Issue-oriented and thematic papers for PfL’s advocacy work, including statements, campaign materials, articles and updates on developing issues; and links to related resources and information
Asia Wide Campaign Against U.S. and Japanese Aggression and Domination of Asia (AWC)
JAPAN
June 1: Goro, AWC April 18: Kyodo staff reports April 18: The Asahi Shimbun
Court judged Japanese forces to Iraq unconstitutional
By ENATS GORO, AWC International Secretariat
2008 JUNE 1
This is a quite late dissemination of news, but we want to share it with you.
Last April 17, Japanese High Court in Nagoya concluded a historic decision that the government’s dispatch of SDF (Self Defense Forces of Japan) to Iraq is violating the Constitution.
The suit was filed by more than 3,000 citizen throughout Japan to stop the unconstitutional dispatch of SDF in Iraq. To counter the SDF dispatch overseas, which is really violation of the Constitution Article 9, citizen groups as well as concerned individuals filed cases against the government. In particular, as the government frequently dispatched SDF overseas since the Gulf war in 1990, people filed such case in many parts of Japan. However, they lost the cases and every court ruling avoided the constitutionality of the dispatch. This time, the high court ruled that the SDF’s operation in Iraq constitutes part of the U.S. and other forces’ operations, and thus, violates Iraq Special Measures Law as well as the Constitution Article 9 which prohibits ‘use of forces.’ Moreover, the ruling admitted people’s basic rights to live peacefully, for the first time.
Though the ruling did not agree to stop the SDF operation in Iraq, the decision was a big blow to the government, and people have got a big weapon to question the existence of SDF and to check on the operation.
“Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.” – Article 9 (Paragraph 1), The Constitution of Japan
June 1: Goro, AWC April 18: Kyodo staff reports April 18: The Asahi Shimbun
High court: ASDF mission to Iraq illegal
Airlifts will continue; no redress for plaintiffs
COMPILED FROM KYODO, STAFF REPORTS
2008 April 18
NAGOYA – The Air Self-Defense Force’s airlifting of multinational combat troops into the war zone of Baghdad is unconstitutional because it is an act integral to other countries’ use of force, the Nagoya High Court ruled in a suit Thursday.
Government officials said the ruling will not halt the ASDF deployment to Kuwait for the airlift mission because Tokyo considers that where the troops are being flown— Baghdad airport—is outside the combat zone.
The lawsuit was brought by some 1,100 citizens who wanted the dispatch of the Self-Defense Forces to Iraq to be suspended and the government to pay damages. But their demands were rejected, and the plaintiffs do not plan to appeal.
The ruling is technically a victory for the government because the court struck down the plaintiffs’ demands and the mission will continue. The state is thus not expected appeal the decision, which was the first to find an SDF dispatch unconstitutional, so the ruling will become final.
“The ASDF airlift activities (to and from Iraq) run counter to Article 9 of the Constitution” and the special law established in 2003 to allow the Self-Defense Forces to provide humanitarian support for Iraqi reconstruction efforts, presiding Judge Kunio Aoyama said. Article 9 renounces the use of force to resolve international disputes.
“The ASDF mission to airlift armed troops from multinational forces to Baghdad plays a part in the use of force by other countries,” thus it can be construed that Japan itself is using force, which is banned by the Constitution, the judge said. In modern warfare, the transport of personnel and supplies constitutes a key part of combat, the judge said.
The special law of 2003 states that the SDF will only operate in areas where no combat activity is taking place.
ASDF C-130 transports in Kuwait continued airlifting personnel and supplies to and from Iraq after Ground Self-Defense Force troops wrapped up their humanitarian support mission in Samawah, Iraq, in July 2006.
Chief Cabinet Secretary Nobutaka Machimura said the decision will not affect the ASDF mission because the government considers the airport in Baghdad the ASDF lands at to be a noncombat zone, making the mission constitutional.
“I cannot accept such a court ruling when the Japanese government has determined that (Baghdad airport) is a noncombat zone,” Machimura told a news conference.
The airport is a noncombat zone because many commercial aircraft also fly to and from the facility, he said.
“If (the airport) was a combat zone and truly dangerous, there is no way commercial planes could fly there,” he stressed.
The top SDF officer, Adm. Takashi Saito, chief of staff of the SDF Joint Staff Office, said the ASDF mission does not play an integral part in the use of force. He declined further comment.
Civic groups and individuals have filed several lawsuits to halt the SDF missions in Iraq on constitutional grounds.
All have failed.
The high court ruling is the result of an appeal that citizens filed after the Nagoya District Court rejected their lawsuit in April 2006.
The plaintiffs argued that the SDF activities in Iraq violate Article 9 of the Constitution and that their right to live peacefully was infringed upon by the deployment.
The district court did not make a judgment on the constitutionality of the GSDF deployment and rejected the plaintiffs’ demand to be paid ¥10,000 each in compensation for psychological pain caused by the deployment.
On Thursday, Judge Aoyama sided with the plaintiffs’ claim that the Constitution guarantees their right to live peacefully, but rejected their demand for damages, saying their rights were not infringed upon by the deployment.
Former Japanese Ambassador to Lebanon Naoto Amaki, one of the plaintiffs in the suit, declared a win after the ruling. “This is effectively a complete victory for us” he said, calling the decision “historic.”
June 1: Goro, AWC April 18: Kyodo staff reports April 18: The Asahi Shimbun
ASDF dispatch said unconstitutional
THE ASAHI SHIMBUN
2008 April 18
NAGOYA – In an unprecedented ruling, the high court here Thursday said Japan’s dispatch of Air Self-Defense Force personnel to Iraq was unconstitutional.
However, Thursday’s ruling on the SDF mission to Iraq will not lead to the immediate withdrawal of SDF troops, analysts said.
In addition, the Nagoya High Court sided with an April 2006 Nagoya District Court rejection of claims for an injunction against the SDF dispatch and demands for compensation for what plaintiffs called a violation of their right to a peaceful existence. There were 1,122 plaintiffs in the appeal before the Nagoya High Court.
After the ruling, Prime Minister Yasuo Fukuda told reporters, “The conclusion of the verdict is that the central government has won the case. I believe there are no problems. I have no intention of doing anything special in response.”
The plaintiffs said they would not appeal.
Thursday’s verdict was written by Presiding Judge Kunio Aoyama, but was read in court by Judge Kenichi Takada because Aoyama has retired from the bench.
Looking at the current situation, the verdict said, “The fighting in Iraq is an extension of the attack of Iraq that began in March 2003. It is an international conflict between a multinational force and armed elements (in Iraq).” In over four years, about 3,000 ASDF members were dispatched in 15 separate deployments.
The ruling also recognized Baghdad as a “combat zone” as defined under the Iraq special measures law because it is “a region where acts are being committed to kill and maim people and destroy property as part of an international armed conflict.”
Referring to ASDF’s duties, the ruling said, “In modern warfare, supply activities, such as transport, are an important part of combat activities.”
Thus, “ASDF airlifts of armed soldiers in the multinational force to the Baghdad combat zone were acts that could be identified as being involved in the use of force by other nations, and (the ASDF) could be said to have conducted use-of-force actions itself,” the ruling said.
The high court concluded that some ASDF duties had “violated provisions of the Iraq special measures law prohibiting the use of force and Article 9 of the Constitution.”
While the high court ruled the plaintiffs could seek compensation for violation of the right to a peaceful existence, it also ruled that the ASDF dispatch did not represent a situation in which “the lives and freedom of the plaintiffs were actually being violated.” The high court thus rejected claims for compensation.
While lawsuits were filed in 10 other district courts seeking injunctions and compensation, no court had yet sided with the plaintiffs. Moreover, no court until now has ever touched the constitutionality issue.
IHT/Asahi: April 18, 2008
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