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Ryan, Trevor --- "Sea Shepherd v Greenpeace? Comparing Anti-whaling Strategies in Japanese Courts" [2009] NZYbkIntLaw 5; (2009) 7 New Zealand Yearbook of International Law 131

Last Updated: 14 April 2013


Trevor Ryan1

Abstr act

This article traces the dramatic arrest, indictment, and trials in Japan of anti-whaling activists from two environmental NGOs, Greenpeace (“the Tokyo Two”) and Sea Shepherd (Pete Bethune), arguing that the “Greenpeace approach” has higher prospects of achieving these organisations’ goal of bringing Japanese “special permit” whaling in the Southern Ocean to an end. It argues that, without firm evidence to the contrary, impugning the independence of Japan’s justice system with respect to these cases is unwarranted. The article argues that substantive Japanese criminal law provided some scope for allowing the legality of Japan’s “special permit” whaling to be canvassed in the Bethune case, but that Bethune’s primary objective was to have the case resolved quickly and request leniency. In contrast, the trial of the Tokyo Two has enabled Greenpeace to pose a strong challenge to the Japanese whaling industry through a prolonged case belonging to a tradition of “social litigation” in Japan, yet also occurring at a potentially watershed moment for the transparency of Japanese law and society.

1. Introduction....................................................................................... 132

2. Outline of cases ................................................................................. 133

A. Pete Bethune................................................................................. 133

B. The Tokyo Two............................................................................. 135

3. Decision to arrest and charge ..............................................................137

A. Bethune ........................................................................................137

B. The Tokyo Two.............................................................................140

C. Compromised justice? ................................................................... 143

1. Prosecutors .............................................................................. 143

2. The judiciary............................................................................146

4. Substantive law .................................................................................. 147

A. Criminal trespass .......................................................................... 147

B. Possession of a knife...................................................................... 149

C. Criminal damage .......................................................................... 149

D. Obstructing business .................................................................... 150

E. Assault .......................................................................................... 151

F. Theft ............................................................................................. 152

G. Terrorism? Piracy?......................................................................... 152

1 PhD, Assistant Professor, University of Canberra.


5. Proceedings........................................................................................ 153

A. Bethune ........................................................................................ 153

1. Verdict ..................................................................................... 153

2. Success? ................................................................................... 154

3. Reasons for failure ................................................................... 155

B. Tokyo Two.................................................................................... 162

6. Conclusion......................................................................................... 167

I. Introduction

Dangerous clashes between Japanese whalers and anti-whaling activists in the Southern Ocean have escalated in recent years, and the 2009-2010 whaling season was no exception. There were two particularly dramatic events this season. The first was the sinking of the Ady Gil, a high tech powerboat belonging to NGO Sea Shepherd activist Pete Bethune, after a collision with the Shonan Maru 2, a harpoon ship described by the Japan Fisheries Agency as the fleet’s security escort. The second was the boarding of the Shonan Maru

2 by Pete Bethune, and his subsequent arrest and indictment in Japan. These events overshadow the other front of the “whaling wars”, namely the trial of the “Tokyo Two” – two Greenpeace activists in Japan (Junichi Sato and Toru Suzuki) accused of committing theft and criminal trespass in the course of an investigation into alleged embezzlement in the whaling industry. This article does not discuss the merits of whaling. Rather, it compares and evaluates the two domestic trials in terms of how successful they might be in curtailing Japanese whaling in the Southern Ocean.

The structure of the article is based on a comparison of the two cases in terms of procedure, substantive law, strategy, and implications. In Part 2, I give a brief outline of both cases. In Part 3, I discuss the issues surrounding the decision of Japanese authorities to arrest and indict Bethune and the Tokyo Two. I argue that, despite allegations of political interference, there are other reasons that may explain why these two cases came to trial in the first place. In Part 4, I explain the substantive law relating to the various charges laid in each case. This is to dispel the myth that Japanese courts are a “rubberstamp” in criminal cases dominated by the Government or powerful prosecutors. In short, the law does make a difference: there are legal arguments that can be mounted in a successful defence. In Part 5, I analyse the proceedings in both cases, including a brief digression into the debate surrounding judicial independence in Japan. I suggest that, whereas Bethune’s defence was restrained and ambivalent, the approach of the Tokyo Two has been purposive and meticulously organised. Finally, in the conclusion, I argue that, as far as one domestic trial goes, the “Greenpeace approach” has higher prospects of success as a means of ending Japan’s “special permit” whaling in the Southern Ocean.

II. Outline of Cases

A. Pete Bethune

Pete Bethune, a New Zealand national, is an environmental activist known for designing a bio-fuel powerboat, Earthrace, and using it to circumnavigate the globe in 2007.2 He joined the anti-whaling cause after meeting members of Greenpeace and Sea Shepherd among his crew.3 He assisted Sea Shepherd in its attempt to obstruct the 2009-10 Japanese whaling expedition in the Southern Ocean. Japan claims that these annual expeditions constitute “research whaling” (chousa hogei), or “special permit whaling” permitted under the International Whaling Convention.4 Sea Shepherd asserts that the expeditions are actually disguised commercial whaling, which is banned under a moratorium imposed by the International Whaling Commission in 1982 (effective from 1985).5 This is also the position of the Australian Government, which launched proceedings against Japan in the International Court of Justice in May 2010.6

Though Bethune’s environmental credentials appear to be well established, part of his motivation in assisting Sea Shepherd appears to have been financial. Having made significant financial and personal sacrifices to build Earthrace, Bethune found a buyer for the boat in Sea Shepherd and its patrons, notably Californian businessman Ady Gil – hence, the boat’s change of name.7

Evidently, a condition of the sale was that Bethune would continue to captain the boat for six months.8 In short, the relationship between Bethune and Sea Shepherd (and its leader Paul Watson) was somewhat more complicated than a mere a union of conviction – Sea Shepherd reportedly still owes Bethune US$700,000 for the now destroyed boat. As discussed below, this is a point that may have influenced the shape of Bethune’s trial.

On 15 February 2010, Bethune boarded the Shonan Maru 2, a harpoon ship described by the Japan Fisheries Agency as the fleet’s security escort. He apparently approached the ship on a jet ski driven by an associate and – on a

2 Tony Wall and Nicholas Coldicott “Home Alone” Sunday Star Times (New Zealand, 23 May


3 Ibid.

4 ‘Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorising that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit ...’: International Convention for The Regulation Of Whaling (adopted 2 December 1946, entered into force 10

November 1948) art VIII(1).

5 Available at the International Whaling Commission website, <


6 For a summary of this action and the surrounding circumstances, see Donald Rothwell “Australia v. Japan: JARPA II Whaling Case before the International Court of Justice” Hague Justice Portal (International, 2 July 2010). Available at < eCache/DEF/11/840.html> .

7 Tony Wall and Nicholas Coldicott, above n 2.

8 Ibid.

second attempt after falling into the water – cut through anti-boarding nets with a knife.9 Sea Shepherd states that the boarding occurred under cover of darkness at 6:30am and went undetected until Bethune made his presence known to the captain of the Shonan Maru 2 at 8:00am.10 In an open letter to the captain, Hiroyuki Komiya, Bethune maintained that his purpose was to present a bill for US$3million for the alleged ramming and destruction of the Ady Gil on 6 January.11 In addition, his stated intent was to make a citizen’s arrest of the captain for the damage and the attempted murder of the six crewmembers on board the Ady Gil at the time of the impact.12 The crewmembers appear to have consisted of four New Zealand nationals, one Australian-New Zealand dual national, and one Dutch national.13 One is alleged to have suffered injuries including broken ribs.14 Bethune demanded that the Captain either accompany him to New Zealand on another Sea Shepherd vessel, the Steve Irwin, or return him to Wellington on the Shonan Maru 2.15

Instead, the Shonan Maru 2 escorted Bethune directly to Tokyo Bay and then docked in the port of Yokohama.16 Upon the ship’s arrival on 12 March, the Tokyo branch of the Japanese Coast Guard took Bethune into custody pursuant to an arrest warrant issued on the 11th by the Tokyo District Court. On the 13th, Bethune cooperated in an on-site investigation of the Shonan Maru 2.17 On the 14th, (after the maximum 48 hours), the Coast Guard referred Bethune to the Tokyo Public Prosecutor on suspicion of criminal trespass (of a ship).18 The Tokyo District Court granted prosecutors permission to hold Bethune in a Tokyo detention centre for 10 days, and then another 10 days extension (the maximum), while the investigation continued.19

9 “Sea Shepherd, investigation for assault too, Captain sent to prosecutors (shii sheppaado shougai yougi demo sousa, senchou o shinnyuu yougi de souken)” Sankei Newspaper ( Japan

14 March 2010).

10 Available at the Sea Shepherd Website<


11 Letter from Pete Bethune to the captain of the Shonan Maru 2 regarding Bethune’s intent upon boarding the Shonan Maru 2. Available at < news/news_100215_1_1_Letter_to_Shonan_Maru.pdf> [Bethune Letter].

12 “Sea Shepherd’s Bethune admits: ‘I entered to arrest the captain’ (senchou o taiho suru tame shinnyuu shita, SS no besuun yougisha ga kyoujutsu)” Yahoo News Japan ( Japan, 15 March


13 “Anti-whaling protesters ‘at law’s limit’” New Zealand Herald (New Zealand, 7 January


14 “Ady Gil sinks after whaling skirmish” ABC News (Australia, 19 April 2010). Available at

<> .

15 Bethune Letter, above n 11.

16 “Damage to the Shonan Maru 2 by Sea Shepherd, processing in Yokohama of trespassing captain, possible charges of assault too (SS higai no dai ni shounan maru, yokohama de mibun e, shinnyuu senchou, shougai yougi mo shiya)” Sankei Newspaper ( Japan, 24 February


17 “Coast guard inspects whaling ship” Kyodo News ( Japan, 14 March 2010).

18 “Sea Shepherd, investigation for assault too. Captain sent to prosecutors”, above n 9.

19 Ibid.

It soon became apparent that Bethune was facing more serious charges than at first thought. The Coast Guard expanded the scope of their investigation based on interviews with whaling fleet crewmembers and photographic and video footage collected by the crew of the Shonan Maru 2.20 Three crewmembers of the Shonan Maru 2 claimed to have suffered facial injuries after Sea Shepherd members (including Bethune) launched bottles of butyric acid on to their ship.21 On 1 April, the Coast Guard referred documentation to the prosecutors to support this and further charges of obstruction of business, knife possession, and criminal damage.22 The next day, Tokyo prosecutors indicted Bethune on the five charges. After a 6-week trial ending on 7 July, Bethune was convicted of all charges and sentenced to two years imprisonment with labour (suspended for five years). He was then promptly deported back to New Zealand, hailed by Sea Shepherd as an “inspiration in courage and dedication.”23

As of 8 May 2010, Japanese authorities have declined Australia and New Zealand’s request to cooperate in an investigation of the collision between the Shonan Maru 2 and the Ady Gil, ostensibly because Bethune’s trial was afoot.24 The Australian Maritime Safety Authority has stated that it cannot be definitive about apportioning blame for the incident without the cooperation of the Japanese authorities,25 and as of 14 July, Maritime New Zealand was yet to make a ruling on the incident.26

B. The Tokyo Two

The “Tokyo Two” refers to Junichi Sato and Toru Suzuki, two Japanese members of the environmental group Greenpeace. In January 2008, Greenpeace Japan was approached by a whistleblower from Japan’s whaling industry alleging systematic embezzlement and collusion involving private companies and public authorities.27 The whistleblower also alleged that this,

20 “Former Sea Shepherd Captain, assault charge backed with video footage (shii sheppaado moto senchou, bideo de shougai urazuke)” Yomiuri Newspaper ( Japan, 1 April 2010). Some of this material is available on the Mainichi Newspaper website < graph/20100106/index.html> .

21 “Damage to the Shonan Maru 2 by Sea Shepherd, processing in Yokohama of trespassing captain, possible charges of assault too”, above n 16.

22 “Sea Shepherd protest captain, extra allegations sent to prosecutors regarding assault (shii sheppaado kougi senchou o shougai yougi nado de tsuisouken e)” Mainichi Newspaper ( Japan,

1 April 2010).

23 Philippa McDonald “Deported whaling protester back in New Zealand” ABC News

(Australia, 10 July 2010).

24 Amy Coopes, “Australia unable to pin blame for Ady Gil crash” Google News (International, 8 May 2010). Available at < ALeqM5jQaRSZXRVNeQoio6FRpLhsszNDrQ> .

25 Ibid.

26 “McCully still neutral over whaling crash” Newstalk ZB (New Zealand, 14 July 2010).

Available at < ?storyID=178790> .

27 Greenpeace International “Whaling on Trial: Japan’s whale meat scandal and the trial of the Tokyo Two” (publication, 28 April 2010). Available at < international/en/publications/reports/whaling-on-trial> . While this author acknowledges

and other practices, such as targeted catches and dumping less valuable meat, supported the view that Japan’s government-funded special permit whaling is actually commercial whaling.28 On the basis of these claims, Greenpeace began investigations to determine whether crewmembers belonging to Japan’s monopoly whaling company Kyodo Sempaku were systematically siphoning hundreds of kilos of prime cuts of whale meat from the yearly catch of scientific whaling to consume or sell on the black market. Greenpeace also sought to determine whether this was wilfully overlooked by officials of the Japan Fisheries Agency. This Agency is responsible for overseeing whaling but is also a significant source of funding and personnel, in the form of “golden parachutes”, to highly remunerated positions in Kyodo Sempaku and the quasi-official Institute of Cetacean Research.29

In a meticulously documented investigation Sato and other members of Greenpeace traced thousands of dollars worth of whale meat from the primary Japanese whaling ship, the Nisshin Maru, to a delivery depot in Aomori prefecture in Japan’s north.30 On 16 April 2008, as part of this investigation, Sato and Suzuki removed from the depot one box (labelled “cardboard”) containing 23.5kg of prime cuts of whale meat apparently concealed beneath clothing.31 On 15 May, Greenpeace members presented this to a press conference before turning the whale meat over to the Tokyo Prosecutors Office as evidence to support the indictment of 12 crewmembers of the Nisshin Maru and potentially other individuals involved in embezzlement. Prosecutors confirmed on 20 May that they would investigate the allegations.32

On 11 June, prosecutors announced that charges of embezzlement would be dropped, and instead Greenpeace would be subject to an investigation.33

On 20 June, this culminated in the arrests of Suzuki and Sato for theft and criminal trespass, and raids on Greenpeace offices and homes.34 Involving over 70 police officers, this operation was surrounded by much fanfare from the media, evidently tipped off a day before the arrests.35 Sato and Suzuki were detained for the maximum of 23 days, and allege that they were subject to intensive interrogation at times involving physical restraints.36 At the trial stage, it became apparent that little evidence was gained over this

that this source presents the issue from the perspective of Greenpeace, until the case is reported it remains the most informative source given relatively scarce coverage in the Japanese media.

28 Ibid, at 3.

29 Ibid, at 42.

30 Ibid, at 5.

31 Ibid, at 5-6.

32 Ibid, at 41.

33 Ibid.

34 Ibid.

35 Ibid.

36 Ibid, at 2.

period not already provided by Greenpeace to prosecutors.37 Greenpeace and a number of other international organisations, including a committee of the United Nations38 and Amnesty International, complained to the Japanese Government that this constituted arbitrary detention and had the appearance of State intimidation of a legitimate NGO.39 After a number of “pre-trial meetings” designed to increase court efficiency (see below), the trial proper began on 15 February 2010 in the Aomori District Court. On

6 September 2010, Sato and Suzuki were convicted of theft and criminal trespass and were sentenced to one year’s imprisonment with labour, suspended for three years.

III. Decision to Arrest and Charge

In both cases, the defendants have levelled the accusation that their arrest was politically motivated.40 There are differing views about the independence of the various agencies in Japan with policing power.41 When it comes to indictment, the most authoritative English-language source on the Japanese procuracy – the monopoly holder of the power to indict – argues that it generally has a high level of institutional autonomy.42 Nevertheless, the allegations against the police, Coast Guard and the procuracy in both cases raise concerns that warrant consideration.

A. Bethune

In the Bethune case, the decision to arrest was not surprising given the broader context, outlined here. The peculiar but not unprecedented factor in this case is that Bethune effectively delivered himself into Japanese custody. A similar incident occurred in January 2008, when two Sea Shepherd activists boarded a Japanese whaling ship, the Yushin Maru 2. They did this to deliver a letter of protest after the Australian Federal Court granted an injunction under Australia’s Environmental Protection and Biodiversity Conservation Act 1999 (Cth) to restrain Kyodo Sempaku

37 “Report from the ‘Greenpeace Whale Meat Trial’ 4” Japan Alternative News for Justice and New Cultures ( Japan, 24 March 2010). Available at < . html> .

38 UN Human Rights Council Report of the Working Group on Arbitrary Detention A/HRC/10/21

(16 February 2009). Available at <> .

39 Greenpeace International, above n 27, at 43.

40 “Bethune slams trial, NZ action” The Japan Times ( Japan, 14 July 2010); Greenpeace

International, above n 27, at 2.

41 For critical views, see Walter Ames “Police and Community in Japan” in CJ Milhaupt, JM Ramseyer and MK Young (eds) Japanese Law in Context, Readings in Society, the Economy, and Politics (Harvard University Asia Centre, Harvard, 2001) 326; Karel Van Wolferen “The Enigma of Japanese Power” in David Johnson The Japanese Way of Justice (Oxford University Press, Oxford, 2002) 6.

42 David Johnson, ibid, at 138.

from whaling in the Australian Whaling Sanctuary.43 In that case an Australian Customs vessel, the Oceanic Viking, interceded to secure the return of the activists.

Though the question of who made the decision to arrest Bethune is unclear, there are indications that it could have been predicted. The Australian Government did not send a Customs ship to the Southern Ocean to monitor events during the 2009-10 whaling season. Even if it had, it is perhaps unlikely that a Japanese whaling vessel would have responded as the Yushin Maru 2 did in 2008. Under the (Japanese) Mariners Act 1947, such a matter is technically a decision of the captain of the vessel.44 It seems unlikely, however, that in the current climate a captain would make this decision without guidance from the various government and non-government Japanese bodies concerned with whaling, maritime security and diplomatic relations. As far as the likely content of this guidance goes, the position of Japan’s senior political leaders was clear. Japan’s Prime Minister,45 Foreign Minister46 and Agriculture and Fisheries Minister47 all called for Bethune’s arrest. These ministers stressed the deterrent effect of punishing what they regarded as violent obstruction of a legitimate activity. More importantly, the Japanese Government had already endorsed sending a strong message to anti-whaling activists through a new policy of arresting activists who board whaling vessels.48 This appears to be partly in response to critical (domestic) public reaction to the release of the two Sea Shepherd activists in 2008.49 It also seems to be partly in anticipation of Sea Shepherd’s response to future rulings (whether favourable or unfavourable to Japan) of the International Whaling Commission and even the International Court of Justice, if Australia continues to pursue its claim against Japan in that court.50

One other factor behind this arrest policy is that, in practice, escorting boarders back to Japan may be the only avenue for Japan to exercise jurisdiction over incidents in the Southern Ocean. Under domestic law, it is clear that Japan’s Criminal Code applies to acts that take place on a Japanese vessel, even when outside Japanese waters.51 Under international law – other than a

43 Humane Society International Inc v Kyodo Sempaku Kaisha Ltd [2008] FCA 3. This zone, not recognised by Japan, was designated by Australia in 1999 and covers a larger area than the International Whaling Commission-designated Southern Ocean Whale Sanctuary.

44 Mariners Act (sen’in hou) 1947, s 7.

45 “PM says arrest of Sea Shepherd member is a matter of course (shushou shii sheppaado membaa taiho ha touzen)” Nikkei News ( Japan, 12 March 2010).

46 “New Zealander in Tokyo JCG custody for whaler trespass” The Japan Times ( Japan, 13

March 2010).

47 “Akamatsu Agricultural Minister ‘Deal with this strictly. The stance toward Sea Shepherd to date has merely emboldened them.’ (akamatsu noushou, kibishii shobun o ukete morau, ima made no taiou ga shii sheppaado o zouchou sasete kita)’” Yomiuri Newspaper Online ( Japan,

13 March 2010).

48 Ibid.

49 Ibid.

50 Ibid.

51 Criminal Code of Japan 1907, s 1.

number of exceptions in the United Nations Convention on the Law of the Sea (UNCLOS) – Japan has exclusive jurisdiction over acts committed on a Japanese vessel.52 Japan could also assert universal jurisdiction if the acts fell under the definition of piracy under art 101 of UNCLOS.53 However, save these voluntary boarders, Japanese authorities typically do not have custody of an alleged offender. Assuming criminality, there is only limited scope for extradition under the normal avenues (to the United States and to South Korea only).54 Japan could request Interpol to serve arrests warrants issued by Japanese authorities, though this depends on cooperation among States. Four such warrants were issued against Sea Shepherd members in 2008 to no effect.55

Another option for Japan is to request cooperation from a specific State, for example, Australia or New Zealand. This can be done through informal diplomatic channels or the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (the SUA Convention).56

This Convention requires party States to prohibit and punish acts of violence against ships57 and provide assistance in criminal investigations relating to offences under the SUA Convention.58 It also enables a State to assert jurisdiction and detain and prosecute a suspect in a number of circumstances, including if the State is the flag State of the ship attacked.59 The applicable law would be the domestic law that party States are required to enact to give effect to the Convention, “punishable by appropriate penalties which take into account the grave nature of those offences.”60

At first glance, the SUA Convention may seem more applicable to the acts of Sea Shepherd than any laws concerning piracy. This is in part because the Convention has its origins in attempts to ensure the prosecution of politically motivated attacks (either in territorial waters or on the high seas).61 In other words, there is no requirement under the SUA Convention to demonstrate that the acts were committed for material gain. A prohibited offence under the SUA Convention is defined broadly as: “... an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of

52 1833 UNTS 3; 21 ILM 1261 (1982); United Nations Convention on the Law of the Sea

(adopted 10 December 1982, entered into force 16 November 1994), art 92.

53 Ibid. Some have claimed that Sea Shepherd’s acts border on piracy: Natalie Klein “Whaling protesters are behaving like pirates” The Australian (Australia, 18 February 2010).

54 See Japan, Ministry of Justice website < . html> .

55 “Arrest of Sea Shepherd captain (shi sheppaado senchouo taiho)” Nikkei Kansai Concierge News ( Japan, accessed 18 April 2010). Available at < kansai/news-review/index.asp?wrt_cd=7410 & bk_p_no=0> .

56 1678 UNTS 221; 27 ILM 668 (1988). Japan, Australia, and New Zealand have ratified.

57 Ibid, arts 5 and 6.

58 Ibid, art 12.

59 Ibid, arts 6 and7.

60 Ibid, art 5.

61 Yvonne M Dutton, “Bringing Pirates to Justice: A Case For Including Piracy Within the

Jurisdiction of the International Criminal Court” (2010) 11(1) Chi J Int’l L 208.

the ship”.62 The SUA Convention also gives jurisdiction to signatory States with a significant connection to the ship or persons involved.63 However, its mechanisms also depend on the relationship between the two States – in this case, strained by polarised positions on whaling. Indeed, the Convention hardly seems to be functioning at all – apparently on only one occasion has a State prosecuted a suspect pursuant to a request under the Convention.64

A Japanese request made under this Convention to Australian authorities in March 2009 with regard to allegedly unlawful acts on the part of Sea Shepherd did not result in charges being laid.65

In summary, the decision to escort Bethune back to Japan appears to have

been made pursuant to a predetermined policy driven by a lack of success

in pursuing the avenues discussed above. Moreover, the boarding could not

have been more fortuitous for the drafters of this policy. The evidence used

to convict Bethune had been meticulously gathered under the guidance of

the Japanese Coast Guard from the outset of the whaling season.66 This

cooperation with a private company and the extra-judicial pronouncements

of senior government members do raise concerns about the impartiality of

the arrest. However, to reiterate, the decision to take Bethune back to Japan

seems to have been made long before he boarded the Shonan Maru 2.

The arrest is a different issue to the decision to lay charges, which in Japan

belongs only to the procuracy. While some minor concerns were raised at trial

when it became apparent that the lead prosecutor escorted the key witness to

a doctor at an early stage of the investigation, there are no substantial grounds

to suggest that anything other than the merits of the case influenced the

prosecutors’ decision to charge Bethune.

B. The Tokyo Two

In contrast, the behaviour of prosecutors has become central to the trial of the Tokyo Two, in addition to the excessively manned and televised police operation against Greenpeace. The first issue relates to factors commonly pointed out as systemic problems with Japan’s criminal justice system. These include relatively long periods of detention before charging (up to 23 days), poor access to representation during these periods, and (typically unrecorded) intensive questioning in uncomfortable police cells.67 Prosecutors often used these cells instead of the Ministry of Justice-run detention centres mandated

62 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, art 3(2). An attempt is also a prohibited offence: art 3(3).

63 Ibid, art 6.

64 Yvonne M Dutton, above n 61, 209.

65 “Police raid Sea Shepherd ships” ABC News (Australia, 7 March 2010). Available at <http://>.

66 “Damage to the Shonan Maru 2 by Sea Shepherd, processing in Yokohama of trespassing captain, possible charges of assault too”, above n 16.

67 See for example, Daniel H Foote “Confessions and the right to silence in Japan” in CJ Milhaupt, JM Ramseyer and MK Young (eds) Japanese Law in Context, Readings in Society, the Economy, and Politics (Harvard University Asia Centre, Harvard, 2001) 328-30.

by law presumably because this is more conducive to extracting confessions.68

One important contextual factor that makes the Tokyo Two case seem incongruous is that there has been a discernable shift in Japan’s legal milieu over the past decade subsequent to the groundbreaking 2001 report of Japan’s Justice System Reform Council.69 Though not directly relevant to either of the cases considered in this article, one reason that matters of transparency, evidence, and procedure in criminal justice come to the fore is the introduction of a system of lay assessors to sit alongside judges in cases involving serious crimes.70

The problematic nature of these systemic features of Japanese process in this case does not relate to the matter of confession. Rather, Greenpeace and its supporters argue that they have been used to intimidate and silence an NGO critical of government policy.71 As already noted, Sato and Suzuki had already furnished prosecutors with any evidence that was to arise later at trial, yet prosecutors applied for an extension of detention. Prosecutors vigorously opposed bail, and when bail was set (at US$45,000 each), the initial terms prevented Sato and Suzuki from contacting each other, leaving the country and, in effect, working for Greenpeace for eight months.72

The second issue relates to the investigation of allegations of embezzlement in the whaling industry. As noted above, prosecutors dropped this case just as they decided to arrest the Tokyo Two. There are two factors that seem to vindicate this decision. First, the Ministry of Agriculture conducted an internal review, which found no evidence of embezzlement.73 Second, the decision not to prosecute the whalers was endorsed by a prosecution review panel.74 This is a group of laypersons selected randomly to investigate complaints with regard to decisions of prosecutors not to lay charges relating to a specific allegation.

With regard to the first factor – the internal investigation – questions remain, despite its conclusions. The details of the allegations are quite complex and cannot be fully treated here. In summarised form, the whaling company Kyodo Sempaku, while initially denying that crewmembers were permitted to take samples of whale meat upon returning from the Southern Ocean, later claimed that it in fact purchased some whale meat annually from the Institute for Cetacean Research to provide samples as “souvenirs” (o-miyage) for its

68 Ibid.

69 Japan Justice System Reform Council “Recommendations of the Justice System Reform Council: For a Justice System to Support Japan in the 21st Century” (12 June 2001). Available at <> .

70 See Kent Anderson and Leah Ambler “The Slow Birth of Japan’s Quasi-Jury System (saiban-in seido): Interim Report on the Road to Commencement” (2006) 21 Journal of Japanese Law 55.

71 Greenpeace International, above n 27, 10; Greenpeace International, above n 38.

72 Ibid, at 9.

73 Ibid, at 8.

74 “Prosecution review panel determines decision not to prosecute for taking whale meat sound (kujira niku mochikaeri wa ‘fukiso soutou’ kensatsu shinsakai ga giketsu)” Sankei News ( Japan, 25 April 2010).

crewmembers.75 There were a number of contradictions relating to quantity, price, and documentation within the company’s own statements and also at trial, between these statements and the testimony of some of the concerned crewmembers.76 Nevertheless, the Ministry accepted this report and took no further action. The Ministry was also uncooperative in its response to freedom of information requests made by Greenpeace to explain these contradictions. Large tracts of the documents that were released were entirely blacked out.77

At trial, it also emerged from the testimony of a whistleblower that the investigation by police and prosecutors of the embezzlement charges was far from thorough. According to this testimony, police seemed instead to be intent on having the whistleblower sign a prepared statement denying that he had personally engaged in embezzlement – a request he denied.78 As explored in more detail below, the defence team was through disclosure orders able to partially bring to light the evidence collected in the embezzlement investigation. Though largely stymied by an uncooperative prosecutor and an inconsistent position by the courts, more information about contradictions in the evidence of the whalers emerged through this avenue.79

The second factor – the determination of the prosecution review panel – could be fatal to the hopes of Greenpeace to expose alleged embezzlement in the whaling industry. These prosecution review panels were also overhauled in the wake of the report of the Justice System Reform Council. Previously, the decisions of the 11-member panel, envisaged to operate in a manner akin to the grand jury system of the US, were nevertheless routinely ignored by prosecutors.80 From 2009, the system was strengthened to ensure that if eight members of the panel were resolved that a prosecution should go ahead, an attorney would take on the case on behalf of the State.81 The panel has fairly broad powers to request necessary materials and testimony from prosecutors and other relevant persons.82 The system received some international attention when such a lay panel found that prosecution should proceed against political powerbroker Ichiro Ozawa for allegedly receiving illegal political donations.83

75 Greenpeace International, above n 27, 6 and 8.

76 Ibid; “Report from the ‘Greenpeace Whale Meat Trial’ 2” Japan Alternative News for Justice and New Cultures ( Japan, 20 March 2010). Available at < archives/2913187.html> .

77 Greenpeace International, above n 27, 17.

78 “Report from the ‘Greenpeace Whale Meat Trial’ 3” Japan Alternative News for Justice and New Cultures ( Japan, 22 March 2010). Available at < . html> .

79 Greenpeace International, above n 27, 22.

80 See Japan Ministry of Justice “White Paper on Crime” (2007). Available at <http://> . Only about a third of recommendations to charge were followed from 2002 to 2006.

81 For more details, see the Supreme Court of Japan website <


82 Prosecution Review Panel Act (kensatsu shinsakai hou) 1948, ss 35-38.

83 Jun Hongo “Panel votes to reopen Ozawa case: Prosecutors’ decision not to charge DPJ

kingpin ‘unjust’” The Japan Times ( Japan, 16 July 2010).

However, another change to the system is that a case may not be submitted to a review panel a second time if a panel finds that a decision not to prosecute was justified.84 This appears to mean that the determination effectively closed the investigation against the 12 crewmembers accused of embezzlement. Understandably, Greenpeace was very critical of the short timeframe in which the panel made its decision, particularly given that crucial evidence (for example, DNA testing of the whale meat) was yet to be submitted in the Tokyo Two trial.85 Therefore, even assuming that prosecutors had cooperated in the provision of evidence to the panel (perhaps unlikely given their uncooperative stance to providing this information to the Tokyo Two defence team), the panel was not privy to other important evidence relating to inconsistencies in evidence provided by whalers. Because the allegations extend beyond crewmembers to Ministry officials, and the staff of private and quasi-public organisations, the determination is not necessarily fatal to further investigations. However, without this, a key plank of any potential prosecution, it seems unlikely that such investigations will occur in the near future.

In addition to these two issues concerning the transparency of Japanese justice, the Tokyo Metropolitan Government has directed its own regulatory authority against Greenpeace. Since the arrests, it has increased the reporting and accounting burdens of Greenpeace under the NGO Act.86 Ultimately, under this Act, a non-compliant NGO faces being disbanded.87 Recent reforms, as part of the broader attempt to stimulate civil society and transparency in government, have increased the autonomy of NGOs.88 In particular, the reforms have reduced the connection between government funding and interventionist regulation.89 Nevertheless, this case suggests that various levels of government in Japan are still capable of creating a punitive regulatory environment for NGOs overly critical of Government policy. I return to this point below when discussing the broader significance of the Tokyo Two trial.

C. Compromised Justice?

1. Prosecutors

As already mentioned above, the most authoritative study of Japanese prosecutors in the English language depicts the procuracy as adept, well- resourced, and generally independent.90 This raises the question of why, when

84 Prosecution Review Panel Act (kensatsu shinsakai hou) 1948, s 41(8).

85 Greenpeace Japan “Prosecution review panel determines decision not to prosecute acceptable without waiting for important witness testimony (kensatsu shinsakai wa juuyou na shouninshougen o matazu ni fukiso soutou no giketsu)” (press release, 26 April 2010). Available at <> .

86 Greenpeace International, above n 27, 17.

87 Law to Promote Specified Non-profit Activities (‘NGO Act’) (tokutei hieiri katsudou sokushin hou) 1998, ss 31(7), 43.

88 See Robert Pekkanen Japan’s Dual Civil Society: Members Without Advocates (Stanford

University Press, Stanford, 2006) 22-4.

89 Ibid.

90 David Johnson, above n 41, 138, 156.

viewed as a whole, the actions taken by prosecutors in the Tokyo Two trial and, to a lesser extent, in Bethune’s case create the impression of bias toward the whaling industry. One possibility is that prosecutors have to some degree acted at the behest of senior figures in politics or the bureaucracy. Politicians certainly have an interest in capitalising on domestic support for whaling, or perhaps more accurately, the indignation with the strident anti-whaling stance adopted by the governments and citizens of “anti-whaling” nations.91

Furthermore, in its investigation into embezzlement, Greenpeace alleged that lawmakers and bureaucrats were implicated.92 If true, these figures would have an incentive to direct prosecutors away from any investigation of embezzlement and corruption.

There are four factors that militate against this possibility. First, the only ministry with any real supervisory capacity over the procuracy – the Ministry of Justice – is actually dominated by prosecutors rather than the other way around, due to recruitment and secondments.93 Second, while the closed hierarchy of Japan’s procuracy may lead to a “vulnerability” to political influence, prosecutors have an important stake in maintaining the appearance of independence.94 This is not due to any direct accountability to voters, but rather relates to how police and prosecutors function in Japanese society. Johnson gives the example of the widespread uncooperative attitude displayed by suspects and witnesses alike in the immediate aftermath of prosecutors’ lenient treatment (summary proceedings and a small fine) of a senior politician in an egregious political funding scandal in 1992.95

Third, the apparent bias might be explained without resorting to accusations of direct political interference. It is possible that bias on the part of the institution or individual prosecutors exists in relation to certain issues, such as whaling. Johnson suggests that, in a male-dominated procuracy, gender-related issues such as sexual assault may be one such example.96 This slightly more generous reading of prosecutors’ behaviour might explain a less-than-meticulous investigation of the embezzlement allegations. Such an attitude may also have been consolidated by the apparent success of Kyodo Sempaku in manipulating cultural connotations in the language of o-miyage (souvenir) in a country where it is common to return with gifts from any long trip away. There may also have been some institutional resentment toward a perceived usurpation of the role of police and prosecutors on the part of Greenpeace. A historical understanding of the traditional dominance of

91 Dan Bray “Spare a thought for the Japanese voice of anti-whaling” Crikey (Australia, 17

March 2010). Available at < japanese-voice-of-anti-whaling> .

92 Greenpeace International, above n 27, 17.

93 David Johnson, above n 41, 120.

94 Ibid, at 122.

95 Ibid, at 138.

96 Ibid, at 207.

prosecutors in Japan’s modern judicial system supports this theory,97 as does an appreciation of the fragile state of the NGO movement as a “regulatory” force in Japanese society, discussed further below.98

Fourth, the decision not to embark on an extensive investigation of the whaling industry may relate to structural factors, namely the weakness of prosecutorial powers of investigation in relation to political corruption relative to “everyday” crime. For example, prosecutors and police are not empowered to use subpoenas, wiretaps, undercover officers, or immunity from prosecution, all useful tools in a complex corruption case. Indeed, the primary tool and the “holy grail” of Japanese prosecutors seems to be the confession.99 This may work well for street crime, but confessions may be less forthcoming from high profile members of the political and bureaucratic classes, who are more likely to be questioned in the comfort of their home than in a police-run detention centre.100

This article does not present these four factors as a defence of Japan’s criminal justice system; merely to explore other alternatives to the direct political interference alleged by Greenpeace and Sea Shepherd.101 This article does, however, caution against impugning the Japanese justice system without considering some of its merits. One such merit is its relatively low crime rates, though the following example demonstrates that glib comparisons of statistics is often misleading. Perhaps the statistic most cited by foreign observers of Japan’s justice system is the 99.8% conviction rate. There are a number of factors that explain this figure. The first factor is the percentage itself. The Japanese rate includes partial acquittals;102 there is no arraignment system, which means that even uncontested cases go to trial;103 and the rate is similar to that of other jurisdictions with a similar legal heritage.104

The second factor is cautious charging policy on the part of prosecutors. As already noted, Johnson concludes that Japanese prosecutors are well resourced and meticulous in gathering evidence, and can therefore afford to be very prudent in their charging decisions.105 Furthermore, this prudence tends to become downright reluctance to indict without a very strong case for a number of reasons. The procuracy is characterised by an insular and hierarchical institutional structure that internally ‘penalises’

97 Miyazawa Setsuo “Law Reform, Lawyers, and Access to Justice” in Gerald McAlinn (ed)

Japanese Business Law (Kluwer Law International, Alphen aan den Rijn, Netherlands, 2007),


98 Robert Pekkanen, above n 89, 17-8.

99 David Johnson, above n 41, 244.

100 Ibid at 48.

101 “Bethune slams trial, NZ action”, above n 40; Greenpeace International, above n 27, 11.

102 David Johnson, above n 41, 216.

103 Ibid.

104 Ibid.

105 David Johnson, above n 41, 129. See also Makoto Ibusuki “The Japanese way of video recording in the interrogation room” (publication, 16 September 2009). Available at <http://> .

prosecutors who charge but fail to secure a conviction.106 Also, a number of recent scandals surrounding wrongful convictions may have increased prosecutors’ reluctance to try cases of questionable merit.107 Furthermore, the introduction of “lay assessors” involves new challenges in the courtroom that may make prosecutors even more prudent than before.108 Johnson also argues that suspending prosecution (not to be confused with suspending a sentence) allows prosecutors to reintegrate offenders into the community by short-circuiting the stigma and other negative repercussions that arise (in any culture) from indictment.109

2. The judiciary

In summary, there are problematic elements of the decisions to arrest in both cases, and in the case of the Tokyo Two, the decision to indict. Nevertheless, hard evidence would need to be produced to substantiate any claim that the indictments were made as a result of political pressure on the procuracy. The same argument can be made with respect to the judiciary. The degree of independence of Japan’s judiciary is a long-running debate in the English literature on Japanese law. On balance, Japan’s judiciary, and particularly the Supreme Court (the highest court), seems to defer more often than other modern democracies to the other arms of government, particularly on political issues such as defence and diplomatic relations.110 Assuming this is statistically true, the question is what explains this. Ramseyer argues that the judiciary is indeed subject to political influence, but only indirectly in the sense that the Japanese Government has been dominated by a one-party system, which therefore has an interest in appointing conservative judges to the Supreme Court.111 Miyazawa contends that these judges come from an elite background with similar values and goals to political, business, and bureaucratic elites.112

106 David Johnson, above n 41, 20.

107 See “Judge apologizes as Sugaya acquitted of 1990 murder in retrial” Mainichi Newspaper

( Japan, 26 March 2010).

108 For commentary on this new system, see Kent Anderson and Mark Nolan “Lay Participation in the Japanese Justice System: A Few Preliminary Thoughts regarding the Lay Assessor System (Saiban-In Seido) from Domestic Historical and International Psychological Perspectives” (2004) 37(4) Vand J Transnat’l L 935.

109 David Johnson, above n 41, 56.

110 Famous cases in this respect are the Sunakawa Case 13 Keishu 3225 (Supreme Court, 16

December 1959) and the 1073 Naganuma Nike Missile Site Case II 27 Gyousai Reishu 1175 (Sapporo High Court, 5 August 1976), which effectively endorsed Japan’s self-defence forces despite its “pacifist” Constitution.

111 Mark Ramseyer “Judicial (in)dependence in Japan” in CJ Milhaupt, JM Ramseyer and MK Young (eds) Japanese Law in Context, Readings in Society, the Economy, and Politics (Harvard University Asia Centre, Harvard, 2001) 84.

112 Setsuo Miyazawa “Administrative control of Japanese judges” in CJ Milhaupt, JM Ramseyer and MK Young (eds) Japanese Law in Context, Readings in Society, the Economy, and Politics (Harvard University Asia Centre, Harvard, 2001) 79.

Notably, neither of these theorists point to direct political manipulation, and any proponent of such a theory would bear the onus of providing clear evidence of interference. Instead, they point to pervasive, but indirect political influence. Haley presents a more compelling theory, namely that the hierarchical and bureaucratic nature of Japan’s judiciary creates an inherently conservative body of law that is nonetheless independent from politics.113 He argues that this system, whereby a centralised secretariat under the Supreme Court makes important personnel decisions (for example where and when a judge will be deployed), makes it inherently difficult for a chronic “dissenter” to progress through the ranks of the judiciary.114 However, he also stresses that this creates an autonomy and stability in Japanese law that is of considerable merit.115

In most modern democracies, it would perhaps not be considered necessary to establish the independence of the judiciary before considering the prospects of a case in light of the substantive law. However, the preceding paragraphs attempt to address accusations that these trials indirectly concerning whaling are little more than political show trials.116 Having done so, it is now imperative to reflect on the substantive law underpinning the charges in these two cases.

IV. Substantive Law

A. Criminal Trespass

Both Bethune and the Tokyo Two were charged with criminal trespass. The Japanese Criminal Code states:117

A person who, without justifiable grounds, breaks into a residence of another person or into the premises, building or vessel guarded by another person, ... shall be punished by imprisonment with labour for not more than 3 years or a fine of not more than 100,000 yen [approximately US$1000].

This charge is typically laid alongside property offences. However, it has featured controversially in a number of cases relating to political expression, typically involving an individual entering private land to distribute political and protest material. Japan’s highest court – the Supreme Court – has upheld convictions for such activity, though the penalty in such cases has invariably been a fine (for example, US$600) rather than a term of imprisonment.

113 John Haley “Judicial independence in Japan revisited” in CJ Milhaupt, JM Ramseyer and MK Young (eds) Japanese Law in Context, Readings in Society, the Economy, and Politics (Harvard University Asia Centre, Harvard, 2001) 89.

114 Ibid, at 91.

115 Ibid, at 94-5.

116 Mark Willacy “Anti-whaling activist to be made an example- lawyer” ABC News (Australia,

3 April 2010). Available at <> .

One recent example is the Tachikawa Anti-war Pamphlet Case of 2008.118

In this case, the defendant was convicted of trespass for entering the grounds of a Defence personnel residence to distribute anti-war material. While the legislation creates the defence of a “justifiable reason”,119 the Supreme Court has tended to interpret this narrowly as meaning authorisation by law. According to the Court, “authorisation” does not include exercising the Constitutionally guaranteed right to freedom of expression, at least in this and other similar cases.120 Moreover, the Supreme Court has found the mere fact of violating the right of possession suffices for a conviction, rather than evidence of actual harm.121

An earlier Supreme Court decision (in 1983) adopted a less narrow approach in its interpretation of a “justifiable reason”. This may have reflected an earlier era with different demographics and community values (relating to privacy, for example). In addition to assessing the attitude of the occupier in determining consent, this earlier judgment considered community notions of reasonableness given the nature of the premises.122 Some recent lower court decisions have followed this approach. For example, the defendant in the

2004 Katsushika Political Pamphlet Case was charged with trespass having distributed political pamphlets within a gated block of apartments displaying a “no pamphlets” sign.123 The Tokyo District Court acquitted the defendant, taking into account the “maintenance of legal order” and the layout of the premises, but also the purpose and manner of entry “in light of community standards”.124

Despite this line of cases, the narrow approach appears to be the current

prevailing view of the Supreme Court. Thus, the decision of the District

Court in the Katsushika case was overturned on (the prosecutor’s) appeal.125

Rather than delving into community standards and the subjective motives of the defendant, the Supreme Court emphasises the “maintenance of legal order”.126 In other words, it stresses the desirability in policy terms of allowing residents to determine the conditions upon which others enter their premises.

118 Tachikawa Anti-war Pamphlet Case 62 Keishu 5, 1217 (Supreme Court of Japan, 11 April


119 The Criminal Code also has a general provision stipulating that “an act performed in accordance with laws and regulations or in the pursuit of lawful business is not punishable”: s 35.

120 Tachikawa Anti-war Pamphlet Case; Katsushika Political Pamphlet Case Hanrei Jihou 1892,

150 (Tokyo District Court, 16 December 2004).

121 Ibid.

122 37 Keishu 3, 215 (Supreme Court of Japan, 8 April 1983).

123 Katsushika Political Pamphlet Case Hanrei Jihou 1892, 150 (Tokyo District Court, 16

December 2004).

124 Ibid.

125 63 Keishu 9, 1765 (Supreme Court of Japan, 30 November 2009.

126 Tachikawa Anti-war Pamphlet Case 62 Keishu 5, 1217 (Supreme Court of Japan, 11 April


B. Possession of a Knife

Possession of knives is subject to a penalty of up to two years imprisonment or up to 300,000 yen (approximately US$3500) under the Firearms and Swords Control Act 1958.127 Japan has recently toughened this law, which regulates the possession of knives, in response to a perceived increase in knife crime. When levelled against Bethune, this charge came under some scrutiny in the English media. In particular, the leader of Sea Shepherd, Paul Watson, impugned this “obscure law ... the same law that Emperor Meiji introduced in 1865 to confiscate the swords from the samurai.”128 The media reported that “the knife that Bethune used to cut the net to board the ship is being categorised as a sword.”129 However, as evident from the date of the law’s inception, this was not the original Meiji-era law used to emasculate the samurai but a later law introduced pursuant to an Occupation directive as part of its attempt to regulate weapons and bring peace and order to post-war Japan.130

On his arrival in Tokyo Bay and imminent to his arrest, Bethune surrendered the knife he had used to cut through the anti-boarding nets to the Japanese Coast Guard. He had concealed the knife on the Shonan Maru

2 and in his boot during his time on the ship.131 The 19cm blade (total length

33cm) Bethune was carrying was beyond both the old (15cm) and new (5.5 cm) maximum permitted blade length. For comparison, in 2007, the Kyoto District Court fined a man US$1200 for possessing a knife.132 However, in that case the defendant had behaved erratically, if not dangerously, toward a police officer while holding the knife, and was uncooperative at trial.133

C. Criminal Damage

Bethune was charged with the criminal damage of the anti-boarding nets of the Shonan Maru 2. This offence carries a penalty of up to three years imprisonment or a fine of up to US$3500.134 Japanese courts take a very dim view of vandalism, even to express a political message. In 2004, the Tokyo District Court handed down a suspended sentence of 14 months for

127 Firearms and Swords Control Act (juuhou touuken rui shoji tou torishimarihou) 1958, ss 22,


128 “Japan Charges Sea Shepherd Captain Bethune With Five Crimes” Environment News Service (International, 12 April 2010). Available at < apr2010/2010-04-12-02.html> .

129 Ibid.

130 Directive Prohibiting Possession of Firearms and Other Weapons (juuhoutou shoji kinshrei), Directive no. 300/1946.

131 “Arrested former Sea Shepherd Captain, knife concealed in boot (taiho no shii sheppaado moto senchou, buutsu ni naifu o kakushimotsu)” Sankei News ( Japan, 20 March 2010).

132 “Fine for unnamed man, ‘I can’t say anything’, Kyoto Court, Firearms and Swords Control Act violation (shimei fushou no otoko mi bakkinkei, subete iemasen, juutouhou ihan de kyouto chisai)” Sankei Newspaper ( Japan, 9 November 2007).

133 Ibid.

a defendant charged with damage to a building for spray-painting antiwar messages on a public toilet in a park.135 The Court summarily dismissed accusations by defence counsel that the prosecution had been pursued for political reasons.136 Perhaps unfavourably for Bethune and the Tokyo Two, the Court declined to demonstrate any leniency on the basis of the defendant’s political and pacifist motives. Similarly in 2003, prosecutors dismissed a “just motive” argument presented by two Sea Shepherd activists charged with criminal damage and obstructing business when exercising their jurisdiction over summary proceedings (see below).

D. Obstructing Business

In Japan, a person who obstructs the business of another by threat or force may be punished by up to three years imprisonment with labour or with a fine of up to US$6000.137 The whaling ships were reportedly out of operation for 31 days out of a season of 97 days, leading to a catch of 57% of the fleet’s proclaimed quota due to Pete Bethune and Sea-Shepherd’s activities,138 including causing collisions,139 playing loud music,140 sabotaging propellers with ropes,141 shining lasers at crewmembers,142 and using water cannons.143

One might argue that because the activity in question is purportedly research whaling conducted under the auspices of a government-funded non- profit research organisation (the Institute of Cetacean Research), Sea Shepherd’s activities could not have caused any harm to “business”. While the Supreme Court has held that it is not necessary to demonstrate actual loss for a conviction under this charge,144 some commentary has begun to suggest otherwise.145 At any rate, the Court’s interpretation of what constitutes “business” is very broad and covers, for example, religious as well as economic activities.146

135 2003 kei (wa) 1410 (Tokyo District Court, 12 February 2004).

136 Ibid.

137 Criminal Code of Japan 1907, s 234.

138 “Whale count for 2009 scientific whaling half of target through Sea Shepherd’s obstruction (09 nen do no chousa hogeisuu mokuhyou no hanbun shii sheppaado bougai de)” Nikkei Newspaper ( Japan, 13 April 2010). The reported catch consisted of 506 Minke whales (target

805) and 1 Fin whale (target 50).

139 “Sea Shepherd, investigation for assault too, Captain sent to prosecutors”, above n 9.

140 “Sea Shepherd attracts funding through extremist activities to buy equipment (shii sheppaado kageki katsudou de kifu atsume soubi jujitsu)” Yomiuri Newspaper ( Japan, 13 March 2010).

141 “Sea Shepherd protest captain, extra allegations sent to prosecutors regarding assault”, above n 22.

142 “Arrest of Sea Shepherd captain - a call for the case to progress duly through the courts (SS

senchou taiho shukushuku to shihou tetsuzuki o)” Mainichi Newspaper ( Japan, 13 March


143 “Two whaling ships return after Sea Shepherd clashes” The Japan Times (Japan, 12 April 2010).

144 15 Keishu 573 (Supreme Court of Japan, 7 May 1936).

145 Hiroyuki Nishida Various Theories in Criminal Law (keihou kakuron) (4 ed, Koubundou, Tokyo,

2007) 94, cited in Kouji Adachi “Theft of bank card numbers, criminal trespass, and fraudulent obstruction of business (ginkou ATM riyoukyaku no kaado anshoubango tou no sesshu to kenzoubutsu shinnyuuzai gikei gyoumu bougai zai)” (2008) 319 Ritsumeikan L J 104.

146 27 Keiroku 643 (Supreme Tribunal, 24 October 1921).

A close precedent to the Bethune case was the conviction of a United States environmental activist for cutting through fishing nets in Nagasaki Prefecture to release dolphins from capture. In that case, electing a full trial and arguing that he was defending animal rights, the defendant nonetheless received a six month suspended sentence, and was deported.147 More recently, two Sea Shepherd activists were arrested for obstructing business and criminal damage for similar activities in Taiji, the setting for the Oscar- winning documentary, The Cove.148 In contrast, these two activists elected the summary procedure, and avoided full indictment by agreeing to pay fines of US$3500 and US$6000 respectively.149 For comparison on a different fact situation, one defendant convicted of putting needles into a rival company’s food product received a suspended sentence of 18 months with labour from the Tokyo District Court in 2002.150

E. Assault

The most serious charge was assault occasioning actual bodily harm. The

Japanese Criminal Code states:151

A person who causes another to suffer injury shall be punished by imprisonment with labour for not more than 15 years or a fine of not more than 500,000 yen [approximately US$6000].

Three crewmembers of the Shonan Maru 2 claimed to have sustained facial injuries as a result of being attacked with butyric acid on 11

February.152 While Bethune denied intending to injure anyone, in Japanese law it suffices that an accused intended to commit the act that causes the harm – not necessarily to bring about that harm.153 Like many jurisdictions, Japan attributes full criminal responsibility even to degrees of intent that are less than clear purpose and knowledge, yet more than mere negligence. Known as dolus eventualis in civil law jurisdictions, one such degree of intent refers to the case where a defendant ‘reconciles himself ’ with the fact that the conduct may result in the occurrence of the material element of a crime.154 In the common law tradition, the closest equivalent is criminal recklessness.155

147 Hisashi Hamaguchi “A Report on Sea Shepherd’s Crime in Taiji, Wakayama Prefecture (umi no banjin soudou ki shii sheppaado ni yoru kujira iruka rui oikomi ryou shikiri ami setsudan jiken o megutte)” (2005) 39 Sonoda Women’s College Studies 44.

148 Ibid, at 42.

149 Ibid, at 42.

150 2002 kei (wa) 1412 (Tokyo District Court, 8 July 2002).

151 Criminal Code of Japan 1907, s 204.

152 “Sea Shepherd, investigation for assault too, Captain sent to prosecutors”, above n 9; “Sea

Shepherd protest captain, extra allegations sent to prosecutors regarding assault”, above n 22.

153 4 Keishu 11, 2239 (Supreme Court of Japan, 9 November 1950).

154 Gerhard Werle and Florian Jessberger Principles of International Criminal Law (TMC Asser

Press, The Hague, 2005) 113.

155 Ibid.

While the law on intent is not entirely settled in Japan,156 appeal courts have held that it is sufficient to show that the defendant was aware of or foresaw the circumstances constituting the offence.157 In other words, it would not be necessary to demonstrate that Bethune had resolved that the bottles would hit any crewmember of the Shonan Maru 2, or even hoped for this result.158 Instead, it would be sufficient to show beyond reasonable doubt that he had “reconciled himself ” to the fact that this may occur.

Thought the penalty on the books is up to 15 years imprisonment with labour, in 2003 the Tokyo District Court sentenced one defendant to five years with labour for an assault at a train station. Moreover, the harm incurred was of a vastly different class to the Bethune case as the victim was beaten into a vegetative state.159

F. Theft

Sato and Suzuki were charged with theft. The Japanese Criminal Code states:160

A person who steals the property of another commits the crime of theft and shall be punished by imprisonment with labour for not more than 10 years or a fine of not more than 500,000 yen [approximately US$6000].

This describes the physical act constituting theft, but it is also of course necessary to establish the mental component, namely the intent to unlawfully appropriate property for oneself. I discuss this further below in relation to the defence argument presented in the Suzuki-Sato case.

G. Terrorism? Piracy?

Charges relating to terrorism and piracy were not laid. However, it is worth mentioning these given suggestions in the media that Bethune might be facing such charges.161 While Japan did enact anti-terrorism legislation in 2001, this was primarily aimed at allowing Japanese Self-Defence Forces to undertake a support role in the US-led war in Afghanistan.162 Also, in response to an increase in piracy off the coast of Somalia and the Gulf of Aden, Japan enacted anti-piracy legislation to enable Japanese Maritime Self- Defence Forces to protect Japanese and other commercial ships on the open

156 Encyclopaedia of Legal Terminology (houritsu yougo jiten) Jiyuu Kokuminsha (2006) 57.

157 1 Keishu 255 (Supreme Court of Japan, 6 May 1922).

158 Ibid.

159 2003 kei (wa) 910 (Tokyo District Court, 12 June 15).

160 Criminal Code of Japan 1907, s 235.

161 Samantha Hayes “Bethune facing piracy charges in Japan” 3News (New Zealand, 16

February 2010). Available at < Japan/tabid/417/articleID/142057/Default.aspx> David Mark “Sea Shepherd protester could face piracy charges” ABC News (Australia, 16 February 2010). Available at < .> .

162 Anti-terror Special Measures Act (tero taisaku tokubetsu sochi hou) 2001.

sea.163 This was partly to clarify the definition of piracy in domestic law.164

It seems clear that Bethune’s acts do not fall under the definition of piracy under that legislation, which targets the pursuit of private gain through overpowering a ship or taking hostages.165 However, the hard line statements of some Japanese lawmakers suggests that there may be some support for certain pundits’ calls to strengthen Japan’s piracy or other legislation in preparation for future incidents in the continuing “whale wars”.166

V. Proceedings

A. Bethune

1. Verdict

In this section, I compare the strategies employed by the defence teams in both cases in light of the substantive law detailed above. I begin with the verdict in the Bethune case. In its judgment, the Court found that at approximately 11:00am on 11 February 2010, Bethune caused butyric acid to come into contact with crewmembers on the deck of the Shonan Maru 2 by launching a glass bottle containing the acid.167 It found that Bethune was aware that crewmembers were on the deck at the time. The Court held that this act of violence, and the release of the foul odour of the acid, was part of Bethune’s larger project of obstructing research whaling undertaken by the Institute of Cetacean Research sanctioned by the Minister of Agriculture, Forestry, and Fisheries. The Court accepted that this caused facial chemical burns that took one week to heal. The Court also found Bethune guilty of criminal damage, criminal trespass, and (unwarranted) possession of the knife.

With regard to the main issue of contestation in the case, namely the

intent to cause harm, the Court found that Bethune, in aiming the launcher at crewmembers on the deck, had the purpose and knowledge required to infer criminal intent. The Court also noted that, even were this not the case, Bethune also had the lower degree of intent whereby he had reconciled

163 Anti-piracy Act (kaizoku koui no shobatsu oyobi kaizoku koui e no taisho ni kansuru hou


164 See Japan Foreign Ministry website <


165 Anti-piracy Act 2009, s 2.

166 “Coast Guard “a battle of nerves with no precedent”, indictment of former Sea Shepherd captain (kaiho keiken nai shinkeisen shii sheppaado moto senchou kiso)” Sankei Newspaper ( Japan, 3 April 2010).

167 Information about the judgment and proceedings were obtained though Sankei News “Live Courtroom” (houtei raibu). Available at <> . While not an official court transcript, this service, introduced by Sankei News upon the inauguration of the new lay-assessor system, provides very detailed (albeit edited) accounts of the proceedings of trials of public interest.

himself to the possibility that his actions would cause harm. In part, the Court inferred this from his stated knowledge that butyric acid has an extremely offensive odour. The Court held accordingly that this constituted sufficient awareness that it would be likely to cause physical harm if it entered a person’s eye. It found that Bethune had been aware of the possibility that the acid or fragments of glass could disperse and cause physical injury to the crewmembers and had thus sufficiently reconciled himself to possibility of this harm occurring.

The Chief Justice then stressed the gravity of the physical and mental harm suffered by the crewmembers and the failure by Bethune to compensate the victims for this harm. The Chief Justice placed Bethune’s actions in the wider context of what he regarded to be dangerous and malicious obstructive behaviour involving acts such as sabotaging the propellers of whaling ships with rope and shooting bottles of acid. This, he stated, was based on the ideological belief that scientific whaling is illegal. The judge denounced these “violent means to achieve ideological ends” and noted that the International Whaling Commission had condemned such activities. The Chief Justice stressed that Bethune agreed not only with the principles of Sea Shepherd, but also their “violent obstructionist activities”. He held that there was no way of regarding the motives and circumstances leading to the crime in a positive light. They were, he stated, a self-righteous and premeditated series of acts based on ideology and reckless to the safety of the crewmembers. The Chief Justice noted that Bethune had been struck off as a member of Sea Shepherd, but that for the above reasons, Bethune bore heavy criminal responsibility nonetheless. He stated that from the perspective of preventing similar future crimes, a severe penalty was to be considered.

However, the Chief Justice then turned to reasons for the Court’s decision to impose a suspended sentence despite these considerations. These were as follows. First, Bethune had admitted to all charges other than assault. Second, Bethune had stated in Court that he would no longer participate in anti-whaling activities in the Southern Ocean. Third, once the trial began, Bethune paid approximately US$1500 in compensation for property damage. Fourth, Bethune had no criminal record in Japan. Considered as a whole, the Court found these sufficient reasons to grant a suspended sentence.

2. Success?

Recall that the main purpose of this paper is to contrast the approaches adopted by Greenpeace and Sea Shepherd in bringing an end to Japan’s “special permit” whaling. If this is the criterion of success, one might conclude that Sea Shepherd’s approach in this case was unsuccessful. This is not because Bethune was found guilty on all counts. Indeed, from Sea Shepherd’s perspective, a martyr serving time in a Japanese prison may have been beneficial to its cause at an international level. Arguably, however, the most important audience to convince is the Japanese public. While the extreme

right (uyoku) protesters inside168 and outside the Court hardly represent mainstream opinion, it appears from a general survey of the Japanese media that Sea Shepherd’s methods are widely condemned by the Japanese public.169

Given the intense coverage of the case, Sea Shepherd may claim to have raised domestic awareness of Japan’s whaling activities in the Southern Ocean.

Unfortunately for Sea Shepherd, in this case it seems that not all news is good news – any substantial claims of animal cruelty and illegality have been lost amid the largely sensationalist coverage. Furthermore, from the perspective of the Japanese Government and policing authorities a suspended sentence achieves the appearance of punishment, without the diplomatic inconvenience of having such a martyr in a Japanese prison, a risk of which both were well aware.170 These comments might be taken to support Sea Shepherd’s claim that the outcome was a foregone conclusion and the Japanese political and justice systems acted in concert to eject a chastised Bethune from Japan as quickly as possible.171 However, this article has already addressed the question of institutional independence in the Japanese justice system. In the following section, I look more closely at other reasons why Bethune’s trial may have been a failure for Sea Shepherd.

3. Reasons for Failure

Bethune’s case arguably had some potential to successfully join a long history of cases in Japan that have prioritised the court’s role as a political, rather than a judicial forum. In this tradition, certain minorities and victims of environmental damage have teamed with certain socially-minded lawyers (often working pro bono) to use courts primarily to prolong rather than resolve disputes and thereby garner the sympathy of the attentive public.172 In contrast, the Bethune case was short and relatively simple. This was primarily because prosecutors were successful in containing the issues to the charge of assault.

To prolong his case in the manner of such ‘social litigation’, it would of

course be necessary for Bethune to mount a credible legal argument. The case law did (at a stretch) leave room for the argument that the boarding of the Shonan Maru 2 was justified. One factor perhaps favouring Bethune was that a foreign national’s boarding of a Japanese ship on the high seas was an unprecedented issue before the Japanese courts.173 Bethune could have

168 Two protesters were ejected from the Court.

169 See the Japanese news articles cited in this article.

170 Officials from the Ministry of Agriculture have been quite explicit about the balancing act between the chance to set an example with what they see as a strong case and playing into Bethune’s hands by allowing him to air the issue of whaling in a full public trial: “Akamatsu Agricultural Minister ‘Deal with this strictly.’”, above n 48.; “Coast Guard ‘a battle of nerves with no precedent’, indictment of former Sea Shepherd captain”, above n 167.

171 Sea Shepherd, “Whale Warrior Captain Pete Bethune Free to Return Home” (6 July 2010).

Available at <> .

172 See Frank K Upham Law and Social Change in Postwar Japan (1987).

173 “Damage to the Shonan Maru 2 by Sea Shepherd, processing in Yokohama of trespassing captain, possible charges of assault too”, above n 16.

argued that it was justifiable in terms of community standards (of fairness, for example), given the exceptional circumstances preceding the act. Boarding to present a bill for the destruction of the Ady Gil would be unlikely to meet this test, as service in Japan or elsewhere of a civil suit would have been the more reasonable course of action.

However, the chances of mounting a successful defence against this charge were admittedly slim. From the use of anti-boarding nets and water cannons, it can safely be assumed that Bethune’s entry upon the Shonan Maru 2 was non-consensual.174 Moreover, despite Bethune’s claims that he was exercising a right to a citizen’s arrest, Japanese, New Zealand, and Australian law (and evidently, international law)175 do not authorise a citizen’s arrest for an act (that is, the alleged ramming) that took place over a month earlier.176 Even an attempt to capitalise on the subjective test of some lower court decisions, it would still be necessary to show that Bethune sincerely believed that he was authorised to effect a citizen’s arrest. As to any argument that the Shonan Maru 2 had no right to be in the Southern Ocean, while not directly applicable, the Supreme Court has found that the occupier of a residence need not prove the legitimacy of his or her claim to possession for a conviction to proceed.177

The charge of obstructing business contained more potential for developing a defence. Despite the potentially broad scope of this offence to regulate political protests – with parallels to common law industrial torts – there are presumably limits to this. Were Bethune to press this point, the Court may have agreed to inquire into whether Japan’s whaling activities in the Southern Ocean constitute a legitimate and legal business. To canvass these issues, it would presumably have to hear testimony from expert witnesses, which would prolong the trial considerably. Even if the likely verdict remained unfavourable to Bethune, the trial would have taken on a greater significance as the first Japanese trial to directly address the legality of Japanese ‘special permit’ whaling. One can only speculate how this argument would have developed, but it could perhaps have drawn from an extensive body of precedent in Japanese law on abuse of rights.178

The offence of possession of a knife has a defence, namely voluntary

surrender. Bethune did in fact argue that he had surrendered the knife voluntarily and that, moreover, it had sentimental value as a gift from his family and was a standard possession for a ship’s captain. This charge and

174 The Supreme Court has held that this assumption can be made even without an explicit signage: 37 Keishu 3, 215 (Supreme Court of Japan, 8 April 1983).

175 Klein, above n 54.

176 In these jurisdictions, a citizen’s arrest is generally only permitted for “crimes in progress”: Code of Criminal Procedure (keiji soshou hou) 1948, s 213; Crimes Act 1961 (NZ), s 35; Crimes Act 1914 (Cth), s 3Z.

177 7 Keishu 5, 1042 (Supreme Court of Japan, 14 May 1953).

178 Veronica Taylor “Continuing transactions and persistent myths: contracts in contemporary

Japan” (1993) 19 MULR 378.

the fourth charge of property damage could perhaps have been contested on the grounds of necessity, as demonstrated by the Tokyo Two. Nevertheless, the Court found Bethune guilty, accepting the prosecution’s argument that delivering the knife imminent to arrest did not constitute voluntary surrender. The Court stressed that he had concealed the knife on board the ship without good reason for over a month.

In the circumstances, the defence team’s attempt to clear Bethune of the charge of assault was satisfactory. However, it could have been much better. While the prosecution had the meticulously collected evidence of the crewmembers of the Shonan Maru 2 at its disposal, this was hardly conclusive. The defence team’s primary argument was that the injuries were self-inflicted. It argued that the crewmembers designated to prevent boarding had used capsicum spray in pressure guns, and that the wind had blown this back in their faces. From this author’s armchair, it is impossible to comment on the likelihood of this. Moreover, having admitted to launching butyric acid – a potentially dangerous chemical known for its use in attacks against abortion clinics in the United States179 – Bethune had an insurmountable task in convincing the Court that he was not responsible for the chemical burns incurred by three crewmembers.

Nevertheless, it may have been useful to introduce a comprehensive narrative alleging conspiracy on the part of the crewmembers. For example, the crewmembers may have anticipated the attack (it was not the first of its kind) and inflicted the temporary injuries deliberately. The motive would be to create fuel for an increasingly bitter propaganda war with Sea Shepherd, or indeed a trial such as the one before the court. There was evidence supporting this narrative. The crewmembers disposed of or washed key evidence, for example the equipment they were wearing at the time of the alleged attack. When cross-examined, the crewmembers equivocated at times about the chain of events. Furthermore, there was (conveniently) no physician on board to give first-hand testimony about the likely cause of the injuries.

Ultimately, however, the defence team shirked from this admittedly risky narrative. Had it decided to seriously contest the charge, the defence team could have presented its own witnesses and physical evidence, including the conspicuously absent video evidence presumably in the hands of Sea Shepherd – the photographs of Bethune with the launcher show a cameraman immediately behind him.180 However, as with the rest of the trial the defence was restrained and ambivalent. It relied heavily on the line that if

179 Catherine Albisa and Lenora Lapidus “Symposium on The Regulation of Free Expression in The Public Forum: Protecting Speech; Preventing Violence; Ensuring Access to Reproductive Health Care: How Do We Draw The Lines?” (1995) 14 St. Louis U Pub L Rev 498.

180 See the Mainichi Newspaper website < . html> . The extent of Sea Shepherd’s video coverage of the incidents in the Southern Ocean was discussed in the trial in relation to prosecution suggestions that the boarding were part of a public relations (and funding) campaign implemented in collaboration with the television program Animal Planet.

Bethune did indeed cause the injuries he did not intend to do so and was suitably remorseful. This strategy effectively ruled out any aggressive cross- examination of the alleged victims using a narrative of conspiracy.

While this author can only speculate with regard to Bethune’s strategy, the transcript does provide some clues as to why this case was defended in such a lukewarm manner and why it did not therefore join the tradition of “social litigation” in Japan. The most striking impression from Bethune’s testimony and out-of-court statements was that he was a very reluctant martyr, even if his convictions appear to be genuine. The picture painted by prosecutors at trial was that Bethune was largely a pawn of Sea Shepherd’s leader, Paul Watson. Repeatedly, prosecutors tried to draw from Bethune admissions that he had acted under the direct instructions of Watson. This is presumably related to prosecutors’ longer-term goal of securing a conviction against Watson through avenues such as Interpol.181 It may also explain why Japanese authorities requested the Australian Federal Police to investigate two Sea Shepherd vessels docked in Hobart on 6 March 2010, the Steve Irwin and the Bob Barker.182 Bethune hailed Watson as a “great leader” and conceded that he had discussed the boarding with Watson beforehand. However, out of loyalty, or perhaps the prudence of a creditor (recall that Sea Shepherd reportedly still owes Bethune US$700,000), Bethune stressed that the decision was made of his own volition.183 Despite the prosecutor’s best efforts to implicate Watson, Bethune was also evasive about who directed him to use the launcher, and who directed a cameraman for the BBC television program Animal Planet to accompany Bethune on the jet ski.

One can also make some informed guesses about the advice Bethune received from his lawyers. Advocates from his US law firm seemed little qualified to advise Bethune on Japanese criminal law, and instead seemed more intent on representing the position of Sea Shepherd and, to this end, impugning the Japanese legal system.184 His Japanese lawyers, however, seemed to have focused on getting Bethune out of Japan as soon as possible. It is likely that they advised Bethune on the perceived existence of two “tracks” in Japanese justice.185 The first track is punitive, exemplified by the retention of the death penalty for certain grave crimes. The second track brings leniency from both prosecutors and judges, but is premised on active demonstration of remorse and, ideally, reparations. For example, as evident in the Bethune verdict, financial compensation to victims is generally considered an important step in demonstrating an offender’s remorse and reflection.186 In

181 “Coast guard seeks arrest of activist Watson” The Japan Times ( Japan, 1 May 2010.

182 “Australia searches Sea Shepherd ships on Japan’s ‘referral’” The Japan Times ( Japan, 7 March


183 Wall and Caldicott, above n 2.

184 Willacy, above n 117.

185 John Haley Authority Without Power: Law And The Japanese Paradox (Oxford University

Press, New York, 1991) 125.

186 David Johnson, above n 41, 115.

other jurisdictions, such payments might be regarded with great scepticism, yet in Japan the intent is generally assumed to be genuine.187 Furthermore, actual sentences are significantly less severe than the maximum sentence on the books, and about half of all sentences are suspended.188 Despite common stereotypes about Japan, this “restorative” approach does not necessarily derive from Japanese cultural traits such as inclusion (or exclusion) from the group. Rather, the lenient strain of Japanese justice appears to have roots in early 20th century German sociological legal thought.189 Accordingly, even an “outsider” or foreigner can take advantage of the lenient track – there is no evidence that foreigners receive “harsher” justice in Japanese trials.190

There are advantages of having this dual track system, and indeed it is consistent with contemporary notions of regulation that only escalate punishment when compliance is not forthcoming.191 However, the system also has problems in terms of the cornerstone of criminal law in a liberal society that an accused person is innocent until proven guilty. Though hardly unique to Japan, the dual-track system means that there are high stakes for defendants who protest their innocence on principle or against strong circumstantial evidence. If found guilty, there is a risk that this will be seen as a failure to demonstrate remorse.

This dilemma was probably presented to Bethune by his Japanese lawyers. In other words, he could concede most of the charges, demonstrate remorse, and receive a suspended sentence. Otherwise, he could stand on principle, attempt to politicise the trial, and face possible time in jail. There are multiple clues in the trial transcript that suggest Bethune’s lawyers channelled him toward the lenient track, despite ambivalence to this strategy on his part. The pleading at the very beginning of the trial is instructive in this sense. When Bethune was asked to respond to the allegations on the charge sheet, the following exchange occurred:192

Bethune: ... first, I deny the charge of assault. I had no intention to cause anybody any harm. Also, I admit throwing a bottle containing butyric acid, but there are various circumstances forming the background to that which I would like to make clear during the trial. I admit to the infringement of the Swords and Firearms Act. I also admit to cutting a net.

Tawada CJ: Do you also admit to the fact of trespassing upon the ship? B: I admit entering the Shonan Maru 2, but I had just cause to do so.

CJ: [clarifying an apparent misinterpretation] Do you also admit to the fact of trespassing upon the ship having cut the anti-boarding net with a knife?

187 Ibid.

188 Michio Yuasa and Akimichi Kishi Beginning Law (hajimete manabu hougaku) (2nd ed, Seibundou, Tokyo, 2002) 193.

189 Hiroshi Oda Japanese Law (2nd ed, Oxford University Press, Oxford, 2002) 414.

190 David Johnson, above n 41, 158.

191 See Ian Ayers and John Braithwaite Responsive Regulation: Transcending the Deregulation

Debate (Oxford University Press, New York,1992).

192 Note that this is a reverse translation, not Bethune’s original words.

B: Yes.

Lawyer: [responding to the judge] my client disputes the intent to assault, the causation, and the degree of harm incurred. He admits all the other facts.

The apparent misunderstanding appears to be a language problem. On another level, it reflects a difference between legal systems. In a common law jurisdiction such as Bethune’s native New Zealand, an accused might plead guilty or not guilty, referring to both mental and physical components of a crime. In a Japanese court, a full trial proceeds even if an accused concedes the facts ( jijitsu) on the charge sheet. This is related to the test for criminal responsibility in Japanese (and German) law. There is a threefold test: (1) does the act correspond to a specific crime in the code, (2) is the act illegal (without a recognised defence), and (3) is the accused blameworthy (with reasoning capacity).193 Accordingly, at the initial stage of this trial, the judge merely wanted to know whether Bethune admitted to the material component of the charge of criminal trespass. Defences could come later, should the defence team raise them.

However, on a third level, there seems to have been a misunderstanding between Bethune and his Japanese lawyers. While he appeared to wish that his convictions were made central to the case from the outset, his own lawyers effectively closed this down by narrowing the issues to be considered to those relating to the assault. This would be the correct strategy to elicit a lenient response: mount no defence for the four minor charges (but plead mitigating circumstances upon sentencing) and raise a reasonable doubt with regard to the most serious charge. The Chief Justice appeared more than willing to follow this route. Indeed, as soon as Bethune entered the witness box, the judge gave an unusual warning to Bethune and the defence team:

The primary issue of contention in this Court is the establishment of the offence of assault. This is not a place for the ideological assertions of a specific organisation unrelated to this purpose. In the case that unrelated matters are spoken of, I will limit questioning.

From a common law perspective such a statement seems redundant at best and reflective of bias at worst, considering that a prosecutor might be expected to take advantage of the rules of evidence relating to relevance. However, this pronouncement may not be entirely out of character in a jurisdiction, such as Japan, with both common law and civil law influences on court procedure. For example, while primarily an adversarial system, it is typical for time to be allotted for questions from the bench at the end of each witness examination.

The greater significance of this statement is the acquiescence of the

defence team to the narrow, depoliticised focus of the prosecutors and the Court. The quid pro quo is that the prosecutor would ask for a relatively light sentence (2 years) and expect an even lighter one (2 years suspended). The cost to the Sea Shepherd cause is that this approach effectively closed off substantial consideration of the charges of obstruction and criminal trespass,

193 Oda, above n 190, 416.

and thereby any treatment of the legality of Japanese whaling. While in their opening statement the defence team raised Bethune’s personal convictions and the allegation that Japan’s whaling was illegal, it did not use these points to contest the charges.

As detailed above, this author is sceptical of arguments that impugn the independence of Japanese courts without clear evidence. At the same time, there are clues in the transcript that the Court actively sought for artificial reasons to deliver its side of the “lenient track” bargain, namely a suspended sentence. The first reason for lenience was Bethune’s admission of guilt the four minor charges. Given the confusion surrounding Bethune’s initial pleading and his later attempts interspersed throughout the trial to justify his actions on the basis of his personal convictions, it cannot have been lost on the Court that Bethune had been somewhat corralled into admitting guilt over the four minor charges. Also indicative of this incongruity within the overall defence strategy was Bethune’s unconvincing (and probably ineffective) attempt to justify his actions and “reach out” to the Japanese public through his final statement condemning whaling.194

The second reason for lenience was Bethune’s promise to discontinue anti- whaling activities. At least on the record available to this author, Bethune made no such promise. The relevant exchange was as follows:

Prosecutor: ... please listen carefully to this question. When you responded to a question from your lawyer, you said that you would not again participate in a campaign in the Southern Ocean, didn’t you?

B: Yes. I think I probably won’t.

P: When you say “probably”, does this mean you are undecided? B: I can’t say what I will be doing in 20 years time.

P: For what reason do you currently think that you will not participate in Sea Shepherd’s activities again?

B: There are other activities that I can participate in to protect the environment.

P: Will you continue anti-whaling activities in areas beyond the Southern Ocean? B: At this stage, I haven’t clearly decided what activity I will do.

P: Will you continue to be a member of Sea Shepherd? B: I don’t know.

This could be read as the prosecutor attempting to discredit the defence team’s argument that Bethune was no longer a threat to whalers. However, even the most zealous prosecutor could not have anticipated such a cooperative witness in this respect (presumably to the defence team’s chagrin). One sign that the prosecutor was not aggressively pursuing Bethune was the failure to object to “new evidence” that Sea Shepherd had struck Bethune off its membership, evidently a strategic move by Sea Shepherd to increase Bethune’s

194 Even the strategy of addressing the court in Japanese seemed to backfire when Bethune accidentally stated that he regarded all Japanese people with contempt. His lawyer immediately corrected the mistake.

prospects at trial.195 Furthermore, the prosecutor did not pursue the ostensible reasons for his expulsion, namely, Bethune’s possession of dangerous weapons (arrows) aboard the Ady Gil.

The third reason for the Court’s lenience was that Bethune had no criminal record in Japan. It is unclear why the Japanese Court considered only his Japanese record. Moreover, the court could have taken into account as similar fact evidence Bethune’s involvement in the death of a Guatemalan fisherman in the course of navigating the globe in Earthrace.196 Though Bethune was not convicted for this separate incident, it may have demonstrated similar recklessness as a captain to maritime safety. On the other hand, the similar fact would probably have to be more similar to mount this argument under Japanese law,197 and the prosecution did not pursue the matter.

While not suggesting that the priorities of the Court, government, prosecutors, Bethune’s Japanese lawyers and Bethune himself were somehow deliberately synchronised, the overall impression of the trial was that the goals of all parties (except perhaps Sea Shepherd) were broadly aligned. Prior to the hearing, Bethune had indicated as much in an interview with the Sankei newspaper: “With regard to Sea Shepherd representative Watson’s desire to see a court battle, Bethune stated: ‘I can’t forgive Japan’s whaling, but I’m just a normal guy with a family, I’m not a fighter like the samurai. Watson is mistaken.’”198 For this reason, it is no surprise that the trial was over in six weeks (27 May to 7 July), a very short time by Japanese standards, and that Bethune was then summarily deported.

B. Tokyo Two

One reason why the Bethune case ended so quickly was that Bethune’s defence team opted not to introduce evidence and argument relating to the legality of whaling. As detailed above, it could have done so by disputing the charge of obstruction of business. Whether the judge would have permitted this evidence, and in particular the testimony of Japanese or foreign experts in international law, is another question. In the case of the Tokyo Two, this is precisely the strategy employed by the defence, albeit indirectly – each strand of its argument was related to the fact that Sato and Suzuki were attempting to expose embezzlement in the whaling industry.199

195 “Anti-whaling Campaigner Bethune Gets Suspended Sentence in Japan” The Environment News Service (International, 7 July 2010). Available at < jul2010/2010-07-07-01.html> .

196 See the Earthrace website < . doc> .

197 For example, in the Wakayama Curry Poisoning Case, evidence was accepted that the accused had attempted to use a similar poison in the past: (Wakayama District Court Judgment, 11

December 2002).

198 Sankei News “Live Courtroom” (houtei raibu). Available at <


199 Greenpeace International, above n 27, 15.

In contrast to Pete Bethune, the Tokyo Two were reasonably successful in contesting the issue of what the trial was “about”. A primary factor behind Sea Shepherd’s failure in this sense was evidently Bethune’s reluctance to risk his liberty any further. While Sato and Suzuki faced lesser charges, they have in no sense opted for the “lenient track” of Japanese justice through admitting guilt and demonstrating remorse. In this sense, the case belongs firmly to the social/political litigation tradition, which prioritises raising the profile of an issue by prolonging a trial and appealing to the attentive public’s sense of injustice.

The defence team for the Tokyo Two fought vigorously to have evidence admitted, including whistleblower testimony on alleged embezzlement, and expert witness testimony on international trends in the law on whistleblowers, freedom of expression, and the right to information.200 The prosecutor fought equally vigorously to have such evidence ruled inadmissible and, like the prosecutors in the Bethune case, thereby depoliticise the case.201 Indeed, apparently so concerned were prosecutors to prevent Greenpeace’s allegations from arising in court, the prosecutors sought to avoid the appearance in the witness box of the natural “victim” of the case – the crewmember purporting to own the box of whale meat. Instead, prosecutors portrayed the delivery company as the victim of the case.202 The prosecutor was also uncooperative in providing evidence that arose in the abandoned embezzlement investigation. This issue in particular was one factor behind the length of the case (over two years from arrest). This is because despite two appeals, the prosecutor successfully defended its right to withhold certain evidence about this investigation.

Suzuki and Sato also spent up to a year tied up in “pre-trial conferences” (kouhanmae seiri tetsuzuki). Pre-trial conferences were purportedly introduced for efficiency and to simplify the issues at trial in part for the benefit of newly introduced lay judges, as well as to enhance the quality of the justice system.203 The system also created new duties on the part of prosecutors to disclose evidence.204 Ironically, the prosecutor’s use of the new system in this case (which was not a case that fell under the new lay judge system at any rate) actually prolonged the trial by up to a year. Another element of the new system that can be used strategically by prosecutors is the fact that, once a pre-trial conference has occurred, “unavoidable reasons” are necessary to introduce new evidence later in the trial.205 An important victory for the Tokyo Two, therefore, was to secure the later admission of DNA evidence relating to the whale meat in question.

200 Ibid 21; “Report from the ‘Greenpeace Whale Meat Trial’” Japan Alternative News for Justice and New Cultures ( Japan, 19 February 2010). Available at < archives/2678536.html> .

201 Ibid.

202 Ibid.

203 Code of Criminal Procedure (keiji soshou hou) 1948, s 316-2.

204 Criminal Procedure Rules (keiji soshou kisoku), rr 217-19.

205 Code of Criminal Procedure 1948, s 316-32.

Despite these obstacles, the Tokyo Two were successful in opening the case up beyond a run-of-the-mill case of theft. In addition to their resolve, this may have something to do with the quality of their representation, which in turn is related to the location of the case within the tradition of social/political litigation in Japan. The Tokyo Two secured crucial allies by making its attack on whaling primarily an issue of human rights, including the protection of due process and freedom of expression. One powerful ally, despite an initial apparent distaste for becoming involved in a whaling issue,206 was the Japan Federation of Bar Associations. While not necessarily indicating institutional support, it is immensely significant that the lead counsel for the Tokyo Two is Yuichi Kaido, a member of the Federation’s executive with an impressive academic and practical record in human rights and civil society litigation.207 Like the general organisational strategy of Greenpeace, the Tokyo Two broadened their focus and wed their cause to a more established movement. The other plank of Greenpeace’s strategy was to renounce (and denounce) from 2008 the brand of confrontational methods it had itself once employed.208

While the roots of the domestic political rights movement lie much earlier, it faced a decisive defeat in the decision of the Supreme Court in the 1978 Nishiyama Case.209 In that case, a journalist who exposed a secret deal between the Japanese and United States Governments210 was in turn convicted of eliciting classified information from a public servant under the National Public Servants Act 1947.211 It was not lost on Yuichi Kaido, a protégé of the senior defence counsel in the Nishiyama case, that the Tokyo Two case was an ideal opportunity to revisit the issues of freedom of the media and expression that were canvassed there.212 In this sense, the trial of the Tokyo Two feeds into a narrative – promoted through justice system reforms – that Japan is entering a new age of transparency in government and a vibrant civil society.

This background informed the Tokyo Two’s defence. The first two

arguments were used not only to deny guilt, but also achieve Greenpeace’s primary goal of “hollowing out” the whaling industry from within by introducing evidence relating to the alleged embezzlement. Accordingly, counsel argued that Sato and Suzuki did not therefore have the requisite

206 On this point, see Greenpeace International, above n 27, 10.

207 Among other issues, Kaido has been involved in cases on prisoners’ rights, environmental protection, and childcare privatisation.

208 Mark McDonald “Japanese whaler and ecologists set sail for annual confrontation”

International Herald Tribune (United States, 21 November 2008).

209 32 Keishu 3, 457 (Supreme Court of Japan,31/5/1978).

210 The secret in question was the payment (in the name of the Nixon Administration) by the

Japanese Government of US$4 million to the people of Okinawa for land reclamation.

211 National Public Servants Act (kokka koumuin hou) 1947.

212 “Report from the ‘Greenpeace Whale Meat Trial 6’” Japan Alternative News for Justice and New Cultures ( Japan, 26 March 2010). Available at < html> .

mental component – intent to deprive for oneself – for their act to constitute theft. Rather, it was argued, their intent was to expose embezzlement. Moreover, counsel argued that their acts were necessary – a defence enshrined in the Criminal Code213 – to conduct the investigation, given that police had not been forthcoming in investigating the allegations themselves.

Defence counsel’s third argument reflected the primary goal of the movement for transparency, and human rights. The argument was that the pair had a right under international human rights law, for example the International Covenant on Civil and Political Rights, to investigate and expose wrongdoing on the part of government officials. This third argument is an important test of the tenor and effectiveness of recent liberalising reforms in administrative law (for example, freedom of information), of the law regulating NGOs, and the effort generally to revitalise Japanese civil society in response to economic stagnation and perceived over-regulation.214

It is also a renewed attempt to leverage international law against perceived excessive regulation over the media and NGOs.

It is significant that the Court admitted evidence relating to embezzlement

and accepted expert testimony from a Belgian specialist in the law on

international human rights as it relates to whistleblowers and NGOs. This

in itself arguably demonstrates an increased cognisance of international law

norms on the part of Japanese courts. It also demonstrates that the presiding

judge in this case – evidently, the same judge who decided the political

pamphlet cases detailed above – is open to some degree to revisiting the issues

decided in those cases.

Relative to the Bethune trial, the prospects for success on the part of the

Tokyo Two were reasonable. On the one hand, the quality of their arguments,

the methodical manner in which the defence team have discredited the

witnesses for the prosecution, and the compelling and consistent message

delivered by the defendants themselves in their introductory and final

statements increased the prospects of an acquittal, despite the general tenor

of the case law. Arguably, despite the ultimate result, given the reforms of the

past decade, at no time in Japan’s history was the milieu of Japanese law more

conducive to an acquittal on these facts.

Despite this, the Tokyo Two were ultimately convicted on both charges and sentenced to one year imprisonment with labour suspended for three years. Giving credence to the view that the result of the case is only one dimension of a broader struggle, the significance of the judgment delivered by the Aomori District Court on September 6, 2010 is hotly contested by the opposing sides.215 On the one hand, the Aomori District Prosecutor reinforced his view that the issue tried in the case was simply whether the facts amounted

213 Criminal Code of Japan 1907, s 35.

214 Justice System Reform Council, above n 70.

215 “Whale meat theft, Greenpeace guilty, court rejects defence on four points (geiniku settou, gureenpiisu yuuzai 4souten bengogawa shuchou sake)” Mainichi Newspaper ( Japan, 7

September 2010).

to the crime of theft and criminal trespass, implying that the trial was not about larger issues such as whaling or embezzlement.216 Supporting this view is the Court’s rejection of the “three pillars” of the defence described above, and the courts condemnation of the “audacious” (daitan) means adopted by Greenpeace to pursue its agenda through a criminal act.217 On the question of whether the defendants had “intent to deprive”, the Court held that such intent did exist because by opening the cardboard box and confiscating the whale meat they used the goods in a way that could only lawfully be performed by the owner.218 The Court rejected any argument that imposing a sentence infringed the Constitution or any international human rights treaty.219 It found that the acts were not justified because the acts of Sato and Suzuki amounted to search and seizure, which violated property rights and were not, therefore, permitted by law or community standards.220 The Court found that the pair exceeded the permissible scope of activity to conduct an investigation, even if they were conducted with the goal of promoting the public interest.221

This verdict – and the suspended sentences – were unsurprising in light of the precedents discussed above. The Court followed earlier judgments that imposed limits on the freedom of expression on the grounds of property rights and community standards. Nevertheless, in addition to condemning the judgment and lodging an appeal, Greenpeace has taken what it can from the judgment to portray it in the most advantageous light possible.222 It notes that the Court acknowledged that certain irregularities in the treatment of whale meat were improved as a result of the pair’s intervention.223 This acknowledgement, and the recognition that the Tokyo Two had a public interest purpose, leaves some scope for a reversal on appeal. However, as noted above, the higher courts (especially the Supreme Court) have tended to be less sympathetic to acts akin to political protest when they are in opposition to other values such as order and property rights.

Even with the conviction of Sato and Suzuki, as a chapter in Japan’s legacy of social/political litigation, Greenpeace Japan appears to have gained considerable sympathy from the international community. It may also receive sympathy from a Japanese public generally unreceptive to criticisms of whaling. This last possibility turns on the willingness of the Japanese media to realise the broader implications of the case for media freedom and report

216 Ibid.

217 Ibid.

218 Ibid.

219 Ibid.

220 Ibid.

221 Ibid.

222 Greenpeace Japan “Whale meat trial, unjust sentence of 1 year with labour suspended

(kujiraniku saiban, shikou yuuyotsuki choueki 1nen no futouhanketsu)” (press release, 6

September 2010). Available at <


223 Ibid.

it as a “human rights” story rather than a “whaling” story. So far, however, the media has shown much more interest in the sensational aspects of the Bethune case than the more immediate issues for Japanese society raised by the Tokyo Two. In this sense, the “Sea Shepherd approach” may actually be more obstructive to the “Greenpeace approach” than to the continuance of Japan’s “special permit” whaling in the Southern Ocean.

VI. Conclusion

The routes by which these two dramatic cases came to trial were problematic, particularly in the case of the Tokyo Two. Nevertheless, there are a number of structural factors that make it unlikely that either the procuracy or the judiciary were acting directly at the behest of vested political interests. A consideration of the substantive law in both cases demonstrates a body of precedent that is generally unfavourable to political activism as a defence in criminal trials. At the same time, each charge has some scope for a defence. The dilemma for a person under indictment in Japan is that mounting such a defence brings with it the risk of appearing unrepentant and suffering a more severe sentence if convicted.

In the Bethune case, it appears that the defence team pushed an ambivalent defendant toward the lenient “track” of Japanese justice, in the belief that this was the best means of achieving Bethune’s primary objective of returning home as soon as possible. There also appears to have been an alignment of goals. The Japanese Government and the procuracy were probably satisfied with a suspended sentence: a criminal conviction is no small matter, yet Bethune cannot now be portrayed as a martyr of the anti-whaling movement. The Court also seemed eager to accept the ambivalent “supplication” of Bethune and deliver a judgment consistent with the lenient “track” despite a good deal of artificial justification. One might speculate that the presiding judge was more than happy to retreat into a legalist approach focusing on a cut-and-dried assault charge, and thereby strip the case of its potentially awkward political implications.

The approach taken by Bethune was by no means the only strategy available. The strategy employed by the Tokyo Two provides a stark contrast. In that trial, the defence team employed every possible means at their disposal to either win or prolong the trial. A victory would have set an important legal precedent for the domestic political rights movement. Yet even a defeat achieves a public relations victory both on the international and (possibly) the domestic stage. Most importantly, the defence team has made shrewd use of the trial to expose evidence of embezzlement in the whaling industry that may otherwise have never come to light.

The success of the Tokyo Two on the “domestic front” can be overstated. For reasons explained above, it is unlikely that an official investigation into embezzlement will be reopened in the near future. Furthermore, there appears to be much more international sympathy for the Tokyo Two than

there is domestically. This may be connected to the sensationalist saturation media coverage of the Bethune case, hence the title of this article. Similarly, the “failure” of Sea Shepherd can be exaggerated, considering the different organisational philosophies. Paul Watson has stated that he believes that the immediate task of obstructing Japanese whaling is too urgent to prioritise domestic activities such as public relations and legal challenges.224 It is therefore somewhat of a straw man argument to compare approaches – the Bethune case was likely no more than the unanticipated upshot of Sea Shepherd’s standard operations on the high seas.

One other important difference is that Greenpeace appears to be better funded than Sea Shepherd. Given the intensely competitive environment for charitable fund raising, there may also be some substance to insinuations by the prosecution in the Bethune case that acts such as the dramatic night boarding are documented and designed for an audience of potential donors. If so, there may be a degree of circularity between Sea Shepherd’s methods and its sustainability as an organisation. Furthermore, Watson’s is perhaps a myopic view, given that physical confrontation and external pressure have so far made little difference to Japan’s whaling policy. Perhaps more accurately, the confrontational approach has strengthened the hand of vested interests in the whaling industry. These vested interests have adeptly linked this pressure to a narrative of “Japan-bashing” that resonates with the Japanese public, in addition to manipulating notions of Japanese culture such as o-miyage souvenirs.

As far as one domestic case can do so, the new approach of Greenpeace of hollowing out Japan’s whaling industry from within through a domestic public relations campaign featuring broad-based social litigation has posed an existential threat to Japan’s whaling industry. The extent of this threat is arguably evident in the disproportionate response to the allegations of embezzlement from vested interests, facilitated by institutions that, while independent, may be biased toward whaling. This in itself should make advocates of a more confrontational approach take note, especially given the potential damage the bad publicity of aggressive confrontation can do to the domestic, broad-based approach.

224 Mark McDonald, above n 209.

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