Œ¤–—ŒÃ ‹—›À”¤“ÃflÃ×—“ –flŸ¤ ⁄±Æ3 fl°°Æ±TMao —”fi “±Ú

ðÈðÏÛðÔËË

– ́æ¥·1⁄2 Æa°±Æ ̈·21 æ ́ÆoaÆ o±Æ  ̈ ̧·­ 1⁄2±¥¥a1⁄2 ̈·±2 ±o ·2o±Æ3ø ̈·±2 ·­ a­ ̈·æø ̈ao  ̈± øTMaÆø1a Ô  ̧± ́Æ °aÆ Æa­°±2­aÙ ·21⁄2¥ ́o·21  ̈ ̧a  ̈·3a o±Æ ÆaTM·a©·21 ·2­ ̈Æ ́1⁄2 ̈·±2­Ù ­aøÆ1⁄2 ̧·21 a®·­ ̈·21 oø ̈ø ­± ́Æ1⁄2a­Ù 1ø ̈ ̧aÆ·21 ø2o 3ø·2 ̈ø·2·21  ̈ ̧a oø ̈ø 2aaoaoÙ ø2o 1⁄2±3°¥a ̈·21

ø2o ÆaTM·a©·21  ̈ ̧·­ 1⁄2±¥¥a1⁄2 ̈·±2 ±o ·2o±Æ3ø ̈·±2Ú Õa2o 1⁄2±33a2 ̈­ Æa1øÆo·21  ̈ ̧·­ æ ́Æoa2 a­ ̈·3ø ̈a ±Æ ø2ß ± ̈ ̧aÆ ø­°a1⁄2 ̈ ±o  ̈ ̧·­ 1⁄2±¥¥a1⁄2 ̈·±2 ±o ·2o±Æ3ø ̈·±2Ù ·21⁄2¥ ́o·21 ­ ́11a­ ̈·±2­ o±Æ Æao ́1⁄2·21  ̈ ̧·­ æ ́ÆoaÆ  ̈± ‹a°øÆ ̈3a2 ̈ ±o ‹aoa2­aÙ ...ø­ ̧·21 ̈±2

ÿaøoØ ́øÆ ̈aÆ­ ÕaÆTM·1⁄2a­Ù ‹·Æa1⁄2 ̈±Æø ̈a o±Æ ×2o±Æ3ø ̈·±2 —°aÆø ̈·±2­ ø2o Œa°±Æ ̈­  ̄ðÈðÏÛðÔËË ̃Ù ÔÓÔÎ ÷aooaÆ­±2 ‹øTM·­ ÿ·1 ̧©øßÙ Õ ́· ̈a ÔÓðÏÙ flÆ¥·21 ̈±2Ù fl ÓÓÓðÓÛÏÌðÓÚ Œa­°±2oa2 ̈­ ­ ̧± ́¥o æa ø©øÆa  ̈ ̧ø ̈ 2± ̈©· ̈ ̧­ ̈ø2o·21 ø2ß ± ̈ ̧aÆ °Æ±TM·­·±2 ±o

¥ø©Ù 2± °aÆ­±2 ­ ̧ø¥¥ æa ­ ́æ¶a1⁄2 ̈  ̈± ø2ß °a2ø¥ ̈ß o±Æ oø·¥·21  ̈± 1⁄2±3°¥ß ©· ̈ ̧ ø 1⁄2±¥¥a1⁄2 ̈·±2 ±o ·2o±Æ3ø ̈·±2 ·o · ̈ o±a­ 2± ̈ o·­°¥øß ø 1⁄2 ́ÆÆa2 ̈¥ß TMø¥·o —”fi 1⁄2±2 ̈Æ±¥ 2 ́3æaÆÚ –‘¤flÕ¤ ‹— “—Ã Œ¤ÃÀŒ“ «—ÀŒ ⁄—Œ” Ã— Ãÿ¤ flfi— ¤ fl‹‹Œ¤ÕÕÚ

ÔÚ Œ¤–—ŒÃ ‹flÃ¤  ̄‹‹Û””Û«««« ̃

ÓÍÛðÌÛÓððÓ

ÓÚ Œ¤–—ŒÃ Ã«–¤

ÿø2oæ±±μ

ÌÚ ‹flÃ¤Õ ›— ¤Œ¤‹  ̄⁄Œ—” Û Ã— ̃

®®Û®®ÛÓððÓ  ̈± ®®Û®®ÛÓððÓ

ÏÚ Ã×Ã‘¤ fl“‹ ÕÀfiÃ×Ã‘¤

—°aÆø ̈·±2ø¥ ‘ø© ÿø2oæ±±μÙ ÷fl ÏÓÓ

À21⁄2¥ø­­·o·ao

ÎøÚ ›—“ÃŒfl›Ã “À”fi¤Œ

ÎæÚ ŸŒfl“Ã “À”fi¤Œ

Î1⁄2Ú –Œ—ŸŒfl” ¤‘¤”¤“Ã “À”fi¤Œ

ÍÚ flÀÃÿ—Œ ̄Õ ̃ ÎoÚ –Œ—÷¤›Ã “À”fi¤Œ

ÎaÚ ÃflÕ’ “À”fi¤Œ

ÎoÚ ...—Œ’ À“×Ã “À”fi¤Œ

ÈÚ –¤Œ⁄—Œ”×“Ÿ —ŒŸfl“×ÆflÃ×—“ “fl”¤ fl“‹ fl‹‹Œ¤ÕÕ

Ã÷flŸÕfl

Íðð ”ø­­·a Œ±øo

› ̧øÆ¥± ̈ ̈a­TM·¥¥aÙ flÓÓÁðÌ

ËÚ –¤Œ⁄—Œ”×“Ÿ —ŒŸfl“×ÆflÃ×—“ Œ¤–—ŒÃ

“À”fi¤Œ

ÁÚ Õ–—“Õ—Œ×“ŸÒ”—“×Ã—Œ×“Ÿ flŸ¤“›« “fl”¤ fl“‹ fl‹‹Œ¤ÕÕ

Ù

ÔðÚ Õ–—“Õ—ŒÒ”—“×Ã—Œ ̆Õ fl›Œ—“«” ̄Õ ̃

ÔÔÚ Õ–—“Õ—ŒÒ”—“×Ã—Œ ̆Õ Œ¤–—ŒÃ

“À”fi¤Œ ̄Õ ̃

ÔÓÚ ‹×ÕÃŒ×fiÀÃ×—“Òfl fl×‘flfi×‘×Ã« ÕÃflÃ¤”¤“Ã

fl–Àfi‘×› Œ¤‘¤flÕ¤

Ù

ÔÌÚ ÕÀ––‘¤”¤“ÃflŒ« “—Ã¤Õ

Õ ́°aÆ1⁄2aoa­ fl‹flÌÈÈÎÓÓÙ —°aÆø ̈·±2ø¥ ‘ø© ÿø2oæ±±μÙ ÷fl ÏÓÓÛÓððð

ÔÏÚ flfiÕÃŒfl›Ã

Ã ̧a —°aÆø ̈·±2 ‘ø© ÿø2oæ±±μ ·­ ø  ̨ ̧±©  ̈± ̨ 1 ́·oa ±o ¶ ́o1a øoTM±1⁄2ø ̈a­ °Æø1⁄2 ̈·1⁄2·21 ±°aÆø ̈·±2ø¥ ¥ø©Ú × ̈ °Æ±TM·oa­ ÆaoaÆa21⁄2a­ ø2o oa­1⁄2Æ·æa­  ̈ø1⁄2 ̈·1⁄2­

ø2o  ̈a1⁄2 ̧2·Ø ́a­ o±Æ  ̈ ̧a °Æø1⁄2 ̈·1⁄2a ±o ±°aÆø ̈·±2ø¥ ¥ø©Ú × ̈ ­ ́°°±Æ ̈­  ̈ ̧a o±1⁄2 ̈Æ·2ø¥ 1⁄2±21⁄2a° ̈­ ø2o °Æ·21⁄2·°¥a­ ±o ⁄” ÔððÛÎ ø2o ⁄” ÓÈÛÔððÚ Ã ̧a

—°aÆø ̈·±2ø¥ ‘ø© ÿø2oæ±±μ ·­ 2± ̈ ø ­ ́æ­ ̈· ̈ ́ ̈a o±Æ ±oo·1⁄2·ø¥ ÆaoaÆa21⁄2a­Ú ‘·μa ±°aÆø ̈·±2ø¥ ¥ø© · ̈­a¥oÙ  ̈ ̧a ÿø2oæ±±μ ·­ ø o±1⁄2 ́­ao 1⁄2±¥¥a1⁄2 ̈·±2 ±o

o·TMaÆ­a ¥a1ø¥ ø2o °Æø1⁄2 ̈·1⁄2ø¥ ·2o±Æ3ø ̈·±2Ú

ÔÎÚ ÕÀfi÷¤›Ã Ã¤Œ”Õ

—°aÆø ̈·±2ø¥ ‘ø©

ÔÍÚ Õ¤›ÀŒ×Ã« ›‘flÕÕ×⁄×›flÃ×—“ —⁄Ê ÔÈÚ ‘×”×ÃflÃ×—“

—⁄ flfiÕÃŒfl›Ã

– ́æ¥·1⁄2 Œa¥aø­a

ÔËÚ

“À”fi¤Œ

—⁄ –flŸ¤Õ

ÎÁË

ÔÁÚ “fl”¤ —⁄ Œ¤Õ–—“Õ×fi‘¤ –¤ŒÕ—“

⁄a2­ ̈aÆÙ ‘ß22

¥oa2­ ̈aÆ‡o ̈·1⁄2Ú3·¥

øÚ Œ¤–—ŒÃ

À21⁄2¥ø­­·o·ao

æÚ flfiÕÃŒfl›Ã

À21⁄2¥ø­­·o·ao

1⁄2Ú Ãÿ×Õ –flŸ¤

À21⁄2¥ø­­·o·ao

ÔÁæÚ Ã¤‘¤–ÿ—“¤ “À”fi¤Œ

×2 ̈aÆ2ø ̈·±2ø¥ flÆaø ›±oa

flÆaø ›±oa Ãa¥a° ̧±2a “ ́3æaÆ

ÈðÌÈÍÈÛÁððÈ

‹Õ“

ÏÓÈÛÁððÈ

Õ ̈ø2oøÆo ⁄±Æ3 ÓÁË  ̄ŒaTMÚ ËÛÁË ̃

–Æa­1⁄2Æ·æao æß fl“Õ× Õ ̈o ÆÌÁÚÔË

OPERATIONAL LAW HANDBOOK

(2002)

Captain Jeanne M. Meyer

CDR Brian J. Bill

Editors

Contributing Authors

MAJ Michael J. Berrigan

CDR Brian J. Bill, USN

MAJ Michael P. Boehman

MAJ David C. Caldwell

MAJ Holly O. Cook

LTC Daniel A. Culver

COL Joseph M. Davis

Maj William H. Ferrell, USMC

LTC Karl M. Goetzke

CPT Larry Gwaltney

CDR Mark R. Higgins, USCG

LtCol Michael C. Jordan, USMC

MAJ Cheryl K. Kellogg

MAJ Jonathan A. Kent

Lt Col Albert W. Klein, USAF

MAJ Mike Lacey

Capt Jeanne M. Meyer, USAF

MAJ Matthew A. Myers, Sr.

MAJ Charles H. Rose, III

MAJ Michael L. Smidt

MAJ Kevin M. Walker

Ms. Janice D. Prince, Secretary

LTC Tia Johnson, ADI Chair

All of the faculty who have served before us

and contributed to the literature in the field of operational law.

International and Operational Law Department

The Judge Advocate General's School

Charlottesville, Virginia 22903

i
ii
PREFACE

The Operational Law Handbook is a how to guide for Judge Advocates practicing operational law.

It provides references and describes tactics and techniques for the practice of operational law. It

supports the doctrinal concepts and principles of FM 100-5 and FM 27-100. The Operational Law

Handbook is not a substitute for official references. Like operational law itself, the Handbook is a

focused collection of diverse legal and practical information. The handbook is not intended to

provide the school solution to a particular problem, but to help judge advocates recognize, analyze,

and resolve the problems they will encounter in the operational context.

The Handbook was designed and written for the Judge Advocates practicing operational law. The

size and contents of the Handbook are controlled by this focus. Frequently, the authors were forced

to strike a balance between the temptation to include more information and the need to retain the

Handbook in its current size and configuration. Simply put, the Handbook, cargo pocket sized is

made for the soldiers, marines, airmen, and sailors of the service judge advocate generals corps, who

serve alongside their clients in the operational context. Accordingly, the Operational Law Handbook

is compatible with current joint and combined doctrine. Unless otherwise stated, masculine pronouns

apply to both men and women.

The proponent for this publication is the International and Operational Law Department, The Judge

Advocate Generals School (TJAGSA). Send comments, suggestions, and work product from the

field to TJAGSA, International and Operational Law Department, Attention: Capt Jeanne Meyer,

Charlottesville, Virginia 22903-1781. To gain more detailed information or to discuss an issue with

the author of a particular chapter or appendix call Capt Meyer at DSN 934-7115, ext. 374;

Commercial (804) 972-6374; or email jeanne.meyer@hqda.army.mil.

The 2002 Operational Law Handbook is on the Internet at www.jagcnet.army.mil. After accessing

this site, Enter JAGCNet, then go to the Operational Law sub-directory. The 2002 edition is also

linked to the CLAMO General database under the keyword Operational Law Handbook  2002

edition. The digital copies are particularly valuable research tools because they contain many

hypertext links to the various treaties, statutes, DoD Directives/Instructions/Manuals, CJCS

Instructions, Joint Publications, Army Regulations, and Field Manuals that are referenced in the text.

If you find a blue link, click on it and Lotus Notes will retrieve the cited document from the Internet

for you. The hypertext linking is an ongoing project and will only get better with time. A word of

caution: some Internet links require that your computer contain Adobe Acrobat software.

iii
iv
TABLE OF CONTENTS

LEGAL ISSUES WITHIN OPERATIONS

Legal Basis for the Use of Force..................................................................................Chapter 1

Law of War ..................................................................................................................Chapter 2

Human Rights ..............................................................................................................Chapter 3

Law of War in Military Operations Other Than War ..................................................Chapter 4

Rules of Engagement ...................................................................................................Chapter 5

Administrative Law .....................................................................................................Chapter 6

Air, Sea, and Space Law..............................................................................................Chapter 7

Civilian Personnel Supporting Operations...................................................................Chapter 8

Claims, Foreign and Deployment ................................................................................Chapter 9

Criminal Law .............................................................................................................Chapter 10

Environmental Law in Operations.............................................................................Chapter 11

Fiscal Issues in Operations

Fiscal Law............................................................................................................Chapter 12

Deployment Contracting and Battlefield Acquisition..........................................Chapter 13

Security Assistance and Foreign Assistance........................................................Chapter 14

Intelligence Law.........................................................................................................Chapter 15

International Agreements & SOFAs..........................................................................Chapter 16

Legal Assistance ........................................................................................................Chapter 17

SPECIFIC TYPES OF OPERATIONS

Combating Terrorism.................................................................................................Chapter 18

Domestic Operations..................................................................................................Chapter 19

Information Operations..............................................................................................Chapter 20

Non-combatant Evacuation Operations.....................................................................Chapter 21

Special Operations.....................................................................................................Chapter 22

United Nations & Peace Operations..........................................................................Chapter 23

LEGAL FRAMEWORK

National Security Structure and Strategy...................................................................Chapter 24

Joint Operations.........................................................................................................Chapter 25

Department of Defense

Joint Command & Staff

Air Force

Army

Marines

Navy

Coast Guard

NATO

Reserves Component Soldiers and Operations..........................................................Chapter 26

Military Decision Making Process & OPLANS........................................................Chapter 27

v
RESOURCES

Center for Law and Military Operations (CLAMO)..................................................Chapter 28

World Wide Web sites and other Electronic Resources............................................Chapter 29

Media Relations: Dealing with the Press...................................................................Chapter 30

Checklists...................................................................................................................Chapter 31

Charter of the United Nations...................................................................................Chapter 32

GLOSSARY

INDEX

vi
EXPANDED TABLE OF CONTENTS

LEGAL ISSUES WITHIN OPERATIONS

Legal Basis for the Use of Force................................................................................................1

Law of War ................................................................................................................................7

Appendix A. Law of War Class Outline...........................................................................30

Appendix B. Troop Information .......................................................................................36

Human Rights ..........................................................................................................................39

Appendix. Universal Declaration of Human Rights.........................................................45

Law of War and Military Operations Other Than War............................................................51

Appendix A. Treatment of Persons...................................................................................57

Appendix B. Treatment of Property..................................................................................61

Appendix C. Displaced Persons........................................................................................63

Rules of Engagement ...............................................................................................................67

Appendix A. SROE Extracts.............................................................................................75

Appendix B. Sample ROE Cards......................................................................................91

Administrative Law in Operations.........................................................................................101

Appendix. Investigation Guide for Informal Investigations...........................................118

Air, Sea, and Space Law........................................................................................................127

Civilian Personnel Supporting Operations.............................................................................137

Claims, Foreign and Deployment ..........................................................................................145

Appendix A. Assignment of Single-Service Responsibility for Tort Claims.................154

Appendix B. Unit Claims Officer Deployment Guide....................................................156

Appendix C. Deployment Claims Office Operations Outline ........................................163

Appendix D. Sample Deployment Claims SOP .............................................................166

Criminal Law in Operations...................................................................................................183

Appendix A. Sample Transfer of Jurisdiction ................................................................193

Appendix B. Sample Order Transferring Court-Martial Convening Authority .............195

Appendix C. Sample General Orders..............................................................................196

Environmental Law in Operations.........................................................................................203

Fiscal Law..............................................................................................................................221

Deployment Contracting and Battlefield Acquisition............................................................239

Appendix A. SF 44 .........................................................................................................254

Appendix B. Property Control Record Book..................................................................257

Security Assistance and Foreign Assistance..........................................................................261

Intelligence Law.....................................................................................................................281

International Agreements & SOFAs......................................................................................285

Legal Assistance in Operations..............................................................................................295

SPECIFIC TYPES OF OPERATIONS

Combating Terrorism.............................................................................................................311

Domestic Operations..............................................................................................................323

Information Operations..........................................................................................................353

Non-combatant Evacuation Operations.................................................................................363

vii
Special Operations ................................................................................................................ 369

United Nations & Peace Operations ..................................................................................... 391

Appendix A. Convention on the Privileges and Immunities of the United Nations...... 408

Appendix B. Convention on the Safety of United Nations and Associated Personnel.. 413

LEGAL FRAMEWORK

National Security Structure and Strategy.............................................................................. 421

Joint Operations .................................................................................................................... 427

Department of Defense ................................................................................................... 427

Joint Command & Staff .................................................................................................. 430

Army ............................................................................................................................... 433

Air Force ......................................................................................................................... 438

Marines............................................................................................................................ 448

Navy ................................................................................................................................ 456

Coast Guard..................................................................................................................... 458

NATO.............................................................................................................................. 464

Reserves Component Soldiers and Operations..................................................................... 471

Military Decision Making Process & OPLANS ................................................................... 475

Appendix. Formats for Legal Appendices..................................................................... 484

RESOURCES

CLAMO: Deployments, CTC Participation, and Resource .................................................. 491

World Wide Web sites and other Electronic Resources ....................................................... 505

Media Relations: Dealing with the Press.............................................................................. 513

Appendix. Guidelines for Discussions with the Media (Joint Pub 3-61)....................... 520

Checklists.............................................................................................................................. 523

International Law ............................................................................................................ 523

International Agreements................................................................................................ 545

Contract and Fiscal.......................................................................................................... 548

Military Justice................................................................................................................ 550

Charter of the United Nations.............................................................................................. 553

GLOSSARY ................................................................................................................................... 575

INDEX........................................................................................................................................... 582

viii
CHAPTER 1

LEGAL BASES FOR USE OF FORCE

INTRODUCTION

There are a variety of internationally recognized legal bases for use of force in relations between States, found in both

customary and conventional law. Generally speaking, the United Nations Charter provides the primary authority for use

of force under the auspices of either Security Council sanctions (Chapter VII enforcement) or self defense pursuant to

Article 51 (which sanctions acts of both individual and collective self defense).

Policy and Legal Considerations

Before committing U.S. military force abroad, decision-makers must make a number of fundamental policy

determinations. The National Command Authority (NCA) must be sensitive to the legal, political, diplomatic, and

economic factors inherent in a decision to satisfy national objectives through the use of force. The legal underpinnings,

both international and domestic, are the primary concern in this determination. Thus, any decision to employ force must

rest upon both the existence of a viable legal basis in international law, as well as in domestic legal authority (including

application of the 1973 War Powers Resolution (WPR)).

Though these issues will normally be resolved at the NCA level, it is nevertheless essential that judge advocates

understand the basic concepts involved in a determination to use force. Using this mission statement provided by higher

authority, the judge advocate must become familiar with the legal justification for the mission and, in coordination with

higher headquarters, be prepared to brief all local commanders on the justification. This will enable commanders to better

plan their missions, structure public statements, and conform their conduct to national policy. It will also assist

commanders in drafting and understanding Rules of Engagement (ROE) for the mission, as one of the primary purposes

of ROE is to ensure that any use of force is consistent with national security and policy objectives.

The judge advocate must also be mindful of the fact that the success of any military mission abroad will likely

depend upon the degree of domestic support demonstrated during the initial deployment and sustained operation of U.S.

forces. A clear, well-conceived, effective, and timely articulation of the legal basis for a particular mission will be

essential to sustaining support at home and gaining acceptance abroad.

The General Prohibition Against the Use of Force

The UN Charter mandates that all member nations resolve their international disputes peacefully,1and requires that

they refrain in their international relations from the threat or use of force.2 An integral aspect of this proscription is the

principle of nonintervention, that States must refrain from interference in the internal affairs of another. Stated another

way, nonintervention stands for the proposition that States must respect one anothers sovereignty. American policy

statements have frequently affirmed this principle, and it has been made an integral part of U.S. law through the

ratification of the Charters of the UN and the Organization of American States (OAS), 3

as well as other multilateral international agreements which specifically incorporate nonintervention as a basis for mutual

cooperation.

1 UN Charter, Article 2(3): "All Members shall settle their international disputes by peaceful means in such a manner that international peace and

security and justice are not endangered." The UN Charter is reprinted in full in this Handbook.

2 UN Charter, Article 2(4): "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or

political independence of any state . . . ."

3 OAS Charter, art. 18: "No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external

affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the

personality of the State or against its political, economic and cultural elements."

Inter-American Treaty of Reciprocal Assistance (Rio Treaty) , art. I: ". . . Parties formally condemn war and undertake in their international relations

not to resort to threat or the use of force in any manner inconsistent with the provisions of the Charter of the United Nations or this Treaty."

Chapter 1

Legal Basis for the Use of Force

1
THE LAWFUL USE OF FORCE

Despite the UN Charters broad legal prohibitions against the use of force and other forms of intervention, specific

exceptions exist that justify a States recourse to the use of force or armed intervention. While States have made

numerous claims, utilizing a wide variety of legal bases to justify a use of force, it is generally agreed that only two types

of action legitimately fall within the ambit of international law: (1) actions sanctioned by the UN Security Council under

Chapter VII of the UN Charter, and (2) actions that constitute a legitimate act of individual or collective self defense

pursuant to Article 51 of the UN Charter and/or customary international law.

UN Enforcement Actions (Chapter VII)

Chapter VII of the UN Charter, entitled Action With Respect to Threats to the Peace, Breaches of the Peace, and

Acts of Aggression, gives the Security Council authority to determine what measures should be employed to address acts

of aggression or other threats to international peace and security. The Security Council must first, in accordance with

Article 39, determine the existence of a threat to the peace, breach of the peace, or act of aggression. It then has the

power under Article 41 to employ measures short of force, including a wide variety of diplomatic and economic sanctions

against the delinquent State, to compel compliance with its decisions. Should those measures be inadequate, the Security

Council has the power to authorize member States to employ military force in accordance with Article 42. Using this

authority over the past decade, the Security Council has taken the following actions to restore peace and security:

-- Security Council Resolution 678 authorized member States cooperating with the Government of Kuwait to use all

necessary means to enforce previous resolutions. It was passed in response to the Iraqi invasion of Kuwait, pursuant to

the Security Councils authority under Chapter VII.

-- Security Council Resolution 794 authorized member States to use all necessary means to establish, as soon as

possible, a secure environment for humanitarian relief operations in Somalia.

-- Security Council Resolution 940 authorized member States to form a multinational force under unified command

and control and, in this framework, to use all necessary means to facilitate the departure from Haiti of the military

leadership, consistent with the Governors Island Agreement, the prompt return of the legitimately elected President and

the restoration of the legitimate authorities of the Government of Haiti, and to establish and maintain a secure and stable

environment that will permit implementation of the Governors Island Agreement . . . .

-- Security Council Resolution 1031 authorized the member States acting through or in cooperation with the

organization [NATO] referred to in Annex 1-A of the Peace Agreement [Dayton Accords] to establish a multinational

implementation force (IFOR) under unified command and control [NATO] in order to fulfill the role specified in Annex

1-A and Annex 2 of the Peace Agreement; Authorizes the Member States . . . to take all necessary measures to effect the

implementation of and to ensure compliance with Annex 1-A of the Peace Agreement . . .

Regional Organization Enforcement Actions

Chapter VIII of the UN Charter recognizes the existence of regional arrangements among States that deal with such

matters relating to the maintenance of international peace and security as are appropriate for regional actions (Article 52).

Regional organizations, such as the Organization of American States, the Organization of African Unity, and the Arab

League, attempt to resolve regional disputes peacefully, prior to the issue being referred to the UN Security Council.

Regional organizations do not, however, have the ability to authorize, on their own, the use of force (Article 53). Rather,

the Security Council may utilize the regional organization to carry out Security Council enforcement actions.

SELF DEFENSE

The inherent right of all nations to defend themselves was well-established in customary international law prior to

adoption of the UN Charter. Article 51 of the Charter provides:

Chapter 1

Legal Basis for the Use of Force

2
Nothing in the present Chapter shall impair the inherent right of individual or collective self defense if

an armed attack occurs against a member of the UN until the Security Council has taken measures

necessary to maintain international peace and security. . . .

The questions that inevitably arises in conjunction with the codified right of self defense involve the scope of

authority found therein. Does this right, as is suggested by the language of Article 51, exist only when a State is

responding to an actual armed attack, and then only until the Security Council takes effective action? In other words,

has the customary right of self defense been limited in some manner by adoption of the Charter, thus eliminating the

customary concept of anticipatory self defense (see below) and extinguishing a States authority to act independent of the

Security Council in the exercise of self defense?

Those in the international community who advocate a restrictive approach in the interpretation of the Charter, and in

the exercise of self defense, argue that reliance upon customary concepts of self defense, to include anticipatory self

defense, is inconsistent with the clear language of Article 51 and counterproductive to the UN goal of peaceful resolution

of disputes and protection of international order.

In contrast, the majority of States, including the U.S., argue that an expansive interpretation of the Charter is more

appropriate, contending that the customary law right of self defense (including anticipatory self defense) is an inherent

right of a sovereign State that was not negotiated away under the Charter. Arguing that contemporary experience has

demonstrated the inability of the Security Counsel to deal effectively with acts and threats of aggression, these States

argue that rather than artificially limiting a States right of self defense, it is better to conform to historically accepted

criteria for the lawful use of force, including circumstances which exist outside the four corners of the Charter.

Customary International Law and the UN Charter

It is well accepted that the UN Charter provides the essential framework of authority for use of force, effectively

defining the foundations for a modern jus ad bellum. Inherent in its principles are the requirements for both necessity

(the exhaustion or ineffectiveness of peaceful means of resolution; the nature of coercion applied by the aggressor State;

objectives of each party; and the likelihood of effective community intervention) and proportionality (limitation of force

to the magnitude, scope and duration to that which is reasonably necessary to counter a threat or attack), as well as an

element of timeliness (i.e., delay of a response to attack or threat of attack attenuates the immediacy of the threat and the

necessity for use of force).

Within the bounds of both the UN Charter and customary practice, the inherent right of self defense has primarily

found expression in three recurring areas: 1) protection of nationals and their property located abroad, 2) protection of a

nations political independence, and 3) protection of a nations territorial integrity. Judge advocates must be familiar with

these foundational issues, as well as basic concepts of self defense, as they relate to both overseas deployments and

operations, such as the CJCS Standing ROE and the response to state-sponsored terrorism.

Protection of Nationals

Customarily, a State has been afforded the right to protect its citizens abroad if their lives are placed in jeopardy and

a host State is either unable or unwilling to protect them. This right is cited as the justification for non-combatant

evacuation operations, discussed in greater detail in the chapter on Non-Combatant Evacuation Operations in this

Handbook.

The protection of U.S. nationals was also cited as one of the legal bases justifying initial U.S. military intervention in

both Grenada and Panama. In each case, however, the United States emphasized that protection of U.S. nationals,

standing alone, did not necessarily provide the legal basis for the full range of U.S. activities undertaken in those

countries. Thus, while intervention for the purpose of protecting nationals is both valid and an essential element in certain

uses of force, it cannot serve as an independent basis for continued U.S. military presence in another country after the

mission of safeguarding U.S. nationals has been accomplished.

The right to use force to protect citizens abroad also extends to those situations in which a host State is an active

participant in the activities posing a threat to another States citizens (e.g., the government of Irans participation in the

Chapter 1

Legal Basis for the Use of Force

3
hostage taking of U.S. embassy personnel in that country (1979-81); and Ugandan President Idi Amins support of

terrorists who kidnapped Israeli nationals and held them at the airport in Entebbe).

Protection of Political Independence

A States political independence is a direct attribute of sovereignty and includes the right to select a particular form

of government and its officers, to enter into treaties, and to maintain diplomatic relations with the world community. The

rights of sovereignty or political independence also include the freedom to engage in trade and other economic activity.

Consistent with the principles of the UN Charter and customary international law, each State has the duty to respect the

political independence of every other State. Accordingly, force may be used to protect a States political independence

when it is threatened and all other avenues of peaceful redress have been exhausted.

Protection of Territorial Integrity

States possess an inherent right to protect their national borders, airspace, and territorial seas. No nation has the right

to violate another nations territorial integrity, and force may be used to preserve that integrity consistent with the

customary right of self defense.

Collective Self Defense

To constitute a legitimate act of collective self defense, all conditions for the exercise of an individual States right of

self defense must be met - with the additional requirement that assistance is requested. There is no recognized right of a

third-party State to intervene in internal conflicts where the issue in question is one of a groups right to selfdetermination and no request by the de jure government for assistance.

Collective Defense Treaties and Bilateral Military Assistance Agreements.

Collective defense treaties, such as the North Atlantic Treaty (NATO); the Inter-American Treaty of Reciprocal

Assistance (the Rio Treaty); the Security Treaty Between Australia, New Zealand, and the United States (ANZUS); and

other similar agreements do not provide an international legal basis for the use of U.S. force abroad, per se. These

agreements simply establish a commitment among the parties to engage in collective self defense, in specified

situations, and the framework through which such measures are to be taken. From an international law perspective, a

legal basis for engaging in measures involving the use of military force abroad must still be established from other

sources of international law extrinsic to these collective defense treaties (i.e., collective self defense).

The United States has entered into bilateral military assistance agreements with numerous countries around the

world. These are not defense agreements and thus impose no commitment on the part of the United States to come to the

defense of the other signatory in any given situation. Moreover, such agreements, like collective defense treaties, also

provide no intrinsic legal basis for the use of military force.

Anticipatory Self Defense Under Customary Law

As discussed above, many States embrace an interpretation of the UN Charter that extends beyond the black letter

language of Article 51, embracing the customary law principle of anticipatory self defense; that is, justifying use of

force to repel not just actual armed attacks, but also imminent armed attacks. Under this concept, a State was not

required to absorb the first hit before it could resort to the use of force in self defense to repel an imminent attack.

Anticipatory self defense finds its roots in the 1842 Caroline case and a pronouncement by then-U.S. Secretary of

State Daniel Webster that a State need not suffer an actual armed attack before taking defensive action, but may engage in

anticipatory self defense if the circumstances leading to the use of force are instantaneous, overwhelming, and leaving no

choice of means and no moment for deliberation. As with any form of self defense, the principles of necessity and

proportionality serve to bind the actions of the offended State.

Because the invocation of anticipatory self defense is fact-specific in nature, and therefore appears to lack defined

standards of application, it remains controversial in the international community. Concerns over extension of anticipatory

Chapter 1

Legal Basis for the Use of Force

4
self defense as a pretext for reprisal or even preventive actions (i.e., use of force before the coalescence of an actual

threat) have not been allayed by contemporary use. The United States in particular, in actions such as ELDORADO

CANYON (the 1986 strike against Libya) and the 1998 missile attack against certain terrorist elements in Sudan and

Afghanistan, has increasingly employed anticipatory self defense as the underlying rationale for use of force in response

to actual or attempted acts of violence against U.S. citizens and interests.

It is important to note, however, that anticipatory self defense serves as a foundational element in the CJCS Standing

ROE, as embodied in the concept of hostile intent, which makes it clear to commanders that they do not and should not

have to absorb the first hit before their right and obligation to exercise self defense arises.

DOMESTIC LAW AND THE USE OF FORCE: THE WAR POWERS RESOLUTION

In every situation involving the possible use of U.S. force abroad, one of the first legal determinations to be made

embraces application of Constitutional principles and the 1973 War Powers Resolution (WPR), Public Law 93-148, 50

U.S.C. §§ 1541-1548.

The Constitution divides the power to wage war between the Executive and Legislative branches of government.

Under Article I, the power to declare war, to raise and support armies, to provide and maintain a navy, and to make all

laws necessary and proper for carrying into execution the foregoing is held by the Congress. Balancing that legislative

empowerment, Article II vests the executive power in the President and makes him the Commander-in-Chief of the armed

forces. This ambiguous delegation of the war powers created an area in which the coordinate political branches of

government exercise concurrent authority over decisions relating to the use of armed forces overseas as an instrument of

U.S. foreign policy.

Until 1973, a pattern of executive initiative, Congressional acquiescence, and judicial deference combined to give the

President primacy in decisions to employ U.S. forces. In order to reverse the creeping expansion of Presidential authority

and to reassert its status as a full partner in decisions relating to use of U.S. forces overseas, Congress passed, over

presidential veto, the WPR. The stated purpose of the WPR is to ensure the collective judgment of both branches in

order to commit to the deployment of U.S. forces by requiring consultation of and reports to Congress, in any of the

following circumstances:

(1) Introduction of troops into actual hostilities;

(2) Introduction of troops, equipped for combat, into a foreign country; or

(3) Greatly enlarging the number of troops equipped for combat, in a foreign country.

The President is required to make such reports within 48 hours of the triggering event, detailing the circumstances

necessitating introduction or enlargement of troops, the Constitutional or legislative authority upon which he bases his

action, and the estimated scope and duration of the deployment or combat action.

The issuance of such a report, or a demand by Congress for the President to issue such a report, triggers a sixty-day

clock. If Congress does not declare war, specifically authorize the deployment / combat action, or authorize an extension

of the WPR time limit. During that period, the President is required to terminate the triggering action and withdraw

deployed forces. The President may extend the deployment for up to thirty days should he find circumstances so require,

or for an indeterminate period if Congress has been unable to meet due to an attack upon the United States.

Because the War Powers Resolution was enacted over the Presidents veto, one of the original purposes of the act

establishment of a consensual, inter-branch procedure for committing our forces overseaswas undercut: no President

has conceded the constitutionality of the WPR or technically complied with its mandates. Although the applicability of

the WPR to specific operations will not be made at the Corps or Division level, once U.S. forces are committed overseas,

a deploying judge advocate must be sensitive to the impact of the WPR on the scope of operations, particularly with

respect to the time limitation placed upon deployment under independent Presidential action (i.e., the WPRs 60 day

clock).

Chapter 1

Legal Basis for the Use of Force

5
Procedures have been established which provide for CJCS review of all deployments that may implicate the WPR.

The Chairmans Legal Advisor, upon reviewing a proposed force deployment, is required to provide to the DoD General

Counsel his analysis of the WPRs application. If the DoD General Counsel makes a determination that the situation

merits further inter-agency discussion, he or she will consult with both the State Department Legal Advisor and the

Attorney General. As a result of these discussions, advice will then be provided to the President concerning the

consultation and reporting requirements of the WPR.

In the unlikely event that a Judge Advocate or his supported commander is presented with a question regarding the

applicability of the WPR, the appropriate response should be that the operation is being conducted at the direction of the

National Command Authority and is therefore presumed to be in accordance with applicable domestic legal limitations

and procedures.

Chapter 1

Legal Basis for the Use of Force

6
CHAPTER 2

THE LAW OF WAR

REFERENCES

1. Hague Convention No. IV, 18 October 1907, Respecting the Laws and Customs of War on

Land, T.S. 539, including the regulations thereto [hereinafter H. IV].

2. Hague Convention No. IX, 18 October 1907, Concerning Bombardment by Naval Forces

in Time of War, 36 Stat. 2314 [hereinafter H. IX].

3. Geneva Convention, for the Amelioration of the Condition of the Wounded and Sick in

Armed Forces in the Field, August 12, 1949, 6 U.S.T. 3114, T.I.A.S. 3362, 75 U.N.T.S. 31

[hereinafter GWS].

4. Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and

Shipwrecked Members, August 12, 1949, 6 U.S.T. 3217, T.I.A.S. 3363, 75 U.S.T.S. 85

[hereinafter GWS Sea].

5. Geneva Convention, Relative to the Treatment of Prisoners of War, August 12, 1949, 6

U.S.T. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135 [hereinafter GPW].

6. Geneva Convention, Relative to the Protection of Civilian Persons in Time of War,

August 12, 1949, 6 U.S.T. 3516, T.I.A.S. 3365, 75 U.N.T.S. 287 [hereinafter GC].

7. The 1977 Protocols Additional to the Geneva Conventions, December 12, 1977, 16 I.L.M.

1391, DA Pam 27-1-1 [hereinafter GP I & II].

8. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other

Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94

L.N.T.S. 65 [hereinafter 1925 Geneva Protocol].

9. Convention on the Prohibition of the Development, Production, Stockpiling and Use of

Chemical Weapons and on Their Destruction, January 13, 1993, 32 I.L.M. 800

[hereinafter 1993 CWC].

10. 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed

Conflict, May 14, 1954, 249 U.N.T.S. 216 [hereinafter 1954 Cultural Property

Convention].

11. Convention on the Prohibition of the Development, Production and Stockpiling of

Bacteriological (Biological) and Toxin Weapons and on Their Destruction, April 10,

1972, 26 U.S.T. 583 [hereinafter 1972 Biological Weapons Convention].

12. Convention on Prohibitions or Restrictions of the Use of Certain Conventional Weapons

Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects,

October 10, 1980, 19 I.L.M. 1523 [hereinafter 1980 Conventional Weapons Treaty].

13. Dept of the Army, Field Manual 27-10, The Law of Land Warfare (July 1956)

[hereinafter FM 27-10].

14. Dept of the Navy, Naval Warfare Publication 1-14M/U.S. Marine Corps MCPW 5-2.1,

The Commanders Handbook on the Law of Naval Operations (October 1995)

[hereinafter NWP 1-14M].

15. Dept of Defense Instruction 5000.2, Operation of the Defense Acquisition System, 23

October 2000.

16. Dep't of Defense Directive 5100.77, DoD Law of War Program, 9 December 1998.

17. Chairman of the Joint Chiefs of Staff Instruction 5810.01A, Implementation of the DoD

Law of War Program, 27 August 1999.

INTRODUCTION

This Chapter will describe in detail the restrictions placed upon military members and commanders in the conduct of

operations in both international and non-international armed conflicts. This chapter will discuss the purposes and basic

Chapter 2

Law of War

7
principles of the Law of War, its application in armed conflict, the legal sources of the law, the conduct of hostilities,

treatment of protected persons, military occupation of enemy territory, neutrality, and compliance and enforcement

measures. The Appendices to this chapter include a Law of War Teaching Outline and a Troop Information Outline.

PURPOSES AND BASIC PRINCIPLES OF THE LAW OF WAR

The fundamental purposes of the law of war are both humanitarian and functional in nature. The humanitarian

purposes include:

1. protecting both combatants and noncombatants from unnecessary suffering;

2. safeguarding the fundamental human rights of persons who fall into the hands of armed belligerents; and

3. facilitating the restoration of peace.

The functional purposes include:

1. preventing the deterioration of good order and discipline in the unit;

2. maintaining the humanity of the soldiers involved in the conflict; and

3. maintaining the support of the public for the conflict.

To further the above ends, the Law of War rests on four basic principles:

Principle of Military Necessity or Military Objective - This principle states that attacks may be made only against

those targets which are valid military objectives. The definition of military objective is found in Article 52(2) of Protocol

I: Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are

limited to those objects which by their nature, location, purpose or use make an effective contribution to military action

and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite

military advantage.

Examples of enemy military objectives which by their nature make an effective contribution to the military action:

combatants, armored fighting vehicles, weapons, fortifications, combat aircraft and helicopters, supply depots of

ammunition and petroleum, etc.

Examples of enemy military objectives which by their location make an effective contribution to the military action:

A narrow mountain pass through which the enemy formation must pass, bridge over which the enemys main supply

route (MSR) crosses, a key road intersection through which the enemys reserve will pass, etc.

Examples of enemy military objectives which by their purpose make an effective contribution to the military action:

Civilian buses or trucks which are being transported to the front to move soldiers from point A to B, a factory which is

producing ball bearings for the military. The criterion of purpose is concerned with the intended future use of an object.

Examples of enemy military objectives which by their use make an effective contribution to the military action: An

enemy headquarters located in a school, an enemy supply dump located in a residence, a hotel which is used as billets for

enemy troops. The criterion of use is concerned with the present function of the object.

Criminal Defense. Military necessity has been urged as a defense to law of war violations, but generally has been

rejected as a defense for acts forbidden by customary and conventional laws of war. Rationale: laws of war were crafted

to include consideration of military necessity. Look to whether international law allows targeting of a person or property:

Protected Persons. The law of war generally prohibits the intentional targeting of protected persons under any

circumstances.

Chapter 2

Law of War

8
Protected Places - The Rendulic Rule. The law of war typically allows destruction of civilian property if military

circumstances necessitate such destruction. (FM 27-10, para. 56 and 58.) The circumstances justifying destruction of

protected property are those of urgent military necessity as they appear to the commander at the time of the decision.

See IX Nuremberg Military Tribunals, Trials of War Criminals Before the Nuremberg Military Tribunals, 1113 (1950).

The Tribunal dismissed charges that General Lothar Rendulic unlawfully destroyed civilian property via a scorched

earth policy because the conditions, as they appeared to the defendant at the time were sufficient upon which he could

honestly conclude that urgent military necessity warranted the decision made. Current norms for protection (and

destruction) of civilian property: Do not destroy real or personal property of civilians except where such destruction is

rendered absolutely necessary by military operations. (GC, art. 53.) It is forbidden . . . to destroy or seize the enemys

property . . unless demanded by the necessities of war. (HR, art. 23g.)

There may be situations where because of poor intelligence or the failure of the enemy to abide by the law of

war, mistakes are made concerning the status of a site: Example: Al Firdus Bunker. During the Persian Gulf War,

planners identified this bunker as a military objective. Barbed wire surrounded the complex, it was camouflaged, and

armed sentries guarded its entrance and exit points. Unknown to coalition planners, however, Iraqi civilians used the

shelter as nighttime sleeping quarters. The complex was bombed, resulting in 300 civilian casualties. Was there a

violation of the law of war? No. Based on information gathered by coalition planners, the commander made a reasonable

assessment that the target was a military. Although the attack unfortunately resulted in numerous civilian deaths, (and

that in hindsight, the attack might have been disproportionate to the military advantage gainedhad the attackers known

of the civilians) there was no international law violation because the attackers, at the time of the attack, acted reasonably.

See DEPARTMENT OF DEFENSE, CONDUCT OF THE PERSIAN GULF WAR, FINAL REPORT TO CONGRESS 615-16 (1992).

Principle of Unnecessary Suffering or Humanity - It is especially forbidden . . . to employ arms, projectiles or

material calculated to cause unnecessary suffering. (HR, art. 23e.) This concept also extends to unnecessary destruction

of property. Combatants may not use arms that are per se calculated to cause unnecessary suffering (e.g., projectiles filled

with glass, irregularly shaped bullets, dum-dum rounds, lances with barbed heads), and may not use otherwise lawful

arms in a manner that causes unnecessary suffering; for example, with the intent to cause unnecessary suffering.

Principle of Proportionality - The anticipated loss of life and damage to property incidental to attacks must not be

excessive in relation to the concrete and direct military advantage expected to be gained. (FM 27-10, para. 41, change 1.)

Protocol I. Under GP I, Article 51 (Protection of the civilian population), paragraph 5(b) prohibits indiscriminate

attacks, defined in part as an attack where incidental injury to civilians or incidental damage to civilian objects would be

excessive in relation to the concrete and direct military advantage anticipated. Under GP I, Article 57 (Precautions in

the attack), paragraph (2)(b) requires planners to cancel an attack in the same circumstances. The U.S. considers these

provisions customary international law.

Example: During Operation Allied Force, Serbian civilians painted red targets on themselves and congregated on key

bridges over the Danube River. These bridges were military objectives because they enabled the Serbs to quickly

transfer military forces. The Commander making the targeting decision had to balance the concrete and direct military

advantage gained by destruction of the bridge against the anticipated number of civilian deaths resulting from the attack.

Incidental Injury and Collateral Damage. Collateral damage consists of unavoidable and unplanned damage to

civilian personnel and property incurred while attacking a military objective. Incidental (a/k/a collateral) damage is not a

violation of international law. While no law of war treaty defines this concept, its inherent lawfulness is implicit in

treaties referencing the concept. As stated above, GP I, Article 51(5) describes indiscriminate attacks as those causing

incidental loss of civilian life . . . excessive . . . to . . . the military advantage anticipated.

Judging Commanders. It may be a grave breach of GP I to launch an attack that a commander knows will cause

excessive incidental damage in relation to the military advantage gained. The requirement is for a commander to act

reasonably. Those who plan or decide upon an attack, therefore, must take all reasonable steps to ensure not only that the

objectives are identified as military objectives or defended places . . . but also that these objectives may be attacked

without probable losses in lives and damage to property disproportionate to the military advantage anticipated. (FM 27-

10, para. 41.)

Chapter 2

Law of War

9
In judging a commander's actions one must look at the situation as the commander saw it in light of all

circumstances. See A.P.V. Rogers, Law on the Battlefield 66 (1996) and discussion of the Rendulic Rule, above. But

based on case law and modern applications, the test is not entirely subjectivereasonableness implies an objective

element as well. In this regard, two questions seem relevant. First, did the commander reasonably gather information to

determine whether the target was a military objective and that the incidental damage would not be disproportionate?

Second, did the commander act reasonably based on the gathered information? Of course, factors such as time, available

staff, and combat conditions affecting the commander must also weigh in the analysis.

Principle of Discrimination or Distinction. This principle requires that combatants be distinguished from noncombatants, and that military objectives be distinguished from protected property or protected places. Parties to a conflict

shall direct their operations only against combatants and military objectives. (GP I, Art. 48) GP I prohibits

indiscriminate attacks. Under Article 51, paragraph 4, these are attacks that: are not directed against a specific

military objective, (e.g., Iraqi SCUD missile attacks on Israeli and Saudi cities during the Persian Gulf War); employ a

method or means of combat the effects of which cannot be directed at a specified military objective, (e.g., might prohibit

area bombing in certain populous areas, such as a bombardment which treats as a single military objective a number of

clearly separated and distinct military objectives in a city, town, or village...(GP I, art. 51, para. 5(a))); or employ a

method or means of combat the effects of which cannot be limited as required by the Protocol (e.g., release of dangerous

forces (GP I, art. 56) or collateral damage excessive in relation to concrete and direct military advantage (GP I, art. 51,

para. 5(b)); and consequently, in each case are of a nature to strike military objectives and civilians or civilian objects

without distinction.

APPLICATION OF THE LAW OF WAR

The Law of War applies to all cases of declared war or any other armed conflicts that arise between the U.S. and

other nations, even if the state of war is not recognized by one of them. FM 27-10, para. 8. It also applies to cases of

partial or total occupation. This threshold is codified in common article 2 of the Geneva Conventions. Armed conflicts

such as the Falklands War, the Iran-Iraq War, and Desert Storm were clearly international armed conflicts to which the

Law of War applied. While the 1977 Protocol I to the 1949 Geneva Conventions has expanded this scope of application

to include certain wars of national liberation, the U.S. is not a Party to the Protocol and does not recognize this

extension of the Law of War.

In peace operations, such as those in Somalia, Haiti, and Bosnia, the question frequently arises whether the Law of

War applies to those operations. The issue hinges on whether the peace operations forces undertake a combatant role. It

has thus far been the U.S., UN, and NATO opinion that their forces have not become combatants, despite carrying out

some offensive-type operations (e.g. Task Force Ranger in Somalia, Operations Deny Flight and Deliberate Force in

Bosnia). Despite the legal inapplicability of the Law of War to these operations, it is, nonetheless, the position of the

U.S., UN, and NATO that their forces will apply the principles and spirit of the Law of War in these operations.

This approach is consistent with DoD policy to comply with the Law of War in the conduct of military operations

and related activities in armed conflict, however such conflicts are characterized. (DoD Directive 5100.77, para. 5.3.1)

CJCSI 5810.01, para. 5.a. states that the U.S. will apply law of war principles during all operations that are categorized

as Military Operations Other Than War. In applying the DoD policy, however, allowance must be made for the fact that

during these operations U.S. Forces often do not have the resources to comply with the Law of War to the letter. It has

been U.S. practice to comply with the Law of War to the extent practicable and feasible. Memorandum of W. Hays

Parks to the Judge Advocate General of the Army, 1 October 1990.

SOURCES OF THE LAW OF WAR.

The Law of The Hague (ref. (1) and (2)). Regulates methods and means of warfareprohibitions against using certain

weapons such as poison; and humanitarian concerns such as warning the civilian population before a bombardment. The

rules relating to the methods and means of warfare are primarily derived from articles 22 through 41 of the Regulations

Respecting the Laws and Customs of War on Land [hereinafter HR] annexed to Hague Convention IV. (HR, art. 22-41.)

Article 22 states that the means of injuring the enemy are not unlimited.

Geneva Conventions of 1949 (ref. (3) - (6)). The Conventions protect victims of war such as wounded and sick,

shipwrecked at sea, prisoners of war, and civilians.

Chapter 2

Law of War

10
1977 Geneva Protocols (ref. (7)). Although the U.S. has not ratified GP I and II, judge advocates must be aware that

approximately 150 nations have ratified the Protocols (thus most of the 185 member states of the UN). The Protocols will

come into play in most international operations. U.S. Commanders must be aware that many allied forces are under a

legal obligation to comply with the Protocols. Furthermore, the U.S. considers many of the provisions of the Protocols to

be applicable as customary international law. The impetus for drafting the Protocols was the International Committee of

the Red Cross belief that the four Geneva Conventions and the Hague Regulations insufficiently covered certain areas of

warfare in the conflicts following WWII, specifically aerial bombardments, protection of civilians, and wars of national

liberation. New or expanded areas of definition and protection contained in Protocols include provisions for: medical

aircraft, wounded and sick, prisoners of war, protections of the natural environment, works and installations containing

dangerous forces, journalists, protections of civilians from indiscriminate attack, and legal review of weapons.

The U.S. views the following GP I articles as either legally binding as customary international law or acceptable

practice though not legally binding: 5 (appointment of protecting powers); 10 (equal protection of wounded, sick, and

shipwrecked); 11 (guidelines for medical procedures); 12-34 (medical units, aircraft, ships, missing and dead persons);

35(1)(2) (limiting methods and means of warfare); 37 (perfidy prohibitions); 38 (prohibition against improper use of

protected emblems); 45 (prisoner of war presumption for those who participate in the hostilities); 51 (protection of the

civilian population, except para. 6 -- reprisals); 52 (general protection of civilian objects); 54 (protection of objects

indispensable to the survival of the civilian population); 57-60 (precautions in attack, undefended localities, and

demilitarized zones); 62 (civil defense protection); 63 (civil defense in occupied territories); 70 (relief actions); 73-89

(treatment of persons in the power of a party to the conflict; women and children; and duties regarding implementation of

GPI).

The U.S. specifically objects to articles: 1(4) (GP I applicability to certain types of armed conflicts - wars of national

liberation from colonial domination, alien occupation, and racist regimes); 35(3) (environmental limitations on

means and methods of warfare); 39(2) (limits on the use of enemy flags and insignia); 44 (expansion of definition of

combatants, relaxing of requirement to wear fixed distinctive insignia recognizable at a distance; reducing threshold of

lawful combatants status to requirement to carry arms openly during military engagement or in military deployment

preceding an attack; when visible to an adversary); 47 (non-protection of mercenaries); 55 (protection of the natural

environment) and 56 (protection of works and installations containing dangerous forces). See Michael J. Matheson, The

United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949

Geneva Conventions, 2 Am. U. J. Intl L. & Poly 419, 420 (1987)

Other Treaties. The following treaties restrict specific aspects of warfare:

Gas (ref. (8) and (9)). Geneva Protocol of 1925 prohibits use in war of asphyxiating, poisonous, or other gases . . . .

U.S. reserved the right to respond with chemical weapons to a chemical attack by the enemy. The Chemical Weapons

Convention (CWC), article I(1), prohibits production, stockpiling, and use (even in retaliation). The U.S. ratified the

CWC in April 1997.

Cultural Property (ref. (10)). The 1954 Hague Cultural Property Convention prohibits targeting cultural property,

and sets forth conditions when cultural property may be used by a defender or attacked. Although the United States has

not ratified the treaty, it does regard its provisions as relevant to the targeting process: United States policy and the

conduct of operations are entirely consistent with the Conventions provisions. In large measure, the practices required

by the convention to protect cultural property were based upon the practices of US military forces during World War II.

Message from the President of the United States transmitting the Hague Protocol to the 106

th Congress for Advice and

Consent, 6 January 1999.

Biological Weapons (ref. (11)). Biological weapons are prohibited by the 1925 Geneva Protocol. In addition,

prohibitions on their use in retaliation, as well as on production, manufacture, and stockpiling, are included in the 1972

Biological Weapons Convention.

Conventional Weapons (ref. (12)). The 1980 Conventional Weapons Treaty restricts or prohibits the use of certain

weapons deemed to cause unnecessary suffering or to be indiscriminate: Protocol I  non-detectable fragments; Protocol

II - mines, booby traps and other devices; Protocol III - incendiaries; and Protocol IV - laser weapons. The U.S. has

ratified the treaty by ratifying Protocols I and II. The Senate is currently reviewing Protocols III and IV and amendments

Chapter 2

Law of War

11
to Protocol II for its advice and consent to ratification. The treaty is often referred to as the UNCCW - United Nations

Convention on Certain Conventional Weapons.

Regulations. Implementing LOW guidance for U.S. Armed Forces is found in respective service regulations. (FM 27-10

(Army), NWP 1-14M/FMFM 1-10 (Navy and Marine Corps), and AFP AFPD 51-4 (Air Force).)

THE CONDUCT OF HOSTILTIES

Lawful Combatants and Unprivileged Belligerents

Combatants. Anyone engaging in hostilities in an armed conflict on behalf of a party to the conflict. Combatants are

lawful targets unless out of combat.

Lawful Combatants. Receive protections of Geneva Conventions, specifically, the GWS, GWS (Sea), and GPW;

gain combatant immunity for their warlike acts; and become prisoners of war if captured.

Geneva Convention of 1949 Definition. (GPW, art. 4; GWS, art. 13.) Combatants include: armed forces of a

Party to the conflict; militia, volunteer corps, and organized resistance movements belonging to a Party to the conflict that

are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and

abide by the laws of war; and members of armed forces of a government not recognized by a detaining authority or

occupying power.

Protocol I Definition. Article 43 states that members of the armed forces of a party to the conflict, except

medical personnel and chaplains, are combatants. Article 44(3) of GP I allows that a belligerent attains combatant status

by merely carrying his arms openly during each military engagement, and when visible to an adversary while deploying

for an attack. GP I thus drops the requirement for a fixed recognizable sign. The U.S. believes this does not reflect

customary international law and diminishes the distinction between combatants and civilians, thus undercutting the

effectiveness of the Law of War.

Unprivileged belligerents. May be treated as criminals under the domestic law of the captor. Unprivileged

belligerents may include spies, saboteurs, or civilians who are participating in the hostilities.

Forbidden Conduct with Respect to Enemy Combatants and Nationals

It is especially forbidden to declare that no quarter will be given, or to kill or injure enemy personnel who have

surrendered. H. IV Reg. Art. 23. It is also forbidden to kill or wound treacherously individuals belonging to the hostile

nation or armed forces. H. IV Reg. Art. 23. Belligerents are likewise prohibited to compel nationals of the enemy state to

take part in hostilities against their own country. H. IV art. 23.

Assassination. Hiring assassins, putting a price on the enemys head, and offering rewards for an enemy

dead or alive is prohibited. (FM 27-10, para 31; E.O. 12333.) Targeting military leadership, however, is not

assassination. See W. Hays Parks, Memorandum of Law: Executive Order 12333 and Assassination, Army Law. Dec.

1989, at 4.

Non-combatants. The law of war prohibits attacks on non-combatants. Among others, non-combatants include

civilians, medical personnel, chaplains, and those out of combat  including prisoners of war and the wounded and sick.

METHODS AND MEANS OF WARFARE/WEAPONS

The rights of belligerents to adopt means of injuring the enemy is not unlimited. (HR, art. 22.)

Legal Review. All U.S. weapons, weapons systems, and munitions must be reviewed by the service TJAG for legality

under the law of war. (DoD Instr. 5000.2, AR 27-53, AFI 51-402 and SECNAVINST 5711.8A.) A review occurs before

the award of the engineering and manufacturing development contract and again before the award of the initial production

contract. (DoD Instr. 5000.2) Legal review of new weapons is also required under Article 36 of GP I.

Chapter 2

Law of War

12
The Test. Is the acquisition and procurement of the weapon consistent with all applicable treaties, customary

international law, and the law of armed conflict? (DoD Instr. 5000.2, para. 4.7.3.1.4.) In the TJAG reviews, the

discussion will often focus on whether the suffering occasioned by the use of the weapon is needless, superfluous, or

grossly disproportionate to the advantage gained by its use.

Weapons may be illegal:

Per se. Those weapons calculated to cause unnecessary suffering, determined by the usage of states.

Examples: lances with barbed heads, irregularly shaped bullets, projectiles filled with glass. (FM 27-10, para. 34.)

By improper use. Using an otherwise legal weapon in a manner to cause unnecessary suffering. Example: a

conventional air strike against a military objective where civilians are nearby vs. use of a more precise targeting method

that is equally available - if choice is made with intent to cause unnecessary suffering. (The LOW does not mandate the

use of guided munitions.)

By agreement or prohibited by specific treaties. Example: certain land mines, booby traps, and laser weapons

are prohibited under the Protocols to the 1980 Conventional Weapons Treaty.

Small Arms Projectiles. Must not be exploding or expanding projectiles. The Declaration of St. Petersburg

of 1868 prohibits exploding rounds of less than 400 grams (14 ounces). Expanding rounds were prohibited by an 1899

Hague Declaration (of which U.S. was never a party). U.S. practice, however, accedes to this prohibition as being

customary international law. State practice is to use full metal-jacketed small arms ammunition (which reduces bullet

expansion on impact).

Hollow point ammunition. Typically, this is semi-jacketed ammunition that is designed to expand

dramatically upon impact. This ammunition is prohibited for use in armed conflict by customary international law and

the treaties mentioned above. There are situations, however, outside of international armed conflict, where use of this

ammunition is lawful because its use will significantly reduce collateral damage to noncombatants and protected property

(hostage rescue, aircraft security). Matchking ammunition - has a hollow tipbut is not expansive on impact. Tip is

designed to enhance accuracy only and does not cause unnecessary suffering.

High Velocity Small Caliber Arms. Early controversy about M-16 causing unnecessary suffering due to

movement of the high velocity round upon impact. Tests concluded the rounds did not cause unnecessary suffering.

Sniper rifles, .50 caliber machine guns, and shotguns. Much mythology exists about the lawfulness of

these weapon systems. Bottom line: they are lawful weapons, although rules of engagement (policy and tactics) may

limit their use.

Fragmentation. (FM 27-10, para 34.) Legal unless used in an illegal manner (on a protected target or in a

manner calculated to cause unnecessary suffering). Unlawful if fragments are undetectable by X-ray (Protocol I, 1980

Conventional Weapons Treaty).

Land Mines and Booby Traps. Lawful if properly used, however, international process underway to outlaw all

antipersonnel land mines.

Indiscriminate. Primary legal concern: indiscriminate use that endangers civilian population. Articles 4 and

5, Protocol II of the 1980 Conventional Weapons Treaty, restrict placement of mines and booby traps in areas of civilian

concentration.

Remotely delivered mines (those planted by air, artillery, etc.): Only used against military objectives; and

then only if their location can be accurately recorded and if they are self-neutralizing or self-destructing.

Non-remotely delivered mines, booby traps, and other devices: May not be used in towns or cities or other

places where concentrations of civilians are present unless: they are placed in the vicinity of a military objective under

the control of an adverse party; or measures are in place to protect civilians from their effects (posting of signs etc.).

Chapter 2

Law of War

13
Booby Traps: Amended Protocol II of the 1980 Conventional Weapons Treaty also prohibits use of booby

traps on the dead, wounded, childrens toys, medical supplies, and religious objects, among other objects (art. 6).

Amended Protocol II (Mines Protocol). The Senate gave its advice and consent to ratification of Amended

Protocol II and the President subsequently signed the instrument of ratification in May 1999. Amended Protocol II:

(1) Expands the scope of the original Protocol to include internal armed conflicts;

(2) Requires that all remotely delivered anti-personnel land mines (APL) be equipped with self-destruct

devices and backup self-deactivation features;

(3) Requires that all non-remotely delivered APL not equipped with such devices (dumb mines) be used

within controlled, marked, and monitored minefields (Falls short of Presidents APL policy statement

of 16 May 1996 that prohibited U.S. military use of dumb APL except on the Korean Peninsula and

in training);

(4) Requires that all APL be detectable using available technology;

(5) Requires that the party laying mines assume responsibility to ensure against their irresponsible or

indiscriminate use; and

(6) Provides for means to enforce compliance. In his letter of Transmittal, the President emphasized his

continued commitment to the elimination of all APL.

U.S. policy on anti-personnel land mines. U.S. forces may no longer employ APL that do not self-destruct

or self-neutralize, (sometimes called dumb anti-personnel land mines) according to a 16 May 1996 policy statement

issued by the President. Exceptions to this policy: the use of non-self-destructing APL on the Korean Peninsula and for

training purposes. See Antipersonnel Land Mines Law and Policy, Army Lawyer, Dec. 1998, at 22; see generally

Presidential Decision Directive 48 (on file with the Chairman, Joint Chiefs of Staff, Legal Counsel).

Ottawa Process. Initiated by the Canadian Foreign Minister. One hundred nations and assorted NGOs met

in Oslo, Norway in September 1997 to draft the Convention on the Prohibition of the Use, Stockpiling, Production, and

Transfer of Anti-Personnel Mines (APL) and on Their Destruction. The Convention was signed in Ottawa, Canada in

December 1997. As of April 1999, 133 nations had signed the convention and 67 had ratified it. The treaty entered into

force on 1 March 1999. Although the U.S. joined the Process in September of 1997, it withdrew when other countries

would not allow exceptions for the use of APL mines in Korea and other uses of self-destructing/self neutralizing APL.

U.S. Developments. On 17 September 1997, the President announced the following U.S. initiatives in

regards to anti-personnel land mines:

Develop alternatives to APL by the year 2003; field them in South Korea by 2006.

Appointed a Presidential advisor on land mines.

Pursue a ban on APL through the UN Conference on Disarmament.

Increase demining programs.

APL moratorium. Section 580 of the Foreign Operations Authorization Act of 1996 (110 Stat. 751) was to

establish a moratorium on the use of antipersonnel land mines for one year beginning 12 February 1999. Section 1236 of

the FY 99 DoD Authorization Act repealed Section 580: no moratorium will take place.

Incendiaries. (FM 27-10, para. 36.) Examples: Napalm, flame-throwers, tracer rounds, and white phosphorous.

None of these are illegal per se or illegal by treaty. The only U.S. policy guidance is found in paragraph 36 of FM 27-10

which warns that they should not be used in such a way as to cause unnecessary suffering.

Chapter 2

Law of War

14
Napalm and Flame-throwers. Designed for use against armored vehicles, bunkers, and built-up

emplacements.

White phosphorous. Designed for igniting flammable targets such as fuel, supplies, and ammunition and for

use as a smoke agent. White phosphorous (Willy Pete) artillery and mortar ammunition is often used to mark targets for

aerial bombardment.

Protocol III of the 1980 Conventional Weapons Convention. Prohibits use of air-delivered incendiary

weapons on military objectives located within concentrations of civilians. Has not been ratified by the U.S. The U.S. is

currently considering ratifying the protocol - with a reservation that incendiary weapons may be used within areas of

civilian concentrations, if their use will result in fewer civilian casualties. For example: the use of incendiary weapons

against a chemical munitions factory in a city could cause fewer incidental civilian casualties. Conventional explosives

would probably disperse the chemicals, where incendiary munitions would burn up the chemicals.

Lasers. U.S. Policy (announced by SECDEF in Sep. 95) prohibits use of lasers specifically designed, as their

sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision. Recognizes

that collateral or incidental damage may occur as the result of legitimate military use of lasers (range-finding, targeting).

This policy mirrors that found in Protocol IV of the 1980 Conventional Weapons Treaty (this portion not yet ratified by

U.S.). The Senate is reviewing the Protocol for its advice and consent to ratification.

Chemical Weapons. (FM 27-10, para. 37.) Poison has been outlawed for thousands of years. Considered a

treacherous means of warfare. Problemonce unleashed it is hard to control. (HR, art. 23a.)

The 1925 Geneva Protocol. (FM 27-10, para 38, change 1.) Applies to all international armed conflicts.

Prohibits use of lethal, incapacitating, and biological agents. Protocol prohibits use of asphyxiating, poisonous, or other

gases and all analogous liquids, materials or devices. . . . The U.S. considers the 1925 Geneva Protocol as applying to

both lethal and incapacitating chemical agents. Incapacitating Agents: Those chemical agents producing symptoms that

persist for hours or even days after exposure to the agent has terminated. U.S. views riot control agents as having a

transient effectand thus are NOT incapacitating agents. Therefore, the treaty does not prohibit their use in war.

(Other nations disagree with interpretation.) There are, however, policy limitations that are discussed below. Under the

Geneva Protocol of 1925 the U.S. reserved right to use lethal or incapacitating gases if the other side uses them first. (FM

27-10, para. 38b, change 1.) Presidential approval required for use. (E.O. 11850, 40 Fed. Reg. 16187 (1975); FM 27-10,

para. 38c, change 1.) HOWEVER THE U.S. RATIFIED THE CHEMICAL WEAPONS CONVENTION (CWC) IN

1997. THE CWC DOES NOT ALLOW THIS SECOND USE. Riot Control Agents: U.S. has an understanding to the

Treaty that these are not prohibited.

Riot Control Agents (RCA). U.S. RCA Policy is found in Executive Order 11850. Applies to use of Riot

Control Agents and Herbicides; requires presidential approval before first use in an armed conflict.

EO 11850: renounces first use in armed conflicts except in defensive military modes to save lives such

as: controlling riots in areas under direct and distinct U.S. military control, to include rioting prisoners of war; dispersing

civilians where the enemy uses them to mask or screen an attack; rescue missions for downed pilots/passengers and

escaping PWs in remotely isolated areas; and in our rear echelon areas outside the zone of immediate combat to protect

convoys from civil disturbances, terrorists and paramilitary organizations.

Oleoresin Capsicum Pepper Spray (OC) a/k/a Cayenne Pepper Spray: U.S. classifies OC as a Riot

Control Agent. (DAJA-IO, Information Paper of 15 August 1996, Use of Oleoresin Capsicum (OC) Pepper Spray and

other Riot Control Agents (RCAs); DAJA-IO Memo of 20 September 1994, Subject: Request for Legal Review - Use of

Oleoresin Capsicum Pepper Spray for Law Enforcement Purposes; CJCS Memo of 1 July 1994, Subject: Use of Riot

Control Agents.)

1993 Chemical Weapons Convention (CWC) (ref. 9). The CWC was ratified by U.S. and came into

force in April 1997.

Chapter 2

Law of War

15
Provisions (twenty-four articles). Article I. Parties agree to never develop, produce, stockpile,

transfer, use, or engage in military preparations to use chemical weapons. Retaliatory use (second use) not allowed;

significant departure from 1925 Geneva Protocol. Requires destruction of chemical stockpiles. Each party agrees not to

use Riot Control Agents (RCAs) as a method of warfare. Article II. Definitions of chemical weapons, toxic chemical,

RCA, and purposes not prohibited by the convention. Article III. Requires parties to declare stocks of chemical weapons

and facilities they possess. Articles IV and V. Procedures for destruction and verification, including routine on-site

inspections. Article VIII. Establishes the Organization for the Prohibition of Chemical Weapons (OPWC). Article IX.

Establishes challenge inspection, a short notice inspection in response to another partys allegation of non-compliance.

RCA Controversy. The Chemical Weapons Convention prohibits RCA use as method of

warfare. Method of warfare is undefined, however some argue the phrase includes any actions that involve

combatants - including traditional hostage rescue/SAR missions and human shield scenarios previously allowed by EO

11850. The rationale for the prohibition - we do not want to give states the opportunity for subterfuge. Keep all chemical

equipment off the battlefield, even if it is supposedly only for use with RCA. Secondly, we do not want an appearance

problem - with combatants confusing RCA equipment as equipment intended for chemical warfare. EO 11850 is still in

effect and RCA can be used in certain defensive modes with presidential authority. (However, any use in which

combatants may be involved will most likely not be approved.) The Senates resolution of advice and consent for

ratification to the CWC (S. Exec. Res. 75 - Senate Report, S-3373 of 24 April 1997, section 2- conditions, (26) - riot

control agents) required that the President must certify that the U.S. is not restricted by the CWC in its use of riot control

agents, including the use against combatants in any of the following cases: when the U.S. is not a party to the conflict,

in consensual (Chapter VI, UN Charter) peacekeeping operations, and in Chapter VII (UN Charter) peacekeeping

operations.

The implementation section of the resolution requires that the President not modify E.O. 11850.

(See S. Exec Res. 75, section 2 (26)(b), S-3378). The Presidents certification document of 25 April 1997 states that the

United States is not restricted by the convention in its use of riot control agents in various peacetime and peacekeeping

operations. These are situations in which the U.S. is not engaged in the use of force of a scope, duration, and intensity

that would trigger the laws of war with respect to U.S. forces. Thus, during peacekeeping missions (such as Bosnia,

Somalia, Rwanda, and Haiti) it appears U.S. policy will maintain that we are not a party to the conflict for as long as

possible. Therefore RCA would be available for all purposes under E.O. 11850. However, in armed conflicts (such as

Desert Storm, Panama, and Grenada) it is unlikely that the NCA will approve the use of RCA in situations where

combatants are involved due to the CWCs prohibition on the use of RCA as a method of warfare. (Opinion: use of

RCA would be unlikely in the CSAR and the human shield situations used as examples of defensive modes under E.O.

11850, if the RCA use would appear to be a method of warfare.)

Herbicides. E.O. 11850 renounces first use in armed conflicts, except for domestic uses and to control

vegetation around defensive areas. (e.g., Agent Orange in Vietnam.)

Biological. The 1925 Geneva Protocol prohibits bacteriological methods of warfare. The 1972 Biological

Weapons Convention (ref. 11) supplements the 1925 Geneva Protocol and prohibits the production, stockpiling, and use

of biological and toxin weapons. U.S. renounced all use of biological and toxin weapons.

Nuclear Weapons. (FM 27-10, para. 35.) Not prohibited by international law. On 8 July 1996, the

International Court of Justice (ICJ) issued an advisory opinion that There is in neither customary nor international law

any comprehensive and universal prohibition of the threat or use of nuclear weapons. However, by a split vote, the ICJ

also found that The threat or use of nuclear weapons would generally be contrary to the rules of international law

applicable in armed conflict. The Court stated that it could not definitively conclude whether the threat or use of nuclear

weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of the state

would be at stake. (35 I.L.M. 809 (1996).)

BOMBARDMENTS, ASSAULTS, AND PROTECTED AREAS AND PROPERTY

Military Objectives. Objects that, by their nature, use, location, or purpose, make an effective contribution to military

action are legitimate military objectives. (FM 27-10, para. 40, GP I, art. 52(2).) Their destruction, capture or

neutralization is justified if it offers a definite military advantage. There must be a nexus between the object and a

Chapter 2

Law of War

16
definite advantage toward military operations. Examples: enemy equipment, munitions factories, roads, bridges,

railroads, or electrical powers stations.

Warning Requirement. (FM 27-10, para. 43,; see HR, art. 26.) General requirement to warn before a bombardment.

Only applies if civilians are present. Exception: if it is an assault (any surprise attack or an attack where surprise is a key

element). GP I, Article 57(2)(c), however, requires warning of civilians before an attack (not necessarily a

bombardment), unless circumstances do not permit (this is considered customary international law by the U.S.).

Defended Places. (FM 27-10, paras. 39 & 40, change 1.) As a general rule, any place the enemy chooses to defend

makes it subject to attack. Defended places include: a fort or fortified place; a place occupied by a combatant force or

through which a force is passing; and a city or town that is surrounded by defensive positions under circumstances that

the city or town is indivisible from the defensive positions. See also, GP I, Article 51(5)(a), which seems to clarify this

rule. Specifically, it prohibits bombardments that treat as a single military objective a number of clearly separated and

distinct military objectives located in a city, town, or village. . . .

Undefended places. The attack or bombardment of towns, villages, dwellings, or buildings, which are undefended, is

prohibited. (HR, art. 25.) An inhabited place may be declared an undefended place (and open for occupation) if the

following criteria are met:

All combatants and mobile military equipment are removed;

No hostile use made of fixed military installations or establishments;

No acts of hostilities shall be committed by the authorities or by the population; and

No activities in support of military operations shall be undertaken (presence of enemy medical units, enemy sick and

wounded, and enemy police forces are allowed). (FM 27-10, art. 39b, change 1.)

To gain protection as an undefended place, the city must be open to occupation by the adverse party.

(GP I, art. 59)

Natural environment. The environment cannot be the object of reprisals. In the course of normal military operations,

care must be taken to protect the natural environment against long-term, widespread, and severe damage. (GP I, art. 55

- U.S. specifically objects to this article, as the terminology is so vague as to be ineffective.)

Protected Areas. Hospital or safety zones may be established for the protection of the wounded and sick or civilians. (FM

27-10, para. 45.) Articles 8 and 11 of the 1954 Hague Cultural Property Convention provide that certain cultural sites

may be designated in an International Register of Cultural Property under Special Protections. The Vatican and art

storage areas in Europe have been designated under the convention as specially protected. The U.S. asserts that the

Hague Cultural Property Convention special protection regime does not reflect customary international law.

Protected Property.

Civilians. Prohibition against attacking civilians or civilian property. (FM 27-10, para. 246; GP I, art. 51(2).)

Presumption of civilian property attaches to objects traditionally associated with civilian use (dwellings, school, etc.) (GP

I, art. 52(3)), as contrasted with military objectives such as industrial facilities such as munitions factories, which remain

legitimate military objectives even if manned by civilian workers.

Protection of Medical Units and Establishments - Hospitals.(FM 27-10, paras. 257 and 258; GWS art. 19). Fixed or

mobile medical units shall be respected and protected. They shall not be intentionally attacked. Protection shall not

cease, unless they are used to commit acts harmful to the enemy. Warning requirement before attacking a hospital in

which individuals are committing acts harmful to the enemy. The hospital is given a reasonable time to comply with

warning before attack. When receiving fire from a hospital, there is no duty to warn before returning fire in self-defense.

Example: Richmond Hills Hospital, Grenada.

Chapter 2

Law of War

17
Captured Medical Facilities and Supplies of the Armed Forces. (FM 27-10, para. 234). Fixed facilities - May be

used by captors for other than medical care, in cases of urgent military necessity, provided proper arrangements are made

for the wounded and sick who are present. Mobile facilities - Captors may keep mobile medical facilities, provided they

are reserved for care of the wounded and sick. Medical Supplies - May not be destroyed.

Medical Transport. Transports of the wounded and sick or medical equipment shall not be attacked. (GWS, art. 35.)

Under the Geneva Conventions of 1949, medical aircraft were protected from direct attack only if they flew in accordance

with a previous agreement between the parties as to their route, time, and altitude. GP I extends further protection to

medical aircraft flying over areas controlled by friendly forces. Under this regime, identified medical aircraft are to be

respected, regardless of whether a prior agreement between the parties exists. (GP I, art. 25.) In contact zones,

protection can only be effected by prior agreement; nevertheless, medical aircraft shall be respected after they have been

recognized as such. (GP I, art. 26 - considered customary international law by U.S.) Medical aircraft in areas controlled

by an adverse party must have a prior agreement in order to gain protection. (GP I, art. 27.)

Cultural Property. Prohibition against attacking cultural property. The 1954 Cultural Property Convention elaborates,

but does not expand, the protections accorded cultural property found in other treaties (HR, art. 27; FM 27-10, para. 45,

57.) The convention has not been ratified by the U.S. (treaty is currently under review with a view toward ratification

with minor understandings). (See GP I, art. 53, for similar prohibitions.) Cultural property includes buildings dedicated

to religion, art, science, charitable purposes, historic monuments, hospitals, and places where the sick and wounded are

collected. Misuse will subject them to attack. Enemy has duty to indicate presence of such buildings with visible and

distinctive signs.

Works and Installations Containing Dangerous Forces. (GP I, art. 56, and GP II, art. 15.) The rules are not U.S. law

but should be considered because of the pervasive international acceptance of GP I and II. Under the Protocol, dams,

dikes, and nuclear electrical generating stations shall not be attacked - even if they are military objectives - if the attack

will cause the release of dangerous forces and cause severe losses among the civilian population. (U.S. objects to

severe loss language as creating a different standard than customary proportionality test - excessive incidental injury

or damage.) Military objectives that are nearby these potentially dangerous forces are also immune from attack if the

attack may cause release of the forces (parties also have a duty to avoid locating military objectives near such locations).

May attack works and installations containing dangerous forces only if they provide significant and direct support to

military operations and attack is the only feasible way to terminate the support. The U.S. objects to this provision as

creating a standard that differs from the customary definition of a military objective as an object that makes an effective

contribution to military action. Parties may construct defensive weapons systems to protect works and installations

containing dangerous forces. These weapons systems may not be attacked unless they are used for purposes other than

protecting the installation.

Objects Indispensable to the Survival of the Civilian Population. Article 54 of GP I prohibits starvation as a method

of warfare. It is prohibited to attack, destroy, remove, or render useless objects indispensable for survival of the civilian

population - such as foodstuffs, crops, livestock, water installations, and irrigation works.

Protective Emblems.(FM 27-10, para. 238.) Objects and personnel displaying emblems are presumed to be protected

under Conventions. (GWS, art. 38.)

Medical and Religious Emblems. Red Cross, Red Crescent, Lion and Sun. Red Star of David: Not mentioned

in the 1949 Geneva Convention, but is protected as a matter of practice.

Cultural Property Emblems:

A shield, consisting of a royal blue square, one of the angles of which forms the point of the shield and of a

royal blue triangle above the square, the space on either side being taken up by a white triangle. (1954 Cultural Property

Convention, art. 16 and 17).

Hague Convention No. IX Concerning Bombardment by Naval Forces in Time of War (art. 5). [L]arge, stiff,

rectangular panels divided diagonally into two colored triangular portions, the upper portion black, the lower portion

white.

Chapter 2

Law of War

18
Works and Installations Containing Dangerous Forces. Three bright orange circles, of similar size, placed on the

same axis, the distance between each circle being one radius. (GP I, annex I, art. 16.)

Stratagems and Tactics

Ruses. (FM 27-10, para. 48). Injuring the enemy by legitimate deception (abiding by the law of waractions are in good

faith). Examples of ruses:

Naval Tactics. A common naval tactic is to rig disguised vessels or dummy ships, e.g., to make warships appear as

merchant vessels.

Land Warfare. Creation of fictitious units by planting false information, putting up dummy installations, false radio

transmissions, using a small force to simulate a large unit. (FM 27-10, para. 51.)

Gulf War - Coalition: Coalition forces, specifically XVIII Airborne Corps and VII Corps, used deception cells to

create the impression that they were going to attack near the Kuwaiti boot heel, as opposed to the left hook strategy

actually implemented. XVIII Airborne Corps set up Forward Operating Base Weasel near the boot heel, consisting of a

phony network of camps manned by several dozen soldiers. Using portable radio equipment, cued by computers, phony

radio messages were passed between fictitious headquarters. In addition, smoke generators and loudspeakers playing

tape-recorded tank and truck noises were used, as were inflatable Humvees and helicopters. Rick Atkinson, Crusade,

331-33 (1993).

Use of Enemy Property. Enemy property may be used to deceive under the following conditions:

Uniforms. Combatants may wear enemy uniforms but cannot fight in them. Note, however, that military personnel

not wearing their own uniform lose their PW status if captured and risk being treated as spies (FM 27-10, para. 54, 74;

NWP 1-14M, para. 12.5.3; AFP 110-31, 8-6.) For listing of examples of the use of enemy uniforms, see W. Hays Parks,

Air War and the Law of War, 32 A.F. L. Rev. 1, 77-78 (1990).

Colors. The U.S. position regarding the use of enemy flags is consistent with its practice regarding uniforms, i.e., the

U.S. interprets the improper use of a national flag (HR, art. 23(f).) to permit the use of national colors and insignia of

enemy as a ruse as long as they are not employed during actual combat (FM 27-10, para. 54; NWP 1-14M, para 12.5.).

Note the Protocol I position on this issue below.

Equipment. Must remove all enemy insignia in order to fight with it. Captured supplies: may seize and use if state

property. Private transportation, arms, and ammunition may be seized, but must be restored and compensation fixed

when peace is made. (HR, art. 53).

Protocol I. GP I, Article 39(2) prohibits virtually all use of these enemy items. (See NPW 1-14M, para 12.5.3.)

Article 39 prohibits the use in an armed conflict of enemy flags, emblems, uniforms, or insignia while engaging in attacks

or to shield, favour, protect or impede military operations. The U.S. does not consider this article reflective of

customary law. This article, however, expressly does not apply to naval warfare, thus the customary rule that naval

vessels may fly enemy colors, but must hoist true colors prior to an attack, lives on. (GP I, art 39(3); NWP 1-14M, para.

12.5.1.)

Use of Property. (See Elyce Santere, From Confiscation to Contingency Contracting: Property Acquisition on or

Near the Battlefield, 124 Mil. L. Rev. 111 (1989).) Confiscation - permanent taking without compensation; Seizure -

taking with payment or return after the armed conflict; Requisition - appropriation of private property by occupying force

with compensation as soon as possible; Contribution - a form of taxation under occupation law.

Psychological Operations. Gulf War - U.S. PSYOPS leaflet program - PSYOPS units distributed over 29 million leaflets

to Iraqi forces. The themes of the leaflets were the futility of resistance; inevitability of defeat; surrender; desertion and

defection; abandonment of equipment; and blaming the war on Saddam Hussein. It was estimated that nearly 98% of all

Iraqi prisoners acknowledged having seen a leaflet; 88% said they believed the message; and 70% said the leaflets

Chapter 2

Law of War

19
affected their decision to surrender. Adolph, PSYOP: The Gulf War Force Multiplier, Army Magazine 16 (December

1992).

Treachery and Perfidy. Prohibited under the law of war. (FM 27-10, para. 50; HR. art. 23b.) Perfidy involves injuring

the enemy by his adherence to the law of war (actions are in bad faith). Perfidy degrades the protections and mutual

restraints developed in the interest of all Parties, combatants, and civilians. In practice, combatants find it difficult to

respect protected persons and objects if experience causes them to believe or suspect that the adversaries are abusing their

claim to protection under the LOW to gain a military advantage. (FM 27-10, para. 50.)

Feigning and Misuse. Distinguish feigning from misuse. Feigning is treachery that results in killing, wounding, or

capture of the enemy. Misuse is an act of treachery resulting in some other advantage to the enemy. According to GP I,

Article 37(1), the killing, wounding, or capture via [a]cts inviting the confidence of an adversary to lead him to believe

that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict,

with intent to betray that confidence [are perfidious, thus prohibited acts]. (U.S. considers customary law.) Article 37(1)

does not prohibit perfidy per se, only certain perfidious acts that result in killing, wounding, or capturing, although it

comes very close. The ICRC could not gain support for an absolute ban on perfidy at diplomatic conference. Note,

however, that the U.S. view includes breaches of moral, as well as legal, obligation as being a violation, citing the

broadcasting of an announcement to the enemy that an armistice had been agreed upon when it had not as being

treacherous. (FM 27-10, para 50.) Note that in order to be a violation of GP I, Article 37, the feigning of surrender or an

intent to negotiate under a flag of truce must result in a killing, capture, or surrender of the enemy. Simple misuse of a

flag of truce, not necessarily resulting in one of those consequences is, nonetheless, a violation of Article 38 of Protocol I,

which the U.S. also considers customary law. An example of such misuse would be the use of a flag of truce to gain time

for retreats or reinforcements. (HR, art 23(f))

Feigning incapacitation by wounds/sickness. (GPI, art. 37(1)(b).)

Feigning surrender or the intent to negotiate under a flag of truce. (GP I, Art 37(1)(a).)

Feigning civilian, noncombatant status. Attacking enemy forces while posing as a civilian puts all civilians at

hazard. (GP I, art 37(1)(c); NWP 1-14M, para. 12.7.)

Feigning protected status by using UN, neutral, or nations not party to the conflicts signs, emblems, or uniforms.

(GP I, art 37(1)(d).)

Misuse of Red Cross, Red Crescent, and cultural property symbol. Designed to reinforce/reaffirm HR, Article 23f.

GWS requires that wounded & sick, hospitals, medical vehicles, and in some cases, medical aircraft be respected and

protected. Protection lost if committing acts harmful to enemy. Cultural property symbols include 1954 Hague Cultural

Property Convention, Roerich Pact, and 1907 Hague Conventions symbol.

Espionage. (FM 27-10, para. 75; GP I, art. 46.) Acting clandestinely (or on false pretenses) to obtain information for

transmission back to their side. Gathering intelligence while in uniform is not espionage. Espionage is not a law of war

violation. No protection, however, under Geneva Conventions for acts of espionage. If captured, a spy may be tried

under the laws of the capturing nation. E.g., Art. 106, UCMJ. Reaching friendly lines immunizes spy for past espionage

activities. Therefore, upon later capture as a lawful combatant, the alleged spy cannot be tried for past espionage.

Reprisals. (FM 27-10, para 497.) An otherwise illegal act done in response to a prior illegal act by the enemy. The

purpose of a reprisal is to get the enemy to adhere to the law of war. Reprisals are authorized if the following

requirements are met: its timely; its responsive to enemys act; must first attempt a lesser form of redress; and must be

proportional. Prisoners of war and other protected persons in your control cannot be objects of reprisals. Protocol I

prohibits reprisals against numerous targets such as the entire civilian population, civilian property, cultural property,

objects indispensable to the survival of the civilian population (food, livestock, drinking water), the natural environment,

installations containing dangerous forces (dams, dikes, nuclear power plants) (GP I, arts. 51-56). The U.S. position is that

reprisals are prohibited only when directed against protected persons as defined in the Geneva Conventions. U.S. policy

is that a reprisal may be ordered only at the highest levels (NCA).

Chapter 2

Law of War

20
War Trophies. The law of war authorizes the confiscation of enemy military property. War trophies, as long as taken

from enemy military property, are legal under the law of war. The problem with war trophies arises under U.S. domestic

law, rather than under the law of war. Confiscated enemy military property is property of the U.S. The property becomes

a war trophyand capable of legal retention by an individual soldieronly if the U.S. so designates the property IAW

law and regulation.

War Trophy Policy. Section 1171 of the 1994 National Defense Authorization Act states the U.S. policy on war

trophies. In essence, the law amends Title 10 by adding section 2579; 10 U.S.C. § 2579 requires that all enemy material

captured or found abandoned shall be turned in to appropriate personnel. The law, which directs the promulgation of an

implementing directive and service regulations, contemplates that members of the armed forces may request enemy items

as souvenirs. The request would be reviewed by an officer who shall act on the request consistent with military customs,

traditions, and regulations. The law authorizes the retention of captured weapons as souvenirs if rendered unserviceable

and approved jointly by DoD and the Bureau of Alcohol, Tobacco, and Firearms (BATF). Ample flexibility (or

ambiguity) is created by the law so as to continue the need for punitive command policies or regulations which limit the

items that may properly be taken as war trophies. (AR 190-XX, Control and Requisition of War Trophies, will

implement the law; as of this writing, the regulation is still in draft.) USCENTCOM General Order Number 1 is perhaps

the classic example of a war trophy order. These regulations and policies, and relevant UCMJ provisions must be made

known to U.S. forces prior to combat. War trophy regulations must be emphasized early and often, for even those who

are aware of the regulations may be tempted to disregard them if they see others doing so.

The key to a clear and workable war trophy policy is to publicize it before deployment, work it into all exercises and

plans, and train with it! When drafting a war trophy policy, consider the 6 Cs:

1. COMMON SENSEdoes the policy make sense?

2. CLARITYcan it be understood at the lowest level?

3. CIis the word out through all command information means available? (Post on unit bulletin boards, post

in mess facilities, put in post newspaper, put in PSA on radio, etc.)

4. CONSISTENCYare we applying the policy across all layers and levels of command? (A policy

promulgated for an entire Corps is better than diverse policies within subordinate divisions; a policy that is promulgated

by the unified command and applies to all of its components is better still.)

5. CUSTOMSprepare for customs inspections, courtesy inspections prior to redeployment, and amnesty

procedures.

6. CAUTIONRemember one of the prime purposes of a war trophy policy: to limit soldiers from exposing

themselves to danger (in both Panama and the Gulf, soldiers were killed or seriously injured by exploding ordnance

encountered when they were looking for souvenirs). Consider prohibitions on unauthorized bunkering, souvenir

hunting, climbing in or on enemy vehicles and equipment. A good maxim for areas where unexploded ordnance or

booby-traps are problems: If you didnt drop it, dont pick it up.

Rules of Engagement. Defined: Directives issued by competent superior authority that delineate the circumstances and

limitations under which U.S. forces will initiate and/or continue engagement with other forces. ROE are drafted in

consideration of the Law of War, national policy, public opinion, and military operational constraints. ROE are often

more restrictive than what the Law of War would allow.

PROTECTED PERSONS

Hors de Combat. Prohibition against attacking enemy personnel who are out of combat.

Prisoners of War. (GPW, art. 4, HR, art. 23c, d.)

Chapter 2

Law of War

21
Surrender may be made by any means that communicates the intent to give up. No clear-cut rule as to what

constitutes a surrender. However, most agree surrender constitutes a cessation of resistance and placement of ones self at

the discretion of the captor. The onus is on the person or force surrendering to communicate intent to surrender. Captors

must respect (not attack) and protect (care for) those who surrenderno reprisals. GP I art. 44 expands the definition of

prisoners of war to include any combatant "who falls into the power of an adverse Party" Combatants include those who

do not distinguish themselves from the civilian population except when carrying arms openly during an engagement and

in the deployment immediately preceding the engagement; e.g., national liberation movements. (GP I, art. 44.) U.S.

asserts this definition does not reflect customary international law. Captured civilians accompanying the force also

receive PW status (GPW, art. 4(a)(4)).

Identification and Status. The initial combat phase will likely result in the capture of a wide array of

individuals.

4

The U.S. applies a broad interpretation to the term international armed conflict set forth in common

Article 2 of the Conventions. Furthermore, DoD Directive 5100.77, the DoD Law of War Program, states that U.S.

Forces will comply with the LOW regardless of how the conflict is characterized. Judge advocates, therefore, should

advise commanders that, regardless of the nature of the conflict, all enemy personnel should initially be accorded the

protections of the GPW Convention (GPW), at least until their status may be determined. In that regard, recall that

status is a legal term, while treatment is descriptive. When drafting or reviewing guidance to soldiers, ensure that the

guidance mandates treatment, not status. For example, a TACSOP should state that persons who have fallen into the

power of U.S. Forces will be treated as PW, not that such persons will have the status of PW. When doubt exists as

to whether captured enemy personnel warrant continued PW status, Art. 5 (GPW) Tribunals must be convened. It is

important that judge advocates be prepared for such tribunals. During the Vietnam conflict, a Directive established

procedures for the conduct of Art. 5 Tribunals; however, no comparable Directive is presently in effect.5

Treatment. There is a legal obligation to provide adequate food, facilities, and medical aid to all PWs. This

obligation poses significant logistical problems in fast-moving tactical situations; thus, judge advocates must be aware of

how to meet this obligation while placing a minimum burden on operational assets.6PWs must be protected from

physical and mental harm. They must be transported from the combat zone as quickly as circumstances permit. Subject

to valid security reasons, PWs must be allowed to retain possession of their personal property, protective gear, valuables,

and money. These items must not be taken unless properly receipted for and recorded as required by the GPW. In no

event can a PWs rank insignia or identification cards be taken. These protections continue through all stages of captivity,

including interrogation.

Detainees. Particularly in Military Operations Other Than War, where there are no lawful enemy combatants

(e.g., Somalia, Haiti, Bosnia, as discussed above), persons who commit hostile acts against U.S. forces or serious criminal

acts and are captured do not meet the legal criteria of PW under the GPW. These persons may be termed detainees

instead of PW.

4

For example, in two days of fighting in Grenada, Army forces captured approximately 450 Cubans and 500 hostile Grenadians. Panama provided

large numbers of detainees, both civilian and "PDF" (Panamanian Defense Force/police force) for the Army to sort out. The surrender of almost

overwhelming numbers of Iraqi forces in the Gulf War was well publicized.

5 No Article 5 Tribunals were conducted in Grenada or Panama, as all captured enemy personnel were repatriated as soon as possible. In the Gulf War,

Operation DESERT STORM netted a large number of persons thought to be EPWs, who were actually displaced civilians. Subsequent interrogations

determined that they had taken no hostile action against Coalition Forces. In some cases, they had surrendered to Coalition Forces to receive food and

water. Tribunals were conducted to verify the status of the detainees. Upon determination that they were civilians who had taken no part in hostilities,

they were transferred to detainment camps. Whether the tribunals were necessary as a matter of law is open to debate -- the civilians had not

"committed a belligerent act," nor was their status "in doubt."

6 The following examples are illustrative. When U.S. Forces landed in Grenada, they did not possess the food necessary to feed the large number of

PWs and detainees who would come under our control. Thus, we used captured foodstuffs to feed them. Similar situations occurred in Panama. Thus,

by using captured food, the U.S. met its obligation under the GPW, and the ground commanders were able to conserve valuable assets. Initially, PW

facilities on Grenada, in Panama, and in the Gulf were each inadequate in their own ways. They consisted of dilapidated buildings, with no sanitation

facilities or electricity, or were simply non-existent (in the desert). The ground commanders could not afford to use critically needed combat personnel

(the personnel necessary to handle PWs were not initially available) to construct PW camps. Because the LOW does not require combatants to use their

own assets to construct PW camps, the U.S. used captured property and PWs to construct adequate camps. (In fact, in Grenada the PWs were Cuban

construction workers.). Medical assets also tend to be in high demand and short supply during combat. The LOW, however, prohibits the willful denial

of needed medical assistance to PWs, and priority of treatment must be based on medical reasons. While the Capturing Party has the obligation to

ensure adequate medical care for enemy wounded, the GWS Convention encourages the use of "retained persons" to treat enemy wounded. The U.S.

has made use of this provision as well. As these examples indicate, the JA must be familiar with and apply the LOW in a practical manner. In doing so,

he enables the commander to comply with legal requirements, without jeopardizing the mission.

Chapter 2

Law of War

22
Wounded and Sick in the Field and at Sea. (GWS, art. 12; GWS Sea, art. 12.)

The first and second Geneva Conventions as well as the 1977 Protocol I to the Geneva Conventions deal

with protections for the wounded and sick, to include the shipwrecked.

All wounded and sick in the hands of the enemy must be respected and protected (See para. 208, FM 27-10,

GWS Art 13, and GC, Art 16). Each belligerent must treat his fallen adversaries as he would the wounded of his own

army (Pictets Commentary, GWS, p. 137). The order of treatment is determined solely by urgent medical reasons

(triage). No adverse distinctions in treatment may be established because of sex, race, nationality, religion, political

opinions, or any other similar criteria (GWS, Art 12).

If compelled to abandon the wounded and sick to the enemy, commanders must leave medical personnel and

material to assist in their care, as far as military considerations permit (GWS, Art 12). At all times, and particularly

after an engagement parties are obligated to search for the wounded and sick - as conditions permit (GWS, Art 15).

Permanent medical personnel exclusively engaged in medical duties (GWS, Art 24), chaplains (GWS, Art

24), personnel of national Red Cross Societies, and other recognized relief organizations (GWS, Art 26), shall not be

intentionally attacked. Upon capture they are retained personnel, not PWs; however, at a minimum they receive PW

protections. They are to perform only medical or religious duties. They are to be retained as long as required to treat the

health and spiritual needs of PWs. If not required they are to be repatriated (GWS, Art 28). Personnel of aid societies of

neutral countries cannot be retained, and must be returned as soon as possible.

Medical units and establishments may not be attacked. (GWS, Art 19). However, incidental damage to

medical facilities situated near military objectives is not a violation of the law of war. Medical units and facilities lose

their protection if committing acts harmful to the enemy, and, if after a reasonable time, they fail to heed a warning to

desist. No warning requirement if taking fire from the medical unit or establishment; e.g., Richmond Hills Hospital,

Grenada (GWS, Art 21, Pictets Commentary on GWS, pp. 200-201).

Those soldiers who have fallen by reason of sickness or wounds and who cease to fight are to be respected

and protected. Under GP I, civilians are included in the definition of wounded and sick (who because of trauma, disease,

. . . are in need of medical assistance and care and who refrain from any act of hostility). (GP I, art. 8.) As a practical

matter, care should be provided to civilians if medical resources are available. Otherwise, civilian care remains the

primary responsibility of the civilian authorities.

Shipwrecked members of the armed forces at sea are to be respected and protected. (GWS Sea, art. 12, NWP

1-14M, para. 11.6). Shipwrecked includes downed passengers/crews on aircraft, ships in peril, castaways.

Parachutists (FM 27-10, supra, para. 30). Descending paratroopers are presumed to be on a military mission and

therefore may be targeted. Parachutists are crewmen of a disabled aircraft. They are presumed to be out of combat and

may not be targeted unless it is apparent they are engaged on a hostile mission. Parachutists, according to GP I, Article

42, shall be given the opportunity to surrender before being made the object of attack.

Civilians.

General Rule. Civilians and civilian property may not be the subject or sole object of a military attack. Civilians

are persons who are not members of the enemys armed forces, and who do not take part in the hostilities (GP I, art. 50

and 51).

Indiscriminate Attacks. GP I provides for expanded protections of the civilian population from indiscriminate

attacks. Indiscriminate attacks include those where the incidental loss of civilian life, or damage to civilian objects,

would be excessive in relation to the concrete and direct military advantage anticipated. (GP I, art. 51(4).)

Civilian Medical and Religious Personnel. Article 15 of GP I requires that civilian medical and religious

personnel shall be respected and protected. They receive the benefits of the provisions of the Geneva Conventions and

Chapter 2

Law of War

23
the Protocols concerning the protection and identification of medical personnel. All available help shall be given to

civilian medical personnel when civilian services are disrupted due to combat.

Personnel Engaged in the Protection of Cultural Property. Article 17 of the 1954 Hague Cultural Property

Convention established a duty to respect (not directly attack) persons engaged in the protection of cultural property. The

regulations attached to the Convention provide for specific positions as cultural protectors and for their identification.

Journalists. Given protection as civilians provided they take no action adversely affecting their status as

civilians. (GP I, art. 79 -considered customary international law by U.S.).

MILITARY OCCUPATION

The Nature of Military Occupation

Territory is considered occupied when it is actually placed under the authority of the hostile armed forces. The

occupation extends only to territory where such authority has been established and can effectively be exercised. H. IV

Regs. Art. 42. Thus, occupation is a question of fact based on the invader's ability to render the invaded government

incapable of exercising public authority. Simply put, occupation must be both actual and effective. (FM 27-10, para.

352) However, military occupation (also termed belligerent occupation) is not conquest; it does not involve a transfer of

sovereignty to the occupying force. Indeed, it is unlawful for a belligerent occupant to annex occupied territory or to

create a new state therein while hostilities are still in progress. See GC, art. 47. It is also forbidden to compel the

inhabitants of occupied territory to swear allegiance to the hostile occupying power. H IV. Regs. Art. 45. Occupation is

thus provisional in nature, and is terminated if the occupying power is driven out.

Administration of Occupied Territory

Occupied territory is administered by military government, due to the inability of the legitimate government to

exercise its functions, or the undesirability of allowing it to do so. The occupying power therefore bears a legal duty to

restore and maintain public order and safety, while respecting, "unless absolutely prevented," the laws of the occupied

nation. H. IV. Regs Art. 43. The occupying power may allow the local authorities to exercise some or all of their normal

governmental functions, subject to the paramount authority of the occupant. The source of the occupant's authority is its

imposition of government by force, and the legality of its actions is determined by the Law of War.

In restoring public order and safety, the occupant is required to continue in force the normal civil and criminal laws

of the occupied nation, unless they would jeopardize the security of the occupying force or create obstacles to application

of the GC. See GC Art. 64. However, the military and civilian personnel of the occupying power remain immune from

the jurisdiction of local law enforcement.

Articles 46-63 of the GC establish important fundamental protections and benefits for the civilian population in

occupied territory. Family honor, life and property, and religious convictions must be respected. Individual or mass

forcible deportations of protected persons from the occupied territory to the territory of the occupying power or to a third

state are prohibited. GC Art. 49. The occupying power has the duty of ensuring that the population is provided with

adequate food, medical supplies and treatment facilities, hygiene, and public health measures. GC Art. 55. In addition,

children are subject to special protection and care, particularly with respect to their education, food, medical care, and

protection against the effects of war. GC Art. 50.

The occupying power is forbidden from destroying or seizing enemy property unless such action is "imperatively

demanded by the necessities of war," H. IV. Regs. Art. 23, or "rendered absolutely necessary by military operations."

GC Art. 53. "Pillage is formally forbidden." H. IV. Regs. Art. 47. However, the occupying power may requisition goods

and services from the local populace to sustain the needs of the occupying force, "in proportion to the resources of the

country, and of such a nature as not to involve the population in the obligation of taking part in operations of the war

against their country." The occupying power is obliged to pay cash for such requisitions or provide a receipt and make

payment as soon as possible. H. IV. Regs. Art. 52.

Chapter 2

Law of War

24
The occupying power may not compel protected persons to serve in its armed forces, nor may it compel them to work

unless they are over eighteen years old, and then only on work that: (1) is necessary for the needs of the occupying force;

(2) is necessary for public utility services; or (3) for the feeding, sheltering, clothing, transportation or health of the

populace of the occupied country. The occupied country's labor laws regarding such matters as wages, hours, and

compensation for occupational accidents and diseases remain applicable to the protected persons assigned to work by the

occupant. GC Art. 51; see H. IV. Regs. Art. 23.

The occupying power is specifically prohibited from forcing the inhabitants to take part in military operations against

their own country, and this precludes requiring their services in work directly promoting the military efforts of the

occupying force, such as construction of fortifications, entrenchments, and military airfields. See GC Art. 51. However,

the inhabitants may be employed voluntarily in such activities.

Security of the Occupying Force: Penal Law and Procedure

The occupant is authorized to demand and enforce the populace's obedience as necessary for the security of the

occupying forces, the maintenance of law and order, and the proper administration of the country. The inhabitants are

obliged to behave peaceably and take no part in hostilities.

If the occupant considers it necessary, as a matter of imperative security needs, it may assign protected persons

to specific residences or internment camps. GC Art. 78. The occupying power may also enact penal law provisions, but

these may not come into force until they have been published and otherwise brought to the knowledge of the inhabitants

in their own language. Penal provisions shall not have retroactive effect. GC Art. 65.

The occupying power's tribunals may not impose sentences for violation of penal laws until after a regular trial.

The accused person must be informed in writing in his own language of the charges against him, and is entitled to the

assistance of counsel at trial, to present evidence and call witnesses, and to be assisted by an interpreter. The occupying

power shall notify the protecting power of all penal proceedings it institutes in occupied territory. Sentences shall be

proportionate to the offense committed. The accused, if convicted, shall have a right to appeal under the provisions of the

tribunal's procedures or, if no appeal is provided for, he is entitled to petition against his conviction and sentence to the

competent authority of the occupying power. GC, Arts. 72, 73.

Under the provisions of the GC, the occupying power may impose the death penalty on a protected person only

if found guilty of espionage or serious acts of sabotage directed against the occupying power, or of intentional offenses

causing the death of one or more persons, provided that such offenses were punishable by death under the law of the

occupied territory in force before the occupation began. GC Art. 68. However, the United States has reserved the right to

impose the death penalty for such offenses resulting in homicide irrespective of whether such offenses were previously

capital offenses under the law of the occupied state. In any case, the death penalty may not be imposed by the occupying

power on any protected person who was under the age of eighteen years at the time of the offense. GC Art. 68.

The occupying power must promptly notify the protecting power of any sentence of death or imprisonment for

two years or more, and no death sentence may be carried out until at least six months after such notification. GC Arts. 74,

75.

The occupying power is prohibited from imposing mass punishments on the populace for the offenses of

individuals. That is, "No general penalty, pecuniary or otherwise, shall be inflicted upon the populations on account of

the acts of individuals for which they cannot be regarded as jointly and severally responsible." H. IV. Regs Art. 50; see

GC, Art. 33.

In areas occupied by United States forces, military jurisdiction over individuals, other than members of the U.S.

armed forces, is exercised by courts of the military government. Although sometimes designated by other names, these

military tribunals are actually military commissions. They preside in and for the occupied territory and thus exercise their

jurisdiction on a territorial basis.

Chapter 2

Law of War

25
NEUTRALITY

Customary Law Reflected in Hague Convention No. V

Under customary international law, as reflected in Hague Convention No. V, neutrality on the part of a state

not a party to an armed conflict consists in refraining from all participation in the conflict, and in preventing, tolerating,

and regulating certain acts on its own part, by its nationals, and by the belligerents. In response, it is the duty of the

belligerents to respect the territory and rights of neutral states. Those neutrality rights include the following:

The territory of the neutral state is inviolable. H. V. Art. 1. This prohibits any unauthorized entry into the

territory of the neutral state, its territorial waters, or the airspace over such areas by troops or instrumentalities of war.

Thus, belligerents are also specifically prohibited from moving troops or convoys of war munitions or supplies across the

territory of a neutral state. H. V. Art. 2. In consequence, the efforts of the neutral to resist, even by force, attempts to

violate its territory cannot be regarded as hostile acts by the offending belligerents. H. V. Art. 10. However, if the neutral

is unable, or fails to prevent such violations of its neutrality by the troops of one belligerent, that belligerent's enemy may

be justified in attacking those troops in neutral territory.

Belligerents are also prohibited from establishing radio communications stations in neutral territory to

communicate with their armed forces, or from using such facilities previously established before the outbreak of

hostilities for that purpose. H. V. Art. 3. However, a neutral state may permit the use of its own communications

facilities to transmit messages on behalf of the belligerents, so long as such usage does not lend assistance to the forces of

only one side of the conflict. Indeed, the neutral must ensure that the measure it takes in its status as a neutral state are

impartial as applied to all belligerents. H.V. Art. 9.

While a neutral state is under no obligation to allow passage of convoys or aircraft carrying the sick and

wounded of belligerents through its territory or airspace, it may do so without forfeiting its neutral status. However, the

neutral must exercise necessary control or restrictive measures concerning the convoys or medical aircraft, must ensure

that neither personnel nor material other than that necessary for the care of the sick and wounded is carried, and must

accord the belligerents impartial treatment. H. V. Art. 14; see GWS Art. 37. In particular, if the wounded and sick or

prisoners of war are brought into neutral territory by their captor, they must be detained and interned by the neutral state

so as to prevent them from taking part in further hostilities. GWS Art. 37.

The nationals of a neutral state are also considered as neutrals. H. V. Art. 16. However, if such neutrals

reside in occupied territory during the conflict, they are not entitled to claims different treatment, in general, from that

accorded the other inhabitants. They are likewise obliged to refrain from participation in hostilities, and must observe the

rules of the occupying power. Moreover, such neutral residents of occupied territory may be punished by the occupying

power for penal offenses to the same extent as nationals of the occupied nation. See GC Art. 4.

A national of a neutral state forfeits his neutral status if he commits hostile acts against a belligerent, or

commits acts in favor of a belligerent, such as enlisting in its armed forces. However, he is not to be more severely

treated by the belligerent against whom he has abandoned his neutrality than would be a national of the enemy state for

the same acts. H. V. Art. 17.

The United States has supplemented the above-described rules of international law concerning neutrality by

enacting federal criminal statutes that define offenses and prescribe penalties for violations against U.S. neutrality. Some

of these statutes are effective only during a war in which the U.S. is a declared neutral, while others are in full force and

effect at all times. See 18 U.S.C. 956-968; 22 U.S.C. 441-457, 461-465.

Impact of the United Nations Charter Regime on the Law of Neutrality

In the event of any threat to or breach of international peace and security, the United Nations Security Council

may call for action under Articles 39 through 42 of the UN Charter. In particular, the Security Council may make

recommendations, call for employment of measures short of force, or order forcible action to maintain or restore

international peace and security.

Chapter 2

Law of War

26
For a nation that is a members of the UN, these provisions of the Charter, if implemented, may qualify that

member nation's right to remain neutral in a particular conflict. For example, if a member nation is called on by the

Security Council, pursuant to Articles 42 and 43 of the Charter, to join in collective military action against an aggressor

state, that member nation loses its right to remain neutral. However, the member nation would actually lose its neutral

status only if it complied with the Security Council mandate and took hostile action against the aggressor.

COMPLIANCE WITH THE LAW OF WAR

The Role of Protecting Powers and the ICRC

The System of Protecting Powers. Common Articles 8 - 11 of the Geneva Conventions of 1949

7 provide for

application of the Conventions in time of international armed conflict "with the cooperation and under the scrutiny of the

Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict." The diplomatic institution of

protecting powers, which developed over the centuries independent of the Law of War, enables a neutral sovereign state,

through its designated diplomatic representatives, to safeguard the interests of a second state in the territory of a third

state. Such activities in wartime were first given formal recognition in the Geneva Prisoner of War Convention of 1929.

Such protecting power activities are especially valued when the second and third state do not have effective

diplomatic relations, which is traditionally the case in time of war between them. In particular, the protecting power

attends to the humanitarian interests of those citizens of the second state who are within the territory and under the control

of the third state, such as prisoners of war and civilian detainees.

Protecting power activities reached their zenith during World War II, as the limited number of neutral states acting as

protecting powers assumed a role as representatives not merely of particular belligerents, but rather as representatives of

the humanitarian interests of the world community. Article 5 of GP I seeks to supplement (not supplant) the protecting

power system embodied in the Geneva Conventions by imposing on the parties to the conflict the duty to implement that

system from the beginning of the conflict.

The Contributions and Role of the International Committee of the Red Cross (ICRC). Originally formed in

1863, the ICRC is an organization of Swiss citizens that has played a seminal role in the development of humanitarian

law applicable in armed conflict. In addition, during World War II, the ICRC supplemented the efforts of the protecting

powers, and undertook prodigious efforts on behalf of prisoners of war. Those efforts included the establishment of a

Central Prisoner of War Agency with 40 million index cards, the conduct of 11,000 visits to POW camps, and the

distribution of 450,000 tons of relief items.

The role of the ICRC as an impartial humanitarian organization is formally recognized in both common articles 9 -

11 of the Geneva Conventions

8

and in the Protocols. Since World War II, the protecting power system has not been

widely used, and the ICRC has stepped into the breach as a substitute for protecting powers in international conflicts,

under the auspices of common articles 9 and 10 of the Geneva Conventions

9

and Articles 5 and 6 of Protocol I.

With respect to non-international conflicts, common article 3 of the Geneva Conventions recognizes the prerogative

of the ICRC or other impartial humanitarian organizations to offer its services to the parties to the conflict.

GP II, however, fails to reaffirm this ICRC prerogative and recognizes, in Article 18, only the offer of services by

"relief societies located in the territory" of a party to the conflict.

Relations between U.S. Forces and the ICRC

Subject to essential security needs and other reasonable requirements, the ICRC must be permitted to visit PWs and

provide them certain types of relief. Typically, the U.S. will invite the ICRC to observe PW conditions as soon as

7 Articles 9 - 12 of the GC.

8 Articles 10 - 12 of the GC.

9 Articles 10 and 11 of the GC.

Chapter 2

Law of War

27
circumstances permit. Once on the scene, the ICRC will closely examine compliance with the Law of War and, in

particular, the Geneva Conventions concerning a broad range of issues.

Given his professional qualifications and specialized training in the Law of War, the judge advocate should serve as

the escort and liaison officer with the ICRC.10 This role is doctrinal, and stated in FM 71-100-2, INFANTRY DIVISION

OPERATIONS TACTICS, TECHNIQUES, AND PROCEDURES, page 6-28. The judge advocate can quickly identify and resolve

many Law of War issues before they become a problem for the commander. For those Law of War matters requiring

command decision, the judge advocate is best suited to provide advice to the commander and obtain timely responses.

These same skills are essential in dealing with ICRC observers. The judge advocate can best serve as the commander's

skilled advocate in discussions with the ICRC concerning the Law of War.

Both the commander and the judge advocate should recognize that the ICRC, as an impartial humanitarian

organization, is not a political adversary, eagerly watching for and reporting Law of War violations.11 Rather, it is capable

of providing assistance in a variety of ways. In recent conflicts, the ICRC assisted in making arrangements for the

transportation of the remains of dead enemy combatants and for repatriating PWs and civilian detainees. By maintaining

a close working relationship with ICRC representatives, the judge advocate receives a two-fold benefit. He is assisted in

identifying Law of War issues before they pose problems to the command, and he has access to additional legal resources

that may be used to resolve other Law of War matters.

The ICRC is also heavily involved in MOOTW, where it may be present in conjunction with numerous other

organizations and agencies. In the former Yugoslavia, Somalia, and Rwanda, for example, many international

organizations are or were engaged in humanitarian relief activities. Among the most significant is the UN High

Commissioner for Refugees (UNHCR). The list of private voluntary organizations (PVOs) and Nongovernment

organizations (NGOs) in the field is large; approximately 350 humanitarian relief agencies are registered with the U.S.

Agency for International Development (USAID).

REMEDIES FOR VIOLATIONS OF THE LAW OF WAR

U.S. Military and Civilian Criminal Jurisdiction

It is DoD policy that a member of the armed forces who commits an offense that qualifies as a war crime will be

charged under a specific article of the UCMJ. In the case of other persons subject to trial by general courts-martial for

violating the laws of war (UCMJ, art. 18), the charge shall be Violation of the Laws of War rather than a specific

UCMJ article.

The War Crimes Act of 1997 (18 U.S.C. § 2401) provides federal courts with jurisdiction to prosecute any person

inside or outside the U.S. for war crimes where a U.S. national or member of the armed forces is involved as an accused

or as a victim.

War Crimes are defined in the War Crimes Act as (1) grave breaches as defined in the Geneva Conventions of

1949 and any Protocol thereto to which the U.S. is a party; (2) violations of Articles 23, 25, 27, 28 of the Annex to the

Hague Convention IV; (3) violations of Common Article 3 of the Geneva Conventions of 1949 and any Protocol thereto

to which the U.S. is a party and deals with a non-international armed conflict; (4) violations of provisions of Protocol on

Prohibitions or Restrictions on the Use of Mines, Booby-Traps & Other devices (Protocol II as amended May, 1996)

when the U.S. is a party to such Protocol and the violation willfully kills or causes serious injury to civilians.

U.S. policy on application of the Law of War is stated in DoD Directive 5100.77 (DoD Law of War Program) and

further explained in CJCSI 5810.01 (12 Aug 96) (Implementation of the DoD Law of War Program). Except when

10 General Prugh (former TJAG) fulfilled the task of "interfacing" with the ICRC when he was the legal advisor to CDR, MACV in Vietnam. General

Prugh relates that during the early stages of Viet Nam, OTJAG concluded that the U.S. was involved in an Art 3, not Art 2, conflict. In June '65 the

situation had changed, and by Aug '65 a formal announcement was made that Art 2 now applied. Soon, ICRC delegates began to arrive, and it fell upon

the judge advocates to meet with the delegates. This role continued in operations in Grenada, Panama, Somalia, Haiti, and during the Gulf War. The

development of this liaison role was also apparent in Haiti, particularly in the operation of Joint Detention Facility.

11 It is essential to understand the neutrality principle of the ICRC. One must stay at arm's length from the delegates so not to risk harming their

relationships with the enemy. For example, ICRC personnel will meet with prisoners in private.

Chapter 2

Law of War

28
properly determined by the National Command Authority that it is not applicable, DoD Components will comply with

the Law of War in the conduct of all military operations and related activities in armed conflict, however such conflicts

are characterized. The CJCS SROE state that, U.S. Forces will always comply with the Law of Armed Conflict.

Command Responsibility. Commanders are legally responsible for war crimes committed by their subordinates

when any one of three circumstances applies:

(1) The commander ordered the commission of the act;

(2) The commander knew of the act, either before or during its commission, and did nothing to prevent or stop it;

or

(3) The commander should have known, through reports received by him or through other means, that troops or

other persons subject to his control [were] about to commit or [had] committed a war crime and he fail[ed] to take the

necessary and reasonable steps to insure compliance with the LOW or to punish violators thereof. (FM 27-10, para.

501).

Judge advocates must keep their commanders informed of their responsibilities concerning the investigation and

prosecution of war crimes. The commander must also be aware of his potential responsibility for war crimes committed

by his subordinates. CJSCI 5810.01A requires that legal advisers review all operation plans, concept plans, ROE, execute

orders, deployment orders, policies and directives to ensure compliance with the instruction, the DoD Law of War

Program, as well as domestic and international law. The CJCSI also requires integrating the reporting and investigative

requirement of the DoD Law of War Program into all appropriate policies, directives, and operation and concept plans.

Investigative Assets. Several assets are available to assist commanders investigating suspected violations of the LOW.

Investigations can be conducted with organic assets and legal support, using AR 15-6 or commanders inquiry

procedures. (Command regulations, drafted IAW DoD Directive 5100.77, should prescribe the manner and level of unit

investigation.) An investigation may also be conducted by the Criminal Investigation Division Command (CID). CID

has investigative jurisdiction over suspected war crimes in two instances. The first is when the suspected offense is one

of the violations of the UCMJ listed in Appendix B to AR 195-2, Criminal Investigation Activities. The second is when

the investigation is directed by HQDA (para. 3-3a(7), AR 195-2).

In addition to CID, and organic assets and legal support, a commander may have Reserve Component JAGSO teams

available to assist in the investigation. JAGSO teams perform judge advocate duties related to international law,

including the investigation and reporting of violations of the Law of War, the preparation for trials resulting from such

investigations, and the provision of legal advice concerning all operational law matters. Other available investigative

assets include the military police, counterintelligence personnel, and judge advocates.

Reports. WHEN IN DOUBT, REPORT. Report a reportable incident by the fastest means possible, through command

channels, to the responsible CINC. A reportable incident is a possible, suspected, or alleged violation of the law of war.

The reporting requirement should be stated not only in a 27 series regulation or legal appendix to an OPLAN or

OPORD, but also in the unit TACSOP or FSOP. Normally, an OPREP-3 report established in Joint Pub 1-03.6, JRS,

Event/Incident Reports, will be required.

Alleged violations of the law of war, whether committed by or against U.S. or enemy personnel, are to be promptly

reported, thoroughly investigated, and, where appropriate, remedied by corrective action.

Prevention of War Crimes. Commanders must take steps to ensure that members of their commands do not violate the

Law of War. The two principal means of effecting this goal are to recognize the factors which may lead to the

commission of war crimes, and to train subordinate commanders and troops to standard concerning compliance with the

law of war and proper responses to orders that violate the LOW.

Awareness of the factors that have historically led to the commission of war crimes allows the commander to take

preventive action. The following is a list of some of the factors that the commander and the judge advocate should

monitor in subordinate units.

Chapter 2

Law of War

29
(1) High friendly losses.

(2) High turnover rate in the chain of command.

(3) Dehumanization of the enemy (derogatory names or epithets).

(4) Poorly trained or inexperienced troops.

(5) The lack of a clearly defined enemy.

(6) Unclear orders.

(7) High frustration level among the troops.

Soldiers who receive unclear orders or who receive orders that clearly violate the LOW must understand how to react

to such orders. Accordingly, the judge advocate must ensure that soldiers receive instruction in this area. Troops who

receive unclear orders must insist on clarification. Normally, the superior issuing the unclear directive will make it clear,

when queried, that it was not his intent to commit a war crime. If the superior insists that his illegal order be obeyed,

however, the soldier has an affirmative legal obligation to disobey the order and report the incident to the next superior

commander, military police, CID, nearest judge advocate, or local inspector general.

International Criminal Tribunals

Violations of the Law of War, as crimes defined by international law, may also be prosecuted under the auspices of

international tribunals, such as the Nuremberg, Tokyo, and Manila tribunals established by the Allies to prosecute

German and Japanese war criminals after World War II. The formation of the United Nations has also resulted in the

exercise of criminal jurisdiction over war crimes by the international community, with the Security Council's creation of

the International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia.

Chapter 2

Law of War

30
APPENDIX A

LAW OF WAR CLASS OUTLINE

The topics and order of this outline match the topics and order of presentation of the main chapter

LAW OF WAR

I. LEGAL FRAMEWORK

A. Customary International Law

B. Hague Conventions

C. Geneva Conventions of 1949

D. Geneva Protocols I and II of 1977

E. Treaties

F. Regulations

II. THE PRINCIPLES

A. Military Necessity: targeting not prohibited by LOW and of a military advantage. Military Objective: persons,

places, or objects that make an effective contribution to military action.

B. Humanity or Unnecessary Suffering: minimize unnecessary suffering - incidental injury to people and

collateral damage to property.

C. Proportionality: loss of life and damage to property incidental to attacks must not be excessive in relation to

the concrete and direct military advantage expected to be gained.

D. Discrimination or Distinction: Discriminate or distinguish between combatants and non-combatants; military

objectives and protected people/protected places.

III. TARGETS

A. Persons

1. Combatants

a. Lawful Combatants: Geneva Convention Definition

(1) Under Responsible Command

(2) Distinctive Emblem Recognizable at a Distance

(3) Carry Arms Openly

Chapter 2, Appendix A

Law of War

31
(4) Abide by the Laws of War

b. Geneva Protocol I, Article 44 - Carry Arms Openly In the Attack

c. Unlawful Combatants

2. Noncombatants

a. Civilians

b. Out of Combat (hors de combat):

(1) Prisoners of War

(2) Wounded and Sick in the Field and at Sea

(3) Parachutist (as distinguished from paratrooper)

c. Medical Personnel

(1) Military - Exclusively engaged or auxiliary

(2) Civilian - GP I

(3) Chaplains

(4) Red Cross Societies and Recognized Relief Societies

(5) Relief Societies from Neutral Countries

(6) Civilian Medical and Religious Personnel

d. Cultural Property Protectors

e. Journalists

B. Places

1. Defended Places

2. Undefended Places

3. Natural Environment

4. Protected Areas - hospital zones, safety zones, cultural districts

C. Property

1. Military Objectives - Military Equipment, Buildings, Factories, Transportation, Communications

2. Protected Property

a. Civilian Property

b. Medical Establishments - Fixed and Mobile Hospitals

Chapter 2, Appendix A

Law of War

32
c. Medical Transport

d. Cultural Property - Dedicated to the Arts, Sciences, Religion, Education, History, Charity

3. Works and installations containing dangerous forces

4. Objects indispensable to the survival of civilians

D. Protective Emblems

1. Geneva

2. Hague

3. Works and Installations Containing Dangerous Forces

IV. WEAPONS

A. Legal Review

B. Small Arms Projectiles

C. Fragmentation

D. Landmines and Booby Traps

E. Incendiaries

F. Lasers

G. Chemical Weapons and Riot Control Agents

H. Herbicides

I. Biological

J. Nuclear

V. TACTICS

A. Psychological Operations

B. Ruses - Deception

1. Naval Tactics

2. Land Warfare - false armies, equipment, bases

3. Use of Enemy Property

a. Uniforms

b. Colors

Chapter 2, Appendix A

Law of War

33
c. Equipment

C. Use of Property - Confiscation, Seizure, Requisition, Contribution

D. Treachery and Perfidy - Feigning and Misuse

1. Wounds or Sickness

2. Surrender or Truce

3. Civilian or Noncombatant Status

4. UN and Neutral Emblems

5. Protective Emblems

6. Distress Signals

7. Booby Traps

E. Assassination

F. Espionage

G. Reprisals

H. Rules of Engagement

VI. WAR CRIMES

A. Definition of war crimes

B. Command responsibility

C. Investigative Assets

D. Reports

E. Prevention of War Crimes

F. Charging of War Crimes

VII. OTHER LEGAL ISSUES IN ARMED CONFLICT

A. War Trophies

B. Interaction with the International Committee of the Red Cross

VIII. CONCLUSION

A. Principles

B. Targets

Chapter 2, Appendix A

Law of War

34
C. Weapons

D. Tactics

Chapter 2, Appendix A

Law of War

35
APPENDIX B

TROOP INFORMATION

I. REASONS TO COMPLY WITH THE LOWEVEN IF ENEMY DOES NOT

A. Compliance ends the conflict more quickly. Mistreatment of EPWs may encourage the remaining enemy soldiers

to fight harder and resist capture. During Operation DESERT STORM, favorable treatment of Iraqi EPWs by

coalition forces helped end the war quickly because reports of such treatment likely encouraged massive

surrender by other Iraqi soldiers.

B. Compliance enhances public support of our military mission; violations of the LOW seriously reduce the support

that U.S. soldiers generally receive not only from the U.S. public but also from people in other countries (e.g.,

reports of misconduct in Vietnam reduced public support of military mission).

C. Compliance encourages reciprocal conduct by enemy soldiers. Mistreatment of EPWs by our soldiers may

encourage enemy soldiers to treat captured U.S. soldiers in the same manner.

D. Compliance not only accelerates termination of the conflict but it also reduces the waste of our resources in

combat and the costs of reconstruction after the conflict ends.

E. Compliance is required by law. LOW arises in large part from treaties that are part of our national law.

Violation of the LOW is a serious crime punishable by death in some cases.

II. SOLDIERS GENERAL RESPONSIBILITIES IN WARTIME

A. Carry out all lawful orders promptly and aggressively.

B. In rare case when an order seems unlawful, dont carry it out right away but dont ignore it either; instead, seek

immediate clarification of that order.

1. Soldiers may be held criminally responsible for any unlawful acts that they personally commit in time of

war. Since there is no statute of limitations on the prosecution of war crimes, soldiers may have to defend

themselves many years after the conflict ends.

2. If a soldier is court-martialed for carrying out an unlawful order, that soldier cannot normally defend himself

by claiming he was just following orders. As a result of attending this class and using common sense,

soldiers are expected to be able to recognize an unlawful order and take appropriate action.

C. Know:

1. The Soldiers Rules.

2. Forbidden targets, tactics, and techniques. (See related material above)

3. Rules regarding captured soldiers.

4. Rules for the protection of civilians and private property. (See related material above)

5. Obligations to prevent and report LOW violations.

Chapter 2, Appendix B

Law of War

36
III. THE SOLDIERS RULES

A. Fight only enemy combatants.

B. Do not harm enemies who surrenderdisarm them and turn them over to your superior.

C. Do not kill or torture EPW.

D. Collect and care for the wounded, whether friend or foe.

E. Do not attack medical personnel, facilities, or equipment.

F. Destroy no more than the mission requires.

G. Treat all civilians humanely.

H. Do not stealrespect private property and possessions.

I. Do your best to prevent violations of the law of warreport all violations to your superior.

IV. RULES REGARDING CAPTURED SOLDIERS

A. Handling Surrender of Enemy Soldiers.

1. Be cautious, follow unit procedures in allowing enemy soldiers to approach your position and surrender.

2. Waiving white flag may not mean surrender; it may simply mean that the enemy wants a brief cease-fire so

they can safely meet with us. Enemy may seek such a meeting to arrange surrender but meeting may also be

sought for other reasons (to pass a message from their commander to our headquarters or to arrange removal

of wounded from the battlefield).

3. Enemy soldiers must be allowed to surrender if they wish to do so. Any order not to accept surrender is

unlawful.

B. Treatment of Captured Soldiers on Battlefield.

1. Again, follow established unit procedures for the handling of EPWs (recall the 5 Ss process).

2. Recognize that soldiers have a duty to treat EPWs humanely. The willful killing, torture, or other inhumane

treatment of an EPW is a very serious LOW violationa grave breach. Other LOW violations are

referred to as simple breaches.

3. Note it is also forbidden to take EPWs personal property except to safeguard it pending their release or

movement elsewhere.

4. In addition, soldiers have certain affirmative duties to protect and otherwise care for EPWs in their custody.

Because this is often difficult in combat, must move EPWs to rear as soon as possible.

5. Certain captured enemy personnel are not technically EPWs but are rather referred to as retained

personnel. Such retained personnel include medical personnel and chaplains.

C. Your Rights and Responsibilities If Captured.

1. General. Note soldiers separate training on Code of Conduct, SERE, etc., provides additional information.

Chapter 2, Appendix B

Law of War

37
2. Rights as a Prisoner of War (POW). As discussed earlier, war prisoners are entitled to certain protection and

other care from their captors. Such care includes food, housing, medical care, mail delivery, and retention

of most of your personal property you carried when you were captured. Generally, the POW cannot waive

such rights.

3. Responsibilities as a POW.12

a. POWs must obey reasonable camp regulations.

b. Information: if asked, soldier must provide four items of information (name, rank, service number, and

DOB). Explain that such information needed by capturing country to fulfill reporting obligations under

international law.

c. Work. In addition, enlisted POWs may be compelled to work provided the work does not support the

enemys war effort. Also, POWs are entitled to payment for their work. Commissioned officer POWs

may volunteer to work, but may not be compelled to do so. NCO POWs may be compelled to perform

supervisory work.

V. OBLIGATIONS TO PREVENT AND REPORT LOW VIOLATIONS

A. Prevention. Soldiers not only must avoid committing LOW violations; they must also attempt to prevent

violations of the LOW by others.

B. Reporting Obligation. Soldiers must promptly report any actual or suspected violations of the LOW to their

superiors; if that is not feasible, soldiers report to other appropriate military officers (e.g., IG, Judge Advocate, or

Chaplain).

12 One attention getter is to have all students pull out their green military ID Card. Note that at the bottom of the front of the card, and at the top of the

back of the card, there is reference to the card serving as proper identification for purposes of the Geneva Convention on Prisoners of War.

Chapter 2, Appendix B

Law of War

38
CHAPTER 3

HUMAN RIGHTS

REFERENCES

1. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12

August 1949, 6 U.S.T. 3516.

2. Restatement (Third) of the Foreign Relations Law of the United States.

3. Universal Declaration of Human Rights, G.A. Res. 217 A (III), UN Doc. A/810 at 71

(1948).

To best understand human rights law, it may be useful to think in terms of obligation versus aspiration. This results

from the fact that human rights law exists in two forms: treaty law and customary international law.13 Human rights law

established by treaty generally only binds the state in relation to its own residents; human rights law based on customary

international law binds all states, in all circumstances. For official U.S. personnel (state actors in the language of

human rights law) dealing with civilians outside the territory of the United States, it is customary international law that

establishes the human rights considered fundamental, and therefore obligatory. Analysis of the content of this customary

international law is therefore the logical start point for this discussion

CUSTOMARY INTERNATIONAL LAW HUMAN RIGHTS: THE OBLIGATION

If a specific human right falls within the category of customary international law, it should be considered a

fundamental human right. As such, it is binding on U.S. forces during all overseas operations. This is because

customary international law is considered part of U.S. law,14 and human rights law operates to regulate the way state

actors (in this case the U.S. armed forces) treat all humans.15 If a human right is considered to have risen to the status of

customary international law, then it is considered binding on U.S. state actors wherever such actors deal with human

beings. According to the Restatement (Third) of Foreign Relations Law of the United States, international law is violated

by any state that practices, encourages, or condones

16 a violation of human rights considered customary international

law. The Restatement makes no qualification as to where the violation might occur, or against whom it may be directed.

Therefore, it is the customary international law status of certain human rights that renders respect for such human rights a

legal obligation on the part of U.S. forces conducting operations outside the United States, and not the fact that they may

be reflected in treaties ratified by the United States. Of course, this is a general rule, and judge advocates must look to

specific treaties, and any subsequent executing legislation, to determine if this general rule is inapplicable in a certain

circumstance.17 This is the U.S. position regarding perhaps the three most pervasive human rights treaties: the Covenant

on Civil and Political Rights, the Covenant on Economic, Social and Cultural Rights, and the Refugee Convention and

Refugee Protocol.

Unfortunately, for the military practitioner there is no definitive source list of those human rights considered by the

United States to fall within this category of fundamental human rights. As a result, the judge advocate must rely on a

variety of sources to answer this question. Among these sources, the most informative is the Restatement (Third) of

Foreign Relations Law of the United States. According to the Restatement, the United States accepts the position that

13 See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, at § 701.

14 See the Paquete Habana The Lola, 175 U.S. 677 (1900); see also supra note 13 at § 111.

15 Supra note 13, at §701.

16 Supra note 13, at §702.

17 According to the Restatement, as of 1987, there were 18 treaties falling under the category of Protection of Persons, and therefore considered

human rights treaties. This does not include the Universal Declaration of Human Rights, or the United Nations Charter, which are considered

expressions of principles, and not binding treaties.

Chapter 3

Human Rights

39
certain fundamental human rights fall within the category of customary international law, and a state violates international

law when, as a matter of policy, it practices, encourages, or condones any of the following:

1. Genocide,

2. Slavery or slave trade,

3. Murder or causing the disappearance of individuals,

4. Torture or other cruel, inhumane, or degrading treatment or punishment,

5. Prolonged arbitrary detention,

6. Systematic racial discrimination, or

7. A consistent pattern of gross violations of internationally recognized human rights.

18

Although international agreements, declarations, and scholarly works suggest that the list of human rights binding

under international law is far more expansive than this list, the Restatements persuasiveness is reflected by the authority

relied upon by the drafters of the Restatement to support their list. Through the Reporters Notes, the Restatement details

these sources, focusing primarily on U.S. court decisions enunciating the binding nature of certain human rights, and

federal statutes linking international aid to respect by recipient nations for these human rights.

19 These two sources are

especially relevant for the military practitioner, who must be more concerned with the official position of the United

States than with the suggested conclusions of legal scholars. This list is reinforced when it is combined with the core

provisions of the Universal Declaration of Human Rights

20 (one of the most significant statements of human rights law,

some portions of which are regarded as customary international law21), and article 3 common to the four Geneva

Conventions of 1949 (which although a component of the law of war, is used as a matter of Department of Defense Policy

as both a yardstick against which to assess human rights compliance by forces we support,22 and as the guiding source of

soldier conduct across the spectrum of conflict23). By cross-leveling these sources, it is possible to construct an

amalgamated list of those human rights judge advocates should consider customary international law. These include the

prohibition against any state policy that results in the conclusion that the state practices, encourages, or condones:

1. Genocide,

2. Slavery or slave trade,

3. Murder of causing the disappearance of individuals,

4. Torture or other cruel, inhuman, or degrading treatment or punishment,

5. All violence to life or limb,

18 Supra note 13, at §702.

19 Supra note 13, at §702, Reporters Notes.

20 G.A. Res. 217A (III), UN Doc. A/810, at 71 (1948).

21 RICHARD B. LILLICH & FRANK NEWMAN, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW AND POLICY 65-67 (1979); RICHARD B. LILLICH,

INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW, POLICY, AND PRACTICE, 117-127 (2d. ed. 1991); Filartiga v. Pena-Irala, 630 F.2d 876, 882-83

(2d Cir. 1980). Other commentators assert that only the primary protections announced within the Declaration represent customary law. These

protections include the prohibition of torture, violence to life or limb, arbitrary arrest and detention, and the right to a fair and just trial (fair and public

hearing by an impartial tribunal), and right to equal treatment before the law. GERHARD VON GLAHN, LAW AMONG NATIONS 238 (1992) [hereinafter

VON GLAHN].

22 See DEPT OF THE ARMY REG. 12-15, JOINT SECURITY ASSISTANCE TRAINING, para. 13-3.

23 See DoD DIR. 5100.77; see also CJCS INSTR. 5810.01A.

Chapter 3

Human Rights

40
6. Taking of hostages,

7. Punishment without fair and regular trial,

8. Prolonged arbitrary detention,

9. Failure to care for and collect the wounded and sick,24

10. Systematic racial discrimination, or

11. A consistent pattern of gross violations of internationally recognized human rights.

A judge advocate must also recognize that state practice is a key component to a human rights violation. What

amounts to state practice is not clearly defined by the law. However, it is relatively clear that acts which directly harm

individuals, when committed by state agents, fall within this definition.25 This results in what may best be understood as a

negative human rights obligationto take no action that directly harms individuals. The proposition that U.S. forces

must comply with this negative obligation is not inconsistent with the training and practice of U.S. forces. For

example, few would assert that U.S. forces should be able to implement plans and policies which result in cruel or

inhumane treatment of civilians. However, the proposition that the concept of practicing, encouraging, or condoning

human rights violations results in an affirmative obligationto take affirmative measures to prevent such violations by

host nation forces or alliesis more controversial. How aggressively, if at all, must U.S. forces endeavor to prevent

violations of human rights law by third parties in areas where such forces are operating?

This is perhaps the most challenging issue related to the intersection of military operations and fundamental human

rights: what constitutes encouraging or condoning violations of human rights? Stated differently, does the obligation

not to encourage or condone violations of fundamental human rights translate into an obligation on the part of U.S. forces

to intervene to protect civilians from human rights violations inflicted by third parties when U.S. forces have the means to

do so? The answer to this question is probably no, despite plausible arguments to the contrary. For the military

practitioner, the undeniable reality is that resolution of the question of the scope of U.S. obligations to actively protect

fundamental human rights rests with the National Command Authority, as reflected in the CJCS Standing Rules of

Engagement. This resolution will likely depend on a variety of factors, to include the nature of the operation, the

expected likelihood of serious violations, and perhaps most importantly, the existence of a viable host nation authority.

Potential responses to observed violations of fundamental human rights include reporting through command

channels, informing Department of State personnel in the country, increasing training of host nation forces in what human

rights are and how to respond to violations, documenting incidents and notifying host nation authorities, and finally,

intervening to prevent the violation. The greater the viability of the host nation authorities, the less likelihood exists for

this last option. However, judge advocates preparing to conduct an operation should recognize that the need to seek

guidance, in the form of the mission statement or rules of engagement, on how U.S. forces should react to such situations,

is absolutely imperative when intelligence indicates a high likelihood of confronting human rights violations. This

imperative increases in direct correlation to the decreasing effectiveness of host nation authority in the area of operations.

HUMAN RIGHTS TREATIES: THE ASPIRATION

The original focus of human rights law must be re-emphasized. Understanding this original focus is essential to

understand why human rights treaties, even when signed and ratified by the United States, fall within the category of

aspiration instead of obligation. That focus was to protect individuals from the harmful acts of their own

governments.26 This was the groundbreaking aspect of human rights law: that international law could regulate the way

24 This provision must be understood within the context from which it derives. This is not a component of the Restatement list, but instead comes from

Article 3 of the Geneva Conventions. As such, it is a right intended to apply to a conflict scenario. As such, the JA should recognize that the

essence of this right is not to care for every sick and wounded person encountered during every military operation, but relates to wounded and sick in

the context of some type of conflict. As such, it is legitimate to consider this obligation limited to those individuals whose wound or sickness is directly

attributable to U.S. operations. While extending this protection further may be a legitimate policy decision, it should not be regarded as obligatory.

25 See supra note 13, Reporters Notes.

26 See supra note 13 and accompanying text.

Chapter 3

Human Rights

41
a government treated the residents of its own state. Human rights law was not originally intended to protect individuals

from the actions of any government agent they encountered. This is partly explained by the fact that historically, other

international law concepts provided for the protection of individuals from the cruel treatment of foreign nations.

27

It is the original scope of human rights law that is applied as a matter of policy by the United States when analyzing

the scope of human rights treaties. In short, the United States interprets human rights treaties to apply to persons living in

the territory of the United States, and not to any person with whom agents of our government deal in the international

community.28 This theory of treaty interpretation is referred to as non-extraterritoriality.

29 The result of this theory is

that these international agreements do not create treaty based obligations on U.S. forces when dealing with civilians in

another country during the course of a contingency operation. This distinction between the scope of application of

fundamental human rights, which have attained customary international law status, versus the scope of application of noncore treaty based human rights, is a critical aspect of human rights law judge advocates must grasp.

While the non-extraterritorial interpretation of human rights treaties is the primary basis for the conclusion that these

treaties do not bind U.S. forces outside the territory of the U.S., judge advocates must also be familiar with the concept of

treaty execution. According to this treaty interpretation doctrine, although treaties entered into by the U.S. become part

of the supreme law of the land,

30 some are not enforceable in U.S. courts absent subsequent legislation or executive

order to execute the obligations created by such treaties.31

27 See supra note 13 at Part VII, Introductory Note.

28 While the actual language used in the scope provisions of such treaties usually makes such treaties applicable to all individuals subject to [a states]

jurisdiction the United States interprets such scope provisions as referring to the United States and its territories and possessions, and not any area

under the functional control of United States armed forces. This is consistent with the general interpretation that such treaties do not apply outside the

territory of the United States. See supra note 13 at §322(2) and Reporters Note 3; see also CLAIBORNE PELL REPORT ON THE INTERNATIONAL

COVENANT ON CIVIL AND POLITICAL RIGHTS, S. EXEC. COC. NO. 102-23 (Cost Estimate) (This Congressional Budget Office Report indicated that the

Covenant was designed to guarantee rights and protections to people living within the territory of the nations that ratified it).

29 See Theodore Meron, Extraterritoriality of Human Rights Treaties, 89 AM. J. INTL L. 78-82 (1995). See also CENTER FOR LAW AND MILITARY

OPERATIONS, THE JUDGE ADVOCATE GENERALS SCHOOL, UNITED STATES ARMY, LAW AND MILITARY OPERATIONS IN HAITI, 1994-1995--LESSONS

LEARNED FOR JUDGE ADVOCATES 49 (1995) [hereinafter CLAMO HAITI REPORT], citing the human rights groups that mounted a defense for an Army

captain that misinterpreted the Civil and Political Covenant to create an affirmative obligation to correct human rights violations within a Haitian Prison.

Lawyers Committee for Human Rights, Protect or Obey: The United States Army versus CPT Lawrence Rockwood 5 (1995) (reprinting an amicus

brief submitted in opposition to a prosecution pretrial motion).

30 U.S. CONST. art VI. According to the Restatement, international agreements are law of the United States and supreme over the law of the several

states. Supra note 13, at §111. The Restatement Commentary states the point even more emphatically: [T]reaties made under the authority of the

United States, like the Constitution itself and the laws of the United States, are expressly declared to be supreme Law of the Land by Article VI of the

Constitution. Id. at cmt. d.

31 The Restatement Commentary indicates:

In the absence of special agreement, it is ordinarily for the United States to decide how it will carry out its international

obligations. Accordingly, the intention of the United States determines whether an agreement is to be self-executing in the United

States or should await implementation by legislation or appropriate executive or administrative action. If the international

agreement is silent as to its self-executing character and the intention of the United States is unclear, account must be taken of any

statement by the President in concluding the agreement or in submitting it to the Senate for consent or to the Congress as a whole

for approval, and any expression by the Senate or the Congress in dealing with the agreement. After the agreement is concluded,

often the President must decide in the first instance whether the agreement is self-executing, i.e., whether existing law is adequate

to enable the United States to carry out its obligations, or whether further legislation is required . . . Whether an agreement is to be

given effect without further legislation is an issue that a court must decide when a party seeks to invoke the agreement as law . . .

Some provisions of an international agreement may be self-executing and others non-self-executing. If an international

agreement or one of its provisions is non-self-executing, the United States is under an international obligation to adjust its laws

and institutions as may be necessary to give effect to the agreement.

Supra note 13, at cmt h. See also Foster v. Neilson, 27 U.S. (2 Pet.) 253, 254 (1829). In Foster, the Court focused upon the Supremacy Clause of the

United States Constitution and found that this clause reversed the British practice of not judicially enforcing treaties, until Parliament had enacted

municipal laws to give effect to such treaties. The Court found that the Supremacy Clause declares treaties to be the supreme law of the land and directs

courts to give them effect without waiting for accompanying legislative enactment. The Court, however, conditioned this rule by stating that only

treaties that operate of themselves merit the right to immediate execution. This qualifying language is the source of todays great debate over whether or

not treaties are self-executing; see also DEPT OF ARMY, PAMPHLET 27-161-1, LAW OF PEACE, VOLUME I para. 8-23 (1 September 1979) [hereinafter

DA PAM 27-161-1], which states:

[w]here a treaty is incomplete either because it expressly calls for implementing legislation or because it calls for the performance

of a particular affirmative act by the contracting states, which act or acts can only be performed through a legislative act, such a

Chapter 3

Human Rights

42
This self-execution doctrine relates primarily to the ability of a litigant to secure enforcement for a treaty provision

in U.S. courts.32 However, the impact on whether a judge advocate should conclude that a treaty creates a binding

obligation on U.S. forces is potentially profound. First, there is an argument that if a treaty is considered non-selfexecuting, it should not be regarded as creating such an obligation.33 More significantly, once a treaty is executed, it is the

subsequent executing legislation or executive order, and not the treaty provisions, that is given effect by U.S. courts, and

therefore defines the scope of U.S. obligations under our law.34

The U.S. position regarding the human rights treaties discussed above is that the intention of the United States

determines whether an agreement is to be self-executing or should await implementing legislation.

35 Thus, the United

States position is that its unilateral statement of intent, made through the vehicle of a declaration during the ratification

process, is determinative of the intent of the parties. Accordingly, if the United States adds such a declaration to a treaty,

the declaration determines the interpretation the United States will apply to determining the nature of the obligation.

36

The bottom line is that compliance with international law is not a suicide pact nor even unreasonable. Its observance,

for example, does not require a military force on a humanitarian mission within the territory of another nation to

immediately take on all the burdens of the host nation government. A clear example of this rule is the conduct of U.S.

forces Operation UPHOLD DEMOCRACY in Haiti regarding the arrest and detention of civilian persons. The failure of

the Cedras regime to adhere to the minimum human rights associated with the arrest and imprisonment of its nationals

served as part of the United Nations justification for sanctioning the operation. Accordingly, the United States desired to

do the best job it could in correcting this condition, starting by conducting its own detention operations in full compliance

with international law. The United States did not, however, step into the shoes of the Haitian government, and did not

become a guarantor of all the rights that international law requires a government to provide its own nationals.

Along this line, the Joint Task Force (JTF) lawyers first noted that the Universal Declaration of Human Rights does

not prohibit detention or arrest, but simply protects civilians from the arbitrary application of these forms of liberty

denial.

37 The JTF could detain civilians who posed a legitimate threat to the force, its mission, or other Haitian civilians.38

Once detained, these persons become entitled to a baseline of humanitarian and due process protections. These

protections include the provision of a clean and safe holding area; rules and conduct that would prevent any form of

treaty is for obvious reasons not self-executing, and subsequent legislation must be enacted before such a treaty is enforceable. . .

On the other hand, where a treaty is full and complete, it is generally considered to be self-executing. . .

32 See supra note 13, at cmt h.

33 There are several difficulties with this argument. First, it assumes that a U.S. court has declared the treaty non-self-executing, because absent such a

ruling, the non-self-executing conclusion is questionable: [I]f the Executive Branch has not requested implementing legislation and Congress has not

enacted such legislation, there is a strong presumption that the treaty has been considered self-executing by the political branches, and should be

considered self-executing by the courts. Supra note 13, at §111, Reporters Note 5. Second, it translates a doctrine of judicial enforcement into a

mechanism whereby U.S. state actors conclude that a valid treaty should not be considered to impose international obligations upon those state actors, a

transformation that seems to contradict the general view that failure to enact executing legislation when such legislation is needed constitutes a breach of

the relevant treaty obligation. [A] finding that a treaty is not self-executing (when a court determines there is not executing legislation) is a finding that

the United States has been and continues to be in default, and should be avoided. Id.

34 [I]t is the implementing legislation, rather than the agreement itself, that is given effect as law in the United States. Id. Perhaps the best recent

example of the primacy of implementing legislation over treaty text in terms of its impact on how U.S. state actors interpret our obligations under a

treaty was the conclusion by the Supreme Court of the United States that the determination of refugee status for individuals fleeing Haiti was dictated

not pursuant to the Refugee Protocol standing alone, but by the implementing legislation for that treaty  the Refugee Act. United States v. Haitian

Centers Council, Inc. 113 S.Ct. 2549 (1993).

35 See supra note 13 at § 131.

36 See supra note 13 at § 111, cmt.

37 Common article 3 does not contain a prohibition of arbitrary detention. Instead, its limitation regarding liberty deprivation deals only with the

prohibition of extrajudicial sentences. Accordingly, the judge advocates involved in Operation Uphold Democracy and other recent operations looked

to the customary law and the Universal Declaration of Human Rights as authority in this area. It is contrary to these sources of law and United States

policy to arbitrarily detain people. Judge advocates, sophisticated in this area of practice, explained to representatives from the International Committee

of the Red Cross the distinction between the international law used as guidance, and the international law that actually bound the members of the

Combined Joint Task Force (CJTF). More specifically, these judge advocates understood and frequently explained that the third and fourth Geneva

Conventions served as procedural guidance, but the Universal Declaration (to the extent it represents customary law) served as binding law.

38 The newly arrived military forces (into Haiti) had ample international legal authority to detain such persons. Deployed judge advocates relied upon

Security Council Resolution 940 and article 51 of the United Nations Charter. See CLAMO HAITI REPORT, supra note 29, at 63.

Chapter 3

Human Rights

43
physical maltreatment, degrading treatment, or intimidation; and rapid judicial review of their individual detention.39 The

burden associated with fully complying with the letter and spirit of the Universal Declaration of Human Rights

40

permitted the United States to safeguard its force, execute its mission, and reap the benefits of good press.

41

Accurate articulation of these doctrines of non-extraterritoriality and non-self-execution is important to ensure

consistency between United States policy and practice. However, a judge advocate should bear in mind that this is

background information, and that it is the list of human rights considered customary international law that is most

significant in terms of policies and practices of U.S. forces. The judge advocate must be prepared to advise his or her

commander and staff that many of the rights reflected in human rights treaties and in the Universal Declaration,

although not binding as a matter of treaty obligation, are nonetheless binding on U.S. forces as a matter of customary

international law.

39 See supra note 29 at 64-65.

40 Reprinted for reference purposes in the Appendix is the Universal Declaration of Human Rights. This is intended to serve as a resource for judge

advocate to utilize as a source of law to analogize from when developing policies to implement the customary international law human rights

obligations set out above.

41 The judge advocates within the 10th Mountain Division found that the extension of these rights and protections served as concrete proof of the

establishment of institutional enforcement of basic humanitarian considerations. This garnered good press by demonstrating to the Haitian people,

the human rights groups, and the International Committee of the Red Cross (ICRC) that the U.S. led force was adhering to the Universal Declaration

principles. See OPERATION UPHOLD DEMOCRACY, 10TH MOUNTAIN DIVISION, OFFICE OF THE STAFF JUDGE ADVOCATE MULTINATIONAL FORCE HAITI

AFTER-ACTION REPORT 7-9 (March 1995) [10TH MOUNTAIN AAR].

Chapter 3

Human Rights

44
APPENDIX

UNIVERSAL DECLARATION OF HUMAN RIGHTS

Preamble

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is

the foundation of freedom, justice, and peace in the world.

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of

mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from

fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and

oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the

dignity and worth of the human person and in the equal rights of men and women and have determined to promote social

progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of

universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this

pledge,

Now, therefore,

The General Assembly

Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all

nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall

strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national

and international, to secure their universal and effective recognition and observance, both among the peoples of Member

States themselves and among the peoples of territories under their jurisdiction.

Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should

act towards one another in a spirit of brotherhood.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinctions of any kind, such as

race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country

territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of

sovereignty.

Article 3

Everyone has the right to life, liberty and the security of person.

Article 4

No one shall be held in slavery or servitude, slavery and the slave trade shall be prohibited in all their forms.

Chapter 3, Appendix

Human Rights

45
Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6

Everyone has the right to recognition everywhere as a person before the law.

Article 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to

equal protection against any discrimination in violation of this Declaration and against any incitement to such

discrimination.

Article 8

Everyone has the right to effective remedy by the competent national tribunals for acts violating the fundamental rights

granted him by the constitution or by law.

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the

determination of his rights and obligations and of any criminal charge against him.

Article 11

1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in

public trial at which he has had all the guarantees necessary for his defence.

2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal

offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed

than the one that was applicable at the time the penal offence was committed.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon

his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13

1. Everyone has the right to freedom of movement and residence within the borders of each state.

2. Everyone has the right to leave any country, including his own, and to return to his country.

Article 14

1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.

2. This right may not be invoked in the case of prosecutions genuinely arising from nonpolitical crimes or from acts

contrary to the purposes and principles of the United Nations.

Chapter 3, Appendix

Human Rights

46
Article 15

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16

1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to

found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.

3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17

1. Everyone has the right to own property alone as well as in association with others.

2. No one shall be arbitrarily deprived of his property.

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion

or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief

in teaching, practice, worship and observance.

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without

interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

2. No one may be compelled to belong to an association.

Article 21

1. Everyone has the right to take part in the government of his country, directly or through freely chosen representative.

2. Everyone has the right of equal access to public service in his country.

3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and

genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free

voting procedures.

Article 22

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and

international co-operation and in accordance with the organization and resources of each State, of the economic, social,

and cultural rights indispensable for his dignity and the free development of his personality.

Chapter 3, Appendix

Human Rights

47
Article 23

1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to

protection against unemployment.

2. Everyone, without any discrimination, has the right to equal pay for equal work.

3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an

existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

4. Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with

pay.

Article 25

1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family,

including food, clothing, housing and medical care and necessary social services, and the right to security in the event of

unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of

wedlock, shall enjoy the same social protection.

Article 26

1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages.

Elementary education shall be compulsory. Technical and professional education shall be made generally available and

higher education shall be equally accessible to all on the basis of merit.

2. Education shall be directed to the full development of the human personality and to the strengthening of respect for

human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations,

racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

3. Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in

scientific advancement and its benefits.

2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or

artistic production of which he is the author.

Article 28

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can

be fully realized.

Article 29

1. Everyone has duties to the community in which alone the free and full development of his personality is possible.

2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law

solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just

requirements of morality, public order and the general welfare in a democratic society.

Chapter 3, Appendix

Human Rights

48
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any

activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Chapter 3, Appendix

Human Rights

49
Chapter 3

, Appendix

Human Rights

50
CHAPTER 4

LAW OF WAR IN MILITARY OPERATIONS OTHER THAN WAR42

REFERENCES

1. Dept of Defense Directive 5100.77, DoD Law of War Program, 9 December 1998.

2. Chairman of the Joint Chiefs of Staff Instruction 5810.01A, Implementation of the DoD

Law of War Program, 27 August 1999.

Military Operations Other Than War (MOOTW)

43 is the doctrinal term used to describe the broad range of military

operations which fall outside the traditional definition of armed conflict. These diverse operations do not trigger the

application of the traditional law of war regimes because of a lack of the legally requisite armed conflict needed to trigger

such regimes. This resulting lack of binding traditional legal authority for the resolution of myriad issues during

MOOTW has led judge advocates to resort to other sources of law. These sources start with binding customary

international law based human rights which must be respected by United States Forces at all times. Other sources include

host nation law, conventional law, and law drawn by analogy from various applicable sources.

STRUCTURE FOR ANALYSIS

The process of analyzing legal issues and applying various sources of law during a military operation entails four

essential steps: 1) define the nature of the issue; 2) ascertain what binding legal obligations, if any, apply; 3) identify any

gaps remaining in the resolution of the issue after application of binding authority; 4) fill these gaps by application of

non-binding sources of law as a matter of policy.

When attempting to determine what laws apply to American conduct in an area of operations, a specific knowledge

of the exact nature of the operation becomes immediately necessary.44 For example, in the operations within the Former

Yugoslavia, the United States led Implementation Force (IFOR) struggled with defining the exact parameters of its

mission. In a pure legal sense, the IFOR is required or authorized (maybe this distinction is where the problem lies) to

implement Annex 1-A of the Dayton Accord. Yet the Accord seems to require the following IFOR missions: (1) prevent

interference with the movement of civilian population, refugees, and displaced persons, and respond appropriately to

deliberate violence to life and person, and (2) ensure that the Parties provide a safe and secure environment for all

persons in their respective jurisdictions, by maintaining civilian law enforcement agencies operating in accordance with

internationally recognized standards and with respect for internationally recognized human rights and fundamental

freedoms.

45

42 For greater detail see Major Richard M. Whitaker, Civilian Protection Law in Military Operations: An Essay, Army Law., Nov. 1996.

43 DEPT OF ARMY, FIELD MANUAL 100-5, OPERATIONS chs. 2 & 13 (14 June 1993) [hereinafter FM 100-5].

44 The importance of clear mandates and missions was pointed out as a critical lesson learned from the recent Somalia operations. A clear mandate

shapes not only the mission (the what) that we perform, but the way we carry it out (the how). See Kenneth Allard, Institute for National Strategic

Studies- Somalia Operations: Lessons Learned (1995), at 22. Determining the authorizing source of the mission is also crucial when determining who

is fiscally responsible for different aspects of the mission.

45 See Dayton Accord, at Annex 1A, arts. I and VI. Operation RESTORE HOPE provides another example of the important relationship between the

mission statement and the legal obligation owed to the civilian population. The initial mission statement for RESTORE HOPE articulated in United

Nations Resolution 794 granted the United States the authority to take all necessary means to establish a secure environment in which relief efforts

could be coordinated. At this point the obligation to local civilians was clear. The mission was not to assume an active role in protecting the civilians,

but instead, to provide security for food and supply transfer. Once the mission was handed over to the United Nations, this mission was permitted to

mutate and the obligation to civilians became less clear. The U.S. led force referred to as the Unified Task Force (UNITAF) conducted narrowly

prescribed relief operations from December 9, 1992 to May 4, 1993. On May 4, 1993, UNITAF terminated operations and responsibility for the

operation was passed to the United Nations in Somalia (UNOSOM). In March and June of 1993, the United Nations passed resolutions 814 and 837,

respectively. These two resolutions dramatically enlarged the scope of the United Nations Operation in Somalia (UNOSOM).

Chapter 4

LOW in MOOTW

51
In reality, the IFOR, realizing the breadth of a mission with such responsibilities, did not formally acknowledge the

obligation to execute either of these mission elements.46 The result was that the forces on the ground did not have a clear

picture of the mission. Fortunately, judge advocates, adept at the difficulty of these type situations, have learned that in

the absence of well-defined mission statements, they must gain insight into the nature of the mission by turning to other

sources of information.

This information might become available by answering several important questions that shed light on the United

States intent regarding any specific operation. These include: (1) what has the President (or his representative) said to

the American People regarding the operation;47 (2) if the operation is to be executed pursuant to a United Nations

mandate, what does this mandate authorize; and (3) if the operation is based upon use of regional organization forces,48

what statement or directives have been made by that organization?

After gaining the best possible understanding of the missions objective, the operational lawyer must then go about

the business of deciding what bodies of law should be relied upon to respond to various issues. The judge advocate should

look to the foregoing considerations and the operational environment and determine what law establishes legally

mandated obligations, and then utilize the law by analogy. Thereafter, he should move to succeeding tiers and

determine their applicability. Finally, after considering the application of the regimes found within each of the four tiers,

the judge advocate must realize that as the operation changes, the potential application of the regulation within each of the

four tiers must be constantly reassessed.

SOURCES OF LAW

FUNDAMENTAL HUMAN RIGHTS

Fundamental human rights are customary international law based rights, obligatory in nature, and therefore binding

on the conduct of state actors at all times. These protections represent the evolution of natural or universal law

recognized and commented upon by leaders and scholars for thousands of years.49 The principle behind this body of law

is that these laws are so fundamental in nature that all human beings are entitled to receive recognition and respect of

them when in the hands of state actors.

Besides applying to all people, the most critical aspect of these rights is that they are said to be non-derogable, that is,

they cannot be suspended under any circumstances. As the minimum yardstick

50 of protections to which all persons are

entitled, this baseline tier of protections never changes. For an extensive discussion of the United States position on the

scope and nature of fundamental human rights obligations, see the Human Rights Chapter of this Handbook.

HOST NATION LAW

After considering the type of baseline protections represented by fundamental human rights law, the military leader

must be advised in regard to the other bodies of law that he should integrate into his planning and execution phases. This

leads to consideration of host nation law. Because of the nature of most MOOTW missions, judge advocates must

understand the technical and pragmatic significance of host nation law within the area of operations. Although in theory

46 See John Pomfret, Perry Says NATO Will Not Serve As Police Force in Bosnia Mission, WASH. POST, January 4, 1996, at D-1. See also Office of

Assistant Secretary of Defense (Public Affairs), Operation Joint Endeavor Fact Sheet, Dec. 7, 1995), available at Internet:

http://www.dtic/bosnia/fs/bos-004.html (reporting that the IFOR will not act as a police force, but noting that IFOR will have authority to detain any

persons who interfere with the IFOR mission or those individuals indicted for war crimes, although they will not track them down).

47 Similar sources are (1) the justifications that the President or his cabinet members provide to Congress for the use of force or deployment of troops

and (2) the communications made between the United States and the countries involved in the operation (to include the state where the operation is to

occur).

48 Regional organizations such as North Atlantic Treaty Organization (NATO), Organization of American States (OAS), and the Organization of African

Unity (OAU).

49 See Restatement (Third) of the Foreign Relations Law of the United States, at § 701, cmt. [hereinafter Restatement].

50 The International Court of Justice chose this language when explaining its view of the expanded application of the type of protections afforded by

article 3, common to the four Geneva Conventions. See Nicar. v. U.S., 1986 I.C.J. 14 (June 27), reprinted in 25 I.L.M. 1023, 1073.

Chapter 4

LOW in MOOTW

52
understanding the application of host nation law during military operations is perhaps the simplest component, in practice

it is perhaps the most difficult.

Judge advocates must recognize the difference between understanding the technical applicability of host nation law,

and the application of that law to control the conduct of U.S. forces during the course of operations. In short, the

significance of this law declines in proportion to the movement of the operation toward the characterization of conflict.

Judge advocates should understand that U.S. forces enter other nations with a legal status that exists anywhere along a

notional legal spectrum. The right end of that spectrum is represented by invasion followed by occupation. The left end

of the spectrum is represented by tourism.

51 So, in a nutshell, our forces enter a nation either as invaders or tourists or

somewhere between the two statuses.

When the entrance can be described as invasion, the legal obligations and privileges of the invading force are based

upon the list of straightforward rules found within the Law of War. As the analysis moves to the left end of the spectrum

and the entrance begins to look more like tourism, host nation law becomes increasingly important, and applies absolutely

at the far end of the spectrum. For example, the permissive entry of the 10th Mountain Division into Haiti to execute

Operation UPHOLD DEMOCRACY, probably represents the mid-point along the foregoing spectrum. Although the

force entered with permission, it was not the welcomed guest of the de facto government. Accordingly, early decisions

regarding the type of things that could be done to maintain order52 had to be analyzed in terms of the coalition forces

legal right to intervene in the matters of a sovereign state, based in part on host nation law.53

The weapons search and confiscation policy instituted during the course of Operation UPHOLD DEMOCRACY is a

clear example of this type of deference to host nation law.54 The coalition forces adopted an approach that demonstrated

great deference for the Haitian Constitutions guarantee to each Haitian citizen the right to armed self-defence, within

the bounds of his domicile.

55

Keep in mind, it is important to note that Public International Law assumes a default setting.

56 The classical rule

provides that it is well settled that a foreign army permitted to march through a friendly country, or to be stationed in it,

by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of that place.

57 The

modern rule, however, is that in the absence of some type of immunity, forces that find themselves in another nations

territory must comply with that nations law.

58 This makes the circumstances that move military forces away from this

51 In essence, the category of MMOOTW referred to as stability operations frequently place our military forces in a law enforcement type role. Yet,

they must execute this role without the immunity from local law that traditional armed conflict grants. In fact, in many cases, their authority may be

analogous to the authority of United States law enforcement officers in the territory of another state. When operating within another states territory, it

is well settled that law enforcement officers of the United States may exercise their functions only (a) with the consent of the other state ... and (b) if in

compliance with the laws of the other state.... See RESTATEMENT, supra note 49, at §§ 433 and 441.

52 United Nations Security Council Resolution 940 mandated the use of all necessary means to establish a secure and stable environment. Yet even

this frequently cited source of authority was balanced with host nation law. See CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE

GENERALS SCHOOL, U.S. ARMY, LAW AND MILITARY OPERATIONS IN HAITI, 1994-1995 - LESSONS LEARNED FOR JUDGE ADVOCATES 76 (1995)

[hereinafter CLAMO HAITI REPORT].

53 Id. at 77. Task Force lawyers advised the military leadership that since President Aristide (as well as Lieutenant General Cedras - the de facto leader)

had consented to the entry, Haitian law would seem to bear upon coalition force treatment of Haitian civilians.

54 See Operation Uphold Democracy, 10th Mountain Division, Office of the Staff Judge Advocate Multinational Force Haiti After-Action Report 7-9

(March 1995) at 108 [hereinafter 10th Mountain AAR].

55 HAITI CONST. Art. 268-1 (1987).

56 See DEPT OF ARMY, PAM. 27-161-1, Law of Peace, Volume I, para. 8-23 (1 September 1979) at 11-1, [hereinafter DA PAM 27-161-1] for a good

explanation of an armed forces legal status while in a foreign nation.

57 Coleman v. Tennessee, 97 U.S. 509, 515 (1878).

58 Classical commentaries describe the international immunity of armed forces abroad as recognized by all civilized nations. GERHARD VON GLAHN,

LAW AMONG NATIONS 238 (1992) at 225-6 [hereinafter von Glahn]. See also WILLIAM W. BISHOP, JR. INTERNATIONAL LAW CASES AND MATERIALS

659-61 (3d ed. 1962) [hereinafter Bishop]. This doctrine was referred to as the Law of the Flag, meaning that the entering force took its law with its flag

and claimed immunity from host nation law. Contemporary commentators, including military scholars, recognize the jurisdictional friction between an

armed force that enters the territory of another state and the host state. This friction is present even where the entry occurs with the tacit approval of the

host state. Accordingly, the United States and most modern powers no longer rely upon the Law of the Flag, except as to armed conflict. DA PAM 27-

161-1, supra note 56, at 11-1.

Chapter 4

LOW in MOOTW

53
default setting of extreme importance. Historically, military commentators have stated that United States forces are

immune from host nation laws in any one of three possible scenarios:59

(1) immunity is granted in whole or part by international agreement;

(2) United States forces engage in combat with national forces; or

(3) United States forces enter under the auspices of a United Nations sanctioned security enforcement mission.

The exception represented by the first scenario is well recognized and the least problematic form of immunity. Yet,

most status of forces and stationing agreements deal with granting members of the force immunity from host nation

criminal and civil jurisdiction. Although this type of immunity is important, it is not the variety of immunity that is the

subject of this section. Our discussion revolves around the grant of immunity to the intervention (or sending) force nation

itself. This form of immunity benefits the nation directly,60 providing it with immunity from laws that protect host nation

civilians. For example, under what conditions can commanders of United States forces, deployed to the territory of

another nation, disregard the due process protections afforded by the host nation law to its own citizens?

Although not as common as a status of forces agreement, the United States has entered into these types of

arrangements. In fact the Carter-Jonassaint Agreement61 is an example of such an agreement. The agreement

demonstrated deference for the Haitian government by conditioning its acceptance upon the governments approval. It

further demonstrated deference by providing that all multi-national force activities would be coordinated with the

Haitian military high command. This required a number of additional agreements, arrangements, and understandings to

define the extent of host nation law application in regard to specific events and activities.

The exception represented by the second scenario is probably the most obvious. When engaged in traditional armed

conflict with another national power, military forces care little about the domestic law of that nation. For example, during

the Persian Gulf War, the coalition invasion force did not bother to stop at Iraqi traffic lights in late February 1991. The

domestic law of Iraq did not bind the invasion force.62 This exception is based on the classical application of the Law of

the Flag theory.

63

The Law of the Flag has two prongs. The first prong is referred to as the combat exception,64 is described above, and

is exemplified by the lawful disregard for host nation law exercised during such military operations as DESERT STORM.

This prong is still in favor and represents the state of the law.65 The second prong is referred to as the consent exception,

described by the excerpt from the United States Supreme Court in Coleman v. Tennessee quoted above, and is

exemplified by situations that range from the consensual stationing of National Treaty Alliance Organization (NATO)

forces in Germany to the permissive entry of multi-national forces in Haiti. The entire range of operations within the

consent prong no longer enjoys universal recognition (but to say it is now in disfavor would be an overstatement).66

To understand the contemporary status of the Law of the Flags consent prong, it is helpful to look at the various

types of operations that fall within its traditional range. At the far end of this range are those operations that no longer

benefit from the theorys grant of immunity. For instance, in nations where military forces have entered based upon true

59 Richard M. Whitaker, Environmental Aspects of Overseas Operations, ARMY LAW., Apr. 1995, at 31 [hereinafter Whitaker].

60 As opposed to the indirect benefit a sending nation gains from shielding the members of its force from host nation criminal and civil jurisdiction.

61 The entry agreement for Operation UPHOLD DEMOCRACY, reprinted in CLAMO HAITI REPORT, supra note 52, at 182-83.

62 This rule is modified to a small degree once the invasion phase ends and formal occupation begins. An occupant does have an obligation to apply the

laws of the occupied territory to the extent that they do not constitute a threat to its security. See Geneva Convention Relative to the Protection of

Civilian Persons in Time of War, 12 August 1949, 6 U.S.T. 3516, arts. 64-78.

63 See Whitaker, supra note 59, at 31.

64 Id. at footnotes 34 and 35.

65 See L. OPPENHEIM, INTERNATIONAL LAW, VOL. II, DISPUTES, WAR AND NEUTRALITY 520 (7th ed., H. Lauterpacht, 1955) [hereinafter Oppenheim].

In carrying out [the administration of occupied territory], the occupant is totally independent of the constitution and the laws of the territory, since

occupation is an aim of warfare and the maintenance and safety of his forces and the purpose of the war, stand in the foreground of his interests....

66 See DA PAM 27-161-1, supra note 56, at 11-1.

Chapter 4

LOW in MOOTW

54
invitations, and it is clear that the relationship between nations is both mature and normal,67 there is no automatic

immunity based upon the permissive nature of the entrance and continued presence. It is to this extent that the consent

prong of the Law of the Flag theory is in disfavor. In these types of situations, the host nation gives up the right to have

its laws complied with only to the extent that it does so in an international agreement (some type of SOFA).

On the other end of this range are operations that enjoy, at a minimum, a healthy argument for immunity. A number

of operational entrances into foreign states have been predicated upon invitations, but of a different type and quality than

discussed above. This type of entrance involves an absence of complete free choice on the part of the host nation (or least

the de facto government of the host nation). These scenarios are more reminiscent of the Law of the Flags combat prong,

as the legitimate use or threat of military force is critical to the characterization of the entrance. In these types of

operations, the application of host nation law will be closely tied to the mission mandate and specific operational setting.

The importance and discussion of these elements takes us to the third type of exception.

The third exception, although based upon the United Nations Charter, is a variation of the Law of the Flags combat

exception.68 Operations that place a United Nations force into a hostile environment, with a mission that places it at odds

with the de facto government may trigger this exception. The key to this exception is the mission mandate. If the

mandate requires the force to perform mission tasks that are entirely inconsistent with compliance with host nation law

then, to the extent of the inconsistency, the force would seem immunized from that law. This immunity is obvious when

the intervention forces contemplate the combat use of air, sea, or land forces under the provisions of the United Nations

Charter,69 but the same immunity is available to the extent it is necessary when combat is not contemplated.

70

The bottom line is that judge advocates should understand what events impact the immunity of their force from host

nation laws. In addition, military practitioners should contact the unified or major command to determine the Department

of Defenses position regarding the application of host nation law. They must be sensitive to the fact that the decisions,

which impact these issues, are made at the interagency level.

CONVENTIONAL LAW

This group of protections is perhaps the most familiar to practitioners and contains the protections that are bestowed

by virtue of international law conventions. This source of law may be characterized as the hard law that must be

triggered by some event, circumstance, or status in order to bestow protection upon any particular class of persons.

Examples include the law of war treaties (triggered by armed conflict), the Refugee Convention and its Protocol,

weapons/arms treaties, and bi-lateral or multi-lateral treaties with the host nation. Judge advocates must determine what

conventions, if any, are triggered by the current operation. Often when treaties have not been legally triggered, they

can still provide very useful guidance when fashioning law by analogy.

LAW BY ANALOGY

Because the primary body of law intended to guide conduct during military operations (the law of war) is normally

not triggered during MOOTW, the judge advocate must turn to other sources of law to craft resolutions to issues during

such operations. This absence of regulation creates a vacuum that is not easily filled. As indicated earlier, fundamental

human rights law serves as the foundation for some resolutions. However, because of the ill-defined nature of

imperatives that come from that law, judge advocates need a mechanism to employ to provide the command with

specific legal guidance in the absence of controlling specifics. In MOOTW, starting with Operation JUST CAUSE,71

67 Normal in the sense that some internal problem has not necessitated the entrance of the second nations military forces.

68 Whitaker, supra note 59, at n. 35.

69 UN CHARTER, Chapter VII, art. 42.

70 See United Nations Resolutions 940 and 1031. Resolution 940 mandated the multi-national force, led by the United States, to enter Haiti and use all

necessary means to force Cedras departure, return President Aristide to power, and to establish a secure and stable environment. The force was

obligated to comply with the protective guarantees that Haitian Law provided for its citizens only to the extent that such compliance would not disrupt

the accomplishment of these mission imperatives. This is exactly what happened. See 10th Mountain AAR, supra note 54, at pages 6-9 and 10-11. The

same type of approach is being applied by the United States element of the multinational force executing the mandate of Resolution 1031 and the

Dayton Accord.

71 Operation JUST CAUSE is cited as the first (well known) contemporary MOOTW, instead of 1983s Operation URGENT FURY. Although

URGENT FURY is frequently cited to as the first MOOTW, it actually represents an international armed conflict. URGENT FURY was the United

Chapter 4

LOW in MOOTW

55
and continuing with Operations RESTORE HOPE, UPHOLD DEMOCRACY, and JOINT ENDEAVOR, application of

an analogized version of the law of war has been employed to fill this gap and provide the command with imperative

specifics.

The license and mandate for utilizing non-binding sources of authority to fill this legal vacuum is established by the

Department of Defenses Law of War Program Directive (DOD Directive 5100.77), as implemented by the Joint Chiefs

of Staff (CJCSI 5810.01 (1996)). These two authorities direct the armed forces of the United States to apply the law of

war to any conflict, no matter how characterized; and to apply principles of the law of war to any operation characterized

as a MOOTW. Because of the nature of these MOOTW, sources of law relied upon to resolve various issues extend

beyond the law of war. These sources include, but are not limited to, tenants and principles from the law of war, United

States statutory and regulatory law, and peacetime treaties. The fit is not always exact, but more often than not, a

disciplined review of the international conventional and customary law or any number of bodies domestic law will

provide rules that, with moderate adjustment, serve well.

Among the most important rules of applying law by analogy is the enduring importance of the mission statement.

Because these rules are crafted to assist the military leader in the accomplishment of his mission, their application and

revision must be executed with the mission statement in mind. Judge advocates must not permit rules, promulgated to

lend order to mission accomplishment, become missions in and of themselves. There are many ways to comply with

domestic, international, and moral laws, while not depriving the leader of the tools he must have to accomplish his

mission.

The logical start point for this law by analogy process is the law of war. For example, when dealing with treatment

of civilians, a logical starting point is the law of war treaty devoted exclusively to the protection of civilians  the fourth

Geneva Convention. This treaty provides many detailed rules for the treatment of civilians during periods of occupation,

rules that can be relied upon, with necessary modification, by judge advocates to develop treatment policies and

procedures. Protocol I, with its definition of when civilians lose protected status (by taking active part in hostilities), may

be useful in developing classification of hostile versus non-hostile civilians. If civilians who pose a threat to the

force must be detained, it is equally logical to look to the Prisoner of War Convention as a source for analogy. Finally,

with regard to procedures for ensuring no detention is considered arbitrary, the Manual for Courts-Martial is an excellent

source of analogy for basic due process type procedures.

Obviously, the listing of sources is not exclusive. JAs should turn to any logical source of authority that resolves the

issue, keeps the command in constant compliance with basic human rights obligations, and makes good common sense.

These sources may often include not only the law of war and domestic law, but also non-binding human rights treaty

provisions, and host nation law. The imperative is that the judge advocate ensure that any policy based application of

non-binding authority is clearly understood by the command, and properly articulated to those questioning U.S. policies.

States unilateral operation to remove a Marxist de facto government (the Peoples Revolutionary Government), and restore the constitutional

government to the tiny Caribbean island of Grenada. Some point to the ostensible legitimate government of Grenadas request for the United States

intervention. One might point out that both the United States and Cuba (the other national force within Grenada) both announced that they were not at

war. In spite of these arguments, the United States acknowledged that its military forces did engage Cuban forces in combat. It further acknowledged

that, as a consequence, de facto hostilities existed and that the article 2 threshold was satisfied. See Memorandum, Hugh J. Clausen, to the Vice Chief

of Staff of the Army, subject: Geneva Conventions Status of Enemy Personnel Captured During URGENT FURY (4 Nov. 1983).

Chapter 4

LOW in MOOTW

56
APPENDIX A

TREATMENT OF PERSONS

I. FOUR TYPES OF LIBERTY DEPRIVATION:

A. Detainment;

B. Internment;

C. Assigned residence;

D. Simple imprisonment (referred to as confinement in AR 190-57):

1. Includes pre/post-trial incarceration.

2. Pretrial confinement must be deducted from any post-trial period of confinement.

3. A sentence of to imprisonment may be converted to a period of internment.

II. DETAINMENT IN MOOTW.

A. Detainment defined: Not formally defined in International Law. Although it may take on characteristics of

confinement, it is more analogous to internment (which is formally defined and explained in the Fourth Geneva

Convention (civilian convention)). Within Operation JOINT ENDEAVOR detention was defined as a person

involuntarily taken into custody for murder, rape, aggravated assault, or any act or omission as specified by the

IFOR Commander which could reasonably be expected to cause serious bodily harm to (1) civilians, (2) nonbelligerents, or (3) IFOR personnel.

72

B. Detainment is typically authorized (by a designated task force commander) for:

1. Serious crimes (as described above);

2. Posing a threat to U.S. forces (or based upon CINC authority, the coalition force);

3. Violating rules set out by the intervention forces. For example, the IFOR in Operation JOINT ENDEAVOR

authorized detainment for persons who attempted to enter controlled areas or attack IFOR property.

4. Obstructing the forces progress (obstructing mission accomplishment in any number of ways to include

rioting, demonstrating, or encouraging others to do so).

C. While these categories have proved effective in past operations, JAs must ensure that the categories actually

selected for any given operation are derived from a mission analysis, and not simply from lessons learned.

D. The LOW (and therefore, the Geneva Conventions) does (do) not technically apply to military operations that do

not involve armed conflict (MOOTW). However, pursuant to the law by analogy methodology, the LOW

should be used as guidance during MOOTW.

E. In MOOTW, judge advocates should:

72See Task Force Eagle: Joint Military Commission Policy and Planning Guidance Handbook (21 Mar. 1996).

Chapter 4, Appendix A

LOW in MOOTW

57
1. Advise their units to exhaust all appropriate non-forcible means before detaining persons who obstruct

friendly forces.

2. Look to the mission statement to determine what categories of civilians will be detained. The USCINCENT

Operation Order for Unified Task Force Somalia (1992) set out detailed rules for processing civilian

detainees. It stated:

In the area under his control, a commander must protect the population not only from attack by military

units, but also from crimes, riots, and other forms of civil disobedience. To this end, commanders will:

. . . Detain those accused of criminal acts or other violations of public safety and security.

3. After determining the type of detainees that will find their way into U.S. hands, JAs should determine what

protections should be afforded to each detainee.

a. Detainment SOPs might provide that all detainees will be treated consistently with Common article 3 to

ensure respect for fundamental human rights.

b. Using law by analogy, these protections are translated into rules such as those listed below, which were

implemented by the IFOR during Operation JOINT ENDEAVOR:

(1) Take only items from detainees that pose an immediate threat to members of the force or other

detainees.

(2) Use minimal force to detain or prevent escape (this may include deadly force if ROE permits).

(3) Searches must be conducted in such a way as to avoid humiliation and harassment.

(4) Detainees shall be treated humanely.

(5) Detainees shall not be physically abused.

(6) Contact with detainees may not be of a sexual nature.

(7) Detainees may not be used for manual labor or subservient tasks.

4. Apply procedural protections afforded by the host nation to individuals detained under similar conditions.

For example, if the host nation permits the right to a magistrate review within so many hours, attempt to

replicate this right if feasible.

5. Categorization and Segregation. The SOPs then go on to provide that the detainees will be categorized as

either criminal or hostile (force protection threats). Those accused of crimes should be separated from those

detained because they pose a threat to the force. In addition, detainees must be further separated based upon

clan membership, religious beliefs, or any other factor that might pose a legitimate threat to their safety.

F. In both Somalia and Haiti, the U.S. ran extremely successful Joint Detention Facilities (JDFs). The success of

these operations was based upon a simple formula.

1. Detain people based upon a clear and principled criteria.

2. Draft an JDF SOP with clear rules that each detainee must follow and rights to which each detainee is

entitled.

3. Base the quantity and quality of the rights upon a principled approach.

Chapter 4, Appendix A

LOW in MOOTW

58
G. When applying law by analogy, look to the GC, in addition to the GPW when dealing with civilians. (The

practice of JTF judge advocates in Operations RESTORE HOPE and RESTORE DEMOCRACY was to look

only to the GPW. This caused a number of problems because the GPW just did not provide an exact fit.).

III. SNAPSHOT OF MOOTW DETAINMENT RULES (ANALOGIZED FROM THE GC AND OTHER

APPLICABLE DOMESTIC AND INTERNATIONAL LAW)

A. Every civilian has the right to liberty and security. NO ONE SHALL BE SUBJECTED TO ARBITRARY

ARREST OR DETENTION. This is consistent with the GC requirement that detention be reserved as the

commanders last option. GC Art. 42.

B. Treatment will be based upon international law, without distinction based upon race, colour, sex, language,

political or other opinion, national or social origin, property, birth, or other status.

C. No detainee shall be subjected to cruel, inhuman, or degrading treatment.

D. Detain away from dangerous areas. GC Arts. 49 and 83.

E. The place of detainment must possess (to the greatest extent possible) every possible safeguard relative to

hygiene and health. GC Art. 85.

F. Detainees must receive food (account shall be taken of their customary diet) and clothing in sufficient quantity

and quality to keep them in a good state of health. GC Art. 89.

G. Detainees must be maintained away from PWs and criminals. GC Art. 84. In fact, U.S. commanders should

establish three categories of detainees:

1. Those detained because of suspected criminal activity;

2. Those detained because they have been convicted of criminal misconduct;

3. Those detained because they pose a serious threat to the security of the force (an expectation of future

activity, whether criminal or not).

H. Detainees shall be detained in accordance with a standard procedure, which the detainee shall have access to.

GC Art. 78. Detainees have the right to appeal their detention. The appeal must be process without delay. GC

Art. 78.

I. Adverse decisions on appeals must (if possible) be reviewed every six months. GC Art. 78.

J. Detainees retain all the civil rights (HN due process rights), unless incompatible with the security of the

Detaining Power. GC Art. 80.

K. Detainees have a right to free medical attention. GC Arts. 81, 91, & 92.

L. Families should be lodged together during periods of detainment. Detainees have the right to request that their

children be brought to the place of detainment and maintained with them. GC Art. 82.

M. Forwarding Correspondence.

1. In absence of operational limitations, there is no restriction on the number or length of letters sent or

received. In no circumstance, will the number sent fall below two cards and four letters. AR 190-57, para.

2-8.

2. No restriction on whom the detainee may correspond with. AR 190-8, para. 2-8.

Chapter 4, Appendix A

LOW in MOOTW

59
3. No restriction on the number or type of correspondence to either military authorities or humanitarian

organization.

Chapter 4, Appendix A

LOW in MOOTW

60
APPENDIX B

TREATMENT OF PROPERTY

IV. TREATMENT OF PROPERTY.

A. Every person has the right to own property, and no one may be arbitrarily deprived of such property.

B. The property laws of the host nation will control to the extent appropriate under Public International Law (unless

displaced by the nature of the operation or because of fundamental incompatibility with mission

accomplishment).

1. Consider the entire range of host nation law, from its constitution to its property codes. For example in

Operation UPHOLD DEMOCRACY the JTF discovered that the Haitian Constitution afforded Haitians the

right to bear arms. This right impacted the methodology of the JTF Weapons Confiscation Program.

C. If a non-international armed conflict is underway, only limited provisions of the law of war apply as a matter of

law (primarily common article 3 and Geneva Protocol II). These provisions provide no explicit protection for

private property. If an international armed conflict is underway, the property protections found in the Hague

Convention and the fourth Geneva Convention apply.

D. Law by Analogy.

1. The occupying power cannot destroy real or personal property . . . , except where such destruction is

rendered absolutely necessary. G.C. Art. 53.

2. Pillage. Defined as the the act of taking property or money by violence. Also referred to as plundering,

ravaging, or looting.

a. Forbidden in all circumstances

b. Punishable as a war crime or as a violation the UCMJ.

c. The property of a protected person may not be the object of a reprisal. (G.C. Art. 33).

d. Control of Property. The property within an occupied territory may be controlled by the occupying

power to the extent:

(1) Necessary to prevent its use by hostile forces.

OR

(2) To prevent any use which is harmful to the occupying power.

(3) NOTE: As soon as the threat subsides, private property must be returned. FM 27-10, Para. 399.

e. Understand the relationship between the battlefield acquisition rules of the law of war and the U.S.

Militarys Claims System. See the chapter on Claims in this Handbook.

f. Protection of civilian property for persons under the control of our forces (detained persons, etc.). The

United States has frequently provided protection of property provided to EPWs under the Third Geneva

Convention. For instance, all effects and articles of personal use, except arms and military equipment

Chapter 4, Appendix B

LOW in MOOTW

61
shall be retained by an EPW (GPW, art. 18). This same type of protection has a natural extension to

civilians that fall under military control.

Chapter 4, Appendix B

LOW in MOOTW

62
APPENDIX C

DISPLACED PERSONS

I. TREATMENT OF DISPLACED PERSONS.

A. If a displaced person qualifies for refugee status under U.S. interpretation of international law, the U.S.

generally must provide such refugees with same treatment provided to aliens and in many instances to a nations

own nationals. The most basic of these protections is the right to be shielded from danger.

1. REFUGEE DEFINED. Any Person:

a. who has a well-founded fear of being persecuted for reasons of race, religion, nationality, social group,

religion, or political association;

b. who is outside the nation of his nationality, and, according to United States interpretation of

international law (United States v. Haitian Centers Council, Inc., 113 S. Ct. 2549 (1993)) presents him

or herself at the borders of United States territory, and

c. is without the protection of his own nation, either because:

(1) that nation is unable to provide protection, or

(2) the person is unable to seek the protection, due to the well-founded fear described above.

(3) Harsh conditions, general strife, or adverse economic conditions are not considered

persecution. Individuals fleeing such conditions do not fall within the category of refugee.

B. MAIN SOURCES OF LAW:

1. 1951 Convention Relating to the Status of Refugees (RC). The RC bestows refugee status/protection on

pre-1951 refugees.

2. 1967 Protocol Relating to the Status of Refugees (RP). The RP bestows refugee status/protections on post1951 refugees.

a. Adopts same language as 1951 Convention.

b. U.S. is a party (110 ratifying nations).

3. 1980 Refugee Act (8 USC §1101). Because the RP was not self-executing, this legislation was intended to

conform U.S. law to the 1967 RP.

a. Applies only to displaced persons who present themselves at U.S. borders

b. This interpretation was challenged by advocates for Haitian refugees interdicted on the high seas

pursuant to Executive Order. They asserted that the international principle of non-refoulment (nonreturn) applied to refugees once they crossed an international border, and not only after they entered the

territory of the U.S.

c. The U.S. Supreme Court ratified the government interpretation of non-refoulment in United States v.

Sale. This case held that the RP does not prohibit the practice of rejection of refugees at our borders.

Chapter 4, Appendix C

LOW in MOOTW

63
(This holding is inconsistent with the position of the UNHCR, which considers the RP to prohibit

refoulment once a refugee crosses any international border).

4. Immigration and Nationality Act (8 USC §1253).

a. Prohibits Attorney General from deporting or returning aliens to countries that would pose a threat to

them based upon race, religion, nationality, membership in a particular social group, or because of a

particular political opinion held.

b. Does not limit U.S. authority outside of the U.S. (Foley Doctrine on Extraterritoriality of U.S. law).

5. Migration and Refugee Assistance Act of 1962 (22 § USC §2601).

a. Qualifies refugees for U.S. assistance.

b. Application conditioned upon positive contribution to the foreign policy interests of U.S.

C. RETURN/EXPULSION RULE. These rules apply only to individuals who qualify as refugees:

1. No Return Rule (RP art. 33). Parties may not return a refugee to a territory where his life or freedom would

be threatened on account of his race, religion, nationality, social group, or political opinion.

2. No Expulsion Rule (RP arts. 32 & 33). Parties may not expel a refugee in absence of proper grounds and

without due process of law.

3. According to the Supreme Court, these prohibitions are triggered only after an individual crosses a U.S.

border. This is the critical distinction between the U.S. and UNHCR interpretation of the RP which creates

the imperative that refugees be intercepted on the high seas and detained outside the U.S.

D. FREEDOMS AND RIGHTS. Generally, these rights bestow (1) better treatment than aliens receive, and (2)

attach upon the entry of the refugee into the territory of the party.

1. Freedom of Religion (equal to nationals).

2. Freedom to Acquire, Own, and Convey Property (equal to aliens).

3. Freedom of Association (equal to nationals).

4. Freedom of Movement (equal to aliens).

5. Access to Courts (equal to nationals).

6. Right to Employment (equal to nationals with limitations).

7. Right to Housing (equal to aliens).

8. Public Education (equal to nationals for elementary education).

9. Right to Social Security Benefits (equal to nationals).

10. Right to Expedited Naturalization.

E. DETAINMENT (See MOOTW DETAINMENT above).

1. U.S. policy relative to Cuban and Haitian Displaced Persons was to divert and detain.

Chapter 4, Appendix C

LOW in MOOTW

64
2. General Principles of International Law forbid prolonged & arbitrary detention (detention that preserves

national security is not arbitrary).

3. No statutory limit to the length of time for detention (4 years held not an abuse of discretion).

4. Basic Human Rights apply to detained or rescued displaced persons.

F. POLITICAL ASYLUM. Protection and sanctuary granted by a nation within its borders or on the seas, because

of persecution or fear of persecution as a result of race, religion, nationality, social group, or political opinion.

G. TEMPORARY REFUGE. Protection given for humanitarian reasons to a national of any country under

conditions of urgency in order to secure life or safety of the requester against imminent danger. NEITHER

POLITICAL ASYLUM NOR TEMPORARY REFUGE IS A CUSTOMARY LAW RIGHT. A number of

plaintiffs have attempted to assert the right to enjoy international temporary refuge has become an absolute right

under customary international law. The federal courts have routinely disagreed. Consistent with this view,

Congress intentionally left this type of relief out of the 1980 Refugee Act.

1. U.S. POLICY.

a. Political Asylum.

(1) The U.S. shall give foreign nationals full opportunity to have their requests considered on their

merits.

(2) Those seeking asylum shall not be surrendered to a foreign jurisdiction except as directed by the

Service Secretary.

(3) These rules apply whether the requester is a national of the country wherein the request was made

or from a third nation.

(4) The request must be coordinated with the host nation, through the appropriate American Embassy

or Consulate.

(5) This means that U.S. military personnel are never authorized to grant asylum.

b. Temporary Refuge. The U.S., in appropriate cases, shall grant refuge in foreign countries or on the

high seas of any country.

(1) This is the most the U.S. military should ever bestow.

H. IMPACT OF WHERE CANDIDATE IS LOCATED.

1. IN TERRITORIES UNDER EXCLUSIVE U.S. CONTROL AND ON HIGH SEAS:

a. Applicants will be received in U.S. facilities or on aboard U.S. vessels.

b. Applicants will be afforded every reasonable protection.

c. Refuge will end only if directed by higher authority (i.e., the Service Secretary).

d. Military personnel may not grant asylum.

e. Arrangements should be made to transfer the applicant to the Immigration and Naturalization Service

ASAP. Transfers dont require Service approval (local approval).

Chapter 4, Appendix C

LOW in MOOTW

65
f. All requests must be forwarded in accordance with AR 550-1, para 7.

g. Inquiries from foreign authorities will be met by the senior Army official present with the response that

the case has been referred to higher authorities.

h. No information relative to an asylum issue will be released to public, without HQDA approval.

(1) Immediately report all requests for political asylum/temporary refuge to the Army Operations

Center (AOC) at Commercial (703) 697-0218 or DSN 227-0218.

(2) The report will contain the information contained in AR 550-1.

(3) The report will not be delayed while gathering additional information

(4) Contact International and Operational Law Division, Army OTJAG (or service equivalent). The

AOC immediately turns around and contacts the service TJAG for legal advice.

2. IN FOREIGN TERRITORIES:

a. All requests for either political asylum or temporary refuge will be treated as requests for temporary

refuge.

b. The senior Army officer may grant refuge if he feels the elements are met: If individual is being

pursued or is in imminent danger of death or serious bodily injury.

c. If possible, applicants will be directed to apply in person at U.S. Embassy.

d. During the application process and refuge period the refugee will be protected. Refuge will end only

when directed by higher authority.

Chapter 4, Appendix C

LOW in MOOTW

66
CHAPTER 5

RULES OF ENGAGEMENT

REFERENCES

1. CJCSI 3121.01A, Standing Rules of Engagement for U.S. Forces, 15 January 2000.

2. CJCSI 3121.02, Rules on the Use of Force by DoD Personnel During Military Operations

Providing Support to Law Enforcement Agencies Conducting Counterdrug Operations in

the United States, 31 May 2000.

3. DoD Instruction 5210.56, Use of Deadly Force and the Carrying of Firearms by DoD

Personnel Engaged in Law Enforcement and Security Duties, 25 February 1992.

INTRODUCTION

Rules of Engagement (ROE) are the primary tool used to regulate the use of force, and thereby serve as one of the

cornerstones of the Operational Law discipline. The legal factors which serve as a foundation for ROE, that is, customary

and conventional law principles regarding the right of self defense and the laws of war, are varied and complex. They do

not, however, stand alone: non-legal issues, such as political objectives and military mission limitations, also play an

essential role in the construction and application of ROE. As a result of the multidisciplinary reach of ROE, judge

advocates play a significant role in their preparation, dissemination, and training. Notwithstanding the import of their

role, judge advocates must understand that, ultimately, ROE are the commanders rulesand that those rules must be

implemented by the soldier, sailor, airman, or marine who executes the mission.

In order to ensure that ROE are legally and tactically sound, versatile, understandable, and easily executed, both the

judge advocate and operators must understand the full breadth of policy, legal, and mission concerns they embrace, and

collaborate closely in their development, training, and implementation. Judge advocates must become familiar with

mission and operational concepts, force and weapons systems capabilities and constraints, battlefield operating systems,

and the Joint Operations Planning and Execution System (JOPES). Operators must familiarize themselves with the

international and domestic legal limitations on the use of force and the laws of armed conflict. Above all, judge

advocates and operators must talk the same language to provide effective ROE to the fighting forces.

This chapter will provide an overview of basic ROE concepts, survey CJCSI 3121.01A, Standing Rules of

Engagement for U.S. Forces (SROE), and review the judge advocates role in the ROE process, while providing

unclassified extracts from the SROE and specific operations in order to highlight critical issues and demonstrate effective

implementation of ROE.

NOTE: This chapter is NOT intended to be a substitute for the SROE. The SROE is classified Secret, and there are

important concepts within it that may not be reproduced here. The operational lawyer should ensure that he has ready

access to the publication. Once he has access, he should read it from cover to cover until he knows it. Judge advocates

play such an important role in the ROE process because we are experts in ROEbut you cannot be an expert unless you

read the SROE.

OVERVIEW

Definition of ROE. Joint Pub 1-02, Dictionary of Military and Associated Terms:

ROE are directives issued by competent military authority to delineate the circumstances and

limitations under which its own naval, ground, and air forces will initiate and/or continue combat

engagement with other forces encountered. They are the means by which the National Command

Authority (NCA) and operational commanders regulate the use of armed force in the context of

applicable political and military policy and domestic and international law.

Chapter 5

Rules of Engagement

67
Purposes of ROE. As a practical matter, ROE perform three functions: (1) Provide guidance from the National

Command Authority (NCA) to deployed units on the use of force; (2) Act as a control mechanism for the transition from

peacetime to combat operations (war); and (3) Provide a mechanism to facilitate planning. ROE provide a framework

which encompasses national policy goals, mission requirements, and the rule of law.

Political Purposes: ROE ensure that national policy and objectives are reflected in the action of commanders in the

field, particularly under circumstances in which communication with higher authority is not possible. For example, in

reflecting national political and diplomatic purposes, the ROE may restrict the engagement of certain targets, or the use of

particular weapons systems, out of a desire not to antagonize the enemy, tilt world opinion in a particular direction, or as a

positive limit on the escalation of hostilities. Falling within the array of political concerns are such issues as the influence

of international public opinion, particularly how it is affected by media coverage of a specific operation, the effect of host

country law, and the status of forces agreements with the United States (i.e., SOFAs).

Military Purposes: ROE provide parameters within which the commander must operate in order to accomplish his

assigned mission:

ROE provide a ceiling on operations and ensure that U.S. actions do not trigger undesired escalation, i.e., forcing

a potential opponent into a self defense response.

ROE may regulate a commanders capability to influence a military action by granting or withholding the

authority to use particular weapons systems by vesting or restricting authority to use certain types of weapons

or tactics.

ROE may also reemphasize the scope of a mission. Units deployed overseas for training exercises may be

limited to use of force only in self defense, reinforcing the training rather than combat nature of the mission

Legal Purposes: ROE provide restraints on a commanders action consistent with both domestic and international

law and may, under certain circumstances, impose greater restrictions on action than those required by the law. For many

contemporary missions, particularly peace operations, the mission is stated in a document such as a UN Security Council

Resolution, e.g., UNSCR 940 in Haiti or UNSCR 1031 in Bosnia. These Security Council Resolutions also detail the

scope of force authorized to accomplish the purpose stated therein. Commanders must therefore be intimately familiar

with the legal bases for their mission. The commander may issue ROE to reinforce principles of the law of war, such as

prohibitions on the destruction of religious or cultural property, and minimization of injury to civilians and civilian

property.

CJCS STANDING RULES OF ENGAGEMENT

The new SROE went into effect on 15 January 2000, the result of an all-DoD review and revision of the previous

1994 edition. It provides implementation guidance on the inherent right of self defense and the application of force for

mission accomplishment. It is designed to provide a common template for development and implementation of ROE for

the full range of operations, from peace to war.

Applicability. The SROE applies to all U.S. forces responding to military attacks within the United States, and to all

military operations outside the United States, with limited exceptions, the most prominent being for Multi-National Force

operations. It no longer applies to peacetime domestic support operations. CJCSI 3121.02, Rules on the Use of Force by

DoD Personnel During Military Operations Providing Support to Law Enforcement Agencies Conducting Counterdrug

Operations in the United States, and DoD Instruction 5210.56, Use of Deadly Force and the Carrying of Firearms by DoD

Personnel Engaged in Law Enforcement and Security Duties, apply to these operations.

The SROE is divided as follows:

Enclosure A (Standing Rules of Engagement): This unclassified enclosure details the general purpose, intent, and

scope of the SROE, emphasizing a commanders right and obligation to use force in self defense. Critical principles, such

as unit, individual, national, and collective self defense; hostile act and intent; and the determination to declare forces

Chapter 5

Rules of Engagement

68
hostile are addressed as foundational elements of all ROE. [NOTE: The unclassified portion of the SROE, including

Enclosure A without its appendices, is reprinted as Appendix A to this Chapter].

Enclosures B-I: These classified enclosures provide general guidance on specific types of operations: Maritime, Air,

Land, and Space Operations; Information Operations; Noncombatant Evacuation Operations, Counterdrug Support

Operations; and Domestic Support Operations.

Enclosure J (Supplemental Measures): Supplemental measures found in this enclosure enable a commander to

obtain or grant those additional authorities necessary to accomplish an assigned mission. Tables of supplemental

measures are divided into those actions requiring NCA approval, those that require either NCA or Combatant Commander

approval, and those that are delegated to subordinate commanders (though the delegation may be withheld by higher

authority). The new SROE now recognizes a fundamental difference between the supplemental measures. Those

measures that are reserved to the NCA or CINC are generally restrictive, that is, either the NCA or CINC must

specifically permit the particular operation, tactic, or weapon before a field commander may utilize them. Contrast this

with the remainder of the supplemental measures, those delegated to subordinate commanders. These measures are all

permissive in nature, allowing a commander to use any weapon or tactic available and to employ reasonable force to

accomplish his mission, without having to get permission first. Inclusion within the subordinate commanders

supplemental list does not suggest that a commander needs to seek authority to use any of the listed items.

SUPPLEMENTAL ROE RELATE TO MISSION ACCOMPLISHMENT, NOT TO SELF DEFENSE, AND NEVER LIMIT A

COMMANDERS INHERENT RIGHT AND OBLIGATION OF SELF DEFENSE.

Enclosure K (Combatant Commanders Theater-Specific ROE): Enclosure K contains specific rules of

engagement submitted by Combatant Commanders for use within their Area of Responsibility (AOR). Those special

ROE address specific strategic and political sensitivities of the Combatant Commanders AOR and must be approved by

CJCS. They are included in the SROE as a means to assist commanders and units participating in operations outside their

assigned AORs.

Enclosure L (Rules of Engagement Process): This new, unclassified enclosure (reprinted in Appendix A to this

chapter) provides guidelines for incorporating ROE development into military planning processes. It introduces the ROE

Planning Cell which may be utilized during the development process.

Key Definitions / Issues:

Self Defense: The SROE do not limit a commanders inherent authority and obligation to use all necessary

means available and to take all appropriate action in self defense of the commanders unit and other U.S. forces in

the vicinity.

National self defense: The act of defending the United States, U.S. forces, and in certain circumstances, U.S.

citizens and their property, and U.S. commercial assets from a hostile act, hostile intent, or hostile force.

Collective self defense. The act of defending designated non-U.S. citizens, forces, property, and interests from a

hostile act or hostile intent. Only the NCA may authorize the exercise of collective self defense. Collective self defense

is generally implemented during combined operations.

Unit self defense: The act of defending elements or personnel of a defined unit, as well as U.S. forces in the

vicinity thereof, against a hostile act or hostile intent.

Individual self defense. The right to defend oneself and other U.S. forces in the vicinity from a hostile act or

hostile intent.

Defense of Mission & Self Defense: The SROE distinguish between the right and obligation of self defense,

which is non-derogable, and the use of force for the accomplishment of an assigned mission. Authority to use force in

mission accomplishment may be limited in light of political, military or legal concerns, but such limitations have NO

impact on a commanders right and obligation of self defense.

Chapter 5

Rules of Engagement

69
Hostile Act: An attack or other use of force by a foreign force or terrorist unit against the United States, U.S. forces,

or other designated persons and property, or a use of force intended to preclude or impede the mission of U.S. forces. A

hostile act triggers the right to use proportional force in self defense to deter, neutralize, or destroy the threat.

Hostile Intent: The threat of imminent use of force by a foreign force or terrorist unit against the United States, U.S.

forces, or other designated persons and property. When hostile intent is present, the right exists to use proportional force

in self defense to deter, neutralize, or destroy the threat.

Hostile Force: Any force or unit that has committed a hostile act, demonstrated hostile intent, or has been declared

hostile.

Declaring Forces Hostile: Once a force is declared to be hostile, U.S. units may engage it without observing a

hostile act or demonstration of hostile intent, i.e., the basis for engagement shifts from conduct to status. The authority to

declare a force hostile is limited, and may be found at Appendix A to Enclosure A of the SROE.

Promulgation of ROE: Mission ROE are promulgated at Appendix 8, Annex C, of JOPES-formatted Operational

Orders, and via formatted messages as found at Appendix F to Enclosure J of the SROE.

ROLE OF THE JUDGE ADVOCATE

The judge advocate at all levels plays an important role in the ROE process. The remainder of this chapter will

discuss the four major tasks with which the judge advocate will be confronted. Although presented as discrete tasks, the

judge advocate may find himself involved with all of them at once.

Determining the current ROE

A judge advocate in an operational unit will typically find himself tasked with briefing the ROE to a commander

during the daily operational brief (at least during the first few days of the operation). In preparing his brief, a judge

advocate will want to consult the following sources:

The SROE related to self defense. The rights and obligations of commanders to defend their units is always

applicable, and bears repeating at any ROE briefing. The concepts of hostile act and hostile intent may require

additional explanation.

As applicable, those enclosures of the SROE that deal with the type of operation (e.g., Maritime, Space, or

Counterdrug operations).

Depending on the location of an operation, the combatant commanders special ROE for his AOR, found in

Enclosure K.

The base-line ROE for this particular mission as provided in the OPLAN or as promulgated by separate message.

Any additional ROE promulgated as the operation evolves or changes, or in response to requests for additional

ROE. This is often a challenging area for a judge advocate. During the first few days of an operation, the ROE

may be quite fluid. A judge advocate will want to ensure that any ROE message is brought to his immediate

attention (close liaison with the JOC/TOC Battle Captain is necessary here). A judge advocate should periodically

review the message traffic himself to ensure that no ROE messages were missed, and should maintain close contact

with judge advocates at higher levels who will be able to alert him that ROE changes were made or are on the way.

Adhering to the rules for serializing ROE messages (appendix F to enclosure J) will help judge advocates at all

levels determine where the ROE stands.

As the operation matures and the ROE become static, the judge advocate will probably be relieved of his daily briefing

obligation. However, ROE should continue to be monitored, and notable changes should be brought to the commanders

attention.

Chapter 5

Rules of Engagement

70
Requesting Additional ROE

The SROE provides that commanders at any level may request additional ROE. Commanders must look to their

mission tasking and existing ROE when determining courses of action for the mission. The commander may decide that

the existing ROE is unclear, or too restrictive, or otherwise unsuitable for his particular mission. In that case, he may

request additional ROE.

Although the task of drafting an ROE request message (format for which will be found in appendix F to enclosure J)

will often be assigned to the judge advocate, he cannot do it alone: there must be extensive command and operator input.

The concept of an ROE Planning Cell, consisting of representatives from all sections of the command, including the

judge advocate, is recognized in Enclosure L of the SROE. Such a cell should prove ideal for the task of drafting an ROE

request. The judge advocate, who should have the best grasp of ROE in general and the SROE in particular, will still play

a significant advisory role in this process.

Some considerations for drafting an ROE request message:

Base-line ROE typically are promulgated at the CINC-level and higher, and receive great thought. Be especially

careful about requesting supplemental measures that require NCA approvalthese items have already received the

greatest thought. This is not to say that there are no circumstances for which requesting such a measure is

appropriate, only that they will be relatively rare.

In the request message, justify why the supplemental measure is needed. As above, those at higher headquarters

who have reviewed the ROE reasonably believe that they have provided the most suitable rules. It is your job to

prove otherwise. For example, your unit may have a mission which earlier ROE planners could not have foreseen,

and which the ROE do not quite fit. If this circumstance is clearly explained, the approval authority is more likely

to approve the request.

Remember the policy regarding supplemental measures is that they are generally permissive in nature (except for

those reserved to the NCA or CINC). It is not necessary to request authority to use every weapon and tactic

available at the unit level: higher headquarters will restrict their use by an appropriate supplemental measure if that

is thought necessary. See the discussion in enclosure J of the SROE for more detail.

Maintain close contact with judge advocates at higher headquarters levels. Remember that ROE requests rise

through the chain of command until they reach the appropriate approval authority, but that intermediate commands

may disapprove the request. Your liaison may prove instrumental in having close cases approved, and in avoiding

lost causes.

Follow the message format. Although it may seem like form over substance, a properly formatted message

indicates to those reviewing it up the chain of command that your command (and you) know the SROE process and

should be taken seriously.

Disseminating ROE to subordinate units

Recall that supplemental measures are grouped according to the authority who approves them, and that the last (and

largest) group are those which may be delegated to commanders subordinate to the CINC. Rarely will this delegation go

below the component commander/JTF level. Therefore, only judge advocates at that level and above will face this task.

The process involves taking what ROE have been provided by higher authority, adding your commanders guidance

(within the power delegated to him), and broadcasting it all to subordinate units. To illustrate, CJCS/Joint Staff ROE,

reflecting the guidance of the NCA, are generally addressed to the CINC and Service level. The supported CINC takes

those NCA-approved measures, adds appropriate supplemental measures from the group the CINC may approve, and

addresses these to his subordinate commanders, or to a subordinate JTF, as applicable. If the subordinate commander/JTF

commander has been delegated the authority to approve certain supplemental measures, he will take the NCA- and CINCapproved ROE, add any of his own, and distribute his ROE message throughout the rest of the force. To illustrate further,

suppose that a JTF commander receives the CINCs ROE, and there is no restriction on indirect, unobserved fire. The

Chapter 5

Rules of Engagement

71
JTF commander, however, wants to restrict its use by his forces. The JTF ROE message to the field, therefore, should

include the addition of the appropriate supplemental measure restricting unobserved, indirect fire (assuming that this is

among the measures for which the JTF commander has been delegated authority).

Accordingly, the drafting of ROE is applicable at each of these levels. As above, however, a judge advocate cannot

do it alone. The ROE Planning Cell concept is also appropriate to this task. Some of the considerations applicable

include:

Drafting

Avoid Strategy and Doctrine. ROE should not be used as a mechanism through which to convey strategy or

doctrine. The commander should express his battlefield philosophy through the battle order and his personally

communicated guidance to subordinates.

Avoid Restating the Law of War. ROE should not restate the law of war. Commanders may desire to

emphasize an aspect of the law of war that is particularly relevant to a specific operation (e.g., see the

DESERT STORM ROE regarding cultural property), but they should not include an extensive discussion of

the Hague Regulations and Geneva Conventions.

Avoid Tactics. Tactics and ROE are complimentary, not synonymous. ROE are designed to provide

boundaries and guidance on the use of force that are neither tactical control measures nor substitutes for the

exercise of the commanders military judgment. Phase lines, control points, and other tactical control

measures should not be contained in ROE. These measures belong in the coordinating instructions.

Prescribing tactics in ROE only serves to limit flexibility.

Avoid Safety-Related Restrictions. ROE should not deal with safety-related restrictions. Certain weapons

require specific safety-related, pre-operation steps. These should not be detailed in the ROE, but may appear

in the tactical or field SOP.

ROE must be UNDERSTANDABLE, MEMORABLE, and APPLICABLE: ROE are useful and effective only

when understood, remembered, and readily applied under stress. They are directive in nature and should avoid

excessively qualified language. ROE must be tailored to both the unit and mission and must be applicable in a

wide range of circumstances presented in the field. Well formulated ROE anticipate the circumstances of an

operation and provide unambiguous guidance to a soldier, sailor, airman and marine before he confronts a threat.

Once again, follow the message format

Training ROE

Once the mission specific ROE are received, the question becomes, How can I as a judge advocate help to ensure

that the troops understand the ROE and are able to apply the rules reflected in the ROE? A judge advocate can play a

significant role in assisting in the training of individual soldiers and the staff and leaders of the Battlefield Operating

Systems (BOS).

It is the commander, not a judge advocate, who is responsible for training the soldiers assigned to the unit on the

ROE and on every other mission essential task. The commander normally turns to the staff principal for training, the G3

or S3, to plan and coordinate all unit training. A judge advocates first task may be to help the commander see the value

in organized ROE training. If the commander considers ROE training to be a battle task, that is, a task that a

subordinate command must accomplish in order for the command to accomplish its mission, it is more likely that junior

leaders will see the advantages of ROE training. The 3 is more likely to be willing to set aside training time for ROE

training if it can be accomplished in conjunction with other unit training. For example, at range training, it is very rare

indeed that all soldiers will be on the firing line at once. Stations at a range could be set up for ROE training. Lane

training for soldiers and staff training could be built into FTXs and CPXs as well.

Chapter 5

Rules of Engagement

72
There is no U.S. Army doctrine on how to specifically train soldiers on the SROE or on the mission-specific ROE.

However, given that ROE are intended to be a control mechanism for operations in the field, there can be no substitute for

individual and collective training programs. Realistic, rigorous scenario or vignette driven training exercises have been

validated time and again, and proven to be far superior to classroom instruction on ROE. ROE training should be

conducted by the soldiers NCOs and officers. The soldier will apply the ROE with his or her NCOs and officers, not

with the judge advocate. The judge advocate should be willing to assist in drafting realistic training, and to be present

when possible to observe training and to answer questions regarding the application of the ROE. If the soldiers at the

squad and platoon level study and train to the ROE, they will be more likely to apply them as a team in the real world.

Training should begin with individual discussions between the soldier and the NCOs, on a one-on-one basis. A

soldier should be able to articulate the meaning of the terms hostile force, hostile act, hostile intent, and other key ROE

principals. Once each soldier in the squad is capable of doing this, the squad should be put through an ROE lane, or

Situational Training Exercise (STX). This involves the creation of a plausible scenario a soldier and his squad may face

related to the SROE or the relevant mission specific ROE. Soldiers move through the lane as a squad and confront role

players acting out the scenario. For example, if the soldiers are preparing to deploy on a peacekeeping mission, the STX

scenario may call for them to operate a roadblock or checkpoint. A group of paramilitary role players could approach the

checkpoint in a non-threatening manner. As the scenario progresses, the role players may become more agitated and

eventually they may begin shooting at the peacekeepers.

The goal in STX training is primarily to help the soldiers to recognize hostile acts and hostile intent and the

appropriate level of force to apply in response. These concepts can usually best be taught by exposing the soldiers to

varying degrees of threats of force. For example, in some lanes, the threat may be verbal abuse only. It may then progress

to spitting, or physical attacks short of a threat to life or limb. Finally, significant threats of death or grievous bodily harm

may be incorporated such as an attack on the soldier with a knife or club, or with a firearm. Although not specifically in

the ROE, the soldiers might be taught that an immediate threat of force likely to result in death, or grievous bodily harm

(such as the loss of limb or vital organs, or broken bones) is the type of hostile intent justifying a response with deadly

force. They should be taught to understand that even in cases where deadly force is not authorized, they may use force

short of deadly force in order to defend themselves and property.

In most military operations other than war, deadly force is not authorized to protect property that is not mission

essential. However, some degree of force is authorized to protect non-mission essential property. A lane may be

established where a role player attempts to steal some MREs. The soldier must understand that non-deadly force is

authorized to protect the property. Moreover, if the role player suddenly threatens the soldier with deadly force to take

the non-essential property, the soldier should be taught that deadly force would be authorized in response, not to prevent

theft, but to defend him from the threat by the role player. Once they understand what actions they can take to defend

themselves, members of their unit, and property, the mission specific ROE should be consulted and trained on the issue of

third party defense of others.

Not only should the soldiers be trained on the ROE, but the staff and BOS elements should be trained as well. This

can best be accomplished in FTXs and CPXs. Prior to a real world deployment, ROE integration and synchronization

should be conducted to ensure that all BOS elements understand the ROE and how each system will apply the rules. The

judge advocate should ensure that the planned course of action in terms of the application of the ROE is consistent with

the ROE.

POCKET CARDS:

ROE cards are a summary or extract of mission specific ROE. Developed as a clear, concise and

UNCLASSIFIED distillation of the ROE, they serve as both a training and memory tool; however, ROE CARDS ARE

NOT A SUBSTITUTE FOR ACTUAL KNOWLEDGE OF THE ROE. When confronted with a crisis in the field, the

soldier, sailor, airman or marine will not be able to consult his pocket cardhe must depend upon principles of ROE

internalized during the training process. Notwithstanding that limitation, ROE cards are a particularly useful tool when

they conform to certain parameters:

Brevity and clarity. Use short sentences and words found in the common vocabulary. Avoid using unusual

acronyms or abbreviations. Express only one idea in each sentence, communicating the idea in a active,

Chapter 5

Rules of Engagement

73
imperative format. Although such an approachthe classic bullet formatmay not be possible in every case,

it should be used whenever feasible.

Avoid qualified language. ROE are directives, advising subordinates of the commanders desires and mission

plan. They should, therefore, be as direct as any other order issued by the commander. While qualifying

language may obscure meaning, its use is often necessary to convey the proper guidance. In such a case, the

drafter should use separate sentences or subparagraphs to assure clarity of expression.

Tailored to the Audience. ROE cards are intended for the widest distribution possibleultimately, they will be

put in the hands of an individual soldier, sailor, airman, or marine. Be aware of the sophistication level of the

audience and draft the card accordingly. ALWAYS REMEMBER, ROE are written for commanders, their

subordinates, and the individual service member charged with executing the mission on the groundthey are not

an exercise in lawyering.

NOTE: Examples of ROE cards employed in various missionsfrom peacekeeping to combatare found at

Appendix B of this chapter. These are not go-bys, but are intended to provide a frame of reference for the

command/operations/judge advocate team as they develop similar tools for assigned operations.

Chapter 5

Rules of Engagement

74
Chapter 5, Appendix A

Rules of Engagement

75

J-3 CJCSI 3121.01A

DISTRIBUTION: A, C, S 15 January 2000

STANDING RULES OF ENGAGEMENT FOR U.S. FORCES

Reference: See Enclosure M.

1. Purpose. This instruction establishes:

a. SecDef-approved standing rules of engagement (SROE) that implement the

inherent right of self-defense and provide guidance for the application of force for

mission accomplishment.

b. Fundamental policies and procedures governing action to be taken by U.S. force

commanders during all military operations and contingencies as specified in paragraph 3.

2. Cancellation. CJCSI 3121.01, 1 October 1994, is canceled.

3. Applicability. ROE apply to U.S. forces during military attacks against the United

States and during all military operations, contingencies, and terrorist attacks occurring

outside the territorial jurisdiction of the United States. The territorial jurisdiction of the

United States includes the 50 states, the Commonwealths of Puerto Rico and Northern

Marianas, U.S. possessions, and U.S. territories.

a. Peacetime operations conducted by the U.S. military within the territorial

jurisdiction of the United States are governed by use-of-force rules contained in other

directives or as determined on a case-by-case basis for specific missions (see paragraph 4

of Enclosure H and Enclosure I).

b. Inclusion of NORAD. For purposes of this document, the Commander, U.S.

Element NORAD, will be referred to as a CINC.

4. Policy. See Enclosure A.

Note: The pagination

of these extracts do not

match the SROE.
CJCSI 3121.01A

15 January 2000

5. Definitions. Definitions are contained in the enclosures and the Glossary.

6. Responsibilities. The NCA approve ROE for U.S. forces. The Joint Staff, Joint

Operations Division (J-3), is responsible for the maintenance of these ROE.

a. The CINCs may augment these SROE as necessary to reflect changing political

and military policies, threats, and missions specific to their areas of responsibility

(AORs). When a CINCs theater-specific ROE modify these SROE, they will be

submitted to Chairman of the Joint Chiefs of Staff for NCA approval, if required, and

referenced in Enclosure K of this instruction.

b. Commanders at every echelon are responsible for establishing ROE for mission

accomplishment that comply with ROE of senior commanders and these SROE. The

SROE differentiate between the use of force for self-defense and for mission

accomplishment. Commanders have the inherent authority and obligation to use all

necessary means available and to take all appropriate actions in the self-defense of their

unit and other U.S. forces in the vicinity. ROE supplemental measures apply only to the

use of force for mission accomplishment and do not limit a commanders use of force in

self-defense (see Enclosure A for amplification).

c. The two types of supplemental measures are -- those that authorize a certain action

and those that place limits on the use of force for mission accomplishment. Some actions

or weapons must be authorized either by the NCA or by a CINC. In all other cases,

commanders may use any lawful weapon or tactic available for mission accomplishment

unless specifically restricted by an approved supplemental measure. Any commander

may issue supplemental measures that place limits on the use of force for mission

accomplishment (see Enclosure J for amplification).

d. The CINCs distribute these SROE to subordinate commanders and units for

implementation.

7. Procedures. Guidance for the use of force for self-defense and mission

accomplishment is set forth in this document. Enclosure A, minus appendixes, is

UNCLASSIFIED and intended to be used as a coordination tool with U.S. allies for the

development of combined or multinational ROE consistent with these SROE. The

supplemental measures list in Enclosure J is organized by authorization level to facilitate

quick reference during crisis planning. As outlined in paragraph 6 above, the CINCs will

submit theater-specific SROE for reference in this instruction to facilitate theater-totheater coordination.

2

Chapter 5, Appendix A

Rules of Engagement

76
CJCSI 3121.01A

15 January 2000

8. Releasability. This instruction is approved for limited release. DOD components (to

include the combatant commands) and other Federal agencies may obtain copies of this

instruction through controlled Internet access only (limited to .mil and .gov users) from

the CJCS Directives Home Page--http://www.dtic.mil/doctrine/jel.htm. The Joint Staff

activities may access or obtain copies of this instruction from the Joint Staff LAN.

9. Effective Date. This instruction is effective upon receipt for all U.S. force

commanders and supersedes all other nonconforming guidance.

10.Document Security. This basic instruction is UNCLASSIFIED. Enclosures are

classified as indicated.

HENRY H. SHELTON

Chairman

of the Joint Chiefs of Staff

Enclosures:

A -- Standing Rules of Engagement for U.S. Forces

Appendix A - Self-Defense of U.S. Nationals and Their Property at Sea

Appendix B - Recovery of U.S. Government Property at Sea

Appendix C - Protection and Disposition of Foreign Nationals in the Custody

of U.S. Forces

B -- Maritime Operations

C -- Air Operations

D -- Land Operations

E -- Space Operations

F -- Information Operations

G -- Noncombatant Evacuation Operations

H -- Counterdrug Support Operations

3

Chapter 5, Appendix A

Rules of Engagement

77
CJCSI 3121.01A

15 January 2000

I -- Domestic Support Operations

J -- Supplemental Measures

Appendix A - General Supplemental Measures

Appendix B - Supplemental Measures for Maritime Operations

Appendix C - Supplemental Measures for Air Operations

Appendix D - Supplemental Measures for Land Operations

Appendix E - Supplemental Measures for Space Operations

Appendix F - Message Formats and Examples

K -- Combatant Commanders Theater-Specific ROE

L -- Rules of Engagement Process

M -- References

GL-- Glossary

4

Chapter 5, Appendix A

Rules of Engagement

78
CJCSI 3121.01A

15 January 2000

ENCLOSURE A

STANDING RULES OF ENGAGEMENT FOR U.S. FORCES

1. Purpose and Scope

a. The purpose of these SROE is to provide implementation guidance on the

application of force for mission accomplishment and the exercise of the inherent right

and obligation of self-defense. In the absence of superseding guidance, the SROE

establish fundamental policies and procedures governing the actions to be taken by U.S.

force commanders in the event of military attack against the United States and during all

military operations, contingencies, terrorist attacks, or prolonged conflicts outside the

territorial jurisdiction of the United States, including the Commonwealths of Puerto Rico

and Northern Marianas, U.S. possessions, and U.S. territories. To provide uniform

training and planning capabilities, this document is authorized for distribution to

commanders at all levels and is to be used as fundamental guidance for training and

directing their forces.

b. Except as augmented by supplemental ROE for specific operations, missions, or

projects, the policies and procedures established herein remain in effect until rescinded.

c. U.S. forces operating with multinational forces:

(1) U.S. forces assigned to the operational control (OPCON) or tactical control

(TACON) of a multinational force will follow the ROE of the multinational force for

mission accomplishment if authorized by the NCA. U.S. forces always retain the right to

use necessary and proportional force for unit and individual self-defense in response to a

hostile act or demonstrated hostile intent.

(2) When U.S. forces, under U.S. OPCON or TACON, operate in conjunction

with a multinational force, reasonable efforts win be made to effect common ROE. If

such ROE cannot be established, U.S. forces will operate under these SROE. To avoid

misunderstanding, the multi-national forces will be informed prior to U.S. participation

in the operation that U.S. forces intend to operate under these SROE and to exercise unit

and individual self-defense in response to a hostile act or demonstrated hostile intent.

For additional guidance concerning peace operations, see Appendix A to Enclosure A.

A-1 Enclosure A

Chapter 5, Appendix A

Rules of Engagement

79
Chapter 5, Appendix A

Rules of Engagement

80

CJCSI 3121.01A

15 January 2000

(3) Participation in multinational operations may be complicated by varying

national obligations derived from international agreements: e.g., other coalition members

may not be parties to treaties that bind the United States, or they may be bound by

treaties to which the United States is not a party. U.S. forces remain bound by U.S.

international agreements even if the other coalition members are not parties to these

agreements and need not adhere to the terms.

d. Commanders of U.S. forces subject to international agreements governing their

presence in foreign countries (e.g., Status of Forces Agreements) retain the inherent

authority and obligation to use all necessary means available and take all appropriate

actions for unit self-defense.

e. U.S. forces in support of operations not under OPCON or TACON of a U.S.

CINC or that are performing missions under direct control of the NCA, Military

Departments, or other-USG departments or agencies (e.g., Marine Security Guards,

certain special security forces) will operate under use-of-force policies or ROE

promulgated by those departments or agencies. U.S. forces, in these cases, retain the

authority and obligation to use all necessary means available and to take all appropriate

actions in unit self-defense in accordance with these SROE.

f. U.S. Naval units under USCG OPCON or TACON conducting law enforcement

support operations will follow the use-of-force and weapons policy issued by the

Commandant, USCG, but only to the extent of use of warning shots and disabling fire per

14 USC 637 (reference w). DOD units operating under USCG OPCON or TACON

retain the authority and obligation to use all necessary means available and to take all

appropriate actions in unit self-defense in accordance with these SROE.

g. U.S. forces will comply with the Law of War during military operations involving

armed conflict, no matter how the conflict may be characterized under international law,

and will comply with its principles and spirit during all other operations.

2. Policy

a. These rules do not limit a commanders inherent authority and obligation to

use all necessary means available and to take all appropriate actions in self-defense

of the commanders unit and other U.S. forces in the vicinity.

A-2 Enclosure A
Chapter 5, Appendix A

Rules of Engagement

81

CJCSI 3121.01A

15 January 2000

b. The goal of U.S. national security policy is to preserve the survival, safety, and

vitality of our nation and to maintain a stable international environment consistent with

U.S. national interests. U.S. national security interests guide global objectives of

deterring and, if necessary, defeating armed attack or terrorist actions against the United

States to include U.S. forces and, in certain circumstances, U.S. nationals and their

property, U.S. commercial assets, persons in U.S. custody, designated non-U.S. forces,

and foreign nationals and their property.

3. Intent. These SROE are intended to:

a. Implement the right of self-defense, which is applicable worldwide to all echelons

of command.

b. Provide guidance governing the use of force consistent with mission

accomplishment.

c. Be used in peacetime operations other than war, during transition from peacetime

to armed conflict or war, and during armed conflict in the absence of superseding

guidance.

4. CINCs Theater-Specific ROE

a. CINCs may augment these SROE as necessary as delineated in subparagraph 6a

of the basic instruction.

b. CINCs will distribute these SROE to subordinate commanders and units for

implementation. The mechanism for disseminating ROE supplemental measures is set

forth in Enclosure J.

5. Definitions

a. Inherent Right of Self-Defense. A commander has the authority and obligation to

use all necessary means available and to take all appropriate actions to defend that

commanders unit and other US forces in the vicinity from a hostile act or demonstration

of hostile intent. Neither these rules, nor the supplemental measures activated to augment

these rules, limit this inherent right and obligation. At all times, the requirements of

necessity and proportionality, as amplified in these SROE, will form the basis for the

judgment of the on-scene commander (OSC) or individual as to what constitutes an

appropriate response to a particular hostile act or demonstration of hostile intent.

A-3 Enclosure A
Chapter 5, Appendix A

Rules of Engagement

82

CJCSI 3121.01A

15 January 2000

b. National Self-Defense. Defense of the United States, U.S. forces, and, in certain

circumstances, U.S. nationals and their property, and/or U.S. commercial assets.

National self-defense may be exercised in two ways: first, it may be exercised by

designated authority extending protection against a hostile act or demonstrated hostile

intent to U.S. nationals and their property, and/or designated U.S. commercial assets [in

this case, U.S. forces will respond to a hostile act or demonstrated hostile intent in the

same manner they would if the threat were directed against U.S. forces]; second, it may

be exercised by designated authority declaring a foreign force or terrorist(s) hostile [in

this case, individual U.S. units do not need to observe a hostile act or determine hostile

intent before engaging that force or terrorist(s)].

c. Collective Self-Defense. The act of defending designated non-U.S. forces, and/or

designated foreign nationals and their property from a hostile act or demonstrated hostile

intent. Unlike national self-defense, the authority to extend U.S. protection to designated

non-U.S. forces, foreign nationals and their property may not be exercised below the

NCA level. Similar to unit self-defense and the extension of U.S. forces protection to

U.S. nationals and their property and/or commercial assets, the exercise of collective selfdefense must be based on an observed hostile act or demonstrated hostile intent.

d. Unit Self-Defense. The act of defending a particular U.S. force element, including

individual personnel thereof, and other U.S. forces in the vicinity, against a hostile act or

demonstrated hostile intent.

e. Individual Self-Defense. The inherent right to use all necessary means available

and to take all appropriate actions to defend oneself and U.S. forces in ones vicinity

from a hostile act or demonstrated hostile intent is a unit of self-defense. Commanders

have the obligation to ensure that individuals within their respective units understand and

are trained on when and how to use force in self-defense.

f. Elements of Self-Defense. Application of force in self-defense requires the

following two elements:

(1) Necessity. Exists when a hostile act occurs or when a force or terrorists

exhibits hostile intent.

(2) Proportionality. Force used to counter a hostile act or demonstrated hostile

intent must be reasonable in intensity, duration, and magnitude to the perceived or

A-4 Enclosure A
Chapter 5, Appendix A

Rules of Engagement

83

CJCSI 3121.01A

15 January 2000

demonstrated threat based on all facts known to the commander at the time (see Glossary

for amplification).

g. Hostile Act. An attack or other use of force against the United States, U.S. forces,

and, in certain circumstances, U.S. nationals, their property, U.S. commercial assets,

and/or other designated non-U.S. forces, foreign nationals and their property. It is also

force used directly to preclude or impede the mission and/or duties of U.S. forces,

including the recovery of U.S. personnel and vital U.S. Government property (see

Glossary for amplification).

h. Hostile Intent. The threat of imminent use of force against the United States, U.S.

forces, and in certain circumstances, U.S. nationals, their property, U.S. commercial

assets, and/or other designated non-U.S. forces, foreign nationals and their property.

Also, the threat of force to preclude or impede the mission and/or duties of U.S. forces,

including the recovery of U.S. personnel or vital USG property (see Glossary for

amplification).

i. Hostile Force. Any civilian, paramilitary, or military force or terrorist(s), with or

without national designation, that has committed a hostile act, exhibited hostile intent, or

has been declared hostile by appropriate U.S. authority.

6. Declaring Forces Hostile. Once a force is declared hostile by appropriate authority,

U.S. units need not observe a hostile act or a demonstration of hostile, intent before

engaging that force. The responsibility for exercising the right and obligation of national

self-defense and as necessary declaring a force hostile is a matter of the utmost

importance. All available intelligence, the status of international relationships, the

requirements of international law, an appreciation of the political situation, and the

potential consequences for the United States must be carefully weighed. The exercise of

the right and obligation of national self-defense by competent authority is separate from

and in no way limits the commanders right and obligation to exercise unit self-defense.

The authority to declare a force hostile is limited as amplified in Appendix A of this

Enclosure.

7. Authority to Exercise Self-Defense

a. National Self-Defense. The authority to exercise national self-defense is outlined

in Appendix A of this Enclosure.

A-5 Enclosure A
Chapter 5, Appendix A

Rules of Engagement

84

CJCSI 3121.01A

15 January 2000

b. Collective Self-Defense. Only the NCA may authorize the exercise of collective

self-defense.

c. Unit Self-Defense. A unit commander has the authority and obligation to use all

necessary means available and to take all appropriate actions to defend the unit, including

elements and personnel, or other U.S. forces in the vicinity, against a hostile act or

demonstrated hostile intent. In defending against a hostile act or demonstrated hostile

intent, unit commanders will use only that degree of force necessary to decisively counter

the hostile act or demonstrated hostile intent and to ensure the continued protection of

U.S. forces (see subparagraph 8a of this enclosure for amplification).

d. Individual Self-Defense. Commanders have the obligation to ensure that

individuals within their respective units are trained on and understand when and how to

use force in self-defense.

8. Action in Self-Defense

a. Means of Self-Defense. All necessary means available and all appropriate actions

may be used in self-defense. The following guidelines apply for individual, unit, national,

or collective self-defense:

(1) Attempt to De-Escalate the Situation. When time and circumstances permit,

the hostile force should be warned and given the opportunity to withdraw, or cease

threatening actions (see Appendix A of this Enclosure for amplification).

(2) Use Proportional Force -- Which May Include Nonlethal Weapons -- to

Control the Situation. When the use of force in self-defense is necessary, the nature,

duration, and scope of the engagement should not exceed that which is required to

decisively counter the hostile act or demonstrated hostile intent and to ensure the

continued protection of U.S. forces or other protected personnel or property.

(3) Attack to Disable or Destroy. An attack to disable or destroy a hostile force is

authorized when such action is the only prudent means by which a hostile act or

demonstration of hostile intent can be prevented or terminated. When such conditions

exist, engagement is authorized only while the hostile force continues to commit hostile

acts or exhibit hostile intent.

A-6 Enclosure A
Chapter 5, Appendix A

Rules of Engagement

85

CJCSI 3121.01A

15 January 2000

b. Pursuit of Hostile Forces. Self-defense includes the authority to pursue and

engage hostile forces that continue to commit hostile acts or exhibit hostile intent.

c. Defending U.S. Nationals, Property, and Designated Foreign Nationals

(1) Within a Foreign Nations U.S.-Recognized Territory or Territorial Airspace.

The foreign nation has the principal responsibility for defending U.S. nationals and

property within these areas (see Appendix A of this Enclosure for amplification).

(2) At Sea. Detailed guidance is contained in Appendix A to Enclosure B.

(3) In International Airspace. Protecting civil aircraft in international airspace is

principally the responsibility of the nation of registry. Guidance for certain cases of

actual or suspected hijacking of airborne U.S. or foreign civil aircraft is contained in

CJCSI 3610.01, 31 July 1997, Aircraft Piracy and Destruction of Derelict Airborne

Objects.

(4) In Space. Military or civilian space systems such as communication satellites

or commercial earth-imaging systems may be used to support a hostile action. Attacking

third party or civilian space systems can have significant political and economic

repercussions. Unless specifically authorized by the NCA, commanders may not conduct

operations against space-based systems or ground and link segments of space systems.

Detailed guidance is contained in Enclosure E.

(5) Piracy. U.S. warships and aircraft have an obligation to repress piracy on or

over international waters directed against any vessel, or aircraft, whether U.S. or foreign

flagged and are authorized to employ all means necessary to repress piratical acts. For

ships and aircraft repressing an act of piracy, the right and obligation of self-defense

extends to persons, vessels, or aircraft assisted. If a pirate vessel or aircraft fleeing from

pursuit proceeds into the territorial sea, archipelagic waters, or superjacent airspace of

another country, every effort should be made to obtain the consent of the coastal state

prior to continuation of the pursuit.

d. Operations Within or in the Vicinity of Hostile Fire or Combat Zones Not

Involving the United States

A-7 Enclosure A
Chapter 5, Appendix A

Rules of Engagement

86

CJCSI 3121.01A

15 January 2000

(1) U.S. forces should not enter, or remain in, a zone in which hostilities (not

involving the United States) are imminent or occurring between foreign forces unless

directed by proper authority.

(2) If a force commits a hostile act or exhibits hostile intent against U.S. forces in

a hostile fire or combat zone, the commander is obligated to act in unit self-defense in

accordance with SROE guidelines.

e. Right of Assistance Entry

(1) Ships, or under certain circumstances aircraft, have the right to enter a foreign

territorial sea or archipelagic waters and corresponding airspace without the permission

of the coastal or island state to engage in legitimate efforts to render emergency

assistance to those in danger or distress from perils of the sea.

(2) Right of Assistance Entry extends only to rescues where the location of those

in danger is reasonably well known. It does not extend to entering the territorial sea,

archipelagic waters, or territorial airspace to conduct a search.

(3) For ships and aircraft rendering assistance on scene, the right and obligation of

self-defense extends to and includes persons, vessels, or aircraft being assisted. The right

of self-defense in such circumstances does not include interference with legitimate law

enforcement actions of a coastal nation. However, once received onboard the assisting

ship or aircraft, persons assisted will not be surrendered to foreign authority unless

directed by the NCA.

(4) Further guidance for the exercise of the right of assistance entry is contained in

CJCS Instruction 2410.01A, 23 April 1997, Guidance for the Exercise of Right of

Assistance Entry.

A-8 Enclosure A
Chapter 5, Appendix A

Rules of Engagement

87

CJCSI 3121.01A

15 January 2000

ENCLOSURE L

RULES OF ENGAGEMENT PROCESS

1. Purpose and Scope. Developing and implementing effective ROE are critical to

mission accomplishment. This enclosure provides guidelines for incorporating ROE

development into the crisis action planning (CAP) and deliberate planning processes by

commanders and staff at all levels. All supplemental measures not specifically requiring

NCA or CINC approval (001-199) are available for use by commanders unless expressly

withheld by higher authority.

2. ROE Development

a. General. ROE are an operational issue and must directly support the operational

concept. Once assigned a mission, the commander and staff must incorporate ROE

considerations into mission planning. Operations planning and ROE development are

parallel and collaborative processes that require extensive integration and may require

development and request of supplemental measures requiring NCA or CINC approval for

mission accomplishment. The issues addressed throughout the planning process will

form the basis for supplemental ROE requests requiring NCA or CINC approval in

support of a selected course of action (COA). ROE development is a continuous process

that plays a critical role in every step of CAP and deliberate planning. Normally, the

Director for Operations (J-3) is responsible for developing ROE during CAP while the

Director for Strategic Plans and Policies (J-5) develops ROE for deliberate planning.

The Staff Judge Advocate (SJA) assumes the role of principal assistant to the J-3 or J-5

in developing and integrating ROE into operational planning.

b. Task Steps. The following steps can be used to assist staffs in developing and

implementing ROE during planning.

(1) Mission Analysis

(a) Review the SROE, including the CINC theater-specific ROE contained in

Enclosure K.

(b) Review supplemental ROE measures already approved by higher

headquarters, and determine existing constraints and restraints.

L-1 Enclosure L
Chapter 5, Appendix A

Rules of Engagement

88

CJCSI 3121.01A

15 January 2000

(c) Review higher headquarters planning documents for political, military, and

legal considerations that affect ROE. Consider tactical or strategic limitations on the use

of force imposed by:

l. Higher headquarters in the initial planning documents.

2. International law, including the UN Charter.

3. U.S. domestic law and policy.

4. HN law and bilateral agreements with the United States.

5. For multinational or coalition operations:

a. Foreign forces ROE, NATO ROE, or other use of force policies.

b. UN resolutions or other mission authority.

(d) Desired End State. Assess ROE requirements throughout preconflict,

deterrence, conflict, and postconflict phases of an operation. ROE should support

achieving the desired end state.

(2) Planning Guidance

(a) Review commanders planning guidance for considerations affecting ROE

development.

(b) Ensure ROE considerations derived from commanders planning guidance

are consistent with those derived from initial planning documents.

(3) Warning Orders. Incorporate instructions for developing ROE in warning

orders, as required. Contact counterparts at higher, lower, and adjacent headquarters, and

establish the basis for concurrent planning.

(4) COA Development. Determine ROE requirements to support the operational

concept of each proposed COA.

L-2 Enclosure L
Chapter 5, Appendix A

Rules of Engagement

89

CJCSI 3121.01A

15 January 2000

(5) COA Analysis

(a) Analyze ROE during the wargaming process. In particular, assess each

COA to identify any ROE normally retained by a higher echelon (NCA, CINC) that must

be delegated to subordinate commanders. Identify ROE required by decision and

decisive points.

(b) Refine ROE to support synchronizing each phase of proposed COAs.

(6) COA Comparison and Selection. Consider ROE during the COA comparison

process.

(7) Commanders Estimate. Identify NCA-level ROE required to support

recommended COA.

(8) Preparation of Operations Order (OPORD).

(a) Prepare and submit requests for all supplemental ROE measures in

accordance with Enclosure A. Normally, the OPORD should not be used to request

supplemental measures.

(b) Prepare the ROE appendix of the OPORD in accordance with CJCSM

3122.03 (JOPES Volume II: Planning Formats and Guidance). The ROE appendix may

include supplemental ROE measures that are already approved.

(c) Include guidance for disseminating approved ROE. Consider:

1. Developing plain language ROE.

2. Creating ROE cards.

3. Issuing special instructions (SPINS).

4. Distributing ROE to multinational forces or coalitions.

5. Issuing ROE translations (for multinational forces or coalitions).

L-3 Enclosure L
CJCSI 3121.01A

15 January 2000

(9) ROE Request and Authorization Process. Commanders will request and

authorize ROE, as applicable, in accordance with Enclosure A of this enclosure.

(10) ROE Control. Commanders and their staffs must continuously analyze

ROE and recommend modifications required to meet changing operational parameters.

The ROE process must anticipate changes in the operational environment and modify

supplemental measures to support the assigned mission.

(a) Ensure that only the most current ROE serial is in use throughout the force.

(b) Catalog all supplemental ROE requests and approvals for ease of reference.

(c) Monitor ROE training.

(d) Modify ROE as required. Ensure that a timely, efficient staff process exists

to respond to requests for and authorizations of ROE changes.

3. Establish ROE Planning Cell. Commanders may use a ROE Planning Cell to assist in

developing ROE. The following guidelines apply:

a. The J-3 or J-5 is responsible for the ROE Planning Cell and, assisted by the SJA,

developing supplemental ROE.

b. ROE are developed as an integrated facet of crisis action and deliberate planning

and are a product of the Operations Planning Group (OPG) or Joint Planning Group

(JPG), or equivalent staff mechanism.

c. ROE Planning Cell can be established at any echelon to refine ROE derived from

the OPG or JPG planning and to produce ROE requests and/or authorizations.

(1) The J-3 or J-5 is responsible for the ROE Cell.

(2) The SJA assists the J-3 and J-5.

L-4 Enclosure L

Chapter 5, Appendix A

Rules of Engagement

90
APPENDIX B

SAMPLE ROE CARDS

Peacekeeping: UNMIH (Haiti - 31 March 1995)

UNITED NATIONS MISSION IN HAITI (UNMIH)

PEACEKEEPING OPERATION

31 March 95

MILITARY FORCE ROE

NOTHING IN THIS ROE LIMITS YOUR RIGHT TO TAKE ALL NECESSARY AND

APPROPRIATE ACTION TO DEFEND YOURSELF, YOUR UNIT, AND OTHER

UNMIH PERSONNEL.

1. Treat all persons with dignity and respect.

2. Use of force must be proportionate to the level of perceived threat.

3. If possible, warnings should be provided prior to the use of force.

4. Never use more force than the minimum necessary to carry out your duties or remove a

threat to UNMIH.

5. In the event of attack or threat of imminent attack, use necessary force up to and including

deadly force for self defense and defense of UNMIH personnel, and installations

designated as key by the Force Commander.

6. UNMIH Forces may intervene to prevent death or grievous bodily harm of innocent

civilians at the hands of an armed person or group.

7. When deadly force is employed, targets will be engaged with observed, deliberately aimed

fire to avoid collateral damage. (If a weapon is fired, follow ROE reporting

requirements.)

8. Search, apprehension, and disarmament are authorized when acting in self defense or to

enforce the rules above. Persons apprehended will be detained using minimal force and

turned over to appropriate Haitian authorities as soon as possible.

9. Use of chemical riot control agents is an authorized form of force.

PROCEDURES AFTER FIRING A WEAPON

1. First aid will be given as soon as possible when such aid can be given without endangering

lives.

2. Record details of the incident, to include:

- date, time, and place of firing.

- unit and personnel involved.

- the events leading up to the firing.

- why UNMIH personnel opened fire.

- shot or what was fired on.

- the weapons fired.

- the apparent results of the firing.

3. Report above information and current situation through the UN chain of command to the

Force Commander as soon as possible.

Chapter 5, Appendix B

Rules of Engagement

91
Peacekeeping: UNOSOM (Somalia - 1995 )

JTF UNITED SHIELD

Rules of Engagement Ser #1 11 Jan 95

NOTHING IN THESE RULES OF ENGAGEMENT LIMITS YOUR

RIGHT TO TAKE APPROPRIATE ACTION TO DEFEND

YOURSELF AND YOUR UNIT

A. You have the right to use deadly force in response to a hostile act or

where there is clear indication of hostile intent.

B. Hostile fire may be returned effectively and promptly to stop a hostile act.

C. When U.S. forces are attacked by unarmed hostile elements, mobs

and/or rioters, U.S. forces should use the minimum force necessary

under the circumstances and proportional to the threat.

D. Inside designated security zones, once a hostile act or hostile act is

demonstrated, you have the right to use minimum force to prevent

armed individual/crew-served weapons from endangering

U.S./UNOSOM II forces. This includes deadly force.

E. Detention of civilians is authorized for security reasons or in self defense.

Remember

1. The United States is not at war

2. Treat all persons with dignity and respect

3. Use minimum force to carry out mission

4. Always be prepared to act in self defense

Chapter 5, Appendix B

Rules of Engagement

92
Peacekeeping: IFOR (Bosnia, January 1996)

NATO UNCLASSIFIED

IFOR - OPERATION DECISIVE ENDEAVOR

Commanders Guidance on Use of Force

MISSION

Your mission is to stabilize and consolidate the peace in Bosnia and Herzegovina

SELF DEFENSE

1. You have the right to use force (including authorized weapons as necessary) in

self defense.

2. Use only the minimum force necessary to defend yourself.

GENERAL RULES

1. Use the minimum force necessary to accomplish your mission.

2. Hostile forces/belligerents who want to surrender will not be harmed. Disarm

them and turn them over to your superiors.

3. Treat everyone, including civilians and detained hostile forces/belligerents,

humanely.

4. Collect and care for the wounded, whether friend or foe.

5. Respect private property. Do not steal. Do not take war trophies.

6. Prevent and report all suspected violations of the Law of Armed Conflict to

superiors.

CHALLENGING AND WARNING SHOTS

1 If the situation permits, issue a challenge:

In English: IFOR! STOP OR I WILL FIRE!

or in Serbo-Croat: IFOR! STANI ILI PUCAM!

Pronounced as: IFOR! STANI EEL LEE PUTSAM!

2. If the person fails to halt, you may be authorized by the on-scene commander or

by standing orders to fire a warning shot.

NATO UNCLASSIFIED

Front Side

Chapter 5, Appendix B

Rules of Engagement

93
Peacekeeping: IFOR (Bosnia, January 1996)

NATO UNCLASSIFIED

OPENING FIRE

1. You may open fire only if you, friendly forces, or persons or property under

your protection are threatened with deadly force. This means:

a. You may open fire against an individual who fires or alms his weapon at

you, friendly forces, or persons with designated special status under your

protection.

b. You may open fire against an individual who plants, throws, or prepares to

throw an explosive or incendiary device at you, friendly forces, or persons

with designated special status or property with designated special status

under your protection.

c. You may open fire against an individual who deliberately drives a vehicle

at you, friendly forces, persons with a designated special status or property

with designated special status under your protection.

2. You may also fire against an individual who attempts to take possession of

friendly force weapons, ammunition, or property with designated special status,

and there is no other way of avoiding this.

MINIMUM FORCE

1. If you have to open fire, you must:

- Fire only aimed shots, and

- Fire no more round as necessary, and

- Take all reasonable efforts not to unnecessarily destroy property, and

- Stop firing as soon as the situation permits.

2. You may not intentionally attack civilians or property that is exclusively civilian

or religious in character, except if the property is being used for military purpose

and engagement is authorized by your commander.

NATO UNCLASSIFIED

REVERSE SIDE

Chapter 5, Appendix B

Rules of Engagement

94
Peacekeeping: SFOR (Bosnia, December 1996)

NATO UNCLASSIFIED

SFOR - OPERATION CONSTANT GUARD

Commanders Guidance on Use of Force

MISSION

Your mission is to stabilize and consolidate the peace in Bosnia and Herzegovina.

SELF DEFENSE

1. You have the right to use force (including authorized weapons as necessary) in

self defense.

2. Use only the minimum force necessary to defend yourself.

GENERAL RULES

1. Use the minimum force necessary to accomplish your mission.

2. Hostile forces/belligerents who want to surrender will not be harmed. Disarm

them and turn them over to your superiors.

3. Treat everyone, including civilians and detained hostile forces/belligerents,

humanely.

4. Collect and care for the wounded, whether friend or foe.

5. Respect private property. Do not steal. Do not take war trophies.

6. Prevent and report all suspected violations of the Law of Armed Conflict to

superiors.

CHALLENGING AND WARNING SHOTS

1 If the situation permits, issue a challenge:

In English: SFOR! STOP OR I WILL FIRE!

or in Serbo-Croat: SFOR! STANI ILI PUCAM!

Pronounced as: SFOR! STANI EEL LEE PUTSAM!)

2. If the person fails to halt, you may be authorized by the on-scene commander or

by standing orders to fire a warning shot.

NATO UNCLASSIFIED

FRONT SIDE

Chapter 5, Appendix B

Rules of Engagement

95
Peacekeeping: SFOR (Bosnia, December 1996)

NATO UNCLASSIFIED

OPENING FIRE

1. You may open fire only if you, friendly forces, or persons or property under

your protection are threatened with deadly force. This means:

a. You may open fire against an individual who fires or alms his weapon at

you, friendly forces, or persons with designated special status under your

protection.

b. You may open fire against an individual who plants, throws, or prepares to

throw an explosive or incendiary device at you, friendly forces, or persons

with designated special status or property with designated special status

under your protection.

c. You may open fire against an individual who deliberately drives a vehicle

at you, friendly forces, persons with a designated special status or property

with designated special status under your protection.

2. You may also fire against an individual who attempts to take possession of

friendly force weapons, ammunition, or property with designated special status,

and there is no other way of avoiding this.

3. You may use minimum force, including opening fire, against an individual who

unlawfully commits, or is about to commit, an act which endangers Life, or is

likely to cause serious bodily harm, in circumstances where there is no other

way to prevent the act.

MINIMUM FORCE

1. If you have to open fire, you must:

- Fire only aimed shots, and

card.

This para. 3. Is the

key difference

between the

previous IFOR card

and this, the SFOR

- Fire no more rounds than necessary, and

- Take all reasonable efforts not to unnecessarily destroy property, and

- Stop firing as soon as the situation permits.

2. You may not intentionally attack civilians or property that is exclusively civilian

or religious in character, except if the property is being used for military purpose

and engagement is authorized by your commander.

NATO UNCLASSIFIED

REVERSE SIDE

Chapter 5, Appendix B

Rules of Engagement

96
Peacekeeping: KFOR (Albania, April 1999)

TASK FORCE HAWK ROE CARD

(The contents of this card are unclassified for dissemination to soldiers)

NOTHING IN THESE RULES PROHIBITS OUR FORCES FROM EXERCISING THEIR

INHERENT RIGHT OF SELF DEFENSE.

1. AT ALL TIMES, USE NECESSARY FORCE, UP TO AND INCLUDING DEADLY FORCE:

a. In response to an immediate threat of serious bodily injury or death against yourself, other

NATO Forces, or the Friendly Forces of other nations.

b. To prevent the immediate theft, damage, or destruction of: firearms, ammunition, explosives

or property designated as vital to national security.

2. AT ALL TIMES, USE FORCE LESS THAN DEADLY FORCE:

a. In response to a threat less than serious bodily injury or death against yourself, other NATO

Forces, or the Friendly Forces of other nations.

b. To prevent the immediate theft, damage, or destruction of any NATO military property.

3. WHEN THE SITUATION PERMITS, USE A GRADUATED ESCALATION OF FORCE, TO

INCLUDE:

a. Verbal warnings to Halt or ndalOHnee

b. Show your weapons.

c. Show of force to include riot control formations.

d. Non-lethal physical force.

e. If necessary to stop an immediate threat of serious bodily harm or death, engage the threat

with deliberately aimed shots until it is no longer a threat.

4. SOLDIERS MAY SEARCH, DISARM, AND DETAIN PERSONS AS REQUIRED TO

PROTECT THE FORCE. DETAINEES WILL BE TURNED OVER TO APPROPRIATE HOST

NATION AUTHORITIES ASAP.

5. WARNING SHOTS ARE STRICTLY PROHIBITED.

6. TREAT ALL EPWs WITH DIGNITY AND RESPECT. RESPECT THE CULTURAL AND

RELIGIOUS BELIEFS OF ALL EPWs.

7. DO NOT RETAIN WAR TROPHIES OR ENEMY SOVENIRS FOR YOUR PERSONAL USE.

8. DO NOT ENTER ANY MOSQUE, OR OTHER ISLAMIC RELIGIOUS SITE UNLESS

NECESSARY FOR MISSION ACCOMPLISHMENT AND DIRECTED BY YOUR

COMMANDER.

9. IMMEDIATELY REPORT ANY VIOLATIONS OF THE LAW OF WAR, OR THE RULES OF

ENGAGEMENT TO YOUR CHAIN OF COMMAND, MPs, CHAPLAIN, IG, OR JAG

OFFICER REGARDLESS OF WHETHER FRIENDLY FORCES OR ENEMY FORCES

COMMITTED THE SUSPECTED VIOLATION.

10. THE AMOUNT OF FORCE AND TYPE OF WEAPONS USED SHOULD NOT SURPASS

THAT AMOUNT CONSIDERED NECESSARY FOR MISSION ACCOMPLISHMENT.

Chapter 5, Appendix B

Rules of Engagement

97
Peacekeeping: KFOR (Kosovo, June 1999)

KFOR RULES OF ENGAGEMENT FOR USE IN KOSOVO

SOLDIER'S CARD

To be carried at all times.

MISSION. Your mission is to assist in the implementation of and to help ensure

compliance with a Military Technical Agreement (MTA) in Kosovo.

SELF-DEFENSE.

a. You have the right to use necessary and proportional force in self-defense.

b. Use only the minimum force necessary to defend yourself.

GENERAL RULES.

a. Use the minimum force necessary to accomplish your mission.

b. Hostile forces/belligerents who want to surrender will not be harmed. Disarm them

and turn them over to your superiors.

c. Treat everyone, including civilians and detained hostile forces/belligerents, humanely.

d. Collect and care for the wounded, whether friend or foe.

e. Respect private property. Do not steal. Do not take "war trophies".

f. Prevent and report all suspected violations of the Law of Armed Conflict to superiors.

CHALLENGING AND WARNING SHOTS.

a. If the situation permits, issue a challenge:

- In English: "NATO! STOP OR I WILL FIRE!"

- Or in Serbo-Croat: "NATO! STANI ILI PUCAM!"

- (Pronounced as: "NATO! STANI ILI PUTSAM!)

- Or in Albanian: "NATO! NDAL OSE UNE DO TE QELLOJ!

- (Pronounced as: "NATO! N'DAL OSE UNE DO TE CHILLOY!)

b. If the person fails to halt, you may be authorized by the on-scene commander or by

standing orders to fire a warning shot.

FRONT SIDE

Chapter 5, Appendix B

Rules of Engagement

98
Peacekeeping: SFOR (Bosnia, December 1996)

OPENING FIRE.

a. You may open fire only if you, friendly forces or persons or property under your

protection are threatened with deadly force. This means:

(1) You may open fire against an individual who fires or aims his weapon at, or

otherwise demonstrates an intent to imminently attack, you ,friendly forces, or

Persons with Designated Special Status (PDSS) or property with designated

special status under your protection.

(2) You may open fire against an individual who plants, throws, or prepares to throw,

an explosive or incendiary device at, or otherwise demonstrates an intent to

imminently attack you, friendly forces, PDSS or property with designated special

status under your protection.

(3) You may open fire against an individual deliberately driving a vehicle at you,

friendly forces, or PDSS or property with designated special status.

b. You may also fire against an individual who attempts to take possession of friendly

force weapons, ammunition, or property with designated special status, and there is no

way of avoiding this.

c. You may use minimum force, including opening fire, against an individual who

unlawfully commits or is about to commit an act which endangers life, in

circumstances where there is no other way to prevent the act.

MINIMUM FORCE.

a. If you have to open fire, you must:

- Fire only aimed shots; and

- Fire no more rounds than necessary; and

- Take all reasonable efforts not to unnecessarily destroy property; and

- Stop firing as soon as the situation permits.

b. You may not intentionally attack civilians, or property that is exclusively civilian or

religious in character, except if the property is being used for military purposes or

engagement is authorized by the commander.

REVERSE SIDE

Chapter 5, Appendix B

Rules of Engagement

99
Armed Conflict: DESERT STORM (Iraq, 1991)

DESERT STORM

RULES OF ENGAGEMENT

ALL ENEMY MILITARY PERSONNEL AND VEHICLES TRANSPORTING THE

ENEMY OR THEIR SUPPLIES MAY BE ENGAGED SUBJECT TO THE

FOLLOWING RESTRICTIONS:

A. Do not engage anyone who has surrendered, is out of battle due to sickness or wounds, is

shipwrecked, or is an aircrew member descending by parachute from a disabled aircraft.

B. Avoid harming civilians unless necessary to save U.S. lives. Do not fire into civilian populated

areas or buildings which are not defended or being used for military purposes.

C. Hospitals, churches, shrines, schools, museums, national monuments, and other historical or

cultural sites will not be engaged except in self defense.

D. Hospitals will be given special protection. Do not engage hospitals unless the enemy uses the

hospital to commit acts harmful to U.S. forces, and then only after giving a warning and

allowing a reasonable time to expire before engaging, if the tactical situation permits.

E. Booby traps may be used to protect friendly positions or to impede the progress of enemy

forces. They may not be used on civilian personal property. They will be recovered and

destroyed when the military necessity for their use no longer exists.

F. Looting and the taking of war trophies are prohibited.

G. Avoid harming civilian property unless necessary to save U.S. lives. Do not attack traditional

civilian objects, such as houses, unless they are being used by the enemy for military purposes

and neutralization assists in mission accomplishment.

H. Treat all civilians and their property with respect and dignity. Before using privately owned

property, check to see if publicly owned property can substitute. No requisitioning of civilian

property, including vehicles, without permission of a company level commander and without

giving a receipt. If an ordering officer can contract the property, then do not requisition it.

I. Treat all prisoners humanely and with respect and dignity.

J. ROE Annex to the OPLAN provides more detail. Conflicts between this card and the OPLAN

should be resolved in favor of the OPLAN.

REMEMBER

1. FIGHT ONLY COMBATANTS.

2. ATTACK ONLY MILITARY TARGETS.

3. SPARE CIVILIAN PERSONS AND OBJECTS.

4. RESTRICT DESTRUCTION TO WHAT YOUR MISSION REQUIRES.

Chapter 5, Appendix B

Rules of Engagement

100
CHAPTER 6

ADMINISTRATIVE LAW

I. Conscientious Objectors III. Reports of Survey

II. Gifts IV. Administrative Investigations

I. CONSCIENTIOUS OBJECTORS

References

- 50 U.S.C. App. § 456(j) (West 1990) (the Military Selective Service Act: Deferments and Exemptions from

Training and Service).

- DoD Dir. 1300.6, Conscientious Objection (20 Aug 1971, w/C4, 11 Sep 75); 32 CFR Part 75.

- Dept of Army, Reg. 600-43, Conscientious Objection (1 Aug 83, w/ Ch. 1, 15 May 1998).

- Dept of Army, Reg. 614-30, Assignments, Details and Transfers: Overseas Service (1 Apr 88).

- Marine Corps Order 1306.16E (21 Nov 86); Navy MILPERSMAN 1860120 & 3620200; Air Force Inst 36-3204

(15 Jul 94).

- MILPERSMAN 1900-020, CONVENIENCE OF THE GOVERNMENT SEPARATION BASED ON CONSCIENTIOUS

OBJECTION (ENLISTED AND OFFICERS) (JAN. 2000).

Members of the Armed Forces who have a firm, fixed and sincere objection to participation in war in any form or the

bearing of arms, by reason of religious training and belief may apply for Conscientious Objector (CO) status. Supreme

Court decisions have expanded religious training and belief to include any moral or ethical belief system held with the

strength of conventional religious convictions.

The two classes of COs are:

1. Class 1-O: A service member who, by reason of conscientious objection, sincerely objects to participation of

any kind in war in any form.

2. Class 1-A-O: A service member who, by reason of conscientious objection, sincerely objects to participation as

a combatant in war in any form, but whose convictions permit military service in a non-combatant status.

Neither category of CO status will be granted when requests are:

- Based on a CO claim that existed, but was not presented, prior to notice of induction, enlistment, or appointment.

Claims arising out of experiences before entering military service, however, that did not become fixed until after entry,

will be considered.

- Based solely upon policy, pragmatism, or expediency.

- Based on objection to a certain war.

- Based upon insincere beliefs.

- Based solely on CO claim that was denied by the Selective Service System.

The applicant for CO status must prove by clear and convincing evidence that:

1) the basis of the claim satisfies the definition and criteria for CO; and

2) his or her belief is honest, sincere, and deeply held.

Chapter 6

Administrative Law

101
Once the soldier makes this prima facie showing, the military service must grant the application unless the

administrative record shows affirmative written evidence supplying a basis in fact for denial of the application. A 1-0

applicant cannot be granted 1-A-0 status as a compromise, nor can 1-A-0 applicants be discharged (AR 600-43; but see

32 CFR Part 75.7b).

The applicant will be counseled by his or her commander and interviewed by a chaplain and psychiatrist (or other

medical officer). The commanders recommendations and the chaplains and psychiatrists findings are forwarded with

the application to the Special Court-Martial Convening Authority, who appoints an investigating officer (IO). The IO

conducts a hearing at which the applicant may appear and present evidence. The IO prepares a written report, and

forwards it to the General Court-Martial Convening Authority (GCMCA). Army GCMCAs may approve 1-A-O status.

The GCMCA must forward to HQDA any applications for 1-O status and any applications for 1-A-O status upon which

he or she recommends disapproval. Approval authorities for other services vary.

A soldier who receives individual orders for reassignment or who has departed his unit in compliance with individual

reassignment orders may not apply for CO status until he arrives at the new duty station. This policy does not apply to

soldiers who are TDY en route for a period in excess of 8 weeks. These soldiers may apply at their TDY duty station.

On the other hand, a soldier who is assigned or attached to a unit that has unit reassignment instructions (i.e., the unit

is deploying) may submit an application for conscientious objector status. The unit must process the application as

operational and mission requirements permit. The soldier must continue to prepare for deployment and will deploy with

the unit unless the soldiers application has been approved. If the soldiers application has been forwarded to the DA

Conscientious Objector Review Board (DACORB), the GCMCA may excuse the soldier from deployment. Contact the

DACORB and determine the status of the application before the GCMCA excuses the soldier (DACORB: DSN 221-8671

/ 8672 or commercial (703) 325-8671 / 8672).

In the case of RC soldiers, not on active duty, the submission of an application after publication of orders to report

for AD or ADT, will not serve as a basis to delay reporting (AR 600-43, para. 2-10). If the soldier applies for CO status

before AD or ADT orders are issued and the soldiers application cannot be processed before the soldiers reporting date,

the soldier must comply with the orders (the application must, however, be sent to the proper Active Army GCMCA for

processing). Members of the IRR may submit CO applications at their mobilization stations (AR 600-43, I01).

Submission will not preclude further assignment or deployment during processing of the application.

II. GIFTS

First, determine whether the gift is to the government (DoD/Army) or to an individual.

Gifts To Dod And The Army

Gifts to the Services are governed by statute and implementing regulations. The two primary gift statutes that

authorize the Army to accept gifts are 10 USC §§ 2601 & 2608. For the Army, AR 1-100 implements § 2601 and allows

acceptance of gifts to be used for a school, hospital, library, museum, cemetery, or other similar institution. A local

commander can accept unconditional gifts valued up to $1,000. Conditional gifts or gifts valued over $1,000 may be

accepted only by the Secretary of the Army. POC is Mr. Thomas Feazell, (703) 325-4530, Commander, PERSCOM,

ATTN: TAPC-PDO-IP, Alexandria, VA, 22332-0474. Also, AR 1-101 addresses gifts given to the Army for distribution

to individuals. This regulation requires the donor to pay transportation costs and prohibits Army endorsement of the

donor. The Air Force does not limit § 2601 to institutions similar to those listed in the statute and has more detailed

delegations of gift acceptance authority than the Army. See AFI 51-601, Gifts to Dept of the Air Force. See also

SECNAVINST 4001.2G, Acceptance of Gifts.

Title 10, Section 2608, is the broadest gift acceptance authority for the Army. It was passed shortly after Operation

Desert Shield/Storm and applies to all of DoD. The Army has not implemented it by regulation. DoD has implemented

this section in the Financial Management Regulation, DoD 7000.14-R, Volume 12, Chapter 3. The statute allows DoD to

accept money or property from any person, and services from a foreign government or international organization, for use

in any DoD program. DoD has delegated authority to accept gifts of property to Service Secretaries. All gifts of money

must be processed through the DoD Comptroller. Additionally, all gifts of money must be deposited in the Defense

Chapter 6

Administrative Law

102
Cooperation Account and cannot be expended until reappropriated by the Congress. The Air Force has implemented this

statute, in AFI 51-601, Gifts to Dept of the Air Force, Chapter 4.

In the Army, commanders have much more local gift acceptance authority if the command accepts the gift for its

nonappropriated fund instrumentalities or Installation Morale, Welfare, and Recreation Fund. AR 215-1, para 7-39,

authorizes NAFI fund managers to accept gifts to MWR up to $5,000; local commanders up to $25,000; and MACOM

commanders up to $50,000. Gifts over $50,000 must be processed through the Army Community and Family Support

Center, Alexandria, Virginia. Military personnel may not solicit gifts for the NAFI but may make the NAFIs needs

known in response to inquiries from prospective donors. See also, AFI 34-201; and SECNAVINST 4001.2G.

Gifts To Individuals

The Joint Ethics Regulation (JER), DoD 5500.7-R, Chapter 2, generally governs acceptance of gifts to individuals in

their personal capacities. The JER may not be supplemented. (The JER and the JAG Schools Ethics Deskbook may be

found in the SOC Database on JAGCNet as well as the DoD SOCO web site,

http://www.defenselink.mil/dodgc/defense_ethics/.) The primary issue regarding gifts to individuals is determining who

is the gift-giver (and who is paying for the gift). Different rules apply depending upon whether the gift is from a foreign

government, from an outside source (outside the Federal Government), or from fellow soldiers or DoD/DA civilians

(between federal employees). To avoid any problems in this area, ask your appointed Ethics Counselor for advice either

before receipt or shortly after receipt of the gift.

Gifts To Individuals From Foreign Governments

There is a general Constitutional prohibition against any federal employee receiving any gift from a foreign

government or its representatives. A gift from a foreign government includes a gift from the national, state, or local

governmental entity. Article 1, section 9 prohibits a federal employee from accepting any present or emolument from a

foreign government unless Congress authorizes. Congress has authorized, in 5 U.S.C. § 7342, the acceptance of gifts of

minimal value. Minimal value changes every three years as determined by the Consumer Price Index. Currently,

minimal value is $260. That figure will change in 2002.

The rules allow a federal employee to personally accept a gift given by a foreign governmental representative if the

gift is worth $260 or less. Each level of the foreign government (separate sovereigns) has a $260 limit. The value of the

gift is based upon the fair market value of the gift in U.S. Dollars in the United States. Fair market value can be

determined through like items sold at AAFES, from the Claims Office, or formal appraisals (which may be funded by the

command). These rules apply to foreign gifts received in foreign countries or in the U.S. To determine what is a gift,

look to 5 U.S.C. § 7342, and the DoD Directive on foreign gifts, DoDD 1005.13, and do not look to the gift

definitions contained in the Standards of Conduct rules found in the Joint Ethics Regulation. For the Armys rules

on acceptance of foreign awards and decorations, see AR 600-8-22, chapter 9; Air Force rules are at AFI 51-901;

Navy/USMC, see SECNAVINST 1650.1F, Chapter 7.

If the gift is valued at more than $260, then the employee must forward a report through the chain of command to DA

PERSCOM (for Army personnel). POC is Mr. Tom Feazell, the same POC as for Gifts to the Army (see above). (AF

POC is AFPC/DPPPRS, 550 C. St. West, Suite 12, (Attn: Ms. Garsford), Randolph AFB, 78150-4714; for Navy and

USMC, report to and deposit gifts in accordance with SECNAVINST 1650.1F, Chapter 7.) Gifts of more than $260

become government property. The employee can forward the gift with the report to PERSCOM, who will likely pass the

gift on to the General Services Administration for sale at a public auction. The employee can also forward the report

without the gift and ask that the gift, now government property which should be entered on the property books, be

retained on permanent display at the employees agency. If the employee wishes personally to retain the gift worth more

than $260, the employee may purchase the gift before it is auctioned off.

It is never inappropriate to accept a gift from a foreign government, even one valued at more than $260, when refusal

could embarrass the U.S. or could adversely affect foreign relations. In such cases, the employee should accept the gift

on behalf of the U.S. and then report the gift as discussed to PERSCOM.

Chapter 6

Administrative Law

103
There are several other variations of the rule. For multiple gifts given at a presentation ceremony, the employee may

accept those gifts whose aggregate value is $260 or less. The gift(s) which in the aggregate exceed the $260 limit may

not be kept. Gifts given to the spouse of a federal employee by a foreign official are considered to be gifts to the

employee, and gifts given by the spouse of a foreign official are considered to be gifts from the foreign official. Gifts

which are paid for by a foreign government are foreign gifts; gifts which are paid for from a foreign individuals personal

funds are not foreign gifts. For example, if the foreign employee is giving the federal employee the gift as an act of

personal friendship and the foreign employee is bearing the cost of the gift, then the foreign gift rules do not apply. In

this case, the rules regarding gifts from outside sources or gifts between employees may apply.

Gifts To Individuals From An Outside Source

Government employees may not solicit or accept a gift: (1) from a prohibited source (someone who has an interest in

the performance of official Army missions); or (2) because of the employees official position.

The test to determine if a gift is given because of the employees official position is whether the gift would have

been given if the employee had not held the status, authority or duties of his particular position. The broad prohibitions

are subject to the following.

First, the term gift does not include modest items of food and refreshments that are not offered as part of a meal.

For example, coffee and donuts are not gifts. The following are also not considered gifts: greeting cards, plaques,

trophies, prizes in contests open to the public, commercial discounts open to all, anything paid for by the Government,

anything for which market value is paid, and other similar items.

Second, several exceptions allow acceptance of otherwise prohibited gifts. The most common exception allows

acceptance of unsolicited gifts valued at $20.00 or less per source, per occasion. The cumulative value from any single

source may not exceed $50.00 during the year. Other exceptions allow acceptance of gifts: based upon an outside

relationship (i.e., family), certain broadly available discounts and awards, free attendance at certain widely-attendant

gatherings, gifts of food or entertainment in foreign areas, and others. The last exception allows an employee to accept

food, refreshments, or entertainment while in a foreign area when offered at a meal or a meeting when: (1) the value does

not exceed the Department of State per diem rate (in U.S. dollars) for the locale; (2) foreign officials are in attendance; (3)

attendance at the meal or meeting is part of the official duties of the employee and will further a U.S. mission; and (4) the

gift is paid for by a person other than a foreign government.

Third, if the above analysis allows acceptance, employees must nonetheless refuse gifts if accepting would

undermine Government integrity, e.g., gifts accepted on too frequent a basis. Employees may never use their official

position to solicit a gift and may never accept any gift in exchange for official action (illegal quid pro quo).

Gifts To Individuals From Other Federal Employees

There are general prohibitions on gifts between federal employees. An employee shall not: (1) Give a gift or solicit

a contribution for an official superior, or (2) Accept a gift from a lower-paid employee, unless the donor and recipient are

personal friends who are not in a superior-subordinate relationship. There are two exceptions to the general prohibition:

gifts on special infrequent occasions (i.e. marriage, PCS, retirement, etc.) and gifts on an occasional basis (birthdays and

holidays).

Special Infrequent Occasions. Gifts are generally limited to $300.00 in value per gift per donating group. No

member of one donating group may be a member of another donating group. Employees may not solicit more than

$10.00 from another employee. All donations must be voluntary and employees must be free to give less than the amount

requested or nothing at all. Gifts may exceed the $300 cap only in unusual occasions. In certain occasions where the

superior-subordinate relationship is terminated (retirement, resignation, transfer outside of the chain of command), gifts

may exceed $300 per donating group only if they are appropriate to the occasion, are uniquely linked to the departing

employees position or tour of duty, and commemorate the same. DA-SOCO advises that appropriate to the occasion

should generally be $300.00.

Chapter 6

Administrative Law

104
Occasional Basis. This exception includes meals at an employees home and customary gifts brought to the home

(i.e., flowers). Also included are gifts valued at $10.00 or less given on appropriate occasions, such as birthdays,

Christmas, etc. No collection of money from other employees is permissible under this exception.

Gifts To Individuals - Handling Improper Gifts

If a gift has been improperly accepted, the employee may pay the donor its market value or return the gift. With

approval, perishable items may be donated to charity, shared within the office, or destroyed. See your Ethics Counselor

as necessary.

III. REPORTS OF SURVEY

References

AR 37-1, Army Accounting and Fund Control, 30 Apr 91.

AR 600-4, Remission of Indebtedness for Enlisted Members, 1 April 1998.

AR 735-5, Policies and Procedures for Property Accountability, 31 January 1998.

DA PAM 735-5, Survey Officers Guide, 1 March 1997.

Air Force Manual 23-220, Reports of Survey of Air Force Property, 1 July 1996.

Navy Instruction 5500.4G, Reporting of Missing, Lost, Stolen, or Recovered (MLSR) Government Property, 24 June

1993.

A. INTRODUCTION - The Report of Survey, DA Form 4697, has three purposes. It documents circumstances

surrounding loss or damage to government property, serves as a voucher for adjusting property records, and

documents a charge of financial liability, or provides for relief of financial liability. Imposition of liability is a

purely administrative process that is designed to promote a high degree of care for Army property through

deterrence. It is not a punitive program - commanders should consider other administrative, nonjudicial or

judicial sanctions if damage or loss of property involves acts of misconduct.

B. REPORT OF SURVEY SYSTEM.

1. Alternatives to Reports of Survey that Commanders Should Consider.

a. Statement of Charges/Cash Collection Voucher (consolidated on DD Form 362) when liability is

admitted and the charge does not exceed one months base pay.

b. Cash sales of hand tools and organizational clothing and individual equipment.

c. Unit level commanders may adjust losses of durable hand tools up to $100 per incident, if no

negligence or misconduct is involved.

d. Abandonment order may be used in combat, large-scale field exercises simulating combat, military

advisor activities, or to meet other military requirements.

e. Recovery of property unlawfully held by civilians is authorized - show proof it is U.S. property and do

not breach the peace.

f. AR 15-6 investigations and other collateral investigations can be used as a substitute for the report of

survey investigation.

g. If the commander determines that no negligence was involved in the damage to the property, no report

of survey is required as long as the approving authority concurs.

2. Initiating a Report of Survey.

Chapter 6

Administrative Law

105
a. Active Army commanders will initiate the report of survey within 15 calendar days of discovering the

loss or damage.

b. The goal is a thorough investigation.

c. Mandatory requirements for a report of survey or AR 15-6 investigation.

(1) Individual refuses to admit liability by signing a statement of charges, cash collection voucher or

other accountability document, and negligence or misconduct is suspected.

(2) Anytime a higher authority or other DA regulations directs a report of survey.

(3) Whenever a sensitive item is lost or destroyed.

(4) Property is lost by an outgoing accountable officer, unless voluntary reimbursement is made for the

full value of the loss.

(5) When the amount of loss or damage exceeds an individuals monthly base pay, even if liability is

admitted.

(6) When damage to government quarters or furnishings exceeds one months base pay.

(7) When the loss involves certain bulk petroleum products.

d. In the Active Army, reports of survey will normally be processed within 75 days. Reports of survey in

the National Guard will normally be processed within 150 days; in the U.S. Army Reserves, 240 days.

3. Approving Authority.

a. The approving authority is normally the battalion or brigade commander, but it may be any commander,

chief of a HQDA staff agency, director of a MACOM staff office, or chief of a separate MACOM

activity in the grade of LTC or higher, or a DA Civilian employee in a supervisory position in the grade

of GS-14 or above. The approving authority does not have to be a court-martial convening authority.

b. Regardless of who initiates the report of survey, it is processed through the chain of command of the

individual responsible for the property at the time of the incident if the individual is subject to AR 735-

5.

c. If negligence is clearly established on the report of survey, the approving authority may recommend

liability without appointing a surveying officer. The approving authority is then responsible for

ensuring that the charges are properly computed and the individual against whom liability is

recommended is properly notified and given an opportunity to respond.

4. Appointing Authority.

a. The appointing authority may be a lieutenant colonel or colonel, or U.S. DoD civilian employee in the

grade of GS-13 or above (or a major or GS-12 filling a position of a lieutenant colonel or GS-13).

b. The appointing authority appoints report of survey investigating officers. The appointing authority also

reviews all reports of survey arising within his or her command or authority.

5. Surveying Officer.

a. The surveying officer will be senior to the person subject to possible financial liability, except when

impractical due to military exigencies.

Chapter 6

Administrative Law

106
b. The surveying officer can be an Army commissioned officer; warrant officer; or noncommissioned

officer in the rank of Sergeant First Class or higher; a civilian employee GS-07 or above; a

commissioned officer of another service; or a Wage Leader (WL) or Wage Supervisor (WS) employee.

In joint activities, DoD commissioned or warrant officers, or noncommissioned officers in the grade of

E-7 or above, qualify for appointment as survey officers.

c. Consult AR 600-8-14, Table 8-1, for the grade equivalency between military personnel and civilian

employees.

d. The investigation is the surveying officers primary duty.

e. The surveying officer should get a briefing from a judge advocate.

6. Legal Considerations for Imposing Liability. (AR 735-5, Appendix C)

a. Standard of liability.

(1) Simple negligence - the failure to act as a reasonably prudent person would have acted under

similar circumstances.

(a) A reasonably prudent person is an average person, not a perfect person. Consider also:

(i) The persons age, experience, and special qualifications.

(ii) The type of responsibility involved.

(iii) The type and nature of the property. More complex or sensitive property normally

requires a greater degree of care.

(b) Examples of simple negligence.

(i) Failure to do required maintenance checks.

(ii) Leaving weapon leaning against a tree while attending to other duties.

(iii) Driving too fast for road or weather conditions.

(iv) Failing to maintain proper hand receipts.

(2) Gross negligence - an extreme departure from the course of action expected of a reasonably prudent

person, all circumstances being considered, and accompanied by a reckless, deliberate, or wanton

disregard for the foreseeable consequences of the act.

(a) Reckless, deliberate, or wanton.

(i) These elements can be express or implied.

(ii) Does not include thoughtlessness, inadvertence, or error in judgment.

(b) Foreseeable consequences.

(i) Does not require actual knowledge of actual results.

(ii) Need not foresee the particular loss or damage that occurs, but must foresee that some loss

or damage of a general nature may occur.

Chapter 6

Administrative Law

107
(c) Examples of gross negligence.

(i) Soldier drives a vehicle at a speed in excess of 40 mph of the posted speed limit.

Intentionally tries to make a sharp curve without slowing down.

(ii) Soldier lives in family quarters and has a child who likes to play with matches. Soldier

leaves matches out where child can reach them.

(3) Willful misconduct - any intentional or unlawful act.

(a) Willfulness can be express or implied.

(b) Includes violations of law and regulations such as theft and misappropriation of government

property.

(c) A violation of law or regulation is not negligence per se.

(d) Examples of willful misconduct.

(i) Soldier throws a tear gas grenade into the mess tent to let the cooks know what he thought

about breakfast, and, as a result, the tent burns to the ground.

(ii) Soldier steals a self-propelled howitzer, but he does not know how to operate it.

Accordingly, his joy ride around post results in damage to several buildings.

(4) Proximate cause - the cause which, in a natural and continuous sequence, unbroken by a new cause,

produces the loss or damage, and without which the loss or damage would not have occurred. It is

the primary moving cause, or the predominating cause, from which the injury follows as a natural,

direct, and immediate consequence, and without which it would not have occurred.

(a) The damage arises out of the original act of negligence or misconduct.

(b) A continual flow or occurrence of events from the negligent act or misconduct.

(c) Use common sense.

(d) Examples of proximate cause.

(i) Soldier driving a vehicle fails to stop at a stop sign and strikes another vehicle after failing

to look. Proximate cause is the soldiers failure to stop and look.

(ii) Soldier A illegally parks his vehicle in a no parking zone. Soldier B backs into As

vehicle. B did not check for obstructions to the rear of his vehicle. As misconduct is not

the proximate cause of the damage. Instead, Bs negligent driving is the proximate cause.

(5) Independent intervening cause - an act that interrupts the original flow of events or consequences of

the original negligence. It may include an act of God, criminal misconduct, or negligence.

(6) Joint negligence or misconduct - two or more persons may be held liable for the same loss.

(a) There is no comparative negligence.

(b) The financial loss is apportioned according to AR 735-5, Table 12-4.

b. Loss. There are two types of losses that can result in financial liability.

Chapter 6

Administrative Law

108
(1) Actual loss. Physical loss, damage or destruction of the property.

(2) Loss of accountability. Due to the circumstances of the loss, it is impossible to determine if there

has been actual physical loss, damage, or destruction because it is impossible to account for the

property.

c. Responsibility for property.

(1) Command responsibility.

(a) The commander has an obligation to insure proper use, care, custody, and safekeeping of

government property within his or her command.

(b) Command responsibility is inherent in command and cannot be delegated. It is evidenced by

assignment to command at any level.

(2) Direct responsibility.

(a) An obligation of a person to ensure the proper use, care, custody, and safekeeping of all

government property for which the person is receipted.

(b) Direct responsibility is closely related to supervisory responsibility, which is discussed below.

(3) Personal responsibility. The obligation of an individual for the proper use, care, and safekeeping of

government property in his possession, with or without a receipt.

(4) Supervisory responsibility.

(a) The obligation of a supervisor for the proper use, care, and safekeeping of government

property issued to, or used by, subordinates. It is inherent in all supervisory positions and is

not contingent upon signed receipts or responsibility statements.

(b) If supervisory responsibility is involved, consider the following additional factors.

(i) The nature and complexity of the activity and how that affected the ability to maintain

close supervision.

(ii) The adequacy of supervisory measures used to monitor the activity of subordinates.

(iii) The extent supervisory duties were hampered by other duties or the lack of qualified

assistants.

(5) Custodial responsibility.

(a) The obligation of an individual for property in storage awaiting issue or turn-in to exercise

reasonable and prudent actions to properly care for and ensure proper custody and safekeeping

of the property.

(b) When unable to enforce security, they must report the problem to their immediate supervisor.

7. Determining the Amount of Loss.

a. If possible, determine the actual cost of repair or actual value at the time of the loss. The preferred

method is a qualified technicians two-step appraisal of fair market value. The first step involves a

Chapter 6

Administrative Law

109
determination of the items condition. The second step is to determine the commercial value of the item

given its condition.

b. If other means of valuation are not possible, consider depreciation. Compute the charge according to

AR 735-5, Appendix B.

c. Limits on financial liability.

(1) The general rule is that an individual will not be charged more than one months basic pay.

(a) Charge is based upon the soldiers basic pay at the time of the loss.

(b) For ARNG and USAR personnel, basic pay is the amount they would receive if they were on

active duty.

(2) As exceptions to the general rule, there are times when personnel are liable for the full amount of

the loss.

(a) Any person is liable for the full loss to the Government (less depreciation) when they lose,

damage, or destroy personal arms or equipment.

(b) Any person is liable for the full loss of public funds.

(c) Accountable officers will be held liable for the full amount of the loss.

(d) Any person assigned government quarters is liable for the full amount of the loss to the

quarters, furnishings, or equipment as a result of gross negligence or willful misconduct of the

responsible individual, his guests, dependents, or pets.

8. Rights of Individual for Whom Financial Liability is Recommended.

a. The report of survey form (DA Form 4697) contains a rights notice; however, to adequately inform an

individual of his or her rights, see AR 735-5, para 13-40 and Figure 13-11.

b. If financial liability is recommended, the surveying officer must take the following actions.

(1) Give the person an opportunity to examine the report of investigation.

(2) Ensure the person is aware of rights.

(3) Fully consider and attach any statement the individual desires to submit.

(4) Carefully consider any new or added evidence and note that the added evidence has been

considered.

(5) Explain the consequences of a finding of gross negligence for a survey involving government

quarters, furnishings and equipment.

9. Duties of the Approving Authority.

a. If the survey officer recommends liability, a judge advocate must review the adequacy of the evidence

and the propriety of the findings and recommendations before the approving authority takes action.

b. The approving authority is not bound by the surveying officers or judge advocates recommendations.

Chapter 6

Administrative Law

110
c. If the approving authority decides to assess financial liability contrary to the recommendations of the

surveying officer or judge advocate, that decision and its rationale must be in writing.

d. If considering new evidence, the approving authority must notify the individual and provide an

opportunity to rebut.

e. The approving authority must ensure that the individual was advised of rights.

f. Initiate collection action by sending documentation to the servicing finance office.

g. The approving authority may request that a charge be prorated beyond 2 months.

10. Involuntary Withholding of Current Pay.

a. Members of the armed forces may have charges involuntarily withheld. 37 U.S.C. §1007.

b. Involuntary withholding for civilian employees. (See 5 U.S.C. § 5512, AR 37-1, Chapter 15.)

c. No involuntary withholding for the loss of NATO property (DAJA-AL 1978/2184).

d. No involuntary withholding for the loss of MFO property.

C. RELIEF FROM REPORTS OF SURVEY.

1. Appeals.

a. The appeal authority is the next higher commander above the approving authority (see AR 735-5, para.

13-49, for delegation authority).

b. Individual has 30 days to appeal unless he or she shows good cause for an extension.

c. Appeal is submitted to approving authority for reconsideration before action by the appeal authority.

d. If the approving authority denies reconsideration the following actions are required:

(1) Prepare a memorandum giving the basis for denying the requested relief.

(2) The approving authority must personally sign the denial.

(3) The action must be forwarded to the appeal authority within 15 days.

e. Action by the appeal authority is final.

f. Issues on appeal.

(1) Survey not initiated within 15 calendar days after discovery of the loss as required by AR 735-5.

Time limits are for the benefit of the government. This is a factor to consider, but insufficient basis

in and of itself to grant the appeal.

(2) Surveying officer was not senior to the person held financially liable as required by AR 735-5.

Purpose of the requirement is to prevent a chilling effect on the surveying officer. If senior

individual is held liable, then the purpose of the regulation has been met. Deny the appeal.

Chapter 6

Administrative Law

111
(3) Rights warning not given by the surveying officer. This is an administrative procedure. A failure

to warn does not invalidate the survey. This is a factor to consider, but insufficient basis in and of

itself to grant the appeal.

(4) Surveying officer does not complete the investigation within 30 days as required by AR 735-5.

Some investigations may take longer than others. This is a factor to consider, but insufficient basis

in and of itself to grant the appeal.

(5) Survey not processed through the chain of command of the person responsible for the property at

the time of the loss as required by AR 735-5. This a purely administrative requirement and

harmless error. Deny the appeal.

2. Re-opening Reports of Survey.

a. Not an appeal.

b. Authority to reopen rests with the approval authority.

c. May occur:

(1) As part of an appeal of the assessment of financial liability.

(2) When a response is submitted to the surveying officer from the person charged subsequent to the

approving authority having assessed liability.

(3) When a subordinate headquarters recommends reopening based upon new evidence.

(4) When the property is recovered.

(5) When the approving authority becomes aware that an injustice has been perpetrated against the

government or an individual.

3. Remission of Indebtedness (See AR 735-5; AR 600-4).

a. Enlisted soldiers only.

b. Only to avoid extreme hardship.

c. Only unpaid portions can be remitted. Suspend collection action long enough for the soldier to submit

his request for remission of the debt.

4. Army Board for the Correction of Military Records (ABCMR) (See AR 15-185).

5. Civilian employees may avail themselves of the grievance/arbitration procedures.

D. STAFF JUDGE ADVOCATES REVIEW.

1. For the Approving Authority: adequacy of evidence and propriety of findings and recommendations.

2. For the Appeal Authority: evidence is adequate and findings are proper.

3. The same attorney cannot perform both legal reviews.

E. CONCLUSION - Commanders must ensure that the Report of Survey process is fair and uniform in its treatment

of agency members. Liability of individuals responsible for property (whether based on command, supervisory,

Chapter 6

Administrative Law

112
direct or personal responsibility) should be fully considered. Legal advisors should get involved early in the

process to help commanders and survey officers focus their investigations, and to ensure that individual rights

are addressed before imposition of liability.

IV. ADMINISTRATIVE INVESTIGATIONS

References

Army:

Administrative Investigations: AR 15-6, Procedure for Investigating Officers and Boards of Officers, 11 May 1988

w/Ch. 30 September 1996.

Safety Investigations: AR 385-40, Accident Reporting and Records, 1 November 1994.

Reports of Survey: AR 735-5, Policies and Procedures for Property Accountability, 31 January 1998.

Line of Duty: AR 600-8-1, Army Casualty and Memorial Affairs and Line of Duty Investigations, 18 September

1986 (an expired regulation in temporary use pending replacement).

Flying Evaluation Boards: AR 600-105, Aviation Service of Rated Army Officers, 15 December 1994.

Conscientious Objection; AR 600-43, Conscientious Objection, 15 May 1998.

Information Security: AR 380-5, Department of the Army Information Security Program, 25 February 1988.

Air Force:

Accident/Mishap Investigation Boards. AFI 51-503, Aircraft, Missile, Nuclear, and Space Accident Investigations, 1

December 1998.

Safety Investigation Boards. AFI 91-204, Safety Investigations and Reports, 29 November 1999.

Information Security. AFI 31-401, Information Security Management, 1 January 1999.

Line of Duty. AFI 36-2910, Line of Duty (Misconduct) Investigations, 15 August 1994.

Reports of Survey. AFMAN 23-220, Reports of Survey for Air Force Property, 1 July 1996.

Conscientious Objectors. AFI 36-3204, Procedures for Applying as a Conscientious Objector, 15 July 1994

Navy

Aviation accident investigations. Naval Aviation Safety Program, OPNAV 3750.6Q.

Safety Investigations. Afloat, Navy Occupational Safety and Health (NAVOSH) Program Manual for Forces Afloat,

OPNAVINST 5100.19 D. Ashore, Navy Occupational Safety and Health (NAVOSH) Program Manual,

OPNAVINST 5100.23 E.

Line of duty. JAGINST 5800.7C (Manual of the Judge Advocate General), paras. 0221-0241.

Loss of property. JAGINST 5800.7C (Manual of the Judge Advocate General), para. 0250.

Procedure for Investigating Officers and Boards of Officers

Army Regulation 15-, 6 (Procedure for Investigating Officers and Boards of Officers) contains the basic rules for

Army regulatory boards. Many boards, however, are appointed under a specific regulation or directive (e.g., AR 635-200

provides for the appointment of boards to consider the separation of enlisted personnel). In that case, the provisions of

the specific regulation or directive will control the proceedings. Often, that specific regulation will have a provision that

makes AR 15-6 applicable to the proceedings. Consequently, you may have to look to both the specific regulation

involved and to AR 15-6 for the proper board procedures. If the two regulations conflict on a particular point, the

provisions of the specific regulation authorizing the board will override the provisions of AR 15-6.

The Air Force has no single regulation or instruction governing non-IG investigations. Some types of investigations

may be specifically authorized by instruction (for example, AFI 36-3208, Administrative Discharge of Airmen). In any

event, the ability to initiate a command-directed investigation flows from the commanders inherent authority.

In the Navy and Marine Corps, the main reference for administrative investigations is JAGINST 5800.7C, The

Manual of the Judge Advocate General, also known as the JAGMAN. It divides administrative investigations into

more specific types than AR 15-6.

Investigations in all services follow similar basic concepts. In the joint environment, the goal, of course, is to prepare

an investigation that meets the substantive standards of all the services involved. Detailed analysis of Air Force and Navy

Investigation requirements is beyond the scope of this chapter. Reference to those services policies is for clarification

only. Legal advisors should turn to the appropriate Service authorities for detailed guidance.

Chapter 6

Administrative Law

113
A. General.

1. Function and Purpose. The primary purpose of an investigation or board of officers is to look into and

report on the matters that the appointing authority has designated for inquiry. The report will include

findings of fact and recommendations. Often, when criminal misconduct is suspected, it may be more

appropriate to conduct an R.C.M. 303 preliminary inquiry or to have either the military police, Criminal

Investigation Division, or other appropriate law enforcement authorities conduct the investigation.

2. Methods. An administrative fact-finding procedure under AR 15-6 may be designated an investigation or a

board of officers. The proceedings may be informal or formal. Proceedings that involve a single officer

using the informal procedures are designated investigations. Proceedings that involve more than one

investigating officer using formal or informal procedures or a single investigating officer using formal

procedures are designated boards of officers. The Navy term for informal investigations is command

investigation, or CI. The Air Force term is Command Directed Investigations, or CDI."

3. Uses. No service requires as a blanket rule that an investigation be conducted before taking adverse

administrative action. But, if inquiry is made under AR 15-6 or other general investigative authority, the

findings and recommendations may be used in any administrative action against an individual. An adverse

administrative action does not include actions taken pursuant to the Uniform Code of Military Justice

(UCMJ) or the Manual for Courts-Martial (MCM).

B. The appointing authority must determine, based on the seriousness and complexity of the issues and the purpose

of the inquiry, whether to designate an investigation or a board of officers to conduct the inquiry.

1. Investigation. Conducted by a single investigating officer using informal procedures. An investigation

would be appropriate for relatively simple matters. It could also be useful in a serious matter to conduct a

preliminary inquiry to be followed by a formal proceeding.

2. When more than one fact-finder is appointed, whether formal or informal procedures are used, they will be

designated a board of officers. Additionally, a single fact-finder will be designated a board when formal

procedures are to be used.

Informal Procedures. An informal investigation or board may use whatever method it finds most efficient and effective

for acquiring information. For example, the board may divide witnesses, issues, or evidentiary aspects of the inquiry

among its members for individual investigation and development, holding no collective meeting until ready to review all

the information collected. Evidence may be taken telephonically, by mail, or in whatever way the board deems

appropriate. A respondent shall not be designated when informal procedures are used and no one is entitled to the rights

of a respondent. Before beginning an informal investigation, an investigating officer reviews all written materials

provided by the appointing authority and consults with a servicing staff or command judge advocate to obtain appropriate

legal guidance. Some of the most important services a judge advocate can perform include assisting the investigating

officer in developing an investigative plan, and providing advice during the conduct of the investigation on what the

evidence establishes what areas might be fruitful to pursue, and the necessity for rights warnings

Formal Procedures. The board will meet in full session to take evidence. Definite rules of procedure will govern the

proceedings. Depending on the subject matter under investigation, these procedural rules will be found in AR 15-6

(chapter 5), the specific regulation governing the investigation, or both. The Air Force presents guidance for formal

investigations in AFI 51-602, Boards of Officers. The Navys guidance appears in JAGINST 5830.1, Procedures

Applicable to Courts of Inquiry and Administrative Fact-Finding Bodies that Require a Hearing.

When a respondent is designated, a hearing must be held. A respondent may be designated when the appointing authority

desires to (or other regulations require) a hearing for a person with a direct interest in the proceeding. Important benefits

inure to a respondent, such as the right to be present at board sessions, representation by counsel, and opportunity to

present witnesses and cross-examine Government witnesses. The mere fact that an adverse finding may be made or

adverse action recommended against a person, however, does not mean that he or she should be designated a respondent.

If a respondent is designated, formal procedures must be used. For example, a board of officers considering an enlisted

Chapter 6

Administrative Law

114
soldier for separation under AR 635-200 must use formal procedures. Due to the considerable administrative burden of

using formal procedures, they are rarely used unless required by other regulations. Proper conduct of formal

investigations depends on the purpose of the investigation, and is beyond the scope of this chapter.

Authority to Appoint an investigation or board (AR 15-6, Chapter 2)

A. Formal. After consultation with the servicing judge advocate or legal advisor, the following individuals may

appoint a formal board of officers in the Army:

1. Any general court-martial convening authority (GCMCA) or special court-martial convening authority

(SPCMCA), including those who exercise that authority for administrative purposes only;

2. Any general officer;

3. Any commander or principal staff officer in the grade of colonel or above at the installation, activity, or unit

level;

4. Any State adjutant general; or

5. A Department of the Army civilian supervisor permanently assigned to a position graded as a GS/GM-14 or

above and who is assigned as the head of an Army agency or activity or as a division or department chief.

In the Air Force, the appointment authority for boards of officers varies with the regulatory authority for

convening the board. In the Navy, an officer in command may convene a board. The General Court Martial

Convening Authority takes charge in case of a major incident.

B. Informal investigations or boards may be appointed by:

1. Any officer authorized to appoint a formal board or investigation.

2. A commander at any level. In the Air Force, the commander must be on G series orders granting UCMJ

authority over the command. In the Navy, a commanding officer or an officer in charge may convene a CI.

3. (In the Army) A principal staff officer or supervisor in the grade of major or above.

C. Selection of members. In the Army, if the appointing authority is a general officer, he may delegate the selection

of board members to members of his staff.

D. Limitation. In investigations under AR 15-6, only a GCMCA may appoint an investigation or board for

incidents resulting in property damage of $1M or more, the loss/destruction of an Army aircraft or missile, or an

injury/illness resulting in or likely to result in death or permanent total disability. A copy of any investigation

involving a fratricide/friendly fire incident will be forwarded after action by the appointing authority to the next

higher Army headquarters.

Function of Investigations and Boards of Officers (AR 15-6, para. 1-5)

The primary function of any investigation or board of officers is to ascertain facts and report them to the appointing

authority. It is the duty of the investigating officer or board to ascertain and consider the evidence on all sides of each

issue thoroughly and impartially and to make findings and recommendations that are warranted by the facts and that

comply with the instructions of the appointing authority.

Method of Appointment (AR 15-6, para. 2-1b)

Informal Army investigations and boards may be appointed either orally or in writing. Air Force CDIs and Navy CIs

must be appointed in writing. Formal boards will be appointed in writing but, when necessary, may be appointed orally

and later confirmed in writing. Whether oral or written, the appointment should specify clearly the purpose and scope of

Chapter 6

Administrative Law

115
the investigation or board and the nature of the findings and recommendations required. The governing regulation should

be specified and any special instructions should be detailed.

If the board or investigation is appointed in writing, a Memorandum of Appointment will be used. Note that the

Memorandum of Appointment must include certain informationthe specific regulation or directive under which the

board is appointed, the purpose of the board, the scope of the boards investigatory power, and the nature of the findings

and recommendations required. The scope of the boards power is very important because a board has no power beyond

that vested in it by the appointing authority. A deficiency in the memorandum may nullify the proceedings for lack of

jurisdiction. If this occurs, AR 15-6, para. 2-3c, should be consulted. It may be possible for the appointing authority to

ratify the boards action.

The memorandum also names the parties to and designates their roles in the board proceeding. If the board were

appointed specifically to investigate one or more known respondents, the respondent(s) would also be named in the

Memorandum of Appointment.

Choosing the Informal AR 15-6 Officer

The 15-6 investigating officer (IO) must meet Service regulatory requirements, and should also be assigned based on

age, education, training, experience, length of service, and temperament. In the Army, the IO must be a commissioned or

warrant officer, or a civilian GS-13 or above, senior to any likely subjects of the investigation. In the naval services, most

command investigations will be conducted by a commissioned officer. However, a warrant officer, senior enlisted

person, or civilian employee may be used when the convening authority deems it appropriate. The Air Force specifies no

minimum grade for CI investigators.

Both the Army and the Air Force require the IO to consult with a JA for guidance before beginning an informal

investigation. The Naval services only require such consultation when the investigation is intended as a litigation report

or when directed by the appointing authority. This consultation provides a good opportunity to provide a written

investigative guide to the IO. The Army OTJAG Investigating Officers Guide is included here as an appendix. The

Naval Justice School has a similar publication, JAGMAN Investigations Handbook. The Air Force publishes the Air

Force Commander-Directed Investigations Guide (on the world wide web at www.ig.ha.af.mil).

Conducting the Informal Investigation

The IO, with the assistance of the JA advisor, must formulate an investigation plan that takes into account both legal

concerns and tactical effectiveness. Each investigation will be different, but the following factors should be considered:

1. Purpose of the Investigation: Need to carefully consider the guidance of the appointment memorandum on

purpose and timeline.

2. Facts known

3. Potential witnesses

4. Securing physical and documentary evidence

5. Possible criminal implications? (including need for Article 31, UCMJ warnings)

6. Civilian witness considerations (securing non-military witness information, giving appropriate rights to

collective bargaining unit members)

7. Regulations and statutes involved

8. Order of witness interviews

9. Chronology

Chapter 6

Administrative Law

116
Continued meetings between the IO and the legal advisor will allow proper adjustments to the investigative plan as the

investigation progresses, and allow for proper ongoing coordination with the appointing authority.

Findings and Recommendations

The report of investigation contains two final productsthe findings and the recommendations.

A. Report Structure. Navy CI and Air Force CDI reports begin with narrative information from the investigating

officer

1. Navy investigations begin with a preliminary statement. It tells how all reasonably available evidence was

collected or is forthcoming, whether each directive of the convening authority has been met, difficulties

encountered, and any other information necessary for a complete understanding of the case.

2. Air Force CDI reports of investigation begin with a discussion of the authority and scope of the

investigation. They continue with an introduction providing background, a description of the allegations,

and a bottom line up front conclusion on whether the allegations were substantiated or not.

3. Army informal investigations normally begin with DA Form 1574, which provides a fill in the box guide

to procedures followed during the investigation.

B. Findings. A finding is a clear, concise statement of fact readily deduced from evidence in the record. Findings

include negative findings (i.e. that an event did not occur). Findings should refer to specific supporting evidence

with citations to the record of investigation. Findings must be supported by the preponderance of the evidence.

Factors such as demeanor, imputed knowledge, and ability to recall may be considered by the IO. Finally,

findings must also address the issues raised in the appointment memorandum.

C. Recommendations. Recommendations must be consistent with the findings, and must thus be supported by the

record of investigations. Air Force CDIs and Navy CIs will not contain recommendations unless specifically

requested by the convening authority.

Legal Review and Action by the Appointing Authority

The completed report of investigation should, as a practical matter, always receive legal review. In fact, AR 15-6

requires legal review of Army investigations where adverse administrative action may result, the report will be relied

upon by higher headquarters, death or serious bodily injury resulted, or any case involving serious or complex matters.

The Air Force requires legal review of investigation CDIs that are not simply diagnostic to ensure compliance with

applicable regulations and law. The Navy neither requires nor precludes legal review.

An attorney other than the advisor to the investigating officer should conduct the review. In the Army, that review

will focus on whether the proceedings complied with legal requirements, what effects any errors would have, whether

sufficient evidence supports the findings, and whether the recommendations are consistent with the findings.

After reviewing the report of investigation, the appointing authority has three options. First, of course, the appointing

authority can approve the report as is. The appointing authority can return the report for additional investigation, either

with the same or with a new investigating officer. Finally, the appointing authority can substitute findings and

recommendations. The record must support any substituted findings and recommendations.

Unless otherwise provided in other regulations, the appointing authority is not bound by the findings or regulations.

The appointing authority may also consider information outside the report of investigation in making personnel,

disciplinary, or other decisions.

Chapter 6

Administrative Law

117
APPENDIX

ARMY REGULATION 15-6

INVESTIGATION GUIDE

FOR

INFORMAL INVESTIGATIONS

JANUARY, 1997

Chapter 6, Appendix

Administrative Law

118
INTRODUCTION

1. PURPOSE:

a. This guide is intended to assist investigating officers, who have been appointed under the provisions of Army

Regulation (AR) 15-6, in conducting timely, thorough, and legally sufficient investigations. It is designed specifically for

informal investigations, but some provisions are applicable to formal investigations. Legal advisors responsible for

advising investigating officers may also use it. A brief checklist is included at the end of the guide as an enclosure. The

checklist is designed as a quick reference to be consulted during each stage of the investigation. The questions in the

checklist will ensure that the investigating officer has covered all the basic elements necessary for a sound investigation.

b. This guide includes the changes implemented by Change 1 to AR 15-6. Many of those changes are significant;

consequently, the information in the guide based on the changes is italicized.

2. DUTIES OF AN INVESTIGATING OFFICER: The primary duties of an investigating officer are:

a. To ascertain and consider the evidence on all sides of an issue,

b. To be thorough and impartial,

c. To make findings and recommendations warranted by the facts and comply with the instructions of the

appointing authority, and

d. To report the findings and recommendations to the appointing authority.

3. AUTHORITY:

a. AR 15-6 sets forth procedures for the conduct of informal and formal investigations. Only informal

investigations will be discussed here. Informal investigations are those that usually have a single investigating officer

who conducts interviews and collects evidence. In contrast, formal investigations normally involve due process hearings

for a designated respondent. Formal procedures are required whenever a respondent is designated.

b. Informal procedures are not intended to provide a hearing for persons who may have an interest in the subject of

the investigation. Since no respondents are designated in informal procedures, no one is entitled to the rights of a

respondent, such as notice of the proceedings, an opportunity to participate, representation by counsel, or the right to call

and cross-examine witnesses. The investigating officer may, however, make any relevant findings or recommendations

concerning individuals, even where those findings or recommendations are adverse to the individual or individuals

concerned.

c. AR 15-6 is used as the basis for many investigations requiring the detailed gathering and analyzing of facts, and

the making of recommendations based on those facts. AR 15-6 procedures may be used on their own, such as in an

investigation to determine facts and circumstances, or the procedures may be incorporated by reference into directives

governing specific types of investigations, such as reports of survey and line of duty investigations. If such directives

contain guidance that is more specific than that set forth in AR 15-6 or these procedures, the more specific guidance will

control. For example, AR 15-6 does not contain time limits for completion of investigations; however, if another

directive that incorporates AR 15-6 procedures contains time limits, that requirement will apply.

d. Only commissioned officers, warrant officers, or DA civilian employees paid under the General Schedule, Level

13 (GS 13), or above may be investigating officers. The investigating officer must also be senior to any person that is

part of the investigation if the investigation may require the investigating officer to make adverse findings or

recommendations against that person. Since the results of any investigation may have a significant impact on policies,

procedures, or careers of government personnel, the appointing authority should select the best qualified person for the

duty based on their education, training, experience, length of service, and temperament.

Chapter 6, Appendix

Administrative Law

119
PRELIMINARY MATTERS

1. Appointing authority.

a. Under AR 15-6, the following persons may appoint investigating officers for informal investigations:

- any general court-martial convening authority, including those who have such authority for administrative

purposes only,

- any general officer,

- a commander at any level,

- a principal staff officer or supervisor in the grade of major or above,

- any state adjutant general, and

- a DA civilian supervisor paid under the Executive Schedule, SES, or GS/GM 14 or above, provided the

supervisor is the head of an agency or activity or the chief of a division or department.

b. Only a general court-martial convening authority may appoint an investigation for incidents resulting in property

damage of $1,000,000, the loss or destruction of an Army aircraft or missile, an injury or illness resulting in, or likely to

result in, total disability, or the death of one or more persons.

2. Appointment procedures. Informal investigation appointments may be made orally or in writing. If written, the

appointment orders are usually issued as a memorandum signed by the appointing authority or by a subordinate with the

appropriate authority line. Whether oral or written, the appointment should specify clearly the purpose and scope of the

investigation and the nature of the findings and recommendations required. If the orders are unclear, the investigating

officer should seek clarification. The primary purpose of an investigation is to report on matters that the appointing

authority has designated for inquiry. The appointment orders may also contain specific guidance from the appointing

authority, which, even though not required by AR 15-6, nevertheless must be followed. For example, AR 15-6 does not

require that witness statements be sworn for informal investigations; however, if the appointing authority requires this, all

witness statements must be sworn.

3. Obtaining assistance. The servicing Judge Advocate office can provide assistance to an investigating officer at the

beginning of and at any time during the investigation. Investigating officers should always seek legal advice as soon as

possible after they are informed of this duty and as often as needed while conducting the investigation. In serious or

complex investigations for which a legal review is mandatory, this requirement should be included in the appointment

letter. Early coordination with the legal advisor will allow problems to be resolved before they are identified in the

mandatory legal review. The legal advisor can assist an investigating officer in framing the issues, identifying the

information required, planning the investigation, and interpreting and analyzing the information obtained. The attorneys

role, however, is to provide legal advice and assistance, not to conduct the investigation or substitute his or her judgment

for that of the investigating officer. NOTE: Complex and sensitive cases include those involving a death or serious

bodily injury, those in which findings and recommendations may result in adverse administrative action, and those that

will be relied upon in actions by higher headquarters.

4. Administrative matters. As soon as the investigating officer receives appointing orders, he or she should begin a

chronology showing the date, time, and a short description of everything done in connection with the investigation. The

chronology should begin with the date orders are received, whether verbal or written. Investigating officers should also

record the reason for any unusual delays in processing the case, such as the absence of witnesses due to a field training

exercise. The chronology should be part of the final case file.

5. Concurrent investigations. An informal investigation may be conducted before, concurrently with, or after an

investigation into the same or related matters by another command or agency. Appointing authorities and investigating

officers must ensure that investigations do not hinder or interfere with criminal investigations or investigations directed

Chapter 6, Appendix

Administrative Law

120
by higher headquarters. In cases of concurrent investigations, investigating officers should coordinate with the other

command or agency to avoid duplication of effort wherever possible. If available, the results of other investigations may

be incorporated into the AR 15-6 investigation and considered by the investigating officer. Additionally, an investigating

officer should immediately coordinate with the legal advisor if he or she discovers evidence of serious criminal

misconduct.

CONDUCTING THE INVESTIGATION

1. Developing an investigative plan.

a. The investigating officers primary duty is to gather evidence, and make findings of fact and appropriate

recommendations to the appointing authority. Before obtaining information, however, the investigating officer should

develop an investigative plan that consists of (1) an understanding of the facts required to reach a conclusion, and (2) a

strategy for obtaining evidence. This should include a list of potential witnesses and a plan for when each witness will be

interviewed. The order in which witnesses are interviewed may be important. An effective, efficient method is to

interview principal witnesses last. This best prepares the investigating officer to ask all relevant questions and minimizes

the need to re-interview these critical witnesses. As the investigation proceeds, it may be necessary to review and modify

the investigative plan.

b. The investigating officer should begin the investigation by identifying the information already available, and

determining what additional information will be required before findings and recommendations may be made to the

appointing authority. An important part of this is establishing the appropriate standards, rules, or procedures that govern

the circumstances under investigation. The legal advisor or other functional expert can assist the investigating officer in

determining the information that will be required.

2. Obtaining documentary and physical evidence.

a. The investigating officer may need to collect documentary and physical evidence such as applicable regulations,

existing witness statements, accident or police reports, and photographs. This information can save valuable time and

effort. Accordingly, the investigating officer should obtain this information at the beginning of the investigation. In

some cases, the information will not be readily available, so the request should be made early so the investigating officer

may continue to work on other aspects of the investigation while the request is being processed. The investigating officer

should, if possible and appropriate, personally inspect the location of the events being investigated and take photographs,

if they will assist the appointing authority.

b. A recurring problem that must be avoided is lack of documentation in investigations with findings of no fault, no

loss, or no wrongdoing. It is just as important to back these findings up with documentary evidence as it is to document

adverse findings. All too frequently an investigating officer who makes a finding of no fault, no loss, or no wrongdoing,

closes the investigation with little or no documentation. This is incorrect. The report of investigation must include

sufficient documentation to convince the appointing authority and others who may review the investigation that the

evidence supports the finding of no fault, no loss, or no wrongdoing.

3. Obtaining witness testimony.

a. In most cases, witness testimony will be required. Clearly, the best interviews occur face-to-face; but, if

necessary, interviews may be conducted by telephone or mail. Because of the preference for face-to-face interviews,

telephone and mail interviews should be used only in unusual circumstances. Information obtained telephonically should

be documented in a memorandum for record.

b. Witness statements should be taken on DA Form 2823. Legible handwritten statements and/or questions and

answers are ordinarily sufficient. If the witness testimony involves technical terms that are not generally known outside

the witnesss field of expertise, the witness should be asked to define the terms the first time they are used.

Chapter 6, Appendix

Administrative Law

121
c. Although AR 15-6 does not require that statements be sworn for informal investigations, the appointing

authority, or other applicable regulation, may require sworn statements, or the investigating officer may, at his or her own

discretion, ask for sworn statements, even where not specifically required. Under Article 136, UCMJ, military officers

are authorized to administer the oath required to provide a sworn statement; 5 U.S.C. § 303 provides this authority for

civilian employees. (Statements taken out of the presence of the investigating officer may be sworn before an official

authorized to administer oaths at the witnesss location.)

d. Investigating officers do not have the authority to subpoena witnesses, and their authority to interview civilian

employees may be subject to certain limitations. Prior to interviewing civilians, the investigating officer should discuss

this matter with the local Labor Counselor. Commanders and supervisors, however, have the authority to order military

personnel and to direct Federal employees to appear and testify. Civilian witnesses who are not Federal employees may

agree to appear, and, if necessary, be issued invitational travel orders. This authority should be used only if the

information cannot be otherwise obtained and only after coordinating with the legal advisor or appointing authority.

4. Rights Advisement.

a. All soldiers suspected of criminal misconduct must first be advised of their rights. DA Form 3881 should be

used to record that the witness understands his or her rights and elects to waive those rights and make a statement. It may

be necessary to provide the rights warning at the outset of the interview. In some cases, however, an investigating officer

will become aware of the witnesss involvement in criminal activity only after the interview has started and incriminating

evidence is uncovered. In such case, rights warnings must be provided as soon as the investigating officer suspects that a

witness may have been involved in criminal activity. If a witness elects to assert his or her rights and requests an

attorney, all questioning must cease immediately. Questioning may only resume in the presence of the witnesss attorney,

if the witness consents to being interviewed.

b. Note that these rights apply only to information that might be used to incriminate the witness. They cannot be

invoked to avoid questioning on matters that do not involve violations of criminal law. Finally, only the individual who

would be accused of the crime may assert these rights. The rights cannot be asserted to avoid incriminating other

individuals. The following example highlights this distinction.

c. Example: A witness who is suspected of stealing government property must be advised of his or her rights prior

to being interviewed. However, if a witness merely is being interviewed concerning lost or destroyed government

property in connection with a Report of Survey, a rights warning would not be necessary unless evidence is developed

that leads the investigating officer to believe the individual has committed a criminal offense. If it is clear that the witness

did not steal the property but has information about who did, the witness may not assert rights on behalf of the other

individual.

5. Scheduling witness interviews. The investigating officer will need to determine which witnesses should be

interviewed and in what order. Often, information provided by one witness can raise issues that should be discussed with

another. Organizing the witness interviews will save time and effort that would otherwise be spent backtracking to reinterview prior witnesses concerning information provided by subsequent witnesses. While re-interviewing may be

unavoidable in some circumstances, it should be kept to a minimum. The following suggests an approach to organizing

witness interviews; it is not mandatory.

- When planning who to interview, work from the center of the issue outward. Identify the people who are likely to

provide the best information. When conducting the interviews, start with witnesses that will provide all relevant

background information and frame the issues. This will allow the interviews of key witnesses to be as complete as

possible, avoiding the backtracking described above.

- Concentrate on those witnesses who would have the most direct knowledge about the events in question. Without

unnecessarily disclosing the evidence obtained, attempt to seek information that would support or refute information

already obtained from others. In closing an interview, it is appropriate to ask if the witness knows of any other persons

who might have useful information or any other information the witness believes may be relevant to the inquiry.

Chapter 6, Appendix

Administrative Law

122
- Any information that is relevant should be collected regardless of the source; however, investigating officers should

collect the best information available from the most direct source.

- It may be necessary or advisable to interview experts having specialized understanding of the subject matter of the

investigation.

- At some point, there will be no more witnesses available with relevant and useful information. It is not necessary to

interview every member of a unit, for example, if only a few people have information relevant to the inquiry. Also, all

relevant witnesses do not need to be interviewed if the facts are clearly established and not in dispute. However, the

investigating officer must be careful not to prematurely terminate an investigation because a few witnesses give consistent

testimony.

6. Conducting witness interviews. Before conducting witness interviews, investigating officers may consult Inspector

General officials or law enforcement personnel such as Military Police officers or Criminal Investigation Division agents

for guidance on interview techniques. The following suggestions may be helpful:

- Prepare for the interview. While there is no need to develop scripts for the witness interviews, investigating

officers may wish to review the information required and prepare a list of questions or key issues to be covered. This will

prevent the investigating officer from missing issues and will maximize the use of the officers and witnesss time.

Generally, it is helpful to begin with open-ended questions such as Can you tell me what happened? After a general

outline of events is developed, follow up with narrow, probing questions, such as Did you see SGT X leave the bar

before or after SGT Y? Weaknesses or inconsistencies in testimony can generally be better explored once the general

sequence of events has been provided.

- Ensure the witnesss privacy. Investigating officers should conduct the interview in a place that will be free

from interruptions and will permit the witness to speak candidly without fear of being overheard. Witnesses should not

be subjected to improper questions, unnecessarily harsh and insulting treatment, or unnecessary inquiry into private

affairs.

- Focus on relevant information. Unless precluded for some reason, the investigating officer should begin the

interview by telling the witness about the subject matter of the investigation. Generally, any evidence that is relevant and

useful to the investigation is permissible. The investigating officer should not permit the witness to get off track on other

issues, no matter how important the subject may be to the witness. Information should be material and relevant to the

matter being investigated. Relevancy depends on the circumstances in each case. Compare the following examples:

Example 1: In an investigation of a loss of government property, the witnesss opinions concerning the

company commanders leadership style normally would not be relevant.

Example 2: In an investigation of alleged sexual harassment in the unit, information on the commanders

leadership style might be relevant.

Example 3: In an investigation of allegations that a commander has abused command authority, the

witnesss observation of the commanders leadership style would be highly relevant.

- Let the witness testify in his or her own words. Investigating officers must avoid coaching the witness or

suggesting the existence or non-existence of material facts. After the testimony is completed, the investigating officer

should assist the witness in preparing a written statement that includes all relevant information, and presents the testimony

in a clear and logical fashion. Written testimony also should reflect the witnesss own words and be natural. Stilted

police blotter language is not helpful and detracts from the substance of the testimony. A tape recorder may be used,

but the witness should be advised of its use. Additionally, the tape should be safeguarded, even after the investigation is

completed.

- Protect the interview process. In appropriate cases, an investigating officer may direct witnesses not to discuss

their statement or testimony with other witnesses or with persons who have no official interest in the proceedings until the

Chapter 6, Appendix

Administrative Law

123
investigation is complete. This precaution is recommended to eliminate possible influence on testimony of witnesses still

to be heard. Witnesses, however, are not precluded from discussing matters with counsel.

7. Rules of Evidence: Because an AR 15-6 investigation is an administrative and not a judicial action, the rules of

evidence normally used in court proceedings do not apply. Therefore, the evidence that may be used is limited by only a

few rules.

- The information must be relevant and material to the matter or matters under investigation.

- Information obtained in violation of an individuals Article 31, UCMJ, or 5

th Amendment rights may be used in

administrative proceedings unless obtained by unlawful coercion or inducement likely to affect the truthfulness of the

statement.

- The result of polygraph examinations may be used only with the subjects permission.

- Privileged communications between husband and wife, priest and penitent, attorney and client may not be

considered, and present or former inspector general personnel will not be required to disclose the contents of inspector

general reports, investigations, inspections, action requests, or other memoranda without appropriate approval.

- Off-the-record statements are not acceptable.

- An involuntary statement by a member of the Armed Forces regarding the origin, incurrence, or aggravation of a

disease or injury may not be admitted.

The investigating officer should consult the legal advisor if he or she has any questions concerning the applicability of

any of these rules.

8. Standard of Proof. Since an investigation is not a criminal proceeding, there is no requirement that facts and

findings be proven beyond a reasonable doubt. Instead, unless another specific directive states otherwise, AR 15-6

provides that findings must be supported by a greater weight of evidence than supports a contrary conclusion. That is,

findings should be based on evidence that, after considering all evidence presented, points to a particular conclusion as

being more credible and probable than any other conclusion.

CONCLUDING THE INVESTIGATION

1. Preparing Findings and Recommendations. After all the evidence is collected, the investigating officer must

review it and make findings. The investigating officer should consider the evidence thoroughly and impartially, and make

findings of fact and recommendations that are supported by the facts and comply with the instructions of the appointing

authority.

- Facts: To the extent possible, the investigating officer should fix dates, places, persons, and events, definitely and

accurately. The investigating officer should be able to answer questions such as: What occurred? When did it occur?

How did it occur? Who was involved, and to what extent? Exact descriptions and values of any property at issue in the

investigation should be provided.

- Findings: A finding is a clear and concise statement that can be deduced from the evidence in the record. In

developing findings, investigating officers are permitted to rely on the facts and any reasonable inferences that may be

drawn from those facts. In stating findings, investigating officers should refer to the exhibit or exhibits relied upon in

making each finding. The documented evidence that will become part of the report must support findings (including

findings of no fault, no loss, or no wrongdoing). Exhibits should be numbered in the order they are discussed in the

findings.

Chapter 6, Appendix

Administrative Law

124
- Recommendations: Recommendations should take the form of proposed courses of action consistent with the

findings, such as disciplinary action, imposition of financial liability, or corrective action. Recommendations must be

supported by the facts and consistent with the findings. Each recommendation should cite the specific findings that

support the recommendation.

2. Preparing the Submission to the Appointing Authority. After developing the findings and recommendations, the

investigating officer should complete DA Form 1574 and assemble the packet in the following order:

- appointing order,

- initial information collected,

- rights warning statements,

- chronology, and

- exhibits (with an index).

3. LEGAL REVIEW:

a. AR 15-6 does not require that all informal investigations receive legal review. The appointing authority,

however, must get a legal review of all cases involving serious or complex matters, such as where the incident being

investigated has resulted in death or serious bodily injury, or where the findings and recommendations may result in

adverse administrative action, or will be relied on in actions by higher headquarters. Nonetheless, appointing authorities

are encouraged to obtain legal review of all investigations. Other specific directives may also require a legal review.

Generally, the legal review will determine:

- whether the investigation complies with requirements in the appointing order and other legal requirements,

- the effects of any errors in the investigation,

- whether the findings (including findings of no fault, no loss, or no wrongdoing) and recommendations are

supported by sufficient evidence, and

- whether the recommendations are consistent with the findings.

b. If a legal review is requested or required, it is required before the appointing authority approves the findings and

recommendations. After receiving a completed AR 15-6 investigation, the appointing authority may approve, disapprove,

or modify the findings and recommendations, or may direct further action, such as the taking of additional evidence, or

making additional findings.

CHECKLIST FOR INVESTIGATING OFFICERS

1. Preliminary Matters:

a. Has the appointing authority appointed an appropriate investigating officer based on seniority, availability,

experience, and expertise?

b. Does the appointment memorandum clearly state the purpose and scope of the investigation, the points of contact

for assistance (if appropriate), and the nature of the findings and recommendations required?

c. Has the initial legal briefing been accomplished?

Chapter 6, Appendix

Administrative Law

125
2. Investigative Plan.

a. Does the investigative plan outline the background information that must be gathered, identify the witnesses who

must be interviewed, and order the interviews in the most effective manner?

b. Does the plan identify witnesses no longer in the command and address alternative ways of interviewing them?

c. Does the plan identify information not immediately available and outline steps to quickly obtain the information?

3. Conducting the Investigation.

a. Is the chronology being maintained in sufficient detail to identify causes for unusual delays?

b. Is the information collected (witness statements, MFRs of phone conversations, photographs, etc.) being retained

and organized?

c. Is routine coordination with the legal advisor being accomplished?

4. Preparing Findings and Recommendations.

a. Is the evidence assembled in a logical and coherent fashion?

b. Does the evidence support the findings (including findings of no fault, no loss, or no wrongdoing)? Does each

finding cite the exhibits that support it?

c. Are the recommendations supported by the findings? Does each recommendation cite the findings that support

it?

d. Are the findings and recommendations responsive to the tasking in the appointment memorandum?

e. Did the investigation address all the issues (including systemic breakdowns; failures in supervision, oversight, or

leadership; program weaknesses; accountability for errors; and other relevant areas of inquiry) raised directly or indirectly

by the appointment?

5. Final Action.

a. Was an appropriate legal review conducted?

b. Did the appointing authority approve the findings and recommendations? If not, have appropriate amendments

been made and approved?

Chapter 6, Appendix

Administrative Law

126
CHAPTER 7

LAW OF THE SEA, AIR, AND SPACE

REFERENCES

1. United Nations Convention on the Law of the Sea (UNCLOS III) (1982).

2. Agreement Relating to the Implementation of Part XI of the United Nations Convention

on the Law of the Sea Of 10 December 1982 (28 Jul 1994), A/RES/48/263 (33 ILM

1309).

3. Convention on the Territorial Sea and the Contiguous Zone (1958).

4. Convention on the Continental Shelf (1958).

5. Convention on the High Seas (1958).

6. Convention on Fishing and Conservation of the Living Resources of the High Seas (1958).

7. Convention on International Civil Aviation (Chicago Convention) (1944).

8. The Antarctic Treaty (1959).

9. Treaty on Principles Governing the Activities of States in the Exploration and Use of

Outer Space Including the Moon and Other Celestial Bodies (Outer Space Treaty) (1967).

10. Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of

Objects Launched Into Outer Space (Rescue Agreement) (1968).

11. Convention on the International Liability for Damage Caused By Space Objects (Liability

Convention) (1972).

12. Convention on Registration of Objects Launched Into Outer Space (Registration

Convention) (1974).

13. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies

(Moon Treaty) (1979).

14. Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo

Convention) (1963).

15. Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention)

(1970).

16. Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation

(Montreal Convention) (1971).

17. DoD 2005.1-M, Maritime Claims Reference Manual.

18. NWP 1-14M, Annotated Supplement to the Commanders Handbook on the Law of Naval

Operations, 1997.

19. AFP 110-31, The Conduct of Armed Conflict and Air Operations, 1976.

20. CJCSI 2410.01A, Guidance for the Exercise of the Right of Assistance Entry, 23 April

1997.

INTRODUCTION

Unlike many other topics of instruction, which primarily address questions of What or How, this topic addresses

the question of Where. In other words, what an individual or state may do depends on where the action is to take place.

This chapter will first discuss the various legal divisions of the land, sea, air, and outer space. Next, it will turn to the

navigational regimes within each of those divisions. Finally, it will present the competencies of the coastal State over

navigators within the divisions.

There are many sources of law which impact on this area, but three are particularly noteworthy.

United Nations Convention on the Law of the Sea (UNCLOS III).

Chapter 7

Air, Sea, and Space

127
Opened for signature on December 10, 1982, UNCLOS III entered into force on November 16, 1994

(60 ratifications). Previous conventions on the law of the sea had been concluded, but none were comprehensive as

UNCLOS III. UNCLOS I (1958) was a series of 4 conventions (Territorial Sea/Contiguous Zone, High Seas, Continental

Shelf, and Fisheries/Conservation). A major defect of these was the failure to define the breadth of the territorial sea.

UNCLOS II (1960) was an attempt to resolve issues left unresolved in 1958. However, it closed without an agreement.

UNCLOS III, which was negotiated over a period of nine years, created a structure for the governance and protection of

the seas, including the airspace above and the seabed and subsoil below. In particular, it provided a framework for the

allocation of reciprocal rights and responsibilitiesjurisdiction, as well as navigational rights and dutiesbetween

States that carefully balances the interests of States in controlling activities off their own coasts and the interests of all

States in protecting the freedom to use ocean spaces without undue interference.

On July 9, 1982, the United States announced that it would not sign the Convention, objecting to

provisions related to deep sea-bed mining (Part XI of the Convention). In a March 19, 1983 Presidential Policy

Statement, the United States reaffirmed that it would not ratify UNCLOS III because of the deep seabed mining

provisions. The United States considers the navigational articles to be generally reflective of customary international law,

and therefore binding upon all nations. In 1994, the UN General Assembly proposed amendments to the mining

provisions. In October 1994, the Convention, as amended, was submitted to the Senate for its advice and consent. No

action has been taken to date.

Convention on International Civil Aviation (Chicago Convention).

This 1944 Convention was intended to encourage the safe and orderly development of the then-rapidly

growing civil aviation industry. It does not apply to state (military, police, or customs) aircraft. While recognizing the

absolute sovereignty of the State within its national airspace, the convention provided some additional freedom of

movement for aircraft flying over and refueling within the national territory. The convention also attempted to regulate

various aspects of aircraft operations and procedures. This is a continuing responsibility of the International Civil

Aviation Authority (ICAO), which was created by the Convention.

Outer Space Treaty of 1967.

This treaty limited State sovereignty over outer space. Outer space was declared to be the common

heritage of mankind. It prevented certain military operations in outer space and upon celestial bodies, specifically, the

placing in orbit of any nuclear weapons or other weapons of mass destruction, and the installation of such weapons on

celestial bodies. Outer space was otherwise to be reserved for peaceful uses. Various other international conventions,

such as the Moon, Registration, and Liability Treaties, expand upon provisions found in the Outer Space Treaty.

LEGAL DIVISIONS

The Earths surface, sub-surface, and atmosphere are broadly divided into National and International areas.

National Areas.

Land Territory includes all territory within recognized borders. Although most borders are internationally

recognized, there are still some border areas which are in dispute.

Internal Waters. These are all waters landward of the Baseline.73 The Baseline is an artificial line corresponding

to the low-water mark along the coast.74 The coastal State has the responsibility for determining and publishing its

baselines. The legitimacy of those baselines is determined by international acceptance or rejection of the claim.

UNCLOS III recognizes several exceptions to the general rule:

73 UNCLOS III, Article 8.

74 UNCLOS III, Article 5.

Chapter 7

Air, Sea, and Space

128
Straight Baselines may be utilized by the coastal State when its coastline is deeply indented (e.g., Norway)

or there are fringing islands.75 The lines drawn by the coastal State must follow the general direction of the coast.

Straight baselines should not be employed to expand the coastal States national areas. Straight baselines are also drawn

across the mouths of rivers76 and across the furthest extent of river deltas or other unstable coastline features.77

Bays. Depending on the shape, size, and historical usage, the coastal State may draw a baseline across the

mouth of a bay, which makes the bay internal waters. The bay must be a well-marked indentation, and more than a mere

curvature in the coastline. A juridical bay (i.e., one defined by UNCLOS III) must have a water area greater than that of a

semi-circle whose diameter is the length of the line drawn across its mouth (headland to headland) and the closure lines

may not exceed 24 NM.

78 Historic bays (bodies of water with closures of greater than 24 NM) may be claimed as internal

waters where the following criteria is met: the claim of sovereignty is an open, effective, continuous and long term

exercise of authority couple with acquiescenceas opposed to mere absence of oppositionby foreign states.79 The

United States does not recognize any claims to historic bay status, such as Libyas claim to the Gulf of Sidra (closure line

in excess of 300 NM).

Archepelagic Baselines. UNCLOS III allows archipelagic States (those consisting of groups of islands) to

draw baselines around their outermost islands, subject to certain restrictions.80 The waters within are given special status

as archipelagic waters.

Maritime Claims Reference Manual. This DoD publication (available on the Internet at

http://web7.whs.osd.mil/html/20051m.htm) sets out in detail all State claims, including specific points of latitude and

longitude, and the U.S. position in regard to those claims.

Territorial Sea. That zone lying immediately seaward of the baseline. States must claim a territorial sea, to

include its breadth. The maximum breadth is 12 NM.

81 Most States, including the United States, have claimed the full 12

NM. Some States have claimed less than 12 NM, and some have made excessive claims of more than 12 NM. See the

DoD Maritime Claims Reference Manual for claims of specific States, or NWP 1-14 for a synopsis of State claims.

National Airspace includes all airspace over the land territory, internal waters, and territorial sea.82

International Areas

Contiguous Zone. That zone, immediately seaward of the territorial sea, extending no more than 24 NM from

the baseline.83

Exclusive Economic Zone. That zone, immediately seaward of the territorial sea, extending no more than 200

NM from the baseline.84

High Seas includes all areas beyond the Exclusive Economic Zone.

85

75 UNCLOS III, Article 7.

76 UNCLOS III, Article 9.

77 UNCLOS III, Article 7(2).

78 UNCLOS III, Article 10.

79 UNCLOS III, Article 10(6).

80 UNCLOS III, Article 47.

81 UNCLOS III, Article 3.

82 UNCLOS III, Article 2.

83 UNCLOS III, Article 33.

84 UNCLOS III, Articles 55, 57.

85 UNCLOS III, Article 86.

Chapter 7

Air, Sea, and Space

129
International Airspace includes all airspace beyond the furthest extent of the territorial sea.

Outer Space. The Outer Space Treaty and following treaties do not define the point where national airspace ends

and outer space begins, nor has their been any international consensus on the line of delimitation. Some of the potential

delimitations suggested include the upper limit of aerodynamic lift (approximately 80 km), the lowest satellite orbit

(approximately 90 km), and the end of measurable air resistance (approximately 200 km).

Antarctica. The Antarctic Treaty applies to the area south of 60o South Latitude, reserving that area for peaceful

purposes only. Specifically, any measure of a military nature, such as the establishment of military bases and

fortifications, the carrying out of military maneuvers, as well as the testing of any type of weapon, is prohibited.

However, the Treaty does not prejudice the exercise of rights on the high seas within that area.

B

A

S

E

L

I

N

E

12 nm

Territorial

Sea

National International

24 nm

Contiguous

Zone

200 nm

Exclusive Economic Zone

High

Seas

International

Airspace

Outer Space

NAVIGATIONAL REGIMES.

Now that the various legal divisions have been presented, the navigational regimes within those zones will be

discussed. The freedom of navigation within any zone is inversely proportional to the powers that may be exercised by

the coastal State (see the discussion below on State Competencies). Where the State has the greatest powers (e.g., land

territory, internal waters), the navigational regime is most restrictive. Where the State has its least powers (e.g., high seas,

international airspace), the navigational regime is most permissive.

National Areas.

With limited exception, States exercise full sovereignty within their national areas. The navigational regime is

therefore Consent of the State. Although the States consent may be granted based on individual requests, it may also be

manifested generally in international agreements such as:

Chapter 7

Air, Sea, and Space

130
Status of Forces Agreements. These agreements typically grant reciprocal rights, without the need for

securing individual consent, to members of each State party. Such rights may include the right of entry and

travel within the State.

Friendship, Commerce, and Navigation (FCN) Treaties. These treaties typically grant reciprocal rights to

the commercial shipping lines of each State party to call at ports of the other party.

Chicago Convention. States party to the Chicago Convention have granted limited consent to aircraft of

other State parties to enter and land within their territory.

The DoD Foreign Clearance Guide (DoD 4500.54-G, available on the Internet at

http://www.fcg.pentagon.mil/fcg/fcg.htm) sets out the entry and clearance requirements for both aircraft and personnel,

and overflight rights where applicable, for every country.

Exceptions in the Territorial Sea. Although the territorial sea is a national area, the need for greater freedom of

navigation than consent of the coastal State has convinced the international community to recognize the following

exceptions. Note that these exceptions do not apply to internal waters, for which consent remains the navigational

regime.

Innocent Passage. Innocent passage refers to a vessels right to continuous and expeditious transit through a

coastal States territorial sea for the purpose of traversing the seas without entering a States internal waters.86 Stopping

and anchoring is permitted when (1) incident to ordinary navigation, or (2) made necessary by force majeur (e.g.,

mechanical casualty, bad weather, other distress). Passage is innocent so long as it is not prejudicial to the peace, good,

order, or security of the coastal State. There is no provision in international law for prior notification or authorization in

order to exercise that right. UNCLOS III contains no requirement that passage through a States territorial sea be

necessary in order for it to be innocent; it does, however enunciate a list of activities not deemed to be innocent:

any threat or use of force against the sovereignty, territorial integrity, or political independence of the

coastal state or other acts in violation of the principles of international law as embodied in the UN

Charter;

any exercise or practice with weapons of any kind;

any act aimed at collecting information to the prejudice of the security of the coastal state;

any act of propaganda aimed at affecting the defense or security of the coastal state;

launching, landing, or taking on board of any aircraft;

the launching, landing, or taking on board of any military device;

loading or unloading of any commodity, currency or person contrary to the customs, fiscal,

immigration, or sanitary laws and regulations of the coastal state;

any willful and serious pollution;

any fishing activities;

the carrying out of any research or survey activity;

any act aimed at interfering with any system of communication or any other facilities or installations of

the coastal state; and

86 UNCLOS III, Article 18.

Chapter 7

Air, Sea, and Space

131
any other activity not having a direct bearing on passage.

87

The United States takes the position that the above list is exhaustive and intended to eliminate subjective determinations

of innocent passage; if a vessel is not engaged in the above listed activities, its passage is deemed innocent.

Innocent passage extends to all shipping and is not limited by cargoes, armament, or type of propulsion.

Note that UNCLOS III prohibits coastal state laws from having the practical effect of denying innocent passage.

Innocent Passage does not apply to aircraft. Submarines in innocent passage must transit on the

surface, showing their flag.88

Challenges to Innocent Passage: (1) Merchant ships must be informed of the basis for the challenge

and provided an opportunity to clarify intentions or correct the conduct at issue. Where no corrective action is taken by

the vessel, the coastal State may require it to leave or may, in limited circumstances, arrest the vessel. (2) A warship /

state vessel must be challenged and informed of the violation that is the basis for the challenge. Where no corrective

action is taken, the coastal State may require the vessel to leave its territorial sea and may resort to minimum force to

enforce the ejection.89

Suspension of Innocent Passage: A coastal state may temporarily suspend innocent passage if such an

act is essential for the protection of security. Such a suspension must be (1) non-discriminatory; (2) temporary; (3)

applied to a specified geographic area; and (4) imposed only after due publication / notification.

90

Right of Assistance Entry. Based on the long-standing obligation of mariners to aid those in peril on the sea,

the right of assistance entry gives limited permission to enter into the territorial sea to render assistance to those in danger.

The location of the persons in danger must be reasonably well known. The right does not permit a search. Aircraft may

be used to render assistance, though this right is not as well recognized as that for ships rendering assistance. See CJCSI

2410.01A for further guidance on the exercise of the right of assistance entry (available on the Internet at

http://www.dtic.mil/doctrine/jel/cjcsd/cjcsi/2410_01a.pdf).

Transit Passage. Transit passage applies to passage through International Straits, which are defined as: (1)

routes between the High Seas or Exclusive Economic Zone and another part of the High Seas or Exclusive Economic

Zone;91 (2) the strait must be overlapped by the territorial sea of one or more coastal states; (3) there must be no High Seas

or Exclusive Economic Zone route of similar convenience;92 (4) natural, not constructed (i.e., Suez Canal); and (5) must

actually be used for international navigation. The U.S. position is that the strait must be susceptible to such use.

Transit passage is unimpeded, continuous, and expeditious passage through the strait.

93 The

navigational regime is Normal Mode.

94 In Normal Mode ships may launch and recover aircraft if that is normal during

their navigation and submarines may transit submerged. Aircraft may exercise transit passage. Transit passage may not

be suspended by the coastal states.95

Archipelagic Sea Lanes Passage (ASLP). ASLP is the exercise of rights of navigation and overflight, in the

normal mode of navigation, solely for the purpose of continuous, expeditious, and unobstructed transit between one part

87 UNCLOS III, Article 19.

88 UNCLOS III, Article 20.

89 UNCLOS III, Article 30.

90 UNCLOS III, Article 25(3).

91 UNCLOS III, Article 37.

92 UNCLOS III, Article 36.

93 UNCLOS III, Article 38.

94 UNCLOS III, Article 39.

95 UNCLOS III, Article 44.

Chapter 7

Air, Sea, and Space

132
of the High Seas / Exclusive Economic Zone and another part of the High Seas / Exclusive Economic Zone through

archipelagic waters.96

Qualified archipelagic states may designate sea lanes for the purpose of establishing the Archipelagic

Sea Lanes Passage regime within their Archipelagic Waters. States must designate all normal passage routes used as

routes for international navigation or overflight through or over archipelagic waters and the designation must be referred

to the International Maritime Organization (IMO) for review and adoption. In the absence of designation, the right of

ASLP may be exercised through all routes normally used for international navigation.

97 Once Archipelagic Sea Lanes are

designated, transiting ships and aircraft may not deviate more than 25 NM off the ASL axis and must stand off the

coastline no less than 10% of the distance between the nearest points of land on the islands bordering the sea lane. Once

ASLs are designated, the regime of innocent passage applies to Archipelagic Waters outside the sea lanes. Archipelagic

Sea Lanes Passage is non-suspendable; however, if ASLs are designated, innocent passage outside the lanesbut within

Archipelagic Watersmay be suspended in accordance with UNCLOS III.

International Areas.

In all international areas, the navigational regime is Due Regard for the rights of others.98 Although reserved for

peaceful purposes, military operations are permissible in international areas. The U.S. position is that military operations

which are consistent with the provisions of the United Nations Charter are peaceful.

STATE COMPETENCIES

General. The general rule is that the flag state exercises full and complete jurisdiction over ships and vessels that fly

its flag. The United States has, in 18 U.S.C. § 7, defined the special maritime and territorial jurisdiction of the United

States as including registered vessels, U.S. aircraft, and U.S. space craft. Various federal criminal statutes are specifically

made applicable to acts within this special jurisdiction. The power of a State over non-flag vessels and aircraft depends

upon the zone in which the craft is navigating (discussed below) and whether the craft is considered state or civil.

State craft. State Ships include warships99 and ships owned or operated by a State and used only for government

non-commercial service. State Aircraft are those used in military, customs and police services.100

Civil craft are any craft other than state craft. States must set conditions for the granting of nationality to ships

and aircraft. Craft may be registered to only one State at a time.

National Areas.

Land Territory and Internal Waters. Within these areas, the State exercises complete sovereignty, subject to

limited concessions based on international agreements (e.g., SOFA, etc.).

Territorial Sea. As noted above, the navigational regime in the territorial sea permits greater navigational

freedom than that available within the land territory or inland waters of the coastal State. The state competency within the

territorial sea is, therefore, somewhat less than full sovereignty.

Innocent Passage.

96 UNCLOS III, Article 53.

97 UNCLOS III, Article 53(12).

98 UNCLOS III, Article 58 for the Exclusive Economic Zone, Article 87 for the High Seas.

99 For the purposes of this Convention, warship means a ship belonging to the armed forces of a State bearing the external marks distinguishing such

ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate

service list or its equivalent, and manned by a crew which is under regular armed forces discipline. Article 29, UNCLOS III.

100 Article 3, Chicago Convention.

Chapter 7

Air, Sea, and Space

133
Civil. The States power is limited to: (1) Safety of navigation, conservation of resources, control of

pollution, and prevention of infringements of the customs, fiscal, immigration, or sanitary laws; (2) Criminal

enforcement, but only when the alleged criminal act occurred within internal waters, or the act occurred while in innocent

passage, and it affects coastal state;101 (3) Civil Process, but the coastal State may not stop ships in innocent passage to

serve process, and may not arrest ships unless the ship is leaving internal waters, lying in territorial sea (i.e., not in

passage), or incurs a liability while in innocent passage (i.e., pollution).102

State. State vessels enjoy complete sovereign immunity.103 The flag State bears liability for any costs

that arise from a state vessels violation of any of the laws that would otherwise be applicable to civil vessels.

104 The

coastal States only power over state vessels not complying with their rules is to require them to leave the territorial sea

immediately.

Transit Passage and Archepelagic Sea Lane Passage.

Civil. The coastal State enjoys almost no State competencies over those craft in transit passage or

archipelagic sea lane passage, other than those competencies applicable within the Contiguous Zone and Exclusive

Economic Zone. These include customs, fiscal, immigration, and sanitary laws, and prohibitions on fishing.

Additionally, the coastal State may propose a traffic separation scheme, but it must be approved by the International

Maritime Organization.

State vessels enjoy complete sovereign immunity. The flag State bears liability for any costs that arise

from a state vessels violation of any of the laws that would otherwise be applicable to civil vessels.

International Areas.

Contiguous Zone. The Contiguous Zone was created solely to allow the coastal State to exercise its customs,

fiscal, immigration, and sanitary laws.105

Exclusive Economic Zone. Within this area, the coastal State exercises sovereign rights for managing the natural

resources.106 Coastal State consent is required for marine scientific research (no exception for State vessels), but such

consent should normally be given.

107

High Seas.

Civil. On the high seas, the general rule is flag state jurisdiction only.108 Non-flag States have almost no

competencies over craft on the high seas, with the following exceptions:

Ships engaged in the slave trade.109 Every State is required to take measures to suppress the slave

trade by its flagged vessels. If any other State stops a slave vessel, the slaves are automatically

freed.

Ships or aircraft engaged in piracy.

110 Any State may seize, arrest, and prosecute pirates.

101 UNCLOS III, Article 27.

102 UNCLOS III, Article 28.

103 UNCLOS III, Article 30.

104 UNCLOS III, Article 31.

105 UNCLOS III, Article 33.

106 UNCLOS III, Article 56.

107 UNCLOS III, Article 246.

108 UNCLOS III, Article 92,

109 UNCLOS III, Article 99.

Chapter 7

Air, Sea, and Space

134
Ship or installation (aircraft not mentioned), engaged in unauthorized broadcasting.111 Any State

which receives such broadcasts, or is otherwise subject to radio interference, may seize and arrest

the vessel and persons on board.

Right of visit.

112 The right of visit, which is quite similar to a traffic stop to check license and

registration, may only be conducted by state ships and aircraft. There must be a reasonable

suspicion that: (1) the ship visited is engaged in slave trade, piracy, or unauthorized broadcasting;

(2) the ship is without nationality (a ship that belongs to no state belongs to all States); or (3) the

ship, although flying a foreign flag, actually is of the same nationality of the visiting state ship or

aircraft. The visiting State ship may ask to see the visited ships documents.

Hot Pursuit.113 Again only conducted by state ships and aircraft, craft which have committed some

prohibited act may be pursued and captured upon the high seas. The pursued ship must have

violated a law or regulation of the coastal state in any area in which those laws or regulations are

effective. For example, the ship must have violated a customs rule within the CZ, or a fishing

regulation within the Exclusive Economic Zone. The pursuit must commence in the area where the

violation was committed, and must be continuous. Pursuit must end once the ship enters the

territorial sea of another state, including its own.

Terrorism. Over the past 30 years, nations have attempted to combat the problem of criminal

interference with aircraft, specifically hijacking. To deter hijackers these legal strategies must be

supported by strengthened airport security, commitment to prosecute terrorists, and sanctions

against states that harbor terrorists. Hijacking is usually not an act of piracy as defined under

UNCLOS III. Nations have entered into multilateral agreements to define the offense of hijacking

and deter hijacking as a method of terrorism. These conventions include the Tokyo Convention,

Hague Convention, and Montreal Convention.

State. State vessels are absolutely immune on the high seas.

114

110 UNCLOS III, Articles 101-107.

111 UNCLOS III, Article 109.

112 UNCLOS III, Article 110.

113 UNCLOS III, Article 111.

114 UNCLOS III, Article 95.

Chapter 7

Air, Sea, and Space

135
Legal Division Navigational Regime State Competency

Land Territory Consent Full sovereignty

Internal Waters Consent Full sovereignty

Territorial Sea Innocent Passage (ships only) Limited navigational, criminal, and

civil

International Straits Transit Passage/Normal mode Fiscal, customs, immigration, and

sanitary

Archipelagic Sea Lanes Archipelagic Sea Lane Passage Fiscal, customs, immigration, and

sanitary

Contiguous Zone Due Regard Fiscal, customs, immigration, and

sanitary

Exclusive Economic Zone Due Regard Natural resources

High Seas Due Regard Almost none

Chapter 7

Air, Sea, and Space

136
CHAPTER 8

CIVILIAN PERSONNEL SUPPORTING MILITARY OPERATIONS

REFERENCES

1. DoDD 1404.10, Emergency-Essential (EE) DoD U.S. Citizen Civilian Employees, 10

April 1992.

2. DoDD 1400.31, DoD Civilian Work Force Contingency and Emergency Planning and

Execution, 28 April 1995.

3. DoDI 1400.32, DoD Civilian Work Force Contingency and Emergency Planning

Guidelines and Procedures, 24 April 1995.

4. AR 690-11, Mobilization Planning and Management, 14 September 1990.

5. DA Pam 690-47, DA Civilian Employee Deployment Guide, 1 November 1995.

6. DA Pam 715-16, Contractor Deployment Guide, 27 February 1998.

7. AFI 36-3026(I), Identification Cards for Members of the Uniformed Services, Their

Family Members, and Other Eligible Personnel, 29 July 1999 (Joint Instruction Adopted

by Order of the Secretaries of the Air Force, Army, Navy, Marine Corps, and Coast

Guard.)

8. Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. §3261.

INTRODUCTION

Civilian employees have always accompanied the force during operations. Recently, Operations DESERT STORM

and Joint Endeavor highlighted civilian employees importance to the military mission. Civilian employees perform a

number of jobs formerly held by soldiers, in areas as diverse as recreation specialists and intelligence analysts. Civilian

employees importance is reflected in the following Department of Defense Instruction:

It is DoD policy that the DoD civilian workforce shall be prepared to respond rapidly, efficiently, and

effectively to meet mission requirements for all contingencies and emergencies. (DoDI 1400.32, para

4.)

An understanding of the process for designating, training, and directing the efforts of emergency-essential civilians

(EE) while deployed is essential for judge advocates advising commanders while deployed.

DESIGNATING EMERGENCY ESSENTIAL POSITIONS

The first step in designating an EE position is to identify positions required to be performed in deployed

environments, which a military member can not be expected to perform because the position requires uninterrupted

performance. Civilian positions should be designated EE only when civilians are required for direct support to combat

operations, or to combat systems support functions that must be continued, and that could not otherwise immediately be

met by using deployed military possessing the skills in the number and in the functions expected to be needed to meet

combat operations or systems support requirements in a crisis situation.

The specific crisis situation duties, responsibilities and physical requirements of each EE position must be identified

and documented to ensure EE employees know what is expected. Documentation can be annotation of EE duties in the

existing peacetime position descriptions; a brief statement of crisis situation duties attached to position descriptions if

materially different than peacetime duties; or separate EE position descriptions.

Advise applicants for EE positions that individuals selected to fill these positions are required to sign the DD Form

2365, DoD Civilian Employee Overseas Emergency-Essential Position Agreement. The agreement documents that

incumbents of EE positions accept certain conditions of employment arising out of crisis situations wherein EE

Chapter 8

Civilian Personnel

137
employees shall be sent on temporary duty, relocate to duty stations in overseas areas, or continue to work in overseas

areas after the evacuation of other U.S. citizen employees who are not EE. All individuals selected for EE positions must

be exempted from recall to the military Reserves or recall to active duty for retired military.

The EE position designation is included in the position description of each EE identified position. Example:

This position is emergency-essential (EE). In the event of a crisis situation, the incumbent or

designated alternate, must continue to perform the EE duties until relieved by proper authority. The

incumbent or the designated alternate may be required to take part in readiness exercises. This position

cannot be vacated during a national emergency or mobilization without seriously impairing the

capability of the organization to function effectively; therefore, the position is designated key, which

requires the incumbent, or designated alternate, to be screened from military recall status.

Incumbents of positions that become EE must sign DD Form 2365 as soon as reasonably practicable and consistent

with the needs of the military mission. Employees who decline to sign the agreement should be detailed or reassigned to

non-EE positions. If that is not possible, no tour extensions should be approved. If an employee declines to sign the

agreement, but possesses special skills and expertise, which in managements view renders it necessary to send that

employee on the assignment without signing the agreement, the employee may be directed on involuntary temporary duty

to the location where the employees skills are required. All civilian employees deploying to combat operations/crisis

situations are considered EE regardless of volunteer status or the signing of the EE position agreement. The employee

will be in an EE status for the duration of the assignment.

DEPLOYMENT PREPARATIONS

Identification. Issue EE employees, or employees occupying positions determined to be EE, the DD Form 489, Geneva

Convention Identity Card for Civilians Who Accompany the Armed Forces, or DD Form 1934, Geneva Convention

Identity Card for Medical and Religious Personnel Who Serve In or Accompany the Armed Forces, as appropriate. EE

employees can be issued DD Form 2764, United States DoD/Uniformed Services Civilian Geneva Conventions

Identification Card. The DD Form 2764 is an automated identification card available on the Real Time Automated

Personnel Identification System (RAPIDS) and is not a manual form like the DD Form 469. If the RAPIDS system is not

available, the DD Form 489 is a valid manual identification card for EE employees. EE employees shall also be issued

passports, visas, country clearances, and any required security clearances.

Documentation. Civilian employees fill out DD Form 93, Record of Emergency Data. Components will establish

procedures for storing, and accessing civilian DD 93s, and for civilian casualty notification and assistance that are the

same as or parallel to those for military personnel.

Clothing and Equipment Issue. Organization Clothing and Individual Equipment (OCIE) will be issued to EE and other

civilians who may be deployed, and will be worn in a tactical environment in accordance with supported unit procedures.

Maintenance and accountability of OCIE is the employees responsibility. Personal clothing and care items are the

responsibility of the individual. Civilian employees should bring work clothing required by their particular job.

Training Requirements. Civilian EE employees shall be provided with the same specialized training as military

members on a periodic basis and prior to any deployment, including the use of protective gear. Training on their

responsibilities as members of the force, e.g. standards of conduct, cultural awareness training, as well as coping skills if

they become Prisoners Of War, Law of War training, and training in the Uniform Code of Military Justice should also be

provided.

Medical and Dental Care. Prior to deployment, provisions shall be made for EE employee medical care in the theater of

operations. As part of pre-deployment preparations, EE employees shall receive the same immunizations as military

personnel in theater. EE employees may be ordered to submit to required immunizations for service in the theater, and

may be subjected to discipline for failing to submit. EE employees shall be tested for HIV before deployment, if the

country of deployment requires it. DA policy (DA DCSPER/ OTJAG decision) is that when a requirement exists for

mandatory HIV screening, and the test is positive, the individual can be deployed in support of a contingency operation if

the host country is notified and the EE employee is able to perform assigned duties. EE employees shall receive medical

Chapter 8

Civilian Personnel

138
and dental examinations and, if warranted, psychological evaluations to ensure fitness for duty in the theater. Civilians

shall carry with them a minimum of a 90-day supply of any medication they require.

During a contingency, returning EE civilians shall receive cost-free military physical examinations within 30 days if

the medical community decides it is warranted, or required for military personnel.

Casualty, Mortuary, and Family Care. All EE civilians who PCS or are TDY outside the United States shall have

panarex or DNA samples taken for identification purposes. Dental x-rays may be substituted when the ability to take

panarex or DNA samples is not available. Civilians may also be issued dog tags for identification purposes.

EE civilians with dependents who are in or deploying to a theater of operations are encouraged to make Family Care

Plans. As a condition of employment, single parents or families where both parents are emergency-essential civilians, are

required to prepare a family care plan which is equivalent to that required of military (AR 690-11).

Graves Registration personnel shall process civilians killed in a theater of operations. An escort officer is authorized,

and a flag shall be purchased for the casket at Government expense.

Legal Assistance. Legal assistance, including wills and any necessary powers of attorney relating to deployments, is

available to EE notified of deployment, as well as their families, and will be available throughout the deployment. It is

limited to deployment related matters as determined by the on-site supervising attorney.

Weapons Certification and Training. Under certain conditions, and subject to training IAW FM 23-35 in proper use

and safe handling of firearms, EE employees may be issued personal self-defense sidearms. Acceptance of a sidearm is

voluntary. Authority to carry sidearms is contingent upon the approval and guidance of the supported Combatant/

MACOM Commander. Only government issued sidearms/ammunition are authorized.

COMMAND AND CONTROL DURING DEPLOYMENTS.

During deployments, EE are under the direct command and control of the on-site supervisory chain who will perform

the normal supervisory functions, such as performance evaluations, task assignments and instructions, and initiating and

effecting recognition and disciplinary actions.

On-site commanders may impose special rules, policies, directives, and orders based on mission necessity, safety,

and unit cohesion. These restrictions need only be considered reasonable to be enforceable.

COMMON ISSUES DURING DEPLOYMENTS.

Tour of Duty. The Administrative workweek constitutes the regularly scheduled hours for which an EE civilian must

receive basic and premium pay. Under some conditions, hours worked beyond the administrative workweek may be

considered to be irregular and occasional, and compensatory time may be authorized in lieu of overtime/premium pay.

The in-theater commander or his representative has the authority for establishing and changing EE tours of duty. The intheater commander will establish the duration of the change.

Overtime. EE civilians whose basic rates of pay do not exceed that of a GS-10, step 1, will be paid at a rate of one and

one-half times their basic hourly pay rate for each hour of work authorized and approved over the normal 8 hour day or

40 hour week. Employees whose rate exceeds that of a GS-10, Step 1, will be paid at the rate of one and one-half times

the basic hourly rate of a GS-10, Step 1. If overtime is not approved in advance, the EE employees travel orders should

have this statement in the remarks column: Overtime authorized at TDY site as required by the Field Commander. Time

and attendance reports should be sent to (name and address). Field commanders should then submit to the EE

employees home installation a DA Form 5172-R, or local authorization form (with a copy of the travel orders),

documenting the actual premium hours worked by each EE employee for each day of the pay period as soon as possible

after the premium hours are worked.

On Call Employees. Emergencies or administrative requirements that might occur outside the established work hours

may make it necessary to have employees on-call. On-site commanders may designate employees to be available for

Chapter 8

Civilian Personnel

139
such a call during off-duty times. Designation will follow these guidelines: 1) A definite possibility that the designated

employees services might be required; 2) On-call duties required will be brought to the attention of all employees

concerned; 3) If more than one employee could be used for on-call service, the designation should be made on a rotating

basis; 4) The designation of employees to be on-call or in an alert posture will not, in itself, serve as a basis for

additional compensation (i.e., overtime or compensatory time). If an employee is called in, the employee must be

compensated for a minimum of two hours.

Leave Accumulation. Any annual leave in excess of the maximum permissible carry-over is automatically forfeited at

the end of the leave year. Annual leave forfeited during a combat or crisis situation, which has been determined by

appropriate authority to constitute an exigency of the public business, may be temporarily restored. However, the

employee must file for carry-over. Normally, the employee has up to two years to use restored annual leave.

Foreign Post Differential. Employees assigned to work in foreign areas where the environmental conditions either differ

substantially from CONUS conditions or warrant added compensation as a recruiting and retention incentive are eligible

for Foreign Post Differential (FPD) after being stationed in the area in excess of 41 days. FPD is exempt from the pay

cap and is paid as a percentage of the basic pay rate not to exceed 25% of the basic pay. The Department of State

determines areas entitled to receive FPD, the FPD rate for the area, and the length of time the rate is in effect. Different

areas in the same country can have different rates.

Pay and allowances during deployments. Civilian employees receive the same pay and allowances to which they were

entitled prior to deploying, and to which they would become entitled thereafter (i.e., within grade increases). There is no

tax exclusion for civilian employees similar to the combat tax exclusion for military members.

Danger Pay. Civilian employees serving at or assigned to foreign areas designated for danger pay by the Secretary of

State because of civil insurrection, civil war, terrorism or wartime conditions which threaten physical harm or imminent

danger to the health or well being of a majority of employees stationed or detailed to that area, will receive a danger pay

allowance (DPA). The allowance will be a percentage of the employees basic compensation at the rates of 15, 20, or 25

percent as determined by the Secretary of State. This allowance is in addition to any foreign post differential prescribed

for the area but in lieu of any special incentive differential authorized the post prior to its designation as a danger pay

area. The DPA commences for employees already in the area on the date of the areas designation for danger pay. For

employees later assigned or detailed to the area, DPA commences upon arrival in the area. For employees returning to

the post after a temporary absence it commences on the date of return. DPA will terminate with the close of business on

the date the Secretary of State removes the danger pay designation for the area or on the day the employee leaves the post

for any reason for an area not designated for the DPA. The DPA paid to Federal civilian employees should not be

confused with the Imminent Danger Pay (IDP) paid to the military. The IDP is triggered by different circumstances and

is not controlled by the Secretary of State.

Life Insurance. Federal civilian employees are eligible for coverage under the Federal Employees Group Life Insurance

(FEGLI) program. Death benefits (under basic and all forms of optional coverage) are payable regardless of cause of

death. Civilians who are deployed with the military to combat support roles during times of crises are not in actual

combat and are entitled to accidental death and dismemberment benefits under FEGLI in the event of death. Similarly,

civilians carrying sidearms for personal protection are not in actual combat.

CONTRACTOR EMPLOYEES

In all countries engaged in war, experience has sooner or later pointed out that contracts with private men of

substance and understanding are necessary for the subsistence, covering, clothing, and moving of any Army.  Robert

Morris, Superintendent of Finance, 1781.

Contractor employees have also served with the force during contingency operations. Although the United States

Government has a similar relationship towards its contractor employees as it does towards its civilian employees; there

are significant differences which must be resolved by referring to specific contractual language which defines the

relationship of the contractor employee to the United States.

Chapter 8

Civilian Personnel

140
Command and Control. The command and control of contractor employees is significantly different than that of EE

employees. For contractor employees, command and control is tied to the terms and conditions of the government

contract. Contractor employees are not under the direct supervision of military personnel in the chain of command. The

Contracting Officer (KO) or the Contracting Officers Representative (KOR) is the designated liaison for implementing

contractor performance requirements. While the government does not directly command and control contractor

employees, key performance requirements should be reflected in the contract. For example, theater commander

directives, orders and essential standard operating procedures can be incorporated into the government contract. If those

requirements should change, to satisfy the commanders new requirements the contracting officer can modify the

contract. Contractor employees will be expected to adhere to all guidance and obey all instructions and general orders

issued by the Theater Commander. All instructions and guidance will be issued based upon the need to ensure mission

accomplishment, personal safety, and unit cohesion. If the instructions and orders of the Theater Commander are

violated, the Theater Commander may limit access to facilities and/or revoke any special status that a contractor

employee has as an individual accompanying the force. The KO or KOR may also direct that the contractor remove from

the theater of operations any contractor employee whose conduct endangers persons or property or whose continued

employment is inconsistent with the interest of military security.

Legal Assistance. Contractor employees in the U.S. preparing to deploy abroad, or already deployed overseas, to

perform work pursuant to any contract or subcontract, generally will not be eligible to receive legal assistance from

military or civilian attorneys, and should satisfy all legal requirements they deem necessary, such as a last will and

testament, guardianship arrangements for children and estate planning, with privately retained attorneys before

deployment.

Exceptions: If contractor employees are accompanying the Forces outside the United States, they may receive certain

legal assistance from attorneys when DA or DoD is contractually obligated to provide this assistance as part of their

logistical support. The specific terms of the contract under which contractor employees are deploying must be reviewed

to verify if DA is obligated to provide legal service. Where DA is under a contractual obligation to provide legal

assistance, the following rules apply: 1) If the legal assistance is to be provided overseas, it must be in accordance with

applicable international agreements or approved by the host nation government. 2) Legal assistance, is limited to

ministerial service (for example notarial services), legal counseling (to include the review and discussion of legal

correspondence and documents), and legal document preparation (limited to powers of attorney and advanced medical

directives) and help on retaining civilian attorneys. Note that contract employee status is irrelevant if the person is an

authorized recipient of legal assistance services, e.g. Retiree or family member otherwise authorized legal assistance

services.

Identification Cards. Contractor employees will receive the following three distinct forms of identification: DD Form

1173 (Uniformed Services Identification and Privilege Card). This card is required for access to facilities and use of

privileges afforded to military, government civilians and/or military dependents. DD Form 489 (Geneva Conventions

Identity Card for Persons who Accompany the Armed Forces). This card identifies ones status as a contractor employee

accompanying the U.S. Armed Forces. This card must be carried at all times. Personal identification tags that include the

following information: full name, social security number, blood type and religious preference. These tags should be worn

at all times. In addition, other identification cards, badges, etc., may be issued depending upon the basis for the operation.

For example, when U.S. forces participate in United Nations (UN) or multinational peace-keeping operations, contractor

employees may be required to carry identification that verifies their relationship to the UN or multinational force. If their

employer processes contractor employees for deployment, it is the employers responsibility to ensure its employees

receive required identification.

Organizational Clothing and Equipment Issue. Personal clothing and personal care items, to include both casual attire

and work clothing required by the assignment, are the responsibility of the individual contractor employee and will not be

issued at the processing center. If required by the Theater Commander, the deployment processing center will issue

Organizational Clothing and Individual Equipment (OCIE) to contractor personnel. The wearing of such equipment by

contractor personnel, however, is voluntary, unless required in the contractual agreement.

Force Protection. The government will provide force protection for those contractor personnel accompanying forwarddeployed forces.

Chapter 8

Civilian Personnel

141
Weapons and Training. Individual Deployment Sites (IDS) or CONUS Replacement Centers (CRC) may issue

sidearms to contractor employees for their personal self-defense. The issuance of such weapons must be authorized by

the Theater Commander and must comply with military regulations regarding firearms training and safe handling.

Weapons familiarization is provided to contractor employees as part of the IDS/CRC deployment processing. The

acceptance of self-defense weapons by a contractor employee is voluntary and should be in accordance with the gaining

theater and the contractors company policy regarding possession and/or use of weapons. Authorization for the use of

privately owned weapons may be required through the U.S. Embassy channels vice military chain of command.

Weapons safety and training may be also implemented by embassy Regional Security Officers (RSOs).

CONTRACTOR ISSUES DURING DEPLOYMENTS

Vehicle and Equipment Operation. Deployed contractor employees may be required to operate U.S. military,

government owned or leased equipment such as generators and vehicles. Contractor personnel may also be required to

obtain a local license for the country they are being deployed to, i.e. German drivers license. While operating a military

owned or leased vehicle, a contractor employee is subject to the local laws and regulations of the country, area, city,

and/or camp in which he/she is deployed. Traffic accidents or violations usually will be handled in accordance with the

local laws, the Status of Forces Agreement, and/or Theater Commander guidance. If a contractor employee does not

enjoy special status under the Status of Forces Agreement, then he/she may be subject to criminal and/or civil liabilities.

Therefore, the employee or contractor may be held liable for damages resulting from negligent or unsafe operation of

government military vehicles and equipment.

Living under field conditions. Generally, a contractor employees living conditions, privileges, and limitations will be

equivalent to those of the units supported unless the contract specifically mandates or prohibits certain living conditions.

Medical and Dental care. Military and/or host nation emergency medical and dental care will be available to contractors

should the need arise, at a level commensurate with that afforded government employees and military personnel.

Deployed contractor personnel generally do not receive routine medical and dental care at military medical treatment

facilities unless specifically included in the contract. In the absence of such agreements, contractors should make

provisions for their employees medical and dental care.

MWR Support. Contractor employees may be eligible to use some or all MWR facilities and activities subject to the

installation or Theater Commanders discretion and the terms of the contract. U.S. citizen contractor employees may be

eligible for use of Army and Air Force Exchange Service (AAFES) facilities for health and comfort items. Use of these

facilities will be based on the installation or Theater Commanders discretion, the terms of the contract with the

government, and the terms of the applicable Status of Forces Agreement.

Status of Forces Agreements (SOFAs). Contractor employees status will depend upon the specific provisions of the

SOFA, if any, that are applicable between the U.S. and the country of deployment at the time of deployment. Contractor

employees may or may not be subject to criminal and/or civil jurisdiction of the host country to which they are deploying.

The North Atlantic Treaty Organization (NATO) SOFA is generally accepted as the model for bilateral and multilateral

SOFAs between the U.S. Government and host nations around the world. The NATO SOFA covers three general classes

of sending state personnel: Members of the force, i.e., members of the armed forces of the sending state; Members of

the civilian component,  i.e., civilian employees of the sending state; Dependents, i.e., the spouse or child of a

member of the force or civilian component that is dependent upon them for support. Under the generally accepted view

of the NATO SOFA, contractor employees are not considered members of the civilian component. Accordingly,

special technical arrangements or international agreements generally must be concluded to afford contractor employees

the rights and privileges associated with SOFA status.

Discipline of Contractor Employees. Contractor personnel may have administrative privileges (i.e., suspension of

exchange or MWR privileges, etc.) suspended for disciplinary infractions. Such conduct includes making any sale,

exchange, transfer, or other disposition of exchange merchandise or services to unauthorized persons, whether or not for a

profit; using exchange merchandise or services in the conduct of any activity for the production of an income; theft of

exchange merchandise or other assets by shoplifting; and intentional or repeated presentation of dishonored checks or

other indebtedness. The process for removal of contractor employees from the theater of operations is dependent upon

the policies issued by the Theater Commander, and the extent to which those policies are incorporated in the terms of the

contract and are exercised through the contracting officer.

Chapter 8

Civilian Personnel

142
Tours of Duty and On-Call Requirements. A contractor employees Tour of Duty is established by the employer

and the terms and conditions of the contract between the employer and the government. On-call requirements, if any, will

be included as special terms and conditions of an employers contract with the Government.

CRIMINAL JURISDICTIONAL ISSUES

On 22 November 2000, the President signed the Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. §3261.

This legislation provides federal criminal jurisdiction over DoD civilian employees, dependents and contractors

accompanying the force overseas. Crimes punishable by over a year are covered by the legislation. The implementing

guidance is forthcoming.

The Military Extraterritorial Jurisdiction Act of 2000 fills a large jurisdictional gap overseas but it does not replace

existing Status of Forces Agreements (SOFA). Deployed Judge Advocates must still look to the SOFA for controlling

guidance on jurisdiction.

Chapter 8

Civilian Personnel

143
Chapter 8 Civilian Pers

onnel

144
CHAPTER 9

FOREIGN AND DEPLOYMENT CLAIMS

REFERENCES

1. AR 27-20, Claims (31 December 1997).

2. AR 27-40, Litigation (19 September 1994).

3. DA Pamphlet 27-162, Claims (1 April 1998).

4. USARCS Federal Tort Claims Handbook (September 1998).

5. JA 241, Federal Tort Claims Act (May 2000).

6. DA Pamphlet 27-50-282, The Army Lawyer (Claims Report).

7. Claims Forum, JAGCNet.

8. JAGINST 5890.1 (JAGMAN) (17 January 1991).

9. JAGINST 5800.7C, chapter 8 (30 October 1990).

10. AFI 51-501, Tort Claims (1 May 1996).

11. AFI 51-502, Personnel and Government Recovery Claims (1 March 1997).

INTRODUCTION

Most deployments, mobilizations, disaster relief operations, or routine field exercises involve the movement of large

amounts of equipment and personnel. Careful planning and execution can reduce the amount of property damage or loss

and personal injuries that occur during such operations. Some damage, loss, and injuries are unavoidable, however, and

claims will definitely result. Claimants will include local residents, host nation governments, allied forces, and even U.S.

service members. To ensure friendly relations with the local population and maintain the morale of our own troops,

deploying judge advocates must be prepared to thoroughly investigate, impartially adjudicate, and promptly settle all

meritorious claims.

SINGLE SERVICE RESPONSIBILITY

Department of Defense Directive 5515.8, Single Service Assignment of Responsibility for Processing of Claims,

assigns to each service exclusive geographical responsibility for settling tort claims against and on behalf of all of the

Department of Defense. However, this Directive is often amended by memorandum. When processing tort claims, judge

advocates must use the rules and regulations of the service that has single service responsibility for the country in which

the claim arose. The current single service responsibility assignments are listed in Appendix A. If a judge advocate is

deploying to an area where single service responsibility has not yet been established, it may be appropriate to seek an

interim assignment of responsibility from the responsible Unified or Specified Commander. This is accomplished

through the command claims service responsible for the area of operations.

POTENTIAL CLAIMS

The statutes and regulations that provide relief for damages resulting from deployments often overlap. To determine

the proper claims statutes and regulations to apply, one must look to the applicable regulations, the status of the claimant,

the location of the incident giving rise to the claim, and the type of incident. Although a judge advocate may encounter

some of the same types of claims while deployed as seen at their home station, most deployment claims operations will

differ from those conducted in garrison in several respects. Additionally, not all claims for payment (for example,

claims arising out of a contract) are cognizable under the military claims system.

Chapter 9

Claims

145
TYPES OF CLAIMS APPLICABLE DURING A DEPLOYMENT

Claims Cognizable under the Federal Tort Claims Act (FTCA).

115 The Federal Tort Claims Act provides a limited

waiver of sovereign immunity for the negligent or wrongful acts or omissions of government employees acting within the

scope of employment. In other words, if someone is harmed by the tortious conduct of one of our service members or

employees, they may file a claim. If the FTCA claim is not settled satisfactorily, the claimant may sue in Federal court.

The FTCA is an exclusive remedy when applicable. However, the FTCA will not apply in most deployments because it

does not cover acts or omissions that occur outside the United States. As a practical matter, the FTCA will apply most

often in U.S.-based disaster relief operations.

116

Claims Cognizable under the Personnel Claims Act (PCA).

117 The PCA applies worldwide; however, it is limited to

claims for loss, damage, or destruction of personal property of military personnel and Department of Defense civilian

employees that occur incident to service. Valid PCA claims commonly arising in deployment situations include: loss of

equipment and personal items during transportation; certain losses while in garrison quarters; losses suffered in an

emergency evacuation; losses due to terrorism directed against the United States; and the loss of clothing and articles

being worn while performing military duties. No claim may be approved under the PCA when the claimants negligence

caused the loss. Prompt payment of service members and civilians PCA claims is essential to maintenance of positive

morale in the unit. Unit claims officers must be prepared to comply fully with small claims procedures immediately upon

arrival at the deployment or exercise site.

118

Claims Cognizable under the Military Claims Act (MCA).

119 The MCA also applies worldwide. CONUS tort claims

must first be considered under the FTCA, however. Overseas, the MCA will apply only when the claim cannot be paid

under the PCA or the Foreign Claims Act. These limitations generally restrict application of the MCA overseas to claims

made by family members accompanying the force. There are two bases of liability under the MCA. The first requires

damage or injury caused by an act or omission determined to be negligent, wrongful, or otherwise involving fault of

military personnel . . . acting within the scope of their employment. The second permits a form of absolute liability for

damage or injury caused by noncombat activities. Noncombat activities are defined as an activity essentially

military in nature, having little parallel in civilian pursuits.

120 Examples include maneuver damage caused by the

administrative movement of troops and equipment to and from military operations and exercises, and military training.

Claims Cognizable under the Foreign Claims Act (FCA).

121 The FCA is the most widely used claims statute in

foreign deployments. Since the FCA applies only overseas and, therefore, is not used routinely by CONUS-based claims

offices, judge advocates and unit claims officers must familiarize themselves with its provisions and compile as much

supporting information (e.g., country law summaries) as possible before deployment. Under the FCA, meritorious claims

for property losses, injury or death caused by service members or the civilian component of the U.S. forces may be settled

[t]o promote and maintain friendly relations with the receiving state. Claims that result from noncombat activities or

negligent or wrongful acts or omissions are also compensable.122 Categories of claims that may not be allowed include

losses from combat, contractual matters, domestic obligations, and claims which are either not in the best interest of the

U.S. to pay, or which are contrary to public policy.123

115 28 U.S.C. §§ 2671  2680.

116 For more information on disaster relief operations see Noncombat Deployment Operations, infra.

117 31 U.S.C. § 3721.

118 Under the small claims procedures set forth in AR 27-20, paras. 11-10 and 2-17, personnel claims that can be paid for $1,000 or less and tort claims

that can be settled for $2,500 or less should be settled or paid within one working day of receipt. Although the claims officer cannot ensure payment of

these claims, early coordination with the finance and accounting office and the designated Class A agent will also speed up the payment process.

119 10 U.S.C. § 2733.

120 AR 27-20, Glossary, sec. II.

121 10 U.S.C. § 2734.

122 AR 27-20, para. 10-3.

123 AR 27-20, para. 10-4.

Chapter 9

Claims

146
Similar to the MCA, claims under the FCA may be based either on the negligent or wrongful acts or omissions of

U.S. military personnel or the noncombat activities of U.S. forces. Unlike the MCA, however, there generally is no scope

of employment requirement. The only actors required to be in scope for the United States to have liability are local

nationals of the host nation who work for the United States. The FCA allows payment of claims filed by inhabitants of

foreign countries for personal injury, death, or property loss or damage caused by U.S. military personnel outside of the

United States. Inhabitants includes receiving state and other non-U.S. nationals and all levels of receiving state

government. These are proper claimants.124 Enemy or unfriendly nationals or governments, insurers and subrogees,

U.S. inhabitants, and U.S. military and civilian component personnel, if in the receiving state incident to service, are

improper claimants.125

FCA claims should be presented in writing to U.S. or other authorized officials within two years of accrual. Oral

claims may be accepted, but they must later be reduced to writing. All claims, oral or written, should state the time, place

and nature of the incident; the nature and extent of damage, loss, or injury; and the amount claimed. A claim must be

stated in the local currency or the currency of the country of which the claimant was an inhabitant at the time of loss.126

FCA claims are investigated and adjudicated by foreign claims commissions (FCC). FCCs may have one or three

members. They are usually comprised of judge advocate claims officers, although unit claims officers often serve as

single member commissions as well. At least two members of three-member FCCs must be judge advocates or claims

attorneys. Regardless of their composition, proper authority must appoint FCCs.127 These appointments should take place

before deployment whenever possible. All legal offices subject to mobilization or deployment should identify FCC

members and alternates as a part of their predeployment planning.

In adjudicating claims under the FCA, the FCC applies the law of the country in which the claim arose to determine

both liability and damages. This includes the local law or custom pertaining to contributory or comparative negligence

and to joint tortfeasors. Punitive damages, court costs, attorney fees, bailment and filing costs are not allowed. Before

deploying, judge advocates should become familiar with the application of foreign law and attempt to compile local law

summaries for all countries in which the unit is likely to conduct operations.

128 After deployment, claims personnel may

contract for local attorney assistance or obtain information on local law and custom from the U.S. Consulate or Embassy

located in country.129

Once the FCC issues its final decision, and the claimant signs the settlement form, the FCC then certifies the claim to

the local Defense Finance and Accounting Office for payment in local currency. If an FCC intends to deny a claim,

award less than the amount claimed, or recommend an award less than claimed but in excess of its authority, it must

notify the claimant. This notice will give the claimant an opportunity to submit additional information for consideration

before a final decision is made. When a FCC proposes an award to a claimant, it also forwards a settlement agreement

that the claimant may either sign or return with a request for reconsideration.

124 AR 27-20, para. 10-2a.

125 AR 27-20, para. 10-4h and i.

126 AR 27-20, para. 10-9b.

127 In the Army, normally the Commander of the U.S. Army Claims Service appoints FCCs. The U.S. Army Claims Service has developed an off-the

shelf appointment package and can assist in the speedy appointment of FCCs. Unless otherwise limited in an appointment letter, a one-member FCC

who is either a judge advocate or a claims attorney may pay or deny claims for up to $15,000. Line-officer commissioners may pay claims for up to

$2,500, although they have no denial authority. A three-member FCC may deny claims of any amount, and settle claims for up to $50,000. Two

members of a three-member FCC constitute a quorum, and decision is by majority vote. U.S. Army Claims Service (USARCS) is the settlement

authority for claims in excess of $50,000. The Secretary of the Army or his designee will approve payments in excess of $100,000. All payments must

be in full satisfaction of the claim against the U.S., and all appropriate contributions from joint tortfeasors, applicable insurance, or Article 139, UCMJ,

proceedings must be deducted before payment. Advance payments may be authorized in certain cases. See AR 27-20, paras. 10-6 to 10-9.

128 Before deploying, Army Judge Advocates responsible for unit claims management should contact the chief of claims in the SJA office of the unified

command responsible for that particular country and the U.S. Army Claims Service, Tort Claims Division, Foreign Torts Branch, Fort Meade, Maryland

20755-5360 (Comm 301-677-7009/DSN 923-7009) for further information and guidance.

129 Although the Army claims regulation does not specifically set out conflicts of laws provisions, general principles applicable to tort claims are set out

in AR 27-20, para. 3-5. These principles may be used in situations where the local law and custom are inapplicable because of policy reasons, or where

there is a gap in local law coverage.

Chapter 9

Claims

147
Claims Cognizable under International Agreements (SOFA Claims).

130 As a general rule, the FCA will not apply in

those foreign countries with which the U.S. has an agreement that provides for the settlement or adjudication and cost

sharing of claims against the United States arising out of the acts or omissions of a member or civilian employee of an

armed force of the United States.

131 For example, if a unit deploys to Korea, Japan, or any NATO country, claims

matters will be managed by a command claims service under provisions outlined in the applicable status of forces

agreement.132

A deployment to a SOFA country places additional predeployment responsibilities on judge advocates. First,

knowledge of the claims provisions contained in the applicable SOFA is mandatory. Second, judge advocates must be

aware of receiving state procedures for the settlement of claims. The SJA element of the deploying unit may

legitimately expect and plan for technical assistance from the servicing command claims service and should coordinate

with that service prior to deployment.

Claims Cognizable under the Public Vessels Act (PVA) and Suits in Admiralty Act (SAA). The PVA and SAA

provide broad waivers of sovereign immunity for property damage and personal injury claims arising from maritime torts

caused by an agent or employee of the government, or a vessel or other property in the service of the government. Such

claims typically arise from the negligent maintenance or operation of government vessels or aircraft. Claims may also

take the form of demands for compensation for towage and salvage services, including contract salvage, rendered to a

government vessel or to other property owned by the government.

133

Both the PVA and SAA contain two-year limitation periods running from the date of the event upon which a claim is

based. No administrative claim is required under the PVA and SAA. However, when a claim lies under the Admiralty

Jurisdiction Extension Act, 46 U.S.C. app. § 740, a claim is required. If a claim is filed, unlike a FTCA claim, no

particular form is needed to assert an admiralty tort claim. However, a claimant will bear the burden of providing

evidence from which government liability and the full measure of damage can be determined with a reasonable degree of

certainty. Filing a claim does not toll the two-year limitation period. If an admiralty tort claim is denied, a claimants

only recourse is to file suit in federal district court within the two-year limitation.

Unlike the FTCA, the waiver of immunity under the PVA and SAA includes admiralty tort claims arising in

international waters or in the territorial waters of a foreign country. While the PVA and SAA contain no express

exceptions to their broad waivers, as does the FTCA, most federal courts have incorporated, by implication, the

discretionary function exception into the PVA/SAA.

Applicability of International Agreements to Admiralty Claims. Admiralty claims may or may not fall under the

applicable SOFA. All personal injury or death claims arising from the operation of an U.S. government vessel or the

actions of government personnel in a host countrys territorial waters are adjudicated by the host country under a SOFAs

claims provisions. However, property damage claims arising from the navigation or operation of a ship usually fall

outside the terms of the SOFA. In some instances, however, supplementary agreements may further modify the

provisions of a SOFA. In Japan, for example, certain small fishing vessel and net damage claims were brought within the

scope of the SOFA adjudication by the 1960 Note Verbale to the SOFA, even though the damage is caused by a U.S.

warship.

Separately, government-to-government admiralty claims for damage are waived by parties to a SOFA under the socalled knock for knock provisions. Even when you suspect that a knock-for-knock agreement may apply, it is still

important to investigate and document all admiralty incidents and to contact your claims branch for guidance.

130 10 U.S.C. § 2734a (commonly referred to as the International Agreement Claims Act).

131 Id.

132 See figure 7-4, DA PAM 27-162 for a list of U.S. sending state and single-services offices.

133 Specific guidance on each services settlement authority and claims processing procedures is set forth at: 10 U.S.C. § 7622 and 32 C.F.R. § 752.1-

752-5 (Navy); 14 U.S.C. § 646 and 33 C.F.R. Part 25 (Coast Guard); 10 U.S.C. § 4802-4806 and 33 C.F.R. § 536.44-536.45 (Army); 10 U.S.C. § 9802

and 32 C.F.R. Part 842 (Air Force).

Chapter 9

Claims

148
Claims Cognizable Under UN or NATO Claims Procedures. In special circumstances, U.S. personnel may be

assigned to a UN or NATO headquarters unit and may cause damage or injury to a third party. In such cases, special UN

or NATO claims procedures may apply and the UN or NATO may actually pay the claim. If faced with such a situation,

judge advocate should contact their command claims service for guidance.

Solatia Payments.

134 If a unit deploys to the Far East or parts of Asia, judge advocates must consider the custom,

widespread in that area of the world, of making solatia payments to accident victims. Solatia payments are not claims

payment. They are payments in money or in kind to a victim or to a victims family as an expression of sympathy or

condolence. These payments are immediate, and generally nominal. The individual or unit involved in the damage has

no legal obligation to pay; compensation is simply offered as an expression of remorse in accordance with local custom.

Solatia payments are not paid from claims funds but, rather, from unit operation and maintenance budgets. Prompt

payment of solatium ensures the goodwill of local national populations, thus allowing the U.S. to maintain positive

relations with the host nation. Solatia payments should not be made without prior coordination with the highest levels of

command for the deployment area.135

Article 139 Claims.

136 Article 139, UCMJ, authorizes collection of damages directly from a service members pay for

willful damage to or wrongful taking of property by military personnel acting outside the scope of their employment.

During deployments, Article 139 claims are handled just as they are at the installation. The processing of these claims

overseas, however, presents unique logistical challenges. Special Court-Martial Convening Authorities (SPCMCA), who

function as appointing and final action authorities for Article 139 claims, may be geographically separated from the

investigating officer and the reviewing claims judge advocate. Every unit must prepare for these challenges and

contingencies during predeployment planning.

Real Estate Claims. A Corps of Engineer Real Property Team will settle the majority of claims arising from the use

of real estate. These claims are based upon contract principles and are paid from O&M funds, not claims expenditure

allowances. Coordination and regular communication between the judge advocate and the engineers after deployment is

essential. Judge advocates should also be aware that not all claims for damage/use of real estate are based on contract.

Some are based on tort law and may be considered as claims under the FCA or MCA.

During lengthy deployments, rapid turnover of real estate officers is common. In Operation Joint

Endeavor/Guard/Forge in Bosnia and Herzegovina, for instance, the Corps of Engineers rotated civilian real estate

officers into the area of operations on sixty-day tours. To define responsibilities between the Engineer Real Property

Team and the claims office concerning real estate in Bosnia and Herzegovina, the U.S. Army Europe (USAREUR) Staff

Judge Advocate and the USAREUR Director of Real Estate signed technical implementing guidance to the OPORD.

This guidance provides overall policies and procedures to be used in processing of claims for the use of real property for

which there is no lease during the operation.

137

Claims Involving Non-appropriated Fund Instrumentalities (NAFI). Frequently, FCCs will receive claims involving

NAFIs. Although FCCs may adjudicate such a claim, the FCC will not actually pay the claimant unless the damage was

caused by the U.S. Forces or a DoD appropriated fund employee. Therefore, the FCC should coordinate with the local

manager of the NAFI prior to investigating the claim. Some NAFI managers have independent authority to settle small

claims. For example, Army and Air Force Exchange store managers have authority to settle claims up to $2,500. If the

NAFI has the authority, it may settle the claim. If not, the FCC will investigate and adjudicate the claim as the FCC

would any other FCA claim. However, instead of making payment, the FCC will forward the adjudicated claim to NAFI

for payment.

Affirmative Claims. An affirmative claim is a claim asserted by the United States against a tortfeasor or a

tortfeasors insurance company. If claims personnel believe the possibility exists for an affirmative claim, and they can

identify a party that the claim can be asserted against, this should be reported to the responsible claims service. In

134 See, e.g., AR 27-20, paras. 10-10 and 13-13 and DA PAM 27-162, paras. 10-10 and 13-13.

135 Army judge advocates must also coordinate with U.S. Army Claims Service.

136 10 U.S.C. § 939. See generally ch. 9, AR 27-20 and ch. 9, DA PAM 27-162.

137 For an example of implementing guidance for real property claims, see Appendix D, Enclosure 4, infra.

Chapter 9

Claims

149
countries where the Department of the Army has single-service claims responsibility, the responsible claims service may

appoint a recovery judge advocate to assert and collect payment. Recovery judge advocates should keep in mind that

after assertion, they may not have the authority to terminate or settle the claim for less than the full amount. This

authority may rest with the responsible claims service or higher depending on the amount of the claim. In addition,

claims against foreign governmental entities have to be coordinated with USARCS and approved by TJAG.

PREDEPLOYMENT PLANNING

Many factors must be considered during predeployment planning. All personnel involved in the claims mission must

be properly trained. Principal players must be properly appointed. Further, international agreements with the host nation,

or other references that will impact on the claims operation must be located. These agreements, and the application of

local law to determine liability and damages under certain claims statutes, can give rise to unique ethical and conceptual

challenges. All of these aspects of the claims operation must be considered.

138

Training. The initial step in any successful claims operation is the establishment of education and prevention

programs. The first aspect of these programs is training. Claims judge advocates must ensure that all parties to the claims

operation are properly trained on not only legal requirements, but also required military skills for potential deployed

environments (e.g., weapons training, vehicle licensing, combat lifesaver training, etc.). This should be an ongoing part

of the daily mission, whether or not deployment is contemplated. Claims judge advocates, attorneys, and legal NCOs and

specialists must know the procedures for serving as Foreign Claims Commissions (FCC), Foreign Claims NCOICs, and

operating Special Claims Processing Offices. Claims personnel must also brief service members and unit claims officers

on how to avoid property damage or loss and personal injuries. These briefings should also address procedures for

documenting and reporting preexisting damage. Finally, claims personnel should ensure that unit claims officers (UCO)

and Maneuver Damage Claims Officers (MDCO) know and understand the proper procedures for investigating claims,

compiling evidence, and completing reports and forms. Claims avoidance, reporting, and investigation procedures must

be addressed long before the unit begins actual operations.

Appointment Orders. Principal players in deployment claims operations include UCOs, MDCOs, and FCCs.

Ordinarily, prior to any deployment, each company or battalion-sized unit appoints a UCO and, depending upon the

equipment and mission of the unit, a MDCO. These individuals document and investigate every incident that may result

in a claim either against or on behalf of the United States. UCOs and MDCOs coordinate their investigations with either

servicing judge advocates or FCCs. Recognition and documentation of possible claims, and initial contact with claimants

often rests with UCOs and MDCOs. They are, therefore, a very important asset to the claims operation. Units are

responsible for appointing UCOs and MDCOs, nevertheless, claims personnel should stand ready with formats and

regulatory guidance to assist them in this endeavor.

NONCOMBAT DEPLOYMENT OPERATIONS

The operation of deployment claims offices varies depending upon the type and location of operation. Flexibility,

therefore, is essential. An overseas location may present language barriers and logistical challenges, such as where to

locate claims offices and how to coordinate the investigation, adjudication, and payment phases of the claims process.

Nevertheless, some aspects of the operations, such as the need for a cooperative environment and consistent procedures

for payment and processing, remain constant.

Disaster Relief and CONUS Deployment Claims. Generally, when we think of deployments, we think of overseas

operations in preparation for combat, peace enforcement, or peacekeeping operations. However, these are not our only

deployment operations. Consider the tragic Gander air crash in 1985, the 1991 volcanic eruption of Mount Pinataubo in

the Philippines, and the militarys role in the aftermath of Hurricane Andrew. The military is called to react to these types

of disasters both within and outside of the continental United States. These operations place a great demand on claims

personnel.

139 Claims offices must have operational claims disaster plans to execute claims contingencies when called

138 See also Claims Deployment Checklist in the Checklist chapter of this Handbook.

139 In November 1998, U.S. Army Claims Service published a Disaster Claims Handbook designed to be a stand-alone guide for use in providing claims

services during a disaster. This handbook consolidates the provisions from AR 27-20, DA Pam. 27-162, and other publications that are relevant to

disaster claims. It also contains additional materials and forms necessary to provide disaster claims relief, including a model disaster claims plan and

Chapter 9

Claims

150
upon to compensate persons harmed by military activities that cause the disasters, as well as military disaster relief

activities that cause further harm. Additionally, the Army is DoDs executive agent for tort claims arising from chemical

disasters under the purview of the Chemical and Biological Defense Command, and has other significant responsibilities

for the resolution of tort, maneuver damage, and personnel claims arising from man-made natural disasters.

Logistical Support. Proper logistical planning and coordination is essential to effective deployment claims

operations. During most deployments, claims processing is a complex, full-time job requiring dedication of substantial

personnel and equipment assets. Claims investigators will have to travel frequently to visit areas where damages, losses,

and injuries are alleged to have occurred. Depending on the security and force protection orders in effect during a given

operation, claims personnel may have to deal with a variety of issues and planning factors that are not directly related to

the adjudication and payment of claims. For example, several rotations of claims personnel in Bosnia were subject to

force protection rules that prohibited them from leaving their base camps except in four-vehicle convoys with crewserved weapons. Convoy itineraries had to be submitted to and approved by the G2 several days in advance of the

proposed mission. Unfortunately, the SJA office did not have the vehicles or weapons (e.g., crew-served weapons)

necessary to comply with applicable force protection orders, so extensive coordination with supported units and other

staff sections was critical.

While claims forms, legal memoranda, and finance vouchers do not necessarily have to be typed, clerical duties still

comprise a significant portion of the claims mission. FCCs must receive adequate clerical support to perform effectively.

Equipment support is also essential. Whenever possible, claims judge advocates should have available a mobile legal

office, including a laptop computer with claims software and email capability.

Every units claims deployment plan must address three areas: the projected location of the claims office, claims

investigation, and payment of claims. The initial steps in an effective deployment claims operation are the establishment

of a central location for the receipt of claims and publication of this location to the local population. During the early

stages of a deployment, this may mean simply erecting a tent. As the operation progresses, however, it is wise to

establish a more substantial and permanent facility, if possible. The G-5 and Public Affairs Offices can publish the

location and hours of operation of the office. The local embassy and civil affairs personnel, if available, may also be

helpful in disseminating information on the claims operation.

Transportation assets will be limited in any deployment. Judge advocates and other claims investigators must,

however, be able to travel to claim sites. This requires the exclusive use of some type of vehicle(s). Claims personnel

should be licensed and trained on how to properly operate and maintain dedicated vehicles. If claims offices are unable to

procure sufficient vehicles to support their operations, they may also seek assistance in investigating claims from embassy

and civil affairs personnel, as well as unit claims officers. Local national insurance adjusters may serve as additional

sources of information and assistance in the investigation and adjudication of claims.

After claims personnel have adjudicated a claim, they must be able to pay the claim. Payment requires the presence

of a Class A agent and a sufficient amount of local currency. Dont assume that finance offices will supply you with

Class A agents. You may have to train unit or legal personnel to be certified to act in this capacity. Security is always a

concern. In Somalia, claimants often walked away from the claims office only to be robbed or shot to death within

minutes. Still another issue is the type of money used to fund the operation. The money used to pay for claims filed

under the FCA comes from the claims expenditure allowance. Not only must claims be paid from claims funds, they

must be charged to the proper fund cite, which is tied to the payment authority for the claim (MCA, PCA, FCA, etc.).

These issues must be resolved during predeployment planning through extensive coordination with unit comptroller

personnel and higher level claims offices with claims appropriations.

COMBAT CLAIMS

Effect of International Agreements. Provisions in international agreements between the U.S. and host nation

governments regarding claims processing and adjudication generally do not affect combat claims. Most bilateral Military

Assistance Agreements to which the U.S. is a party have no claims provisions. If there is a status of forces or other

suggested annexes. This handbook will be updated periodically and is available on the JAGC Net. See DISASTER CLAIMS HANDBOOK, U.S. Army

Claims Service, November 1998, on JAGCnet for more information on disaster claims operations.

Chapter 9

Claims

151
agreement that addresses claims issues, it may be suspended in time of armed conflict.140 The agreement may also

exclude claims arising from war damage. One option the judge advocate should investigate, however, is concluding an

agreement under which the host nation assumes responsibility for paying all claims that result from any combat activity.141

Noncombat Claims Arising on Conventional Combat Deployments. A basic principle embodied in U.S. claims

statutes is that damage resulting directly from combat activities142 is not compensable. For example, claims resulting

either from action by an enemy or directly or indirectly from an act of the armed forces of the United States in

combat are not payable under the Foreign Claims Act.143 Claims personnel must, however, distinguish between combat

related claims and noncombat claims that arise in a combat setting. Claims unrelated to combat activities will arise under

the Foreign Claims Act, the Military Claims Act,144 and the Personnel Claims Act,

145 which provide compensation to

service members for property losses due to enemy action. Solatia146 payments are not barred by the combat activities rule

and will commonly be based on injury or death resulting from combat activities. Claims under Article 139 of the

UCMJ

147 and real estate claims also arise in combat deployments. The judge advocate must be prepared to process all of

these claims, and a Class A agent must be present to pay claims in the local currency for FCA claims and in U.S. dollars

for PCA and MCA claims.

Combat Claims Arising on Conventional Combat Deployments. The combat-related claims exclusion often directly

interferes with the principal goal of low intensity conflict/foreign internal defense - obtaining and maintaining the support

of the local populace. Our recent combat deployments provide us with insight into how we can maintain the support of

the local population while observing the legal restrictions on combat-related damages.

Each of our substantial combat scenarios over the last 30 years have been unique. The three major deployments

before the Gulf WarVietnam, Grenada, and Panamaprovide an historical precedent of methodologies used to deal

with combat claims. In Vietnam, the South Vietnamese government agreed to pay all claims generated by military units

of the Republic of Vietnam, the United States, and the Free World forces.

148 After Operation Urgent Fury in Grenada in

1983, the U.S. Department of State initiated a program to pay for combat-related death, injury, and property damage as an

exception to the restrictions imposed by the combat activities exclusion.149 Following Operation Just Cause (OJC) in

Panama, the United States provided funds to the government of Panama to both stimulate the Panamanian economy and

to help Panama recover from the effects of OJC. These funds were used for emergency needs, economic recovery, and

development assistance. The U.S. also provided Panama credit guarantees, trade benefits, and other economic assistance

programs.

150

140 For example, NATO SOFA Art. XV, provides that in the event of hostilities, a party may suspend the SOFA by giving 60 days notice.

141 For example, South Vietnam had responsibility for processing and paying all combat claims generated by U.S. and "Free World forces."

142 Combat activities are defined as [a]ctivities resulting directly or indirectly from action by the enemy, or by the U.S. Armed Forces engaged in, or in

immediate preparation for, impending armed conflict. Glossary, sec. II, AR 27-20.

143 10 U.S.C. § 2734.

144 10 U.S.C. § 2733.

145 31 U.S.C. § 3721.

146 See notes 134  22 and accompanying text.

147 10 U.S.C. § 939.

148 Dept of the Army, Vietnam Studies, Law of War: Vietnam 1964-1073, Prugh, George S., Major General; Wash. D.C. 1975.

149 At the conclusion of combat in Grenada, it quickly became apparent that the U.S. could not refuse to pay for combat-related damage if it wanted to

maintain the support of the Grenadian citizens. With the claims statutes providing no means to make such payments, the Department of State entered a

Participating Agency Servicing Agreement between the U.S. Agency for Internal Development (USAID) and the U.S. Army Claims Service (USARCS)

that allowed for payment of combat claims. This agreement established a nonstatutory, gratuitous payment program outside of the combat activities

exclusion using USAID funds. USARCS provided personnel to staff FCCs to process requests, investigate, and recommend payment or denial of

claims.

150 This was done in Panama to support the Endara government and help to establish its legitimacy. Our mission was to support the legitimate

government, not to act in place of it. The U.S. and Panama agreed to a Letter of Instruction (LOI) that established the procedures to be followed, listed

categories of claims deemed not compensable, and set monetary limits for claims under the Foreign Claims Act that were not barred by the combat

claims exclusion. These commissions proceeded to adjudicate and recommend payment on the combat-related claims, essentially using the same

procedures already established for the payment of claims under the Foreign Claims Act and incorporating the special requirement of the LOI.

$1,800,000 of USAID money was made available: $200,000 to support the claims office and personnel and the remainder to pay claims.

Chapter 9

Claims

152
Requisitions under the Law of War. The impact of lawful requisitions of private property on the battlefield is an

often overlooked area of deployment claims. Under the law of war, a soldier may requisition any type of property

whenever there is a valid military necessity.151 Although public property may be seized as the need arises in combat, the

appropriation of private property for such purposes may result in allowable claims for damage or destruction of the

property. The combat exclusion may obviate many such claims, but the U.S. may still be liable for damage or destruction

of the property if it was bailed to the U.S. under either an express or implied agreement.152 To ensure proper

documentation of requisition claims, the servicing judge advocate must implement a procedure to document and describe

all requisitioned items. A system using bilingual property receipts distributed down to the UCOs might prove effective,

for example.

APPENDICES

A. Assignment of Single Service Responsibility

B. Unit Claims Officer Deployment Guide

C. Deployment Claims Office Operation Outline

D. Sample Deployment Claims SOP

151 A common example is the taking of private vehicles for tactical transportation. U.S. forces took vehicles in Operations Urgent Fury, Just Cause, and

Desert Storm. Other lawful examples would be the taking of food to feed service members who cannot be resupplied because of the tactical situation or

the billeting of service members in private dwellings if other suitable shelter is not available.

152 AR 27-20, para. 10-3c(2).

Chapter 9

Claims

153
APPENDIX A

Assignment of Single-Service Responsibility for Tort Claims

SERVICE COUNTRY AUTHORITY

ARMY Albania

Austria

Belarus

Belgium

Bosnia and Herzegovina

Bulgaria

Croatia

Czech Republic

El Salvador

Estonia

Federal Republic of Yugoslavia

Federal Republic of Germany

Former Yugoslavian Republic of Macedonia

[France]

Grenada

Haiti

Honduras

Hungary

Kuwait

Latvia

Lithuania

The Marshall Islands

Moldova

Montenegro

The Netherlands

Poland

Republic of Korea

Romania

Rwanda

Serbia

Slovak Republic

Slovenia

Switzerland

Ukraine

US-NATO / Singapore SOFAs

Receiving State in USA

Approved, John McNeil, 17 Apr 96

DoD Directive 5515.8, 9 Jun 90

Approved, John McNeil, 17 Apr 96

DoD Directive 5515.8, 9 Jun 90

Memo, David Koplow, 7 Jul 99

Approved, John McNeil, 17 Apr 96

Memo, David Koplow, 7 Jul 99

Approved, John McNeil, 17 Apr 96

DoD Directive 5515.8, 9 Jun 90

Approved, John McNeil, 17 Apr 96

Memo, David Koplow, 7 Jul 99

DoD Directive 5515.8, 9 Jun 90

Memo, David Koplow, 7 Jul 99

Reassigned to Air Force, 25 Nov 96

DoD Directive 5515.8, 9 Jun 90

Memo, John McNeil, 22 Sep 94

DoD Directive 5515.8, 9 Jun 90

Approved, John McNeil, 17 Apr 96

DA Pam 27-162, paragraph 1-11

Approved, John McNeil, 17 Apr 96

Approved, John McNeil, 17 Apr 96

DoD Directive 5515.8, 9 Jun 90

Approved, John McNeil, 17 Apr 96

Memo, David Koplow, 7 Jul 99

Memo, John McNeil, 1 Sep 94

Approved, John McNeil, 17 Apr 96

DoD Directive 5515.8, 9 Jun 90

Approved, John McNeil, 17 Apr 96

Memo, John McNeil, 1 Sep 94

Memo, David Koplow, 7 Jul 99

Approved, John McNeil, 17 Apr 96

Approved, John McNeil, 17 Apr 96

DoD Directive 5515.8, 9 Jun 90

Approved, John McNeil, 17 Apr 96

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

NAVY Bahrain

Greece

Iceland

Israel

Italy

Portugal

Spain

[Tunisia]

United Arab Emirates

Vietnam (war era)

DoD Directive 5515.8, 9 Jun 90

Memo, John McNeil, 1 Sep 94

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

Memo, John McNeil, 1 Sep 94

Reassigned to Air Force, 17 Apr 96

Approved, John McNeil, 17 Apr 96

DoD Directive 5515.8, 9 Jun 90

Chapter 9, Appendix A

Claims

154
AIR FORCE Australia

Azores

Canada

Cyprus

Denmark

Egypt

France

[Greece]

India

Iraq

Japan

Luxembourg

Morocco

Nepal

[the Netherlands]

Norway

Oman

Pakistan

Saudi Arabia

[Spain]

Tunisia

Turkey

United Kingdom

CENTCOM Operations*

USSOC*

*Applicable only in countries not otherwise

assigned to the Army or Navy

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

Memo, William Dalton, 25 Nov 96

Reassigned to Navy 1 Sep 94

DoD Directive 5515.8, 9 Jun 90

DA Pam 27-162, para. 1-11

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

Reassigned to Army 1 Sep 94

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

Reassigned to Navy 1 Sep 94

Approved, John McNeil, 17 Apr 96

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

DoD Directive 5515.8, 9 Jun 90

Changes from assignments made in DOD Directory 5515.8, 9 Jan 90, are noted by listing the original assignment, in

brackets and crossed out, with an appropriate notation in the Authority block. These countries are also listed under the

currently assigned service.

Chapter 9, Appendix A

Claims

155
APPENDIX B

UNIT CLAIMS OFFICER DEPLOYMENT GUIDE

I. PURPOSE. To provide information regarding the use of Unit Claims Officers (UCOs) to investigate and document

claims incidents on behalf of Foreign Claims Commissions (FCCs) during deployments.

II. INTRODUCTION. Any deployment of U.S. forces into a foreign country (a receiving state), may cause damage

to the personnel and property of either the U.S. or the receiving state and its inhabitants. Willful misconduct or negligent

acts and omissions on the part of U.S. or receiving state personnel can cause these damages. Ordinarily, prior to

deployment, each company- or battalion-sized unit appoints a UCO to investigate and document every incident that may

result in a claim either against or on behalf of the U.S.

III. INVESTIGATION REQUIREMENT.

A. Prompt and thorough investigations will be conducted on all potential and actual claims against or in favor of the

government. Information must be collected and recorded, whether favorable or adverse. The object of the investigation

is to gather, with the least possible delay, the best possible evidence without accumulating excessive evidence concerning

any particular fact.

B. Occasions upon which immediate investigations are required include when non-governmental property is lost or

damaged by a government employee, an actual claim is filed, a receiving state national is killed by the act or omission of

a government employee, or when a competent authority so directs.

IV. APPOINTMENT PROCEDURES. Commanders appoint commissioned officers, warrant officers,

noncommissioned officers or qualified civilian employees as UCOs as an additional duty. The appointment orders

(Enclosure 1) should instruct the UCO to coordinate with a designated Judge Advocate or attorney who services the

UCOs unit. UCOs must seek guidance from the servicing judge advocate at the beginning and before the conclusion of

the investigation whenever the claim is or may be for more than $2,500. Copies of UCO appointment orders should be

forwarded to the appropriate command claims service or servicing claims activity.

V. UCO RESPONSIBILITIES

A. Predeployment Prevention Program. UCOs should coordinate with the servicing judge advocate to advise unit

personnel of particular aspects of the pending deployment or the receiving state that could cause particular claims

problems. Depending upon the mission and the unit, UCOs should also coordinate with the designated Maneuver

Damage Control Officers (MDCOs) to ensure investigative efforts are not duplicated.

B. Conduct of Investigations. UCOs will conduct immediate investigations, the duration and scope of which will

depend upon the circumstances of the claims incident itself. UCOs will often be required to coordinate their

investigations with criminal or safety investigations, which have priority for access to incident sites and witnesses. The

reports of such investigations can be extremely useful to UCOs in the completion of their own investigations. In certain

cases, UCOs themselves may be doing the bulk of investigation, and are required to safeguard all evidence that may be

used in subsequent litigation. To this end, UCOs should interview all possible witnesses and reduce their statements to

writing; secure police reports, statements to insurance companies, hospital records, and even newspaper accounts. It is

not necessary that the statements are sworn; claims adjudications are administrative matters in which decisions are based

upon a preponderance of the evidence. UCOs must consult with the servicing judge advocate before disposing of any

evidence.

C. Claims Reports

1. Form of the Report. In claims incidents that have or may have a potential value in excess of $2,500, UCOs

complete DA Form 1208 and attach all available evidence for review by the responsible FCC or Affirmative Claims

Authority. Insignificant or simple claims with an actual or potential value of less than $2,500 may require only a cover

Chapter 9, Appendix B

Claims

156
memorandum explaining the attachments, if any, and the UCOs findings. The servicing judge advocate can provide

guidance as to which form is better. In certain cases, such as when a formal AR 15-6 investigation is conducted, the

claims report may be submitted on DA Form 1574 (Report of Proceedings).

2. Content of the Report. The factual circumstances surrounding the claims incident must be detailed in the

claim report, regardless of the format actually used. In vehicular accidents, for example, the questions found at Enclosure

2 can be used to develop a sufficient factual basis by even an unschooled investigator. UCOs should never make findings

or recommendations as to liability or the dollar value of personal injuries in the claims report. These determinations

should be left to the responsible judge advocate; and if the UCO feels that something must be said in this regard, the UCO

should document this on a separate document to accompany the claims report. Specific instructions on how to complete

the claims report (DA Form 1208) are at Enclosure 3.

ENCLOSURES

1. Unit Claims Officer Appointment Order

2. Investigators Interview Checklist for Vehicle Accidents

3. Instructions for Completing DA Form 1208 (Report of Claims Officer)

Chapter 9, Appendix B

Claims

157
Enclosure 1  Unit Claims Officer Appointment Order

DEPARTMENT OF THE ARMY

HEADQUARTERS AND HEADQUARTERS COMPANY

99TH ARMORED DIVISION

UNIT 10000, APO AE 09000

ABCD-EF-HHC 1 September 2000

MEMORANDUM FOR SEE DISTRIBUTION

SUBJECT: Duty Appointment

1. Effective 12 September 2000, 1LT Joe Jones, Unit Mailing Address, DSN phone number, DEROS is assigned the

following duty:

UNIT CLAIMS OFFICER

2. Authority: AR 27-20, para 2-2d(1)(a).

3. Purpose: As indicated in the applicable directives.

4. Period: 12 September 2000 until officially released or relieved from appointment of assignment.

5. Special Instructions: This memorandum supersedes all previous appointments to this assignment. Unit claims officer

will coordinate all claims investigation activities with MAJ Brown, OIC of the Bad Drecksfeld Legal Service Center.

FRED E. SMITH

CPT, AR

COMMANDING

Chapter 9, Appendix B

Claims

158
Enclosure 2  Investigators Interview Checklist for Vehicle Accidents

1. Personnel Information.

a. Full name.

b. Birth date.

c. Social security number.

d. Unit.

e. Home address.

f. Permanent home address.

g. Expiration term of service (ETS) date (ask about plans for reenlistment).

h. Date eligible for return from overseas (DEROS) (ask about extension).

i. Pending reassignment orders, reporting date at new installation. Get a copy of the orders and find out about the

soldiers plans.

2. Driving experience.

a. When did the driver start to drive?

b. When did the driver first obtain a drivers license?

c. Types of drivers licenses and dates (get copies).

d. Driver training courses, dates of instruction.

e. Types of vehicles operated in the past for pleasure or business; add specifics on experience and training.

f. If the driver has been awarded a wheeled vehicle military occupational specialty, find out specifics of training

and experience.

g. Accident record.

h. Enforcement record.

3. Vehicle involved in the accident.

a. How familiar was the operator with the vehicle (was it the operators assigned vehicle or the first time the

operator ever drove it)?

b. PMCS (Preventive maintenance, checks, and services).

(1) Was PMCS pulled?

(2) Who pulled it?

(3) Where is the PMCS checklist for that day?

(4) If necessary, have the driver show you how PMCS was performed.

(5) Find out who else assisted with, witnessed, or checked PMCS.

c. Was there any problem with the vehicle (especially if the PMCS checklist is not available or does not list a

defect)?

d. Did the vehicle develop a problem after the trip started? Was this a problem that had happened before? What

action was taken once the problem was recognized?

4. The trip.

a. What were the drivers normal assigned duties?

b. Was the trip part of these duties?

c. Had the driver driven the route before or was the driver unfamiliar with the route?

(1) How many times did the driver drive the route?

(2) If unfamiliar with the route, what directions did the driver get or what maps were provided?

d. Who authorized the trip?

e. Why was the trip authorized?

f. How long did the driver expect the trip to take?

g. Before the driver set out on the trip, how much sleep did he or she have the night before and what did the driver

do before starting? Was the driver tired or alert? This is the point to ask about alcohol and drugs (see questions

in paragraph 8).

h. Who else was in the vehicle (get full personal information)?

(1) Why were they in the vehicle?

(2) What did they do during the trip?

i. Have the driver take you through the trip from start point/time to destination and then to return. Ask the driver

to describe the trip as planned and then as it actually happened.

(1) Get a map and ask the driver to show you the route on the map.

Chapter 9, Appendix B

Claims

159
(2) If the route is not the most direct route, ask the driver to explain any deviation and to include any

reasons for the deviation.

(3) Indicate any interruptions or rest stops. Determine the reason for each stop, what happened during the stop,

and the duration of the stop.

5. The accident.

a. If possible, visit the accident scene with the driver.

b. If relevant (and possible), drive the route with the driver.

c. Have the driver describe the sequence of events up to, during and after the accident.

(1) When did the driver see the other vehicle?

(2) What was the drivers speed at the time of the accident?

(3) What evasive or other actions did the driver take?

(4) Did the other driver see our vehicle?

d. If the driver completed an accident report, ask the driver to review it and explain any omissions or errors.

6. Injuries.

a. Was our driver injured?

b. Names of other injured parties (compare with accident reports).

7. Witnesses.

a. Names of any witnesses known to the driver.

b. What did the witnesses supposedly see?

c. Any oral statements by witnesses the driver recalls?

8. Alcohol/Drugs.

a. Find out if the driver is a drinker.

b. If the driver does drink, when was alcohol last consumed before the accident?

(1) How much alcohol?

(2) Types of drinks?

(3) Was the alcohol taken with a meal?

c. Drug use? Get specific if you suspect it.

d. Was the driver taking medication?

(1) Name of drug.

(2) Get bottle if a prescription medication.

(3) Why was the driver taking medication?

(4) Did it affect his or her driving?

(5) Get specifics on amount taken, when, and whether the driver had used it before.

9. Diagrams.

Show the driver other accident diagrams if available and ask if they are accurate. If not, have the driver explain why.

10. Insurance.

a. Consider the following insurance sources:

(1) Automobile insurance

(a) Injured partys own (even if injured partys vehicle was not involved).

(b) Owner of automobile.

(c) Driver of automobile.

(2) Homeowners insurance.

(3) Property insurance.

b. Always ask for the following information about an insurer:

(1) Full name of company.

(2) Address/Telephone number of insurer.

(3) Name of adjuster/representative.

(4) Amount of claim, date filed, and date of payment.

Chapter 9, Appendix B

Claims

160
Enclosure 3  Instructions for Completing DA Form 1208 (Report of Claims Officer)

PROCEDURES

DA Form 1208 (Report of Claims Officer) does not have to be typed, but it must be legible. Information on the form

must be clear to claims personnel and receiving state authorities who may have to read and translate it. Unit claims

officers (UCOs) will complete DA Form 1208 as follows:

General Information.

Date of Report. Self-explanatory.

Headquarters. Enter designation and APO address of unit involved in the incident.

Location. Enter unit location.

1. Accident or Incident. Enter date, hour and place of incident in appropriate blocks.

2. Claimants. When available, enter claimants name and address. If not available, leave empty, but complete the rest

of the form. Claimants may file with receiving state authorities instead of UCOs or FCCs. In those instances, this report

will provide the relevant information about U.S. involvement.

3. Property and Personnel Involved.

Government Property. Identify U.S. vehicles involved with vehicle type, bumper markings, and license plate

number. Describe the condition of the military vehicle before and after the incident. If the foreign national is at fault

(partially or in full) this information will aid in an affirmative claim against that person for damaging U.S. property or

injuring U.S. personnel, or at least reduce U.S. liability. If available, attach photographs of damaged property.

Private Property. Provide all available information. Do not delay, however, trying to get information that is not

reasonably available or information that the servicing judge advocate can get from other sources. When possible,

interview claimants or foreign national involved. Provide a description of the property before and after the incident. If a

vehicle is involved, include the model, and license number. If available, attach photographs of damaged property.

U.S. Government Personnel. Enter name, rank or grade, position, social security number, current assignment,

DEROS ( if overseas), ETS date, and telephone number of U.S. personnel involved.

Civilian and Foreign Nationals. Enter names, nationalities, addresses and telephone numbers of non-U.S. Forces

persons involved.

4. Scope of Employment. Leave blank, the servicing judge advocate or FCC will determine this.

5. Damage to Property. Fully describe the damage to government and private property involved. Estimate repair

costs.

6. Persons Injured or Killed. List U.S. Forces and private persons injured or killed. If personnel were hospitalized,

indicate where, how long, and transfers to other facilities. Do not delay the investigation if this information is not readily

available.

7. Witnesses. List names, addresses, and telephone numbers of witnesses not included in block 3.

8. Police Investigation and Trial. Try to obtain local police reports. If authorities are reluctant to release the

information, do not delay the investigation.

9. Findings. Fully describe the incident. Reference to police reports and witness statements (e.g. See attached

statements) is not enough. The UCO must make independent findings of fact taking into account personal observation

and all evidence obtained.

Chapter 9, Appendix B

Claims

161
10. Exhibits. List all exhibits and attach them to the report.

11. Recommendations.

It is Recommended That. Leave this block blank.

Reasons for Recommendations. Leave this block blank.

UCOs will send their recommendations on a separate sheet of paper. This is because local (receiving state) law often

determines payment of claims. Claimants who are not satisfied with their settlements may go to court. The DA Form

1208 may be made available to the claimant and to the local court for use in the proceedings. Because UCOs are not

expected to know local laws, their recommendations about whether or how much to pay on a claim may be erroneous. If

they are included on the DA Form 1208, they may prejudice the United States position in court.

Claims Officer. The UCO will include his or her name, and sign and date the forms in the appropriate blocks.

12. Action of Commanding Officer or Staff Judge Advocate. Leave this block blank.

Forward the completed form along with all exhibits and attachments and your recommendations to the servicing claims

office or FCC.

Chapter 9, Appendix B

Claims

162
APPENDIX C

DEPLOYMENT CLAIMS OFFICE OPERATION OUTLINE

I. PURPOSE. TO OUTLINE THE PLANNING FACTORS NECESSARY TO CONSIDER DURING THE

PREDEPLOYMENT, DEPLOYMENT/STATIONING PHASES OF A DEPLOYMENT OF U.S. FORCES

INTO A FOREIGN COUNTRY (A RECEIVING STATE) IN ORDER TO OPERATE AN EFFECTIVE

FOREIGN CLAIMS ACTIVITY.

II. OVERVIEW. THE AR 27-20 SCHEME. AR 27-20, LEGAL SERVICESCLAIMS (31 DEC 1997),

ENVISIONS THE FOLLOWING GENERAL SCHEME FOR DEPLOYMENT CLAIMS OPERATIONS:

A. Unit Claims Officers (UCOs) and Maneuver Damage Control Officers (MDCOs) are appointed by unit

commanders and trained by unit or claims judge advocates or Foreign Claims Commissioners;

B. During the course of deployments, UCOs and MDCOs investigate claims incidents and forward potential claims

files, both against and on the behalf of the U.S., to servicing judge advocates. DA Forms 1208 (Report of

Claims Officer) are completed and forwarded as well when appropriate.

C. Unit judge advocates forward potential claims files and completed DA Forms 1208 to the appropriate Foreign

Claims Commission (FCC) for further processing and entry into the potential claims journal.

D. Potential claims files are transferred to the active claims files system and given a claims file number when a

claimant actually files a claim.

E. FCCs investigate actual claims as necessary, and adjudicate them. Claimants are notified of the commissions

decisions, and approved claims are processed for payment.

F. Special Claims Processing Offices (SCPOs) handle the claims of members of the force or civilian component for

damages to personal property.

III. PREDEPLOYMENT PLANNING AND TRAINING

A. Ensure that all units have UCOs, and MDCOs if necessary, appointed on orders.

B. Coordinate the training of UCOs and MDCOs in proper investigative techniques and completing accident report

forms with MP personnel.

C. Coordinate the training of UCOs in compiling potential claims files and completing DA Forms 1208 with unit or

claims judge advocates.

D. Train an NCO to serve as a Foreign Claims NCOIC. Foreign Claims NCOICs maintain the potential claims files

and journal, the actual claims files and journals, and fiscal accountability. Foreign Claims NCOICs also

coordinate the activities of the UCOs and MDCOs.

E. Determine force protection requirements in area of operations. Claims personnel should be licensed to drive

available military vehicles, to use required weapons (including crew-served weapons), and to be combat

lifesavers whenever possible.

F. To service a division-sized unit, train three judge advocates to serve as Foreign Claims Commissioners. Each

can serve as a one-member Foreign Claims Commission to handle claims up to $15,000 for their respective

Chapter 9, Appendix C

Claims

163
brigades. Together, the three can serve as a three-member commission, which can handle claims up to $50,000

for the division, if necessary.

G. Secure a supply of the forms listed on the Claims Deployment Checklist in chapter 32 of this Handbook for

possible use by a FCC.

H. Train one judge advocate and one NCO to staff an SCPO.

IV. DEPLOYMENT PLANNING

A. U.S. Army Claims Service (USARCS). Immediately upon being informed of a possible deployment, contact the

Chief, Foreign Torts Branch, USARCS, Ft. Meade, MD, for current claims information and technical guidance.

USARCS has the authority to constitute FCCs, appoint Foreign Claims Commissioners, and issue fund cites to

foreign claims. This authority may be delegated to a command claims service or to a Staff Judge Advocate as

necessary.

B. Planning Factors. The exact structure and operation of a deployment claims activity depends upon several

factors:

1. Type and duration of deployment. Is the operation an evacuation of noncombatants from a hostile area, or

will the unit be deployed to the area for a significant period of time?

2. Area to which U.S. forces will be deployed. Logistically, how close is the area to installations where U.S.

forces maintain a permanent or significant presence? How isolated will the unit be?

3. Existence of stationing agreements or MOUs governing the presence of U.S. forces. Stationing agreements,

like the NATO Status of Forces Agreement, may preempt the ordinary application of U.S. foreign claims

statutes and regulations. What legal status will members of the force or civilian component have in the

area?

4. Single Service Responsibility (SSR). Department of Defense (DoD) Directive 5515.8 (1990) assigns SSR

for claims for certain countries to particular service components. The U.S. Army, for example, is assigned

Germany. Does another service component already have SSR for the area to which the unit will deploy?

5. Predominate Service Component. If SSR is not already assigned, which service will be the predominate

service component, if any, in the deployment? Under DoD Directive 5515.8, the appropriate unified or

specified commander may make an interim designation of SSR. In the absence of such designation, each

service component will have Individual Service Responsibility (ISR) for its own claims.

V. DEPLOYMENT/STATIONING PHASE. ONCE THE UNIT HAS BEGUN DEPLOYING INTO THE

RECEIVING STATE, THE FOLLOWING FACTORS NEED TO BE CONSIDERED IN CONDUCTING A

DEPLOYMENT CLAIMS ACTIVITY:

A. Coordination with receiving state authorities. It is very important to inform host nation authorities of the way in

which the deployment claims activity will work. They have an interest in seeing claims resulting from damages

to their citizens and property properly handled. If a NATO SOFA-style stationing agreement exists, for

example, this interest may have significant status as a matter of international law.

B. Coordination with Civil Military Affairs personnel. The CMA activities can provide invaluable help in liaison

with both local officials and the local population itself, as well as providing information about the local culture

and customs which may have an impact on the adjudication of claims.

C. Claims activity publicity. Whether by means of the mass media or even by soldiers handing out pamphlets to

local nationals, the local population must be given basic information about claims procedures. This will expedite

Chapter 9, Appendix C

Claims

164
the processing of claims in general and will help resolve meritorious claims before they become a public

relations problem. Coordination with PAO and the SJA must occur before claims information is publicized.

U.S. State Department officials may also wish to be consulted.

D. Claims intake procedures. The deployment claims activity must set up an intake procedure for foreign claims.

This may be something as simple as setting aside two days a week for the receipt of claims and dissemination of

claims status information to claimants. Particular forms may have to be devised to expedite and simplify the

intake process.

E. Translation capabilities. Translators should be secured as quickly as possible to help the deployment claims

activity. Translators help in the investigation of claims, the translation of intake forms and claimants

submissions, and the translation of correspondence.

F. Local legal advice. As interpreted by AR 27-20, local law most often determines liability and the measure of

damages under the Foreign Claims Act. A local attorney is often necessary to explain local law, particularly in

areas without a Western-style legal system.

G. Security. Physical security of the deployment claims activity includes such measures as not making the Foreign

Claims Commissioner a Class A agent, and ensuring that crowd control measures are in effect on intake days.

Security also includes fiscal security, that is, checking the adjudication of claims to ensure that local organized

crime elements are not trying to manipulate the claims system.

H. Coordination with Military Intelligence personnel. As was demonstrated in Grenada, claims offices can become

very fertile ground for intelligence gathering. Military Intelligence personnel can likewise provide important

information for claims investigations.

I. Coordination with UCOs and MDCOs. To make the claims activity run smoothly and efficiently, UCOs and

MDCOs should be conducting most of the investigation of claims at their level. Because they are just on

additional duty orders, and not legally trained, they must often be closely supervised to ensure that claims

investigations are done properly.

J. Coordination with Military Police personnel. As trained investigators, MPs can provide invaluable assistance to

UCOs both in the course of actual investigations and in the compiling of reports after claims incidents. The

Deployment Claims NCOIC should receive copies of the blotter on a daily basis and collect information related

to potential claims against the United States.

K. Coordination with Local Finance Offices. Ensure Class A agents are trained and available for claims missions.

Also ensure that local currency will be available to pay claims.

L. Coordination with Non-Governmental Organizations (NGOs) and Other Governmental Organizations (OGOs).

Depending upon the area into which the unit deploys, it could find various international and charitable

organizations already operating there. Likewise, other agencies of the U.S. government may also be operating in

the area. The operation of these NGOs and OGOs may have a direct impact on a deployment claims activity.

For example, many of these organizations might pay for claims (in cash or in kind) which the FCCs cannot under

the applicable statutes and regulations.

M. Coordination with USARCS or command claims services. Frequent coordination with USARCS or with the

responsible command claims service is necessary to ensure that funds are available to pay claims and to maintain

claims accountability. Both services also provide continuing technical oversight and logistical support.

Chapter 9, Appendix C

Claims

165
APPENDIX D

SAMPLE DEPLOYMENT CLAIMS SOP

I. INTRODUCTION. THIS SOP IS BASED UPON THAT USED BY USACSEUR TO HANDLE CLAIMS

UNDER ITS FOREIGN CLAIMS COMMISSIONS (FCCS). THE ACTUAL SOP USED IN A

DEPLOYMENT SITUATION BY AN FCC WILL VARY WITH THE MISSION AND THE

CIRCUMSTANCES OF THE DEPLOYMENT.

II. UCO/MDCO COORDINATION

A. Receive claims investigation packets from UCOs/MDCOs, including completed DA Forms 1208, Report of

Claims Officer; and Maneuver/Convoy Maneuver Damage Report Forms. DA Forms 1208 need not be typed,

but must be used for all but the simplest cases.

B. Register potential claims in potential claims log, both against or on behalf of the U.S. On a monthly basis,

forward information with regard to possible claims on behalf of the U.S. to USARCS or the responsible

command claims service.

C. Make a potential claims file with the investigation packets or whatever information is available.

D. Direct UCOs/MDCOs to make whatever further investigation is appropriate, or conduct further investigation

yourself. In particular, seek military police reports, local police reports, trial results or relevant counseling

statements, hospital logs, and even local newspaper accounts.

III. LOGGING IN CLAIMS

A. Make notation in potential claims log that claim actually received.

B. Pull potential file, and insert materials into new case file on the right hand side in reverse chronological order.

C. Staple new chronology sheet (Enclosure 1) onto left side of folder.

D. Fill in the claimants name, the amount claimed in local currency and converted to dollars using the exchange

rate on the day the claim was filed, the date of the incident, and the date the claim filed. The official exchange

rate, or peg rate, is available from the servicing finance office.

E. Annotate the claim in the actual claims log using the next available claims number. Use DA Form 1667, Claims

Journal. On the file folder the file number should be written on the left hand corner using the FY, the assigned

commission number, the type of claim (use T for in-scope tort, M for maneuver damage, or N for nonscope tort), and the next available claims number. For example, 96-E99-T001.

IV. NEW CLAIM PAPERWORK.

A. If the claimant is represented by an attorney, make sure a POA is in the file, under the chronology sheet.

B. Write up certificate as to whether the claim is in-scope or non-scope (Enclosure 2), if required by claims regime

under which you are operating. A certificate is required as to the type of claim in areas where the NATO SOFA

or a NATO SOFA analog applies.

Chapter 9, Appendix D

Claims

166
C. Ensure that either SF 95, Claim for Damage, Injury or Death or a bilingual form patterned after USACSEUR

Form 100 is properly filled out. A dual language form must note as a minimum the time, place and nature of the

incident; the nature and extent of the loss, and the amount of compensation claimed.

D. Determine whether claim is filed within the two-year statute of limitation.

E. If the tortfeasor will pay voluntarily, write P on the right front corner of the file.

F. If Art. 139, UCMJ, is to be used, write 139 on the right hand corner of the file.

G. Maintain 30-day suspense for correspondence with claimants. Annotate correspondence on chronology sheet.

V. ADJUDICATION REVIEW.

A. If claimed amount is over your authorized payment threshold, send completed file with any comments or

recommendations up to next higher claims authority.

B. If within your authority, determine the applicable claims laws and regulations, and whether you have Single

Service Responsibility (SSR) under DoD Directive 5515.8 or Individual Service Responsibility (ISR) for the

claim.

C. Review substantiation of causation and of damages. Consult USACSEUR policy guidelines, local law, and

USARCS or the responsible command claims service if there are further questions.

D. Prepare decision in either data sheet form (Enclosure 5) if the settlement is under $2,500, or as a sevenparagraph memorandum for denials and approvals over $2,500 (Enclosure 6).

E. For claims under $2,500, use DA Form 1668, Small Claims Certificate.

F. In cases involving non-scope misconduct by soldiers, send either the decision memo or the data sheet to the

soldiers commander with a request for the commander to counsel the soldiers accordingly. If the soldiers

choose to voluntarily pay, document the payment on DD Form 1131, Cash Collection Voucher and send the

voucher and payment to finance using DA Form 200, Transmittal Record.

G. If tortfeasor will not pay voluntarily, advise commander of the possibility of Art. 139, UCMJ, procedures.

H. Prepare letter to claimant or representative in English with a courtesy copy in local or third language informing

the claimant of your decision. In cases where payment will be approved, have claimant sign the appropriate

release form, DA Form 1666, Claims Settlement Agreement. In cases where claims are to be denied, claimants

should be notified of such and given the opportunity to submit additional matters for consideration before a final

decision is made.

VI. PAYMENT.

A. Use SF 1034, Public Voucher, to pay the claimant. Attach DA Form 1666 (Claims Settlement Form), DA Form

1668 (Small Claims Certificate), and either the data sheet or seven-paragraph memo to the voucher, as

appropriate. Send all materials to finance under DA Form 200. Also include a copy of the POA if necessary.

B. Depending on the situation, coordinate with USARCS or a command claims service before payment to review

any questions and to obtain a fund cite and make sure that funds are available.

C. Coordinate with Finance to ensure that local currency is available to pay the claimant. The Foreign Claims

Commissioner should arrange for a Class A agent (generally, not the Commissioner) to disburse the cash.

Chapter 9, Appendix D

Claims

167
D. Forward a brief monthly claims report noting claims received, adjudicated and paid to USARCS or the

responsible command claims service. Also include amounts paid out, fund cites used, exchange rates and any

other relevant information. Send up all completed claims files for review and storage by USARCS or the

responsible command claims service.

VII.REPORTING CLAIMS AND CLAIMS LOG.

A. It is important that the settlement of claims be reported to the responsible claims service for a number of reasons,

the foremost of which, is to keep track of expenditures. No standard format or report form currently exists for

reporting deployment claims. Deploying claims personnel should look at claims reports filed by their

predecessors or contact the appropriate claims office for guidance. At a minimum, claims reports should be

submitted monthly and include the following information:

1. FCA Claims

a. Current month

(1) Amount paid

(2) Number filed/paid/denied/transferred

b. Total Claims Received (during operation)

c. Total Claims Pending Action

d. Total Claims Paid

e. Total Claims Denied

f. Total Claims Transferred

g. Total Amount Claimed in Local Currency and U.S. Dollars

h. Total Amount Paid in Local Currency and U.S. Dollars

2. NATO/PFP SOFA Claims

a. Total Claims Received

b. Total Pending Action

c. Total Scoped

d. Total Claims Denied

e. Total Claims Transferred

f. Total Amount Claimed in Local Currency and U.S. Dollars

g. Total Amount Paid in Local Currency and U.S. Dollars

h. Total Ex Gratia claims, amount paid, and amount claimed

Chapter 9, Appendix D

Claims

168
B. It is also important that claims be logged. This became extremely important during Operation Joint

Endeavor/Guard/Forge because of the amount of claims activity and duration of the operation. When there are a

large number of claims being adjudicated by a number of different FCCs and the FCCs subsequently change,

there is high probability of losing track of claims without a standardized logging system. The responsible claims

service will determine the format for logging claims, see Enclosure 8 for an example log using Microsoft Excel

during Operation Joint Endeavor/Guard/Forge. This format is available in electronic form at USARCS.

ENCLOSURES

1. Claims Chronology Sheet

2. Sample Scope Certificate

3. Request for Ex Gratia Award

4. Example Implementing Guidance for Real Property Claims

5. Foreign Claims Commission Data Sheet

6. Foreign Claims Commission Memorandum of Opinion

7. Partial Claims Settlement Agreement

8. Foreign Claims Commission Claims Log

Chapter 9, Appendix D

Claims

169
Enclosure 1 - Claims Chronology Sheet

CLAIMS CHRONOLOGY SHEET

CLAIMANTS NAME: _______________________________________ FILE # ________________

AMOUNT CLAIMED: $__________________ AT:_______________________________________

DATE OF INCIDENT: _________________________________________________________________________

DATE CLAIM FILED: _________________________________________________________________________

DATE

RECEIVED

SUSPENSE

DATE

Chapter 9, Appendix D

Claims

170
Enclosure 2  Scope Certificate

DEPARTMENT OF THE ARMY

U.S. ARMY CLAIMS SERVICE, EUROPE

Unit 30010, APO AE 09166-5346

AEAJ-CD-FC 15 November 2000

MEMORANDUM FOR BAD DRECKSFELD DCO

SUBJECT: Scope Certificate

_____ The act(s) or omission(s) of the member(s) or employee(s) of the U.S. forces or its civilian component was

(were) done in the performance of official duty.

_____ Use of the vehicle of the U.S. forces was unauthorized.

_____ A Foreign Claims Commission will adjudicate this non-scope type of claim on receipt of your report.

_____ U.S. forces were not involved in this incident.

FOR THE CHIEF:

JOE D. SNUFFY

CPT, JA

Foreign Claims Commissioner

Chapter 9, Appendix D

Claims

171
Enclosure 3  Request for Ex Gratia Award

UNITED STATES ARMY

REQUEST FOR EX GRATIA AWARD

THIS FORM MUST BE FULLY COMPLETED AND SUBMITTED IN TRIPLICATE

APPLICANT Name and address:

(Name in full)

(Street ) (City) (Zip code)

REQUESTED AMOUNT Property damage: $ Personal injury: $

Total amount claimed: $

INCIDENT Date: Hour:

Place:

Give a detailed description of the incident. Identify all persons and property

involved. Attach all supporting evidence.

PROPERTY DAMAGE

State name and address of owner, if other than claimant. Describe and substantiate the age and condition of the damaged

property. Describe necessary repair and substantiate all costs.

Are you entitled to recover Value-Added Tax ? Yes ( )No( )

List all insurance applicable to damaged property.

Name of Insurer Policy number:

Chapter 9, Appendix D

Claims

172
Dates of coverage: Deductible amount: $

Auto comprehensive:

PERSONAL INJURY -

State name and address of injured persons. Describe and substantiate nature and extent of injury and required

medical treatment.

Specify any other source of recovery, e.g. health insurance, social insurance, workmen's compensation fund,

employer, Victim Compensation Act. State nature and amount of compensation.

WITNESSES

State names and addresses of known witnesses.

CERTIFICATION

I understand that the United States Government is not liable for the aforementioned damages and that any ex gratia

award which may be offered is done so as a voluntary gesture of goodwill. I certify that my statements above are

complete and correct to the best of my knowledge and belief and that each requested item is entirely and exclusively

related to the aforementioned incident. Finally, I certify that I have not received nor am I eligible to receive any

compensation or payment for those damages from any third party. I understand that any nondisclosure or fraudulent

statement on my part may result in denial of my request or in reduction of any award. If an award is offered and if I

accept that award, I agree that such acceptance will be in full satisfaction and final settlement of all my claims arising

from that incident and that I shall have no further claim against the tortfeasor or any third party.

Place Date Signature of Applicant

Chapter 9, Appendix D

Claims

173
Enclosure 4 - Example Implementing Guidance for Real Property Claims

This guidance is based upon that used by during Operation Joint Guard/Forge to handle real property claims. The actual

guidance issued in a deployment situation will vary with the mission and the circumstances of the deployment.

Technical Guidance  In Support of Operation __________:

Processing of Claims (Demands for Payment) for Rent (the Use of Real Property) for Which There is No Lease

I. REFERENCES:

A. OPORD

B. Any Previous Technical Implementing Guidance for Termination and Restoration Settlements for Properties

Leased in Support of the Operation

C. Army Regulation 27-20

II. GENERAL:

In general, claims are requests for compensation, normally written demands for payment, made against the United

States. All claims against U.S. Forces must be received and accepted for processing by the servicing Claims Office of the

servicing Staff Judge Advocate Office. The Claims Office will review each claim to determine if it includes a demand for

rent.

Claims offices will handle claims that do not include a demand for rent of the property through the normal claims

process. When the claims office receives a claim for rent (use of real property for more than 30 consecutive days) or both

rent and damages to that property, the Claims Office will verify: 1) that the claimant owns the property; 2) that the U.S.

Forces currently or previously occupied the property; and 3) the duration of the period during which the property was

occupied by U.S. Forces.

If the U.S. Forces currently occupy the property or previously occupied the property for more than 30 days, the

demand will be transferred to the Real Estate Contracting Officer to negotiate a lease to include a settlement in lieu of

restoration for any damages from occupancy. If the Real Estate Contracting Office is unable to negotiate a reasonable

lease or settlement in lieu of restoration, the claim will be transferred back to the claims office for settlement or denial

through the normal claims process.

III. DETAILED IMPLEMENTING GUIDANCE:

1. All real property claims must be received and accepted for processing by the servicing Claims Office or the

servicing Staff Judge Advocate office. The servicing Claims Office will log all claims and assign a claim number to each

claim.

2. The Claims Office will screen all claims to identify those that demand rent (use of real property) or both rent and

damages to the property. A demand for rent is defined as a monetary demand for the use of real property for a continuous

period of more than 30 days. A demand will not ordinarily be considered a claim for rent if it is for intermittent and/or

temporary use of the property (never used by U.S. Force for more than 30 continuous days). Claims for the use of land

for intermittent and or temporary use may be considered as torts.

3. When the Claims Office receives a demand of both rent and damages to that property, the Claims Office will

verify the claimants ownership of the property and that U.S. Forces currently occupy or occupied the property and for

what period. If either ownership or occupancy cannot be established, the claims office can properly deny the claim. The

claims office will notify the claimant of the denial.

4. If the claimant owns the property and U.S. Forces currently occupy the property:

Chapter 9, Appendix D

Claims

174
Enclosure 4 - Implementing Guidance for Real Property Claims

(1) The claim will be transferred to the local Real Estate Contracting Officer, and the Claims Office will

annotate in the log that the demand was transferred to Real Estate. At this point, the claim is no longer treated as a claim,

but as a request for a lease.

(2) The Real Estate Contracting Officer will verify that there is no conflicting claim of ownership or contract

covering the property, and will thereafter negotiate a lease covering the entire period of anticipated occupancy. The lease

may provide for a one time payment for any period of past occupancy and periodic or one time payment for the remainder

of the anticipated use. The Real Estate Contracting Officer will attempt to include in any negotiated lease a waiver of any

future claim for restoration.

5. If the U.S Forces do not currently occupy the property, then the Claims Office will verify:

(1) That the U.S. Forces actually occupied this real property and for what period; and

(2) That the claimant is the owner of the property.

(3) If both are established, the demand will be transferred to the local Real Estate Contracting Office who will

attempt to negotiate a lease covering the period of occupancy. The Claims Office will annotate in the log that the claim

was transferred to the Real Estate Office.

(4) Real Estate Contracting Officers will use their best efforts to negotiate a lease providing for a one time

payment covering both the fair market rent for the period of actual occupancy and a settlement in lieu of any restoration

for damages asserted and caused by the U.S. Forces. Real Estate Contracting Officers will notify the Claims Office when

a lease is successfully negotiated so that the claim log can be annotated.

6. If the Real Estate Contracting Officer is unable to negotiate a reasonable lease/settlement for property currently

or previously occupied, the claim will be transferred back to the Claims Office for settlement or denial through the normal

claims process. The normal claims procedure should only be used as a last resort to settle or pay claims for rent or both

rent and damage to property that cannot be resolved reasonably by the Real Estate Contracting Officer.

7. If the Claims Office settles a real property claim while a lease is pending, it will forward a copy of all

investigative information and settlement documents to the appropriate Real Estate office to ensure the claimant is not

compensated twice for the same damage at the conclusion of the lease.

Chapter 9, Appendix D

Claims

175
Enclosure 4 - Example Implementing Guidance for Real Property Claims

Chapter 9, Appendix D

Claims

176
Enclosure 5  FCC Data Sheet

FOREIGN CLAIMS COMMISSION DATA SHEET

1. FCC #: ___________ 2. FCC#: ______________ 3. DATE REQUEST FILED: ____________

4. NAME AND ADDRESS OF CLAIMANT:

__________________________________________________________________________________________

__________________________________________________________________________________________

5. NAME AND ADDRESS OF REPRESENTATIVE:

___________________________________________________________________________________________

__________________________________________________________________________________________

6. DATE AND PLACE OF

INCIDENT:_____________________________________________________________________________________

7. AMOUNT REQUESTED: _________________ 8. EQUIVALENT IN U.S. CURRENCY:___________________

9. FACTS: _____________________________________________________________________________________

________________________________________________________________________________________________

________________________________________________________________________________________________

________________________________________________________________________________________________

10. LIABILITY: The request is/is not cognizable and considered meritorious.

11. VOLUNTARY RESTITUTION: A request for voluntary restitution has/has not been sent out.

12. QUANTUM: Amount requested: ___________________ Amount approved: _________________________

_____________________________________________________________________________________________

13. ACTION: __________________________________________________________________________________

14. ADJUDICATORS SIGNATURE/DATE: _______________________________________________________

15. AMOUNT ALLOWED: _______________

16. EQUIVALENT IN U.S. CURRENCY: _____________

17. COMMISSIONERS SIGNATURE/DATE: ____________________________________________________

Chapter 9, Appendix D

Claims

177
Enclosure 6 - FCC Memorandum of Opinion

U.S. FOREIGN CLAIMS COMMISSION MEMORANDUM OF OPINION

1. Identifying Data.

a. Claimant:

b. Attorney:

c. Date and place of incident:

d. Amount of claim / date request filed / date request received from DCO:

e. Brief description of claim:

f. Co-cases:

2. Jurisdiction. This request is presented for consideration under the provisions of the Foreign Claims Act, 10 U.S.C. §

2734, as implemented by Chapter 10, AR 27-20. This claim was filed in a timely manner.

3. Facts. There is/is no record that any disciplinary action was taken against the soldier. A request for voluntary

restitution has not yet been sent out.

4. Legal Analysis.

The claim is/is not cognizable and meritorious.

5. Damages.

a. Repair costs.

Amount requested: ______ Amount approved: ______

b. Consequential expenses.

Amount requested: ______ Amount approved: ______

These costs cannot be favorably considered since they are considered to have arisen in connection with filing the

request.

6. Proposed Settlement or Action.

7. Recommendation.

The request should be compensated in the amount of ___________.

Chapter 9, Appendix D

Claims

178
Enclosure 6  FCC Memorandum of Opinion

8. Document and Witness List.

JOSEPH J. JONES

CPT, JA

Foreign Claims Commissioner

Chapter 9, Appendix D

Claims

179
Enclosure 7 - Partial Claims Settlement Agreement

PARTIAL CLAIMS SETTLEMENT AGREEMENT

FILE NUMBER: _______________________ DATE: _______________________

DATE OF INCIDENT: ___________________ PLACE OF INCIDENT:_______________

_______________________________________________________________________________________

Brief description of claim/incident:

_______________________________________________________________________________________

_______________________________________________________________________________________

_______________________________________________________________________________________

_______________________________________________________________________________________

_______________________________________________________________________________________

I (we), the claimant(s) and beneficiaries, hereby agree to accept the sum of ___________ as a partial settlement for my

claim against the United States Government.

Printed Name of Claimant(s) Signature of Claimant(s)

_________________________ __________________________

_________________________ __________________________

Date: _________________ Address of Claimant(s)

___________________________

___________________________

TRANSLATOR: Since the claimant does not read English, I hereby certify that I read the document to the claimant

before he/she signed the settlement agreement.

____________________________

Translator

Chapter 9, Appendix D

Claims

180
Enclosure 8  FCC Claims Log

CLAIM # NAME AREA DATE

INCIDENT

DATE

FILED

AMT CLMD AMT

SETTLED

DATE

PAID

REMARKS STATUS

96-E9I-T002 Stocar Bosnjaci Dec-95-Jan-96 10-Jan-96 DM 159,383.00 DM 61,000.00 31-Oct-96 2/3 FA camped on land Transferred to MAJ Prescott

@ USACSE

96-E9I-T013 Mato Kovac Gradiste 1-Jan-96 2-Apr-96 Kn 20,799.00 Camp Harmon(see #35)96-E9I-T016 Pero Palijan Gradiste 1-Jan-96 10-Jan-96 Camp Harmon (see #39)96-E9I-T019 Duro Dakovic Slavonski Brod 13-Jan-96 13-Jan-96 DM 3,350.00 Kn1,000.00 11-Jul-97 Barge Cable & anchor Paid $160.8496-E9I-T035 Josip Filipovic Gradiste 1-Jan-96 2-Apr-96 Kn 20,799.00 Camp Harmon(see #13)96-E9I-T036 Martin Zivkovic Gradiste 1-Jan-96 23-Jan-96 Camp Harmon96-E9I-T039 Josip Colak Gradiste 1-Jan-96 10-Jan-96 Camp Harmon(see #16)96-E9I-T086 Izet Tursunovic Gunja 6-Mar-96 48 Savska Brought Fwd from 96 log96-E9I-T127 Bono Bozic 26-Dec-95 8-May-96 DM 1,360.00 Crds for 1stBde,1st AD CA Denied 23-Dec-9696-E9I-T136 Luka Lucic Gunja 6-Mar-96 Kn 2,000.00 6a Krleze-Property Damage Denied 10-Oct-9696-E9J-T140 Hrvatske Ceste Croatia 12/95-4/96 12-Jul-96 Kn 51,633,949.00 Road Damage 30-Oct-96 Transferred to MAJ Prescott

@USACSE

96-E9J-T141 Feliks Slavonski Brod 20-Dec-95 12-Jul-96 Kn 463,590.00 Kn 116,000.00 27-Apr-97 Contract Dispute-Gravel Paid Kn by MAJ

Prescott116,000.00

96-E9J-T142 Roza Korac Garesnica 12-Apr-96 12-Jul-96 Kn 2,406.00 Bridge Damage-Driveway Denied 10-Oct-9696-E9J-T145 Electra Slavonski Brod 9-Apr-96 13-Jul-96 Kn 7,604.00 Traffic light pole Denied 10-Oct-9696-E9J-T153 Zeljko Kapular Lipovljani 26-Jan-96 22-Jul-96 Kn 78,890.00 Kn 32,500.00 9-Dec-96 Vehicle Accident Paid $5,977.6796-E9J-T160 Hrvatske Ceste Croatia 3-Jan-96 31-Jul-96 Kn 6,525.60 DM 925.50 28-Nov-96 IFOR hit median rail Paid $638.2896-E9J-T165 Josip Kendel Terelino 29-Mar-96 28-Aug-96 DM 460.00 Kn 1,575.00 24-Oct-96 Vehicle Accident Paid $290.1196-E9J-T166 Nedeljko Marjanovic Sibinj 22-Jun-96 28-Aug-96 DM 2,550.00 KN 8,925.00 17-Oct-96 Vehicle Accident Paid $1,628.5596-E9J-T167 Ferimport Slavonski Brod Jul-Aug 96 1-Sep-96 DM 9,500.00 See T037 See T037 Maneuver Damage See TO3796-E9J-T168 Ivan Stefanic Zupanja 12-Jan-96 4-Sep-96 5 Ton hit VW Golf Withdrawn 24-Sep-9696-E9J-T169 Mirko Dominkovic Zupanja 4-Sep-96 4-Sep-96 Kn 2,070.00 17-Oct-96 HEMMT hit VW Golf Paid $377.7496-E9J-T170 Ferimport Slavonski Brod Jul-Aug 96 5-Sep-96 DM10,050.00 See T037 See T037 Maneuver Damage See TO3796-E9J-T171 Pero Blazevic Split 7-Jan-96 7-Sep-96 Kn 5,588.06 Vehicle Acc. IFOR &1989

Yugo

Denied 10-Oct-96

96-E9J-T172 Anda Miljic Srpski Brod May-Jun 96 10-Sep-96 DM 3,500.00 DM 300.00 16-Nov-96 Detonation damage & injury Paid $204.0896-E9J-T173 Vaso Mandalic Srpski Brod May-Jun 96 10-Sep-96 DM 3,500.00 DM 300.00 16-Nov-96 Detonation damage & injury Paid $204.0896-E9J-T176 Zvonko Vukojevic Slavonski Brod 12-Aug-96 11-Sep-96 DM 2,000.00 KN 1,750.00 17-Oct-96 Equip. fell fro.trk-damg

fence&clu

Paid $319.34

96-E9J-T177 Zoran Subota Zagreb 15-Jan-96 3-Sep-96 Kn3,419.13 KN 2,000.00 17-Oct-96 CUCV hit Audi Paid $364.9696-E9J-T178 Narcisa Cosic Dakovo 22-Aug-96 16-Sep-96 Kn 10,156.72 KN10,160.00 17-Oct-96 IFOR hit Ford Escort Paid $1,854.0197-E9J-T001 Adriana Curic Slavonski Brod 30-Jul-96 1-Oct-96 Kn2,840.00 Veh. Acc. Trk.trailer

w/Zastava

Denied 9-Oct-96

Chapter 9, Appendix D

Claims

181
Chapter 9, Appen

dix D

Claims

182
CHAPTER 10

CRIMINAL LAW

REFERENCES

1. Manual for Courts-Martial (2000).

2. Army Regulation 27-10, Military Justice, 20 August 1999.

3. Air Force Instruction 51-201, Administration of Military Justice, 3 October 1997.

4. Air Force Instruction 51-202, Nonjudicial Punishment, 1 October 1996.

5. JAGINST 5890.1, Manual of the Judge Advocate General (JAGMAN), 17 January 1991.

6. Army Regulation 15-6, Procedures for Investigating Officers and Boards of Officers, 30

September 1996.

7. Army Regulation 220-5, Designation, Classification, and Change in Status of Units, 3

September 1991.

Military justice supervisors and trial counsel must ensure efficient and expeditious processing of military justice actions

(courts, NJP and administrative separations) in the deployed setting. This obligation exists throughout the spectrum of

operations, to include training exercises, emergency relief operations, peacekeeping/making operations and war itself. At

the same time, however, judge advocates must maintain the same level of efficiency in rear detachment military justice

actions.

MILITARY JUSTICE DURING DEPLOYMENT PHASES

FM 27-100 lists four phases in military operations: premobilization, predeployment/mobilization, deployment, and

redeployment/demobilization. Different military justice concerns should be addressed at each stage of the operation.

PREMOBILIZATION CONSIDERATIONS

During premobilization, the actual deployment mission and location have not been identified. The primary focus is

planning and identifying possible issues. Military justice supervisors should designate personnel and equipment available

for deployments and ensure such personnel have been trained to the greatest extent possible.

PREDEPLOYMENT/MOBILIZATION CONSIDERATIONS

During predeployment/mobilization, a mission and deployment location have been identified. The military justice

supervisor and counsel must execute the military justice transition and conduct mission training to prepare for the

deployment. Transition tasks may include:

Preparation of key personnel for deployment. Successful management of military justice actions during a deployment

requires planning and training of key personnel. The size of the deployment will often dictate who deploys from a legal

office. Regardless of the deployment scale, supervisors must ensure potentially deployable judge advocates know how to

process military justice actions on their own, before deployment. Deployed settings present difficult supervisory

challenges, primarily caused by increased distances between judge advocates, communication and transportation

limitations, and imported counsels (judge advocates from legal assistance, administrative law or claims) that may be

inexperienced with military justice actions. Supervisors must therefore attempt to train potentially deployable judge

advocates before deployment in the following areas: AR 15-6 investigations, NJP procedures, court-martial procedures

and administrative separations. Coordination of support for trial defense and judiciary services also must be considered at

this time.

Identification/marshaling resources to conduct operations. Resources, to include electricity, phone lines and fax

capability are ordinarily limited in deployed settings. Judge advocates must ensure possession of the required regulations

Chapter 10

Criminal Law

183
and legal forms in electronic format (CD ROM) and hard copy. Computers may help to eliminate the need for some hard

copy resources. However, given their potential unreliability in the harsh environment of a deployment, judge advocates

must plan for the worst. Judge Advocates must also consider inclusion of the hardbound military justice reporters. CD

ROM research is subject to the computers limitations in a field environment. Past Army deployments have demonstrated

the need to deploy with a hardbound set of reporters for the prosecution of courts-martial in the field. Other essential

publications include the Manual for Courts-Martial, AR 27-10 and any relevant 27-10 supplements, AR 15-6, the enlisted

and officer ranks updates, a Military Rules of Evidence hornbook, a Basic Course Criminal Law Deskbook and the

Crimes and Defenses Deskbook. Many of these resources can be accessed on the JAG BBS, Criminal Law Files.

In addition, judge advocates must ensure the availability of other resources, to include:

Urinalysis Testing. Based upon mission requirements and command guidance, judge advocates should ensure units

have the ability to conduct urinalysis testing in theater. Inevitably, contraband finds its way to the deployed setting. At a

minimum, the commander should have the option to conduct a urinalysis. Coordination should be made with unit

ADCOs, the Installation Biochemical Testing Coordinator and the relevant stateside lab prior to deployment. Fort Meade

Drug Testing Lab: (301) 677-7085/ Tripler Drug Testing Lab: (808) 433-5176.

Dogs. Judge advocates must also consider the advisability of bringing canine support, to include drug and explosive

detection capable dogs. In addition to the drug support, dogs are able to assist in force protection efforts.

Confinement Facility. With the exception of the Vietnam War, Army forces have typically not maintained

confinement facilities in theater for U.S. personnel. Although jails run by U.S. or UN forces may exist for local nationals,

they are not intended, and generally should not be used, for holding U.S. forces personnel. When pretrial confinement is

necessary, the soldier is normally shipped to the rear (Mannheim, Germany or CONUS).

Designating/aligning the convening authority structure for the deployment theater and home station. There are different

options available in regards to designating and aligning convening authorities. The GCMCA may deploy and take his

GCM authority (his command flag) to the deployed setting. In such a case, military justice actions can either be forwarded

to the deployed commander for disposition or to a nearby CONUS GCMCA after prior coordination. He may elect not to

take his GCM authority with him and turn it over to the rear detachment. Finally, he may elect to retain GCM authority

for deploying units, and also to have GCM authority in the rear. If he elects to leave all or some GCM authority in the

rear detachment, coordination must be made. Although most CONUS installations have a residual GCM authority

already designated in the Installation Commander pursuant to Department of the Army General Order, when this authority

is not present, judge advocates should coordinate with The Office of The Judge Advocate General, Criminal Law for

Secretarial designation of a new GCMCA. Cases should be transferred to the new convening authorities when necessary.

See sample of transfer of jurisdiction at the end of this chapter.

Ensuring units are assigned/attached to the appropriate organization for administration of military justice. Initially, unit

commanders at all levels must determine which units, or portions of units, will deploy or remain in the rear. This

determination will dictate the need for orders attaching individual personnel, or units to other organizations. It will also

dictate the need to create provisional units to support the deployment. For example, a deploying company may be

attached to a previously unrelated deploying battalion. The unit commander must also determine the need to create a rear

detachment. Rear detachments often will have their own chain of command from Company to Division level. Nondeploying soldiers and units may be attached to previously unrelated units or provisional units153 during the period of

deployment.

153 Provisional units (p-units) are temporary units (not to exceed 2 years) composed of personnel detached from their unit of assignment and created

under authority of AR 220-5, 3 Sep. 91. Provisional units are often used to create a UCMJ structure or fill the gaps in UCMJ authority or convening

authority. They help to ensure that commanders at all levels are available to process UCMJ and administrative actions. Commanders decide whether or

not p-units will be organized, and if so, to what unit they will be attached. This should be done in consultation with the S1 and the judge advocate.

When a unit deploys, it normally leaves behind individuals or portions of the unit. Those elements can either be attached to another preexisting unit

remaining in the rear or a p-unit can be created at the commanders discretion. Provisional units can be created at any level, to include company,

battalion, and brigade. Deploying elements may also need to provisionalize depending upon whether a portion of the unit is deploying and/or whether

the commander of the original unit is deploying as the commander of that unit, that is, the commander takes his flag to the deployed setting.

The S1/PSC is normally the staff element responsible for executing the commanders intent by processing the documents that organize and

attach p-units. JAs must assist in this process to ensure a UCMJ command structure exists, and that this structure continues the sensible flow of

Chapter 10

Criminal Law

184
Ensuring individuals are assigned/attached to the appropriate organization for administration of military justice. All

soldiers, whether deploying or not, should be assigned or attached to a unit that can dispose of criminal and administrative

actions that may arise during the deployment period. The unit adjutant should initiate a request for orders to attach nondeploying soldiers to a unit remaining at the post, camp, or station. Commanders must identify non-deployable soldiers

within the unit. TCs should monitor the status of those soldiers within their jurisdiction who may be non-deployable for

legal reasons. Judicial action by military or civil authorities, while generally making a soldier non-deployable for

exercises, may not bar deployment for actual combat operations. The unit adjutant should initiate procedures to obtain

the release of soldiers in confinement whom the commander requests be made available for deployment. TCs should also

advise commanders of those soldiers who are not themselves the subject of legal action, but who are required to

participate in legal proceedings (such as witnesses or court or board members). The decision as to whether these soldiers

will deploy is the commanders, usually made after coordination with the TC.

Guidance for disposing of pending cases upon deployment. Judge advocates must consider whether to take pending

actions to the deployed setting or leave them in garrison. For courts-martial this will largely be a function of the

seriousness of the offense and whether the witnesses are primarily civilian or military. Serious criminal offenses or cases

with primarily civilian witnesses often remain in the rear. Similarly, soldiers pending administrative separation normally

should remain in garrison pending separation. NJP actions normally go forward with the deploying force.

Selection of court-martial panel, if necessary, in the deployment theater and rear detachment. Supervisory judge

advocates must plan for new panel selection for both the rear garrison and the deployed setting. Brigade judge advocates

should also consider establishing straight special court-martial panels in theater to provide an expeditious forum for

resolution of NJP refusals and other low-level misconduct. Judge advocates should also familiarize themselves with a

legally sound selection process and deploy with prepared panel selection advice.

Content of the general order for the operation. Based upon mission requirements and command guidance, military justice

supervisors and trial counsel must draft the general order for the operation and have it ready for publication as soon as

possible. See examples at this end of this chapter (General Orders for operations in Desert Shield, Haiti, and Allied

Force).

Publishing the general order for the operation. The general order must be published and disseminated to all soldiers prior

to deployment. The contents of the general order must be briefed as well (see below).

Conducting mission training/predeployment briefings. Judge advocates must be thoroughly familiar with the general

order for the operation and pay particular attention to provide extensive briefings prior to deployment. As with ROE

training, supervisory judge advocates must ensure refresher training on the general order upon arrival in theater, at regular

intervals throughout the deployment and during the redeployment phase.

DEPLOYMENT CONSIDERATIONS

During deployment, the military justice supervisor must ensure the following is accomplished:

Ensure orders assigning units and personnel clearly indicate which commanders have nonjudicial punishment and courtmartial authority. This is an ongoing process, as new soldiers (and possibly members from other services) will be

incoming to the command. This requires coordination with the appropriate G1/S1 personnel staff elements.

Conduct training in military justice for rear detachment commanders. A military justice supervisor in the rear detachment

should prepare for military justice challenges in the rear because of fewer resources available. Also the supervisor should

UCMJ actions. Provisional units must have a commander on orders. Such commanders must be commissioned officers (including commissioned

warrant officers). They have normal UCMJ authority. Check local military justice supplements to identify modifications or reservations of authority in

this regard.

Judge advocates must monitor the PSC publication of orders that organize and then attach p-units to other units. This process is typically

initiated by the commander submitting a request for orders to organize a p-unit, and then a second RFO to attach the unit to a parent unit. Often,

given the volume of units deployed and p-units organized and the delay in publication of orders, it is sometimes more efficient to publish a regulation or

General Order which sets out the jurisdictional scheme for both forward and rear area elements. This ensures all commanders and units, especially

newly attached units, are aware of their food chain.

Chapter 10

Criminal Law

185
expect that rear detachment commanders have little to no experience in military justice actions and will need training and

guidance, particularly in areas such as unlawful command influence. Rear detachment military justice supervisors must

plan for and prepare legal briefings for all new commanders in the rear detachment and additional training as necessary.

REDEPLOYMENT/DEMOBILIZATION CONSIDERATIONS

During redeployment/demobilization, the military justice supervisor must ensure the following is accomplished: 1) return

to the original convening authority structure is returned to; 2) units and personnel are assigned/attached back to

appropriate organizations for administration of military justice; 3) designations of home station convening authorities are

revoked; 4) individual cases are transferred to appropriate jurisdictions; and 5) the general order for the operation is

rescinded.

RELATED MILITARY JUSTICE ISSUES

Nonjudicial Punishment. NJP procedures remain largely unchanged in the deployed theater. Practical issues face judge

advocates and commanders.

Postponement of Punishment. Where deployed soldiers are already required to remain in small compounds, is restriction

a viable punishment? AR 27-10, para. 3-21 allows commanders to postpone imposition of punishment. This provision

contemplates such delay will not normally exceed 30 days. The intent is likely to ensure swift punishment consistent with

the purposes of Article 15, UCMJ. In cases where the commander desires a delay in excess of 30 days, judge advocates

should coordinate with their supervisory judge advocate. The regulation is silent as to the lawfulness or propriety of such

a course of action. In any event, judge advocates must ensure the soldier is notified of the commanders intent to delay

imposition. This should be reflected on the DA Form 2627.

Reciprocal Jurisdiction. Army commanders may impose NJP on personnel of other services assigned or attached to the

unit.154 Another option in a joint command is to designate a service representative to administer NJP to members of their

service.

COMBAT CRIMINAL LAW ISSUES

This section addresses criminal law problems associated with combat and, specifically, wartime-related offenses.

Time of War. The existence of a time of war is relevant to many criminal law matters: certain offenses can only occur

in time of war, other offenses are punishable by death only in time of war, time of war is an aggravating factor in still

other offenses, and court-martial jurisdiction will exist over civilians who are accompanying the force in the field.

Time of war, however, is defined in a variety of ways that depend upon the purpose of the specific article in which the

phrase appears, and on the circumstances surrounding the application of the article.

Time of War: A Definition. The MCM defines time of war as a period of war declared by Congress or the factual

determination by the President that the existence of hostilities warrants a finding that time of war exists. The definition

applies only to the following portions of the MCM: the aggravating circumstances that must be present to impose the

death penalty (R.C.M. 1004(c)(6)), the punitive articles (MCM, Part IV), and nonjudicial punishment (MCM, Part V). It

does not apply to statute of limitations and/or jurisdiction over civilians.

Time of War and the Punitive Articles.

Offenses that can only occur during time of war:

154 However, the commander must do so IAW the individuals parent service regulation (AFI 51-202, para 2, 2.2.1; Navy and Marine JAGMAN 0106d;

Coast Guard MJM, Art 1-A-3(c)). See AR 27-10, para 3-8c. JAs must note certain differences in procedures. For AF personnel, a joint commander

may only impose NJP on AF personnel if the offense arises from a joint origin or has joint forces implications. Other service procedures must also be

followed. For example, the AF provides 72 hours to consult with counsel. The Navy/Marine burden of proof is a preponderance of the evidence. Also,

appeals typically proceed through the servicemembers parent service. Coordination, therefore, must be made with the servicing judge advocate. This

list of procedural differences is not exhaustive. JAs should consider consultation with other service JAs to understand the impact of NJP on other

service personnel.

Chapter 10

Criminal Law

186
1. Improper use of a countersign (UCMJ art. 101) prohibits disclosing the parole or countersign to one not entitled

to receive it and giving a parole or countersign different from that authorized by the command.

2. Misconduct as a prisoner (UCMJ art. 105) makes it criminal to improve ones position as a prisoner (a) to the

detriment of other prisoners

155 and (b) contrary to law, custom or regulation. Art. 105 also makes criminal the

maltreatment of prisoners while the accused is in a position of authority.

3. Spying (UCMJ art. 106) imposes a mandatory death penalty upon those who lurk, act under false pretenses to

collect, or attempt to collect information for conveyance to the enemy.156

Offenses that can be punished by the death penalty only in time of war:

1. Desertion (UCMJ art. 85)

157 with intent to remain away permanently, shirk important service, or avoid hazardous

duty may be punished by death in time of war.

2. Assaulting or Willfully Disobeying a Superior Commissioned Officer (UCMJ art. 90).

3. Misbehavior of Sentinel or Lookout (UCMJ art. 113), such as being found drunk or asleep on their post, or

leaving it before proper relief, may be punished by death in time of war.

Time of War as an Aggravating Factor.

1. Homicide and rape are both capital offenses in time of war as well as at other times. RCM 1004 provides that it

is an aggravating factor sufficient to justify a death sentence that the rape or homicide was committed in time of war and

in territory in which the U.S. or an ally was then an occupying power or in which U.S. forces were then engaged in active

hostilities.

2. The maximum penalty that may be imposed by court-martial is increased in time of war for drug offenses,

malingering, and loitering/wrongfully sitting on post by sentinel/lookout.

3. The maximum period of confinement may be suspended in time of war for solicitation to desert, mutiny,

misbehavior before the enemy, or sedition.

Time of War and Nonjudicial Punishment. A commander in the grade of major/lieutenant commander or above may

reduce enlisted members above the pay grade E-4 two grades in time of war if the Service Secretary has determined that

circumstances require the removal of peacetime limits on the commanders reduction authority. See MCM, pt. V, para.

5b(2)(B)(iv).

Time of War for Jurisdiction, and Statutes of Limitation. Jurisdictional rules and statutes of limitation may both be

affected by a determination that a time of war exists. As stated previously, time of war is defined differently for

jurisdiction and statutes of limitations purposes than it is for aggravating factors for a capital case, the punitive articles,

and nonjudicial punishment.

1. Jurisdiction. UCMJ art. 2(a)(10) provides that in time of war, persons serving with or accompanying an armed

force in the field may be subject to trial by court-martial. In the case U.S. v. Averette, 41 C.M.R. 363 (1970), the Court

of Military Appeals held that for purposes of providing jurisdiction over persons accompanying the armed forces in the

field in time of war, the words in time of war mean a war formally declared by Congress.

155 For example, reporting plans of escape, secret food and arms caches, etc. An escape that causes injury to fellow prisoners does not fall within the

ambit of this offense.

156 UCMJ art. 106. Spying does not violate the law of war. "Spies are punished, not as violators of the law of war, but to render that method of

obtaining information as dangerous, difficult, and ineffective as possible." (FM 27-10, para. 77).

157 The last execution for desertion occurred during World War II. See Slovik, E. Theater of Operations CMCO No. 5555.

Chapter 10

Criminal Law

187
Statutes of Limitation. UCMJ art. 43 extends the statute of limitations for certain offenses committed in time of

war.

158

a. There are no statutes of limitation for the crimes of Desertion, Absence Without Leave, Aiding the Enemy,

Mutiny, Murder, or Rape in time of war, and persons accused of these crimes may be tried and punished anytime. (UCMJ

art. 43(a)).

b. The President or Service Secretary may certify particular offenses that should not go to trial during a time of

war if prosecution would be inimical to national security or detrimental to the war effort; statute of limitations may be

extended to six months after the end of hostilities. (UCMJ art. 43(c)).

c. The statute of limitations is also suspended for three years after the end of hostilities for offenses involving

fraud, real property, and contracts with the United States.159

In determining whether time of war exists for statute of limitations purposes, CMA held that the conflict in Vietnam,

though not formally declared a war by Congress, was a time of war.

160 Military courts have articulated factors it will

look to in making such an analysis, to include whether there are armed hostilities against an organized enemy

161 and

whether legislation, executive orders, or proclamations concerning the hostilities are indicative of a time of war.162

Military courts have also rejected the notion that there is a geographical component to the time of war in the sense that

absence from the combat zone at the time of an offense does not prevent the offense from occurring in time of war.

163

For example, in a case in which an accused absented himself without leave from Fort Lewis, Washington, during the

Korean conflict, CMA held that the Korean conflict was a war within the meaning of UCMJ, art. 43(a) and that the

accuseds geographical location at the time of the offense was irrelevant. In either instance, the Armed Forces are

deprived of a necessaryperhaps vitally necessarycombat replacement.

164

WARTIME OFFENSES

Certain violations of the UCMJ penalize conduct unique to a combat environment. As described above, several offenses

may occur only in time of war or have increased punishments in time of war. The following crimes need not occur in

time of war to be criminal, but they have elements that may occur only in a wartime situation.

Misbehavior Before the Enemy. Art. 99, UCMJ, is an amalgamation of nine different offenses and is meant to cover all

offenses of misbehavior before the enemy. UCMJ, article 134 is not a catch-all designed to apply to these types of

violations. Each of these crimes must be committed before, or in the presence of, the enemy.

Enemy Defined. Enemy includes forces of the enemy in time of war, or any hostile body that our forces may be

opposing, such as a rebellious mob or a band of renegades, and includes civilians as well as members of military

organizations.

165

Before the Enemy Defined. To be before, or in the presence of, the enemy, one must stand in close tactical, not

physical, proximity to the foe. CMA has defined the concept as follows:

158 CMA held that Vietnam was a time of war for statute of limitations purposes. U.S. v. Anderson, 38 C.M.R. 386 (1968).

159 UCMJ art. 43(f). The date hostilities end is proclaimed by the President or established by a joint resolution in Congress.

160 U.S. v. Anderson, 38 C.M.R. 386 (1968).

161 U.S. v. Shell, 23 C.M.R. 110 (1957).

162 U.S. v. Bancroft, 11 CMR 3 (1963).

163 U.S. v. Averette, 41 C.M.R. 363 (1970).

164 U.S. v. Ayers, 15 C.M.R., at 227 (1954).

165 U.S. v. Monday, 36 C.M.R. 711 (A.B.R. 1966), pet. denied, 37 C.M.R. 471 (C.M.A. 1969)

Chapter 10

Criminal Law

188
It may not be possible to carve out a general rule to fit all situations, but if an organization is in a

position ready to participate in either an offensive or defensive battle, and its weapons are capable of

delivering fire on the enemy within effective range of the enemy weapons, then that unit is before the

enemy.166

In applying this definition, courts have held that a member of a front line platoon, a member of a mortar unit supporting

friendly troops, and a soldier running away near friendly artillery units less than six miles from the front lines were all

before the enemy. The definition and the court interpretations make this element dependent upon the circumstances

surrounding the offense and leave the issue to the trier of fact.167

Before the Enemy Offenses.

a. An accused is guilty of running away if, without authority, he leaves his place of duty to avoid actual or

impending combat. He need not actually run, but must only make an unauthorized departure.

b. Shamefully abandoning, surrendering, or delivering up command punishes cowardly conduct of

commanders who, without justification, give up their commands. Only the utmost necessity or extremity can justify such

acts.

c. An accused endangers the safety of a command when, through disobedience, neglect, or intentional

misconduct, he puts the safety of the command in peril.

d. Soldiers may not cast away arms or ammunition before the enemy for any reason. It is immaterial whether

the accused acted to aid himself in running away, to relieve fatigue, or to show his disgust with the war effort.

e. Cowardly conduct consists of an act of cowardice, precipitated by fear, which occurs in the presence of the

enemy. The mere display of the natural feeling of apprehension before, or during, battle does not violate this article; the

gravamen of this crime is the accuseds refusal to perform his duties or abandonment of duties because of fear.

168

f. Quitting ones place of duty to plunder or pillage occurs when an accused leaves his place of duty with the

intent to unlawfully seize public or private property. It is enough that the accused quit his duty with the specified

purpose; he need not ever actually plunder or pillage to violate this subdivision of the article.

g. Causing false alarms includes the giving of false alarms or signals, as well as spreading false or disturbing

rumors or reports. It must be proven that a false alarm was issued by the accused and that he did so without reasonable

justification or excuse.

h. An accused willfully fails to do his utmost to encounter the enemy when he has a duty to do so and does not

do everything he can to encounter, engage, capture, or destroy certain enemy troops, combatants, vessels or aircraft. An

example of this offense might be a willful refusal to go on a combat patrol.

i. The failure to afford relief and assistance involves situations where friendly troops, vessels or aircraft are

engaged in battle and require relief or assistance. The accused must be in a position to provide this relief without

endangering his own mission and must fail to do so. The accuseds own specific tasks and mission limit the practicable

relief and assistance he can give in a particular battle situation.

War Trophies. Soldiers must give notice and turn over to the proper authorities, without delay, all captured or abandoned

enemy property. Individuals failing to adhere to this requirement can be punished for three separate acts.

1. Failing to give notice or turn over property.

169

166 U.S. v. Sperland, 5 C.M.R. 89, 91 (1952).

167 During Urgent Fury, a soldier who refused to board a plane at Pope Army Airfield (Ft. Bragg) was charged with misbehavior before the enemy. The

judge dismissed the charge (not "before the enemy"). The accused was convicted of missing movement by design.

168 See Smith, 7 C.M.R. 73 (A.B.R. 1953), and Barnett, 3 C.M.R. 248 (A.B.R. 1951).

Chapter 10

Criminal Law

189
2. Buying, selling, trading, or in any way disposing of, captured or abandoned property.

3. Engaging in looting or pillaging. Violation of 26 U.S.C. §§ 5844, 5861 (unlawful importation, transfer, and sale

of a dangerous firearm) may be charged as violations of clause three, UCMJ art. 134.

Private Property. As a general rule, private property may always be requisitioned or destroyed if military necessity so

requires. The goal during combat is to avoid unnecessary destruction of such property, as well as disciplinary problems,

by training soldiers in the law regarding private property. This training will aid the commander in accounting for

property and in paying for only proper claims.

1. Wrongful destruction of private property. UCMJ, art. 109 prohibits willful or reckless destruction or damage

to private property and carries a maximum punishment of a dishonorable discharge, total forfeitures, and confinement for

five years.

2. Wrongful taking of private property. UCMJ, art. 121. There are no provisions in this article that apply

specifically to wartime situations. The maximum punishment for violation of this provision is dishonorable discharge,

forfeiture of all pay and allowances, and confinement for five years.

A Detailed Analysis of Other Potential Wartime Offenses.

Mutiny or Sedition (UCMJ art. 94). Mutiny and sedition consist of four separate offenses, all of which require the

endangerment of established military or civilian authority. Neither mutiny nor sedition has to occur during time of war

to be punishable by death.

Mutiny requires an intent to usurp or override military authority and can be committed by either creating

violence or a disturbance or by refusing to obey orders or perform duties. While creating violence or a disturbance can be

accomplished either alone or with others, a refusal to obey orders or perform duties requires a concert of purpose among

two or more people to resist lawful military authority. The resistance may be nonviolent or unpremeditated and may

consist only of a persistent refusal to obey orders or to perform duties.

Sedition is a separate offense and requires a concert of action among two or more people to resist civil authority

through violence or disturbance. Failure to prevent, suppress, or report a mutiny or sedition also constitutes a crime.

Failure to prevent these acts requires that the mutiny or sedition took place in the accuseds presence and that

he failed to do his utmost to prevent and suppress the insurrection. If the accused fails to use the force, to include deadly

force, necessary to quell the disturbance under the circumstances, he has failed to do his utmost.

Failure to take all reasonable means to inform his superiors of an offense of mutiny or sedition, which he

had reason to believe was taking place, is the fourth offense under article 94. One must take the most expeditious means

available to report the crime. Whether he had reason to believe these acts were occurring is judged by the standard of the

response of a reasonable person in similar circumstances.

Subordinate Compelling Surrender (UCMJ art. 100). The death penalty can be given for the offense of compelling a

commander to surrender, an attempt to compel surrender, and for striking the colors or flag to any enemy without proper

authority. Compelling surrender involves the commission of an overt act by the accused that was intended to, and did,

compel the commander of a certain place, vessel, aircraft or other military organization to give it up to the enemy or to

abandon it. An attempt is comprised of the same elements, except the act must only apparently tend to bring about the

compulsion of surrender or abandonment, and the overt act must amount to more than mere preparation. These offenses

are similar to mutiny, except that no concert of purpose is required to be found guilty. Striking the colors or the flag

requires that the accused make, or be responsible for, some unauthorized offer of surrender to the enemy. The offer to

surrender can take any form and need not be communicated to the enemy. Sending a messenger to the enemy with an

offer of surrender is sufficient to constitute the offense; it is not necessary for the enemy to receive it.

169 See Morrison, 492 F.2d 1219 (1974). Captured or abandoned property (here, money) discovered during wartime becomes the property of the

government whose forces made the discovery.

Chapter 10

Criminal Law

190
Improper Use of Countersign (UCMJ art. 101). A countersign is a word or procedure used by sentries to identify

those who cross friendly lines; the parole is a word to check the countersign and is given only to those who check the

guards and the commanders of the guards. Two separate offenses fall within the ambit of article 101: disclosing the

parole or countersign to one not entitled to receive it and giving a parole or countersign different from that

authorized. Those authorized to receive the parole and countersign must be determined by the peculiar circumstances and

orders under which the accused was acting at a particular time. Revealing these procedures or words is done at ones

peril, despite the intent or motive at the time of disclosure. Negligence or inadvertence is no defense to the crime, nor is it

excusable that the accused did not know the person to whom the countersign or parole was given was not entitled to

receive it.

Forcing a Safeguard (UCMJ art. 102). A safeguard is a guard detail or written order established by a commander for

the protection of enemy and neutral persons, places, or property. The purpose of a safeguard is to pledge the honor of the

nation that the person or property will be respected by U.S. forces. A belligerent may not employ a safeguard to protect

its own forces. A safeguard may not be established by the posting of guards or off-limits signs unless a commander takes

those actions necessary to protect enemy or neutral persons or property. This offense is committed when one violates the

safeguard and he knew, or should have known, of its existence. Any trespass of the safeguard is a violation of this article.

Aiding the Enemy (UCMJ art. 104). Five separate acts are made punishable by this article: aiding the enemy,

attempting to aid the enemy, harboring or protecting the enemy, giving intelligence to the enemy, and communicating

with the enemy. Although this article does not prohibit aiding prisoners of war, it does prohibit assisting or attempting

to assist the enemy with arms, ammunition, supplies, money, or any other form of assistance. Harboring or protecting

the enemy requires that the accused, knowing the person being helped is the enemy, and without proper authority, shields

him from injury or other misfortune. The protection can take any form; physical assistance or deliberate deception will

both violate the article. One gives intelligence to the enemy by giving accurate, or impliedly accurate, information to the

enemy. This is an aggravated form of communicating with the enemy, because the offense implies that the information

passed has potential value to the opposition. The information need not be entirely accurate, nor must the passing of the

information be directly from the accused to the enemy; however, the accused must have actual knowledge of his acts.

The final offense under this article is communication with the enemy. Any form of unauthorized communication,

correspondence, or intercourse with the enemy is prohibited, whatever the accuseds intent. The content or form of the

communication is irrelevant, as long as the accused is actually aware that he is communicating with the enemy.

Completion of the offense does not depend on the enemys use of the information or a return communication from the

enemy to the accused; the offense is complete once the correspondence issueseither directly or indirectlyfrom the

accused. Prisoners of war and citizens of neutral powers residing in, or visiting invaded or occupied territory can violate

this article, as it applies to all persons, whether or not they are otherwise subject to military law.

Spying (UCMJ art. 106). This offense makes it a crime to act under false pretenses to collect, or attempt to collect,

information for the enemy in areas in which people are working to aid the U.S. war effort. The prosecution must prove

that the accused intended to convey information to the enemy, but need not prove that the accused actually received

information or conveyed it to the enemy. Anyone, military or civilian, may be tried for spying, unless they fall into the

following categories.

1. Members of an armed force or civilians who are not wearing a disguise and perform their missions openly

after penetrating friendly lines.

2. Spies, who after having returned to enemy lines, are later captured.

3. Persons living in occupied territory who report on friendly activities without lurking, and without acting

clandestinely or under false pretenses. Such individuals may be guilty of aiding the enemy, however.

Misbehavior of a Sentinel (UCMJ art. 113). A sentinel who is found drunk or asleep on his post, or who leaves his

post before being properly relieved, may suffer the death penalty if the offense is committed in time of war. One is drunk

when intoxicated sufficiently to impair the rational and full exercise of the mental or physical faculties. The definition

of asleep requires impairment of the sentinels mental and physical condition, sufficient enough that, although not

completely comatose, he is unable to fully exercise his faculties. The sentinels post is the area at which he is required to

perform his duties. Straying from this area slightly does not amount to an offense, unless the departure would prevent the

sentinel from fully executing his mission. A sentinel is posted when he is ordered to begin his duties. No formal order or

Chapter 10

Criminal Law

191
ceremony is needed; it is enough that routine or standard operating procedure requires the individual to be on post at a

particular time. The term applies equally in garrison, in the field, or in combat when listening posts, observation posts,

forward security, and other warning devices are used.

Malingering (UCMJ art. 115). Soldiers who feign illness, physical disablement, or mental impairment or who

intentionally injure themselves in order to avoid duty are guilty of malingering. The offense punishes those who intend

to avoid work. The severity and the method of infliction of the injury are immaterial to the issue of guilt.

Offenses by a Sentinel (UCMJ art. 134). Sentinels are held to a high standard of conduct, especially in wartime.

Thus, it is a criminal offense for a sentinel to loiter or wrongfully sit down on his post when that conduct is

prejudicial to good order and discipline or brings discredit to the armed forces. These are criminal acts in peacetime

and wartime; however, the maximum punishment is increased to a dishonorable discharge, forfeiture of all pay and

allowances, and confinement for two years in time of war.

Straggling (UCMJ art. 134). Straggling applies in peacetime and combat to soldiers who, while accompanying their

organization on a march, maneuver, or similar exercise wander away, stray, or become separated from their unit. The

specification must include the specific mission or maneuver.

170

APPENDICES

1. Sample Transfer of Jurisdiction

2. Sample Letter Transferring Court-Martial Convening Authority

3. Sample General Orders Number 1

170 During Operation Urgent Fury, a platoon radio-telephone operator straggled behind the unit and eventually became so scared that he was found

cowering in a ditch. He was charged with straggling (UCMJ art. 134) and endangering the safety of his platoon (UCMJ art. 99(3)).

Chapter 10

Criminal Law

192
APPENDIX A

SAMPLE TRANSFER OF JURISDICTION

(APPX ENTRY & LETTER)

APPX 7 (LEGAL AFFAIRS) TO ANNEX E (PERSONNEL AND ADMIN) TO 1

ST ID (MECH) REFORGER

PLANNING DIRECTIVE (REAR DETACHMENT OPERATIONS)

REFERENCES:

a. AR 27-10

b. FT Riley Supplement to AR 27-10

c. AR 27-20

d. AR 27-40

e. AR 27-50

f. AR 210-40

g. AR 735-11

h. Manual for Courts-Martial

1. SITUATION. Basic Planning Directive.

2. MISSION. To provide legal services and support to the 1

st ID(Mech) Rear (Prov) and FT Riley during REFORGER

86.

3. EXECUTION.

a. General. Basic Planning Directive.

b. Military Justice.

(1) Commander, 1

st ID (Mech), upon departure from FT Riley will:

(a) Transfer General Court Martial Convening Authority (GCMCA) for 1

st ID (Mech) Rear (Prov) to the

Deputy Post commander, FT Riley, Kansas, until his return from REFORGER 86.

(b) Transfer all cases he has referred to trial to the Deputy Post commander, FT Riley, Kansas, until his

return from REFORGER 86.

(2) Deputy Post commander, FT Riley, will:

(a) Assume command of FT Riley during the absence of the commander, 1

st ID (Mech) and FT Riley, for

REFORGER 86.

Chapter 10, Appendix A

Criminal Law

193
(b) Exercise GCMCA over all service members and units assigned or attached to the 1st ID (Mech) Rear

(Prov), FT Riley, and the U.S. Army Correctional Activity.

(3) Commanders of all deploying Major Subordinate Commands (MSC), 1

st ID (Mech), will:

(a) Organize provisional headquarters and chain of command for rear detachments, as appropriate.

(b) Provide G3, Force Development, unit organizational structure and chain of command for respective rear

detachment NLT 1 Nov 1985.

(c) Upon departure from FT Riley, transfer Special Court-Martial Convening Authority (SPCMCA) over

respective rear detachments to commander, 937th Eng. Group.

(d) Upon departure from FT Riley, transfer all cases they have referred to trial to the commander, 937th

Engineer Group, until their return from REFORGER 86.

(e) Insure service members facing charges that have been referred to trial are not deployed on REFORGER

86.

(4) The commander, 937

th Engineer Group, will exercise SPMCA over all MSC, 1st ID (Mech), rear

detachments during the absence of MSC commanders for REFORGER 86.

(5) G3, Force Development, will:

(a) Issue appropriate orders implementing the command structures of the 1

st ID (Mech) Rear (Prov), and FT

Riley.

(b) Issue appropriate orders attaching all provisional MSCs and rear detachment personnel to the 937

th

Engineer Group for special court-martial jurisdiction.

(6) SJA, 1

st ID (Mech) and FT Riley, will:

(a) Prepare letter transferring GCMCA to the Deputy post commander for the signature of the commander,

1

st ID (Mech) and FT Riley, prior to his departure for REFORGER 86.

(b) Prepare letter for MSC commanders signatures transferring SPCMCA to the commander, 937th

Engineer Group, prior to their departure for REFORGER 86.

(c) Assist G3 in establishment of rear detachment jurisdiction and publication of appropriate attachment

orders.

c. Legal Assistance, Administrative Law, Claims.

The SJA, 1st ID (Mech) and FT Riley, will maintain sufficient staffing to provide full legal support in all areas of

responsibility to the 1st ID (Mech) Rear (Prov) and FT Riley during REFORGER 86.

4. SERVICE SUPPORT. Basic Planning Directive.

5. COMMAND AND SIGNAL. Basic Planning Directive.

Chapter 10, Appendix A

Criminal Law

194
APPENDIX B

ORDER TRANSFERRING SPECIAL COURT-MARTIAL JURISDICTION

SUBJECT: Order Transferring Special Court-Martial Jurisdiction.

.

1. Effective 0001 hours, ______ Jan 1999, I hereby order the transfer, to the commander 937th Engineer Group, 1

st ID

(Mech), of special court-martial jurisdiction over all court-martial cases referred to trial by the command and all new

cases coming into existence on, and after, the date of this order.

2. The departure of the __________(Brigade/DIVARTY/DISCOM) for REFORGER 86 causes the transfer of special

court-martial convening authority.

3. The return of the _____(Brigade/DIVARTY/DISCOM) from REFORGER 86 will rescind this order.

Chapter 10, Appendix B

Criminal Law

195
APPENDIX C

DESERT SHIELD GENERAL ORDER NO. 1

OPER/DESERT SHIELD/MSGID/ORDER/USCINCCENT

SUBJECT: DESERT SHIELD GENERAL ORDER

ACTIVITIES FOR U.S. PERSONNEL SERVING IN CENTRAL COMMAND

1. This message transmits USCINCENT Desert Shield General Order No. 1. It is applicable to all U.S. military

personnel and to us persons serving with or accompanying the Armed Forces in the USCENTCOM AOR deployed or

acting in support of Operation Desert Shield. Commanders are directed to readdress this order to their units and ensure

widest dissemination to the lowest levels of command.

2. Statement of military purpose and necessity. Operation Desert Shield places U.S. Armed Forces into USCENTCOM

AOR countries where Islamic Law and Arabic customs prohibit or restrict certain activities that are generally permissible

in Western societies. Restrictions upon these activities are essential to preserving U.S. - host nation relations and the

combined operations of U.S. and friendly forces. Commanders and supervisors are expected to exercise discretion and

good judgment in enforcing this General Order.

3. THE FOLLOWING ACTIVITIES ARE PROHIBITED!

a. Taking of war trophies.

b. Purchase, possession, use or sale of privately owned firearms, ammunition, explosives, or the introduction of

these items into the USCENTCOM AOR.

c. Entrance into a mosque or other site of Islamic religious significance by non-Moslems unless directed to do so

by military authorities or by military necessity.

d. Introduction, possession, use, sale, transfer, manufacture or consumption of any alcoholic beverage.

e. Introduction, possession, transfer, sale, creation or display of any pornographic photograph, videotape, movie,

drawing, book or magazine or similar representations. For purposes of this order, pornographic means any medium that

displays human genitalia, uncovered womens breasts, or any human sexual act. It is intended to include not only

obscene items, but items of art which display human genitalia, uncovered womens breast or any human sexual act.

f. The introduction, possession, transfer, sale, creation or display of any sexually explicit photograph, videotape,

movie, drawing, book or magazine. For purposes of this order, sexually explicit means any medium displaying the

human anatomy in any unclothed or semi-clothed manner and which displays portions of the human torso (i.e., the area

below the neck, above the knees and inside the shoulder). By way of example, but not limitation, are body building

magazines, swim-suit editions of periodicals, lingerie or underwear advertisement, and catalogues, as well as visual

mediums which infer but do not directly show human genitalia, womens breasts, or human sexual acts.

g. Gambling of any kind, including sports pools, lotteries and raffles.

h. Removing, possessing, selling, defacing, destroying archeological artifacts, or national treasures.

i. Selling, bartering or exchanging any currency other than at the official host-nation exchange rate.

Chapter 10, Appendix C

Criminal Law

196
4. This order is punitive. Persons subject to the Uniform Code of Military Justice may be punished under Art. 92,

UCMJ for violating a lawful general order. Civilians accompanying the armed forces of the U.S. may face adverse

administrative action.

5. All persons subject to this order are charged with the individual duty to become familiar with and respect the laws,

regulations, and customs of their host nation insofar as they do not interfere with the execution of their official duties.

Individual acts of insensitivity or flagrant violations of host nation laws, regulations and customs may be punished as a

dereliction of duty under Art. 92, UCMJ. Civilians accompanying the Armed Forces may face adverse administrative

action.

6. Unit commanders and supervisors are charged to ensure all, repeat all, personnel are briefed on the prohibition of

these activities.

7. Items that violate this General Order may be considered contraband and may be confiscated. Before destruction of

contraband, commanders or law enforcement personnel should coordinate with their servicing staff judge advocate.

8. This General Order will expire upon the completion of Operation Desert Shield unless rescinded, waived or

modified.

9. Because tolerance varies for some of these activities across the AOR, authority to waive or modify the prohibitions of

this order relative to alcoholic beverages, sexually explicit materials and gambling is delegated to the designated

commanding officers (DCO) for the respective host nation AOR countries. (See Appendix A to CENTCOM Reg. 27-2;

i.e., Saudi Arabia, Egypt and Oman rests with COMUSCENTAF; Bahrain and UAE rests with COMUSNAVCENT).

Staff judge advocates for the designated commanding officers are to coordinate all waivers with the USCENTCOM Staff

Judge Advocate.

Chapter 10, Appendix C

Criminal Law

197
JTF 190 (HAITI) GENERAL ORDER NO.1

1. TITLE: Prohibited activities of Joint Task Force 190 (JTF 190) personnel serving in the joint operations area (JOA).

2. PURPOSE: To prohibit conduct that is to the prejudice of good order and discipline of JTF 190, is of a nature likely

to bring discredit upon JTF 190, is harmful to the health and welfare of members of JTF 190, or is essential to preserve

U.S. and host nation relations.

3. APPLICABILITY: This general order is applicable to all U.S. military personnel assigned or attached to JTF 190,

and all U.S. civilian personnel serving with, employed by, or accompanying forces assigned or attached to JTF 190.

4. AUTHORITY: The Uniform Code of Military Justice (UCMJ), Title 10, United States Code, section 801 et. Seq.

5. PROHIBITED ACTIVITIES:

a. Purchase, possession, use, or sale of privately-owned firearms, ammunition, or explosives, or the introduction of

these items into the JOA.

b. Entrance into Haitian churches, temples, or structures conducting religious worship, or to other sites of religious

significance, unless directed by a superior authority or required by military necessity.

c. Introduction, purchase, possession, use, sale, transfer, manufacture, or consumption of any alcoholic beverage

without the approval of a commander in the grade of 06 or above.

d. Introduction, purchase, possession, use, sale, transfer, manufacture, or consumption of any controlled substance

as defined by Article 112a, UCMJ, and Schedules I through V of the Controlled Substance Act of 1970, 21 USC Section

812.

e. Gambling of any kind, including sports pools, lotteries, and raffles.

f. Removing, possessing, selling, defacing, or destroying archeological artifacts or national treasures.

g. Selling, bartering, or exchanging currency other than at the official exchange rate, if any.

h. Taking or retention of individual souvenirs or trophies

(1) Explanation of prohibition:

(a) Private property may be seized during combat operations only on order of a commander based on

military necessity. The wrongful taking of private property, even temporarily, violates Article 121, UCMJ.

(b) Public property captured by U.S. personnel is the property of the U.S.. Wrongful retention of such

property by an individual violates Article 108, UCMJ.

(c) No weapon, munition, or military article of equipment captured or acquired by any means other than

official issue may be retained for personal use or shipped out of the JOA for personal retention or control.

i. Selling, reselling, loaning, or otherwise transferring rationed or controlled items or relief supplies outside official

relief channels.

j. Throwing at civilians any food items, including candy or Meals Ready to Eat (MREs), or any beverage,

including water, from moving vehicles.

Chapter 10, Appendix C

Criminal Law

198
k. Do not engage in any sexual conduct or contact with any member of the Haitian populace.

l. Adopting as pets or mascots, caring for, or feeding any type of domestic animal (e.g., dogs or cats) or any type of

wild animal. These animals may be infected with a variety of diseases that can be transmitted from animals to humans,

and can harbor organisms capable of transmitting diseases to humans (including rabies) that have a high potential for

adversely affecting the health of the command.

m. Eating food or drinking beverages grown or produced, prepared or served by local Haitian vendors, restaurants,

or facilities. Only food and beverages approved by the Commander, JTF 190, or his designee, may be consumed by JTF

190 personnel.

6. FURTHER RESTRICTIONS: Providing food items directly to or feeding civilian refugees. Odd items may be

donated to Humanitarian Relief Organizations (HROs) engaged in humanitarian relief efforts after appropriate medical

inspection and release approval by an 05 commander. This provision does not prohibit the distribution of small items,

such as pieces of candy, to civilian refugees when such distribution is approved by the individuals supervising NCO or

officer and is under conditions that are safe both for the recipients and the military personnel involved. (See paragraph 5j

above).

7. PUNITIVE ORDER: Paragraph 5 of this General Order is punitive in nature. Persons subject to the UCMJ may be

court-martialed or receive adverse administrative action, or both, for violations of this General Order. Likewise, civilians

serving with, employed by, or accompanying JTF 190 may face criminal prosecution or adverse administrative action for

violation of this General Order.

8. INDIVIDUAL DUTY: All persons subject to this General Order are charged with the duty to become familiar with

this General Order and local laws and customs. The JTF 190 mission places U.S. Armed Forces and civilian personnel

into a country whose laws and customs prohibit or restrict certain activities which are generally permissible in the United

States. All personnel shall avoid action, whether or not specifically prohibited by this General Order, which might result

in or reasonably be expected to create the appearance of a violation of this General Order or local law or customs.

9. UNIT COMMANDER RESPONSIBILITIES: Commanders and civilian supervisors are charged with ensuring that

all personnel are briefed on the prohibitions and requirements of this General Order. Commanders and supervisors are

expected to exercise good judgment in reinforcing this General Order.

10. CONFISCATION OF CONTRABAND: Items which are determined to violate this General Order and or constitute

contraband may be confiscated. Commanders, supervisors, military customs inspectors, and other officials will enforce

this General Order in their inspections of personnel and equipment prior to and during deployment to the JOA and upon

deployment from the JOA. Before destruction of contraband, commanders or law enforcement personnel will coordinate

with their Staff Judge Advocate.

11. EFFECTIVE DATE: This General Order is effective upon the date of the assumption of command of Joint Task

Force 190 and the MNE by the undersigned.

12. EXPIRATION: This General Order will expire when rescinded by the Commander, JTF 190, or higher authority.

13. WAIVER REQUESTS: Requests to waive prohibitions of this General Order must be coordinated with the JTF 190

Staff Judge Advocate.

Chapter 10, Appendix C

Criminal Law

199
ALLIED FORCE/ALLIED HARBOR (BALKANS) GENERAL ORDER NO. 1

General Order 1 in Support of Allied Force and Humanitarian Efforts in the Balkans

(Taken from USCINCEUR VAIHINGEN GE msg 122330 APR 99)

This is a lawful general order approved, issued, and published by USCINCEUR

1. Title: Prohibited Activities For U.S. Personnel Deployed In The Region Of The Former Yugoslavia In Support Of

Allied Force And Humanitarian Efforts In The Balkans.

2. Authority: Title 10 United States Code section 164(c)(1)(f) and the Uniform Code of Military Justice (UCMJ)(Title 10

United States Code sections 801-940).

3. Applicability: This general order is applicable to all U.S. military and civilian personnel serving with or accompanying

the armed forces of the United States deployed in support of NATO Operation ALLIED FORCE or NATO Humanitarian

Operation ALLIED HARBOR, deployed to the land, territorial seas and airspace of Albania and the nations which

formerly comprised the nation of Yugoslavia, to include Croatia, Bosnia-Herzegovina, Macedonia, Serbia and

Montenegro. This general order does not cover individuals assigned or attached to SFOR. With regard to military

members this general order is punitive. With regard to civilian personnel it may serve as the basis for adverse

administrative action in case of violation of its provisions.

4. Statement of Military Purpose and Necessity: Restrictions upon certain activities are essential to maintain the security,

health and welfare of U.S. forces; to prevent conduct prejudicial to good order and discipline or of a nature to bring

discredit upon the U.S. forces; and to improve U.S. relations within the region. These restrictions are essential to preserve

U.S. relations with host nations and other friendly forces. Furthermore, current operations place U.S. armed forces in

countries where local law and customs prohibit or restrict certain activities. This general order to ensure good order and

discipline are maintained and host nation laws are respected to the maximum extent consistent with mission

accomplishment.

5. Prohibited Activities:

5a. Taking, possessing, or shipping captured, found or purchased weapons without legal authority or for personal use.

Without legal authority means an act or activity undertaken by U.S. personnel that is not done at the direction of a

commander or as a result of military necessity during the performance of military duties.

5b. Introduction, possession, use, sale, transfer, manufacture, or consumption of any alcoholic beverage or controlled

substance. Individuals are authorized to consume alcoholic beverages, e.g., toasts, whenever refusal to do so would

offend most nation military or civilian officials,

5c. Possessing, touching, using, or knowingly approaching without legal authority any unexploded munitions or

ordnance, of any kind or description whatsoever.

5d. Purchase, possession, use, sale, or introduction of privately owned firearms, ammunition, and explosives.

5e. Gambling of any kind, including betting on sports, lotteries and raffles.

5f. Selling, bartering, or exchanging any currency other than at the official host nation exchange rate.

5g. Entrance into a religious shrine or mosque unless approved by or directed by military authorities or compelled by

military necessity.

5h. Removing, possessing, selling, transferring, defacing, or destroying archeological artifacts or national treasures.

Chapter 10, Appendix C

Criminal Law

200
5i. Participating in any form of political activity of the host nation, unless directed to do so as part of the mission.

5j. Taking or retaining public or private property as souvenirs of the operation. Legitimately purchased souvenirs,

other than weapons, munitions, or items prohibited by customs regulations are authorized.

6. Punitive Order: To reiterate, this order is punitive. Persons subject to the Uniform Code of Military Justice who violate

this order may be punished under Article 92, UCMJ, for violating a lawful general order. Civilians accompanying the

U.S. armed forces may face adverse administrative actions for violations.

7. Individual Duty: Persons subject to this general order are charged with the individual duty to become familiar with and

to respect, the laws, regulations, and customs of the host nation insofar as they do not interfere with the execution of their

official duties. Individual acts of disrespect or flagrant violations of host nation laws, regulations, and customs may be

punished as a violation of the UCMJ for military members and may lead to adverse administrative action against civilians

who violate its provisions. Commanders should remind servicemembers of their responsibilities under the code of

conduct and the provisions of the international law of armed conflict.

8. Unit Commander Responsibility: Unit commanders and supervisors are to ensure that all personnel are briefed on the

contents of this general order.

9. Contraband: Items determined to violate this general order may be considered contraband and may be confiscated.

Before destruction of contraband, commanders, or law enforcement personnel should coordinate with their servicing staff

judge advocate.

10. Effective Date: This general order is effective immediately. An amnesty period of 72 hours is granted, from the

effective date of this general order, for personnel to surrender or dispose of items that violate this general order.

Individuals or commanders may arrange for safekeeping of personal firearms with their unit military law enforcement

activity. There is no amnesty period for alcoholic beverages.

11. Expiration: This general order will expire upon the completion of operations unless it is rescinded, waived or

modified.

12. Waiver Authority: Mission requirements may permit and host nation tolerance may allow for the consumption of

alcohol in certain portions of the area of operations. Therefore, authority to waive or modify the prohibitions of this order

relative only to alcoholic beverages is delegated to Joint Task Force Commanders. When waiver or modification is

granted, commanders who grant such waivers will notify DCINC USEUCOM immediately. Requests for waiver of other

provisions beyond their authority will be directed to DCINC USEUCOM.

13. Staff judge advocates for the waiver authorities will provide the USEUCOM judge advocate with copies of all waivers

granted to this order.

14. When commanders inform subordinates of the provisions of this general order, they will also inform them that I am

personally very proud of their courage, professionalism and dedication to duty under very difficult circumstances. Make

no mistake about it, the tasks we are undertaking are difficult and will call for personal sacrifice. Nevertheless, I know

that when our servicemembers are called upon to make personal sacrifices as representatives of their country they always

perform selflessly and brilliantly. I cannot over-emphasize the trust, faith and confidence I have in them. They will get

the mission done with skill and expertise out of a sense of duty and patriotism. What they are doing they are doing for

America. I know that when participants look back on their role in this worthy endeavor, whether it he fighting for their

country or helping to feed and care for the dispossessed in this strife-torn part of the world, that it will be with pride. They

will know that their sacrifice made a difference in the lives of those in need.

Signed, Wesley K. Clark, Commander-in-Chief, U.S. European Command, General, U.S. Army.

Chapter 10, Appendix C

Criminal Law

201
Ch

apter 10, AppendixC

Criminal Law

202
CHAPTER 11

ENVIRONMENTAL LAW IN OPERATIONS

References:

1. Field Manual 3-100.4, Environmental Considerations in Military Operations (1 June

2000).

2. Executive Order 12,114, 44 Fed. Reg 1957 (1979).

3. DoD Directive 6050.7, Environmental Effects Abroad of Major Department of Defense

Actions (31 March 1979).

4. AR 200-2, Environmental Effects of Army Actions (23 Dec. 1988).

5. AFI 32-7006, Environmental Programs in Foreign Countries (29 Apr 1994).

6. OPNAVINST 5090.1B, Environmental and Natural Resources Manual (1 Nov 94).

7. OPNAVINST 3100.5E, Navy Operating Area and Utilization of Continental Shelf

Program (17 Nov. 88).

8. MCO 5090.2A, Environmental Compliance and Protection Manual (10 Jul 98).

9. Joint Pub. 4-04, Joint Doctrine for Civil Engineering Support, II-7 (26 Sep. 1995).

10. DoD Instruction 4715.5, Management of Environmental Compliance at Overseas

Installations (22 Apr. 1996).

According to the U.S. Armys Environmental Strategy for the 21st Century, [T]he Army will be a leader in

environmental stewardship. This sweeping statement of objective is not limited to garrison environments. As a result,

the judge advocate must advise commanders and train soldiers regarding environmental law issues related to overseas and

domestic military operations. First, judge advocates must recognize environmental law issues that other officers and

officials may not have considered. Second, judge advocates must know how to analyze these issues and develop

appropriate and credible solutions for such issues. Third, judge advocates must be prepared to advise and train supported

commanders and units in environmental aspects of domestic and overseas operations along the entire operational

spectrum.

Frankly, this is an area where the doctrine has actually gotten ahead of law and policy. In particular, documents like

Field Manual (FM) 3-100.4 [jointly issued with the Marines as Marine Corps Reference Publication (MCRP) 4-11B]

Environmental Considerations in Military Operations, 1 June 2000, are excellent tools to assist the operational law

attorney. This publication, as well as virtually every other reference document you may need relating to environmental

issues, can be found at www.denix.osd.mil, the Department of Defenses Environmental Network and Information

Exchange. Attorneys should access this site as early as possible in order to obtain a password and fuller access to

restricted databases.

Protecting the environment is today a major international, United States, and Department of Defense concern. The

international community is increasingly vigilant in its oversight of the environmental consequences of military operations.

Judge advocates must ensure that leaders are aware of both the rules and the importance of complying with these rules.

Failure to take adequate account of environmental considerations can jeopardize current and future operations, generate

domestic and international criticism, result in a loss of command money due to fines and penalties, produce costly

litigation, and result in personal liability for both the leader and the individual soldier.

As a final introductory matter, planners must be aware of the significant role played by contractors in environmental

matters. Whether a Logistics Civilian Augmentation Program (LOGCAP) contract or some other vehicle, much of the

environmental work in an operation is likely to be done by contract. Get your contract and fiscal law people involved

early. For a useful, short study of lessons learned in the various Bosnia operations see U.S. Army Environmental

Protection Activities during Operations Joint Endeavor, Joint Guard, and Joint Forge by Zettersten and Dale, in the

Winter 2000 edition of Federal Facilities Environmental Journal (available on DENIX).

Chapter 11

Environmental Law

203
ENVIRONMENTAL PLANNING REQUIREMENTS VS. ENVIRONMENTAL COMPLIANCE

REQUIREMENTS

In thinking about the application of environmental law to U.S. military operations, it is useful to distinguish between

two types of law. Some laws require that some type of environmental planning process be conducted in conjunction with

military operations. Other legal requirements may impose substantive restrictions on our operations (e.g. our ability to

discharge wastes into the air or water, or bury wastes in the ground, or transport them across international boundaries).

As a general rule, domestic environmental statutes have no extraterritorial application during overseas operations.

For instance, the Endangered Species Act (ESA), 16 U.S.C. §§1531-1543 (1973)171 and the National Environmental

Policy Act (NEPA) 42 U.S.C. §§4321-4370 (1969)172 are not generally considered to have extraterritorial application.173

NEPA does, however, apply to major federal actions located outside of the U.S. that have significant environmental

impacts inside the U.S. The location of the impact, and not the action, determines NEPA applicability.

Although the strict requirements of domestic statutes do not apply to most overseas operations, U.S. executive branch

policy, discussed below, is often couched as a requirement to adhere to U.S. environmental requirements, if feasible.

174

Because of this perceived general policy, during Operations Desert Shield/Storm many Judge Advocates became

confused as to the need for an emergency waiver. In fact, several of the Desert Storm Assessment Team Report

(DSAT) assumptions are inaccurate because of confusion about the need to apply NEPA to our activity in Southwest

Asia.175 In reality, no such waiver was needed.

Environmental Planning Requirements: Executive Order No. (EO) 12,114.

176 Executive Order 12,114 creates NEPA

like rules for overseas operations. EO 12,114, however, only applies to specific categories of major federal actions

which have significant effects on the environment outside the U.S. This EO is implemented in DoD by DoD Directive

6050.7, Environmental Effects Abroad of Major Department of Defense Actions, 31 March 1979. This Directive is in turn

implemented by various Regulations and Instructions of the Armed Services. For the Army, AR 200-2, Environmental

Effects of Army Actions (23 Dec. 1988, but a completely rewritten regulation is due out in the future) implements it. It is

implemented in the Air Force by AFI 32-7006, Environmental Program in Foreign Countries, Chapter 4 (29 Apr 1994).

The Navy implements it by OPNAVINSTs 5090.1B and 3100.5E. The Marine Corps implements the directive by MCO

5090.2A. The following analysis walks you through the application of EO 12,114 to a military mission.

Pre-Operation Planning

171 The U.S. Supreme Court reversed the one case where the ESA had been found to have extraterritorial application. The Court's rationale, however,

was not based upon any of the substantive environmental issues involved, but on lack of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.

Ct. 2130 (1992). Most scholars, however, believe the result would have been the same had the Court considered the extraterritoriality question.

172 NEPA does not serve to prohibit actions; instead it creates a documentation requirement that ensures that Agency decision-makers consider the

environmental impact of federal actions. The required documents are usually referred to as either environmental assessments (EA) or environmental

impact statements (EIS). The production of these documents can cause substantial delays in a planned federal action.

173 For a statute to have extraterritorial application there must be language within the statute that makes "a clear expression of Congress' intent for

extraterritorial application." With one exception, courts have consistently refused to apply NEPA outside of the U.S. In that one case, Environmental

Defense Fund v. Massey, 986 F.2d 528 (D.C. Cir. 1993), the court held that NEPA applies to the National Science Foundation's decision to burn food

wastes in Antarctica. This finding (the exception and not the rule) was based upon the absence of a sovereign within Antarctica and because the agency

decision-making occurred within the U.S.. More recently, in NEPA Coalition of Japan v. Defense Department, 837 F. Supp. 466 (D.D.C. 1993), the

court refused to make an extraterritorial application of NEPA. The court cited (1) the strong presumption against extraterritorial application, (2)

possible adverse affect upon existing treaties, and (3) the adverse affect upon U.S. foreign policy.

174 U.S. ARMY LEGAL SERVICES AGENCY, THE DESERT STORM ASSESSMENT TEAM'S REPORT TO THE JUDGE ADVOCATE GENERAL OF THE ARMY,

Environmental Law 3 & Issue 143 (22 Apr. 1992) [hereinafter DSAT]. Some Judge Advocates during OPERATION DESERT STORM received

confusing guidance to apply U.S.-like environmental protections to their activities, when feasible. This guidance was not based upon the requirements

of either NEPA or Executive Order No. 12,114. Every SINGLE U.S. activity within Southwest Asia (taken pursuant to Operations Desert

Shield/Storm) was exempted under Executive Order No. 12,114 (see discussion later in this chapter for an explanation of exempted status under EO

12,114).

175 See id. at Environmental Law 1-3.

176 Exec. Order No. 12,114, 44 Fed. Reg. 1957 (1979) reprinted at 42 U.S.C. § 4321, at 515 (1982) [hereinafter EO 12,114]. Portions of EO 12,114 are

reprinted and discussed in Appendixes G and H, Army Regulation 200-2, Environmental Effects of Army Actions (23 Dec 88).

Chapter 11

Environmental Law

204
General Considerations. Judge advocates must recognize that Executive Order 12,114 always mandates some degree of

environmental stewardship by United States forces in regard to its operations outside of the United States or its territories.

Judge advocates should add this short document to their operational law library and refer to it during the operational

planning phase. In addition to the Order, military lawyers should turn to the more specific documents that implement the

Order: Department of Defense Directive 6050.7 (DoD Directive 6050.7),

177 and Army Regulation 200-2 (AR 200-2).

When executing a mission within a foreign nation, the military leader should first consider three general rules that

dictate the interpretation and compliance with all other rules. First, the United States, based upon operational realities and

necessities, should take all reasonable steps to act as a good environmental steward. Second, the United States should

respect treaty obligations and the sovereignty of other nations. This means, at a minimum, exercising restraint in

applying U.S. laws within foreign nations unless Congress has expressly provided otherwise.

178 Third, any acts

contemplated by officials within the Department of Defense that require formal communications with foreign

governments concerning environmental agreements and other formal arrangements with foreign governments must be

coordinated with the Department of State.179

The Required Analysis and Actions. Instead of promulgating additional and possibly more onerous requirements, the

Armys regulation simply restates the requirements of DoD Directive 6050.7.

180 Very similar to Executive Order 12,114,

DoD Directive 6050.7 is organized around four types of environmental events described within the Order:

1. Major federal actions that do significant harm to the global commons;

2. Major federal actions that significantly harm the environment of a foreign nation that is not involved in the

action;

3. Major federal actions that are determined to be significant[ly] harm[ful] to the environment of a foreign nation

because they provide to that nation: (1) a product, or involve a physical project that produces a principal product,

emission, or effluent, that is prohibited or strictly regulated by Federal law in the United States because of its toxic effects

[to] the environment create a serious public health risk; or (2) a physical project that is prohibited or strictly regulated in

the United States by Federal law to protect the environment against radioactive substances;

4. Major federal actions outside the United States that significantly harm natural or ecological resources of global

importance designated by the President or, in the case of such a resource protected by international agreement binding on

the United States, designated for protection by the Secretary of State.181

The judge advocate must consider whether the proposed operation might generate any one of the four environmental

events listed above. If the answer is yes, then the military leader should either seek an exemption or direct the production

of either a bilateral or multilateral environmental study (ES), or a concise environmental review (ER) of the specific

issues involved (which would include an environmental assessment, summary environmental analysis, or other

appropriate documents).

The Participating Nation Exception. As the judge advocate proceeds through the regulatory flowchart of required

analysis and actions, the most important and frequently encountered problem is the participating nation determination.182

This is because most overseas contingency operations do not generate the first, third, or fourth types of environmental

177 Dept of Defense, Dir. 6050.7, Environmental Effects Abroad of Major DoD Actions (31 March 1979) [hereinafter DoD Dir. 6050.7].

178 Id. at para. 8-3 (b). This general rule has a substantial impact on the interpretation of domestic law requirements. For instance, the scope and format

of any environmental review conducted within a foreign nation is controlled not just by United States law and regulation, but by relevant international

agreements and arrangements. See id. para 8-5 (a).

179 Id. at para. 8-3 (c). The judge advocates that work the environmental law issues should open a line of communication with a point of contact (POC)

in the Department of State early on in the process.

180 Id. at App. H.

181 Id. at App. H, para. B.

182 Id. at App H, para. B.1.a.

Chapter 11

Environmental Law

205
events listed above. Accordingly, a premium is placed upon the interpretation of the second type of environmental event

(major federal actions that significantly harm the environment of a foreign nation that is not involved in the action).

The threshold issue appears to be whether or not the host nation is participating in the operation. If the nation is

participating, then no study or review is technically required.

183 Of the four recent contingency operations (Somalia;

Haiti; Guantanamo Bay, Cuba; and Bosnia), the United States relied upon the so called participating nation exception in

Haiti and Bosnia. In Somalia and Guantanamo Bay, because neither Somalia nor Cuba participated with the United

States forces in either Operation Restore Hope or Operation Sea Signal, the United States could not utilize the

participating nation exception. Accordingly, the United States had a choice of accepting the formal obligation to conduct

either an ES or an ER, or seeking an exemption. In both cases, the United States sought and received an exemption.184

How does the military lawyer and operational planner distinguish between participating and non-participating

nations? The applicable Army regulation states that the foreign nation involvement may be signaled by either direct or

indirect involvement with the United States, and even by involvement through a third nation or international

organization.185

The foregoing regulatory guidance is helpful, but the nuanced and uncertain nature of peace operations requires

additional discussion on this point. One technique for discerning participating nation status is to consider the nature of

the entrance into the host nation. There are generally three ways that military forces enter a foreign nation: 1) a forced

entry, 2) a semi-permissive entry, or a 3) permissive entry. United States forces that execute a permissive entry are

typically dealing with a participating (cooperating) nation. Conversely, United States forces that execute a forced entry

would rarely deal with a participating nation. The analysis required for these two types of entries is fairly straightforward.

The semi-permissive entry presents a much more complex question. In this case, the judge advocate must look to the

actual conduct of the host nation. If the host nation has signed a stationing or status of forces agreement, or has in a less

formal way agreed to the terms of the United States deployment within the host nations borders, the host nation is

probably participating with the United States (at a minimum in an indirect manner). If the host nation expressly agrees to

the United States entry and to cooperate with the military forces of United States, the case for concluding the nation is

participating is even stronger.186 Finally, if the host nation agrees to work with the United States on conducting a bilateral

environmental review, the case is stronger still.187

183 Nevertheless, a study or review of some nature has been promulgated in every recent operation.

184 See Memorandum, Lieutenant General Walter Kross, Director, Joint Staff, to The Under Secretary of Defense for Acquisition and Technology,

subject: Exemption from Environmental Review (17 Oct. 1994) [hereinafter Kross Memorandum] (In regard to Operation Sea Signal, General Kross

forwarded the CINCUSACOM request for exemption. The request was based on a disciplined review of Sea Signals probable environmental impact, a

short rendition of the facts, and a brief legal analysis and conclusion). See also CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE

GENERALS SCHOOL, UNITED STATES ARMY, AFTER ACTION REPORT, UNITED STATES ARMY LEGAL LESSONS LEARNED, OPERATION RESTORE HOPE,

5 DECEMBER 1992 - 5 MAY 1993, 23 (30 March 1995) [hereinafter RESTORE HOPE AAR]. It is important to note that in both operations, even though

United States forces received an exemption from the review and documentation requirement, the United States still prepared an environmental audit and

United States forces applied well established environmental protection standards to events likely to degrade the host nations environment.

Lieutenant Colonel Richard (Dick) B. Jackson, having served as a legal advisor with the United States Atlantic Command Staff Judge Advocates

Office during both Operations Uphold Democracy and Sea Signal notes that Cuba never did anything, by act or omission that could be construed as

cooperating or participating in Operation Sea Signal. On the other hand, the entrance of United States forces into Haiti was based upon an invitation

that was reduced to writing and signed by the Haitian head of state, President Emile Jonassaint, on September 18, 1994. In fact, this agreement, signed

by former President Jimmy Carter and President Jonassaint and referred to as the Carter-Jonassaint Agreement, expressly stated that Haitian authorities

would work in close cooperation with the U.S. Military Mission. Interview, Lieutenant Colonel Richard B. Jackson, Chair, International and

Operational Law Department, The Judge Advocate Generals School, United States Army, Charlottesville, Virginia (Mar. 20, 1997). See also CENTER

FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERALS SCHOOL, UNITED STATES ARMY, LAW AND MILITARY OPERATIONS IN

HAITI, 1994 - 1995  LESSONS LEARNED FOR JUDGE ADVOCATES App. C (1995) [hereinafter the CLAMO HAITI REPORT].

185 See AR 200-2, supra note 176, at App. H, para. A.1.a.

186 See Memorandum, Major Mike A. Moore, United States Atlantic Command, J4 - Engineer to Lieutenant Colonel Richard (Dick) B. Jackson, subject:

Environmental Concerns of MNF (24 Jan. 1995) [hereinafter Moore Memorandum] (explaining the EO 12,114 did not apply to Operation Uphold

Democracy because Haiti was a participating nation, and going on to explain that United States forces should coordinate with Haitian authorities to

conduct a bilateral environmental audit).

187 Id. at para. 4.

Chapter 11

Environmental Law

206
There is no requirement for a status of forces or other international agreement between the host nation and United

States forces in order to document participating nation status. Participation and cooperation, however evidenced, is the

only element required under Executive Order 12,114 and its implementing directive. As lawyers, however, we look to the

most logical and obvious places for evidence of such participation. In recent operations, the United States and its host

nation partners have documented the requisite participation within such agreements.

The decision to assume participating nation status is made at the unified command level, by the combatant

commander.188 In addition, once this election is made, the second decision of what type of environmental audit

189 to

perform is also made at the unified command level.190 In the cases of Operations Uphold Democracy and Joint Endeavor,

the complete action was prepared by the tandem effort of the respective J4-Engineer Section and the Staff Judge

Advocates Office.

191 It was also these members of the staff that disseminated the environmental guidelines and standards

adopted in the operations plans.

Operation Joint Endeavor is the most recent example of a participating nation. Under the terms of the Dayton Peace

Accords,192 the parties agreed to welcome and endorse the arrangements and agreements to implement the Accords

military aspects, to include the mission of the Implementation Force (IFOR) led by United Sates forces.

193 The detailed

nature of the Accord, particularly article VI, removes any doubt that all parties agreed to participate in an endeavor to

bring peace to the nations of the Former Yugoslavia. The obligation to work together, coordinate decisions, and provide

logistical support is abundantly clear.

The operational planners for Operation Joint Endeavor and their legal advisors integrated this analysis into their

planning.

194 They found that each of the nations that the operation might impact was participating. They forwarded their

conclusions to General George A. Joulwan, then Commander-in-Chief, European Command, who approved the

participating nation status by approving the environmental appendix to the operation plan.

195 As described earlier, General

Joulwans action took advantage of the participating nation exception.

The Exemptions. If the facts in a particular operation, are similar to those in either Operations Joint Endeavor or Uphold

Democracy, then judge advocates would, under most circumstances, find that the host nation is a participating nation, and

no further action would be required under regulations that implement Executive Order 12,114. If an exemption applies,

188 See DoD Dir. 6050.7, supra note 177.

189 See Moore Memorandum, supra note 186. The word audit was adopted in lieu of the words review or study to make clear that the

environmental assessment was driven by policy and not the formal documented review or study requirement of EO 12,114 or DoD Dir. 6050.7.

190 Telephone interview Lieutenant Colonel Mike A. Moore (the same officer referred to as Major Mike A. Moore in earlier notes), United States

Atlantic Command, J4 - Engineer (27 Mar. 1997) [hereinafter Moore Interview] (Lieutenant Colonel Moore served as the action officer tasked with

determining what legal responsibilities the Command owed the environment during Operations Sea Signal and Uphold Democracy. He was also tasked

with ensuring that an environmental audit was performed for Operation Uphold Democracy. Based upon his almost daily coordination with judge

advocates with the Commands legal office, he and the Commands Staff Judge Advocate recommended that the Commander-in-Chief adopt the

participating nation status and conduct a thorough environmental audit. Lieutenant Colonel Moore noted that the authority to make the decision rested

at the unified command level. He also stated that several of the exemptions within EO 12,114 were pre-delegated down to United States Atlantic

Command).

191 Id.

192 General Framework Agreement for Peace in Bosnia and Herzegovina [hereinafter the Dayton Accords]. The text of the Dayton Accords was

initialed in Dayton, Ohio on November 21, 1995, and signed in Paris, France, on December 14, 1995. The United nations Security council, in

acknowledgment of the Accords , issued Resolution 1031 (attaching , authorizing a multi-national implementation force (IFOR) to take all necessary

measures to effect the implementation of Annex 1-A of the Accords. See S.C. Res. 1031, U.N. SCOR, 50th Sess., 3607th mtg., UN Doc. S/RES/1031

(1995) [hereinafter Resolution 1031].

193 Id. at art. II.

194 See Tab B to Appendix 5 to Annex D to United States Atlantic Command, Commander in Chief, Operations Plan 4243 (Operation Joint Endeavor):

Environmental Considerations and Services (Unclassified) (2 December 1995) [hereinafter Joint Endeavor Operation Plan] The planners wrote that one

of several major assumptions was that [a]ll foreign nations potentially impacted by [the] operation are active participants or [are] otherwise involved in

the operation. The import of this assumption is that it grants the participating nation exception to Executive Order 12,114s formal environmental

review or study requirement. The plan went on to document that the limited amount of time available to prepare for the execution of the operation

warrants the use of the exception. Very important to this analysis and not mentioned within the plan is the fact that the decision to take advantage of the

participating nation exception can be made at the Unified Command level. Accordingly, the Commander and Chief, United States European Command

does not have to forward this decision to a higher level of authority.

195 Id.

Chapter 11

Environmental Law

207
and is granted by the proper authority, then the Executive Order requires no further action (meaning no formal

documented review or study is required under DoD Directive 6050.7).196

Operations Restore Hope and Sea Signal provide recent examples of exempted operations. In Operation Sea Signal,

for example, military lawyers quickly determined that Cuba could not be considered as a participating nation.

Consequently, they considered the array of exemptions provided in DoD Directive 6050.7 and forwarded an exemption

request based upon the exemption of national security.197

The exemptions are broad and would likely provide exempted status to most foreseeable overseas military operations.

Consequently, these operations would enjoy exemption from the NEPA-like documented review requirements of

Executive Order 12,114.

Unlike the participating nation exception, however, exempted status requires that the military leader take an

affirmative step to gain a variance from the formal documentation requirements.198 In the case of Operation Sea Signal,

the Commander in Chief, United States Atlantic Command (CINCUSACOM) forwarded a written request for exempted

status for the construction and operation of temporary camps at Naval Station Guantanamo Bay, Cuba. The request was

forwarded through appropriate legal channels and the Joint Staff (through the Chairmans Legal Advisors Office) to Mr.

Paul G. Kaminski, The Under Secretary of Defense (Acquisition and Technology), for approval. Mr. Kaminski approved

the request, citing the importance of Operation Sea Signal to national Security.199

The entire written action was only three pages long, including the one page memorandum action--three short

paragraphs signed by Mr. Kaminski.

200 The action is shorter than most actions that involve the environment, because it

may be drafted and forwarded with little prior review of environmental impact. In fact, the military lawyers involved in

the process (the probable drafters of the action) need only know that the proposed operation is:

(1) A Major Federal Action;

(2) Which will likely Cause Significant Harm to the Host Nations Environment;

(3) Where the Host Nation Is Not Participating; and

(4) One of the Ten Exemptions Is Applicable.

196 DoD Dir. 6050.7, supra note 177.

197 See Memorandum, Paul G. Kaminski, Under Secretary of Defense (Acquisition and Technology), to Director, Joint Staff, subject: Exemption from

Environmental Review Requirements for Cuban Migrant Holding Camps at Guantanamo, Cuba (Operation Sea Signal Phase V) (5 Dec. 1994).

198 Under the participating nation exception, the unified commander may simply approve the operation plan that integrates the exception into its

environmental consideration appendix. See Joint Endeavor Operation Plan, supra note 194.

199 The decision memorandum integrated into the final action informed the Under Secretary of Defense, For Acquisition and Technology (the approval

authority) that the CINCUSACOM had determined that Cuba was not a participating nation and that a significant impact on the host nation environment

was likely. The author of the memorandum, therefore, requested that the approval authority grant an exemption based upon the national security

interests involved in the operation. See Kross Memorandum, supra note 184.

200 The memorandum action provided the (1) general rule, as required by Executive Order 12,114 and DoD Directive 6050.7, (2) the explanation of

why the operation does not fall within either of the two exceptions (either an action that does not cause a significant environmental impact or involving a

host nation that is a participating nation), and (3) the four courses of action. The courses of action were provided as follows:

(1) Determination the migrant camp operation has no significant impact;

(2) Seek application of the national security interest or security exemption;

(3) Seek application of the disaster and emergency relief operation exemption; or

(4) Prepare an NEPA-like environmental review.

The action then provided discussion regarding each of the four options. The action explained that the first option is without merit because the

migrant camp will clearly have an adverse impact on the environment. It found merit with each of the exemptions, but concluded that approval of an

exemption alone might later subject the Department of Defense to criticism on the ground that it actively avoided its environmental stewardship

responsibility. The last option was rejected as setting an inappropriate and unsound precedent of admitting legal responsibilities not actually required by

the law. See Kross Memorandum, supra note 184.

Chapter 11

Environmental Law

208
Once the exemption is approved, then the exempted status should be integrated into the operation plan. If this event

occurs after the original plan is approved, the exempted status should be added as an additional appendix to the plan to

provide supplemental guidance to the environmental consideration section of the basic plan.

It is the policy of the United States to always conduct a good faith environmental audit to reduce potential adverse

consequences to the host nations environment.

201 The reason the United States seeks to avoid the formal review or study

requirement is to enhance operational flexibility, and in turn, enhance the opportunity for operational success.202

The practical result of the United States policy is that United States forces require adherence to United States

domestic law standards for environmental actions where such procedures do not interfere with mission

accomplishment.

203 Accordingly, from the planning phase to the execution phase, the environment is an important aspect

of all United States operations.

Early involvement by judge advocates is essential to ensure that all appropriate environmental reviews have been

completed either prior to the entry of United States forces, or as soon thereafter as is possible.204 Additionally, lawyers at

all levels of command must be cognizant of an operations environmental dimension so that they can ensure that the

doctrinally required consideration is integrated into operation plans and orders, training events, and civil-military

operations.205

Executing the Operation Plan

The military lawyers job is not complete once the operation plan is drafted and approved. He must be heavily

involved in the execution phase. Leaders, having read the general guidance contained within the operation order, will

seek the lawyers assistance in the onerous task of translating this guidance into action.206 The judge advocate must ensure

that this translation takes a form that those charged with its execution can easily understand.

207 All four of the operations

cited above serve as good examples of this type of lawyering.

Joint doctrine provides the framework for the foregoing translation and related legal work.208 This framework

contains seven elements for environmental planning and compliance. These elements are as follows:

(1) Policies and Responsibilities to Protect and Preserve the Environment During the Deployment;

(2) Certification of Local Water Sources by Medical Field Units;

201 See DEPT OF DEFENSE, JOINT PUB. 4-04, JOINT DOCTRINE FOR CIVIL ENGINEERING SUPPORT, II-7, para. 4.a. (26 Sep. 1995) [hereinafter JOINT PUB.

4-04] ([O]perations should be planned and conducted with appropriate consideration of their effect on the environment in accordance with applicable

U.S. and HN agreements, environmental laws, policies, and regulations).

202 It is not the intent of United States forces to circumvent their environmental stewardship responsibilities. Military leaders must work within the

system of law to balance operational success with many concerns, to include their environmental stewardship obligations.

203 During Operation Restore Hope, in Somalia, the multi-national force, under United States leadership, determined that the actions of United States

forces in that operation were exempted from Executive Order 12,114s formal review or study requirement, but the force adhered to United States

domestic law to the greatest extent possible (defined as the extent to which such adherence did not frustrate operational success). See RESTORE HOPE

AAR, supra note 184, at 23.

204 Id. at para. 4.b.

205 Id. at para. 4.c.

206 Interview, then Lieutenant Colonel George B. Thompson, Jr., Chief, International and Operational Law Division, Office of the Judge Advocate,

Headquarters, United States Army, Europe and Seventh Army, in Willingen, Germany (4 February 1997) (Lieutenant Colonel Thompson points out

that a number of judge advocates have their hands full working the day to day environmental piece. He stated that one such judge advocate was then

Major Sharon Riley, Officer in Charge of the 1st Infantry Divisions Schweinfurt Branch Office. Major Riley spent a good portion of her time in

Bosnia-Herzegovina, helping commanders determine acceptable environmental standards by balancing operational considerations and realities with the

Department of Defenses general environmental standards).

207 The translation will usually require more than a single articulation. For example, some degree of soldier training must occur to ensure that soldiers

understand the basic rules. This articulation of the standards is typically very basic. A more sophisticated articulation is made for subordinate

commanders and engineering personnel who execute the environmental compliance mission. See id.

208 See JOINT PUB 4-04, supra note 201, at II-8.

Chapter 11

Environmental Law

209
(3) Solid and Liquid Waste Management;

(4) Hazardous Materials Management (Including Pesticides);

(5) Flora and Fauna Protection

(6) Archeological and Historical Preservation; and

(7) Base Field Spill Plan.

209

Lawyers can use this framework when assisting military leaders in the construction of an environmental compliance

standard. In each of the foregoing operations, a checklist similar to the seven element framework set out above was used

to construct an environmental compliance model that took into account each element or item on the checklist. For

example, during Operation Joint Endeavor, military lawyers working in conjunction with the civil engineering support

elements and medical personnel established concise standards for the protection of host nation water sources and the

management of waste.210 This aspect of host nation environmental protection was executed and monitored by a team

comprised of judge advocates, medical specialists, and representatives from the engineer community.211

Lawyers, using this same type of framework, can troubleshoot problems that arise in compliance. For example,

during Operation Restore Hope, judge advocates working for the task force legal advisor conducted weekly coordination

meetings with members of the task force staff using a checklist similar to the seven element list described above.

The same approach was subsequently used in Operations Sea Signal, Uphold Democracy, and Joint Endeavor. Using

this approach, lawyers in Restore Hope discovered that the task force engineers planned to use waste oil to suppress the

dust problem, typical of many areas in Somalia, that hampered early aspects of the mission. Working with the task force

staff, task force lawyers advised the use of environmentally sound dust suppressants.212

In addition to the seven elements listed above, military lawyers must also integrate into the operation plan a directive

for documentation of initial environmental conditions. This was done in Operation Joint Endeavor, and pursuant to this

directive unit commanders took photographs and made notes in regard to the status of land that came under their units

control.

213 As a result of this excellent planning and execution, United States forces were protected against dozens of

fraudulent claims filed by local nationals.214

A particularly vexing problem for overseas operations is the transportation of hazardous waste across international

boundaries. The Basel Convention of 1989, which the United States has signed, but not ratified, imposes strict rules on

signatory countries with respect to the movement of hazardous waste across international boundaries. This presented

problems for our operations in both Bosnia and Kosovoparticularly with respect to Germany and Macedonia. The lead

209 Joint Publication 4-04 provides a description and examples of several of these seven elements. See id.

210 Although identified in the planning process, management and disposal of waste involved a significant expenditure of task force manpower and fiscal

assets. Early identification of environmental issues and continued monitoring in conjunction with others members of the staff is critical. See

HEADQUARTERS, UNITED STATES, EUROPEAN COMMAND, OFFICE OF THE LEGAL ADVISOR, INTERIM REPORT OF LEGAL LESSONS LEARNED: WORKING

GROUP REPORT, 3 (18 APRIL 1996).

211 This obligation was written into the operation plan under the heading Potable water. The central theme of this objective was to protect host nation

water sources from contamination by suitable placement and construction of wells and surface treatment systems, and siting and maintenance of septic

systems and site treatment units. See Joint Endeavor Operation Plan, supra note 194, at para. 3.c.(1), Tab B to Appendix 5, to Annex D.

212 Unfortunately, the suppressants did not perform well and eventually the task force had to resort to waste oil. However, the effort made to avoid the

use of oil demonstrates the sensitivity of United States forces to the Somali environment. In addition, once the decision was finally made to use waste

oil, the task force developed a plan to limit the use of oil and to prevent an unnecessarily harsh impact on the environment. See RESTORE HOPE AAR,

supra note 184, at 24.

213 See Joint Endeavor Operation Plan, supra note 194, at para. 3.c.14.

214 Memorandum, Captain David G. Balmer, Foreign Claims Judge Advocate, 1st Armored Division (Task Force Eagle), to Major Richard M. Whitaker,

Professor, International and Operational law, The Judge Advocate Generals School, subject: Suggested Improvements for Chapter 10 of Operational

Law Handbook (4 Dec. 1996) (Captain Balmer stated that the number of claims alleging environmental damage was fairly high, and very difficult to

adjudicate in the absence of photographs taken prior to the occupation of the area by U.S. forces. Captain Balmer also stated that such pictures

repeatedly saved the day when fraudulent claims were presented by local nationals).

Chapter 11

Environmental Law

210
agency for DOD with respect to Basel is the Defense Logistics Agency (DLA); and DLA hosted a conference in July

2000 on Overseas Hazardous Waste Disposal and Readiness: What Basel Means to DOD. Should your particular

operation involve potential Basel issues, you should contact the experts at DLA, particularly in their General Counsels

office.

When searching for applicable standards to apply to the seven elements expressed in Joint Publication 4-04, military

lawyers can direct their search to several readily available sources. First, they can review and consider familiar

environmental standards set out in Department of Defense directives and regulations. Second, they can consider the rules

and standards set out in the DoD Overseas Environmental Baseline Guidance Documents (OEBGD).215 Although baseline

documents are not technically applicable to overseas contingency operations where the United States presence is less than

permanent,216 they provide a solid starting point for the formulation of environmental standards.

In each of the operations described within this article, the measures established within a country-specific baseline

document were used (to varying extents) to develop the applicable environmental standards. For example, in Operation

Joint Endeavor, the Germany baseline document was integrated into the operation plan as a reference217 and as a source

of additional environmental standards, as [might be] deemed appropriate, in the interpretation or supplementation of the

plan.218

It is important to bear in mind, however, that country specific baseline documents do not control the conduct of

United States forces during a contingency operation. These guidelines are only used as a tool, providing lawyers and

other staff officers a starting point when dealing with host nation environmental issues.

A third source of guidance for the construction of a system of standards is the growing collection of after action

reports and operation plans and orders from recent operations. The plans from each of the foregoing operations would

each serve as excellent starting points.219 With each successive operation United States forces have become more expert

in their handling of the environmental dimension of overseas operations220

Command environmental standard operating procedure manuals, regulations, and instructions serve as the final

source of guidance.

215 Department of Defense Instruction 4715.5 requires that DoD components operating abroad develop country specific "final governing standards

(FGSs)). The OEBGD are issued to help in this task. The baseline consists of standards applicable to similar operations conducted in the United States.

The baseline is compared with existing host nation law. After consultation with the United States Diplomatic Mission in the host nation, the Executive

Agent for that country determines whether to apply the baseline standards, the host nation standards, or some hybrid of the two. See Dept of Defense,

Instruction 4715.5, Management of Environmental Compliance at Overseas Installations, para. C. (22 April 1996). A new version of the OEBGD was

issued on 15 March 2000 and is available on DENIX.

216 The OEBGD applies where EO 12,114 does not apply, . . . it establishes the environmental standards by which we run our installations overseas.

See Briefing Slides, Lieutenant Colonel Richard D. Rosen, Deputy Legal Counsel, Office of the Chairman of the Joint Chiefs of Staff, subject:

Combatant Commanders Environmental Responsibilities Overseas, slides 10-11 (Unpublished Slide Presentation, on file with author).

217 See Joint Endeavor Operation Plan, supra note 194, at 3.c.

218 Id. The general guidance placed in the plan stated that operations shall be conducted in a manner that exhibits leadership in the area of protection of

human health and the environment. Operations will be conducted with the effects on the environment considered to the extent feasible under the

existing conditions. Commanders will ensure potential harm to the environment is avoided or minimized when possible. The referenced OEBGD may

be used as a source for additional environmental standards, as deemed appropriate. Units will operate under their respective service environmental

procedures while ensuring compliance with the following minimum standards and mitigative measures. At this point the plan continues on with

additional standards and guidance.

219 The legal work done in regard to the environment during Operation Restore Hope was excellent. The work done during Operation Uphold

Democracy was even better, and the work already done and currently being done in Operation Joint Endeavor is better yet. These improvements are

largely because (1) judge advocates have done a superb job of documenting their lessons learned and (2) the service judge advocate generals corps have

made capturing lessons from recent operations a priority.

220 Interview, Lieutenant Colonel John M. McAdams, Jr., Judge Advocate Division (Code JAO), Headquarters, U.S. Marine Corps, in Charlottesville,

Virginia (27 Mar 1997) [hereinafter McAdams Interview] (Lieutenant Colonel McAdams served as the Joint Task Force Legal Advisor during

Operation Sea Signal and stated that environmental issues consumed an appreciable amount of his time. He believes that he profited from the legal

work done in Operation Restore Hope, and feels that United States Atlantic Command clearly profited from the lessons he and his staff learned during

Sea Signal. He stated that he saw the product of these lessons in the execution of Operation Uphold Democracy. Specifically, he cites the decision to

perform a more detailed environmental audit during Uphold Democracy, instead of the less detailed assessment performed during Sea Signal). Judge

advocates should also be aware that there is an ongoing initiative to prepare DoD environmental standards for contingency operations.

Chapter 11

Environmental Law

211
The Future and Changes in U.S. Policy and Law.. As mentioned at the beginning of this chapter, doctrine in the area

of environmental considerations in military operations has evolved quicker, and more clearly, than law and policy.

During the Clinton administration, a lot of effort was expended towards developing environmental policy for military

operations. This effort never bore final fruits. We will have to see what happens during the George W. Bush

administrationalthough this author believes chances are good that not much will develop on this front.

Finally, DoDI 4715.5, which requires FGSs (Final Governing Standards) be developed for each country, does not apply to

operations conducted off of overseas facilities/installations. Therefore, it does not apply during the temporary operations

characterized as MOOTW. However, at some point an operation that begins as an MOOTW might mature into a

permanent U.S. presence. This might trigger the Directives application. On this issue, you should contact the Unified

Command in charge of the operation.

Laws of Host Nations.

U.S. forces are immune from host nation laws where:

(1) Immunity is granted by agreement;

(2) U.S. forces engage in combat with national forces;221 or

(3) U.S. forces enter under the auspices of a UN sanctioned security enforcement mission.222

The question of immunity is unresolved where U.S. forces enter in a noncombat mode and not to enforce peace or

end cross-border aggression. In Operation RESTORE DEMOCRACY, U.S. forces entered as part of a multinational

force to protect human rights and restore democracy. There are three arguments as to why host nation environmental law

should not have applied:

(1) Consent to enter by a legitimate (recognized) government included an implied grant of immunity;223

(2) Law of the Flag applied, as it did during Operation PROVIDE COMFORT;

(3) Operation was sanctioned by the UN as a Chapter VII enforcement action (even though peace enforcement in

this context does not provide an exact fit).

Bottom Line. Judge advocates should contact the unified or major command to determine DoDs position relative to

whether any host nation law applies. Judge advocates should request copies of relevant treaties or international

agreements from the MACOM SJA or the unified command legal advisor. Finally, judge advocates should aggressively

seek information relative to any plan to contact foreign governments to discuss environmental agreements or issues. The

Army must consult with the Department of State before engaging in formal communications regarding the

environment.

224

Traditional Law of War (LOW).

221 This exception is based upon a classical application of the Law of the Flag theory. This term is sometimes referred to as "extraterritoriality," and

stands for the proposition that a foreign military force that enters a nation either through force or by consent is immune from the laws of the receiving

nation. The second prong of this theory (the implied waiver of jurisdiction by consenting to the entrance of a foreign force) has fallen into disfavor.

WILLIAM W. BISHOP, JR., INTERNATIONAL LAW CASES AND MATERIALS 659-661 (3d ed. 1962).

222 This theory is a variation of the combat exception. Operations that place a UN force into a hostile environment, with a mission that places it at odds

with the de facto government, triggers this exception. This is another of the very few examples where the Law of the Flag version of sovereign

immunity survives.

223 See DA PAM 27-161-1, Law of Peace, Volume I, para. 11-1 (1 Sep 1979).

224 See AR 200-2, supra note 176, at para. 8-3 c.

Chapter 11

Environmental Law

212
Although the LOW is technically not triggered until a state of armed conflict exists,225 many MOOTW require the

application of LOW principles as guidance.

226 The prudent judge advocate generally advises the application of LOW in

these operations because (1) to apply some other standard confuses troops that have been trained to the LOW standards

and (2) because the situation can quickly evolve into an armed conflict.

227 The entire body of LOW that impacts on the

treatment of the environment may be referred to as ELOW.

Customary Law. Although the environment was never considered during the evolution of customary international

law or during the negotiation of all of the pre-1970s LOW treaties, the basic LOW principles discussed in Chapter 2 of

this Handbook apply to limit the destruction of the environment during warfare. For example, the customary LOW

balancing of military necessity, proportionality, and superfluous injury and destruction apply to provide a threshold level

of protection for the environment.

Conventional Law. A number of the well-known LOW treaties have tremendous impact as ELOW treaties. These

treaties are discussed below.

Hague IV.

228 Hague IV (H.IV or HR) and the regulations attached to it represent the first time that ELOW principles

were codified into treaty law. The HR restated the customary principle that methods of warfare are not unlimited (serving

as the baseline statement for ELOW).229

Article 23e forbids the use or release of force calculated to cause unnecessary suffering or destruction. Judge

advocates should analyze the application of these principles to ELOW issues in the same manner they would address the

possible destruction or suffering associated with any other weapon use or targeting decision.

The HR also prohibits destruction or damage of property in the absence of military necessity.230 When

performing the analysis required for the foregoing test, the judge advocate should pay particular attention to (1) the

geographical extent (how widespread the damage will be) (2) the longevity, and the (3) severity of the damage upon the

target areas environment.

HR ELOW protections enjoy the widest spectrum of application of any of the ELOW conventions. They apply

to all property, wherever located, and by whomever owned.

The 1925 Gas Protocol.

231 The Gas Protocol bans the use of asphyxiating, poisonous, or other gases, and all

analogous liquids, materials, and devices.... during war. This treaty is an important component of ELOW because many

chemicals (especially herbicides) are extremely persistent, cause devastating damage to the environment, and even

demonstrate the ability to multiply their destructive force by working their way up the food chain. During the ratification

of the Gas Protocol, the U.S. reserved its right to use both herbicides and riot control agents (RCA).

232

225 The type of conflict contemplated by article 2, common to the four Geneva Conventions.

226 During most of Operation Provide Comfort and during all of Operation Restore Hope, the U.S. position was that the LOW was not triggered.

However, U.S. forces complied with the general tenets of the LOW. See DSAT, supra note 174, at Operational Law 15-16.

227 With regard to Operation Provide Comfort, the question of whether we were an occupying force remains open. The DSAT reported that we were not,

however in its report to Congress, DoD reported that we were occupants and were bound by the international law of occupation. This reinforces the

point that Judge Advocates should err, when possible, on applying the LOW standards to situations that are analogous to armed conflict, might become

armed conflict, or might be easily interpreted by others as armed conflict. DEPT OF DEFENSE, FINAL REPORT TO CONGRESS: CONDUCT OF THE

PERSIAN GULF WAR (April 1992).

228 Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 205 Consol. T.S. 277, including the

regulations thereto [hereinafter H.IV or H.R.].

229 Id. at art. 22.

230 Id. at art. 23g. Most nations and scholars agree that Iraq's release of oil into the Persian Gulf during its retreat from Kuwait, during Operation Desert

Storm violated this principle. Iraq failed to satisfy the traditional balancing test between military necessity, proportionality, and unnecessary

suffering/destruction.

231 The 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of

Warfare, June 17, 1925, 26 U.S.T. 571, T.I.A.S. No. 8061 [hereinafter Gas Protocol].

232 The U.S. position is that neither agent meets the definition of a chemical under the treaty's provisions.

Chapter 11

Environmental Law

213
The 1993 Chemical Weapons Convention (CWC).

233 The U.S. ratified the CWC on April 25, 1997. The CWC does

not supersede the Gas Protocol. Instead, it complements the Gas Protocol. Yet, wherever the CWC creates a more

rigorous rule, the CWC applies.234 EO 11850235 specifies U.S. policy relative to the use of chemicals, herbicides, and

RCA. EO 11850 sets out several clear rules regarding the CWC.236 As a general rule, the U.S. renounces the use of both

herbicides and RCA against combatants. As a matter of policy, herbicides and RCA may not be used in war in the

absence of national command authority (NCA) authorization. Finally, these restrictions do not apply relative to uses that

are not methods of warfare.

In regard to herbicides, the Order sets out the two uses that are expressly permitted, even without NCA

authorization. These two uses are (1) domestic use and (2) control of vegetation within and around the immediate

defensive perimeters

237 of U.S. installations.

1980 Conventional Weapons Convention (COWC). The U.S. ratified the COWC on 24 Mar 1995 (accepting only

Optional Protocols I and II of the three optional protocols). Only Optional Protocol II has ELOW significance because it

places restrictions on the use of mines, booby traps, and other devices. The ELOW significance of this treaty lies in the

fundamental right to a safe human environment. The COWC bans the indiscriminate use of these devices. Indiscriminate

is defined as use:

(1) which is not directed against a military objective, (2) which employs a method or means of delivery that

cannot be directed at a specific military objective, or (3) which may be expected to cause incidental loss of civilian life,

injury to civilian objects (which includes the environment), which would be excessive in relation to the concrete and

direct military advantage to be gained.

238

The Fourth Geneva Convention GC.

239 The GC is a powerful ELOW convention, but it does not have the wide

application enjoyed by the HR. The most important provision, article 53, protects only the environment of an occupied

territory. Article 53 prohibits the destruction or damage of property (which includes the environment) in the absence of

absolute military necessity. Article 147 provides the enforcement mechanism for the GC. Under its provisions

extensive damage or destruction of property, not justified by military necessity, is a grave breach of the conventions.

All other violations that do not rise to this level are lesser breaches (sometimes referred to as simple breaches).

The distinction between these two types of breaches is important. A grave breach requires parties to the

conventions to search out and then either prosecute or extradite persons suspected of committing a grave breach.240 A

simple breach only requires parties to take measures necessary for the suppression of the type of conduct that caused the

breach.241

233 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993,

32 I.L.M. 800 [hereinafter CWC].

234 Id. at Preamble.

235 Exec. Order No. 11850, 40 Fed. Reg. 16187 (1975), reprinted in FM 27-10, at C1-C2 [hereinafter EO 11850].

236 For a full discussion of EO 11850, see Chapter 2.

237 The depth of an "immediate defensive area" will be controlled by the type of terrain, foreseeable tactics of enemy forces, and weapons routinely used

in the area.

238 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Excessively Injurious of Have

Indiscriminate Effects, October 10, 1980, 19 I.L.M. 1525 [hereinafter COWC].

239 The Geneva Convention relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter

GC].

240 Id. at art. 146, cl. 2.

241 Id. at art. 146, cl. 3.

Chapter 11

Environmental Law

214
U.S. policy requires the prompt reporting and investigation of all alleged war crimes (including ELOW

violations) as well as appropriate disposition under the provisions of the UCMJ.242 These obligations make our own

soldiers vulnerable if they are not well trained relative to their responsibilities under ELOW provisions.

The ENMOD Convention.243 The U.S. negotiated the ENMOD Convention during the same period as it negotiated

Protocol I Additional to the Geneva Conventions, and ratified it in 1980. Unlike all the other ELOW treaties, which ban

the effect of various weapon systems upon the environment, the ENMOD Convention bans the manipulation or use of the

environment itself as a weapon. Any use or manipulation of the environment that is (1) widespread, (2) long lasting, or

(3) severe, violates the ENMOD (single element requirement).244 Another distinction between the ENMOD Convention

and other ELOW provisions is that it only prohibits environmental modifications which cause damage to another party to

the ENMOD Convention.

The application of the ENMOD is limited, as it only bans efforts to manipulate the environment with extremely

advanced technology. The simple diversion of a river, destruction of a dam, or even the release of millions of barrels of

oil do not constitute manipulation as contemplated under the provisions of the ENMOD. Instead, the technology must

alter the natural processes, dynamics, composition or structure of the earth.... Examples of this type of manipulation are

(1) alteration of atmospheric conditions to alter weather patterns, (2) earthquake modification, and (3) ocean current

modification (tidal waves etc.).

The drafters incorporated the distinction between high versus low technological modification into the ENMOD

to prevent the unrealistic extension of the ENMOD. For example, if the ENMOD reached low technological activities,

then such actions as cutting down trees to build a defensive position or an airfield, diverting water to create a barrier, or

bulldozing earth might all be considered activities that violate the ENMOD. Judge advocates should understand that none

of these activities, or similar low technological activities, is controlled by the ENMOD.

Finally, the ENMOD does not regulate the use of chemicals to destroy water supplies or poison the

atmosphere.245 As before, this is the application of a relatively low technology, which the ENMOD does not reach.

246

Although the relevance of the ENMOD Convention appears to be minimal given the current state of military technology,

judge advocates should become familiar with the basic tenets of the ENMOD. This degree of expertise is important

because some nations argue for a more pervasive application of this treaty. Judge Advocates serving as part of a

multinational force must be ready to provide advice relative to the ENMOD Convention, even if this advice amounts only

to an explanation as to why the ENMOD Convention has no application, despite the position of other coalition states.247

The 1977 Protocols Additional to the Geneva Conventions (GP I & GP II).248 The U.S. has not yet ratified GP I,

accordingly, the U.S. is ostensibly bound by only the provisions within GP I that reflect customary international law. To

some extent, GP I articles 35, 54, 55, and 56 (the environmental protection provisions within GP I) merely restate HR and

GC environmental protections. To this extent, these provisions are enforceable. However, the main focus of GP I

protections go far beyond the GC or the HR protections. GP I is much more specific relative to the declaration of these

242 Dept. of Defense, Dir. 5100.77, DoD Law of War Program, paras. C.3. & E.2.e.(2)-(3) (July 10, 1979); Dep't of Army, Field Manual 27-10, The Law

of Land Warfare, para. 507 (18 July 1956).

243 The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification techniques, May 18, 1977, 31 U.S.T. 333.

1108 U.N.T.S. 151 [hereinafter ENMOD Convention].

244 For a discussion of the meaning of these three elements see the discussion in the next section of similar elements found in articles 35 and 55 of the

1977 Protocol I Additional to the Geneva Conventions of 1949.

245 Although these type of activities would violate the HR and the Gas Protocol.

246 Environmental Modification Treaty: Hearings Before the Committee on Foreign Relations, U.S. Senate, 95th Cong., 2nd Sess. 83 (1978)

(Environmental Assessment) [hereinafter Senate Hearings].

247 AUSTRALIAN DEFENCE FORCE PUBLICATION 37, THE LAWS OF ARMED CONFLICT 4-5 to 4-6 (1994) [hereinafter ADFP 37]. ADFP 37 states that the

ENMOD Convention prohibits "any means or method of attack which is likely to cause widespread, long-term or severe damage to the natural

environment." This arguably gross overstatement of the actual limitations placed upon a commander by the ENMOD Convention ignores the "high

technology" requirement, and serves as an example of the type of misinformation that requires U.S. Judge Advocates to be conversant in treaties like the

ENMOD Convention.

248 Protocol I Additional to the Geneva Conventions, Dec. 12, 1977, 16 I.L.M. 1391, 1125 U.N.T.S. 3 [hereinafter GP I].

Chapter 11

Environmental Law

215
environmental protections. In fact, GP I is the first LOW treaty that specifically provides protections for the environment

by name.

The primary difference between GP I and the protections found with the HR or the GC is that once the degree of

damage to the environment reaches a certain level, GP I does not employ the traditional balancing of military necessity

against the quantum of expected destruction. Instead, it establishes this level as an absolute ceiling of permissible

destruction. Any act that exceeds that ceiling, despite the importance of the military mission or objective, is a violation of

ELOW.

This absolute standard is laid out in articles 35 and 55 as any method of warfare which is intended, or may be

expected, to cause widespread, long-term and severe damage to the environment. The individual meanings of the terms

widespread, long-term, and severe damage have been debated at length. The ceiling is only reached when all three

elements are satisfied (unlike the single element requirement of the ENMOD Convention).

Most experts and the Commentary to GP I state that long-term should be measured in decades (twenty to thirty

years). Although the other two terms remain largely subject to interpretation, a number of credible interpretations have

been forwarded.249 Within GP I, the term widespread probably means several hundred square kilometers, as it does in

the ENMOD Convention.250Severe can be explained by article 55s reference to any act that prejudices the health or

survival of the population.

251 Because the general protection found in articles 35 and 55 require the presence of all three

of these elements, the threshold is set very high.252 For instance, there is little doubt that the majority of carnage caused

during World Wars I and II (with the possible exception of the two nuclear devices exploded over Japan) would not have

met this threshold requirement.253

Specific GP I protections include article 55s absolute ban on reprisals against the environment; article 54s

absolute prohibition on the destruction of agricultural areas and other areas that are indispensable to the survival of the

civilian population; and article 56s absolute ban on targeting works or installations containing dangerous forces (damn,

dikes, nuclear plants) if such targeting would result in substantial harm to civilian persons or property.254

Although the foregoing protections are typically described as absolute, the protections do not apply in a

number of circumstances. For instance, agricultural areas or other food production centers used solely to supply the

enemy fighting force are not protected.255 A knowing violation of article 56 is a grave breach. Additionally, with respect

to the three element threshold set out in articles 35 and 55, the standard is so high that a violation of these provisions may

249 Claude Pilloud, International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12

August 1949, at 410 to 420 (Yves Sandoz ed., 1987) [hereinafter Sandoz].

250 Id. at 417. Sandoz cites to the Report of the Conference of the Committee on Disarmament, Vol. I, United Nations General Assembly, 31st session,

supplement No. 27 (A/31/27), p. 91, wherein the intent of the drafters of the ENMOD Convention relative to each of the three elements is set out as

follows:

(1) widespread: encompassing an area on the scale of several hundred kilometers;

(2) long-lasting: lasting for a period of several months, or approximately one season; and

(3) severe: involving serious or significant disruption or harm to human life, natural economic resources or other assets.

251 Id. at 417. The article 55 language has roughly the same meaning as the meaning of "severe" within the ENMOD Convention.

252 Although some experts have argued that this seemingly high threshold might not be as high as many assert. The "may be expected" language of

articles 35 and 55 appears to open the door to allegation of war crimes any time the damage to the environmental is substantial and receives ample

media coverage. The proponents of this complaint allege that this wording is far too vague and places unworkable and impractical requirements upon

the commander. G. Roberts, The New Rules for Waging War: The Case Against Ratification of Additional Protocol I, 26 V.J.I.L. 109, 146-47 (1985).

253 See Sandoz, supra note 249, at 417.

254 The specific protections afforded by articles 54, 55, and 56 should be applied in conjunction article 57's "precautionary measures" requirement. For

example, prior to initiating an artillery barrage, the commander must do everything "feasible" to ensure that no objects subject to special protections are

within the destructive range of the exploding projectiles (damn, dikes, nuclear power plants, drinking water installations, etc.).

255 However, if the food center is shared by both enemy military and the enemy civilian population (a likely situation), then article 54 permits no attack

that "may be expected to leave the civilian population with such inadequate food or water as to cause starvation or force its movement."

Chapter 11

Environmental Law

216
also be a grave breach, because the amount of damage required would seem to satisfy the extensive damage test set out

by GC article 147.256

Peacetime Environmental Law (PEL).

In cases not covered by the specific provisions of the LOW, civilians and combatants remain under the protection and

authority of principles of international law derived from established principles of humanity and from the dictates of public

conscience. This includes protections established by treaties and customary law that protect the environment during

periods of peace (if not abrogated by a condition of armed conflict).

257 In the aftermath of Operation DESERT STORM,

the international community generally accepted the application of the Martens clause as a useful contributor to the

protection of the environment in times of armed conflict.

258

CONCLUSION.

As the forgoing discussion indicates, the reality of the need to integrate environmental planning and stewardship into

all phases of overseas operations cannot be ignored. A number of other initiatives are now under way to incorporate an

increased awareness of the environment into both the planning and execution phases of all military operations and

activities. In fact, the Army Judge Advocate Generals Corps current version of its own keystone doctrinal source for

legal operations recognizes that environmental law considerations should play in the planning and execution of

operations.259

Judge advocates, as they have traditionally done, must continue to stay aware of changes in both doctrine and law in

this area. In the end, their advice must be based upon a complete understanding of the law, the clients mission, and

common sense. The purpose of this article is to help judge advocates from all services provide accurate, up to date, and

meaningful advice.

SUMMARIES OF SOME OF THE MAJOR DOMESTIC (U.S.) ENVIRONMENTAL LAWS

ANTARCTIC PROTECTION - 16 U.S.C. § 2461. This major legislation prohibits prospecting, exploration, and

development of Antarctic mineral resources by persons under the jurisdiction of the U.S..

THE CLEAN AIR ACT - - 42 U.S.C. §§ 7401-7671q (CAA §§ 101-618), which is broken down into six subchapters,

each of which outlines a particular strategy to control air pollution. Subchapter I: Control of criteria and hazardous

pollutants from stationary sources; and Enforcement of the Act; Subchapter II: Mobile Source Control; Subchapter III:

Administrative Provisions; Subchapter IV: Acid Rain Control; Subchapter V: Operating Permits; and, Subchapter VI:

Protection of Stratospheric Ozone.

DEEPWATER PORTS- 33 U.S.C. § 1501 INTERNATIONAL APPLICATION THROUGH 33 U.S.C. § 1510.

Regulates construction, ownership, and operation of deepwater ports beyond the territorial limits of the U.S., thereby

protecting indigenous marine life and the coastal environment.

THE FEDERAL WATER POLLUTION CONTROL ACT (CLEAN WATER ACT) 33 U.S.C. 1251-1387, as amended.

Controls domestic water pollution in the United States (primarily through the use of the National Pollution Discharge

Elimination System (NPDES)) and also regulates wetlands.

ENDANGERED SPECIES ACT OF 1973 - 16 U.S.C. §§ 1531-1544. The purpose of this Act is to protect threatened and

endangered fish, wildlife, and plant species and the critical habitat of such species.

256 Report of the Secretary-General on the Protection of the Environment in Times of Armed Conflict, U.N. GAOR, 6th Comm., 48th Sess., Agenda

Item 144, at 17, U.N. Doc. A/48/269 (29 July 1993) [hereinafter Secretary-General's Report]. The experts that compiled the Secretary General's report

felt that the GP I should be changed to make this point clear, that a violation of either article 35 or 55, at a minimum, is a grave breach.

257 See HR, supra note 228 at Preamble. This provision, commonly referred to as the Martens Clause makes peacetime law applicable to fill in gaps in

the LOW, where protection is needed to protected a certain person, place, or thing.

258 See SECRETARY-GENERAL REPORT, supra note 256, at 15.

259 FM 27-100, Legal Support to Operations, 3.6, (30 Sept. 1999).

Chapter 11

Environmental Law

217
FOREIGN ASSISTANCE - 22 U.S.C. § 2151p, ENVIRONMENTAL AND NATURAL RESOURCES. This subsection

of the Foreign Assistance Legislation requires environmental accounting procedures for projects that fall under the Act

and significantly affect the global commons or environment of any foreign country.

FOREIGN CLAIMS ACT - 10 U.S.C. § 2734. This major legislation prescribes the standards, procedures and amounts

payable for claims arising out of noncombat activities of the U.S. Armed Forces outside the U.S..

INTERNATIONAL AGREEMENTS CLAIMS ACT - 10 U.S.C. § 2734A. Regulates payment of claims by the U.S.,

where such claims are based on an international agreement applying to the U.S. Armed Forces and the civilian

component.

MARINE PROTECTION, RESEARCH AND SANCTUARIES ACT (72), as amended - 16 U.S.C. §§ 1401-1445

IMPLEMENTED THRU 33 U.S.C. § 1419. This major Federal legislation sets out the procedures for designation of

marine sanctuaries and the enforcement procedures for their protection. It also addresses the circumstance where this

legislation applies to non-citizens of the U.S..

MARINE MAMMAL PROTECTION- 16 U.S.C. § 1361 & 1378. This legislation establishes a moratorium on the taking

and importation of marine mammals and marine mammal products, during which time no permit may be issued for the

taking of any marine mammals nor may marine mammal products be imported into the U.S. without a permit.

NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) 42 U.S.C. §§4321-4370 (1969) Requires that the

environmental impacts be considered before any major federal action significantly affecting the quality of the human

environment is conducted.

NATIONAL HISTORIC PRESERVATION ACT - 16 U.S.C. § 470a - 2. This Act provides for the nomination,

identification (through listing on the National Register) and protection of historical and cultural properties of significance.

Specific procedures are established for compliance including rules for consulting the World Heritage List or equivalent

national register prior to approval of any OCONUS undertaking.

OCEAN DUMPING - 33 U.S.C. § 1401 THRU 1419. Regulates the dumping of any material into ocean waters, which

would adversely affect human health, welfare, amenities or the marine environment or its economic potential.

THE OIL POLLUTION ACT OF 1990 - 33 U.S.C. § 2701-2761. This is an Act to implement the provisions of the

International convention for the Prevention of the Pollution of the Sea by Oil, 1954. Specifically it implements the 1969

and 1971 amendment to the International convention; but, this Act is not in effect at present time.

PRE-COLUMBIAN MONUMENTS - P.L. 92-587, TITLE II - REGULATION OF IMPORTATION OF PRECOLUMBIAN MONUMENTAL OR ARCHITECTURAL SCULPTURE OR MURALS. This Public Law prohibits the

importation into the U.S. of pre-Columbian monumental or architectural sculptures or murals which are the product of

pre-Columbian Indian culture of Mexico, central America, South America, or the Caribbean Islands without a certificate

from the country of origin certifying that the exportation was not in violation of law.

ACT TO PREVENT POLLUTION FROM SHIPS, 33 U.S.C. § 1901. This Act provides the enabling legislation which

implements the protocol of 1978 relating to, the International Convention for the Prevention of Pollution From Ships,

1973. The protocol is specifically designed to decrease the potential for accidental oil spills and eliminate operational oil

discharges from ships at sea and in coastal waters. It contains many new requirements concerning the design,

construction, operation, inspection, and certification of new and existing ships. Specifically, it requires the installation of

oil-water separating equipment and oil content monitors in nearly all ships and prohibits the discharge of oil at sea.

RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) - 42 U.S.C. § 6938. Prohibits the export of

hazardous waste without the consent of the receiving country and notification to the appropriate U.S. authorities.

DEPARTMENT OF DEFENSE DIRECTIVES/INSTRUCTIONS

DoDD 6050.7, Environmental Effects Abroad of Major Department of Defense Actions, March 31, 1979.

Chapter 11

Environmental Law

218
DoDI 4715.5, Management of Environmental Compliance at Overseas Installations, April 22, 1996.

DoDI 4715.8, Environmental Remediation for DoD Activities Overseas, February 2, 1998.

ARMY REGULATIONS

AR 27-20 CHAPTER 10 - CLAIMS COGNIZABLE UNDER THE FOREIGN CLAIMS ACT (FCA). (a) This chapter

implements the FCA and authorizes the administrative settlement of claims of inhabitants of a foreign country, or a

foreign country or a political subdivision thereof; against the United States; for personal injury, or death or property

damages caused outside the U.S., its territories, commonwealths, or possessions; by military personnel or civilian

employees of the DA; or claims which arise incident to noncombat activities of the Army. (b) Claims resulting from the

activities, or caused by personnel of another military department, service, or agency of the U.S. may also be settled by

Army foreign claims commissions when authorized by this chapter. (c) Claims arising from acts or omissions of

employees of nonappropriated fund activities may also be settled by Army foreign claims commissions pursuant to this

chapter, otherwise applicable, but are payable from nonappropriated funds (chap. 12).

AR 200-1 ENVIRONMENTAL PROTECTION AND ENHANCEMENT (February 1997. Regulates compliance with

environmental standards set out in HN law or Status of Forces Agreements (SOFA) and supplies regulatory standards for

OCONUS commanders at locations where there is an absence of HN law or SOFA requirements.

AR 200-2 (Subpart H & G) - EFFECTS OF ARMY ACTIONS ABROAD. Appendix 6, requires that proposed actions

affecting global commons be subject to a documented decision making process. Global commons are areas outside

the jurisdiction of any nation, including such areas as the oceans and Antarctica. AR 200-2, Glossary.

Appendix H requires that proposed actions significantly harming the environment of a foreign nation or a protected

global resource also be subject to a documented decision making process.

AR 200-3 NATURAL RESOURCE MANAGEMENT. Deals with natural resources and the Armys endangered species

program.

AR 200-4 HISTORIC PRESERVATION. This regulation prescribes management responsibilities and standards for the

treatment of historic properties, including buildings, structures, objects, districts, sites, archaeological materials, and

landmarks, on land controlled or used by the Army. Outside the U.S., Department of Army activities will comply with:

(1) historic preservation requirement of the HN; (2) International and Status of Forces Agreements; (3) requirements for

protections of properties on the World Heritage List, and this regulation to the extent feasible..

NAVY REGULATIONS

260

NAVY OPNAVINST 5090.1B - NAVY PROGRAM FOR THE PROTECTION OF THE ENVIRONMENT AND

CONSERVATION OF NATURAL RESOURCES. This recently updated instruction contains guidance to deployed

commanders concerning the management of hazardous materials, the disposal of hazardous waste, and ocean dumping. It

also contains the Navys implementing guidance for Executive order 12,114 and DoD Directive 6050.7, and sets out the

factors that require environmental review for OCONUS actions.

MARINE CORPS ORDERS261

MARINE MCO P5090.2A - ENVIRONMENTAL COMPLIANCE AND PROTECTION MANUAL. This codification

of Marine Corps environmental policies and rules instructs the deployed commander to adhere to SOFA guidance and HN

laws that establish and implement HN pollution standards.

AIR FORCE INSTRUCTIONS

260 See Chapter 36 (Environmental Protection Overseas), NAVJUSTSCOL Envir. Law Deskbook (Rev.5/94); Sec. 1006 (Foreign Environmental Law),

JAGINST 5800.7C, JAGMAN, 3 Oct. 90; Art. 0939, U.S. Navy Reg, 1990.

261 See MCO P5090.2, Envir. Compliance and Protection Manual, 26 Sep 91.

Chapter 11

Environmental Law

219
AFI 32-7006 ENVIRONMENTAL PROGRAM IN FOREIGN COUNTRIES (29 April 1994).

AFI 32-7061 THE ENVIRONMENTAL IMPACT ANALYSIS PROCESS (24 January 1995).(EIAP) OVERSEAS. This

regulation is the Air Forces implementing guidance for Executive Order 12,114 and DoD Directive 6050.7. It sets out

service activities that require environmental documentation and the type of documentation required.

Chapter 11

Environmental Law

220
CHAPTER 12

FISCAL LAW

REFERENCES:

1. Contract & Fiscal Law Department, TJAGSA, Fiscal Law Deskbook.

2. The Honorable Bill Alexander, B-213137, Jan. 30, 1986 (unpublished).

3. The Honorable Bill Alexander, B-213137, 63 Comp. Gen. 422 (1984) (Honduras).

4. DoD Directive 7201.01, Official Representation Funds (Aug. 15, 1999).

5. Dept of Army Reg. 37-47, Representation Funds of the Secretary of the Army (May 31,

1996).

6. DoD Directive 7280.4, Commander in Chiefs Initiative Fund (Oct. 26, 1993).

7. CJCSI 7401.01A, CINC Initiatives Fund (Jan. 30, 1999).

8. The Honorable Michael B. Donley, B-234326.15, Dec. 24, 1991 (unpublished).

9. DoD Directive 2205.2, Humanitarian and Civic Assistance Provided in Conjunction with

Military Operations (Oct. 6, 1994).

10. DoD Instruction 2205.3, Implementing Procedures for the Humanitarian and Civic

Assistance Program (Jan. 27, 1995).

The application of fiscal principles often appears counterintuitive. Because Congress provides appropriations for

military programs, and military departments in turn allocate funds to commands, commanders may wonder why legal

advisors scrutinize the fiscal aspects of mission execution so closely, even though expenditures or tasks are not prohibited

specifically. Similarly, JTF staff members managing a peacekeeping operation may not appreciate readily the subtle

differences between operational necessity and mission creep; nation building and humanitarian and civic assistance; or

construction, maintenance, and repair. Deployed judge advocates often find themselves immersed in such issues. When

this occurs, they must find affirmative fiscal authority for a course of action, suggest alternative means for accomplishing

a task, or counsel against the proposed use of appropriated funds, personnel, or assets. To aid legal advisors in this

endeavor, this chapter affords a basic, quick reference to common authorities. Because fiscal matters are so highly

legislated, regulated, audited, and disputed, however, it is not a substitute for thorough research and sound application of

the law to specific facts.

The principles of federal appropriations law permeate all federal activity, both within the United States, as well as

overseas. Thus, there are few contingency exceptions to the fiscal principles discussed throughout this chapter. The

statutes, regulations, case law, and policy applicable at Fort Drum, for example, likely will control operations in Bosnia,

Nicaragua, or Hungary. Fiscal issues arise frequently during drug interdiction, humanitarian and civic assistance, security

assistance, disaster relief, and peacekeeping operations. Failure to understand fiscal nuances may lead to the improper

expenditure of funds and administrative and/or criminal sanctions against those responsible for funding violations.

Moreover, early and continuous judge advocate involvement in mission planning and execution is essential. Judge

Advocates who participate actively will have a clearer view of the commands activities and an understanding of what

type of appropriated funds, if any, are available for a particular need.

Under the Constitution, Congress raises revenue and appropriates funds for federal agency operations and programs.

See U.S. Const., art. I, § 8. Courts interpret this constitutional authority to mean that Executive Branch officials, e.g.,

commanders and staff members, must find affirmative authority for the obligation and expenditure of appropriated funds.

262 See, e.g., U.S. v. MacCollom, 426 U.S. 317, at 321 (1976) (The established rule is that the expenditure of public

funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by

262 An obligation arises when the government incurs a legal liability to pay for its requirements, e.g., supplies, services, or construction. For example, a

contract award normally triggers a fiscal obligation. Commands also incur obligations when they obtain goods and services from other U.S. agencies or

a host nation. An expenditure is an outlay of funds to satisfy a legal obligation. Both obligations and expenditures are critical fiscal events.

Chapter 12

Fiscal Law

221
Congress.) Likewise, in many cases, Congress has limited the ability of the Executive to obligate and expend funds, in

annual authorization or appropriations acts or in permanent legislation.

Legal advisors should consider several sources that define fund obligation and expenditure authority: (1) Title 10,

U.S. Code; (2) Title 22, U.S. Code; (3) Title 31, U.S. Code; (4) DoD authorization acts; (5) DoD appropriations acts; (6)

agency regulations; and (7) Comptroller General decisions. Without a clear statement of positive legal authority, the legal

advisor should be prepared to articulate a rationale for an expenditure which is necessary and incident to an existing

authority.

BASIC FISCAL CONTROLS263

Congress imposes fiscal controls through three basic mechanisms. Each is implemented by one or more statutes.

The U.S. Comptroller General, who heads the General Accounting Office (GAO), audits executive agency accounts

regularly and scrutinizes compliance with the fund control statues and regulations. The three basic fiscal controls are:

(1) Obligations and expenditures must be for a proper purpose;

(2) Obligations must occur within the time limits applicable to the appropriation (e.g., operation and maintenance

(O&M) funds are available for obligation for one fiscal year); and

(3) Obligations must be within the amounts authorized by Congress.

The enforcement mechanism for these controls is the Antideficiency Act (ADA). See 31 U.S.C. § 1341(a), 1517.

The ADA prohibits any government officer or employee from making or authorizing an expenditure in excess of the

amount available in an appropriation; incurring an obligation in advance of an appropriation, except as authorized by law;

or making or incurring obligations in excess of formal subdivisions of funds within the executive branch, or in excess of

amounts prescribed by regulations governing the formal subdivisions of funds. Penalties for violations may be criminal

or civil. 31 U.S.C. § 1349, 1350. Commanders must investigate suspected violations to establish responsibility and

discipline violators. DoD 7000.14-R, Financial Management Regulation, Vol. 14. [hereinafter DoD 7000.14-R].

THE PURPOSE STATUTEGENERALLY

Although each fiscal control is key, the purpose control is most likely to become an issue during military

operations. The Purpose Statute provides that [a]ppropriations shall be applied only to the objects for which the

appropriations were made except as otherwise provided by law. See 31 U.S.C. § 1301(a). Thus, expenditures must be

authorized by law (permanent legislation or annual appropriations act) or be reasonably related to the purpose of an

appropriation. Judge advocates should ensure, therefore, that:

(1) An expenditure fits an appropriation (or permanent statutory provision) or is for a purpose that is necessary and

incident to the general purpose of an appropriation.

(2) The expenditure is not prohibited by law.

(3) The expenditure is not provided for otherwise, i.e., it does not fall within the scope of some other appropriation.

See, e.g., The Honorable Bill Alexander, B-213137, Jan. 30, 1986 (unpub.) [hereinafter Honduras II] (concluding that

the Purpose Statute applies to OCONUS military exercises); The Honorable Bill Alexander, B-213137, 63 Comp. Gen.

422 (1984) [hereinafter Honduras I]; Secretary of the Interior, B-120676, 34 Comp. Gen. 195 (1954).

Augmentation of Appropriations and Miscellaneous Receipts

263 For a more in-depth review of fiscal law issues, See, CONTRACT & FISCAL L. DEPT, THE JUDGE ADVOCATE GENERALS SCHOOL, U.S. ARMY,

FISCAL LAW COURSE DESKBOOK, current edition. Available at: http://jagcnet.army.mil/ContractLaw, (registration & password required) and

http://www.jagcnet.army.mil/TJAGSA. (No password or registration required.)

Chapter 12

Fiscal Law

222
A corollary to the Purpose control is the prohibition against augmentation. See Nonreimbursable Transfer of Admin.

Law Judges, B-221585, 65 Comp. Gen. 635 (1986); cf. 31 U.S.C. § 1532 (prohibiting transfers from one appropriation to

another except as authorized by law). Appropriated funds designated for a general purpose may not be used for another

purpose for which Congress has appropriated other funds. Secretary of the Navy, B-13468, 20 Comp. Gen. 272 (1940).

If two funds are equally available for a given purpose, an agency may elect to use either, but once the election is made,

the agency must continue to charge the same fund. See, Funding for Army Repair Projects, B-272191, Nov. 4, 1997. The

election is binding even after the chosen appropriation is exhausted. Honorable Clarence Cannon, B-139510, May 13,

1959 (unpub.) (Rivers and Harbors Appropriation exhausted; Shipbuilding and Conversion, Navy, unavailable to dredge

channel to shipyard).

Thus, if an agency retains funds from a source outside the normal fund distribution process, an augmentation occurs

and the Miscellaneous Receipts Statute is violated. See 31 U.S.C. § 3302(b); see also Interest Earned on Unauthorized

Loans of Fed. Grant Funds, B-246502, 71 Comp. Gen. 387 (1992). When the retained funds are expended, this generally

violates the constitutional requirement for an appropriation. See Use of Appropriated Funds by Air Force to Provide

Support for Child Care Centers for Children of Civilian Employees, B-222989, 67 Comp. Gen. 443 (1988); Bureau of

Alcohol, Tobacco, and Firearms--Augmentation of Appropriations--Replacement of Autos by Negligent Third Parties, B226004, 67 Comp. Gen. 510 (1988).

There are, however, several statutory exceptions to the augmentation prohibition. For example, DoD may expend

O&M funds for humanitarian assistance efforts that complement (but do not duplicate) activities funded by the

appropriations of other agencies, such as the State Department. See 10 U.S.C. § 401.

There also are intra- and intergovernmental acquisition authorities that allow augmentation or retention of funds from

other sources. See, e.g., Economy Act, 31 U.S.C. § 1535; Foreign Assistance Act (FAA), 22 U.S.C. § 2344, 2360, 2392

(permitting foreign assistance accounts to be transferred and merged); 22 U.S.C. § 2318 (emergency Presidential draw

down authority). The Economy Act authorizes a federal agency to order supplies or services from another agency. For

these transactions, the requesting agency must reimburse the performing agency fully for the direct and indirect costs of

providing the goods and services. See Washington Natl Airport; Fed. Aviation Admin., B-136318, 57 Comp. Gen. 674

(1978) (depreciation and interest); Obligation of Funds Under Mil. Interdeptal Purchase Requests, B-196404, 59 Comp.

Gen. 563 (1980); see also DoD 7000.14-R, vol. 11A, ch. 1, para. 010201.J. (waiving overhead for transactions within

DoD). Consult agency regulations for order approval requirements. See, e.g., Federal Acquisition Regulation Subpart

17.5; Defense Federal Acquisition Regulation Subpart 217.5; Army Federal Acquisition Regulation Supplement Subpart

17.5. Congress also has authorized certain expenditures for military support to civil law enforcement agencies (CLEAs)

in counterdrug operations. See Chapter 19 for a more complete review. Support to CLEAs is reimbursable unless it

occurs during normal training and results in DoD receiving a benefit substantially equivalent to that which otherwise

would be obtained from routine training or operations. See 10 U.S.C. § 377. Another statutory provision authorizes

operations or training to be conducted for the sole purpose of providing CLEAs with specific categories of support. See

§1004 of the 1991 Defense Authorization Act, codified at 10 U.S.C. § 374, note. In 10 U.S.C. § 124, Congress assigned

DoD the operational mission of detecting and monitoring international drug traffic (a traditional CLEA function). By

authorizing DoD support to CLEAs at essentially no cost, Congress has authorized augmentation of CLEA

appropriations.

Other statutes that permit DoD to accomplish missions assigned primarily to other executive departments (nontraditional DoD missions) include: 10 U.S.C. § 402 (transportation of humanitarian supplies), 10 U.S.C. § 404 (foreign

disaster or refugee relief), and 10 U.S.C. § 2551 (other humanitarian support). These purposes also are met through

foreign assistance appropriations, which are generally administered by the State Department. See Chapter 14 for further

discussion of these authorities.

DoD Appropriations and Their Purposes

Operation & Maintenance (O&M) Appropriations. These appropriations are for day-to-day expenses of DoD

components in garrison and during exercises, deployments, and military operations. Commands may use O&M

appropriations for all necessary and incident operational expenses. They are subject, however, to specific statutory

limitations. For example, end items costing $100,000 or more, or which are centrally managed, may not be purchased

with these funds. See DoD 7000.14-R, vol. 2A, ch. 1, para. 0102; and DFAS Manual 37-100-XX (XX= current FY).

Additionally, exercise-related construction of permanent facilities during exercises coordinated or directed by the Joint

Chapter 12

Fiscal Law

223
Chiefs of Staff outside the United States, or any construction in excess of $500,000, may not be funded with O&M

appropriations. See 10 U.S.C. § 2805; but see Military Construction (MILCON) -- A Special Problem Area, infra,

(discussing expanded use of O&M for construction necessary to meet temporary operational needs during combat or

declared contingencies).

Military Construction (MILCON) Appropriations. Congress scrutinizes military construction closely. In fact, 41

U.S.C. § 12 provides that no public contract relating to erection, repair, or improvements of public buildings shall bind

the Government for funds in excess of the amount specifically appropriated for that purpose. Thus, construction projects

in excess of $1.5 million require specific approval by Congress. While not requiring specific line-item approval,

projects between $500,000 and $1.5 million are limited to amounts provided in the Unspecified Minor Military

Construction (UMMC) appropriations within the MILCON appropriation.

Procurement Appropriations. These appropriations fund purchases of investment end items (or systems) that cost

$100,000 or more and items that are centrally managed, regardless of cost.

Additional Appropriations. DoD has available to it other appropriations and support authorities. These include funds

and authority under the Foreign Assistance Act (FAA), the Acquisition and Cross-Servicing statute, and the Overseas

Humanitarian, Disaster, and Civic Aid appropriations. These are detailed below.

THE PURPOSE STATUTESPECIFIC MILITARY OPERATIONAL ISSUES

Judge advocates enhance mission success by guiding the staff and commander to the appropriate fiscal authority.

The following method of analysis will help the attorney, operator, comptroller, and logistician formulate a course of

action for the commander:

(1) Determine the commanders intent;

(2) Define the mission (both the organizations assigned mission and the specific task to be performed);

(3) Divide it into discrete parts (specified and implied tasks);

(4) Find legislative or regulatory authority and determine the proper fund type;

(5) Articulate a sound rationale for the specific expenditures; and

(6) Seek approval/guidance from higher headquarters, if necessary.

On occasion, it may be necessary to review an appropriation or permanent statutory provision to determine

Congressional intent. For proposed expenditures that are non-routine or unique in nature, a clear, written rationale

explaining why the use of funds is proper is essential. Again, if the issues are particularly problematic, seek assistance

from higher headquarters.

O&M AppropriationsUse During Deployments and Contingency Operations

Deploying units normally use generic O&M funds to support their operations. Operation and maintenance

appropriations pay for the day-to-day expenses of training, exercises, contingency missions, and other deployments.

Examples of O&M expenses include force protection measures, sustainment costs, and repair of main supply routes.

Likewise, expenses that are necessary and incident to an assigned military mission (e.g., costs of maintaining public

order and emergency health and safety requirements of the populace in Haiti during the NCA-directed mission of

establishing a secure and stable environment). Beware of mission creep, however. Where the military mission departs

from security, combat, or combat-related activity, and begins to intersect other agencies authority/appropriations, the

expenditure bears close scrutiny by the judge advocate. For example, commanders must have special authorization before

engaging in nation-building activities or recurring refugee assistance. These activities normally fall within the category

of foreign assistance functions administered by the State Department or U.S. Agency for International Development

(USAID).

Chapter 12

Fiscal Law

224
Congress also appropriates funds to be used only for specific purposes. For example, the O&M title of the

appropriations act includes funding for humanitarian assistance authorized under various Title 10 provisions. See, e.g.,

Department of Defense Appropriations Act, 2001, Pub. L. No. 106-259, 114 Stat. at 656 (2000) (providing $55.9 million

for Overseas Humanitarian, Disaster, and Civic Aid available during FYs 2001-2002). Such earmarked appropriations

require separate fiscal accounting. Generally, DoD may not use generic O&M appropriations for the same purposes as

funds earmarked for specific purposes within an appropriations act. For example, a commander would not use generic

O&M to purchase a memento or gift for the mayor of Tuzla. Official representation funds, however, would be available

for this purpose. See following discussion and regulations cited.

Emergency and Extraordinary (E&E) Expenses Funds (10 U.S.C. § 127) are special funds within the O&M

appropriation. The secretaries of the military departments and the SECDEF may expend these funds without regard to

other provisions of law. These funds are very limited in amount, however, and regulatory controls apply to prevent abuse,

including congressional notification requirements for expenditures over $500,000. See DoD Dir. 7201.01, OFFICIAL

REPRESENTATIONAL FUNDS (Aug. 15 1999); DEPT OF ARMY, REG. 37-47, REPRESENTATION FUNDS OF THE SECRETARY OF

THE ARMY, (May 31, 1996); and, DEPT OF ARMY, REG. 195-4, USE OF CONTINGENCY LIMITATION .0015 FUNDS FOR

CRIMINAL INVESTIGATIVE ACTIVITIES (15 APR 1983). Note: The Armys Deputy General Counsel, Ethics and Fiscal, has

opined that generic O&M funds are available to acquire weapons from indigenous or opposing forces under a cash-forweapons program. Thus, commanders need not expend E&E funds for this purpose.

Contingency Operations Funding Authority 10 U.S.C. § 127(a) (amended by DoD Authorization Act for FY 1996,

Pub. L. No. 104-106, § 1003 (1996)). This authority applies to deployments (other than for training) and humanitarian

assistance, disaster relief, or support to law enforcement operations (including immigration control) for which funds have

not been provided, which are expected to exceed $50M, or the incremental costs of which, when added to other

operations currently ongoing, are expected to result in a cumulative incremental cost in excess of $100M. Does not apply

to operations with incremental costs not expected to exceed $10M. The authority provides for the waiver of Working

Capital Fund (WCF) Reimbursements. Units participating in applicable operations receiving services from WCF

activities may not be required to reimburse for the incremental costs incurred in providing such services. Statute restricts

SECDEF authority to reimburse WCF activities from O&M accounts. (In addition, if any activity director determines

that absorbing these costs could cause an Anti-Deficiency Act violation, reimbursement is required.) The statute

authorizes SECDEF to transfer up to $200M in any fiscal year to reimburse accounts used to fund operation for

incremental expenses incurred. Statute contains provisions for both Congressional notification & GAO compliance

reviews.

Section 8070 Notification. DoD Appropriations Act for FY 2001, Pub. L. No. 106-259, § 8070 (2000). Requires

DoD to notify the Congressional appropriations, defense, and international relations committees 15 days before

transferring to another nation or international organization any defense articles or services (other than intelligence

services) in conjunction with (a) peace operations under chapters VI or VII of the UN charter or (b) any other

international peacekeeping, peace-enforcement, or humanitarian assistance operation. See also, DoD Appropriations Act

for FY 96, Pub. L. 104-61 § 8117 (1995). The notice required includes: a description of the articles or services to be

transferred; the value of the articles or services; and with respect to a proposed transfer of supplies and equipment, a

statement of whether the inventory requirements of all elements of the armed forces (including the Reserve Components)

for the types of articles and supplies to be transferred have been met; and whether the items to be provided will have to be

replaced and how the President proposes to pay for such replacement. Section 8117 of the DoD Appropriations Act for

FY 1996 was originally part of the House DoD Appropriations Bill (H.R. 2126) which was adopted in the first

Conference without comment. The House Appropriations Committee expressed concern about the diversion of DoD

resources to non-traditional operations, such as Haiti, Guantanamo, Rwanda, and the former Yugoslavia. The

Committee stated that Congress must be kept fully aware of the use and involvement of defense assets in essentially nondefense activities in support of foreign policy. H.R. Rep. No. 208, 104th Cong., 1

st Sess. 12 (1995). In acquiescing in

the Appropriations Act, the President expressed concern about section 8117 and pledged to interpret it consistent with

constitutional authority to conduct foreign relations and as Commander in Chief. Statement by the President (Nov. 30,

1995).

CINC Initiative Funds (CIF) (10 U.S.C. § 166a) are O&M funds available for special training, humanitarian and civic

assistance, incremental costs of third country participation in a combined exercise, and operations that are unforeseen

contingency requirements critical to CINC joint warfighting readiness and national security interests. See CJCSI

7401.01A (30 Jan 1999) (detailing procedures for CJCS approval of these expenditures). The CINCs also receive O&M

Chapter 12

Fiscal Law

225
funding through the service component commands for Traditional CINC Activities (TCA), like military-to-military

contacts, combined training, and regional conferences. See also discussion in Chapter 14 on CIF and TCA.

Military Construction (MILCON) -- A Special Problem Area.

Military construction, as defined in 10 U.S.C. § 2801 and AR 415-15, includes any construction, development,

conversion, or extension carried out with respect to a military installation. The definition of a military installation is very

broad and includes foreign real estate under the operational control of the U.S. military. Military construction includes all

work necessary to produce a complete and usable facility or a complete and usable improvement to an existing facility.

See The Honorable Michael B. Donley, B-234326.15, Dec. 24, 1991 (unpub.) (prohibiting project splitting to avoid

statutory thresholds). As defined further in AR 415-15, Glossary, sec. II, Terms, construction includes:

(1) The erection, installation, or assembly of a new facility.

(2) Change to a real property facility, such as addition, expansion, or extension of the facility, which adds to its

overall external dimensions.

(3) Acquisition of a existing facility, or work on an existing facility that improves its functions or enables it to

fulfill changed requirements. Such work is often called an alteration of the facility. This includes installation of

equipment made a part of the existing facility.

(4) Conversion of the interior or exterior arrangements of a facility so that the facility can be used for a new purpose.

This includes installation of equipment made a part of the existing facility.

(5) Replacement of a real property facility, which is a complete rebuild of a facility that has been destroyed or

damaged beyond economical repair.

(6) Relocation of a facility from one installation to another and from one site to another.

Construction also includes the cost of installed equipment made part of a new or existing facility, related site

preparation, excavation, filling, landscaping, or other land improvements.

Maintenance and Repair Are Not Construction.

Maintenance is recurring work to prevent deterioration; i.e., work required to preserve or maintain a facility in such

condition so it is usable for its designated purpose. AR 420-10, Management of Installation Directorates of Public

Works, Glossary, Sec. II, Terms (15 April 1997).

Repair is restoration of a facility, so it may be used for its designated purpose, by overhauling, reprocessing, or

replacing parts or materials that have deteriorated by action of the elements or by wear and tear in use, and which have

not been corrected through maintenance. When repairing a facility, its components may be repaired by replacement, and

the replacement can be up to current standards or codes. See Memorandum, Deputy Comptroller, Office of the Under

Secretary of Defense (Program/Budget), subject: Definition for Maintenance and Repair (2 July 1997). The Army

requires that a facility or component of a facility be in a failed or failing condition to qualify as a repair project. See

Memorandum, Assistant Chief of Staff for Installation Management, subject: New Definition of Repair (4 Aug. 1997).

When construction and maintenance or repair are performed together as an integrated project, each type of work is

funded separately, unless the work is so integrated that separation of construction from maintenance or repair is not

possible. In the latter case, fund all work as construction. AR 420-10, Glossary, Sec. II, Terms.

Construction Using O&M Funds.

Deployed commands normally receive only O&M-type funds. (In this context, the O&M may be from a

humanitarian or foreign disaster assistance appropriation, but it is used as a generic O&M fund would be, i.e., to conduct

the specified operation.)

Chapter 12

Fiscal Law

226
(1) 10 U.S.C. § 2805(c) authorizes the use of O&M funds for unspecified minor military construction up to

$500,000 per project. Thus, as a matter of DoD policy, commanders must use O&M for these undertakings. See AR 415-

15 (4 Sep. 1998); DA Pam 420-11 (7 Oct 1994). Again, however, an exception to this rule is that commanders must use

MMC funds, not O&M, for all permanent construction during OCONUS CJCS exercises. See 10 U.S.C. § 2805(c)(2).

DoD also must notify Congress if commanders intend to undertake construction (temporary or permanent) during any

exercise, and the cost of the construction is expected to exceed $100,000. See Military Construction Appropriation Act,

2001, Pub. L. No. 106-246, § 113, 114 Stat. 511 (2000).

(2) Only funded costs count against the $500,000 O&M threshold. Funded costs are the out-of-pocket expenses

of a project, such as contract costs, TDY costs, materials, etc. It does not include the salaries of military personnel,

equipment depreciation, and similar sunk costs. The cost of fuel used to operate equipment is a funded cost.

Segregable maintenance and repair costs are not funded costs. See DA Pam 420-11, Glossary.

Methodology for analyzing minor construction issues:

- Define the scope of the project;

- Classify the work as construction, repair, or maintenance;

- Determine the funded cost of the project; and

- Select the proper appropriation.

Construction Using O&M Funds During Combat or Declared Contingency Operations.

Per Army policy, use of O&M funds in excess of the $500,000 threshold discussed above is proper when erecting

structures/facilities during combat or contingency operations declared per 10 U.S.C. § 101(a)(13)(A). See, Memorandum,

Deputy General Counsel (Ethics & Fiscal), Office of the General Counsel, Department of the Army, Subject:

Construction of Contingency Facility Requirements (22 Feb. 2000). This policy applies only if the construction is

intended to meet a temporary operational need that facilitates combat or contingency operations. The basis for this

opinion is that O&M funds are the primary funding source supporting contingency or combat operations; therefore, if a

unit is fulfilling legitimate requirements necessitated only by those operations, then O&M appropriations are proper. See

TJAGSA Practice Notes, Contract Law Note: Funding Issues in Operational Settings, ARMY LAW., Oct. 1993, at 38.

Whether combat or contingency operation construction is temporary depends on the duration and purpose of a facilitys

use by U.S. forces, not on the materials used in the construction. Coordinate with higher headquarters before relying on

the temporary operational need justification.

The Unspecified Minor MILCON Program. Normal construction funding rules apply when the aforementioned

conditions are not met, including the funding of construction for which the United States would have a follow-on or

contingency use after the termination of military operations necessitating the construction. Thus, assuming the funded

costs of a construction project exceed $500,000, commanders must seek special funding and approval to proceed. One

alternative is to obtain Unspecified Minor Military Construction (UMMC) funds. Under this program, Congress funds

minor military construction projects with estimated costs between $500,000 and $1.5 million (up to $3 million if the

project is intended to correct a deficiency that is life, health, or safety threatening).

Commanders also must use UMMC funds for all permanent construction during CJCS-coordinated or directed

OCONUS exercises. See 10 U.S.C. § 2805(c)(2). The authority for exercise-related construction is limited to no more

than $5 million per military department per fiscal year. 10 U.S.C. § 2805(c)(2). This limitation does not affect funding of

minor and truly temporary structures such as tent platforms, field latrines, shelters, and range targets that are removed

completely once the exercise is completed. Units may use O&M funds for these temporary requirements. Again,

however, congressional notification is required for any construction in excess of $100,000. See Military Construction

Appropriation Act, 2000, Pub. L. No. 106-52, § 113, 113 Stat. 264 (1999).

Examples.

Chapter 12

Fiscal Law

227
1. An Army unit deploys to central Europe at the request of a newly-elected democratic government and uses a

former Soviet installation as a base. A large multi-story barracks facility is proposed for conversion to an administration

facility. The Division Engineer advises the work will include: (a) replacing the roof, the flooring, several interior walls,

and the heating system ($1.1 million); (b) repairing numerous other failing components of the building ($450,000); (c)

installing new air-conditioning ($150,000); and (d) constructing new walls to accommodate the new configuration

($100,000). The Division Engineer proposes to classify the project work as mostly repair work, with a small amount of

new construction. The total funded cost of the project is estimated to be $1.8 million. Because the air-conditioner and

new walls will cost only $250,000, the Division Engineer contends that the entire project can be approved locally and

funded with O&M. Is the Division Engineer right? No. A conversion is construction by definition. All work is required

for the conversion of this building to an administrative facility, so it must all be funded as construction (use MILCON

money because the cost exceeds $1.5 million). If U.S. forces were to continue using the facility as a barracks, then the

air-conditioning and new walls could be segregated from the other (repair) efforts, and all work could be funded with

O&M money. [Note: Although the repair work may be physically divisible from the conversion, consider the repair costs

in this case to be funded costs of the conversion project if the repair work would not have been done, but for the need

for the conversion.]

2. The road to the same units fuel supply point needs immediate repair. The divisions optempo increased

substantially in the past few weeks, so the road has been used more and by vehicles heavier than it was designed to

handle. Delivery trucks used by the fuel supplier have been breaking up the road. The Division Engineer believes that, in

addition to filling potholes, two inches of asphalt must be added to support the increased and heavier traffic. The

sustainment contractor estimates costs of $530,000 to fill the holes and add two inches of asphalt. The Division Engineer

insists that O&M funds may be used. Is the Engineer correct? Maybe. Filling the potholes is clearly a repair, and this

cost does not count against the cost of the construction effort. Resurfacing the road may be a repair if the resurfacing is

intended to restore the road to its former capacity, not to improve it for heavier use, and if this is the method normally

used to maintain and/or repair roads of this type. To the extent it upgrades the road, however, it may be construction,

particularly considering the fact that the exterior dimensions of the road will change (two inches thicker). The cost of this

portion of the work may be less than $500,000 (if the potholes cost more than $30,000 to repair), however, so O&M

funds may be appropriate for this work even if it is considered construction. Likewise, use of O&M funds would be

proper for the entire project if the work was necessary to meet a temporary operational need during combat or declared

contingency operations. See Construction Using O&M Funds During Combat or Declared Contingency Operations,

above.

Emergency Construction Authority.

Upon a presidential declaration of national emergency, 10 U.S.C. § 2808 permits the Secretary of Defense to

undertake construction projects not otherwise authorized by law that are necessary to support the armed forces. These

projects are funded with any unobligated military construction and family housing appropriations. On 14 November

1990, President Bush invoked this authority in support of Operation Desert Shield. See Executive Order 12734, Nov. 14,

1990, 55 Fed. Reg. 48099. Other emergency construction authorities available under existing law include:

Emergency Construction, 10 U.S.C. § 2803. Limitations: (1) determination that project is vital to national defense;

(2) a 21-day congressional notice and wait period; (3) $30 million cap per fiscal year; and (4) funds must come from

reprogrammed, unobligated military construction appropriations.

Contingency Construction, 10 U.S.C. § 2804. Limitations similar to those under 10 U.S.C. § 2803 apply.

Contacts and Exercises with Foreign Militaries

Congress has provided ample authority for bilateral and multilateral contacts with foreign militaries. These

authorities are the heart of the current Partnership for Peace (PFP) program, as well as many other joint training, militaryto-military contact, and exercise programs. These authorities fund U.S. costs of preparing and conducting combined

training, as well as paying selected incremental costs for our training partners. [See also Chapter 14, Security Assistance]

Bilateral and Multilateral Contacts.

Chapter 12

Fiscal Law

228
5 U.S.C. § 4109-4110; 31 U.S.C. § 1345(1); 37 U.S.C. § 412 (Travel). Travel to conferences and site visits are

supported with a variety of statutory authorities.264 U.S. civilian employees and military personnel are authorized to

expend U.S. funds under the Joint Travel Regulations (JTR), para. C.6000.3; individuals performing services for the

government may also be funded.

10 U.S.C. § 1050 (Latin American Cooperation - LATAM COOP) authorizes service secretaries to pay the travel,

subsistence, and special compensation of officers and students of Latin American countries and other expenses the

secretaries consider necessary for Latin American cooperation.

10 U.S.C. § 1051 (Bilateral or Regional Cooperation Programs) provides similar authority to pay travel expenses

and other costs associated with attendance at bilateral or regional conferences, seminars, or similar meetings if the

SECDEF deems attendance in the U.S. national security interest. See also DoD Authorization Act for FY 97, Pub. L. No.

104-201 (110 Stat. 3009), § 1065 and §8121 (1996), authorizing support for participation in Marshall Center activities for

European and Eurasian nations, and attendance by foreign military officers and civilians at seminars and similar studies at

the Asia-Pacific Center for Security Studies, respectively.

10 U.S.C. § 168 (Military-to-Military Contacts) authorizes the SECDEF to engage in military-to-military contacts

and comparable activities that are designed to encourage democratic orientation of defense establishments and military

forces of other countries.

Funding - All of these activities are funded with O&M funds [often with service funding, TCA, or CIF, as described

above].

Bilateral and Multilateral Exercise Programs.

10 U.S.C. § 2010 (Developing Country Exercise Program - DCCEP) authorizes payment of incremental expenses

of a developing country incurred during bilateral or multilateral exercises if it enhances U.S. security interests and is

essential to achieving the fundamental objectives of the exercise.

10 U.S.C. § 2011 (Special Operations Force - SOF Training) permits the SOCOM Commander or Combatant

CINC to fund the expenses of training all Special Operations Forces [Civil Affairs, PSYOP, Special Forces, SEALS,

Rangers, Special Boat Units, AFSOC, etc.] training with the armed forces or security forces of a friendly foreign country,

including incremental expenses.

Incremental expenses incurred as the result of these training authorities include rations, fuel, training aids,

ammunition, and transportation; they do not include pay, allowances, and other normal costs for the countrys personnel.

Regional Cooperation Programs.

Partnership for Peace activities are authorized by existing authorities, outlined above.265

Cooperative Threat Reduction (CTR) with States of the Former Soviet Union (FSU). This legislation funds

various programs to dismantle the FSUs arsenal of weapons of mass destruction;266 Congress appropriated $440.4M for

the CTR program in FY 99.

267 These are three-year funds available until 30 September 2001.

264 31 U.S.C. § 1345 requires a specific appropriation for travel, transportation, and subsistence expenses for meetings. See also National Highway

Traffic Safety Admin.Travel and Lodging Expenses, 62 Comp. Gen. 531 (1983).

265 See H.R. Conf. Rep. No. 747, 103d Cong., 2d Sess. 63 (1994)

266 Defense Authorization Act for FY 99, Pub. L. No. 105-261, 112 Stat. 2161, § 1301 (1998). But see Authorization Act, § 1303 (prohibiting use of

funds for peacekeeping or peacekeeping-related activity, housing, environmental restoration, or job training).

267 Defense Appropriations Act for FY 99, Pub. L. No. 105-262, 112 Stat. 2286 (1998).

Chapter 12

Fiscal Law

229
International Military Education and Training (IMET) - [Foreign Assistance Act (FAA) §§ 541-545 (22 U.S.C.

§§ 2347-2347d)] is a security assistance program to provide training to foreign militaries, including the proper role of the

military in civilian-led democratic governments and human rights [often called Expanded-IMET].

Overseas Humanitarian, Disaster, and Civic Aid (OHDCA) Operations See Chapter 14

Congress has provided limited authority to DoD to conduct Overseas Humanitarian, Disaster, and Civic Aid

(OHDCA) operations [also known as Humanitarian Assistance Programs (HAP)]. See DoD Appropriations Act, 2001,

Pub. L. No. 106-259, Title II, 114 Stat. 663 (2001) (providing $55.9M for all programs conducted under the authority of

10 U.S.C. §§ 401, 402, 404, 2547, and 2551 during FYs 2001 and 2002).

Primary responsibility for Humanitarian, Refugee. and Disaster Relief operations lies with the Department of State,

through USAID and other agencies, like the Office of Foreign Disaster Assistance (OFDA).

FAA §492(10 U.S.C. § 2292) (International Disaster Assistance). The President may furnish foreign disaster

assistance under such terms and conditions determined appropriate pursuant to the FAA §§ 491-496 (22 U.S.C.

§§ 2292-2292q). See Foreign Assistance Appropriations Act for FY 98, Pub. L. 1054-118, Title II, 111 Stat. 2391 (1997)

($190M appropriated to DoS for international disaster assistance under this authority).

FAA § 506(a)(1) (22 U.S.C. § 2318(a)(1))(Emergency Drawdown) permits the President to draw down defense

stocks and services in response to unforeseen emergencies requiring military assistance to a foreign country or

international organization. Use of this authority requires notice to Congress, and is limited to $100 million per fiscal year.

Contracting is not allowed under Drawdown authority, with the exception of transportation, when less expensive than

military transportation. See, 22 U.S.C. § 2318(c). The Defense Security Cooperation Agency has proponency for

Drawdowns. See http://www.dsca.osd.mil/. For a good nuts & bolts guide to drawdowns see, DSCA Action Officer

(AO) Handbook for Foreign Assistance Act (FAA) Drawdown of Defense Articles and Services, (as of 15 Dec. 2000),

available at: http://129.48.104.198/programs/erasa/Drawdown%20handbookr1.pdf.

FAA § 506(a)(2) (22 U.S.C. § 2318(a)(2))(Emergency Drawdown). The President also may require any federal

agency to provide support to counterdrug activities, disaster relief, or migrant and refugee assistance, antiterrorism, and

non-proliferation assistance efforts of other federal agencies through a FAA § 506 drawdown, up to $200M per year.

506(a)(2). Drawdowns for counterdrug activities and POW accounting are limited to $75M and $15M, respectively, and

DoD provides no more than $75M of goods and services per year under this authority.

Refugee Assistance (22 U.S.C. 2601c). The Department of State is responsible for refugee support in the Migration

and Refugee Assistance Act of 1962. See Foreign Assistance Appropriations Act for FY 98, Pub. L. 105-118, Title II,

111 Stat. 2386 (1997) ($650M appropriated to DoS to support refugee operations, the International Organization for

Migration (IOM), the International Committee of the Red Cross (ICRC) and the United Nations High Commissioner for

Refugees (UNHCR); as well as $50M of no-year money to support the Emergency Refugee and Migration Assistance

Fund). (See also provisions of the Refugee Assistance Act of 1980, § 501 (8 U.S.C. § 1522 note), authorizing the

President to direct other agencies to support Cuban and Haitian Refugees on a reimbursable or non-reimbursable basis).

FAA § 632 (22 U.S.C. § 2392)(DoS Reimbursement). Under this authority, similar to the Economy Act, discussed

below, DoS may provide funds to other executive departments to assist DoS in accomplishing their assigned missions

(usually implemented through 632 Agreements between DoD and DoS).

Fiscal Law Issues in Honduras. Historically, DoD conducted limited Humanitarian and Civic Assistance (HCA)

operations in foreign nations without separate statutory authority. In 1984, the Comptroller General opined that DoDs

extensive use of O&M funds to provide HCA violated the Purpose Statute (31 U.S.C. § 1301(a)) and other wellestablished fiscal principles. See To The Honorable Bill Alexander, B-213137, 63 Comp. Gen. 422 (1984) (Honduras I).

The Comptroller General concluded that DoD had used its O&M accounts improperly to fund foreign aid and security

assistance. The Honduras I opinion applied a three-pronged test to determine whether certain expenses for construction

and to provide medical and veterinary care were proper expenditures:

Chapter 12

Fiscal Law

230
First and foremost, the expenditure must be reasonably related to the purposes for which the

appropriation was made . . . . Second, the expenditure must not be prohibited by law . . . . Finally, the

expenditure must not fall specifically within the scope of some other category of appropriations.

Honduras I at 427-28.

This test is used to analyze fiscal law problems. Applying it to the military construction, training, and HCA

operations conducted in Honduras in 1983, the Comptroller General disapproved certain O&M expenditures that were

reasonably related to DoD purposes (that is, expenditures which achieved readiness and operational benefit for DoD),

but which failed the other tests. The Comptroller General determined that certain O&M expenditures were improper

either because they were prohibited by law (violating the second prong of the above test), or because they achieved

objectives that were within the scope of more specific appropriations, such as appropriations to the State Department for

foreign aid under the FAA or the Arms Export Control Act (violating the third prong). See The Honorable Bill

Alexander, B-213137, Jan. 30, 1986 (unpub.) (Honduras II) at 27-30. The Comptroller General did recognize, however,

that limited HCA was permissible with O&M funds. See Honduras II at 38. See also 10 U.S.C. § 401c(4) and DoD Dir.

2205.2, Humanitarian and Civic Assistance. This controversy spurred the development of separate legislative authority

(discussed below) for the conduct of humanitarian activities by the military.

DoD Statutory Authorities. (See Chapter 14, this Handbook).

10 U.S.C. § 401 (HCA) provides for HCA projects, approved in coordination with the Combatant CINCs and

DoS, that improve operational readiness skills of participating U.S. forces and are conducted in conjunction with military

operations. HCA projects are often conducted during CJCS-directed exercises or deployments for training. Section 401

includes authority for training host nations in the removal of land mines. See 10 U.S.C. § 401(e)(5).

10 U.S.C. § 402 (Transportation). DoD may transport supplies provided by non-governmental, U.S. sources

without charge on a space-available basis. DoD may not use this authority to supply a military or paramilitary group.

Administrative details for the use of the § 402 authority may be found at: http://public.transcom.mil/J3/denton/steps.html.

10 U.S.C. §404 (Foreign Disaster Assistance). The President may direct SECDEF to provide disaster

assistance outside the United States to respond to manmade or natural disasters when necessary to prevent the loss of life.

Includes transportation, supplies, services, and equipment; but requires notice to Congress within 48 hours. OHDCA

funds are available for organizing general policies and programs for disaster relief programs. The President delegated

disaster relief authority to the SECDEF, with concurrence from DoS (except in emergency situations). See EO 12966, 60

Fed. Reg. 36949 (15 July 1995).

10 U.S.C. § 2547 (Excess Nonlethal Supplies: Humanitarian Relief) authorizes excess supplies to be made

available for humanitarian relief to DoS, which will be responsible for distribution. May be used in conjunction with

other authorities to provide transportation or § 2551 authority for funding incidental costs.

10 U.S.C. § 2551(Transportation and Other Humanitarian Support). DoD also may provide fully funded

transportation (on an other-than space-available basis), if it pays such transportation costs with its O&M funds earmarked

for OHDCA purposes. In addition, this statute permits the use of funds for other humanitarian purposes, worldwide,

including contracts if necessary.

The Judge Advocates Role. The judge advocates primary role during military operations that involve disaster

relief, humanitarian, or refugee support operations is to ensure mission accomplishment within the constraints of law. It

requires an in-depth understanding of the statutory authorities. The general rule is that only O&M funds earmarked for

OHDCA purposes are used for this support. Secondary sources of authority include 10 U.S.C. § 127a Contingency

Funds; § 166a CINC Initiative Funds (CIF); and Traditional CINC Activity funding (TCA). The judge advocate must

ensure that problems are identified during exercise planning and avoided. After-the-fact justifications that stretch DoD

authority risk Comptroller General scrutiny and adverse actions against those who circumvent congressionally-imposed

limitations.

Supporting Multilateral Peace and Humanitarian Operations

Chapter 12

Fiscal Law

231
U.S. support to other nations or international organizations during multilateral operations is authorized by a number

of provisions of the Foreign Assistance Act, Title 10 U.S.C., the Arms Export Control Act, and other statutes. With

respect to UN support, Presidential Decision Directive (PDD)-25 emphasizes the necessity for reducing costs for UN

peace operations, reforming UN management of peace operations, and improving U.S. management and funding of peace

operations (including increased cooperation between the Legislative and Executive branches). The United States

generally will seek either direct reimbursement for the provision of goods and services to other nations or international

organizations, or credit against a UN assessment. In rare circumstances, the United States may contribute goods, services,

and funds on a nonreimbursable basis. DoS is responsible for oversight and management of Chapter VI operations where

U.S. combat units are not participating, as well as Chapter VI operations in which U.S. forces are participating and all

Chapter VII operations.

Authorities. Much like Disaster Relief and Refugee Support, DoS has the lead in supporting other nations engaged in

Peacekeeping Operations (PKO). See FAA § 551 (22 U.S.C. § 2348). See also Foreign Operations Appropriations Act

for FY 97 (additional appropriations), Title V, Chapter 7, reprinted in H.R. Rep. 863, 104th Cong., 2d Sess. 536 (1996)

(DoS provided $65M to support PKO). Other than the authorities mentioned below, DoD is prohibited from providing

direct or indirect contributions to the UN for peacekeeping operations or to pay UN arrearages. 10 U.S.C. § 405. In

addition, under § 8074 of the Defense Appropriations Act for FY 99, Pub. L. No. 105-262 (1998), DoD also must notify

Congress 15 days before transferring to another nation or international organization any defense articles or services in

connection with peace operations under Chapter VI or VII of the UN Charter or any other international peacekeeping,

peace enforcement, or humanitarian assistance operation. This requirement affects all of the authorities described in this

section, or the preceding section, unless they already require congressional notification. In practice, DoD provides

blanket notification for all PKO or Humanitarian operations where goods or services are being transferred to other nations

or international organizations.

UN Participation Act (UNPA) § 7 (22 U.S.C. § 287d-1) authorizes support to the UN, upon its request, to assist in

the peaceful settlement of disputes (not involving the employment of armed forces under Chapter VII). Includes detail of

up to 1000 military personnel as observers, guards, or any other non-combatant capacity, and furnishing of facilities,

services, or other assistance and loan of U.S. supplies and equipment. The statute generally requires reimbursement,

except when it has been waived in the national interest (authority delegated to DoS by EO 10206, 16 Fed. Reg. 529

(1951)).

FAA § 506(a)(1&2) (22 U.S.C. § 2318(a)(1&2)) (Emergency Drawdown). With the limitations discussed above,

these drawdowns also may be used to support multilateral peace and humanitarian operations.

FAA § 552(c)(2) (22 U.S.C. § 2348(c)(2)) (PKO Drawdown). A FAA § 552 drawdown, of up to $25M per year

from any federal agency, may be used to support peace operations in unforeseen emergencies, when deemed important

to the national interest.

Detailing of Personnel. FAA § 627 (22 U.S.C. § 2387) authorizes detailing of officers or employees to foreign

governments, when the President determines it furthers the purposes of the FAA. FAA § 628 (22 U.S.C. § 2388) allows

similar details to international organizations, to serve on their staff or to provide technical, scientific, or professional

advice or services. Per § 630 of the FAA (22 U.S.C. § 2390), detailed individuals may not take an oath of allegiance or

accept compensation. 22 U.S.C. § 1451 authorizes the Director of the U.S. Information Agency (USIA) to assign U.S.

employees to provide scientific, technical, or professional advice to other countries. This does not authorize details

related to the organization, training, operations, development, or combat equipment of a countrys armed forces. 10

U.S.C. § 712 authorizes the President to detail members of the armed forces to assist in military matters in any republic in

North, Central, or South America. All of these details may be on a reimbursable or a non-reimbursable basis.

FAA § 516 (22 U.S.C. § 2321j) (Excess Defense Articles). Defense articles no longer needed may be made

available to support any country for which receipt of grant aid was authorized in the Congressional Presentations

Document (CPD). Priority is still accorded to NATO and southern-flank allies. There is an aggregate ceiling of $350M

per year, beginning in FY 97; cost is determined using the depreciated value of the article. No space available

transportation is authorized, normally; but DoD may pay packing, crating, handling and transportation costs to PFP

eligible nations under the Support to Eastern European Democracy (SEED) Act of 1989. See Defense Security

Assistance and Improvements Act, § 105, Pub. L. No. 104-164 (1996).

Chapter 12

Fiscal Law

232
Reimbursable Support. The primary authority for reimbursable support is FAA § 607 (22 U.S.C. § 2357), which

authorizes any federal agency to provide commodities and services to friendly countries and international organizations

on an advance of funds or reimbursable basis. Support to the UN and other foreign nations are usually provided under the

terms of a 607 Agreement with the nation or organization, detailing the procedures for obtaining such support. DoS

must authorize DoD to negotiate these agreements. FAA § 632, authorizing transfer of funds from DoS and the Economy

Act are also means of providing reimbursable DoD support. Finally, Foreign Military Sales (FMS) or Leases, provided

under authority of the Arms Export Control Act (AECA) §§ 21-22 & 61-62 (22 U.S.C. §§ 2761-62 & 2796), respectively,

permit the negotiation of FMS contracts or lease agreements to support countries or international organizations.

Reimbursement usually includes administrative overhead under Defense Security Cooperation Agency (DSCA)

procedures.

10 U.S.C. §§ 2341-2350 (Acquisition and Cross-Servicing Agreements (ACSAs)). These statutory provisions

allow DoD to acquire logistic support without resort to commercial contracting or FMS procedures and to transfer support

outside of the AECA. After consultation with DoS, DoD may execute agreements with NATO countries, NATO

subsidiary bodies, other eligible countries, the UN, and international or regional organizations for the reciprocal provision

of logistic support, supplies, and services. Acquisition and transfers are on a cash reimbursement, replacement-in-kind, or

exchange-of-equal-value basis. Many ACSAs already exist. Consult your MACOM or CINC legal advisors for details.

Security Assistance.

Funding for aid to foreign armies is specifically provided for in foreign assistance appropriations. Except as

authorized under the acquisition and cross-servicing authority, transfers of defense items and services to foreign countries

are regulated by the Arms Export Control Act. 22 U.S.C. §§ 2751-96. See also DoD 7000.14-R (Financial Management

Regulation), vol. 15, Security Assistance Policy and Procedures (Mar. 18, 1993). Providing weapons, training, supplies,

and other services to foreign countries must be done under the Arms Export Control Act, the Foreign Assistance Act

(FAA) (22 U.S.C. §§ 2151-2430i), and other laws.

The Arms Export Control Act.

The Arms Export Control Act permits DoD and commercial sources to provide defense articles and defense services

to foreign countries to enhance the internal security or legitimate self-defense needs of the recipient; permit the recipient

to participate in regional or collective security arrangements; or permit the recipient to engage in nation-building efforts.

22 U.S.C. § 2754. Section 21(a)(1) of the Arms Export Control Act (22 U.S.C. § 2761(a)(1)) permits the sale of defense

articles and services to eligible foreign countries. State Department appropriations and foreign countries own revenues

fund Arms Export Control Act activities. To sell defense articles and services (procured with DoD appropriations) to

foreign countries, the State Department first obtains them from the DoD. The Defense Security Cooperation Agency

(DSCA) manages the process of procuring and transferring defense articles and services to foreign countries for the State

Department. This process provides for reimbursement of applicable DoD accounts from State Department funds or from

funds received from sales agreements directly with the foreign countries.

The reimbursement standards for defense articles and services are established in Section 21(a)(1) of the Arms Export

Control Act (22 U.S.C. § 2761(a)(1)). For defense articles the reimbursement standards are: not less than [the] actual

value [of the article], or the estimated cost of replacement of the article, including the contract or production costs less

any depreciation in the value of such article.

For defense services the reimbursement standards are: [f]ull cost to the U.S. Government of furnishing such service

[unless the recipient is purchasing military training under the International Military Education and Training or IMET

section the FAA, 22 U.S.C. § 2347] . . . [the value of services provided in addition to purchased IMET is recovered at]

additional costs incurred by the U.S. Government in furnishing such assistance.

Section 21(e) of the Arms Export Control Act (22 U.S.C. § 2761(e)) requires the recovery of DoD costs associated

with its administrative services in conducting sales, plus certain nonrecurring costs and inventory expenses.

The Foreign Assistance Act (FAA).

Chapter 12

Fiscal Law

233
The FAA has two principal parts. Part I provides for foreign assistance to developing nations; Part II provides for

military or security assistance. The FAA treats these two aspects of U.S. government support to other countries very

differently. The treatment is different because Congress is wary of allowing the U.S. to be an arms merchant to the world,

but supports collective security. See 22 U.S.C. § 2301. The purposes served by the provision of defenses articles and

services under Part II of the FAA are essentially the same as those described for the Arms Export Control Act (see 22

U.S.C. § 2302), but under the FAA, the recipient is more likely to receive the defense articles or services free of charge.

Congress imposes fewer restraints on non-military support (foreign assistance) to developing countries. The primary

purposes for providing foreign assistance under Part I of the FAA are to alleviate poverty; promote self-sustaining

economic growth; encourage civil and economic rights; and integrate developing countries into an open and equitable

international economic system. See 22 U.S.C. §§ 2151, 2151-1. In addition to these broadly defined purposes, the FAA

contains numerous other specific authorizations for providing aid and assistance to foreign countries. See 22 U.S.C. §§

2292-2292q (disaster relief); 22 U.S.C. § 2293 (development assistance for Sub-Saharan Africa).

The overall tension in the FAA between achieving national security through mutual military security, and achieving

it by encouraging democratic traditions and open markets, is also reflected in the interagency transaction authorities of the

act. Compare 22 U.S.C. § 2392(c) with 22 U.S.C. § 2392(d) (discussed below)). DoD support of the military assistance

goals of the FAA is generally accomplished on a full cost recovery basis; DoD support of the foreign assistance and

humanitarian assistance goals of the FAA is accomplished on a flexible cost recovery basis.

By authorizing flexibility in the amount of funds recovered for some DoD assistance under the FAA, Congress

permits some contribution from one agencys appropriations to another agencys appropriations. That is, an authorized

augmentation of accounts occurs whenever Congress authorizes recovery of less than the full cost of goods or services

provided.

State Department reimbursements for DoD or other agencies efforts under the FAA are governed by 22 U.S.C. §

2392(d). Except under emergency Presidential draw down authority (22 U.S.C. § 2318), reimbursement to any

government agency supporting State Department objectives under subchapter II of this chapter (Part II of the FAA

(military or security assistance)) is computed as follows:

[a]n amount equal to the value [as defined in the act] of the defense articles or of the defense services

[salaries of military personnel excepted], or other assistance furnished, plus expenses arising from or

incident to operations under [Part II] [salaries of military personnel and certain other costs excepted].

This reimbursement standard is essentially the full reimbursement standard of the Economy Act (see below).

Procedures for determining the value of articles and services provided as security assistance under the Arms Export

Control Act and the FAA are described in the Security Assistance Management Manual (DoD Manual 5105.38-M) and

the references therein.

The emergency presidential draw down authority of 22 U.S.C. § 2318 authorizes the President to direct DoD support

for various State Department efforts that further national security, including counterdrug programs (22 U.S.C. §

2318(a)(2)(A)(i)). In addition, Part VIII of subchapter I (in Part I of the FAA) is the International Narcotics Control

provision of the act (22 U.S.C. §§ 2291-2291k. A draw down of DoD resources may be reimbursed by a subsequent

appropriation (22 U.S.C. § 2318(c)); however, this seldom occurs. When no appropriation is forthcoming, a Presidential

draw down is another example of an authorized augmentation of accounts (DoD appropriations are used to achieve an

objective ordinarily funded from State Department appropriations).

In addition to the above, Congress has authorized another form of DoD contribution to the State Departments

counterdrug activities by providing that when DoD furnishes services in support of this program, it is reimbursed only for

its additional costs in providing the services (i.e., its costs over and above its normal operating costs), not its full costs.

The flexible standard of reimbursement under the FAA mentioned above for efforts under Part I of the FAA is

described in 22 U.S.C. § 2392(c). This standard is applicable when any other federal agency supports State Department

foreign assistance (not military or security assistance) objectives for developing countries under the FAA.

Chapter 12

Fiscal Law

234
[A]ny commodity, service, or facility procured . . . to carry out subchapter I of this chapter [Part I]

[foreign assistance] . . . shall be (reimbursed) at replacement cost, or, if required by law, at actual cost,

or, in the case of services procured from the DoD to carry out part VIII of subchapter I of this chapter

[International Narcotics Control, 22 U.S.C. § 2291(a)-2291(h)], the amount of the additional costs

incurred by the DoD in providing such services, or at any other price authorized by law and agreed to

by the owning or disposing agency.

Note the specific reference to DoD services in support of State Department counterdrug activities. Additional costs

incurred is the lowest acceptable interagency reimbursement standard. If Congress wishes to authorize more DoD

contribution (that is, less reimbursement to DoD appropriations), Congress authorizes the actual expenditure of DoD

funds for or on the behalf of other agencies. See Defense Authorization Act for Fiscal Year 1991, Pub. L. No. 101-510,

§§ 1001-11, 104 Stat. 1485, 1628-34 (1990) [codified at 10 U.S.C. § 374 note] (providing general authority for DoD to

engage in counterdrug operations); see also Defense Authorization Act for Fiscal Year 1999, Pub. L. No. 105-261, §

1021, 112 Stat. 2120 (1998) (extending DoDs counterdrug authority through FY 2003).

The DoD reimbursement standards for 22 U.S.C. § 2392(c) are implemented by DoD 7000.14-R, vol. 11A

(Reimbursable Operations, Policies and Procedures), ch. 1 (General), ch. 7 (International Narcotics Control Program).

When DoD provides services in support of State Department counterdrug activities, the regulation permits no cost

recovery when the services are incidental to DoD missions requirements. The regulation also authorizes pro rata and

other cost sharing arrangements. See DoD 7000.14-R, vol. 11A, ch. 7.

Emergency authorities also exist to permit the U.S. to provide essential assistance to foreign countries when in the

interest of U.S. security. See, e.g., 22 U.S.C. § 2364 (President may authorize assistance without regard to other

limitations if he determines it will assist U.S. security interests, and notifies Congress; certain limitations still apply).

Domestic Disaster Relief Operations. See the chapter on Domestic Operations, this Handbook.

DoD Directive 3025.1 (Use of Military Resources during Peacetime Emergencies within the United States, its

Territories, and Possessions) and AR 500-60 (Disaster Relief) regulate emergency disaster relief operations within the

U.S. In 1989, Congress created the Defense Emergency Response Fund (DERF), funded with $100 million, to remain

available until expended, to reimburse current appropriations used for supplies and services in anticipation of requests

from other agencies for disaster assistance. Defense Appropriations Act, 1990, Pub. L. No. 101-165, Title V, 103 Stat.

1112, 1126-27 (1989). The DERF legislation permits DoD to use DERF funds if the Secretary of Defense determines

that immediate action is necessary before receipt of a formal request for assistance on a reimbursable basis from another

federal agency or a state government. In 1993, Congress expanded DoDs ability to use DERF funds, to make this

appropriation available a request for assistance from another federal agency or a state government, if the Secretary of

Defense determines that use of the fund is necessary. Defense Appropriations Act, 1994, Pub. L. No. 103-139, § 8131,

107 Stat. 1418, 1470 (1993). This change makes DERF funds available for DoD domestic disaster assistance efforts after

a request for assistance, and avoids DoD jeopardizing its O&M accounts by providing disaster assistance in the absence

of a reimbursement agreement. However, DoD activities should continue to obtain reimbursement agreements as

emergency conditions permit, rather than relying on DERF funding exclusively.

after

The (42 U.S.C. §§ 5121-5203) authorizes the President to

direct federal agencies to provide assistance essential to meeting immediate threats to life or property resulting from a

major disaster, with or without reimbursement. 42 U.S.C. §§ 5170a & 5170b. Agencies may incur obligations

immediately by contract or otherwise in such amounts as are made available by the President. 42 U.S.C. § 5149(b).

Federal agencies receive reimbursement for their relief efforts the Federal Emergency Management Agency

(FEMA) requests assistance. Reimbursement is limited to expenses above normal operating levels. Agencies may credit

reimbursements received to their operating accounts. 10 U.S.C. § 5147; AR 500-60, paragraph 5-3. A Memorandum of

Understanding between DoD and FEMA should address reimbursements. DoD activities also should seek a FEMA

tasking letter defining the exact scope of disaster relief responsibilities. The letter should state a not-to-exceed

reimbursable amount, which DoD units should not exceed without approval from higher headquarters.

Stafford Disaster Relief and Emergency Assistance Act

may if

Purpose Statute Violations

Chapter 12

Fiscal Law

235
As noted at the beginning of this chapter, the Purpose Statute provides that [a]ppropriations shall be applied only to

the objects for which the appropriations were made except as otherwise provided by law. See 31 U.S.C. . § 1301(a).

Thus, if the command uses funds for an improper purpose, it must recover/deobligate the funds used erroneously and seek

the proper appropriation. For example, if the command constructs a $550,000 (funded costs) building with O&M funds,

it has violated the Purpose Statute. (Remember, O&M is normally proper only for projects with funded costs up to

$500,000.) To correct this violation, the command must recover the O&M funds and substitute (obligate) Unspecified

Minor Military Construction (UMMC) funds, which are available for projects between $500,000 and $1.5 million. While

this is a matter of adjusting agency accounts, if proper funds (UMMC) were unavailable both at the time of the original

obligation, e.g., contract award, and when the adjustment is made, the command must report a potential Antideficiency

Act (ADA) violation. See discussion of the ADA, below. The same analysis applies if the command uses O&M funds to

purchase what are considered to be investment items, e.g., equipment or systems that are either centrally managed or cost

$100,000 or more. Finally, if a command uses funds for a purpose for which there is no appropriation, this is an

uncorrectable Purpose Statute violation, and officials must report a potential ADA violation.

AVAILABILITY OF APPROPRIATIONS AS TO TIME

The Time control includes two major elements. First, appropriations have a definite life span. Second,

appropriations normally must be used for the needs that arise during their period of availability.

Period of availability. Most appropriations are available for a finite period. For example, Operation and

Maintenance funds, the appropriation most prevalent in an operational setting, are available for one year; Procurement

appropriations for three years; and Construction funds have a five-year period of availability. If funds are not

during their period of availability, they expire and are unavailable for new obligations (e.g., new contracts or changes

outside the scope of an existing contract). Expired funds may be used, however, to adjust existing obligations (e.g., to

pay for a price increase following an in-scope change to an existing contract).

obligated

The bona fide needs rule. This rule provides that funds are available only to satisfy requirements that arise during

their period of availability, and will affect which fiscal year appropriation you will use to acquire supplies and services.

See 31 U.S.C. § 1502(a).

Supplies. The bona fide need for supplies normally exists when the government actually will be able to use the

items. Thus, a command would use a currently available appropriation for computers needed and purchased in the current

fiscal year. Conversely, commands may not use current year funds for computers that are not needed until the next fiscal

year. Year end spending for computers that will be delivered within a reasonable time after the new fiscal year begins is

proper, however, as long as a curre is documented. Note that there are lead-time and stock-level exceptions to the

general rule governing purchases of supplies. See Defense Finance and Accounting Service Reg.--Indianapolis 37-1

[DFAS-IN 37-1], Chapter 8. In any event, stockpiling items is prohibited. See M , B-134277, Dec. 18,

1957 (unpub.).

nt need

r. H.V. Higley

Services. Normally, services are bona fide needs of the period in which they are performed. Grounds

maintenance, custodial services, and vehicle/equipment maintenance are examples of recurring services considered

severable. Use current year funds for recurring services performed in the current fiscal year. As an exception, however,

10 U.S.C. § 2410a permits funding a contract (or other agreement) for severable services using an appropriation current

when the contract is executed, even if some services will be performed in the subsequent fiscal year. Conversely,

services are bona fide needs of the year in which a contract (or other agreement) is executed. Nonseverable

services are those which contemplate a single undertaking, e.g., studies, reports, overhaul of an engine, painting a

building, etc. Fund the entire undertaking with appropriations current when the contract (or agreement) is executed. See

DFAS-IN 37-1, ch. 8.

severable

nonseverable

AVAILABILITY OF APPROPRIATIONS AS TO AMOUNT

The Antideficiency Act (31 U.S.C. §§ 1341(a), 1342, & 1517(a)) prohibits any government officer or employee

from:

Chapter 12

Fiscal Law

236
(1) Making or authorizing an expenditure or obligation in advance of or in excess of an appropriation. 31 U.S.C. §

1341.

(2) Making or authorizing an expenditure or incurring an obligation in excess of a formal subdivision of funds; or in

excess of amounts permitted by regulations prescribed under 31 U.S.C. § 1514(a). 31 U.S.C. § 1517.

(3) Accepting voluntary services, unless authorized by law. 31 U.S.C. § 1342.

Commanders must ensure that fund obligations and expenditures do not exceed amounts provided by higher

headquarters. Although overobligation of an installation account normally does not trigger a reportable

Antideficiency Act (ADA) violation, an overobligation locally may lead to a breach of a formal O&M subdivision at the

Major Command level. See 31 U.S.C. § 1514(a) (requiring agencies to subdivide and control appropriations by

establishing administrative subdivisions); 31 U.S.C. 1517; DFAS-IN 37-1, ch. 4. Similarly, Purpose section, above,

overobligation of a statutory limit, e.g., the $500,000 O&M threshold for construction, may lead to an ADA violation.

O&M

Regulations require flash reporting of possible ADA violations. DoD 7000.14-R, Financial Management

Regulation, vol. 14; DFAS-IN 37-1, ch. 4. If a violation is confirmed, the command must identify the cause of the

violation and the senior responsible individual. Investigators file reports through finance channels to the office of the

Assistant Secretary of the Army, Financial Management & Comptroller (ASA (FM&C)). Further reporting through OSD

and the President to Congress also is required if ASA (FM&C) concurs with a finding of violation. By regulation,

commanders must impose administrative sanctions on responsible individuals. Criminal action also may be taken if a

violation was knowing and willful. Lawyers, commanders, contracting officers, and resource managers all have been

found to be responsible for violations. Common problems that have triggered ADA violations include:

(1) Without statutory authority, obligating (e.g., awarding a contract) current year funds for the bona fide needs of a

subsequent fiscal year. This may occur when activities stockpile supply items in excess of those required to maintain

normal inventory levels.

(2) Exceeding a statutory limit (e.g., funding a construction project in excess of $500,000 with O&M; acquiring

investment items with O&M funds).

(3) Obligating funds for purposes prohibited by annual or permanent legislation.

(4) Obligating funds for a purpose for which Congress has not appropriated funds, e.g., personal expenses where

there is no regulatory or case law support for the purchase)

CONCLUSION

Congress limits the authority of DoD and other executive agencies to use appropriated funds. The principal fiscal

controls imposed by statute, regulation, and case law are Purpose, Time, and Amount. These controls apply both to

CONUS activity and OCONUS operations and exercises. The Comptroller General, service audit agencies, and

inspectors general monitor compliance with rules governing the obligation and expenditure of appropriated funds.

Commanders and staff rely heavily on judge advocates for fiscal advice. Active participation by judge advocates in

mission planning and execution, as well as responsive and well-reasoned legal advice, will help ensure that commands

use appropriated funds properly. Those found responsible for funding violations will face adverse personnel actions and

possibly criminal sanctions.

Chapter 12

Fiscal Law

237
Ch

apter 12

Fiscal Law

238
CHAPTER 13

DEPLOYMENT CONTRACTING AND BATTLEFIELD ACQUISITION

REFERENCES

1. Army Federal Acquisition Regulation Manual No. 2 (Contingency Contracting), Nov.

1997.

2. Air Force FAR Supplement, Appendix CC  Contingency Operational Contracting

Support Program (COCSP), AFAC 96-3, March 31, 2000.

3. Joint Pub. 1-06, Joint Tactics, Techniques, and Procedures for Financial Management

During Joint Operations, 22 December 1999.

4. Joint Pub. 4-0, Doctrine for Logistics Support of Joint Operations, 6 April 2000 (Chapter

V, Contractors in Theater).

5. AR 700-137, Logistics Civil Augmentation Program (LOGCAP), 16 Dec. 85.

6. AR 715-9, Army Contractors on the Battlefield, 29 Oct. 99.

7. DA Pam. 715-16, Contractor Deployment Guide, 27 Feb. 98.

8. AMC PAM 700-30, Logistics Civil Augmentation Program (LOGCAP), 31 Jan 00.

9. AMC LOGCAP Battle Book, 31 Jan 00.

10. FM 100-10-2, Contracting Support on the Battlefield, 15 Apr 99.

11. DA PAM 700-31, Commanders Handbook for Peacekeeping Operations (A Logistics

Perspective), 1 Jul 94.

12. DA PAM 700-15, Logistics Support of United Nations Peacekeeping Forces, 1 May 86.

13. DA PAM 690-80/NAVSO P-1910/AFM 40-8/MCO P12910.1, Use and Administration of

Local Civilians in Foreign Areas During Hostilities, 12 Feb 71.

14. AMC PAM 715-18, AMC Contractor Deployment Guide for Contracting Officers, 8 Jul.

96.

15. AMC LOGCAP Homepage: http://www.amc.army.mil/dcs_logistics/lg-ol/infopage.html.

16. Air Force Contract Augmentation Program (AFCAP) homepage:

http://www.afcesa.af.mil/Directorate/CEX/AFCAP/afcap.html.

17. FM 100-21, Contractors on the Battlefield, 26 Mar 00.

18. USAF Material Command Contingency Contracting Web site: https://www.afmc-milwpafb.af.mil/HQ-AFMC/PK/pko/gotowar.htm.

INTRODUCTION268

Operations DESERT SHIELD/DESERT STORM highlighted the role that contracting plays in military operations.

Contracting became an effective force multiplier for deployed forces. Operations DESERT SHIELD/DESERT STORM

also revealed that a challenging problem for deployed forces is compliance with contract and fiscal law while conducting

military operations in the field. Recent operations in Somalia, Haiti, and Bosnia proved again the value of contracted

support to a deployed force. Attorneys participating in future deployments must be prepared to handle contract and fiscal

law issues.

The primary reason our forces conduct deployment contracting is because it serves as a force multiplier. It is a

means of leveraging our assets and reducing our dependence on CONUS based logistics. In addition to serving as a force

multiplier, deployment contracting also provides some collateral benefits. Some collateral benefits of deployment

contracting are: (1) contracting with local sources frees-up our limited air and sea lift assets for other higher priority

needs; (2) contracting with local contractors reduces the time between identification of needs and the delivery of supplies

268 For a complete overview of contracting in an operational setting, see CONTRACT & FISCAL L. DEPT, THE JUDGE ADVOCATE GENERALS SCHOOL,

U.S. ARMY, CONTRACT ATTORNEYS DESKBOOK, Chapter 29, Contract and Fiscal Law for Deploying Forces. The current version of the deskbook is

available on either JAGCNET: http://jagcnet.army.mil/ContractLaw, or on the TJAGSA homepage: http://www.jagcnet.army.mil/TJAGSA.

Chapter 13

Deployment Contracting

239
or performance of services; and (3) contracting with local contractors provides alternative sources for supplies and

services.

Applicable Law During a Deployment. Contracting during a deployment involves two main bodies of law:

international law, and U.S. contract and fiscal law. Attorneys must understand the authorities and limitations imposed by

these two bodies of law.

International Law.

The Law of WarCombat.

The Law of WarOccupation (may be directly applicable, or followed as a guide when no other laws clearly

apply, such as in Somalia during Operation Restore Hope).

International Agreements.

U.S. Contract and Fiscal Law.

Armed Services Procurement Act of 1947, as amended. 10 U.S.C. §§ 2301-31.

Federal Acquisition Regulation (FAR) and Agency Supplements.

Fiscal Law. Title 31, U.S. Code; DoD Financial Management Reg (DoD 7000.14-R), DFAS-IN 37-1; DFAS

Manual 37-100-XX (XX= current FY).

Executive Orders and Declarations.

Wartime Funding. Congressional declarations of war and similar resolutions may result in subsequent legislation

authorizing the President and heads of military departments to expend appropriated funds to prosecute the war as they see

fit. However, recent military operations (Bosnia, Haiti, Somalia, Desert Shield/Desert Storm, Panama, Grenada) were not

declared wars.

Wartime Contract Law. Congress has authorized the President and his delegees to initiate contracts that facilitate

national defense notwithstanding any other provision of law. Pub. L. No. 85-804, codified at 50 U.S.C. § 1431-1435;

Executive Order 10789 (14 Nov. 1958); FAR Part 50. These powers are extremely broad, but authority to obligate funds

in excess of $50,000 may not be delegated lower than the Army Secretariat. Earlier versions of this statute were the basis

for the wholesale overhaul of defense acquisition at the beginning of World War II. This may occur again in a future

general conflict. Although these are broad powers, Congress still must provide the money to pay for obligations incurred

under this authority.

PREPARATION FOR DEPLOYMENT CONTRACTING

The Unified Command or MACOM controlling the deployment will set policy and procedure affecting contracting

plans. Coordinate with the controlling headquarters and other MACOMs that will have roles in expected deployments.

OPLANs will determine when the contracting personnel will deploy. The contracting element generally consists of

contracting officers, ordering officers, legal and other support personnel.

General Considerations. Recent operations have demonstrated the need to begin planning early for contracting during a

deployment. The personnel necessary for effective contracting must be identified and trained. Units must develop plans

for contracting personnel/teams to deploy with the organization. Units must realize that assets for contracting normally

will come from their organic resources. Judge Advocates must also review any existing CONPLANS or OPLANS,

paying particular attention to the acquisition and/or contracting appendices. Reserve assets may provide some contracting

support. Coordinate in advance to determine the extent of this support. Prior to deployment, the command should

Chapter 13

Deployment Contracting

240
determine who will have the authority to approve requests for contract support. An acquisition review board should be

established in any major deployment.

269

Contracting Officer (KO) / Ordering Officer Support. Commanders should identify KO/ordering officer support

requirements. Only contracting officers and their authorized representatives (e.g., ordering officers) may obligate

government funds. KOs award, administer, or terminate contracts and make determinations and findings permitted by

statute and regulation. FAR 1.602-1.

Commanders should ensure that KOs and ordering officers are properly appointed and trained. The Head of

Contracting Activity (HCA), an attaché, a chief of a foreign mission (Army), or certain officials in the Army Secretariat

may appoint KOs. FAR 1.603; AFARS 1.603-2. An HCA may delegate appointment power to a Principal Assistant

Responsible for Contracting (PARC). This is the official who usually exercises authority to hire and fire KOs.

The chief of the contracting office may appoint ordering officers. AFARS 1.603-1(2). There is no specific guidance

on appointing ordering officerscommon practice is to appoint a commissioned officer, warrant officer, or

noncommissioned officer. Ordering officers usually are not part of the contracting element, but are a part of the forward

units. Ordering officers make purchases with imprest funds, make over the counter purchases with SF 44s, and issue

delivery orders against existing indefinite delivery contracts awarded by KOs. AFARS 1.603-1-90. Ordering officers

may also be government credit card holders. AFARS 13.9. KOs and ordering officers are subject to limitations in their

appointment letters and procurement statutes and regulations. Contracting authority may be limited by dollar amount,

subject matter, purpose, time, etc., or may be unlimited. Typical limitations are restrictions on the types of items that may

be purchased and on per purchase dollar amounts.

Administrative Needs. Deployable units should assemble contracting support kits. Package and label kits in footlockers

or similar containers for easy deployment. Administrative needs forgotten may be difficult to obtain in the area of

operations. The kits should contain a 90-day supply of administrative needs and all essential references.

References.

Statutes: Titles 10, 22, 31, and 41 of U.S. Code.

Regulations: FAR, DFARS, AFARS/AFFARS/NAPS, DFAS-IN 37-1, DFAS-IN Manual 37-100- XX (XX=

current FY), DoD Reg. 7000.14-R, vol. 5, and command supplements to these regulations. If these are too much to

deploy with, take a pocket FAR or the CFR version maintained with your own updating. Take CD-ROM contract

references and LEXIS/WESTLAW software, as well as necessary computer and communications equipment. The

CLAMO CD-ROM: Deployed Judge Advocate Resource Library, Second Edition, contains a complete copy of the FAR,

FAR Matrix, and the GAO Redbook.

Contract Forms.

These are essential. The contracting element should ensure it brings a 90-day supply of: Standard Form (SF) 44s

(Purchase Order-Invoice-Voucher), DD Form 1155s (Purchase Order), SFs 26, 30, 33, and 1442 (solicitation, award, and

modification, and construction solicitation forms), DA Form 3953 (Purchase Request and Commitment), and form

specifications for common items, such as: Subsistence items; Labor and Services; Fuel; Billeting; Construction Materials;

Fans, Heaters, etc.

Typing contract documents manually is tedious and time-consuming. Contracting elements should deploy with

Standard Army Automated Contracts System (SAACONS) software loaded on personal computers for automated

production of contract documents. Otherwise, ensure the contracting office obtains the FAR in CD form, together with

software necessary to lift FAR provisions from the CD to word-processing documents. Translation of contract forms,

specifications, and other provisions also should be obtained before deployment if possible.

269 Ensure that the G-4/J-4 for the operation reviews and approves requirements, to avoid purchases better filled through the supply system. AFARS

Manual No. 2, paras. 2-3, 2-4.

Chapter 13

Deployment Contracting

241
Other Logistical Needs.

Bring maps, area phone books, catalogs with pictures, etc., to assist in finding and dealing with potential vendors

in the deployment theater. Also bring desks, typewriters, computers, paper, etc., as well as personnel trained to use them.

Arrange for translator support for the contracting element (coordinate with Civil Affairs unit in COSCOM or TAACOM;

contact embassy if necessary to obtain this support). Deploy with a notebook computer, and include a CD-ROM drive to

access FAR, DFARS, and service supplements to the FAR, if these references are available in this format.

Finance and Funding Support. Finance specialists are not part of the contracting element and not under its control. A

deploying unit should train its personnel to properly account for funds when they must do so without the aid of a finance

office. Generally, deploying units will receive a bulk-funded DA Form 3953, Purchase Request and Commitment

(PR&C)270 if requested to support needs while deployed.

Consider establishing an imprest fund in advance of deployment notification.

271 FAR 13.4; DFARS 213.4; DoD Reg.

7000.14-R, vol. 5, paras. 020906 to 020907. Imprest fund cashiers should receive training in their duties, liabilities, and

the operation of an imprest fund prior to deployment. Installation commanders may establish funds up to $10,000. An

imprest fund operates like a petty cash fund; it is replenished as payments are made from it. The fund should include

local currency if available before deployment. FAR 25.501 requires that off-shore procurements be made with local

currency, unless the contracting officer determines the use of local currency inappropriate (e.g., if a SOFA exists and it

allows use of U.S. dollars).

Finance personnel or designees (e.g., Class A agents) hold money and will accompany an ordering officer to actually

make payment if a vendor will not take a SF 44 or other contract document and invoice the U.S. later. Identify the

deploying Class A paying agents, and ensure they are appointed and trained as necessary.

CONTRACTING DURING A DEPLOYMENT

This section discusses various methods used to acquire supplies and services. It begins with a general discussion of

seeking competition, and discusses specific alternatives to acquiring supplies and services pursuant to a new contract to

meet the needs of a deploying force. The key to successful contracting operations is the proper training and appointment

of contracting personnel. Units should verify that contracting support personnel have received necessary training. If time

permits, provide centralized refresher training. Also review warrants and letters of appointment for contracting officers

and ordering officers for currency. Ensure that personnel know the limitations on their authority. Review and update

contents of contracting support kits. Ensure that references include latest changes.

Competition Requirements. The Competition in Contracting Act, 10 U.S.C. § 2304, requires the government to seek

competition for its requirements. See also FAR 6.003. In general, the government must seek for full and open

competition by providing all responsible sources an opportunity to compete. No automatic exception is available for

contracting operations during deployments.

The statutory requirement for full and open competition for purchases over the simplified acquisition threshold

creates a 45-day minimum procurement administrative lead time (PALT) for solicitations issued, and contracts awarded

and performed, within the Continental U.S. (CONUS). The 45-day PALT results from a requirement to publish notice of

the proposed acquisition 15 days before issuance of the solicitation (thru synopsis of the contract action in the Commerce

Business Daily (CBD)), then to provide a minimum of 30 days for offerors to submit bids or proposals. Three additional

time periods extend the minimum 45-day PALT: 1) time needed for requirement definition and solicitation preparation;

2) time needed for evaluation of offers and award of the contract; and 3) time needed after contract award for delivery of

supplies or performance of services. Exceptions to the usual requirement for full and open competition include:

270 For the Department of the Navy, use the NAVCOMPT Form 2275/2276; for the Air Force, use AF Form 9 (O&M).

271 Effective 1 October 1996, use of imprest funds by DoD activities in CONUS is no longer authorized. Effective 1 October 1997, use of imprest funds

is not authorized OCONUS. However, the use of imprest funds is authorized for use in a contingency operations. See message, Under Secretary of

Defense (Comptroller), Subject: Elimination of Imprest Funds (28 March 1996). See also, DoD Reg. 7000.14-R, vol. 5,ch.2, para. 0208.

Chapter 13

Deployment Contracting

242
(1) Unusual and compelling urgency; this exception authorizes a contract action without full and open

competition. It permits the contracting officer to limit the number of sources solicited to those who are able to meet the

requirements in the limited time available. FAR 6.302-2. This exception also authorizes an agency to dispense with

publication periods (minimum 45-day PALT) if the government would be seriously injured by this delay. It also allows

preparation of written justifications for limiting competition after contract award. FAR 6.302-2(c)(1). DFARS

specifically states the unusual and compelling urgency exception is appropriate when supplies, services, or construction is

needed at once because of fire, flood, explosion, or other disaster. DFARS 206.302-2.272

(2) National security is another basis for limiting competition; it may apply if the existence of the operation or

the acquisition is classified. Mere classification of specifications generally is not sufficient to restrict the competition, but

it may require potential contractors to possess or qualify for appropriate security clearances. FAR 6.302-6.

(3) Public interest is another exemption to full and open competition, but only the head of the agency can

invoke it. FAR 6.302-7. For defense agencies, the determination may only be made by the Secretary of Defense.

DFARS 206.302-7.

Use of the urgent and compelling, national security, and public interest exceptions requires a Justification and

Approval, (J&A). FAR 6.303. Approval levels for justifications are listed in FAR 6.304:

Actions under $500,000: the contracting officer.

Actions from $500,000 to $10 million: the competition advocate.

Actions from $10 million to $50 million: the HCA or designee.

Actions above $50 million: the agency acquisition executive; for the Army this is the Assistant Secretary of the

Army for Research, Development, and Acquisition (ASA(RDA)).

Contract actions awarded and performed outside the United States, its possessions, and Puerto Rico, for which only

local sources will be solicited, generally are exempt from compliance with the requirement to synopsis the acquisition in

the CBD. These actions therefore may be accomplished with less than the normal minimum 45-day PALT, but they are

not exempt from the requirement for competition. See FAR 5.202 (a)(12); see also FAR 14.202-1(a) (thirty-day bid

preparation period only required if requirement is synopsized). Thus, during a deployment, contracts may be awarded

with full and open competition within an overseas theater faster than within CONUS, thus avoiding the need for a J&A

for other than full and open competition for many procurements executed in rapid fashion. Obtain full and open

competition under these circumstances by posting notices on procurement bulletin boards, soliciting potential offerors on

an appropriate bidders list, advertising in local newspapers, and telephoning potential sources identified in local telephone

directories.

Methods of Acquisition.

Sealed bidding: award is based only on price and price-related factors, and is made to the lowest, responsive,

responsible bidder.

Negotiations (also called competitive proposals): award is based on stated evaluation criteria, one of which must

be cost, and is made to the responsible offeror whose proposal offers either the lowest cost, technically acceptable

solution to the governments requirement, or the technical/cost trade-off, even if it is not lowest in cost. The basis for

award (low-cost, technically-acceptable or trade-off), and a description of the all factors and major subfactors that the

contracting officer will consider in making this determination, must be stated in the solicitation.

272 The unusual and compelling urgency exception was used by DLA to procure firefighting boots on short notice during the 2000 wildfire season.

Although ready to deploy, the 20th Engineer Battalion, 1

st Cavalry Division could not execute their mission without appropriate equipment. Due to the

severity of the fire season, normal stockpiles of firefighting equipment had been exhausted.

Chapter 13

Deployment Contracting

243
Simplified acquisition procedures: simplified acquisition procedures are for the acquisition of supplies,

nonpersonal services, and construction in amounts less than the simplified acquisition threshold.

Sealed Bidding as a Method of Acquisition.

Sealed bidding procedures must be used if the four conditions enumerated in the Competition in Contracting Act

exist. 10 U.S.C. § 2304(a)(2)(A); Racal Filter Technologies, Inc., B-240579, Dec. 4, 1990, 70 Comp. Gen. 127, 90-2

CPD ¶ 453.

1. Time permits the solicitation, submission, and evaluation of sealed bids;

2. Award will be made only on the basis of price and price-related factors;

3. It is not necessary to conduct discussions with responding sources about their bids; and

4. There is a reasonable expectation of receiving more than one sealed bid.

Use of sealed bidding results in little discretion in the selection of a source. Bids are solicited using Invitations for

Bids (IFBs) under procedures that do not allow for pre-bid discussions with potential sources. A clear

description/understanding of the requirement is needed to avoid having to conduct discussions. Sealed bidding requires

more sophisticated contractors because minor errors in preparing a bid prevent the government from accepting the offer,

because such errors are likely to make the bidder nonresponsive. Only fixed-price type contracts are awarded using these

procedures. Sealed bidding procedures seldom are used during active military operations. The fluidity of a military

operation generally requires discussions with responding offerors to explain our requirements and/or to assess their

understanding of, and capability to meet, U.S. requirements. Accordingly, sealed bidding procedures rarely are used until

the situation has stabilized. See FAR Part 14.

Negotiations (Competitive Proposals) as a Method of Acquisition.

Negotiations are used when the use of sealed bids is not appropriate. 10 U.S.C. § 2304(a)(2)(B). Negotiations permit

greater discretion in the selection of a source, and allow consideration of non-price factors in the evaluation of offers,

such as technical capabilities of the offerors, past performance history, etc. Offers are solicited by use of a Request for

Proposals (RFP). Discussions with offerors permit better understanding of needs and capabilities. Negotiations permit

the use of any contract type. Negotiations procedures also permit the use of letter contracts and oral solicitations to

expedite awards of contracts and more rapidly fulfill requirements. See FAR Part 15.

Simplified Acquisition Procedures

Simplified acquisition refers to contractual actions up to $100K in peacetime and during normal military exercises,

or up to $200K during a contingency operation as defined by 10 U.S.C. § 101(a)(13), or a humanitarian or peacekeeping

operation, for contracts awarded and performed outside the United States. 10 U.S.C. § 2302(8); DFARS 213.000; Army

Acquisition Letter (AL) 94-9. The Department of Defense has invoked this increased threshold during recent contingency

operations, including during Operations Desert Storm/Desert Shield in the gulf region, Operation Restore Hope in

Somalia, Operation Restore Democracy in Haiti, and during Operations in the Balkans.

About 95% of the contracting activity conducted in a deployment setting will be simplified acquisitions. The

following are various methods of making or paying for these simplified purchases. Most of these purchases can be

solicited orally, except for construction projects exceeding $2000 and complex requirements. The types of simplified

acquisition procedures likely to be used during a deployment are:

(1) Purchase Orders. FAR Subpart 13.5; DFARS Subpart 213.5; AFARS Subpart 13.5.

(2) Blanket Purchase Agreements (BPAs). FAR Subpart 13.2; DFARS Subpart 213.2; AFARS Subpart 13.2.

(3) Imprest Fund Purchases. FAR Subpart 13.4; DFARS Subpart 213.4; AFARS Subpart 13.4.

Chapter 13

Deployment Contracting

244
(4) Government Credit Card Purchases. AFARS Subpart 13.9.

(5) Accommodation checks/government purchase card convenience checks. DoD 7000.14-R, vol. 5, ch. 2,

para. 0210; see also DFARS 213.270(c)(6) and 213.305-1(3).

(6) Commercial Items Acquisitions. 10 U.S.C. § 22304(g)(1)(B); FAR 13.601.

Purchase Orders.

A purchase order is an offer to buy supplies or services, including construction. Purchase orders usually are issued

only after requesting quotations from potential sources. Issuance of an order does not create a binding contract. A

contract is formed when the contractor accepts the offer either in writing or by performance. In operational settings,

purchase orders may be written using two different forms.

(1) Dept of Defense (DD) Form 1155. This is a multi-purpose form which can be used as a purchase order, blanket

purchase agreement, receiving/inspection report, property voucher, or public voucher. It contains some contract clauses,

but users must incorporate all other applicable clauses. FAR 13.507; DFARS 213.507. See clause matrix in FAR Part 52.

When used as a purchase order, the KO may make purchases up to the simplified acquisition threshold. Only KOs are

authorized to use this form.

(2) Standard Form (SF) 44. See Appendices A & B. This is a pocket-sized form intended for over-the-counter or

on-the-spot purchases. Clauses are not incorporated. Use this form for cash and carry type purchases. Ordering

officers, as well as KOs, may use this form. Reserve unit commanders may use the SF 44 for purchases not exceeding

$2,500 when a Federal Mobilization Order requires unit movement to a Mobilization Station or site, or where

procurement support is not readily available from a supporting installation. DFARS 213.306, AFARS 1.603-1-90(c).

Conditions for use:

- As limited by appointment letter.

- Away from the contracting activity.

- Goods or services are immediately available.

- One delivery, one payment.

Ordering officers may use SF 44s for purchases up to $2,500 for supplies or services, except purchases up to the

simplified acquisition threshold may be made for aviation fuel or oil. A KO may make purchases up to the simplified

acquisition threshold ($100K normally, or $200K if overseas in the theater where the SECDEF has declared a

contingency).

Blanket Purchase Agreements (BPAs).

A BPA is a simplified method of filling anticipated repetitive needs for supplies or services essentially by

establishing charge account relationships with qualified sources of supply. They are not contracts but merely advance

agreements for future contractual undertakings. BPAs set prices, establish delivery terms, and provide other clauses so

that a new contract is not required for each purchase. The government is not bound to use a particular supplier as it would

be under a requirements contract. KO negotiates firm-fixed-prices for items covered by the BPA, or attaches to the BPA

a catalog with pertinent descriptions/prices.

BPAs are prepared and issued on DD Form 1155 and must contain certain terms/conditions. FAR 13.203-1(j):

(1) Description of agreement.

(2) Extent of obligation.

Chapter 13

Deployment Contracting

245
(3) Pricing.

(4) Purchase limitations.

(5) Notice of individuals authorized to purchase under the BPA and dollar limitation by title of position or

name.

(6) Delivery ticket requirements.

(7) Invoicing requirements.

KOs may authorize ordering officers and other individuals to place calls (orders) under BPAs. DFARS 213.303, AFARS

13.204-90. Existence of a BPA does not per se justify sole-source acquisitions/procurements. Consider BPAs with

multiple sources. If insufficient BPAs exist, solicit additional quotations for some purchases and make awards through

separate purchase orders.

Imprest Funds.273

An imprest fund is a cash fund of a fixed amount established by an advance of funds from a finance or disbursing

officer to a duly appointed cashier. The cashier disburses funds as needed to pay for certain simplified acquisitions.

Funds are advanced without charge to an appropriation, but purchases are made with notation on the receipts returned to

the imprest fund cashier of the appropriation which will be used to reimburse the imprest fund for the amount of the

purchase. See DoD 7000.14-R, vol. 5, ch. 2, para. 0209; DFARS 213.305-1. The maximum amount in a fund at any time

is $10,000. During an overseas contingency operation as defined in 10 U.S.C. 101 (a)(13) or a humanitarian or

peacekeeping operation as defined in 10 U.S.C. 2302(8), imprest funds may be used for transactions at or below the

micro-purchase threshold ($2500). DFARS 213.305-3.

Ordering officers, as well as KOs, may use the imprest fund procedures. Imprest fund cashiers, however, cannot be

ordering officers and cannot make purchases using imprest funds.

Each purchase using imprest funds must be based upon an authorized purchase requisition. If materials or services

are deemed acceptable by the receiving activity, the receiver annotates the suppliers sales document and passes it to the

imprest fund cashier for payment.

Government Credit Card Program.

Authorized government credit card holders, including a KO, may use the cards to purchase goods and services up to

$2,500 per purchase, or $25,000 outside the U.S. for commercial items, but not for work to be performed by workers

recruited within the U.S. Card holders may also use the cards to place task and delivery orders. FAR 13.301. (DOD has

proposed increasing this limit to $200,000. As of 3 April 2001, this limit has not yet been raised.) A KO may use the

card as a method of payment for purchases up to the simplified acquisition threshold when used in conjunction with a

simplified acquisition method. Funds must be available to cover the purchases. Special training for cardholders is

required. AFARS Subpart 13.9. Issuance of these cards to deploying units must be coordinated prior to deployment,

because there is insufficient time to request and receive the cards once the unit receives notice of deployment.

Accommodation Checks/Purchase Card Convenience Checks.

Commands involved in a deployment may utilize accommodation checks and/or government purchase card

convenience checks in the same manner as they are used during routine operations. Checks should only be used when

Electronic Funds Transfer (EFT) or the use of the government purchase card is not possible. See DoD 7000.14-R, vol. 5,

ch. 2, para. 0210; see also DFARS 213.270(c)(6) and 213.305-1(3). Government purchase card convenience checks may

not be issued for purchases exceeding the mirco purchase threshold of $2,500. See DoD 7000.14-R, vol. 5, ch. 2, para.

021001.E.1.

273 See note 271, supra, regarding the phased elimination of imprest funds.

Chapter 13

Deployment Contracting

246
Commercial Items Acquisitions.

Much of our deployment contracting involves purchases of commercial items. The KO is authorized to use special

simple commercial procedures to make commercial item acquisitions up to $5,000,000. 10 U.S.C. § 2304(g)(1)(B); FAR

13.601. Under this procedure the KO may use any simplified acquisition method.

Simplified Acquisition Competition Requirements.

Competition requirements apply to simplified acquisitions as well as to larger procurements. The standard for

simplified acquisitions is to obtain competition to the maximum extent practicable, which ordinarily means soliciting

quotes from sources within the local trade area. FAR 13.104. For new purchases up to $2,500, only one oral quotation is

required, if the KO finds the price to be fair and reasonable. FAR 13.202 (a)(2); Northern Virginia Football Officials

Assoc., B-231413, Aug. 8, 1988, 88-2 CPD ¶ 120. The KO should distribute such purchases equitably among qualified

sources. FAR 13.202; Grimms Orthopedic Supply & Repair, B-231578, Sept. 19, 1988, 88-2 CPD ¶ 258. If practicable,

solicit a quotation from other than the previous supplier before placing a repeat order.

For purchases between $2500 and the simplified acquisition threshold ($100K normally, $200K during declared

contingencies), obtain oral quotations from a reasonable number of sources. Omni Elevator, B-233450.2, Mar. 7, 1989,

89-1 CPD ¶ 248. Unless the action requires FAR 5.101 synopsis and an exception under FAR 5.202 is inapplicable,

consider soliciting at least three sources. Whenever practicable, request quotes from two sources not included in the

previous solicitation. FAR 13.104 (b). You normally should also solicit the incumbent contractor. J. Sledge Janitorial

Serv., B-241843, Feb. 27, 1991, 91-1 CPD ¶ 225.

Use written solicitations for construction over $2000 or when oral quotations are not feasible. If only one source is

solicited, justify the absence of competition in writing.

Requirements aggregating more than the simplified acquisition dollar limitations may not be broken down into

several purchases to permit the use of simplified acquisition procedures. FAR 13.103(b).

Subject to the following exceptions, the KO is not required to publicize contract actions that will not exceed the

simplified acquisition threshold:

(1) Synopsizing in the CBD is required for contract actions expected to exceed $25,000. FAR 13.105; 5.101.

Public posting of the request for quotations for 10 days is required if the order is estimated to be between $10,000 and

$25,000, except when ordering perishable subsistence items. 15 U.S.C. § 637(e); 41 U.S.C. § 416; FAR 5.101.

(2) For a CONUS contract action, if the order is estimated to exceed $10,000, and only one source is expected

to compete, publish notice of the Request for Quotations (RFQ) in the Commerce Business Daily (CBD). 41 U.S.C. §

416. KOs must also publish a synopsis of CONUS sole-source awards in the CBD. 15 U.S.C. § 637(e).

(3) There is no requirement to publish a synopsis of pending contract actions by defense agencies which will be

made and performed outside the U.S., its possessions or Puerto Rico, and for which only local sources will be solicited.

Many KOs forget the local sources only limitation. FAR 5.202(a)(12).

In evaluating quotations, if the KO receives a single quotation, the KO must verify price reasonableness (e.g.,

through obtaining another quote, or by comparison with established catalog prices) only when the requiring activity or the

KO suspects or has information to indicate that the price may not be reasonable, or when the government is purchasing an

item for which no comparable pricing information is available (e.g., an item that is not the same as, or similar to, other

items recently purchased on a competitive basis). If a price variance between multiple quotations reflects a lack of

adequate competition, the KO must document how he determined the price to be fair and reasonable. FAR 13.106(c).

Occasionally an item can be obtained only from a supplier who quotes a minimum order price or quantity that either

unreasonably exceeds stated quantity requirements or results in an unreasonable price for the quantities required. In these

instances, the KO should inform the requiring activity of all facts regarding the quotation, and request it to confirm or

alter its requirement. The file shall be documented to support the final action taken.

Chapter 13

Deployment Contracting

247
Use of Existing Contracts to Satisfy Requirements. Existing ordering agreements, indefinite delivery contracts, and

requirements contracts may be available to meet recurring requirements, such as fuel and subsistence items. Investigate

existence of such contracts with contracting offices of units and activities with continuing missions in the deployment

region. For example, the Navy had an existing contract for the provision of shore services to its ships in the port of

Mombasa, Kenya, which was used in lieu of new contracts to provide services to air crews operating out of Mombasa

during Operation Provide Relief.

The U.S. Army Material Command (AMC) has a cost-type contract known as LOGCAP (Logistics Civil

Augmentation Program) which provides for comprehensive logistics and construction support to a deployed force

anywhere in the world. By using this contract to provide logistics support to a deployed force, a commander can perform

a military mission with a much smaller force than might otherwise be necessary, and without developing and awarding an

entirely new contract to obtain required support. See AR 700-137.

LOGCAP is primarily designed for use where no treaties exist but can be used CONUS274 as well as OCONUS.

LOGCAP is designed to develop support for an arriving force in an austere environment to provide for basic needs such

as water, sewage, electricity, etc. LOGCAP may also provide services such as force sustainment, construction, and other

general logistics support. LOGCAP Homepage (Army AMC) is: http://www.amc.army.mil/dcs_logistics/lgol/infopage.html.

LOGCAP is an expensive contracting tool and should be used as a last resort. Examples of recent LOGCAP funding

include: $100 million in Somalia, $122 million in Haiti, and over $2.2 billion in the Balkans.275 These high costs

associated with LOGCAP contract have resulted in closer scrutiny by Congress. In a recent report, the GAO noted that

commanders were unaware of the cost ramifications for what they were doing. In Bosnia, the unit commanders wanted to

accelerate the base camp construction and required the contractor to fly in the plywood from the U.S. because there were

insufficient supplies on the local markets. The commanders did not realize that the cost of plywood would cost them

about $86 per sheet because it only costs $14.06 in the U.S. They thought they were paying only $14.

Another contractual vehicle available for deployments is called LOGJAMMS contract (Logistics Joint

Administrative Management Support Services). It is a task-order driven multiple award contract. This contract is

administered by Forces Command (FORSCOM) and is geared to provide support to FORSCOM, U.S. Army Reserve

Command, Third Army, and TRADOC, and others upon request. LOGJAMMS is an alternative to the LOGCAP

contract. It provides much the same services as the LOGCAP and other Force Sustainment contracts, but is much broader

in scope. The LOGJAMSS homepage is: http://www.forscom.army.mil/aacc/LOGJAMSS/default.htm.

Another options may be the Air Force Contract Augmentation Program (AFCAP). Similar to LOGCAP, AFCAP is

primarily a civil engineering support contract. AFCAP can also provided limited services. AFCAP is a contract force

multiplier to augment Civil Engineer and Services capabilities to support worldwide contingency planning and

deployment operations principally in military operations other than war. AFCAP may also be used in base recovery

operations as a result of natural disasters, accidents, or terrorist attacks. The AFCAP has been used to support a number

of contingencies and was used to aid recovery efforts after Hurricane Georges struck Keesler AFB in 1998. The AFCAP

homepage is: http://www.afcesa.af.mil/Directorate/CEX/AFCAP/afcap.html.

The U.S. Navys Contingency Construction Capabilities (CONCAP) program is similar to AFCAP. CONCAP is

a Navy construction contracting program to provide responsive contracting vehicle and a large civilian contractor ready to

respond to contingencies or natural disasters anywhere in the world. CONCAP has been used in domestic support

operations to aid recovery efforts in the wakes of Hurricanes Bertha and Fran in 1996, and Hurricanes Bonnie and

Georges in 1998.

If LOGCAP or other existing contracts are used, you must take into account the following factors: (1)

MACOM/MAJCOM must review the OPLAN to determine which contracts will be used and what, if any advanced

procurement is going to take place; (2) recognize that there is a higher degree of risk in contractor performance during

deployments; and (3) must account for the safety of contractor personnel.

274 Operation Provide Refuge, the housing of Kosovar Refugees at Fort Dix, NJ, May-July 1999, was supported by LOGCAP.

275 Data is current through September 2000. Includes funding for the Bosnia Sustainment Contract, an outgrowth of the LOGCAP contract.

Chapter 13

Deployment Contracting

248
Alternative Methods for Fulfilling Requirements. New and existing contracts are not the only method of meeting the

needs of deployed military forces. The military supply system is the most common source of supplies and services.

Cross-servicing agreements and host-nation support agreements exist with NATO, Korea, and other major U.S. allies.

Similarly, under the Economy Act, other government agencies may fill requirements for deployed forces, either from

in-house resources or by contract. Finally, service secretaries retain substantial residual powers under Public Law 85-804

which may be used to meet critical requirements that cannot be fulfilled using normal contracting procedures.

Host nation support and cross-servicing agreements as means of fulfilling the needs of deployed U.S. forces are

addressed in 10 U.S.C. § 2341-50; DoD Dir. 2010.9; AR 12-16. These authorities permit acquisitions and transfers of

specific categories of logistical support to take advantage of existing stocks in the supply systems of the U.S. and allied

nations. Transactions may be accomplished notwithstanding certain other statutory rules related to acquisition and arms

export controls. However, except during periods of active hostilities, reimbursable transactions (i.e., those where

repayment in kind is not possible) are limited to a total of $150M (credit) / $200M (liability) per year for NATO and

$75M (credit) / $60M (liability) per year for non-NATO allies. The usefulness of these arrangements may be limited

when the host nation has not invited U.S. intervention, or when the U.S. deploys forces unilaterally.

The Economy Act (31 U.S.C. § 1535) provides another alternative means of fulfilling requirements. An executive

agency may transfer funds to another agency, and order goods and services to be provided from existing stocks or by

contract. For example, the Air Force could have construction performed by the Army Corps of Engineers, and the Army

might have Dept of Energy facilities fabricate special devices for the Army. Procedural requirements for Economy Act

orders, including obtaining contracting officer approval on such actions, are set forth in FAR Subpart 17.5, DFARS

217.5, and DFAS-IN 37-1. A general officer or SES must approve Economy Act Orders placed outside DoD. See

DFAS-IN 37-1, para. 12-7f.

Extraordinary contractual actions under Pubic Law 85-804 (50 U.S.C. § 1431-1435; FAR Part 50) may be taken

under the broad residual authority of the SECARMY to initiate extraordinary contractual actions to facilitate national

defense. Requiring activities may request that the Secretary use this authority. There are few limitations on use of these

powers. FAR 50.203(a). Procedures for requesting use of these powers are found in FAR Subpart 50.4, DFARS Subpart

250.4, and AFARS Subpart 50.4. Congress still must appropriate funds needed to pay obligations incurred under this

authority.

Leases of Real Property. The Army is authorized to lease foreign real estate at an annual rent of under $250,000. 10

U.S.C. § 2675. Authority to lease is delegated on an individual lease basis. AR 405-10, para. 3-3b. Billeting services are

acquired by contract, not lease. True leases normally are accomplished by the Army Corps of Engineers using area

teams.

INTERNATIONAL LAW CONSIDERATIONS IN THE ACQUISITION OF SUPPLIES AND SERVICES

DURING MILITARY OPERATIONS

We cannot rely only on the principles of international law for the acquisition of supplies and services to support

military operations. Limitations under international law make it imperative that we normally acquire supplies and

services using U.S. acquisition laws. Nevertheless, battlefield acquisition techniques (confiscation, seizure, and

requisition) may prove a valuable means of supporting some of the needs of a deployed force when active combat or

actual occupation of hostile territory occurs. Chapter 2 provides a summary of the international law principles which

govern the acquisition of property while opposing an enemy force or in occupied territory.

U.S. Rights and Obligations Under International Law Relating to Battlefield Procurement of Goods.

The law of land warfare regulates the taking and use of property by military forces. The rights and obligations of

military forces vary depending on the ownership of the property, the type of property, and whether the taking occurs on

the battlefield or under military occupation. Certain categories of property are completely protected from military action

(e.g., historic monuments, museums, and scientific, artistic, and cultural institutions).

Acquisition of Enemy Property in Combat.

Chapter 13

Deployment Contracting

249
Confiscation is the permanent taking or destruction of enemy public property found on the battlefield. HR (Hague

Conv. Annex Reg.), art. 23, para. (g); HR, art. 53; Field Manual 27-10, Law of Land Warfare, paras. 59, 393-424 (July

1956) (hereinafter FM). When required by military necessity, confiscated property becomes the property of the capturing

state. The concept of state ownership includes the requirement to preserve property. Confiscation is a taking without

compensation to the owner. Thus, a commander may acquire the supplies of an enemy armed force and its government.

Public buildings may also be used for military purposes. When military necessity requires it, if ownership is not known, a

commander may treat the property as public property until ownership is determined.

Seizure is the temporary taking of private or state property. When the use of private real property on the battlefield

is required by military necessity, military forces may temporarily use it without compensation. (Use of private real

property is discouraged; try to use public real property [firehouses make excellent CPs]. Anything other than a transient

use of private real property will require a lease [typically retroactive] concluded by the Corps of Engineers.) Private

personal property, if taken, must be returned when no longer required, or else the user must compensate the owner. HR,

art. 53; FM 27-10, para. 406-10. Examples of property which might be seized include arms and ammunition in contractor

factories; radio, TV, and other communication equipment and facilities; construction equipment; privately owned

vehicles, aircraft, ships, etc.

To the maximum extent possible, avoid seizing private property. Use enemy public (government or military)

property instead. If private property must be seized, give a receipt for the property, if possible, and record the condition

of the property and the circumstances of seizure. Units should produce duplicate forms for this purpose, not only to

document the seizure, but to notify operators and logisticians of the availability of the property. An example of such a

form is reproduced at the end of this Chapter. Units likely to seize property (typically airborne and light units with few

organic vehicles) should train on seizure, recordation, and reporting procedures. Vehicle seizure procedures should be in

the TACSOP of such units. Marking of seized vehicles (with spray paint or marker panels) should be addressed in the

TACSOP to minimize the likelihood of fratricide.

Acquisition of Enemy Property in Occupied Territories.

An occupation is the control of territory by an invading army. HR, art. 42; FM 27-10, para. 351. Public personal

property that has some military use may be confiscated without compensation. FM 27-10, para. 403. The occupying

military force may use public real property, if it has some military use or is necessary to prosecute the war. FM 27-10,

para. 401. However, no ownership rights transfer.

Private property capable of direct military use may be seized and used in the war effort. Users must compensate the

owner at the end of the war. FM 27-10, para. 403.

DoD makes a distinction between those instances in which a contractual obligation has arisen and those in which the

private owner must initiate a non-contractual claim for compensation. 25 Jan. 90 memo from Deputy General Counsel

(Acquisition) to ASA (RDA) (two categories of claims set forth). The first category involves products or services

acquired as result of express or implied in fact contract. The second category which gives rise to potential compensation

claims arises when a government representative unilaterally takes possession of the property. In both cases, an owner

may have extraordinary relief available (Pub. L. 85-804). In no case, however, is relief under Pub. L. 85-804, or under

any other contractual remedy, available to pay for combat damage.

Requisition is the taking of private or state property or services needed to support the occupying military force.

Unlike seizure, requisition can only occur upon the order of the local commander. Users must compensate the owner as

soon as possible. FM 27-10, para. 417. The command may levy the occupied populace to support its force, i.e., pay for

the requisition. Requisition is the right of the occupying force to buy from an unwilling populace. Requisitions apply to

both personal and real property. It also includes services.

Article 2 Threshold. If a host nation government invites U.S. forces into its territory, the territory is not occupied,

and U.S. forces have no right to take property (because the Law of War and the property rules therein have not been

triggered). The Host Nation may agree to provide for some of the needs of U.S. forces that cannot be met by contracting.

Examples: (1) Saudi Arabia in Operation DESERT SHIELD/STORM (1990-91), (2) Haiti in Operation UPHOLD

DEMOCRACY (1994-95), and (3) Bosnia-Herzegovina, in Operation JOINT ENDEAVOR (1995-96).

Chapter 13

Deployment Contracting

250
U.S. Rights and Obligations Under International Law Relating to Battlefield Procurement of Services. The law of

war also regulates use of prisoners of war (PWs) and the local populace as a source of services for military forces. PWs

and civilians may not be compelled to perform services of a military character or purpose.

Use of PWs as Source for Services in Time of War.

PWs may be used as a source of labor; however, the work that PWs may perform is very limited. Geneva Conv. for

the Protection of PWs (GPW), art. 49; FM 27-10, para. 125-133. PWs may not be used as source of labor for work of a

military character or purpose. GPW, art. 49; FM 27-10, para. 126. The regulation governing PW labor is AR 190-8,

which requires a legal review (with copy to OTJAG) of proposed PW labor in case of doubt concerning whether the labor

is authorized under the law of war. Note that PWs may be used to construct and support (food preparation, e.g.) PW

camps.

Use of Civilian Persons as Source for Services in Time of War.

Civilian persons may not be compelled to work unless they are over 18, and then only on work necessary either for

the needs of the army of occupation, for public utility services, or for the feeding, sheltering, clothing, transportation, or

health of the population of the occupied country. Geneva Conv. Relative to Protection of Civilian Persons in Time of

War (GC), art. 51; FM 27-10, para. 418-424. Civilians considered protected persons may not be compelled to take part in

military operations against their own country. GC, art. 51; FM 27-10, para 418.

The prohibition against forced labor in military operations precludes requisitioning the services of civilian persons

upon work directly promoting the ends of war, such as construction of fortifications, entrenchments, or military airfields;

or transportation of supplies/ammunition in the Area of Operations. There is no prohibition against their being employed

voluntarily and paid for this work. FM 27-10, para. 420.

Practical Considerations on Use of International Law Principles for Acquisition of Supplies and Services.

The uncertainty of these principles (confiscation, seizure, and requisition) as a reliable source for the acquisition of

supplies and services make them a less-preferred means of fulfilling the requirements of U.S. forces than traditional

contracting methods. However, these principles do provide an expedient complement to other acquisition techniques that

should not be overlooked in appropriate circumstances. Before using these acquisition techniques, however, consider the

impact that takings of private property or forced labor inevitably have on the populace. Consider also the difficulty in

accurately computing compensation owed if accurate records do not exist (units must set up a system for recording

takings of private property in SOPs if battlefield acquisitions are anticipated).

POLICING THE BATTLEFIELD.

The Grenada and Panama operations spawned a large number of irregular or unauthorized procurements and other actions

with procedural defects. At the end of active hostilities, U.S. forces faced the problem of correcting errors made in

acquisitions supporting combat units. Generally, resolution involved ratification, extraordinary contractual actions, and

GAO claims procedures.

Ratification of Contracts Executed by Unauthorized Government Personnel. Only certain officials (chief of a

contracting office, Principal Assistant Responsible for Contracting (PARC), Head of Contracting Agency (HCA)) may

ratify agreements made by unauthorized persons, which bind the U.S. in contract. FAR 1.602-3. There are dollar limits

on the authority to ratify unauthorized commitments:

Up to $10,000 - Chief of Contracting Office

$10,000 - $100,000 - PARC

Over $100,000  HCA

These officials may ratify only when:

Chapter 13

Deployment Contracting

251
The government has received the goods or services.

The ratifying official has authority to obligate the U.S. now, and could have obligated the U.S. at the time of the

unauthorized commitment.

The resulting contract would otherwise be proper (a proper contract type, a contract not prohibited by law, etc.), and

adequate funds are available, were available at the time of the unauthorized commitment, and have been available

continuously since that time.

The price is fair and reasonable.

Extraordinary Contractual Actions. If ratification is not appropriate, e.g., where no agreement was reached with the

supplier, the taking may be compensated as an informal commitment. FAR 50.302-3. Alternatively, the supplier may be

compensated using service secretary residual powers. FAR Part 50.

Requests to formalize informal commitments must be based on a request for payment made within 6 months of

furnishing the goods or services, and it must have been impracticable to have used normal contracting procedures at the

time of the commitment. FAR 50.203(d).

These procedures have been used to reimburse owners of property taken during the Korean War (AFCAB 188, 2

ECR § 16 (1966)); in the Dominican Republic (Elias Then, Dept. of Army Memorandum, 4 Aug. 1966); in Jaragua S.A.,

ACAB No. 1087, 10 Apr. 1968; and in Panama (Anthony Gamboa, Dept of Army Memorandum, Jan. 1990).

General Accounting Office (GAO) Claims. GAO claims procedures provide another method of settling claims

276 for

which the legal authority or procedures are uncertain. The GAO has broad authority to settle claims against the U.S. See

31 U.S.C. § 3702(a); Claim of Hai Tha Trung, B-215118, 64 Comp. Gen. 155 (1984). The procedures are set forth in 4

C.F.R. Part 30, and in Title 4, GAO Policies and Procedures Manual for the Guidance of Federal Agencies. See also

DFAS-IN 37-1, paras. 20-19 & 20-96.

Voluntary Creditors. Generally, government employees who make payments from private funds on behalf of the

U.S. may not be reimbursed. See 31 U.S.C. § 1342; Voluntary PaymentsGovt Reimbursement Liability, B-115761, 33

Comp. Gen. 20 (1953). A limited exception to this rule may apply in cases of urgent, unforeseen emergencies.

Reimbursement of Personal Expenditures by Military Member for Authorized Purchases, B-195002, May 27, 1980, 80-2

CPD ¶ 242. Circumstances authorizing reimbursement include protection of government property, MealsFurnishing

General Rule, B-177900, 53 Comp. Gen. 71 (1973), and unforeseen impediments to completion of an urgent agency

mission, Reimbursement of Personal Expenditures by Military Member for Authorized Purchases, B-195002, May 27,

1980, 80-2 CPD ¶ 242.

GAO claims procedures may be used to reimburse employees who have made payments which may fit within the

above exceptions to the general rule. The case at 64 Comp. Gen. 155 involved a claim by a Vietnamese man that the

GAO determined to be cognizable, but which was barred by a statute of limitations. The case at 33 Comp. Gen. 20

involved a person who submitted a voucher for $13.50, $9.00 of which was denied. A supervisor reimbursed that person

the $9.00 out of his own pocket, and claimed that money by letter to GAO (GAO denied recovery because supervisor

volunteered payment, and proper way was for person himself to file directly with GAO for $9.00). The case at 53 Comp.

Gen. 71 involved a claim for the cost of providing food service to Federal Protective Services Officers; the GAO found it

reimbursable on an emergency basis because the officers had to be on call to protect a federal building occupied by

protesters. If the GAO believes that a meritorious claim cannot be paid because an appropriation is not available for its

payment, GAO reports to Congress. 31 U.S.C. § 3702(d). This report may form the basis for congressional private relief

legislation.

276 Quantum meruit (unjust enrichment) claims no longer go to the GAO. These claims are adjudicated before DOHA (Defense Office of Hearings and

Appeals). Quantum meruit claims should be submitted to the KO and then forwarded through channels with an administrative record/file to DOHA.

Chapter 13

Deployment Contracting

252
CONCLUSION

Planning is critical to the success of contracting operations in an operational setting. Identification and proper

training of contracting personnel before deployment is essential. In addition to understanding the basic contracting rules

that will apply during U.S. military operations, contracting personnel also must know basic fiscal law principles (see

Chapter 12). Unauthorized commitments are easier to avoid than to correct through ratifications. Avoid them by putting

contracting capability where it is needed on the battlefield. When they do occur, ensure that unauthorized commitments

are detected and reported early while they are easier to correct.

Chapter 13

Deployment Contracting

253
APPENDIX A

SF 44

INSTRUCTIONS FOR THE USE OF THE SF 44:

Instructions are located on the inside cover of the form booklet.

1. Filling out the Form

(a) All copies of the form must be legible. To insure legibility, indelible pencil or ball-point pen

should be used. SELLERS NAME AND ADDRESS MUST BE PRINTED.

(b) Items ordered will be individually listed. General descriptions such as hardware are not

acceptable. Show discount terms.

(c) Enter project reference or other identifying description in the space captioned PURPOSE.

Also, enter proper accounting information, if known.

2. Distributing Copies

Copy No. 1 (Sellers Invoice)- Give to seller for use as the invoice or as an attachment to his commercial

invoice.

Copy No. 2 (Sellers Copy of the Order)- Give to seller for use as a record of the order.

Copy No. 3 (Receiving Report-Accounting Copy)-

(1) On over-the-counter transactions where the delivery has been made, complete receiving report section and

forward this copy to the proper administrative office.

(2) On other than over-the-counter transactions, forward this copy to location specified for delivery. (Upon

delivery, receiving report section is to be completed and this copy then forwarded to the proper

administrative office.

Copy No. 4 (Memorandum Copy)- Retain in the book, unless otherwise instructed.

3. When Paying Cash at Time of Purchase

(a) Enter the amount of cash paid and obtain sellers signature in the space provided in the seller section of Copy

No. 1. If seller prefers to provide a commercial cash receipt, attach it to Copy No. 1 and check the paid in

cash block at the bottom of the form.

(b) Distribution of copies when payment is by cash is the same as described above, except that Copy No. 1 is

retained by Government representative when cash payment is made. Copy No. 1 is used thereafter in

accordance with agency instruction pertaining to handling receipts for cash payments.

Chapter 13, Appendix A

Deployment Contracting

254
SF 44

TOP HALF

Chapter 13, Appendix A

Deployment Contracting

255
SF 44

BOTTOM HALF

Chapter 13, Appendix A

Deployment Contracting

256
APPENDIX B

PROPERTY CONTROL RECORD BOOK

FOR USE IN DOCUMENTING THE

SEIZURE OF PROPERTY ACQUIRED BY

MILITARY NECESSITY

THESE ARE CONTROLLED, SERIAL-NUMBERED DOCUMENTS.

USE STRICTLY IN ACCORDANCE WITH INSTRUCTIONS ON

INSIDE COVER. COPIES 1 (WHITE) 2 (BLUE) AND 3 (PINK) SHALL

BE DISTRIBUTED WHEN USED; COPY 4 (GREEN) SHALL REMAIN

ATTACHED TO THIS BOOK AT ALL TIMES.

Chapter 13, Appendix B

Deployment Contracting

257
INSTRUCTION TO COMMANDERS

1. You must accomplish your mission and ensure the safety of the lives and equipment entrusted to you.

You must also obey the law and respect the lives and property of the local population.

2. During combat operations, international law allows you to seize property if you have valid military

necessity. Seizing private or public property for mere convenience is unlawful. You may not leave civilians

without adequate food, clothing, shelter, or medical supplies. COMBAT OPERATIONS DO NOT GIVE

YOU LICENSE TO LOOT. Improper seizure of property may result in personal liability.

3. This Property Control Record is used to document seizure of property on the battlefield by U.S.

Armed Forces. It is very important that the form be filled out completely, legibly, and accurately. Property

should be described in as much detail as possible. Get photographs if you can!

4. After you have completed this form, give Copy 1 (white) to the property owner, if available; forward

Copy 2 (blue) to your battalion S-4. Copy 3 (pink) stays with the property that was seized and Copy 4

(green) remains attached to this book. Fill in the Seizure Record inside the back cover.

5. Direct questions about use of this form to the nearest judge advocate.

Chapter 13, Appendix B

Deployment Contracting

258
Seizure Record

Number Owners Name Date .

Chapter 13, Appendix B

Deployment Contracting

259
RECEIPT

This is a receipt for your property Ceci est une recette pour votre

that has been used or taken by the propriete qui etait utilisee ou prise

Armed Forces of the United States par lArmee des Etats-Unis. Le

of America. The unit commander commandant a determine que cette

determined that this property was propriete a ete necessaire aassurer le

essential to ensure the success of suces de la mission ou a proteger la

the mission or to protect the safety securite des soldats de son commandement.

of the soldiers of his command. This Cette reception peut etre utilise pour la

receipt may be used to redeem your remboursement pour votre propiete

property or document any claim. Ou pour documenter quel que reclamation

I acknowledge receipt of this document. Jaccuse reception du document.

Name___________________________ Nom:______________________________

Address_________________________ Adres:_____________________________

DOCUMENT NO. 000221

PROPERTY CONTROL BOOK

COUNTRY ________________________________________________________________________

GRID ________________ DATE ____________________________________________

1. Owners name _______________________________________________________________

2. Owners Address _____________________________________________________________

3. Reason for military necessity ____________________________________________________

_________________________________________________________________________________

_________________________________________________________________________________

4. Description of property _________________________________________________________

__________________________________________________________________________________

5. Condition of property ___________________________________________________________

6. Remarks _____________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

Signature ____________________________________________

Printed name _________________________________________

Rank ________________ SSN __________________________

Unit ________________________________________________

Chapter 13, Appendix B

Deployment Contracting

260
CHAPTER 14

SECURITY ASSISTANCE AND FOREIGN ASSISTANCE

REFERENCES

1. 10 U.S.C. § 166a, CINCs Initiative Funds.

2. 10 U.S.C. § 401, Humanitarian and Civic Assistance (HCA).

3. 10 U.S.C. § 402, Space Available Transportation of Relief Supplies.

4. 10 U.S.C. § 404, Disaster Relief.

5. 10 U.S.C. § 1050, Latin American (LATAM) Conferences.

6. 10 U.S.C. § 1051, Regional Conferences.

7. 10 U.S.C. § 2010, Combined Exercises.

8. 10 U.S.C. § 2011, Special Operations Training.

9. 10 U.S.C. § 2341-50, Acquisition and Cross Servicing Agreements.

10. 10 U.S.C. § 2547, Excess Non-Lethal Supplies.

11. 10 U.S.C. § 2551, Humanitarian Assistance (HA).

12. 22 U.S.C. § 2318, Presidential Drawdowns.

13. 22 U.S.C. § 2347, International Military Education and Training Program (IMET).

14. 22 U.S.C. § 2761, Foreign Military Sales Program (FMS).

15. 22 U.S.C. § 2763, Foreign Military Financing Program (FMFP).

16. 22 U.S.C. § 2770a, Reciprocal Training.

17. 31 U.S.C. § 1301(a), Purpose Statute.

18. Foreign Assistance Act of 1961, 75 Stat. 434, as amended and codified at 22 U.S.C. §§

2151-2349aa-9 (FAA).

19. Arms Export Control Act of 1976, 90 Stat. 734, as amended and codified at 22 U.S.C.

2751-2796c (AECA).

20. Senate Committee on Foreign Relations & House Committee on Foreign Affairs,

Legislation on Foreign Relations Through 1999, vols. I--A and I--B, (Apr 2000)

(containing up-to-date printing of the FAA and AECA and reflecting all current

amendments, as well as relevant portions of prior year authorization and appropriations

acts which remain in effect).

21. Foreign Operations, Export Financing, and Related Programs Appropriations Acts, passed

yearly (FOAA).

22.

23.

Executive Order No. 11958, Jan. 18, 1977, 42 Fed. Reg. 4311 (assigns Security Assistance

responsibilities among the Executive departments).

U.S. Department of State, Congressional Presentation Foreign Operations Fiscal Year

2001 (CPD).

24. DoD 5105.38-M, Security Assistance Management Manual (SAMM).

25. Defense Institute of Security Management, The Management of Security Assistance.

26. DoDD 5105.38, Defense Security Assistance Agency (DSAA), 10 August 1978

27. DoDD 5105.47, U.S. Defense Representative (USDR) in Foreign Countries, 20 September

1991

28. AR 12-15 / AFR 50-29 / SECNAVINST 4950.4, Security Assistance and International

Logistics: Joint Security Assistance Training (JSAT) Regulation, 28 Feb. 1990 (AR 12-

15).

29. The Honorable Bill Alexander, B-213137, 63 Comp. Gen. 422 (1984).

INTRODUCTION

The United States military has engaged in operations and activities that benefit foreign nations for many decades.

The authorities and funding sources for these operations and activities have evolved into a relatively confusing mesh of

statutes, annual appropriations, regulations, directives, messages and policy statements. How do we make sense of all

Chapter 14

Security Assistance

261
these rules? Is there a logical, relatively simple methodology for analyzing this tangled web of activities, authorities and

funding sources? Is there some connection and relationship between the various legislative authorities and funding

sources? We think so. This chapter will attempt to paint the big picture of U.S. foreign assistance and then focus on

specific areas of the big picture. Specifically, this chapter will:

Describe the legal framework for the provision of foreign assistance by the U.S. State Department and Defense

Department.

Depict the State Department Security Assistance programs designed to strengthen friendly foreign militaries,

including the U.S. militarys significant role in these programs.

Illustrate the Defense Department military cooperative programs that supplement and support the goals of the

security assistance programs of the State Department.

Very briefly describe a few of the State Department Development Assistance programs aimed at improving the

socio-economic foundations of friendly foreign nations, including the U.S. militarys extremely limited role in these

programs.

Summarize the Defense Department humanitarian programs intended to complement the development assistance

programs of the State Department.

Throughout the chapter, we will spotlight areas where Judge Advocates should pay special attention. The issue

usually boils down to deciding whether State Department authority (under Title 22 of the U.S. Code) and money, or

Defense Department authority (under Title 10 of the U.S. Code) and money should be used to accomplish a particular

objective. This sophisticated task often consumes a great amount of time and effort from an operational lawyer at all

levels of command. Understanding the individual components of the State Departments and Defense Departments

foreign assistance programs is very important, but a relatively simple matter. The real challenge is to learn how the

various programs interrelate with each other. This is where the Judge Advocate earns credibility with the commander.

By understanding the complex relationships between the various authorities and funding sources, the Judge Advocate is

better equipped to provide the commander with advice that can mean the difference between accomplishing the desired

objective legally, accomplishing it with unnecessary legal and political risk, or not accomplishing it at all.

LEGAL FRAMEWORK FOR THE PROVISION OF FOREIGN ASSISTANCE BY THE US GOVERNMENT

The Foreign Assistance Act

A landmark legislation that provided a key blueprint for this grand strategy of engagement with friendly nations was

the Foreign Assistance Act of 1961 (FAA).

277 The FAA intended to support friendly foreign nations against communism

on twin pillars: 1) provide supplies, training, and equipment to friendly foreign militaries, and 2) provide education,

nutrition, agriculture, family planning, health care, environment, and other programs designed to alleviate the root causes

of internal political unrest and poverty faced by the masses of many developing nations. The first pillar is commonly

referred to as security assistance and is embodied in Part II of the FAA. The second pillar is generally known as

development assistance and it is found in Part I of the FAA.

277 22 U.S.C. §§ 2151 et seq.

Chapter 14

Security Assistance

262
STATE DEPT.

& Foreign

Assistance Act

(22 U.S.C. § 2151 et seq)

Development

Assistance

Foreign Military Financing

Program (FMFP)

(22 U .S.C. § 2763)

Foreign Military Sales

Program (FMS)

(22 U.S.C. § 2761)

Intl Military Education &

Training Program (IMET)

(22 U.S.C. § 2347)

Presidential Drawdowns

(22 U.S.C. § 2318)

Other Programs

Agriculture and Nutrition

Population Control

Education

Environment

Disaster relief

DoD

DoD

DoD

DoD

DoD

DoD

Security Assistance

[AECA (22 U.S.C. §2751 et seq)]

Reciprocal Training

(22 U.S.C. § 2770a)

DoD

Health

Energy

Other Programs

The FAA charged the State Department with the responsibility to provide policy guidance and supervision for the

programs created by the FAA. Each year, Congress appropriates a specific amount of money to be used by agencies

subordinate to the State Department to execute the FAA programs.

278

Even though Congress charged the State Department with the primary responsibility for the FAA programs, the U.S.

military plays a very important and substantial supporting role in the execution of the FAAs first pillar, Security

Assistance. The small DoD boxes attached to the primary Security Assistance programs in the above diagram represent

this relationship. The U.S. military provides most of the training, education, supplies and equipment to friendly foreign

militaries under Security Assistance authority. The State Department retains ultimate strategic policy responsibility and

funding authority for the program, but the subcontractor that actually performs the work is often the U.S. military.

With regard to the second pillar of the FAA, Development Assistance, the U.S. Agency for International

Development (USAID), the Office for Foreign Disaster Assistance (OFDA) within the Department of State, and

embassies, often call on the U.S. military to assist with disaster relief and other humanitarian activities. Again, the legal

authority to conduct these programs emanate from the FAA, the funding flows from the State Departments annual

Foreign Operations Appropriations, and the policy supervision also rests with the State Department. But as represented

by the above diagram, the U.S. military plays a relatively small role in the State Department Development Assistance

programs.

The enactment of the FAA in 1961, which clearly empowered the State Department to serve as the principal U.S.

agent for foreign assistance, did not cause the U.S. military to cease performing its traditional operations and activities

that benefited foreign militaries and civilian populations. In fact, the Vietnam War, Arab  Israeli wars, and an escalation

of communist insurgencies throughout Asia, Africa, and Latin America caused an expansion of direct U.S. military

Chapter 14

Security Assistance

263

278 Annual Foreign Operations Appropriations Acts.
assistance to foreign militaries and to civilian populations in developing nations. The U.S. military viewed these

activities as a cost-effective means to contain communism, and the containment of communism was a legitimate national

security goal of the U.S. military. After all, if communism could not be contained by bolstering foreign militaries and

making it harder for the communists to foment insurgencies within the civilian population, then the U.S. military might

ultimately have to engage in combat on the borders and shores of the United States. Friendly countries had to become

more militarily self-reliant and socially stable.

In light of the fact that the U.S. military viewed its own traditional foreign assistance role as a national security

matter, it felt that use of its operations and maintenance funds for this purpose was very appropriate and within the

purpose for which Congress provided those funds.

U.S. Fiscal Law and The 1984 GAO Honduras Opinion

In the early 1980s the U.S. government tasked the U.S. military to provide assistance to the Nicaraguan contra

rebels that where committed to the overthrow of the Sandanista/communist government in Nicaragua. To provide this

assistance, the U.S. military began support and training operations for the Nicaraguan contras from Soto Cano Airbase in

neighboring Honduras.

In addition to the assistance provided to the contras, the U.S. military conducted joint combined exercises with the

Honduran armed forces. Prior to these exercises and during the exercises themselves, the U.S. Army provided military

training to Honduran armed forces and conducted a wide range of civic and humanitarian assistance to the Honduran rural

villagers located near the exercise sites. Both of these activities were funded using Department of Defense (DoD)

Operations and Maintenance (O&M) funds. These O&M funds were made available by Congress to the military for the

general operation and maintenance of the military, including the conduct of exercises.

In 1984 the U.S. Congress tasked the U.S. General Accounting Office (GAO) to investigate the U.S. militarys

activities at Soto Cano Airbase in Honduras. Specifically, Congress asked GAO to provide a legal decision regarding

the propriety of funding methods used by the Department of Defense in its recent joint combined exercises in Honduras.

GAO concluded that:

279

1. Costs pertaining to the training of Honduran armed forces during, or in preparation for, the  exercise

should have been financed as security assistance to Honduras. Use of [Defense Department] O&M funds for such

activities was unauthorized.; and

2. DoD has no separate authority to conduct civic action or humanitarian assistance activities, except on

behalf of other Federal agencies (such as AID)  or (for minor projects) as incidental to the provision of security

assistance. Such activities conducted in Honduras during the course of  [the exercise] were improperly charged to

DoDs O&M appropriations.

GAOs basis for the above conclusions results from its application of the Purpose Statute.280 Simply put, Congress

specifically authorized and funded the State Department to conduct Security Assistance and Development Assistance.

The Defense Department, on the other hand, received congressional authorization and operation and maintenance funds to

provide for national defense. Since the authority and funding provided to State Department were specific in nature

concerning security assistance and the development assistance, GAO concluded that the Defense Department was

prohibited from expending its general O&M funds to perform similar kinds of activities. In short, if Congress had

intended to spend more money on these kinds of activities and programs, it would have appropriated funds to the State

Department for that fiscal year. The U.S. militarys use of Defense Department O&M funds to do the same kind of work

resulted in the augmentation of the State Departments budget, contrary to Congressional intent.

Following this analysis, the GAO determined that

279 GAO also made conclusions regarding the use of O&M funds for military construction projects which are not relevant to the discussion in this

chapter.

280 31 U.S.C. Sec 1301(a). See discussion in the chapter entitled Fiscal Law concerning this statute.

Chapter 14

Security Assistance

264
expenses for training Honduran forces, and for the provision of civic and humanitarian assistance, have

been charged to DoDs O&M funds in violation of [The Purpose Statute,] 31 U.S.C. sec 1301(a).

Although 31 U.S.C. sec 1301(a) does not specify the consequences (or remedies) for its violation, it is

clear that such an expenditure is subject to disallowance by this Office.  In the present case, it is our

view that reimbursement should be made to the applicable O&M appropriation, where funds remain

available, from the appropriations that we have identified to be the proper funding sources (i.e., security

assistance funds for training of Honduran forces, foreign aid funds for civic/humanitarian assistance

activities).

GAOs remedy required the State Department to reimburse the Defense Departments O&M accounts for money

spent by the Defense Department to perform activities that should have been paid for from State Department funds.

GAO concluded its opinion by recommending to DoD that it seek specific funding authorization from the Congress

if it wishes to continue performing such a wide variety of activities under the aegis of an O&M funded exercise. DoD

wasted no time in acting on GAOs recommendation. Within a few years following the 1984 Honduras Opinion, DoD

sought and obtained several legislative authorizations permitting the use of DoD O&M funds to conduct limited

operations and activities that benefit foreign nations. These operations and activities are very similar to those conducted

by State Department agencies pursuant to the FAA. The key to these DoD authorized activities is that they must

complement, supplement, and support the primary FAA programs, but should not, duplicate, or frustrate the FAA

programs. The following diagram demonstrates some of the principal DoD legislative authorities that permit the U.S.

military to conduct operations that complement State Departments Security Assistance and Development Assistance

programs.

Chapter 14

Security Assistance

265

D EFE N SE

D E PA R T M E N T

Title 10, U.S. C ode

M ilita ry C ooperation

A utho rities

M ilita ry H um anitar ian

A utho rities

Regional Conferences

(10 U .S.C. § 1051)

Latin Am erican (L AT AM )

C oopera tion

(10 U .S.C. § 1050)

Combined Exercises

(10 U .S.C. § 2010)

A cquisition a nd Cross

Se rvicing A gre em ents

(10 U .S.C. § 2341 -50)

H um anitarian and Civic

A ssistanc e (H C A )

(10 U .S.C. § 401)

H um anita rian A ssistance

(10 U .S.C. § 2551)

Exc ess N on-Le thal Supplie s

(10 U .S.C. § 2547 )

Space A Transport of Relief

Sup plie s (10 U .S.C. § 402 )

CIN Cs Initiative Fund s

CIF (10 U .S.C. § 166a)

Specia l O perations T raining

(10 U .S.C. § 2011)

CIN Cs Initiative Funds

CIF (10 U .S.C. § 166a)

O thers O thers

D isaster R elief

(10 U .S.C. § 404)
To ensure that the DoD operations and activities complement but do not duplicate or frustrate State Department

foreign assistance and development assistance programs, the DoD authorizing legislation usually:

1. Limits the funding levels to relatively small amounts;

2. Requires coordination and approval by the State Department and U.S. embassy in the target nation; and

3. Requires reporting of activities to Congress.

The preceding discussion sets the stage for a more detailed analysis of four major groups of programs and authorities:

1) State Departments Security Assistance programs; 2) the Defense Departments Military Cooperative programs; and 3)

State Departments Development Assistance programs; and 4) the Defense Departments humanitarian programs. We

begin with a look at security assistance.

SECURITY ASSISTANCE

This section will discuss in some detail the State Departments Security Assistance program, and the U.S. militarys

significant supporting role in this program. It will also highlight common legal issues that arise during the course of

conducting security assistance activities.

State Departments Security Assistance Programs Under the FAA.

The DoD Dictionary of Military and Related Terms, Joint Publication 1-02, defines Security Assistance as Groups

of programs authorized by the Foreign Assistance Act of 1961, as amended, and the Arms Export Control Act (AECA) of

1976,

281 as amended, and other related statutes by which the United States provides defense articles, military training, and

other defense related services, by grant, loan, credit or cash sales in furtherance of national policies and objectives. The

Policy of the program is threefold:

Promote peace and security through effective self-help and mutual aid.

Improve the ability of friendly countries and international organizations to deter, and defeat, aggression.

Create an environment of security and stability in developing countries.

For the sake of discussion, we have organized the State Departments Security Assistance programs into three

categories: appropriated programs, non-appropriated programs, and special programs.

Appropriated Programs.

These are programs for which Congress appropriates money in the annual Foreign Operations, Export Financing, and

Related Programs Appropriations Act.

Foreign Military Financing Program (FMFP).

Concept. Eligible governments or international organizations receive Congressionally appropriated

grants and loans to help them purchase U.S. defense articles, services, or training (or design and construction services)

through Foreign Military Sales (FMS)/Foreign Military Construction (FMC) or Direct Commercial Sales (DCS) channels.

Statutory Authority. AECA §§ 23-24 (22 U.S.C. §§ 2763-64). Governing Regulations. Security Assistance Management

Manual (SAMM) (DoD 5105.38-M). Administering Agency. DoD, with provisions for consultation with DoS and

Department of Treasury.

281 22 U.S.C. §§ 2751 et seq.. The purpose of the AECA was to consolidate and revise foreign relations legislation related to reimbursable military

support. It is the statutory basis for the conduct of Foreign Military Sales and Foreign Military Construction Sales, and establishes certain export

licensing controls on Direct Commercial Sales of defense articles and services.

Chapter 14

Security Assistance

266
International Military Education and Training (IMET) Program.

Concept. Provide training to foreign military personnel in the United States, in overseas U.S. military

facilities, and in participating countries on a grant basis. The Expanded IMET Program focuses on civilian control of

the military, military justice systems, codes of conduct, and protection of human rights, and permits training of influential

non-Ministry of Defense civilian personnel. Statutory Authority. FAA §§ 541-45 (22 U.S.C. §§ 2347-47d). Governing

Regulations. AR 12-15; SAMM, at ch. 10. Administering Agency. DoD. The Defense Security Cooperation Agency

(DSCA) has overall responsibility within DoD for implementing IMET. The Defense Institute for International Studies

(DIILS), located at the Naval Justice School, coordinates IMET.

Economic Support Fund (ESF).

Concept. In special economic, political or security circumstances, make loans or grants to eligible

foreign countries for a variety of economic purposes, including balance of payments support, infrastructure and other

capital and technical assistance development projects, and health, education, agriculture, and family planning. Statutory

Authority. FAA §§ 531-35 (22 U.S.C. §§ 2346-46d). Administering Agency. Department of State, to be exercised in

cooperation with the Director of the United States International Development Cooperation Agency and USAID.

Peacekeeping Operations (PKO).

Concept. Provide funds for the Multinational Force and Observers (MFO) implementing the 1979

Egyptian-Israeli peace treaty, for the U.S. contribution to the United Nations Force in Cyprus (UNFICYP), and for other

international peace enforcement and peacekeeping operations. Statutory Authority. FAA §§ 551-53 (22 U.S.C. §§ 2348-

48c). Administering Agency. Department of State.

Non-proliferation, Antiterrorism, Demining, and Related Programs (NADR).

Concept. Captures several related programs in a single account, to include:

Non-proliferation and disarmament fund, which is designed to halt the proliferation of nuclear,

biological, and chemical weapons; destroy or neutralize existing weapons of mass destruction; and limit the spread of

advanced conventional weapons. 22 U.S.C. §§ 5851-61, codifying the Freedom for Russia and Emerging Eurasian

Democracies and Open Markets [FREEDOM] Support Act of 1992, Pub. L. No. 102-511, §§ 501-511, 106 Stat. 3320

(1992).

International Atomic Energy Agency support. The IAEA is primarily responsible for overseeing

safeguard agreements concluded under the Non-Proliferation Treaty of 1968. FAA § 301 (22 U.S.C. § 2221).

Korean Peninsula Energy Development Organization (KEDO), which was established in 1994 to

arrange for financing and construction of light water nuclear reactors for North Korea, with the shipment of fuel oil in the

interim, in exchange for North Koreas dismantling of its nuclear weapons program. FAA § 301 (22 U.S.C. § 2221).

Anti-Terrorism Assistance, which provides specialized training to foreign governments to help increase

their capability and readiness to deal with terrorists and terrorist incidents. FAA § 571-(22 U.S.C. § 2349aa).

Global Humanitarian Demining, which provides funds that are devoted to identifying and clearing land

mines. AECA § 23 (22 U.S.C. § 2763).

Administering Agency. Department of State.

Non-appropriated Programs.

These programs authorize certain activities, but do not require Congressional funding, so there is no need for

annual appropriations for implementation.

Chapter 14

Security Assistance

267
Foreign Military Sales (FMS) Program and Foreign Military Construction (FMC) Program.

Concept. Eligible recipient governments or international organizations purchase defense articles,

services, or training (or design and construction services), often using grants provided under the Foreign Military

Financing program discussed above, from the United States government on the basis of formal contracts or agreements

(normally documented on a Letter of Offer and Acceptance (LOA) and managed by DoD as cases). The articles or

services come either from DoD stocks or new procurements under DoD-managed contracts. FMS cases must be managed

at no cost to the U.S. Government. Recipient countries are charged an administrative surcharge to pay for the costs of

administering the program, including most personnel costs. Statutory Authority. AECA §§ 2122 (22 U.S.C. §§ 2761-62)

(authorizing FMS); AECA § 29 (22 U.S.C. § 2769) (authorizing FMC). Governing Regulations. SAMM. Administering

Agency. Department of Defense (DoD).

Direct Commercial Sales (DCS)

Concept. Eligible governments or international organizations purchase defense articles or services

under a Department of State-issued license directly from U.S. industry, often using grants provided under the Foreign

Military Financing program discussed above. No management of the sale by DoD occurs (unlike FMS). Statutory

Authority. AECA § 38 (22 U.S.C. § 2778). Governing Regulations. 22 C.F.R. §§ 120-30 (comprising chapter entitled

International Traffic in Arms Regulations (ITAR)). The SAMM, at 202-6 - 202-14, includes a reprint of the United

States Munitions List (USML). The USML is a list containing items considered defense articles and defense services

pursuant to AECA §§ 38 and 47(7) which are therefore strictly controlled. Administering Agency. Departments of

State, Commerce, Treasury.

Reciprocal Training, 22 U.S.C. § 2770a.

When conducted in accordance with a bilateral international agreement, U.S. military units may train

and support foreign units (e.g., at combat training centers) provided that the foreign country reciprocates with equivalent

value training within one year. If the foreign country has not reciprocated, they are expected to pay for the value of the

training received.

Excess Defense Articles (EDA) Provisions.

General. EDA are essentially defense articles no longer needed by the U.S. armed forces. There is a general

preference to provide EDA to friendly countries whenever possible rather than having them procure new items. Only

countries that are justified in the annual Congressional Presentation Document by the Department of State or separately

justified in the FOAA during a fiscal year are eligible to receive EDA. EDA must be drawn from existing stocks.

Congress requires 15 days notice prior to issuance of a letter of offer if the USG sells EDA. However, most EDA is

transferred on a grant basis. No DoD procurement funds may be expended in connection with an EDA transfer. The

transfer of these items must not adversely impact U.S. military readiness. EDA are priced on the basis of their condition,

with pricing ranging from 5 to 50 percent of the items original value. The sale/grant of EDA must include an agreement

for the recipient country to pay the costs of packing, crating, handling, and transportation (PCH&T). On an exceptional

basis, the President may provide transportation (on a space available basis), in accordance with FAA § 516(e) (22 U.S.C.

§ 2321j(e)). Finally, the annual value of EDA is limited to $350 million of the articles current value. FAA § 516(g)(1)

(22 U.S.C. § 2321j(g)(1)). Governing Regulations. SAMM, chapter 11. Administering Agency. The State Department

writes the appropriate presidential determination. After signature by the President, DoD administers the drawdown, up to

the specified dollar value.

Presidential Emergency Drawdown Authorities.

Military Emergencies: FAA § 506(a)(1) (22 U.S.C. § 2318(a)(1)). The President may draw down defense

articles, defense services, and military education and training if an unforeseen emergency arises that requires immediate

military assistance that cannot be met under any other section. The authority is limited to $100 million per fiscal year.

Other Emergencies: FAA § 506(a)(2) (22 U.S.C. § 2318(a)(2)). If the President determines that it is in the

United States national interest to drawdown to support counternarcotics, disaster relief, or refugee and migration

Chapter 14

Security Assistance

268
assistance, he may draw down article and services from the inventory and resources of any agency of the U.S. and

military education and training from DoD. Certain restrictions apply. The aggregate value of articles, services, and

military education and training cannot exceed $150 million in any fiscal year. Not more than $75 million may be

provided from the inventory and resources of DoD. Not more than $75 million may be provided for international

narcotics control assistance. Not more than $15 million may be provided to support DoD-sponsored humanitarian

projects associated with POW/MIA recovery operations in Vietnam, Cambodia, and Laos.

Peacekeeping Emergencies: FAA § 552(c) (22 U.S.C. § 2348a(c)). With respect to peacekeeping operations,

the President has emergency authority to transfer funds if he determines that, as the result of an unforeseen emergency, it

is in our national interests to provide assistance. He may also direct the drawdown of commodities and services from the

inventory and resources of any U.S. Government agency of an aggregate value not to exceed $25 million in any fiscal

year.

The Militarys Role in Security Assistance.

Although the State Department retains responsibility for the supervision of all Security Assistance programs and

actually administers certain programs, DoD has the greatest involvement in Security Assistance of any department within

the Executive Branch. DoD expends approximately 20,000 man-years per year on Security Assistance. Among the

agencies within DoD which participate in providing Security Assistance are:

Defense Security Cooperation Agency (DSCA). DSCA was created by DoD Directive 5105.38 as a

separate defense agency under the direction, authority, and control of the Assistant Secretary of Defense

(International Security Affairs). Among other duties, DSCA is responsible for administering and

supervising DoD security assistance planning and programs.

Defense Institute of Security Assistance Management (DISAM). DISAM is a schoolhouse operating under

the guidance and direction of the Director, DSCA. According to DoD Directive 2140.5, the mission of

DISAM is as follows: The DISAM shall be a centralized DoD activity for the education and training of

authorized U.S. and foreign personnel engaged in security assistance activities. In addition to resident

courses, DISAM prepares a valuable publication entitled The Management of Security Assistance, and the

periodical DISAM Journal. DISAM is located at Wright-Patterson AFB, OH.

The Military Departments.

Secretaries of the Military Departments. Advise the Secretary of Defense on all Security Assistance

matters related to their Departments. Functions include conducting training and acquiring defense

articles.

Department of the Army. Consolidates its plans and policy functions under the Deputy Undersecretary

of the Army (International Affairs). Operational aspects are assigned to Army Material Command. The

executive agent is the U.S. Army Security Assistance Command.

Department of the Navy. The principal organization is the Navy International Programs Office (Navy

IPO). Detailed management occurs at the systems commands located in the Washington, D.C. area and

the Naval Education and Training Security Assistance Field Activity in Pensacola, Florida.

Department of the Air Force. Office of the Secretary of the Air Force, Deputy Under Secretary for

International Affairs (SAF/IA) performs central management and oversight functions. The Air Force

Security Assistance Center oversees applicable FMS cases, while the Air Force Security Assistance

Training Group (part of the Air Education Training Group) manages training cases.

Security Assistance Organizations (SAOs). The term encompasses all DoD elements located in a foreign

country with assigned responsibilities for carrying out security assistance management functions. It includes

military missions, military groups, offices of defense cooperation, liaison groups, and designated defense

attaché personnel. The primary functions of the SAO are logistics management, fiscal management, and

Chapter 14

Security Assistance

269
contract administration of country security assistance programs. The Chief of the SAO answers to the

Ambassador, the Commander of the Unified Command (who is the senior rater for efficiency and

performance reports), and the Director, DSCA. The SAO should not be confused with the Defense Attachés

who report to the Defense Intelligence Agency.

Prohibitions and Potential Legal Issues.

General.

Congress appropriates funds for Security Assistance in its annual Foreign Operations, Export

Financing, and Related Programs Appropriations Act. Security Assistance funds are often referred to as Title 22 money

after the authorizing U.S. Code provisions. DoD receives its money under a separate appropriation (Title 10 money).

General principles of fiscal law restrict the expenditure of funds to the purpose for which those funds were appropriated.

Critical for judge advocates to remember: activities, programs and operations which are essentially Security

Assistance, and which should therefore be funded with State Department Title 22 money, may not be funded with

Defense Department Title 10 money.

Unauthorized Training of Foreign Personnel.

Congressional Purpose. Training of foreign military forces should occur through the IMET, an FMS

case, or some other specifically authorized program. Security Assistance programs that furnish training must not be

supported by appropriations intended to be used for the operation and maintenance (O&M) of United States forces.

(Remember the 1986 GAO Honduras opinions.) The law defines training very broadly: [T]raining includes formal or

informal instruction of foreign students in the United States or overseas by officers or employees of the United States,

contract technicians, or contractors (including instruction at civilian institutions), or by correspondence courses, technical,

educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military

advice to foreign military units and forces. AECA § 47(5) (22 U.S.C. § 2794(5). The FAA § 644 (22 U.S.C. § 2403)

contains a substantially similar definition, though training exercises is omitted.

Not all activity that appears to be training of foreign personnel is considered to be security assistance

training. Providing foreign armed forces with interoperability, safety, and familiarization information is not security

assistance training. [M]inor amounts of interoperability and safety instruction [do] not constitute training as that term

is used in the context of security assistance, and could therefore be financed with O&M appropriations. The Honorable

Bill Alexander, House of Representatives, B-213137, Jan. 30, 1986 (unpublished GAO opinion). Additionally, if the

primary purpose of the exercise or activity is to train U.S. troops, then the activity is not considered to be security

assistance training of foreign forces. In our view, a U.S. military training exercise does not constitute security

assistance: as long as (1) the benefit to the host government is incidental and minor and is not comparable to that

ordinarily provided as security assistance and (2) the clear primary purpose of the exercise is to train U.S. troops. Gen.

Fred F. Woerner, B-230214, Oct. 27, 1988.

The FAA also contains special prohibitions concerning the training of foreign police. No FAA funds

shall be used to provide training or advice, or provide any financial support, for police, prisons, or other law enforcement

forces for any foreign government or any program of internal intelligence or surveillance on behalf of any foreign

government within the United States or abroad. FAA § 660(a) (22 U.S.C. § 2420(a)). FAA § 660(b) exempts from the

general prohibition:

(a) assistance, including training, relating to sanction monitoring and enforcement, and

(b) assistance provided to reconstitute civilian police authority and capability in the post-conflict

restoration of host nation infrastructure for the purposes of supporting a nation emerging from

instability, and the provision of professional public safety training, to include training in internationally

recognized standards of human rights, the rule of law, anti-corruption, and the promotion of civilian

police roles that support democracy.

Chapter 14

Security Assistance

270
The general prohibition also does not apply to longtime democracies with no standing armed forces and

with good human rights records.

Unauthorized Defense Services of a Combatant Nature.

Personnel performing defense services sold under this chapter may not perform any duties of a

combatant nature, including any duties related to training and advising that may engage United States personnel in

combat activities, outside the United States in connection with the performance of those defense services. AECA §

21(c)(1) (22 U.S.C. §2761(c)(1)).

Eligibility Problems With the Foreign Country.

Expropriation of Property Owned by U.S. Citizens. FAA § 620(e)(1) (22 U.S.C. § 2370(e)(1)).

Involvement in Nuclear Transactions. FAA § 669-70 (22 U.S.C. § 2429-29a ).

In Arrears on Debts. FAA § 620(q) (22 U.S.C. § 2370(q)).

Support to prevent International Terrorism. FAA § 620A (22 U.S.C. § 2371) and AECA § 40 (22

U.S.C. § 2780).

Transfer, Failing to Secure, or Use of Defense Articles, Services, or Training for Unintended Purposes.

FAA § 505 (22 U.S.C. § 2314).

Has by military coup or decree deposed its duly elected Head of Government. FOAA 00, § 508.

Congress requires special notification to Congress before obligating funds for Colombia, Haiti, Liberia,

Pakistan, Panama, Peru, Serbia, Sudan, or the Democratic Republic of the Congo. FOAA 00, § 520.

Haiti. Congress limited assistance to Haiti until the Secretary of State certifies that Haiti is conducting

thorough investigations into extra-judicial killings and taken action to remove from the National Police those individuals

credibly alleged to engage in gross human rights violations. The limitation does not prohibit providing humanitarian,

electoral, counter-narcotics, or law enforcement assistance. FOAA 00, §559.

Weapons-Specific Prohibitions.

Tank Ammunition. Sales of depleted uranium tank rounds are limited to countries that are NATO

members, Taiwan, and countries designated as a major non-NATO ally. FAA, § 620G (22 U.S.C. § 2378a).

Stingers. Congress continued the annual provision prohibiting making available Stingers to any country

bordering the Persian Gulf (Iraq, Iran, Kuwait, Saudi Arabia, Qatar, United Arab Emirates, and Oman), except Bahrain.

Bahrain may buy Stingers on a one-for-one replacement basis. FOAA 00 § 530.

For the restrictions on the transfer of white phosphorus munitions, napalm, and RCA, see SAMM, at

203-3.

Summary of Security Assistance.

The key point to remember about Security Assistance is that the State Department provides the overall policy

guidance even though U.S. military agencies administer many of the individual programs. Security assistance is a foreign

policy tool employed by the Administration and Congress, and thus programs, funding, and eligible recipients will

frequently change as political realities change. Security Assistance must be funded with State Departments Annual

Foreign Operations Funds, commonly referred to as Title 22 money. Finally, despite the large role that the U.S. military

plays in administering the various programs, the Defense Departments Title 10 money may not be used to fund these

security assistance programs.

Chapter 14

Security Assistance

271
DEFENSE DEPARTMENTS MILITARY COOPERATIVE PROGRAMS

In addition to its substantial support role in the administration of Security Assistance programs, the U.S. military

executes several cooperative programs funded with Title 10 Defense Department O&M money. The majority of these

cooperative programs are statutorily based. The programs are organized into three categories: training foreign forces,

logistic support to foreign forces, and contacts and cooperation with foreign militaries.

Training Foreign Forces

Special Operations Forces, 10 U.S.C. § 2011. Provided that the training primarily benefits U.S. special

operations forces, SOF may train, and train with, friendly foreign forces. U.S. forces may pay incremental expenses

incurred by friendly developing countries as the direct result of such training. U.S. Special Operations Command has

interpreted this authority to mean that the training must occur overseas.

CINC Initiative Funds, 10 U.S.C. § 166a. The Chairman, JCS, provides funds to Combatant Commanders for a

wide variety of purposes, including military education and training of foreign forces. No more than $2 million may be

expended for this training per fiscal year worldwide. This fund, referred to as CIF money, operates essentially as a

contingency fund that permits the CINC to pay for initiatives. The CIF money provides the CINC with flexibility to

cover expenses which, for one reason or another, cannot be covered by the designated pot of money.

Logistics Support for Foreign Militaries

Acquisition and Cross-Servicing Agreements (ACSA), 10 U.S.C. §§ 23412350. DoD authority to acquire logistic

support without resort to commercial contracting procedures and to transfer support to foreign militaries outside of the

AECA. Under the statutes, after consulting with the State Department, DoD may enter into agreements with NATO

countries, NATO subsidiary bodies, other eligible countries, the UN, and international regional organizations of which the

U.S. is a member for the reciprocal provision of logistic support, supplies, and services. Acquisitions and transfers are on

a cash reimbursement or replacement-in-kind or exchange of equal value basis. Foreign militaries often prefer this

method of obtaining logistical support because they do not have to pay the administrative fees associated with sales under

the Foreign Military Sales program, and it is quicker and often more flexible.

The present Acquisition and Cross-Servicing (ACSA) authorities have their origins in the North Atlantic Treaty

Organization (NATO) Mutual Support Act of 1979 (NMSA), which was originally enacted on 4 August 1980 (P.L. 96-

323). Before passage of this legislation, U.S. forces acquired and transferred logistic support through highly formalized

means. Logistic support, supplies and services were acquired from foreign governments through commercial contracting

methods and application of U.S. domestic procurement laws and regulations (i.e., offshore procurement agreements).

Allied requests for logistic support from U.S. forces could only be processed as Foreign Military Sales (FMS) cases under

the Arms Export Control Act (AECA). Reductions in the numbers of U.S. logistics forces stationed in the European

theater caused greater reliance on host nation support. Allied government sovereignty concerns resulted in refusal to

accept U.S. commercial contracting methods. Application of FMS procedures to allied requests for routine logistic

support caused additional friction. Finally, DoD turned to Congress for legislative relief.

Through passage of the NMSA, Congress granted DoD a special, simplified authority to acquire logistic support,

supplies, and services without the need to resort to traditional commercial contracting procedures. In addition, the NMSA

also authorized DoD, after consultation with the State Department, to enter into cross-servicing agreements with our

NATO allies and with NATO subsidiary body organizations for the reciprocal provision of logistic support. In so doing,

Congress granted DoD a second acquisition authority as well as the authority to transfer logistic support outside of AECA

channels.

Military Contact and Cooperative Authorities

Bilateral or Regional Conference, Seminar or Meeting, 10 U.S.C. § 1051. CINCs may pay for the travel,

subsistence, and similar personal expenses of defense personnel of developing countries in connection with the attendance

of such personnel at a bilateral or regional  meeting. To qualify, the meeting must take place within the area of

Chapter 14

Security Assistance

272
responsibility of the unified combatant command in which the travelers country is located, or in the United States or

Canada if sponsored by a U.S.-based CINC.

Latin American Cooperation, 10 U.S.C. § 1050. The Secretary of a Department may use these funds to pay for

the travel, subsistence, and special compensation of officers and students of Latin American countries and other

expenses that the Secretary considers necessary for Latin American Cooperation. These funds are held by the service

secretaries and then allocated to various commands and offices by service channels, not by Joint channels. Some

commands and offices within each service have published regulations concerning the expenditure of these funds, others

have not. Thus the guidance varies between the services and within each service. Due to extremely limited guidance

contained in the statute, and the variance of regulatory instruction, this is an area which requires careful review and

consideration by Judge Advocates. Often, analysis by analogy is the only available course of action. In other words, in

the absence of a regulation that is on point, the Judge Advocate should rely on a regulation covering a similar type of

expenditure. For example, the Judge Advocate may wish to adhere to the rules contained in the Joint Travel Regulation

for guidance on what the rule should be concerning an expenditure for a Latin American traveler.

Combined Exercises, 10 U.S.C. § 2010. The Secretary of Defense, through the CINCs, may pay the

incremental expenses of a developing country that are incurred by that country as the direct result of participation in a

bilateral or multilateral military exercise. Incremental expense means the reasonable cost of goods and services

consumed by the developing country as a direct result of participating in the exercise with the U.S.. It includes costs for

rations, fuel, training ammunition, and transportation. It does not include pay, allowances, and other normal costs of

such countrys personnel.

Military-to-Military Contacts and Comparable Activities, 10 U.S.C. § 168. This statute authorizes the Secretary

of Defense, usually through the CINCs, to conduct military-to-military contacts and comparable activities that are

designed to encourage a democratic orientation of defense establishments and military forces of other countries.

Examples of the activities specifically listed in the law for which funds may be expended include the activities of

contact teams; military liaison teams; exchanges of civilian or military personnel between defense establishments and

units; and costs of seminars, conferences and publications. These contacts would normally be initiated by CINCs of

unified commands based on needs in their AOR.

CINC Initiative Fund, 10 U.S.C. § 166a. As stated above, the Chairman, JCS, provides funds to Combatant

Commanders for a wide variety of purposes, including the payment of costs for foreign forces to participate in bilateral,

regional, and multilateral conferences, meetings and exercises. This statute provides the CINC with authority to spend

money specifically set aside to cover unprogrammed contingencies and initiatives. It works sort of as an emergency

contingency fund that pays for expenses not otherwise payable (usually for budgetary reasons, not authority reasons) from

other budgets.

STATE DEPARTMENTS DEVELOPMENT ASSISTANCE PROGRAMS

This section will provide a very brief description of the State Departments Developmental Assistance programs, and

the U.S. militarys relatively minor and infrequent role in these programs, particularly, in the provision of Foreign

Disaster Relief.

General

The State Department supervises and conducts a large number of activities authorized by Part I of the FAA

designed to strengthen the socio-economic well being of the civilian population. There are too many activities to list

them all, but a partial list of the primary programs will provide the reader with a flavor for the wide range of objectives

envisioned by this legislation. The activities under the Development Assistance program include, but are not limited to:

Agriculture Trade credit Overseas Private Investment Corp.

Rural development Endangered species Disadvantaged children in Asia

Nutrition Shale development Famine prevention

Population control & health Tropical forests Disaster Assistance

Chapter 14

Security Assistance

273
Education Human rights International Narcotics Control

Energy Housing guarantees Loan guarantees

Cooperatives Central America Democracy, Peace & Development

Integration of women into the economy Protection of the environment & natural resources

Economic & Democratic Development for the Independent States of the Former Soviet Union

The militarys role in the provision of development assistance through the FAA is relatively limited when

compared to its role in the provision of security assistance. Nevertheless, from time to time, agencies charged with the

primary responsibility to carry out activities under this authority, call upon the U.S. military to render assistance. An

example of participation by the U.S. military would be action taken in response to a request for disaster assistance from

the Office for Foreign Disaster Assistance (OFDA). OFDA often asks the U.S. military for help in responding to natural

and man-made disasters overseas. Key point: generally, costs incurred by the U.S. military pursuant to performing

missions requested by other federal agencies under the FAA, Development Assistance provisions, must be reimbursed to

the military pursuant to FAA § 632 or pursuant to an order under the Economy Act.

Foreign Disaster Relief In Support of OFDA

The United States has a long and distinguished history of aiding other nations suffering from natural or

manmade disasters. In fact, the very first appropriation to assist a foreign government was for disaster relief.282 The

current statutory authority continuing this tradition is located in the Foreign Assistance Act.283 For foreign disaster

assistance, Congress granted the President fiscal authority to furnish relief aid to any country on such terms and

conditions as he may determine.

284 The Presidents primary implementing tool in carrying out this mandate is USAID.

The USAID is the primary response agency for the U.S. Government to any international disaster.285

Given this fact, DoD traditionally has possessed limited authority to engage in disaster assistance support. In the realm of

Foreign Disaster Assistance, the primary source of funds should be the International Disaster Assistance Funds.286 The

Administrator of the USAID controls these funds because the President has designated that person as the Special

Coordinator for International Disaster Assistance.287 In addition, the President has designated USAID as the lead agency

in coordinating the U.S. response for foreign disaster.288 Normally these funds support NGO and PVO efforts in the

disaster area. However, certain disasters can overwhelm NGO and PVO capabilities, or the military possess unique skills

and equipment to accomplish the needed assistance. In these situations, the State Department, through OFDA, may ask

for DoD assistance. Funding in these cases comes from the International Disaster Assistance fund controlled by OFDA.

DoD is supposed to receive full reimbursement from OFDA when they make such a request. DoD access to these funds

to perform Disaster Assistance missions occurs pursuant to § 632 FAA.

Natural or manmade disasters have increasingly become the basis for military operations. The object of

foreign disaster relief operations is to provide sufficient food, water, clothing, shelter, medical care, and other life support

to victims of natural and man-made disasters. To accomplish this objective, the military may be tasked to establish a

secure operational environment and begin to support PVO/NGO supply, medical, and transportation systems. Recent

282 This appropriation was for $50,000 to aid Venezuelan earthquake victims in 1812. Over 25,000 people died in that tragedy. Act of 8 May 1812, 12th

Cong., 1

st Sess., ch. 79, 2 Stat. 730.

283 Congressional policy is espoused in 22 U.S.C. § 2292(a) as follows:

The Congress, recognizing that prompt United States assistance to alleviate human suffering caused by natural and manmade disasters is an

important expression of the humanitarian concern and tradition of the people of the United States, affirms the willingness of the United States to

provide assistance for the relief, and rehabilitation of people and countries affected by such disasters.

284 22 U.S.C. § 2292(b).

285 E.O. 12966, 60 F.R. 36949 (July 14, 1995).

286 FAA §§ 491 - 495K, 22 U.S.C. §§ 2292 - 2292q.

287 See FAA § 493, 22 U.S.C. § 2292b and E.O. 12966, Sec. 3, 60 F.R. 36949 (July 14, 1995). See also E.O. 12163, section 1-102(a)(1), 44 F.R. 56673

(Sept. 29, 1979), reprinted as amended in 22 U.S.C.A. § 2381 (West Supp. 1996).

288 See generally, E.O. 12966, 60 F.R. 36949 (July 14, 1995).

Chapter 14

Security Assistance

274
examples of such operations include SEA ANGEL in Bangladesh, SUPPORT HOPE in Rwanda, RESTORE HOPE in

Somalia, PROVIDE COMFORT in Northern Iraq, and STRONG SUPPORT in response to Hurricane Mitch in Central

America.289 In addition, foreign disaster relief operations may coexist with other operations, and arise in unexpected

contexts. For example, in September 1994, the U.S. Ambassador to Haiti declared that the corruption and repression in

the de facto regime had caused a man-made state of disaster in that country. The declaration opened the door for

additional relief, rehabilitation, and reconstruction assistance (and funds) for Haiti.

DEFENSE DEPARTMENTS MILITARY HUMANITARIAN PROGRAMS

Following the 1984 GAO Honduras opinion, Congress, recognizing the need for continued U.S. military involvement

with the provision of certain limited humanitarian types of activities to developing nations, began passing legislation in

the late 1980s intended to permit humanitarian activities by the military. The legislation resulted in Title 10 authorized,

and DoD funded, military programs intended to complement the goals and objectives of the State Departments

development assistance programs.

Before discussing the military programs, however, we should understand the policy underlying these programs, and

possible trade-offs involved. Why is the Department of Defense involved in what looks like Department of State business

that is not directly related to national security? Many civilian policy makers and military commanders argue that there

exists a nexus between providing basic human needs and national security. They believe that: 1) nations that fail to

provide basic human needs often fail to maintain the support of their citizens; 2) insurgencies thrive in areas where the

government can not or will not provide basic services; and 3) the provision of humanitarian assistance by the U.S. forces

helps teach the proper role of the military in a democracy to developing countries. U.S. forces providing humanitarian

services to the civilian population demonstrate to host nation forces that the military serves the civilian population.

The U.S. military also benefits from its participation in humanitarian activities. Such activities: 1) provide a method

for introducing U.S. forces in areas where they may not otherwise have access; 2) reduce the number of permanent

forward deployed troops; and 3) provide training opportunities that are impossible to duplicate in the U.S.

Legislative authorities: Military Humanitarian Operations

Humanitarian and Civic Assistance (HCA) 10 U.S.C. § 401.

The enactment of HCA legislation is a direct Congressional response to the 1984 GAO Honduras

Opinion. Congress recognized the benefits of permitting U.S. armed forces to conduct limited HCA projects.

The typical sequence for the initiation and execution of HCA projects is as follows. The embassy

country teams and the service components of the regional CINCs nominate HCA projects for their respective countries to

the CINC having responsibility for that country. The CINC, usually at an annual HCA conference, develops an order of

merit list. Proposed HCA projects that fall below the funding cut line may not be completed because the funds were

unavailable. HCA funding comes directly from the Services to the CINCs. The money is Service O&M funds that are

fenced off by the Services specifically for HCA. Each service is responsible for funding a particular CINC (e.g., Army:

SOUTHCOM & EUCOM).

Congress imposed certain restrictions on the conduct of HCA by the U.S. military. HCA projects must

be approved by the Secretary of State. The security interests of both the U.S. and the receiving nation must be promoted.

The mission must serve the basic economic and social needs of the people involved. HCA must complement but not

duplicate any other form of social or economic assistance. The aid may not be provided to any individual, group or

organization engaged in military or paramilitary activity.

HCA funds are used to pay for expenses incurred as a direct result of the HCA activity. These

expenses include: consumable materials, equipment leasing, supplies, and necessary services. Pursuant to DoDD 2205.2,

289 Operations Sea Angel and Strong Support were traditional Foreign Disaster Relief Operations where the affected Governments requested U.S.

assistance. Operations Support Hope, Restore Hope, Provide Comfort presented additional challenges because they were largely non-permissive in

nature. In the cases of the last three examples, the United Nations essentially conducted a humanitarian intervention.

Chapter 14

Security Assistance

275
Humanitarian and Civic Assistance, expenses as a direct result do not include costs associated with the military

operations which likely would have been incurred whether or not the HCA was provided, such as: transportation,

military personnel, petroleum oil and lubricants, and repair of U.S. government equipment. HCA expenditures are

reported each year to Congress by country, type and amount.

The statute lists four kinds of activities that may be performed as traditional HCA:

Medical, dental, and veterinary care provided in rural areas of a country;

Construction of rudimentary surface transportation systems.

Well drilling and construction of basic sanitation facilities.

Rudimentary construction and repair of public facilities.

Legal issues that typically arise during the conduct of HCA projects include the following:

Furnishing and equipping newly constructed buildings. Engineer units that complete a construction

project desire to leave behind a turn-key facility that is ready to be used. HCA authority, however, does not authorize

the purchase of medical equipment for installing in a new building designed to be a clinic, nor does it authorize the

purchase of school desks, blackboards, and books to be placed in a building designed to be a school house. The judge

advocate could suggest alternative funding sources for the desired equipment. For example, USAID may have funds

available to equip the new building. DoD may have excess non-lethal equipment it can transfer through USAID to the

host nation. Private and non-governmental organizations often have funds or equipment available that could be used to

furnish the building. Finally, U.S. military personnel, on a truly volunteer basis and on their personal time, could use

scrap pieces of lumber to build desks, blackboards, etc., to furnish a building.

Donation of unused materials, supplies and minor equipment. Sometime the U.S. military unit may

wish to leave behind small tools or excess construction materials or medical supplies that were not consumed during the

HCA project. As a general rule, the U.S. military cannot leave tools, supplies or materials behind with the local

authorities. The problem with leaving these items behind with the local authorities is that once the unit leaves, there is no

longer a nexus to training. Leaving these items behind (in significant quantities) amounts to foreign aid which should be

funded with State Department Title 22 funds under the FAA. If there were no way to economically or practically save the

items for a follow-on HCA exercise, then they could be declared excess and disposed of through the normal procedures.

Ultimately, USAID would take possession of the items and distribute them to the local authorities. Remember: USAID

is authorized to provide Developmental Assistance to foreign governments; military units are not and thus cannot provide

the items directly to the local authorities.

Promotion of operational readiness skills. The issue that arises more frequently than any other is

whether or not the specific operational readiness skills of the members of the unit participating are being promoted by the

HCA project. The promotion of these skills is a statutory requirement. The judge advocate should ask: are the skills

being utilized during the HCA project within the units METL? What is the ratio of U.S. participation relative to foreign

military participation? Are they relying too heavily on foreign civilian contractor participation? DoDD 2205.2 provides

additional guidance in this regard.

De minimis HCA. Sometimes, during the course of a combined exercise in a foreign country, an

unexpected opportunity to perform minor humanitarian and civic assistance arises. For example, during the conduct of an

infantry platoon level combined exercise, a young girl in the local village near the exercise site may require minor

medical attention to set a broken bone. 10 U.S.C. § 401(c)(2) authorizes the military commander to permit the treatment

of the child by the platoons assigned doctor or medic. The costs associated with this treatment would likely be minimal

and would be paid for from the units O&M funds. This kind of activity is referred to as de minimis HCA. Only HCA

Chapter 14

Security Assistance

276
amounting to minimal expenditures may be provided. Although minimal expenditures are not defined in the statutes,

DoD Directive 2205.2 provides guidance in determining what minimal means.290

Demining. Title 10 U.S. Code § 401(e)(5)

The HCA statute also provides for activities relating to the furnishing of education, training, and

technical assistance with respect to the detection and clearance of landmines. This activity is contained within the HCA

statute, but it is not restricted by the rules pertaining to traditional HCA. In fact, many of the rules pertaining to demining

are completely contrary to those pertaining to traditional HCA. Thus, for purposes of our discussion, it is more logically

consistent to categorize § 401 demining as a separate kind of activity rather than associating it with traditional HCA.

Some of the rules pertaining to demining follow. U.S. forces are not to engage in the physical

detection, lifting, or destroying of landmines (unless it is part of a concurrent military operation other than HCA). Unlike

traditional HCA activities, assistance with regard to demining must be provided to military or armed forces. Unlike

HCA, equipment, services and supplies acquired for demining, including non-lethal, individual, or small-team landmine

clearing equipment or supplies may be transferred to the foreign country.

Humanitarian Assistance, 10 U.S.C. § 2551.

Authorizes use of funds for transportation of humanitarian relief and for other humanitarian purposes

worldwide. This authority is often used to transport U.S. Government donated goods to a country in need. (10 U.S.C. §

402 applies when relief supplies are supplied by non-governmental and private voluntary organizations, see below.)

Other humanitarian purposes worldwide is not defined in the statute. Generally, if the contemplated activity falls

within the parameters of HCA under 10 U.S.C. § 401, then the HCA authority should be used. This section primarily

allows more flexibility in emergency situations. HCA generally requires pre-planned activities and must promote

operational readiness skills of the U.S. participants. Section 2551 does not require the promotion of operational readiness

skills of the U.S. military participants.

Excess non-lethal supplies: humanitarian relief, 10 U.S.C. § 2547.

Sometimes the provision of troops and transportation alone is not enough. This statute allows DoD to

provide excess non-lethal supplies for humanitarian relief. Excess property may include any property except: real

property, weapons, ammunition, and any other equipment or material that is designed to inflict bodily harm or death.

Excess property is that property which is in the Defense Reutilization and Management Office (DRMO) channels. If the

required property is in the excess property inventory, it is transferred to USAID, as agent for the Department of State, for

distribution to the target nation. This statute does not contain the authority to transport the items, though it may be

provided under authority of 10 U.S.C. § 2551, above.

Transportation of humanitarian relief supplies to foreign countries, 10 U.S.C. § 402.

This statute authorizes the transportation of non-governmental privately donated relief supplies. It is

administered by DoS and DSCA. The relief supplies are transported on a Space-A basis under certain conditions: 1)

supplies must be in useable condition; 2) supplies must be suitable for humanitarian purposes, and 3) adequate

arrangements must have been made for their distribution in country. Once in-country, the supplies may be distributed by

any U.S. government agency, a foreign government agency, an international organization, or a private nonprofit

organization. In light of the fact that the supplies are transported on a Space-A basis, no separate funding is necessary.

However, reports must be submitted to Congress.

Foreign Disaster Assistance, 10 U.S.C. § 404.

290 See "Definitions" where DoD explains that a commander is to use reasonable judgment in light of the overall cost of the operation in which the

expenditure is incurred, taking into account the amount of time involved and considering congressional intent. DoD then gives two examples of De

Minimis. (1) A unit's doctor examining villagers for a few hours, administering several shots and issuing some medicine but not a deployment of a

medical team providing mass inoculations. (2) Opening an access road through trees and underbrush for several hundred yards, but not asphalting a

roadway.

Chapter 14

Security Assistance

277
In consultation with the Secretary of State, USAID is the lead agency for foreign disaster relief, with the

primary source of funding being the International Disaster Assistance Funds, 22 U.S.C. § 2292-2292k.

DoD has limited authority to engage in disaster assistance. The President may direct DoD through the

Secretary of Defense to respond to manmade or natural disasters. DoDs participation must be necessary to save lives.

Assistance may include: transportation, supplies, services, and equipment. The President must notify Congress within 48

hours after the commencement of the assistance. The notice must include: The manmade or natural disaster involved, the

threat to human lives presented, the U.S. military personnel and material resources involved or expected to be involved,

disaster relief being provided by other nations or organizations, and the expected duration of the assistance activities.

Because of the authority provided in 10 U.S.C. § 2551, this authority is rarely used.

CINC Initiative Funds, 10 U.S.C. § 166a.

This authority provides the CINCs with a great deal of legal flexibility to conduct humanitarian

operations and activities. The statute specifically lists Humanitarian and civil assistance as an authorized activity.

Funding sources: Overseas Humanitarian, Disaster, and Civic Assistance (OHDACA)

In an attempt to bring some order to the scattered authorities and funding sources for military humanitarian

programs, Congress began appropriating funds into an account labeled Overseas Humanitarian, Disaster, and Civic

Assistance (OHDACA) account. OHDACA funds are generally used to pay for operations and activities which are

authorized by Title 10 § 2551, Humanitarian Assistance, and Demining under 10 U.S.C. § 401. Even though the law

specifically lists HCA and Disaster Relief as appropriate uses for the fund, the actual practice is that OHDACA funds are

used to pay for § 2551 authorized activities. Traditional HCA (i.e., all activities other than Demining) are separately

funded.

CONCLUSION

Judge advocates must ensure that the militarys participation in a Title 22 foreign assistance activity or in a Title 10

military cooperation or humanitarian operation accomplishes the commanders intent and complies with U.S. fiscal law,

regulations, and policy.

Necessity For the Judge Advocate to Get It Right

Military commanders and staffs often plan for complex, multi-faceted, joint and combined operations, exercises

and activities overseas. Not only do foreign allies participate in these activities, but so too do other U.S. government

agencies, international non-governmental organizations, U.S. Guard and Reserve components. Not surprisingly, these

operations, exercises, and activities are conducted under the bright light of the U.S. and international press, and thus

precise and probing questions concerning the legal authority for the activity are certain to surface. Congress will often

have an interest in the location, participants, scope, and duration of the activity. Few operations the U.S. military

conducts overseas escape Congressional interest. Thus, it is imperative that the commander and his or her staff be fully

aware of, and appreciate the significance of, the legal basis for the conduct of the operation, exercise, or activity which

benefits a foreign nation.

Judge advocates bear the primary responsibility for ensuring that all players involved, but especially the U.S.

commander and his or her staff, understand and appreciate the legal basis for the activity. This fundamental

understanding will shape all aspects of the activity, especially a determination of where the money will come from to pay

for the activity. Misunderstandings concerning the source and limits of legal authority and the execution of activities may

lead to a great deal of wasted time and effort to correct the error and embarrassment for the command in the eyes of the

press and the Congress. At worst, such misunderstandings may lead to violations of the Anti-deficiency Act, and possible

reprimands or criminal sanctions for the responsible commanders and officials.

How the Judge Advocate Can Get It RightEarly Judge Advocate Involvement.

Chapter 14

Security Assistance

278
Judge advocates must be part of the planning team from the inception of the concept, through all planning

meetings, through execution of the operation or activity. It is too late for the judge advocate to review the operations plan

the week or even the month before the scheduled event. Funding, manpower, logistics, transportation, and diplomatic

decisions have long been made and actions, based on those decisions, have already been executed weeks in advance of the

activity.

In short, the judge advocate must understand the statutory, regulatory and policy framework that applies to

military operations and activities that benefit foreign nations. More importantly, the judge advocate must ensure that the

commander understands what that legal authority is and what limits apply to the legal authority. The judge advocate must

then ensure that the commander complies with such authorities.

Chapter 14

Security Assistance

279
Ch

apter 14

Security Assistance

280
CHAPTER 15

INTELLIGENCE LAW

REFERENCES

1. National Security Act of 1947, 50 U.S.C. § 401-441d.

2. Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801-1863.

3. Classified Information Procedures Act of 1980, 18 U.S.C. App.

4. Congressional Oversight Act, 50 U.S.C. § 413.

5. Executive Order 12333, United States Intelligence Activities, December 4, 1981, 46 F.R.

59941.

6. Executive Order 12863, Presidents Foreign Intelligence Advisory Board, September 13,

1993, 58 F.R. 48441.

7. DoD Dir. 5240.1, DoD Intelligence Activities, 25 April 1988

8. DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components that

Affect United States Persons, 7 December 1982.

9. DoD Dir. 5240.2, DoD Counterintelligence, 22 May 1997.

10. AR 381-10, U.S. Army Intelligence Activities, 1 July 1984.

11. AFI 14-104, Oversight of Intelligence Activities, 1 Jul 2000.

12. AFI 90-201, Inspector General Activities, 26 Oct 2000.

13. SECNAVINST 3820.3D, Oversight Of Intelligence Activities With The Department Of

The Navy, 26 August 1988.

14. AFI 71-101, Volume 1, Criminal Investigations, 1 December 1999.

15. SECNAVINST 3850.2B, Department Of The Navy Counterintelligence, 24 February

1991.

16. (S) AR 381-102, Intelligence Operational Support Activities (U).

17. (C) AR 381-141, Provisions for Administration, Supervision, Control and Use of

Intelligence Contingency Funds (ICF) (U).

18. AFI 14-101, Intelligence Contingency Funds, 1 November 1998.

19. (C) AR 381-143, INTELLIGENCE PROPERTY (U).

20. (C) AR 715-30, Secured Environment Contracting (U).

21. (S) AR 381-172, Counterintelligence Force Protection Source Operations (CFSO) and

Low Level Source Operations (LLSO) (U), 30 December 1994.

22. DEFENSE HUMINT SERVICE, INTELLIGENCE LAW HANDBOOK, September 1995.

23. Military Rules of Evidence, Rule 505.

Introduction. Intelligence is information. This information is essential to a commander in conducting operations and in

accomplishing his mission. Rudimentary in its early origins, intelligence collection has become a sophisticated and

essential operational discipline. Because intelligence is so important to the commander, operational lawyers must

understand the basic tenets of Intelligence Law.

Intelligence in General. Intelligence can be either strategic or tactical. Strategic intelligence is that information

necessary for the National Command Authority to make policy decisions in the realm of national security. Such

intelligence is gathered from numerous collection methodologies such as human intelligence (HUMINT), electronics

intelligence (ELINT), signals intelligence (SIGINT), or measures and signature intelligence (MASINT). This intelligence

is normally nonperishable and is collected and analyzed for the consumer on a long term basis. Tactical intelligence is

that intelligence which a commander uses to ascertain the capabilities of a threat. It is usually of a perishable and

temporary nature.

Statutory Basis. In general, the statutory basis for Intelligence Law is found in:

1. The National Security Act of 1947, 50 U.S.C. §§ 401- 441d.

Chapter 15

Intelligence Law

281
2. The Intelligence Oversight Act of 1980, 50 U.S.C. § 413.

3. Executive Order 12333, U.S. Intelligence Activities, Dec. 4 1981, 46 F.R. 59941.

4. Annual Intelligence Authorization Acts.

The Intelligence Community. The intelligence community is large and has a varied mission. The community is headed

by the Director of Central Intelligence (DCI). The DCI is also the head of the Central Intelligence Agency (CIA). He is

the Presidents principle legal advisor in all foreign and domestic intelligence matters.291 The Department of Defense is

supported by the Defense Intelligence Agency (DIA), the National Security Agency (NSA) and the various Service

intelligence commands, such as the U.S. Army Intelligence and Security Command and its major subordinate units,

including the various military intelligence brigades located throughout the world. In consultation with the DCI, the

Secretary of Defense must implement policies and resource decisions of the DCI by DoD elements within the National

Foreign Intelligence Program, while ensuring that the tactical intelligence activities provide responsive and timely support

to operational commanders.292

Operational Issues. Aspects of intelligence law exist in all operations. It is imperative that operational lawyers consider

them when planning and reviewing both operations in general and intelligence operations in particular. The JOPES

format puts the intelligence annex of the OPLAN/CONPLAN at Annex B. (see the chapter on Military Decision Making

Process and OPLANS of this Handbook, which includes the JOPES format and each Annex with every appendix listed).

Annex B is the starting point for the judge advocate to participate in the intelligence aspects of operational development.

1. Intelligence collection against U.S. persons. The restrictions on collection of intelligence against U.S. persons

stems from Executive Order 12333. That Order required all government agencies to implement guidance consistent with

the Order. DoD has done so in DoDD 5240.1 and its accompanying Regulation, DoD 5240.1-R. Each Service has issued

complementary guidance, though they are all based on the text of DoD 5240.1-R.

a. DoD 5240.1-R is the sole authority for intelligence components to collect, retain, and disseminate

intelligence concerning U.S. persons. In other words, unless specific authorization to collect, retain, or disseminate

information is found in the Regulation, it cannot be done.

b. There are two threshold questions which must first be addressed. The first is determining whether

information has been collected. Information is collected when it has been received, in intelligible form (as opposed to

raw data), by an employee of an intelligence component in the course of his official duties. The second question is

whether the information collected is about a U.S. person. A U.S. person is defined as a citizen, permanent resident

alien, U.S. corporation, or association substantially composed of any of the above groups. Unless there is evidence to the

contrary, a person or organization within the U.S. is presumed to be a U.S. person; outside the U.S. the presumption is

that they are not U.S. persons.

c. Once the threshold matters have been met, the analysis then turns to whether the information may be

properly collected. Procedure 2 of DoD 5240.1-R governs this area. In short, the intelligence component must have a

mission to collect the information, the information must be contained within one of 13 categories of information

presented in the Procedure, and must be collected by the least intrusive means.

d. Once collected, the component should determine whether the information may be retained (Procedure 3).

In short, if properly collected, it may be retained. If the information was incidentally collected (that is, collected without

a Procedure 2 analysis), it may be retained if post-collection analysis indicates that it could have been properly collected.

Information may be temporarily retained for up to 90 days solely for the purpose of determining its proper retainability.

e. Dissemination to other agencies is governed by Procedure 4. In general, the other agency must have a

reasonable need for the information. However, if disseminating to another DoD intelligence component, that

determination need not be made because that component will do its own Procedure 2 and 3 analysis.

291 50 U.S.C. § 403-3.

292 50 U.S.C. § 403-5.

Chapter 15

Intelligence Law

282
2. Special Collection Techniques. DoD 5240.1-R goes on to treat special means of collecting intelligence in

subsequent Procedures. These Procedures govern the permissible techniques, the permissible targets, and the appropriate

official who may approve the collection. The judge advocate confronting any of these techniques must consult the

detailed provisions of DoD 5240.1R.

a. Electronic Surveillance  Procedure 5.

b. Concealed Monitoring  Procedure 6.

c. Physical Searches  Procedure 7.

d. Searches and Examinations of Mail  Procedure 8.

e. Physical Surveillance  Procedure 9.

f. Undisclosed Participation in Organizations  Procedure 10.

3. Counterintelligence. Counterintelligence is information that is gathered or activities conducted to protect

against espionage and other intelligence activities, as well as sabotage or assassination. Such intelligence activities are

usually conducted on behalf of foreign powers, organizations, persons or international terrorists. Counterintelligence is

concerned with identifying and counteracting that threat to our national security.

a. Within the United States, the FBI has primary responsibility for conducting counterintelligence and

coordinating the counterintelligence efforts of all other U.S. government agencies.293 Coordination with the FBI will be in

accordance with the Agreement Governing the Conduct of Defense Department Counterintelligence Activities in

Conjunction with the Federal Bureau of Investigation, between the Attorney General and the Secretary of Defense, April

5, 1979, as supplemented by later agreements.

b. Outside the United States, the CIA has primary responsibility for conducting counterintelligence and

coordinating the counterintelligence efforts of all other U.S. government agencies.294 Procedures for coordinating

counterintelligence efforts are found in Director of Central Intelligence Directive 5/1 (DCID 5/1), Espionage and

Counterintelligence Activities Abroad, December 19, 1984.

c. DoD has primary responsibility for conducting military-related counterintelligence world-wide.

295 These

activities are typically carried out by Service counterintelligence units. Coordination of effort with the FBI or CIA, as

appropriate, is still essential.

4. Counterintelligence Force Protection Source Operations. A critical force protection tool available to any

deploying commander overseas. The regulation, AR 381-172 (S), is classified. As always, a key aspect of this type of

operation is coordination with the Chief of Station of the Country Team via the appropriate Unified Command.

5. Cover and Cover Support (AR 381-102) (S). A judge advocate should become familiar with the basics of

cover. Cover is a protective guise used by a person, organization, or installation to prevent identification with sensitive

activities. All covers have some degree of independent verification, commonly known as backstopping that supports the

cover. Backstopping is developed and implemented prior to cover being activated. The National Security Act specifies

that elements of the Intelligence Community may not use as an agent or asset for the purposes of collecting intelligence

any individual who is authorized by contract or press credentials to represent themselves as a correspondent of a U.S.

news media organization, or is officially recognized by a foreign government as a member of a U.S. media organization.

296

293 EO 12333, ¶ 1.14(a).

294 EO 12333, ¶ 1.8(c) and (d).

295 EO 12333, ¶ 1.11(b).

296 50 U.S.C. § 403-7.

Chapter 15

Intelligence Law

283
This prohibition can be waived with a written determination by the President or DCI, and does not limit the voluntary

cooperation of any person who is aware that they are assisting an element of the U.S. Intelligence Community.

6. Support Issues Concerning Intelligence Operations. The rules dont change regarding the support of

intelligence operations. Money and property must be accounted for and goods and services still must be procured using

appropriate federal acquisition regulations. The following classified regulations cover these important issues:

1. (U) Intelligence funding, see AR 381-141 (C).

2. (U) Intelligence property accountability, see AR 381-143 (C).

3. (U) Intelligence procurement, see AR 715-30 (C).

7. Intelligence Oversight. A critical aspect of all intelligence operations and activities is overseeing their proper

execution, particularly when they relate to collection of intelligence against U.S. persons. A judge advocate may be

called upon to advise an intelligence oversight officer of an intelligence unit or may be asked to be an intelligence

oversight officer. EO 12333, the Intelligence Oversight Act (50 U.S.C. § 413) and DoD 5240.1-R, Procedure 15, provide

the proper regulatory guidance regarding intelligence oversight.

Chapter 15

Intelligence Law

284
CHAPTER 16

INTERNATIONAL AGREEMENTS AND SOFAS

REFERENCES

1. Case-Zablocki Act, Pub.L. 92-403, 1 U.S.C. § 112b.

2. 22 C.F.R Part 181, Coordination, Reporting, and Publication of International Agreements.

3. State Department Circular 175 (Volume 11, Foreign Affairs Manual, Chapter 720).

4. DoDD 5530.3, International Agreements, 11 Jun 87 (CH. 1, 18 Feb 91).

5. CJCSI 2300.01, International Agreements, 15 Sep 94 (CH. 1, 19 Aug 96).

6. AR 550-51, International Agreements, 15 Apr 98.

7. AFI 51-701, Negotiating, Concluding, Reporting, and Maintaining International

Agreements, 6 May 94.

8. SECNAVINST 5710.25A, International Agreements, 2 Feb 95.

9. DoDD 5525.1, Status of Forces Policy and Information, 7 Aug 79.

10. AR 27-50/SECNAVINST 5820.4G, Status of Forces Policies, Procedures, and

Information, 14 Jan 90.

11. AFI 51-703, Foreign Criminal Jurisdiction, 6 May 94.

12. DoDD 5525.3, Jurisdiction of Service Courts of Friendly Foreign Forces in the United

States, 18 Aug 66.

13. AR 27-51, Jurisdiction of Service Courts of Friendly Foreign Forces in the United States,

15 Dec 75.

14. AFI 51-705, Jurisdiction of Service Courts of Friendly Foreign Forces in the United

States, 31 Mar 94.

15. SECNAVINST 5710.21, Jurisdiction of Service Courts of Friendly Foreign Forces in the

United States, 13 Apr 67.

INTRODUCTION

This chapter does not attempt to discuss specific international agreements that may affect military operations. They

are too numerous, and too many are classified. Instead, this discussion focuses the role of the judge advocate in this area.

The operational judge advocate may be faced with the following tasks relating to international agreements and SOFAs:

Determining the existence of an agreement.

Negotiating an agreement.

Implementing/ensuring compliance with the agreement.

DETERMINING THE EXISTENCE OF AN AGREEMENT

Determining the existence of an international agreement is more challenging than one might think. Except for the

most well known agreements (such as the various NATO agreements), most agreements are obscure, poorly publicized,

and occasionally classified. A judge advocate supporting a unit that is deploying often has to conduct an extensive search

to determine whether an agreement exists, and then must try to find the text of the agreement. The following sources may

help.

The U.S. Department of State is the repository for all international agreements to which the United States is a party (1

U.S.C. § 112a). The Department publishes annually a document entitled Treaties in Force (TIF), containing a list of all

treaties and other international agreements in force as of 1 January of that year. The most current TIF is available at the

web site of the Office of the Legal Advisor, Treaty Affairs, http://www.state.gov/www/global/legal_affairs/tifindex.html.

Chapter 16

International Agreements and SOFAs

285
It is available in printed form from the Government Printing Office (http://bookstore.gpo.gov/), and may be found in

some of the larger staff judge advocate offices and most libraries. Note, however, that TIF is merely a list of treaties and

agreements, with the appropriate citation.297 TIF does not include the text of the agreement; the practitioner must find it

based on the citation. Many agreements in TIF have no citations, because they have not yet been published in one of the

treaty series (which are often years behind), or are cited as NP, indicating that they will not be published. Classified

agreements are not included in TIAS. So, although TIF is a good place to start, it is not the total solution.

There are a number of sources to turn to next. Sticking with the State Department, it may be useful to contact the

Country Desk responsible for the country to which you are deploying. A complete list of phone numbers for each

Country Desk can be found at http://www.state.gov/www/regions/country_offices.html. As these desks are located in

Washington, they should be easily accessible. Somewhat less accessible, but equally knowledgeable, is the Military

Group for the country. A listing for these overseas phone numbers can be found at

http://www.state.gov/www/about_state/contacts/key_officers99/index.html. Either the Country Desk or the Military

Group should have the most current information about any agreements with their country.

Within DoD, the judge advocate has a number of options. First, start with your operational chain of command,

ending with the Combatant Commanders legal staff. Some combatant commands list the agreements with countries

within their area of responsibility on their web sites, though it is more likely that they will do so on their classified

(SIPRNET) site. The next option could be the Service international and operational law divisions: Army (DAJA-IO)

(703) 588-0143, DSN 225; Air Force (JAI) (703) 695-9631, DSN 225; Navy/Marine Corps (Code 10) (703) 697-9161,

DSN 225.

The Center for Law and Military Operations (CLAMO) maintains a list of Status of Forces Agreements (SOFAs),

with text, at http://www.jagcenet.army.mil. Other agreements may be found elsewhere on the Internet. For example,

NATO agreements can be found at the NATO site (http://www.nato.int).

NEOGTIATING AN INTERNATIONAL AGREEMENT

Although a judge advocate may be involved in the negotiation of an international agreement, it is unlikely that he will

be doing so in such an austere environment that this handbook will be the only reference available. Accordingly, this

discussion will be rather summary. However, this section is still very important for the following reasons:

It is important to know what constitutes an international agreement so that you avoid inadvertently entering into

one. This applies not only to the judge advocate, but to the commander and staff as well.

It is important to know that this is an area governed by very detailed rules that require significant interagency

coordination. It is not a process to be entered into lightly, but at the same time, it does work.

There are two significant concepts related to negotiating and concluding international agreements: approval and

coordination.

Approval. The elements of an international agreement are (1) an agreement (2) between governments (or agencies,

instrumentalities or political subdivisions thereof) or international organizations (3) signifying an intent to be bound under

international law. In many respects, an international agreement is simply a contract. If a document includes the elements

listed above, it is an international agreement, and its title or form is of little consequence. It is also possible that an

agreement may be oral. Similarly, the actual status or position of the signer is not as important as the representation that

he speaks for his government. The judge advocate should be suspicious of any document that begins, The Parties agree .

. . unless appropriate delegation of authority to negotiate and conclude is apparent.

An international agreement may be styled a memorandum of understanding or memorandum of agreement, exchange

of letters, exchange of diplomatic notes (Dip Notes), technical arrangement, protocol, note verbale or aide memoire.

Forms that usually are not regarded as international agreements include contracts made under the FAR, credit

297 The citation may be to United States Treaties (U.S.T.) series; Treaties and Other International Agreements (TIAS) series; and/or United Nations

Treaty Series (U.N.T.S.).

Chapter 16

International Agreements and SOFAs

286
arrangements, standardization agreements (STANAGs), leases, procedural arrangements and FMS letters of offer and

acceptance. There are exceptions, however. A memorandum that merely sets out standard operating procedures for deconflicting radio frequencies is not an international agreement, while a lease that includes status provisions would rise

to the level of an international agreement. The point is, form is not as important as substance.

An international agreement binds the United States in international law. The President has certain Constitutional

powers in this area. Similarly, Congress has certain Constitutional powers that permit it to authorize and regulate

international agreements. Military units, on their own, have no such power; accordingly, any power it has is derivative of

the Presidents executive power or of a Congressionally created law. In other words, there must be a specific grant of

authority to enter into an international agreement.

Most agreement with which judge advocates will be interested are implementing powers possessed by the Secretary

of Defense. For example, 22 U.S.C. § 2770a, Exchange of Training and Reciprocal Support, provides  the President

may provide training and related support to military and civilian defense personnel of a friendly foreign country or an

international organization and goes on to require an international agreement to implement the support. In Executive

Order 11501, the President delegated his authority to the Secretary of Defense. 10 U.S.C. § 2342, Cross-servicing

Agreements, is more direct, providing  the Secretary of Defense may enter into an agreement  to provide logistical

support, etc..

In DoDD 5530.3, SECDEF delegated much of his power to enter into international agreements to the Under

Secretary of Defense for Policy (USD(P)), and delegated specific powers further. Matters that are predominately the

concern of a single Service are delegated to the Service Secretaries. Agreements concerning the operational command of

joint forces are delegated to the Chairman, Joint Chiefs of Staff (CJCS). Additional special authorities are delegated to

various defense agencies.

In CJCSI 2300.01A, CJCS has delegated much of his authority in this area to the combatant commanders (CINCs).

Redelegation to subordinate commanders is permittedthis will be accomplished by CINC regulation. Similarly, the

Service Secretaries have published regulations or instructions, noted in the References section, that delegate some portion

of the Secretaries authority.

The most important authority which has not been delegated (that is, the authority remains at the DoD level) is the

authority to negotiate agreements which have policy significance. The portion of DoDD 5530.3 addressing the subject

is as follows:

8.4. Notwithstanding delegations of authority made in section 13., below, of this Directive, all proposed

international agreements having policy significance shall be approved by the OUSD(P) before any

negotiation thereof, and again before they are concluded.

8.4.1. Agreements having policy significance include those agreements that:

8.4.1.1. Specify national disclosure, technology-sharing or work-sharing arrangements,

coproduction of military equipment or offset commitments as part of an agreement for international

cooperation in the research, development, test, evaluation, or production of defense articles, services, or

technology.

8.4.1.2. Because of their intrinsic importance or sensitivity, would directly and significantly

affect foreign or defense relations between the United States and another government.

8.4.1.3. By their nature, would require approval, negotiation or signature at the OSD or the

diplomatic level.

8.4.1.4. Would create security commitments currently not assumed by the United States in

existing mutual security or other defense agreements and arrangements, or which would increase U.S.

obligations with respect to the defense of a foreign government or area.

Chapter 16

International Agreements and SOFAs

287
This list in subparagraphs 8.4.1.1. through 8.4.1.4., above, is not inclusive of all types of agreements

having policy significance.

All of the directives and regulations that delegate authority contain the caveat that agreements that have political

significance are not delegated. They also may contain other limitations of delegation. In general, delegations are to be

construed narrowly. Questions about whether an authority has been delegated by a higher authority generally must be

referred to that authority for resolution. This is an area where if you have to ask whether you have authority, you

probably do not.

The directives provide specific guidance on the procedures to be used when requesting authority to negotiate or

conclude an agreement from the appropriate approval authority. Among other requirements, a legal memorandum must

accompany the request; therefore, the judge advocate will be closely involved in the process. The legal memorandum

must trace the authority to enter into the agreement from the Constitution/statute through all delegations to the approval

authority. All approvals must be in writing.

Coordination. In addition to the approval requirements summarized above, Congress has created another level of

review in the Case-Zablocki Act. 1 U.S.C. § 112b(c) (reprinted as enclosure 4 to DoDD 5530.3) provides:

Notwithstanding any other provision of law, an international agreement may not be signed or otherwise concluded on

behalf of the United States without prior consultation with the Secretary of State. The Secretary of State has published

procedures to implement the Case-Zablocki Act in 22 C.F.R. Part 181 (reprinted as enclosure 3 to DoDD 5530.3). Part

181.4 specifically deals with the consultation requirement. It initially refers the reader to Circular 175 procedures (which

may be found at http://foia.state.gov/Famdir/fam/11fam/11fam.html), but those procedures are largely digested in the

remainder of Part 181.4. Unfortunately, these procedures are not particularly detailed. DoDD 5530.3 is similarly

unhelpful, merely assigning the responsibility to coordination with the State Department to the authority to which

approval of the agreement has been delegated.

In short, a judge advocate at a unit negotiating an international agreement is going to be unable to effect the

Department of State coordination on his own. The proposed agreement will have to rise through the chain of command

until it gets to a level at which the proper coordination may be made.

Once the proposed agreement has been approved and coordinated, the actual negotiation with the foreign authorities

may begin. At this point, the process is much like negotiating any contract. The objectives of the parties, the relative

strengths of their positions, and bargaining skills all play a part. Note that once an agreement is reached, it may not be

signed until approval has been given, by the same procedures discussed above, unless the initial approval was to negotiate

and conclude the agreement.

Once concluded, there remain procedural requirements. Chief among these is the requirement to send a certified

copy of the agreement to the Department of State within 20 days. DoDD 5530.3 requires that another two copies be

forwarded to the DoD General Counsel. If concluding an agreement based on delegated authority, the delegating

authority also wants a copy. For example, CJCSI 2300.01A requires a copy be forwarded to the Secretary, Joint Staff.

Those concluding an agreement based on authority delegated by the Secretary of the Army must forward a copy to

HQDA (DAJA-IO). (The Army requires all copies within 10 days.)

IMPLEMENTING/ENSURING COMPLIANCE WITH THE AGREEMENT

Like any other law, international agreements to which the United States is a party must be followed. The judge

advocate will be a principle player in this effort. Some of the areas, such as foreign criminal jurisdiction, will fall within

the judge advocates ambit in any case. Others, such as logistics agreements, will be handled by experts in other staff

sections, with judge advocate support. In areas in which we have been exercising an agreement for a long time, such as

the NATO Acquisition and Cross-Servicing Agreement (ACSA), the subject-matter experts, such as the logisticians, will

require little or no legal support. Little used agreements, or newly concluded agreements, may require substantial judge

advocate involvement.

Common subjects of international agreements include status of forces, logistics support, pre-positioning,

cryptological support, personnel exchange programs and defense assistance, including security assistance programs. For

Chapter 16

International Agreements and SOFAs

288
the deploying judge advocate, status of forces agreements are probably the most important, followed by logistics support

agreements.

Status of Forces Agreements

Status/Foreign Criminal Jurisdiction (FCJ). One of the most important deployment issues is criminal jurisdiction.

The general rule of international law is that a sovereign nation has jurisdiction over all persons found within its borders.

There can be no derogation of that sovereign right without the consent of the receiving state, and, in the absence of

agreement, U.S. personnel are subject to the criminal jurisdiction of the receiving state. On the other hand, the idea of

subjecting U.S. personnel to the jurisdiction of a country in whose territory they are present due solely to orders to help

defend that country raises serious problems. In recognition of this, and as a result of the Senates advice and consent to

ratification of the NATO SOFA, DoD policy, as stated in DoDD 5525.1, is to maximize the exercise of jurisdiction over

U.S. personnel by U.S. authorities.

An exception to the general rule of receiving state jurisdiction is deployment for combat, wherein U.S. forces are

generally subject to exclusive U.S. jurisdiction. As the exigencies of combat subside, however, the primary right to

exercise criminal jurisdiction may revert to the receiving state.

Status of Forces Agreement. Resolving the issue of FCJ is often the catalyst of a SOFA, so it will be a rare SOFA

that does not address it in detail. Article VII of the NATO SOFA provides a scheme of shared jurisdiction among the

Receiving State (i.e., the host nation) and the Sending State (i.e., the State sending forces into the host nation). This

scheme is the model for many other SOFAs, so it will be discussed in detail. All examples will assume a U.S. soldier

stationed in Germany.

Exclusive Jurisdiction in the Sending State. Conduct which constitutes an offense under the law of the Sending

State, but not the Receiving State, is tried exclusively by the Sending State. For example, dereliction of duty is an offense

under the UCMJ, but not under German law, so exclusive jurisdiction rests with the U.S..

Exclusive Jurisdiction in the Receiving State. Conduct which constitutes an offense under the law of the

Receiving State, but not the Sending State, is tried exclusively by the Receiving State. For example, traffic offenses

violate German law, but not U.S. law, so Germany has exclusive jurisdiction over the offense.

Concurrent Jurisdiction. For all conduct which constitutes an offense under the laws of both the Receiving and

Sending State, there is concurrent jurisdiction, with primary jurisdiction being assigned to one of the parties.

Primary Concurrent Jurisdiction in the Sending State. The Sending State has primary jurisdiction in two

instances. First are acts in which the Sending State is the victim or a person from the Sending State (otherwise covered

by the SOFA) is the victim. This is known as inter se (among themselves). For example, if a soldier assaults another

soldier, it violates both U.S. and German law, but primary jurisdiction rests with the U.S. because the victim is of the

Sending State. Second are acts or omissions which are done in the performance of official duty. For example, a soldier,

driving between posts, that hits and kills a pedestrian could be charged with some sort of homicide by both the U.S. and

Germany, but because it was committed while in the performance of official duty, primary jurisdiction rests with the U.S..

Primary Concurrent Jurisdiction in the Receiving State. In all other cases, primary jurisdiction rests with

the Receiving State. However, it is possible for the Receiving State to waive its primary jurisdiction in favor of the

Sending State, and they often do so. The NATO SOFA provides that sympathetic considerations shall be given to

requests to waive jurisdiction. For example, if a soldier assaults a German national, it violates both U.S. and German law,

but Germany has primary jurisdiction. Upon request, Germany may waive its jurisdiction, in which case the soldier may

be tried by U.S. court-martial.

Absence of a SOFA. If no SOFA exists, it is still possible for the United States to retain some criminal jurisdiction

over our deployed forces.

United Nations missions. Personnel participating in a UN mission will typically have special protection. In

some cases, the State to which the UN is deploying forces may grant those forces expert on mission status. This refers

Chapter 16

International Agreements and SOFAs

289
to Article VI of the Convention on the Privileges and Immunities of the United Nations (reprinted in the Peace Operations

chapter), and grants complete criminal immunity. Alternatively, the UN may negotiate a SOFA, though in UN parlance it

is called a Status of Mission Agreement (SOMA). The UN Model SOMA, which is to be used as a template for the

actual SOMA, provides for exclusive criminal jurisdiction in the Sending State.

Administrative and Technical Status. Some Receiving States may consent to granting U.S. personnel the

privileges and immunities equivalent to the administrative and technical staff of the U.S. embassy receive. This is often

referred to in short-hand manner as A&T status. In many cases, the U.S. can obtain such status by incorporating, by

reference, the privileges and immunities already granted to U.S. military personnel under another agreement, such as a

defense assistance agreement that includes personnel assigned to the U.S. embassy or to a Military Assistance Advisory

Group (MAAG). These agreements usually provides A&T status to the covered personnel. A&T status is rarely granted

for large-scale and/or long-term deployments. The Receiving State typically recognizes the A&T status of the deploying

forces through an exchange of diplomatic notes. The Combatant Commander should be able to energize the process that

results in these notes. Alternatively, the MAAG may be able to do so.

Visiting Forces Acts. If the U.S. does not have an agreement with a host nation, some nations still extend

protections to visiting forces in domestic statutes commonly called a Visiting Forces Act. The Commonwealth nations

are those nations most likely to have a Visiting Forces Act (i.e. Jamaica, Belize). In general, these statutes provide a two

part test. First, Visiting Forces Acts require that the nation sending forces to the host country be listed in accordance with

its domestic law. Second, the jurisdictional methodology is one of two types: a jurisdictional model similar to the NATO

SOFA or protections equivalent to A&T status. In any case, it is essential that the judge advocate acquire a copy of the

host nations Visiting Forces Act before deploying into that country.

No Protection. The last situation encountered by deployed units occurs when U.S. forces enter a host nation

totally subject to the host nations law. While it is generally U.S. policy not to do this, there are some situations where a

political decision is made to send U.S. forces into a country without any jurisdictional protections. U.S. forces are

essentially tourists. Quite often, however, liaison with the host nation military authorities that invited us into the country

may be successful in securing more favorable treatment should the need arise.

Exercise of FCJ by the Receiving State. Under any of these cases, if U.S. military personnel are subjected to foreign

criminal jurisdiction, the United States must take steps to ensure that they receive a fair trial. Detailed provisions are set

out in DoDD 5525.1 and implementing Service regulations.

Claims. Claims for damages almost always follow deployments of U.S. forces. Absent agreement to the contrary (or

a combat claims exclusion), the U.S. is normally obligated to pay for damages caused by its forces. As a general rule, the

desirable arrangement is for state parties to waive claims against each other. Since the Receiving State benefits from

hosting a combined exercise with U.S. forces or from some other form of U.S. presence, it is not uncommon for a

Receiving State to agree to pay third party claims caused by U.S. forces in the performance of official duty. As a result,

the U.S. is liable only for third party claims caused other than in the performance of official duties. In such a case, the

desirable language is that the United States may, at its discretion, handle and pay such claims in accordance with U.S.

laws and regulations, i.e., the Foreign Claims Act.298

Force Protection/Use of Deadly Force. The general rule of international law is that a sovereign is responsible for the

security of persons within its territory. This does not, however, relieve the U.S. commander of his responsibility for the

safety (i.e., self-defense) of his unit. As part of the predeployment preparation, the judge advocate should determine

whether the applicable agreement includes provisions regarding force security. While the host nation is generally

responsible for the security of persons in its territory, it is common for the U.S. to be responsible for security internal to

the areas and facilities it uses. It may also be desirable to provide for the U.S. to have the right to take measures to protect

its own personnel under certain circumstances. For example, Article III of the Korean SOFA provides that in the event of

an emergency, the United States armed forces shall be authorized to take such measures in the vicinity of the facilities and

areas as may be necessary to provide for their safeguarding and control. This may include a provision allowing military

police the authority to apprehend U.S. personnel off the installation. The relative responsibilities of host nation and U.S.

298 10 U.S.C. § 2734. Keep in mind that the payment of claims under the Foreign Claims Act is based not on legal liability, but on the maintenance of

good foreign relations.

Chapter 16

International Agreements and SOFAs

290
commanders is a sort of sliding scale; forces deployed for combat operations should expect little security from the

receiving state.

Entry/Exit Requirements. Passports and visas are the normal procedures for identifying nationality and verifying that

presence in the receiving state is authorized. But the issuance of passports to large numbers of military personnel is

expensive and impractical, andin an emergencythe issuance of visas unacceptably slow. Even in peacetime, the time

it takes to process visa requests impacts significantly on operational flexibility. As a result, most SOFAs provide that

U.S. personnel may enter and exit the territory of the receiving state on their military identification cards and orders.

Customs and Taxes. While U.S. Forces clearly should pay for goods and services requested and received, sovereigns

do not generally tax other sovereigns. As a result, U.S. forces should be exempted from the payment of host nation

customs and taxes on goods and services imported into or acquired in the territory of the receiving state for official use.

Contracting. Specific authority for U.S. forces to contract on the local economy for procurement of supplies and

services not available from the host nation should be included in the SOFA. As noted above, provision should always be

made to exempt goods and services brought into or acquired in the host country from import duties, taxes and other fees.

Vehicle Registration/Insurance/Drivers Licenses. The Receiving State may attempt to require that U.S. vehicles be

covered by third party liability insurance and that U.S. drivers be licensed under local law. These efforts should be

resisted, and provisions specifically exempting U.S. forces from these requirements should be included in the SOFA or

exercise agreement.

The U.S. Government is self-insured. That is, the USG bears the financial burden of risks of claims for damages,

and the Foreign Claims Act provides specific authority for the payment of claims. As a result, negotiation of any

agreement should emphasize that official vehicles need not be insured.

Official vehicles may be marked for identification purposes, if necessary, but local registration should not be required

by the receiving state. In many countries, vehicle registration is expensive. SOFAs frequently provide for POVs to be

registered with receiving state authorities upon payment of only nominal fees to cover the actual costs of administration.

A provision for U.S. personnel to drive official vehicles with official drivers licenses expedites the conduct of

official business. It is also helpful if the Receiving State will honor the U.S. drivers licenses of U.S. personnel or, in the

alternative, issue licenses on the basis of possession of a valid stateside license without requiring additional examination.

8. Communications Support. When U.S. forces deploy, commanders rely heavily upon communications to exercise

command and control. Absent an agreement to the contrary, the commanders use of frequencies within the electromagnetic spectrum is governed by host nation law. This includes not only tactical communications, but commercial radio

and television airwaves. This can greatly impact operations and should be addressed early in the planning process. While

the commander prefers unencumbered use of the entire electro-magnetic spectrumas was granted in the Dayton Peace

Agreement to IFORone should not expect such acquiescence in future operations. Early and close coordination

between U.S. and host nation communications assets should be the norm.

Logistics Agreements

Pre-positioning of Material. If U.S. equipment or material is to be pre-positioned in a foreign country, an

international agreement should contain the following provisions:

-- Host nation permission for the U.S. to store stocks there.

-- Unimpeded U.S. access to those stocks.

-- Right of removal, without restriction on subsequent use.

-- Adequate security for the stocks.

Chapter 16

International Agreements and SOFAs

291
-- Host nation must promise not to convert the stocks to its own use, nor to allow any third party to do so.

(Legal title remains vested in the U.S.).

-- Appropriate privileges and immunities (status) for U.S. personnel associated with storage, maintenance or

removal of the stocks.

In some cases, the DoD General Counsel has allowed some leeway in negotiating pre-positioning agreements,

provided host government permission for U.S. storage in its territory and unequivocal acknowledgment of U.S. right of

removal are explicit. Legal title need not be addressed per se, if it is clear the host government has no ownership rights

in the stocksonly custodial interestsand that pre-positioned stock is solely for U.S. use. Access to the prepositioned stocks need not be addressed explicitly, unless U.S. access is necessary to safeguard them. There can be no

express restrictions on U.S. use. Prior consultation for U.S. removal of pre-positioned stocks is not favored, and prior

approval is not acceptable. Conversion need not be specifically addressed, if it is clear that the prepositioned stocks

sole purpose is to meet U.S. requirements. Security must be specifically addressed only when stores are at risk, due to

their value. Privileges and immunities are required only when it is necessary for U.S. personnel to spend significant

amounts of time in the host country to administer, maintain, guard or remove the stocks.

Host Nation Support. When a unit deploys overseas, some of its logistical requirements may be provided by the host

nation. If so, it is desirable to have an international agreement specifying the material the host nation will provide and on

what conditions, such as whether it is provided on a reimbursable basis.

Acquisitions and Cross-Servicing Agreements (ACSA). Subchapter 138 of Title 10, U.S.C., also provides authority

for government-to-government acquisitions and for cross-servicing agreements for mutual logistics support. Under 10

U.S.C. § 2342, U.S. Forces and those of an eligible country299 may provide logistics support, supplies and services on a

reciprocal basis. The primary benefit of cross-servicing is that such support, supplies and services may be reimbursed

through replacement in kind; trade of support, supplies or services of equal value; or cash. In addition, ACSA allows the

deletion of several common contractual paragraphs required by the FAR but frequently objectionable to other

sovereigns.

300

For NATO, there is an aggregate ceiling of $200 million per year on the total amount of liabilities the U.S. may

accrue under this subchapter, except during a period of active hostilities. The limit is $60 million per year for non-NATO

countries. The amount of acquisitions and cross-servicing a component may conduct each year is allocated by the

cognizant Combatant Commander.301

There are some restrictions on ACSAs. For example, they cannot be used as a substitute for normal sources of

supply, nor as a substitute for foreign military sales procedures. Major end items may not be transferred under a crossservicing agreement. For general guidance, see DoD Directive 2010.9, Mutual Logistic Support between the United

States and Governments of Eligible Countries and NATO Subsidiary Bodies.

Cryptologic Support. 10 U.S.C. § 421 authorizes SECDEF to use funds appropriated for intelligence and

communications purposes to pay the expenses of arrangements with foreign countries for cryptologic support. This

authority has been frequently used as the basis for agreements to loan communications security (COMSEC) equipment,

such as message processors or secure telephones, to allied forces. Equipment of this type raises obvious technology

transfer issues, and among the key provisions of any COMSEC agreement is the assurance that the receiving states forces

will not tamper with the equipment in an effort to retro-engineer its technology. See CJCSI 6510.01, Joint and Combined

Communications Security, for guidance.

The U.S. as a Receiving State.

299 Eligible countries include all NATO countries, plus non-NATO countries designated by SECDEF. Criteria for eligibility include: defense alliance

with the U.S.; stationing or homeporting of U.S. Forces; pre-positioning of U.S. stocks; or hosting exercises or staging U.S. military operations. A list

of ACSAs can be found on CLAMOs web site.

300 See 10 U.S.C. § 2343.

301 See 10 U.S.C. § 2347.

Chapter 16

International Agreements and SOFAs

292
In the past, the focus of the Status of Forces was on U.S. service members deployed to other countries. However, in

the post-Cold War era that is no longer exclusively the case. Foreign forces come to the U.S. for training on a routine

basis. In fact, some NATO nations have units permanently stationed in the U.S.302 The status of these foreign armed

forces personnel depends on what nations soldiers are conducting training in the U.S. Almost all status of forces

agreements entered into by the U.S. have been non-reciprocal in nature. For example, the Korean SOFA only applies to

U.S. armed forces in the Republic of Korea. Therefore, exclusive jurisdiction would rest with the U.S. The second

situation is where the U.S. has entered into a Status of Forces Agreement that is reciprocal. The NATO SOFA and the

PFP SOFA are such agreements. With nations party to the NATO SOFA and Partnership for Peace SOFA, the

jurisdictional methodology is same as when the U.S. is sending forces, only the roles are reversed.

There are a number of issues to be addressed in this area. The first arises based on our federal system. If the

international agreement under which the foreign forces are seeking protection is a treaty, it is the supreme law of the land,

and is binding on both the federal and state jurisdictions. International agreements which are not treaties (i.e., executive

agreements) do not have that status. Although these are binding on the federal government, they are not binding on the

states. Therefore, a state prosecutor would be totally free to charge a visiting serviceman for a crime under state law,

regardless of the provisions of the international agreement. Often such a prosecutor will be willing to defer prosecution in

the national interest, but it may be a matter for delicate negotiation, and the judge advocate will take a leading part. Other

issues arise from the foreign force imposing discipline on members of their force within the United States. Just as the

U.S. conducts courts-martial in Germany, Germany may wish to do the same in the United States. DoDD 5525.3 and

Service implementations address some of these issues.

302 For example, at Holliman Air Force Base, there is a German Tornado Fighter Squadron permanently assigned there with talk of adding an additional

squadron. Fort Bliss, Texas is home to a substantial German Air Defense training detachment.

Chapter 16

International Agreements and SOFAs

293
Ch

apter 16

International Agreements and SOFAs

294
CHAPTER 17

LEGAL ASSISTANCE

REFERENCES

1. AR 27-3, Legal Services: The Army Legal Assistance Program, 10 September 1995.

2. AFI 51-504, Legal Assistance, Notary, and Preventive Law Programs, 1 May 1996.

3. JAGINST 5801.2, Navy-Marine Corps Legal Assistance Program, 11 April 1997.

INTRODUCTION.

Winning in wartime depends in large part on the efficiency of each soldier in combat. A soldiers combat efficiency can

be affected by legal problems left behind at deployment. One objective of the Army Legal Assistance Program is to

enhance combat efficiency by assisting the soldier with their legal issues. The Deployment Guide, JA 272, outlines a

program that enables judge advocates to tailor their legal assistance program to meet the needs of soldiers and their

families both before and during deployments.

Given the nature of legal assistance, this chapter cannot summarize all laws and identify all resources. However, it does

provide material that will help a Legal Assistance Office (LAO) prepare for pre-deployment and deployment operations.

Refer to AR 27-3, Legal Services: The Army Legal Assistance Program (10 Sep 95), JAGCNET, and JA 272,

Deployment Guide, for policy guidance, sample SOPs, and letters.

THE LEGAL ASSISTANCE MISSION.

From an operational standpoint, the legal assistance mission must ensure that the soldiers personal legal affairs are in

order prior to deployment, and then, in the deployment location, to meet the soldiers legal assistance needs as quickly

and efficiently as possible. Accomplishing this mission is one of the judge advocates most important functions.

Personal legal difficulties may not only reduce combat efficiency, but can also result in problems requiring disciplinary

action.

Given this situation, performing legal assistance functions during peacetime exercises is crucial, as the legal problems

soldiers encounter on exercises are often the same as those which arise during combat. Prior to deployment, both the

soldier and the soldiers family must be prepared for the deployment. For the soldier, this preparation is an ongoing effort

that should begin upon his arrival at the unit and end only upon transfer. The SJA office must make an aggressive and

continuous effort to ensure soldiers legal affairs are reviewed and updated.

I. SOLDIER READINESS PROGRAM (PREPARATION FOR EXERCISES, DEPLOYMENT, AND

MOBILIZATION).

A. Prior Planning Prevents Poor Performance! SJA offices must ensure that their LAO has an SRP &

Mobilization SOP, that the LAO coordinates the SOP fully with other staff elements in advance, and that all

parts of the SJA Office are trained and ready to support SRP processing when needed.

B. Introduction.

1. The Army Legal Assistance Program (ALAP), AR 27-3, provides a number of client and preventive law

services. No distinction is made between the type of legal assistance service provided to a client seeking

help with a personal legal problem and service to a deploying soldier.

2. Legal Assistance is provided by Active Army (AA) and Reserve Component (RC) judge advocates and

civilian attorneys in a variety of settings, to include:

Chapter 17

Legal Assistance

295
a. During combat readiness exercises such as an emergency deployment readiness exercise (EDRE),

ARNG readiness for mobilization exercise (REMOBE), or mobilization deployment readiness exercise

(MODRE);

b. During a RC Premobilization Legal Preparation (PLP);

c. During Soldier Readiness Program (SRP) processing; and

d. During a demobilization briefing.

C. A soldier readiness program (peacetime) is established by and operated under AR 600-8-101, Personnel

Processing (In- and Out- and Mobilization Processing) and Change 2, eff. 1 April 1997.

1. DA Form 5123-1-R (Personnel In-processing Record) is used to determine the readiness status of the soldier

(AR 600-8-101, page 43).

2. The Soldier Readiness Processing Team (SRPT) from the installation and community staff agencies:

a. Accomplishes the unit and individual annual and 30 days prior to actual deployment soldier

readiness checks, under general leadership of the G1/AG (Chief, Military Personnel Division); and

b. Includes a representative from the legal office (as well as personnel, medical, dental, provost marshal,

finance, security, logistics, and operations).

3. Reserve Component Regional Support Command and State Area Command (National Guard) Judge

Advocates will plan and execute Premobilization Legal Preparation (PLP) for units under their command,

utilizing organic legal assets, LSO and MSO attorneys. Such PLP will be conducted based on the tiered

readiness level of command units, as well as any potential activation of particular units for peacekeeping

duties.

4. There are five (5) levels of requirements to prepare soldiers for basic movement through deployment and

wartime movement (AR 600-8-101, Chapter 4). Each level requires different legal preparation.

a. Level 1 - Basic movement soldier readiness processing requirements. No specific legal review

requirements; however, SGLI forms will be reviewed or revised, and soldiers requiring them will have

satisfactory Family Care Plans (DA Form 5304-R) on file; otherwise, they are non-deployable (AR 600-

20, para 5-5k(3)).

b. Level 2 - Wartime movement stopper soldier readiness processing requirements. Prior to deployment,

soldiers must have received a Geneva Conventions briefing some time in their current

enlistment/career. (see Chapter 2 for an example of LOW training)

Note: At Levels 1 and 2, signature of the person in charge of the individual SRPT station is required,

signifying all requirements are met, before the soldier is cleared for movement.

c. Level 3 - Other soldier readiness processing requirements.

(1) Each soldier pending civil felony charges will be provided assistance and may not move as a result

of these charges.

(2) Time and resources permitting, wills and powers of attorney will be provided to each soldier.

(3) Soldiers will be counseled on insurance and other civil matters.

Chapter 17

Legal Assistance

296
d. Level 4 - Deployment area/mission unique soldier readiness processing requirements. Each soldier will

be briefed on the applicable local laws.

e. Level 5 - Peacetime PCS/transition soldier readiness processing requirements. Assistance will be

provided soldiers pending civil and military charges, which may result in the soldier not complying

with PCS orders.

D. Unit and individual movement (peacetime).

1. Unit movement policy.

a. Contingency operations.

(1) Prior to actual soldier or unit movement in support of combat or contingency operations,

commanders will physically review on-site, within 30 days of departure, processing requirements

in Levels 1 through 4. Levels 1 and 2 are mandatory compliance levels while 3 and 4 may be

waived by a general officer in command (AR 600-8-101, para 5-2a).

(2) The Soldier Readiness Processing Team (SRPT) will assist commanders.

b. Administrative movement.

(1) Prior to actual movement during peacetime, commanders will review processing requirements at

Level 1.

(2) SRPT will assist commanders.

2. Conducting unit movement soldier readiness check:

a. Chief, SRPT coordinates with Bn S1 on schedule, location and roster of personnel to be checked.

b. Chief, SRPT provides list of non-deployable and reason(s) for this status to Bn S1 for corrective action,

with copy furnished to G1/AG and G3 operations.

c. AR 600-8-101, Table 5-1, provides steps and work centers for unit movement soldier readiness checks.

Chapter 17

Legal Assistance

297
STEPS WORK CENTER REQUIRED ACTION

1 BN S1 Issue soldier DA Form 5123-1-R

2 SOLDIER Process at personnel station

3 SOLDIER Process at medical station

4 SOLDIER Process at dental station

5 SOLDIER Process at finance station

6 SOLDIER Process at legal station

7 SOLDIER Process at security clearance station

8 SOLDIER Process at Bn S3

9 SOLDIER Return completed DD Form 5123-1-R to

Bn S1

10 BN S1 Verify completeness of forms

11 BN S1 Inform unit commander and Bn S3 of

unit processing status and specific

deficiencies by soldier

12 BN S1 File form for future reference

TABLE 1: UNIT MOVEMENT SOLDIER READINESS CHECKS

(Reproduced from Table 5-1, AR 600-8-101)

The next chart details a suggested SRP site layout and a suggested flow of processing within the SJA sections. These

proposed layouts allow judge advocate assets to prepare legal documents while soldiers process through other SRP

stations. This reduces soldier waiting time for legal products and is more efficient. The model also allows attorneys to

counsel soldiers regarding documents they will see at the personnel station, like SGLI elections and Family Care Plans.

L e g a l P r e -

B ri e f

( G ro u p )

A tt o rn e y

I n te r v ie w

D o c u m e n t

P r e p a r a tio n

T e c h n ic a l

R e v i ew

D o c u m e n t

R e v i e w &

E x e c u tio n

O th e r S R P S t a tio n s

I n te r n a l L A O P ro c e ssin g

A c t u a l F lo w o f S o ld ie rs

3 0 m in . 1 5 m in . 3 0 m in . 1 0 m in .

(M in im u m )

P R O C E S S IN G T IM E G O A L S :

II. THE RESERVES.

A. Mobilization Processing Program.

Chapter 17

Legal Assistance

298
Involves home station and mobilization station processing requirements to integrate individuals and

units into the active force administratively.

Involves expansion of the peacetime in- and out-processing (IOPR) activity as a sub-work unit of

the installation mobilization and deployment center (MADC).

Involves installation task force operations, if partial or higher state of mobilization has been

declared.

1. Mobilization is the process by which the Armed Forces or a part thereof are expanded and brought to a state

of readiness for war or other national emergency.

a. Includes calling all or part of the Reserve Components to active duty and assembling and organizing

personnel supplies and material.

b. The call of Reserve Component units to active duty may include a number of different types of

mobilization that effect the length of their active duty and their potential legal assistance problems. See

the chapter on The Reserves and Mobilization for more details.

2. There are 5 phases of federalizing/mobilizing RC units:

a. Phase I - Preparatory. Concerns RC units at home station during peacetime. The units plan, train, and

prepare to accomplish assigned mobilization missions.

b. Phase II - Alert. Begins when RC units receive notice of pending order to active duty and ends when

units enter active Federal service.

c. Phase III - Mobilization at Home Station (HS). Begins units entry onto active Federal duty and ends

when units depart for their mobilization stations (MS) or ports of embarkation (POE).

d. Phase IV - Movement to Mobilization Stations. Begins with units departing from HS, by most

expeditious and practical means available, and ends when units arrive at MS or POE.

e. Phase V - Operational Readiness Improvement. Begins when units arrive at their MS and ends when

they are declared operationally ready for deployment.

f. Many Reserve units are mobilizing at home station and going directly to the POE, without going to a

MS. Organic Reserve Component Judge Advocate sections, Legal Support Organizations (LSOs) and

Mobilization Support Organizations (MSOs), will provide legal assistance.

3. Concept of Mobilization Processing is the same as SRP  Both active and Reserve Component units must

keep personnel records and actions current and accurate to ensure not only the availability of personnel, but

also to reduce processing time at home stations and installations. AR 600-8-101, para. 6-4. The following

are major workload generators at mobilization processing and must be kept up to date routinely (AR 600-8-

101, para. 6-10h.):

a. DD Form 93

b. SGLI Election

c. DD Form 2A (ID Card)

d. ID Tags

e. Immunizations

f. HIV Testing not posted to medical record

Chapter 17

Legal Assistance

299
g. Eyeglasses and mask inserts

h. Panographic X-ray at Central Storage

i. Requirements for Wills

j. Dental Readiness

4. CONUS Replacement Centers (CRC).

a. The CRC Replacement Battalion (USAR) on pre-designated Army installations executes operations.

CRC units normally ordered to duty under Presidential Selected Reserve Call-up.

b. CRC mission is, among other things, to verify completion of SRP (Soldier Readiness Processing).

While the CRC is capable of full SRP service, the volume of personnel processing through a CRC may

require the SJA to direct reduced legal support per AR 27-3, para. 3-6b(2)(b) (Needs based triage of

estate planning clients).

5. Soldier Readiness Processing Requirements.

a. Levels I and II SRP requirements (see above) are mandatory. Deficiencies will be remedied on the spot

during processing or follow-up referrals made.

b. SGLV 8286 (SGLI) and needed Wills are SRP requirements which are major workload generators at

both home station and mobilization station.

6. Mobilization Packet (AR 600-8-101, para. 6-11) must contain:

a. DD Form 1934 (Geneva Conventions Identity Card for Medical and Religious Personnel Who Serve in

or Accompany the Armed Forces), if applicable.

b. DD Form 1172 (Application for Uniformed Services Identification Card DEERS Enrollment).

c. TD Form IRS W4 (Employees Withholding Allowance Certificate).

d. Marriage certificate with raised certification seal.

e. Birth certificates of family members.

f. DA Form 3955 (Change of Address and Directory Card).

g. DD Form 2558 (Authorization to Start, Stop or Change an Allotment for Active Duty or Retired

Personnel).

h. Blank VA Form 29-8286 (Servicemens Group Life Insurance Election).

i. Family Care Plan if required.

7. AR 600-8-101, chapter 6, details the mobilization process. Paragraph 6-43 provides rules for mobilization

processing at the legal station:

a. All soldiers will process through this station.

b. AR 600-8-101, chapter 4, details SRP requirements.

Chapter 17

Legal Assistance

300
c. If resources permit, Wills and powers of attorney may be made. See AR 27-3, para 3-6b(2)(b).

d. Copies of Wills and Powers of Attorney will be filed in the soldier carried mobilization packet. The

original and one copy will be given to soldier. LAAs should encourage soldiers to leave wills with the

personal representative or other responsible individual. Soldiers should give or mail powers of attorney

to the designated attorney.

e. AR 600-8-101, Table 6-17, provides steps and work centers for Mobilization Processing at the Legal

Station.

Step Work Center Required Action

1 IOPR ACTIVITY Verify Geneva Convention Briefing

2 IOPR ACTIVITY Determine soldiers requirement for a Will

3 IOPR ACTIVITY Provide powers of attorney services

4 IOPR ACTIVITY Verify pending military charges

5 IOPR ACTIVITY Verify pending civilian charges

6 IOPR ACTIVITY Process application for Soldiers and Sailors Civil Relief Act if required

TABLE 2: MOBILIZATION PROCESSING AT THE LEGAL STATION

(Reproduced from Table 6-17, AR 600-8-101)

III. LEGAL ASSISTANCE PREPARATION FOR READINESS EXERCISES AND DEPLOYMENT.

A. Legal Assistance offices should be aggressive in sponsoring preventive law programs to educate soldiers and

their families before deployment occurs. Topics covered should include:

1. Who is eligible for legal assistance services.

2. SGLI designations (Note: Soldiers may no longer use the By Law designation.)

3. Wills for both spouses.

4. Powers of Attorney.

5. Consumer law issues.

6. Reemployment rights issues (Reserve Component only).

B. Typically readiness exercises and rapid deployments will be conducted on no-notice or short-notice basis.

1. The Chief, Legal Assistance should plan for deployments and contingency missions by:

a. Designating teams of attorneys and clerks to staff exercise and deployment sites.

b. Establishing an SOP (Standard Operating Procedure) for legal administration both on-site and at the

legal assistance office during the exercise or deployment.

c. During an exercise, judge advocates should attempt to replicate wartime or real-world deployment

services. If soldiers require legal services, the SJA should deploy sufficient resources to meet the needs

of the supported units. If soldier needs exceed the capability of available resources, the exercise will

Chapter 17

Legal Assistance

301
not be delayed. Judge advocates should identify units or individuals with outstanding, unmet, legal

needs and plan to address those needs upon the return of the unit or end of the exercise.

d. Additional Planning considerations:

(1) Designate time and place for legal team to meet for the exercise or deployment.

(2) Establish who remains at the legal assistance office as back-up support for the exercise/deployment

legal team.

(3) Reschedule office hours of operation as necessary.

(4) Ensure close coordination with unit commanders for sufficient logistical support and full soldier

participation.

(5) Ensure all needed supplies, forms and equipment are available at the site.

(6) Get adequate feed-back after the exercise from the legal team.

(7) Plan to include Reserve Component Judge Advocate LSOs and MSOs and Garrison Support Unit

(GSU) Legal Sections in SRP rotations.

2. During exercises and deployments, judge advocates should be prepared to render the following services:

a. Will and Power of Attorney preparation.

(1) Wills will not be prepared using preprinted fill-in-the-blank wills.

(2) Will executions will be supervised by an attorney.

(3) Attempt to use non-deploying personnel as witnesses for wills. Self proving wills do not eliminate

the need to locate and produce witnesses, particularly if the will is contested at probate.

b. Provide guidance concerning soldiers pending civil and criminal proceedings.

(1) Requests for stays of civil proceedings should be made via letter from the soldiers commanding

officer - requests for stays by legal assistance attorneys may be considered appearances and work to

the detriment of the soldier (See: JA 260, The Soldiers and Sailors Civil Relief Act Guide (Apr

98)).

(2) Attorneys may request postponements of criminal proceedings, but such stays are not governed by

the SSCRA.

c. During deployment, the legal assistance office should continue briefing family members as needed.

Reserve Component commands legal sections will support their family members as needed.

d. After deployment, the legal assistance office should follow-up on legal assistance matters not resolved

prior to deployment.

IV. FAMILY CARE PLANS (AR 600-20, PARA 5-5, 15 JUL 99).

A. Mission, readiness, and deployability needs especially affect Active Army (AA) and Reserve Component (RC)

single parents and dual military couples with dependent family members.

Chapter 17

Legal Assistance

302
B. AR 600-20, para 5-5, requires those soldiers to implement a Family Care Plan to provide for the care of their

family members when military duties prevent the soldier from doing so.

1. Plans must be made to ensure dependent family members are properly and adequately cared for when the

soldier is deployed, on TDY, or otherwise not available due to military requirements.

2. RC soldiers are subject to these policies and regulations. They are required to maintain valid Family Care

Plans to ensure their availability for active duty during a mobilization (see AR 600-20, para 5-5h, which

includes IRR, IMA, Standby Reserve, Cat I and II retires, and Inactive NG personnel).

C. All married soldiers who have dependent family members are encouraged, even if not required by the regulation,

to complete and maintain a Family Care Plan.

D. Family Care Plan Responsibility.

1. Commanders have responsibility for ensuring soldiers complete the Family Care Plan.

a. The unit commander may designate an authorized representative to conduct Family Care Plan

counseling using DA Form 5304-R (Family Care Counseling Checklist) and to initial and sign the form

on behalf of the commander (AR 600-20, para 5-5g(1)).

b. The unit commander is the sole approval authority for DA Form 5305-R (Family Care Plan). This

responsibility will not be delegated (AR 600-20, para 5-5g(2)).

2. Affected soldiers are considered non-deployable until a Family Care Plan is validated and approved (AR

600-20, para 5-5k(3)).

E. In conjunction with Family Care Plan counseling, commanders will encourage, but not require, soldiers to

consult legal assistance attorneys for Will preparation.

F. JA 272, Legal Assistance Deployment Guide provides more information concerning Family Care Plans.

V. LEGAL ASSISTANCE SUPPORT PRIOR TO AND DURING DEPLOYMENT.

A. Preparation.

1. The term mobilization refers broadly to the preparation of both AA and RC units for deployment overseas

or other distant movements.

2. Effective legal support of the mobilization of AA and RC units depends on the following five factors:

a. Familiarity with the general legal support needed during mobilization, so that SJA offices are organized

and have prioritized functions to provide such support;

b. Knowledge of the requirements in each substantive area of the law so that all legal personnel are

properly trained, and proper references and forms are available;

c. Opportunities to participate in Corps/Division exercises to test the deployment plans and the training

provided;

d. Effective utilization of RC legal personnel wherever feasible; and

e. Establishment of good working relationships with key personnel within the Corps and Division.

Chapter 17

Legal Assistance

303
B. MOBILIZATION AND MOVE OUT

1. Legal assistance considerations that may arise and considerations that should be addressed from the point of

the alert, or notification of deployment, up to the time of actual deployment.

a. Establish sites to process deploying personnel rapidly. It may be necessary to draw upon other crosstrained attorneys in the office to assist in this effort.

b. Are there sufficient forms to handle last-minute legal assistance problems at departure site?

c. Spot-check deploying soldiers to ensure basic legal assistance needs have been met.

d. Notify judge advocates remaining at the installation of follow up legal assistance requirements.

e. If reservists will augment the SJA office, leave guidance.

f. Organize and initiate legal assistance briefings for dependents.

2. Equipment / Resources: Determine what will be available in theater; what supported unit will provide; what

appropriated or contingency funds will be available; and voltage used in theater (120 or 220).

C. In the Theater of Operations.

1. Legal Assistance in Theater. The nature of combat causes Legal Assistance services to become more

pronounced and take on significant immediate importance to the client, the command, and the servicing

attorney. The provision of legal assistance during combat deployments may occur anywhere within the

theater. As soon as possible, do the following:

a. Establish communications links with the Rear;

b. Establish courier/fax service to home station;

c. Identify means and modes of transportation to and from remote locations;

d. Anticipate problems arising with Casualty Assistance.

2. Casualty Assistance.

a. In addition to legal assistance problems arising at the deployment location, casualties may occur, both

on deployment and at home station. If so, the SJA elements, both on the exercise and with the rear

detachment, must assist the next of kin of the soldier, the command, and the Survivor Assistance

Officer (SAO). Among the many issues that attend the death of a soldier are reporting the casualty,

notifying the next of kin, appointing an SAO and providing legal advice to that officer, disposition of

the remains, including a possible autopsy, advising the next of kin concerning their legal rights and

benefits, appointing a summary court officer, and conducting a line of duty investigation. Predeployment preparation is essential.

b. Familiarity with DA Pam 608-33 (Casualty Assistance Handbook) and AR 600-8-1 (Army Casualty

Operations/Assistance/Insurance) is essential.

c. Judge advocates will also become involved in helping next of kin of soldiers missing in action or taken

prisoner. DoD 7000.14-R, Part 4 (40304), DoD Pay Entitlements Manual (1 Jan 93), permits the

Secretary of the Department concerned to initiate or increase an allotment on behalf of family members

if circumstances so warrant.

Chapter 17

Legal Assistance

304
d. Prior to deployment, soldiers should be encouraged to review closely their DD Form 93 (Record of

Emergency Data) which designates beneficiaries of pay and allowances.

D. Legal Resources Needed: See Checklists at the end of this chapter for a comprehensive list, but major items

include, Library Book Reader (CD containing ARs), Up-to-date electronic research tools; DL Wills/Quickscribe,

JAGC Personnel Directory, and Martindale Hubbell CD (or Martindale Hubbell Law Digest on LEXIS).

E. General Legal Assistance Considerations.

1. In the area of deployment, the Legal Assistance section should:

a. Respond to inquiries from soldiers in country.

b. Establish liaison with communication, transportation, and aviation elements for contact and courier

service with judge advocates in the rear echelon (the installation from which the deployment took

place).

c. Establish liaison with U.S. Consulate at deployment location for overseas marriage and adoption

coordination; in addition to emergency leave procedures.

2. At the home installation, the Legal Assistance section should:

a. Follow up on legal assistance cases referred by deployed LAOs.

b. Coordinate with communication, transportation, and aviation elements on the installation to ensure

contact and courier service with deployed LAOs.

c. Extend legal assistance office hours, as necessary, to handle legal assistance problems of working

dependents.

d. Continue legal assistance briefings for family members. Notice of these meetings should be mailed to

the individual, using previously obtained mailing addresses and be disseminated by post newspaper and

local television and radio media.

e. Coordinate with local banks and financial institutions to expect a higher usage of powers of attorney.

f. Coordinate with local courts concerning the failure of deployed members to appear.

g. Be prepared to brief and assist survivor assistance officers.

VI. DEATH ON ACTIVE DUTY / SURVIVOR BENEFITS

A. Judge Advocates are often asked for advice concerning survivor benefits in situations when a soldier is facing

imminent death. Advice may be sought from the command of a soldier or from the family of the soldier. The

crucial issue is whether the soldier should die on active duty or medically retire. Generally, the important

consideration is a maximization of benefits for the survivors. The Judge Advocate must consider a number of

factors before advising the client (command or family members).

B. Careful consideration of applicable survivor benefits is a significant part of the analytical process. Factors

favoring medical retirement are the availability of the Survivor Benefit Plan (SBP), availability of Service

Disabled Veterans Life Insurance (SDVI, $20,000), and higher medical retirement pay for soldiers retirement

eligible due to longevity. Factors favoring continued active duty are family risks for extensive medical costs,

eligibility for the death gratuity (not payable if death occurs more than 120 days after retirement), and additional

burial expenses.

Chapter 17

Legal Assistance

305
C. The Judge Advocate must do more than merely add numbers and determine the current available benefits. The

benefits available to surviving family members vary depending on the specific situation. There is no option that

is correct for every situation. For many situations, medical retirement is the advisable option because of the

availability of the SBP and SDVI. However, the longer the soldier is expected to survive before death the more

difficult the decision. The essential component for processing an imminent death case is having the treating

physician, the Physical Evaluation Board Liaison Officer (PEBLO), and the Medical Treatment Facility (MTF)

coordinate with the U.S. Army Physical Disability Agency before death is announced.

Chapter 17

Legal Assistance

306
CHECKLISTS

Table 3: Sample Ready Box

Item Quantity

Lap top computer/printer 2

DL Wills

Quickscribe

CIS

Manual Typewriter/ribbons/correction tape 2

Client Interview Cards (DA Form 2465, Jul 92) 100

Electrical extension cords 3

Will Cover Letters 200

Envelopes, 4 x 9 1⁄2 (DA) 50

Envelopes, 4 x 9 1⁄2 (plain) 50

Markers, red 10

Masking tape, rolls 2

Scotch Tape, rolls 5

Paper, Printer (Ream) 2

Paper, tablets 4

Pens, boxes 5

DA Form 4944-R (Jul 92) Report on Legal Assist. Services 10

Powers of Attorney (10 U.S.C. § 1044a Notary)

General 200

Blanks 50

Special Forms & Clauses (Check Cashing, Medical,

Guardianship, Use of Car, etc.)

50 ea.

Regulations & References (See Table 20-4)

Seals (authority of 10 U.S.C. § 1044a)* 2

Signs (Legal Assistance) 2

Staple removers 4

Stapler w/extra staples 4

Will Guides 3

Will Interview Worksheets 100

Chapter 17

Legal Assistance

307
Simple Will Forms 100

Routine Form Letters (See Table 19-6). 100 ea.

* 10 U.S.C. § 1044a only requires the signature of an authorized military notary as evidence of the notarization. Though

no seal is required, it does help to ensure acceptance of military-prepared legal documents by organizations and persons

outside the military.

Table 4: Deployment Legal Assistance Official References

Regulation Title

AR 27-3 The Army Legal Assistance Program (10

Sep 95)

AR 27-55 Notarial Services (10 Apr 97)

AR 600-8-101 Personnel Processing (In- and Out- and

Mobilization Processing) (26 Feb 93)

Indebtedness of Military Personnel (14 Mar

86); DoD Dir. 1344.9 (Indebtedness of

Military Personnel (Oct 1994)

AR 608-99 Family Support, Child Custody, and

Paternity (1 Nov 94)

DA PAM 608-33 Casualty Assistance Handbook (17 Nov 87)

DA PAM 608-4 A Guide for the Survivors of Deceased

Army Members (23 Feb 89)

Martindale-Hubbell Law Digests and Selected International

Conventions (most recent edition).

AR 600-15

Chapter 17

Legal Assistance

308
Table 5: TJAGSA Publications on the JAGCNet & CD

ROM

Publication # Title

JA 260 Soldiers & Sailors Civil Relief Act

JA 261 Real Property Guide

JA 262 Wills Guide

JA 263 Family Law Guide

JA 265 Consumer Law Guide

JA 267 Legal Assistance Office Directory

JA 271 Legal Assistance Office Administration

Guide

JA 272 Legal Assistance Deployment Guide

JA 274 Uniformed Services Former Spouses

Protection Act Guide

JA 276 Preventive Law Series

Table 6: Form Letters

Letter

Letter to creditor requesting extension of payment date because of

deployment.

Letter to landlord/mortgagor requesting extension because of deployment.

Letter: Soldiers and Sailors Civil Relief Act (e.g., request for stay of

proceedings; request for interest rate reduction to 6%).

IRS Forms requesting extension of filing deadline or local JAG office

form letter requesting extension because of deployment.

Form letters to state or municipal tax authorities requesting extension

because of deployment.

Legal Assistance Resources: See the Legal Assistance Database on JAGCNet for resources and links to resources.

Chapter 17

Legal Assistance

309
Ch

apter 17

Legal Assistance

310
CHAPTER 18

COMBATING TERRORISM

REFERENCES

1. 1944 Chicago Convention on International Civil Aviation, (international standards for

safeguarding civil aircraft), 14 C.F.R. 107-108.

2. 1963 Tokyo Convention on Offenses and Certain Other Offenses Committed on Board

Aircraft, P.L. 91-449; 84 Stat. 921.

3. 1970 Hague Convention for the Unlawful Seizure of Aircraft, see Anti-Hijacking Act of

1974, P.L. 93-366, 49 U.S.C. App. §§ 1472 (i-n).

4. 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of

Aircraft, (covers acts of sabotage such as bombings aboard aircraft while in flight), see

Comprehensive Crime Control Act of 1984, P.L. 98-473, 18 U.S.C. § 32.

5. 1971 Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes

Against Persons and Related Extortion That Are of International Significance, 27 UST

3949; TIAS 8413.

6. 1973 Convention on the Prevention and Punishment of Crimes Against Internationally

Protected Persons, (protects senior government officials and diplomats), see P.L. 94-467,

18 U.S.C., §§ 112, 1116, 878, 1201 (a) (4).

7. Convention on the Physical Protection of Nuclear Material, P.L. 97-351 18 U.S.C. § 831.

8. 1979 International Convention Against the Taking of Hostages, P.L. 98-473 18 U.S.C. §

1203.

9. 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving

International Aviation, which supplements the 1971 Montreal Convention on Civil

Aviation Safety by extending coverage to airports and aircraft on the ground, Sec. 60021

of the Violent Crime Control and Law Enforcement Act of 1994, P.L. 103-322.

10. 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime

Navigation, Sec. 60019 of the Violent Crime Control and Law Enforcement Act of 1994,

P.L. 103-322. The U.S. subsequently deposited its instruments of ratification for the

maritime and airports conventions Protocol for the Suppression of Unlawful Acts Against

the Safety of Fixed Platforms Located on the Continental Shelf

11. The 1991 Convention on the Marking of Plastic Explosives for the Purposes of Detection

(signed in Montreal in March, 1991) but not yet in force. The U.S. Senate gave its advice

and consent in November, 1993. The implementing legislation passed the Senate on June

7, 1995 as part of the Omnibus Counterrorism Bill, and is contained in the pending House

of Representatives version.

12. 10 U.S.C. § 371-382, Military Support to Law Enforcement

13. 10 U.S.C. §§ 331-334, Insurrections

14. 14 U.S.C. § 712, U.S. Coast Guard

15. 18 U.S.C. § 1385, Posse Comitatus Act

16. 32 U.S.C. § 112, Drug Interdiction and Counter Drug Activities

17. 42 U.S.C. §§ 5121-5204c, Stafford Act

18. 50 U.S.C. §§ 401-441d, National Security Act

19. 50 U.S.C. § 413, Intelligence Oversight Act of 1980

20. 50 U.S.C. §§ 2311- 2367, Weapons of Mass Destruction Act of 1996

21. 50 U.S.C. §§ 2251-2303, Civil Defense Act

22. National Defense Authorization Act for Fiscal Year 1991, P.L. 101-510, Section 1004,

Additional Support for Counter Drug Activities

23. National Defense Authorization Act for Fiscal Year 1997, D.L. 104-201, Section 1031,

Authority to Provide Additional Support for Counter-Drug Activities of Mexico

24. E.O. 12148, Federal Emergency Management

25. E.O. 12333, U.S. Intelligence Activities

Chapter 18

Combating Terrorism

311
26. E.O. 12472, Assignment of National Security and Emergency Telecommunications

Functions

27. E.O. 12656, Assignment of Emergency Preparedness Responsibilities

28. E.O. 13010, Critical Infrastructure Protection

29. NSD 66, Civil Defense

30. PDD 39, U.S. Policy on Counterterrorism (Unclassified Extract)

31. PDD 62, Combating Terrorism

32. PDD 63, Critical Infrastructure Protection

33. DoDD 2000.12, DoD Combating Terrorism Program

34. DoDD 2000.14, Draft, DoD Combating Terrorism Program Procedures

35. DoDD O-2000.12H, Protection of DoD Personnel and Activities Against Acts of

Terrorism and Political Turbulence

36. DoDI, O-2000.16, DoD Combating Terrorism Program Standards

37. DoDD 3020.26, Continuity of Operations, Polices and Planning

38. DoDD 3020.36, Assignment of National Security

39. DoDD 3025.1, Military Support to Civil Authorities

40. DoDD 3025.12, Military Support to Civil Disturbances

41. DoDM 3025.1M, Manual for Civil Emergencies

42. DoDD 3150.5, DoD Response to Improvised Nuclear Device

43. DoDD 3150.8, DoD Response to Radiological Incidents

44. DoDD 4000.19, Interservice and Intergovernmental Support

45. DoDM 5100.52M, Nuclear Weapon Accident Response Procedures

46. DoDD 5160.54, DoD Key Asset Protection Plan

47. DoDM C-5210.41-M, Nuclear Weapons Safety Manual

48. DoDD 5210.84, Security of DoD Personnel at U.S. Missions Abroad

49. DoDD 5240.1, DoD Intelligence Activities

50. DoDD 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components

that Affect United States Persons

51. DoDD 5240.6, Counterintelligence Awareness and Briefing Program

52. DoDD 5525.5, DoD Cooperation with Law Enforcement Officials

53. CJCSI 3710.01, Operational Support to Drug Law Enforcement Agencies

54. CJCSI 5261.01A, Combating Terrorism Readiness Initiatives Fund

55. DoD Civil Disturbance Plan, GARDEN PLOT

63. AR 381-10, U.S. Army Intelligence Activities

56. Joint Pub 2-0, Doctrine for Intelligence Support for Joint Operations

57. Joint Pub 3-05, Doctrine for Joint Operations

58. Joint Pub 3-05.3, Joint Special Operations Operational Procedures

59. Joint Pub 3-07.2, Joint Tactics, Techniques, and Procedures for Antiterrorism

60. Joint Pub 3-07.7, Joint Tactics, Techniques, and Procedures for Domestic Support

Operations

61. Joint Pub 3-10.1, Joint Tactics, Techniques, and Procedures for Base Defense

62. Joint Pub 3-54, Joint Doctrine for Operations Security

64. NGR 500-1/ANGI 10-8101, Military Support to Civil Authorities

65. NGB 500-2/ANGI 10-801, National Guard Counterdrug Support to Law Enforcement

66. AR 500-51, Support to Civilian Law Enforcement

67. AR 700-131, Loan and Lease of Army Material

68. SECNAVINST 5820.7B, Cooperation with Civilian Law Enforcement Officials

69. OPNAVINST 3440.1C, Navy Civil Emergency Management

70. AFI 10-801, Air Force Assistance to Civilian Law Enforcement Officials

71. AFI 10-802, Military Support to Civil Authorities

72. AFI 31-202, Working Dog Program

73. FM 100-19, Domestic Support Operations

74. DoD Report to Congress, Domestic Preparedness Program in the Defense Against

Weapons of Mass Destruction, May 1, 1997.

75. DoD Plan for Integrating National Guard and Reserve Component Support for Response

to Attacks Using Weapons of Mass Destruction, January 1, 1998.

Chapter 18

Combating Terrorism

312
76. President Clinton, A National Security Strategy for a New Century, October 1998.

INTRODUCTION

As a result of the United States superior military strength, foreign nations, non-state foreign organizations, and

domestic groups are more likely to resort to terror tactics rather than conventional military strikes. This means that more

than ever, civilian as well as military objects at home and abroad are vulnerable to attack. Further complicating the

problem is the ever-increasing availability of technology and weapons of mass destruction (WMD) traditionally only

within the domain of nation states. Historically, terrorist attacks were politically motivated and did not typically involve

mass casualties. However, the face of terrorism is changing. The availability of WMD, coupled with the increasing

emergence of religiously motivated terrorist groups and cults creates a volatile mix. Terrorist groups are now actively

seeking the maximum carnage possible. Recent publicized examples of terrorist attacks include the attack on the USS

Cole, bombings of U.S. Embassies in Africa, the Riyadh and Al Khobar bombings in Saudi Arabia, the downing of Pan

Am Flight 103 over Lockerbie Scotland, the Sarin Gas attack in the Tokyo subway, and the domestic bombings of the

World Trade Center in New York and the Federal Building in Oklahoma.

As the world moves from the relative stability of the bipolar Cold War era to the era of continuing disintegration and

reintegration of states, the use of terror tactics, according to many, will increase. Largely as a result of shifting and

weakened political power, world wide media coverage, and weapons availability, loosely organized groups, often

motivated by zealous religious or strong anti-government beliefs, see terrorism as a method to achieve their goals.

Furthermore, developing nation states that lack the resources to use aggressive traditional military tactics and techniques

will continue to sponsor terrorist groups and terrorist attacks. Terrorism provides a means to states without real military

power to attempt to influence world politics with force. State sponsored terrorism is appealing to developing nations

because of its lower risk. It is often difficult to link a state to a terrorist attack and sponsorship does not typically involve

costs equal to conventional attacks. It is often the terror such an attack produces that is the primary goal of a terrorist

attack because it is often far more effective than the actual direct harm caused by such an attack.

The Department of Defense (DoD) is not the lead agency for combating terrorism. However, DoD does play a

significant supporting role in several areas. DoD is responsible for providing technical assistance or forces when

requested by the National Command Authority (NCA). Moreover, DoD is also responsible for protecting its own

personnel, bases, ships, deployed forces, equipment and installations. Every commander at every level has the inherent

responsibility of planning for and defending against terrorist attacks. Similarly, every servicemember, family member,

and DoD Civilian, contractor and host nation laborer should be educated and alerted to possible terrorist attacks. The

Command Judge Advocate should participate in all foreign and domestic antiterrorism plans and in the implementation of

those plans. Command Judge Advocates assigned to units involved in counterterrorism should have a thorough

understanding of the units plans and missions.

Terrorism is defined in DoD Dir. 2000.12 as the calculated use of violence or threat of violence to inculcate fear;

intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or

ideological. The term combating terrorism involves both Counterterrorism and Antiterrorism.

Counterterrorism (CT) generally refers to offensive military operations designed to prevent, deter, and respond to

terrorism. It is a highly specialized, resource intensive military activity. Certain national special operations forces units

are prepared to execute these missions on order by the NCA. Combatant commanders maintain designated CT

contingency forces when national assets are not available. These programs are sensitive, normally compartmented, and

addressed in relevant National Security Decision Directives, National Security Directives, contingency plans and other

classified documents. Therefore, this subject is beyond the scope of this publication.

Antiterrorism (AT) consists of defensive measures to reduce the vulnerability of individuals and property to terrorist

attacks. Overseas (OCONUS), AT should be an integrated and comprehensive plan within each combatant command.

The AT plan is normally thought of in two primary phases; proactive and reactive. The proactive phase includes the

planning, resourcing, preventive measures, preparation, awareness, education, and training prior to an incident. The

reactive phase includes the crisis management actions in response to an attack. In the continental United States

(CONUS), DoD role is generally that of providing expert technical support in the area of consequence management.

Chapter 18

Combating Terrorism

313
JUDGE ADVOCATE INVOLVEMENT

As a member of the Crisis Management Team, the judge advocate must provide essentially the same kind of legal

advice to the commander of a force deployed overseas as he would provide in the event of a terrorist incident occurring at

a CONUS installation. The unit must be prepared to defend itself, and legal questions, such as limitations, if any, on the

use of force, and on the use of deadly force, as well as the question of who may exercise jurisdiction over a particular

incident, are issues that must be addressed prior to deployment.

The commander of a deployed unit, in addition to providing for force security and terrorism counteraction, must

ensure that the soldiers are operating under clear, concise rules of engagement, regardless of the deployment location.

Soldiers must be aware of their right to defend themselves, even while participating in a peacetime exercise. They must

also be aware, however, of any restraints on the use of force. Note that the CJCS SROE include any force or terrorist

unit (civilian, paramilitary, or military) within the definition of Hostile Force.

Judge advocates advising units involved in counterterrorism operations should be particularly cognizant of issues

concerning: use of force/ROE, weapons selection and employment, collateral damage, defense of third parties, targeting

(determination of proper targets), and terminology (response, reprisal, self-defense, and anticipatory self-defense). PDD

39 should be reviewed.

LEAD AGENCIES

DoJ is normally the lead agency for domestic terrorism and the FBI is the lead agency within DoJ for operational

responses to terrorist incidents. The DoJ, specifically the FBI, is responsible for all search and recovery operations

involving nuclear weapons conducted in the United States, District of Columbia, Commonwealth of Puerto Rico, and

U.S. possessions and territories, including those conducted on military installations. DoS is the lead agency for acts not

under FBI responsibility

FAA is the lead agency for terrorist incidents that occur aboard an aircraft in flight. It is also responsible for

investigating and preventing aircraft piracy and for informing commercial air carriers and their passengers regarding any

terrorist threat information.

The U.S. Coast Guard (USCG) is responsible, within the limits of U.S. territorial seas, for reducing the risk of a

maritime terrorist incident by diminishing the vulnerability of ships and facilities through implementation of security

measures and procedures. USG is the lead agent responding to terrorist actions that occur in maritime areas subject to

U.S. jurisdiction. The USCG and FBI have an interagency agreement (Commandant Instruction 16202.3A) to cooperate

with each other when coordinating counterterrorism activities.

DoD is the lead agency, at least through 1999, for carrying out a program to provide civilian personnel of Federal,

State or local agencies with training and expert advise regarding emergency responses to use or threatened use of a

weapon of mass destruction or related materials.

All other Federal agencies possessing resources for responding to terrorism are linked together through agency

command centers and crisis management groups to ensure effective coordination of the U.S. response. Formal

interagency coordination of national policy and operational issues to combat terrorism occurs through the NSC and in the

intelligence community. The Coordinating Sub-Group of the Deputies Committee, made up of representatives from State,

Justice, DoD, CJCS, CIA and FBI, deals with and tries to reach consensus on terrorism policy and operational matters and

makes recommendations to the Deputies Committee or through the NSA to the President.

AUTHORITY

Criminal Actions. Most terrorist acts are federal crimes whether committed during peacetime or in military operations.

Terrorists, by definition, do not meet the four requirements necessary for combatant status: (wear uniforms or other

distinctive insignia, carry arms openly, be under command of a person responsible for group actions, and conduct their

operations in accordance with the laws of war). Only combatants can legitimately attack proper military targets. For this

reason, captured terrorists are not afforded the protection from criminal prosecution attendant to prisoner of war status.

Chapter 18

Combating Terrorism

314
However, common article 3 of the 1949 Geneva Conventions, which requires that noncombatants be treated in a humane

manner, also applies to captured terrorists.

Jurisdiction. In peacetime military operations, most terrorist acts are federal crimes This is also true in police actions to

maintain a legitimate government. However, in an internationally recognized war or hostilities short of war (regional or

global), terrorists can be tried under local criminal law or under military jurisdiction by either a court-martial or military

tribunal Commanders Authority. A commanders authority to enforce security measures to protect persons and property

is paramount during any level of conflict. Commanders must coordinate with their legal advisers to determine the extent

of their authority to combat terrorism.

CONSTITUTIONAL AND STATUTORY GUIDANCE

The fundamental restriction on the use of the military in law enforcement are contained in the Posse Comitatus Act

(PCA), which is discussed at length in Chapter 19, Domestic Operations. However, several of the exceptions to the PCA

are relevant to DoDs contribution to the fight against terrorism. A discussion of the exceptions follows:

Constitutional Exceptions: The President, based on his inherent authority as the Executive, has the authority to use the

military in cases of emergency and to protect federal functions and property. Military commanders, by extension of this

authority, may respond in such cases as well (Immediate Response Authority). In the case of civil disturbances, which

may result from a terrorist act, military commanders may rely on this authority, which is contained in DoD Directive

3025.12, discussed in the previous section of this chapter.

Generally, to cope with domestic emergencies and to protect public safety an Emergency Rule has evolved: When the

calamity or extreme emergency renders it dangerous to wait for instructions from the proper military department, a

commander may take whatever action the circumstances reasonably justify. However, the commander must comply with

the following:

1. Report the military response to higher headquarters, e.g. in the Army, the Director of Military Support

(DOMS) at HQDA, DCSOPS should be contacted.

2. Document all facts and surrounding circumstances to meet any subsequent challenge of impropriety.

3. Retain military response under the military chain of command.

4. Limit military involvement to the minimum demanded by necessity

5. Emergency situations include, but are not limited to, the following:

(a) Providing civilian or mixed civilian and military fire-fighting assistance where base fire departments

have mutual aid agreements with nearby civilian communities.

(b) Providing emergency explosion ordnance disposal (EOD) service

(c) Using military working dog (MWD) teams in an emergency to aid in locating lost persons

(humanitarian acts) or explosive devices (domestic emergencies).

Statutory Exceptions: 10 U.S.C. §§ 331-334 is the primary statutory exception pertinent to terrorism scenarios. A

terrorist incident may well qualify as a civil disturbance. Triggering these statutes permits the active component to take

on law enforcement function, subject to the policy considerations discussed in the preceding section. Federalization of

the National Guard, in such a case, will not affect the Guards functioning as they would, obviously, not be excepted from

the PCA as well. For more information on these statutes, see the preceding section. Statutory exceptions, in addition to

some lesser known statutes that contain exceptions to the PCA:

1. To assist the Department of Justice in cases of offenses against the President, Vice President, members of

Congress, the Cabinet, a Supreme Court Justice, or an internationally protected person. 18 U.S.C. §§ 351, 1116, 1751.

Chapter 18

Combating Terrorism

315
2. To assist the Department of Justice in enforcing 18 U.S.C. § 831, dealing with prohibited transactions involving

nuclear materials. This statute specifically authorizes the use of DoD assets to conduct arrests and searches and seizures

with respect to violations of the statute in cases of emergency, as defined by the statute.

3. 18 U.S.C. § 382 allows DoD to assist the Department of Justice in enforcing 18 U.S.C. § 175 & 2332, during an

emergency situation involving chemical or biological weapons of mass destruction. DoD support in WMD situations also

appears in 50 U.S.C. §§ 2311- 2367, Weapons of Mass Destruction Act of 1996. These statutes specifically authorize the

use of DoD assets and in very limited situations provide authorization for DoD to arrest, search and seize.

Vicarious Liability. Commanders at all echelons should be aware of the legal principle of vicarious liability in planning

and implementing antiterrorist measures. This principle imposes indirect Legal responsibility upon commanders for the

acts of subordinates or agents. For example, willful failure on the part of the commander or a subordinate to maintain a

trained and ready reaction force as required by regulation, could be construed as an act taking the commander out of the

protected position found in being an employee of the Federal Government; thus making the commander subject to a civil

suit by any hostages injured. Civil or criminal personal liability may result from unlawful acts, negligence, or failure to

comply with statutory guidance by subordinates or agents. With the increasing number of civilian contract personnel on

military installations and the sophistication of terrorist organizations, commanders should pay particular attention to

meeting regulatory requirements and operating within the scope of their authority. The legal principle of vicarious

liability, long established in the civilian community, has only recently applied to the military community. In this right, the

command legal adviser has become increasingly important to the commander in planning, training and operational phases

of the antiterrorist program.

JURISDICTION AND AUTHORITY FOR HANDLING TERRORIST INCIDENTS

Jurisdiction Status of Federal Property. In determining whether a Federal or state law is violated, it is necessary to look

not only to the substance of the offense but to where the offense occurs. In many cases, the location of the offense will

determine whether the state or Federal Government will have jurisdiction to investigate and prosecute violations. There

are four categories of Federal territorial jurisdiction: exclusive, concurrent, partial, and proprietary.

1. Exclusive jurisdiction means that the Federal Government has received, by whatever method, all of the authority

of the state, with no reservations made to the state except the right to serve criminal and civil process. In territory that is

under the exclusive jurisdiction of the United States, a state has no authority to investigate or prosecute violations of state

law. The Assimilative Crimes Act, 18 U.S.C. § 13, however, allows the Federal Government to investigate and prosecute

violations of state law that occur within the special maritime and territorial jurisdiction of the United States.

2. Concurrent jurisdiction means that the United States and the state each have the right to exercise the same

authority over the land, including the right to prosecute for crimes. In territory that is under the concurrent jurisdiction of

the United States and a state, both sovereigns have the authority to investigate or prosecute violations of Federal and state

law respectively. In addition, the Federal Government may prosecute violations of state law under the Assimilative

Crimes Act.

3. Partial jurisdiction refers to territory where the U.S. exercises some authority and the state exercises some

authority beyond the right to serve criminal and civil process, usually the right to tax private parties. In territory that is

under the partial jurisdiction of the United States, a state has no authority to investigate or prosecute violations of state

law, unless that authority is expressly reserved. The Federal Government may, however, prosecute violations of state law

under the Assimilate Crimes Act.

4. Proprietary jurisdiction means that the United States has acquired an interest in, or title to, property but has no

legislative jurisdiction over it. In territory that is under the proprietary jurisdiction of the United States, the United States

has the authority to investigate and prosecute non-territory-based Federal offenses committed on such property, such as

assault on a Federal officer. This authority does not extend to investigations and prosecution of violations of state laws

under the Assimilative Crimes Act and Federal Crimes Act of 1970. The state has the authority to investigate and

prosecute violations of state law that occur on such territory.

Chapter 18

Combating Terrorism

316
Federal Authority. Several Federal criminal statutes apply to terrorist activities committed in the U.S. or against U.S.

nationals or interests abroad. Some deal with conduct that is peculiar to terrorism, for example, 18 U.S.C. § 2332

prohibiting murder or assault of U.S. nationals overseas, when the AG certifies that the crime was intended to coerce,

intimidate, or retaliate against a civilian population. Other federal statutes prescribe conduct that is a crime for anyone

but in which a terrorist may engage to accomplice his purposes, for example, 18 U.S.C. § 32 (destruction of aircraft or

aircraft facilities, 18 U.S.C. § 1203 (hostage taking), and 49 U.S.C. § 46502 (aircraft piracy). The Assimilative Crimes

Act, finally, will allow the Federal Government to investigate and prosecute violations of state law regarding terrorist acts

or threats that occur within the exclusive concurrent, or partial jurisdiction of the United States, thereby giving the Federal

Government investigative and prosecutorial jurisdiction over a wide range of criminal acts. Once a violation of Federal

law occurs, the investigative and law enforcement resources of the FBI and other Federal enforcement agencies become

available, and prosecution for the offense may proceed through the Office of the United States Attorney.

Federal and State Concurrent Authority. In some cases, terrorist acts may be violations of state law as well as Federal

Law. In the situation, both state and Federal enforcement authorities have power under their respective criminal codes to

investigate the offense and to institute criminal proceedings. If a terrorist act is a violation of both Federal and state law,

then the Federal Government can either act or defer to the state authorities depending on the nature of the incident and the

capabilities of local authorities. Even where the Federal Government defers to state authorities, it can provide law

enforcement assistance and support to local authorities on request. The choice between Federal or state action is made by

the prosecuting authority. However, successive prosecutions are possible even where Federal and state law proscribe

essentially the same offense, without contravening the Fifth Amendment prohibition against double jeopardy. (Recall

Federal and state prosecutions re: Oklahoma City Bombing) Two relevant factors regarding law enforcement

responsibility for a given incident are:

1. The capability and willingness of state or Federal authorities to act

2. The importance of the state or Federal interest sought to be protected under the criminal statute.

FEDERAL AGENCIES AND THE MILITARY

Overview. The primary Federal organizations dealing with terrorism management are the National Security Council

(NSC), the Department of State (DoS), and the Department of Justice (DoJ).

The National Security Council. The NSC formulates U.S. policy for the President on terrorist threats that endanger U.S.

interests.

NSCs Coordinating Sub-Group of the Deputies Committee. This Committee is comprised of representatives from State,

Justice, DoD, CJCS, CIA and FBI. The Sub-Group deals with and tries to reach consensus on terrorism policy and

operational matters and makes recommendations to the Deputies Committee or through the National Security Advisor to

the President.

Department of Justice. DoJ is normally responsible for overseeing the Federal response to acts of terrorism within the

U.S.. The U.S. Attorney General, through an appointed Deputy Attorney General, makes major policy decisions and

legal judgments related to each terrorist incident as it occurs. In domestic terrorism incidents the AG will have

authorization to direct a FBI-led DEST (Domestic Emergency Support Team) an ad hoc collection of interagency experts.

Federal Bureau of Investigation. The FBI has been designated the primary operational agency for the management of

terrorist incidents occurring within the U.S.. When a terrorist incident occurs, the lead official is generally the Special

Agent in Charge (SAC) of the field office nearest the incident and is under supervision of the Director of the FBI. The

FBI maintains liaison at each governors office. Because of the presence of concurrent jurisdiction in many cases, the

FBI cooperates with state and local law enforcement authorities on a continuing basis. In accordance with the Atomic

Energy Act of 1954, the FBI is the agency responsible for investigating a threat involving the misuse of a nuclear

weapon, special nuclear material, or dangerous radioactive material. For an emergency involving terrorism or terrorist

acts involving chemical or biological weapons of mass destruction the FBI also has the lead. In these efforts, the FBI

cooperates with the Departments of Energy, DoD, the Nuclear Regulatory Commission, and the Environmental

Chapter 18

Combating Terrorism

317
Protection Agency as well as several states that have established nuclear, chemical & biological and/or weapons of mass

destruction threat emergency response plans.

Department of Defense. DoD Directive 2000.12 now proscribes that the Assistant Secretary of Defense (Special

Operations and Low Intensity Conflict - ASD-SO/LIC) has the lead role within the Department of Defense in countering

domestic terrorist incidents where U.S. forces may be used. The Nunn-Luger Bill calls for the military to maintain at

least one domestic terrorism rapid response team composed of members of the Armed Forces and employees of DoD with

the appropriate expertise. DoD has technical organizations and tactical units such as the Chemical, Biological Defense

Command, the U.S. Army EOD Group, the Defense Technical Response Group and the U.S. Army TEUs, that can assist

the FFBI on site in dealing with chemical and biological incidents, such as identification of contaminants, sample

collection and analysis, limited decontamination, medical diagnosis and treatment of casualties and render safe procedure

for WMD devices. DOMS will serve as the executive agent for all domestic consequence support. However, the Attorney

General, through the FBI, will remain responsible for coordinating :

1. The activities of all Federal agencies assisting in the resolution of the incident and in the administration of justice

in the affected areas.

2. These activities with those state and local agencies similarly engaged.

For the military planner in the United States, its territories and possessions, this relationship between DoJ and the DoD

requires the development of local memorandums of agreement, or understanding, between the installation, base, unit or

port, and the appropriate local FBI office. This precludes confusion in the event of an incident. These local agreements,

because of military turnover and reorganization, should be reviewed and tested annually.

Military Authority. Upon notification of Presidential approval to use military force, the Attorney General will advise the

Director of the FBI who will notify the SAC at the terrorist incident scene. Concurrently the SECDEF will notify the onscene military commander. Nothing precludes the presence of the military liaison to respond and keep the military chain

of command informed. The military commander and the SAC will coordinate the transfer of operational control to the

military commander. Responsibility for the tactical phase of the operation is transferred to military authority when the

SAC relinquished command and control of the operation and it is accepted by the on-site military commander. However,

the SAC may revoke the military force commitment at any time before the assault phase if the SAC determines that

military intervention is no longer required and accomplished without seriously endangering the safety of military

personnel or others involve in the operation. When the military commander determines that the operation is complete and

military personnel are no longer endanger, command and control will be promptly returned to the SAC.

MILITARY INSTALLATION COMMANDERS RESPONSIBILITIES

PDD-39 directs federal agencies to ensure that the people and facilities under their jurisdiction are protected against

terrorism. This applies to DoD facilities both abroad and in the U.S. In response to a Downing Assessment Task Force

recommendation concerning the Khobar Towers bombing, DoD and the State Dept. are reviewing their responsibilities to

protect U.S. military and personnel assigned overseas.

Domestic Incidents. Although the FBI has primary law enforcement responsibility for terrorist incidents in the United

States (including its possessions and territories), installation commanders are responsible for maintaining law and order

on military installations. Contingency plans should address the use of security force to isolate, contain, and neutralize a

terrorist incident within the capability of installation resources. In the United States, installation commanders will

provide the initial and immediate response to any incident occurring on military installations to isolate and contain the

incident. The FBI will take the following steps:

1. The senior FBI official will establish liaison with the command center at the installation. If the FBI assumes

jurisdiction, the FBI official will coordinate the use of FBI assets to assist in resolving the situation; e.g., hostage rescue

team, public affairs assets.

2. If the FBI assumes jurisdiction, the Attorney General will assume primary responsibility for coordinating the

Federal law enforcement response.

Chapter 18

Combating Terrorism

318
3. If the FBI declines jurisdiction, the senior military commander will take action to resolve the incident.

4. Even if the FBI assumes jurisdiction, the military commander will take immediate actions as dictated by the

situation to prevent loss of life or to mitigate property damage before the FBI response force arrives.

5. In all case, command of military elements remains within military channels.

6. Response plans with the FBI and Service agencies should be exercised annually at the installation and base level

to ensure the plans remain appropriate.

Foreign Incidents. For foreign incidents, the installation commanders responsibilities are the same as for domestic

incidentswith the added requirement to notify the host nation and DoS. Notification to DoS is made at the combatant

commander level. In all AORs, existing contingency plans provide guidance to the installation commander regarding

notification procedures. DoS has the primary responsibility for dealing with terrorism involving Americans abroad. The

installations response is also subject to agreements established with the host nation. Such agreements, notwithstanding,

the Standing Rules of Engagement (CJCS Instruction 3121.01, para 1.d.), make it clear that the commander retains the

inherent right and obligation of self-defense even in such situations.

The response to off-installation foreign incident is the sole responsibility of the host nation. U.S. military assistance, if

any, depends on the applicable status-of-forces agreement (SOFA) or memorandum of understanding (MOU) and

coordination through the U.S. embassy in that country. Military forces will not be provided to host-nation authorities

without a directive from the Department of Defense that has been coordinated with DoS. The degree of DoS interest and

the involvement of U.S. military forces depend on the incident site, nature of the incident, extent of foreign government

involvement, and the overall threat to U.S. security.

HOMELAND DEFENSE INITIATIVE

Due to the increased availability of WMD and the increased threat of terrorist acts at home and abroad, the U.S.

Government and its agencies are taking a closer look at how the United States can best protect itself against both

traditional and terrorist attacks. Agencies such as DoJ, DoD, Department of Energy (DOE), the Intelligence Community,

Federal Emergency Management Agency (FEMA), Department of the Treasury, Department of Transportation (DOT),

Department of Health and Human Services (DHHS), Environmental Protection Agency (EPA), and the Federal Aviation

Administration, are working together on a project referred to as the Homeland Defense Initiative (HDI). HDI is an

integrated and coordinated plan to defend against and respond to attacks against the United States homeland. For the

purposes of HDI, attacks include terrorist acts, information warfare, ballistic missile attacks, transnational threats, attacks

on critical infrastructure and WMD incidents. HDI participants are working to strengthen the federal, state and local

governments ability to defend the United States territory and citizens from attack, to coordinate crisis and response

management of WMD incidents, and to protect critical assets including critical infrastructure and cyber-based systems.

HDI may be extended to counterdrug, disaster relief, migrant operations and civil disobedience operations.

With the exception of defending against direct attack, providing direct attack deterrence, and protecting critical

national defense assets, DoDs role in HDI primarily involves providing military forces in support of civilian federal,

state, and local agencies. However, a simultaneous domestic terrorist attack on critical infrastructure during overseas

operations could have a significantly negative affect on the ability of the United States to commit the strategic reserve.

Attacks on domestic roadways, airports, communications systems, electrical power plants, and computer networks,

would, in many cases, delay or prevent the deployment of United States combat power. Although domestic terrorism is

generally viewed as criminal activity, the ramifications of such an attack directly impact force projection capabilities as

well as raising force protection issues. This is especially true where the terrorism is state sponsored or where WMD are

involved.

The nature of a WMD attack places a burden on the local response community that it may not be able to bear.

Conversely, DoD may need the assistance of civilian assets in the event of an attack on or near a military installation.

DoD is postured to support local, state and federal government agencies in planning for and responding to domestic

emergencies. Active Duty, National Guard, and Reserve forces posses expertise, trained manpower, and equipment that

can support response to chemical, biological, radiological attacks at DoD installations and in civilian communities.

Chapter 18

Combating Terrorism

319
Expert and capable response organizations like Explosive Ordinance Disposal teams, the Armys Technical Escort Unit,

and the Marine Corps Chemical Biological Incident Response Force have been involved in the development of response

plans and procedures.

For the purpose of HDI, a definition of WMD may include any weapon or device that has the capability, to cause

death or serious bodily injury to a significant number of people through the release, dissemination, or impact of toxic or

poisonous chemicals or their precursors; a disease organism; or radiation or radioactivity.

303 Actions with respect to a

WMD incident can be divided into two tracks. Crisis Management is the actions taken to prevent WMD attacks, activities

taken against the perpetrators and efforts to combat the civil unrest that may follow. Crisis management is within the

purview of local, state and federal law enforcement. Within the federal government, the FBI is the lead agency. DoD

support in this area is generally provided through the Military Support to Civil Authority and Military Assistance for Civil

Disturbances directives described above and in Chapter 19, Domestic Operations. When directed by the NCA, certain

Special Operations Forces provide assistance to civilian law enforcement involved in crisis management.

Consequence Management on the other hand is those activities taken in response to reduce or limit the affects of a

WMD incident on the population and environment. FEMA is generally the lead agency in Consequence Management

operations. DoD expertise and technology is particularly valuable in the area of consequence management.

When directed by the NCA, Joint Forces Command, through FORSCOM, establishes and deploys a Response Task

Force (RTF) to the designated Joint Operations Area (JOA) to support the Lead Federal Agency (LFA) in crisis and

consequence management during a WMD incident. There are two RTFs under FORSCOMs control; RTF West,

composed of Fifth U.S. Army assets, and RTF East, First U.S. Army forces.

Below is a chart depicting the makeup of an RTF broken down by function and element. The RTF is task organized

depending on the crisis.

Chapter 18

Combating Terrorism

320

303 10 U.S.C. § 2302, Weapons of Mass Destruction.

CBIRF

Tech Escort

Labs

EOD

Defense Coordinating

Officer

Communications Information Security Engineering

Triage NBC Medical Transportation

Mortuary

Affairs

Trauma/

Critical Care

Preventative

Medicine

Logistics Stress

Management

Assessment Decontamination Reconnaissance Mass

Care

Commander

Response Task Force Elements

Emergency Preparedness

Liaison Officers
In addition to the RTFs, National Guard Rapid Assessment and Initial Detection (RAID) teams can be sent to a

WMD incident. These RAID teams are Title 32 full-time National Guard soldiers under the command of their respective

governors. The governor of a state in which there is a RAID team determines when to commit RAID teams in their state.

RAID teams in one state may be dispatched by the governor to another state requesting aid. Eventually, RAID teams will

be responsible for incidents within a 150 radius of their location. The goal is to have ten RAID teams mission ready by

January 2000, with another five by the years end and eventually at least one RAID team in every state. While the RAID

teams are under state control, Joint Forces Command has oversight responsibility through the 1

st and 5th Armies. If a

RAID team is federalized, the team is OPCON to the RTF.

RAID teams deploy to an area, assess a suspected nuclear, biological, chemical, or radiological event in support of local

leaders, advise civilian responders and facilitate requests for assistance to expedite the arrival of additional state and

federal assets. The primary RAID team may consist of approximately 15 full-time National Guard soldiers. Many states

are also establishing secondary, or part-time RAID teams units capable of performing RAID type missions. Unless

federalized, ARNG forces operating under Title 32 of the U.S. Code and not within the purview of the Posse Comitatus

act.

Chapter 18

Combating Terrorism

321
Ch

apter 18

Combating Terrorism

322
CHAPTER 19

DOMESTIC OPERATIONS

REFERENCES

11. DoD 3025.1-M, Manual for Civil Emergencies, June 1994.

12. DoDD. 3025.12, Military Assistance for Civil Disturbances, 4 February 1994.

1. 18 U.S.C. § 1385, Posse Comitatus Act.

2. 10 U.S.C. §§ 371-382, Chapter 18, Military Support For Civilian Law Enforcement Agencies.

3. 10 U.S.C. §§ 331-335, Chapter 15, Insurrections.

4. 32 U.S.C. § 112, Drug Interdiction and Counter-Drug Activities.

5. 42 U.S.C. §5121, et seq., as amended (Stafford Act).

6. 50 U.S.C. § 2301-2317, Chapter 40, Defense Against Weapons of Mass Destruction.

7. National Defense Authorization Act for Fiscal Year 1991, P.L. 101-510, Section 1004, as

amended, Additional Support for Counter-Drug Activities.

8. 44 CFR Part 206, Federal Emergency Management Agency.

9. DoDD 3025.15, Military Assistance to Civil Authorities, 18 February 1997.

10. DoDD. 3025.1, Military Support to Civil Authorities, 15 January 1993.

13. DoDD. 5525.5, DoD Cooperation With Civilian Law Enforcement Officials, 15 January 1986,

through Change 1, 20 December 1989.

14. DoDI 5525.10, Using Military Working Dog Teams to Support Law Enforcement Agencies in

Counterdrug Missions, 17 September 1990.

15. DoDD 5210.56, Use of Deadly Force and the Carrying of Firearms by DoD Personnel

Engaged in Law Enforcement and Security Duties, 25 February 1992.

16. Secretary of Defense Memorandum of 6 October 1998, Subj: Military Support to

Counternarcotics Activities

17. Deputy Secretary of Defense Memorandum of 29 June 1996, Subj: DoD Training Support to

U.S. Civilian Law Enforcement Agencies.

18. DoD Civil Disturbance Plan GARDEN PLOT.

19. Office of the Defense Coordinator for Drug Enforcement Policy and Support Policy of 26 Jan

95, Priorities, Policies, and Procedures for Department of Defense Counterdrug Support to

Domestic Drug Law Enforcement Agencies.

20. NGR 500-1/ ANGI 10-8101, Military Support to Civil Authorities, 1 February 1996.

21. NGR 500-2/ ANGI 10-801, National Guard Counterdrug Support, 31 March 2000.

22. CJCS Instruction 3121.02, Rules on the Use of Force by DoD Personnel Providing Support to

Law Enforcement Agencies Conducting Counterdrug Operations in the United States, 31 May

2000.

23. CJCS Instruction 3710.01, Delegation of Authority for Approving Operational Support to

Drug Law Enforcement Agencies and Counterdrug-Related Deployment of DoD Personnel, 28

May 1993 (under revision).

24. AR 190-12, Military Working Dogs, 30 September 1993.

25. AR 190-14, Carrying of Firearms and Use of Force for Law Enforcement and Security Duties,

12 March 1993.

26. AR 500-51, Support to Civilian Law Enforcement, 1 July 1983.

27. AR 500-60, Disaster Relief, 1 August 1981.

28. AR 500-50, Civil Disturbances, 21 April 1972.

29. AR 700-131, Loan and Lease of Army Materiel, 1 September 1996.

30. FM 19-15, Civil Disturbances, 25 November 85.

31. FM 100-19, Domestic Support Operations, 01 July 1993.

32. SECNAVINST 5820.7B, Cooperation With Civilian Law Enforcement Officials, 28 March

1988.

33. OPNAVINST 3440.16C, Navy Civil Emergency Management Program, 10 March 1995

Chapter 19

Domestic Operations

323
34. OPNAVINST 5585.2B, Department of the Navy Military Working Dog (MWD) Program, 25

August 1997.

35. AFI 10-801, Assistance to Civilian Law Enforcement Agencies, 15 April 1994.

36. AFI 10-802, Military Support to Civil Authorities, 25 February 1994.

37. AFI 31-202, Military Working Dog Program, 1 August 1999.

38. MCO 3440.7A, Support to Civil Authorities, 13 October 1998.

OVERVIEW.

The militarys mission is to fight and win the nations wars. DoD will cooperate with civil authorities, but the

relationship is generally one of supportthe civilian authorities retain primary responsibility. This chapter will explore

the various authorities and restrictions in the area of domestic operations. The chapter will follow the following outline:

Starting point for all DoD support: DoDD 3025.15.

Civil Disasters and Emergencies: Stafford Act, DoDD 3025.1.

Support to Law Enforcement.

Posse Comitatus Act, 18 U.S.C. § 1385.

Who? Applies to persons on active federal military service.

What? Direct enforcement of the civil law, but not activities which are military functions.

Where? Generally, no extraterritorial effect.

Effect? Criminal penalties.

Express exceptions.

Civil Disturbances: Insurrection Act (10 U.S.C. §§ 331-334); DoDD 3025.12.

Sharing Information: 10 U.S.C. § 371, DoDD 5525.5.

Loan of Equipment: 10 U.S.C. § 372, DoDD 5525.5.

Expert Advice and Training: 10 U.S.C. § 373, DoDD 5525.5.

Maintenance and Operation of Equipment: 10 U.S.C. § 374, DoDD 5525.5.

Law Enforcement Detachments: 10 U.S.C. § 379.

Emergencies Involving Chemical or Biological Weapons: 10 U.S.C. § 382.

Miscellaneous Exceptions: DoDD 5525.5

Counterdrug Support.

Detection and Monitoring: 10 U.S.C. § 124.

National Guard: 32 U.S.C. § 112.

Training and other support: Section 1004, FY 91 NDAA; CJCSI 3710.01.

Chapter 19

Domestic Operations

324
GUIDE FOR PRACTICE.

Respond to situations requiring immediate action to save lives, prevent human suffering, or mitigate great property

damage under imminently serious conditions. Notify the appropriate approval authority as soon as possible.

Consult DoDD 3025.15.

Review the 6 criteria from DoDD 3025.15 for support: legality, lethality, risk, cost, appropriateness, and readiness.

Note that SECDEF has, in certain circumstances, changed the approval authority (i.e., he has reserved the authority to

himself).

Consult the appropriate DoD/Service regulation.

Find and forward the requests to the appropriate approval authority.

Remember the fiscal implications: most support is reimbursable, so ensure costs are captured.

DODD 3025.15

A. This directive governs all DoD military assistance provided to civil authorities within the 50 States, District of

Columbia, Puerto Rico, U.S. possessions, and territories. It provides criteria against which all requests for support shall

be evaluated. The directive addresses them to approval authorities, but commanders at all levels should use them in

providing a recommendation up the chain of command.

1. Legality - compliance with the law.

2. Lethality - potential use of lethal force by or against DoD forces.

3. Risk - safety of DoD forces.

4. Cost - who pays, impact on DoD budget.

5. Appropriateness - whether the requested mission is in the interest of DoD to conduct.

6. Readiness - impact on DoDs ability to perform its primary mission.

B. Approval Authority. The directive changes the approval authority, in certain cases, from that set forth in older

directives, but the older directives have not been changed and are otherwise applicable. For this reason, this directive

should always be the first directive consulted.

1. The Secretary of Defense has reserved to himself the authority to approve DoD support for:

a. Civil Disturbances.

b. Responses to acts of terrorism.

c. Support that will result in a planned event with the potential for confrontation with specifically

identified individuals or groups, or which will result in the use of lethal force.

2. When CINC-assigned forces are to be used, there must be coordination with the Chairman of the Joint

Chiefs of Staff. After coordination with the affected CINC, CJCS will determine whether there is a significant issue

requiring SECDEF approval.

Chapter 19

Domestic Operations

325
3. Immediate response authority in the local commander is not affected.

CIVIL DISASTERS AND EMERGENCIES

A. The statutory basis for providing relief is the Stafford Act. Under the U.S. constitutional system the state has

primary responsibility for responding to disasters. The Stafford Act and its predecessors (which date back to 1950)

provide a means by which the Federal Government can assist State governments in fulfilling those responsibilities.

DoDD 3025.1 and DoD 3025.1-M provide all the information necessary for practitioners in this area.

B. Five mechanisms which trigger involvement of Federal troops.

1. Presidents emergency 10-day authority. 42 U.S.C. § 5170b(c). The President may use DoD to perform

work essential for the preservation of life and property. This is done prior to any Presidential declaration of an

emergency or major disaster. Emergency work includes clearing and removing debris and wreckage and the temporary

restoration of essential public facilities and services.

2. Presidential declaration of a major disaster. 42 U.S.C. § 5170.

a. Must be at the request of the Governor, after an appropriate finding that the incident is of such severity

and magnitude that it is beyond the capabilities of the State, and that Federal assistance is required.

b. As a prerequisite, the Governor must

(1) Respond under State law (e.g., activate the State National Guard under Title 32).

(2) Execute the States emergency plan.

(3) Provide information (to FEMA) regarding the resources that have been committed.

(4) Certify that the State will comply with cost sharing provisions under the Act.

3. Presidential declaration of an emergency. 42 U.S.C. § 5191(a).

a. Must be at the request of the Governor, after an appropriate finding that the incident is of such severity

and magnitude that it is beyond the capabilities of the State, and that Federal assistance is required.

b. As a prerequisite, the Governor must

(1) Respond under State law (e.g., activate the State National Guard under Title 32).

(2) Execute the States emergency plan.

(3) Provide information (to FEMA) regarding the resources that have been committed.

(4) Define the type and amount of federal aid required. This is the primary difference between a major

disaster and an emergency. Congress created the emergency disaster category in 1974 in recognition that there are

less severe disasters that do not require the full complement of federal disaster aid (e.g., unemployment assistance, legal

services, etc.). Consequently, the Disaster Relief Act of 1974 established the new category to increase the flexibility of

the federal responses and to make it more practicable to provide aid to these lesser emergencies. Because these situations

contemplated less comprehensive assistance, the emergency provision included the requirement for the state to specify the

nature and amount of support needed.

4. Certain emergencies involving Federal primary responsibility. 42 U.S.C. § 5191(b).

Chapter 19

Domestic Operations

326
a. President may declare an emergency (not a major disaster) regarding a situation for which the primary

responsibility for response rests with the United States because the emergency involves a subject area which, under the

Constitution or laws of the United States, the United States exercises exclusive or preeminent responsibility and authority.

b. This authority was exercised for the first time following the bombing of the Murrah Federal Building in

Oklahoma City, OK, on April 19, 1995. One week later, the President declared a major disaster under the provisions of

42 U.S.C. § 5170.

5. Immediate Response Authority. DoD Directive 3025.1.

a. Note this is not authority provided in the Stafford Act.

b. Authorizes local military commanders to save lives, prevent human suffering, and mitigate great

property damage in imminently serious conditions when time does not permit approval from higher headquarters.

c. Contemporaneous notification to higher authority is required. In the Army, notification should be made

to the Director of Military Support (DOMS), located in the Pentagon (703-697-4331).

d. Authorizes following types of support: rescue, evacuation, and emergency treatment of casualties;

emergency restoration of power; debris removal and EOD; and food distribution.

e. This is limited authority. According to DoD 3025.1-M, Immediate Response Authority is time

sensitive. Requests for assistance should come within 24 hours of a damage assessment.

f. Regarding reimbursement, the DoD Directive states that, although this assistance should be provided to

civil authorities on a cost-reimbursable basis, the assistance should not be delayed or denied because of the inability or

unwillingness of the requester to make a reimbursement commitment.

C. Types of support authorized under the Stafford Act.

1. Personnel, equipment, supplies, facilities, and managerial, technical, and advisory services in support of

relief authorized under the Act (42 U.S.C. § 5170a(1) and § 5192(a)).

2. Distribution of medicine, food, and other consumable supplies, and emergency assistance (42 U.S.C. §§

5170a(4) and 5192(a)(7)).

3. Utilizing, lending, or donating Federal equipment, supplies, facilities, personnel, and other resources to State

and local governments (42 U.S.C. §§ 5170b(a)(1) and 5192(b)).

4. Performing on public or private lands or waters any work or services essential to saving lives and protecting

and preserving property, public health, and safety, including

a. Debris removal.

b. Search and rescue, emergency medical care, emergency mass care, emergency shelter, and provision of

food, water, medicine, and other essential needs, including movement of supplies or persons.

c. Clearance of roads and construction of temporary bridges necessary to the performance of emergency

tasks and essential community services.

d. Provision of temporary facilities for schools and other essential community services.

e. Demolition of unsafe structures which endanger the public.

f. Warning of further risks and hazards.

Chapter 19

Domestic Operations

327
g. Dissemination of public information and assistance regarding health and safety measures.

h. Provision of technical advice to State and local governments on disaster management and control.

i. Reduction of immediate threats to life, property, and public health and safety. (42 U.S.C. §

5170b(a)(3)).

D. The Federal Response.

1. Executive Order 12656 designates the Federal Emergency Management Agency (FEMA) as the lead Federal

agency for all domestic disaster relief. FEMA directs and coordinates the federal response on behalf of the President.

2. FEMA has prepared the Federal Response Plan, which defines 12 Emergency Support Functions (ESFs) for

which certain federal agencies have either a primary or supporting role.

ESF 1 - Transportation. (Department of Transportation)

ESF 2 - Communications. (Office of Science and Technology Policy)

ESF 3 - Public Works and Engineering. (DoD/Army Corps of Engineers)

ESF 4 - Firefighting. (Department of Agriculture/Forest Service)

ESF 5 - Information and Planning. (FEMA)

ESF 6 - Mass Care. (American Red Cross)

ESF 7 - Resource Support. (General Services Administration)

ESF 8 - Health and Medical Services. (U.S. Public Health Service)

ESF 9 - Urban Search and Rescue ( FEMA)

ESF 10 - Hazardous Materials. (Environmental Protection Agency)

ESF 11 - Food. (Department of Agriculture)

ESF 12 - Energy. (Department of Energy)

NOTE: a supporting agency can be, and DoD often is, tasked with primary responsibility for a particular

mission (or for the entire ESF) outside its primary agency responsibility. DoD has supporting agency responsibilities for

all ESFs.

Most States have an additional 3 (for a total of 15) ESPs.

ESF 13 - Law Enforcement

ESF 14 - Donations/Volunteers

ESF 15 - Recovery

3. FEMA appoints a Federal Coordinating Officer (FCO), typically the senior FEMA official on-scene, to

manage the federal effort. Because of the likelihood of DoD involvement, a Defense Coordinating Officer (DCO) is

assigned to the FCO. The DCO, an O-6 or above, is generally the Training Support Brigade Commander for that FEMA

region. The DCO will be the CFOs single point of contact for DoD support.

Chapter 19

Domestic Operations

328
4. After an assessment of the situation, the FCO issues Mission Assignments to participating federal agencies,

defining the task and maximum reimbursement amount. FEMA reimburses those agencies from moneys either set aside

or specially appropriated for a particular disaster (42 U.S.C. § 5147). Federal agencies which exceed the reimbursement

amount or execute tasks not within the Mission Assignment may not be reimbursed. FEMA, under its implementing

regulations (44 CFR Part 206), is the sole authority that decides whether or not reimbursement is forthcoming. All

requests for assistance should be routed through FEMA, with a view toward the issuance of a FEMA Mission

Assignment. All mission tasking must either originate from FEMA, or be routed through FEMA for approval prior to

execution. Other than under the emergency 10-day provision (42 U.S.C. § 5170b(c)), the federal property emergency

provision (42 U.S.C. § 5191(b)), and the DoDD 3025.1 immediate response authority, DoD has no authority to provide

disaster relief independent from FEMA. All requests for DoD assistance should be routed in either one of two manners

a. From the State or local agency to FEMA. FEMA, through the FCO, will evaluate the request and

approve, disapprove, or partially approve the request. Approved requests are tasked by the FCO to the DCO, who in turn

disseminates the task down to the unit(s) providing the support.

b. From the State or local agency to a DoD unit. This request should be forwarded to the DCO, who will

coordinate with the FCO to determine if it will be approved, disapproved, or partially approved. Approved requests are

tasked by the FCO to the DCO, who in turn disseminates the task down to the unit(s) providing the support.

E. The DoD Response.

1. In DoDD 3025.1, SECDEF appointed the Secretary of the Army as the DoD Executive Agent for disaster

relief operations. As such, he is the approval authority for all such support, unless it involves CINC-assigned forces (see

the discussion of DoDD 3025.15, above).

2. The Director of Military Support (DOMS) is the Secretary of the Armys action agent. DOMS coordinates

and monitors the DoD effort through the DCO.

3. USACOM (CONUS, Puerto Rico, and the Virgin Islands) and USPACOM (Alaska, Hawaii, and Pacific

possessions and territories) are responsible for developing disaster response plans and for the execution of those plans.

They may form a Joint Task Force for this purpose.

F. Operational Issues.

1. The Stafford Act is not a statutory exception to the Posse Comitatus Act (PCA, discussed below). Thus,

military personnel deployed on a disaster relief mission do not have a law enforcement function. Some of the following

PCA problems are often encountered:

a. Traffic Control Points. Often local officials will seek military assistance in operating traffic control

points to replace non-operational traffic lights. The PCA prohibits Federal troops from manning traffic control points

unless there is a military purpose in doing so, e.g., opening the way for a convoy or keeping a military supply route open.

If there is no military purpose involved, traffic control in the civilian community is a civilian law enforcement function.

National Guard troops in Title 32 status may be used to perform this function.

b. Patrolling. Whenever a military commander is assigned an area of responsibility, one of the first

priorities of work will be to ensure that the area is secure. Looting and other illegal activities may be occurring within a

commanders sector. Patrolling in civilian neighborhoods for the purpose of providing security, whether on foot or in

military vehicles, violates the PCA. It is important to distinguish patrols designed to execute a humanitarian relief

mission (e.g., delivering MREs, medical assistance, and other essentials) from patrols designed to ensure security of the

sector. The former are proper, the latter violate the PCA. Even though the mere presence of a humanitarian relief patrol

may deter potential lawbreakers, there is no violation of the PCA so long as troops do not become involved in a law

enforcement function.

c. Security at Supply Depots. Using Federal troops to guard any military facility, to include a supply

depot under the control of the military, does not violate the PCA. As long as the facility is operated by the military, the

Chapter 19

Domestic Operations

329
fact that some or all of the materials and supplies stored there are State and local property (by virtue of their donation

from other agencies) is irrelevant.

d. Security at Life Support Centers (LSCs). Although the American Red Cross has responsibility under

ESF 6 for providing temporary shelter, often the military is called upon to provide tentage and personnel support for these

LSCs. LSCs are under the control of, and operated by, State and local governments and not by the military, irrespective

of the degree of military material and personnel on site. As such, the security of LSCs is exclusively a local law

enforcement function. This function should be performed by local law enforcement officials, locally deputized Federal

Marshals, or National Guardsmen in Title 32 status.

2. Rules for the Use of Force.

a. Unlike the GARDEN PLOT Rules of Engagement, there are no preexisting stand-alone ROE/Rules for

the Use of Force for domestic disaster relief operations. The CJCS Standing Rules of Engagement (SROE) do not apply

to disaster relief operations; rather, U.S. forces will follow the use-of-force guidelines issued in the disaster relief

missions execute order and subsequent orders. As a baseline, however, the soldiers inherent right of self-defense, as

stated in the SROE, would apply.

b. It should be noted that, given the nature of the operation, no additional ROE/Rules for the Use of Force

are generally necessary. Indeed, in most instances troops are entering a non-hostile environment and are welcomed by the

local populace with open arms.

c. In the absence of any mission specific rules for the use of force, security and guard force personnel will

operate under their normal rules for the use of force as stated in DoD Directive 5210.56 and their Service regulations.

3. Force Protection.

a. During disaster relief operations in metropolitan areas, the force may be subjected to the threat of

violence by local street gangs and other criminal elements. In these instances, commanders will wish to effect liaison

with local law enforcement agencies (LEA) in order to properly assess the threat to the force.

b. Although liaison with LEA is often necessary, great care should be taken when that liaison results in the

collection, retention, or dissemination of information on U.S. persons. See the chapter on Intelligence Law, this

Handbook, for additional information.

4. Election Support.

a. Federal law (18 U.S.C. § 592) prohibits the positioning of troops at any place where a general or

special election is held. Disaster relief operations may be ongoing during the time of a scheduled election. Elections are

considered essential community services under the Stafford Act, and are eligible for Federal support, subject to the

restrictions of 18 U.S.C. § 592.

b. The Department of Justice has opined that, where State and local officials set up polling sites in the

immediate proximity of troop concentrations (e.g., billeting areas, food distribution centers, and life support centers),

there is no violation of Federal law so long as, to the maximum extent practicable, troops avoid any demonstration of

Federal military authority at or near the polling site. Furthermore, DoJ has opined that troops can erect tents with light

sets and provide generator maintenance for these sites without violating Federal law.

5. Chaplain Activities. Chaplains routinely deploy with their units (usually at the battalion-level or larger).

Their role in disaster relief operations is not expanded by the Stafford Act. Chaplains must refrain from ministering to

civilian disaster victims, which violates the Establishment Clauses prohibition on government sponsorship of religion.

Many chaplains also have secular counseling expertise which they may want to put to use. While this practice would not

violate the Establishment Clause, it may not be prudent because it creates the appearance of a violation as well as placing

chaplains in the untenable position of having to bifurcate their secular and religious functions.

Chapter 19

Domestic Operations

330
6. Claims.

a. The Stafford Act (42 U.S.C. § 5148) states that the Federal Government shall not be liable for any

claim based upon the exercise of or failure to exercise or perform a discretionary function or duty on the part of a Federal

agency or an employee of the Federal Government in carrying out the provisions of this chapter. US Army Claims

Service has interpreted this language as having no impact on how claims and potential claims are processed.

b. The Stafford Act (42 U.S.C. § 5173) conditions Federal debris removal assistance on the affected State

and local governments agreeing to indemnify the Federal Government against any claim arising from such removal.

USARCS and FEMA share the opinion that it is FEMA, rather than the Army, that will seek indemnification from a State

or local government. Accordingly, from investigation through adjudication, the normal Army claims procedures are

followed. After adjudication, however, claims resulting from debris removal by Army units should be forwarded to

USARCS, who will turn them over to FEMA.

7. Debris Removal.

a. Federal agencies are authorized to remove debris from both public and private lands (42 U.S.C. §

5173). Such assistance is conditioned on the affected State or local government obtaining unconditional authorization for

the debris removal, and, in the case of private lands, the Federal Government must also be indemnified against any claim

arising from such removal.

b. As a policy matter, commanders may wish to restrict troops from removing debris from private property

in the absence of the property owners request and presence. This will avoid adverse publicity which can arise from

angry property owners whose lots were cleared against their will. As an alternative, property owners can be instructed to

remove debris to the public right of way for removal, and troops can assist property owners who are present and request

assistance in hauling debris to the right of way.

8. Donated Property.

a. It is very common for military units (predominantly Army Materiel Command) to be tasked to establish

depots to warehouse and distribute construction materials, clothing, furniture, and other property that has been donated for

distribution to disaster victims. All donated property is considered to be donated to the State, and distribution of property

is done at the direction of the State agency designated as the coordinating agent for this purpose (usually the State chapter

of the American Red Cross).

b. At the close of operations, when military units are returning to home station, FEMA must be contacted

to coordinate a transition plan with the State. Often, private relief organizations will appear at depots requesting transfer

to them of property contained within the depot. Donated property in military custody that has not been distributed to

disaster victims or other relief agencies must be disposed of according to the instructions of the State entity having

dominion over it.

9. Environmental Compliance. The Stafford Act (42 U.S.C. § 5159) exempts actions taken by Federal

agencies while providing disaster relief from being considered a major Federal action significantly affecting the quality

of the human environment within the meaning of the National Environmental Policy Act of 1969. While Environmental

Impact Statements are specifically waived, however, due consideration must be given to the effects of disaster relief

operations and compliance with other federal environmental laws (such as the Clean Air Act and Clean Water Act), which

are not waived. This is especially important in the area of debris removal. Often debris is removed to open burn sites,

which requires a State waiver under the Clean Air Act.

10. Medical Support to Relief Workers.

a. The Stafford Act (42 U.S.C. § 5170b(a)(3)(B)) clearly envisions the provision of medical care to

disaster victims. On its face, the statute appears to apply only to disaster victims, and not to the numerous relief workers

in the area who may also require medical treatment. Army Regulations (AR 40-3, Medical Services) do not provide an

independent source of authority.

Chapter 19

Domestic Operations

331
b. The Office of the General Counsel, FEMA, has opined that the Stafford Act does authorize the

provision of medical care to all persons within the disaster area, to include relief workers. Under this authority, the Public

Health Service, which has primary responsibility for relief worker health under the Federal Response Plan, may request

that FEMA task DoD to provide these medical services.

11. Operating a Disaster Relief Radio Station. There is no authority under the Stafford Act to operate a radio

station to broadcast public service messages related to DoD disaster relief efforts. However, the Federal Communications

System has, in the past, granted a limited license to operate a radio station for these purposes. The FCC should be

contacted through FEMA and the National Communications System (responsible for ESF 2). The radio station can be

operated by PSYOP personnel, with the caveat that it broadcast only public service messages (no music or commercial

programming) and cease operation with the termination of DoD relief efforts.

12. Volunteers.

a. There are statutory exceptions to the general prohibition against accepting voluntary services under 31

U.S.C. § 1342 that can be used to accept the assistance of volunteer workers. The statute itself authorizes the acceptance

of voluntary services in emergencies involving the safety of human life or the protection of property. The Stafford Act

(42 U.S.C. §§ 5152(a), 5170(a)(2)) authorizes the President to use the personnel of private disaster relief organizations

and to coordinate their activities.

b. Despite these exceptions, military units should not attempt to organize or supervise volunteer workers.

Considerations of liability and control dictate that all volunteers be channeled through private relief organizations.

SUPPORT TO LAW ENFORCEMENT

A. The Posse Comitatus Act (18 U.S.C. § 1385) (PCA) prohibits use of Army and Air Force personnel to execute

the civil laws of the U.S., except in cases and under circumstances expressly authorized by the Constitution or Act of

Congress. Violation of the Act carries with it criminal liability (felony) and the possibility of a fine and imprisonment.

This prohibition is applicable to Navy and Marine Corps personnel as a matter of DoD policy [see DoD Directive

5525.5]. The primary prohibition of the PCA is against direct military involvement in law enforcement activities.

Generally, court interpretations have held that military support short of actual search, seizure, arrest, or similar

confrontation with civilians, (i.e., traditional law enforcement functions) is not a violation of the act. Examples of

permitted support include the provision of information, equipment, and facilities.

1. To Whom the PCA Applies.

a. Active duty personnel in the Army and Air Force.

(1) Most courts interpreting the Posse Comitatus Act have refused to extend its terms to the Navy and

Marine Corps. (United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991); United States v. Roberts, 779 F.2d 565 (9th Cir.

1986), cert. denied, 479 U.S. 839 (1986); United States v. Mendoza-Cecelia, 736 F.2d. 1467 (11

th Cir. 1992)).

(2) 10 U.S.C. § 375 directed SECDEF to promulgate regulations forbidding direct participation by a

member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity. SECDEF

has done so in DoDD 5525.5. Therefore, the proscription has been extended by regulation to the Navy and Marine Corps.

(See DoDD 5525.5, para. B(1), and enclosure 4, para C.). SECDEF and SECNAV may grant exceptions on a case by

case basis. DoDD 5525.5, Encl. 4, para. C., SECNAVINST 5820.7b, para. 9c.

b. Reservists on active duty, active duty for training, or inactive duty for training.

c. National Guard personnel in Federal service (Title 10 status).

d. Civilian employees of DoD when under the direct command and control of a military officer. (DoDD

5525.5, encl. 4; AR 500-51, para. 3-2; SECNAVINST 5820.7B, para. 9b(3)).

Chapter 19

Domestic Operations

332
e. The PCA does NOT cover:

(1) A member of a military service when off duty and acting in a private capacity. [A member is not

acting in a private capacity when assistance to law enforcement officials is rendered under the direction or control of DoD

authorities]. (DoDD 5525.5, Encl. 4; AR 500-51 para. 3.2; SECNAVINST 5820.7B, para. 9b(4)); AFI 10-801.

(2) A member of the National Guard when not in Federal Service.

(3) A member of a Reserve Component when not on active duty, active duty for training, or inactive

duty for training.

(4) Members of the Coast Guard (14 U.S.C. § 2). Jackson v. Alaska, 572 P.2d 87 (Alaska 1977).

2. To What the PCA Applies.

a. Prohibits Direct Assistance, including:

(1) Interdiction of a vehicle, vessel, aircraft, or other similar activity;

(2) A search or seizure;

(3) An arrest, apprehension, stop and frisk, or similar activity; and

(4) Use of military personnel for surveillance or pursuit of individuals, or as undercover agents,

informants, investigators, or interrogators. DoDD 5525.5, Encl. 4, para. A.3.

b. Analytical framework. There are three separate tests which courts apply to determine whether the use

of military personnel has violated the PCA.

(1) FIRST TEST: whether the action of the military personnel was active or passive. United

States v. Red Feather, 392 F. Supp. 916, at 921 (W.D.S.D 1975); United States v. Yunis, 681 F. Supp. 891, at 892

(D.D.C. 1988); United States v. Rasheed, 802 F.Supp. 312 (D. Hawaii 1992).

(2) SECOND TEST: whether use of the armed forces pervaded the activities of civilian law

enforcement officials. United States v. Hartley, 678 F.2d 961, 978 (11

th Cir. 1982) cert. den. 459 U.S. 1170 (1983);

United States v. Hartley, 796 F.2d 112 (5th Cir. 1986); United States v. Bacon, 851 F.2d 1312 (11

th Cir. 1988); Hayes v.

Hawes, 921 F.2d 100 (7

th Cir. 1990);.

(3) THIRD TEST: whether the military personnel subjected citizens to the exercise of military power

which was:

(a) Regulatory (a power regulatory in nature is one which controls or directs);

(b) Proscriptive (a power proscriptive in nature is one that prohibits or condemns); or

(c) Compulsory (a power compulsory in nature is one that exerts some coercive force). United

States v. McArthur, 419 F. Supp. 186 (D.N.D. 1975); United States v. Casper, 541 F.2d 1274 (8th Cir. 1976), cert.

denied, 30 U.S. 970 (1977). United States v. Yunis, 681 F. Supp. 891, at 895-6 (D.D.C. 1988); United States v. Kahn, 35

F.3d 426 (9th Cir. 1994).

c. The PCA does NOT apply to actions furthering a military or foreign affairs function of the United

States. This is sometimes known as the Military Purpose Doctrine. The primary purpose of the action must be to

further a military interest. Civilians may receive an incidental benefit. DoDD 5525.5, Encl. 4, para. A.2.a. Such military

purposes include:

Chapter 19

Domestic Operations

333
(1) Investigations and other actions related to enforcement of the UCMJ. United States v. Thompson,

33 M.J. 218 (CMA 1991), cert. denied. 502 U.S. 1074 (1992).

(2) Investigations and other actions that are likely to result in administrative proceedings by DoD,

regardless of whether there is a related civil or criminal proceeding.

(3) Investigations and other actions related to the commanders inherent authority to maintain law and

order on a military installation or facility. Harker v. State, 663 P.2d 932 (Alaska 1983); Anchorage v. King, 754 P.2d 283

(Alaska Ct. App. 1988); Eggleston v. Department of Revenue, 895 P.2d 1169 (Colo. App 1995). Civilians may be

detained for an on-base violation long enough to determine whether the civilian authorities are interested in assuming the

prosecution. Applewhite v. United States, 995 F.2d 997 (10th Cir. 1993), cert. denied, 510 U.S. 1190 (1994).

(4) Protection of classified military information or equipment.

(5) Protection of DoD personnel, DoD equipment, and official guests of the DoD.

(6) Such other that are undertaken primarily for a military or foreign affairs purpose.

3. Where the PCA Applies. Extraterritorial Effect of the PCA

a. A 1989 DoJ Office of Legal Counsel opinion concluded that the Posse Comitatus Act does not have

extraterritorial application. Memorandum, Off. Legal Counsel for General Brent Scowcroft, 3 Nov. 1989. This opinion

also states the restrictions of 10 U.S.C. §§ 371 - 381, specifically 10 U.S.C. § 375, were also not intended to have

extraterritorial effect

b. Some courts have also adopted the view that the Posse Comitatus Act imposes no restriction on use of

U.S. armed forces abroad, noting that Congress intended to preclude military intervention in domestic affairs. United

States v. Cotton, 471 F.2d 744 (9

th Cir. 1973); Chandler v. United States, 171 F.2d 921 (1st Cir. 1948), cert. denied, 336

U.S. 918 (1949); DAquino v. United States, 192 F.2d 338 (9th Cir. 1951), cert. denied, 343 U.S. 935 (1952). (Note: both

Chandler and DAquino involved law enforcement in an area of military occupation.) But see, United States v. Kahn, 35

F.3d 426, 431 n. 6 (9

th Cir. 1994) (In a case involving the applicability of the PCA to Navy activities in support of

maritime interdiction of a drug-smuggling ship, the government maintained the PCA had no extraterritorial effect. While

the court stated that issue had not been definitively resolved, it did state that 10 U.S.C. §§ 371-381 did impose limits on

the use of American armed forces abroad.)

c. Note, however, that DoD policy, as contained in DoDD 5525.5, which incorporates the restrictions of

10 U.S.C. § 375, applies to all U.S. forces wherever they may be. Two weeks after the promulgation of the DoJ memo,

Secretary Cheney amended the Directive to read that, in the case of compelling and extraordinary circumstances,

SECDEF may consider exceptions to the prohibition against direct military assistance with regard to military actions

outside the territorial jurisdiction of the United States.

4. What is the effect of violating the PCA? Criminal Sanctions. 2 years imprisonment, fine, or both.

B. Express Exceptions to the PCA.

1. Civil Disturbances.

a. Policy. Although the President has Constitutional (Art. IV, § 4) and statutory authority (10 U.S.C. §§

331-334) to use the armed forces to suppress insurrections and domestic violence, the primary responsibility for

protecting life and property and maintaining law and order in the civilian community is vested in the State and local

governments. Military resources may be employed in support of civilian law enforcement operations in the 50 States,

the District of Columbia, the Commonwealth of Puerto Rico, and the U.S. territories and possessions. Any employment

of military forces in support of law enforcement operations shall maintain the primacy of civilian authority (DoD

Directive 3025.12).

Chapter 19

Domestic Operations

334
b. The insurrection statutes permit the President to use the armed forces to enforce the law in the following

circumstances:

(1) An insurrection within a State. The legislature or governor must request assistance from the

President. § 331.

(2) A rebellion making it impracticable to enforce the laws of the United States (i.e., federal law) by

the ordinary course of judicial proceedings. § 332.

(3) Any insurrection or domestic violence which:

(a) opposes or obstructs federal law; or

(b) hinders the execution of State law so that the people are deprived of their Constitutional rights,

and the State is unable or unwilling to protect those rights. § 333.

c. The Federal response.

(1) The Attorney General coordinates all federal government activities relating to civil disturbances.

(2) If the President decides to respond to the situation, he must first issue a proclamation, prepared by

the Attorney General, to the insurgents directing them to disperse within a limited time. See Proclamation 6427 (1 May

1992) for the proclamation issued in connection with the Los Angeles riots. At the end of that time period, the President

may issue an execute order directing the use of armed forces. See Executive Order 12804 (1 May 1992) for the execute

order issued in connection with the Los Angeles riots.

(3) The Attorney General appoints a Senior Civilian Representative of the Attorney General (SCRAG)

as his on-scene action agent.

d. The DoD Response.

(1) SECDEF has reserved to himself the authority to approve support in response to civil disturbances

(DoDD 3025.15). The Secretary of the Army is still listed as the approval authority in DoDD 3025.12.

(2) Although the civilian authorities have the primary responsibility for response to civil disturbances,

military forces shall remain under military command and control at all times.

(3) The Secretary of the Army, along with DOMS, in coordination with CJCS, direct the required DoD

assistance, normally by designating supported and supporting CINCs. The DoD Civil Disturbance Plan GARDEN PLOT

will be implemented, with modifications as necessary.

e. Emergency Employment of Military Forces.

(1) Military forces shall not be used for civil disturbances unless specifically directed by the President

(pursuant to 10 U.S.C. §§ 331-334), except in the following circumstances:

(a) To prevent the loss of life or wanton destruction of property or to restore governmental

functioning, in cases of civil disturbances, if the duly constituted authority local authorities are unable to control the

situation and circumstances preclude obtaining prior Presidential authorization.

(b) When duly constituted state or local authorities are unable or decline to provide adequate

protection for Federal property or functions.

(2) Note that this is limited authority. Commanders should use all available means to seek Presidential

authorizations through the chain of command while applying their emergency authority under the directive (DoD

Chapter 19

Domestic Operations

335
Directive 3025.12). See also AR 500-50, par. 2-4, which highlights the fact that, given ready access to rapid

communications, it is unlikely that such action would be justified without prior approval.

f. Operational Issues.

(1) Use of Force. JTF Los Angeles highlighted the need to have military forces employ a unified and

consistent set of ROE. GARDEN PLOT ROE, subject to CJCS/CINC modification, provide such consistency. Some of

the fundamental concepts in those ROE follow:

(a) Minimum force must be used at all times when responding to civil disturbances.

(b) Warning shots are not permitted because of the danger to innocent persons and the potential to

create the impression on the part of citizens or fellow law enforcement personnel that sniping is widespread.

(c) Deadly force may be used only if:

1. Lesser means have been exhausted or are unavailable; and

2. Risk of harm to innocent persons is not significantly increased; and

3. Purpose of use is one of the following:

A. In self-defense to avoid death or serious bodily harm.

B. To prevent crime involving serious risk of death or serious bodily harm.

C. To prevent destruction of vital public health/safety/property.

D. To prevent escape of person who is serious threat to person or property.

(d) ROE should also address arming orders. These are discussed in Annex C, appendix 8 of

GARDEN PLOT. It is important to ensure the consistent application of these orders by all troops in the JTF, both

National Guard and active duty forces. See JTF LA ROE below for an example of arming orders.

(e) Judge advocates deployed to JTF Los Angeles stressed the need to disseminate ROE early

(although this may be difficult given the time constraints) and to provide realistic training to soldiers, e.g. using vignettes

to illustrate GARDEN PLOT guidance.

(2) Restrictions on Activities. Recognize that the Insurrection Act (10 U.S.C. §§ 331-334) is an

exception to the normal restrictions of the Posse Comitatus Act. Consequently, during civil disturbance operations, forces

may directly enforce the law. However, the overarching policy of providing support to civilian officials should always

be kept in mind. Active duty military personnel (other than Military Police or similar personnel) are not trained in law

enforcement. National Guard personnel may receive some law enforcement training. When possible, law enforcement

duties should be left to State and local law enforcement authorities, and military forces reserved for tasks suitable to their

training.

(3) Loan/Lease of Military Equipment to Civilian Law Enforcement. Civilian law enforcement

officials often request the loan of military equipment during civil disturbance operations. In light of the DoD goal to

minimize the military presence in such operations, this practice is viewed as an effective means of accomplishing that

goal. The details of providing this support to civilian authorities is discussed below in Loans of Equipment and Facilities.

(4) Exercise of Authority over Civilians.

(a) Custody and Detention: Annex C, appendices 1 and 8 of GARDEN PLOT, state the general

policy that civilian authorities should take civilians into custody. However, military personnel do have the authority to

Chapter 19

Domestic Operations

336
detain or take into custody rioters, looters, or others committing offenses, when necessary or in the absence of civilian

police.

(b) Searches: Annex C, appendices 1 and 8 of GARDEN PLOT, permit searches of individuals

and private property, without a warrant, in limited circumstances, e.g. a reasonable belief that an individual is armed or

presents an immediate risk of harm to JTF personnel or others. Generally, however, searches should be conducted by

civilian law enforcement because of their greater familiarity with search and warrant procedures.

LOS ANGELES CIVIL DISTURBANCE ROE (1992)

JOINT TASK FORCE, L.A.

(AS OF 020100 MAY 1992)

A. EVERY SERVICEMAN HAS THE RIGHT UNDER LAW TO USE REASONABLE AND NECESSARY FORCE

TO DEFEND HIMSELF AGAINST VIOLENT AND DANGEROUS PERSONAL ATTACK. THE LIMITATIONS

DESCRIBED BELOW ARE NOT INTENDED TO INFRINGE THIS RIGHT, BUT TO PREVENT THE

INDISCRIMINATE USE OF FORCE.

B. FORCE WILL NEVER BE USED UNLESS NECESSARY, AND THEN ONLY THE MINIMUM FORCE

NECESSARY WILL BE USED.

1. USE NON-DEADLY FORCE TO:

a. CONTROL THE DISTURBANCE.

b. PREVENT CRIMES.

c. APPREHEND OR DETAIN PERSONS WHO HAVE COMMITTED CRIMES.

2. USE DEADLY FORCE ONLY WHEN:

a. LESSER MEANS OF FORCE EXHAUSTED OR UNAVAILABLE; AND

b. RISK OF DEATH OR SERIOUS BODILY HARM TO INNOCENT PERSONS IS NOT

SIGNIFICANTLY INCREASED BY THE USE; AND

c. PURPOSE OF USE

(1) SELF-DEFENSE TO AVOID DEATH OR SERIOUS BODILY HARM;

(2) PREVENTION OF CRIME INVOLVING DEATH OR SERIOUS BODILY HARM;

(3) PREVENTION OF DESTRUCTION OF PUBLIC UTILITIES WHICH HAVE BEEN DETERMINED

VITAL BY THE JTF COMMANDER.

(4) DETENTION OR PREVENTION OF ESCAPE OF PERSONS WHO PRESENT A CLEAR THREAT

OF LOSS OF LIFE.

3. WHEN POSSIBLE, THE USE OF DEADLY FORCE SHOULD BE PRECEDED BY A CLEAR WARNING

THAT SUCH FORCE IS CONTEMPLATED OR IMMINENT.

4. WARNING SHOTS WILL NOT BE USED.

5. WHEN FIRING, SHOTS WILL BE AIMED TO WOUND, IF POSSIBLE, RATHER THAN KILL.

Chapter 19

Domestic Operations

337
6. WEAPONS WILL NOT BE FIRED ON AUTOMATIC.

7. WHEN POSSIBLE, LET CIVILIAN POLICE ARREST LAWBREAKERS.

8. ALLOW PROPERLY IDENTIFIED NEWS REPORTERS FREEDOM OF MOVEMENT, SO LONG AS

THEY DO NOT INTERFERE WITH YOUR MISSION.

9. DO NOT TALK ABOUT THIS OPERATION OR PASS ON INFORMATION OR RUMORS ABOUT IT TO

UNAUTHORIZED PERSONS; REFER THEM TO YOUR COMMANDER.

10. JTF COMMANDER WITHHOLDS AUTHORITY FOR USE OF RIOT CONTROL AGENTS AND SNIPER

TEAMS.

C. ARMING ORDERS

Bayonet Magazine/

Scabbard

Arming

Order Rifle Bayonet Pistol Baton ControlChamber

In Pouch /

Empty AO-1 Sling On Belt Scabbard Holster Belt OIC/NCOIC

In Pouch /

Empty AO-2 Port On Belt Scabbard Holster Belt OIC/NCOIC

In Pouch /

Empty AO-3 Sling On Belt Fixed Holster Hand OIC/NCOIC

In Pouch /

Empty AO-4 Port On Belt Fixed Holster Hand OIC/NCOIC

In Weapon

/Empty AO-5 Port On Belt Fixed Holster Hand OIC/NCOIC

In Weapon

/Locked &

Loaded

AO-6 Port On Belt Fixed In Hand Belt OIC

[NOTE: the above ROE utilized by JTF LA were adapted from the generic ROE contained in DoDs GARDEN PLOT

CIVIL DISTURBANCE PLAN, and modified slightly based upon input from Dept of the Army (7th ID), FORSCOM,

and the Joint Staff. See pg. 30, September 1992, The Army Lawyer.]

2. Sharing Information. DoD may provide information to LEAs gained during normal military training or

operations, and shall to the maximum extent practicable consider the information needs of LEAs when planning normal

training or military operations; and shall, to the extent consistent with national security, share intelligence with LEAs

(10 U.S.C. §371, DoDD 5525.5). [NOTE: During an otherwise valid training mission or exercise, information gathered

may be passed to other agencies. Moreover, 10 U.S.C. § 371 requires DoD to take LEA needs into account when

planning/executing operations. Examples cited in legislative history include scheduling training exercises using night

vision devices in border areas, conducting photo-reconnaissance training missions in a manner that serves the need of a

LEA for aerial surveillance of potential marijuana fields, and similar activities. House Conference Report No. 100-989,

Natl Def. Auth. Act FY 89, p. 2529, U.S. Cong. and Admin. News.]

a. Care must be taken to ensure that information/intelligence shared with LEAs about U.S. persons

complies with intelligence law restrictions. See Chapter 15, Intelligence Law, of this handbook for further information on

this subject.

b. Approval Authority. DoDD 5525.5 does not specifically mention the approval authority for sharing

information. Although 10 U.S.C. § 374 says The Secretary of Defense may, and there has been no delegation in DoDD

5525.5, it is reasonable to conclude that any commander may share information on his own authority, given the highly

Chapter 19

Domestic Operations

338
perishable nature of much of the information and that such sharing does not, independent of § 374 authority, violate the

PCA.

3. Loan of Equipment and Facilities.

a. With proper approval, DoD activities may make equipment (including associated supplies and spare

parts), base facilities, or research facilities available to Federal, State, or local law enforcement officials for law

enforcement purposes. (10 U.S.C. § 372, DoDD 5525.5) There must be no adverse impact on national security or

military preparedness. Loans (which may be made only to Federal agencies) and leases (which may be made to State and

local agencies) must comply with relevant statutes, e.g., the Economy Act (31 U.S.C. § 1535) and the Leasing Statute (10

U.S.C. § 2667), and service regulations, e.g., AR 500-51, AR 700-131, and AFI 10-801, Attachment 1, Section C.

b. Approval authority.

(1) SECDEF. Any requests for potentially lethal support, including loans of arms, combat and tactical

vehicles, vessels, or aircraft, and ammunition. DoDD 3025.15, DoDD 5525.5.

(2) Army:

(a) HQDA (DALO-SMS). Non-lethal equipment in excess of 60 days. Installation Commander

can approve all other equipment requests if loan/lease is for 60 days or less.

(b) HQDA (DAMO-ODS). Requests for use of installation or research facilities. AR 500-51,

para. 2-5.

(3) Navy & Marines: Assistant SECNAV (Manpower and Reserve Affairs) for non-lethal equipment

for more than 60 days. All other requests may be approved as specified in SECNAVINST 5820.7B, para. 9e(3).

(4) Air Force: Asst SECAF for Manpower, Reserve Affairs, Installations, and Environment for all

non-drug related requests. AFI 10-801, Attachment 4.

(5) National Guard: Loan of weapons, combat/tactical vehicles, vessels and aircraft require approval

of the service secretary or their designee. Requests for loan/lease of NG equipment which require HQDA or HQAF

approval will be reviewed by NGB. NGB 500-1/ANGI 10-8101, para. 3-1.

c. In addition to loan/lease authority, 10 U.S.C. § 2576a, Excess Personal Property; Sale or Donation for

Law Enforcement Activities, permits DoD to provide excess personal property suitable for use in counter-drug and

counter-terrorism activities to federal and state agencies. This includes authority to furnish small arms and ammunition.

The Defense Logistic Agency manages this program. Memorandum of the Secretary of Defense for the Under Secretary

of Defense for Acquisition and Technology, 26 June 1995. The four Regional Logistics Support Offices (Buffalo, Miami,

El Paso, Los Angeles) actually provide this excess property.

4. Expert Advice and Training.

a. Military personnel may be used to train civilian law enforcement personnel in the use of equipment,

including equipment loaned or leased as described above (10 U.S.C. § 373, DoDD 5525.5). Large scale or elaborate

training programs are prohibited, as is regular or direct involvement of military personnel in activities that are

fundamentally civilian law enforcement operations. Training should be limited to situations when the use of non-DoD

personnel would be unfeasible or impractical from a cost or time perspective and would not otherwise compromise

national security or military preparedness concerns. Such assistance may not involve DoD personnel in a direct role in a

law enforcement operation, except as otherwise authorized by law. Except as otherwise authorized by law, the

performance of such assistance by DoD personnel shall be at a location where there is not a reasonable likelihood of a law

enforcement confrontation.

Chapter 19

Domestic Operations

339
(1) Note that the Deputy Secretary of Defense has provided policy guidance in this area, which limits

the types of training U.S. forces may provide. (Deputy Secretary of Defense Memorandum of 29 June 1996, Subj: DoD

Training Support to U.S. Civilian Law Enforcement Agencies, reproduced as an appendix to this Chapter.) The policy is

based on prudential concerns that advanced training could be misapplied or misused by CLEAs, resulting in death or

injury to non-hostile persons. The memo permits basic military training such as basic marksmanship, patrolling,

medical/combat lifesaver, mission planning, and survival skills. It prohibits what it terms advance military training,

which is defined as high intensity training which focuses on the tactics, techniques, and procedures (TTPs) required to

apprehend, arrest, detain, search for, or seize a criminal suspect when the potential for a violent confrontation exists.

Examples of such training are sniper training, Military Operations in Urban Terrain (MOUT), Advanced MOUT, and

Close Quarter Battle/Close Quarter Combat (CQB/CQC) training.

(2) A single general exception exists to provide this advanced training at the U.S. Army Military

Police School. In addition, USCINCSOC may approve this training, on an exceptional basis, by special operations forces

personnel.

b. Military personnel may also be called upon to provide expert advice to civilian law enforcement

personnel. However, regular or direct involvement in activities that are fundamentally civilian law enforcement

operations is prohibited.

(1) MWDT. A specific example of this type of support is military working dog team support to

civilian law enforcement. The dogs have been analogized to equipment and its handler provides expert advice. See

DoDD 5525.10, Using Military Working Dog Teams to Support Law Enforcement Agencies in Counterdrug Missions, 17

Sept. 1990; Military Working Dog Program, AFI 31-202.

(2) Weapons of Mass Destruction. Congress has directed that DoD provide certain expert advice to

federal, state, and local agencies with regard to weapons of mass destruction (WMD). This training is non-reimbursable

because Congress has appropriated specific funds for these purposes.

(a) 50 U.S.C. § 2312: Training in emergency response to the use or threat of use of WMD.

(b) 50 U.S.C. § 2315: Program of testing and improving the response of civil agencies to

biological and chemical emergencies. (Department of Energy runs the program for responses to nuclear emergencies.)

c. Approval Authority.

(1) SECDEF.

(a) Training or expert advice to law enforcement in which there is a potential for confrontation

between the trained law enforcement and specifically identified civilian individuals or groups.

(b) Assignments of 50 or more DoD personnel or a period of assignment of more than 30 days.

The Assistance Secretary of Defense (Manpower, Reserve Affairs, and Logistics) is the approval authority for any other

assignment.

(2) Army. DOMS is the approval authority. AR 500-51, para. 3-1d.

(3) Navy & Marines. The Secretary of the Navy is the approval authority. SECNAVINST 5820.7B,

para. 9.e.

d. Funding. Support provided under these authorities is reimbursable (10 U.S.C. § 377), unless:

(1) The support is provided in the normal course of training or operations; or

(2) The support results in a substantially equivalent training value.

Chapter 19

Domestic Operations

340
5. Maintenance and Operation of Equipment. DoD may make personnel available to maintain and operate

equipment for LEAs (10 U.S.C. § 374, DoDD 5525.5). The statute sets out a non-exclusive list of purposes for which

DoD personnel may operate equipment, to include:

a. DoD may make personnel available to operate equipment for a federal LEA with responsibility for

controlled substances laws, including the Maritime Drug Law Enforcement Act (e.g., DEA and Coast Guard);

Immigration and Nationality Act enforcement (e.g., INS); and customs law enforcement (e.g., U.S. Customs Service).

The request for this support must come from the head of the federal agency.

b. DoD may make personnel available to operate equipment for a federal LEA with respect to assistance

that such agency is authorized to furnish to a state, local, or foreign government which is involved in the enforcement of .

. . laws similar to federal controlled substances laws (including the Maritime Drug Law Enforcement Act), immigration

and customs law enforcement. The request for this support must come from the head of the federal agency.

c. Detection, monitoring, and communication of the movement of air and sea traffic. [Note that for this

and subsequent items, the support applies to any civilian law enforcement agency, with no requirement that the request

for support come from the head of the agency.]

d. Detection, monitoring, and communication of the movement of surface traffic outside the geographic

boundary of the U.S. and within the U.S. not to exceed 25 miles if the initial detection occurred outside of the boundary.

e. Aerial reconnaissance.

f. Interception of vessels or aircraft detected outside the land area of the U.S. for purposes of

communicating with them and directing them to go to a location designated by appropriate civilian officials. DoD

personnel may continue to operate this equipment to pursue these vessels or aircraft into the land area of the U.S. in cases

where the detection began outside such land area. [Note: this hot pursuit provision is exceptional authority for DoD to

conduct operations within CONUS that would normally fall within the purview of LEAs]. This authority does not permit

physical force downs of aircraft.

g. Operation of equipment to facilitate communications for LEAs.

h. Subject to the joint approval of SECDEF and the Attorney General, transport federal LEA personnel

and operate a base of operations for them. In the case of law enforcement operations OCONUS, the conduct of these

operations also requires the approval of the Secretary of State.

i. Finally, the statue permits any other operation of equipment for civilian law enforcement agencies so

long as such support does not involve direct participation by DoD personnel in a civilian law enforcement operation

unless such direct participation is otherwise authorized by law.

6. Law Enforcement Detachments. U.S. Coast Guard personnel shall be assigned to naval vessels operating

in drug interdiction areas (10 U.S.C. § 379). Such personnel have law enforcement powers, and are known as Law

Enforcement Detachments (LEDETs). When approaching a contact of interest, tactical control (TACON) of the vessel

shifts to the Coast Guard. As a constructive Coast Guard vessel, the ship and its crew are permitted to participate in

direct law enforcement. However, to the maximum extent possible, the law enforcement duties should be left to the Coast

Guard personnel. Military members should offer necessary support.

7. Emergencies Involving Chemical or Biological Weapons. In response to an emergency involving

biological or chemical weapons of mass destruction which is beyond the capabilities of the civil authorities to handle, the

Attorney General may request DoD assistance directly (10 U.S.C. § 382). The assistance provided includes monitoring,

containing, disabling, and disposing of the weapon. Regulations, required by the statute, implementing the authority,

have not yet been promulgated.

8. Miscellaneous Exceptions. DoDD 5525.5, Encl. 4, para. A.2.e., contains a list of federal statutes which

contain express authorization for the use of military forces to enforce the civil law. Among them are protection of the

Chapter 19

Domestic Operations

341
President, Vice President, and other dignitaries, and assistance in the case of crimes against members of Congress, foreign

officials, or involving nuclear materials

C. Counterdrug Support.

1. General.

a. Counterdrug support operations have become an important activity within DoD. All DoD support is

coordinated through the Office of the Defense Coordinator for Drug Enforcement Policy and Support (DEP&S), which is

located within the Office of the Assistant Secretary of Defense for Special Operations and Low Intensity Conflict (ASD

(SO/LIC)).

b. What separates counterdrug support from most other areas of support is that it is non-reimbursable. For

FY00, Congress appropriated nearly $1 billion for DoD counterdrug support. DEP&S channels that

money to the providers of counterdrug support.

2. Use of Force: The use of force in counterdrug missions will be governed by the Standing Rules of

Engagement (CJCSI 3121.01A), Rules on the Use of Force by DoD Personnel during Military Operations Providing

Support to Law Enforcement Agencies Conducting Counterdrug Operations in the United States (CJCSI 3121.02), and

any mission specific limitations imposed by the commander. Much of the format and text of CJCSI 3121.02 is similar to

that of the SROE. The rules concerning self-defense and a commanders obligations to protect his unit from a hostile

threat are identical. Perhaps the key aspects of CJCSI 3121.02 concern the requirement to use non-deadly force if it can

be used without increasing the danger or threat of death or serious physical injury to DOD personnel.

3. Detection and Monitoring.

a. 10 U.S.C. § 124 made DoD the lead federal agency for detection and monitoring (D&M) of aerial and

maritime transit of illegal drugs into the United States. D&M is therefore a DoD mission.

(1) Although a mission, D&M is to be carried out in support of federal, state, and local law

enforcement authorities. Note that the statute does not extend to D&M missions covering land transit (i.e., the Mexican

border). Interception of vessels or aircraft is permissible outside the land area of the United States to identify and direct

the vessel or aircraft to a location designated by the supported civilian authorities. Vessels or aircraft detected outside of

the United States may be pursued over the United States.

b. D&M missions involve airborne (AWACs, aerostats), seaborne (primarily USN vessels), and landbased radar (to include Remote Other The Horizon Radar (ROTHR)) sites.

4. National Guard.

a. National Guard forces are a critical source of military support to CLEAs. Operating under state law and

National Guard regulations, these units conduct counterdrug operations in all 54 states and territories. National Guard

units provide 16 types of support, which are listed in NGR 500-2.

b. 32 U.S.C. § 112 provides federal funding for National Guard counterdrug activities. The statute

provides that SECDEF may provide funds for: (1) pay, allowances, clothing, subsistence, gratuities, travel, and related

expenses, as authorized by State law, of personnel of the National Guard of that State used, while not in Federal Service,

for the purpose of drug interdiction and counter-drug activities; (2) the operation and maintenance of the equipment and

facilities of the National Guard of that State used for the purpose of drug interdiction and counter-drug activities; and (3)

the procurement of services and leasing of equipment for the National Guard of that State used for the purpose of drug

interdiction and counter-drug activities.

c. The State must prepare a drug interdiction and counter-drug activities plan. DEP&S reviews each

States implementation plan and disburses funds.

Chapter 19

Domestic Operations

342
d. An important aspect of 32 U.S.C. § 112 is that, although the National Guard is performing counterdrug

support operations using federal funds and under federal guidance, it remains a state militia force and is not to be

considered a federal force for purposes of the Posse Comitatus Act or for any other purpose. (Legis. Hist., House Conf.

Report 100-989, Pub. L. 100-456, p. 2583, U.S. Cong. and Admin. News.). Also note that National Guard members are

covered by the Federal Tort Claims Act while engaged in counterdrug operations, although they remain in a non-federal

status. (see commentary, The Use of National Guard Personnel for Counterdrug Operations: Implications Under the

Federal Tort Claims Act, ARMY LAW., June 1991).

e. The National Guard, as a state militia, is not subject to the restrictions of the Posse Comitatus Act while

not in federal service. Thus, the Guard has more flexibility than federal forces in conducting counterdrug support

operations. However, the National Guard Bureau (NGB) has imposed a number of policy restrictions on counterdrug

operations (see NGR 500-2, National Guard Counterdrug Support to LEAs). State law will determine whether a

particular operation may be legally supported by the Guard. NGR 500-2 contains excellent operational guidance to

National Guard units engaged in counterdrug operations.

5. Additional Support to Counterdrug Agencies.

a. General. Congress has given DoD additional authorities to support Federal, State, local, and foreign

agencies which have counterdrug responsibilities. These are in addition to the authorities contained in 10 U.S.C. §§ 371-

377 (discussed above). Congress has not chosen to codify these authorities, however, so it is necessary to refer to the

public laws instead. Many of these are reproduced in the notes following 10 U.S.C. § 374 in the annotated codes.

b. Section 1004. (Reproduced in an appendix to this Chapter)

(1) Section 1004 is the primary authority used for counterdrug operations. The statute permits broad

support to the following law enforcement agencies which have counterdrug responsibilities:

(a) Federal, State, and Local.

(b) Foreign, when requested by a U.S. Federal counterdrug agency. (Typically the DEA or

member of the State Department Country Team that has counterdrug responsibilities within the country.)

(2) Types of support:

(a) Maintenance and repair of equipment.

(b) Transportation of personnel (U.S. & foreign), equipment, and supplies CONUS/OCONUS.

(c) Establishment of bases of operations CONUS/OCONUS.

(d) Training of law enforcement personnel, to include associated support and training expenses.

(e) Detection and monitoring of air, sea, surface traffic outside the United States, and within 25

miles of the border if the detection occurred outside the United States.

(f) Construction of roads, fences, and lighting along U.S. border.

(g) Linguist and intelligence analyst services.

(h) Aerial and ground reconnaissance.

(i) Establishment of command, control, communication, and computer networks for improved

integration of law enforcement, active military, and National Guard activities.

Chapter 19

Domestic Operations

343
(3) These authorities are not exceptions to the Posse Comitatus Act. Any support provided must

comply with the restrictions of the PCA. Additional, any domestic training provided must comply with the Deputy

Secretary of Defense policy on advanced training.

(4) Approval Authorities: CJCSI 3710.01.

(a) Non-Operational Support. That which does not involve the active participation of DoD

personnel, to include the provision of equipment only, use of facilities, and formal schoolhouse training, is requested and

approved in accordance with DoDD 5525.5 and implementing Service regulations, discussed above.

(b) Operational Support.

1. The Secretary of Defense is the approval authority. The approval will typically be

reflected in a CJCS-issued deployment order.

2. SECDEF has delegated approval authority for certain missions to Combatant

Commanders, with the ability for further delegation, but no lower than a flag officer. The delegation from SECDEF

depends on the type of support provided, the number of personnel provided, and the length of the mission. See CJCSI

3710.01. Example: For certain missions along the southwest border, the delegations runs from SECDEF to JFCOM to

FORSCOM to Joint Task Force SIX (JTF-6). However , SECDEF has continued to withhold the delegation for approval

of counterdrug ground reconnaissance training missions within the United States. (Secretary of Defense Memorandum of

6 October 1998, Subj: Military Support to Counternarcotics Activities, reproduced as an appendix to this Chapter.)

(5) Requests for DoD support must meet the following criteria:

(a) Support requested has a clear counterdrug connection,

(b) Support request must originate with a federal, state or local agency having counterdrug

responsibilities,

(c) Request must be for support that DoD is authorized to provide,

(d) Support must clearly assist with the counterdrug activities of the agency,

(e) Support is consistent with DoD support of the National Drug Control Strategy. DEP&S has

promulgated the following priorities for the provision of support:

1. Multi-jurisdictional, multi-agency task forces that are in a high intensity drug trafficking

area (HIDTA)

2. Individual agencies in a HIDTA

3. Multi-jurisdictional, multi-agency task forces not in a HIDTA.

4. Individual agencies not in a HIDTA

(f) All approved counterdrug operational support must have military training value.

c. Other Statutes.

(1) Section 1206, FY 90 NDAA. Congress directed the armed forces, to the maximum extent

practicable, to conduct training exercises in declared drug interdiction areas.

Chapter 19

Domestic Operations

344
(2) Section 1031, FY 97 NDAA. Congress authorized, and provided additional funding specifically

for, enhanced support to Mexico. The support involves the transfer of certain non-lethal specialized equipment such as

communication, radar, navigation, and photo equipment.

(3) Section 1033, FY 97 NDAA. Congress authorized, and provided additional funding specifically

for, enhanced support to Colombia and Peru. The additional support is similar that provided to Mexico under Section

1031, but also includes boats suitable for riverine operations.

D. Weapons of Mass Destruction In 1996, Congress passed the Defense Against Weapons of Mass Destruction

Act, commonly known as the Nunn-Lugar-Domenici Act. Public Law 104-201. The intent of the Act was to enhance the

capability of the Federal Government to prevent and respond to terrorist incidents involving weapons of mass destruction.

Funding is provided to DoD to develop and maintain domestic terrorism rapid response teams to aid federal, state, and

local officials and responders. There are currently 27 response teams, composed of full time Army and Air National

Guard members. These teams are federally resourced, trained, evaluated, and operating under federal doctrine. They

perform their mission, however, primarily under command and control of state governors. If the teams are federalized,

they fall under the command and control of Joint Task Force, Civil Support (JTF-CS).

Chapter 19

Domestic Operations

345
THE DEPUTY SECRETARY OF DEFENSE

WASHINGTON D.C. 20301-1000

29 JUN 1996

MEMORANDUM FOR SECRETARIES OF THE MILITARY DEPARTMENTS

CHAIRMAN OF THE JOINT CHIEFS OF STAFF

UNDER SECRETARIES OF DEFENSE

COMMANDERS-IN-CHIEF OF THE UNIFIED COMBATANT COMMANDS

ASSISTANT SECRETARIES OF DEFENSE

GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE

INSPECTOR GENERAL OF THE DEPARTMENT OF DEFENSE

DIRECTOR OF ADMINISTRATION AND MANAGEMENT

CHIEF, NATIONAL GUARD BUREAU

SUBJECT: DoD Training Support to U.S. Civilian Law Enforcement Agencies

This directive-type memorandum provides the DoD policy for providing advanced military training to

U.S. civilian law enforcement agencies.

It is DoD policy that no advanced military training will be provided to U.S. civilian law enforcement

agency (CLEA) personnel, except as noted below. Advanced military training, in the context of this policy,

is defined as high intensity training which focuses on the tactics, techniques, and procedures (TTPs) required

to apprehend, arrest, detain, search for, or seize a criminal suspect when the potential for a violent

confrontation exists. Advanced military training includes advanced marksmanship (including sniper

training), military operations in urban terrain (MOUT), advanced MOUT, close quarters battle/close quarters

combat (CQB/CQC), and similar specialized training. It does not include basic military skills such as basic

marksmanship, patrolling, mission planning, medical, and survival skills.

As a single general exception to this policy, the U.S. Army Military Police School is authorized to

continue training CLEA personnel in the Counterdrug Special Reaction Team Course, the Counterdrug

Tactical Police Operations Course, and the Counterdrug Marksman/Observer Course. Additionally, on an

exceptional basis, the Commander-in-Chief, U.S. Special Operations Command (USCINCSOC) may approve

such training by special operations forces. In such cases, USCINCSOC will inform the Executive Secretary to

the Secretary of Defense of the training support provided. Similarly, the U.S. Army MP School will continue

to report training performed in accordance with existing procedures.

Those portions of applicable DoD directives and instructions relating only to the procedures for

coordination and approval of CLEA requests for DoD support are not affected by this memorandum. Those

portions of such directives that address the substance of training that may be provided to CLEAs will be

revised to reflect this change in policy within 90 days.

The Under Secretary of Defense for Policy will notify civilian law enforcement agencies through

appropriate means of this change in policy

/s/ JOHN P. WHITE

Chapter 19

Domestic Operations

346
National Defense Authorization Act, Fiscal Year 1991, Public Law 101-510, as amended, Section 1004, Additional

Support for Counter-Drug Activities

(a) Support to Other Agencies. During fiscal years 1991 through 2002,304 the Secretary of Defense may provide support

for the counter-drug activities of any other department or agency of the Federal Government or of any State, local, or

foreign law enforcement agency for any of the purposes set forth in subsection (b) if such support is requested

(1) by the official who has responsibility for the counter-drug activities of the department or agency of the

Federal Government, in the case of support for other departments or agencies of the Federal Government;

(2) by the appropriate official of a State or local government, in the case of support for State or local law

enforcement agencies; or

(3) by an appropriate official of a department or agency of the Federal Government that has counter-drug

responsibilities, in the case of support for foreign law enforcement agencies.

(b) Types of Support. The purposes for which the Secretary may provide support under subsection (a) are the following:

(1) The maintenance and repair of equipment that has been made available to any department or agency of the

Federal Government or to any State or local government by the Department of Defense for the purpose of

(A) preserving the potential future utility of such equipment for the Department of Defense; and

(B) upgrading such equipment to ensure compatibility of that equipment with other equipment used by

the Department of Defense.

(2) The maintenance, repair, or upgrading of equipment (including computer software), other than equipment

referred to in subparagraph (A) for the purpose of

(A) ensuring that the equipment being maintained or repaired is compatible with equipment used by the

Department of Defense; and

(B) upgrading such equipment to ensure compatibility of that equipment with equipment used by the

Department of defense.

(3) The transportation of personnel of the Untied States and foreign countries (including per diem expenses

associated with such transportation), and the transportation of supplies and equipment, for the purpose of facilitating

counter-drug activities within or outside the United States.

(4) The establishment (an unspecified minor military construction project305) and operation of bases of operations

and training facilities for the purpose of facilitating counter-drug activities of the Department of Defense or any Federal,

State, or local law enforcement agency306 within or outside the United States or counter-drug activities of a foreign law

enforcement agency outside the United States.307

(5) Counter-drug related training of law enforcement personnel of the Federal Government, of State and local

governments, and of foreign countries, including associated support expenses for trainees and the provision of materials

necessary to carry out such training.

(6)

308 The detection, monitoring, and communication of the movement of

(A) air and sea traffic within 25 miles of and outside the geographic boundaries of the United States;

and

(B) surface traffic outside the geographic boundary of the Untied States and within the United States

not to exceed 25 miles of the boundary if the initial detection occurred outside of the boundary.

304 Section 1088(a)(1) of Public Law 102-190 struck out During fiscal year 1991 and inserted in lieu thereof During fiscal years 1991, 1992, and

1993,.

Section 1041(a) of Public Law 102-484 struck out and 1993 and inserted in lieu thereof 1993, and 1994,.

Section 1121(a) of Public Law 103-160 struck out fiscal years 1991, 1992, 193, and 1994 and inserted in lieu thereof fiscal years 1991 through 1995"

Section 1011(a) of Public Law 103-337 struck out through 1995" and inserted in lieu thereof through 1999.

Section 1021(a) of Public Law 105-261 struck out through 1999 and inserted in lieu thereof through 2002.

305 Section 1021(b)(1) of Public Law 105-261 struck through unspecified minor construction and inserted in lieu thereof an unspecified minor

military construction project.

306 Section 1021(b)(2) of Public Law 105-261 inserted of the Department of Defense or any Federal, State, or local law enforcement agency.

307 Section 1021(b)(3) of Public Law 105-261 inserted or counter-drug activities of a foreign law enforcement agency outside the United States.

308 Section 1041(b)(1) of Public law 102-484 struck out (6) Aerial and ground reconnaissance outside, at, or near the borders of the United States.; and

inserted a new par. (6).

Chapter 19

Domestic Operations

347
(7) Construction of roads and fences and installation of lighting to block drug smuggling corridors across

international boundaries of the Untied States.

(8) Establishment of command, control, communication, and computer networks for improved integration of law

enforcement, active military, and National Guard activities.

(9)

309 The provision of linguist and intelligence analyst services.

(10) 310 Aerial and ground reconnaissance.

(c) 311 Limitation on Counter-Drug Requirements. The Secretary of Defense may not limit the requirements for which

support may be provided under subsection (a) only to critical, emergent, or unanticipated requirements.

(d) Contract Authority. In carrying out subsection (a), the Secretary of Defense may acquire services or equipment by

contract for support provided under that subsection if the Department of Defense would normally acquire such services or

equipment by contract for the purpose of conducting a similar activity for the Department of Defense.

(e) Limited Waiver of Prohibition. Notwithstanding section 376 of Title 10, United States Code, the Secretary of Defense

may provide support pursuant to subsection (a) in any case in which the Secretary determines that the provision of such

support would adversely affect the military preparedness of the United States in the short term if the Secretary determines

that the importance of providing such support outweighs such short-term adverse effect.

(f) Conduct of Training or Operation to Aid Civilian Agencies. In providing support pursuant to subsection (a), the

Secretary of Defense may plan and execute otherwise valid military training or operations (including training exercises

undertaken pursuant to section 1206(a) of the National Defense Authorization Act for Fiscal Years 1990 and 1991 (Public

Law 101-189; 103 State. 1564)) for the purpose of aiding civilian law enforcement agencies.

(g) Relationship to Other Laws.--(1) The authority provided in this section for the support of counter-drug activities by

the Department of Defense is in addition to, and except as provided in subsection (2), not subject to the requirement of

chapter 18 of title 10, United Sates Code.

(2) Support under this section shall be subject to the provision of section 375 and, except as proved in subsection

(e), section 376 of title 10, United States Code.

(h)

312Congressional Notification of Facilities Projects.(1) When a decision is made to carry out a military construction

project described in paragraph (2), the Secretary of Defense shall submit to the congressional defense committees written

notice of the decision, including the justification for the project and the estimated cost of the project. The project may be

commenced only after the end of the 21-day period beginning on the date on which the written notice is received by

Congress.

(2) Paragraph (1) applies to an unspecified minor military construction project that 

(A) is intended for the modification or repair of a Department of Defense facility for the purpose set

forth in subsection (b)(4); and

(B) has an estimated cost of more than $500,000.

309 Section 1041(b)(2) of Public Law 102-484 added a new par. (9).

310 Section 1121(b) of Public Law 103-160 added a new par. (10).

311 Section 1041(c) of Public Law 102-484 redesignated subsecs. (c) through (g) as (d) through (h), and inserted a new subsec. (c).

312 Section 1021(c) of Public Law 105-261 inserted a new par. (h).

Chapter 19

Domestic Operations

348
THE SECRETARY OF DEFENSE

1000 DEFENSE PENTAGON

WASHINGTON, DC 20301-1000

October 6, 1998

MEMORANDUM FOR SECRETARIES OF THE MILITARY DEPARTMENTS

CHAIRMAN OF THE JOINT CHIEFS OF STAFF

UNDER SECRETARY OF DEFENSE FOR POLICY

GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE

COMMANDERS OF THE COMBATANT COMMANDS

DIRECTOR OF ADMINISTRATION AND MANAGEMENT

DIRECTOR, DEFENSE INTELLIGENCE AGENCY

DIRECTOR, NATIONAL SECURITY AGENCY

SUBJECT: Military Support to Counternarcotics Activities

This memorandum supersedes the Secretary of Defense (SecDef) policy memorandum dated

September 18, 1989, subject: Military Support to International Counternarcotics Activities. The

Department of Defense (DoD) executes its statutory civilian law enforcement counterdrug support

responsibilities pursuant to the National Security Strategy, the National Military Strategy, and the

National Drug Control Strategy. As a consequence of the evolving tactics of drug traffickers, DoD is

responding to requests by drug law enforcement agencies for increased training in riverine, coastal

maritime, and small unit tactics; for extension of our training, enhanced intelligence collection,

analysis and dissemination support; and for expansion of our helicopter and maritime transportation

support. Due to this changing operational environment, the application of new technologies and

increased levels of DoD support, it is necessary to update and clarify DoD policy regarding military

support to counternarcotics activities both domestically and internationally. Accordingly, the

following policies apply to all Military departments, Commander-in-Chief (CINC) assigned forces,

and DoD agencies.

DoD personnel shall not deploy or otherwise travel into a foreign country in connection with a

non-DoD agency request for counterdrug support or a counterdrug operation, unless the Secretary

of Defense or Deputy Secretary of Defense has approved the deployment or travel, or has

specifically delegated that approval authority to the respective theater CINC, a Service, or the

DoD Coordinator for Drug Enforcement Policy and Support.

Chapter 19

Domestic Operations

349
DoD personnel shall not directly participate in law enforcement activities such as a search,

seizure, arrest, or similar activity. Consistent with this proscription, DoD counterdrug support to

drug law enforcement agencies will be distinguishable and separate from law enforcement

activities undertaken by the drug law enforcement agents.

DoD personnel are prohibited from accompanying U.S. drug law enforcement agents or host

nation law enforcement forces and military forces with counterdrug authority on actual

counterdrug field operations or participating in any activity in which counterdrug-related

hostilities are imminent. DoD personnel will make every effort to minimize the possibility of

confrontation (armed or otherwise) with civilians.

DoD personnel will not accompany U.S. drug law enforcement agents, host nation law

enforcement forces or host nation military forces with counterdrug authority to/or provide

counterdrug support from, a location outside a secure base or area. If included as part of an

approved SecDef deployment order, DoD personnel may proceed to a forward operating base or

area in accordance with the deployment order when directed by the commander or other official

designated by the responsible CINC.

Counterdrug training or support provided by DoD personnel must be requested by a U.S. law

enforcement agency. If overseas, counterdrug support must be requested by an appropriate

official of a department or agency of the Federal Government that has counterdrug

responsibilities in that foreign country. The request must be made to the appropriate

representative of said department or agency on behalf of the host nation and be approved by the

U.S. Chief of Mission.

All counterdrug training or support provided by DoD personnel must be authorized by statute. It

may only be provided to Federal, state and local law enforcement agencies, or host nation police,

security forces, and military forces that have counterdrug responsibilities.

The authority delegated in Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3710.01,

dated May 28, 1993, to approve counterdrug ground reconnaissance training missions in support

of law enforcement agencies by the U.S. Armed Forces in federal status in the 54

States/Territories of the United States, is withdrawn. This withdrawal does not affect DoD

funded National Guard counterdrug ground reconnaissance support missions, approved in the

Governors State Plans, pursuant to 32 U.S.C. § 112.

The approval procedures for military support to counternarcotics are as follows:

1. The Military Departments and the CINCs of the Unified Commands will process all requests

received directly from non-DoD agencies for operational support to counternarcotics activities in

accordance with CJCSI 3710.01. Requests for equipment loans and transfers should be handled

in accordance with applicable domestic laws and DoD policies and directives.

2. The Chairman of the Joint Chiefs of Staff shall forward all requests for support, with his

recommendation, to the Secretary or Deputy Secretary of Defense through the Under Secretary of

Defense for Policy and the DoD Coordinator for Drug Enforcement Policy and Support. The

DoD Coordinator for Drug Enforcement Policy and Support will forward the request for support

to the General Counsel for review. When the support will occur outside the United States and its

Chapter 19

Domestic Operations

350
territories, the DoD Coordinator for Drug Enforcement Policy and Support shall be responsible

for coordinating the request with the Department of State before its submission to the Secretary or

Deputy Secretary of Defense for approval. DoD personnel shall not deploy or otherwise travel

into a foreign country in connection with such a request unless the Secretary or Deputy Secretary

of Defense has approved the movement, or has specifically delegated that approval authority to

the respective theater CINC, a Service, or DoD Coordinator for Drug Enforcement Policy and

Support.

3. Messages to the Chairman of the Joint Chiefs of Staff (Attention: J-3, Joint Staff) concerning

requests described in paragraph (1) should include the following:

a) The identity (name or specific position title) of the official who requested the support.

b) Mission of the DoD personnel involved and the source of the DoD supporting personnel (in

theater assigned or other than theater assigned).

c) Numbers of personnel involved.

d) Proposed dates of the operation. Additionally, for international missions, the arrival in and

departure from the host nation.

d) Status of approval by host country (name and specific position of host nation official granting

approval), U.S. Ambassador, and appropriate CINC.

f) Explanation of counterdrug nexus of the DoD support provided.

g) Source of funding.

h) Citation of statutory and other legal authority for providing the support.

i) Command relationships.

j) Brief review of the risk involved to U.S. personnel.

k) Whether or not personnel will be armed and nature of the armament.

l) Applicable rules of engagement as well as limitations on participation.

m) Legal status of U-S. personnel deployed in a foreign nation.

I do not want to deter initiatives to improve and enhance the Departments support. However, I

want to minimize and consciously address any new risks. All addressees are to ensure that requests

for Department support, that go beyond the basis tenets in this policy, are forwarded through the

Chairman of the Joint Chiefs of Staff to the Office of the Secretary of Defense for review and the

Secretary of Defense for approval.

/s/Bill Cohen

Chapter 19

Domestic Operations

351
Ch

apter 19

Domestic Operations

352
CHAPTER 20

INFORMATION OPERATIONS

INTRODUCTION

In the array of challenges that face an operational attorney today, there is perhaps no more misunderstood, misapplied,

mysterious task than that of coordinating the legal aspects of information operations (IO). The debate whether IO add a

new dimension to our warfighting capability or represent a revolution that will reshape the way the Army accomplishes

its strategic objectives remains unsettled. The National Military Strategy lists IO as one of the key capabilities which the

U.S. military must provide in order to give the national leadership a range of viable options for promoting and protecting

U.S. interests in peacetime, crisis, and war.313

Commentators often shake their heads sagely and intone vague phrases such as Information operations are the wave of

the future. Joint Pub. 3-13 admonishes commanders that the growth in IO-related technology and capabilities and

associated legal issues makes it critical for commanders at all levels of command to involve their staff judge advocates in

development of IO policy and conduct of IO.

In practice, IO raise many questions and legal issues that cannot be precisely refined and distilled onto a fact sheet for the

curious commander or staff officer. Among other areas, the emerging discipline of IO synthesizes laws and policies

related to intelligence collection and oversight, space law, computer security, psychological operations, mission planning,

law of armed conflict targeting constraints, information security and exploitation, and search and seizure guidelines.

There are many areas where current laws contain gaps, which can frustrate lawyers and commanders who seek crystal

clear answers for important operational issues. Despite the somewhat shadowy framework of law and practice, IO have a

stature and following that will make them integral to future operational planning and execution.

OLD WINE INTO NEW WINESKINS

In a very real sense, IO is nothing new. No commander in history has willingly communicated his intentions to the

enemy, or intentionally followed the enemy deception plan. History is filled with examples of successful IO. The D-Day

deception showed the power of giving the enemy a false impression. The Union fortune in finding Lees plans prior to

the Battle of Antietam shows the need to preserve ones own information. The intelligence community as a whole is built

around the need for preserving information vital to national security while learning the information crucial to our

adversaries.

FORMAL DEFINITIONS

IO consists of actions taken to affect adversary information and information systems while defending our own

information. IO are conducted at all levels of war (strategic, operational, and tactical) and across the full range of military

operations (peacetime, conflict, and war). Thus, IO is an umbrella term that includes what used to be regarded as distinct

facets of operations into one overarching planning and execution imperative. The operational component of IO has seven

elements:

Operations Security (OPSEC) - The discipline relating to denying valuable tactical and strategic information to the

enemy.314

Psychological Operations (PSYOP) - The art of shaping enemy perceptions in order to achieve the objectives of the

mission. Current law and policy prohibits PSYOP directed at a U.S. target audience.315

313 http://www.dtic.mil/jcs/nms.

314 See JOINT PUB. 3-54, JOINT DOCTRINE FOR OPERATIONS SECURITY (27 Jan. 1996).

315 See THE JOINTCHIEFS OF STAFF, JOINT PUB. 3-53, DOCTRINE FOR JOINT PSYCHOLOGICAL OPERATIONS (10 July 1996). PSYOP are operations planned

to convey selected information and indicators to foreign audiences to influence their emotions, motives, objective reasoning, and ultimately the behavior of

foreign governments, organizations, groups, and individuals.

Chapter 20

Information Operations

353
Electronic Warfare (EW) - The use of high powered microwaves to jam enemy transmissions or use technology to

interfere with the enemys ability to collect and transmit information. The goal is to degrade, disrupt, deny, and

exploit the enemy use of the electromagnetic spectrum.

Military Deception  A key part of successful operations predating the Trojan Horse. This is an important element in

obtaining tactical or operational surprise.

Physical Destruction  Using kinetic ordinance to target the enemy ability to collect or transmit information. Despite

the objections of some journalists who are often using enemy infrastructure for their own commercial purposes,

enemy radio towers, communications stations, power grids, etc. are lawful military targets so long as planners and

lawyers consider the familiar targeting principles in reviewing the target packet and approving the target. A good

example is the destruction of the Serbian television station in Belgrade that was broadcasting propaganda and

misinformation to the civilians and military in the Former Republic of Yugoslavia. The key is to articulate the

military necessity for attacking the target and do so in a manner that minimizes collateral damage.

Space is used for military communications, command and control, navigation, and weapons guidance. IO planners often

encounter questions regarding the legal extent to which satellites can be targeted. Orbital surveillance is legal and

common.316 Many IO activities would clearly be permissible within the parameters of the peaceful use required by the

relevant treaties. There are several major international agreements that relate to the legality of targeting orbital objects.

1) The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including

the Moon and Other Celestial Bodies.317 This Treaty mandates that all nations are free to explore and use Outer Space on

a basis of equality and in accordance with international law, to include the United Nations Charter. NOTE: This allows a

wide range of IO activities which are characterized as either under the authority of the Security Council or are taken

pursuant to the rights of individual or collective self defense contained in the Charter.

2) The 1971 Agreement Relating to the International Telecommunications Satellite Organization (INTELSAT)318

and The 1976 Convention on the International Maritime Satellite Organization (INMARSAT)319 require that space be

used for other than for military purposes and peaceful purposes respectively. State practice has established that these

conventions are relevant to IO only because they establish the principle of nondiscrimination among states that use

satellites.320

THE BOTTOM LINE: Satellites that contribute to enemy military action are lawful targets so long as the damage

caused by either destroying satellite or interfering with its efficient transmission of information does not cause damage to

civilian targets that is excessive in relation to the direct and concrete military advantage to be gained. For example, a

GPS satellite that transmits information to a fleet of civilian airliners while they are in flight might not be a lawful target.

Civil Affairs (CA)  The Civil-Military Commission is one of the most important facets of the complicated operation

in Bosnia. The CA function is to spread information to the population, civilian police, local officials, host nations

businesses, NGOs, etc. Successful CA gain local acceptance and support for the military goals. The CA effort is a

force multiplier because it offers the prospect for accomplishing the military mission without having to apply military

power.321 The nature of the CA mission puts personnel in a very favorable position to collect information. CA

activities encompass the entire range of cultural, political, social, and economic issues within the area of operations.

The CA unit should be included within the intelligence collection plan and should be of great use in planning the

PSYOP campaign themes and target audience.

Public Affairs (PA)  The media can be a powerful ally in disseminating truthful information regarding U.S.

objectives and practices. In particular, the media war can be decisive in determining whether or not the U.S. and its

316 Glenn H. Reynolds, International Space Law: Into the Twenty-First Century, 25 VAND. J. TRANSNATL L. 225, 230 (1992).

317 18 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205 (27 Jan. 1967).

318 23 U.S.T. 3813, T.I.A.S. No. 7532 (20 Aug. 1971), reprinted in 10 I.L.M. 909 (1971).

319 31 U.S.T. 1, T.I.A.S. No. 9605, 1143 U.N.T.S. 105 (3 Sept. 1976).

320 LAWRENCE T. GREENBERG ET AL, INFORMATION WARFARE AND INTERNATIONAL LAW 22 (1998).

321 See JOINT PUB. 3-57, JOINT DOCTRINE FOR CIVIL AFFAIRS (31 MAY 1996).

Chapter 20

Information Operations

354
allies achieve the objectives of the operation.322 The role of PA as a component of the broader IO effort is to counter

enemy propaganda and protect from misinformation and rumors. PA provides objective reporting which is accurate,

truthful, and balanced, yet which is conscious of the OPSEC requirements for protecting vital military information.

At its root, the emerging doctrine and practice of information operations is best understood as an element of combat

power which should be focused when and where it best supports the operation. For example, the information campaign to

prevent widespread violence following the Brcko decision in Bosnia-Herzegovina began more than a year before the

decision was released. In this sense, IO are driven by the planning factors of METT-TC just as any other aspect of

combat power (e.g. mission, enemy, terrain, troops, time available, and civilian considerations).

Offensive IO are those operations undertaken to influence the human decision making processes of the adversary.

Offensive IO involves the integration and orchestration of varied activities into a coherent, seamless plan to achieve

specific objectives. Offensive IO objectives must be clearly established, support overall national and military objectives,

and include identifiable indicators of success.

In order to efficiently attack adversary information and information systems, planners must be able to do the

following:

Understand the adversarys or potential adversarys perspective and how it may be influenced by IO

Establish IO objectives

Identify information systems value, use, flow of information, and vulnerabilities

Identify targets that can help achieve IO objectives

Determine the target set

Determine the most effective IO capabilities for affecting the vulnerable portion of the targeted information or

information systems

Predict the consequences of employing specific IO capabilities with a predetermined level of confidence.

Defensive IO323 integrate and coordinate policies and procedures, operations, personnel, and technology to protect

information and defend information and information systems. Defensive IO are conducted and assisted through

information assurance (IA), OPSEC, physical security, counterdeception, counter- PSYOP propaganda,

counterintelligence (CI), EW. Defensive IO ensure timely, accurate, and relevant information access while denying

adversaries the opportunity to exploit friendly information and information systems for their own purposes.

Special information operations (SIO) are information operations that, by their sensitive nature and due to their

potential effect or impact, security requirements, or risk to the national security of the United States, require a special

review and approval process.324 This class of IO may require the additional coordination mandated by Title V of the

National Security Act.

THE PROBLEM OF PLANNING

Current doctrine calls for an IO cell which has the responsibility of coordinating, deconflicting, and orchestrating the

whole range of discrete functions that together comprise the IO plan. For example, since the PSYOP campaign will

transmit information to enemy intelligence systems, it must be coordinated with the CI, deception, and OPSEC planners.

Likewise, proper planning will prevent the EW assets from nullifying the efforts of the PA, CA, or PSYOP elements.

322 See JOINT PUB. 3-67, DOCTRINE FOR PUBLIC AFFAIRS IN JOINT OPERATIONS (14 MAY 1997).

323 See generally CHAIRMAN, JOINT CHIEFS OF STAFF INSTR. 6510.01B, DEFENSIVE INFORMATION OPERATIONS IMPLEMENTATION (22 Aug. 1997).

324 This class of information operations may, by definition, fall within the realm of covert action as defined in 50 U.S.C. § 413 (any activity or activities

of the U.S. government designed to influence political, economic, or military conditions abroad, where it is intended that the role of the U.S.

government will not be apparent or acknowledged publicly). 50 U.S.C. § 413b(f) prohibits any covert action which is intended to influence United

States political processes, public opinion, policies, or media. Title V of the National Security Act requires specific presidential findings prior to the

initiation of a covert action, and mandates that the President keep the Congressional Intelligence committees fully and currently informed.

Chapter 20

Information Operations

355
Joint Pub. 3-13 and Army doctrine both call for the IO cell to include the JAG, the signal officer, the EW, deception,

PSYOP, and OPSEC representatives, as well as the J-2 and targeting representatives from the J-3. A field support team

(FST) from the Land Information Warfare Activity (LIWA) can augment the IO cell (which can be found at all levels of

command).

325 A Joint Task Force IO cell may be augmented by a team from the Joint Command and Control Warfare

Center. Not surprisingly, given the range of activities that are part of the IO plan, the relevant information is found in

various places within the OPLAN.

In a plan following the JOPES format, Appendix 3, to Annex C has recently been redesignated as the IW

(Information Warfare) appendix. The IW appendix has the following subsections:

Tab A Military Deception

Tab B Electronic Warfare

Tab C Operations Security

Tab D Psychological Operations

Tab E Physical Destruction

Aside from these specific locations for IO related areas, the Civil Affairs annex (Annex G) is a crucial component of

the IO planning. The Public Affairs Annex (Annex F) must be integrated as well. Finally, the two specific references to

IO are found in Appendix 2 (IO-D) to Annex K (C3) and Appendix 6 to Annex B (Intel Spt to IO).

THE IO PLANNING PROCESS USING MILITARY DECISION-MAKING PROCESS (MDMP)

The members of the IO cell should follow the MDMP in preparing an OPLAN. At the Receipt of Mission phase, the

IO team must be focused with the rest of the battle staff on defining a clearly stated mission. The commanders vision

should include IO specific guidance on how the IO cell should support the operation. The IO planners should state the

mission in finite and measurable terms, and the components of the IO plan should be tied directly to the operational

decision points specified in the commanders intent.

During the Mission Analysis phase of planning, the IO cell should develop a concept that is linked to the overall

mission. The IO concept is a who, what, where, when, why, and how articulation of the IO activities that will support the

specified and implied tasks developed by the battle staff. Although the initial set of IO objectives is defined during

mission analysis, it will be refined further during COA development.

During the Course of Action (COA) Development, the IO cell should coordinate IO actions with the planning

scheme. For example, the IO team will succinctly state how IO will support the operation, plan IO execution timelines,

and develop IO Target and Protect lists. The COA Analysis (Wargame) phase of planning will entail comparison of the

IO synchronization matrix with the overall battle staff sync matrix. For example, timing a deep Apache attack against a

high-value C4I (Command, Control, Communications, Computers, Intelligence) node to coincide with a suppression of

enemy air defense (SEAD) mission may significantly aid the IO campaign.

The COA Comparison will require the IO cell to weigh the strengths and weaknesses of IO support for each of the

COA developed by the battle staff. The IO staff will brief the IO aspects of the plan to the commander prior to COA

Approval. The IO annex developed during Orders Production must focus on providing the relevant information for both

offensive and defensive IO. IO input to the base order is generally included in paragraph 3 (operations), but the IO

planners must ensure that information is cross-walked between the various annexes that touch on IO related subjects.

325 To request LIWA assistance, Army organizations should address messages and correspondence to one of the following: DAMO-ODI, (703) 697-

1119/3636, DSN 227, HQDA, ATTN: DAMO-ODI, 400 Army Pentagon, Washington, D.C. 20310-0400, GENSER HQDAWASHDC//DAMO-ODI//,

NIPRNET fredrib@hqda-aoc.army.pentagon.mil

Chapter 20

Information Operations

356
THE NEW DIMENSION

The explosion of technology has given military planners an important new dimension for managing and interdicting

information. In this new arena, the electrons are the weapons. While the underlying notion of IO is as old as war itself,

the speed with which information flows is indeed revolutionary. At the same time, the military is now dependent upon

the information stored in computer systems around the world, and relies on the accurate transmission of information.

In the realm of offensive IO, the computer revolution has spawned a new doctrinal term. CNA is a new acronym for

computer network attack. CNA entails operations to disrupt, deny, degrade, or destroy information resident in

computers and computer networks, or the computers and networks themselves. (NOTE: This term was promulgated in

DoDD S-3600.1 of 9 Dec 96.)

IO AND THE LAW OF WAR

The revolution in computer technology and the interconnected flow of information between sovereign states presents

new challenges for conducting IO as a lawful component of military operations. The principles of the Law of War

certainly apply, but with a couple of minor exceptions, the black letter law does not fit cleanly into an IO application.

The interconnected nature of the digital age raises issues relating to the Law of Neutrality in any IO campaign. As

a general rule, all acts of hostility in neutral territory, including neutral lands, waters, and airspace are prohibited. In

theory, using the wires or digital cables of a network associated with a neutral Party as a conduit for information

operations would jeopardize that States neutrality. If the neutral nation is unable or unwilling to affirmatively maintain

its neutrality, the belligerents are allowed to take such measures as are necessary to negate the enemy efforts. There are

some specific IO related prohibitions with regard to neutral States.

326

327

Hague V, Art. 3 forbids a belligerent from erecting a wireless telegraphy station or other apparatus for the purpose

of communicating on the territory of the neutral, and forbids belligerents from using any installation of this kind

established by them before the war  for purely military purposes. (emphasis added)

Art. 5 mandates that the neutral state prevent any belligerent from allowing belligerents to establish communications

equipment on its territory, in its airspace, or in its waters.

Lawful Activities with IO Implications. Hague V, Art. 8 mandates that a neutral power is not required to forbid or

restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus

belonging to it or to companies or private individuals

THE PROBLEM OF UNANTICIPATED CONSEQUENCES:328

IO planners should consider the problems of discriminating between civilian and military targets when designing a

CNA. Protocol I, Art. 48 mandates that Parties to the conflict distinguish between the civilian population and combatants

at all times, and between civilian objects and military objectives, and direct operations only against military objectives.

An EW objective could likely knock out civilian ambulance radios, for example. Planners must bear in mind the

fundamental principles of the Law of War:

Protocol I, Art. 51(2) The civilian population as such, as well as individual civilians, shall not be the object of

attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are

prohibited.

326 See Hague Convention No. V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct. 18, 1907, 36 Stat. 2310,

UST 540.

327 CENTER FOR OCEANS LAW AND POLICY, ANNOTATED SUPPLEMENT TO THE COMMANDERS HANDBOOK ON THE LAW OF NAVAL OPERATIONS ¶ 7.3

(15 Nov. 1997).

328 See, e.g., Protocol I, Annex I, arts. 7-13.

Chapter 20

Information Operations

357
Hague IV, Art. 22 The right of belligerents to adopt means of injuring the enemy is not unlimited.

Protocol I, Art. 57(2)(a)(ii), those who plan or decide upon attack shall take all feasible precautions in the choice of

means and methods of attack with a view to avoiding, and in any event, to minimizing, incidental loss of civilian life,

injury to civilians, and damage to civilian objects.

Protocol I, Art. 51(5)(b): Where civilian objects are not specifically targeted but nonetheless are at risk because of

collateral damage, the collateral damage may not be excessive in relation to the direct and concrete military

advantage obtained through the destruction of the intended target.

Perfidy versus Lawful Deception: Protocol I, Art. 37 prohibits belligerents from killing, injuring, or capturing an

adversary by perfidy. The essence of this offense lies in acts designed to gain advantage by falsely convincing the

adversary that applicable rules of international law prevent engaging the target when in fact they do not. The use of

enemy codes and signals is a time-honored means of tactical deception. However, misuse of distress signals or of signals

exclusively reserved for the use of medical aircraft would be perfidious. The use of deception measures to thwart

precision guided munitions would be allowed, while falsely convincing the enemy not to attack a military target by

electronic evidence that it was a hospital would be perfidious.

329

STATUTORY TOOLS FOR DEFENSIVE IO

The computer age has spawned many statutes that will be the tools used by the operational lawyer to assist the IO

cell in conducting defensive IO. Some of these are summarized below.

Electronic Communications Privacy Act of 1986 (ECPA). Enacted 18 U.S.C. §§ 2701-11, §§ 3121-27, § 1367, §

3117, § 2521, and made numerous amendments to provisions of the Communications Act of 1934.

330

§ 107 of the Act specifically states that Nothing contained  constitutes authority for the conduct of any intelligence

activity. 18 U.S.C. § 2511 makes it unlawful

331

for any person to intentionally intercept, use, or disclose or endeavor to intercept, use, or disclose

any wire, oral, or electronic communication. NOTE: Must distinguish between real-time interception

which is governed by 18 U.S.C. § 2511 and stored communications such as e-mail that is governed by

18 U.S.C. § 2703. The ECPA lists 9 Statutory Exceptions, 3 of which are central to IO because they

permit monitoring by:

1) The System Administrator while engaged in any activity which is necessary incident to the

rendition of his service or to the protection of the rights or property of the provider of that service.

18 U.S.C. § 2511(2)(a)(i)

2) where such person is a party to the communication or one of the parties has given consent to

such interception. 18 U.S.C. § 2511(2)(c)

329 Protocol I, Art. 38(1).

330 Pub. L. No. 99-508, 100 Stat. 1848 (1986).

331 The Foreign Intelligence Surveillance Act of 1978 (FISA) is the vehicle for defensive IO aimed at discovering the loss of FOREIGN

INTELLIGENCE INFORMATION; Information that relates to the ability of the U.S. to protect against the following: Attack or hostile act of a

foreign power or agent, Sabotage or international terrorism, Clandestine intelligence activities by an intelligence network or service of a foreign power

or by an agent, or Information on foreign power or foreign territory relative and necessary to the national defense and security of the U.S. or the foreign

affairs of the U.S.

FISA is the statutory mechanism for obtaining two major categories of information related to defensive IO:

Acquisition of a nonpublic communication by electronic means without the consent of a person who is a party to an electronic communication or, in

the case of a non-electronic communication, without the consent of a person who is visibly present at the place of the communication.

Physical searches seeking to obtain foreign intelligence information.

Chapter 20

Information Operations

358
or 3) pursuant to a court order directing such assistance signed by the authorizing judge or a

certification in writing by a person designated in 18 U.S.C. § 2518(7) or the Attorney General that

no court order is required by law and that all statutory requirements have been met. 18 U.S.C. §

2511(2)(a)(ii)

Information Operations Warrants for Law Enforcement Purposes.

18 U.S.C. § 2703(c): with subpoena, the government can obtain the name, address, local and long distance telephone

billing records, telephone number or other subscriber information. The government entity receiving such information

is not required to provide notice to the consumer.

18 U.S.C. § 2703(d) allows a court to issue an order for disclosure if the government offers specific and articulable

facts that there are reasonable grounds to believe that the contents of electronic communication or the records within

the service providers database or other information sought are relevant and material to an ongoing criminal

investigation.

The service provider may move to quash or modify the order if the request is unusually voluminous or would cause

an undue burden on the carrier.

§ 270 is the mechanism for obtaining subscriber connection logs, sending IP addresses, receiving IP addresses, times

of access and log on, content of saved communications, and more.

COMSEC Monitoring: This is a clearly defined, bright line exception to the general limitations on content monitoring.

§ 107(b)(1) of the Electronic Communications Privacy Act specifically allows activities intended to intercept encrypted

or other official communications of United States executive branch entities or United States Government contractors for

communications security purposes.

NSA is the proponent under the National Telecommunications and Information Systems Security Directive (NTISS)

Directive No. 600, Communications Security Monitoring.

COMSEC is one of the tools available to fulfill the DoD mandate to accredit automated information systems and ensure

compliance with automated information systems security requirements.

332 COMSEC monitoring as part of the IO

campaign is permitted by revised AR 380-53.

333 Here are some of the key guidelines for conducting COMSEC:

Information Systems Security Monitoring will be conducted only in support of security objectives.

Information Systems Security Monitoring will not be performed to support law enforcement or criminal or

counterintelligence investigations.

The results of Information Systems Security Monitoring shall not be used to produce foreign intelligence or

counterintelligence, as defined in Executive Order 12333.

The NTISS (as implemented in AR 380-53) requires that the persons conducting Information Systems Monitoring

receive formal training in the procedures outlined in AR 380-53, the provisions of AR 381-10, the provisions of AR 381-

12, para. 3-1, the provisions of AR 190-53, and the provisions of applicable Federal laws (18 U.S.C. § 2510, etc.)

These are the prerequisites for lawful Information Systems Monitoring:

NOTIFICATION: Users of official DOD telecommunications will be given notice that: (1) Passing classified

information over non-secure DOD telecommunications systems, other than protected distribution systems or automated

332 U.S. DEPT OF DEFENSE, DIR. 5200.28, SECURITY REQUIREMENTS FOR AUTOMATED INFORMATION SYSTEMS (21 Mar. 1998).

333 U.S. DEPT OF ARMY, FIELD MANUAL 380-53, INFORMATION SYSTEMS SECURITY MONITORING (29 Apr. 1998).

<http://www.acert.belvoir.army.mil/ar380_53.pdf>

Chapter 20

Information Operations

359
information systems accredited for classified processing is prohibited; (2) Official DOD telecommunications systems are

subject to Information Systems Security Monitoring at all times; and (3) Use of official DOD telecommunications

systems constitutes consent by the user to Information Systems Security Monitoring at any time.

CERTIFICATION: The Office of the General Counsel has certified the adequacy of the notification procedures in

effect, and the OGC and TJAG have given favorable legal review of any proposed Information Systems Security

Monitoring that is not based on a MACOM request. See para. AR 380-53, 2-4 for a specific list of information required

prior to certification.

AUTHORIZATION: The Deputy Chief of Staff for Intelligence has authorized Information Systems Security

Monitoring to be conducted within the MACOM involved.

Notification Guidance for Automated Information Systems

Use of Information Acquired During Information Systems Security Monitoring. See AR 380-53, para. 2-8(c)(3) for

required procedures if materials are required as evidence.

The results of Information Systems Security Monitoring may not be used in a criminal prosecution without prior

consultation with the OGC and TJAG. (AR 380-53, para. 2-8(5)).

Information obtained through Information Systems Security Monitoring may be used in connection with disciplinary or

administrative action against Department of the Army personnel for knowing, willful, or negligent actions that result in

the unauthorized disclosure of classified information (see AR 380-5, paras 14-101 and 14-102). In this case, the

Information Systems Security Monitoring element is authorized to release names, or recorded media, of the

telecommunications involved to the supported commander or designated representative for use as evidence. Procedures

will be strictly adhered to as follows:

The supported commander, after having consulted with the servicing judge advocate (JA), will provide the

Information Systems Security Monitoring element with a written request, specifically identifying the

telecommunications messages or communications required. The request will identify the servicing JA consulted.

The Information Systems Security Monitoring element will obtain a signed receipt from the supported commander or

designated representative for the requested materials. The receipt will include a statement that the commander or

representative is familiar with and will comply with the security requirements and privacy restrictions applicable to

the material.

The Information Systems Security Monitoring element will immediately notify its chain of command that the

material has been requested .

The Information Systems Security Monitoring unit commander will notify HQDA (DAMI-CHI), in writing, within 5

working days of providing the material to the supported command.

Information may be obtained incidental to an authorized Information Systems Security Monitoring mission that

relates directly to a serious crime such as sabotage or threats or plans to commit offenses that threaten a life or could

cause significant damage to or loss of Government property (this includes data on Government AIS).

When evaluating or assessing the security of U.S. Army AIS, Information Systems Security Monitors may detect

computer anomalies that could potentially be unauthorized intrusions into Army AIS . When Information Systems

Security Monitors detect such anomalies, they must contact the system administrator and ACERT334 immediately. The

system administrator will then follow the procedures of AR 380-19 by taking measures to ascertain that the anomaly is in

334 The Army Computer Emergency Response Team (ACERT) conducts command and control protect operations in support of the Army to ensure the

availability, integrity, and confidentiality of the information and information systems used in planning, directing, coordinating, and controlling forces in

the accomplishment of the mission across the full spectrum of support to military operations. See < http://www.acert.belvoir.army.mil/> Contact at

COMM 1-888-203-6332/ DSN 235-1113.

Chapter 20

Information Operations

360
fact an unauthorized intrusion, notifying counterintelligence (CI) and criminal investigation division (CID) so that the

offices may conduct an investigation of the incident.

Information Systems Security Monitors should not support the process of determining if the investigation is properly a

law enforcement or intelligence matter, and must discontinue monitoring the suspected intrusion as soon as the system

administrator or ACERT has interceded In no case may the Information System Security Monitors continue monitoring

the anomaly for more than 24 hours. Data pertaining to the anomaly or suspected intrusion recorded during the 24-hour

period will not be accessed until the appropriate legal authorization is obtained to further investigate the activity.

Chapter 20

Information Operations

361
Ch

apter 20

Information Operations

362
CHAPTER 21

NON-COMBATANT EVACUATION OPERATIONS (NEO)

REFERENCES

1. DoD Directive 3025.14, Non-Combatant Evacuation Operations, 5 November 1990.

2. DoD Directive 2000.11, Handling Requests for Political Asylum and Temporary Refuge, 3

March 1972.

3. Executive Order No. 12656, Assignment of Emergency Preparedness Responsibilities, 3

C.F.R. 585 (88 Compilation), 18 November 1988.

4. Chairman, Joint Chiefs of Staff Instruction 3121.01A, Standing Rules of Engagement

(SROE) for U.S. Forces, 15 January 2000 (portions of this document are classified

SECRET).

5. Executive Order 11850, Renunciation of Certain Uses in War of Chemical Herbicides and

Riot Control Agents, 3 C.F.R. 980 (71-75 Compilation) 8 Apr 75, reprinted in FM 27-10

at C.1 p. 2 (56).

6. Vienna Convention on Diplomatic Relations, open for signature Apr. 8, 1961, 23 U.S.T.

3227, T.I.A.S. 7502, 500 U.N.T.S. 95.

7. DoD Directive 5515.8, Single-Service Assignment of Responsibility for Processing of

Claims, 9 June 1990.

8. FMFM 8-1, Special Operations [See Chapter 26] 13 August 1974.

9. JAG INST 5800.7C, Manual of the Judge Advocate General, Sec. 1013, 3 October 1990.

10. FM 90-29, Non Combatant Operations, 20 May 1994.

11. Steven Day, Legal Considerations in NEOs, 40 Naval L. Rev. 45, 1992.

NATURE AND CHARACTERISTICS OF NEOS

NEOs are operations directed by the Department of State (DoS), the Department of Defense (DoD), or other appropriate

authority whereby noncombatants are evacuated from areas of danger overseas to safe havens or to the United States.

Recent examples include:

Somalia (Eastern Exit): 300 civilians, U.S. & Soviet Ambassadors extracted, January 1991.

Rwanda (Distant Runner): 230 civilians, April, 1994.

Liberia (Assured Response): 2200 civilians, April-June 1996.

Central African Republic (Quick Response): April 1996.

Albania (Silver Wake): 900 civilians, March-April 1997

COMMAND AND CONTROL

Executive Order 12656 assigns primary responsibility for safety of U.S. citizens abroad to the Secretary of State.

Department of State establishes and chairs the Washington Liaison Group (WLG) to oversee NEOs.

WLG membership consists of representatives from various government agencies. (DoS, DoD, CIA, DIA, DoT,

DHHS).

Function of WLG is to ensure national-level coordination of government agencies in effecting a NEO.

Chapter 21

NEO

363
WLG also serves as coordinator with Regional Liaison Groups (RLGs).

Chief of Diplomatic Mission or principal officer of the Department of State is the lead official in threat area

responsible for the evacuation of all U.S. noncombatants.

Chief of Mission will give order for the evacuation of civilian noncombatants, except for Defense Attaché System

personnel and DIA personnel.

Evacuation order of military personnel is given by CINC, but in reality the call is made by the Chief of Mission.

Chief of Mission is responsible for drafting evacuation plan (usually done by Regional Security Officer (RSO)).

Secretary of Defense plays a supporting role in planning for the protection, evacuation and repatriation of U.S.

citizens in threat areas.

Within Department of Defense, responsibility for NEO assigned under DoD Directive 3025.14.

DoD assigns members from service components and Joint Staff to WLG.

Department of the Army is executive agent for the repatriation of civilians following the evacuation. Accomplished

through establishment of Joint Reception Center (JRC)/Repatriation Processing Center.

CINCs

Prepare and maintain plans for the evacuation of noncombatants from their respective area of operations (AO).

Planning accomplished through liaison and cooperation with the Chiefs of Mission in the AO.

Assist in preparing local evacuation plan.

Rules of Engagement guidance for NEOs are found in Enclosure A of CJCS SROE.

Amendment to Executive Order 12656

An amendment to E.O. 12656 and a new Memorandum of Understanding between the Department of Defense and

the Department of State address the relative roles and responsibilities of the two departments in a NEO. The Department

of State retains ultimate responsibility for Noncombatant Evacuation Operations.

On 9 February 1998, the President amended Executive Order 12656 to state that the Defense Department is

responsible for the deployment and use of military forces for the protection of U.S. citizens and nationals and in

connection therewith, designated other persons or categories of persons, in support of their evacuation from threatened

areas overseas. The Executive Order states that the amendment was made in order to reflect the appropriate allocation

of funding responsibilities for NEOs. The E.O. refers to procedures to be developed jointly by the Secretary of Defense

and the Secretary of State in order to implement the amendment. DoS and DoD subsequently signed a memorandum of

understanding that addresses those procedures.

On 14 July 98, the Department of State and Department of Defense entered into a Memorandum of Understanding

(MOU) concerning their respective roles and responsibilities regarding the protection and evacuation of U.S. citizens and

nationals and designated other persons from threatened areas overseas.

DoS retains ultimate responsibility for NEOs, except that DoD has responsibility for a NEO from the U.S Naval Base

at Guantanamo. (Sections C.2. and C.3.b.)

Chapter 21

NEO

364
DoD also prepares and implements plans for the protection and evacuation of DoD noncombatants worldwide. In

appropriate circumstances, the Secretary of Defense may authorize the evacuation of DoD noncombatants, after

consultation with the Secretary of State. (Section C.3.c.)

Once the decision has been made to use military personnel and equipment to assist in the implementation of

emergency evacuation plans, the military commander is solely responsible for conducting the operations. However,

except to the extent delays in communication would make it impossible to do so, the military commander shall

conduct those operations in coordination with and under policies established by the Principal U.S. Diplomatic or

Consular Representative. (Section E.2.)

The MOU includes a Checklist for Increased Interagency Coordination in Crisis/Evacuation Situations and a

DoS/DoD Cost Responsibility Matrix with Definitions. Under the Matrix, DoS is responsible for Evacuation

Related Costs and DoD is responsible for Protection Related Costs.

LEGAL ISSUES INVOLVED IN NEOS

1. International Law. NEOs fall into three categories: permissive (where the host country or controlling factions allow

the departure of U.S. personnel), non-permissive (where the host country will not permit U.S. personnel to leave) and

uncertain (where the intent of the host country toward the departure of U.S. personnel is uncertain). The non-permissive

and uncertain categories raise the majority of legal issues because use of force becomes a factor.

Use of Force. Because non-permissive NEOs intrude into the territorial sovereignty of a nation, there must be a legal

basis. As a general rule, international law prohibits the threat or use of force against the territorial integrity or political

independence of any state. While there is no international consensus on the legal basis to use armed forces for the

purpose of NEOs, the most common bases are cited below:

Custom and Practice of Nations (pre-UN Charter) clearly allowed NEOsa nation could intervene to protect its

citizens located in other nations when those nations would not or could not protect them.

UN Charter

Article 2(4): Under this article, a nation may not threaten or use force against the territorial integrity or

political independence of any state . . . . One view (a minority view) holds that NEOs are of such a limited duration and

purpose that they dont rise to the level of force contemplated by article 2(4).

Article 51: U.S. position is that article 51s inherent right of individual or collective self-defense includes

the customary pre-charter practice of intervention to protect citizens. There is no international consensus on this position.

Sovereignty Issues. Planners need to know the territorial extent of the countries in the Area of Operations. Absent

consent, U.S. forces should respect the territorial boundaries of countries in the ingress and egress routes of the NEO.

Extent of territorial seas and airspace: Law of Sea allows claims of up to 12NM. Chicago Convention limits

state aircraft to international airspace or to domestic airspace with consent. There is a right of innocent passage through

the territorial seas. Innocent passage poses no threat to territorial integrity. Air space, however, is inviolable. There is no

right of innocent passage for aircraft. Only transit passage allows over-flight over international straits. See Chapter 7

of this Handbook for more information. Note that airspace and territorial sea boundaries are not a consideration for the

target nation of a non-permissive NEO.

Rights and duties of neutral states. Neighboring states may have concerns that permitting over-flight or staging

areas may cause them to lose their neutrality with the target state. To the extent that the concept of neutrality still

exists in international law, such action may jeopardize relations between the two countries. Establishing Safe havens,

however, does not violate neutrality concepts. A safe haven is a stopover point where evacuees are initially taken once

removed from danger. They are then taken to their ultimate destination.

Chapter 21

NEO

365
2. Status of Personnel. In NEOs, commanders will face a multitude of legal issues regarding the personnel

encountered on the ground.

Captured Combatants. Treatment (not Status) derives from Articles 2, 3, and 4 of the Third Geneva Convention.

U.S. policy is to treat all captured personnel as prisoners of war while in our custody, but to leave them in host nation

upon departure.

Civilians seeking refuge: Temporary Refuge v. Asylum.

U.S. Policy: DoD Directive 2000.11 sets out procedures for Asylum/Temporary Refuge. U.S. Commanders

may not grant political asylum to foreign nationals. Immigration and Naturalization Service, Department of Justice is

lead agency for granting asylum requests. U.S. Commanders may, however, offer temporary refuge in emergencies.

General policy: If applicant makes request at unit or installation located within territorial jurisdiction of a

foreign country (to include territorial waters), then:

Asylum may not be granted, but the request is forwarded via immediate message to ASD (International

Security Affairs) and applicant referred to appropriate diplomatic mission.

Temporary refuge will be granted (if requester is in imminent danger), ASD (ISA) informed, and

applicant will not be surrendered without Service Secretary approval.

If applicant makes request at unit, installation, or vessel in U.S. territorial waters or on the high seas, then the

applicant is received and request for asylum forwarded to DoJ. Do not surrender applicant to foreign power without

higher headquarters approval (MilDep level).

Status of U.S. Embassy Premises and the Grant of Diplomatic Asylum.

Usually a NEO will involve actions at the U.S. embassy or consulate. Therefore, it is important to understand the

special status of embassy property and the status of persons who request asylum on that property.

The status of the premises may depend on whether the mission is an embassy or a consul; whether the U.S. owns the

property or leases it; and whether the host country is a signatory to the Vienna Convention on Diplomatic Relations. If

the mission is an embassy, owned by the U.S. and in a foreign country that is a signatory - the premises are inviolable.

Even if these conditions are not met the premises are usually inviolable anyway due to reciprocal agreements with host

nations under the Foreign Missions Act. Diplomatic missions are in a foreign country only at the invitation of that

country. Most likely that nation will have a mission in the U.S. and thus enjoy a reciprocal relation of inviolability.

(Information from the Department of State Legal Counsels Office)

The Vienna Convention on Diplomatic Relations, April 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95. Article 22 The

premises of the [diplomatic] mission shall be inviolable. The agents of the receiving State may not enter them, except

with the consent of the head of mission.... the mission shall be immune from search, requisition, attachment or

execution.

The Foreign Missions Act (Pub. Law 88-885, State Department Basic Authorities Act of 1956 Title II, Sections 201-

213.) Establishes procedures for reciprocal agreements to provide for the inviolability of diplomatic missions.

Diplomatic Asylum. The grant of political asylum on embassy premises has been circumscribed little by little, and

many states have abandoned the practice, normally by issuing instructions to their diplomatic agents. Today the

extensive practice of the grant of diplomatic asylum appears to be restricted to missions in the Latin America republics.

(Gerhard von Glahn, Law Among Nations, 6th ed., 309)

DoD Inst. 2200.11. States in paragraph IV(B)(2)(a)(2) that persons who request political asylum in territories under

foreign jurisdiction will be advised to apply in person at the nearest American Embassy or Consulate, subject to the

Chapter 21

NEO

366
internal procedures published by the Chief of Missions. Requests for political asylum will be governed by the

appropriate instructions applicable to the diplomatic mission.

3. Law of War Considerations

Targeting. Rule of Thumb: follow targeting guidance of Hague Regulations, Geneva Conventions, and applicable

articles of the 1977 Protocols regardless of whether NEO is international armed conflict. Under CJCSI 5810.01 of 12

August 1996, U.S. armed forces will apply the principles of the law of war in military operations other than war. Use of

Force guidance for NEOs found in Enclosure G of the CJCS SROE (CJCSI 3121.01A).

Riot Control Agents (RCA). E.O. 11850 allows use of RCA in non-armed conflict and defensive situations, to

include rescue of hostages. But the Chemical Weapons Convention prohibits use of RCA as a method of warfare.

Whether use of RCA in a NEO is a method of warfare may depend on the circumstances of the NEO. However, under

E.O. 11850, Presidential approval is always required prior to RCA use, this approval may be delegated through the CINC.

Authorization to use RCA would normally be requested as a supplemental ROE under Enclosure J to the CJCS SROE.

Drafting ROE. Coordinate CINC forces ROE with ROE of Marine Security Guards (who work for DoS), Host

Nation Security, and Embassy Security. As always, ensure inherent right of self-defense is addressed adequately.

4. Search Issues.

Search of Evacuees Luggage and Person. Baggage will be kept to a minimum, and civilians will not be allowed to

retain weapons. In accordance with the Vienna Convention on Diplomatic Relations, the person and personal luggage of

diplomatic personnel are inviolable if the Diplomat is accredited to the U.S. (which would be rare in a NEO). Even if

they were accredited, luggage may be inspected if serious grounds exist to suspect that luggage is misused.

Accredited diplomatic bag retains absolute inviolability.

Force protection, however, is paramount. If a commander has a concern regarding the safety of aircraft, vessels,

ground transportation or evacuation force personnel due to the nature of the personnel being evacuated, he may order a

search of their person and belongings as a condition to evacuation. Diplomatic status is not a guarantee to use U.S.

transportation. If diplomat refuses to be searchedto include their diplomatic bag, CDR may refuse transportation.

Chapter 21

NEO

367
Ch

apter 21

NEO

368
CHAPTER 22

SPECIAL OPERATIONS

REFERENCES

1. 10 U.S.C. § 167, Unified Combatant Command for Special Operations Forces.

2. Legislative History, Sec. 1311, P.L. 99-661, 10 U.S.C. § 167.

3. 132 CONG. REC. S5971-05, 99

TH CONG. 2ND SESS. (May 15, 1986).

4. 10 U.S.C. §§ 371-382, Support to Law Enforcement.

5. 10 U.S.C. § 401, Humanitarian and Civic Assistance.

6. 10 U.S.C. § 2010, Combined Exercises.

7. 10 U.S.C. § 2011, Special Operations Forces: Training with Friendly Foreign Forces.

8. 18 U.S.C. § 1385, Posse Comitatus Act.

9. Executive Order 12333, U.S. Intelligence Activities.

10. Joint Publication 3-04, Joint Tactics, Techniques, and Procedures (JTTP) for Legal

Support to Military Operations (30 June 1998), Draft Copy.

11. Joint Publication 2-0, Doctrine for Intelligence Support to Joint Operations (5 May 1995).

12. Joint Publication 3-05, Doctrine for Joint Special Operations (17 April 1998).

13. Joint Publication 3-05.3, Joint Special Operations Operational Procedures (25 August

1993).

14. Joint Publication 3-05.5, Joint Special Operations Targeting and Mission Planning

Procedures (10 August 1993).

15. Joint Publication 3-07.1, JTTP For Foreign Internal Defense (26 June 1996).

16. Joint Publication 3-07.2, JTTP for Antiterrorism (25 June 1993).

17. Joint Publication, 3-53, Doctrine for Joint Psychological Operations (10 July 1996).

18. Joint Publication 3-57, Joint Doctrine for Civil-Military Operations (3 Feb 2001).

19. DoDD 2000.13, Civil Affairs (27 June 1994).

20. DoDD 2060.2, Department of Defense Counterproliferation Implementation (9 July

1996).

21. DoDD 2205.2, Humanitarian and Civic Assistance (6 October 1994).

22. DoDD 3305.6, Special Operations Forces Foreign Language Policy (4 January 1993).

23. DoDD 5111.10, Assistant Secretary of Defense for Special Operations and Low Intensity

Conflict (22 March 1995).

24. DoD, Special Operations Forces, Posture Statement (1998).

25. FM 100-5, Operations (14 June 1993).

26. FM 31-20, Doctrine For Special Forces Operations (20 April 1990).

27. FM 31-20-3, Foreign Internal Defense Tactics, Techniques, and Procedures For Special

Forces (20 September 1994).

28. FM 31-20-5, Special Reconnaissance Tactics, Techniques, and Procedures For Special

Forces (23 March 1993).

29. FM 33-1, Psychological Operations (18 February 1993).

30. FM 33-1-1, Psychological Operations Techniques and Procedures (5 May 1994).

31. FM 41-10, Civil Affairs Operations (14 February 2000).

32. AR 381-10, U.S. Army Intelligence Activities.

33. Colonel Charlie A. Beckwith, DELTA FORCE (1983).

34. John M. Collins, SPECIAL OPERATIONS FORCES (National Univ. Press 1994).

35. Susan L. Marquis, UNCONVENTIONAL WARFARE: REBUILDING U.S. SPECIAL OPERATIONS

FORCES (Brookings Institute 1997).

36. Douglas C. Waller, THE COMMANDOS (1994).

37. Rescue Mission Report, August 1980. (Generally known as the Holloway Commission, a

group of distinguished retired flag officers commissioned by the Joint Chiefs of Staff

examined the Iranian Hostage Rescue Attempt.).

Chapter 22

Special Operations

369
INTRODUCTION

Special Operations (SO) are characterized by the use of small units involved in direct and indirect military activities

that are generally of an operational or strategic objective. These missions may be conducted in time of war or peace.

Special Operations Forces (SOF) involvement in an operation normally begins before the introduction of conventional

troops and ceases long after conventional forces have left the theater. SOF are generally regionally focused and SOF

personnel typically posses the language skills, cultural familiarity and maturity necessary to participate in the often times

politically sensitive SO. SO are inherently joint and differ from conventional operations in degree of risk, operational

techniques, modes of employment, independence from friendly support and dependence on detailed operational

intelligence and indigenous assets.

It should be apparent to the judge advocate supporting SOF that the legal risks associated with SO are often

commensurate with the operational risks. High adventure SO missions are legally intensive operations. Judge

advocates assigned to SOF must be familiar with a wide variety of laws and regulations relevant to SO. Moreover, SOF

is an army within an army. It has its own culture, with accompanying acronyms, tactics, traditions, unique planning

techniques, unit configurations, and command structure.

HISTORY

Special Operations Forces in the United States enjoy a long and illustrious tradition. Time and time again, SOF have

contributed to the overall accomplishment of our nations political and military objectives in ways that far exceed its

organic assets. This ability to perform at this exceptionally professional level can largely be attributed to the nature of

SOF missions, the highly trained, skilled and motivated operators in SOF, and specialized equipment.

In respect for the SO skills of the early native Americans, the U.S. Army Special Operations Command (USASOC)

and the U.S. Army Special Forces unit patches are in the shape of an arrowhead. The Special Forces branch insignia

consists of two crossed arrows, representing the craft and stealth of the early American warriors. Numerous Indian

Scouts distinguished themselves on the battlefield and earned the Congressional Medals of Honor.

During the French and Indian War, Major Robert Rogers successfully lead a group of early American unconventional

warriors, known as Rogers Rangers. His techniques and maxims are studied today by modern SOF personnel. During

colonial times, Francis Marion, the Swamp Fox, conducted significant guerrilla raids on British forces stationed in

South Carolina. In the American Civil War, Colonel John Singleton Mosby of Virginia organized a force of 300

volunteers to operate behind enemy lines. COL Mosbys Confederate raiders cut off Union Army lines of

communications, destroyed logistics and replacement trains and Union headquarters.

Modern SOF trace their origin to World War II. At the outset of hostilities, a New York Wall Street attorney by the

name of William Wild Bill Donovan approached his long time friend, President Roosevelt, with a proposition. William

Donovan, a Congressional Medal of Honor winner from World War I, was convinced that a small organization of highly

trained and motivated individuals would be very successful at the strategic level. The President agreed and the Office of

Coordinator of Information (COI) was established with COL Donovan at the helm. In June of 1942, the COI became the

Office of Strategic Services (OSS) and participated in sabotage, espionage, subversion, unconventional warfare and

propaganda against both Japanese and German forces. The OSS was the forerunner to both the U.S. Army Special Forces

and the U.S. Central Intelligence Agency.

In addition to the OSS, the 1st Special Service Force, the Devils Brigade, was formed as a combined Canadian and

U.S. special warfare unit. The name Special Service Force was an attempt to conceal the combatant nature of the unit.

With its name and red guidon, the unit tried to pass itself off as an organization involved in service and support

operations. However, the cover did not last long. They were deeply feared by the Germans. The USASOC red unit

patch of today is a replica of the 1

st Special Service Force insignia.

Similar to the U.S. Army, modern Naval Special Warfare (NAVSPECWAR) finds it genesis in the SO of World War

II. Scouts and Raider teams were formed to guide Marines and soldiers ashore during amphibious landings. The Chief of

Naval Operations formed the first Underwater Demolitions Teams (UDT) in 1943. UDT were to clear manmade and

Chapter 22

Special Operations

370
natural obstacles from the shoreline before amphibious operations. In the European theater, UDT members approached

obstacles from small canoe-like boats rather than by swimming. As a result of the successes in Europe, UDTs were

formed in the Pacific as well. However, the Pacific UDTs approached their target by swimming. The first of these teams

were known as the naked warriors because of their lack of equipment. The earliest teams did not even use fins.

UDT were primarily involved in shoreline reconnaissance and demolition and operated during daylight hours under

the cover of Naval Gunfire. The NAVSPECWAR commando missions evolved primarily from the OSS. In fact, it was

an Army Lieutenant assigned to OSS who designed the very successful Lambertson Amphibious Respiratory Unit

(LARU), a closed circuit breathing apparatus. OSS swimmers were used to mine enemy ships and to support undercover

operations on shore.

Air Force Special Operations (AFSOC) Forces also trace their lineage to World War II. The U.S. Army Air Corps 1

st

Air Commando Group, Project 9, under the command of General Henry Hap Arnold served in Burma. The 1

st Air

Commando Group was used to reopen the Burma Road. The 801

st Bombardment Group, Carpetbaggers operated in

Europe. The 801st dropped OSS Jedburgh teams, intelligence agents, guerrilla warfare teams, supplies, weapons, and

munitions to French resistance groups behind enemy lines.

As a general rule however, SOF was downsized following World War II at a rate higher than that of conventional

forces. The OSS was disbanded after World War II. The U.S. Army organized its first Special Forces Group, the 10th

Special Forces Group, in 1952. COL Aaron Bank was the Groups first commander. He had been an OSS operative in

World War II. In 1953, the 77

th Special Forces Group was established and began conducting Mobile Training Team

missions into Southeast Asia. Naval Special Warfare all but disappeared after World War II. However, there were a few

significant SO during the Korean War. Notably, the heroic small unit activities of U.S. Navy Lieutenant Eugene Clark

and his men prior to the Inchon invasion serve as an example of the value of SO. There were some USAF SO in the

Korean War as well.

After the Bay of Pigs incident, President Kennedy determined that the United States needed an ability to project

flexible military force into situations that were short of war. He directed DoD to expand its unconventional warfare

capabilities. UDT were reborn, and the President personally established the Green Beret as the official headgear of the

U.S. Army Special Forces. The commander of UDT-21, Bill Hamilton was selected to head up the newly formed U.S.

Navy SEAL team. SEAL is an acronym that stands for Sea, Air And Land. SEALS not only conduct hydrographic

reconnaissance missions like UDT, but have become involved in special warfare activities inland as well.

The acts of courage displayed during the Vietnam war by SOF are legendary. The American people became

enamored with SOF and their capabilities and exploits were celebrated in movies and songs. The war in Southeast Asia

seemed particularly suited for SOF. Because of this, some historians suggest that the blame for the failure of American

efforts in Vietnam was placed on SOF more so than perhaps other units. There was, according to some, a distrust and

dislike for SOF by the conventional military establishment. Once again, the military experienced a significant drawdown

after the war, but the reductions in SOF were even higher than with conventional units. Being a member of SOF was not

generally career enhancing for military officers.

In 1979, SOF was once again in the spotlight as a result of the failed hostage rescue attempt that became known as

Desert One. When the U.S. Embassy in Iran was taken over by radical students, President Carter ordered the formation of

an SO Task Force to attempt to rescue the American hostages being held in the embassy. A team of Army commandos,

lead by U.S. Army COL Charlie Beckwith, were to be carried to a site near the embassy by Navy H-53 Minesweepers,

commanded by a Marine. Once the hostages were rescued, these same helicopters were to be used to evacuate the

rescued hostages and commandos after the assault on the embassy.

On the fateful night of the operation, eight helicopters left the deck of the USS NIMITZ carrying the commandos. In

route, the Task Force hit a dust storm. One helicopter was forced to land because of engine trouble. One lost its ability to

navigate because of equipment failure and had to turn back. The plan called for the helicopters to refuel at a site in the

desert known as Desert One. Tragically, one of the helicopters collided with a USAF C-130 refueling aircraft at the

refueling site. Both the plane and helicopter burst into flames, killing and injuring several task force members. The

mission had now reached one of its abort criteria. The Task Force was down to five helicopters, and at least six were

needed to be able to effectively evacuate the commandos and hostages.

Chapter 22

Special Operations

371
After Desert One, the Holloway Commission was established to examine the incident. Admiral Holloway and his

commission determined that SOF was an appropriate response for several reasons. Since the mission was a humanitarian

rescue attempt rather than an aggressive military operation, the use of a small SOF was more consistent with the stated

purpose. The use of a large conventional force would have appeared more like an aggressive act of war rather than a

purely humanitarian rescue operation. The use of conventional forces would have arguably caused more U.S. and Iranian

casualties. Although the commission supported the decision to use SOF, it identified several crucial causes of mission

failure.

These problems were generally related to command and control and the possible over-concern with operational

security (OPSEC). The helicopter squadron was commanded by a Marine Corps Lieutenant Colonel. However, an Air

Force General Officer had also been assigned to the Task Force because of his extensive knowledge of Iran. There were

some disputes over who was actually in charge of the air portion of the operation. Because OPSEC was critical, the

operation was compartmentalized. Most of the operators only know their part in the operation. In the event of

compromise, compartmentalization limits the amount of information that makes it into enemy hands. OPSEC was so

tight there was no rehearsal before the mission. Because there was no apparent compromise, the OPSEC activities appear

to have worked. However, OPSEC made it very difficult to properly coordinate all the moving parts from each separate

service.

The commission recommended the creation of a SOF advisory panel and a standing JTF for counterterrorism. The

commission believed that if a standing counterterrorism JTF were established, it could be manned with a core of highly

trained individuals who would trust each other and work well together. This would facilitate the integration and

synchronization of joint SOF and would allow detailed planning without OPSEC concerns. The commission did not

condemn the operators for their concern with OPSEC. After all, it appears that the Iranians had no idea the Commandos

were coming, and OPSEC therefore worked. The mission was so sensitive, OPSEC was paramount. However, with a

standing JTF, the seemingly competing values of OPSEC and coordination could both be preserved without the expense

of the other.

In the mid-eighties, some in Congress became concerned that DoD had not implemented much of the Holloway

Commission report. There was a perception by some in Congress that absent Congressional involvement, conventional

commanders and civilian leaders in DoD would never bring SOF up to the level it needed to be. Some in Congress

advocated the establishment of a sixth service, a new SOF branch of the military. However, most believed a better plan

was to put together a joint special operations command using the training and recruiting base of the branches of service

already in being. As a result, in 1986, Congress passed Public Law 99-661, the Nunn-Cohen Amendment, codified at 10

U.S.C. § 167. The U.S. Special Operations Command was now a reality.

SOF COMMAND STRUCTURE

As a result of 10 U.S.C. § 167, the United States Special Operations Command (USSOCOM) was established. This

CINC is unique in that it is the only CINC specifically established by Congress and required by law. DoD could, for

example, do away with the Atlantic Command and reorganize its sub-component units. However, DoD does not have the

authority to disband USSOCOM. However, Congress realized that if it created a CINCSOC without a separate funding

authority, DoD would continue to have tremendous control and the ability to drawdown SOF assets simply by refusing to

fund its programs. Therefore, an entirely new budgetary authority, Major Force Program Eleven (MFP-11), was

established to fund SOF. Some have observed that USSOCOM is the only CINC with his own checkbook. This is

important for SOF because MFP-11 funds may only be used for articles and programs with an SO basis or nexus.

USSOCOM is both a supporting and supported command. It is a supporting command in that it is responsible for

providing ready and trained SOF to the geographic CINCs. It is a supported command in that when directed by the

National Command Authority (NCA), it must be capable of conducting selected SO of a strategic nature under its own

command. USSOCOM is commanded by a General and is located at MacDill Air Force Base in Tampa, Florida.

10 U.S.C. § 167(i) explains that SOF are those units which are:

1. Listed in the Joint Capabilities Plan, Annex X (17 Dec 85);

Chapter 22

Special Operations

372
2. Listed in the Terms of Reference and Conceptual Plan for the Joint Special Operations Command (1 Apr 1986);

or

3. Forces designated by the Secretary of Defense (SECDEF).

Each service in turn has its own specific SO command. For the Army, it is the U.S. Army Special Operations

Command (USASOC), commanded by a Lieutenant General, at Fort Bragg, NC. The Naval SO command is referred to

as the Naval Special Warfare Command (NAVSPECWAR), with a Rear Admiral in charge at Coronado, CA. The U.S.

Air Force Special Operations Command (AFSOC) is located at Hurlburt Field, FL and led by a Lieutenant General. These

service specific SO commands are responsible for selecting, training and equipping the force. They are also responsible

for SO doctrine within their respective services. In the U.S. Army, USASOC is a Major Command (MACOM) and

therefore, U.S. Army SOF (ARSOF) is not within the FORSCOM chain of command.

There is also a Joint Special Operations Command (JSOC), a sub-unified command of USSOCOM, which is located

at Fort Bragg, NC. This is a joint command which studies special operations requirements and techniques, ensures

interoperability and equipment standardization, plans and conducts joint special operations exercises and training, and

develops joint special operations tactics.

There are no standing Marine Corps SOF. Marine Corps units are not listed in either of the two SOF designation

documents cited in 10 U.S.C. § 167(i). Neither DoD nor the Marine Corps have sought to amend those documents,

although both have had the opportunity. There are however certain units of the Marine Corps, along with particular

conventional elements of the U.S. Navy and U.S. Air Force, that have been designated special operations capable.

Special operations capable units are from time to time designated as SOF by SECDEF for specific operations. Many

Marine Corps units perform and train to perform special operations type missions. The expeditionary nature of the

Marine Corps makes it particularly well suited as a special operations capable force.

U.S. Army Special Operations Forces (ARSOF) include active duty, Army National Guard (ARNG) and U.S. Army

Reserve elements. There are five active and two ARNG Special Forces (SF) groups (SFG). SF are often referred to in

literature and by the public as the Green Berets because of their distinctive headgear. These SFG are under the

command of the U.S. Army Special Forces Command Airborne (USASFC(A)), a sub-command of USASOC, also

located at Fort Bragg, NC. USASFC(A) is commanded by a Major General, while each SFG is lead by a Colonel. Each

of the active SFG has a geographical orientation. SF soldiers study the language and culture of the countries within their

area of operations (AOR), and receive training in a variety of individual skills and special skills. These skills include

operations, intelligence, communications, medical aid, engineering and weapons. SF soldiers are highly skilled operators,

trainers and teachers. Not only must they be capable of performing difficult military missions; they must also be able to

teach these skills to foreign militaries and domestic agencies as well.

The Ranger Regiment, commanded by a Colonel, and its three battalions are also ARSOF. Regimental headquarters,

along with one battalion, are at Fort Benning, GA. One other battalion is located at Hunter Army Airfield in Georgia, and

the final battalion is stationed at Fort Lewis, WA. Members of the Regiment wear the black beret and make up a highly

responsive strike force. Ranger units are specialized airborne infantry troops that conduct special missions in support of

U.S. national security polices and objectives.

The 160th Special Operations Aviation Regiment, commanded by a Colonel and located at Fort Campbell, KY,

provides special aviation support to ARSOF, using specialized aircraft and highly trained personnel. The Civil

Affairs/Psychological Operations Command (USACAPOC) is based at Fort Bragg, NC. There are three reserve CA

commands, with nine reserve CA brigades. There is one active and two reserve PSYOPS groups. CA units support the

commanders relationship with civil authorities and the civilian population by promoting mission legitimacy. PSYOPS

units support operations across the operational continuum to induce or reinforce attitudes and behaviors favorable to the

U.S.. The John F. Kennedy Special Warfare Center and School is responsible for training leader development, and

doctrine. A Major General commands this Fort Bragg special operations university. There are also various support

commands within USASOC such as the Special Operations Support Command (SOSCOM) and the Special Operations

Chemical Reconnaissance Detachment (CRD).

Because, within ARSOF, SF is the largest piece, has the most judge advocates assigned, and because an SFG is

unique in terms of organization, a brief description of an SFG will follow. The group is commanded by a Colonel, with a

Chapter 22

Special Operations

373
Lieutenant Colonel Deputy Commanding Officer (DCO), a Lieutenant Colonel executive officer (XO) and a Command

Sergeant Major (CSM) forming the remainder of the command group. The staff is similar to that of a separate infantry

brigade. There are three battalions, each commanded by a Lieutenant Colonel, a Group Support Company (GSC), led by

a Major, and a Headquarters and Headquarters Company (HHC) commanded by a Captain. There are several

detachments and sections within the GSC such as the Military Intelligence Detachment (MI DET), Signal Detachment

(SIG DET), Service Detachment (SVC DET) and the rigger section. Each of these detachments are typically commanded

by a Captain and usually have company grade UCMJ authority.

Each battalion has a Major XO and a CSM, along with the traditional battalion staff. There are three operational

companies, a battalion support company and a battalion headquarters detachment within the battalion. A SF operational

company command is a Major position and the company has a SGM rather than a 1st Sergeant. The company

Headquarters Detachment is often referred to as a Special Forces Operational Detachment C (SFOD C). The

operational companies have headquarters detachments (SFOD B). The operational companies are further broken down

into operational teams, known as A teams or SFOD As. An A team is commanded by a Captain and the XO is a

warrant officer. The team sergeant, or operations sergeant, is a Master Sergeant. There are nine other enlisted members

broken down by MOS. The junior member is usually at least a Sergeant E-5 on an SFOD A. As a general rule, SFOD A

commanders do not have UCMJ jurisdiction over team members because it has been withheld at the company level.

USASOC, USASFC(A) and USACAPOC have Offices of Staff Judge Advocates. Each SFG, the Ranger Regiment,

PSYOPS Group, CA command, and the John F. Kennedy Special Warfare Center and School have command judge

advocates.

COMMAND AND CONTROL DURING OPERATIONS

As noted above, SO are inherently joint. SOF assigned in a theater are under the combatant command (COCOM) of

the geographic CINC. Moreover, because USSOCOM and its Army sub-component are supporting commands, in most

instances, when SOF deploy overseas, they are under the operational control (OPCON) of the combatant command for the

geographic area in which they are operating. Further, each warfighting CINC has a Special Operations Command (SOC).

SOF in theater are under the operational control (OPCON) of the SOC. For example, the Special Operations Command

for the Commander and Chief of the Pacific is referred to as SOCPAC. Usually these SOCs are commanded by a one star

General or Admiral. Recently, judge advocates have been assigned to some of these SOCs.

In an operation, the SOC may order the establishment of a Joint Special Operations Task Force (JSOTF). Generally

speaking, the JSOTF commander will either be the SOC or the service SOF with the largest presence in the AOR. A

JSOTF is a temporary joint SOF headquarters established to control more than one service specific SOF or to accomplish

a specific mission. If augmented by foreign units, the designation becomes Combined Joint Special Operations Task

Force or a Combined Unconventional Warfare Task Force (CUWTF). In order to synchronize SO with land and maritime

operations with conventional units, a Special Operations Command and Control Element (SOCCE) is often established.

It collocates with the supported conventional forces. The SOCCE can receive operational, intelligence, and target

acquisition reports directly from deployed SOF and provides them to the supported component. The Special Operations

Coordination Element (SOCOORD) is the primary SOF advisor to an Army corps or Marine Expeditionary Force (MEF)

with regard to SOF integration. The SOCOORD normally is a staff element within the G3 or J3 staff section.

As a general rule, military justice jurisdiction continues to reside with the parent supporting unit even while

deployed. USASOC and USASFC(A) are General Courts-Martial Convening Authorities for Fort Bragg units. However,

ARSOF not located at Fort Bragg depend on the installation commanders for the installations on which they are tenants

for GCMCA support. This can cause some tension between the servicing GCMCA and the SOF command. The

installation commander is responsible for maintaining good order and discipline on the installation, she is not however

responsible for the success or failure of the missions conducted by SOF tenants. This may cause friction between the post

commander and tenant SOF.

Consequently, more than one chain-of-command or criminal jurisdiction will have an interest in discipline issues

that take place, especially overseas. For example, if an SF soldier from the 1st SFG at Fort Lewis, WA, commits an

offense while TDY on Kadena AFB in Okinawa, SOCPAC, USARJ, the AFB Commander, the Fort Lewis Installation

Commander (GCMCA), and the technical chain running from 1

st SFG to USASFC(A) and USASOC at Fort Bragg may

all have an interest in the outcome. The SOF judge advocate must be extremely wary of the potential for command

Chapter 22

Special Operations

374
influence in situations where serious incidents occur overseas because of this multi-command interest. Although it is

questionable whether unlawful command influence can be brought to bear from commands outside the chain, technical

chains of command do have the potential to significantly influence the independent individual judgment of a soldiers

actual commander. Intense coordination with the respective unit judge advocates is the best tact to take in resolving these

issues.

SOF units may deploy as an entire unit, or, as is more likely the case, by smaller detachments to support various

missions in the warfighting CINCs area. Because SFGs are often the lead ARSOF in a theater and because in combat

they are configured differently than conventional units, a brief introduction as to how a SFG is configured for operations

may be helpful. Additionally, it is important for SOF judge advocates to understand the basic composition of the SFG

during operations because the Group Commander may become the JSOTF or ARSOTF commander.

If an entire SFG, or part of the SFG and the Group headquarters deploys, it will establish a Special Forces

Operational Base (SFOB). Each SF battalion will in turn establish Forward Operational Bases (FOB). The SFOB and the

FOBs will have an Operations Center (OPCEN), which functions much like a main CP at the brigade or division. The

SFOB and FOB will also have a Support Center (SUPCEN) and a Signal Center (SIGCEN). Future operations are

planned and current operations are controlled at the OPCEN. The current and future operations are sustained at the

SUPCEN. SO require extremely sophisticated and redundant communications systems, thus the need for a SIGCEN.

Doctrine places the judge advocate in the SUPCEN with the S-1 and S-4. However, a judge advocate can be far more

effective at the OPCEN. The commander may be willing to move the GJA to the OPCEN.

The FOB will also have an Isolation Facility (ISOFAC). Once an SFOD-A, A Team, receives a mission, it isolates

from the rest of the unit. The team begins to plan, train and rehearse for the mission, outside the view of the outside

world. The ISOFAC is where the teams isolate. Several teams can isolate simultaneously in the ISOFAC, with each

team having its own team room. No one can enter the ISOFAC without one of the isolating teams permission. It is,

however, during isolation that legal briefings to the teams are critical. The key to getting into the ISOFAC is often the

relationship the judge advocate has with the team prior to deployment. If the judge advocate has provided competent

legal advice in the past or has participated in activities with the team out of the legal office such as airborne operations,

the team may be quicker to allow the judge advocate to meet with them. The teams are very closed, tight knit societies;

even the battalion and group commanders are often looked at as outsiders by the teams.

The judge advocate must make sure to be present in the ISOFAC for the briefback. Just prior to final rehearsals,

the team will conduct a briefback with the battalion and sometimes group commander. During the briefback, the team

will explain the concept of their operation in detail. Every member of the team will be present and participate. During

the briefback, the team obtains the commanders approval or disapproval or modifications to its plan. This is the last

opportunity the GJA will likely have to review the operation and provide input. Once the mission is complete and the

teams return from the operation, they return to the ISOFAC and they remain in isolation until they are debriefed. As

part of the debrief with the S2, the team will review everything it did and the team members saw or heard, including

potential law of war or human rights violations by either side. The Group judge advocate should obviously be present for

debriefs as well.

During the day to day SOF routine operations, the parent unit will remain at home station. The teams will deploy

from home station to conduct their missions independent of the SOF chain of command. Command and control is

maintained through sophisticated communications. Not only are the teams often separated from home station by

thousands of miles, there are numerous simultaneous overseas operations being conducted from the home station. It is

not the least bit unusual for a SFG to have teams in more than 15 different countries at once. It is obviously impossible

for the GJA to be with them on all deployments. The various teams deployed may be generating numbers of legal issues

without even realizing it.

To prevent legal catastrophes, the judge advocate must learn to create a virtual presence with the deployed

detachments. This is accomplished primarily by religiously monitoring message traffic at group and battalion

headquarters and by fostering a willingness on the teams part to phone home at the first sign of trouble by building trust

and confidence prior to deployment. Second, intense planning, training and briefings must take place before each and

every mission so the team understands the potential legal issues. Third, the Group and Battalion staffs must be trained to

recognize legal issues. Finally, the GJA has no choice but to rely on his or her NCOs. Group Legal NCOs must be

Chapter 22

Special Operations

375
highly skilled and motivated individuals. There are more missions than the judge advocate alone can support without

significant assistance. SOF legal NCOs must be capable of conducting training and legal briefs to deploying teams.

SPECIAL OPERATIONS MISSIONS

Direct Action (DA).

These are short duration strikes and other small-scale offensive operations. For example, raids, ambushes, terminal

guidance operations, recovery operations, and mine warfare are some of the missions considered to be direct actions. For

the judge advocate, such a mission must be reviewed for potential law of war and policy violations. As with conventional

operations, all of the law of war relating to the use of force, targeting, chemical weapons, non-combatants, and principals

such as distinction, military necessity, proportionality and unnecessary suffering applies to SOF missions. Policy

limitations, usually expressed through the Rules of Engagement, also have significant impact on DA as well as other SOF

activities. A SOF judge advocate must have at a minimum, a copy of FM 27-10, The Law of War; DA Pam 27-1,

Treaties Governing Land Warfare; DA Pam 27-1-1, Protocols to the Geneva Conventions; DoD Dir. 5100.77, Law of

War Program; CJCSI 5810.01, Implementation of the Law of War Program; and CJCSI 3121.01A, Standing Rules of

Engagement (an unclassified version appears in Chapter 5 of this Handbook).

An issue that routinely arises in these areas is that the mission specific ROE do not always keep pace with mission

changes. It is not unusual for SOF to receive a mission that is inconsistent with the mission specific ROE. One way to

handle this disconnect is to immediately ask for an ROE supplemental. At the same time, send message traffic to higher

headquarters indicating that the mission appears to be inconsistent with the ROE and that the subordinate unit assumes

that inherent in the order to perform the mission is the authority to amend the ROE for the specific mission.

Special Reconnaissance (SR).

These are recon or surveillance actions conducted to obtain or verify, by visual observation or other collection

methods, information concerning the capabilities, intentions and activities of an actual or potential enemy. SR may also

be used to collect data concerning the meteorological, hydrographic, or geographic characteristics of a particular area. SR

may include environmental recon, armed recon, target and threat assessment. There are numerous laws and regulations

that regulate intelligence activities, many of which may impact on SR. (see Chapter 15). SOF judge advocates must be

thoroughly familiar with E.O. 12333, U.S. Intelligence Activities, and AR 381-10, U.S. Army Intelligence Activities.

They should also have access to DoD Dir. 5240.1, DoD Intelligence Activities; DoD Reg. 5240.1R, Procedures

Governing the Activities of DoD Intelligence Components that Affect United States Persons; AR 381-20, The Army

Counterintelligence Program; AR 381-102 (S), Cover and Cover Support (U). A tremendous resource in the area of

HUMINT operations is the Defense Intelligence Agency, Intelligence Law Handbook.

In terms of the law, SOF soldiers are generally most concerned about compromise by a non-combatant during SR.

There is no SF exception to the LOW. Therefore, compromise alone does not provide grounds to kill a non-combatant. It

would be permissible to capture and detain such a person, to evacuate with the non-combatant, or to temporarily

incapacitate the individual. If however, the person is incapacitated, he or she should be left in a location where they can

be discovered or eventually recover and return to where they came. From a practical standpoint, even if the noncombatant were killed to avoid detection, especially if it is a child, compromise will likely take place as search parties are

formed to look for the missing person.

Foreign Internal Defense (FID).

SOF are routinely called upon to organize, train, advise, and assist host nation (HN) military and paramilitary forces.

The goal in FID is to enable HN forces to maintain their own internal security. There are numerous legal issues related to

FID. One of the most important is the status of SOF personnel and units. Although this is always an issue in operations,

it is particularly acute in FID. Because the force is there with HN consent, HN law is, as a general rule, fully applicable.

The judge advocate must be familiar with any Status of Forces Agreements or Status of Mission Agreements that may be

applicable. In any given mission, there may be agreements short of SOFAs, such as Diplomatic Notes, on point. It is not

always easy to locate all the relevant international documents impacting a mission. The judge advocate may start by

researching DoS publications such as Treaties in Force. Judge advocates should contact the relevant CINCs legal office.

Chapter 22

Special Operations

376
The Defense Attaché or Military Assistance Group at the embassy may have access to HN agreements. DAIO may have

international agreements relating to the HN on file. CLAMO maintains many SOFAs on JAGCNet.

The second most important issue in FID is Fiscal Law. A SOF judge advocate must understand how military

operations are funded. In the area of FID, SOF judge advocates must fully understand 10 U.S.C. § 2011, Training with

Friendly Foreign Forces, and 10 U.S.C. § 2010, Combined Exercises. The judge advocate should also know of other

potential means of funding the training of foreign forces, such as 10 U.S.C. § 166a, CINC Initiative Funds, 10 U.S.C. §

168, Mil to Mil Contacts, 10 U.S.C. § 1050, Latin American Cooperation, 10 U.S.C. § 1051, Bilateral or Regional

Cooperation Programs, and, Small Unit Exchange Agreements as outlined in AR 12-15. (See Chapters 12 and 14.)

a. Combined Exercises as part of FID.

SOF spend significant time practicing their wartime missions through exercises with host country armed

forces overseas. 10 U.S.C. § 2010 allows U.S. forces to pay the incremental costs of conducting training with soldiers

from a developing country. To comply with the law the combined training should be 1) undertaken primarily to enhance

the security interests of the United States, and 2) the participation of the developing country is necessary to achieve the

fundamental objectives of the training exercise. The mission planning documents should clearly reflect these statutory

requirements. Combined exercises afford SOF with an excellent opportunity to train in regions of the world to which

they are slated to deploy in real world situations. The judge advocate must be aware of the jurisdictional status of U.S.

forces while in the host country. A SOFA may exist between the U.S. and the host country that establishes jurisdiction.

If not, the judge advocate should either seek to obtain one or some other diplomatic resolution to HN jurisdiction. The

judge advocate should work through the SOC or CINC legal office or through the military attaché or MILGROUP at the

U.S. Embassy in the relevant country.

b. The Special Forces Exception as part of FID.

In recognition of the need for SOF to train others in order to train itself to accomplish its FID and

unconventional warfare missions, Congress granted to SOF an exception to the rule that O&M funds cannot be used in

the training of foreign forces. Under 10 U.S.C. § 2011, the Special Forces Exception, SOF are authorized to expend

O&M funds for the costs of training itself and for incremental costs of the foreign military it trains. The primary

purpose of the training for which payment may be made  shall be to train the special operations forces of the combatant

command. 10 U.S.C. § 2011(b). Under 10 U.S.C. § 167(e)(2)(c) the Commander of U.S. Special Operations Command

(CINCSOC) has the responsibility for exercising direction, authority and control over the expenditure of funds for SOF

training. Therefore, spending SOF O&M funds (termed MFP-11 funds) will take place with coordination with the normal

CJCS execute order process in conjunction with USSOCOM. The focus of such a mission must be on training SOF and

not training the HN military forces.

The purpose of the SOF exception is to enhance the ability of CINCSOC to prepare special operations

forces to carry out assigned missions by clarifying his authority to program and expend funds to train SOF in the U.S.,

its possessions and territories, and overseas. It also assists the commander of other unified combatant commands to fulfill

their responsibilities for ensuring the preparedness of their forces to carry out assigned missions, among which is dealing

with low-intensity conflict environments. Unlike conventional forces, the successful accomplishment of many types of

SOF activities is dependent upon language capability and a thorough understanding of national and/or ethnic

backgrounds, cultures, social norms, and customs. These specialized forces must develop and maintain their knowledge

and understanding of the nations in which they operate. This training in peacetime facilitates the ability to work with

indigenous forces in armed conflict as well. This is particularly true in view of their role as force multipliers, i.e., trainers

of indigenous forces in foreign internal defense and unconventional warfare scenarios.

Unconventional Warfare (UW).

This activity covers a broad spectrum of military and paramilitary operations. It generally entails SOF leading or

training a non-state paramilitary organization in combat operations. UW may involve operations with friendly indigenous

personnel that are of a long duration. SOF involved in UW may participate in guerrilla warfare, subversion, sabotage, and

support to escape and evasion networks. A thorough knowledge of the law of war is crucial in this area, especially

international law relating to status. Specifically, Articles 2 and 4 of the 1949 Geneva Convention Relative to the

Treatment of Prisoners of War (GPW) and Articles 43 through 47 of Protocol I to the Geneva Conventions (GPI). These

Chapter 22

Special Operations

377
articles explain when the GPW and GPI are triggered and what is required of an individual in order to be treated as a

POW upon capture.

POW status is a critical legal term of art because if captured, all of the requirements of status must be met in order for

an individual to be entitled to the protections of this body of international law. The two primary benefits of status are that

a POW is not longer a legitimate target, and the POW is entitled to immunity from prosecution for pre-capture warlike

acts. As a general rule, the GPW and GPI are triggered if there is an international armed conflict. That is, an armed

conflict between two state parties. If these treaties are triggered, a person is entitled to status as a POW only if she

conducted herself in such a manner as to be distinguishable from the civilian population before capture. She must either

have been a member of the armed forces of one of the parties or she must be a member of a militia or resistance

movement belonging to a party to the conflict. Moreover, among other requirements, one seeking POW status must wear

fixed insignia recognizable from a distance. They must also carry their weapons openly. GPI only requires that

combatants in an international armed conflict carry their weapons openly in the attack and be commanded by a

responsible person. There is no requirement for wearing insignia recognizable at a distance for example. The United

States is not a party to GPI, and objects to this difference because it makes it difficult to distinguish civilians from

combatants. However, the SOF judge advocate must know how status is achieved in GPI. The judge advocate will have

to understand how enemy nations will view the status of captured U.S. SOF operatives and UW assets. The judge

advocate will also need to understand how ally signatories apply status.

The SOF judge advocate should also consider what, if any, criminal jurisdiction the U.S. commander might have

over the members of a U.S. led militia. A central issue will be whether it is a time of war for the purposes of UCMJ,

R.C.M. 103(19). This is critical because court-marital jurisdiction exists over persons serving with or accompanying the

force during time of war. UCMJ, Art. 2a(10).

Combating Terrorism.

This includes both antiterrorism (AT), defensive measures to reduce vulnerability to terrorist acts, and

counterterrorism (CT), offensive measures taken to prevent, deter, and respond to terrorism. When directed by the NCA,

SOF may be involved in the recovery of hostages or sensitive material from terrorists; attack of terrorist infrastructure;

reduction of vulnerability to terrorism. While AT is within the realm of most SOF, CT is generally the province of

Special Mission Units (SMU) and beyond the scope of this Handbook. (See Chapter 18, Combating Terrorism, of this

Handbook.)

Psychological Operations (PSYOPS).

The purpose of PYSOPS is to induce or reinforce foreign attitudes and behaviors. This may occur at the strategic,

operational and tactical level. The overall approval for PSYOPS in peacetime or wartime rests at the NCA level. The

NCA has delegated PSYOPS approval authority to ASD SO/LIC. Additionally, U.S. policy requires review of PSYOPS

by the DoD General Counsel prior to approval (see Chapter II, Joint Pub 3-53). Consequently, an overall PSYOPS

campaign will have ordinarily been reviewed and approved at echelons above the level of a unit or JTF judge advocate.

The role of the judge advocate, then, is to provide advice on the implementation of the PSYOPS campaign.

While PSYOPS elements work closely with Civil Affairs (CA) elements, the G-3 coordinates their activities, not the

G-5. Still, CA, PSYOPS, and public affairs actions can dramatically affect the perceived legitimacy of a given operation.

When properly utilized, PSYOPS is a force multiplier. It can be employed to enhance the safety and security of the force

by communicating directly with the local and regional audience to inform them of such things as: (1) the existence and

location of Civil Military Operations (CMO); (2) the nature and extent of the mission; and, (3) instructions to avoid

interfering with ongoing military operations. PSYOPS is often the only means of mass communications a field

commander has with both hostile and foreign friendly groups on the area of operations.

Major Legal Considerations/Limitations in PSYOPS:

a. United States Citizens. U.S. policy is not to conduct PSYOPS toward U.S. citizens, whether they

are located within the U.S. or OCONUS. Judge advocates must be particularly cognizant of this policy during disaster

relief operations, such as occurred following Hurricane Andrew, where PSYOPS units were operating in CONUS.

Chapter 22

Special Operations

378
b. Truth Projection. PSYOPS techniques are used to plan and execute truth projection activities

intended to inform foreign groups and populations persuasively (Joint Pub 3-53, Chapter I, para. 5a(1)). We do not

engage in misinformation, although information may be slanted to our perspective in order to persuade. To succeed,

PSYOPS information cannot be viewed as deceptive.

c. DoS Supervision. In peacetime, DoS provides the overall direction, coordination, and supervision

of overseas activities. DoS may restrict messages, themes, and activities within countries or areas. New missions,

projects, or programs must be coordinated with the U.S. Country Team at the U.S. Embassy.

d. Geneva Conventions/Hague Regulations. Judge advocates must carefully review deception plans

to ensure that they do not employ treachery or perfidy, which are prohibited acts under the law of war.

e. Treaties in Force. International agreements with host countries may limit the activities of PSYOPS

units. Judge advocates must carefully review SOFAs and other agreements prior to, and during the course of,

deployments.

f. Use of PAO Channels. PAO channels are open media channels that provide objective reporting.

Consequently, they MAY be used to counter foreign propaganda. PAO and PSYOPS staffs should coordinate their

efforts. However, because the PAO must remain credible, information passed through PAO channels MUST NOT

propagandize. It must be objective truth.

g. Domestic Laws. PSYOPS uses extensive computer, audio, and video technology. Accordingly,

judge advocates must be alert to copyright and fiscal issues, and ethics limitations on the use of PSYOPS capabilities for

private groups.

h. Fiscal Law. PSYOPS campaigns may include giveaways (T-shirts with a printed message, for

example). The purchase and distribution of giveaways requires careful fiscal law analysis.

i. Personnel Issues. Many PSYOPS assets are in the Reserve Component (RC). Many PSYOPS

analysts are DoD civilians who voluntarily deploy to mission areas. Disciplinary, readiness, and law of war issues for RC

and civilian personnel involved in PSYOPS require the attention, and early proactive involvement, of judge advocates.

j. Disciplinary Exceptions. PSYOPS teams may require exceptions to restrictions often contained in

General Orders. For example, PSYOPS personnel conducting an assessment of PSYOPS may have to wear civilian

clothing in contravention of a general requirement to remain in uniform at all times.

Civil Affairs (CA) Operations.

Military commanders must consider not only the military forces but also the environment in which those forces

operate. One factor of the environment that commanders must consider is the civilian population and its impactwhether it is supportive, neutral, or hostile to the presence of military forces. CA forces enhance the relationship of

the military command with the civilian populace. They assist commanders in working with civil authorities and in

controlling the populace in the operational area. (Dept of Army, Field Manual 41-10, Civil Affairs Operations 1-1,

6-1).

Terms and Definitions

CA are the designated Active and Reserve Component forces and units organized, trained, and equipped specifically

to conduct CA activities and to support civil-military operations (CMO). Approximately 95% of the CA force structure

reside in the USAR.

CA activities are activities performed or supported by CA forces that: (1) embrace the relationship between military

forces and civil authorities in areas where military forces are present; and (2) involve the application of CA functional

specialty skills, in areas normally the responsibility of civil governments, to enhance the conduct of CMO. All CA

activities support CMO.

Chapter 22

Special Operations

379
CMO are the activities of a commander that establish, maintain, influence, or exploit relations between military

forces, government and nongovernment civilian organizations and authorities, and civilian populace in a friendly, neutral,

or hostile area of operations in order to facilitate military operations and consolidate and achieve U.S. objectives. CMO

may include performance by military forces of activities and functions normally the responsibility of local, regional, or

national government. These activities may occur before, during, or after other military actions. They may also occur, if

directed, in the absence of other military operations. CMO are conducted to minimize civilian interference with military

operations, to maximize support for operations, and to meet the commanders legal and moral obligations to civilian

populations within the commanders area of control. (Joint Publication 3-57, Joint Doctrine for Civil-Military

Operations).

Civil-Military Cooperation (CIMIC) refers to NATOs broad approach to security. CIMIC covers a wide variety of

activities ranging from sustaining life to restoring government. CIMIC functions normally are divided into the following

three groups: pre-operational, operational, and transitional. NATO describes CIMIC as those measures undertaken

between NATO Commanders and national authorities, civil and military, which concern the relationship between NATO

forces and the national governments and civil populations in an area where these military forces are, or plan to be,

stationed, supported or employed. Such measures also include cooperation between the Commanders of the NATO

forces and UN-agencies, Non-Governmental Organizations (NGO), Private Volunteer Organizations (PVO) and other

authorities. (NATO Logistical Handbook).

Civil-Military Operations Center (CMOC) is the nerve center for CMO. It is an ad hoc organization, normally

established by the geographic combatant commander or subordinate joint force commander, to assist in the coordination

of activities of engaged military forces, and other U.S. Government agencies, nongovernmental organizations, and

regional and international organizations (IO). There is no established structure, and its size and composition are situation

dependent. This organization is where coordination occurs between the several DoD agencies and other non-DoD

agencies (i.e., DoS, USAID, DART). It also performs essential coordination or liaison with host nation (HN) agencies,

the Country Team, and if applicable, UN agencies.

Relationship Between CMO and CA Activities

CMO is broader in scope than CA activities. CMO encompass the CA activities that the commander takes to

establish and maintain relations between the military forces and the civilian authorities and general population, and the

institutions in the area of operation. CMO occurs in virtually every operation across the range of military operations

including peacetime, military operations other than war (MOOTW), and war. CA forces support the commander in the

execution of CMO by assisting in the planning, coordination, and supervision of CA activities.

Designated CA forces, other military forces, or a combination of CA forces and other forces may perform CMO. In

general, every U.S. military organization has some capability to support CMO. Activities include food and water

distribution, medical treatment for the HN civilians, repairing battle damage, and improving local infrastructure.

The authority of the commander to conduct CMO is derived from a decision of the National Command Authorities

(NCA) to conduct a military operation. Limitations on this authority may be found in the mission statement, international

agreements, the law of armed conflict, U.S. foreign policy decisions, U.S. and HN law, the relationship between the

government of the U.S. and the HN, and the participation of other foreign countries in the operation. Other considerations

that may affect CMO include the availability of resources, U.S. fiscal law, the political-military situation, the requirement

of the military situation, and the environment (e.g., economic and social development of the HN). Although conditions

may differ, the basic mission of securing local acceptance and support for U.S. Forces, and minimizing and eliminating

the friction and misunderstandings that can detract from U.S. relations, remains the same.

CA Activities Supporting CMO

As previously noted, CMO occurs in peacetime, MOOTW, and war. The nature of the military operation will

determine the specific CA activities that will be conducted in support of CMO. In general, CA forces prepare estimates,

country assessments, agreements, operation plan (OPLAN) and operation plan in concept format (CONPLAN) annexes,

and other documentation required to support military operations. They coordinate CMO with other DOD and/or U.S.

Government agencies, multinational, or HN governmental civil and military authorities, or other civilian groups, to

facilitate an understanding of the objectives and synchronize efforts to achieve the mission. CA forces also supervise the

Chapter 22

Special Operations

380
execution of CMO performed by U.S. or foreign personnel or agencies. Finally, they serve as liaison between U.S.

military and allied or coalition, HN forces, IOs, NGOs and PVOs.

CA activities include foreign nation support (FNS), populace and resource control (PRC), humanitarian assistance

(HA), military civic action (MCA), emergency services and support to civil administration. PRC, HA and MCA were

designed for low intensity conflict scenarios (foreign internal defense (FID) and unconventional warfare), but the

activities may be used in other environments.

FNS involves the identification, coordination, and acquisition of resources, such as supplies, material, facilities and

labor, in support of a U.S. military mission during peace, preparation for war, and wartime. FNS includes both HN

support (HNS) and third country support. HNS is support provided by a friendly country for U.S. military operations

conducted within its borders, based upon status of forces agreements or other mutually concluded agreements. Third

country support includes support provided by friendly or allied nations. By receiving this support, the U.S. military

reduces the need for U.S. personnel, material, and services within the area of operations. FNS is the preferred method of

obtaining combat service support.

The Assistant Chief of Staff G5/CMO (G5/CMO) is responsible for identifying and acquiring FNS required by the

force. CA forces assist the G5/CMO by identifying available resources, facilities, services, and support, within the

supported commands area of operations. Additionally, they coordinate U.S. requirements for, and assist in the

acquisition of local resources, facilities, services, and support. For example, in the acquisition process, CA forces make

recommendations concerning the availability of local resources, identify the source, and serve as the initial intermediary

for the U.S. military and the local source.

CA operations in FNS were clearly demonstrated during Operations DESERT SHIELD/STORM. In particular, CA

forces met with Saudi officials to arrange for the use of various facilities such as laundry, shower, mail, warehouse, and

maintenance space. Also, CA forces arranged for the acquisition of food, water, medicine, and other supplies to support

both dislocated and enemy prisoner of war operations.

Populace and resource control operations are measures to deny support and assistance to an enemy by controlling the

movement of people, information, and goods. Examples of population controls operations include such measures as

registration, identification cards, movement control, curfews, travel permits, censorship, and resettlement of the local

population. Resource controls operations include rationing, regulations or guidelines, price-controls, licensing, amnesty

programs, inspection of facilities, and checkpoint operations. CA forces support PRC operations by providing advice and

assistance in planning and conducting PRC. Although HN police or military forces normally carry out these operations,

U.S. forces may be required to conduct these operations until HN forces are available to relieve them.

An example of PRC operations occurred during Operation DESERT STORM. CA forces supporting a French

Division established a military checkpoint to screen dislocated civilians (DCs) returning to the town of As Salman, Iraq.

At the checkpoint, all vehicles and personnel were stopped and searched by CA forces for weapons and other contraband.

Iraqi military personnel were identified, separated from the DCs and transported to an enemy prisoner of war (EPW)

camp. After screening and in processing, the DCs were issued U.S. made identity card and rations. Finally, all DCs

returning to the town were briefed by the muhktar (tribal leader) on the militarys administration of the town and rules for

As Salman.

In addition to the above, PRC operations include dislocated civilian (DC) operations and noncombatant evacuation

operations (NEO). DC operations minimize local population interference with U.S. military operations and protect

civilians from the collateral effects of combat. Uncontrolled masses of people seriously impair the movement of military

units and supplies in support of the commanders operations. These operations also mitigate and control the outbreak of

disease among DCs that can spread to military forces operating in the area. Finally, DC operations centralize the

population of DCs into selected and controllable areas where they can receive supplies and services.

The G5/CMO is the primary planner of DC operations. CA forces support the G5/CMO by planning and conducting

DC operations. In addition, they advise the G5/CMO on the anticipated reaction of the populace to the planned military

operations. CA forces coordinate with military police (MP) and/or security forces, psychological operations (PSYOP)

forces, and logistic support for the movement, collection, housing, feeding, and protection of DCs. They also coordinate

with U.S. and HN agencies, international organizations (IO), NGOs and PVOs that are operating within the area of

Chapter 22

Special Operations

381
operation. The purpose of this coordination is to obtain the necessary support from these agencies and organizations

thereby reducing the requirements placed upon U.S. military forces in meeting the commanders legal obligations in

providing the minimum standard of humane care and treatment for all civilians. Finally, CA forces may be called upon to

provide humanitarian and civic assistance to dislocated civilians located outside the combat zone.

In Operation DESERT STORM, CA forces controlled and provided humanitarian assistance to displaced civilians,

refugees, and EPWs found on the battlefield. As a result of their efforts, CA forces minimized the effect these persons

had on military operations and safeguarded them from combat operations. In the rear areas, CA forces organized and

managed the displaced civilians and refugee collection points and camps and assisted the transition of responsibility for

these groups from military to international relief organizations. (see, DoD Report to Congress, Conduct of the Persian

Gulf War).

Another example of DC operations occurred in Northern Iraq during Operation PROVIDE COMFORT. The major

CA effort in this operation involved establishing and operating camps for the displaced Kurdish civilians. CA units

interfaced with over 60 private and voluntary organizations, the USAF, the USMC, the armies of over eight allied

countries and United Nations (UN) agencies in providing assistance to the Kurds. During this operation, they worked

with various supporting units and organizations to insure that over a half million Kurds were housed, moved, clothed, fed

and assisted while displaced from their homes.

NEOs are military operations conducted to relocate threatened noncombatants from locations in a foreign country.

They are normally conducted to evacuate U.S. citizens from a hostile environment created either by armed conflict,

lawlessness, or natural disaster. Evacuees may also include selected local citizens or third country nationals, including

NGO and PVO volunteers, IO workers and members of media organizations. During NEOs, the U.S. Ambassador is the

senior authority for the evacuation and is ultimately responsible for the successful completion of the NEO and the safety

of the evacuees. However, the military commander is solely responsible for conducting the operation. (For a detailed

review of NEOs, see Operation Law Handbook, Chapter 21 and Joint Pub 3-07.5, Joint Tactics, Techniques, and

Procedures for Noncombatant Evacuation Operations).

CA forces support NEOs by advising the commander on how to minimize population interference with evacuation

operations. When possible, they obtain civil or indigenous support for the NEO. CA forces maintain close liaison with

embassy officials to ensure effective coordination and delineation of CMO responsibilities and activities. They may also

assist the embassy personnel in receiving, screening, debriefing and identifying evacuees. Finally, CA forces can support

operations at the evacuation site, holding areas for non-U.S. nationals denied evacuation, and reception and processing

stations.

Humanitarian assistance operations are conducted to relieve or reduce the results of natural or manmade disasters or

other endemic conditions such as human pain, disease, hunger, or privation that might present a serious threat to life or

that can result in great damage to or loss of property. HA may be considered as part of the FID when the support is

provided to a HN that is experiencing lawlessness, subversion, or insurgency. However, HA efforts may be in response

to unforeseen disaster. HA is designed to supplement or complement the efforts of the HN civil authorities or agencies

that have the primary responsibility for providing humanitarian assistance. In addition, the assistance provided by U.S.

forces is limited in scope and duration. Examples of HA operations include medical assistance programs, transportation

assistance, or other activities that provide basic services to the local populace.

HA operations encompass disaster relief, refugee assistance and humanitarian and civic assistance (H/CA). Disaster

relief operations provide emergency assistance to victims of natural or manmade disasters in overseas areas. These

operations are responses to requests for immediate assistance and rehabilitation from foreign governments or international

agencies. Disaster relief operations may include refugee assistance, food programs, medical treatment and care or other

civilian welfare programs.

CA forces support HA operations by providing relief, coordinating programs for relief and rehabilitation, and

providing control measures appropriate to the situation. In Operation RESTORE DEMOCRACY, CA forces coordinated

the work of NGOs and PVOs and planned and executed humanitarian assistance and civic action projects. CA activities

included medical care, food distribution, and rudimentary construction of roads and sanitation facilities.

Chapter 22

Special Operations

382
Refugee Assistance operations support the resettlement of refugees and displaced persons. CA forces assist the

military in providing or coordinating for the safety, sustenance, and disposition of refugees and displaced persons.

During Operation JOINT FORGE, the Combined-Joint Civil-Military Task Force (CJCMTF), a Stabilization Force

(SFOR) formation, performed activities that supported the return of displaced persons and refugees (DPRE) to Bosnia and

Herzegovina. CJCMTF prepared Municipality Information Reports (MIR) which included detailed information about the

population, economy, public services, housing, and infrastructure of the municipalities within Bosnia and Herzegovina.

The reports also included a recommendation regarding the suitability of the municipality for the return of DPREs. Once

completed, the reports were placed on the Repatriation Information Center webpage on the Internet. In this manner,

DPREs could obtain information about their former communities when deciding whether to return to their pre-war homes.

The CJCMTF also participated at all levels of the Reconstruction and Returns Task Force (RRTF). The RRTF

coordinated international support for the process of DPRE returns. At the highest level, the RRTF developed policy,

shared problems and developed solutions to those problems with the membership. At the field level, the RRTF

synchronized returns by bringing all relevant actors together to discuss and coordinate the return process. In addition, the

CJCMTF established and maintained a liaison and coordination role with both the Federation and the Republika Srpska

ministries responsible for DPRE returns. In Multinational Division North, the CA battalion determined the requirements

for, identification, submission, and verification of Community Infrastructure Rehabilitation Program (CIRP) projects.

The CIRP program provided funding for the rebuilding of community infrastructure related to water, electricity, street

lighting, roads, bridges, and other needed projects. In addition to developing the infrastructure, CIRP projects encouraged

the local community to cooperate with DPRE returns. Finally, the CJCMTF provided functional expertise and support to

various organizations (IOs, NGOs, and PVOs) supporting the return process.

Humanitarian and Civic Assistance (H/CA) is provided to the local populace by predominantly U.S. forces in

conjunction with military operations and exercises. This assistance is specifically authorized by title 10, United States

Code, section 401 and funded under separate authorities. Assistance provided under these provisions is limited to: (1)

medical, dental, and veterinary care provided in rural areas of a country; (2) construction of rudimentary surface

transportation systems; (3) well drilling and construction of basic sanitation facilities; and (4) rudimentary construction

and repair of public facilities. The assistance must fulfill unit-training requirements that incidentally create humanitarian

benefit to the local populace.

MCA involves activities intended to win support of the local population for the foreign nation and its military. MCA

is an essential part of military support to a FID. MCA is the use of preponderantly indigenous military forces on projects

useful to the local population at all levels in such fields as education, training, public works, agriculture, transportation,

communications, health, sanitation, and others contributing to economic and social development, which would also serve

to improve the legitimacy of the military forces and host government with the populace. The long-range goal of MCA is

to nurture national development. CA forces plan, coordinate, advise, and direct MCA operations for the host government.

As an example, CA forces assist indigenous forces by providing skills in the technical areas of light-construction

engineering and medical support. Successful CA operations eliminate or reduce military, political, economic and

sociological problems. Although MCA may involve U.S. supervision and advice, the visible effort will be conducted by

the local military.

Emergency Services operations support the ability of a HN to respond to disasters or other emergencies. CA forces

provide advice and assistance in identifying and assessing the HNs emergency service capabilities and resources. In

addition, they assist in emergency planning and operations. For example, during Operation DESERT SHIELD, CA

forces assisted the Saudi government in civil defense emergency planning. They were also familiar with the status of the

Saudi civil defense preparedness including dispersal locations, warning systems, shelters, and NBC defense resources for

civilians. (see DoD Report to Congress, Conduct of the Persian Gulf War).

DoD also conducts operations outside the continental U.S. (OCONUS) that respond to immediate emergency

conditions that are created by a disaster and effect emergency repairs to, or the emergency restoration of, vital utilities and

facilities destroyed or damaged by any such disaster. CA forces can assess the damage to the civil infrastructure, assist in

the operation of temporary shelters, and serve as liaison between the military and local relief organizations, NGOs, PVOs,

IOs, and other U.S. agencies involved in the operation.

Civil Administration is established by a foreign government in: (1) friendly territory, under an agreement with the

government of the area concerned, to exercise certain authority normally the function of the local government, or (2)

Chapter 22

Special Operations

383
hostile territory, occupied by US forces, where a foreign government exercises executive, legislative, and judicial

authority until an indigenous civil government can be established.

CA support includes: (1) assisting a host/allied government in meeting its peoples needs and maintaining a stable

and viable civil administration; (2) establishing a temporary civil administration to maintain law and order and to provide

life sustaining services until the HN can resume normal operations; and (3) establishing a civil administration in occupied

enemy territory at the direction of the National Command Authority. U.S. commanders will only undertake this unique

action when directed or approved by the NCA. Civil affairs forces plan, coordinate, advise, or assist those activities that

reinforce or restore a civil administration that supports U.S. and multinational objectives in friendly or hostile territory.

After the Gulf War, CA forces conducted Civil Administration operations in support of the Kuwait government.

Specifically, CA forces defined contract requirements, reviewed contract proposals, and advised Kuwait government

officials on the merits of proposed contract arrangements. As a result of CA efforts, the Kuwait government awarded

more than 558 million dollars in contracts to restore country operations. In addition, CA forces were involved in the

restoration of electric power, the repair of the desalination plants, and ordnance disposal in Kuwait.

In Civil Assistance operations, CA forces provide advisory assistance to a host government in a variety of areas such

as public safety, transportation, communications, and public education. For example, in Operation RESTORE

DEMOCRACY, CA forces assessed the needs of the Haitian government ministries and provided training and assistance

to the ministries. They worked with Haitian officials to improve public health, sanitation, education, welfare, public

administration, justice, transportation and communication systems. CA forces also performed damage assessments of

critical facilities within the country and recommended and coordinated short-term remedial action to restore the functions

and services of the Haitian government.

In addition to the above, CA forces provide the commander with information on protected cultural assets such as arts,

religious edifices, monuments, and archives. They provide safeguards and any other required protection over collections

of artifacts and objects of historical or cultural importance, including appropriate records thereof. Additionally, CA

forces make appropriate recommendations on plans to use or target buildings or locations of cultural value, such as

temples, universities, and shrines.

CA forces also assist the commander in fulfilling his legal and moral obligations in accordance with international law

including the law of war, as well as domestic U.S. laws, directives, and policy. Toward that end, CA legal advisers, in

coordination with the Staff Judge Advocate of the supported command, review current plans and future operations with

respect to applicable laws and agreements and advise the commander, as required. Additionally, CA forces observe

conditions within the area of operations and ensure the commander is kept informed of the needs of the local populace.

Command and Control

CA forces supporting a general-purpose force operation may be assigned to the unit they support and either augment

or work under the staff supervision of the G5/CMO. The G5 is the principal staff assistant to the commander in all

matters concerning political, economic, and social aspects of military operations. The G5/CMO acts as a liaison between

the military forces, civil authorities, and people in the area of operations. The G5/CMO supervises CA activities in the

areas of government, economics, public facilities, and special functions, such as displaced civilians, refugees, evacuees;

arts, monuments, and archives; cultural affairs; and civil information. Finally, the G5/CMO coordinates with the SJA on

all legal maters related to CMO.

Upon mobilization, the CA Command (or senior CA unit in a theater) is normally under the command of the theater

Army (TA). The TA will normally exercise OPCON of the CA Command directly. Subordinate CA forces may be

General Support (GS), Direct Support (DS), or under operational control OPCON to supported headquarters within the

theater. In all cases, CA units look to the next higher-level CA unit in country for technical and policy guidance. It

should be noted that, in peacetime and in time of armed conflict, CA operations must be thoroughly coordinated and

synchronized with the Country Team to insure unity and synergism of effort.

Legal Personnel in Support of Civil Affairs

Chapter 22

Special Operations

384
Judge advocates assigned to CA units are the primary legal advisors to their respective units. Within the USAR,

judge advocates are assigned as International Law Officers at the command, brigade and battalion levels. The senior

judge advocate of the unit is designated the Command Judge Advocate (CJA) and, therefore, is a member of the CA

commanders personal and special staff. CA judge advocates provide mission-essential legal services to the unit,

including operational law legal service. A CJA of a deployed CA organization will coordinate with the SJA of the

command to which the CA organization is assigned or attached for technical guidance and supervision.

Although judge advocates are assigned to CA units, the SJA should not assume that the deployed CA force will have

its own organic legal support. When deployed, CA forces are tasked-organized based upon mission requirements. Judge

advocates may not be included on the statement of requirements. For example, CA force deployed in support of

Operation Joint Forge to Multinational Division North, Bosnia and Herzegovina, did not have a judge advocate assigned

to the CA battalion. Thus, the SJA for the supported command was responsible for providing legal services to the to the

battalion.

Legal Services in Support of Civil Affairs

IAW FM 27-100, LEGAL OPERATIONS, the SJA of the supported command and the CA CJA will effect coordination

in an effort to provide legal support and services during all phases of CA operations. In the planning phase, judge

advocates provide advice and assistance in the preparation and review of CA plans for consistency with U.S. law, NCA

guidance, and the rules and principles of international law including those incorporated in treaties, other international

agreements, and the provisions of the law of the place where U.S. Armed Forces will conduct operations.

Judge advocates prepare the legal section of the CA area study and assessment. The area study and assessment is a

planning document containing information on the designated area of operations compiled before deployment or

hostilities. The legal section is a general review of the legal system of the country under review and includes such matters

as the civil and criminal codes and the organization, procedures and personnel involved in the administration of justice.

(For a detailed review of the area study and assessment, see FM 41-10, CIVIL AFFAIRS OPERATIONS, Appendix G).

Judge advocates also provide predeployment training to CA forces. This training should include: (1) law of war, (2)

human rights violations and reporting requirements, (3) rules of engagement, (4) military justice, (5) legal assistance, and

(5) miscellaneous information concerning status of forces agreement (SOFA) with the HN, if any.

During the combat operational phase, judge advocates address legal issues concerning population control measures;

targeting to minimize unnecessary collateral damage or injury to the civilian population; treatment of dislocated civilians,

civilian internees, and detainees; requests for political asylum and refuge; acquisition of private and public property for

military purposes; psychological operations and their effects on the civilian population; and other operational law matters.

During the stability and consolidation phase, judge advocates provide legal services concerning such matters as

claims submitted by local civilians, disaster relief, and humanitarian and civic assistance issues. Additionally, judge

advocates may be called upon to give advice and assistance on matters relating to civil administration within a friendly or

enemy country once occupied. Judge advocates may also provide counsel regarding the creation and supervision of

military tribunals and other activities for the proper administration of civil law and order. In addition, legal services may

be necessary with respect to the issue of a local courts jurisdiction over U.S. military personnel and activities.

Counterproliferation (CP) of Weapons of Mass Destruction (WMD).

CP refers to actions taken to seize, destroy, render safe, capture, or recover WMD. If directed, SOF can conduct

Direct Action, Special Reconnaissance, Counterterrorism, and Information Operations to deter and/or prevent the

acquisition or use of WMD.

Information Operations (IO).

Information Operations are the actions taken to affect adversary information and information systems while

defending ones own information and information systems. An adversarys nodes, links, human factors, weapons

systems, and data are particularly lucrative targets, capable of being affected through the use of lethal and nonlethal

Chapter 22

Special Operations

385
applications or coordinated SOF IO capabilities. This is a new area of the law and it is in the development stage. (See the

chapter on Information Operations, this Handbook.)

SPECIAL OPERATIONS COLLATERAL ACTIVITIES

In addition to the nine listed SOF activities, SOF also conduct what are known as collateral activities. Based on

inherent capabilities possessed by SOF required to complete their primary missions, they are particularly suited for these

collateral activities as well. The seven most common collateral activities in which SOF participate in are stated below.

Coalition Support.

SOF will deploy whenever possible in small groups to accompany coalition forces during deployments or actual

combat operations. This includes training coalition partners on tactics and techniques, assisting with communications and

integration into the command and intelligence structure. SOF possesses the language capability, cultural awareness, and

interpersonal skills, which enable them to build tight professional and personal bonds with allied contingents. Termed

coalition support teams (CST), the SOF train, live, deploy, and sometimes fight alongside our allies. CST play an

integral part in ensuring that the Rules of Engagement are understood and followed by the members of the coalition.

They will dramatically assist the judge advocate responsible for training foreign forces in the Task Force Rules of

Engagement. CST must understand that they are required to document and report violations of the law of war. CST may

not be able to prevent (nor are they usually required by law or direct command policy to intervene) in all ROE, Law of

War, or Human Rights violations committed by allied forces. They remain subject to the UCMJ and may not participate

in violations; and, additionally, must document and report incidents immediately.

Combat Search and Rescue (CSAR).

CSAR involves the rescue and recovery of distressed personnel during war or MOOTW. USSOCOM is responsible

for the CSAR of its own forces, and, when directed, other forces as well. SOFs ability to conduct operations deep behind

enemy lines makes it well suited for CSAR.

As a result of the U.S. becoming a party to the 1993 Chemical Weapons Convention, the use of RCA in CSAR has

become a significant legal issue. The Convention specifically bans the use of RCA as a method of warfare. E.O.

11850, which is still in effect, specifically permits the use of RCA in CSAR. The implementation section of the Senate

resolution ratifying the treaty requires that the President not modify E.O. 11850. (S. Exec. Res. 75, Senate Report, s3373

on 24 April 1997, section 2 - conditions (26) RCA) The President, in his certification document, wrote, the United

States is not restricted by the convention in its use of riot control agents in various peacetime and peacekeeping

operations. These are situations in which the U.S. is not engaged in the use of force of a scope, duration, and intensity

that would trigger the laws of war with respect to U.S. forces. Despite the fact that CSAR is defensive in nature, the use

of RCA in such a case is arguably a method of warfare when used during international armed conflict. Therefore, even

though E.O. 11850 is still valid, it is unlikely that the NCA would approve the use of RCA in CSAR during international

armed conflict where the law of war is applicable. It may however approve its use for CSAR in peacekeeping or peace

enforcement operations.

Counterdrug Activities (CD). (See the chapter on Domestic Operations, this Handbook).

SOFs participation in CD includes active measures to detect, monitor, and counter the production, trafficking, and

use of illegal drugs. In OCONUS CD, SOF possess the cultural and linguistics capabilities to assist foreign governments,

largely though training. SOF may also help U.S. and foreign law enforcement agencies with military applications, such as

SR, in CD. In CONUS CD, SOF are often used to train and assist local, state and federal law enforcement agencies.

In CD, like other MILOPS, the SOF judge advocate must be sensitive to fiscal issues. Money for CD programs

where SOF is involved primarily comes from the Operations and Maintenance (O&M) appropriation. While the funds

come from O&M, a specific statutory authorization must be located to support the planned CD. It is not enough that the

CD represents a training opportunity in order to justify the expenditure of money for CD. This is because CD involves

aid or augmentation of one sort or another to foreign governments or U.S. civilian law enforcement agencies (CLEA),

activities that are generally contrary to the proper use of O&M. General statutory authorizations can be found in 10

Chapter 22

Special Operations

386
U.S.C. §§ 371-382 and various Authorization Acts. See § 1004, Natl Def. Auth. Act for 1991, Pub. L. 101-510,

extended through FY 99 by § 1121, Natl Def. Auth. Act for 1995, Pub. L. 103-337. Most SOF OCONUS CD comes in

the form of training foreign troops and is funded by way of 10 U.S.C. § 2011, The Special Forces Exception.

Absent specific Congressional authority otherwise, the Posse Comitatus Act, 18 U.S.C. § 1385, prohibits the direct

participation of DoD personnel in law enforcement activities in CONUS. For example, SOF may not be directly involved

in searching or seizing contraband or arresting suspects. The act does not prevent DoD personnel from conducting

routine training that has the incidentally benefits CLEA. Therefore, it is absolutely critical that all CONUS CD directly

relates to the units METL. It is up to the operators to determine their METL, but the judge advocate may become

involved in helping the operators determine whether what they are being asked to do comports with their Mission

Essential Task List (METL). Legal review of CD is generally conducted by judge advocates assigned to the units that

organize DoD involvement, such as JTF-6. However, the SOF judge advocate cannot afford to defer completely to those

other organizations because although the legally reviewed mission may be characterized as legal, it may not comply

with SOF CD policies and procedures. The Posse Comitatus Act does not apply overseas as a matter of law. However,

SOF may not directly participate in law enforcement overseas as a matter of policy, DoD Dir. 5525.5, absent SECDEF

approval. Of course ARNG SOF, acting in a state status, are not affected by the Posse Comitatus Act because they are

not federal troops in such a situation.

If SR is to be used in CD, the SOF judge advocate must insure that it does not include the collection of intelligence

on U.S. persons in violation of E.O. 12333. (See Chapter 15, Intelligence Law). Collection however, is a term of art and

means more than the mere acquisition of information. Collection entails the acquisition and maintenance of information

for future use. This issue often arises in conjunction with Posse Comitatus in CONUS based CD ground operations. For

example, a SOF team may be asked to establish an SR site at a seemingly deserted airstrip CONUS. They are told to

radio in to CLEA when and if planes land at the strip and to record the tail numbers of the aircraft or take pictures of the

aircraft. A detachment may be asked to establish an SR site adjacent to a marijuana field in the U.S. and further directed

to radio CLEA when anyone enters the field and to take his or her picture. It is easy to see how these activities could be

alleged to constitute direct participation in law enforcement and the collection of intelligence.

If information obtained in this fashion is immediately handed over to CLEA, either in the form of real time

communication or in the form of undeveloped film, and not stored or maintained in any manner by SOF, then it does not

constitute collection because there is no storage component. Although it is a METL task to develop film in the field, it

should not be done if it involves taking pictures during CONUS CD. There is however, no requirement for SOF to wear

blinders. SOF may pass on to CLEA information concerning criminal activities it observes while training. This points

out the need to make sure that any activities participated in by SOF in CD are clearly within their METL or it may be

characterized as law enforcement rather than as training. If as part of the SR, the team is to conduct an overall terrain

reconnaissance, then taking pictures of the zone, including the field in question, would be permitted if it is part of that

training mission. However, such a mission would not include the surveillance of persons. If the team begins to target

individuals with the camera, it begins to look more like surveillance than zone reconnaissance. The purpose of taking the

pictures must be routine training.

Even if legally permissible, the decision to participate in CD has tremendous policy implications. The use of the

military in any activity even remotely linked to CONUS law enforcement generates controversies with many. It is even

potentially more controversial when SOF is being used. If a young infantryman makes a mistake during CD, it would be

easier to explain the circumstances of such a soldiers mistake than it would be to explain a similar mistake made by a

seasoned SF NCO. Any CD military application in CONUS creates the possibility of exposure of the units activities

through the courts and the media. In a criminal defense, which alleges a Posse Comitatus violation, members of SOF

could be potentially hauled into court and forced to testify regarding past and future CD ops and techniques used in SR.

Foreign Humanitarian Assistance (HA).

HA is provided by DoS through various economic aid programs. DoD does, however, provide some limited HA. For

SOF, this generally is in the form of Humanitarian and Civic Assistance (HCA) authorized by 10 U.S.C. § 401. HCA

comes in three varieties. Demining, which will be discussed below, preplanned HCA, and de minimis or target of

opportunity HCA. There is a clear nexus between a governments ability to provide basic human services to it citizens

and its internal security. Insurgencies and organized criminal enterprises are more successful as a general rule in

countries where the government either will not or cannot support the populace. Through HA, the U.S. government is able

Chapter 22

Special Operations

387
to assist developing nations provide those much needed services to their citizens. This may result in greater regional

stability, which is beneficial to U.S. interests. Moreover, HCA is often the gateway for U.S. forces into areas where

access is limited because of diplomatic concerns. There are obvious benefits to SOF in the form of training and in

obtaining information regarding counties in their regional area.

For SOF, at the execution level, most problems occur when the teams either exceed the scope of the statute or they

leave behind the tools or medicine involved with the HN locals. For example, if an operation calls for a team to repair a

medical clinic in a rural area as is authorized by statute, SOF may not buy refrigerators, sterilizers, tables and chairs for

the clinic; that is not repair, that is stocking a clinic. That may constitute foreign aid with no nexus to training and no

improvement of the SOF readiness skills. Similarly, leaving behind medicine or tools purchased to accomplish an HCA

mission would arguably unlawfully augment DoS funds for foreign aid. Leaving DoD purchased property behind where

the unit is no longer present means that there is no longer training value to the U.S. Forces involved.

(See generally the chapters on Fiscal Law and Security Assistance and Foreign Assistance., this Handbook.)

Countermine Activities.

Demining is a form of HA. Demining projects may be funded by security assistance funds, 22 U.S.C. § 2765, or by

HCA through 10 U.S.C. § 401(e)(5). The focus of this paragraph will be on HCA because it is the form of demining in

which SOF most often participates. HCA demining is funded by an annual O&M appropriation known as the Overseas

Humanitarian, Disaster and Civic Aid (OHDACA) account. Although the money is appropriated annually, it is available

for two years. Because OHDACA is actually a fenced pot of money within the general Operations and Maintenance

(O&M) account, it is often referred to as an appropriation within an appropriation. Five disaster and humanitarian

programs, including § 401 demining, are funded with OHDACA. For FY 99, Congress appropriated $50,000,000 to

OHDACA. Of this amount, Congress indicated its legislative intent, that $35,000,000 be used for demining. Congress

also appropriated $35,000,000 for the SA demining program for FY 99.

HCA demining includes the detection and clearance of landmines, including activities relating to the furnishing of

education, training, and technical assistance with respect to the detection and clearance of landmines. There are however,

significant limitations. U.S. forces are not to engage in the physical detection, lifting, or destroying of landmines, unless

it is done for the concurrent purpose of supporting a U.S. military operation.

Unlike other HCA however, the assistance is to be provided during military operations with HN forces, which means

that it may indirectly or directly benefit HN forces. Moreover, the equipment used in the demining operation may be

transferred to the HN.

Security Assistance (SA).

SOF, particularly the Special Forces, are often tasked to deploy Mobile Training Teams (MTTs) overseas to conduct

security assistance training. The judge advocate must review the proposed mission in order to ensure that the

jurisdictional status of the team members has been addressed. Typically, the mission will be conducted as a Foreign

Military Sales (FMS) case under the Arms Export Control Act (AECA). The FMS Letter of Offer and Acceptance (LOA)

should set forth the status of the team members while they are in the host country. These personnel will most probably

receive the same privileges and immunities as those accorded the administrative and technical staff of the U.S. Embassy

pursuant to the Vienna Convention on Diplomatic Relations. Security assistance team members may also be considered

part of the United States security assistance office (SAO) located in the host country. The judge advocate should refer to

the bilateral agreement between the U.S. and the host country in order to determine these privileges. If neither the LOA

nor the SAO addresses the jurisdictional status of U.S. forces, the judge advocate should contact the Security Assistance

Training Management Office, Fort Bragg, North Carolina (DSN: 239-9108/1599/5057/9008.)

Although the MTT is responsible to the U.S. military mission in the host country, it may operate autonomously in the

field. The team members must be aware of their sensitive, visible mission. For this reason, the judge advocate should

thoroughly brief the MTT on the laws and customs of the country to which they are deploying. This briefing is

particularly important if team members have not previously deployed to this particular country. The MTT may deploy to a

country experiencing internal armed conflict. In this situation, team members must be informed of the AECA (10 U.S.C.

Chapter 22

Special Operations

388
§ 2671c) which prohibits U.S. personnel from performing any duties of a combatant nature, including duties related to

training and advising, that may result in their becoming involved in combat activities. (See CJCS MSG DTG 1423587

Feb 91, which prohibits DoD personnel from accompanying Host Nation Forces on actual operations where conflict is

imminent.) In addition, guidance with respect to the acceptance of gifts from foreign governments and humanitarian law

concerns must be provided.

(See generally the chapter on Security Assistance and Foreign Assistance, this Handbook.)

Peace Operations.

SOF assist in peacekeeping operations, peace enforcement operations, and other military operations in support of

diplomatic efforts to establish and maintain peace. (See generally Chapter 23, United Nations and Peace Operations).

Special Activities.

These are activities that are planned and executed so that the role of the United States government is not apparent or

acknowledged publicly. Special activities require a Presidential finding and Congressional oversight.

Chapter 22

Special Operations

389
Ch

apter 22

SpecialOperations

390
CHAPTER 23

UNITED NATIONS AND PEACE OPERATIONS

REFERENCES

1. United Nations Charter.

2. Presidential Decision Directive 25, May 1994.

3. Joint Pub 3-07.3, Joint Tactics, Techniques, and Procedures for Peace Operations, 12

February 1999.

4. FM 100-8, The Army in Multi-National Operations, 24 November 1997.

5. FM 100-23, Peace Operations, 30 December 1994

INTRODUCTION. The key to a successful peace operation rests with a fundamental understanding of operational goals

and objectives. The legal, doctrinal, and operational context of peace operations requires attorneys who work proactively

with an often ad hoc staff to articulate legal support for diverse facets of these complex missions. FM 100-23 contrasts

the operational reality of Peace Operations with armed conflicts by declaring that in peace operations, settlement, not

victory is the ultimate measure of success, though settlement is rarely achievable through military operations alone.

335

As a corollary to this reality, the military elements conducting OCONUS peace operations must remember that the

ambassador has the statutory responsibility for coordinating the activities of executive branch employees and conducting

foreign affairs on behalf of the President.336 This chapter will give you a thumbnail sketch of the history of Peace

Operations, followed by an overview of the National Policy and the Doctrinal Framework for Peace Operations. The

remainder of this chapter will supplement other chapters, focusing on selected legal issues unique to Peace Operations.

HISTORICAL BACKDROP. In the area of Peace Operations, Judge Advocates should be especially familiar with the

UN Charter, specifically Chapter VI, Pacific Settlement of Disputes (Articles 33-38), and Chapter VII, Action with

Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression (Articles 39-51). Chapter VI envisions a

Security Council role in assisting parties to any dispute likely to endanger the maintenance of international peace and

security as they strive to resolve conflicts through peaceful means of their own choice.

337 Chapter VI does not

specifically envision or authorize the deployment of military forces under UN authority to interpose themselves between

hostile parties. The frequent use of military forces as Peacekeepers, however, evolved as an extension of the UN desire to

facilitate the adjustment or settlement of international disputes or situations which might lead to a breach of the peace.

338

Peacekeeping is an internationally accepted mode of managing conflicts and giving states a buffer to seek long term,

peaceful resolutions.339 Because Peacekeeping was a compromise generated from the Security Councils inability to use

its Chapter VII enforcement powers, Peacekeeping Operations (PKO) have become an inherent part of the UN strategy

for resolving international disputes in the absence of more comprehensive and lethal collective security operations.

The Cold War context within which the UN operated for its first 44 years prevented the full use of Chapter VII

authority. Chapter VII gives the Security Council authority to maintain international peace and security by taking such

action by air, sea, or land forces as may be necessary.

340 Member states of the UN are obligated to accept and carry out

the decisions of the Security Council.341 Since 1990, the changing international security environment increased the scope

335 Dept of Army, Field Manual 100-23, Peace Operations (30 December 1994).<http://www.atsc-army.org/cgi-bin/atdl.dll/fm/100-23/fm100-23.htm>

336 22 U.S.C. § 3927. For a discussion of the relationship between the CINCs COCOM authority under 10 U.S.C. §§ 161-168 and the ambassadors

normal peacetime authority, see the chapter on Non-Combatant Evacuation Operations. For the legal basis of COCOM see 10 U.S.C. § 164.

337 UN Charter, art. 33, para. 1.

338 UN Charter, art. 1, para. 1.

339 There are currently 15 Peacekeeping Missions throughout the world. For a current list of active missions with personnel, budget, and fatality

statistics see http://www.un.org/Depts/dpko.

340 UN CHARTER, art. 42.

341 UN CHARTER, art. 25. If preventive or enforcement action becomes necessary, the General Assembly has the power to suspend the offending state

from the exercise of rights and privileges of UN membership at the request of the Security Council. UN Charter, art. 5.

Chapter 23

Peace Operations

391
and number of UN efforts. On the one hand, the thawing of Cold War hostilities allowed the Security Council to take

prompt and decisive action in response to Iraqi aggression in Kuwait. In the wake of the Gulf War success, the Security

Council used Chapter VII to authorize numerous operations which went well beyond traditional peacekeeping (including

enforcement of human rights provisions, establishment of safe havens for fleeing refugees, International Criminal

Tribunals, election monitoring, sanctions enforcement, nonproliferation monitoring, preventative diplomacy, and nation

building). The rapid increase in operations, both in number and complexity, generated some successes (Cambodia, El

Salvador, and Macedonia) as well as some failures (Somalia and Bosnia-Herzegovina before IFOR). At the time of this

writing, the UN is continuing its efforts to reform its own operational procedures,342 and reevaluating the proper role for

military deployments under UN authority in maintaining international peace and security.

The number of U.S. Army deployments is up 300% since 1989.

343 Before 1991, only a handful of U.S. military

observers served in three UN peacekeeping operations. Since the end of the Cold War U.S. military personnel have

served in UN peace operations in Kuwait/Iraq, the Western Sahara, Cambodia, the former Yugoslavia, Somalia, Rwanda,

and Haiti. The DoD has provided logistic support and planning expertise to most UN peace operations, as well as

providing assistance to other peacekeeping operations where the UN is not involved (i.e., Sinai, Beirut, Africa, and the

Caribbean). These activities, undertaken in close cooperation with the DoS, support U.S. foreign policy objectives for the

peaceful resolution of conflict, reinforce the collective security efforts of the U.S., our allies, and other UN member

states, and enhance regional stability. The current National Security Strategy states the America must continue to be an

unrelenting force for peace.

344

PRESIDENTIAL DECISION DIRECTIVE 25 (May 1994)

345 A former Secretary of State declared that while the UN

performs many important functions, its most conspicuous roleand the primary reason for which it was establishedis

to help nations preserve the peace.

346 The Clinton Administration defined its policy towards supporting Peace Operations

in Presidential Decision Directive 25, The Clinton Administrations Policy on Reforming Multilateral Peace Operations

(May 1994). PDD-25 is a classified document; the information in this summary is based upon the unclassified public

extract. The document reiterated that Multilateral Peace Operations are an important component of the U.S. national

military strategy and that U.S. forces will be used in pursuit of U.S. national interests. PDD-25 promulgated six major

issues of reform and improvement. Many of the same areas are the subjects of active debate, with Congress discussing

methods of placing stricter controls on how the U.S. will support peace operations and how much the U.S. will pay for

peace operations. The PDD-25 factors are an aid to the decision-maker. For the judge advocate, they help define the

applicable body of law, the scope of the mission statement, and the permissible degree of coalition command and control

over U.S. forces. There will seldom be a single document that describes the process of applying the PDD-25 criteria.

Nevertheless, the PDD-25 considerations surface in such areas as ROE, the media plan, command and control

arrangements, the overall legal arguments for the legitimacy of the operation, the extent of U.S. support for other nations

to name a few. The six areas highlighted by PDD-25 follow:

1. Making disciplined and coherent choices about which peace operations to support. (3 Phase Analysis)

The Administration will consider the following factors when deciding whether to vote for a proposed Peace

Operation (either Chapter VI or VII):

342 Such efforts have included the formation (at U.S. urging) of an Operations Center to help coordinate and monitor UN Peacekeeping Missions on a

round the clock basis, the establishment of an Under Secretary General for Internal Oversight Services to target fraud and abuse, more efficient

management procedures, and a no-growth budget which is expected to result in a 10% reduction in the Secretariats staffing level. There are currently

69 countries that have officially expressed interest in participating in Standby Force arrangements, to include 15 that have already signed Memorandums

of Understanding with the UN for the provision of troops and equipment.

343 The Honorable Togo D. West, Jr. & General Dennis J. Reimer, United States Army Posture Statement FY 97: Meeting the Challenges of Today,

Tomorrow, and the 21st Century 3 (1996).

344 The White House, A National Security Strategy for a New Century, October 1998.

345 Bureau of Intl Org. Affairs, U.S. Dept of State, Pub. No. 10161, The Clinton Administrations Policy on Reforming Multilateral Peace Operations

(1994), reprinted in 33 I.L.M. 795 (1994). See also James P. Terry, The Criteria for Intervention: An Evaluation of U.S. Military Policy in U.N.

Operations, 31 Tex. Int. L. Rev. 101 (1996).

346 Madeleine K. Albright, The UN, The U.S. and the World, 7 Dept of State Dispatch 474 (1996).

Chapter 23

Peace Operations

392
1) UN involvement advances U.S. interests and there is a community of interests for dealing with the

problem on a multilateral basis (NOTE: may entail multinational chain of command and help define

the scope of permissible support to other nations); 2) There is a threat to or breach of international

peace and security, defined as one or a combination of the following: international aggression, urgent

humanitarian disaster coupled with violence, or sudden interruption of established democracy or gross

violation of human rights along with violence or the threat thereof (NOTE: obviously important in

defining the mission, helping define the scope of lawful fiscal authority, and preventing mission creep);

3) There are clear objectives and an understanding of whether the mission is defined as neutral

peacekeeping or peace enforcement; 4) Does a working cease-fire exist between the parties prior to

Chapter VI missions? OR 5) Is there a significant threat to international peace and security for Chapter

VII missions?; 6) There are sufficient forces, financing, and mandate to accomplish the mission

(NOTE: helps define the funding mechanism, supporting forces, and expected contributions of

combined partners); 7) The political, humanitarian, or economic consequences are unacceptable; 8)

The operation is linked to clear objectives and a realistic end state (NOTE: helps the commander define

the specified and implied tasks along with the priority of tasks).

If the first phase of inquiry results in a U.S. vote for approving the operation, a second set of criteria will determine

whether to commit U.S. troops to the UN operation:

1) Participation advances U.S. interests (NOTE: helps the commander and lawyer sort out the relative

priorities among competing facets of the mission, helps guide the promulgation of ROE which comply

with the national interest, and helps weight the best allocation of scarce fiscal resources); 2) Personnel,

funds, and other resources are available (NOTE: may assist DoD obtain funding from other executive

agencies in the interagency planning process); 3) U.S. participation is necessary for the success of the

mission; 4) Whether the endstate is definable (NOTE: the political nature of the objective should be as

clearly articulated as possible to guide the commander); 5) Domestic and Congressional support for the

operation exists; and 6) Command and control arrangements are acceptable (NOTE: within defined

legal boundaries).

The last phase of the analysis applies when there is a significant possibility that the operation will commit U.S. forces to

combat:

1) There is a clear determination to commit sufficient forces to achieve the clearly defined objective; 2)

The leaders of the operation possess clear intention to achieve the stated objectives; and 3) There is a

commitment to reassess and continually adjust the objectives and composition of the force to meet

changing security and operational requirements (NOTE: obviously affects the potential for mission

creep and the ongoing security of U.S. forces as well as ROE modifications).

2. Reducing U.S. costs for UN peace operations.

This is the area of greatest congressional power regarding control of military operations.

347 Funding limitations have

helped to check the Security Councils ability to intervene in every conflict. In normal Chapter VI operations, member

states pay obligatory contributions based on a standard assessment (currently 30.4% for the U.S.). In Chapter VII peace

operations, participating States normally pay their own costs of participation. This is the exception to the normal rule.

PDD-25 calls for U.S. contributions to be reduced to 25%. The policy also proposes specific steps for the UN to reduce

the costs of UN peace operations. The Fiscal Year 1998 DoD Authorization Act outlined a specific set of policy goals to

increase allied burdensharing for any nation that has cooperative military relations with the U.S., including basing

arrangements, security arrangements, or mutual participation in multinational military organizations or operations.

348 The

Fiscal Year 1999 DoD Authorization Act amended 10 U.S.C. § 113 to require the Secretary of Defense to prepare a report

detailing the clear and distinct objectives of the United States as well as the set of conditions that define the endpoint of

347 U.S. CONST. art. 1, sec. 8.

348 National Defense Authorization Act for Fiscal Year 1998, § 1221, H. Rep. No. 105-340, at 317 (1997).

Chapter 23

Peace Operations

393
the operation which must accompany any request for supplemental appropriations in support of a contingency likely to

involve more than 500 personnel.349

3. Policy regarding the command and control of U.S. forces.

Command and control of U.S. forces sometimes causes more debate than the questions surrounding U.S.

participation. The policy reinforces the fact that U.S. authorities will relinquish only operational control of U.S. forces

when doing so serves U.S. security interests. The greater the U.S. military role, the less likely we will give control of

U.S. forces to UN or foreign command. Any large scale participation of U.S. forces that is likely to involve combat

should ordinarily be conducted under U.S. command and operational control or through competent regional organizations

such as NATO or ad hoc coalitions. Operation Joint Endeavor presented an unusual twist in that the CINC was the

supporting commander to a regional alliance (NATO). The command and control issues raised by Operation Joint

Endeavor will recur if the UN authorizes regional organizations to execute future Peace Operations.

PDD-25 forcefully states that the President will never relinquish command of U.S. forces. However, the President

retains the authority to release designated U.S. forces to the Operational Control (OPCON) of a foreign commander for

designated missions. When U.S. forces are under the operational control of a UN commander they will always maintain

the capability to report separately to higher U.S. military authorities. This particular provision is in direct

contravention to UN policy. UN policy is that once under UN control, soldiers and units will only report to and seek

orders and guidance through the UN command channels. The policy also provides that commanders of U.S. units

participating in UN operations will refer to higher U.S. authorities orders that are illegal under U.S. or

international law, or are outside the mandate of the mission to which the U.S. agreed with the UN, if they are unable

to resolve the matter with the UN commander. As a practical matter, this means that deployed units are restricted to the

mission limits prescribed in the CJCS Execute Order for the mission. The U.S. reserves the right to terminate

participation at any time or take whatever actions necessary to protect U.S. forces.

The judge advocate must understand the precise definitions of the various degrees of command in order to help

ensure that U.S. commanders do not exceed the lawful authority conveyed by the command and control arrangements of

the CJCS execute order.350 NOTE NATO has its own doctrinal definitions of command relationships which are

similar to the U.S. definitions. FM 100-8 summarizes the NATO doctrine as it relates to U.S. doctrinal terms.351

The Command and Control lines between foreign commanders and U.S. forces represent legal boundaries that the lawyer

should monitor.

COCOM is the command authority over assigned forces vested only in the commanders of combatant commands by

title 10, U.S. Code, section 164, or as directed by the President in the Unified Command Plan (UCP), and cannot be

delegated or transferred. COCOM is the authority of a combatant commander to perform those functions of command

over assigned forces involving organizing and employing commands and forces, assigning tasks, designating objectives,

and giving authoritative direction over all aspects of military operations, joint training (or in the case of USSOCOM,

training of assigned forces), and logistics necessary to accomplish the missions assigned to the command.

OPCON is inherent in COCOM and is the authority to perform those functions of command over subordinate forces

involving organizing and employing commands and forces, assigning tasks, designating objectives, and giving

authoritative direction necessary to accomplish the mission. OPCON includes authoritative direction over all aspects of

military operations and joint training necessary to accomplish missions assigned to the command. NATO OPCON is

more limited than the U.S. doctrinal definition in that it includes only the authority to control the unit in the exact

specified task for the limited time, function, and location.

TACON is the command authority over assigned or attached forces or commands, or military capability made

available for tasking that is limited to the detailed and usually local direction and control of movements or maneuvers

349 Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, § 1212, H. Rep. No. 105-736, at 237 (1998).

350 The precise definitions of the degrees of command authority are contained in Joint Pub 0-2, UNIFIED ACTION ARMED FORCES (UNAAF)(24 February

1995) and Joint Pub 3-0, DOCTRINE FOR JOINT OPERATIONS (1 February 1995).

351 DEPT OF ARMY, FIELD MANUAL 100-8, THE ARMY IN MULTINATIONAL OPERATIONS (24 November 1997)<http://www.atsc-army.org/cgibin/atdl.dll/fm/100-8/default.htm>

Chapter 23

Peace Operations

394
necessary to accomplish assigned missions or tasks. TACON may be delegated to and exercised by commanders at any

echelon at or below the level of combatant command. TACON is inherent in OPCON and allows the direction and control

of movements or maneuvers necessary to accomplish assigned missions or tasks.

Support is a command authority. A support relationship is established by a superior commander between

subordinate commanders when one organization should aid, protect, complement, or sustain another force. Support may

be exercised by commanders at any echelon at or below the level of combatant command. Several categories of support

have been defined for use within a combatant command as appropriate to better characterize the support that should be

given.

4. Reforming and Improving the UN Capability to Manage Peace Operations. The policy recommends 11 steps to

strengthen UN management of peace operations.

5. Improving the U.S. Government Management and Funding of Peace Operations. The policy assigns responsibilities

for the managing and funding of UN peace operations within the U.S. Government. DoD will take lead management and

funding responsibility for those UN operations that involve U.S. combat units and those that are likely to involve combat,

whether or not U.S. troops are involved. DoS will retain lead management and funding responsibility for traditional

peacekeeping that does not involve U.S. combat units. Regardless of who has the lead, DoS remains responsible for the

conduct of diplomacy and instructions to embassies and our UN Mission.

6. Creating better forms of cooperation between the Executive, the Congress, and the American public on peace

operations. This directive looks to increase the flow between the executive branch and Congress, expressing the

Presidents belief that U.S. support for participation in UN peace operations can only succeed over the long term with the

bipartisan support of Congress and the American people.

DOCTRINAL FRAMEWORK

FM 100-23, Peace Operations, is the Armys keystone doctrinal reference on the subject. The key operational

variables are the necessity of using force, degree of impartiality, and relative consent of the parties. These variables

affect every facet of operations and remain fluid throughout any mission. Joint Pub 3-07352 is also a valuable guide.

While not a doctrinal source, the Joint Task Force Commanders Handbook for Peace Operations (16 June 1997) is a

widely disseminated source of lessons learned and operational issues. Chapter V of Joint Pub 3-0, Doctrine for Joint

OperationS (1 February 1995) is an excellent summary of the operational considerations and principles for Military

Operations Other Than War (MOOTW) which directly apply to Peace Operations. The principles for Joint MOOTW are

objective, unity of effort, security, restraint, perseverance, and legitimacy. Chapter V defines the meaning of the

principles of MOOTW and provides excellent illustrations from actual operations.

DEFINITIONS. There is still no universally accepted definition for peacekeeping or of related activities. The absence

of one specific definition has resulted in the term being used to describe almost any type of behavior intended to obtain

what a particular nation regards as peace. There are even slight inconsistencies within U.S. doctrine and other

publications that define peacekeeping and related terms.

Peace Operations

Peace Operations is a new and comprehensive term that covers a wide range of activities. Defined in FM 100-23 as:

an umbrella term that encompasses three types of activities; activities with predominantly diplomatic lead (preventive

diplomacy, peacemaking, peace building) and two complementary, predominately military, activities (peacekeeping and

peace enforcement).

Defined in Joint Pub 3-07.3 as: the umbrella term encompassing peacekeeping, peace enforcement, and any other

military, paramilitary or non-military action taken in support of a diplomatic peacemaking process. Peace operations

primary objective is to create and sustain conditions conducive to peace. The end game is political settlement, not victory

on the battlefield, to create and sustain the conditions in which political and diplomatic activities may proceed.

352 Joint publications can be found electronically at http://www.dtic.mil/doctrine

Chapter 23

Peace Operations

395
Whereas peace operations are authorized under both Chapters VI and VII of the United Nations Charter peace

operations (as defined by 100-23) the doctrinal definition excludes high end enforcement actions where the UN or UN

sanctioned forces have become engaged as combatants and a military solution has now become the measure of success.

An example of such is Desert Storm (i.e. with the start of military operations on 15 January 1991).

Peacekeeping

FM 100-23 and Joint Pub 3-07.3: Military or paramilitary operations that are undertaken with the consent of all

major belligerents, designed to monitor and facilitate implementation of an existing truce agreement and support

diplomatic efforts to reach a long-term political settlement.

In his report, An Agenda for Peace, 17 June 1992, the UN Security General defined peacekeeping as: The

deployment of a UN Presence in the field, hitherto with the consent of all the parties concerned, normally involving

United Nations military and/or police personnel and frequently civilians as well. Peacekeeping is a technique that

expands the possibilities for both the prevention of conflict and the making of peace.

Peacekeeping is conducted under the authority of Chapter VI, UN Charter, and just as the name implies, there must

be a peace to keep. It is intended to maintain calm while giving the peacemakers time to negotiate a permanent settlement

to the underlying dispute and/or assist in carrying out the terms of a negotiated settlement. Therefore, there must be some

degree of stability within the area of operations. Peacekeeping efforts support diplomatic endeavors to achieve or to

maintain peace in areas of potential or actual conflict and often involve ambiguous situations requiring the peacekeeping

force to deal with extreme tension and violence without becoming a participant.

Peacekeeping requires an invitation or, at a minimum, the consent of all the parties to the conflict. Peacekeepers must

remain completely impartial towards all the parties involved. Peacekeeping forces may include unarmed observers,

lightly armed units, police, and civilian technicians. Typical peacekeeping operations may include: observe, record,

supervise, monitor, and occupy a buffer or neutral zone, and report on the implementation of the truce and any violations

thereof. Typical peacekeeping missions include:

- Observing and reporting any alleged violation of the peace agreement.

- Handling alleged cease-fire violations and/or alleged border incidents.

- Conducting regular liaison visits to units within their AO.

- Continuously checking forces within their AO and reporting any changes thereto.

- Maintaining up-to-date information on the disposition of forces within their AO.

- Periodically visiting forward positions; report on the disposition of forces.

- Assisting civil authorities in supervision of elections, transfer of authority, partition of territory, & administration

of civil functions.

Force may only be used in self-defense. Peacekeepers should not prevent violations of a truce or cease-fire agreement by

the active use of force, their presence is intended to be sufficient to maintain the peace.

Peace Enforcement

FM 100-23: The application of military force, or the threat of its use, normally pursuant to international

authorization, to compel compliance with resolutions or sanctions designed to maintain or restore peace and order. An

Agenda for Peace: Actions taken to compel a recalcitrant belligerent to comply with demands of the Security Council.

Employing those measures provided for in Chapter VII of the Charter of the United Nations.

Chapter 23

Peace Operations

396
Peace enforcement is conducted under the authority of Chapter VII, UN Charter, and could include combat, armed

intervention, or the physical threat of armed intervention. In contrast to peacekeeping, peace enforcement forces do not

require consent of the parties to the conflict and they may not be neutral or impartial. Typical missions include:

- Protection of humanitarian assistance.

- Restoration and maintenance of order and stability.

- Enforcement of sanctions.

- Guarantee or denial of movement.

- Establishment and supervision of protected zones.

- Forcible separation of belligerents.

Peacemaking

FM 100-23: A process of diplomacy, mediation, negotiation, or other forms of peaceful settlement that arranges ends

to disputes and resolves issues that led to conflict. An Agenda for Peace: Action to bring hostile parties to agreement,

essentially through such peaceful means as those foreseen in Chapter VI of the Charter of the United Nations.

Peacemaking is strictly diplomacy. Confusion still exists in this area because the former U.S. definition of peacemaking

was synonymous with the definition of peace enforcement.

Preventative Diplomacy

FM 100-23: Diplomatic actions taken in advance of a predictable crisis and aimed at removing the sources of conflict

before violence erupts, or to limit the spread of violence when it occurs. Joint Pub 3-07.3: Diplomatic actions, taken in

advance of a predictable crisis, aimed at resolving disputes before violence breaks out. An Agenda for Peace: Action to

prevent disputes from arising between parties, to prevent existing disputes from escalating into conflicts and to limit the

spread of the latter when they occur.

Used by the UN with the deployment of a force to Macedonia, preventive diplomacy is generally of a short-term

focus (although Macedonia has become a long-term commitment), designed to avert an immediate crisis. It includes

confidence building measures and, while it is diplomatic in theory, it could involve a show of force, preventative

deployments and in some situations, demilitarized ones.

Whereas peacekeeping and preventative deployments have many of the characteristics (i.e. similar rules of

engagement and no or very limited enforcement powers), preventative deployments usually will not have the consent of

all the parties to the conflict and do not need an existing truce or peace plan.

Peace-Building

FM 100-23: Post-conflict actions, predominately diplomatic, that strengthen and rebuild civil infrastructure and

institutions in order to avoid a relapse into conflict. An Agenda for Peace uses the term Post Conflict Peace Building and

is defined as: Action to identify and rebuild support structures which will tend to strengthen and solidify peace in order to

avoid relapse into conflict. Includes many of the traditional civil affairs/nation building operations. Tasks may also

include disarming of former combatants, engineering projects, training of security personnel, monitoring of elections, and

reforming or strengthening of governmental institutions. Peace-building activities may generate additional tasks for units

earlier engaged in peacekeeping or peace enforcement. You will typically find post conflict peace-building taking place

to some degree in all Peace Operations. These activities are prime candidates for causing mission creep. You need to be

sure that such activities are included in the mission and that the proper funds are used.

Other Terms. The reality of modern Peace Operations is that a mission will almost never fit neatly into one doctrinal

category. The judge advocate should use the doctrinal categories only as a guide to reaching the legal issues that affect

Chapter 23

Peace Operations

397
each piece of the operation. Most operations are fluid situations, made up of multifaceted and interrelated missions. The

following is a list of non-doctrinal terms that have been used to place a label on a mission or operation that does not

neatly fall into one of the above definitions.

- Second generation peacekeeping353

- Aggravated peacekeeping

- Wider peacekeeping

- Expanded peacekeeping

- Protective/humanitarian engagement354

- Stability operations

355

LEGAL AUTHORITY & U.S. ROLES IN PEACE OPERATIONS

As stated above, peacekeeping evolved essentially as a compromise out of a necessity to control conflicts without

formally presenting the issue to the UN Security Council for Chapter VII action which would likely be doomed by a

superpower. The UN Charter does not directly provide for peacekeeping. Due to the limited authority of traditional

peacekeeping operations (i.e., no enforcement powers), it is accepted that Chapter VI, Pacific Settlement of Disputes,

provides the legal authority for UN peacekeeping.

Enforcement actions are authorized under Chapter VII of the UN Charter. The authorizing Security Council

resolution will typically refer to Chapter VII in the text and authorize all necessary means/measures (allowing for the

force) to accomplish the mission. Recent examples of Chapter VII operations are Somalia (both UNITAF and UNOSOM

II), UNPROFOR, Haiti (the initial operation, UNMIH is Chapter VI), and IFOR as well as SFOR. The UN must be

acting to maintain or restore international peace and security before it may undertake or authorize an enforcement

action. As the UN becomes more willing and able to use these Chapter VII enforcement powers to impose its will, many

Third World states fear a new kind of colonialism. Although the Charter specifically precludes UN involvement in

matters essentially within the domestic jurisdiction of states, that general legal norm does not prejudice the application

of enforcement measures under Chapter VII.

356

As a permanent member of the Security Council, the U.S. has an important political role in the genesis of Peace

Operations under a UN mandate. The judge advocate serves an important function in assisting leaders in the translation

of vague UN mandates into the specified and implied military tasks on the ground. The mission (and hence the

authorized tasks) must be linked to authorized political objectives

As a corollary to normal UN authorization for an operation, international agreements provide legal authorization for

some Peace Operations. The Dayton Accords and the MFO are examples of this type of Peace Operation. As a general

353 Second generation peacekeeping is a term being used within the UN as a way to characterize peacekeeping efforts designed to respond to

international life in the post-cold war era. This includes difficulties being experienced by some regimes in coping with the withdrawal of super-power

support, weak institutions, collapsing economies, natural disasters and ethnic strife. As new conflicts take place within nations rather than between

them, the UN has become involved with civil wars, secession, partitions, ethnic clashes, tribal struggles, and in some cases, rescuing failed states. The

traditional peacekeeping military tasks are being complemented by measures to strengthen institutions, encourage political participation, protect human

rights, organize elections, and promote economic and social development. United Nations Peace-keeping, United Nations Department of Public

Information DPI/1399-93527-August 1993-35M.

354 Protective/Humanitarian engagement involves the use of military to protect "safe havens" or to effect humanitarian operations. These measures

could be authorized under either Chapter VI or VII of the UN Charter. Bosnia and Somalia are possible examples.

355 This term dates from Special Forces doctrine in the early Vietnam period. The draft version of FM 100-20 adopts the term with reference to Peace

Operations as well as the broader range of MOOTW missions. See Chapter 13, FM 100-5, Operations (14 June 1993); Chapter V, Joint Pub 3-0,

DOCTRINE FOR JOINT OPERATIONS (1 February 1995).

356 UN CHARTER art. 2, para. 7.

Chapter 23

Peace Operations

398
rule of international law, states cannot procure treaties through coercion or the threat of force.357 However, the established

UN Charter mechanisms for authorizing the use of force by UN Member states define the lawful parameters. In other

words, even if parties reach agreement following the use of force (or the threat thereof) or other means of inducement

authorized under Chapter VII, the treaty is binding.

358

Therefore: U.S. participation in Peace Operations falls into these discrete categories:

Participation IN United Nations Chapter VI Operations (UNTSO, UNMIH): This type of operation must

comply with the restraints of the United Nations Participation Act (UNPA).359 § 7 of the UNPA (22 U.S.C. §

287d-1) allows the President to detail armed forces personnel to the United Nations to serve as observers, guards,

or in any other noncombat capacity. § 628 of the Foreign Assistance Act (22 U.S.C. § 2388) is another authority

which allows the head of any agency of the U.S. government to detail, assign, or otherwise make available any

officer to serve with the staff of any international organization or to render any technical, scientific, or

professional advice or service to or in cooperation with such organization.

360 This authority cannot be

exercised by direct coordination from the organization to the unit. Personnel may only be tasked following DoD

approval channels. No more than 1,000 personnel worldwide may be assigned under the authority of § 7 at any

one time, while § 628 is not similarly limited.

Participation IN SUPPORT OF United Nations Peace Operations: These operations are linked to underlying

United Nations authority. Examples are the assignment of personnel to serve with the UN Headquarters in New

York under § 628 or the provision of DoD personnel or equipment to support International War Crimes

Tribunals.

Operations SUPPORTING Enforcement of UN Security Council Resolutions: These operations are generally

pursuant to Chapter VII mandates, and are rooted in the Presidents constitutional authority as the Commander in

Chief. Operation Joint Endeavor was authorized by S.C. Res. 1031, Joint Guard is authorized by UNSCR 1088.

The operations are subject to an almost infinite variety of permutations. For example, Operations Sharp Guard

and Deny Flight enforced embargoes based on Chapter VII.

JUDGE ADVOCATE LEGAL CONSIDERATIONS:

Legal Authority and Mandate

UNDERSTAND THE RELATIONSHIP BETWEEN THE MANDATE AND MISSION!! The first concern for

the judge advocate is to determine the type of operation (peacekeeping, enforcement, etc.), and the general

concept of legal authority for the operation (if UN, Chapter VI or VII). In the context of Operation Restore

Hope, one commander commented that the lawyer is the High Priest of the mission statement. This will define

the parameters of the operation, force composition, ROE, status, governing fiscal authorities, etc. The first

place to start is to assemble the various Security Council resolutions that authorize the establishment of the peace

operation and form the mandate for the Force. The mandate by nature is political and often imprecise, resulting

from diplomatic negotiation and compromise. A mandate of maintain a secure and stable environment (as in

Haiti) can often pose difficulties when defining tasks and measuring success. The mandate should describe the

mission of the Force and the manner in which the Force will operate. The CJCS Execute Order for the

357 Vienna Convention on the Law of Treaties, arts. 51-53 UN Doc. A/Conf. 39/27, reprinted in 8 I.L.M. 679 (1969).

358 Id. at art. 52; Restatement (Third) of the Foreign Relations Law of the United States § 331 cmt. d (1986).

359 P.L. 72-264, codified at 22 U.S.C. § 287.

360 22 U.S.C. §§ 2389 and 2390 contain the requirements for status of personnel assigned under § 628 FAA as well as the terms governing such

assignments. Procedures. E.O. 1213 delegates to the SECDEF, in consultation with SECSTATE, determination authority. Approval of initial detail to

UN operation under this authority resides with SECDEF. The same arrangements with the UN as outlined above for Section 7 UNPA details apply

here. Reimbursements for section 628 details are governed by section 630 of the FAA. Section 630 provides four possibilities: (1) waiver of

reimbursement; (2) direct reimbursement to the service concerned with moneys flowing back to relevant accounts that are then available to expend for

the same purposes; (3) advance of funds for costs associated with the detail; and (4) receipt of a credit against the U.S. fair share of the operating

expenses of the international organization in lieu of direct reimbursement. Current policy is that DoD will be reimbursed the incremental costs

associated with a detail of U.S. military to A UN operation under this authority (i.e., hostile fire pay; family separation allowance) and that State will

credit the remainder against the U.S. peacekeeping assessment (currently paid at 30.4% of the overall UN PKO budget).

Chapter 23

Peace Operations

399
Operation is the primary source for defining the mission, but it will usually reflect the underlying UN

mandate. The mandate may also:

- Include the tasks of functions to be performed.

- Nominate the force CDR and ask for the Councils approval.

- State the size and organization of the Force.

- List those states that may provide contingents.

- Outline proposals for the movement and maintenance of the Force, including states that might provide transport

aircraft, shipping, and logistical units.

- Set the initial time limit for the operation.

- Set arrangements for financing the operations.

Aside from helping commanders define the specified and implied tasks, the mandate outlines the parameters of the

authorized mission. Thus, the mandate helps the lawyer and comptroller define the lawful uses of U.S. military O&M

funds in accomplishing the mission. In todays complex contingencies, the UN action may often be supplemented by

subsequent agreements between the parties which affect the legal rights and duties of the military forces. UNSCR 1088

applies to SFOR at the time of this writing, but references the General Framework Agreement for Peace (Dayton

Accords) as well as the Peace Implementation Council Agreements, signed in Florence on 14 June 1996.

Chain of Command Issues

U.S. Commanders may never take oaths of Loyalty to the UN or other organization.361

Force Protection is an inherent aspect of command that is nowhere prescribed in Title 10.

Limitations under PDD-25: A foreign commander cannot change a mission or deploy U.S. forces outside the area

designated in the CJCS deployment order, separate units, administer discipline, or modify the internal organization of

U.S. forces.

In a pure Chapter VI Peacekeeping Operation, command originates from the authority of the Security Council to the

Secretary-General, and down to the Force Commander. The Secretary-General is responsible to the Security Council for

the organization, conduct, and direction of the force, and he alone reports to the Security Council about it. The SecretaryGeneral decides the forces tasks and is charged with keeping the Security Council fully informed of developments

relating to the force. The Secretary-General appoints the force commander, who conducts the day to day operations, all

policy matters are referred back to the Secretary-General. In many operations the Secretary-General may also appoint a

civilian Special Representative to the Secretary General (SRSG) to coordinate policy matters and may also serve as the

Head of Mission. The relationship between the special representative and the military force commander depends on the

operation, and the force commander may be subordinate to the special representative. In some cases the military force

commander may be dual hatted and also serve as the head of mission. In Haiti, the force commander was subordinate to

the SRSG, and equal in rank to the UN Administrative Officer (who controlled the funds) and the Civilian Police

Commissioner.

In most Chapter VII enforcement operations,(e.g. Desert Shield/Storm, Somalia, Haiti, and IFOR/SFOR, to name a

few), the Security Council will authorize member states or a regional organization to conduct the enforcement operation.

The authorizing Security Council Resolution provides policy direction, but military command and control remains with

member states or a regional organization. Under the Dayton Peace Accord, sanctioned by UN Security Council

361 The UN asked MG Kinzer to take such an oath of loyalty during UNMIH, and the judge advocate coordinated with CJCS to prevent the taking of a

foreign oath. The same issue has surfaced in the context of NATO operations under the PFP SOFA (with the same result). See also 22 U.S.C. § 2387.

Chapter 23

Peace Operations

400
Resolution 1088, SFOR operates under the authority of, and is subject to, the direction and political control of the North

Atlantic Council.

Mission Creep

Ensure that the mission, ROE, and fiscal authority are meshed properly. Mission creep comes in two forms. First,

new or shifting guidance or missions that require different military operations than what was initially planned. This kind

of mission creep comes from above, and you as Judge Advocate, cannot prevent it, just help control its impact. For

instance, do the ROE need to be modified to match the changed mission (i.e., a changed or increased threat level) and are

there any status or SOFA concerns. An example might be moving from peacekeeping (monitoring a cease-fire) to peace

enforcement (enforcing a cease-fire).

The other potential type of mission creep occurs when attempting to do more than what is allowed in the current

mandate and mission. This usually comes from a commander wanting to do good things (nation building) in his AO:

rebuilding structures, training local nationals, and other activities which may be good for the local population, but outside

the mission. This problem typically manifests itself in not having the right kind of money to pay for these types of

assistance. In Bosnia, there is no generic authority for humanitarian assistance operations, and Judge Advocates have

helped prevent mission expansion that could alter the underlying strategic posture of SFOR as an essentially neutral

interpositional force.

Status of Forces/Status of Mission Agreement

Know the Status of U.S. Forces in the AO & Train Them Accordingly

Notify the CINC and State Department before negotiating or beginning discussions with a foreign government as

required by State Department Circular 175.

Watch for Varying Degrees of Status for Supporting Units on the Periphery of the AO

This is likely the source for determining who is responsible for paying claims.

The necessity for a SOFA (termed a SOMA in Chapter VI operations commanded by the UN ) depends on the type

of operation. Enforcement operations do not depend on, and may not have the consent of the host authorities, and

therefore will not normally have a SOFA. Most other operations should have a SOFA/diplomatic note/or other

international agreement to gain some protection for military forces from host nation jurisdiction. AGREEMENTS

SHOULD INCLUDE LANGUAGE WHICH PROTECTS CIVILIANS WHO ARE EMPLOYED BY OR

ACCOMPANY U.S. FORCES.

In most instances the SOFA will be a bilateral international agreement between the UN (if UN commanded) or the

U.S. and the host nation(s). In UN operations the SOFA will usually be based on the Model Status of Forces Agreement.

The SOFA should include the right of a contingent to exercise exclusive criminal jurisdiction over its military personnel;

excusal from paying various fees, taxes, and customs levies; and the provision of installations and other required facilities

to the Force by the host nation.

The SOFA/SOMA may also include:

- The international status of the UN Force and its members.

- Entry and departure permits to and from the HN.

- Identity documents.

- The right to carry arms as well as the authorized type(s) of weapons.

- Freedom of movement in the performance of UN service.

Chapter 23

Peace Operations

401
- Freedom of movement of individual members of the force in the HN.

- The utilization of airports, harbors, and road networks in the HN.

- The right to operate its own communications system across the radio spectrum.

- Postal regulations.

- The flying of UN and national flags.

- Uniform regulations.

- Permissions to operate UN vehicles without special registration.

- Military Police.

- General supply and maintenance matters (imports of equipment, commodities, local procurement of provisions

and POL.

- Matters of compensation (in respect of the HNs property).

The UN (and the U.S.) entry into a host nation may precede the negotiation and conclusion of a SOFA. Sometimes

there may be an exchange of Diplomatic Notes, a verbal agreement by the host authorities to comply with the terms of the

model SOFA even though not signed, or just nothing at all.

TWO DEFAULT SOURCES OF LEGAL STATUS: (1) The Convention on the Safety of United Nations and

Associated Personnel. (see infra) Current status: 43 signatories, 23 ratifications. The treaty entered into force on 15

January 1999. The convention requires States to release captured personnel, to treat them in accordance with the 1949

Geneva Convention of Prisoners of War while in custody, and imposes criminal liability on those who attack

peacekeepers or other personnel acting in support of UN authorized operations. The Convention will apply in UN

operations authorized under Chapter VI or VII. The Convention will not apply in enforcement operations under Chapter

VII in which any of the UN personnel are engaged as combatants against organized armed forces and to which the law

of international armed conflict applies. (2) The Convention on the Privileges and Immunities of the United Nations,

1946 (see infra) Article VI § 22 defines and explains the legal rights of United Nations personnel as Experts on

Mission. In particular, Experts on Mission are NOT prisoners of war and therefore cannot lawfully be detained or

have their mission interfered with by any party.

Laws of War.

It is the UN and U.S. position that Chapter VI operations are not international armed conflict (requiring the

application of the Geneva Conventions) as between the peacekeepers and any of the belligerent parties. The Geneva

Conventions may of course apply between the belligerent parties. In Chapter VII operations, the answer will depend on

the situation. Are the UN personnel engaged as combatants against organized armed forces (example Desert Storm)? If

the answer is no, then the Geneva Conventions do not apply as between the UN Forces and the belligerent parties. In

Somalia, the U.S. position was that the Geneva Conventions did not apply, it was not international armed conflict and the

U.S. was not an occupying force. However, the fourth Geneva Convention (the civilians convention) was used to help

guide U.S. obligations to the local nationals. In NATOs enforcement of the no-fly zone and subsequent bombing

campaign over Bosnia, it was the UN, NATO, and U.S. position that it was not armed conflict as between the NATO

forces and the belligerents. The aircrew were in an expert on mission status and they could not be fired upon or kept

prisoner. If taken into custody, they must be immediately released. Whether the Geneva Conventions do or do not

legally apply, the minimum humanitarian protections contained within the Geneva Conventions will always apply.

As a matter of U.S. policy (CJCSI 5801.01), U.S. forces will comply with the law of war during the conduct of all

military operations and related activities in armed conflict, however such conflicts are characterized, and unless otherwise

Chapter 23

Peace Operations

402
directed by competent authorities, will apply law of war principles during all operations that are characterized as Military

Operations Other Than War.

Rules of Engagement

Pure Chapter VI missions: The two principal tenets are the use of force for self-defense only, and total impartiality.

The use of deadly force is justified only under situations of extreme necessity (typically in self-defense), and as a last

resort when all lesser means have failed to curtail the use of violence by the parties involved. The use of unnecessary or

illegal force undermines the credibility and acceptability of a peacekeeping force to the host nations, the participants in

the dispute, and within the international community. It may escalate the level of violence in the area and create a situation

in which the peacekeeping force becomes part of the local problem. The use of force must be carefully controlled and

restricted in its application. Peacekeeping forces normally have no mandate to prevent violations of an agreement

by the active use of force. The passive use of force employs physical means that are not intended to harm individuals,

installations, or equipment. Examples are the use of vehicles to block the passage of persons or vehicles and the removal

of unauthorized persons from peacekeeping force positions. The active use of force employs means that result in physical

harm to individuals, installations, or equipment. Examples are the use of batons, rifle butts, and weapons fire.

Peace Enforcement: Peace enforcement operations on the other hand, may have varying degrees of expanded ROE

and may allow for the use of force to accomplish the mission (i.e. the use of force beyond that of self-defense). In peace

enforcement active force may be allowed to accomplish all or portions of the mission. See the chapter on Rules of

Engagement for tips in drafting ROE, training ROE, and sample peace operations ROE. See also the CLAMO ROE

Handbook described in the chapter on CLAMO.

Funding Considerations

FIND POSITIVE AUTHORITY FOR EACH FISCAL OBLIGATION AND APPROPRIATE FUNDS TO

ALLOCATE AGAINST THE STATUTORY AUTHORITY!! (Judge advocates from Operation Joint Guard

report that these issues take up to 90% of their time).

Be certain that Congress receives at least 15 days prior notice before you expend any DoD funds to transfer to

another nation or an international organization any defense articles or services.

362

Recognize that you can use simplified acquisition procedures for expenditures up to $200,000 outside the U.S. in

support of a contingency operation,363 or a humanitarian or peacekeeping operation (defined for this purpose as

operations under Chapter VI or VII).

364

Recognize when the U.S. will be required to seek reimbursement for its expenses, ensure that an adequate

accounting system is in place, and diligently prepare legal opinions documenting the spending decisions reached

throughout the deployment.

Do not allow O&M funds to be obligated directly or indirectly to pay the costs of a Chapter VI Peacekeeping

Assessment (Congress makes a special appropriation as necessary) or to pay any U.S. arrearages to the United

Nations.365

AUTHORITIES FOR EXPENDITURES TO SUPPORT NON-U.S. FORCES DURING PEACE

OPERATIONS:

362 § 8080 of the FY 98 DoD Appropriations Act, P.L. 105-56. The provision applies to any international peacekeeping or peace enforcement activity

under the authority of Chapter VI or VII. In practice, DoD has executed a blanket agreement, the judge advocate should ensure that the recipient and

DoD good or service is covered by the notification to Congress.

363 Defined in 10 U.S.C. § 127a. Allows units receiving support from elements of the Department of Defense during statutorily defined operations to

waive reimbursement to the Defense Business Operations Fund.

364 10 U.S.C. § 2302(7).

365 10 U.S.C. § 405.

Chapter 23

Peace Operations

403
SECTION 7 OF THE UNITED NATIONS PARTICIPATION ACT (UNPA) (22 U.S.C. § 287D-1).

A. Authority. Authorizes the President, upon request of the UN, to furnish services, facilities, or other assistance

in support of UN activities directed to the peaceful settlement of disputes and not involving the employment of

armed forces contemplated by Chapter VII. Support is provided notwithstanding the provisions of any other

law.

B. Procedures.

1. Executive Order (E.O.) 10106, dated 19 Jan 1951, authorizes SECSTATE to request SECDEF to provide

assistance requested by the UN. In practice, the UN will issue a Letter of Assist (LOA) (i.e., funded-order

form used by the UN to request goods and services directly from a member State) to the U.S. Mission to the

UN in New York

2. (U.S./UN). U.S./UN forwards the LOA to the State Department where it is reviewed and transmitted to

DoD with a cover letter recommendation as to approval and funding. Within DoD, USD(P) coordinate UN

request. In some cases, SECDEF has delegated to USD(P) authority to approve. Upon approval, SECDEF

will direct a military department to implement.

3. Support provided to the UN under Section 7 authority does not require the negotiation and conclusion of an

overcharging agreement but is handled solely on the basis of the UNs LOA. Army procedures for

processing UN requests under Section 7 of the UNPA are set out in DA PAM 700-15, dated 1 May 1986.

C. Requirements.

1. Statute prescribes that reimbursement shall ordinarily be required from the UN Reimbursements flow back

to appropriate service accounts. Reimbursement may be waived, however, when the President finds

exceptional circumstances or that such waiver is in the national interest. E.O. 10206 delegates to

SECSTATE authority to waive reimbursement after consultation with SECDEF.

2. PDD-25 on reforming multilateral peace operations sets current policy. PDD-25 has modified E.O. 10206

to the extent that current policy is to seek reimbursement for all assistance provided by DoD to assessed UN

peace operations. Reimbursement only waived in exceptional cases and when both SECSTATE and

SECDEF agree. In the case of disagreement, final decision resides with the President.

SECTION 607 OF THE FOREIGN ASSISTANCE ACT OF 1961(FAA) (22 U.S.C. § 2357).

A. Authority. Upon determination of the President, that it is consistent with and in furtherance of the purposes of

Subchapter I of the FAA, any agency of the U.S. government is authorized to furnish commodities and

services to, inter alia, friendly foreign countries and to international organizations. Peacekeeping and disaster

relief efforts are examples of Subchapter I purposes. The term commodities and services has been interpreted

very broadly.

B. Procedures.

1. The determination required by the statute must be made each time a new UN operation will be supported

under this authority. The authority for making this determination has been delegated to the Director of the

U.S. Trade and Development Agency by E.O. 12163, dated 29 Sep. 1979.

2. Each new UN operation requires the negotiation and conclusion of a separate 607 agreement with the UN

These 607 agreements set the overall terms and conditions that govern the provision of assistance and are

currently in place to support UN authorized operations in Somalia, Former Republic of Yugoslavia,

Rwanda, and Haiti. The UN LOA procedure is the ordering mechanism specified in those agreements.

NOTE: 607 agreements are international agreements negotiated under the authority of SecState (often

negotiated by DoD personnel under Circular 175 authority).

Chapter 23

Peace Operations

404
C. Reimbursements.

1. Under section 607, assistance may only be furnished on an advance of funds or reimbursable basis.

Reimbursement from the UN cannot be waived. (THEREFORE THE UNITS MUST CAPTURE AND

REPORT INCREMENTAL COSTS OF PROVIDING SUCH SUPPORT).

2. Reimbursements received may be deposited by the service providing the assistance back into the

appropriation originally used or, if received within 180 days of the close of the fiscal year in which the

assistance was furnished, into the current account concerned. These amounts then remain available for the

purposes for which they were appropriated. Reimbursements received after this 180-day period cannot be

retained by DoD and must be deposited in the miscellaneous receipts account of the general treasury (see:

GAO Report No. GAO/NSIAD-94-88. Cost of DoD Operations in Somalia, March 1994.

DRAWDOWN AUTHORITIES THAT PROVIDE LEGAL GROUNDS FOR EXPENDING O&M FUNDS FOR

SPECIFIED STATUTORY PURPOSES (GENERALLY WITH ONLY PARTIAL OR NO REIMBURSEMENT).

A. Section 506(a)(1) Foreign Assistance Act366 (Military Assistance).

1. Requirement for Use. Presidential determination and report, in advance to Congress that:

a.

b.

An unforeseen emergency exists that requires immediate military assistance to a foreign country or

international organization; and

The emergency requirement cannot be met under the Arms Export Control Act (AECA) or any other

law.

2. Forms of Assistance. President may authorize the drawdown of defense articles and services from the

stocks of DoD, and military education and training from DoD (ergo, NO AUTHORITY TO CONTRACT

UNDER THE DRAWDOWN AUTHORITY, with one new exception: Congress amended this statute

to allow the supply of commercial transportation and related services that are acquired by contract

for the purposes of the drawdown in question if the cost to acquire such commercial transportation

and related services is less than the cost to the United States Government of providing such services

from existing agency assets).

367

3. Limitations.

Purpose. Drawdown must be for a FAA subchapter II purpose. These include: military assistance

(CH 2); peacekeeping (CH 6); and anti-terrorism (CH 8).

a.

b. Ceiling Amount. Assistance provided under this section is limited to an aggregate value of $100

million in any fiscal year.

B. Section 506(a)(2) Foreign Assistance Act368 (Any Agency of the U.S. Government).

1. Requirement for Use. Presidential determination and report (IAW § 652 FAA), in advance to Congress

that it is in the national interests of the United State.

366 22 U.S.C. § 2318. For example, President Clinton authorized drawdowns in support of the Rapid Reaction Force in Bosnia (60 Fed. Reg. 35465, 60

Fed. Reg 44721, & 60 Fed. Reg 40257) and in support of ECOMOG Peacekeeping in Liberia (61 Fed. Reg. 56859 & 61 Fed. Reg. 56861)

367 Foreign Operations Authorization Act, Fiscal Year 1998, 111 Stat. 2433, § 525.

368 22 U.S.C. § 2318.

Chapter 23

Peace Operations

405
2. Forms of Assistance. President may authorize the drawdown of articles and services from the inventory

and resources of any agency of the U.S. government, and military education and training from DoD

(ERGO, NO AUTHORITY TO CONTRACT UNDER THE DRAWDOWN AUTHORITY).

3. Limitations.

Purpose. Drawdown must be for the purposes and under the authority of FAA Chapter 8 (relating to

international narcotics control), Chapter 9 (relating to international disaster assistance), or The

Migration and Refugee Assistance Act of 1962.

a.

b. Ceiling Amount. Assistance provided under this section is limited to an aggregate value of $150

million in any fiscal year(of which no more than $75 million can come from DoD).

Contract Authority. Section 506(a) provides neither funds nor contract authority. It does not

authorize new procurement to provide the material, services, or training directed (DoD 5105.38-M,

section 1102).

c.

2.

3.

a.

C. Section 551 Foreign Assistance Act369

1. Requirements for Use. President decides to furnish assistance to friendly countries and international

organizations, on such terms and conditions as he may determine, for peacekeeping operations and other

programs carried out in the furtherance of the national security interests of the U.S.. 22 U.S.C. § 2348.

Limitations. No more than $5 million may be used to reimburse DoD for expenses incurred pursuant to § 7

of the UN Participation Act.

D. Section 552(c)(2)Foreign Assistance Act 370 (Peacekeeping).

1. Requirement for Use. Presidential determination that:

a. As a result of an unforeseen emergency the provision of assistance under part II of the FAA (Military or

Security Assistance), in excess of the funds otherwise available for such assistance, is important to the

U.S. national interests; and

b. An unforeseen emergency requires the immediate provision of assistance; and

c. Reports, in advance, to Congress as required by section 652 of the FAA (22 U.S.C. § 2411).

2. Forms of Assistance. President may authorize the drawdown of commodities and services from the

inventories and resources of any U.S. Government agency.

Limitations.

Purpose. Drawdown must be for a purpose and under the authority of Chapter 6, Peacekeeping

Operations, of Part II of the FAA. Congress provided a special allowance of up to $25 million in

commodities and services for the United Nations War Crimes Tribunal established with regard to the

Former Yugoslavia. This special drawdown authority is subject to two conditions 1) the President

makes a special determination that DoD goods or services will contribute to a just resolution of the

charges of genocide or other violations of international humanitarian law and 2) the Secretary of State

submits reports every 180 days to the Committees on Appropriations describing the steps the U.S. is

369 22 U.S.C. § 2348.

370 22 U.S.C. § 2348a.

Chapter 23

Peace Operations

406
taking to provide information concerning the crimes of genocide and other violations of international

law.371

b. Ceiling Amount. Assistance provided under this section is limited to an aggregate value of $25 million

in any fiscal year.

E. Miscellaneous Authorities.

1. Section 451 Foreign Assistance Act Unanticipated Contingency Authority.372 Section 451 of the FAA

is a special presidential authority to use up to $25 million in any fiscal year of funds made available for FAA

purposes to provide FAA-authorized assistance for unanticipated contingencies. These funds may be used

notwithstanding any other provisions of law. Their use is virtually unrestricted. There is a congressional

reporting requirement associated with the use of this authority.

2. Section 632 Transfer Authority. Section 632 of the FAA authorizes the President to allocate or transfer

funds appropriated for FAA purposes to any agency of the U.S. Government for carrying out the purposes of

the FAA. Such funds may be expended by that agency pursuant to authorities conferred in the FAA or

under authorities specific to that agency.

BOTTOM LINE: During a Chapter VI, the judge advocate must be familiar with UN purchasing procedures and what

support should be supplied by the UN or host nation. The judge advocate should review the Aide-Memoire/Terms of

Reference. Aide-Memoire sets out the Mission force structure and requirements in terms of manpower and equipment.

It provides the terms of reimbursement from the UN to the Contingents for the provision of personnel and equipment.

Exceeding the Aide-Memoire in terms of either manpower or equipment could result in the UNs refusal to reimburse for

the excess. Not following proper procedure or purchasing materials that should be provided from other sources may

result in the U.S. not being reimbursed by the UN. The UN Field Administration Manual will provide guidance. In

general, the unit must receive a formal LOA in order to receive reimbursement under § 7 of the UNPA. The unit can

lawfully expend its own O&M funds for mission essential goods or services which the UN refuses to allow (no LOA

issued).

During Chapter VI or Chapter VII operations, the judge advocate should aggressively weave lawful funding authorities

with available funds in pursuit of the needs of the mission.

371 P.L. 105-118, 111 Stat. 2386 § 553 (1997).

372 22 U.S.C. § 2261.

Chapter 23

Peace Operations

407
APPENDIX A

CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS, 1

UNTS 15, 13 FEBRUARY 1946.

Whereas Article 104 of the Charter of the United Nations provides that the Organization shall enjoy in the territory of

each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its

purposes and

Whereas Article 105 of the Charter of the United Nations provides that the Organization shall enjoy in the territory of

each of its Member such privileges and immunities as are necessary for the fulfillment of its purposes and that

representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such

privileges and immunities as are necessary for the independent exercise of their functions in connection with the

Organization.

Consequently the General Assembly by a Resolution adopted on the 13 February 1946, approved the following

Convention and proposed it for accession by each Member of the United Nations.

Article I

Juridical Personality

SECTION 1. The United Nations shall possess juridical personality. It shall have the capacity:

(a) to contract;

(b) to acquire and dispose of in movable and movable property;

(c) to institute legal proceedings.

Article II

Property, Funds and Assets

SECTION 2. The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy

immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity

shall extend to any particular case it has expressly waived its immunity. It is, however, understood that no waiver of

immunity shall extend to any measure of execution.

SECTION 3. The premises of the United Nations shall be inviolable. The property and assets of the United Nations,

wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any

other form of interference, whether by executive, administrative, judicial or legislative action.

SECTION 4. The archives of the United Nations, and in general all documents belonging to it or held by it, shall be

inviolable wherever located.

SECTION 5. Without being restricted by financial controls, regulations or moratoria of any kind,

(a) The United Nations may hold funds, gold or currency of any kind and operate accounts in any currency;

(b) The United Nations shall be free to transfer its funds, gold or currency from one country to another or within any

country and to convert any currency held by it into any other currency.

SECTION 6. In exercising its rights under Section 5 above, the United Nations shall pay due regard to any

representations made by the Government of any Member insofar as it is considered that effect can be given to such

representations without detriment to the interests of the United Nations.

SECTION 7. The United Nations, its assets, income and other property shall be:

(a) Exempt from all direct taxes; it is understood however, that the United Nations will not claim exemption from

taxes which are, in fact, no more than charges for public utility services;

Chapter 23, Appendix A

Peace Operations

408
(b) Exempt from customs duties and prohibitions and restrictions on imports and exports in respect of articles

imported or exported by the United Nations for its official use. It is understood, however, that articles imported under

such exemption will not be sold in the country into which they were imported except under conditions agreed with the

Government of that country;

(c) Exempt from customs duties and prohibitions and restrictions on imports and exports in respects of its

publications.

SECTION 8. While the United Nations will not, as a general rule, claim exemption from excise duties and from taxes on

the sale of movable and immovable property which form part of the price to be paid, nevertheless when the United

Nations is making important purchases for official use of property on which such duties and taxes have been charged or

are chargeable, Members will, whenever possible, make appropriate administrative arrangements for the remission or

return of the amount of duty or tax.

Article III

Facilities in Respect of Communications

SECTION 9. The United Nations shall enjoy in the territory of each Member for its official communications treatment not

less favourable than that accorded by the Government of that Member to any other Government including its diplomatic

mission in the matter of priorities, rates and taxes on mails, cables, telegrams, radiograms, telephotos, telephones and

other communications; and press rates for information to the press and radio. No censorship shall be applied to the official

correspondence and other official communications of the United Nations.

SECTION 10. The United Nations shall have the right to use codes and to dispatch and receive its correspondence by

courier or in bags, which shall have the same immunities and privileges as diplomatic couriers and bags.

Article IV

The Representatives of Members

SECTION 11. Representatives of Members to the principal and subsidiary organs of the United Nations and to

conferences convened by the United Nations, shall, while exercising their functions and during the journey to and from

the place of meeting, enjoy the following privileges and immunities:

(a) Immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words

spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every

kind;

(b) Inviolability for all papers and documents;

(c) The right to use codes and to receive papers or correspondence by courier or in sealed bags;

(d) Exemption in respect of themselves and their spouses from immigration restrictions, aliens registration or

national service obligations in the State they are visiting or through which they are passing in the exercise of their

functions;

(e) The same facilities in respect of currency or exchange restrictions as are accorded to representatives of foreign

governments on temporary official missions;

(f) The immunities and facilities in respect of their personal baggage as are accorded to diplomatic envoys, and also;

(g) Such other privileges, immunities and facilities not inconsistent with the foregoing as diplomatic envoys enjoy,

except that they shall have no right to claim exemption from customs duties on goods imported (otherwise than as part of

their personal baggage) or from excise duties or sales taxes.

SECTION 12. In order to secure, for the representatives of Members to the principal and subsidiary organs of the United

Nations and to conferences convened by the United Nations, complete freedom of speech and independence in the

discharge of their duties, the immunity from legal process in respect of words spoken or written and all acts done by them

in discharging their duties shall continue to be accorded, notwithstanding that the persons concerned are no longer the

representatives of Members.

Chapter 23, Appendix A

Peace Operations

409
SECTION 13. Where the incidence of any form of taxation depends upon residence, periods during which the

representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by

the United Nations are present in a state for the discharge of their duties shall not be considered as periods of residence.

SECTION 14. Privileges and immunities are accorded to the representatives of Members not for the personal benefit of

the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the

United Nations. Consequently a Member non only has the right but is under a duty to waive the immunity of its

representative in any case where in the opinion of the Member the immunity would impede the course of justice, and it

can be waived without prejudice to the purpose for which the immunity is accorded.

SECTION 15. The provisions of Sections 11, 12 and 13 are not applicable as between a representative and the authorities

of the state of which he is a national or of which he is or has been the representative.

SECTION 16. In this article the expression & representatives; shall be deemed to include all delegates, deputy

delegates, advisers, technical experts and secretaries of delegations.

Article V

Officials

SECTION 17. The Secretary-General will specify the categories of officials to which the provisions of this Article and

Article VII shall apply. He shall submit these categories to the General Assembly. Thereafter these categories shall be

communicated to the Governments of all Members. The names of the officials included in these categories shall from

time to time be made known to the Governments of Members.

SECTION 18. Officials of the United Nations shall:

(a) Be immune from legal process in respect of words spoken or written and all acts performed by them in their

official capacity;

(b) Be exempt from taxation on the salaries and emoluments paid to them by the United Nations;

(c) Be immune from national service obligations;

(d) Be immune, together with their spouses and relatives dependent on them, from immigration restrictions and alien

registration;

(e) Be accorded the same privileges in respect of exchange facilities as are accorded to the officials of comparable

ranks forming part of diplomatic missions to the Government concerned;

(f) Be given, together with their spouses and relatives dependent on them, the same repatriation facilities in time of

international crisis as diplomatic envoys;

(g) Have the right to import free of duty their furniture and effects at the time of first taking up their post in the

country in question.

SECTION 19. In addition to the immunities and privileges specified in Section 18, the Secretary-General and all

Assistant Secretaries- General shall be accorded in respect of themselves, their spouses and minor children, the privileges

and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.

SECTION 20. Privileges and immunities are granted to officials in the interests of the United Nations and not for the

personal benefit of the individuals themselves. The Secretary-General shall have the right and the duty to waive the

immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be

waived without prejudice to the interests of the United Nations. In the case of the Secretary-General, the Security Council

shall have the right to waive immunity.

SECTION 21. The United Nations shall cooperate at all times with the appropriate authorities of Members to facilitate the

proper administration of justice, secure the observance of police regulations and prevent the occurrence of any abuse in

connection with the privileges, immunities and facilities mentioned in this Article.

Chapter 23, Appendix A

Peace Operations

410
Article VI

Experts on Missions for the United Nations

SECTION 22. Experts (other than officials coming within the scope of Article V) performing missions for the United

Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions

during the period of their missions, including the time spent on journeys in connection with their missions. In particular

they shall be accorded:

(a) Immunity from personal arrest or detention and from seizure of their personal baggage;

(b) In respect of words spoken or written and acts done by them in the course of the performance of their mission,

immunity from legal process of every kind. This immunity from legal process shall continue to be accorded

notwithstanding that the persons concerned are no longer employed on missions for the United Nations;

(c) Inviolability for all papers and documents;

(d) For the purpose of their communications with the United Nations, the right to use codes and to receive papers or

correspondence by courier or in sealed bags;

(e) The Same facilities in respect of currency or exchange restrictions as are accorded to representatives of foreign

governments on temporary official missions;

(f) The same immunities and facilities in respect of their personal baggage as are accorded to diplomatic envoys.

SECTION 23. Privileges and immunities are granted to experts in the interests of the United Nations and not for the

personal benefit of the individuals themselves. The Secretary-General shall have the right and the duty to waive the

immunity of any expert in any case where, in his opinion, the immunity would impede the course of justice and it can be

waived without prejudice to the interests of the United Nations.

Article VII

United Nations Laissez-Passer

SECTION 24. The United Nations may issue United Nations laissez-passer to its officials. These laissez-passer shall be

recognized and accepted as valid travel documents by the authorities of Members, taking into account the provisions of

Section 25.

SECTION 25. Applications for visas (where required) from the holders of United Nations laissez-passer, when

accompanied by a certificate that they are traveling on the business of the United Nations, shall be dealt with as speedily

as possible. In addition, such persons shall be granted facilities for speedy travel.

SECTION 26. Similar facilities to those specified in Section 25 shall be accorded to experts and other persons who,

though not the holders of United Nations laissez-passer, have a certificate that they are traveling on the business of the

United Nations.

SECTION 27. The Secretary-General, Assistant Secretaries-General and Directors traveling on United Nations laissezpasser on the business of the United Nations shall be granted the same facilities as are accorded to diplomatic envoys.

SECTION 28. The provisions of this article may be applied to the comparable officials of specialized agencies if the

agreements for relationship made under Article 63 of the Charter so provide.

Article VIII

Settlement of Disputes

SECTION 29. The United Nations shall make provisions for appropriate modes of settlement of:

(a) Disputes arising out of contracts or other disputes of a private law character to which the United Nations is a

party;

(b) Disputes involving any official of the United Nations who by reason of his official position enjoys immunity, if

immunity has not been waived by the Secretary-General.

Chapter 23, Appendix A

Peace Operations

411
SECTION 30. All differences arising out of the interpretation or application of the present convention shall be referred to

the international Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of

settlement. If a difference arises between the United Nations on the one hand and a Member on the other hand, a request

shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and

Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the parties.

Final Article

SECTION 31. This convention is submitted to every Member of the United Nations for accession.

SECTION 32. Accession shall be affected by deposit of an instrument with the Secretary-General of the United Nations

and the Convention shall come into force as regards each Member on the date of deposit of each instrument of accession.

SECTION 33. The Secretary-General shall inform all Members of the United Nations of the deposit of each accession.

SECTION 34. It is understood that, when an instrument of accession is deposited on behalf of any Member, the Member

will be in a position under its own law to give effect to the terms of this Convention.

SECTION 35. This convention shall continue in force as between the United Nations and every Member which has

deposited an instrument of accession for so long as that Member remains a Member of the United Nations, or until a

revised general convention has been approved by the General Assembly and that Member has become a party to this

revised Convention.

SECTION 36. The Secretary-General may conclude with any Member or Member supplementary agreements adjusting

the provisions of this Convention so far as that Member or those Members are concerned. These supplementary

agreements shall in each case be subject to the approval of the General Assembly.

Chapter 23, Appendix A

Peace Operations

412
APPENDIX B

CONVENTION ON THE SAFETY OF UNITED NATIONS AND ASSOCIATED

PERSONNEL, G.A. RES. 49/59, 49 UN GAOR SUPP. (NO. 49) AT 299, UN DOC. A/49/49

(1994).

The General Assembly,

Considering that the codification and progressive development of international law contributes to the implementation of

the purposes and principles set forth in Articles 1 and 2 of the Charter of the United Nations,

Gravely concerned at the increasing number of attacks on United Nations and associated personnel that have caused death

or serious injury,

Bearing in mind that United Nations operations may be conducted in situations that entail risk to the safety of United

Nations and associated personnel,

Recognizing the need to strengthen and to keep under review arrangements for the protection of United Nations and

associated personnel,

Recalling its resolution 48/37 of 9 December 1993, by which it established the Ad Hoc Committee on the Elaboration of

an International Convention Dealing with the Safety and Security of United Nations and Associated Personnel, with

particular reference to responsibility for attacks on such personnel,

Taking into account the report of the Ad Hoc Committee, in particular the revised negotiating text resulting from the work

of the Ad Hoc Committee,

Recalling its decision, in accordance with the recommendation of the Ad Hoc Committee, to re-establish, at its current

session, a working group within the framework of the Sixth Committee to continue consideration of the revised

negotiating text and of proposals relating thereto,

Having considered the text of the draft convention prepared by the working group and submitted to the Sixth Committee

for consideration with a view to its adoption,

1. Adopts and opens for signature and ratification, acceptance or approval, or for accession, the Convention on the

Safety of United Nations and Associated Personnel, the text of which is annexed to the present resolution;

2. Urges States to take all appropriate measures to ensure the safety and security of United Nations and associated

personnel within their territory;

3. Recommends that the safety and security of United Nations and associated personnel be kept under continuing

review by all relevant bodies of the Organization;

4. Underlines the importance it attaches to the speedy conclusion of a comprehensive review of arrangements for

compensation for death, disability, injury or illness attributable to peace-keeping service, with a view to developing

equitable and appropriate arrangements and to ensuring expeditious reimbursement.

84th plenary meeting

9 December 1994

CONVENTION ON THE SAFETY OF UNITED NATIONS AND ASSOCIATED

PERSONNEL

The States Parties to this Convention,

Deeply concerned over the growing number of deaths and injuries resulting from deliberate attacks against United

Nations and associated personnel,

Bearing in mind that attacks against, or other mistreatment of, personnel who act on behalf of the United Nations are

unjustifiable and unacceptable, by whomsoever committed,

Chapter 23, Appendix B

Peace Operations

413
Recognizing that United Nations operations are conducted in the common interest of the international community and in

accordance with the principles and purposes of the Charter of the United Nations,

Acknowledging the important contribution that United Nations and associated personnel make in respect of United

Nations efforts in the fields of preventive diplomacy, peacemaking, peace-keeping, peace-building and humanitarian and

other operations,

Conscious of the existing arrangements for ensuring the safety of United Nations and associated personnel, including the

steps taken by the principal organs of the United Nations, in this regard,

Recognizing none the less that existing measures of protection for United Nations and associated personnel are

inadequate,

Acknowledging that the effectiveness and safety of United Nations operations are enhanced where such operations are

conducted with the consent and cooperation of the host State,

Appealing to all States in which United Nations and associated personnel are deployed and to all others on whom such

personnel may rely, to provide comprehensive support aimed at facilitating the conduct and fulfilling the mandate of

United Nations operations,

Convinced that there is an urgent need to adopt appropriate and effective measures for the prevention of attacks

committed against United Nations and associated personnel and for the punishment of those who have committed such

attacks,

Have agreed as follows:

Article 1

Definitions

For the purposes of this Convention:

(a) United Nations personnel means:

(i) Persons engaged or deployed by the Secretary-General of the United Nations as members of the military,

police or civilian components of a United Nations operation;

(ii) Other officials and experts on mission of the United Nations or its specialized agencies or the International

Atomic Energy Agency who are present in an official capacity in the area where a United Nations operation is being

conducted;

(b) Associated personnel means:

(i) Persons assigned by a Government or an intergovernmental organization with the agreement of the

competent organ of the United Nations;

(ii) Persons engaged by the Secretary-General of the United Nations or by a specialized agency or by the

International Atomic Energy Agency;

(iii) Persons deployed by a humanitarian non-governmental organization or agency under an agreement with the

Secretary-General of the United Nations or with a specialized agency or with the International Atomic Energy Agency, to

carry out activities in support of the fulfillment of the mandate of a United Nations operation;

(c) United Nations operation means an operation established by the competent organ of the United Nations in

accordance with the Charter of the United Nations and conducted under United Nations authority and control: (i) Where

the operation is for the purpose of maintaining or restoring international peace and security; or (ii) Where the Security

Council or the General Assembly has declared, for the purposes of this Convention, that there exists an exceptional risk to

the safety of the personnel participating in the operation;

(d) Host State means a State in whose territory a United Nations operation is conducted;

(e) Transit State means a State, other than the host State, in whose territory United Nations and associated

personnel or their equipment are in transit or temporarily present in connection with a United Nations operation.

Chapter 23, Appendix B

Peace Operations

414
Article 2

Scope of application

1. This Convention applies in respect of United Nations and associated personnel and United Nations operations, as

defined in article 1.

2. This Convention shall not apply to a United Nations operation authorized by the Security Council as an enforcement

action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants

against organized armed forces and to which the law of international armed conflict applies.

Article 3

Identification

1. The military and police components of a United Nations operation and their vehicles, vessels and aircraft shall bear

distinctive identification. Other personnel, vehicles, vessels and aircraft involved in the United Nations operation shall be

appropriately identified unless otherwise decided by the Secretary-General of the United Nations.

2. All United Nations and associated personnel shall carry appropriate identification documents.

Article 4

Agreements on the status of the operation

The host State and the United Nations shall conclude as soon as possible an agreement on the status of the United Nations

operation and all personnel engaged in the operation including, inter alia, provisions on privileges and immunities for

military and police components of the operation.

Article 5

Transit

A transit State shall facilitate the unimpeded transit of United Nations and associated personnel and their equipment to

and from the host State.

Article 6

Respect for laws and regulations

1. Without prejudice to such privileges and immunities as they may enjoy or to the requirements of their duties, United

Nations and associated personnel shall: (a) Respect the laws and regulations of the host State and the transit State; and (b)

Refrain from any action or activity incompatible with the impartial and international nature of their duties.

2. The Secretary-General of the United Nations shall take all appropriate measures to ensure the observance of these

obligations.

Article 7

Duty to ensure the safety and security of United Nations and associated personnel

1. United Nations and associated personnel, their equipment and premises shall not be made the object of attack or of

any action that prevents them from discharging their mandate.

2. States Parties shall take all appropriate measures to ensure the safety and security of United Nations and associated

personnel. In particular, States Parties shall take all appropriate steps to protect United Nations and associated personnel

who are deployed in their territory from the crimes set out in article 9.

Chapter 23, Appendix B

Peace Operations

415
3. States Parties shall cooperate with the United Nations and other States Parties, as appropriate, in the implementation

of this Convention, particularly in any case where the host State is unable itself to take the required measures.

Article 8

Duty to release or return United Nations and associated personnel captured or detained

Except as otherwise provided in an applicable status-of-forces agreement, if United Nations or associated personnel are

captured or detained in the course of the performance of their duties and their identification has been established, they

shall not be subjected to interrogation and they shall be promptly released and returned to United Nations or other

appropriate authorities. Pending their release such personnel shall be treated in accordance with universally recognized

standards of human rights and the principles and spirit of the Geneva Conventions of 1949.

Article 9

Crimes against United Nations and associated personnel

1. The intentional commission of: (a) A murder, kidnapping or other attack upon the person or liberty of any United

Nations or associated personnel; (b) A violent attack upon the official premises, the private accommodation or the means

of transportation of any United Nations or associated personnel likely to endanger his or her person or liberty; (c) A threat

to commit any such attack with the objective of compelling a physical or juridical person to do or to refrain from doing

any act; (d) An attempt to commit any such attack; and (e) An act constituting participation as an accomplice in any such

attack, or in an attempt to commit such attack, or in organizing or ordering others to commit such attack, shall be made by

each State Party a crime under its national law.

2. Each State Party shall make the crimes set out in paragraph 1 punishable by appropriate penalties which shall take

into account their grave nature.

Article 10

Establishment of jurisdiction

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in

article 9 in the following cases: (a) When the crime is committed in the territory of that State or on board a ship or

aircraft registered in that State; (b) When the alleged offender is a national of that State.

2. A State Party may also establish its jurisdiction over any such crime when it is committed:

(a) By a stateless person whose habitual residence is in that State; or

(b) With respect to a national of that State; or

(c) In an attempt to compel that State to do or to abstain from doing any act.

3. Any State Party which has established jurisdiction as mentioned in paragraph 2 shall notify the Secretary-General of

the United Nations. If such State Party subsequently rescinds that jurisdiction, it shall notify the Secretary-General of the

United Nations.

4. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in

article 9 in cases where the alleged offender is present in its territory and it does not extradite such person pursuant to

article 15 to any of the States Parties which have established their jurisdiction in accordance with paragraph 1 or 2.

5. This Convention does not exclude any criminal jurisdiction exercised in accordance with national law.

Article 11

Prevention of crimes against United Nations and associated personnel

States Parties shall cooperate in the prevention of the crimes set out in article 9, particularly by:

Chapter 23, Appendix B

Peace Operations

416
(a) Taking all practicable measures to prevent preparations in their respective territories for the commission of those

crimes within or outside their territories; and

(b) Exchanging information in accordance with their national law and coordinating the taking of administrative and

other measures as appropriate to prevent the commission of those crimes.

Article 12

Communication of information

1. Under the conditions provided for in its national law, the State Party in whose territory a crime set out in article 9 has

been committed shall, if it has reason to believe that an alleged offender has fled from its territory, communicate to the

Secretary-General of the United Nations and, directly or through the Secretary-General, to the State or States concerned

all the pertinent facts regarding the crime committed and all available information regarding the identity of the alleged

offender.

2. Whenever a crime set out in article 9 has been committed, any State Party which has information concerning the

victim and circumstances of the crime shall endeavour to transmit such information, under the conditions provided for in

its national law, fully and promptly to the Secretary-General of the United Nations and the State or States concerned.

Article 13

Measures to ensure prosecution or extradition

1. Where the circumstances so warrant, the State Party in whose territory the alleged offender is present shall take the

appropriate measures under its national law to ensure that persons presence for the purpose of prosecution or extradition.

2. Measures taken in accordance with paragraph 1 shall be notified, in conformity with national law and without delay,

to the Secretary-General of the United Nations and, either directly or through the Secretary-General, to: (a) The State

where the crime was committed; (b) The State or States of which the alleged offender is a national or, if such person is a

stateless person, in whose territory that person has his or her habitual residence; (c) The State or States of which the

victim is a national; and (d) Other interested States.

Article 14

Prosecution of alleged offenders

The State Party in whose territory the alleged offender is present shall, if it does not extradite that person, submit, without

exception whatsoever and without undue delay, the case to its competent authorities for the purpose of prosecution,

through proceedings in accordance with the law of that State. Those authorities shall take their decision in the same

manner as in the case of an ordinary offence of a grave nature under the law of that State.

Article 15

Extradition of alleged offenders

1. To the extent that the crimes set out in article 9 are not extraditable offences in any extradition treaty existing

between States Parties, they shall be deemed to be included as such therein. States Parties undertake to include those

crimes as extraditable offences in every extradition treaty to be concluded between them.

2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition

from another State Party with which it has no extradition treaty, it may at its option consider this Convention as the legal

basis for extradition in respect of those crimes. Extradition shall be subject to the conditions provided in the law of the

requested State.

3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize those crimes as

extraditable offences between themselves subject to the conditions provided in the law of the requested State.

Chapter 23, Appendix B

Peace Operations

417
4. Each of those crimes shall be treated, for the purposes of extradition between States Parties, as if it had been

committed not only in the place in which it occurred but also in the territories of the States Parties which have established

their jurisdiction in accordance with paragraph 1 or 2 of article 10.

Article 16

Mutual assistance in criminal matters

1. States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings

brought in respect of the crimes set out in article 9, including assistance in obtaining evidence at their disposal necessary

for the proceedings. The law of the requested State shall apply in all cases.

2. The provisions of paragraph 1 shall not affect obligations concerning mutual assistance embodied in any other treaty.

Article 17

Fair treatment

1. Any person regarding whom investigations or proceedings are being carried out in connection with any of the crimes

set out in article 9 shall be guaranteed fair treatment, a fair trial and full protection of his or her rights at all stages of the

investigations or proceedings.

2. Any alleged offender shall be entitled: (a) To communicate without delay with the nearest appropriate

representative of the State or States of which such person is a national or which is otherwise entitled to protect that

persons rights or, if such person is a stateless person, of the State which, at that persons request, is willing to protect that

persons rights; and (b) To be visited by a representative of that State or those States.

Article 18

Notification of outcome of proceedings

The State Party where an alleged offender is prosecuted shall communicate the final outcome of the proceedings to the

Secretary-General of the United Nations, who shall transmit the information to other States Parties.

Article 19

Dissemination

The States Parties undertake to disseminate this Convention as widely as possible and, in particular, to include the study

thereof, as well as relevant provisions of international humanitarian law, in their programmes of military instruction.

Article 20

Savings clauses

Nothing in this Convention shall affect:

(a) The applicability of international humanitarian law and universally recognized standards of human rights as

contained in international instruments in relation to the protection of United Nations operations and United Nations and

associated personnel or the responsibility of such personnel to respect such law and standards;

(b) The rights and obligations of States, consistent with the Charter of the United Nations, regarding the consent to

entry of persons into their territories;

(c) The obligation of United Nations and associated personnel to act in accordance with the terms of the mandate of

a United Nations operation;

Chapter 23, Appendix B

Peace Operations

418
(d) The right of States which voluntarily contribute personnel to a United Nations operation to withdraw their

personnel from participation in such operation; or

(e) The entitlement to appropriate compensation payable in the event of death, disability, injury or illness

attributable to peace-keeping service by persons voluntarily contributed by States to United Nations operations.

Article 21

Right of self-defence

Nothing in this Convention shall be construed so as to derogate from the right to act in self-defence.

Article 22

Dispute settlement

1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which

is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the

date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those

parties may refer the dispute to the International Court of Justice by application in conformity with the Statute of the

Court.

2. Each State Party may at the time of signature, ratification, acceptance or approval of this Convention or accession

thereto declare that it does not consider itself bound by all or part of paragraph 1. The other States Parties shall not be

bound by paragraph 1 or the relevant part thereof with respect to any State Party which has made such a reservation.

3. Any State Party which has made a reservation in accordance with paragraph 2 may at any time withdraw that

reservation by notification to the Secretary-General of the United Nations.

Article 23

Review meetings

At the request of one or more States Parties, and if approved by a majority of States Parties, the Secretary-General of the

United Nations shall convene a meeting of the States Parties to review the implementation of the Convention, and any

problems encountered with regard to its application.

Article 24

Signature

This Convention shall be open for signature by all States, until 31 December 1995, at United Nations Headquarters in

New York.

Article 25

Ratification, acceptance or approval

This Convention is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall

be deposited with the Secretary-General of the United Nations.

Chapter 23, Appendix B

Peace Operations

419
Article 26

Accession

This Convention shall be open for accession by any State. The instruments of accession shall be deposited with the

Secretary-General of the United Nations.

Article 27

Entry into force

1. This Convention shall enter into force thirty days after twenty-two instruments of ratification, acceptance, approval

or accession have been deposited with the Secretary-General of the United Nations.

2. For each State ratifying, accepting, approving or acceding to the Convention after the deposit of the twenty-second

instrument of ratification, acceptance, approval or accession, the Convention shall enter into force on the thirtieth day

after the deposit by such State of its instrument of ratification, acceptance, approval or accession.

Article 28

Denunciation

1. A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations.

2. Denunciation shall take effect one year following the date on which notification is received by the Secretary-General

of the United Nations.

Article 29

Authentic texts

The original of this Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally

authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to

all States.

Chapter 23, Appendix B

Peace Operations

420
CHAPTER 24

NATIONAL SECURITY STRUCTURE AND STRATEGY

REFERENCES

1. U.S. Constitution.

2. National Security Act of 1947, P.L. 80-253 (1947).

3. National Security Act Amendments of 1949, P.L. 81-216 (1949).

4. Department of Defense Reorganization Act of 1958, P.L. 85-599 (1958).

5. Goldwater-Nichols Department of Defense Reorganization Act of 1986, P.L. 99-433

(1986).

6. U.S. Code, Title 10, Chapter 2, Department of Defense.

7. U.S. Code, Title 10, Chapter 5, Joint Chiefs of Staff.

8. U.S. Code, Title 10, Chapter 6, Combatant Commands.

NATIONAL COMMAND STRUCTURE

The national command structure has evolved from a single Department of War headed by the Secretary of War in

1789 to todays complex structure involving the Department of Defense, Military Departments, and Commanders-inChief (CINCs), to name only the major participants. This structure is largely a result of legislation, though

administration and defense policy also play a part. This chapter will present materials applicable at the highest levels of

command. It is unlikely that the typical operational law judge advocate will be concerned with these matters.

Nevertheless, an appreciation for the dynamics that occur at the highest levels will help the judge advocate better

understand the commands which eventually affect his unit.

Combatant Commands

Combatant commands were first recognized in legislation in 1958, though commanders of joint forces with similar

powers and responsibilities existed for some time past. The current legislative guidance is as follows:

With the advice and assistance of the Chairman of the Joint Chiefs of Staff, the President, through the

Secretary of Defense, shall establish unified combatant commands and specified combatant commands

to perform military missions. 10 U.S.C. §161(a).

Unified command is defined as a military command which has broad, continuing missions and which is composed

of forces from two or more military departments. Specified command is defined similarly, though its forces come from

a single military department.

The President carries out this responsibility in his biennial Unified Command Plan (UCP), which details the

existence, responsibilities, and force structure of the various combatant commanders. The current UCP describes 9

combatant commands5 with geographic responsibility, and 4 with functional responsibility. They are:

Geographic Combatant Commands

U.S. Joint Forces Command (USJFCOM, Norfolk, Va.). Forces in the U.S. and portions of the Atlantic Ocean.

U.S. European Command (USEUCOM, Stuttgart, Germany). NATO, some Middle East, most African countries,

and, effective 1 October 2000, the waters off the west and west coast of Africa and the waters off Europe.

U.S. Pacific Command (USPACOM, Camp Smith, Hawaii). Pacific Ocean, Pacific Rim countries and some along

the Indian Ocean.

Chapter 24

National Security Structure

421
U.S. Southern Command (USSOUTHCOM, Miami, FL). Central and Latin America and the Caribbean.

U.S. Central Command (USCENTCOM, MacDill AFB, FL). Southwest Asia, some eastern African countries, and

part of the Indian Ocean.

Functional Combatant Commands

U.S. Transportation Command (USTRANSCOM, Scott AFB, IL). Global air, land, and sea transportation.

U.S. Special Operations Command (USSOCCOM, MacDill AFB, FL). Trained and equipped special operations

forces.

U.S. Space Command (USSPACECOM, Peterson AFB, CO). Air, missile and space defense.

U.S. Strategic Command (USSTRATCOM, Offutt AFB, NE). Deters military attack on the U.S. and allies.

There are currently no specified commands.

In an operation, combatant commands are often described as supported or supporting. The supported

command is typically the geographic combatant command in whose area of responsibility the operation is to occur. The

supported command receives the support of all supporting commands. The functional combatant commands, and

occasionally other geographic combatant commands (especially USJFCOM, as the primary provider of U.S.-based forces

to other combatant commanders), are designated as supporting commands based on the supported commands needs,

mission, and other factors.

Military Chain of Command

Unless otherwise directed by the President, the chain of command to a unified or specified combatant

command runs(1) from the President to the Secretary of Defense; and (2) from the Secretary of

Defense to the commander of the combatant command. 10 U.S.C. § 162(b).

In discharging his Constitutional duties as Commander-in-Chief, the President receives advice and assistance from a

number of sources. The National Security Council, created by the 1947 National Security Act and codified at 50 U.S.C. §

40, advises the President on national security and foreign affairs. It consists of the President, Vice-President, Secretary of

Defense, and Secretary of State. The Chairman of the Joint Chiefs of Staff and the Director of Central Intelligence are

statutory advisors. Other Cabinet and Cabinet-level officials are often invited to attend. The Assistant to the President for

National Security Affairs, often known as the National Security Advisor, provides independent advice to the President.

The Chairman of the Joint Chiefs of Staff is the principal military advisor to the President and Secretary of Defense, while

the other members of the Joint Chiefs of Staff are military advisors (10 U.S.C. § 151(b))

The President and the Secretary of Defense are collectively known as the National Command Authorities or NCA.

Note the officials who are not in the chain of command. Service Secretaries and Service Chiefs do not have an

operational role, and are therefore not in the chain of command. The Chairman of the Joint Chiefs of Staff also is not in

the chain of command, but communications between the NCA and combatant commanders are transmitted through him.

10 U.S.C. § 163(a).

Assignment of Forces

. . . The Secretaries of the military departments shall assign all forces under their jurisdiction to unified

or specified commands or to the United States element of the North American Aerospace Defense

Command to perform missions assigned to those commands. Such assignments shall be made as

directed by the Secretary of Defense, including direction as to the command to which forces are to be

assigned. 10 U.S.C. §162(a).

Chapter 24

National Security Structure

422
A later provision of that statute permits the Military Secretaries to retain those forces necessary to carry out those

functions assigned the military departments. The Secretary of Defense assigns forces in his annual Forces For

memorandum. This classified document assigns all operational forces among the CINCs. Those not assigned remain

under the control of the military departments. Forces that are assigned to one CINC may only be transferred to another

CINC by authority of the Secretary of Defense. Deployment orders (issued by the Chairman at the direction of the

Secretary of Defense) are the vehicle used to transfer forces outside of the Forces For process.

As a practical matter, most U.S.-based forces are assigned to USJFCOM. Other geographic CINCs are only

assigned those forces which are physically stationed in their area of responsibility. To assist those other CINCs in

planning, training, and executing operations, the Chairman promulgates an annual classified document called the Joint

Strategic Capabilities Plan. Among other things, this document apportions, or promises the assignment of certain

forces to the other geographic CINCs if the operational need arises. Certain critical units, because of their unique

capabilities, may be dual-apportioned between several CINCs

Powers of CINCs

In an attempt to align the authority of combatant commanders with their responsibilities, Congress granted great

power to the CINCs. A combatant commander exercises Combatant Command, or COCOM, defined as:

Nontransferable command exercised only by commanders of unified or specified combatant commands

unless otherwise directed by the President or the Secretary of Defense. Combatant command

(command authority) cannot be delegated and is the authority of a combatant commander to perform

those functions of command over assigned forces involving organizing and employing commands and

forces, assigning tasks, designating objectives, and giving authoritative direction over all aspects of

military operations, joint training, and logistics necessary to accomplish the missions assigned to the

command. Combatant command (command authority) provides full authority to organize and employ

commands and forces as the combatant commander considers necessary to accomplish assigned

missions. Operational control is inherent in combatant command (command authority). See Joint Pub 0-

2, Unified Action Armed Forces.

10 U.S.C. §164 enumerates specific powers that a combatant commander shall have, to include:

Giving authoritative direction to subordinate commands, including authoritative direction over all aspects of military

operations, joint training, and logistics

Prescribing the chain of command

Organizing the command and forces as he considers necessary

Employing forces as he considers necessary

Assigning command functions to subordinate commanders

Coordinating administration and support

Selecting subordinate commanders, selecting combatant command staff, suspending subordinates, and convening

courts-martial.

The Services

The military departments (Department of the Army [DA], Department of the Navy [DON], and Department of the

Air Force [DAF]) are organized separately under civilian secretaries who are responsible for and have authority to

conduct the affairs committed to their departments. The service secretaries and their uniformed chiefs of staff are not in

the operational chain of command. These departments are responsible for ensuring that combatant commanders have the

forces and material necessary to fulfill their warfighting missions. The military departments may retain forces for their

Chapter 24

National Security Structure

423
inherent service functions of recruiting, organizing, supplying, equipping, training, mobilizing, administering, and

supporting the military forces.

ORGANIZATION

FOR NATIONAL SECURITY

Sec,

Army

CSA

USA

DA

Sec,

AF

CSAF

USAF

DAF

Sec,

Navy

CNO CMC

USN USMC

DON

JCS

Joint

Staff

C JCS

VC JCS

Sec of Def

Pres

NCA

VP

Sec of St

NSC

NSC

Advisers

CINC

Specified

Cmd

CINC

Unified

Cmd

Cdrs

Subordinate

Cmds

Cdr

Joint Task

Force

Cdr

Subunified

Cmd

Operational Responsibilities Support Responsibilities

Combatant

Command

Directive

Authority

Operations

Planning

Strategic

Direction

Military Advice

Organize

Train

Equip

Maintain

Assign

Support

Cdr

Component

Cmd

Figure 1. Organization for National Security.

JFCOM EUCOM

CENTCOM

SOUTHCOM

PACOM

SOCOM

SPACECOM

TRANSCOM

STRATCOM

Chairman of

JCS

Pres

Secy of

Def

Defense Agencies *

DIA DLA DMA DNA DISA

Military Communications -

Electronics Board

* Defense Agencies have a functional

relationship with CJCS

NCA

Communications

Regional Responsibilities Functional Responsibilities

Unified Commands

Organizations

Reporting to Sec of Def

thru Chairman, JCS

Figure 2. Organizations Reporting to the Secretary of Defense.

Chapter 24

National Security Structure

424
NATIONAL SECURITY STRATEGY

In accordance with section 603 of the Goldwater-Nichols Reorganization Act of 1986, codified at 50 U.S.C. § 404a,

the President is required to transmit to Congress each year a comprehensive report on the national security strategy of the

United States. President Clinton last prepared and released such a report in December 1999 entitled A National

Security Strategy for a New Century (available on the Internet at

http://www.whitehouse.gov/WH/EOP/NSC/html/nschome).

The overall goal of a national security strategy is to promote U.S. national interests. The national strategy,

recognizing that there are many demands for U.S. action, defines three areas in which action is more likely. Vital

interests are those affecting the survival, safety, and vitality of the country. Important national interests are those

which may not affect those interests described as vital, but do affect our national well-being and the character of the

world. Examples given include the U.S. response in Haiti and Bosnia. Humanitarian and other interests are those

which require action because our values demand it, such as responses to emergencies and disasters, human rights

violations, and supporting democratization.

The strategy is based on three core objectives: enhancing national security; bolstering Americas economic

prosperity; and promoting democracy abroad. Within each of these areas the document discusses the challenges and

problems to be faced, as well as the means by which the U.S. will respond. Military forces figure prominently throughout

the discussion.

To complement the National Security Strategy, the Chairman of the Joint Chiefs of Staff publishes a National

Military Strategy. The latest edition (1997) is entitled Shape, Respond, Prepare NowA Military Strategy for a New

Era, (available at The overall objective of the military strategy is [t]o defend and protect U.S.

national interests, our national military objectives are to Promote Peace and Stability and, when necessary, to Defeat

Adversaries. The elements of the strategy include: (1) Shaping the International Environmentthrough deterrence,

peacetime engagement, and active participation and leadership in alliances; (2) Responding to the Full Spectrum of

Crisisfrom humanitarian assistance to fighting and winning major theater wars; and (3) Preparing Now for an Uncertain

Futureexploiting the Revolution in Military Affairs.

http://www.dtic.mil/jcs).

Chapter 24

National Security Structure

425
Ch

apter 24

National SecurityStructure

426
CHAPTER 25

JOINT OPERATIONS

DEPARTMENT OF DEFENSE

The Department of Defense (DoD) is responsible for providing the military forces needed to deter war and protect the

security of the United States. The major elements of these forces are the Army, Navy, Air Force, and Marine Corps.

Under the President, who is also Commander-in-Chief, the Secretary of Defense exercises authority, direction, and

control over the Department which includes the Office of the Secretary of Defense, the Chairman of the Joint Chiefs of

Staff, three Military Departments, nine Unified Combatant Commands, the DoD Inspector General, fifteen Defense

Agencies, and seven DoD Field Activities.

The Secretary of Defense is the principal defense policy advisor to the President and is responsible for the formulation of

general defense policy and policy related to all matters of direct and primary concern to the DoD, and for the execution of

approved policy. Under the direction of the President, the Secretary exercises authority, direction, and control over the

Department of Defense.

Chapter 25

Joint Operations  DoD

427
The Deputy Secretary of Defense is delegated full power and authority to act for the Secretary of Defense and to

exercise the powers of the Secretary on any and all matters for which the Secretary is authorized to act pursuant to law.

The Office of the Secretary of Defense (OSD) is the principal staff element of the Secretary in the exercise of policy

development, planning, resource management, fiscal, and program evaluation responsibilities. OSD includes the

immediate offices of the Secretary and Deputy Secretary of Defense, Under Secretary of Defense for Acquisition,

Technology and Logistics, Under Secretary of Defense for Policy, Under Secretary of Defense for Personnel and

Readiness, Under Secretary of Defense (Comptroller), Director of Defense Research and Engineering, Assistant

Secretaries of Defense, General Counsel, Director of Operational Test and Evaluation, Assistants to the Secretary of

Defense, Director of Administration and Management, and such other staff offices as the Secretary establishes to assist in

carrying out assigned responsibilities.

The Defense Agencies, authorized by the Secretary of Defense pursuant to the provisions of Title 10, United States Code,

perform selected consolidated support and service functions on a Department-wide basis; Defense Agencies that are

assigned wartime support missions are designated as Combat Support Agencies.

Chapter 25

Joint Operations  DoD

428
The DoD Field Activities are established by the Secretary of Defense, under the provisions of Title 10, United States

Code, to perform selected consolidated support and service functions of a more limited scope than Defense Agencies.

Chapter 25

Joint Operations  DoD

429
JOINT COMMAND AND STAFF

The Joint Chiefs of Staff consist of the Chairman, the Vice Chairman, the Chief of Staff of the Army, the Chief of

Naval Operations, the Chief of Staff of the Air Force, and the Commandant of the Marine Corps. The collective body of

the JCS is headed by the Chairman (or the Vice Chairman in the Chairmans absence), who sets the agenda and presides

over JCS meetings. Responsibilities as members of the Joint Chiefs of Staff take precedence over duties as the Chiefs of

Military Services. The Chairman of the Joint Chiefs of Staff is the principal military adviser to the President, Secretary of

Defense, and the National Security Council (NSC), however, all JCS members are by law military advisers, and they may

respond to a request or voluntarily submit, through the Chairman, advice or opinions to the President, the Secretary of

Defense, or NSC. The executive authority of the Joint Chiefs of Staff has changed. In World War II, the U.S. Joint Chiefs

of Staff acted as executive agents in dealing with theater and area commanders, but the original National Security Act of

1947 saw the Joint Chiefs of Staff as planners and advisers, not as commanders of combatant commands. In spite of this,

the 1948 Key West Agreement allowed members of the Joint Chiefs of Staff to serve as executive agents for unified

commands, a responsibility that allowed the executive agent to originate direct communication with the combatant

command. Congress abolished this authority in a 1953 amendment to the National Security Act. Today, the Joint Chiefs

of Staff have no executive authority to command combatant forces. The issue of executive authority was clearly resolved

by the Goldwater-Nichols DoD Reorganization Act of 1986: The Secretaries of the Military Departments shall assign all

forces under their jurisdiction to unified and specified combatant commands to perform missions assigned to those

commands...; the chain of command runs from the President to the Secretary of Defense; and from the Secretary of

Defense to the commander of the combatant command.

CHAIRMAN OF THE JOINT CHIEFS OF STAFF (CJCS)

The Goldwater-Nichols DoD Reorganization Act of 1986 identifies the Chairman of the Joint Chiefs of Staff as the

senior ranking member of the Armed Forces. As such, the Chairman of the Joint Chiefs of Staff is the principal military

adviser to the President. He may seek the advice of and consult with the other JCS members and combatant commanders.

When he presents his advice, he presents the range of advice and opinions he has received, along with any individual

comments of the other JCS members.

Under the DoD Reorganization Act, the Secretaries of the Military Departments assign all forces to combatant

commands except those assigned to carry out the mission of the Services, i.e., recruit, organize, supply, equip, train,

service, mobilize, demobilize, administer and maintain their respective forces. The chain of command to these combatant

commands runs from the President to the Secretary of Defense directly to the commander of the combatant command.

The Chairman of the Joint Chiefs of Staff may transmit communications to the commanders of the combatant commands

from the President and Secretary of Defense, but does not exercise military command over any combatant forces.

The Act also gives to the Chairman of the Joint Chiefs of Staff some of the functions and responsibilities previously

assigned to the corporate body of the Joint Chiefs of Staff. The broad functions of the Chairman of the Joint Chiefs of

Staff are set forth in Title 10, United States Code, and detailed in DoD Directive 5100.1. In carrying out his duties, the

Chairman of the Joint Chiefs of Staff consults with and seeks the advice of the other members of the Joint Chiefs of Staff

and the combatant commanders, as he considers appropriate.

VICE CHAIRMAN OF THE JOINT CHIEFS OF STAFF

The DoD Reorganization Act of 1986 created the position of Vice Chairman of the Joint Chiefs of Staff, who

performs such duties as the Chairman of the Joint Chiefs of Staff may prescribe. By law, he is the second ranking member

of the Armed Forces and replaces the Chairman of the Joint Chiefs of Staff in his absence or disability. Though the Vice

Chairman was not originally included as a member of the JCS, Section 911 of the National Defense Authorization Act of

1992 made him a full voting member of the JCS.

ASSISTANT TO THE CHAIRMAN

This three-star oversees matters requiring close personal control by the Chairman with particular focus on

international relations and politico-military concerns.

Chapter 25

Joint Operations  Joint Staff

430
MILITARY SERVICE CHIEFS

The military Service Chiefs are often said to wear two hats. As members of the Joint Chiefs of Staff, they offer

advice to the President, the Secretary of Defense, and the NSC. As the chiefs of the Military Services, they are

responsible to the Secretaries of their Military Departments for management of the Services. The Service Chiefs serve for

4 years. By custom, the Vice Chiefs of the Services act for their chiefs in most matters having to do with day-to-day

operation of the Services. The duties of the Service Chiefs as members of the Joint Chiefs of Staff take precedence over

all their other duties.

THE JOINT STAFF

The Joint Staff assists the Chairman of the Joint Chiefs of Staff in accomplishing his responsibilities for: the unified

strategic direction of the combatant forces; their operation under unified command; and for their integration into an

efficient team of land, naval, and air forces. The Joint Staff is composed of approximately equal numbers of officers

from the Army, Navy and Marine Corps, and Air Force. In practice, the Marines make up about 20 percent of the number

allocated to the Navy.

Since its establishment in 1947, statute has prohibited the Joint Staff from operating or organizing as an overall

armed forces general staff; therefore, the Joint Staff has no executive authority over combatant forces.

The Chairman of the Joint Chiefs of Staff, after consultation with other JCS members and with the approval of the

Secretary of Defense, selects the Director, Joint Staff, to assist in managing the Joint Staff. By law, the direction of the

Joint Staff rests exclusively with the Chairman of the Joint Chiefs of Staff. As the Chairman directs, the Joint Staff also

may assist the other JCS members in carrying out their responsibilities.

In the joint arena, a body of senior flag or general officers assists in resolving matters that do not require JCS

attention. Each Service Chief appoints an operations deputy who works with the Director, Joint Staff, to form the

subsidiary body known as the Operations Deputies or the OPSDEPS. They meet in sessions chaired by the Director, Joint

Staff, to consider issues of lesser importance or to review major issues before they reach the Joint Chiefs of Staff. With

the exception of the Director, this body is not part of the Joint Staff. There is also a subsidiary body known as the Deputy

Operations Deputies (DEPOPSDEPs), composed of the Vice Director, Joint Staff, and a two-star flag or general officer

appointed by each Service Chief. Currently, the DEPOPSDEPs are the Service directors for plans. Issues come before the

DEPOPSDEPs to be settled at their level or forwarded to the OPSDEPS. Except for the Vice Director, Joint Staff, the

DEPOPSDEPs are not part of the Joint Staff.

Matters come before these bodies under policies prescribed by the Joint Chiefs of Staff. The Director, Joint Staff, is

authorized to review and approve issues when there is no dispute between the Services, when the issue does not warrant

JCS attention, when the proposed action is in conformance with CJCS policy, or when the issue has not been raised by a

member of the Joint Chiefs of Staff. Actions completed by either the OPSDEPs or DEPOPSDEPs will have the same

effect as actions by the Joint Chiefs of Staff.

Chapter 25

Joint Operations  Joint Staff

431
Ch

apter 25

Joint Operations Joint Staff

432
ARMY

You can fly over a land forever; you may bomb it, atomize it, pulverize it and wipe it clean of life but if

you desire to defend it, protect it, and keep it for civilization you must do this on the ground, the way

the Roman Legions did, by putting your young men in the mud.

T.R. Fehrenbach

THIS KIND OF WAR

Through all this welter of change and development, your mission remains fixed, determined,

inviolableit is to win our wars.

GEN Douglas MacArthur

Address to the Corps of Cadets, May 12, 1962

ARMY MISSION

Americas Army is organized, trained, and equipped to succeed across the full spectrum of military operations

providing the nation a full range of capabilities for a range of threats and challenges. The primary mission remains, as it

always has been, to fight and win our nations warssome of which are increasingly ambiguous and difficult to define.

The pattern of international conflict in the post-Cold War environment requires military forces that can do more than just

fight. Our experiences over the past six years prove that the nations military might is also defined by our ability to deter,

reassure, and support.

The Army must always have capabilities to compel any adversary to do what he otherwise would not do of his own

free will. These same capabilities also contribute to our ability to deter adversaries, to keep them from acting inimically

to our interests in the first place. The employment of military forces without necessarily engaging in combat to reassure

allies and friends promotes stability and contributes to our ability to influence international outcomes. Finally, our armed

forces use their capabilities to support domestic authority in times of natural disaster, civil disturbance, or other

emergencies requiring humanitarian assistance.

ARMY FORCE STRUCTURE

The Armys conventional force structure is summarized on the charts below. The Army is the Nations first full

spectrum force, capable of conducting prompt and sustained land operations across the entire spectrum of military

operationsfrom assistance to local authorities in times of emergency, to full scale conflict. It also is multi-mission

capable, providing a range of options for Americas participation in the post-Cold War world. It is a Total Army made up

of Active, Army National Guard, and U.S. Army Reserve soldiers and civilians.

Chapter 25

Joint Operations  Army

433
Army Force Structure and End-Strength,

FY 2000

Active Component

Divisions

Separate brigades and armored cavalry regiments

End-strengtha

10

2

475,000

Army National Guard

Divisions

Separate brigades and armored cavalry regiments

b

End-strengtha

8

18

363,000

Army Reserve End-Strengtha210,000

a

Includes all functional areas of combat, combat support, and combat

service support.

b

Fifteen will be enhanced separate brigades.

›·TM·¥·ø2­ ¤2oÛÕ ̈Æa21 ̈ ̧ 227,000

Unit Type Typical Size

Corps Up to 100,000 soldiers 4 Corps in the Army

Divisions 10,000-18,000 soldiers 10 active in the Army

Brigades 1,000-6,000 soldiers 27 separate Brigades, most

Army National Guard

Battalions 600 soldiers

120-180 soldiers

Platoons 35 soldiers

Squads 9 soldiers

Companies

Conventional Force Structure Summary

FY 1997 FY 1999 QDR

Army

Active Corps 4 4 4

Divisions (Active/National Guard) 10/8 10/8 10/8

Active Armored Cavalry Regiments 2 2 2

Enhanced Separate Brigades (National

Guard)

15 15 15

Separate Brigades (National Guard) 3 3 3

The major warfighting elements of the operational Army are its corps, divisions, and separate brigades. These

combat elements and their supporting elements are the deployable forces that execute the full spectrum of military

operations; many are based overseas. Operational units of different types are grouped together (task organized) to make

the most effective use of the different functional skills and equipment characteristics of these different units. Aside from

the conventional organizations above, there are the Armys Special Operations units (such as the Special Operations

Groups, the 160

th Special Operations Aviation Regiment, the Ranger Regiment, and so forth).

There are different types of divisions armored, mechanized, light infantry, airborne, air assault, and mediumand

not all of these types are exclusive. For instance, airborne divisions are capable of all missions assigned to light infantry

divisions. The essence of the division unit, regardless of type, is that it trains and fights as a team, and it has the

necessary equipment to fight for a significant time. Although Army doctrine designates the corps as the largest tactical

organization, the division is the largest organization that regularly trains as a team. A typical light infantry division has

three infantry brigades (each comprising three battalions), an aviation brigade, a brigade-sized artillery element, a

Chapter 25

Joint Operations  Army

434
brigade-sized logistical support element, and a number of separate battalions. In rough terms, it consists of about 18,000

soldiers equipped with rifles, machine guns, mortars, anti-tank missiles, bridging equipment, air defense missiles, artillery

tubes, helicopters, and other weapons and equipment.

A typical mechanized infantry division has two mechanized and one armored brigade (sometimes referred to as

maneuver brigades), an engineer brigade, an aviation brigade, a brigade-sized artillery element, a brigade-sized

logistical element, and a number of separate battalions. The maneuver brigades will include, as a whole, five mechanized

and five armored battalions, task organized by the division commander according to METT-TC. A typical armored

division features the same capabilities as the mechanized infantry division except that it has two armored brigades and

one mechanized brigade. These maneuver brigades in the armored division will include, as a whole, six armored and four

mechanized battalions task organized into brigades according to METT-TC.

Mechanized Infantry Division

HHC

MI

MP

HHB HHC

Tgt Acq

(5)

(5)

DISCOM

MSB

FSB

MMC

ASB

The Interim Brigade Combat Team (IBCT): The high frequency of joint contingency operations in the 1990sa

frequency expected to continue and perhaps rise during the 21st Century - has sharply increased the significance of

strategic responsiveness. The faster that a joint contingency force can respond to a crisis, the faster it can be resolved. In

fact, rapid response by integrated joint forces can have a greater or equally significant impact on crisis resolution as a

larger operational capability built up over a longer period of time. Rapid response deters, reduces risk, constrains enemy

options, expands the array of possible favorable outcomes, and facilitates rapid decision. At present, the Army is

transforming to optimize its strategic responsiveness. Army light forces can deploy quite rapidly--within a matter of days-

-but they lack the lethality, mobility, and staying power necessary to assure decision. On the other hand, Army

mechanized forces possess substantial lethality and staying power, but they require too much time to deploy, given

current joint capabilities for strategic lift, affording the adversary too much time to prepare for the arrival of U.S. forces.

The Army is developing the IBCT to combine the strengths of its light and heavy forces, and thereby provide a

strategically responsive force for future contingencies.

The Interim Brigade Combat Team is a full spectrum, combat force, capable of deploying within 96 hours to

wherever it may be needed. The Interim Brigade Combat Team deploys very rapidly, executes early entry, and conducts

effective combat operations immediately on arrival to prevent, contain, stabilize, or resolve a conflict through shaping and

decisive operations. The Brigade Combat Team participates in major theater war (MTW), with augmentation, as a

Chapter 25

Joint Operations  Army

435
subordinate maneuver component within a division or corps, in a variety of possible roles. The Interim Brigade Combat

Team also participates with appropriate augmentation in stability and security operations (SASO) as an initial entry force

and/or as a guarantor to provide security for stability forces by means of its extensive combat capabilities.

The first two brigades to transform will be the 3rd Brigade of the 2nd Inf Div, and the 1st Brigade of the 25th Inf Div,

both at Fort Lewis. The design and transformation processes are ongoing.

IBCT

Brigade Combat T eam

(Int erim De sig n)

38 93

BSB

O O O

HH C

4X 1 20 mm

O O O

O O O

O O O

2 X 81 mm

MG S

S UP POR T

HHC

2X 1 20 mm

MI

11 8 499

88

70

2250 70 1 28 38 2

750

(4 1/ 4/ 78 )

( 7/ 7 /56)

( 5/ 3/80)

(12 9/0/21 21 ) ( 6/ 0/64) (43 /0 /4 56 ) (6 /0 /1 22 ) (36/ 10 /3 3 6)

(3 06/ 28/ 355 9 )

288

(33 /4 /2 51 )

BCT Roll U p PAX M AV s

Tr uck s

(HMM WV,

HEM MT,

LM TV, MT V)

HHC 118 2 33

MI Company 70 0 26

S IG Company 88 5 35

INB at ta li on (X3) 2250 264 102

A T Company 70 15 4

RS TA Sqdn 499 90 25

155mm SP Bn 288 52 51

E NG Company 128 22 2

B SB 382 20 135

TOTALS 3893 470 413

C 4ISR

CA

HUMINT SPT

A

L/M

Ro cket/Cannon

MP

Army personnel are divided into Branches. The Combat Arms Branches are directly involved in the conduct of

actual fighting and include Infantry, Armor, Field Artillery, Air Defense Artillery, Engineers, Aviation, and Special

Forces. Combat Support Branches provide operational assistance to the combat arms, including engagement in combat

when necessary, and have additional responsibilities in providing logistical administrative support to the Army. They

include Signal, Chemical, Military Intelligence and Military Police. Combat Service Support Branches provide logistical

and administrative support and include the Adjutant Generals, Chaplains, Finance, Quartermaster, Medical, Ordnance,

Transportation, and Judge Advocate Generals Corps. The Armys operational organizations are comprised of officers

and enlisted troops from among these various branches.

ROLE OF THE ARMY OPERATIONAL LAWYER

The mission of the Armys Judge Advocate Generals Corps (JAGC) is to provide professional legal services at all

echelons of command throughout the range of military operations. Legal support to operations encompasses all legal

services provided by JAGC personnel in support of units, commanders and soldiers throughout an area of operation and

across the spectrum of operations. Legal support to operations falls into three functional areas: command and control,

Chapter 25

Joint Operations  Army

436
sustainment, and personnel service support (or support for short). The Operational Law Attorney must be capable of delivering

legal support in the six traditional core legal disciplines of administrative and civil law, claims, contract and fiscal law,

international law, legal assistance, and military justice. He or she must also be proficient in command and control

functions to include interpreting, drafting, disseminating, and training commanders, staffs, and soldiers on rules of

engagement; participating in targeting cells; participating in the military decision making process; participating in

information operations; and, dealing with the Law of Armed Conflict (LOAC).

The division SJA section is the lowest- echelon, organic, full-service element of legal support to operations. It is

modularcapable of being tailored to provide legal support for specific missions that may be undertaken during a war. It

also features significant synergya product of bringing together diverse, technically skilled legal professionals and

providing them the informational and legal research infrastructure necessary for tackling complex legal issues.

Operational law duties in the main CP (or, when appropriate, in the TAC CP/ assault CP) involve the counselor

function and disciplines associated with the engagement battlefield operating systems and the command and control

battlefield operating system. Legal support to operations associated with the combat service support/personnel service

support battlefield operating system are performed by judge advocates in the rear CP. The remainder of the division SJA

section deploys with the command posts of subordinate brigades, brigade-sized commands, or separate battalions. The

SJA will determine which subordinate commands are directly supported by judge advocates. In making this

determination, the SJA will consider the principles of modularity and synergy in light of the complexity and volume of

legal issues likely to be faced by the subordinate unit, the ability of the unit to receive support from other operational law

assets within the area of operations, and other aspects of METT-TC.

Chapter 25

Joint Operations  Army

437
AIR FORCE

REFERENCES

1.

2.

Title 10, Chapter 803Department of the Air Force, 10 U.S. Code Sections 8011 et seq.

AF Doctrine Document (AFDD) 1, AIR FORCE BASIC DOCTRINE, 1 Sep 97, available

on line at: http://afpubs.hq.af.mil/pubsforms/pubs/af/dd/d0100000/d0100000.pdf

3. AFDD 2, ORGANIZATION AND EMPLOYMENT OF AEROSPACE POWER, 28 Sep

98, available on line at:

http://afpubs.hq.af.mil/pubsforms/pubs/af/dd/d0200000/d0200000.pdf

4. GLOBAL ENGAGEMENT: A VISION FOR THE TWENTY-FIRST CENTURY AIR

FORCE (AF/XPX August 1996)(hereinafter, GLOBAL ENGAGEMENT)

5. Lt Col Robert A. Coe & Lt Col Michael N. Schmitt, Fighter Ops for Shoe Clerks, 42 A.F.

L. REV. 49, 49-99 (1997)

6. AFP 110-31, International LawConduct of Armed Conflict & Air Operations (19 Nov

76)

7. AFPD 51-4, Compliance with the Law of Armed Conflict (LOAC), 26 Apr 93

8. AFI 51-401, Training & Reporting to Insure Compliance with LOAC, 1 Jul 94

9. AFI 51-402, Weapons Review, 13 May 94

OVERVIEW

This chapter provides an overview of Air Force operational concepts, missions, and organization. This chapter closes

with a review of the judge advocates role in support of operations. This chapter familiarizes the reader with the typical

missions of Air Force judge advocates clientsthe operational aviators and commanders of air and space forces.

AIR FORCE OPERATIONS LAW

Operations law in the U.S. Air Force embodies all facets of the military law practice in a contingency environment.

The environment is often expeditionary and joint in nature. The Air Force Ops lawyer must understand aerospace

doctrine, campaigning, and targeting procedures as well as military justice, international agreements, claims, rules of

engagement, contracting, fiscal, environmental, foreign criminal jurisdiction, labor law, and legal assistance. Ops law is

the highest expression of an Air Force judge advocates practice of military law. The Air Force details Ops lawyers on

the staffs of most unified commands, all AF major commands and numbered air forces. However, the International &

Operations Law Division, Office of The Judge Advocate General (HQ AF/JAI, DSN 225-9631, 703-695-9631)

establishes Air Force policy in the operations law field.

Tenets of Aerospace Power

Air and space power is intrinsically different from either land or sea power, and its use must be guided by different

axioms than those of surface forces (AFDD 1, at 21-27).

1. Centralized Control/Decentralized Execution. Aerospace forces should be centrally controlled by an airman to

achieve advantageous synergies, establish effective priorities, capitalize on unique strategic and operational flexibilities,

ensure unity of purpose, and minimize the potential for conflicting objectives. Execution of aerospace missions should be

decentralized to achieve effective spans of control, responsiveness, and tactical flexibility.

2. Flexibility/Versatility. The unique flexibility and versatility of aerospace power should be fully used and not

compromised. The ability to concentrate force anywhere and attack any facet of the enemys power is the outstanding

strength of aerospace power.

3. Priority. Effective priorities for the use of aerospace forces flow from an informed dialogue between the joint or

combined commander and the air component commander. The air commander should assess the possible uses as to their

Chapter 25

Joint Operations  Air Force

438
importance to (1) the war, (2) the campaign, and (3) the battle. Air commanders should be alert for the potential diversion

of aerospace forces to missions of marginal importance.

4. Synergy. Internally, the missions of aerospace power, when applied in comprehensive and mutually supportive air

campaigns, produce effects well beyond the proportion of each missions individual contribution to the campaign.

Externally, aerospace operations can be applied in coordinated joint campaigns with surface forces, either to enhance or

be enhanced by surface forces.

5. Balance. The air commander should balance combat opportunity, necessity, effectiveness, and efficiency against the

associated risk to friendly aerospace resources. Technologically sophisticated aerospace assets are not available in vast

numbers and cannot be produced quickly.

6. Concentration. Aerospace power is most effective when it is focused in purpose and not needlessly dispersed.

7. Persistence. Aerospace power should be applied persistently. Destroyed targets may be rebuilt by a resourceful

enemy. Commanders should plan for restrikes against important targets.

Core Competencies

Core competencies are the basic areas of expertise that the Air Force brings to any activity across the range of

military operations, whether as a single Service or in conjunction with the core competencies of other Services in joint

operations. Core competencies are made possible by the effective integration of platforms, people, weapons, bases,

logistics, and all supporting infrastructure. Core competencies are the heart of Air Force strategy. Additionally, what

distinguishes the Air Forces core competencies from the core competencies of other Services are the speed and the global

nature of its reach and perspective. In this context, the competencies represent air and space power capability. They are

not doctrine per se, but are the enablers of AF doctrine. Core competencies begin to translate the central beliefs of

doctrine into operational concepts (AFDD 1, at 27-35).

1. Air and Space Superiority. It is an important first step in military operations. It provides freedom to attack as well

as freedom from attack. Success in air, land, sea, and space operations depends upon air and space superiority. Air and

space power is so flexible and useful, there will be many demands that it be diverted to other tasks before any measure of

air and space superiority is secured. That is a false economy that ultimately costs more in long term attrition and

ineffective sorties. Superiority is that degree of dominance that permits friendly land, sea, and air forces to operate at a

given time and place without prohibitive interference by the opposing force. Supremacy is that degree of superiority

wherein opposing air and space forces are incapable of effective interference anywhere in a given theater of operations.

To gain control of the air, friendly forces must counter enemy air, missile, and air defense artillery threats not only to

assure full force protection for surface forces, but also to enable full flexibility to conduct parallel warfare across the

theater of operations. Space superiority provides the freedom to conduct operations without significant interference from

enemy forces. To ensure that our forces maintain the ability to operate without being seen, heard, or interfered with from

space, it is essential to gain and maintain space superiority.

2. Precision Engagement. Air and space power provide the scalpel of joint service operationsthe ability to forgo

the brute force-on-force tactics of previous wars and apply discriminate force precisely where required. The Air Force is

clearly not the only Service capable of precise employment of its forces, but the Air Force enjoys superior capability to

apply the technology and techniques of precision engagement anywhere on the face of the earth in a matter of hours or

minutes. It is the effect, rather than forces applied, that is the defining factor. In addition to the traditional application of

force, precision engagement includes non-lethal as well as lethal force. The fact that air and space power can concentrate

in purpose, whether or not massing in location or concentrating in time, challenges traditional understandings of precision

and creates opportunity for a unique method to harnessing military power to meet national security policy objectives.

3. Information Superiority. Information superiority is the ability to collect, control, exploit, and defend information

while denying an adversary the ability to do the same and, like air and space superiority, includes gaining control over the

information realm and fully exploiting military information functions. The major operator of sophisticated air- and spacebased intelligence, surveillance, and reconnaissance (ISR) systems, the Air Force can quickly respond to the information

they provide. Whoever has the best ability to gather, understand, control, and use information has a substantial strategic

Chapter 25

Joint Operations  Air Force

439
advantage. One of a commanders primary tasks is to gain and maintain information superiority with the objective of

achieving faster and more effective command and control of assigned forces than the adversary.

4. Global Attack. All military Services provide strike capabilities, but the Air Forces ability to attack rapidly and

persistently, with a wide range of munitions, anywhere on the globe at any time is unique. The decline of both total force

structure and worldwide bases has decreased the size of our forward presence and forced the U.S. military to become

primarily and expeditionary force. The Air Force may rapidly project power over global distances and maintain a

virtually indefinite presence over an adversary. When combined with our inherent strategic perspective, Air Force

operations can be both a theaters first and potentially most decisive force in demonstrating the nations will to counter an

adversarys aggression.

5. Rapid Global Mobility. In the post-Cold War era, global mobility has increased in importance to the point where it

is required in virtually every military operation. U.S. forces overseas have been reduced significantly, while rapid power

projection based in the continental United States (CONUS) has become the predominant military strategy. It is the

particular competence of air and space forces to most rapidly provide what is needed, including weapons on target and an

increasing variety of surface force components, where it is needed.

6. Agile Combat Support. The need to provide highly responsive force support is certainly not unique to the Air

Force, but a force that is poised to respond to global taskings within hours must also be able to support that force with

equal facility. This includes all elements of a forward base-support structure: maintenance, supply, transportation,

communications, services, engineering, security, medical, and chaplaincy. Each of these areas must be integrated to form

a seamless, agile, and responsive combat support system of systems. Equally important to a technologically dependent

Service like the Air Force is agilityagility in acquisition and modernization processes, in organizations, in innovation to

meet future challenges, and in ability to adapt to the changing world.

AIR AND SPACE POWER FUNCTIONS.

The Air Force engages in 17 functions or types of missions (AFDD 1, at 45-60). This is a recent change in doctrine.

Typical Air Force missions include those detailed below:

Counterair. Counterair consists of operations to attain and maintain a desired degree of air superiority by the destruction

or neutralization of enemy forces. Counterairs two elements, offense counterair and defensive counterair, enable friendly

use of otherwise contested airspace and disable the enemys offensive air and missile capabilities to reduce the threat

posed against friendly forces. The entire offensive and defensive counterair effort should be controlled by one air officer

under the centralized control, decentralized execution concept. Offensive Counterair (OCA) is often the most effective

and efficient method for achieving the appropriate degree of air superiority. This function consists of operations to

destroy, neutralize, disrupt, or limit enemy air and missile power as close to its source as possible and at a time and place

of our choosing. This is freedom from attack that enables action by friendly forcesfree to attack. Defensive Counterair

(DCA). DCA concentrates on defeating the enemys offensive plan and on inflicting unacceptable losses on attacking

enemy forces.

Counterspace. Counterspace involves those operations conducted to attain and maintain a desired degree of space

superiority by the destruction or neutralization of enemy forces. The main objectives of counterspace operations are to

allow friendly forces to exploit space capabilities, while negative the enemys ability to do the same. Offensive

Counterspace (OCS). OCS operations destroy or neutralize an adversarys space systems or the information they provide

at a time and place of our choosing through attacks on the space, terrestrial, or link elements of space systems. Defensive

Counterspace (DCS). DCS operations consist of active and passive actions to protect our space related capabilities from

enemy attack or interference.

Counterland. Counterland involves those operations conducted to attain and maintain a desired degree of superiority

over surface operations by the destruction or neutralization of enemy surface forces. The main objectives of counterland

operations are to dominate the surface environment and prevent the opponent from doing the same.

1. Interdiction. Interdiction is traditionally a form of air maneuver. Interdiction consists of operations to divert,

disrupt, delay, or destroy the enemys surface military potential before it can be used effectively against friendly forces.

Chapter 25

Joint Operations  Air Force

440
Although non-traditional in the classic sense, information warfare may also be used to conduct interdiction by

intercepting or disrupting information flow or damaging/destroying controlling software and hardware. Interdiction and

surface maneuver can be mutually supporting. Joint force interdiction needs the direction of a single commander who can

exploit and coordinate all the forces involved, whether air-, space-, surface-, or information-based. The joint force air

component commander (JFACC) is the supported commander for air interdiction. The JFACC uses the JTF

commanders priorities to plan and execute the theater-wide interdiction effort.

2. Close Air Support (CAS). CAS consists of air operations against hostile targets in close proximity to friendly

forces; further, these operations require detailed integration of each air mission with the fire and maneuver of those

forces. CAS provides direct support to help friendly surface forces carry out their assigned missions. CAS produces the

most focused but briefest effects of any counterland mission; by itself, it rarely achieves campaign-level objectives.

However, at times it may be the more critical mission by ensuring the success or survival of surface forces. CAS should

be used at decisive points in a battle.

Strategic Attack. those operations intended to directly achieve strategic effects by striking at the enemys centers of

gravity (COG). These operations are designed to achieve their objectives without first having to necessarily engage the

adversarys fielded military forces in extended operations at the operational and tactical levels of war. This function may

be carried out in support of a theater CINC or as a stand-alone operation by direction of the NCA. Strategic attack should

affect the enemys entire effort rather than just a single action, battle or campaign. If properly applied, strategic attack is

the most efficient means of employing air and space power. Strategic attack is a function of objectives or effects

achieved, not forces employed. The target, not the weapons system, determines if an attack is strategic.

Counterinformation. seeks to establish information superiority through control of the information realm. The focus of

the effort is on countering the enemys ability to attain information advantage. Offensive Counterinformation (OCI):

includes actions taken to control the information environment. The purpose of OCI is to disable selected enemy

information operations. Defensive Counterinformation (DCI): includes those actions that protect our information,

information systems, and information operations from the adversary.

Airlift. Airlift is viewed as the transportation of personnel and materiel through the air and can be applied across the

entire range of military operations in support of national objectives. Airlift is viewed as a bedrock of U.S. national

security at the strategic level and as a crucial capability for operational commanders within a theater. Air Force airlift can

be classified as strategic (inter-theater), theater (intra-theater), and operational support. Inter-theater airlift provides the

air bridge that links theaters to the CONUS and to other theaters, as well as airlift with the CONUS. Intra-theater airlift

provides the air movement of personnel and materiel within a CINCs area of responsibility. Operational support airlift is

airlift provided by assets that are an integral part of a specific Service, component or major command (MAJCOM), and

that primarily support the requirements of the organization to which they are assigned.

Air Refueling. an integral part of U.S. air power across the range of military operations, air refueling significantly

expands the employment options available to a commander by increasing the range, payload, and flexibility of air forces.

Therefore, aerial refueling is an essential capability in the conduct of air operations worldwide and is especially important

when overseas basing is limited or not available.

Spacelift. projects power by delivering satellites, payloads, and materiel into or through space. During a period of

increased tension or conflict, the spacelift objective is to launch or deploy new and replenishment space assets as

necessary to achieve national security objectives. There are three launch purposes. Launch to Deploy: launches required

to initially achieve a satellite systems designed operational capability. Launch to Sustain: launches to replace satellites

that are predicted to fail or abruptly fail. Launch to Augment: launches to increase operational capability in response to

contingency requirements, crisis, or war.

Intelligence, Surveillance, and Reconnaissance (ISR). Intelligence provides clear, brief, relevant, and timely analysis

on foreign capabilities and intentions for planning and conducting military operations. Surveillance is the function of

systematically observing air, space, surface, or subsurface areas, places, persons, or things, by visual, aural, electronic,

photographic, or other means. Reconnaissance complements surveillance in obtaining, by visual observation or other

detection methods, specific information about the activities and resources of an enemy or potential enemy; or in securing

data concerning the meteorological, hydrographic, or geographic characteristics of a particular area.

Chapter 25

Joint Operations  Air Force

441
Combat Search and Rescue (CSAR). CSAR consists of those air operations conducted to recover distressed personnel

during wartime or MOOTW. CSAR is a key element in sustaining the morale, cohesion, and fighting capability of

friendly forces. It preserves critical combat resources and denies the enemy potential sources of intelligence.

Navigation and Positioning. The function of navigation and positioning is to provide accurate location and time of

reference in support of strategic, operational and tactical operations. For example, space-based systems provide the

Global Positioning System, airborne-based systems provide air-to-surface radar, and ground-based systems provide

various navigation aids.

Weather Services. Air Force weather services supply timely and accurate environmental information, including both

space environment and atmospheric weather, to commanders for their objectives and plans at the strategic, operational,

and tactical levels. Weather services also influence the selection of targets, routes, weapons systems, and delivery tactics,

and are a key element of information superiority.

Additional Air Force missions include Countersea, Command and Control (C2), and Special Operations Employment.

ORGANIZATIONAL STRUCTURE

AF Organization. The Air Force has three components: Active Duty, the Air National Guard, and the Air Force

Reserve. The Air Force organizes, trains, and equips air forces through its major commands (MAJCOMs). Active duty

and Reserve component MAJCOMs are subdivided into numbered air forces, wings, groups, and squadrons.

AF Major Commands (MAJCOM). MAJCOM forces are provided to combatant commands for employment. The

organization of these MAJCOMs is based on combat, mobility, space, and special operations, plus the material support

required for these operations. Normally commanded by a General (O-10).

Numbered Air Force (NAF). The NAF is the senior warfighting echelon of the Air Force. A NAF conducts operations

with assigned and attached forces under a command element. When participating in joint operations, the tasked NAF

presents its forces to the JFC as an Aerospace Expeditionary Task Force (AETF). Normally a Lieutenant General (O-9)

commands a CONUS NAF, while a Major General (O-8) commands an OCONUS NAF.

Wing. A wing contains all of the organic assets required to accomplish its organizational function. For instance, a fighter

wing has subordinate groups that provide combat, combat support, and combat service support functions in support of the

wings air combat mission. There are four main groups within a typical wing: the operations group, the logistics group,

the support group, and the medical group. Normally a Brigadier General (O-7) commands a wing.

Group. There are several mutually related squadrons within a group. For example, within a support group, there are

usually civil engineer (CE), mission support (MSincludes personnel, family support, and education flights), finance,

services (formerly morale, welfare and recreation or MWR), and security forces squadrons. Similarly, a logistics group

usually contains transportation, maintenance, and supply squadrons. A Colonel (O-6) normally commands a group.

Squadron. The basic fighting unit of the Air Force is the squadron. Squadrons are not designed to conduct independent

operations. They interact with other squadrons to provide the necessary synergy to conduct effective air and space

operations. Combining squadrons or squadron elements, such as fighters, refueling, and airlift, into deployable groups or

wings is the purpose of an AETF. Normally commanded buy a Lieutenant Colonel (O-5).

Organizing for Air Operations

Joint Task Force (JTF). A JTF is a force composed of assigned or attached elements of the Army, the Navy or the

Marine Corps, and the Air Force, or two or more of these Services, which is constituted and so designated by the

Secretary of defense or by the commander of a unified command, or an existing JTF (Joint Pub 1-02). A JTF often

contains a ground component, an air component, and a naval component.

Joint Force Air Component Commander (JFACC). The JTF commander derives authority from the joint force

commander who has the authority to exercise operational control, assign missions, direct coordination among subordinate

Chapter 25

Joint Operations  Air Force

442
commanders, and redirect and organize forces to ensure unity of effort in the accomplishment of the overall mission. The

joint force commander will normally designate a JFACC. The JFACCs responsibilities are assigned by the JTF

commander and normally include, but are not limited to, planning, coordination, allocation and tasking based on the JTF

commanders apportionment decision. Using the joint forces commanders guidance and authority, and in coordination

with other Services component commanders and other assigned or supporting commanders, the JFACC will recommend

to the joint force commander apportionment of air sorties to various missions or geographic areas.

Air Operations Center (AOC). The principal air operations installation from which aircraft and air warning functions of

combat air operations are directed, controlled, and executed. It is the senior agency of the Air Force Component

Commander from which command and control of air operations are coordinated with other components and Services.

Aerospace Expeditionary Force (AEF). AEFs are composite organizations of aerospace capabilities from which a

tailored Aerospace Expeditionary Task Force, composed of Aerospace Expeditionary Wings, Aerospace Expeditionary

Groups, and Aerospace Expeditionary Squadrons, is created to provide forces to meet theater Commander in Chief

(CINC) requirements. An AEF is not a discrete warfighting unit.

Aerospace Expeditionary Task Force (AETF). An AETF is a tailored, task organized aerospace force presented to a

joint force commander consisting of a deployed NAF headquarters, or command echelon subordinate to a NAF

headquarters, and assigned and attached operating forces (command element plus operating forces). An AETF can be

sized depending on the level and nature of the conflict and the size of the aerospace component required. The AETF is

commanded by the designated Commander, Air Force Forces (COMAFFOR) and is activated by MAJCOM G-series

orders.

Aerospace Expeditionary Wing (AEW). An AEW is a wing or a wing slice assigned or attached to an AETF or an inplace NAF by MAJCOM G-series orders. Normally, the AETF or in-place NAF commander also exercises OPCON of

AEWs. An AEW is composed of the wing command element and some groups. The AEW commander reports to a

COMAFFOR.

Aerospace Expeditionary Group (AEG). An AEG is an independent group assigned or attached to an AETF or inplace NAF by MAJCOM G-series orders. Normally, the AETF or in-place NAF commander also exercises OPCON of

AEGs. An AEG is composed of the group command element and one or more squadrons. The AEG, depending on the

size and structure of the AEF, is the lowest command echelon of AEFs that may report directly to a COMAFFOR.

Contingency Air Base. Contingency air bases are usually group sized elements that provide base operations support

(BOS) personnel, equipment, and infrastructure capable for rapid spin-up to support airlift, refueling, ISR, or air combat

missions in response to NCA or combatant commander directed crisis response taskings.

THE OPERATIONAL LAWYER

Operations Law provides the legal basis for the conduct of all these operations. Following are some examples of

areas in which Air Force judge advocates provide advice to operational unit Commanders during war.

Even before bombs are dropped on targets, judge advocates of all services must review all weapons for compliance

with international law. In the Air Force, AF/JAI has that job. Once our weapons are deemed lawful, the next question is

whether the targets against which they will be employed are also proper under the laws of war. Answering that question,

both in prior planning and in real time, and translating the answer into rules of engagement are perhaps the most

important JAG combat functions. Although EPW (enemy prisoner of war) matters reside within the Armys executive

control, the Air Force is the DoD executive agent for POW issues (issues involving U.S. personnel in enemy captivity).

As such, AF/JAI provides legal advice on problems such as the code of conduct, enemy treatment of our prisoners, and

others.

Operations law also applies to many peacetime matters. Operations lawyers advise on freedom of aerial navigation,

landing issues, and answer questions regarding our rights and responsibilities in space. Law of armed conflict training for

all our personnel is an essential duty for Air Force operations lawyers.

Chapter 25

Joint Operations  Air Force

443
New forms of warfare such as information operations/information warfare are as challenging to the Air Force as to

the other services, and pose significant and novel legal issues. The Air Force is now conducting counterdrug operations

alone and as components to unified commands. AF/JAI is the principal advisor to the Air Force counterdrug operations

division and, as such, coordinates on all deployments of troops in support of law enforcement agencies or foreign

governments. Special operations in low intensity conflict require considerable Air Force support. Legal advice in this

area comes primarily from the judge advocates at the Air Force Special Operations Command (AFSOC/JA) at Hurlburt

Field, Florida.

In addition to the operations law support given by Air Force judge advocates at AF/JAI and the unified commands, it

is important to note the other echelons at which it is available. The Air Force is organized along major command

(MAJCOM) lines. Under Headquarters, Air Force at the Pentagon, field MAJCOMs like Air Combat Command (ACC),

Air Force Materiel Command (AFMC), Air Mobility Command (AMC), U.S. Air Forces in Europe (USAFE), and Pacific

Air Forces (PACAF) provide operational support to the unified commands of which they are components. Below

MAJCOMs are Numbered Air Forces (NAF) and, below NAFs, wings. The wing is the smallest self-contained unit

capable of going into battle. Judge advocates sit on the command staffs at all three of these echelons and provide

operations law advice. During DESERT STORM, JOINT ENDEAVOR, SOUTHERN WATCH, NORTHERN WATCH,

and ALLIED FORCE, judge advocates deployed with their unit Commanders and provided that important advice.

Although the Air Force has a number of discrete, independent missions, its efforts are always in support of the

unified combat effort of all land, sea, and air forces. From the Air Force perspective, the operations lawyers primary

responsibility is to insure that those efforts are conducted within the boundaries of international and domestic U.S. law.

Chapter 25

Joint Operations  Air Force

444
TYPICAL AF WING (NOTIONAL)

Typical AirForceWing

Personal Staff

(JA/Exec/Chaplain)

(Command Sr. NCO)

Fighter

Squadron

(O-5 Commander)

Fighter

Squadron

Fighter

Squadron

Operations

Support

Squadron

OPERATIONS

GROUP

(O-6 Commander)

Civil Engineer

Squadron

(O-5/O-6 Commander)

Communications

Squadron

(O-5 Commander)

Security Forces

(Police)

Squadron

(O-5 Commander)

Mission Support

Squadron

(G-1/Admin/Educ)

(O-5 Commander)

SUPPORT

GROUP

(O-6 Commander)

Supply

Squadron

(O-4/O-5 Commander)

Maintenance

Squadron

(O-5 Commander)

Transportation

Squadron

(O-5 Commander)

Aircraft Generation

Squadron

(O-5 Commander)

LOGISTICS

GROUP

(O-6 Commander)

Dental

Squadron

Patient

Squadron

Aerospace Medicine

Flight

(Flight Surgeons)

Medical

Squadrons

(O-4/O-5 Commanders)

MEDICAL

GROUP

(O-6 Commander)

FIGHTER WING

(O-7 Commander)

Chapter 25

Joint Operations  Air Force

445
AEROSPACE EXPEDITIONARY TASK FORCE (AETF) STRUCTURE

Actual Example o f an AETF

(Deployed NAF)

9 EFS

Holloman

363 AEW

Al Kharj

96 EBS*

Barksdale

2 AEW*

Barksdale

39 EAS

Dyess

4 AEW

SeymourJohnson

9 AETF

SOUTHERN WATCH

* Bombers stationed in CONUS,

but attached to the AETF

All others deployed into theater

335 EFS

SeymourJohnson

336 EFS

SeymourJohnson

Nomenclature:

CW(P) - Composite Wing

(Provisional)

AEW - Aerospace Expeditionary

Wing

EBS - Expeditionary Bomber

Squadron

EFS - Expeditionary Fighter

Squadron

EAS - Expeditionary Airlift

Squadron

Chapter 25

Joint Operations  Air Force

446
AEF COMPONENT AIRCRAFT ASSETS

AEF (x2) AEW

ON-CALL FORCE COMPOSITION

2 Air Superiority SQ

4-6 Multi-Role Fighter SQ

 PGM

 CAS

 SEAD

2 Bomb SQ

 CALCM

 PGM

 Maritime Ops

2 Theater Airlift SQ

2 Air Refueling SQ

OSA, LD/HD & ECS

3 Air Superiority / MultiRole Fighter SQ

 PGM

 CAS

 SEAD

1 B-1 SQ (50% of the time)

1 F-117 SQ

1 B-2 SQ

1 Theater Airlift SQ

1 Air Refueling SQ

Expeditionary Combat

Support (ECS)

Chapter 25

Joint Operations  Air Force

447
MARINE CORPS

MISSION

The Marine Corps primary mission is to be organized, trained and equipped to provide fleet marine forces of

combined arms, together with supporting air components, for service with the fleet in the seizure or defense of advanced

naval bases and for the conduct of such land operations as may be essential to the prosecution of a naval campaign. In

addition, the Marine Corps provides detachments and organizations for service on Navy vessels, security detachments for

the protection of naval property at naval stations and bases, and such other duties as the President may direct. This broad

mission statement translates into a Marine Corps that is many different things to many different people.

Consequently, the ground, air, and supporting forces that make up the Marine Corps are trained and equipped to

make available to the National Command Authority (NCA) the capability to react quickly to any military contingency in

the worlda 911 force. As a result, Marine operational forces are task organized and deployed to meet whatever

contingency mission they may be assigned, ranging from a hasty Noncombatant Evacuation Operation (NEO), such as

Operation Eastern Exit, the evacuation of U.S. and foreign nationals from Somalia in 1991, to sustained ground combat

such as in Operation Desert Storm. Because Marine forces deploy from and are sustained by sea-based platforms, they

are often referred to as expeditionary (being able to operate in areas where there was previously no supporting

infrastructure), or the expeditionary force of choice.

FORCE STRUCTURE

Structure. The Marine Corps is organized as the nations force in readiness into four broad categories: Headquarters

Marine Corps, Operating Forces, Reserves, and the Supporting Establishment. Operating forces (as supplemented by the

Reserves), considered the heart of the Marine Corps, constitute the forward presence, crisis response, and fighting power

available to the combatant commanders. Major elements include the Marine Forces Atlantic, Marine Forces Pacific,

Marine Corps Security Forces, and the Marine Security Guard Battalion with its detachments at embassies and consulates

around the world. About 64 percent of all active duty Marines are assigned to these operating forces. Operating forces

are made available from four (3 active, 1 reserve) Divisions, Wings, and Force Service Support Groups (FSSG).

According to Title 10, U.S. Code, § 5063, the Marine Corps, within the Department of the Navy, shall be so organized as

to include not less than three combat divisions and three air wings, and such other land combat, aviation, and other

services as may be organic therein. A critical priority of the Marine Corps is to maintain its present force structure of

172,200 active duty Marines and 39,966 Reserves.

The FSSG performs the combat service support function. This organization contains the maintenance, supply,

engineer support, landing support, motor transport, medical, dental and other units necessary to support sustained combat

operations. The FSSG is also tasked with providing legal services to the operational units. This is accomplished through

the Legal Services Support Section (LSSS) within the FSSG.

Traditionally, the LSSS is headed by an officer-in-charge usually of the rank of lieutenant colonel. The OIC is

responsible for leading the Marines and managing the assets that will provide the legal services to the fleet. The LSSS

consists of approximately twenty lawyers performing the functions of prosecution, defense, and administrative law. In

garrison, the legal assistance function is performed by the host installation. When the FSSG is deployed, however, this

function transfers to the LSSS. While the OIC is responsible for supporting the legal needs of the operational commands,

he or she does not provide legal advice to the commanding general of the wing or division. That traditional duty remains

with the SJA. Each major command (division, wing, FSSG) has a SJA and a small legal staff consisting of a DSJA and

two or three clerks. The bulk of the legal assets remain in the LSSS.

Task Organization. The Forces for Unified Commands Memorandum assigns Marine operating forces to each of the

combatant commands. Although there are five Marine Corps components, there are only two Marine Corps component

commands. The Marine Corps has established two combatant command level service component commands: Marine

Corps Forces Atlantic and Marine Corps Forces Pacific. The II Marine Expeditionary Force is provided by Commander,

Marine Corps Forces Atlantic to the Commander-in-Chief, U.S. Joint Forces Command and the I and III Marine

Chapter 25

Joint Operations  Marines

448
Expeditionary Forces are provided by the Commander, Marine Corps Forces Pacific to the Commander-in-Chief, U.S.

Pacific Command. This assignment reflects the peacetime disposition of Marine Corps Forces (MARFORs). Marine

expeditionary forces are apportioned to the remaining geographic combatant commands for contingency planning and are

provided to the combatant commands when directed by the Secretary of Defense.

In order to meet mission oriented expeditionary requirements, the Marine Corps has developed the concept of Marine

Air Ground Task Force (MAGTF) organization. The MAGTF is the Marine Corps principle organization for the conduct

of all missions across the range of military operations. The MAGTF provides a combatant commander-in-chief or other

operational commanders with a versatile expeditionary force for responding to a broad range of crisis and conflict

situations. MAGTFs are balanced, combined arms forces with organic command, ground, aviation and sustainment

elements. It is a building block concept: the fleet/joint commanders operational requirement or task is analyzed, and

type units are drawn from a Marine division, aircraft wing, and FSSG into an air-ground-logistics team under one

commander to meet the task. The resulting MAGTF may be of any size, and the weight and composition of its

component elements may vary, depending on the mission and enemy situation. In each case, there will be a MAGTF

command element (CE), a ground combat element (GCE) (under certain conditions, more than one), an aviation combat

element (ACE), and a combat service support element (CSSE).

Four types of MAGTFs can be tasked organized as follows: the Marine Expeditionary Force (MEF), the Marine

Expeditionary Brigade (MEB), the Marine Expeditionary Unit (Special Operations Capable) (MEU(SOC)), and the

Special Purpose Marine Air Ground Task Force (SPMAGTF).

A MEF is the principal Marine Corps warfighting organization, particularly for a larger crisis or contingency, and is

normally commanded by a Lieutenant General. A MEF can range in size from less than one to multiple divisions and

aircraft wings, together with one or more FSSGs. With 60 days of accompanying supplies, MEFs are capable of both

amphibious operations and sustained operations ashore in any geographic environment. With appropriate augmentation,

the MEF command element is capable of performing as a Joint Task Force (JTF) Headquarters.

A MEB is an intermediate size MAGTF that bridges the gap between the MEF and the MEU. A MEB can operate

independently, or serve as the advance echelon of the MEF. It is normally composed of a reinforced infantry regiment, a

composite Marine Air Group (MAG), and a Brigade Service Support Group (BSSG). With 30 days of supplies, a MEB is

capable of conducting amphibious assault operations and maritime prepositioning force (MPF) operations. During

potential crisis situations, a MEB may be forward deployed afloat for an extended period in order to provide an

immediate combat response.

Forward deployed MEU (SOCs) embarked aboard Amphibious Ready Group (ARG) shipping operate continuously

in the areas of responsibility of numerous Unified Commanders. These units provide the National Command Authorities

and Unified Commanders an effective means of dealing with the uncertainties of future threats by providing forward

deployed units which offer unique opportunities for a variety of quick reaction, sea-based, crisis response options in either

a conventional amphibious/expeditionary role or in the execution of maritime special operations. MEU (SOCs) train for

operations to be executed within 6 hours of receipt of the mission. The forward deployed MEU (SOC), forged and tested

in real-world contingencies, remains the benchmark forward operating Marine force. The MEU is commanded by a

colonel and deploys with 15 days of accompanying supplies. It is composed of a reinforced infantry battalion, a

composite squadron, and a MEU service support group.

A SPMAGTF is task organized to accomplish a specific mission, operation, or regionally focused exercise. As such,

SPMAGTFs can be organized, trained, and equipped to conduct a wide variety of expeditionary operations ranging from

crisis response to training exercises and peacetime missions. Their duties cover the spectrum from non-combatant

evacuation to disaster relief and humanitarian missions.

CAPABILITIES

As the U.S. reduces the number of its permanently based overseas military forces, forward-deployed, selfsustainable, naval forces provide the ability for continued presence and power projection. Naval forces enable the U.S. to

secure access to ports, airfields and routes for the sequenced employment of heavier U.S. and allied forces. Moreover,

expeditionary forces can deter crises, influence friends and foes, provide humanitarian assistance and fight if required.

Chapter 25

Joint Operations  Marines

449
For instance, Operation SEA ANGEL in Bangladesh involved the 5

th Marine Expeditionary Brigade (MEB) which

was diverted from its return to CONUS after 5 months in Desert Shield/Storm. During this disaster relief mission, 5

th

MEB delivered over 2,000 tons of food, fuel, medicine and equipment. This task force included Army Blackhawk

helicopters, Green Beret assessment teams, Air Force C-130 transport aircraft, a Navy Amphibious Group and members

of the U.S. Agency for International Development. During Operation Eastern Exit in January 1991, 13th MEU(SOC)

helicopters launched from Navy ships at night, from over 400 NM from Mogadishu to conduct a NEO from civil war torn

Somalia. The 281 evacuees included diplomats from Britain, Germany, Kenya, Kuwait, Nigeria, Oman, Sudan, Turkey,

UAE: 39 Soviets and 61 Americans. The naval units involved, which had to be diverted from Desert Storm, received the

order and departed on their mission only 3 days prior from a distance of 2,000 miles.

An overriding requirement for MAGTFs, and especially MEU(SOC) MAGTFs, is the ability to plan rapidly and

effectively for the execution of real world contingency with the forces, lift, logistics, and enemy situation at hand. To this

end, MAGTFs deploy by amphibious shipping and airlift and are sustained on the ground by the Maritime Prepositioned

Force (MPF) or other prepositioned equipment. The MPF program, which began in 1981, consists of 16 self-sustaining,

roll-on/roll-off ships operated by the Military Sealift Command (MSC) and organized into three MPS squadrons

(MPSRons). Each MPSRon provides enough tanks, artillery, vehicles, ammunition, supplies, food, fuel, and water to

support a MEB for 30 days of combat. The ships can be used separately or in larger groups to support smaller or larger

MAGTFs. A single MPF ship is capable of supporting a MEU for 30 days.

After a decade of theory, the MPF program got its first real world test in Desert Shield/Desert Storm. On 14 August

1990, the leading elements of 7

th MEB arrived in Saudi Arabia from 29 Palms, CA, via strategic airlift, and drew its

equipment and supplies from the MPSRon-2, which had deployed from Diego Garcia to the Saudi port of Al Jubayl.

Fully deployed, the 7

th MEB was comprised of 15,248 Marines, 123 main battle tanks, and 124 fixed and rotary wing

aircraft. On 26 August 1990, the leading elements of 1st MEB arrived at Al Jubayl and married up with its equipment offloaded from MPSRon-3, which had deployed from Guam. The 1

st MEB had an equivalent amount of combat power to

7

th MEB.

In addition to the 1

st and 7th MEBs deployed ashore during Desert Shield/Storm, the Marine Corps also deployed two

MEBs and a MEU(SOC) afloat. The 4

th MEB deployed from Camp Lejeune, NC, and the 5th MEB deployed from Camp

Pendelton, CA. Unlike the airlifted 1

st and 7th MEBs, the 4th and 5th MEBs deployed with all weapons, equipment, and

supplies embarked on its amphibious assault ships. The 13th MEU(SOC) was already in the Western Pacific on a routine

six month deployment when Desert Shield began, and it quickly moved into the Persian Gulf. Together, the 4

th and 5th

MEBS, and the 13th MEU(SOC), comprised over 18,000 Marines capable of conducting amphibious forcible entry

operations anywhere in the Persian Gulf area of operations.

ROLE OF THE MARINE OPERATIONAL LAWYER

The expeditionary nature of the Marine Corps mission sets the tone for the practice of operational law in the Marine

Corps. Because expeditionary operations will necessarily involve ground, air and sea forces, Marine operational lawyers

must be familiar with the law of land warfare as well as the law of the sea, air and space. While the Marine Corps is

rarely involved in overseas stationing, the Marine JA must nevertheless be familiar with applicable SOFAs, the foreign

claims process, and contingency contracting in order to properly support short-term deployments to foreign countries.

Furthermore, the Marine Corps ability to shape events short of war requires that the operational JA have a solid grasp of

the standing rules of engagement as well as appreciation for the combat considerations that may require the modification

of ROE to the specific mission.

The specific role of the Marine operational lawyer is largely determined by the extent to which the JA gains the

confidence of the commander and his staff. Consequently, a Marine operational lawyer must not only be technically

proficient, but must continue to acquire and hone those military skills that readily identify Marine JAs with the elite units

they support. A Marine operational lawyer must be familiar with, and involved in, the operations planning and plan

review process as well as functionally proficient in the more traditional tasks of legal assistance, claims, military justice,

and fiscal law. Every MAGTF will have at least one JA deployed with the unit, and in the case of a MEF, will have a

number of JAs assigned. These JAs are selected from the pool of assets available in the LSSS. The MAGTF JA for a

MEU-size or smaller unit will serve as the legal advisor to the commander of the deployed unit. MEU JAs have

traditionally performed a variety of additional non-legal duties, such as Detachment Executive Officer, Assistant

Chapter 25

Joint Operations  Marines

450
Operations Officer, Landing Force Operations Center watch officer, Staff Secretary, MEU Adjutant, and custodian of

classified documents and cryptographic equipment.

Chapter 25

Joint Operations  Marines

451
Ch

apter 25

Joint Operations Marines

452
Ch

apter 25

Joint Operations Marines

453
Chapter 25

Joint Operations  Marines

454

Marine Expeditionary Brigade
Marine Expeditionary Unit

CE

MEU Command

Element

GCE

Reinforced Infantry

Battalion

ACE

Composite Squadron

CSSE

MEU Service

Support Group

16 Light Armored Vehicles (LAV) 12 CH-46E Medium Lift Helicopters 2 Reverse Osmosis Water Purification Units

8 81mm Mortars 4 CH-53E Heavy Lift Helicopters 1 LMT 3000 Water Purification Unit

8 TOWs 3 UH-1N Utility Helicopters 1 Sea Tractor

8 Javelins 4 AH-1W Attack Helicopter 4 TRAMs (10,000 lb. Capacity Forklifts)

15 AAVs 6 AV-8B Harrier Jets 2 Four Thousand lb. Capacity Forklifts

6 155mm Howitzers 2 KC-130 Refueler/transport Aircraft 3 D-7 Bulldozers

4 M-1A1 Main Battle Tanks (On call in CONUS) 30 Five-ton Trucks

1 Dump Truck

4 Logistical Vehicle Systems (LVS)

7 Five-hundred gallon Water Containers

63 HMMWVs

Chapter 25

Joint Operations  Marines

455
NAVY

The 1997 National Military Strategy is based upon an integrated, strategic approach embodied by the terms Shape,

Respond, and Prepare Now.

373 It builds upon the premise that the U.S. will remain globally engaged to Shape the

international environment, creating conditions favorable to U.S. interests and security; it emphasizes that our forces must

be able to Respond to the full spectrum of crises, and that we must, as a nation, take steps to Prepare Now for an

uncertain future. The U.S. Navy plays a key role in accomplishing these goals, providing the strategic tools for overseas

presence and power projection.374

In September 1992 the Navy and Marine Corps published their strategy white paper entitled .. From the Sea,

Preparing the Naval Service for the 21st Century. The document represents the Sea Services analysis of post Cold War

strategy. Instead of focusing attention on open ocean warfighting against the Soviet Union, the new strategy emphasizes

regional conflicts in the littoral (near land) regions of the world. From the Sea defines the littoral region as consisting

of a seaward and landward segments.

375 To accomplish the overall mission, naval forces will emphasize the traditional

expeditionary roles of naval forces, an eagerness to conduct joint operations, the need to operate forward, and the need to

tailor forces for National Needs.376 The strategy recognizes that future operations will have a significant joint/combined

flavor, on the excellent model of Operation UPHOLD DEMOCRACY (Haiti).377

The fundamental building blocks of naval power are the Marine Air Ground Task Force (MAGTF), discussed above,

and the aircraft carrier battle group (CVBG). The CVBG generally consists of the aircraft carrier (CV/CVN) and its

embarked airwing of approximately 80 fixed and rotary-winged aircraft (F-14, F/A-18, S-3, EA-6B, E-2, SH-3); two

cruisers, two or three destroyers; two frigates; one or two replenishment/repair ships; and two submarines. The Battle

Group (BG) is normally commanded by a rear admiral (one or two stars), who has a lieutenant commander (O-4) as his

staff judge advocate (SJA). The SJA is essentially a solo practitioner who is assigned to the admirals staff.

378

This littoral environment provides operational judge advocates with significant and unique legal challenges. Two

examples illustrate this point. First, drafting Rules of Engagement (ROE) requires significant attention, as a result of

diminished response times and the likelihood of target discrimination problems in heavily populated coastal areas.

Furthermore, operating in the littoral requires extensive familiarity with freedom of navigation and overflight issues

treated in the United Nations Convention of the Law of the Sea (UNCLOS III).379

The fundamental reference for those operating in the littoral environment is the annotated version of NWP 1-14M

(previously NWP 9(A)), The Commanders Handbook on the Law of Naval Operations. The basic document contains no

reference to sources of authority for statements of relevant law in order to simplify the reading for that publications

intended audiencethe operational commander and his non-lawyer staff. The annotated version of the NWP, however, is

373 Chairman, Joint Chiefs of Staff, National Military Strategy of the United States of America (1997).

374 Id.

375 Seaward is defined as "the area from the open ocean to the shore which must be controlled to support operations ashore;" Landward is defined as

"the area inland from the shore that can be supported and defended directly from the sea." SECRETARY OF THE NAVY, .. FROM THE SEA, PREPARING THE

NAVY FOR THE 21ST CENTURY 6 (1992).

376 Id. at 7. See also, NAVAL DOCTRINE PUBLICATION 1, 28 March 1994.

377 Aircraft carriers America (CV 66) and Eisenhower (CVN 69) embarked approximately 2,000 soldiers from the 10th Mountain Division and 2,000

from the 82d Airborne Division, plus their associated helicopters. The JTF Staff Judge Advocate, COL Altenburg, XVIII Airborne Corps SJA, was

embarked on USS Mount Whitney (LCC 20). Clinton Offers Haitian Junta Chance to Go Without Fight, N.Y. TIMES, Sept. 15, 1994, at A1.

378 The battle group commander, if not operating as head of, or a component of a Joint Task Force (JTF), will usually be operating under the direction of

a numbered fleet commander (2d, 3d, 5th, 6th, or 7th), who will have a more senior staff judge advocate (O-5), but the battle group commander will rely

almost exclusively on his own SJA. He or she will be relied upon for advice on a variety of issues ranging from rules of engagement to military justice

and foreign claims. Note also that each carrier has two judge advocates as part of the "ship's company." Those judge advocates work for the

commanding officer of the carrier (an O-6), and will be primarily concerned with discipline on board the carrier. However, the battle group SJA and the

carrier SJA often cooperate on military justice and claims issues.

379 The United States considers the freedom of navigation provisions of UNCLOS III to reflect customary international Law of the Sea. In 1983

President Reagan stated that the U.S. would follow those provisions as part of U.S. Ocean Policy. 19 WEEKLY COMP. PRES. DOC. 877 (Mar. 10, 1983).

Furthermore, on 6 October 1994, Following the U.S. signing of an agreement to amend the objectionable part of UNCLOS III dealing with deep seabed

mining, President Clinton sent UNCLOS III to the Senate for its advice and consent.

Chapter 25

Joint Operations  Navy

456
particularly helpful to Judge Advocates. Prepared by the Oceans Law and Policy Department, Center for Naval Warfare

Studies at the Naval War College (Newport, Rhode Island), the annotated NWP 1-14M provides the text of the

Commanders Handbook verbatimwith accompanying citation to authorities, as well as supplementary annexes, figures

and tables. The annotated NWP 1-14M is designed to support academic and research programs and is thus the rough

equivalent of the Armys FM 27-10.

Chapter 25

Joint Operations  Navy

457
COAST GUARD

REFERENCES

1. Title 14, U.S. Code (14 USC 1, 2, 3, 4, 89, 141 and 143, in particular)

2. Commanders Handbook on the Law of Naval Operations, COMDTPUB 5800.7, (NWP

1-14M and Annotated Supplement)

3. Maritime Law Enforcement Manual (MLEM), COMDTINST M16247.1A (FOUO)

4. Maritime Counter Drug and Alien Migrant Interdiction Operations, COMDTINST

M16247.4 (NWP 3-07.4)(FOUO)

5. Marine Safety Manual, COMDTINST M16000 (series)

6. Criminal Enforcement of Environmental Laws, COMDTINST M16201.1

7. Coast Guard 2020

8. Commandants Direction 1998-2002

9. USCG Website - http://www.uscg.mil

10. OPS Law Fast Action Binder  http://cgweb.comdt.uscg.mil/G-OPL/G-OPL.htm

11. Coast Guard Roles and Missions Study  http://www.uscg.mil/news/R&M.html

12. Standing Rules of Engagement for U.S. Forces, CJCSI 3121.01A, dated 15 Jan 2000, CG

Application  ALCOAST 214/00, COMDTNOTE 16242

13. Military Justice Manual, COMDTINST M5810.1D

OVERVIEW

This chapter provides an overview of the unique operational law issues faced by the Coast Guard, with a focus upon

the Coast Guards interaction with the DOD services. As an armed service, the Coast Guard shares many similar roles

with the DOD services with regard to OPLAW and national security. However, as part of the Department of

Transportation, and the primary maritime law enforcement agency, the Coast Guards missions are unique, and some

operational law issues are significantly different. Coast Guard OPLAW issues are often related to law enforcement

jurisdiction and are often resolved through the interagency process. (See Presidential Directive 27, Procedures Dealing

with Non-Military Incidents, 17 Jan 78).

MISSION

The United States Coast Guard is a multimissioned maritime service and one of the Nations five armed forces. Its

mission is to protect the public, the environment, and U.S. economic interests  in the Nations ports and waterways,

along the coast, on international waters, or in any maritime region as required to support national security. (reference 7).

ORGANIZATION

The Coast Guard operates under the Department of Transportation, except in time of war or when directed by the

President to report to the Secretary of the Navy. Coast Guard Headquarters is responsible for policy development and

overall Coast Guard operations and logistics. There are two area commands, Atlantic Area and Pacific Area, with

intermediate command authority. The area commanders are also district commanders. The Areas each have a

Maintenance and Logistics Command for support functions and several districts for operational command of units. The

districts have operational control over most Coast Guard operational units, including cutters, groups, air stations and

marine safety offices/captain of the port offices. Smaller units, however, such as patrol boats and stations, are normally

under the operational control of groups. There are command centers at Headquarters, the Areas and the Districts to

control operations within their areas of responsibility.

Chapter 25

Joint Operations  Coast Guard

458
Ch

apter 25

Joint OperationsCoastGuard

459
Commander, Atlantic Area and Fifth District  Portsmouth, VA

Commander, Maintenance and Logistics Command Atlantic  Norfolk, VA

Commander, First District  Boston MA

Commander, Seventh District  Miami, FL

Commander, Eighth District  New Orleans, LA

Commander, Ninth District  Cleveland, OH

Commander, Pacific Area and Eleventh District  Alameda, CA

Commander, Maintenance and Logistics Command Pacific  Alameda, CA

Commander, Thirteenth District  Seattle, WA

Commander, Fourteenth District  Honolulu, HI

Commander, Seventeenth District  Juneau, AK

MISSION OVERVIEW

The Coast Guard occupies a unique position as an armed service that serves as the nations primary maritime law

enforcement agency, but is probably best known for its humanitarian service to the public. The Coast Guards history

reveals a gradual accumulation of additional responsibilities resulting primarily from its status as the nations primary

maritime law enforcement agency. The Coast Guard enforces all federal laws and regulations pertaining to maritime

matters.

While the more familiar non-defense missions dominate the public perception of the Coast Guard, it remains a

military service. Indeed, it is an important and unique asset in Americas multifaceted security strategies at home and

abroad. Its fundamental roles are to protect the public, the environment, and U.S. economic and security interests in

Americas inland waterways, ports and harbors; along some 95,000 miles of U .S. coastline; in the U.S. territorial seas

and our nearly 3.4 million square miles of exclusive economic zones; on international waters and in other maritime

Chapter 25

Joint Operations  Coast Guard

460
regions of importance to the United States. The nation's maritime borders reflect maritime jurisdiction and sovereignty

concerns which continue to expand, as evidenced by the recent declaration that extended the U.S. contiguous zone from

12 to 24 nautical miles (reference 11).

LAW ENFORCEMENT

The specific statutory authority for the Coast Guard Law Enforcement mission is 14 U.S.C. § 2: "The Coast Guard

shall enforce or assist in the enforcement of all applicable laws on, under and over the high seas and waters subject to the

jurisdiction of the United States." In addition, 14 U.S.C. § 89 provides the authority for U.S. Coast Guard active duty

commissioned, warrant and petty officers to enforce applicable U.S. law on waters subject to U.S. jurisdiction, as well as

on all vessels subject to U.S. jurisdiction (including U.S., foreign and stateless vessels). 14 U.S.C. § 141 authorizes the

Coast Guard to assist other agencies and to receive assistance from other agencies.

The Coast Guard, unlike the DOD services, is not constrained by the Posse Comitatus Act (see 18 U.S.C. §1385),

which makes it a crime to willfully use the Army or Air Force as a posse comitatus or otherwise to execute the laws. The

Act was made applicable to the Navy and Marine Corps by policy (SECNAVINST 5820.7 of 15 May 1974).

Notwithstanding these provisions, the DOD services are authorized to assist, and do significantly assist, Coast Guard law

enforcement with intelligence information and equipment, as authorized by 10 U.S.C. §371, et seq. Coast Guard Law

Enforcement Detachments (LEDETS) are routinely deployed on U.S. Navy ships and have been very successful in

interdicting illegal narcotics.

DRUG INTERDICTION:

The Coast Guard is the lead federal agency for maritime drug interdiction. As such, it is a key player in combating

the flow of illegal drugs to the United States. The Coast Guard's mission is to reduce the supply of drugs by denying

smugglers the use of air and maritime routes in the Transit Zone, a six million square mile area, including the Caribbean,

Gulf of Mexico and Eastern Pacific. In meeting the challenge of patrolling this vast area, the Coast Guard coordinates

closely with other federal agencies and countries within the region to disrupt and deter the flow of illegal drugs. The U.S.

has negotiated a number of bilateral agreements with Caribbean and South American Nations to assist in law

enforcement.

MIGRANT INTERDICTION

The Federal Government has implemented policies to streamline the interdiction of illegal migrants at sea. In 1992,

President Clinton signed Executive Order 12807, which eliminated the requirement that migrants be screened at sea for

refugee status. Presidential Directive 9, signed in 1993, provides policy guidance to federal agencies stating that the U.S.

Government "will take the necessary measures to preempt, interdict and deter alien smuggling into the U.S." It now

specifically tasks the Coast Guard with interdicting illegal migrants as far as possible from U.S. shores. The nature of the

migrant interdiction mission has been changing to respond to increasingly sophisticated smuggling operations.

FISHERIES

Protecting the U.S. Exclusive Economic Zone and key areas of the high seas is an important mission for the Coast

Guard. The Coast Guard enforces fisheries laws at sea, primarily the Magnuson-Stevens Fisheries Conservation and

Management Act (MFCMA). Coast Guard fisheries priorities, in order of importance, are:

1. Protecting the U.S. Exclusive Economic Zone from foreign encroachment: The MFCMA of 1976 extended U.S.

fisheries management authority out to the full 200 nautical miles authorized by international law. The U.S. EEZ is the

largest in the world, containing 3.3 million square miles of ocean and 90,000 miles of coastline.

2. Enforcing domestic fisheries law: U.S. domestic fisheries support a 24 billion dollar industry. Fisheries

Management Plans (FMPs), to ensure the sustainability of these fisheries, are developed by regional Fisheries

Management Councils. The Coast Guard is responsible for enforcing these FMPs at sea, in conjunction with National

Marine Fisheries Service. In addition to FMP enforcement, the Coast Guard enforces laws to protect marine mammals

and endangered species.

Chapter 25

Joint Operations  Coast Guard

461
3. International fisheries agreements: The Coast Guard works closely with the Department of State to develop and

enforce international fisheries agreements. Most notably, the Coast Guard enforces the United Nations High Seas Driftnet

Moratorium in the North Pacific, where illegal driftnetters may catch salmon of U.S. origin.

ENVIRONMENTAL CRIMES

The Coast Guard role in protecting the marine environment manifests itself most clearly on the issue of oil pollution.

Arguably, the grounding of the Exxon Valdez on March 23, 1989 was the catalyst for the publics demand for greater

protection of our marine environment. In response to this largest oil spill in U.S. history, Congress passed the Oil

Pollution Act of 1990 ("OPA 90"). OPA 90 tasked the Coast Guard with writing new federal regulations aimed at

substantially reducing the likelihood of oil spills. These regulations placed new demands on the Coast Guard and

solidified the role of the Coast Guard as the federal agency with primary responsibility for preventing and responding to

maritime oil spills. Increasingly, the Coast Guard is involved in the prosecution of environmental crimes. Critical acts

for environmental enforcement include OPA 90, Clean Water Act (CWA), Act to Prevent Pollution From Ships (APPS),

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), Ocean Dumping Act, and Refuse

Act. Criminal prosecutions have also been based upon False Representations of an Official Matter (18 U.S.C. 1001)(see

reference 6).

NATIONAL SECURITY

The Coast Guard is one of the armed forces of the United States. It has fought in all of our nations wars. It

continues to operate with the Navy in all theaters. Coast Guard vessels participate in Freedom of Navigation (FON)

exercises and other military exercises. Coast Guard Area Commanders are Commanders of Maritime Defense Zones.

The Coast Guard can also issue regulations to create safety zones and security zones to facilitate force protection.

USE OF FORCE POLICY/RULES OF ENGAGEMENT

The Coast Guard follows the Standing Rules of Engagement (SROE) for all Coast Guard Operations with regard to

unit self defense, notwithstanding the DOD limitation of extraterritorial application (reference 12). However, most use of

force issues arise in the mission accomplishment context of law enforcement and are governed by the Coast Guard Use of

Force Policy contained in Chapter 4 of the Maritime Law Enforcement Manual (reference 3). Navy units operating under

Coast Guard OPCON or TACON will follow the Coast Guard Use of Force Policy for employing warning shots or

disabling fire, and the SROE for all other purposes. This law enforcement focus on the force necessary for compliance, as

well as defense of self and others, distinguishes Coast Guard use of force from more traditional military use of force

issues. However, peacekeeping and domestic operations for the DOD services address many of the same use of force

issues.

MARINE SAFETY

The Coast Guard Marine Safety Program is multifaceted. It includes Marine Inspections, Marine Investigations,

Licensing, Captain of the Port, Environmental Response, and Special Interest Vessel Programs, as well as promulgating

local regulations. The Port State Control Program responds to the potential threats of 7,500 foreign ships calling at U.S.

ports each year, ensuring that the ships meet international standards implemented under international conventions such as

the International Convention for the Safety of Life (SOLAS) and the International Convention for the Prevention of

Pollution from Ships (MARPOL), as well as U.S. standards. The Coast Guard Captain of the Port (COTP) is responsible

for vessel boardings, ensuring the safety of vessels and protecting the navigable waterways throughout his or her

geographic zone. There are 45 COTPs zones outlined in Title 33, Code of Federal Regulations (33 CFR Part 3). The

major interface with the DOD services is in the Captain of the Port Area, both in regulating vessel movement and in

establishing safety zones and security zones. Marine Safety Offices/COTPs will also be the primary units responding to

environmental issues such as oil spills.

SEARCH AND RESCUE

Search and Rescue (SAR) is a cornerstone mission of the Coast Guard. The Coast Guard saves thousands of lives

and millions of dollars of property each year. However, SAR is also a mission governed by risk management and with

Chapter 25

Joint Operations  Coast Guard

462
significant danger for the Coast Guard units responding. It is controlled by the National SAR Plan which divides the U.S.

area of SAR responsibility. The Coast Guard is the Maritime SAR Coordinator. Also, while the Coast Guard has limited

duty to respond in search and rescue cases, it may incur substantial liability if it responds and does not respond

adequately. False SAR cases are also vigorously prosecuted, due to the commitment of Coast Guard resources, under 14

U.S.C. §88(c).

MILITARY JUSTICE

The Coast Guard is an armed force subject to the UCMJ. The Coast Guard utilizes the Manual for Courts-Martial in

the same manner as the DOD services. Virtually the same nonjudicial punishment provisions apply under Article 15,

UCMJ. Coast Guard specific procedures and forms are located in the Coast Guard Military Justice Manual (reference

13).

CG/DOD LEGAL INTERFACE

Legal advice on issues of Coast Guard Operational Law is readily available. Most issues will fall under the

responsibility of the Chief, Office of Maritime and International Law at Coast Guard Headquarters (G-LMI), phone (202)

267-1527. Also, each operational commander has a staff judge advocate. Finally, Coast Guard law specialists are

assigned to joint commands with significant law enforcement mission focus, for example JIATF East.

Chapter 25

Joint Operations  Coast Guard

463
NORTH ATLANTIC TREATY ORGANIZATION (NATO)

The North Atlantic Treaty Organization (NATO) has existed for just over 50 years, yet its organizational structure

remains obscure to many judge advocates. This chapter discusses the NATO structure and decision making process.

Twelve countries founded the NATO on 4 April 1949 by signing the North Atlantic Treaty in Washington, D.C. The

location of the signing of this treaty explains why it is often referred to as the Washington Treaty. Today, NATO

Headquarters is located in Brussels, Belgium.

Article 9 of the North Atlantic Treaty develops the basic structure of NATO. First, a Council is established to

consider matters concerning the implementation of this Treaty. This Council is known as the North Atlantic Council

(NAC). All NATO members have a Permanent Representative (PermRep) of ambassadorial rank in the NAC. PermReps

must be available to meet promptly at any time. The NAC meets regularly, usually on Wednesdays, to fulfill its treaty

based obligation.

Article 9 also created such subsidiary bodies as may be necessary, specifically requiring establishment of a defence

committee. We know this committee as the NATO Military Committee. This committee is composed of the Military

Representatives (MilReps), usually three star officers, from the members participating in NATOs integrated military

structure including, by special arrangement, France. The Military Committee (MC) is the senior military authority in

NATO and is the primary source of military advice to the Secretary General and the NAC/ Defence Planning Committee.

The Military Committee meets regularly, usually on Thursdays. The Defence Planning Committee (DPC), consisting of

all NATO members except France, is the highest authority in defense policy matters involving the integrated force

structure. Simply put, the DPC is a meeting of the PermReps except France.

Article 9 also specifically tasks the defence committee to recommend measures for the implementation of Articles 3

and 5. Article 3 requires the Parties, separately and jointly, by means of continuous and effective self-help and mutual

aid, [to] maintain and develop their individual and collective capacity to resist armed attack. Thus NATO seeks to be

interoperable across 17 militaries, some with several branches. The reader should note that France does not participate in

the integrated military structure of NATO and Iceland has no military. The individual nations have joint and individual

responsibilities to be able to defend themselves and others.

There are five other subsidiary bodies that warrant consideration, the International Staff, the International Military

Staff, the Political Committee, and the two Strategic Commands. The International Staff (IS) provides direct support to

the NAC/DPC and the civilian committees under them. The IS plays a facilitating role to attain consensus among the

Allies by chairing meetings, preparing policy recommendations and drafting communiqués and reports. The International

Military Staff (IMS) is the supporting staff for the Military Committee. It is composed of military officers from each

NATO country. The Political Committee is a forum for regular political consultations that is chaired by the Assistant

Secretary General for Political Affairs. Its members are the political counsellors of each NATO delegation. Besides

keeping abreast of political trends and developments of interest to the members, the Committee prepares studies of

political problems for discussion by the NAC and submits reports on subjects to be debated. The Political Committee is

tasked to follow up on and implement NAC decisions.

The Strategic Commands (SCs) of NATO are SACEUR and SACLANT. The SACEUR is located at Supreme

Headquarters Allied Powers Europe (SHAPE) in Mons, Belgium, located about 45 miles south of NATO Headquarters.

SACLANT is located in Norfolk, Virginia. The SCs are responsible to the Military Committee for the overall direction

and conduct of all NATO military matters within their command areas. The SCs provide direct advice about their

command to the Military Committee and are authorized to provide direct advice to the NAC/DPC on matters pertaining to

their commands, keeping the Military Committee simultaneously informed. When preparing for and conducting

operations, the SCs receive political guidance directly from the NAC/DPC. SACEUR and SACLANT are continuously

represented at NATO Headquarters by a representative from their respective staffs to facilitate the timely two-way flow of

information.

Chapter 25

Joint Operations  NATO

464
Chapter 25

Joint Operations  NATO

465

Figure 1: NATO Structure
Article 5 is the soul of NATO in that [t]he Parties agree that an armed attack against one or more of them in Europe

or North America shall be considered an attack against them all. This Article forms the basis for the collective

defense, but it is not unlimited since if such an armed attack occurs, each of them, in exercise of the right of individual or

collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so

attacked by taking forthwith, individually, and in concert with the other Parties, such action as it deems necessary,

including the use of armed force, to restore and maintain the security of the North Atlantic area. [emphasis added].

This article, as well as Article 51 of the United Nations Charter, requires notification to the United Nations Security

Council of [m]easures taken in self-defence. Actions planned or actually undertaken pursuant to Article 5 are referred

to as Article 5 Operations. Article 6 defines the area where Article 5 applies, that is, essentially, on the territory of any

of the Parties in Europe or North America or the islands in the North Atlantic under the jurisdiction of any of the

Partiesnorth of the Tropic of Cancer. Also included in the geographic confines of Article 6 are attacks on the

forces, vessels, or aircraft of any of the Parties when in or over these territories the Mediterranean Sea or the North

Atlantic area north of the Tropic of Cancer. Besides Article 5 operations, NATO conducts non-Article 5 operations.

Often these non-Article 5 operations are referred to as Peace Support Operations, or PSOs. The first NATO PSO was

the Implementation Force (IFOR) in 1995, pursuant to the General Framework Agreement for Peace (GFAP, also known

as the Dayton Peace Accord).

NATO has expanded four times and now numbers 19 members. A fifth expansion could occur as early as 2002. The

expansion process is elaborated in Article 10 of the Treaty. Specifically, any other European State may be invited to

join NATO. The invitation is made by unanimous agreement of the current members and is based on the invitees ability

to further the principles of the Treaty and contribute to the security of the North Atlantic area.

To assist the candidate nation, NATO has developed the Membership Action Plan (MAP). While not establishing

criteria, the MAP is a consultative process between NATO and the prospective member to ascertain the progress toward

membership. The MAP is divided into five areas dealing with political and economic issues, military and defence issues,

resource issues, security issues and legal issues. Each aspiring nation will draft an annual national programme on

preparations for possible membership, setting objectives for its preparations, and containing specific information on step

being taken on the preparations. Participation in MAP does not imply a timeframe for or guarantee of NATO

membership. Decisions on membership have been, and will continue to be, decided on a case-by-case basis. The

Alliance has no precondition for stationing troops or nuclear weapons on the territory of new members. New members

must accede to several key NATO status and technical agreements.

Chapter 25

Joint Operations  NATO

466
NATO Decision Process: Silence Procedure

NAC tasks MC IMSCOM to Strategic Commands

Strategic Commands response

IMSWM Issued under

Silence Procedure to the 19

Silence is NOT Broken Silence is Broken

IMSWM goes forward as a

MC Memorandum (MCM)

to the NAC as military advice

USMILREP sends a

USM to CMC

CMC convenes MC

Consensus then

MCM sent to NAC

as military advise

Consensus NOT

reached then CMC

submits CMCM to

Sec Gen as military

advice

FIGURE 2: NATO DECISION-MAKING

PROCESS

Chapter 25

Joint Operations  NATO

467
The Alliance rests upon commonality of views and a commitment to work for consensus. To enhance the consensus

building process NATO developed the silence procedure. The silence procedure permits the members to have a vote after

discussions and debates have been held in the working groups.

The NAC tasks the Military Committee to provide guidance on an issue. The MC provides guidance to the SCs, who

develop their input and report back to the MC. Then the MC tasks the IMS to develop a document called an IMS Working

Memorandum (IMSWM, pronounced Im Swim). This document is sent to each member for consideration and

coordination with the respective capitals. Each member has two options after reviewing the IMSWM. They may either

maintain or break silence. This is the so-called silence procedure. If silence is maintained, this means that the member

agrees with the content of the IMSWM. If all members agree and maintain silence, then the IMSWM goes forward to the

NAC as a MC Memorandum (MCM) of military advice. Silence is broken by the member nation sending a letter to the

IMS indicating its objection and the rationale for this objection. Sometimes a breaking nation will supply wording

acceptable to it as it tries to achieve consensus. When silence is broken, the working group meets to attempt to achieve

consensus.

After this attempt at consensus, the Chairman of the Military Committee convenes the MC. If consensus is reached,

the MCM is sent forward to the NAC as military advice. However, the Chairman may send forward his own

recommendation, called the Chairmans Memorandum (CMCM), to the Secretary General as military advice. Consensus

is the goal, and often there is a lack of understanding, requiring a member to explain the importance of their position or

perspective regarding an issue. Since the process may move quickly, or the Chairman may request approval at the

table, members assign very senior and knowledgeable officers to the position of MilRep and Deputy MilRep. This

procedure can be time consuming yet it can also work rather quickly.

THE U.S. DECISION-MAKING PROCESS

The United States MilRep has a staff of planners that coordinate and work the issues that are presented in the MC.

Planners are experts in the topics found in their portfolios. The planners coordinate with the Joint Staff in Washington,

who then coordinate the Inter-Agency Working Groups (IWGs) that formulate the U.S. position on the topic.

The formulation of the U.S. position involves coordination between many agencies such as DoD, Department of

State (DoS), and the Joint Staff. The U.S. Mission to NATO and the U.S. Military Delegation to the NATO Military

Committee also coordinate with each other. On issues within the cognizance of the European Union, coordination is

established with the U.S. Mission to the EU (USEU) located in Brussels.

When the U.S. position is formulated and the guidance issued, the planners begin to work the issue with the IMS and

the other members staffs in Brussels to arrive at consensus. If this background work is successful, the issue is resolved by

the document passing silence.

NATO RULES OF ENGAGEMENT

The NATO Rules of Engagement (ROE) provide the sole authority to NATO/NATO-led forces to use force. Three

exceptions to this general rule exist, specifically, self-defence, during peacetime and operations prior to a declaration of

counter aggression. These ROE are written as a series of prohibitions and permissions. The ROE issued as

prohibitions are orders to commanders not to take the designated action(s). Promulgated as permissions, the ROE

define the limits of the threat or use of force, or of actions that might be construed as provocative, that commanders may

take to accomplish their mission.

Chapter 25

Joint Operations  NATO

468
Chapter 25

Joint Operations  NATO

469

Figure 3: NATO-U.S. Coordination
International law, including the law of armed conflict, applies to all NATO military operations. With the different

obligations of each NATO member to relevant conventions and treaties, every effort will be made to ensurethat a

common approach is adoptedfor the purpose of military operations.

NATO members must also adhere to their respective national laws. Each nation has two separate obligations under

this provision. The nation must issue instructions restricting and/or amplifying the ROE to their troops to ensure

compliance with these national laws. Perhaps more importantly, nations must inform the NAC/DPC or the Strategic

Commander of any inconsistencies, as early as possible. While separate obligations, the unifying element is the

commitment in the Preamble to the Washington Treaty to maintaining the rule of law.

NATO defines self-defence as the use of such necessary and proportional force, including deadly force, by

NATO/NATO-led force to defend themselves against attack or an imminent attack. The definition is further refined by

defining necessary as indispensable, proportional as a response commensurate with the perception of the level of

the threat posed, imminent as manifest, instant and overwhelming, and attack as the use of force against

NATO/NATO-led forces. Note that Appendix 1 to Annex A, entitled Hostile Intent and Hostile Act, clarifies this

guidance. NATO also employs the concept of extended self-defence to defend other NATO/NATO-led forces and

personnel in the vicinity from attack or imminent attack.

Guidance regarding the use of force during peacetime and in operations prior to a declaration of counter aggression is

contained in paragraphs 9 and 10 of the document. After a declaration of counter aggression, the ROE generally limit the

otherwise lawful use of force. Annex A is entitled Compendium of Rules of Engagement. For ease of use, there is an

index to the ROE in Annex A. Additionally in Annex A there are Notes to some of the ROE. Carefully read these

Notes, as they contain significant information regarding combined operations. Specific guidance on the use of ROE in

each of the various warfighting media is contained in Annex B (air), Annex C (land), and Annex D (maritime). There is a

glossary in Annex F that is quite helpful. The Compendium may be obtained from the Center for Law and Military

Operation (CLAMO) via SIPRNET (see the CLAMO chapter for contact information).

Chapter 25

Joint Operations  NATO

470
CHAPTER 26

RESERVE COMPONENT SOLDIERS AND OPERATIONS

TYPES OF OPERATIONALLY DEPLOYED RC SOLDIERS.

The Army includes Reserve Component soldiers or units from either National Guards or the United States Army Reserve.

I. Army Reserve: The Army Reserve consists of units (almost exclusively combat support and combat service

support units known as Troop Program Units) and individual soldiers (most of whom serve in a manpower pool known as

the Individual Ready Reserve). Reserve soldiers and units normally serve under the U.S. Army Forces Command

(FORSCOM). Some Reserve units serve as part of the U.S. Army Civil Affairs and Psychological Operations Command

(USACAPOC).

II. National Guard: Each state and territory has a National Guard. Each states National Guard consists of a variety

of combat, combat support, or combat service support units, as well as a state/territorial headquarters. Under normal

circumstances, these units report to the Governor of their state or territory. They may also have an association with other

states National Guard units or active component units with whom they mobilize. In addition to their service to the state,

National Guard soldiers and units hold a dual status as Reserve soldiers in the United States Army. For that reason,

National Guard soldiers may serve either in a Federal status like other reserve soldiers, or in a State status under the

command of the Governor.

National Guard soldiers serving in their home state in such roles as disaster relief or control of civil disturbances

typically serve in their state status. By regulation and policy, National Guard soldiers serving outside the United States

must serve in their Federal status.

The distinction between state and federal status sometimes assumes critical legal importance. Unless ordered into

federal service under Title 10 U.S. Code, National Guard soldiers serve under a state chain of command, with the

Governor as commander in chief. The Uniform Code of Military Justice does not apply to soldiers on duty in a state

status. Instead, state law provides for military justice. The posse comitatus act does not apply to National Guard soldiers

in state service, which means they may then legally participate in some law enforcement activities.

When National Guard soldiers and units are ordered into Federal service, most of these distinctions disappear. As a

result, their command, control and administration closely resemble that of mobilized reserve soldiers and units.

TYPES OF RESERVE/ARNG DUTY IN THE OPERATIONAL ENVIRONMENT

I. Reserve and National Guard soldiers and units may participate in operations under several different authorities. The

list below summarizes some of the more likely ones.

A. With consent: RC members may be ordered to active duty at any time with their consent (10 USC § 12301 (d)).

B. 15 days annual duty: RC soldiers may be ordered to perform up to 15 days of active duty per year without their

consent. Soldiers in RC units normally perform this duty together as Annual Training. (10 USC § 12301 (b)).

C. Selective Mobilization: This authority exists for peacetime domestic mobilization to suppress insurrection,

enforce Federal authority, or prevent interference with state or federal law. (10 USC § 331-333).

D. Presidential Selected Reserve Call-up: Up to 200,000 RC soldiers may be involuntarily called to active duty for

up to 270 days, for purposes related to external threats to U.S. security. The statute allows for call-up of units or

individual soldiers not assigned to a unit. Sometimes, special units (referred to as derivative UICs) may be created to

Chapter 26

Reserves

471
mobilize needed unit members without mobilizing entire units. Soldiers may not be retained under this authority for more

than 270 days, including time spent on active duty prior to and after deployment. (10 USC § 12304).

E. Partial Mobilization: Upon presidential proclamation of a national emergency, up to 1 million RC soldiers may

be involuntarily called to duty for up to 24 months. (10 USC § 12302 (a)).

F. Full Mobilization: Under public law or Congressional resolution, all remaining RC soldiers may be

involuntarily ordered to active duty for the duration of the war or emergency plus six months. (10 USC § 12301 (a)).

II. Determining when a soldiers active duty terminates can be critically important. Some types of duty end by

operation of law. For example, no authority exists to extend a 270 day Presidential Selected Reserve Call-up. Therefore,

the command must either finish actions pertaining to such a soldier or initiate the soldiers continuation under other

authority. Similarly, a unit present on a 15 day annual training tour cannot be retained involuntarily, even if its continued

presence is essential to the success of a mission.

Whenever the imminent departure of an RC soldier or a unit could cause problems, military personnel specialists

need to review the records involved to accurately determine when the active duty period ends. The legal advisor should

review that determination carefully. For example, if a soldier has a tour end date on her initial orders, that date will

control over subsequent orders issued by subordinate commands.

ADVERSE ACTIONS AGAINST DEPLOYED RC SOLDIERS

Mobilized RC soldiers in Federal service have rights and obligations comparable to an AC soldier. However, the JA

advising commanders of these soldiers and units must take care to avoid some RC-specific problem areas.

A. Authority to take UCMJ action: Two points loom large when assessing the implications of UCMJ action against

an RC soldier. They are personal jurisdiction over the RC soldier at the time of the offense, and personal jurisdiction over

the RC soldier at the time of the UCMJ action.

1. Status at the time of the offense: In order to be subject to UCMJ liability, a soldier has to be in a Federal

(not state) duty status at the time of commission of the offense. Proving this can sometimes pose problems. For example,

consider urinalysis of a sample submitted shortly after the beginning of a soldiers tour of active duty. It may show

ingestion of an illegal drug, but the command will likely need to prove that the soldier was in an active duty status at the

time of drug ingestion.

2. Status at the time of the action: In order to take UCMJ action against an RC soldier, the soldier must be in a

duty status. This makes it critically important that the command know when the soldiers active duty concludes. An RC

soldier may be retained on active duty for court martial if action with a view toward court-martial is taken prior to the

normal end of the soldiers period of active duty. An Active Component General Court-martial Convening Authority

(GCMCA) can also order an RC soldier back to active duty for court-martial or Article 15 punishment under this

authority. See generally AR 27-10, chapter 21.

In addition to determining duty status, these situations also call for a careful review of the RC soldiers orders. If

a soldier is assigned to a command, there should be no problem. However, if orders specify that a soldier is attached to a

command, counsel must ensure that the terms of the attachment vest UCMJ jurisdiction in the command. If they do not,

the attachment command may contact the assignment command to request any necessary amendments.

3. The authority to retain or call back a soldier to AD for court martial does not apply to witnesses. In cases

where RC soldiers will be needed as witnesses after their release from active duty, the command may contact the reserve

soldiers chain of command to secure the witness presence under other authority.

B. Administrative Actions: Administrative actions against a deployed RC soldier pose fewer jurisdictional issues

than UCMJ actions, but must still be approached carefully.

Chapter 26

Reserves

472
1. Unlike UCMJ jurisdictional requirements, a soldier need not be in a duty status when committing

misconduct subject to administrative action. However, the command must have authority to take the action. Here again,

the RC soldiers orders require careful examination. Assigned RC soldiers generally fall under the commands

administrative authority like any other soldier. However, attachment orders may reserve authority for administrative

actions to the soldiers reserve chain of command.

2. Generally, AC regulations will apply to actions against RC soldiers assigned to an AC command. For

example, administrative separation action against a mobilized soldier would proceed under AR 635-200 (the AC

regulation) rather than AR 135-178 (the RC regulation). Sometimes the duration of a soldiers remaining active duty

dictates the choices in this area. Considering the separation action above, what if the soldier has only a week of active

duty left? The AC command may lack sufficient time to complete a separation (and, since there is no court martial

contemplated, probably has no authority to extend the soldier on active duty). The better alternative may be to ensure the

documentation is forwarded to the soldiers chain of command back home for appropriate action. With other actions, the

AC chain of command processes the action to completion even after the RC soldier departs (For example, see AR 600-37,

paragraph 3.4 (d), which allows completion of the letter of reprimand process after departure of a soldier from the

command). Bottom line rule? Check the regulation involved carefully and determine its applicability when an RC soldier

is involved.

Chapter 26

Reserves

473
Ch

apter 26

Reserves

474
CHAPTER 27

THE MILITARY DECISION MAKING PROCESS AND OPERATION PLANS

OPERATIONS PLANS AND ORDERS IN THE ARMY ARENA

The military decision-making process (MDMP) is a single, established, and proven analytical process. (Figure 1).

The MDMP is an adaptation of the Armys analytical approach to problem solving. The MDMP is a tool that assists the

commander and staff in developing estimates and a plan. The ultimate goal of the MDMP is to produce a comprehensive,

clear, and concise operations order. The judge advocate must be involved in every aspect of the MDMP process. Judge

advocates should become involved in the Plan Development process and not merely in the Plan Review stage.

Participation in the Plan Development process enables judge advocates to prevent the inclusion of legally questionable

actions into the OPLAN. The judge advocate can accomplish this by his/her participation in the Operational Planning

Group or OPG, where the Legal Advisor provides direct input into the decision-making process, along with other

coordinating and special staff officers and subject matter experts.

Figure 1. The Military Decision Making Process Model.

The Operational Planning Group will vary in size and composition depending on the complexity of the operation and

the unit size. The key players in the brigade TF OPG will be the brigade S-3 (operations officer), the brigade S-2

(intelligence), the brigade fire support officer (FSO), and the brigade logistics officer (S-4). These officers are primarily

responsible for taking the brigade commanders intent and producing a workable, thorough operation order. There are

Chapter 27

MDMP and OPLANS

475
other important members of the planning cell, usually a representative from each of the battlefield operating systems

(BOS) and perhaps Air Force, ANGLICO and allied and SOF liaisons, and of course the brigade trial counsel. These

supporting members of the OPG all take an active part in the planning process and have the responsibility of assisting the

key players in fulfilling the commanders intent. Significantly, all these officers have other crucial duties in the brigade

besides working in the planning cell. The OPG comes together upon the receipt of the warning order from the higher

headquarters, produces the order and then goes into the execution phase.

The OPG at the division level or higher will usually be of such importance as to consist of officers and NCOs who

have the OPG as their primary duty. Often the OPG will be called a Battle Management Cell (BMC) or the Future Plans

Group (FPG). The operational law attorney at the division level will work with the individuals who make up the BMC on

a daily basis. The relationship between the judge advocate and the officers who make up this planning cell is as crucial as

the judge advocates knowledge on relevant legal issues.

Operational Law Concerns in Plans and Orders. By participating in the MDMP process, judge advocates can review

plans and mission orders to determine if: (a) law of war issues have been addressed, (b) legally and practically sufficient

rules of engagement have been defined, and (c) other necessary legal issues have been adequately discussed. Law of War

issues weave between the targeting annex, the movement plans, and the Fire Support Plan. The best advice for judge

advocates is to remain fully engaged in the process as the staff discusses and develops the plan. The judge advocate must

know the law, and be alert to operational issues that raise the potential for violating the Law of War. Every OPLAN will

address many other OPLAW issues, such as criminal jurisdiction and claims, refugee flows, riot control agents,

command and control, fiscal law, etc. The Legal Annex is the focal point for the judge advocate to capture guidance on

policy matters that are contained in other annexes throughout the plan. The judge advocate will be responsible for

producing a Legal Annex that is consistent with the remainder of the plan.

Receipt of Mission: The decision-making process begins with the receipt or anticipation of a new mission. As soon as a

new mission is received, the units operations section issues a warning order to the staff alerting them of the pending

planning process. Unit SOPs identify who is to attend and where they should assemble. The staff (which includes the

judge advocate) prepares for the mission by gathering the tools needed to do mission analysis. These include 

Higher headquarters order or plan

Map of the area of operations

FM 27-10, DA Pam 27-1, and DA Pam 27-1-1.

Appropriate FMs

Any existing staff estimates

Both own and higher headquarters SOPs.

The judge advocate must also prepare for the upcoming Mission Analysis by having the proper resources. These include:

A copy of the current ROE with any changes and any requests for changes

A copy of relevant SOFA or relevant local law in the anticipated AO

A copy of the legal Annex

The critical decision made during the receipt of mission is the allocation of available time. The commander must provide

guidance to subordinate units as early as possible to allow subordinates the maximum time for their own planning and

preparation for operations. As a general rule, the commander allocates a minimum of two-thirds of available time for

subordinate units to conduct their planning and preparation. This leaves one-third of the time for the commander and his

staff to do their planning.

Chapter 27

MDMP and OPLANS

476
Mission Analysis: Mission analysis is crucial to the MDMP. It allows the commander to begin his battlefield

visualization. The result of mission analysis is defining the tactical problem and beginning the process of determining

feasible solutions. It consists of 17 steps, not necessarily sequential, and results in the staff formally briefing the

commander. The judge advocate has an important role in each of the steps:

Step 1. Analyze the higher headquarters order.

Step 2. Conduct initial intelligence preparation of the battlefield (IPB).

Step 3. Determine the specified, implied, and essential tasks.

Step 4. Review available assets.

Step 5. Determine constraints.

Step 6. Identify critical facts and assumptions.

Step 7. Conduct risk assessment.

Step 8. Determine initial commanders critical information requirements (CCIR).

Step 9. Determine the initial reconnaissance annex.

Step 10. Plan use of available time.

Step 11. Write the restated mission.

Step 12. Conduct a mission analysis briefing.

Step 13. Approve the restated mission.

Step 14. Develop the initial commanders intent.

Step 15. Issue the commanders guidance.

Step 16. Issue a warning order.

Step 17. Review facts and assumptions.

Significant legal issues will arise during each of the above steps. The judge advocate must ask the difficult questions of

the plans officer leading the Mission Analysis to ensure that all relevant legal concerns are worked into the plan. The

Joint Operations Planning and Execution System (JOPES) checklist at the end of this chapter provides a useful

checklist of legal issues which commonly arise. Above all else, by actively participating in the mission analysis phase

of orders development, the judge advocate will become intimately familiar with the operations parameters.

Course of Action Development: After receiving guidance, the staff develops COAs for analysis and comparison. The

commander must involve the entire staff in their development. His guidance and intent focus the staffs creativity to

produce a comprehensive, flexible plan within the time constraints. Typically the staff will develop at least two, and as

many as five, different courses of action for the commander to consider.

The judge advocate must know the legal advantages and disadvantages of each of the COAs and be ready to brief them if

required. For example, COA 1 may involve bypassing a major urban area and subsequently using indirect fire on enemy

forces defending the city. COA 2 might involve the destruction of an enemy dam in order to flood a likely enemy

counterattack axis of advance. COA 3 might use FASCAM mines to achieve the same end. Each of the COAs present

Chapter 27

MDMP and OPLANS

477
unique legal issues which the judge advocate must be prepared to brief to the commander in a simple

advantage/disadvantage style.

Most staffs use a synchronization matrix during the COA development. At the top of the matrix is an H hour sequence

(H+2, H+6 etc.) which provides a common time reference for all phases of the operation (Figure 2). The first column on

the left usually contains the BOSs (maneuver, ADA, fire support, IEW, engineer Combat service support, and command

and control), projected enemy actions and decision points to be made at certain H hours. The synchronization matrix

provides a highly visible, clear method for ensuring that planners address all operating systems when they are developing

courses of action and recording the results of war gaming. The matrix clearly shows the relationships between activities,

units, support functions, and key events. The matrix supports the staff in adjusting activities based on the commanders

guidance and intent and the enemys most likely courses of action.

COA Analysis/COA Comparison/COA Approval: The COA analysis identifies which COA accomplishes the mission

with minimum casualties while best positioning the force to retain the initiative for future operations. The COA analysis

is accomplished using war gaming. The war game is a disciplined process, with rules and steps, which attempts to

visualize the flow of battle in each of the COAs. During the war game, the staff takes a COA and begins to develop a

detailed plan, while determining the strengths and weaknesses of each COA. War gaming tests a COA or improves a

developed COA.

The judge advocate should be an active participant in the war gaming process. Such participation will not only

increase the judge advocates knowledge of the military art and operational planning, but other legal issues will present

themselves as the staff wargames each COA. For example, during the war game the staff member playing the part of the

opposing force reacts to a U.S. air assault deep behind his lines by using poison gas on the landing zone. Suddenly, a

heretofore unplanned legal issue is presented to the staff and the judge advocate is given the opportunity to resolve it

before a COA is decided upon.

The COA comparison starts with each BOS representative staff officer analyzing and evaluating the advantages and

disadvantages of each COA from his BOSs perspective. Each staff member presents his findings for the others

consideration. Each representative of the BOS (maneuver, fires, intelligence, ADA, mobility/countermobility, combat

service support, command and control) will rate each of the COAs according to how well his system can support it. From

these numerical ratings, a decision matrix will be assembled where each COA is compared for supportability from each of

the BOSs. After completing the matrix and the analysis, the staff identifies its preferred COA and makes a

recommendation to the commander.

Although the judge advocate is not included as one of the BOSs representatives, his input before this phase is

crucial. One of the original COAs may have been insupportable from a legal standpoint. For example, COA 1 may rely

on the use of RCAs (without NCA approval) for the suppression of enemy air defense (SEAD) on the drop zone before

the planned airborne assault. In such a case, the judge advocate must identify such critical problems during the COA

developmentbefore the staff spends precious man hours and resources planning it.

After the decision briefing, the commander decides on the COA he or she believes to be the most advantageous. If

he rejects all developed COAs, the staff will have to start the process all over again. If the commander modifies a

proposed COA or gives the staff an entirely different one, the staff must war-game the revised or new one to derive the

products that result from the war-game process. Based on the commanders decision, the staff immediately issues a

warning order with essential information so that subordinate units can refine their plans.

Chapter 27

MDMP and OPLANS

478
Time -18 hours -14 hours -12 hours

Enemy Action Enemy monitors movement

Continue deep preparation

Decision Points Initiate movement AA ROSE

Deep

Security Recon secures routes Cav prepares to screen north flank

Close 1 Bde moves on routes 1 & 2

M

Reserve 3 Bde moves on routes 1 & 2

aneu

ver

Rear

Air Defense Weapons HOLD Weapons TIGHT

Fire Support

EW Confirm second belt and RAG position Confirm reserve position

Engineer Route maintenance

Man Replacements held at division

Arm

Fix Cannibalization authorized at DS level Establish Div main CP

Fuel

Move Initiate movement from AA Rose

C

S

S

Sustain

CP TAC CP with lead Bde

Figure 2. Example of a synchronization matrix.

Orders Production: Based on the commanders decision and final guidance, the staff refines the COA and completes

the plan and prepares to issue the order. The staff prepares the order or plan to implement the selected COA by turning it

into a clear, concise concept of operations, a scheme of maneuver, and required fire support.

The G-3 plans officers (or the S-3 at the BDE level) may ask the judge advocate to read the finished order to see if it

meets general standards of clarity, internal consistency, and completeness. The judge advocate should seek every

opportunity to serve in such a capacity since it demonstrates that he is considered one of the team. Increasingly, judge

advocates serve as the honest broker in the review of plans and orders. Good advice to judge advocates serving in such

a role is to: (1) look at the ENTIRE PLANboth of your unit and of the higher unit; (2) READ AND STUDY the

Mission Statement and Commanders Intent (is the statement and intent clear - does it sufficiently define the parameters

Chapter 27

MDMP and OPLANS

479
of the operation, while affording the requisite flexibility to the unit); (3) carefully review the parts of the plan which

discuss Civil Affairs, Military Police, Intelligence (particularly low level sources), Acquisition, and Funding. Look to the

commands authority to undertake proposed actions. Consider:

1. Express authority (e.g., in the Mission Statement).

2. Implied authority (e.g., authority to detain civilians implied from the mission to restore order; authority to

undertake minor, short term repairs to a civilian power plant, thereby enabling lights to operate, implied from the mission

to enhance security and restore civil order.)

3. Inherent authority (e.g., authorityalwaysto protect the force.)

4. Watch out for mission creep: help the commander stay in his/her lane. When dealing with DoS (through,

most often, the Country Team), do not presume DoD/DoS synchronization. Protect the commander, and use technical

channel communications and resources. Remember that color of money issues are importantparticularly in postcombat stability operations and MOOTW. See the chapters on Fiscal Law and Security Assistance of this Handbook.

When called upon to proofread an order, try to use the following checklist:

Does the order use doctrinally established terms?

Is there sufficient detail to permit subordinate commanders to accomplish the mission without further

instructions?

Is there sufficient detail for subordinate commanders to know what other units are doing?

Does the order focus on essential tasks?

Does the order limit the initiative of subordinate commander, i.e., does it prescribe details of execution that lie

within their province?

Does the order avoid qualified directives such as try to hold or as far as possible?

After finishing the order, does the reader have a grasp of the big picture of the operation?

OPERATIONS PLANS AND ORDERS IN THE JOINT ARENA

The JTF OPLAN in Context

Almost all future contingency operations will be based on the joint task force. The joint task force (JTF) will consist

of combat and support units from all the services. The JTF will have one commander who will be responsible for

coordinating the complex interplay between the services to produce the maximum combat power. The JTF OPLAN is the

mechanism by which this objective is planned  it does not exist in a vacuum. As a supporting plan to the OPLAN of a

particular Unified Command, it must reflect the guidance contained in that plan and be structured in such a way as to

assist in the overall accomplishment of the Unified Command mission.

Unified Command OPLANs are the mechanisms through which CINCs will accomplish the national security

objectives and derived military objectives and tasks assigned them in Vol. I of the Joint Strategic Capabilities Plan

(JSCP). This is one of the principal Joint Strategic Planning System (JSPS) documents prepared by the CJCS for the

purpose of translating national security policy (formulated by the National Security Counsel (NSC)) into strategic

guidance, direction, and objectives for operational planning by Unified and Specified commands.

Chapter 27

MDMP and OPLANS

480
The JSCP, Vol. I and II (Vol. II identifies the major combat forces assigned a CINC, for planning purposes, in the

development of his OPLAN) triggers the Joint Operations Planning and Execution System (JOPES).

380 JOPES applies to

those OPLANS prepared by CINCs in response to the missions assigned them by the CJCS in the JSCP, Vol. I. CJCS

Manual 3122.03 (1 June 1996) provides the Planning Formats and Guidance needed to comply with the JOPES process.

Above all else, JOPES provides a standardized process that is uniform, predictable, and thorough. The judge

advocate should be familiar with the JOPES format for constructing OPLANS because the relevant information

will be located in standardized locations through the plan. For example, the legal annex will always be Appendix 4

to Annex E of each plan to the judge advocate picks up. The Rules of Engagement are always Appendix 8, Annex

C. This chapter includes every appendix and annex required by JOPES in their correct order and substance.

JOPES provides the guidance and procedures for use in the development, coordination, dissemination, review, and

approval of Unified Command joint operations plans. It also prescribes standard formats and the minimum content for

OPLANS. Planning for military operations is conducted deliberately, or in the crisis action mode.

The Deliberate Planning Process, most often used in developing Unified Command CONPLANs or OPLANs, as well

as supporting plans, involves 5 distinct phases: (1) Initiation, (2) Concept Development, (3) Plan Development, (4) Plan

Review, and (5) Supporting Plans. The Crisis Action Planning Process begins in response to a developing situation that

may require the deployment of military forces. Crisis Action planning produces an OPORD for a particular mission, and

includes similar phases: (1) Situation Development, (2) Crisis Assessment, (3) Course of Action (COA) Development, (4)

COA Selection, (5) Execution Planning, and (6) Execution. Military planners will often use a CONPLAN or OPLAN as

the starting point for a Crisis Action Plan.381

Reviewing Plans and Mission Orders

Types of Plans and Mission Orders. Units plan for specific contingencies and missions. In an actual deployment,

operations or concept plans (OPLANS/CONPLANS) become operations orders (OPORD) which direct how to

accomplish a particular mission. Divisions and higher-level units prepare OPLANs and CONPLANs days, months, or

years prior to deployment. The detailed plans, in conjunction with the forces assigned or apportioned to the CINC in the

JSCP, enable the staff to develop the Time Phased Force Deployment Data (TPFDD). The TPFDD is a sequenced plan

that details the flow of forces into theater using available lift or transport assets. The TPFDD determines the priority and

sequence of units the judge advocate must ensure are trained in the ROE, and will impact on what legal assets are

available in theater in when they are available.

Responsibility for Plans and Order Review. Operational law attorneys must periodically review all existing OPLANs

and CONPLANs. Many divisions utilize brigade trial counsel to review plans and orders in their units. Regardless of

who conducts the review, the responsibility for the review rests with the SJA. The plans review process must be

continuous, with the SJAs representative in constant coordination with the G-3 Plans (or J-3 if the judge advocate is

working with a Joint Task Force) element. The SJAs representative must be in the decision-making cycle not only of his

unit, but of the next higher unit as well. Some units have assigned an operational lawyer to work in the G-3 Plans shop

for several days each week. The key point is that the judge advocate must be a member of the plans team, a known

commodity, not an interloper in the operations planning process.

At brigade level and below, written and oral mission orders are often prepared and executed within hours. All plans

and orders identify the SITUATION, the MISSION, how the mission will be executed (EXECUTION), how the

mission will be supported (SERVICE SUPPORT), and how the mission will be controlled (COMMAND AND

SIGNAL). Additional details appear in annexes, appendices, and tabs following the basic plan or order. Plan for

changeorders will probably be modified through Fragmentary Orders (FRAGOs).

The OPLAN Review Process. As noted in the Preface of the OPLAN Checklist, the Checklist uses the JOPES format.

Though structured for the review of OPLANS at higher echelons, the Checklist offers an extensive list of issues to look

for in plans and mission orders at all levels of command. Judge advocates with more experience than time may prefer to

380 See JOINT PUB. 5-03.2, JOINT OPERATIONS PLANNING AND EXECUTION SYSTEM, VOL. II, PLANNING AND EXECUTION

FORMATS AND GUIDANCE (10 Mar 1992) .

381 See JOINT PUB. 5-0, DOCTRINE FOR PLANNING JOINT OPERATIONS (13 April 1995).

Chapter 27

MDMP and OPLANS

481
use a shorthand approach to OPLAN/OPORD Review. The FAST-J method, which precedes the OPLAN Checklist, is a

good generalized mechanism for OPLAN/OPORD review.

Developing the Legal Appendix to an OPLAN. A detailed and easily understood Legal Appendix to an

OPLAN/OPORD, complete with relevant references, is essential. Specific Legal Annexes or Appendices must be tailored

to each operation, and developed on the basis of individual mission statements and force composition. Pay particular

attention to tailoring a General Order Number 1 to each operation. What workedand made sensein SWA may not

be prudent for a UN peacekeeping operation, for example. Appendix A to this chapter includes relevant JOPES formats,

as well as an example of Appendix 4 to Annex E [Legal] for the U.S. Forces Haiti, the U.S. component of the UN

Mission in Haiti (UNMIH), FRAGO 16 of OPLAN 2380 (Uphold Democracy).

Personal Preparation for Deployment. Deploying judge advocates must ensure that their personal affairs are up-to-date

and that they are prepared for deployment. Personal equipment, TA-50, hygiene materials, and clothing should be

assembled upon assignment to the unit, and continually maintained in a state of readiness for deployment. Procedures for

drawing/securing weapons and protective masks should be predetermined. Inquire whether additional equipment or

special clothing will be required, what additional documents (such as TOC passes and meal cards) may be needed, and

how they will be obtained. Develop a plan to gain interim top secret clearance for all brigade legal advisors and other

judge advocates with a need to see top secret materials. Annual weapons qualification with assigned weapon, and

military skills proficiency and physical fitness, must be taken seriously! SJAs and other leaders must train subordinate

judge advocates on preparation for, and execution of, deployment.

Preparation of the Legal Deployment Package. A deployment package includes tactical and office equipment, office

supplies, and reference materials. This equipment should be packed and ready for deployment at all times. Store

deployment materials in footlockers or other containers and keep them up to date to prevent delays during the deployment

sequence. Check the contents and condition of the containers according to a schedule. Determine how the deployment

package can be palletized. Have load plans for vehicles. Know how to prepare vehicles and equipment for air movement

or shipment. In most units, the SJA deployment package is the responsibility of the Operational Law Attorney, but the

Legal Administrator and the Chief Legal NCO must participate in the preparation and care of the deployment package.

Specifically, NCOs should take charge of palletizing and preparing forand executingmovement. Train on executing

the office deployment plan. Take the deployment package to the field. Tailor the materials for your units AOR and

likely missions. Consider packing a manual typewriter, extension cords, transformers, and toilet paper in addition to

traditional legal and office materials. A mission-specific review of essential materials must be done as early as possible

once deployment is ordered. SOFAs, if applicable, Country Law and Area Studies, and publications of the unified

command having responsibility for the country in which operations will occur should made a part of the deployment

package.

Deployment SOPs. Deployable SJA offices must maintain an up-to-date deployment SOP, checklists and Smart, or

Continuity, Books. Corps and Division SOPs will necessarily vary as a result of differences in missions and force

composition. To the extent possible, SOPs for SJA offices operating in the same theater should be coordinated for the

purpose of ensuring uniformity and consistency of approach toward the provision of legal services to combat

commanders. Deployment SOPs must be exercised and refined periodically.

THE FAST - J METHOD FOR OPLAN/OPORD REVIEW

1. FORCE. 2. AUTHORITY

When and what do we shoot? To conduct certain missions

Mission? - Law enforcement

Commanders Intent? - Training (FMS, FAA)

ROE? - HCA

To capture/detain locals

Chapter 27

MDMP and OPLANS

482
3. STATUS 4. THINGS

Ours Buying (Contracting)

- Law of the Flag (combat or vacuum [Somalia, e.g.]) Breaking (Claims)

- SOFA Blowing Up (Targeting)

- Other (Admin. & Tech. P. & I. through Diplomatic Note, e.g.)

Theirs

- Status

- Treatment

- Disposition

5. JUSTICE (Job One)

Jurisdiction (Joint or service specific)

Convening Authorities

Control Measures (GO # 1)

TDS, MJ Support

Chapter 27

MDMP and OPLANS

483
APPENDIX

FORMATS FOR LEGAL APPENDICES

NOTE: THERE ARE ADDITIONAL SAMPLE LEGAL ANNEXES CONTAINED IN THE JAGCNET DATABASE.

[See JOPES Volume II, JEL Library]

(Standardized JOPES Format, Rules of Engagement Appendix)

CLASSIFICATION

HEADQUARTERS,

U.S. EUROPEAN COMMAND APO AE 09128 28

February 1992

APPENDIX 8 TO ANNEX C TO USCINCEUR OPLAN 4999-92 (U) RULES OF ENGAGEMENT (U)

( ) REFERENCES: List DoD Directives, rules of engagement (ROE) issued by the Chairman, Joint Chiefs of Staff, and

existing and proposed ROE of the supported commander to be applied during the conduct of operations in support of this

OPLAN.

1. ( ) Situation

a. ( ) General. Describe the general situation anticipated at the time implementation of the plan is directed. Provide all

information needed to give subordinate units accurate insight concerning the contemplated ROE.

b. ( ) Enemy. Refer to Annex B, Intelligence. Describe enemy capabilities, tactics, techniques, and probable COAs

that may affect existing or proposed ROE in relation to accomplishment of the U.S. mission.

c. ( ) Friendly. State in separate subparagraphs the friendly forces that will require individual ROE to accomplish

their mission; e.g., air, land, sea, SO, hot pursuit. Where appropriate, state the specific ROE to be applied.

d. ( ) Assumptions. List all assumptions not included in the Basic Plan on which ROE are based.

2. ( ) Mission. State the mission in such a way that ROE will include provisions for conducting military operations in

accordance with the Laws of War.

3. ( ) Execution

a.( ) Concept of Operation

(1) ( ) General. Summarize the intended COA and state the general application of ROE in support thereof.

Indicate the length of time (hours, days, or event) the ROE will remain in effect.

(2) ( ) U.S. National Policies. Refer to appropriate official U.S. policy statements and documents published by

the command pertaining to ROE and the Laws of War. Include reference to ROE for allied forces when their participation

can be expected. When desired, specific guidance may be included in a tab. Refer to a separate list of NO STRIKE targets

in Appendix 4 to Annex B, which may include facilities afforded special protection under international law.

b. ( ) Tasks. Provide guidance for development and approval of ROE prepared by subordinate units.

c. ( ) Coordinating Instructions. Include, at a minimum:

(1) ( ) Coordination of ROE with adjacent commands, friendly forces, appropriate second-country forces, neutral

countries, appropriate civilian agencies, and Department of State elements.

(2) ( ) Dissemination of ROE.

(3) ( ) Provision of ROE to augmentation forces of other commanders.

4. ( ) Administration. Provide requirements for special reports.

5. ( ) Command and Control. Refer to the appropriate section of Annex K. Provide pertinent extracts of information

required to support the Basic Plan, including:

a. ( ) Identification, friend or foe, or neutral (IFFN) ROE policy.

b. ( ) Relation of ROE to use of code words.

c. ( ) Specific geographic boundaries or control measures where ROE are applicable.

d. ( ) Special systems and procedures applicable to ROE.

Appendix 8 to Annex C

Chapter 27, Appendix

MDMP and OPLANS

484
CLASSIFICATION

(Standardized JOPES Format, Enemy Prisoners of War, Civilian Internees, and Other Detained Persons Appendix)

CLASSIFICATION

HEADQUARTERS,

U.S. EUROPEAN COMMAND APO AE 09128 28

February 1992

APPENDIX 1 TO ANNEX E TO USCINCEUR OPLAN 4999-92 (U) ENEMY PRISONERS OF WAR, CIVILIAN

INTERNEES, AND OTHER DETAINED PERSONS (U)

( ) REFERENCES: Cite the documents necessary for a complete understanding of this appendix.

1. ( ) General

a. ( ) Purpose. State the purpose of the appendix.

b. ( ) Scope. Indicate the specific activities (e.g., collection, processing, evacuation) applicable to the OPLAN and the

extent to which they pertain to EPWs, CIs, and DETs.

c. ( ) Policy. Delineate the general policy for accomplishing EPW, CI, and DET activities by the Service components

and other supporting commands.

2. ( ) Situation. Identify any significant factors that may influence EPW, CI, and DET activities in support of the

OPLAN. The following subparagraphs may be used to the extent necessary.

a. ( ) Enemy. Refer to Annex B, Intelligence. Assess the impact of enemy capabilities and probable COAs on EPW,

CI, and DET activities and summarize the enemy military, paramilitary, and civilian forces and resources expected to be

encountered.

b. ( ) Friendly. Include any non-U.S. military forces and U.S. civilian agencies that will augment assigned forces for

EPW, CI, and DET activities.

3. ( ) Execution

a. ( ) Concept of Operations. State the general concept of EPW, CI, and DET activities in support of the OPLAN.

b. ( ) Assignments of Tasks. In separate numbered subparagraphs for each applicable component, identify specific

responsibilities for EPW, CI, and DET activities. Indicate what component is responsible for as many of the following as

applicable:

(1) ( ) Developing, in coordination with intelligence planners, gross time-phased estimates of the number of EPWs, CIs,

and Des. These estimates should be provided to medical planners.

(2) ( ) Developing overall in-theater policy and coordinating matters pertaining to EPW, CI, and DET activities.

(3) ( ) Establishing and operating collection points and processing centers.

(4) ( ) Establishing and operating EPW and CI camps.

(5) ( ) Activating and operating EPW information centers and branches.

c. ( ) Coordinating Instructions. Include general instructions applicable to two or more components, such as:

(1) ( ) Agreements with the host country, allied forces, and U.S. Government and non-Government agencies.

(2) ( ) Relationships with the ICRC or other humanitarian organizations.

(3) ( ) Arrangements for transfer of EPWs, CIs, and DETs between Services or acceptance of EPWs, CIs, and

DETs from allied forces.

4. ( ) Special Guidance. Provide guidance not discussed elsewhere concerning the collection, safeguarding, processing,

evacuation, treatment, and discipline of EPWs and all personnel detained or captured. Include as many of the following as

applicable:

a. ( ) Handling, processing, and evacuating EPWs at the capture point. Discuss assignment of POW escorts and their

responsibilities (escorts should bring personal effects of POWs to include uniforms, undergarments, civilian clothes).

Discuss the requirements and assignment of a single point of contact to coordinate all return and administrative

requirements of repatriated POWs.

b. ( ) Accounting for EPWs, CIs, and DETs.

c. ( ) Interrogating and exploiting EPWs. (Cross-reference to Annex B, Intelligence, and Appendix 5. Human

Resource Intelligence.)

d. ( ) Granting of legal status.

Chapter 27, Appendix

MDMP and OPLANS

485
e. ( ) EPW, CI, and DET advisory assistance programs.

f. ( ) Transferring of EPWs, CIs, and DETs to another detaining power.

g. ( ) Investigating, reporting, and adjudicating alleged violations of the laws of war as applicable to detained persons.

5. ( ) Administration and Logistics. Provide a concept for furnishing logistic and administrative support for EPW, CI,

and DET activities. As appropriate, include guidance on the following:

a. ( ) Accounting for personal property and deceased EPWs, CIs, and DETs. (Cross-reference to Appendix 2,

Mortuary Services, to Annex D, Logistics.)

b. ( ) EPW, CI, and DET documentation and records.

c. ( ) Medical care and treatment. (Cross-reference to Annex Q).

d. ( ) EPW canteens and welfare funds.

e. ( ) EPW and CI labor programs.

6. ( ) Command and Control. Discuss C3 systems support and procedures necessary to conduct EPW, CI, and DET

activities. Refer to appropriate sections of Annex K.

7. ( ) Reports. Indicate reports required by appropriate reference(s).

Appendix 1 to Annex E

CLASSIFICATION

(Standardized JOPES Format, Legal Appendix)

CLASSIFICATION

HEADQUARTERS,

U.S. EUROPEAN COMMAND APO AE 09128 28

February 1992

APPENDIX 4 TO ANNEX E TO USCINCEUR OPLAN 4999-92 (U) LEGAL (U)

( ) REFERENCES: Cite the documents necessary for a complete understanding of this appendix.

1. ( ) General Guidance. See appropriate references, including inter-Service support agreements.

2. ( ) Specific Guidance. Coordinate with supporting commanders and Service component commanders on the items

listed below. For each subheading, state policies, assign responsibilities, and cite applicable references and inter-Service

support agreements:

a. ( ) Claims.

b. ( ) International legal considerations.

c. ( ) Legal assistance.

d. ( ) Military justice.

e. ( ) Reporting violations of the law of war.

f. ( ) Captured weapons, war trophies, documents, and equipment.

g. ( ) Host-nation support.

h. ( ) Legal review of rules of engagement.

i. ( ) Law enforcement and regulatory functions.

j. ( ) Component and supporting commanders and staff responsibilities.

k. ( ) Acquisitions during combat or military operations.

l. ( ) International agreements and congressional enactments.

m. ( ) Nuclear, biological, and chemical weapons.

n. ( ) Targeting.

o. ( ) Enemy prisoners of war and detainees.

p. ( ) Interaction with the International Committee of the Red Cross (ICRC).

Appendix 4 to Annex E

CLASSIFICATION

Chapter 27, Appendix

MDMP and OPLANS

486
SAMPLE LEGAL APPENDIX

APPENDIX 4 TO ANNEX E TO USFORHAITI OPORD(U)

LEGAL (U)

(U) REFERENCES:

a. UN Charter (U)

b. UN Security Council Resolutions 867 (1993), 905, 917, 933, 940, 949, 964 (1994), 975 (1995)

c. Multinational Force (MNF) Status of Forces Agreement, dated 8 Dec 1994 (U)

d. UN Status of Mission Agreement, dated XXXXXXXX (U)

e. Agreement for Support of UNMIH, dated 19 Sep 1994 (U)

f. Governors Island Agreement of 3 July 1993 (U)

g. UN Participation Act (UNPA), 22 U.S.C. § 287 (U)

h. Foreign Assistance Act (FAA), 22 U.S.C.. § 2151-2429

i. Joint Pub 0-2, Unified Action Armed Forces (UNAAF) (U)

j. U.S.-Haiti, Bilateral Mutual Defense Assistance Agreement, dated 28 Jan 1955 (U)

k. International Agreement Negotiation: DoD Directive 5530.3, and CINCUSACOM 5711.1A (U)

l. Service regulations on Legal Assistance: AFI 51-504, AR 27-3, JAGMAN (USN/USMC) (U)

m. Uniform Code of Military Justice and Manual for Courts-Martial, United States, 1984 (U)

n. Service regulations on Military Justice: AFI 51-201, AFI 51-202, AR 27-10, JAGMAN (U)

o. CINCUSACOMINST 5710.3A, Political Asylum (U)

p. Claims: AR 27-20, DA Pam 27-162, JAGMAN, JAGINST 5890.1 AFM 112-1B, DoD Directive 5515.8 (U)

q. International Law: DA Pam 27-1 (Treaties Governing Land Warfare), DA FM 27-10 (Law of Land Warfare),

NWP 9 (Rev. A)/FMFM 1-10 (Commanders Handbook on the Law of Naval Operations), AFP 110-20

(Selected International Agreements), AFP 110-31 (International Law-The Conduct of Armed Conflict and Air

Operations), AFP 110-34 (International Law-Commanders Guide to the Law of Armed Conflict) (U)

r. Control and Registration of War Trophy Firearms: AR 608-4, OPNAVINST 3460.7A, AFR 125-13, MCO

5800.6A (U)

1. a. (U) General Guidance. JTF USFORHAITI will conduct operations in Haiti as the U.S. military component of

the United Nations Mission in Haiti (UNMIH), OPCON to the Commander, UNMIH. Reference (a) establishes the

general legal foundation for peacekeeping operations (Chapter VI) and peace enforcement operations (Chapter VII).

References (b), (d), (e), and (f) are the specific authorizations for the UNMIH. References (g) and (h) contain statutory

authority for U.S. manpower and logistics contributions to United Nations operations. Reference (i) establishes the

general policy for addressing legal issues of U.S. joint service operations.

b. (U) The JTF SJA will:

(1) Provide legal advice to JTF and Staff.

(2) Serve as a single point of contact for operational legal matters affecting forces under the operational

command of JTF within Haiti.

(3) Monitor foreign criminal jurisdiction matters involving U.S. personnel within Haiti.

(4) Ensure all plans, rules of engagement (ROE), policies, and directives, are consistent with the DoD Law of

War Program and domestic and international law.

(5) Monitor foreign claims activities within country.

2. (U) Specific Guidance.

a. (U) Claims.

(1) (U) U.S. Claims. The Department of the Army (DA) has been assigned Executive Agency, UP ref (p), for

claims arising from U.S. operations in Haiti. An Army Judge Advocate will be appointed as a Foreign Claims

Commission to adjudicate U.S. claims, where possible, and forward them to DA. Any residual claims resulting from U.S.

operations should be addressed through the SJA, USFORHAITI, to the Chief, Foreign Claims Branch, U.S. Army Claims

Service, Ft. Meade, Maryland, DSN 923-7009, Ext. 255.

(2) (U) UN Claims. Per ref (e), the UN has held the United States and all U.S. members of the UNMIH

harmless from all claims arising from acts or omissions committed by U.S. personnel serving with the UNMIH.

Commanding officers of U.S. personnel assigned to the UNMIH will be sensitive to any damage caused by members of

their command. Claims arising from UN operations will be submitted per UN direction, in accordance with the UN

Chapter 27, Appendix

MDMP and OPLANS

487
claims procedures, ref (d), and UN directives.

(3) (U) Claims investigations. Any injury of a civilian or damage of personal property will be reported to the

SJA, JTF USFORHAITI, immediately. JTF USFORHAITI will coordinate with the commanding officer of the service

member involved in any alleged claim to ensure that an officer from that service is appointed to conduct a thorough

investigation into the matter. All claims investigations will be promptly completed and forwarded to the SJA for review.

Information copies will be forwarded to the SJA, U.S. Atlantic Command (USACOM). Unless otherwise directed, the

SJA, JTF USFORHAITI, will review the investigation, and after approval by JTF USFORHAITI, forward the report

through the appropriate chain of command for adjudication and payment.

b. (U) International Legal Considerations.

(1) (U) Status of Forces. UP of para. 52, of ref (c), any residual MNF personnel in country after transition to

UNMIH will be covered by the MNF SOFA, ref (c). Reference (d) details the status of UNMIH, its component

personnel, and assets. All questions regarding status and privileges should be referred to the Legal Advisor, Commander,

UNMIH. Any U.S. bilateral security assistance elements will be given administrative and technical status of embassy

personnel, as provided for in Article V of ref (j), upon negotiation of an implementing agreement.

(2) (U) Peacekeeping Operations. The UNMIH is a peacekeeping operation as described in Chapter VI,

reference (a). It is organized under the command of the United Nations, exercised on behalf of the Security Council and

the Secretary-General by a Special Representative. Both a military and a civilian component report to the Special

Representative. Logistics support may be provided in part by one or more contractors. Participating nations give

operational control of their military component forces to the Military Component Commander, UNMIH, but retain all

other functions of command.

(3) (U) Jurisdiction Over Non-UNMIH Personnel. Per ref (d), jurisdiction over non-UNMIH personnel remains

with the GOH.

(4) (U) Political asylum. UNMIH personnel are not authorized to grant political asylum. U.S. personnel should

forward requests for asylum in the U.S. by immediate message to CINCUSACOM and refer applicant to the U.S.

diplomatic mission. Temporary refuge will be granted only if necessary to protect human life. Reference (o) provides

detailed information concerning political asylum and temporary refuge.

c. (U) Legal Assistance. JTF USFORHAITI will make arrangements for legal assistance for U.S. personnel of the

UNMIH. U.S. service components should ensure maximum use of pre-deployment screening for wills and powers of

attorney to reduce demands for emergency legal assistance. Component commanders will make arrangements for legal

assistance for personnel assigned or attached to their respective forces. Use inter-service support to maximum extent.

Ref (l) applies.

d. (U) Military Justice.

(1) (U) The inherent authority and responsibilities for discipline of the commanders of U.S. military personnel

assigned to UNMIH, described in references (i), (m) and (n), remain in effect.

(2) (U) Courts-martial and nonjudicial punishment are the responsibility of service component commands,

IAW service regulations.

(3) (U) Component commanders will establish appropriate arrangements for disciplinary jurisdiction, including

attachment orders for units and individuals, where appropriate.

(4) (U) Immediately report to component and the JTF SJA all incidents in which foreign civil authorities

attempt to assume jurisdiction over U.S. forces. The SJA, JTF USFORHAITI, will coordinate all military justice actions

with the SJA, USACOM.

(5) (U) Jurisdiction. Under the privileges and immunities enjoyed by the UN, criminal and civil jurisdiction

over U.S. members of UNMIH resides solely with the United States. Detailed guidance on the jurisdictional status of the

UNMIH is contained in ref (d).

(6) (U) Criminal investigations. JTF USFORHAITI will coordinate with the commanding officer of any U.S.

service member who is allegedly involved in an act of criminal misconduct to ensure that an official from the appropriate

investigative service is appointed to conduct a thorough investigation into the matter. Allegations against non-military

U.S. nationals should be forwarded to an appropriate investigative service after consultation with the SJA, JTF

USFORHAITI. Allegations against non-U.S. persons will be forwarded to the UNMIH Special Representative for proper

disposition. Completed reports of investigation that involve U.S. nationals shall be reviewed by the SJA, approved by

JTF USFORHAITI, and forwarded to the appropriate authority, with copies to the SJA, USACOM, and the UNMIH

Special Representative.

e. (U) Reporting violations of the Law of War and ROE.

(1) (U) Acts of violence. UNMIH personnel will report all acts of violence, to include homicides, assaults,

rapes, robberies, abductions, and instances of mayhem or mass disorder, immediately to their commanding officer. Those

officers shall immediately pass reports to JTF USFORHAITI and the UNMIH Special Representative. UNMIH personnel

Chapter 27, Appendix

MDMP and OPLANS

488
will interfere with the actions of Haitian military or police personnel only as authorized by the rules of engagement.

(2) (U) Law of War. Ref (d) requires that military personnel assigned to UNMIH apply the minimum

standards of the Law of War contained in ref (q). Component commanders who receive information concerning a

possible violation of the Law War and ROE will:

(A) (U) Conduct a preliminary inquiry to determine whether violations were committed by or against U.S.

personnel.

(B) (U) Cooperate with appropriate allied authorities should their personnel be involved.

(C) (U) Report all suspected violations to the JTF SJA, as well as through service component channels,

according to service regulations, utilizing OPREP-3 procedures.

(D) (U) When U.S. personnel are involved as either victims or perpetrators, or when directed by

CINCUSACOM, conduct a complete investigation, preserve all evidence of the suspected violation, and take appropriate

corrective and/or disciplinary action.

(E) (U) Provide copies of all OPREPs, initial reports and reports of investigation to SJA, JTF USFORHAITI, and SJA,

USACOM.

f. (U) Captured Weapons, war trophies, documents, and equipment. Component commanders will establish

immediate accountability for all captured property, including weapons, trophies, documents and equipment. See refs (q)

and (r), and MNF Guidelines, for disposition of captured public and private property remaining from MNF operations.

UN directives apply to any items seized during the duration of UNMIH.

g. (U) Host Nation Support and Fiscal Authority.

(1) (U) Refs (c) and (d) contain basic provisions for host nation support, which is acquired by bilateral logistics

agreements or off-shore contracts.

(2) (U) Fiscal authority is always available for U.S. support to U.S. forces, even when they are assigned a UN

mission. UN operational requirements, even those involving U.S. personnel, should be supported under the authority

discussed below. However, logistics support for U.S. forces which is above and beyond the capacity of UN logistics

operations, and determined by the command to be essential to the sustainment of U.S. forces, is authorized under Article

II of the U.S. Constitution and 22 U.S.C. § 2261.

(3) (U) Authority for support to other nations participating in MNF, provided under provisions of sections 506

(Drawdown), 451 and 632 (Peacekeeping) of the FAA [ref (h)], will terminate upon transition of those contingents to

UNMIH.

(4) (U) U.S. support to UN operational requirements, the UNMIH staff, or UNMIH contingent nations should

be effected pursuant to ref (e). Ref (e) and section 2357 of ref (h) require a request in writing from the UN, with a

commitment for reimbursement. UN procedures should be used to ensure proper documentation of the request, and

proper accounting of funds for reimbursement. Support for the UN may also be provided under separate authority,

pursuant to section 7 of the UN Participation Act (22 U.S.C. § 287), where reimbursement may be waived by the NCA.

(5) (U) Economy Act reimbursement from DoS, cross-servicing agreements, separate 607 agreements with

participating countries, and other alternate authorities may be relied on to support third countries in the absence of a UN

request. Cross-servicing agreements are currently in effect with several nations participating in UNMIH. Copies of the

agreements can be obtained from J4 or SJA, USACOM. As a last resort, in cases of an emergency request for food or

shelter from other contingents, the Presidents Article II authority may be relied on to support a DoD response.

h. (U) Legal Review of the Rules of Engagement (ROE). UNMIH ROE are in effect as of 31 March 95. In cases

not covered by the UNMIH ROE, U.S. Standing ROE (SROE) are in effect. U.S. MNF forces remaining in Haiti after

transition to UNMIH will continue to operate under MNF ROE until redeployment to home station. The Commander,

UNMIH, may promulgate further UN ROE policies. The SJA should review any policies or proposed changes to the

UNMIH ROE, to ensure compliance with PDD 25 and other U.S. law and policy. Any modifications to the UNMIH ROE

that will effect U.S. forces should be coordinated with USACOM prior to implementation.

i. (U) Law Enforcement and Regulatory Functions. All MNF General Orders are in effect until 31 March; they

remain in effect for residual MNF forces in country. Commander, USFORHAITI may promulgate appropriate

disciplinary regulations for U.S. forces in Haiti.

j. (U) Component and Supporting Commanders and Staff Responsibilities: Subordinate component commanders

will:

(1) (U) Ensure that all plans, orders, target lists, policies, and procedures comply with applicable law and

policy, including the Law of War and ROE.

(2) (U) Report on all legal issues of joint origin or that effect the military effectiveness, mission

accomplishment, or external relations of USFORHAITI to the JTF SJA.

(3) (U) Provide a weekly status of general legal operations for their component to the JTF SJA. This report

should include, at a minimum, the following information:

Chapter 27, Appendix

MDMP and OPLANS

489
(A) (U) International law - incidents effecting any bilateral or UN agreements, a potential violation of the

law of war or ROE, and diplomatic incidents involving U.S. forces the forces, government agents, or nationals of another

country.

(B) (U) Military justice - incidents which may give rise to disciplinary action under the UCMJ, as well as

the final disposition of such actions, and any U.S. forces in pretrial confinement. Immediately report serious incidents.

(C) (U) Claims - any incidents which may give rise to a claim against the United States or the UN.

k. (U) Acquisitions During Combat or Military Operations.

(1)(U) U.S. forces will acquire most goods and services in Haiti in accordance with UN procedures for

contracting, per the authority discussed in paragraph g, above.

(2) (U) Goods and services to satisfy U.S.-specific requirements will be obtained in accordance with applicable

U.S. and host nation laws, treaties, international agreements, and directives. Commander, USFORHAITI, does not have

the authority to waive any of the statutory or regulatory requirements contained in the Federal Acquisition Regulation

(FAR).

(3) (U) Only contracting officers may enter into and sign contracts on behalf of the U.S. Government. Only

those persons who possess valid contracting warrants may act as contracting officers and then only to the extent

authorized. Only those persons who have been appointed as ordering officers by competent authority may make

obligations under the terms of, or pursuant to contracts.

(4) (U) Avoid unauthorized commitments. Although an unauthorized commitment is not binding on the U.S.

Government, in appropriate cases it may be ratified by an authorized person in accordance with the FAR provisions.

Unratified unauthorized commitments are the responsibility of the person who made the commitment. In appropriate

cases, such persons may also be subject to disciplinary action.

l. (U) International Agreements and Congressional Enactments. All international agreements will be in writing.

Pursuant to reference (k), agreements of any kind in which the U.S. or a U.S. military component is a party require the

written authorization of CINCUSACOM. Agreements made under UN authority and procedures are not affected by

reference (k).

m. (U) Nuclear, Biological, and Chemical Weapons. Riot control agents are an authorized method of employing

non-deadly force under the UNMIH ROE. No further U.S. authorization is required for their employment.

n. (U) Targeting. A judge advocate will review all fire support targeting lists to ensure compliance with the Law

of War and ROE, and will act as a member of the JTF targeting cell.

o. (U) Detainees. [The UNMIH will exercise only that degree of control over non-UNMIH persons that is

necessary to establish and maintain essential civic order. UNMIH is not tasked to perform Haitian law enforcement or

judicial responsibilities.] Wherever practicable, and as soon as possible, deliver custody of non-UNMIH personnel

detained for suspected offenses against UN personnel or property to official representatives of the GOH. Further

guidance regarding the detention of non-UNMIH persons is contained in the UNMIH rules of engagement, and ref (d).

p. (U) Interaction with the International Committee of the Red Cross (ICRC). All interaction with nongovernmental organizations (NGOs) should be accomplished through the UNMIH staff, including the civilian staff of the

Special Representative. The SJA will continue to monitor all Law of War issues and provide subject matter expertise to

the UNMIH staff.

Chapter 27, Appendix

MDMP and OPLANS

490
CHAPTER 28

CENTER FOR LAW AND MILITARY OPERATIONS (CLAMO)

REFERENCES

1. Dept of the Army, Field Manual 27-100, Legal Support to Operations, 1 March 2000.

2. Dept of the Army, Field Manual 101-5, Staff Organization and Operations, 31 May 1997.

1. OVERVIEW

The primary purpose of this Chapter is to familiarize JAs with the Center for Law and Military Operations

(CLAMO), to familiarize JAs with the U.S. Armys Combat Training Centers (CTCs), and to assist JAs in preparing for

and executing deployments.

2. CLAMO: A RESOURCE

a. Mission

The Center for Law and Military Operations (CLAMO) is a resource organization for operational lawyers in the

Army and Marine Corps. It was created in 1988, at the direction of the Secretary of the Army, and is an independent

organization located at The Judge Advocate Generals School of the Army in Charlottesville, Virginia. The Centers

mission is to examine legal issues that arise during all phases of military operations and to devise training and resource

strategies for addressing those issues. It seeks to fulfill this mission in five ways:

It is the central repository within The Judge Advocate Generals Corps for all-source data/ information, memoranda,

after-action materials and lessons learned pertaining to legal support to operations, foreign and domestic.

It supports judge advocates by analyzing all data and information, developing lessons learned across all military legal

disciplines, and by disseminating these lessons learned and other operational information to the Army, Marine Corps,

and Joint communities through publications, instruction, training, and databases accessible to operational forces,

world-wide.

It supports judge advocates in the field by responding to requests for assistance, by engaging in a continuous

exchange of information with the Combat Training Centers and their judge advocate observer-controllers, and by

creating operational law training guides.

It integrates lessons learned from operations and the Combat Training Centers into emerging doctrine and into the

curricula of all relevant courses, workshops, orientations, and seminars conducted at The Judge Advocate Generals

School.

In conjunction with The Judge Advocate Generals School, it sponsors conferences and symposia on topics of

interest to operational lawyers.

The Center contributes to the JAGCs operational role by reviewing doctrinal and resource development, through

education and training, and by providing assistance during operations. All of the Centers initiatives enhance legal

support to operations within the Army, the Marine Corps, and throughout the Department of Defense. The Center focuses

on the practice of operational lawall domestic, foreign and international law that directly affects the conduct of

operations.

b. Initiatives

Chapter 28

CLAMO

491
Center Initiatives include

Law and Military Operations in Haiti 1994-1995: Lessons Learned for Judge Advocates (1995)

Nuremberg and the Rule of Law, A Fifty-Year Verdict (1995)

In the Operations Center: A Judge Advocates Guide to the Battle Command Training Program (1996)

Tackling the Contingency Deployment: A Judge Advocates Guide to the Joint Readiness Training Center

(1996)

An Introduction to the Combat Training Centers (1998)

Law and Military Operations in the Balkans, 1995-1998: Lessons Learned for Judge Advocates (1998)

Deployed Judge Advocate Resource Library (on CD) (Oct. 1999)

FM 27-100, Legal Support to Operations (With the Combat Developments Department, TJAGSA) (Mar.

2000)

Rules of Engagement Handbook for Judge Advocates (May 2000)

Law and Military Operations in Central America: Hurricane Mitch Relief Efforts, 1998-1999  Lessons

Learned for Judge Advocates (2000)

Deployed Judge Advocate Resource Library 2d Edition (on CD)(Oct. 2000)

Domestic Operational Law Handbook (2001)

c. Internet Resource Databases

In addition to publishing guides for the operational law practitioner, the Center creates and maintains Internet

accessible databases. The Center has created over fifteen databases with more than 2,600 primary source documents,

directives, regulations, country law studies, graphic presentations, photographs, and items of legal work product

accessible via installation Lotus Notes servers or the Internet at www.jagcnet.army.mil/clamo for registered users.

Topical databases include

Domestic Operational Law (DOPLAW) Noncombatant Evacuation Operations (NEO)

Kosovo War Crimes

Bosnia: Operations Joint Endeavor & Guard 71D Operations (Legal Specialists)

General Operational Law Materials Korea

Rucksack Deployable Law Office and Library Reserve Corps and RC AARs

Country Materials Unclassified SOFAs

UN Resolutions GAO Reports

Rules of Engagement (ROE) MAGTF (Marine Air Ground Task Force) for Marines

Combat Training Centers (CTCs)

To access the databases:

If you are a first time user (do not have or have lost your JAGCNet user name and/or password):

Go to www.jagcnet.army.mil web site.

Click the Enter JAGCNet button.

Click the Register button.

Follow the instructions.

If you already have a JAGCNet user name and password:

Go to the CLAMO home page site directly at www.jagcnet.army.mil/clamo OR go to the

www.jagcnet.army.mil web site and click the Center for Law and Military Operations button.

Click the CLAMO Databases button.

Chapter 28

CLAMO

492
d. The Army JAG Corps JAGCNet Databases

In addition to the CLAMO databases, the Armys Judge Advocate Generals Corps maintains databases on all core

legal disciplines, available to registered users at www.jagcnet.army.mil. Among others, JAG Corps databases include the

following

Administrative Law Ethics  Attorney Professional Responsibility

Contract Law Ethics  Standards of Conduct

Environmental Law Medical Legal Issues

Labor and Employment Law Judge Advocate Leader Development

International and Operational Law Government Appellate Division Brief Bank

Legal Assistance U.S. Army Trial Defense Services (TDS)

Claims Military Justice  Criminal Law

To access the databases:

If you are a first time user (do not have or have lost your JAGCNet user name and/or password):

Go to www.jagcnet.army.mil web site.

Click the Enter JAGCNet button.

Click the Register button.

Follow the instructions.

If you already have a JAGCNet user name and password:

Go to www.jagcnet.army.mil web site

Click the Enter JAGCNet button.

Click the Enter button.

If the databases are not already listed, click the Databases button.

e. The Centers Organization

The Director of CLAMO is also the Chief, International and Operational Law Division, Office of The Judge

Advocate General. The Deputy Director heads the main office in Charlottesville, Virginia. The Center collects materials

from attorneys and paralegals deployed in support of contingency operations around the globe. The Charlottesville office

also maintains formal links to the Armys four Combat Training Centers, where judge advocates are assigned full-time to

the Operations Groups that train Army, joint, and multinational forces. The Assistant Judge Advocate General for

Military Law and Operations approves all of the Centers projects, preserves the independence of its analyses, and ensures

that its work remains responsive to the needs of the Army and the joint service community of operational lawyers.

Director COL David E. Graham

Deputy Director LTC Stuart W. Risch

Director, Domestic Op. Law LTC Gordon W. Schukei

Director, Training & Support CPT Alton L. Gwaltney, III

Marine Representative Maj Cody Weston, USMC

Automation Technician Mr. Ben R. Morgan

Advanced Operational Law Studies MAJ Keith E. Puls

MAJ Daniel G. Jordan

Judge Advocate Observer-Controllers at the Combat Training Centers (CTCs):

Battle Command Training Program (BCTP) 3 JA Observer-Trainers

Combat Maneuver Training Center (CMTC) 1 JA Observer-Controller

Joint Readiness Training Center (JRTC) 3 JA and 1 71D Observer-Controllers

National Training Center (NTC) 2 JA Observer-Controllers

Chapter 28

CLAMO

493
More information on the CTCs and contact information for the individual observer-controllers and observer-trainers is

available in CLAMOs Combat Training Centers database (see par. 2.C. above).

f. Contact the Center

The Center invites contribution of operational law materials, ideas from the field, comments about its products, and

requests for information. E-mail, call or write to request or submit materials. E-mail CLAMO at

CLAMO@hqda.army.mil, SIPRNET or classified E-mail at CLAMO@hqda-s.army.smil.mil. Write the Center for Law

and Military Operations, 600 Massie Road, Charlottesville, Virginia 22903-1781. Call the Center at (804) 972-

6339/6448, DSN 934-7115 extension 6339/6448. Visit the CLAMO web page at www.jagcnet.army.mil/clamo.

3. COMBAT TRAINING CENTER (CTC) PARTICIPATION

The Army employs four combat training centers (CTCs): The Joint Readiness Training Center (JRTC), The National

Training Center (NTC), The Combat Maneuver Training Center (CMTC), and The Battle Command Training Program

(BCTP). These four CTCs, along with the Joint Warfighting Center (JWFC), train all components of the fighting force.

Each of the CTCs focuses on specific warfighting elements. This section will describe the CTCs and the JWFC, who they

train, and the role of the judge advocate at each.

a. The Joint Readiness Training Center (JRTC)

JRTC is located at Fort Polk, Louisiana. This CTC focuses primarily on training light infantry brigade task forces in

low-to-mid-intensity conflict. This is accomplished through the use of tough, realistic training conditions.

Each fiscal year, JRTC conducts eight rotations and two Mission Readiness Exercises (MREs). A single rotation

consists of 16 days. This time is divided roughly as follows: Days 1-4 are spent in the Intermediate Staging Base (ISB)

and days 5-16 are spent performing the exercise itself (in the box).

A typical training scenario at JRTC includes a brigade-sized joint task force deploying to the fictional island of

Aragon to support the friendly nation of Cortina. In addition to the approximately 3,500 troops supporting the brigade,

there are also approximately 1,500 troops supporting echelons above division (EAD) units during a normal rotation.

These EAD units usually include a combat hospital as well as a corps support group. The permissive or forced entry of

coalition forces into Cortina is intended to improve stability in the region by quelling an ongoing insurgency in Cortina.

A non-MRE rotation generally has three operational phases. First is an insertion and counter-insurgency operation;

second is a defense (in response to an Atlantican attack); and third is an attack into a state-of-the-art Military Operations

in Urban Terrain (MOUT) complex.

Numerous forces augment the airborne, air assault, and light infantry brigades to provide flexibility and light-heavy

integration. Such forces include mechanized and armor units, special operations forces, Air Force Air Combat Command

forces, and Naval, Marine Aviation and Marine Air Naval Gunfire Liaison Company (ANGLICO) units.

Due to the low-to-mid intensity environment, the different phases of the operation, and the various parties involved,

JRTC is a legally rich training environment. In the Entry/Counter-Insurgency Phase, JAs will encounter issues such the

international justification for the entry of U.S. and other friendly forces, use of facilities, justification for the use of force,

and the collection of intelligence from civilians. This phase also stresses issues relating to rules of engagement (ROE),

security assistance, nation assistance, and force protection. In the Defensive Operations phase, additional issues arise,

such as noncombatant evacuation operations (NEOs), requests for political asylum, the handling of refugees, and other

diplomatic issues. Atlantican attacks will also trigger application of the law of war and civilians may have to be

physically cleared from the battlefield. In the Offensive Operations Phase, JAs will encounter still more issues, such as

maneuver damage claims, weapons and targeting issues, peculiarities relative to operations on urban terrain, the handling

of prisoners of war, and issues relating to the occupation of territory.

While in Cortina, U.S. forces encounter many difficult situations dealing with civilians. Units will deal with civilians

on the battlefield (COBs), including those supporting the Cortinian democratic government (pro-U.S.), Cortinians

espousing the overthrow of the Cortinian government (anti-U.S.), Atlanticans posing as Cortinians (anti-U.S.), and

Chapter 28

CLAMO

494
neutrals who can be swayed. Rotational units will also encounter non-governmental organizations, competing

governmental organizations, political parties, news media, Cortinian police and paramilitary forces, and uniformed and

non-uniformed insurgent military forces.

Mission Rehearsal Exercises (MREs) are generally shorter in duration (approximately 12 days in length) but include

many of the legally intense issues associated with a peacekeeping deployment. They are currently used to train both AD

and NG units that are due to assume the rotations in Bosnia and Kosovo. These exercises attempt to replicate the COBs

and issues that will be encountered by the unit in either Balkan location.

There are four observer/controllers (O/Cs) at JRTC, three JAs and one 71D NCO. Their role is to teach, coach, and

mentor the Brigade Operational Law Teams (BOLTs) involved in the exercises in an effort to help rotational JAs and

71Ds improve their respective contributions to their units mission. These O/Cs also provide O/C coverage to JAs

supporting EAD units. After-action reviews (AARs) are conducted after each operational phase and a final exercise

review occurs at the exercise conclusion (ENDEX). Later, a Take Home Packet (THP) capturing O/C observations is

provided to the BOLT and the unit.

b. The National Training Center (NTC)

NTC is located at Fort Irwin, California, in the middle of the Mojave Desert. The NTC focuses primarily on training

Brigade Combat Teams (BCTs) in mid-to-high intensity conflict. This training is accomplished through the use of

realistic joint and combined arms training in contingency-based scenarios. NTC provides comprehensive force-on-force

maneuver and live fire training.

The maneuver box at the NTC is as large as the state of Rhode Island, 1,001 square miles. The depth and width of

the battle space gives brigade elements the unique opportunity to exercise all of its elements in a realistic environment.

This is often a units only opportunity to test its combat service and combat service support elements over a doctrinal

distance. BCTs must be able to communicate through up to 8 communications corridors, evacuate casualties over 40

kilometers, and navigate at night in treacherous terrain with few distinguishable roads. Other environmental conditions

such as a 40 to 50 degree diurnal temperature range, winds over 45 knots, and constant exposure to the sun stresses every

system and soldier to their limit.

The NTCs training scenario is set on the fictional island of Tierra Del Diablo. The discovery of weapons grade

Uranium in the disputed region of Parumphistan (a province of Mojave) led to increasing tensions between the U.S., the

Peoples Democratic Republic of Krasnovia (a Warsaw pact nation and Soviet-style enemy), the Kingdom of Parumphia

(a Krasnovian ally), and the Republic of Mojave (friendly, democratic, pro-western country). The Baja Republic to the

south remains neutral. U.S. troops deploy to Mojave in support of the peace process and to aid in the defense of Mojave

if necessary. The other group involved in the region is the Parumphian Peoples Guerillas (PPG). This is a loosely

organized group of terrorists / freedom fighters who want Parumphistan to return to Krasnovian control.

Each fiscal year, NTC conducts ten (10) rotations, each rotation consisting of 28 days. The first 5 days (RSOI 1-5)

are spent generating combat power and integrating into the 52

nd ID (M). During this period, there are host nation visits,

demonstrations, stability and support operation (SASO) missions, media events and attacks by the PPG, which challenge

the BCT JA and civil-military operations cell. The second phase, training days 6-9, is force-on-force training where the

BCT conducts high intensity operations with the Krasnovian forces using MILES equipment. During this time period a

BCT will normally conduct one defense in sector, two attacks and a movement to contact. The battle rhythm gives the

BCT 24 hours between missions with two of the battles fought back-to-back. The third phase of the operation is live fire.

This phase usually runs training days 9-14. NTC is the only facility in the U.S. Army that allows a full Brigade Combat

Team to conduct both a live fire attack and a live fire defense integrating all of the Battle Operating Systems (BOSs),

including direct air support from the Air Force. The BCT then fights through the ground upon which it conducts the live

fire. Live fire may also include an attack on a local village by light forces or MPs to clear PPG. The final 8 days of the

operation is regeneration of combat power and redeployment.

JAs can expect to encounter numerous legal issues during all phases of the rotation. During the RSOI phase, JAs can

expect to encounter issues involving humanitarian assistance operations, ROE, escalation of force, international

agreements, and claims as well as emergency legal assistance and trial counsel duties. In the Force-On-Force/Live Fire

Training phases, issues relating to civilians on the battlefield, media representatives, non-governmental organization

Chapter 28

CLAMO

495
visits, local government concerns and requests, guerrilla activity, and EPWs are typically encountered. Throughout the

rotation, JAs are usually responsible for tracking fratricide and law of war violation reports and investigations.

Regeneration has little legal play, but this is where all of the real world issues tend to surface.

There are currently two JA O/Cs at NTC. One of the OCs is the primary JA trainer, responsible for teaching,

coaching, and mentoring the JAs involved in the exercise. The other OC is a scenario writer, OC for the civilian on the

battlefield (COB) program, and replicates the 52nd ID (M) SJA. There is a Hummer top AAR after each civilian event,

and BCT-wide AARs at the end of RSOI and after each battle.

c. The Combat Maneuver Training Center (CMTC)

The CMTC is located at Hohenfels, Germany. Until recently, CMTC was loosely considered the NTC of Europe,

focusing on force-on-force maneuver training. However, CMTC now boasts state-of-the-art MOUT and ancillary training

facilities that allow CMTC to provide training in both combat operations and military operations other than war

(MOOTW). The CMTC provides training across the spectrum of conflict, using scenarios developed from recent

operations (Haiti, Somalia, Bosnia, and Kosovo, etc.) and mission rehearsals to prepare forces for deployment or likely

contingency operations. The CMTC focuses on brigade and below commands and staffs, force-on-force maneuver

training for armored and mechanized infantry battalions, company-level situational training exercises (STXs), and

individual replacement training (IRT) for forces entering the Bosnia and Kosovo theaters of operations.

The maneuver box at the CMTC is 10 km x 20 km in area. The size of the box is ideal for battalion task force

sized elements. Typically, a brigade headquarters will deploy to the CMTC and serve as the higher headquarters as each

of its battalions rotates through their training exercise. At least twice during each rotation, two battalions operate in the

box at one time. During these periods, the brigade headquarters also deploys into the box and operates with the two

battalions, conducting both defensive and offensive operations. The brigade judge advocate functions within the brigade

headquarters, responding to legal issues both during brigade ops and when only one battalion is in rotation.

CMTC offers training in both high-intensity conflict (HIC), force-on-force scenarios, and low-to-mid-intensity

conflict (LIC/MIC), and military operations other than war (MOOTW). Except for mission-specific rehearsal exercises,

CMTC uses the same general scenario. The HIC portion generally involves three neighboring countries, Sowenia,

Vilslakia, and Juraland. Sowenia is a fledgling democracy and an ally with the United States and NATO. The Vilslakian

government was recently overthrown by a military coup and is now making claims to a small portion of Sowenia,

inhabited mostly by ethnic Vilslakians. Juraland struggles to remain neutral. The scenario begins either as a PSO

scenario that moves to HIC when the Vilslakians cross the international border or it begins as a HIC rotation once the

Vilslakians have already crossed the border.

CMTC conducts approximately 5 brigade rotations (up to 63 days each) per year, each with imbedded battalion

rotations (25 days each). CMTC also conducts two Mission Rehearsal Exercises (up to 28 days each) per year and

teaches 4 Individual Readiness Training Situational Training Exercises (IRT STX) per month. Each brigade rotation is

comprised of up to 3 task forces and 1 Cavalry squadron. Rotations typically employ the 3-5-14-3 day rotational task

force window model: 3 day deployment/MILES draw; 5 day company focus lane training (STXs); 14 day force-onOPFOR maneuver exercise in movement to contact/attack/defend stages; and a 3 day recovery.

JAs can expect to encounter numerous legal issues at CMTC, whether involved in HIC or LIC/MIC. Issues that

routinely arise include weapons and targeting, claims resulting from maneuver damage, the Law of War, armed civilians,

and civilian protection.

There is currently one JA O/C at CMTC. The role of the JA O/C is to teach, coach, and mentor the JAs involved in

the exercise. An AAR is conducted at the culmination of the units training exercise and the unit is provided a Take

Home Package.

d. The Battle Command Training Program (BCTP)

BCTP, the Armys capstone combat training center, is located at Fort Leavenworth, Kansas. BCTP supports

realistic, stressful training for ASCC/ARFOR, Corps, Division, and Brigade commanders and supports Army components

Chapter 28

CLAMO

496
participating in joint exercises to assist the CSA in fulfilling his duties to provide trained and ready units to win decisively

on the modern battlefield and to conduct contingency operations worldwide. BCTP uses simulation centers worldwide to

train commands and staffs.

BCTP is composed of four Operations Groups (OPGPs A, B, C, and D) as well as a Headquarters, and the World

Class Opposition Forces (WCOPFOR). The three JAs assigned to BCTP, the Operational Law Observer Controllers

(OPLAW OCs), are assigned to the Headquarters and support each of the Operations Groups (OPGPs). Each OPGP is

commanded by a colonel (Commander, Operations Group or COG) and has a unique mission. OPGPs A and B focus

primarily on division and corps warfigther exercises (WFX). These two OPGPs have a combined capability to conduct

14 division WFXs per year. A corps WFX equals two division WFXs, as both OPGPs are required. They also conduct

seminars, mission rehearsal exercises (MREs), and advanced-decision making exercises (ADMEs) for units deploying in

support of peacekeeping operations. OPGP C focuses on training National Guard brigades and the Armys new Initial

Brigade; and conducts 14 brigade rotations per year. Prior to each WFX conducted by OPGPs A, B, or C, each OPGP

conducts a WFX seminar at Fort Leavenworth, Kansas or at the training units home station. OPGP D focuses on

ASCC/ARFOR training and Army components participating in joint exercises. OPGP D does not normally conduct its

own exercises. Instead, it observes its training audience while participating in a joint-conducted exercise.

BCTP differs from NTC, JRTC, and CMTC in that there is no tangible maneuver box at BCTP. Instead, all

training is performed via computer simulation and centers around a notional computer-generated box. Many

spontaneous legal issues arise naturally during the course of a WFX (such as targeting issues, fratricides, and civilians on

the battlefield). Additionally, OPGPs A, B, and C insert legal and information operations issues (such as law of armed

conflict, ROE, international agreements, justification of the use of force, contract and fiscal law, military justice, foreign

claims, and legal aspects of joint, inter-agency, non-governmental and international organization coordination) into the

training scenario. JAs should also be prepared to face traditional issues, such as weapons utilization and targeting. The

number of legal events inserted depends on the training unit and the SJAs training objectives; however, the JA

Observer trainers have increased the number of events from about sixty to about ninety over the past training year. Many

of the new events are focused at legal NCOs. The idea is to stress all members of a units legal team. Recent training

units have reported experiencing a healthy degree of training stress. For corps and division WFXs, many of these issues

are inserted via the Green Cell, which is a neutral information operations exercise control cell tasked to bring greater

training realism to the exercise. Normally, two JAs will be tasked to support the contractors in the Green Cell to

provide legal guidance regarding the information operations issues and to insert the legal/operational law issues into the

WFX.

Approximately 100 days before an OPGP A, B, or C exercise actually begins, the OPGP plans and executes a five to

seven day Battle Command Seminar at Fort Leavenworth, Kansas. The Seminar is designed to afford the CG an

opportunity to focus on the military decision-making process (MDMP) and build his battle command staff. A reduced

staff from the training unit deploys to Fort Leavenworth, Kansas, to either the Battle Seminar Facility (for OPGPs A and

B seminars) or the Leadership Development Center (for OPGP C Seminars), where they focus on doctrine and tactics.

TRADOC Regulation 350-50-3 requires the Staff Judge Advocate and the Chief, Operational Law, attend the Battle

Command Seminar.

The nature of operations at BCTP varies, as each WFX is geared to the training commanders mission-essential task

list (METL). Once the exercise actually begins, the JAs working in the Green Cell insert events into the exercise and

the BCTP OC team observes the training units response to these and any naturally occurring legal events during the

WFX.

Every OPGP A, B, or C rotation includes at least two formal COG-lead AARs, lasting about 2 hours. In addition, the

judge advocate OC team conducts an informal AAR for the JAs undergoing training.

e. The Joint Warfighting Center (JWFC)

Located in the Joint Training, Analysis, and Simulation Center (JTASC) in Suffolk, Virginia, the JWFC trains joint

force commanders, staffs, and component forces operating as part of a joint or multinational force how best to accomplish

joint mission-essential tasks specified by the supported combatant commander. There is one judge advocate at the JWFC,

a Navy Lieutenant Commander. The JWFC provides, among other things, extensive replication or role-playing of entities

external to the training audience; robust scenarios; Joint Theater-Level Simulation or Joint Training Confederation

Chapter 28

CLAMO

497
architecture; in-depth, focused functional training; senior mentors; experienced observer/trainers; information operations

and media play; and in-depth post-exercise analysis, summaries, and lessons learned. For more information, visit the

JWFC web site at http://www.jwfc.jfcom.mil/home.html.

4. DEPLOYMENT PREPARATION

Be prepared. Once the order comes, its too late! 382

See the chapter on Checklists of this Handbook for general and core legal discipline-specific Predeployment

Checklists.

Deployment preparation falls into two categories: (1) General and (2) Mission-Specific. General deployment

preparation should be continuous and ongoing. Mission-specific deployment preparation begins once a warning order is

received or a deployment is imminent. Ongoing, general predeployment preparation is the key to success. There are

many tasks the operational judge advocate, trial counsel/Brigade Operational Law Team (BOLT) Chief, and other

attorneys can perform now and on a regular basis to better prepare them for a short-notice deployment. A few examples

include:

Have a predeployment SOP and checklists and rehearse them.

War-game deployments. Walk up the escalating scale of contingencies with the Staff Judge Advocate. There should

be an office-level plan detailing who will deploy and how deployed JAs positions will be back filled and/or their

duties and responsibilities reassigned. This is a prime opportunity to tie in nearby Reserve Component JAs and

develop a working relationship with them prior to the need arising.

Have a battle box loaded with legal references, materials, the RDL (Rucksack Deployable Law Office and Library)

and its supporting equipment, and office supplies.

Run an efficient Soldier Readiness Program (SRP) for supported units, saving last minute waves of wills, powers of

attorneys, family support plan issues, etc.

Whether deploying to a Combat Training Center, another exercise, or an actual operation, the keys to predeployment

preparation remain the same:

Doctrine

Training

Leadership and Integration

Legal Support Plan (Organization, Materiel and Soldiers considerations)

a. Doctrine

General deployment preparation must begin with the Judge Advocate Generals Corps keystone doctrinal

publication for legal support to operations, FM 27-100. FM 27-100 explains the role of the Judge Advocate, organizing

to support Army operations, operational law and the core legal disciplines, and legal support in theater operations, war,

operations other than war, and domestic operations. It provides the basis for legal training, organizational, and materiel

development. It contains guidance for Staff Judge Advocates and other legal personnel, as well as for commanders and

their staffs. It implements relevant Joint and Army doctrine, incorporates lessons learned from recent operations, and

conforms to Army keystone doctrine.

At the joint level, Judge Advocates should consult DRAFT JOINT PUB 1-04, JOINT TACTICS, TECHNIQUES, AND

PROCEDURES FOR LEGAL SUPPORT TO MILITARY OPERATIONS, FINAL COORDINATING DRAFT (8 February 2001).

Deploying JAs must also be familiar with other Army doctrine, such as DEPT OF THE ARMY FIELD MANUAL 101-5, STAFF

ORGANIZATION AND OPERATIONS (31 May 1997).

382 Major Dale N. Johnson, Joint Task Force Aguila: Legal Operations After Action Review (AAR) (March 1999) (unpublished compilation of

Hurricane Mitch disaster relief materials, on file with CLAMO).

Chapter 28

CLAMO

498
b. Training

There is no substitute for tough, realistic training. Preparation for deployment requires training of three target

audiences: judge advocate personnel, commanders and their staffs, and troops. Training methods include briefings,

individual training, leader/commander training, and collective training.

(1) Judge Advocate Personnel

Staff/Command Judge Advocates are responsible for implementing a training program for their legal

personnel. This program should abide by the Armys principles of training. See FM 27-100, section 4.5, for a detailed

description of these principles and how a training program should be established.

a. METL. A legal office or JAG training program must be integrated with the units overall

mission and training program. This is done through the development of battle tasks and selection of those tasks that are

mission essential to form the Mission Essential Task List (METL). Based on these tasks, subordinate collective and

individual tasks are developed with conditions and standards.

b. Training Plan. Once the METL, battle, and supporting collective and individual tasks are

identified, a training plan should be developed. The training plan should begin with an assessment of each tasks training

statustrained, needs improvement, or untrained. Then a long-range plan of specific training events and activities is

developed to bring untrained tasks and tasks needing improvement to a trained level, while ensuring trained tasks remain

so. The training program should be a cycle of assessment, training, evaluation, and retraining.

c. Common Soldier Task Training (CTT).383 Training must address both the soldier and the

lawyertactical skills and legal skills. Legal personnel must all train common soldier tasks. Often, it is possible to get

this training from the supported combat units, providing an added opportunity for integration with supported units.

d. Legal Skills. In todays legally complex operations and conflicts, judge advocates must be

jacks of all trades, proficient in all of the core legal disciplines and legal functional areas.384 Todays operational

environment often requires JAs and their 71Ds to be geographically dispersed and to operate individually. Legal support

often sees JAs and their 71Ds dispersed and operating alone. Thus JAs and legal specialists must all train in each of the

core legal disciplines. 71Ds should be able to recognize legal issues requiring JA attention (issue spot), know where to

turn and research to get answers and guidance, initiate investigations and actions, and all other aspects of the delivery of

legal services in a potentially austere environment.

e. Types (unit, office, individual). Legal personnel should use all training methods available.

Unit collective training is a prime mode of conducting common task training. Office professional development sessions

and mini-JA exercises are good for training JAs in the core legal disciplines and the practice of operational law. When

field training opportunities arise, JAs should deploy and exercise their technical chains. Ultimately all Judge Advocates

must proactively seek out resources, reading materials and opportunities to train themselves.

(2) Commanders and Staff

JAs know to train commanders and staffs in the critical operational issues of rules of engagement

(ROE)

385 and law of war (LOW). However, general deployment preparation should also include a strong preventive law

training program. For example, commanders and staff should be trained on fiscal law principles and constraints. This

will help prevent unauthorized commitments in operations and exercises. Preventive legal assistance instruction should

383 See, e.g., DEPT OF THE ARMY STP 21-1-SMCT, SOLDIERS MANUAL OF COMMON TASKS, SKILL LEVEL 1 (October 1994).

384 See DEPT OF THE ARMY FIELD MANUAL 27-100, LEGAL SUPPORT TO OPERATIONS (1 Mar. 2000). The six core legal disciplines are administrative

law, civil law, claims, international law, legal assistance and military justice. The three legal functional areas are command and control, sustainment,

and personnel service support (or support, for short). The practice of operational law consists of legal services that directly affect the command and

control and sustainment of an operation.

385 See CENTER FOR LAW AND MILITARY OPERATIONS, RULES OF ENGAGEMENT (ROE) HANDBOOK FOR JUDGE ADVOCATES, Ch.2 (1 May 2000) (for

details on ROE training).

Chapter 28

CLAMO

499
educate commanders about the Soldiers and Sailors Civil Relief Act (SSCRA), basic tax filing and exemption

considerations that accompany a deployed environment, and more.

(3) Soldiers

Judge Advocate conducted ROE, Law of War and Code of Conduct training of soldiers is the minimum

requirement. However, like commanders and their staffs, soldiers also stand to gain from preventive law training in the

core legal disciplines. Instruction on basic family and financial obligations and how they are affected by deployments

should be part of ongoing general deployment preparation. Instruction on the concept and normal contents of general

orders helps soldiers to understand the deployed disciplinary environment.

c. Leadership and Integration

A critical lesson learned and observation from most every deployment is the importance of predeployment

integration with the supported commander, staff and unit. Judge advocates must take the initiative and proactively lead

legal support to operations. This means focusing on deployment preparation, developing legal support plans (see para. d.

below), and integrating with the unit. Efforts to integrate before an actual mission arises should include attending

regularly scheduled meetings (training, command and staff), social events, field exercises, and key training events. Legal

personnel should ensure they, legal issues, and reporting requirements and formats (such as fratricides, law of war

violations, and civilian casualties) are integrated into unit standing operating procedures (SOPs). Mission-specific

integration should include attending planning meetings, situational updates, commander back briefs, and orders briefings.

d. Legal Support Plan (Organization, Materiel and Soldiers considerations)

In general deployment preparation, the legal support plan is the Deployment SOP. The Deployment SOP should be

constantly reviewed, revised and rehearsed. In mission-specific deployment preparation, the legal support plan is the

Legal Annex to the Operations Order/Plan (OPORD/OPLAN). The legal support plan is the first and most significant task

to be performed by a Staff or Command Judge Advocate in preparing for deployment.

For specific missions, decisions must be made as to the personnel, resources, materiel and equipment required to

provide legal support throughout the phases of the operation and throughout the area of operations. The legal support

plan must consider and support each phase of the operation. It should map out the personnel, resources, materiel and

equipment needed, as well as where they are needed, and when and how they will get there. The plan should account for

including legal personnel in the TPFDD (Time Phased Force Deployment Data) so they arrive in theater at appropriate

times, meet load-out deadlines for vehicles and equipment, check with the signal officer as to what communications

support will be available throughout the theater, etc. The legal support plan should be tied to both the LPB and METTTC analyses. The Legal Annex to the OPLAN/OPORD is a formal, written distillation of the legal support plan.

(1) Legal Preparation of the Battlefield (LPB)

Even though the legal issues confronted by a JA in operations are varied, they are, to a great extent,

predictable. Predicting legal issues in an operation is important because doing so contributes directly to the JAs planning

and decision-making process. One method of predicting the legal issues is to read after action reports and lessons learned

materials gathered and published by CLAMO. Another, proactive method of predicting legal issues is to conduct Legal

Preparation of the Battlefield, or LPB.

386 LPB is a methodology, or a planning tool, derived from the Intelligence

communitys Intelligence Preparation of the Battlefield (IPB), to help the JA anticipate legal issues in operations. Simply

put, the JA prepares a chart analyzing requirements from each core legal discipline for each phase of the operation (Figure

1).

386 Legal Preparation of the Battlefield (LPB) is a concept developed by MAJ Geoffrey Corn of the International and Operational Law Department at the

Judge Advocate Generals School, Charlottesville, Virginia. A more complete explanation of the LPB process can be found at International and

Operational Law Note, A Problem Solving Model for Developing Operational Law Proficiency: An Analytical Tool for Managing the Complex, ARMY

LAW., Sep. 1998, at 36.

Chapter 28

CLAMO

500
Next the JA identifies those issues that are mission critical, and attempts to resolve them proactively

applies preventive law to any issues that can be addressed prior to deploymentand raises show-stoppers to the

commander and his staff. This is done in the format of a legal estimate.

The resulting LPB product should also be used to create a legal support plan. As operations change over

time and by phase, so will the type and quantity of legal issues. Phases of an operation may be generically labeled, such

as mobilization and predeployment, deployment and entry, and redeployment and demobilization. Operations may have

more mission-specific names, such as Joint Task Force Bravos phases for the Hurricane Mitch relief operations in

Honduras: readying, reaction, relief, and rebuilding.

The type and quantity of legal issues faced by JAs, as well as the quality of information available upon

which to base analysis, and hence the basis of legal opinions, will vary by phase. This lesson was learned in Bosnia387 and

the Hurricane Mitch relief operations,

388 among others. The patterns of legal issues that developed during past operations

may help JAs to conduct better legal preparation of the battlefield for future operations. Accurately predicting the flow of

legal issues allows the JA to better tailor legal support to the specific operation. An important lesson learned about

rapidly changing phases in an operation is that legal opinions can grow stale (become invalid or erroneous) with time.

JAs must ensure legal opinions address each issue under the current facts and situation, and that commanders do not rely

upon old or uniquely grounded opinions as a continued basis of authority.

(2) METT-TC

The Staff or Command Judge Advocate (SJA or CJA) must be part of the Military Decision Making Process

(MDMP) and its seven-step process: (1) Receipt of mission; (2) Mission analysis; (3) Course of action development; (4)

Course of action analysis; (5) Course of action comparison; (6) Course of action approval; and (7) Orders production.

389

Functions performed by staff members, to include the SJA/CJA, include providing information, making estimates,

making recommendations, preparing plans and orders, and supervising the execution of decisions. Mission analysis is

critical to the overall planning process and to the preparation of the legal support plan. METT-TC is an analytical tool

critical to conducting mission analysis, creating the legal estimate, and creating a legal support plan. METT-TC requires

the staff officer to consider the factors of Mission, Enemy, Troops, Terrain, Time available and Civilians. While LPB

maps out the types and quantities of legal issues expected to arise through the operation, METT-TC analysis fills in the

remaining gaps, context and constraints. For example, by considering where friendly troops will be, what they will be

doing, what enemy actions will likely occur, where displaced and/or host nation civilians are likely to be, etc., JAs can

better decide where provision of legal support is most critical.

(3) The Resulting Product: Legal Annex to the Operations Plan/Order (OPLAN/OPORD)

LPB is a device for predicting the type and quantity of legal issues that will arise through the phases of an

operation. LPB is interrelated with METT-TC analysis, as LPB is based in part on the projected phases of the operation.

METT-TC should be done in conjunction with the commander and other staff members during the decision-making

process. By tying together the LPB-predicted flow of legal issues with the concept and phases of the operation, an idea of

how many JAs will be needed where, and at what times (when) may be developed. Then, after considering the overall

task organizationunits that will compose the deployed forces and their organic judge advocate assetsthe decision as

to who (which specific judge advocates by name or position) will deploy is made. The result should be a written legal

annex to the OPLAN/OPORD that summarizes the legal support to the operation throughout the area of operations for all

needed phases.

387 See CENTER FOR LAW AND MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN THE BALKANS, 1995-1998: LESSONS LEARNED FOR JUDGE

ADVOCATES, pp. 53-55 (13 Nov. 1998).

388 See CENTER FOR LAW AND MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN CENTRAL AMERICA: HURRICANE MITCH RELIEF EFFORTS,

1998-1999  LESSONS LEARNED FOR JUDGE ADVOCATES (2000).

389 See DEPT OF ARMY, FIELD MANUAL 27-100, LEGAL SUPPORT TO OPERATIONS, sec. 4.2 Planning and Decision-Making (1 Mar. 2000) and CENTER

FOR LAW AND MILITARY OPERATIONS, RULES OF ENGAGEMENT (ROE) HANDBOOK FOR JUDGE ADVOCATES, Ch.1 (1 May 2000) (for detailed

descriptions of the Military Decision Making Process and the Judge Advocates role therein).

Chapter 28

CLAMO

501
NOTE: Sample Legal Annexes and other sample legal products may be found on several of CLAMOs databases, to

include the operations databases and the Sample Legal Products database. (See par. 2.C. above for instructions on

accessing the CLAMO databases.)

Chapter 28

CLAMO

502
Functional

Legal

Areas

Phases

of

Operation

Employment

of Force

Treatment of

NonCombatants

Staff

Integration

&

Coordination

Money

[Contract,

Fiscal &

Claims]

Force Admin

and Support

Force

Discipline

Mobilization &

Predeployment

ISB

Counter

Insurgency

Defend

Attack

Post Conflict

Figure 1. Legal Preparation of the Battlefield.

Chapter 28

CLAMO

503
Ch

apter 28

CLAMO

504
CHAPTER 29

INTERNET WEB SITES USEFUL FOR OPERATIONAL LAWYERS

Acquisition Deskbook Homepage http://www.deskbook.osd.mil

Agency for International Development. http://gaia.info.usaid.gov

Air Force

Material Command www.afmc.wpafb.af.mil

Publications http://www.af.mil/lib/pubs.html

Aerospace Power Journal http://www.airpower.maxwell.af.mil

Army

Acquisition http://acqnet.sarda.army.mil/

Homepage http://www.army.mil/

Material Command http://www.amc.army.mil

Regulations http://www.usapa.army.mil

Field Manuals/TNG Cir./ Graphic TNG aids http://www-cgsc.army.mil/

Associated Press http://www.ap.org

Association of the United States Army http://www.ausa.org/

Australian Defence http://www.adfa.oz.au/

Automated Historical Archives System http://leav-www.army.mil/

Battle Labs (TRADOC) http://battlelabs.monroe.army.mil/pam525/pam525.htm

Bosnia Link http://www.dtic.dla.mil/bosnia/

Brookings Institution http://www.brook.edu/

Cable News Network

http://www.cnn.com/

http://www.cnn.com/world (CNN World News)

http://www.cnn.com/weather/index.html (CNN Weather)

http://www.allpolitics.com/ (CNN/TIME AllPolitics)

Chapter 29

Web Sites

505
Center for Army Lessons Learned http://call.army.mil

Center for Defense Information http://www.cdi.org/

Center for Disaster Management & Humanitarian Assistance http://www.cdmha.org

Center for Nonproliferation Studies http://cns.miis.edu/

Center for Strategic and International Studies http://www.csis.org/

Center for Strategic Leadership http://carlisle-www.army.mil/usacsl/

Central Intelligence Agency http://www.cia.gov

Centre for Strategic Studies http://www.vuw.ac.nz/css/

China News Digest http://www.cnd.org

CNET http://www.cnet.com (a news and information service)

Coast Guard www.uscg.mil

Code of Federal Regulations http://www.gpo.gov OR www.law.cornell.edu/regs.html

College and University Home Pages http://www.mit.edu:8001/people/ cdemello/univ.html.

Combined Arms Research Library http://www-cgsc.army.mil/carl/

Comptroller General Decisions http://www.gao.gov/decisions

Conflict Studies Research Centre http://www.ppc.pims.org/

Congressional E-mail Directory http://www2.troa.org/elecmail3.html

Congress

www.senate.gov

http://www.house.gov

http://thomas.loc.gov/

Congressional Record http://www.access.gpo.gov/su_docs/

Country Studies (DoS) http://libfind.unl.edu:2020/alpha/department_of_State_country_studies.html

Court opinions

http://www.ca11.uscourts.gov/opinions.htm

http://www.law.emory.edu (includes decisions for 4th, 6th, and 11th Cir.)

http://www.law.vill.edu (includes decisions for 3rd & 9th Cir.)

Court of Appeals for the Armed Forces www.armfor.uscourts.gov

Chapter 29

Web Sites

506
Criminal Justice sites http://broadway.vera.org/

Defense Federal Acquisition Regulations (DFARS) www.dtic.mil/dfars See also Federal Acquisition Virtual Library,

infra. Also http://www.acq.osd.mil/dp/dars/dfars.html

Defense Financial Accounting System (DFAS) www.dfas.mil/

Defense Intelligence Agency http://www.dia.mil

Defense Link http://www.defenselink.mil

Defense Technical Information Web http://www.dtic.mil/dtiw/

Demining http://www.demining.brtrc.com

Department of Defense Directives and Instructions: http://web7.whs.osd.mil/corres.htm

Department of National Defence http://www.dnd.ca/

Department of Justice http://www.usdoj.gov

Department of State http://www.state.gov

Department of Treasury http://www.ustreas.gov

Early Bird http://www.militarycity.com

Embassies http://www.embassy.org

Environmental Protection Agency http://www.epa.gov

Europa http://europa.eu.int

European Line http://www.europeonline.com (provides latest info on events in Europe)

Executive Orders http://www.fas.org/irp/offdocs/direct.htm

Federal Acquisition Regulations http://www.arnet.gov/far (includes FAR Circulars)

Federal Acquisition Virtual Library http://www.arnet.gov/

Federal Bureau of Investigations (FBI) http://www.fbi.gov

Federal Communications Commission http://www.fcc.gov

Federal Emergency Management Agency (FEMA) http://www.fema.gov

Federal Register http://www.access.gpo.gov/index.html

FedWorld http://www.fedworld.gov/ - FedWorld (a one-stop location to locate/order USG documents)

Fletcher Forum http://fletcher.tufts.edu

Force XXI http://www.dfcc.army.mil

Chapter 29

Web Sites

507
Forces Command (FORSCOM) http:// www.forscom.army.mil/jag

Foreign Affairs http://www.foreignaffairs.org

Foreign Military Studies Office http://call.army.mil/fmso/fmso.htm

Foreign Policy http://www.enews.com

France Defense http://www.ensmp.fr/~scherer/adminet/min/def/

General Accounting Office http://www.gao.gov

GAO Comptroller General Decisions http://www.gao.gov/decisions

General Service Administration http://www.gsa.gov (contains over 1,400 site links)

German Information Center http://www.germany-info.org

Government Printing Office (GPO) Access http://www.access.gpo.gov/ OR http://gpo.lib.purdue.edu

Hoover Institution http://www-hoover.stanford.edu/

House National Security Committee http://www.house.gov/hasc/

House of Representatives http://www.house.gov/

Human Rights http://www.umn.edu/humanrts (Univ. Of Mn. Human Rights library)

Industrial College of the Armed Forces http://www.ndu.edu/ndu/icaf

Information Warfare http://www.infowar.com

Institute for National Strategic Studies http://www.ndu.edu/inss/insshp.html

Institute for the Advanced Study of Information Warfare http://www.psycom.net/iwar.1.html

IntelWeb http://intelweb.janes.com/

Intelligence Related links http://www.fas.org/irp/index.html

Internal Revenue Service (IRS) http://www.irs.ustreas.gov/

International Committee of the Red Cross http://www.icrc.org

International Court of Justice Opinions http://www.lawschool.cornell.edu/library/

International Criminal Tribunal For the Former Yugoslavia http://www.cij.org/

http://www.un.org/icty/

International Institute for Strategic Studies http://www.jaring,my/isis/publicat/publication

International Laws and Treaties

http://www.fletcher.tufts.edu/

Chapter 29

Web Sites

508
gopher://gopher.peachnet.edu (Eastern European Info)

http://www.jura.uni-sb.de (contains German & European codes)

International Security Network http://www.isn.ethz.ch

Jaffe Center for Strategic Studies http://www.tau.ac.il/jcss/

Janess Information Store http://www.janes.com/

Joint Chiefs of Staff http://www.dtic.mil/jcs

Joint Doctrine http://www.dtic.mil/doctrine

Joint Electric Library (JEL) http://www.dtic.mil/doctrine/jel/index.html

Joint Forces Quarterly http://www.dtic.mil/doctrine/jel/jfq_pubs/index.htm

Journal of Humanitarian Assistance http://www.jha.ac/

Joint Readiness Training Center http://www.jrtc-polk.army.mil

Judge Advocate General Corps (Army) http://www.jagcnet.army.mil

Justice Information Center (NCJRS) http://www.ncjrs.org

Legal Research

http://findlaw.com

http://www.lawcrawler.com

Legislative Information

http: http://thomas.loc.gov

http://www.law.cornell.edu/uscode (access to the U.S.C.)

Library of Congress http://www.loc.gov/

http://lcweb.loc.gov/homepage/lchp.html

http://thomas.loc.gov

MarineLink http://www.usmc.mil or http://www.hqmc.usmc.mil/

Marine Corps Judge Advocate Division Home Page http://www.hqmc.usmc.mil

Marshall Center http://www.marshallcenter.org

Military Spending Working Group http://www.fas.org/pub/gen/mswg/

Ministry of Defense (U.K.) http://www.mod.uk/

Ministry of Foreign Affairs http://www.nttls.co.jp

Chapter 29

Web Sites

509
Multilateral Treaties gopher://gopher.law.cornell.edu/

National Archives and Records Administration http://www.nara.gov

National Defense University http://www.ndu.edu/

National Public Radio http://www.npr.org/

National Security Agency http://www.fas.org/irp/nsa/nsaorgan.html

National Technical Information Service http://www.ntis.gov/

National War College http://www.ndu.edu/ndu/nwc/nwchp.html

NATO http://www.nato.int/

NavyOnLine http://www.ncts.navy.mil/

Naval Postgraduate School http://www.nps.navy.mil/

Net Surfer Digest http://www.netsurf.com/nsd

New York Times http://www.nytimes.com/

See also http://nytimesfax.com

OMRI (Open Media Research Institute) Daily Digest http://gort.ucsd.edu

Organization of American States http://www.oas.org/

Peacekeeping Institute http://carlisle-www.army.mil/usacsl/pki/pki.htm

Personnel Command (Army) http://www-perscom.army.mil

RAND Corporation http://www.rand.org/

Search tools http://www.lycos.com

http://www.go.com

http://www.excite.com

http://www.altavista.digital.com

http://www.yahoo.com

http://www.magellan.excite.com/

http://www.pointcom.com

Senate http://www.senate.gov

Senate Armed Services Committee http://www.senate.gov/~armed_services/

Smithsonian Institution http://www.si.edu

Chapter 29

Web Sites

510
Social Security Administration http://www.ssa.gov

Standards of Conduct http://www.dtic.mil/

Stockholm International Peace Research Institute (SIPRI) http://www.sipri.se/

Time Magazine http://www.time.com/time/

TRADOC http://www-tradoc.army.mil/

Treaties See United Nations

Unified Commands

http://www.acom.mil (JFCOM)

http://www.transcom.mil (TRANSCOM)

http://www.eucom.mil (EUCOM)

http://www.pacom.mil/ (PACOM)

http://www.southcom.mil/ (SOUTHCOM)

http://www.centcom.mil (CENTCOM)

http://www.spacecom.af.mil/usspace/ (SPACECOM)

http://www.socom.mil (SOCOM)

United Nations http://www.un.org/

http://www.un.org/depts/dhl/resguide/iltreat.htm#uhts (provides direct access to the UNs Treaty data base)

http://www.un.org/depts/dpko (UN PKOs)

United Nations Scholars Workstation http://www.library.yale.edu/un/

United States Agency for International Development http://www.info.usaid.gov

U.S. Army Command and General Staff College http://www-cgsc.army.mil

United States Code (U.S.C.)

http://www.law.cornell.edu.uscode/

uscode.house.gov/usc.htm

U.S. Congress (Thomas) http://thomas.loc.gov/

U.S. Government (General) http://www.fedworld.gov

United States Institute of Peace http://www.usip.org/

U.S. Information Agency http://www.usinfo.state.gov

Chapter 29

Web Sites

511
U.S. Marine Corps: www.usmc.mil

United States Military Academy http://www.usma.edu/

U.S. News & World Report http://www.usnews.com

U.S. Supreme Court Info http://www.uscourts.gov

USA Today http://www.usatoday.com/

Veterans Affairs http://www.va.gov

Virtual law library http://www.law.indiana.edu/v-lib/

Voice of America http://www.voa.gov/

Weather info http://www.nws.noaa.gov (Natl Weather Service)

http://cirrus.sprl.umich.edu/wxnet

Web Crawler http://webcrawler.com/

Wests Legal Directory http://www.lawoffice.com/

White House http://www.whitehouse.gov/

World News Connection http://wnc.fedworld.gov/

Yahoo WWW Server http://dir.yahoo.com/government/law/

Chapter 29

Web Sites

512
CHAPTER 30

MEDIA RELATIONS: DEALING WITH THE PRESS (PAO GUIDANCE)

REFERENCES

1. Joint Publication 3-61, Doctrine for Public Affairs in Joint Operations (14 May 1997)

(especially ch. 3 and app. A).

2. Dept of Def., Dir. 5122.5, Assistant Secretary of Defense for Public Affairs (ADS(PA)),

(27 Sep 00)

3. Dept of Def., Dir. 5040.4, Joint Combat Camera Program (9 Sep 96)

4. Dept of Def, Instr. 5405.3, Development of Proposed Public Affairs Guidance (PPAG)

(Apr. 1991).

5. Joint Warfighting Center, Joint Task Force Commanders Handbook for Peace

Operations, ch. 8 (June 1997).

INTRODUCTION

In May 1992, DoD and major news organizations reached agreement on guidelines that will apply to media coverage

of U.S. military forces engaged in armed conflict. The rules listed below have been endorsed by DoD and most major

news organizations, and will govern media coverage of future U.S. armed conflicts:

1. Open and independent reporting will be the principal means of coverage of U.S. military operations.

2. Press pools are not to serve as the standard means of covering U.S. military operations. Pools may sometimes

provide the only feasible means of early access to a military operation. Pools should be as large as possible and

disbanded at the earliest opportunity (within 24 to 36 hours when possible). The arrival of early access pools will not

cancel the principle of independent coverage for journalists already in the area.

3. Even under conditions of open coverage, pools may be appropriate for specific events, such as those at extremely

remote locations or where space is limited.

4. Journalists in a combat zone will be given credentials by the U.S. military and will be required to abide by a

clear set of military security ground rules that protect U.S. forces and their operations. Violation of the ground rules can

result in suspension of credentials and expulsion of the journalist involved from the combat zone. News organizations

will make their best efforts to assign experienced journalists to combat operations and to make them familiar with U.S.

military operations.

5. Journalists will be provided access to all major military units. Special operations restrictions may limit access in

some cases.

6. Military public affairs officers should act as liaisons but should not interfere with the reporting process.

7. Under conditions of open coverage, field commanders should be instructed to permit journalists to ride on

military vehicles and aircraft whenever feasible. The military will be responsible for the transportation of pools.

8. Consistent with its capabilities, the military will supply PAOs with facilities to enable timely, secure, compatible

transmission of pool material and will make these facilities available whenever possible for filing independent coverage.

In cases when government facilities are unavailable, journalists will, as always, file by any other means available. The

military will not ban communications systems operated by news organizations, but electromagnetic operational security in

battlefield situations may require limited restrictions on the use of such systems.

Chapter 30

Media Relations

513
9. These principles will apply as well to the operations of the standing Department of Defense National Media Pool

system.

Judge Advocates providing advice on media restrictions should read Nation Magazine v. U.S. Department of Defense, 762

F. Supp. 1558 (S.D.N.Y. 1991).

PUBLIC AFFAIRS OFFICE (PAO) GUIDANCE

Following is a guide for those times when you, or someone you advise, must or should talk with the press. You must

always work through the PAO, as well as notify, and get approval from, your boss before talking to the press.390 Once

approval has been granted, use the pointers below in talking to the media.

Why Talk To The Media?

Organizations work a long time to achieve a reputation for a reliable product, a good service, and stability. It does

this by delivering the same over and over again. That reputation is a fragile commodity for it can be destroyed by a single

mishap. One bad news item is remembered forever, while 100 good news items seem to be forgotten.

Though it may seem unfair at times, our society cherishes the freedom of the press that encourages headline news.

That is, the press will print whatever news it can find by deadline, and if an edge can be put on the information to create a

stir, all the better. This selling of the newsas opposed to reporting the newsresults in biased articles. If only one

side of a story is available, that is what is printed. The No comment gambit will not sit well with the viewing public

(though it may be appropriate in limited cases).

Management training stresses positive action as the best way out of a dilemma, and the media is your primary

channel to the American people. As a leader in the military, you are responsible for the management of Defense dollars

and, more importantly, of American youth. Americans pay for the military and send their sons and daughters to fill its

ranks. They own the military and are entitled to know the how and why it operates.

Men and women of the media are competent professionals as dedicated to their profession as you are to yours. They

oftentimes have no prior military association; however, they will usually work hard to gather the facts and present an

accurate story. Treat them with the respect you expect and never underrate their capability to gather information. They

can be tenacious and may have sources of information not available to you.

Your command or agency has an important story to tell to the American people who support your activities. Your

soldiers and employees and their activities are news to both local and national audiences. You are the most believable

spokesman to represent them. Preparation and practice on your part will result in newsworthy, informative articles and

programs that may be seen by millions of viewers and readers.

Preparing to Meet the Media

What you do before you meet the media is as important as what you do when you meet them. Often, it is the

preparatory activities that will determine the success or failure of your media interview. By being prepared, you will not

only be more confident and comfortable, but you will also be able to get your story across to the audience.

Some preparatory suggestions:

- Find out who the reporter is.

390 TJAG Policy Memo 91-2 to SJAs states, "Generally, no member of your office should, without your approval, prepare a written statement for

publication or permit himself or herself to be quoted by the media on official matters within the purview of your office. Similarly, unless first cleared

through the Executive, neither you nor any member of your office should be interviewed by, or provide statements to, representatives of the media on

issues or subjects having Army-wide, national or international implications."

Chapter 30

Media Relations

514
- Find out why you were asked for the interview.

- Establish ground rules on what will be covered.

- Set how much time will be allowed for the interview.

- Anticipate questions and think through your responses.

- Do your homework. (Make certain you are familiar with the facts supporting your position and that theyre upto-date. Even if youre the expert, a quick brush-up will help.

- Know the key points you want to make. (You might want to type them up on a card and put the card in a

prominent place on your desk. Before the interview, review them often. Are they honest, meaningful and to the point?)

- Dont memorize a statement! (Youll look stilted/pompous).

- Question your own position. Have your PAO or other staff experts play devils advocate. If possible, practice

your responses before a television camera and view the play back with members of your staff to conduct a critique. Do

not be thin skinnedit is better to correct errors before friends than commit them before 1.5 million viewers.

- Read the morning paper and listen to the radio/TV before your interview in case a late-breaking news story

affects your command.

The Five and Five Rule

The Five and Five Rule is Know the five best and worst things about your agencyand be able to discuss them in

detail any time. Stay currenthave your staff keep you up-to-date. Practice answering a question about a bad news

subject and transition to a good news subject.

Specific suggestions if youre going on the air:

- Know the format and theme of the show. Know who will be in the audiencedo they let reporters sit in the

audience and ask questions? Who is the viewer audience? It may be helpful to watch the show several times.

- Arrive early to check the setting and your appearance.

- When you arrive, talk to the hosts or questioners. Offer subjects or points youd like to discuss. Ask them what

theyll be covering.

Youre on!

This is your chance to tell your story accurately and forcefully. Many people are intimidated by all the blinding lights

and the ominous, expressionless, one-eyed cameras staring directly at them. Theres no need for anxiety. Think of the

cameras and the microphones as your friends, and imagine that you are visiting friends in their living room because thats

where you will be seen or heardon the television set in someones living room or on a car radio. If youve prepared

well, all you will have to do is take advantage of a few techniques that will help you come across to the audience in a

forceful yet friendly way.

First, your appearance:

- Check your appearance. (Be vain. Have yourself inspected. Remember, youre representing the entire military.)

- Ask for makeup to help control perspiration and to avoid glare from the lights. (If you have a heavy beard, shave

before you go).

Chapter 30

Media Relations

515
- Dont wear sunglasses outdoors, or tinted glasses indoors.

- If seated, keep your jacket buttoned. To remove wrinkles in the front, pull the jacket down in the rear.

If youre in civilian clothes:

- Men should wear medium-tone gray, blue or brown suits. Women should wear solid, medium-color dresses.

Avoid very light or very dark dresses (conservative street-length dresses or pantsuits are preferred). Never wear bold

prints or patterns.

- Wear light-color shirts. However, avoid whites, since it is difficult for the technical crew to adjust contrasts.

- Avoid bow ties. They have a tendency to bob when you are talking.

- Wear over-the-calf socks. (That way, if you cross your legs, your shins wont outshine your shoes.)

- Keep jewelry simple. (That sparkling ring may look terrific at a dinner party, but on television its going to

detract). Military brass may be coated with soap to prevent glare.

Second, your action. (Or, what do I do with my hands?):

- In stand-up interviews, stand straight. (Dont lean into the microphone and dont rock back and forth). You may

want to place one foot slightly forward of the other. This will help you keep from rocking or shifting back and forth.

- Hands should be relaxed at your side at the beginning of the interview. However, if you are comfortable, use

them when talking. Effective use of hands is natural and provides action and emphasis.

- When seated, sit with the base of the spine back on the chair and lean slightly forward. Place your hands well

forward on the arms of the chair or your knees. Dont put them in your lap.

- Warmth, friendliness and sincerity are important to the interview. Key tools are smiles, gestures and pauses, at

appropriate times. But dont smile at serious matters or out of discomfort. Remember to keep an open face.

- Dont adopt the questioners attitude, even on hostile questions. (Remember, the viewer/listener at home may be

on your side.)

- Dont distract your home audience. (Dont pull up your socks, fiddle with your ring, or look at your watch

hoping youve almost finished).

- Concentrate on the interviewer, and listen! (Avoid looking around the room: It will give you the darting eye

look of a sinister villain). Look the interviewer in the face and use her/his name if possible.

- Keep your head up so you wont look guilty. It lets the light onto your face and prevents deep shadows around

the eyes. (This is especially important if you wear military glasses: If the audience cant see your eyes, they may not trust

you!)

- Keep your hands off the mike. Ignore the mike and volumethats what the sound technician is paid to do.

- If you have a real physical reason for preferring one profile or side (e.g. a hearing problem), make this known to

the program staff.

- If possible, dont sit between two questioners. (Its not an inquisition, and your shifting head will make you feel

and look guilty.)

- Be yourself! Concentrate on how to get ideas acrossnot just words.

Chapter 30

Media Relations

516
Third, how do I say what I want to say?

- Welcome the reporter and the questions. Take the attitude that the reporter is your conduit to your audience and

they are interested in what you have to say.

- Be relaxed, confident; you are the expert.

- Avoid jargon, acronyms and technical terms.

- Phrase your responses with the public in mind rather than bringing out how the military benefited from a

decision or action.

- Phrase your answers in terms and experiences your audience will relate to. Talk as though you were talking to

your mother or father.

- Minimize the use of we; whenever possible, use I.

- Keep your answers short! Give your headline first and then support your answers. Make the interviewer keep

the conversation going, but dont just give a yes or no. If you have answered the question, stop talking. Just because

the reporter leaves the mike up doesnt mean you have to talkthats what he gets paid to do. Otherwise, you may talk

through your answer and wander into dangerous ground.

- Above all, be positive in your answers!

- Use pitch and rate changes for variety.

- Build in a cut-off with your answer if you wish to drop the topic.

- Dont be curt (even in response to the dumbest question).

- Dont restate the question in total or begin with gratuitous remarks such as, Im glad you asked that.

Sometimes, however, you may wish to partially restate the question just to clarify what you are answering. Also you may

restate the question if the audience does not hear the question.

- Pause before you speak. Take a second or two to think about your answer. Not only do rapid responses appear

rehearsed, but many officials wish they had thought about an answer before answering. In electronic journalism, the

pauses will be edited out and print reporters dont care.

- Answer only one question at a time. (If there are multiple questions, answer the one you want to answer and

then ask what the other questions were).

- Use your key points when you have a chance. You can use one question as a springboard to your points by

building on your answer. Remember the Five and Five rule.

- If youre not sure of the facts, say so in you response and promise to get them. (Then be sure to follow up).

- If you dont know the answer or cant discuss it for any reason, say so. If its classified, dont get into a verbal

fencing match; say its classified. Never give a no comment response.

- Discuss only those activities and policies within the purview of your command or area of responsibility. Dont

discuss hypothetical situations. Dont speculate.

- Dont be defensive-take the opportunity and use it to your benefit.

Chapter 30

Media Relations

517
- Dont repeat a reporters terminology or accept his facts and figures as truth unless you know theyre accurate.

Dont let reporters put words in your mouth or ideas in the minds of the audience.

- If its a pretaped or print interview, be careful of off-the-record comments. Anything you say may be used

and probably will be. Never go off the record with a reporter you dont know.

- Always assume the tape is rolling and the microphone is on! (Even during breaks, commercials, etc.).

- If youre confronted with a news conference or a multitude of reporters on a noisy street, dont shout. Television

is an intimate medium and, although you may reach millions of people, you are really talking to groups of two to three in

their living rooms.

- Never lie to a reporter. Not only could you get yourself in trouble, you may lessen the credibility of the whole

Army.

- Have your PAO sit in on the interview and, if possible, tape it. This is a technique which news media

representatives consider professional and which serves a very useful purpose: It provides an accurate record and protects

you from being quoted out of context.

After Its All Over

- Dont demand to see the show or article in advance publication. You can ask, but they arent under any

obligation. If you demand, they may not give it to you and you may hurt your credibility and the chances of a favorable

piece.

- Provide anything you promised youd get back to them with.

- Be available for follow-up. Reporters often will have points they may want clarified or need additional

information on.

- Have your staff available for corroboration and follow-up.

- Clarify any points you think may have been misunderstood, and provide additional information you think may be

needed.

- Actively seek other opportunities to tell the militarys story.

A Media Survival Guide

Rear Admiral Brent Baker, the Navys Chief of Information, offers nine recommendations for getting information out

to the media accurately and without compromising security:

1. Generally, it is in the institutions best interest to deal honestly and in a timely manner with the media. If

you do not play, you surrender to your critics who will be eagerly at hand.

2. Understand the medias obsession with speed, and through daily contact, keep working to win the battle of

the first media perception.

3. Leaders must learn to take time to articulate their positions to the media. They must use short, simple

language that the media will use and the public will understand.

4. Use the media to inform the public proactively, not just to react to critics.

5. Understand that the news is almost always skewed towards the side of those willing to talk to the media, and

against those who say, No comment.

Chapter 30

Media Relations

518
6. Remember that CNN will correct the television record, while other networks rarely will do that because of

time constraints.

7. Realize that there are reporters who do want to be accurate and have balanced stories. Too often editors or

television producers get in the way and interject the political or budget spin on an otherwise positive story about our

people. Getting reporters out to the fleet, field, or factory floor is a beginning.

8. Play the media game. Understand there are times for a low profile, but more often, a media opportunity to

tell your story should not be lost because of fear. We need to tell people, through the media, what we are about.

9. Dont be thin-skinned. We will not win every media engagement, but we must continue to communicate to

our own people and to the public.

Summary

The best and easiest way to be relaxed when talking to the media or to a group of people is to do so, often. Generals

who have spent their lives talking before hundreds and thousands of troops often clam up when confronted by the

camera, lights, action of television or by a hostile group of reporters. Theres no need to be defensive. They are our

conduits to the American public.

Your PAO can give you the best advice before, during and after an interview. As soon as youve been asked for an

interview, bring your PAO into the action. PAOs know the media and the news business and can give you sound advice

on what you should and should not do. If you go into the interview or speaking engagement with a positive attitude, and

really care about your points, youll do fine. Remember, were talking about our organization and our soldiers and we

have a terrific story to tell. Lets tell it.

As a quick recap, remember these points:

- Preparedont wing it.

- Conversationaltreat the mike and the interviewer as friends.

- Concentrateforget yourself and concentrate on the questions and on your key ideas.

- Controlknow the key points you want to make, and answer questions on your own terms, in your own way.

Use the five and five rule.

- Confidenceyoure the expert and you know what youre doing.

- Comfortablerelax and enjoy it. Forget about your hands and the mike and camera, and be natural.

- Conciseget your points across directly, quickly, and in language the audience will understand.

- Care-care about the Army, the audience, the interview, and your subject. If you dont, neither will anyone else.

- Relax. Be Honest. Be Sincere.

- Keep an open face.

Chapter 30

Media Relations

519
APPENDIX

JOINT PUB 3-61, (May 1997)

GUIDELINES FOR DISCUSSIONS WITH THE MEDIA

1. Preparation results in effective discussions with the news media. Central to the process is the effort to identify what

information will be released based on prevailing public affairs guidance and operations security. Commanders, briefers,

and public affairs personnel should be aware of the basic facts of any operation and sensitive to the various consequences

of communicating them to the public.

2. Security at the source serves as the basis for ensuring that no information is released which jeopardizes operations

security or the safety and privacy of joint military forces. Under this concept, individuals meeting with journalists are

responsible for ensuring that no classified or sensitive information is revealed. This guidance also applies to

photographers, who should be directed not to take pictures of classified areas or equipment or in any way to compromise

sensitive information.

3. Each operational situation will require a deliberate public affairs assessment in order to identify specific information

to be released. The following categories of information are usually releasable, though individual situations may require

modifications:

a. The arrival of U.S. units in the commanders area of responsibility once officially announced by the Department

of Defense or by other commands in accordance with release authority granted by the Office of the ASD(PA).

Information could include mode of travel, sea or air, date of departure and home station or port.

b. Approximate friendly force strength and equipment figures.

c. Approximate friendly casualty and prisoner of war figures by Service. Approximate figures of enemy personnel

detained during each action or operation.

d. Non-sensitive, unclassified information regarding U.S. air, ground, sea, space, and special operations, past and

present.

e. In general terms, identification and location of military targets and objectives previously attacked and the types

of ordnance expended.

f. Date, time, or location of previous conventional military missions and actions as well as mission results.

g. Number of combat air patrol or reconnaissance missions and/or sorties flown in the operational area. Generic

description of origin of air operations, such as land or carrier-based.

h. Weather and climate conditions.

i. If appropriate, allied participation by type (ground units, ships, and aircraft).

j. Conventional operations unclassified code-names.

k. Names and hometowns of U.S. military personnel.

l. Names of installations and assigned units.

m. Size of friendly force participating in an action or operation using general terms such as multi-battalion, or

naval task force.

Chapter 30, Appendix

Media Relations

520
n. Types of forces involved (e.g., aircraft, ships, carrier battle groups, tank and infantry units).

4. Classified aspects of equipment, procedures, and operations must be protected from disclosure to the media. In more

general terms, information in the following categories of information should not be revealed because of potential jeopardy

to future operations, the risk to human life, possible violation of host nation and/or allied sensitivities, or the possible

disclosure of intelligence methods and sources. While these guidelines serve to guide military personnel who talk with the

media, they may also be used as ground rules for media coverage. The list is not necessarily complete and should be

adapted to each operational situation.

a. For U.S. (or allied) units, specific numerical information on troop strength, aircraft, weapons systems, on-hand

equipment, or supplies available for support of combat units. General terms should be used to describe units, equipment

and/or supplies.

b. Any information that reveals details of future plans, operations, or strikes, including postponed or canceled

operations.

c. Information and imagery that would reveal the specific location of military forces or show the level of security at

military installations or encampments. For date lines, stories will state that the report originates from general regions

unless a specific country has acknowledged its participation.

d. Rules of engagement.

e. Information on intelligence activities, including sources and methods, lists of targets and battle damage

assessments.

f. During an operation, specific information on friendly force troop movement or size, tactical deployments, and

dispositions that would jeopardize operations security or lives. This would include unit designations and names of

operations until released by the JFC.

g. Identification of mission aircraft points of origin, other than as land or carrier-based.

h. Information on the effectiveness or ineffectiveness of weapon systems and tactics (to include, but not limited to

enemy camouflage, cover, deception, targeting, direct and indirect fire, intelligence collection, or security measures).

i. Specific identifying information on missing or downed aircraft or ships while search and rescue operations are

planned or underway.

j. Special operations forces unique methods, equipment, or tactics which, if disclosed, would cause serious harm

to the ability of these forces to accomplish their mission.

k. Information on operational or support vulnerabilities that could be used against U.S. or allied units until that

information no longer provides tactical advantage to the enemy and is therefore released by the joint commander.

Damage and casualties may be described as light, moderate, or heavy.

l. Specific operating methods and tactics (e.g., offensive and defensive tactics or speed and formations). General terms

such as low or fast may be used.

Chapter 30, Appendix

Media Relations

521
Ch

apter 30,Appendix

Media Relations

522
CHAPTER 31

CHECKLISTS

INTERNATIONAL LAW

PREPARATION AND PREDEPLOYMENT

__ Determine the legal basis for the military action. Obtain copies of all relevant authorizing documents (i.e.,

UNSC Resolutions, Executive Orders).

__ Obtain copies of all Status of Forces and Supplementary Agreements, with maps of countries, where deployment

is likely; for classified agreements and Country Law Studies, contact higher HQ, the Unified Command (i.e.,

SOUTHCOM, CENTCOM, etc.), or OTJAG (International/Operational Law Div).

__ Determine if any international agreements need to be negotiated prior to deployment of U.S. Forces.

__ Regularly review operations and contingency plans. Review the actual OPLAN/OPORDER for potential

problems. If it has been previously reviewed, look for changes and focus on the mission statement, assumptions,

and ROE.

__ Ensure regular and thorough training in the law of war, Rules of Engagement (ROE) (to include STX lane

training), and Code of Conduct is provided to commanders and soldiers.

__ Include law of war, ROE, and operational law problems in exercises. See AR 350-41. Submit judge advocate

portions of upcoming exercise play on time (and ensure they are keyed to the master scenario plan). The Master

Scenario Events Lists (MSELs) are usually the way exercise play is keyed to the master plan and are usually

submitted 6 months before the exercise.

__ Determine whether deploying judge advocates will be assisted by Reserve Component support, (e.g., JAGSO

Teams) in the area of deployment or Individual Mobilization Augmentees (IMAs) at Home Station. If JAGSO

teams are deploying, ensure that this fact is included in the operations order.

__ Determine potential legal problems in the countries of probable deployment (e.g., unique religious laws that

would affect U.S. personnel, limitations on the use of military vehicles in country, unique customs or currency

laws, and any significant terrorist threats).

__ Consider solving recurring issues such as war trophies, ROE, requisitioning of property, contracting, etc. by

working them into SOPs, exercises, etc.

__ Coordinate with the G-5/Civil Affairs office to determine the existence and terms of any Civil Affairs

Agreement with the Host Nation (HN).

DURING COMBAT DEPLOYMENT

__ Establish contact and become the liaison between the International Committee of the Red Cross (ICRC) and the

command. Attempt to determine the identities of the ICRC representatives and whether they have been

approved by the State Department prior to their arrival. Once they arrive, identification information concerning

the ICRC representatives should be forwarded to the next higher SJA office for verification of authenticity.

Chapter 31

Checklists - International Law

523
__ Coordinate with provost marshal (PM) and logistics personnel to ensure that provisions have been made for

EPWs, to include security, housing, food, religious needs, barbed wire, transfer from other U.S. military services

or allies, medical attention, interpreters, separate accommodations for females, if any, and reporting to the ICRC.

__ Ensure arrangements have been made to recover the enemys dead when the combat situation permits. Attempts

should be made to identify the bodies. This information should be given to the ICRC. If the situation permits,

these bodies should be returned to the enemy. Alternatively, the bodies should be promptly buried in a dignified

manner, the graves marked and recorded, and this information provided to the ICRC.

__ Ensure that all combat incidents (e.g., inadvertent bombing of a protected place) and allegations of war crimes

(by either side) are promptly reported and investigated. This is a command responsibility. It is absolutely

imperative that the evidence be preserved immediately. If necessary, a judge advocate should conduct the

preliminary investigation.

__ Coordinate with other U.S. representatives in country, such as the State Department. Be prepared for sustained

involvement with representatives from U.S. Agency for International Development (USAID) and State

Department, including Embassy personnel.

__ Assure close and continuous coordination with the G-5/Civil Affairs office.

__ Have guidance prepared for the command concerning War Trophies. Guidance on War Trophies must be

included in any General Order Number 1. If the potential exists for troops to obtain war trophies, publish

guidance rapidly! Advise troops of the law concerning theft of private property (Art. 121, UCMJ) and the

retention of enemy public property captured on the battlefield (Art. 103, UCMJ). They should also be briefed

concerning the category of items that they may request as souvenirs.

__ Review and coordinate psychological operations and intelligence collection plans/activities.

__ Establish channels for reporting law of war violations and coordinate with the PM to ensure that credible

allegations are investigated. Coordinate with the military justice section and/or claims section to employ court

reporters and interpreters to record witness testimony or other statements of witnesses in the country of

deployment. Be prepared to use SJA office assets to investigate allegations of law of war violations.

__ Ensure that, in accordance with the OPLAN/OPORDER and ROE, protected targets, such as churches, hospitals,

or charitable, cultural, or historical facilities, are not targeted or bombarded, unless they are being used for a

military purpose. If a protected place is being used by the enemy for a military purpose, such use should be

documented. Hospitals being misused by the enemy should be warned, unless time does not permit and delay

would jeopardize the mission. In all cases of misuse of protected places, incidental/collateral damage should be

kept to a minimum.

__ Determine if war crimes trials will be conducted within the area of deployment. If trials will be held, jurisdiction

over EPWs for pre-capture offenses may be established through Art. 18 or Art. 21, UCMJ. For post-capture

offenses, PWs will be tried under the same rules and procedures applicable to U.S. soldiers (Art. 2, UCMJ,

applies). Always check with the next higher legal office regarding war crimes trials, as the decision to prosecute

has significant political implications.

__ If an occupation is anticipated, coordinate with the G-5/Civil Affairs office in order to review potential legal

issues (i.e., occupation ordinances, occupation courts, etc.).

__ Be prepared to advise command on seizure & requisition of government & private property.

__ As the hostilities stabilize and the combat phase ends, coordinate with the PM and the ICRC to arrange

repatriation of PWs.

Chapter 31

Checklists - International Law

524
MOOTW OR POST-COMBAT

__ Coordinate with the G-1 and PM concerning the preparation and issuance of special ID cards in the local

language. (Useful in a permissive environment for local police assistance purposes.)

__ In a permissive environment in which U.S. forces are assisting in the stabilization phase, ensure that the HN has

granted authority to U.S. MPs forces to apprehend or arrest local nationals. This will normally be accomplished

through an ordinance or executive proclamation.

__ Coordinate with the judge advocate (and/or Country Civil Affairs Team) of the major theater

component/supporting command to arrange HN liaison for soldiers detained by the HN. Negotiation

responsibility is normally assigned to the SJA for one of the major component commands in theater. If there is a

SOFA, it will usually specify the liaison authority.

__ In a permissive environment, coordinate with HN national police authorities concerning the status of the U.S.

force in country. Ensure members of the HN police force understand the status of U.S. nationals.

__ As the hostilities stabilize and the combat phase ends, coordinate with the PM and the ICRC to arrange

repatriation of PWs.

INTERNATIONAL AND OPERATIONAL LAW REFERENCES

All OPLAW Doctrine References listed in Chapter 2, this Handbook.

AF Pam 110-20, Selected International Agreements.

AR 27-14, Selected International Agreements (Vol II).

AR 27-50/SECNAVINST 5820.4G, Status of Forces Policies, Procedures, and Information.

AR 190-8, PW Employment.

AR 190-41, Customs Law Enforcement.

AR 190-XX (1996), War Trophies

AR 350-30, Code of Conduct Training.

DA Pam 27-1, Treaties Governing Law Warfare.

DA Pam 27-1-1, Protocols to the Geneva Conventions of 12 Aug 1949.

DA Pam 27-24, Selected International Agreements, Vol. II.

DA Pam 27-161-1, The Law of Peace, Vol. I.

DA Pam 27-161-2, International Law, Vol. II.

DoD Dir. 2000.11, Political Asylum and Temporary Refuge

DoD Dir. 5030.49, Customs

FM 27-2, Your Conduct in Combat Under the Law of War (formerly TC 27-1).

Chapter 31

Checklists - International Law

525
FM 27-10, The Law of Land Warfare with change 1 (if you can only take one LOW document, this is it!)

FM 41-5, Joint Manual for Civil Affairs

FM 41-10, Civil Affairs.

NWP 1-14M, The Commanders Handbook on the Law of Naval Operations and Annotated Supplement.

Manual for Courts-Martial, 1984 (1998 Edition).

MCO 3460.1A, Training and Education Measures Necessary to Support the Code of Conduct.

TC 27-10-1, Selected Problems in the Law of War.

TC 27-10-2, Prisoners of War.

TC 27-101-3, Instructors Guide to The Law of War.

TJAGSA Law of War Deskbook (1998).

TJAGSA Intelligence Law Deskbook (1998).

TJAGSA Operational Law Materials (1997).

CHECKLIST FOR COMPLIANCE WITH THE LAW OF WAR

This law of war (LOW) checklist is an instructional device to demonstrate the vast range of LOW and related issues

that arise during the operational staff planning process. Some of the issues raised obviously will not concern staff officers

at the small unit level, others are of universal import and require close attention at all levels, and some would be

considered only by the National Command Authorities. The Headquarters Marine Corps Law of War Reserve

Augmentation Unit (TDE) prepared the checklist. The checklist has been prepared to assist staff officers and

commanders in the development and review of operation plans (OPLANs) and concept plans (CONPLANs). Since these

plans are an essential link between the Commanders decision and the initiation of military action, it is important that all

plans ensure that U.S. responsibilities under domestic and international law are properly discharged. DoD Directive

5100.77 requires C JCS and the commanders of unified and specified commands to ensure that ROE conform to the

LOW. CJCSI 5810.01 requires periodic review of joint documents for consistency with the LOW. Paragraphs 4(c) and

5(b) (5) of Secretary of the Navy Instruction 3300.1A require review of all plans, orders, directives and ROE for

conformity with the LOW. Periodic review of operation and concept plans to assure consistency with the LOW is

required by para. 10(g) of Marine Corps Order 3300.3, by para. 4(b) (2) of Chief of Naval Operations Instruction 3300.52,

and by paragraphs 3(i) and 9 of AF Reg. 110-32.

This checklist assumes, without further emphasis, that all regular members of the force to be deployed (1) are

equipped with the ID tags and cards required by the 1949 Geneva Conventions; and (2) have received the required

accession level LOW training and the additional training required for commanders and those filling billets requiring

specialized LOW training. It further assumes that all non-nuclear weapons to be employed by the force have been

reviewed for compliance with the LOW in accordance with DoD Instruction 5000.1. The checklist does not cover normal

military law or UCMJ questions except as they might interact with or are affected by the LOW. The Appendix has a list

of the abbreviations used in the checklist with the full titles of the references spelled out. Also included in the Appendix

are certain treaties and directives, which, while not referred to in this checklist, have possible LOW application to the

preparation and review of OPLANs and CONPLANs. An asterisk identifies the latter documents (*).

___ Is Art 2 or 3 applicable to the situation?

Chapter 31

Checklists - International Law

526
___ Have partners and opponents ratified Protocol I and II?

ANNEXES

ANNEX A - TASK ORGANIZATION

Appendix 1 - Time-phased force and deployment list (TPFDL).

Does the task organization include civilians or other non-military personnel accompanying the force in the field (arts. 3

and 13 of Hague IV, arts. 13 of GWS and GWS(Sea), and art. 4 of GPW)? If so:

___ Are they equipped with the proper identification provided for such individuals (see, e.g., art. 40 of GWS, art.

4(A) (4) and Annex IV(A) of GPW, and DoD Instruction 1000.1, ID Cards Required by the Gen. Convention)?

___ Have they been instructed in their rights, duties and obligations under the LOW?

Does the task organization include personnel of the American Red Cross Society or other U.S. voluntary aid societies

assigned exclusively to medical and medical support duties (arts. 24 and 26 of GWS)?:

___ Are they subject to U.S. military laws and regulations?

___ Has their intended assistance been notified to the enemy?

___ Have they been instructed in their rights, duties and obligations under the LOW?

___ Do they have ID cards required by art. 40 of GWS?

Does the task organization include personnel of a recognized national Red Cross society or other voluntary aid societies

of a neutral country (art. 27 of GWS)? If so:

___ Are they present with U.S. authorization and the previous consent of their own government?

___ Are they under official U.S. control?

___ Has their intended assistance been notified to the enemy?

___ Have they been instructed in their rights, duties and obligations under the LOW?

___ Have they been furnished the ID cards required by art. 40 of GWS?

Are the medical and religious personnel of the force (art. 24 of GWS) equipped with the protective identification provided

for such individuals (art. 40 and Annex II of GWS and art. 42 and the Annex to GWS(Sea))? Are these personnel:

___ Assigned exclusively to medical or religious duties or to the administration of medical or religious

organizations?

___ Trained in the special rights, duties and obligations of such personnel under the LOW?

___ In possession of the protective ID card (and has a model of this card for such personnel been communicated to

the enemy as required by art. 40 of GWS)?

___ Are auxiliary medical personnel of the force (art. 25 of GWS) equipped with protective emblems (see art. 41 of

GWS) and with military ID documents specified by that art.?

Does the task organization include personnel of the American Red Cross Society whose duties are not exclusively

medical or medical support? If so:

Chapter 31

Checklists - International Law

527
___ Are they aware of the restrictions on their use of the Red Cross emblem contained in art. 44 of GWS?

___ Are there any theater-specific LOW training requirements or ROE for the area?

ANNEX B - INTELLIGENCE

Appendix 1 - Essential Elements of Information

Should the plan call for:

___ collection of information about enemys policies, attitudes and practices concerning compliance with LOW?

___ collection of information about allied policies, attitudes and practices concerning compliance with LOW?

___ collection of information about enemy and allied protective emblems and insignia?

___ locating enemy PW camps?

___ locating civilian and military hospitals or other medical installations?

___ locating civilian concentrations, including refugee camps?

___ locating civilian artistic, scientific or cultural institutions within the contemplated area of operations?

Appendix 2 - Signals Intelligence

___ Is plan consistent with the prohibition against the presence or use of cryptographic equipment aboard hospital ships

supporting the U.S. forces, as required by art. 34 of GWS(Sea)?

___ Are signals intelligence personnel aware of the prohibition on the enemys use of cryptographic equipment and

encrypted communications on hospital ships?

Appendix 3 - Counterintelligence

___ Is plan consistent with prohibition on assassination contained in art. 23(b) of Hague IV and para. 2.11 of Exec Order

12333? (NOTE: Lawful targets and combatants may be attacked whenever and wherever found.)

___ Does plan provide guidance on the processing of captured enemy agents and spies consistent with art. 29 of Hague

IV and para. 75 to 78 of FM 27-10?

___ Does plan comply with IL concerning the arrest, detention or expulsion of HN or third country nationals (GC

generally)?

Appendix 4 - Target List/Target Intelligence

___ Are any potential targets restricted or prohibited because of an erroneous interpretation of the requirements of the

LOW? If so, they should be promptly identified to the issuing authority. (NOTE: Lawful targets and combatants may be

attacked whenever and wherever found.)

___ Is target list consistent with IL governing attack of defended places only (paragraphs 39 and 40 of, and Chg I to, FM

27-10 and arts. 25 and 26 of Hague IV)?

___ If plan contemplates bombardment of a defended place containing civilians, does plan provide for the appropriate

(i.e., either specific or general) warning (para. 43 of FM 27-10 and art. 26 of Hague IV)?

Chapter 31

Checklists - International Law

528
___ Is the target list consistent with restrictions on intentional attack of buildings dedicated to religion, art, science, or

charitable purposes, historic monuments, hospitals, hospital zones, safety zones, and places where the sick and wounded

are collected (paragraphs 45 and 57 of FM 27-10 and provisions of Hague IV, Hague IX, GC, GWS, GWS(Sea), the

Roerich Pact and the Hague Cultural Property Convention)?

___ If plan contemplates the attack of any buildings or zones described in the preceding para. on the grounds that the

buildings or zones are being used for military purposes, does plan require the prior authorization of a sufficiently

responsible level of command?

___ Does the target list reference or identify appropriate protective symbols (art. 27 of Hague IV, art. V of Hague IX,

arts. 23 and 38 and Annex I of GWS, arts. 36, 38 and 40-44 of GWS(Sea), art. 23 of GPW, arts. 14 and 83 and Annex I of

GC, arts. I and III of the Roerich Pact, and arts. 6 and 16-17 of the Hague Cultural Property Convention)?

___ Does plan identify the requirement for warnings and the appropriate level of authorizing authority where protective

emblems and areas are abused by the enemy (art. 26 of Hague IV, art. 21 of GWS, art. 34 of GWS(Sea), and art. 11 of the

Hague Cultural Property Convention)?

___ Is plan consistent with the right of self-defense where protected emblems and areas are misused against our forces?

Appendix 5 - Human Source Intelligence

___ Has the right of members of the force to PW status if captured been considered in determining whether modifications

to or elimination of their uniforms, or other ruses, will be permitted (arts. 23, 24 and 29 of Hague IV and art. 4 of GPW)?

___ Does the plan include instructions to insure proper treatment of PWs during interrogation? In particular:

___ Is plan consistent with the prohibitions against the killing, torture or mistreatment of PWs effective from the time of

their surrender (paragraphs 28, 29, 84 and 85 of PM 27-10 and the provisions of GPW and Hague IV cited therein)?

___ Does the plan recognize limitations on the interrogation of PWs including the requirement that they be interrogated

in a language they understand (art. 17 of GPW)?

___ Does the plan provide a procedure for inventorying and safeguarding PW personal property?

___ Does the plan provide guidance on disposition of captured enemy armaments including limitations on the taking of

souvenirs? (AR 608-4 of 28 Aug 1969, Control and Registration of War Trophies and War Trophy Firearms. (Issued

by all services as Chief of Naval Operations Instruction 3460.7A, AF Reg. 125-13 and Marine Corps Order 5800.6A).)

Appendix 6 - Intelligence Support to EW, C3CM

Appendix 7 - Imagery Intelligence

Appendix 8 - Intelligence Estimate for OPSEC, PSYOPs, Military Deception Plan

Appendix 9 - Measurement and Signature Annex

Appendix 10 - Planning Guidance - Captured Enemy Equipment

ANNEX C - OPERATIONS

Appendix I - Nuclear Operations

Tab A - Nuclear Options

Tab B - Nuclear Option Analysis

Tab C - Reconnaissance Operations to Support Nuclear Options

___ If nuclear weapons are to be deployed with U.S. forces, will any deployment route be over or through foreign

countries that prohibit or restrict such weapons?

Tab D - Nuclear Fire Support Table/Target Lists.

Tab E - Nuclear Target Overlay

Chapter 31

Checklists - International Law

529
Appendix 2 - Chemical Warfare and NBC Defense Operations

___ Does the plan contemplate the use of riot control agents, defoliants, chemical agents or gases of any kind? If so, is

the intended use consistent with the Chemical Warfare Convention and Exec Order 11850? (also paragraphs 37 and 38

and Change 1 to FM 27-10 and art. 23(a) of Hague IV).

___ If plan contemplates the use of any of the above, is the prior authorization of a sufficiently responsible level of

command required (Exec Order 11850 and Annex F, Joint Strategic Capabilities Plan)?

___ Is the contemplated use consistent with the provisions of the UN Environmental Modification Convention?

Appendix 3 - Electronic Warfare Operations

Appendix 4 - Psychological Operations

___ Is plan consistent with the requirement that PSYOPS efforts supporting U.S. forces comply with IL?

___ Do such propaganda operations constitute permissible ruses of war as allowed by art. 24 of Hague IV?

___ Is there sufficient guidance to ensure psyops efforts do not violate restrictions on coercion, compulsion, and force

towards civilians in arts. 23 (h), 44 and 45 of Hague IV and arts. 27, 31 and 51 of GC?

Appendix 5 - Special Operations

___ Does the plan contemplate clandestine operations designed to kill high ranking or key enemy officers or authorities?

If so, are such plans compatible with the prohibition against assassination (para. 31 of FM 27-10, art. 23(b) of Hague IV

and para. 2.11 of Exec Order 123331? (NOTE: Lawful targets and combatants may be attacked whenever and wherever

found.)

___ Does the plan require unconventional warfare personnel to conduct operations in uniform to the extent practicable in

order to avoid denial of PW status if captured (art. 29 of Hague IV and art. 4 of GPW)?

Appendix 6 - Search and Rescue Operations

Is the plan consistent with:

___ the fact that search and rescue personnel and their transport do not enjoy special protection under the LOW (see,

e.g., art. 27 of GWS(Sea))?

___ the requirement to take all possible measures to search for and collect shipwrecked, wounded and sick

combatants, without delay following an engagement, IAW art. 15 of GWS and art. 18 of GWS(Sea)?

___ common art. 12 of GWS and GWS(Sea) requiring U.S. forces to care for shipwrecked, wounded and sick

combatants without adverse distinction other than medical priority?

___ the requirement that enemy wounded, sick and shipwrecked combatants who fall into the hands of U.S. forces

be accorded PW status in compliance with art. 14 of GWS, arts. 14 and 16 of GWS(Sea), and art. 4 of GPW?

___ the requirement that enemy wounded, sick and shipwrecked religious and medical personnel who fall into the

hands of U.S. forces be accorded retained person status in compliance with, arts. 24, 26 and 28 of GWS and art. 33 of

GPW?

Appendix 7 - Deception

Is the plan consistent with:

Chapter 31

Checklists - International Law

530
___ prohibition against the use of treachery/perfidy to gain advantage over the enemy (art. 23 of Hague IV)?

___ prohibition against the improper use of a flag of truce, and misuse of the protective emblems of the GCs (art.

23(f) of Hague IV, art. 44 of GWS and art. 45 of GWS(Sea)I?

___ prohibition of art. 23(f) of Hague IV against improper use of the enemys national flag, military insignia and

uniform?

___ Are other ruses or deceptions consistent with the LOW (see, e.g., art. 24 of Hague IV)?

___ Does plan designate the appropriate level of command to determine whether medical installations, facilities and

personnel will be protected by the protective emblem of the GCs or will rely upon camouflage and camouflage discipline

(arts. 39 and 42 of GWS and art. 41 of GWS(Sea))?

Appendix 8 - ROE

___ Do any ROE restrict the operational freedom of action of the force because of an erroneous interpretation of the

requirements of the LOW? If so, they should be promptly identified to the issuing authority.

___ Do any of the ROE erroneously make avoidance of collateral civilian casualties and/or damage to civilian objects a

primary concern? Only intentional attacks of civilians and employment of weapons and tactics that cause excessive

collateral civilian casualties are prohibited. Any actions taken to avoid collateral civilian casualties and damage must be

consistent with mission accomplishment and force security.

___ Do the ROE recognize the inherent right of self-defense of all persons?

___ Is plan consistent with restrictions on unnecessary killing and the devastation, destruction, or seizure of property

(paras. 3, 34, 41, 47, 56, 58, and 59 and Chg 1 to FM 27-10; Arts 27 and 56 of Hague IV and GC Art. 53)?

___ If plan contemplates any military actions which could only be justified as reprisals, is it consistent with the

requirement that reprisals may only be conducted with the approval of the National Command Authorities (para. 497 of

FM 27-10 and the provisions of the GCs cited therein)?

Appendix 9 - Reconnaissance

___ Has the right of members of the force to PW status if captured been considered in determining whether modifications

to or elimination of their uniforms, or other ruses, will be permitted (arts. 23, 24 and 29 of Hague IV and art. 4 of GPW)?

Appendix 10 - Operations Overlay

Appendix 11 - Concept of Operations

___ Does the concept of operations contain any limitations on the operational freedom of action of the force which are

erroneously attributed to LOW requirements? If so, they should be promptly identified to the issuing authority.

___ Is plan consistent with the restrictions on unnecessary killing and the devastation, destruction, or seizure of property

(paragraphs 3, 41, 47, 56, 58, and 59 of FM 27-10; arts. 27 and 56 of Hague IV; and art. 53 of GC)?

___ If reprisals are contemplated, they may only be conducted with the approval of the National Command Authorities

(para. 497 of FM 27-10).

Appendix 12 - Fire Support

___ Are fire support plans consistent with IL governing the attack of defended places only (paragraphs 39 and 40 of FM

27-10 and arts. 25 and 26 of Hague IV)?

Chapter 31

Checklists - International Law

531
___ If a fire support plan contemplates the bombardment of a defended place containing a concentration of civilians,

does plan provide for the giving of an appropriate (i.e., either specific or general) warning (para. 43 of FM 27-10 and art.

26 of Hague IV)?

___ Are the fire support plans consistent with the restrictions on intentional attack of buildings dedicated to religion, art,

science, or charitable purposes, historic monuments, hospitals, hospital zones, safety zones, and places where the sick and

wounded are collected (paragraphs 45 and 57 of FM 27-10 and provisions of Hague IV, Hague IX, GC, GWS,

GWS(Sea), the Roerich Pact and the Hague Cultural Property Convention)?

___ If the fire support plans contemplate the attack or bombardment of any buildings or zones of the type described in

the preceding para. on the grounds that the buildings or zones are being used for military purposes, do they require the

prior authorization of a sufficiently responsible level of command prior to such attack or bombardment?

___ Do the fire support plans reference or identify appropriate protective symbols (art. 27 of Hague IV, art. V of Hague

IX, arts. 23 and 38 and Annex I of GWS, arts. 36, 38 and 40- 44 of GWS(Sea), art. 23 of GPW, arts. 14 and 83 and Annex

I of CC, arts. I and III of the Roerich Pact, and arts. 6 and 16-17 of the Hague Cultural Property Convention)?

___ Do the fire support plans identify the requirement for warnings and the appropriate level of authorizing authority

where protective emblems and areas are abused (art. 26 of Hague IV, art. 21 of GWS, art. 34 of GWS(Sea), and art. 11 of

the Hague Cultural Property Convention)?

___ Are the fire support plans consistent with the fundamental right of self-defense in situations where protective

emblems and protected areas are misused against our forces?

___ Do maps and overlays of the AO identify targets entitled to special protection?

___ Are hospital, safety and neutral zones, if any, identified? Are they visibly marked (art. 23 and Annex I of GWS and

art. 14 and Annex I of GC)?

___ Are special agreement hospital ship safety zones identified?

___ Are friendly/neutral embassies, consulates and chanceries identified?

___ Are PW and civilian internee and refugee camps identified?

___ Are they visibly marked (art. 23 of GPW and art. 83 of GC)?

___ Are hospitals, schools, & other civilian facilities (orphanages, retirement homes and the like) identified?

___ Are facilities and sites such as nuclear plants, chemical plants and dams, damage to which might be dangerous to the

populace, identified?

___ Are important cultural/artistic locations identified? Are they visibly marked in accordance with art. 27 of Hague IV,

art. V of Hague IX, art. III of the Roerich Pact, or art. 6 of the Hague Cultural Property Convention?

Tab A - Air Fire Plan

Enclosure 1 - Preplanned Close Air Support

Enclosure 2 - Air Target List

Enclosure 3 - Air Fire Plan Target Overlay

Tab B - Artillery Fire Plan

Enclosure 1 - Target Overlay

Enclosure 2 - Fire Support Table (Preparation Fires)

Enclosure 3 - Fire Support Table (Groups of Fires)

Chapter 31

Checklists - International Law

532
Tab C - Naval Gunfire Plan

Enclosure 1 - Naval Gunfire Support Operations Overlay

Enclosure 2 - Schedule of Fires

Enclosure 3 - Naval Gunfire Reports

Enclosure 4 - Radar Beacon Plan

Tab D - Chemical Fire Plan

___ Does the plan contemplate the use of riot control agents, defoliants, chemical agents or gases of any kind? If so, is

the intended use consistent with the Chemical Warfare Convention and Exec Order 11850? (also paragraphs 37 and 38

of, and Chg I to, FM 27-10 and art. 23(a) of Hague IV).

___ If plan contemplates the use of any of the above, if the prior authorization of a sufficiently responsible level of

command required (Exec Order 11850 and Annex F, Joint Strategic Capabilities Plan)?

___ Is the contemplated use consistent with the provisions of the UN Environmental Modification Convention?

(1) Enclosure 1 - Chemical Fire Support Table/Target List

(2) Enclosure 2 - Chemical Target Overlay

Tab E - Target List

Tab F - Fire Support Coordination Plan

Tab G - Fire Support Communication Plan

Tab H - Counter-mechanized Fire Plan

Appendix 13 - Non-combatant Evacuation Operations (NEO)

Appendix l4 - Escape and Evasion Operations

Appendix 15 - Counterattack Plan Breaching Plan

Appendix 16 - Explosives Ordnance Disposal Plan

Appendix 17 - Amphibious Operations

ANNEX D - LOGISTICS

___ Will the plan support the logistics requirements for anticipated PWs, refugees and internees?

___ If plan contemplates an occupation can it be supported logistically with respect to the requirements of the civilian

population (arts. 47-78 of GC)?

Appendix 1 - Petroleum, Oils, and Lubricants Supply

Appendix 2 - Mortuary Services

___ Does the plan provide for the collection, care, and accounting for enemy dead in accordance with arts. 16 and 17 of

GWS and arts. 19 and 20 of GWS(Sea)?

___ Is plan consistent with the limitations on cremation and the provisions regarding burial at sea of enemy dead (art. 17

of GWS and art. 20 of GWS(Sea))?

Appendix 3 - Sustainability Operations

Appendix 4 - Mobility/Transportation

___ Is medical transport marked, at the discretion of the Commander, with the protective emblem provided for by art. 39

of GWS and art. 41 of GWS(Sea), and is their intended use restricted exclusively to medical purposes if so marked?

___ Will the plan support the possible requirement for evacuation of PWs, civilian internees, refugees, and the sick and

wounded?

Chapter 31

Checklists - International Law

533
___ Have the parties to the conflict been notified of the names and descriptions of all hospital ships been at least ten days

before their employment, as required by arts. 22, 24 and 25 of GWS(Sea)?

___ Have all converted hospital ships been stripped of inappropriate armament and cryptographic equipment?

___ Are all hospital ships, rescue craft and lifeboats marked IAW the requirements of art. 43 of GWS(Sea)?

___ If hospital ships of the American Red Cross Society, other recognized U.S. relief societies or private U.S. citizens are

employed, have they been given an official commission as required by art. 24 of GWS(Sea)?

___ If hospital ships of a national Red Cross society, other officially recognized relief societies, or private citizens of

neutral countries are employed, have they placed themselves under the control of one of the parties to the conflict as

required by art. 25 of GWS(Sea)?

___ Are crews and medical personnel of hospital ships aware of their rights, duties and obligations under arts. 29, 32 and

34-37 of GWS(Sea)?

___ If any aircraft are to be exclusively employed for medical and medical support purposes are they marked in

accordance with the provisions of art. 36 of GWS and art. 39 of GWS(Sea)?

Appendix 5 - Civil Engineering Support Plan

___ Does the plan provide, as far as possible, for the locating of medical establishments and units in such a manner as not

to imperil their safety, in accordance with art. 19 of GWS?

___ Does the plan provide for the locating of PW camps in such a manner as not to expose them to the hazards of

combat, IAW art. 23 of GPW?

___ Is plan consistent with the possible requirement for construction of PW, internee, and civilian refugee camps?

___ Is the barrier plan consistent with the prohibition against indiscriminate and uncharted mining?

Appendix 6 - Non-nuclear Ammunition

___ Does the plan provide guidance on disposition of captured enemy armaments including limitations on the taking of

souvenirs? (AR 608-4 of 28 Aug 1969, Control and Registration of War Trophies and War Trophy Firearms. (Issued

by all services as Chief of Naval Operations Instruction 3460.7A, AF Reg 125-13 and Marine Corps Order 5800.6A).

ANNEX E - PERSONNEL

___ Are all members of the force subject to the UCMJ for LOW purposes?

___ Is there a judge advocate designated to deal with the ICRC?

___ Is a POC designated to collect evidence on war crimes?

Appendix 1 - Enemy PWs, Civilian Internees, and Other Detained and Retained Persons

___ Does the plan designate responsibility to establish PW compounds and arrange for PW visits (by ICRC)?

___ Is plan consistent with the provisions of AR 190-8, Enemy Prisoners of War, Civilian Internees and Detained

Persons?

Chapter 31

Checklists - International Law

534
___ Does plan include procedures for ascertaining whether various persons who fall into the hands of U.S. forces are

entitled to treatment as PWs or retained personnel, or to be released (arts. 4 and 5 of GPW, arts. 24-32 of GWS, and arts.

36- 37 of GWS (Sea))?

___ Is plan consistent with the requirement that where there is any doubt as to the status of a person who has committed a

belligerent act and is in the hands of U.S. forces such person shall be treated as a PW until such time as his status is

determined by a competent tribunal (art. 5 of GPW)?

___ Does plan provide procedures for art. 5 (GPW) tribunals?

___ Does the plan include appropriate instructions to insure proper treatment of PWs at the point of capture and during

interrogation? In particular:

___ Is plan consistent with the prohibitions against the killing, torture or mistreatment of PWs effective from the

time of their surrender (paras. 28, 29, 84 and 85 of FM 27-10 and the provisions of GPW and Hague IV cited therein)?

___ Does plan recognize the limitations on the interrogation of PWs, including the requirement that they be

interrogated in a language they understand (art. 17 of GPW)?

___ Does the plan provide a procedure for inventory and safeguarding PW personal property?

___ Are procedures for the evacuation of PWs consistent with arts. 19 and 20 of GPW?

___ Does the plan provide for furnishing IDs to PWs who possess none, consistent with art. 18 of GPW?

___ If plan contemplates transfer of PWs to the custody of allied forces, is it consistent with the requirements of art.

12 of GPW and DoD Directive 5100.69, DoD Program for Prisoners of War and Other Detainees?

___ Does the plan assign responsibility to an appropriate component command (usually Army) for the care and handling

of PWs? In particular:

___ Internment (arts. 21-24 of GPW);

___ Quarters, food and clothing (arts. 25-28 of GPW);

___ Hygiene and medical care (arts. 29-32 and 112-114 of GPW)

___ Religious, educational and recreational activities (see arts. 34-38 of GPW);

___ Labor and compensation (arts. 49-57 of GPW);

___ Information bureaus, mail service and other communications with the exterior (arts. 69-77 of GPW);

___ Prisoner relations (arts. 79-81 of GPW);

___ Discipline and penal sanctions (arts. 82-108, and 115 of GPW);

___ Release and repatriation (arts. 109-110, and 112-119 of GPW);

___ Care of enemy wounded and sick and graves registration (arts. 109-110, 112-114, and 120-121 of GPW).

___ Is plan consistent with arts. 79-135 concerning the treatment of civilian internees?

Appendix 2 - Processing of Formerly Captured, Missing or Detained U.S. Personnel

Chapter 31

Checklists - International Law

535
___ Does plan include appropriate procedures for reporting alleged war crimes and related misconduct committed by the

enemy, and alleged misconduct by U.S. and allied PWs, and assign responsibility for the collection and preservation of

evidence of all such matters (see, e.g., common art., 49/50/129/146 of the GCs)?

Appendix 3 - Finance and Disbursement

Appendix 4 - Legal [see Appendix for formats and sample]

Legal Assistance

Military Justice

___ Are all members of the force subject to the UCMJ for LOW purposes?

___ Are units properly attached for jurisdiction?

Claims

International Law Considerations

___ Have the various elements of plan been reviewed for LOW considerations by the appropriate staff sections and

members of the executive and special staffs?

___ Does the concept of operations contain any limitations on the operational freedom of action of the force which are

erroneously attributed to LOW requirements? If so, they should be promptly identified to the issuing authority.

___ Do any of the ROE restrict the operational freedom of action of the force because of an erroneous interpretation of

the requirements of the LOW? If so, they should be promptly identified to the issuing authority.

___ Do any of the ROE erroneously make avoidance of collateral civilian casualties and/or damage to civilian objects a

primary concern? Only intentional attacks of civilians and employment of weapons and tactics that cause excessive

collateral civilian casualties are prohibited. Any actions taken to avoid collateral civilian casualties and damage must be

consistent with mission accomplishment and force security.

___ Do ROE recognize the inherent right of self-defense of all persons?

___ Have the requirements for any special LOW training, planning and equipment been met? In particular:

___ Are civilians or other nonmilitary personnel accompanying the force equipped with the proper identification

provided for such individuals (see, e.g., art. 40 of GWS, art. 4(A) (4) and Annex IV(A) of GPW, and DoD Instruction

1000 .1, ID Cards Required by the Geneva Conventions), and have they been instructed in their LOW rights, duties and

obligations?

___ Does the force include personnel of the American Red Cross Society or other U.S. voluntary aid societies assigned

exclusively to medical and medical support duties (arts. 24 and 26 of GWS)? If so:

Are they subject to U.S. military laws and regulations?

Has their intended assistance been notified to the enemy?

Have they been instructed in their LOW rights/duties/obligations?

Have they been furnished the ID cards required by art. 40 of GWS?

___ Does the force include personnel of a recognized national Red Cross society or other voluntary aid societies of a

neutral country (art. 27 of GWS)? If so:

Are they present with U.S. authorization and the previous consent of their own government?

Chapter 31

Checklists - International Law

536
Are they under official U.S. control?

Has their intended assistance been notified to the enemy?

Have they been instructed in their LOW rights/duties/obligations?

Have they been furnished the ID cards required by art. 40 of GWS?

___ Does the force include personnel of the American Red Cross Society whose duties are not exclusively medical? If

so, are they aware of the restrictions on their use of the Red Cross emblem contained in art. 44 of GWS?

___ Are the medical and religious personnel of the force equipped with the protective identification provided for such

individuals (art. 40 and Annex II of GWS and art. 42 and the Annex to GWS(Sea)), and have they been trained in their

special rights, duties and obligations under the LOW?

___ Has a model of the protective ID card for such personnel been communicated to the enemy as required by art. 40 of

GWS?

___ Are there any theater-specific LOW training requirements or ROE for the area into which the force is to be

deployed?

Should the plan call for:

___ the collection of information about the enemys policies, attitudes and practices concerning compliance with the

LOW?

___ the collection of information about allied policies, attitudes and practices concerning compliance with the

LOW?

___ the collection of information about enemy and allied protective emblems and insignia?

___ Does plan include procedures for ascertaining whether various persons who fall into the hands of U.S. forces are

entitled to treatment as PWs or retained personnel, or to be released IAW arts. 4 and 5 of GPW, arts. 24-32 of GWS, and

arts. 36- 37 of GWS (Sea))?

___ Is plan consistent with the requirement that where there is any doubt as to the status of a person who has committed a

belligerent act and is in the hands of U.S. forces such person shall be treated as a PW until such time as his status is

determined by a competent tribunal (art. 5 of GPW)?

___ Does the plan provide procedures for setting up and operating an art. 5 (GPW) tribunal?

___ Does plan include appropriate procedures for reporting alleged war crimes and related misconduct committed by the

enemy, and alleged misconduct by U.S. and allied PWs, and assign responsibility for the collection and preservation of

evidence of all such matters (see, e.g., common art. 49/50/129/146 of the GCs)?

___ Is plan consistent with the serious incident reporting requirements of higher headquarters as they pertain to alleged

war crimes and related misconduct?

___ If plan contemplates an occupation, is it consistent with the obligation of an occupier to restore and preserve public

order and safety while respecting, in accordance with art. 43 of Hague IV, the laws in force in that country?

___ If plan includes draft proclamations, laws, or ordinances for use in an occupied territory, do those documents

conform to the requirements of IL as set forth in arts. 42-56 of Hague IV and arts. 64-78 of the GC?

Chapter 31

Checklists - International Law

537
International Agreements and Congressional Enactments

If plan contemplates deployment of U.S. forces into a foreign territory, the following questions should be answered:

___ Will deployment of U.S. forces into the foreign territory be at the request of or with the consent of the lawfully

constituted government? Consider arts. 2 and 51 of the UN Charter, and relevant provisions of any regional defense

treaties, SOFAs, or other agreements applicable to the foreign territory involved.

___ Will deployment of U.S. forces into the foreign territory be part of a peacekeeping mission undertaken pursuant

to the UN Charter or other international agreements, including regional treaties? Consider arts. 11, 12, 14, 24, 39-49, and

52-54 of the UN Charter, and arts. 24, 25, and 43 of the OAS Charter.

___ Is deployment of U.S. forces into the foreign territory an act of individual or collective self-defense against an

armed attack, either direct or indirect?

Consider arts. 51 and 103 of the UN Charter, and any collective defense arrangements involving the foreign territory and

the U.S.. Also, consider any Congressional enactment that may be applicable.

___ Is deployment of U.S. forces into the foreign territory to protect or extract U.S. or foreign nationals? Consider

the traditional theories of justifiable intervention developed under the customary and codified IL.

___ Is deployment of U.S. forces into the foreign territory to protect or extract sensitive U.S. material or equipment

such as nuclear ordnance or cryptographic material or to protect U.S. (as opposed to private installations such as

embassies, consulates or military sites)?

Consider the analogy to traditional theories of justifiable intervention under customary and codified IL to protect U.S.

nationals and property.

If plan contemplates the deployment of U.S. forces into foreign territory, consider whether the War Powers Resolution is

applicable.

___ Does the deployment situation clearly indicate imminent U.S. involvement in hostilities?

___ Will the deployed forces be equipped for combat?

___ Will the deployed forces substantially enlarge U.S. forces already located in the foreign territory?

If plan specifies certain methods and routes of deployment, the following questions should be answered:

___ Does plan contemplate deployment routes which traverse the airspace, territory or territorial seas of any foreign

country or the establishment of staging areas or bases within the foreign territory?

___ Does an agreement exist with the foreign country which grants the U.S. such rights? If so, does the plan make

reference to the agreement and is it consistent with the terms of the agreement? If such an agreement exists, does it

require consultation with and the consent of the foreign country prior to exercising those rights?

If consultation and consent are required, does plan recognize the necessity of securing such consultation or consent

through Defense or State Department channels prior to deployment?

If no such agreement exists, does plan recognize the necessity of securing such rights through Defense or State

Department channels prior to deployment?

___ Are planned deployment routes, staging areas, en route bases, safe havens, etc., set forth in plan consistent with

applicable international agreements?

Chapter 31

Checklists - International Law

538
If nuclear weapons are to be deployed with U.S. forces, will any deployment route be over or through foreign countries

that prohibit or restrict such weapons?

Will any staging or en route bases be established in areas recognized as demilitarized zones?

If plan contemplates deployment by sea route through territorial waters, will such passage conform to the requirements of

innocent passage as set forth in arts. 1-17 and 23 of the Territorial Sea Convention?

___ Is the foreign state a party to the Territorial Sea Convention?

___ Do we have SOFAs with the countries U.S. forces will pass through or be deployed into? If so:

Do the agreements allow U.S. forces sufficient rights and freedom of action to carry out the mission contemplated by

plan?

Do the agreements have any provisions changing the status of U.S. personnel in the event of hostilities?

Do the agreements have any provisions that are either automatically suspended or become subject to review in the

event of hostilities?

___ If we have no SOFA with a country through which U.S. forces will pass or be deployed into, or if an existing

agreement is inadequate for planned mission:

Does plan recognize need to initiate through Defense or State Dept channels discussions with foreign authorities

regarding appropriate arrangements governing the status of U.S. forces?

___ Does the plan assign responsibility to an appropriate command or staff office for maintaining liaison with the U.S.

diplomatic mission and local authorities on status of forces matters?

Appendix 5 - Military Postal Service

ANNEX F - PUBLIC AFFAIRS

___ Is plan consistent with the serious incident reporting requirements of higher headquarters as they pertain to alleged

war crimes and related misconduct (the various directives in the Appendix)?

Appendix 1 - Personnel Requirements

Appendix 2 - Equipment Requirements

ANNEX G - CIVIL AFFAIRS

___ Is plan consistent with the guidance contained in FM 41-5 and FM 41-10?

Appendix 1 - Public Safety

___ Does the plan provide guidance on requests for asylum and temporary refuge in accordance with DoD Directive

2000.11, Procedures for Handling Requests for Political Asylum and Temporary Refuge?

___ If plan contemplates the internment of civilians, does it provide guidance on the establishment and operation of

internee camps in accordance with the requirements of arts. 79-135 of GC until such time that the camps can be turned

over to other agencies?

___ If plan contemplates occupation of foreign or enemy territory by U.S. forces, does plan provide that civil affairs

operations conform to IL relating to occupations as set forth in arts. 42- 56 of Hague IV and arts. 47-78 of GC?

Chapter 31

Checklists - International Law

539
___ Is the plan consistent with the obligation of an occupier to restore and preserve public order and safety while

respecting, in accordance with art. 43 of Hague IV, the laws in force in that country?

___ If the plan includes draft proclamations, laws, or ordinances for use in the occupied territory, do those

documents conform to requirements of IL as set forth in arts. 42-56 of Hague IV and arts. 64-78 of the GC?

___ Is plan consistent with IL to avoid the unnecessary destruction of public utilities and safety facilities?

___ Does plan comply with IL regarding methods of property control and does it recognize the limitations on the

requisitioning, seizure and use of civilian property (see, e.g., arts. 43 and 47-56 of Hague IV and arts. 33, 53, 97 and 108

of GC)?

___ Is plan consistent with IL in affording maximum protection to shrines, buildings, symbols, etc., associated with the

religion and culture of the civilian populace?

___ If plan contemplates the utilization of the services and labor of the civilian population, are the procedures consistent

with the requirements of Hague IV and GC in addition to U.S. policy as set forth in DA Pam 690-80, Administration of

Foreign Labor During Hostilities? Are they consistent with existing alliance agreements and SOFAs?

___ Does the plan allow procedures for civilians to send and receive news of a strictly personal nature to members of

their families in accordance with arts. 25 and 26 of GC?

___ Is plan consistent with the prohibition against the improper transfer, deportation or evacuation of civilians in

occupied territory contained in art. 49 of GC?

Appendix 2 - Public Health and Welfare

___ Does plan ensure that all aspects of the civil affairs program conform to the requirements of IL, and in particular to

GC, with a view to giving maximum attention to alleviating the human suffering of the civilian population?

___ Does the plan ensure refugee collection points and routes of evacuation are consistent with scheme of maneuver and

as remote as practicable from areas where combat can be expected?

___ Does the plan allow, where tactically appropriate, for the evacuation from besieged areas of wounded, sick, infirm,

young and aged civilians as set forth in art. l7 of GC?

___ Is plan consistent with the special obligation imposed by art. l6 and other provisions of GC to give particular

protection and respect to civilian wounded and sick, aged and infirm, and expectant mothers?

___ Does plan provide that displaced persons, refugees and evacuees be treated in accordance with the requirements of

IL?

___ Does the plan comply with the protection required for civilian hospitals and staff set forth in arts. 18-20 and 57 of

GC?

___ Does plan provide for or reference draft agreements for the establishment of safety or neutral zones for civilians as

permitted in art. 15 of GC?

Appendix 3 - Information and Education

___ If plan includes draft proclamations, laws, or ordinances for use in the occupied territory, do those documents

conform to the requirements of IL as set forth in arts. 42-56 of Hague IV and arts. 64-78 of the GC?

ANNEX H - ENVIRONMENTAL SERVICES

Chapter 31

Checklists - International Law

540
___ Are the provisions of plan for disposition of enemy dead consistent with both the LOW (art. 17 of GWS and art. 20

of GWS(Sea)) and environmental restrictions?

___ Are the provisions of plan for disposition of captured munitions, fuels, and other toxic and dangerous substances

consistent with environmental restrictions such as the UN Environmental Modification Convention?

ANNEX J - COMMAND RELATIONSHIPS

___ Are the command relationships consistent with the concept and obligation of command responsibility under the

LOW?

Appendix 1 - Command Relations Diagram

ANNEX K - COMMAND, CONTROL, AND COMMUNICATIONS SYSTEMS

Appendix 1 - Communications Security

___ No cryptographic methods and equipment on hospital ships (art. 34 of GWS(Sea)).

___ Does plan provide for medical aircraft to have the communications capability to respond to every [enemy]

summons to alight during mutually agreed medevac missions as required by art. 36 of GWS and art. 39 of GWS(Sea)?

___ Does the plan provide for the communications capability to communicate with the enemy in furtherance of the

various notification, truce and local agreement provisions of the GCs and Hague IV?

Appendix 2 - C3 Protection

Appendix 3 - Communications Planning

___ Does the plan allow for communications with the enemy for truce and local agreement purposes?

___ If plan contemplates local agreements with the enemy for medical aircraft operations and overflights, do medical

aircraft have the communications capability to respond to every [enemy] summons to alight required by art. 36 of GWS

and art. 39 of GWS(Sea)?

Appendix 4 - Defense Courier Service

ANNEX L - OPERATIONS SECURITY

Appendix 1 - Operations Security Estimate

Appendix 2 - Operations Security Measures

___ Should the plan call for the collection of information about allied policies, attitudes and practices concerning

compliance with the LOW?

___ Should the plan call for the collection of information about enemy and allied protective emblems and insignia?

ANNEX M - MAPPING, CHARTING & GEODESY

Do maps and overlays of the contemplated area of operations of U.S. forces identify targets that may be entitled to special

protection?

___ Are hospital, safety and neutral zones, if any, identified? Are they visibly marked (art. 23 and Annex I of GWS

and art. 14 and Annex I of GC)?

___ Are special agreement hospital ship safety zones identified?

___ Are friendly/neutral embassies, consulates and chanceries identified?

Chapter 31

Checklists - International Law

541
___ Are PW and civilian internee and refugee camps identified? Are they visibly marked (art. 23 of GPW and art.

83 of GC)?

___ Are hospitals, schools, and civilian facilities such as orphanages, retirement homes identified?

___ Are facilities and sites such as nuclear plants, chemical plants and dams, damage to which might be dangerous

to the populace, identified?

___ Are important cultural and artistic locations identified? Are they visibly marked in accordance with art. 27 of

Hague IV, art. V of Hague IX, art. III of the Roerich Pact, or art. 6 of the Hague Cultural Property Convention?

ANNEX N - SPACE SYSTEMS

ANNEX P - WARTIME HOST NATIONS SUPPORT

___ Are support agreements consistent with the provisions of DA Pam 660-80, Administration of Foreign Labor During

Hostilities (1971) (NAVSO P-1910; AFM 40-8; MCO P 12190.1) and with any relevant alliance agreements, Acquisition

and Cross Servicing Agreements or SOFAs? [See Chapter 16]

ANNEX Q - MEDICAL SERVICES

___ Is plan consistent with the limitations on capture or destruction of enemy medical material, stores and equipment

imposed by art. 33 of GWS and art. 38 of GWS(Sea)?

___ Is plan consistent with the qualified requirement of arts. 23 and 56 of GC for the free passage of medical and hospital

stores intended only for civilians of the opponent?

___ If plan contemplates an occupation does it provide for medical supplies for the occupied population to the fullest

extent of the means available (as required by art. 55 of GC)?

___ Is plan consistent with the limitations on requisition of medical materials and stores of an occupied population

contained in art. 57 of GC?

___ Does the plan provide, subject to the Commanders discretion, for the marking with the Red Cross of all U.S.

medical vehicles, facilities and stores in accordance with arts. 39 and 42 of GWS and art. 41 of GWS(Sea), and for their

use exclusively for medical purposes if so marked?

___ Are medical personnel of the force (art. 24 of GWS) equipped with the protective emblems provided for by art. 38 of

GWS and art. 41 of GWS(Sea), and with the special identification cards referenced in those conventions?

___ Are such personnel assigned exclusively to medical duties or to the administration of medical organizations (art. 24

of GWS)?

___ Have such personnel been trained in their special rights, duties and obligations under the LOW?

___ Are auxiliary medical personnel (art. 25 of GWS) equipped with protective emblems provided for by art. 41 of GWS

and with military ID documents specified by that art.?

___ Does the plan reference or identify appropriate protective symbols (art. 38 of GWS and art. 41 of GWS(Sea)?

___ Does the plan provide for a command determination as to whether medical personnel and facilities will display the

protective emblem or will rely upon camouflage and camouflage discipline?

Chapter 31

Checklists - International Law

542
___ Does the plan provide, subject to the Commanders discretion, for the marking with the Red Cross of all U.S.

medical vehicles, facilities and stores in accordance with arts. 39 and 42 of GWS and art. 41 of GWS(Sea), and for their

use exclusively for medical purposes if so marked?

___ Does the plan provide, as far as possible, for the locating of medical establishments and units in such a manner as not

to imperil their safety, in accordance with art. 19 of GWS?

___ Have the names and descriptions of all hospital ships been notified to the parties to the conflict at least ten days

before their employment as required by arts. 22, 24 and 25 of GWS(Sea)?

___ Is plan consistent with the prohibition against cryptographic methods and equipment on hospital ships (art. 34 of

GWS(Sea))?

___ Have all vessels converted to hospital ships been stripped of inappropriate armament and cryptographic equipment?

___ Are all hospital ships, rescue craft, and lifeboats marked IAW the requirements of art. 43 of GWS(Sea)?

___ If hospital ships of the American Red Cross Society, other recognized U.S. relief societies or private U.S. citizens are

employed, have they been given an official commission as required by art. 24 of GWS(Sea)?

___ If hospital ships of a national Red Cross society, other officially recognized relief societies, or private citizens of

neutral countries are employed, have they placed themselves under the control of one of the parties to the conflict as

required by art. 25 of GWS(Sea)?

___ Are crews and medical personnel of hospital ships aware of their rights, duties and obligations under arts. 29, 32 and

34-37 of GWS(Sea)?

___ If any aircraft are to be exclusively employed for medical and medical support purposes are they marked in

accordance with the provisions of art. 36 of GWS and art. 39 of GWS(Sea)?

___ Is plan consistent with the fact that search and rescue personnel and their transport do not enjoy special protection

under the LOW (see, e.g., art. 27 of GWS(Sea))?

___ Does the plan contemplate local agreements with the enemy for medical aircraft operations and overflights (art. 36 of

GWS and art. 39 of GWS(Sea)?

___ If so, do medical aircraft have the communications capability to respond to every [enemy] summons to alight

required by art. 36 of GWS and art. 39 of GWS(Sea)?

___ Is plan consistent with the requirement to take all possible measures to search for and collect shipwrecked, wounded

and sick combatants, without delay following an engagement, in accordance with art. 15 of GWS and art. 18 of

GWS(Sea)?

___ Is plan consistent with common art. 12 of GWS and GWS(Sea) requiring U.S. forces to care for shipwrecked,

wounded and sick combatants without adverse distinction other than medical priority?

___ Is plan consistent with the requirement that enemy wounded, sick and shipwrecked combatants who fall into the

hands of U.S. forces be accorded PW status in compliance with art. 14 of GWS and arts. 14 and 16 of GWS(Sea)?

___ Is plan consistent with the requirement that enemy wounded, sick and shipwrecked religious and medical personnel

who fall into the hands of U.S. forces be accorded retained person status in compliance with arts. 24, 26 and 28 of GWS?

___ Does the plan provide for the care of enemy wounded and sick and graves registration (arts. 109-110, 112-114 and

120-121, GPW).

Chapter 31

Checklists - International Law

543
___ Is plan consistent with the limitations on capture or destruction of enemy medical material, stores and equipment

imposed by art. 33 of GWS and art. 38 of GWS(Sea)?

___ Is plan consistent with the special obligation imposed by art. 16 of GC to give particular protection and respect to

civilian wounded and sick, aged and infirm, and expectant mothers?

___ Is plan consistent with the qualified requirement of arts. 23 and 56 of GC for the free passage of medical and hospital

stores intended only for civilians of the opponent?

___ If plan contemplates an occupation does it provide for medical supplies for the occupied population to the fullest

extent of the means available (as required by art. 55 of GC)?

___ Does the plan recognize the limitations on requisition of medical material and stores of an occupied population?

___ Are the provisions of plan for disposition of enemy dead consistent with both the LOW (art. 17 of GWS and art. 20

of GWS(Sea)) and environmental restrictions?

ANNEX R - CHAPLAIN SERVICES

Chapter 31

Checklists - International Law

544
INTERNATIONAL AGREEMENTS REVIEW CHECKLIST

1. Agreement being reviewed:

a. Title: ______________________________________________________________________

______________________________________________________________________

(Is this title accurately descriptive of the substance of the agreement?)

b. Parties: ______________________________________________________________________

______________________________________________________________________

c. Type of Agreement: _____________________________________________________________

d. Purpose:_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

e. Is there already another agreement covering this subject? Check TIAS and other resources for redundancy.

2. Procedural authority for negotiation.

a. Approval authority (Does the agreement have policy significance?): _______________________

b. Do you have written documentation of authority to negotiate?

c. How designated: ________________________________________

d. Negotiator: ____________________________________________

e. Should there be terms of reference or other written guidance for the negotiator?

f. Is there a need to limit the negotiators authority, e.g., should agreements reached at the table be ad referendum

only?

g. Does the person representing the other party appear to have proper authority?

3. Substantive authority.

a. Enumerate each commitment or responsibility the U.S. will assume under the agreement. Look especially for:

(1) Security commitments.

(2) Obligations that cost money.

(3) Obligations that impact on operational flexibility.

(4) Provisions affecting the privileges, immunities, responsibilities and quality of life of U.S. personnel.

b. For each commitment or obligation, articulate a corresponding legal authority, e.g.:

Chapter 31

Checklists - International Agreements

545
(1) U.S. Constitution.

(2) Statute.

(3) Regulation.

(4) Existing treaty or other international agreement.

4. Substance of the agreement.

a. Is there language signifying the intent of the parties to be bound under international law?

b. Does the agreement purport to subject the force, as an instrumentality of the U.S. Government, to the jurisdiction

of the receiving state?

c. If under the agreement U.S. personnel will be present in foreign territory, is there adequate provision for their

status?

d. Does the agreement provide for immunity from taxation by the receiving state for U.S. activities, including

contracting and acquisition of goods and services, and import/export of materials?

e. If facilities will be built under the agreement, is there provision for meeting U.S. standards/specifications?

f. If construction or improvement of facilities is funded by the U.S., is there provision for recouping their residual

value upon turnover to the host nation?

5. Fiscal matters.

a. Has a funding source been identified?

b. Have funds been budgeted (check out-years) to support all commitments or obligations under the agreement? In

the alternative, is there an indication that the budgeting of funds will be requested?

c. Specify budget category data and estimated cost of performance in current/out years.

d. Are planned expenditures consistent with the purpose for which the funds were appropriated?

e. Are any planned expenditures inconsistent with fiscal policies?

f. Does the agreement have a fund availability qualification? If not, has an Obligation been created improperly?

g. Have pertinent agreements concerning claims, security, reciprocal medical care, or reciprocal procurement/

logistics been factored into the agreement and, if necessary, incorporated by reference? If yes, list related supporting

agreements.

h. If the agreement provides for reimbursement to the U.S., is there authorization for deposit in a specific account,

or does it go into miscellaneous receipts?

6. Security review.

a. Is the agreement properly classified for its substantive content?

b. Has the J2 chopped on the draft agreement?

c. Will classified military information pass from the U.S. to the other party to the agreement?

Chapter 31

Checklists - International Agreements

546
d. Is there a General Security of Information Agreement with the other prospective party?

e. Even if unclassified, is information susceptible to transfer such that a Technology Assessment/Control Plan is

required?

f. Are there provisions in the agreement to safeguard against the unauthorized dissemination of classified

information?

g. Does the agreement or any of the information it covers implicate National Disclosure Policy?

h. Does any classified information concern special category information, e.g., sensitive technology?

i. Will the agreement result in foreign visitors or liaison officers?

7. Signature page.

a. Are the signers properly identified:

(1) By name: ____________________________

(2) By title: ___________________________

(3) By position: _________________________

(NOTE: This information is frequently left blank until the day of actual signing, then all that is written in are

the signatures. Names should be typed to ensure legibility, and the signers should be properly identified. For the United

States of America is not descriptive of the position of the person signing the agreement and does little to suggest his

authority.)

b. Is there a place for dating the agreement?

c. Is the date of entry into force (effective date) indicated? _____________________________________

d. Is there a statement regarding the language of the agreement?

e. If there is a version in any language other than English, is there a certificate that they are substantially the same

by a qualified U.S. linguist?

8. Miscellaneous.

Is there an indication that the office or command responsible for concluding the agreement is aware of the reporting

requirements of the Case Act (1 U.S.C. § 112) and enclosure (6) to DoD Directive 5530.3?

Chapter 31

Checklists - International Agreements

547
CONTRACT AND FISCAL LAW

PREPARATION AND PREDEPLOYMENT

__ Review legal studies and materials dealing with the area of operations (AO).

__ The judge advocate should assist the G-4 in obtaining extended purchase authority, LAW AR 37-21, up to the

limit of 10 U.S.C. § 2304 for Ordering Officers and Class A Agents, down to battalion level, if necessary;

develop guidance for the use of operations funds; and assist the Class A Agents in distributing such funds.

__ In the absence of an established organization in the Area of Operations (AO) (i.e., one with contracting officers,

civil affairs personnel, and a full complement of combat service support), at what level will CDRs be authorized

to contract for necessary supplies and services? This warrant must be obtained from the Head of the Contracting

Activity (e.g. CDR, FORSCOM; CDR, Eighth Army, etc.).

__ The probable need to ratify irregular acquisitions, (i.e., those made by individuals not authorized to commit the

U.S.). See AR 37-107, para. 5-25; and applicable sections of the Federal Acquisition Regulations (FARS), DoD

Acquisition Regulations (DFARS) and Army Acquisition Regulations (AFARS).

__ What kinds of funds will be available for acquisition of supplies and services in the AO, and what controls will

be placed on the expenditure or obligation of these funds?

__ How is the furnishing of goods and supplies by the U.S. forces to allied forces to be accomplished.

__ Review OPLAN/OPORDER to see if overseas procurement will be necessary.

WHILE DEPLOYED

__ Establish immediate contact with the contracting officer and civil affairs element which identity and coordinate

acquisition of locally available materials and services.

__ Provide legal advice and other assistance, as required, on all contract and fiscal law matters.

__ When procuring legal property by requisition or seizure (as opposed to contracting), ensure that receipts

describing the items seized, the location, the owner, and the custodian are prepared.

__ Coordinate real estate arrangements in the area of operations with engineers accompanying the force. (See AR

405-15).

__ Ensure that minor and emergency construction comply with applicable law & regulation. (See AR 415-35).

__ To the extent possible, accompany contracting personnel dealing with the local populace.

CONTRACT LAW REFERENCES

Federal Acquisition Regulation (FAR).

DoD Federal Acquisition Regulation Supplement (DFARS).

Department of Army Federal Acquisition Regulation Supplement (AFARS).

AR 37-20, Administrative Control of Appropriated Funds.

Chapter 31

Checklists - Contract and Fiscal

548
AR 37-21, Commitments and Obligations.

AR 37-103-1, Imprest Funds.

AR 37-107, Processing and Payment of Commercial Accounts.

AR 405-15, Real Estate Claims Founded Upon Contract.

AR 415-35, Minor Construction, Emergency Construction, and Replacement of Facilities Damaged or Destroyed.

DA Pam 27-153, Procurement Law.

DA Pam 715-xx, Contingency Contracting

DA Pam 690-80, Use and Administration of Local Civilians in Foreign Areas During Hostilities.

TM 5-300, Real Estate Operations in Overseas Command.

Forms: SF 44 Vouchers, DD 1155 Vouchers

Chapter 31

Checklists - Contract and Fiscal

549
MILITARY JUSTICE (CRIMINAL LAW)

PREPARATION AND PREDEPLOYMENT

__ Ensure all deploying soldiers are assigned or attached to a deploying unit for UCMJ (jurisdiction) purposes.

__ Plan for the exercise of criminal and administrative jurisdiction over personnel left behind. Ensure all rear

detachment personnel are assigned or attached to a follow-on unit for UCMJ (jurisdiction) purposes.

__ Determine if a SOFA exists or arrangements have been made for exclusive jurisdiction over U.S. personnel

(Military? Civilians/contractors?). If there is a SOFA, is it expressly applicable during hostilities?

WHILE DEPLOYED

Plan for continued military justice operations. Depending on the anticipated duration, consider the following:

__ Ensure that, if Art. 32 investigations and courts-martial will be conducted during the deployment, courtroom

facilities have been located and equipped.

__ Should a military judge deploy to try cases at the location?

__ Have the Trial Judiciary and Circuit Chief Judge been notified?

__ How will Art. 32 investigations be conducted at location of deployment?

__ How will pretrial confinement be established?

__ How will summary court officers be drawn? (line officers, staff officers, or judge advocates).

__ Will prisoners serving sentences locally be released to deploy with their units?

__ Ensure deployed judge advocates have access to an interpreter for interviews and/or depositions of local

witnesses. The Claims judge advocate interpreter may be able to serve this function.

__ Ensure that, if cases are to be tried during the duration of the deployment, the pool of officers and enlisted

members for court-martial panels contains only deploying personnel.

__ Ensure personnel are briefed concerning conditions on liberty in their deployment area.

__ Coordinate with communications, transportation, and aviation elements to establish contact and courier service

with the rear detachment.

__ Ensure that, where necessary, testimony of local witnesses is preserved by deposition. A deployed court reporter

and interpreter may be used for this purpose. The country law study or local legal agencies should be consulted

to determine whether the HN laws place restrictions on local nationals giving depositions (particularly if they are

local officials).

__ Coordinate with the PM to determine whether: Evidence-handling procedures are adequate. Pretrial

confinement facilities, if any, have been established.

__ Make periodic visits to forward units to meet with CDRs, witnesses, and, in the case of deployed defense

counsel, suspects and accused.

Chapter 31

Checklists - Military Justice

550
__ If it is a short-term deployment, ensure that, if nonjudicial punishment is to be administered during the

deployment, the attendant paperwork is forwarded by courier to the rear detachment for processing.

__ Ensure that allegations of law of war violations are thoroughly investigated and that evidence has been

preserved.

__ Ensure that orders assigning or attaching soldiers to other than their original units for UCMJ purposes are

revoked upon deployment.

__ If, in an area where a SOFA is applicable, ensure that a waiver of jurisdiction is obtained prior to redeployment

of an accused.

REFERENCES

Manual for Courts-Martial, current edition.

AR 15-6, Procedures for Investigating Officers and Boards of Officers.

AR 27-10, Military Justice, with local supplements (if any).

AR 27-26, Rules of Professional Conduct.

AR 27-50, Status of Forces Policies, Procedures, and Information.

AR 135-178, Guard and Reserve Enlisted Separations.

AR 190-30, Military Police Investigations.

AR 190-34, Correctional Custody.

AR 190-41, Customs Law Enforcement.

AR 190-47, U.S. Army Correctional System.

AR 195-2, Army Criminal Investigation Program.

AR 195-5, Evidence Procedures.

AR 600-8-2, Suspension of Favorable Actions

AR 600-8-19, Enlisted Promotions and Reductions

AR 600-8-24, Officer Transfers and Reductions

AR 600-37, Unfavorable Information (for GOMORs)

Enlisted Ranks Update 16

DA Pam 27-7, Summary Court-Martial Guide

DA Pam 27-10, Judges Benchbook

DA Pam 27-17, Procedural Guide for Article 32(b) Investigations

Chapter 31

Checklists - Military Justice

551
DA Pam 27-173, Trial Procedures

FM 27-1, Legal Guide for Commanders

Combat Law Library, to include references A-K, DA Pam 27-9 (Military Judges, Benchbook, DA Pam 27-10 Trial

Counsel and Defense Counsel , and the Military Justice Digest.

FORMS.

DD Form 457, Investigating Officers Report

DD Form 458, Charge Sheet

DD Form 497, Confinement Order

DA Form 2627, Report of Proceedings Under Art. 15, UCMJ

DA Form 2627-1, Summarized Record of Proceedings Under Art. 15, UCMJ

DA Form 2823, Sworn Statement (100 each).

DA Form 3169-R, Report of Judicial and Disciplinary Activity in the Army

DA Form 3881, Rights Warning

DA Form 4430-R, Report of Results of Trial

DA Form 4916-R, Certificate of Service/Attempted Service

DA Form 4917-R, Advice as to Appellate Rights

DA Form 5110-R, Art. 15 Reconciliation Log

DA Form 5111-R, Summary Court-Martial Rights Notification/ Waiver Statement

DA Form 5112-R, Checklist for Pre-Trial Confinement

Pay Chart

Punishment Worksheets for Article 15s

SFs 1156, 1157, Witness Payment Forms

Local Forms, Form Letters, Disposition Forms Forwarding Charges, Referring Cases to Trial, etc.

Chapter 31

Checklists - Military Justice

552
CHAPTER 33

CHARTER OF THE UNITED NATIONS

Preamble

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED

to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to

mankind, and

to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men

and women and of nations large and small, and

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of

international law can be maintained, and

to promote social progress and better standards of life in large freedom,

AND FOR THESE ENDS

to practice tolerance and live together in peace with one another as good neighbors, and

to unite our strength to maintain international peace and security, and

to ensure by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the

common interest, and

to employ international machinery for the promotion of the economic and social advancement of all peoples,

HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS

Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have

exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations

and do hereby establish an international organization to be known as the United Nations.

CHAPTER I

PURPOSES AND PRINCIPLES

Article 1

The Purposes of the United Nations are:

1. To maintain international peace and security, and to that end: to take effective collective measures for the

prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the

peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law,

adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

2. To develop friendly relations among nations based on respect for the principle of equal rights and selfdetermination of peoples, and to take other appropriate measures to strengthen universal peace;

3. To achieve international cooperation in solving international problems of an economic, social, cultural, or

humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all

without distinction as to race, sex, language, or religion; and

4. To be a center for harmonizing the actions of nations in the attainment of these common ends.

Chapter 32

UN Charter

553
Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the

following Principles.

1. The Organization is based on the principle of the sovereign equality of all its Members.

2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in

good faith the obligations assumed by them in accordance with the present Charter.

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace

and security, and justice, are not endangered.

4. All Members shall refrain in their international relations from the threat or use of force against the territorial

integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United

Nations.

5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present

Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or

enforcement action.

6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with

these Principles so far as may be necessary for the maintenance of international peace and security.

7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are

essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement

under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter

VII.

CHAPTER II

MEMBERSHIP

Article 3

The original Members of the United Nations shall be the states which, having participated in the United Nations

Conference on International Organization at San Francisco, or having previously signed the Declaration by United

Nations of January 1, 1942, sign the present Charter and ratify it in accordance with Article 110.

Article 4

1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained

in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations .

2. The admission of any such state to membership in the United Nations will be effected by a decision of the

General Assembly upon the recommendation of the Security Council.

Article 5

A member of the United Nations against which preventive or enforcement action has been taken by the Security Council

may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the

recommendation of the Security Council. The exercise of these rights and privileges may be restored by the Security

Council.

Article 6

A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be

expelled from the Organization by the General Assembly upon the recommendation of the Security Council.

Chapter 32

UN Charter

554
CHAPTER III

ORGANS

Article 7

1. There are established as the principal organs of the United Nations: a General Assembly, a Security Council, an

Economic and Social Council, a Trusteeship Council, an International Court of Justice, and a Secretariat.

2. Such subsidiary organs as may be found necessary may be established in accordance with the present Charter.

Article 8

The United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and

under conditions of equality in its principal and subsidiary organs.

CHAPTER IV

THE GENERAL ASSEMBLY

Article 9

Composition

1. The General Assembly shall consist of all the Members of the United Nations.

2. Each member shall have not more than five representatives in the General Assembly.

Article 10

Functions and Powers

The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the

powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make

recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or

matters.

Article 11

1. The General Assembly may consider the general principles of cooperation in the maintenance of international

peace and security, including the principles governing disarmament and the regulation of armaments, and may make

recommendations with regard to such principles to the Members or to the Security Council or to both.

2. The General Assembly may discuss any questions relating to the maintenance of international peace and security

brought before it by any Member of the United Nations, or by the Security Council, or by a state which is not a Member

of the United Nations in accordance with Article 35, paragraph 2, and, except as provided in Article 12, may make

recommendations with regard to any such questions to the state or states concerned or to the Security Council or to both.

Any such question on which action is necessary shall be referred to the Security Council by the General Assembly either

before or after discussion.

3. The General Assembly may call the attention of the Security Council to situations which are likely to endanger

international peace and security.

4. The powers of the General Assembly set forth in this Article shall not limit the general scope of Article 10.

Chapter 32

UN Charter

555
Article 12

1. While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the

present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless

the Security Council so requests.

2. The Secretary-General, with the consent of the Security Council, shall notify the General Assembly at each

session of any matters relative to the maintenance of international peace and security which are being dealt with by the

Security Council and shall similarly notify the General Assembly, or the Members of the United Nations if the General

Assembly is not in session, immediately the Security Council ceases to deal with such matters.

Article 13

1. The General Assembly shall initiate studies and make recommendations for the purpose of:

a. promoting international cooperation in the political field and encouraging the progressive development of

international law and its codification;

b. promoting international cooperation in the economic, social, cultural, educational, and health fields, and

assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language,

or religion.

2. The further responsibilities, functions and powers of the General Assembly with respect to matters mentioned in

paragraph 1(b) above are set forth in Chapters IX and X.

Article 14

Subject to the provisions of Article 12, the General Assembly may recommend measures for the peaceful adjustment of

any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations,

including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and

Principles of the United Nations.

Article 15

1. The General Assembly shall receive and consider annual and special reports from the Security Council; these

reports shall include an account of the measures that the Security Council has decided upon or taken to maintain

international peace and security.

2. The General Assembly shall receive and consider reports from the other organs of the United Nations.

Article 16

The General Assembly shall perform such functions with respect to the international trusteeship system as are assigned to

it under Chapters XII and XIII, including the approval of the trusteeship agreements for areas not designated as strategic.

Article 17

1. The General Assembly shall consider and approve the budget of the Organization.

2. The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly.

3. The General Assembly shall consider and approve any financial and budgetary arrangements with specialized

agencies referred to in Article 57 and shall examine the administrative budgets of such specialized agencies with a view to

making recommendations to the agencies concerned.

Chapter 32

UN Charter

556
Article 18

Voting

1. Each member of the General Assembly shall have one vote.

2. Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the

members present and voting. These questions shall include: recommendations with respect to the maintenance of

international peace and security, the election of the non-permanent members of the Security Council, the election of the

members of the Economic and Social Council, the election of members of the Trusteeship Council in accordance with

paragraph 1(c) of Article 86, the admission of new Members to the United Nations, the suspension of the rights and

privileges of membership, the expulsion of Members, questions relating to the operation of the trusteeship system, and

budgetary questions.

3. Decisions on other questions, Composition including the determination of additional categories of questions to

be decided by a two-thirds majority, shall be made by a majority of the members present and voting.

Article 19

A Member of the United Nations which is in arrears in the payment of its financial contributions to the Organization shall

have no vote in the General Assembly if the amount of its arrears equals or exceeds the amount of the contributions due

from it for the preceding two full years. The General Assembly may, nevertheless, permit such a Member to vote if it is

satisfied that the failure to pay is due to conditions beyond the control of the Member.

Article 20

Procedure

The General Assembly shall meet in regular annual sessions and in such special sessions as occasion may require. Special

sessions shall be convoked by the Secretary-General at the request of the Security Council or of a majority of the

Members of the United Nations.

Article 21

The General Assembly shall adopt its own rules of procedure. It shall elect its President for each session.

Article 22

The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions.

CHAPTER V

THE SECURITY COUNCIL

Article 23

Composition

1. The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the

Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of

America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of

the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first

instance to the contribution of Members of the United Nations to the maintenance of international peace and security and

to the other purposes of the Organization, and also to equitable geographical distribution.

Chapter 32

UN Charter

557
2. The non-permanent members of the Security Council shall be elected for a term of two years. In the first election

of the non-permanent members after the increase of the membership of the Security Council from eleven to fifteen, two of

the four additional members shall be chosen for a term of one year. A retiring member shall not be eligible for immediate

re-election.

3. Each member of the Security Council shall have one representative.

Article 24

Functions and Powers

1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security

Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its

duties under this responsibility the Security Council acts on their behalf.

2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the

United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in

Chapters VI, VII, VIII, and XII.

3. The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its

consideration.

Article 25

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance

with the present Charter.

Article 26

In order to promote the establishment and maintenance of international peace and security with the least diversion for

armaments of the worlds human and economic resources, the Security Council shall be responsible for formulating, with

the assistance of the Military Staff Committee referred to in Article 47, plans to be submitted to the Members of the

United Nations for the establishment of a system for the regulation of armaments.

Article 27

Voting

1. Each member of the Security Council shall have one vote.

2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.

3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members

including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under

paragraph 3 of Article 52, a party to a dispute shall abstain from voting.

Article 28

Procedure

1. The Security Council shall be so organized as to be able to function continuously. Each member of the Security

Council shall for this purpose be represented at all times at the seat of the Organization.

2. The Security Council shall hold periodic meetings at which each of its members may, if it so desires, be

represented by a member of the government or by some other specially designated representative.

3. The Security Council may hold meetings at such places other than the seat of the Organization as in its judgment

will best facilitate its work.

Chapter 32

UN Charter

558
Article 29

The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.

Article 30

The Security Council shall adopt its own rules of procedure, including the method of selecting its President.

Article 31

Any Member of the United Nations which is not a member of the Security Council may participate, without vote, in the

discussion of any question brought before the Security Council whenever the latter considers that the interests of that

Member are specially affected.

Article 32

Any Member of the United Nations which is not a member of the Security Council or any state which is not a Member of

the United Nations, if it is a party to a dispute under consideration by the Security Council, shall be invited to participate,

without vote, in the discussion relating to the dispute. The Security Council shall lay down such conditions as it deems

just for the participation of a state which is not a Member of the United Nations.

CHAPTER VI

PACIFIC SETTLEMENT OF DISPUTES

Article 33

1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace

and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial

settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

Article 34

The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise

to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the

maintenance of international peace and security.

Article 35

1. Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article

34, to the attention of the Security Council or of the General Assembly.

2. A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the

General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the

obligations of pacific settlement provided in the present Charter.

3. The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be

subject to the provisions of Articles 11 and 12.

Chapter 32

UN Charter

559
Article 36

1. The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like

nature, recommend appropriate procedures or methods of adjustment.

2. The Security Council should take into consideration any procedures for the settlement of the dispute which have

already been adopted by the parties.

3. In making recommendations under this Article the Security Council should also take into consideration that legal

disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the

provisions of the Statute of the Court.

Article 37

1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that

Article, they shall refer it to the Security Council.

2. If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of

international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of

settlement as it may consider appropriate.

Article 38

Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all the parties to any dispute so

request, make recommendations to the parties with a view to a pacific settlement of the dispute.

CHAPTER VII

ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE

PEACE, AND ACTS OF AGGRESSION

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression

and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to

maintain or restore international peace and security.

Article 40

In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or

deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional

measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or

position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional

measures.

Article 41

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to

its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include

complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of

communication, and the severance of diplomatic relations.

Chapter 32

UN Charter

560
Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be

inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international

peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of

Members of the United Nations.

Article 43

1. All Members of the United Nations, in order to contribute to the maintenance of international peace and security,

undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements,

armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international

peace and security.

2. Such agreement or agreements shall govern the numbers and types of forces. their degree of readiness and

general location, and the nature of the facilities and assistance to be provided.

3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council.

They shall be concluded between the Security Council and Members or between the Security Council and groups of

Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional

processes.

Article 44

When the Security Council has decided to use force it shall, before calling upon a Member not represented on it to

provide armed forces in fulfillment of the obligations assumed under Article 43, invite that Member, if the Member so

desires, to participate in the decisions of the Security Council concerning the employment of contingents of that

Members armed forces.

Article 45

In order to enable the United Nations to take urgent military measures Members shall hold immediately available national

air-force contingents for combined international enforcement action. The strength and degree of readiness of these

contingents and plans for their combined action shall be determined, within the limits laid down in the special agreement

or agreements referred to in Article 43, by the Security Council with the assistance of the Military Staff Committee.

Article 46

Plans for the application of armed force shall be made by the Security Council with the assistance of the Military Staff

Committee.

Article 47

1. There shall be established a Military Staff Committee to advise and assist the Security Council on all questions

relating to the Security Councils military requirements for the maintenance of international peace and security, the

employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament.

2. The Military Staff Committee shall consist of the Chiefs of Staff of the permanent members of the Security

Council or their representatives. Any Member of the United Nations not permanently represented on the Committee shall

be invited by the Committee to be associated with it when the efficient discharge of the Committees responsibilities

requires the participation of that Member in its work.

3. The Military Staff Committee shall be responsible under the Security Council for the strategic direction of any

armed forces placed at the disposal of the Security Council. Questions relating to the command of such forces shall be

worked out subsequently.

Chapter 32

UN Charter

561
4. The Military Staff Committee, with the authorization of the Security Council and after consultation with

appropriate regional agencies, may establish regional subcommittees.

Article 48

1. The action required to carry out the decisions of the Security Council for the maintenance of international peace

and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may

determine.

2. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the

appropriate international agencies of which they are members.

Article 49

The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon

by the Security Council.

Article 50

If preventive or enforcement measures against any state are taken by the Security Council, any other state, whether a

Member of the United Nations or not, which finds itself confronted with special economic problems arising from the

carrying out of those measures shall have the right to consult the Security Council with regard to a solution of those

problems.

Article 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack

occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain

international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be

immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the

Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or

restore international peace and security.

CHAPTER VIII

REGIONAL ARRANGEMENTS

Article 52

1. Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with

such matters relating to the maintenance of international peace and security as are appropriate for regional action,

provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the

United Nations.

2. The Members of the United Nations entering into such arrangements or constituting such agencies shall make

every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional

agencies before referring them to the Security Council.

3. The Security Council shall encourage the development of pacific settlement of local disputes through such

regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the

Security Council.

4. This Article in no way impairs the application of Articles 34 and 35.

Chapter 32

UN Charter

562
Article 53

1. The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement

action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies

without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in

paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of

aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments

concerned, be charged with the responsibility for preventing further aggression by such a state.

2. The term enemy state as used in paragraph 1 of this Article applies to any state which during the Second World

War has been an enemy of any signatory of the present Charter.

Article 54

The Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional

arrangements or by regional agencies for the maintenance of international peace and security.

CHAPTER IX

INTERNATIONAL ECONOMIC AND SOCIAL CO-OPERATION

Article 55

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly

relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United

Nations shall promote:

(a) higher standards of living, full employment, and conditions of economic and social progress and development;

(b) solutions of international economic, social, health, and related problems; and international cultural and

educational co-operation; and

(c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to

race, sex, language, or religion.

Article 56

All Members pledge themselves to take joint and separate action in cooperation with the Organization for the

achievement of the purposes set forth in Article 55.

Article 57

1. The various specialized agencies, established by intergovernmental agreement and having wide international

responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields,

shall be brought into relationship with the United Nations in accordance with the provisions of Article 63.

2. Such agencies thus brought into relationship with the United Nations are hereinafter referred to as specialized

agencies.

Article 58

The Organization shall make recommendations for the coordination of the policies and activities of the specialized

agencies.

Chapter 32

UN Charter

563
Article 59

The Organization shall, where appropriate, initiate negotiations among the states concerned for the creation of any new

specialized agencies required for the accomplishment of the purposes set forth in Article 55.

Article 60

Responsibility for the discharge of the functions of the Organization set forth in this Chapter shall be vested in the

General Assembly and, under the authority of the General Assembly, in the Economic and Social Council, which shall

have for this purpose the powers set forth in Chapter X.

CHAPTER X

THE ECONOMIC AND SOCIAL COUNCIL

Article 61

Composition

1. The Economic and Social Council shall consist of fifty-four Members of the United Nations elected by the

General Assembly.

2. Subject to the provisions of paragraph 3, eighteen members of the Economic and Social Council shall be elected

each year for a term of three years. A retiring member shall be eligible for immediate re-election.

3. At the first election after the increase in the membership of the Economic and Social Council from twenty-seven

to fifty-four members, in addition to the members elected in place of the nine members whose term of office expires at the

end of that year, twenty-seven additional members shall be elected. Of these twenty-seven additional members, the term

of office of nine members so elected shall expire at the end of one year, and of nine other members at the end of two

years, in accordance with arrangements made by the General Assembly.

4. Each member of the Economic and Social Council shall have one representative.

Article 62

Functions and Powers

1. The Economic and Social Council may make or initiate studies and reports with respect to international

economic, social, cultural, educational, health, and related matters and may make recommendations with respect to any

such matters to the General Assembly, to the Members of the United Nations, and to the specialized agencies concerned.

2. It may make recommendations for the purpose of promoting respect for, and observance of, human rights and

fundamental freedoms for all.

3. It may prepare draft conventions for submission to the General Assembly, with respect to matters falling within

its competence.

4. It may call, in accordance with the rules prescribed by the United Nations, international conferences on matters

falling within its competence.

Article 63

1. The Economic and Social Council may enter into agreements with any of the agencies referred to in Article 57,

defining the terms on which the agency concerned shall be brought into relationship with the United Nations. Such

agreements shall be subject to approval by the General Assembly.

Chapter 32

UN Charter

564
2. It may coordinate the activities of the specialized agencies through consultation with and recommendations to

such agencies and through recommendations to the General Assembly and to the Members of the United Nations.

Article 64

1. The Economic and Social Council may take appropriate steps to obtain regular reports from the specialized

agencies. It may make arrangements with the Members of the United Nations and with the specialized agencies to obtain

reports on the steps taken to give effect to its own recommendations and to recommendations on matters falling within its

competence made by the General Assembly.

2. It may communicate its observations on these reports to the General Assembly .

Article 65

The Economic and Social Council may furnish information to the Security Council and shall assist the Security Council

upon its request.

Article 66

1. The Economic and Social Council shall perform such functions as fall within its competence in connection with

the carrying out of the recommendations of the General Assembly.

2. It may, with the approval of the General Assembly, perform services at the request of Members of the United

Nations and at the request of specialized agencies.

3. It shall perform such other functions as are specified elsewhere in the present Charter or as may be assigned to it

by the General Assembly.

Article 67

Voting

1. Each member of the Economic and Social Council shall have one vote.

2. Decisions of the Economic and Social Council shall be made by a majority of the members present and voting.

Article 68

Procedure

The Economic and Social Council shall set up commissions in economic and social fields and for the promotion of human

rights, and such other commissions as may be required for the performance of its functions.

Article 69

The Economic and Social Council shall invite any Member of the United Nations to participate, without vote, in its

deliberations on any matter of particular concern to that Member.

Article 70

The Economic and Social Council may make arrangements for representatives of the specialized agencies to participate,

without vote, in its deliberations and in those of the commissions established by it, and for its representatives to

participate in the deliberations of the specialized agencies.

Chapter 32

UN Charter

565
Article 71

The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations

which are concerned with matters within its competence. Such arrangements may be made with international

organizations and, where appropriate, with national organizations after consultation with the Member of the United

Nations concerned.

Article 72

1. The Economic and Social Council shall adopt its own rules of procedure, including the method of selecting its

President.

2. The Economic and Social Council shall meet as required in accordance with its rules, which shall include

provision for the convening of meetings on the request of a majority of its members.

CHAPTER XI

DECLARATION REGARDING NON-SELF-GOVERNING TERRITORIES

Article 73

Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples

have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these

territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of

international peace and security established by the present Charter, the well-being of the inhabitants of these territories,

and, to this end:

(a) to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and

educational advancement, their just treatment, and their protection against abuses;

(b) to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in

the progressive development of their free political institutions, according to the particular circumstances of each territory

and its peoples and their varying stages of advancement;

(c) to further international peace and security;

(d) to promote constructive measures of development, to encourage research, and to cooperate with one another and,

when and where appropriate, with specialized international bodies with a view to the practical achievement of the social,

economic, and scientific purposes set forth in this Article; and

(e) to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and

constitutional considerations may require, statistical and other information of a technical nature relating to economic,

social, and educational conditions in the territories for which they are respectively responsible other than those territories

to which Chapter XII and XIII apply.

Article 74

Members of the United Nations also agree that their policy in respect of the territories to which this Chapter applies, no

less than in respect of their metropolitan areas, must be based on the general principle of good-neighborliness, due

account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters.

Chapter 32

UN Charter

566
CHAPTER XII

INTERNATIONAL TRUSTEESHIP SYSTEM

Article 75

The United Nations shall establish under its authority an international trusteeship system for the administration and

supervision of such territories as may be placed thereunder by subsequent individual agreements. These territories are

hereinafter referred to as trust territories.

Article 76

The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article

1 of the present Charter, shall be:

(a) to further international peace and security;

(b) to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories,

and their progressive development towards self-government or independence as may be appropriate to the particular

circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be

provided by the terms of each trusteeship agreement;

(c) to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex,

language, or religion, and to encourage recognition of the interdependence of the peoples of the world; and

(d) to ensure equal treatment in social, economic, and commercial matters for all Members of the United Nations

and their nationals and also equal treatment for the latter in the administration of justice without prejudice to the

attainment of the foregoing objectives and subject to the provisions of Article 80.

Article 77

1. The trusteeship system shall apply to such territories in the following categories as may be placed thereunder by

means of trusteeship agreements:

a. territories now held under mandate;

b. territories which may be detached from enemy states as a result of the Second World War, and

c. territories voluntarily placed under the system by states responsible for their administration.

2. It will be a matter for subsequent agreement as to which territories in the foregoing categories will be brought

under the trusteeship system and upon what terms.

Article 78

The trusteeship system shall not apply to territories which have become Members of the United Nations, relationship

among which shall be based on respect for the principle of sovereign equality.

Article 79

The terms of trusteeship for each territory to be placed under the trusteeship system, including any alteration or

amendment, shall be agreed upon by the states directly concerned, including the mandatory power in the case of

territories held under mandate by a Member of the United Nations, and shall be approved as provided for in Articles 83

and 85.

Chapter 32

UN Charter

567
Article 80

1. Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79, and 81, placing

each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall

be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of

existing international instruments to which Members of the United Nations may respectively be parties.

2. Paragraph 1 of this Article shall not be interpreted as giving grounds for delay or postponement of the

negotiation and conclusion of agreements for placing mandated and other territories under the trusteeship system as

provided for in Article 77.

Article 81

The trusteeship agreement shall in each case include the terms under which the trust territory will be administered and

designate the authority which will exercise the administration of the trust territory. Such authority, hereinafter called the

administering authority, may be one or more states or the Organization itself.

Article 82

There may be designated, in any trusteeship agreement, a strategic area or areas which may include part or all of the trust

territory to which the agreement applies, without prejudice to any special agreement or agreements made under Article

43.

Article 83

1. All functions of the United Nations relating to strategic areas, including the approval of the terms of the

trusteeship agreements and of their alteration or amendment, shall be exercised by the Security Council.

2. The basic objectives set forth in Article 76 shall be applicable to the people of each strategic area.

3. The Security Council shall, subject to the provisions of the trusteeship agreements and without prejudice to

security considerations, avail itself of the assistance of the Trusteeship Council to perform those functions of the United

Nations under the trusteeship system relating to political. economic, social, and educational matters in the strategic areas.

Article 84

It shall be the duty of the administering authority to ensure that the trust territory shall play its part in the maintenance of

international peace and security. To this end the administering authority may make use of volunteer forces, facilities, and

assistance from the trust territory in carrying out the obligations towards the Security Council undertaken in this regard by

the administering authority, as well as for local defense and the maintenance of law and order within the trust territory.

Article 85

1. The functions of the United Nations with regard to trusteeship agreements for all areas not designated as

strategic, including the approval of the terms of the trusteeship agreements and of their alteration or amendment, shall be

exercised by the General Assembly.

2. The Trusteeship Council, operating under the authority of the General Assembly, shall assist the General

Assembly in carrying out these functions.

Chapter 32

UN Charter

568
CHAPTER XIII

THE TRUSTEESHIP COUNCIL

Article 86

Composition

1. The Trusteeship Council shall consist of the following Members of the United Nations:

a. those Members administering trust territories;

b. such of those Members mentioned by name in Article 23 as are not administering trust territories; and

c. as many other Members elected for three-year terms by the General Assembly as may be necessary to

ensure that the total number of members of the Trusteeship Council is equally divided between those Members of the

United Nations which administer trust territories and those which do not.

2. Each member of the Trusteeship Council shall designate one specially qualified person to represent it therein.

Article 87

Functions and Powers

The General Assembly and, under its authority, the Trusteeship Council, in carrying out their functions, may:

(a) consider reports submitted by the administering authority;

(b) accept petitions and examine them in consultation with the administering authority;

(c) provide for periodic visits to the respective trust territories at times agreed upon with the administering authority;

and

(d) take these and other actions in conformity with the terms of the trusteeship agreements.

Article 88

The Trusteeship Council shall formulate a questionnaire on the political, economic, social, and educational advancement

of the inhabitants of each trust territory, and the administering authority for each trust territory within the competence of

the General Assembly shall make an annual report to the General Assembly upon the basis of such questionnaire.

Article 89

Voting

1. Each member of the Trusteeship Council shall have one vote.

2. Decisions of the Trusteeship Council shall be made by a majority of the members present and voting.

Article 90

Procedure

1. The Trusteeship Council shall adopt its own rules of procedure, including the method of selecting its President.

2. The Trusteeship Council shall meet as required in accordance with its rules, which shall include provision for the

convening of meetings on the request of a majority of its members.

Chapter 32

UN Charter

569
Article 91

The Trusteeship Council shall, when appropriate, avail itself of the assistance of the Economic and Social Council and of

the specialized agencies in regard to matters with which they are respectively concerned.

CHAPTER XIV

THE INTERNATIONAL COURT OF JUSTICE

Article 92

The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in

accordance with the annexed Statute which is based upon the Statute of the Permanent Court of International Justice and

forms an integral part of the present Charter.

Article 93

1. All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.

2. A state which is not a Member of the United Nations may become a party to the Statute of the International

Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the

Security Council.

Article 94

1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice

in any case to which it is a party.

2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court,

the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or

decide upon measures to be taken to give effect to the judgment.

Article 95

Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their

differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future.

Article 96

1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory

opinion on any legal question.

2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the

General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their

activities.

Chapter 32

UN Charter

570
CHAPTER XV

THE SECRETARIAT

Article 97

The Secretariat shall comprise a Secretary-General and such staff as the Organization may require. The Secretary-General

shall be appointed by the General Assembly upon the recommendation of the Security Council. He shall be the chief

administrative officer of the Organization.

Article 98

The Secretary-General shall act in that capacity in all meetings of the General Assembly, of the Security Council, of the

Economic and Social Council, and of the Trusteeship Council, and shall perform such other functions as are entrusted to

him by these organs. The Secretary-General shall make an annual report to the General Assembly on the work of the

Organization.

Article 99

The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten

the maintenance of international peace and security.

Article 100

1. In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from

any government or from any other authority external to the Organization. They shall refrain from any action which might

reflect on their position as international officials responsible only to the Organization.

2. Each Member of the United Nations undertakes to respect the exclusively international character of the

responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their

responsibilities .

Article 101

1. The staff shall be appointed by the Secretary-General under regulations established by the General Assembly.

2. Appropriate staffs shall be permanently assigned to the Economic and Social Council, the Trusteeship Council,

and, as required, to other organs of the United Nations. These staffs shall form a part of the Secretariat.

3. The paramount consideration in the employment of the staff and in the determination of the conditions of service

shall be the necessity of securing the highest standards of efficiency, competence, and integrity. Due regard shall be paid

to the importance of recruiting the staff on as wide a geographical basis as possible.

CHAPTER XVI

MISCELLANEOUS PROVISIONS

Article 102

Chapter 32

UN Charter

571
1. Every treaty and every international agreement entered into by any Member of the United Nations after the

present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.

2. No party to any such treaty or international agreement which has not been registered in accordance with the

provisions of paragraph I of this Article may invoke that treaty or agreement before any organ of the United Nations.

Article 103

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and

their obligations under any other international agreement, their obligations under the present Charter shall prevail.

Article 104

The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the

exercise of its functions and the fulfillment of its purposes.

Article 105

1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are

necessary for the fulfillment of its purposes.

2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy

such privileges and immunities as are necessary for the independent exercise of their functions in connection with the

Organization.

3. The General Assembly may make recommendations with a view to determining the details of the application of

paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.

CHAPTER XVII

TRANSITIONAL SECURITY ARRANGEMENTS

Article 106

Pending the coming into force of such special agreements referred to in Article 43 as in the opinion of the Security

Council enable it to begin the exercise of its responsibilities under Article 42, the parties to the Four-Nation Declaration,

signed at Moscow October 30, 1943, and France, shall, in accordance with the provisions of paragraph 5 of that

Declaration, consult with one another and as occasion requires with other Members of the United Nations with a view to

such joint action on behalf of the Organization as may be necessary for the purpose of maintaining international peace and

security.

Article 107

Nothing in the present Charter shall invalidate or preclude action, in relation to any state which during the Second World

War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the

Governments having responsibility for such action.

Chapter 32

UN Charter

572
CHAPTER XVIII

AMENDMENTS

Article 108

Amendments to the present Charter shall come into force for all Members of the United Nations when they have been

adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective

constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the

Security Council.

Article 109

1. A General Conference of the Members of the United Nations for the purpose of reviewing the present Charter

may be held at a date and place to be fixed by a two-thirds vote of the members of the General Assembly and by a vote of

any seven members of the Security Council. Each Member of the United Nations shall have one vote in the conference.

2. Any alteration of the present Charter recommended by a two-thirds vote of the conference shall take effect when

ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations

including all the permanent members of the Security Council.

3. If such a conference has not been held before the tenth annual session of the General Assembly following the

coming into force of the present Charter, the proposal to call such a conference shall be placed on the agenda of that

session of the General Assembly, and the conference shall be held if so decided by a majority vote of the members of the

General Assembly and by a vote of any seven members of the Security Council.

CHAPTER XIX

RATIFICATION AND SIGNATURE

Article 110

1. The present Charter shall be ratified by the signatory states in accordance with their respective constitutional

processes.

2. The ratifications shall be deposited with the Government of the United States of America, which shall notify all

the signatory states of each deposit as well as the Secretary-General of the Organization when he has been appointed.

3. The present Charter shall come into force upon the deposit of ratifications by the Republic of China, France, the

Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of

America, and by a majority of the other signatory states. A protocol of the ratifications deposited shall thereupon be

drawn up by the Government of the United States of America which shall communicate copies thereof to all the signatory

states.

4. The states signatory to the present Charter which ratify it after it has come into force will become original

Members of the United Nations on the date of the deposit of their respective ratifications.

Article 111

The present Charter, of which the Chinese, French, Russian, English, and Spanish texts are equally authentic, shall remain

deposited in the archives of the Government of the United States of America. Duly certified copies thereof shall be

transmitted by that Government to the Governments of the other signatory states.

Chapter 32

UN Charter

573
IN FAITH WHEREOF the representatives of the Governments of the United Nations have signed the present Charter.

DONE at the city of San Francisco the twenty-sixth day of June, one thousand nine hundred and forty-five.

Chapter 32

UN Charter

574
GLOSSARY

AAA Army Audit Agency; Anti-Air

Defense Artillery

AADC Area Air Defense Coordinator

AADCOM Army Air Defense Command

AADCOORD Army Air Defense Coordinator

AATF Air Assault Task Force

ABCA Australian, British, Canadian,

American

ABCC Airborne Battlefield Command &

Control

ABL Ammunition Basic Load

ABN Airborne

AC Active Component

ACA Airspace Control Authority

ACC Air Combat Command

ACofS Assistant Chief of Staff

ACMR Army Court of Military Review

ACP Army Country Profiles

ACR Armored Cavalry Regiment

ACSA Acquisition & Cross-Servicing

Agreement

AD Active Duty; Air Defense

ADA Air Defense Artillery

ADC Area Damage Control

ADC-M Asst Division Commander-Maneuver

ADC-S Asst Division Commander-Support

ADCON Administrative Control

ADDS Army Data Distribution System

ADP Automated Data Processing

ADSW Active Duty Special Work

ADT Active Duty for Training

AE Aeromedical Evacuation

AECC Aeromedical Evacuation Control

Center

AELT Aeromedical Evacuation Liaison

Team

AES Airdrop Equipment Support

AF Air Force

AFFS Army Field Feeding System

AFARS Army Federal Acquisition Regulation

Supplement

AFSOC Air Force Special Operations

Command

AG Adjutant General

AGR Active (duty) Guard Reserve

AID Agency for International

Development

AJAG Assistant Judge Advocate General

ALO Air Liaison Officer

ALOC Air Lines of Communication

AMC At My Command; Army Material

Command; Air Mobility Command

AMO Automation Management Office

ANG Air National Guard

ANGLICO Air & Naval Gunfire Liaison

Company

AO Area of Operations

AOC Air Operations Center

AOD Area-Oriented Depots

AOR Area of Responsibility

APC Armored Personnel Carrier

APOD (Aerial POD) Aerial Port of

Debarkation

APOE Aerial Port of Embarkation

AR Army Regulation

ARC American Red Cross

ARFOR Army Forces

ARNG Army National Guard

ARRC Allied Rapid Reaction Corps

ARSOC Army Special Operations Command

ARSOF Army Special Operations Forces

ARTEP Army Training and Evaluation

Program

ASAP As Soon As Possible

ASG Area Support Group

ASIC All Source Intelligence Center

ASP Ammunition Supply Point

AT Antiterrorism; Antitank; Annual

Training

A&T,P&I Administrative and Technical Staff,

Privileges and Immunities

ATC Air Traffic Control

ATF Alcohol, Tobacco, & Firearms

AUTODIN Automatic Digital Network

AVCRAD Aviation Classification Repair

Activity Depot (ARNG)

AVIM Aviation Intermediate Maintenance

AVN Aviation

AVUM Aviation Unit Maintenance

AWACS Airborne Warning and Control

System

AWOL Absent Without Leave

AWRS Army War Reserve Sustainment

BAS Battlefield Automated Systems

BB Break Bulk

BBP Break Bulk Points

BCOC Base Cluster Operations Center

BCTP Battle Command Training Program

BDE Brigade

BDOC Base Defense Operations Center

BDU Battle Dress uniform

BN Battalion

BOMREP Bombing Report

BSB Base Support Battalion

BOS Battlefield Operating Systems

BPS Basic PSYOP Study

575 Glossary
C2 Command & Control

C2I Command, Control, & Intelligence

C3 Command, Control, &

Communications

C3I Command, Control, Communications,

& Intelligence

C4 Command, Control, Communications,

& Computers

CA Civil Affairs

CAAF Court of Appeals for the Armed

Forces

CAG Civil Affairs Group

CALL Center for Army Lessons Learned

CARE Cooperative for Assistance & Relief

Everywhere

CAS Close Air Support

CAV Cavalry

CCIR Commanders Critical Information

Requirements

CCP Civilian Collection Point

CCT Combat Control Team

CD Counterdrug

CDC Center for Disease Control

CDS Container Delivery System

CE Corps of Engineers

CENTCOM Central Command

CEP Circular Error Probable

CFA Covering Force Area

CFL Coordinated Fire Line

CFZ Critical Friendly Zone

CG Commanding General

CGSC Command & General Staff College

CINC Commander in Chief

CJA Command Judge Advocate

CI Civilian Internee; counter-intelligence

CIA Central Intelligence Agency

CID Criminal Investigation Division

CIF Central Issue Facility

CIMIC Civil-Military Cooperation

CJCS Chairman, Joint Chiefs of Staff

CJTF Combined Joint Task Force or

Commander, JTF

CMCA Court-Martial Convening Authority

CMO Civil-Military Operations

CMOC Civil-Military Operations Center

CMTC Combined Maneuver Training Center

CO Commanding Officer; Conscientious

Objector

COA Course of Action

COM Casualty Operations Management

COCOM Combatant Command

COMA Court of Military Appeals

COMMZ Communications Zone

COMSEC Communications Security

CONOPS Continuous Operations

CONPLAN Concept Plan

CONUS Continental United States

CONUSA Continental United States Army

COR Contracting Officers Representative

COS Chief of Station

COSCOM Corps Support Command

CP Command Post

CPX Command Post Exercise

CS Combat Support

CSAR Combat Search and Rescue

CSB Combat Support Battalion

CSE Combat Support Equipment

CSH Combat Support Hospital

CSM Command Sergeant Major

CSP Contracting Support Plan

CSR Controlled Supply Rate

CSS Combat Service Support

CSSAMO Combat Service Support Automation

Management Office

CT Counterterrorism

CTA Common Table of Allowances

CTF Combined Task Force

CV Combat Vehicle

CW Chemical Weapons

CWC Chemical Weapons Convention

CZ Combat Zone

DA Department of the Army;

Development Assistance

DACG Departure Airfield Control Group

DAD Defense Appellate Division

DAO Defense Attaché Office

DART Disaster Assistance Response Team

DC Defense Counsel

DC Dislocated Civilian

DCM Deputy Chief of Mission

DCSLOG Deputy Chief of Staff for Logistics

DCSOPS Deputy Chief of Staff for Operations

and Plans

DCSPER Deputy Chief of Staff for Personnel

DEA Drug Enforcement Administration

DFCP DISCOM Forward Command Post

DIA Defense Intelligence Agency

DIAM Defense Intelligence Agency Manual

DISCOM Division Support Command

DIVARTY Division Artillery

DJMS Defense Joint Military Pay System

DLI Defense Language Institute

DMAIN Division Main Area

DMPI Desired Mean Point of Impact

DOC Division Operations Center

DOC Department of Commerce

DoD Department of Defense

DoJ Department of Justice

DoS Department of State; Days of Supply

DOT Department of Transportation

DRB Division Ready Brigade

DREAR Division Rear Area

Glossary 576
DRF Division Ready Force

DS Direct Support

DSA Division Support Area

DSCA Defense Security Cooperation Agency

DSJA Deputy Staff Judge Advocate

DSOC Division Support Operations Center

DSU Direct Support Unit

DTG Date Time Group

DTOC Division Tactical Operations Center

DX Direct Exchange

DZ Drop Zone

EA Engagement Area; each

FLOT Forward Line of Troops

HALO High Altitude Low Opening

HEP-T High Explosive Plastic Tracer

E&E Evasion & Escape

EAC Echelons Above Corps

EAD Echelons Above Division

EBS Emergency Broadcast System

EDRE Emergency Deployment Readiness

Exercise

EEP Embassy Evacuation Plan

ENDEX End of Exercise

EO Executive Order; Equal Opportunity

EOC Emergency Operations Center

EOD Explosive Ordnance Disposal

EPW Enemy Prisoner of War

EOD Explosive Ordnance Disposal

ESF Economic Support Fund

ETA Estimated Time of Arrival

EUCOM U.S. European Command

EW Electronic Warfare

FA Field Artillery

FA Functional Area

FAA Federal Aviation Administration;

Forward Assembly Area

FAC Forward Air Controller

FANS Friendly/Allied Nation Support

FAO Food and Agriculture Support

FAR Federal Acquisition Regulation

FASCAM Family of Scatterable Mines

FBI Federal Bureau of Investigation

FBIS Foreign Broadcast Information

Service

FCA Foreign Claims Act

FCZ Forward Combat Zone

FDC Fire Direction Center

FEBA Forward Edge of the Battle Area

FEMA Federal Emergency Management

Agency

FID Foreign Internal Defense

FIST Fire Support Team

FLIR Forward Looking Infrared

FM Field Manual

FN Foreign Nation

FNS Foreign Nation Support

FOA Field Operating Agency

FOB Forward Operating Base

FORSCOM Forces Command

FSE Fire Support Element

FSO Fire Support Officer

FSOP Field Standing Operating Procedures

FSU Finance Support Unit

FTM Full-TIme Manning (High Priority

NG Units)

FTTD Full-Time Training Duty (NG Title 32

Status)

FTX Field Training Exercise

FYI For Your Information

G-1 (Division) Asst Chief of Staff, Personnel

G-2 (Division) Asst Chief of Staff, Intelligence

G-3 (Division) Asst Chief of Staff, Operations &

Plans

G-4 (Division) Asst Chief of Staff, Logistics

G-5 (Division) Asst Chief of Staff, Civil Affairs

GAD Government Appellate Division

GCMCA General Court-Martial Convening

Authority

GJA Group Judge Advocate

GPS Global Positioning System

GS General Support

GSR General Support Reinforcing

GSR Ground Surveillance Radar

GSU General Support Unit

GUARDRAIL Special Electronic Mission Aircraft

HA Humanitarian Assistance

HAHO High Altitude High Opening

HAP Humanitarian Assistance Program

HAST Humanitarian Assistance Survey

Team

H/CA Humanitarian/Civic Assistance

HD Heavy Drop

HE High Explosive

HEAT (round) High-Explosive Anti-Tank

HEMTT Heavy Expanded Mobility Tactical

Truck

HHB Headquarters & Headquarters Battery

HHC Headquarters & Headquarters

Company

HHT Headquarters & Headquarters Troop

HET Heavy Equipment Transporter

HLZ Helicopter Landing Zone

HMMWV High-Mobility Multipurpose Wheeled

Vehicle

HN Host Nation

HNS Host Nation Support

HOC Humanitarian Operations Center

HPT High Payoff Target

HQ Headquarters

HQDA Headquarters, Department of the

Army

HSS Health Service Support

577 Glossary
HUMINT Human Intelligence

HVT High Value Target

I&S Interrogation & Surveillance

IAW In Accordance With

ICM Improved Conventional Munitions

ICRC International Committee of the Red

Cross

ID Card Identification Card

IDAD Internal Defense and Development

IDT Inactive Duty Training (NG Federal

Status Training Performed while NOT

on Active Duty)

IFF Identification, Friend or Foe

IFR Instrument Flight Rules

IFV Infantry Fighting Vehicle

IG Inspector General

IMA Individual Mobilization Augmentee

IMINT Imagery Intelligence

INS Immigration & Naturalization Service

IO Investigating Officer

IPB Intelligence Preparation of the

Battlefield

IPOA Intelligence Preparation of the

Operational Area

IPW Prisoner of War Interrogation

IR Information Requirements

ISB Intermediate Staging Base

ITV Improved TOW Vehicle

J-1 Manpower & Personnel Directorate of

a joint staff

J-2 Intelligence Directorate of a joint staff

J-3 Operations Directorate of a joint staff

J-4 Logistics Directorate of a joint staff

J-5 Plans Directorate of a joint staff

J-6 Command, Control, Communications,

Computer Systems Directorate of a

joint staff

JA Judge Advocate

JAG Judge Advocate General

JAAP Joint Airborne Advance Party

JAAT Joint Air Attack Team

JAGSO Judge Advocate General Service

Organization

JCS Joint Chiefs of Staff

JESS Joint Exercise Simulation System

JFACC Joint Force Air Component

Commander

JFC Joint Force Commander

JFCOM Joint Forces Command

JFLCC Joint Force Land Component

Commander

JIB Joint Information Bureau

JIC Joint Information Committee

JMC Joint Movement Center

JMRO Joint Medical Regulating Office

JOA Joint Operations Area

JOPES Joint Operations Planning System

JP-4 Jet Propulsion Fuel, Type 4

JRA Joint Rear Area

JRAC Joint Rear Area Coordinator

JRTC Joint Readiness Training Center

JRX Joint Readiness Exercise

JSAC Joint State Area Command

JSCP Joint Strategic Capabilities Plan

JSEAD Joint Suppression of Enemy Air

Defense

JSOA Joint Special Operations Area

JSOC Joint Special Operations Command

JSOTF Joint Special Operations Task Force

JSPS Joint Strategic Planning System

JTF Joint Task Force

KATUSA Korean Augmentation to the U.S.

Army

KIA Killed In Action

KTO Kuwait Theater of Operations

LAAWS Legal Automation Army-Wide

System

LAN Local Area Network

LAW Light Antitank Weapon

LAPES Low Altitude Parachute Extraction

System

LBE Load Bearing Equipment

LCE Load Carrying Equipment

LD/LC Line of Departure/Line of Contact

LEA Law Enforcement Authority

LO Liaison Officer

LOC Lines of Communication

LOGCAP Logistics Civilian Augmentation

Program

LOGPAC Logistics Package

LOGSEC Logistics Security

LOS Line of Sight; Law of Sea

LP Listening Post

LRF Laser Range Finder

LRS Long Range Surveillance

LRSD Long Range Surveillance Detachment

LRSU Long Range Surveillance Unit

LSA Life Support Area

LSC Legal Services Command

LSC Life Support Center

LSO Legal Support Organization

LTACFIRE Lightweight Tactical Fire Direction

System

LZ Landing Zone

MA Mortuary Affairs

MAAG Military Assistance Advisory Group

MAC Military Airlift Command

MACOM Major Army Command

MBA Main Battle Area

MCA Military Civic Action

MCC Movement Control Center

MCM Manual for Courts-Martial

Glossary 578
MCS Maneuver Control System

MECH Mechanized

MEDEVAC Medical Evacuation

MEDLOG Medical Logistics

MEDRETE Medical Readiness Training Exercise

METL Mission Essential Task List

METT-T Mission, Enemy, Terrain, Troops,

Time Available

METT-T-P METT-T Plus Political Factors

MFT Mighty Fine Trial

MI Military Intelligence

MIA Missing In Action

MILGP Military Group

MIL-TO-MIL Military to Military

MJT Military Judge Team

MLRS Multiple Launch Rocket System

MMC Materiel Management Center

MOBEX Mobility Exercise

MOS Military Occupational Specialty

MOPP Mission-Oriented Protective Posture

MOUT Military Operations on Urbanized

Terrain

MP Military Police

PSS Personnel Service Support

MPI Military Police Investigations

MRE Meal, Ready to Eat

MRL Multiple Rocket Launcher

MSE Mobile Subscriber Equipment

MSG Military Support Group

MSR Main Supply Route

MTF Medical Treatment Facility

MTOE Modified Table of Organization &

Equipment

MTP Mission Training Plan

MTT Mobile Training Team

NAC North Atlantic Council

NATO North Atlantic Treaty Organization

NBC Nuclear, Biological, Chemical

NCA National Command Authority

(President & SECDEF)

NEO Noncombatant Evacuation Operation

NFA No Fire Area

NFL No Fire Line

NG National Guard

NGB National Guard Bureau

NGF Naval Gun Fire

NGO Non-governmental Organization

NLT No Later Than

NORAD North American Air Defense

Command

NOVAD National Voluntary Organizations

Active in Disaster

NSA National Security Agency

NSC National Security Council

NTC National Training Center

NVD Night Vision Device

O&M Operations & Maintenance

O/C Observer/Controller

OCOKA Observation & Fields of Fire, Cover

& Concealment, Obstacles, Key

Terrain, and Avenues of Approach &

Military Corridors

OCONUS Outside Continental Limits of the U.S.

ODA Office for Disaster Assistance

ODT Overseas Deployment Training

OFDA Office of Foreign Disaster Assistance

OHDCA Overseas Humanitarian Disaster &

Civic Aid

OJT On-the-Job-Training

OP Observation Post

OPCOM Operational Command

OPCON Operational Control

OPLAN Operations Plan

OPLAW Operational Law

OPLAWYER Operational Law Attorney

OPORDER Operations Order

OPSEC Operational Security

ORF Operational Readiness Float

PA Public Affairs

PAC Personnel Administrative Center

PACOM Pacific Command

PAO Public Affairs Office

PCA Personnel Claims Act;

PCA Per Curiam Affirmed

PCO Peacetime Contingency Operation

PEC Professional Education Center

PERSCOM Personnel Command

PIR Priority Intelligence Requirements

PJA Post Judge Advocate

PKO Peacekeeping Operation

PL Phase Line

PLL Prescribed Load List

PMO Provost Marshal Office

POC Point of Contact

POL Petroleum, Oil, Lubricants

POLAD Political Advisor

POM Preparation for Overseas Movement

POMCUS Pre-positioning of Material

Configured to Unit Sets

PRC Populace & Resources Control

PSC Personnel Service Company

PYSOP Psychological Operations

PVO Private Voluntary Organization

PW Prisoner of War

PZ Pickup Zone

PWRMS Pre-positioned War Reserve Material

Stocks

QSTAG Quadripartite Standardization

Agreement (see ABCA)

RAA Rear Assembly Area

RAP Rocket-Assisted Projectile

RC Reserve Component

579 Glossary
RCU Remote Control Unit

RCZ Rear Combat Zone

RCA Riot Control Agent

REDCON Readiness Condition

REFORGER Return of Forces to Germany

REMFS Rear Echelon Pukes

RFA Restrictive Fire Area

RFL Restrictive Fire Line

RJA Regimental Judge Advocate

RLC Regional Legal Center

ROC Rear Operations Center

ROE Rules of Engagement

ROM Refuel on the Move

ROZ Rear Operations Zone

RP Release Point

RSC SJA Regional Support Command Staff

Judge Advocate

RSO Regional Security Officer

RSR Required Supply Rate

S-1 Adjutant

S-2 Intelligence Officer

S-3 Operations and Training Officer

S-4 Supply Officer

S-5 Civil Affairs Officer

S&S Supply & Service

SA Security Assistance; Secretary of the

Army

SAD State Active Duty (Guard Units Order

to State Service)

SAC Stand Alone Capability; Special

Agent in Charge

TAJAG The Assistant Judge Advocate

General

SAM Surface to Air Missile

SAMS School of Advanced Military Studies

SAO Security Assistance Organization

SAR Search & Rescue

SCI Sensitive Compartmented Information

SCM Summary Court-Martial

SCMCA Summary Court-Martial Convening

Authority

S/D Self-Defense

SECDEF Secretary of Defense

SERE Survival, Evasion, Resistance, Escape

SF Special Forces

SFOB Special Forces Operational Base

SFOD Special Forces Operational

Detachment

SGS Secretary of the General Staff

SHAPE Supreme HQ Allied Powers Europe

SIDPERS Standard Installation/Division

Personnel System

SITREP Situation Report

SJA Staff Judge Advocate

SLAR Side-Looking Airborne Radar

SO Special Operations

SOCOM Special Operations Command

SOF Special Operations Forces

SOFA Status of Forces Agreement

SOMA Status of Mission Agreement

SOP Standing Operating Procedure

SME Subject Matter Expert

SPCM Special Court-Martial

SPCMCA Special Court-Martial Convening

Authority

SPT Support

SOUTHCOM Southern Command

SSCR Single-Service Claims Responsibility

SSCRA Soldiers & Sailors Civil Relief Act

STANAG Standardization Agreement

STANAG Standard NATO Agreement

STARC State Area Command

SWO Staff Weather Officer

TA Theater Army; Table of Allowances

TAA Tactical Assembly Area

TAACOM Theater Army Area Command

TACAIR Tactical Air

TAC CP Tactical Command Post

TACFIRE Tactical Fire Control

TACON Tactical Control

TACSAT Tactical Satellite

TAI Target Area of Interest

TALO Tactical Airlift Liaison Officer

TAMMC Theater Army Material Management

Center

TBD To Be Determined

TC Trial Counsel or Tank Commander

TCP Traffic Control Point

TCSB Third Country Support Base

TDA Table of Distribution & Allowance

TDS Trial Defense Service

TEWT Tactical Exercise Without Troops

TF Task Force

THREATCON Threat Condition

TMO Transportation Movement Office

TOC Tactical Operation Center

TO&E Table of Organization and Equipment

TOR Terms of Reference

TOT Time On Target (for Arty); Time

Over Target for AF

TOW Tube-launched, Optically tracked,

Wire-guided

TPFDL Time Phased Force Deployment List

TPL Time Phase Line

TRADOC U.S. Army Training and Doctrine

Command

TRP Target Reference Point

TSOP Tactical Standing Operating

Procedure

TTP Tactics, Techniques, & Procedures

TVA Target Value Analysis

UAV Unmanned Aerial Vehicle

Glossary 580
UBL Unit Basic Load

UHF Ultra High Frequency

UIC Unit Identity Code

UMR Unit Manning Report

UN United Nations

UNHCR UN High Commissioner for Refugees

UNICEF UN International Childrens

Emergency Fund

UNMIH UN Mission in Haiti

UNODIR Unless Otherwise Directed

USACAPOC U.S. Army Civil Affairs &

Psychological Operations Command

USAFR U.S. Air Force Reserve

USAIA U.S. Army Intelligence Agency

USAID U.S. Agency for International

Development

USALSA U.S. Army Legal Services Agency

USAR U.S. Army Reserve

USARCS U.S. Army Claims Service

USAREUR U.S. Army Europe

USASOC U.S. Army Special Operations

Command

USDA U.S. Department of Agriculture

USG U.S. Government

USIA U.S. Information Agency

USIS U.S. Information Service

UW Unconventional Warfare

VFR Visual Flight Rules

VHF Very High Frequency

WCS Weapons Control Status

WFZ Weapons Free Zone

WHNS Wartime Host Nation Support

WHO World Health Organization

WIA Wounded in Action

WMD Weapons of Mass Destruction

WO Warning Order

WP White Phosphorous

WRMS War Reserve Material Stocks

WPR War Powers Resolution

XO Executive Officer

581 Glossary
Glossary 582
INDEX

1

10 U.S.C. § 2011, 272

15-6 Investigation Guide, 118

15-6 Investigations, 113

1980 Refugee Act, 63

A

A&T (Administrative and Technical) Status, 290

Acquisition and Cross-servicing Agreements (ACSAs), 272

Acquisitions and Cross-Servicing Agreements (ACSA), 292

ACSA (Acquisitions and Cross-Servicing Agreements), 292

ADA (Antideficiency Act), 222, 237

Administrative Investigations, 113

Admiralty Claims, 148

Advanced Training, Law Enforcement Agencies, Policy, 346

Aerospace Expeditionary Task Force, 442

Aerospace Power, 438

Air and Space Power Functions, 440

Air Force Organizational Structure, 442

Aircraft Carrier Battle Group (CVBG), 456

Anticipatory Self Defense, 4

Antideficiency Act, 222, 237

Anti-Personnel Land Mines, 13

Anti-Personnel Land Mines, Ottawa Process, 14

Anti-Personnel Land Mines, U.S. Policy, 14

Antiterrorism, 313

Application of Law of War, 10

Archipelagic Sea Lane Passage, 133

Arms Export Control Act, 233

Army Special Operations Forces (ARSOF), 373

Article 139 Claims, 149

Article 51, UN Charter, 2

Assassination, 12

Asylum, 366

Augmentation of Appropriations, 223

Availability of Appropriations as to Time, 236, 237

B

Basel Convention of 1989, 210

Battle Command Training Program, 497

Battlefield Procurement of Services, 251

BCTP, 497

Bilateral or Regional Conference, Seminar or Meeting, 273

Biological Weapons Convention, 11

Blanket Purchase Agreements (BPAs), 245

Booby Traps, 14

BPA (Blanket Purchase Agreements), 245

C

CA (Civil Affairs), 379

Casualty Assistance, 304

Chain of Command, 422

Chairman of the Joint Chiefs of Staff (CJCS), 430

Chapter VII Enforcement Actions, 2

Checklist for Compliance with the Law of War, 526

Chemical Weapons, 15

Chicago Convention, 128

CINC Initiative Funds, 226, 272, 273, 278

Civil Affairs (CA), 379

Civil Disasters and Emergencies, 326

Civil Disturbances, 334

Civil-Military Operations Center, 380

Claims Chronology Sheet, 170

Claims Office Operation, 163

Claims SOP Sample, 166

CMOC, 380

CMTC, 496

COA Analysis, 478

COA Comparison, 478

COCOM, 394

COCOM (Combatant Command), 423

Collective Self Defense, 4

Combat Claims, 151

Combat Maneuver Training Center, 496

Combatant Command, 394

Combatant Commands, 421

Combatants, 12

Combined Exercises, 273

Command Responsibility, 29

Competition in Contracting Act, 242

COMSEC Monitoring, 359

Confiscation of enemy property, 250

Conscientious Objectors, 101

Construction Using O&M Funds, 227

Contiguous Zone, 129

Contracting Officer Support, 241

Contractor Employees, 140

Convention on International Civil Aviation, 128

Convention on the Privileges and Immunities of the UN, 408

Convention on the Safety of UN and Associated Personnel,

413

Conventional Weapons Convention, 12

Counterdrug Policy, 349

Counterdrug Support, 342

Counterintelligence, 283

Counterintelligence Force Protection Source Operations, 283

Counterproliferation, 385

Counterterrorism, 313

Course of Action Development, 477

Cover and Cover Support, 283

Cultural Property, 18

D

De minimis HCA, 277

Defense Against Weapons of Mass Destruction Act, 345

Defense Agencies, 428

583 Glossary
Defense Institute of Security Assistance Management, 269

Defense Security Cooperation Agency, 269

Defensive Information Operations, 355

Demining, 277

Department of Defense, 427

Deputy Secretary of Defense, 428

Convening Authority, 184

Detainees, 23

Development Assistance Programs, 273

Direct Commercial Sales (DCS), 268

DISAM, 269

Distinction, Principle of, 10

DoD Field Activities, 429

Domestic Emergency Support Team, 317

Domestic Operations, Advanced Training Policy, 346

Domestic Operations, Counterdrug Policy, 349

Domestic Operations, Counterdrug Support, 342

Domestic Operations, Emergencies Involving Chemical or

Biological Weapons, 341

Domestic Operations, Expert Advice and Training, 339

Domestic Operations, Maintenance and Operation of

Equipment, 341

Domestic Operations, Sharing Information, 338

Domestic Support, Loan of Equipment and Facilities, 339

Drawdown Authorities, 268

DSCA, 269

E

E.O. 12,114, 204

E.O. 12656, 364

Economic Support Fund (ESF), 267

Electronic Warfare (EW), 354

Emergencies Involving Chemical or Biological Weapons, 341

Emergency and Extraordinary (E&E) Expenses Funds, 225

Emergency Essential Personnel, Designating, 137

Endangered Species Act, 204

Enemy Property, Use of, 19

Enforcement Actions, Chapter VII, 2

Enforcement Actions, Regional Organization, 2

ENMOD Convention, 215

Environmental Modification Convention (ENMOD), 215

Espionage, 20

Excess Defense Articles (EDA), 268

Excess Non-lethal Supplies, 277

Exclusive Economic Zone, 129

Executive Order 12,114, 204

Executive Order 12656, 364

Expert Advice and Training to Law Enforcement, 339

F

FAA, 262

Family Care Plans, 302

FAST-J Method, 482

Federal Emergency Management Agency, 328

Federal Torts Claim Act, 146

FEMA, 328

Final Governing Standards, 212

FM 27-100, 498

Foreign Assistance Act, 234, 262

Foreign Claim Partial Claim Settlement Agreement, 180

Foreign Claims Act, 146

Foreign Claims Commission Claims Log, 181

Foreign Claims Commission Data Sheet, 177

Foreign Claims Commission Memorandum of Opinion, 178

Foreign Claims Commissions, 147

Foreign Criminal Jurisdiction, 289

Foreign Disaster Assistance, 278

Foreign Disaster Relief, 274

Foreign Military Construction (FMC) Program, 268

Foreign Military Financing Program (FMFP), 266

Foreign Military Sales (FMS) Program, 268

Functional Combatant Commands, 422

G

GAO Honduras Opinion, 264

GARDEN PLOT, 335

General Order No. 1, ALLIED FORCE/ALLIED HARBOR

(Balkans), 200

General Order No. 1, DESERT SHIELD, 196

General Order No. 1, JTF-190 (Haiti), 198

Geneva Conventions, 11

Geneva Protocols, 11

Geneva Protocols, U.S. position, 11

Geographic Combatant Commands, 421

Gifts, 102

H

Hague Regulations, 10

Herbicides, 16

High Seas, 129

Hollow point ammunition, 13

Homeland Defense Initiative, 319

Hospitals, 18

Host Nation Law, 52

Hostile Act, 70

Hostile Force, 70

Hostile Intent, 70

Hot Pursuit on the High Seas, 135

Human Rights, Customary Law, 40

Human Rights, Universal Declaration of, text, 45

Humanitarian and Civic Assistance (HCA), 275

Humanitarian Assistance, 277

Humanitarian Programs, 275

Humanity, Principle of, 9

I

IBCT, 435

ICRC, 27

Immediate Response Authority, 327

Incendiaries, 15

Information Operations and the Law of War, 357

Information Operations, Statutes, 358

Innocent Passage, 131

Intelligence Community, 282

Intelligence Funding, 284

Intelligence Oversight, 284

Intelligence Procurement, 284

Intelligence Property Accountability, 284

Index 584
Interim Brigade Combat Team, 435

Internal Waters, 128

International Committee of the Red Cross, 27

International Military Education and Training (IMET)

Program, 267

Investigators Interview Checklist for Vehicle Accidents, 159

IO Planning Process, 356

J

JAGCNet, 493

Joint Ethics Regulation (JER), 103

Joint Operations Planning and Execution System, 480

Joint Readiness Training Center, 494

Joint Staff, 431

Joint Warfighting Center, 497

JOPES, 481

Journalists, 24

JRTC, 494

JWFC, 497

L

Land Mines, 13

Land Mines Protocol, 14

Land Mines, Ottawa Process, 14

Land Mines, U.S. Policy, 14

Lasers, 15

Latin American Cooperation, 273

Law by analogy, 55

Law Enforcement Detachments (LEDETs), 341

Law of the Flag, 54

Law of War Class Outline, 31

Law of War, Troop Information, 36

Legal Appendix (JOPES) Format, 484

Legal Preparation of the Battlefield, 500

Legal Review of Weapons, 13

Loan of Equipment and Facilities to Law Enforcement, 339

LOGCAP (Logistics Civil Augmentation Program), 248

LOGJAMMS (Logistics Joint Administrative Management

Support Services), 248

M

Maintenance and Operation of Equipment for Law

Enforcement, 341

Marine Air Ground Task Force (MAGTF), 449

Marine Corps Force Structure, 448

Marine Expeditionary Force (MEF), 449

Marine Expeditionary Unit (Special Operations Capable)

(MEU(SOC)), 449

MDMP, 475

Media Discussion Guidelines, 520

Media Guidelines, 513

Media Survival Guide, 518

Medical Facilities, 18

Medical Supplies, 18

Medical Transport, 18

METT-TC, 501

MILCON Appropriations, 224

Military Claims Act, 146

Military Decision Making Process (MDMP), 475

Military Extraterritorial Jurisdiction Act of 2000, 143

Military Necessity, 8

Military Objective, 8

Military Service Chiefs, 431

Military-to-Military Contacts, 273

Mines Protocol, 14

Miscellaneous Receipts, 223

Mission Analysis, 477

Mobilization Processing Program, 298

N

NAFI Claims, 149

National Command Authorities, 422

National Command Structure, 421

National Environmental Policy Act (NEPA), 204

National Military Strategy, 425

National Security Council, 422

National Security Strategy, 425

National Training Center, 495

NATO Claims Procedures, 149

NATO Defence Planning Committee, 464

NATO Military Committee, 464

NATO ROE, 468

Neutrality, 26

Non-combatants, 12

Non-extraterritoriality, 42

Non-proliferation, Antiterrorism, Demining, and Related

Programs (NADR), 267

Non-refoulment, 63

NTC, 495

Nuclear Weapons, 16

Nunn-Lugar-Domenici Act, 345

O

O&M Appropriations, 223

Oath of Loyalty, 400

Offensive Information Operations, 355

Office of the Secretary of Defense, 428

OPCON, 394

Operational Command, 394

Operational Law Matrix, 503

Operations Security (OPSEC), 353

Ordering Officer Support, 241

Orders Production, 479

Outer Space Treaty, 128

Overseas Humanitarian, Disaster, and Civic Assistance

(OHDACA), 278

P

Parachutists, 23

PDD 25, 392

PDD-39, 318

Peace Building, 397

Peace Enforcement, 397

Peace Operations, 395

Peacekeeping, 396

Peacekeeping Operations (PKO), 267

585 Index
Peacemaking, 397

Perfidy, 20

Personnel Claims Act, 146

Pillage, 61

Pocket Cards, ROE, 73

Pocket Cards, ROE, Samples, 91

Political Asylum, 65

Posse Comitatus Act, 332

Presidential Decision Directive (PDD) 25, 392

Presidential Emergency Drawdown Authorities, 268

Preventive Diplomacy, 397

Principle of Distinction, 10

Principle of Proportionality, 9

Principle of Unnecessary Suffering or Humanity, 9

Prisoners of War, 22

Privileges and Immunities of the UN, Convention, 408

Property Control Record Book, 257

Proportionality, Principle of, 9

Protected Property, 17

Protecting Powers, 27

Protective Emblems, 18

Psychological Operations (PSYOPS), 20, 378

PSYOPS, 20, 378

Purchase Orders, 245

Purpose Statute, 222

Purpose Statute Violations, 236

R

Rapid Assessment and Initial Detection (RAID) Teams, 321

Ratification of Unauthorized Contracts, 251

RCA, 15

Real Property Claims Guidance, 174

Reciprocal Training, 268

Refugee, 63

Rendulic Rule, 9

Report of Claims Officer (DA Form 1208), 161

Reports of Survey, 105

Reprisals, 21

Requisition of property, 250

Response Task Force, 320

Retained personnel, 23

Right of Assistance Entry, 132

Right of Visit and Search, 135

Riot Control Agents, 15

ROE, NATO, 468

Rules of Engagement Pocket Cards, 73

Rules of Engagement Pocket Cards, Samples, 91

Rules of Engagement Training, 72

Rules of Engagement, Judge Advocate Roles, 70

Ruses, 19

S

SACEUR, 464

SACLANT, 464

Safety of UN and Associated Personnel, Convention, 413

Scope Certificate Sample, 171

, 225

Secretary of Defense, 427

Security Assistance Organizations, 270

Security Assistance, definition, 266

Seizure of enemy property, 250

Self Defense, 2, 69

Self-Executing Treaties, 43

SFG, 374

Sharing Information with Law Enforcement, 338

Simplified Acquisition Procedures, 244

Situational Training Exercise, 73

SOF Exception, 272

SOFA Claims, 148

Solatia Payments, 149

Soldier Readiness Program (SRP), 295

Soldier's Rules, Law of War, 37

Special Forces Groups (SFG), 374

Special Information Operations (SIO), 355

Special Operations Collateral Activities, 386

Special Operations Missions, 376

Special Purpose Marine Air Ground Task Force (SPMAGTF),

449

SROE, 68

SRP, 295

Stafford Act, 326, 329

Standard Form (SF) 44, 245

Standing Rules of Engagement (SROE), 68

Status of Embassy premises, 366

STX, 73

Support to Law Enforcement, 332

Survivor Benefits, 305

T

TACON, 395

Tactical Command, 395

Temporary Refuge, 65, 366

Territorial Sea, 129

Terrorism, 313

Time of War and the Punitive Articles, 186

Training Foreign Forces, 272

Training of Foreign Personnel, 270

Training ROE, 72

Transfer of Jurisdiction, Sample, 193

Transferring Court-Martial Jurisdiction, Order, 195

Transit Passage, 132

Transportation of Humanitarian Relief Supplies, 278

Treachery, 20

Treaties, Self-Executing, 43

Troop Information, 36

U

UN Charter, text, 553

UN Participation Act, 399, 404

Unauthorized Contracts, Ratification of, 251

UNCLOS III, 127

Unified Command Plan, 421

Unit Claims Officer Appointment Order, 158

Unit Claims Officer Deployment Guide, 156

United Nations Convention on the Law of the Sea, 127

Universal Declaration of Human Rights, text, 45

Unnecessary Suffering, Principle of, 9

Unspecified Minor MILCON Program, 227

Urinalysis Testing, 184

USSOCOM, 372

Index 586
V

Vice Chairman of the Joint Chiefs of Staff, 430

Vienna Convention on Diplomatic Relations, 366

W

War Powers Resolution, 5

War trophies, 21, 189

Wartime Offenses, 188

Weapons, Legal Review, 13

Works and Installations Containing Dangerous Forces, 18

Wounded and Sick, 23

587 Index
Index 588