New Japan Self-Defense Force Missions under the “Proactive Contribution to Peace” Policy: Significance of the 2015 Legislation for Peace and Security
July 21, 2016
The bills under “the Legislation for Peace and Security” (hereafter “the Legislation”), a series of defense policy reforms passed in Japan’s Diet (parliament) last fall, went into effect in March 2016. The debate about the new legislation generated many arguments including such comments as “Japan is once again becoming a war-waging country like the former Imperial Japan.” Similar critiques can still be heard today, though public debate has subsided since the Diet passed the bills. Some of Japan’s neighbors seemed to share the views expressed in such criticism, but that does not correspond with what is prescribed in reality.
The Legislation consists of a new law and the revision of 10 existing laws. The linkages among the various stipulations are so complicated that even expert practitioners cannot understand the whole picture easily. It is conceivable that the technical nature of the legislation aroused the media’s criticism, which then influenced foreign media coverage and Japanese public opinion.
This commentary surveys the purpose and process of the Legislation and examines its significance in adapting the missions and mandates of the Japan Self-Defense Forces (JSDF) to a rapidly changing security environment.
Evolution of JSDF Missions and Mandates
The missions and mandates of the JSDF have been enhanced incrementally since the end of the Cold War (see Figure 1). The evolution took place generally on two tracks: One was to enable the JSDF to contribute more actively to international peace and security, and the other was to improve the effectiveness of JSDF primary missions such as national defense and domestic security. Japan’s security concerns have shifted from the potential for a direct military threat against the homeland, under the Cold War dynamic of East-West confrontation, to conflicts and instability in Northeast Asia and challenges against post–Cold War international order such as the proliferation of weapons of mass destruction (WMD) and terrorism. Accordingly, Japan’s defense policy has tried to keep pace with such changes and is now focused on expanding JSDF roles and missions as public perceptions of the JSDF have evolved. (For example, public opinion surveys after the Great East Japan Earthquake of March 2011, which placed a premium on effective humanitarian assistance and disaster relief, indicated the JSDF was the most trusted institution in government.)
Advancements were designed to improve the capacity of the JSDF to: (i) respond to a current or developing situation; (ii) prevent the recurrence of a traumatic failure to respond, such as during the Gulf War when Japan did not support Operation Desert Storm and was criticized for “checkbook diplomacy”; and (iii) solve deficiencies and weaknesses recognized through day-to-day operations and studies in the domestic political arena. For example, a series of temporary laws, or “special measures,” enacted to support Operation Enduring Freedom (2001) and Operation Iraqi Freedom (2003), as well as an Anti-Piracy Act introduced in 2009 to counter a surge of piracy around Somalia, typically fall under the first category. The International Peace Cooperation Act of 1992, which authorized JSDF peacekeeping operations (PKOs) in Cambodia, was driven mainly by difficulties with limited military options during and after the Gulf War rather than a specific request from the UN Transitional Authority in Cambodia (UNTAC) and applies to the second category. Successive amendments to PKOs based on lessons learned in operations and recommendations by studies thereafter fall under the third category.
Which category should the latest package of security reform legislation belong to? Discussions that informed preparations seem to suggest the third. There was neither a definitive traumatic experience like the failure to dispatch forces during the Gulf War, nor an urgent incident like the 2013 Japanese hostage crisis in Algeria, which proved the necessity and potential utility of land vehicles in noncombatant evacuation operations (NEO). In addition, it will take several months to implement the reforms mandated in the legislation: No one can expect the new reforms to address imminent or developing situations under the first category. On the other hand, the Legislation relates to as many as 11 laws unique to the third category. It is true, of course, that no legislation can be totally independent from current situations, but the Legislation this time seems intended primarily to enable the JSDF to assume their roles more effectively in the existing security environment in a broader sense.
The Issues Defined
The Legislation has its origin in discussions by the “Advisory Panel on Reconstruction of the Legal Basis for Security” (the Panel) established by the first Shinzo Abe administration in 2007. The Panel was tasked to examine whether Japan can take necessary actions effectively, under the existing laws, in four hypothetical cases: (i) an attack against U.S. naval vessels operating with the JSDF; (ii) the launch of a ballistic missile flying over Japan toward the United States; (iii) the use of arms in UN Peacekeeping Operations (UNPKOs); and (iv) logistical support operations for international peace and security. The Panel recommended legislative and administrative improvements in June 2008, including the limited exercise of collective self-defense, based on the understanding that the foundation of Japan’s security strategy consists of its own efforts, the Japan-U.S. alliance, and joint efforts by the international community. (Though Japan has an inherent right to collective self-defense under international law—and specifically the UN Charter—legal specialists in the government had long rejected that right as exceeding the “minimum extent necessary” for Japan’s defense.)
The recommendations were shelved for nearly five years until the Panel was reconstituted under the second Abe administration in February 2013. The Panel examined additional cases, including so-called grey zone contingencies that run the risk of escalation but fall short of armed conflict, and submitted a report recommending that the government of Japan (GOJ) reinterpret Japan’s Constitution to introduce a new series of defense policy reforms. The report included eight core issues summarized as follows:
- Article 9 of the Constitution renounces the threat or use of force as a means of settling international disputes involving Japan as one party: It does not prohibit those justified by international law, such as self-defense, peacekeeping, and UN collective security measures, and military capabilities to exercise them.
- The right of self-defense is limited to the minimum necessary extent, which is constitutional as noted above, and includes the right of collective self-defense. Japan can exercise collective self-defense when an armed attack against a country in close relations with Japan has the potential to significantly affect Japan’s security.
- As to collective security measures based on Chapter VII of the UN Charter, Japan can participate in military as well as nonmilitary options.
- The so-called ittaika theory (integration in the use of force with other militaries, which government legal specialists had deemed unconstitutional) has no clear basis either in existing law or judicial rulings. Logistical support to foreign combatants should be considered as a political decision, not as a constitutional matter.
- Japan’s dated principles on participation in PKOs, which require consent from “all parties” and not a de facto cessation of hostilities but a cease-fire agreement, should be reviewed. Using weapons to rescue PKO participants from other countries/organizations, or to remove obstructive attempts against missions of a PKO, does not constitute the use of force.
- It is legitimate to use weapons for NEO or to thwart attempts at obstructing those operations.
- JSDF participation in antipiracy operations and other activities recognized as exercises of universal jurisdiction, or as supplements to legitimate law enforcement with the host state’s consent, does not constitute the use of force.
- The JSDF can constitutionally take minimum necessary actions, either as self-defense or as law enforcement, to repel such infringements as non-innocent passage by foreign government vessels, a surprise landing by a special unit on a Japanese remote island, and an assault or sabotage by terrorists or armed agents as long as they are legal under international law.
After discussions among the ruling parties, the Abe cabinet announced defense policy reforms in July 2014 subject to legislative review in the Diet. The cabinet decision identified four areas—diplomacy, Japan’s own defense capabilities, the Japan-U.S. alliance, and trustful and cooperative relationships with partners inside and outside the region, as means for the government of Japan to fulfil its responsibilities to maintain Japan’s peace and security and ensure its survival. The announcement also stated three reasons why it was necessary to introduce a package of legislative reforms: to avoid armed conflicts and prevent threats through deterrence enhanced by further elevating the effectiveness of Japan-U.S. security arrangements; to resolutely protect Japanese nationals and their peaceful everyday lives against any contingency; and to contribute even more proactively to the peace and stability of the international community under the policy of “Proactive Contribution to Peace,” based on the principle of international cooperation.
The cabinet decision then provided guidelines for three areas of the Legislation: “Response to an Infringement that Does Not Amount to an Armed Attack,” “Further Contributions to the Peace and Stability of the International Community,” and “Measures for Self-Defense Permitted under Article 9 of the Constitution.” The legislative guidelines differed somewhat from the Panel recommendations, though they played an important role in government deliberations (see Figure 2). The most notable distinction is that the cabinet decision did not refer to the Panel’s interpretation that “Article 9 of the Constitution renounces the threat or use of force as means of settling international disputes involving Japan as one party: It does not prohibit those actions justified by international law, such as self-defense, peacekeeping, and UN collective security measures” (issue A) at all. Rather, the GOJ seems to maintain a contradictory position because the cabinet decision stated that the use of weapons for a purpose other than Japan’s survival “could constitute the ‘use of force’ prohibited by Article 9 of the Constitution” when “directed against a state or a quasi-state organization” (2.(2)A.). Accordingly, the legislative guidelines did not take any steps toward either participation in a use-of-force option for collective security measures under Chapter VII of the UN Charter (issue C) or the abolition of the ittaika theory, which hedges against the risk of JSDF activities being incorporated into the use of force by others (issue D).
On the other hand, the cabinet decision took a clear step forward in relation to the right of collective defense (issue B). The GOJ had reached a conclusion that Japan can enter a defense operation triggered by an armed attack against a foreign country with which Japan has a close relationship, “should it pose, as a result, a threat to Japan’s survival and a clear danger that the people’s right to life, liberty and pursuit of happiness will be overturned fundamentally, and when there is no other appropriate means available to repel the threat and ensure Japan’s survival to protect them” (paragraph 3, 3.(3)). It is true the set of conditions defined by the GOJ seem stricter than the Panel’s criterion “potential to significantly affect Japan’s security.” However, there is no doubt that the GOJ and the Panel shared to a certain extent the understanding of the deficiencies of the existing legislation in connection with the constitutional interpretation.
The GOJ was also committed to maximizing options under the ittaika theory while it did not agree with, as described above, the specific recommendations of the Panel on issues C and D. The cabinet decision noted that “the recognition that Japan’s support activities such as replenishment of supplies and transportation conducted anywhere except ‘a scene of an armed combat in progress’ involving the foreign supportee should not be regarded as ‘ittaika’ with the use of force by them” (2.(1).C.). Thus, the GOJ responded to the Panel’s expectation practically by enabling the JSDF, after the Legislation, to contribute to international efforts including UN collective security measures without drawing a fictitious but rigid “noncombat area” on a map. In addition, in relation to issues E through G, the cabinet decision avoided detailed constitutional discussions by insisting there cannot be any opposing quasi-state actors within the areas where the consent to JSDF activities granted by a government in charge is effective, as well as granting the JSDF mandates to use weapons for rescue operations and removal of obstructive attempts against missions in international peace operations and noncombatant evacuations (2.(1).C.). The cabinet decision also planned to introduce a JSDF mandate to guard munitions of friendly troops supporting Japan’s defense in peacetime, while it recognized that the GOJ can resolve other deficiencies in potential responses to grey-zone infringements (issue H) in practice by speeding up procedures and enhancing exercises (1.).
Based on the items stated in the above guidelines and the differences from the Panel’s report, one can suppose that the GOJ as a whole meant to make major progress in three areas. First, the primary purpose was to enhance the credibility and effectiveness of the Japan-U.S. security arrangements to reinforce allied deterrence, by enabling more practical contributions in diverse situations from cases of collective defense to peacetime. Second, the GOJ aimed to further contribute to the peace and stability of the international community as long as it could avoid the extra political cost arising from discussions on collective security. Namely, the GOJ planned to make logistical support by the JSDF to foreign forces acting in accordance with a resolution by the UN Security Council more flexible, as well as to modify Japan’s peculiar regulations on the use of weapons in international peace operations to adjust to the de facto global standard. Third, the cabinet decision justifies JSDF participation in NEO as well as international peacekeeping operations.
The Legislation was approved in September 2015. Figure 3 shows the missions and mandates of the JSDF before the Legislation and Figures 4 through 5 the changes thereafter. The boxed situations in the figures are arranged based on their influence on Japan’s security (horizontal axis) and on the relative intensity of activities (vertical axis): Each box includes operations and tasks typically observed therein. This section examines major changes and their significance in situations in general, for the Japanese people and third parties.
Deterrence and the Japan-U.S. Alliance
The Legislation introduced the concept of “Other Crises of Japan’s Survival” (hereafter “Other Survival Crises”) in addition to the existing categories of an “Armed Attack against Japan” and “Anticipated Armed Attack against Japan” as a situation that may trigger Japan’s use of force. Under previous legislation, the GOJ had not been entitled to exercise the use of force without a direct attack against Japan even in cases where the survival of the United States was at risk. Because of this deficiency, potential adversaries could hypothetically develop a military strategy to attack the United States exclusively at first to a degree that would render its security treaty obligations to defend Japan unfeasible, then to start a military campaign against Japan at their own pace. The Legislation last year, however, made this idea impossible and, moreover, enabled Japan to cooperate with other partners in addition to the United States in defense operations. As a result, responses to attacks against the Japan-U.S. alliance are now expected to be more certain and severe. Furthermore, Japan took measures to minimize ambiguities between national defense and law enforcement that could complicate responses to grey-zone contingencies. The GOJ established expedited procedures for countermeasures against such grey-zone infringements as non-innocent passage and a landing on a remote island by an armed group, and the Legislation also encourages closer collaboration with U.S. forces by enabling the JSDF to guard friendly munitions in peacetime and enhancing the mandate to exchange equipment and support services between Japan and the United States in peacetime. (Under the bilateral Acquisition and Cross Services Agreement, or ACSA, depicted in Figure 5). As a result, the Legislation, without requiring a substantial increase in military assets, made the Japan-U.S. alliance function more effectively, thereby enhancing the credibility of deterrence, and thus contributes to the security of Japan and the United States as well as the Asia-Pacific region, a goal also reflected in the new Japan-U.S. Guidelines for Defense Cooperation approved in 2015.
Response to Risks of Other Armed Conflicts
In order to address situations involving armed conflict that do not necessarily threaten Japan’s survival, the Legislation developed two new terms: a “Situation of Significant Influence” (SSI) [the translation and abbreviation are unique to this paper], which stands for a situation with significant influence on Japan’s security, and a “Situation Addressed Internationally and Collectively” (SAIC) [the translation and abbreviation are unique to this paper], which stands for a situation threatening international peace and security and collectively addressed by the international community in accordance with the objectives of the UN charter. The SSI is a revised version of the former “Situations in the Area surrounding Japan (SIASJ)” formulation devised in the 1990s to enhance Japan’s contributions to security in Northeast Asia. Unlike SIASJ, the SSI is not bound by geography and based solely on whether a situation influences Japan’s peace and security. The SSI Security Act also authorized the JSDF to provide logistical support to security partners other than the U.S. military and expanded JSDF mandates therein to supply ammunition and service aircraft preparing for battle. The SSI Act also permitted the JSDF to execute the above-mentioned missions anywhere except areas of combat including foreign territory upon consent by the national government therein. SSI is much more practical than the SIASJ Act, and these improvements enable Japan to respond more effectively to those situations in collaboration with the United States and other partners, and hence decreases risks not only against Japan’s peace and security but also against countries sharing interests with Japan.
As to the SAIC, where the international community responds together to a threat to its peace and security in accordance with the purpose of the UN Charter, Japan established the International Peace Support Act. In the past Japan enacted temporary laws authorizing SDF activities such as logistical support for Operation Enduring Freedom and humanitarian reconstruction assistance in Iraq to support Operation Iraqi Freedom. The International Peace Support Act replaces such ad hoc temporary laws and allows the same flexibility for JSDF activities as the SSI Security Act. Therefore the real significance of SSI and SAIC is their permanent nature, and the GOJ can now deploy the JSDF more quickly and effectively. Now it is possible to educate and train the JSDF routinely for prospective operations, to build up its capabilities, and launch necessary investigations and address various contingencies without waiting for ad hoc legislation. In this sense, both acts symbolize Japan’s “Proactive Contribution to Peace” policy to further support international peace and stability in cooperation with the international community.
Support for International Peacekeeping/Building
The amended Peacekeeping Operations Act authorizes peacekeeping operations based on UN resolutions or on a request from a regional organization in addition to those organized by the United Nations. There are three major improvements concerning Japan’s prospective contributions to these operations. The first concerns security in the field of operation. The new PKO Act added two JSDF missions: to secure a specified area and the local population, and to rescue civilian peacekeeping personnel on urgent request. The legislation also authorized the use of weapons to execute these tasks. The second improvement concerns the commanding function of PKOs. The revised PKO Act allows JSDF personnel to play a wider role in command headquarters, whereas they had been engaged in only peripheral administration before. In addition, the GOJ can provide a commanding officer for a UNPKO mission. Thirdly, the act recognizes the reality that the reconstruction of governing functions and organizations is a key factor in restoring peace in post-conflict states. While the former version of the PKO Act had listed only administration in general other than police administration as areas where Japan could provide advice and guidance, the amendment specifies rehabilitation programs, the restructuring of defense machinery, the legislature, and the judiciary as priorities for post-conflict reconstruction. Japan had been prohibited from responding to these needs in the past but can now make more effective contributions in this area.
Application Based on National Interests under Democratic Control
The Legislation does not authorize the use of force in the case of anything other than self-defense. Certainly, defense operations would be exercised on occasion under “Other Survival Crises,” which are new and not exactly the same as an “Armed Attack against Japan.” However, those defense operations would be conducted exclusively as exercises of the right of self-defense. In addition, not all cases of armed attack against close foreign partners correspond to “Other Survival Crises.” If such an armed attack against partners does not threaten Japan’s survival, the case will be regarded as an SSI or SAIC, where Japan would consider logistical support and other non–use-of-force operations; in other words, Japan would not proceed to the use of force. More importantly, there is no mechanism requiring Japan to participate automatically in either “Other Survival Crises,” an SSI, or an SAIC; in other words, it is solely Japan that decides whether or not to respond based on its national interests. Therefore, arguments that Japan, thanks to the Legislation, would be involved in a war irrelevant to Japan’s vital interests—national survival—are simply false.
As to democratic control, it goes without saying that decisions about the national interest are not made solely by the government. All defense and international operations require prior or subsequent approval by the Diet depending on their urgency. Especially, operations in an SAIC that may involve an armed conflict but have a less direct impact on Japan’s security require both prior approval by the Diet and subsequent approval at two-year intervals. In other words, those operations will be controlled as tightly as the preceding temporary acts, which required extensions by the Diet. Thus, the Legislation hedges institutionally against the hypothetical risk of reckless decisionmaking by government or defense authorities, which is quite unrealistic in contemporary Japan.
Significance for Third Parties
As was examined above, Japan does not resort to force unless its survival is threatened directly or through an armed attack against close countries even under the new Legislation; Japan has only non–use-of-force options like logistic support in other situations. These operations will be conducted without being integrated in the use of force by other countries and will not be executed in a foreign territory without the local government’s consent. This is why it is unthinkable that Japan could trespass on foreign territory to be engaged in an armed operation unless being forced to enter defense operations. Consequently, the significance of the Legislation for third parties not involved in armed aggression against Japan or the United States is to recognize Japan’s efforts to promote international peace and security.
This paper reviewed the process and central tenets of the Legislation passed in 2015. The Legislation was not planned to prepare for an upcoming war. Japan firmly maintains its exclusively defense-oriented policy and will never resort to force unless its peace and security are threatened. There is no element of militarism in the Legislation as all the prescribed options from defense operations to international assistance are completely under democratic control. It therefore follows that the Legislation entering into force has only positive effects on Japan’s security, the Japan-U.S. alliance, the stability of the Asia-Pacific region, and the promotion of global peace. In sum, the Legislation is beneficial and of course harmless to the citizens of Japan and those in neighboring countries wishing the maintenance of the status quo in the international order.
Atsuhiko Fujishige was a CSIS Japan Chair visiting fellow from Japan’s Ministry of Defense from September 2015 to June 2016. The views expressed here are his own and do not represent the views of Japan’s Ministry of Defense nor the government of Japan.
Japan Chair Platform is published by the Office of the Japan Chair at the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).
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