SDF's operation in the Indian Ocean
October 22, 2007
<Professor at Ryukoku University, Japan Institution of
Constitutional Law Visiting Researcher>
Shinzo Abe, who became Prime Minister in September 2006
aiming for "beautiful Japan"and "departure
from the post-war regime,"announced his resignation a
year later on September 12, only two days after making a general-policy
speech at the opening of an extraordinary session of the Diet.
Yasuo Fukuda took him over after this unprecedented event.
Abe was pushed out because his Liberal Democratic Party had
been defeated and lost its majority in the House of Councilors
in the election in July. He received the final blow when he
noticed that it was impossible to extend the anti-terrorism
law which expires on November 1, for the motion would surely
be voted down in the House of Councilors. Prime Minister Fukuda
wants to negotiate with the opposition parties for enacting
a new law by revising the anti-terrorism law, while the Democratic
Party and other opposition members are basically against such
a new law. Below is my opinion regarding this issue on which
the Diet debate is being focused.
The anti-terrorism law came into force on November 2, 2001
after the 9.11 simultaneous multiple terrorism. The US government
declared that Osama bin Laden was the principal offender,
and the US forces attacked Afghanistan, ruled by the Taliban
which sheltered him. The US explained that the military operation
was an exercise of its right of self-defense, and asked Japan
for logistic support. However, it was doubtful whether the
9.11 terrorism comes under the classification of "armed
attack,"against which the Chapter 51 of the Charter of
the United Nations authorizes the inherent right of self-defense.
Some questioned the US right to attack Afghanistan because
the Taliban government was not proved to be the attackers
in the 9.11 tragedy.
Japan stated in the anti-terrorism law that it will carry
out "cooperation and assistance"or "measures
including supply of goods, services and facilities to foreign
forces,"though the US attack against Afghanistan was
questionable in the context of the international law. Even
though the anti-terrorism law says that "such measures
should not be in the realm of threat or use of military power"(Article
2, Clause 2) and that such measures are operated "off
military zone"(Article 2, Clause 2), it approves the
use of weapons (Article 12). Doesn't "use of weapons"fit
in "use of force"which is prohibited by the Constitution?
There have not been clear enough explanations on that point.
The Japanese government has provided fuel to the US replenishment
ships and other ships in the Indian Ocean, in accordance with
that law, while Japanese citizens have not been informed of
the realities of Japan's fueling service. For example, the
Defense Ministry announced in July 2007 that they had destroyed,
by mistake, the logbook or the record of navigation from July
to November 2003 of Towada, one of Japan's replenishment ships
taking part in the fueling in the Indian Ocean. The ministry's
rules provide that such document should be stored for 4 or
5 years. And some citizens had officially requested for the
release of the document. It is hard to believe that such a
key document is lost by mistake. Punishing the staff in charge
can not satisfy the people concerned.
Furthermore, our government has revised the amount of fuel
which the SDF gave to the US aircraft-carrier Kitty Hawk.
When the Diet discussed the motion to prolong the anti-terrorism
law, whose original term was 2 years, Japanese government
announced that the SDF gave 200 thousand gallons to a replenishment
ship which fueled Kitty Hawk in February 2003. The amount
was recently corrected to 800 thousand gallons. The government
illogically explained that all the oil had been consumed only
for terrorism prevention activities at sea. Is it normal for
an aircraft carrier to work for security at sea? Kitty Hawk
is known to have sailed into the Persian Gulf to take part
in the attack against Iraq. Do we still have to believe that
all the oil was consumed for operation at sea?
It may still not be constitutional even if the oil from the
SDF was used in the way the Japanese government reports, solely
for anti-terrorist activities at sea. The government states
that fueling is not the "use of force"which is prohibited
by the Constitution. However, the SDF's fueling is logistics
for the US military operation. It has an indispensable role
in the military activities. Therefore, the US government demands
Japan to continue it. Even though the Japanese government
separates fueling and the use of force, nobody can deny that
they are closely related. I believe that our Constitution's
principle of peace forbids the activities that are closely
related to the use of force. That is how we should read the
Article 9 which says that we "renounce the threat or
use of force as means of settling international disputes.
The government schedules to submit a new bill to replace the
current anti-terrorism law. All I mentioned above in this
essay is basically adaptable to the proposed bill, though
the new law would allow only supply of fuel and water in the
Indian Ocean, including the Persian Gulf, while the conventional
anti-terrorism law does not mention the locality and allows
cooperative and supportive activities in general. The anxieties
I discussed in this essay remains even if the new law permits
water and fuel supply in limited zones. What would become
worse is that the Diet's approval would not be necessary for
such fueling operation if the bill would be approved. The
ruling coalition explains that the Diet's approval for the
bill will mean that the fueling operations are also approved.
Such an excuse does not satisfy us. The Diet's approval for
the bill would not mean that the Diet agrees to whatever fueling
activities by the SDF. The bill is even more questionable
than the existing anti-terrorism law which stipulates ex post
facto approval, in that it may further deviate from the principles
of the Constitution by weakening the civilian control by the
We also have to note that the Democratic Party leader Ichiro
Ozawa regards that it is constitutional for the SDF to take
part in the International Security Assistance Force which
is authorized by the UN Security Council even if the activities
comprise the use of force, while he opposes the anti-terrorism
law because he believes that assistance to the US military
operation is unconstitutional. Ozawa explains that the UN
operation for the maintenance of peace in the international
society belongs to a completely different category from one
nation's self-defense, and that such UN operation, outside
the framework of national self-defense, is not what the Japanese
Constitution prohibits. Ozawa's remarks sound even more dangerous
than the stance of the government. Japanese government maintained
that Japan can not take part in UN operation in case it comprises
the use of force. It may not be possible to assert that the
use of force under the UN auspices is permitted by the Japanese
Constitution whose Preamble and Article 9 completely denies
the use of force as means of settling international disputes.
It goes without saying that the Japanese Constitution does
not lay down one-nation pacifism. Its Preamble states "We
recognize that all peoples of the world have the right to
live in peace, free from fear and want."This phrase is
applicable to the efforts to remove terrorism from the international
society, because discrimination and poverty often breed terrorism.
The situations in Iraq and Afghanistan demonstrate incapability
of the use of force to eliminate such causes of terrorism.
What we need to do now is to try to cut the chain reaction
of violence, by continuing ordinary international assistance
in non-military fields and promoting intercultural disicourses.
Editor's Note by the secretariat of Japan Institute of
The Self Defence Forces' fuelling operation in the Indian
Ocean ceased when the anti-terrorism law expired. However,the
Diet later passed the new law, and the SDF's replenishment
ships left Japan for the Indian Ocean again in January 2008.
February ,11, 2008