Japan Institute for National Fundamentals

　　　　　A Japanese Ground Self-Defense Force unit participating in the United Nations Mission in the Republic of South Sudan, known as UNMISS, was given a new mission to come to the aid of others under attack from December 12, based on a cabinet decision last month.
　　　　　In a guideline for the new mission, the government has described the new mission as rescuing nongovernment organization activists or others if requested, meaning that the government has at last approved a moral mission that none may raise objection to.
　　　　　The guideline also describes bitter past experiences, pointing out that SDF personnel dispatched to East Timor or Zaire (the Democratic Republic of Congo at present) tried to come to the aid of Japanese nationals in danger and transport them to safe locations. This means that SDF personnel had then been to make flexible contributions at risk of being punished for taking actions outside the authorized missions. Given this, the recent cabinet decision, though being too late, was an appropriate one. However, I would like to point to some problems arising from the system where the Self-Defense Forces are not regarded as military forces under current Japanese law.

Weapon use restrictions as severe as those for police
　　　　　Even with the new mission given to the SDF in South Sudan, infantry units of other countries are unlikely to request support from SDF as they are engineers. Suppose unarmed NGO staff are attacked by mobs and request help from SDF engineers. The SDF personnel will be under severe weapon use restrictions imposed by the Police Duties Execution Act that call for the principle of minimizing weapon use and prohibit SDF personnel from harming anyone for purposes other than legitimate self-defense or averting imminent danger. These restrictions may lead SDF personnel to be restrained and self-sacrificial, and make SDF personnel hesitate even to fire warning shot.
　　　　　To allow SDF personnel to fire shots as necessary without hesitation, common rule of engagement for other countries’ forces participating in U.N. peacekeeping operations should be applied to SDF personnel as well.

SDF personnel could be charged for shooting by mistake
　　　　　There is another deplorable problem. Usually, military forces have a military criminal law for subjecting any illegal act to a court martial. However, members of the SDF that are not recognized as military forces under domestic law are subjected to the ordinary Criminal Code. Article 3 of the Criminal Code provides for murder, bodily injury and other crimes by Japanese nationals in foreign countries and exempt involuntary manslaughter or injury from punishment. Therefore, SDF personnel will not be charged for shooting local people by mistake under the Japanese Criminal Code.
　　　　　Meanwhile, the United Nations and the South Sudanese government have concluded the UNMISS Status of Forces Agreement to exempt UNMISS members from local criminal jurisdiction. Therefore, any South Sudanese court cannot try SDF members who killed or injured local people through negligence. For the reason that none can bring them to justice, as a result, we cannot completely rule out the possibility that charges against them might be filed with the International Criminal Court under the ICC Rome Statute to which Japan is a party.
　　　　　The new mission may be accompanied by due risks, separating current duties from past operations for the SDF. That is why an SDF unit as a military organization should be dispatched. Rather than considering a pay increase for PKO participants, which is welcome for SDF personnel, the government should have courage to assert that the real problem lies in the fact that the SDF are not regarded as military forces under Japanese law.

Seiji Kurosawa is Secretary General of the Japan Institute for National Fundamentals.