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Legal Challenges Faced by Militaries in Undertaking Disaster Relief Operations

Lieutenant Colonel Christopher B. Walters, USMC

Deputy Staff Judge Advocate

United States Pacific Command

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US Authorities and Restrictions

References:• Dept of Defense Directive (DODD) 5100.46, Foreign Disaster Relief and

Emergency Response (FDR/EDR)• Sections 127(a), 166(a), 401, 402, 404, 2557, 2561, and 2608 of title 10, US

Code• Executive Order 12966, Foreign Disaster Assistance, July 14, 1995• Dept of Defense Instruction 2001.21, Foreign Consequence Management,

March 10, 2006• Executive Order 12163, Administration of Foreign Assistance and Related

Functions, September 29, 1979, as amended• Section 2292(b) of title 22, US Code• Chapter 23 of Volume 12, DOD Financial Management Regulations,

September 2007• Part 061.3 of Volume 2, US Dept of State Foreign Affairs Manual, Emergency

Relief, September 20, 1984

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US Department of Defense (DOD) Policy

Upon a request for assistance by the affected state, it is DOD policy

that:• DOD shall conduct FDR efforts in coordination with and in support

of the US Agency for International Development (USAID), which is the lead Federal agency, under the Dept of State (DOS), for FDR.

DOD components shall support US FDR efforts when:• directed by the President; or

• when approved by DOD based on a request for support from the DOS, USAID, or other Federal department or agency following a disaster declaration by the US Chief of Mission in the affected country; or

• to save human lives in emergency situations.

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US Military Legal Challenges

• US response predicated on affected state requesting support, consenting to US response and granting required access.

• Diplomatic clearances and over-flight rights must be approved.

• Prior to obtaining necessary US domestic approvals for a military Humanitarian Assistance/Disaster Relief (HA/DR) response, US military forces may pre-position forces and assets accordingly.

• “Immediate Response Authorities” allow US military forces to immediately respond to save lives, prevent suffering, and to mitigate great property damage.

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US Military Legal Challenges (continued)

• Strict domestic fiscal law requirements and restrictions exist.

• The US military acts in support of the Office of Foreign Disaster Assistance (OFDA), USAID, and DOS subject to specific mission assignments with reimbursement provisions.

• The US military requires a specific delegation of lift authority to transport non-DoD personnel and assets, including other US gov agencies, non-US gov personnel and NGOs, on either a reimbursable or non-reimbursable basis.

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US Military Legal Challenges (continued)

• Implementing appropriate Rules of Engagement / Rules for the Use of Force

• Identifying any restrictions on the wearing of uniforms and carriage of weapons

• Identifying and obtaining privileges and immunities, or status protections, e.g. Status of Forces Agreements (SOFAs) or exchange of Diplomatic Notes (DIPNOTES) for Administrative &Technical (A&T) like status. Other matters for agreement with the affected state include, but are not limited to, obtaining free movement, ability to interact with the local economy, exemption from taxes and duties, and claims and other dispute mechanisms.

• Identifying whether there are any military to military logistics support agreements already in place, e.g. Acquisition Cross Servicing Agreements (ACSA) or Military Logistics Support Agreements (MLSA). If so, then all military to military support must be in accordance with those existing agreements.

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Example #1

Tropical Cyclone Nargis in Burma (Myanmar)

• US military response from May-June 2008

• Supported by more than 176 US military airlifts to Yangon, delivering US, NGO and UN donations

• US provided US$41 million in relief aid through USAID and DOD

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Example #2

Tropical Cyclone Sidr in Bangladesh

• US military response from Nov-Dec 2007

• US military response included the USS Tarawa and then the USS Kearsage providing extensive helicopter support along with the Bangladesh military in dispatching relief commodities to remote areas.

• US provided approximately US$20 million in funding and commodities, including US$15 million in food aid.