Japan’s participation to MCM Operations must be under cease-fire in advance?

-A case of mine removal at the Strait of Hormuz-

Rear Admiral (Ret.) Masami Kawakami, Japan Maritime Self-Defense Force

During September 16 to 27, Navies from 30 countries including mine counter measure (hereafter MCM) forces of Japan Maritime Self-Defense Force (hereafter JMSDF) , which are JMSDF MST Uraga and MSO 303 Hachijo, participated in the International Mine Countermeasures Exercise 2012 (hereafter IMCMEX) hosted by the U.S. Fifth Fleet in the Persia Gulf. The mission of IMCMEX needs to be fully cooperative to maintain freedom of trade and navigation with MCM Capability and keeps the situation of Strait of Hormuz, which is the one of key points for international trade, in mind. Joining the IMCMEX continuously in these 2 years proves that the security of Persian Gulf as sea line is critically important for Japan.

However, some Japanese newspapers reported that Japan’s participation is legally limited in operations removing abandoned mines, such as what they have done in the Gulf War, if Iran declares a blockade of the Strait of Hormuz. Additionally, it is usually said that Japan would not be possible only to join operations to remove abandoned mines under cease-fire, when mines are installed under the Strait of Hormuz. But it is concerned that this interpretation may lead to misunderstanding that Japan cannot even remove abandoned mines without cease-fire.

Under the situation that Iran dose not exclude the possibility for blockade by mining at the Strait of Hormuz, this analysis focuses on the discussion whether a cease-fire would be required for Japan to participate in MCM Operations, referring to precedents of the answers in the Diet and the MCM Operations around Korean waters and Japan Sea in the time of Korean War.

1. Legal Analysis of the Past Cases

Japan has discussed legal interpretation on MCM Operations in Persian Gulf twice in the past and this remains unchanged. The first discussion was conducted in 1987, when the U.S. required cooperation from Japanese minesweepers. The Nakasone administration, which was its third period at that time, indicated that MCM Operations are not regarded as an armed struggle, if mines were abandoned into the high seas and those prevent our ships from sailing safely, and then we can dispatch our forces under the Article 99 of Self-Defense Forces Law (2 paragraph, Article 84 presently). However, that time was just during the Iran-Iraq War and the dispatch was not conducted, affected by strong objections such as Masaharu Gotouda, who was Chief Cabinet Secretary at that time. Its detail was recorded in the conversation between Kazuhito Wada and former Prime Minister Nakasone, which was conducted at the 109th Parliament Lower House Standing Committee on Cabinet in August 27 1987, and the both of memorandum on questions and government written answers about safe sailings in the Persian Gulf.

The second discussion whose detail was the same as the last one was conducted just after the Gulf War in 1991. According to the conference minutes of the 120th Parliament Lower House Standing Committee on Cabinet, the Cabinet Legislation Bureau expressed that the Article 99 of Self-Defense Forces Law does not make a clear difference in time of peace and emergency and its difference would be a key factor in situations to decide whether it becomes an abandoned mine. Therefore, they added that some cases would come under use of armed force in wartime and those gave a misunderstanding to news media. This dispatch was Japan’s first challenge and it had to be emphasized that the dispatch was conducted under peacetime. While it is concerned that that circumstance would be a stereotype and narrow width of choices, dispatches for removing abandoned mines does not need a condition of cease-fire.

2. While a dispatch to remove abandoned mines in peacetime is not problematic, how should we deal with it in wartime?

During the Korean War and following several years, mines made in Soviet were washed ashore around the coast of the Japan Sea and caused serious damage, even though Japan was conducting its MCM operation on its coast of the Japan Sea, territorial waters and high seas around them. By the way, in addition to the fact that the Constitution of Japan was promulgated in 1946 and the Korean War was during 1950-1953, Japan had already restored its sovereignty in 1952, which was the previous year of its cease-fire. As there were no clear concept on “abandoned mines” and necessity to interpret it, nobody thought seriously about the possibility that MCM operations have a brush with the Constitution at that time, and today that remains likely unchanged. The mission of JMSDF Mine Warfare Force was to remove mines which were cast ashore to the coast of the Japan Sea and waters around them to protect security for sailing ships, life and property for people who live along the coast and it was based on Japan’s independent judgment. This historical precedent suggests an answer from the question how the term abandoned mines should be dealt with.

Nakasone responded that it is legal for Japan Maritime Self Defense Force to conduct its MCM operation on the Japan Sea, off Maizuru and high seas in emergent cases and likely that there would not be legal difference even if they join operations in the Persian Gulf at the 109th Parliament Lower House Standing Committee on Cabinet in August 27 1987. And Masasuke Omori, who was Director-General of the First Department of the Cabinet Legislation Bureau at that time, continuously responded that removing mines on territorial waters of coast countries in the Persian Gulf is also legal, if an agreement from the coast countries given, at the 120th Parliament Lower House Standing Committee on Cabinet in April 25 1991.

The narrowest place of the Strait of Hormuz is 21 nautical miles and its center part is the place that Omani territorial waters are contacting with that of Iran. The sea lanes and traffic separation scheme was already established and this central place is included into Omani territorial waters from geographical conditions. Therefore, in cases that mines are used by Iran to block the Strait of Hormuz, it is easily estimated that the scope extends to the Omani territorial waters.

3. Is it enough only to participate in operations removing abandoned mines?

Japan’s participation in operations removing abandoned mines is legally based on the Article 99 of Self-Defense Forces Law (Article 84, paragraph 2 presently), as noted that the Article 99 covers mines which were abandoned on high seas regardless of whether mines are floating or fixed in the Government written answer No.4, at the 109th Parliament Lower House Standing Committee on Cabinet. However, in practice, it is critically difficult to regard fixed mines as abandoned ones in wartime and further additional measures are likely needed.

While the U.S. warns that the blockade of the Strait of Hormuz by Iran is an act of war, practically if mines are used for the blockade, for the reason that the scope extends to Omani territorial waters and Iran neglects to maintain a safe situation for sailing ships of third parties as its obligation to neutral countries, parties which are involved in the war are not only the both of Iran and Oman. If Iran conducts a blockade of the Strait of Hormuz as retaliation to the economic sanctions by Western countries, it is critically serious for Japan which is dependent on importing a large amount of oil from Middle East. The removal of mines at the traffic separation scheme established in Omani territorial waters of the Strait of Hormuz exceeds Oman’s capacity to deal with, and Oman needs to cooperate with Western countries such as IMCMEX 12. Japan has to also modify its constitutional interpretation to excise the right of collective self-defense, if it wants more responsible roles.

4. Has Japan fulfilled MCM operations in wartime?

After the Second World War, Japan has carried out MCM operations as follows, except for those which are described in the Paragraph 2.

1. Mine Cleaning in Korean waters: 1950.10.10-1950.12.6
2. Mine Sweeping Guinea Pigs in Korean waters: 1950.11.18-1952.6.30
3. Diary Check Sweep in Tokyo Bay and outside of Sasebo Port: 1950.7.16-1953.9.15

The mine cleaning in the Korean waters was conducted in the time when Japan was under foreign occupation and Takeo Okubo, who was the first Director General of Japan Coast Guard, wrote that this cleaning was fulfilled in secret in his book titled “Unari no hibi” (“The days of the rumbling of the sea”) published in 1978. Jiro Shirasu, who was a close adviser of Prime Minister Shigeru Yoshida, read that book and told Okubo that I had never heard such a thing and knew for the first time, but Yoshida accomplished the cleaning which violates the Constitution of Japan wonderfully. In this cleaning, Yoshida told all the parties that Japan participates in the MCM operation headed by the U.N. Forces around Korean waters to protect our peace and independence. Okubo also told all the parties with encouragement that as we have challenges to restore our independence and take an honorable statue in the world, we need to carry out our mission.

While the peace treaty was issued in April 28, 1952 and Japan restored its sovereignty, Mine Sweeping Guinea Pigs in Korean waters and Diary Check Sweep in Tokyo Bay and outside of Sasebo Port were continued. Especially, Diary Check Sweep was the operational support, which fleets of the U.N. Forces enter or exit the Yokosuka Port and Sasebo Port, and continued until the end of Korean War. Additionally, some Japanese people and private ships also engaged in transporting arms and explosives to the U.N. Forces. There were no arguments of identification with armed struggle at that time and it is said that Japan fulfilled its operational and logistic supports to the U.N. Forces.

After all, in practice, Japan has already experiences to have conducted its MCM operations. Consequently, Japan has to take enough responsible roles as a member of international society to secure a stable environment in cases that Iran starts a blockade in the Strait of Hormuz.

From “Intelligence Analysis (September 2012)”