[CML 008044] グランサコネ通信２０１１−１０
maeda at zokei.ac.jp
maeda at zokei.ac.jp
2011年 3月 12日 (土) 00:52:22 JST
THE JAPANESE WORKERS’ COMMITTEE FOR HUMAN RIGHTS
2-33-10 Minami-Otsuka, Toshima-ku, Tokyo, JAPAN
tel:+81-3-3943-2420 fax:+81-3-5395-3240 e-mail: hmrights at mx16.freecom.
Human Rights Council
11 March 2011
Right of Peoples to Peace
Statement by Mr. Akira MAEDA
Professor of Tokyo Zokei University
on behalf of the
Japanese Workers’ Committee for Human Rights (JWCHR)
Geneva, 11 March 2011
Japanese Wokers Committee for Human Rights welcome the discussion by
Advisory Committee in its 6 session of January 2011. We also welcome the
resolution of Human Rights Council 14/8 of 23 June 2010 on Promotion of
the right of peoples to peace. The right of peoples to peace is the
fundamental of civil, political, economic, social and cultural rights.
In this regard, we would like to introduce you the relevant decision of
Japanese court. As you know, Article 9 of Japanese Constituion proclaims
the renouncement of war and abandonment of army. In addition, the
Preamble of the Constituion reads in relevant part: " We, Japanese
people, recognize that all peoples of the world have the right to live
in peace, free from fear and want."
17 April 2008, Nagoya High Court found that the right to live in peace
is a concrete right. The high court stated that the integration of the
Japanese Self Defense Force's air transport activities with the use of
force by coalition forces in Iraq during military conflict constituted
the use of force by the Self Defense Force in violation of Article 9.
The court's finding of a violation of Article 9 was the first since the
Sapporo District Court's decision in the Naganuma case at 7 September
1973, and the first to be entered as a final judgment. The Nagoya High
Court's recognition of the right to live in peace was also the first
since Naganuma. Less than a year later, 24 February 2009, the Okayama
District Court followed Nagoya High Court in recognizing the right to
live in peace in a similar Self Defense Force Iraq Deployment case.
See Hudson Hamilton, Pacific Rim Law & Policy Journal Association Vol.
19 No.3, 2010.
Nagoya High Court decision 17 April 2008.
The underlying reasons for the ruling
On the Constitutionality of Self-Defense Force missions in Iraq
1 The unconstitutionality of the Self-Defense Force mission in Iraq
(1) The Japanese government’s interpretation of Article 9 of the
Constitution in regards to overseas missions and the use of force
by the Self- Defense Forces (SDF) is that it is only allowed to use
minimum force if necessary in self-defense. The use of force is defined
as the act of combat, which is offering personnel and/or supplies as a
part of “An International Conflict with Force.” Under this
interpretation, The Self-Defense Force should make the action referring
to the following:
1 Sending Self-Defense Forces overseas for combat is
prohibited. However, sending Self-Defense Forces overseas non-combative
purposes is allowed.
2 Supporting the combat of coalition forces indirectly (such
as transportations, replenishments, and medical treatments) is
prohibited if the Self-Defense Forces are physically with the coalition
forces. However, such support is allowed if the troops are not with the
3 Whether to support the combat of coalition forces can be
decided from the following:
A. The distance between the locations where the combat is taking place
in relation to the locations of the SDF.
B. The purpose for the presence of the SDF.
C. Camaraderie between soldiers of the country in combat and SDF
D. The circumstances under, which action is taken by the country in
The final decisions must be made by taking into account the
answers to the above and judgments must be made respectively.
(2) Under Article 9 of the Japanese Constitution, “The Special
Measures Law 2003” was passed. The following are the articles of “The
Special Measures Law 2003”.
The new law was made in order for Japan to promote humanitarian
and reconstruction assistance and/or ensuring security in Iraq (Article
1). Actions must not include any use of forces and /or threats of force
(Article 2 Section 2). Actions must take place within Japanese territory
or in places that are guaranteed not to be part of a combat zone
currently or within the foreseeable future during which time the SDF is
to occupy said space (Article 2 Section 3).
(3) What is referred to as “An International Conflict with Force” by
the government is, conflict using force involving more than one country
or entities (entity being a construct that can wield power like a
country). The existence of combat or lack there of must be judged
respectively by considering the international political location of the
country/countries and/or entity/entities, their strategies/goals, their
internal organization and their continuity as well as that of their
plans/goals. When the American and British militaries use force against
a recognized criminal organization, it is not considered “An
International Conflict with Force”. However, if an organization holds
political claim, has the ability to be the cause international conflict
and wields enough military power to bring about an international
conflict, and judged as an organization, which engages in demolition,
this organization is considered to be an entity.
(4) In fact, after President Bush declared the war over in May 2003,
the coalition forces, lead by the U.S. military, continued to eliminate
armed organizations by mobilizing and dispatching coalition forces to
cities such as al-Falluja and Baghdad. However, these organizations
gained more power through gaining support even from overseas. These
organizations’ political stances are recognized to include resisting
America’s occupation of Iraq. These organizations succeed in resistance
through having enough soldiers and organizing plans. As a result, many
civilians and soldiers have been injured and killed. The actions of the
coalition forces is beyond what is necessary to “ensuring security.”
Currently, there are conflicts between armed organizations based on
religious sects after the coalition’s attack on Iraq. Additionally,
these organizations are in conflict with the coalition. Both of these
conflicts are complexly intertwined and interwoven and have evolved into
a hopeless mess.
The current conflict between these organizations and the coalition
in Iraq can be said to be an extension of war against the Iraqi’s, which
began in the beginning of March 2003. Therefore, the conflict is between
the coalition and armed organizations in Iraq. Thus this is an
Therefore, what is currently happening in Iraq are conflicts
between the coalition and armed organizations which are entities. This
can not be defined as a type of civil war. It is “An International
Conflict with Force”.
The American military has tried to eliminate the armed
organizations based on the Shiite and the Sunni sects, especially since
2007. These organizations fought against the American military with
enough soldiers to resist effectively.
Therefore, this area is war zone in which people are killed and
injured, and things are demolished as in an International Conflict with
Force. Thus, this is war zone in which “The Special Measures Law 2003”
(5) In regards to the fact that, the Air Self-Defense Force had
accepted the request from The United States America, to transport
soldiers of the coalition forces from Ali Al Salem Air Base in the State
of Kuwait, to Baghdad International Airport. Since July 2006, the Air
Self-Defense Force has used three of the C-130H aircrafts to transport
soldiers of the coalition forces four or five times a week regularly.
This act does not involve any use of force, but with the situation in
Iraq now, transporting coalition forces is an essential element of
combat. By transporting coalition forces to Baghdad International
Airport, the Air Self- Defense Force has cooperated and assisted the
coalition forces in their use of force. Hence, the transportation
provided by the Self Defense Force at lease in regards to coalition
forces is use of force by the Self Defense Force as they occupy the same
(6) Therefore, even if “The Special Measures Law 2003”is
constitutional according to the interpretation of the Japanese
government, the activity of the Air Self- Defense Force is against “The
Special Measures Law 2003”. The actions of Air Self-Defense Force
violate Article 2 Section 2 of “The Special Measures Law 2003” which
forbids use of force, Section 3 which limits JSDF to non war-zone
locations as well as Article 9 section 1 of the Japanese Constitution.