Ⅳ. Case 2: Second Korean War (When Japan Legally Allowed to Use Force)

If the conflict on the Peninsula escalates, or even from the initial stage of military crash under certain scenarios, North Korea may possibly fire missiles against Japan’s territory or the U.S. Forces, Japan (USFJ). Pyongyang has a reason to do so because the US is launching (will launch) direct and indirect attack from the bases in Japan, and Japanese government is providing (will provide) logistical support to the US forces. If attacked by North Korean missiles or by other means, the GOJ would declare “Armed Attack Situation” and the SDF will be able to use force as an exercise of individual self-defense right.

By declaring “Survival Threatening Situation,” the new laws have made it possible for the SDF to use force as an exercise of collective self-defense right before Japan is actually attacked. As previously explained, the recognition of “Survival Threatening Situation” requires the US or the ROK to be attacked militarily by North Korea. And the attack on the US and/or the ROK must be considered to threaten Japan’s survival, or pose such a clear danger that Japanese people’s right to life, liberty and pursuit of happiness would be fundamentally overturned.

As for the capability, North Korea already possesses and deploys hundreds of medium-range missiles (No-Dong) covering almost whole territory of Japan and reaching there in less than ten minutes. Some of them are possibly with chemical warhead and even with nuke in the future. The missile defense system cannot defend Japan perfectly simply because North Koreans have too many missiles to intercept. It is also unrealistic to expect the US forces to destroy them all before the launch as they are fired from road-mobile launch vehicles. As for the intention, Pyongyang will be, once the battle starts on the Peninsula, always tempted to damage the US bases in Japan as well as Japanese facilities in order to sabotage the US attack and the SDF’s logistical support. If the intelligence suggests with certain evidence that North Korea is about to attack Japan, the GOJ is ready to declare “Survival Threatening Situation” even before Japan is actually attacked.

But wait a minute. As you may have already realized, it is also possible to argue that Japan’s use of force in the above case can be understood as the exercise of individual self-defense right. Although the international law prohibits the preventive attack, it admits the preemptive attack as legitimate if there is an imminent and unlawful infringement even before one party is materially attacked. Who would demand, in the above case, the Japanese government should wait until they are actually damaged and many Japanese citizens are dead and wounded?

The successive Japanese governments have also repeatedly expressed since 1950s that Japan can use force (as an exercise of individual self-defense right) before Japan is materially attacked if the enemy is considered to undertake an attack on Japan. For example, Prime Minister Ichiro Hatoyama stated in the Diet session of March 1956, “The purport of Constitution (Article 9) is not to sit and wait for death. From the point of view of legal principles, attacking the bases of (enemy’s) guided ballistic missiles in order to defend against them (before being attacked by the missiles) will be, in case there is no other alternative means, understood as self-defense (and thus constitutionally acceptable).” Regrettably, however, Japanese government has not really elaborated when the enemy is considered to undertake an attack on Japan as to legitimize the SDF’s use of force, and maintained vague but effectively strict interpretations as if the SDF should wait until being attacked.

Prime Minister Abe chose to introduce the notion of an exercise of collective self-defense right, while fundamentally leaving the vague but effectively strict interpretation as to when the enemy undertakes an attack on Japan. Rather, his administration seems to have made it even stricter in order to reject the idea of expanding the scope of an exercise of individual self-defense right. For instance, Foreign Minister Fumio Kishida stated in the Diet on July 3, 2015, “If we deliberately expand the notion of an exercise of individual self-defense right, we would possibly use force when an armed attack on Japan does not happen yet. Then we would violate the international law.”

On July 10, 2015, Abe also tried to explain his (incoherent) thoughts on when the attack on Japan is considered to take place as related to the conditions for declaring “Survival Threatening Situation.” Let me summarize what he said. First, an attack on the US forces by the DPRK should have been already existent on the Korean Peninsula. Second, an attack by North Korea such as missile launch on Japanese territory must be perceived as urgent. At this stage, however, the recognition of the mere danger of an armed attack on Japan alone is not sufficient to legitimize Japan’s use of force. In order to declare “Survival Threatening Situation” and let the SDF to use force before Japan’s homeland is materially attacked, Abe demands additional developments such as evident danger of an attack on the US navy ships, either carrying Japanese evacuees from the Korean Peninsula or being on alert for North Korean missiles against Japan.

Abe’s explanation illustrates how strikingly the notion of an exercise of collective self-defense right under Japan’s new national security legislations differs from that of other “normal countries.” More strikingly, it also suggests that Japanese government may not be able to securely defend the nation even under the new laws. What if, in the case Abe mentioned, North Korean Military launches a missile attack without or before attacking the US navy ships operating for the defense of Japan or carrying Japanese evacuees? More fundamentally, what if Pyongyang tries to attack Japan and USFJ before invading South Korea and attacking the United States Forces Korea? According to Abe and Kishida’s logic, Japan will have to wait and bear material damage before allowing the SDF to use force. That’s ridiculous!

The GOJ’s understanding of its exercise of collective self-defense right is problematic in terms of the alliance management, too. When the United States starts war with North Korea on the Peninsula, the USG may well expect the GOJ to declare either “Survival Threatening Situation” or “Armed Attack Situation” very soon. But the GOJ will have to say “Please wait until we find a sign that your navy ships, operating in Japan Sea for the defense of Japan or carrying Japanese evacuees, are at risk of being attacked by North Korea.” or “We cannot exercise the individual self-defense right when we perceive only the danger of North Korean missile attack on Japan because we believe it’s against the international law.” Ridiculous again! If the GOJ adheres to the existing explanation, Japan’s use of force either as an individual or collective self-defense right will almost certainly come later than the USG expects. My guess is that the GOJ will be forced to change the statements made by Abe and Kishida in the future. But what was the last year’s Diet debate, then?

Introduction of an exercise of collective self-defense right is not the purpose of Japan’s national security polity but the better defense of the nation. I would argue that Japan will be better defended by “carefully expanding the notion of an exercise of individual defense-right” than following Abe’s imperfect notion of an exercise of collective defense-right. More concretely, Japanese government should elaborate in accordance with the international law when they can legitimately start using force, or when the enemy is considered to undertake an attack on Japan.


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