Japan Constitute The Self-Defense Forces created under the restrictions of Article 9 of the Constitution have many legal problems.
In Article 9 of the Constitution
1. The Japanese people sincerely seek international peace based on justice and order, and the war in which national rights are exercised and the threat or use of force by force are permanently abandoned as a means of resolving international disputes. do.
2. In order to achieve the purpose of the preceding paragraph, the Army, Navy, Air Force and other forces do not hold this. The state's right to engage does not recognize this.
And does not allow the retention of the army. For this reason, the Self-Defense Forces are organized as one of the administrative agencies.
The army is an organization that responds to national crises such as aggression from the outside.
When it comes to operational combat, they kill each other, killing their enemies and killing themselves.
Under Japanese law, murder charges can be applied if a person is killed, disability charges can be applied if a person is hurt, and the Constitution guarantees the people various rights including physical freedom.
In the extreme situation of war, it is impossible to fight while respecting the rights of residents and SDF personnel. If you are invaded or intercepted by a foreign country, the town will be destroyed and your life will be lost. Originally, there must be a statement in the Constitution that would limit human rights in such an emergency, without which military organizations would not be able to operate satisfactorily (there is no current Constitution).
In other words, it can be said that the current Constitution does not assume a national emergency such as aggression from a foreign country.
On the other hand, in the government's view
Under international law, the right to self-defense as a sovereign state is naturally held, and the Self-Defense Forces are recognized as the minimum necessary defense capability.
The current situation is that the law as a whole gives defense duties, even though it does not fully recognize the military and its activities. (Even in an emergency, the human rights of the inhabitants are respected to the utmost, and the operation is promoted while coordinating with various organizations, and the military necessity necessary for defense is not taken into consideration.)
This is also the reason why the Self-Defense Forces have to act according to the so-called "positive list (only what they can do)".
The following are three fatal legal issues of the Self-Defense Forces.
Not ready for sufficient defense
Article 103-2 of the Self-Defense Forces Act (relocation of standing trees, etc. (in defense facility construction measures))
According to the report, troops ordered to build a defense facility (at the stage when the situation is tense and a defense operation order is expected) can stay in the area and remove obstructive trees and the like.
The flip side is that you can't do anything else (for example, destroy a house or build a minefield that hinders your operations) until you're ready to defend yourself.
A defense operation is a situation in which an armed attack has occurred or its obvious danger is imminent.
Under the current law, the Self-Defense Forces can only prepare for the removal of standing trees at the maximum until just before the enemy attacks, despite the defense of the land.
Not preparing for defense is a handicap to the invading enemy, which not only makes defense difficult, but also increases the risk of life for SDF personnel.
It is unavoidable to limit the rights of the people in an emergency. If nothing is done, the result will be that the law will be obeyed and the country will not be obeyed.
Light penalties for desertion
According to Article 122 of the Self-Defense Forces Act, a person who escapes from a mission or escapes in front of an enemy in response to a defense operation order is imprisoned or imprisoned for up to 7 years.
In other words, even if the enemy attacks and escapes, he will only be in jail for less than 7 years. (Equivalent to the crime of fatal injury due to negligence in driving a car) If the army of an ordinary country is unanimously sentenced to death.
There are 240,000 SDF personnel and various people.
Under current law, it is possible that many members will choose to be sentenced to imprisonment.
If that happens, the commanders on the scene will not be able to take proper command, and the troops will collapse before fighting.
If you take the defense of the country seriously, you should set the appropriate punishment.
Court martial cannot be set up
According to Article 76 of the Constitution, "a special court cannot establish this", effectively prohibiting the establishment of a military court. (There is also a theory that can be set up as a framework like a family court)
The Self-Defense Forces ordered to dispatch defense can use force to eliminate the aggression.
In this case, since Article 35 of the Criminal Code states that "acts by law or legitimate business will not be punished", it is not guilty to kill or destroy the enemy army.
On the other hand, what if civilians remain in the area invaded by the enemy?
If it is clear that a large number of inhabitants will be sacrificed if the enemy is not stopped there, the Self-Defense Forces will use weapons to stop the enemy's invasion. As a result, if the remaining civilians are sacrificed, SDF personnel will be tried by criminal law.
Perhaps murder or corporate manslaughter is applicable.
* Since there is a court martial for ordinary troops, there is a reasonable judgment based on military needs and humanitarian considerations.
In other words, if a war broke out under the current law, the SDF personnel who fought for their lives could become murderers.
Before fighting the Self-Defense Forces, it is essential to approve the establishment of a court martial.
This time, an example is given, but many other similar cases can occur.
Under current law, you have to fight the law and administrative procedures with as much effort as you do.
-reference-
(Defense Operation)
JSDF act Article 76
The Prime Minister may order the dispatch of all or part of the Self-Defense Forces if he / she finds it necessary to defend Japan in the following situations. In this case, the Diet shall be pursuant to the provisions of Article 9 of the Act on Ensuring the Peace and Independence of Japan and the Security of the State and the People in the Legislation for Responses and Survival Crisis (Act No. 79 of 2003). Must be approved.
(1) A situation in which an external armed attack against Japan has occurred or a situation in which it has been recognized that there is an imminent danger of an external armed attack on Japan.
(Ii) A situation in which an armed attack against another country closely related to Japan occurs, which threatens the existence of Japan and there is a clear danger that the people's right to pursue life, freedom and happiness will be fundamentally overturned.
2. The Prime Minister must immediately order the withdrawal of the Self-Defense Forces when it is no longer necessary to dispatch.
JSDF act Article 77-2
The Minister of Defense is in a tense situation and is issued a defense operation order pursuant to the provisions of Article 76, paragraph 1 (limited to the part pertaining to item 1; the same shall apply hereinafter in this article). Areas where it is expected that the SDF units ordered to be dispatched pursuant to the provisions of the same paragraph will be deployed and that defense needs to be strengthened in advance (hereinafter referred to as "planned deployment areas"). If there is (), after obtaining the approval of the Prime Minister, the scope will be determined, and the SDF units, etc. will be provided with camps and other defense facilities (hereinafter referred to as "defense facilities") within the planned deployment area. You can order measures to build.
JSDF act Article 103-2
When it is deemed necessary to carry out the duties of the SDF units, etc. ordered to take measures pursuant to the provisions of Article 77-2, the prefectural governor shall defend within the planned deployment area. Land may be used at the request of the Minister or a person specified by a Cabinet Order.
2. When using land pursuant to the provisions of the preceding paragraph, if it is recognized that standing trees, etc. will interfere with the performance of the SDF's mission, the prefectural governor may relocate the standing trees, etc. in accordance with the example of the provisions of the same paragraph. .. In this case, if it is found that the relocation is extremely difficult in light of the situation, the standing tree, etc. may be disposed of in accordance with the example provided in the same paragraph.
3. The provisions of paragraphs 7 to 10 and 17 to 19 of the preceding article shall apply to the case of using land, moving or disposing of standing trees, etc. pursuant to the provisions of the preceding two paragraphs. The provisions of paragraphs 6, 13, 15 and 16 shall apply mutatis mutandis to the case where land is used pursuant to the provisions of paragraph 1. In this case, the term "Self-Defense Forces ordered to be dispatched pursuant to the provisions of Article 76, Paragraph 1" in paragraph 6 of the preceding Article means "Self-Defense Forces ordered to take measures pursuant to the provisions of Article 77-2." It shall be read as "Self-Defense Forces, etc."
4. When land is used pursuant to the provisions of paragraph 1, the Self-Defense Forces are ordered to be dispatched pursuant to the provisions of Article 76, paragraph 1 (limited to the part pertaining to item 1), and the land concerned is the preceding article. When the area is included in the area to which the provisions of paragraph 1 or 2 apply, the dispositions, procedures and other acts taken by the prefectural governor pursuant to the provisions of the preceding three paragraphs shall be the dispositions and procedures pursuant to the provisions of the preceding article. Considered as any other act.JSDF act Article 122
A person who has received a Defense Operation Order pursuant to the provisions of Article 76, paragraph 1 and falls under any of the following items shall be punished by imprisonment with work for not more than 7 years or imprisonment with work. (I) A person who violates the provisions of Article 64, paragraph (2)
(Ii) A person who has left the place of work for three days without a justifiable reason or a person who has not been able to arrive at the place of work for three days without a justifiable reason from the day when he / she was ordered to arrive at the place of work.
(Iii) A person who rebels against or does not obey the order of the superior's duties
(Iv) A person who has commanded a unit of the Self-Defense Forces without proper authority or in violation of a superior's job order.
(V) Persons who have neglected their duties due to leaving the place of work, sleeping, or being intoxicated during vigilant work for no good reason.
2. A person who instigates or assists in the performance of the act prescribed in item 2 or 3 of the preceding paragraph, or conspires to, incites, or incites the performance of the act prescribed in item 1 or 4 of the same paragraph. Each person who is agitated shall be punished by the same paragraph.
Article 35 of the Criminal Code
Acts by law or legitimate business will not be punished.Japan Constitute Article 76
1. All jurisdiction belongs to the Supreme Court and the inferior court established by law.
2. The special court cannot establish this. The administrative agency cannot make a trial as the final trial.
3. All judges shall exercise their authority independently in accordance with their conscience and shall be bound only by this Constitution and the law.