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SECURITY > Self-Defense Forces

Editorial: Is SDF’s joint defense of on-site camps constitutional?

  • July 24, 2016
  • , Tokyo Shimbun , p. 5
  • Translation

With the enactment of the security laws, the restriction on the use of firearms was eased for the Self-Defense Forces (SDF) currently deploying to South Sudan to participate in the UN peacekeeping operations (PKO).

 

In order to help South Sudan become self-reliant, the government dispatched the Ground Self-Defense Force (GSDF) to the country to participate in the PKO, beginning January 2012. 350 GSDF troops, mainly for civil engineering, are engaged in road construction and other works. Earlier this month, combats broke out in Juba, the capital, between the presidential and the vice presidential groups. Consequently, the SDF suspended its activities and retreated to its on-site camp.

 

Members of the Japan International Cooperation Agency (JICA) evacuated the area by themselves, while four Japanese embassy staff members left the country by a dispatched SDF C-130 following the outbreak of combats.

 

Safety of the remaining SDF members is worrisome. Currently, the SDF suspended construction works and is helping local residents who evacuated the combat area and stay on the camp. How would the SDF respond in the event of attacks against the camp?

 

Before the security laws were enacted, the SDF was only allowed to use firearms for the defense of colleagues nearby and others under the SDF’s control. With the revised PKO Act, which is one of the enacted security laws, the SDF is now allowed to use firearms for the protection of foreign militaries staying within the SDF camp boundary. Consequently, this means that the SDF may defend the camp jointly with foreign militaries. The scheme is called “joint defense of on-site camps.” If an attacker is an entity as a nation or equivalent organization, the SDF’s use of force could violate the Article 9 of the Constitution prohibiting the use of force overseas.

 

In December 2013 when the first combat between the presidential and the vice presidential groups broke out, the PKO headquarters requested that the SDF should enhance its defense of the camp. The request included cooperation in creating a “net of covering fire,” in which the SDF will fire so that it will stretch a defense net with fired ammunitions. Regarding “net of covering fire”, the JGSDF’s Ground Research and Development Command (GRD) provided the following explanation. In order to enhance the effectiveness of “net of covering fire,” mutual supports among neighboring units are essential. In the previous constitutional interpretation, however, “net of covering fire” constitutes the use of force prohibited by the Constitution. Therefore, the SDF was not authorized to implement “net of covering fire.”

 

If so, how did “the joint defense of on-site camps”, which may include “net of covering fire”, become constitutional?

 

The selection of anticipated questions with proposed answers compiled by the Cabinet Secretariat explains that: 1) on-site camps are the last defense line; 2) troops who defend on-site camps are dependent on each other; therefore, authorized to use firearms for the purpose of self-preservation; 3) the use of firearms for the purpose of self-preservation is a right akin to a natural right under the natural law. Therefore, even if an attacker is an entity as a nation or equivalent organization, such use of force does not constitute the use of force as prohibited by the Constitution. In this way, the secretariat argues that defending other foreign militaries at on-site camps is a natural right; therefore, it is constitutional.

 

A defense ministry official explained, “If within the boundary of an on-site camp, the use of firearms by the SDF to defend foreign militaries is constitutional, even if they are one to two kilometers distant from the SDF unit.” The explanation is questionable. South Sudan’s presidential or vice presidential groups includes a regular army. It is incomprehensible that shootouts between the SDF and such regular army are considered not the use of force. In this manner, the SDF participating in the PKO is allowed to engage with enemy troops under the pretext of self-preservation.

 

Despite eleven bills deliberated in the Diet sessions, the security laws were passed only in four months. Most of the time was spent in deliberations on the right to exercise collective self-defense. Inquiring opposition parties’ did not touch the revised PKO Act.

 

The SDF troops currently stationing in South Sudan were dispatched from Hokkaido in May. Before their deployment, Defense Minister Gen Nakatani, bearing in mind the approaching House of Councillors election, said that he would order the SDF neither to carry out “rush to the aid of foreign troops” nor “joint defense of on-site camps,” both of which were made possible under the revised PKO Act.

 

Under the current law, “rush to the aid of foreign troops” is required to be written in an action plan to be decided by the cabinet. As Nakatani explained, this is not included in the action plan of the current deployment. Therefore, the SDF will not be allowed to implement it. “Joint defense of on-site camps”, however, is a different story. The SDF became capable of implementing the scheme at the time of the enactment of the revised PKO Act (Cabinet Office International Peace Cooperation Headquarters). In fact, this has been made possible by the implementation manual, which was decided by the Prime Minister.

 

When questioned about this point, Defense Ministry provided the view that, “In the event of an unexpected occurrence, the SDF will adequately carry out a feasible and workable mission by taking an actual case-specific situation into consideration.” This means that the SDF will implement anything possible and does not rule out “joint defense of on-site camps”. In the end, judgment is left at discretion of the SDF unit on site. (Abridged)

 

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