Courts-martial for Japan Self-Defense Forces?

What does a modern democracy do if it decides to start a military justice system pretty much from scratch? Japan may be facing that question. Under the provocative title "Military Courts Unconstitutional," The Japan Times has just run this fascinating editorial about the potential military justice implications of the cabinet's recent decision to permit the country to engage in collective self-defense:

The Abe administration’s July 1 Cabinet decision to allow Japan to take part in collective self-defense will bring major changes to the nature of the Self-Defense Forces, including raising the possibility that the SDF could take military action overseas to assist a country under attack that shares close ties to Japan even if Japan is not under attack. This also raises the question of whether the introduction of a courts-martial system to the SDF would be necessary.

SDF members engaged in such missions may be exposed to life-or-death situations. Some people think that courts martial would be necessary to speedily deal with SDF members who desert their front-line posts or commit other violations in such a situation. But the creation of such an institution would deviate from the provision of the Constitution that bans the establishment of extraordinary tribunals outside of the judiciary.

The SDF has no courts martial because Article 76 of the Constitution says in part, “No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive be given final judicial power.” Under the Self-Defense Forces Law, SDF members are given up to seven years’ imprisonment for desertion under enemy fire, refusal to obey commands and leaking secrets. Members who violate the SDF Law are tried in ordinary courts just like other Japanese citizens.

If courts martial are established, punishment for violations of the SDF Law would likely be much more severe. On a TV program in April 2013, Shigeru Ishiba, secretary general of the Liberal Democratic Party, essentially said that since the severest punishment provided by the SDF Law is just seven years in jail, some SDF members may refuse to deploy to places where they could be killed. He said that if SDF members had to face the nation’s severest criminal punishment — “capital punishment, life imprisonment or 300 years’ imprisonment” — they would follow even dangerous deployment orders.

Clearly behind Ishiba’s statement is the idea that the threat of severe punishment would be needed to compel SDF members to follow high-risk orders. While Prime Minister Shinzo Abe has dismissed the introduction of a draft system as impossible under the Constitution, the prospect of possible involvement in overseas military conflicts, coupled with severe punishments against violations of the SDF Law, might increase the number of members who leave the SDF or serve as a disincentive for people to join the SDF.

A big problem with courts martial is that such trials are held behind closed doors. This creates a sphere beyond the control of ordinary courts, and essentially outside the country’s system of democracy. The German armed forces do not have courts martial because of the country’s experience with its Nazi past.

The LDP’s 2012 draft for constitutional revisions calls for the establishment of what is called the National Defense Forces, which would have tribunals or courts martial. Ishiba clearly said that trials at such institutions would be closed to the public, although defendants would have the right to appeal rulings. As long as court martial trials are held behind closed doors, the possibility cannot be ruled out that the rights of accused SDF members could be violated.

The Abe government’s moves to pave the way for Japan’s participation in military missions overseas alter the nature of SDF operations and could result in changes that affect not only the human rights of SDF members but the nature of Japanese democracy as well.

The public should be aware of the wider implications of the Abe administration’s decision to end Japan’s ban on exercising the right to collective self-defense.