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Jus ad Bellum Implications of Japan’s New National Security Laws

[Craig Martin is an Associate Professor at the Washburn University School of Law. He specializes in international law and the use of armed force, and comparative constitutional law He can be reached at: craigxmartin@gmail.com.] Far-reaching revisions to Japan’s national security laws became effective at the end of March. Part of the government’s efforts to “reinterpret” Japan’s war-renouncing Constitution, the revised laws authorize military action that would previously have been unconstitutional. The move has been severely criticized within Japan as being a circumvention and violation of the Constitution, but there has been far less scrutiny of the international law implications of the changes. The war-renouncing provision of the Constitution ensured compliance with the jus ad bellum regime, and indeed Japan has not engaged in a use of force since World War II. But with the purported “reinterpretation” and revised laws – which the Prime Minister has said would permit Japan to engage in minesweeping in the Straits of Hormuz or use force to defend disputed islands from foreign “infringements” – Japan has an unstable and ambiguous new domestic law regime that could potentially authorize action that would violate international law. By way of background, Article 9 of Japan’s Constitution provides, in part, that the Japanese people “forever renounce war as a sovereign right of the nation and the threat or use of force in the settlement of international disputes.” It was initially drafted by a small group of Americans during the occupation, and they incorporated language and concepts from the Kellogg-Briand Pact of 1928, and Article 2(4) of the U.N. Charter that had been concluded just months earlier. Thus, Article 9 incorporated concepts and language from the jus ad bellum regime for the purpose of imposing constitutional constraints that were greater than those imposed by international law, and waiving certain rights enjoyed by states under international law. While drafted by Americans, it was embraced by the government and then the public, such that it became a powerful constitutive norm, helping to shape Japan’s post-war national identity. (For the full history, see Robinson and Moore’s book Partners for Democracy; for a shorter account and analysis, see the law review article “Binding the Dogs of War: Japan and the Constitutionalizing of Jus ad Bellum”). Soon after the return of full sovereignty to Japan in 1952, the government interpreted this first clause of Article 9 as meaning that Japan was entitled to use the minimum force necessary for individual self-defense in response to an armed attack on Japan itself. It also interpreted it as meaning that Japan was denied the right to use force in the exercise of any right of collective self-defense, or to engage in collective security operations authorized by the U.N. Security Council. These were understood to be the “sovereign rights of the nation” under international law that were waived by Japan as a matter of constitutional law. All branches of government have consistently adhered to this interpretation every since. In 2014, however, frustrated in its efforts to formally amend Article 9,

Rest in Peace, John Jones QC

It is with great sadness -- and ongoing shock -- that I report the unexpected passing of John Jones QC, one of the great international lawyers. Accomplishments are not important at a time like this, but here is a snippet from his Doughty Street International profile to give readers  a sense of what a spectacular barrister John was: John has acted as Counsel in...

Complementarity Compromised? The ICC Gives Congo the Green Light to Re-Try Katanga

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.] On 7 April 2016, the ICC made an important but troubling decision in the case of Germain Katanga. After reviewing a request from the authorities of the Democratic Republic of Congo (DRC), the ICC Presidency determined that, in spite of the Rome Statute’s prohibition of double jeopardy, a Congolese military tribunal may effectively re-try Katanga on charges of war crimes and crimes against humanity. In addition to fair trial concerns, this decision raises a number of questions about the ICC’s raison d’etre, in particular the relationship of international criminal justice to human rights law and the future of complementarity. Readers of this blog will know that Katanga’s trial has generated significant controversy over the years, especially as regards the ICC judges’ use of Regulation 55 (covered by Kevin Jon Heller here and here). A Congolese rebel re-integrated into the national armed forces, Katanga was convicted of war crimes and crimes against humanity in March 2014. Later that year, the ICC sentenced him to twelve years imprisonment, of which he had already spent seven years in detention at the ICC. In November 2015, just 18 months into his sentence, the ICC decided that he was eligible for early release, meaning Katanga would be a free man in January 2016. Everything seemed to be going well for Katanga, when in December 2015 he made the fateful and still inexplicable decision to return to the DRC to finish serving his sentence. Shortly after he was transferred to a prison in Kinshasa (together with his compatriot and fellow ICC inmate Thomas Lubanga), rumors surfaced that the Congolese authorities would want to prosecute Katanga domestically. Sure enough, a few weeks before his scheduled release, the Congolese authorities announced Katanga would be tried in the DRC for war crimes and crimes against humanity. It should be noted at the outset that Katanga’s trial in the DRC is not prohibited as such by the Rome Statute. That multiple courts may assert jurisdiction over a single suspect flows from the ICC’s principle of complementarity. However, national prosecutions cannot violate Article 20 (2), which guarantees that “[n]o person shall be tried by another court for a crime… for which that person has already been convicted or acquitted by the [ICC].“ A reaffirmation of the cardinal human rights principle ne bis in idem (known as double jeopardy in the common law, though there are some differences), this provision basically ensures that ICC defendants will not be tried for the same crimes twice. Simple enough in theory, Article 20 is not as clear as it should be. International crimes are by their very nature composites of multiple crimes, which means that unless a person is tried and convicted for everything they did in their first trial, there will almost always be additional charges that a thorough or overzealous national prosecutor can bring in domestic proceedings. Thus, the key question is who gets to decide whether a national court may prosecute an ICC defendant for ‘a crime for which that person has already been convicted or acquitted.’ It would be extremely problematic if national courts were free to decide this vexing issue, especially in cases such as Katanga’s, where the defendant is a former rebel who fought to overthrow the government currently in power. Thankfully, the Rome Statute recognizes this risk and gives the ICC the final word:

A sentenced person in the custody of the State of enforcement shall not be subject to prosecution… unless such prosecution… has been approved by the Court at the request of the State of enforcement.

It is Article 108 (1) that lies at the heart of the ICC’s decision to allow

Proportionality and Autonomous Weapons Systems

[Jeroen van den Boogaard is assistant professor military law of the Netherlands Defence Academy and a lecturer and associate researcher at the Amsterdam Center of International Law.] Despite Chris Borgen's plea that “the immediate legal issues may have to do more with international business transactions than international humanitarian law”, the International Committee of the Red Cross (ICRC) hosted their second expert meeting on autonomous weapons systems last week. The meeting brought together a number of legal and technical experts on the subject as well as governmental representatives (the Report of the first expert meeting in 2014 is here). Autonomous weapons systems, or ‘killer robots’ as they are referred to by others, are sophisticated weapons systems that, once they have been activated, can select and attack targets without further human intervention. The focus of the ICRC in their definition of autonomous weapons systems (AWS) is on systems with a high degree of autonomy in their ‘critical functions’, namely autonomously selecting and attacking targets. The ICRC has in the past called on States to ensure that AWS are not employed if compliance with international humanitarian law (IHL) cannot be guaranteed. The Campaign to stop Killer Robots have called for a pre-emptive and comprehensive ban on AWS and to prohibit taking the human ‘out-of-the-loop’ with respect to targeting and attack decisions on the battlefield. It is important to realise that professional militaries around the globe already possess and use scores of weapon systems with varying levels of autonomy. The use of artificial intelligence of future AWS may however enable AWS to learn from earlier operations, which enhances their effectiveness. It is feared that this will lead to scenarios where AWS go astray and decide in an unpredictable way which targets to attack. The concerns for the use of AWS are based on a number of grounds, for example the moral question whether decisions with regard to life or death can be left to machines. Another concern is the fear that the protection of civilians during armed conflict would be adversely affected through the use of AWS. In legal terms, this means that it is unclear whether AWS are in compliance with IHL, particularly the principles of distinction, proportionality and precautionary measures. The main focus of the ICRC expert meeting was to establish what may be understood by retaining ‘adequate, meaningful, or, appropriate human control over the use of force’ by AWS. This is important because although there is by definition always a human actor who deploys the AWS, the question is what the consequences are in case the AWS is fully independently making decisions as required by IHL. For example, it is unclear whether AWS would be able to comply with the obligation to verify whether its target is a legitimate military objective. It seems that in technical terms, it may be expected that the use of complex algorithms may enable AWS to reliably identify the military advantage of attacking a certain target. Recent history has revealed the exponential speed of developments in computers, data storage, and communications systems. There is no reason to assume that this would be any different for the development of self-adapting AWS whose algorithms rely on artificial intelligence to independently assess what the destruction of a certain military objective would contribute to the military advantage of an operation. This is necessary to attack an object in compliance with IHL. Especially in environments without any civilian presence, such as below the sea on the high seas, IHL seems to be no obstacle to deploy AWS. The picture changes as soon as