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seeks to do away with the requirement of a search warrant. In fact,
the proposed bill only requires a ‘suspicion’84 on the part of the police that
the place to be searched contains terrorist persons or property. This is in
spite of the fact that the right to be secure from arbitrary searches is a
fundamental human right recognized by the Philippine Constitution and
international human rights law.85 It has even been argued that it is a jus
cogens right.86
The bill also removes the requirement for a warrant of arrest in instances
where the existing law would require one.87 One version of the bill allows the
police to detain any person on mere suspicion provided such person is in a
ship, aircraft, vehicle or train.88 Consequently, people may be legally detained
on the strength of mere suspicions. As stated by the Supreme Court in the case
of Umil v. Ramos:89
Personal knowledge must have been designed to obviate the practice in the
past of warrantless arrests being effected on the basis of or supposed
reliance on an information obtained from third persons who merely
profess such knowledge, or worse, concocted such reports for variant
reasons not necessarily founded on truth.90
The proposed measures also allow wiretapping on the basis only of a court
application.91 The existing law requires an examination under oath or affir-
mation of any witness produced.92
No doubt, 9/11 has become a ‘turning point of post-modern international
law’.93 The word that best describes the situation is ‘backlash’. The reverbera-
tions of the American-launched war on terrorism are felt everywhere:


82
CONST. (1987) Art. III. 83 Stonehill versus Diokno 20 SCRA 383 (1967).
84
Section 24 (2) Inter-Agency Draft Bill ‘An Act Defining the Crime of Terrorism’.
85
Art. 17, International Covenant on Civil and Political Rights 1966, 999 U.N.T.S. 171; Art.
12 Universal Declaration of Human Rights, G.A. Res. 271 A (III), G.A.O.R., 3rd Session,
Part 1, Resn., p. 71.
86
(1993) 14 H.R.L.J. 370. 87 Sec. 6, Rule 116, Rules of Criminal Procedure.
88
Above note 84, s. 24(1). 89 203 SCRA 251 (1991). 90 Ibid. at 296.
91
Above note 84, s. 23 (1). 92 Sec. 3, RA 4200.
93
Baxi, ‘Operation Enduring Freedom: Towards a New International Law and Order?’
Speech delivered at the Kalinaw-Asian People Speak Up for Peace Conference,
University of the Philippines, Diliman, Quezon City, February 9, 2002.
PHILIPPINES: WEAKEST LINK IN THE FIGHT AGAINST TERRORISM? 323

international law scholars and civil libertarians have rung the alarm bells over
what they say is the retreat of human rights and established principles of
humanitarian law in the face of the new order that the Bush administration
and its allies, including President Arroyo, are seeking to carve. Amnesty
International charges that the anti-terror war has set back whatever gains the
cause of human rights has made in fifty years as governments around the world
pass legislation seeking to combat terrorism which curtail many fundamental
liberties as well as guarantees for human rights, humanitarian law and interna-
tional law.94 The proposed legislation in the Philippines appears to be consistent
with this worldwide trend.95 Perhaps it is best to heed the urgent appeal of the
Special Rapporteur to the UN High Commissioner for Human Rights:
[The Special Rapporteur and Independent Experts] express alarm at the
growing threats against human rights, threats that necessitate a renewed
resolve to defend and promote these rights. They also note the impact of
this environment on the effectiveness and independence of special procedures.
Although they share in the unequivocal condemnation of terrorism, they
voice profound concern at the multiplication of policies, legislation and
practices increasingly being adopted by many countries in the name of the
fight against terrorism which affect negatively the enjoyment of virtually all
human rights – civil, cultural, economic, political and social.
They draw attention to the dangers inherent in the indiscriminate use of the
term ‘terrorism’, and the resulting new categories of discrimination. They
recall that, in accordance with the International Covenant on Civil and
Political Rights and pursuant to the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, certain rights are
non-derogable and that any measures of derogation from the other rights
guaranteed by the Covenant must be made in strict conformity with the
provisions of its article 4 . . .
[The Special Rapporteurs and Independent Experts] deplore the fact that,
under the pretext of combating terrorism, human rights defenders are
threatened and vulnerable groups are targeted and discriminated against
on the basis of origin and socio-economic status, in particular migrants,
refugees and asylum-seekers, indigenous peoples and people fighting for
their land rights or against the negative effects of economic globalization
policies.

94
See http://web.amnesty.org/library/Index/engACT300272001?OpenDocument&of ÂĽ
THEMES\DISCRIMINATION.
95
It is certain that the legality of any special law on terrorism will be decided upon by the
Philippine Supreme Court. In the recent case of Francisco et al., versus Speaker De
Venecia, G. R. N. 160261, 10 November 2003, the court (at 44–5) ruled that judicial review
in the Philippines is ‘expressly provided for in the Constitution, is not just a power but also
a duty, and it was given an expanded definition to include the power to correct any grave
abuse of discretion on the part of any government branch or instrumentality’.
H. HARRY L. ROQUE, JR.
324

They strongly affirm that any measures taken by States to combat terrorism
must be in accordance with States’ obligations under the international
human rights instruments.96


IV. Is a new law necessary?
Under existing laws, the Philippines can deal with terrorism through various
provisions of the Revised Penal Codes,97 and on the basis of special laws
enacted as implementing legislation to international treaty obligations deal-
ing with particular forms of terrorism. For example, when the Abu Sayyaf
resorts to kidnapping for ransom and murder, they are liable for prosecution
for the capital offences of kidnapping and murder penalized under articles
267 and 248 of the Revised Penal Code (RPC), respectively. When they
commit rape and other gender-based violence against women, they may be
held liable for rape under RA 8353, an act amending Art. 266 of the RPC, and
Presidential Decree No. 532. Likewise, both air-jacking and piracy are penal-
ized under RA 6235 and Art. 122 of the Revised Penal Code, respectively.
As to the issue of terrorist access to modern technology such as email and other
audio-graphic technologies, RA 8792, otherwise known as the E-commerce law,
and the Supreme Court-promulgated rules on electronic evidence98 have since
filled the lacunae for the criminal prosecution of those who may utilize technol-
ogies such as email and other modern day devices.
By way of adherence to international treaties that seek to address specific
aspects of terrorism, the Philippines is the model of a state adhering to all
existing treaties that deal with specific aspects of terrorism.99 Where it
probably needs to improve is in its compliance with treaty obligations to
legislate domestic enabling legislation pursuant to treaties that it has volun-
tarily adhered to. For instance, with respect torture and genocide, which of

96
See http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.2004.4.En?Open
document.
97
Act No. 3815, as amended. 98 Rules on Electronic Evidence effective August 1, 2001.
99
The Philippines is a party to all existing conventions relating to particular aspects of
terrorism. The author concedes that this could form part of a bigger and more responsive
national policy against terrorism. The Philippines is a state party to: Convention on the
High Seas , UN Doc A/Conf. 13/L 52–55 (1958); Convention on Offenses and Certain
Other Acts Committed on Board Aircraft, 860 U.N.T.S. 219 (1963); Convention for the
Suppression of Unlawful Seizure of Aircraft, 860 U.N.T.S. 105 (1970) Convention for the
Suppression of Unlawful Acts Against the Safety of Civil Aviation, 974 U.N.T.S. 177
(1971); Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons including Diplomatic Agents, 1035 U.N.T.S. 167
(1973); International Convention Against the Taking of Hostages, UN Doc. A/Res/34/
146 (1979); Convention on the Physical Protection of Nuclear Materials, IAEA Doc.
IFCIR/225 (March 3, 1980); Convention on the Law of the Sea (UN Doc. A/Conf. 62/
122 (1982); Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving
PHILIPPINES: WEAKEST LINK IN THE FIGHT AGAINST TERRORISM? 325

late have been resorted to by terror groups, the Philippines has failed in its treaty
obligation to criminalize these kinds of conduct under its domestic law.100
Likewise, modern day acts of terrorism, when targeted on civilian popula-
tions and other protected persons and installations, such as schools, hos-
pitals, power plants and water treatment facilities constitute war crimes or
crimes against humanity prohibited by the Geneva Conventions.101 Contrary
again to its treaty obligation, the Philippines has failed to penalize under its
domestic law grave breaches of the Geneva Convention, as well as serious
breaches of the same in armed conflicts of a non-international character.102
Likewise, despite the fact the Philippines has contributed greatly to the
principle of international criminal responsibility for those who commit
international crimes, including war crimes and crimes against humanity, as
well as the principle that customary international law is a legal basis for the
prosecution of war crimes and crimes against humanity, it has failed to
submit for ratification the Rome Statute of the International Criminal
Court.103
Moreover, despite Philippine jurisprudence that Philippine courts may in
fact exercise jurisdiction in criminal cases for the prosecution of war crimes
and other recognized international crimes, its Supreme Court has not acted
on proposals to amend the existing rules of court to provide for an appro-
priate conflict rule that a court which first exercises jurisdiction over an
international crime covered by universal jurisdiction does so to the exclusion
of others.104 Such a rule will remove any doubt as to the competence of
Philippine courts to exercise universal jurisdiction on matters involving
international crimes.


International Civil Aviation, ICAO Doc. 9518 (February 24, 1998); Convention for the
Suppression of Unlawful Acts against Safety of Fixed Platforms Located at the
Continental Shelf, IMO Doc. A/Conf./16/Rev. 2 (1988); Convention on the Marking of
Plastic Explosives for the Purpose of Detection, S/22393 & Corr. 1 (March 1, 1991);
Convention on the Safety of United Nations and Associated Personnel, UN Doc. A/49/
742 (1994); International Convention for the Suppression of Terrorist Bombing, UN
Doc. A/Res/52/164 (1998); Convention for the Suppression of Financing of Terrorism,
UN Doc. A/AC.252/L.7 (1999).
100
Art. V of Convention on the Prevention and Punishment of the Crime of Genocide, 78
U.N.T.S 277 (1951); Article 4 of Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, 23 I.L.M. 1027 (1984).
101
Art. 51.2, Protocol 1 and Art. 13.2, Protocol 2.
102
Art. 45, Second Geneva Convention.
103
Philippines is a signatory to the Rome Convention creating the International Criminal
Court. It has, however, not become a member of the court since it has not ratified the
treaty. For status of signatures and ratifications, see http://untreaty.un.org/ENGLISH/
bible/englishinternetbible/partI/chapterXVIII/treaty17.asp.
104
Proposal was made by the author in a letter addressed to the Committee on the Revision
of the Rules of Court dated 20 May 2003.
H. HARRY L. ROQUE, JR.
326

As to the specific innovations in the proposed bill on terrorism, it would
seem that while faster apprehension of suspected terrorists is a laudable goal,
such a goal should not be to the extent of violating internationally recognized
principles of human rights. It would seem that because of events like the
Lamitan incident, the answer lies not in the enactment of the proposed bill,
but in addressing a recognized malaise in Philippine society: that of corrup-
tion and enforcement of existing laws.
16

Japan’s response to terrorism post-9/11
MARK FENWICK




I
Formulating an appropriate response to terrorism presents all governments
with an acute political dilemma. On the one hand, by failing to act decisively a
government runs the risk of providing terrorist groups with the opportunity
to consolidate in order to launch further and even more devastating attacks.
On the other hand, there is the opposite danger of over-reacting. After all, one
of the key objectives of terrorism is to provoke states into adopting security
policies that expose the commitment to constitutional rule as being shallow,
hypocritical and contingent upon circumstances. By inviting a ‘terror against
terror’, the terrorist hypothesis is that violent attacks can cause governments
to derogate from key constitutional principles, and that such a suspension of
norms exposes the limits of the rule of law and undermines the moral
authority of the state. Striking an appropriate balance between the need for
action and the danger of over-reaction has, post-9/11, become a pressing
issue for all governments as they formulate counter-terrorism policy.
This chapter will examine some of the key issues raised by Japan’s response
to the 9/11 attacks and the global ‘war on terrorism’ that has followed. In
responding to 9/11, many liberal democracies substantively expanded the
coercive powers of the criminal law as well as the investigative powers of state
agencies. In some cases, constitutional rights have been curtailed or even
suspended. However, in Japan no significant changes to the Criminal Code or
the Code of Criminal Procedure were enacted as a result of 9/11. Although
legislative measures related to terrorist financing were introduced to ensure
that Japan complied with its obligations in international law, no comprehensive
anti-terrorism law of the kind passed in many jurisdictions was introduced. In
fact, the principle legal instrument for countering terrorism, the Subversive


I would like to express my appreciation to all the participants in the Comparative Anti-
Terrorism Law and Policy Symposium organized by National University Singapore, June
2004, and, in particular, to C. H. Powell and Simon N. M. Young for their insightful
comments on an earlier draft.

327
MARK FENWICK
328

Activities Prevention Law was not amended, in spite of well-documented
deficiencies. At first glance, the Japanese response to 9/11 appears to be a
controlled one.
And yet, 9/11 has instigated a significant shift in Japanese legal culture.
Unlike many jurisdictions where discussion of counter-terrorism has
focused on balancing the civil liberties of suspect populations with national
security interests, the Japanese debate has involved an altogether different
question, namely what is an appropriate military contribution for a sovereign
nation to make in the global war on terrorism. More practically, this has
meant delimiting the role for the Japanese Self-Defence Forces (SDF) in
counter-terrorism operations overseas. The legal context for this discussion
is, of course, Article 9 of the Japanese Constitution, which on an initial
reading, at least, explicitly renounces war and prohibits the maintenance of
any military forces. Rather than embrace the values of Article 9, however,
successive Japanese governments have come to regard the provision as being
incompatible with Japan’s national interest and international obligations,
and, in particular, the demands of the US–Japan security framework.
The chapter will examine this issue via a discussion of perhaps the most
important piece of post-9/11 legislation, the Anti-Terrorism Special
Measures Law. This law is significant in practical terms because it provides
the legal basis for the overseas deployment of Japanese forces in the context of
counter-terrorism operations. It will be suggested, however, that the military
importance of the law is of less significance than its constitutional implications.
The Anti-Terrorism Special Measures Law marks a clear break with the previous
`
official view vis-a-vis Article 9. In order to justify the overseas deployment of
the SDF in the context of counter-terrorism, the government has had to abandon
the last vestiges of an earlier justification for the constitutionality of the SDF
based around a narrowly defined concept of self-defence in favour of a more
expansive and ambiguous standard inspired by international cooperation in
eradicating terrorism. The principle contention of the chapter, therefore, will
be that the attacks of 9/11 have weakened constitutional rule in Japan, not
by provoking the state into adopting draconian domestic counter-terrorism
measures, but by instigating a controversial re-interpretation of the Constitution
that permits the overseas deployment of the SDF and exposes the lack of
normative force of Article 9.

II
Immediately after the 9/11 attacks Prime Minister Junichiro Koizumi
pledged his government’s strong support for the United States. Within one
week a Ministerial Meeting Concerning Measures against Terrorism had been
convened and a package of counter-terrorism measures – Japan’s Measures in
Response to the Simultaneous Terrorist Attacks in the United States – was
JAPAN’S RESPONSE TO TERRORISM POST-9/11 329

confirmed.1 As ‘Basic Policy’ it provided that Japan would ‘actively engage’ in
the fight against terrorism, which it regarded as ‘Japan’s own security issue’,
and that Japan would strongly support the US, its most important ally, in
both a military and humanitarian capacity. Seven ‘Immediate Measures’ were
outlined.2 What is striking about these immediate measures and the govern-
ment’s response to 9/11 more generally is the focus on external measures and
the absence of any significant reform of domestic security laws. This decision is
even more surprising when one considers the current state of counter-terrorism
laws in Japan. This section will therefore offer a brief overview of counter-
terrorism law in Japan and examine some of the reasons for the decision not to
significantly reform them post 9/11.
As a preliminary observation, it is important to note that in spite of having
extremely low rates of ‘street crime’ politically motivated violence has been a
recurring problem in modern Japan. The image of Japan as a harmonious,
well ordered and ‘crime free society’ is somewhat undermined when one
considers Japanese history.3 After 1945, the Japanese Communist Party and
the North Korean League engaged in radical protest against the pro-US policy
and increased anti-communism of the new administration. Between 1948
and 1952 there were a series of violent clashes with the police resulting in
thousands of arrests.4 Such demonstrations flared up again in 1959–60 when
4.7 million demonstrators confronted a mobilized police force of around
900,000, and 1967–70 when 18.7 million demonstrators clashed with security
forces numbering 6.7 million.5 Since the late 1960s the activities of extreme
left groups became increasingly violent. The most well-known of these
groups, the Japanese Red Army Faction, carried out a series of attacks
both domestically and abroad.6 Between 1969 and 1989, over 200 bombing
incidents occurred and 570 ‘guerilla attacks’ were recorded between 1978 and

1
An English language version of this document is available on-line at http://www.mofa.
go.jp/region/n-america/us/terro0109/measure.html.
2
The seven ‘Immediate Measures’ were: (1) SDF ‘support for US response to terrorist
attacks’; (2) SDF assistance in ‘securing US facilities inside Japan’; (3) dispatch of SDF
ships for ‘information’ (i.e. surveillance) purposes; (4) greater ‘information sharing’ with
other countries, particularly in the context of immigration; (5) humanitarian aid to regions
affected by the war on terrorism; (6) assistance to displaced persons, including ‘the
possibility of humanitarian assistance by SDF’; and, (7) measures to ‘avoid confusion in
the international and domestic economic systems’.
3
See P. J. Katzenstein, Cultural Norms and National Security: Police and Military in Post-War
Japan (Ithaca, Cornell University Press, 1996).
4
The following statistics derive from P. J. Katzenstein and Y. Tsujinaka, Defending the
Japanese State: Structures, Norms and the Political Responses to Terrorism in Post-war
Japan (Ithaca, Cornell University Press, 1991), Appendix.
5
Ibid, 8–9.
6
For a general account of the Red Army, see A. Gallagher, The Japanese Red Army
(New York, Rosen, 2003).
MARK FENWICK
330

1989. Right wing extremists have also engaged in violent campaigns, including
´
a series of political assassinations and attempted coup d’etats (including the
incident in November 1970 when novelist Yukio Mishima committed ritual
suicide after failing to persuade SDF recruits to join his attempted revolution).
More recently, there has been a growth in religiously motivated violence,
notably that associated with the cult Aum Shinrikyo.7 Aum is well known for
the sarin gas attack on the Tokyo subway in March 1995 that killed 17 and
injured more than 5,000. However, prior to this incident Aum members had
been implicated in as many as 80 individual murders and a string of attempted
chemical and biological attacks.8 In fact, Aum began developing weapons of
mass destruction in 1990 and successfully manufactured anthrax and botulinus
toxin, in addition to sarin.9 None of this is to suggest that Japan has been
plagued by civil unrest or political violence, but rather to highlight that such
incidents have occurred periodically and that any limitations in security laws
cannot be accounted for by the absence of a terrorism problem.
In response to specific incidents, successive governments enacted a number
of special laws to supplement the provisions of the Criminal Code. For
example, after a series of bomb attacks involving ‘Molotov cocktails’ the Law
for the Punishment for the Use of Glass-Bottle Grenades was enacted in 1972,
which criminalized the use, possession or manufacture of gasoline bombs.
More recently, the Law Concerning the Prevention of Bodily Harm Caused
by Sarin Gas was enacted in 1999 after the Tokyo subway attack. As might be
apparent from these two examples, such legislation was usually narrow in scope
and the content was framed in response to specific incidents. The result of this
approach has been an ad hoc collection of laws whose utility is sometimes
difficult to discern. These laws are rarely, if ever, enforced and seem designed
as short-term measures to appease public anxieties during periods of uncertainty
rather than as elements of a coherent counter-terrorism strategy. And yet, such
laws are not usually repealed, even when the threat they were designed to
counter has long since passed. They remain on the statute books for possible
future use as and when it may be necessary or expedient.
The most important of the special laws relating to terrorism is the
Subversive Activities Prevention Law of 1952 (SAPL). It is worth considering
the SAPL because it illustrates many of the difficulties associated with
enforcing security laws in Japan. Enacted during the Korean War and escalating
US–Soviet tensions, the SAPL was initially intended to suppress the Japanese


7
For general accounts of Aum, see D. A. Metraux, Aum Shrinrikyo and Japanese Youth
(New York, University Press of America, 1999); and I. Reader, Religious Violence in
Contemporary Japan: The Case of Aum Shinrikyo (New York, Curzon, 1999).
8
R. J. Lifton, Destroying the World to Save It: Aum Shinrikyo, Apocalyptic Violence and the
New Global Terrorism (New York, Metropolitan, 1999), at 37–9.
9
Ibid., 39.
JAPAN’S RESPONSE TO TERRORISM POST-9/11 331

Communist Party and other left-wing groups. In principle, however, it can be
utilized against any ‘subversive’ organization or individual belonging to such an
organization. The purpose of the SAPL is ‘to contribute to the preservation of
public safety by establishing regulatory procedures for taking action against
organizations which have carried out terrorist activities as organizational activities
and supplementing the Criminal Code with additional penalties’.10 Certain desig-
nated crimes (including riot, arson, the use of explosives, endangering the passage
of public conveyances, murder, robbery, interference in the exercise of duties of
public officials) normally prosecuted under the Criminal Code can be prosecuted
under the SAPL if committed with a ‘political purpose’ by ‘a person or persons
affiliated with a subversive organization’.11 Those prosecuted under the terms of
the SAPL are liable for more severe punishments than if prosecuted under the
Criminal Code. However, there have been very few such prosecutions and all
related to minor offences carried out by members of radical left-wing groups in the
period up to the early 1970s.12 In each case the legal proceedings were extremely
protracted. For example, several left-wing radicals arrested between 1969–71 only
had their convictions confirmed by the Supreme Court twenty years later in 1990.
The SAPL also contains provision for an organization to be banned or
restricted from engaging in certain activities.13 An intelligence agency was
established – the Public Security Investigation Agency (PSIA) – that may desig-
nate an organization as ‘a danger and appropriate for surveillance and investiga-
tion’, and may implement proceedings for the banning of such an
organization.14 The process is initiated when the Director-General of the PSIA
makes an application to dissolve an organization. A government committee on
security matters reviews the application. Details of the application, including the
rationale for applying the law, are then printed in the government gazette and
representatives of the targeted group are allowed to state their views at public
hearings. Finally, the Public Security Commission (PSC) – a different and
independent administrative body – decides whether to apply the law against
the organization. The legal standard for the decision to ban a group involves
three elements, namely that the targeted organization has (i) engaged in ‘destruc-
tive activities’ that (ii) they have ‘a political purpose’ and (iii) that the organiza-
tion ‘poses an ongoing threat’. Even then the law will only be applied ‘within the
minimum extent necessary to assure public safety’.15

10
SAPL, Article 1. 11 Ibid., Article 4.
12
See Katzenstein and Tsujinaka, Defending the Japanese State, 70–5.
13
SAPL, Articles 5–9.
14
The PSIA is an external branch of the Ministry of Justice and is the government agency
responsible for the investigation and surveillance of domestic subversive organizations.
15
SAPL, Article 2. Moreover, Article 3(1) prohibits the ‘unreasonable restriction to freedom
of thought and freedom of association’, and Article 3(2) prohibits the ‘restriction of and
interference with the legitimate activities of any organization through the abusive use of
the SAPL’.
MARK FENWICK
332

Although a number of groups have been, and continue to be, placed under
surveillance by the PSIA (including Korean Japanese groups, as well as radical
left-wing and nationalist groups) no organization has ever been dissolved under
the terms of the law. The most recent case of dissolution proceedings being
initiated against an organization involved the Aum cult. After it carried out the
sarin gas attack on the Tokyo subway proceedings were initiated to dissolve
Aum. However, the PSC on 31 January 1997 rejected the PSIA’s application for a
dissolution order. Although the PSC acknowledged (somewhat controversially)
that the cult had a political motive in carrying out the attacks, they concluded
that Aum no longer posed an ongoing threat, i.e. as a result of the post-1995
police crackdown on the cult, there was no longer a danger that Aum would
repeat its subversive activities in the future. Consequently, the request for a
dissolution order was rejected. However, the PSC went on to note that the PSIA’s
future performance of its duties regarding Aum should be strictly separated from
the decision not to ban the cult. The PSIA, therefore, continues to monitor
Aum’s activities. This kind of PSIA intelligence gathering work would appear to
be the only aspect of the SAPL that is currently in operation, and this is largely
because it (perhaps necessarily) occurs outside the glare of publicity.
Given the degree of public anger directed against the cult in the wake of the
1995 attack, one might imagine that the decision of the PSC not to ban Aum
would have been criticized. However, the decision was met with almost
unanimous approval. For example, the Mainichi newspaper labelled the
ruling ‘sound’,16 while the left-leaning Asahi newspaper, praised the commission
for their ‘calm appraisal of the facts’.17 An editorial in the Asahi went so far as to
call into question the very existence of the SAPL and the PSIA. It was suggested
that the law was ‘draconian’ and ‘likely to violate basic human rights’.18 An
analogy was made to the repressive conditions of pre-war Japan and the SAPL
compared to the Peace Preservation Law of 1925, under which a number of
religious and other groups were suppressed. Finally, the most conservative of
the dailies, the Yomiuri newspaper, pointed out that ‘the judgment shows
that the SAPL is almost useless in stemming the rising tide of organized
crime . . . Japan has no law that effectively prevents or checks organized
crime or terrorism’.19 Politically progressive groups, such as the Japanese
Civil Liberties Union and the National Bar Association joined those critical
of the SAPL. They argued that the SAPL violates the due process provisions
of the Constitution because any decision made by the PSC regarding the
dissolution of an organization is made by an administrative agency and not a
court and it excludes the application of administrative law, notably those
provisions that permit the appeal of the decision of an administrative agency.
Moreover, the fact that the law allows for the dissolution of an organization

16
Mainichi Shimbun, 1 February 1999, 2.
17
Asahi Shimbun, 1 February 1999, 5. 18 Ibid. 19
Yomiuri Shimbun 1 February 1999, 4.
JAPAN’S RESPONSE TO TERRORISM POST-9/11 333

infringes upon the freedom of association, the freedom of expression and
mental freedom provisions of the Constitution. Although the Supreme Court
has confirmed the constitutionality of the SAPL, it is difficult, given the
criticism of the law from all sides of the political spectrum, to regard it as an
effective instrument of counter-terrorism.
It is against this background that one must consider the Japanese
government’s decision post-9/11 not to enact a comprehensive anti-terrorism
law or to amend existing special laws relating to terrorism. In accounting for
this decision, a number of factors should be mentioned. Firstly, unlike in many
jurisdictions there was no public outcry in the immediate aftermath of 9/11
demanding stronger domestic counter-terrorism legislation. This may reflect a
general perception that Islamic terrorism is not a Japanese problem or, at least,
not a problem within Japan.20 In addition, there has been little external
political pressure placed on the Japanese government from the United States
to enact more comprehensive domestic security laws. Such pressure – so-called
gaiatsu – is often an important factor in Japanese lawmaking. As we shall see in
the next section, the external pressure that has been placed on the government
post-9/11 has involved the overseas deployment of the SDF rather than a call
for tougher internal security laws. Given the sensitivity measures relating to the
SDF, perhaps the government simply felt that it would be politically unwise to
introduce another piece of controversial legislation at the same time as it was
expanding the scope of SDF activities.
The government may also have felt that a more comprehensive anti-terror
law is unnecessary because existing criminal law, criminal procedure law and
immigration law provides the authorities with sufficient powers to deal with
terrorism effectively. Most obviously, the Code of Criminal Procedure is
widely regarded as favouring the interests of investigating authorities.21 For
example, the Code permits suspects to be detained for up to twenty-three
days prior to indictment. During this time, investigators have constant access
to suspects for the purpose of interrogation and legal representation is
limited and subject to prosecutorial control. Although the Constitution
provides for an extensive range of rights for suspects and defendants, the
courts, and particularly the Supreme Court, have tended to favour the
investigating authorities and rights, such as the right to silence, have been
eroded. Moreover, immigration law has permitted the tightening of border

20
More recently, however, public anxiety has been raised by the disclosure that a French
citizen, Lionel Dumont, who is suspected of having links with Al Qaeda, had allegedly
been attempting to form a terrorist cell inside Japan, see Time, 7 June 2004, 37.
21
For more on Japanese criminal justice, see D. Foote, ‘The benevolent paternalism of
Japanese criminal justice’ (1992) 80 California Law Review, 317; D. T. Johnson, The
Japanese Way of Justice: Prosecuting Crime in Japan (Oxford University Press, 2002);
S. Miyazawa, Policing in Japan: A Study on Making Crime (Albany, State University of
New York Press, 1992).
MARK FENWICK
334

controls and the more active pursuit of illegal immigrants.22 Certainly
measures of this kind have been prominent post-9/11 in Japan. With such
extensive powers already at their disposal, the government may have felt it
was unnecessary to enact further counter-terror laws.23
And yet, a noteworthy feature of the Aum saga was that state agencies were
apparently unwilling to utilize their powers in spite of widespread evidence of
criminal activity including evidence of the production of weapons of mass
destruction.24 This points to a final factor why there has been no overhaul of
counter-terrorism law. An important legacy of the history of state abuse of
power that occurred in pre-1945 Japan is an ongoing concern with possible
infringements of civil liberties by state agencies, particularly in cases invol-
ving questions of political and religious freedom.25 A painful history of
state-sponsored terror has meant that it is politically difficult to enact and
then enforce counter-terrorism laws. The narrow scope of earlier counter-
terrorism law confirms this point. One reason for the failure to act against
Aum was that the cult had been designated a religious corporation in 1989.
Such a designation may well have shielded Aum from the gaze of the autho-
rities who would have been criticized for violating religious freedoms if they
had aggressively pursued the cult. In a society such as Japan where ‘face’ is
important this kind of public criticism would be awkward for the investigat-
ing authorities, even if the allegations of criminal activity were subsequently
proven. Legislation passed in the wake of the Aum attacks was controversial.
In particular, the Wiretapping in Criminal Investigations Law, which for the
first time in Japanese criminal procedure authorized the use of wiretapping,
was subject to much public criticism.26 In the absence of a specific attack

22
See H. Mizukoshi, ‘Terrorists, terrorism and Japan’s counter-terrorism policy’ (2003) 53
Gaikko Forum, 53.
23
Aside from tightening immigration controls, perhaps the most significant government
operational measure post-9/11 has been an organizational one, namely the creation of a
Foreign Policy Bureau and an International Counter-Terrorism Cooperation Division
within the Ministry of Foreign Affairs. Their principle task is to facilitate closer cooperation
amongst government agencies concerned with terrorism, as well as with the international
community. This measure seems designed to overcome a limitation of the SAPL, namely
its exclusive focus on domestic terrorism.
24
See R. J. Lifton, Destroying the World to Save It, ch. 1.
25
For general accounts of pre-1945 repression, see R. Tipton, The Japanese Police State:
Tokko in Inter-war Japan (Honolulu, University of Hawaii Press, 1991); R. M. Mitchell,
Janus Faced Justice: Political Criminals in Imperial Japan (Honolulu, University of Hawaii
Press, 1992); P. Steinhoff, Tenko: Ideology and Social Integration in Pre-War Japan
(New York, Garland, 1999).
26
On this and other reforms, see S. M. Lenhart, ‘Hammering Down Nails: The Freedom of
Religious Groups in Japan and the United States: Aum Shinrikyo and the Branch
Davidians’ (2001) 29 Georgia Journal of International and Comparative Law 491. It is
also worth noting that more than ten leading figures within the cult – including the guru
Shoko Asahara – have been sentenced to death as a result of their role in the 1995 attack.
JAPAN’S RESPONSE TO TERRORISM POST-9/11 335

within Japan, the public appears to lack the appetite for enacting or enforcing
counter-terrorism laws. Moreover, as the Aum case illustrates, where such an
attack does occur, public scepticism about security legislation means that it
can be politically difficult for the government to introduce any measures that
are perceived as infringing upon civil liberties.
In fact, the most significant legislative measures that the Japanese government
introduced post-9/11 were concerned with terrorist financing. These measures
are interesting because they highlight another feature of post-war Japanese
policy towards terrorism, namely that the government is keen to be seen as a
responsible and cooperative member of the international community. When
an international instrument concerning terrorism is concluded and a consensus
exists, the government will act to implement any necessary domestic measures.
Japan is a signatory of all twelve UN Conventions relating to terrorism and as at
September 11, 2001 had ratified eleven of them, the exception being the
International Convention for the Suppression of the Financing of Terrorism.
As a result of the events of 9/11, the ratification process was accelerated and the
process of incorporating the Convention into domestic law was concluded on
11 June 2002. In order to implement the Convention, as well as various
UN Security Council Resolutions, a series of reforms were introduced that
considerably strengthened surveillance and control of money flows related to
terrorism, together with the targeting of terrorist financing. Most significantly,
a series of amendments were made to the Foreign Exchange and Foreign Trade
Law in order to implement the more effective control of criminal assets. These
powers were utilized to freeze assets of groups identified by the UN Security
Council as associated with the Taliban and al Qaeda. By aggressively targeting
terrorist financing, the Japanese authorities have followed the lead of the
international community post-9/11.
One might be tempted to conclude from the above that Japan’s response to
9/11 has been a controlled and relatively uncontroversial one. For those
accustomed to the kind of aggressive counter-terrorism measures adopted in
the US, Canada or UK post-9/11, the stance of the Japanese government appears
to be something of an anomaly. Stated somewhat starkly, there has been an
apparent unwillingness on the part of the Japanese government to mobilize the
full force of state authority against terrorism preferring instead a more cautious,
or at least less visible, approach. In this respect, the post-9/11 response is
a continuation of earlier policy. The only significant legislative measures relate
to the disruption of terrorist financing, an issue that is relatively uncontroversial
domestically and sanctioned by the international community. In the absence of
a specific incident within Japan it is difficult to envisage this situation changing.
However, it would be a mistake to conclude that 9/11 has not had a significant
impact upon Japanese law or politics. Quite the contrary, 9/11 has resulted in an
important shift in government policy in so far as it relates to the SDF. However,
this focus on delimiting an appropriate military role in the international ‘war on
MARK FENWICK
336

terrorism’ rather than on reforming domestic counter-terrorism law is the
distinctive feature of events post-9/11 in Japan.

III
When PM Koizumi met personally with President Bush on 25 September
2001, he confirmed his government’s decision to deploy the SDF abroad in
support of US retaliation for the attacks. In fact, four of the seven ‘immediate
measures’ adopted by the Ministerial Meeting Concerning Measures against
Terrorism in the days following 9/11 directly related to the activities of the
SDF.27 Amongst these measures was the declaration that the government
would enact legislation to allow for the SDF to provide support for US forces
overseas. On 5 October the government agreed to the text of three bills that
would facilitate such deployments and submitted them to the Diet. After
legislative deliberation in both the House of Representatives and the House
of Councilors the package of bills was passed on 29 October. The principle
piece of legislation was the enactment of the Anti-Terrorism Special Measures
Law (ATSML), which came into effect on 2 November 2001.
Three weeks was an extremely short period of legislative deliberation,
particularly for legislation concerning the SDF. This was largely because the
opposition parties – and in particular, traditional opponents of an expanded
role for the SDF, namely the Communist Party and Social Democratic Party –
felt unable, given the circumstances surrounding 9/11, to adopt the kind of
stalling tactics that they customarily utilize.28 The quick passage of the law
invited the suggestion that the government had used the events of 9/11 in order
to enact legislation that would have been extremely difficult, if not impossible,
under ordinary circumstances. Critics pointed to the fact that the Diet had
taken nine months to enact the Peacekeeping Law in 1992 and over a year to
enact legislation to provide US forces with logistic support under the revised
defence guidelines in 1999. This is not to mention earlier efforts to legislate in
this area that had to be abandoned due to political and public opposition.29


27
See above note 2.
28
The politics of pacifism in Japan are complex and cut across party political lines. For
example, former Cabinet Secretary Hiromu Nonaka, one of the most conservative mem-
bers of the ruling Liberal Democrat Party (LDP) and key figure in the Hashimoto faction is
well-known for his strong objection to Japan’s assumption of a greater security role. One
of the governing coalition parties, the New Komei Party – the political wing of Buddhist
sect Sokka Gakkai – also has serious reservations about Koizumi’s security policy. In
contrast, two of the leading factions of the opposition Democratic Party (DPJ), those of
former leader Yukio Hatayama and Ichiro Ozawa, took a rather strong stance in favour of
a more active security role.
29
A detailed review of failed attempts to enact legislation pertaining to the SDF is beyond the
scope of this chapter; for an overview, see Katzenstein, Cultural Norms, ch. 5.
JAPAN’S RESPONSE TO TERRORISM POST-9/11 337

Unlike in other jurisdictions, however, the speed of the legislative process
post-9/11 should not be regarded as a case of populist democracy. The ATSML
was not enacted on a wave of public anger over the attacks, but as a result of
PM Koizumi’s ideological commitment to expand Japan’s security role and,
it seems, direct pressure from the United States. It has been suggested that
the decision to involve the SDF in international counter-terror operations was
prompted, at least in part, by comments made to the Japanese Ambassador
in Washington by Deputy Secretary of State Richard Armitage, who apparently
suggested that Japan should ‘show the flag’ in any future military action.30 Given
that PM Koizumi has constructed his foreign policy around strengthening
ties with the United States often at the expense of relations with his regional
neighbours, he may well have been keen to comply with this request.
Nevertheless, the fact that this kind of story is given credence indicates the degree
to which Japanese security policy is subject to US influence. The dilemma for
Japanese governments – particularly post-9/11 – is in reconciling the reality
of the US–Japan security relationship with the sometimes competing desire to
be a responsible member of the international community.
And yet, read in isolation the ATSML appears to be an uncontroversial
piece of legislation. The purpose of the law is defined as ‘specifying certain
‘‘response measures’’ that enable Japan to contribute actively and effectively
to the efforts of the international community to prevent and eradicate inter-
national terrorism, thereby ensuring the peace and security of the inter-
national community including Japan’.31 This includes (a) ‘measures Japan
implements in support of the activities of the armed forces of the US and
other countries which aim to eradicate the threat of the terrorists responsible
for the 9/11 attacks and thereby contribute to the purpose of the Charter of
the UN’; and, (b) ‘measures Japan implements in a humanitarian spirit based
on the relevant resolutions of the UN’.32
Response measures include three broad categories of activity, namely
‘Cooperation and Support activities’, ‘Search and Rescue activities’ and
‘Assistance to Affected Peoples’.33 Each of these three broad categories is
then defined. Cooperation and Support activities include the provision of
materials and services and other measures in support of foreign forces; Search
and Rescue activities include measures implemented by Japan to search for
and rescue combatants in distress due to combat in the case of the activities of
foreign forces. Assistance to Affected Peoples is defined as the transportation
of necessary provisions, including food, clothing and medicine, medical
services and other humanitarian activities implemented by Japan with regard

30
See G. MacCormack, ‘Japan’s Afghan Expedition’, Japan World, 5 November 2001:
http://www.iwanami.co.jp/jpworld/text/Afghanexpedition01.html.
31
ATSML, Article 1.
32
Ibid., Article 1. 33 Ibid., Articles 2–3.
MARK FENWICK
338

to terrorist attacks.34 All the above measures can be carried out by various
government agencies including the SDF,35 but crucially they must not involve
the ‘threat or use of force’.36 Members of the SDF responsible for any
measures may proportionately use weapons only when an ‘unavoidable and
reasonable cause exists for their use in order to protect the lives of SDF
members or those who have come under SDF control during the implemen-
tation of operations’.37
Response measures can be adopted in the following areas – ‘(a) the
territory of Japan; (b) the high seas and airspace above; and, (c) the territory
of foreign countries’ (subject to the condition that the country consents to
the presence of Japanese forces).38 Significantly, in the case of (b) and (c),
implementation is limited to cases where ‘combat is not taking place or
expected to take place, while Japanese activities are being implemented’.39
The ATSML requires that the Prime Minister ‘seek the approval of the Diet
for all response measures within three weeks of their initiation’. In the event
that the Diet does not approve, any response measure must be ‘terminated
immediately’.40 Finally, the law is subject to periodic legislative review. On
10 October 2003, the Diet confirmed a government request to extend the law
for a further two years.41
Thus far, measures adopted under the ATSML have, at least from a military
point of view, been small-scale. On 9 November 2001 two destroyers and a
supply ship were deployed in the Indian Ocean in support of US Navy
operations. On 25 November, a destroyer, a supply ship and a minesweeper
were also deployed. More controversially, on 16 December 2002 Japan sent a
surveillance class destroyer to the Indian Ocean. Other operations have been
of a similar scale, mostly involving resupply of US and UK vessels, as well as
intelligence gathering. The modest nature of SDF deployments in the ‘war on
terrorism’ highlights that what is at stake here is not necessarily a revival in
Japanese militarism, but rather the status of the Japanese Constitution.42
Complicating discussion of the ATSML, however, is Article 9 of the
Constitution and the history of Japanese aggression that preceded its pro-
mulgation. The renouncing of war and the concomitant prohibition of
maintaining any war potential together constitute one of the fundamental
principles that the occupying US forces imposed on the defeated Japanese

34
Ibid., Article 3(1), 3(2), and 3(3). 35 Ibid., Article 3(4). 36 Ibid., Article 2(2).
37
Ibid., Article 12. 38 Ibid., Article 2(3). 39 Ibid., Article 2(3). 40 Ibid., Article 5.
41
Japan Times, 11 October 2003, 2.
42
There are two main arguments as to why Japanese remilitarization is unlikely, firstly, the
extreme dependence of Japan on the US for security, and secondly, the genuine culture of
anti-militarism that exists amongst a significant proportion of the population in Japan.
On the latter issue, see I. Buruma, The Wages of Guilt: Memories of War in Germany and
Japan (London, Phoenix, 1994); and N. Field, In the Realm of a Dying Emperor: Japan at
Century’s End (New York, Vintage, 1992).
JAPAN’S RESPONSE TO TERRORISM POST-9/11 339

government in August 1945.43 This principle is given effect by Chapter III,
Article 9 of the Constitution:
1. Aspiring sincerely to an international peace based on justice and order,
the Japanese people forever renounce war as a sovereign right of the
nation and the threat or use of force as means of settling international
disputes.
2. In order to accomplish the aim of the preceding paragraph, land, sea,
and air forces, as well as other war potential, will never be maintained.
The right of belligerency of the state will not be recognized
There are other examples of how this principle more generally informs the
Constitution and Japanese law. For example, Article 66(2) of the
Constitution states that the PM and other Cabinet posts must be held by
civilians. The prohibition on ‘involuntary servitude’ found in Article 18 is
understood by constitutional scholars to include conscription to the military
and no legal provision in the Constitution provides for martial law or for
dealing with acts of war such as declaring war or concluding peace. The pre-
war Criminal Code – which in contrast to the Code of Criminal Procedure
was not completely revised during the US occupation – was subject to minor
amendments; notably, those offences that were predicated on the existence of
a war situation were deleted.
It is well known that Article 9 has been an ongoing source of controversy
since the Constitution came into effect on 3 November 1947. A literal inter-
pretation of Article 9 would seem to suggest that the existence of the SDF is
unconstitutional because Article 9(2) contains a clear prohibition on the
maintenance of any kind of military forces or ‘other war potential’.
Certainly, this is the view of most mainstream Japanese constitutional law
scholars. They regard Japan’s acceptance of the terms of the Potsdam
Declaration on 2 September 1945 as crucial. Under the terms of the
Potsdam Declaration, Japan was to be ‘completely disarmed’ and the author-
ity of those who ‘misled the people’ would be eliminated ‘for all time’.44
As John Dower, the most prominent English language historian of post-war
Japan, puts it, Potsdam ‘made clear that disarmament and demilitarization
were not merely to be ‘‘complete’’ but also ‘‘permanent’’’.45
In the 1950s, however, and with the explicit support of a US government
concerned about Soviet expansion in East Asia, Japan began a programme of

43
The other principles were the sovereignty of the people (as opposed to the Emperor) and
the guarantee of fundamental human rights (under the earlier Meiji Constitution all rights
of ‘subjects’ were under reservation of law).
44
Quoted in Dower, Embracing Defeat, 74.
45
Ibid., p. 75. See also, K. Inoue, MacArthur’s Japanese Constitution: A Linguistic and
Cultural Study of its Making (University of Chicago Press, 1991); and S. Koseki, The
Birth of Japan’s Postwar Constitution, (Boulder, Westview Press, 1998).
MARK FENWICK
340

rearmament that has continued through to the present.46 The procedural
obstacles to constitutional reform as well as the political sensitivities sur-
rounding Article 9 meant that an amendment to the Constitution was
unlikely.47 In fact, it is worth noting that no amendment of the Japanese
Constitution has ever been enacted. Instead, the government adopted an
interpretation of Article 9 in which they denied that the SDF constituted
‘forces’ or ‘other war potential’ prohibited by Article 9(2). The logic of this
position derives from the argument that all sovereign nations – including
Japan – enjoy an ‘inherent right’ of self-defence in international law.48 This
principle is expressly stated in Article 51 of the UN Charter although it also
has a basis in customary international law.49 Since the Constitution does not
expressly prohibit the possession of a minimum level of armed strength
necessary to exercise the right of self-defence, the maintenance of the SDF
for the purpose of self-defence is constitutional.
In order to understand the Japanese government’s position it is important
to distinguish between an individual right of self-defence and a right of
collective self-defence. An individual right of self-defence refers to the right
of a country which is directly attacked (e.g. Japan) to repel such an attack,
whereas the right of collective self-defence refers to the right of Japan, in a
situation where Japan is not directly attacked, to deem an attack against
another country that is in an alliance with Japan (e.g. US) as an attack on
itself and then counter-attack. Over the course of the last five decades, the
Japanese Government and Defence Agency have consistently taken the

46
For details of this expansion, see Katzenstein, Cultural Norms, chs. 5–6. Fearful of
Communist insurrection, the occupying US forces authorized the creation of a 75,000
National Police Reserve (NPR) to safeguard internal security in the late 1940s. Following
the end of the US occupation in 1952 and the conclusion of the US – Japan Security
Treaty, the NPR was transformed into the SDF. It seems the name SDF was adopted to
indicate the defensive nature of the force. It is often suggested that Japan has the second
largest military budget in the world: see, for example, D. Hayes, Japan: The Toothless Tiger
(Tokyo, Tuttle, 2003), p. 131, although such claims are difficult to verify. The SDF
currently consists of around 150,000 ground troops, a maritime force of 43,000 troops
and 160 vessels, and an air force of 45,000 troops and 5,100 planes.
47
The procedure for amending the Constitution is found in Article 96: ‘Amendments to this
Constitution shall be initiated by the Diet, through a concurring vote of two-thirds or
more of all the members of each House and shall thereupon be submitted to the people for
ratification, which shall require the affirmative vote of a majority of all votes cast thereon,
at a special referendum or at such election as the Diet shall specify. (2) Amendments when
so ratified shall immediately be promulgated by the Emperor in the name of the people, as
an integral part of this Constitution.’
48
See generally I. Brownlie, International Law and the Use of Force by States (Oxford
University Press, 1963), 231–80, and ‘The Nicaragua Case’ 1986 ICJ Reports 14.
49
‘Nothing in the present Charter shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the United Nations’ UN
Charter, Article 51.
JAPAN’S RESPONSE TO TERRORISM POST-9/11 341

position that maintaining military force necessary for individual self-defence
is constitutional, but that collective self-defence is not permissible under
Article 9. The following is an indicative statement of the government view:
The Constitution, upholding pacifism, sets forth in Article 9 the renuncia-
tion of war, non-possession of war potential and denial of the right to
belligerency of the state. As long as Japan is a sovereign state, it is recognized
beyond doubt that the provision in the article does not deny the inherent right
of self-defence that Japan is entitled to maintain as a sovereign nation.
Since the right is not denied, the government remains firm in the belief that
the Constitution does not inhibit the possession of the minimum level of armed
strength necessary to exercise the right of self-defence. On the basis of such
understanding the government has adopted the exclusively defence-oriented
policy as its basic policy of national defence and has maintained self-defence
as an armed organization, and has taken steps to improve its capabilities
and to ensure their efficient operation. These measures do not present any
constitutional problem.50

Although official documents, such as this, do not explicitly refer to individual
self-defence, the phrase ‘exclusively defence-oriented policy’ has always been
understood in this way both by the government and its critics. The govern-
ment interpretation of Article 9, therefore, derives the constitutionality of the
maintenance of the minimum necessary level of armed strength for indivi-
dual self-defence from the existence of Japan’s right in international law to
defend itself if directly attacked.
Further support for the government’s view can be found in the legislative
history of Article 9. Of crucial importance in this discussion is the fact that the
original draft of Article 9 was amended – with, it should be noted, the consent
of the occupying US authorities – during the final stages of its deliberation in
the Diet.51 The original English language version of Article 9 drafted by the
occupying forces and presented to the Diet was as follows:
1. War as a sovereign right of a nation, and threat or use of force, is forever
renounced as a means of settling disputes with other nations.
2. The maintenance of land, sea and air forces, as well as other war
potential, will never be authorized. The right of belligerency of the
state will never be recognized.
Discussion of the amendment process is complex and involves rather subtle
questions of language, but the government position is that the effect of the

50
Japanese Defence Agency, Annual Report (Tokyo, Japan Times, 1993), 63–7, 127–8
(emphasis added).
51
The 1947 Constitution was formally enacted as an amendment to the 1889 Meiji
Constitution, and so was subject to limited legislative review. For more on the history
of legislative debate surrounding Article 9, see Dower, Embracing Defeat, 75–90.
MARK FENWICK
342

so-called Ashida amendment was to clearly establish a right to individual
self-defence in contrast to the original draft. According to this argument, the
first clause of the revised version of Article 9 establishes international peace as
the article’s objective. The words added to the second clause as a result of the
Ashida amendment – namely ‘In order to accomplish the aim of the preced-
ing paragraph’, indicate that what was being renounced was, in contrast to
the earlier draft, not the maintenance of military force per se, but the main-
tenance of a capacity for an aggressive war that would disturb international
peace. This, according to the government view, left open the possibility that
military force necessary for self-defence would be constitutional.
Although historians as well as constitutional lawyers have repeatedly
criticized the government’s position on Article 9, the courts have taken a
more cautious view.52 The leading cases on this question have generally
accepted the government position that Article 9 does not proscribe the
country’s right of individual self-defence. On the question of whether a
right to maintain military force can be derived from this right of self-defence
there is something of a division between courts of first instance who have on
a number of occasions rejected the government position, and appeal courts
who have consistently refrained from ruling on this matter on the grounds
that it is a political matter.
The ‘exclusively defence-oriented’ interpretation of Article 9 thus provided
the justification with which Japanese governments conducted defence policy
during the Cold War. This proved to be both an enabling and disabling inter-
pretation of Article 9. On the one hand, the ‘minimum level of armed strength
necessary to exercise the right of individual self-defence’ is an unclear standard
that on a critical view has allowed the Defence Agency to construct a military
capability free from any kind of restriction on the scale or composition of the
SDF. And yet, although this justification for the existence of the SDF has imposed
little in the way of quantitative restriction on Japanese rearmament, it has
imposed limits of a different order, namely in restricting the areas and circum-
stances where the SDF may be deployed. By formulating the justification for
the SDF’s existence in terms of individual self-defence, the government has been
limited in how the SDF may be utilized. Most significantly, this has meant
that any overseas deployment of the SDF, including the use of the SDF in support
of an ally who is under attack (i.e. collective self-defence) has been considered to
be unconstitutional even by the government and their supporters.


52
The leading Supreme Court judgments relating to Article 9 can all be found in translation
in L. W. Beer and H. Itoh (eds.), The Constitutional Case Law of Japan 1970 through 1990
(Seattle, University of Washington Press, 1996). On the topic of judicial independence in
Japan more generally, see J. Haley, ‘Judicial independence in Japan revisited’ (1995) 25
Law in Japan 1, and M. J. Ramseyer and E. Rasmussen, Measuring Judicial Independence:
the Political Economy of Judging in Japan (University of Chicago Press, 2003).
JAPAN’S RESPONSE TO TERRORISM POST-9/11 343

However, over the course of the 1990s the self-defence justification became
increasingly strained in the face of the changing geopolitical situation. Of
particular importance in this context was international criticism of the
Japanese role in the first Gulf War of 1990–91. Although Japan made sig-
nificant financial contributions, they did not contribute any military assis-
tance to coalition forces on the grounds that it was incompatible with the
‘exclusively defence-oriented policy’. Stung by US criticism of this so-called
‘checkbook diplomacy’, the government introduced a number of new mea-
sures. Foremost amongst these were the Law Concerning Cooperation with
UN Peacekeeping Operations and Other Operations Law of 1992 (the PKO
Law) and the Law Concerning Measures to Maintain the Peace and Security
of Japan in Situations Surrounding Japan Law of 1999 (SASJL).
The purpose of the PKO Law was to provide appropriate and prompt
cooperation for UN Peacekeeping Operations and humanitarian relief opera-
tions. Under the terms of the PKO Law the overseas deployment of the SDF
became legally possible for the first time provided that five conditions were met,
including the existence of a UN Security Council resolution authorizing the
peacekeeping operation and the existence of a ceasefire agreement. Moreover,
the use of weapons is limited to the minimum necessary in order to protect the
lives of SDF personnel. Based on this law, the SDF have participated in PKOs in
Cambodia (September 1992–September 1993), Mozambique (May 1993–
January 1995), the Golan Heights (February 1996–present), and East Timor
(March 2002–present).53 SASJL was enacted in 1999 and made it possible for
the SDF to provide so-called ‘Rear Area Support’, i.e. the provision of logistical
support, in cooperation with US forces in areas ‘surrounding Japan’ that may
lead to a direct military attack on Japan if they are not addressed.54
However, under the terms of the PKO Law and the SASJL it was not
possible for the government to take measures in support of US forces outside
of Japan or ‘areas surrounding Japan’. Under the PKO Law there were clear
limits to the overseas deployment of the SFD, notably the existence of a
specific UN resolution and a ceasefire agreement. Under the terms of
SASJL, SDF activities were limited to ‘areas surrounding Japan’. Although
these reforms facilitated the overseas deployment of Japanese forces – which
in itself is clearly controversial from the point of view of the ‘exclusively
defence-oriented policy’ – the situations authorized were still clearly


53
It is worth noting the shift in public opinion that has occurred as a result of these activities.
According to government surveys only 20.6% of the population ‘approved’ of Japan’s
participation in PKOs in 1991 compared with 40.5% in 2000. The number of those
opposed decreased from 18.8% in 1991 to 2.7% in 2001. See East Asian Strategic Review
2003 (Tokyo, Japan Times) 311.
54
This law gave legal effect to the 1997 Guidelines negotiated between Japan and the US
under the terms of the US–Japan Security Agreement.
MARK FENWICK
344

restricted. The ATSML removed these limits and enables the government to
deploy the SDF on completely new grounds, based neither on cooperation
with the UN nor solely on the basis of US–Japan cooperation in defending
Japan and surrounding areas. The key question then is whether the new law is
inconsistent not only with the clear meaning of Article 9, but – perhaps more
significantly – with the previously held government interpretation of Article 9.
In addressing how the ATSML marks a break with earlier policy, critics of the
law pointed to a number of issues.55 Most significantly, Article 2 of the ATSML
adds the open-ended category of the ‘territory of foreign countries’ and ‘the high
seas and space above’ to the areas where the SDF can lawfully operate. This goes
beyond the PKO Law and the SASJL and makes it possible for the government to
deploy the SDF overseas in the name of international cooperation against
terrorism without any geographical restrictions or a clear UN mandate.
Although SD deployment is limited to activities that aim to ‘eradicate interna-
tional terrorism’ and thereby ‘contribute to the purpose of the UN Charter’, this
is an open-ended and unclear standard. Particularly, when one considers that
international terrorism is not clearly defined and the reference is to the UN
Charter rather than specific Security Council Resolutions.
The ATSML would also appear to be incompatible with the previously held
government interpretation of Article 9 as it would seem to permit ‘response
measures’ in support of collective self-defence and perhaps even pre-emptive
attacks if they are conducted with the goal of eradicating terrorism. This
would involve stretching the earlier concept of self-defence – which is already
a contentious one given the plain meaning of Article 9 – to breaking point.
The law also provides that implementation shall be limited to cases where
combat is not taking place. However, it can be difficult to distinguish between
areas of combat and areas of non-combat, particularly in cases of terrorism.56
In addition, the ATSML emphasizes that ‘response measures’ do not
constitute the use of force as prohibited by Article 9 by providing in Article 2(2)
that these measures must not constitute a ‘threat or use of force’. The issue
here relates to the kind of activities that are specified as cooperation and
support activities. As mentioned above, these include supply, transportation,
repair and maintenance, medical services and communication. These would
generally be thought of as logistical activities. However, since the use of force

55
The following discussion draws upon the contents of an open letter of 9 October 2001
signed by over fifty Japanese constitutional law scholars written in protest over the
ATSML. For the Japanese language version, see http://www.jca.apc.org/kenpoweb/
appeal.html. It also uses arguments found in a special issue of the Japanese language law
journal Jurist 2004 vol. 1260, which discusses Article 9 post-9/11.
56
A similar restriction exists in the Special Law relating to Iraq. SDF forces can only be
deployed if combat has ceased. In spite of the worsening security situation in Iraq, the
Japanese government has argued that combat is not taking place in the area where the SDF
forces are deployed, and that the deployment is therefore lawful.
JAPAN’S RESPONSE TO TERRORISM POST-9/11 345

is impossible without such logistical support – that is to say logistical support is
a necessary pre-condition for the exercise of military force – the distinction that
the law makes between ‘response measures’ and the ‘use of force’ has been
questioned. A rather graphic illustration of this particular argument was posed
by one newspaper editorial when it wondered whether a Japanese vessel would
be permitted to provide fuel to US destroyers launching cruise missiles against
terrorist training camps in NW Pakistan.57
Finally, under the ATSML the implementation of response measures by the
SDF can be taken without advance parliamentary approval and an after-
the-event validation of the Diet is permitted. This is to be contrasted with
the PKO Law and the SASJL, which both provide for advance Diet approval
for the overseas deployment of the SDF. The argument has been made that in
this regard civilian control of the SDF has been diminished. Given the history
of the Japanese military, this is an extremely sensitive question and it is not
surprising that this was one aspect of the law that was strongly contested in
the, albeit brief, parliamentary deliberations.
The government was clearly aware that in enacting the ATSML they were
stretching the self-defence justification, and acknowledged that a different
justification for the constitutionality of the SDF was required. The argument
that the government proposed focused on the suggestion that there is a ‘gap’
between the Preamble of the Constitution and the earlier interpretation of
Article 9. The government’s recourse to the Preamble is interesting, not least
because the Preamble has often been utilized in support of the argument that
Article 9 amounts to an absolute prohibition and the conclusion that the SDF
is unconstitutional. However, the new government position has been to
suggest that a fundamental principle underlying the Preamble is the principle
of international cooperation.58 It is argued that when read in the context of
the Preamble, Article 9 can legitimately justify the use of force not only in the
case of individual self-defence but also in the broader case of international
cooperation in pursuit of peace and security (i.e. collective self-defence).
Overseas deployment of the SDF in support of operations aimed at eradicat-
ing terrorists is now considered constitutional by the Japanese government.
Constitutional scholars have met this suggestion with scepticism, arguing that
the new government position means that Article 9 is meaningless as almost any
joint deployment of the SDF could be justified on the grounds of international

57
Nihon Keizai Shimbun, 11 November 2001.
58
It has been suggested that this can be found most clearly, for example, in the following
section of the Preamble, ‘We desire to occupy an honored place in an international society
striving for the preservation of peace, and the banishment of tyranny and slavery, oppression
and intolerance for all time from the earth . . . We recognize that all peoples of the world
have the right to live in peace, free from fear and want. We believe that no nation is
responsible to itself alone, but that laws of political morality are universal; and that
obedience to such laws is incumbent upon all nations . . .’ (emphasis added).
MARK FENWICK
346

cooperation. Critics argue that there is no ‘gap’ between the Preamble and
Article 9. Quite the contrary, the principles of the Preamble – namely pacifism
and an absolute rejection of military force – are to be found in every Article of the
Constitution, including Article 9. According to this view, it is a unique feature of
the so-called ‘Peace Constitution’ that it adopts international cooperation based
on the principle of pacifism. As such, critics have questioned both the legality
of the government’s position and the belief that military force, even if it is
cooperative, can ever succeed in eradicating terrorism.
One further point of discussion concerns the relationship between interna-
tional law, Article 9 and the ATSML. As was mentioned above, successive
Japanese governments have relied upon the existence of an ‘inherent right’ of
self-defence in international law in arguing that the SDF is constitutional in
so far as it adopts an ‘exclusively defence-oriented policy’. As such, the
government view of Article 9 imposed a more severe standard than Article
51 of the UN Charter since only acts of individual self-defence are permitted.
Given the fact that Article 51 explicitly mentions collective self-defence, is it
possible for the government to rely upon international law as a legal basis for
the ATSML?
Chapter X (Articles 97–99 of the Constitution) establishes the hierarchy of
norms in Japanese law. Of crucial importance in this context is Article 98:
1. This Constitution shall be the supreme law of the nation and no law,
ordinance, imperial rescript or other act of government, or part thereof,
contrary to the provisions hereof, shall have legal force or validity.
2. The treaties concluded by Japan and established laws of nations shall be
faithfully observed.
The ‘prevailing view’ is that the effect of this provision is that the
Constitution has priority over international law.59 The Cabinet’s power to
conclude treaties and the Diet’s power to approve them derive from the
Constitution, therefore it is logically not possible to justify the superiority
of a treaty.60 On this view, Article 51 of the UN Charter cannot provide a legal
basis for the exercise of collective self-defence, if Article 9 is understood (as it
has been even by the government) to exclude such acts.
The alternative (minority) view is to suggest that Article 98(2) constitutes
a limitation on 98(1).61 That is to say, treaties and the ‘established laws of
nations’ (i.e. customary international law) have priority over the Constitution.
This view leads to the conclusion that Article 51 of the UN Charter would have

59
H. Oda, Japanese Law (Oxford University Press, 2001), 50.
60
A further argument in support of this view is that the procedure for amending the
Constitution is much more difficult than that for concluding treaties.
61
See, for example, K. Sorimachi, ‘Internationalization and globalization demand changes
in judicial interpretation’ (2003) 21st Century Shape of Japan, No.3 (http://www.lec-
jp.com/speaks/info_003.htm).
JAPAN’S RESPONSE TO TERRORISM POST-9/11 347

superiority over the provisions of Article 9 and that collective self-defence is
permitted as a result of Japan’s ratification of the Charter. It is interesting to
note that the Japanese government has not adopted this line of argument,
preferring instead the reinterpretation of Article 9 discussed above.
Although international law may provide a legal basis for acts of collective
self-defence, it is a much more controversial question whether it would be of
assistance to the Japanese government if the response measures adopted
under the ATSML were in support of pre-emptive action, e.g. if the SDF
were to re-fuel a US aircraft involved in a pre-emptive strike against a
terrorist group located in a third country. As has been well-documented,
post-9/11 the US administration has actively sought to extend the scope of
the right of self-defence to include action in anticipation of a terrorist attack
against any state that willingly harbours such terrorists.62 Such acts would
appear to be problematic from the point of view of Article 51 of the UN
Charter, as well as customary international law.63 If the Japanese government
were to rely upon international law as the basis for action under the ATSML
they might, at some stage, be obliged to defend the view that such pre-
emptive strikes are permissible in international law. Given the delicacy of
this issue within the international community, this is a course of action the
government would presumably be unwilling to take. Reinterpreting the
Constitution to broaden the scope of Article 9 would seem to be a more
expedient approach.
The ATSML has thus resulted in a reinterpretation of Article 9 that is hard
to reconcile with the plain meaning of the text or, perhaps more importantly,
the previous government position that limited the SDF’s activities to defend-
ing Japan in the event of a direct attack. This more assertive approach reflects,
in part, the ideological preferences of the Koizumi administration, as well as
the demands of the US–Japan security relationship post-9/11. By presenting
military force as a legitimate and effective means of responding to terrorism,
the Koizumi administration seems to stand square with current US thinking
that regards terrorists as hybrid paramilitaries who are engaged in a form of
quasi-warfare rather than thinking of terrorist acts as crimes and terrorists as
criminals. The message that is communicated to the Japanese public by the
ATSML about the nature of the current terrorist threat and the most effective
response to that threat seems designed to confirm anxieties that may lead
many to question the values found in Article 9.
The policy of strong support for US military measures against suspected
terrorists and their supporters continued with the enactment of The Law
Concerning Special Measures on Humanitarian and Reconstruction

62
See, for example, M Byers, ‘Terrorism, the use of force and international law after 9/11’
(2002) 51 International and Comparative Law Quarterly 401.
63
Ibid., 413–4.
MARK FENWICK
348

Assistance in Iraq in July 2003.64 Under the terms of this law, the SDF are
permitted to undertake humanitarian and reconstruction assistance in ‘non-
combat zones’ in support of the US-led occupation.65 The decision to actually
deploy troops was repeatedly postponed largely as a result of public opposi-
tion to such a move. However, after the killing of two Japanese diplomats on
29 November 2003 in a terrorist attack inside Iraq, the government decided to
push ahead with the deployment, citing the importance of maintaining
Japan’s alliance with the US and cooperating with the international commu-
nity. In March 2004, 550 ground troops arrived in Samawah, South East Iraq
where they engaged in ‘reconstruction activities’, principally involving the
reconnection of water supplies.
A final illustration of the government’s more aggressive stance on security
issues occurred more recently in July 2003 when a Law to Respond to Armed
Attacks (so-called emergency legislation) was enacted. As mentioned above,
the Constitution contains no provision for the suspension of the rule of law
in wartime or other national emergency. Since 1977 governments have
unsuccessfully attempted to pass laws that would delimit the domestic
powers of the PM and the role of the SDF in the event of an armed attack
on Japan. The recent escalation of tensions with North Korea highlighted the
need for some contingency plans. After failing once in the 2002 legislative
session, the Koizumi administration succeeded in 2003 in passing a package
of measures that delimited the powers of the state and the role of the SDF
in the event of such an emergency situation.


IV
In conclusion, it would appear that the Japanese government is now con-
fronted with a choice. On the one hand, it could choose to amend Article 9
in order to reflect the government’s preferred interpretation. On the other,
it could leave the provision unchanged and continue to interpret the text
in a way that re-defines the scope of self-defence to include measures in


64
Japan was quick to express its support for the US-led attack on Iraq. In February 2003,
when many members of the UN Security Council were expressing reluctance to approve a
new resolution that would have authorized an attack, Japan declared its backing for such a
move. And in May 2003, when Koizumi met with President Bush, he promised Japanese
help with the post-war reconstruction effort, implicitly suggesting that this would include
dispatch of the SDF. The negative effects of this poicy were highlighted after the 11 March
2004 train bombings in Madrid when the group with alleged links to the al Qaeda terrorist
network that claimed responsibility for the attack named Japan as a potential future target,
Japan Times, 13 March 2004, 2.
65
The Law Concerning Special Measures on Humanitarian and Reconstruction Assistance
in Iraq, 2003, Article 2.
JAPAN’S RESPONSE TO TERRORISM POST-9/11 349

support of collective and possibly pre-emptive action. Current indications
are that for the moment the government will pursue both options. Certainly,
the enactment of the laws on Iraq and the emergency legislation indicates that
this trend to enact laws that expand the scope of SDF activity is set to
continue. And yet, the government are also preparing the groundwork for
constitutional amendment. In January 2000, a Constitutional Review Panel
was established to examine a wide range of proposals, including revision of
Article 9. It is scheduled to conclude deliberations in 2005 and, if agreement is
reached, to introduce proposals to the Diet in 2008. However, as was men-
tioned above, the Constitution has never been amended and the high proce-
dural obstacles found in Article 96 (a two-thirds majority in both chambers of
the Diet and a national referendum) make any change politically difficult. On
a conceptual level, it is interesting to note that whereas many continental
European constitutions have provisions explicitly prohibiting amendments
that contradict fundamental principles, the Japanese Constitution has no
such limitation. Despite the absence of an explicit provision, basic principles
such as sovereignty of the people, respect for human rights and pacifism are
understood by most constitutional scholars to be unchangeable even by
formal amendment.66 The results of current attempts at constitutional
reform are, therefore, difficult to predict.67 It goes without saying that the
status of the SDF is an issue that arouses a great deal of controversy inter-
nationally, particularly in Asia. However, perhaps less well-documented, at
least in the international news media, is reaction inside Japan where a
significant section of the population – including members of the governing
coalition – are troubled by PM Koizumi’s decision to actively involve the SDF
in international conflicts of this kind, and to align himself so closely with the
US doctrine that regards military force as the principle means for responding
to terrorism.
It is often suggested that terrorism can be successful when it provokes a
state into a response that exposes the rule of law as hypocritical and con-
tingent upon circumstances. The Japanese response to 9/11 is interesting
because it has not involved the adoption of aggressive domestic counter-
terrorism policies, in spite of widespread criticism of existing law. However,
9/11 has resulted in a controversial reinterpretation of Article 9 that has,
in the view of critics, undermined the promise of the ‘Peace Constitution’.


66
See Oda, Japanese Law, 37–9.
67
For the moment, the Japanese public appear to be comfortable with the government’s
approach. Public opinion polls indicate support for the government’s policy towards
terrorism, including the overseas deployment of the SDF in the context of counter-
terrorism. For example, a survey conducted by the Mainichi newspaper found 63% for
the ATSML. See Y. Tasumi 2002, ‘Japan’s homeland security: police or SDF?’ Center for
Strategic and International Studies, http://www.csis.org/japan/japanwatch/jw0204.htm.
MARK FENWICK
350

The government has affirmed a position regarding Article 9 that is hard to
reconcile with the plain meaning of the text, or even the earlier ‘exclusively
defence-oriented’ interpretation. By exposing the lack of normative force
behind Article 9, the attacks of 9/11 have, it could be argued, weakened
constitutional rule in Japan. Not by provoking a ‘terror against terror’, but
by instigating a controversial reinterpretation of a constitutional norm that
apparently negates its intended effect.
17

Legal and institutional responses to terrorism in India
V. VIJAYAKUMAR




I. Introduction
Few countries have seen the ugly face of terrorism to the extent that India has since
its independence in 1947. The situation in Jammu and Kashmir, the North-East
states, the naxalite movement in Andhra Pradesh and Orissa, developments in the
states of Punjab and West Bengal, recent violence in Gujarat and bomb blasts in
Bombay have constantly challenged constitutional values and institutions. India
has suffered terrorists’ attacks on civilian, military and other governmental
institutions (including the attack on the Indian Parliament) and on individuals,
resulting in death and destruction. There has been hostage taking, and damage
to property. Two examples will suffice. In Jammu and Kashmir alone, during
the third week of May 2004, there were 29 civilian, 34 security personnel and 19
terrorist deaths, making a total of 82 deaths in only one week. The North-Eastern
states have the dubious distinction of being home to Asia’s longest running
insurgency. With about 30 banned insurgency groups, the states of Assam,
Manipur, Tripura and Nagaland have witnessed 11,000 casualties. During the
first nine months of 2003, more than 300 people fell victim to the insurgency in
the state of Assam alone. Religious and ideological differences, and demands for
autonomy have been the major reasons for terrorism in India.
These developments have compelled policy-makers in India to respond
appropriately, both domestically and through regional initiatives such as the
South Asian Association for Regional Cooperation (SAARC) Regional
Convention on Suppression of Terrorism. The need for additional governmental
powers to deal with terrorism has proven irresistible. Greater powers create
opportunities to abuse those powers. However, aspects of Indian democracy
operate to ameliorate the worst excesses: a progressive and living Constitution,
periodic elections, judicial independence, press freedom, and a strong opposi-
tion both at the centre and in the states. What follows is a brief account of India’s
legal response to terrorism, and in particular recent specific legislation dealing
with terrorism. It advances the view that India has, in recent years, been able,
more or less, to steer an acceptable course between giving too little power to the
government so that it is unable to deal with terrorism, and too much power so
that an intolerable violation of human rights is risked.

351
V. VIJAYAKUMAR
352

II. Legal response to terrorism
After India’s independence in 1947, many of the colonial statutes were
modified and adapted. Many are relevant to tackle and punish terrorists in
India even today, such as the Explosive Substances Act 1908.1 More specific
laws include the Bengal Suppression of Terrorist Outrages (Supplementary)
Act 1932,2 and the Bombay Public Security Measures Act 1947.3 Some of
these remain on the statute book.
In 1950, the year of the commencement of the Constitution, the Preventive
Detention Act was enacted.4 Although the Minister promised that this Act would
be in force for only one year, it existed till it was substituted by the Maintenance of
Internal Security Act 1971.5 The constitutional validity of the Preventive
Detention Act 1950 was upheld by the Supreme Court in A. K. Gopalan v. State
of Madras.6 In between, the Armed Forces (Special Powers) Act 19587 and the
Unlawful Activities (Prevention) Act 19678 were enacted and their validity upheld
by the Supreme Court in Naga People’s Movement of Human Rights v. Union of
India9 and Jamat E-Islami Hind v. Union of India10 respectively. The Maintenance
of Internal Security Act was enacted during the war with Pakistan and it con-

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