Further Legal Changes Needed to Enable Transport of Nonnationals:
Ukraine’s Lessons for a Taiwan Contingency

Introduction

On February 8, the cabinet approved and sent to the Diet an amendment to Article 84-4 of the Self-Defense Forces Law providing for the transport of Japanese nationals and others in the event of an emergency abroad. The amendment was prompted by decision-making delays over the dispatch of the Self-Defense Forces in the wake of the fall of Kabul in August 2021. Prime Minister Fumio Kishida had called attention to the need for an amendment to expedite the evacuation of nationals out of dangerous situations, and he is reported to have personally instructed the Ministry of Defense to consider making legal changes.

The only persons evacuated following the Taliban’s takeover of Afghanistan were 14 Afghans, based on a request from the United States, and one Japanese national who asked to leave. Many others were left behind—such as the approximately 500 local staff at the Japanese embassy and JICA and their families—as the deadline for SDF operations approached, prompting criticism for deserting those who had been working for Japan.

The proposed amendment paves the way for the dispatch of the SDF to transport foreign nationals who, like the workers in Afghanistan, have cooperated with Japan, but it does not cover those with no direct ties—a need for which could emerge in the event of a contingency in Taiwan. Although the inclusion of a provision to cover the latter was initially considered, revisions were reportedly kept to a “minimum” so as to avoid having to extend the Diet session, considered difficult in the light of the House of Councillors election scheduled for this summer.

Why was the decision made to keep the revision to a minimum? An analysis and understanding of the background factors could help inform how they may be included the next time the SDF Law is amended. In the following, I will examine the changes that have actually been proposed, shed light on the reasons for the exclusion of non-Japan-associated personnel with reference to the basic structure of the SDF Law, and analyze the problem of noncombatant evacuation operations (NEOs) in the light of the Ukraine crisis[1].

Gist of the Amendment

The amendment consists of three main points. The first is to abolish the priority given to the use of Japanese government aircraft (seifu sen’yo-ki) for evacuation operations. At present, SDF ships and planes are used only when the seifu sen’yo-ki, usually reserved for overseas travel by the emperor, prime minister, and other high-ranking officials, are unavailable. This clause was blamed for the delay in dispatching SDF planes to Afghanistan, so its removal is expected to speed up the decision-making process.

The second change concerns the requirement that transport operations be conducted only when safety can be guaranteed. Strict adherence to this stipulation was an added factor in the delay seen after Kabul’s fall[2]. The wording has been amended to require that measures be taken to circumvent any anticipated dangers.

The third revision expands the scope of those eligible to be evacuated. Currently, only Japanese nationals may be transported, with exceptions requiring a request from the minister for foreign affairs and the accompaniment of Japanese nationals. The amended legislation would permit the dispatch of the SDF to transport non-Japanese spouses or children, honorary consuls and consuls general, and local employees of diplomatic missions and government-affiliated agencies—even when there are no Japanese nationals to be evacuated.

A Positive List of Permitted Activities

The inherent duties of the SDF are to ensure the peace, independence, and national security of Japan, according to Article 3 of the SDF Law, which identifies one primary duty and two secondary duties. These are listed individually and in concrete terms in Chapter 6, and the authority granted the SDF for each of those actions is specified in Chapter 7. Chapter 8 cites the activities that are not duties but for which the SDF shall provide cooperation, along with the procedures to follow[3]. All SDF actions, along with their legal basis, are therefore stipulated in the SDF Law or other laws, and activities that are not thus specified are not permitted. The conduct of the SDF, in other words, is defined in positive-list terms.

Falling within the parameters of the primary duty are the operations of the SDF for the defense of Japan. This is the only activity for which the SDF are granted broad authority.

Of the two secondary duties, one is maintaining public order as necessary, including the exercise of police authority to support public security and maritime patrol operations; activities in response to airspace incursions; defense against ballistic missiles and other weapons; and disaster relief. These are, broadly speaking, activities aimed at ensuring public peace and protecting the lives and assets of the Japanese people. The duties to defend Japan and maintain public order are directly related to Japan’s national security and are thus stipulated in the first paragraph of Article 3.

The other secondary duty, outlined in the next paragraph, covers supportive actions outside of Japan conducted in response to an “important influence situation,” as part of peacekeeping operations, and in cooperation with joint international operations. They are to be performed as provided by other laws to the extent that they do not interfere with the main duties of the SDF and do not constitute the threat or use of force. These activities were previously stipulated in Chapter 8 and not identified as duties. With the diversification of the SDF’s role, however, they were recognized as duties—subject to the Diet’s approval—and moved to Chapter 6 in the 2006 amendment to the SDF Law.

Ambiguities in Transporting Nonnationals

The provisions for evacuating Japanese nationals were originally contained in Article 100-8 of Chapter 8, which covers activities that are not part of the SDF’s inherent duties. Such actions were considered part of the SDF’s “cooperative assistance,” since they were performed upon the request of the minister for foreign affairs[4]. The provisions were moved to Article 84-4 of Chapter 6 following a review of the SDF’s duties, as mentioned above, but because the purpose of such activities is to protect the lives of the people of Japan, as defined in Article 3, foreigners could be transported only as an ancillary measure from a humanitarian point of view.

While “ancillary” has never been clearly defined, the evacuation of foreigners—even when unaccompanied by Japanese nationals—appears to have long been permitted as long as the decision to deploy the SDF was based on a reasonable assessment of the number of Japanese nationals requiring transport and their circumstances[5]. The fact that the SDF flew 14 Afghans out of the country at the request of the United States set an important precedent for the SDF to engage in evacuation operations even when Japanese nationals are not involved. The extent to which the SDF may conduct such operations in the event of a Taiwan contingency, however, remains an open question.

Remaining Issues

The amendment currently under review seeks merely to address an issue that surfaced during last year’s deployment of the SDF to Afghanistan and does not anticipate the SDF being dispatched to evacuate non-Japanese nationals from Taiwan. This is consistent with the Japanese penchant for creating laws only after problems have occurred, rather than in anticipation of future needs.

The current bill proposes to amend the first paragraph of Article 3 stipulating the duties of the SDF in maintaining public order and protecting the lives of Japanese nationals, expanding the definition of “Japanese nationals” to include foreigners who are working for and are deemed necessary human resources for Japan’s security.

Transporting nonnationals who have no direct ties with Japan, on the other hand, would be construed as an action undertaken in cooperation with and support of other countries and the international community. Thus, it would fall under paragraph 2 of Article 3 stipulating the SDF’s duties relating to international cooperation and, if revised, should technically be placed under Article 85-5 of Chapter 6, which is subject to Diet approval, and not Article 84-4. This would first require the enactment of a separate law defining such activities, as called for in Article 3, and then an amendment of Article 85-5. While such procedures would be ideal from a formalistic point of view, the drafting of a new bill and deliberations in the Diet would require an inordinate amount of time. Given the grave situation in Ukraine, though, laying the legal groundwork for the transport of nonnationals is an urgent priority should a similar crisis emerge in Taiwan.

A more practical—albeit ad hoc—way of working within the current legal framework is to utilize existing provisions for responding to important influence situations and cooperating with joint international operations (based on a UN General Assembly resolution and the like). In both cases, the activities of the SDF are positioned as forms of cooperation and support for US and other foreign forces, and there are no explicit provisions calling for the SDF to transport nonnationals for humanitarian purposes, as was the case in the Law Concerning Special Measures on Humanitarian and Reconstruction Assistance in Iraq. Of course, if other militaries are engaged in the evacuation of noncombatants, a similar role by the SDF could be construed as a provision of services to foreign forces and thereby fall within the scope of the law.

Lessons of Ukraine for Taiwan

Countries have moved quickly to evacuate their citizens from Ukraine based on the lessons learned in Afghanistan. On February 12, US President Biden called on all remaining American citizens to leave immediately due to the imminent threat of military action by Russia. Other countries, including Britain, the Netherlands, and South Korea, also instructed their citizens to leave Ukraine[6].

The Japanese Ministry of Foreign Affairs, too, raised the risk warning for Ukraine on February 11 to Level 4—the highest on its four-point scale—and urged the 150 Japanese residents estimated to be in the country to evacuate quickly.

In a February 11 interview with NBC News, President Biden pointed out, “It’s not like we’re dealing with a terrorist organization. We’re dealing with one of the largest armies in the world. It’s a very different situation, and things could go crazy quickly.” Asked about what scenario could prompt him to send troops to rescue Americans fleeing the country, Biden replied, “There’s not. That’s a world war when Americans and Russia start shooting at one another,” adding, “We’re in a very different world than we’ve ever been.” In a teleconference on the same day, a senior State Department official made it clear that “American citizens should not expect the US military is going to come rescue them in Ukraine at the last minute.” This was also emphasized in the State Department’s international travel advisory regarding what the department can and cannot do.

As Biden pointed out, deploying troops for noncombatant evacuation operations is no longer practical once armed conflict breaks out. This does not mean, of course, that the protection of civilians will be disregarded; it simply points to the reality that in a state of armed conflict, the military needs to focus on combat operations and cannot devote its resources to NEOs. Efforts will naturally be made to protect any civilians left behind, but when there are clear signs of an impending invasion, the best option is to leave quickly via regularly scheduled commercial transportation while the communications and transportation infrastructure are intact.

Only when commercial options are inadequate will the military be called upon to execute NEOs. A contingency in Taiwan is unlikely to develop in as discernable a manner as the Ukraine crisis; there could be a range of gray-zone incidents before the situation escalates into large-scale military mobilization. If China were to launch a surprise attack, though, there will be little time to evacuate noncombatants before the launch of military operations. This will necessitate small-scale but highly efficient NEOs, which are likely to be beyond the capacity of the parties directly involved in a conflict.

The withdrawal from Afghanistan was coordinated by the US military, which controlled access to and air traffic at Kabul airport. Many countries sent planes to transport evacuees, but such operations did not go smoothly, with some nearby governments refusing to temporarily accommodate or shelter evacuees[7]. In a Taiwan contingency, the use of ports and airports would no doubt remain under Taiwanese control, but assistance may be needed to coordinate the large number of ships and aircraft using those facilities. UN agencies and other organizations would also need to play a role in securing temporary shelters and evacuation centers with various governments.

The countries with the biggest capacity for transporting the large number of evacuees expected in a cross-strait emergency are the United States and Japan. In an earlier article, I noted that Japan would certainly be expected to help evacuate the citizens of other countries in the event of a contingency, and a failure to do so owing to legalistic obstacles would seriously undermine Japan’s standing in the international community.

It is only natural for Japan and the United States to take on the leading roles in responding to a Taiwan crisis. How such roles, including the evacuation of foreign nationals, can and should be performed by Japanese and US forces need to be determined as promptly as possible, while there is still time to consider a broad range of options.

(2022/03/28)