GOJ determined the quality and quantity of JSDF personnel focusing on the balance between 9/11 and OEF.
Based on this analysis, this dissertation concludes that Cabinet members did not sufficiently consider the principle of proportionality in jus ad bellum because the quality and quantity of force used was explained merely with the words “minimum and only necessary use of force;” however, the meaning of “minimum and only necessary use of force” is seemingly not shared among Diet members (interview with a then DPJ member of the House of Councillors, 6 July 2015). This leads to the result that Diet members used the words of “minimum and necessary use of force” like a mantra so that they can pretend to be conscious of quality and quantity in operation. Although they did demonstrate some consciousness of the issue, the dialogues in the Diet and the interview results demonstrate that Diet members did not pay attention to the principle of proportionality in jus ad bellum when deciding to participate in OEF: participating in OEF to strengthen the relationship with the US was more important than paying attention to the quality and quantity of the operation.
attention to the principles of jus in bello. Therefore, to answer the research question of this dissertation, this section will examine whether the GOJ considered each of these principles. To develop these two examinations based on the normative principles of jus in bello, the discussions in the Diet and the results of interviews conducted as part of this dissertation (see Appendix) will be referenced.
Following the description of the principles of jus in bello, this section will be divided into two parts: to analyse the permissible JSDF measures during OEF, we will first apply the principle of necessity and then the principle of proportionality. This will allow us to identify whether the GOJ considered the JSDF’s role in conducting the operation. To develop these two examinations based on the normative principles of jus in bello, the discussions in the Diet considered in earlier sections, particularly 3.3.3. and 3.3.4., will be referenced.
3. 5. 1. The Principle of Necessity
The principle of necessity in jus in bello required the government to consider in what situations JSDF personnel could use military power, so as to minimise the numbers of victims. Therefore, applying this principle will help to establish whether the GOJ clarified in what situations JSDF personnel could exercise military power. The normative principle provides that soldiers should not exercise any kinds of military power against their enemies except in emergencies, e.g. where their lives are threatened. We will first define
the areas to which JSDF personnel were dispatched in conducting the operation, to ascertain the degree to which their lives were threatened during the operation. By defining the situation faced by the JSDF, we can ascertain whether it was necessary for JSDF personnel to be armed. Having clarified the dispatch area, we will then evaluate whether the GOJ considered in what situations JSDF personnel would be permitted to use military weapons. By examining these two issues, we can ascertain whether the GOJ considered the principle of necessity in jus in bello.
According to the dialogues in the Diet, Cabinet members considered the situation in which JSDF personnel may use military force, such as firing weapons, in emergency cases. Expanding the capability of JSDF personnel in operations, Cabinet members believed it possible for Japan to be active during the operation.
According to the discussion in the Diet, JSDF personnel may use military force against their enemies to protect the lives and bodies of their collaborators and themselves.
This differs seemingly from legitimate self-defence and acts of necessity, as stated by the PCJ; however, the GOJ sufficient clarified the situations in which JSDF personnel may use military force against others. Hence, it is possible to conclude that the GOJ considered the principle of necessity in jus in bello when enacting the ATSML.
Seemingly the GOJ sufficient paid attention to the principle of necessity in jus in bello, this chapter points out the necessity of the GOJ to further consider this normative
principle: the GOJ should have considered not only the lives and bodies of their collaborators and themselves but also those of civilians in Afghanistan to fit with the principle of necessity in jus in bello. The lack of consideration on violating innocent people demonstrates that the GOJ insufficiently considered the principle of necessity in jus in bello: not considering on this point might be due to the confidence that JSDF personnel would not use military weapons against innocent people because they would be dispatched in non-battle fields; however, the normative principles of Just War Theory are based on the idea that all states should paying attention not to violate the rights of civilians before participating in international military operations. Overall, this chapter points out that the GOJ did not sufficiently consider the non-violation of human rights in general, particularly the rights of civilians in Afghanistan.
3. 5. 2. The Principle of Proportionality
The second principle, proportionality, guides us as to whether the quality and quantity of military power used by soldiers during an operation is proportional. Since JSDF personnel did not participate directly in OEF, it might be difficult to calculate how much military power they would use in this operation. However, it is possible to consider, for instance, whether the volume of oil that the JSDF transported to US aircraft was proportional.
As examined in 3.3.3. and 3.3.4., no discussions were held in the Diet regarding how much oil the JSDF would transport to US aircraft. Since the main discussion in the
Diet concerns compliance with the restrictions imposed by the JCL, the focus of debate was domestic legal matters.
The possibility of JSDF personnel using military force was mentioned in the Diet; however, the quality and quantity of military weapons were not mentioned when members were discussing the issue of legitimate JSDF activities in OEF. While the words
“minimum and only necessary use of force” were heard many times in the Diet, the quality and quantity of military force to be used were not made sufficiently clear. Overall, we can conclude that the GOJ did not sufficiently consider the principle of proportionality in jus in bello.