[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


グランサコネ通信2011−10
3月11日
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3月11日、NGOの国際人権活動日本委員会は、ジュネーヴで開催中の国連人
権理事会16会期において、「人民の平和への権利」について発言しました。内
容は、平和的生存権を認めた2008年4月17日のイラク自衛隊派遣違憲訴訟・
名古屋高裁判決の紹介です。
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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.
ne.jp


Human Rights Council 
16 session
Item 3
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 
Japanese
   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 
coalition forces. 
    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   
       combat.
   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 
international conflict/combat. 
   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” 
has identified

(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 
space.

(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.







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