On April 28, 2023, the Japanese government formulated a “control guideline” outlining procedures for the Minister of Defense (MOD) to take control of the Japan Coast Guard (JCG), as well as the activities the JCG may engage in under the control of the MOD in the event of an armed attack against Japan by a foreign power.
Article 80, Paragraph 1 of Japan’s Self-Defense Forces Law stipulates that when the Prime Minister has issued a defense operation order to the Self-Defense Forces (SDF), “all or part of the JCG may be placed under the control of the MOD if there is deemed to be a special necessity.” In this context “special necessity” refers to cases where it would be difficult to respond to the situation unless the SDF and JCG were placed under centralized command and operation.
The control guideline was written to clarify the framework for coordination and cooperation between the Ministry of Defense, SDF and JCG under a scenario where an armed attack situation has been acknowledged, and a defense operation order has been issued to defense forces. To some extent, the guideline summarizes where the JCG fits into the defense structure, what activities it is to carry out, as well as the division of roles between the SDF and JCG.
In terms of what specific activities the JCG might engage in under the control of the MOD, the guideline offers five examples: civil protection measures (evacuation and rescue of residents), search & rescue and lifesaving operations, providing information and evacuation support to vessels, counterterrorism measures at port facilities, and measures to respond to large-scale refugee situations.
Based on the information consolidated and analyzed by the Ministry of Defense and SDF, the MOD would issue commands to the commandant of the JCG, who would in turn direct and supervise JCG personnel in carrying out the activities. This arrangement is designed to enable the SDF to focus on its core mission of defending Japan, and would not involve the MOD taking direct command of JCG units.
The control guideline states that the JCG will remain a law enforcement agency even under the control of the MOD, and will continue to engage in law enforcement activities. The guideline further clarifies that even under MOD control, the JCG would not be incorporated into the SDF, and would not be regarded as a military force under the law of armed conflict. This means that an incorporation into armed forces described in Article 43, Paragraph 3 of the Protocol Additional to the Geneva Conventions would not take place. The provision stipulates that “whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.”
Although the JCG under MOD control would engage in its activities under an armed attack situation, the status and activities of the JCG would remain unchanged from peacetime. It would continue to function only as a law enforcement agency. Even under an armed attack situation, the JCG would still need to engage in law enforcement operations at sea, such as ensuring compliance with laws and preventing crime. Therefore, just as in peacetime, the JCG would continue to exercise its administrative and judicial policing authority based on the Japan Coast Guard Law and Code of Criminal Procedure. This is the only possible interpretation when considering Article 80 of the Self-Defense Forces Law together with Article 25 of the Japan Coast Guard Law.
However, under this scenario where an armed attack situation has been acknowledged, an defense operation order has been issued and the JCG has been placed under control of the MOD, it is necessary to consider whether the activities of the JCG would still be regarded as law enforcement activities in the eyes of international law, or whether they would cross into the realm of military operations, thus making them legitimate military targets.
Under the law of armed conflict, attack targets must not be indiscriminate. A distinction has to be made between military objectives and non-military (civilian) objects, and civilian objects must not be targeted for attack. Attacks that fail to distinguish between military objectives and civilian objects are considered to be indiscriminate attacks, and are banned under international law.
But the standards for determining whether or not an objective is of a military nature are not necessarily set in stone. The criteria for selecting material military objectives include category-based criteria determined based on the type of object (such as whether a vessel is a warship), and functional selection criteria determined based on the function of the object (whether the object “by its nature, location, purpose or use makes an effective contribution to military action,” and whether, under the circumstances ruling at the time of the attack, its destruction would “confer a definite military advantage”). Currently, the latter is the most persuasive interpretation.
It is possible that JCG patrol vessels, while initially not considered to be military targets, could become legitimate targets if they engage in hostilities as defined by international law. As a maritime law enforcement agency, the mission of the JCG includes activities that set it apart from its land-based counterparts, and that may be more easily perceived as hostile acts under international law, such as patrol activities. The patrolling of coastal waters that make up part of JCG operations could fall under this interpretation. For example, if the JCG engaged in patrol operations while under the control of the MOD, discovered a hostile warship as a result, and reported its position and status to the Ministry of Defense and SDF, those actions could be considered hostilities under international law, making the JCG vessels involved legitimate military targets.