III. Case 1: Second Korean War (When Japan Legally Not at War)

Contingency concerning North Korean aggression is one of the most plausible cases where the Self Defense Forces will be required to use force. What have the new security legislations changed under such situation? In appearance, the new laws have brought significant changes. But closer examination will represent a bit different picture.

Typically, North Korea may crash militarily with the Republic of Korea and the United States across the Demilitarized Zone (DMZ). If the conflict is genuinely confined to local warfare in the peninsula, the Japanese government would recognize it to be “the situation that will have critical influence on the peace and security of Japan” by the law. Then the SDF will provide logistical support to the US (and possibly the ROK) forces and engage in the search and rescue operation. The GOJ will also let the US forces use Japanese ports and airports if necessary. It is important to understand, however, that Japan is not at war at this stage, therefore the SDF cannot use force in legal principle.

Abe revised “The Safety Assuring Law under the Situation that Takes Place around Japan and Will Have Critical Influence on the Peace and Security of Japan” which was enacted in 1999 into “the Safety Assuring Law under the Situation that Will Have Critical Influence on the Peace and Security of Japan” last year. The revision has not only removed the geographical limits of the SDF’s activity but also widened the scope of their logistical support mission. While acquisition and cross-servicing under the original law was possible basically in Japan’s territory, they can now be provided on high seas, and even in the territory of other countries if the permission of the government concerned is obtained. In case of the Korean Peninsula contingency, the SDF can provide logistical support in the territory of the Republic of Korea if Seoul says okay. The 1999 version of the law ruled out the SDF’s provision of both weapons and ammunitions to the US forces. The current version has made possible the provision of ammunitions. The previous ban on the fueling to the US fighters being ready for the combat mission on the Korean Peninsula was also removed.

The biggest change caused by Abe’s revision is concerned with the notion of “the rear area.” The original law prescribed that the SDF’s logistical support to the US forces and the SAR operation should be done in the territory of Japan, or on the high seas as for the transport and the SAR mission, where the actual exchange of fire is not taking place now, and is not expected to take place during the period of the SDF’s activity. This notion was devised as an excuse that the activity of the SDF, being not at war under Japan’s law, would not be seen as an integrated part of the American use of force. However, the Cabinet Decision as of July 1, 2014 changed it: the SDF can now engage in the logistical support activities even in the combatant area, as long as the exchange of fire between the US and the DPRK forces is not actually taking place there. Following the Cabinet Decision, the revised version abolished the provisions about “the rear area.”

But the fundamental contradiction that the SDF, being in the peace time by Japanese laws and prohibited to use force, provide the logistical support to the US forces, being at war, still remains in the revised law. Even the new condition for the SDF’s activity stated above will be disturbing for the American soldiers.

Furthermore, an article 6 of the revised law says that Minister of Defense must order the suspension of the logistical support and the SAR mission when it becomes impossible for the SDF officers “to engage in the activity safely and smoothly.” As a result, when and where the US forces can count on the SDF’s support will continue to be fuzzy, pending on the judgment by the Japanese government at the time.

The drafters may want to argue that it is not realistic to assume a situation where the US and the DPRK forces actually exchange fire on the Sea of Japan, as the US would dominate the sea and air control once the battle starts. Especially at the initial stage of the contingency, however, the US military planners will have to prepare for the worst-case scenarios. They must be frustrated with the ambiguity over when and where the SDF’s logistical support and SAR mission can be planned in.


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