グランサコネ通信２０１１－１０

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@mx16.freecom.ne.jp

Human Rights Council

16 session

Item 3

10 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, 10 March 2011

Japanese Wokers Committee for Human Rights welcome the discussion by Advisory Committee on the right to peace in its 6 session of January 2011 and 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.

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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."

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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.

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See Hudson Hamilton, Pacific Rim Law & Policy Journal Association Vol. 19 No.3, 2010.

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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.