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Essay and Opinion

SDF's operation in the Indian Ocean

October 22, 2007

Prof.Toshihiro Yamauchi
<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 Diet.
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 Constitutional Law.

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