Lawyers attempt to fill in the gaps in the GSDF’s heavily redacted South Sudan PKO logs

First published by The Japan Times（News/2017/08/06）

Legal team poring over logs that led to Inada's exit suspect redactions point to illegal activities

On July 28, then-Defense Minister Tomomi Inada announced her intent to resign, caving in after months of pressure over the apparent cover-up of logs detailing the worsening situation faced by Japanese peacekeepers in South Sudan last year. But what is in those logs that might have made a top minister feel it was worth risking her career to keep them secret? A court case now taking place in Hokkaido may offer some answers.

The Ground Self-Defense Force’s contentious five-year contribution to the U.N. peacekeeping mission in South Sudan ended on May 27. The government denies that deteriorating security conditions in South Sudan were the reason for the withdrawal, and had no doubt hoped to draw a line under criticism of the mission with the return of the last 40 service members to Japan.

But one woman is determined to keep the issue alive. The woman in her 50s, who goes by the pseudonym Kazuko Taira (Peace Child), is fighting a case against the government at Sapporo District Court. A resident of the Hokkaido city of Chitose, her son belongs to the GSDF’s Chitose-based 7th Division, members of which were deployed between last May and December to South Sudan for engineering work.

After the media covered Taira speaking out against controversial security legislation at a protest in Sapporo’s Odori Park in April 2016, she says her son “informed me that his superiors told him to warn me not to stand out as a campaigner. It seemed that they were annoyed that my activism could cost him his job.”

Not wanting to bother her son, Taira handed him a seven-page letter that month explaining her decision to sever communications with him. Since then, they have not been in contact.

The crux of the case

Taira’s lawyers argue that sending the GSDF to South Sudan was in violation of the Constitution’s Article 9 “peace clause,” which prohibits Japan from having a military or waging war. She is also demanding ¥200,000 in compensation from the state for emotional suffering caused by the infringement of her right to live in peace.

“I believe that this lawsuit strongly influenced the withdrawal of the GSDF,” she said after the second hearing in the case on June 1. “One of my aims has been achieved, but I feel angry because the government never explained the actual situation in South Sudan. The return of the GSDF must not be concluded with a happy ending.”

The plaintiff’s lawyers argue that the recent revision of the so-called PKO law — the Act on Cooperation for United Nations Peacekeeping Operations and Other Operations — to incorporate controversial security legislation passed in September 2015 violates Article 9.

The 2015 legislation allows Japanese forces to engage in combat abroad in defense of allies, which Taira and her lawyers argue is incompatible with Article 9, which forbids “the threat or use of force as means of settling international disputes.” They also believe that the deployment violated the plaintiff’s “right to live in peace,” as guaranteed in the Constitution.

The government asked the court to reject the case, and refused to disclose the redacted portions of the logs. The defendants have also denied the situation in South Sudan was as severe as the plaintiff’s counsel claims, calling it a subjective evaluation by the plaintiff.

Dealing with redaction

The June 1 hearing relied heavily on the GSDF’s daily activity logs from June to September 2016. A freelance journalist’s request last year for these logs sparked the scandal that led in large part to Inada’s resignation.

The Defense Ministry initially claimed the logs had been disposed of, only to later disclose that the ministry still had digital copies in its possession. Documents suggest Inada conspired with officials to withhold the fact that the ministry still had copies of the logs.

The daily activity logs note the deteriorating security situation in South Sudan’s capital of Juba in July last year, and describe the situation in South Sudan using the term “fighting” (sentō). The government, on the other hand, prefers the term “clashes” (shōtotsu).

The plaintiff’s lawyers pored over the 7,000 pages of logs, covering June 2 to Sept. 10, 2016. The legal brief prepared by the plaintiff lawyers runs to 300 pages. They maintain that this is the first time the logs from this period have been comprehensively analyzed.

“By just reading nonredacted portions carefully, you can see the fighting occurred frequently in South Sudan for three months,” says Yuki Hashimoto, the lawyer in charge of the examination. He estimates that between 20 and 30 percent of the logs have been redacted, but says that the redactions probably add up to 80 percent of what the lawyers would ideally need to know to fight the case to the best of their ability.

Asked about the reason for the redactions, the Defense Ministry declined to comment because the lawsuit is ongoing.

The lawyers suspect that unconstitutional actions by the GSDF in South Sudan have been blacked out by the ministry, particularly those that violate articles 1 and 2 of the PKO law.

“It is quite likely that the GSDF performed tasks such as providing security for troops from other countries. This seems to be the reason why the Defense Ministry tried to intentionally conceal the potentially damaging records of the troop’s activities during this time,” lead lawyer Hirofumi Sato says.

Evidence of acute danger

On Dec. 15, 2013, with Japan’s peacekeepers already part of the U.N. Mission in South Sudan (UNMISS), violence broke out in Juba between backers of President Salva Kiir and First Vice President Riek Machar. Clashes quickly spread to other locations.

“It means that it has been illegal to dispatch the GSDF in South Sudan from the official view of the Japanese government since 2013, three years before the conflict on July 2016,” lawyer Sato argues.

Using the logs, the lawyers are trying to prove that the situation in South Sudan remains precarious — that is, in a state of civil war — and that a cease-fire between the warring parties is not being upheld. The presence of a cease-fire is one of the “five principles of PKO participation” under the PKO law.

“We would like to reveal the reality that the GSDF members faced the possibility of being killed during PKO missions,” Sato says.

The daily logs from June state that “It is understood that it will take some more time before the agreement is implemented completely,” because Kiir refused to sign off on agreements reached with Machar. Then in July, because of the upsurge in fighting, Kiir removed Machar from his post and appointed a replacement, a move the U.N. did not accept, further delaying implementation of the deal.

“To show the increasing number of clashes after the fighting in Juba, it looks like the members of the GSDF created a ‘fighting’ (sentō) symbol consisting of a yellow circle with red jagged edges. These symbols start appearing on the logs’ maps from July 15,” Hashimoto says.

Throughout May and June, the logs detail escalating incidences involving gunfire around U.N. House — the United Nations headquarters in the Jebel area on the outskirts of Juba — and the Tomping base near the airport, where the GSDF was stationed.

On July 7, more than 30 bursts of gunfire were heard, lasting for about 15 minutes, from about 8 p.m., coming from southwest of the Tomping base. The next day, 50 tracer rounds were identified between 8:30 p.m. and 11.27 p.m. coming from the southwest and north of the base. On July 9, five exchanges of gunfire were heard between 4 and 5 a.m. coming from an estimated 1-1½ km away from Tomping base.

The Sudan Tribune reported on July 10 that heavy fighting erupted in Juba between Kiir’s Sudan People’s Liberation Army and Machar’s rebel SPLA-In-Opposition, concentrated around the U.N. sites in Jebel and by the airport.

According to the logs on July 10, an SPLA vehicle appeared to come under attack some 150 meters from the U.N. Tomping site, which sparked a battle in which mortars were fired. At around 11:06 a.m., there was an exchange of fire between SPLA and SPLA-IO near the Turkish Building to the south of the GSDF complex. The fighting between SPLA and SPLA-IO continued there and around U.N. House. At 4:15 p.m., the situation was tense in Juba as there were clashes all over the city.

The logs continue to report intermittent incidences of gunfire and shelling in the vicinity of the Tomping base until Sept. 7.

Questions about legality

The plaintiff’s lawyers also suspect the mission violated the second principle of the PKO law: that parties in a conflict must have given their consent to any operation.
After Kiir released a statement rejecting the deployment of extra foreign troops in Juba, the log for July 19 read, “The reinforcement of UNMISS may lead to fresh strains in relations with the South Sudanese government.”

Following a rally organized by the SPLA in Juba on July 20 to protest against the proposed additional foreign troops, the GSDF log for that day read, “With rising anti-U.N. sentiment among certain people in Juba, caution is required when encountering harassment and demonstrations.”

The anti-UNMISS movement was reported to have spread across the country, and that U.N. personnel were facing harassment, such as people obstructing their operations. The daily logs in August ordered GSDF personnel not to get involved in demonstrations against renewing the mandate of UNMISS.

Kenji Isezaki, who teaches Peace and Conflict Studies at the Tokyo University of Foreign Studies, believes that the five principles of the PKO law make little sense in the context of peacekeeping operations today.

In light of the bitter lessons of the 1990s — in Rwanda, Somalia and the Balkans, for example — the priority of peacekeeping operations has become the protection of civilian lives. In order to defend the innocent, regardless of whether a cease-fire agreement is being upheld or not among warring parties, U.N. peacekeepers no longer have their hands tied when it comes to using force.

“The dispatch of the GSDF to peacekeeping missions, not only to South Sudan but also anywhere else, is not workable because there is no court-martial system in Japan,” says Isezaki, who has served as a civilian worker in disarmament, demobilization and reintegration programs in East Timor, Sierra Leone and Afghanistan.

In 1999, the U.N. secretary-general issued a bulletin stating that while peacekeepers were permitted to use force in self-defense, international humanitarian law applied in these cases. In the event of violation of the law, U.N. peacekeepers were to be punished by the court system in their country of origin.

“Despite how U.N. peacekeeping missions have changed, the issue of the domestic legal framework has never been addressed in Japan. The reason is that establishing courts-martial, which implies recognizing the GSDF as a military force, would violate the Constitution. The GSDF has been given the safest jobs in the safest places during peacekeeping missions so far, but there were no safe havens in South Sudan. The events in Juba last July demonstrated that the GSDF was deployed to an area of active conflict,” says Isezaki.

Safeguarding civilians

The main mission of the GSDF in South Sudan was originally supposed to be construction, but this was likely changed to protecting internally displaced persons (IDPs) once the fighting intensified on July 10.

According to a report by the NGO Center for Civilians in Conflict (CIVIC), UNMISS hosted internally dispIaced people (IDPs) on what were known as Protection of Civilians (POC) sites attached to the U.N. House base in Juba. The violence in the city on July 10 led an additional 5,000 IDPs to seek refuge at the U.N. Tomping base.

The logs between July 8 and 10 show the Japanese unit working to create the conditions for protecting civilians as the situation on the ground and the UNMISS alert level fluctuated.

On July 11 and 12, the mission appears to have shifted focus, but the details are not clear because this portion is redacted.

However, the logs do say the following: “The details of the intention of the SPLA soldier(s)’ invasion today, on July 12, is unknown. As the same incident could happen again, extra vigilance is necessary.” The language used was ambiguous as to whether one or more soldiers was involved.

A day later, the logs mention a deterioration in the security situation due to an influx of SPLA soldiers within and around the base.

Finally, the daily activity logs reveals that women were at increased risk of sexual violence. On July 19, they noted that it seemed to be common that IDPs who left U.N. House POC sites in search of food were sexually assaulted by SPLA soldiers in the daytime around the mountain of Jebel Kujur. On July 20, it mentioned that 27 women who had left U.N. House POC sites were likely raped by SPLA soldiers over July 17 and 18. The daily logs called on GSDF members to protect themselves while at work, because crimes such as looting and sexual violence were widespread in the city.

“I can imagine that the GSDF members faced many dangerous situations and had a bitter experience in Juba last July. It could be possible that certain bad actors sneaked into the bases with civilians who rushed in, and that the fighting started there,” Isezaki says.

Ministry’s version of events

While the Defense Ministry declined to speak about the case or the content of the GSDF logs, the ministry’s Hokkaido Defense Bureau did hold a seminar back in March on the subject of “Peacekeeping Operations in South Sudan.” It proved to be instructive about the impression the ministry wishes to project about its mission to the northeast African country.

The captain of the 7th Division, 11th Infantry Brigade in Chitose, along with a captain who had recently returned from Juba, presented a report on the productive work the Japanese force had done there, such as improving roads and constructing prefabs for U.K. troops — all in nearly 50-degree heat.

He described how 13 female members of the GSDF team worked to spread education about empowerment among South Sudanese women. The defense bureau also showed pictures of the GSDF women wearing summer kimono demonstrating tea ceremony to peacekeepers from other countries.

Though the daily logs revealed in the Sapporo case appear to show that the GSDF force was involved in ensuring the safety of displaced locals, this issue — and the issue of sexual and other violence in and around the U.N. compounds in Juba — was not addressed at the seminar.

Likewise, no mention was made of what would have happened in the event that a GSDF member had accidentally injured or killed a civilian in what the logs make clear was a volatile situation. With no court-martial system in place, in theory a GSDF member would be tried in regular court under Japanese law for any potential crime committed during the mission.

“Military operations in foreign countries can be accused of being war crimes,” Isezaki says. “The daily activity logs are very important evidence in the event that there was any doubt about their legality. It would be absurd for a military organization to discard its daily activity logs.”

Isezaki believes that the furor over the missing logs was all because “the government was afraid of the truth about the fighting leaking out.”

Taira’s legal team has called upon the government to disclose the redacted portions of the daily activity logs. The next hearing in the case is scheduled for Oct. 17.