Cablegate: Daily Summary of Japanese Press 04/18/08

DE RUEHKO #1072/01 1090808
P 180808Z APR 08





E.O. 12958: N/A



(1) Nagoya High Court finds Iraq airlift mission to be
unconstitutional; Decision casts pall on Japan-U.S. integration
policy; Unannounced conditions mentioned; May affect Indian Ocean
refueling operation as well (Tokyo Shimbun)

(2) Editorial: Discussion of right to collective defense now
necessary (Nikkei)

(3) Editorial: Court rejects peace cooperation? (Sankei) 4
(4) Revisions to SOFA not in sight; Municipalities dissatisfied with
improved administration (Asahi)

(5) Okinawa Prefecture asks U.S. Marine Corps to remove dropped
bombs and suspend drill (Okinawa Times)

(6) Editorial: President Bush can't read global trend on fight
against global warming (Asahi)

(7) UNICEF Japan calls for revision of child pornography law


(1) Nagoya High Court finds Iraq airlift mission to be
unconstitutional; Decision casts pall on Japan-U.S. integration
policy; Unannounced conditions mentioned; May affect Indian Ocean
refueling operation as well

TOKYO SHIMBUN (Page 3) (Abridged slightly)
April 18, 2008

The Nagoya High Court ruled yesterday that part of the Air
Self-Defense Force's airlift mission in Iraq is a breach of Article
9 of the Constitution. The decision threw cold water on Japan's
security policy of promoting SDF integration with the U.S. military
and shifting weight to overseas missions. Touching on some
activities that have not been revealed by the government, the court
determined that the ASDF's mission to airlift armed U.S. troops
constitutes the "use of force." This has put a question mark over
the overseas dispatch of the SDF, which have been providing
rear-area support to the U.S. military under the Iraq Special
Measures Law, the Antiterrorism Special Measures Law, and the
Japan-U.S. agreement on U.S. force realignment.

80 PERCENT of flights for U.S. military

Some 210 ASDF personnel and three C-130 cargo planes are now
stationed in Kuwait. They fly four to five times a week to southern
Iraq, Baghdad, and Arbil in the north. Over 80 PERCENT of the
flights are for airlifting U.S. military personnel and supplies, and
only once a week for the UN, which is engaged in reconstruction
assistance in the country.

The government has insisted that the ASDF activities are
constitutional by indicating that they are mostly for humanitarian
and reconstruction assistance without revealing their specific
activities and by explaining that the airports and flight paths are
in noncombat zones, despite the deteriorating security situation in

TOKYO 00001072 002 OF 009

The court ruled that the airlifts are largely security support
activities (that constitute rear-area support for the U.S.
military), a decision contradictory to the government's view. The
court also determined that the mission is a breach of Article 9 of
the Constitution, which prohibits the use of force, concluding that
airlifting armed soldiers to Baghdad, a combat zone, is an act
integral to the use of force.

Flights often cancelled

In reaction to this ruling, a senior Defense Ministry official
noted: "The overall security situation in Baghdad is irrelevant. The
airport and flight paths are in noncombat zones." Administrative
Vice-Defense Minister Kohei Masuda categorically said: "We will not
review the activities."

When the ASDF's C-130s flew over Baghdad from last year through this
year, alarms often rang out indicating that missiles were targeting
them. Calling off a flight due to worsening security is not

In light of (the Nagoya court's decision that) airlifting military
personnel and supplies to a combat zone is unconstitutional, it is
inevitable that the Maritime Self-Defense Force's refueling mission
in the Indian Ocean under the Antiterrorism Special Measures Law,
whose term once expired, will also be found unconstitutional. Before
the House of Representatives Budget Committee on October 10, 2007,
Foreign Minister Masahiko Koumura admitted that MSDF fuel had been
used in the war, saying, "(The MSDF also provided fuel) to U.S.
vessels that staged air strikes in Afghanistan."

Review of SDF overseas missions inevitable

In the talks on U.S. force realignment held in May 2006, Japan and
the United States agreed to expand the close cooperation between the
U.S. military and the SDF to a global level under the banner of
improving the international security environment, going beyond the
defense of Japan and responses to contingencies in areas surrounding
Japan. In December 2006, the SDF Law was amended and the SDF's
overseas activities were upgraded to primary duties, paving the way
for integration of the U.S. military and the SDF in various parts of
the world.

(The Nagoya court's) decision that found the ASDF's logistical
support to U.S. forces in combat zones to be unconstitutional is
likely to press the government for a review of the SDF's overseas
activities. Although joining UN peacekeeping operations in
compliance with UN requests may cause only a few problems, Japan is
required to use extra caution in providing effective support to the
U.S. military, such as the Iraq mission, which Japan has notionally
carried out independently.

(2) Editorial: Discussion of right to collective defense now

NIKKEI (Page 2) (Full)
April 18, 2008

The Nagoya High Court said in its ruling that some Air-Self Defense
Force's (ASDF) airlifting activities conducted in Iraq violated the

TOKYO 00001072 003 OF 009

The above account was given when the court explained the reasons for
its verdict on an appeal filed by some 1,100 plaintiffs across the
country demanding an injunction against the Self-Defense Forces'
(SDF) dispatch to Iraq. The plaintiffs claimed that the SDF's
activities in Iraq violated Article 9 of the Constitution. The
judgment rejected all claims filed by the plaintiffs, and it does
not legally restrict the SDF's activities now going on in Iraq.

The court's ruling this time is noteworthy in terms of pointing to
ambiguity in the definitions of a combat zone and a noncombat zone,
as well as on the government's far-fetched interpretation of the
Constitution over the question of the right to collective

The court said that the SDF's airlifting of armed soldiers in the
multinational force to Baghdad is unconstitutional.

So far the government has noted that the region where the ASDF
operates in Baghdad is a noncombat zone, but the ruling, judging
from reports on the current situation in Iraq, recognized "Baghdad
as a combat zone as defined under the Iraq Special Measures Law." It
concluded that transport of armed soldiers to a combat zone comes
under "cooperation that could be identified as being involved in the
use of force by other countries," an act that is not allowed

Our position has been that the SDF should broadly take part in
logistic support for United Nations peacekeeping operations (PKOs)
or peace-building activities by a multinational force, but that the
SDF should not participate in combat operations.

That is why we have insisted on the need for the government to shift
its previous interpretation of the Constitution over the right to
collective self-defense.

The reason the government had to leave the definitions of a "combat
zone" and a "noncombat zone" ambiguous was because it had to allow
the SDF to be engaged in their missions in Iraq without violating
the government's interpretation of the Constitution. Former Prime
Minister Shinzo Abe, who was aware of the need to make this point
clear, established a panel of advisors to do so. The panel is headed
by former Ambassador to the United States Shunji Yanai.

The panel has never met, however, since Yasuo Fukuda took office as
prime minister. Fukuda appears to have in effect suspended debate on
the matter. Meanwhile, Fukuda has instructed his staff to draft
permanent legislation intended to allow the government to dispatch
the SDF abroad as needed, and make preparations in the ruling bloc
so that the bill will be submitted to the current session of the

If permanent legislation of this kind is established without
touching on the government's previous interpretation of the
Constitution regarding the right to collective self-defense, the
confusion will continue. The Nagoya High Court's verdict may be a
criticism of the Fukuda administration's incoherent stance.

(3) Editorial: Court rejects peace cooperation?

SANKEI (Page 2) (Full)
April 18, 2008

TOKYO 00001072 004 OF 009

A high court ruled yesterday that the Air Self-Defense Force's
mission in Iraq is unconstitutional. The court ruling, however, is
extremely questionable, since it denigrates the ASDF's activities in
Iraq for peace building and reconstruction assistance.

The Nagoya High Court has rejected the plaintiffs' demand to suspend
the SDF deployment to Iraq. The high court sided with a district
court's rejection of claims for an injunction against the SDF
dispatch and demands for compensation. However, the court ruling
said the ASDF's airlifting of U.S. troops and other multinational
forces violated the first paragraph of Constitution Article 9.

The plaintiffs have decided not to appeal the ruling, so the state
cannot appeal. It is the first court ruling to find the SDF dispatch
to Iraq unconstitutional, and the decision will be finalized. This
court judgment of unconstitutionality was shown in an obiter dictum
that has nothing to do with the text of judgment.

The high court raised a question in an obiter dictum. This deviates
from constitutional law litigation.

Moreover, the state, which is a defendant, is blocked from making a
final appeal to the Supreme Court. We must point out that this
denies Japan's court system of determining constitutionality, for
which the Supreme Court serves as a court of last instance to judge
constitutionality under Japan's three-instance judicial system.

The high court judgment of unconstitutionality is also questionable
in itself. The court ruling said the ASDF's airlifting of
multinational force troops to Baghdad is an act integral to other
countries' use of force and can unavoidably be taken as being
tantamount to its own use of force.

A Kuwait-based ASDF detachment has been tasked with airlifting
troops and goods, including Ground Self-Defense Force members, to
Iraq's southern districts on its C-130 transport planes. After the
GSDF's pullout two years ago, the ASDF extended the scope of its
airlifting activities to cover Baghdad and other localities in that
country. The ASDF is currently engaged there in the task of
airlifting personnel and supplies for the United Nations and
multinational forces. The government maintains that Baghdad meets
the Iraq Special Measures Law's requirement of SDF activities to be
carried out outside a combat zone, and the ASDF has been only
carrying out backup activities.

We must not forget that the ASDF's Iraq mission is also based on a
U.N. Security Council resolution on the stationing of multinational

Japan thereby shares the international community's determination not
to let Iraq become a breeding ground for terrorists.

The "threat or use of force," which is prohibited in Constitution
Article 9, can be interpreted to refer to a war of aggression. The
court ruling takes the position that Japan's international
cooperation for peace is unconstitutional. This judgment is hard to
understand when considering the international surroundings of

The SDF was once ruled unconstitutional in a court judgment 35 years
ago. This judgment, however, was dismissed in a higher court's
ruling. The court ruling this time is probably aimed at overruling

TOKYO 00001072 005 OF 009

the theory of governing, namely, a high-level political act
pertaining to the fundamentals of government is beyond the power of
court judgment. An obiter dictum is not legally binding.

The government says it will continue the ASDF's Iraq mission. We
take that for granted.

(4) Revisions to SOFA not in sight; Municipalities dissatisfied with
improved administration

ASAHI (Page 3) (Abridged slightly)
April 17, 2008

In the wake of a string of incidents committed by U.S. service
members in Japan, the governments of Japan and the United States
have drawn up a set of measures to improve the administration of the
Japan-U.S. Status of Forces Agreement (SOFA). Although the two
governments are already in accord on having the United States
provide Japan with the number of U.S. military personnel living
off-base and information on deserters, Tokyo and Washington had
aimed from the beginning at settling the matter by just improving
the administration of the SOFA instead of making revisions to it.
Base-hosting municipalities are dissatisfied with such a stance.

Limited effects expected from notification of deserters

Foreign Minister Masahiko Koumura announced on April 11 that Japan
and the United States would share information on deserters. He
"In the event the U.S. declares a service member as a deserter, it
immediately will ask prefectural police departments for
(cooperation) in arresting him. This applies to all deserters. At
the same time, the U.S. will notify the Japanese government."

A taxi driver was killed in Yokosuka, Kanagawa Prefecture (on March
19). A U.S. sailor has been arrested on charges of murder and
robbery. He was a deserter. Criticism erupted about the fact that
the U.S. did not notify Japan about him before the incident
occurred. Taking this seriously, the governments of Japan and the
United States repeatedly discussed the matter and made the
announcement speedily just eight days after his arrest.

U.S. Forces Japan Commander Maj. Gen. Edward Rice, who took command
this past February, shortly before the incident occurred,

"An agreement has been reached with the Japanese government. What
was specifically determined will be announced in the near future. I
think this is good news for the two countries."

Effects of the measures are likely to be limited, however. According
to the Foreign Ministry, a U.S. deserter is defined as any missing
service member: (1) whose clear intent is to abandon the military;
or (2) who has left his or her post for 30 days or more. In the case
of (2), there is a possibility that a person might commit a crime
before being declared as a deserter.

Heads of base-hosting municipalities and others are calling for
stronger measures. Kanagawa Governor Shigefumi Matsuzawa said: "We
have repeatedly called for tighter discipline among U.S. service
members, a review of educational programs and other measures, but

TOKYO 00001072 006 OF 009

there has been no end to heinous crimes by U.S. service members." He
has also called for a revision of the SOFA to establish a
consultative council involving local governments under the
Japan-U.S. Joint Committee, a consultative body based on the SOFA.

But neither Japan nor the United States has considered revisions to
the SOFA. Their view is that improved administration will be
sufficient. A U.S. service member was arrested in connection with a
case in Okinawa in which a local girl was allegedly sexually
assaulted in February. (The accusation was later withdrawn.) This
has led to the improved SOFA operation of annually notifying via the
Japanese government the base-hosting municipalities of the number of
personnel connected with the U.S. military and of service members
living off-base. The U.S. also decided to hand the suspect of the
Yokosuka murder case over to the Japanese side as soon as Japan made
a request.

After the Yokosuka incident, U.S. Ambassador to Japan J. Thomas
Schieffer told the press:

"If you look at the record of the investigation into this case, you
will see that the United States and Japan have cooperated fully and
that the SOFA functioned extremely well. I don't think the SOFA
needs to be revised at this point."

(Japan-U.S. SOFA) more advantageous to host nation than pacts with
other countries

USFJ Commander Rice said on April 14: "The accord is advantageous to
the host nation (Japan) in comparison with similar documents (SOFA)
with other countries."

Foreign Minister Koumura noted on February 15: "In light of global
standards from the U.S. side, Japan is somewhat advanced."

True, Japan is the only country to which the United States has
agreed to hand over suspects before indictment. Still, the steps are
confined to improved administration of the SOFA, not revisions to

Following the schoolgirl rape in Okinawa in 1995, the governments of
Japan and the United States agreed to improve the SOFA's
administration. The United States decided to give "sympathetic
consideration" to Japan's requests for pre-indictment handover of
suspects "in heinous crimes, such as murder and rape." Based on this
agreement, Japan has made requests in six cases, and the United
States complied with them in five. The United States did not accede
to the request in an attempted rape that occurred in Okinawa in
November 2002. Although the United States did not provide clear
reasons for refusing the request, there might have been such
circumstances as that: (1) the U.S. service member, the suspect,
strongly denied the charges (saying that the conduct was
consensual), and (2) the U.S. side decided that there was
insufficient evidence to indict him.

The SOFA concluded in 1960 between Japan and the United States was
modeled after the SOFA (general agreement) concluded in 1951 between
the United States and North Atlantic Treaty Organization (NATO)
members. In Germany, investigations into crimes committed by U.S.
service members and trials for U.S. military personnel are governed
by the Germany-NATO treaty and the Bonn supplementary agreement. But
in most cases, Germany has abandoned primary jurisdiction.

TOKYO 00001072 007 OF 009

What about South Korea? Before the U.S.-ROK SOFA was revised in
2001, South Korean authorities were allowed to take into custody
U.S. suspects only after their sentences are determined. Today, they
can have the custody of any U.S. military personnel suspected of any
of 12 designated crimes, such as murder, kidnapping and arson, at
the point of indictment.

The United States originally concluded SOFAs soon after the end of
WWII when the host nations' legal systems were still insufficient
with the aim of defending the rights of U.S. service members who
became suspects in those countries.

Surugadai University Professor Emeritus Hiroshi Honma, who is
well-versed in SOFAs, pointed out: "Japan's system to respect human
rights is no less inferior to that of the United States. The time
has come to fundamentally review the SOFA."

In some aspects, the Japan-U.S. SOFA is lagging behind those with
Germany and South Korea when it comes to what is agreed upon on the
use of bases. Under the Bonn supplementary agreement revised in
1993, the armed forces stationed in the country are required to
conduct environmental assessments on their bases. An agreement was
also reached in 2003 with Seoul requiring the United States to clean
up the environment when returning its bases to South Korea.

The council of the governors of 14 prefectures hosting U.S. bases
presented to the government last year a petition calling for a SOFA
specifying the application of domestic laws, such as the Air
Pollution Control Law and the Clean Water Law, to U.S. bases in

In the Japan-U.S. SOFA, there are no agreements on environmental
matters. Chances are high that once Futenma Air Station and other
bases are returned to Japan with the advancement of the realignment
of U.S. forces in Japan, environmental conditions surrounding U.S.
bases will become a focal point. The governments of Japan and the
United States must earnestly address tasks that cannot be resolved
with the U.S.'s "sympathetic consideration" alone.

(5) Okinawa Prefecture asks U.S. Marine Corps to remove dropped
bombs and suspend drill

OKINAWA TIMES (Page 2) (Full)
April 17, 2008

A U.S. Marine Corps AV-8 Harrier fighter dropped 500-pound bombs in
waters outside the designated zone for the Torishima firing range in
Kumejima Town. In this regard, Akira Uehara, the public relations
officer of the Okinawa prefectural government, on April 16 made an
oral request to the U.S. Marine Corps in Japan for the speedy
removal of dropped bombs and the suspension of the AV8 Harrier
fighters' drill until there has been an investigation to determine
the cause.

Speaking of the incident of a taxi driver being robbed and injured
in Okinawa City, Uehara asked Kadena Air Base to take disciplinary
steps and preventive measures. On the U.S. side, public affairs
officers handled Uehara's claims. The Okinawa government intends to
seek a reply from the U.S. side.

Pointing out the delay in the U.S. military's report of the dropped

TOKYO 00001072 008 OF 009

bombs, as well as mistakes in the initial report, Uehara called on
the U.S. side to clarify reasons for the confusion. He told the
Marine Corps public affairs officer: "It goes without saying that
sufficient consideration was not given to public safety, as well as
to the anxiety of prefectural residents."

Uehara also demanded that the U.S. take all possible measures to

prevent a recurrence of similar incidents by creating a
communication system and toughing safety control.

Uehara told the Kadena Air Base public affairs officer:


"It is a serious issue that a military police officer in charge of
discipline of military personnel and maintenance of order was
involved in the robbery while the Japanese and U.S. governments are
studying preventive measures."

Uehara made similar oral requests to the U.S. Consulate General in

Okinawa, the Foreign Ministry's Okinawa Office, and Okinawa Defense

(6) Editorial: President Bush can't read global trend on fight
against global warming

ASAHI (Page 3) (Full)
April 18, 2008

The contents of the measures announced by U.S. President Bush were
hard to believe. We wonder what he is thinking.

President Bush said: "The U.S. will by 2025 halt the growth of
emissions" of carbon dioxide (CO2) and other greenhouse gases that
cause global warming. This can be taken, however, as a declaration
that it will be unavoidable for the U.S. to continue to increase
emissions for the next 17 years.

Since the U.S. withdrew its commitment to the Kyoto Protocol, which
mandates industrialized countries to reduce greenhouse gas
emissions, it has yet to set any target for emission cuts. Maybe the
U.S. wants to say that revising such a stance is significant.

Nonetheless, the international community has already presented
targets for stopping the growth of greenhouse gas emissions.

In the session of the Conference of the Parties to the United
Nations Framework Convention on Climate Change held late last year,
discussion was conducted on plans to "turn the growth of
global-scale gas emissions to the minus column within 10 to 15
years," and to "reduce gas emissions by the industrialized countries
by 25 to 40 PERCENT from 1990 levels by 2020." These figures are
based on an estimate by the Intergovernmental Panel on Climate
Change (IPCC). Although they did not become official targets, they
are now important standards to be used in working out measures to
curb global warming.

What startles us is that the president is ignorant of such a
direction of discussions.

The U.S. is foremost among the industrialized countries. That is not
all. The U.S. is the world's largest CO2 emitter (according to
statistics in 2005). It is unbelievable that such a country has no
intention to meet the target for the industrialized countries and

TOKYO 00001072 009 OF 009

might continue to discharge an increase amount of greenhouse gases
for 15 years from now, until when the international community has
decided to have the growth of its emissions fall in negative

Don't forget that these targets are based on what was discussed in
the G-8 Summit last year. In the Summit, the leaders agreed to look
into the goal of "halving the world's greenhouse gas emissions by
2050" in a serious manner. The standards are a milestone on the road
to achieving the goal.

The U.S. government played a role in bringing about the agreement.
It also revised its stance to join talks under the United Nations on
forming a new framework following the 2012 expiration of the Kyoto
Protocol. There are now strong doubts about whether the government
was really serious about tackling this challenge.

A matter of serious concern in discussion on a post-Kyoto scheme is
whether China and India, major emitters, will join the new
framework, although the two countries are not obligated to cut
emissions as they are considered developing countries under the
Kyoto Protocol. It is undesirable that the U.S. indicated this
negative stance at such a time, because it will become difficult to
call on China and India to share in the burden.

There are high hopes that the U.S. will change after the end of the
Bush administration early next year. The three presidential
candidates certainly appear to be more eager to fight global warming
than the incumbent.

Even so, we cannot afford to waste time. How about inviting the U.S.
presidential candidates to the Lake Toya Summit, in which the issue
of global warming will take center stage?

(7) UNICEF Japan calls for revision of child pornography law

MAINICHI (Page 3) (Full)
April 18, 2008

The Japan Committee for UNICEF presented to six ruling and
opposition parties a petition with some 21,000 signatures calling
for amendments to the Law Punishing Acts Related to Child
Prostitution and Child Pornography. The petition calls for
criminalizing "simple possession" of pornographic images and
pictures of children under the age of 18, as well as animated
cartoons of sexual abuse. The ruling parties plan to criminalize
simple possession of images and pictures, excluding cases in which
such pornographic material was sent unsolicited, and forgo
criminalizing possession of cartoons.


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