Use of Force by PKO

When Japan's Self Defense Force (SDF) participates in United Nations Peace Keeping Operations (PKO), its ability to use force is rather restricted. In its use of weapons, the SDF is limited to "the minimum necessary to protect the lives of personnel" and, further, it is not permitted to use its weapons to "resist attempts by others to prevent the Peace Keeping Forces from discharging its duties." The former case is sometimes called Type A and the latter, Type B. Deciphering these restrictions, they mean that Japan's SDF is able to use force in the course of assisting its own members. When, however, there are others who are participating in the same PKO activities as the SDF, or in circumstances where Japan's NGOs may be exposed to danger, then, in principle, the SDF cannot render assistance to them; all it can do is to request that the forces of other nations provide assistance.

Anyone can readily perceive this as being unfair. Moreover, Japan's SDF is well-equipped and well-trained and has superior capabilities. From an international perspective, therefore, one can question the rationality of these restrictions on the SDF. Editorials published in Japan's major newspapers have different views regarding SDF's overseas activities. Increasingly, however, they appear to advocate for allowing Type B activities or, at least, authorizing the SDF to conduct activities that approach them. They nonetheless conclude that, due to constitutional constraints, Type B activities are impermissible.

"The Advisory Panel on Reconstruction of the Legal Basis for Security" created by the Prime Minister is reviewing whether Type B activities can be permitted. It is worth paying attention to its deliberations.

Use of force by Japan's SDF is limited for two reasons. First, looking to Japan's commitment to pacifism, the Japanese Constitution is interpreted as forbidding the SDF from using force overseas. Second, the authorization to use weapons in the course of PKO has been interpreted as being limited only to cases of self-defense against attacks. (cf. "Kokusaiho (International Law)" Soji Yamamoto)

Regarding the first point, which relates to Japan's Constitution, Article 9, Section 1 stipulates ".... 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." The Government of Japan defines "international disputes" as "the states in which nations or quasi-state organizations have differing positions about a specific issue, and are opposed to each other by insisting on its own position without compromise." (Website of the Office of the Prime Minister, "Use of force in international peace keeping operations")

This definition of "international disputes" has been used as the basis for arguing that Japan cannot use force in conflicts either between nation states or, within a particular nation, between a government and rebel forces. In the second circumstance, PKO takes place only after the government and the rebel forces have reached a peace agreement. Then, by definition, there is no "international dispute." For PKOs in those circumstances, the restriction of Japan's Constitution would seem not to apply.

The doctrine of international law that the use of force during PKO is limited to self-defense against attacks derives from the United Nations Charter, which, in principle, prohibits use of force. The Charter provides that, as an exception to the prohibition on the use of force, the UN may take military actions (Article 42), and UN member nations can engage in individual or collective self-defense, if an armed attack occurs against them (Article 51). UN Force has never been created. The Charter, therefore, seems to allow force to be used in the exercise of the right to self-defense. But, there are other exceptions. Article 2 Section 4 provides that "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." This can be interpreted as meaning that the use of force is permitted in instances that further the objectives of the UN. Therefore, there is a third type of an exception to the use of force. If we recognize this exception, then the use of force is permissible in situations other than the exercise of the right to self-defense.

Thus, taking into account the right to self-defense when considering PKO activities is not necessary and, in fact, doing so creates problems. That is to say, a nation exercises the right to self-defense when it is under attack from other nation(s). In such cases, there usually is an "international conflict" between the attacking nation(s) and the nation under attack. Even if the states had peaceful relations and were neither enemies nor allies, an "international conflict" often starts at the moment when one nation attacks another nation. This is to say that "international conflict" starts at the same moment as the right to self-defense is exercised or right before such moment and, therefore, when the right to self-defense is being exercised, it is usually the case that an "international conflict" exists.

By comparison, PKO takes place when warring parties have agreed to peace. The objective of PKO is to prevent any intervention that aims to hinder the peace. Therefore, invoking the right to self-defense by a nation state in connection with PKO is not appropriate: it is tantamount to applying to peacetime the rules that authorize the use of force to respond to a warring state.

Needless to say, PKO does not permit limitless use of force. It should only be permitted to the extent necessary to execute the UN Council resolutions applicable to each PKO.

If one maintains the sharp distinction between situations involving PKO cases and those where the right to national self-defense may be exercised, then it is clear that Japan's constitutional restraints ought not to apply to such PKOs. PKOs are activities under the supervision of the UN in conditions of peace. Even if Japan's SDF were to use force in the course of such PKOs, that would not result in Japan invading other nations.

The key is to view PKO as a third exception to the prohibitions on use of force provided for in Article 2 Section 4 of the UN Charter and to acknowledge that PKO are conducted in peaceful situations that are fundamentally different from those involving the exercise of the right to national self-defense. I believe that if we affirm these points, then Japan's troops deployed in PKO will not need to be justified by coming within the exercise of the right to self-defense and will not fall within situations prohibited by Japan's Constitution and, accordingly, they should be able to exercise force to the extent necessary to fulfill UN resolutions.