Commanderâ€™s Legal Guidance for
Figure 2-1. MAJ Jon B. Tipton, provost marshal, Joint Task Force Haiti, speaks with residents of Ancien Airport Militaire IDPs camp about their safety concerns. One issue is lighting at night around the camp. Tipton wants to ensure lights are installed in the hope that crimes such as sexual assault begin to decline. (U.S. Army photo/Sgt. 1st Class Debra Thompson. Debra Thompson, "11th Public Affairs Detachment," Defense Video and Imagery Distribution System, http://www.dvidshub.net/image/263019/ancien-airport-militaire-idp-camp#.T74QKe3v_iA. Accessed May 24, 2012.)
In preparation, the JA should be consulted and included in discussions on such matters as the location of camps should the military need to establish shelter;9 the existence of any status of forces agreements (SOFAs),10 executive orders,11 U.S. domestic laws that may apply;12 and international and host nation laws.13
Rules of Engagement
As military forces enter the host nation, it is essential that all members understand the rules of engagement (ROE). ROE establish the procedures "for the applicability and use of deadly force to protect" military forces and maintain order and security in the camps.14 Generally, "internal security ROE are based on civil disturbance and peacetime guard force limitations on the use of force;"15 however, the ROE will be established as dictated by the operation and circumstances. Protection of the force is always a high priority, and it is U.S. policy to not infringe on a commander's inherent authority and obligation to use all necessary means available and to take all appropriate action in self-defense of the unit or other U.S. forces.16 If multinational forces fall under U.S. authority, the commander must ensure they understand and interpret the ROE in the same way.17
Commander's Authority over Misconduct in the Camp
"Inherent authority of commanders can be used to maintain law and order to safeguard the health and welfare of the camp."18 Commanders may remove those who commit minor offenses as an administrative and not a punitive measure.19 Depending on the alleged perpetrator and location of the camp, major offenses could be handled as follows: If someone within a country, not covered by a SOFA, commits a crime, they are in "violation of the domestic law of the host nation."20 U.S. Joint Forces Command's Tactics, Techniques, and Procedures (TTP) for Migrant Camp Operations specifically states that the "[i]nvestigation of such offense would probably be conducted by the accompanying Service investigative activity tasked to support the JTF [joint task force]/camps, but referral and prosecution would have to be by host nation authorities."21
Establishing Camp Rules
Maintaining good order and discipline in the camps can be supported by the posting of "literal" rules.22 The rules posted must be "general in nature," clearly indicating that any violation of the rules will result in punishment. The following is a suggested list of rules for use at a camp:23
Relations with Interagency/Relief Agencies
Private organization and interagency relationships play a vital role in providing for refugees and IDPs.24 However, because of legal considerations, commanders must be aware of the type of relationships fostered, type of and amount of aid rendered, and appearances.25 Military personnel may "not officially support, endorse, or participate in fundraising and/or solicitation efforts for the benefit" of refugees and/or IDPs.26 Military personnel may provide guidance to groups and/or organizations as to what type of donation would best meet the needs of the camps.
Nongovernmental organizations and their personnel and staff fall under the legal protection of the nation from which they originate. Commanders should be familiar with the organizations operating in their AO, not only in terms of agenda, nationality, and resources, but also the nature of their relationship with the military and their desire to cooperate with the forces.
Commanders must consider fiscal law constraints in planning for refugee/IDP camp operations. Congress significantly limits Department of Defense (DOD) authority and funding to conduct such humanitarian and civic assistance operations. The State Department and the U.S. Agency for International Development (USAID) are primarily responsible for these activities. Failure to consider fiscal constraints and potential resolutions during planning may lead to mission pause or failure.
The Constitution grants Congress the "power of the purse"27 through appropriation and authorization acts. Appropriation acts, which may be annual or supplemental in nature, give the Executive Department funds for a particular purpose, for obligation within a certain time frame, and in a particular amount.28 Authorization acts, whether annual (e.g., National Defense Authorization Act)29 or found in permanent law (e.g., the U.S. Code),30 provide the Executive Branch authority to expend funds consistent with the language of the authorization and appropriation. Simply put, the authorization and appropriation must be read together to determine when an Executive Branch expenditure of funds is proper. Through these mechanisms, Congress exercises control over Executive Branch activities.
Under the statutory framework established by Congress, the Department of State is primarily responsible for foreign assistance, to include security assistance, development assistance, and humanitarian assistance.31 Through its deployment DOD personnel will have authority to provide security and protect refugees/IDPs consistent with the mission. Absent a specific statutory authorization or appropriation, however, DOD personnel will not be able to take the next critical step - the provision of much needed humanitarian assistance, whether medical, food, or basic sanitation and facilities improvement.32 If DOD is to provide foreign assistance, to include humanitarian assistance to refugees and IDPs, commanders must have funds expressly authorized and appropriated for that purpose.
Congress has given DOD some limited, permanent authorities and an appropriation to provide humanitarian assistance. Foremost among these is the Overseas, Humanitarian, Disaster, and Civic Aid (OHDACA) appropriation.33 OHDACA funds generally may be used to provide limited humanitarian assistance, to include medical care, transportation costs, food, and rudimentary construction.34 These funds are administered by the Defense Security Cooperation Agency (DSCA) through the combatant commands.35 Further, while limited to an appropriated amount of approximately $100 to $110 million annually,36 procedures exist to significantly expand the amount of funds available in response to a crisis. Beyond these limited OHDACA funds, various other authorities may be available under the Foreign Assistance Act.37
If the above permanent authorities and appropriation are inadequate to the humanitarian task of providing for IDPs and refugees, the commander has two remaining options. First, and ideally a prerequisite part of the planning process, the commander can coordinate with the State Department and USAID to determine their funds available to meet the humanitarian need. As the lead U.S. agencies for foreign assistance, State and USAID possess a wide variety of appropriations and authorizations to meet the humanitarian needs of refugees and IDPs.38
A second option is to request a mission-specific appropriation or authority through the combatant command, the DOD, the president, to the Congress. Under the right circumstances, such as the Commander's Emergency Response Fund (CERP), Congress may specifically authorize DOD to utilize operations and maintenance funds or appropriate separate funds to provide humanitarian assistance.39 In either event, advanced planning and some degree of lead time are required.
When conducting foreign assistance of any type, to include refugee or IDP camp humanitarian assistance, fiscal law plays a major role. Given the general rule that the DOD may only provide foreign assistance pursuant to a specific authorization or appropriation, planning becomes paramount. Commanders and staffs must determine in coordination with the combatant command and the DSCA whether OHDACA or excess defense articles are available. If not, funds for humanitarian assistance activities must be obtained from the State Department or via a congressional authorization or appropriation specific to the operation. Ultimately, if none of the above options prove viable, fiscal law, as a constitutional expression of congressional intent, may significantly limit the scope of humanitarian assistance available to refugees and IDPs.
Legal coordination and counsel are indispensable in stability and FHA operations. In handling civilians, commanders need to be cognizant of the distinct categories of civilians on the battlefield and/or AO and especially cautious during phases of transitions from combat operations to stability operations. Due to the scarcity of specific guidance for the military in the realm of refugee or IDP camp operations, commanders can be innovative in their approaches with the aim to build relationships with the population, host nation, and aid organizations. A commander's approach can ultimately further the mission in the face of many challenges or hinder the mission by opening security breaches and encouraging insurgent or other criminal activity.
Figure 2-2. U.S. troops assisting at an IDP camp.
1. This article will not go into detail as to the legal definitions of civilians on the battlefield or AO. See infra., note 3. Generally, refugees and IDPs are also known as dislocated civilians (DCs) in Army doctrine. DCs "are persons that have been removed from their home to protect them from combat or to relocate them to safety." U.S. Department of Army, FM 3-19.4, Military Police Leaders' Handbook (2 August 2002). See also U.S. Department of Army, FM 3-05.40, Civil Affairs Operations (29 September 2006), and "The United Nations Convention Relating to the Status of Refugees," July 28, 1951, United Nations Treaty Series 1 (1951), and FM 3-19.4 for additional categories and definitions of persons that the military may encounter; they may be refugees, evacuees, stateless persons, or war victims. DCs are provided sustenance, safety, and humanitarian assistance. They are kept separate from enemy prisoners of war (EPWs) and civilian internees (CIs). DCs are controlled to prevent interference with military operations. Determining the precise category to which an individual belongs is important in determining the rights he or she is entitled to internationally and in accordance with U.S. custom and law. The JA is essential in assisting the command in considering legal and political concerns and categorizing and determining the proper treatment and rights afforded to civilians on the battlefield or AO.
2. U.S. Department of Army, FM 3-07, Stability Operations (6 October 2008).
3. Joint Chiefs of Staff, Joint Publication (JP) 3-07.6, Joint Tactics, Techniques, and Procedures for Foreign Humanitarian Assistance (15 August 2001). (Discusses the various types of missions that the military may take on under FHA, to include relief missions, DC support missions, and security missions. JP 3-07.6 includes in its categorization of DCs, refugees, evacuees, migrants, stateless persons, and IDPs. Clarification as to the "person" is key in operations legally and politically and should be addressed with the JA.) Ibid., 1-4 to 1-5. It is important to keep in mind that all FHA operations are led by the USAID with the assistance of DOD as necessary. Ibid., viii, I-1.
4. As stated in Department of Defense Directive (DODD) 3000.5, Military Support for Stability, Security, Transition, and Reconstruction (SSTR) Operations (28 November 2005), stability operations are a "core military mission on par with combat operations." See also, FM 3-19.4, F-1, which explains that the military interaction with the population, in particular with refugees and IDPs, can have a direct impact on mission success as "[i]nsurgent organizations often emerge in unstable regions" with the goal of recruiting them "often through threat and intimidation." Military operations should be "designed to deny support and assistance to insurgents by controlling the movement of people and goods and restricting access to key facilities."
5. FM 3-07, 3-10.
6. FM 3-19.4, F-1.
7. The goal of foreign humanitarian missions to seek and to establish long-term durable solutions. According to the Handbook: Emergencies, The United Nations High Commissioner on Refugees, 1999, "Clear and consistent policies from the beginning will have an important long-term effect. Similarly, the immediate response of the international community to a major influx of refugees must take into account the ultimate aim of promoting a durable solution to the problem. This requires that the response both encourages the self-reliance of the refugees and reduces prolonged dependency on outside relief, and that it does nothing to prevent the promotion of a long-term solution as soon as possible." See also Handbook: Emergencies, 8, and FM 3-07, 3-10.
8. FM 3-19.4, F-1.
9. U.S. Joint Forces Command, Tactics, Techniques, and Procedures (TTP) for Migrant Camp Operations (15 April 1995), F2. (Discussions should include whether there are any existing treaties, constraints, or concerns regarding the region in which a camp may be established. The JA should also ensure whether there are any memorandums of understanding or executive agreements that may need to be established and to ensure proper coordination with and authorization from the Department of State and all other authorities. In addition, location of the camp can play an important role; the camp should be located a safe distance away from the borders to avoid turmoil, violence, and threats.) See also Handbook: Emergencies, 19.
10. TTP, F2. (Status of forces agreements [SOFA] between the United States and the host nation establish the status of U.S. forces in the host nation. A SOFA addresses issues regarding jurisdiction over the forces and U.S. nationals who may be accused of criminal misconduct.) The United States generally wants to retain jurisdiction over military members and not hand over jurisdiction to the host nation government or international criminal courts. All SOFA negotiations must be coordinated through the Department of State.
11. TTP, F2. (Research should be conducted to determine if any executive orders are in place that may be "relevant or applicable to the situation." The TTP provides the following pertinent example: "Executive Order (EO) 12324, as modified by EO and presidential proclamations, regulates ‘High Seas Interdiction of Illegal Aliens.'")
12. Ibid., F3. (The command should ensure that applicable personnel are thoroughly briefed and understand current policy and rules regarding immigration and naturalization, specifically focusing on granting asylum to those individuals who may claim refugee status and request asylum.)
13. Ibid. (Sources of international law or authority such as "the U.N. Charter, the International Declaration of Human Rights, and the Geneva Conventions regarding the Protection of Civilians" may provide useful in establishing camps. Further, the laws of the nations from where IDPs are traveling is important to know in terms of the nation to nation treaties, agreements, or laws that may exist, especially in terms of the nationality of children born in the host nation.)
14. Ibid., F5.
16. JP 3-07.6, A-6.
17. Ibid., IV-15.
18. TTP, F5.
22. Ibid., G1.
23. Rules taken from TTP, G1.
24. JP 3-07.6, II-1. (Discusses the important role of nongovernmental and international organizations in FHA operations. "Interagency coordination is essential for effective policy development and implementation. [Such] coordination is often highly complex.")
25. TTP, F6.
26. Ibid. See also U.S. DOD Regulation, 5500.7-R, Joint Ethics Regulation (JER), (including changes 1-7) (17 November 2011).
27. U.S. Constitution, Article I, Sec. 9, Clause 7 ("No money shall be drawn from the Treasury, but in Consequence of Appropriations made by law . . . ."); U.S. Constitution, Article IV, Sec. 3, Clause 2 ("The Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . . "); United States v. MacCollom, 426 U.S. 317, 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.").
28. The general rule is that appropriated funds must be expended for a proper statutory purpose (31 U.S.C. sec. 1301(a)--the "purpose" statute), within the amount specified in the appropriation, and within the fiscal year or time constraints contained in the appropriation. Violation of any of these three tenants-purpose, time, or amount-may result in a violation of the Anti-Deficiency Act, a criminal statute. 31 U.S.C. sections 1341(a)(1)(A), 1341(a)(1)(B), 1342, and 1517(a). For an example of an appropriation act, see Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, 125 STAT. 786, December 23, 2011 (making appropriations for fiscal year 2012 for the DOD, military construction, and the Department of Veterans Affairs, among other agencies).
29. For example, see National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 STAT. 1298, Dec. 31, 2011 (providing annual authorizations for DOD to expend funds appropriated to the DOD in the Consolidated Appropriations Act, 2012).
30. Permanent DOD authorizations to expend funds are generally found in Title 10 of the U.S. Code; in contrast, permanent authorizations for the State Department and USAID to expend funds are generally found in Title 22 of the U.S. Code.
31. Compare Title 22 U.S.C. (State Department and foreign affairs), with Title 10 (DOD, the Services, and defense). See generally Defense Security Cooperation Agency, Security Assistance Management Manual, chapter 1, available at http://www.dsca.mil/samm/Default.htm.
32. The Honorable Bill Alexander, 63 Comp. Gen. 422, B-213137 (June 22, 1984). This Comptroller General opinion resulted from military operations in Honduras. It solidified the general rule that DOD only provides foreign assistance when specifically authorized by Congress and provided funds for that specific purpose. In other words, DOD may not conduct foreign assistance using operations and maintenance funds appropriated to the DOD for the conduct of the mission. Congress provides these operation and maintenance funds to support DOD and they may not be used for the primary benefit of the host nation.
33. For example, see Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, 125 STAT. 786, 794 December 23, 2011 (appropriating $107 million in OHDACA funds).
34. OHDACA funds must be expended consistent with 10 U.S.C. sections 401, 402, 404, 407, 2557, 2561.
35. Defense Institute of Security Assistance Management (DISAM), Greenbook, Chapter 1, available at http://www.disam.dsca.mil/pubs/DR/greenbook.htm. The DSCA is the focal point for DOD security cooperation efforts, to include DOD humanitarian assistance. Given that security cooperation is primarily a State Department responsibility, DSCA closely coordinates with the State Department, other governmental agencies, and Congress. If in planning you determine a need to provide humanitarian assistance but cannot determine the funding source, check with the combatant command and ultimately DSCA. Through these avenues, a planner will be able to maximize potential available funds for humanitarian assistance. The Defense Security Cooperation website, available at http://www.dsca.mil/ (provides a wealth of information on DOD humanitarian assistance programs, to include culture or religion-neutral MRE packets available for distribution).
36. For example, see Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, 125 STAT. 786, 794 Dec. 23, 2011.
37. DISAM, Greenbook, Chapter 1, available at http://www.disam.dsca.mil/pubs/DR/greenbook.htm.
38. Consolidated Appropriations Act, 2012, Division I, Pub. L. No. 112-74, 125 STAT. 786, 1164--1271, Dec. 23, 2011 (the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2012).
39. For a description of the authorized uses of CERP funds, see Money as a Weapon System-Iraq and Money as a Weapon System-Afghanistan. These funds authorize commanders to use operations and maintenance funds (up to a congressionally specified limit) to provide for the urgent humanitarian relief and reconstruction requirements of the people of Iraq and Afghanistan respectively. For example, in Fiscal Year 2012, Congress authorized the use $400 million in operations and maintenance funds for the CERP program in Afghanistan. Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, 125 STAT. 786, 849, Dec. 23, 2011.