Legal Issues in Foreign Consequence Management

1. Legal Issues in Foreign Consequence Management LCDR Bill Dwyer, USCG SPS-OLC

2. 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 Management Definitions of FCM 26

3. 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 Management What is *not* FCM: 26

4. 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 Management Incident Location 26

5. 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 U.S. proactively offers assistance as directed by the President Immediate Response Authority to save lives 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 26

6. 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 26

7. 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 26

8. 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 • 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 26

9. 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 26

10. 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 26

11. 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 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 26

12. 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 26

13. 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 26

14. 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 26

15. Status Protections Progress in the AFRICOM AOR LEGEND: Full Protection (5): Global Dip Note A&T Protections(3) Recently Signed (2) A&T Protections: Adequate A&T Protections (24) Adequate A&T Protections but active discussions with Country Team (1) Waiver Required: No SOFA protections (15) No SOFA protections but active discussions with Country Team (5) No SOFA protections but active engagement (3) As Of: 1 May 2010

16. Questions?