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Article 9 Renunciation of War

Prime Minister Shinzo Abe emphasized 23 October 2017 that the governing coalition parties would seek a broad consensus in revising the Constitution. Abe held a news conference after the coalition gained over two-thirds of the Lower House seats in the 21 October 2017 election, more than enough for the Diet to propose any Constitutional revisions.

Despite the coalition's two-thirds majority, Abe said it is necessary to build a wide consensus with opposition parties. He promised to make efforts to gain national understanding so that proposals will receive a majority of support in any national referendum. Abe reiterated that he won't set a timetable for constitutional revisions, although he said in May that he strongly wished to see a new Constitution come into effect in 2020.

Abe said the Liberal Democratic Party will work out concrete articles based on its election pledges on revisions before proposing a draft to the Diet's review panels. The 4 pledges include stipulating the Self-Defense Forces' constitutionality.

Japan emphasized the cause of the "liberation of Asian peoples" in order to justify its operations in alien territories and to gain the support of their nationalist elements for the war effort. Less often noticed is the fact that this justification of the war was also necessary to secure the cooperation of the Japanese people with their own government. This campaign for the "liberation of Asia" succeeded in overcoming domestic suspicions about the prolonged war with China and a reluctance to fight against the technologically superior Allies. The ideology of the Greater East Asia Co-Prosperity Sphere developed into an indispensable tool for inspiring the Japanese population to fight and endure wartime difficulties. The vast majority of the Japanese people accepted this ideology. But the contradiction between liberation theory and colonial practice haunted the Japanese throughout the war.

Under the direction of General Douglas MacArthur, the Supreme Commander for the Allied Powers (SCAP), Japan's army and navy ministries were abolished, munitions and military equipment were destroyed, and war industries were converted to civilian uses. War crimes trials found 4,200 Japanese officials guilty; 700 were executed, and 186,000 other public figures were purged.

Although the United States played a major role in both the Nuremberg and Tokyo Trials, having had her legal views and opinions well pronounced, she virtually dominated the latter, in which her policy toward Japan took precedence. The Tokyo Trial was based upon the concepts of war crimes initiated at the Nuremberg Trial, ie, Crimes against Peace, Crimes against Humanity, and War Crimes and Planning and Waging Aggressive War. The Tokyo Trial lasted for two and a half years and closed on 04 November 1948, with its sentences meted out to 28 Class A war criminals, including seven death sentences.

Of the 70 Japanese apprehended for Class A war criminals, only the first group of 28 people were brought to trial, the rest which was divided into the 2nd and 3rd groups awaited to be tried in Sugamo prison of Tokyo. The 2nd group of 23 war criminals and the 3rd group of 19 war criminals were notorious, industrial and financial magnates, warmongers engaged in ammunition trade and trafficking in drugs, as well as some less known, but equally rabid, barbaric leaders in military, political, and diplomatic spheres. The Tokyo Trial also was overshadowed by the Chinese civil war and the emerging Cold War that engulfed the American-Soviet relations. All this led to the Trial of the Class A war criminals unfinished and a hasty close of the Trial. All the uncondemned Class A war criminals were set free by Gen. MacArthur in 1947 and 1948.

MacArthur pushed the government to amend the 1889 Meiji Constitution, and on May 3, 1947, the new Japanese constitution (often called the "MacArthur Constitution") came into force. Constitutional reforms were accompanied by economic reforms, including agricultural land redistribution, reestablishment of trade unions, and severe proscriptions on zaibatsu.

One distinctive feature of the constitution, and one that has generated as much controversy as the status of the emperor, is the Article 9 "No War" clause. It contains two paragraphs: the first states that the Japanese people "forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes"; the second states that "land, sea, and air forces, as well as other war potential will never be maintained." Some historians attribute the inclusion of Article 9 to Charles Kades, one of MacArthur's closest associates, who was impressed by the spirit of the 1928 Kellogg-Briand Pact renouncing war. MacArthur himself claimed that the idea had been suggested to him by Prime Minister Shidehara. The article's acceptance by the Japanese government may in part be explained by the desire to protect the imperial throne. Some Allied leaders saw the emperor as the primary factor in Japan's warlike behavior. His assent to the "No War" clause weakened their arguments in favor of abolishing the throne or trying the emperor as a war criminal.

The origins of Article 9 in the Japanese Constitution can be found in the second of the three basic points in "MacArthur Notes" February 3, 1946. This point states in part that "Japan renounces [war] as an instrumentality for settling its disputes and even for preserving its own security." However this principle was considered unacceptable as it constitutionally denied even the right of self-defense which international law admitted , and it was removed from the "GHQ Draft" (submitted February 13, 1946). "GHQ Draft Proposal" and GHQ Original Draft shows that the present Article 9 was at first written in the Preamble and then was taken out to become Article 1. This reflected the intentions of MacArthur, who hoped to draw the world's attention to the principle of pacifism. However, in the GHQ Draft that followed, the Chapter on the "Emperor" was moved to the top as a sign of respect, and this Article was inserted as Article 8 ("Meeting of Whitney with Matsumoto February 22, 1946).

The Japanese Government, based on the GHQ Draft, drafted "March 2 Draft," then after negotiations with GHQ made the first announcement to the people as the"Outline of a Draft for a Revised Constitution" on March 6. On April 17, the government published the "Draft for a Revised Constitution" which was formatted with articles. In this draft, Article 9 was stated as follows: "War, as a sovereign right of the nation, and the threat or use of force, is forever renounced as a means of settling disputes with other nations. 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 not be recognized."

The Bureau of Legislation produced hypothetical dialogues in parallel for the deliberations in the Privy Council and the Imperial Diet. In these dialogues, Article 9 renounced any kind of war regardless of whether it was an act of aggression or defense. However, it was noted that some form of "emergency necessity" based on the right of self-defense or actions that would be considered "justifiable self defense" could not be denied.

In the Privy Council's deliberations, problems surrounding defense actions based on the right of self-defense were discussed. Regarding these deliberations, the government (Minister of State Matsumoto) argued that "self defense itself is not prohibited by the constitution ("Records of the Privy Council Committee").

In the Imperial Diet, first the House of Representatives added the clause "Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right" to the first paragraph of Article 9 because it was determined that, Japan's renunciation of war, as written in the government proposal "Bill for Revision of Imperial Constitution" seemed to have been done reluctantly. They also rewrote the beginning of the second paragraph to state, "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. ("Bill for Revision of Imperial Constitution" Revised and Passed by the House of Representatives ).

Specifically, note should be made of the inclusion at the beginning of the second paragraph of the clause "In order to accomplish the aim of the preceding paragraph" (which became known as the "Ashida Amendment" because the proposal for the amendment bore the name of Hitoshi Ashida, the chairman of the committee in which it was discussed). The addition of this clause made the FEC and GHQ assume that Japan would be able to maintain a defense force ("Transcript of the 27th meeting of FEC"). As a result of the FEC requesting that "all cabinet ministers should be civilians," GHQ so directed the Japanese Government, which then included the Civilians' Clause in Article 66 during Deliberations in the House of Peers. Even after the inclusion of the Ashida Amendment, "In order to accomplish the aim of the preceding paragraph," the Japanese Government did not interpret it as an exceptional change. This was because, while the first paragraph denied aggressive acts of war, it did not deny acts of war in self defense. But the second paragraph, by effectively prohibiting Japan from maintaining armed forces and the right of belligerency, ultimately would make it impossible to carry out a war of self defense.

In 1950, immediately after the outbreak of the war in Korea, Japan established the National Police Reserve. In 1952, it was reorganized as the National Safety Force and then the Coastal Safety Force was established. Then, in 1954, the Self Defense Forces were founded. Its "force" grew as it went from a "police force" to "defense forces" and this caused some serious opposition in how to interpret Article 9 of the Constitution. Following the end of the cold war in the 1990s, Japan became involved in a fluctuating situation in which problems surrounding Article 9, such as its interpretation and its application, became a serious issue that continues to dog the government even to this day.

Article 9 has had broad implications for foreign policy, the institution of judicial review as exercised by the Supreme Court, the status of the Self-Defense Forces, and the nature and tactics of opposition politics. During the late 1980s, increases in government appropriations for the Self-Defense Forces averaged more than 5 percent per year. By 1990 Japan was ranked third, behind the then-Soviet Union and the United States, in total defense expenditures, and the United States urged Japan to assume a larger share of the burden of defense of the western Pacific. Given these circumstances, some have viewed Article 9 as increasingly irrelevant. It has remained, however, an important brake on the growth of Japan's military capabilities. Despite the fading of bitter wartime memories, the general public, according to opinion polls, continued to show strong support for this constitutional provision.

The Government's view on the purport of Article 9 of the Constitution is that the self-defense capability that Japan is permitted to possess is limited to the minimum necessary by the constitutional limitations. The specific limit of the minimum necessary level of armed strength for self-defense varies depending on the prevailing international situation, the standards of military technology and various other conditions. However, whether or not the said armed strength corresponds to "war potential" stipulated in paragraph 2 of Article 9 of the Constitution is an issue regarding the total strength that Japan possesses. Accordingly, whether the SDF are allowed to possess some specific armaments depends on the judgment whether its total strength will or will not exceed constitutional limitations by possessing such armaments.

But in any case in Japan, it is unconstitutional to possess what is referred to as offensive weapons that, from their performance, are to be used exclusively for total destruction of other countries, since it immediately exceeds the limit of the minimum necessary level of self-defense. Therefore, for instance, the SDF is not allowed to possess ICBMs, long-range strategic bombers or offensive aircraft carriers.

The exercise of the right of self-defense is restricted to the following so-called three requisite conditions: (i) there is an imminent and illegitimate act of aggression against Japan; (ii) there is no appropriate means to deal with this aggression other than resort to the right of self-defense; and (iii) the use of armed strength is confined to the minimum necessary level.

The use of minimum necessary force to defend Japan as employed in the execution of its self-defense is not necessarily confined to the geographic scope of Japanese territorial land, sea and airspace. Generally speaking, however, it is difficult to make a wholesale definition of exactly how far this geographic area stretches because it would vary with separate individual situations. Nevertheless, the government believes that the Constitution does not permit it to dispatch armed forces to foreign territorial land, sea and airspace for the purpose of using force, because such an overseas deployment of troops generally exceeds the limit of minimum necessary level of self-defense.

Under international law, it is understood that a state has the right of collective selfdefense, that is, the right to use force to stop armed attack on a foreign country with which it has close relations, even when the state itself is not under direct attack. It is beyond doubt that as a sovereign state, Japan has the right of collective self-defense under existing international law. The government, however, is of the view that the exercise of the right of self-defense as permissible under Article 9 of the Constitution is authorized only when the act of self-defense is within the limit of the minimum necessary level for the defense of the nation. The government, therefore, believes that the exercise of the right of collective self-defense exceeds that limit and is constitutionally not permissible.




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