The military situation surrounding Taiwan has undergone a sea change following the visit by US House Speaker Nancy Pelosi August 2-3. A host of People’s Liberation Army (PLA) aircraft have since been crossing the “median line” in the Taiwan Strait almost daily to intimidate the Taiwanese. The line is an unofficial buffer zone that divides the Chinese side from the Taiwanese side. Chinese drones also have started flying over the detached Taiwanese islands of Kinmen and Matsu. On September 1, Taiwan shot one of them down for the first time. The situation around Taiwan is clearly headed toward escalating tensions.

　　　　　Meanwhile, Chinese and Russian forces conducted live-fire drills in the Sea of Japan off the coast of Hokkaido as part of the September 1-7 “Vostok 2022”—a joint military exercise Russia has held with its allies in the Russian Far East once every four years since 2009. In the latest drills one could clearly see Russia’s strategy to carry out military activities in the Russian-occupied islands north of Hokkaido and around Hokkaido itself if China were to attack Taiwan, forcing Japan to disperse its forces. That would make it impossible for Japan to concentrate on defending the Nansei Islands and Taiwan. (The Nansei Islands are a 625-mile chain of more than 100 islands extending from Kyushu to Taiwan.)

　　　　　In light of the Chinese threat to Taiwan, Japan must speedily rectify the flaws in the Japan Self-Defense Forces (JSDF) Law and establish solid rules of engagement (ROE), which would enable the JSDF to take appropriate military action going forward. Kunio Orita, a former lieutenant general of the Japan Air Self-Defense Forces (JASDF), warns about the danger of military tensions between Japan and China escalating in the skies over the Pacific.

　　　　　Orita notes that air forces around the world, not just Japanese or Chinese, fly their aircraft equipped with missiles and canons. When a fully-quipped　fighter jet encounters another midair within missile range, a serious situation, such as a mid-air collision or a missile launch, would be unavoidable unless they act by universal rules governing such engagements. Unlike tanks or warships, an encounter involving supersonic fighters may turn into a conflict instantly, explains Orita, describing the skies as filled with “touch-and-go” situations.

　　　　　Orita is distressed that Japan has failed to put in place legislation, i.e., its own ROE, to prevent such encounters escalating further.

　　　　　Japan’s maritime and ground forces face the same dilemma traceable to our “peace constitution,” on which our laws are based. The constitution declares that Japan will never sustain “ground, maritime, and air forces, as well as other war potential,” placing the JSDF within the bounds of the Police Law. Our constitution was drafted by the American occupation forces in the late 1940s on the principle that a new Japan should minimize the use of force even though it is committed to protecting its people, land, seas, and airspace and refrain from taking military action even at the last minute. One would consider it quite natural that Japan has failed to develop legislation designed to address emergency situations such as those it is faced with today.

Biggest Difference between Army and Police

　　　　　As a result, we are compelled today to deal with a situation linked to a possible Chinese attack on Taiwan in which local governments on the Okinawa islands—including Yonaguni, Miyako, Shimoji, and Ishigaki—can issue evacuation orders only after the central government declares these islands to be “in danger of imminent attack.” That would be too late and expose residents to a real threat to life.

　　　　　This problem naturally leads to the question as to why the government cannot make an “imminent attack” declaration at an earlier stage. Kiyofumi Iwata, a former Japan Ground Self-Defense Forces (JGSDF) chief of staff, explains that an entirely different aspect comes into view when scrutinizing this situation at the national level.

　　　　　“If the Japanese government declared Okinawa and Taiwan were in danger of ‘imminent attack,’ China would take it as a hostile declaration and aggravate the situation. In that case, the 100,000+ Japanese now residing in China could be taken hostage, with Beijing most likely also freezing the assets of China-based Japanese corporations. The Japanese government would then be caught in a dilemma of not being able to declare an ‘imminent attack’ because it needs to protect Japanese citizens and corporations.”

　　　　　That being the case, it behooves our political leaders to announce versatile evacuation instructions without having to issue a declaration that could be misconstrued as an expression of hostility. An ordinary military legal system would also do. But our laws do not allow the JSDF to make flexible judgments.

　　　　　I suppose this is the negative effect of the spirit of our constitution, which is fundamentally designed to eliminate anything military. The JSDF is placed under the jurisdiction of not the military but the police by our constitution. The biggest difference between the army and the police around the world is in the posture taken toward security practices, often referred to as the “negative list” approach and the “positive list” approach. The militaries of the nations of the world, except for Japan, operate on the basis of the negative list, which typically specifies that non-combatants should not be killed, hospitals and schools should not be attacked, and prisoners of war should not be abused, among other things. While honoring the negative list, soldiers can accomplish their mission by taking the best way possible according to the judgment of their commanders, depending on the situation.

　　　　　Meanwhile, the police around the world operate according to the rules specified in the police duties execution act, i.e., a positive list. Conversely, police officers are prohibited from doing anything other than what the list specifies they are permitted to do.

　　　　　Local Japanese governments cannot resort to on-site judgment to instruct citizens to evacuate in the face of an approaching emergency because they must honor the positive list, i.e., the rules provided by the police act. Local authorities can be allowed to instruct residents to evacuate based on legislated rules only after the central government recognizes an “under-attack” situation. Ideally, the JSDF should base its actions on the negative list, like all other militaries in the rest of the international community, but have so far been unable to. Our constitution is to blame for this, I must repeat. Asserts Orita:

　　　　　“The military of any country is entitled to the right to self-defense at a moment’s notice. The important point is that the ROE exist to restrict the military from rushing into action at will and that politicians have the responsibility to make sure the ROE are strictly adhered to. But in Japan, legal discussions required prior to issuing an evacuation order are complicated and once the order is given the government binds the activities of the JSDF with the positive list based on the police laws.”

“No Choice but to Desperately Escape”

　　　　　In case of an emergency where everything is fluid, it is difficult to precisely grasp from hour to hour the best on-site action to be taken by the JSDF and respond to the unfolding situation as the laws prepared in Nagatacho demand. If an impending crisis must be addressed under the terms of the present laws, a central government announcement aimed specifically at enabling an evacuation of residents could contribute to escalating the crisis, as noted earlier.

　　　　　The ROE are the rules prepared to avoid such a preposterous situation. By setting these rules, any crisis JSDF personnel might face could be more properly managed, subsequently saving lives. Orita refers to an incident that developed over the East China sea in 2016:

　　　　　“Joint Japan-India-US maritime exercises were underway at the time and a PLA aircraft flew south as if to respond to the drills. Naturally, the JASDF scrambled a fighter to warn the Chinese plane away. But the Chinese plane responded by talking the provocative act of locking a missile on our fighter, exposing it to the immediate danger of getting shot down.

　　　　　“Based on its ROE, a fighter from any air force ordinarily would have countered by locking one of its own missiles on the hostile plane, but Japan didn’t—and still doesn’t—have such rules. As a result, our pilot had no choice but to desperately escape the spot.

　　　　　“The veteran JASDF pilot first released flares from his plane in an attempt to decoy the Chinese missile, then risked his life by diving tens of thousands of feet at once to barely make good his escape. Looking back on the incident now, our aircraft could have been shot down, precipitating a serious dispute between Japan and China.”

　　　　　Now that tensions are rising high across and over the wide expanse of the Pacific, we must respond to any crisis by prudently taking into consideration on-site situations. To do so, however, the government must first and foremost hurry to create ROE in the same way every other military has. Needless to say, our constitution must be revised. It has constituted the “root of all evils” for Japan’s security for too long.

(Translated from “Renaissance Japan” column no. 1,015 in the September 15, 2022 issue of The Weekly Shincho)