Operational

Law
Handbook

INTERNATIONAL & OPERATIONAL LAW DEPARTMENT

The Judge Advocate General's School

United States Army
Charlottesville, Virginia

JA 422
1997
 OPERATIONAL LAW HANDBOOK

LTC Richard B. Jackson

Chair, International and Operational Law Department

MAJ Richard M. Whitaker

Editor

Contributing Authors

SGT Jon R. Alston LtCol Richard A. Barfield, USMC

MAJ Stephen E. Castlen SGT David W. Clark

LTC Paul E. Conrad LTC David M. Crane, Ret.

MAJ Janet H. Fenton MAJ Christopher M. Garcia

LTC John M. German MAJ James C. Johnson

LTC Richard B. Jackson MAJ Maurice A. Lescault, Jr.

MAJ Jackie Little MAJ Mark S. Martins

MAJ Marsha V. Mills MAJ Scott R. Morris

CDR Mark E. Newcomb, USN MAJ Michael A. Newton

MAJ Charles N. Pede MAJ Timothy J. Pendolino

MAJ Jody M. Prescott LTC Annamary Sullivan

MS. Rosanna Reed MAJ Jeffrey A. Rockwell, USAF

LTC Andrew M. Warner LTC Marc L. Warren

MAJ Richard M. Whitaker CPT Paul S. Wilson

LtCol Kevin H. Winters, USMC CDR James P. Winthrop, USN

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
 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 general’s 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 General's School (TJAGSA). Send comments, suggestions, and
work product from the field to TJAGSA, International and Operational Law Department,
Attention: MAJ Rich Whitaker, Charlottesville, Virginia 22903-1781. To gain more
detailed information or to discuss an issue with the author of a particular chapter or
appendix call MAJ Whitaker at DSN 934-7115, ext. 6372 or Commercial (804) 972-
6372.
 TABLE OF CONTENTS

OPERATIONAL LAW DOCTRINE...................................................................................................... 1

NATIONAL SECURITY: STRATEGY AND STRUCTURE................................................................. 2
INTERNATIONAL AGREEMENTS (SOFA, ACSA)............................................................................ 3
LEGAL BASES FOR MILITARY OPERATIONS................................................................................ 4
ENVIRONMENTAL LAW IN OPERATIONS....................................................................................... 5
OPERATIONS PLANS AND ORDERS............................................................................................... 6
INTELLIGENCE LAW ASPECTS OF OPERATIONS........................................................................ 7
RULES OF ENGAGEMENT................................................................................................................. 8
BATTLEFIELD ACQUISITION............................................................................................................. 9
CLAIMS................................................................................................................................................. 10
CONTRACTS........................................................................................................................................ 11
FISCAL LAW........................................................................................................................................ 12
CIVILIAN PROTECTION LAW IN MILITARY OPERATIONS............................................................ 13
DEPLOYMENT..................................................................................................................................... 14
SPECIAL OPERATIONS (SOF, CA, AND PSYOP)........................................................................... 15
ADMINISTRATIVE LAW...................................................................................................................... 16
CRIMINAL LAW................................................................................................................................... 17
LAW OF WAR...................................................................................................................................... 18
LEGAL ASSISTANCE......................................................................................................................... 19
HUMAN RIGHTS................................................................................................................................. 20

OPERATIONS OTHER THAN WAR

MILITARY SUPPORT TO CIVIL AUTHORITIES................................................................. 21
MILITARY SUPPORT TO CIVILIAN LAW ENFORCEMENT............................................. 22
HUMANITARIAN ASSISTANCE.......................................................................................... 23
SECURITY ASSISTANCE.................................................................................................... 24
PEACE OPERATIONS......................................................................................................... 25
NONCOMBATANT EVACUATION OPERATIONS............................................................ 26

OPERATIONAL LAW INTERNET WEB SITES.........…………........................................................ 27

RUCKSACK DEPLOYABLE LAW OFICE LIBRARY………………………………………………… 28
AIR AND SPACE LAW…………………………………………………………………………………… 29

APPENDICES
AIR FORCE............................................................................................. A
MARINE CORPS..................................................................................... B
NAVY....................................................................................................... C
THE RESERVE COMPONENT.............................................................. D
US GOVERNMENT, UN, AND OTHER INTERNATIONAL
ORGANIZATIONS.................................................................... E
DEALING WITH THE PRESS................................................................ F
PROFESSIONAL RESPONSIBILITY.................................................... G
REPORTS............................................................................................... H
UN CHARTER........................................................................................ I

GLOSSARY

INDEX
 CHAPTER 1
OPERATIONAL LAW DOCTRINE

DEFINITION OF OPLAW

That body of domestic, foreign, and international law that impacts specifically upon
the activities of U.S. Forces across the entire operational spectrum.

Operational law is the essence of the military legal practice. It is a collection of diverse legal and military
skills, focused on military operations. It includes military justice, administrative and civil law, legal
assistance, claims, procurement law, environmental law, national security law, fiscal law, international law,
host nations law, and the law of war. In short, operational law is a unique blend of every source of law
that has application within the operational context. The practice of operational law requires competence in
military skills, a clear understanding of the supported military unit and its mission. The tenets of the
operational law practice mirror the tenets of Army operations: initiative, agility, depth, synchronization,
and versatility.

Because the definition of operational law is so broad, ample statutory and regulatory references serve to
establish the substance of the practice. The difficulty, however, is not WHAT to do, but HOW and WHERE
to do it. The following list of references, while not exhaustive, provides authority for legal support in
military operations.

DIRECTIVES

Together, the following three directives mandate aggressive operational law programs. The first two direct
commanders to use their legal advisors. The third message closes the loop. If the command has not
sought legal input from the top, this message forces it "from the bottom," directing Judge Advocates to
serve as operational law advisors.

DOD Dir. 5100.77, 10 July 79, requires all US Forces to abide by the law of war. "The Armed Forces of
the United States shall comply with the law of war in the conduct of military operations and related
activities in armed conflict, however such conflicts are characterized." (NOTE: A revised DoD Dir 5100.77
is expected in 1997. The proposed revision incorporates legislative changes (Goldwater/Nichols, e.g.) and
lessons learned from Operations URGENT FURY, JUST CAUSE, DESERT STORM, and UPHOLD
DEMOCRACY.)

Joint Chiefs of Staff Memoranda (MJCS 59-83, 1 June 83, and MJCS 0124-88, 4 Aug 88) require lawyers
to provide advice on both restraint and the right to use force. "Legal Advisors should be immediately
available to provide [LOW advice and compliance] during joint and combined operations." That advice
should "address not only legal restraints upon operations, but also legal rights to employ force." Further,
lawyers "should attend planning conferences for joint and combined operations and exercises when ROE
and related topics will be discussed."

FORSCOM Message, Subject: Review of Operations Plans_(292030 Oct 84). Legal Advisors will review
and advise commanders and staff on all operational plans and orders. JAs will make direct liaison with
the operations officer (G-3) to act as the operational law advisor.

FIELD MANUALS

FM 100-5, OPERATIONS (June 1993). Establishes Army doctrine. Of particular importance to JAs are
Chapter 2, Fundamentals of Army Operations, and Chapter 13, Operations Other Than War. Discipline,

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rules of engagement (ROE), and the law of war are discussed at pages 2-3 and 2-4. Restraint and ROE
are discussed at page 13-4.

FM 27-100, LEGAL OPERATIONS (September 1991). Establishes Army JAGC legal operations doctrine.
Although premised on the AirLand Battle Doctrine, FM 27-100 provides an overview of traditional Army
JAGC legal support structures, roles, and missions. A revised FM 27-100 is expected out in the near
future.

FM 27-10, THE LAW OF LAND WARFARE (July 1956, with Change 1, July 1976). The essential
reference. Unfortunately, it contains little direct language on how and where the command obtains the
legal advice necessary to follow the laws and principles embodied in the manual.

FM 100-10, COMBAT SERVICE SUPPORT (February 1988). Generally prescribes and defines legal
service support to various levels of command (pages 4-11 and 4-12).

FM 100-16, ARMY OPERATIONAL SUPPORT (May 1995). Lists "necessary legal support" and provides
authority for JAs operating with maneuver brigades (page 6-10).

FM 100-15, CORPS OPERATIONS (September 1989). Provides "wiring diagram" of Corps staff,
identifying SJA as a member of Personal and Special Staffs (page 2-2). Establishes and defines Corps
command posts and cells, and identifies SJA positions in the CSS cells of the Corps tactical operations
Center (CTOC) and Corps Rear Command Post (pages 4-9 through 4-11).

FM 100-20, STABILITY AND SUPPORT OPERATIONS (DRAFT). Discusses OOTW conceptually and as
applied to selected scenarios. Contains a brief Appendix on "The Law and OOTW."

FM 100-23, PEACE OPERATIONS (December 1994). Identifies "Legal Considerations" in peace

operations (pages 48 and 49). States fundamentals of peace operations (Chapter 1) and discusses
Command, Control, Coordination, and Liaison (Chapter 2). Addresses ROE at page 35. Contains
Appendices on the UN and on US, UN, and Other International Organizations. Provides sample ROE and
cards, and excellent Glossary and References. Include this FM in your deployment load list.

FM 100-25, DOCTRINE FOR ARMY SPECIAL OPERATIONS FORCES (December 1991). Identifies
functional areas of legal services to SOF. Provides doctrinal authority for legal support to SOF and for
organic JAs in SF groups (pages 14-20 and 14-21).

FM 71-100, DIVISION OPERATIONS (June 1990). Identifies division staff organization and functions, and
identifies SJA position locations in the division in the field. Provides authority for SJA positions in the CSS
cells of the division Tactical Operations Center (DTOC) and division Rear Command Post (pages 3-4
through 3-7).

FM 71-100-2, INFANTRY DIVISION OPERATIONS: TACTICS, TECHNIQUES, AND PROCEDURES

(August 1993). Prescribes division command post operations and techniques. Provides for one JA
(identified as the DSJA) as part of the G-3 Plans element of the Main CP (page 2-42). Provides for main
SJA body location in the G-1 support element of the division Rear CP (pages 2-61, 2-62, and 2-73 through
2-76). Places a JA in the G-3 Operations element of the division Assault CP; states that," The SJA
[representative] is a critical element in the assault CP during the early stages of the deployment" (pages 2-
80 through 2-84). Discusses SJA's extensive role in operations other than war, including advice on ROE
and "legal considerations" (chapter 6).

FM 101-5, STAFF ORGANIZATION AND OPERATIONS (May 1984). Establishes basic staff structure for
major field commands; identifies SJA as member of Special and Personal Staffs (pages 2-6 through 2-10).
Defines the "Special Staff Group" and "Personal Staff Group" (pages 2-4 and 2-5). Lists responsibilities
of the SJA (pages 3-31 and 3-32).

FM 41-10, CIVIL AFFAIRS OPERATIONS (January 1993). Establishes CA doctrine. Provides for "Legal"
as a CA Functional Specialty (page 4-14). Affords good overview of CA missions and addresses matters

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of interest to the operational lawyer (chapter 14, for example, discusses the Country Team and NGOs).
Include this FM in your deployment load list.

REGULATIONS

Although not "doctrinal," regulations also provide authority for the performance of the operational law
mission:

AR 27-1, Judge Advocate Legal Service (February 1995). Identifies the "International and Operational
Law" responsibilities of TJAG (paragraph 2-1g); provides that JA officers should not routinely perform
nonlegal duties (paragraph 3-2c); and prescribes operational law as a mission of the Judge Advocate
Legal Service (paragraph 4-2) and a responsibility of supervisory JAs (paragraph 5-2a(7)).

AR 27-10, Military Justice (August 1994), w/change 1, dtd 16 December 1994. Provides for mutual
support responsibilities between SJAs and USATDS (chapter 6); addresses tactical unit support and
performance of nondefense duties by USATDS JAs (paragraph 6-8). Provides for judicial cross-servicing
IAW R.C.M. 201(e)(4) (paragraph 8-6e) and for administrative and logistical support to military judges
(paragraph 8-7). Restates and implements U.S. custody policy overseas (chapter 17). Change 1 adds
several important paragraphs which govern imposition of, and procedures concerning, nonjudicial
punishment by multiservice commanders and officers in charge.

AR 27-20, Claims (August 1995). Proscribes policies, procedures, and responsibilities for investigating,
processing, and settling claims against and in favor of the U.S. In regard to the Operational environment,
ch. 10 is of special importance, as it provides the rules and procedures for claims cognizable under the
Foreign Claims Act and the operation of Foreign Claims Commissions (which must be composed of JAs).

AR 570-2, Manpower Requirements Criteria (May 1992). Serves as the basic document for TOE staffing.
Now being revised. See, Combat Developments Notes, New Manpower Requirements Criteria, Army
Law., April 1994, at 58. The Manpower Requirements Criteria (MARC) is the authority for operational law
attorney positions in units.

COMMAND REGULATIONS & PUBLICATIONS

Command regulations and publications can reinforce the operational law mission. Numerous commands
have regulations on Law of War Programs and Reporting Law of War Violations. For example, USAREUR
Regulation 27-8, Law of War Program (December 1992) effectively implements directives and doctrine by
mandating SJA involvement in training and operations, as well as establishing command policies on law of
war training and violation reporting procedures. Probably the best technique for making operational law an
integral component of your command (and not dependent on the force of personality of the operational law
attorney) is to ensure that appropriate references to operational law support are placed in unit Tactical and
Field SOPs. Within an office, develop, use, and maintain "Smart Books," "Brain Books," SOPs, and other
continuity materials to institutionalize operational law lessons learned and TTP.

JOINT REFERENCES

Joint Pub 3-0: Doctrine for Joint Operations (February 1995). States keystone doctrine for joint
operations. Discusses joint operations in war, military operations other than war, and multinational
operations.

JCS Pub 0-2: Unified Action Armed Forces (UNAAF) (January 1995). Establishes joint principles and
doctrine. Provides guidance for the exercise of authority by joint force commanders. In Chapter 3,
discusses "Disciplinary Action."

Joint Pub 2-0. Intellignce Support to Joint Operations (May 1995). Describes doctrine for intelligence
support to joint and multinational operations.

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Joint Pub. 3-05. Doctrine for Joint Special Operations (October 1992). Establishes basic doctrine for the
joint employment of SOF (based upon Goldwater/Nichols Act and Cohen-Nunn Amendment).

Joint Pub 3-07.2: Joint TTP for Antiterrorism (June 1993). Discusses "Legal Considerations" in Chapter III.

Joint Pub 3-07.3: Joint TTP for Peacekeeping Operations (April 1994). Discusses Mandate, Terms of
Reference (TOR), legal status and jurisdiction, SOFA/SOMA, and ROE in Chapter II. Provides sample
chains of command, Mandate, TOR, and SOFA as Appendices.

Joint Pub. 3-53. Doctrine for Joint-Psychological Operations (July 93).

Joint Pub 3-57: Doctrine for Joint Civil Affairs (June 1995). States joint CA doctrine and guidance.
Requires CA coordination and integration with the "Legal Division" (Appendix B).

Joint Pub. 4-02. Doctrine for Joint Health Services Support in Joint Operations (May 1990).

Joint Task Force Commander’s Handbook for Peace Operations (February 1995). Explains the differnt
types of Peace Operations, and the primary considerations of such missions, with particular attention to
legal responsibilities, mission statement issues, and JTF organization. Contains numerous admonitions to
commanders to seek legal advice.

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 CHAPTER 2
NATIONAL SECURITY: STRATEGY & STRUCTURE
st
America faces three great challenges as we enter the 21 century: keeping the
American Dream alive for all who are willing to work for it; bringing our own country
together, not dividing it; and making sure America remains the strongest force in
the world for peace and freedom, security and prosperity . . . The fact is America
remains the indispensable nation. There are times when America, and only
America, can make a difference between war and peace, between freedom and
repression, between hope and fear. Of course, we can’t take on all the world’s
burden. We cannot become its policemen. But where our interests and values
demand it and where we can make a difference, America must act and lead.
1
President Clinton, August 5, 1996
2
I. STRATEGY.
A CHANGED WORLD
3
The dissolution of the Soviet Union caused a fundamental change in US strategy. Where the US
once had the "luxury" of a clearly identifiable threat (the Soviets), it now must focus on a broader array of
regional contingency threats. The National Command Authority changed US strategy from "containment" to
4
peacetime "engagement" and "enlargement."

The engagement/enlargement philosophy encourages the US to use its instruments of national

power to prevent wars and regional conflicts, rather than having to confront adversaries in high intensity
combat (or "cold war" scenarios). The instruments of national power are: military, diplomatic, economic,
and informational. They are complementary, and the nation employs them in varying combinations as
components within the overall national security strategy.

At the heart of the engagement strategy--articulated in the August 1991 National Security
5
Strategy --is a desire for a new world order. Former President Bush described the new world order as
one "where brutality will go unrewarded and aggression will meet collective resistance." It will be a "world
where the rule of law supplants the rule of the jungle. A world in which nations recognize the shared
responsibility for freedom and justice. A world where the strong respect the rights of the weak." The
major elements of the order will be: "peaceful settlements of disputes, solidarity against aggression,
reduced and controlled arsenals, and just treatment of all peoples." It is necessary to understand the
essence of the engagement strategy to fully grasp the means to achieving the enlargement strategy.

1
REMARKS BY THE PRESIDENT ON AMERICAN SECURITY IN A CHANGING WORLD, Speech delivered at George Washington
University, Office of the Press Secretary, The White House.

2
See NATIONAL SECURITY STRATEGY OF ENGAGEMENT AND ENLARGEMENT, The White House, February 1996 [GPO stock #
0-16-048558-4]. Note that "strategy" is an all encompassing concept, not just strategy for the military. While the military is obviously a
strong element within our national structure, it exists to support civilian objectives. Accordingly, US military strategy evolves (as a subset)
from the US National Security Strategy. See also NATIONAL MILITARY STRATEGY: A STRATEGY OF FLEXIBLE AND SELECTIVE
ENGAGEMENT, Joint Chiefs of Staff, 1995 [GPO stock # 0-16-045531-6].

3
US strategy changes with the times. During the Eisenhower administration, "massive retaliation" was the concept for keeping the
Soviet Union in line. Under Kennedy, the idea changed to "flexible response." Since then, "containment" and "deterrence" were the
approach to dealing with communist expansionism.

4
Two sides can be seen emerging in the struggle to set American foreign policy. One is "America First," and the other is "Pax
Americana." America First proposes we withdraw from our entangling arrangements overseas, and let other countries provide for their
own defense. Pax Americana on the other hand, states that US interests are best served by our staying engaged.

5
50 U.S.C. § 404a [National Security Act of 1947, as amended (Goldwater-Nichols Defense Department Reorganization Act of 1986 §
603)], requires the President to transmit a National Security Strategy Report to Congress each year.

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 FEBRUARY 1996: A NATIONAL SECURITY STRATEGY OF ENGAGEMENT AND ENLARGEMENT

The Clinton Administration refined the engagement strategy by defining what was to be
accomplished in the engagement process. Enlargement became the strategic theme, to emphasize the
specific cornerstones of the American experience that were essential to the continuation of our way of life.
The cornerstones are freedom, liberal democracy, human rights, and open market economies.
Additionally, President Clinton reorganized the emphasis placed on each of the elements of national power.
Where President Bush focused on military power and alliance relationships, President Clinton emphasizes
economic vitality and the moral and political example that the US sets. The 1996 Engagement and
Enlargement Strategy is a 3 part approach:

ENHANCING SECURITY
-Goal: Maintain a force structure to respond to two "nearly simultaneous" major regional conflicts;
-Maintain sufficient overseas "presence";
-President's pledge to "draw the line" against cuts that undermine force structure or readiness;
-Strengthen Intelligence capabilities and NATO's leadership role in Europe;
-Combat terrorism and proliferation of weapons of mass destruction;
-Policy reform on US involvement in multilateral peace operations;
-Defining "When and How to Deploy US Forces":
* When vital US interests are at stake (warrants decisive and unilateral
commitment of US forces);
* When non-vital US interests are threatened (warrants measured use of US
forces if lesser attempts to end the threat have failed; and
* Humanitarian missions (only when appropriate for military forces to accomplish
the mission because of their unique characteristics).

PROMOTING PROSPERITY AT HOME

-Reduce deficit and promotion of economic growth;
-Increase Access to Foreign Markets
-Approval of Export Administration Act;
-GATT - Uruguay negotiations on world trade (opening of new markets);
-Asian Pacific Economic Cooperation (APEC) -- (free and open trade in region by 2020);
-Environmental Protection -- negotiating steps to go beyond year 2000 with BioDiversity
Convention and Convention on Climate Change; and
-Population Control -- US will take world leadership lead in strategies that allow families to choose
the number and spacing of children.

PROMOTION OF DEMOCRACY
-Support democratic and market reforms in the Former Soviet Union, South Africa, Haiti, and the
other 30 nations who have become democracies over the past 10 years;
-Support promotion of human rights on a multi-lateral and bilateral basis;
- Include goals of engagement and enlargement to nongovernmental organizations (NGOs)
and private organizations; and
- Explore ideas of a school for humanitarian operations and an international civilian rapid
response capability for humanitarian crises.

In accordance with the shift in strategy that began in the early 1990's, the force structure has
undergone significant restructuring (downsizing). To accomplish the peacetime engagement mission, the
1995 National Military Strategy established a strategy of "flexible and selective engagement" which
recognizes the ambiguous nature of US security challenges, which requires utilization of the full spectrum of
US Armed Forces capabilities. Two National Military Objectives are set forth in the strategy: Promote
Stability (through regional cooperation and constructive interaction) and Thwart Aggression (through
credible deterrence and robust warfighting capabilities). These objectives manifest themselves in three
derivative missions: Peacetime Engagement, Deterrence and Conflict Prevention, and Fight and Win (with
a two major regional contingency focus).

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II. THE STRUCTURE : THE UNIFIED / SPECIFIED COMMAND SYSTEM.

Warfighting Commands
The combatant commands are the warfighting commands of the US; they include unified and
6
specified commands . Collectively, their job is to conduct military operations wherever and whenever US
national interests require. Unified commands have broad continuing missions, and employ the forces of
two or more services. Specified Commands (when created) also have broad, continuing missions, but only
employ one service component to fulfill that mission.

Assignment of Forces
7
US forces are assigned to 9 unified combatant commands under the authority of the SECDEF .
The Commanders-in-Chief (CINCs) are assigned either regional or functional responsibilities. Five of the 9
unified commands (USACOM, EUCOM, PACOM, SOUTHCOM, CENTCOM) have regional responsibilities,
within a defined geographic Area of Responsibility (AOR); the other four have functional responsibilities.
1. Regional CINCs. The regional CINCs support US national security interests in particular areas
of the world. These CINCs command the US Atlantic Command, US European Command, US Pacific
Command, US Southern Command, and US Central Command.
2. Functional CINCs. The functional CINCs provide their specialized support world-wide. These
CINCs command the US Transportation Command, US Special Operations Command, US Space
Command, and US Strategic Command.

Operational Chain of Command

1. National Command Authority. The operational chain of command for these combatant forces runs
from the National Command Authority (NCA), i.e., the President and the SECDEF, through (not with) the
Chairman of the Joint Chiefs of Staff (CJCS) to the CINCs. Combatant Command (or COCOM) is
exercised by the warfighting CINCs. COCOM is defined as the authority of the combatant commander to
performs 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
8
command
2. CJCS. The Chairman of the JCS has no command authority. He acts, instead, as an executive agent
for SECDEF and provides a channel of communication between the NCA and the combatant commands.
3. Military Departments. Note that the military departments (i.e., the Army, Navy, and Air Force) are not
in the operational chain of command. These departments are responsible for ensuring that CINCs have the
forces and material necessary to fulfill their warfighting missions. The MilDeps may retain forces for their
inherent service functions of recruiting, organizing, supplying, equipping, training, mobilizing, administering,
9
and supporting the military forces .

Brief Description of Combatant Commands

Regional Commands
US Atlantic Command (USACOM, Norfolk, VA). Responsible for planning/conducting US military
operations in the continental U.S. and the Atlantic Ocean, as well as the joint training and integration of all
forces in the U.S. The CINC, ACOM, is also Supreme Allied CDR, Atlantic [SACLANT], a major NATO
CDR. Note that, as of 1 June 1997, USACOM transfers the Caribbean and Gulf of Mexico to the
USSOUTHCOM AOR.

Note: Forces Command (FORSCOM, Fort McPherson, Georgia) is now the Army component of
USACOM, and no longer a separate specified combatant command. FORSCOM has traditionally
been responsible for: 1) the land defense of the Continental United States (CONUS); 2) the Lead
6
10 U.S.C. § 161.

UP of 10 U.S.C. ∋ 162, all military forces are assigned to the Combatant Command of a CINC. The SECDEF has assigned all forces
7

to the CINCs via the “Forces For” document, attached to the current Joint Strategic Capabilities Plan (JSCP).

10 U.S.C. ∋ 164. See also JOINT PUB 0-2, UNIFIED ACTION ARMED FORCES [UNAAF], 24 February 1995.
8

9
10 U.S.C. §∋ 3013, 5013, 8013, respectively.

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 Operational Authority for USACOM and the Director of Military Support [DOMs - Sec. Army as
Executive Agent for the SECDEF] in conducting Domestic Support Operations in the United States;
3) providing a general reserve of combat-ready Army forces to reinforce other commands, and 4)
readiness and related deployment planning for those forces.

US European Command (USEUCOM, Stuttgart, Germany). Primarily responsible for providing combat
ready forces to NATO. Area of responsibility includes certain Middle East and most African countries.

US Pacific Command (USPACOM, Camp Smith, Hawaii). Responsible for supporting US and allied
national interests in the Pacific and Indian Ocean areas.

US Southern Command (USSOUTHCOM, Panama). Responsible for a wide-range of regional military

activities to enhance security in Central and Latin America. USSOUTHCOM now commands the Caribbean
Sea and the Gulf of Mexico.

US Central Command (USCENTCOM, MacDill Air Force Base (AFB), FL). Responsible for the
planning/execution of military operations in SW Asia, for joint exercises involving US and regional forces,
and for security assistance in the area. Effective Jan 1,1996 USCENTCOM has responsibility for the
Arabian Sea and a section of the Indian Ocean running south from Pakistan to near Diego Garcia and west
from Diego Garcia to the coast of southern Kenya. The nation of Seychelles is now included in this
command. These were formerly part of USPACOM.

Supporting Commands

US Transportation Command (USTRANSCOM, Scott AFB, Illinois). Responsible for providing global air,
land, and sea transportation. It includes the Military Airlift Command (MAC), the Military Sealift Command
(MSC), and the Military Transportation Management Command (MTMC).

US Special Operations Command (USSOCCOM, MacDill AFB, Florida). Responsible for providing a
general reserve of specially trained and equipped special operations forces to reinforce other commands.
Additionally, pursuant to a specific tasking by the President and SECDEF, the Commander-in-Chief,
USSOCCOM, may command a special operations mission.

US Space Command (USSPACECOM, Peterson AFB, CO.). Responsible for the defense of the
Continental US (CONUS) from air, missile, and space attack. Provides warning support to N. American Air
Defense Cmd (NORAD), the joint US-Canadian command responsible for air defense of N. America.

US Strategic Command (USSTRATCOM, Offutt AFB, Nebraska). Responsible for deterring major
military attack on the US or its allies. Should deterrence fail, it will employ appropriate forces (strategic
nuclear forces if needed).

III. THE ROLE OF THE JUDGE ADVOCATE.

Judge Advocates have a natural role in this new, more complex strategy. Whether deployed
forward, as a part of the contingency forces that comprise the power projection package, or as a part of
the various command and support strata, the operational law judge advocate fulfills a special role in the
peacetime engagement mission, as the staff expert on such issues as use of force, rules of engagement,
international agreements, domestic law (e.g., drug interdiction, military support to law enforcement,
disaster relief) and so on.

Operational law specializes in the "military strength" component of the elements of national power,
and the OPLAWYER can walk the commander up to the line between peacetime engagement and conflict.
In this manner, law becomes an "arrow in the quiver" for commanders, and can be used as a force
multiplier.

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 CHAPTER 3
INTERNATIONAL AGREEMENTS

Section I: Agreements Generally

Section II: International Agreements Review Checklist
Section III: Sample Status of Forces Agreements
Section IV: Acquisition and Cross-Servicing Agreements (ACSAs)
Section V: Sample ACSA and supporting Memorandum

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 on four
areas. First, it provides a basic overview of what constitutes an international agreement, plus the
procedural and substantive authorities for the negotiation and conclusion of international agreements by
DOD personnel. Second, it provides a checklist for drafting or reviewing proposed agreements. Third, it
provides information on Acquisition and Cross-Servicing Agreements (ACSA). Fourth, it reprints status
agreements used in "real world" operations by the US and the UN.

I. AGREEMENTS GENERALLY

Role of the JA

The Operational Lawyer (OPLAWYER) should have at least a general awareness of the international
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agreements between the US and the receiving states to which his unit deploys. Agreements that are not
available at the unit level most likely may be obtained from the Unified Command whose AOR includes the
deployment site. The responsible Unified Command is the focal point for information on relevant
international agreements. Other possible sources for relevant agreements are the Component Command
and the international/operational law divisions of the service TJAGs.

Note that international agreements are not always necessary or applicable in certain scenarios. For
example, no SOFA is necessary with a state when US forces are engaged in combat with forces of that
state. In this instance, the "Law of the Flag" (exclusive jurisdiction by US Forces over US Forces) applies
as a "jurisdictional default." The concept of the "jurisdictional default" to the Law of the Flag also applies
in a jurisdictional "vacuum" wherein no state exists to exercise jurisdiction over US Forces (Somalia, for
example) or a state is unable to exercise jurisdiction (operations in northern Iraq, for example). At some
point, even following combat operations, international agreements must be concluded to settle issues of
jurisdiction and authority. For example, SOFAs were concluded with Grenada and Kuwait after combat
operations in those countries. When a SOFA becomes necessary is both a political and a legal decision,
but the need for a SOFA peaks when a state's infrastructure (police, court systems, tax and customs
authorities, for example) reemerge and tension starts to develop between US Forces' disciplinary and
force protection interests and the interests of the territorial sovereign.

1
International agreements to which the US is party are listed in "Treaties in Force," an official State Department publication.
Unclassified texts are published in Treaties and Other International Agreements (TIAS), and US Treaties (UST), available through the
Government Printing Office, Washington, DC 20402, phone (202) 783-3238. [Beware that publication of an agreement frequently takes
8 to 10 years after signature.] There are also several Internet sites that contain the text of treaties. See generally, Chapter 27, infra.
Texts of classified agreements of interest to the OPLAWYER are most readily available from the Unified Commander into whose AOR
your unit deploys.
The DOD General Counsel is the official repository for most agreements negotiated by DOD personnel. See DEP’T OF DEF .,
DIRECTIVE 5530.3, INTERNATIONAL AGREEMENTS (11 June 1987) w/ C1 (18 Feb. 1991), at ¶ E2 [hereinafter DoD Dir. 5530.3].
However, effective 1 Jan 95, Army staff agencies and MACOMs are required to provide copies of all international agreements to
OTJAG, DAJA-IO within 10 days of entry into force. They will, in turn, forward copies to DoD GC. See Message, Headquarters, Dep’t of
Army, SAAA, subject: Reporting International Agreement Requirements (261622Z Aug 94).

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 After reviewing applicable agreements, the JA must determine whether issues relevant to the
deployment have been adequately addressed in existing agreements or whether new agreements are
required. If a new agreement appears appropriate, the JA should raise the matter through command
2
channels to the appropriate authority under AR 550-51. This authority may be OSD, the service
secretary/chief, the Chairman of the Joint Chiefs of Staff or the cognizant Unified Commander.

The JA should assist in interpreting and implementing international agreements and be prepared to
3
monitor compliance with their terms, as they set out the conditions under which the forces of a sending
state are present in the territory of the receiving state. The most common example, and frequently the
most important agreement to the JA, is the status of forces agreement (SOFA). As the name suggests, a
SOFA sets out the status of the force as an instrumentality of the government of the sending state,
providing for various privileges, immunities and responsibilities, as well as the rights and responsibilities of
individual members of the force. For example, SOFAs typically provide that, as an extension of the
sovereignty of the sending state, visiting forces do not pay import/export taxes in the receiving state.

SOFAs also provide for the status of individual members of the force, including soldiers, civilian
4
employees and the dependents of each. Some SOFAs include contractor personnel as well, but not
many. For example, neither the SOFAs in the Dayton Peace Agreement nor the Partnership for Peace
SOFA signed by Hungary addressed civilian contractors' status. This became a significant issue after they
began deploying into Bosnia and Hungary. All agreements should be analyzed carefully to determine the
classes of persons to whom they apply, usually by studying the definitions of such terms as "the force,"
"US forces" or "members of the force." For example, retired personnel often complain of being denied the
right to shop in commissaries overseas, a right earned by many years of active service. In fact, receiving
states are jealous of the revenues they lose when they exempt visiting forces from customs duties and
other fees, so the SOFA typically limits the classes of persons to whom such privileges are extended.
Retired personnel do nothing to benefit the receiving state, and, from the US perspective, it is not cost
effective to jeopardize negotiation of the agreement to accommodate what is likely to be a very small
number of persons anyway. As a result, they are generally excluded from such coverage. The same
result is common in the case of contractor personnel, who are usually present in a receiving state to make
a profit -- as opposed to soldiers who are present due solely to their military orders.

Perhaps the most important substantive provision of the typical SOFA is criminal jurisdiction, whether
5
exercised by the sending state or the receiving state. Other common provisions include the right to enter
the territory of the receiving state on ID cards and orders rather than passports and visas -- which can
become expensive and time-consuming if required for entire units. In addition to privileges and immunities,
SOFAs may also impose certain obligations on members of the force, such as refraining from any
interference in the internal affairs of the receiving state.
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The NATO SOFA is the "grand-daddy" of SOFAs, but SOFAs with Korea and Japan are also
7
significant. These agreements address status issues in detail, but be alert to the possibility that status

2
DEP’T OF ARMY, REGULATION 550-51, FOREIGN COUNTRIES AND NATIONAL : AUTHORITY AND RESPONSIBILITY FOR NEGOTIATING ,
CONCLUDING , FORWARDING , AND DEPOSITING OF INTERNATIONAL AGREEMENTS (1 May 1985) [hereinafter AR 550-51]. See also DOD
Dir. 5530.3; SECNAVINST 5710.25A, INTERNATIONAL AGREEMENTS (2 Feb. 95); and AFR 51-701, NEGOTIATING , CONCLUDING ,
REPORTING AND MAINTAINING INTERNATIONAL AGREEMENTS (6 MAY 1994). Both the Directive and the implementing regulations are
(and have been for some time) under revision. See generally, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION, 2300.01 (15
Sept. 94) [hereinafter CJCSI 2300.01].

3
Be alert to the restrictions contained in ¶K of DOD DIR 5530.3 on raising issues of noncompliance on matters of policy significance.

4
See generally, David S. Gordon, Individual Status and individual Rights Under the NATO Status of Forces Agreement and the
Supplementary Agreement with Germany, 100 MIL. L. REV. 49 (1983).

5
For a discussion of DOD policies on foreign criminal jurisdiction, see AR 27-50/SECNAVINST 5820.4G/AFR 110-12; D EP’T OF DEF .,
DIRECTIVE 5525.1, STATUS OF FORCES POLICIES AND INFORMATION (7Aug. 79) w/ C1 (9 Apr. 85); and, 32 C.F.R. pt. 151.

6
The NATO SOFA is of great value as a model. The Partnership for Peace (PFP) SOFA, in fact, states that the NATO SOFA applies
except where made expressly inapplicable. The PFP SOFAs formal name is the Agreement Among the States Parties to the North

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Atlantic Treaty and the Other States Participating in the Partnership for Peace Regarding the Status of Their forces, entered into effect
January 13, 1996, State Dept. No. 96-31, KAV No. 4512, 1996 WL 107846. An extract of the PFP SOFA and its protocol is provided,
infra.

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One can find the Korean SOFA at 2 U.S.T. 1652, T.I.A.S. No. 4510, 373 U.N.T.S. 248. One can find the SOFA with Japan at 2 U.S.T.
1677, T.I.A.S. No. 6127, 674 U.N.T.S. 163. Both are reprinted in D EP’T OF ARMY, PAMPHLET 27-24, SELECTED INTERNATIONAL
AGREEMENTS, VOLUME II, ch. 2 (1 Dec. 76).
Not counting SOFA-like agreements for limited purposes or for short durations like exercises, the United States currently has
formal status of forces agreements with 81 countries the existence of which is unclassified. Those countries are:

Albania [PFP SOFA]

Antigua and Barbuda (T.I.A.S. No. 9054)
Australia (T.I.A.S. No. 5349)
Bahamas
Bahrain (T.I.A.S. No. 8632)
Belgium (T.I.A.S. No. 2846)
Bosnia-Herzegovina [respecting IFOR]
Brunei
Bulgaria [PFP SOFA]
Cambodia
Canada (T.I.A.S. No. 2846, 3074)
Chad [activity specific]
Colombia (T.I.A.S. No. 8986)
Croatia [respecting IFOR]
Czech Republic [PFP SOFA]
Denmark (T.I.A.S. No. 2846, 4002)
Diego Garcia [with the United Kingdom] (T.I.A.S. No. 6196, 8230)
Dominica [activity specific]
Dominican Republic
Egypt (T.I.A.S. No. 10238)
Estonia [PFP SOFA]
Ethiopia
Federated Republic of Yugoslavia [respecting transiting IFOR]
Federated States of Micronesia [Compact with the U.S.]
France (T.I.A.S. No. 2846)
Germany (T.I.A.S. No. 2846, 5351, 5352, 7759)
Greece (T.I.A.S. No. 2846, 3649)
Grenada [activity specific]
Haiti
Honduras (T.I.A.S. No. 10890, 11256)
Hungary [PFP SOFA]
Iceland (T.I.A.S. No. 2295)
Iran [activity specific] (T.I.A.S. No. 7963)
Israel
Italy (T.I.A.S. No. 2846)
Japan (T.I.A.S. No. 4510)
Jordan
Kenya
Korea (T.I.A.S. No. 6127)
Kuwait
Latvia [PFP SOFA]
Lithuania [PFP SOFA]
Luxembourg (T.I.A.S. No. 2846)
Macedonia [PFP SOFA, 35 I.L.M. 1338]
Malaysia
Marshall Islands [Compact with the US] (T.I.A.S. No. 11671)
Mongolia
Morocco [classified supplement]
The Netherlands (T.I.A.S. No. 2846, 3174)
New Zealand (T.I.A.S. No. 4151)
Norway (T.I.A.S. No. 2846, 2950)
Oman
Palau
Panama (T.I.A.S. No. 10032)
Papua New Guinea (T.I.A.S. No. 11612)
Paraguay
Peru [activity specific]
Philippines

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provisions may be included in another type of agreement, such as an "access agreement" or "defense
cooperation agreement." A lease is usually not regarded as an international agreement, but a lease for
facilities overseas that includes status provisions -- and there are precedents -- rises to that level.
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Agreements other than SOFAs are also important. A mutual defense treaty may obligate the US to
come to the aid of another country in case of armed attack. Another agreement may authorize the US to
pre-position war material in the territory of a receiving state to avoid lengthy logistics tails in case of a
contingency. Others may provide for the US to loan cryptological (communications security, or COMSEC)
gear to another country in the interest of interoperability. Other types of agreements may provide for a
wide variety of defense activities, such as cooperative research and development, exchange of personnel,
mutual logistics support (cross-servicing), fuel storage, combined exercises, training for the armed forces
of the receiving state, access, host nation support, exchange of military information, intelligence exchange,
etc.

The Nature of International Agreements

International agreements are commonly misperceived as elaborate documents signed at solemn

ceremonies by heads of state, with the advice and consent of the Senate and formal ratification by the
President. While some agreements certainly are of this type, the majority of agreements with which JAs
will be concerned are on a much lower level.

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
9
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

Portugal (T.I.A.S. No. 2846) [Lajes Agreement is unpublished]

Qatar
Romania [PFP SOFA]
Russia [nuclear activity specific]
St. Kitts and Nevis
St. Vincent and the Grenadines
Saudi Arabia [classified supplement] (T.I.A.S. No. 2812, 5830, 7425)
Singapore
Slovak Republic [PFP SOFA]
Slovenia [PFP SOFA]
Solomon Islands
Somalia
Spain (T.I.A.S. No. 2846)
Sri Lanka [activity specific]
Sudan (T.I.A.S. No. 10322)
Switzerland [for arms control delegations] (T.I.A.S. No. 7523, 7582, 10298, 10056, 10414, 11188)
Tonga
Turkey (T.I.A.S. No. 2846, 3020, 3337, 6582, 9901)
Union of Soviet Socialist Republics [INF]
United Arab Emirates
United Kingdom (T.I.A.S. No. 2559, 2846, 6196, 11637)
Western Samoa
Zaire
The countries in italics have classified agreements. This list comes substantially from an information paper by Mr. Richard Erickson, Air
Force Office of the Judge Advocate General, International Law Division (12 Aug. 96).

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International law treats all agreements equally. US domestic law, however, regards "treaties" and "other international agreements" as
distinct. Under the Constitution, a treaty requires the advice and consent of two-thirds of the Senate, while the President may enter into
an executive agreement pursuant to his own constitutional powers to conduct the foreign affairs of the United States, or as Commander
in Chief of the armed forces. As a result, security "commitments," which are obligations binding under international law, are embodied in
treaties made with the advice and consent of the Senate. By comparison, a security "arrangement," a pledge to take certain action in
the event of a threat to another country's security, is frequently made by executive agreement solely on the constitutional authority of the
President.

9
See AR 550-51.

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status or position of the signer is not as important as the representation that he speaks for his government.
The OPLAWYER 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. A good technique, used by SOUTHCOM, is to conclude both "Pol
to Pol" and "Mil to Mil" Dip Notes. The former addresses traditional SOFA issues; the latter addresses
more operational, but very important, issues: flying the American flag, guarding shipments in transit, etc.
Forms that usually are not regarded as international agreements include contracts made under the FAR,
credit 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.
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Negotiating and Concluding International Agreements

Historically, foreign relations have been the bailiwick of the President, and the majority of the
international agreements to which the US is party are "executive agreements" made pursuant to powers
vested in the President by the Constitution. The power to enter into status of forces agreements, for
example, is derived at least in part from the President's authority as Commander-in-Chief of the Armed
Forces.

The President's authority over foreign relations is not absolute, however. His power to make treaties is
tempered "by and with the advice and consent of [two-thirds of] the Senate." In addition, it is Congress
which is specifically empowered by Article II, section 8, of the Constitution to regulate commerce with
foreign nations. Agreements frequently require the expenditure of public funds; no money may be drawn
from the treasury but in consequence of appropriations made by law; and Congress enacts appropriations
bills. As a result, the Congress sees itself as an equal partner with the President in the international
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agreements arena.

Perceptions of presidential excesses have sometimes caused concern in Congress, resulting in

12
assertions of congressional authority. The Case-Zablocki Act demonstrates congressional interest in
agreements concluded by the executive branch. It requires transmission of the text of any executive
agreement to Congress within 60 days of signature. SECSTATE determines if a proposed draft is an
"international agreement" and, if so, must approve it before any agreement is concluded on behalf of the
US. Case-Zablocki also specifically prohibits the expenditure of funds on any unreported agreement.
Regulatory guidance is found in State Department Circular No. 175 of 13 Dec 55, as amended, codified in
11 FOREIGN AFFAIRS MANUAL Chapter 700. See also DEP’T OF ARMY, PAMPHLET 27-161-1, LAW OF PEACE,
VOLUME I (1 Sept. 1979), at 8-12 [hereinafter DA PAM 27-161-1].
13
For DOD personnel involved in international agreements, DOD Directive 5530.3 is the "bible." It
discusses international agreements in detail and assigns responsibilities for their negotiation and

10
For a thorough discussion of DoD involvement in this area, see Richard J. Erickson, The Making of Executive Agreements by the
United States Department of Defense: An Agenda for Progress, 13 B.U. INT ’L L.J. 45 (1995).

11
See Missouri v. Holland, 252 U.S. 416 (1920), for a discussion of the treaty power and the relative authorities of the President and the
Congress in this arena. Note also that there are differences between executive agreements made solely under presidential authority and
agreements based on combinations of presidential and congressional authority. For example, cross-servicing agreements could
probably be supported solely on the President's authority as Commander-in-Chief, but they are also specifically authorized by 10 U.S.C.
§ 2342.

12
Pub. L. 92-403, codified at 1 U.S.C. § 112b.

13
The importance of compliance with DOD Dir. 5530.3 cannot overemphasized. Chairman, Joint Chiefs of Staff, Instruction 2300.01
should also be consulted. See also service implementers, n. 2, supra.

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conclusion. It designates approval authorities for various types of agreements and sets out procedural
requirements for obtaining approval to negotiate and conclude an agreement. No DOD personnel are
authorized to negotiate or conclude an international agreement without the prior written approval of the
cognizant approval authority. Any agreement having "policy significance," requiring new legislation or
involving a major unprogrammed fiscal obligation must be approved by the Undersecretary of Defense
(Policy). "Policy significance" generally means that by its nature the agreement requires approval,
negotiation or signature at the OSD or diplomatic level, creates a new security commitment or involves
14
significant technology transfer. During DESERT SHIELD and DESERT STORM, all agreements in the
theater of operations were construed as having policy significance, even one as simple as providing solely
for the mutual waiver of claims between US and British forces. Therefore, it is a pretty good rule to
assume any agreement with another foreign entity has policy significance unless advised otherwise by the
international law department of the responsible service or the CINC staff judge advocate office. Which
office one goes to will depend upon how the procedural authority for the negotiations was delegated in the
first place. (See discussion on delegation of procedural authority, infra.) The Undersecretary of Defense
(Acquisitions) must approve any agreement providing for use of other-than-competitive contracting
procedures. Virtually all agreements must have the concurrence of the DOD General Counsel.

Authority to negotiate an agreement is an extraordinarily important matter. There are precedents for
the Chairman of the Joint Chiefs of Staff to order DOD personnel who have negotiated an agreement
without proper authorization to repudiate the agreement, and for SECSTATE to order the ambassador to
do likewise. DOD personnel approached by foreign representatives seeking to initiate negotiation of an
agreement for which authority to negotiate has not been obtained are required to report the encounter to
the appropriate authority and await authorization before participating in negotiations. The rule of thumb is
that if you have to ask if you are authorized to negotiate an agreement, you probably are not. During
negotiations, DOD personnel should ensure that no position deviating from existing instructions is
communicated to the other party and that no proposal beyond existing authorization made by the other side
is agreed to without clearance from the original approval authority. In this regard, remember that agreeing
to a proposal "subject to approval by higher authority" is prohibited. DOD Directive 5530.3 regards such
action as conveying to another party the substantive position of the United States without authority.

Note that DOD Directive 5530.3 addresses only the procedural aspects of negotiating and concluding
an agreement. Substantive authority for an agreement is a discrete, entirely separate issue and derives
from the law applicable to the functional matter that is the subject of the agreement. Substantive legal
authority for cross-servicing agreements, for example, is found at 10 U.S.C. § 2342, while 10 U.S.C. § 421
provides a basis for loaning cryptological equipment to a foreign force in the interests of interoperability
with US forces.

The procedures prescribed by 5530.3 provide for the DOD component having the primary interest in the
agreement to request authority to negotiate/conclude by forwarding a draft text or outline of the proposed
agreement to the cognizant approval authority. A Memorandum of Law citing specific authority for each
obligation the USG will assume under the agreement must be included, as well as a fiscal memo specifying
the estimated costs of obligations to be assumed by the USG under the agreement and the source of
funds to be obligated. A statement that additional funds for the purpose of the agreement will be
requested for a specific fiscal year may be used in lieu of citing specific funding sources. A technology
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assessment/control plan prepared in accordance with DOD Directive 2040.2 is also required.

One particularly important feature of DOD Directive 5530.3 is its delegation of approval authority over
certain classes of agreements to the Chairman, Joint Chiefs of Staff (CJCS), and the Service Secretaries.
CJCS has further delegated much of his authority to the Unified Commanders (CINCs) in CJCSI 2300.01.

14
For further guidance on what constitutes “policy significance,” see 32 C.F.R. § 181.2(a)(2); DoD Dir. 5530.3, at ¶ H(4)(a); and, CJCSI
2300.01, at Encl A, ¶ 4.

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OPLAWYER's should not overlook the technology transfer implications of international programs. When in doubt, consult the National
Disclosure Policy expert, often found in the S-G-J 2 community.

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The CINC's SJA is a prime source of assistance to the deploying JA in locating pertinent international
agreements, as well as for assistance in negotiating and concluding any necessary additional agreements.

AR 550-51 further delegates to Heads of Army Staff agencies and MACOMs much of the authority of
the Secretary of the Army to negotiate and conclude international agreements. It permits further
delegation of this authority, but not the responsibility for ensuring compliance with regulatory requirements.
Given their role in the agreement process, MACOMs may also be possible sources of assistance in
locating or concluding international agreements. In general terms, AR 550-51 establishes procedures for
negotiating and concluding international agreements to be followed in the Department of the Army (DA).
Other important aspects of AR 550-51 include its definitions of the terms "negotiation" (¶ 3c) and
16
"conclusion" (¶ 3d) and a list of documents considered not to constitute international agreements (¶ 3b).

NOTE: Three copies of each international agreement concluded by an Army element must be submitted
within 10 days of entry into force to OTJAG International and Operational Law Division, 2200 Army
Pentagon, Washington, D.C. 20310-2200 (FAX DSN 223-5120 or commercial 703-693-5120. (OTJAG will
then provide requisite copies of agreements to the DoD General Counsel and DoS Assistant Legal Advisor
17
for Treaty Affairs.)

Subjects of International Agreements

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 the deploying JA, status of forces agreements are probably the most important,
18
followed by logistics support agreements.

Pre-positioning of Material. If US equipment or material is to be pre-positioned in a foreign country, an

international agreement should be concluded which meets the following minimum requirements:

-- Host nation permission for the US to store stocks there.

-- Unimpeded US access to those stocks.
-- Right of removal, without restriction on subsequent use.
-- Adequate security for the stocks.
-- 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 US.)
-- Appropriate privileges and immunities (status) for US personnel associated with storage,
maintenance or removal of the stocks.

In some cases, the DOD General Counsel has allowed some lee-way in negotiating prepo agreements,
provided host government permission for US storage in its territory and unequivocal acknowledgment of US
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 stocks -- only custodial interests -- and that prepo is solely for US use.
"Access" to the pre-positioned stocks need not be addressed explicitly, unless US access is necessary to
safeguard them. There can be no express restrictions on US use. Prior "consultation" for US 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 prepo's sole purpose is to meet US requirements. "Security" must
be specifically addressed only when stores are at risk, due to their value. "Privileges and

16
See also 32 C.F.R. pt. 181.

17
See n.1, supra.

18
As mentioned above, substantive authority for international agreements is derived from the law applicable to the subject matter. For
example, mutual support agreements are authorized by 10 U.S.C. § 2342; defense assistance programs are authorized by the Foreign
Assistance Act and the Arms Export Control Act, 22 U.S.C. 2151 et seq and 22 U.S.C. § 2751 et seq, respectively; and cryptological
support by 10 U.S.C. § 421.

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immunities" are required only when it is necessary for US 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). (See the section on ACSA, infra.) 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, US Forces and those of an
19
eligible country 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
20
objectionable to other sovereigns. Authority to conclude ACSA is withheld to JCS by CJCSI 2300.0,
para. 1.b (5) (may be delegated).

For NATO, there is an aggregate ceiling of $200 million per year on the total amount of liabilities the US
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
21
each year is allocated by the cognizant Combatant Commander.

There are some restrictions on ACSA. For example, it 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 cross-servicing 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 state's 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.
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Typical Status Provisions

As mentioned earlier, status of forces is probably the area of most concern to the JA. The following
discussion is designed to serve as a partial checklist of some of the more important issues that should be
addressed in an international agreement pertaining to an overseas deployment. It is not all-inclusive.
Many of these issues will pertain to both operational deployments and overseas deployment for training.

19
Eligible countries include all NATO countries, plus non-NATO countries designated by SECDEF. Criteria for eligibility include:
defense alliance with the US; stationing or homeporting of US Forces; pre-positioning of US stocks; or hosting exercises or staging US
military operations.

20
See 10 U.S.C. § 2343.

21
See 10 U.S.C. § 2347.

22
For a good succinct review of SOFA provisions, see Richard J. Erickson, Status of Forces Agreements: A Sharing of Sovereign
Prerogative, 37 A.F. L. REV. 137 (1994).

3-8
1. 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
23
receiving state , and, in the absence of agreement, US personnel are subject to the criminal jurisdiction of
the receiving state. On the other hand, the idea of subjecting US personnel to the jurisdiction of a country
in whose territory they are present due solely to orders to help defend that country raises political
concerns within the US. As a result of the Senate's advice and consent to ratification of the NATO
24
SOFA, DOD policy is to maximize the exercise of jurisdiction over US personnel by US authorities.

An exception to the general rule of receiving state jurisdiction is deployment for combat, wherein US
25
forces are generally subject to exclusive US jurisdiction. As the exigencies of combat subside, however,
26
the primary right to exercise criminal jurisdiction may revert to the receiving state.

Consistent with the policy of maximizing US jurisdiction over its own personnel, the approach most
desirable from the US perspective is some form of diplomatic immunity for deployed soldiers. While some
nations may balk at extending the complete civil and criminal immunity of diplomatic agents to large number
of military personnel, others may consent to granting US personnel the privileges and immunities accorded
27
the administrative and technical staff of the US embassy. In many cases, this may be accomplished by
simply incorporating by reference the privileges and immunities already granted to US military personnel
under another agreement, such as a defense assistance agreement that included personnel assigned to
28
the US embassy or to a Military Assistance Advisory Group (MAAG).

While there are some offenses as to which jurisdiction may be exclusive, the NATO SOFA sets up a
regime of mostly concurrent jurisdiction, with specific rules for determining which state has the primary right
29
to exercise its jurisdiction. SOFA's with Japan and Korea follow this model.

23
This assumes a permissive entry or an entry. If the entry is semi-permissive (Haiti) or is a forced entry, then the law of the flag
concept in international law would provide immunity from host nation jurisdiction. See Host Nation Law section, infra, ch. 13.

24
See DEP’T OF ARMY, REGULATION 27-50, LEGAL SERVICES: STATUS OF FORCES POLICIES, PROCEDURES, AND INFORMATION (15
Dec. 89), at App. AR 27-50/SECNAVINST 5820.4G/AFR 110-12. See also 32 C.F.R. pt. 151.

25
See Schooner Exchange v. McFaddon, 7 Cranch 116 (U.S. 1812). "Generally" is used because US forces could conceivably be
tried for war crimes in a forum other than US or military courts. See also text accompanying note 1.

26
After Operation URGENT FURY, exclusive criminal jurisdiction over US soldiers reverted to Grenada. A JA on-scene drafted an
Exchange of Notes by which Grenada waived all criminal jurisdiction over US forces. Because it took 5 months to be finalized, an
"informal understanding" to the same effect was reached between the JA and the General General of Grenada. During DESERT
STORM, the US retained exclusive jurisdiction over it personnel in Saudi Arabia under an agreement with an indefinite term for the
duration of the hostilities. (The agreement actually "extrapolated" the USMTM Accords to US Forces.) Since there was no formal
ending to the hostilities, identifying a date certain on which the agreement -- and its jurisdictional provisions -- no longer apply is difficult
and politically sensitive. As units deployed to Saudi Arabia in 1992 for Operation SOUTHERN WATCH and in 1994 for Operation
VIGILANT WARRIOR, the question -- tacit and unanswered -- was whether the DESERT STORM agreement remained in effect. Due to
the calibre of the personnel involved, or perhaps just fortuitously, no incident has occurred requiring an answer to that question. Note,
however, that there is a SOFA with Kuwait. Law of the Flag applied in Haiti until a multinational force (MNF) SOFA could be nrgotiated
with the Aristide Government. A UN status of mission (SOMA) and a U.S.- Haiti SOFA followed in January and March 1995,
respectively.

27
See Vienna Convention on Diplomatic Relations, arts. 29 - 36, 3 U.S.T. 3227, T.I.A.S. No. 7502, 50 U.N.T.S. 95, reprinted in DEP’T
OF ARMY, PAMPHLET 27-24, SELECTED INTERNATIONAL AGREEMENTS, VOLUME II 3-53 - 3-60 (1 Dec. 76). Members of the A&T staff
are immune to the criminal jurisdiction of the receiving state and from its civil jurisdiction for official acts. See generally, DA PAM 27-
161-1, ch. 5.

28
This was done in 1982 for Ahuras Tara in Honduras. The only previous agreement concerning status of US personnel in Honduras
was the 1954 Mutual Military Assistance Agreement that stated US personnel would operate as part of the embassy and would be
"accorded all privileges and immunities conferred by international custom to Embassy personnel...."

29
The flowchart below will lead the U.S. practitioner to the correct answer once the reader has properly identified the persons status
under the NATO SOFA, art. 1. This methodology is slightly different than that actually provided in the NATO SOFA, art. VII. Because of
the current U.S. domestic law, U.S. federal courts, particularly U.S. military courts, usually lack jurisdiction to try civilians for offenses
committed in another country. See Reid v. Covert, 354 U.S. 1 (1957)(dependent); McElroy v. Guagliardo (1960)(civilian employee).

3-9
 NATO MODEL CONCURRENT CRIMINAL
JURISDICTION FLOWCHART IN PRACTICE
IS THE PERSON
IS THE SUSPECT Yes VICTIMIZED A MEMBER YES
A SOLDIER? OF THE FORCE? Primary
Concurrent SS
NO
Jurisdiction
DOES THE PROPERTY YES
SOLELY BELONG TO THE SS
OR IS IT SOLELY OWNED BY A
No MEMBER OF THE FORCE?
S
NO YE
Primary
IS THE SUSPECT WAS THE SOLDIER ACTING Concurrent RS
IN THE PERFORMANCE OF NO
A DEPENDENT OR
THEIR OFFICIAL DUTIES?
Jurisdiction
A MEMBER OF THE
CIVILIAN
COMPONENT?
Yes (Reid v. Covert) Exclusive RS
Jurisdiction
No (THEY ARE NOT MEMBERS OF THE FORCE)

In addition, they provide specific rights for an accused comparable with traditional US notions of due
process of law. In countries in which the legal system and its procedural protections are significantly
different from those of the US, it may be desirable to obtain an agreement for the US to exercise its
jurisdiction in all cases.

If the receiving state will not agree to allowing the US to exercise its jurisdiction exclusively, an FCJ
arrangement similar to that in the NATO SOFA may be negotiated. The host nation may retain the right to
prosecute US personnel for offenses that are either exclusive violations of its law or those over which it has
30
the primary right to exercise concurrent jurisdiction. In this case, the agreement should specify the
procedural protections to be accorded US personnel in cases tried by the host nation. It will be difficult, if
not impossible, to obtain OSD approval for agreements whose procedural protections do not approximate
US concepts of due process of law.

Sometimes nations are unwilling to enter into an international agreement conferring jurisdiction upon
U.S. Forces. If the US 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 31
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 forcing 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 administrative and technical staff, privileges and immunities (A&T, P&I). In any case, it is
essential that the OPLAWYER acquire a copy of the host nation’s Visiting Forces Act before one deploys
into that country.

See also Susan S. Gibson, Lack of Extraterritorial Jurisdiction Over Civilians: A New Look at an Old Problem, 148 MIL. L. REV. 114
(1995). See generally, Brian H. Brady, Notice Provisions for United States Citizen Contractor Employees Serving with the Armed
Forces of the United States in the Field: Time to Reflect Their Assimilated Status in Government Contracts?, 147 MIL. L. REV. 1
(1995). However, Congress is gradually closing this domestic jurisdictional gap. See, e.g., 18 U.S.C. 2401 (1996).
30
This is the current situation in Honduras. See Protocol 1 to the 1954 Agreement, signed 20 May 85, entered into force 8 Apr 87.

31
See, e.g., Visiting Forces Act of Jamaica, Act 20 of 1975. Pursuant to the Jamaican statute, the Michael Manley, Chairman,
Jamaican Defense Board, designated the United State as a qualifying nation for the statute’s protection on 11 April 1991.

3 - 10
 The last situation encountered by deployed units occurs when US forces enter a host nation totally
32
subject to the host nation’s law. While it is generally US policy not to do this, there are some situations
where a political decision is made to send US forces into a country without any jurisdictional protections.
The most commonly known example of this is the annual training exercise in Thailand called Cobra Gold.
33
US forces send thousands of soldiers to Thailand and they are totally subject to Thai law. This requires
the OPLAWYER to acquire an English translation of, and become intimately familiar with, Thai criminal and
traffic law. The OPLAWYER must then inform the deploying units of the host nation’s laws to ensure their
compliance. To do this effectively, the OPLAWYER should participate in any in-country planning
conference.

2. Claims. Claims for damages almost always follow deployments of US forces. Absent agreement to
the contrary (or a combat claims exclusion), the US 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 US forces or from some
other form of US presence, it is not uncommon for a receiving state to agree to pay third party claims
caused by US forces in the performance of official duty. As a result, the US 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 US laws and
34
regulations, i.e., the Foreign Claims Act.

3. Force Security/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 US
commander of his responsibility for the safety (i.e., self-defense) of his unit. As part of the predeployment
preparation, the JA 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 US to be responsible for security internal to the areas and facilities it uses. It may also be
desirable to provide for the US 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. [Emphasis added.]
This may include a provision allowing military police the authority to apprehend US personnel off the
installation. The relative responsibilities of host nation and US commanders is a sort of "sliding scale;"
forces deployed for combat operations should expect little security from the receiving state.

4. 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, and -- in an emergency -- the issuance of visas
unacceptably slow. Even in peacetime, the time it takes to process visa requests impacts significantly on
operational flexibility. As a result, it is desirable to provide that US personnel may enter and exit the
territory of the receiving state on their military identification cards and orders.

5. Customs and Taxes. While US Forces clearly should pay for goods and services requested and
received, sovereigns do not generally tax other sovereigns. As a result, US 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.

32
For example, when the Philippines recently terminated legal protections to U.S. DoD personnel, the U.S. responded by suspending all
official travel by DoD personnel to the Philippines until further notice. Message, Chief of Naval Operations (N1), subj: Suspension of
Military Activities in the Philippines (052058Z Feb 97).

33
Other examples include those soldiers conducting POW/MIA Remains recovery operations in Vietnam and North Korea.

34
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.

3 - 11
6. Contracting. Specific authority for US forces to contract on the local economy for procurement of
35
supplies and services not available from the host nation should be included. 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.

7. Vehicle Registration/Insurance/Drivers' Licenses. The receiving state may attempt to require that US
vehicles be covered by third party liability insurance and that US drivers be licensed under local law. These
efforts should be resisted, and provisions specifically exempting US forces from these requirements should
be included in the SOFA or exercise agreement.

The US Government is "self-insured." That is, the USG bears the financial burden of risks of claims for
36
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 US 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 US drivers' licenses of US
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 commander’s use of frequencies
within the electro-magnetic 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 spectrum -- as was granted in the Dayton Peace Agreement to IFOR -- one
should not expect such acquiesce in future operations. Early and close coordination between US and host
37
nation communications assets should be the norm.

The U.S. as a Receiving State.

In the past, the focus of the Status of Forces was on U.S. servicemembers deployed to other countries.
However, in the post-Cold War era that is no longer exclusively the case. Foreign forces on a routine
bases come to the U.S. for training. In fact, some NATO nations have units permanently stationed in the
38
U.S. What is their status? This question depends on what nation’s 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.
39
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
35
An example is an MOU concluded by the USAREUR Exercise Division (in conjunction with the Moroccan-US Liaison Office) with the
Moroccan Force Armees Royal for AFERDOU Exercise 87.

36
10 U.S.C. § 2734.

37
See Chairman, Joint Chiefs of Staff, Instruction 6740.01, Military Telecommunications Agreements and Arrangements Between the
United States and Regional Defense Organizations or Friendly Foreign Nations (18 Sept. 1996), for more detail information about
telecommunications agreements.

38
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.

39
Korean SOFA preamble, reprinted in DA PAM 27-24, supra note 7, at 2-109.

3 - 12
 40
such agreements. With nations party to the NATO SOFA and PFP SOFA the jurisdictional methodology
41
is same as when the U.S. is sending forces, only the roles are reversed.

When foreign soldiers come to the U.S. to train (i.e. JRTC, NTC) you still need to “check your traps.”
The OPLAWYER should insure coordination occurs with DOJ, INS, FBI, and the local authorities (military
and civilian) in the area where foreign soldiers will be stationed. For example, what type of medical
42
support is the foreign soldier going to receive free of charge.

40
Agreements, called counterpart agreements, also exist with Spain, Israel and Singapore. These agreements essential provide these
nations’ soldier as much favorable treatment as can be given under federal statutes. However, these soldiers are still subject to state
law.
A third possibility does exist. The U.S. has its own Visiting Forces Act. 22 U.S.C. 701 - 706. A Presidential finding is
required for a foreign force’s soldiers to qualify under this statute. 22 U.S.C. 706. However, as yet, this statute only currently applies to
Australia forces in the U.S. See Pres. Proc. No. 3681. See also DEP’T OF DEF ., DIRECTIVE 5525.3, JURISDICTION OF SERVICE
COURTS OF FRIENDLY FORCES IN THE UNITED STATES (18 Aug. 66).

41
Nations that are parties to the NATO SOFA are: Belgium, Canada, Denmark, France, Germany, Greece, Italy, Luxembourg, The
Netherlands, Norway, Portugal, Spain, Turkey, United Kingdom, and the United States.
Nations that are parties to the PFP SOFA are: Albania, Bulgaria, Canada, Czech Republic, Estonia, Hungary, Latvia,
Lithuania, Macedonia, Romania, Slovak Republic, Slovenia, United States, and Uzbekistan. Information Matrix, OASD/ISA/FMRA (29
Jan. 97).

42
See 10 U.S.C. 2549 and DEP’T OF DEF ., DIR. 6310.7 Medical Care for Foreign Personnel Subject to the North Atlantic Treaty
Organization (NATO) Status of Forces Agreement (SOFA) (18 Dec. 62)

3 - 13
 II. 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 indices for
redundancy.

2. Procedural authority for negotiation.

a. Approval authority (Does the agreement have "policy significance?"):

_________________________________________

b. Is there 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 negotiator's 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 US will assume under the agreement. Look
especially for:
(1) Security commitments.
(2) Things that cost money.
(3) Things that impact on operational flexibility.
(4) Provisions affecting the privileges, immunities, responsibilities and quality of life of US
personnel.

b. For each commitment or obligation, articulate a corresponding legal authority, e.g.:

(1) US Constitution.
(2) Statute.

3 - 14
 (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 US Government,
to the jurisdiction of the receiving state?

c. If under the agreement US 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 US
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 US
standards/specifications?

f. If construction or improvement of facilities is funded by the US, 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 established by the Comptroller
General or subordinate comptroller officials?

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 cars, 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 US, 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 US to the other party to the agreement?

3 - 15
 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 US 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 USC § 112) and enclosure (6) to DOD Directive
5530.3?

3 - 16
 III. SAMPLE STATUS OF FORCES AGREEMENTS

The NATO, Japan, and Korea SOFAs, and the NATO SOFA Supplementary Agreement are contained in
DA Pam 27-24, Selected International Agreements, Volume II (1976), which should be in every
deployment library. The following agreements are somewhat eclectic, but illustrate the breadth and
variance of international "status" agreements. SOFAs with Haiti and the MNF (including the US), and Haiti
and UNMIH, illustrate the political and practical difficulties in concluding meaningful agreements. Similarly,
consider the continued difficulties in concluding SOFAs with states in the former Yugoslavia. For example,
US Forces operated in Macedonia for months with no SOFA. Even after the Dayton Peace Agreement
was signed issues concerning jurisdiction of civilian contractors arose. As Joint Endeavor commenced and
IFOR personnel entered Hungary, a number of issues associated with the first significant deployment of
NATO forces into a PFP country surfaced. To add emphasis to the importance of understanding various
SOFAs, the United States is becoming a more frequent receiving state. During the PFP exercise
Cooperative Nugget, jurisdiction issues, including requests for political asylum, were faced by Judge
Advocates at the JRTC.

UN "MODEL" SOFA

I. DEFINITIONS

1. For the purpose of the present Agreement, the following definitions shall apply:

a. "Participating State" means a State contributing personnel to serve in or assist with the United
Nations peace-keeping operation.

b. "Convention" means Convention on the Privileges and Immunities of the United Nations adopted
by the General Assembly of the United Nations on 13 February 1946.

c. "Government" means the Government of the host country or Administration having de facto
authority over the territory and/or the area of operations.

d. "United Nations peace-keeping operation and its members" includes the Special
Representative/Commander, civilian component, and military component.

e. "Special Representative/Commander" is the individual so designated by the Secretary-General.

In this Agreement, any reference to the Special Representative/Commander shall, except in regards to
paragraph 23, include any member of the United Nations peace-keeping operation to whom the Special
Representative/Commander has delegated a special function or authority.

f. "Civilian component" consists of United Nations officials and others assigned by the Secretary-
General to assist the Special Representative/Commander or made available by the participating States to
serve in the United Nations peace-keeping operation.

g. "Military component" consists of military and special civilian personnel made available by the
participating States to serve as part of the United Nations peace-keeping operation, including support
personnel under the command of their participating State, who, for purposes related to the mandate of the
United Nations peace-keeping operation, accompany and assist the operation.

II. APPLICATION OF THE PRESENT AGREEMENT

2. Unless specifically provided otherwise, the provisions of the present Agreement and any obligation
previously undertaken by the Government and specifically identified in the documents accompanying this
Agreement, or any privilege, immunity, facility or concession granted to the united Nations peace-keeping
operation or any member thereof apply in the territory only.

3 - 17
 III. APPLICATION OF THE CONVENTION

3. The Convention on the Privileges and Immunities of the United Nations of 13 February 1946 shall apply
to the United Nations peace-keeping operation subject to the provisions specified in the present
Agreement.

OR

3. The United Nations peace-keeping operation, its property, funds and assets, and its members, including
the Special Representative/Commander, shall enjoy the privileges and immunities specified in the present
Agreement as well as those provided for in the Convention, to which the (host country) is a Party.

4. Article II of the Convention, which applies to the United Nations peace-keeping operation, shall also
apply to the property, funds and assets of the participating States used in connection with the United
Nations peace-keeping operation.

IV. STATUS OF THE UNITED NATIONS PEACE-KEEPING OPERATION

5. The United Nations peace-keeping operation and its members shall refrain from any action or activity
incompatible with the impartial and international nature of their duties or inconsistent with the spirit of the
present arrangements. The United Nations peace-keeping operations and its members shall respect the
laws and regulations all local laws and regulations. The Special Representative/Commander shall take all
appropriate measures to ensure the observance of the obligations.

6. The Government undertakes to respect the exclusively international character of the United Nations
peace-keeping operation.

United Nations flag and vehicle markings

7. The Government recognizes the right of the United Nations peace-keeping operation to display within
the territory the United Nations flag on its headquarters, camps, or other premises, vehicles, vessels and
otherwise as decided by the Special Representative/Commander. Other flags or pennants may be
displayed only in exceptional cases. In these cases, the United Nations peace-keeping operation shall give
sympathetic consideration to observations or requests of the Government.

8. Vehicles, vessels, and aircraft of the United Nations peace-keeping operation shall carry a distinctive
United Nations identification which shall be notified to the Government.

Communication and Postal Services

9. The United Nations peace-keeping operation shall enjoy facilities in respect to communications provided
in article III of the Convention and shall, in coordination with the Government, use such facilities as may be
required for the performance of its task. Issues with respect to communications which may arise and
which are not specifically provided for in this Agreement shall be dealt with pursuant to the relevant
provisions of the Convention.

10. Subject to the provisions of paragraph 9:

(a.) The United Nations peace-keeping operation shall have authority to install and operate a radio
sending and receiving stations as well as satellite systems to connect appropriate points within the [host
country/territory] of the Government with each other, and with the offices of the United Nations located in
other countries and to exchange traffic with the United Nations global telecommunications network. The
telecommunications services shall be operated in accordance with the International Telecommunications
Convention and Regulations and the frequencies on which any such station may be operated shall be
decided upon in cooperation with the Government and shall be communicated by the United Nations to

3 - 18
 the International Frequency Registration Board. In addition, authorization is granted for each participating
State to install and operate communications equipment for the purpose of contacting its national
headquarters.

(b) The United Nations peace-keeping operation shall enjoy, within the [host country/territory], the
right if unrestricted communications by radio, (including satellite, mobile, and hand-hold radio), telephone,
telegraph, facsimile or any other means, and of establishing the necessary facilities for maintaining such
communications within and between premises of the United Nations peace-keeping operations, including
the laying of cables and land lines and the establishment of fixed and mobile radio sending, receiving and
repeater stations. The frequencies on which any radio will understood that connections with the local
system of telegraphs, telex and the Government. It is further understood that the use of the local system
of telegraphs, telex, and telephones will be charged at the rate most favorable to the United Nations.

(c) The United Nations peace-keeping operation may make arrangements through its own facilities
for the processing and transport of private mail, including the transfer of currency and transport of
packages and parcels, addressed to or emanating from members of the United Nations peace-keeping
operation. The Government shall be informed of the nature of such arrangements and shall not interfere
with or apply censorship to the mail of the United Nations peace-keeping operation and shall be the right to
receive not only letters but also be entitled to receive and transfer currency from their respective national
governments via the mail or other means deemed appropriate by officials of the United Nations peace-
keeping operation.

(d) The Government shall exempt official and personnel mail addressed to or mailed from the
military post office of the United Nations peace-keeping operation from customs, duties, taxes, search
seizure, and inspection.

Travel and transport.

11. The United Nations peace-keeping operation and its members shall enjoy, together with its vehicles,
vessels, aircraft and equipment, freedom of movement throughout the [host country/territory]. That
freedom shall, with respect to large movements of personnel, stores or vehicles through airports or on
railways or roads used for general traffic within the territory of the Government, normally be notified to the
Government. The Government undertakes, without reimbursement, to supply the United Nations peace-
keeping operation, where necessary, with maps and other information, including locations of mine fields
and other dangers and impediments, which may be useful in facilitating its movements.

12. Vehicles, including all military vehicles, vessels, and aircraft of the United Nations peace-keeping
operation, shall not be subject to registration or licensing by the Government.

13. The United Nations peace-keeping operation may use roads, bridges, canals, and other waters, port
facilities, and airfields without the payment of dues, landing or other fees, tolls, including wharfage charges.
However, the United Nations peace-keeping operation will not claim exemption from charges which are in
fact charges for services requested and received.

Privileges and immunities of United Nations peace-keeping operations

14. United Nations peace-keeping operations enjoys the status, privileges and immunities of the United
Nations as provided for in the present Agreement of the Convention, if applicable. The provision of article
II of the Convention which applies to United Nations peace-keeping operation shall also apply to the
property, funds and assets of participating States used in [host country/territory] in connection with the
national contingents serving with the United Nations peace-keeping operation provided for in paragraph 4 of
the present Agreement. The Government recognizes the right of the United Nations peace-keeping
operation in particular.

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(a) To import, free of duty, taxes or other charges, inspections, or other restrictions, equipment,
provisions, supplies and other goods which are for the use of United Nations peace-keeping operation or
for resale in the commissaries provided for hereinafter.

(b) To establish, maintain and operate commissaries and retail sales outlets at its headquarters, camps
and posts for the benefit of the members of United Nations peace-keeping operation, but not of locally
recruited personnel. The Special Representative/Commander shall take all necessary measures to prevent
abuse of such commissaries and retail sales outlets and the sale or resale of such goods to persons other
than members of United Nations peace-keeping operation, and he shall give sympathetic consideration to
observations or requests of the Government concerning the operation of the commissaries;

(c) To clear ex customs and excise warehouse, free of duty, taxes or other charges, inspections, or other
restrictions, equipment, provisions, supplies and other goods which are for the use of United Nations
peace-keeping operation or for resale in the commissaries and retail sales outlets provided for above;

(d) To re-export or otherwise dispose of such equipment, as far as it is still usable, all unconsumed
provisions, supplies and other goods so imported or cleared ex customs and excise warehouse which are
not transferred, or otherwise disposed of.

To the end that such importation, clearances, transfer or exportation may be effected with the least
possible delay, a mutually satisfactory procedure, including documentation, shall be agreed between United
Nations peace-keeping operation and the Government at the earliest possible date.

V. FACILITIES FOR UNITED NATIONS PEACE-KEEPING OPERATION

Premises required for conducting the operational and administrative activities of United Nations peace-
keeping operation and for accommodating members of United Nations peace-keeping operation

15. The Government shall provide without cost to the United Nations peace-keeping operation and in
agreement with the Special Representative/Commander such areas for headquarters, camps, or other
premises as may be necessary for the conduct of the operational, logistical, administrative and other
activities of the United Nations peace-keeping operation and for the accommodation of the members of the
United Nations peace-keeping operation. Without prejudice to the fact that all such premises remain the
territory of [host country/territory], they shall be inviolable and subject to the exclusive control and authority
of the United Nations. Where United Nations troops are co-located with military personnel of the host
country, a permanent, direct and immediate access by United Nations peace-keeping operation to those
premises shall be guaranteed.

16. The Government undertakes to assist United Nations peace-keeping operation as far as possible in
obtaining and making available, where applicable, water, electricity and other facilities free of charge, or,
where this is not possible, at the most favorable rate available to the United Nations, and in the case of
interruption or threatened interruption of service, to give as far as is within its powers the same priority to
the needs of United Nations peace-keeping operation as to essential government services. Where such
utilities or facilities are not provided free of charge, payment shall be made by the United Nations peace-
keeping operation shall be responsible for the upkeep of facilities so provided.

17. The United Nations peace-keeping operation shall be the right where necessary, to generate, within its
premises, electricity for its use and to transmit and distribute such electricity.

18. The Special Representative/Commander alone may consent to the entry of any government officials or
of any other person not member of the United Nations peace-keeping operation to such premises.

Provisions, supplies, and services, and sanitary arrangements

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19. The Government undertakes to assist United Nations peace-keeping operation as far as possible in
obtaining equipment, provisions, supplies and other goods and services from local sources required for its
subsistence and operations. In making purchases on the local market, United Nations peace-keeping
operation shall make its best efforts, on the basis of observations made and information provided by the
Government in that respect, to avoid any adverse effect on the local economy. The Government shall
exempt United Nations peace-keeping operation from general sales taxes in respect of all official local
purchases.

20. The United Nations peace-keeping operation and the Government shall co-operate with respect to
sanitary services and shall extend to each other the fullest cooperation in matters concerning health,
particularly with respect to the control of communicable diseases, in accordance with international
conventions.

Recruitment and hiring of local personnel

21. The United Nations peace-keeping operation may recruit locally such personnel as it requires. Upon
the request of the Special Representative/Commander, the Government undertakes to facilitate the
recruitment and hiring of qualified local staff by the Untied Nations peace-keeping operation and to
accelerate the process of such recruitment.

Currency

22. The Government undertakes to make available to the United Nations peace-keeping operation, against
reimbursement in mutually acceptable currency, local currency required for the use of the United Nations
peace-keeping operation, including the pay of its members, at the rate of exchange most favorable to the
United Nations peace-keeping operation.

VI. STATUS OF THE MEMBERS OF THE UNITED NATIONS PEACE-KEEPING OPERATION.

23. The Special Representative, the Commander of the military component of the United Nations peace-
keeping operations, the head of the United Nations civilian police, and such high-ranking members of the
Special Representative/Commander's staff as may be agreed upon with the Government shall have the
status specified in sections 19 and 27 of the Convention, provided that the privileges and immunities therein
referred to shall be those accorded to diplomatic envoys by international law.

24. Members of the United Nations assigned to the civilian component to serve with the United Nations
peace-keeping operation remain officials of the United Nations entitled to the privileges and immunities of
article V and VII of the Convention.

25. Military observers, United Nation civilian police and civilian personnel other than United Nations officials
whose names are for the purpose notified to the Government by the Special Representative/Commander
shall be considered as experts on mission within the meaning of article VI of the Convention.

26. Personnel of national contingents assigned to the military component of the United Nations peace-
keeping operation shall have the privilege and immunities specifically provided for in section 18 (a), (b), (c)
of the Convention.

27. Unless otherwise specified in the present Agreement, locally recruited members of the United Nations
peace-keeping operation shall enjoy the immunities concerning official acts and exemptions from taxation
and national service obligations provided for in section 18 (a), (b), and (c) of the Convention.

28. Members of the United Nations peace-keeping operations shall be exempt from taxation on the pay
and emoluments received from the United Nations or from a participating State and any income received
from outside [host country/territory]. They shall also be exempt from all taxes, registration fees and
charges.

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29. Members of the United Nations peace-keeping operation shall have the right to import free of duty
their personal effects in connection with their arrival in [host country/territory]. Special facilities will be
granted by the United Nations peace-keeping operation. Special facilities will be granted by the
Government for the speedy processing of entry and exit formalities for all members of the United Nations
peace-keeping operation, including the military component, upon prior notification. On departure from [host
country/territory], members of the United Nations peace-keeping operation may, notwithstanding the
above-mentioned exchange regulations, take with them such funds as the Special
Representative/Commander certifies were received in pay and emoluments from the United Nations of
from a participating State. Special arrangements shall be made for the implementation of the present
provisions in the interest of the Government and the members of the United Nations peace-keeping
operation.

Entry, residence and departure

30. The Special Representative/Commander and members of the United Nations peace-keeping operation
shall, whenever so required have the right to enter into, reside in and depart from [host country/territory].

31. The Government of [host country/territory] undertakes to facilitate the entry into and departure from
[host country/territory] of the Special Representative/Commander and members of the United Nations
peace-keeping operation and shall be kept informed if such movement. For that purpose, the Special
representative/Commander and members of the United Nations peace-keeping operation and shall be
exempt from passport and visa regulations and immigration inspection and restrictions on entering into or
departing from [host country/territory]. They shall also be exempt from any regulations governing the
residence of aliens in [host country/territory], including registration but shall not be considered as acquiring
any right to permanent residence or domicile in [host country/territory].

32. For the purpose of such entry or departure, members of the United Nations peace-keeping operation
shall only be required to have (a) an individual or collective movement order issued by or under the
authority of the Special Representative/Commander or any appropriate authority of a participating State;
and (b) a personal identity card issued in accordance with paragraph 33 of the present Agreement, except
in the case of first entry, when the personal identity card issued by the appropriate authorities of a
participating State shall be accepted in lieu of the said identity card.

33. The Special Representative/Commander shall issue to each member of the United Nations peace-
keeping operation before or as soon as possible after such member's first entry into [host
country/territory], as well as to all locally recruited personnel, a numbered identity card, which shall show
full name, date of birth, title or rank, service (if appropriate) and photograph. Except as provided for in
paragraph 32 of the present Agreement, such identity card shall be the only document required of a
member of the United Nations peace-keeping operation.

34. Members of the United Nations peace-keeping operation as well as locally, recruited personnel shall
be required to present, but not to surrender, their [United Nations peace-keeping operation] identity cards
upon demand of an appropriate official of the Government.

Uniform and arms

35. Military members and the United Nations civilian police of the United Nations peace-keeping operation
shall wear, while performing official duties, the national military or police uniform of their respective States
with standard United Nations accouterments. United Nations Security Officers and Field Service Officers
may wear the United Nations uniform. The wearing of the civilian dress by the above-mentioned members
of the United Nations peace-keeping operation may be authorized at other times. Military members and
civilian police of the United Nations peace-keeping operation and United Nations Security Officers designed
by the Special Representative/Commander may possess and carry arms in accordance with their orders.

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Permits and license

36. The Government agrees to accept as valid, without tax or fee, a permit or license issued by the
Special Representative/Commander for the operation by any member of the United Nations peace-keeping
operation, including locally recruited personnel, of any transport or communication equipment and for the
practice of any profession or occupation in connection with the functioning of the United Nations peace-
keeping operation, provided that no license to drive a vehicle or pilot an aircraft shall be issued to any
person who is not already in possession of an appropriate and valid license.

37. Without prejudice to the provisions of paragraph 35, the Government further agrees to accept as valid,
without tax or fee, a permit or license issued by the Special Representative/Commander to a member of
the United Nations peace-keeping operation for the carrying of use of firearms or ammunition in connection
with the functioning of the United Nation peace-keeping operation.

Military police, arrest, and transfer of custody, and mutual assistance

38. The Special Representative shall take all appropriate measures to ensure the maintenance of
discipline and good order among members of the United Nations peace-keeping operation, as well as
locally recruited personnel. To this end, personnel designated by the Special Representative/Commander
shall police the premises of the United Nations peace-keeping operation such as areas where its members
are deployed. Elsewhere such personnel shall be employed only subject to arrangements with
Government and shall liaison with it in so far as such deployment is necessary to maintain discipline and
order among members of the United Nations peace-keeping operation.

39. The military police of the United Nations peace-keeping operation shall have the power to detain
members of the United Nations peace-keeping operation. Personnel detained shall be transferred to their
contingent Commander for appropriate action. The personnel mentioned in paragraph 38 above may
detain any other person on the premises of the United Nations peace-keeping operation. Such other
person shall be delivered immediately to the nearest appropriate official for the purpose of dealing with any
offense or disturbance on such premises.

40. Subject to the provisions of paragraph 23 and 25, officials of the Government may take into custody
any member of the United Nations peace-keeping operation:

(a) when so requested by the Special Representative/Commander; or

(b) when such member of the United Nations peace-keeping operation is discovered in the
commission or attempted commission of an offenses.

Such person shall be delivered immediately, together with any weapons or other item seized, to the
nearest appropriate representative of the United Nations peace-keeping operation, whereafter the
provisions of paragraph 45 shall apply mutatis mutandis.

41. When a person is detained under paragraph 39 or paragraph 40(b), the United Nations peace-keeping
operation or the Government as the case may be make a preliminary on-scene interrogation but may not
delay the transfer of custody.

42. The United Nations peace-keeping operation and the Government shall assist such other in carrying
out all necessary investigations into offenses in respect of which either or both have an interest, in the
production of witnesses and in the collection and production of evidence, including the seizure of and, if
appropriate, the handing over of items connected with an offense. The handling over of any such items
may be made subject to their return within the terms specified by the authority delivering them. Each shall
notify the other of the disposition of any case in the outcome of which the other may have an interest or in
which there has been a transfer of custody under the provisions of paragraph 39-41.

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43. The Government shall ensure the prosecution of persons subject to its criminal jurisdiction who are
accused of acts in relation to the United Nations peace-keeping operation or its members which, if
committed in relation to the forces of the Government, would have rendered such acts liable to
prosecution.

Jurisdiction

44. All members of the United Nations peace-keeping operation including locally recruited personnel shall
be immune from legal process in respect of words spoken or written and all acts performed by them in
their official capacity. Such United Nations peace-keeping operation and after the expiration of the other
provisions of the present Agreement.

45. Should the Government consider that any member of the United Nations peace-keeping operation has
committed a criminal offense, it shall promptly inform the Special Representative/Commander and present
to his any evidence available to it. Subject to the provisions of paragraph 23:

(a) If the accused person is a member of the civilian component or a civilian member of the
military component other than those support personnel under the command of their participating State, the
Special Representative/Commander shall conduct any necessary supplementary inquiry and after
consultation with the providing participating State, may agree with the Government whether or not criminal
proceeding should be instituted. Failing such agreement, the question shall be received as provided in
paragraph 51 of the present Agreement.

(b) Military members of the military component of the United Nations peace-keeping operation
shall be subject to the exclusive jurisdiction of their respective participating States in respect of any criminal
offenses which may be committed by them in [host country/territory].

46. The Secretary-General of the United Nations will obtain assurances from Governments of participating
States that they will not be prepared to exercise jurisdiction with respect to crimes or offenses which may
be committed by members of their national contingents serving with the peace-keeping operation.

47. If any civil proceeding is instituted against a member of the United Nations peace-keeping operation
before any court of [host country/territory], the Special/Representative/Commander shall be notified
immediately, and he shall certify to the court whether or not the proceeding is related to the official duties
of such member:

(a) If the Special Representative/Commander certifies that the proceeding is related to official
duties, such proceeding shall be discontinued and the provisions of paragraph 51 of the present Agreement
shall apply.

(b) If the Special Representative certifies that the proceeding is not related to the official duties,
the proceeding may continue. If the Special Representative/Commander certifies that a member of the
United Nations peace-keeping operation is unable because of official duties or authorized absence to
protect his interests in the proceeding, the court, shall at the defendant's request suspend the proceeding
until the elimination of the disability, but for not more than ninety days. Property of a member of the United
Nations peace-keeping operation shall be free from seizure for the satisfaction of a judgment, decisions or
order. The personal liberty of a member of the United Nations peace-keeping operation shall be free from
seizure for the satisfaction of a judgment, decisions, or order. The personal liberty of a member of the
United Nations peace-keeping operations shall not be restricted in a civil proceeding, whether to enforce a
judgment decision or order, to compel an oath for any other reason.

Deceased members

48. The participating State shall have the right to take charge of and dispose of the body of a member of
its contingent with the United Nations peace-keeping operation who dies in [host country/territory], as well

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as that member's personal property located within [host country/territory], in accordance with United
Nations procedures.

VII. SETTLEMENT OF DUTIES

49. Except as provided in paragraph 51, any dispute or claim of a private law character to which the
United Nations peace-keeping operation or any member thereof is a party and over which the courts of
[host country/territory] do not have jurisdiction because of any provision of the present Agreement, shall be
settled by a standing claims commission to be established for that purpose. One member of the
commission shall be appointed by the Secretary-General of the United Nations, one member by the
Government and a chairman jointly by the Secretary-General and the Government. If no agreement as to
the chairman is reached within thirty days of the appointment of the first member of the commission, the
President of the International Court of Justice may, at the request of either the Secretary-General of the
United Nations or the Government, appoint the chairman. Any vacancy on the commission shall be filled by
the same method prescribed shall start as soon as there is a vacancy in the chairmanship. The
commissions shall determine its own procedures, provided that any two members shall constitute a quorum
for all purposes (except for a period of thirty days after the creation of a vacancy) and all decisions shall
require the approval of any two members. The awards of the commission shall be final and binding, unless
the Secretary-General of the United Nations and the Government permit an appeal to a tribunal established
in accordance with paragraph 51. The awards of the United Nations peace-keeping operation, the Special
Representative/Commander or the Secretary-General of the United Nations shall use his best endeavors to
ensure compliance.

50. Disputes concerning the terms of employment and conditions of services of locally recruited personal
shall be settled by the administrative procedures to be established by the Special
Representative/Commander.

51. Any other dispute between the United Nations peace-keeping operation and the Government, and any
special that both of them agree to allow from the award of the claims commission established pursuant to
paragraph 49 shall, unless otherwise agreed by the parties, be submitted to tribunal of three arbitrators.
The provisions relating to the establishment and procedures of the claims commission shall supply, mutatis
mutandis, to the establishment and procedures of the tribunal. The decision of the tribunal shall be final
and binding on both parties.

52. If the Government is a Party to the Convention, all difference between the United Nations and the
Government of [host country/territory] arising our to of the interpretation or application of the present
arrangement which involve a question of principle concerning the Convention shall be dealt with in
accordance with the procedure of section 30 of the Convention.

VIII. SUPPLEMENTAL ARRANGEMENTS

53. The Special Representative/Commander and the Government may conclude supplemental
arrangements to the present Agreement.

IX. LIAISON

54. The Special Representative/Commander and the Government shall take appropriate measures to
ensure close and reciprocal liaison at every appropriate level.

X. MISCELLANEOUS PROVISIONS

55. Wherever the present Agreement refers to the privileges, immunities and rights of the United Nations
peace-keeping operation and to the facilities the [host country/territory] undertake to provide to the United
Nations peace-keeping operation, the Government shall have the ultimate responsibility for the
implementation and fulfillment of such privileges, immunities, rights and facilities by the appropriate local
[host country/territory] authorities.

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56. The present Agreement concluded for the sole purpose of assisting in the implementation of Security
Council/General Assembly resolution [number and date of resolution] and has no bearing upon the
respective positions of the parties concerning the status of [host country/territory].

57. The present Agreement shall enter into force on ___________.

58. The present Agreement shall remain in force until the departure of the final element of the United
Nations peace-keeping operation from [host country/territory] except that:

(a) The provisions of paragraph 44, 51, and 52, as applicable, shall remain in force.

(b) The provisions of paragraph 49 shall remain in force until all claims have been settled that
arose prior to the termination of the present Agreement and were submitted prior to or within three months
of such termination.

HAITI SOFA (EXCHANGE OF NOTES).

The Ministry of Foreign Affairs and Worship presents its compliment to the Embassy of the United States
of America in Haiti and with reference to the recent discussion between the representative of the two
governments regarding the status of the military personnel and civilian employees of the United States
Department of Defense, has the honor to propose the following:
1. Such personnel shall enjoy the same status as that provided to the administrative and technical
staff of the United States Embassy;
2. Such personnel may enter, leave, and circulate freely in Haiti with U.S. Government identification;
3. Such personnel shall be permitted to travel individually or in groups;
4. The vehicles used by such personnel may have special, easily identifiable license plates;
5. Military personnel shall be authorized to wear uniforms in the exercise of their official duties and to
carry weapons if authorized to do so by their commander;
6. The Government of Haiti shall grant them exemption from import and export duties on the goods,
property, material, and equipment imported to Haiti by the American Government and its civilian
contractors pursuant to their official duties;
7. The Government of Haiti shall grant them exemption from domestic taxes on the goods, property,
material, and equipment imported to or acquired in Haiti by the United States Government and its civilian
contractors pursuant to their official duties;
8. The Government of Haiti shall grant them exemption form domestic taxes such as airport, port, and
highway tools, fees, and charges in Haiti on aircraft, boats, and vehicles of the Government of the United
States of America;
9. The Government of Haiti and the Embassy of the United States shall exchange on regular, not
necessarily formal, basis information on all issues raised by the implementation of this agreement.

If these terms are accepted by the American Government, the Foreign Ministry proposes that this
note and the Embassy’s reply shall constitute an agreement on this subject between the two governments
that shall enter into force as of the date of said reply.
Port-au-Prince, May 10, 1995

Extract of Letter from the US Ambassador to the Haitian Ministry of Foreign Affairs,
May 11, 1995

The Embassy of the United States of America has the honor to inform the Ministry of Foreign Affairs of the
Republic of Haiti that the Government of the United States of America accepts the proposal contained in
that note and to confirm that this reply shall constitute an agreement between our two Governments on this
subjects effective from this date.

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 43
Appendix B to Annex 1-A to the Dayton Peace Accord of 21 November 1995
Agreement Between the Republic of Bosnia and Herzegovina and the North Atlantic Treaty
Organisation (NATO) Concerning the Status of NATO and its Personnel

The Republic of Bosnia and Herzegovina and the North Atlantic Treaty Organisation have agreed as
follows:

1. For the purposes of the present agreement, the following expressions shall have the meanings
hereunder assigned to them:
- ‘the Operation’ means the support, implementation, preparation and participation by NATO and
NATO personnel in a peace plan in Bosnia and Herzegovina or a possible withdrawal of U.N. Forces from
former Yugoslavia;
- ‘NATO personnel’ means the civilian and military personnel of the North Atlantic Treaty
Organisation with the exception of personnel locally hired;
- ‘NATO’ means the North Atlantic Treaty Organisation, its subsidiary bodies, its military
Headquarters and all its constituent national elements/units acting in support of, preparing and participating
in the Operation;
- ‘Facilities’ mean all premises and land required for conducting the operational, training and
administrative activities by NATO for the Operation as well as for accommodations of NATO personnel.

2. The provisions of the Convention on the Privileges and Immunities of the UN of 13 February 1946
concerning experts on mission shall apply mutatis mutandis to NATO personnel involved in the Operation,
except as otherwise provided for in the present agreement. Moreover NATO, its property and assets shall
enjoy the privileges and immunities specified in that convention and as stated in the present agreement.

3. All personnel enjoying privileges and immunities under this Agreement shall respect the laws of the
Republic of Bosnia and Herzegovina insofar as it is compatible with the entrusted task/mandate and shall
refrain from activities not compatible with the nature of the Operation.

4. The Government of the Republic of Bosnia and Herzegovina recognizes the need for expeditious
departure and entry procedures for NATO personnel. They shall be exempt from passport and visa
regulations and the registration requirements applicable to aliens. NATO personnel shall carry identification
which they may be requested to produce for the authorities of the Republic of Bosnia and Herzegovina but
operations, training and movement shall not be allowed to be impeded or delayed by such requests.

5. NATO military personnel shall normally wear uniforms, and NATO personnel may possess and carry
arms if authorized to do so by their orders. The authorities of the Republic of Bosnia and Herzegovina shall
accept as valid, without tax or fee, drivers’ licenses and permits issued to NATO personnel by their
respective national authorities.

6. NATO shall be permitted to display the NATO flag and/or national flags of its constituent national
elements/units on any NATO uniform, means of transport or facility.

7. NATO military personnel under all circumstances and at all times shall be subject to the exclusive
jurisdiction of their respective national elements in respect of any criminal or disciplinary offenses which
may be committed by them in the Republic of Bosnia and Herzegovina. NATO and the authorities of the
Republic of Bosnia and Herzegovina shall assist each other in the exercise of their respective jurisdictions.

8. As experts on mission, NATO personnel shall be immune from personal arrest or detention. NATO
personnel mistakenly arrested or detained shall immediately be turned over to NATO authorities.

43
This only one of three separate SOFAs contained in the Dayton Peace Accord. The other two are: (1) the agreement between the
Republic of Croatia and NATO and (2) the transit agreement with the Federal Republic of Yugoslavia and NATO. These SOFA
provisions, as well as the entire Dayton Peace Agreement, are reprinted in the 2 INTERNATIONAL PEACEKEEPING No.6 (Oct. - Nov.
1995), at 140 - 146., Vol. 2, No. 6 One can also find a copy on NATO’s internet home page: http://www.nato.int/

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9. NATO personnel shall enjoy, together with their vehicles, vessels, aircraft and equipment, free and
unrestricted passage and unimpeded access throughout the Republic of Bosnia and Herzegovina including
airspace and territorial waters of the Republic of Bosnia and Herzegovina. This shall include, but not be
limited to, the right of bivouac, maneuver, billet, and utilization of any areas or facilities as required for
support, training, and operations. NATO shall be exempt from providing inventories or other routine
customs documentation on personnel, vehicles, vessels, aircraft, equipment, supplies, and provisions
entering, exiting or transiting the territory of the Republic of Bosnia and Herzegovina in support of the
Operation. The authorities of the Republic of Bosnia and Herzegovina shall facilitate with all appropriate
means all movements of personnel vehicles, vessels, aircraft, equipment or supplies, through ports,
airports or roads used. Vehicles, vessels and aircraft used in support of the Operations shall not be
subject to licensing or registration requirements, nor commercial insurance. NATO will use airports, roads
and ports without payment of duties, dues, tolls or charges. However, NATO shall not claim exemption
from reasonably charges for services requested and received, but operations/movement and access shall
not be allowed to be impeded pending payment for such services.

10. NATO personnel shall be exempt from taxation by the Republic of Bosnia and Herzegovina on the
salaries and emoluments received from NATO and on any income received from outside the Republic of
Bosnia and Herzegovina.

11. NATO personnel and their tangible movable property imported into or acquired in the Republic of
Bosnia and Herzegovina shall also be exempt from all identifiable taxes by the Republic of Bosnia and
Herzegovina, except municipal rates for services enjoyed, and from all registration fees and related
charges.

12. NATO shall be allowed to import and to export free of duty or other restriction equipment, provisions,
and supplies, necessary for the Operation, provided such goods are for the official use of NATO or for sale
via commissaries or canteens provided for NATO personnel. Goods sold shall be solely for the use of
NATO personnel and not transferable to other parties.

13. It is recognized by the Government of the Republic of Bosnia and Herzegovina that the use of
communications channels shall be necessary for the Operation. NATO shall be allowed to operate its own
internal mail and telecommunications services, including broadcast services. This shall include the right to
utilize such means and services as required to assure full ability to communicate, and the right to use all of
the electro-magnetic spectrum for this purpose, free of cost. In implementing this right, NATO shall make
every reasonable effort to coordinate with and take into account the needs and requirements of
appropriate authorities of the Republic of Bosnia and Herzegovina.

14. The Government of the Republic of Bosnia and Herzegovina shall provide, free of cost, such facilities
NATO needs for the preparation for and execution of the Operation. The Government of the Republic of
Bosnia and Herzegovina shall assist NATO in obtaining, at the lowest rate, the necessary utilities such as
electricity, water and other resources necessary for the Operation.

15. Claims for damage or injury to Government personnel or property, or to private personnel or property
of the Republic of Bosnia and Herzegovina shall be submitted through governmental authorities of the
Republic of Bosnia and Herzegovina to the designated NATO Representative

16. NATO shall be allowed to contract direct with suppliers for services and supplies in the Republic of
Bosnia and Herzegovina without payment of tax or duties. Such services and supplies shall not be subject
to sales and other taxes. NATO may hire local personnel who shall remain subject to local laws and
regulations. However, local personnel hired by NATO 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 immune from national services and/or national military service obligations;
(c) be exempt from taxation on the salaries and emoluments paid to them by NATO.

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17. NATO may in the conduct of the Operation, have need to make improvements or modifications to
certain infrastructure of the Republic of Bosnia and Herzegovina such as roads, utility systems, bridges,
tunnels, buildings, etc. Any such improvements or modifications of a non-temporary nature shall become
part of and in the same ownership as that infrastructure. Temporary improvements or modifications may
be removed at the discretion of the NATO Commander, and the facility returned to as near its original
condition as possible.

18. Failing any prior settlement, disputes with regard to the interpretation or application of the present
agreement shall be settled between the Republic of Bosnia and Herzegovina and NATO Representatives
by diplomatic means.

19. The provisions of the agreement shall also apply to the civilian and military personnel, property and
assets of national elements/units of NATO states, acting in connection to the Operation or the relief for the
civilian population which however remain under national command and control.

20. Supplemental arrangements may be concluded to work out details for the Operation also taking into
account its further development.

21. The Government of the Republic of Bosnia and Herzegovina shall accord non-NATO states and their
personnel participating in the Operation the same privileges and immunities as those accorded under this
agreement to NATO states and personnel.

22. The provisions of this agreement shall remain in force until completion of the Operation or as the
Parties otherwise agree.

23. This Agreement shall enter into force upon signature.

3 - 29
 EXTRACT OF THE PFP SOFA

[The parties] have agreed as follows:

Article I: Except as otherwise provided for in the present agreement and any additional protocol in respect
to its own parties, all states parties to the present agreement shall apply the provisions of the agreement
between parties to the North Atlantic Treaty Regarding the Status of Their Forces, done at London on 19
June 1951, hereinafter referred to as the NATO SOFA, as if all State Parties to the present agreement
were parties to the NATO SOFA

Article II:
1) In addition to the area to which the NATO SOFA applies the present agreement shall
apply to the territory of all States parties to the present agreement which are not parties
to the NATO SOFA.

2) For the purposes of the present agreement, references in the NATO SOFA to the North
Atlantic Treaty area shall be deemed also to include the territories referred to in
paragraph 1 of the present article, and references to the North Atlantic Treaty shall be
deemed to include the Partnership for Peace.

Article III: For purposes of implementing the present agreement with respect to matters involving parties
that are not parties to the NATO SOFA, provisions of the NATO SOFA that provide for request to be
submitted, or differences to be referred to the North Atlantic Council, the Chairman of the North Atlantic
Council Deputies or an arbitrator shall be construed to required the Parties concerned to negotiate
between or among themselves without recourse to any outside jurisdiction.

Article IV: The present agreement may be supplemented or otherwise modified in accordance with
international law.

Extract of the Additional Protocol to the PFP SOFA: Each State Party to the Present Additional
Protocol shall not carry out a death sentence with regard to any member of a Force and its Civilian
Component, and their Dependents from any other State Party to the Present Additional Protocol.

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 IV. ACQUISITION AND CROSS-SERVICING AGREEMENTS

Acquisition and Cross-Servicing Agreements (10 U.S.C. §§ 2341-2350)

Background
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.

As originally enacted, the NMSA was limited in its application to NATO allies and NATO subsidiary
bodies and was geographically restricted to apply only to U.S. Forces stationed in Europe and adjacent
44
waters. Subsequent changes to the NMSA have expanded its application world-wide. Similarly,
amendments to this legislation have greatly expanded the list of eligible and designated countries to include
many non-NATO countries.

Acquisition and Cross-Servicing Agreement Authorities (ACSA)

45
A. Overview. ACSA authorities provide for the simplified acquisition and transfer of routine logistic
support, supplies, and services between the armed forces of the U.S. and the armed forces of the
governments of NATO countries, NATO subsidiary body organizations, and the armed forces of the
governments of other ACSA-eligible and designated countries. The ACSA legislation provides the following
three distinct, although not entirely separate, legal authorities: (1) acquisition only authority; (2) cross-
46
servicing authority (which includes the authority both to acquire and transfer); and (3) waiver authorities.

B. Acquisition-Only Authority (10 U.S.C. § 2341).

1. Generally. Subject to the availability of funds, acquisition-only authority enables DOD
components to enter into agreement for the acquisition of logistic support, supplies, and services as that
term is defined in 10 U.S.C. § 2350. This support may be acquired directly from qualified, eligible
Governments and international organizations. This authority is limited to acquisitions.

2. Applicability. Specifically authorized under this authority are the following:

44
See Fred Pribble, A Comprehensive Look at the North Atlantic Treaty Organization Mutual support Act of 1979, 135 MIL. L. REV.
187 (1989).

45
Transfer means selling, leasing, loaning, or otherwise temporarily providing logistic support, supplies, and services under the ACSA
terms. 10 U.S.C. 2350(4).

46
DEP’T OF DEF , DIRECTIVE 2010.9, MUTUAL LOGISTIC SUPPORT BETWEEN THE UNITED STATES AND GOVERNMENT OF ELIGIBLE
COUNTRIES AND NATO SUBSIDIARY BODIES, is the implementing directive for ACSAs.

3 - 31
 a. The acquisition of logistic support, supplies, or services from the governments of NATO
countries and from NATO subsidiary bodies for elements of the U.S. Armed Forces deployed outside the
United States. Section 1317(a) of the FY95 DOD Authorization Act, Pub. L. 103-337, expanded this
authority to include the United Nations Organizations or any regional international organization of which the
U.S. is a member.
b. The acquisition of logistic support, supplies, or services for elements of U.S. forces deployed
outside the U.S. from any government not a member of NATO if that country meets one or more of the
following eligibility criteria:
(i) Has a defense alliance with the United States;
(ii) Permits the stationing of members of the U.S. armed forces or the homeporting if U.S. naval
vessels in such country;
(iii) Has agreed to pre-position U.S. materiel in such country; or
(iv) Serves as the host country for U.S. armed forces during military exercises or permits other
U.S. military operations in such country.
3. Policies and Procedures.
a. When concluding agreements under this authority, DOD components are authorized by 10
47
U.S.C. § 2343 to waive eight provisions of law generally applicable to DOD procurements.
b. As authorized by 10 U.S.C. § 2344, acquisition only agreements may provide for liquidation
by cash payment (reimbursable transactions) or by replacement-in-kind or replacement of logistic support,
supplies, or services of equal value (nonreimbursable transactions).
c. Use of this authority does not require the existence of a cross-servicing agreement or
implementing arrangement as a prerequisite.

C. Cross-Servicing Authority (10 U.S.C. § 2342).

1. Generally. This provision authorizes the SECDEF, after consultation with the SECSTATE, to enter
into agreements with designated countries and international organizations that provide for the reciprocal
provision of logistic support, supplies, or services as that term is defined at 10 U.S.C. § 2350. Acquisitions
conducted using cross-servicing authority are subject to the availability of appropriations.
2. Applicability. Following consultation with the SECSTATE and a minimum 30-day notification to the
responsible Congressional committees, the SECDEF may designate countries not members of NATO as
authorized for cross-servicing agreements. Such designations for cross-servicing purposes must be in the
national security interests of the United States. Such prior designation and congressional notification,
however, is not required for cross-servicing agreements with NATO countries, NATO subsidiary bodies,
the United Nations Organization or any regional international organization of which the U.S. is a member.
3. Policies and Procedures.
a. When concluding cross-servicing agreements under this authority, DOD components are
authorized by 10 U.S.C. § 2343 to waive eight provisions of law generally applicable to DOD acquisitions.
b. Under cross-servicing authority, the acquisition and/or transfer of logistic support, supplies, or
services may be accomplished by implementing arrangements and/or other applicable order/receipt forms
as may be required by the terms of individual cross-servicing agreements.
c. Transfers under this authority may only take place under a cross-servicing agreement. DOD
policy is that transfers are designed to facilitate mutual logistic support between the U.S. and NATO
countries, NATO subsidiary bodies and designated non-NATO countries and are to be used primarily
during combined exercises; training; deployments; contingency operations; other cooperative efforts; and
for unforeseen circumstances or urgent situations when the recipient may have a temporary need for
logistic support, supplies, or services.
d. As authorized by 10 U.S.C. § 2344, cross-servicing agreements may provide for liquidation by
cash payment (i.e., reimbursable transactions) or by replacement-in-kind or exchange of logistic support,
supplies, or services of equal value (i.e., non-reimbursable transactions).
48
e. Cross-Servicing Agreements currently exist with at least the following countries:

47
See section D, infra.

48
DEFENSE INSTITUTE OF SECURITY ASSISTANCE MANAGEMENT, THE MANAGEMENT OF SECURITY ASSISTANCE 464 (Louis J.
Samelson ed., 16th ed., 1996) [hereinafter DISAM].
The Acting Deputy Assistant Secretary of Defense for International Programs granted the authority to negotiated ACSAs with
the following additional countries:

3 - 32
 Australia Israel Netherlands
Bahrain Italy Norway
Belgium Jordan (Acq. Only) Spain
Canada Korea Thailand
Denmark Luxembourg Tunisia
France Malaysia United Kingdom
49
Germany NAMSA
50
f. Authorized ACSA categories of logistic support, supplies, and services include:
51
Food Base Operations Support
Billeting Storage Services
52
Transportation Use of Facilities
Petroleum, Oils, and Lubricants Training Services
Clothing Spare Parts and Components
53
Communications Services Repair and Maintenance Services
Medical Services Port Services
Ammunition
54
g. Prohibited ACSA categories of logistics support, supplies, and services include:
Weapons systems Cartridge and propellant-actuated devices
Major items of equipment Chaff and chaff dispensers
Initial quantities of replacement parts Guidance kits for bombs or other ammunition
& spares
Naval mines and torpedoes Chemical ammunition (other than RCA)
Nuclear ammunition

D. Waiver Authorities (10 U.S.C. §§ 2343 and 2344).

1. In conducting acquisition of logistic support, supplies, and services under either acquisition only or
cross-servicing authority, DOD components are authorized to waive the eight provisions of law described

Albania Bangladesh Bulgaria

Cote D’Ivoire Czech Republic Estonia
Gabon Ghana India
Kyrgyzstan Latvia Lithuania
Macedonia Namibia Romania
Slovakia Slovenia Turkmenistan
Uganda Ukraine.

MEMORANDUM FOR DIRECTOR FOR LOGISTICS, JOINT STAFF, subj: Acquisition and Cross-Servicing Agreements: Authority to
Negotiate (6 Feb. 96).

49
NAMSA stands for NATO Maintenance and Supply Agency. See DISAM, at 465.

50
10 U.S.C. 2350.

51
This includes related construction.

52
Transportation includes airlift and the temporary use of general purpose vehicles and other items of military equipment not designated
as part of the U.S. Munitions List.

53
Includes calibration services.

54
DISAM, at 465.

3 - 33
 55
in 10 U.S.C. § 2343. The underlying rationale for this waiver authority is that commercial contracting
procedures are inapposite to acquisitions conducted at the government-to-government level.
Sovereignty considerations dictate that international agreements, not contracts should govern these
transactions.
2. 10 U.S.C. § 2344(b)(3) establishes a second waiver authority with respect to costs. In cases where
an agreement concluded under ACSA authorities provides for reciprocal pricing and to the extent that
application of these reciprocal pricing principles do not waive indirect costs, administrative surcharges, and
contract administration costs, DOD components may negotiate and conclude acquisition-only and cross-
servicing agreements that agree to waive such costs, on a reciprocal basis, in any such agreements.

E. Other Considerations. In addition to those three authorities, the ACSA legislation establishes
pricing and reimbursement procedures that govern the acquisition and transfer of goods and services. It
also establishes limits on DOD's exercise of these authorities such as a limited definition of logistic support
(that does not include equipment) and prescribed annual ceilings on reimbursable credits and liabilities that
may be accrued by U.S. forces.

56
SAMPLE ACQUISITION AND CROSS-SERVICING AGREEMENT

May 8, 1995
OUSD (A&T): DUTP&IP-CSP

ACQUISITION AND CROSS-SERVICING AGREEMENT

BETWEEN

THE DEPARTMENT OF DEFENSE

OF THE UNITED STATES OF AMERICA

AND

THE DEPARTMENT / MINISTRY OF DEFENSE

OF _________________________

Effective Date: _____________________

55
The eight provisions waived are 10 U.S.C. 2207, 2304(a), 2306(a)(b) & (e), 2306a, and 2313.

56
This is a copy of a sample ACSA fully coordinated within OSD. Memorandum, Acting Director, Cooperative Support Programs,
Office of the Assistant Secretary of Defense, DUTP&IP, to JS-J4/ILD, subject: Acquisition and Cross-Servicing Agreement (ACSA)
(May 8, 1995).

3 - 34
 ACQUISITION AND CROSS-SERVICING AGREEMENT
BETWEEN
THE DEPARTMENT OF DEFENSE
OF THE UNITED STATES OF AMERICA
AND
THE DEPARTMENT / MINISTRY OF DEFENSE
OF ____________________________

PREAMBLE

THIS AGREEMENT, by and between the UNITED STATES OF AMERICA (represented herein by the
United States Department of Defense) and the (hereinafter referred to as the parties);

WHEREAS this Agreement is executed under the authority of Title 10, United States Code, section
2341 et seq. (Acquisition and Cross-Servicing Agreements).

Now, THEREFORE, the Parties mutually agree as follows:

ARTICLE I
PURPOSE
This Agreement is entered into for the purpose of establishing basic terms, conditions, and procedures to
facilitate the reciprocal provision of logistic support, supplies, and services as that term is defined in Article
III of this Agreement.

ARTICLE II
APPLICABILITY
1. This Agreement is designed to facilitate reciprocal logistic support between the Parties to be used
primarily during combined exercises, training, deployments, operations, or other cooperative efforts, and
for unforeseen circumstances or exigencies in which the recipient may have a need of logistic support,
supplies and services.

2. This Agreement applies to the reciprocal provision of logistic support, supplies and services to the
military forces of one Party by the other Party in return for either cash payment or the reciprocal provision
of logistic, support, supplies and services to the military forces of the other Party.

3. It is understood between the parties that acquisitions and transfers under this Agreement and any
implementing arrangements executed hereunder are made subject to the availability of appropriations and
acquisition and transfer limitations established by United States law and regulations.

4. The parties agree that the following items are not eligible for transfer under this Agreement and are
specifically excluded from its coverage:

a. weapons systems;
b. major end items of equipment (except for the lease or loan of general purpose vehicles and other
items of nonlethal military equipment not designated as part of the United States Munitions List);
c. initial quantities of replacement and spare parts associated with the initial order quantity of major
items of organizational equipment covered in tables of allowances and distribution, tables of
organization and equipment, and equivalent documents.

5. Also excluded from transfer by either Party under this Agreement are any items the transfer of which
are prohibited by its laws or regulations. Specifically excluded from transfer by United States law and
regulation under this Agreement are the following:

a. guided missiles;
b. naval wines and torpedoes;

3 - 35
 c. nuclear ammunition and included items such as warheads, warhead sections, projectiles,
demolition munitions, and training ammunition;
d. cartridge and air crew escape propulsion system (AEPS) components;
e. chaff and chaff dispensers;
f. guidance kits for bombs or other ammunition;
g. chemical ammunition (other than riot control agents);
h. source, byproducts or special nuclear material or any other material, article, data or thing of value
the transfer of which is subject to the Atomic Energy Act of 1954 (title 42, United States Code,
section 2011, et seq.).

ARTICLE III
DEFINITIONS
1. As used in this Agreement and in any Implementing Arrangements which provide specific procedures,
the following definitions apply:

a. Logistic support, supplies and services. Food, water, billeting, transportation (including airlift),
petroleum, oils, lubricants, clothing, communication services, medical services, ammunition, base
operations support (and construction incident thereto), storage services, use of facilities training
services, spare parts and components, repair and maintenance services, calibration services, and
airport and seaport services. Such term also includes the temporary use of general purpose
vehicles and other items of military equipment not designated as part of the United states Munitions
List.

b. Implementing Arrangement. A written supplementary agreement related to the specific acquisition

and/or transfer of logistic support supplies and services, which sets forth additional details, terms
and conditions which further define and carry out this Agreement.

c. Order. An order, when in its proper form and signed by an authorized official (see Article IV,
paragraph 2 below), is a request for the provision of specific logistic support, supplies and services
pursuant to this Agreement and any applicable Implementing Arrangement.

d. Invoice. A document from the supplying Party which requests reimbursement or payment for
specific logistic support, supplies and services rendered pursuant to this Agreement and any
applicable Implementing Arrangements.

ARTICLE IV
TERMS AND CONDITIONS
1. Each Party shall make its best efforts, consistent with national priorities, to satisfy requests from the
other Party under this Agreement for logistic support supplies and services, during peacetime and during
periods of national emergency, international tension or active hostilities. When an implementing
arrangement contains a stricter standard for satisfying such requests, it shall apply over this paragraph.

2. The parties agree that the transfer of logistic support, supplies and services between the Parties shall
be accomplished by Orders issued and accepted under this Agreement and any applicable Implementing
Arrangement.

3. An Order may be issued against this Agreement alone without an Implementing Arrangement only in
those cases set forth in Annex A.

4. An Implementing Arrangement may be negotiated on the part of the United States by the
USCINC____ Component Commands or their designated Subordinate Commands when operations are
conducted within _________ Command (__COM) or with __COM units. When operations are conducted
outside __COM, Implementing Arrangements may be negotiated on the part of the United States by
authorized U.S. Headquarters in coordination with __COM. An Implementing Arrangement may be

3 - 36
negotiated on the part of the United States by either the Chief, ______ [insert name of appropriate U.S.
ODC, JUSMAG, etc.], or the individual US Military Services.

5. Whether the transfer is accomplished by an Order under this Agreement alone or in conjunction with
an Implementing Arrangement, the documents taken together must set forth all necessary details, terms,
and conditions to carry out the transfer including the data elements in Annex B.

6. The Parties shall endeavor to adopt a standard Order form. An Implementing Arrangement shall
generally identify those personnel authorized to issue and accept Orders under that agreement. The
Parties shall notify each other of specific authorizations or limitations on those personnel able to issue or
accept Orders directly under this agreement or under an Implementing Arrangement when the
Implementing Arrangement does not state this information. In the case of the United States, these
notifications shall go directly to the Component Command concerned. In the case of ______, these
notifications shall go to the individual Service concerned as well as to the ________________________.

7. In all transactions involving the transfer of logistic support, supplies and services , the receiving Party
agrees that such logistics support, supplies and services shall not be retransferred, either temporarily or
permanently, by any means or other than the forces of the receiving Party without prior written consent of
the supplying Party,

ARTICLE V
REIMBURSEMENT
1. For any logistic support, supplies and services transactions, the Parties shall negotiate for payment
either in cash in the currency specified by the supplying Party (A "reimbursable transaction") or in equal
value to be defined in monetary terms only (an "exchange transaction"). The receiving Party shall pay the
supplying Party under the conditions set out in either la or lb of this Article.

a. Reimbursable transaction. The supplying Party shall submit Invoices to the receiving after
delivery or performance of the logistic support, supplies and services. Both Parties shall maintain records
of all transactions, And each Party shall provide for the payment of outstanding accounts not less
frequently than every twelve months. Bills prepared by the supplying party shall be accompanied by
necessary support documentation and paid within 30 days from the date prepared. In pricing a
reimbursable transaction, the Parties agree to the following principles:

(1) In the case of specific acquisition by the supplying Party from its contractors for a
receiving Party, the price shall be no less favorable than the price charged the armed forces by the
contractor of the supplying Party for identical items or services, less any amounts excluded by Article VI of
this Agreement. The price charged may take into account differentials due to delivery schedules, points
of delivery, and other similar considerations.

(2) In the case of transfer front the supplying Party’s own resources, the supplying Party
shall charge the same price it charges its own forces for identical logistic support, supplies and services,
as of the date the Order is accepted, less any amounts excluded by Article VI of this Agreement. In any
case where a price has not been established or charges are not made for one’s own forces, the Parties
shall agree on a suitable price in advance, excluding charges that are precluded under these reciprocal
pricing principles.

b. Exchange transaction. Both Parties shall maintain records of all transactions. The receiving Party
shall pay by transferring to the supplying Party logistic support, supplies and services that are agreed
between the Parties to be of equal monetary value to the logistic support, supplies and services delivered
or performed by the supplying Party If the receiving Party does not complete the exchange within the terms
of a replacement schedule agreed to or in effect at the time of the original transaction, within time frames
which may not exceed one year from the date of the original transaction, the transaction shall

3 - 37
be deemed reimbursable and governed by paragraph la above except that the price shall be established
using actual or estimated prices in effect on the date payment would otherwise have been due.

2. When a definitive price for the Order is not agreed upon in advance, the Orders pending agreement on
final price, shall set forth a maximum limitation of liability for the Party ordering the logistic support,
supplies and services. The Parties shall then promptly enter into negotiation to establish the final price.

3. The Invoice shall contain an identification of the applicable Implementing Arrangement or in the absence
thereof, refer to this Agreement and shall be in the format set forth by the supplying organization. The
Invoice shall be accompanied by evidence of receipt by the Party receiving the logistic support, supplies
and services.

4. The Parties agree to grant each other access to documentation and information sufficient to verify,
when applicable, the reciprocal pricing principles have been followed and prices do not include waived or
excluded costs. Points of contact will be identified on each Implementing Arrangement to validate
expenses or research charges on an as-required basis.

5. No provision in this Agreement shall serve as a basis for an increased charge for logistic support,
supplies and services, if such logistic support, supplies and services would be available without charge or
for a lesser charge under the terms of another agreement.

ARTICLE VI
WAIVED OR EXCLUDED COSTS
The provisions of any tax and customs relief agreements applicable to the acquisition of materials,
services, supplies and equipment by the receiving Party shall apply to logistic support, supplies and
services transferred under this Agreement. The Parties shall cooperate to provide proper documentation
to maximize tax relief. In the case where taxes or customs duties for which a receiving Party would
ordinarily have an exemption have already been paid by the supplying Party and cannot be recovered, the
supplying Party shall advise the receiving Party prior to agreeing to the transaction. In such a case the
receiving Party may, if practicable, replace the supplies as an exchange transaction in lieu of
reimbursement for the supplies. If exchange is not practicable, the price paid by the receiving Party shall
include only those taxes or customs duties not recoverable by the supplying Party.

ARTICLE VII
INTERPRETATION AND REVISION
1. Each Party agrees to resolve disagreement between the parties with respect to the interpretation or
application of this Agreement. In the case of an Implementing Arrangement or transaction, the Parties
shall resolve any disagreements with respect to interpretation or application of the arrangement or
transaction. Any disagreements regarding the interpretation or application of this Agreement or any
implementing arrangements executed hereunder shall be resolved through consultation between the
parties and shall not be referred to any international tribunal or third party for settlement.

2. Either Party may, at any time, request revision of this Agreement by giving the other Party 90 days'
advance written notice. In the event such a request is made, the two Parties shall promptly enter into
negotiations. This Agreement may only be amended by written agreement between the Parties.

3. Classified information and material provided or generated pursuant to this Agreement shall be
protected in compliance-with the General Security of Military Information Agreement, [full title and
date of the agreement].

3 - 38
 ARTICLE VIII
EFFECTIVE DATE AND TERMINATION
This Agreement, which consists of a preamble, Articles I-VIII, and Annexes A and B, shall become
effective on the date of the last signature and shall remain in force for a period of ten years unless
terminated by either Party giving not less than 180 days' notice in writing to the other party.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective governments hate
signed this agreement.

DONE, in duplicate, in the English language.

FOR THE DEPARTMENT OF DEFENSE FOR THE DEPARTMENT / MINISTRY

OF THE UNITED STATES OF DEFENSE OF __________________

__________________________________ __________________________________
Signature Signature

__________________________________ __________________________________
Name Name

__________________________________ __________________________________
Title Title

__________________________________ __________________________________
Date Date

__________________________________ __________________________________
Location Location

If the agreement is signed jointly on the same date and location, use the following signature block:

IN WITNESS WHEREOF: the undersigned, being duly authorized by their governments, have signed this
agreement.

Done, in duplicate, in the English language, at _________________ this ________ day

of______________, 19 ____.

FOR THE DEPARTMENT OF DEFENSE FOR THE DEPARTMENT / MINISTRY

OF THE UNITED STATES OF DEFENSE OF __________________

__________________________________ _________________________________
Signature Signature

__________________________________ _________________________________
Name Name

__________________________________ _________________________________
Title Title

3 - 39
ANNEX A
Pursuant to Article IV, paragraph 3, Orders or support requests may be issued against this Agreement
alone in the following circumstances:

a. Orders for logistic support, supplies and services placed during times of active hostilities; and,
b. Orders for logistic support, supplies and sources urgently required and not covered by an
Implementing Arrangement, provided the Parties to the transaction (or their designated
representatives ) agree.

ANNEX B
MINIMUM ESSENTIAL DATA ELEMENTS
(1) Implementing Arrangements or support Agreement if no Implementing Arrangement
(2) Date of Order
(3) Designation and address of office to be billed
(4) Numerical listing of stock numbers of items, if any
(5) Quantity and description of material/services requested
(6) Quantity furnished
(7) Unit of measurement
(8) Unit price in currency of billing country
(9) Quantity furnished (6) multiplied by unit price (8)
(10) Currency of billing country
(11) Total Order amount exported in currency of billing country
(12) Name (typed or printed), signature, and title of authorized Ordering or requisitioning representative
(13) Payee to be designated on remittance
(14) Designation and address of office to receive remittance
(15) Recipient's signature acknowledging service or supplies received on the Order or requisition or a
separate supplementary document
(16) Document number of order or requisition
(17) Receiving organization
(18) Issuing organization
(19) Transaction type
(20) Fund citation or certification of availability of funds when applicable under Parties procedures
(21) Date and place of original transfer; in the case of an exchange transaction, a replacement schedule
including time and place of replacement transfer
(22) Name, signature and title of authorized acceptance official
(23) Additional special requirements, if any, such as transportation, packaging, etc.
(24) Limitation of government liability
(25) Name, signature, date and title of supplying Party official who actually issues supplies or services.

3 - 40
JA DATE

MEMORANDUM OF LAW IN SUPPORT OF AN INTERNATIONAL AGREEMENT

SUBJECT: Proposed Acquisition and Cross-Servicing Agreement between the United States and Orange

1. PURPOSE: The purpose of this agreement is to permit the acquisition and mutual provision of logistic
support, supplies and services, on the basis of cash reimbursement, replacement-in-kind or exchange of
supplies and services of equal value, between the armed forces of the United States of America and of the
State of Orange. It authorizes, but does not require, mutual logistic support under certain circumstances
and establishes terms, conditions and procedures for acquisitions and cross-servicing. It is intended to be
used primarily during combined exercises, training, deployments, operations or other cooperative efforts,
and for unforeseen circumstance and exigencies when the need arises for temporary logistic support. It is
not intended to be used to satisfy the routine supply requirements of the armed forces of designated
countries or of the United States.

2. EXECUTIVE AGREEMENT: As discussed in paragraph 3, infra, this agreement could be made solely
under and in accordance with the powers of the President of the United States under Article II of the United
States Constitution. In addition, it is supportable by existing legislation. Accordingly, and in the absence of
a security commitment that would require the advice and consent of the Senate to a treaty under Article I,
section 2, of the Constitution, its purposes are properly the subject of an executive agreement.

3. LEGAL AUTHORITY:

a. International authority for this agreement is found in the recognized principle of customary
international law that sovereign states have the capacity to and are entitled to enter into agreements with
each other.

b. Constitutional authority for this agreement is found in the President's executive powers under
Article II, section 1; his foreign relations powers under Article II, sections 1 and 2 combined; his authority
as Commander-in-Chief of the Armed Forces of the United States under Article II, section 2; and his
responsibility under Article II, section 3, to take care that the laws be faithfully executed.

c. The Congress of the United States has enacted specific statutory authorization for acquisition
and cross-servicing agreements in Subchapter I of Chapter 138 of Title 10, United States Code (10 U.S.C.
secs. 2341 et seq), popularly known as the North Atlantic Treaty Organization (NATO) Mutual Support Act,
as amended. In addition, this cross-servicing agreement would implement and advance the goals and
objectives of the Agreement on Defense Cooperation between the Government of the United States of
America and the Government of the State of Orange concluded on October 27, 1996.

d. Section 2342 of Title 10, United States Code, authorizes cross-servicing agreements with the
governments of designated countries that are not members of the North Atlantic Treaty Organization. The
Secretary of Defense is authorized, after consultation with the Secretary of State and determining that it is
in the best interests of the national security of the United States, to designate countries with which the
United States may enter into cross-servicing agreements. He is then required to provide notification of that
designation to the Committees on Armed Services and Foreign Relations of the Senate and Armed
Services and Foreign Affairs of the House of Representatives. By memorandum of 26 March 1987, the
authority of the Secretary of Defense was delegated to the Chairman of the Joint Chiefs of Staff, who by
memorandum CM-789-87 of 22 June 1987, redelegated it to the Commander-in-Chief, United States XXX
Command (USCINCXXX). By memorandum of 14 December 1987 USCINCXXX designated Orange as
country with which the United States may enter into a cross-servicing agreement.

4. AUTHORITY TO NEGOTIATE AND CONCLUDE: Paragraph 6.a of Department of Defense Directive

2010.9 of 30 September 1988 provides that the Unified Combatant Commands shall "[n]egotiate cross-
servicing agreements as an Executive Agent when authorized by CJCS." In his memorandum CM-789-87

3 - 41
of 22 June 1987 the Chairman of the Joint Chiefs of Staff delegated to USCINCXXX authority to negotiate
(but not conclude) cross-servicing agreements. After negotiation but prior to signing, the agreed-upon text
should be submitted to the Joint Staff with a request for authority to conclude the negotiated agreement.
In the alternative, the draft agreement may be submitted to the Joint Staff for coordination with a
concurrent request for authority to negotiate and conclude, provided negotiations does not result in any
deviation from the approved text. After conclusion, it should be reported to the Congress, through the
Secretaries of Defense and State, in accordance with the Case Act, 1 U.S.C. ∋ 112b.

5. CONCLUSION: For the foregoing reasons, the proposed acquisition and cross-servicing agreement
between the United States and Orange is legally unobjectionable.

XXXXXXX
Colonel, JA
Staff Judge Advocate

3 - 42
 CHAPTER 4
LEGAL BASES FOR MILITARY OPERATIONS

INTRODUCTION

There are a variety of internationally recognized legal bases for use of force abroad, 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)
1
or self-defense pursuant to Article 51 (which sanctions acts of both individual and collective self-defense).

Policy and Legal Considerations

Before the use of US military force abroad, US decision makers must make a number of
fundamental policy determinations. In considering whether to pursue force options, 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 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
2
JAs understand the basic concepts involved in the determination to use US military force. As a result of
the decision-making process, the combatant Commander will very likely be given a broad mission
statement, identifying the purpose of an operation. Using this mission statement, the JA must become
familiar with the legal justification for the mission and, in coordination with higher headquarters, be
prepared to brief all local commanders as to the rationale. 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 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 JA 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 US forces. A clear, well-conceived, effective, and timely articulation of the legal basis for a
particular use of force 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
and requires that they refrain in their international relations from the threat or use of force. An integral
aspect of this prohibition against the use of force in the international community is the principle of
nonintervention - the idea 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 another’s
sovereignty. American policy statements have frequently affirmed this principle and it has been made an
1
Other bases have been cited, and one, humanitarian intervention (action taken to stop or prevent an extensive threat to fundamental
human rights that shocks the conscience of mankind, usually the threat is by a government against its own citizens), is growing in stature.
US and allied assistance to the Kurds in northern Iraq following the Gulf War has been based on humanitarian concerns (although a UN
Security Council Resolution was cited as the basis). Ironically, this basis has been scorned by some Third World countries (at least by
their leaders) as being a subterfuge for intervention in their domestic affairs.

2
In 1989, the 7th Infantry Division (Light) Division Readiness Force brigade commander deployed for operation "Nimrod Dancer" in
Panama and was engulfed by the international press as soon as he landed. One of their questions was under what authority was he
acting. Though he had not previously sought specific JAG guidance, he strongly recommended that all subsequent deploying
commanders receive legal briefings prior to deployment.

4-1
integral part of US law through the ratification of the Charters of the UN and the Organization of American
States (OAS), as well as other multilateral international agreements which specifically incorporate
3
nonintervention as a basis for mutual-cooperation.

THE LAWFUL USE OF FORCE

Despite the UN Charter’s broad legal prohibitions against the use of force and other forms of
intervention, specific exceptions exist that justify a State's recourse to the use of force and, in certain
instances, armed intervention in another State. 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) Use of force as part of a Security Council action
sanctioned under Chapter VII of the UN Charter, and (2) as a legitimate act of individual or collective
self-defense pursuant to Art. 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.
Where the Security Council determines that a threat to international peace exists, Art. 41 of the Charter
contemplates the use of measures short of force to compel compliance with its decisions, including a wide
variety of diplomatic and economic sanctions against the delinquent state. Art. 42 further authorizes the
use of force by Members of the United Nations when measures implemented under Art. 41 have proven
inadequate to address the situation. For example, 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 resolutions was passed in response to the Iraqi invasion of
Kuwait and pursuant to the Security Council's 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: "Acting under Chapter VII of the Charter of the United Nations,
authorizes 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 . . . ."

3
The UN Charter is reprinted in full at Appendix I. Applicable language is quoted below:
UN Charter, art. 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." Having made this positive pronouncement, Article 2(4) then states:
"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 . . . ."
UN Charter, Article 2(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 . . . ."
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."

4-2
 -- Security Council Resolution 1031 “. . . Acting under Chapter VII . . . Authorizes 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 [again 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 allows for the creation of "regional organizations" or agencies to
deal with such matters relating to the maintenance of international peace and security as are appropriate
for regional actions (see Article 52). Regional organizations are required to encourage peaceful settlement
of international disputes and must prohibit the aggressive use or threat of force in international relations.
Additionally, Article 53 of the UN Charter requires that enforcement actions be carried out only after
affirmation and authorization by the UN Security Council, the principles of the Charter. It is important to
note that the Charter subordinates regional organizations to the UN and authorizes the Security Council to
use regional organizations for enforcement actions under its own authority.

SELF-DEFENSE

The inherent right of all nations to defend themselves was well established in customary
international law prior to adoption the San Francisco Convention of 1945 and was specifically codified at
Art. 51 of the Charter:

"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
4
and security. . . ."

The question which inevitably arises in conjunction with the "codified" right of self-defense is the
scope of authority found therein. Does this right, as is suggested by the language of Art. 51, exist only
when a State is responding to an actual "armed attack” and then only until the Security Council takes
formal 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 State’s 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 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 Art. 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 US - argue that an expansive interpretation of the
Charter is more appropriate, contending that the customary 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
4
UN Charter, art. 51. This general proscription on use of force is repeated in other multinational pacts to which the U.S. is party:

(1) OAS Charter, art. 21 "The American States bind themselves in their international relations not to have recourse to the use
of force, except in the case of self defense. . . . "

(2) Inter-American Treaty of Reciprocal Assistance (Rio Treaty), art. 3(1). "Parties agree that an armed attack by any State
against an American State shall be considered as an attack against all the American States and, consequently, each one of the said . . .
Parties undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self-defense recognized
by Art. 51 of the Charter of the UN.

4-3
effectively with acts and threats of aggression, these States argue that rather than artificially limiting a
State’s 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 nation's political independence, and 3) protection of a nation's
territorial integrity. The JA 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 JCS Standing
ROE and the response to state-sponsored terrorism.

Protection of Nationals

A State has customarily 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. The 1965 US intervention in the
Dominican Republic illustrates this concept of intervention. During the course of an insurgency, Dominican
authorities stated that they could no longer control the situation, that American and foreign lives were in
danger, and that assistance was required. In response to an urgent appeal from the US ambassador, 400
US Marines were put ashore, in the words of President Johnson, ". . . to give protection to hundreds of
Americans who are still in the Dominican Republic and to escort them safely back to this country." [Note:
Although the initial actions of the US were generally considered justified as a matter of urgent necessity to
protect the lives of US citizens, the US was later severely criticized for leaving its troops in the Dominican
Republic long after any necessity existed for the protection of its nationals.]

The protection of US nationals was cited also as one of the legal bases justifying initial US military
intervention in both Grenada and Panama. In each case, however, the US emphasized that protection of
US nationals, standing alone, did not necessarily provide the legal basis for the full range of US 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
US military presence in another country after the mission of safeguarding US 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 State's citizens (e.g., the government of
Iran's participation in the hostage taking of US embassy personnel in that country - 1979-80; and Ugandan
president Idi Amin's support of terrorists who kidnapped Israeli nationals and held them at the airport in
Entebbe).

Protection of Political Independence

A nation's 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 - an
customary international law -each State has the duty to respect the political independence of every other

4-4
State. Accordingly, force may be used to protect a State's political independence when it is threatened
and all other avenues of peaceful redress have been exhausted.

Protection of Territorial Integrity

Nations possess an inherent right to protect their national borders, airspace, and territorial seas.
No nation has the right to violate another nation's territorial integrity, and force may be used to preserve
that integrity where all lesser means have failed.

Collective Self-Defense

The UN Charter in general, and Art. 51 in particular, adopt the customary right of collective self-
defense - i.e., circumstances under which a aggrieved State declares itself a victim and specifically
requests assistance from another State. It is clear that to constitute a legitimate act of collective self-
defense, all conditions for the exercise of an individual State’s 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 group’s right to self-determination and
no request by the de jure government for assistant.

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 US
(ANZUS); and other similar agreements between the US and Korea, Japan, the Philippines, and Panama
do not provide an international legal basis for the use of US force abroad, per se. These agreements
simply establish a commitment among the parties to engage in "collective self-defense," in specified
situations, and establish 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 US 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 US 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.

Note: Although the US has undertaken international commitment to use force abroad in collective and
bilateral agreements, such uses of force are still subject to applicable domestic law, specifically, the
Constitutional and statutory delegation of the War Powers.

Anticipatory Self-Defense Under Customary Law

As discussed above, many nations embrace an interpretation of the UN Charter that extends
beyond the black letter language of Article 51, extending to the concept of “anticipatory self-defense.”
Under customary international law, States are authorized to use force to repel not just actual armed
attacks, but also "imminent" armed attacks. Under this concept, a State was not required to absorb the
proverbial "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
US 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 bound the actions
of the offended state.

4-5
 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 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 US in particular - in actions such as ELDORADO CANYON (the 1986 strike against Libya) and the
1993 missile attack against Iraqi Intelligence Headquarters - has increasingly employed anticipatory self-
defense as the underlying rationale for use of force in response to actual or attempted acts of violence
against US citizens and interests.

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

the JCS Standing ROE and is 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 US 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 USC 1541-1548.

The Constitution divides the power to wage war between the Executive and Legislative branches
of government. Under Art. I, the power to declare war and 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, Art. 2 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 a "zone of twilight" 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 US foreign policy. In 1973, Congress attempted to delineate its status
as a “full partner” in decisions relating to use of US forces overseas and map this twilight zone by passing,
over presidential veto, the War Powers Resolution.

The stated purpose of the WPR is to ensure the “collective judgement” of both branches in order
to commit to the deployment of US 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 seventy-two 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 issue of such a report - or a demand by Congress 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 require or for an indeterminate period if Congress has been unable to
meet due to an attack upon the United States.

4-6
 Though the applicability of the WPR to specific operations will not be made at the Corps or
Division level, once US forces are committed overseas, the deploying JA 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 WPR’s 60 day clock).

Procedures have been established which provide for JCS review of all force deployment actions
which may implicate the WPR. The Chairman's Legal Advisor, upon reviewing a proposed force
deployment, is required to provide his legal analysis of WPR application to the DOD General Counsel. If
the DOD General Counsel makes a determination that the situation merits further inter-agency discussion,
he 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 mandated by the WPR., whether he must consult or report.

4-7
 CHAPTER 5
ENVIRONMENTAL LAW IN OPERATIONS

The JA must advise commanders and train soldiers regarding environmental law issues in overseas
military operations. First, JAs must recognize environmental law issues that other officers and officials
may not have considered. Second, JAs must know where to go to find answers relative to the
environmental law issues that have been considered. Third, JAs must provide advice and training relative
to the four separate bodies of environmental law. Moreover, this advice and training must be provided
along the entire operational spectrum.

Protecting the environment has become steadily more important during the past several decades. The
international community is increasingly vigilant in its oversight of the environmental consequences of military
operations. JAs must ensure that leaders are both cognizant of the rules and the importance of complying
with these rules. Failure to comply with environmental law can jeopardize current and future operations,
generate domestic and international criticism, produce costly litigation, and even result in personal liability
of both the leader and the individual soldier.

Four Sources of Law

1. Environmental Domestic Law.

Statutes. Domestic law generally has no extraterritorial application during overseas operations. For
1
instance, the Endangered Species Act (ESA), 16 USC '' 1531-1543 (1973) and the National Environmental
2
Policy Act (NEPA) 42 USC '' 4321-4370a (1969) are not generally considered to have extraterritorial
3
application. 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, generates
NEPA application. JAs must understand why domestic statutes such as NEPA do not apply to overseas
operations. This understanding is imperative because lack of standing and nonextraterritoriality may not
4
prevent allegations of NEPA violations by various groups or members of the media. The JA must be
ready to accurately advise his commanders as to the true status of the law and how to proceed.

1
The one case where the ESA was found to have extraterritorial application was reversed on appeal, by the U.S. Supreme Court. The
reversal, however, was not based upon any of the substantive issues alleged, but on lack of standing by the plaintiffs. Defenders of
Wildlife, Friends of Animals v. Lujan, 112 S. Ct. 2130 (1992). Most scholars insist that the result would have been the same had the
Court considered the extraterritoriality question.

2
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.

3
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 (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.

4
JAs should remain cognizant of the Massey judgement (which the Clinton Administration chose not to appeal) when involved in any
overseas operation that tends to satisfy the two justifications that the court cited in finding that NEPA applied extraterritorially. For
example, in Operation Provide Comfort, there is no clear government (no sovereignty) and much of the DoD agency decision-making
took place within the U.S.

5-1
 Although the strict requirements of domestic law do not apply to most overseas operations, U.S. policy
5
is to adhere to "U.S. environmental requirements, if feasible." Because of this general policy, during
Operations Desert Shield/Storm many JAs became confused as to the need for an "emergency waiver." In
fact, several of the Desert Storm Assessment Team Report (DSAT) presumptions are inaccurate because
6
of confusion relative to the need to apply NEPA to our activity in Southwest Asia. In reality, no such
waiver was needed.
7
Executive Order No.(EO) 12,114. EO 12,114 does create "NEPA like" rules for overseas operations. EO
12,114, however, only applies to major federal actions which have significant effects on the environment
outside the U.S. "Major actions" are those activities that (1) involve substantial expenditures of time,
money, and resources, (2) affect the environment on a large geographic scale (or have substantial or
concentrated environmental effects on a more limited area), and (3) are significantly different from other
actions previously analyzed with respect to the environment. In other words, it does not apply to routine
8
deployments of units, ships, aircraft, or mobile military equipment. The Order requires analysis and
documentation of major Department of Defense actions that significantly affect the environment of either 1)
global commons (e.g., oceans or Antarctica), 2) a foreign nation not participating with the United States in
9
the action, 3) a foreign nation which receives from the United States (during the action) a product which is
prohibited or strictly regulated by federal law, or 4) any area outside the United States with natural or
10
ecological resources of global importance. These four types of actions are referred to as environmental
events.

If any one of the four environmental events occurs, then the Department of Defense must conduct a
documented review of the major action that it contemplates, unless an exemption applies. The list of
exemptions is reprinted below:

(1) actions that DoD determines do not do significant harm to the environment outside the U.S.;
(2) actions taken by the President or members of his cabinet;
(3) DoD action taken pursuant to the direction of the President (or cabinet member) during an armed conflict;

5
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 JAs 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. 12114. Every SINGLE U.S. activity within Southwest Asia (taken pursuant to
Operations Desert Shield/Storm) was exempted under Executive Order No. 12114 (see discussion later in this chapter for an
explanation of exempted status under EO 12,114).

6
See id. at Environmental Law 1-3.

7
Exec. Order No. 12114, 44 Fed. Reg. 1957 (1979) reprinted at 42 USC ' 4321, at 515 (1982) [hereinafter EO 12114]. Portions of EO
12114 are reprinted and discussed in Appendixes G and H, Army Regulation 200-2, infra, note 11.

8
Dep't of Defense, Overseas Environmental Baseline Guidance Document, 17-2, para. 9 (October 1992).

9
The definition of a participating nation is broad and this status has been attributed to nations in a number of important operations to
avoid the more demanding requirements of the Order. See Message, Commander in Chief, United States Atlantic Command
(CINCUSACOM) to Department of Defense Joint Staff, Logistics Directorate (J4), subject: Applicability of Executive Order 12114 on
Operation Uphold Democracy (23 Nov 94) [hereinafter Haiti Message] (“USACOM is not required under [EO 12114 and DOD Dir.
5060.7] to either invoke an exemption or complete an environmental study/review for Operation Uphold Democracy. However, to
promote environmental stewardship in the spirit of [EO 12,114], an environmental review will be conducted”). See also Email Message,
Robert E. Dunn, Attorney Advisor, International and Operations Law Division, Office of the Judge Advocate, United States Army Europe
and Seventh Army, to Major Rich Whitaker, Professor, International and Operational Law Department, The Judge Advocate General’s
School, subject: Environmental Law in Bosnia (28 Mar 97) [hereinafter Dunn Message] (Mr. Dunn explained that during the planning
phase for Operation Joint Endeavor both his office and the Office of the Legal Advisor to USEUCOM shared the opinion that Bosnia and
other “former warring faction” nations were “participating nations” under the provisions of EO 12,114 and that there was no need to go
through all the EO 12,114 exemption “hoops.” Instead, lawyers supporting Operations Joint Endeavor and Joint Guard have been
executing the general environmental steward mandate by referring to the Germany Overseas Baseline Guidance Document as a guide
in Bosnia, “to the extent that doing so does not unacceptably interfere with operations, especially force protection”).
10
The Order explains that a major federal action outside “the United States, its territories and possessions which significantly affect
natural or ecological resources of global importance” refers to resources either designated by the President or by international
agreement as having global importance. See EO 12,114, supra note 7, at ∋ 2, para. 2-3.

5-2
 (4) actions taken pursuant to the direction of the President (or cabinet member) when national
security or interests is involved;
(5) activities of the Defense intelligence components (DIA, NSA, etc.);
(6) actions with respect to arms transfers to foreign nations;
(7) actions taken with respect to membership in international organizations;
(8) disaster and emergency relief actions; and
(9) the Secretary of Defense has the authority to approve additional exemptions.

EO 12114 is not subject to judicial review and cannot be the basis of a cause of action for any sort of
litigation. If one or more of the exemptions apply, no environmental analysis or documentation is
11
required. With regard to any additional exemption that DoD decides to create (under exemption 9 listed
12
above), it must first consult with the Department of State. The most significant and frequently relied upon
exemption relates to “actions taken by or pursuant to the direction of the President or Cabinet officer when
13
the national security or interest is involved or when the action occurs in the course of an armed conflict.”

In most cases military lawyers should think of the foregoing analysis in the following way: where the host
nation is not a participating nation and where none of the exemptions apply then Executive Order 12,114
requires that military leaders conduct one of several different types of documented reviews. The type of
review is based upon which one of the four environmental events occurs. For example, if the event occurs
within a global common, the agency must prepare an environmental impact statement. If the event occurs
in a foreign nation, the agency must prepare either a “bilateral or multilateral environmental study or a
concise environmental review of the specific issues involved” (which would include an environmental
14
assessment, summary environmental analysis, or other appropriate documents).

Executing the Operational Law Mission In Regard to the Environment.

General Considerations. Judge advocates, mindful of the foregoing information, are almost ready to
execute the operational law mission regarding the environment. They should remember 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:
15
Department of Defense Directive 5060.7 (DOD Directive 5060.7), and Army Regulation 200-2 (AR 200-
16
2).

When executing a mission within a foreign nation the military leader should first consider three general
rules which 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
17
nations unless Congress has expressly provided otherwise.” Third, any acts contemplated by officials
within the Department of Defense that require “formal communications with foreign governments

11
DEP’T OF ARMY, REG. 200-2, ENVIRONMENTAL EFFECTS ABROAD OF MAJOR DOD ACTIONS, App. H, para. C.3. (23 Dec. 1988).
[hereinafter AR 200-2].
13
Id. at para. 2-5 (iii).
14
Id. at para. 2-4.
15
DEP’T OF DEFENSE, DIR. 5060.7, ENVIRONMENTAL EFFECTS ABROAD OF MAJOR DOD ACTIONS (31 March 1979) [hereinafter DOD DIR.
5060.7].
16
AR 200-2, supra note 11.
17
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 and regulation, but
by relevant international agreements and arrangements. See id. para 8-5 (a).

5-3
concerning environmental agreements and other formal arrangements with foreign governments” must be
18
coordinated with the Department of State.

The Required Analysis and Actions. Instead of promulgating additional and possibly more onerous
19
requirements, the Army’s regulation simply restates the requirements of DOD Directive 5060.7. Very
similar to Executive Order 12,114, DOD Directive 5060.7 provides the same four types of environmental
events described within the Order:

1. major federal actions that do significant harm to the environment of 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,
20
designated for protection by the Secretary of State.

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 an environmental study (ES) or an
environmental review (ER) to formally take into account the operation’s impact on the environment.

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
21
is the “participating nation” Determination. This is because most overseas contingency
operations do not generate the first, third, or fourth types of environmental 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
22
operation. If the nation is participating, then no study or review is technically required. Of the
four recent contingency operations (Somalia; Haiti; Guantanamo Bay, Cuba; and Bosnia), the
23
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 avail itself of the participating nation exception. Accordingly, the United States had a choice of

18
Id. at para. 8-3 (c). The judge advocates that work the environmental law issues should open up a line of communication with a point
of contact (POC) with the Department of State early on in the process.
19
Id. at App. H.
20
Id. at App. H, para. B.
21
Id. at App H, para. B.1.a.
22
Although, a study or review of some nature has been promulgated in every recent operation.
23
See Haiti Message and Dunn Message, supra note 9.

5-4
accepting the formal obligation to conduct either an ES or a ER, or seeking an exemption. In both
24
cases, the United States sought and received an exemption.

The preceding paragraph reported that the United States required exemptions in both
Operations Restore Hope and Sea Signal because neither Somalia nor Cuba were participating
nations. Conversely, the planners for Operations Uphold Democracy and Joint Endeavor
concluded that both Haiti and Bosnia would act as participating nations, during the course of each
25
respective operation.

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
26
involvement through a third nation or international organization.

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 straight forward.

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 nation’s 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
27
participating nation status is even stronger. Finally, if the host nation agrees to work with the
28
United States on conducting a bilateral environmental review, the case is stronger still.

24
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
Signal’s 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 GENERAL’S 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 nation’s environment.
25
Lieutenant Colonel Richard (Dick) B. Jackson, having served a legal advisor, within the United States Atlantic Command Staff Judge
Advocate’s 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
General’s School, United States Army, Charlottesville, Virginia (Mar. 20, 1997). See also CENTER FOR LAW AND MILITARY OPERATIONS,
THE JUDGE ADVOCATE GENERAL’S 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].

26
See AR 200-2, supra note 11, at App. H, para. A.1.a.
27
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).
28
Id. at para. 4.

5-5
 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
29
combatant commander. In addition, once this election is made, the second decision of what type
30 31
of environmental audit to perform is also made at the unified command level. In the cases of
Operations Uphold Democracy and Joint Endeavor, the complete action was prepared by the
32
tandem effort of the respective J4-Engineer Section and the Staff Judge Advocate’s Office. 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
33
of the Dayton Peace Accords, the parties agreed to “welcome and endorse” the arrangements
and agreements to implement the Accord’s military aspects, to include the mission of the
34
Implementation Force (IFOR) led by United Sates forces. 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
35
analysis into their planning. They found that each of the nations that the operation might impact

29
See DOD Dir. 5060.7, supra note 15.
30
See Moore Memorandum, supra note 27. 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.
5060.7.
31
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 Command’s legal office, he and the Command’s 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).
32
Id.
33
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.
th th
SCOR, 50 Sess., 3607 mtg., UN Doc. S/RES/1031 (1995) [hereinafter Resolution 1031].
34
Id. at art. II.
35
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 12,114’s 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).

5-6
 were participating nations. They forwarded their conclusions to General George A. Joulwan, the
Commander-in-Chief, European Command, who approved the participating nation status by
36
approving the environmental appendix to the operation plan. As described earlier, General
Joulwan’s action took advantage of the participating nation exception, which neutralizes the formal
documented review requirement of Executive Order 12,114 and DOD Directive 5060.7.

The only possible argument in either Operations Uphold Democracy or Joint Endeavor that the
participating nation exception was not applicable is that the nations hosting these operations did
not freely volunteer to host United States forces. Instead, the argument might go, both Haiti and
Bosnia-Herzegovina agreed to the entrance of the multi-national forces only after the United States
applied the world class coercion of a super power. The question then becomes: is a nation
considered a “participating nation,” if the participation is the product of coercion? This question is
not accompanied with a simple answer. It is clear, however, that legitimate international
agreements that invite United States forces into a host nation and set out the terms of cooperation
between a host nation and the forces of the United States satisfy the participating nation exception
of Executive Order 12,114.

The issue next becomes what elements are necessary to have an enforceable (or legitimate)
international agreement. The elements required for an international agreement are “(1) an
agreement, (2) between governments (or agencies, instrumentalities or political subdivisions
37
thereof) or international organization (3) signifying an intent to be bound under international law.
Under contemporary international law, if the “intent to be bound” is formed while under duress the
38
agreement is invalid.

If, however, the intent is formed under duress which is applied as a result of lawful action that is
orchestrated under the provisions of the United Nations Charter, the resulting leverage is not
unlawful and the intent formed on the part of the host nation is not the result of improper
39
coercion. For example, the United State’s entry into Haiti, as the lead nation to a multi-national
force, authorized under the provisions of the United Nations Security Resolution 940 [hereinafter
Resolution 940] (authorized under the further provisions of chapter VII of the United nations
40 41
Charter) was lawful. The Carter-Jonassaint Agreement, negotiated under the authority of
Resolution 940, to provide for the peaceful entry of the multi-national force was similarly lawful and
valid. Consequently, the terms of cooperation expressed within that lawful and valid agreement
signified a degree of participation in the operation on the behalf of Haiti that satisfied Executive
Order 12,114’s participating nation exception.

36
Id.
37
See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, VOLUME 1, ∋ 301 (1987) [hereinafter
RESTATEMENT]. Also see THE INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL’S SCHOOL, UNITED
STATES ARMY, THE 1996 OPERATIONAL LAW HANDBOOK, 3-3 (June 1996) [hereinafter 1996 OPLAW HANDBOOK] (paraphrasing DEP’T
OF ARMY, REGULATION 550-51, FOREIGN C OUNTRIES AND NATIONAL: AUTHORITY AND RESPONSIBILITY FOR NEGOTIATING, CONCLUDING,
FORWARDING, AND DEPOSITING OF INTERNATIONAL AGREEMENTS (1 May 1985) [hereinafter AR 550-51]).
38
Under traditional (or pre-UN Charter) “international law, consent to a treaty could not be invalidated on the basis of coercion of a state
or its representative.” However, the advent of the U.N, Charter’s article 2(4) prohibition on the use or threat of force in international
relations has made coercion an improper form of leverage during the negotiation of an international agreement. See id. ∋ 331. See
also DEP’T OF ARMY, PAMPHLET 27-161-1, LAW OF PEACE, VOLUME I, 8-8 (1 Sep. 1979) [hereinafter DA PAM 27-161-1].
39
See RESTATEMENT, supra note 37, at cmt. d., ∋ 331.
40
In 1994, the Security Council of the United Nations authorized the creation of a multi-national force to rid Haiti of an “illegal de facto
regime,” to stop violations of human rights law, and to restore the legitimately elected President (Restore Democracy) to power. See
S.C. Res. 940, U.N. SCOR, 49th Sess., 3413th mtg., U.N. Doc. S/RES/940 (1994) [hereinafter Resolution 940]. The subsequent
diplomacy (including all international agreements and implementing arrangements) between the de facto regime and later the restored
legitimate regime were properly executed under the Resolution 940 mandate.
41
See Carter-Jonassaint Agreement, supra note 25.

5-7
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 the
provisions of the service regulations that implement Executive Order 12,114. In cases where the
facts do not indicate a participating nation, then military lawyers must continue to search for
answers within these regulations. The most probable course of action is to determine whether the
proposed operation properly falls within one of Executive Order 12,114’s exemptions. If an
exemption applies, 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
42
5060.7).

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
43
provided in DOD Directive 5060.7 (reprinted in AR 200-2), and forwarded an exemption request
44
based upon the exemption of national security.

The exemptions are broad and would likely provide exempted status to most foreseeable
overseas military operations. Consequently, these operations would enjoy exemption from the
45
“NEPA-like” documented review requirements of Executive Order 12,114.

Unlike the participating nation exception, however, exempted status requires that the military
46
leader take an affirmative step to gain a variance from the formal documentation requirements.
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 Chairman’s Legal
Advisor’s 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
47
Sea Signal to national Security.

The entire written action was only three pages long, including the one page (three short
48
paragraphs) signed by Mr. Kaminski). The action is shorter than most actions that involve the

42
DOD DIR. 5060.7, supra note 15.
44
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).
46
Under the participating nation exception, the unified commander may simply approve the operation plan that integrates the exception
into its environmental considerations appendix. See Joint Endeavor Operation Plan, supra note 35.
47
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 24.
48
The memorandum action provided the (1) “general rule,” as required by Executive Order 12,114 and DOD Directive 5060.7, (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

5-8
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 probably 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 Nation’s
Environment;
(3) Where the Host Nation Is Not Participating; and
(4) One of the Ten Exemptions Is Applicable.

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 considerations section of the basic plan.

Executing the Operation Plan. Whether the plan contains a participating nation assumption or
serves as further documentation of an approved Executive Order 12,114 exemption, the result is
the same. In both cases, no formal documented review or study is required. This does not,
however, mean that some type of study or audit should not be undertaken to minimize the
environmental impact of the operation. In contrast, it is the policy of the United States to always
conduct a good faith environmental audit to reduce potential adverse consequences to the host
49
nation’s environment. 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
50
operational success.

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
51
interfere with mission accomplishment.” 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
52
thereafter as is possible. Additionally, lawyers at all levels of command must be cognizant of an
operation’s environmental dimension so that they can ensure that the doctrinally required
consideration is integrated into operation plans and orders, training events, and civil-military
53
operations.

The military lawyer’s 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 lawyer’s assistance in the onerous task of

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 24.
49
See DEP’T 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 US and HN agreements, environmental laws, policies, and regulations”).
50
It is not the intent of United States forces to circumvent their environmental stewardship responsibilities. Military leaders must,
however, work within the system of law to balance operational success with many concerns, to include their environmental stewardship
obligations.
51
During Operation Restore Hope, in Somalia, the multi-national force, under United States leadership, determined that United States
forces actions in that operation were exempted from Executive Order 12,114’s 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 24, at 23.
52
Id. at para. 4.b.
53
Id. at para. 4.c.

5-9
 54
translating this guidance into action. The judge advocate must ensure that this translation takes a
55
form that those charged with its execution can easily understand. All four of the operations cited
above serve as good examples of this type of lawyering.
56
Joint doctrine provides the framework for the foregoing translation and related legal work.
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;
(3) Solid and Liquid Waste Management;
(4) Hazardous Materials Management (Including Pesticides);
(5) Flora and Fauna Protection
(6) Archeological and Historical Preservation; and
57
(7) Base Field Spill Plan.

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
58
sources and the management of waste. This aspect of host nation environmental protection was
executed and monitored by a team comprised of judge advocates, medical specialists, and
59
representatives from the engineer community.

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

54
Interview, 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 is Major Sharon Riley, Officer in Charge of the 1st Infantry Division’s Schweinfurt Branch Office. Major Riley
has spent a good portion of her time, since deploying to Bosnia-Herzegovina, assisting commanders determine acceptable
environmental standards, by balancing operational considerations and realities with the Department of Defense’s general environmental
standards).
55
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.
56
See JOINT PUB 4-04, supra note 49, at II-8.
57
The Joint Publication 4-04 provides a description and examples of several of these seven elements. See Id.
58
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).
59
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 35, at para.
3.c.(1), Tab B to Appendix 5, to Annex D.

5-10
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
60
lawyers advised the use of environmentally sound dust suppressants.

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
61
made notes in regard to the status of land that came under their unit’s control. As a result of this
excellent planning and execution, United States forces were protected against dozens of fraudulent
62
claims filed by local nationals.

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, the 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
63
the DOD Overseas Environmental Baseline Guidance Documents (OEBGD). Although, baseline
documents are not technically applicable to overseas contingency operations where the United
64
States presence is less than permanent, 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
65
integrated into the operation plan as a reference and as a “source of additional environmental
standards, as [might be] deemed appropriate,” in the interpretation or supplementation of the
66
plan.

60
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 24, at 24.
61
See Joint Endeavor Operation Plan, supra note 35, at para. 3.c.14.
62
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 General’s 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”).
63
Department of Defense Directive 6050.16 requires that “DOD components operating abroad develop country specific “baseline”
guidance documents. 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 or the host nation standards.” See Dep’t of Defense, Dir.
5060.16, DOD POLICY FOR ESTABLISHING AND IMPLEMENTING ENVIRONMENTAL STANDARDS AT OVERSEAS INSTALLATIONS, PARA. C. (20
Sep. 1991) [hereinafter DOD DIR. 5060.16]. See also 1996 OPLAW HANDBOOK, supra note 37, at 16-2.
64
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 Commander’s Environmental Responsibilities Overseas, slides 10-11 (Unpublished Slide
Presentation, on file with author).
65
See Joint Endeavor Operation Plan, supra note 35, at 3.c.
66
Id. The general guidance placed in the plan stated that “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.

5-11
 It is important to bear in mind, however, that any particular country specific baseline document
67
does not control what United States forces do in 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 number of experts in this area recommend that the lawyers
and staff officers avoid the use of the term “overseas environmental baseline guidance document,
68
as it might confuse those charged with actual execution of environmental compliance. Everyone
involved in this process must clearly understand that all of the guidelines, to include the baseline
documents, are merely advisory in nature.

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
69
plans from each of the foregoing operations would each serve as excellent starting points. With
each successive operation United States forces have become more expert in their handling of the
70
environmental dimension of overseas operations

Command environmental standard operating procedure manuals, regulations, and instructions

serve as the final source of guidance. For example, United States Atlantic Command is in the
process of writing an Atlantic Command Instruction on environmental security, which provides
detailed guidance on overseas operational compliance, cleanup, conservation, and environmental
71
planning and training.

The Future and Changes in U.S. Policy and Law. Much of the analysis offered within this article
could change if the current version of Draft Department of Defense Instruction 4715.II is approved
72
and issued by the Secretary of Defense to replace DOD Directive 5060.7. The Instruction is
seen as a sort of compromise between a revised version of Executive Order 12,114 (with a more
restrictive mandate for the Department of Defense) and the favorable mandate of the current
version of the Executive Order. If approved many military lawyers believe that the instruction
would have a significant impact on the flexibility of military leaders charged with the execution of
73
overseas contingency operations.

67
See DOD Dir. 5060.16, supra note 63. See also Dunn Message, supra note 11.
68
These officers from the Joint Task Force, Unified Command, and Joint Staff levels, all felt that using the term baseline guidance
document might lead to a misunderstanding of its actual application. Telephone Interview, Mr. William Mackie, Joint Staff, Staff
Engineer, J4-International Legal Engineer Division (27 Mar. 1997) [hereinafter Mackie Interview]. See also Jackson Interview, supra
note 25. See also Moore Interview, supra note 31. See also McAdams Interview, infra note 70.
69
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 general’s corps have made capturing lessons from recent operations a priority.
70
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).
71
United States Atlantic Command, Instruction XXXX.XX, Environmental Security (Undated Draft Version, on file with author).
72
See Mackie Interview, supra note 68 (Mr. Mackie stated that Draft DOD Instruction 4715.II has been coordinated with each of the
unified commands and each of the services, except for the Army. His opinion is that once the Army finishes its review, formal adoption
will require at least one additional year. Accordingly, in his opinion, the instruction will not go into force until after June 1998.).
73
Working Memorandum, Colonel Ronald J. Later, Deputy Director for Logistic, United States Atlantic Command, to Joint Staff, J5
(Attention: Commander Mark Rosen), subject: DODI 4715.II, Analyzing Defense Actions With the Potential for Significant Environmental
Impacts Outside the United States - Action Memorandum (Undated Working Memorandum, on file with author).

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 The most controversial aspect of the proposed instruction is its impact on the participating
nation exception of Executive Order 12,114. Currently, in planning for a contingency operation, the
unified commander is free to make a determination that a host nation is a participating nation.
Once this determination is reached, the unified command is not required to conduct any specific
type of environmental review or to coordinate with the host nation (unless required by an
independent international agreement) in assessing potential adverse consequences to a host
74
nation’s environment.

The Instruction reduces the combatant commanders’ discretion by directing them to “coordinate
and approve implementation of [the] Instruction by the environmental executive agents in their
75
geographical areas of responsibility.” Previously, this type of coordination was only required
under DOD Directive 5060.16, for permanent United States installations in foreign nations, not for
contingency operations.

The Instruction further reduces the combatant commanders’ discretion by directing them, in
nations where no environmental executive agent has been appointed, to:

(1) Identify applicable host nation environmental laws and regulations

prescribing environmental analysis for actions occurring within the nation;
(2) Determine whether the host nation has an environmental analysis regime;
(3) Consult with host-nation authorities on environmental analysis issues as required
to maintain effective cooperation;
(4) Provide DOD Components with information on the host nation’s environmental
analysis regime;
(5) Consult with the Chief of the U.S. diplomatic mission in the host nation on
significant issues arising from DOD environmental analysis in that country; and
(6) Ensure preparation of environmental analysis in compliance with this instruction for
Major DOD Actions necessary to perform assigned missions of the command,
76
including military operations, joint training, and logistics.

The participating nation exception is substantially changed by the foregoing procedures and
77
another section within the Instruction that provides additional guidance in regard to such nations.
That section states that unless an exemption is applicable, the participation nation status of the
host nation does not serve as a categorical exception to the requirement to conduct some type of
78
environmental review. Instead, the operational planners must determine if the host nation is
79
already applying an environmental analysis regime to the DOD action. If the host nation is
applying such a regime, then the operational planners must request a copy of the analysis report
generated by such a regime. The planners should then use the report to “make informed
80
decisions” about the execution of the operation. If the host nation is not applying any form of
environmental analysis or refuses to produce the product of such an analysis, the United States
81
should offer to assist with some type of analysis.

74
Although, as stated earlier in this article, the United States performs such assessments as a matter of policy.
75
DEP’T OF DEFENSE, INST. 4715.II, ANALYZING DEFENSE ACTIONS WITH POTENTIAL FOR SIGNIFICANT ENVIRONMENTAL IMPACTS OUTSIDE
THE UNITED STATES, para. E.5 (Undated Draft Version, on file with author) [hereinafter INSTRUCTION 4715.II].

76
Id. at para E.5.b.
77
Id. at para. F.3.b.
78
Id.
79
This must be “in consultation with the Executive Agent (or the cognizant combatant commander if no Executive Agent has been
designated for the designated nation).” Id. at para. F.3.b.(1).
80
Id. at para. F.3.c.(2).
81
Id. at para. F.3.c.(3).

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 The United States may elect to proceed with the operation, even if the host nation has no
intention of analyzing the environmental impact of the operation or providing the report of such an
analysis. If the United States makes this election, however, they must conduct an environmental
82
audit “on the basis of whatever information is readily available.”

As referenced above, a unified command may still request the exemptions provided in Executive
83
Order 12,114. However, the language of the Instruction, in regard to the exemptions is much
different than the language of DOD Directive 5060.7. The Instruction only exempts the DOD
84
component from formal analysis that proceeds the action. Accordingly, the leadership of even
85
exempted operations must conduct an environmental audit to consider the effects of the
operation on the host nation’s environment.

The stated goal of the Instruction is to “strengthen compliance with Executive Order 12,114,” to
86
avoid the possibility of the issuance of a more stringent executive order. The strategy is to offer
the proponents of a more restrictive overall regulation of federal actions overseas with a
compromise regime that is less restrictive than a new executive order might be, but more
restrictive than the current rules. It appears that this strategy will prevail and the Department of
Defense will soon have a new instruction to guide its overseas operations in regard to the
environment.

DOD Dir. 6050.16 (requiring country specific baseline documents). Does not apply to operations
conducted off of overseas facilities/installations (does not apply during to the temporary operations
characterized as OOTW). Although, at some point an activity that begins as an OOTW might mature into
a permanent U.S. presence. This might trigger the Directive’s application (contact the Unified Command).
87
2. Laws of Host Nations.

U.S. forces are immune from host nation laws where:

(1) immunity is granted by agreement;

88
(2) U.S. forces engage in combat with national forces; or
89
(3) U.S. forces enter under the auspices of a U.N. sanctioned security enforcement mission.

The question of immunity 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

82
Id. at para. F.3.c.(4).
83
Id. at para. F.2.
84
Id. at para. F.2.
85
But not a formal analysis, such as an environmental study or review.
86
Joint Staff Action Processing Form, Commander Mark Rosen, J5, DODI 4715.II Action Officer, subject: Analyzing Defense Action
Impacts Outside the United States (10 May 1996).
87
For additional discussion of host nation law application see Host Nation Law section, ch. 13, this handbook.
88
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). See DA PAM 27-161-1, supra note 38, at para. 11-1 (1 September 1979).

89
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 defacto government makes trigger this exception. This is another of the very few examples where the Law of
the Flag version of sovereign immunity survives.

5-14
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:
90
(1) consent to enter by legitimate (recognized) government included implied grant of immunity;
(2) Law of the Flag applied, as it did during Operation PROVIDE COMFORT;
(3) operation was sanctioned by the UN as a Chapter Seven enforcement action (even though peace
enforcement in this context does not provide an exact fit).

Bottom Line. JAs should contact the unified or major command to determine DOD’s position relative
to whether any host nation law applies. JAs should request copies of relevant treaties or international
agreements from the MACOM SJA or the unified command legal advisor. Finally, JAs should aggressively
seek information relative to any plan to contact a foreign governments to discuss environmental
agreements or issues. The Army must consult with the Department of State before engaging in "formal"
91
communications regarding the environment.

3. Traditional Law of War (LOW). Although the LOW is technically not triggered until a state of armed
92 93
conflict exists, many OOTW require the application of LOW principles as guidance. The prudent JA
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
94
evolve into an armed conflict. 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 TAB Q 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.
95
Hague IV. 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
96
methods of warfare are not unlimited (serving as the baseline statement for ELOW).

Article 23e forbids the use or release of force calculated to cause unnecessary suffering or
destruction. JAs should analyze the application of these principles to ELOW issues in the same

90
DA PAM 27-161-1, supra Note 10, at para. 11-1. This is the weakest argument, as this theory in disfavor.

91
See AR 200-2, supra Note 11, at para. 8-3 c.

92
The type of conflict contemplated by article 2, common to the four Geneva Conventions.

93
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 5, at Operational Law 15-16.

94
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 JAs 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. DEP’T OF DEFENSE, FINAL
REPORT TO CONGRESS: CONDUCT OF THE PERSIAN GULF WAR (April 1992).

95
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.].

96
Id. at art. 22.

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 manner they would address the possible destruction or suffering associated with any other weapon
use or targeting decision.
97
The HR also prohibit destruction or damage of property in the absence of military necessity. When
performing the analysis required for the foregoing test, the JA 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 area's 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.
98
The 1925 Gas Protocol. 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
99 100
control agents (RCA). E0 11850 specifies U.S. policy relative to the use of chemicals,
herbicides, and RCA. E0 11850 sets out four clear rules regarding the Gas Protocol. First, the U.S.
reserves the right to retaliate with chemical weapons if such weapons are first used against U.S.
forces. Second, that as a general rule, the U.S. renounces the use of both herbicides and RCA, in
war. Third, as a matter of policy, herbicides and RCA may not be used "in war," in the absence of
national command authority (NCA) authorization. Finally, that 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
101
around the "immediate defensive perimeters" of U.S. installations.
102 103
The 1993 Chemical Weapons Convention (CWC). 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,
104
wherever the CWC creates a more rigorous rule, the CWC applies.
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

97
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.

98
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].

99
The U.S. position is that neither agent meets the definition of a chemical under the treaty's provisions.

100
Exec. Order No. 11850, 40 Fed. Reg. 16187 (1975), reprinted in FM 27-10, at C1-C2 [hereinafter EO 11850].

101
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.

102
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].

103
For a more discussion regarding the CWC see ch. 18.

104
Id. at Preamble.

5-16
 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
means property, which in turn means the environment), which would be excessive [in
105
relation to military necessity].
106
The Fourth Geneva Convention GC. 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
107
committing a grave breach. A simple breach only requires parties to take measures necessary for
108
the suppression of the type of conduct that caused the breach.

U.S. policy requires the prompt reporting and investigation of all alleged war crimes (including
109
ELOW violations) as well as appropriate disposition under the provisions of the UCMJ. These
obligations makes our own soldiers vulnerable if they are not well trained relative to their
responsibilities under ELOW provisions.
110
The ENMOD Convention. 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 either (1) widespread, (2) long-lasting, or (3) severe violates
111
the ENMOD (single element requirement). 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

105
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].
106
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].

107
Id. at art. 146, cl. 2.

108
Id. at art. 146, cl. 3.

109
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).

110
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].

111
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.

5-17
 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 an 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. JAs should understand that none of these activities, nor similar
low technological activities, are controlled by the ENMOD.

Finally, the ENMOD does not regulate the use of chemicals to destroy water supplies or poison
112
the atmosphere. As before, this is the application of a relatively low technology, which the
113
ENMOD does not reach. Although the relevance of the ENMOD Convention appears to be
minimal given the current state of military technology, JAs 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. JAs serving as part of a multinational forces 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
114
coalition states.
115
The 1977 Protocols Additional to the Geneva Conventions (GP I & GP II). 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 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).

112
Although these type of activities would violate the HR and the Gas Protocol.

113
Environmental Modification Treaty: Hearings Before the Committee on Foreign Relations, U.S. Senate, 95th Cong., 2nd Sess. 83
(1978) (Environmental Assessment) [hereinafter Senate Hearings].

114
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 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. JAs to
be conversant in treaties like the ENMOD Convention.

115
Protocol I Additional to the Geneva Conventions, Dec. 12, 1977, 16 I.L.M. 1391, 1125 U.N.T.S. 3 [hereinafter GP I].

5-18
 Most experts and the Commentary to GP I state that long-term should be measured in decades
(twenty to thirty years). The other two terms remain largely subject to interpretation, however, a
116
number of credible interpretations have been forwarded. Within GP I, the term "widespread"
117
probably means several hundred square kilometers, as it does in the ENMOD Convention. While
"severe" can be explained by article 55's reference to any act that "prejudices the health or survival
118
of the population." Because the general protection found in articles 35 and 55 require the
119
presence of all three of these elements, the threshold is set very high. For instance, there is little
doubt that the majority of carnage caused during world wars I and II (with the possible exception of
120
the two nuclear devices exploded over Japan) would not have met this threshold requirement.

Specific GP I protections include article 55's absolute ban on reprisals against the environment;
article 54's absolute prohibition on the destruction of agricultural areas and other areas that are
indispensable to the survival of the civilian population; and article 56's absolute ban on works or
121
installations containing dangerous forces (damn, dikes, nuclear plants).

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
122
centers used solely to supply the enemy fighting force are not protected. A knowing violation of
article 56 is a grave breach. Additionally, the three element threshold set out in articles 35 and 55 is
so high, a violation of these provisions may also be a grave breach, because the amount of damage
123
satisfies the "extensive" damage test set out by GC article 147.

4. 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

116
CLAUDE PILLOUD, INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO
THE GENEVA C ONVENTIONS OF 12 AUGUST 1949, at 410 to 420 (Yves Sandoz ed., 1987) [hereinafter SANDOZ].

117
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.

118
Id. at 417. The article 55 language has roughly the same meaning as the meaning of "severe" within the ENMOD Convention.

119
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).

120
See SANDOZ, supra Note 120, at 417.

121
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.).

122
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."

123
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.

5-19
protections established by treaties and customary law that protect the environment during periods of peace
124
(if not abrogated by a condition of armed conflict). In the aftermath of Operation DESERT STORM, the
international community generally accepted the application of the Martens clause as a useful contributor to
125
the protection of the environment in times of armed conflict.

Conclusion.

As our nation becomes increasingly environmentally conscious the attention focused on

integrating the environment into all phases of overseas operations will accelerate. 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, as the
Army Judge Advocate General’s Corps rewrites its current version of its own keystone doctrinal
source for legal operations, it has initiated a separate review into the role the environment should
126
play in operational law doctrine.

Judge advocates, as they have traditionally done, must continue to stay cognizant 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 client’s 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 MAJOR ENVIRONMENTAL LAW LEGISLATION

OCEAN DUMPING - 33 USC 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.

DEEPWATER PORTS- 33 USC 1501 INTERNATIONAL APPLICATION THROUGH 33 USC 1510. Regulates
construction, ownership, and operation of deepwater ports beyond the territorial limits of the US, thereby protecting
indigenous marine life and the coastal environment.

FOREIGN CLAIMS ACT - 10 USC 2734. This major legislation prescribes the standards, procedures and amounts
payable for claims arising out of noncombat activities of the US Armed Forces outside the US.

INTERNATIONAL AGREEMENTS CLAIMS ACT - 10 USC 2734A. Regulates payment of claims by the US. where
such claims are based on an international agreement applying to the US Armed Forces and the civilian component.

NATIONAL HISTORIC PRESERVATION ACT - 16 USC 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 consultation of the World Heritage List or equivalent
national register prior to approval of any OCONUS undertaking.

THE OIL POLLUTION ACT OF 1961 - 33 USC 1001-1015. 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 PRE-COLUMBIAN

MONUMENTAL OR ARCHITECTURAL SCULPTURE OR MURALS. This Public Law prohibits the importation into
the US of pre-Columbian monumental or architectural sculptures or murals which are the product of pre-Columbian

124
See HR, supra note 95 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.

125
See SECRETARY-GENERAL REPORT, supra note 127, at 15.

126
The current version of the Army Judge Advocate General’s Corps doctrine on “Legal Operations” described environmental law
practice as one of the discrete areas of the law that judge advocates practice within the operational context. See DEP’T OF ARMY, FIELD
MANUAL 27-100, LEGAL OPERATIONS, 3 (3 Sept. 1991). The leadership of the Judge Advocate General’s Corps recently directed the
judge advocates charged with updating the current doctrinal manual with conducting a separate review regarding how the Corps should
integrate environmental protection and considerations into its doctrine. See CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE
ADVOCATE GENERAL’S SCHOOL, UNITED STATES ARMY, DRAFT DEP’T OF ARMY, FIELD MANUAL 27-100, LEGAL OPERATIONS (unpublished
draft version, on file with author).

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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.

ANTARCTIC PROTECTION - 16 USC 2461. This major legislation prohibits prospecting, exploration, and
development of Antarctic mineral resources by persons under the jurisdiction of the US.

ENDANGERED SPECIES ACT OF 1973 - 16 USC 1531. The purpose of this Act is to determine fish, wildlife, and
plant species which might be threatened or endangered; and to specify geographically the "critical habitat" of such
species.

MARINE SANCTUARIES ACT (72), as amended - 16 USC 1431-1435 IMPLEMENTED THRU 33 USC 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
US.

MARINE MAMMAL PROTECTION- 16 USC 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 US without a permit.

FOREIGN ASSISTANCE - 22 USC 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.

RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) - 42 USC 6938. Prohibits the export of hazardous
waste without the consent of the receiving country and notification to the appropriate US authorities.

ACT TO PREVENT POLLUTION FROM SHIPS, 33 USC 1901. This Act provides the enabling legislation which
implements the protocol of 1978 relating to, the International Conv. 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.

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 US, 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 US 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 (Para. 1-24 and 1-40). Sets out standards and
procedures far environmental protection by commanders outside the US (OCONUS). It 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 Army’s endangered species
program.

AR 42O-40 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 US, Department of Army activities will comply

5-21
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 REGULATIONS127

NAVY OPNAVINIST 5090.1 - NAVY PROGRAM FOR THE PROTECTION OF THE ENVIRONMENT AND
CONSERVATION OF NATURAL RESOURCES. Contains guidance to deployed commanders concerning the
management of hazardous materials, the disposal of hazardous waste, and ocean dumping. It also contains the
Navy's implementing guidance for Executive order 12114 and DOD Directive 6050.7, setting out the situations that
require environmental review for OCONUS actions.

MARINE REGULATIONS128

MARINE MCO P5090.2 - ENVIRONMENTAL Compliance AND PROTECTION MANUAL. This codification of the
Marine Corps policies instructs the deployed commander to adhere to SOFA guidance and HN laws that establish and
implement HN pollution standards.

AIR FORCE REGULATIONS

AF REG 19-3 - ENVIRONMENTAL IMPACT ANALYSIS PROCESS (EIAP) OVERSEAS. This regulation is the Air
Force's implementing guidance for Executive Order 12114 and DOD Directive 6050.7. It sets out service activities that
require environmental documentation and the type of documentation required.

127
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, US Navy Reg, 1990.

128
See MCO P5090.2, Envir. Compliance and Protection Manual, 26 Sep 91.

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 CHAPTER 6
OPERATIONS PLANS AND ORDERS

The references at Chapter 1, this Handbook, require Judge Advocate review of OPLANS and
OPORDS.

The JTF/Corps/Division OPLAN in Context

The JTF/Corps/Division OPLAN 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 JCS 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.

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
1
(JOPES). JOPES applies to those OPLANS prepared by CINCs in response to the missions assigned
them by the JCS in the JSCP, Vol. I.

JOPES provides the guidance and procedures for use in the development, coordination, dissemination,
review, and approval of Unified Command joint operations plans during peacetime. 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, that 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,
which produces an OPORD for a particular mission, 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
2
Action Plan. See Figure 1, below.

JAs should become involved in the Plan Development process and not merely in the Plan Review stage.
Participation in the Plan Development process enables JAs to prevent the inclusion of legally questionable
actions into the OPLAN. It is critical for the JA to participate in the Joint/Operational Planning Group
(JPG/OPG), where the Legal Advisor provides direct input into the decision-making process, along with
other principal and special staff officers and subject matter experts. While the detailed JOPES Deliberate
Planning Process may not be used in developing supporting OPLANs at the Corps/Division level, JAs
should also be alert to the advantages of participating in the Plan Development, as well as the Plan Review
process.

1
See JOINT PUB. 5-03.2, JOINT OPERATIONS PLANNING AND EXECUTION SYSTEM, VOL. II, PLANNING AND EXECUTION
FORMATS AND GUIDANCE (10 Mar 1992) .
2
See JOINT PUB. 5-0, DOCTRINE FOR PLANNING JOINT OPERATIONS (13 April 1995).

6-1
Figure 1

DELIBERATE PLANNING
VOL II: Forces

VOL I: Tasks

I II III IV V
Concept AN Plan Plan Supporting LA
N TPFDD
Initiation PL Maintenance
Development N Development Review Plans OP
CO
TPFDD

Establish Update &

NO Maintain Database
Database
PLAN

Deployment
Database Win
Determine Supported
Feasible
Courses of Action JDS
Develop Expand Modify Monitor
Deployment Movement
Plans/Schedules

I II III IV VV D VI
SIS!
Situation Crisis Course of Action Execution
Course of Action Execution
POR Execution
CRI Development Assessment Development Selection Planning
Planning O
TIME-SENSITIVE PLANNING
TPFDD

AND / OR
JCS JCS JCS
Warning Planning TPFDD Execute
Order Order Maintenance Order

Reviewing Plans and Mission Orders

Types of Plans and Mission Orders. Units plan for specific contingencies and missions. In an actual
deployment, operations or contingency 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. 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
change -- orders will probably be modified through Fragmentary Orders (FRAGOs).

Responsibility for Plans and Order Review. Plans review is accomplished by operational law
attorneys, who 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
SJA's 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 SJA's representative must be in the decision-making cycle not only

6-2
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 JA must be a member of the
"plans team," a "known commodity," not an interloper in the operations planning process.

Operational Law Concerns in Plans and Orders. JAs 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. Division-level
and higher plans are usually general in scope and do not raise significant law of war questions other than
EPW treatment. They do address other OPLAW issues, however, such as criminal jurisdiction and claims,
in a Legal Annex. Mission orders below Division-level may raise law of war questions.

Increasingly, JAs serve as "the honest broker" in the review of plans and orders. Good advice to JAs
serving in such a role is to: (1) look at the ENTIRE PLAN -- both of your unit and of the higher unit; (2)
READ AND STUDY the Mission Statement and Commander's Intent (is the statement and intent clear -
does it sufficiently define the parameters 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 command's 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., authority -- always -- to protect the force.)
Watch out for "mission creep;" help the commander stay in his 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
important -- particularly in post-combat stability operations and OOTW.

The OPLAN Review Process. As noted in the Preface of the OPLAN Checklist, the Checklist uses the
JOPES format (the Checklist is at the end of this Chapter). 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. JAs with more experience than time may prefer to 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
worked -- and made sense -- in 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 US Forces Haiti, the US component of the UN Mission in Haiti (UNMIH), FRAGO 16
of OPLAN 2380 (Uphold Democracy).

Personal Preparation for Deployment. Deploying JAs must ensure that their personal affairs are
up-to-date and that they are prepared for deployment. See Chapter 14, this Handbook. 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 JAs 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 JAs on preparation for, and execution of, deployment.

6-3
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 for -- and executing --
movement. Train on executing the office deployment plan. Take the deployment package to the field.
Tailor the materials for your unit's 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, and checklists
and "Smart," or Continuity, Books. (See Chapter 14, this Handbook.) 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 5. JUSTICE (“Job One”)

When and what do we shoot? Jurisdiction (Joint or service specific)
Mission? Convening Authorities
Commander's Intent? Control Measures (GO # 1)
ROE? TDS, MJ Support

2. AUTHORITY
To conduct certain missions
- "Law enforcement"
- Training (FMS, FAA)
- HCA
To capture/detain locals

3. STATUS
Ours
- Law of the Flag (combat or vacuum [Somalia, e.g.])
- SOFA
- Other (Admin. & Tech. P. & I. through Diplomatic Note, e.g.)
Theirs
- Status
- Treatment
- Disposition

4. THINGS
Buying (Contracting)
Breaking (Claims)
Blowing Up (Targeting)

6-4
 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
checklist was prepared by the Headquarters Marine Corps Law of War Reserve Augmentation Unit (TDE).
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 Commander's decision and the initiation of military action, it is important that all plans ensure
that US responsibilities under domestic and IL are properly discharged. DOD Directive 5100.77 requires
the Chairman of the JCS and the commanders of unified and specified commands to ensure that ROE
conform to the LOW. MJCS memo 0124-88, 4 Aug 88, 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.
The 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 5500.15. The checklist does not cover normal military law or UCMJ questions except as they
might interact with or be 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. The latter documents are identified by an asterisk
(*).

___Is Art 2 or 3 applicable to the situation?

___Have partners and opponents ratified Protocol 1 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 US voluntary
aid societies assigned exclusively to medical and medical support duties (arts. 24 and 26 of GWS)?:
___Are they subject to US 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 US authorization and the previous consent of their own government?
___Are they under official US control?
___Has their intended assistance been notified to the enemy?

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 ___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:
___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 enemy's 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 US forces, as required by art. 34 of GWS(Sea)?
___Are signals intelligence personnel aware of the prohibition on the enemy's 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)?

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 ___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)?
___Is 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 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 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 plan provide a procedure for inventorying and safeguarding PW personal property?
___Does 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 OPSEX, 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 US forces, will any deployment route be over or through
foreign countries which prohibit or restrict such weapons?
Tab D - Nuclear Fire Support Table/Target Lists.
Tab E - Nuclear Target Overlay

Appendix 2 - Chemical Warfare and NBC Defense Operations

___Does 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 Geneva Gas Protocol and Exec Order 11850?
(also paragraphs 37 and 38 and Change 1 to FM 27-10 and art. 23(a) of Hague IV).

6-7
 ___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 US 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 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 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 US 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
US 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 US 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:
___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 enemy's 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))?

6-8
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 attack of civilians and employment of weapons
and tactics which 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)?
___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)?

6-9
 ___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 CloseAir 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)

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 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 Geneva Gas Protocol 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 - Countermechanized 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

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 ANNEX D - LOGISTICS
___Will 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 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 plan support the possible requirement for evacuation of PWs, civilian internees, refugees, and
the sick and wounded?
___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)?
___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 US relief societies or private
US 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 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 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 - Nonnuclear Ammunition

___Does 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 JA designated to deal with the ICRC?
___Is a POC designated to collect evidence on war crimes?

6-11
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 FM 19-40, Enemy Prisoners of War, Civilian Internees and
Detained Persons?
___Does plan include procedures for ascertaining whether various persons who fall into the hands of US
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 US 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 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 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 plan provide for furnishing ID's 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 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);
___Discip. 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 US Personnel

___Does plan include appropriate procedures for reporting alleged war crimes and related misconduct
committed by the enemy, and alleged misconduct by US 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 attached format 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

6-12
___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 attack of civilians and employment of weapons
and tactics which 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 US voluntary aid
societies assigned exclusively to medical and medical support duties (arts. 24 and 26 of GWS)? If
so:
Are they subject to US 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 US authorization and the previous consent of their own government?
Are they under official US 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 enemy's 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 US
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))?

6-13
 ___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 US 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 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 US 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?

International Agreements and Congressional Enactments

If plan contemplates deployment of US forces into a foreign territory, the following questions should be
answered:
___Will deployment of US 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 US 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 US 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 US. Also, consider any Congressional enactment which may be applicable.
___Is deployment of US forces into the foreign territory to protect or extract US or foreign nationals?
Consider the traditional theories of justifiable intervention developed under the customary and
codified IL.
___Is deployment of US forces into the foreign territory to protect or extract sensitive US material or
equipment such as nuclear ordnance or cryptographic material or to protect US (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 US nationals and property.

If plan contemplates the deployment of US forces into foreign territory, consider whether the War
Powers Resolution is applicable.
___Does the deployment situation clearly indicate imminent US involvement in hostilities?
___Will the deployed forces be equipped for combat?
___Will the deployed forces substantially enlarge US 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 US such rights? If so, does plan
make reference to the agreement and is it consistent with the terms of the agreement? If such an

6-14
 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?

If nuclear weapons are to be deployed with US forces, will any deployment route be over or through
foreign countries which 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 US forces will pass through or be deployed into? If so:
Do the agreements allow US 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 US personnel in the event of hostilities?
Do the agreements have any provisions which are either automatically suspended or become subject to
review in the event of hostilities?
___If we have no SOFA with a country through which US 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 US forces?
___Does plan assign responsibility to an appropriate command or staff office for maintaining liaison with
the US 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 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 US 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?

6-15
 ______ Is 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 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 US policy as set
forth in DAPam 690-80, Administration of Foreign Labor During Hostilities? Are they consistent with
existing alliance agreements and SOFAs?
___Does 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 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 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 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

___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

6-16
 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 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 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 plan call for the collection of information about allied policies, attitudes and practices
concerning compliance with the LOW?
___Should 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 US forces identify targets which 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?
___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 DAPam 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 SOFA’s? [See Chapter 9]

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)?

6-17
 ___Is plan consistent with the limitations on requisition of medical materials and stores of an occupied
population contained in art. 57 of GC?
___Does plan provide, subject to the Commander's discretion, for the marking with the red cross of all
US 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 plan reference or identify appropriate protective symbols (art. 38 of GWS and art. 41 of
GWS(Sea)?
___Does 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?
___Does plan provide, subject to the Commander's discretion, for the marking with the red cross of all
US 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 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 US relief societies or private
US 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 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 US 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 US forces be accorded PW status in compliance with art. 14 of GWS and
arts. 14 and 16 of GWS(Sea)?

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 ___Is plan consistent with the requirement that enemy wounded, sick and shipwrecked religious and
medical personnel who fall into the hands of US forces be accorded retained person status in
compliance with arts. 24, 26 and 28 of GWS?
___Does plan provide for the care of enemy wounded and sick and graves registration (arts. 109-110,
112-114 and 120-121, GPW).
___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 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

FORMATS FOR LEGAL APPENDICES

[See JOPES Volume II, JEL Library]
(Format, Rules of Engagement Appendix)
CLASSIFICATION
HEADQUARTERS,
US 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 US 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) ( ) US National Policies. Refer to appropriate official US 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:

6-19
 (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
CLASSIFICATION

( Format, Enemy Prisoners of War, Civilian Internees, and Other Detained Persons Appendix)

CLASSIFICATION

HEADQUARTERS,
US 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-US military forces and US 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 DETs. 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:

6-20
 (1) ( ) Agreements with the host country, allied forces, and US 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.
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.
6. ( ) 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.
7. ( ) Command and Control. Discuss C3 systems support and procedures necessary to conduct EPW, CI,
and DET activities. Refer to appropriate sections of Annex K.
8. ( ) Reports. Indicate reports required by appropriate reference(s).

Appendix 1 to Annex E
CLASSIFICATION
(Format, Legal Appendix)
CLASSIFICATION
HEADQUARTERS,
US 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.

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 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

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 USC. § 287 (U)
h. Foreign Assistance Act (FAA), 22 USC. § 2151-2429
i. JCS Pub 2, Unified Action Armed Forces (UNAAF) (U)
j. US-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 (Commander's 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-
Commander's 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 US 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 US manpower and
logistics contributions to United Nations operations. Reference (i) establishes the general policy for
addressing legal issues of US 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.

6-22
 (3) Monitor foreign criminal jurisdiction matters involving US 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) US Claims. The Department of the Army (DA) has been assigned Executive Agency,
UP ref (p), for claims arising from US operations in Haiti. An Army Judge Advocate will be appointed as a
Foreign Claims Commission to adjudicate US claims, where possible, and forward them to DA. Any
residual claims resulting from US operations should be addressed through the SJA, USFORHAITI, to the
Chief, Foreign Claims Branch, US 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 US members of
the UNMIH harmless from all claims arising from acts or omissions committed by US personnel serving with
the UNMIH. Commanding officers of US 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 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, US 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 US 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. US
personnel should forward requests for asylum in the US by immediate message to CINCUSACOM and
refer applicant to the US 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 US

6-23
 personnel of the UNMIH. US 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 US
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 US 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 US 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 US 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 US nationals should be forwarded to an appropriate
investigative service after consultation with the SJA, JTF USFORHAITI. Allegations against non-US
persons will be forwarded to the UNMIH Special Representative for proper disposition. Completed reports
of investigation that involve US 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 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 US 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 US personnel are involved as either victims or perpetrators, or

6-24
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 OPREP's, 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 ref's (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) Ref's (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 US support to US forces, even when they
are assigned a UN mission. UN operational requirements, even those involving US personnel, should be
supported under the authority discussed below. However, logistics support for US forces which is above
and beyond the capacity of UN logistics operations, and determined by the command to be essential to the
sustainment of US forces, is authorized under Article II of the US Constitution and 22 USC 2241.

(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) US 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
USC 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 President's
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, US Standing ROE (SROE) are in effect. US 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 US law and policy. Any modifications to the UNMIH ROE which will effect US 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 US forces in Haiti.

j. (U) Component and Supporting Commanders' and Staff Responsibilities: Subordinate

component commanders will:

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 (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:

(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 US 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 US 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) US 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 US-specific requirements will be obtained in
accordance with applicable US 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 US
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 US 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 US or a US 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 US 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

6-26
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
non-governmental organizations (NGO's) 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.

6-27
 CHAPTER 7
INTELLIGENCE LAW ASPECTS OF OPERATIONS

Introduction. Intelligence is information. This information is essential to a commander in conducting

operations and in accomplishing his mission. Intelligence over the years has become an absolute force multiplier.
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. The operational lawyer has an essential role in two general areas: operational
development and oversight.

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 USC 401.

2. The Intelligence Oversight Act of 1980 50 USC 413.

3. Executive Order 12333, US 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 itself is headed currently by the Director of Central Intelligence (DCI). The DCI is also the head of the
Central Intelligence Agency (CIA). He is the President's principle legal advisor in all foreign and domestic
intelligence matters. 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 US Army Intelligence
and Security Command and its major subordinate units including the various military intelligence brigades located
throughout the world. The chart at page 7-5 depicts the intelligence community of the United States.

Operational Issues. Intelligence law aspects of operations exist in all operations. It is imperative that
the operational lawyer consider them when planning and reviewing both operations in general and intelligence
operations in particular.

1. Intelligence collection against US persons. The matrix at page 7-6 depicts the legal analysis for an
operation which potentially involves the collection of intelligence of US persons by an intelligence organization.
Overseas or domestically, the operational lawyer must understand:

a. Intelligence units cannot collect intelligence against US persons without a proper collectable
category of information, by the least intrusive collection means, and with the appropriate authority. The more
intrusive the collection technique, the higher one must go to get permission to collect, to include the Attorney
General and a Foreign Intelligence Surveillance Court.

b. The term "US person" also encompasses corporations, private associations, as well as
resident aliens. Note, there is a presumption that if the person being collected against is in the United States that
person is a US person operationally. The contrary is true overseas, the presumption being the person being
collected against is not a US person.

7-1
 c. The intelligence agency responsible for collection of intelligence against US persons
domestically is the Federal Bureau of Investigation, overseas it is the CIA. This does not mean that only those
two agencies can conduct intelligence collection against US persons, it means that other agencies must coordinate
their collection operations with those agencies. This coordination requirement is critical.

d. Note, only those intelligence units that have the mission to collect intelligence against US
persons can actually do so, to include the retention of that intelligence. Intelligence units, among others, can
receive such intelligence passively and pass it on to the appropriate intelligence unit that does have the mission.

e. AR 381-10, US Army Intelligence Activities, is the Army's implementing regulation for EO

12333, the governing regulation in this area of intelligence law. In AR 381-10 are nine procedures which lay out
the various collection techniques authorized for the appropriate intelligence units to collect against US persons.

f. Note, also, if the person is not a US person the rules become less stringent and the approving
authority is at a much lower level. Coordination of any intelligence operation is
still essential!

g. Be aware that there is a restriction letter from DIA which further restricts using certain US
persons as intelligence gatherers.

2. 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. When the operational lawyer is reviewing a counterintelligence operation two issues are
important:

(1) Jurisdiction over the person: Does the counterintelligence unit have jurisdiction over
the person who is the subject of the investigation? In the United States this jurisdiction is limited to on post
offenses committed by active duty personnel or reservists on active duty. Overseas, jurisdiction over the person
expands to include family members, contractors and their families, US civilian employees and their families, and
certain local national employees. Note, look to the local Status of Forces Agreement (SOFA) for variations on this
jurisdiction.

(2) Jurisdiction over the crime: The counterintelligence operation is limited to

investigating treason, espionage and sabotage. Espionage is the primary crime. Other crimes are: Losing
Defense Information (18 USC 793 f); Unlawful retention of National Defense Information (18 USC 793 d);
Disclosure of Classified Information (18 USC 798 a), among others.

b. As in any intelligence operation, coordination with the appropriate agency is essential. In

counterintelligence, coordinate with the FBI, and in any prosecution, the Office of the Staff Judge Advocate should
coordinate with the local US Attorney, pursuant to the DoD/DoJ agreement of 5 Apr 1979 to get a release of their
primary jurisdiction over the offenses.

3. (U)Counterintelligence Force Protection Source Operations: A critical force protection tool

available to any deploying commander overseas. The regulation is classified, AR 381-172 (S). 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.

7-2
 4. Foreign Intelligence Surveillance (50 USC 1801 et seq): Post-Watergate distrust of the intelligence
community and the incredible revelations of abuses by the various intelligence services, particularly in the realm of
electronic surveillance, led to the creation of the Foreign Intelligence Surveillance Act (FISA).

a. The FISA authorizes the Attorney General to approve applications for warrants to conduct
electronic surveillance within the US for the purposes of foreign intelligence.

b. The coverage of the FISA concerns the following:

(1) Intentional collection against US persons in the US.

(2) Wiretaps in the US (against anyone).

(3) Collection of private US radio communications.

(4) Other invasions of privacy in the US (e.g. bugs, beepers, or hidden video cameras).

c. The targets contemplated by the FISA are foreign governments and factions, international
terrorist groups, foreign political organizations and corporations and/or agents of those foreign powers.

d. The Foreign Intelligence Surveillance Court (FISC) is set up to review applications to conduct
these operations from the Attorney General. There are 7 federal district court judges appointed by the Chief
Justice of the United States to sit on the FISC.

5. (U)Cover and Cover Support (AR 381-102) (S). An operational lawyer should become familiar with
the basics of cover. Cover severs the operator from the true purpose of the operation and/or the fact that the
operator is associated with the US government. There are four types of cover: natural, artificial, official and
nonofficial. Considerations in the development of a cover plan are that the cover should be logical and normal for
the operator, the operator must be able to live and fit the cover and the cover should be backstopped (a
mechanism to defeat inquiries as to that cover). Remember you can't make a silk purse out of a sow's ear!

Support Issues Concerning Intelligence Operations: The rules don't change regarding the support of
intelligence operations. Monies 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).

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 US persons. An operational
lawyer 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 USC 413) and AR 381-10,
Procedure 15 provide the proper regulatory guidance regarding intelligence oversight. When reviewing intelligence
operations as they relate generally to, and impact on, US persons see the chart at page 7-6.

7-3
References:

1. National Security Act of 1947, 50 U.S.C. 401.

2. Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1801.
3. Classified Information Procedures Act of 1980, 18 U.S.C. app.
4. Title V of the National Security Act of 1947, 50 U.S.C. 413.
5. Executive Order 12333, United States Intelligence Activities, December 4, 1981,
46 F.R. 59941.
6. Executive Order 12863, President's Foreign Intelligence Advisory Board,
September 13, 1993, 58 F.R. 48441.
7. DoD Dir 5240.1 DoD Intelligence Activities, 25 Apr 1988 and 5240.1-R,
Procedures Governing the Activities of DOD Intelligence Components
that Affect United States Persons, 7 Dec 1982.
8. AR 381-10, US Army Intelligence Activities, 1 Jul 84. See also, AFR 200-19,
Conduct of Intelligence Activities, Oct 93; AFR 123-3 Intelligence
Oversight, Feb 85; SECNAVINST 3829.3D and 3820.3C.
9. AR 381-20, US Army Counterintelligence Activities (DRAFT), 1991; See also US
Army Counterintelligence Activities, 26 Sep 86, AFR 124-11 Air Force
Counterintelligence, Oct 80; SECNAVINST 3850.2.
10. (S) AR 381-102, Intelligence Operational Support Activities (U).
11. (C) AR 381-141, Provisions for Administration, Supervision, Control and Use of
Intelligence Contingency Funds (ICF) (U); See also, AFR 200-4, July 86.
12. (C) AR 381-143, Intelligence Property (U).
13. (C) AR 715-30, Secured Environment Contracting (U); See also, AFR 70-7
Contingency Operations Contracting Support Program, June 92.
14. (S) AR 381-172 CI Force Protection Ops (U).
15. USAINSCOM Pamphlet 27-1, Intelligence Law Handbook, 31 Jan 86.
16. Military Rules of Evidence, Rule 505.
17. Cases and Materials on Intelligence Law, TJAGSA, 1997.

7-4
 AR 381-10
US ARMY
INTELLIGENCE ACTIVITIES
Y Y Y Y
E E E E N
S S S US S AUTHORIZED
O
MISSION AUTHORITY NECESSARY PERSON CATEGORY
? ? ? ? ?
STOP

NO NO NO
NO YES
STOP STOP STOP
LEAST
YES INTRUSIVE
Y MEANS?
E Y Y
S AUTHORITY E STANDARD E SPECIAL
S S COLLECTION
GO ? ?
TECHNIQUE? NO
YES
NO NO NO
REVISE
STOP STOP GO

7-5
 CHAPTER 8
RULES OF ENGAGEMENT

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, 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: nonlegal issues, such as political
objectives and military mission limitations, also play an essential role in the construct 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 commander’s rules - and 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 the JCS Standing ROE, and review
the judge advocates role in the ROE process, while providing unclassified extracts from the JCS SROE
and specific operations in order to highlight critical issues and demonstrate effective implementation of
ROE.

OVERVIEW

Definition of ROE. JCS 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.

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 Law
transition from peacetime to combat operations (war);
and (3) Provide a mechanism to facilitate planning.

Rightly characterized as the “tether between the NCA

and the soldier,” ROE provide a framework which
encompasses national policy goals, mission
requirements, and the rule of law. ROE
Political Purposes: ROE ensure that national policy
and objectives are reflected in the action of commanders Mission Policy
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

8-1
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 - and particularly
how it is affected by media coverage of a specific operation, the effect of host country law, and the status
of agreements with the US (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 US actions do not trigger undesired escalation -
i.e., pushing a potential opponent into a “self-defense” response.

ROE may regulate the commander’s capability to influence an action through his authority to either
grant or withhold the use of particular weapons systems by vesting or restricting authority to use certain
types of weapons or tactics. For example, in Haiti, authority to use riot-control agents (RCAs) was
delegated to specified brigade commanders for use in a limited set of circumstances.

ROE may also reemphasize the scope of a mission by their implementation; 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 commander’s 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. IFOR operations were based upon UNSCR 1031, which relied heavily upon the Dayton Accords
(the agreement which ended the hostilities 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.

JCS STANDING RULES OF ENGAGEMENT

CJCSI 3121.01 - Standing Rules of Engagement for US Forces (SROE) went into effect on 1 October
1994 and provides implementation guidance on the inherent right of self defense and the application of
force for mission accomplishment. The result of an all service review and revision of the JCS Peacetime
Rules of Engagement (PROE), the SROE applies to all US forces - with limited exceptions for Multi-
National Force (MNF), Civil Disturbance, and disaster relief operations (see below) - and is designed to
provide a common template for development and implementation of ROE for the full range of operations
from peace to war. The SROE is divided into three principle sections or enclosures:

ENCLOSURE A (Standing Rules of Engagement): This enclosure details the general purpose,
intent and scope of the SROE, emphasizing the commanders’ right - and obligation - to use force in self-
defense. Critical principles, such as unit, national, and collective self-defense, hostile acts and intent, and
the determination to declare forces hostile are addressed as foundational elements of all ROE.
Appendices provide specific guidance with respect to the scope of authority to use force, delegation of
authority to declare forces hostile and exercise the right of national self-defense, application of the principle
of proportionality, and address special considerations associated with peacekeeping, command, control
and information warfare (C2I), counterdrug, and non-combatant evacuation operations. In addition, force
specific (i.e., seaborne, land, and air) appendices detail indicators of hostile intent, geographic limitations
of authority, and other concerns that are particular to operations within the defined force structure. [NOTE:
The unclassified portion of the SROE - Enclosure A without its appendices - is reprinted as Appendix A to
this Chapter].

ENCLOSURE B (Supplemental Measures): Supplemental measures found in this enclosure enable

the 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 may be delegated to
8-2
subordinate commanders. It is important to remember that the SROE (found at enclosure A) are
fundamentally permissive in nature, allowing a commander to use any weapon or tactic available and
employ reasonable force to accomplish his mission. Supplemental measures provided in this enclosure
are intended to provide conceptual guidance and act as a planning tool. Inclusion in the SROE
supplemental list does not suggest that the commander needs to seek authority to use any of the listed
items - that only occurs when incorporated into ROE issued for a specific operation. SUPPLEMENTAL
ROE RELATE TO MISSION ACCOMPLISHMENT, NOT TO SELF-DEFENSE, AND NEVER LIMIT THE
COMMANDER’s INHERENT RIGHT AND OBLIGATION OF SELF-DEFENSE.

ENCLOSURE C (Compendium and Combatant Commanders’ Special ROE): Enclosure C

contains a list of effective CJCS directives providing ROE guidance and Area of Responsibility specific
rules of engagement submitted by the Combatant Commanders. Those special ROE address specific
strategic and political sensitivities of the Combatant Commander’s AOR and must be approved by JCS;
they are included in the SROE as a means to assist commanders and units participating in operations
outside their assigned AORS.

Key Definitions / Issues:

Self Defense: The SROE do not limit a commander’s inherent authority and obligation to use all
necessary means available and to take all appropriate action in self-defense of the commander’s unit
and other US forces in the vicinity.

Unit Self-Defense: The act of defending elements or personnel of a defined unit - as well as US
forces in the vicinity thereof - against a hostile act or intent. As applied to the soldier on the ground, unit
self-defense includes the concept of individual self-defense.

National Self-Defense: The act of defending the US; US forces; and in certain circumstances, US
citizens and their property, US commercial assets, other designated non-US forces, foreign nationals and
their property, from a hostile act or hostile intent. As a subset of National Self-Defense, the act of
defending other designated non-US citizens, forces, property, and interests is referred to as collective
self-defense. Authority to exercise National Self-Defense rests with the NCA, but may be delegated under
specified circumstances; however, only the NCA may authorize the exercise of collective self-defense.

Defense of Mission & Self-Defense: The SROE distinguish between the right and obligation of self-
defense - which is non-derogable - and 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 the commander’s right and obligation of self-defense.

Hostile Act: An attack or other use of force by a foreign force or terrorist unit against the US, US
forces, or other designated persons and property, or a use of force intended to preclude or impede the
mission of US 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 US,
US 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 hostile, US units may engage 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.

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 Promulgation of ROE: Mission ROE are promulgated at Appendix 8, Annex C of Joint Operation
Planning and Execution System (JOPES) formatted Operational Orders and via formatted messages as
found at Appendix E to Enclosure B of the SROE.
ROE DEVELOPMENT AND TRAINING

Judge advocates at all levels (combatant commands as well as at corps, fleet, and wing levels) will
play a critical role in drafting ROE for specific operations. At the operational and tactical level, they must
be actively involved in training and implementation of those ROE. In each instance, judge advocates must
be sensitive to their role as both a subject matter expert in the field of law and a staff officer; ROE are
more than just legal parameters - they are a control measure for the operational commander to use in the
execution of his mission, providing tactical, strategic and policy related guidance to his forces. As a result,
development of ROE requires a symbiotic relationship between the commander, his operations planning
staff, and the judge advocate Working together, they must formulate and implement ROE consistent with
the relevant mission statement and orders, potential threats, unit capabilities, applicable international
agreements, treaties and practice. They must also be mindful of the fact that the mission - ROE nexus is
not a static process; once on the ground, presumptions and planning give way to changing priorities and
modified goals; the failure to continuously review ROE in light of mission changes inevitably leads to
“mission -ROE disconnect” and potentially fatal results - as evidenced in recent operations in Beirut
(Marine BLT HQ), the Arabian Gulf (USS STARK, USS VINCENNES) and Haiti (Port-au-Prince riots).

DRAFTING CONSIDERATIONS

Consider the Purpose of ROE. ROE govern the use of force in both self-defense and mission
accomplishment. In developing ROE, the command/operations/JA working group should focus on the
underlying rationale for each rule and the overall effect of rules as implemented. The following analytical
framework is instructive in achieving that end:

What is my mission?
What is the NCA endeavoring to accomplish in this operation?
What is the threat?
What forces are available and what are their capabilities?
Are their any operational concerns unique to this mission (i.e., collateral damage or the
potential capture of U.S. personnel)?
What are my ROE sources?

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
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 commander's 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
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nature and should avoid excessively qualified language. ROE must be tailored to both the unit and mission
and must be applicable in the wide range of circumstances presented in the field. Well formulated ROE
anticipate the circumstances of an operation and provide unambiguous guidance to the soldier, sailor,
airman and Marine before he confronts a threat.
TRAINING AND IMPLEMENTATION TOOLS

Given the fact 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. However, the command/operations/JA team must provide a baseline of training to
their units before field exercises are useful. In the classroom, the critical concepts of self-defense,
necessity, and proportionality, which are found at Enclosure A of the SROE and apply to both combat and
peace operations, provide the foundation - and the 90% solution - for application of ROE in the field. Two
specific tools for classroom training, “RAMP” and the “ROE Triad” are addressed below as examples of
classroom tools that develop a fundamental thought process that may be carried into the field as
internalized principles of conduct. Pocket Cards - a widely employed system of ROE extracts - serve two
purposes: first, to provide the soldier, sailor, airman, or Marine with an unclassified distillation of mission
ROE and second, as a tool to remind him of the critical concepts of the ROE he is to employ.

RAMP

RAMP - a “keyword”, mnemonic device - provides the soldier with a means to retrieve essential
ROE principles from memory under conditions of stress:

Return fire with aimed fire. Return force
with force. You always have the right to repel
hostile acts with necessary force.
Anticipate attack. Use force if, but only if, you
see clear indicators of hostile intent.
Measure the amount of force that you use, if
time and circumstances permit. Use only the
amount of force necessary to protect lives and
accomplish the mission.
Protect with deadly force only human life
and property designated by your commander.
Stop short of deadly force when protecting other
property.
The focus of RAMP is on the universal and
critical principles of use of force and self-
defense: necessity, in the form of either a
hostile act or demonstration of hostile intent,
and proportionality, force measured to
respond to the circumstances at hand.
Inculcated through training, RAMP is a single
scheme which conveys the clear mandate to
take defensive action in response to hostile
activities, overlays the substantive
requirement for proportionality, directs the
soldier towards a broader application of force
when specifically directed to do so. Once
internalized, RAMP principles guide conduct
in either combat or peace operations, while
giving the soldier, sailor, airman and Marine
confidence in the fact that he can accomplish
his mission within the boundaries of the law,
policy, and operational directives.

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 THE ROE TRIAD

The “Triad” also serves as a means to retrieve essential ROE principles from memory under
conditions of stress, but from a spatial, rather than linear perspective.

Self-Defense

ROE “Triad”
Scope of
Response Hostiles

Grounded upon the theory that object(s) of self-defense, necessity (hostile action or status), and
proportionality (incremented response) define the boundaries of authorized uses of force, those concepts
are treated as expanding or contracting fields of action, the intersection of which is defined by ROE.

The first field of action addresses the scope of self-

Collective defense. At its narrowest delimitation is unit self-
defense - the inherent right and obligation of the
National commander to protect his unit and all U.S. forces in the
vicinity. Authorization to exercise national self-defense
Unit
SELF - extends the use of force to include protection of the
DEFENSE U.S. (geographically), U.S. forces, U.S. citizens, and
designated commercial interests or property. Although
characterized as a subset of national self-defense in
the SROE, authorization to exercise collective self-
defense further expands the field, which now includes
specifically designated foreign forces, citizens, and
commercial interests and property. Note that in
expanding from Unit to National and then to Collective
Self-Defense, those “targets” protected in the smaller
field continue to be protected in the expanded field of
action.

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 Force
The second field of action - hostiles - describes the
field of activity which corresponds with the legal
concept of “necessity.” Any attack or use of force Intent
against the U.S., U.S. forces, or other “objects of self-
defense” is characterized as a hostile act; that term
Act
defines a limited field of response, i.e., those forces or HOSTILE
units that have actually attacked. The field of hostiles
expands when the principle of hostile intent is applied,
as it includes forces or units demonstrating an intent to
attack, as well as those which have already done so.
When the field of action is defined by hostile force,
authority to use force is based upon status - positive
identification as a component of a designated unit or
force - and does not require (but includes) hostile
intent or action.

The third and final field of action addresses the

scope of response. Reflecting the mandate that use of
Warn force be a measure of last resort, this field of action is
at its broadest application when non-destructive actions
Respond are employed: issue of verbal or radio warnings,
Disable responding to or avoiding the threat weapon, and then
RESPONSE transitioning to an attack to disable or destroy the
Destroy threat when such an action is the only prudent means
to terminate the confrontation. In a spatial sense, non-
destructive responses, such as warnings and
“electronic” or soft-kills (use of fire-control radar - as a
warning - or jamming) are first steps that do not
increase the risk of casualty in circumstances where
the actions of a putative “hostile” are not actually
threatening, but merely misinterpreted - and thus apply
to a wider range of circumstances than releasing
weapons with the intent to disable or destroy the
“hostile.” It should be noted and emphasized that while
this field represents incremental responses to potential
threats, the exercise of self-defense does not
require employment of each option before moving
on to the next - the scope of response is a matter
of judgment and discretion based upon the
circumstances at hand.

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 card - he 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, imperative format. Although such an approach - the classic “bullet” format - may not be possible in
every case, it should be used whenever feasible.
8-7
 Avoid qualified language. ROE are directives, advising subordinates of how the commander’s 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 possible - ultimately, 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 servicemember charged with executing the mission on
the ground - they are not an exercise in lawyering.

NOTE: Examples of ROE cards employed in various missions - from peacekeeping to combat - are
found at Appendix C of this chapter. These are not “go-byes”, but are intended to provide a frame of
reference for the command/operations/JA team as they develop similar tools for assigned operations.

SUGGESTED READINGS / REFERENCES

Mark S. Martins, MAJ, JA, USA, Rules of Engagement for Land Forces: A Matter of Training, Not
Lawyering, 143 Mil. L. Rev 1 (1994).

J. Ashley Roach, CAPT, JAGC, USN, Rules of Engagement, Naval War College Review 46-55, Jan-Feb
1983.

Guy Phillips, LCDR, CF, Rules of Engagement: A Primer, Army Lawyer, July 1993.

Appendix A

JCS STANDING ROE

ENCLOSURE A TO CJCSI 3121.01 (1 October 1994)

1. Purpose and Scope

a. The purpose of these SROE is to provide implementation guidance on the inherent

right obligation of self-defense and the application of force for mission accomplishment.
The SROE establish fundamental policies and procedures governing the actions to be
taken by US force commanders during all military operations, contingencies, or
prolonged conflicts. In order to provide uniform training and planning capabilities, this
document is authorized for distribution to commanders at levels to be used as
fundamental guidance for training and directing their forces.

b. Except as augmented by supplemental rules of engagement for specific

operations, missions, or projects, the policies and procedures established herein remain
in effect until rescinded.

c. US forces operating with multinational forces:

(1) US forces assigned to the operational control (OPCON) of a multinational

force will follow the ROE of the multinational force unless otherwise directed by the
National Command Authorities (NCA). US forces will be assigned and remain OPCON
to a multinational force only if the combatant commander and higher authority
determine that the ROE for that multinational force are consistent with the policy
guidance on unit self-defense and with the rules for individual self-defense contained in
this document.

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 (2) When US forces, under US OPC0N, operate in conjunction with a multinational
force, reasonable efforts will be made to effect common ROE. If such ROE cannot
be established, US forces will exercise the right and obligation of self-defense
contained in this document while seeking guidance from the appropriate combatant
command. To avoid mutual interference, the multinational forces will be informed prior
to US participation in the operation of the US forces' intentions to operate under these
SROE and to exercise unit self-defense. For additional guidance concerning peace
operations, see Appendix A to Enclosure A.

3) Participation in multinational operations may be complicated by varying national

obligations derived from international agreements; i.e., other members in a coalition
may not be signatories to treaties that bind the United States, or they may be bound
by treaties to which the United States is not a party. US forces still remain bound by
US treaty obligations even if the other members in a coalition are not signatories to a
treaty and need not adhere to its terms.

d. Commanders of US forces subject to international agreements governing their

presence in foreign countries (e.g., Status of Forces Agreements) are not relieved of
the inherent authority and obligation to use all necessary means available and to take all
appropriate action for unit self-defense.

e. US forces in support of operations not under operational or tactical control of a

combatant commander or performing missions under direct control of the NCA, Military
Departments, or other US government departments/agencies (i.e., marine security
guards, certain special security forces) will operate under use-of-force or ROE
promulgated by those departments or agencies.

f. US Coast Guard (USCG) units and units under USCG OPCON conducting law
enforcement operations, and USCG personnel using their law enforcement authority, will
follow the use-of-force policy issued by the Commandant, USCG. Nothing in the USCG
use-of-force policy negates a commander's inherent authority and obligation to use all
necessary means available and to take all appropriate action for unit self-defense in
accordance with these SROE.

g. The guidance in this document does not cover US forces deployed to assist
federal and local authorities during times of civil disturbance within the territorial
jurisdiction of any state, the District of Columbia, Commonwealths of Puerto Rico and
the Northern Marianas, US possessions, and US territories. Forces in these situations
will follow use-of-force policy found in DOD Civil Disturbance Plan, "Garden Plot"
(Appendix 1 to Annex C of Garden Plot).

h. US forces deployed to assist foreign, federal, and local authorities in disaster

assistance missions, such as earthquakes and hurricanes, will follow use-of-force
guidelines as set forth in the mission's execute order and subsequent orders.

I. US forces will always comply with the Law of Armed Conflict. However, not all
situations involving the use of force are armed conflicts under international law. Those
approving operational rules of engagement must determine if the internationally
recognized Law of Armed Conflict applies. In those circumstances when armed conflict,
under international law, does not exist, Law of Armed Conflict principles may
nevertheless be applied as a matter of national policy. If armed conflict occurs, the
actions at US forces will be governed by both the Law of Armed Conflict and rules of
engagement.

2. Policy

a. THESE RULES DO NOT LIMIT A COMMANDER'S lNHERENT AUTHORITY

AND OBLIGATION TO USE ALL NECESSARY MEANS AVAILABLE AND TO TAKE

8-9
 ALL APPROPRIATE ACTION IN SELF-DEFENSE OF THE COMMANDER’S UNIT AND
OTHER U.S. FORCES IN THE VICINITY.

b. US national security policy serves to protect the United States, US forces, and, in
certain circumstances, US citizens and their property, US commercial assets, and other
designated non-US forces, foreign nationals, and their property from hostile attack. US
national security policy is guided, in part, by the need to maintain a stable international
environment compatible with US national security interests. In addition, US national
security interests guide our global objectives of deterring armed attack against the
United States across the range of military operations, defeating an attack should
deterrence fail, and preventing or neutralizing hostile efforts to intimidate or coerce the
United States by the threat or use of armed force or terrorist actions. Deterrence
requires clear and evident capability and resolve to fight at any level of conflict and, if
necessary, to increase deterrent force capabilities and posture deliberately so that any
potential aggressor will assess its own risks as unacceptable. US policy, should
deterrence fail, provides flexibility to respond to crises with options that:

(1) Are proportional to the provocation.

(2) Are designed to limit the scope and intensity of the conflict.

(3) Will discourage escalation.

(4) Will achieve political and military objectives

3. Intent. These SROE are intended to:

a. Provide general guidelines on self-defense and are applicable worldwide to all

echelons of command.

b. Provide guidance governing the use of force consistent with mission

accomplishment.

c. Be used in operations other than war, during transition from peacetime to armed
conflict or war, and during armed conflict in the absence of superseding guidance.

4. Combatant Commanders' ROE

a. Combatant commanders may augment these SROE as necessary to reflect

changing political and military policies, threats, and missions specific to their AOR.
When specific standing rules governing the use of force in a combatant commander's
AOR are required that are different from these SROE, they will be submitted to the
Chairman of the Joint Chiefs of Staff for NCA approval as necessary and promulgated
by the Joint Staff as an Annex to Enclosure C of these SROE.

b. Combatant commanders will distribute these SROE to subordinate commanders

and units for compliance. The mechanism for disseminating ROE supplemental
measures is set forth in Enclosure B.

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 action to defend that
commander's unit and other US forces in the vicinity from a hostile act or demonstrated
hostile intent. Neither these rules, nor the supplemental measures activated to augment
these rules, limit this inherent right and obligation. At all times, however, the
requirements of necessity and proportionality as amplified in these SROE will be the

8-10
basis for the judgment of the commander as to what constitutes an appropriate
response to a particular hostile act or demonstration of hostile intent.

b. National Self-Defense. National self-defense is the act of defending the United

States, US forces, and in certain circumstances, US citizens and their property, US
commercial assets, and other designated non-US forces, foreign nationals and their
property, from a hostile act or hostile intent. Once a force or terrorist unit is declared
hostile by appropriate authority exercising the right and obligation of national self-
defense (see paragraph 2 of Appendix A to Enclosure A), individual US units do not
need to observe a hostile act or determine hostile intent before engaging that force.

NOTE: Collective Self-Defense. Collective self-defense, as a subset of national self-

defense, is the act of defending other designated non-US forces, personnel and their
property from a hostile act or demonstration of hostile intent. Only the NCA may
authorize US forces to exercise collective self-defense.

c. Unit Self-Defense. Unit self-defense is the act of defending a particular unit of US

forces, including elements or personnel thereof, and other US forces in the vicinity,
against a hostile act or hostile intent. The need to exercise unit self-defense may arise
in many situations such as localized low-level conflicts, humanitarian efforts, peace
enforcement actions, terrorist response, or prolonged engagements. Individual self-
defense is a subset of unit self-defense: see the glossary for a definition of individual
self-defense.

d. Elements of Self-Defense. The application of armed force in self-defense

requires the following two elements:

(1) Necessity. A hostile act occurs or a force or terrorist unit exhibits hostile
intent.

(2) Proportionality. The force used must be reasonable in intensity, duration, and
magnitude, based on all facts known to the commander at the time, to decisively
counter the hostile act or hostile intent and to ensure the continued safety of US
forces.

e. Hostile Act. A hostile act is an attack or other use of force by a foreign force or
terrorist unit (organization or individual) against the United States, US forces, and in
certain circumstance, US citizens, their property, US commercial assets, and other
designated non-US forces, foreign nationals and their property. It is also force used
directly to preclude or impede the mission and/or duties of US forces, including the
recovery of US personnel and US Government property. When a hostile act is in
progress, the right exists to use proportional force, including armed force, in self-
defense by all necessary means available to deter or neutralize the potential attacker
or, if necessary, to destroy the threat. (See definitions in the Glossary for amplification.)

f. Hostile Intent. Hostile intent is the threat of imminent use of force by a foreign
force or terrorist unit (organization or individual) against the United States, US forces,
and in certain circumstances, US citizens, their property, US commercial assets, or
other designated non-US forces, foreign nationals and their property. When hostile
intent is present, the right exists to use proportional force, including armed force, in self-
defense by all necessary means available to deter or neutralize the potential attacker
or, if necessary, to destroy the threat. (See definitions in the Glossary for amplification.)

g. Hostile Force. Any force or terrorist unit (civilian, paramilitary, or military), with or
without national designation, that has committed a hostile act, demonstrated hostile
intent, or has been declared hostile.

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6. Declaring Force Hostile. Once a force is declared hostile by appropriate authority, US
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 declaring a force hostile is a matter of the utmost importance demanding considerable
judgment of command. All available intelligence, the status of international relationships,
the requirements of international law, the possible need for a political decision, and the
potential consequences for the United States must be carefully weighed. Exercising the
right and obligation of national self-defense by competent authority is in addition to and
does not supplant the right and obligation to exercise unit self-defense. The authority to
declare a force hostile is limited as amplified in Appendix A to Enclosure A.

7. Authority to Exercise Self-Defense

a. National Self-Defense. The authority to exercise national self-defense is outlined

in Appendix A to Enclosure A.

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 action to defend the unit,
including elements and personnel thereof, or other US forces in the vicinity, against a
hostile act or hostile intent. In defending against a hostile act or hostile intent under
these SROE, unit commanders should use only that degree of force necessary to
decisively counter the hostile intent and to ensure the continued safety of US forces.

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 unit or national
self-defense:

(1) Attempt to Control Without the Use of Force. The use of force is normally a
measure of last resort. When time and circumstances permit, the potentially hostile
force should be warned and given the opportunity to withdraw or cease threatening
actions. (See Appendix A to Enclosure A for amplification.)

(2) Use Proportional Force 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 at or hostile intent
and to ensure the continued safety of US 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 which a hostile act or hostile
intent can be prevented or terminated. When such conditions exist, engagement is
authorized only until the hostile force no longer poses an imminent threat.

b. Immediate Pursuit of Hostile Foreign Forces. In self-defense, US forces may

pursue and engage a hostile force that has committed a hostile act or demonstrated
hostile intent and that remains an imminent threat. (See Appendix A to Enclosure A for
amplification.)

c. Defending US Citizens, Property, and Designated Foreign Nationals

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 (1) Within a Foreign Nation's US Recognized Territory or Territorial Airspace. A
foreign nation has the principal responsibility for defending US citizens and property
within these areas. (See Appendix A to Enclosure A for amplification.)

(2) At Sea. Detailed guidance is contained in Annex A to Appendix B of this

enclosure.

(3) In International Airspace. Protecting civil aircraft in international airspace os

principally the responsibility of the nation of registry. Guidance for certain cases of
actual or suspected hijacking of airborne US or foreign civil aircraft is contained in
MCM-102-92, 24 July 1992, "Hijacking of Civil Aircraft."

(4) Terrorism. Terrorist attacks are usually undertaken by civilian or paramilitary

organizations, or by individuals under circumstances in which a determination of hostile
intent may be difficult. The definitions of hostile act and hostile intent set forth above
will be used in situations where terrorist attacks are likely. The term "hostile force"
includes terrorist units when used in this document. When circumstances and
intelligence dictate, supplemental ROE will be used to meet this special threat.

(5) Piracy. Piracy is defined as an illegal act of violence, depredation (i.e.,

plundering, robbing, or pillaging), or detention in or over international waters
committed for private ends by the crew or passengers of a private ship or aircraft
against another ship or aircraft or against persons or property on board such ship or
aircraft. US warships and aircraft have an obligation to repress piracy on or over
international waters directed against the 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 nation
sovereignty to continue pursuit. Where circumstances permit, commanders will seek
guidance from higher authority before using armed force to repress an act of piracy.

d. Operations Within or in the Vicinity of Hostile Fire or Combat Zones Not Involving
the United States

(1) US 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 demonstrates hostile intent against US

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 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 national 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 on
board the assisting ship or aircraft, persons assisted will not be surrendered to
foreign authority unless directed by the NCA.
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 (4) Further guidance for the exercise of the right of assistance entry is contained
in CJCS Instruction 2410.01, 20 July 1993, "Guidance for the Exercise of Right of
Assistance Entry."

Appendix B

SAMPLE ROE CARDS

Operation PROVIDE COMFORT

Operation PROVIDE COMFORT

COMMANDER’s GUIDANCE ON
USE OF FORCE
(As of 1 May 1991)

1. This is a humanitarian assistance operation. The multinational forces are not at war.
2. You have the right to use force in self-defense. Nothing in this guidance negates a
commander’s obligation to take all necessary actions for his unit’s self-defense.
3. CTF PROVIDE COMFORT forces are authorized to use force in self-defense when
responding to attacks or threats of imminent attack against the multinational forces,
humanitarian relief personnel and refugees.
4. Use only the minimum force necessary and proportional to eliminate the threat and
control the situation.
5. Deadly force should only be used to protect lives in response to a hostile act or
demonstration of hostile intent.

GUIDELINES FOR DISARMING AND DETAINING WITHIN SECURITY AREAS

You will disarm and detain any Iraqi soldier or member of a paramilitary security force, or
any civlian policeman without proper authorization, within a designated security area.
Immediately contact the Military Coordination Center through your chain of command so that
the Iraqi Liaison Officer may respond.

USE THE MINIMUM FORCE NECESSARY TO DISARM AND DETAIN, UP TO AND

INCLUDING THE USE OF DEADLY FORCE IF HOSTILE INTENT IS EXHIBITED OR A
HOSTILE ACT COMMITTED.

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Operation CONSTANT GUARD (NATO)

OPERATION CONSTANT GUARD OPENING FIRE

COMMANDERS GUIDE ON USE OF FORCE
MISSION
Your mission is to implement the Peace Plan.
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.
1) You may open fire only if you, friendly forces, persons or
property under your protection are threatened with deadly
force. This means:
A. You may open fire against an individual who fires
or aims his weapon at you, firendly forces, or persons 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 or property under your
protection.
C. You may open fire against an individual who
deliberately drives a vehicle at you, friendly forces, persons
with designated special status, or poroperty designated
special status.
2) You may also fire against an individual who attempts to take
possession of friendly force weapons, ammunition, or
protected property, and there is no other way of avoiding it.
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.

CHALLENGE AND WARNING SHOTS MINIMUM FORCE

1) If the situation permits, issue a challenge: 1) If you have to open fire, you must:
IN ENGLISH “SFOR, STOP I WILL FIRE!” fire only aimed shots, and
OR IN SERBO-CROAT: “SFOR, STANI ILI PUCAM!” fire no more rounds than necessary, and
pronounced as: “SFOR, STANI ILI PUT SAM!” take all reasonable efforts not to unnecessarily destroy
property and stop firing as soon as the situation
2) If the person fails to halt, you may be authorized by the PERMITS.
senior soldier present or by standing orders to fire a warning 2) You may not intentionally attack civilians or protperty that is
shot. exclusively civilian or religious in character, except if the
property is being used for military purposes and engagement
NATO UNCLASSIFIED is authorized by your commander.
NATO UNCLASSIFIED

8-15
UNMIH Peacekeeping (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 greivous
bodily harm of innocent civlians 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.)
IFOR Support Operations - HUNGARY
ROE CARD FOR HUNGARY
1. The Mission
- The US is not at war with anyone.
- You are here at the invitation of the host nation.
- Your mission is to assist in providing logistical support to
the Implementation Force (IFOR).
2. Right of Self-Defense
- You always have the right and duty to defend yourself.
- If anyone commits a hostile act against you (an attack
which could cause death or serious injury) or is about to attack
you, you may use all means necessary to defend yourself,
consistent with the principles set forth below.
- You may also use force to defend other US Forces.
3. Attempt to Control the Situation Without Use of Force
- Use force only as a last resort.
- If circumstances permit, attempt to warn first.
8-16
8. Search, apprehension, and disarmament are atuhoirzed
when acting in self-defense or to enforce the rules above.
Persons apprehended will be deteined 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.
- sho or what was fired on.
- the weapons fired.
- the apparent results of the firing.
3. Report avove information and current situation throught the
UN chain of command to the Force Commander as soon as
possible.
4. Use the Minimum Force Necessary to Defend Yourself
and Others
- If circumstances permit, attempt to use non-deadly force
before resorting to deadly force.
5. If You Have to Use Force:
- Fire only aimed shots;
- Fire no more rounds than necessary;
- Try not to injury anyone other than your target;
- Try not to unnecessarily destroy property;
- Stop firing as soon as the situation permits.
- Care for the sick and wounded.
6. Respect Private Property at All Times
- Do not take anything that does not belong to you.
7. Immediately Report Any Incidents or Violations of the
Law of Land Warfare.
8. Show Courtesy in Executing Your Duties.
- Learn local, social, and religious customs and respect them
at all times.
 CHAPTER 9
INTERNATIONAL LAW CONSIDERATIONS IN THE ACQUISITION OF SUPPLIES
AND SERVICESDURING 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.

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.

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, T.V., 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 noncontractual claim for compensation. 25 Jan. 90 memo
from Deputy General Counsel (Acquisition) to ASA (RDA) (two categories of claims set forth). The first

9-1
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 gov't 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). See infra, The Article 2 Threshold, ch. 13, at p. 3-17; and Host
Nation Law, ch. 13, at 3-13 The Host Nation may agree to provide for some of the needs of U.S. forces
which 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).

U.S. Rights and Obligations Under International Law Relating to Battlefield Procurement of
Services. The law of war also regulates use of 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 which 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
are considered to be protected persons. 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 which 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).

9-2
 PROPERTY CONTROL RECORD BOOK

FOR USE IN DOCUMENTING THE

SEIZURE OF PROPERTY ACQUIRED BY
MILITARY NECESITY

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.

9-3
 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 medicl 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 US 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.

9-4
 Seizure Record

Number Owner’s Name Date

9-5
 RECEIPT

This is a receipt for your property
that has been used or taken by the
Armed Forces of the United States
of America. The unit commander
determined that this property was
essential to ensure the success of
the mission or to protect the safety
of the soldiers of his command. This
receipt may be used to redeem your
property or document any claim.
Ceci est une recette pour votre
propriete qui etait utilisee’ ou prise
par l’Armee des ‘Etats-Unis. Le
commandant a determine’ que cette
propriete’ a e’te’ ne’cessaire a’assurer le
suce’s de la mission ou a’ proteger la
se’curite’ des soldats de son commandement.
Cette re’ception peut etre utilise pour la
remboursement pour votre propie’te’
Ou pour documenter quel que re’clamation

I acknowledge receipt of this document. J’accuse re’ception du document.

Name___________________________ Nom:______________________________

Address_________________________ Adres:_____________________________

DOCUMENT NO. 000221

PROPERTY CONTROL BOOK

COUNTRY_____________________________________________________________
GRID________________DATE ____________________________________________

1. Owner’s name________________________________________________________
2. Owner’s Address______________________________________________________
______________________________________________________________________
3. Reason for military necessity____________________________________________
______________________________________________________________________
______________________________________________________________________
4. Description of property_________________________________________________
______________________________________________________________________
5. Condition of property___________________________________________________
6. Remarks____________________________________________________________
______________________________________________________________________
______________________________________________________________________

Signature_______________________________
Printed name____________________________
Rank___________ SSN __________________
Unit___________________________________

9-6
 CHAPTER 10
CLAIMS

NONCOMBAT CLAIMS

Most deployments, mobilizations, 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 damages, losses, and injuries are unavoidable, however, and claims
will definitely result. Claimants will include local residents, host nation governments, allied forces, and even U.S.
soldiers. To ensure friendly relations with the local population and maintain the morale of our own troops, deploying
JAs must be prepared to investigate, adjudicate, and settle claims correctly and promptly.

Effective deployment claims processing is important for three reasons. First, troop commanders will be focused
on their operational missions and should not be distracted by the demands of claimants, regardless of the
significance of such cases. JAs must be able to handle these matters for commanders. Second, deployed soldiers
will have claims of their own, and, as is the case in a garrison setting, such claims should be settled as quickly as
possible. Morale always suffers when soldiers’ meritorious claims linger unresolved. Finally, rapid payment of
legitimate claims filed by local nationals helps maintain positive relations with the local population, thereby enhancing
the ties between U.S. forces and the Host Nation (HN) that are essential to successful mission accomplishment.

Prevention Programs and Predeployment Planning. The initial step in any successful claims operation is to establish
a damage prevention program. Proactive damage prevention includes briefing soldiers 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. Unit claims officer briefings should focus on training such officers
how to conduct proper claims investigations. Claims avoidance, reporting, and investigation procedures must be
addressed long before the unit begins actual operations.

When preparing for overseas deployments, additional factors must be considered during predeployment planning.
There may be international agreements with the HN that will impact on the claims operation. Further, DoD assigns
single-service claims responsibility for designated overseas areas. Additionally, the U.S. must apply "local law" to
determine liability and damages under certain claims statutes; this can give rise to unique ethical and conceptual
challenges. An overseas location may also 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
1
process.

Deployment Location. When deployed in a foreign country, claims officers may be required to settle claims using
procedures set forth in agreements between the U.S. and the HN. These agreements can include provisions
2
mandating HN adjudication, reimbursement to the HN, or pro rata liability. Claims JAs should maintain a binder of
host nation laws and agreements pertaining to countries to which supported units may deploy. Information on other
3
countries should be obtained immediately upon notice of deployment to such locations.

An important factor in overseas tort claim processing is the designation of single-service claims responsibility.
Claims arising during deployments to countries over which the Department of the Army has single-service claims
responsibility will be settled by Army JAs; however, Army forces may well deploy to countries for which either the
Navy or Air Force is the responsible service. In this situation, JAs must be prepared to process claims under the
procedures established by these services. If DOD has not designated single-service claims responsibility, the
4
appropriate unified commander may, on an interim basis, assign responsibility.

1
See generally chs. 1-3 and 10, AR 27-20; ch. 11, DA PAM 27-162.

10 U.S.C. ∋ 2734a addresses claims arising overseas under international agreements.

2

3
Before deploying, the JA 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. Other sources of local law include the Civil Affairs Office and the
U.S. Consulate or Embassy in country.

4
See, DO D DIR. 5515.8; sec. I, ch 7, DA PAM 27-162.
10-1
Potential Claims. Although JAs will encounter some of the same types of claims while deployed as seen at the home
station, deployment claims operations will vary from those conducted in garrison in several significant respects. First,
5
The Federal Torts Claims Act (FTCA) does not apply to claims arising in a foreign country. Second, claims laws
6 7
applicable only overseas, such as the Foreign Claims Act, a SOFA, or some other form of stationing
agreement/arrangement, will impose procedures and substantive limitations that differ from those applicable in
CONUS. The following is a short summary of the types of claims that may be encountered in an overseas operation
or exercise.
8
Claims Cognizable under the Personnel Claims Act (PCA). The PCA applies worldwide; however, it is limited
to claims for loss, damage, or destruction of personal property of military personnel and Department of the Army
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 claimant's
negligence caused the loss. Prompt payment of soldiers' 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
9
immediately upon arrival at the deployment or exercise site.
10
Claims Cognizable under the Military Claims Act (MCA). 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 restrict application of the MCA overseas to
claims by U.S. tourists and family members accompanying the force. Payable claims include those involving damage
to real or personal property, personal injury, or death.
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” include administrative movement of troops and equipment unique to
military operations, such as tanks, missile launchers, combat aircraft, and similar military hardware.
11
Claims Cognizable under the Foreign Claims Act (FCA). The FCA is the most important claims statute in foreign
deployments. Since the FCA applies only overseas and, therefore, is not used routinely by CONUS-based claims
offices, JAs and unit claims officers must be sure to familiarize themselves with its provisions and compile as much
supporting information (e.g., country law summaries) as possible before deployment. 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 the U.S. Similar to the MCA, the claim can be based either on a negligent or wrongful act
or omission by U.S. military personnel or the noncombat activities of U.S. forces. Unlike the MCA, however, there
generally is no scope of employment requirement.

FCA claims are adjudicated by foreign claims commissions (FCC) consisting of either one or three members.
FCCs are usually comprised of judge advocate claims officers, although unit claims officers often serve as single

5
28 U.S.C. ∋∋ 2671-2680. See generally, ch. 4, AR 27-20 and chs. 4 & 5, DA PAM 27-162.

6
10 U.S.C.∋ 2734; ch. 10 AR 27-20.

7
Sec. II, ch. 7, DA Pam 27-162.

31 U.S.C. ∋ 3721. See generally ch. 11, AR 27-20 and ch. 2, DA PAM 27-162.
8

9
Under the small claims procedures set forth in AR 27-20, ch. 2, sec. V, personnel claims that can be paid for $1,000 or less and tort claims that can
be settled for $2500 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.

10 U.S.C. ∋ 2733. See generally ch. 3, AR 27-20.

10

10 U.S.C. ∋ 2734. See ch. 10, AR 27-20.

11

10-2
member commissions as well. Three-member FCCs may include the deputy staff judge advocate or staff judge
advocate. Regardless of their composition, FCCs must be appointed by proper authority (normally the Commander
of the U.S. Army Claims Service), and preferably before deployment. 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. Before deploying,
JAs and their supported units should attempt to compile local law summaries for all countries in which the unit is likely
to conduct operations. After deployment, claims personnel can contract for local attorney assistance or obtain
information on local law and custom from the U.S. Consulate or Embassy located in country.

Predeployment planning is the key to effective claims adjudication under the FCA. All legal offices subject to
mobilization or deployment should identify FCC members and alternates well in advance of deployment. Such
personnel must be familiar with the FCA’s application of foreign law. The U.S. Army Claims Service has developed
an "off-the shelf" FCC appointment package and can assist in the speedy appointment of FCCs.
12
Claims under Reciprocal International Agreements (SOFA Claims). 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
13
acts or omissions of a member or civilian employee of an armed force of the United States." The U.S. will normally
deploy on exercises only to countries with which it has such international agreements. For example, if a unit deploys
to Korea, Japan, or any NATO country, claims matters will be managed by a command claims service under a
14
system of single-service claims responsibility outlined in the applicable status of forces agreement.

An exercise deployment to one of these SOFA countries places additional predeployment responsibilities on the
JA. First, knowledge of the claims provisions contained in the applicable SOFA is mandatory. Second, the JA 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."
15
Solatia Payments. If a unit deploys to the Far East or Middle East, JAs must consider the custom, widespread in
such areas of the world, of making solatia payments to accident victims. These payments are immediate, generally
nominal,
". . . and based on a feeling of responsibility or sympathy by the individual involved toward the victim or his or her
family." The individual or unit responsible for 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 solatia ensures the goodwill of
local national populations, thus allowing the U.S. to maintain positive relations with the HN.
16
Article 139 Claims. Article 139 authorizes collection of damages directly from soldiers' 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. SPCMCAs, who function as appointing and final action authorities for Article
139 claims, may be geographically separated from the investigating officer and the reviewing claims JA. Every unit
must prepare for these challenges and contingencies during predeployment planning.

Real Estate Claims. When deployed on an overseas exercise, the Corps of Engineers is responsible for resolving
all claims for ". . . rent, damage, or other payments involving the acquisition, use, possession, or disposition of real
property." The authority for resolving real estate claims is AR 405-15. There are instances when claims for damage
to real property will be "founded upon tort," however. These claims include trespass and unauthorized entry and are

10 U.S.C. ∋ 2734a (commonly referred to as the International Agreement Claims Act).

12

13
Id.

14
See figure 7-1, DA Pam 27-162 for a list of U.S. sending state and single-services offices.

15
See para. 10-17, AR 27-20 and para. 8-4, DA PAM 27-162.

10 U.S.C. ∋ 939. See generally ch. 9, AR 27-20 and chap 10, DA PAM 27-162.
16

10-3
considered under the provisions of either the FCA or the MCA. The majority of real estate claims, however, will be
settled by an Engineer Real Property Team. Predeployment coordination and regular communication with the
engineers after deployment is, therefore, essential. During lengthy deployments, be prepared for the possibility of
rapid turnover of real estate officers. In Operation Joint Endeavor, for instance, the Corps of Engineers rotated
civilian real estate officers into the area of operations on sixty day tours.

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 myriad of issues and planning factors that are not directly
related to the adjudication and payment of claims. For example, 1st Armored Division claims personnel in Bosnia
were subject to force protection rules that prohibited them from leaving their base camps except in four-vehicle
convoys with crew-served 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 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 71D or 71L clerical support to
perform effectively. Equipment support is also essential. Whenever possible, claims JAs should have available a
mobile legal office, including a laptop computer with claims software and email capability.

Every unit's 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 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. JAs 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 also be
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. Local national insurance adjusters may serve as additional sources of information and assistance
in the investigation and adjudication of claims.

Once 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. Don’t assume that finance offices will supply
you with Class 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, distributed by USARCS. 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
17
through extensive coordination with unit comptroller personnel and USARCS.

COMBAT CLAIMS

Effect of International Agreements. Provisions in international agreements between the U.S. and HN 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

17
See Footnote 3, supra.

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 18
agreement that addresses claims issues, it may be suspended in time of armed conflict. The agreement may also
exclude claims arising from "war damage." One option the JA should investigate, however, is concluding an
19
agreement under which the HN assumes responsibility for paying all claims that result from any combat activity.

Noncombat Claims Arising on Conventional Combat Deployments. A basic principle embodied in U.S. claims statutes
20
and AR 27-20 is that damage resulting directly from combat activities 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
21
States in combat" are not payable under the Foreign Claims Act. Claims personnel must, however, distinguish
between combat related claims and noncombat claims that arise in a combat setting. Claims unrelated to combat
22 23
activities will arise under the Foreign Claims Act, the Military Claims Act, and the Personnel Claims Act, which
24
provides compensation to soldiers for property losses due to enemy action. Solatia payments are not barred by
the combat activities rule and will commonly be based on injury or death resulting from combat activities. Claims
25
under Article 139 of the UCMJ and real estate claims also arise in combat deployments . The JA 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 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 War--Vietnam, Grenada, and Panama--provide 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
26
units of the Republic of Vietnam, the United States, and the Free World forces. 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
27
property damage as an exception to the restrictions imposed by the combat activities exclusion. 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
28
guarantees, trade benefits, and other economic assistance programs.

18
NATO SOFA Art. XV, e.g. provides that in the event of hostilities, a party may suspend the SOFA by giving 60 days notice.
19
For example, South Vietnam had responsibility for processing and paying all combat claims generated by U.S. and "Free World forces."

20
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.

10 U.S.C. ∋ 2734. See generally ch. 10, AR 27-20 and ch. 7, sec. I, DA PAM 27-162.
21

10 U.S.C. ∋ 2733. See generally ch. 3, AR 27-20 and ch. 4, DA PAM 27-162.
22

31 U.S.C. ∋ 3721. See generally ch. 11, AR 27-20 and ch. 2, DA PAM 27-162.
23

24
See note 15 and accompanying text.

10 U.S.C. ∋ 939. See generally ch. 9, AR 27-20 and ch.10, DA PAM 7-162.
25

26
Dep’t of the Army, Vietnam Studies, Law of War: Vietnam 1964-1073, Prugh, George S., Major General; Wash. D.C. 1975.

27
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 (PAPA) 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.

28
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
10-5
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
29
whenever there is a valid military necessity. Complications arise, however, when the owner of the property files a
claim for its damage, destruction, or use, and there is no record of the requisition. The claims JA’s investigation must
document the cause and timing of the requisition. Requisitions during combat activities are considered combat
damages and are not compensable.

To ensure proper documentation of requisition claims, the JA must implement a procedure to record and describe all
requisitioned items. This might be as simple as providing designated NCOs with booklets of receipts to provide
civilians when property is requisitioned. Copies of receipts are maintained for accounting purposes. A sample
property receipt should be included in the unit claims deployment materials. The JA's law of war training should
include instruction on the proper requisitioning of property and accountability of requisitioned property.

DEPLOYMENT CLAIMS LEGAL GUIDE

I. INTRODUCTION

A. During deployment of U.S. forces into a foreign country (“receiving state”), injury to personnel
or damage to property of either the U.S. or the receiving state and its inhabitants may occur. These
damages may be caused by the wrongful or negligent acts or omissions of the personnel of either state.
Ordinarily, prior to any deployment, each company or battalion-sized unit appoints a Unit Claims Officer
(UCO), and depending upon the equipment and mission of the unit, a Maneuver Damage Control Officer
(MDCO). These individuals document and investigate every incident that may result in a claim either
against or on behalf of the U.S.

B. UCOs and MDCOs coordinate their investigations with either servicing judge advocates (JAs)
or Foreign Claims Commissions (FCCs). Individuals who are likely to be appointed as Foreign Claims
Commissioners should be appointed and trained in advance of deployment. FCCs investigate claims as
necessary, negotiate claims settlements within their approval authority, and process awards for payment.
FCCs also forward claims in excess of their approval authorities to the next higher authority, and provide
the appropriate Affirmative Claims Authority with information about potential claims in favor of the U.S.

C. The statutes and regulations that provide relief for damages resulting from deployments often
overlap each other. 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 to determine the proper claims statutes and
regulations to apply.

II. STATUTORY AUTHORITY

A. Claims against the U.S. arising from deployment damages are ordinarily settled under two
statutory grants of authority: Title 10 U.S.C. § 2734 (The Foreign Claims Act, or FCA) and Title 10 U.S.C.
§ 2734a (The International Agreement Claims Act). Under the FCA, meritorious claims for property losses,
injury or death caused by soldiers or the civilian component of the U.S. forces may be settled “[t]o promote
and maintain friendly relations” with the receiving state. FCA, § 2734(a). Such claims are investigated and
adjudicated by FCCs, whose decisions in these matters are final. Title 10 U.S.C. § 2735. Payment of
claims is ordinarily made in local currency. AR 27-20, ¶ 10-11e.

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.

29
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 soldiers who cannot be resupplied because of the tactical situation or
the billeting of soldiers in private dwellings if other suitable shelter is not available. These claims can be paid under either the FCA or the MCA, as
appropriate
10-6
 B. Section 2734a allows U.S. forces to settle meritorious. claims pursuant to U.S. obligations
under international law. The most common form of such a treaty is a Status of Forces Agreement (SOFA),
such as the NATO SOFA and its analogs. The receiving state ordinarily investigates and adjudicates
incident-to-service (“in-scope”) claims, pays the claimants, and then seeks reimbursement from the U.S.
Statutory authority to reimburse the receiving state is granted only when the U.S. is actually a party to the
agreement and the agreement provides for a cost-sharing arrangement. § 2734a(a). Non-scope claims
are still handled under the FCA; and under § 2734a, these claims are ordinarily the only ones in which an
FCC would be involved. Reimbursement of the receiving state under the NATO SOFA, for example, is an
administrative rather than an adjudicative act.

III. PRECEDENCE OF UTILIZATION

A. Other statutory bases exist which may also be used to pay certain deployment-related claims
outside the U.S. Examples include Title 31 U.S.C. § 3721 (The Personnel Claims Act, or PCA) and Title 10
U.S.C. § 2733 (The Military Claims Act, or MCA). If a claim is cognizable under either the FCA or the
PCA, however, it must first be processed under these statutes rather than the MCA. For example, local
national employee claims must first be considered under the PCA and not the MCA. The PCA is also very
important for the settlement of claims of U.S. personnel involved in deployments through the operation of
Special Claims Processing Offices. The MCA theoretically has world-wide coverage, but because of its
preemption by the FCA, it will ordinarily only be used for claims of U.S. dependents or tourists who are not
“local inhabitants” of the receiving state or other foreign country.

B. Certain administrative claims procedures also exist which can be used to settle claims outside
the foreign claims statutes. For example, U.S. forces involved in U.N. operations will ordinarily allow claims
arising from their in-scope activities as part of the operation to be processed through U.N. claims
procedures. See AR 27-20, Claims (1 August 1995), ¶ 10-3a-d, for additional precedences of utilization.

IV. THE FCA

A. Applicability. The FCA applies outside the U.S., its territories and possessions, and the
territorial waters thereof. The inhabitants of a receiving state and all levels of its government, national and
local, are proper claimants. AR 27-20, ¶ 10-7a(1)-(4). 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 all improper claimants. AR 27-20, ¶ 10-7 b, c. Claims for personal
injury or death, or damage to real or personal property may be settled under the FCA. AR 27-20, ¶ 10-8.
AR 27-20, ¶ 10-9, sets out the categories of claims which may not be allowed. These 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. Id.

B. Causation. To be allowable, the claim must result from “non-combat activity” or a negligent or
wrongful act or omission. AR 27-20, ¶ 10-8a. “Non-combat activity” is defined as an activity “essentially
military in nature, having little parallel in civilian pursuits.” AR 27-20, Appendix A, § II. Examples include
training, maneuvers and convoys. Id.

C. Liability. Liability is generally determined by “the law and custom of the country where the
accident occurred.” AR 27-20, ¶ 10-10a. Although AR 27-20, Chapter 10, does not specifically set out
conflicts of laws provisions, general principles applicable to tort claims are set out in AR 27-20, ¶ 3-8.
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.

D. Compensation. Ordinarily, local law and custom are applied to determine the proper
compensation for meritorious claims. AR 27-20, ¶ 10-10a. Punitive damages, court costs, attorney fees,
bailment and filing costs are not allowed. The “[l]ocal law or custom pertaining to contributory or
comparative negligence and to joint tortfeasors will ordinarily be applied”. AR 27-20, ¶ 10-10 b. 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

10-7
 payment. AR 27-20, ¶ 10-11a-c. Advance payments may be authorized in certain cases pursuant to AR
27-20, Chapter 2, § VI.

E. Claims Submission Procedure. Claims are ordinarily presented in writing to a U.S. or other
authorized official within two years of accrual. AR 27-20, ¶¶ 10-5, 10-6a. Verbal claims may be
accepted, but must be reduced to writing within three years of accrual; and the “[w]ritten claims must state
the time, place and nature of the incident; the nature and extent of damage, loss, or injury; and the amount
claimed.” AR 27-20, ¶ 10-6a. 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. AR 27-20, ¶ 10-6 b. The dollar equivalent of the
claimed amount is computed at the time the claim is filed. Id.

F. FCC Operations

1. Appointment. Within an area served by a command claims service, the “senior [JA] of
a command having a command claims service will appoint necessary [FCCs] to act on claims arising within
[the JA’s] geographical jurisdiction.” AR 27-20, ¶ 10-12a. “All other commissions will be appointed by the
Commander, USARCS,” and commissions appointed for U.S.-based units “may act on any claim arising out
of the operations of their unit.” AR 27-20, ¶ 10-12b. However, “[a]ny claims commission operating in or
adjudicating claims arising out of an area within the jurisdiction of a command claims service will comply
with the legal and procedural guidance of that service.” Id.

2. Composition. FCCs ordinarily consist of one or three members, who are normally
either commissioned officers or claims attorneys. AR 27-20, ¶¶ 10-13, 14. A one-member FCC that is
either a JA or a claims attorney may settle claims for up to $15,000; and a line-officer commissioner may
settle claims for up to $2,500. AR 27-20, ¶ 10-15a. A three-member FCC must consist of at least two
JAs or claims attorneys, and may disapprove claims of any amount, and settle claims for up to $50,000.
AR 27-20, ¶ 10-15b(1), (2). Claims to be settled in excess of $50,000 must be sent to USARCS. AR 27-
20, ¶ 10-15b(3). Two members of a three-member FCC constitute a quorum, and decision is by majority
vote. AR 27-20, ¶ 10-13.

3. Function. In coordination with UCOs and MDCOs, FCCs investigate claims as

appropriate. FCCs will determine the law and regulations applicable to the case, and will make “[e]very
reasonable effort” to “negotiate a mutually agreeable settlement on meritorious claims.” AR 27-20, ¶ 10-
12f(5). 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 accordingly so as to give the
claimant an opportunity to submit additional information it wishes to have considered before final decision.
AR 27-20, ¶ 10-12f. Once an FCC proposes an award to a claimant, it also forwards a settlement
agreement which the claimant may either sign or return with a request for reconsideration. AR 27-20, ¶
10-12f(2). 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.

V. RELATED ISSUES

A. Claims Involving Real Estate. Claims for “rent, damage, or other payments involving the
acquisition, use, possession, or disposition of real property or interests therein” (AR 27-20, 10-9p) are not
allowable unless:

1. The property is used in connection with “non-combat activities” as defined in AR 27-20

(maneuver or convoy damage for example); or

2. The use and occupancy of the property sounds in tort, such as trespass, even though
claimed as rent. AR 27-20, ¶ 10-8d (1).

Real estate claims based on contracts are handled under AR 405-15, Real Estate Claims Founded
Upon Contract (1 February 1986).

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 B. Solatia. Defined as the payment in money or in kind to a victim or to a victim’s family. It is
intended as an expression of sympathy or condolence, and it is a common custom in certain parts of the
Far East and Southwest Asia. Such a payment is not an admission of liability, and may even be made for
death or injury resulting from combat activities. Such payments are not made out of claims funds; rather,
O&M money is used. AR 27-20, ¶ 10-17; DA Pam 27-162, Claims (15 December 1989), ¶ 8-4. Solatia
payments should not be made without prior coordination with USARCS and the highest levels of command
for the deployment area.

C. Combat Acquisitions. Although enemy 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 found at AR 27-20, ¶ 10-9 a 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. AR 27-20, ¶ 10-8d(2). To ensure proper documentation of
requisition claims, the servicing JA 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. Deployment Claims Office Operation Outline
B. Sample Deployment Claims SOP
C. Unit Claims Officer Deployment Guide

10-9
 APPENDIX A
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 Services -- Claims (1 Aug 95),
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 (JAs) 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 JAs. DA Forms 1208 are
completed and forwarded as well when appropriate.

C. Unit JAs forward potential claims files and completed DA Forms 1208s 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 (SPCOs) 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 JAs.

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. To service a division-sized unit, train three JAs 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 brigades. Together, the three can serve as a three-member commission, which can handle
claims up to $50,000 for the division, if necessary.

F. Secure a supply of the following forms for possible use by an FCC :

(1) DA Form 200 -- Transmittal Record

(2) DA Form 1666 -- Claims Settlement Form
(3) DA Form 1667 -- Claims Journal

10-10
 (4) DA Form 1668 -- Small Claims Certificate
(5) DD Form 1131 -- Cash Collection Voucher
(6) SF 95 -- Claim for Damage, Injury, or Death
(7) SF 1034 -- Public Voucher

G. Train one JA and one NCO to staff an SCPO.

IV. DEPLOYMENT PLANNING

A. U.S. Army Claims Service (U.S.ARCS). Immediately upon being informed of a possible
deployment, contact the Chief, Foreign Torts Section, 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 MOU.S. 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.
10-11
 This will expedite 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, liability and the measure of damages under
the Foreign Claims Act is most often determined by local law. 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.

K. 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.

L. 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.

10-12
 APPENDIX B
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 Form 1208s, 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 most simple 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 claimant’s 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. Notate 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 non-scope tort), and the next available claims number. For example, 96-E99-T001.

IV. NEW CLAIM PAPERWORK.

A. If claimant is represented by an attorney, make sure POA is in 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 you are operating under. A certificate is required as to the type of claim in areas where
the NATO SOFA or a NATO SOFA analog applies.
C. Ensure that either SF 95, Claim for Damage, Injury or Death or a bilingual form patterned after
USACSEUR Form 100 (Enclosure 3) 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 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 suspenses for correspondence with claimants. Notate 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 (Enclosure
4), 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
seven-paragraph 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. AR 27-20, Legal Services—Claims (1 August 1995), ¶10-
12f.

VI. PAYMENT.

A. Use SF 1034, Public Voucher, to pay the claimant. Attach DA Form 1666, DA Form 1668 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.
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.

ENCLOSURES

1. Claims Chronology Sheet

2. Sample Scope Certificate
3. Bilingual Claim Form
4. Ex Gratia Guidelines
5. Foreign Claims Commission Data Sheet
6. Seven Paragraph Memorandum Format

10-14
ENCLOSURE 1 CLAIMS CHRONOLOGY SHEET

CLAIMANT'S NAME:___________________________________ FILE # ________________

AMOUNT CLAIMED:_______________ $ __________________ AT:____________________

DATE OF INCIDENT: _________________________________________________________

DATE CLAIM FILED: _________________________________________________________


 DATE   SUSPENSE 
 RECEIVED   DATE 

   

   

   

   

   

   

   

   

   

   

   

   

   

   

   

   

   




10-15
ENCLOSURE 2
SAMPLE SCOPE CERTIFICATE

DEPARTMENT OF THE ARMY

U.S. ARMY CLAIMS SERVICE, EUROPE
Unit 30010, APO AE 09166-5346

AEAJA-CD-FC 15 Nov 95

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

10-16
ENCLOSURE 3 - BILINGUAL CLAIMS FORM, USACSEUR FORM 100


 
 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/ ) (Zip code/ ) (City/ ) 
 
 
 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: 
 _______________________ ________________ 
 


10-17
ENCLOSURE 3 - BILINGUAL CLAIMS FORM, USACSEUR FORM 100


 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 of 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 afore- 
 mentioned 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 
 


10-18
ENCLOSURE 4
EX GRATIA GUIDELINES

The following list is a compilation of general guidelines applied in adjudication of ex gratia claims
by USACSEUR. These guidelines must be applied on a case-by-case basis and modified as required by
the facts of the case and changes in local law. "YES" indicates the type of damage is normally allowed.

1. Damage to police property during an apprehension - YES, unless damage is ascertained to be a

result of police negligence or is of such a minimal nature that claimant can be expected to carry the
consequences in line with his official function.

2. Damage to rental property (apartments, homes, etc., otherwise covered by contract, express or
implied) - NO, except for damage documented as resulting from an act of willful misconduct or gross
negligence. Dirty or soiled walls, carpets, floors, and furniture are not compensable.

3. Contractual damage - NO. The U.S. Government is not a guarantor for the private contracts entered
into with U.S. soldiers.

4. Unidentified tortfeasor - NO, unless there is a description of the tortfeasor or a set of circumstances
indicating it is more likely than not that the tortfeasor belonged to the group of individuals for whose acts
of misconduct or negligence the U.S. Government assumes liability. Identification of the tortfeasor as an
English-speaking male or solely on grounds that the incident occurred near or on a U.S. installation is not
sufficient.

5. Damages by dependents - NO. This also includes damages caused by children under seven. In this
case, the parents cannot be held responsible for supervising their child 100 % of the time unless the
child's past behavior indicated that constant supervision was warranted.

6. Claims of subrogees - NO. Payment is specifically prohibited by the Foreign Claims Act.

7. Payment of attorney fees, court costs, bail, etc. - NO. Payment prohibited by AR 27-20, paragraph
10-10a.

8. Damages caused by pets - NO, unless the pet is supervised by an individual belonging to the group of
individuals for whose acts of misconduct or negligence the U.S. Government assumes liability.

9. Damage covered by insurance - YES. The U.S. Government cannot require a claimant to file for
property damage against an insurer (only if claimant would lose the insurance bonus).

10. Payment of no-claims bonus - NO. Claimant's damages arose as part of his contract with his
insurer; claimant can avoid the loss by filing for ex gratia initially.

11. Payment of loss of use - YES, but only if properly substantiated in the form of a rental car contract
or receipts of taxifares, bus fares, etc. documenting that claimant actually did incur this expense in a
specific amount.

12. Payment of repair cost estimate - NO. Claimant will ordinarily be reimbursed these expenses by the
repair shop when he commissions the shop to carry out the repair work.

13. Payment of expert opinion - YES, but only in cases where the damages are over $750.00 or the
vehicle is totaled, otherwise a cost estimate suffices (the claimant has a duty to mitigate expenses).

14. Third-party damages resulting from a mutual affray involving local nationals and Americans - YES.
Depending upon the facts of the case and if undue force on the part of the soldiers was used. The
damages will ordinarily be apportioned by fault as determined from the evidence on file.

10-19
15. Traffic accidents - YES. In cases of comparative negligence, an appropriate deduction will be
made.

16. Depreciation (loss of value) - NO. Claimant will only suffer this damage, if ever, at the time he sells
his car. Since ex gratia claims procedures compensate only actually realized expenses, depreciation
cannot be compensated.

17. Damages arising from fraud/deceit - NO. Prohibited from payment under AR 27-20, paragraph 10-
9z. Also viewed as contractual damages for which the U.S. Government is not a guarantor. But for
situations in which an implied contract might be found, the case may -- depending on the facts of the
case -- be properly viewed as theft (man takes gasoline from gas station).

18. Compensation for hospital visits by relatives - YES. Under German law, for example, it is
considered beneficial to a victim's health condition if his next-of-kin - living in the same household - visits
him in the hospital. Payment of their travel expenses is allowable for nearest relatives only.

19. Payment for rewards - NO. Rewards for information leading to the apprehension of a tortfeasor are
considered private contracts between claimant and the informant to which the U.S. Government is not a
party.

20. Compensation for anguish, i.e., immaterial damage caused by death of family member - YES. Next-
of-kin may be compensated for their anguish in losing a family member in an amount up to $3,000.
Medical certificates adequately documenting the condition must be provided.

21. Payment for funeral expenses, incl. mourning clothes, obituaries, etc. - YES. These expenses are
considered consequential costs of the incident.

22. Payment for stolen postal services - YES. Such claims mainly refer to "stealing" telephone services
and are allowable for the consumer value of the services.

23. Payment for damages resulting from rendering assistance - YES. Under German law, for example,
claimants filing for damages resulting from their rendering assistance to avert imminent danger are
allowable (management without mandate).

24. Payment of prostitute's loss of income - YES. Under German law, for example, a prostitute is
entitled to compensation for loss of income in an amount corresponding to an income achievable by any
given healthy person (must be documented).

25. Non-scope tort during maneuver - YES. Damages must be distinguished from those arising as part
of performance of duty during a maneuver. Examples are stealing fish out of a pond or wood for
heating, stealing or damaging items located in maneuver accommodations, and damaging trains
contracted for unit transportation.

26. Intervening causation - NO. If the object damaged by the U.S. soldier is rendered a total loss as a
result of a second, non-related incident, the damages from the first incident, if they had not yet been
repaired, are not compensable since claimant at that point no longer has suffered a loss as a result of
the soldier's misconduct.

27. Damages arising out of a personal relationship with the soldier - NO. The principles of equity do not
justify payment for such damages by girlfriends and "buddies" unless the damages are severely willful,
and beyond what can be accepted as belonging to the "personal sphere."

10-20
ENCLOSURE 5

FOREIGN CLAIMS COMMISSION DATA SHEET

1. FC-C #: ___________ 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. ADJUDICATOR’S SIGNATURE/DATE: _______________________________________

15. AMOUNT ALLOWED: _______________ 16. EQUIVALENT IN U.S. CURRENCY: _____________

17. COMMISSIONER’S SIGNATURE/DATE: ____________________________________________

10-21
ENCLOSURE 6
SEVEN PARAGRAPH MEMORANDUM FORMAT

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: DM Amount approved: DM

b. Consequential expenses.

Amount requested: DM Amount approved: DM

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 DM

8. Document and Witness List.

JOSEPH J. JONES
CPT, JA
Foreign Claims Commissioner

10-22
 APPENDIX C
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. These
damages can be caused by willful misconduct or negligent acts and omissions on the part of U.S. or receiving state
personnel. 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." AR 27-20, Legal Services -- Claims (1 August 1995), ¶ 2-1. Information must be collected and
recorded, whether favorable or adverse. Id. "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." AR 27-
20, ¶ 2-2b.
B. Occasions upon which immediate investigations are required include when government property is lost or
damaged, an actual claim is filed, a receiving state national is killed, or when a competent authority so directs. AR
27-20, ¶ 2-3a(1), (3), (4), and (9).

IV. APPOINTMENT PROCEDURES. Commanders appoint commissioned officers, warrant officers,

noncommissioned officers or qualified civilian employees as UCOs as an additional duty. AR 27-20, ¶ 2-4a. The
appointment orders (Enclosure 1) should instruct the UCO to coordinate with a designated Judge Advocate (JA) or
attorney who services the UCO's unit. AR 27-20, ¶ 2-4a(2). UCOs must seek guidance from the servicing JA at
the beginning and before the conclusion of the investigation whenever the claim is or may be for more than
$25,000. Id. 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 JA 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. AR 27-20, ¶ 2-4 b(1). UCOs will often be required to
coordinate their investigations with criminal or safety investigations, which have priority for access to incident sites
and witnesses. AR 27-20, ¶ 2-4b(3). The reports of such investigations can be extremely useful to UCOs in the
completion of their own investigations. Id. 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. AR 27-20, ¶ 2-
4b(2). 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 be sworn; claims adjudications are administrative matters in which decisions are
based upon a preponderance of the evidence. UCOs must consult with the servicing JA before disposing of any
evidence. Id.
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 memorandum explaining the attachments, if any, and the UCOs findings. The servicing JA 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).

10-23
 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.
AR 27-20, ¶ 2-4c(3). These determinations should be left to the responsible JA; 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.

ENCLOSURES

1. Appointment Order
2. Investigators Interview Checklist

ENCLOSURE 1
APPOINTMENT ORDER

DEPARTMENT OF THE ARMY

HEADQUARTERS AND HEADQUARTERS COMPANY
99TH ARMORED DIVISION
UNIT 10000, APO AE 09000

ABCDE-FG-HHC 15 Oct 96

MEMORANDUM FOR SEE DISTRIBUTION

SUBJECT: Duty Appointment

1. Effective 12 September 1996, 1LT Joe Jones, Unit Mailing Address, DSN phone number, DEROS is
assigned the following duty:

UNIT CLAIMS OFFICER

2. Authority: AR 20-27, para. 2-4c.

3. Purpose: As indicated in the applicable directives.

4. Period: 15 October 1996 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

10-24
ENCLOSURE 2
INVESTIGATORS INTERVIEW CHECKLIST

B-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 soldier's plans.

B-2. Driving experience.

a. When did the driver start to drive?
b. When did the driver first obtain a driver's license.
c. Types of driver's 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.

B-3. Vehicle involved in the accident.

a. How familiar was the operator with the vehicle (was it the operator's 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 PMCS, witnessed the PMCS, or checked that
PMCS was performed.
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?

B-4. The trip.

a. What were the driver's 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 B-8).
h. Who else was in the vehicle (get full personal information)?
10-25
 (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.
(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.

B-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 driver's 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.

B-6. Injuries.
a. Was our driver injured?
b. Names of other injured parties (compare with accident reports).

B-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?

B-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.

B-9. Diagrams.
Show the driver other accident diagrams if available and ask if they are accurate. If not, have the
driver explain why.

B-10. Insurance.
a. Consider the following insurance sources:
(1) Automobile insurance
(a) Injured party's own (even if injured party's vehicle was not involved).
(b) Owner of automobile.
(c) Driver of automobile.
(2) Homeowner's insurance.
(3) Property insurance.
10-26
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.

10-27
 CHAPTER 11
CONTRACTS

INTRODUCTION
Applicable Law During a Deployment
Wartime Funding
Wartime Contract Law

PREPARATION FOR DEPLOYMENT CONTRACTING

General Considerations
Contracting Officer (KO) / Ordering Officer Support
Administrative Needs
References
Contract Forms
Other Logistical Needs
Finance and Funding Support

CONTRACTING DURING A DEPLOYMENT

Competition Requirements
Methods of Acquisition
Sealed Bidding as a Method of Acquisition
Negotiations (Competitive Proposals) as a Method of Acquisition
Simplified Acquisition Procedures
Purchase Orders
Blanket Purchase Agreements (BPAs)
Imprest Funds
Government Credit Card Program
Simplified Acquisition Competition Requirements
Use of Existing Contracts to Fulfill Requirements
Alternative Methods for Fulfilling Requirements
Leases of Real Property

INTERNATIONAL LAW CONSIDERATIONS IN THE ACQUISITION OF

SUPPLIES AND SERVICES

POLICING THE BATTLEFIELD

Ratification of Contracts Executed by Unauthorized Personnel
Extraordinary Contractual Actions
General Accounting Office (GAO) Claims

CONCLUSION

APPENDIX A: STANDARD FORM 44

APPENDIX B: ORDERING OFFICER’S HANDBOOK

11-1
 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.

Contracting as a force multiplier: contracting locally reduces dependence on the CONUS-based

logistics system; contracting with local sources frees airlift and sealift for other priority needs; contracting
with local contractors reduces the time between identification of needs and the delivery of supplies or
performance of services; 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 War -- Combat.
The Law of War -- Occupation (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; DFAS-IN 37-1; DFAS Manual 37-100-XX.
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 will consist of contracting, legal, and 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. Reserve assets
may provide some contracting support. Coordinate in advance to determine the extent of this support.

11-2
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 enter, 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. KOs
may be appointed by the Head of Contracting Activity (HCA), an attaché, a chief of a foreign mission
(Army), or certain officials in the Army Secretariat. 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.

Ordering officers may be appointed by the chief of the contracting office. AFARS 1.603-1(2). There is
no specific guidance on appointing ordering officers -- common 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 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, 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. 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,
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. If possible, take
CD-ROM contract references and LEXIS/WESTLAW software, as well as necessary computer and
communications equipment.

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, and other Common Items.

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. Translations of contract forms, specifications, and other provisions also should be
obtained before deployment if possible.

Other Logistical Needs.

Bring maps, area phone books, catalogs with pictures, etc., to assist in finding and dealing with
sources 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.

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Finance and Funding Support. Finance specialists are not part of the contracting element and not under
its control. A deploying unit should train to account for funds properly 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) if requested to support needs while deployed.

Consider establishing an imprest fund in advance of deployment notification. FAR 13.4; DFARS 213.4;
DOD Reg. 7000.14-R, vol. 5, paras. 020906 to 020907. Practice making purchases with the fund to
support unit requirements in garrison. 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
1
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 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 for contracting to meet the needs of a
deploying force. Key to successful contracting operations are 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 letters of appointment for
contracting officers and ordering officers. 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. 10 U.S.C. § 2304 requires the government to seek competition for its
requirements. In general, the government must provide for full and open competition, 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:
(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).
(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

1
Effective 1 October 1996, use of imprest funds by DOD activities in CONUS was no longer authorized. Effective 1 October 1997, use
of imprest funds will no longer be authorized OCONUS. However, imprest funds will be authorized for use in declared contingency
operations. See message, Under Secretary of Defense (Comptroller), Subject: Elimination of Imprest Funds (28 March 1996).

11-4
 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.

Use of the urgent and compelling, national security, and public interest exceptions requires a "Justification
and Approval", or 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 made 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 government's requirement, or the best value, even if it is not
lowest in cost. The basis for award (low-cost, technically-acceptable or best value), and a description of
the factors and subfactors that the contracting officer will consider in making this determination, must be
stated in the solicitation.
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.

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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 exercises, or
up to $200K during a contingency operation declared by the Secretary of Defense, or a humanitarian or
peacekeeping operation, for contracts awarded and performed outside the United States. 10 U.S.C. §
2302(7); 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 Operation Joint Endeavor in and around Bosnia.

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 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.
(4) Government Credit Card Purchases. AFARS Subpart 13.9.

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) Dep't 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 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. 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

11-6
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.
BPA's 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.
(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 BPA's. AFARS
13.204-90. Existence of a BPA does not per se justify sole source purchasing. Consider BPA's with
multiple sources. If insufficient BPA's exist, solicit additional quotations for some purchases and make
awards through separate purchase orders.
2
Imprest Funds.
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. Maximum amount in a fund at any time is $10K.
Maximum single transaction amount is $500, except during overseas contingencies declared by SECDEF,
when the maximum amount is $2500. DFARS 213.404.

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 supplier's
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 (presently VISA cards
issued through Rocky Mountain Bankcard System) to purchase goods and services up to $2,500 per
purchase. 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 in advance of deployment, time for issuance is not available once the
unit receives deployment notice.

Simplified Acquisition Competition Requirements.

Competition requirements apply to simplified acquisitions as well as to larger procurements. For new
purchases up to $2,500, only one oral quotation is required, if the KO finds the price to be fair and
reasonable. Northern Virginia Football Officials Assoc., B-231413, Aug. 8, 1988, 88-2 CPD ¶ 120.
Distribute such purchases equitably among qualified sources. Grimm's Orthopedic Supply & Repair, B-
231578, Sept. 19, 1988, 88-2 CPD ¶ 258. If practical, 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-

2
See note 1, supra, regarding the phased elimination of imprest funds.

11-7
233450.2, Mar. 7, 1989, 89-1 CPD ¶ 248. Soliciting three sources is considered reasonable. If
practicable, solicit two sources not included in the previous solicitation. FAR 13.106(b)(1) & (5). You
normally should also solicit any 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) Public posting of the request for quotations for 10 days is required if the order is estimated to
exceed $10,000, 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. California Properties, Inc., B-232323, Dec. 12, 1988, 68 Comp. Gen.
146, 88-2 CPD ¶ 581. 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.

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.

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 Communications and Electronics Command (CECOM) 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.

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,

11-8
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 Dep't 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 generally cannot rely 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 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 9 provides a
summary of the international law principles which govern the acquisition of property while opposing an
enemy force or in occupied territory.

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

11-9
These officials may ratify only when:
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, Dep't of
Army Memorandum, Jan. 1990).

General Accounting Office (GAO) Claims. GAO claims procedures provide another method of settling
claims 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 Payments--Gov't
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, Meals--Furnishing--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.

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.

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 APPENDIX A:
STANDARD FORM 44

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 APPENDIX B:
ORDERING OFFICER'S HANDBOOK

TABLE OF CONTENTS
CHAPTER 1 - INTRODUCTION
CHAPTER 2 - FUNDING
CHAPTER 3 - RESPONSIBILITIES AND DUTIES OF ORDERING OFFICERS
CHAPTER 4 - STANDARD FORM 44 (SF 44)
CHAPTER 5 - PRE-PLANNING

CHAPTER 1: INTRODUCTION

PURPOSE -- This handbook provides a consolidated source of information for an ordering officer to use
during contingency operations or exercises. Concepts and guidelines contained in this handbook also may
be used by contracting personnel during deployment exercises.
SOURCE -- Materials contained in this handbook are based on regulatory guidelines concerning contingency
contracting, and after-action reports from actual deployments.
DEFINITIONS -- Contingency -- An operation in which members of the military are or may become engaged
in active hostilities against an enemy or an opposing force. It does not include routine
training exercises or activities at or away from the home station.
Contingency contracting -- Provides those essential supplies and services needed to
sustain the mission during a contingency operation.
MISSION STATEMENT -- "To support purchases of over-the-counter supplies and services essential to the
mission of deployed units." The operative word is "support." A truly effective ordering officer never forgets
the mission is to provide timely support to the unit by purchasing those legitimate requirements at a fair and
reasonable price.

CHAPTER 2: FUNDING ISSUES

INTRODUCTION -- This chapter highlights appropriate contingency contract funding practices. In every
case, proper authorities must certify appropriated funds as available prior to an ordering officer's execution
of an SF 44. The procedures for acquiring such certification will depend on the location and duration of the
deployment, and proximity of the Finance and Accounting Officer. Failure to secure sufficient funds prior to
the execution of an SF 44 will cause delays in payment which create an embarrassment to the unit and may
eliminate an important source of supply. Such a failure also may result in adverse consequences for the
ordering officer personally.

FINANCE AND UNIT RELATIONSHIPS -- A deployed unit must maintain a close working relationship with its
Finance and Accounting Officer for timely fund certifications and payments. Communications must be
maintained throughout the deployment to ensure expenditures are within the funds available, and that any
supplemental funding is obtained prior to making purchases. Early coordination with the Finance and
Accounting Officer will avoid confusion and will assist in a more organized departure.

FUNDING PROCEDURES -- Prior to deployment, the unit must submit a funding document, certified by the
proper authority, to the Directorate of Contracting. The document that usually serves as support for this
funding action is DA Form 3953, Purchase Request and Commitment. The DA Form 3953 must state the
number of SF 44s needed by the deploying unit and the approximate time frame for their use. When
approved by the finance officer or designee, the DA Form 3953, Purchase Request and Commitment,
makes funds available for obligation and records them as commitments in accounting records. The amount
approved is an estimate of the amount which may be obligated by the recipient unit for a specific period of
time and designated purpose. DA Form 3953 normally is issued to the Directorate of Contracting to permit
requirements to be funded without having to certify "funds availability" for each requisition. If the Directorate
of Contracting is issued such a bulk-funded DA Form 3953, the ordering officer is responsible for keeping a
record of obligations and the remaining balance of funds on the reverse of the form.

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CLASS A PAYING AGENTS -- Class A paying agents are appointed when payment to vendors cannot be
made by disbursement from a central paying office. The use of Class A paying agents often is necessary
when paying in foreign currency. Their use also expedites payments to help establish and maintain good
vendor relationships. Most small businesses in CONUS and overseas cannot afford to wait for payment for
long periods of time, and availability or lack of expedited payment will influence their decision to do business
with the Government, or the prices they charge. Most overseas purchases are cash-and-carry only.

CLASS A PAYING AGENTS' DUTIES -- Class A paying agents are appointed in writing by the installation
commander or individual commanders of tenant activities. They make payments for purchases made by the
ordering officer. Prior to deployment, the paying agent should receive a thorough briefing from the Finance
and Accounting Officer on duties and responsibilities, and be given written operational instructions.
Designated pick-up points and emergency procedures are essential for the timely release and
replenishment of funds.

CHAPTER 3: RESPONSIBILITIES AND DUTIES OF ORDERING OFFICERS

Before buying anything, ordering officers must ensure that:

A. Sufficient funds are available. A DA Form 3953, Purchase Request and Commitment Form,
signed by a Budget Officer or other designated certifying officer must be in place prior to the
ordering officer entering into any transactions.
B. The purchase amount of any one transaction does not exceed the dollar limitation specified in the
appointment letter. The requirement will not be split to avoid this dollar limitation. The current
limitation for use of the SF 44 is $2,500 ($25,000 is the limitation for aviation fuel).
C. The supplies or services are available in the local trade area.
D. One delivery of supplies or services and one payment will be made per SF 44.
E. The price is fair and reasonable.
F. The purchases are rotated among sources of supply when possible.
G. Items are justified and mission essential.

The ordering officer must also:

A. Prepare the Standard Form 44 in accordance with the completion instructions of Chapter 4.
B. Comply strictly with all provisions of the appointment letter.
C. Maintain a register of orders issued and copies of each SF 44 with supporting documents, in
accordance with the recording instructions of Chapter 4.
D. Promptly report individual transactions made during the month and at the completion of the
operation, in accordance with Chapter 4.
E. Become thoroughly familiar with the Joint Ethics Regulation, DOD Reg. 5500.7-R, and review it at
least semiannually. The ordering officer will furnish the appointment authority a signed statement
that procurement integrity requirements have been read and understood.

CHAPTER 4: STANDARD FORM 44

GENERAL -- This chapter prescribes policies and procedures governing the activities of ordering officers
authorized to make simplified acquisitions using Standard Form 44.

DEFINITIONS -- Ordering Officer -- a military or DOD civilian employee authorized to make simplified
acquisitions of supplies and non-personal services by virtue of an appointment letter issued by the Director
of Contracting. Individuals considered for appointment must be qualified and have the time available to act
as an ordering officer. Class A Agent -- a Commissioned, Warrant or Noncommissioned Officer in the
grade E-7 or above, appointed to act as an agent of the Finance and Accounting Officer (FAO) for the
purpose of making payments as specified in the appointment letter. Receiving Officer -- a military or DOD
civilian employee, from the requiring activity, normally in a position to verify receipt of supplies or services.
This individual does not require orders. Whenever feasible, the ordering officer and receiving officer should
be separate individuals.

POLICIES -- USE OF STANDARD FORM 44

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 A. The Standard Form 44 is printed as a carbon interleaved form, with four sheets per set, and
provides in one document a Purchase or Delivery Order, a Receiving Report, a Property Voucher,
and a Payment Voucher.
B. Purchases with this form will only be made by a duly appointed ordering and/or contracting officer.
Total dollar amount of each SF 44 will not exceed the dollar limitation specified in the appointment
letter or by regulation.
C. Orders will be for off-the-shelf items. Prices may be obtained by telephone or from a vendor's
place of business. Only one source of supply must be considered, so long as the ordering officer
can justify the price as reasonable. Do not use the same vendor all the time. Switching vendors
will increase the interest of several vendors in conducting business with the government, and
ensure reasonable prices.
D. Similar type items will be consolidated, whenever possible, into one order. When the aggregate
monetary amount exceeds the authorized dollar limitation of the ordering officer, requirements will
not be split to avoid the limitations on the ordering officer's authority. These requirements will be
referred to the contracting officer for procurement action.
E. Ordering officers cannot redelegate their responsibilities. They must sign all documents used for
purchasing with the same name as appears in their appointment letter and use the title "Ordering
Officer." No one will sign for an ordering officer under any circumstances.
F. When a purchase is to be made using the SF 44, the ordering officer executes the purchase
document. The items will be signed for by the receiving officer and paid by the Class A Agent. If
the Class A Agent is not available, and depending on the circumstances, the ordering officer either
will give the Seller copies 1 and 2 of the SF 44 with instructions to forward copy 1 to the Finance
and Accounting Office (FAO) designated on the form for payment, or will only give copy 2 to the
Seller for his records, and send copies 1 and 3 to the FAO directly for payment.
G. Ordering officers will not make any purchases from individuals who are employed by the U.S.
Government, or from a company with which the ordering officer has an interest or stock. If this is
the only source of supply, the appointing authority must be notified.

DISTRIBUTION OF THE SF 44
A. When the SF 44 is paid immediately by the Class A Agent, copy 1 is signed by the seller and
given directly to the Class A Agent; if not, see para. f. above under "Policies."
B. Copy 2 (seller's copy of invoice) will be given to the vendor at the time of purchase.
C. Copy 3 will be annotated by the receiving organization, and forwarded to the proper FAO/Class A
Agent as the receiving report.
D. Copy 4 will be retained by the ordering officer and forwarded with the end-of-month report.

USE OF THE SF 44
A. The ordering officer must be aware that just because an item is authorized by a TDA or other
publication does not mean it is authorized for local purchase. Close coordination with unit supply
personnel is required to make these determinations. Items which are not utilized in direct support
of the activity for which the ordering officer was appointed may not be purchased. Purchasing
items, or contracting for services, other than those authorized, is not legal and the ordering officer
may be held pecuniarily liable. For example, some ordering officers in Grenada bought "PT
uniform" T-shirts for their units, and ended up paying for them personally.
B. The ordering officer must be aware that the SF 44 is a direct draft upon the U.S. Treasury, which
may be accepted by vendors without further proof of authority to execute. Therefore, the ordering
officer must safeguard all SF 44s, or risk being held accountable for those forms presented for
payment over the signature of someone other than the ordering officer.
C. he SF 44 may be used to effect purchases when one or more of the following conditions exist:
(1) When an emergency situation precludes submission of a purchase request through normal
supply channels. Lack of foresight or pre-planning does not constitute an emergency.
(2) When authorized supplies are not available through normal supply channels and local
procurement for these supplies is determined to be the most efficient means of re-supply.
(3) When there are no other sources of U.S. Government supply available within a reasonable
area.

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COMPLETION OF STANDARD FORM 44
Block 1 -- Self explanatory.
Block 2 -- Order No. The order number consists of thirteen (13) alpha numeric characters as follows:
Characters 1 thru 6 -- Activity Address Number
Characters 7 and 8 -- Current Fiscal Year (i.e. 91)
Character 9 -- M
Character 10 thru 13 -- Serial number assigned in numerical sequence preceded by the alpha
character X (i.e. X001). A completed order number looks like the following:
DAHC76-91-M-X001.
Block 3 -- Complete name and address (including zip code) of supplier.
Block 4 -- Unit and address for which the ordering officer is making the purchase and is otherwise
assigned.
Block 5 -- Description of supplies or services to include quantity, unit price, and extended amount.
Block 6 -- Self explanatory.
Block 7 -- Discount terms, if applicable.
Block 8 -- Agency name and billing address of the FAO.
Block 9 -- Signature of ordering officer.
Block 10 -- Purpose and Accounting Data. Give complete fund citation. The ordering officer needs to
obtain this information from the appropriate budget officer.
Block 11 -- Signature of the receiving officer or ordering officer as appropriate.
Block 12 -- Self explanatory.
Block 13 -- Self explanatory.
Block 14 -- Check this block and insert the total amount from Block 6. NOTE: If the Seller is going to
be responsible for submitting copy #1 (original) of the SF 44 to the FAO, give the Seller copies 1
and 2 with instructions on processing of the original (copy 1) to the FAO.
Block 15 -- If the Seller is going to use the SF 44 as its invoice, it needs to sign in this block. If the
Seller is using its own invoice, attach the invoice to copies 1 & 3, and forward to Finance &
Accounting Office, or give these copies to the Class A Agent. When the supplier wants to use its
own invoice, it does not sign in
Block 15.
Block 16 -- Self explanatory.

RECORD OF PURCHASES BY THE ORDERING OFFICER

A. The ordering officer will maintain a record of purchases made in register format. The register will
show, as a minimum, purchase instrument number, vendor identification, and total cost of the
transaction. Copy 4 of the SF 44, with a copy of the Seller's sales slip or invoice, will be filed with
or cross-referenced to the related register page and entry number.
B. The ordering officer also will maintain a record of funds remaining available to him on the back of
the DA Form 3953. This will be maintained in checkbook register style, with each entry being
subtracted and a running balance maintained at all times.

REPORTING OF INDIVIDUAL TRANSACTIONS

A. A report of the transactions made during the month will be made directly to the Appointing
Authority no later than the last day of each month. Cut off date for the report will be the 20th day
of each month to ensure submittal of the report by the last day of the month.

B. Ordering officers appointed for a period of less than one month, or for an operation lasting less
than four weeks, and whose period of appointment overlaps the 20th of the month in which the
appointment begins, will submit a single report within 10 days of the date of termination stated in
the appointment letter or the end of the operation.
C. Negative reports are required in all cases.

CLEARANCE REQUIREMENTS / LETTERS OF CLEARANCE

A. When an ordering officer's appointment is terminated, the ordering officer will bring to the Director
of Contracting or Appointing Authority the following:
(1) Original copy of appointment letter.
(2) Copies of all reports filed previously.

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 (3) A complete report for any period between the last report and the date of termination,
including all copies of the SF 44, all sales slips or other receipts, and any justifications, if any,
regarding price or source reasonableness.
(4) An original copy of the DA Form 3953.
(5) Any unused SF 44s in his possession.
B. A Letter of Clearance/Termination signed by the contracting officer will be returned to the ordering
officer after all the above has been reviewed and certified to be acceptable.

CHAPTER 5: PRE-PLANNING

GENERAL -- At this point, the ordering officer should have a basic understanding of legal authorities,
funding practices, and duties. The previous chapter dealt with mechanics on how to fulfill those duties. This
chapter will focus on pre-planning and preparation actions for establishing local purchase capability. While
not intended to be all inclusive, it should provide the ordering officer a good foundation and better
perspective on his or her role.

PRE-PLANNING AND PREPARATION -- There are many things a unit can and should do to prepare for an
operation. Preparing in advance is important for one very basic reason: there will not be enough time to do
these things once an operation gets under way. The following areas are those an ordering officer should at
least address and plan for prior to deployments.
A. Personal and Administrative Preparations. The following is a list of administrative requirements an
ordering officer must possess to start an operation:
1. SF 44s furnished by the Directorate of Contracting.
2. Ordering officer handbook.
3. Copy of the DA Form 3953 that the SF 44s were issued against.
4. Ordering officer appointment letter.
5. Civilian clothes. In some instances, it may be necessary to keep a low profile and blend in with
the local community.
B. Arrange for the Class A paying agent to accompany the ordering officer with local currency for
local purchases.
C. Establishing the Rules of Engagement. The ordering officer needs to have a plan that will best
support the unit's needs. This will entail establishing a set of rules for customers to follow when
submitting requirements. The rules should include instructions on purchase descriptions, funding,
pick-up, and delivery procedures. The rules should also discuss consolidating requirements, when
possible, to avoid unnecessary trips downtown. When multiple units are operating in a particular
area, the ordering officers and their commanders should coordinate their requirements to avoid
competing among themselves for scarce resources.
D. Locating Sources. One of the most difficult problems for the ordering officer at an unfamiliar
deployment site is locating capable contractors who can satisfy the unit's requirements. The
following are various ways an ordering officer may solve this problem:
1. Knowledgeable interpreter/guide. This person is a logical first choice for obtaining sources,
although the ordering officer must be careful to ensure that he or she is not related to most
of the vendors.
2. U.S. Embassy (if available). This can be an excellent source of information. The defense
attaché office in most embassies can help with currency conversions and storage of funds,
as well as providing a source list of reputable contractors. In addition, the Embassy General
Services officer (GSO) may be able to provide some contracting support -- particularly if a
contract is to be written with the host country's government.
3. Site surveys. This is an excellent tool to speed up the ordering process. Ordering officers
should add sources to the site survey list as they become known.
4. Ask around. There are a multitude of ways of finding sources. Some successful ways have
included contacts with the Chamber of Commerce (or equivalent), business associations,
local clergy, influential citizens, and local government leaders such as the mayor. The major
hotel chains overseas have business offices which can help locate local sources of supplies.
In addition, there is nothing wrong with asking other contractors where certain requirements
might be obtained. Finally, the local yellow pages is an invaluable source of information on
local firms.

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 CHAPTER 12

FISCAL LAW

INTRODUCTION

BASIC FISCAL CONTROLS ON APPROPRIATED FUNDS

THE PURPOSE STATUTE -- GENERALLY

Augmentation of an Appropriation Generally Is Prohibited
DOD Appropriations and their Purposes

THE PURPOSE STATUTE -- SPECIFIC MILITARY OPERATIONAL ISSUES

O&M Appropriations -- Use During Deployments and Contingency Operations
Military Construction -- A Special Problem Area
Contacts and Exercises with Foreign Militaries
Overseas Humanitarian, Disaster, and Civic Assistance (OHDCA)
Supporting Multilateral Peace and Humanitarian Operations
Security Assistance
Domestic Disaster Relief Operations
Correcting Purpose Act Violations

AVAILABILITY OF APPROPRIATIONS AS TO TIME

AVAILABILITY OF APPROPRIATIONS AS TO AMOUNT

THE ECONOMY ACT

CONCLUSION

REFERENCES FOR FURTHER RESEARCH

INTRODUCTION

Fiscal law principles apply to all federal operations. For the military services, fiscal law issues
frequently arise during contracting, drug interdiction, humanitarian and civil affairs, security assistance,
disaster relief, and special forces operations. With a growing number of non-traditional missions to fulfill,
the Department of Defense (DOD) increasingly encounters fiscal issues in conducting its operations.
Failure to apply fiscal law principles properly may lead to unauthorized expenditure of funds, and to
administrative and/or criminal sanctions against those responsible.
The U.S. Constitution gives Congress the authority to raise revenues and appropriate the proceeds to
federal agencies. See Art. I, § 8. Courts have interpreted this Constitutional requirement as necessitating
positive statutory authority for activities/expenditures by the Executive Branch. See US 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 Congress.”) In
implementing its Constitutional mandate, Congress provides expressed legal authority for military
operations. In addition, Congress has strictly limited, by statute, the ability of the executive branch to
obligate and expend certain appropriated funds. Finally, Congress and DOD have agreed informally to
other restrictions, which generally require DOD to notify Congress before taking certain actions.

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 These restrictions are implemented by regulations and policies within DOD. Military practitioners
should look to three primary sources of law to define this legal authority: (1) a statutory authorization
found in Title 10 of the U.S. Code, (2) or the annual DoD Authorization Act, or (3) a specific appropriation
in the annual DoD Appropriations Act. Without a clear statement of positive legal authority (or some other
legislative intent expressed in a conference report, for example), the military attorney should be prepared
to articulate a rationale for an expenditure which is “necessary and incident” to an existing authority. As a
last resort, OSD may approve the expenditure of funds as a necessary and proper exercise of the
President’s Article II authority to conduct foreign policy or command the nation’s armed forces [this latter
approach is highly controversial, but has been used to justify expenditures for several recent operations
where specific statutory authority was unavailable - at a minimum, JCS/OSD level approval is required
prior to invoking this rationale].

BASIC FISCAL CONTROLS ON APPROPRIATED FUNDS

Congress has imposed fiscal controls through three basic mechanisms. Each is implemented by one
or more statutes. The Comptroller General of the U.S., who heads the General Accounting Office (GAO),
regularly audits executive agency accounts and scrutinizes compliance with the fiscal controls imposed by
Congress. 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 adopted by Congress for these controls is the Antideficiency Act (ADA).
See 31 U.S.C. § 1341(a), 1514(a). 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.

THE PURPOSE STATUTE -- GENERALLY

Although each of the above basic controls on the use of appropriated funds is important, the control
which becomes an issue most often during military operations is the purpose control. Expenditures from an
appropriation must be reasonably related to the purpose of that appropriation. 31 U.S.C. § 1301(a). The
Comptroller General stated the test for a proper purpose in Secretary of the Interior, B-120676, 34 Comp.
Gen. 195 (1954):

(1) An expenditure must be for the particular purpose of the appropriation or for a purpose that is necessary and
incident to the general purpose of the appropriation.
(2) The expenditure must not be prohibited by law.
(3) The expenditure must not be otherwise provided for; it must not fall within the scope of some other
appropriation.

The GAO applies the Purpose Statute to military operations. See To The Honorable Bill Alexander,
B-213137, 63 Comp. Gen. 422 (1984) [hereinafter Honduras I]; The Honorable Bill Alexander, B-213137,
Jan. 30, 1986 (unpub.) [hereinafter Honduras II].

Augmentation of an Appropriation Generally Is Prohibited

A corollary to the purpose statute's control on appropriated funds is the general 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 to pay for an effort for

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which Congress has specifically 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, absent legislation
to authorize the change. Recording Obligations under EPA Cost-Plus-Fixed-Fee Contract, B-195732, 59
Comp. Gen. 518 (1980), rev'd on other grounds, 61 Comp. Gen. 609 (1982).
There are a few statutory exceptions to the prohibition on augmentations. For instance, DOD may
expend its 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. See
also 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)
(discussed below).
Another way Congress authorizes the lawful augmentation of accounts is to enact special interagency
transaction authorities. These authorities limit or eliminate standard reimbursement requirements between
agencies. The FAA (mentioned above and described below in more detail) and U.S. counterdrug policy
provide good examples of this principle. For example, Congress has authorized certain expenditures for
military support to civil law enforcement agencies (CLEAs) in counterdrug operations. [See Chapter 22 for
a detailed description of these authorities.] Training is one of DOD's primary Operations and Maintenance
(O&M) funded missions. In the law authorizing DOD's support for CLEAs, Congress provided that support
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 USC §
377. In another statutory provision, §1004 of the 1991 DOD Authorization Act (as amended) [See Notes,
10 USCA § 374.], Congress authorized operations or training to be conducted for the sole purpose of
providing CLEA’s with specific categories of support. Finally, in 10 USC § 124, Congress assigned DOD
the operational mission of detecting and monitoring international drug traffic (a traditional CLEA function).
By authorizing DOD support for CLEA missions, essentially at no cost to CLEAs, Congress has provided
authority for the augmentation of CLEA appropriations through the assistance provided by DOD's training
operations (through the expenditure of O&M funds).
Other statutes which provide DOD authority to accomplish missions primarily assigned to other
executive departments (“non-traditional DoD missions”) include: 10 USC § 402 (transportation of
humanitarian supplies), 10 USC § 404 (foreign disaster or refugee relief), and 10 USC §2551 (other
humanitarian support). All of these purposes are also accomplished through foreign assistance
appropriations, which are generally administered by the Department of State. See Chapter 23 & 24 for
further discussion of these authorities.
There is no specific statute prohibiting augmentations. The prohibition flows from several statutory
provisions which implement Congress' control of government funding. In the Honduras II opinion, the GAO
described the concept in this manner:
Because congressional authority is largely asserted through the appropriations process, the Congress places great significance
on the rules that govern the use of appropriations by Federal agencies. It has devised specific measures to ensure that those
rules are followed, and that, for instance, programs in one area are not supported by appropriations intended to be used
elsewhere. E.g., 31 U.S.C. § 1301(a), 1341(a), 1532. Honduras II at 2.

DOD Appropriations and their Purposes

Operation & Maintenance (O&M) Appropriations. These appropriations pay for the day-to-day expenses
of DOD components in garrison and during exercises, deployments, and military operations. O&M
appropriations may be expended for all “necessary and incident “ operations and maintenance expenses.
They are subject, however, to specific statutory limitations. For example, end items costing over
$100,000, or which are centrally managed within the supply system, may not be purchased with these
funds. Additionally, exercise-related construction of permanent facilities, during exercises coordinated or
directed by the Joint Chiefs of Staff outside the U.S., or any construction in excess of $500,000, may not
1
be funded with O&M appropriations.

1
10 U.S.C. § 2805. But see, infra, the text under the subheading O&M Appropriations -- Use During Deployments and Contingency
Operations for a discussion of the possible expansion of O&M fund uses during contingency operations.

12-3
Military Construction (MILCON) Appropriations. Congress has extensive and pervasive oversight programs
in place for MILCON appropriations. Virtually all construction projects costing more than $1.5 million
require specific prior approval by Congress. Additionally, 41 U.S.C. § 12 provides that no public contract
relating to erection, repair, or improvements to public buildings shall bind the Government for funds in
excess of the amount specifically appropriated for that purpose. Nevertheless, there is also an Unspecified
Minor Construction Program for minor construction projects within each military department and within
DOD agencies. Money for these unspecified minor construction projects is set aside within each MILCON
appropriation. The services use this money (normally a relatively small amount) for projects costing less
than $1.5 million without specific congressional approval.

Procurement Appropriations. These appropriations fund purchases of investment end items of equipment
(presently those costing more than $100,000), and items that are centrally managed within the supply
system.

Other Appropriations. DOD receives dozens of other appropriations, each with its own fund citation and
specific purpose. In an operational environment, however, the appropriations most likely to be
encountered are those noted above. Additional guidance on the use of the O&M and MILCON
appropriations is provided below.

THE PURPOSE STATUTE -- SPECIFIC MILITARY OPERATIONAL ISSUES

The above discussion of the Purpose Statute provides an overview of how this control mechanism
applies to DOD operations. More specific applications of the Purpose Statute to military operations are
described below.

The Funding Spectrum in Current Operations

S p e c tru m o f O p e ra tio n s

W AR P eace

M ilita r y S u pp o rt to F o re i g n D ip lo m a c y
C om bat
S e c u r ity F o re i g n C i v i l A id p u re
Tng
p u re A s s is t a n c e A u th o r it ie s R efu g ee T i t. 2 2
ti t. 1 0 A s s is t a n c e
I M E T /F M S D is a s te r
( M i li ta r y T N G
a n d A rm s s a l e s )
R e lie f
H A P /E S F
ti t 1 0 /t it. 2 2

Military fiscal authority can be analyzed across the spectrum of operations, based on a simple
purpose statute analysis. As you move from right to left on the spectrum, the military funding authority
becomes stronger, and the military purpose more clear. From left to right, the benefit to another country
or group within a country increases, and the military practitioner must look for positive legal authority to
justify military expenditures. It is important to understand where you are on this spectrum to answer the
fiscal law questions and establish a valid rationale for the expenditure. [For example, you may conduct joint
training in a given country for national security reasons, and still provide a benefit to the host country

12-4
via de minimis Humanitarian and Civic Assistance activities.] Congress has increased the complexity of the
analysis by authorizing all sorts of “non-traditional military activities” with specific legislation (i.e., Disaster
Relief and Humanitarian Airlift provisions). Foreign Aid, funded and administered by DOS or USAID under
the authority of Title 22, is at the other end of the spectrum in the purpose statute analysis.

Method of Analysis:

The attorney can assist in the accomplishment of the mission, by guiding the staff and the commander
to the appropriate fiscal authority. The following method of analysis is intended to assist the OPLAW
Attorney, in conjunction with the operator, the comptroller, and the logistician, in recommending a course of
action to the commander:

(1) Determine the Commander’s Intent

(2) Define the Mission (both the organization’s assigned mission and the specific task to be
performed)
(3) Break it down into Discrete parts (Specified and Implied Tasks)
(4) Find Legislative Authority and/or Appropriated Funds
(5) Articulate the Rationale for the Specific Expenditures, and
(6) Seek Approval from Higher Headquarters, where necessary.

The lawyer’s challenge is to match a specific legislative authority with each expenditure of funds. The
lawyer and the comptroller may even have to go farther, and look at the line-item appropriation to
determine the Congressional intent. Then the real challenge is to articulate the rationale for the
expenditure (in message traffic or memorandum form), to persuade the next higher headquarters to
approve the expenditure [or to justify an expenditure that the commander approves to the next auditor or
GAO investigator]. Get help from higher headquarters when you can, but be prepared to explain the cold
hard facts to your commander so that he can make the risk/benefit analysis that he is paid to make.

SPECIFIC FUNDING AUTHORITIES:

The following fiscal authorities are available to conduct military operations. Each authority reflects a
specific legislative intent, which must be articulated by the military practitioner, in order to justify the
expenditure.

O&M Appropriations -- Use During Deployments and Contingency Operations

Deploying units normally rely on O&M appropriations available to support their deployment operations.
Attorneys, finance officers, contracting personnel, and others charged with responsibility in the funding of
unit operations must be familiar with commonly encountered fiscal controls on appropriated funds,
particularly the O&M accounts, and verify the amounts and types of funds available.

O&M 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, repair of essential Main Supply Routes (MSR’s), as well as those expenses “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”(prior to the return of a viable Aristide government)]. Where the military mission begins
to stray from combat, or combat-related functions, and begins to intersect with other agencies’
authority/appropriations, the expenditure bears close scrutiny by the Judge Advocate (e.g., “nation-
building” activities, or refugee assistance - both traditional foreign assistance responsibilities, administered
by the State Department or USAID).

[Note: The Deputy General Counsel of the Army for Fiscal Law & Policy has opined that O&M funds are
the “appropriate funding source to acquire materials and/or cost of erection of structures during combat or
contingency operations, as defined in 10 U.S.C. § 101(a)(13), that are clearly intended to meet a
temporary operational requirement to facilitate combat operations.” The memorandum also provides that

12-5
“operations funds are the appropriate funding source to acquire weapons from indigenous or opposing
forces under the ‘Cash for Weapons’ program.” The basis for these opinions is that O&M funds are the
primary funding source supporting combat operations; therefore, if a unit is fulfilling legitimate requirements
necessitated only by the combat operation, then O&M appropriations are the proper funding source. See
TJAGSA Practice Notes, Contract Law Note: Funding Issues in Operational Settings, Army Law., Oct.
2 3
1993, at 38. Example: Road work by engineers during Operation Restore Hope.
Analysis of whether combat construction is "temporary" should focus on the duration and purpose of a
facility's use by U.S. forces, not on the materials used in the construction. A brick latrine may meet a
4
temporary need for a latrine facility which affords its occupants some protection from sniper fire. Normal
funding rules apply in all other situations, including the funding of construction for which the U.S. would have
a follow-on or contingency use after the termination of the military operations necessitating the
construction.]

Feed and Forage Act (41 U.S.C. § 11 & 11a) provides special obligational authority. The act permits DOD
and the Coast Guard to contract for clothing, subsistence, forage, fuel, quarters, transportation, or medical
and hospital supplies for the current fiscal year, even in the absence of an appropriation (i.e., this is a
special authority to spend in advance of normal O&M appropriations). Notice to Congress is required. On
August 24, 1990, the SECDEF invoked the provisions of 41 U.S.C. § 11 to support Desert Shield.

Emergency and Extraordinary (E&E) Expenses (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. However, numerous regulatory controls apply to prevent abuse,
including Congressional notification requirements for expenditures over $500,000. See DOD Dir. 7250.13,
Official Representational Funds (Mar. 22, 1985); AR 37-47, Contingency Funds of the Sec'y of the Army
(Jan. 15, 1990).

Secretarial Contingency Funds (10 U.S.C. § 127a) provide the SECDEF with authority to fund the
incremental costs of contingency operations, including humanitarian assistance, disaster relief, or support
for law enforcement (immigration) [$1.1B appropriated for FY 97 was quickly consumed in Bosnia]. Allows
for waiver of DBOF reimbursement and transfer authority to service O&M accounts to reimburse operating
funds for expenses incurred.

CINC Initiative Funds (CIF) (10 U.S.C. § 166a) are O&M funds available for special training, humanitarian
assistance, civic assistance, and other selected operations which are unforeseen contingency requirements
critical to CINC joint warfighting readiness and national security interests. See CJCSI 7401.01, 11 Jun
1993 (detailing procedures for CJCS approval of these expenditures). The CINCs also receive O&M
funding, through the services, for “Traditional CINC Activities” (TCA) like military-to-military contacts, joint
training, regional conferences, based on these and other Title 10 authorities discussed below. See also
discussion in Chapters 23 and 24 on CIF and TCA, respectively.

Congress regularly earmarks funds within annual O&M appropriations to be used only for specific
purposes. For instance, DOD receives part of its O&M funds earmarked for use in providing humanitarian
and civic assistance under 10 U.S.C. § 401(c). Such earmarked appropriations require separate fiscal
accounting. DOD may not use general O&M appropriations for the same purposes as the funds
earmarked for specific purposes within an annual authorization or appropriations act. See, e.g.,
Department of Defense Appropriations Act, 1997, Pub. L. No. 104-208, Title II, 110 Stat. 3009 (1996)
($49,000,000 provided for Humanitarian Assistance Programs during FY 1997).

2
Before relying on this analysis, please note that the use of this policy is restricted to “combat operations”, as opposed to the much
broader “contingency operation” setting referred to in the practice note.
3
The reader should be cautioned that this exception is based on policy, not law or regulation. Any decision to use this exception should
be coordinated with higher headquarters.
4
Compare “temporary construction” analysis in Military Construction section, below.

12-6
Military Construction -- A Special Problem Area

As noted above, congressional oversight of military construction is extensive and pervasive. Specific
approval is required for any project in excess of $1.5 million. Funds for such larger projects, known as the
Specified Military Construction Program, are provided in the annual MILCON appropriations.

The Unspecified Minor Construction Program:

MILCON appropriations also fund part of the Unspecified Minor Military Construction Program,
through which Congress provides annual funding to DOD and the military services for minor construction
projects that are not specifically approved in a MILCON Appropriations Act. Pursuant to the unspecified
minor construction authority of 10 U.S.C. § 2805(a), the Secretary concerned may use minor military
construction funds (known as Minor Military Construction, Army, or MMCA funds for the Army) for minor
projects not specifically approved by Congress.

(1) This authority is limited to $1.5 million for each project. Because 10 U.S.C. § 2805(c)
permits the use of O&M funds for construction below $500,000, DOD has elected to use minor
military construction funds only for projects in the $500,000 to $1.5 million range, except during
JCS-controlled exercises outside the U.S.

(2) Statute and regulations require approval by the Secretary of the department and notice to
Congress before commencement of any minor military construction project exceeding $500,000.

(3) Besides projects costing between $500,000 and $1.5 million, minor military construction
funds (MMCA for Army) also pay for all permanent construction during JCS-coordinated or
directed exercises conducted outside the U.S. See 10 U.S.C. § 2805(c)(2). The authority for
such 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
completely removed once the exercise is completed. Units may continue to fund these through
the O&M accounts. See below, however, regarding notification requirements if such work totals
more than $100,000.

O&M: Most installations and deploying units are funded only with O&M appropriations, which are not
available for construction work, except as specifically authorized by law. They must request MILCON or
minor military construction funds from higher headquarters.

(1) 10 U.S.C. § 2805(c) authorizes use of O&M funds for unspecified minor military construction
projects, but limits this authorization to $500,000 per project. O&M appropriations are normally
the source of funds for the portion of the unspecified minor military construction program below
the $500,000 per project level. See AR 415-15 (30 Aug. 1994); AR 420-10 (2 July 1987).

(2) Projects must have a funded cost of $500,000 or less to be paid for with O&M funds.
Funded cost refers to the "out-of-pocket" cost of a project, such as contract costs, TDY costs,
etc. It does not include the salaries of military personnel, depreciation on equipment, and similar
"sunk" costs. The cost of fuel used to operate equipment is a funded cost. Although unfunded
costs do not count toward the statutory ceilings applicable to the different types of construction
funds, records of unfunded costs are kept, and these figures are reported to higher
headquarters.

(3) Project splitting is prohibited. An agency cannot treat "clearly interrelated" construction
activities as separate projects. Honduras II, p. 22.

12-7
 DOD must notify Congress if construction (temporary or permanent) exceeding $100,000 will be done
during any exercise. See Military Construction Appropriations Act, 1995, Pub. L. No. 103-307, § 113, 108
Stat. 1659, 1664 (1994).
Military construction, as defined in 10 U.S.C. § 2801 and AR 415-35, includes any construction,
development, conversion, or extension of any kind 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.) (project splitting is prohibited). Minor military construction,
whether accomplished with O&M or MMCA funds, is a single undertaking at a military installation with an
approved cost equal to or less than $1.5 million. Examples of construction ( see AR 415-15, Glossary,
sec. II, Terms):

(1) The erection, installation, or assembly of a new facility.

(2) A change to a real property facility, such as addition, expansion, or extension of the facility, that 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 includes the cost of installed equipment that is 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 recurrent 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 Eng'g & Housing, sec. II, Terms (July 2, 1987).
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. AR 420-10, sec. II, Terms.
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.

Methodology for analysis of 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.

Examples:

1. A US Army unit deploys to central Europe at the request of a newly-elected democratic

government. It occupies 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 that the work involved
will include: (a) replacement of the roof, the flooring, several interior walls, and the heating system ($1.1
million); (b) repair of numerous other failing components of the building ($450,000); (c) installation of a new
central air-conditioning unit ($150,000); and (d) construction of 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 and funded locally. Is the Division Engineer right? No. A
conversion is construction by definition. All work is required for the conversion of this building to an

12-8
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.

2. The road to the division fuel supply point is in urgent need of repair. The division's training tempo
increased substantially last year, so the road has been getting greater use by heavier vehicles than it was
designed to handle. Heavy delivery trucks used by the fuel supplier with the current contract for diesel fuel
and gasoline have been breaking up the road. The Division Engineer believes that, in addition to filling up
the holes in the road, two additional inches of asphalt should be added to support the increased and
heavier traffic. The Division Engineer estimates that a paving contractor will charge $530,000 to fill the
holes and add two inches of asphalt. The Division Engineer insists that O&M funds can 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.

3. What if the road in Example 2 is located in Northern Saudi Arabia in February 1991? The work
under these circumstances is clearly not part of an effort to improve post infrastructure; apparently it is
needed to support ongoing combat operations. Therefore, this work is more likely to qualify as a repair.
Even if it is considered construction, and even if the cost of the two inches of additional asphalt exceeds
$500,000, the work may fall within the scope of the potential expansion of the use of O&M funds during
combat operations discussed above in the O&M Appropriations -- Use During Deployments and
Contingency Operations section 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. Such projects are funded with any unobligated military construction and family housing
appropriations. On November 14, 1990, President Bush invoked emergency construction authority under
10 U.S.C. § 2808 for support of Operation Desert Shield. See Executive Order 12734 of November 14,
1990, 55 Fed. Reg. 48099. Other emergency construction authorities available under existing law include:

Emergency Construction, 10 U.S.C. § 2803. Requirements: 1) notice to congressional appropriations

committees; 2) determination that project is vital to national defense; 3) a twenty-one day waiting period after
notification before project begins; and, 4) total amount expended must not exceed $30 million in any fiscal year,
and the funds must be obtained by reprogramming money already appropriated but not yet obligated for military
construction.

Contingency Construction, 10 U.S.C. § 2804. Requirements: 1) notice to congressional appropriations

committees; 2) project justification; 3) a twenty-one day waiting period after notification before project begins;
and 4) obtain funds from monies already appropriated for military construction, but not yet obligated.

During Operation Desert Shield, these authorities were not timely exercised. Future operational plans
should include provisions to exercise these authorities immediately upon execution, so construction and
improvement of logistics facilities can commence immediately with the proper appropriations.

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, military-to-military contact, and exercise programs. The main thrust of these authorities is to

12-9
fund U.S. costs of preparing and conducting combined training, as well as paying selected incremental
costs for our training partners. [See also Chapter 24, Security Assistance]

Bilateral and Multilateral Contacts:

5 U.S.C. § 4109-4110; 31 U.S.C. § 1345(1); 37 U.S.C. § 412 (Travel). Travel to conferences and site
5
visits are supported with a variety of statutory authorities. U.S. civilian employees and Military personnel
are authorized to expend US 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 conduct 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
country’s personnel.

Regional Cooperation Programs:

6
Partnership for Peace activities are authorized by existing authorities, outlined above; $109M ($49M
DoD and $60M DOS) was provided for FY 97.
Cooperative Threat Reduction with States of the Former Soviet Union (FSU) (“Nunn-Lugar”)
7
provides funds for various programs to dismantle the FSU’s arsenal of weapons of mass destruction;
$327.9M appropriated for 97.

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 Assistance (OHDCA) Operations

5
31 U.S.C. § 1345 requires a specific appropriation for travel, transportation, and subsistence expenses for meetings. See also 62
Comp. Gen. 531 (1983).
6
See H.R. Conf. Rep. No. 747, 103d Cong., 2d Sess. 63 (1994)
7
DoD Authorization Act for FY 97, Pub. L. 104-201 § 1453 (1996). But see §§1501-1504, prohibiting use of funds for peacekeeping
exercises, housing, environmental restoration or job training.

12-10
 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, 1997, Pub. L. No. 104-208, Title II, 110 Stat. 3009 (1996) ($49M provided for all
programs conducted under the authority of 10 U.S.C. §§ 401, 402, 404, 2547, and 2551 during FY 1997).
[See also Chapter 23, Humanitarian and Foreign Disaster Assistance]

Primary responsibility for Humanitarian, Refugee. and Disaster Relief operations lies with the Department
of State, through the U.S. Agency for International Development (USAID) and other subordinate 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 as he determines appropriate pursuant to the Foreign
Assistance Act (FAA) §§ 491-496 (22 U.S.C. §§ 2292-2292q). See Foreign Assistance Appropriations Act
for FY 97, Pub. L. 104-208, Title II, 110 Stat. 3009 (1996) ($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. [Note: no contracting is permissible under Drawdown authority.]
FAA § 506(a)(2) (22 U.S.C. § 2318(a)(2))(Emergency Drawdown) The President may also require any
US Government agency to provide support to counterdrug activities, disaster relief, or migrant and refugee
assistance efforts of other federal agencies through an FAA § 506 drawdown, up to $150M per year.
[Note: 506(a)(2) Drawdown for counterdrug activities and POW accounting are limited to $75M and $15M,
respectively; 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 assigned responsibilities for refugee
support in the Migration and Refugee Assistance Act of 1962. See Foreign Assistance Appropriations Act
for FY 97, Pub. L. 104-208, Title II, 110 Stat. 3009 (1996) ($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
decided in the Honduras I opinion that DOD's extensive use of O&M funds to provide HCA violated the
Purpose Statute (31 U.S.C. § 1301(a)) and other well-established fiscal principles. The GAO concluded
that DOD had used its O&M accounts improperly to fund what was essentially 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:

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 widely used to analyze fiscal law problems. Applying it to the military construction,
training and HCA operations conducted in Honduras in 1983, the GAO disapproved certain
expenditures using O&M funds which were reasonably related to DOD purposes (that is,
expenditures which achieved "readiness and operational benefit" for DOD), but which failed the
other tests. The GAO determined that the otherwise valid 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 which 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). Honduras II at 27-30. The opinion did recognize,

12-11
however, that limited HCA was permissible, using 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 (defining de minimis
HCA). It is this controversy which spurred the development of separate legislative authority to
conduct humanitarian activities.

DOD Statutory Authorities:

10 U.S.C. § 401 (HCA) provides for Humanitarian and Civic Assistance (HCA) projects, approved in
coordination with the Combatant CINCs and DOS, which improve operational readiness skills of
participating U.S. forces and are conducted in conjunction with military operations [HCA projects are often
conducted during JCS-directed exercises, or deployments for training]. Section 401 was recently
expanded to include authority for training host nations in the removal of land mines; this section limits .
See, 10 U.S.C. § 401(e)(5).
10 U.S.C. § 402 (Transportation) DOD may transport supplies provided by nongovernmental sources
without charge on a space-available basis. DOD cannot use this authority to supply a military or
paramilitary group.
10 U.S.C. §404 (Foreign Disaster Assistance) The President may direct SECDEF to provide disaster
assistance outside the U.S. 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 authority to provide disaster relief to 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 be
made available for humanitarian relief to DOS, who 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 may also 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.” This permits payment of all costs, including contracts if necessary,

JA’s Role: The JA's primary role during military operations that involve disaster relief, humanitarian, or
refugee support operations is to ensure mission accomplishment within the constraints of current law. This
is the most difficult area of fiscal law practice. 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. 10 U.S.C. § 127a Contingency Funds, 166a CINC Initiative Funds (CIF), and Traditional CINC
Activity funding (TCA) provide secondary sources. The JA must ensure that problems are identified during
exercise planning and avoided. After-the-fact justifications which stretch the DOD authorities risk GAO
scrutiny and adverse ramifications for those who seek to circumvent congressionally-imposed limitations.

Supporting Multilateral Peace and Humanitarian Operations

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, PDD-25 emphasizes the necessity of reducing costs for UN
peace operations, reforming UN management of peace operations, improving U.S. management and
funding of peace operations (including increased cooperation between the Legislative and Executive
branches). The U.S. will generally 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 U.S. may contribute goods, services, and funds on a voluntary basis, waiving
reimbursement. DOS has responsibility for oversight and management of Chapter VI operations where
U.S. combat units are not participating; DoD has responsibility for Chapter VI operations in which U.S.
forces are participating and all Chapter VII operations. [See generally Chapter 25, Peace Operations.]
Authorities: Much like Disaster Relief and Refugee support, DOS has the lead in providing support to 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.
th
Rep. 863, 104 Cong., 2d Sess. 536 (1996) (DOS provided $65M to support PKO). Other than the

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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 § 8092 of the
DOD Appropriations Act for FY 97, Pub. L.104-208 (1996), DoD is also required to 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 contain
Congressional notification requirements. In practice, DOD is providing blanket notifications for all PKO or
Humanitarian operations where goods or services are being transferred to other nations or international
organizations. The President has expressed concern to Congress over the apparent infringement on his
Constitutional powers as Chief Diplomat and Commander-in-chief. Statement of 30 November, 1995

UN Participation Act (UNPA) § 7 (22 U.S.C. 287d-1) authorizes support to the UN, upon their 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 may also 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.”
Bosnia Drawdown Authority - up to $100M of DOD articles and services to assist the government of
Bosnia-Herzegovina in self-defense. Foreign Operations, Export Financing, and Related Programs Act of
1996, Pub. L. 104-107, § 540 (1996). See also DOD Authorization Act for FY 97, Pub. L. 104-201 § 1083
authorizing “most favorable pricing” for the drawdown support.
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 a similar detailing to international organizations, to serve on their staff, or provide
technical, scientific, or professional advice or services. Detailed individuals are not allowed to take an oath
of allegiance or accept compensation - per § 630 of the FAA (22 U.S.C. § 2390). 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 country’s 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.
104-164 (1996).
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 provisions of a “607 Agreement” with the nation or organization,
detailing the procedures for obtaining such support; DOS must delegate authority to DOD to negotiate
these agreements. FAA § 632, authorizing transfer of funds from DOS, and the Economy Act, discussed
below, 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

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countries or international organizations - reimbursement usually includes administrative overhead, under
Defense Security Assistance Agency (DSAA) procedures. [See Chapter 24, Security Assistance.]
10 U.S.C. §§ 2341-2350 (Acquisition and Cross Servicing Agreements (ACSAs)) This provides DOD
authority to acquire logistic support without resort to commercial contracting or FMS procedures and to
transfer support outside of the AECA. Under the statutes, after consultation with DOS, DOD may enter
into 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 - check with Combatant CINC to determine if they are administering an
ACSA for the subject country within the AOR; JCS must approve new negotiations.

Security Assistance

Funding for aid to foreign armies is specifically provided for in foreign assistance appropriations. Transfers
of defense items and services to foreign countries is regulated by the Arms Export Control Act. 22 U.S.C.
§§ 2751-96. See also DOD Reg. 7000.14-R, Financial Mgmt. Reg., vol. 15, Security Assistance Policy
and Procedures (Mar. 18, 1993). Providing weapons, training, supplies, and other services to foreign
countries must be done in compliance with 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 Assistance
Agency (DSAA) manages the process of procuring and transferring defense articles and services to
foreign countries for the State Department. This process provides for reimbursement of the applicable
DOD accounts from appropriated 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)

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

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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 and efforts to defeat
communism. See 22 U.S.C. § 2301. The purposes served through 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 agency's appropriations to another agency's appropriations.
That is, an authorized augmentation of accounts occurs whenever Congress authorizes recovery of less
than the full cost of goods or services provided. The authorized augmentation occurs because, under
generally applicable fiscal principles (the Purpose Statute and the Economy Act), full cost recovery is
required.

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 sources referenced 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
Department's counterdrug activities by providing that when DOD provides 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.

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 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 flexible standard of reimbursement for interagency
transactions is applicable when any other federal agency supports State Department foreign assistance
(not military or security assistance) objectives for developing countries under the FAA.

[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 National
Defense Authorization Act for Fiscal Year 1991, Pub. L. No. 101-510, §§ 1001-11, 104 Stat. 1485, 1628-
34 (1990) (providing general authority for DOD to engage in counterdrug operations); see also National
Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, § 1011, 108 Stat. 2663, 2836
(1994) (extending DOD's counterdrug authority through FY 1999).

The reimbursement standards for DOD in 22 U.S.C. § 2392(c) are interpreted in the DOD Accounting
Manual (DOD Manual 7220.9-M). When DOD provides services in support of State Department
counterdrug activities, the manual permits "no cost" recovery when the services are incidental to DOD
missions requirements. The manual also authorizes pro rata and other cost sharing arrangements. See
DOD Manual 7220.9-M, ch. 26, para. G.2.c.

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

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 $100,000,000, to remain available until expended, to reimburse current appropriations
used for supplies and services in anticipation of requests from other agencies for disaster assistance.
Department of 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 DOD's ability to
use DERF funds, to make this appropriation available after 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.
Department of 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.

The Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. §§ 5121-5203) authorizes the
President to direct federal agencies to provide assistance essential to meeting immediate threats to life or

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property resulting from a major disaster, with or without reimbursement. 42 U.S.C. §§ 5170a & 5170b.
Agencies may immediately incur obligations by contract or otherwise in such amounts as are made
available to them by the President. 42 U.S.C. § 5149(b). Federal agencies may receive reimbursement
for their relief efforts if the Federal Emergency Management Agency (FEMA) requested 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. [See also Chapter 21, Military Support to Civil Authorities.]

Correcting Purpose Act Violations

Finally, and importantly, improper expenditures of appropriated funds must be rectified. Improper
expenditures can be rectified by identifying a proper source of appropriated funds, and transferring funds
from it to the appropriation improperly used. Even when this is accomplished, it is possible an
8
Antideficiency Act violation has occurred. Improper uses of appropriated funds can be corrected without
a violation of the Antideficiency Act only if the proper funds were available at the time of the use of the
improper use of funds and the proper funds were available in an adequate amount at the time of the actual
funding adjustment to correct the improper use of funds; and if the improper use of funds did not violate
any statutory limitation on the use of funds, or a regulatory limitation on the use of funds that amounts to a
9
formal subdivision of funds. Even when an Antideficiency Act violation is unavoidable, however, an
accounting adjustment to charge the proper appropriation still is required.

AVAILABILITY OF APPROPRIATIONS AS TO TIME

Although Congress appropriates to executive agencies some funds that are available until expended,
most appropriations are available for limited periods. If funds are not obligated during these periods of
availability, they expire. Expired funds are unavailable for new obligations (e.g., new contracts), but they
may be available for adjustments to existing obligations (e.g., paying for an unexpected price increase
under an existing contract). Appropriations have different periods of availability:

Operation and maintenance -- 1 year.

Procurement -- 3 years.
10
Construction -- 5 years.

The bona fide need rule states that appropriations are only available to support needs arising during
their periods of availability. See 31 U.S.C. § 1502(a) (the bona fide need statute). Existing contracts
generally may be completed using appropriations current when they were awarded, even if performance
extends beyond the end of the fiscal year (the fiscal year ends at midnight each September 30th).
However, new requirements added to a contract (as distinguished from adjustments for price changes for
work originally encompassed within a contract's scope) must be funded with current appropriations
regardless of the money used for the original obligation. For service contracts, the need for the services
generally is considered to arise at the time the services are performed, not when the contract is awarded.
Therefore, the bona fide need rule generally requires new funding for services performed on or after
October 1st of each new fiscal year. Certain statutory exceptions to this general rule are provided in 10
U.S.C. § 2410a.

8
See infra text under the heading Availability of Appropriations as to Amount.

9
An example of such a regulatory restriction is the current $100,000 per item limitation on the use of O&M funds for the purchase of
supplies. See DOD Manual 7110-1-M, Budget Guidance Manual, para. 241.4.C.1.f. (May 1990).

10
Although the appropriation life of MILCON appropriations is five years, Congress has limited DOD's authorization to spend
MILCON appropriations to three years in recent Authorization Acts. See Military Construction Authorization Act for Fiscal Year 1995,
Pub. L. No. 103-337, ∋ 2701, 108 Stat. 2663, 3046 (1994).

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 Overstocking supplies at the end of a fiscal year violates the bona fide need rule. Purchases should
cover only current year needs, and any inventory needed to cover the lead time before deliveries begin
under contracts placed in the next fiscal year.

AVAILABILITY OF APPROPRIATIONS AS TO AMOUNT

Deploying forces must determine the amount of funds necessary and available to support their
operations before deploying, and seek additional funds of the proper type for the purposes needed before
or during the deployment as requirements develop. The amount available for deployment requirements will
depend on the amount of funds allocated by higher headquarters. See 31 U.S.C. § 1514(a) (requires
agencies to subdivide and control congressional appropriations). Agency regulations govern the uses of
and controls over appropriated funds to avoid obligations and expenditures in excess of the amount of
funds available for a particular purpose. See DFAS-IN 37-1; DFAS-IN Manual 37-100-XX (the "XX" is the
current fiscal year).

The Antideficiency Act (31 U.S.C. §§ 1341(a) & 1517(a)) prohibits any government officer or
employee from:

(1) Making or authorizing an expenditure or obligation in excess of the amount available in an appropriation.
(2) Making or authorizing expenditures or incurring obligations in excess of formal subdivisions of funds; or in excess of amounts
permitted by regulations prescribed under 31 U.S.C. § 1514(a).
(3) Incurring an obligation in advance of an appropriation, unless authorized by law.
Accepting voluntary services unless otherwise authorized by law. 31 U.S.C. § 1342.

Regulations require investigation of suspected ADA violations. DOD 7000.14-R, Financial

Management Regulation, Vol. 14, DFAS-IN 37-1, ch. 7. These regulations also prescribe guidance for the
conduct of investigations. If a statutory violation occurs, the agency must investigate to determine the
senior responsible individual, report the circumstances and the individual's name to Congress through the
ASA(FM) and DOD Comptroller, and impose administrative and/or criminal sanctions on that individual. No
one is exempt. Lawyers, commanders, and resource managers have been found to be senior responsible
individuals. Common problems that have resulted in ADA violations have included:

(1) Incurring obligations in advance of an appropriation (e.g., before passage of a new appropriations act or other spending
authority (like continuing resolution authority) at the beginning of a new fiscal year).
(2) Exceeding the amount of a statutory funding limitation (e.g., a construction project exceeding $300,000 funded with O&M
money).
(3) Obligating funds for purposes expressly prohibited by an annual or permanent limitations on uses of appropriated funds.

THE ECONOMY ACT

The Economy Act, 31 U.S.C. § 1535, provides general authority for federal interagency transactions.
It authorizes interagency transactions when no other statute permits the providing agency to render the
requested service, and when the requested service is not one for which the providing agency has already
received funds. Merit Sys. Protection Board--Travel Expenses of Hearing Officers, B-195347, 59 Comp.
Gen. 415 (1980). Funds normally are transferred between the military services and between DOD and
other agencies using a Military Interdepartmental Purchase Request (MIPR), DD Form 448.

The Economy Act is not applicable to interagency transactions conducted under the authority of the
FAA because the latter contains internal interagency transactions authorities. 22 U.S.C. § 2392(c) & (d).

The Economy Act mandates full reimbursement to the providing agency, including indirect costs
incurred by that agency to provide the requested service. Augmentation occurs if less or more than the full
applicable costs are reimbursed to the providing agency (57 Comp. Gen. at 682-83).

Other authorities may permit reimbursement of less than the full cost of providing services to a
requesting agency, but the Economy Act requires full reimbursement from the requesting agency to the
providing agency. Because the Economy Act requires exact reimbursement, neither less nor more, it
prohibits reimbursement for costs which are properly charged to the mission of the providing agency.

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Consequently, the Economy Act does not prohibit separately funded agencies from undertaking authorized
activities which support a common goal; in fact, it prohibits reimbursement between agencies when both
have a mission and appropriations to accomplish complementary activities.

CONCLUSION

Congress limits the authority of DOD and other executive agencies to use the funds appropriated to
them. The principle controls imposed on the use of appropriated funds, the purpose, time, and amount
limitations discussed above, apply during military operations and to all other federal activities. The GAO,
service audit agencies, and the Inspectors General, monitor DOD compliance with fiscal controls on
appropriated funds. Improper uses of funds (e.g., funds used for a purpose other than that for which they
were appropriated), even if otherwise lawful, may be corrected under some circumstances, but preventive
practice by JAs accompanying deploying forces can avoid most improper uses. Funding violations may
result in adverse administrative or criminal consequences against those responsible.

REFERENCES FOR FURTHER RESEARCH

Statutes

1. Title 31, U.S. Code.

2. Annual DOD Authorization and Appropriations Acts.

Regulations

1. DOD: DOD Reg. 7000.14-R, Financial Management Regulation, vols. 1-15 (this will replace DOD
Manual 7220.9-M below, when all volumes are published, but as of March 1996, only
volumes 1, 2, 4, 5, 7, 8, 11, 13, 14, and 15 are published).
DOD Manual 7220.9-M, DOD Finance & Accounting Manual.
DOD Manual 7110.1-M, DOD Budget Guidance Manual.

2. Army: DFAS-IN 37-1.

DFAS-IN Manual 37-100-XX (the "XX" is the current fiscal year).

3. Navy: Navy Comptroller Manual.

4. Air Force: AFR 170-6.

AFR 170-8.
AFR 170-13.
AFI 65-601.
AFR 177-16.

Decisional Law Decisions of the Comptroller General of the United States (a bound reporter published by
the Government Printing Office, cited as "Comp. Gen."; agencies can request advance opinions concerning
their operations by forwarding a request through channels--see AR 37-1, para. 20-19).

Treatises

1. GENERAL ACCOUNTING OFFICE, PRINCIPLES OF FEDERAL APPROPRIATIONS LAW, 2d ed., GAO/OGC 91-5
(July 1991) (to be issued in four volumes; volumes 1 and 2 are in print as of January 1994).
2. GENERAL ACCOUNTING OFFICE, ACCOUNTING GUIDE, GAO/AFMD-PPM-2.1 (Sept. 1990).
3. GENERAL ACCOUNTING OFFICE, POLICIES AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES,
Title 7 (Feb. 1990).

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 CHAPTER 13
CIVILIAN PROTECTION LAW IN MILITARY OPERATIONS1

I. INTRODUCTION

With increasing frequency, the reports and comments of military lawyers, involved in contemporary
operations, refer to the enormous difficulty represented by civilians. Until recently, students of the law of
2
armed conflict divided their discipline into neat categories that closely tracked the Hague and Geneva
3
Conventions and several other law of war treaties.

In the last decade, however, the most frequent application of United States power occurred in diverse
operations that repeatedly defied the application of the traditional law of armed conflict. During the course
of each of these operations, military lawyers have experienced substantial difficulty finding the overall
regime or structure of laws that answers civilian specific questions.
4 5
The current term of choice used to describe these operations is Operations Other Than War (OOTW).
The obvious importance of these operations has been demonstrated by how quickly the foregoing term has
6
gained widespread use within not only the United States’ military community, but also within the wider
7
international military and civilian academic communities.

Despite the importance of OOTW and the frequency of their occurrence, they do not yet fit well into any
specific category of either public international law or the traditional law of war. Military lawyers
acknowledge this condition and turn to the only place that years of formal instruction and experience have
prepared them to turn; the mandate of Department of Defense Directive 5100.77 (DOD Dir. 5100.77).
DOD Dir. 5100.77 requires all United States Forces to abide by the “law of war in the conduct of military
8
operations and related activities in armed conflict, however such conflicts are characterized.” Although

1
For greater detail see Major Richard M. Whitaker, Civilian Protection Law in Military Operations: An Essay, ARMY LAW ., Nov. 1996.

2
Of the several Hague Conventions, 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) provide the most meaningful rules and guidance relative to the
treatment of civilians during armed conflict [hereinafter Hague IV or HR].
3
The term Geneva Conventions refers to the four conventions of 1949: The Geneva Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter GWS]; The Geneva
Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked members of the Armed Forces at Sea, Aug.
12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter GWS Sea]; The Geneva Convention Relative to the Treatment of Prisoners of War,
Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GPW]; The Geneva Convention Relative to the Protection of Civilian Persons
in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC].
4
A number of terms, such as operations short of war and military operations other than war (MOOTW), competed with OOTW for
widespread use. Today, even as OOTW gains ever greater recognition and frequency of use, its future may be threatened. See
Memorandum, General Hartzog, Commander, United States Army Training and Doctrine Command (TRADOC), subject: Commander
TRADOC Philosophy on the Term “Operations Other Than War (OOTW),” (2 Nov. 1995) (General Hartzog states that OOTW, as a term,
has “served its purpose.” He further states, now that the various operations described collectively as OOTW can be specifically
described, “we should begin to retire the term, while maintaining and enlarging the vital lessons learned in specific areas.” General
Hartzog is careful, however, to note the future importance of the operations themselves, even while stating that we need to describe them
with more precision.)
5
DEP’T OF ARMY, FIELD MANUAL 100-5, OPERATIONS chs. 2 & 13 (14 June 1993) [hereinafter FM 100-5].
6
Many nations have already published OOTW operational and/or legal manuals. See DEP’T OF ARMY ,FIELD MANUAL 100-20 (Draft),
OPERATIONS OTHER THAN WAR (30 Sep. 1994) [hereinafter FM 100-20 (Draft)]. See also THE ARMY FIELD MANUAL, Vol. 5,
OPERATIONS OTHER THAN WAR, PART 2 WIDER PEACEKEEPING (1995) (Published by the United Kingdom’s Director of General Land
Warfare).

7
INTERNATIONAL COMMITTEE OF THE RED CROSS - A GUIDE FOR PROFESSIONAL SOLDIERS, LAW OF WAR,
PREPARED FOR ACTION, 11 (Donald Dochard ed., 1995).
8
DEP’T OF DEFENSE, DIRECTIVE 5100.77, DOD LAW OF WAR PROGRAM , D.1. & E.1.a.(3) (July 10, 1979) [hereinafter DOD Dir.
5100.77].

13-1
 9
OOTW fall outside of DOD Dir. 5100.77’s mandate, the United States has a consistently complied with
10
the Law of War in OOTW to the greatest extent feasible.

In fact, this practice has been documented within and is now controlled by the Joint Chiefs of Staff
11
Standing Rules of Engagement (SROE). The SROE’s unclassified Enclosure A states that “in those
circumstances when armed conflict, under international law, does not exist, Law of Armed Conflict
principles may nevertheless be applied as a matter of national policy.” As before, however, this guidance
is translated by our leadership to mean “to the extent feasible” within the unique operational setting of each
individual mission.

During war, for example, the judge advocate can simply turn to the analytical structure built into the
Hague Conventions and the four Geneva Conventions. The drafters of these bodies of law constructed a
well thought out mental flow chart that permits the practitioner to answer legal questions by accessing the
flow chart, determining which part of the Law of War applies to his set of facts, and then applying the
12
applicable law to his query. Practitioners should be able to access the same type of mental flow chart
when dealing with OOTW problems and issues.

II. THE COMPONENTS OF CPL

CPL does not and could not represent any single domestic, international, or host nation code. Instead,
it offers an approach to the application of a wide array of existing legal regimes that provide protections for
civilians in every conceivable set of circumstances.
13
CPL is made up of a wide array of both customary and conventional legal regimes (treaties and
international agreements) and domestic law and policy. Additionally, international human rights law

9
Id., at D.1. DOD Dir. 5100.77 specifically states that its mandate applies only to “armed conflict,” as understood and defined within
International Law.
10
See Memorandum, W. Hays Parks, to The Judge Advocate General of the Army, subject: JUST CAUSE Law of War Obligations
Regarding Panamanian Civilian Wounded and Dead (1 Oct. 1990) (Mr. Parks explains that the United States was not obligated under
the formal tenets of the Law of War regarding its actions during Operation JUST CAUSE, because this action was not an international
armed conflict. He based his rationale upon the premise that the United States came to the aid of the legitimate government of Panama.
Accordingly, there was no state versus state conflict (no international armed conflict). Mr. Parks went on to state that the United States
still complied with the Law of War “to the extent practicable and feasible.”) But see United States v. Noriega, 808 F. Supp. 791, 795
(S.D.Fla. 1992), wherein, the court acknowledged the United States’ desire to characterize JUST CAUSE as something other than
armed conflict, but held “[h]owever the government wishes to label it, what occurred in late 1989-early 1990 was clearly an armed conflict
within the meaning of Article 2” of the four Geneva Conventions.
11
See SECRET CHAIRMAN OF THE JOINT CHIEFS OF STAFF , INSTRUCTION 3121.01, Standing Rules of Engagement for U.S. Forces (1
Oct. 1994) (including an unclassified portion, enclosure A, intended for wide distribution).
12
Within the GC (the “Civilian’s Convention”), military practitioners should access the following mental flow chart when seeking insight
into what portions of that convention might serve to provide protections for a particular civilian or group of civilians.

Armed Conflict?→ No:→ Law of war (LOW) does not apply.

Armed Conflict?→ Yes:→ LOW applies, but need more information

to know what portion of LOW applies.

What Type Conflict?→ Internal:→ Common article 3 protections apply.

International:→ Main part of GC applies.

If International,
What Type of Person?→ Unprotected:→ GC, Part II protections only.

Protected:→ GC, Part III protections.

13
The body of well defined and universally recognized international law, that may not be incorporated into any treaty or convention.
Dep’t of Army, Field Manual 27-10, The Law of Land Warfare 4 (18 July 1956) [hereinafter FM 27-10]. Customary law has been

13-2
provides the cornerstone of CPL, serving as the starting point for almost any CPL discussion. Finally, host
nation law also serves as an important CPL component. The extent of host nation law application is based
upon canons of public international law; and the national policy of the United States, our coalition partners,
and the international organizations under whose mandates we act.

Many of these regimes are designed to protect a particular class of civilians in a particular set of
circumstances. Some very important portions of CPL apply only during specific types of armed conflict.
14
For example, article 3, common to the four Geneva Conventions of 1949 and Protocol II Additional to the
15
Geneva Conventions (1977) both provide protection only during noninternational (internal) armed conflict.
While the remaining portions of the Geneva Conventions provide protections for civilians during the course
16
of international (state versus state) armed conflicts. In fact, with the exception of common article 3, the
four conventions of 1949 provide no protections for the victims of noninternational armed conflict.
Accordingly, of the 159 articles found within the GC (fourth Geneva Convention), only one article is devoted
to protecting civilian persons in noninternational armed conflicts.

While the presence of armed conflict (either internal or international) is the threshold event that makes
the traditional Law of War applicable, other bodies of law are triggered by a person’s status. These
regimes typically operate without regard to the state or type of hostilities. They depend only upon whether
the satisfaction of a specific definitional threshold places a person into a particular status. The 1951
17
Refugee Convention serves as an example of this type of law (providing specific protections for civilians
that fear persecution from their own government). An individual, whose circumstances satisfy the
18
Convention’s definition of a refugee, and who does not commit any act that would cause him to lose this
19 20
status is entitled to the benefit of the Convention’s protective provisions.

Several important regimes, however, establish rules that provide protection for all civilians in any area
that might be affected by military operations. These bodies of law apply without regard to the nature of
the conflict (internal versus international) or the specific class of affected civilians. In fact, these systems
21
apply without regard to any type of legal prerequisite. Any number of human rights treaties or
22
declarations serve as examples of this type of baseline law. Relative to the military operations of the

described as the fundamental rules of international law that possess “unchallenged applicability.” L. OPPENHEIM, INTERNATIONAL LAW ,
VOL . II, DISPUTES, WAR AND NEUTRALITY 520 (7th ed., H. Lauterpacht, 1955) [hereinafter Oppenheim].
14
Article 3 is one of a small number of identical, introductory articles that are found in each of the four Geneva Conventions. For
example, article 3 of the GPW is identical to article 3 of the GC.
15
The 1977 Protocol Additional to the Geneva Conventions of 1949, and relating to the Protections of Victims of Non-International
Armed Conflicts (Protocol II), opened for signature Dec. 12, 1977, U.N. Doc. A/32/144, Annex I, 16 I.L.M. 1391, 1125 I.L.M. 1391
[hereinafter Protocol II]. Protocol II was negotiated with its sibling protocol, Protocol I, The 1977 Protocol Additional to the Geneva
Convention of 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature Dec. 12,
1977, U.N. Doc. A/32/144, Annex 16 I.L.M. 1391, 1125 U.N.T.S. 3 [hereinafter Protocol I]. The United States has not ratified either of the
protocols, while 140 nations have ratified Protocol I and 131 nations have ratified protocol II (as of October 3, 1995). See ADDENDUM
TO INTERNATIONAL C OMMITTEE OF THE RED C ROSS 1994 ANNUAL REPORT (1995). In 1987, President Reagan decided not to seek
ratification of Protocol I, primarily because of objections to Articles 1, 43, 35, 39, 44, and 55 and 56
16
GC, supra note 2, at art. 2.
17
Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 [hereinafter the Refugee Convention].
The U.S. became bound by the substantive provisions of the Refugee Convention when it ratified the Protocol Relating to the Status of
Refugees, October 4, 1967, 19 U.S.T. 6257, 606 U.N.T.S. 267 [hereinafter the Refugee Protocol].
18
Id.. at art. 1.
19
Id . at art. 1B.(2)
20
Id . at arts. 3 to 34.
21
The only practical requirement for the imposition of human rights is the presence of some form of state action. Most human rights
instruments are based upon an implicit presumption that human beings need protection from the government under whose dominion they
find themselves. In fact, the historical development of humanitarian and human rights law is based upon this assumption. Ancient
scholars spoke of the right of one power to intervene in the domestic policies of another power when the second power “practiced
atrocities towards his subjects, which no man can approve.” HUGO GROTIUS, DE JURE BELLI ESTI PACTIS 438 (Whewell trans. 1853).

13-3
United States, however, the treaties or declarations of greatest import are those which the United States
has either ratified or acknowledged as reflective of customary international law.
23
In the past decade, the United States has ratified a number of important human rights treaties.
Significant examples of recently ratified treaties include The International Covenant of Civil and Political
24 25
Rights, the Convention on the Prevention and Punishment of the Crime of Genocide, and the Convention
26
Against Torture and other Cruel, Inhuman or degrading Treatment or Punishment. Some argue that the
ratification of these treaties alters the responsibilities of the United States across the entire operational
27
spectrum. Whether such a dramatic position is merited by the actual provisions of the treaty is a matter
28
for debate.

Despite the outcome of the foregoing debate, at least two things should be clear. First, military
practitioners should be fully conversant with the issues. Second, they should also fully understand our
government’s position relative to the impact of these treaties during overseas military operations

III. CPL: STRUCTURED FOR ANALYSIS

To make the process of analysis more efficient, the architects of CPL integrated its primary components
into a four tiered system. This methodology provides a simple road map for the lawyer to access the
admittedly complex body of law that provides protection for civilians during the course of contemporary
military operations. Accordingly, CPL’s four step process brings to OOTW the same type of mental flow
chart approach that is already integrated into traditional law of war conventions relative to war.

International customary and conventional law, international human rights legislation, host nation law, and
the domestic law and policy of the United States (which frequently requires the application of law from
another tier by analogy) make up the four tiers of CPL. Application of these components is controlled by
the nature and purpose of the operation, the nations involved, the status of the affected civilians, and the
policy decisions of our leadership.

22
The premier example of this type of instrument is the Universal Declaration of Human Rights. G.A. Res. 217 A(III), December 10,
1948, U.N. Doc. A/810, at 71 (1948) [hereinafter Universal Declaration] reprinted in ch. 20 this Handbook. The Declaration has been
described as having a greater “impact on world public opinion . . . than any other contemporary international instrument, including the
Charter of the United Nations.” See J. HUMPHREY, HUMAN AND THE UNITED NATIONS: A GREAT ADVENTURE 77 (1984).
23
See Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 AM. J. INT’L L. 341 [hereinafter
Henkin]. Henkin notes the United States’ ratification of a number of significant treaties, but then criticizes the U.S. refusal to admit the full
impact of these treaties.
24
International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), December 16, 1966, 21 U.N. GAOR Supp. (No. 16) at 52,
U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, 6 I.L.M. 368, entered into force for the United States (with reservations) Sept. 8, 1992
[hereinafter Civil & Political Covenant].
25
Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature Dec. 11, 1948, 78 U.N.T.S. 277,
entered into force for the United States (with reservations) Nov. 25, 1988 [hereinafter Genocide Convention].
26
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39-46, 39 U.N. GAOR Supp.
(No. 51) at 197, U.N. Doc. A/39/51, 23 I.L.M. 1027 (1984) entered into force for the United States (with reservations) September 19,
1994 [hereinafter Torture Convention].
27
See Theodore Meron, Extraterritoriality of Human Rights Treaties, 89 AM. J. INT’L L. 78-82 (1995). See also CENTER FOR LAW
AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL’ S 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). See infra, V.B. Tier One: Fundamental Human Rights Legislation, for a more detailed discussion of whether (or to what extent)
treaties like the Civil and Political Covenant alter the international obligations of the United States.
28
See Henkin, supra note 22.

13-4
IV. FOUR TIERS OF PROTECTION

TIER ONE: FUNDAMENTAL HUMAN RIGHTS LEGISLATION

TIER TWO: HOST NATION LAW
TIER THREE: CONVENTIONAL LAW OF WAR AND HUMANITARIAN LAW
TIER FOUR: LAW BY ANALOGY

A. INTRODUCTION TO THE TIERS: THE MISSION STATEMENT

None of the political leadership can tell me what they want me to accomplish. That fact, however, does not stop them from
29
continually asking me when I will be done.

Military practitioners should prepare for every operation with the same basic questions in mind. First,
they must determine to what extent civilians might be affected by the operation. They should then
determine how this might happen and what aspects of the operation are most likely to generate this
impact. The judge advocate should analyze, as the initial consideration, the purpose of the operation
(look at the mission statement).

A problem recognized by a number of senior judge advocates is that the scope of many recent mission
30
statements is less than clear. Some might argue that broad mission statements are frequently
necessary, as they permit greater flexibility during an operation’s execution phase and thereby permit the
31
operation to enjoy unresisted transition. Such flexibility might serve some undisclosed political reality; to
the lawyer, however, it just makes the job more difficult. 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
32
becomes immediately necessary. For example, in the current operations within the Former Yugoslavia,
the United States led Implementation Force (IFOR) has 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 IFOR to do things like (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
33
fundamental freedoms.”

29
An anonymous U.N. Commander en route to a Peace Operation. K ENNETH ALLARD , INSTITUTE FOR NATIONAL STRATEGIC STUDIES -
SOMALIA OPERATIONS: LESSONS LEARNED 21 (1995) [hereinafter Allard].
30
Colonel David Graham made this observation during the 1995 Worldwide Judge Advocate General’s Corps Continuing Legal
Education Conference. His comments were met with agreement by dozens of his peers. During a recent conversation with the author,
Colonel Graham repeated this statement, but noted that a number of recent operations, such as DESERT STORM and PROVIDE
COMFORT, did have clearly defined mission statements. He further noted that the ability to determine the applicable law in the later
category is remarkably easier than in the former category. Telephone interview with Colonel David E. Graham, Chief, International and
Operational Law Division, Office of the Judge Advocate General’s Corps (Army) (Nov. 2, 1995).
31
The original “mission of Operation RESTORE HOPE was narrow and clearly defined: to provide security for the delivery of relief
supplies.” But this initial clarity was lost and mission creep set in. The capture of Chief Warrant Officer Two Durant was a visible result
of this lack of clarity and inability to control the civilian population in Mogadishu. See Frederick M. Lorenz, Rules of Engagement in
Somalia: Were They Effective?, 42 NAVAL LAW REVIEW 62, 63 (1995). See also Frederick M. Lorenz, Forging Rules of Engagement:
Lessons Learned in Operation United Shield, MIL. REV., Nov/Dec. 1995, at 17.
32
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 Allard, supra note 28, at
22.
33
See Dayton Accord, at Annex 1A, arts. I and VI.

13-5
 In reality, the IFOR, realizing the breadth of a mission with such responsibilities has not formally
34
acknowledged the obligation to execute either of these mission elements. The result of this phenomenon
is that the forces on the ground do not have a clear picture of the mission. Fortunately, judge advocates
have become adapted to the difficulty of these type of occurrences and 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. Questions that bear answering are: (1) what has
35
the President (or his representative) said to the American People; (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
36
upon use of regional organization forces, what statement or directives has such an organization made?

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
37
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.
38
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
39
became less clear.

Unfortunately, for the military commander and the lawyers that advise him, they must take their missions
as they find them. After doing everything that can be done to gain the best possible understanding of the
mission’s objective, the operational lawyer must then go about the business of deciding what bodies of law
should be considered in the articulation of the civilian imperative.

As described earlier, the various laws, rules, and policies that provide guidance relative to the treatment
of civilian persons during military operations are arranged in a four tier structure within the overall CPL
complex. The judge advocate should look to the foregoing considerations and the operational environment
40
and determine if the body of protections in the first tier are applicable. 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

34
See John Pomfret, Perry Says NATO Will Not Serve As “Police Force” in Bosnia Mission, WASH. POST , January 4, 1996, at D-1.
Also see, 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
tract them down”).
35
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 unfold).
36
Regional organizations such as North Atlantic Treaty Organization (NATO), Organization of American States (OAS), and the
Organization of African Unity (OAU).
37
S.C. Res. 794, U.N. SCOR, 47th Sess., U.N. Doc. S/RES/794 (1992).
38
Dec. 3, 1992. See id.
39
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).
40
As noted earlier, first tier protections represent the baseline treatment to which all persons are entitled. Accordingly, to some extent,
the judge advocate will always find that these protections are applicable. The question will instead revolve around how to implement
these protections.

13-6
changes, the potential application of the regulation within each of the four tiers must be constantly
reassessed.

B. TIER ONE: FUNDAMENTAL HUMAN RIGHTS LEGISLATION

1. SOURCES AND APPLICATION

Logically, the first tier should always serve as the military practitioner’s point of departure when
attempting to solve any problem or deal with any issue concerning the treatment of civilian persons in an
area of operations. The various declarations, statements, charters, and treaties that together serve as the
components of human rights legislation (the bodies of law that comprise Tier One) are constructed with this
baseline application in mind. These regimes represent the evolution of natural or universal law recognized
41
and commented upon by leaders and scholars for thousands of years. The principle behind this body of
law is that these laws are so fundamental in nature that all human beings are entitled to them by virtue of
the laws of nature.

Besides applying to all people, the most critical aspect of these rights is that they are said to be non-
42
derogable, that is, they cannot be suspended under any circumstances. As the “minimum yardstick” of
protections to which all persons are entitled, this baseline tier of protections never changes. Consequently,
Tier One protections serve as an excellent starting point for lawyers charged with advising combatant
commanders and training the soldiers led by those commanders.

Although any number of human rights declarations or treaties might serve as a good statement of the
basic protections that human rights legislation is intended to provide, the appropriate place to begin any
43
analysis of Tier One protections is article 1 of the United Nations Charter. The third paragraph of article
44
1 reaffirms two of the four basic goals articulated in the Charter’s Preamble -- to “[promote and
encourage] respect for human rights and for the fundamental freedoms for all without discrimination as to
race, sex, language, or religion . . . .”

Within the rubric of CPL, this portion of the United Nations’ mission statement is important as it serves
as a statement of the ideals shared by each member state. In the more specific context of an operation
sanctioned by United Nations’ authority, fundamental human rights, as one of the primary purposes of the
United Nations itself, would obviously take on an even more important role. Any act on the part of the
United States that detracts from these goals undermines the entire operation, threatens its leadership role
45
within the United Nations, and endangers its national strategy in that particular region.

41
See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES , at ∋ 701, cmt. [Hereinafter RESTATEMENT ].
42
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.
43
U.N. CHARTER art. 1.
44
Id., Preamble. The second and third purposes cited within the Preamble are the determination to “reaffirm faith in the fundamental
human rights, in the dignity and worth of the human person, in equal rights of men and women...,” and “to promote social progress and
better standards of life in larger freedom.”
45
General Barry R. McCaffrey, Commander in Chief, United States Southern Command (SOUTHCOM), recently stated that as the
United States seeks “greater hemispheric integration” within the Americas, human rights and the rule of law will serve as an increasingly
important vehicle in the furtherance of its strategy for the hemisphere. He noted that many of the most important SOUTHCOM activities
center around operations and programs designed to spread the message of the Universal Declaration throughout the hemisphere. He
noted that anything less than a vibrant human rights agenda would degrade every other United States initiative within his area of
operations. General Barry R. McCaffrey, Upbeat Outlook for Southern Neighbors, DEFENSE 22, 23, 26 - 27 (Iss. 4, 1995). During an
even more recent statement, General McCaffrey quoted Secretary of Defense William Perry who characterized the strategy for the
Americas as “commitment to democracy in the region, including ... respect for human rights.” To this end he explained that SOUTHCOM
“is involved in human rights to support international and regional declarations and to comply with military directives and doctrine.”
General Barry R. McCaffrey, Commander in Chief, United States Southern Command, Keynote Address at the Judge Advocate
General’s School, Nuremberg and the Rule of Law, A Fifty Year Verdict (Conference), Charlottesville, Virginia (November 18, 1995).
Earlier this year SOUTHCOM issued a Human Rights Policy to implement its human rights agenda. General McCaffrey directed that the
Universal Declaration of Human Rights be attached to this policy memorandum. The objectives expressed within the policy
memorandum are the: (1) establishment of a human rights policy consistent with international and domestic law, (2) encouragement of

13-7
 After considering the importance of the Charter of the United Nations, attention should then turn to the
primary and most universally regarded statements of human rights. The premier document within this
46
group is the Universal Declaration of Human Rights. The Declaration has frequently been cited as a clear
47
statement of customary international law relative to the basic rights of all men. This is important as the
Declaration, in and of itself, is not a legally binding treaty. Military practitioners must become familiar, at a
48
minimum, with the Declaration principles that the United States recognizes as customary law. These
portions of the Declaration have the weight of law and the United States should (and does) strictly comply
49
with the Declaration’s prescription, to the extent of these provisions.

Most general questions regarding how the soldiers, airmen, sailors, and marines of any particular
operation should treat civilians can easily be answered by following the tenets found within the Declaration.
In fact, most service members and their leaders are well trained and advised relative to the most basic
Declaration principles. For example, Army Regulation 350-41 provides nine basic rules that soldiers must
always follow in all military operations. Within the Army, these rules are referred to as the “Soldier’s
Rules.” The common thread that runs through each of these rules is that civilians and noncombatants are
50
to be treated humanely.

Judge advocates are currently training the soldiers of the 1st Armored Division and other United States
Army Europe (USAREUR) units to observe these same tenets of human rights law during their deployment
51
to Bosnia-Herzegovina. Along this line, these judge advocates have advised their

allied governments to adhere to international norms of human rights and assist them in doing so, (3) ensurance that all U.S. military
personnel assigned to or deployed within the SOUTHCOM area of responsibility receive human rights awareness training, and (4)
ensurance that all such personnel understand their responsibilities to immediately object to and report all suspected human rights
abuses. Policy Memorandum No. 1-95, General Barry R. McCaffrey, Commander in Chief, SOUTHCOM, subject: USSOUTHCOM
Human Rights Policy (16 June 1995) (on file within The International and Operational Law Department, The United States Army Judge
Advocate General’s School) [hereinafter SOUTHCOM Human Rights Policy Memorandum].
46
Universal Declaration, supra note 21.
47
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, fair and just trial (fair and public
hearing by an impartial tribunal), arbitrary arrest and detention, and right to equal treatment before the law. GERHARD VON GLAHN, LAW
AMONG NATIONS 238 (1992) [hereinafter VON GLAHN].
48
“Only those human rights whose status as customary law is generally accepted and whose scope and content are generally agreed”
are considered to be statements of customary law and binding upon the United States. This limited subset of the rights expressed within
the Universal Declaration include the prohibition of any “state policy to practice, encourage, or condone” genocide, slavery, murder,
torture or cruel, inhuman, or degrading treatment, prolonged arbitrary detention, systematic racial discrimination.” RESTATEMENT , supra
note 40, at ∋ 702.
49
A number of the articles within the Declaration arguably go too far, creating unrealistic protections that nations, including the United
States cannot afford to sustain. It is this body of articles that commentators and governments balk at, refusing to accept as
representative of customary law. See Maurice Craston, Are There Any Human Rights?, DAEDALUS, No. 4, 1983, at 1-2.
50
DEP’T OF ARMY, REG . 350-41, TRAINING IN UNITS, para. 14-3 (19 March 1993) [hereinafter AR 350-41].
51
Id. Soldiers received training based upon the nine soldiers’ rules described within AR 350-41. They were also trained to the standard
of the very similar rules enumerated within USAREUR Pamphlet 350-27, COMBAT CODE OF THE USAREUR SOLDIER (5 June 1984)
[hereinafter USAREUR PAM 350-27], and USAREUR Pamphlet 350-28, TRAINING LAW OF WAR (19 July 1984) [hereinafter USAREUR
PAM 350-28]. USAREUR PAM 350-27 states the rules as follows:

1. Soldiers do not harm:

- Captured enemy soldiers or civilian detainees
- Noncombatant civilians
- Medical personnel or chaplains
- Enemy soldiers “out of combat”
2. Soldiers collect and care for enemy wounded and sick.
3. Soldiers respect the medical symbol and do not attack medical facilities or medical vehicles.
4. Soldiers respect protected places.
5. Soldiers do not engage in treacherous acts.
6. Soldiers allow their enemy to surrender.
7. Soldiers do not steal from their enemy or from civilians.

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commanders that the minimum humanitarian protections found within common article 3, to the
52
four Geneva Conventions are applicable to that theater of operations. Recognizing that these
protections are consistent with the provisions of the Universal Declaration, judge advocates are
53
also advising compliance with the Declaration. Although this humane treatment mandate is an
excellent default setting, it does little to answer the more difficult questions that our military
leaders frequently encounter. For example, what type of privacy or political rights do civilians in
an overseas area of operations possess. Further, what is the legal extent of the United States
obligation to restore and enforce these rights?

The bottomline is that 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 provided by reviewing the United States’ conduct during
Operation UPHOLD DEMOCRACY, 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 Nation’s justification for the
sanctioning of 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 Declaration does not
prohibit detention or arrest, but simply protects civilians from the arbitrary application of these
54
forms of liberty denial. The JTF could detain civilians who posed a legitimate threat to the
55
force, its mission, or other Haitian civilians.

8. Soldiers do not cause unnecessary suffering.

9. Soldiers report violations of the Law of War.
10. Soldiers obey orders and the Law of War.

These rules were modified in recognition that they were formulated for the high intensity armed conflict of a bipolar world. For example,
the words “enemy” and “war” were extracted and replaced with suitable OOTW terms. See Pre-Deployment Briefing, Office of the Staff
Judge Advocate, 1st Armored Division, United States Army, Task Force Eagle (24 November 1995) reprinted in 1996 OPERATIONAL
LAW MATERIALS, INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL’S SCHOOL [hereinafter 1st
AD Briefing]. The materials serve as a medium for a standardized briefing that permits civilian person intensive instruction, with specific
discussion and teaching objectives directed at (1) “Detained Persons,” and (2) “Permissible Control of Civilians.” Other topic s within the
training medium are directed at specific Rules of Engagement and Use of Force issues that also deal with the local civilian population.
52
Id., at 7. Specifically, slide six of the Pre-deployment Briefing was used to communicate this message to soldiers and their leaders:

- Treat all captured/detained persons humanely.

- Respect their persons and property.
- No torture: cannot coerce information.
- Prompt evacuation from hostile fire area.
- Proper medical care, food, clothing, and shelter.
- Report and forward to designated authorities.
53
Id.
54
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. Accordingly, 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.
55
“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 26, at 63.

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 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 physical maltreatment, degrading treatment, or intimidation; and rapid
56
judicial review of their individual detention. In fact, Operation UPHOLD DEMOCRACY’s Joint Detention
57
Facility became “one of the “most conspicuous successes” of the operation. The burden associated with
fully complying with the letter and spirit of the Universal Declaration permitted the United States to
58
safeguard its force, execute the mission, and reap the benefits of “good press.”

The Declaration also provides a list of political, religious, cultural, and even economic protections.
59
Significant among these rights is the right to privacy, which includes family and marital rights. These
rights are consistent with the considerations for the family found within the fourth Geneva Convention,
60
forbidding the arbitrary interference with the family unit. Further, the Declaration provides for freedom of
61
movement and residence, peaceful assembly, expression, and religion.

These provisions raise the same question: to what extent are U.S. leaders involved in the execution of
an OOTW required to establish procedures and institutions to enforce these rights? Is the obligation one
of human rights familiarization of your troops or is the obligation more affirmative (and expensive) in
nature? Given the customary law status of the Declaration’s primary provisions and the United States’
solid support for these rights, to what extent is the United States bound to ensure the execution of the
Declaration’s mandate during the course of either War or even more importantly, OOTW?

Stated differently, the question that the military leader faces, is not whether civilians in an area of
operations should enjoy these basic freedoms. The question is what is the extent of our responsibility to
create and then sustain an environment which fosters these freedoms. The answer is dependent upon the
nature of a given operation and must be answered anew each time United States forces deploy across
another state’s border. Yet, despite the mission, the Declaration does not require actions that will
jeopardize the security of the force. Nor does it require absurdly burdensome actions that would saddle
international intervention forces with the absolute obligation to ensure that no person, group, or
62
organization harms the civilians within an area operations.

2. NON-SELF-EXECUTING TREATIES
63
The doctrine of self-executing treaties was introduced by the United States Supreme Court in first half of
the nineteenth century. The essence of the doctrine is that no treaty clause gains the benefit of the

56
See id. At 64-65.
57
Id.
58
The judge advocates within the 10th Mountain Division found that the extension of these rights and protections served as a 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 , 110 TH MOUNTAIN DIVISION,
OFFICE OF THE STAFF JUDGE ADVOCATE MULTINATIONAL FORCE HAITI AFTER -ACTION REPORT 7-9 (March 1995) [10TH MOUNTAIN
AAR].
59
Id. at arts. 12 & 16.
60
GC, supra note 2, at arts. 25,49, & 82.
61
Universal Declaration, supra note 21, at arts. 13, 20, 19, and 18.
62
Contrast this obligation with the higher standard placed upon a true occupation force, that has an affirmative duty to provide for the
public safety, to maintain order, and to ensure that individual rights are observed. See generally, GC, supra note 2, at Section III, Part III.
63
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 today’s great debate over whether or not treaties are self-executing.

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 64
Constitution’s promise to make it the supreme law of the land unless such a clause is either self-
65
executing or is already implemented by legislation. The problem arises in attempting to determine which
clauses are self-executing and which are not. Courts have traditionally focused upon the intent of the
66
contracting parties, and over time a set of precedential guidelines has evolved.

The United States position relative to 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
67
legislation.” Thus, the United States submits 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 becomes part of the
68
treaty and part of United States law.

The impact of this condition and United States policy reaches beyond some possible inconsistency
between domestic law and the Covenant’s mandate. It reaches the impact that the Covenant might have
upon the conduct of United States military forces involved in operations beyond our border. Does this
mean that in the absence of implementing legislation no part of such a treaty binds the United States in the
execution of overseas military missions? No, or at least not exactly. The Department of State’s view is
that the non-self-executing declaration made pursuant to the Covenant’s ratification (and any other treaty)
“covers all substantive provisions of the treaty, especially those which might be deemed non-self-executing
69
in the absence of the declaration.”

Some experts argue that the declaration, being unilateral in nature, has no effect. While many other
experts (outside of the United States government) argue in favor of a middle ground. Instead of either of
the two extreme positions, they argue that each declaration and treaty must be viewed separately. In
some cases this analysis will reveal treaties or portions of treaties that obviously require implementing
70
legislation and have no effect prior to the enactment of such legislation. The flip side to this position is
71
that those portions of the Covenant that are basic, not inconsistent with domestic law, and affirmative in
72 73
nature are not effected by the non-self-executing provisions. Accordingly, it is these basic and

64
U.S. CONST . Art. VI, cl. 2. It is important to note that the historical purpose of the Supremacy Clause was to avoid the violation of treaty
obligations by intentionally reversing the British model of “non-self-executing” treaties, making all treaties entered into by the United
States immediately enforceable from the moment they become binding.
65
Military practitioners have long understood this rule as follows:

[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 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....” D EP’T OF ARMY, PAMPHLET 27-161-1, LAW OF PEACE, VOLUME I para. 8-23 (1
September 1979) [hereinafter DA PAM 27-161-1],
66
See Frolova v. U.S.S.R., 761 F.2d 370, 373 (7th Cir. 1985). The court resolved the issue of intent by considering (1) the language and
purposes of the agreement as a whole; (2) the circumstances surrounding its execution; (3) the nature of the obligations imposed by the
agreement; (4) the availability and feasibility of alternative enforcement mechanisms; (5) the implications of permitting a private right of
action; and (6) the capability of the judiciary to resolve the dispute.

RESTATEMENT , supra note 40, at ∋ 131.

67

68
See id. at ∋ 111, cmt.
69
Telephone interview (with exchange of facsimile notes), David P. Stewart, Assistant Legal Advisor for Human Rights and Refugees,
United States Department of State (December 20, 1995) [hereinafter Second Stewart Interview].
70
Therefore, no cause of action is created. It is for this purpose that the non-self-executing declaration was recommended and inserted
into the advice and consent resolution.
71
One frequently cited commentator articulates this requirement as follows: “does not cover a subject for which legislative action is
required by the Constitution.” Riesenfeld, The Doctrine of Self-executing Treaties and GATT: A Notable German Judgement, 65 Am.
J. Int’l L. 548, 550 (1970).
72
Id. Riesenfeld describes this requirement as follows: “does not leave discretion to the parties in the application of the particular
provision.” Others have described this requirement in terms of “precatoriness.” In other words, precatory treaties are not judicially
enforceable. On the other hand, if the provision creates an obligation, instead of merely setting forth aspirations, then it is affirmative,

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reasonable protections, not affected by the non-self-executing limitation, they argue that military
practitioners can and should turn to when answering the more sophisticated questions posed during
OOTW.

Whether military practitioners understand these obligations in terms of binding (self-executing) treaty
obligations or customary law makes little difference regarding the advice they render to their client. In both
cases, the practitioner will advise his client that the well established portions of such treaties probably
reflect customary law and should be observed.

3. EXTRATERRITORIALITY

Military practitioners must also become cognizant of the extent to which any particular human rights
treaty applies extraterritorially. In other words, is such a treaty intended only to regulate the conduct of
our government towards its own nationals and other persons within our territorial borders, or is it intended
to have a much broader impact? This broader application would include, of course, the conduct of our
military forces in OOTW. The general rule is that international agreements bind parties only in respect to
74
conduct within their territory. Thus, in the absence of a different intention, manifested within the scope
(time and territory) provisions of a human rights treaty, its mandate would only regulate the conduct of a
75
party relative to people within that party’s own territory.

With the general rule in mind and using the Civil and Political Covenant as our model, consider the
language of article 2 (the scope provision) of the Covenant to determine whether it has extraterritorial
application. Arguably, article 2 does not limit the Covenant’s application to the territory of a party.
Instead, it provides that parties undertake “to respect and ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the present Covenant.”

A number of credible commentators have interpreted the foregoing language to mean “to all individuals
76
within its territory” and “to all individuals subject to its jurisdiction.” This interpretation would oblige the
United States to extend to persons, who come in contact with United States’ extraterritorial authority, the
protections afforded by the Covenant. Obviously, such an obligation would significantly alter the
responsibilities of United States military forces engaged in overseas military operations.

In the course of our analysis we first consider the language of the law. In this case article 2 of the Civil
and Political Covenant. In doing so we find the conjunction that connects the two elements of article 2.
The conjunction in question is “and.” It is not “or.” The drafters did not say the Covenant’s protections
extend to all people in your territory or subject to your jurisdiction. Instead, they wrote that the protections
extend to people that are both in your territory and subject to your jurisdiction. This word usage alone is
persuasive evidence of the contracting parties’ intent.

Although there is no mention of extraterritoriality within the negotiating record of the treaty, there is
evidence that the United States Government did not intend (and did not believe that other parties intended)
for the Covenant to generate obligations that would extend beyond a parties’ own territory. An

and self-executing. See Carlos Manuel Vazquez, The Four Doctrines of Self-executing Treaties 89 AM. J. INT’L L. 695, 712-713
[hereinafter Vazquez].
73
To many this limited application of the non-self-executing condition makes sense. In fact, one could easily argue that an attempt to
create or place a complete non-self-executing limitation on a treaty would violate Article VI of the United States Constitution and
customary “effect and interpretation” principles for international agreements.
RESTATEMENT supra note 40 at ∋ 322(2).
74

75
Id. at rep.’s note 3.
76
Thomas Buergenthal, To Respect and to Ensure: State Obligations and Permissible Derogations, in THE INTERNATIONAL BILL OF
RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 72, 74 (Louis Henkin ed., 1981), cited language reprinted in Meron-
Extraterritoriality, supra note 26, at 79. Professor Meron joins Judge Buergenthal in his conclusion that parties to the Covenant are
bound beyond their borders to the extent that persons become subject to their jurisdiction.

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example of this evidence is found within the Congressional Budget Office (CBO) Report traditionally
77
supplied to the Committee on Foreign Relations during the United States treaty ratification process.

The CBO Report indicated that the Covenant is “designed to guarantee civil and political rights to
persons within each country that ratifies it.” The report also indicated ratification would not “affect direct
spending or receipts,” primarily because the rights provided within the treaty are “parallel“ to those
provided to “U.S. citizens” by the Bill of Rights and other civil rights statutes. Accordingly, reasoned the
CBO, no new programs or activities would be required to implement the treaty obligations. These entries
demonstrate that the Senate provided its advice and consent based upon the belief that the Covenant
78
would not affect the fiscal obligations of the United States beyond its borders. In other words, its impact
would only reach those within its territory and subject to its jurisdiction (within its territory).

The foregoing analysis demonstrates, even in the absence of a formal reservation, understanding, or
reservation, that the United States ratified this treaty with the understanding that the treaty would apply
only within its own territory. In addition, other than the broad interpretation of article 2, there is scant
evidence within the Covenant itself, that it was intended to apply beyond the borders of state parties.
Finally, it is the position and policy of the United States, that as a formal matter, the Covenant does not
79
create any obligations relative to the extraterritorial conduct of this nation.

C. TIER TWO: HOST NATION LAW

After considering the type of baseline protections represented by the Tier One regimes of 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. Following the sequential four tier approach that I have advocated, the next
area of law that should be analyzed is host nation law.

Those that advise our leaders must remember that the rules that regulate the execution of an OOTW do
not enjoy the benefit of clarity. Nowhere is this problem more painfully obvious than in the area of host
80
nation law. This problem has not, however, prevented judge advocates in recent operations from
81
realizing the obvious importance of host nation law. Recognition of local legal requirements is necessary
because: (1) public international law demands such recognition and (2) frequently the legitimacy of the
82
operation depends upon it.

In traditional warfare the rules that regulate the application of host nation law are straightforward and
make sense (at least in terms of their purpose of reducing the suffering of the victims of warfare). In the
eyes of the military lawyer, traditional warfare possesses the beauty of simplicity. For example, when a

77
Claiborne PELL REPORT ON THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, S. EXEC. DOC . NO . 102-23 (Cost
Estimate) [hereinafter PELL REPORT ].
78
Id. A review of the entire Report submitted by the Committee on Foreign Relations regarding the Covenant reveals that all the analysis
is focused on the impact the treaty would have within the United States. Not a single entry discussed how the treaty would alter or impact
upon the actions of the United States outside of its own territory.
79
Second Stewart Interview, supra note 68.
80
This fact has been repeatedly borne out by the after action reports from OOTW. For example, the CLAMO HAITI REPORT states
“United States troops did not fight their way into Haiti and did not capture prisoners of war. Nevertheless, within 72 hours of the United
States’ arrival in country, the need for a facility to house detained persons became apparent.” CLAMO HAITI REPORT , supra note 26, at
63. From the inception, judge advocates realized that because of the nature of the operation, they would have to factor host nation law
into the formulation of the rules and methodology that would dictate how their detention facility would operate.
81
See Memorandum, Major Bradley Stai, Chief, Civil Law, Office of the Staff Judge Advocate, XVIIIth Airborne Corps and Fort Bragg,
AFZA-JA-CV, to Staff Judge Advocate, subject: After Action Report (AAR)-Operation Uphold Democracy 7-8 (2 Feb. 1995) [hereinafter
Stai Memo]. (reporting the consistent effort judge advocates made to gain copies of the Haitian Constitution and other significant
Haitian statutes and further reporting that one judge advocate even translated several Haitian statutes into English).
82
Army doctrine describes legitimacy as one of the primary principles of OOTW. The philosophy behind this doctrine is based upon the
belief that it is imperative to foster the perception among host nation citizens that the authority of the intervention force and the host
government that it supports is “genuine and effective and employs appropriate means for reasonable purposes.” FM 100-5, supra note
4, at 13-4.

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military force invades the territory of another nation, conquers a portion or all of that state, and then
exercises the authority of an occupant, the rules are simple.

On the other hand, OOTW deny lawyers and those that they serve the benefit of the traditional rules of
conventional warfare. Consider the combined joint task force that plans the “semi-permissive” entry of
some nation that has ignored the condemnations and resolutions of the United Nations. Such a nation
might easily become convinced that fighting coalition forces led by the United States is undesirable. In this
case, instead of entering the nation as an invader, the task force enters with the assent of the de facto
government and under the label of “intervention force.” Although such a force usually has the benefit of this
less bellicose label and a peace oriented mission, determining the exact nature of the status represented
by the label is the central problem in determining Tier Two protections for civilians.

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
83
followed by occupation. The left end of the spectrum is represented by tourism. 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 straight forward 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
84
things that could be done to maintain order and protect civilians from other civilians had to be analyzed in
85
terms of the coalition force’s legal right to intervene in the matters of a sovereign state.

The weapons search and confiscation policy instituted during the course of Operation UPHOLD
86
DEMOCRACY is a clear example of this type of deference to host nation law. The coalition forces
adopted an approach that demonstrated great deference for the Haitian Constitution’s guarantee to each
87
Haitian citizen the right to “armed self-defence, within the bounds of his domicile.”

Another characteristic of OOTW, relative to the application of host nation law, is their tendency to evolve
and transition over time. As these operations mature and stabilize, it is very likely that our leadership will
desire to grant more deference to the host nation’s government and its system of law. Thus, the status of
our force along the earlier described spectrum can be expected to shift during the course of a single
operation.

With the foregoing background in mind, it is important to note that Public International Law assumes a
88
default setting. The classical rule provided that “it is well settled that a foreign army permitted to march

83
In essence, the category of OOTW 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 state’s 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 40, at ∋∋ 433
and 441.
84
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 CLAMO HAITI REPORT , supra
note 26, at 76.
85
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.
86
See 10th Mountain AAR, supra note 57 at 108.
87
HAITI CONST . Art. 268-1 (1987).
88
See DA PAM 27-161-1, supra note 64, at 11-1, for a good explanation of an armed forces’ legal status while in a foreign nation.

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through a friendly country, or to be stationed in it, by permission of its government or sovereign, is exempt
89
from the civil and criminal jurisdiction of that place.” The modern rule, however, is that in the absence of
some type of immunity, forces that find themselves in another nation’s territory must comply with that
90
nation’s law. This makes the circumstances that move military forces away from this default setting of
extreme importance. Historically, military commentators have stated that United States forces are immune
91
from host nation laws in any one of three possible scenarios:

(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
with 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
92
directly, 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
93
types of arrangements. In fact the Carter-Jonassaint Agreement is an example of such an agreement.
The agreement demonstrated deference for the Haitian government by conditioning its acceptance upon
the government’s 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
94
Iraqi traffic lights in late February 1991. The invasion force was not bound by the domestic law of Iraq.
95
This exception is based on the classical application of the Law of the Flag theory.

89
Coleman v. Tennessee, 97 U.S. 509, 515 (1878).
90
Classical commentaries describe the international immunity of armed forces abroad “as recognized by all civilized nations.” von
Glahn, supra note 46, at 225-226. See also WILLIAM W. BISHOP, JR . INTERNATIONAL LAW CASES AND MATERIALS 659-661 (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 64, at 11-1.
91
Richard M. Whitaker, Environmental Aspects of Overseas Operations, ARMY LAW ., Apr. 1995, at 31 [hereinafter Whitaker].
92
As opposed to the indirect benefit a sending nation gains from shielding the members of its force from host nation criminal and civil
jurisdiction.
93
The entry agreement for Operation UPHOLD DEMOCRACY, reprinted in CLAMO HAITI REPORT , supra note 26, at 182-183.
94
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 the GC, supra
note 2, arts. 64 - 78 and numerous arts. within Sect. IV.
95
See Whitaker, supra note 90 at 31.

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 96
The Law of the Flag has two prongs. The first prong is referred to as the combat exception, is
described above, and is exemplified by the lawful disregard for host nation law exercised during such
97
military operations as DESERT STORM. This prong is still in favor and represents the state of the law.
The second prong is referred to as the consent exception, is described by the excerpt from the United
98
States Supreme Court judgement in Coleman v. Tennessee quoted on page 15, 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 enjoy universal recognition (but to say it is now in disfavor would be an
99
overstatement).

To understand the contemporary status of the Law of the Flag’s 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 theory’s grant of immunity. For instance, in nations where
military forces have entered based upon true invitations, and it is clear that the relationship between
100
nations is both mature and normal, 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 an 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 Flag’s 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
101
Flag’s combat exception. 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
102
the combat use of air, sea , or land forces under the provisions of the United Nations Charter, but the
103
same immunity is available to the extent it is necessary when combat is not contemplated.

96
Id. at footnotes 34 and 35.
97
See OPPENHEIM, supra note 12, at 437. “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....”
98
Coleman v. Tennessee, supra note 88.
99
See DA Pam 27-161-1, supra note 64, at 11-1.
100
Normal in the sense that some internal problem has not necessitated the entrance of the second nation’s military forces.
101
Whitaker, supra note 90, at n. 35.
102
UN CHARTER, Chapter VII, art. 42.
103
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 57, 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.

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 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 Defense’s 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.

D. TIER THREE: CONVENTIONAL LAW

After legal advisors consider the first two tiers of protective law, they should then turn their attention to
the third tier of protection. This group of protections is perhaps the most familiar to practitioners and
contains the protections that are bestowed by virtue of treaty and customary law; domestic and statutory
law; and executive orders, departmental directives, and regulation.

Tier Three application is largely determined by the circumstances that surround the operation and the
particular status of the civilians that may be affected by the operation. Knowledge of the foreign territory in
which the operation will be conducted and the different nations involved in the operation is also critical to
determining the protections found within this tier. These factors control which treaties are applicable and
to what extent.

In short, this tier contains 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
104
treaties (triggered by armed conflict), the Refugee Convention and its Protocol, and any number of
statutes or executive orders (and their implementing directives and regulations).

Unfortunately, a detailed analysis of any one of these regimes exceeds the potential scope of this
chapter. Two pressing issues should be addressed: (1) the article 2 threshold and (2) the extent to which
the United States abides by Protocol I and II Additional to The Geneva Conventions.

1. THE ARTICLE 2 THRESHOLD.

The first issue is the ongoing problem of determining the location of the “international armed conflict”
threshold in modern military operations. It is only when two nation states are involved in armed conflict that
the greater portion of the law of war becomes applicable to protect civilians. Despite the obvious
importance of this threshold, its exact location is sometimes elusive.

The problem is bracketed by contemporary operations where the threshold was either clearly or clearly
not satisfied. For example, Operation DESERT STORM serves as an example of where the enforcement
of United Nations Security Council resolutions resulted in a contention between states that clearly crossed
over the armed conflict threshold, as described within article 2, common to the four Geneva
105
Conventions.

This type of conflict is generally described as an “article 2 conflict,” with the understanding that once the
article 2 threshold is crossed, the law of armed conflict, in its entirety, becomes applicable, not just the four
106
Geneva Conventions. As far as DESERT STORM is concerned, there never seemed to have been any
107
real doubt in the minds of the United States policy makers regarding this issue. This may have

104
See Refugee Convention and Refugee Protocol, supra note 16.
105
“T]he present convention shall apply in all cases of declared war or of any other armed conflict, which may arise between two or more
of the High Contracting Parties, even if a state of war is not recognized by one of them.” See Geneva Conventions, supra note 2 at art. 2.
106
The Geneva Conventions of 1949 were drafted to serve as just the latest iteration of the ongoing effort to regulate warfare. The
Conventions make this point clear in a number of articles that define the relationship between a subject convention and the existing laws
of war. See GC, supra note 2, at art. 154. See also W. Michael Reisman and James Silk, Which Law Applies to the Afghan Conflict,
82 AM. J. INT’L L. 459, 460 (1988) [hereinafter Reisman].
107
See DEP’T OF DEFENSE, CONDUCT OF THE PERSIAN GULF WAR, FINAL REPORT TO CONGRESS, at App. O-8 (Apr. 1992)
[hereinafter PERSIAN GULF WAR FINAL REPORT ](reporting that the Department of Defense reported to Congress that all law of war
treaties, to which the United States is a party, were applicable to Persian Gulf War).

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surprised commentators that had offered opinions that contemporary law of war treaties only bind the
conduct of national forces and not international forces (multi-national forces that act under the authorization
108
of a United Nations or regional organization mandate).

The majority view, consistent with the United States position, is that international forces (composed of
109
various national elements) are bound to the same extent by the law of war as national forces. We are
to look beyond the guise of “international force,” and to the individual state forces that make up the
international force. If an individual state force is involved in a (1) contention, (2) with another state, (3)
110
where at least one side employs military force, (4) in an effort to overpower the other state, then
111
despite the label used by the state parties for their actions or the reason for the contention, the event is
112
an article 2 conflict. Consequently, the law of war in its entirety becomes applicable. Without doubt, the
foregoing elements were each met with the commencement of hostilities in the Persian Gulf.

On the other end of the spectrum, Operation UPHOLD DEMOCRACY represents a case where a multi-
national force entered another nation, and although shots were occasionally fired, the article 2 threshold
113
was never crossed. This is because several of the previously mentioned elements are missing.
Although several states are involved, one could argue that they are not involved in a “contention” (defined
114
as “a violent struggle through the application of armed force”). Moreover, it would be difficult to argue
that “armed force” was employed with the “intent to overpower” the military forces of any of the involved
states.

In the center of the spectrum stands Operation JUST CAUSE, the unilateral United States mission to
protect United States’ nationals, defend Panama’s fragile democracy, protect the civilian population,
115
apprehend General Manuel Noriega, and defend the integrity of the Panama Canal Treaty. The United
States has steadfastly stated that the Law of War did not apply to JUST CAUSE, because the lawfully

108
See VON GLAHN, supra note 46, at 699-700.
109
Id.
110
The “use of armed forces” element means that the two states must be involved in some type of hostilities. The official commentary to
the First Geneva Convention defines an armed conflict as “any difference arising between two States and leading to the intervention of
armed forces.” OSCAR M. UHLER, COMMENTARY I, GENEVA CONVENTION FOR THE AMELIORATION OF THE CONDITION OF THE
WOUNDED AND SICK IN ARMED FORCES IN THE FIELD, 32 (Jean S. Pictet, ed. 1952) [hereinafter PICTET I]. Most commentators assert,
however, that there is a minimum degree of intensity required to satisfy this element. Professor Howard S. Levie, Professor Emeritus,
St. Louis University Law School and Adjunct Professor of Law, United States Naval War College, suggests that there is a floor below
which article 2 is not triggered. He believes that occasional and isolated incidents between nations do not create international armed
conflict. Professor Levie gives the 1985 shooting of United States Army Major Author D. Nicholson by the Soviet Union as an example
of a scenario where hostilities were so limited that no armed conflict existed between two nation states. Howard S. Levie, The Status of
Belligerent Personnel “Splashed” and Rescued by a Neutral in the Persian Gulf Area, 31 VA. J. INT’L L. 611, 614, and 616 (1991).
111
Article 2 of the 1949 Geneva Conventions represented a marked change from the earlier 1929 version of the Conventions. The 1929
Conventions had no equivalent provision, based upon the belief that parties to a potential conflict would comply with the Hague
Convention No. III rule which required a declaration of war (or ultimatum with a conditional declaration of war). Accordingly, there would
be no need to guess as to the nature of the conflict. Article 2 changed all of this, removing the argument that in the absence of a formal
declaration of war the Conventions did not apply. See HOWARD S. LEVIE, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT 9 -
11 (1976).
112
See OPPENHEIM, supra note 12, at 201 t0 203; and VON GLAHN, supra note 46, at 669.
113
See The Carter-Jonassaint Agreement, reprinted in CLAMO Haiti Report, supra note 26, at 182. (the agreement serves as the best
evidence that the entrance was permissive and based upon the consent of the de facto leadership of Haiti). This agreement, coupled
with later national and international pronouncements, is evidence that the international community did not view the multi-national force’s
entrance and subsequent presence as either armed conflict or occupation. See S.C. Res. 944, U.N. SCOR, 49th Sess., 3430th mtg.,
U.N. Doc. S/RES/944 (1994) (the resolution, drafted and passed after the entrance of the multi-national force, reflects the United
Nation’s opinion that nothing that these forces had done amounted to an event that would cross the article 2 threshold).
114
OPPENHEIM, supra note 46, at 202.
115
See Letter from George Bush, President of the United States, to Robert C. Byrd, President pro tempore of the Senate (Dec. 21,
1989). See also Fact Sheet for the Honorable Charles B. Rangel, Panama: Issues Relating to the U.S. Invasion, U.S. GEN. ACCT . OFF .,
B-242101 (Apr. 24, 1991) [hereinafter GAO Fact Sheet].

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constituted government of Panama extended an invitation to the United States to send military forces into
116
Panama to achieve the foregoing goals. Accordingly, reasoned the United States, there was no
contention between the United States and Panama, because the later desired the former’s entrance and
117 118 119
assistance. Although the United States was criticized relative to the timing of the “regularly
constituted government” of Panama’s request for the United States’ entrance, the law supports the United
120
States’ position.

The three operations discussed above are demonstrative of the nuanced and complex nature of
contemporary military operations. Although, an operation may have many of the attributes of armed
conflict, the absence of any of the four traditional elements of warfare prevents its characterization as a
war (or armed conflict). Stated differently, the absence of any of the four traditional elements denies a
conflict of article 2 status. When this happens the laws of armed conflict, that are the heart of Tier Three
Protections, do not apply.

2. APPLICATION OF THE PROTOCOLS

121
The second issue that has faced the United States is deciding what impact, if any, Protocols I and II
should have on military operations. The United States signed both the Protocols on December 12,
122 123
1977, but has yet to ratify either treaty. On the other hand, the number of other nations that have
ratified both protocols has climbed steadily since they were opened for signature. Currently, 140 nations
124
have ratified Protocol I, while 131 nations have ratified Protocol II. As a strictly legal matter, the United
125
States is only bound by the provisions of Protocols I and II that reflect customary international law.
However, the reality of coalition warfare and OOTW frequently places the United States in a leadership

116
See Parks Memorandum, supra note 9 (Mr. Parks explains that the United States came to the aid of the legitimate government of
Panama and was thus not involved in a “contention” with that government.
117
Id. at para. 8.
118
The United States received criticism from a number of sources, must notably the United Nations. On December 29, 1989, the UN
General Assembly adopted a non-binding draft resolution “to strongly deplore” the United States’ “invasion” of Panama. Twenty states
voted against the resolution, including Panama. See GAO Fact Sheet, supra note 114, at 3.
119
“Guillermo Endara was sworn into office on a U.S. base approximately 1 hour before the invasion took place. Prior to the invasion,
the U.S. government had officially recognized Eric Arturo Delvalle as the legal president of Panama. Delvalle had been installed by
Noriega as president in 1984 but was removed from office in February 1988 by the legislature after he attempted to dismiss Noriega as
head of the Panama Defense Forces. Id. at 4.
120
This was the shared opinion of the Departments of Defense and State and stood up to the investigation conducted by the General
Accounting Office. Id. at 2-4. But see United States v. Noriega, 808 F. Supp. 791, 795 (S. D. Fla. 1992), supra note 41.
121
Protocols I and II, supra note 14.
122
See 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 1554 - 1555(Yves Sandoz ed., 1987) [hereinafter SANDOZ].
123
See Lieutenant Commander James P. Winthrop, Note Law of War Treaty Developments, Army Law., Aug. 1994, at 55 - 57
(Winthrop reported that the “DOD Law of War Working Group has undertaken the review of Protocol I” and the review process was
expected to proceed slowly). At the date of this essay went to print, the working group’s review was still underway.
124
Id.
125
See Michael Matheson, then United States Department of State Deputy Legal Advisor, Address Before the Sixth Annual American
Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and
the 1977 Protocols Additional to the Geneva Conventions, reported in 2 AM. U.J. INT’L L. & POL ’Y 428 (1988) (Mr. Matheson reported
that the United States supports Protocol I articles 5, 10, 11, 12-34, 35 (1) and (2), 37, 38, 44 (portions), 45, 51 (except para. 6), 52, 54,
57 - 60, 62, 63, 70, and 73-89. The United States specifically objects to Protocol I articles 1(4), 35(3), 39(2), 43 and 44 (portions), 47,
55, and 56. The United States considers virtually all of Protocol II and many of the articles within Protocol I (including the articles that it
supports) to reflect customary international law). In 1987, President Reagan recommended to the Senate, within his transmittal letter,
that the Senate give its advice and consent to Protocol II. He recommended against the Senate giving its advice and consent for the
ratification of Protocol I (because of his concern about extending its application to wars of national liberation, expansive and ambiguous
environmental protections, and other concerns). See THE INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE
ADVOCATE GENERAL’S SCHOOL , UNITED STATES ARMY, OPERATIONAL LAW MATERIALS - POINT PAPERS (1996) [HEREINAFTER 1996
OPLAW MATERIALS].

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role over national forces supplied by states that are parties to both protocols. Consequently, its military
planners, lawyers, and leaders must formulate plans that accommodate the international law obligations of
these coalition partners.

Both commanders and judge advocates are keenly aware of the significance of international codes in
regard to coalition warfare. Judge advocates have been charged with the responsibility to bridge the legal
gaps that have surfaced during recent operations. Lieutenant General Anthony C. Zinni, recently stated
that our leaders routinely rely upon judge advocates to interact with their coalition force counterparts to
126
resolve these problems. He stated that the judge advocate’s success in this area is “critical to the
127
commander’s ability to hold the coalition together.” In short, whether the United States has ratified a
particular treaty or not, it must have interoperability in regard to how it will treat civilians. This reality
places great importance on treaties, such as the Protocols, that enjoy near universal acceptance.

The United States’ practice is demonstrated by its conduct in Operation DESERT STORM. Although, it
made a formal statement that it had not ratified Protocol I and was not, therefore bound by its terms, it
128
reported that the Protocol “nonetheless bear[s] mention.” In addition, it actively used provisions, terms,
129
and standards from Protocol I, during its analysis of a number of Law of War determinations. It was
only when provisions of the Protocol, “were not codifications of the customary practice of nations,” and
caused results wholly contrary to the intent of the traditional law that the United States adopted policies
130
that were not in complete accordance with it.

Along this line, United States action that seems violative of Protocol I provisions may not be contrary to
the international law obligations of our coalition partners. Many nations that did ratify Protocol I were
troubled by the same articles that troubled the United States and took reservations to those articles. For
example, the United States’ decision to target facilities that it was not “one-hundred percent” sure were not
131
dedicated to civilian purposes would seem in violation of article 52(3) of Protocol I. The United States,
after gaining the highest degree of verification possible (that the target was of a military nature), did target
such facilities. These decisions were not “per se” violative of our coalition partners’ law of war obligation
under the Protocol. For instance, the United Kingdom made a declaration to article 52 that provides it with
132
an obligation similar to the United State’s practice.

Finally, in the OOTW environment, where no nation is bound by law of war treaties, the United States
frequently applies these treaties by analogy. When it does this, it looks beyond just those treaties that it
has ratified, it considers treaties that its coalition partners have ratified and other treaties that serve as
133
guidance regarding a particular issue. The Protocols frequently fall into both categories. This
phenomenon takes us to our last tier, law by analogy.

126
Lieutenant General Anthony C. Zinni, The SJA in Future Operations, MARINE CORPS GAZETTE , Feb. 1996, 15, 16 (reporting that his
own use of judge advocates has elevated them to a level of importance historically reserved exclusively for the operations officer and
chief of staff. He cites the judge advocate’s knowledge of the highly complex international laws that control OOTW as an example of why
they are so important. Additionally, he specifically notes the frequent lack of agreement regarding international codes, and the extreme
importance of military practitioners to resolves these differences).
127
Id.
128
See DEP’T OF DEFENSE, CONDUCT OF THE PERSIAN GULF WAR FINAL REPORT TO CONGRESS 606 (Apr. 1992).
129
Id. at 614-617 and 625.
130
Id.
131
“In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other
dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.” Protocol I,
supra note 14, at art. 52 (3).
132
The United Kingdom stated that a specific land area could be a military objective if, “because of its location or other reasons, its total
or partial destruction, capture or neutralization in circumstances ruling at the time, offers a definite military advantage.” See THE HENRY
DUNANT INSTITUTE, THE LAWS OF ARMED CONFLICT - A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 714-
715 (Schindler & Toman eds., 3d ed., 1988)
133
Both Protocol I and II are reprinted in DEP’T OF ARMY PAMPHLET 27-1-1, PROTOCOLS TO THE GENEVA CONVENTIONS OF 12
AUGUST 1949 (1 September 1979) [hereinafter DA PAM 27-1-1]. DA PAM 27-1-1 is provided to every judge advocate before he

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 E. TIER FOUR: LAW BY ANALOGY

The protective regime found within the fourth tier was developed by judge advocates, as a result of
OOTW. Because the very definition of these operations is their “other than war” status, rules that govern
warfare do not regulate their execution. This absence of regulation creates a vacuum that is not easily
134
filled. In OOTW, starting with Operation JUST CAUSE, and continuing with Operations RESTORE
HOPE, UPHOLD DEMOCRACY, and JOINT ENDEAVOR, judge advocates have applied an analogized
version of the law of war to fill this gap.

The search for this law currently begins with the Department of Defense’s Law of War Program
Directive (DOD Directive 5100.77). Because of the nuanced and nascent nature of these operations, the
search has no end point. The problem has been dealt with differently in every recent operation, because
judge advocates have done an extraordinary job of learning from their past mistakes and successes.

When faced with civilians that do not have the benefit of any particular body law, judge advocates have
become increasingly adapt at finding portions of the law of war or other domestic or international codes
that, although not technically applicable, serve as guidance. These sources include, but are not limited to,
tenants and principles from the law of war, United States statutory and regulatory law, and peace time
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. In short, the methodology of protecting civilians is flexible. 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.

graduates from the Judge Advocate Officer Basic Course (before arriving at his first duty station). Much of the law of war instruction
provided during the basic course and other continuing legal education courses revolves around the Protocols.
134
Operation JUST CAUSE is cited as the first (well known) contemporary OOTW, instead of 1983’s Operation URGENT FURY.
Although URGENT FURY is frequently cited to as the first OOTW, it actually represents an international armed conflict. URGENT FURY
was the United States’ unilateral operation to remove a Marxist de facto government (the People’s Revolutionary Government), and
restore the constitutional government to the tiny Caribbean island of Grenada. Some point to the ostensible legitimate government of
Grenada’s 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). Operation URGENT FURY is, however,
typically referred to as the point of origin for Operational Law (as it is now practiced).

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 CHAPTER 14
DEPLOYMENT

Everyone will now be mobilized and all boys old enough to carry a spear will be sent to Addis
Ababa. Married men will take their wives to carry food and cook. Those without wives will take any
woman without a husband. Women with small babies need not go. The blind, those who cannot
walk or for any reason cannot carry a spear are exempted. Anyone found at home after receipt of
this order will be hanged.

Haile Selassie
Emperor of Ethiopia, 1935 (upon invasion by Italy)

This chapter is divided into four sections:

I. OVERVIEW
II. OFFICE ORGANIZATION & DEPLOYMENT FUNCTIONS
III. DEPLOYMENT PLANNING & CHECKLISTS
OPLAW Deployment Checklists (includes separate checklists for each substantive legal area).
1. Pre-Alert Preparation Checklist
2. Deployment Checklist
3. Post-Deployment Checklists
IV. EXERCISE DEPLOYMENTS (Includes both outline and text of legal briefing for deploying soldiers).

OVERVIEW

The primary purpose of this Chapter is to assist SJAs prepare for, and execute, deployment.
Timely, effective legal support in deployment depends in large part on the following live factors:

1.Familiarity with the general legal support needed during mobilization, so that SJA offices can be
organized and functions prioritized to provide such support.

2.Knowledge of the particular requirements in each substantive area of the law in order that all
legal personnel can be properly trained and so that proper references and forms will be on
hand when needed.

3.Participation in exercises to test the deployment plans that have been made and the training
provided.

4.Effective utilization of RC legal personnel wherever feasible (see Appendix D, this Handbook).

5.Establishment of good working relationships with key personnel within the supported unit.

OFFICE ORGANIZATION & DEPLOYMENT

The manner in which SJA offices organize for deployment depends upon the composition and
mission of the unit. Accordingly, each SJA office must develop a detailed plan and SOPs which ensure
both the successful deployment of the SJA office or element and the extensive legal support needed to
POM and deploy the supported unit. The following is a sample basic Deployment Plan for a division:

OSJA DEPLOYMENT PLAN

SJA planning for deployment is based on an assessment of likely conflicts in which the Division
may become involved and on several assumptions:

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 1.Contingencies may require deployment of the Battalion-sized Division Ready Force (DRF) with
no notice;

2. Although the DRF will be supported by a joint task force (JTF), it can expect little or no legal,
civil affairs, or combat procurement support from the JTF in the first several days of a
conflict;

3.Follow on deployment of the Division Ready Brigade and additional Divisional forces.

These planning assumptions result in the following plan for deployments:

1.One JA, normally the Chief of Operational Law, will be

prepared to respond to a no-notice alert at all times. In the event of an actual deployment, the JA
will join the staff of the DRF CDR and deploy with the task force to provide operational
law, civil affairs, and combat procurement support until reinforcement.

2. If the DRB reinforces the DRF, another JA, normally the assigned trial counsel, will deploy with
the Bde. The ranking JA will become the principal legal advisor to the entire task force.

3. If the Division HQ deploys, the SJA will deploy with such support as permitted by the
circumstances.

4. Normally, the entire OSJA will not deploy. Individual

soldiers will be prepared to deploy according to the deployment schedule (usually within one week
of notification).

5. Personnel designed to accompany the DRB and Division HQ should be prepared to deploy
immediately (within 18 hours of notification).

OPERATIONAL LAW DUTIES

SJA. Responsible for delivery of legal services to the Division. Ordinarily, the SJA deploys with the
Division CG and is situated so as to directly advise the Command Group and primary staff.

Deputy SJA. Assists the SJA and directly supervises the operational law function in garrison. Ordinarily,
the Deputy SJA deploys only when the entire Division deploys. When the DSJA deploys, he supervises JA
operations in the Division Rear CP. When the DSJA does not deploy, but the SJA does, the DSJA
manages the office. The DSJA is responsible for RC augmentation of the office.

Chief, Criminal Law. Supervises trial counsel and ensures, through them, that units are prepared for
deployment from the military justice viewpoint, by attachment of other deploying units for the administration
of criminal law and by making necessary arrangements with respect to accused, witnesses, and members
for cases affected by deployment. Ensures that pending cases are disposed of in an orderly manner prior
to deployment. Ensures that Rear Area/Home Station jurisdiction, including creation of provisional units, if
necessary, is properly established. Through SJA, provides advice on punitive policies and General Orders,
and proposes plans for handling criminal law matters in the AOR. Coordinates with Senior Defense
Counsel (SDC) to provide defense counsel during deployment. The Chief, Criminal Law is located in the
Division Rear CP upon deployment.

Trial Counsel. Responsible for LOW and other appropriate training (e.g. SOFA, ROE) for their respective
jurisdictions. Coordinates with Bde and Bn S-1s concerning attachment schemes for deploying units and
makes arrangements regarding accused, respondents, witnesses, and members in pending cases affected
by deployments. Reviews Bde OPLANs. Supports preparation for overseas movement
exercises(POMEXs) in supported Bde(s). Trial counsel for Bdes ordinarily deploy with the Bdes and are
located at the Bde Support Area (BSA). Other trial counsel, if deployed, are located in the Division Rear
CP.

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Chief, Operational Law. Plans and executes the operational law program. Coordinates operational law
training, reviews Division OPLANs, and coordinates with the Division staff in operational law matters.
Plans and implements an aggressive and comprehensive program to prepare Division units for deployment.
Deploys with the DRF or, if applicable, the Division Assault CP (if SJA does not deploy with the CG in the
Assault CP) to provide immediate operational law support. As the area of operations matures and
additional divisional units are deployed, becomes the principal operational law advisor to the CDR of
Divisional forces. When the Division HQ is deployed, the Chief, Operational Law, is located in the G-3
Plans cell in the Division Main CP.

Chief, Legal Assistance. Manages preparation for overseas movement (POM) programs and provides
other legal services as required. Coordinates with local bar and courts regarding legal assistance issues,
requirements, and stays necessitated by deployment. Serves as POC for Family Support Groups and
Support Centers. Deploys as required; is located in the Division Rear CP upon deployment.

Chief, Administrative Law. Assists in POM programs and provides advice on command policies and
General Orders, processing of conscientious objector applications, and processing of administrative
separations and other actions. Assists in the establishment and operation of Rear Area/Home Station
jurisdictions. Deploys only if entire Division deploys. If deployed, located in Division Rear CP.

Chief, Claims. Assists in POM programs and ensures that Division can conduct claims operations in the
AOR for deployed soldiers, and for Foreign Claims Act claimants through foreign claims commissions.
Provides advice on planning to limit losses to soldiers' property and automobiles when left at Home Station
during deployment. If deployed, located in Division Rear CP or, if activated, in CMOC. Plans and
executes claims mission IAW Claims Office Considerations, infra.

Legal Administrator and Chief Legal NCO. Ensures equipment and supplies are ready for deployment at
all times. In coordination with Chief, Operational Law, ensures deployment box contains appropriate
materials. Deploys as required.

LEGAL SUPPORT FOR THE DEPLOYING FORCE

Identify legal personnel who will deploy. Trial counsel will generally accompany Bde-sized task forces on
deployments. When units from one major subordinate command are attached to another, the counsel from
the larger unit will usually accompany the task force. Legal specialists assigned to the deploying Bns will
also deploy. Together, these personnel will provide support to the task force. Because there is no
provision for the Bde legal center to logistically support itself in the field, the trial counsel will usually
accompany the Bde HQ, and legal specialists will accompany their assigned Bn. The SDC will assign a
defense counsel to deploying units, as the SDC deems appropriate. A defense counsel should accompany
Bde task forces.

Identify the role of the JA during deployment.

1. The trial counsel accompanying the task force must meet with the CDR and members of his
principal staff prior to deployment, in order to determine their expectations of the JA during deployment
and the support the JA can expect from them.

2. JAs in an emergency deployment may be tasked to provide civil affairs support. Civil affairs
includes identification of local resources and support, minimizing local interference with US operations, and
generally helping the CDR in his dealings with the local populace. Civil affairs support for the Division
comes primarily from Army Reserve units, which may not arrive for some time after deployment begins.
Initially, the Chief, Operational Law provides civil affairs support to the DRF. JAs who deploy later, with
the DRB, should be prepared to assist in the Civil Affairs mission (see FM 41-10, Civil Affairs Operations).

3. In addition to identifying deployment duties, the JA must also see that resources are available
to permit transportation and communication between the Bde HQ, subordinate Bns, and, when it is
deployed, the Division HQ. The trial counsel must have access to the unit tactical operations centers

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(TOCs), both to learn about task force operations in the field and to provide appropriate advice concerning
operational law questions. Inclusion on TOC access rosters is a must.

DEPLOYMENT PLANNING AND CHECKLISTS

Effective planning and preparation is essential to the success of any deployment, and, quite often,
much of this may be accomplished well in advance of the JCS Warning and Execute orders. This includes
routine preparation unrelated to specific missions, as well as mission-specific preparation and planning.
The result is an efficient and speedy deployment when an Execution order is received.

Perhaps the most useful, yet most neglected, preparation procedure is that of visiting with fellow
OPLAWYERs in other units. This includes not only higher HQ, but with other Divisions that will most
probably be called together as part of the deployment Task Force. In virtually all the areas described
below, prior coordination with other units will pay handsome dividends upon actual deployment.
Standardization of policies (or at least comparison of annexes) may prevent many unforeseen problems,
and reduces the "recreating the wheel" effect--especially for new OPLAWYERs.

8 Steps for
Deployment Preparation

The JA must be aware of those countries to which his unit, as a part of the Army component of a
Unified Command, is most likely to deploy. After identifying which international agreements are relevant to
such deployments, concentrate on the following 8 areas of deployment preparation:

1. OPLAW Training (Law of War Training at Chapter 18, this Handbook; other training infra)
2. OPLAN Development and Review (Chapter 6, this Handbook)
3. Developing the Legal Annex (Chapter 6, this Handbook)
4. The Deployment Checklist (this Chapter)
5. Personal Preparation for Deployment (this Chapter; Chapter 6 and 19, this Handbook)
6. Preparation of the Legal Deployment Package (this Chapter; Chapters 6 and 19, this
Handbook)
7. Effecting the Deployment SOP (this Chapter; Chapter 6, this Handbook)
8. Developing Rules of Engagement (ROE) (Chapter 8, this Handbook).

OPLAW Training

Routine unit training is part of the preparation that all units must undertake to ready themselves for
deployment. The JA contribution to unit deployment training is a comprehensive operational law training
program consisting of two parts: judge advocate education and soldier education.

Judge Advocate Education and Training. SJAs and DSJAs are trainers for their subordinates. Each JA
must develop expertise in OPLAW and proficiency in military skills. Training should include weapons
qualification, mastery of military skills, and a robust physical fitness program -- essential for JAs who must
be ready to deploy into stressful, physically challenging environments, and who must provide legal support
and services when fatigued. Familiarity with this Handbook is a start, but the Chief, Operational Law,
should prepare additional materials and classes on OPLAW subjects. Include programs such as "Staff
Rides" (done by XVIII Airborne Corps) and build "Smart Books" for training young officers. All JAs should
deploy to the field as much as possible to become familiar with the field environment and to become part of
the "operational team."

Soldier Education. Deploying soldiers must have a sound knowledge of the law of war and ROE.
Additionally, key members of the deploying unit must have knowledge of SOFA provisions, claims, fiscal
law, and procurement matters. Note also that military justice training, as well as other OPLAW instruction,
may be required for reservists activated for deployment. Instructional requirements may be established by
regulation or directives from higher HQ, or instruction may be necessitated by practical considerations. In
preparing for any deployment, JAs must plan for, and involve themselves in, all necessary training and

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education. A key aspect of predeployment training, if time permits, is realistic vignette training which
integrates ROE and the law of war. The SJA is a key player in planning and executing this training.

QUESTIONS FOR A NEW SJA

Is there an active OPLAW program?

Have attorneys received OPLAW training?
Is there an ongoing OPD/NCOPD program which includes OPLAW?
Is there a full-time OPLAW attorney?
Is the office actively engaged in reviewing OPLANS?
Do OPLAWYERS have TOP SECRET clearances?
Do OPLAWYERS have access to the TOC?
Do OPLAWYERS have solid working relationships with G-3 counterparts?
Do OPLAWYERS regularly participate in field and other exercises?
Does the OSJA have a realistic and periodically evaluated deployment plan and Field SOP?
Do all SJA personnel know where (Bn, Bde, Main CP, Rear CP, CMOC) they are located upon
deployment?
Are all OSJA personnel deployable?
Are all OSJA personnel proficient in military skills?
Is there a program to train soldiers on the LOW and ROE?
Is realistic LOW training integrated into field exercises?
Is there a clear understanding of ROE staffing, training, and implementation procedures?
Are specific attorneys identified and prepared for immediate deployment?
Are deployment boxes sufficiently stocked and periodically updated?
Are replacements available and on the TPFDL once the first deployment occurs?
What is the plan for RC augmentation, both in the AOR and at Home Station?
Where does the OSJA obtain vehicular support, tentage, pallets, etc.? (NOTE: This should be
"NCO business," but requires some SJA attention. The temptation in many offices is to
avoid drawing vehicles in garrison because of maintenance and accountability
considerations. The office then must deploy and is shocked to learn that no or limited
vehicular support is forthcoming. A "lesson learned" over and over again -- if you
want a vehicle in the field, you must draw, use, and maintain it in garrison and in
exercises.)

OPLAW DEPLOYMENT CHECKLISTS

This sample checklist is divided into 3 sections: PREPARATION, DEPLOYMENT, and POST-
DEPLOYMENT.

1. Preparation Checklist.

Personal Considerations. Personal readiness reduces turmoil and uncertainty, increases individual
confidence, and helps establish credibility.

__ Do you have TA-50 and is it serviceable?

__ Have you familiarized yourself with, and qualified with your assigned weapon?
__ Take care of personal affairs. Consider: a will, power of attorney, automatic deposits/payment of
bills, child care plans, etc. Encourage subordinates to do the same.
__ Are your dog tags correct (particularly your blood type)? Wear them!
__ Is your field equipment and TA-50 assembled in accordance with your unit's field SOP?
__ Do you have a TOP SECRET security clearance? Get one if possible! Operational decision
making is based on Top Secret and compartmented information. If you don't have access to this
information, your advice will be limited and you'll look foolish.
__ Are your shots (and shot records) up to date?
__ Is your "A Bag" packed and ready to deploy at all times? (Check the FSOP for items in addition
to: additional uniforms, field jacket, socks and underwear, shaving gear, toothbrush and paste,

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 wash cloth, soap, towel, etc.). A packed bag allows you to minimize personal turmoil and be able
to focus on the mission when it's time to go to the field or to war.

Office Considerations.

GENERAL

__ Is SJA office on the distribution list for message traffic and for all OPLANS/CONPLANS?
__ Is a JAG attending all staff briefings? By becoming part of the normal staff team, you won't be
overlooked during deployment planning. If your unit is overlooking the lAGs, talk to the S-3/G-3 and
get on the notice list.
__ Does SJA office have sufficient transportation to move personnel and equipment to the field?
__ Are the vehicles dedicated to the SJA office (vs. HHC)?
__ Is there a licensed driver for each assigned vehicle?
__ Do all personnel have a military driver's license?
__ Can the office deployment package be deployed on the available transportation?
__ Has the load plan been tested?
__ Does the office have sufficient field equipment (tentage, chairs, field tables, field desks, etc.) to be
able to operate in a field environment for an extended period of time?
__ Do the personnel know how to set up the tentage and break it down quickly?
__ Are the field desks fully stocked with supplies and ready for deployment?
__ Are there portable manual typewriters so that power outages won't stop the office operation?
__ Are there flashlights and batteries?
__ Is the deployment library ready (fully stocked) for immediate deployment?
__ Does the office have an effective Field SOP (FSOP) and Readiness SOP (RSOP)? Simplicity and
workability should be the goal.
__ Has everyone been POMd? Are all fully qualified to deploy?
__ Do all office personnel have serviceable TA-50/field gear? INSPECT IT!
__ Do parents have plans for the care of their children? See AR 600-20, Family Care Plan
__ Does the office have an up-to-date alert roster and has it been tested?
__ If after-action reports of prior deployments exist, review them!

INTERNATIONAL LAW CONSIDERATIONS

__ Are there 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).
__ Ensure regular and thorough training in the law of war (Hague Regulations and Geneva
Conventions) and Code of Conduct is provided to CDRs and soldiers. Emphasis should also be
given to the treatment of property, the taking of war trophies, and ROEs.
__ Ensure law of war, ROE, and operational law problems are included in exercises. See AR 350-41.
__ Regularly review operations and contingency plans for the unit. Pay close attention to the ROE,
targeting, and PW portions of the plans. Numerous law of war (and "front page") issues can
spring from these areas, if they contain misleading, incorrect, or illegal information.
__ Determine whether deploying JAs 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.
__ Ensure all personnel have the necessary security clearances to review operation plans and
contingency plans and attend briefings and planning conferences.
__ Determine potential legal problems in the countries of probable deployment (e.g., unique religious
laws that would affect US personnel, limitations on the use of military vehicles in country, unique
customs or currency laws, and any significant terrorist threats). If potential legal problems exist,
they should be addressed in the OPLAN or CONPLAN for that country.
__ Do any international agreements need to be negotiated prior to deployment of US Forces?
__ Become part of the operational team by attending all coordination and planning conferences.

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__ When working in planning groups, assist in areas other than the law. Become a team player.
__ Does your deployment package have the necessary ARs, FMs, DA PAMs, etc.?
__ Make sure that the deployment package has a camera, film, and sworn statement forms.
__ Submit JA portions of upcoming exercise play on time (and ensure they are keyed to the master
scenario plan). The planning process can begin a year in advance. The Master Scenario Events
Lists (MSELs) are usually the way exercise play is keyed to the master plan. These are usually
submitted six months before the exercise. The people you work with during this year-long planning
process are the same operators you will deal with as the operational law adviser in combat. Giving
them a good timely product during this exercise planning phase is an excellent way to demonstrate
your competence.
__ Contact the G-2 and G-5 if an interpreter will be necessary.
__ Consider solving recurring issues such as war trophies, ROE, requisitioning of property,
contracting, etc. by working them into SOPs, exercises, and the like. Make key contacts now!

International and Operational Law References

All OPLAW Doctrine References listed in Chapter 1, this Handbook.
TJAGSA Law of War Deskbook (1996).
TJAGSA Intelligence Law Deskbook (1996).
TJAGSA Operational Law Materials (1996).
Manual for Courts-Martial, 1984 (1996 Edition).
AR 27-14, Selected International Agreements (Vol II).
AR 27-50/SECNAVINST 5820.4G, Status of Forces Policies, Procedures, and Information.
AR 190-41, Customs Law Enforcement.
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. 5030.49, Customs
FM 27-2, Your Conduct in Combat Under the Law of War (formerly TC 27-1).
FM 27-10, The Law of Land Warfare with change 1 (if you can only take one Law of War document, this is
the one to take!).
FM 41-10, Civil Affairs.
NWP 1-14M, The Commander's Handbook on the Law of Naval Operations and Annotated Supplement.
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, Instructor's Guide to The Law of War.
AF Pam 110-20, Selected International Agreements.
AR 190-8, PW Employment.
AR 190-XX (1996), War Trophies.

CLAIMS CONSIDERATIONS
__ Ensure that at least two, one-member, and one three-member foreign claims commissions are
available for appointment by the Cdr, US Army Claims Service (USARCS). Periodically review the
commissions to ensure their members are available and prepared for deployment.
__ Determine whether any international agreements govern claims responsibility.
__ Determine if single-service responsibility exists for probable areas of deployment. If it does not
exist, then coordinate with USARCS to establish one (if necessary).
__ Prepare a claims kit, to include manual typewriter and required forms. The forms must be in the
language of the local nationals.
__ Assemble and train a claims expert. Anticipate and prepare for the following:

(1) The JA should assist the G-4 in obtaining extended purchase authority, LAW AR 37-21, up to
the limit of 10 USC 2304 for Ordering Officers and Class A Agents, down to battalion level, if

14-7
 necessary; develop guidance for the use of operations funds; and assist the Class A Agents in
distributing such funds.

(2) 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.).

(3) The probable need to ratify irregular acquisitions, (i.e., those made by individuals not
authorized to commit the US). 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).

(4) 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?

(5) How is the furnishing of goods and supplies by the US forces to allied forces to be
accomplished.

__ Review legal studies and materials dealing with the area of operations (AO).

Claims References and Forms

References
AR 27-20, Claims, chs. 3 & 10.
DA Pam 27-162, Claims, chs. 4 & 6.
Chapter VIII (General Claims Provisions), JAGINST 5800.7c, Manual of the JAG (JAGMAN), 3 Oct 90
JAGINST 5890.1, Administrative Processing and Consideration of Claims on Behalf of and Against the US,
17 Jan 91.

Required Forms
SF 95, Claim for Damage or Injury, with simplified instruction forms (1000 each).
DA Form 1668, Small Claims Certificates (500 each).
SF 1034, Vouchers (500 each).
DA Form 3, Individual Claims Data Reports (500 each).
DA Form 1208, Report of Claims Officer
DA Form 1666, Settlement Agreement (500 each).
DA Form 1667, Claims Journal
DA Form 1668, Small Claims Certificate

CRIMINAL LAW CONSIDERATIONS

__ Ensure all deploying soldiers are assigned or attached to a deploying unit for UCMJ purposes.
__ Ensure all rear detachment personnel are assigned or attached to a follow-on unit for UCMJ
purposes.
__ Ensure the criminal law section's deployment materials are up-to-date and necessary ARs, PAMs,
and forms are present. Ensure that a manual portable typewriter is included.

Criminal Law References and Forms

References
Manual for Courts-Martial, 1984.
AR 15-6, Procedures for Investigating Officers and Boards of Officers.
AR 27-10, Military Justice, with local supplements (if any).
AR 27-50, Status of Forces Policies, Procedures, and Information.
AR 190-30, Military Police Investigations.
AR 190-34, Correctional Custody.

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AR 190-41, Customs Law Enforcement.
AR 190-47, US Army Correctional System.
AR 195-2, Army Criminal Investigation Program.
AR 195-5, Evidence Procedures.
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.

Required Forms.
DD Form 457, Investigating Officer's Report (50 each).
DD Form 458, Charge Sheet (200 each).
DD Form 497, Confinement Order (50 each).
DA Form 2627, Report of Proceedings Under Art. 15, UCMJ (300 each).
DA Form 2627-1, Summarized Record of Proceedings Under Art. 15, UCMJ (300 each).
DA Form 2823, Sworn Statement (100 each).
DA Form 3169-R, Report of Judicial and Disciplinary Activity in the Army (10 each).
DA Form 4430-R, Report of Results of Trial (200 each).
DA Form 4916-R, Certificate of Service/Attempted Service (100 each).
DA Form 4917-R, Advice as to Appellate Rights (200 each).
DA Form 5110-R, Art. 15 Reconciliation Log (50 each).
DA Form 5111-R, Summary Court-Martial Rights Notification/ Waiver Statement (50 each).
DA Form 5112-R, Checklist for Pre-Trial Confinement (50 each).
SFs 1156, 1157, Witness Payment Forms (50 each).
Local Forms, Form Letters, Disposition Forms Forwarding Charges, Referring Cases to Trial, etc.

2. Deployment Checklist.

Office Considerations.

GENERAL
__ Obtain a copy of the Operations Order (OPORDER). If the OPORDER is based on an OPLAN
previously reviewed by the SJA Office, compare the two for changes. Look, particularly, for
changes in the mission, assumptions, and rules of engagement.
__ What is the legal basis for the military action? Particularly in OOTW, this question may arise. Brief
CDRs on the legal basis (or bases). Ensure the reasons you cite are consistent with the chain of
command, up to the National Command Authority.
__ Monitor (or man) the Emergency Operations Center (EOC). Always be conscious of Operational
Security (OPSEC).
__ Account for all personnel, draw assigned weapons, and check field equipment. Establish security
for individual weapons while office personnel conduct their work.
__ Ensure SJA personnel, particularly those who deploy with the advance echelons, are assigned or
attached to the deploying unit for messing, administrative support, and UCMJ purposes.
__ Review the Field SOP/Readiness SOP and load plans.
__ Establish deadlines for the loading of each section of the SJA office. Prepare a sequenced
deployment timeline. Details depend upon the mission and your unit's deployment sequence.
__ If the mission appears to require more expertise in one specialty area (e.g. Claims, International
Law, or Contracts), allocate adequate personnel to those areas.
__ Review the legal annex to ensure that it supports the mission and that your office can support the
requirements set out in the annex.
__ Determine from G-1 whether reserve JAGSO units will augment the SJA office. If so, plan for
allocating their resources where needed. Ensure these teams are attached to a unit for quarters,
messes, administrative support and UCMJ purposes.
__ Determine where the unit's Command Post (CP), logistical base, and other pertinent staff elements
will be located. Determine where to locate the main SJA office and selected sections, if they need
to be separate (e.g. Claims and Operational Law). Have an officer in charge of each site.

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__ If an interpreter will be needed for contracting, claims, or investigations of combat incidents,
coordinate with the G-2 or G-5 to ensure this support will be available.
__ Detail someone to keep notes or record lessons learned, ideas, details of incidents, etc. These will
be invaluable when you later have to prepare an after action report.

INTERNATIONAL LAW CONSIDERATIONS

The International/Operational Law Officer should be the SJA office's point of contact at the EOC
and should keep the office advised at all times. He should attend all EOC briefings.

__ Does each SJA section have copies of the SOFA, maps, etc. of the deployment area?
__ Review the OPLAN/OPORDER for potential problems. If it has been previously reviewed looked
for changes and focus on the mission statement, assumptions, and ROEs.
__ Reread the country law study. If needed, request information from the higher headquarters SJA
(Unified Command level; e.g., SOUTHCOM), or OTJAG, International/Operational Law Div.
(Pentagon (703)695-3170).
__ Coordinate with the G-5/Civil Affairs office to determine the existence and terms of any Civil Affairs
Agreement with the Host Nation (HN).
__ Give briefings on the Law of War and ROE to troops awaiting transportation.
__ Consider how the unit will transition into a stabilization phase after combat. Develop peacetime
ROEs with the CDR and G3.
__ Ensure an OPLAWYER is scheduled for early deployment with the command group.
__ Double check the Operational Law deployment package. Ensure key items (to include camera and
film) are present. Then, make sure it gets loaded!

LEGAL ASSISTANCE CONSIDERATIONS

__ Establish POM/POR sites to rapidly process deploying personnel. It may be necessary to draw
upon other cross-trained attorneys in the office to assist in this effort.
__ Are there sufficient forms to handle last-minute legal assistance problems at departure site?
__ Spot-check deploying soldiers to ensure basic legal assistance needs have been met.
__ Notify JAs remaining at the installation of follow up legal assistance requirements.
__ If reservists will augment the SJA office, leave guidance.
__ Organize and initiate legal assistance briefings for dependents.

Legal Assistance References and Forms (See Chapter 19, this Handbook)

CLAIMS CONSIDERATIONS

__ Coordinate with Chief, Management and Budget, US Army Claims Service (USARCS), to ensure
that funds are available to pay claims after deployment has begun.
__ Review the OPLAN/OPORDER and any SOFA to see if any international agreements govern
claims responsibility.
__ Contact the Chief, Foreign/Maritime Claims Division, USARCS, to finalize appointments of the
foreign claims commissions (at least two one-member and one three-member commissions). If the
country to which you are deploying comes within the geographical responsibility of certain Unified
Commands, the CINC can appoint claims commissions. See AR 27-20, paras. 1-3c & 1-3e 10-14).
__ Coordinate with the Corps of Engineers Real Property Team to ensure prompt real estate lease
support upon deployment.
__ Coordinate with the Comptroller to have Judge Advocates designated as Class A agents for
purpose of solatia payments.
__ If deploying as part of a UN Force, check to see if the UN already has a claims operation
in place and ascertain, if possible, how this will affect your claims preparations.

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CONTRACT LAW CONSIDERATIONS

__ Ensure the contracts deployment package has all of the key regulations, pamphlets, and manuals.
__ Review OPLAN/OPORDER to see if overseas procurement will be necessary.
__ Review all contract considerations discussed under the PREPARATION section above.

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.
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

CRIMINAL LAW CONSIDERATIONS

__ Determine if a SOFA exists or arrangements have been made for exclusive jurisdiction over US
personnel. If there is a SOFA, is it expressly applicable during hostilities?
__ Plan for the exercise of criminal and administrative jurisdiction over personnel left behind.
__ Ensure deploying soldiers are assigned or attached to a deploying unit for UCMJ purposes.

Plan for continued military justice operations. Depending on the anticipated duration, consider the following:

__ 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 JAs).
__ Will prisoners serving sentences locally be released to deploy with their units?
__ Ensure deployed JAs have access to an interpreter for interviews and/or depositions of local
witnesses. The Claims JA 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.

3. Post-Deployment Checklist.

Office Considerations.

General. Monitor the various sections of the SJA office to ensure that the office's assets are applied
where the need is greatest. For example, during the initial phases of the deployment or when combat
activity is the greatest, the Operational Law section will undoubtedly be much busier than the other
sections. As the situation moves into a stabilization phase, claims and contracting will become busier.

__ Establish communications and a courier service with rear echelon JAs.

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__ Keep superiors informed.
__ Keep reports simple and have them address only essential information.
__ "Bad news does not get better with time."
__ Observe OPSEC.
__ Check the activities of each section daily, especially if they are not at the same location.

INTERNATIONAL LAW CONSIDERATIONS

The early stages of a deployment will usually have a multitude of issues of International/OPLAW
concern. Close coordination/contact must be maintained with the operational section (G-3 and the
command group). Trial counsel or legal advisers assigned to each subordinate unit (usually Brigade size
units) should watch for potential International/OPLAW issues in their units.

__ 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.
__ In a permissive environment (either no hostilities or we are supporting a HN), establish liaison with
the US Embassy or Department of State representatives. In this regard, activities should be
coordinated with the appropriate sections of the Embassy.
__ Coordinate with provost marshal (PM) and logistics personnel to ensure that provisions have been
made for PWs, to include security, housing, food, religious needs, barbed wire, transfer from other
US military services or allies, medical attention, interpreters, separate accommodations for
females, if any, and reporting to the ICRC. The following groups will enjoy PW status:
1.Regular armed forces of a party to the conflict;
2. Members of resistance movements who are commanded by a
person responsible for subordinates, who have a fixed emblem recognizable at a distance, carry
arms openly, and conduct their operations in accordance with the laws and customs of war;
3. Civilians accompanying the armed forces.
4. Other categories of individuals entitled to PW status,
but who are rarely encountered, are members of a levee en masse, members of regular armed
forces not recognized by the detaining power, military personnel interned in neutral countries, and
demobilized soldiers. In case of doubt as to entitlement to PW status, such status should be
afforded the individual, pending resolution of their status by a tribunal of three officers, at least one
of whom should be a JA. A directive should be prepared and promulgated describing how an Art.
5 Geneva Prisoner of War Convention. Tribunal will be constituted and implemented (if it is not
already in the legal annex).
__ Ensure arrangements have been made to recover the enemy's 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 JA should conduct the preliminary investigation.
__ Coordinate with other US representatives in country, such as the State Department.
__ Assure close and continuous coordination with the G-5/Civil Affairs office.
__ Be prepared for sustained involvement with representatives from US Agency for International
Development (USAID) and State Department, including Embassy personnel.
__ Have guidance prepared for the command concerning War Trophies. 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.

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__ 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 such
cases of misuse of protected places, incidental or 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 PWs 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 US 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 the command on the seizure and requisition of government and private
property.
1. Movable property, such as vehicles belonging to the enemy state, may be used for military
purposes. Real property belonging to the enemy state may also be used, as appropriate.
2. Private property cannot be confiscated.
3. Private property may be seized for use by US forces if it has a direct military use, such as
ammunition, weapons, vehicles, or communication devices. At the end of hostilities, however, the
property must be returned and compensation must be paid for its use. Thus, records and receipts
must be kept of all seizures.
4. Property and services may be requisitioned and, to the extent necessary, force may be used to
effect requisition. Requisitions are based on military necessity and are made pursuant to the
authority of the senior area CDR. Payment or receipt must be given for the requisition. There are
humanitarian limits on the ability to requisition. For example, medical supplies and foodstuffs may
be requisitioned only for the use of the occupying force and only after due consideration for the
needs of the population.
__ In a permissive environment, the SJA should advise the CDR to provide a liaison officer (preferably
the SJA or one of his officers) to the US Embassy in order to represent the CDR at country team,
political, or military meetings, etc.
__ Coordinate with the G-1 and PM concerning the preparation and issuance of special ID cards in
the local language. Such cards should be especially useful in a permissive environment for local
police assistance purposes.
__ In a permissive environment in which US forces are assisting in the stabilization phase, ensure that
the HN has granted authority to US MPs to apprehend or arrest local nationals. This will normally
be accomplished through an ordinance or executive proclamation.
__ Coordinate with the JA (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 US force in country. Ensure members of the HN police force understand the status of US
nationals.
__ As the hostilities stabilize and the combat phase ends, coordinate with the PM and the ICRC to
arrange repatriation of PWs.

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CLAIMS CONSIDERATIONS

__ Establish a central location for the receipt of claims.

__ Publicize the existence and location of the claims processing site, e.g., by radio and leaflet, in
English and the local language.
__ Coordinate with the PM in order to establish security for the claims processing site.
__ Claims personnel should become familiar with the conduct of the military operation and the nature
and date of the resultant damage.
__ Obtain damage surveys from Civil Affairs, Disaster Assistance Survey Team, and USAID.
Investigate and adjudicate claims within applicable settlement authorities.
__ Coordinate with Comptroller for payment of claims. Checks are preferable to local currency, as
currency would cause security problems at the claims processing site. Also, coordinate with the
Comptroller on irregular procurement claims.
__ Ensure liaison with the Corps of Engineers real property team for real property claims, and
leasehold acquisition of real property assets by deploying force or retroactive leasing of property
(AR 405-15). Take pictures of leasehold property to establish condition of the property at the time
of the leasehold.

LEGAL ASSISTANCE CONSIDERATIONS

In the area of deployment, the Legal Assistance section should:

__ Respond to inquiries from soldiers in country.
__ Establish liaison with communications, transportation, and aviation elements for contact and courier
service with JAs in the rear echelon (the installation from which the deployment took place).
__ Establish liaison with US Consulate at deployment location for overseas marriage and adoption
coordination, in addition to emergency leave procedures.

At the home installation, the Legal Assistance section should:

__ Follow up on legal assistance cases referred by deployed LAOs.
__ Coordinate with communications, transportation, and aviation elements on the installation to ensure
contact and courier service with deployed LAOs.
__ Extend legal assistance office hours, as necessary, to handle legal assistance problems of
working dependents.
__ Continue legal assistance briefings for family members. Notice of these meetings should be mailed
to the individual, using previously obtained mailing addresses and disseminated by post newspaper
and local television and radio media.
__ Coordinate with local banks and financial institutions to expect a higher usage of powers of
attorney.
__ Coordinate with local courts concerning the failure of deployed members to appear.
__ Be prepared to brief and assist survivor assistance officers.

CONTRACT LAW CONSIDERATIONS

__ 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.

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CRIMINAL LAW CONSIDERATIONS

__ 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.
__ Ensure that, if Art. 32 investigations and courts-martial will be conducted during the deployment,
courtroom facilities have been located and equipped.
-- 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.

EXERCISE DEPLOYMENTS

A deployment for an overseas exercise is the type of deployment scenario most likely to confront
JAs, as Army personnel increasingly participate in exercises in diverse areas of the world, to include
Europe, Korea, the Philippines, Central and Latin America, the Middle East, and North Africa. Thus, it is
particularly important that JAs be familiar with the functional legal issues associated with such exercises.
Much of the guidance provided in connection with functional operational law issues evolving from combat
deployments is equally applicable to exercise deployments.

Planning for Exercises

The planning phase of an exercise is usually the longest phase. This phase develops all support
plans that govern the execution and post-exercise phases. Planning begins immediately after the decision
has been made to conduct an exercise, and the planning steps include preparing an exercise directive,
assigning responsibilities for planning, preparing a supporting plans schedule, publishing a Master Scenario
Events List (MSEL), conducting a reconnaissance, completing the exercise support plan, preparing the
scenario, preparing and issuing the OPLAN, publishing the letter of instruction (LOI), preparing the terrain,
and conducting a rehearsal.
A MSEL is usually published by the G3 and is used to shift phases of the exercise and to highlight
the significant events that will occur during the exercise. It is necessary, therefore, that law of war play be
one of the MSEL items.
The training objectives and the echelon at which the exercise is to be conducted will determine how
complex planning steps will become. For example, at Battalion level, there may be little or no need to
conduct detailed research or to write a planning schedule. Much of the planning can take place during
training meetings. However, at Division level, research and written planning schedules are necessary.
They can be the key to a successful exercise. For the training exercise to run smoothly and accomplish its
objectives, written plans must contain practical guidance for the exercise participants. These plans are
distributed to CDRs, controllers, and opposing forces (OPFOR).
All training exercises require control. Some, such as tactical exercise war table (TEWT), need only
CDRs. Others, such as command post exercises (CPXs) and field training exercises (FTXs), require a
formal control system responsible for conducting the entire exercise. The control system for any exercise
should ensure that the exercise is followed and that exercise objectives are obtained. Controllers ensure
that events occur at the right time and place, in accordance with the scenario and schedule. Umpires

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determine the outcomes of engagements, fires, obstacles, and support activities. They report outcomes to
the players of the exercise and the controllers. Evaluators observe activities in order to determine whether
tasks are performed to standard. Ideally, one person should not serve as controller, evaluator, and umpire
during the same exercise. As the focal point for controlling each exercise, the exercise control center will
portray the higher headquarters of the player unit. It will also be responsible for the administration and
logistics necessary to support the exercise. The chief controller will coordinate all activities of the control
organization in accordance with the exercise directive.
For exercises such as CPXs that have no OPFOR, umpires assess damage and casualties with
the use of published assessment and computation tables. For exercises such as FTXs, that have OPFOR,
umpires with player and OPFOR units should determine the effects of fires and damage. For instance,
when an observer locates a target and calls for artillery fire, the unit umpire gets the fire request
information and informs the company umpire of the impact location. This information is passed from the
friendly to the OPFOR umpire, who assesses casualties and damage based on damage tables, accuracy
of fire, and subjective judgment, as appropriate.
OPFOR units are trained and equipped to confront US units with realistic opponents that look and
fight like potential adversaries. Well-equipped OPFOR units are skilled in the tactics and techniques of a
potential adversary. They not only add realism to training exercises, but generate player enthusiasm.
Soldiers learn the potential adversary's tactics and doctrine, and OPFOR units encourage effective
intelligence gathering procedures, electronic warfare techniques, operations security (OPSEC) measures,
deception measures, and unconventional warfare techniques.

EXPLAN Development and Review

Depending upon the nature, extent, and duration of an overseas exercise, the necessity for careful
and detailed preparation of an exercise plan (EXPLAN) may be as great or greater than that required for
an OPLAN. The JA must thus be an integral part of the EXPLAN development and review process. Many
of the same considerations posed in conjunction with a combat deployment must be examined. Of
particular importance in the exercise deployment scenario is the question of the existence of or necessity
for international agreements speaking to HN jurisdiction over US personnel and other related issues.

Functional Exercise Legal Issues

When a unit deploys, functional legal issues, or "real world" problems, will arise at both the
deployment location and at the home station. The SJA and the OPLAW JA must anticipate and prepare for
this situation, as the daily legal problems at the home station must be handled by a reduced staff, while the
exercise will generate new and demanding legal issues. The result is that the SJA office, as a whole, will
confront more work than normal, with fewer people in each location to handle it. The importance of
extensive predeployment planning cannot be overstated.

Following is a Briefing Outline to brief deploying soldiers. The full text is found at the end of this
outline.

DEPLOYMENT BRIEFING

A Legal Briefing for Deployment to ______________

I. INTRODUCTION.

A. Purpose.

B. Background.
1. Geography.
2. Government.
3. Role of Police/Military.
4. Religion.
5. Culture.

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II. ENTRY REQUIREMENTS.

A. Documents.
1. Passport, Visa, Military ID.
2. Immunization Record.

B. Status of Personnel.
1. Diplomatic Agent - full criminal/full civil.
2. Admin & Tech Staff - full criminal/limited civil.
3. Members of Service Staff - immunity for off duty.

C. Restrictions.
1. Weapons.
2. Drugs (Individual/Medical).
3. Currency.
4. Prohibited Items.

III. LAW.

A. Traffic.
1. Licensing.
2. Speed Limits/Road Signs.
3. Accident Reporting.
4. Insurance.
5. Punishment.
6. Special Restrictions.

B. Criminal.
1. Jurisdictional Rules.
a. Degree of Immunity.
b. NATO SOFA Model.
2. Individual Rights.
3. Reporting Crimes.
4. Special Offenses.
a. National Security.
b. Weapons.
c. Assault.
d. Insult.
e. Sexual Offenses.
f. Alcohol/Drugs.
g. Prohibited Items.
5. Punishments

C. Contracts.
1. Written.
2. Oral.
3. Attachment/Self Help.

D. Claims.
1. Against United States.
2. Against Individuals.
a. Torts.
b. Causation.
c. Liability.

E. Family Law.

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 1. Marriage.
2. Divorce.
3. Paternity.
4. Wills/Estates.

F. Miscellaneous.
1. Taxes.
2. Postal Restriction.
3. Photography.
4. Labor Law.
5. Local Customs.

IV. EXIT REQUIREMENTS.

A. Local Customs Inspections.

B. U.S. Customs Inspections.

SAMPLE LEGAL BRIEFING FOR DEPLOYMENTS

The US Army trains troops in many countries every year. This training includes sending
small teams as part of Military Assistance Training; entire battalions to participate in missions of extended
duration (e.g., MFO in the Sinai); and division or larger-sized units to participate in joint exercises (e.g.,
Bright Star series). For many soldiers, this may be their first time overseas and their curiosity, coupled with
the customs and laws of a foreign country, may cause problems for the soldier, and possibly embarrassing
diplomatic incidents for the United States.

The potential for such problems can be reduced by pre-deployment training and
information briefings. These briefings cover a wide spectrum of topics ranging from individual military duties
to the historical background of the foreign country. They should, but do not always, include a legal briefing
on the laws, rules, and customs of the foreign country, particularly those that may affect the unit
commander and his troops. Most deployments include opportunities for our soldiers to visit historical sites
and meet local nationals. In order to avoid problems for the soldier or problems within the host nation, we
have the responsibility to ensure our soldiers are aware of and respect local laws and customs.

The following discussion provides an outline for the deploying Judge Advocate to use in
preparing a legal briefing for soldiers. The outline must be modified based on the type of deployment.
Experience will result in a refinement of the areas that should be included. Most legal studies of foreign
countries concentrate on the structure and theory of the legal system and provide little information on the
specific laws as they would apply to soldiers. The average soldier needs to know the laws, not the theory.
Consequently, judge advocates working with operation plans should be aware of the countries within which
their units have operational responsibility; request information well in advance if scheduled as potential
deployment; and prepare a briefing for each of these countries. Sources of information include higher
headquarters (with the focal point being the unified command), the International/Operational Law Division
of OTJAG, the International/Operational Law Division of TJAGSA, and counterparts in other services. Any
publication concerning the foreign country should be reviewed. Country Law Studies, Country Studies,
Histories, and even tourist publications may include helpful information (and maps!).

The sample briefing is for an exercise deployment to Egypt:

I. Introduction.

A. Purpose. The purpose of the briefing should be explained in sufficient detail to ensure
the soldiers understand that the information will keep them out of trouble and potentially out of a foreign
jail.

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 B. Background. In order for the soldiers to appreciate the laws and customs of the foreign
country, they need to be aware of the country's place in the world and history. Since government is the
source of law, they should understand the basic structure of the government. Here points of similarity and
dissimilarity without our government should be stressed. Since in many countries the police and the military
are closely associated and since our soldiers will be working closely with the military in the foreign country,
the soldiers should be aware of this relationship. Finally, the religion and culture should be briefly reviewed,
so the soldiers will understand the differences and be more tolerant. This could avoid numerous problems
in the long run.

Much of the above information should be covered in detail in civil affairs briefings, but a
brief review/preview is worthwhile. It will reinforce the civil affairs briefing and provide a background upon
which the country's laws and regulations can be discussed.

II. Entry Requirements.

A. Documents. A logical starting point for the briefing is the point of entry. The First
requirement for entry is proper documentation. The soldier must understand what is required and why; the
consequences of not possessing the proper documentation; and how to respond if he or she is stopped
without proper documentation. The need for passports, visas, and identification cards should be clearly
defined. Many countries now have strict immunization requirements, so the importance of an up to date
shot record, including AIDS testing, needs to be mentioned.

B. Status of Personnel. US personnel may have one of five statuses. They may be have
full diplomatic immunity, administrative and technical staff immunity, service staff immunity, status under a
SOFA, or simple tourist status. If treated as diplomatic agents, they will have full civil and criminal immunity
from the laws of the foreign country. Administrative and technical staff personnel have full criminal and
limited civil immunity. Members of the service staff have immunity while in the performance of official duty.
The NATO SOFA model provides for jurisdictional immunity based on the type of offense. As a tourist, the
soldier is subject to full civil and criminal jurisdiction in the foreign country. Depending on the type of
deployment, the duration of the deployment, and the existence of any agreements, any of the above could
apply. Soldiers should be advised of the status that applies to them, what that means legally, and that they
continue to be subject to UCMJ jurisdiction at all times.

C. Restrictions. Entry into a foreign nation may carry special restrictions. Examples of
restricted items include weapons, ammunition, drugs (individual prescriptions and medical supplies),
currency, alcohol, and pornography. The restrictions applicable to the foreign nation must be impressed on
all soldiers to avoid entry being denied or, even worse, an arrest at the port of entry.

III. Law

A. Traffic. Regardless of where US forces deploy or the length of the deployment, our
soldiers will be operating tactical and administrative-use vehicles on the roads of the foreign country. They
need to be aware of licensing requirements, speed limits, and road signs if they are different from standard
US road signs. Accidents will happen, so it is important that they know the procedure for properly reporting
them. Some countries require the road to be cleared as soon as possible; others require the vehicles to
remain untouched until police arrive.

While some soldiers may drive off-duty, their military license may not apply. The
requirements for personal vehicle use should be covered to include licensing, insurance, and any other
special restrictions. This portion of the briefing should close with a few comments on general road
conditions and traffic density.

B. Criminal. Soldiers will be soldiers. On any deployment of extended length, soldiers are
sure to get involved in some degree of trouble that may result in criminal charges. They need to clearly
understand the risk and the consequences of their misconduct. The first point that should be stressed is
that they are always subject to jurisdiction under the UCMJ.

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 Second, they should understand who will prosecute them and under what circumstances.
Depending on their status in the country, they may be subject to U.S. jurisdiction, foreign jurisdiction, or
both. If they find themselves subject to foreign jurisdiction, they should be aware of their rights under the
laws of the foreign country and any agreement we may have with the foreign power. The best way to
analyze this is by comparing the rights of the individual under foreign law with the basic rights we expect
our soldiers to receive. Section 9, Article VII of the NATO SOFA enumerates seven rights that all US
personnel should be entitled to:
1) to a prompt and speedy trial,
2) to be informed, in advance, of trial of the charges against him,
3) to confront the witnesses against him,
4) to have compulsory process to obtain witnesses in his favor,
5) to be represented by legal counsel,
6) if necessary, to have the assistance of an interpreter, and
7) to maintain contact with US representatives who may also attend the trial.
Most of these rights are guaranteed by agreement with our allies. However, many of the nations to which
we send soldiers may not have these guarantees.

The discussion of individual rights should include an overview of the trial procedure. Many
countries operate under a civil law system in which the roles of prosecutors and judges are quite different
from their roles under our system. These differences should be pointed out so the soldiers have a general
understanding of the foreign criminal process.

Special requirements for reporting crimes and special offenses in the foreign country
should be stressed. An effective way to do this is by comparing the crime and punishment under our
system with a similar offense under the foreign system. Special attention should be given to criminal
offenses which are not crimes under our law (e.g., possession and consumption of alcohol in Saudi
Arabia). Also, customs or practices in the foreign country which would violate the UCMJ must be pointed
out. If our soldiers visit the local area and "go native," they need to be aware of any acts, which although
legal under the foreign law, might result in a court-martial or Article 15 punishment. Finally, "black
marketing' should be discussed. Most countries have strict prohibitions on the goods that may be
transferred to local nationals. Since most of the property we deploy with is imported tax free, the sale or
trade of these items would constitute a customs violation.

The types of punishments and, generally, the crimes to which they apply, need to be
discussed. Many nations require prisoners to work and the work may be hard physical labor. Some
continued military benefits may be available, while the soldier is in prison and these should be mentioned.
Prison conditions in most smaller countries, particularly less developed countries, are terrible. A graphic
description of these conditions may have a considerable deterrent effect on the soldiers and dissuade a
borderline soldier from taking a chance.

C. Contracts. On a routine deployment, most soldiers will not be involved in any

contractual matters. Consequently, the main area of concern in this area is oral contracts. Our society
generally treats only written agreements as binding. Although oral contracts are enforceable, parties to an
agreement do not consider themselves legally bound until "something" is put in writing. This is not true in
other countries, particularly countries with a low literacy rate. A soldier may ask a vendor to make
something, e.g., jewelry or carved handiwork, and later change his mind on the purchase. His request and
the work of the vendor may obligate the soldier to pay the full amount. If this is the law, soldiers must be
forewarned.

D. Claims. Claims may be filed against a soldier in his official capacity or personal
capacity. Claims against him in his official capacity are actually against the US Government and the work
of the Claims Judge Advocate. However, claims against the soldier in his personal capacity should be
addressed. The basic theory of tort liability should be reviewed and a comparison of tort liability to report
of survey liability could be used to clarity the issues to the soldier. Unique grounds for liability should be
discussed. For example, in many Islamic countries, an insult to family, morals, or honor is considered to

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be a basis for liability. If a soldier asks a Moslem girl for a date, he could be liable for money damages to
the girl and the other members of her family.

E. Family Law. This area of discussion depends on the length of the deployment. The
longer our soldiers are in a foreign country, the greater the chance they will become involved in matters of
marriage, divorce, and paternity. For example, the evidence and standard of proof in a paternity case may
vary greatly in a foreign country. We can expect our soldiers to become involved with local nationals, and
the longer the deployment, the greater the involvement. Most of these matters cannot be controlled, but
the soldiers must be advised of the legal ramifications of their actions.

F. Miscellaneous. This is the "catchall" section of the outline. A variety of matters may be
discussed here. Among them are taxes, labor law, postal restrictions, photography restrictions, and local
customs. Although taxes should not be a major concern, they should be considered because they may
either cause a misunderstanding or possibly benefit the soldier. In Germany, US forces personnel are
exempt from paying the federal sales tax. This can be a substantial benefit. Usually labor law is totally
inapplicable, but it may apply to contractors participating in the deployment and would apply to local
nations working for the US Army. To the extent our soldiers may be required to supervise or work with
these individuals, they should be advised of any special rules or requirements.

Local customs should be discussed in some detail. Some of the practices or customs in
our culture may be illegal or offensive in another culture. This could lead to insult, argument, and an assault
charge, or it could result in tort liability for an insult to someone's morals, honor, or family. This section of
the briefing, like the initial background section, can reinforce and supplement the civil affairs briefing.

IV. Exit Requirements.

A. Local Customs Inspections. Assuming the soldiers have survived the deployment and
are not staying behind in a local jail, two customs inspections are required. The first is a local customs
inspection by foreign authorities. Soldiers need to be briefed in advance of the articles which they may and
may not export. Usually, this inspection is cursory since the soldier is leaving the foreign country.

B. US Customs Inspections. The US customs inspections at the port of entry is much

stricter. The Customs Service has strict controls on what can be imported, and the list is extensive.
Soldiers should be provided copies of these lists, and items common m the foreign country to which
deployed should be pointed out. Examples include food, pets, furs, stuffed animals/toys, and some
manufactured goods. If the soldiers are aware of the controlled items in advance, they can avoid buying
them, wasting their money, and being stopped at the point of entry.

V. Conclusion.

The above discussion includes most of the areas that should be addressed in a legal
briefing prior to deployment. The briefing itself must be tailored to the duration and type of deployment. In
some special operations, other areas will need to be included. This will serve as a good starting point for
the deploying Judge Advocate, and any information which will assist the commanders and soldiers in their
day to day relations in the foreign county is worthwhile.

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 CHAPTER 15
SPECIAL OPERATIONS
The formation of the United States Special Operations Command (USSOCOM) under the
Goldwater-Nichols Reorganization Act (10 USC 167e(2)), and the great successes of special operations
forces (SOF) in Operation DESERT STORM, validated the significant role of US SOF. These forces train
for their wartime mission through an extensive series of CONUS and OCONUS combined exercises.
Additionally, they frequently deploy overseas in order to conduct security assistance missions. This section
will focus on the unique legal issues associated with Special Operations (SO) and on the role that the JA
should play in SO. Doctrine for SOF is stated in FM 100-25, DOCTRINE FOR ARMY SPECIAL OPERATIONS
FORCES (December 1991).

Applicable Law
SO often do not fit neatly into the legal framework which supports conventional military operations.
Nevertheless, the unique nature of the missions and the frequent need to conduct these missions in a
discreet fashion do not exempt these operations from the requirement to comply with domestic and
international law. In almost all cases, there are no special rules for SO.

The Department of the Army's (DA's) policy statement on SO recognizes the very special, often
sensitive, and extremely complex role played by SOF in peace and war. Nevertheless, DA requires that all
US Army SO comply with US law, national policy, DoD Directives, and Army Regulations. This requirement
exists regardless whether SOF missions are conducted during an international or non-international conflict,
or during peacetime.

Special Operations Forces

The Army's SOF currently consist of Special Forces, Ranger, Psychological Operations, Civil Affairs,
Special Operations Aviation units, and Special Mission units. These units are organized under a major
Army Command (MACOM), the US Army Special Operations Command, located at Fort Bragg, North
Carolina. They may be employed during peacetime as one element of a national response to a National
Command Authority (NCA) tasking or, during wartime, in strategic, operational, and tactical roles. Most
SOF are regionally oriented, capable of rapid deployment, and equipped for all-weather, all-terrain,
worldwide deployment.

PEACETIME SOF Missions Include:

(1) Assisting foreign governments or other elements of the US government.
(2) Training, advising, and supporting foreign military and paramilitary forces through security
assistance programs.
(3) Supporting foreign internal defense operations, anti-terrorism, and counter drug support.
(4) Conducting show-of-force operations.
(5) Conducting humanitarian assistance operations (HA).

The Wartime Missions of SOF Include:

(1) Foreign internal defense. (5) CA in support of general purpose forces.
(2) Unconventional warfare. (6) Civil Administration.
(3) Special and tactical reconnaissance. (7) Special light infantry.
(4) Strategic and tactical psychological operations. (8) Direct Action.

SOF Collateral Activities:

(1) Security Assistance (SA). (4) Counterdrug.
(2) Humanitarian Assistance (HA). (5) Search and Rescue (SAR).
(3) Anti-terrorism.

The Need for a Legal Advisor to Special Operations Forces.

Army SOF currently receive operational law support from the SJA, US Army Special Operations
Command (USASOC), US Army Special Forces Command (Airborne) [USASFC(A)], the US Army Civil

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Affairs and Psychological Operations Command (USACAPOC), and all Special Mission units. Additionally,
a JA is assigned to each Special Forces Group, the 4th Psychological Operations Group, the 75th Ranger
Regiment, and the 160th Special Operations Aviation Regiment. These attorneys are responsible for
providing the legal advice a SO unit commander requires to perform his assigned mission.

SOF missions are politically sensitive, particularly in a peacetime or low-intensity conflict environment,
and thus, the area of SO is fraught with potential legal pitfalls. The commander must consider not only the
effect of traditional law of war requirements on his operation, but also the requirements of US law, such as
security assistance and intelligence statutes, and international law in the form of mutual defense treaties
and host nation support agreements. Failure to be aware of and comply with these legal and policy
demands could result in embarrassment for the commander, a criminal investigation and prosecution, or an
international incident contrary to U.S. foreign policy goals and objectives.

A SOF commander should be provided legal advice by a JA who knows not only the applicable law,
but also the client's business. The JA must have a working knowledge of the force structure, missions,
doctrine, and tactics of the SOF unit he advises. This knowledge may come from prior service in SO units,
from SO training, (e.g. Special Forces or Ranger training), or from working closely with the commanders
and staff of the unit. Just as important, the SO legal advisor must have access to information in order to
effectively do his job. The JA must possess a Top Secret clearance, as a minimum, and should be eligible
for access to Sensitive Compartmented Information.

The Duties of the Special Operations Judge Advocate

Office Supervision. In many ways, a JA assigned to a SOF unit will face the same responsibilities as
those encountered by a JA in other units. The JA may need to provide legal support to the command in the
form of legal assistance, administration of military justice, and routine administrative law issues. The JA
will often deploy with the unit, and thus, must establish a system through which the rear detachment legal
actions of the command will be processed in a timely manner during the deployment. Usually a support
agreement will be concluded between the SOF unit and its host installation SJA's office. In addition, legal
augmentation is provided as needed through the SO chain of command. Normally, the JA will have a small
staff, consisting of one legal NCO and one or two legal specialists. The JA is responsible for the training
and professional development of these soldiers. They must receive sufficient training to successfully
complete all Army skill and MOS tests. This is of particular importance in a SO unit, because the legal
specialists and NCO may not experience the same quantity of standard legal actions that they would
encounter in a conventional legal office.

The JA must establish standard operating procedures (SOPs) for garrison, deployment, and the field.
The deployment and field SOPs should be designed to work for "no notice" deployments to overseas
locations in which the JA may have to function under austere conditions. Additionally, the SOPs must be
coordinated with other staff sections in order that all elements of the command understand the JA's duties
and responsibilities.

Advising the Commander and Staff

The principal function of any Command JA is to provide legal advice to the commander and his staff
on legal matters. Accordingly, commanders and staff officers are accustomed to receiving, and even
soliciting, advice from the JA on traditional legal matters, such as military justice and administrative law. In
our increasingly complicated world, commanders are incorporating Judge Advocate input into the decision
process. Experience has demonstrated that continual JA input from the concept phase, through mission
planning and execution, is most effective. Judge Advocates in SOF units have the unique opportunity to
demonstrate that they are "force multipliers" by guiding the commanders and staff throughout the planning
cycle. Any initial resistance to this substantial role is overcome by references to the JCS requirement for
JA review of all OPLANS and CONPLANs and the USASOC command policy (USASOC Reg. 10-1) which
requires JA review and participation in mission planning and execution. Judge Advocates individually
account for the most important aspect of this process by their involvement in day-to-day operations, field
exercises, and field training. The Judge Advocate's credibility is developed and sustained by this
interaction with the operations and intelligence sections.

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 UNIQUE SPECIAL OPERATIONS LEGAL ISSUES
Combined Exercises SOF spend significant time practicing their wartime missions through exercises with
host country armed forces overseas. These 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 JA must be
aware of the legal issues arising in the context of exercises, of which the principal issue is the jurisdictional
status of US forces while in the host country. A peacetime stationing agreement may exist between the
US and the host country which establishes this jurisdictional status. If there is not such agreement,
however, the JA must take steps to secure one. He must first determine who, within the appropriate
unified command, has been delegated that authority to negotiate international agreements. He must then
request, through command channels, that this negotiating authority conclude an agreement setting forth the
jurisdictional status of US forces with the host country. This agreement should also address a number of
other relevant issues, such as host nation support and customs requirements for the exercise force. (See
Chapter 3, this Handbook.)

The JA must also review all proposed training, construction, and humanitarian assistance and civic
action (HCA) activities that are to occur during the course of the exercise in order to ensure that these
activities comply with existing statutory and regulatory requirements. As has been noted, legislation exists
which provides DOD with greater flexibility in conducting such activities during combined exercises, but
particular care must be taken to carefully differentiate between legitimate exercise-related training and
training that is more properly conducted under security assistance programs. The most effective way of
ensuring that training activities remain within the scope of US law is for the JA to attend all exercise
planning sessions. (See Chapters 24 and 25, this Handbook.)

SOF units deploy in support of the warfighting CINCs across the full spectrum of Deployments for
Training (DFTs), Emergency Deployment Readiness Exercises (EDREs), Foreign Internal Defense (FID)
training, joint and combined exercises, and actual real world contingency missions. Under 10 USC 2011,
the "Special Forces Exception," the uniqueness of SOF is recognized to the extent that these forces are
authorized to essentially perform security assistance missions as part of their "trainer" missions. The
purpose of this legislation is to enhance the ability of CINC USSOCOM to "prepare special operations
forces to carry out assigned missions" by clarifying his authority to program and expend funds to train SOF
in both the US, 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 this knowledge and
understanding the ability to work with indigenous forces. 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.

Security Assistance Missions (See Chapter 25, this Handbook)

SOF, particularly the Special Forces, are often tasked to deploy Mobile Training Teams (MTTs)
overseas to conduct security assistance training. The JA 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 US embassy pursuant to the Vienna
Convention on Diplomatic Relations. Security assistance team members may also be considered part of
the US security assistance office (SAO) located in the host country. The JA should refer to the bilateral
agreement between the US and the host country in order to determine these privileges. If neither the LOA
nor the SAO addresses the jurisdictional status of US forces, the JA should contact the Security
Assistance Training Management Office, Fort Bragg, North Carolina (DSN: 239-9108/1599/5057/9008.)

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 Although the MTT is responsible to the US 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 JA 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 USC 2671c) which prohibits US 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.

Targeting
Direct action operations are among the wartime missions assigned SOF. As a result, these forces may
be required to attack tactical or strategic targets. These missions are normally developed through a
formal procedure by which a unified command provides a target folder to the SOF. The unit then analyzes
the target and prepares a plan of execution, returning the plan to the unified command or forwarding to a
higher command for approval. The SOF unit's targeting committee requires the assistance of a legal
advisor in developing the target folder in order to ensure that the plan complies with the law of war, US
law, national policy, DoD Directives, and Army Regulations. Given the nature of SO, it is possible that the
only legal review the plan will receive will be at the unit level. The JA must be an active member of the
unit's targeting committee or cell.

CIVIL AFFAIRS
General. Civil Affairs (CA) units support both conventional forces and SOF. CA doctrine is stated in FM
41-10, CIVIL AFFAIRS OPERATIONS (January 1993). CA assets provide the commander with advice and
assistance concerning civil-military operations. Joint CA doctrine is discussed in JOINT PUB 3-57: DOCTRINE
FOR JOINT CIVIL AFFAIRS (21 June 1995). CA are especially critical to those SOF that depend on the
support of the local populace for their success; i.e., SOF tasked with foreign internal defense and
unconventional warfare missions.

CA relates to those activities during peace and war that facilitate the relationship between the military
forces, civil authorities and population of a friendly country or area or occupied country or area in which the
military forces are operating. CA is concerned with the impact of civilians on military operations as well as
the economic, social, and political impact of military operations on civilians.

CA activities embrace this relationship and involves the application of civil affairs functional specialty
skills in areas normally the responsibility of a civilian government and enhance civil-military operations.
Civil-Military Operations (CMO) is a broader term used to denote the application of military capabilities to
enhance the civilian-military relationship to ensure accomplishment of the commander’s mission. JP 3-57,
at I-1

CMO engage the nonmilitary aspects and phases of operations to enhance military efforts and
promote legitimacy of military operations. The manner in which the military treats civilians in its operations
can tip the scale towards civilian cooperation or active or covert opposition. CA elements support both
general purpose and special operations forces in all environments, across the operational continuum from
peacetime competition, through conflict, to war.

CMO cover the full spectrum of civil-military relationships ranging from liaison and coordination with
civil authorities to civil administration in the occupied enemy territory. The nature of the CA operations in a
particular situation is affected by such variables as command mission, environment (e.g., economic,
political, and social development of the HN), status of hostilities, national policy, and the provisions of laws
and agreements applicable to the command. Although conditions may differ, the basic mission of securing
local acceptance and support for US Forces, of minimizing and eliminating the frictions and
misunderstandings that can detract from US relations, remains the same.

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 Mission
CA supports strategic, operational, and tactical missions. Regardless of the mission, CA must comply
with international law as well as US national law and, where applicable, national law when dealing with the
inhabitants and institutions of host, liberated, or occupied territories; CA missions include civil-military
operations and civil administration. Civil-military operations (CMO) include foreign nation support,
humanitarian assistance, populace and resources control (PRC), disaster relief, and military civic action
(MCA). With respect to HA, PRC and MCA, these operations were designed for low intensity conflict
(foreign internal defense and unconventional warfare). However, the operations may be applied across the
operational continuum as appropriate. Clearly, civil-military operations are an integral part of contemporary
land warfare and must be fully integrated into all combat operations.

Regarding foreign nation support, this action involves the identification, negotiation, and procurement
of civil resources from within a foreign nation in support of a US military mission during peace, preparation
for war, and wartime. Foreign nation support (FNS) includes both HN support and third country support.
By receiving this support, the US Army reduces the need for US personnel, material, and services within
the area of operations.

The G5/CMO is responsible for identifying and acquiring FNS required by the force. CA elements
assist the G5/CMO by identifying available resources, facilities, services, and support, within the supported
command's area of operations. Additionally, CA elements coordinate US requirements for, and assist in
the acquisition of local resources, facilities, services, and support. For example, in the procurement
process, CA personnel make recommendations concerning the availability of local resources, identify the
source, and serve as the initial intermediary for the US military and the local source.

The nerve center for CMO is the Civil-Military Operations Center (CMOC). This facility 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 agencies, the Country Team, and
if applicable, UN agencies. The CMOC may also be the primary coordinating agency for all international
organizations, non-governmental organizations (NGOs) and private voluntary organizations (PVOs). There
is no precise formula or method used in determining the size and the structure of the CMOC. The
commander tailors the CMOC according to specific mission requirements. The mission will dictate the
geographical and operational distance of the CMOC from the Commander’s Operations Center.

CA operations in FNS were clearly demonstrated during Operations DESERT SHIELD/STORM. In

particular, CA elements met with Saudi officials in order to work out arrangements for the use of various
facilities such as laundry, shower, mail, warehouse, and maintenance space. Also, CA elements arranged
for the procurement of food, water, medicine, and other supplies to support both dislocated and enemy
prisoner of war operations.

See Chapter 24, this handbook, for information on Humanitarian Assistance. See also Chapter 12
(Fiscal Law).

Populace and Resources Control (PRC) operations are measures to deny support and assistance to
the insurgent by controlling the movement of people, information, and goods. PRC was designed for low
intensity conflict scenarios, but may be used in other environments. Examples of PRC would include such
measures as registration, identification, movement control, curfews, rationing, price-controls, censorship,
licensing and checkpoint operations. CA elements support PRC operations by providing advice and
assistance in planning and conducting PRC. PRC measures are normally within the exclusive province of
the HN. Because PRC measures are politically sensitive, US forces should only conduct PRC operations
when the situation is clearly beyond the capabilities of the nation’s security, only on the request of the host
government, and only after approval by appropriate authorities, to include the US Ambassador.

With respect to dislocated civilian operations, CA elements minimize local population interference with
US military operations and protect civilians from the collateral effects of combat. Uncontrolled

15-5
masses of people seriously impair the movement of military units and supplies in support of the CDR's
operations. CA elements advise the CDR on the anticipated reaction of the populace to military
operations. Also, CA elements plan, supervise and coordinate the movement and control of dislocated
civilians within and through the area. Additionally, CA elements provide humanitarian and civic assistance
to dislocated civilians outside the combat zone.

For example, subsequent to Operation DESERT STORM, CA elements were involved in operation
Provide Comfort in Northern Iraq. The major CA effort involved establishing and operating camps for the
displaced Kurdish civilians. Towards that end, CA units interfaced with over 60 private and voluntary
organizations, the USAF, the USMC and the armies of over eight allied countries and the UN in providing
assistance to the Kurds. CA personnel 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.

Disaster relief operations provide emergency assistance to victims of natural or manmade disasters
abroad. These operations are responses for immediate help 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 units are well qualified to plan,
coordinate, and implement disaster relief operations. The functional structure of CA units and the
experience, training, and orientation of CA personnel provides a ready reservoir of soldiers possessing the
skills necessary for administration of relief, institution of programs for rehabilitation, and provision of control
measures appropriate to the situation.

CA elements support HA operations in a number of ways. CA elements can be employed to help

control refugees/migrants and establish and operate refugee/migrant camps. While planning and
coordinating these activities, CA elements can also assist in consolidating and organizing
refugees/migrants. CA elements worked extensively in Cuban and Haitian migrant relief operations in
1994. For information on "Civilian Protection Law," see Chapter 13, this Handbook.

In the civil assistance area, CA elements have the technical experience to provide advisory assistance
to the host government in a variety of areas such as public safety, transportation, communications, and
public education. For example, CA elements rendered assistance to the government of Haiti in revitalizing
its infrastructure. CA elements performed damage assessments of critical facilities within the country and
recommended and coordinated short-term remedial action to restore, as quickly as possible, the functions
and services of the Haitian government. Also, CA elements can performed long term planning and
reconstruction efforts. For example, in support to the Kuwait government, CA personnel defined contract
requirements, reviewed contract proposals, and advised government officials on the merits of proposed
contract arrangements. As a result of CA efforts, more than 558 million dollars in contracts were awarded
by the Kuwait government to restore country operations. Similar activities were conducted by CA elements
(and Reserve Component JAs) in Haiti, where government, police, and judicial functions were restored with
coordination with DoS, DoJ, and the UN.

Military Civic Action (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 elements may
plan, coordinate, advise, and direct MCA operations for the host government. As an example, CA
elements may assist indigenous forces by providing skills in the technical areas of light-construction
engineering and medical support. Successful operations eliminate or reduce military, political, economic
and sociological problems.

FM 41-10 identifies civil defense as a CMO. However, since publication of FM 41-10, civil defense
missions have been doctrinally absorbed by Domestic Support Operations. See generally, JP 3-57, at II-
9. For further information on Domestic Support Operations, see Chapter 21, this Handbook.

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 CA provides the commander with information on protected cultural assets such as arts, religious
edifices, monuments, and archives. CA elements provide safeguards and any other required protection
over collections of artifacts and objects of historical or cultural importance, including appropriate records
thereof. Additionally, the CA elements make appropriate recommendations on plans to use or target
buildings or locations of cultural value, such as temples, universities, and shrines.

Civil Administration is direct involvement of the military in executive, legislative, or judicial areas of
civilian government. CA efforts include: (1) assisting a host/allied government in meeting its people's 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. US commanders will only undertake this unique action when directed or approved by
the NCA.

In addition to the above, CA elements advise and assist the tactical commander in fulfilling his legal
and moral obligations in accordance with international laws and the law of war, US 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 personnel 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 personnel 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 Assistant Chief of Staff (ACofS), G5, Civil-
Military Operations. The G5 is the principal staff assistant to the commander in all matters concerning
political, economic, and social aspects of military operations. He acts as a liaison between the military
forces, civil authorities, and people in the area of operations. The G5 supervises CA functions of the
command 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.

Upon mobilization, the CA Command (or senior CA element 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 elements may be GS, DS, or 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 conflict, CA operations must be thoroughly coordinated and synchronized
with the country team to insure unity of effort and synergism of effort.

Legal Personnel in Support of Civil Affairs

The SJA is the commander's primary legal advisor and supervises all legal operations within the
command, including those in support of CA. Within the staff, the ACofS, G5 normally has staff
responsibility for CA. The G5 coordinates with the SJA on matters of US, local, and international law, and
on CA "legal activities." CA legal activities include such matters as civil administration and the
establishment and operation of CA tribunals and other judicial and administrative agencies.

JAs assigned to CA units are the primary legal advisors to their respective units. The senior JA of the
unit is designated the Command Judge Advocate (CJA) and, therefore, is a member of the CA
commander's personal and special staff. CA JAs provide mission-essential legal services to the unit,
including operational law legal service. The CJA of the CA unit is subordinate to the SJA of the command
to which the civil affairs organization is assigned or attached for technical guidance and supervision.

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, JAs provide advice and assistance in the preparation and review of CA plans for

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consistency with US 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
US Armed Forces will conduct operations.

JAs prepare the legal section of the CA area study and assessment, and of the Civil-Military
Campaign Plan. The area study and assessment is a planning document containing information on the
designated area of operations compiled before deployment or hostilities. For a detailed review of the area
study and assessment, see FM 41-10, CIVIL AFFAIRS OPERATIONS, Appendix B.

JAs also provide predeployment training to CA personnel. This training should include: (1) law of war,
(2) human rights violations and reporting requirements, (3) ROE, (4) military justice, and (5) miscellaneous
information concerning SOFAs with the HN, if any.

During the combat operational phase, JAs 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 as necessary.

During the stability and consolidation phase, JAs may provide legal services concerning such matters
as claims submitted by local civilians, disaster relief, and humanitarian and civic assistance issues.
Additionally, JAs may be called upon to give advice and assistance on matters relating to civil
administration within a friendly or enemy country. JAs 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 court's jurisdiction over US
military personnel and activities.

REFERENCES:
DEP’T OF DEF., DIRECTIVE 2000.13, CIVIL AFFAIRS (27 June 1994)
DEP’T OF DEF, JOINT PUB 3-57, DOCTRINE FOR JOINT CIVIL AFFAIRS (21 June 1995)
DEP’T OF ARMY, FIELD MANUAL 41-10, CIVIL AFFAIRS OPERATIONS (11 Jan. 93)
JOINT WARFIGHTING CENTER, JTF COMMANDER’S HANDBOOK FOR PEACE OPERATIONS (28 Feb. 95)

PSYCHOLOGICAL OPERATIONS
PSYOP are defined in FM 33-1 as "products and actions designed to channel behavior in support of
the commander's intent at the tactical, operational, and strategic levels." Their purpose is "to induce or
reinforce attitudes and behavior favorable to US national goals in selected foreign target audiences."
PSYOP units offer a variety of capabilities that assist the commander across the operational continuum.
These include intelligence, language, and cultural expertise; printing/publishing capability (leaflets, posters,
and handbills); video/broadcast capability (radio and television); and loudspeaker messaging (foot, vehicle,
and aircraft mounted).

JOINT PUB 3-53, JOINT PSYCHOLOGICAL OPERATIONS DOCTRINE, states that "PSYOP are an integral part
of military operations and, as such, are an inherent responsibility of all military commanders." The overall
approval for PSYOP in peacetime or wartime reposits at the NCA level. The NCA has delegated PSYOP
approval authority to ASD/SOLIC. Additionally, US policy requires review of PSYOP by the DoD General
Counsel prior to approval (see Chapter II, JCS Pub 3-53). Consequently, an overall PSYOP campaign will
have ordinarily been reviewed and approved at echelons above the level of a unit or JTF JA. The role of
the JA, then, is to provide advice on the implementation of the PSYOP campaign.

While PSYOP elements work closely with CA elements, the G-3 coordinates their activities, not the
G-5. Still, CA, PSYOP, and public affairs actions can dramatically affect the perceived legitimacy of a
given operation. When properly utilized, PSYOP 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 CMO; (2) the nature and extend of the mission;
and, (3) instructions to avoid interfering with ongoing military operations. PSYOP is often the only means

15-8
 CHAPTER 16
ADMINISTRATIVE LAW

I. Conscientious Objectors III. Reports of Survey

II. Gifts IV. 15-6 Investigations

I. CONSCIENTIOUS OBJECTORS
References.
- 50 USC App. § 456(j) (West 1990) (the military Selective Service Act: Deferments and Exemptions
from Training and Service).
- DoD Directive 1300.6, Conscientious Objection (20 Aug 1971, w/IO4, 11 Sep 75; pending revision in
1996); 32 CFR Part 75.
- AR 600-43, Conscientious Objection (1 Aug 83, w/I01, 30 Jun 93).
- AR 614-30, Assignments, Details and Transfers: Overseas Service (1 Apr 88).
- Marine Corps Order 1306.16; Navy MILPERSMAN 1860120 & 3620200; Air Force Inst 36-3204

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, which 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.

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 commander’s recommendations and the chaplain’s and
psychiatrist’s 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.

16-1
 CHAPTER 17
CRIMINAL LAW

Military Justice supervisors and TCs 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, JAs must maintain the same
level of efficiency in rear detachment military justice actions.

PREDEPLOYMENT CONSIDERATIONS
Personnel and Training. 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 JAs
know how to process military justice actions on their own, before deployment. Deployed settings present
difficult supervisory challenges, primarily caused by increased distances between JAs, communication and
transportation limitations, and “imported” counsel’s (JAs from legal assistance, administrative law or
claims) inexperience with military justice actions. Supervisors must, therefore, attempt to train potentially
deployable JAs before deployment in the following areas: AR 15-6 investigations, NJP procedures, court-
martial procedures and administrative separations.

Legal Resources. Resources, to include electricity, phone lines and fax capability are ordinarily limited in
deployed settings. JAs must ensure possession of the required regulations and legal forms in electronic
format (CD ROM) and hard copy. Computers may help to eliminate the need for some hardcopy
resources. However, given their potential unreliability in the harsh environment of a deployment, JAs must
plan for the worst. JAs must also consider inclusion of the hardbound military justice reporters. CD ROM
research is subject to the computer’s 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, a Military Rules of Evidence hornbook, 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.

Case Disposition. JAs 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 remain in
garrison pending separation. NJP actions normally go forward with the deploying force.

Court-Martial File Management. Supervisory JAs must ensure court-martial files are organized in such a
way that TCs remaining in garrison can properly assume the case and try it after the original TC has
deployed. The predeployment phase is not the time to organize court-martial files. It must be office policy
and a routine, ongoing office requirement.

Court-Martial Panels. Supervisory JAs must plan for new panel selection for both the rear garrison and the
deployed setting. Brigade JAs 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. JAs
should also familiarize themselves with a legally sound selection process and deploy with prepared panel
selection advice.

Illegal Drugs. JAs 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.

17-1
Dogs. JAs 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 U.N. 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).

Predeployment Briefings. JAs must be thoroughly familiar with the General Order for the operation and
pay particular attention to exhaustive briefings prior to deployment. As with ROE training, supervisory JAs
must ensure refresher training on the GO upon arrival in theater, at regular intervals throughout the
deployment and during the redeployment phase.

DEPLOYMENT CONSIDERATIONS

UCMJ JURISDICTION

General. Upon notification for deployment, JAs are critical to establishing clean and efficient military justice
lines of authority. This is essential to ensure proper and efficient processing of court-martial, NJP, and
administrative separations both in the deployed setting and the rear detachment.

Unit Jurisdiction. Initially, unit commander’s 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 units during the period of
deployment. JAs should pay particular attention to "joint justice" issues in JTF deployments. Consider the
provisions of RCM 201(e) when deployed in a joint headquarters. This provision applies specifically to
unified and specified commands. JTF commands are not contemplated in this provision. Thus, reciprocal
jurisdiction is not typically available to JTF commanders.

Individual Jurisdiction. 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 nondeployable soldiers within the unit. TCs should monitor
the status of those soldiers within their jurisdiction who may be nondeployable for legal reasons. Judicial
action by military or civil authorities, while generally making a soldier nondeployable 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 commander's, usually made after coordination with
the TC.

Provisional Units. 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 JA. 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 commander’ s
discretion. Provisional units can be created at any level, to include company, battalion, and brigade.

17-2
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 commander’s 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 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.
JAs 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.”

Creating a General Court-Martial Convening Authority. There are times when the GCMCA deploys and
takes his GCM authority (his command flag) to the deployed setting. As a result, the rear detachment
sometimes has no residual GCMCA authority to handle military justice actions in the rear. Although most
CONUS installations have a residual GCM authority already designated in the Installation Commander
pursuant to Department of the Army General Order (see appendix for comprehensive list), when this
authority is not present, JAs should coordinate with The Office of The Judge Advocate General, Criminal
Law for Secretarial designation of a new GCMCA. In the absence of such designation, military justice
actions can either be forwarded to the deployed commander for disposition or a nearby CONUS GCMCA
after prior coordination.

Deployment Location (See Ch. 3). The location of the overseas exercise is crucial. Refer to the unified
command and Treaties in Force in order to determine if a stationing arrangement or some other form of
agreement is in effect between the US and the HN. If no such agreement exists, the HN may attempt to
exercise exclusive criminal jurisdiction over US soldiers who violate HN laws (see ch. 3 discussion on Law
of the Flag). If a SOFA is in effect, the TC must know and follow the foreign criminal jurisdiction
arrangement. TCs should determine whether the HN will allow commanders to exercise UCMJ jurisdiction,
either by nonjudicial punishment or court-martial, within its territory. This issue must be addressed prior to
deployment and arrangements made for resolving cases elsewhere if the HN objects to this exercise of US
sovereignty. In any case, obtain a Country Law Study of the HN. The deploying soldiers must then be
briefed concerning the HN criminal legal system and the foreign criminal jurisdiction arrangement, if one
exists. The briefing will not only inform the soldier of the law, but may also act as a significant deterrent to
any criminal misconduct while deployed.

Deployment Duration. The anticipated duration of deployment is critical when deciding where military
justice actions will be handled. Cases can be tried at the deployment location or returned to the installation
of origin; each option raises its own difficulties.

(a) Trial in the Host Nation. Army policy stresses that military justice actions should be resolved
in theater, as far forward as possible. FM 27-100. If cases are to be tried in the HN, court
personnel, such as the military judge, court reporter, and, possibly, even the defense counsel,
must be detailed and brought to the area. Will the court members be selected from those
officers (and possibly enlisted personnel) already deployed as part of the exercise? Where will
the actual trial take place--in a tent? How will all of the pretrial procedural requirements be
accomplished?

(b) Trial at Home Station. If an individual accused is returned for trial before the entire unit
redeploys, will any military witnesses, perhaps essential personnel, also be returned in order to
testify at the trial? If there are local national civilian witnesses, how will their testimony be

17-3
 obtained? Will the presence of these individuals be required by the military judge? Is the SJA
element prepared to take their depositions?

RELATED MILITARY JUSTICE ISSUES

Nonjudicial Punishment. NJP procedures remain largely unchanged in the deployed theater. Practical
issues face JAs 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, JAs should coordinate with their supervisory
JA. The regulation is silent as to the lawfulness or propriety or such a course of action. In any event, JAs
must ensure the soldier is notified of the commander’s 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. However, the commander must do so IAW the individual’s 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 servicemember’s parent service. Coordination, therefore, must be made with
the servicing JA. 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.

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, and time of war
is an aggravating factor in still other offenses. 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).

Time of War and the Punitive Articles.

Offenses that can only occur during time of war:

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 one's position as a prisoner (a)
1
to the detriment of other prisoners 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
2
pretenses to collect, or attempt to collect information for conveyance to the enemy.

1
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.

17-4
 Offenses that can be punished by the death penalty only in time of war:
3
1. Desertion (UCMJ art. 85) 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 US or an ally was then an occupying
power or in which US forces were then engaged in active hostilities.
2. The maximum penalty which 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 commander's
reduction authority. See MCM, pt. V, para. 5b(2)(B)(iv).

Time of War, Jurisdiction, and Statutes of Limitation. Jurisdictional rules and statutes of limitation may
both be affected by a determination that a time of war exists.

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.

2. Statutes of Limitation. UCMJ art. 43 extends the statute of limitations for certain offenses
4
committed in time of war.
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
5
offenses involving fraud, real property, and contracts with the United States.

The term "time of war" is defined differently for the purposes of jurisdiction and statutes of limitation than
for the punitive articles and nonjudicial punishment. CMA has established a factual test to determine
whether a time of war exists and has articulated several factors it will look to in making such an analysis.
6
1. Armed hostilities against an organized enemy.
2
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).

3
The last execution for desertion occurred during World War II. See Slovik, E. Theater of Operations CMCO No. 5555.

4
CMA held that Vietnam was a time of war for statute of limitations purposes. US v. Anderson, 38 C.M.R. 386 (1968).

5
UCMJ art. 43(f). The date hostilities end is proclaimed by the President or established by a joint resolution in Congress.

6
See US v. Shell, 23 C.M.R. 110 (1957).

17-5
 7
2. Significant movement to and numbers of US forces in the combat area.
8
3. Large number of casualties inflicted by either party to the conflict
4. Legislation, executive orders, or proclamations concerning the hostilities, indicative of a time of
9
war.
10
5. Ferocity of combat.
11
6. Substantial suffering by the parties to the conflict.
12
7. Major impact on the nation caused by the conflict in question.

Application of these criteria has been somewhat inconsistent. CMA has held that, in order for the military
courts to have jurisdiction over civilians, Congress has to formally declare war, has also rejected the notion
that there is a geographical component to the "time of war" in the sense that absence from the combat
13
zone at the time of an offense does not prevent the offense from occurring in "time of war." 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 accused's geographical location at the time of the offense was irrelevant. "In either instance, the
14
Armed Forces are deprived of a necessary--perhaps vitally necessary--combat replacement."

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
15
members of military organizations.
"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:

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

7
See US v. Averette, 41 C.M.R. 363 (1970).

8
Id.

9
See Bancroft, 11 C.M.R. 5 (1963).

10
Averette, at 365.

11
Id.

12
Id.

13
19 U.S.C.M.A. 363, 41 C.M.R. 363 (1970).

14
See Ayers, 15 C.M.R. at 227 (1954).

15
US v. Monday, 36 C.M.R. 711 (A.B.R. 1966), pet. denied, 37 C.M.R. 471 (C.M.A. 1969)

17-6
 battle, and its weapons are capable of delivering fire on the enemy within effective
16
range of the enemy weapons, then that unit is before the enemy.

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
17
the trier of fact.

"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. Such acts can be
justified only by the utmost necessity or extremity.
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 accused's refusal to
18
perform his duties or abandonment of duties because of fear.
f. Quitting one's 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 accused's
own specific tasks and mission limit the practicable relief and assistance he can give in a
particular battle situation.

War Trophies. (See Chapter 18, this Handbook.) 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.
19
1. Failing to give notice or turn over property.
16
US v. Sperland, 5 C.M.R. 89, 91 (1952).

17
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.

18
See Smith, 7 C.M.R. 73 (A.B.R. 1953), and Barnett, 3 C.M.R. 248 (A.B.R. 1951).

19
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.

17-7
 2. Buying, selling, trading, or in any way disposing of, captured or abandoned property.
3. Engaging in looting or pillaging. Violation of 26 USC 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 or 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 accused's
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.

17-8
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 one's 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 US
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 accused's
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
enemy's use of the information or a return communication from the enemy to the accused; the offense
is complete once the correspondence issues--either directly or indirectly-- from 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 US 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

17-9
 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
sentinel's mental and physical condition, sufficient enough that, although not completely comatose, he
is unable to fully exercise his faculties. The sentinel's 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 ceremony is needed; it is enough that routine or
standard operating procedure require 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
20
maneuver.

SAMPLE TRANSFER OF JURISDICTION

(APPX Entry & Letter)

APPX 7 (LEGAL AFFAIRS) TO ANNEX E (PERSONNEL AND ADMIN) TO 1ST 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 1st ID(Mech) Rear (Prov) and FT Riley during
REFORGER 86.
3. EXECUTION.
a. General. Basic Planning Directive.
b. Military Justice.
(1) commander, 1st ID (Mech), upon departure from FT Riley will:
(a) Transfer General Court Martial Convening Authority (GCMCA) for 1st 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.

20
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)).

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 (2) Deputy Post commander, FT Riley, will:
(a) Assume command of FT Riley during the absence of the commander, 1st ID (Mech) and FT
Riley, for REFORGER 86.
(b) Exercise GCMCA over all service members and units assigned or attached to the 1st ID
(Mech) Rear (Prov), FT Riley, and the US Army Correctional Activity.
(3) Commanders of all deploying Major Subordinate Commands (MSC), 1st 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, 937th 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 1st ID (Mech) Rear
(Prov), and FT Riley.
(b) Issue appropriate orders attaching all provisional MSCs and rear detachment personnel to the
937th Engineer Group for special court-martial jurisdiction.
(6) SJA, 1st ID (Mech) and FT Riley, will:
(a) Prepare letter transferring GCMCA to the Deputy post commander for the signature of the
commander, 1st 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.

Sample Letter Transferring Court-Martial Convening Authority.

SUBJECT: Order Transferring Special Court-Martial Jurisdiction.

1. Effective 0001 hours, ______ Jan 1986, I hereby order the transfer, to the commander 937th Engineer
Group, 1st 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.

DESERT SHIELD
GENERAL ORDER NO. 1

OPER/DESERT SHIELD/MSGID/ORDER/USCINCCENT
SUBJECT: DESERT SHIELD GENERAL ORDER
ACTIVITIES FOR US PERSONNEL SERVING IN CENTRAL COMMAND

17-11
1. This message transmits USCINCENT Desert Shield General Order No. 1. It is applicable to all US
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 US Armed Forces into
USCENTCOM AOR countries where Islamic Law and Arabic customs prohibit or restrict certain
activities which are generally permissible in Western societies. Restrictions upon these activities are
essential to preserving US - host nation relations and the combined operations of US 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 which displays human genitalia, uncovered women's
breasts, or any human sexual act. It is intended to include not only "obscene items", but items of
"art" which display human genitalia, uncovered women's 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,
women's 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.

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 US
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 which 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.

17-12
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.

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 US and host nation relations.
3. APPLICABILITY: This general order is applicable to all US military personnel assigned or attached to
JTF 190, and all US 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 US personnel is the property of the US. 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.
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

17-13
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 individual's 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 US 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.

17-14
 CHAPTER 18
THE LAW OF WAR (LOW)

LAW OF WAR REFERENCE CITES

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, T.I.A.S. 3362 [hereinafter GWS].
4. Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and
Shipwrecked Members, August 12, 1949, T.I.A.S. 3363 [hereinafter GWS-SEA].
5. Geneva Convention, Relative to the Treatment of Prisoners of War, August 12, 1949,
T.I.A.S. 3364 [hereinafter GPW].
6. IV Geneva Convention, Relative to the Treatment of Civilian Persons in Time of War,
August 12, 1949, T.I.A.S. 3365 [hereinafter GCC].
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 U.N.T.S. 65
[hereinafter 1925 Geneva Gas 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. Dep't of the Army, Field Manual 27-10, The Law of Land Warfare (July 1956) [hereinafter
FM 27-10].
14. Dep't of the Navy, Naval Warfare Publication 1-14M/U.S. Marine Corps MCPW 5-2.1, The
Commander's Handbook on the Law of Naval Operations (October 1995) [hereinafter
NWP 1-14M].
15. Dep't of the Air Force, Air Force Publication 110-31, International Law--The Conduct of
Armed Conflict and Air Operations (19 November 1976) [hereinafter AFP 110-31].
16. Dep't of Defense Instruction 5000.2, Defense Acquisition Management Policies and
Procedures (26 February 1993) [hereinafter DOD Instr. 5000.2].
17. Dep’t of Defense Instruction 5500.15, Review of Legality of Weapons Under
International Law (27 December 1972) [hereinafter DOD Instr. 5500.15]

INTRODUCTION
JAs advise commanders at all levels concerning LOW issues and provide instruction and training to
members of the command regarding customary international law and the essential provisions of the Hague
1
Regulations, the Geneva Conventions, and other treaties. Other LOW treaties of interest to JAs

1
Navy and Marine Corps see: SECNAVINST 3300.1A, Law of Armed Conflict (Law of War) Program to insure Compliance by the Naval
Establishment, 2 May 80; JAGINST 3300.2A, Law of Armed Conflict Resource Materials, 27 Oct 83; MCO 3300.3, Marine Corps Law of
War Program, 2 Aug 84.

18-1
include Protocols I and II to the Geneva Conventions, the Conventional Weapons Convention, the 1925
Geneva Gas Protocol, the Chemical Weapons Convention, and the Hague Cultural Property Convention.
Increasingly, JAs advise commanders on application of the LOW to operations other than war (OOTW)
where traditional notions of LOW are applied by policy or by analogy (see also chapter 13). The following
discussion highlights those areas of the LOW most critical to JAs.

APPLICABILITY OF THE LOW

The customary LOW applies to all cases of declared war or any other armed conflict which may arise
between the US 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 the Falklands War, the Iran-Iraq War, and Desert
Storm were clearly international armed conflicts to which the LOW 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 US is not a Party to the Protocol and does not recognize this extension of the LOW.

Although the US has not ratified the GP I and II, JAs must be aware that nearly 150 nations have
ratified the Protocols. Thus, the Protocols will come into play in most international operations. As
members of multinational forces, US CDRS must be aware that many allied forces are under a legal
obligation to comply with the Protocols. Furthermore, the US considers many of the provisions of the
Protocols to be applicable as customary international law.

US views these GP I articles as customary international law: 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); 44
(combatants and prisoners of war (portions)); 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, nondefended 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 US specifically objects to articles 1(4)(GPI 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) (use of enemy flags and insignia while engaging in
attacks); 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. Int'l & Pol'y 419, 420 (1987)

In peace operations, such as those in Somalia, Haiti, and Bosnia, the question frequently arises
whether the LOW legally applies to those operations. The issue hinges on whether the peace operations
forces undertake a combatant role. It has thus far been the US, 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 LOW to these operations, it is, nonetheless, the position of the US, UN, and NATO
that their forces will apply the “principles and spirit” of the LOW to these operations. As an example,
that is the position of NATO regarding the Implementation Force (IFOR) deployment. This approach is
consistent with DOD policy to comply with the LOW in all military operations. DOD Directive 5100.77. In
applying the DOD policy, however, allowance must be made for the fact that during these operations US
Forces often do not have the resources to comply with the LOW to the letter. Consequently, it has been
US practice to comply with the LOW to the extent “practicable and feasible.” Memorandum of W. Hays
Parks to the Judge Advocate General of the Army, 1 October 1990.

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 GENERAL PRINCIPLES OF THE LOW
Discrimination: The necessity for distinguishing between combatants, who may be attacked, and
noncombatants, e.g. civilians, who may not be attacked. A customary international law principle prohibiting
the intentional attack of civilians. FM 27-10, para. 40.

Military necessity: This principle justifies those measures not forbidden by international law which are
indispensable for securing the complete submission of the enemy as soon as possible. Military necessity
is not an excuse for committing acts prohibited by the LOW, because military necessity was
considered in the development of those prohibitions. In short, military necessity is no defense to
the commission of war crimes! FM 27-10, para. 3.

Unnecessary suffering: The LOW prohibits the use of weapons, projectiles, or other materials calculated
to cause unnecessary suffering. FM 27-10, para. 34. Also prohibited is the use of lawful weapons in a
manner calculated to cause unnecessary suffering.

Proportionality: The loss of life and damage to property incidental to military action must not be excessive
in relation to the concrete and direct military advantage expected to be gained. FM 27-10, para. 41.

TARGETING CONSIDERATIONS
JAs have become key players in targeting planning cells. The principles of discrimination, military
necessity, unnecessary suffering, and proportionality form the basis for all targeting considerations
undertaken in the absence of specific guidelines set forth under international and domestic law.

Determining Proper Targets. Targeting involves the careful application of the principles discussed in the
preceding paragraph plus an appreciation of what constitutes a valid military objective. Specifically, is the
potential target a combatant, a defended place, or an object that makes an effective contribution to the
enemy's military effort, and does its destruction, capture, or neutralization offers a definite military
advantage? Once the target is confirmed as a military objective, targeting personnel must ask whether
the destruction of the objective results in l incidental injury to noncombatants or collateral damage to
protected property that is excessive to the direct and concrete military advantage to be gained? There are
few absolutes in targeting. The JA must provide legal advice in this area only after a thorough review of
the facts and a complete examination of all of the surrounding circumstances. The standard by which US
commanders must make these targeting decisions is “based on their assessment of the information
reasonably available to them at the time, rather than what is determined in hindsight. DOD Final Report to
Congress on the Conduct of the Persian Gulf War , O-15 (1992). This was the standard applied to the
Coalition attack on the Al Firdus bunker on 13 February 1991. US intelligence indicated that what had
been an air raid shelter had been converted to a command and control bunker, as it was camouflaged,
encircled by barbed wire, and patrolled by armed guards. After the attack, US planners learned that
civilians had been using the bunker as an air raid shelter. Although tragic, the US did not violate the LOW.
In fact, it was Iraq who violated the customary LOW obligation to not commingle military objectives with
the civilian population, and therefor bears responsibility for the loss of civilian life.

The determination of proper targets is also critical in peace operations. While such operations do not
normally entail offensive-type actions, previously mentioned examples in Somalia and Bosnia illustrate that
these operations may also involve targeting issues. These principles apply with equal, if not greater, force
in peace operations; "Restraint" is a principle of OOTW. Recent experiences in Somalia suggest that US
Forces may face "civilians" as unlawful combatants or used to mask attacks. During Operation Deliberate
Force in August of 1995, NATO planners were sensitive to the issue of collateral damage to civilians and
their property.

Procedures Required When Practicable

The following procedures are required unless military necessity dictates otherwise or the CDR lacks the
means for effective compliance.

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 a. Warn the civilian populace prior to bombardments or attacks which will subject them to danger. This
requirement does not apply to assaults (where surprise is critical) or bombardment of purely military
targets.
b. Spare buildings dedicated to religion, art, science, or charity, historical monuments, hospitals, and
other places where the wounded and sick are collected. However, if these buildings become military
objectives, they, of course, may be attacked. Note the special rules for hospitals: if “acts harmful to
the enemy” are being committed within the hospital, they may only be attacked after a warning and a
reasonable period to comply have been given, except in the case where hostile fire is originating in
the hospital.

Precautions in Attack
The following precautions are mandatory and apply to all applications of combat power against hostile
targets or forces:
a. Verify the military nature of the target or objective.
b. Use weapons or means which minimize incidental injury to noncombatants and collateral damage to
protected property.
c. Do not attack if the loss of life and destruction of property will be excessive in relation to the direct
and concrete military advantage to be gained.
d. Warn noncombatants in accordance with the procedures noted above.

WEAPONS
All weapons procured by US Forces must undergo a legal review for compliance with the LOW. This
review is normally performed at the service component judge advocate general level. DOD Instr. 5000.2
and DOD Instr. 5500.15.

Chemical Weapons
General. International and domestic law place severe limitations on the use of chemical and bacteriological
weapons in armed conflict. The US condemns the use of all biological and bacterial agents under any
circumstances.

Limitations. The Geneva Protocol of 1925, to which the US had been a party since 1975, prohibits the use
of "asphyxiating, poisonous or other gases" in international armed conflicts. The US, like many other
parties to the treaty, reserved the right to use chemical weapons in response to a chemical attack. Only
the President (or his delegate) could order such a response. In 1993, however, the US signed the
Chemical Weapons Convention (CWC) and in April 1997, the President ratified it. Under the terms of the
CWC, the development, production, stockpiling, and use of chemical weapons is prohibited -- even if in
response to a prior unlawful use of chemical weapons by the enemy.

Prior to the ratification of the CWC, the US position has been that chemical herbicides and RCA fell outside
the ambit of the Geneva Protocol of 1925. The US took the position that while the treaty prohibits use of
both lethal and incapacitating agents, the use of chemical herbicides and RCA is permissible "because they
produce, in all but the most unusual circumstances, merely transient effects that disappear within minutes
after exposure to the agent has terminated." The RCA most likely to be used by the US is CS gas or “tear
gas.” Nevertheless, US policy (Executive Order 11850) unilaterally renounced the "first use of herbicides in
war, except, under regulations applicable to their domestic use, for control of vegetation within US bases
and installations or around their immediate defensive perimeters [and] first use of riot control agents,
2
except in defensive military modes to save lives."

An expanded list of first uses appears in annex F to the Joint Strategic Capabilities Plan (JSCP). Neither
the list in Executive Order 11850, nor that in the JSCP, is all-inclusive. Note, however, that even in a listed
case of first use, prior Presidential approval is required. This approval can be -- and often is --
predelegated.

2
The exceptions are use of riot control agents 1) in areas under direct and distinct US military control (e.g., to control rioting POWs); 2)
when civilians are used to mask attacks; 3) in rescue missions; and 4) to control civil disturbances in rear areas.

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The US took (again, prior to ratification) a similar position on the effect of the CWC on RCA. While the
CWC clearly bans RCA as a "method of warfare," the US position is that two of the listed uses in Executive
Order 11850 (control of PWs and control of civil disturbances) are not methods of warfare and thus not
covered by the CWC. Upon ratification of the CWC, many expected the issuance of a new executive order
to replace 11850. As part of the compromise in the Senate (during the advice and consent phase),
however, no new executive order will be issued. This means that EO 11850 will continue to control the use
of RCA and herbicides for the foreseeable future. This is consistent with current DoD Policy. CJCSI
3110.07, 3 July 1995 (SECRET). In any event, the CWC applies only to "international armed conflicts."
Accordingly, it would not apply to peacetime operations or in Operations Other Than War, e.g., it would
not have affected US operations in Somalia and Haiti, where RCA were used with Presidential approval.
CJCSI 3110.07 sets forth the current policies regarding the use of RCAs in armed conflict, peacetime, and
OOTW.
3
Cayenne pepper spray is considered a RCA for purposes of the CWC. Its use is thus subject to the same
policy (and EO 11850) as other RCA. Use of pepper spray for law enforcement purposes is limited to
posts, camps, and stations in the US and its territories; use in such circumstances can be authorized by
installation commanders. Law enforcement use of cayenne pepper spray overseas is subject to the terms
of the SOFA and other international agreements with the Host Nation. (For information on the use of
cayenne pepper spray in law enforcement, see Message, HQDA, DAMO-ODL, Subj: Clarification
Concerning AR 190-14, Use of Force -- Use of Oleoresin Capsicum Pepper Spray, 30 Nov 94.)

JAs must be familiar with the evolving legal considerations governing the use of chemical weapons and
RCA. JAs must carefully review OPLANS, OPORDS, and ROE to ensure that they comply with current US
policy.

Landmines and Booby traps

In March 1995, the United States ratified the 1980 Conventional Weapons Convention by ratifying
Protocols I and II to the convention. Protocol II regulates the use of landmines and booby traps. The
convention prohibits the intentional targeting of civilians with these weapons. It also forbids their
indiscriminate use which is defined as use which is not directed at a military objective, use which employs a
delivery method which cannot be directed at a specific military objective, or use which violates the rule of
proportionality (where the incidental loss of civilian life, injury to civilians, damage to civilian objects, or a
combination thereof, which would be excessive in relation to the concrete and direct military advantage
anticipated).

Additional restrictions apply to the use of remotely delivered mines and nonremotely delivered weapons.
Remotely delivered mines (e.g., scatterable mines) are prohibited unless they are used in areas that are
military objectives. Even then, the mines also must be either capable of having their location accurately
recorded or contain a self-actuating or remotely-controlled mechanisms that renders the weapon harmless
when it no longer serves a military purpose. Nonremotely delivered weapons being used in populated
areas outside the combat zone also are prohibited unless employing forces either place the weapons near
a military objective belonging to or under the control of one of the adverse parties or take protective
measures for the benefit of nearby civilians (e.g., provide them with a warning).

Amended Protocol II. On 7 January 1997, the President transmitted the ratification package on amended
Protocol II. The amended Protocol II:
1. Expands the scope of he original Protocol to include internal armed conflicts.
2. Requires that all remotely delivered anti-personnel landmines (APL) be equipped with self-destruct
devices and backup self-deactivation features.
3. Requires that all nonremotely 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 in the Korean DMZ and in training.)

3
CJCS Memorandum, 1 July 1994, "Use of Riot Control Agents."

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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.
6. Provides for means to enforce compliance. In his letter of Transmittal, the President emphasizes his
continued commitment to the future elimination of all APL.

Judge advocates should also be aware of recent legislation affecting the manufacture and use of anti-
personnel landmines. The US has had a moratorium on the sale, transfer, and export of anti-personnel
landmines since 1992. This provision also excepted command detonated anti-personnel land mines (such
as the M18A1 Claymore mine) from the definition of anti-personnel landmines. Additionally, the FY 1996
Foreign Operations Appropriation Act , Pub. L. No. 104-107 contains a moratorium on the use of anti-
personnel landmines by US Forces to last for one year beginning in February 1999. Excepted from this
moratorium are command detonated Claymore mines and anti-personnel landmines along internationally
recognized national borders in demilitarized zones within a perimeter marked area that is monitored by
military personnel and protected by adequate means to ensure the exclusion of civilians, e.g., North-South
Korea and Guantanamo Bay, Cuba. All this legislation stems from the significant number of civilian
casualties (estimates range as high as 26,000 annually) resulting from the indiscriminate use of anti-
personnel landmines in internal conflicts in places such as Cambodia, Afghanistan, Angola, Mozambique,
and the former Yugoslavia.

US Policy on Anti-personnel Land Mines: According to a statement by the President on 16 May 1996, US
forces may no longer employ “dumb” anti-personnel land mines (mines that do not self-destruct or self-
neutralize); except in the demilitarized zone between North and South Korea and use for training purposes.

The Conventional Weapons Convention also bans several types of booby traps. Generally, it prohibits any
booby trap in the form of an apparently harmless portable object which is specifically designed to explode
when disturbed or approached and those booby traps designed to cause unnecessary suffering, e.g.,
pungi sticks smeared with dung. Specifically, the convention prohibits ten types of booby traps that are in
any way attached to or associated with: internationally recognized protective symbols; sick, wounded, or
dead persons; burial or cremation sites; medical facilities, equipment, supplies, or transportation;
children’s toys, or other portable objects or products specially designed for the feeding, health, hygiene,
clothing or education of children; food or drink; kitchen utensils or appliances except in military
establishments, military locations or military supply depots; objects clearly of a religious nature; historic
monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples;
animals or their carcasses. See International and Operational Law Dept. Note, United States Ratifies
1980 United Nations Conventional Weapons Convention , ARMY LAW., May 1995, at 67.

Incendiary Weapons
The customary limitations on the use of incendiary weapons are contained in FM 27-10, para. 35, which
states that incendiary weapons are lawful so long as they are not employed in such a way as to cause
unnecessary suffering. An example of such a use of an incendiary weapon would be the intentional use of
white phosphorous rounds, not just as marking rounds, but as normal rounds. The 1980 Conventional
Weapons Convention also contains Protocol III on incendiary weapons. The convention only restricts
“pure” incendiaries, (i.e., weapons whose primary effect is to set fire to objects or to cause burn injury to
humans). Expressly excepted from this definition are weapons with incidental incendiary effect (e.g.,
illuminants, tracers, and smoke), and those munitions with a combined effect (e.g., combining blast or
penetration with an incendiary effect such as armor-piercing shells (shape charges)). The convention
prohibits the intentional targeting of civilians with incendiaries and the attack on any military objective
located within a concentration of civilians with air-delivered incendiaries. The US, in ratifying the
convention, did not consent to be bound by this protocol because of concerns about the latter prohibition.
This prohibition eliminates the attacker’s normal proportionality consideration in these situations. It is the
US position that incendiary weapons may be the weapon of choice against certain targets (e.g. chemical
munitions plants), and that their use may result in fewer civilian casualties than conventional munitions. W.
Hays Parks, The Protocol on Incendiary Weapons, 279 INT’L REV. RED CROSS, 535, 548 (1990).

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On 7 January 1997, the President transmitted the ratification package for Protocol III to the Senate for its
advice and consent. The President recommended ratification on the condition of a proposed reservation -
the U.S. reserves the right to use incendiaries against military objectives located in concentrations of
civilians where such use could cause fewer casualties and less collateral damage than alternative
weapons. It is expected that Protocol III will be ratified.

Laser Weapons
On 1 September 1995 Secretary of Defense William Perry announced the DOD policy on blinding lasers.
That policy is reprinted as follows:

The Department of Defense prohibits the use of lasers specifically designed to cause permanent blindness
of unenhanced vision and supports negotiations prohibiting the use of such weapons. However, laser
systems are absolutely vital to our modern military. Among other things, they are currently used for
detection, targeting, range-finding, communications, and target destruction. They provide a critical
technological edge to US forces and allow our forces to fight, win and survive on an increasingly lethal
battlefield. In addition, lasers provide significant humanitarian benefits. They allow weapons systems to
be increasingly discriminate, thereby reducing collateral damage to civilian lives and property. The
Department of Defense recognizes that accidental or incidental eye injuries may occur on the battlefield as
the result of the use of legitimate laser systems. Therefore, we continue to strive, through training and
doctrine, to minimize these injuries.

In October of 1995, at the First Review Conference for the 1980 United Nations Conventional Weapons
Convention, the delegates produced an additional protocol to that convention (“Protocol IV”) entitled
“blinding laser weapons. That protocol prohibits laser weapons used for the purpose of causing mass
blinding to enemy combatants. Specifically, it states “laser weapons specifically designed, as their sole
function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to
the naked eye or to the eye with corrective eyesight devices.” This protocol is entirely consistent with the
DOD policy, which was used as the foundation for the negotiation of the protocol. Neither the protocol nor
the DOD policy prohibit laser systems designed to defeat or other wise counter optical or electro-optical
equipment, or laser systems for rangefinding, target designation, or similar purposes. The US has not yet
expressed its consent to be bound by Protocol IV, nonetheless, the DOD policy remains in effect

On 7 January 1997, the President transmitted Protocol IV to the Senate for its advice and consent on
ratification. It is expected that the US will ratify Protocol III.

Nuclear Weapons
Not prohibited by international law. (FM 27-10, supra, para. 35) 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) From a practical point of view, the advisory opinion seems to have had little impact.

NONCOMBATANTS
General. The Geneva Conventions recognize prisoners of war (PWs), the wounded and sick in the field
and at sea and certain categories of civilians as protected persons. Beginning with the general
requirement that they be treated humanely, the Conventions further delineate specific protections to which
they are entitled. The JA must thus be prepared to advise the CDR on all aspects of the handling of such
personnel.

Wounded and Sick

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

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of the enemy must be respected and protected ( See para. 208, FM 27-10, GWS Art 13, and GCC, Art
16). “Each belligerent must treat his fallen adversaries as he would the wounded of his own army (Pictet’s
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, CDRS 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 can not be
retained, they 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 “act
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, Pictet’s Commentary on GWS, pp. 200-201).

PWs and Detainees

Identification and Status. The initial combat phase will likely result in the capture of a wide array of
4
individuals. The US 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 US Forces will comply with the LOW regardless of how the conflict is characterized.
JAs, therefore, should advise CDRs 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 US 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 Tribunals must be convened. It is
important that JAs be prepared for such tribunals. During the Vietnam conflict, a Directive established
5
procedures for the conduct of Art. 5 Tribunals; however, no comparable Directive is presently in effect. A
sample Art. 5 Tribunal SOP is printed in the TJAGSA Law of War Workshop Deskbook.

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, JAs must be
6
aware of how to meet this obligation while placing a minimum burden on operational assets. PWs must

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 refugee 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

18-8
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 PW's rank insignia or
identification cards be taken. These protections continue through all stages of captivity, including
interrogation.

Detainees. Particularly in Operations Other Than War (e.g. Somalia, Haiti, Bosnia, as discussed above),
persons who commit hostile acts against US Forces or who commit serious criminal acts and who are
captured do not meet the legal criteria of PW under the GPW. These persons may be unlawful
combatants and termed "detainees" instead of PW. See Chapter 13 for a detailed discussion on detainees
and civilian persons.

JCS Pub 1 defines a detainee as "any person captured or otherwise detained by an armed force." Absent
responsible guidance to the contrary, however, such persons should initially be treated as PWs by
detaining soldiers and units. The effect of unlawful combatant status would attach to such persons later in
captivity, if at all (For example, unlawful combatants may be tried as criminals; jurisdiction and the
appropriate forum for trials are more issues of policy and politics than law.). In any event, detainees must
be treated humanely throughout the period of their captivity. Apply key parts of existing standards in order
to structure minimum treatment standards during the period of detention. For example, use the
humanitarian, but not administrative or technical, provisions of the GPW and Civilians Conventions
(particularly Common Article 3), and the 1977 Geneva Protocol II (although the US is not a party) by
analogy.

In this regard, the humanitarian provisions of the GPW are of particular value in OOTW. They set forth
rules of humanity that are well understood by all US Forces, particularly MP personnel , who are obviously
most often called upon to employ these rules. They provide a common point of reference and minimum
standards of humanitarian treatment, from which particular problems may be resolved either by application
or analogy. In Panama, Somalia, and Haiti, captured persons -- termed "detainees" -- were treated as
prisoners of war, at least during their capture and initial period of detention. Although not qualifying for
prisoner of war status, detainees were treated with dignity and humanity. Detainees in Panama, most of
whom met the criteria for members of the regular armed force under GPW Article 4, were treated as
prisoners of war throughout their brief period of captivity. In Somalia and Haiti, detainees were treated in
accordance with the humanitarian standards of the GPW. For a more detailed discussion of this search
for humanitarian standards in OOTW, see chapter 13.

In both Somalia and Haiti, US Forces detained persons who fell within two deliberately narrow categories:
those who posed a threat to the force ( the legal basis for such action resting in Art 51 of the UN charter)
and those who had committed a serious criminal act (the legal basis of these actions relying on the
mission’s mandate to create a “secure and stable environment” as stated in UNSCR 940). JAs prepared
the list of humanitarian standards for detainees by using the humanitarian provisions of the GPW, among
other authorities, as a general foundation. They then tailored additional standards to the nuances of each
operation. In Somalia, for example, detainees were originally held in anticipation of release to the custody
of an emerging Somali government. As the political situation in Somalia failed to improve, detainees were
held not only for a longer time than anticipated, but toward an uncertain disposition. The US refrained from
trying any of the detainees (all of whom were unlawful combatants or common criminals) by military
commission or General Court-Martial, as it could have under the UCMJ and the law of war. Some of the

camps, the US 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 US 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.

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detainees, held for less serious infractions, were simply released over time. More serious offenders were
transferred to the custody of the United Nations.

Although human rights groups generally found the conditions of detention to be acceptable, the uncertain
circumstances and duration of the detention provoked some criticism. Some commentators objected to the
continued holding of detainees without "arraignment" or "trial." Some detainees claimed that they did not
know why they were being held, and that they had been mistreated in the course of interrogation. Many
detainees expressed concern that they were afforded no forum in which to communicate with military
authorities and "tell their side of the story" concerning the incident occasioning their detention.

In Haiti, JAs helped develop an approach which addressed the criticisms and concerns which had arisen in
Somalia. A JA was assigned to the Joint Interrogation Center and to the Joint Detention Center. Military
Intelligence interrogators questioning the detainees were instructed to use the same rules, and restrict
themselves to the same interrogation techniques, as would apply to prisoners of war. Detainees were
allowed visitation hours four days per week. Visitors could include family members, physicians, or
attorneys. The Detention Center commander provided a daily list of detainees to the ICRC. Each
7
detainee was visited by a "Detainee Judge Advocate" within seventy-two hours of his detention. Through
a Creole-speaking interpreter, the Detainee JA explained to the detainee the basis for his detention and
afforded the detainee the opportunity to communicate, through the Detainee Judge Advocate, to the
General Officer commanding the Multinational Force. The communication of the detainee, which generally
requested immediate release, was reduced to writing, then forwarded through the SJA to the Commanding
General. The SJA, and the Force's J-2 and Provost Marshal, would collectively review detainees' requests
for release.

The utility of the GPW in establishing minimum treatment standards for detainees was validated by the
8
provisions of the Convention on the Safety of United Nations and Associated Personnel. Applying by its
terms only in those operations to which the GPW does not apply as a matter of law, the Convention
nonetheless requires that captors release captured or detained United Nations and associated personnel,
and pending their release, treat such persons in accordance with "the principles and spirit of the Geneva
Conventions of 1949." This approach -- demanding treatment, but not status, in accordance with the GPW
-- was used by the United States in its communications with Mohammed Aideed concerning Chief Warrant
9
Officer Michael Durant, the Army helicopter pilot detained in Somalia in October 1993.

Civilians
See Chapter 13.

Civilians Deployed in Support of US Forces

Civilians, either as DoD/DA employees or as contractors, deployed with US Forces to the Gulf War, and to
Somalia and Haiti. JAs whose units are likely to deploy with civilian support -- now increasingly likely as
the Army draws down and fields the Logistics Support Element (LSE) concept -- must recognize several
major issues concerning civilians in operations. First, absent a declared war or commission of a war
10
crime, no UCMJ jurisdiction exists over civilians. Second, civilians in support of the force may be armed

7
This time period was borrowed from the Haitian Constitution. JAs in Haiti were relying on host nation law, see Chapter 13. Their
approach was a creative, sound approach which worked well in Haiti. Although praised by the ICRC, it should not be read as
establishing a new standard of customary law or as standing US policy on detainees.

8
U.N. GAOR, 49th Sess., U.N. Doc. A/49/742 (1994). The US has signed, but not ratified, this Convention.

9
Contrast Chief Durant with Chief Hall, the US Army aviator captured by North Korea in December 1994. Chief Hall was a prisoner of
war -- a member of the regular armed forces (Article 4, GPW) present in an international armed conflict (Article 2, GPW), albeit after an
Armistice agreement.

10
US v. Averette, 19 U.S.C.M.A. 363, 41 C.M.R. 363 (1970). A proposed amendment to Title 10 (through the FY 1996 DoD
Authorization Act) would create court-martial jurisdiction over civilians "accompanying the forces in the field in time of armed conflict,"
defining "armed conflict" broadly so as not to require declaration of war or national emergency by the President or Congress.

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 11
for personal defense, provided protective equipment and uniforms, and trained on the UCMJ, law of war,
weapons, and related matters commensurate with the threat and theater policy. They shall be given
Geneva Convention ID cards. (See DoD Directive 1404.10, "Emergency-Essential (E-E) DoD US Citizen
Civilian Employees," April 10, 1992.) Third, if captured in a conflict to which the GPW applies, such
civilians shall be accorded PW status (Article 4, GPW). A comprehensive policy primer on civilian
deployment issues is found in the AMC Deployment Guide, USAMC (March 1994).

Enemy Dead
General. The LOW requires Parties to a conflict to search for the dead and prevent their despoilment.
The Parties must ensure proper burial, register grave sites, and, as soon as circumstances permit, relay to
the affected Party, the exact location of burial and details of death. Parties may cremate the dead only
for hygienic or religious reasons.

Problems. While the law is clear, experience has shown that it is difficult to apply in a fast moving combat
situation, particularly in a climate where bodies despoil quickly and when identification tags are lacking. All
of these problems existed in Grenada. Delay in burying enemy dead in the initial days of combat resulted
in despoiled bodies. The lack of identity discs required by the GPW Convention made it impossible not
only to identify the dead, but, in some cases, to determine their nationality. Because some remains could
not be identified, the International Committee of the Red Cross (ICRC), the organization assisting in the
return of Cuban dead, balked at returning a number of the unidentified bodies to Cuba.

Preventive Measures. JAs should ensure that OPLANs and OPORDs emphasize the proper treatment of
enemy dead. Additionally, issues associated with the treatment of enemy dead may be included in
exercise problems. For example, such issues may be integrated with other post-battle tasks, such as the
handling of EPWs.

WAR CRIMES
General. US policy on the LOW is stated in DoD Directive 5100.77 (DoD Law of War Program). Except
when properly determined by the National Command Authority that it is not applicable, DoD Components
shall comply with the LOW in the conduct of military operations and related activities in armed conflict. The
JCS SROE (Chapter 8, this Handbook) state that, "US Forces will always comply with the Law of Armed
Conflict."

Definition of War Crime. The term "war crime" is the technical expression for a violation of the LOW
committed by any person or persons, military or civilian. Every violation of the LOW is a war crime.

Command Responsibility. CDRs are responsible for war crimes committed by their subordinates when any
one of three circumstances applies:
(1) The CDR ordered the commission of the act;
(2) The CDR knew of the act, either before or during its commission, and did nothing to prevent or stop it;
or when
(3) The CDR 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."

JAs must keep their CDRs informed of their responsibilities concerning the investigation and prosecution of
war crimes. The CDR must also be aware of his potential responsibility for war crimes committed by his
subordinates.

Investigative Assets. Several assets are available to assist CDRs investigate suspected violations of the
LOW. Investigations can be conducted with organic assets and legal support, using AR 15-6 or
11
Although civilians may be armed, another question is whether they should be armed. In addition to the threat and tactical scenario,
consider whether sufficient training of, and control over, civilians exists to make issuance of arms a prudent course of action in a
particular operation.

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commander's 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 CDR may have Reserve Component JAGSO
teams available to assist in the investigation. JAGSO teams perform JA duties related to international law,
including the investigation and reporting of violations of the LOW, 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 JAs.

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 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.

Prevention of War Crimes. CDRs must take steps to ensure that members of their commands do not
violate the LOW. 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 command to
take preventive action. The following is a list of some of the factors that the command and the JA should
monitor in subordinate units.
(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 which clearly violate the LOW must understand
how to react to such orders. Accordingly, the JA 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 obligation to disobey the
order and report the incident to the next superior CDR, military police, CID, nearest JA, or local inspector
general.

OTHER LEGAL ISSUES IN ARMED CONFLICT

War Trophies
General. 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 US domestic law, rather than under the law of war. Confiscated enemy military property is property
of the US. The property becomes a war trophy -- and capable of legal retention by an individual soldier --
only if the US so designates the property IAW law and regulation.

War Trophy Policy. Section 1171 of the 1994 National Defense Authorization Act states the US policy on
war trophies. In essence, the law amends Title 10 by adding section 2579; 10 USC 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

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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 ATF. 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
US 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 SENSE -- does the policy make sense?

2. CLARITY -- can it be understood at the lowest level?
3. CI -- is 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. CONSISTENCY -- are 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 which is promulgated by the
unified command and applies to all of its components is better still.)
5. CUSTOMS -- prepare for customs inspections, "courtesy" inspections prior to redeployment, and amnesty
procedures.
6. CAUTION -- Remember 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 a problem: "If you didn't drop it, don't pick it up."

Interaction with the International Committee of the Red Cross (ICRC)

12
ICRC Objectives
1. Limit the suffering caused by armed conflicts, disturbances, and tension.
2. To ensure humanitarian activities are carried out in safe conditions (and particularly, that ICRC staff are
respected).
3. To strengthen the Movement's identity and image.
4. To propagate a spirit of peace.

ICRC Subject Matter

1. The four 1949 Geneva Conventions and their two 1977 Additional Protocols;
2. The Fundamental Principles, the Movement's ideals, its activities and its historical background. There
are intentional links to human rights law, refugee law, etc.

ICRC Targets
1. The armed forces and other authorities responsible for applying International Humanitarian Law;
2. National Society (Red Cross) leaders, staff, and volunteers.
3. Young people and teachers.
4. The media.
Dealing with 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 US will invite the ICRC to observe PW
conditions as soon as circumstances permit. Once on the scene, the ICRC will closely examine
compliance with the LOW and, in particular, the Geneva Conventions concerning a broad range of issues.

12
Taken from their "Guidelines for the '90s" (Apr 92).

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Given his professional qualifications and specialized training in the LOW, the JA should serve as the escort
13
and liaison officer with the ICRC. This role is doctrinal, and stated in FM 71-100-2, I NFANTRY DIVISION
OPERATIONS TACTICS, TECHNIQUES, AND PROCEDURES, page 6-28. The JA can quickly identify and resolve
many LOW issues before they come to the CDR's attention. For those LOW matters requiring command
decision, the JA is best suited to provide advice to the CDR and obtain timely responses. These same
skills are essential in dealing with ICRC observers. The JA can best serve as the CDR's skilled advocate
in discussions concerning the LOW with the ICRC.

Both the CDR and the JA must be aware that the ICRC does not function merely as a LOW referee,
14
eagerly watching for and reporting LOW violations. 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 JA receives a two-fold benefit. He is assisted in
identifying LOW issues before they pose problems to the command, and he has access to additional legal
resources which may be used to resolve other LOW and OPLAW matters.

The ICRC is also heavily involved in OOTW, 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 US Agency for International Development (USAID). A discussion of
US government, UN, and other international organizations is at Appendix E, this Handbook.

LAW OF WAR OUTLINE

[Instructor's Notes included after outline]

I. INTRODUCTION

II. SOURCES OF THE LOW

A. Treaties
B. Uniform Code of Military Justice (UCMJ)
C. Customary LOW

III. REASONS TO COMPLY WITH THE LOW

A. Compliance ends conflict more quickly
B. Increases public support of military
C. Encourages reciprocal conduct by enemy soldiers
D. Reduces waste and costs of any reconstruction
E. Required by our national law

IV. SOLDIER'S GENERAL RESPONSIBILITIES IN WARTIME

A. Follow all lawful orders
B. Proper response to orders that seem unlawful
C. Know and apply The Soldier's Rules

13
General Prugh (former TJAG) fulfilled the task of "interfacing" with the ICRC when he was the legal advisor to CDR, MACV in Viet
Nam. General Prugh relates that during the early stages of Viet Nam, OTJAG concluded that the US 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 JAs 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. Haiti AAR, supra, at 64.

14
It is essential to understand the neutrality principle of the ICRC. One must stay at arm's length from the delegates so as to not risk
harming their relationships with the enemy. For example, ICRC personnel will meet with prisoners in private.

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V. THE SOLDIER'S RULES
A. Fight only enemy combatants
B. Do not harm enemies who surrender -- disarm 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 steal -- respect private property and possessions
I. Do your best to prevent violations of the law of war -- report all violations to your superior

VI. FORBIDDEN TARGETS, TACTICS, AND TECHNIQUES

A. General Observations
B. Forbidden Targets
C. Forbidden Tactics
D. Forbidden Techniques

VII. RULES REGARDING CAPTURED SOLDIERS

A. Handling Surrender of Enemy Soldiers
B. Treatment of Captured Soldiers on Battlefield
C. Your Rights and Responsibilities If Captured

VIII. RULES REGARDING CIVILIANS AND PRIVATE PROPERTY

A. Treatment of Civilians
1. General Rules
2. Special Classes of People
a. Women
b. Spies
B. Treatment of Private Property
1. Avoid confiscation, seizure or destruction of private property
2. Narrow exception for military mission

IX. OBLIGATIONS TO PREVENT AND REPORT LOW VIOLATIONS

X. CONCLUSIONS AND QUESTIONS

LAW OF WAR CLASS

[Instructor’s Notes; Instructor's Outline precedes these notes]
Time expected: 50 minutes

Suggestions: TRAIN, DON'T LECTURE. Adapt training to the needs, mission, METL, and experiences of
the particular unit. Integrate training into exercises, maximize combat realism, use role players.
Synchronize law of war training with ROE vignette training. Be aggressive, dynamic, and enthusiastic.
Go to the NCO/officer in charge of unit training and GET ON THE UNIT TRAINING CALENDAR. Develop
a training plan (e.g., two hour of classroom training followed by field reinforcement).
Further Sources: For a more complete guide, see, "Instructor's Guide -- The Law of War," TC 27-10-3
(April 1985). Interesting problems are found in "Selected Problems in the Law of War," TC 27-10-1 (June
1979). For answers to substantive questions, the best sources are, "The Law of Land Warfare," FM 27-
10 (July 1956), and its companion, "International Law, Volume II," DA Pam 27-161-2 (October 1962). A
short, simple presentation of the soldier's law of war (LOW) obligations is found in, "Your Conduct in
Combat Under the Law of War," FM 27-2 (November 1984). The Army's LOW training obligations are set
forth in AR 350-41 (19 March 1993).

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I. INTRODUCTION.
(Consider using a personal experience or other interesting information to get the students' attention.
Caution students that, as soldiers, they are subject to criminal prosecution and severe punishment for
commission of some of the acts covered in the class. Also, note that following the LOW rarely, if ever,
prevents a soldier from accomplishing the military mission.)

II. SOURCES OF THE LOW

A. Treaties signed by US and most other countries (e.g., Hague Convention Number IV of 1907 and
Geneva Conventions of 1949, commonly called the "Hague and Geneva Conventions")
B. Uniform Code of Military Justice (UCMJ) (under UCMJ, soldiers can be severely punished for assault,
pillage, rape, and murder of enemy prisoners of war (EPWs) or civilians)
C. Customary LOW (e.g., at Nuremburg trials after WWII, members of the German High Command were
imprisoned and in some cases executed for violations of the customary LOW.

III. REASONS TO COMPLY WITH THE LOW -- EVEN 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 US soldiers generally receive not only from the US 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 US 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 which are part of our national
law. Violation of the LOW is a serious crime punishable by death in some cases.

IV. SOLDIER'S GENERAL RESPONSIBILITIES IN WARTIME

A. Carry out all lawful orders promptly and aggressively.
B. In rare case when an order seems unlawful, don't carry it out right away but don't ignore it either;
instead, seek immediate clarification of that order.
1. Soldiers may be held criminally responsible for any unlawful acts which 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 Soldier's Rules.
2. Forbidden targets, tactics, and techniques.
3. Rules regarding captured soldiers.
4. Rules for the protection of civilians and private property.
5. Obligations to prevent and report LOW violations.

V. THE SOLDIER'S RULES

A. Fight only enemy combatants.
B. Do not harm enemies who surrender -- disarm 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 steal -- respect private property and possessions.
I. Do your best to prevent violations of the law of war -- report all violations to your superior.

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VI. FORBIDDEN TARGETS, TACTICS, AND TECHNIQUES
A. General Observations. Soldiers attack aggressively . . . violently; but there are several important
limitations in attacking the enemy.
B. Forbidden Targets. It is forbidden to attack certain targets. Examples of these targets include:
1. Protected persons and other non-combatants.
2. Parachutists (pilots bailing out of disabled aircraft) -- paratroopers are lawful targets.
3. Persons, vehicles, buildings marked with Red Cross or other recognized symbol.
4. Other protected property such as religious buildings, schools, historical monuments, and other similar
properties of cultural significance.
C. Forbidden Tactics. It is forbidden to use certain tactics in attacking the enemy. Examples of these
tactics include:
1. Pretending to surrender to conceal a surprise attack.
2. Attacking enemy soldiers who have lost the ability to fight.
3. Wearing Red Cross when not performing medical duties.
4. Establishing a defensive position in church, hospital, or other protected place.
5. Fighting the enemy in civilian clothes or while wearing the enemy's uniform.
6. Causing destruction beyond that required to complete the military mission.
D. Forbidden Techniques. Certain weapons are prohibited by the LOW because such weapons are
calculated to cause "unnecessary suffering" for the victims (e.g., "dum-dum" bullets and poisons).

VII. 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 violation -- a "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.
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, such rights cannot be waived by the POW.
15
3. Responsibilities as a POW.
a. POWs must obey reasonable camp regulations.

15
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.

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 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 enemy's war effort. Also, POWs are entitled to payment for their work. Note commissioned
officer POWs may volunteer to work, but may not be compelled to do so. NCO POWs may be
compelled to perform supervisory work.

VIII. RULES REGARDING CIVILIANS AND PRIVATE PROPERTY

A. Treatment of Civilians.
1. General Rules:
a. While soldiers have certain affirmative LOW obligations regarding EPWs on the battlefield, such as
the obligation to feed, clothe and otherwise protect such EPWs from harm, the soldiers' LOW
obligations regarding civilians are generally different.
b. Soldiers have primarily negative obligations with regard to civilians on the battlefield. E.g., the
obligation not to kill or torture them and not to take them as hostages or otherwise subject them
to inhumane treatment. Such mistreatment of civilians represents a "grave breach" of the LOW.
2. Special Classes of People.

a. Women. The LOW specifically prohibits any attacks on their honor, including any form of sexual
assault.
b. Spies. The term "spy" refers only to an enemy agent who acts secretly in our area of operations to
obtain information on those operations with the intent of communicating that information back to the
enemy. Thus, an enemy soldier in uniform (without a disguise) who quietly enters our area of
operations to obtain and communicate such information to the enemy headquarters is not a spy.
US soldiers must treat all spies as well as other captured persons as EPWs pending a formal
determination as to each such person's status.
B. Treatment of Private Property:
1. As a general rule, it is a violation of the LOW to confiscate or destroy private property. Note that
extensive destruction or appropriation of civilian property may be a "grave breach" of LOW (e.g.,
Iraqi looting and other destruction of private property in Kuwait was so extensive as to constitute a
"grave breach" of the LOW).
2. However, LOW does recognize a narrow exception to this general rule. The destruction or seizure of
civilian property will not be a violation of the LOW if such action is necessary to accomplish a military
mission and the civilian loss involved is not out of proportion to the military advantage to be gained
from the planned action. Note concepts of "military necessity" and "proportionality."

IX. 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).

X. CONCLUSIONS AND QUESTIONS

Express Prohibitions of the LOW

The following measures are expressly prohibited by the law of war and are not excusable on the basis of
military necessity:
a. Attack or bombardment of undefended locales or undefended civilians. This does not prohibit attack
or bombardment of facilities directly supportive of the enemy's war effort, such as munitions factories
and warehouses containing war material.
b. Attack or bombardment of medical units, facilities, individual medical personnel performing medical
duties, or medical vehicles or aircraft transporting the wounded or sick.

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c. Attack or bombardment of chaplains or religious facilities used for religious purposes.
d. Attack or bombardment within hospital or safety zones established under Art. 14 of the Geneva
Civilians Conv. (GC) or neutral zones established under GC Art. 15.
e. Use or positioning of friendly medical units or facilities as a shield from attack.
f. Utilization of the Red Cross protective emblem by personnel, vehicles, aircraft, or facilities not
engaged in medical or religious services.
g. Ordering that no quarter be given.
h. Killing or wounding of enemy who have surrendered or are incapacitated and incapable of resistance.
i. Using weapons which cause unnecessary suffering, destruction to the natural environment not
justified by military necessity, or poison weapons. This prohibition does not preclude the use of
herbicides or riot control agents by US forces when authorized by the President of the US or his
delegate. The US has renounced all use of biological weapons and first use of chemical weapons
(see "Chemical Weapons," this Chapter).
j. Pillage or plunder of cities, towns, villages, or other properties. Art. 103, UCMJ (1984 Rev).
k. Treacherous killing or wounding. This prohibition applies to situations where the laws and customs of
war require good faith between opposing forces as a matter of soldierly honor. Examples of
treacherous killing include the killing of enemy troops after feigning surrender or showing a flag of
truce; after falsely broadcasting an armistice or cease-fire; or through misuse of the Red Cross
emblem. There is no prohibition against legitimate deceptions, such as feigned attacks, false radio
traffic, dummy emplacement, or release of false information.
L. The taking of hostages.
m. Reprisals against persons or property protected by the Geneva Conventions, to include the
wounded, sick, or shipwrecked, prisoners of war, detained personnel, civilians, their property,
religious or cultural edifices, and items such as food stuffs and livestock essential to the survival of
the civilian population.
n. Forcing a safeguard. Art. 102, UCMJ.

18-19
 CHAPTER 19
LEGAL ASSISTANCE

INTRODUCTION.
Winning in wartime depends in large part on the efficiency of each soldier in combat. The soldier's combat
efficiency may be adversely affected by legal problems left behind at deployment. One objective of the
Army Legal Assistance Program is to assist the soldier in avoiding those problems and thereby enhance
combat efficiency. The Deployment Guide, JA 272, outlines a program that will enable judge advocates
involved in deployment activities to tailor their legal assistance program to meet the needs of soldiers and
their families both before and during such deployment.
The many facets of legal assistance make it impossible to summarize in this Handbook all necessary law
and to identify all resources. However, it does provide material that may help a Legal Assistance Office
(LAO) prepare for pre-deployment and deployment operations. Refer to JA 272, Deployment Guide, for
policy guidance, sample SOPs, and letters.
THE LEGAL ASSISTANCE MISSION.
From an operational standpoint, the mission of legal assistance is to 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 as efficiently as possible. Accomplishing this mission may well be
one of the JA's most important functions. Personal legal difficulties may not only reduce combat efficiency
but may 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 soldier's 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 AND DEPLOYMENT).

A. Introduction.
1. The Army Legal Assistance Program (ALAP), AR 27-3, consists of a number of
client and preventive law services. No distinction is made between the type of
legal assistance service that is provided to a client seeking help with a personal
legal problem and that which is rendered to a soldier preparing for deployment.
2. Legal Assistance is provided by Active Component (AC) and Reserve Component
(RC) judge advocates and civilian attorneys in a variety of settings, to include:
a. During combat readiness exercises such as an emergency deployment
readiness exercise (EDRE) or an 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.
B. Soldier readiness program (peacetime).
1. AR 600-8-101, Personnel Processing (In- and Out- and Mobilization Processing)
establishes the Soldier Readiness Program (SRP):
a. To ensure that all soldiers will be administratively ready for deployment at
all times,
b. To replace preparation of replacements for overseas movement (POR)
qualification, and
c. To incorporate planned checks on the soldier readiness status of the
individual soldier.The processing program prepares, validates, and
reports individual soldier and unit readiness for deployment, including
shortfalls, to the unit commander.
19-1
 2. The status of individual soldier readiness is checked during:
a. In-processing (at the battalion/unit level, follow-up action is required on
soldier readiness processing requirements),
b. Once annually as a unit or an individual,
c. During out-processing, and
d. Within 30 days of actual unit deployment date or date individual soldier
departs on extended TDY (90 days or more).
3. DA Form 5123-1-R (Personnel In-processing Record) is used to determine the
readiness status of the soldier. (Form contained in AR 600-8-101)
4. 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).
b. The SRPT will include a representative from the legal office (as well as
personnel, medical, dental, provost marshal, finance, security, logistics,
and operations).
5. There are five (5) levels of requirements to prepare soldiers for basic movement
through deployment and wartime movement. 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 - also, soldiers requiring them will have satisfactory Family
Care Plans (DA Form 5304-R) on file; otherwise, they will not deploy.
b. Level 2 - Wartime movement stopper soldier readiness processing
requirements. Soldiers must have received sometime in their current
enlistment/career, a Geneva Convention briefing prior to deployment.
(see Appendix re: LOW training/Geneva Convention)
Note: At Levels 1 and 2, signature of the person in charge of the
individual SRPT station is required (signifying all requirements have been
met by the soldier) before clearance for movement is granted).
c. Level 3 - Other soldier readiness processing requirements.
(1) Each soldier pending civil felony charges will be provided
assistance and may not move as result of these charges.
(2) Given time and other resources, power of attorney support may
be provided to each soldier.
(3) Given time and other resources, support may be provided to each
soldier for making a Will.
(4) Soldiers will be counseled on insurance and other civil matters.
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.
C. 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 (see IV. B. 6. above). Levels 1 and 2 are
mandatory compliance levels while 3 and 4 may be waived by a
general officer in command.

19-2
 (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 will coordinate with Bn S1 on schedule, location and roster of
personnel to be checked.
b. Chief, SRPT will provide list of nondeployables 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. (See Below)

TABLE 19-1: UNIT MOVEMENT SOLDIER READINESS CHECKS

(Reproduced from Table 5-1, AR 600-8-101)

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

19-3
The next two charts detail 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 contributes
to better processing efficiency.

SRP M odel

SJA 2 Security S3 Finance

AG
D ental

S1
SJA 1 SG LI M edical
ID

PROPOSED FLOW OF LEGAL PROCESSING

PROCESSING TIME GOALS:

30 min. 15 min. 30 min. 10 min.

(M inimum)

Legal Pre- Attorney Document

Brief Interview Other SRP Stations Review &
(Group) Execution

Document Technical
Preparation Review

Actual Flow of Soldiers

Internal LAO Processing

19-4
II. THE RESERVES.
A. MOBILIZATION PROCESSING PROGRAM.
• Involves home station and mobilization station processing requirements to access
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 of 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:
(1) A Presidential Selected Reserve Call-up, S-Day,
(2) Partial mobilization, T-Day, or
(3) Full mobilization, M-Day.
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.
3. CONUS Replacement Centers (CRC).
a. Operations are executed by the CRC Replacement Battalion (USAR) on
pre-designated Army installations. 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).
4. 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.
5. 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 (see outline above)
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.
19-5
 e. AR 600-8-101, Table 6-17, provides steps and work centers for
Mobilization Processing at the Legal Station.

TABLE 19-2: MOBILIZATION PROCESSING AT THE LEGAL STATION

(Reproduced from Table 6-17, AR 600-8-101)
Step Work Center Required Action

1 IOPR ACTIVITY Verify Geneva Convention Briefing

2 IOPR ACTIVITY Determine soldier's 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

_____________________

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.
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, JAs 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 not be delayed. JAs 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 when and where the legal team will meet for the
exercise or deployment.
(2) Provide who will remain at the legal assistance office as back-up
support for the exercise/deployment legal team.
(3) Reschedule office hours of operation if 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.

19-6
 2. During exercises and deployments, JAs 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
unless the client is domiciled in a state that specifically authorizes
the execution of such 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 attorneys guidance concerning soldiers pending civil and criminal
proceedings.
(1) Requests for stays of civil proceedings should be made via letter
from the soldier's commanding officer - requests for stays by
legal assistance attorneys may be considered appearances and
work to the detriment of the soldier (See: The Soldiers' and
Sailors' Civil Relief Act (SSCRA)).
(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.
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, INTERIM CH. 102 (1 APR 92), PARA 5-5.)
A. Mission, readiness, and deployability needs especially affect Active Component (AC) and
Reserve Component (RC) single parents and dual military couples with dependent family
members.
B. AR 600-20, Interim Ch. 102, requires those soldiers to implement the 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, and will implement plans
during any periods of absence for Annual Training, regularly scheduled unit training
assemblies, emergency mobilization and deployments, or other types of active
duty.
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 affected soldiers complete the
Family Care Plan.
a. The unit commander is the sole approving authority for DA Form 5304-R.
b. This responsibility will not be delegated.
2. Affected soldiers are considered nondeployable until a Family Plan is validated
and approved.
E. In conjunction with Family Care Plan counseling, commanders will encourage, but not
require, soldiers to consult legal assistance attorneys for Will preparation.
F. More information concerning Family Care Plans is provided in JA 272, Deployment Guide.
V. LEGAL ASSISTANCE SUPPORT DURING DEPLOYMENT.
A. PREPARATION.
1. While the term "mobilization" technically refers to the activation of Reserve
Component (RC) personnel -- including individuals and units of both the Army
National Guard (ARNG) and the Army Reserve (AR), here the term "mobilization"
is used more broadly to refer to the preparation of both AC and RC units for
deployment overseas or other distant movements.

19-7
 2. Timely effective legal support of the mobilization of AC and RC units depends in
large part on the following five factors:
a. Familiarity with the general legal support needed during mobilization, so
that SJA offices can be organized and functions prioritized to provide such
support;
b. Knowledge of the particular requirements in each substantive area of the
law in order that all legal personnel can be properly trained and so that
proper references and forms will be on hand when needed;
c. Opportunities to participate in Corps/Division exercises to test the
deployment plans that have been made 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.
B. 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. Build rapport with family support groups;
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. Pre-deployment
preparation is essential.
b. Familiarity with DA Pam 608-33 (Casualty Assistance Handbook) and AR
600-8-1 (Casualty and Memorial Affairs) is essential.
c. JAs 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.
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.
C. 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 communications, transportation, and aviation
elements for contact and courier service with JAs in the rear echelon (the
installation from which the deployment took place).
c. Establish liaison with US 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.

19-8
 b. Coordinate with communications, 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.
D. LEGAL RESOURCES NEEDED: See Checklists at the end of this chapter
E. 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 cross-trained 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 JAs 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.
CHECKLISTS

Table 19-3: Sample Ready Box

Item Quantity ✔
Lap top computer/printer 2
LAAWS program
Disks containing sample forms
Disks/CD-ROM w/ TJAGSA LA Pubs (See Table 19-5)
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

19-9
 Paper, tablets 4
Pens, boxes 5
DA Form 4944-R (Jul 92) Report on Legal Assist. Services 10
Powers of Attorney (10 USC 1044a Notary)
General 200
Blanks 50
Special Forms & Clauses (Check Cashing, Medical, 50 ea
Guardianship, Use of Car, etc.)
Regulations & References (See Table 19-4)
Seals (authority of 10 USC 1044a)* 2
Signs (Legal Assistance) 2
Staple removers 4
Stapler w/extra staples 4
Will Guides 3
Will Interview Worksheets 100
Simple Will Forms 100
Routine Form Letters (See Table 19-6). 100 ea
* 10 USC 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.

Table 19-4: 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)
AR 600-15 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).

19-10
 Table 19-5: TJAGSA Publications on the LAAWS
BBS & 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 Outline and References
JA 276 Preventive Law Series

Table 19-6: 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

TJAGSA LEGAL ASSISTANCE BRANCH PUBLICATIONS

Number Title
JA 260Soldiers' & Sailors' Civil Relief Act (Apr. 1994)
JA 261Real Property Guide (Mar. 1993)
JA 262Wills Guide (May 1993)
JA 263Family Law Guide (June 1993)
JA 265Consumer Law Guide (Sep. 1993)
JA 267Legal Assistance Office Directory (Jun. 1994)
JA 268Notarial Guide (Apr. 1994)

19-11
JA 269Income Tax Information Series (Jan. 1994)
JA 270Veteran's Reemployment Rights Law Guide (Mar. 1991)
JA 271Legal Assistance Office Administration Guide (May 1994)
JA 272Legal Assistance Deployment Guide (Feb. 1994)
JA 274Uniformed Services Former Spouses' Protection Act
Outline and References (Nov. 1992)
JA 275Model Income Tax Assistance Guide (Aug. 1993)
JA 276Preventive Law Series (Jun. 1994)
• Most of the Legal Assistance publications are available from the LAAWS Bulletin Board System (BBS) in
"zipped" format. The publication can be read by any word processor when decompressed into ASCII
format.
---------
LEGAL ASSISTANCE CODE PROVISIONS
10 U.S.C. ∋ 936
10 U.S.C. ∋ 1044.
10 U.S.C. ∋ 3013g.
---------
ARMY
AR 27-3, Army Legal Assistance Program (30 Sep. 92).
AR 608-99, Family Support, Child Custody, and Paternity (1 Nov. 94).
AR 27-55, Notarial Services (21 Jan. 94).
TJAGSA Publication JA 271, Legal Assistance Office Management Guide (May 94).
The Army Lawyer (published monthly).
Legal Automation Army-Wide System (LAAWS) electronic bulletin board (BBS). See The Army Lawyer for list of
uploaded files and instructions for access and downloading.
Hancock, Legal Assistance Generally, The Army Lawyer, Jan. 1992, at 43.
Arquilla, The New Army Legal Assistance Regulation, The Army Lawyer, May 1993, at 3.
Regimental News From the Desk of the Sergeant Major, Legal Automation Army-Wide System Bulletin Board System,
The Army Lawyer, May 1993, at 56.
Arquilla, The Survey of Soldiers on Legal Assistance, The Army Lawyer, May 1994, at 44.
NAVY AND MARINE CORPS
Manual of the Judge Advocate General (JAGMAN), ch. VII, Legal Assistance.
Legal Assistance Manual, JAGINST 5801.2, pending as of July 1994 [as drafted, does not apply to Marine Corps]
Navy Legal Assistance Memoranda and Practice Advisories [published throughout the year by Deputy Assistant
Judge Advocate General (Legal Assistance)], Office of the Judge Advocate General, 200 Stovall Street, Alexandria,
VA 22332-2400 (703-325-7928). (See also JAGNET BBS)
Commander, Naval Legal Service Command Instruction 5800.1B, 10 March 1988, Subject: Naval Legal Service
Office Manual.
AIR FORCE
Air Force Policy Directive (AFPD) 51-5 (27 Sep. 1993) covering legal assistance and preventive law. [Air Force has
rewritten all its regulations into Air Force Implementing Instructions (AFIs).]
Air Force Instruction (AFI) 51-504 (6 May 1994), Legal Assistance, Notary, and Preventive Law Programs.
The Reporter (published quarterly by the JAG School).
Uniform Deskbook Series (published by JAG school).
COAST GUARD
Legal Assistance Program, Commandant Instruction 5801.4A of 22 JUL 1992.
USCG Work-Life Beneficiary Guide, Commandant Publication P5200.15, pp. 3.9-3.10.
--------
MISCELLANEOUS
Uniformed Services Almanac (published annually by Uniformed Services Almanac, Inc., P.O. Box 76, Washington,
D.C. 20044).
Legal Assistance Symposiums: First, 102 Mil. L. Rev. 1 (1983); Second, 112 Mil. L. Rev. 1 (1986); Third, 132 Mil. L.
Rev. 1 (1991).
USAREUR Legal Assistance Handbook, Host Nation Law, Federal Republic of Germany.
Borgen, Management and Administration of Military Legal Assistance Offices, The Army Lawyer, Apr. 1975, at 1.
Sullivan, Preventive Law by Handout, The Army Lawyer, May 1984, at 29. Sullivan, Preventive Law: The Genuine
Article, The Army Lawyer, Sep. 1984, at 35.

19-12
Pardue, Ten Steps to a More Successful Legal Assistance Practice, The Army Lawyer, Oct. 1985, at 3. Copeland,
Mobilization of Reserve Forces and Legal Assistance, The Army Lawyer, Apr. 1987, at 6.
Sullivan, Lawyer Referral...Do's and Taboos, The Army Lawyer, Jun. 1988, at 18.
Wentink and Hoskey, The Electronic Bulletin Board for Army Lawyers, The Army Lawyer, Mar. 1990, at 56.
Gsteiger, Representing a Veteran After Default of an Assumed VA-Guaranteed Home Loan, The Army Lawyer, Jan.
1993 at 3.
Veterans' Affairs Note, VA Home Loan Program Changes, The Army Lawyer, Apr. 1993 at 21.
Smith, Choice in Dying, Refusal of Treatment Legislation - A State by State Compilation of Enacted and Model
Statutes (1992).
Local Laws Affecting Military Personnel Residing in the Greater Washington, DC Area, [Prepared by Judge Advocates
General of the Army, Navy and Air Force], September 1991.
--------
RULES OF PROFESSIONAL CONDUCT
AR 27-26, Rules of Professional Conduct for Lawyers (May 1992).
Model Rules of Professional Conduct.
TJAGSA Publication: Materials on Professional Responsibility for Supervisory Lawyers (distributed annually at SJA
CLE).
TJAGSA Publication JA 271, Legal Assistance Office Administration Guide (May 94).
Burnett, The Proposed Rules of Professional Conduct: Critical Concerns for Military Lawyers, The Army Lawyer,
Feb. 1987, at 19.
Ingold, An Overview and Analysis of the New Army Rules of Professional Conduct for Lawyers, 124 Mil. L. Rev. 1
(1989).
The Annotated Model Rules of Professional Conduct, American Bar Association (1984).
The Legislative History of the Model Rules of Professional Conduct: Their Development in the ABA House of
Delegates, Center for Professional Responsibility, American Bar Association (1987).
ABA/BNA Lawyers' Manual On Professional Conduct, American Bar Association and Bureau of National Affairs
(1989).
Professional Responsibility Notes, Client Confidentiality, The Army Lawyer, Jan. 1992, at 44.
Eveland, Professional Responsibility Opinion 90-1 (re: legal assistance attorney's improper sexual comments to, and
conduct toward, domestic relations client), The Army Lawyer, Jan. 1993, at 57.
Eveland, Professional Responsibility Opinion 89-1 (re: threatening criminal sanctions to gain an advantage in a civil
matter), The Army Lawyer, Mar. 1993, at 37.
Eveland, Professional Responsibility Opinion 93-1 (re: plagiarism and copyright violations by legal assistance
attorney), The Army Lawyer, Jun. 1993, at 55.
Eveland, Professional Responsibility Opinion 92-6 (re: legal assistance attorney's improper conduct towards
domestic relations client), The Army Lawyer, Jul. 1993, at 49.
Fegley, ABA Formal Opinion 92-364: Sexual Relations With Clients, The Army Lawyer, Aug. 1993, at 49.
Eveland, Case Summaries: Army Rule 1.1 (re: legal assistance attorney provided incompetent advice when he
advised client about effect of VA foreclosure notice), The Army Lawyer, Sep. 1993, at 45.
Fegley, Bar Ethics Opinions: Confidentiality of Information (inadvertent disclosure of confidential materials using FAX
and E-Mail transmittals), The Army Lawyer, Oct. 1993, at 47.
--------
DEPLOYMENT - LEGAL ASSISTANCE CONSIDERATIONS
TJAGSA Publication JA 422, Operational Law Handbook (Jun. 1994).
TJAGSA Publication JA 260, Soldiers' and Sailors' Civil Relief Act Guide (Apr. 94).
TJAGSA Publication JA 272, Deployment Guide (Feb. 94).
DOD Directive No. 5100.77, The DoD Law of War Program (10 Jul. 79).
DA PAM 360-525, Family Assistance Handbook for Mobilization (15 Jan. 1984).
AR 600-8-101, Personnel Processing (In- and Out- and Mobilization Processing), 26 Feb. 1993.
AR 600-20, Interim Ch. 102 (1 Apr. 92), para 5-5 (Family Care Plans).
S. 843 (formerly S. 995), amending Veterans' Reemployment Rights Law (passed by Senate Nov. 8, 1993; returned to
House).
Veterans' Reemployment Rights Handbook, U.S. Dept. of Labor (available through U.S. Government Printing Office,
Washington, D.C. 20402.
National Committee For Employer Support of the Guard & Reserve, Suite 414, 1111 20th St., NW, Washington, D.C.
20036-3407 (1-800-336-4590).
31 U.S.C. ∋1342; AR 37-1, para. 7-6a(4) (Limitations on Acceptance of Voluntary Services).
50 U.S.C. Appendix, as amended, ∋∋ 500-548; 560-591 (1993) (Soldiers' and Sailors' Civil Relief Act).
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FORSCOM/ARNG Regulation 350-2, Reserve Component Training (15 May 1989).
FORSCOM Regulation 500-3-1, FORSCOM Mobilization and Deployment Planning System (FORMDEPS), Vol 1,
FORSCOM Mobilization Plan (FMP) (1 August 1991).
FORSCOM Regulation 500-3-3, FORSCOM Mobilization and Deployment Planning System (FORMDEPS), VOL III,
Reserve Component Unit Commander's Handbook (RCUCH) (1 March 1993).
FORSCOM Regulation 500-3-5, FORSCOM Mobilization and Deployment Planning System (FORMDEPS), Vol V,
STARC/MUSARC Commander's Handbook (1 September 1991).
--------
SOLDIERS' AND SAILORS' CIVIL RELIEF ACT
50 United States Code Appendix ∋∋ 500-548, 560-593 (1993).
SSCRA Amendments of 1991, Pub. L. No. 102-12 (18 March 1991).
TJAGSA Publication JA 260, Soldiers' and Sailors' Civil Relief Act Guide (Apr. 94).
LSA R.S. 29: 401-425, Louisiana Military Service Relief Act (West 1993).
Reinold, Use of the Soldiers' and Sailors' Civil Relief Act to Ensure Court Participation - Where's the Relief?, The
Army Lawyer, Jun. 1986, at 17.
Legal Assistance Note, Soldiers' and Sailors' Civil Relief Act Protection for Active and Reserve Component Personnel,
The Army Lawyer, Oct. 1990, at 49.
Legal Assistance Note, Soldiers' and Sailors' Civil Relief Act: A Look at the Credit Industry's Approach to the Six
Percent Limit on Interest Rates, The Army Lawyer, Nov. 1990, at 49.
SSCRA Notes, Applicability of SSCRA to Automobile Leases, The Army Lawyer, Dec. 1990, at 44.
Pottorff, Contemporary Applications of the Soldiers' and Sailors' Civil Relief Act, 132 Mil. L. Rev. 115 (1991).
Huckabee, Operations Desert Shield and Desert Storm: Resurrection of the Soldiers' and Sailors' Civil Relief Act, 132
Mil. L. Rev. 141 (1991).
Bradshaw, Byczek, and Buser, Soldiers' Tort Claims and the Soldier's and Sailors' Civil Relief Act, The Army Lawyer,
Jul. 1991, at 40.
Kay, Material Effect: Shifting the Burden of Proof for Greater Procedural Relief Under the Soldiers' and Sailors' Civil
Relief Act, 27 Tulsa L.J. 45 (Fall 1991).
Veldhuyzen and Wright, Domicile of Military Personnel for Voting and Taxation, The Army Lawyer, Sep. 1992, at 15.
Baron, The Staying Power of the Soldiers' and Sailors' Civil Relief Act, 32 Santa Clara L. Rev. 137 (1992).
McKonough, Huckabee, Gentile, Crisis of the Soldiers' and Sailors' Civil Relief Act: A Call for the Ghost of Major
(Professor) John Wigmore, 43 Mercer L. Rev. 667 (Winter 1992).
State Domicile Note, Does a Wife Automatically Assume the Domicile of Her Husband?, The Army Lawyer, Jan. 1993
at 41.
Legal Assistance Note, Soldiers' and Sailors' Civil Relief Act Update: Section 525 Means What It Says, The Army
Lawyer, Jun. 1993, at 50.
Legal Assistance Note, Does the SSCRA Toll Statutes of Limitations for All Proceedings?, The Army Lawyer, Oct.
1993, at 35.
Legal Assistance Note, Using the Soldiers' and Sailors' Civil Relief Act to Your Clients' Advantage, The Army Lawyer,
Dec. 1993, at 34.
Legal Assistance Note, Car Repair Rip-Offs: An Analytical Approach, The Army Lawyer, Apr. 1994, at 45.
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FAMILY LAW
(Including Child Support Enforcement)
AR 608-99, Family Support, Child Custody, and Paternity.
AR 608-61, Application for Authorization to Marry Outside the United States.
TJAGSA Publication JA 263, Legal Assistance Family Law Guide (Jun. 93).
TJAGSA Publication JA 274, Uniformed Services Former Spouses' Protection Act -Outline and References (Nov 92).
Essentials for Attorneys in Child Support Enforcement, Office of Child Support Enforcement (prepared by the National
Institute for Child Support Enforcement) - * to order, contact: National Institute for Child Support Enforcement, 5530
Wisconsin Avenue, Suite 1600, Chevy Chase, MD 20815 (301) 656-4092.
Paternity Establishment, Office of Child Support Enforcement (prepared by the National Institute for Child Support
Enforcement) - to order, see above *.
Interstate Child Support Enforcement Laws Digest, Office of Child Support Enforcement. (2 volume set).
Child Support Guidelines: A Compendium (published by National Center for State Courts).
Legal Assistance Deskbook, Support Enforcement (May 1993), Deputy Assistant Judge Advocate General (Legal
Assistance), Office of the Judge Advocate General, 200 Stovall Street, Alexandria, VA 22332-2400 (703-325-7928).

19-14
Quick Guide to Uniformed Services Former Spouses' Protection Act, (26 May 1993), Deputy Assistant Judge
Advocate General (Legal Assistance), Office of the Judge Advocate General, 200 Stovall Street, Alexandria, VA
22332-2400 (703-325-7928).
Arquilla, Family Support, Child Custody, and Paternity, 112 Mil. L. Rev. 17 (1986). Arquilla, Changes in Army Policy
on Financial Nonsupport and Parental Kidnapping, The Army Lawyer, Jun. 1987, at 18. Arquilla, Crime in the Home,
The Army Lawyer, Apr. 1988, at 3.
Hemingway, Foreign Divorces and the Military: Traversing the "You're No Longer Mine" Field, The Army Lawyer,
Mar. 1987, at 17.
Guilford, Guam Divorces: Fast, Easy, and Dangerous, The Army Lawyer, Mar. 1990, at 20.
Malinowski, Federal Enclaves and Local Law: Carving Out a Domestic Violence Exception to Exclusive Legislative
Jurisdiction, 100 Yale L. J. 189 (Oct. 1990).
Family Law Note, Can the Use of the Bankruptcy Code Avoid a Court-Ordered Division of Military Retired Pay?, The
Army Lawyer, Dec. 1990, at 45.
Third Legal Assistance Symposium, 132 Mil. L. Rev. (1991).
Howlett, Illegitimate Children and Military Benefits
Guilford, The Labyrinth: Current Issues Under the Uniformed Services Former Spouses' Protection Act
Connor, Resolving Child Support Issues Beyond the Scope of AR 608-99
Sullivan, Proving Paternity by Presumption and Preclusion
Family Law Note, Arguing a Court's Lack of Jurisdiction to Defeat a Former Spouse's Claim to a Soldier's Military
Pension, The Army Lawyer, Mar. 1991, at 55.
Hammerstrom, Equitable Distribution of Military Pensions? Re-Thinking the Uniformed Services Former Spouses'
Protection Act, 9 Law & Ineq. 315 (Mar. 1991).
Family Law Note, Advising Soldiers on Paternity Allegations, The Army Lawyer, Aug. 1991, at 44.
Family Law Note, Using Garnishment to Collect Alimony and Child Support, The Army Lawyer, Dec. 1991, at 48.
Driscoll, Mansell v. Mansell: How It Changed the Definition of Marital Property for the Military Spouse, 30 J. Fam. L.
97 (1991/1992).
Sullivan, Domestic Counseling and Legal Assistance: A Systematic Approach, The Army Lawyer, Nov. 1992, at 11.
Gilbert, A Family Law Practitioner's Road Map to the Uniformed Services Former Spouses' Protection Act, 32 Santa
Clara L. Rev. 61 (1992).
Family Law Note, Using the AFDC Program as a Supplemental Means of Child Support, The Army Lawyer, Apr. 1992,
at 70.
Family Law Note, Divorced Retirees Get Relief from Reopened Pre-McCarty Divorce Decrees, The Army Lawyer, Oct.
1992, at 35.
Walker, Family Law in the Fifty States: An Overview, 25 Fam. L. Q. 417 (Winter 1992).
Polchek, Recent Property Settlement Issues for Legal Assistance Attorneys, The Army Lawyer, Dec. 1992, at 4.
Family Law Note, Using the Uniformed Services Former Spouses' Protection Act to Collect Child Support, The Army
Lawyer, Jan. 1993, at 45.
Family Law Note, The Pitfalls of Using the Visa Waiver Program to Bring Alien Spouses into the United States, The
Army Lawyer, Jan. 1993, at 47.
Family Law Note, Support of Stepchildren, The Army Lawyer, Mar. 1993, at 33.
Sullivan, Twenty Questions (and Answers) on Military Pension Division, 13 No. 4 FairShare 14 (Apr. 1993).
Family Law Note, Separation Agreements - Does the Agreement Have a Life After Divorce?, The Army Lawyer, Apr.
1993 at 22.
Murray, Note: One Child's Odyssey Through the Uniform Child Custody Jurisdiction and Parental Kidnapping
Prevention Acts, 1993 Wis. L. Rev. 589.
Family Law Note, Professional Responsibility Considerations, The Army Lawyer, Sep. 1993, at 36.
Family Law Note, Eligibility for Legal Assistance, The Army Lawyer, Oct. 1993, at 37.
National Developments: Required State Laws Relating to Medical Child Support, 13 No. 11 Fair$hare 20, Nov. 1993.
Family Law Note, Uniformed Services Former Spouses' Protection Act Update, The Army Lawyer, Jan. 1994, at 28.
Family Law Note, Divorce Jurisdiction, The Army Lawyer, May 1994, at 57.
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CONSUMER LAW
AR 600-4, Remission or Cancellation of Indebtedness.
AR 600-15, Indebtedness of Military Personnel (being rewritten to include Involuntary Allotments of Military Pay).
TJAGSA Publication JA 265, Legal Assistance Consumer Law Guide (Sep 93).
TJAGSA Publication JA 261, Legal Assistance Real Property Guide (Mar 93).
TJAGSA Publication JA 276, Legal Assistance Preventive Law Series (Dec 92).

19-15
Federal Trade Commission Headquarters, 6th & Pennsylvania Ave., N.W., Washington, D.C. 20580 (202) 326-2222.
Federal Trade Commission, Bureau of Consumer Protection, Office of Consumer & Business Education, (202) 326-
3650.
Public Reference, Federal Trade Commission, Washington, D.C. 20580 (202) 326-2222. (for FTC publications)
Installment Credit Guide - published by Commerce Clearing House, 4025 West Peterson Ave., Chicago, IL 60646-
6085.
National Consumer Law Center Reports - National Consumer Law Center, Inc., 11 Beacon Street, Boston, MA 02108
(617) 523-8010.
Second Annual National Consumer Rights Litigation Conference (Making Consumer Rights Accessible), National
Consumer Law Center Conference, Oct. 2-4, 1993, Chicago, Ill. (To order, write NCLC, 11 Beacon Street, Boston,
MA 02108.
Consumer's Resource Handbook (published annually by the United States Office of Consumer Affairs) - available by
writing: Handbook, Consumer Information Center, Pueblo, CO 81009.
Kinnard, The Magnuson-Moss Litigation Manual: Auto Warranty Cases - "Lemon Litigation" - produced by Center for
Auto Safety, 1223 Dupont Circle Building, Washington, D.C. 20036 -to order, contact: Consumer Press, 800 18th
Street, NW, Suite 403, Washington, D.C. 20006 (202) 223-8463.
Alvarey, The Case of the Unpaid Debt: An Overview of the Fair Debt Collection Practices Act, The Army Lawyer,
Feb. 1982, at 1.
Jones, Common Sense and Article 9: A Uniform Approach to Automobile Repossessions, Dec. 1988, at 8.
Pottorff, The Government Right to Offset Under the Debt Collection Act of 1982: A Primer for the Legal Assistance
Attorney, The Army Lawyer, Sep. 1989, at 3.
Craft, State Consumer Protection Enforcement: Recent Trends and Developments, 59 Antitrust L.J. 997 (1990/1991).
Feldman, The Specious Open-End Credit Plan--A Discussion of the Law Leading up to FTC v. Traditional Industries,
45 Bus. Law. 1989 (June 1990).
Pointer, The Electronic Fund Transfer Act: An Effective Shield and a Sharp Sword!, The Army Lawyer, Aug. 1990, at
3.
Gnocchi, Debt Collections on Behalf of Nonappropriated Fund Instrumentalities, The Army Lawyer, Apr. 1991, at 3.
Noonan, Buffon and LeFevre, Federal Trade Commission Developments in Consumer Financial Services, 46 Bus.
Law. 1093 (May 1991).
Ingold, The Department of Veterans' Affairs Home Loan Guaranty Program: Friend or Foe?, 132 Mil. L. Rev. 231
(Spring 1991).
Tufo, How Federal and State Governments Can Share Consumer Protection Power, 43 Admin. L. Rev. 495 (Summer
1991).
Ward, Collection of Debts and Overpayments from Claimants Using IRS Tax Offset Procedures, The Army Lawyer,
Sep. 1991, at 41.
Burke and Cannel, Leases of Personal Property: A Project for Consumer Protection, 28 Harv. J. on Legis. 115
(Winter 1991).
Consumer Law Note, Direct Deposit Military Pay--Prime Target for Attachment by Judgment Creditors, The Army
Lawyer, Sep. 1992, at 35.
Wuetcher, Garnishment Equalization Act: Leveling the Playing Field or Upsetting a Delicate Balance?, The Army
Lawyer, Nov. 1992, at 3.
Huet, (Eleventh Annual Symposium on International Legal Practice) Recent Developments in the Field of Consumer
Protection in the European Community, 16 Hastings Int'l. & Comp. L. Rev. 583, Symposium Issue, 1993.
Gsteiger, Representing a Veteran after Default of an Assumed VA-Guaranteed Home Loan, The Army Lawyer, Jan.
1993, at 3.
Landlord-Tenant Note, Release from Military Service Justifies Early Lease Termination in Maryland, The Army
Lawyer, Mar. 1993, at 30.
Gardner and Sheldon, See Dick and Jan Sue: A Primer on State Consumer Protection Laws, ALI-ABA Course of
Study (Mar. 4, 1993).
Brockmeyer, Piper, and Marbury, Federal and State Warranty Law, C801 ALI-ABA 337, Mar. 4, 1993.
Consumer Law Update, The Garnishment Equalization Act is Alive and Well, The Army Lawyer, Apr. 1993, at 22.
Jacquez and Friend, The Fair Credit Reporting Act: Is It Fair for Consumers? 5 Loy. Cons. L. Rep. 81 (Spring 1993).
Griffith, Truth in Lending - Rescission and Disclosure Issues in Closed-End Credit, 17 Nova L. Rev. 1253, Spring
1993.

19-16
Consumer Law Notes, Check Cashing Companies - Are They Lending Money? and Fair Debt Collection Practices,
The Army Lawyer, Jun. 1993, at 46.
Consumer Law Note, Legal Assistance Attorneys Are Not Debt Collectors, The Army Lawyer, Jul. 1993, at 45.
(Landlord-Tenant) Tempesta, Are Military Clauses Necessary or Is State Law Good Enough?, The Army Lawyer, Jul.
1993, at 52.
Green, Preempting Justice Through Binding Arbitration of Future Disputes: Mere Adhesion Contracts or a Trap for
the Unwary Consumer?, 5 Loy. Cons. L. Rep., at 112, Summer, 1993.
Clark, Contracts - Morris v. Mack's Used Cars: Another Weapon for the Consumer Protection Arsenal, 23 Mem. St. U.
L. Rev. 871, Summer 1993.
Consumer Law Note, Garnishment of Military Pay- What's Going On?, The Army Lawyer, Sep. 1993, at 39.
Hatch Act Reform Amendments, Pub. L. 103-94, 107 Stat. 1001 (Oct. 6, 1993) (Section 9: provisions to treat federal
pay the same as non-federal pay for garnishment purposes).
Brown, Florida Legislature Broadens the Scope of the "Little FTC Act," Fla. Bar J., Oct. 1993, at 50.
Consumer Reporting Reform Act of 1993. S. 783, introduced 4/7/93; hearings completed by Senate Banking,
Housing & Urban Affairs Committee on 5/27/93; submitted to Senate 12/9/93 (Rept. No. 103-209) [see 140 Cong.
Rec. S54-02 (Jan. 25, 1994)].
Legal Assistance Note, No Automatic Deferment for Federally Insured Student Loans, The Army Lawyer, Mar. 1994,
at 58.
Legal Assistance Note, Car Repair Rip-Offs: An Analytical Approach, The Army Lawyer, Apr. 1994, at 45.
Banes, Legal Assistance as a Champion for the Soldier-Consumer, The Army Lawyer, May 1994 at 26.
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ESTATE PLANNING
(Including Estate and Gift Taxation, Wills, and SBP)
AR 600-8-7, Retirement Services Program (13 April 1992).
AR 608-2, Servicemen's Group Life Insurance (SGLI) - Veteran's Group Life Insurance (VGLI) (15 Oct 1989).
AR 930-4, Army Emergency Relief - Authorization, Organization, Operations, and Procedures (Apr 85; C1 Nov 86).
DA Pamphlet 600-5, Handbook on Retirement Services.
DA Pamphlet 608-4, A Guide for the Survivors of Deceased Army Members.
DA Pamphlet 608-33, Casualty Assistance Handbook.
DA Pamphlet 360-539F, SBP Made Easy (prepared by The Retired Officers Association, 201 North Washington
Street, Alexandria, VA 22314).
VA Pamphlet 27-82-2, Revised September 1989, A Summary of Department of Veterans Affairs Benefits - Department
of Veterans Affairs, Washington, D.C. 20420.
TJAGSA Publication JA 262, Legal Assistance Wills Guide (May 93).
TJAGSA Publication JA 272, Legal Assistance Deployment Guide (Feb 94).
Memorandum, DAJA-LA, Office of The Judge Advocate General, U.S. Army, subject: JAGC Automation Standards -
Policy Memorandum 89-3, 21 June 1989.
Beneficiary Designations for Servicemen's Group Life Insurance (SGLI), (May 1994), Deputy Assistant Judge
Advocate General (Legal Assistance), Office of the Judge Advocate General, 200 Stovall Street, Alexandria, VA
22332-2400 (703-325-7928).
Dougall, Maximizing Survivor Benefits for Family Members, The Army Lawyer, Jan. 1990, at 12.
Hanchey, Louisiana Will and Estate Law: Usufructs, Tutors, and Other Shadowy Creatures of the Civil Code, The
Army Lawyer, Dec. 1991, at 42.
Gilbert, The Importance of Unique Military Survivor Benefits in Estate Planning: A Discussion of DIC and SBP, 39
Fed. B. News & J. 158 (Feb. 1992).
Harker, Choosing a Trustee: The Case for the Corporate Fiduciary, Prob. & Prop., May/June 1994, at 44.
Carroll and Carroll, Avoiding the Will Contest, Prob. & Prop., May/June 1994, at 61.
Wills and Estates Note, Servicemen's Group Life Insurance, The Army Lawyer, Jan. 1993, at 43.
Wills and Estates Note, Living Wills, The Army Lawyer, Jan. 1993, at 44.
Army Lawyer Note, Survivor Benefit Plan, The Army Lawyer, Mar. 1993, at 29.
Survivor Benefits Note, Gender Considerations, The Army Lawyer, Apr. 1993, at 20.
Estate Planning Note, Uniform Statutory Will Act, The Army Lawyer, Jul. 1993, at 46.
Legal Assistance Note, Survivor Benefit Plan, The Army Lawyer, Mar. 1993, at 29.
--------
TAX
(Including Federal Income Taxation and State Taxation)
50 U.S.C. Appendix ∋ 574.
TJAGSA Publication JA 275, Model Income Tax Assistance Guide.
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TJAGSA Publication JA 269, Federal Tax Information Series.
IRS Publication 17 (annual).
IRS Tax Information Publications, Volumes 1-4.
Prentice Hall or CCH "Master Tax Guide."
Internal Revenue Code and Regulations (Title 26 U. S. Code).
U.S. Air Force All States Income Tax Guide (annual).
Tax Information Memoranda [published throughout the year by Deputy Assistant Judge Advocate General (Legal
Assistance)], Office of the Judge Advocate General, 200 Stovall Street, Alexandria, VA 22332-2400 (703-325-7928).
(See also JAGNET BBS).
IRS Volunteer Income Tax Assistor's (VITA) Materials:
IRS Pub 1414, Volunteer Assistor's References
IRS Pub 1155, Volunteer Assistor's Guide - Instructor Guide
IRS Pub 724, Help Other People with Their Tax Returns
IRS Pub 678, Volunteer Assistor's Guide
IRS Pub 678-M, Volunteer Assistor's Guide - Military Module
IRS Pub 678-I, Volunteer Assistor's Guide - International
IRS Pub 678-PR, Volunteer Assistor's Guide - Puerto Rico
IRS Pub 1045, Information for Tax Practitioners.
IRS Pub 1514, IRS Deskbook.
Smith, Running an Effective Tax Assistance Program, The Army Lawyer, Sep. 1991, at 14.
Letter, DAJA-LA, Office of The Judge Advocate General, U.S. Army, subject: Tax Status of Personnel Who Die as a
Result of Terroristic or Military Action Against the U.S., 15 May 1985 (For the text of a letter of understanding
regarding this subject, see The Army Lawyer, Aug. 1985, at 43.)
Tax Note, When is Alimony Not Alimony But Child Support?, The Army Lawyer, Mar. 1993 at 29.
Tax Note, Tax Consequences of a Payment Under the Homeowners' Assistance Program, The Army Lawyer, Apr.
1993 at 21.
Tax Note, Failing To File a Timely Return: Holder v. Commissioner Examines the Financial Liability, The Army
Lawyer, Jul. 1993 at 47.
Tax Notes, Arizona Income Tax Withholding, Casualty Insurance Proceeds - Taxable or Nontaxable?, and Deducting
Personal Casualty Losses, The Army Lawyer, Sep. 1993 at 37-38.
Tax Notes, Electronic Filing of Federal Income Tax Returns and The Armed Forces Tax Council, The Army Lawyer,
Oct. 1993 at 36.
--------
POWERS OF ATTORNEY
AR 27-55, Notarial Services (21 Jan. 1994).
National Defense Authorization Act for FY 94 - ' 574: Recognition by States of Military Powers of Attorneys (to be
codified at 10 U.S.C. ∋ 1044b).
TJAGSA Publication JA 272, Legal Assistance Deployment Guide (Feb 94).
TJAGSA Publication JA 268, Legal Assistance Notarial Guide (Apr. 94).
LA Law Power of Attorney Program for WordPerfect 5.1 for DOS, Ver. 2.0 (12/93), Deputy Assistant Judge Advocate
General (Legal Assistance), Office of the Judge Advocate General, 200 Stovall Street, Alexandria, VA 22332-2400
(703-325-7928).
10 U.S.C. ∋∋ 936 and 1044.
DAJA-LA msg 031400Z May 93: Use of a Power of Attorney in Financial Transactions Involving U.S. Treasury
Checks and The Department of Defense Finance and Accounting Service (DFAS).
Schmitt, Hatfield, The Durable Power of Attorney: Applications and Limitations, 132 Mil. L. Rev. 203 (Spring 1991).
--------
IMMIGRATION AND NATURALIZATION
AR 608-3, Naturalization and Citizenship of Military Personnel and Dependents.
AR 600-290, Passports and Visas.
Immigration and Nationality Act (codified as amended in title 8, U.S. Code).
8 C.F.R. Chapter 1 (INS regulations).
22 C.F.R. Parts. 41 and 42 (State Department regulations on issuing visas).
Guide to Immigration Benefits, M-210, Immigration and Naturalization Service (published by the U.S. Government
Printing Office).
Hancock, Legal Assistance and the 1986 Amendments to the Immigration, Nationality, and Citizenship Law, The Army
Lawyer, Aug. 1987, at 11.
Bettwy, Assisting Soldiers in Immigration Matters, The Army Lawyer, Apr. 1992, at 3.
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Murphy, Immigration and Nationality Law for the Military Lawyer, 36 Air Force L. Rev. 101 (1992).
Sandulescu, The Pitfalls of Using the Visa Waiver Program to Bring Alien Spouses into the United States, The Army
Lawyer, Jan. 1993, at 47.
Kusky, Immigration and The Foreign Spouse, The Army Lawyer, Dec. 1993, at 3.
--------
ALTERNATIVE DISPUTE RESOLUTION
Letter, DAJA-ZA, Office of The Judge Advocate General, U.S. Army, subject: Alternative Disputes Resolution, 8 May
1987, reprinted in The Army Lawyer, July 1987, at 3.
United States Office of Consumer Affairs, Consumer's Resource Handbook (published annually). Single free copies
may be obtained by writing to: Handbook, Consumer Information Center, Pueblo, CO 81009.
BNA's Alternative Dispute Resolution Report. To order the report, contact: The Bureau of National Affairs, Inc.,
Circulation Department, P.O. Box 6036, Rockville, Maryland 20850-9990, (301) 258-1033.
J. Folbert & A. Taylor, Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation (1984).
Missouri Journal of Dispute Resolution.
Administrative Conference of the U.S., Sourcebook: Federal Agency Use of Alternative Means of Dispute Resolution
(Office of the Chairman, 1987). Copies may be ordered from the Superintendent of Documents, U.S. Government
Printing Office, (202) 783-3238, stock number 052-003-01070-4, cost $31.00.
Branton and Lovett, Alternative Dispute Resolution.
Cooper and Meyerson, A Drafter's Guide to Alternative
Dispute Resolution.
Fisher and Dry, Getting to Yes.
Fogelberg and Taylor, Mediation.
Good, The Human Factor in Mediation.
Green, Dispute Resolution.
Johnson and Johnson, Joining Together.
Moore, The Mediation Process.
Rogers and McEwen, Mediation, Law Policy and Practice.
5 U.S.C. ∋ 571, et seq., Alternative Means of DisputeResolution in the Administrative Process.
9 U.S.C. ∋ 1, et seq., Federal Arbitration Act.
Society of Professionals in Dispute Resolution (SPIDR), National Office, Suite 909, 1730 Rhode Island Avenue, N.W.
Washington, D.C. 20036, (202) 833-2188.
ABA Special Committee on Dispute Resolution, 1800 M Street N.W., Suite 2005, Washington, D.C. 20036, (202)
331-2258.
American Arbitration Association:140 West 51st Street, New York, New York 10020, (212) 484-3237 445 Bush
Street, 5th Floor, San Francisco, California 94108, (415) 981-3901.
National Institute for Dispute Resolution, 1901 L Street N.W., Suite 600, Washington, D.C. 20026, (202) 466-4764.
------
TJAGSA VIDEOTAPE BULLETIN
(Legal Assistance Extract)
This bulletin contains a listing of educational television programs maintained in the Visual Information Library at The
Judge Advocate General's School (TJAGSA). The listing consists of video recordings of actual classroom instruction
presented at the School and video productions. The library is set up to support the continuing legal education
mission of the School. Tapes are intended for use by judge advocates. The programs are available through a tape
dubbing service (3/4" and 1/2" VHS only). Blank tapes should be mailed to: The Judge Advocate General's School,
U.S. Army, ATTN: JAGS-IM-V, Charlottesville, Virginia 22903-1781. Tapes must be requested by title and number.
Below are listed some tapes that may help train new LAAs (A complete bulletin of available tapes may be ordered
through TJAGSA):
• JA-94-0036A"Soldiers' and Sailors' Civil Relief Act (SSCRA) Parts 1 & 2" (Hostetter, Mar 94).
• JA-94-0038A"Trends in Child Custody, Parts 1 & 2" (Wadlington, Mar 94).
• JA-94-0040A"Veterans' Reemployment Rights Law, Parts 1 & 2" (Lee/Smith, Mar 94).
• JA-94-0041A"Introduction to the Use of Trusts in Estate Planning" (Mulliken, Mar 94).
• JA-94-0039A"Trust Drafting, Parts 1 & 2 (Mulliken, Mar 94).
• JA-92-0002A"Will Drafting, Parts 1 & 2 (Flood, Oct 91).
• JA-92-0004A"Bankruptcy, Parts 1 & 2 (Scott, Oct 92).
• JA-92-0005A"Immigration and Naturalization, Parts 1 & 2 (Britt, Oct 92).
• JA-93-0032A"Child Custody and Family Support Enforcement", Parts I, II (Connor, Mar 93).
• JA-93-0033A"Uniformed Services Former Spouses' Protection Act", Parts I, II (Connor, Mar 93).
• JA-93-0034A"Separation Agreements", Parts I, II (Connor, Mar 93).
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 CHAPTER 20
HUMAN RIGHTS

NOTE: Although this chapter remains the “Human Rights Chapter,” Human Rights as it impacts
upon overseas operations is discussed in great detail at chapter 13 of this handbook. Information
from chapter should be read in conjunction with the four tiered approach of chapter 13.

"Human rights law" is particularly significant in contemporary operations other than war. Some
aspects of "human rights law" are already familiar to Judge Advocates (Common Article 3 of the Geneva
Conventions, for example), but Judge Advocates are increasingly required to have more specific
cognizance of the principles of the discipline, particularly in the area of training foreign or multinational
forces. (Judge Advocates in the Special Operations community routinely train Mobile Training Team
soldiers on human rights, specifically the minimum standards of Common Article 3 of the Geneva
Conventions, as required by AR 12-15, Joint Security Assistance Training, para. 13-3. Soldiers are
instructed to recognize human rights violations using the standard of Common Article 3, to avoid aiding in
any violations perpetrated by the Host Nation, and to report violations to their chain of command, proper in-
1
country U.S. authorities [Embassy], or to a Judge Advocate.)

Reprinted at this Tab is the Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc.
A/810, at 71 (1948), the most significant statement of human rights law, some portions of which are
2
regarded as customary international law . Following the Declaration are two products of Judge Advocates
3
involved in human rights law training. The first was produced as part of a SOUTHCOM initiative to assist
Peru institutionalize human rights programs of instruction. The second was produced to train CARICOM
soldiers participating in the Multinational Force for the Fall 1994 Haiti operation.

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

1
The generalized requirement to report "human rights violations" does not obviate a soldier's duty to obey lawful orders and perform
lawfully assigned duties at the requisite location. See United States v. Rockwood, infra p. 13-4, n. 26.

2
See infra p. 13-8, this handbook, particularly footnotes 46 &47.
3
See infra p. 13-7, this handbook, for other SOUTHCOM human rights initiatives.

20-1
 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.

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.

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 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.

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.

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 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.

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.

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 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.
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.

PERU INITIATIVE:
TEN COMMANDMENTS OF HUMAN RIGHTS FOR SOLDIERS

THOU SHALL:

1. HONOR THE SPIRIT OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS.

2. GIVE AND OBEY ONLY LAWFUL ORDERS.
3. REPORT CRIMES AND HUMAN RIGHTS VIOLATIONS TO PROPER AUTHORITIES.
4. RESPECT INDIVIDUAL INTEGRITY AND HUMAN DIGNITY.
5. ABIDE BY THE MILITARY CODE OF HONOR, BE CHIVALROUS, AND TELL THE WHOLE TRUTH
IN HUMAN RIGHTS INVESTIGATIONS.
6. SPREAD THE WORD: ORDER DEPENDS ON RESPECT FOR HUMAN RIGHTS.

THOU SHALL NOT COMMIT, NOR TOLERATE:

7. MURDER, RAPE, TORTURE, OR THE EXCESSIVE USE OF FORCE.

8. DISAPPEARANCES.
9. THE UNNECESSARY DESTRUCTION OF PROPERTY.
10. EXTRAJUDICIAL PUNISHMENT.

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 CHAPTER 21
MILITARY SUPPORT TO CIVIL AUTHORITIES

I. REFERENCES.

A. 18 U.S.C. ∋1385, Posse Comitatus Act.

B. 42 U.S.C. ∋5121, et seq., as amended (the Stafford Act).
C. 44 CFR Part 206, Federal Emergency Management Agency.
D. DoD DIR. 3025.1, Military Support to Civil Authorities, 15 Jan 1993.
E. AR 500-60, Disaster Relief, 1 Aug 1981.
F. AFI 10-802, Air Force Assistance to Civil Authorities, 25 Feb 1994.
G. FM 100-19, Domestic Support Operations, Jul 1993.
H. NGB 500-1/ANGI 10-8101, 1 Feb 1996.
I. DOD Manual 3025.1M, Manual for Civil Emergencies, Jun 1994.
J. Domestic Disaster Assistance Primer, 1993.
K. DOD Directive 3025.15, Military Assistance to Civil Authorities, 18 Feb 1997.
L. AR 500-51, Support to Civilian Law Enforcement, 1 Aug 1983.

II. MILITARY SUPPORT TO CIVIL AUTHORITIES.

A. 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.

B. Five mechanisms which trigger involvement of Federal troops.

1. 42 U.S.C. ∋5170b(c). President's emergency 10-day authority to use DoD to

perform work "essential for the preservation of life and property." Done prior to any Presidential
declaration of "emergency" or "major disaster." Emergency work includes clearing and removing debris
and wreckage and the temporary restoration of essential public facilities and services.

2. 42 U.S.C. ∋5170. Presidential declaration of a "major disaster."

(a) Must be at the request of the Governor, after an appropriate finding that
the incident is of such severity and magnitude 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 State's 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. 42 U.S.C. ∋5191(a). Presidential declaration of an "emergency."

(a) Must be at the request of the Governor, after an appropriate finding that
the incident is of such severity and magnitude it is beyond the capabilities of the State and that Federal
assistance is required.

(b) As a prerequisite, the Governor must --

21-1
 (1) Respond under State law (e.g., activate the State National Guard
under Title 32).
(2) Execute the State's 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. 42 U.S.C. ∋5191(b). Certain Emergencies involving Federal primary responsibility.

(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. DOD Directive 3025.1: Immediate Response Authority.

(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 and 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 Directorate 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 the DOMS Manual (DOD Manual
3025.1M), Immediate Response Authority is “time sensitive” and 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, however, the assistance
should not be delayed or denied because of the inability or unwillingness of the requester to make a
reimbursement commitment.

C. The importance of FEMA.

1. Designated by EO 12656 as the lead Federal agency for all domestic disaster
relief.

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 2. Federal Response Plan. Basically a memorandum of understanding between all
the federal agencies which provide disaster relief and FEMA. The Federal Response Plan establishes
twelve Emergency Support Functions (ESF) and assigns primary and supporting agency responsibility for
each ESF.

(a) DoD is primary agency for -- ESF 3, Public Works and Engineering
(through the Army Corps of Engineers).

(b) DoD is supporting agency for all other ESFs.

1 - Transportation.
2 - Communications.
4 - Firefighting.
5 - Information and Planning.
6 - Mass Care.
7 - Resource Support.
8 - Health and Medical Services.
9 - Urban Search and Rescue
10 - Hazardous Materials.
11 - Food.
12 - 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.

Most States have an additional 3 (for a total of 15) ESP’s.

13 - Law Enforcement
14 - Donations/Volunteers
15 - Recovery

3. Fiscal considerations.

(a) Federal agencies are authorized reimbursement for their expenses

incurred during disaster relief operations from those monies either set aside or specially
appropriated for a particular disaster (42 U.S.C. ∋5147).

(b) FEMA, under its implementing regulations (44 CFR Part 206), is the sole
authority that decides whether or not reimbursement is forthcoming. Always route all requests for
assistance through FEMA, this will preclude argument at a later time as to whether the particular
mission was valid and reimbursement is forthcoming. All requests for DoD assistance should be
routed in either one of two manners --

(1) 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.

(2) 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.

D. Types of support authorized under the Stafford Act.

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 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.

(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)).

E. Restrictions on the provision of support.

1. Posse Comitatus Act, 18 U.S.C. ∋1385.

"Whoever, except in cases and under circumstances expressly authorized by the Constitution or
Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or
otherwise to execute the laws shall be fined under this title or imprisoned not more than two years,
or both."

(a) The Stafford Act is not a statutory exception to the Posse Comitatus
Act akin to 10 U.S.C. ∋∋331-333 (Civil Disturbance and Insurrection statutes). Thus, military personnel
deployed on a disaster relief mission do not have a law enforcement role as they do in civil disturbance
operations. Roving security patrols (as distinguished from humanitarian/medical roving patrols) and other
law enforcement activities, unless excepted through the military purpose doctrine, are not permitted.

(b) Applies to Army and Air Force troops in active federal service. Does not
apply to National Guardsmen performing duties under Title 32. Consequently, National Guardsmen and
civilian law enforcement personnel become the source of security active duty military personnel.

21-4
 (c) If, as a result of an emergency or major disaster, the situation decays to
a degree that Federal troops are required to maintain the peace, a separate declaration under 10 U.S.C.
∋334 must be issued by the President. This was the situation in the Virgin Islands in 1989, following
Hurricane Hugo.

2. All mission taskings 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 DOD 3025.1
immediate response authority, DoD has no authority to provide disaster relief independent from FEMA.

III. OPERATIONAL PROBLEMS.

A. Posse Comitatus Act (PCA) Problems.

1. 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.

2. 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. Frequently, looting and other
illegal activities may be occurring within a commander's 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 (i.e., the civilian
population and property therein). 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.

3. 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 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.

4. 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 material and personnel on site
which is military. As such, the security of LSCs is exclusively a local law enforcement function. Often this
function is performed by local law enforcement officials, locally deputized Federal Marshals, or National
Guardsmen on State status.

B. Rules for the Use of Force.

1. Unlike the GARDEN PLOT stand-alone Rules of Engagement, there are no

preexisting stand-alone ROE/Rules for the Use of Force for domestic disaster relief operations. The JCS
Standing Rules of Engagement (SROE) expressly state that those rules (SROE) do not apply to disaster
relief operations. The SROE refer you to the use-of-force guidelines issued in the disaster relief mission's
execute order and subsequent orders. As a baseline, however, the soldier's inherent right of self-defense,
as stated in the SROE, would apply.

2. It should be noted that, given the nature of the operation, generally no additional
ROE/Rules for the Use of Force are necessary. Indeed, in most instances troops are entering a non-
hostile environment and are welcomed by the local populace with open arms.

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 3. In the absence of any mission specific rules for the use of force (RUF), security
and guard force personnel will operate under their normal RUF as stated in DOD Directive 5210. 56 and
AR 190-14.

C. Force Protection.

1. 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.

2. Due to the nature of disaster relief operations, G2/S2 personnel are often under-
employed and commanders may seek to have these personnel conduct liaison with LEA. This should be
avoided whenever possible. Executive Order 12333 and AR 381-10 allow LEA liaison activities, so long as
no special investigations/operations are conducted. However, AR 381-10 mandates that, in general, all
information obtained as a result of local LEA liaison efforts be destroyed upon mission completion. This
includes all forms of the information (e.g., written reports, hard drives, floppy disks, and notes). Failure to
destroy this information triggers reporting requirements (questionable activities) which involve both the
Army General Counsel and the Army Inspector General.

3. AR 380-13 and DOD Dir. 5200.27 allow G3/S3 personnel to perform the same
LEA liaison function for the purpose of force protection. Although AR 380-13 contains similar restrictions
against information retention after mission completion, there are no reporting requirements up through the
Army General Counsel and the Army Inspector General.

D. Election Support.

1. Federal law (18 U.S.C. ∋592) prohibits the positioning of troops "at any place
where a general or special election is held." Often, State and local officials desire to hold some form of
election while disaster relief operations are ongoing. 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.

2. 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.

E. Chaplain Activities. Chaplains routinely deploy with their units (usually at the battalion-
size or larger). Their role in disaster relief operations is not expanded by the Stafford Act or other
legislation. Chaplains must refrain from ministering to civilian disaster victims. This activity violates the
Establishment Clause's 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 strictly bifurcate their secular and religious functions.

F. Claims.

1. 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

21-6
provisions of this chapter." USARCS has interpreted this language as having no impact on how claims and
potential claims are processed.

2. 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.

G. Debris Removal.

1. The Stafford Act (42 U.S.C. ∋5173) authorizes Federal agencies to remove debris
from both public and private lands. 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.

2. As a policy matter, commanders may wish to restrict troops from removing debris
from private property in the absence of the property owner's 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.

H. Donated Property.

1. 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).

2. 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 transference of property contained within the depot to them. 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 government entity having dominion over it.

I. 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." However, while environmental impact statements are specifically waived, 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.

J. Medical Support to Relief Workers.

1. 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.

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 2. 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 are, 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.

K. 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.

L. Volunteers.

1. 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.

2. 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.

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 CHAPTER 22
MILITARY SUPPORT TO CIVILIAN LAW ENFORCEMENT AGENCIES

After a general discussion of the Posse Comitatus Act (PCA), this chapter will discuss counterdrug
support operations, civil disturbance operations, and DOD support in combating terrorism.

THE POSSE COMITATUS ACT AND THE MILITARY SUPPORT FOR CIVILIAN LAW ENFORCEMENT
AGENCIES STATUTES

a. The Posse Comitatus Act (18 USC ∋1385) prohibits use of Army and Air Force personnel to
execute the civil laws of the US, "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 Posse Comitatus
Act 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,
e.g. traffic direction (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. Note the categories of
personnel to whom the PCA does not apply: 1) a member of the Reserve component when not on active
duty, active duty for training, or inactive duty for training; 2) a member of the National Guard when not in
the Federal Service; 3) A civilian employee of the DOD, unless they are under the direct command and
control of a military officer; 4) a member of a Military Service when off duty, and in a private capacity (but
a member is not acting in a private capacity when the assistance is rendered under the direction or control
of DOD authorities. DOD Directive 5525.5, enclosure 4.

b. In 1981, in an effort to clearly stake out the boundaries of the Posse Comitatus Act, Congress
codified court interpretations in 10 USC ∋∋371-381, Military Support For Civilian Law Enforcement
Agencies. In so doing, commanders could feel confident that the support they provided to civilian law
enforcement, particularly in the counterdrug area, would be legal. While these statutes are frequently
called "exceptions" to the PCA, in fact, only one, 10 USC ∋374, expanded the court-set boundaries of the
PCA. That statute permitted military forces to operate and maintain equipment.
This statute was amended in 1996 to add ∋382, which addresses “Defense Against Weapons Of Mass
Destruction.” This, too expands the boundaries previously set by court decisions.

c. A brief description of the key statutes follows:

(1) Information, equipment, and facilities may be provided per 10 USC ∋371/2. Always
check approval authorities (AR 500-51, SECNAVINST 5820.7B, AFI 10-801). The Defense Against
Weapons of Mass Destruction Act of 1996 ∋382(b)(1) amended Title 10 to say: “[t]he requirement for a
determination that an item is not reasonably available from another source does not apply to assistance
provided under section 382 of this title pursuant to a request of the Attorney General for the assistance.”
(2) Personnel may be used to provide training, expert advice, and to operate/maintain
equipment. 10 USC ∋373/4 (see approval authorities mentioned above). Note that the training authorized
by 10 USC ∋373 and AR 500-51 are limited to training in connection with equipment. DOD Directive
5525.5 (1982 version contained the same limitation), which postdates AR 500-51, does not contain this
limitation. "The Military Departments may provide training to Federal, state, and local civilian law
enforcement officials ... and may include training in the operation and maintenance of equipment made
available ..." While the DOD Directive does contain some other limitations, discussed in the counterdrug
section below, this broader authority most likely stems from an interpretation of 10 USC ∋378, which
states that nothing in these statutes "shall be construed to limit the authority of the executive branch in the
use of military personnel or equipment for civilian law enforcement purposes beyond that provided by law
before December 1, 1981." Because military training provided to civilian law enforcement went beyond
training and equipment prior to 1981, ∋373, read with ∋378, does not limit current authority to provide

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training. See Paul J. Rice, New Laws and Insights Encircle the Posse Comitatus Act, 104 MIL. L. REV.
109 (1984). In any case, service regulations require such requests to be approved by higher authority.
Additionally, in the counterdrug arena, additional legislative authority also permits training of law
enforcement personnel engaged in counterdrug activities. ∋1004, FY 1991 National Defense Authorization
Act, Pub. L. No. 101-510 (authority extended until 1999 by ∋1011, FY 1995 National Defense Authorization
Act, Pub. L. No. 103-337). Counterdrug training support also requires the approval of higher authority. See
Chairman, Joint Chiefs of Staff Instruction 3710.01.
(3) Judge advocates and their commanders should proceed cautiously with
requests for training support. For prudential reasons, and based on SOF experiences in connection
with the Bureau of Alcohol, Tobacco, and Firearms raid on the Branch Davidian Complex in Waco, TX in
February of 1993, on June 29, 1996, the Dep. SECDEF issued a directive-type memorandum describing
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 specifically excepted. “Advanced military training,” is defined as high intensity training
which focuses on the tactics, techniques, and procedures (TTP’s) 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 operation 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.
The single general exception to the policy is the U.S. Army Military Police School,
which is allowed to continue training CLEA personnel in Counterdrug related courses. On an exceptional
basis, the USCINCSOC may approve such training by SOF’s, but if so, then the USCINCSOC will inform
the Executive Sec to the SECDEF of the training provided. DOD Directive 3025.15, Military Assistance to
Civil Authorities, 18 Feb 97, canceled the previous SECDEF Memorandum on “Military Assistance to Civil
Authorities,” but still requires a legal review for all law enforcement agency requests for support. The
request must be approved in accordance with DOD Directive 5525.5 but at a level no lower than a flag or
general officer. The directive requires any requests to assist law enforcement agencies 1) with potential
for lethal support (arms, ammo, combat vehicles),2) regarding weapons of mass destruction,3) counter-
terrorism operations or 4) possible confrontation between law enforcement and specifically identified
civilian groups or individuals; 5) confrontation between department personnel and civilian individuals or
groups; or 6) that raises a question on appropriateness or legality of providing requested support; be
forwarded to the SECDEF office [DOD Directive 3025.15 D(7)(b)]. All requests must be assessed with
regard to legality, lethality, cost, risk, appropriateness and impact on readiness.
(4) 10 USC ∋375 emphasizes the outer limit of DOD support by requiring SECDEF to
prescribe regulations prohibiting the direct participation of any service member (Army, Navy, Air Force, or
Marine Corps) in a search, seizure, arrest, or similar activity, unless otherwise authorized by law. DOD
Directive 5525.5 is the implementing regulation and lists these "similar activities," e.g. interrogation,
surveillance, undercover work, informant work, and investigation. Note that enclosure 4 of DOD Directive
5525.5 maintains the traditional interpretation that the PCA does not apply to the Navy and Marine Corps,
i.e. that it applies to those services only as a matter or policy, which may, in certain limited circumstances,
be waived by either the Secretary of the Navy or the Secretary of Defense to permit such personnel to
take on a direct law enforcement role.
(5) 10 USC 382 “Emergency situations involving chemical or biological weapons of mass
destruction,” enacted as part of the Defense Against Weapons of Mass Destruction Act of 1996 calls for
the “SECDEF to develop and maintain at least one domestic terrorism rapid response team composed for
members of the Armed Forces and employees of DOD who are capable of aiding Federal, State and Local
officials in the detection, neutralization, containment, dismantlement, and disposal of weapons of mass
destruction containing chemical, biological, or related materials.” The SECDEF can waive the applicability
of PCA limitations in these cases.

d. The traditional exceptions to the PCA include the following:

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 (1) Constitutional exception: Limited presidential authority in cases of emergency and to
protect federal property. See Immediate Response Authority discussed in Civil Disturbance (MACDIS)
section that follows and Disaster Relief (MSCA) in chapter 21.
(2) Civil Disturbance Statutes (10 USC ∋∋331-334): Permit use of federal troops to
restore order. See following section.
(3) Military Support for Civilian Law Enforcement Agencies Statutes (10 USC ∋∋371-382):
Technically, not an exception to PCA; instead they clarify its limits. See above. 10 U.S.C. ∋382 contains
a specific but albeit limited, exception to the PCA. While the Statute prohibits the direct participation of
military personnel in most cases, it does authorize direct participation in arrest, search and seizure, and
intelligence collection when necessary to save human life and civilian authorities are unable to take the
required action, as long as the action is otherwise authorized by law.
(4) Military Purpose Doctrine: Permits use of military personnel in a law enforcement role
when primary purpose is a military one. Most often used in joint criminal investigations by military criminal
investigative personnel and civilian law enforcement agencies, e.g., DOD Inspector General Memorandum
#5 (October 1987) sanctioned drug investigations.

e. Keep in mind that the CLEA Statutes (10 USC ∋∋371-382), although closely linked, are
separate authority from the Posse Comitatus Act (PCA). The primary distinction is that they are not
criminal statutes. Additionally, however, actions of military personnel which do not run afoul of 10 USC
∋375, may still be violations of the PCA. For example, directing traffic in a civilian setting or conducting
security patrols in a city are actions not ostensibly inconsistent with ∋375, but are most likely still violations
of the PCA, given the tests courts have formulated to determine whether a PCA violation has occurred.
These tests are discussed below.

f. The key phrase in the Posse Comitatus Act is "to execute the laws". Three different court
interpretations have emerged from federal courts regarding what this language means. In United States v.
Jaramillo, 380 F.Supp 1375 (1974), the court looked to whether the conduct of the military "pervaded the
activities" of civilian law enforcement. In United States v. Red Feather, 392 F.Supp 916 (1975), the court
held that executing the laws meant "direct active use" of military personnel. In United States v. MacArthur,
419 F. Supp 186 (1976), the court decided that execution of the laws meant subjecting citizens to military
authority which was "regulatory, proscriptive, or compulsory" in nature. In United States v. Yunis, 681
F.Supp 891 (1988), the court applied the analysis from United States v. MacArthur and reaffirmed the
"regulatory, proscriptive, or compulsory" test. All three tests may be applied to a single situation, and if the
activity in question meets any of the tests, the court may determine that the Act itself has been violated.
Note, however, that no one has ever been convicted of a Posse Comitatus Act violation. Of greater
likelihood, although also rare, is that the court may invoke the exclusionary rule in the case of a PCA
violation, see State v. Pattioay, 896 P. 2d 911 (1995), or that military personnel may be held civilly liable,
see Applewhite v. United States Air Force, 995 F.2d 997 (1993). See International and Operational Law
Department Note, ARMY LAW., Jul. 1995, at 61.

g. OCONUS applicability of these statutes: Neither the Posse Comitatus Act nor similar
prohibitions contained in 10 USC ∋375 are applicable outside the territorial jurisdiction of the US. (See
opinion of the Office of Legal Counsel, U.S. Dept. of Justice, Extraterritorial Effect of the Posse Comitatus
Act, Nov. 3, 1989; see also The Posse Comitatus Act and Drug Interdiction: Just How Far Can We Go?,
the ARMY LAW., Dec. 1990). Note, however, the impact of DOD Directive 5525.5, DOD Cooperation With
Civilian Law Enforcement Officials, which applies worldwide to all US forces. It implements the direct
participation proscription of 10 USC ∋375 (search, seizure, arrest, etc.). Thus, absent the SECDEF waiver
provided in DOD Directive 5525.5, US forces operating OCONUS are still subject to significant restrictions
on their activities. Further OCONUS restrictions are mentioned in later in this chapter.

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 DOD COUNTERDRUG SUPPORT

REFERENCES:
A. 18 USC ∋1385, Posse Comitatus Act.
B. 10 USC ∋∋371-382, Chapter 18 - Military Support For Civilian Law Enforcement
Agencies.
C. 1989, 1990-91, 1990-91, 1992-93, 1993, 1994, 1995,1996,and 1997 National Defense
Authorization Acts (Public Laws 100-456, 101-189, 101-510, 102-190, 102-484, 103-
160, 103-337;104-106 and 104-201 respectively).
D. DOD DIR. 5525.5, DOD Cooperation With Civilian Law Enforcement Officials
(w/change one), 21 February 1986.
E AR 500-51, Support to Civilian Law Enforcement, 1 August 1983.
F. AR 700-131, Loan and Lease of Army Materiel, 4 September 1987.
G. NGR 500-2/ANGI 10-801, National Guard Counterdrug Support to Law Enforcement
Agencies, 30 September 1993.
H. SECNAVINST 5820.7B, Cooperation With Civilian Law Enforcement Officials, 28
March 1988.
I. DOD Directive 5525.10, Using Military Working Dog Teams to Support Law
Enforcement Agencies in Counterdrug Missions, 17 November 1990.
J. AFI 31-202, Military Working Dog Program, 18 March 1994.
K. AFI 10-801, Air Force Assistance to Civilian Law Enforcement Agencies, 15 April
1994.
L. FM 100-19, Domestic Support Operations, July 1993.
M. 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.
N. Joint Pub 3-07.4, Joint Counterdrug Operations, 9 August 1994
O. CJCS Instruction 3121.01, Standing Rules of Engagement for US Forces, 1 October
1994.
P. NAVMC 2915, Counterdrug Campaign Plan, 23 November 1993.
Q. Thomas S.M. Tudor & Mark E. Garrard, The Military and the War on Drugs, 37
A.F.L.Rev. 267 (1994).

IT IS IMPORTANT TO NOTE THAT ALL OF DOD'S COUNTERDRUG MISSIONS ARE STRICTLY IN

SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES. THE FOLLOWING IS A LIST OF THE
TYPES OF DOD MISSIONS UNDERTAKEN IN SUPPORT OF CIVILIAN LAW ENFORCEMENT.

DOD Support to Civilian Law Enforcement Agencies (CLEAs). DOD has specific statutory
authority to support certain activities of US CLEAs. This support role has both a domestic and an
international application (see e.g., 10 USC ∋∋371-382).

DOD Support For Non-CLEAs. Under the general authority of the Economy Act (31 USC ∋1535)
and the Intergovernmental Cooperation Act (31 USC ∋6505), as well as specific statutory authority for the
agency concerned (e.g. State, CIA, etc.), DOD may support other federal, state and local agencies which
have a counterdrug role even though the agencies are not CLEAs. As an example, DOD provides
extensive support to the State Department pursuant to authority under the Foreign Assistance Act and the
Arms Export Control Act.

NOTE: The seminal document in understanding these two counterdrug support missions
as they are assigned to the unified commanders is the Chairman of the Joint Chiefs of Staff
Delegation of Authority Instruction (CJCSI 3710.01, 28 May 1993), in which the Secretary of
Defense, through the Joint Chiefs of Staff, gave authority to unified commanders (e.g. USACOM,
USPACOM) to approve counterdrug-related deployments of DOD personnel in support of CLEAs

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and non-CLEAs. The instruction contains an excellent listing of the types of support provided as
well as legal and fiscal guidance related to the support.

DOD's Counterdrug Mission. DOD also serves as the single lead agency for the Federal
Government for the detection and monitoring of aerial and maritime transit of illegal drugs into the US [see
10 USC ∋124]. 10 USC ∋124 states that this role is in support of federal, state, local, and foreign CLEAs.

These three missions are discussed in detail in the following sections.

A. DOD Counterdrug Support Missions..

1. DOD Support to Civilian Law Enforcement Agencies (CLEAs).

a. General. This paragraph describes the support which DOD may provide to federal,
state, local, and foreign CLEAs. The support is authorized primarily within the territorial jurisdiction of the
US, including the territorial seas. Certain actions are authorized outside the land area of the US, e.g.
various federal CLEAs, such as the FBI, the Drug Enforcement Administration (DEA) and the Coast Guard
may participate in cooperative international efforts to combat drug production and trafficking.

b. Statutory authority defining DOD's role.

(1) General assistance in support of federal, state and local civil law
enforcement agencies (CLEAs) (10 USC ∋∋371-374).
(a) DOD may provide information gained during normal military training or
operations, and shall "to the maximum extent practicable" consider the information needs of CLEAs
when planning normal training or military operations; and shall, "to the extent consistent with national
security", share intelligence with CLEAs (10 USC ∋371).

[NOTE: during an otherwise valid training mission or exercise, information gathered may be
passed to other agencies. Moreover, 10 USC ∋371 requires DOD to take CLEA 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 CLEA for aerial surveillance of potential
marijuana fields, and similar activities". House Conference Report No. 100-989, Nat'l Def. Auth. Act
FY 89, p. 2529, US Cong. and Admin. News.]

(b) DOD may provide equipment, supplies, spare parts, and facilities to
CLEAs (10 USC ∋372).
i. Requests by CONUS law enforcement agencies for equipment,
facilities, and training from the training base should be coordinated, and many times, processed by the
appropriate Regional Logistics Support Office (RLSO - regional RLSOs are located at Buffalo, Miami, El
Paso, and Long Beach) in accordance with current DOD policy and service regulations. In other cases,
consult service directives which contain guidance on providing equipment, facilities, and personnel to
CLEAs.
ii. 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 USC ∋1535) and the Leasing Statute (10 USC ∋2667), and service regulations, e.g., AR
500-51 and AR 700-131.
- The process for loaning equipment to federal agencies
is fairly straightforward, and usually can be arranged without cost to the CLEA.
- The process of leasing equipment to State and local
agencies is more complicated, requiring the payment of fair rental value and a surety bond (see AR 700-
131). One approach is to ask the State or local agency to acquire "federal sponsorship" so the material
may be loaned instead of leased.
- Always be cognizant of the appropriate approval
authority for the loan or lease of equipment. Consult service directives.

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 (c) DOD may make personnel available to train CLEA officials in the
operation and maintenance of equipment and to provide "expert advice" to CLEA officials "relevant to the
purposes of this chapter" (10 USC ∋373). 10 USC ∋383 assistance includes the operation of equipment to
monitor, contain, disable, or dispose of the weapon involved or elements of the weapon.
i. Congress has specifically sanctioned the provision of
linguist/translator and intelligence analyst support (expert advice) to CLEAs (∋1004 of FY 91 National
Defense Authorization Act, found in notes to 10 USC ∋374). These are two popular types of support
requested by CLEAs in CONUS. If the support provided involves individuals with an intelligence MOS,
additional requirements arise (e.g., E.O. 12333 and DOD Reg. 5240-1R require service component
General Counsel approval of intelligence support to CLEAs). Also, DOD policy prohibits those with a
counterintelligence MOS from participating in CONUS counterdrug operations with CLEAs.
ii. 10 USC ∋373, however, authorizes a wide variety of support
besides linguist and intelligence support. Special Operations Forces in particular are frequently asked to
provide mission essential task list (METL) training, often in the form of mobile training teams (MTTs) to
CLEAs. OCONUS, additional specific authority (10 USC ∋2011) exists which may involve counterdrug
training of foreign forces. This statute requires that the primary purpose of the training is to train US SOF
forces. It permits the use of O&M funds to fund this type of training, to include the foreign forces
incremental expenses, such as food, fuel, training ammunition, transportation, etc.
iii. There are policy restrictions in place which limit this type of
support (DOD Directive 5525.5, encl. 4):
- Training is not to be "large scale or elaborate."
- Neither training nor expert advice should permit "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 times 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.
- See also new policy guidance on training promulgated
by SECDEF, discussed above.
- The "Kelly Girl" prohibition which states that DOD will
not provide "routine logistical or administrative support" to CLEAs ( see DA Gen. Counsel opinion of 9 Jan
1991).
(d) DOD may make personnel available to maintain equipment for CLEAs
(10 USC ∋374).
(e) DOD may provide personnel to operate equipment "for purposes
other than" those described in paragraph (f), below, "only to the extent that such support does not involve
direct participation by such personnel in a civilian law enforcement operation unless such direct
participation is otherwise authorized by law" (10 USC ∋374(c)).
(f) Operate equipment, including equipment provided under 10 USC
∋372 in support of federal CLEAs (10 USC ∋374(b)(1)(A)) and under ∋382(c) to support emergency
assistance to Federal, State or Local law enforcement officials in cases of weapons of mass destruction.
i. DOD may make personnel available to operate equipment for a
federal CLEA 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) 10 USC ∋374(b)(1)(A) and (b)(4)(A));
ii. Additionally, DOD may make personnel available to operate
equipment for a federal CLEA 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

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controlled substances laws (including the Maritime Drug Law Enforcement Act), immigration and customs
law enforcement (10 USC ∋374(b)(1)(B) and (b)(4)(A)). Note that regardless of whether the authority
under ∋374 (b)(1)(A) or (B) is invoked, ∋374(b)(1) requires the request to come from the head of a federal
agency.
iii. Personnel made available to support CLEAs under this
authority may operate equipment for these purposes (10 USC ∋374 (b)(2):
- Detection, monitoring, and communication of the
movement of air and sea traffic, 10 USC ∋374(b)(2)(A).
- Detection, monitoring, and communication of the
movement of surface traffic outside the geographic boundary of the US and within the US not to exceed
25 miles if the initial detection occurred outside of the boundary. 10 USC ∋374(b)(2)(B).
- Aerial reconnaissance, 10 USC ∋374(b)(2)(C).
- Interception of vessels or aircraft detected outside the
land area of the US for purposes of communicating with them and directing them to go to a location
designated by appropriate civilian officials. Continue to operate this equipment to pursue these vessels or
aircraft into the land area of the US in cases where the detection began outside such land area, 10 USC
∋374(b)(2)(D) and 10 USC ∋374(b)(3). [Note: this "hot pursuit" provision is exceptional authority for
DOD to conduct operations within CONUS that would normally fall within the purview of CLEAs].
This authority does not permit physical force downs of aircraft.
- Operation of equipment to facilitate communications for
CLEAs, 10 USC ∋374(b)(2)(E).
- Subject to the joint approval of SECDEF and the
Attorney General, transport federal CLEA personnel and operate a base of operations for them (10
USC ∋374(B)(2)(F) [as amended by ∋1210, National Defense Authorization Act for FY 90-91, Pub. L. 101-
189]); see also ∋1004, National Defense Authorization Act for FY 92-93, Pub. L. 102-190], 10 USC
∋374(b)(2)(F). In the case of law enforcement operations OCONUS, the conduct of these operations also
requires the approval of the Secretary of State.

[NOTE: joint approval of SECDEF and the AG is not required when transporting CLEAs under the
authority of ∋1004, Nat'l Def. Auth. Act for 1991, Pub. L. 101-510. ∋1004 authority was extended
through FY 99 by ∋1121, Nat'l Def. Auth. Act for 1995, Pub.L. 103-337]

(2) Specific Assistance: SECDEF may provide additional support to federal,

state, local, and foreign agencies which have "counterdrug responsibilities," ∋1004, Nat'l Def. Auth. Act 91,
Pub. L. 101-510, as amended by succeeding provisions in the National Defense Authorization Act. ∋1004
offers the most flexible counterdrug authority. It represents extremely strong authority because Congress
specifically enumerated 10 categories of support to CLEAs. This authority is also noteworthy in that
Congress has authorized, and to a lesser extent, appropriated funds for these specific activities.
Consequently, DOD does not need to seek reimbursement when providing these types of support. It
should be emphasized, however, that Congress has never appropriated as many funds as they've
authorized. Congress, dissatisfied with DOD participation in the counterdrug, passed this legislation to
stimulate greater DOD participation. This is the most widely used counterdrug authority and

This additional support includes:

(a) Maintenance and repair of equipment that has been made available to
any department or agency of the Federal Government, or State or local government by DOD for purposes
of:
(i) Preserving the potential future utility of such equipment for
DOD;
(ii) Upgrading such equipment to ensure compatibility with other
equipment used.
(b) Maintenance, repair, or upgrading of equipment (including computer
software), for the purpose of:

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 (i) Ensuring that the equipment being maintained or repaired is
compatible with equipment used by DOD; and
(ii) Upgrading such equipment to ensure the compatibility with
equipment used by DOD.
(c) Transportation of personnel of the United states and foreign countries
(including per diem expenses associated with such transportation), and the transportation of supplies and
equipment for the purposes of facilitating counterdrug activities within or outside the U.S.
(d) The establishment (including unspecified minor construction) and
operation of bases of operations or training facilities for the purpose of facilitating counterdrug activities
within or outside the US.
(e) Counterdrug 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. Note,
however, USSOCOM policy regarding training discussed above.
(f) Aerial and ground reconnaissance outside, at or near the borders of
the United States.
(g) Construction of roads and fences and installation of lighting to block
drug smuggling corridors across international boundaries of the United States.
(h) Establishment of Command, Control, Communications, and Computer
Networks for improved integration of law enforcement, active military, and National Guard activities.
(i) The provision of linguist and intelligence analysis services.
(j) Aerial and ground reconnaissance.

Note: ∋1004(g) states that this authority is in addition to, and not limited by, the Military Support to Civilian
Law Enforcement Agency Statutes (10 USC ∋371-382), except for 10 USC ∋375. This authority is subject
to the provisions of that statute.

(3) Additional Assistance:

(a) Training in drug interdiction areas (DIA).
(i) SECDEF shall direct that the armed forces, to the maximum
extent practicable, shall conduct military training exercises (including training exercises conducted by the
reserve components) in drug-interdiction areas." Drug interdiction areas include "land and sea areas in
which, as determined by the Secretary, the smuggling of drugs into the US occurs or is believed by the
Secretary to have occurred" (∋1206, Pub. L. 101-189).
(ii) This statute constitutes important authority in the Southwest
border regions of Texas, New Mexico, Arizona, and California. The entire region has been declared a DIA.
Consequently, much counterdrug support takes place in this region that would not be authorized elsewhere
in CONUS. Examples include terrain denial missions, the establishment of listening posts/observation
posts(LP/OPs), and cultivated marijuana eradication.
(iii) Additional DIAs can be declared by the CINCs. Three
counties in southern Florida were declared DIAs. Supporting units/commands must convince the CINC that
the DIA designation is appropriate. This may be accomplished through law enforcement affidavits, CLEA
intelligence reports, photos, data of past seizures, arrests, etc. Having an area in your AOR declared as a
DIA enables your unit/command to conduct a variety of exercises not possible outside the DIA. The DIA
designation carries with it increased responsibility and increased need for legal oversight.]
(b) Transfer of Excess Property. SECDEF, in consultation with the
Attorney General and Director of National Drug Control Policy, may transfer personal property of DOD,
including "small arms and ammunition" to federal and state agencies for use in "counterdrug and counter-
terrorism activities” This personal property may be transferred "without cost to the recipient agency" (10
USC 2576a-this amendment implemented by Sec. 1033 of the National Defense Authorization Act of 1997,
Pub. L. No. 104-201.)

c. Domestic restrictions on support DOD may provide to CLEAs.

22-8
 (1) Posse Comitatus Act.
(2) DOD personnel may not conduct or fund any activity which includes or permits
"direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure,
arrest, or other similar activity" unless otherwise authorized by law [see 10 USC ∋375 (which does not have
extraterritorial effect; note, however, DOD Directive 5525.5, which implements these restrictions, and
does have worldwide application.)].
(3) DOD personnel may not accompany US CLEAs on actual counterdrug field
operations, or participate in any counterdrug activities where hostilities are imminent, unless authorized by
the NCA (CJCS Instruction 3121.01)
(4) DOD may not provide any support which will adversely affect military
preparedness (see 10 USC ∋376). It is because of this restriction that the approval authority for the use of
certain equipment (arms, ammunition, tactical vehicles, etc.) and personnel is at the DA level (DOD
Directive 5525.5, encl. 4).
(5) Additionally, JTF-6 promulgates policy guidance on a variety of legal issues
such as intelligence oversight, ROE, etc., which units deploying to JTF-6 should be aware of.

d. OCONUS restrictions on DOD support for federal CLEAs with responsibilities in foreign
countries.
(1) The primary restriction on DOD support for federal CLEAs outside the land
area of the US is the derivative nature of DOD's authority. DOD's authority to support the federal CLEA in
foreign jurisdictions depends entirely on the CLEAs authority to act in these jurisdictions (10 USC ∋374(b)
(1) (A) and (B).
(2) In addition to the derivative nature of DOD's support authority, if DOD's
support is to be provided within the jurisdiction of a foreign country, State Department coordination
approval is required (22 USC ∋2291(b)(1)).
(3) The Posse Comitatus Act and 10 USC ∋375 do not apply in foreign countries,
their territorial seas or international waters. DOD is not prohibited from enforcing US law in these places.
However, DOD policy requires SECDEF or SECDEF approval if military personnel are to provide direct
assistance to execute the law outside the territorial jurisdiction of the US (DOD memo, Modification of
DOD Directive 5525.5, "DOD Cooperation with Civilian Law Enforcement Officials, dated 20 Dec 89).
(4) DOD personnel may not accompany US CLEAs or Host Nation forces/LEAs
on actual field operations or to participate in any activities where hostilities are imminent. They also may
not stay overnight in Peru's Upper Huallaga Valley (a center of coca production). (CJCS Instruction
3710.01/3121.01)
(5) Also if DOD support is provided to assist a federal CLEA in any foreign police
action with respect to foreign country drug control efforts, restrictions under the Mansfield Amendment to
the Foreign Assistance Act are applicable (22 USC ∋2291(c)). The Mansfield Amendment is discussed in
detail in the following section.
(6) DOD support may not adversely affect military preparedness (10 USC ∋376).

e. Reimbursement considerations.
(1) Congress has appropriated funds for DOD to train military personnel but not
for DOD to perform domestic civil law enforcement (See 10 USC ∋377(a) and (b)). Fiscal law principles
require that the costs attributable to the support DOD provides to CLEAs be reimbursed by CLEAs unless:
(a) The support is provided in the normal course of military training or
operations (10 USC ∋377(b) (1)); or
(b) The support results in a benefit to DOD which is "substantially
equivalent" to that which would otherwise be obtained from training or operations (10 USC ∋377(b) (2)); or
(c) The support is provided in accordance with special appropriations,
e.g. Congress appropriates a certain amount every year for ∋1004 support activities every year. Congress
also often authorizes the transfer of excess DOD personal property to CLEAs for their counterdrug mission
"without cost to the recipient agency."

22-9
 (2) Support provided to federal CLEAs which does not provide training or
operational benefit to DOD and is not "additional support" must be reimbursed (10 USC ∋377(a) and 31
USC '1535).
(a) The mechanism for reimbursement is the Economy Act (31 USC
∋1535). It requires that the providing agency be fully reimbursed for all direct and indirect costs associated
with the goods and services it provides to the other agency unless otherwise provided by law.
(b) The Economy Act also requires reimbursement for pay and
allowances and all costs associated with DOD's preparation of an asset for other agency use. There
should be no residual cost to DOD's appropriations for any support provided (See 57 Comp. Gen. 674
(1974). This opinion provides a good analysis of the Economy Act and how the Comptroller General
interprets it, e.g., all direct expenses and certain indirect expenses attributable to providing support are
recoverable by the providing agency [at page 682]).
(c) The Economy Act permits non-reimbursable or "accommodation"
loans of equipment. The borrower assumes "the costs incurred by reason of the loan" (See 30 Comp.
Gen. 295 (1951)). The cost assumed by the borrower include equipment operation and costs associated
with returning the equipment in the condition received, less fair wear and tear. 38 Comp. Gen. 558 (1959).
See AR 700-131.
(3) Support provided to state and local CLEAs which does not provide training or
operational benefit to DOD must be reimbursed (10 USC ∋377(a) and 31 USC ∋6501 et seq).
(a) The mechanism for reimbursement is the Intergovernmental
Cooperation Act. It requires "payment of pay and all other identifiable costs of providing the services"
requested by an agency (31 USC ∋6505).
(b) DOD is required to charge applicable rates for non-DOD users of
DOD assets (see DOD 7230.7). Charges may be waived or reduced when full payment by a state or local
government would not be in the best interest of the program (paragraph D.3.b.(2), DOD 7230.7).
(4) The assignment of Coast Guard personnel to surface naval vessels for law
enforcement purposes (10 USC ∋379) is funded from appropriations transferred from DOD to the Coast
Guard (See e.g., Legislative History, Pub. L. 100-456, 1985 U.S. Code Cong. and Admin. News at 2582-
3).

f. Military Working Dog Teams.

(1) Military Working Dog Teams are authorized to provide support to civilian law
enforcement agencies. Generally, the dog is considered a piece of equipment and the handler its
operator, thus triggering the application of 10 USC ∋372 &374, discussed above. ∋1206 training authority in
drug interdiction areas also permits the use of teams in such areas. See DOD Dir. 5525.10 and AFI 31-
202.
(2) The Air force is the DOD executive agent for military working dogs. It makes
clear that only the dog's detection capabilities are to be used. They are not to be used to track persons,
seize evidence, search building or areas for personnel, or to pursue, attack, hold, or in any help to
apprehend or arrest a suspect.
(3) In addition to the dog's drug detection capabilities it may assist civilian law
enforcement in explosive ordnance detection. See AFI 31-202.

2. DOD's Support For Non-CLEAs.

a. General Authority.
(1) The Economy Act (31 USC ∋1535) is free standing general authority for any
US agency to provide goods and services to another federal agency on request and by mutual agreement.
The agreement must include the details of reimbursement. The Intergovernmental Cooperation Act (31
USC ∋6505) accomplishes a similar purpose for federal transactions with state or local government.
(a) The Economy Act is specifically incorporated into the law authorizing
DOD support to federal CLEAs (10 USC ∋377(a)).
(b) The Intergovernmental Cooperation Act is applicable to DOD
support to state and local CLEAs (10 USC ∋377(a) referring to reimbursement under other applicable law).

22-10
 (2) The transfer of goods or services to a federal, state or local agency, other
than a CLEA or the State Department, in support of the US counterdrug policy is going to be a rare
occurrence. However, it is possible that an agency which does not have a counterdrug law enforcement
mission can be involved in the counterdrug policy. For instance, the CIA is one federal agency which does
not have a counterdrug civil law enforcement mission, but which may have a role (intelligence collection,
covert activity) in international counterdrug operations or activities.
(a) The transfer of goods and services to the CIA or any other federal
agency which is not a CLEA, can be accomplished under the Economy Act. As an example, the transfer of
TOW anti-tank weapons from the Army to the CIA in what has become known as the Iran-Contra affair
was determined by the Government Accounting Office (GAO) to be a lawful Economy Act transaction (See
Iran Arms Sales. DOD's Transfer of Arms to the Central Intelligence Agency, GAO Report, NSIAD-87-114,
March 1987).
(b) Under the Intergovernmental Cooperation Act, certain goods and
services could be transferred to a non-CLEA state or local agency.

b. Specific Authority.
(1) Extensive counterdrug support is provided under Security Assistance
provisions of the Foreign Assistance Act and the Arms Export Control Act, e.g. Mobile Training Teams may
be dispatched as Foreign Military Sales cases. See the Security Assistance chapter for more detail.
(2) DOD Support To State Department International Narcotics Control Program
(Part VIII of the Foreign Assistance Act, 22 USC ∋2151, et seq.).
(a) General. The State Department is the largest non-CLEA receiving
DOD counterdrug support. All DOD efforts in the land area or territorial seas of a foreign country must be
coordinated with the State Department. SECSTATE is charged to coordinate all US assistance "to support
international efforts to combat illicit drugs production or trafficking" (22 USC ∋2291(b)(1)). This includes
DOD support to federal CLEAs with responsibilities in foreign countries.
(b) Within the State Department, the Bureau of International Narcotic
Matters (INM) and the Agency for International Development (AID) provide assistance to countries and
international organizations involved in counterdrug efforts. The authority for this assistance is in the Foreign
Assistance Act (International Narcotics Control, 22 USC ∋2291-2291k; See Drug Control, U.S. International
Narcotics Control Activities, GAO/NSIAD-88-114, GAO Report B-225282 (March 1, 1988) for a description
of the assistance provided and an analysis of its effectiveness). DOD may support this State Department
effort under ∋632(b) and (c) of the Act (22 USC ∋2392(b) and (c)).
(c) Statutory authority defining DOD's support role for State Department.
i. State Department provides international drug assistance to
foreign governments (and international organizations) under the Foreign Assistance Act (Chapter 8, Part I,
Foreign Assistance Act, International Narcotics Control, ∋∋481-489, 22 USC ∋2291-2291k).
ii. The International Drugs Control program is not security
assistance (security assistance is Part II of the act). DOD has a support role in both Part I and Part II
programs under the Foreign Assistance Act (Security assistance authorities are discussed in detail in
Chapter 24).
iii. State Department Authority
-"Notwithstanding any other provision of law, the
President (delegated to SECSTATE by paragraph 1-201(a) (24), E.O. 12163, Sept. 29, 1979, as
amended) is authorized to furnish assistance to any country or international organization, on such terms
and conditions as he may determine, for the control of psychotropic drugs and other controlled substances"
(22 USC ∋2291(a) (4)).
-The Secretary of State is "responsible for coordinating
all assistance provided by the US government to support international efforts to combat illicit drugs
production or trafficking" (22 USC ∋2291(b)(1)).
- The US counterdrug policy is a significant objective of
the Foreign Assistance Act: "international narcotics trafficking poses an unparalleled transnational threat in
today's world and its suppression is among the most important foreign policy objectives of the US, (22
USC ∋2291 (a)(1)(A)).

22-11
 - The President may conclude agreements with foreign
countries to "facilitate control of the production, processing, transportation, and distribution of narcotics . . .
and other controlled substances" (22 USC ∋2291(a) (2)).
-The State Department, in cooperation with foreign
countries, may fund the use of herbicides to eradicate drug crops; the authority to use herbicides is closely
monitored by Congress (22 USC ∋2291(d); see also Control. U.S.- Mexico Opium Poppy and Marijuana
Aerial Eradication Program, GAO-NSIAD-88-73, B-225282 (January 11, 1988). Without separate authority
and appropriations, DOD may not conduct (fund) its own herbicide spraying operation because Congress
has provided State Department a more specific appropriation with which to conduct this activity.
- State Department and the participating foreign country
share the costs. A foreign country "should bear an appropriate share of the costs of any drug control
program, project, or activity" for which U.S. assistance is provided. These costs may be borne by "in-kind"
contributions from the foreign country (22 USC ∋2292a(c)).
(d) State Department Appropriations. State Department foreign activities
and programs, including the International Narcotics Control Program, are funded from separate
appropriations for the Department (See Foreign Operations, Export Financing, and Related Programs
Appropriations Act, 1996, Pub. L. 103-306 which appropriates $115,000,000 for FY 96 State Department
narcotics activities).
(e) Restrictions on DOD support for State Department efforts under the
Foreign Assistance Act.
i. The Mansfield Amendment to the Foreign Assistance Act is
applicable only when United States personnel participate in foreign police actions. It prohibits certain
police-type actions by "officers and employees of the US" except in special situations enumerated below.
- DOD personnel may not "directly effect an arrest in any
foreign country as part of any foreign police action with respect to drug control efforts, notwithstanding any
other provision of law" (22 USC ∋2291(c)(1)).
- With the "approval of the US chief of mission," the
restriction described above, does not prohibit DOD personnel from "being present when foreign officers
are effecting an arrest or from assisting foreign officers who are effecting an arrest" (22 USC ∋2291(c)
(2)).
- ∋2291(c)(3) does not prohibit DOD personnel "from
taking direct action to protect life or safety if exigent circumstances arise which are unanticipated and
which pose an immediate threat to United States officers or employees, officers or employees of a foreign
government, or members of the public."
- If a foreign country agrees, this section will not apply
with respect to "maritime law enforcement operations in the territorial sea or archipelagic waters of that
country" (22 USC ∋2291(c) (4)).
- DOD personnel may not "interrogate or be present
during the interrogation of any US person arrested in any foreign country with respect to drug control
efforts without the written consent of such person" (22 USC ∋2291(c) (5)).
- These prohibitions do not apply to DOD personnel who
are carrying out US responsibilities under applicable SOFAs (22 USC ∋2291(c)(6)).
ii. Police training prohibition (∋660, FAA, 22 USC 2420). This
section of the Foreign Assistance Act prohibits using funds appropriated for the act to train, advise,
assist, support or equip "police, prisons, other law enforcement forces ... or any program of internal
intelligence or surveillance" of a foreign country. This prohibition applies to any training provided under the
Foreign Assistance Act (e.g. IMET, FMS, etc., see Chapter 24). It would severely limit U.S. international
counterdrug policy, except:
- It does not apply to Chapter 8, Part I, International
Narcotics Control, Foreign Assistance Act (22 USC ∋2420(b) (1)). Obviously, this is a significant exception
in this area.
- It does not apply to sharing crime statistics and other
information with foreign governments (22 USC ∋2420(b) (1); See 42 USC ∋3763(b) (1)).

22-12
 - It does not apply to "any authority of the Drug
Enforcement Administration or Federal Bureau of Investigation which relates to crimes of the nature which
are unlawful under the laws of the US" (22 USC ∋2420(b) (1)).
- It does not apply to "assistance, including training, in
maritime law enforcement and other maritime skills" (22 USC ∋2420(b) (3)).
- It does not apply with respect to assistance provided to
police forces in connection with their participation in the regional security system of the Eastern Caribbean
states (22 USC ∋2420(b)(4).
- It does not apply to "a country which has a long-
standing democratic tradition, does not have standing armed forces, and does not engage in a consistent
pattern of gross violations of internationally recognized human rights" (22 USC ∋2420(c)).
- It does not apply when specifically waived or otherwise
made inapplicable. This occurs when Congress requires security assistance (Part II, FAA and the AECA)
authorizations and appropriations to be devoted to international drug control efforts (See e.g., Sect. 3, 4,
5, 6, and 8, Pub. L. 101-231).
- Using the interagency transaction authorities in the
Foreign Assistance Act (discussed in "Reimbursement considerations," paragraph (6), next below), State
Department may, for example, request DOD support to train foreign counterdrug personnel (See ∋632(b),
22 USC ∋2392(b)). DOD would be reimbursed as required in ∋632(c) (22 USC ∋2392(c)) of the act.
Programs conducted by the Coast Guard, DEA or FBI under State's authority may likewise be supported
by DOD.
iii. State Department may not use funds made available for
International Narcotics Control (Chapter 8, Part I, FAA) "for the procurement of weapons or ammunition"
(22 USC ∋2291a(b)). The statute provides exceptions for the defensive arming of aircraft used for
narcotics related purposes or for providing firearms and ammunition for defensive purposes to employees
or contract personnel of the Department of State engaged in narcotics activities.

(f) Reimbursement considerations (22 USC ∋2385(a), ∋2392(b) and

∋2392(c)).
i. The Foreign Assistance Act contains its own interagency
transaction authorities which require supporting agencies to be reimbursed by State Department in
accordance with a specified standard. The standard is "replacement cost, or if required by law, at actual
cost, or, in the case of services procured from the Department of Defense to carry out Chapter VIII
(International Narcotics Control) the amount of the additional costs incurred by the Department of Defense
in providing such services, or at any other price authorized by law and agreed to by the owning or
disposing agency.
ii. Other fiscal considerations. DOD must ensure that
appropriated funds it receives for this mission are spent for purposes for which these funds are
appropriated. These Purpose Statute (31 USC ∋1301(a)) concerns are of particular concern in this area
because of the potential for misuse of O&M funds (title 10 funds) for a security assistance mission (title 22
funds).

3. DOD's Counterdrug Mission.

General. DOD's primary counterdrug mission, although still in support of federal, state,
local, and foreign CLEAs, is the detection and monitoring of aerial and maritime transit of illegal drugs
into the US. The mission is codified at 10 USC ∋124. Detection is defined as determining the presence of
aircraft or vessels by visual or electronic means. Monitoring is tracking or maintaining continuous
knowledge of the location of a suspected aircraft or vessel. Interception is establishing a position relative
to the suspected aircraft or vessel for purposes of monitoring its activities. Apprehension is taking into
custody the suspected aircraft or vessel. The process of interdiction involves all these activities, but other
federal agencies are responsible for interdiction (Customs for air interdiction and the Coast Guard for
maritime interdiction). DOD assets do not apprehend, physically interrupt, or force down aircraft or
vessels. The detection and monitoring mission is funded through congressionally authorized O&M funds.

22-13
 a. Statutory authority defining DOD's counterdrug mission (10 USC ∋124).
(1) DOD will serve as the single lead agency of the Federal Government
for the detection and monitoring of aerial and maritime transit of illegal drugs into the United States (10
USC ∋124(a) and 10 USC ∋113 (I)).
(2) DOD may operate equipment to intercept a vessel or an aircraft
detected outside the land area of the United States for the purposes of identifying and communicating with
that vessel or aircraft and directing it to go to a location designated by appropriate civilian officials (10 USC
∋124(b) (1) (A) and (B)).
(a) When the vessel or aircraft is detected outside the land area
of the United States DOD personnel may begin or continue pursuit of it over the land area of the United
States (under a "hot pursuit" theory (10 USC ∋124(b) (2)).
(b) The "land area of the US" is defined as "the several states
and any territory, commonwealth, or possession of the US." (10 USC ∋124(c)).

b. This mission triggered the establishment of three Joint Task Forces (JTF).
These commands provide unity of command in the accomplishment of the detection and monitoring
mission. Two of the JTFs have been renamed as Joint Inter-Agency Task Forces (JIATF). JIATF-East is
located in Key West, FL, while JIATF-West is in Alameda, CA. The respective CINCs, USACOM and
USPACOM are responsible for these organizations. JTF-6, located at Fort Bliss, TX, currently responsible
for the Southwest Border region, will, by the end of 1995, coordinate all CONUS support to CLEAS.
Missions conducted under this authority include Navy E-2 and P-3 aircraft and Air Force AWACS flights,
USN/USCG deployments, aerostats, fixed and mobile ground-based radar site deployments.

c. While USSOUTHCOM provides the bulk of its counterdrug support through

support to CLEAS and non-CLEAs (Department of State) it also has a significant detection and monitoring
mission involving the same type of detection and monitoring operations discussed above. SOUTHCOM's
detection and monitoring mission in South America was highlighted when Peru and Colombia initiated a
shoot down policy of suspected drug trafficking aircraft. There was concern that the provision of flight
tracking information from US detection and monitoring assets to these countries could trigger domestic
criminal liability. Congress addressed this concern in the 1995 Defense Authorization Act by affording
official immunity to US personnel, including members of the Armed Forces, who provide assistance to for
the interdiction actions of foreign countries. This provision is codified at 22 USC ∋2291-4.

d. In consultation with the Director of National Drug Control Policy, SECDEF

"shall integrate into an effective communications network the command, control, communications, and
technical intelligence assets of the US that are dedicated (in whole or in part) to the interdiction of illegal
drugs into the US" (∋1204 and ∋1201(d), Pub. L. 101-189).

e. SECDEF shall ensure research and development activities are devoted to

technologies to improve DOD's detection and monitoring mission (∋1205 and ∋1201(e), Pub. L. 101-189).

4. National Guard Counterdrug Role.

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 state
and territories. National Guard units provide 16 types of support. which are listed in NGR 500-2.

b. Federal support to the National Guard counterdrug effort is in providing federal funding
to certain counterdrug missions. The statutory basis for this support is 32 USC ∋112. That statute was
amended by ∋1021 of the FY 1996 National Defense Authorization Act, in order to "revise and clarify" the
authority for federal support to National Guard drug interdiction and counterdrug activities, House
Conference Report 104-450, p. 839. There was some DOD concern that participation of the National
Guard in these activities while in a title 32 status, as opposed to a state active duty status, could trigger
and Anti-Deficiency Act (31 USC ∋1341(a)) violation. Congress emphasized in 1994, however, in ∋8123 of
the FY 1995 DOD Appropriations Act, Pub. L. No. 103-335, that it intended to provide funds for these

22-14
counterdrug efforts of the Guard in either a title 32 status or a state active duty status (both of which are
considered non-federal military service). Congress did not these activities to be a substitute for title 32
annual training. The 1996 amendment is a permanent fix to clarify these issues. House Conference
Report 103-747, (1994).
(1) The statute now reads that the SECDEF "may provide funds to the Governor
of a State who submits to the Secretary a State drug interdiction and counter-drug plan" 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 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..
(2) Federal funds may be provided if the governor submits a State drug
interdiction and counter-drug activities plan containing the five required elements of the statute. The
SECDEF is then to examine the plan. The revised statute also includes end-strength limits on the total
number of National Guard personnel on such duty, in either state active duty or title 32 status, at the end of
the fiscal year.

c. An important aspect of 32 USC ∋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.

d. 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). Also, state law will determine whether a particular operation may be legally supported
by the Guard.

e. NGR 500-2 also contains excellent operational guidance to National Guard units
engaged in counterdrug operations.

CIVIL DISTURBANCE OPERATIONS (MILITARY ASSISTANCE FOR CIVIL DISTURBANCES -MACDIS)

REFERENCES:

A. 18 USC ∋1385. (Posse Comitatus Act).

B. 10 USC ∋331-334. (Civil Disturbance Statutes).
C. DOD Directive 3025.12, Military Assistance for Civil Disturbances (MACDIS), 4 Feb1994.
D. AR 500-50, Civil Disturbances, 21 Apr 1972
E. FM 19-15, Civil Disturbances, 25 Nov 1985.
F. FM 100-19, Domestic Support Operations, Jul 1993.
G. DOD Civil Disturbance Plan ("Garden Plot"), Feb 1991.
H. MCO 3000.8B, Employment of Marine Corps Resources in Civil Disturbances, 30 Jul 79.
I. OPNAVINST 3440.16B, DON Civil Emergency Ass't Program, 4 Sep 91.
J. DOD Directive 5525.5, DOD Cooperation with Civilian Law Enforcement Officials, 21 Feb
1986.

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 K. AR 500-51, Support to Civilian Law Enforcement, 1 Aug 1983.
L. MCO 3440.7, Marine Corps Ass't to Civil Authorities, 1 Jan 92.
M. SECNAVINST 5820.7B, Cooperation with Civilian Law Enforcement Officials, 28 Mar
1988.
N. AFI 10-801, Air Force Assistance to Civilian Law Enforcement Agencies, 15 Apr 1994.
O. NGR 500-1/ANGI 10-8101, Military Support to Civil Authorities, 1 Feb 1996.
P. DOD Directive 3025.15, Military Support to Civil Authorities, 18 Feb 1997.

A. Definition: Civil Disturbances. Group acts of violence and disorders prejudicial to public law and
order in the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, U.S. possessions and
territories, or any political subdivision thereof. The term "civil disturbance" includes all domestic conditions
requiring the use of Federal Armed Forces under this Directive (DOD Dir 3025.12).

B. Policy. Although the President has constitutional (Art. II, ∋2, Art. IV, ∋4) and statutory authority (10
USC ∋∋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).

C. Restrictions on the Use of the Armed Forces.

1. The Posse Comitatus Act. 10 USC ∋1385. Discussed previously in this chapter.

2. Of the PCA exceptions previously mentioned, the Civil Disturbance Statutes (10 USC ∋
331 -334) obviously are critical in the area of MACDIS. They are as follows:

a. Request from a state--10 USC ∋331.

b. Whenever there is an insurrection in any State against its government, the

President may, upon the request of its legislature or of its governor if the legislature cannot be
convened, call into Federal service such of the militia of other States, in the number
requested by that State, and use such of the armed forces, as he considers necessary to
suppress the insurrection.

c. Enforcement of Federal law--10 USC ∋332.

d. Whenever the President considers that unlawful obstructions, combinations, or

assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the
laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may
call into Federal service such of the militia of any State, and use such of the armed forces, as he considers
necessary to enforce those laws or to suppress the rebellion.

e. Protection of civil rights--10 USC ∋333.

f. The President, by using the militia or the armed forces, or both, or by any other means,
shall take such measures as he considers necessary to suppress, in a State, any insurrection,
domestic violence, unlawful combination, or conspiracy, if it--
(1) so hinders the execution of the laws of that State, and of the United States
within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection
named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail,
or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or
impedes the course of justice under those laws.

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Note: In any situation covered by clause (1), the State shall be considered to have denied the equal
protection of the laws secured by the Constitution.

g. Prerequisites for Use of Federal Troops Under 10 USC ∋∋331-333.

h. Personal decision by President. AR 500-50, par. 2-3. See Executive Order 12804
(1 May 1992) in connection with Los Angeles riots.

i. Proclamation to disperse. 10 USC ∋334. See Proclamation 6427 (1 May 1992) in

connection with Los Angeles riots.

3. Outside this statutory framework military forces may not be used for civil disturbances except
in emergency circumstances which may arise in the following two situations (DOD Directive 3025.12):

a. When the use of military forces is necessary to prevent loss of life or wanton
destruction of property, or to restore governmental functioning and public order. That "emergency
authority" applies when sudden and unexpected civil disturbances (including civil disturbances incident to
earthquake, fire, flood, or other such calamity endangering life) occur, if duly constituted local authorities
are unable to control the situation and circumstances preclude obtaining prior authorization by the
President.

b. When duly constituted State or local authorities are unable or decline to provide
adequate protection for Federal property or Federal governmental functions, Federal action (including the
use of military forces is authorized, as necessary, to protect the Federal property or functions.

Note: Even in these circumstances, responsible DOD officials and commander will use all available means
to seek Presidential authorizations through the chain of command while applying their emergency authority
under this directive (DOD 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 of DA.

D. Chain of Command/Responsibilities (DOD Directive 3025.12).

1. Department of Justice - lead federal agency. Attorney General (AG) is responsible for
managing federal response. His on-scene representative is called the SCRAG (senior civilian
representative of the AG).

2. Department of Defense - coordinates Federal military response.

3. Department of the Army - executive agent of DOD via Secretary of the Army (SA). Director
of Military Support (DOMS), an Army general officer whose office is located in the Pentagon, is SA's
action agent for MACDIS. Serves as the DOD point of contact for MACDIS.

4. Combatant Commanders (USACOM, USPACOM, USSOCOM) - support role. Responsible

for planning and executing MACDIS in their AOR under guidance issued by DOMS, following coordination
with Chairman, Joint Chiefs of Staff (CJCS). Will designate JTF Commander who exercises operational
control of all federal forces assigned. AORs are as follows: USACOM: 48 states, District of Columbia,
Puerto Rico, Virgin Islands; USPACOM: Alaska, Hawaii, and US possessions and territories in the
Pacific; USSOCOM: terrorist incidents.

5. COMFORSCOM: CINCUSACOM has delegated lead operational authority (LOA) to

COMFORSCOM to conduct MACDIS in the ACOM AOR. This permits COMFORSCOM to have
operational control (OPCON) of USACOM forces (Army, Air Force, and Navy) assigned to a MACDIS

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mission. COMFORSCOM will actually nominate a commander to CINCUSACOM as a candidate for JTF
Commander. USACOM Instruction 3440.2 (3 November 1993).

6. Command Authority over Troops (DOD Directive 3025.12). All military forces employed in
MACDIS operations shall remain under military control at all times. See also AR 500-50, par. 2-6.

E. Role of the National Guard (DOD Directive 3025.12).

1. Army and Air National Guard Forces have primary responsibility for providing military
assistance to state and local governments. They will normally serve in a state active duty status (title 32)
under state command.

2. To ensure unified command and control, National Guard Forces may be federalized (title 10
status), if the President deems it necessary in extreme circumstances. The California National Guard (40th
ID) was federalized during the 1992 Los Angeles civil disturbance.

Note: Domestic Terrorist Incidents are a form of civil disturbance. DOD Directive 3025.12. See
next section "Combating Terrorism" for guidance.

F. OPERATIONAL ISSUES.

1. Use of Force. Seminal ROE reference is DOD Civil Disturbance Plan ("Garden Plot").
MACDIS operations can involve various forces, e.g. National Guard, Army, and Marines, not to mention
local, state, and federal civilian law enforcement agencies. 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 that 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:
--In self-defense to avoid death or serious bodily harm.
--To prevent crime involving serious risk of death or serious bodily harm.
--To prevent destruction of vital public health/safety/ property.
--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.

f. For Civil Disturbance ROE see Appendix C, appendices 1 and 8 of the Garden Plot,
which contain detailed guidance on ROE and various tactics and techniques for civil disturbances, e.g. use
of riot control formations, pressurized water, sniper-fire, shotguns, etc. See also JTF LA ROE below.

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 2. Restrictions on Activities.

Recognize that the Civil Disturbance Statutes (10 USC ∋∋331-334) are an exception to the
normal restrictions of the Posse Comitatus Act. Consequently, during MACDIS operations forces may
provide direct law enforcement support, such as security to civilian facilities and conduct roving patrols.
However, the overarching policy of providing support to civilian officials should always be kept in mind.
Annex C, appendix 8 to the DOD Civil Disturbance Plan (Garden Plot) states this point clearly:

The commitment of federal troops must be viewed as a drastic last resort. Their role,
therefore, should never be greater than is absolutely necessary under the circumstances. This does not
mean, however, that the number of troops employed should be minimized. To the contrary, the degree of
force required to control a disturbance is frequently inversely proportionate to the number of available
troops. ... Every effort should be made to avoid appearing as an alien, invading force. The JTF should
project the image of a restrained and well-disciplined force whose sole purpose is to assist the populace
by helping to restore law and order with minimal harm to people and property and with due respect for law
abiding citizens.

Consequently, supporting civilian law enforcement, rather than taking an aggressive law
enforcement posture is encouraged. This policy is born out in the guidance in Garden Plot, discussed
below, regarding detention of civilian personnel and searches of private property. Consistent with this
policy the JTF Los Angeles commander generally avoided deploying forces with civilian law enforcement
personnel, preferring the use of all military roving patrols, which is consistent with prudent command and
control tactics and with the overall support policy.

3. Loan/Lease of Military Equipment to Civilian Law Enforcement.

Civilian law enforcement officials often request the loan of military equipment during
MACDIS operations. In light of the DOD goal to minimize the military presence in MACDIS operations, this
practice is viewed as an effective means of accomplishing that goal. The details of providing this support
to civilian authorities is found in Annex K, Garden Plot and in AR 700-131. Some general principles,
derived from these publications follows:

Military equipment is loaned to other federal agencies (pursuant to The Economy Act, 31
USC '1535), but is leased to non-federal agencies (pursuant to The Leasing Statute, 10 USC '2667). The
distinction is important because while both transactions require a written agreement (forms are located in
the above cited publications), the lease transaction also requires the requester to post a surety bond and
to agree to pay rent for the equipment.

Approval authority is the other key issue regarding the loan/lease of military equipment.
Equipment is broken down into three groups, the approval authority varies with each group.

Group One: Personnel, arms. ammunition, combat/tactical vehicles, vessels, and

aircraft. Approval authority is SA (DOMS).

Group Two: Riot control agents, concertina wire, and other like military
equipment to be employed in MACDIS operations not included in group one. Approval authority is SA
(DOMS), CINC, or JTF Commander.

Group Three: Firefighting resources, protective equipment (masks, helmets, body

armor), and other equipment not included in group one or two. Approval authority is down to the
installation commander level.

Limited authority exists, in emergency circumstances where normal communications are

not possible, to permit local approval of loans or leases. AR 700-131, par. 2-1(h). In the vast majority of

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cases, however, questions which may arise regarding these transactions, (e.g., “what group does a
requested item fall into?”) should be referred to DOMS for resolution. DOMS telephone number is 703-
697-4331.

4. Exercise of Authority over Civilians.

Custody and Detention: Annex C, appendices 1 and 8 of Garden Plot states the general
policy that civilian authorities should take civilians into custody. However, military personnel do have the
authority to detain or take into custody rioters, looters, or others committing offenses, when necessary or
in the absence of civilian police.

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..

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 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.

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

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ARMING BAYONET
ORDER RIFLE SCABBARD BAYONET PISTOL BATON MAG/CHAMBER CNTRL

AO-1 SLING ON BELT SCABBARD HOLSTER BELT IN POUCH/EMPTY OIC/

NCOIC

AO-2 PORT ON BELT SCABBARD HOLSTER BELT IN POUCH/EMPTY OIC/

NCOIC

AO-3 SLING ON BELT FIXED HOLSTER HAND IN POUCH/EMPTY OIC/

NCOIC

AO-4 PORT ON BELT FIXED HOLSTER HAND IN POUCH/EMPTY OIC/

NCOIC

AO-5 PORT ON BELT FIXED HOLSTER HAND IN WEAPON/EMPTY OIC/

NCOIC

AO-6 PORT ON BELT FIXED IN HAND BELT IN WEAPON/OIC

LOCKED/LOADED

[NOTE: the above ROE utilized by JTF LA were adapted from the generic ROE contained in the Army's
GARDEN PLOT CIVIL DISTURBANCE PLAN, and modified slightly based upon input from Dep't of the
Army (7th ID), FORSCOM, and the JCS Staff. See pg. 30, September 1992, The Army Lawyer]

COMBATING TERRORISM

REFERENCES:

A. Army Reg. 525-13, the Army Terrorism Counteraction Program (4 January 1988).
B. DOD Directive 2000.12, DOD Combating Terrorism Program, (27 August 1990).
C. Army Reg 500-50, Emergency Employment of Army and Other Resources - Civil
Disturbances (21 April 1972).
D. Army Reg 500-51, Support to Civilian Law Enforcement (1 August 1983).
E. DOD Directive 3025.12, Employment of Military Resources in the Event of Civil
Disturbances (4 February 1994).
F. Training Circular 19-16, Countering Terrorism in U.S. Army Installations (25 April 1983).
G. FM 100-37, Terrorism Counteraction (July 1987).
H. U S. State Department- Patterns of Global Terrorism 1994 (April 1995).
I. SECNAVINST 3300.2, Combating Terrorism Program, 9 January 1992.
J. FMFM 7-14, Combating Terrorism, 5 Oct 90.
K. 10 USC ∋∋331 -334 (1995).
L. DOD Directive 3025.15, Military Support to Civil Authorities, 18 February 1997.

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.” Terrorism is a criminal act - terrorists are criminals.
Combating terrorism involves actions, including antiterrorism (defense measures used to reduce
vulnerability to terrorist acts) and counterterrorism (offensive measures taken to prevent, deter, and
respond to terrorism), taken to oppose terrorism throughout the entire threat spectrum. See Joint Pub 3-
07.2, Joint TTP for Antiterrorism (May 1993).

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 As a member of the Crisis Management Team, the JA 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 JCS SROE include “any force or terrorist unit (civilian, paramilitary, or military)"
within the definition of “Hostile Force."

JAs 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).

LEAD AGENCIES

DOS is the lead agency for response to terrorism outside the United States.

DOJ is normally the lead agency for domestic terrorism the FBI is the lead agency within DOJ for
operational response 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 US 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 US Coast Guard (USG) is responsible, within the limits of US 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 US 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 until 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
US response.

AUTHORITY

Criminal Actions. Terrorist acts are criminal acts whether committed during peacetime military operations,
hostilities short of war, or war; however, jurisdiction varies in wartime. 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

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this reason, captured terrorists are not afforded the protection from criminal prosecution attendant to
prisoner of war status. 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, terrorist acts are punishable under domestic (local) law. 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 Commander's Authority. A commander's
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 PCA,
which has been discussed at length in previous sections of this chapter. However, several of the
exceptions to the PCA are relevant to DOD’s contribution to the fight against terrorism. Of primary interest
are the Civil Disturbance Statutes (10 USC ∋∋331-334). 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. 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 firefighting 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 USC ∋∋331-334 are the primary statutory exceptions 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 Guard’s
functioning as they would, obviously, not be excepted from the PCA as well. For more information on these
statutes, see the preceding section. In addition, several other less known federal statutes that are
exceptions to the PCA may also come into play in a terrorism situation. They are:

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 USC ∋∋351, 1116, 1751.
2. To assist the Department of Justice in enforcing 18 USC ∋831, dealing with prohibited transactions
involving nuclear materials. This statute specifically authorizes the use of DOD assets to conduct

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arrests and searches and seizures with respect to violations of the statute in cases of “emergency,” as
defined by the statute.

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 proprietorial.

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 USC 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. Proprietorial 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.

Federal Authority. There are several Federal criminal statutes that may apply to terrorist activities. Some
deal with conduct that is peculiar to terrorism, and others proscribe conduct that is criminal for anyone but
in which the terrorist may engage to accomplish his purposes. Federal law contains no special prohibition
against terrorist acts or threats, as do some state codes. The Assimilative Crimes Act, however, will allow
the Federal Government to investigate and prosecute violations of state law regarding terrorist acts or

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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. 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 US policy for the President on terrorist threats that
endanger US interests.

The Committee to Combat Acts of Terrorism. This committee was reorganized in 1977 to coordinate,
through its working group executive committee, the activities of 31 Federal organizations. The working
group focuses primarily on the protection of foreign diplomatic personnel in the United States as well as
American officials working and traveling abroad. The 31 member agencies, including the Department of
Defense, may provide assistance in the form of terrorist incident information, and participation in education
seminar. Because DOS has the primary responsibility for dealing with terrorism involving Americans
abroad, it chairs this committee. Although a foreign nation has responsibility for responding to incidents
occurring on its territory, DOD or other IS Agencies may be invited to provide assistance if American
interests are involved. In such cases, the US Chief of Mission oversees the activities of US agencies.

Department of Justice. DOJ is normally responsible for overseeing the Federal response to acts of
terrorism with the US. The US Attorney General, through an appointed Deputy Attorney General, makes
major policy decisions and legal judgments related to each terrorist incident as it occurs.

Federal Bureau of Investigation. The FBI has been designated the primary operational agency for the
management of terrorist incidents occurring within the US. When a terrorist incident occurs, the Iead
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 governor’s 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. In this effort, the FBI cooperates with the
Department of Energy and Defense, the Nuclear Regulatory Commission, and the Environmental
Protection Agency as well as several states that have established nuclear threat emergency response
plans.

22-26
Department of Defense. DOD Directive 02000.12 now proscribes that the Assistant Secretary of Defense
(Special Operations and Low Intensity Conflict - ASD-SOLIC) has the Iead role within the Department of
Defense in countering domestic terrorist incidents where US forces may be used. 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 Department of Defense requires the development of local memorandums of agreement, or
understanding, between the installation, base, unit or port, and the appropriate local FBI office to preclude
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. The Attorney General
will also notify the Secretary of Defense who will advise the military commander. 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 to 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 Commander’s Responsibilities

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.
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 commander’s responsibilities are the same as for
domestic incidents -- with 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 installation’s response is also subject to agreements
established with the host nation. Such agreements, notwithstanding, the Joint Chiefs of Staff Standing

22-27
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. US military
assistance, if any, depends on the applicable status-of-forces agreement (SOFA) or memorandum of
understanding (MOU) and coordination through the US 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 US military forces depend on
the incident site, nature of the incident, extent of foreign government involvement, and the overall threat to
US security.

22-28
 CHAPTER 23
HUMANITARIAN AND FOREIGN DISASTER ASSISTANCE1

Humanitarian Assistance Programs (HAP) are programs 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. DoD support is limited in scope and duration. The assistance
provided is designed to supplement or complement the efforts of the host nation authorities or
2
agencies that may have the primary responsibility for providing humanitarian assistance. The key
in HAP is to properly analyze the mission by breaking it down into discrete parts and then matching
an authority to do a given task with the appropriate funds.

A central theme in HAP is funding. There are three general sources of funds for HAP as
described above. The primary source of U.S. government funds for humanitarian assistance is the
3
Economic Support Fund (ESF). This is a State Department controlled account and is funded by
the annual Foreign Operations Appropriations Act. The United States Agency for International
4
Development (USAID) administers ESF. The second source of HAP funding is the Overseas
Humanitarian, Disaster, and Civic Aid (OHDACA) Program funds. These are DoD Operations and
Maintenance (O&M) funds fenced specifically for DoD HAP activities. Funds expended under the
authority of 10 U.S.C. 401, 402, 404, 2547, and 2551 are allocable against this account. In
5
FY97 Congress appropriated $49 million for OHDACA programs. This is the primary DoD funding
source for HAP costs directly associated with a given project. The third, and often overlooked,
source of funds is straight O&M funds. This fund can be used for a whole myriad of purposes
relating to the training, transporting, equipping, and supplying of U.S. personnel. In some
instances, Congress has even authorized the military to use straight O&M to pay the incremental
6
costs of a foreign military. There will always be more HAP missions than OHDACA money
7
available to accomplish those missions. Therefore, it becomes important to only allocate those
expenses properly attributable to OHDACA funds. If an activity can be properly designed using
other funds (i.e., O&M), that enables the commander to stretch his or her OHDACA funds further
and thereby accomplishing more HAP projects.

There are three different authorities for DoD to conduct Humanitarian Assistance activities:
10 U.S.C. 401(a), 401 (c)(4), and 2551. Humanitarian and Civic Assistance (HCA) projects are
conducted "in conjunction with" military operations and are discussed herein below. The vast
majority of HCA activities are preplanned and conducted under 10 U.S.C. § 401(a).

1
Humanitarian assistance and disaster relief are operations other than war recognized in FM 100-5, Chapter 13, and
identified as "other civil support operations" in JOINT PUB. 3-07, JOINT DOCTRINE FOR MILITARY OPERATIONS OTHER THAN WAR
ch. 3 (16 June 1995). Multi-Service TTP for HA will be covered in Joint Pub 3-XX, MULTI-SERVICE PROCEDURES FOR FOREIGN
HUMANITARIAN ASSISTANCE OPERATIONS.
“U.S. military forces participate in three basic types of Humanitarian Assistance operations; those coordinated by
the U.N., those where the U.S. acts in concert with other multinational forces, or those where the United States responds
unilaterally.” JOINT PUB 3-07, supra, at III-5. For a discussion of U.N. operations, see generally, Chapter 25, infra.
2
JOINT PUBLICATION 1-02, DEP’T OF DEF. DICTIONARY OF MILITARY AND ASSOCIATED TERMS W/ JMTGM CHANGES (23 Mar. 94).

3
See also International Disaster Assistance, FAA 491 - 496, 22 U.S.C. 2292 - 2292q.

4
See FAA 531(b), 22 U.S.C. 2346(b) and Reorganization Plan No. 2, 6 (1979), reprinted in 22 U.S.C. A. 2318 (West
1996). See also FAA 531 - 4, 22 U.S.C. 2346 - 2346c. For further information on the ESF, see chapter 24, infra.
5
Congress authorized $54.5 million, but only appropriated $49 million. Compare Nat’l Def. Auth. Act FY 97, P.L. 104-201, tit.
III, subtit. A, 301(18), 110 Stat. 2422, 2475 (1996) with Dept. of Def. Approp. Act, FY 97, P.L. 104-208, tit. II, 110 Stat. 3323,
3339 (1996).

6
See, e.g., 10 U.S.C. 2010.
7
For example, in FY 96, SOUTHCOM nominated 259 HCA projects but only 121 were sourced. USSouthCOM SCJ3 slide
provided by SOUTHCOM SJA office on 21 March 1997.
23-1
 Planning for these events is ongoing, but the actual scheduling of them normally occurs at an
annual conference within each CINC’s AOR. The CINC coordinates their proposal with the local
ambassador and the host country’s national and local civilian authorities. This ensures that the
HCA activities in the ambassador’s country complements the social or economic assistance
8
provided by other U.S. agencies, especially the USAID. USAID has primacy in orchestrating U.S.
economic support to a given country. USAID accomplishes this through the use of ESF. However,
the CINC organizes his proposed HCA projects according to his regional strategic concept. This
9
prioritized list is forwarded to DoD. Ultimately, each preplanned HCA operation must be approved
10
by SECSTATE and reported to Congress. The incremental costs directly attributable to the
performance of HAP by DoD units is funded out of OHDACA. Training, equipment, transportation,
and all costs associated with the military exercise itself are usually allocated against the O&M
account. This approach has the additional benefit of ensuring that there is a substantial training
benefit for the military unit.

De Minimis HCA.

When enacting 10 U.S.C. 401, Congress wanted to give the commander limited
flexibility to perform minor unscheduled HCA. These types of the HCA activities must be
incidental to some other military exercise or operation and otherwise comply with the restrictions
11
contained in 10 U.S.C. § 401. In addition, the expenditure must be minimal. However,
12
Congress never formally defined a “minimal expenditure.” As a consequence, what constitutes
De minimis is frequently at issue. For example, during the Operation Uphold Democracy, the

8
See 10 U.S.C. 401(a)(2). The point that HCA projects complement the social or economic assistance of any other agency
cannot be over-emphasized. In 1984 GAO specifically criticized the military for failing to coordinate their efforts with USAID.
See The Honorable Bill Alexander, U.S. House of Representative, B-213137, 63 Comp. Gen. 422 (June 22, 1984) and The
Honorable Bill Alexander, House of Representatives B-213137 (Jan. 30, 1986).
9
DoD’s interface with DoS for humanitarian assistance and foreign disaster relief operations occurs through the Office of
Humanitarian and Refugee Affairs within the Office of the Deputy Assistant Secretary of Defense for Peacekeeping and
Humanitarian Assistance (DASD (PK/HA)). The Assistance Secretary of Defense for Special Operations and Low Intensity
Conflict (ASD(SO/LIC)) used to run the entire HAP. However, on 6 June 1996, Secretary of Defense Perry announced a
restructuring of functions within DoD impacting the HAP. Most of the HAP is now run by the DASD(PK/HA) who works for the
ASD(Strategy and Requirements). ASD(SO/LIC) retains responsibility for the humanitarian demining function and the anti-
personnel mine policy. See generally, Department of Defense Briefing, FED. NEWS SVC. (June 6, 1996), available in LEXIS,
NEXIS News Library, CURNWS File.
10
The preplanning for HCA operations has been described by some practitioners as fluid. Many times after the preplanning
process has gone full cycle, high priority, short notice requirements occur that force a reshuffling of the previously established
approved HCA projects. D EP’T OF DEF. INST. 2205.3, supra, at E.2., recognizes the fluidity of the HAP and provides guidance
on how to substitute one HCA project for another. If reshuffling of pre-programmed funds is not palatable, the Unified
Commander can request that the Chairman, Joint Chiefs of Staff (CJCS) use some of his CINC Initiative Funds (CIF). 10
U.S.C. 166a(b)(6) authorizes the CJCS to expend CIF for HCA projects. As an aside, the Joint Staff applies the guidance
imposed by 10 U.S.C. 401 to CIF HCA projects. CJCS INST. 7401.1, CINC INITIATIVE FUNDS s 4.h.(3) and 5.d. (11 June
1993)
11
Those additional restrictions are: The project must promote the specific operational readiness skills of the soldiers who
participate in the project. Operations readiness skills are skills possessed by service members that enable them to contribute
effectively to the capability of their unit and/or formation, ship, weapon system, or equipment to perform the missions or
functions for which it was organized or designed. See DEP’T OF DEF. DIR. 2205.2, supra, at D.8.
The unit cannot provide, directly or indirectly, HCA to any individual group, or organization engaged in military or paramilitary
activities. The project fits within one of the five authorized activities as defined in 10 U.S.C. 401(e).
See MEMORANDUM FOR DOD GENERAL COUNSEL, subj.: Amendment to 10 U.S.C. Section 401(c)(2) (28 Feb. 94).
Section 401(c)(2) referenced in the memorandum is the current section 401(c)(4) discussed, infra.
12
The legislative history does provide some guidance.
The conferees did not put a specific dollar ceiling on the definition of De minimis but wish to make it clear
they had in mind activities that have been commonplace on foreign exercises for decades. These would
include a unit doctor’s examination of villagers for a few hours with the administration of several shots
and the issuance of some medicines—but would not include the dispatch of a medical team for mass
inoculations. De minimus would also include the opening of an access road through trees and
underbrush for several (sic) hundred yards—but would not include the asphalting of any roadway.
th nd
H.R. CONF. RPT., 100 Cong., 2 Sess. 333 (1987)
23-2
 13
ACOM SJA established an arbitrary threshold of $1000 or one squad for one day per project.
Ultimately, the decision on what constitutes De minimis is the CINC’s call. They must evaluate the
overall cost of the military operation, the time spent on such project, and consider Congressional
14
intent. If an HCA activity is De minimis the funding is O&M, not OHDACA. The commander
need not coordinate or seek the approval of DOS for De minimis HCA.

Types of authorized HCA Activities.

HCA pursuant to 401 only authorizes military forces to conduct five types of projects.
This list is restrictive in nature, not illustrative:

a. Medical, dental, and veterinary care provided in rural areas of a country.

b. Construction of rudimentary surface transportation systems.

c. Well-drilling and construction of basic sanitation facilities.

15
d. Rudimentary construction and repair of public facilities.

e. 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
16
landmines.

Other Humanitarian Purposes.

13
Memorandum, Captain Steven A. Rose, Staff Judge Advocate, U.S. Atlantic Command, to Staff Judge Advocate, Joint
Task Force 190, para. 6 (6 Oct. 94). If one must provide a fixed figure for a deployed unit, this author advocates $2,500 as the
threshold. This figure matches the micropurchase threshold for contracts.
14
Dep’t of Def., Dir. 2205.2, Humanitarian and Civic Assistance (HCA) Provided in Conjunction with Military Operations Encl
1 1 (6 Oct. 94).

15
It is important to distinguish HAP construction from the exercise related construction provision of 10 U.S.C. 2805(c). For a
discussion on exercise related construction, see chapter 12, supra.

16
10 U.S.C. 401(e). The landmines provision, 10 U.S.C. 401(e)(5), was added by the National Defense Authorization Act
for Fiscal Year 1996, Pub. L. No. 104-106, tit. XIII, sec. 1313. In making this change, Congress amended 10 U.S.C. § 401(a)
to ensure that no member of the Armed Forces, while providing such assistance under this section engages in the physical
detection, lifting, or destroying of landmines (unless the member does so for the concurrent purpose of supporting a U.S.
military operation); or provides such assistance a part of a military operation that does not involve the Armed Forces.
This new provision generates several issues as drafted. First, one would suspect that the people being trained will be foreign
military forces. Such training seems inconsistent with the prohibition under 10 U.S.C. §401(a)(3) that prohibits direct or
indirect HCA to “any individual, group, or organization engaged in military or paramilitary activities.” A reasonable
interpretation is where the clearing activities are designed solely to benefit the local civilian population, and not designed for
military demining operations, these activities should be permitted. However, this issue is not free from doubt.
Second, demining activities must still promote the specific operational readiness skills of soldiers. Soldiers who possess
these skills are combat engineers, EOD personnel and certain special operations forces.
Third, the amendment does not provide an independent authority to donate equipment or supplies. Arguably, two exceptions
address this problem. During some HCA operations equipment becomes incorporated into improvements made to systems
or facilities in the country or otherwise consumed during the activity. Also, the Foreign Operations Export Financing, and
Related Programs Appropriations Act for 1997, Pub. L. 104-208, 110 Stat. 3448, 3547, § 556 provides: “Notwithstanding any
other provision of law, demining equipment available to the Agency for International Development and the Department of State
and used in support of clearing of landmines and unexploded ordnance for humanitarian purposes may be disposed of on a
grant basis in foreign countries, subject to such terms and conditions as the President may prescribe.” (Authorization is until
Oct. 23, 2000).
The impact of landmines cannot be overstated. In FY97, DoD internally fenced $20 of the $49 million in OHDACA funds for
demining operations. The reason is landmines are tremendously detrimental to a developing nations economy. They impede
repatriation of refugees and internally displaced persons, discourage agricultural activity, slow efforts to rebuilt the
infrastructure, overburden a nation’s health care system, and restrict relief efforts by NGOs and PVOs. In FY96, the U.S.
conducted demining operations in 11 countries. ASD(SO/LIC) Briefing slides from the Civil Affairs Conference (June 20,
1996). For a discussion of the problem and U.S. strategy to address the landmine problem, see OFFICE OF INTERNATIONAL
SECURITY AND PEACEKEEPING OPERATIONS, HIDDEN KILLERS, THE GLOBAL LANDMINE CRISIS: 1994 REPORT TO THE U.S.
CONGRESS ON THE PROBLEM WITH UNCLEARED LANDMINES AND THE UNITED STATES STRATEGY FOR DEMINING AND LANDMINE
CONTROL (1996).
23-3
 The third type of HAP authority is 10 U.S.C. 2551. Most OPLAWYERs have only viewed
this statute as the authority to transport government relief supplies to the needing country.
However, this authority is not so limited. It is provided for “transportation of humanitarian relief and
17
for other humanitarian purposes worldwide.” Conducting humanitarian assistance under this
authority is not subject to the limits of 10 U.S.C. 401(e), but the funding is still OHDACA.
Therefore, for example, under 2551 one can procure spare parts in support of DoD non-lethal
excess property provided under 2547.

DoD Purpose.

There is a fourth area that needs to be addressed. There is often confusion over what is
properly allocable against the O&M account when one of the activities being performed in-country
is one described in 10 U.S.C. 401(e) (i.e. well drilling). If the primary purpose of the activity is for
base operations, or for the benefit of the training soldiers, that cost is attributable to O&M, not
18
OHDACA. For example, suppose a well needs to be drilled to provide potable water for the
19
base camp and it is cheaper to drill the well than to ferry in water. The benefit is for the training
soldiers and not the local populace. This is an operational expense properly allocable against the
O&M account even though the well will be available to the local populace once our forces depart.

Transportation of Excess Supplies.

Besides providing soldiers for HAP, resource support is also commonly necessary. The
OPLAWYER needs to understand the authorities on what the U.S. can give and how it can
transport the needed items from wherever they are located to the area where they are needed.
The authority that allows the U.S. Government to provide humanitarian supplies is 10 U.S.C.
2547. This statute permits DoD to provide excess non-lethal supplies for humanitarian relief
20
purposes. Excess property can include construction and firefighting equipment. By excess,
21
Congress means property in the Defense Reutilization and Management Office channels. The
nonlethal supplies limitation thus prohibits transferring weapons, ammunition, or other equipment
22
and materials designed to inflict serious bodily injury or death. If the required items can be found
23
in the DoD inventory they shall be transferred to DoS who is responsible for their distribution.
However, 2547 only addresses supplying the needed goods, it does not provide the authority to
transport relief supplies to the needed region.

17
10 U.S.C. 2551(a)(emphasis added).
18
Before passage of 10 U.S.C. § 401, the GAO interpreted DOD's ability to provide HCA in conjunction with its other
operations in this way:
[T]he mere fact that O&M-funded activities create an incidental civic or humanitarian benefit
does not require that they be financed from other appropriations. Where, however, the type and amount
of activities are such that they fall within the scope of other appropriation categories . . . they must be
funded from those other sources. Thus, with that caveat, we agree . . . that no funding violation results
from bona fide training activities that result in a concurrent civic or humanitarian benefit.
See Honduras II at 38.
19
See DEP’T OF DEF. DIR. 2205.2, supra, at D.7.

20
10 U.S.C. 2552. There are severe restrictions on the disposition of excess firefighting and construction equipment.
Normally, state and local governments would first get access to this equipment. However, 10 U.S.C. 2552(b) specifically
exempts distributions of this type of equipment under the authority of 10 U.S.C. 2547.
21
An essential reference for excess personal property issues is the DEFENSE REUTILIZATION AND MARKETING MANUAL,
4160.21-M.

22
10 U.S.C. 2547(d). However, these items could be provided under other authorities. See, e.g., FAA 506, 22 U.S.C.
2318, and FAA 516, 22 U.S.C. 2321j.

23
10 U.S.C. 2547(b).
23-4
 There are two title 10 authorities that allow DoD to transport humanitarian relief supplies:
402 and 2551. Section 402 authority applies when relief supplies are supplied by non-
governmental and private voluntary organizations. It authorizes the transportation of donated
24
goods on a space-A basis under certain conditions. Once in country, the distribution itself is not
limited to DoD personnel. Any U.S. government agency, a foreign government, an international
organization, or a private nonprofit relief organization can distribute the relief supplies. Since
transportation is space-A only, there is no allocation of its cost against the OHDACA account
(although Congress requires an annual accounting of the origin, contents, destination and
disposition of all supplies transported under this authority). Section 2551 is the authority to
transport U.S. Government donated goods to a country in need. Unlike sections 402 or 2547, the
costs incurred in transporting U.S. government donated goods must be captured and allocated
against the OHDACA account.

FOREIGN DISASTER ASSISTANCE

The United States has a long and distinguished history of aiding other nation’s suffering
from natural or manmade disasters. In fact, the very first appropriation to assist a foreign
25
government was for disaster relief. The current statutory authority continuing this tradition is
26
located in the Foreign Assistance Act (FAA). For foreign disaster assistance, Congress granted
the President fiscal authority to furnish relief aid to any country “on such terms and conditions as
27
he may determine. The President’s 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
28
disaster. 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
29
should be the International Disaster Assistance Funds. In FY97, Congress authorized $190
30
million of no-year money for this account. The Administrator of the USAID controls these funds
because the President has designated that person as the Special Coordinator for International
31
Disaster Assistance. In addition, the President has designated USAID as the lead agency in
32
coordinating the U.S. response for foreign disaster. Normally these funds goes to 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 may ask for DoD assistance. Funding in
these cases comes from the International Disaster Assistance fund controlled by USAID. DoD is

24
Those condition are: the transported supplies must be in a useable condition and suitable for humanitarian relief;
there is a legitimate humanitarian need such supplies; the supplies will in fact be used for humanitarian purposes; and,
adequate arrangements have been made for their distribution in-country.
10 U.S.C. 402(b)(1).
25
This appropriation was for $50,000 to aid Venezuelan earthquake victims that occurred in 1812. All tolled over 25,000
th st
people died in that tragedy. Act of 8 May 1812, 12 Cong., 1 Sess., ch. 79, 2 Stat. 730.
26
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.

27
22 U.S.C. 2292(b).
28
E.O. 12966, 60 F.R. 36949 (July 14, 1995).

29
FAA 491 - 495K, 22 U.S.C. 2292 - 2292q.
30
See Foreign Operations, Export Financing, and Related Programs Appropriations Act FY 97, tit. II, 110 Stat. 3009, 3461.

31
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).
32
See generally, E.O. 12966, 60 F.R. 36949 (July 14, 1995).
23-5
supposed to receive full reimbursement from State Department when they make such a request.
DoD access to these funds to perform Disaster Assistance missions occurs by an Economy Act
33
transfer.

Natural or manmade disasters have increasing 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. Such operations
may be in the form of immediate and automatic response by US military commanders or in
response to foreign governments or international agencies. Examples include Operation
SUPPORT HOPE in Rwanda during the summer of 1994, Operation RESTORE HOPE in Somalia,
34
and Operation PROVIDE COMFORT in Northern Iraq. In addition, foreign disaster relief
operations can coexist with other operations, and arise in unexpected contexts. For example, in
September 1994, the US 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.

In these situations, the NCA may decide that military assets are needed but they do not
wish to use the International Disaster Assistance fund. Prior to 1994 no specific statutory authority
existed that allowed the expenditure of O&M funds to support massive disaster assistance
35 36
operations. In late 1994, Congress enacted 10 U.S.C. 404. This gives SECDEF statutory
authority to direct military forces to conduct foreign disaster relief. The O&M funds programmed
to support disaster assistance are the SECDEF’s contingency funds. In FY97 Congress gave the
37
SECDEF a $1.14 billion Overseas Contingency Operations Transfer Fund account. Should the
SECDEF, in consultation with SECSTATE, determine that U.S. military involvement is necessary
to save lives, he can use these Contingency funds to provide military transportation,
supplies, services and equipment needed to provide disaster relief. Another

33
31 U.S.C. 1535. What these funds can be used for is explained in FAA 636, 22 U.S.C. 2396. See also FAA 632, 22
U.S.C. 2392. Permissible use of these funds is quite broad and includes for example:
rent or lease of buildings; contracting with individuals for personal services abroad; purchase,
maintenance, operations, and hire of aircraft; purchase and hire of passenger motor vehicles purchase of
uniforms; and, ice and drinking water for use outside of the United States
For the limits of this authority, one should consult 22 U.S.C. 2396.
34
What makes these particular disasters difficult is they are non-permissive in nature. Traditionally, U.S. support for disasters
was at the specific invitation of the host nation. However, in these cases the United Nations essentially conducted a
humanitarian intervention. The authority to conduct humanitarian interventions, until about 1992, was not readily recognized.
Accord W. Michael Reisman, Humanitarian Intervention and Fledgling Democracies, 18 FORDHAM INT’L L.J. 794 (1995).
International law normally affords great deference to a state’s right to self-determination. See, e.g., U.N. CHARTER, arts.
2(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. . . .) and Declaration on the Inadmissibility of Intervention in the Domestic Affairs of
th th
States and the Protection of Their Independence and Sovereignty, U.N.G.A. Res. 2131, U.N. GAOR, 20 Sess., 1408 plen.
Mtg., Supp. No. 14 (1965)(“No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or
external affairs of any other State.”). However, there has emerged a growing recognition that a nation may intervene to
conduct humanitarian assistance. See Military and paramilitary Activities in and Against Nicaragua (Nicar. V. U.S.), 1986
I.C.J. 4 (27 June)(“There can be no doubt that the provision of strictly humanitarian aid to person or forces in another country,
whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to
international law.”). It seems clear from the practice of nations that humanitarian intervention pursuant to a Resolution of the
U.N. Security Council or of a regional organization, is an accepted practice. It also is directly supported by the rest of the
language in the U.N. CHARTER, art. 2(7)(emphasis added)(“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 . . .; but this principle shall not
prejudice the application of enforcement measures under Chapter VII.”).
35
The President possessed the authority to direct this pursuant to his Constitutional powers as commander-in-chief as well
as his power to conduct foreign affairs. U.S. C ONST., art. II, 2.

36 RD
Congress enacted section 404 by P.L. 103-37, 1412(a), Oct. 5, 1994, 108 Stat. 2912. See also S. RPT 282, 103
CONG., 2D SESS, pt. 2 (June 14, 1994).
37
Department of Defense Appropriations Act, 1997, tit. II, P.L. 104-208, 110 Stat. 3335 (1996).
23-6
source of potential Foreign Disaster Assistance funding is the OHDACA account. Use of OHDACA
funds should normally be limited to those activities related to organizing general policies and
programs necessary to conduct disaster relief operations and not for disaster relief activities
38
themselves. For example, the purchase and prepositioning of supplies for disaster assistance
purposes are attributable to the OHDACA account.

While funding authority is important, it should never obstruct the ambassador’s, or on

scene commander’s, decision to intervene for humanitarian reasons when time is of the essence.
The ambassador can, without prior consultation with SECSTATE, declare a disaster to
immediately release $25,000 of disaster assistance money. An on-scene commander has at least
two authorities to immediately act. First, a commander has always had the inherent authority to
39
act to save lives. Alternatively, the commander has the “and other humanitarian assistance
worldwide” language available to them under 10 U.S.C. 2551. The difference between the two
being acting under a commander inherent authority one spends straight O&M, while acting under
2551 is allocable against the OHDACA account. Furthermore, don’t forget there are a whole litany
of other legal issues confronting the deployed OPLAWYER in HAP. For example: What is the
status of our forces during the exercise? What environmental issues arise during road
40
construction? What claims provisions apply in this country?

Congress has given the President certain special funding authorities provided he makes
special findings. The authority authorizes the President to use other agencies money to
accomplish a mission normally within the purview of DoS. Two such authorities exist in the FAA:
41
506(a)(1) and 506(a)(2). Section 506(a)(1) requires the President to determine an unforeseen
emergence exists which requires immediate military assistance to a foreign country and the
emergency cannot be met by the Arms Export Control Act. If he makes such a determination then
Congress has authorized the President to drawdown from existing DoD stocks, and DoD services
and training up to $100 million per FY. Note, the authority does not allow for the procurement of
these article, services, or training. Section 506(a)(2) requires a Presidential Determination that it
is in our national interests to do so, Congress authorizes the President to draw down articles and
42
services of any agency of the U.S. for international disaster assistance.

Other statutes frequently associated with HCA and Foreign Disaster Assistance Operations
include:

10 USC § 166a authorizes "CINC Initiative Fund" funding through CJCS to combatant command
43
CINCs.
10 USC § 2010 authorizes SECDEF, in consultation with SECSTATE, to pay the incremental
44
expenses of developing countries participating in combined exercises.
10 USC § 2011 codifies "Special Forces exception" and authorizes USSOCOM or any unified or
specified CINC to pay the expenses of SOF assigned to that command in conjunction with

38
10 U.S.C. 404(d).

39
See DEP’T OF DEF. DIRECTIVE 5100.46, FOREIGN DISASTER RELIEF IV.C (Dec. 4, 1975).
40
This very issue arose in SOUTHCOM during an HCA operation where environmental groups objected to the U.S. building a
rudimentary road being built through a pristine portion of the jungle.

41
See 22 U.S.C. 2318.

42
FAA 506(a)(2) can also be used to support international narcotics control, migration and refugee assistance, and
POW/MIA remains recovery operations.
43
Congress appropriated only $28.5 million in FY 97 for the CINC initiative fund account. Department of Defense
Appropriations Act, 1997, Pub. L. No. 104-208, tit. II, 110 Stat. 3009, 3331 (1996).
44
The term “incremental expenses” means:
those reasonable and property costs of the goods and services that are consumed by a developing
country as a direct result of that country’s participation in a . . . military exercise with the United States,
including rations, fuel, training ammunition, and transportation. Such term does not include pay,
allowance, and other normal costs of such country’s personnel.
10 U.S.C. 2010(d).
23-7
training, and training with, armed forces and other security forces of friendly foreign countries if the
primary purpose of such training is to train the special operations forces of the combatant
45
command. The SOF training exception includes the deployment of Military Information Support
Teams (MIST), a PSYOP asset, and Civil Affairs personnel who can be very helpful in HCA and
other nation building activities.
10 USC § 1051 authorizes payment of personnel expenses of foreign participants in bilateral or
regional cooperation programs.

HUMANITARIAN AND CIVIC ASSISTANCE (HCA) REFERENCE MATERIALS

DoD Directive 2205.2, "Humanitarian and Civic Assistance (HCA) Provided in Conjunction
with Military Operations," October 6, 1994, establishes DoD policy for HCA

DoD Instruction 2205.3, "Implementing Procedures for the Humanitarian and Civic
Assistance (HCA) Program," January 27, 1995, implements the HCA program of DoD Directive
2205.2 by assigning responsibilities; establishing procedures for the nomination, justification, and
approval process for the Annual HCA Activity Plan; and mandates Status and After-Action Reports
by Unified Combatant Commanders.

EXAMPLES OF HA OPERATIONS MATERIALS

OPERATION PROVIDE COMFORT

Legal Issues

- Security: What force protection was appropriate? The British called the deployment
Operation Haven; the Australians, Operation Habitat. The British could act in self-defense
and respond to hostile intent, but could not act in defense of others (i.e., the US).
- What right did the U.S. have to secure Iraqi weapons and equipment? (Hostilities had
ended.)
- What parts, if any, of the Fourth Geneva Convention applied since the CTF was not an
occupying force?
- What rights did CTF have over international flights north of 36th parallel?
- What right to apprehend criminals or terrorists?
- "No claims/no compensation" policy was unrealistic (as shown when a small child was run
over...). A claims authority is needed. The Air Force was given single service claims
responsibility.
- Without a viable government in northern Iraq, what laws applied?
- Should there be standard ROE among CTF? At first there were different ROE for each
component force. After 1 May 91, a standard set was issued. However, tensions rose
when the US was not allowed to disclose its classified PROE (to Syrians, Egyptians, etc.).
- Military justice issues required inter-service coordination. (See JCS Pub 0-2.) Command
influence issue arose with guidance that "x" act should be handled in "y" fashion.
- Fiscal law issues: 1) financing the relief effort; 2) construction limitations for building
camps; 3) financing access road to base; 4) HCA; 5) refueling coalition aircraft; and 6)
supplying equipment.

OPERATION PROVIDE COMFORT

LEGAL CONCERNS CARD

TURKISH LAW AND JURISDICTION

- Military members are not exempt from Turkish Law or free from Turkish prosecution.
- Violations of Turkish law generally subjects you to jurisdiction of Turkish courts.

45
10 U.S.C. § 2011 also authorizes paying the expenses of deploying SOF for that training and the incremental costs of the
friendly country forces as a direct result of such training. Incremental cost under this section has the same meaning as
increment expenses in 10 U.S.C. 2010. Understand 10 U.S.C. § 2011 is NOT used to conduct HCA operations, but may be
used in conjunction with other HCA related activities. Frequently, SOF deploy and may conduct numerous operations funded
by several authorities.
23-8
- Turkey almost never waives its right to prosecute.
- Pretrial confinement always possible for all major offenses. Becomes a real probability in
case of fatality or sex offenses.
- Promptly notify the Law Enforcement Desk of any involvement with Turkish authorities
- Use IABVA 110-1 - card with base #s and request for assistance written in English and
Turkish (Carry this card at all times).
- Turkish authorities will allow such contact when respectfully requested.
- In appropriate cases, an attorney and an interpreter will respond to the scene or Turkish
police station.
- While waiting for the attorney, be courteous, polite and be advised it is considered
disrespectful to cross your legs or fold your arms in police stations.
- The NATO SOFA provides you essentially the same safeguards as our Bill of Rights;
however neither suspect nor witness have the right to refuse to provide a statement.

SPECIFIC CRIMES YOU NEED TO KNOW ABOUT:

- Drugs - Pretrial confinement likely. Little US can do to secure your release. Simple use or
possession: 3-5 years imprisonment
- Traffic Violations - Criminal offense of dangerous driving is possible. Fault is assessed in
1/8 increments. Even 1/8 at fault could result in trial and conviction.
- Black-marketing - Persons making any gift, sale, or exchange of BX, Class VI,
Commissary, APO, or any other item brought into Turkey tax free can be tried by Turkey
for smuggling and by US for violation of Art 92 of the UCMJ.
- Includes all items not just high value items. (Even those you plan to throw away).
- Antiquities - Must have museum certificate to remove antiques and other historical assets
from Turkey.
- Insult - Speaking in a demeaning or contemptuous manner.
- Serious offense to insult something which is part of Turkish heritage -Turkish flag, Ataturk
the founder of Turkey, the Turkish people as a whole or the government.
- Also includes defacing or treating with disrespect Turkish currency.
- Okay to bring an action against a person for theft but you may not say to the person "you
are a thief". (TRUTH IS NOT A DEFENSE).
- Law applies to both Turkish Nationals and Americans.
- Religious Proselytizing: Freedom of worship is acceptable, however, it is illegal to try to
convert others. Avoid religious conversations with Turkish Nationals or Non US Nationals.
- Sex Offenses - Statutory Rape - Under 18. Seduction of virgin with promise to marry -
age not relevant.
- Photography - Photographing military installations or official buildings prohibited. (Ask
permission prior to photographing Turkish Nationals).

ACCESS TO INCIRLIK AIR BASE

- Controlled by Turkish Military. Entry requires a Turkish gate pass.

- Personnel arriving by air should check with commanding officer for instructions. Personnel
arriving by surface must be sponsored by on base personnel who will have gate pass
approved prior to their arrival. TDY PERSONNEL MAY NOT DRIVE POVs FOR
PERSONAL USE EITHER ON OR OFF BASE! This restriction applies whether you have
an IL drivers license or a USAFE Form 181.
- Reason: A vehicle accident could delay your departure from Turkey from 2 months to 2
years.

CUSTOMS AND BEYANNAME

Beyanname Items - tax/duty free items which the Government of Turkey and the US have mutually
agreed to track from entry into or purchase in country to their proper transfer or departure from
Turkey.

23-9
- Due to the extensive paperwork this entails, as well as the impact a loss or theft would
have on an individual's ability to depart the country, TDY PERSONNEL ARE NOT
ALLOWED TO MAKE BEYANNAME PURCHASES. (Unlike Operation Desert Storm, an
exception to this policy has not been granted for Operation Provide Comfort).
- If a beyanname item was brought with you in country and placed on your orders, you must
present that item each time you leave the country (even temporary departures).
- Loss or theft of these should be reported immediately to the L.E. Desk and TMO's
Customs Liaison Office.

IMMIGRATION AND STAMPED ORDERS

- Check your orders or passport to make sure you were stamped in country.
- If not, contact the MAC Terminal, ext 66424.
- SAFEGUARD THESE ORDERS - required to present this order upon your departure. A
failure could result in a substantial delay in your departure.

TOURS

- Tourism is highly regulated. Only licensed agencies may organize and conduct tours.
MWR Tour Division is the only agency on base authorized to arrange tours.

CONTRACTS/INTERNATIONAL AGREEMENTS
- Ads seek the assistance from the CTF Provide Comfort Judge Advocate, 39TACG legal
office, or your servicing legal officer prior to entering into any type of contract or
agreement.
- Only certain levels of command have authority to even negotiate mutual understandings
with US as a Party.

TERRORIST THREAT
- Generally speaking Turkey is quite safe; yet, you should maintain a low profile.

CULTURAL SENSITIVITIES
- Both men and women should avoid wearing revealing or excessively tight clothing and
starting conversations with strangers.
- May generate harassment or lead to a more serious incident.
- avoid using the words sick or peach and the one hand gesture for okay.
- Disrespectful to cross legs with sole of foot facing another

WEARING YOUR UNIFORM OFF BASE FOR ANY REASON (OFFICIAL OR UNOFFICIAL) IS
PROHIBITED. BOTTOM LINE -- RESPECT TURKISH LAW, ASK QUESTIONS IF UNSURE OF
PROPER CONDUCT AND REMEMBER, YOU ARE A GUEST!

HAITI EMERGENCY -- DECLARATION OF DISASTER

Text of message from US Ambassador to Haiti to SECSTATE, 29 September 1994:

1. In 1991, the democratically elected government of Haiti was overthrown in a military coup. In
1993, the de facto leaders of Haiti violated the Governor's Island Accords, which had established a
timetable for the return of the legitimate government. The high level of corruption and repression in
the de facto regime have caused significant loss of life, human suffering, and the continued steady
decline of Haiti's political, social, and economic institutions. This constant decline and the refusal
of the de facto leaders to restore the legitimate government of Haiti combined to prompt the recent
international military intervention that will restore the constitutional government.

2. Haiti does not have the resources to cope with the current conditions, to restore order and
democratic institutions, and to relieve the human suffering prevalent in the country. I therefore
declare that a state of disaster exists in Haiti and determine that it is in the best interests of the

23-10
United states to provide relief, rehabilitation, and reconstruction assistance for the people and the
country of Haiti.

SAMPLE HUMANITARIAN ASSISTANCE SOFA

On 14 May 91 the US Ambassador to Bangladesh authorized JTF Sea Angel to negotiate

and conclude a temporary SOFA. The JTF SJA began negotiations the next day, and on 19 May
the President of Bangladesh signed the 3 page agreement. Following are the key provisions of the
agreement.

MOU BETWEEN BANGLADESH AND THE US

TO SPECIFY THE LEGAL STATUS OF
THE US PACIFIC COMMAND DISASTER RELIEF TASK FORCE

1. The purpose of this agreement is to specify the legal status of USPACOM Disaster Relief
TF personnel while temporarily present in Bangladesh in connection with its disaster relief mission.

2. It is the intent of the parties to this agreement to be bound by its terms and conditions and
to do whatever is necessary to implement the agreement.

3. With respect to members and equipment of the TF, Bangladesh agrees that:

a. TF personnel will be accorded status equivalent to that provided to members of the

admin & tech staff of the US Embassy under the Vienna Convention on Diplomatic
Relations 1961. They may enter and leave Bangladesh upon presentation of a US
Armed Forces ID card and individual or collective movement or travel orders. In
Bangladesh they shall enjoy freedom of movement and the right to undertake those
activities deemed necessary for the performance of their mission.

b. The US and the military personnel to whom this MOU applies shall be exempted from
taxation or charges under [the pertinent laws, statutes and ordinances].

c. US military personnel shall be accorded immunity from the jurisdiction of the courts of
Bangladesh and inviolability in respect of official acts in like manner to that of immunity
and inviolability accorded admin & tech staff of the US Embassy.

d. US military aircraft will be permitted to land at [the appropriate airports] for the
purposes of supplying equipment and personnel to the TF; and extracting TF personnel
and equipment. Such aircraft will be exempted from customs inspections under [the
pertinent acts and rules]. US military landing crafts may land at such location
necessary to accomplish the disaster relief mission.

4. The Embassy of the US shall provide the SEC of Foreign Affairs (Bangladesh) with the
name, rank and ID # of each member of the TF within 10 days of arrival. Upon their
departure, the US shall notify the SEC of Foreign Affairs (within 10 days).

5. This MOU shall enter into force upon signature with retrospective effect from the date of
the arrival of the TF and shall remain in force until revoked by either party with 10 days of
prior notice.

6. Done at the Ministry of Foreign Affairs, Dhaka this 20th day of May, 1991.

SIGNED: William B. Milam Abul Ahsan

US Ambassador Foreign Secretary,
Bangladesh

23-11
 Chapter 24
SECURITY ASSISTANCE MISSIONS

I. REFERENCES.

1. Foreign Assistance Act of 1961, 75 Stat. 434 (amended by more than 17 subsequent
pieces of legislation and codified at 22 U.S.C. §§ 2301-2349aa-9 (1988 & Supp)
(comprising ch. 32 ("Foreign Assistance"), subch. II ("Military Assistance and Sales"))
[hereinafter FAA].
2. Arms Export Control Act of 1976, 90 Stat. 734, (amended by more than 9 subsequent
pieces of legislation and codified at 22 U.S.C. 2751-2796c (1988 & Supp) (comprising
ch. 39 ("Arms Export Control")) [hereinafter AECA].
3. International Security and Development Cooperation Act of 1993, Pub. L. No. 99-83,
99 Stat. 261 (1985) (providing authorization for funded programs of security
assistance) [hereinafter IS & DC Act].
4. S. COMM. ON FOREIGN RELATIONS & HOUSE COMM. ON FOREIGN AFFAIRS, LEGISLATION ON
FOREIGN RELATIONS THROUGH 1994, VOLS. I--A and I--B, S. PRT. (sic) 104-22 (1995)
(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) [hereinafter LFR].
5. Foreign Operations, Export Financing, and Related Programs Appropriations Act,
1997, Pub. L. 104-208, 110 Stat. 3009 [hereinafter FOAA 97].
6. U.S. DEP’T OF STATE, CONGRESSIONAL PRESENTATION FOREIGN OPERATIONS FISCAL YEAR
1997 [hereinafter CPD 97].
7. DEP'T OF DEFENSE, MANUAL 5105.38-M, SECURITY ASSISTANCE MANAGEMENT MANUAL (1988)
(C7 5 Jan 96) [hereinafter SAMM].
8. DEP'T OF DEFENSE, DIRECTIVE 5132.3, POLICY AND RESPONSIBILITIES RELATING TO SECURITY
ASSISTANCE (Mar. 10, 1981).
9. DEP'T OF ARMY, REGULATION 12-15, SECURITY ASSISTANCE AND INTERNATIONAL LOGISTICS:
JOINT SECURITY ASSISTANCE TRAINING (JSAT) R EGULATION (28 Feb. 1990) (also
comprising SECNAVINST 4950.4 and AFR 50-29 of the same name) [hereinafter AR
12-15].
10. DEP'T OF ARMY, REGULATION 12-8, SECURITY ASSISTANCE-OPERATIONS AND PROCEDURES (21
Dec. 1990) [hereinafter AR 12-8].
11. DEP'T OF ARMY, REGULATION 12-1, SECURITY ASSISTANCE-POLICIES, OBJECTIVES, AND
RESPONSIBILITIES (7 Oct. 1988) [hereinafter AR 12-1].
12. DEFENSE INSTITUTE OF SECURITY ASSISTANCE MANAGEMENT, THE MANAGEMENT OF SECURITY
ASSISTANCE (Louis J. Samelson ed., 16th ed. 1996) [hereinafter DISAM].
13. Defense Institute of Security Assistance Management, THE DISAM, JOURNAL
(consisting of quarterly issues).
14. DEP'T OF ARMY, FIELD MANUAL 100-20, LOW INTENSITY CONFLICT, A-0 to A-15 (5
Dec. 1990) [hereinafter FM 100-20].
15. LTC Donald H. Dubia, International Law Note: International Training Activities, ARMY
LAW., June 1994, at 51-53.
16. Defense and Security Assistance Improvements Act of 1996, Pub. L. 104-164, 110
Stat. 1421 [hereinafter DSAIA].

1
“The men and women of our security assistance organizations are our strategic scouts. . . .”

II. THE PURPOSE OF THIS CHAPTER IS TO MAKE THE OPERATIONAL LAWYER FAMILIAR
WITH:

A. The policies and definition of security assistance.

B. The principal security assistance programs, their budgetary scope, and their statutory
bases.

C. The governmental organizations by which security assistance programs are carried out.

1
Military Posture: Hearings on FY 97 Defense Authorization Before the Senate Armed Services Comm., 104th Cong., 2nd
Sess. (1996)(Statement of Rear Admiral James B. Perkins III, Acting Commander-in-Chief United States Southern Command
on March 19, 1996), available in LEXIS, Legis library, Conrec file [hereinafter CINCSOUTH statement].

24-1
 D. Statutory prohibitions and other legal issues pertaining to security assistance that may be
encountered during military operations.

III. POLICIES AND DEFINITION.

A. Foundational Policies of Security Assistance.

1. To Achieve International Peace and Security.

a. Security Through the United Nations. "The Congress . . . reaffirms the

policy of the United States to achieve international peace and security
through the United Nations so that armed force shall not be used except for
2
individual or collective self-defense.”

b. The Rule of Law. "[A]n ultimate goal of the United States continues to be a
world . . . in which the use of force has been subordinated to the rule of
law; and in which international adjustments to a changing world are
3
achieved peacefully."

2. To Limit the Production and Transfer of Arms.

a. Arms Control. "[A]n ultimate goal of the United States continues to be a

world which is free from the scourge of war and the dangers and burdens
of armaments . . . . In furtherance of that goal, it remains the policy of the
United States to encourage regional arms control and disarmament
4
agreements and to discourage arms races."

b. Arms Races. "It is the sense of the Congress that [sales of arms by the
United States Government to friendly countries should] be approved only
when they are consistent with the foreign policy interests of the United
States, . . . [and] the extent and character of military requirement, . . . with
5
particular regard being given . . . [to] existing or incipient arms races."

c. The Third World. "[T]he President is encouraged to continue discussions

with other arms suppliers in order to restrain the flow of conventional arms
6
to less developed countries."

3. To Facilitate a Common Defense Among Friendly Nations.

2
FAA § 501, 22 U.S.C. § 2301.
3
AECA § 1, 22 U.S.C. § 2751.
4
Id. But See Richard F. Grimmett, Conventional Arms Transfers to Developing Nations, 1987 - 1994, DISAM J. (Fall 1995), at
59.
5
Id.
6
Id.

24-2
 a. Self-help and Mutual Aid. "The Congress finds that the efforts of the United
States and other friendly countries to promote peace and security continue
to require measures of support based upon the principle of effective self-
help and mutual aid. It is the purpose of [the Military Assistance and Sales
subchapter to the FAA] to authorize measures in the common defense
against internal and external aggression, including the furnishing of military
assistance, upon request, to friendly countries and international
7
organizations."

b. Interoperability. "The need for international defense cooperation . . . is

especially important, since the effectiveness of [friendly countries'] armed
forces to act in concert to deter or defeat aggression is directly related to
8
the operational compatibility of their defense equipment."

c. Cooperative Exchange. "[I]t remains the policy of the United States to

facilitate the common defense by entering into international arrangements
with friendly countries which further the objective of applying agreed
resources of each country to programs and projects of cooperative
exchange of data, research, development, production, procurement, and
logistics support to achieve specific national defense requirements and
9
objectives of mutual concern."

d. Comparative Advantage. "Because of the growing cost and complexity of

defense equipment, it is increasingly difficult and uneconomic for any
country, particularly a developing country, to fill all of its legitimate defense
10
requirements from its own design and production base."

4. To Foster Human Rights. "[A] principal goal of the foreign policy of the United
States shall be to promote the increased observance of internationally recognized
11
human rights by all countries."

5. Other Objectives.

a. National Interests of the United States. Although traditionally reluctant to

proclaim it, the United States generally exercises foreign policy in national
12
self-interest.

b. Domestic Economic Benefits.13

(1) Longer Production Lines. Sales of arms to foreign countries result

in economies of scale, reducing the cost of weapons systems
14
purchased by our own forces.

(2) Maintain Industrial Mobilization Base. By keeping production lines

open, the United States' ability to mount or sustain a military
15
response remains intact.

7
FAA § 501, 22 U.S.C. § 2301.
8
AECA § 1, 22 U.S.C. § 2751.
9
Id.
10
Id.
11
FAA § 502B(a)(1), 22 U.S.C § 2304(a)(1); DISAM, at 61, 566.
12
DISAM, at 33. See generally, Id. at 3 - 4; JACK C. PLANO & ROY OLTON, THE INTERNATIONAL RELATIONS DICTIONARY 34 (4th ed.,
1988) (characterizing national interests as "the most powerful political force operative in the world"); HENRY A. KISSINGER,
AMERICAN FOREIGN POLICY 204 (3rd ed., 1977) ("Foreign policy must start with security.").
13
See generally, William J. Perry, Policy on Letters Encouraging Foreign Governments to Procure from American Sources,
DISAM J. (Fall 1995), at 12.
14
DISAM, at 10 - 12.

24-3
 (3) Generate Foreign Exchange. By exporting arms, the United States
eases its balance of payments problems with foreign countries as
most security assistance money is spent in the United States.

c. Strategic International Goals.

(1) Sea Lanes, Overflight Routes, and Basing Rights. Ensure freedom
16
of access to sea lines of communication and overflight routes.
17
(2) Oil. Ensure supply of petroleum and other raw materials.

d. Fiscal Propriety. Ensure U.S. government appropriations are being spent in

accordance with the will of the Congress.

B. Defining Security Assistance.

1. A Need for the Term. Every administration since President Truman's has featured
formal, large-scale programs of military and economic aid administered in part with
the assistance of U.S. advisers and trainers. The modern programs and
institutions creating the need for an umbrella term to describe them began with the
18
Greece-Turkey Aid Act of 1947.

2. Coining the Term. During the Nixon Administration, the term "security assistance"
came to denote U.S. arms transfers, economic aid, and collective security
19
programs intended to enhance U.S. security by helping foreign friendly nations.

3. Defining the Term Today. "Groups of programs authorized by the Foreign

Assistance Act of 1961, as amended, and the Arms Export Control Act of 1976, 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
20
or cash sales in furtherance of national policies and objectives."

4. Security Assistance v. Foreign Assistance. Whereas "security assistance"

describes the programs authorized under the "Military Assistance and Sales"
subchapter of U.S. Code chapter 32, see 22 U.S.C. §§ 2301-2349aa-9, "foreign
assistance" describes both "Military Assistance and Sales" and numerous other
programs authorized as "International Development" programs. See 22 U.S.C. §§
2151-2349aa-9 (authorizing aid for foreign agricultural sectors, hospitals,
disadvantaged children, narcotics control, disaster assistance and other
21
recipients).

15
Id.
16
DISAM, at 11 - 12; AR 12-15 at ¶ 2-2. A recent example of Security Assistance promoting strategic interests is Jordan
allowing the stationing of three dozen U.S. fighters to conduct training and flights over Iraq. U.S. forces will begin training
the Jordanian Air Force on the F-16 aircraft they are to receive from the U.S. under a security assistance program. See
Douglas Jehl, Jordan Allowing U.S. to Use Its Air Base for Flights Over Iraq, N.Y. TIMES, Apr. 9, 1996, at A9.
17
DISAM, at 11.
18
See Id. at 15 - 16.
19
See Id. at 21.
20
DEP'T OF DEF., JOINT PUB. 1-02, DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS 327 (1 Dec. 1989)
[hereinafter JP 1-02]. See also SAMM, at 101-1, B-15 (defining term essentially the same way); FAA § 502B(d)(2), 22 U.S.C. §
2304(d)(2) (naming specific statutory programs and omitting express reference to national policies and objectives); CPD 97
(Identifying component programs that require funding); OFFICE OF MANAGEMENT AND BUDGET, THE BUDGET OF THE UNITED
STATES GOVERNMENT 199X (comprising a budgetary category entitled "international security assistance").
21
DISAM, at 41 - 2.

24-4
 5. Related Terms. International Logistics; International Programs; International
Logistic Support; Collective Security; International Defense Cooperation; Military
22
Assistance; Military Export Sales; Arms Transfers.

IV. Security assistance programs. There are currently seven major security assistance programs.

A. Foreign Military Sales (FMS) Program and Foreign Military Construction (FMC) Program.

1. Concept. Eligible recipient governments or international organizations purchase

defense articles, services, or training (or design and construction services) 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. Furthermore, FMS cases must be
23
managed at no cost to the U.S. Government.

2. Scale. 98 foreign countries and international organizations purchased $9.05 billion

in FY 1995, and are expected to purchase $9.6 billion in FY 1996 and $9.5 billion in
24 25
FY 1997. Congress appropriates no funds for this program.

3. Statutory Authority. AECA §§ 21-22, 22 U.S.C. §§ 2761-62 (authorizing FMS);

AECA § 29, 22 U.S.C. § 2769 (authorizing FMC).

4. Governing Regulations. SAMM.

26
5. Administering Agency. Department of Defense (DoD).

B. Foreign Military Financing Program (FMFP).

1. Concept. Eligible recipient governments or international organizations purchase

U.S. defense articles, services, or training (or design and construction services)
through FMS/FMC or Direct Commercial Sales channels with aid of Congressionally
27
appropriated grants and loans.
28
2. Scale. Congress appropriated $3.764 billion for FY 1997.

a. $3.224 billion in grants, of which $3.1 billion goes to Israel and Egypt.

b. $540 million in loans to Turkey and Greece.

c. $30 million in grants to Poland, Hungary, and the Czech Republic

29
d. FMFP discretionary grant funds are less than $100 million.

22
Foreign Internal Defense. See FM 100-20 at Glossary-3; JP 1-02, at 150; DISAM, at 693. See generally, DISAM, at 42-6.
23
DISAM, at 47; SAMM, at 1301-1.
24
See CPD 97, at 455-7. DISAM, at 47. See also DEFENSE 95, Issue No. 4, at 34 - 37, for a country by country breakdown of
the foreign assistance program dollars for FY 94 (FMS and IMET) and FY95 (FMFP).
25
DISAM, at 47. It is paId for by charging the recipient country an administrative surcharge to pay for the costs of
administering the program, including most personnel costs.
26
See Ex. Order No. 11958, Jan. 18, 1977, §§ 1(d) & 2, 42 Fed. Reg. 4311.
27
DISAM, at 47.
28
FOAA 97, tit. III, and Add’l Approp., tit. V, 110 Stat. 3009, 3449. For information on previous FMFP authorizations, See LFR,
at 587 - 9; DISAM, at 47 - 8; CPD 97, at 489 - 91.
29
$94 million in discretionary grant monies remain after earmarks. Out of this must come $23.25 million for operating
expenses. However, an additional $7 million will be shifted from the Assistance for Eastern Europe and the Baltic States
and the Assistance for the New Independent States accounts into the FMFP account. Therefore, real discretionary FMFP is
only $77.75 million. Congress prohibited, except for the clearance of landmines and unexploded ordnance, use of FMFP

24-5
 3. Statutory Authority. AECA §§ 23-24, 22 U.S.C. §§ 2763-64.

4. Governing Regulations. SAMM.

5. Administering Agency. DoD, with provisions for consultation with DoS and
30
Department of Treasury.
31
C. Direct Commercial Sales (DCS).

1. Concept. Eligible governments or international organizations purchase defense

articles or services under a Department of State-issued license directly from U.S.
32
industry. No management of the sale by DoD occurs (unlike FMS).

2. Scale. DCS deliveries for FY 1997 are projected to totaled about $11.4 billion. For
33
FY 1996 the estimate is $17.8 billion. Congress appropriates no funds for this
program.

3. Statutory Authority. AECA § 38, 22 U.S.C. § 2778.

4. 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
34
AECA §§ 38 and 47(7) and are therefore strictly controlled.
35
5. Administering Agency. Departments of State, Commerce, Treasury.

D. International Military Education and Training (IMET) Program. 36

1. Concept. Provide training in the United States, in overseas U.S. military facilities,
37
and in participating countries on a grant basis.

2. Scale. Congress appropriated $43.48 million for FY 1997. Indonesia and

38
Guatemala may receive E-IMET only. 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
39
civilian personnel).

funds in FY 97 for Zaire, Sudan, Guatemala, and Liberia. Presidential certification is required before FMFP funds may be
used for Guatemala. FOAA 97, § 567.
30
See Ex. Order No. 11958, §§ 1(e) & 2, Jan. 18, 1977, 42 Fed. Reg. 4311.
31
For a comparison of the differences between FMFP and DCS, See DISAM, at 47-8, 65-6, 669 - 673.
32
DISAM, at 48.
33
CPD 97, at 464.
34
See also SAMM, at secs. 503 and 601. See generally, DISAM, at 47 - 8, 65 - 6.
35
See Ex. Order 11958, Jan. 18, 1977, §§ 1(l)(1) & 2, 42 Fed. Reg. 4311.
36
For a thorough discussion of the IMET program, See JOHN A. COPE, INTERNATIONAL MILITARY EDUCATION AND TRAINING: AN
ASSESSMENT (Oct 1995)[McNair Paper No. 45, NDU].
37
DISAM, at 49.
38
This is an increase of $5 million from last years appropriation and $18 million more than FY 95. See LFR, at 586 and
DISAM, at 46.
This is the second year since 1993 that Indonesia has received IMET funding. Funding was cut off in FY 93
because of human rights violations involving the massacre of 100 civilians on the Indonesian island of East Timor. See
GENERAL ACCOUNTING OFFICE, SECURITY ASSISTANCE: SHOOTING INCIDENT IN EAST TIMOR, INDONESIA, NSIAD-92-132FS (Feb. 1992).
However, Indonesia may only receive E-IMET training. See DSAIA, § 111, 110 Stat. 1427
Guatemala can receive E-IMET funding only if the President certifies that the Guatemalan military is cooperating
with efforts to resolve human rights abuses. FOAA 97, § 567. Congress prohibits use of any IMET funds for Zaire. FOAA 97,
tit. III, 110 Stat. 3484. For a good discussion on E-IMET, See Robert J. Kasper, Expanded International Military Education
and Training: Matching Military Means to Policy Ends, DISAM J. (Summer 1994), at 77.

24-6
 3. Statutory Authority. FAA §§ 541-45, 22 U.S.C. §§ 2347-47d.

4. Governing Regulations. AR 12-15; SAMM, at ch. 10.

40
5. Administering Agency. DoD. The Defense Security Assistance Agency (DSAA)
has overall responsibility within DoD for implementing IMET.41 The Naval Justice
42
School coordinates E-IMET. IMET is widespread in nature. IN FY97 IMET will
operate in 128 nations in every combatant CINCs area of operations and utilizes
scores of instructors from all the services.

E. Economic Support Fund (ESF).

1. 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
43
planning.

2. Scale. Congress appropriated $2.34 billion for FY 97, of which $2.015 billion goes
44 45
to Israel and Egypt. This is the same amount as appropriated in FY 96.

3. Statutory Authority. FAA §§ 531-35, 22 U.S.C. §§ 2346-46d.

4. Administering Agency. Department of State, to be exercised in cooperation with

the Director of the United States International Development Cooperation Agency
46
and USAID.

F. Peacekeeping Operations (PKO).

1. 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.
47
2. Scale. Congress appropriated $65 million for FY 97. This is a $5 million
48
reduction from FY 96.

Austria, Finland, the republic of Korea, Singapore and Spain are no longer eligible to receive IMET. These
countries are identified as high income nations and must therefore purchase IMET-like training using FMS. See DSAIA, §
112, 110 Stat. 1427 - 8 (amending FAA § 548).
39
LFR, at 208; DISAM, at 50, 553 - 6.
40
See Ex. Order 12163, Sept. 29, 1979, §§ 1-301(a) & 1-801(b), 44 Fed. Reg. 56675, 56678, eff. Oct. 1, 1979.
41
DSAA is an independent operating agency of DoD that plans, administers, supervises delivery of defense articles and
services to foreign countries.
42
See Christopher Rowland, Weapons of peace: Navy lawyers use training, tours to encourage human rights in developing
nations, THE PROVIDENCE J.-BULL., Jan. 6, 1996, at 1A, available in LEXIS, News Library, CURNWS file.
43
DISAM, at 50.
44
FOAA 97, tit. II, 110 Stat. 3454. Of the remaining funds, Congress imposed additional limitations. ESF for Turkey cannot
exceed $33.5 million. FOAA 97, § 588, 110 Stat. 3576. Not less than $15 million will be provided to Cyprus to be used to
reduce tensions between the Greek Cypriot majority and Turkish Cypriot minority. FOAA 97, tit. II, 110 Stat. 3459. Not less
than $2.5 million is to be provided to Burma to support activities along the Burma-Thai border, that promote democracy and
provide humanitarian assistance to Burmese refugees. Id. But See Id, at § 570 ESF can be used to provide training to
strengthen the administration of justice in Latin America and the Carribean, particularly Bolivia, Colombia and Peru. See
FOAA 97, § 543, 110 Stat. 3537.
45
FOAA 96, tit. II, 110 Stat. 710 -1. See generally, DISAM, at 50.
46
See Ex. Order 12163, Sept. 29, 1979, § 1-206(a)(6), 44 Fed. Reg. 56678. See also DISAM, at 45.
47
FOAA 97 (add’l appropriations), tit. V, ch. 7, reprinted in H.R. REP. NO. 863, 104th Cong., 2d Sess. 536 (1996).
48
See FOAA 96, tit. III, 110 Stat. 718. In FY 95, $75 million was appropriated for PKO. FOAA 95 authorized transferring
$850K from the PKO account to IMET. Consequently the total PKO funding used was $74.15M. See CPD 96, at 208 and
LFR, at 589. See generally, DISAM, at 47 (provides slightly different figures). $16.09M for MFO-Sinai; $6.15M for PKOs in

24-7
 3. Statutory Authority. FAA §§ 551-53, 22 U.S.C. §§ 2348-48c.
49
4. Administering Agency. Department of State.

G. Nonproliferation and Disarmament Fund (NPD).

1. Concept. Help reduce and restructure Russia's strategic nuclear force, support the
50
denuclearization of the independent states of the former Soviet Union; strengthen
international safeguards efforts, strengthen export control and nuclear smuggling
51
efforts; and promote arms control and security in regions of tension.
52
2. Scale. Congress appropriated $15 million for FY 97.

3. Statutory Authority. 22 U.S.C. §§ 5851-61 codifying tit. V of 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).53
54
4. Administering Agency. Department of State.

V. UNITED STATES ORGANIZATIONS FOR SECURITY ASSISTANCE.

A. The Legislative Branch. As the branch vested with the legislative power, see U.S. Const.
Art. I, § 1, with the power to regulate commerce with foreign nations, see U.S. Const. Art. I,
§ 8, and with the power to dispose of U.S. property, see U.S. Const. Art. IV, § 3, the
55
Congress influences security assistance in many ways.

1. Development, consideration, and action on legislation to establish or amend basic

security assistance acts:

a. House of Representatives Committee on International Relations (formerly

Foreign Affairs) has security assistance legislation responsibility;

b. Senate Committee on Foreign Relations has security assistance legislation

responsibility;

2. Enactment of appropriations acts (both chambers of Congress have Subcommittees

on Foreign Operations in the Committees on Appropriation, which have security
assistance legislation responsibility);

3. Passage of Joint Continuing Resolutions to permit the incurring of obligations to

carry on essential security assistance program activities until appropriation action is
complete;

4. Conduct hearings and investigations into special areas of interest, to include issuing
instructions for special reviews to the following Congressional offices:

Africa; $4M for Conference on Security and Cooperation in Europe (OSCE); Central and Eastern Europe PKOs $3.71M;
$27.2 M for MFO-Haiti, and $17M for sanction enforcement. CPD 96, at 208.
49
See Ex. Order No. 12163, Sept. 29, 1979, §§ 1-201(a)(7), 1-701(d), and 1-801(c), 44 Fed. Reg. 56673, 56678.
50
The “independent states of the former Soviet Union” mean Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan. FREEDOM Support Act, § 3, reprinted in I-
B LFR, at 51. However, only Russia, Belarus, Ukraine, and Kazakhstan have retained a nuclear capability.
51
See CPD 97, at 143 - 4.
52
FOAA 97, tit. II. This is a $5 million reduction from last year’s appropriation. FOAA 96, tit. II, 110 Stat. 716. In FY 94 and FY
95 Congress only appropriated $10 million for this Program. See FOAA 95, LFR, at 586.
53
Congress made clear in the legislative history that these funds are not to be diverted for other purposes such as mil-to-
mil contacts or housing for Russian officers.
54
See Memoranda of president, 57 Fed. Reg. 3193 (Dec. 30, 1992).
55
See DISAM, at 83 - 6; U.S. General Services Administration, UNITED STATES GOVERNMENT MANUAL 1996.

24-8
 a. General Accounting Office (GAO). GAO audits and evaluates security
assistance programs and activities in response to requests from Congress,
56
its Committees, Members, and Staffs. The GAO is directed by
Comptroller General of the United States, who is appointed by the
President for a term of 15 years.

b. Congressional Budget Office (CBO). CBO provides Congress with basic

budget data and with analyses of alternative fiscal, budgetary, and
programmatic policy issues.

c. Congressional Research Service (CRS), Library of Congress. CRS

accomplishes special studies for Congress on, among other topics, security
57
assistance.
58
5. Review proposed arms transfers (i.e., under FMS or DCS).

6. Give advice and consent to ratification of treaties which may have security
assistance implications.

B. The Executive Branch. As chief executive and officeholder responsible for foreign policy,
see U.S. Const. Art. II, §§ 1-3, the President presents the recommended annual U.S.
security assistance program/budget to the Congress for its consideration and executes this
59
program once it becomes law.
60
1. Executive Office of the President.

a. National Security Council (NSC). The NSC advises the President with
respect to the integration of domestic, foreign, and military policies relating
to national security. According, the NSC advises the President on many
security assistance issues and reviews both the annual budget proposal
and most large proposed arms transfers.

b. Office of Management and Budget (OMB). The OMB assists the President
in preparing the annual U.S. Government budget and in formulating the
nation's fiscal program. OMB is interested in the amounts of the
appropriations, the apportionment of appropriated funds for obligation and
expenditure, and the impact security assistance programs have on
government manpower, facilities, and performing accounts.
61
2. Department of State (DoS) and Related Agencies.

a. The Secretary of State. Has overall responsibility for continuous

62
supervision and general direction of security assistance programs.

56
See, e.g., To The Honorable Bill Alexander, U.S. House of Representatives, B-213137, 63 C OMP. GEN. 422 (1984)
[hereinafter Honduras I].
57
See, e.g., RICHARD F. GRIMMETT, CONGRESSIONAL RESEARCH SERVICE DOCUMENT 94-612 F, CONVENTIONAL ARMS TRANSFERS TO
THE THIRD WORLD, 1986-1993 (1994).
58
See DISAM, at 85. Congress Identifies those items is wants to review either by naming the certain end item or by
Identifying a certain cost ceiling.
59
Id. at 83.
60
Id. at 86 - 7.
61
For a good overview of the Department of States and related agencies, See D EP’T OF STATE, DISPATCH, Vol. 6, Suppl. No. 3,
May 1995. See also DISAM, at 87 - 90.
62
FAA § 622, 22 U.S.C. § 2382; AECA § 2, 22 U.S.C. § 2752.

24-9
 b. Under Secretary of State for Arm Control and International Security Affairs.
Serves as the principal adviser to the Secretary of State and focal point for
security assistance matters within DoS. Chairs an interagency group, the
Security Assistance Program Working Group (SAPRWG), which makes
recommendations to the Secretary on security assistance matters.

c. Bureau of Political-Military Affairs. Advises the Secretary on issues where

foreign policy and defense policy intersect. Serves as the principal liaison
and contact between DoS and DoD. Assists the Secretary in carrying out
his responsibility for supervision of security assistance programs involving
the military. Includes the Office of Defense Relations and Security
Assistance (PM/DRSA), which is responsible for day-to-day direction of the
Security Assistance Program and for budget preparation.

d. Assistant Secretary of State for Democracy, Human Rights and Labor. Is

responsible for reviewing proposed security assistance programs and sales
63
requests in light of their impact on human rights in the country concerned.
Prepares the "Country Reports on Human Rights Practices" that must be
64
submitted by the Secretary of State to Congress each year.

e. Geographic Bureaus. Are responsible for U.S. foreign affairs activities in

the major regions of the world. The Bureaus have a direct role in security
assistance budget formulation and day-to-day implementation.

f. Agency for International Development (AID). AID is part of the International

65
Development Cooperation Agency, whose Director reports to the
66
President and coordinates all U.S. development-related activities. Among
67
other duties, AID administers the ESF.

g. Arms Control and Disarmament Agency (ACDA). Reviews FMS cases

meeting a dollar threshold for advance notification to Congress, see AECA
68
§ 36(b)(1), 22 U.S.C. § 2776, as well as DCS transactions.

h. U.S. Diplomatic Missions. The missions have instrumental roles in security

69
assistance. The Ambassador (or Chief of the U.S. Diplomatic Mission), is
the personal representative of the President and reports to the President
through the Secretary of State. He or she heads the "country team," which
may include the Defense Attaché, the Chief of the U.S. Security Assistance
Organization (SAO), the political and economic officers, and other embassy
70
personnel, as desired by the Ambassador.

3. Department of Treasury. As financial agent for the government, the Treasury has a
fiduciary interest in the appropriated security assistance programs and in the
management of the Foreign Military Sales Trust Fund Account. As the supervising
department of the U.S. Customs Service, the Treasury is responsible for reviewing
71
arms control export licenses at the U.S. port of departure.

63
22 U.S.C. § 2651a(c)(2).
64
See FAA §§ 116(d), 502B(b), 22 U.S.C. § 2304(b).
65
See Ex. Order No. 12163, Sept. 29, 1979, 44 Fed. Reg. 56673, § 1-103.
66
See FAA § 101, 22 U.S.C. § 2151(c).
67
DISAM, at 89.
68
See AECA § 38, 22 U.S.C. § 2778. DISAM, at 89.
69
See AECA § 2, 22 U.S.C. § 2752 (c).
70
See generally, 22 U.S.C. § 3927; DISAM, at 89.
71
DISAM, at 91.

24-10
 4. Department of Commerce. Manages a "commodity-control" list consisting of
nonmilitary items traded to foreign countries that might have military application.
Also manages technology transfer issues implicating private sector exports. The
Department influences security assistance programs by providing input on these
72
matters to the Departments of Defense and State.

5. Department of Defense. Has the greatest involvement in security assistance of any

department within the Executive Branch. DoD expends approximately 20,000 man
73
years per year on security assistance.

a. Secretary of Defense. Has responsibility for procuring military end-items,

74
and training foreign military and related civilian personnel.

b. Office of the Secretary of Defense.

(1) Under Secretary of Defense for Policy (USDP). As adviser and

assistant to the Secretary, exercises overall direction, authority,
and control over security assistance through the various Assistant
Secretaries of Defense.

(2) Assistant Secretary of Defense (International Security Affairs)

(ASD/ISA). The office within DoD which is responsible for
supervising security assistance programs with all countries except
those of the former Soviet Union. Supervises the Director of the
Defense Security Assistance Agency (DSAA), the agency which
interprets executive policy and develops DoD security assistance
75
policies and programs.

(3) Other Officials. Include the Assistant Secretary of Defense

(Nuclear Security and Counterproliferation), Under Secretary of
Defense (Acquisition and Technology), Assistant Secretary of
Defense (Economic Security), Director of Defense Research and
Engineering, and Under Secretary of Defense (Comptroller).

(4) Other Agencies. Include the Defense Finance and Accounting

Service-Denver Center, Deputy for Security Assistance (DFAS-
DE/I), Defense Logistics Agency (DLA), Defense Contract Audit
Agency (DCAA), Defense Language Institute English Language
Center (DLIELC), National Imagery and Mapping Agency (NIMA),
Defense Institute of Security Assistance Management (DISAM).

c. Joint Staff, Unified Commands, and Overseas Activities.

(1) Joint Chiefs of Staff. Pertinent functions include coordinating

security assistance with military plans and programs and
recommending security assistance organizational and manpower
requirements for Security Assistance Organizations.

72
Id.
73
DISAM, at 92 - 102.
74
FAA § 623, 22 U.S.C. § 2383; AECA § 42(d), 22 U.S.C. § 2791(d).
75
See DEP'T OF DEF., DIRECTIVE 5111.1, UNDER SECRETARY OF DEFENSE FOR POLICY (July 14, 1992); DISAM, at 92; DoD Dir.
5132.3; DoD Dir. 5105.38.

24-11
 (2) Unified Commands. Five of the unified commands have broad
responsibilities for the conduct of the U.S. security assistance
program within their respective regions. Duties included
commanding SAOs in matters not within the responsibility of
Ambassadors.

(3) Security Assistance Organizations (SAOs). The term

encompasses all DoD elements located in a foreign country with
assigned responsibilities for carrying out security assistance
76
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
contract administration of country security assistance programs.
The Chief of the SAO answers to the Ambassador, the
Commander of the Unified Command, and the Director, DSAA.

d. The Military Departments.

(1) Secretaries of the Military Departments. Advise the SECDEF on

all security assistance matters relating to their Departments.
Functions include conducting training and acquiring defense articles.

(2) Department of the Army. Consolidates its plans and policy

functions under the Assistant Deputy Chief of Staff for Logistics
(Security Assistance). Operational aspects are assigned to Army
Material Command. The executive agent for which is the U.S.
77
Army Security Assistance Command.

(3) 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 in the Naval Education and Training Security Assistance
Field Activity in Pensacola, Florida.

(4) 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.

C. The Judiciary. Normally, the courts have limited involvement in the day-to-day activities of
security assistance.78

VI. PROHIBITIONS AND OTHER POTENTIAL LEGAL ISSUES.

A. Unauthorized Furnishing of Defense Articles and Services.

76
See FAA § 515, 22 U.S.C. § 2321i.
77
Cases involving material or services are prepared by the responsible major subordinate command. Training cases are
the responsibility of Training and Doctrine Command (TRADOC).
78
But See Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983) (holding that all statutory "legislative veto"
provisions are an unconstitutional infringement of the executive power and thereby invalidating several clauses of the
AECA); United Technologies Corp. v. U.S., 830 F.2d 1121 (Fed. Cir. 1987) (involving an appeal by a government contractor
seeking FMS factor for sale of F-16 aircraft engines to European Participating Governments). See also DISAM, at 86.

24-12
 1. Congressional Purpose. Defense articles and services should be sold or granted to
friendly foreign countries or international organizations through programs
79
enumerated in the FAA or AECA.

2. The Purpose, Time, and Amount Rules. Obligations must be for a proper purpose,
must occur within the time limits applicable to the appropriation, and must be within
the amounts established by Congress. Accordingly, security assistance programs
that furnish defense articles and services must not be supported by appropriations
80
intended to be used elsewhere.

3. Broad Definitions of "defense articles" and "services."

81
a. "'Defense article includes--

(1) any weapon, weapons system, munition, aircraft, vessel, boat or

other implement of war;

(2) any property, installation, commodity, material, equipment, supply,

or goods used for the purposes of furnishing military assistance [or
making military sales];

(3) any machinery, facility, tool, material, supply, or other item

necessary for the manufacture, production, processing, repair,
servicing, storage, construction, transportation, operation, or use of
any article listed in [(1), (2), or (4)];

(4) any component or part of any article listed in [(1), (2), or (3)]."

b. "'Defense service includes any service, test, inspection, repair, publication,

or technical or other assistance or defense information used for the
purpose of furnishing military assistance, but does not include [military
educational and training activities under the IMET program or design and
82
construction services under the FMC program]."

B. Unauthorized Training of Foreign Personnel.

1. Congressional Purpose. Training of foreign military forces should occur through the
83
IMET, an FMS case, or some other specifically authorized program.

2. The Purpose, Time, and Amount Rules. In accordance with the rules stated in A.2.
above, security assistance programs that furnish training must not be supported by
appropriations intended to be used for the operation and maintenance (O&M) of
84
United States forces.

79
See, e.g., FAA § 503, 22 U.S.C. § 2311; AECA §§ 1-3, 22 U.S.C. §§ 2751-53 (elaborating Congressional intent).
80
See, e.g., 31 U.S.C. §§ 1301(a), 1552, 1341(a).
81
See FAA § 644(d), 22 U.S.C. § 2403(d); AECA § 47(3), 22 U.S.C. § 2794(3); DISAM, at 205.
82
FAA § 644(f), 22 U.S.C. § 2403(f); AECA § 47(4), 22 U.S.C. § 2794(4); DISAM, at 206.
83
See e.g., FAA §§ 541-45, 22 U.S.C. §§ 2347-47d (authorizing IMET); AECA § 21, 22 U.S.C. § 2761 (authorizing FMS, and
contemplating that "training" will be among the "defense services" sold); The Honorable Bill Alexander, House of
Representatives, B-213137, Jan. 30, 1986 (unpublished GAO opinion) [hereinafter Honduras II].
84
See, e.g., 31 U.S.C. §§ 1301(a), 1552, 1341(a).

24-13
 3. Broad Definition of Training. "'[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
85
military advice to foreign military units and forces."

4. Unauthorized Training in Honduras in 1983-84. Lengthy, elaborate instruction of

foreign forces in artillery fire-direction practices, counterinsurgency techniques, and
combat medic skills were authorized to be financed with operation and maintenance
appropriations only to the extent that such training was not comparable to--nor was
86
it intended as--security assistance. Under this test, the training was unauthorized.

a. "Interoperability, Safety, and Familiarization" Distinguished. "[M]inor

amounts of interoperability and safety instruction [do] not constitute
"training" as that term is used in the context of security assistance, and
87
could therefore be financed with O&M appropriations."

b. Training U.S. Troops Distinguished. "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
88
of the exercise is to train U.S. troops."

5. "Training" v. "Exercising" According to one practitioner,

Essentially, training is teaching or validating concepts or procedures not

previously known or mastered. Exercising is practicing what is already
known well. United States forces may exercise with international units, so
long as participants pay their fair share of support costs. We may not train
international personnel, however, unless we are paid for the value of the
training received under a foreign military sales (FMS) case or other security
89
assistance arrangement.

6. Statutory Exceptions to the General Rules Against non-IMET/FMS training of

foreign forces.

a. Reciprocal Training. 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
90
reciprocates with equivalent value training within one year.

b. Special Operations Forces. Provided that the training primarily benefits

U.S. special operations forces, these forces 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. See 10
91
U.S.C. § 2011. Training must occur overseas.

85
AECA § 47(5), 22 U.S.C. § 2794(5); Cf. FAA § 644, 22 U.S.C. § 2403 (omitting the word "training exercise"). DISAM, at 207.
See generally, DISAM J., Winter 1991/92, at 110-14 (describing the role of "Mobile Training Teams" and "Field Training
Services" in security assistance).
86
Honduras II, at Enclosure-1, Enclosure-20 to Enclosure-27.
87
Honduras II at Enclosure-25 (paraphrasing Honduras I, 63 COMP. GEN. at 441).
88
Gen. Fred F. Woerner, B-230214, Oct. 27, 1988 (unpublished opinion on file at The Judge Advocate General's School).
89
See Dubia, at 52 (citing NATO maneuvers and carefully planned rotations at combat training centers as exercises).
90
See AECA § 30A, 22 U.S.C. § 2770a; AR 12-15, ¶ 14-2.
91
See Dubia, at 52 (citing a DoD opinion construing legislative history).

24-14
 c. Military to Military Contacts. These “activities . . . are designed to encourage92a democratic
orientation of defense establishments and military forces of other countries.” These
contacts are normally initiated by CINCs of unified commands based on needs in their AOR.
Because
93
this is not a line item program, the Joint Staff does not track these expenditures per
se.
(1) The term used for military to94 military contacts funding is called
Traditional CINC Activities.

(2) Each CINC has an officer designated by the CJCS to conduct mil-
to-mil contacts.
95
(3) Activities authorized by 10 U.S.C. § 168(c) should be used96as a
guide to determine the appropriateness of using TCA funds.

92
10 U.S.C.
168 See THE WHITE HOUSE, A NATIONAL SECURITY STRATEGY OF ENGAGEMENT AND ENLARGEMENT 14 - 15 (Feb. 1996)
(includes mil-to-mil contacts among the types of overseas presence that promote our national security).
93
E-mail MSG fm JCS Comptroller Staff to Chairman’s Legal Office Staff, subj: TCA funding (21 Nov. 96). In FY95, Congress
authorized $46.3M of O&M funds to carry out these contacts. See National Defense Authorization Act for FY 1995, § 1316,
Pub. L. 103-306, 108 Stat. 2898 reprinted in I-B LFR, at 405. However, the DoD Appropriations Acts since FY 1995 have not
fund this activity as a separate program.
94
TCAs are funded by fenced Service O&M and Military Personnel Accounts, based on the Office of the Secretary of
Defense’s Program Budget Decision direction. Beginning in FY 96, DoD requested and received $45 million for TCA, a
program that does “not differ significantly from the activities that were funded by the military to military contact program.
GENERAL ACCOUNTING OFFICE, 1996 DOD BUDGET - POTENTIAL REDUCTIONS TO OPERATION AND MAINTENANCE PROGRAM, NSIAD-95-
200BR (Sept. 26, 1995) (GAO concludes that Congress could reduce the DOD’s O&M budget by $33 million to bring this
program’s funding in line with FY95’s mil-to-mil funding level). Verification that the DOD FY 96 O&M budget included the
requested $45 million came from a telephonic interview with Mr. Robert Lane, co-author of the GAO report referenced above
and Mr. Keith Webster, DSAA-Plans, PGM on April 10, 1996.

A good summary of the value of this program is described below:

Traditional CINC Activities are those military-to-military events conducted throughout our
theater to accomplish national security goals such as strengthening democracy and promoting regional
security. These activities focus on promoting respect for human rights and the rule of law. They include
the sharing of Ideas, expertise, and experience on such diverse topics as disaster relief, search and
rescue, public affairs, preventive medicine, and legal reforms. Traditional CINC activities are simple and
responsive. They are tailored to local situations in order to most effectively influence each nation’s
armed forces.
. . .[T]his valuable program encompasses every country in the AOR, promoting military values
while building trust and reducing tensions among neighbors. Conferences, unit exchanges, and visits
are just some of the common tools used to build relationships around shared military ties and varied
skills.

CINCSOUTH statement.
95
See 10 U.S.C. § 168(c). However, the term military-to-military contacts and their funding authority extends beyond 10
U.S.C. § 168. See 22 U.S.C. § 5901(3) (finding that it is in the national security interest of the United States “to expand
military-to-military contacts between the United States and the independent states of the former Soviet Union”); 22 U.S.C.
5902(b)(6) ) (finding that it is in the national security interest of the United States to expand “military-to-military contacts
between the United States and the independent states of the former Soviet Union”); 22 U.S.C. § 5951(5) (finding that it is in
the national security interest of the United States to “[e]xpand military-to-military contacts between the United States and
the independent states of the former Soviet Union”); and, 22 U.S.C. § 5952(b)(4). The purpose of these title 22 military-to-
military contact programs, and the difference between them and title 10 military-to-military contact programs, has been
summarized as follows:

The US government has several other programs which include Military to Military type
activities, . . . including IMET, the general DoD Military to Military Contacts Program, and some activities
under the CINCs Initiative Fund. The [Cooperative Threat Reduction] defense and military contacts
program focuses on activities that guarantee the safety of the nuclear arsenal of the [former Soviet
Union] states, and prevent the establishment of an antagonistic global rivalry between the US and
Russia. It is limited to the four countries certified for [Cooperative Threat Reduction] assistance -
Belarus, Kazakstan, Ukraine, and Russia.
By contrast, IMET supports long-term professional military education for republic students, but
does not provide for reciprocal placement of US officers in republic schools. The overall DoD Military to
Military Contacts Program is a worldwIde program designed to assist military forces in democratic
societies and does not specifically address activities in the four countries eligible for CTR assistance.

Hearings on FY 95 Defense Authorization Before the House Armed Services Comm., 103rd Cong., 2nd Sess.
(1994)(Statement of Ashton B. Carter, Assistant Secretary of Defense, International Security Policy on April 28, 1994). See
generally, Robert J. Kasper, Jr., Direct Training and Military-to-Military Contact Programs: The CINCs’ Peacetime Enablers,
42 NAV. L. R. 189 (1995).

24-15
 (4) Title 10 military-to-military contact programs do not authorize the
use of funds to conduct training. Direct training normally will occur
through IMET or an FMS case. Title 22 military-to-military
97
programs do authorize using funds to conduct training.

(5) TCA funding for FY 97 is $45 million O&M ($30m Army; $10m
Navy; and $5m Air Force) and $15 million MILPER ($9.5m Army;
$2.5m USAF; $1.5m USN; and $1.5m USMC)98

d. Statutory Exceptions. These are quite narrow, and all have

significant prerequisites. See, e.g., 10 U.S.C. §§ 1050,99 and 2010.

100
7. A Special Prohibition of Police Training.

96
Msg, Vice Chairman, Joint Chiefs of Staff, subject: Traditional CINC Activities Funding (181100Z Oct 95) and Msg, Vice
Chairman, Joint Chiefs of Staff, subject: Traditional CINC Activities Funding Update (190937Z Aug 96). In summary, these
messages provide the following guidance:

TCA funding cannot be used to fund:

1. Any activity specifically denied by Congress.
2. The acquisition of weapons systems or major end items.
3. Research and development.
4. Training of foreign militaries normally funded with IMET or FMS.
5. Direct support to foreign countries or the provision of equipment to foreign countries, including
supplementation of
funds appropriated under FMS or any provision of the FAA.
6. Exercise Related Construction (ERC).
7. MILCON projects.
8. HCA and Humanitarian/Disaster Relief (except for incidental costs).

TCA can be used to fund, for example:

1. Military liaison teams.
2. Traveling contact teams.
3. State partnership programs.
4. Personnel and information exchanges.
5. Regional conferences and seminars.
6. Unit exchanges.
7. Staff assistance/assessment visits.
8. Training program review and assessments.
9. Ship rIder programs.
10. Joint/combined exercise observers.
11. Combined exercises, though not primarily intended for such exercises.
12. Though not primarily intended for such use, HCA projects IAW 10 U.S.C. § 401 and DoD Dir. 2205.2, may be
funded, but only for incidental costs of carrying out such assistance contained assistance contained in 10
U.S.C. §
401(c)(2).
13. Bilateral staff talks.
14. Host Nation medical and dental support planning meetings, not actual medical and dental support.
15. Program administration, to include supplies and equipment, travel, and translation services.

TCA funds are not intended to replace or duplicate any other specifically authorized or appropriated fund source available
to the CINCs. TCA must be approved by the CINC with the concurrence of the local embassy.
97
Compare 10 U.S.C. § 168(c) with 22 U.C.C. §§ 5901(3), 5902(b)(6), 5911(a)(1)(B), and 5954. Congress appropriated $300
million to remain available until expended for the former Soviet Union Threat Reduction Program to which these title 22 mil-
to-mil contact programs apply. See Department of Defense Appropriations Act, 1996, Pub. L. No. 104-61, tit. II, 109 Stat. 636,
642 (1995).
98
Msg, Vice Chairman, Joint Chiefs of Staff, subject: Traditional CINC Activities Funding Update (190937Z Aug 96)
99
This is also known as the Latin American (LATAM) Cooperation Program. This statute authorizes the payment of “travel,
subsistence, and special compensation of officers and students of Latin American Countries and other expenses”
considered necessary for LATAM cooperation.
100
Commonly called DCCEP (Developing Countries Combined Exercise Program). This program allows the U.S. to pay the
incremental costs of a developing country that they incur as a direct result of participating in bilateral or multilateral military
exercises with the U.S.

24-16
 a. General provision. 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
101
United States or abroad."

b. Primary exception prior to FOAA 96 was this provision did not apply to
longtime democracies with no standing armed forces and with good human
102
rights records.

c. FOAA 96, § 540A(d), 110 Stat. 737, amended § 660(b) exempting from the
general prohibition:

(1) “assistance, including training, relating to sanction monitoring and

enforcement,” and

(2) “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.”

(3) When interpreting this new authority, the conferees report is

instructive. “The conferees recognize that there may be instances
when there is no practical alternative to utilizing U.S. military
personnel to conduct short-term training of civilian police. The
conferees intend that any such use of U.S. military personnel for
103
police training should be on a limited, short term basis.”

C. Unauthorized Furnishing of Humanitarian or Civic Assistance (HCA).

1. Congressional Purpose. Humanitarian or civic assistance should occur through

104
those provisions of the FAA which authorize it.

2. HCA Defined. HCA is medical, dental, and veterinary care provided in rural areas,
construction of basic roads, well-drilling, construction of basic sanitation facilities,
rudimentary construction and repair of public facilities, and detection and clearance
105
of landmines.

3. The Purpose, Time, and Amount Rules. In accordance with the rules stated in A.2.
above, foreign assistance programs that furnish humanitarian or civic assistance
must not be supported by appropriations intended to be used for the operation and
106
maintenance (O&M) of United States forces.

101
FAA § 660(a), 22 U.S.C. § 2420(a).
102
FAA § 660(c), 22 U.S.C. § 2420(c). See also LFR, at 285.
103
H.R. CONF. REP. NO. 295, 104th Cong., 1st Sess. 57 (1995).
104
See e.g., FAA §§ 101-491, 531-35; 22 U.S.C. §§ 2151-2292q, 2346-46d; Honduras II at Enclosure-28 to Enclosure-35.
105
See 10 U.S.C. § 401(e)(1) to (e)(5).
106
See, e.g., 31 U.S.C. §§ 1301(a), 1552, 1341(a).

24-17
 4. Unauthorized Humanitarian and Civic Assistance in Honduras in 1983-84. Medical
Civil Action Programs (MEDCAPs) resulting in immunizations for 200,000 Hondurans
and treatment of more than 46,000 medical patients, 7,000 dental patients, and
more than 37,000 animals, as well as the construction of a small schoolhouse using
AID-supplied materials exceeded the incidental amount of HCA authorized to be
107
financed with operation and maintenance appropriations.

5. Statutory Qualification to the General Rule Against non-FAA Furnishing of HCA.

Subject to approval of the Secretary of State and careful DoD regulation,108 a
certain amount of HCA may be provided in conjunction with military operations. For
FY 97, Congress appropriated $49 million for title 10 Overseas Humanitarian,
Disaster, and Civic Aid (OHDACA) expenditures.109 For further information on
non-FAA HCA activities, see Chapter 23 (Humanitarian and Foreign Disaster
Assistance), this Handbook.

D. Unauthorized Furnishing of Design and Construction Services.

1. Congressional Purpose. Design and construction services should be rendered to

110
foreign countries through those provisions of the AECA which authorize it.

2. The Purpose, Time, and Amount Rules. In accordance with the rules stated in A.2.
above, the FMC must not be supported by appropriations intended to be used for
111
the operation and maintenance (O&M) of United States forces.

3. Unauthorized Construction in Honduras in 1983-84. The construction of 300

wooden huts and a 3500-foot dirt airstrip, and the expansion of two other airstrips
112
exceeded the amount that could be financed with O&M appropriations.

4. Statutory Exceptions to the General Rule Against Providing Design and Construction
Services. 10 U.S.C. § 2805(c) provides separate authority for financing a minor
military construction project with up to $500,000 of O&M funds.113 For further
information on construction activities, see Chapter 12 (Fiscal law), this
Handbook.

E. 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
114
of those defense services.”

F. Human Rights Violations By the Foreign Government--The "Kennedy Amendment."

1. "Except under circumstances specified in this section, no security assistance may

be provided to any country the government of which engages in a consistent pattern
115
of gross violations of internationally recognized human rights."

107
Honduras II, at Enclosure-29.
108
See DEP’T OF DEF. DIR. 2205.2, HUMANITARIAN AND CIVIC ASSISTANCE (HCA) PROVIDED IN CONJUNCTION WITH MILITARY
OPERATIONS (Oct. 6, 1994); DEP’T OF DEF. INST. 2205.3, IMPLEMENTING PROCEDURES FOR THE HUMANITARIAN AND CIVIC ASSISTANCE
(HCA) PROGRAM (Jan. 27, 1995)
109
Congress, authorized $54.544 million in OHDACA funds but Congress only appropriated $49 million of OHDACA funds.
Compare the Nat’l Def. Auth. Act, 1997, tit. III, subtit. A, Pub. L. 104-201, 110 Stat. 2475 with the Dep’t of Def. Appropriations
Act, 1997, tit. II, Publ. L. 104-208, 110 Stat. 338_.
110
See AECA §§ 23, 24, 29; 22 U.S.C. §§ 2763, 2764, 2769; Honduras I, at 433.
111
See, e.g., 31 U.S.C. §§ 1301(a), 1552, 1341(a).
112
Honduras I, at 433.
113
Congress raised this from $300,000 to $500,000 in the Nat’l Def. Auth. Act, 1997, tit. XXVIII § 2801, 110 Stat. 2787.
114
AECA § 21(c)(1), 22 U.S.C. §2761(c)(1); DISAM, at 54.
115
FAA § 502B(a)(2), 22 U.S.C. § 2304(a)(2).

24-18
 2. The President is directed to formulate and conduct security assistance programs in
a manner which will promote and advance human rights and avoid identification of
the United States, through such programs, with governments which deny to their
116
people internationally recognized human rights and fundamental freedoms.

3. Each year the Secretary of State must submit a report to Congress on the human
117
rights practices of all countries receiving security assistance. Congress will
resolve to terminate assistance in the event of receiving a report of a consistent
118
pattern of gross violations of human rights.

4. Military personnel performing security assistance training have a duty to report

119
human rights violations.
120
G. Other Eligibility Problems With the Foreign Country.
121
1. Expropriation of Property Owned by U.S. Citizens.
122
2. Involvement in Nuclear Transactions.

3. In Arrears on Debts. FAA § 620(q), 22 U.S.C. § 2370(q), prohibits assistance of

any country in arrears in excess of 6 months on repayment of any FAA loan.
Liberia is exempted from this provision.123 FOAA 97, § 512, 110 Stat. 3500,
commonly called the “Brook-Alexander Amendment,” requires the suspension of
new IMET, ESF, and FMFP-funded cases of any country who is in arrears of any
foreign assistance loan in excess of one calendar year. Nicaragua is exempt from
both provisions. These prohibitions do not effect narcotic-related assistance to
Colombia, Bolivia, and Peru.
124
4. Support of International Terrorism. In FOAA 97 several provisions impact
international terrorism.

a. Congress prohibited bilateral assistance to any country which either grants

sanctuary from prosecution to any individual or groups which has committed
an act of international terrorism, or otherwise supports international
terrorism.125

b. Congress prohibited furnishing assistance to any government that provides

lethal military equipment to any country that the SECSTATE has determined
repeatedly provided support for acts of international terrorism. 126

116
See FAA § 502B(a)(3), 22 U.S.C. § 2304(a)(3).
117
See FAA § 502B(b), 22 U.S.C. § 2304(b). The publication produced is the R PT. TO THE COMM. ON INT’; REL., U.S. HOUSE REP.,
AND THE C OMM. ON FOR. R EL., U.S. SENATE, 104th Cong., 2d Sess., C OUNTRY R EPORTS ON H UMAN R IGHTS PRACTICES FOR 1995
(Joint Comm. Print, 1996)
118
See FAA § 502B(c), 22 U.S.C. § 2304(c).
119
See AR 12-15, ¶ 13-3; DISAM, at 563, 572 - 3 (describing "Five R's" that summarize a U.S. military member's
responsibilities with respect to human rights).
120
See FAA § 620, 22 U.S.C. § 2370. See also DISAM, at 59 - 61 and 79 - 80.
121
FAA § 620(e)(1), 22 U.S.C. § 2370(e)(1) (codifying the "First Hickenlooper Amendment").
122
FAA § 669-70, 22 U.S.C. § 2429-29a (codifying the "Symington-Glenn Amendments").
123
FOAA 97, § 566, 110 Stat. 3___.
124
See FAA § 620A, 22 U.S.C. § 2371 and AECA § 40, 22 U.S.C. § 2780. For new reporting requirements about a given
nation’s cooperation with U.S. anti-terrorism efforts, See FOAA 97, § 578, 110 Stat. 3567. For information on
counterterrorism, See Chapter 22, this Handbook.
125
FOAA 97, § 527, 110 Stat. 3519.
126
FOAA 97, § 551, 110 Stat. 3543.

24-19
 c. Congress made a further exception to the jurisdictional immunity of a
foreign state official, employee, or agent of a foreign state that sponsors
terrorism, while acting in the scope of their duties. This waiver applies to
monetary damages only.127

5. Transfer, Failing to Secure, or Use of Defense Articles, Services, or Training for

128
Unintended Purposes.

6. Has its duly elected Head of Government been deposed by military coup or
129
decree.

7. Former Yugoslavian Republics.

a. Military drawdown (grant) of defense articles and services to the Bosnia

and Herzegovina government is authorized during FYs 96 and 97 up to an
130
aggregate value of $100 million.

b. Fifty percent of the economic assistance appropriated for Bosnia and

Herzegovina under the Support for East European Democracy (SEED) Act
is not available for use until the President certifies that B-H has complied
with the Dayton Peace Accord provisions concerning the withdrawal of
foreign forces, and the cessation of intelligence training by Iranian officials
has occurred.131

c. Congress prohibited funds appropriated to support SEED be used for new

housing construction, or repair or reconstruction of existing housing in B-H
unless directly related to the efforts of US troops to promote peace in B-
H.132

8. Pakistan. FOAA 96 restored most assistance to Pakistan previously sanctioned

133
under the Pressler Amendment. Pakistan can now receive IMET, humanitarian
and civic, military-to-military, anti-terrorism, international narcotics control, and
134
peacekeeping operations assistance.

9. Humanitarian Assistance.

a. Interference with HCA aid. In FY 97, Congress amended the FAA so,
absent a Presidential waiver, Congress prohibits use of security assistance
funds to any country that prohibits or otherwise restricts, directly or
135
indirectly, the transport or delivery of U.S. humanitarian assistance.

b. International Disaster Assistance. Congress provided $190 million for

international disaster relief, rehabilitation, and reconstruction assistance.136

127
FOAA 97, § 589, 110 Stat. 3576. However, this waiver is limited. See 28 U.S.C. § 1605.
128
FAA § 505, 22 U.S.C. § 2314.
129
FOAA 97, § 508, 110 Stat. 3497. The president utilized this annual provision when Niger experienced a military coup.
See U.S. Suspends Assistance to Niger Following Military Coup, D EP’T OF STATE DISPATCH 44 (Feb. 12, 1996) (Statement by
White House Press Secretary Mike McCurry, on 31 Jan. 96).
130
FOAA 97, § 539, 110 Stat. 3532.
131
FOAA 97, tit. II, 110 Stat. 3469.
132
Id.
133
FAA § 620E, 22 U.S.C. § 2375.
134
FOAA 96, § 559, 110 Stat. 743 - 4.
135
FOAA 97, § 559, 110 Stat. 3549 (amending the Foreign Assistance Act by adding FAA § 620I).
136
FOAA 97, tit. II, 110 Stat. 3461.

24-20
 c. Notwithstanding other Prohibitions within the FAA and the FOAA 97,
humanitarian assistance can be provided to Afghanistan, Lebanon,
Cambodia, Burma, Romania, Bosnia and Herzegovina, Croatia, and
Kosova.137

10. Sanction compliance. Absent a Presidential determination that assistance is in the

United States’ national interest, or will directly benefit needy people of that country,
or is humanitarian assistance to foreign nationals who have fled Iraq and Kuwait,
Congress prohibited providing security assistance to any country not in compliance
138
with the U.N. Security Council sanctions against Iraq, Serbia or Montenegro.
Congress also authorized the President to prohibit importation into the U.S. of any
or all products of any foreign country that itself has not prohibited the importation of
Iraqi, Serbia, or Montenegro products into its country or exports its products to
Iraq, Serbia, or Montenegro.139

11. Congress prohibited direct assistance to Cuba, Iraq, Libya, North Korea, Iran,
Sudan, and Syria. It also prohibited indirect assistance to Cuba, Iraq, Libya, Iran,
Syria, North Korea, and the People’s Republic of China, absent a Presidential
140
Determination that providing such assistance is in our national security interest.

12. Harboring War Criminals. Congress authorized the President to withhold security
assistance funds from the government of any country that knowing grants sanctuary
to war criminals. War criminals are defined as those indicted by the International
Criminal Tribunals for the former Yugoslavia or Rwanda, or any other international
tribunal with similar standing under international law, or indicted Nazi war
141
criminals.

13. Congress requires special notification to Congress before obligating funds for
Colombia, Dominican Republic, Guatemala, Haiti, Liberia, Pakistan, Peru, Serbia,
Sudan, or Zaire.142

14. Haiti. Congress authorized Haiti as eligible to purchase defense articles and
services for the civilian led National Police and Coast Guard.143

H. Weapons-Specific Prohibitions.
144
1. Landmines.

137
FOAA 97, § 541, 110 Stat. 3534. This exemption for Cambodia does not apply to any country or organization that
provides assistance to the Khmer Rouge.
138
FOAA 97, § 533, 110 Stat. 3526.
139
See FOAA 97, § 533(b), 110 Stat. 3527.
140
See FOAA 97, §§ 507, 523, 110 Stat. 3497, 3517.
141
FOAA 97, § 568, 110 Stat. 3557.
142
FOAA 97, § 520, 110 Stat. 3515,
143
FOAA 97, § 582, 110 Stat. 3572.
144
Earlier legislation in FY 96 impacting the issues of landmines exist in the National Defense Authorization Act for Fiscal
Year 1996, Pub. L. No. §§ 1313 (including demining activities as authorized HCA operations) and 1401 (excepting from the
definition of antipersonnel mines, command detonated anti-personnel landmines for purposes of the landmine export
moratorium contained in the National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, § 1423, reprinted
in I-B LFR, at 470). The National Defense Authorization Act for Fiscal Year 1993, Pub. L. No. 102-484, § 1365(c), reprinted in I-
B LFR, at 510 - 1, established the antipersonnel landmine export moratorium. See Chapter 23 (Humanitarian and Foreign
Disaster Assistance), this Handbook.

24-21
 a. Congress authorized providing demining equipment available to any
department or agency and used in support of clearing of landmines for
humanitarian purposes, to be disposed of on a grant basis in foreign
145
countries.

b. Congress authorized the use FMFP funds for activities related to the
clearance of landmines and unexploded ordnance, and may include
activities implemented through nongovernmental and international
organizations.146

2. Tank Ammunition. The annual prohibition on the sales of depleted uranium tank
rounds was reinstated this year by permanent legislation.147

3. Stingers. FOAA 97, § 529, 110 Stat. 3520, continues 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
148
Bahrain. Bahrain may buy Stingers on a one-for-one replacement basis.

4. For the restrictions on the transfer of white phosphorus munitions, napalm, and
RCA, see SAMM, at 203-3.

I. Excess Defense Articles (EDA) Provisions.

1. General. EDA are essentially defense articles no longer needed by the U.S. armed
149
forces. There is a general preference to provide whenever possible EDA rather
150
than procuring new items. “[U]ltimate responsibility for determining if an item [is]
151
excess rests with the military department having cognizance over them.”

145
FOAA 97, § 556, 110 Stat. 3547. See also H. R PT 104-863, 104th Cong., 2d Sess., at 980 (1996).
In FY 96, Congress establish a moratorium on the use of antipersonnel landmines for a one year period being
February 12, 1999 FOAA 96, § 580, 110 Stat. 751. Exceptions to their use include use along internationally recognized
national borders; or,
in demilitarized zones with a perimeter marked area that is monitored by military personnel and protected by adequate
means to ensure the exclusion of civilians (i.e., Korean DMZ).
Antipersonnel landmine defined. Means any munition placed under, on, or near the ground or other surface area,
delivered by artillery, rocket, mortar, or similar means, or dropped from an aircraft and which is designed, constructed or
adapted to be detonated or exploded by the presence, proximity or contact of a person. This definition prohibits use of
antipersonnel FASCAM, but not antitank. The provision specifically excludes from the definition command detonated
Claymore mines
146
FOAA 97, tit. III, 110 Stat. 3487.
147
Normally, the annual FOAA contained a provision prohibiting the sale of uranium depleted rounds to everyone except
NATO member and major NATO allies. This provision was omitted in the FOAA 96. Congress cured this problem when it
enacted the Defense and Security Assistance Improvements Act, Pub. L. 104-164, 110 Stat. 1421. See Id. § 149 (amends the
FAA by adding FAA, § 620G). If the president determines that it is in our national security interest, he may waive this
prohibition.
148
See SAMM, at 203-3.
149
See generally, CPD 97, at 471 - 3. FAA, § 644(g), 22 U.S.C. 2403(g), formally defines EDA as:

[T]he quantity of defense articles (other than construction equipment, including tractors, scrappers,
loaders, graders, bulldozers, dump trucks, generators, and compressors) owned by the [U.S.]
Government, and not procured in anticipation of military assistance or sales requirements, or pursuant
to a military assistance or sales order, which is in excess of the Approved Force Acquisition Objective
and Approved Force Retention Stock of all [DoD] components at the time such articles are dropped from
inventory by the supplying agency for delivery to countries or international organizations under this
chapter.

However, for purposes of the new FAA § 516, excess defense articles includes excess property of the Coast
Guard. See DSAIA, § 104, 110 Stat. 1426 (the new FAA § 516(i)).
150
However, DSAIA, § 104, 110 Stat. 1426 (the new FAA § 516(b)(2)(A)) repeals FAA, § 502A, 22 U.S.C. § 2303 that
legislatively established a preference for EDA over procuring new items.
151
DISAM, at 67. A useful reference when addressing excess defense article issues is D EFENSE REUTILIZATION AND MARKETING
MANUAL 4160.21-M.

24-22
 a. Only countries which are justified in the annual CPD or separate justified in
the FOAA during a fiscal year are eligible to receive EDA.

b. EDA must be drawn from existing stocks. 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.152

c. EDA are priced on the basis of their condition with pricing ranging from 5 to
153
50 percent of the items original value. With certain exceptions, the
sale/grant of EDA must include an agreement for the recipient country to
154
pay the costs of packing, crating, handling, and transportation (PCH&T).

d. The annual value of EDA is limited to $350 million of the articles current
value.155

2. Congress gave priority of EDA distribution to NATO Participation nations. Only

NATO allies and major non-NATO allies on the southern flank of NATO have a
higher priority.156

3. Congress requires 30 days prior notification before items DoD can transfer items
under FAA 516. Additionally, Congress requires a report stating the original
acquisition cost (versus current value) of the items being transferred.157

4. Congress extended for another four years the requirement that EDA be distributed
at a 7:10 acquisition value ratio between Greece and Turkey, respectively. 158

J. The Legal Status of Security Assistance Personnel. The legal status of SAO personnel is
derived either from status provided to diplomatic missions by the receiving state under
provisions of the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 22 U.S.T. 3227,
500 U.N.T.S. 95, or from a separate, bilateral accord (e.g. a Military Assistance Advisory
Group Agreement).

1. SAO Personnel. Most SAO personnel fall into the category of "administrative and
technical staff" under the Vienna Convention, art. 37(2), which affords them and
their families full criminal immunity, but only limited immunity from the country's
159
administrative and civil jurisdiction.

2. Security Assistance Training Teams.

152
See DSAIA, § 104, 110 Stat. 1424 (replacing the old FAA §§ 516 - 520 with a new FAA § 516).
153
Id. (citing DoD 7000.14, Volume 15). However, GAO has criticized the services for not complying with this requirement.
See GENERAL ACCOUNTING OFFICE, SECURITY ASSISTANCE: NEED FOR IMPROVED REPORTING ON EXCESS DEFENSE ARTICLE TRANSFERS
4 (18 Jan 94) (citing for example the Army’s adopted “policy of pricing/valuing excess Army trucks at 5 percent to 10 percent
of acquisition cost, regardless of their condition.”).
154
Two exceptions exist in the new legislation. Under the new FAA, § 516(e), the President may provide EDA
transportation at no cost to the recipient country if he determines in the national interest to do so; the recipient country in
the FY is receiving less than $10 million of assistance relating to IMET and FMF; the total weight of the transfer does not
exceed 25,000 pounds; AND the transportation is accomplished on a space-A basis. DSAIA, § 104, 110 Stat. 1426. The
other exception exempts those countries that are eligible to participate in (versus actually participating in) the Partnership
for Peace and that are eligible under the SEED Act of 1989. DSAIA, § 105, 110 Stat. 1427. Those countries include Albania,
Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia. See H.R. RPT
104-519, PT. 1, 104th Cong., 2d Sess., at 6 (Apr. 16, 1996).
155
H.R. RPT 104-519, PT. 1, 104th Cong., 2d Sess., at 6 (Apr. 16, 1996); DSAIA, § 104, 110 Stat. 1426 (the new FAA § 516(g)(1))
This provision repealed AECA, § 31(d), 22 U.S.C. 2771(d), that limited the annual value of EDA sales/grants to $250 million.
This old figure based the value of the articles upon their original acquisition value, not the value accessed for transfer.
156
FOAA 97, § 609, 110 Stat. 3591.
157
FOAA 97, § 525, 110 Stat. 3518.
158
FOAA 97, § 535, 110 Stat. 3529.
159
DISAM, at 121, 522 - 4. See also Dennis P. Walko, USASATMO and the SAO, DISAM J. (Fall 1995), at 45.

24-23
 a. Prior to 1992, FMS cases were drafted using DD Form 1513. This
document contained a provision purporting to give training teams certain
diplomatic protections.

(1) See Dep't of Defense, Form 1513, United States Department of

Defense Offer and Acceptance, 1 Mar. 1979, at 8, n. 28 ("Legal
Status - Security Assistance Training Team members and their
dependents will be subject to the terms of any agreements or
memoranda of understanding between your Government and US
Government. Team members will be given the same legal status,
privileges and exemptions as technical personnel assigned to the
US Embassy/Consulate or Security Assistance Activity.").

(2) Since an FMS case can last from 8 to 15 years, many DD Form
1513 are still in effect.

b. Since June 1992, FMS cases are entered into using a standardized letter
160
called a Letter of Offer and Acceptance.

(1) DoD General Counsel opines that inclusion of SOFA-like status

provisions in an LOA requires that the LOA be staffed through DoD
IAW the procedures for staffing international agreements in DoD
161
Dir. 5530.3.

(2) Consequently, few future LOAs will contain SOFA-like language.

They may, however, incorporate provisions of existing international
agreements (security assistance, SOFAs, Dip. Notes) by
reference.

K. Presidential Drawdown Authorities.

1. § 506(a)(1). The President may draw down defense articles, defense services,
and military education and training if an unforeseen emergency arises that requires
162
immediate military assistance that cannot be met under any other section. The
new ligislation authorizes to use up to $100 million in any FY using this authority.

2. § 506(a)(2). If the President determines that it is in the United States national

interest to drawdown to support counternarcotics, disaster relief, and refugee and
migration assistance, he may drawdown article and services from the inventory
and resources of any agency of the US and military education and training from
163
DoD.

3. Additional restrictions on the President’s § 506 drawdown authority:

a. The aggregate value of articles, services, and military education and

training cannot exceed $150 million in any FY.

160
See Id. at 160 and SAMM, at 701-13 - 701-24.
161
See SAMM, at 701-7.
162
DSAIA, § 103, 110 Stat. 1423. See PRES. DETERM. 96-55, 61 F.R. 56861 (Sept. 30, 1996) (drawdown from DoD inventory and
resources to support states currently participating in ECOMOG and the crisis in Liberia). This authority was been recently
used to provide military assistance to Jamaica and support to Operation Restore Democracy (Haiti), and Operation provide
Comfort (Somalia). See LFR, at 188 - 189 n. 546 (reprinting extracts of presidential Determination No. 94-41, 59 Fed. Reg.
42149, and presidential Determination No. 94-50, Fed. Reg. 49781) and Philip A. Meek, Operation provide Comfort: A Case
Study in Humanitarian Relief and Foreign Assistance, 36 A.F. L. REV 225, 229 (1994).
163
DSAIA, § 103(b), 110 Stat. 1423. The President used this authority to provide disaster relief in and around Rwanda. See
LFR, at 189 (reprinting extract of Presidential Determination 94-44, 59 Fed. Reg. 44891). See also PRES. DETERM. 91-35, 56
F.R. 26755 (May 26, 1991)(drawdown of DoD articles and service to provide disaster assistance support to Bangladesh);
PRES. DETERM. 92-48, 57 F.R. 46747 (Sept. 30, 1992)(drawdown of DoD articles, services, and training to support Colombia’s
counternarcotics efforts).

24-24
 b. Not more than $75 million may be provided from the inventory and
resources of DoD;

c. Not more than $75 million may be provided for international narcotics
control assistance;

d. 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.164

4. § 552(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, that 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 US Government agency of an aggregate value not to exceed $25 million in
165
any FY. This was used to promote continued support to the Government of
166
Haiti. , during Operation Restore Hope in Somalia. For more information on the
President’s emergency powers during Peace Operations, see Chapter 25, this
Handbook.

L. Other Extraordinary or Emergency Presidential Authority.

1. The President may furnish security assistance without regard to the FAA or AECA if
he deems it is important to the security interests of the United States and notifies
the Speaker of the House of Representatives and the chairman of the Senate
167
Committee on Foreign Relations. This assistance may be in the form of sales,
credit, or guarantees. The President used this authority to support sanctioning
enforcement against Serbia and Montenegro in 1995, and to provide funding to
168
reestablish polices forces in Somalia in 1994.

2. The President may waive the statutory waiting period for major arms transactions in
169
emergency situations.

3. The President may furnish commodities and services to friendly foreign nations and
international organizations if consistent with and in furtherance of purposes of
Subchapter I of the FAA. Peacekeeping and disaster relief efforts are examples of
170
such purposes. Separate “607 agreements” with the United Nations were
concluded to support U.N. operations in the Former Yugoslavia, Haiti, Somalia, and
171
Rwanda.

164
DSAIA, § 103(b)(2), 110 Stat. 1424.
165
FAA § 552(c), 22 U.S.C. § 2348(c). See S. COMM. ON FOREIGN RELATIONS & HOUSE COMM. ON FOREIGN AFFAIRS, LEGISLATION
ON FOREIGN R ELATIONS THROUGH 1993, VOLS. I-A 214 n. 609 (1994) [hereinafter 1994 LFR].
166
See PRES. DETERM. 96-52, 61 F.R. 50417 (Sept. 12, 1996)(President Clinton directed the drawdown of $3 million of
commodities and services from the inventory and resources of the Departments of State, the Treasury, Defense and Justice
to provide augmentation and training for the Presidential security elements of the Government of Haiti); P RES. DETERM. 95-
28, 60 F.R. 35463 (June 23, 1995)(President Clinton directed the drawdown of $7 million of commodities and services from
the inventory and resources of the Departments of Defense, Justice, Treasury and State to support accelerated training,
equipping and deployment of Haitian police forces).
167
FAA § 614(a); 22 U.S.C. § 2364(a); DISAM, at 64.
168
See LFR, at 234 - 235 n. 724 (reprinting of extracts of Presidential Determination 95-14, 60 Fed. Reg. 8521 and
Presidential Determination 94-17, 59 Fed. Reg. 14735, respectively).
169
AECA § 36(b), 22 U.S.C. § 2776; DISAM, at 64.
170
FAA § 607, 22 U.S.C. § 2357.
171
See generally Briefing Memorandum, Major Fred T. Pribble, Office of the Chairman Joint Chiefs of Staff, subj:
Acquisition and Cross-Servicing Agreements, Support to United Nations Operations, and Special Operational Support
Authorities (11/12 Jan. 95), at 12 - 13 [hereinafter Pribble] and Briefing Memorandum, Major Fred T. Pribble, Office of the
Chairman, Joint Chiefs of Staff, subj: Support to Multilateral Peace Operations (May 1995), at 6 - 7, 10.

24-25
 4. The President has authority to use up to $25 million, in any fiscal year, of funds
made available for FAA purposes to provided FAA authorized assistance for
172
“unanticipated contingencies.” This was used in 1993 to provide assistance to
173
pay salaries for the Cambodian Army.

5. The President may allocate or transfer funds appropriated for FAA purposes to any
174
agency of the U.S. Government for carrying out the purposes of the FAA.

172
FAA § 451, 22 U.S.C. § 2261.
173
See 1994 LFR, supra, at 121 n. 354
174
FAA § 632, 22 U.S.C. § 2392.

24-26
 CHAPTER 25
PEACE OPERATIONS
“With this manual, the Army continues the broadening of its post-Cold War doctrine, doctrine that is focused on warfighting,
yet accommodates employment across the full range of operations.”
TRADOC Commander, General William Hartzog, describing the thrust of FM 100-23, PEACE OPERATIONS

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
1
success, though settlement is rarely achievable through military operations alone.” 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
2
foreign affairs on behalf of the President. 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. Appendix I contains the UN Charter. Judge Advocates should be especially
familiar with the provisions of 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
3
means of their own choice.” 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
4
peace.” Peacekeeping is an internationally accepted mode of managing conflicts and giving states a
5
buffer to seek long term, peaceful resolutions. Because Peacekeeping was a compromise generated
from the Security Council's 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 (See Chapter 4 for a description of the
Charter mechanism for collective security as it relates to the current context of customary international
law.)

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
6
security by taking “such action by air, sea, or land forces as may be necessary.” Member states of the
7
UN are obligated to “accept and carry” out the decisions of the Security Council. Since 1990, the
changing international security environment increased the scope and number of UN efforts. On the one

1
DEP’T OF ARMY, FIELD MANUAL 100-23 PEACE OPERATIONS v (30 December 1994).

2
22 USC. § 3927. For a discussion of the relationship between the CINC’s COCOM authority under 10 USC. §§ 161-168 and the
ambassador’s normal peacetime authority, see Chapter 2. For the legal basis of COCOM see 10 USC. § 164.
3
UN Charter art. 33, para. 1.

4
UN Charter art. 1, para. 1.
5
There are currently 16 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

6
UN Charter art. 42.

7
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.

25-1
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
8
its own operational procedures, and reevaluating the proper role for military deployments under UN
authority in maintaining international peace and security.
9
The number of US Army deployments is up 300% since 1989. Before 1991, only a handful of US
military observers served in three UN peacekeeping operations. Since the end of the Cold War US 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 US foreign policy objectives for the peaceful resolution of conflict,
reinforce the collective security efforts of the US, our allies, and other UN member states, and enhance
regional stability.
10
PRESIDENTIAL DECISION DIRECTIVE 25 (May 1994) The Secretary of State previously declared that
while the UN performs many important functions, “its most conspicuous role - and the primary reason for
11
which it was established - is to help nations preserve the peace.” The President defined his policy
towards supporting Peace Operations in Presidential Decision Directive 25, "The Clinton Administration’s
Policy on Reforming Multilateral Peace Operations (May 1994)." (see supra Chapter 2). PDD-25 is a
classified document, the information in this summary is based upon the unclassified public extract. The
President reiterated that Multilateral Peace Operations are an important component of the US national
military strategy and that US forces will be used in pursuit of US national interests. PDD-25 promulgated
six major issues of reform and improvement. Many of the same areas are the subjects of active debate,
with the current Congress discussing methods of placing stricter controls on how the US will support peace
operations and how much the US will pay for peace operations. The PDD-25 factors are an aid to the
decisionmaker. 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 US forces. There
will seldom be a single document which 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 US
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):

1) UN involvement advances US 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

8
Such efforts have included the formation (at US urging) of an Operations Center to help coordinate and monitor UN Peacekeeping
Missions, 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 Secretariat’s staffing level.
9
The Honorable Togo D. West, Jr. & General Dennis J. Reimer, UNITED STATES ARMY POSTURE STATEMENT FY 97: MEETING THE
ST
CHALLENGES OF TODAY, TOMORROW, AND THE 21 CENTURY 3 (1996).
10
BUREAU OF INT’L ORG. AFFAIRS, US DEP’T OF STATE, PUB. NO. 10161, THE CLINTON ADMINISTRATION’S POLICY ON REFORMING
MULTILATERAL PEACE OPERATIONS (1994), reprinted in 33 I.L.M. 795 (1994).

11
Madeleine K. Albright, The UN, The US and the World, 7 Dep’t of State Dispatch 474 (1996).

25-2
 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 US vote for approving the operation, a second set of criteria will
determine whether to commit US troops to the UN operation:

1) Participation advances US 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) US 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
US 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 US forces as well as ROE modifications).

2. Reducing US costs for UN peace operations.

12
This is the area of greatest Congressional power regarding control of military operations.
Funding limitations have helped to check the Security Council’s 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 US). In Chapter VII, peace operations, participating States normally
pay their own costs of participation. For instance, in Somalia (Restore Hope/UNITAF), Chapter VI
procedures, accessed contributions. This is the exception to the normal rule. PDD-25 calls for US
contributions to be reduced to 25%. The policy also proposes specific steps for the UN to reduce the
costs of UN peace operations.

3. Policy regarding the command and control of US forces.

Command and control of US forces sometimes causes more debate than the questions
surrounding US participation. The policy reinforces the fact that US authorities will relinquish only
"operational control" of US forces when doing so serves US security interests. The greater the US military
role, the less likely we will give control of US forces to UN or foreign command. Any large scale
participation of US forces that is likely to involve combat should ordinarily be conducted under US
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

12
US CONST. art. 1, § 8. See infra the section on funding Peace Operations and Chapters 12, 22, & 23 herein.

25-3
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 US forces. However,
the President retains the authority to release designated US forces to the Operational Control (OPCON) of
a foreign commander for designated missions. When US forces are under the operational control of a UN
commander they will always maintain the capability to report separately to higher US 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 US units participating in UN operations will
refer to higher US authorities orders that are illegal under US or international law, or are outside
the mandate of the mission to which the US agreed with the UN, if they are unable to resolve the
matter with the UN commander. The US reserves the right to terminate participation at any time or
take whatever actions necessary to protect US forces.

The JA must understand the precise definitions of the various degrees of command in order to
help ensure that US commanders do not exceed the lawful authority conveyed by the command and control
13
arrangements of the JCS execute order. The Command and Control lines between foreign commanders
and US forces represent legal boundaries which the lawyer should monitor. (See the section on Command
and Control in this chapter).

COCOM is the command authority over assigned forces vested only in the commanders of combatant
commands by title 10, US 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.

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 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 US Government Management and Funding of Peace Operations. The policy assigns
responsibilities for the managing and funding of UN peace operations within the US Government. DoD will
take lead management and funding responsibility for those UN operations that involve US combat units and
those that are likely to involve combat, whether or not US troops are involved. DoS will retain lead

13
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).

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management and funding responsibility for traditional peacekeeping that does not involve US combat units.
Regardless of who has the lead, DoS remains responsibility 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 President's belief that US 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 Army's 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 3-07.3, JOINT TACTICS, TECHNIQUES, AND PROCEDURES FOR
PEACEKEEPING OPERATIONS (29 April 1994) (under revision and due for release as JTTP for Peace
14
Operations) is also a valuable guide. While not a doctrinal source, the JOINT TASK FORCE COMMANDER’S
HANDBOOK FOR PEACE OPERATIONS (28 February 1995) (under revision) 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 US doctrine and other publications which 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.

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.

14
Joint publications can be found electronically at http://www.dtic.mil/doctrine

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 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. Peace-
keeping 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, 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 protocol.

- 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.

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

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Chapter VI of the Charter of the United Nations. Peacemaking is strictly diplomacy. Confusion still exists
in this area because the former US 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 a 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 does not need
an existing truce or peace plan.

Peace-Building

FM 100-23: Postconflict 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 JA should use the doctrinal categories only as a guide to reaching the legal
issues which affect each piece of the operation. Most operations are fluid situations, made up of
multifaceted and interrelated missions. For example, in Haiti there is currently a Chapter VI mission
alongside a unilateral US security assistance relationship, which supplements ongoing US humanitarian
operations. 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.
15
- Second generation peacekeeping
- Aggravated peacekeeping
- Wider peacekeeping
- Expanded peacekeeping
16
- Protective/humanitarian engagement
15
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.

16
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.

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 17
- Stability operations

LEGAL AUTHORITY & US 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. As a result, the UN Charter does not directly provide for
peacekeeping. Due to the limited authority of a 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. (The UN Charter is reprinted in Appendix I)

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
18
the application of enforcement measures under Chapter VII.

As a permanent member of the Security Council, the US has an important political role in the
genesis of Peace Operations under a UN mandate. The JA 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 rule of international law, states cannot procure treaties through coercion or
19
the threat of force. 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
20
VII, the treaty is binding.

THEREFORE: US participation in Peace Operations falls into these discrete categories:

• Participation IN United Nations Chapter VI Operations (UNTSO, UNMIH): This type of

21
operation must comply with the restraints of the United Nations Participation Act (UNPA). § 7 of the
UNPA (22 USC. § 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
USC. § 2388) is another authority which allows the head of any agency of the US 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

17
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).

18
UN Charter art. 2, para. 7.
19
Vienna Convention on the Law of Treaties, arts. 51-53 UN Doc. A/Conf. 39/27, reprinted in 8 I.L.M. 679 (1969).
20
Id. at art. 52; RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 331 cmt. d (1986).
21
P.L. 72-264, codified at 22 USC. § 287 et seq.

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 22
organization. No more than 1,000 personnel worldwide may be assigned under the authority of § 7at 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.
• Operations SUPPORTING Enforcement of UN Security Council Resolutions: These
operations are generally pursuant to Chapter VII mandates, and are rooted in the President’s 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 JA 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 are 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 JCS Execute Order for the 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 Council's approval.
- The size and organization of the Force.
- List those states which may provide contingents.
- Outline proposals for the movement and maintenance of the Force, including states which might
provide transport aircraft, shipping, and logistical units.
- The initial time limit for the operation.
- 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 US military O&M funds in accomplishing the mission.

Chain of Command Issues

• US Commanders may never take oaths of Loyalty to the UN or other organization.
23

• Force Protection is an inherent aspect of command which is nowhere prescribed in Title 10.

22
22 USC. §§ 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
US 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 US 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 US peacekeeping
assessment (currently paid at 30.4% of the overall UN PKO budget). Standard UN reimbursement is $988 per soldier/per
month (non-specialist). DOD incremental costs associated with a detail are approximately $315 per soldier/per month.
23
The UN asked MG Kinzer to take such an oath of loyalty during UNMIH, and the JA coordinated with JCS 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
USC. § 2387.

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 • Limitations under PDD-25: A foreign commander cannot change a mission or deploy US
forces outside the area designated in the JCS deployment order, separate units, administer discipline, or
modify the internal organization of US 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 Secretary-General decides the force's 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,
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 US Security Council resolution 1031, IFOR 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 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, 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 which 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 US Forces in the AO & Train Them Accordingly
• 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)(See
Chapter 3 for the Model UN SOMA) depends on the type of operation. Enforcement operations which do
not depend on, and may not have the consent of the host authorities, normally will not have a SOFA. Most
other operations should have a SOFA.

In most instances the SOFA will be a bilateral international agreement between the UN (if UN
commanded) or the US and the host nation(s). In UN operations the SOFA will usually be based on the
Model Status of Forces Agreement (reprinted in Chapter 3). 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.

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 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.
- 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.
- 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 HN's property).

The UN (and the US) 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 page 25-21) Current status: 43 signatories, 10 ratifications out of 22
required for the Convention to enter into force. 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. The Convention will apply in UN
operations authorized under Chapter VI. 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 page 25-16) Article VI § 22 defines and explains the legal
rights of United Nations personnel as “Experts on Mission.”

Laws of War. It is the UN and US 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
US position was that the Geneva Conventions did not apply, it was not international armed conflict and the
US was not an occupying force. However, the forth Geneva Convention (the civilians convention) was used
to help guide US obligations to the local nationals. In NATO’s enforcement of the no-fly zone and
subsequent bombing campaign over Bosnia, it was the UN, NATO, and US position that it was not armed
conflict as between the NATO forces and the belligerents. The aircrews 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 US policy (DoD
Directive 5100.77), US forces will always comply with the Law of 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

25-11
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 which
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 which 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 Chapter 8 for tips in drafting ROE, training ROE, and sample peace
operation ROE.

Funding Considerations
• FIND POSITIVE AUTHORITY FOR EACH FISCAL OBLIGATION AND APPROPRIATE
FUNDS TO ALLOCATE AGAINST THE STATUTORY AUTHORITY!! (JAs 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
24
services.”
• Recognize that you can use simplified acquisition procedures for expenditures up to $200,000
25
outside the US in support of a contingency operation , or a humanitarian or peacekeeping
26
operation (defined for this purpose as operations under Chapter VI or VII).
• Recognize when the US 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
27
any US arrearages to the United Nations.

AUTHORITIES FOR EXPENDITURES TO SUPPORT NON-US FORCES DURING PEACE

OPERATIONS:

1. Section 7 of the United Nations Participation Act (UNPA) (22 USC. ∋ 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 US. 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 US Mission to the UN in New York
(US/UN). US/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.

24
§ 8092 of the FY 97 DoD Appropriations Act. 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 JA should ensure that the recipient and
DoD good or service is covered by the notification to Congress.
25
Defined in 10 USC. § 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.

26
10 USC. § 2302(7).
27
10 USC. § 405.

25-12
 (2) 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 UN's 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.

2. Section 607 of the Foreign Assistance Act of 1961(FAA) (22 USC. ∋ 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 US 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 US 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).
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.

3. Drawdown Authorities which provide legal grounds for expending O&M funds for
specified statutory purposes (generally with only partial or no reimbursement).
28
Section 506(a)(1) Foreign Assistance Act (Military Assistance).

28
22 USC. § 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)

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 a. Requirement for Use. Presidential determination and report, in advance to
Congress that:
(i) An unforeseen emergency exists that requires immediate military assistance to a
foreign country or international organization; and
(ii) The emergency requirement cannot be met under the Arms Export Control Act
(AECA) or any other law.
b. 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).
c. Limitations.
(i) Purpose. Drawdown must be for a FAA subchapter II purpose. These include:
military assistance (CH 2); peacekeeping (CH 6); and anti-terrorism (CH 8).
(ii) Ceiling Amount. Assistance provided under this section is limited to an
aggregate value of $100 million in any fiscal year.
29
Section 506(a)(2) Foreign Assistance Act (Any Agency of the US Government).
a. 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.
b. Forms of Assistance. President may authorize the drawdown of articles and
services from the inventory and resources of any agency of the US government, and
military education and training from DoD (ERGO, NO AUTHORITY TO CONTRACT
UNDER THE DRAWDOWN AUTHORITY).
c. Limitations.
(i) 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.
(ii) 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).
(iii) 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).
30
Section 551 Foreign Assistance Act
a. 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 US. 22 USC. ∋ 2348.
b. Limitations. No more than $5 million may be used to reimburse DoD for expenses
incurred pursuant to § 7 of the UN Participation Act.
31
Section 552(c)(2)Foreign Assistance Act (Peacekeeping).
a. Requirement for Use. Presidential determination that:
(i) 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 US national interests; and
(ii) An unforeseen emergency requires the immediate provision of assistance; and
(iii) Reports, in advance, to Congress as required by section 652 of the FAA (22
USC. ∋ 2411).
b. Forms of Assistance. President may authorize the drawdown of "commodities and
services" from the inventories and resources of any US Government agency.
c. Limitations.

29
22 USC. § 2318.
30
22 USC. § 2348.
31
22 USC. § 2348a.

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 (i) Purpose. Drawdown must be for a purpose and under the authority of Chapter 6,
Peacekeeping Operations, of Part II of the FAA.
(ii) Ceiling Amount. Assistance provided under this section is limited to an
aggregate value of $25 million in any fiscal year.

4. Miscellaneous Authorities.
32
Section 451 Foreign Assistance Act "Unanticipated Contingency" Authority. 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.

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 US 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 JA must be familiar with UN purchasing procedures and what
support should be supplied by the UN or host nation. The JA 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 UN's refusal to reimburse for the excess. Not following proper procedure or purchasing
materials that should be provided from other sources may result in the US 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 JA should aggressively weave lawful funding authorities
with available funds in pursuit of the needs of the mission.

Convention on the Privileges and Immunities of the United Nations, 1 UNT.S. 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

32
22 USC.§ 2261.

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 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 h, 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;
(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;

25-16
 (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.
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.

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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 laissez-passer 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.
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.

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 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.

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

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attacks against, or other mistreatment of, personnel who act on behalf of the United Nations are
unjustifiable and unacceptable, by whomsoever committed, 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.

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

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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.
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:

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(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:
(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 person's 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.

25-22
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.
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 person's rights or, if such person is a stateless person, of the State which, at that person's
request, is willing to protect that person's 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;
(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

25-23
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.

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.

25-24
 CHAPTER 26
NON-COMBATANT EVACUATION OPERATIONS (NEO)

References

DOD DIRECTIVE 3025.14, NONCOMBATANT EVACUATION OPERATIONS, of November 5, 1990.

DOD DIRECTIVE 2000.11, HANDLING REQUESTS FOR POLITICAL ASYLUM AND TEMPORARY REFUGE. of March 3 ,1972
EXECUTIVE ORDER NO. 12656, ASSIGNMENT OF EMERGENCY PREPAREDNESS RESPONSIBILITIES, 3 C.F.R. 585 ('88 Compilation) 18 Nov.
88.
Chairman, Joint Chiefs of Staff Instruction 3121.01, Standing Rules of Engagement (SROE) (1 October 1994) (portions of this document
are classified SECRET).
EXECUTIVE ORDER 11850, 3 C.F.R. 980 ('71-75 Compilation) 8 Apr 75, reprinted in FM 27-10 at C.1 p. 2 (56).
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.
DoD Directive 5515.8, SINGLE-SERVICE ASSIGNMENT OF RESPONSIBILITY FOR PROCESSING OF CLAIMS, of June 9, 1990.
FMFM 8-1, SPECIAL OPERATIONS [See Chapter 7] 13 Aug. 74.
JAG INST 5800.7C, MANUAL OF THE JUDGE ADVOCATE GENERAL, Sec. 1013, 3 Oct 90.
FM 90-29, NON COMBATANT OPERATIONS, 20 May 1994.
Steven Day, Legal in Considerations NEOs, 40 NAVAL L. REV. 45, 1992.

NATURE AND CHARACTERISTICS OF NEOs

NEOs are operations directed by the Dep't of State, the Dep’t of Defense, or other appropriate
authority whereby noncombatants are evacuated from areas of danger overseas to safe havens or to
the United States.

Recent examples:
Somalia (Eastern Exit): 300 civilians, US & 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): 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.
- WLG also serves as coordinator with Regional Liaison Groups (RLG's).

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.
- Chiefs 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.

26-1
 - Within Department of Defense responsibility for NEO assigned under DoD
Directive 3025.14, dtd 5 November 1990.
- DoD assigns members from service components and JCS 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 JCS
SROE.

LEGAL ISSUES INVOLVED IN NEOs

International Law. NEOs fall into three categories: permissive (where the host country or
controlling factions allow the departure of US personnel), nonpermissive (where the host country
will not permit US personnel to leave) and uncertain (where the intent of the host country toward
the departure of US personnel is uncertain). The nonpermissive and uncertain categories raise
the majority of legal issues because “use of force” becomes a factor.

Use of Force. Because nonpermissive 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 NEOs -- a nation
could intervene to protect its citizens located in other nations when those nations would not
or could not protect them.

- U.N. Charter

Article 2(4): Under this article, a nation may not threaten or use of 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 don’t rise to the level of force contemplated by article 2(4).

Article 51: U.S. position is that article 51’s "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. Violations of territorial integrity: Planners need to know the territorial
extent of the countries in the Area of Operations. Absent consent, US 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.
- Rights of innocent passage.

26-2
 - 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 overflight
over international straights.
- Note that airspace and territorial sea boundaries are not a consideration for the target
nation of a nonpermissive NEO.
- Rights and duties of neutral states. Neighboring states may have concerns that
permitting overflight 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
stop-over point where evacuees are initially taken once removed from danger. They are then
taken to their ultimate destination.

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,& 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
- US Commanders may not grant political asylum to foreign nationals.
- Immigration and Naturalization Service, Department of Justice is lead agency for granting asylum
requests. They 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 request is forwarded via immediate message to ASD
(International Security Affairs) and applicant referred to appropriate diplomatic mission.
-Temporary refuge will be granted (if requestor 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: applicant "received" and request for asylum forwarded to DoJ.
-Do not surrender applicant to foreign power without higher headquarters approval (MilDep
level).

Law of War Considerations

- Rule of Thumb: follow targeting guidance of Hague Regulations, Geneva Conventions, and 1977
Protocols REGARDLESS of whether NEO is "international armed conflict." Use of Force
guidance for NEOs found in Enclosure A, JCS SROE.

- Tactics. RCA: EO 11850 (RCA policy) applies in international armed conflict. Will probably need
NCA approval before commanders may authorize its use in a NEO. Use JCS SROE to request
RCA capability if desired.

- Drafting ROE.
- If possible, coordinate CINC forces ROE with ROE of Marine Security Guards (who work
for Dept of State), Host Nation Security, and Embassy Security.
- As always, ensure inherent right of self-defense is addressed adequately.

Search Issues

Search of Evacuee's Luggage and Person.

26-3
Baggage will be kept to a minimum and civilians will not be allowed to retain weapons.
Diplomatic Personnel. (Vienna Convention on Diplomatic Relations).
- Person and personal luggage are inviolable if the Diplomat is accredited to the US (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 US transportation. If
diplomat refuses to be searched -- to include their diplomatic bag, CDR may refuse
transportation.

26-4
 CHAPTER 27
INTERNET WEB SITES USEFUL FOR OPERATIONAL LAWYERS

2025 http://www.au.af.mil/2025/2025home.html

African National Congress http://www.anc.org.za/

AirForce Link http://www.ditic.dla.mil/airforcelink/

Air Power Journal http://www.cdsar.af.mil/apje.html

ABA http://www.abanet.org

Armed Forces Staff College http://www.ndu.edu/ndu/afsc/afsctop.html

Army Knowledge Network http://leav-www.army.mil:80/akn/

Army Link http://www.army.mil/

Army Regulations http://www-usappc.hoffman.army.mil

Associated Press http://www1.trib.com/new/f_listintro.html

Association of the United States Army http://www.ausa.org/

Australian Defence http://www.adfa.oz.au/DOD/dodhmpgn.html

Automated Historical Archives System http://leav-www.army.mil/akn/ahas.htm

Battle Labs (TRADOC) http://157.185.5.3/DefaultBL.html

Bosnia Link http://www.ditic.dla.mil/bosnia/

See also http://www.cco.caltech.edu/
bosnia/bosnia.html

Brookings Institution http://www.brook.edu/

Cable News Network

http://www.cnn.com/
http://ww2.cnn.com/world/indes.html (CNN World News)
http://www.cnn.com/weather/index.html (CNN Weather)
http://www.allpolitics.com/ (CNN/TIME AllPolitics)

Center for Army Lessons Learned http://call.army.mil:1100/call.html

Center for Defense Information http://www.cdi.org/

Center for Disaster Management & Humanitarian Assistance

http://website.tamc.amedd.army.mil/

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.army.mil.usacsl/

27-1
Central Intelligence Agency http://www.odci.gov/CIA

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)

Code of Federal Regulations http: www.access.gpo.nara/cfr

College and University Home Pages http://www.mit.edu:8001/people/ cdemello/univ.html.

Combined Arms Research Library http://www-cgsc.army.mil/cgsc/carl/carl.htm

Commander’s Conference http:// 204.7.227.67/force21/confrnce/conf-toc.html

Conflict Studies Research Centre gopher://marvin.stc.nato.int:70/00/secdef/csrc/csrcmain.txt

Congressional E-mail Directory http://www.webslingerz.com:80/jhoffman/congress-e-mail.html

Congress
gopher://gopher.senate.gov
http://www.house.gov

Country Studies (DoS) http://www.access.gpo/su_docs/aces820.html

Court opinions
http://www.mindspring.com/
wmundy/opinions.html (11th Cir.)
http://www.law.emory.edu (includes decisions for 4th, 6th, and 11th Cir.)
http://www.law.vill.edu (includes decisions for 3rd & 9th Cir.)

Criminal Justice sites http://broadway.vera.org/pub/ocjsites.html

Defense Intelligence Agency http://www.dtic.dla.mil:80/defenselink/

Defense Link
http://www.dtic.dla.mil/defenselink
http://www.dtic.dla.mil/adm/ (source for Dep’t of Def. Directives)

Defense Technical Information Web http://www.dtic.dla.mil/dtiw/

Demining http:www.demining.brtrc.com

Department of Defense Directives and Instructions: http://www.dtic.dla.mil/adm

Department of National Defence http://www.dnd.ca/dnd.htm

Department of Justice http://www.usdoj.gov

Department of State http://dosfan.lib.uic.edu:80/dosfan.html See also http://www.state.gov and

gopher: dosfan.lib.uic.edu port 70

Department of Treasury http://www.ustreas.gov

Electronic Headquarters for the Acquisition of War Knowledge (EHAWK)

http://www.olcommerce.com/cadre/index.html

27-2
Embassies http://www.embassy.org

Environmental Protection Agency http://www.epa.gov

Europa http://www.cec.lu/

Eurpoean Line http://www.europeonline.com (provides latest info on events in europe)

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

FedWorld http://www.fedworld.gov/ - FedWorld (a one-stop location to locate/order USG

documents)

Fletcher Forum http://www.tufts.edu/fletcher/forum.html

FM525-5 http://204.7.227.67/force21/tradoc525/525-5toc.html

Force XXI http://204.7.227.67/f21home.html

Forces Command (FORSCOM) 160.136.17.213 or www.forscom.army.mil/jag

Foreign Affairs http://www.enews.com:80magazines/foreign_affairs

Foreign Military Studies Office http://leav-www.army.mil/fmso/fmso.htm

Foreign Policy http://www.enews.com:80/magazines/foreign_policy

France Defence http://www.ensmp.fr/
scherer/adminet/min/def/

General Accounting Office http://www.gao.gov

General Service Agency http://www.legal.gsa.gov (contains over 1,400 site links)

German Information Center http://langlab.uta.edu/langpages/GIC.html

Government Printing Office (GPO) Access

http://www.access.gpo.gov/su_docs/aces/aaces001.html, or;
http://thorplus.lib.purdue.edu/gpo/

Hoover Institution http://hoover.stanford.edu/

House National Security Committee http://policy.net/capweb/House/HComm/hns.html

House of Representatives http://www.house.gov/

Human Rights http://www.umn.edu/humanrts (Univ. Of Mn. Human Rights library)

IANWeb http://www.pitt.edu/
ian/

Industrial College of the Armed Forces http://www.ndu.edu/ndu/icaf/icafhp.html

Information Warfare http://www.infowar.com

27-3
Institute for National Strategic Studies http://www.ndu.edu/ndu/inss/insshp.html

Institute for the Advanced Study of Information Warfare http://www.psycom.net/iwar.1.html

IntelWeb http://www.awpi.com/IntelWeb/

Intelligence Related links http://www.fas.org/pub/gen/fas/irp/intelwww.html

Internal Revenue Service (IRS) http://www.irs.ustreas.gov/prodI

International Committee of the Red Cross http://www.icrc.org

International Court of Justice Opinions http://www.law.cornell.edu/icj/

International Criminal Tribunal For the Former Yugoslavia hppt://www.cij.org/tribunal

International Institute for Strategic Studies http://www.fsk.ethz.ch/d-

reok/fsk/iiss/iisshome.html

International Laws and Treaties

http://www.tufts.edu/departments/fletcher/multilaterals/warfare.html
gopher://gopher.peachnet.edu (Eastern European Info)
http://solar.rtd.utk.edu/
nikforov/main.html (Russia legal info)
http://www.jura.uni-sb.de (contains German & European codes)

International Tribunal Resources

http://jagor.srec.hr/
mprofaca/tribunal.html (includes Tokyo & Nuremburg)
http://www.umn.edu/
vuksan/mario/tribunal.html

International Organizations gopher://gopher.enews.com/11/magazines/alphabetic/all/iorg

International Security gopher://gopher.enews.com/11/magazines/alphabetic/all/int_security

International Security Network http://www.fsk.ethz.ch/d-reok/fsk/defs_hom.html

Jaffe Center for Strategic Studies http://www.tau.ac.il/jcss/

Janes’s Information Store http://www.janes.com/janes.html

Joint Chiefs of Staff http://www.dtic.dla.mil:80/defenselink/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.sps.cam.ac.uk

Judge Advocate General Corps (Army) http://www.jagc.army.mil

Judicial sources http://www.yahoo.com/government/judicial_branch

Justice Information Center (NCJRS) http://www.ncjrs.org/drgs.docs.htm (drugs & crime Docs)

Legal Research
http://lawsearch.com/index.htm
27-4
 http://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/

Marshall Center http://www.marshall.adsn.int/marshall.html

Military Spending Working Group http://www.clark.net/pub/gen/mswg/

MILNET http://www.onestep.com/milnet/

Ministry of Defense (U.K.) http://www.mod.uk/

Ministry of Foreign Affairs http://www.nttls.co.jp/infomofa/

Multilateral Treaties gopher://gopher.law.cornell.edu/11/foreign/fletcher

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/pub/gen/fas/irp/nsa/

National Technical Information Service http://www.fedworld/gov/ntis/ntishome.html

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

News Briefings from the ANC http://pantheon.cis.yale.edu/
jadwat/anc/

News http://www.leadstory.com (summary of leadstories in major newspapers)

See also individual homepages (i.e., CNN, U.S. News & World Report)

OMRI (Open Media Research Institute) Daily Digest

http://www.omri.cz/Publications/digests/digestindex.html

Organization of American States http://www.oas.org/

27-5
Peacekeeping Institute http://carlisle-www.army.mil/usacs/pki

Personnel Command (Army) http://www-perscom.army.mil

RAND Corporation http://www.rand.org/

Search tools http://www.lycos.com

http://www2.infoseek.com
http://www.excite.com
, http://www.altavista.digital.com
http://www.yahoo.com
http://www.mckinley.com
http://www.pointcom.com

Senate http://www.senate.gov

Senate Armed Services Committee http://policy.net/capweb/Senate/SenateCom/Armed.html

Smithsonian Institution http://www.si.edu

Social Security Administration http://www.ssa.gov

Standards of Conduct http://www.dtic.mil/defenselink/dodgc/

Stockholm International Peace Research Institute (SIPRI) http://www.sipri.se/

Strategic Studies Institute http://carlisle-www.army.mil/usassi/

Time Magazine http://www.pathfinder.com

TRADOC http://www-tradoc.army.mil/

Treaties See United Nations

Unified Commands
http://www.dtic.dla.mil:80/defenselink/unified.html
http://www.acom.mil (ACOM)
http://ustcweb.safb.af.mil (TRANSCOM)
http://199.56.154.3/ (EUCOM)
http://www.dtic.dla.mil/defenselink/factfile/chapter1/pacom.html (PACOM)
http://www.dtic.dla.mil/defenselink/factfile/chapter1/southcom.html (SOUTHCOM)
http://www.dtic.dla.mil/defenselink/factfile/chapter1/centcom.html (CENTCOM)
http://www.dtic.dla.mil/defenselink/factfile/chapter1/spacecom.html (SPACECOM)
http://www.dtic.dla.mil/defenselink/factfile/chapter1/socom.html (SOCOM)

United Nations http://www.un.org/ or gopher://nywork1.undp.org:70/1

http://www.un.org/cgi-bin/Treaty2.pl/ (provides direct access to the UN’s Treaty
data base)
http://www.un.org/depts/dhl/pkrep.htm (UN PKOs)

United Nations Scholars’ Workstation http://www.library.yale.edu/un/unhom.htm

USAREUR, HQ FWD OJA (in support of IFOR) http://199.123.110.242/jaghome.htm

United States Agency for International Development http://www.info.usaid.gov

U.S. Army Command and General Staff College http://leav-www.army.mil/

27-6
United States Code (U.S.C.) http://www.law.cornel.edu/uscode

U.S. Congress (Thomas) http://thomas.loc.gov/

http://law.house.gov (lots of hypertext links to other law homepages)

U.S. Government (General) http://www.fedworld.gov

United States Institute of Peace http://witloff.sjsu.edu/peace/usip.html

U.S. Information Agency http://www.usia.gov

U.S. Marine Corps: See MarineLink

United States Military Academy http://www.usma.edu/

U.S. News & World Report http://www.usnews.com

U.S. Supreme Court Info http://www.law.cornell.edu/supct/supct.table.html

See also http://www.uscourts.gov

USA Today http://www.usatoday.com/

Veterans Affairs http://www.va.gov

Virtual law library http://www.law.indiana.edu/law/lawindex.html

Voice of America http://niss.ac.uk/news/voiceofam.html

Weather info http://www.nws.noaa.gov (Nat’l Weather Service)

http://cirrus.sprl.umich.edu/wxnet

Web Crawler http://webcrawler.com/

West’s Legal Directory http://www.wld.com

White House http://www.whitehouse.gov/

Executive Orders http://www2.whitehouse.gov/?request=ExecutiveOrder

World News Connection http://wnc.fedworld.gov/haroldkl/index.html

Yahoo WWW Server http://www.yahoo.com/Government/law

Also, the following newsgroups contain information and access to information that may be of value
to the deploying judge advocate:

alt.child-support
alt.current-events
alt.dear.whitehouse
aus.legal
misc.taxes
relcom.comp.law
us.legal
us.politics

27-7
 CHAPTER 28
RUCKSACK DEPLOYABLE LAW OFFICE LIBRARY

I. INTRODUCTION

The rucksack deployable law office and library (RDLOL) is a set of computer components that usually
include: a 586 megahertz laptop computer with a minimum of 16 megabytes of random access memory,
removable hard drives which can store at least 810 megabytes of information, a CD ROM drive, a
scanner, a digital camera, a pcmcia modem card, and a portable color printer. The RDLOL is a set of "off
the shelf" capabilities, and not a particular brand name. As a result, this chapter is intentionally generic in
nature to make it applicable to all versions.

The RDLOL represents a significant asset to the deployed judge advocate. With proper use of the
system and a communications link, the judge advocate can have almost limitless access to legal resources.
Set out below is information that will help you master its capabilities.

II. TRANSPORTATION

A. Components. The entire RDLOL system has three main components.

1. The laptop computer and the soft carrying case with various software and modem attachments.
8 lbs.
2. The tundra case containing the printer, extra print cartridges, camera, scanner, cables and
other accessories. 43 lbs.
3. The satellite phone (sat phone), and battery. 6 lbs. + battery.

B. Non-Airborne Unit Transportation. Before the deployment, the judge advocate must make a
determination of which components will be carried on his person (rucksack) and what items will be shipped
on pallets as follow-on equipment. If possible, the laptop computer and the satellite phone should be
carried on his person. It is important that the judge advocate pay close attention to how the tundra case
is packed on the deployment pallet. Ensure that it is packed between duffel bags if possible, to provide
protection. Also ensure that the pallet will be sent to a destination where the JA can retrieve the tundra
case. For example, if the tundra case is on a pallet of D-bags which is headed for the brigade supply area
(BSA) and the JA is in the brigade tactical operations center (TOC), the JA might not see the remaining
components of the RDLOL for several days.

It may be necessary (though strongly inadvisable), to place the laptop and the sat phone inside the
rucksack which is going to be palletized. If so, the JA should pack the components as described for
airborne deployment.

C. Airborne Units Transportation. Transporting the RDLOL for the airborne JA presents unique
challenges. The laptop and the satellite phone must be properly padded inside the rucksack to withstand
the impact of a parachute landing fall (PLF). One proven technique is as follows:

1. Obtain three 2 X 2" sheets of bubble-wrap with duct tape to wrap the laptop and the
sat phone.
2. Place the laptop in the middle of one sheet of bubble-wrap.
3. Fold the bubble-wrap over the laptop and secure it with duct tape.
4. Flip the laptop over and place it in the middle of the second sheet of bubble-wrap.
Repeat step three.
5. Wrap the bubble-wrapped laptop in a poncho-liner and poncho for extra padding and
water resistance.
6. Use the remaining piece of bubble-wrap to pack the sat phone.
7. Pack the laptop in the rucksack on top of all personal items (extra BDUs, towel, socks,
etc.) which will provide extra padding.
8. Place the sat phone on top of the laptop which will provide extra shock absorption.

28-1
 The airborne JA must carefully pack and choose his personal gear because the bubble-wrapped laptop
and sat phone will consume 1/2 of available rucksack space.

III. POWER

A. Electricity. As configured, the RDLOL is capable of being powered by any power source which
provides 90-240 volt alternating current. Practically speaking, you will be able to meet power needs if you
have access to any of the military generators typically used as power sources in a tactical operating
command post. If deployed to a country which operates on a 240 volt system, care should be taken to
ensure that your version of the RDLOL is compatible with this type of power (typically, accessing this type
of power requires a differently configured plug for the wall receptacle and may require a power converter;
make certain to check the manuals that came with the computer).

B. Battery. The RDLOL is typically equipped with an internal, rechargeable battery pack which,
when used judiciously, will provide hours of portable operation. The battery pack will recharge whenever
the system is plugged into any AC power source, regardless of whether the system is on (although the
battery will charge more quickly when the system is off). All RDLOLs have an additional battery pack and
charger, making it possible to charge one battery while the other is being used. Make certain you check
the literature for the system to correctly identify the LED indicators and what they mean. They often are
programmed to help you determine the status of your battery charge.

C. DC/AC Converter. Technology exists (at a minimal cost), to use direct current batteries such
as HMMWV batteries to power the RDLOL. Before attempting to do so, make certain you have the
correct equipment and an understanding of how the converter is used.

IV. SET UP

YOU MUST BE PROFICIENT WITH THE RDLOL BEFORE YOU DEPLOY. Attach masking tape
to each of the cords and label them with the name of the component they are attached to. It is also
important to be able to set up the system in limited visibility (if you cannot set the system up in a dark
room, you must train until you can). To set up the RDLOL, do the following:

1. Find a dry, level location near an AC power source (brigade TOC).

2. Connect power cord to the surge protector and laptop.
3. Set the sheet feeder assembly for the printer on a flat surface. Slide the main printer
assembly into the empty slot on the sheet feeder at a 45 degree angle. Slide and hold the
gray sheet feeder adjustment button and push the sheet feeder up to a 45 degree angle.
Extend both paper holder arms up to the ready position.
4. Connect the male portion of the printer cable to the female reciprocal on the main
printer assembly. Connect the other end of the cable to the laptop. Plug the printer
power cable into the surge protector.
5. Connect the scanner cable to the back of the laptop and to the scanner. Connect the
scanner power cable to the scanner and the surge protector.
6. NOTE: The digital camera uses the same input port as the scanner. Only one of
these may be connected at a time. The laptop will not recognize the scanner unless the
scanner is hooked-up when the computer is initially powered on.

V. CONDUCTING A FUNCTIONS CHECK

At the beginning of every shift change in the brigade TOC, a functions check should be performed on
the entire RDLOL system. The functions check is a specified set of tasks performed in sequence to
ensure that all the components of the RDLOL are functioning. If a problem is identified it can be fixed
before a mission need arises for the system. Below is an example of a functions check on the RDLOL:

1. Ensure the CD ROM drive is operational.

2. Ensure the floppy disk drive is operational.
3. Ensure the printer and scanner are operational.

28-2
 4. Ensure the digital camera is operational
5. Ensure the satellite phone is operational
6. Check to see if the E-mail capability is up.
7. Check to see if the JA can access the Lotus notes
data base.
8. Check to ensure the RDLOL still has access to the MSE.

VI. MAINTAINING THE SYSTEM

Unless the RDLOL is kept free from the dirt and grime of the field it will cease to function. It is
advisable to perform maintenance on the system at least twice a day. The following materials will be
needed to maintain the system:

- one can of compressed air

- one fine hair brush
- several "baby wipes"
- clean rags

Remember! Clean the screen of the laptop with the fine hair brush not with the "baby wipes." Pay
particular attention to cleaning the CD ROM drive and the areas around the keyboard. When cleaning the
printer, concentrate on the area around the feedtray.

VII. INTERNET ACCESS

In order to gain internet access, you must have connectivity through some type of internet service
provider. Such a provider furnishes the on-ramp for you to get to the researching and data transferring
capabilities of the internet. Service providers come in many packages. Many of us already have internet
connectivity through our local metropolitan area networks which furnish our installation specific e-mail
services (this is typically through some type of ethernet card connection).

It is unlikely that you will have this capability when deployed and accordingly, to gain access to the
internet you must find an alternative service provider. Many people gain this by utilizing one of the common
providers like America On Line or CompuServe (utilizing the modem card provided with the RDLOL).
Alternatively, access might be obtained through official means (e.g., the G-2).

Once access to the internet has been obtained, you can use one of the standard software
packages such as Netscape or Internet Explorer to reach the internet addresses contained in Chapter 27
of this handbook. Simply place the cursor on the internet address line (commonly referred to as the URL
or HTTP line), and type the address. After you hit enter, the web page for that address will be summoned.

VIII. CAMERA

A. Hardware: Utilize the digital camera just as you would any normal camera. Turn the camera
on by opening the lens cap, then capture your images. When you want to view the images or transfer
them to your hard drive, you must connect the camera to the laptop computer before you turn on the
computer (this allows the software to recognize that the camera is an accessory which is attached to the
computer). The camera must typically be on when transferring data from the camera to the computer.
Note that most digital cameras are turned on by opening the lens cover cap; the longer you leave this cap
open, the more you will drain the lithium batteries. Make certain you take extra lithium batteries with you
for backup.

B. Software: Just as with the scanner, you must make certain that you have become familiar with
the software that comes with the camera. You must also familiarize yourself with the camera so that you
understand how to turn it on and capture images. To have your computer recognize the camera, you must
attach the camera to the computer before you power up the computer. Make certain that your camera
software has been installed on your computer. Once you are certain it is there, enter the
software, test your serial port connection by using the program provided with your software, and then

28-3
enter the image transfer software. Transfer the images from the camera to the computer and save them
on the computer. Once this is done, you may delete the images on the camera to free up memory for
additional photographs. After you have transferred the images, you may use the editing features that are
part of the software package to enhance or frame the photograph in the desired fashion.

IX. E-MAIL PHOTOGRAPHS

The key to transporting a photograph via e-mail is to ensure that the person receiving the photograph
has the software capability to view the photograph. Attaching the photograph to an e-mail message is
simple: once you have written your e-mail message, simply use the attach feature of your e-mail software
and attach the photograph to the message. You must first know the name of the photograph and the sub-
directory the photograph is stored in. The message will then automatically "drag" the photograph with it to
the intended destination. The more difficult issue is whether the person receiving the photograph has the
software capability to view it. There are many different image storage formats (bmp, tiff, gif, pcx, etc.).
Each of these formats has advantages and disadvantages largely defined by the compression features of
the format. Microsoft Windows (the standard computer operating system), supports the viewing of bmp
files (in the Paint program) and bmp, tiff, pcx, wmf, and JPEG in Powerpoint.

Before you attach the photograph to the e-mail message, you should save it in one of these formats
from within the camera software application (bring up the image, click on file, click on save as, and then
save file as type. Now change the format to the one you want and then click on ok. Now, simply attach
the photograph to your message.

X. SCANNER USE

A. Software. In order to utilize the scanner that accompanies your system, you must first
become familiar with the scanner software. To have your computer recognize that a scanner is attached,
you must attach the scanner to the computer before you power up the computer (see "How to Set the
System Up," earlier in this chapter). Make certain that your scanner software has been installed on your
computer. Once you are certain it is there, enter the software and insert your material to be scanned (one
sheet at a time), into the scanner.

After your material has been scanned, you will see an image on your screen. This image may be
routed from the scanner software to one of five output devices: the printer (which allows you to use the
scanner as a low speed, field expedient copier), some type of e-mail service, the internal fax modem that
is a part of your modem card, Microsoft Word (where OCR software allows you to convert it into a word
document, allowing you to perform textual modifications), and the Microsoft Paintbrush program (which
allows you to graphically manipulate data such as pictures).

Most scanner software packages come with a fairly comprehensive guide on the use of the
scanner. Take the time to understand how the system works before you take it to the field, need it, and
find out you do not have the software properly loaded or configured. When you scan a document or
picture, make certain that you have properly configured the software to recognize the type of material you
are scanning. If the software is set to look for a paper product and you are scanning a photograph, your
resolution will not be as clear and your photograph may not appear on your screen in color.

XI. HOW TO USE THE SATELLITE PHONE (Assuming use of a HMMWV battery as power source)

1. Open the satellite phone array, directing the antenna portion towards the correct
satellite (this method will vary from sat phone to sat phone but typically you orient the
phone to the satellite using the satellite orientation signals that are on the phone indicating
relative strength of connection).
2. Open the seat cover on the passenger side of the HMMWV to expose the two
batteries.
3. Connect the phone handset to the main assembly. Ensure that the phone set is turned
to the "off" position.

28-4
 4. Connect the power cable to the main assembly. Connect the male end of the power
cable to the female end of the battery adapter. Make sure there is a solid connection
between the male and female portions.
5. Insert the phone usage card or "credit card" in the slot in the main assembly.
6. Hook-up the black alligator clip to the negative terminal on the HMMWV battery. The
negative terminal is marked with a "-".
7. Hook-up the red alligator clip to the positive terminal on the HMMWV battery. The
positive terminal is marked with a "+".
8. The power display on the main assembly should now be oscillating and showing various
levels of signal strength. Adjust the antenna array both up and down and side to side until
the oscillating signal is at its strongest.
9. The system is now ready to receive messages. The handset will ring when an
incoming signal is received.

XII. TROUBLE SHOOTING

Make certain you perform the functions check and routine cleaning mentioned earlier in this chapter
and bring your component manuals with you (if possible). If something does not work, start with the
basics. Is it turned on? Is it connected to the computer? Is the connection solidly seated? Are you using
the proper cable for the component? If you are not successful with this inspection and you are computer
illiterate, the easy answer is to find the wire-head who can resolve the problems for you. If no-one in the
immediate vicinity fills that position, consult the manuals for the components that are not working and begin
problem solving.

XIII. FINAL CAVEAT

While this chapter has been designed to provide some quick tips for the JA, the manuals come with the
computer and components for a reason. By the time you have read this chapter, it may be obsolete as
technology continues to improve. Your version of the RDLOL may not specifically match the one used in
authoring this chapter. Be flexible, establish your base line level of competence with the RDLOL before
your deploy, and read your manuals before you deploy. Use them before you incur the $3,500 Report of
Survey.

28-5
 APPENDIX A
AIR FORCE
One strength of our DESERT STORM air campaign was our adherence to the law: our JAGs defined
the legal envelope and we stayed within it. We are committed to forging closer ties between law and
operations.
MG David C. Moorehouse, USAF Former Judge Advocate General

Operations law in the US Air Force is not significantly different than that practiced in the other
services. What sets it apart, however, is its particular focus on air and space operations. The Air Force's
"bible" in this area is AFP 110-31, The Conduct of Armed Conflict and Air Operations. Like FM 27-10, it
applies the treaties and customs governing war to the way we conduct operations. Judge advocates
trained in international and operations law can be found on the legal staffs of most unified commands. Air
Force policy in the operations law area however, is established at the International and Operations Law
Division, Office of The Judge Advocate General, HQ US Air Force (HQ USAF/JAI) Pentagon room 5E313,
Washington, DC 20330-1420 (703-695-9631, DSN 225-9631).

References

AFP 1-1, Volumes I & II, Basic Aerospace Doctrine of the US Air Force, Mar 1984
AFP 110-31, Conduct of Armed Conflict & Air Operations, 19 Nov 76
AFI 51-401, Training & Reporting to Insure Compliance with the Law of Armed conflict, 1 Jul 1994
AFI 51-402, Weapons Review, Mar 1994
The AF & US National Security: Global Reach--Global Power, Jun 90
AF/JAI Primer on Legal Issues in Information Warfare

Overview

Basic aerospace doctrine states that the objective of aerospace forces is to win the aerospace
battle--to gain and/or maintain control of the aerospace environment and to take decisive actions
immediately and directly against an enemy's warfighting capacity. As was most recently demonstrated in
DESERT STORM, the capability to perform this mission can greatly multiply the effectiveness of the overall
land/sea/air force. The specific combat missions performed by the Air Force include strategic aerospace
defense, strategic aerospace offense, counter air, air interdiction, close air support of ground forces,
special operations, airlift, aerospace surveillance and reconnaissance, and aerospace maritime operations.
AFM 1-1 contains detailed descriptions of each of these.

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. Many of them are taken from our recent experiences in Operation DESERT STORM.

Even before bombs are dropped on targets, all service judge advocates are responsible for reviewing
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.
As the Dec 1991 issue of the ABA Journal reported, the Air Force had a JAG on the staff of General
Horner's targeting cell. His job was to review proposed target folders to determine whether the target,
munitions to be employed, and objective sought to be achieved complied with the law. He was not just a
"rubber stamp"; his advice led to the modification of many proposed targets and kept air operations well
within the laws of armed conflict. Although EPW (enemy prisoner of war) matters reside within the Army's
executive control, the Air Force is the DOD executive agent for POW issues (issues involving US 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.

A-1
 Operations law also applies to many peacetime issues. Matters involving the right of military aircraft
to fly around the world are handled by operations lawyers, as are questions regarding our rights and
responsibilities in space. Law of armed conflict training for all our personnel is a common, and often very
difficult and time consuming duty for operations lawyers in all the services.

New forms of warfare are as challenging to the Air Force as to the other services. Counterdrug
operations are now conducted by the Air Force 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 MacDill AFB,
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),
US Air Forces in Europe (USAFE), and Pacific Air Forces (PACAF) provide operational support to the
unified commands of which they are components. At an echelon below MAJCOM 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, JAGs 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 lawyer's primary responsibility is to insure that those efforts are conducted within the
boundaries of international and domestic US law. Our success at that mission during DESERT STORM
made the US Armed Forces not only more effective and efficient, but also deserving of the respect it
received.

A-2
 APPENDIX B
MARINE CORPS

Mission: The Marine Corps' (MC) 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 follow on land operations as necessary." In
addition, the MC provides detachments and organizations for service on Navy vessels, security
detachments and such other duties as the President may direct. This broad mission statement translates
into a MC that is many different things to many different people.

Consequently, the ground, air, and supporting forces that make up the MC are trained and equipped to
make available to the NCA the capability to react quickly to any military contingency in the world--a "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 NEO such as "Operation Eastern Exit,"
the evacuation of US 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. (Concepts and Issues,
USMC, available from Mr. Jim Stewart, DSN 224-1503).

Force Structure

A. Structure. The Marine Corps is organized as the nation’s “force in readiness” into three broad
categories: Operating Forces, Reserves, and the Supporting Establishment. The principal power
projection components are the Operating Forces (as supplemented by the Reserves) who constitute the
forward presence, crisis response, and fighting power available to the CINCs. Operating Forces are
made available from four (3 active, I reserve) Divisions, Wings, and Force Service Support Groups
(FSSG). According to Title 10, U.S. Code, "[t]he Marine Corps, within the Department of the Navy, shall be
so organized as to include not less than 3 combat divisions and 3 aircraft 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 174,000 active duty Marines and 42,000 Reserves.

The combat service support function is performed by the Force Service Support Groups (FSSG).
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 staff JA and a small legal staff consisting of a deputy
and two or three clerks. The bulk of the legal assets remain in the LSSS.

B. Task Organization. In order to meet mission oriented expeditionary requirements, the MC has
developed the concept of [Marine Air Ground Task Forces] MAGTF organization. It is a building block
concept; the fleet/joint commander's operational requirement or task is analyzed, and type units are drawn
from a Marine division, aircraft wing, and force service support group [FSSG] into and 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 a MAGTF command element [CE], a ground combat element [GCE] (under certain

B-1
conditions, more than one), an aviation combat element [ACE], and a combat service support element
[CSSE].

As the US reduces the number of its permanently based overseas military forces, forward-deployed,
self-sustainable, 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.

For instance, Operation SEA ANGEL in Bangladesh involved the 5th Marine Expeditionary Brigade
(MEB), diverted from its return to CONUS after 5 months in Desert Shield/Storm. During its mission, 5th
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 US Agency for International Development.

The CGs of Fleet Marine Force Atlantic and Pacific exercise command over all division, wings and
FSSGs. In response to a mission received from the operational (warfighting) CINC, the FMF commander
"builds" the MAGTF to meet the specifically assigned mission, using the assets available to him from the
wing, division and FSSG. He then assigns a commander for the resulting MAGTF and "chops" (change of
operational control) the MAGTF to the warfighting CINC.

The traditional types of MAGTFs are: a Marine Expeditionary Unit (MEU) and a Marine Expeditionary
Force (MEF). A MEU generally consists of a reinforced infantry battalion, a reinforced helicopter
squadron, a MEU service support group--which provides combat service support--and a command
element. A MEF can consist of one or more divisions and aircraft wings, together with corresponding
combat support and force service support groups. Each type of MAGTF has operational law judge
advocates assigned.

Current operational tempo calls for 2 MEU (SOC)s (Special Operations Capable) to be deployed
aboard amphibious shipping at all times. These units generally operate in the Western Pacific and the
Mediterranean areas. MEU(SOC)s often train for operations to be executed within 12 hours of receipt of
the mission.

For example, during Operation Eastern Exit in Jan 91, Marine helicopters launched from Navy ships at
night, from over 400NM 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.

Capabilities

MAGTFs are general purpose expeditionary forces with the ability to conduct special operations; thus
giving the National Command Authority the ability to prevent or respond to crises before they become
major conflicts. Probable missions include the protection of U.S. citizens and property overseas, NEO,
anti-terrorist operations, special operations, disaster relief, nation-building, limited strikes and full-scale,
joint combat operations. An overriding requirement for MAGTFs, and especially MEU(SOC) MAGTFs, is
the ability to plan rapidly and effectively for the execution of a real world contingency with the forces, lift,
logistics and enemy situation at hand. To this end, MAGTFs deploy by amphibious shipping and air lift and
are sustained on the ground by Maritime Prepositioned Ships (MPS) or other prepositioned equipment. In
Desert Shield/Storm, for example, the MC deployed several MAGTFs aboard amphibious shipping, by
strategic airlift, and by MPS. The MEF ashore was specifically tailored for combined arms warfare against
a mechanized threat. It was a corps-sized force of 2 divisions, and expanded aircraft wing, and a combat
service support command equivalent to 2 force service support groups. The MAGTF afloat, on the other
hand, was a brigade size unit task organized to conduct forcible entry operations from the sea.

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 After a decade of theory, the MPS got its first real world test in the Gulf War. The MPS program,
which began in 1981, consists of 13 self-sustaining, roll-on/roll-off ships operated by the Military Sealift
Command (MSC) and organized into 3 MPS squadrons. Each MPS squadron provides enough tanks,
artillery, vehicles, ammunition, supplies, food, fuel, and water to support a brigade size unit for 30 days of
combat. The ships can be used separately or in larger groups to support smaller or larger MAGTFs. A
single MPS ship is capable of supporting a MEU for 30 days. In Operation Fiery Vigil, for instance, a
single MPS ship helped support and evacuate over 17,000 people as Marines assisted with emergency
relief following the June 1991 eruption of Mount Pinatubo in the Philippines. During Operation Desert
Shield, MPS demonstrated its responsiveness. Within two weeks following the Iraqi invasion of Kuwait, an
entire squadron of MPS ships had sortied offshore of Saudi Arabia and provided logistic support to Marine
and Army units on the ground; thus buying valuable time for Army logistic trains to get into place for
sustained support.

Role of the Marine Operational Lawyer

In a nutshell, as the MC is many things to all people, so to the Marine operational JA must be many
things to the units he or she supports. As a result, an OPLAWYER in the MC should strive to be involved
in and familiar with the operations planning and plan review process as well as functionally proficient in the
more traditional tasks of legal assistance, claims, military justice, and admin law. The specific role of the
Marine operational lawyer, however, is in large part 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
proficient technically but must continue to acquire and hone those military skills that readily identify Marine
JAs with the elite units they support. 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 attorneys 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. These duties, however, rarely consume the JA's time. As a result,
JAs have traditionally performed a variety of additional non-legal duties, such as assistant operations
officer, staff secretary, adjutant, or custodian of classified documents and cryptographic equipment.

In the final analysis, however, it is the expeditionary nature of the mission that sets the tone for the
practice of OPLAW in the MC. Because expeditionary operations will necessarily involve ground, air and
sea forces, the MC operational lawyer must be familiar with the law of land warfare as well as the law of
the sea, air and space. While the MC rarely is involved in overseas stationing, the Marine JA must
nevertheless be familiar with stationing agreements and applicable SOFAs in addition to the foreign claims
process and contingency contracting in order to support adequately short-term deployments to foreign
countries. Furthermore, the MC's 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 an appreciation for the combat considerations
that may require the modification of ROE to the specific mission.

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 APPENDIX C
NAVY

The 1995 National Military Strategy contains three components: peacetime engagement, deterrence
1
and conflict prevention, and fighting and winning Our Nation's Wars. The Navy plays a key role in
accomplishing these goals through its role in the National Military Strategy's two complimentary strategic
2
concepts of overseas presence and power projection. 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 Service's response to this new 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
3
littoral region as consisting of a seaward and landward portion. To accomplish this strategy, naval forces
will emphasize the traditional expeditionary roles of naval forces, an eagerness to conduct joint operations,
4
the need to operate forward, and the need to tailor forces for National Needs. The strategy recognizes
that future operations will have a significant joint/combined flavor. Operation Uphold Democracy (Haiti) is
5
an excellent example of this strategy at work.

The fundamental building blocks of this strategy are the Marine Air Ground Task Force (MAGTF),
discussed in the previous appendix, and the aircraft carrier battle group (CVBG). The CVBG consists of
the carrier 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. It will be 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
6
who is assigned to the admiral's staff.

This littoral strategy provides unique opportunities for judge advocates operating in this environment
because it presents significant legal challenges. Two examples illustrate this point. First, drafting rules of
engagement will require significant attention as a result of diminished response times and the likelihood of
target discrimination problems in heavily populated coastal areas. Furthermore, operating in this region will
also require extensive familiarity with freedom of navigation and overflight issues treated in the United
7
Nations Convention of the Law of the Sea (UNCLOS III).

1
Chairman, Joint Chiefs of Staff, National Military Strategy of the United States of America (1995).

2
Id.

3
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).

4
Id. at 7. See also, NAVAL DOCTRINE PUBLICATION 1, 28 March 1994.

5
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.

6
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.

7
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 US would follow those provisions as part of US Ocean Policy. 19 WEEKLY COMP. PRES. DOC.
877 (Mar. 10, 1983). Furthermore, on 6 October 1994, Following the US 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.

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 The fundamental reference for those operating in this environment is NWP 1-14M (previously NWP
(A)), The Commander's Handbook on the Law of Naval Operations. NWP 1-14M is thus the rough
equivalent of the Army's FM 27-10 and the Air Force's AFP 110-31. Containing detailed information on
both the Law of the Sea and the Law of Naval Warfare, it is indispensable. An annotated version of NWP
1-14M is being prepared. The annotated version of NWP 9A is still very helpful to judge advocates.

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 APPENDIX D
THE RESERVE COMPONENTS
[Note: Although the Air National Guard, the Air Force Reserve, and Navy and Marine Corps Reserve form vital parts of the
overall Reserve Component structure, as part of a TJAGSA publication, this section will emphasize only Army Guard and
Reserve Judge Advocate (JA) operations and briefly discuss Air Guard and Reserve operations.]

Introduction: Use of Army National Guard and Army Reserve units and personnel is essential to Total
Army mission accomplishment. Honorable Secretary of Defense William Perry has stated repeatedly that
Reserve Component (RC) personnel and units will be used increasingly in direct support of OCONUS-
based and - deploying Active Component (AC) units. This support (and training) not only helps fulfill RC
mission readiness requirements, but also provides OPTEMPO relief to AC units. It is extremely important
that AC and RC Judge Advocates work together to ensure mission accomplishment. As Major General
Nardotti stated in his POLICY MEMORANDUM 96-3, “to enhance this partnership, we must expand our
efforts to forge strong training and mutual support relationships among active, guard, and reserve judge
advocates. We must formalize more cross component training programs to allow all judge advocates to
draw on the wealth of talent of their counterparts. Leaders must plan mutual training activities to fully
incorporate the skills of judge advocates in all three components into our real world missions.”
Today’s Total Army requires not only increased use of RC units, but also in non-traditional roles,
such as operations other than war and in other than traditional unit configurations. Examples of these
types of operations are peacekeeping, humanitarian assistance, and civic assistance. Recent examples of
these types of missions for a Guard unit was the FY 95 deployment of a composite reserve/active infantry
battalion to the Sinai as part of the Multi-National Force and Observers and the mobilization of various units
to support Joint Endeavor and Joint Guard. This type of large OCONUS deployment for a non-traditional
mission, totally integrated with an AC unit, was not contemplated five years ago.
The National Guard (NG)
Almost all of the fifty-four National Guards have a single, full-time Active Guard and Reserve
(AGR) JA, and all have a senior State Staff Judge Advocate. Their primary mission is to advise their
respective Adjutant Generals. The State SJA is the POC for purposes of coordinating training and
preparations for natural disasters, civil disturbance, civilian assistance, and counterdrug missions within
their jurisdictions. Each of the fifty states, and Guam, Puerto Rico, Virgin Islands, and the District of
Columbia have their own distinct, independently commanded National Guards. Therefore, the roles and
missions of the judge advocates assigned to the state and territory area commands vary.
The channel of communications for the National Guard at the federal level is the National Guard
Bureau, a statutory, joint bureau within the Department of Defense. The Chief of the Bureau, a lieutenant
general, is the principal advisor on Guard matters to the Secretaries of the Army and Air Force, and to the
Army and Air Force Chiefs of Staff. The Chief Counsel of the Bureau provides legal advice and assistance
to the Chief of the Bureau, the Directors of the Army and Air National Guards, and to the full-time AGR
judge advocates in the states and territories. The Chief Counsel employs a joint staff of 24 military and
civilian attorneys in a wide variety of disciplines, including administrative law, contract and fiscal law,
international and operational law, environmental law, legislation, labor law, and litigation.
I. The Army National Guard (ARNG): Nature, Mission, and Capabilities of the ARNG and
Judge Advocate Operations.
A. General. ARNG legal personnel support both militia missions and preparation for
mobilization in federal service missions. Approximately 50% of ARNG JAs are assigned to SJA sections in
combat and support units (CS/CSS). The remaining 50% of ARNG JAs are usually assigned to the state
(STARC) or territory (TARC) headquarters.
The SJA of ARNG combat or CS/CSS units is the POC for legal training for the federal
mobilization mission. SJAs are generally interested in one or two of their legal personnel working in an AC
SJA section during a 15-day Annual Training (AT) period. As “citizen soldiers,” ARNG JAs typically
possess a broad range of experience and expertise, both military and civilian. They can therefore add a
valuable civilian perspective and background to the training experience not typically offered by the AC
attorney. Many ARNG JAs have prior AC JA experience. Others have extensive civilian legal practices
focusing on such areas as international law, government regulation, labor law, environmental law, claims,

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contracts, criminal law, and family law. All have the experience of providing general legal services to their
respective ARNG units. For CONUS-based units and training, ARNG JAs can also be used as effective
liaisons with local and state governments because of their extensive local community contacts. ARNG JAs
recognize the necessity of developing AC training opportunities for ARNG enlisted personnel. Close
ARNG/AC SJA coordination is therefore recommended in order to ensure that this type of beneficial
opportunity will be scheduled as often as possible.
B. Enhanced Brigades. Although National Guard Divisions remain viable organizations and
continue to provide multiple opportunities for Judge Advocates in their SJA sections, a new organization in
the ARNG (since 1994) is the Enhanced Brigade. (The Table of Organization and Equipment - TOE-
structure for ARNG Enhanced Brigades is based on the AC separate brigades.) There are 15 ARNG
Enhanced Brigades, organized and resourced to be quickly mobilized, trained, and deployed to fast-
evolving major regional conflicts. (MRC). There are seven heavy brigades (armor and mechanized
infantry), seven light brigades, and one armored cavalry regiment. Each Enhanced Brigade has necessary
support slices capable of quickly and efficiently plugging into divisions or corps. All 15 brigades do not
currently have a war trace to a specific AC unit, which permits flexibility in their deployment, but all have
training associations with AC corps and divisions.
Secretary of the Army, the Honorable Togo D. West, has stated that “[t]he Army National Guard
Enhanced Brigades are the principal RC ground combat maneuver forces of the United States Army. Their
primary federal peacetime function is to sustain the level of readiness necessary to serve as the Nation’s
strategic hedge against the potential of an adverse MRC in a two nearly simultaneous MRC scenario. In
this role, they are expected to reinforce, augment, and/or backfill active component units as required by the
theater commander to which they are assigned upon validation by the Secretary of the Army. The term
“enhanced” refers to increased resource and manning priorities with improved training strategies during
pre-mobilization that ensure their ability to be ready to deploy at a readiness rating of C-1 by 90 days after
call up. The brigades will be organized, equipped, and sustained to be doctrinally employable, command
and control compatible, and logistically supportable by any U.S. Army corps or division.” The Enhanced
Brigades are required to attain higher degrees of readiness, meet earlier deployment times and prepare
for more contingencies than any past commitment of the ARNG.
C. Enhanced Brigade SJA Section. The Modified TOE (MTOE) for each Enhanced
Brigade includes an SJA section under the Headquarters Company. The section includes a lieutenant
colonel SJA, and, depending on the type of brigade, one or two majors, a captain, a warrant officer
(WO2), and three legal NCOs. Because of the quicker deployment nature and potential missions of the
Enhanced Brigade, its judge advocates should receive OPLAW training, be capable of providing services in
an austere environment, and expect to work much closer with their AC unit counterparts than in the past.
D. Employment of Army Guard Legal Personnel.
1. Contingency Operations. Hundreds of National Guard JAs provided pre- and
STORM, and legal assistance during the deployment to the families of deployed Guardsmen. Governors
of several states directed the employment of ARNG (and post-mobilization legal assistance to Guardsmen
deployed to and returning from Operation DESERT ANG) JAs in their state capacity to provide legal
assistance services to resident family members of deployed military personnel, regardless of component
or branch of service. NGB-JA coordinated the recruitment of hundreds of Special Legal Assistance
Attorneys (SLAA) from the states. Most of the SLAAs were ARNG JA volunteers who agreed to provide
legal assistance to deployed Guardsmen and their families on their own time, in addition to their normal
duty.

2. Peacetime Support of the AC. The International and Operational Law Branch,
Office of the Chief Counsel, National Guard Bureau,(NGB-JAI), has coordinated the deployment of
volunteer ARNG JAs from various states to OCONUS AC units for Active Duty for Special Work (ADSW)
tours. These tours vary in length, and the attorneys perform duties ranging from administrative law and
legal assistance to operational law. These tours are currently not programmed and are dependent on
extraordinary funds. However, long-range plans envision annual rotation of JAs from Enhanced Brigades
and other early deploying units for short ADSW tours in the OCONUS units to which they would deploy in
wartime. Other ARNG JAs have deployed from time-to-time to OCONUS theaters to perform AT, ADSW
or Key Personnel Upgrade Program (KPUP) tours.

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 3. Joint Military to Military (Mil-to-Mil) Contacts and Partnership for Peace(PFP)
Programs.

(a) Mil-to-Mil. Under this program, Guard, Reserve and AC personnel assist
emerging democracies attain peace and stability through an understanding of the role of a civilian-
controlled military in a democratic society. Financed primarily by European Command (EUCOM),
Guardsmen deploy to share professional information and experiences to Eastern European and former
Soviet nations. In the Guard, personnel for the missions come primarily from those states linked to these
countries through the National Guard State Partnership Program. In 1995, ARNG attorneys deployed to
Lithuania and Albania, and recently, a Michigan JA deployed to Latvia for a month to assist that country in
developing a uniform military code of justice. There are currently several ARNG officers who serve as the
Military Liaison Team Chiefs in Eastern European countries. ARNG JAs also host foreign JAs visiting U.S.
Partnership States on “familiarization tours.” In 1996 two JA’s were sent to Belgium to provide legal
training and each state has its own on-going sister-relationship with foreign countries which involves travel
and training in those countries.
(b) PFP. A JCS-funded program under which military exercises (CONUS and
OCONUS) and professional exchanges take place between U.S., NATO, and former Warsaw Pact
countries. Hosted by their NG JA State Partnership counterparts in FY 95, attorneys and interpreters from
Kazakhstan, Latvia, and Albania came to their State Partnership states in the U.S. to observe military
courts and administrative proceedings, and to visit with state judicial and legislative personnel.

II. The Air National Guard (ANG); Nature, Mission, and Capabilities of the ANG and Judge
Advocate Operations.

The mission of the ANG is to provide air defense of the continental United States, and, as needed
to support federal national security objectives overseas. The ANG serves under state government
jurisdiction except when federalized. A brief breakdown by task clearly demonstrates the vital federal
role the ANG plays in the Total Force: it provides 100% of the fighter-interceptor force for the U.S. Air
Force, 26% of the tactical air support, 43 % of the tactical airlift, 29% of the air rescue capability, 33% of
the tactical fighters, 43% of the KC-135 air refueling capability, and 8% of the strategic airlift capability.
As recently demonstrated in DESERT STORM, DENY FLIGHT AND PROVIDE PROMISE (Bosnia-
Herzegovina), PROVIDE COMFORT II (Turkey and Northern Iraq), SOUTHERN WATCH (Middle East),
SUPPORT HOPE (Rwanda), and UPHOLD/MAINTAIN DEMOCRACY (Haiti), the ANG is indispensable in
its support to the AC worldwide.

ANG legal personnel support the state mission as well as the federal national security objectives.
Each state or territory normally has two to three ANG JAs: an ANG SJA at state headquarters, plus two
JA’s who are usually assigned to a Command Group (actually assigned to the Combat Support Group).
The ANG organizations; JA’s are assigned to operational units or headquarters.

Short of an actual contingency (e.g., wartime callup under 10 U.S.Code, sections 12301, et seq.),
ANG forces will be used only to the extent necessary to provide capabilities that are insufficient or
completely unavailable in the AC. This includes callup of individuals as well as units. ANG units which are
called up normally deploy forward with ANG leadership intact. When AC Air Force units deploy, ANG JA’s
backfill the AC positions to assist in legal assistance matters for mobilization of both active duty and ANG
personnel. Although part of the ANG unit during peacetime, because of their backfill role, JA’s are very
unlikely to be called up for actual deployment to an overseas theater with the ANG unit.

The Reserve Forces

Approximately 55% of the judge advocates (around 2,250) in the Army JAGC are found in the
United States Army Reserve (USAR). The USAR is divided into four categories, each of which contains
judge advocates. The first category is the Troop Program Units (TPU). These are the various individual
units, most of which are combat support and combat service support units, which train to mobilize as units.
The second category is the Individual Mobilization Augmentees (IMA) who are individual judge advocates
assigned to AC organizations for training and to augment their assigned organization when mobilized.

D-3
The third category is the Individual Ready Reserve (IRR) who are individual judge advocates assigned to
the USAR Personnel Center (ARPERCEN) for training and mobilization. The fourth category is the Active
Guard and Reserve (AGR) who are individual judge advocates on active duty (a career program) for the
purpose of providing full time support to the USAR.

I. USAR JAGC: Organization and Mission. See Chs. 2-3, FM 27-100, Legal Operations,
3 Sep. 1991 (under revision).

A. TPU.

1. Embedded. Judge advocates are embedded in several USAR TOE units such as
the 807th Medical Brigade, the 3rd COSCOM, the 21st TAACOM. These judge advocates (JAs) train to
mobilize with their units. In addition, JAs are found in several USAR TDA organizations such as the ten
Regional Support Commands (RSCs). In each case, the mission of the embedded judge advocates is to
perform the traditional SJA function of providing legal support to their respective command.

2. TOE Legal Units. Unique to the USAR is a new modular force structure of TOE
legal units. The 522 L series TOE fields six different types of Judge Advocate General Service
Organizations (JAGSOs).

(a) Legal Support Organization (LSO). The LSO provides operational control
and technical supervision over subordinate legal teams which provide the actual legal support services.
The LSO is modularly organized into two support sections so as to be capable of providing supervision
over split-based operations. There are 18 LSOs, 11 of which are Mobilization Support Organizations
(MSOs). The primary mission of the 11 MSOs will be to form part of the CONUS Support Base and to
provide mobilization legal support at the Mobilization Stations. The primary mission of each of the
remaining 7 LSOs will be to deploy OCONUS to provide legal support services in up to two operational or
geographically discrete areas.
(b) Legal Services Team (LST). The LST is the basic unit legal module
capable of providing all legal services to a command and its soldiers on the basis of one LST per 7,000
soldiers. Each LST is functionally divided into three sections, the command opinions section, the client
services section, and the litigation section. There are 56 LSTs, each consisting of 8 officers and 4
enlisted.
(c) Regional Trial Defense Team (RTDT). The RTDT provides operational
control, training, and Defense Teams. There are 5 RTDTs, each consisting of 2 officers and 1 enlisted.
(d) Trial Defense Team (TDT). The TDT provides defense counsel services
on the basis of one TDT per 12,000 soldiers. There are 20 TDTs, each consisting of 4 officers and 1
enlisted.
(e) Senior Military Judge Team (SMJT). The SMJT provides General and
Special Court-martial and other judicial services as necessary on the basis of one SMJT per 15,000
soldiers. There are 6 SMJTs consisting of 1 officer and 1 enlisted.
(f) Military Judge Team (MJT). The MJT provides General and Special
Courts-martial and other judicial services as necessary on the basis of one team per 15,000 unsupported
soldiers. There are 12 MJTs, each consisting of 1 officer and 1 enlisted.

B. IMA. IMA judge advocates are assigned to specific AC SJA/JA positions on the
mobilization TDA of an AC organization. They train with their AC organization during peacetime to augment
the AC SJA/JA staff upon mobilization. Some IMA judge advocates may also be Drilling IMAs (DIMAs).
These judge advocates train (“drill”) monthly in addition to the two week annual training period all other
IMAs perform. The mission of the IMA judge advocate is to provide augmentation legal services to their
AC organization when called upon. The IMA program is described in AR 140-145. The IMA has great
flexibility in timing training periods and may be utilized for additional periods during peacetime for AC
support IAW AR 135-210. It should be noted that the IMA program is currently under revision and changes
are expected. Due to budget constraints, IMA positions which not filled and utilized by AC organizations
are expected to be cut.

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 C. AGR. AGR judge advocates are USAR judge advocates on indefinite active duty status
and assigned to various AC and USAR organizations. The mission of the AGR judge advocate is to train,
recruit, administer and organize the USAR on a full time basis. They are often responsible for the day-to-
day legal affairs of the USAR legal office to which they are assigned. The AGR program is described in
AR 140-30. There are AGR judge advocate officers assigned to each Regional Support Command (RSC)
USACAPOC, ARPERCEN, TJAGSA, AND OTJAG Administrative Law Division, and each USAR General
Officer Command Direct Reporting Unit (DRU).

D. IRR (“Control Group”). IRR judge advocates are assigned to ARPERCEN to be

managed until they are either assigned to a TPU, IMA, or AGR position or are discharged. While in the IRR
a judge advocate may receive orders to report for duty for, among other reasons, training, temporary
active duty, or mobilization.

II. Utilization of USAR Judge Advocates.

A. General. Reduced strength across the board within the JAGC requires increased mutual
support between the AC and RC. RC judge advocates can perform a wide variety of legal support
missions. Due to the complexity of factors and issues involved in access to cross-component JA support,
the Guard and Reserve Affairs Division of the Office of the Judge Advocate General (GRA) provides one-
stop entry to the RC for accessing RC JA information and support. GRA is located at the Judge Advocate
General’s School of the Army in Charlottesville, Virginia. The address and telephone numbers are:

Director, Guard and Reserve Affairs

Office of the Judge Advocate General
600 Massie Road
Charlottesville, Virginia 22903-1781
(804) 972-6380
800-552-3978 extension 380
FAX (804) 972-6386

GRA provides DA level access to both the ARNG and the USAR JA communities along with direct technical
channel coordination with FORSCOM, USARC, ARPERCEN, the Continental US Armies (CONUSAs) and
PP&TO-OTJAG. GRA should be the first point of contact for access to RC JAs for information and
assistance. As with AC JAs, TJAG is responsible for the technical supervision, training and assignment of
RC JAs. TJAG exercises much of this responsibility through GRA.

B. Status. A key determination to be made is the status in which the JA(s) will perform the
support. The status to be utilized will in turn depend upon a number of factors. Space does not permit
detailed discussion of each factor or the variable combinations thereof for each situation. Some of the
factors are:

1. Mission. The support to be provided forms a starting point for identifying the
other factors. A six month mobilization back fill for Bosnia is different than a two week augmentation of a
Corps SJA office.

2. Length of Service. An extended project may dictate use of a different category of

JA than a shorter project.

3. Funding Available. Funding may become a major factor in accessing a USAR JA

or a legal team. There are many funding sources depending on the other factors and the status best
suited to the mission. For example, when a JA performs annual training (AT), funds for the At are usually
set aside long before the two week AT period. Accordingly, to the extent USAR JA support can be
arranged during the AT period, funds for that period need not be provided by the supported AC
organization. With sufficient advance planning, JAs may be able to split or fragment AT to fit the needs of
the supported AC organization. This method was used in support of Desert Storm and more recently
Bosnia at AC installations to prepare soldiers for overseas movement.

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 4. Expertise Required. A specific skill may require identification of a specific JA who
may be located in any one of the four categories. Drawing a JA from an IMA position in one command to
back fill a specific skill mission in another command will involve different procedures than a volunteer from
the IRR.

5. Reporting Date. Some JAs are available on shorter notice than others. The type
of civilian law practiced by the JA must be considered.

6. Number of Personnel. The new 522L series TOE was specifically designed to
allow greater access and flexibility to USAR JA support. Modules as small as 4 personnel can be
mobilized.

7. Geographic Location. Country and language are significant. The 7 LSOs not also
identified as MSOs are currently being aligned to world regions for training and support purposes. Of
these 7, 3 are contained in the Force Support Package (FSP) identified for response to major regional
contingencies. Depending on the mission and region, a specific LSO may already be identified to provide
at the support required.

8. Training Association. All 18 LSOs will be associated with an AC SJA office for
purposes of both training and support. These relationships should assist AC access to the USAR JAs.

III. Examples of Utilization of USAR JAs.

A. General. USAR JAs have been mobilized in support of Desert Storm, Haiti and Bosnia.
USAR JAs have also been placed on active duty in support of CONUS SJA offices for various missions.
The following is a series of actual and hypothetical examples of legal support provided:

1. Mobilization Legal Assistance. In the course of Operation DESERT STORM, AC

JAs at Fort Sill, OK, recognized that they would not be able to provide all of the mobilization legal
assistance (wills, powers of attorney, etc.) needed by AC and RC personnel deploying from Fort Sill.
th
Accordingly, the 218 JAGSO, headquartered in Bismarck, ND, was requested to help provide such
assistance at Fort Sill. Similar support was provided at other installations around the country by other
JAGSO units.
2. Procurement Law. Soon after U.S. Forces began arriving in SWA for Operation
DESERT STORM, AC JAs recognized the need for additional legal support to help with local procurement
th
activities. Accordingly, the 207 JAGSO, headquartered near Washington, DC, was mobilized and
deployed to SWA where they provided the majority of acquisition law services to U.S. Forces. In fact, the
ARCENT and 22d SUPCOM (TAA) SJA offices were principally staffed with RC JAs.

3. Hypothetical. A Corps SJA needs two company grade RC judge advocates for a
single short period—i.e., a 60 day temporary tour of active duty (TTAD). Absent mobilization by the
President, it is somewhat difficult to get individual RC soldiers—including JAs—involuntarily activated for
the performance of such duties. Even during Operation DESERT STORM, individual RC JAs were not
involuntarily activated under the 200K limitations. Congress has since granted the President some limited
flexibility to call up USAR for national emergencies short of 200K partial mobilization. However, volunteers
can be requested to fill this requirement for RC company grade JAs. Since the period of active duty is
more than two weeks, such volunteers would not be able to use their AT period (and related funds) to
provide such service. Accordingly, the first hurdle here may well be funding since the Corps may not have
budgeted funds for such RC temporary active duty. Assuming the Corps supports such a request for RC
personnel but does not have the funds, the Corps SJA might, through GRA, contact PP&TO, the
FORSCOM SJA Office (and perhaps the USARC SJA Office) to explain the need for these RC JAs, to
determine whether such temporary active duty could be funded, and to seek assistance in locating suitable
RC volunteers. TTAD is governed by AR 135-210. Note that TTAD is performed in a TDY status and the
requesting agency must be prepared to pay the cost of the soldier’s TDY. IRR or IMA JAs may be
obtained for voluntary tours of various duration, subject to funding.

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 4. Hypothetical. Augment the Military Police/Enemy Prisoner of War Structure.
Presently, the reserve EPW structure has an insufficient number of JAs to support the national and theater
prisoner of war information centers and fourteen EPW battalions in the reserve structure.
5. Hypothetical. Augment STARC and TARC Headquarters. With usually one full
time AGR and one or two other NG JAs, the STARCs and TARCs are not staffed to support military family
members within their jurisdiction. Although these Headquarters have the mission, they lack the resources
to staff casualty assistance centers to assist family support groups, and to provide individual legal
assistance to family members as well as function as the command judge advocate.
IV. What to Expect in the Future.
A. Recent Experience. The Bosnia experience offers a look at the future process for
utilization of RC JAs. The USAREUR SJA requested a number of JAs to back fill deploying AC JAs.
OTJAG PP&TO acted first to fill with other AC JAs where available. After preliminary communications
within technical channels (utilizing GRA as the clearinghouse) the 91st LSO was tapped to provide a
module of JAs to mobilize to Europe to meet the USAREUR SJA requirement. When one special skill
shortfall was identified (Serb-Croat speaking JA) within the USAR, GRA coordinated within ARNG channels
to transfer a North Carolina ARNG JA into the 91st LSO to deploy to Europe to complete fill of all
requirement. This is an example of cross-component support to meet an Army requirement for legal
support.
B. Future Access. In response to future request for USAR JA legal support, several offices
within the JAGC can be expected to cooperate to meet the requirement. With AC, USAR and ARNG all
represented within a single division of OTJAG, GRA will serve as window into the RC JA community. GRA
and PP&TO at OTJAG, the USARC SJA, FORSCOM SJA, ARPERCEN, and the CONUSA SJAs will all
coordinate to access the RC JA assets. With respect to deploying JAs in support of contingency
operations and conflicts, the USARC SJA and FORSCOM SJA can be expected to take final action on
identifying which units will be accessed while ARPERCEN and GRA can be expected to take final action on
identifying individuals to e accessed. With respect to other support requirement the SJAs of the various
AC organizations are encouraged to contact GRA and the Regional Support Command (RSC) SJAs.
ARMY NATIONAL GUARD- STATUS
1. Key Status:
a. 10 USC 101(c)(2)- Army National Guard (ARNG) defined (i.e. the state militia).
b. 10 USC 101(c)(3)- Army National Guard of the United States (ARNGUS) defined.(i.e. a
reserve component of the Army).
c. 10 USC 101(d) (1)-Active duty defined (i.e. duty under the authority of Title 10, USC;
specifically excludes full-time National Guard duty (FTNGD).
d. 10 USC 101(d)(5)- FTNGD defined (i.e. duty under the authority of Title 32, USC).
e. 10 USC 10103 - ARNGUS and Air National Guard of the United States (ANGUS) are
primary mobilization force, other reserve components used as necessary to create balanced force.
f. 10 USC 3062(c)- Army defined (does not include ARNG; reference to ARNG in service of
the United States means call pursuant to Chapter 15, Title 10 or 10 USC 12406, to repel invasion, put
down insurrection, etc.).
g. 10 USC 10107- members of ARNGUS, when not federalized, are administered, armed,
equipped, and trained in their ARNG (i.e. state militia) status.
h. 10 USC 12602- for purposes of benefits FTNGD performed by members of the ARNGUS
shall be deemed to be active duty in Federal service as a Reserve of the Army. Exceptions:
(1) Soldiers and Sailors Civil Relief Act (SSCRA)-reason: not considered a benefit but
a protection.
(2) VA Benefits- VA treats FTNGD as active duty for training (ADT), reason: unwilling
to assume additional costs.
(3) Federal Civil Service Retirement- FTNGD, not performed while a federal civilian
employee, not creditable.

2. Command and Control Status’s for ARNG

a. State Active Duty (SAD)- state command and control, state-funded.

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 b. Title 32- state command and control, federally-funded.
c. Title 10- federal command and control, federally-funded.
d. NOTE: ARNG soldiers performing SAD or duty under Title 32 are not subject to the
Uniform Code of Military Justice (UCMJ), but are subject to disciplinary provisions of the Sate Military
Code.

3. Duty Status’s for ARNG

a. Initial Active Duty for Training (IADT)- Title 10 (same as USAR).
b. Annual Training (AT)- Title 32 (USAR is Title 10)
c. Training other than IADT, IDT and AT
(1) FTNGD for Training (FTNGDT)-Title 32 (other than IADT, ARNG soldiers attend
Active Army schools in Title 32 status).
(2) Active Duty for Training (ADT)-Title 10 (when ARNG soldiers train overseas they
must be in Title 10 status, thus they are performing ADT in lieu of their AT or in addition to their AT).
d. Special Work
(1) FTNGD for Special Work (FTNGDSW)- Title 32 (to support the ARNG in the
states).
(2) Active Duty for Special Work (ADSW)- Title 10 (to support the ARNG at federal
headquarters; see AR 135-200, Chapter 6).
(3) Temporary Tour of Active Duty (TTAD)- Title 10 (to support the Active Army; must
be funded by Active Army, as opposed to ARNG, appropriations; see AR 135-210, Chapter 3).
e. Active Guard/Reserve (AGR)- to organize, administer, recruit, instruct, and train the
reserve components.
(1) Title 32 AGR- to support the ARNG in the states.
(2) Title 10 AGR- to support the ARNG at federal headquarters (see 10 USC 12402
and 10 USC 10211.
(3) NOTE: Unlike Special Work, there is not AGR status to support the Active Army.
Such use could constitute a fiscal law violation by using funds for a purpose other than the one for which
they were appropriated.
f. Extended Active Duty (EAD)- Title 10 (See AR 135-210, Chapter 2; soldier is accessed
into end strength of the Active Army; paid by Active Army appropriations; officers go on Active Duty List
(ADL) for promotion).
g. NOTE on end strength accountability under 10 USC 115. Provides two end strengths,
one for Active Army and one for reserve component (RC) personnel on active duty or FTNGD and paid
from RC appropriations. Soldiers in .paragraphs. e(1) (if over 180 days), e(2) (if over 180 days), f(1), and
f(2) above count against the latter. Soldiers in categories e(3) (if over 180 days) and g above, count
against the former.. For more information on end strength accountability see AR 135-200, paragraphs 1-6
and 1-7.

4. Categories of ARNG Personnel in the States:

a. Traditional, sometimes referred to as M-Day, Guardsmen. Required to perform 48 IDT
drills and 15 days of AT per year.
b. Title 32 AGR’s (full-time military duty).
c. Technicians
(1) Military Technicians- federal civilian employees, employed under 32 USC 709, for
whom membership in the ARNG (i.e. as a traditional Guardsman) is a condition of employment.
(2) Civilian Technicians- federal civilian employees, employed under 32 USC 709, for
whom membership in the ARNG is not a condition of employment.
(3) NOTE: Technicians are unique in that 32 USC 709 places them exclusively under
the control of a state official, the Adjutant General, who hires them, fires them, and administers them.
d. State civilian employees hired pursuant to Federal-State Cooperative Funding Agreements
(sometimes referred to, confusingly, as State technicians). These personnel are authorized to use
vehicles, property and equipment provided to the ARNG by the federal government to accomplish their
duties under the cooperative agreement. Although not required, they often are also members of the
ARNG.
e. NOTE: ARNG soldiers performing duty in Title 32 status and technicians employed under
32 USC 709 are covered under the Federal Tort Claims Act.

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 APPENDIX E
US GOVERNMENT, UN, AND OTHER INTERNATIONAL ORGANIZATIONS1

US Forces conduct operations directed by the NCA in close cooperation with or under the supervision of
other agencies, the UN, and NGOs. This appendix provides information about possible "players" in
operations, and includes descriptions of those entities and their functions and roles. It is not an exhaustive
treatment of all possibilities.

US GOVERNMENT AGENCIES

Units may work with any number of United States Government agencies, to include the NCA, the National
Security Council (NSC), other DOD agencies, DOS, AID, the Aid Office for Foreign Disaster Assistance
(AOFDA), the Federal Emergency Management Agency (FEMA), the Department of Transportation, the
Coast Guard, the Department of Agriculture (USDA), the Department of Justice, the Office of International
Affairs, the Public Health Service (PHS), and the Immigration and Naturalization Service (INS).

NATIONAL COMMAND AUTHORITIES

The NCA consists of the President and the Secretary of Defense (SECDEF) together or their duly
deputized alternates or successors. Both movement of troops and execution of military action must be
directed by the NCA, no one else in the chain of command has such authority. The NCA directs armed
forces involvement in operations. Orders given to the US forces commander must include the appropriate
NCA mandate (instructions) for the operation.

NATIONAL SECURITY COUNCIL

The NSC develops policy guidance for employment of military assets and conduct of operations. The NSC
provides a representative to any established interagency oversight committee when requested by the
SECDEF.

DEPARTMENT OF DEFENSE

The Office of the SECDEF has several assistants who may be involved in the conduct of peace operations.

Assistant Secretary of Defense for Strategy and Requirements

The Assistant Secretary for Strategy and Requirements (ASD[S&R]) is the principal staff assistant
and advisor to the Under Secretary of Defense for Policy (USD[P]) and the SECDEF on DOD policy and
planning for US participation in international PK and PE operations. In these capacities, the ASD(S&R)
shall develop, coordinate, and oversee the implementation of policy and plans for matters related to the
participation of US armed forces and other international peace-keeping or peace enforcement activities.
This includes the development of policy related to creating, identifying, training, exercising, and committing
military forces for such purposes. A Deputy Assistant Secretary of Defense for Peacekeeping and Peace
Enforcement (DASD[PK/PE]) serves under the ASD(S&R).

Assistant Secretary of Defense for Special Operations

and Low-Intensity Conflict

The Assistant Secretary of Defense for Special Operations and Low-Intensity Conflict (ASD[so/lic]) is the
principal staff assistant and civilian advisor to the Secretary of Defense and the USD(P) for policy-
planning-related special operations and low-intensity conflict activities within DOD. Many peace operations
are low-intensity conflict activities within DOD. Many peace operations are low-intensity conflicts or
have the characteristics of low-intensity conflicts. SOF, especially CA, PSYOP, and SF units,

1
Reprinted from DEP’T OF ARMY, FIELD MANUAL 100-23, PEACE OPERATIONS (30 December 1994).

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have unique capabilities and responsibilities for peace operations, ASD(SO/LIC), among other
responsibilities--

Provides policy guidance and oversees planning, programming, resourcing, and execution of SO
and LIC activities.

Provides policy concerning PYSOP forces, plans, and programs.

Oversees integrated development and refinement of doctrine, strategies, and processes for SO
and LIC, to include supporting studies and analyses.

Reviews and evaluates policies, processes, and programs of DOD components to plan, resource,
prepare forces, and execute SO and LIC operations and initiate and coordinate action to enhance
readiness.

Supervises overall preparation and justification of program recommendations and budget

proposals for SO activities in the Five Year Defense Plan (FYDP).

Advises the Under Secretary of Defense (Acquisition) (USD[A]) on acquisition priorities and
requirements for SO and LIC-related material and equipment, to include participation in
appropriate boards and committees.

Serves as principal staff assistant and advisor to the USD(P) and SECDEF for--

- DOD support to the President's counter-drug strategy.

- DOD humanitarian assistance programs and other humanitarian issues, including refugees and
laws of war.

- US international information programs.

Defense Security Assistance Agency

The Defense Security Assistance Agency (DSAA) directs, administers, and supervises the execution of
security assistance programs. This involves providing guidance to military services, unified commands, and
in-country security assistance officers in their efforts to assist foreign governments obtain US equipment,
training, and other defense-related services authorized by the Foreign Assistance Act, as amended, and
the Arms Export Control Act.

DEPARTMENT OF STATE

The Department of State is responsible for the formulation and implementation of US foreign policy.

Authority and Responsibilities

In a given country, DOS authority is delegated to one of several principal staff assistants. The Secretary
of State (SECSTATE) provides a senior DOS representative to any interagency or interdepartmental HA
oversight committee, as requested by the SECDEF. The DOS may provide primary policy guidance in the
following areas:

Matters having an impact on US relations with other countries.

The extent to which commanders interfere in the government of a particular country.

The level at which the economy of a country is maintained.

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 Matters involving informational programs, supporting psychological aspects, and attitudes of the
indigenous population.

The level of subsistence for civilians in a country in which US forces are stationed or employed and
by whom such subsistence in part or in whole must be provided.

Plans or procedures for the return of civil government functions to civilian control.

Efficiency and costs of programs undertaken to gain the understanding, acceptance, confidence,
and support of civil populations.

Embassy or consulate emergency action plans (EAPS) for the city or area under their cognizance.
These plans and photographs could be beneficial to the forces involved in missions. The
information they provide includes evacuation sites, landing zones (LZs), ports, and beaches; the
number of evacuees (if required); assembly areas; command posts.

Acts of terrorism. If the host nation is unable to adequately protect itself from acts of terrorism,
the DOS can provide support through its antiterrorism assistance (ATA) program to teach host
nation officials government and law enforcement. The latter should include how to maintain the
internal security of nation. In particular, Federal Aviation Administration instruction on airport
procedures and security could be included.

Important State Department Embassy Positions

JAs should be familiar with duties of the following State Department officials and organizations normally
found at US embassies.

Ambassador/Chief of Mission. The ambassador, or chief of mission, is the senior US official, military or
civilian, at the embassy. The ambassador usually has overall direction, coordination, and supervision of US
Government activities and personnel in a host country. This authority does not extend to personnel in other
missions or those assigned to either an international agency or to a combatant commander. A crisis may
arise where the US has no diplomatic mission. In such a situation, the President may send a
representative with instructions that vary from the standard authorities and responsibilities of a chief of
mission.

During cross-border emergencies, the US ambassador to the host nation normally exercises command and
control in the interagency environment. However, this control may be complicated when cross-border
emergencies such as civilians crossing international borders or attacks against refugee camps take place.
Therefore, interagency working groups should establish procedures on cross-border situations.

Deputy Chief of Mission. The deputy chief of mission (DCM) is the senior diplomatic official in an embassy
below the rank of ambassador. He has the diplomatic title of minister, minister-counselor, or counselor
(depending upon the size of the mission) and is nearly always a career Foreign Service officer (FSO). The
DCM usually chairs the country team meetings and coordinates the embassy staff.

Chief of Military Mission. The chief of military mission is the senior military person at the embassy. He
maintains liaison with the host nation's military forces. He is authorized by law to perform certain military
functions with host country military barred to others. He is cognizant of the advance party forward
command element (FCE).

Chief of Station. The chief of station is the person responsible for gathering HUMINT and signal
intelligence (SIGINT) and informing the ambassador.

Defense Attache Officer. The defense attache officer (DAO) is the military person attached to the
embassy in a diplomatic status representing DOD. This officer can facilitate access to the daily embassy

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situation report (SITREP) and other written intelligence. All military personnel, even those not assigned to
the embassy or under direct control, of the ambassador, must coordinate their activities through the DAO.

Security Assistance Officer. The security assistance officer is the person assigned to carry out security
assistance management functions, primarily, logistics management, fiscal management, and contract
administration of country security assistance programs.

Administration Officer. The administration officer is responsible for various activities at the embassy
compound, which may include providing security at small posts; running the commissary, motor pool, and
maintenance activities; and handling monetary aspects of embassy business, including foreign service
national (FSN) payroll, cash collection, and budget. The AO is the third in command in the embassy
hierarchy. In a small post with no security officer assigned, the AO assumes the functions of the security
officer.

Political Officer. A political officer is an FSO who reports on political developments, negotiates with
governments, and represents views and policies of the U.S. Government to his contacts. The political
officer maintains regular contact with host government officials, political and labor leaders, and other
influential citizens of a country, as well as third country diplomats. The political officer is a major
contributor to the overall intelligence picture.

Economic Officer. The economic officer analyzes, reports on, and advises superiors and DOS personnel
on economic matters in the host country. Economic officers also negotiate with the host government on
trade and financial issues. They may also work in close contact with relief organizations.

Consular Officer. The main function of the consular officer is to screen, process, and grant US passports
and visas. Other duties include attending to the welfare of US citizens and performing administrative tasks
such as maintaining a count of US nationals within the host country. The consular officer provides
appropriate personnel to screen documents of all potential evacuees during noncombatant evacuation
operations (NEO) and provides any necessary instructions that personnel may need to effectively staff
processing stations.

Medical Officer. The medical officer is qualified for general practice and responds to and set up triage,
trauma, and mass casualty operations. The medical officer also advises on indigenous diseases vectors
and proper prophylaxis necessary for forces introduced into the country.

Public Affairs Officer. The USIS (US Information Service (USIS) overseas) representative of the country
team normally serves as the public affairs officer (PAO) to provide public affairs advice to the ambassador
and coordinate information efforts with other agencies.

Regional Security Officer. The regional security officer (RSO) is a security officer responsible for the
security functions of US embassies and consulates in a given country or group of adjacent countries.

Post Security Officer. The post security officer (PSO) has general security duties at a specific embassy
(or consulate). The PSO is a special staff officer under the control of the AO.

Special Security Force. The special security force consists of DOS employees who respond to crises in
foreign countries. They work for the RSO and provide additional bodyguard security for the ambassador,
the DCM, and others.

General Services Officer. The general services officer performs many of the same functions as a G4 or
S4. He is normally responsible for buildings, grounds, construction, vehicles, and maintenance.

Marine Security Guard Detachment. The non-commissioned officer in charge (NCOIC) of the Marine
Security Guard (MSG) Detachment is normally a member of the EAC and is responsible to the PSO for
internal security, protection of classified material, and American lives. An MSG detachment normally has

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5 to 35 personnel assigned. The detachment is not available for duty with incoming forces, except with the
express consent of the ambassador.

Country Team. The country team consists of the ranking representatives of embassy sections and other
US Government agencies operating within a country. Chaired by the ambassador or the DCM, the country
team meets regularly to advise the ambassador on US matters and to review current developments in the
country. Included in the country team are the ---

Ambassador.
DCM.
Chief of political section.
Political and military affairs officers.
Consular officer.
Administrative officer.
Economics officer.
USIS representatives.
DEA, AID, and Peace Corps representatives.
CIA, DAO, and military assistance group (MAG).
Security assistance officer.

The country team facilitates interagency action on recommendations from the field and implements
effective execution of US programs and policies.

UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT

USAID is an agency under the policy direction of the DOS that coordinates US foreign assistance efforts.
In a peace support operation, armed forces work closely with USAID staff. USAID emphasizes --

Stimulation of market economies and investment by US companies in developing nations.

Improvement of schools, colleges, training organizations, supportive government

ministries, and other institutions to support economic growth.

Policy reform to advance development.

Transfer of technology to help countries produce their own resources.

Foreign economic assistance provided by USAID is normally in the form of development assistance loans
and grants to improve the quality of life of the poorest people in less developed countries. It also includes
the Economic Support Fund, part of the Security Assistance Program. The SECSTATE and the USAID
administrator make policy decisions concerning the Economic Support Fund Program. The fund includes
balance of payment support and financing of infrastructure and other capital projects. Food is
administered in close cooperation with the USDA.

UNITED STATES AID OFFICE FOR FOREIGN DISASTER ASSISTANCE

AOFDA is the federal agency responsible for providing prompt nonmilitary assistance to alleviate loss of
life and suffering of foreign disaster victims. AOFDA may request DOD assistance during HA operations.
Coordination and determination of required forces is normally accomplished through the Assistant
Secretary of Defense for International Security Affairs (ASD[IS]) and the JCS.

UNITED STATES INFORMATION AGENCY

The USIA (US Information Service [USIS] overseas) helps to achieve US foreign policy objectives by
influencing public attitudes overseas. The agency advises the President and US departments outside
CONUS on the possible impact of policy, programs, and official statements on foreign opinion. USIA

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monitors the impact of peace support operations on local attitudes and aids peace operation forces by
gaining support for US policy objectives and to counter hostile attempts to distort and frustrate US
programs, USIA conducts a wide range of information activities.

FEDERAL EMERGENCY MANAGEMENT AGENCY

FEMA coordinates federal, state, and local resources on issues of national security, emergency
preparedness, civil defense, continuity of government and technological disasters within the US, its
territories, and possessions. FEMA state and local governments to save lives and protect property, public
health, and safety. Peace operation forces may facilitate FEMA-DOD planning and coordination of
assessments consistent with their mission and ease suffering, consistent with established procedures and
national defense priorities.

DEPARTMENT OF TRANSPORTATION

DOT has technical capabilities and expertise in public transportation that may be available upon request to
assist specific HA operations.

The primary organization with which peace operation forces may work with is the Coast Guard.

The Coast Guard (USCG) is responsible for federal maritime law enforcement and post security in
peacetime and is a military service under the Department of the Navy in wartime. The USCG has expertise
in areas of shipping, commerce, marine life industry, and conservation. USCG international training efforts
provide a mechanism for sharing its expertise abroad; such expertise can be made available for peace
support operations, if needed. Additionally, results of DOD and DOT projects related to peace support
missions are available upon request.

DEPARTMENT OF JUSTICE

The Department of Justice agencies with which HA forces may come into contact include DEA and
Community Relations Service (CRS).

Drug Enforcement Agency

DEA coordinates DOD peace support operations. DEA programs and projects can be developed for
specific countries and regions. The DEA can --

Assist in providing legal, self-sustaining, income-earned, alternatives to underdeveloped,

agriculturally based nations.

Improve international exchange of information about successful drug prevention and

education programs.

Community Relations Service

CRS is under the general authority of the attorney general. CRS provides on-site resolution assistance
through a field staff of mediators and conciliators. CRS not only aids in resolving difficulties as they erupt
but also seeks to assist and support communities in developing mechanisms to address future problems.

Office of International Affairs

The Office of International Affairs coordinates and supports Department of Justice international efforts and
supports the DOS during international treaty negotiations.

PUBLIC HEALTH SERVICE

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The promotes the protection and advancement of a nation's physical and mental health. Peace support
forces are most likely to work with the PHS when bringing migrants or refugees into the US or US
territories. PHS ensures that no health threat is posed by such immigrations.

IMMIGRATION AND NATURALIZATION SERVICE

The INS provides information and service to the general public while enforcing immigration control. The
INS --

Facilitates the entry of persons legally admissible as visitors or as immigrants of the US.

Grants benefits under the Immigration and Nationality Act, including assistance to those
seeking permanent resident status or naturalization.

Prevents unlawful entry to the U.S.

Apprehends and removes aliens who enter or remain illegally in the US or whose stay is
not in the best interests of this nation.

UNITED NATIONS ORGANIZATIONS

UN organizations primarily concerned with peace operations include the High Commissioner for Refugees,
the Disaster Management Team (UN-DMT), and the Department of Humanitarian Affairs (UNDHA).

UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES

The UNHCR has a major role in coordinating aid to refugees, returnees, and displaced persons. Except in
special circumstances, in material assistance activities are conducted through national or local authorities
of the country concerned, other organizations of the UN system, NGOs, or private technical agencies.

Coordination with the INHCR is critical for any humanitarian relief effort. Failure to coordinate with UNHCR
before and during the operation, or failure to meet UNHCR standards, may preclude the UNHCR from
accepting transfer of equipment, supplies, and facilities, as the military disengages. To preclude this, a
working relationship should be established with UNHCR immediately upon notification of a mission with
UNHCR. A copy of the UNHCR text that outlines specifications for refugee camp construction should be
available.

UNITED NATIONS DEPARTMENT OF HUMANITARIAN AFFAIRS

UNDHA is the focal point for disaster management in the UN system. It mobilizes and coordinates
international disaster relief, promotes disaster mitigation (through the provision of advisory services and
technical assistance), and promotes awareness, information exchange, and the transfer of knowledge on
disaster-related matters.

UNDHA is responsible for maintaining contact with disaster management entities and emergency services
worldwide and is able to mobilize specialized resources. The appointed UNDHA resident coordinator has a
crucial role in providing leadership to the UN team at country level. He also coordinates locally represented
PVOs and NGOs as required. The resident coordinator convenes the UN-DMT at country level, seeking
unit of effort among all the various PVOs, NGOs, and agencies. The following UN programs can be
expected in the AO. They help form the UN-DMT when the UN system has been mobilized to assist in the
emergency.

United Nations Development Program

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The UN Development Program (UNDP) promotes the incorporation of disaster mitigation in development
planning and funds technical assistance for all aspects of disaster management. Work is long range. The
UNDP senior member may be appointed as a regional coordinator or may also serve as the UNDHA in-
country coordinator. UNDP also provides administrative assistance support to the resident coordinator and
to the UN-DMT.

World Food Program

The World Food Program (WFP) is an operational, relief-oriented organization. It provides targeted food
aid and supports rehabilitation, reconstruction, and risk-reducing development programs. Targeted food
aid is special substinence aligned to a special segment of the population. This organization mobilizes and
coordinates the delivery of complementary emergency and program food aid from bilateral and other
sources.

United Nations Childrens' Fund

The United Nations Childrens' Fund (UNICEF) is a relief-oriented organization. It attends to the well-being
of children and women, especially child health and nutrition. The activities of this organization may include
social programs, child feed (in collaboration with WFP), water supplies, sanitation and direct health
intervention (in coordination with the World Health Organization [WHO]. UNICEF provides related
management and logistical support.

World Health Organization

WHO is an organization involved more in long range programs. It provides advice and assistance in all
aspects of preventive and curative health care. This assistance includes the preparedness of health
services for rapid response to disasters.

Food and Agriculture Organization of the United Nations

The Food and Agriculture Organization (FAO) is an organization also involved in long-range programs. It
provides technical advice in reducing vulnerability and helps in the rehabilitation of agriculture, livestock, and
fisheries. The organization emphasizes local food production. It also monitors food production, exports,
and imports, and forecasts any requirements for exceptional food assistance.

OTHER INTERNATIONAL ORGANIZATIONS

Other international organizations include the American Council for Voluntary International Action and PVOs
and NGOs.

AMERICAN COUNCIL FOR VOLUNTARY INTERNATIONAL ACTION (INTERACTION)

The American Council for Voluntary International Action is a broadly based coalition of 120 American PVOs
that work in international development, refugee assistance, public policy, and education of Americans in
third world nations. Since 1984, it has played a significant role in disaster preparedness and response to
disasters. It exists to complement and enhance the effectiveness of its member organizations and the
PVO community as a whole.

A grant from AOFDA has helped this organization establish a professional forum for cooperation, joint
planning, and exchange of information when disaster occurs. However, it is not likely that interaction will
occur within the country in need of assistance. The work of the council is executed in the US and is geared
to maintain an effective liaison with AOFDA. It acts as coordinator at the staff level in meeting
requirements identified by its members operating within the country in need.

PRIVATE VOLUNTARY AND NONGOVERNMENT ORGANIZATIONS

E-8
The list of PVOs and NGOs that may be found in an AO could be very large. Approximately 350 agencies
capable of conducting some form of humanitarian relief operation are registered with the USAID. Also,
many foreign-based organizations are not required to register in the US. USAID publishes a yearly report,
titled Voluntary Foreign Aid Programs, that describes the aims and objectives of the registered
organization. It should be part of the combatant commander's library. The following humanitarian PVOs
and humanitarian relief organizations (HROs) may be found in an AO.

American Friends of Action Internationale Contre La Faim

American Funds of Internationale Contre Le Faim (AIFC) promotes development efforts and provides
emergency assistance in African, Asia, and the Caribbean. It focuses on primary health care, potable
water, environmental sanitation, and agriculture-based income generation. The most basic commitment is
to enhance local capacities at both the community and central levels.

Catholic Relief Services

Catholic Relief Services operates relief, welfare and self-help programs in 74 countries to assist refugees,
war victims, and other needy people. CRS emphasizes the distribution of food and clothing and the
provision of primary health care. Their capability to provide technical assistance and social services has
steadily increased in recent years.

Cooperative for American Relief Everywhere, Incorporated

Cooperative for American Relief Everywhere, Inc. (CARE) conducts relief and development programs in
over 40 countries in Asia, Africa, Latin American, and the Caribbean. Programs are carried out under
three-way partnership contracts among CARE, private or national government agencies, and local
communities in the areas of health, nutrition, acquired immune deficiency syndrome (AIDS), population
management, natural resources management, agriculture, small economic activities, and emergency
assistance. CARE provides technical assistance, training, food, other material resources, and
management in combinations appropriate to local needs and priorities. Their particular strength is in food
distribution, emergency transport and general logistics.

Doctors Without Borders/

Medicines San Frontiers

Medicines Sans Frontiers (MSF) provides medical assistance to victims of disasters, accidents, and war.
The US organization is closely associated with its counterparts in Belgium, Holland, Spain, and France.
Medical relief teams depart on over 700 yearly missions to areas of conflict, refugee camps, national
disaster sites, and areas lacking adequate health care facilities. Their particular areas of expertise are
emergency medicine, vaccinations, and basic hygiene services.

The International Medical Corps

The International Medical Corps (IMC) provides health care and establishes health training programs in
developing countries and distressed areas worldwide. They specialize in areas where few other relief
organizations operate. IMCs goal is to promote self-sufficiency through health education and training. Its
particular areas of expertise are immunizations and primary health care.

International Rescue Committee

The International Rescue Committee (IRC) assists refugees and internally displaced victims of war and civil
strife. Services range from emergency relief and assistance programs to refugee resettlement in the US.
IRC monitors human service delivery and refugee processing for US resettlement. IRC can provide
emergency medical support, public health, and small-scale water and sanitation capabilities.

Irish Concern

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Irish Concern (IC) is one of the foreign NGOs that receives funding from USAID and AOFDA. Its primary
area of expertise is supplementary and therapeutic feeding and sanitation.

Lutheran World Relief, Incorporated

Lutheran World Relief, Inc. (LWR) provides financial, material, and personnel support, usually through
counterpart church-related agencies, in the areas of disaster relief, refugee assistance, and social and
economic development. LWR is also competent in the provision of health care.

Save the Children Federation

Save the Children Federation-UK (SCF-UK) programs are guided by a set of principles that include
identifying project goals and implementing projects, transferring necessary skills, encouraging self-help,
and using available resources. This organization is more relief-oriented than its US counterpart. It
concentrates on supplementary feeding, seeds, and tools, and general infrastructure.

World Vision Relief and Development, Incorporated

World Vision Relief and Development (WVRD), Inc., or Vision, provides cash, gifts in-kind, services in-kind,
and technical resources for large-scale relief and rehabilitation and development projects in over 90
countries throughout the world. Development programs included child survival, vitamin A, prosthetics, and
handicap rehabilitation, child development, and AIDS prevention and education.

INTERNATIONAL RED CROSS MOVEMENT

The International Red Cross and Red Crescent Movement' is formed by the International Committee of the
Red Cross, the International Federation of Red Cross and Red Crescent Societies. The statutes of the
international Red Cross and Red Crescent Movement give the movement other tasks in situations not
covered by the Geneva Conventions.

International Committee of the Red Cross

The International Committee of the Red Cross (ICRC) works for the faithful application of the provisions of
international humanitarian law that applies in armed conflicts and undertakes the tasks incumbent upon it
under this law. ICRC is an independent organization based in Geneva. It derives its mandate from the
Geneva Conventions of 1949 and the additional protocols of 1977. Although at times it may get involved in
strictly humanitarian operations, its mandate is to function only during armed conflict.

ICRC neutrality is a vital aspect of its involvement in any relief operations. The ICRC protects it neutrality
in terms of reality and perception because it operates on all sides of a dispute to protect victims of armed
conflict, to include internal disturbances and tension. ICRC neutrality is a key consideration for military
planners and operators.

International Federation of Red Cross and Red Crescent Societies

The member organizations are the Red Cross and Red Crescent Societies that normally operate within the
borders of their own country. Their mandate is to provide humanitarian relief during disasters. Red Cross
organizations may provide assistance to other federation members through their international alliance
provisions. The basic considerations for planners is to remember that these organizations also go the
great length to preserve their neutrality.

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 APPENDIX F
DEALING WITH THE PRESS (PAO GUIDANCE)

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 credentialed 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.
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 1
through the PAO, as well as notify, and get approval from, your boss
before talking to the press. 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.

1
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."

F-1
 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 news--as opposed to "reporting"
the news--results 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 senior uniformed leader in the Army, you are responsible for
the management of Defense dollars and, more importantly, of American youth. Americans pay for the
Army and send their sons and daughters to fill its ranks. They "own" the Army 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.
- 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
they're up-to-date. Even if you're 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?)
- Don't memorize a statement! (You'll look stilted/pompous).
- Question your own position. Have your PAO or other staff experts play devil's 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 skinned--it 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 agency--and be able to
discuss them in detail any time." Stay current--have your staff keep you up-to-date. Practice answering a
question about a bad news subject and transition to a good news subject.

F-2
 Specific suggestions if you're going on the air:

- Know the format and theme of the show. Know who will be in the audience--do 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 you'd like to discuss. Ask
them what they'll be covering.

You're 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. There's 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 that's where you will be seen or heard--on the television set in
someone's living room or on a car radio. If you've prepared well, all you will have to do is take advantage
of a few techniques which 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, you're representing the
entire Army.)
- Ask for makeup to help control perspiration and to avoid glare from the lights. (If you have a heavy
beard, shave before you go).
- Don't 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 you're 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 won't outshine your shoes.)
- Keep jewelry simple. (That sparkling ring may look terrific at a dinner party, but on television it's 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. (Don't lean into the microphone and don't 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. Don't 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 don't smile at serious matters or out of discomfort. Remember to
keep an open face.
- Don't adopt the questioner's attitude, even on hostile questions. (Remember, the viewer/listener at
home may be on your side.)

Don't distract your home audience. (Don't pull up your socks, fiddle with your ring, or look at your
watch hoping you've almost finished).

F-3
- 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 won't 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
can' t see your eyes, they may not trust you!)
- Keep your hands off the mike. Ignore the mike and volume--that's 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, don't sit between two questioners. (It's not an inquisition, and your shifting head will make
you feel and look guilty.)
- Be yourself! Concentrate on how to get ideas across--not just words.

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 Army 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 don't just give a "yes" or "no." If you have answered the
question, stop talking. Just because the reporter leaves the mike up doesn't mean you have to talk--
that's 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.
- Don't be curt (even in response to the dumbest question).
- Don't restate the question in total or begin with gratuitous remarks such as, "I'm 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 don't 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 you're not sure of the facts, say so in you response and promise to get them. (Then be sure to
follow up).
- If you don't know the answer or can't discuss it for any reason, say so. If it's classified, don't get into
a verbal fencing match; say it's classified. Never give a "no comment" response.
- Discuss only those activities and policies within the purview of your command or area of responsibility.
Don't discuss hypothetical situations. Don't speculate.
- Don't be defensive-take the opportunity and use it to your benefit.
- Don't repeat a reporter's terminology or accept his "facts and figures" as truth unless you know
they're accurate. Don't let reporters put words in your mouth or ideas in the minds of the audience.
- If it's 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 don't know.
- Always assume the tape is rolling and the microphone is on! (Even during breaks, commercials, etc.).

F-4
- If you're confronted with a news conference or a multitude of reporters on a noisy street, don't 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 It's All Over

- Don't demand to see the show or article in advance publication. You can ask, but they aren't 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 you'd 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 Army story.

Public Speaking (Or--Do I really have to accept that speaking engagement?)

Speaking engagements are one of the best methods to get your story across to a group of
people. Why? Because you're physically with them and you can make on-the-spot adjustments based on
feedback. Also, you have a better idea of who your audience is. They are a group because of some
common interest, whether it be their children (e.g., PTA) or business (e.g., the local Chamber of
Commerce). Your PAO will be able to give you a good idea of their interests in advance.

Manuscripts, which--depending upon the subject--may be a good idea, tend to cause strange
things to happen to the psyche. Manuscripts have a tendency to make you formal, authoritative, even
didactic or pedantic. Resist! How often do you become authoritative or pedantic to your friends over
lunch? Remember, a lot of the people in the audience may be on your side. Don't alienate your friends.
Keep these points in mind:

- Care about your talk and the audience. (If you don't care, neither will they!)
- Repetition is verbal underlining.
- Concentrate on your ideas and audience.
- Be in control. Know the key points but don't try to memorize them.
- Have confidence. You were invited because you are the expert and they want you to share some
knowledge with them.
- Relax. Be comfortable. Enjoy the opportunity.
- Don't talk at your audience, but with them.
- Don't look down at your manuscript at the ends of sentences or at key points. Eye contact is
essential to making a strong point.
- Make use of pauses. You may think you're slow but your audience won't. Pauses will give them time
to reflect on what you're saying.
- End your speech on a high note. Saying "Thank you" is not necessary.
Tips for your speechwriters:
- Triple space the script. Use CAPS throughout.
- Underline key points.
- Leave a wide margin on the left-hand side. This will not only give you room to write last-minute
thoughts or ideas, but will keep your eyes from scanning across the whole page for the sentence
(your eye can take in 7 to 10 words at one glance).
- Leave a large margin at the bottom of the script so your eyes do not drop too low from the audience.

F-5
- Don't carry over a sentence to the next page. (This allows time to pause while you change pages.)
- Avoid jargon and acronyms. The audience won't understand.
- Be conversational. Use clear, simple and concise language.

A Media Survival Guide

Rear Admiral Brent Baker, the Navy's Chief of Information, offers nine recommendations for getting
information out to the media accurately and without compromising security:
1.Generally, it is in the institution's 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 media's 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."
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. Don't 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.
There's 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 you've
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, you'll do fine. Remember,
we're talking about our organization and our soldiers and we have a terrific story to tell. Let's tell it.

As a quick recap, remember these points:

- Prepare--don't "wing it."
- Conversational--treat the mike and the interviewer as friends.
- Concentrate--forget yourself and concentrate on the questions and on your key ideas.
- Control--know the key points you want to make, and answer questions on your own terms, in your
own way. Use the "five and five" rule.
- Confidence--you're the expert and you know what you're doing.
- Comfortable--relax and enjoy it. Forget about your hands and the mike and camera, and be natural.
- Concise--get 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 don't, neither will
anyone else.
- Relax. Be Honest. Be Sincere.
- Keep an open face.

F-6
 APPENDIX G
PROFESSIONAL RESPONSIBILITY
The practice of operational law presents unique ethical challenges. Still, the Rules contained in
DEP’T OF ARMY, REGULATION 27-26, RULES OF PROFESSIONAL CONDUCT FOR LAWYERS (1 MAY 1992)
[hereinafter AR 27-26] apply fully to the operational law attorney. Judge Advocates (JAs) who have
become part of their units, and key members of the commander's personal and special staff, are not
exempt from the Rules. In fact, as is the case in almost all areas of judge advocate practice (with the
exception of legal assistance and trial defense services), the client for the operational law attorney is the
1
Department of the Army. Thus, the lawyer must always act in the best interests of the Army – not
individual commanders and units. See AR 27-26, Rule 1.13.
Fratricide incidents, reliefs for cause, and investigations calling into question the conduct of
commanders can become defining events for JAs who have developed strong ties with their units. JAs
must remain mindful of Rule 1.7 (Conflict of Interest) and Rule 1.13 and stand ready to advise
commanders that the lawyer can no longer give advice on a particular matter and must take action adverse
to the commander to protect the interests of the Army. Rule 1.13 has explicit guidance regarding
situations where a commander may act contrary to law or regulation. In such cases, the lawyer should ask
the commander to reconsider; advise the commander to seek a second opinion (perhaps from the SJA or
another senior judge advocate); inform the commander of your ethical obligations; and, if appropriate, refer
the matter to a higher authority in the lawyer’s technical chain of supervision. In appropriate cases, the
lawyer should refer commanders to the Trial Defense Service or Legal Assistance counsel for independent
and individual advice.
JAs in a theater of operations may find themselves deployed away from the legal support structure
of the Office of the Staff Judge Advocate. The JA may be the only attorney available for consultation on
personal legal affairs. While JAs assigned as operational law attorneys may provide legal assistance
advice, the attorney needs to be particularly sensitive to real or perceived conflicts of interest. For
example, soldiers with questions regarding family support obligations may later find themselves in conflict
with the command. If the operational law attorney has advised the soldier, the attorney may not then
advise the command on the same matter. (Rule 1.7). In such a situation, the operational law attorney
must refer the command to another source of legal advice.
Deployment away from ordinary means of legal support may also deprive the operational law
attorney from use of common legal references. Rule 1.1 requires all attorneys to render competent legal
advice. It is possible that deployed attorneys may be unable to research a point of law or consult with
other attorneys to obtain the information or skill they need to advise the client competently. In such a
circumstance, the comment to Rule 1.1 states that the attorney may still advise the client, but must limit the
assistance “to that reasonably necessary in the circumstances, for ill considered action can jeopardize the
client’s interest.”
Deployment and SRP environments present unique challenges for routine ethical obligations such
as confidentiality (Rule 1.6) and screening for conflicts of interest (Rules 1.7, 1.8, 1.9, and 1.10). There is
no exception to these requirements simply because the environment makes them difficult. Operational law
attorneys and deployed JAs must plan for these challenges and seek solutions to ensure they keep their
ethical obligations to clients. Similarly, the Rules require supervisors to take reasonable steps to ensure

1
Note that Judge Advocates assigned to unified commands or other executive agencies, while governed by Rule 1.13, have as their
client the organization of assignment, not the Army (see Comment to Rule 1.13). If assigned as the Legal Advisor to a Combined or
United Nations Command, the Judge Advocate's client, and resultant ethical obligation, is less defined. Although a strong argument can
be made that an Army Judge Advocate assigned, for example, as the Legal Advisor to a UN Mission, still has the Army as his client,
such an assignment may at least temporarily make the UN -- and not the Army -- his client for purposes of Rule 1.13. While this situation
may seem anomalous at first blush, it is closely related to the situation of an attorney assigned to the Trial Defense Service. In such an
assignment, the attorney’s loyalty is to the soldier-client, and not the US Army.
While in most instances this may create no difficulty, it is not outside the realm of possibility that UN and U.S. interests might
become adverse during the course of an operation. (Two possibilities which might involve Judge Advocates are disputes over fiscal and
property issues, or inquiries concerning command and control competence, most likely arising subsequent to a military mishap.) In this
circumstance, a Judge Advocate might be ethically bound to act in a manner adverse to the interests of the United States, an anomalous
position for an attorney and officer. Given the thrust of Presidential Peacekeeping Directive 25 (see Ch. 26, Peace Operations, this
Handbook), Judge Advocates may never be in this situation -- nevertheless, Judge Advocates who think they are in a potential conflict
situation should raise this issue with their supervisory/technical line Judge Advocate without delay.

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that their subordinates, including non-lawyer assistants, comply with the Rules. (Rules 5.1, 5.2, 5.3).
Substantial distance between the supervisor and the subordinate, while a factor in what is reasonable,
does not relieve supervisors of their responsibilities. JAs at all levels must incorporate professional
responsibility into their deployment planning and preparation in order to ensure that they meet their ethical
obligations.

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 APPENDIX H
REPORTS
The following periodic or episodic reports pertain to operational/international law:

1. Report of Actual or Suspected Violation of the Law of War. As required, upon occurrence of a
"reportable incident." A "reportable incident" is a possible, suspected, or alleged violation of the law of
war. Submitted by the fastest means possible, through command channels, to the responsible CINC. DoD
Directive 5100.77, "Department of Defense Law of War Program," 10 Jul 79 (DoD Directive 5100.77 is
under revision; the revised Directive will establish joint reporting procedures). (Law of war reporting
requirements and procedures are commonly restated in unified command directives and subordinate
command regulations. They should also be in unit TACSOPs and FSOPs.)

2. Report of the Exercise of Criminal Jurisdiction by Foreign Tribunals Over U.S. Personnel. Required
as an annual summary, report, and assessment of the exercise of foreign criminal jurisdiction. Submitted
through command channels to OTJAG for consolidation and submission, through the DoD General Counsel,
to the Senate Armed Services Committee. In addition to the statistical summary of cases, prepared on DD
Form 838, the report includes a compilation of expenditures for counsel fees, court costs, and bail; and an
assessment by the Designated Commanding Officer (DCO) of the impact of local jurisdictional
arrangements on mission accomplishment, morale, and discipline. DoD Directive 5525.1, "Status of
Forces Policies and Information," 7 Aug 79, w/C1, 9 Apr 85 (under revision); and AR 27-50, "Status of
Forces Policies, Procedures and Information," 15 Dec 89, chapter 4 (under revision). The reporting
process may be implemented by unified command Directives and subordinate command regulations (in
USAREUR, for example, the entire foreign judicial liaison system is implemented by EUCOM Directive 45-
3, 3 Mar 88, "Foreign Criminal Jurisdiction Over U.S. Personnel;" USAREUR Reg 550-50, "Exercise of
Foreign Criminal Jurisdiction Over U.S. Personnel," 11 Jan 90, w/C1, 26 Jan 93; and USAREUR Reg 550-
56, "Exercise of Jurisdiction by Federal Republic of Germany Courts and Authorities Over U.S. Personnel,"
17 Dec 92.

3. Individual Case Report -- Exercise of Criminal Jurisdiction by Foreign Tribunals Over U.S. Personnel
(DD Form 1936). Required whenever a foreign government exercises criminal jurisdiction over U.S. military
personnel, civilian employees, or dependents. Not required for minor offenses. An initial report and timely
supplemental reports are submitted, as required, through command channels, to OTJAG. DoD Directive
5525.1 and AR 27-50, para. 4-9.

4. Report of Visit -- U.S. Personnel in Foreign Penal Institution (DD Form 1602) (commonly termed the
"Monthly Visitation Report"). Required monthly, if applicable. Submitted through command channels to the
DCO; reports indicating adverse confinement conditions will be forwarded to OTJAG. DoD Directive
5525.1 and AR 27-50, para. 4-7.

5. Report of U.S. Personnel in Post-trial Confinement in Foreign Penal Institutions (commonly termed
the "Confinement Report"). Required quarterly (although a proposed change to the DoD Directive would
change the requirement to semi-annually); negative reports are required. Submitted through command
channels to OTJAG. DoD Directive 5525.1 and AR 27-50, para. 4-5.

6. Serious or Unusual Incident Report. As required. Submitted "without delay by electrical means" to
OTJAG. A list of reportable serious incidents (likely Congressional interest, possible capital punishment,
for example) are provided in AR 27-50, para. 4-8. DoD Directive 5525.1 and AR 27-50.

7. Trial Observer Report and Trial Observer Report on Appeal. As required. Submitted immediately
after conclusion of proceedings by trial observer through command channels to OTJAG (a proposed
change to the DoD Directive would require that trial observer reports need only be sent for review to the
unified commander). DoD Directive 5525.1 and AR 27-50, para. 4-6.

8. Report of Conclusion of International Agreement. As required. Three copies of each international

agreement concluded by an Army element must be submitted within 10 days of entry into force to OTJAG

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International and Operational Law Division, 2200 Army Pentagon, Washington, D.C. 20310-2200 (FAX
DSN 223-5120 or commercial 703-693-5120. (OTJAG will then provide requisite copies of agreements to
the DoD General Counsel and DoS Assistant Legal Advisor for Treaty Affairs.) DoD Directive 5530.3,
"International Agreements," 11 Jun 87 and AR 550-51, "Authority and Responsibility for Negotiating,
Concluding, Forwarding, and Depositing of International Agreements," 1 May 85 (under revision).

9. Report of Questionable Activities (commonly termed a "Procedure 15 Report"). As required, upon

occurrence of a "questionable activity." A "questionable activity" is any conduct by an intelligence activity
that may violate law, any Executive or Presidential Directive, or applicable DoD policy, to include AR 381-
10. Commanders of intelligence units or their employees must report questionable activities by electrical
message to HQDA (DAMI-CIC), Washington D.C. 20310 not later than 5 days of discovery. Reports will
include a description of the nature of the questionable activity; the date, time, and location of occurrence;
the individual or unit responsible for the questionable activity; a summary of the incident, including
references to particular portions of AR 381-10; and the status of the investigation of the incident. (Note
that employees are encouraged to submit such reports through command channels; however, if the
employee desires, reports of questionable activities may be sent directly to the following: the ACSI, HQDA;
the Office of The Inspector General, HQDA; or to the Office of the Army General Counsel, Washington,
D.C. 20310.) Within 30 days of the initial report, the intelligence organization will forward a final report,
through command channels, to HQDA (DAMI-CIC) Washington D.C. 20310. The report must be reviewed
by the supporting Judge Advocate and will include: the results of the investigation; disciplinary or corrective
action taken or contemplated; and, if the investigation cannot be completed within 30 days from the date of
the initial report, a statement of the status of the investigation, reasons for the delay, and an estimated
time of completion. Executive Order 12333, "US Intelligence Activities," Dec. 4, 1981 and AR 381-10, "US
Army Intelligence Activities," 1 Jul 84.

10. Report of Receipt of a Request From a Foreign National for Political Asylum or Temporary Refuge.
As required, upon receipt of a request or an indication that a request is imminent. DA elements must send
reports directly to the Army Operations Center (AOC); reports should include the information identified in
paragraph 7, AR 550-1, but initial reports should not be delayed pending collection of all information. If
located in a foreign nation, send an information copy of reports to the U.S. Embassy. AR 550-1,
"Procedures for Handling Requests for Political Asylum and Temporary Refuge," 1 Oct 81.

11. Report by Training Assistance Team Members of Human Rights Violation. As required, upon
observation of acts of misconduct by foreign country personnel amounting to violations of Common Article
3 of the Geneva Conventions: violence to life and person (in particular, murder, mutilation, cruel treatment,
and torture); taking of hostages; outrages upon personal dignity (in particular, humiliating and degrading
treatment); and passing of sentences and carrying out of executions without previous judgment by a
regularly constituted court, affording all the judicial guarantees that are recognized as indispensable by
civilized people. Send reports through command channels, using the "SALUTE" format (Size, Activity,
Location, Unit, Time, Equipment) to the U.S. in-country authority designated by the Country Team. AR 12-
15, "Joint Security Assistance Training (JSAT) Regulation," 28 Feb 90.

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 APPENDIX I
THE UN CHARTER

INTRODUCTORY NOTE

The Charter of the United Nations was signed on 26 June 1945, in San Francisco, at the
conclusion of the United Nations Conference on International Organization, and came into force on 24
October 1945. The Statute of the International Court of Justice is an integral part of the Charter.
Amendments to Articles 23, 27 and 61 of the Charter were adopted by the General Assembly on
17 December 1963 and came into force on 31 August 1965. A further amendment to Article 61 was
adopted by the General Assembly on 20 December 1971, and came into force on 24 September 1973. An
amendment to Article 109, adopted by the General Assembly on 20 December 1965, came into force on
12 June 1968.
The amendment to Article 23 enlarges the membership of the Security Council from eleven to
fifteen. The amended Article 27 provides that decisions of the Security Council on procedural matters shall
be made by an affirmative vote of nine members (formerly seven) and on all other matters by an
affirmative vote of nine members (formerly seven), including the concurring votes of the five permanent
members of the Security Council.
The amendment to Article 61, which entered into force on 31 August 1965, enlarged the
membership of the Economic and Social Council from eighteen to twenty-seven. The subsequent
amendment to that Article, which entered into force on 24 September 1973, further increased the
membership of the Council from twenty-seven to fifty-four. The amendment to Article 109, which relates to
the first paragraph of that Article, provides that a General Conference of Member States for the purpose
of reviewing the 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 nine members (formerly seven) of the Security Council.
Paragraph 3 of Article 109, which deals with the consideration of a possible review conference during the
tenth regular session of the General Assembly, has been retained in its original form in its reference to a
"vote, of any seven members of the Security Council", the paragraph having been acted upon in 1955 by
the General Assembly, at its tenth regular session, and by the Security Council.

CHARTER OF THE UNITED NATIONS

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 larger 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 inter-national 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,

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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 I
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 self-determination 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.

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

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the Declaration by United Nations of 1 January 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 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

Composition
Article 9
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.

Functions and Powers

Article 10
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 co-operation 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.

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 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.

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 co-operation 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.

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 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.

Voting
Article 18
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, 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.

Procedure
Article 20
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

Composition
Article 23
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.
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.

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Functions and Powers
Article 24
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 world's 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.

Voting
Article 27
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.

Procedure
Article 28
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.

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.

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 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, report 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.

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.

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 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 and 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.

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 ac-
cordance 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 Member's 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

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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 Council's 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 Committee's 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.
4. The Military Staff Committee, with the authorization of the Security Council and after
consultation with appropriate regional Agencies may establish regional sub-committees.

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-defence
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-defence 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

I-9
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.

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 cooperation; 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.

I-10
 Article 58
The Organization shall make recommendations for the coordination of the policies and activities of
the specialized agencies.

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

Composition
Article 61
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.

Functions and Powers

Article 62
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.
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

I-11
specialized agencies to obtain reports on the steps taken to give effect to its own recommendations and to
recommendations on matters falling within 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.

Voting
Article 67
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.

Procedure
Article 68
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.

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

I-12
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 co-operate
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 Chapters 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 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 there under by subsequent individual
agreements. These territories are herein after 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

I-13
 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.

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 trustee-ship 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
defence and the maintenance of law and order within the trust territory.

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 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 XIII
THE TRUSTEESHIP COUNCIL

Composition
Article 86
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.

Functions and Powers

Article 87
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.

Voting
Article 89
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.

Procedure
Article 90

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.

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 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 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.

I-16
 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
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 1 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 Chatter 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 connexion 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.

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 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, 30 October 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.

I-18
 GLOSSARY

AAA Army Audit Agency

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
ACOM Atlantic 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
AD Air Defense
ADA Air Defense Artillery
ADC Area Damage Control
ADC-M Ass't Division Commander-Maneuver
ADC-S Ass't 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
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
AMO Automation Management Office
ANG Air National Guard
ANGLICO Air & Naval Gunfire Liaison Company
AO Area of Operations
AOD Area-Oriented Depots
AOR Area of Responsibility
APC Armored Personnel Carrier APOD
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

GLOSSARY-1
ASAP As Soon As Possible
ASG Area Support Group
ASIC All Source Intelligence Center
ASP Ammunition Supply Point
AT Antiterrorism
AT Antitank
AT Annual Training
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
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 Commander's 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
CI Civilian Internee
CIA Central Intelligence Agency
CID Criminal Investigation Division
CIF Central Issue Facility
CIMIC Civil-Military Cooperation
CINC Commander in Chief

GLOSSARY-2
CJA Command Judge Advocate
CJCS Chairman, Joint Chiefs of Staff
CJTF Combined Joint Task Force or Commander, JTF
CMCA Courts-Martial Convening Authority
CMO Civil-Military Operations
CMOC Civil-Military Operations Center
CMTC Combined Maneuver Training Center
CO Commanding Officer
CO 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 Officer's Representative
COS Chief of Station
COSCOM Corps Support Command
CPL Civilian Protection Law
CP Command Post
CPX Command Post Exercise
CS Combat Support
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
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
DOC Division Operations Center

GLOSSARY-3
DOC Department of Commerce
DOD Department of Defense
DOJ Department of Justice
DOS Department of State
DOS Days of Supply
DOT Department of Transportation
DRB Division Ready Brigade
DREAR Division Rear Area
DRF Division Ready Force
DS Direct Support
DSA Division Support Area
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
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 or Equal Opportunity
EOC Emergency Operations Center
EOD Explosive Ordnance Disposal
EPW Enemy Prisoner of War
EOD Explosive Ordnance Disposal
ETA Estimated Time of Arrival
EUCOM US European Command
EW Electronic Warfare
FA Field Artillery
FA Functional Area
FAA Federal Aviation Administration
FAA 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
FLOT Forward Line of Troops
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

GLOSSARY-4
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) Ass't Chief of Staff, Personnel
G-2 (Division) Ass't Chief of Staff, Intelligence
G-3 (Division) Ass't Chief of Staff, Operations & Plans
G-4 (Division) Ass't Chief of Staff, Logistics
G-5 (Division) Ass't Chief of Staff, Civil Affairs
GAD Government Appellate Division
GCMCA General Courts-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
HALO High Altitude Low Opening
H/CA Humanitarian/Civic Assistance
HD Heavy Drop
HE High Explosive
HEAT (round) High-Explosive Anti-Tank
HEMTT Heavy Expanded Mobility Tactical Truck
HEP-T High Explosive Plastic Tracer
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
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
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

GLOSSARY-5
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
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 US 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
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

GLOSSARY-6
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
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
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

GLOSSARY-7
OCOKA Observation & Fields of Fire, Cover & Concealment, Obstacles, Key Terrain, and Avenues of
Approach & Military Corridors
OCONUS Outside Continental Limits of the US
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 Curium 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
PSS Personnel Service Support
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
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

GLOSSARY-8
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
SAD State Active Duty (Guard Units Order to State Service)
SAC Stand Alone Capability
SAC Special Agent in Charge
SAM Surface to Air Missile
SAMS School of Advanced Military Studies
SAO Security Assistance Organization
SAR Search & Rescue
SCI Sensitive Compartmented Information
SCM Summary Courts-Martial
SCMCA Summary Courts-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 Courts-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
TA 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
TAJAG The Assistant Judge Advocate General

GLOSSARY-9
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
TOE Table of Organization and Equipment
TOT Time On Target (for Arty); Time Over Target for AF
TOR Terms of Reference
TOT Time on Target
TOW Tube-launched, Optically tracked, Wire-guided
TPFDL Time Phased Force Deployment List
TPL Time Phase Line
TRADOC US Army Training and Doctrine Command
TRP Target Reference Point
TSOP Tactical Standing Operating Procedure
TTP Tactics, Techniques, & Procedures
TVA Target Value Analysis
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 Children's Emergency Fund
UNMIH UN Mission in Haiti
UNODIR Unless Otherwise Directed
USACAPOC US Army Civil Affairs & Psychological Operations Command
USAFR US Air Force Reserve
USAIA US Army Intelligence Agency
USAID US Agency for International Development
USALSA US Army Legal Services Agency
USAR US Army Reserve
USARCS US Army Claims Service
USAREUR US Army Europe
USASOC US Army Special Operations Command
USDA US Department of Agriculture
USG US Government
USIA US Information Agency
USIS US Information Service
UT The Nation’s Best Football Team
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
WO Warning Order
WP White Phosphorous
WRMS War Reserve Material Stocks
WPR War Powers Resolution
XO Executive Officer

GLOSSARY-10
 INDEX
A
access agreement...........................3-4
Acquisition and Cross-Servicing Agreements….3-
1, 3-4, 3-8, 3-31 thru 3-40
acquisition of supplies and services.......9-1thru
9-2, ch 11
ACSA (See Acquisition & Cross-Servicing
Agreements)
Admin Tech P & I (immunity)........3-2, 3-9, 24-
23, 24-24
Aerospace surveillance and reconnaissance…
A-1
AFP 110-31, Conduct of Armed Conflict & Air
Operations..........................29-1, 29-5, A-1
Agency for International Development...10-5, 12-
4, 12-5, 12-11, 18-14, 23-1, 23-2, 23-5, 24-
10, E-5
AGR......... D-1, D-4, D-5, D-8
AGR judge advocates...... D-1
Aiding the Enemy.....................17-9
Air Force…..19-16, A-1, A-2, ch 29
Air Force Assistance to Civil
Authorities...........21-1
Air Force Reserve ....... App D
Air National Guard…….App D
AirLand Battle Doctrine .... 1-2
Al Firdus bunker .............18-3
Ambassador ............ E-3, E-5
American Friends of Action Internationale Contre
La Faim ...................... E-9
American Red Cross........21-5
anticipatory self-defense......4-3, 4-5
Antideficiency Act...... 12-2, 12-17, 12-18
anti-personnel landmines........18-5, 18-6, 23-3
anti-terrorist operations.... B-2
AOC............................... H-2
AOR................ 2-3, 23-2, 3-1
APEC ............................. 2-2
appropriated funds........11-2,12-1, 12-2, 12-5,
12-17, 12-18, 24-9
Asylum.......6-15, 6-22, 6-23, 15-8, 26-1
AR 27-1, Judge Advocate Legal Service....1-3
AR 27-10, Military Justice.......1-3, ch 17
AR 27-20, Claims .. 1-3, ch 10
AR 27-50/SECNAVINST 5820.4G/AFR 110-12
............................3-2, 3-9
AR 381-10, US Army Intelligence Activities
...................... 7-2 thru 7-4
AR 40-3, Medical Services ....21-8
1
AR 415-15 ............ 12-7, 12-8
AR 415-35..............12-8
AR 420-10, Management of Installation
Directorates of Eng'g & Housing........12-7,
12-8
AR 550-51 ...............3-2, 3-7.
AR 570-2, Manpower Requirements Criteria
.................................. 1-3
armed conflict ......8-1, 8-9, 8-10, 8-15, 13-1, 13-
2, 13-3, 13-4, 13-10, 13-16 thru 13-21, 18-1,
18-2, 18-4, 18-5, 18-7, 18-8, 18-11 thru 18-
13, 25-1, 25-11, 25-20, 29-1
Armed Conflict and Air Operations......29-1, A-1
armor-piercing shells.......18-6
Arms Control24-2, 24-8, 24-10
Arms Export Control Act....... 3-7, 3-31, 12-11,
12-12, 12-14, 12-15, 15-3, 24-1, 24-4,
Army as the client............G-1
Army Guard Legal Personnel.........D-2
Army Legal Assistance Program.......9-1, 19-1,
19-7, 19-10, 19-12
Army Materiel Command...........21-7
Army National Guard..........22-1, 22-4, 22-8, 22-
14, 22-15, 22-18, 22-24, D-1, D-2, D-7
Army Reserve ..........D-1, D-3
ARNG.............19-1, 19-7,19-14, D-1, D-3, D-5,
D-7, D-8
ARNG Enhanced Brigades...........D-2
ARNG/AC SJA coordination.........D-2
ARPERCEN ...... D-5 thru D-7
Art 51 of the UN charter......4-1, 4-2, 4-3, 4-5,
13-9, 25-1
Art. 139 claims……….10-3, 10-5, 10-7
Art. 5 Tribunal SOP ........18-8
Art. 5 Tribunals...............18-8
article 2 conflict..............5-15, 9-2, 13-2 thru 3,
13-17, 18-2, 18-8, 18-10
ARTICLE 2 THRESHOLD...........9-2,13-17
article 3, common to the four Geneva
Conventions .............13-2, 13-3, 13-7, 13-9,
18-9
B
Battlefield Procurement
(acquisition)....................9-1, 9-2, 11-9
Blanket Purchase Agreements........11-1, 11-6
blinding lasers ................18-7
bona fide need rule.......12-17
Booby traps .......... 18-5, 18-6
Brook-Alexander Amendment .........24-19
C
CARICOM .....................20-1
carrier battle group .......... C-1
Carter-Jonassaint Agreement...5-5, 5-7, 13-18
thru 13-21
Case-Zablocki Act ...3-5, 3-16
Cash for Weapons Program........12-5
Casualty Assistance..19-8, 19-17, 19-20
Catholic Relief Services ... E-9
CENTCOM………….2-3, 2-4 , 17-12, 17-13
Chairman of the Joint Chiefs of Staff...........2-3,
8-10, 23-2 (also see CJCS)
Chapter VII, UN Charter....4-1 thru 4-3, 5-7, 13-
16, 25-1 thru 25-3, 25-6, 25-8 thru 25-12, 25-
15, 25-20, I-2, I-8, I-9
chemical and bacteriological weapons......18-3
thru 18-4
chemical weapons.....5-16, 18-1, 18-2, 18-4, 18-
5, 18-19
Chemical Weapons Convention.........5-16, 18-2,
18-4
Chicago Convention26-2, 29-1, 29-2, 29-4
Chief of Diplomatic Mission...26-1
Chief of Military Mission . ..E-3
Chief of Station ............... E-3
CIA ................. 7-1, 7-2, 26-1
CID .............................18-12
CINC (Traditional Activities Funding)…24-6, 24-
15, 24-16
CINC initiative fund…12-6, 12-12, 23-10, 23-7
CINC USSOCOM ...........15-3
CINCs2-3, 3-7, 23-2, 23-7, 24-15, 24-16
Circular 175 Authority…..3-5, 25-13
CIVIL AFFAIRS...........14-3, 14-8, 14-10, 14-13,
14-14, 14-19, 14-21, 15-1, 15-2, 15-4 thru 15-
9 Contract Forms ............... 9-1
Civil and Political Covenant...13-4, 13-11 thru 13-
14
Civil Disturbance.....22-1, 22-3, 22-15, 22-16,
22-18, 22-19, 22-21, 22-24
Civilian’s Convention (see Fourth Geneva
Convention)
Civilian persons....9-2, & ch 13 generally
CIVILIAN PROTECTION LAW........13-1
civilians..........ch 13 generally, 18-1 thru 18-2,
18-17
Civilians Deployed in Support of US Forces
...............................18-10
Civilians seeking refuge.......26-3
Civil-Military Operations (CMO)........15-4 thru
15-7
2
CJCS2-3, 3-2, 3-6, 3-8, 3-41, 8-2, 8-3, 8-8, 8-
14, 23-2, 24-15
CJCSI 7401.01 (CINC Funds).............12-6
claims...........................1-1, 1-3, 3-6, 3-11, 3-
12, 3-15, 3-25, 3-26, 3-28, ch 10, 14-7, 14-
10, 21-6, 21-7, 23-7, 23-8
claims authority ....23-8, ch 10
Claims References and Forms.....14-7, ch10
Clean Air Act..................21-7
Clean Water Act.............21-7
CLEAs (LEAs)…………..12-3, 21-6, ch 22
CMOC............ 15-5 thru 15-6
Coast Guard ................... E-6
Coleman v. Tennessee......13-15, 13-16
Combat claims…….10-1, 10-4, 10-5, 10-6
Combatant Commands .... 2-3
Combatants (captured)…..13-8, 18-2 thru 18-4,
18-7, 18-9, 18-14 thru 18-17, 26-3
COMMAND REGULATIONS....1-3
Commander's Handbook on the Law of Naval
Operations C-2
command responsibility....18-11
communication with the enemy....17-9
Communications Support.....3-12
Community Relations Service.....E-7
COMSEC……3-4, 3-8, 25-16, 25-18
confinement............17-2, 17-5, 17-8, 17-10
Confiscation.......9-1, 18-12, 18-15
Congressional Budget Office...24-9
Congressional Research Service...24-9
CONPLAN……….6-1, 6-2, 6-5
Consular Officer…………E-4
Conscientious Objectors....16-1, 6-2
containment...2-1
Contingency Construction...12-7, ch 23, ch 24
Contingency Funds of the Sec'y of the Army
.................................12-6
Contract Law References....12-9
Contracting……….2-6, ch 11, ch 12, 23-6
contracting officers……..11-3, 11-4
contractor personnel........ 3-2
Convention Against Torture and other Cruel,
Inhuman or degrading Treatment or
Punishment ................13-4
Convention on the Prevention and Punishment of
the Crime of Genocide......13-4
Convention on the Privileges and Immunities on
the UN…….3-17, 3-19, 25-15
CONVENTIONAL LAW........13-17
Conventional Weapons Convention.…...5-16, 18-
2, 18-5, 18-6, 18-7
Cooperative Exchange……….24-3
Cooperative for American Relief Everywhere,
Incorporated ............... E-9
counterdrug operations......2-4, 12-3, 12-11, 12-
15, 12-16, 15-1 ch 22
Counterintelligence ........ ..7-2
Counterintelligence Force Protection Source
Operations......7-2
Country Team . .........1-3, E-5
Cover and Cover Support........7-3
CPL (Civilian Protection Law)……..ch 13
CPL’s four step process........13-5
criminal jurisdiction....3-9, 3-24, 17-3, 25-10, 25-
22
criminal misconduct while deployed....ch 17
cross-servicing agreements....(see Acquisition &
Cross Servicing Agreements)
Cryptologic Support…………..3-4, 3-6, 3-7, 3-8
customary international law....3-41, 4-1, 4-2, 4-3,
4-4, 4-5, 5-15, 5-18, 5-20, 13-4, 13-8, 13-9,
13-10, 13-12, 13-19, 18-1 thru 18-3, 18-6, 18-
10
Customs and Taxes…………3-1, 3-2, 3-11, 3-
20, 3-28, 3-38
Customs Inspections.....14-18, 14-21
CVBG............................. C-1
CWC…………..(see Chemical Weapons
Convention)
D
Dayton Peace Agreement....3-2, 3-12, 3-17, 3-
27, 5-6, 13-5 thru 13-6, 25-8, 25-10
DCI ................................ 7-1
DCO..............................21-3
De Minimis HCA . ...23-2, 23-3
deadly force…..3-11, 22-18, 22-21, 22-23, 25-
11, ch 8
defense (self)....4-1 thru 4-6, 22-18, 22-21, 22-
23, 22-28, 25-6, 25-11, 25-12, 25-14
Defense Attaché Officer....E-3
defense cooperation agreements....3-4
Defense Emergency Response Fund.....12-16
Defense Security Assistance Agency......E-2, 12-
12, 24-7, 24-11
Deny Flight (Operation).....18-2
DEP’T OF ARMY, PAMPHLET 27-161-1, LAW OF
PEACE……….3-5, 3-9, 5-7, 5-14, 13-1, 13-15,
13-16
DEP’T OF ARMY, REGULATION 27-50...3-2, 3-9
DEP’T OF DEF., DIRECTIVE 5525.1...3-2
Department of Agriculture...E-1
Department of Defense Appropriations Act, 1996
.................... 12-11, 12-12
DEPARTMENT OF JUSTICE....E-6
Department of State ........ E-2
3
Department of Transportation....E-1, E-6
DEPLOYMENT BRIEFING....14-17
Deployment Checklists.....ch 14
Deployment Guide.... ch 19 (legal assist), ch 10
(claims)
Deployment SOP.....6-4, 14-4
Deputy Chief of Mission ... E-3
DERF ............... 12-16, 12-17
DESERT STORM…...1-1, 3-6, 3-9, 5-2, 5-20, 8-
4, 10-6, 11-2, 11-6, 13-5, 13-17, 18-2, 18-8,
18-16
Designated Commanding Officer.....17-13
detainees.......3-27, 13-8, 15-8 thru 15-9, 18-8
thru 18-10, 18-14
Detention…….13-9, 13-10, 13-13, 18-10, 22-19,
22-21, 25-16, 25-18
Detention Center (Facility)……18-10, 13-10, 13-
13
DFAS…………….11-2, 12-8, 12-19
DIA ................................ 7-1
diplomatic immunity….3-9, 14-19
diplomatic notes (exchange)...3-5, 25-11
Direct Commercial Sales.....24-5, 24-6
Directorate of Military Support.....21-2
DISAM ....................... ch. 24
disaster assistance…….21-1 thru 21-8, 23-5
Disaster Assistance Fund (International)…23-6
disaster relief.....15-5 thru 15-10, 21-1, 21-7, 23-
5, B-3
disaster relief (domestic operations)......12-16
Disaster Relief Operations............12-1, 12-14,
15-6, 21-1 thru 21-8
Disaster Relief Statutes.....ch 21, ch 23
discrimination (in targeting)....18-3
dislocated civilians (and civilian treatment)
........ 15-4 thru 15-7, ch 18
displaced persons....13-5, 15-6, 15-7
Division Ready Force......14-2
Doctors Without Borders.....E-9
DOD 7000.14-R, Financial Management
Regulation12-2, 12-14, 12-18, 12-19
DOD Accounting Man. 7220.9-M....12-16, 12-19
DOD Dir. 5100.77………….1-1, 6-5, 13-2, 13-
21, 18-2, 18-8, 18-11, 18-12 25-11, H-1
DOD Directive 1404.10……18-11
DOD Directive 2000.11…….26-1, 26-3
DOD Directive 2010.9………3-8, 3-41
DOD Directive 2040.2………3-6
DOD Directive 2000.13, Civil Affairs.…..15-8
DOD Directive 5100.46, Foreign Disaster
Relief…………………..….23-7
DOD Directive 5525.1, "Status of Forces Policies
and Information ........... H-1
DOD Directive 5530.3, "International
Agreements…….H-2, 3-5, 3-6, 3-16
DOD Directive 6050.7, Environmental Effects
Abroad of Major DOD Actions……5-3, 5-4, 5-
7, 5-8, 5-12, 5-22
DOD General Counsel……..3-6, 3-7
DOD Manual 7110-1-M, Budget Guidance
Manual ....................12-17
DOD Manual (DOMs) 3025.1M....21-2
Domestic Disaster Relief.....12-1, 12-13, 21-2,
21-5
Domestic Support Operations....15-6, 21-1
DOMS...........................21-2
DOS………..3-7, 6-3, 25-5, 25-41, App. E
DOS Assistant Legal Advisor for Treaty Affairs
.................................. 3-7
draw down of defense articles ....23-7
Drug Enforcement Agency.....22-5, 22-6, 22-
13,E-6
drug interdiction………22-3, 22-8, 22-10, 22-14,
22-15
DSAA ...................12-14, E-2
E Family Care Plan…..14-2, 19-7, 19-3
Economic Support Fund......23-1, 23-2, 24-7, 24-
10, 24-19, E-5
Economy Act..11-9, 12-1, 12-11, 12-13, 12-15,
12-18, 12-19
ELINT............................. 7-1
ELOW (environmental law of war)……..5-2, 5-15
thru 5-18
electro-magnetic spectrum……..3-12
Embassy or consulate emergency action plans
.................................. E-3
embassy personnel………6-23
embassy situation report......E-3
Emergency Construction......12-9
Emergency Construction Authority.....12-1, 10-7
Endangered Species Act....5-1, 5-21
enemy dead.................18-11
enemy prisoner of war operations.......ch 18
generally
engagement strategy.....2-1 thru 2-2
enlargement strategy.....2-1 thru 2-2
ENMOD Convention......5-17 thru 5-19, 6-16
Entry/Exit Requirements.............3-11
Environmental Aspects of Overseas Operations
................................. ch 5
Environmental Compliance.......ch 5, 21-7, 23-7
environmental law........... ch 5
EPW (see also PW & POW)…… ch 18,
A-1
Establishment Clause......21-6
ethical and professional standards..... G-1
EUCOM....................2-3, 2-4
4
Evacuation ................... ch 26
exclusive jurisdiction.....3-1, 3-12, 3-24, 3-27
Executive Order 11850.....5-16, 18-4 thru 18-5
Executive Order 12114…..5-2 thru 5-14, 5-22
Executive Order 12333.....7-1, 21-6, H-2
Executive Order 12656.....26-1
Executive Order 12734.....12-9
EXERCISE DEPLOYMENTS......14-1, 14-15
Expanded IMET Program.........12-10, 12-14, 24-
5, 24-14 thru 24-20
Expert on mission status………3-21, 3-27, 25-
11, 25-17, 25-18
Extraordinary or Emergency Presidential
Authority .................24-25,
EXTRATERRITORIALITY..5-1, 13-12, 13-13
Extraterritoriality of Human Rights Treaties
............................... 13-12
F
FAA (Foreign Assistance Act)…. chs 12 & 24,
23-5, 25-7
FCA (Foreign Claims Act)….ch 10
Family Law……..14-18, 14-21, 19-11, 19-14
FAR (Federal Acquisition Regulation)………..3-5,
3-8, ch 11
Foreign Criminal Jurisdiction……3-9, 3-10
Foreign Claims Act...10-2 thru 10-8, 10-10, 10-
12, 10-14
FCC (foreign claims commission)……ch 10
FCO (federal coord. officer).….21-3
Federal Communications System...21-7
Federal Emergency Management
Agency(FEMA)..12-16, ch 21, App E
Federal Marshals ...........21-5
Federal Response Plan......21-2 thru 21-8
Federal Tort Claims Act.....10-2
Feed and Forage Act......12-6
Field SOPs .............1-3, 14-5
Fiscal law .................... ch 12
FM 100-5, OPERATIONS.....1-1, 13-1
FM 27-100, LEGAL OPERATIONS...1-2, 15-7
FM 41-10, CIVIL AFFAIRS.......1-2, 12-1, 12-10,
15-4, 15-6, 15-8
FM 27-10……….1-2, 6-6 thru 6-10, 6-12, 6-22,
9-1, 9-2, ch 18, …
FMS (foreign military sales)…….3-5, 3-8, 3-31,
15-3, 24-5, 24-10, 24-14
Food and Agriculture Organization of the United
Nations ....................... E-8
Force Protection…………8-6, 8-15, 21-6
Force Security................3-11
Force Service Support Groups......B-1, B-2
Forcing a Safeguard .......17-9
Foreign Assistance Act..ch 12 generally, ch 24
generally
Foreign Claims Act....... 1-2, 3-11, ch 10
Foreign Claims Commissions......... 1-3, ch 10
foreign disaster…….ch 12, ch 23, 24-18
Foreign Disaster and Emergency Assistance
12-1, 12-3, 12-4, 12-10, 24-18, ch 23
Foreign Disaster Assistance Operations..
.......... 12-12, ch 23, 24-18
Foreign Disaster Relief......12-12, 12-15, ch 23
Foreign economic assistance......E-5
Foreign Intelligence Surveillance Act........7-3
Foreign Intelligence Surveillance Court....7-3
Foreign Military Financing Program
(FMFP)........24-5, 24-19, 24-22
Foreign Military Sales (FMS).......3-5, 3-8, 3-31,
15-3, 24-5, 24-10, 24-14
foreign nation support....15-5 thru 15-6
Foreign Operations Appropriations Act…..23-11
Foreign Service officer...E-3 , E-4
FORSCOM ..................... 2-3
FORSCOM Message, Subject: Review of
Operations Plans (292030 Oct 84).....1-1
Foster v. Neilson ..........13-10
fourth Geneva Convention......5-17,.13-1 thru 4,
18-1, 18-9, 23-7
Fragmentary Orders (FRAGOs)...6-2
FSSG...................... B-1, B-2
Funded cost.......... 12-7, 12-8
G 3, 15-5 thru 15-6, ch 23, 24-16 thru 24-18, 24-
GAO……11-1, 11-9, 11-10, ch 12, 13-18, ch 12
23-2, 23-4, 23-6, 24-9, 24-13, 24-15, 24-23
GAO claims .................11-10
GARDEN PLOT .............21-5
Gas Protocol…….5-16 thru 5-18, 18-2
GC……ch 13
General Assembly (UN)....3-17, 3-26, 5-19, 25-
1, 25-15, 25-17, 25-19, 25-20, App. I,
General Orders…….17-2 thru 17-3
GENERAL ORDER NO. 1 (CENTCOM)....17-11,
17-12, 18-12
GENERAL ORDER NO. 1 (CJTF 190) ....17-13
Geneva Conventions….…..5-15 thru 5-18, 6-5,
6-7, 6-10, 6-13, 9-2, 13-1 thru 13-5, 13-17,
14-6, 14-7, 14-12, ch 18
Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed
Forces in the Field......13-1 (see GWS)
Geneva Convention for the Amelioration of the
Condition of the Wounded, Sick, and
Shipwrecked members of the Armed Forces
at Sea......3-1 (see GWS Sea)
5
Geneva Convention Relative to the Protection of
Civilian Persons in Time of War 13-1
(see GC)
Geneva Convention Relative to the Treatment of
Prisoners of War......13-1 (see GPW)
Geneva Convention ID cards..….18-11, 6-5
Geneva Protocol of 1925.....(see gas Protocol)
Goldwater-Nichols Reorganization Act.......1-1,
2-1, 15-1
GP I.....5-18, 5-19, 13-19, 13-20, 18-1, 18-2
GP II.....5-18, 5-19, 13-19, 18-1, 18-2
GPW.....6-7, 6-10, 6-12, 6-17, 18-8 thru 18-11,
13-1
GPW Article 4................18-9
Guard and Reserve Affairs Division of the Office
of the Judge Advocate General (GRA)
.................................. D-5
GWS Convention....6-5 thru 6-13, 6-9, 6-16 thru
6-19, 13-1, 18-1, 18-9
GWS(Sea)……..6-5, 6-6, 6-7, 6-8, 6-9, 6-11,
13-1, 18-1
H
Hague Convention No. IV Respecting the Laws
and Customs of War on Land..5-15, 6-5 thru
6-12, 6-14 thru 6-17, 13-1, 18-1, 18-2, 18-16
HCA (Humanitarian & Civil Assistance)....12-1,
12-3, 12-4, 12-6, 12-10 thru 12-13, 15-1, 15-
20 thru 24-22
HCA Activity Plan...23-8
herbicides5-16, 18-4 thru 18-5, 18-19
hospitals……….6-6, 6-7, 6-9, 6-16, 6-17, 18-4
Host nation....3-7 thru 3-10, 5-3 thru 5-10, 6-17,
6-25, 6-26, 10-1, 11-9, 13-13 thru 13-14, 15-
3, 15-4, 23-1, 23-6, 24-16 thru 24-17
Host Nation Forces.........15-4
host nation law……….1-1, 3-10, 3-11, 3-12, 5-
13, 6-26, 10-1, 13-13
Hostile Act………….8-3, 8-5, 18-10 thru 8-14
Hostile Intent…….8-3, 8-7, 8-11 thru 8-13,
human rights……...ch 13, 15-18, 18-10, 18-13,
ch 20, 24-1, 24-6, 24-10, 24-17 thru 24-19
human rights initiatives ....20-1
human rights law…..13-2, 13-3, 13-5, 13-7 thru
13-13, 18-13, 20-1
human rights treaties...13-4 thru 13-5
HUMINT.......................... 7-1
I
ICRC……13-1, 13-3, 13-9, 13-10, 13-19, 18-8
thru 18-15, E-10
IMA judge advocates………D-3 thru D-6
IMA Program…….D-4
IMET .. (see expanded IMET)
Immediate Response Authority....21-2
Immigration and Naturalization Service v.
Chadha ...................24-12
imminent danger.............26-3
immunity….3-9, 3-15, 3-17, 23-11, 25-16 thru
25-18, (see also exclusive jurisdiction),
immunity from laws that protect host nation
civilians13-9 thru 13-10, 13-13
imprest fund…….11-1, 11-3, 11-6, 11-7
Improper Use of Countersign....17-4, 17-9
incendiary weapons ........18-6
indiscriminate use of weapons (see discriminate)
Individual Case Report -- Exercise of Criminal
Jurisdiction by Foreign Tribunals Over U.S.
Personnel ................... H-1
Individual Mobilization Augmentees…..(see IMA)
Individual Ready Reserve....D-4, D-5
inherent right of self-defense....8-10
Intelligence collection against US persons
.................................. 7-1
intelligence community ..... 7-1
Intelligence Law .............. 7-1
Intelligence Operations .... 7-1
Intelligence Oversight....... 7-1
Intelligence Oversight Act....7-1
Intelligence Support to Joint Operations (Joint
Pub 2-0) ..................... 1-3
international agreement..... 2-4, 3-4,ch 3, 4-2, 5-
4, 5-6, 5-7, 5-13, 5-15, 5-20, 6-22, 8-4, 8-4,
8-9, 10-3, 10-6, 13-16, 25-10
International Agreement Claims Act…….5-20,
10-3, 10-6
International and Operational Law References
........................ ch 1, 14-7
international armed conflict (see armed conflict)
International Committee of the Red Cross
.......................(see ICRC)
International Court of Justice.…….13-7, I-1, I-3,
I-8, I-16
International Covenant on Civil and Political
Rights...13-4, 13-12, 13-13
International Federation of Red Cross and Red
Crescent Societies .... E-11
INTERNATIONAL LAW CONSIDERATIONS
............................... ch 14
International Military Education and Training
.......................(see IMET)
international organizations.....3-4, 3-12, 3-31 thru
3-32, 25-13 thru 25-14, App E
International Rescue Committee.....E-10
International Traffic in Arms Regulations..
.................................24-6
6
interoperability.....3-4, 3-6, 24-3, 24-14
invasion .......13-16 thru 13-18
Irish Concern................. E-10
IRR judge advocates…….D-4 thru D-5
J
JAGSO...14-6, 14-9, 18-9, D-4, D-6
JCSP (Joint Strategic Capabilities Plan)..…2-3,
6-1, 6-8, 6-10, 18-4
JCS SROE...6-25, ch 8, 13-2, 18-11(also see
ROE)
JOINT AND COMBINED COMMUNICATIONS
SECURITY……..3-4, 3-8, 25-16, 25-18
Joint Chiefs of Staff Memoranda (MJCS 59-83)
.................................. 1-1
Joint Civil Affairs……...1-3, ch 15
Joint Detention Facility..(see detention center)
Joint Health Services (Joint Pub 4-02)..1-4
joint interrogation center……18-10
joint justice............ 17-2, 17-4
Joint Operations.............. 1-3
Joint Security Assistance Training....H-2
Joint Special Operations......ch 15
Joint Strategic Capabilities Plan (JSCP)....2-3,
18-4, 6-1
Joint Task Force (JTF Commander’s
Handbook)..1-4
Joint Travel Regulations (JTR)......12-10
Joint TTP for Antiterrorism.(Pub)..1-3
Joint TTP for Peacekeeping.(Pub)..1-3
Joint-Psychological Operations.(Pub)..1-3
JOPES..... 6-1, 6-2
jurisdiction...….3-1, 3-9, 3-10, 3-12, 3-15, 3-17,
3-24, 3-25, 3-27, 4-2, 5-14, 5-22, 17-3, 25-
10, 25-21 thru 25-23, ch 17, 18-9, 18-10 (see
also exclusive jurisdiction)
K
Kennedy Amendment……………….24-18
L
LAAWS………………….19-9, 19-11, 19-12
landmines.……..18-5, 18-6, 23-3, 24-5, 24-21,
24-22
lasers ............................18-5
LAW BY ANALOGY....13-2, 13-5, 13-21
Law of Armed Conflict (Law of War) ....1-1,
1-2, 1-3, 5-15, 5-17, 6-3, 6-5, 6-21, 13-5, 13-
17, ch 18, 25-11
Law of Sea ....................26-2
Law of the Flag....3-1, 3-9, 5-14, 5-15, 13-13
thru 13-15
Law of the Flag’s combat prong.....13-13
Law of the Flag’s consent prong....13-13
Law of War Program (DOD)……1-3
LAW OF WAR OUTLINE...18-14
Legal Advisor to a UN Mission......G-1
Legal Advisor to Special Operations.....15-1
legal assistance......... ...ch 19
LEGAL BRIEFING FOR DEPLOYMENTS
...............................14-18
Legal Services Team ....... D-4
LEGAL SUPPORT FOR THE DEPLOYING
FORCE .....................14-3
Legal Support Organization.....D-4
Letter of Offer and Acceptance (LOA).....15-3,
24-5
logistics support agreements...………3-7
looting .................. 17-8, 21-5
LSO (legal service organization)…… App D
LSSS (legal services support section - USMC)
.............................. App B
LST (legal service team)………..App D
M
MAAG (military assistance advisory
group)…....3-9, 24-23
MACOMs .................3-1, 3-7
MAGTF......App B
Major end items……..3-8, 3-35, 12-3, 12-4
Malingering ......... 17-5, 17-10
Marine Air Ground Task Force....B-1
MARINE CORPS......... App B
Marine Expeditionary Brigade....App B
Marine Expeditionary Force....App B
Marine Expeditionary Unit....App B
Marine operational JA....App B
MASINT.......................... 7-1
Master Scenario Events List...14-15
MCA (military civic action)………….15-5, 15-6
Media Pool System......App F
Media (PAO).....App F
Media (Handling Yourself!)...App F
Media Pool system .......... F-1
medical care to disaster victims….21-4, 21-7
Medical Support to Relief Workers.....21-7
MEF........................... App B
MEU........................... App B
Mil to Mil Dip Notes……..3-5, 25-11
MILCON (military construction) appropriations
.......12-3, 12-4, 12-7, 12-8, 24-5, 24-18
Mil Deps ......................... 2-3
Military Assistance Advisory Group.....(see
MAAG)
Military Assistance Advisory Group Agreements
...............................24-23
Military Assistance and Sales...24-4
7
military civic action......15-5, 15-6
Military Claims Act..........10-2
military commission.........18-9
Military Construction……(see MILCON
appropriations)
military justice .............. ch 17
military necessity…......5-15, 5-16, 5-17, 5-18,
18-3, 18-18, 18-19
Military Sealift Command.....B-3
Military Support to Civil Authorities.......ch 21
military support to law enforcement......ch 22
Military to Military Contacts......24-8, 24-15, D-3
Military to Military Diplomatic Notes…..3-5, 25-
11
Minor Military Construction, Army....…....12-4,
12-7, 12-8, 24-18
Misbehavior of a Sentinel....17-5, 17-9
Misbehavior before the enemy….17-6, 17-7
mission statements.....13-5 thru 13-6, 6-3, 25-2,
25-9
MMCA (minor military construction - Army) funds
.................. 12-7 thru 12-8
mobilization ............ ......ch 19
Mobilization at Home Station...19-5
MOBILIZATION PROCESSING PROGRAM
.................................19-5
Mobilization Support Organizations(MSO)
.................................. D-4
mutual defense treaty ...... 3-4
Mutual Logistic Support........3-18, 3-32, 3-41
Mutual Support Act (NATO)………3-31
N
NAF (numbered air force)....... A-2
National Command Authority (NCA)......2-1, 2-3,
6-25, 18-11
National Defense Information....7-1
National Environmental Policy Act (NEPA)….....5-
1, 5-2, 5-8
National Guard Bureau......D-1, D-2
National Guardsmen.....21-4, 21-5, ch 22, App D
National Military Strategy.….2-1, 2-2, C-1
National Security Act (1947)..…..2-1, 7-1
National Security Council.....24-9,.E-1
nation-building ................. B-3
NATO…………………....2-2, 2-3, 4-3, 4-5, 10-3,
10-7, 24-4, 24-22, 24-23, 25-3, 25-4, 25-9,
25-11,ch 3
NATO Participating nations……..24-23
NATO SOFA.…….10-11, 10-13, 14-17, ch 3
NATO ROE Card………..8-15
NATO Treaty…………4-5
Navy........................... App C
Navy and Marine Corps Reserve.......D-1
Negotiations (contract).....11-1, 11-5, 11-6
NEO...................... ......ch 26
NEO ROE......................26-3
NEO Sovereignty Issues...26-2
NEPA ................5-1, 5-2, 5-8
neutrality........................26-3
Nicaragua v. U.S…….13-7, 23-6
NGOs……...2-2, 15-6, 18-14, 25-20, App E
noncombatants.....ch 13, 18-3, 18-4, 18-7, 26-1,
26-2
noninternational (internal) armed conflict .....13-
3, 15-1, 18-5, 18-6 (also see article 3,
common to the Geneva Conventions)
nonjudicial punishment... ch 17
Non-Lethal Measures....... 8-4
Nonproliferation and Disarmament Fund...
.................................24-8
non-self-executing.........13-10
O
O&M funds.....ch 12, 23-1, 23-2, 23-3, 23-4, 23-
6, 23-7, 24-7, 24-13, 24-14, 24-15, 24-16, 24-
18, 25-13, 25-15
O&M funded missions.......12-3 thru 12-6, 24-14,
25-9, 25-12
occupation....9-1, 9-2, 13-12, 13-14, 18-2
occupation force...........13-12
occupied territories.........13-5
Offenses that can be punished by the death
penalty only in time of war:.….....17-4, 17-5,
17-8
Offenses that can only occur during time of war:
...................... 17-8, 17-10
Office of Humanitarian and Refugee Affairs
.................................23-2
Office of International Affairs.....E-7
Office of International Security & Peace Keeping
Operations….23-3
Office of Management and Budget
(OMB)……24-9
Office of SECDEF (OSD)……...3-2, 3-6, 3-10,
24-11
OOTW...1-1, 5-14, 5-15, 13-1, 13-2, 13-3, 13-
10, 18-9, 18-14, 25-5
operation and maintenance (O&M) funds .…(see
O&M funds)
Operational Chain of Command.......2-3
operational continuum....1-1, 15-4
OPLAN........ch 6
Operations Orders (OPORDS)......ch 6
OPLAW DEPLOYMENT CHECKLISTS.....ch 14
Ordering Officer's Handbook....11-1, 11-2
Ordering officer.......11-1, 11-3, 11-4, 11-6, 11-
7, 11-12 thru 11-14
OSD…………..(see Office of SECDEF)
8
OSJA DEPLOYMENT PLAN...14-1
Overseas Environmental Baseline Guidance
Document………..5-11, 5-12, 15-14
Overseas Humanitarian, Disaster & Civic Aid
(OHDACA) Program……23-1 thru 23-7, 23-11,
23-7
P
PACOM.......................... 2-3
PAOs ...................... F-1, F-7
Partnership for Peace SOFA......3-2, 3-3, 3-12,
3-13, 3-30, 12-13, 25-9, D-3
Partnership for Peace(PFP) Programs.....D-3
PDD (Presidential Decision Directive) 25…..25-2
thru 25-4
PEACE OPERATIONS .... 1-2
Peacekeeping Operations.......ch 25
Peacetime Engagement……2-2, 2-4
Personnel Claims Act………10-2, 10-5, 10-7
pillaging ..... 17-8, 18-16, 18-9
Pocket Card (ROE)…………8-5, 8-7, 8-14 thru
8-16
Pol to Pol (political to political)…….3-5
political asylum ...... 26-3, H-2
“political significance” (in negotiating international
agreements)……….3-16
populace and resources control.......15-5
POR (Preparation for Replacement for Overseas
Movement) ……..19-1
Posse Comitatus Act . ...ch 21
Post Security Officer ....... E-4
POW (see also EPW & PW)……18-7, A-1
Precautions in Attack……..18-2, 18-4
Pre-deployment Briefing…..14-17, 18-14, 19-2,
19-6, 19-7, 19-9
Presidential declaration of a "major
disaster”......21-1
Presidential declaration of an
"emergency".......21-1
Presidential draw down authority......12-3, 12-11,
12-15, 24-24
Pressler Amendment......24-20
Private Property…………9-1, 9-2, 10-6, 10-9,
10-19, 17-7, 17-8, 17-12, 17-13
private property on the battlefield.......ch 9, 10-6
privileges and immunities……..ch 3, ch 25 (see
also exclusive jurisdiction, jurisdiction, and
immunity)
PROFESSIONAL RESPONSIBILITY......G-1
proportionality ......5-15, ch 18
Protocol I (see GP I)
Protocol II (see GP I)
PSYOP ....................... ch 15
PUBLIC HEALTH SERVICE....E-7
pungi sticks....................18-6
purchase agreement (blanket)……11-6
purchase order………….11-1, 11-3, 11-6
purchase request, and commitment
(PR&C)……11-4
Purpose Statute…..ch 12
Purpose, Time, and Amount Rules….....24-13, ch
12
PVOs (private volunteer organizations)………App
E (RDL)…..ch 28
PW status........... 18-8, 18-11
PWs........................9-2, ch 18, also see EPW
and POW)
R
ratification (contracts)....3-4 thru 3-9, 11-1, 11-9,
11-10, 24-9
ratification (treaties)…..5-16, 13-11, 18-4 thru
18-7
RC .......................... ...App D
RC judge advocates .... App D
RCA (riot control agents)…….3-33, 5-16, 18-4,
18-5
real estate/real property……9-1, 9-2, 11-1, 11-
9, 10-3, 10-8
Real Estate Claims………..10-3, 10-8
receiving state............. ...ch 3
refuge............26-1, 26-3, H-2
Refugee Convention........13-3
refugee relief………24-24, 25-2, 25-14
Regional Security Officer.....26-1, E-4
Regional Support Command (RSC) SJAs
.................................. D-7
Remotely delivered mines....18-5
Report by Training Assistance Team Members of
Human Rights Violation....App H
Report of Actual or Suspected Violation of the
Law of War............. App H
Report of Conclusion of International Agreement
.............................. App H
Report of Questionable Activities.........App H
Report of Receipt of a Request From a Foreign
National for Political Asylum or Temporary
Refuge ................... App H
Report of the Exercise of Criminal Jurisdiction by
Foreign Tribunals Over U.S. Personnel
.............................. App H
Report of U.S. Personnel in Post-trial
Confinement in Foreign Penal Institutions
.............................. App H
Report of Visit -- U.S. Personnel in Foreign Penal
Institution ................ App H
REPORTS .................. App H
9
Requisition .......... 9-1 thru 9-2
requisitioned property......9-1 thru 9-2
Reserve Component.......App D
ROE.....1-1, 4-1, 4-4, 4-6, 6-4, 6-5, 6-6, 6-8, 6-
9, 6-13, 6-14, 6-20, 6-23, ch 8, 13-2, 14-4, ch
18, 23-8, 25-2, 25-3, 25-9, 25-10, 25-12, B-3
RULES OF PROFESSIONAL CONDUCT FOR LAWYERS
..................................G-1
Rucksack Deployable Law Office and Library
S
SA Personnel Legal Status...24-23
Safe-havens...................26-3
SALUTE" format (Size, Activity, Location, Unit,
Time, Equipment ......... H-2
Sample ROE .................8-14
SAO....... .....15-3, ch 24, E-4
Sealed bidding………11-1, 11-5
SECDEF…...2-3, 2-4, 3-6, 3-8, 3-20, 3-32, 3-41,
4-9, 5-3, 5-8, 5-12, 12-6, 12-10, 12-12, 23-6,
23-7, 24-11, 24-14, E-1, E-2
Secretarial Contingency Funds 12-5, 12-6
Security Assistance.….3-7, 6-23, 12-1, 12-4, 12-
10, 12-11 thru 12-14, 12-12, 12-13, 15-1, 15-
2, 15-3, ch 24, 25-7, 25-14
security assistance office ( see SAO)
Security Assistance Officer (see SAO)
Security Assistance Organizations...24-1, 24-11,
24-12
Security Assistance Training Teams……24-26
Security Council Resolutions (see UN Security
Council Resolutions)
Sedition ............... 17-5, 17-8,
Seizure ............... 9-1 thru 9-5
Self-Defense…...(see defense)
self-executing treaties....13-10 thru 13-12
sending nation......ch 3, 13-13 thru 13-16
Serious or Unusual Incident Report.....H-1
SGLI....19-2, 19-5, 19-6, 19-17
Simplified acquisition…....11-1, 11-4 thru 11-8,
11-13
Simplified Acquisition Competition Requirements
........................ 11-1, 11-7
SO (see Special Operations).
SO legal advisor.............15-9
SOF ........................... Ch 15
SOFA.…..ch 3, 5-21, 5-22, 6-4, 6-14 thru 6-17,
6-23, 7-2, 8-2, 10-2, 10-3, 10-7, 10-11, 10-
13, 13-16, ch 14, 15-8, 15-9, 17-3, 17-12, 18-
5, 22-12, 22-28, 23-9, 23-11, 25-10, 25-11,
B-3 (also see NATO SOFA)
SOFA Claims .................10-3
Solatia Payments…………10-3, 10-5, 10-9
Soldier’s Rules…....13-8 thru 13-9, 18-14 thru
18-15, 18-16
Soldier Readiness Processing Team……19-2
Soldier Readiness Program…..19-1, 19-2
Soldiers’ & Sailors Civil Relief Act.....ch19
SOMA (UN Status of Mission
Agreement)…….25-10
SOUTHCOM……2-3, 2-4, 22-14
SOUTHCOM’s Human Rights Policy ....13-7
Space Command............. 2-4
Special Forces Exception...... 23-7, 15-3
Special Forces or Ranger training........15-1 thru
15-2
Special Legal Assistance Attorneys (SLAA)
.................................. D-2
SPECIAL OPERATIONS...ch 15
Special Operations Judge Advocate 15-2
Special Security Force ..... E-4
Spying………….17-4, 17-5, 17-9, 18-18
SROE………(see ROE & JCS SROE)
SRP .............. 19-1 thru 19 -9
SRPT ............. 19-2 thru 19-3
Stafford Act....... 21-1, 21-2, 21-3, 21-4, 21-6,
21-7, 21-8
Standard Form 44 (SF44).....11-1, 11-3, 11-6,
11-12 thru 11-15
standardization agreements…….3-5
STARC....................... App D
State Department Embassy Positions......E-3
status of forces agreements……(see SOFA)
Status/Foreign Criminal Jurisdiction..….ch 3, 15-
3, 15-8, 17-3, 25-10 (see also criminal
jurisdiction)
Straggling ....................17-10
Subordinate Compelling Surrender.......17-8
Supremacy Clause .......13-11
Survivor Assistance Officer......19-8, 19-9
T
Table of Organization and Equipment......D-2
TARC ......................D-1, D-7
target folder ...................15-4
Targeting .............. 15-4, 18-3
Temporary Refuge.…(see refuge)
Tennessee……….Home of the VOLs
terrorism………….2-2, 4-4, 8-13, 10-2, 15-1, 22-
1, 22-2, 22-8, 22-18, 22-23 thru 22-28, E-3
The International Medical Corps.....E-9
Time of war…………..17-5, 17-8, 17-10
Time of War as an Aggravating Factor......17-5
Time of War, Jurisdiction, and Statutes of
Limitation ...................17-5
TOE .................1-3, D-2, D-4
10
TOP SECRET clearances.....14-5
tort-claim processing…….10-1 thru 10-3, 10-7,
10-11, 10-13, 10-14
Total Army...................... D-1
TRANSFER OF JURISDICTION…...17-10
Training OPLAW....14-4
Trial in the Host Nation……17-3
Trial Observer Report and Trial Observer Report
on Appeal ................... H-1
U
U.N. Charter......4-1, 4-2, 4-3, 4-4, 4-5, 4-6, 6-
14, 6-22, 13-7 thru 13-8, 23-6, 18-9, ch 25,
26-2, App I
U.S. Diplomatic Mission.....24-10
UN Claims…….6-23
UN Development Program.....E-8
UN disaster relief…………23-1, 23-6
UN organizations.....Ch 25, App E.
UN Participation Act.....23-6, 23-7
Unauthorized commitments.......11-10
UNCLOS III..................... C-1
UNIFIED / SPECIFIED COMMAND SYSTEM
.................................. 2-3
Unified Command....2-3, 3-1, 22-18
UNITAF .........................13-6
United Nations.….3-9, 3-17 thru 3-26, 5-6, 5-7,
5-11, 6-3, 6-8, 6-10, ch 4, 13-7 thru 13-8, 18-
5, 18-7, 18-10, ch 24, ch 25, App E
United Nations’ mission statement.......13-7, App
I
United Nations Children’s' Fund.....App E
United Nations Convention of the Law of the Sea
................. (see UNCLOS)
United Nations Environmental Modification
Convention (see ENMOD Convention)
UNITED NATIONS HIGH COMMISSIONER FOR
REFUGEES………18-14, E-7
United Nations Resolution 794....13-6
United Nations Resolutions 940.....4-2, 13-16,
13-19, 18-9
United Nations Resolution 1031....4-3, 13-16, 25-
9, 25-10
United nations Resolution 1088………25-9
UNITED STATES AID OFFICE FOR FOREIGN
DISASTER ASSISTANCE.......E-6
United States Government agencies......App E
UNITED STATES INFORMATION AGENCY
.................................. E-6
United States Special Operations Command
.................................15-1
United States v. Noriega.....13-2
United States v. Nicaragua....13-7, 23-6
United States v. Rockwood.....20-1
Universal Declaration of Human Rights.....13-4
thru 13-10, ch 20
Universal Declaration (customary Law)...13-8
thru 13-9
unlawful combatants....18-3, 18-4, 18-7, 18-9,
unlawful importation, transfer, and sale of a
dangerous firearm ......17-8
unnecessary suffering.......ch 18
Unspecified Minor Construction .....12-4, 12-7
US Agency for International Development
(see Agency for International Development)
US Army Claims Service ...ch 10, 14-10, 21-6
US Army Civil Affairs & Psychological Operations
Command…..15-2
US military strategy ...2-1, 2-2
US National Security Strategy....2-1, 2-2
US Special Operations Command....2-4
US Strategic Command.....2-4
US Transportation Command.....2-4
USACOM........................ 2-3
USAR JAGC: Organization and Mission
.............................. App D
USCENTCOM………….2-4, 17-12, 17-13
Use of Deadly Force......(see deadly force)
USEUCOM ..................... 2-4
USPACOM ........... 2-4, 23-11
USSOCOM.... 2-4, 15-1, 15-3
USSOUTHCOM.....2-4 (see SOUTHCOM)
V
Vehicle Registration/Insurance/Drivers' Licenses
(as SOFA matter).....3-12
Vienna Convention on Diplomatic Relations
1961………………..3-9, 23-11, 25-8
Visiting Forces Act……….3-10
W
war crimes.............. .....ch 18
War Powers Resolution........4-1, 4-5 thru 4-7
War Trophies……….17-7, 17-12, 18-12, 18-13
Wartime Contract Law……11-1, 11-2
Wartime Funding ............11-2
weapons (LOW considerations).....ch 18
weapons confiscation........ ch 13 (also see cash
for weapons program)
Will and Power of Attorney preparation...ch 19

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