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USJI Voice Vol.34

Japan's Anti-Terrorism Legal Framework and Its Future Direction

December 19,2017
Hideyuki_Ohsawa_USJI_Voice
Hideyuki Ohsawa
Professor, Keio University

Japan has not yet experienced international terrorism, this being a frequent occurrence in Europe and the United States. Of course, the Aum Shinrikyo cult released deadly sarin as a chemical weapon for mass murder in a subway at the heart of Tokyo. This attack in March 1995 inspired new tactics by international terrorists. In this respect, Japan is not entirely detached from international terrorism. New measures for preventing international terrorism are increasingly necessary, all the more so as over 30 million people are expected to visit Japan during the 2020 Tokyo Olympics. To begin with, what kind of legal framework is in place in Japan for countering terrorism and what kind of challenges does Japan face?

Notably, Japan lacks comprehensive legislation for countering terrorism. Admittedly, when the G8 Summit was hosted in 2008, the enactment of a comprehensive anti-terrorist act was discussed inside the government for ensuring a robust response to international terrorism. In dealing with organizations and individuals with an alleged involvement in terrorism, the discussion envisaged their (1) detention over a certain period, (2) deportation, (3) a search of their domicile, and (4) wiretapping for criminal investigation in order to prevent any attacks. But the idea never became a bill. Japan’s current anti-terrorism legal framework consists of multiple laws on different aspects of the prevention of terrorism. This article describes two aspects of the existing framework. First is the protection from terrorist infiltration by e.g., immigration control and the protection of key infrastructures. Second is the tracking of terrorists by e.g., monitoring the flow of funds, and collecting and analyzing relevant information.

Protection from terrorist infiltration

The most important step for protection against terrorist infiltration is to prevent foreign terrorists from entering Japan. In this aim, in May 2006 the Immigration Control and Refugee Recognition Act was amended to require prior reporting of the names of crew members and passengers (Article 57). Moreover, the revision in November 20, 2017 required foreigners aged 16 or greater to provide fingerprints and head shots for personal identification (Paragraph 3, Article 6). Any foreigners who refuse to provide their fingerprints and head shots are denied entry to Japan and deported (Paragraph 4, Article 7, and Article 10). In 2009, when the Alien Registration Act was abolished and the residence control was integrated by the Immigration Control Act, a new system was introduced to require the Minister of Justice to constantly monitor the necessary information for the control of mid- to long-term foreign residents (Article 19-3). Since the enforcement of the system in 2012, resident cards have been issued for mid- to long-term residents that indicate their basic identification information and addresses. Relevant information can be tracked as the cards are vital for opening bank accounts, subscribing to mobile phone services, and meeting many other basic needs of life. Anyone who forges or alters the card (v, Article 24-3), gives a false address and so forth, or breaches his or her duty to present the residence card (Article 75-2) is deported for undermining the foundation of this system.

Another measure for protection against terrorist infiltration is the protection of public transport, nuclear power plants, and other key examples of infrastructure. A key challenge identified for keeping public transportation safe is protection of Shinkansen bullet trains in anticipation of the 2020 Olympics. Yet, the only existing measure is increased vigilance inside stations and trains. This strikes a contrast with the United Kingdom and United States of America, where baggage is screened and stations are patrolled by police dogs. Unfortunately, camera monitoring is conducted only inside stations, not inside trains, with the protection of privacy in mind. The accident of Fukushima Dai-ichi Nuclear Power Plant clearly demonstrated that nuclear power plants can be turned by terrorists into dirty bombs. In response, a two-pronged concept of nuclear security was proposed to protect (1) nuclear and other radioactive materials, and (2) nuclear facilities, etc. Here, the key challenge is the ensuring the credibility of individual stakeholders of nuclear power plants. To address the issue, certain legislative revisions were made in Japan for the management of confidential information for better protection of nuclear materials. One example is Article 68-2 of the Act on Control of Nuclear Reactors, etc, which stipulates a duty of confidentiality regarding the protection of specific nuclear materials for commercial operations. But the change falls short of the rigorous security clearance practiced in the United States. The protection of the privacy of individual employees and necessary adjustments remain as obstacles to obtaining the necessary fingerprints and checking criminal records before introducing any security clearance system.

Tracking terrorists

An important measure for tracking terrorists is the monitoring of flow of funds. The expanding international networks of terrorist organizations today make it difficult to follow them. Tracking information related to the flow of terrorist funds helps overcome this problem and find how each terrorist organization operates and who contributes funds. Recently, Japanese legislation related to terrorist funds has undergone major changes. In 2014, three laws were enacted to counter terrorism—namely, a partial revision to the Act for Choking off Terrorist Funds, the Act for Freezing International Terrorist Funds, and a partial revision to the Act on Prevention of Transfer of Criminal Proceeds. These three laws were all enacted as requested by the Financial Action Task Force (FATF), an international organization. The partial amendment of the Act for Choking off Terrorist Funds punishes the provision and collection of funds and other material assistance, including land, buildings, and items (Paragraph 1, Article 2). The Act also punishes the collection of funds by collaborators, as well as indirect provision and collection of material assistance (Articles 3–5). In principle, the Act for Freezing International Terrorist Funds prohibits the transactions involving properties by terrorists identified by the National Public Safety Commission (Articles 3–4), including transactions of money, securities, precious metals, land, buildings, and cars (Article 9). It also prohibits transactions which involve specified terrorists on the other end (Article 15). The partial revision to the Act on Prevention of Transfer of Criminal Proceeds requires banks to manage customers involved in each transaction and clearly state their obligation to rigorously check such transaction in order to address risks of money laundering. Competent ministries define criteria for determining which transactions are suspected of involvement in money laundering.

The means to locate terrorists with high precision are also important for tracking them down. Notably, Japan’s Supreme Court ruled in March 2017 that searching and tracking the location of a vehicle of an individual by attaching a GPS terminal to it is illegal without the consent of the targeted individual or a warrant. Such GPS-based investigation, the court reasoned, constitutes a violation of the person’s privacy by constantly and exhaustively tracking the person’s activities. Still, the court pointed out the need for GPS-based investigation to be widely and effectively employed while striking a balance with human rights. Thus, it also urged for viable legislation by suggesting how the practice can become legal, for example, by specifying an investigation period, joint investigation with a third party, and ex-post notification. In this respect, attention should be paid to the way these means are incorporated into future legislation.

Future direction

As discussed earlier, Japan’s existing legal framework for countering terrorism needs to be adjusted through legislative amendments, for example, to make GPS-based investigation possible along with the protection of nuclear power plants from terrorists. The surge in the number of foreign visitors during the Olympics games may attract international terrorism. Legislative adjustment will also be necessary to address the risk. Considering the deteriorating situation with North Korea, comprehensive legislation for countering terrorism will be even more necessary. There are two possible approaches for enacting such legislation. The first approach, similar to the British legal framework, is to adopt a broad definition of terrorism and assign the necessary authority to the executive for countering terrorism. As suggested by the court precedence on GPS-based investigation, this approach will be difficult in practice given the concern among the Japanese public that anti-terrorist measures will violate privacy and other human rights. The possible alternative is the legislative approach led by the legislature under the rule of law while placing importance on the balance between human rights, and the power and organization of an anti-terrorist agency. The issues here, in dealing with crucial information for countering terrorism, are how the authority of the police and intelligence agencies should be defined and how an information sharing system should be built while avoiding human rights violations. In this respect, the likely approach is the establishment of an agency relatively independent from both the legislature and the executive in a manner resembling that of the independent inspector system in the United Kingdom and the Joint Counter-Terrorism Center in Germany.

 


Author
Hideyuki Ohsawa

Professor at Keio University (1989 – present). Prior to the current position, Hideyuki Ohsawa has worked as a Research Assistant with tenure at Keio University Faculty of Law (1977 – 1980), Assistant Professor (1980 – 1984), and Associate professor (1984 – 1989). He specializes in Japanese Constitutional Law and American Constitutional Law.

He has completed master’s and doctoral courses from the Keio University Graduate School of Law (1975 – 1980) and received a LL.M. degree from Harvard Law School (1982), and was awarded a Doctor of Laws degree from Keio University (1988).

He has published single-authored books: Gendai-gata soshō no nichibeihikaku (A Comparison of Modern Litigation in Japan and the United States) (1988), Amerika no seiji to kenpō (Politics and the Constitution in the United States) (1992), and Amerika no shihō to seiji (Courts and Politics in the United States) (2016).

He has also published co-authored books: Shimin seikatsu no jiyu to anzen – kakkoku no tero taisaku hōsei (Freedom and Safety in Civic Life – Counterterrorism Laws in the World) (2006), Jiyū to anzen ― kakkoku no riron to jitsumu (Freedom and Safety – Theory and Practice in Foreign Countries) (2009), and Henyo suru terorizumu to hou – kakkoku ni okeru <jiyu to anzen> (The Changing Nature of Terrorism and Counter-Terrorism Laws – Freedom and Safety in Various Nations) (2017) .
Contact at: ohsawa(at)law.keio.ac.jp

 


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