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Legal Issues in Foreign Consequence Management

LCDR Bill Dwyer, USCGSPS-OLC

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• Department of State:– International event involving contamination from

CBRN source with potential for catastrophic human casualties

– Events involving high-yield explosives DoS responds via USAID/OFSA as for natural disasters

– NSPD-17 • Department of Defense:

– Activities to assist friends and allies to assess and respond to a CBRN incident in order to mitigate human casualties and to provide temporary associated essential services.

– DoD Inst 2000.21– CJCSI 3214.01C (update in 2008)

Foreign Consequence ManagementDefinitions of FCM

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• Domestic CBRN incidents

• Acts of Nature or acts of man that do not involve CBRN materials (including toxic industrial materials)

• CBRN incidents that are the direct result of US military operations in a foreign country where Department of State (DOS) does not have an established presence

• CBRN incidents that occur and the effects of which are contained on US military installations abroad, unless specifically stated otherwise in applicable international agreements – DODI 2000.18 applies to CBRN incidents on DOD

installations

Foreign Consequence ManagementWhat is *not* FCM:

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• DoS– Requires an “international” event– Excludes HI, AK, or other overseas U.S.

territories/possessions– Differing positions on U.S. military bases,

CONUS or OCONUS• DoD

– Same as above, but also does not include overseas U.S. military installations, unless the foreign nation is also affected

Foreign Consequence ManagementIncident Location

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1. Request for Assistance from the HN, sent through the LFA (here, the DoS), then an Executive Secretary memorandum is sent from DoS to DoD, SECDEF approves

2. U.S. proactively offers assistance as directed by the President

3. Immediate Response Authority to save lives4. Military commander exercises authority to

ensure the safety of own personnel, or pursuant to standing ACSA agreement with HN

** CM planning, management and mitigation is the responsibility of the HN! (But…)

DoD Activation Methods

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• Local military commander may take action to save lives following an emergency or attack.

• Time does not permit permission from higher HQ

• Must advise higher HQ in most expeditious means available

• Seek approval and or additional authorizations as needed

Immediate Response Authority

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• The ACSA program provides the US and governments of foreign nations a more flexible and less expensive means to provide mutual logistical support outside of normal commercial contracting and Foreign Military Sales (FMS) channels (10 USC sec 2341)

• In AFRICOM AOR 20 ASCA’s in place, 20 eligible for negotiation, 5 countries are not approved

• Benefits– Allow the legal transfer of supplies and services between

military forces– Enhance operational readiness– Provide cost effective mutual support– Are flexible and responsive, often more so than contracting

and FMS– Reduce the logistics tail for combined exercises and

contingencies such as peacekeeping & disaster relief operations

Acquisition and Cross Service Agreement

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• Approved• Food/clothing/POL• Transportation• Port services• Medical services• Base operations support• Use of facilities• Spares/components• Repair and maintenance

• Billeting• Airlift• Communication services• Ammunition• Storage services• Training services

Acquisition and Cross Service Agreement

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• Prohibited• Weapon systems• Major end items of equipment• Initial quantities of replacement

parts & spares• Guided missiles, naval mines,

and torpedoes• Nuclear & chemical ammunition• Chaff & chaff dispensers• Guidance kits for bombs and

other ammunition

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• Since it is overseas, SROE apply (with addition of COCOM specific ROE – CJCSI 3121.01B Deconflict multinational ops– Operate under multinational ROE w/ SECDEF approval

• SRUF applies to DoD forces performing LE/security duties on DoD bases abroad as well as official DoD security functions off-installation world-wide

RUF/ROE

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• Allows for protection against “hostile act or demonstrated hostile act”

• Need to look at the specific threat, LOAC and applicable international and HN laws

• SOFAs should never be interpreted to limit the right of self-defense

• Unit Self defense includes: Persons, Vessels, and Aircraft receiving emergency assistance

from U.S. Aircraft or Vessel

Right of Self-Defense

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• HN retains “principal responsibility” for defending U.S. persons and property w/in its territory

• w/in USG, DOS through COM is responsible for safety and protection of all U.S. personnel not assigned to the COCOM

• MOU between DOS/GCC for country-by-country arrangements to transfer responsibilities for security of personnel to the GCC

o ASD, Special Ops and Low Intensity Conflict (ASD(SO/LIC))

• During FCM, the GCC retains overall responsibility for force protection w/in the AOR

• DoD Directive 2000.12

Force Protection

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• Non-Combatant Evacuation Operations• Joint Pub 3-68

• The ROE for NEOs reflect the limited military objective to be accomplished

• ROE limits the use of force to that force which is necessary to successfully complete the mission & provide for the self-defense of US military personnel and defense of noncombatant evacuees

• Law of War Principles utilized in planning (military necessity, unnecessary suffering, distinction, proportionality)

Foreign Consequence Management

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• Fiscal Law

– Color of Money– Foreign Assistance Act (22 USC 2292 &

2318)– $ appropriated under FAA may be

allocated/transferred to any USG agency for purpose of the act

– Lots of challenges- reimbursement for immediate response not guaranteed• First O&M Special Authorities (CCIF,

E&EE, COFA)• If requested by USAID the expectation is

reimbursement to DoD for humanitarian missions

Foreign Consequence Management

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• A Status of Forces Agreement (SOFA) defines the legal position of a visiting military force deployed in the territory of a friendly state (JP 3-07.02)

• Many names… DCA, exchange of notes/letters, access agreements… establishes protections for DoD personnel

• Critical tool to carry out operations

• Art 98 and the ICC (immunity bi-lats)

Foreign Consequence Management

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UNCLASSIFIEDStatus Protections Progress in the AFRICOM AOR

Adequate A&T Protections (24)

LEGEND:

As Of:1 May 2010

Full Protection (5): Global Dip Note A&T Protections (3)

A&T Protections:

No SOFA protections (15)Waiver Required:

Recently Signed (2)

No SOFA protections but active discussions with Country Team (5) No SOFA protectionsbut active engagement (3)

Adequate A&T Protections but active discussions with Country Team (1)

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Questions?