provides that the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes. This represents an incorporation of international law principles on the use of force into the Japanese constitution, to constrain future governments of Japan from ever again dragging the nation into a disastrous war of aggression.

Paragraph two contains two clauses. The first provides that Japan will never maintain land, sea, and air forces, or any other war potential. This is a unique provision, purporting to prohibit the maintenance of any military forces, and was designed to reinforce the prohibition on the use of force by making such use of force impossible. The second clause of paragraph two, which provides that the rights of belligerency will not be recognized, is even more novel. This was the incorporation of principles of international humanitarian law relating to belligerency, to further ensure that as a matter of constitutional law Japanese forces would not enjoy the rights and privileges of combatants in armed conflict.

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Obama Administration Fails to Address Legality of Targeted Killing

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(Published in the Truman Doctrine blog, May, 2012)

In a speech at the Wilson Center on April 30, John Brennan, Assistant to the President on Homeland Security and Counterterrorism, addressed the subject of targeted killing. In particular, he set out to explain the legality, ethics, and operational wisdom of the policy of using drone-mounted missiles to kill suspected terrorists and insurgents in countries other than Afghanistan – that is countries with which the U.S. is not in an armed conflict. His speech was the most elaborate and open statement yet by the administration on the policy, which remains officially covert, but it provided little new analysis, and it did not respond to the most fundamental challenges to the policy.

The stated objective was a laudable one. He acknowledged that the U.S. policy of targeted killing has been the subject of significant international criticism. He referred to President Obama’s commitment, made in his Nobel Peace Prize acceptance speech, that the “United States of America must remain a standard bearer in the conduct of war,” and that “all nations, strong and weak alike, must adhere to standards that govern the use of force.” Moreover, Brennan stated that President Obama understands the need for greater transparency, and the requirement to explain to both the American people and the world the rationales for the policy.

Unfortunately, however, Brennan provided little new analysis to explain how the targeted killing adheres to the governing principles of international law. Harold Koh, legal counsel to the State Department, provided the basic legal justification two years ago – that is, that the U.S. is in an armed conflict with Al Qaeda, the Taliban and associated forces, such that members of those groups can be lawfully targeted as combatants in an armed conflict; and that the U.S. is entitled to use force in the exercise of its inherent right of self- defense.

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