JURIST Guest Columnists Hitoshi Nasu and Donald Rothwell of the ANU College of Law, Australian National University, say that while Japan's proactive approach towards fighting maritime piracy marks a significant step in its rehabilitation as a global power capable of responsibly exercising limited military force, the initiative raises sensitive issues of international and Japanese law...
On 13 March, and in a significant shift away from its past 'rear-area support' policy toward international enforcement operations, Japan issued an executive order allowing for two Maritime Self-Defence Force (MSDF) destroyers the Samidare and Sazanami - to be dispatched to the Gulf of Aden to join the Task Force. Japan's decision to take 'maritime police action' at the front line was in response to the growing international and domestic pressure for protecting its own maritime commercial interests. But the executive order in accordance with Article 82 of the Self-Defence Forces (SDF) Act was issued without addressing the legal issues surrounding the counter-piracy operation. Japan's MSDF will have to battle not only with pirates but also with operational uncertainty. The executive order under the current SDF Act only permits the use of lethal weapons in legitimate self-defence and for avoiding imminent dangers. Accordingly, the MSDF mission cannot come to the aid of foreign vessels under pirate attack and use lethal force, as such action would be beyond the currently authorised Japanese limits of legitimate self-defence.
These developments highlight the challenge Japan faces in international enforcement and peacekeeping operations. Japan has gained a notorious reputation through the SDF's overseas peacekeeping operations where it has taken a restrictive approach to the use of weapons in self-defence, as illustrated in its deployments in Cambodia, East Timor, the Golan Heights and Iraq. On this occasion, however, Japan appears to be ready to take a more liberal approach, as seen in the draft bill submitted by the Cabinet in mid-March, which enables MSDF personnel to protect foreign vessels and authorises the reasonable use of weapons against pirate vessels if they approach or follow merchant ships or obstruct their navigation. The bill remains under consideration in the Diet. Although the leading opposition party is still yet to clarify its position, the bill has reportedly received wide public support in Japan. Once the bill is passed, it is expected that Japan will be able to perform the most effective operation ever in the history of SDF overseas missions.
Nevertheless, dangers will remain for the MSDF destroyers. One fear is that any revised rules of engagement may in fact permit an excessive use of force, intentionally or accidentally killing pirates or endangering their life. This has been dramatically highlighted by exercises which the MSDF have conducted en route to the area of operations during which an understanding has been gained of the dynamics of firing machine gun volleys into open water and the risks that arise from ricochets from the water's surface. In situations where nobody else is observing the scene, an unmonitored policing-type operation could easily amount to an extra-judicial killing. These are operational issues which have already arisen for other countries. British Royal Marines controversially shot and killed two Somali pirates in December 2008. The MSDF will therefore need to ensure they are operating under clear rules of engagement and exercise extreme caution if the use of defensive or lethal force becomes necessary.
Another legal and political challenge is the treatment of pirates once they have been arrested or captured at sea. Whilst the intervention of the Security Council through Resolutions 1816 (2008) and 1846 (2008) has gone some way to resolve these jurisdictional loopholes, there remain gaps which are compounded by a lack of political will on the part of some members of the international community to engage in law enforcement. The current situation in Somalia is unique and this goes some way towards explaining how the Security Council was able to go so far with its 2008 initiatives, including authorising limited law enforcement powers by the Combined Task Force within Somali territory. Nevertheless, all countries need to have the capacity under international law to prosecute persons who perpetrate acts of violence against foreign ships in all settings. To that end, innovative legal responses are required.
Japan's position on this issue is yet to be determined. The MSDF destroyers are also carrying coast guard personnel on board so that they can arrest pirates for crimes under Japanese law. This is an interesting departure from other countries' practice in their counter-piracy operations. In January the US and UK reached agreements with Kenya allowing for the transfer of suspected pirates to Kenya for trial, whilst the EU reached a similar agreement earlier this month. It remains to be seen if Japan adopts the same practice or makes efforts to return the captives to Japan out of consideration for the protection of their constitutionally protected human rights.
That Japan has chosen to take such a proactive approach towards this issue of international and Japanese maritime security is a significant step in its rehabilitation as a global power capable of responsibly exercising limited military force. It raises sensitive issues of international and Japanese law, but perhaps most importantly this maritime police operation may set the touchstone for Japan's ability to engage in international security issues and to meet the legal challenges that its robust peacekeeping and enforcement operations would encounter.
Dr Hitoshi Nasu and Professor Donald R. Rothwell teach International Security Law at the ANU College of Law, Australian National University