Chapter 14

Foreign Humanitarian Assistance

I.     BACKGROUND AND FRAMEWORK

1. 1. Foreign Humanitarian Assistance (FHA) is an umbrella term comprising all types of humanitarian assistance operations the DoD has the authority to conduct, which includes Foreign Disaster Relief (FDR).  Note the terminology used in this chapter will align to the extent possible with Joint Publication (JP) 3-29.^[1]  FHA consists of all DoD activities conducted outside the U.S. and its territories to directly relieve or reduce human suffering, disease, hunger, or that assist in preparing for future disasters.  DoD-authorized FHA activities range from steady-state programs in support of a respective Geographic Combatant Command (CCMD) theater strategy, certain limited FHA activities conducted during contingency operations, and large-scale FDR operations to alleviate suffering of foreign disaster victims.
      1. Interagency coordination.  FHA operations (including FDR operations) are conducted in coordination with the United States Agency for International Development (USAID) and the Department of State (DoS).  USAID is the lead U.S. Government agency that works to end extreme global poverty and enable resilient, democratic societies to realize their potential.  Formerly, USAID’s Office of U.S. Foreign Disaster Assistance (OFDA) was the lead federal coordinator for international disaster assistance. However, in 2020, the Bureau for Humanitarian Assistance (BHA) was established to streamline USAID humanitarian responses, bringing together the vast expertise and resources of the former OFDA and Food for Peace (FFP). BHA has replaced OFDA as the lead federal coordinator for international disaster assistance.[2]  DoD FDR operations are typically in response to a USAID/BHA request for DoD support.  Political and historical reticence to the DoD provision of FHA stems from the fear of confusing foreign citizens regarding the role of the U.S. military, the potential to put future U.S. civilian aid workers at greater risk due to the possible confusion of their role with that of the DoD, and the seemingly detached connection between FHA and DoD strategic objectives.  However, there are certain statutory authorizations and appropriations, as will be discussed below, that allow for a unique DoD supporting role.  Even where the specific statute authorizing the DoD activity does not obligate concurrence or coordination with DoS, DoD regulation and policy will require it.  The only notable exception is the “72-hour life and limb” authority where an on-site commander at scene determines prompt action to save human lives is required (see Section II, C of this chapter).
      2. Scope of this chapter.  This chapter focuses disproportionately on FDR under 10 U.S.C. § 404, 10 U.S.C. §2561, and DoD Directive 5100.46, instead of smaller, steady-state CCMD FHA programs.  Though a subset of overall FHA activities, the scale, and complexity of FDR typically makes these operations significantly larger than DoD’s steady-state FHA activities.  As such, FDR operations tend to contain more operational law lessons learned.  Steady-state FHA projects by contrast, are likely to be theater specific and more difficult to extrapolate from.  FDR operations respond to a calamitous situation or event that occurs naturally or through human activities, which threatens to cause human suffering on a scale such that the Host Nation (HN) cannot meet the emergency relief need of their populace.  USAID categorizes disasters as falling into one of three categories:  rapid-onset disaster, such as a tsunami, earthquake, or flood; slow-onset disaster, such as famine, drought, or disease outbreak; complex emergency, which will involve a conflict element (e.g., Syria, Somalia). The DoD is most often called upon to respond to rapid-onset disasters where the HN infrastructure has been overwhelmed or destroyed, such that civilian aid agencies require unique military capabilities to deliver immediate relief.
      3. DoD FHA Program Goals.  When interagency coordination requirements are satisfied, and to the extent permitted by law, DoD FHA programs and FDR operations will promote the following objectives globally:^[3]

a.    Alleviate suffering and save lives;

b.    Improve the basic living conditions of the civilian populace in a country or region that is strategically important to the U.S.;

c.    Enhance the legitimacy of the HN government by improving their capacity to provide services to the populace;

d.    Promote coalition-building and with foreign military and civilian counterparts; and,

e.    Contribute to HN military and civilian institutions’ positive perceptions of the U.S. Government and DoD. The most effective steady-state FHA projects include knowledge or skills transfer, thus building local capacity rather than merely performing an action for the HN or donating materials.

1. 1. 4. Role of Judge Advocates.  The time available for planning FDR operations can be short, even as little as a few days.  Often these operations will be conducted in countries where US military forces have had little, if any, presence previously.  As emphasized in JP 3-29, many aspects of FHA operations require legal scrutiny.  Judge Advocates are expected to assist in analyzing and preparing Status of Forces Agreements (SOFA), Rules of Engagement (ROE), fiscal law guidance, plans and orders, and especially any agreements between U.S. forces, multinational forces, and the affected HN.  In addition to planning, Judge Advocates will be expected to provide briefings on legal authorities, existing agreements, and international law considerations specific to the affected HN.^[4]  Judge Advocates should also ensure that U.S. military forces understand the scope of the HA mission tasked to the respective CCMD and any other specific guidance from the CCMD.
   2. DoD Roles and Responsibilities in FHA.  The U.S. military is not an instrument of first resort in responding to humanitarian crises, but in certain severe operations, it will be called upon to support civilian relief agencies as part of overall USG efforts.  The percentage of FDR crises where DoD assistance is requested is historically about 10%.  Military assets can provide an essential contribution to humanitarian actions based upon advantages in terms of speed, specialization, and efficiency especially in the early phase of response.  Within DoD, the Office of the Secretary of Defense (OSD) coordinates FHA policy and funding.  The Under Secretary of Defense for Policy (USD(P)) develops military policy for FHA operations.  Within USD(P), Assistant Secretary of Defense for Special Operations/Low Intensity Conflict (ASD (SO/LIC)) is responsible for policy development and oversight for DoD’s humanitarian activities.  Defense Security Cooperation Agency (DSCA) provides programmatic oversight of the OHDACA appropriation and policy guidance on other issues related to funding.
   3. FHA Authorities.^[5]  Many DoD authorized FHA activities are funded by Overseas Humanitarian, Disaster and Civic Aid (OHDACA), which is the fiscal cornerstone of 10 U.S.C. §§ 401-2, 404, 407, 2561, 2557.  All OHDACA-funded projects, other than FDR operations (which take shape rapidly in response to sudden-onset disaster) and minimal cost, steady state projects, must go through various levels of staffing, and receive concurrence from several stakeholders, including DSCA.
      1. Introduction.  Each CCMD will execute its own steady-state humanitarian assistance projects throughout the year.  DoD does not allocate the entire annual OHDACA appropriation between the CCMDs.  During the budget process, DoD will withhold an amount of OHDACA funding to ensure DoD has sufficient financial resources in order to initiate a response to an unanticipated disaster.^[6]  The amount set aside for FDR directly impacts the amount of OHDACA available for CCMD steady state FHA programs.  Each CCMD HA Program Office submits an OHDACA allocation plan in Overseas Humanitarian Assistance Shared Information System (OHASIS) each year; any deviations from this plan or out-of-cycle projects during the year must also be submitted via OHASIS.  Each steady state HA project is vetted and coordinated through other USG agencies, namely USAID, DSCA, and the HN U.S. Embassy to avoid duplication of USG efforts.  Further, all steady state projects are reviewed (minimum cost projects need only be reviewed by the CCMD HA manager; all other projects require DSCA and OSD review) and ensure linkage to the DoD strategic goals, and related USG program requirements.^[7]
      2. FHA distinct from security assistance.  Security assistance is a group of programs by which the USG provides defense articles, military training, and other defense-related services to further national policies and objectives.  Though security assistance might lay the groundwork for access and a favorable environment for FHA, the authorities and policies underlying each are distinct.  FHA activities are designed to save lives, alleviate human suffering, and reduce the impact of disasters and humanitarian crises.  The law surrounding both types of programs is complex, consisting of statutes, annual appropriations, policies, regulations, and directives.  Judge Advocates must scrupulously delineate and avoid intermingling of the authorities for FHA and security assistance.
      3. OHDACA funded FHA activities.^[8]
         1. 10 U.S.C. § 402 – Transportation of humanitarian relief supplies to foreign countries.  Also sometimes referred to as “Space-A transport” or the “Denton Humanitarian Assistance Program.”  This allows DoD to transport goods provided by non-governmental organizations (NGO), without charge, for humanitarian purposes.  Transport is permitted only on a space available basis.  In order to use the program, the following factors must be considered:
            1.  The transport is consistent with U.S. foreign policy;
            2.  The supplies are in useable condition and suitable for humanitarian purposes;
            3.  A legitimate humanitarian need exists;
            4.  The supplies will indeed be used for humanitarian purposes; and,
            5.  Adequate arrangements have been made for the distribution and use of supplies in the HN. 

Limitations are that the humanitarian assistance may not benefit military or paramilitary personnel or combatants, and this authority cannot be used to transport USG purchased commodities.

1. 3. 3. 2. 10 U.S.C. § 404 – FDR.  See section II of this chapter for more in-depth FDR overview. ^[9]
         3. 10 U.S.C. § 407 – Humanitarian Demining Assistance (HMA) includes activities related to the furnishing of education, training, and technical assistance with respect to detection, clearance, and stockpile management of land mines and other explosive remnants of war (ERW).^[10]  ERW includes landmines, unexploded ordnance and abandoned ammunition storage and cache sites.  By law, DoD personnel may not engage in the physical detection, lifting or destroying of landmines or other ERW (unless the member does so for the concurrent purpose of supporting U.S. military operations).
         4. 10 U.S.C. § 2561 – Humanitarian Assistance (HA).  Funds explicitly appropriated to DoD for humanitarian assistance must be expended by DoD for humanitarian purposes.  The DoD relies upon this authority to conduct the “funded transport program” to hire commercial shippers to transport humanitarian relief supplies.^[11]  This authority is more flexible than the Space-A or Denton Program and Humanitarian and Civic Assistance (HCA) (10 U.S.C. § 401), and as such it constitutes the vast majority OHDACA-funded FHA activities carried out by DoD.  It is the 10 U.S.C. § 2561(a)(l) language “other humanitarian purposes worldwide” which allows DoD and DSCA to conduct a wide variety of humanitarian programs not directly related to a military operation or exercise.  These FHA activities can even be implemented without using U.S. military personnel, through contracts with private entities.  DoD HA efforts under 10 U.S.C. § 2561 do not have to be intended to promote the operational skills of U.S. participants and USG purchased commodities can be transported.  Privately donated cargo may also be shipped.  Limitations are that the humanitarian assistance may not be for the primary benefit of military or paramilitary personnel or combatants, and the activity must have a humanitarian nexus (e.g., food, water, shelter, and health/medicine).  DSCA has approved projects under this authority such as refurbishment of medical facilities, construction of schools, water-well drilling, equipping a disaster relief warehouse and, training HN personnel on disaster relief/emergency response training.
         5. 10 U.S.C. § 2557 – Excess property (EP) is that quantity of non-lethal property in possession of a DoD component that exceeds the quantity required or authorized for retention by that component.  EP donations typically include furniture, medical and school equipment and supplies, vehicles, tools, tents, and construction equipment.  There is a process whereby a DoD unit can declare material EP and it is transferred to the Defense Logistics Agency (DLA), who in turn stores EP in warehouses designed for that purpose.^[12]  DSCA maintains three different EP warehouses that obtain EP from DLA for the purpose of meeting requirements for CCMD nominated EP projects.  When EP items are identified as a need during an FHA operation, they are shipped from one of the DSCA warehouses and transferred to a DoS representative at the U.S. Embassy in the assisted country.  Under the statute, DoS is responsible for distribution to HN recipients.  The EP statute does not include the authority for DoD transport, however that authority may be provided in the context of FDR (10 U.S.C. § 404) or the DoD funded transport program (10 U.S.C. § 2561).^[13]
      4. Other DoD FHA Authorities.
         1. 10 U.S.C. § 401 – Humanitarian and Civic Assistance (HCA) in conjunction with ongoing military operations.  HCA is technically not a form of FHA, as the primary intent of an HCA project is to train DoD personnel.^[14]  HCA is justified in terms of mutual security and operational readiness through operations, exercises, and/or training deployments.  HCA projects are pre-planned and funded by O&M and approved by the Joint Staff.^[15]  Typically, these activities must be nominated by the CCMD pursuant to DoDI 2205.02, may not duplicate USAID efforts, must be approved by DoS, and coordinated through the HN.  Permissible activities are delineated by the statute, they include medical or surgical care; well drilling and construction of basic sanitation facilities; or rudimentary construction and repair of public facilities.  These projects must promote specific operational readiness skills of the members of the U.S. forces who participate.  An HCA project’s support for the economic and social interest of the HN are a secondary and unintended benefit.
         2. Commander’s Emergency Response Program (CERP).  CERP authority was published in § 1214 of the FY21 NDAA, which is reviewed annually by Congress.  The authority allowed commanders in Afghanistan to carry out small-scale projects designed to meet urgent needs and provide a direct and immediate benefit to the people of Afghanistan.  Note that CERP funds were specifically excluded from the authorities available in Operation Inherent Resolve, except for restricted use in Iraq (e.g., gratia payments for damage, injury, or death).  CERP funds were not appropriated to current operations in Iraq and Syria because of perceived overuse and failure to have a measurable impact in other areas of operation (e.g., Afghanistan).
         3. 10 U.S.C. § 166a – Combatant Commander’s Initiative Fund (CCIF).  CCIF provides independent statutory authority to conduct FHA as well as a funding source.  Pursuant to CJCSI 7401.01G, CJCS may provide funds to CCMD upon request, for, among other activities, humanitarian relief.  It must be coordinated with the relevant Chiefs of Mission to the extent practicable.  CCIF is intended for urgent and unanticipated humanitarian relief that conventional FHA cannot address in the required timeframe, particularly in a country where the armed forces are engaged in a contingency operation.  The authorized project categories for CCIF are rather broad (e.g., food, water, medical supplies, etc.); note though several improper uses of fund are outlined.  From a practical standpoint, however, CCIF is not typically used to support recurring FHA needs.
   4. Background on the Bureau for Humanitarian Assistance (BHA), formerly the Office of Foreign Disaster Assistance (OFDA).  Together, DoS and USAID are the principal agencies for providing FHA on behalf of USG.  USAID is an independent agency that provides economic, development, and disaster relief worldwide in support of the foreign policy goals of the USG.  Although a separate agency from DoS, USAID shares certain administrative functions with DoS, and reports to and receives overall foreign policy guidance from the Secretary of State (SECSTATE).  OFDA is aligned under the Democracy, Conflict, and Humanitarian Assistance Bureau of USAID.^[16]
      1. History of USG support to FDR operations.  The Foreign Assistance Act of 1961 separated out different aid programs and delineated military aid from non-military aid.  The Foreign Assistance Act also created USAID and granted it authority over international humanitarian assistance.  But at that time there still was not a specific entity with the authority and resources to respond quickly to a disaster in another country.  In March of 1963 President Kennedy was visiting Costa Rica and Mount Irazu erupted the same day creating a humanitarian crisis.  President Kennedy felt compelled to help Costa Rica, but there was no one office within the USG to call.  Later in July of 1963, a 6.9 magnitude earthquake struck Skopje, Yugoslavia destroying 80% of the city, leaving 120,000 people homeless and taking the lives of 1,100 people.  In both cases, USG assistance was ad hoc and showed severe internal coordination difficulties.  No single agency within USG had the resources or expertise to respond to these types of disasters.  In 1964 Congress authorized the President to appoint a coordinator for International Disaster Assistance to the USAID administrator, who then delegated the responsibility to the OFDA director with a mandate to save lives, alleviate human suffering, and reduce the social and economic impact of disasters.  OFDA (now BHA) has historically responded to an average of over 50 FDR crises per year.  For example, in fiscal year 2015, OFDA responded to 49 humanitarian emergencies in 45 countries, ranging from floods, to earthquakes, food insecurity situations, hurricanes, disease outbreaks, and other complex emergencies.  During 2015, OFDA had a record number of teams responding to five major crises simultaneously (Syria, South Sudan, Iraq, the West Africa Ebola outbreak, and the Nepal earthquake).
      2. On-scene management.  During a foreign disaster, BHA serves as the lead for organizing and managing the USG response.  BHA represents the U.S. to the other international country teams, relief organizations, and, in consultation with the Chief of Mission, the HN officials involved in the relief effort.  They will develop a strategy, serve as the reporting source for other USG entities, and provide USG funding to implementing partners.  Depending on the size and scale of the disaster, BHA personnel may be organized into a Disaster Assistance Response Team (DART).  It is the DART that will typically be liaising with DoD personnel, requesting DoD assets using the processes laid out further in this chapter.  BHA is also responsible for formulating the overall USG foreign disaster assistance policy in coordination with other departments and agencies.
      3. Special authorities.  BHA has several special authorities that allow greater flexibility in FDR operations.  One of these is notwithstanding authority under 22 USC 2292 which allows them provide assistance “notwithstanding any other provision of [22 USC 2292] or any other Act” which would otherwise prohibit or restrict aid to selected countries such as economic sanction.  Essentially this gives BHA the ability to request exemptions from government regulations in order to expedite assistance.  This authority is most frequently invoked in order to expedite procurement and when OFDA needs to travel to a restricted country.  BHA also has a special borrowing authority allowing them to obtain up to $50 million for disaster assistance from other USAID accounts.
      4. OFDA outreach and planning.  BHA has humanitarian assistance advisors to the military (HAA/M) at each major CCMD.  They are part of a larger USAID/BHA Military Liaison Team (MLT).  The MLT’s goal is to enable greater civil/military coordination upon the onset of a disaster, and to increase the situational awareness of potential responding units.  Moreover, the MLT is the primary office for communicating requests for DoD assistance originating from the civilian community.  The MLT also facilitates the Joint Humanitarian Operations Course (JHOC), a two-day course for U.S. military personnel on working with BHA during FDR operations.  In addition, BHA has regional offices in several countries across Africa, South America, and Asia.[17]  BHA also has stockpiles of relief commodities in Miami, Italy, UAE, and Malaysia.  Each U.S. Embassy has a designated Mission Disaster Relief Officer (MDRO) responsible for preparing and planning emergency action plans in the case of a disaster event in their respective country.  When an FDR operation does occur, this MDRO is one of the Embassy’s chief liaison officers to BHA and DoD.
   5. Implementing Partners.  BHA does not directly distribute aid to beneficiaries in an affected country but rather works through a multitude of implementing partners to facilitate the delivery of aid and focus the efforts of USG.  BHA and the international community work with local organizations and specialized NGOs because those groups know the country, are more experienced in working with beneficiaries, and because working through implementing partners builds local capacity.  This philosophy also works as a bulwark against taking on more responsibility than can be managed over the immediate relief period.  Similarly, military personnel supporting humanitarian activities will normally not be used in the direct delivery of assistance.
   6. HN and the Operating Environment (OE).  FDR missions are done only by request from the HN, or with their concurrence.  With very few exceptions,^[18] the HN always remains in control of the USG response and can limit its size, duration, or scope.  When the international community does respond to a disaster at the request of a HN, the U.S. will normally be part of an organized, professional humanitarian system consisting of many countries, donors, and organizations.
      1. Mentality of pull not push.  The provision of unwanted or unneeded commodities during an FDR crisis can burden a HN and the overall relief efforts.  Relief efforts are intended to provide the HN with what they need in order to alleviate suffering, but many HN problems will not be a USG responsibility and/or will exceed the specific DoD operational mandate.  This can run counter to DoD culture at times but Judge Advocates must help ensure DoD assistance falls within the scope of CCMD’s operational mandate and is validated USAID requirement.    DoD personnel must understand that BHA is coordinating with the HN to identify and prioritize life-saving tasks.  BHA vetting also ensures assistance to the HN complements, rather than duplicates, any other form of social or economic assistance provided to the country concerned by another agency of the USG.
      2. Nature of OE.  This will have an obvious impact on the conduct of any type of FHA operation, to include FDR.  There are three types of OEs when providing FHA:  permissive, uncertain, and hostile.  The type of OE will have a direct impact on the decision to conduct the operation, as well as many planning aspects.  Note that this FHA chapter is primarily focused on the provision of FDR in permissive environments, where the HN has control and has requested assistance.  However, note that for many of the DoD FHA authorities other than FDR, the nature of the OE has a greater impact.  This is particularly the case during contingency FHA operations, where FHA might be provided in a hostile or even non-permissive OE (i.e., Syria theater of Operation Inherent Resolve).^[19]
      3. HN involvement.  A sovereign country has the right to restrict access, or not request assistance, if they so choose.  There are applicable international guidelines, such as the ICRC Code of Conduct for Disaster Relief and the Oslo Guidelines, as will be explained more fully in Section III of this chapter.  These guidelines are not binding but they are generally accepted by the international aid community and can serve as the basis for discussions.  During a disaster HN governments will generally facilitate rapid access to disaster victims for international relief organizations, and if necessary, foreign governments.  An affected HN should also take steps to ensure relief supplies and equipment are brought into a country solely for the purpose of alleviating human suffering, not for commercial benefit.  Relief supplies should normally be allowed free and unrestricted passage and should not be subject to requirements certificates of origin or invoices, import and/or export licenses, importation taxation, or landing fees and/or port charges.  If foreign military assistance is requested the Oslo Guidelines also implore the HN to advise the necessary ministries and local governance structures to facilitate the arrival of foreign military forces by ensuring overflight and landing permission; waiver of commercial documentation; exemption from customs duties; waiver of visa requirements; free access to disaster zones; and, recognition of certificates and licenses.  They should also make arrangements for security of foreign military forces, as practicable.^[20]  In addition, transit states, those which require crossing of their national borders, territorial waters, and/or airspace, should be contacted as early as possible to coordinate the movement of any material or personnel necessary for the relief effort.^[21]  This responsibility is more critical if the transit state borders the affected HN.
2. Command and control in FDR and the role of DoD
   1. Procedure for Requesting U.S. FDR Assistance.  As noted above, whenever a disaster event occurs, the HN determines how it will best provide relief to the affected population including when it will accept assistance, if at all, and from whom that assistance will be accepted.  The USG will generally only provide FDR when the HN’s capacity to respond to the disaster has been overwhelmed, the HN requests assistance from the USG or otherwise indicates that it is willing accept U.S. assistance, and it is in the interest of the USG to respond.
      1. The HN’s decision to either request or indicate that it will accept U.S. disaster assistance is normally communicated through the U.S. Ambassador, or Chief of Mission, to that country.^[22]  In cases where there is no official U.S. diplomatic presence in the country, the Assistant Secretary of State for the appropriate region takes responsibility for the request.^[23]
      2. Once the HN indicates that it will accept U.S. disaster assistance, the Chief of Mission must validate the need for the U.S. to provide humanitarian assistance according to the following criteria laid out by USAID/BHA.
         1. The affected State must request, or otherwise indicate that it will accept, assistance from the U.S.,
         2. The disaster is beyond the ability of the affected State to respond, and,
         3. Responding is in the interests of the USG.^[24]
      3. Upon validation of the request for U.S. assistance, the Chief of Mission issues a Disaster Declaration Cable either to the (SECSTATE) or directly to USAID/BHA.  This Cable signals the intention of the USG to aid the HN.  The Cable will normally outline the nature and extent of the damages, HN relief efforts that are already underway, and the type of assistance that may be required from the U.S.^[25]  The Cable also gives the Chief of Mission the authority to request up to $50,000 for immediate disaster relief or rehabilitation from USAID/BHA.  These funds may not be used for long-term reconstruction or to purchase food.

Source:  OSD Joint Humanitarian Operations Course (JHOC).^[26]

1. 2. Procedure for Requesting DoD Assistance.  Once the Disaster Declaration cable is issued the USG begins providing disaster relief.  In practice BHA begins to mobilize and make other arrangements soon after the disaster event, as through experience they know when to anticipate a USG response.  USAID/BHA serves as the lead federal agency for the relief mission and thus directs all USG relief efforts.^[27]  The DoD only becomes involved in the mission upon request from either USAID/OFDA, DoS, or from the President.  Most FDR missions are accomplished without DoD involvement.^[28]  Normally, the request will come via an Executive Secretary memorandum (ExecSec memo) from the SECSTATE, as in the above flow chart.
      1. Overview of Authorities.  10 USC 404 provides a statutory basis for the President to direct DoD to respond to FDR situations.  In practice however, as noted above, DoD usually invokes 10 USC 2561 as the DoD authority to provide humanitarian assistance during an FDR, as this simplifies the reporting requirements.  EO 12966 delegates the DoD response authority to the SECDEF when he or she has concurrence of SECSTATE, or in emergency situations in order to save human lives where there is not sufficient time to seek the prior initial concurrence (i.e., the 72-hour life and limb rule).  DoD Directive 5100.46 provides the implementation framework for when and how DoD will respond.  Additional policy guidance is promulgated via the annual USAID cable on disaster planning.  The Assistant Secretary of Defense for Special Operations/Low Intensity Conflict (ASD (SO/LIC)) will also issue guidance cables and/or memorandums periodically.
      2. The request for DoD involvement will generally come from either USAID/BHA or DoS.  The request will typically be communicated in the form of an ExecSec memo sent to the DoD.^[29]
         1. The ExecSec memo will state that the civilian response capacity has been overwhelmed and that the DoD possesses unique capabilities, which the lead federal agency is requesting to use in the ongoing disaster response.  The memo will specify exactly what type of support is being requested.
         2. The memo will also state whether the assistance requested will be on a reimbursable or non-reimbursable basis.  If the assistance is to be on a reimbursable basis, the request will be accompanied by a reimbursable interagency agreement in accordance with the Foreign Assistance Act.^[30]
         3. Examples of unique capabilities possessed by the DoD include transportation assistance to move relief supplies through both fixed and rotary wing assets, airfield and port opening, the rapid deployment of medical personnel and services, expeditionary engineering, tactical imagery and reconnaissance, and/or the provision of needed non-lethal excess property (e.g., trucks, tents, cots, medical supplies).
      3. The DoD will evaluate the request for assistance based on the following factors:
         1. The availability of the requested DoD support,
         2. The impact that providing the requested support will have on ongoing or potential military operations,
         3. The urgency of the disaster situation, and
         4. Other relevant factors associated with DoD involvement.^[31]
      4. If the SECDEF approves the request for assistance a memo will be issued to the relevant CCMD to authorizing support to the mission.  The memo will usually specify the type of aid that will be provided, the amount of money that may be expended, the source the money will come from, and the authorities being granted.^[32]  CJCS also has responsibility for communicating approved requests for FDR and funding authorization to the CCMD, and for ensuring compliance with DoD policy guidance and the requirements of DoD Directive 5100.46.  Depending on the scale of the operation this may take the form of an EXORD.
      5. The exact composition of the response will vary depending on the nature of each disaster event as well as any restrictions put in place by the U.S. Ambassador and the HN. ^[33]  However, the CCMD will typically utilize the following:
         1. A Crisis Action Team (CAT) consisting of a Humanitarian Assistance Coordination Center (HACC), a Humanitarian Assistance Survey Team (HAST) and a Joint Logistics Operations Center (JLOC).  The CAT is sent to provide immediate relief and assess the disaster to inform the Combatant Commander of follow-on needs.
         2. The CCMD will most commonly assemble a Joint Task Force (JTF) to serve as the main responder to the disaster.  The JTF’s ability to deploy quickly and execute a variety of tasks makes it ideally suited to provide Foreign Disaster Relief.  It is recommended that the JTF have a dedicated Liaison Officer within the BHA DART and that USAID/BHA attach a civilian-military advisor to the JTF.
      6. Other DoD agencies involved in an FDR mission include:
         1. DSCA will coordinate with the CCMD, USAID/BHA, and other relevant offices to finalize logistical and financial requirements.^[34]  Depending on the scope of the disaster, DSCA will coordinate the relevant interagency stakeholders and the CCMD to manage the availability of OHDACA funds and determine if additional resources are required.
         2. DLA provides a substantial portion of the consumable items needed during the operation including food, fuel and energy, uniforms, medical supplies, and construction and barrier equipment.^[35]
         3. The National Geospatial Intelligence Agency can provide information such as geospatial imagery including pre-disaster views of the HN, areas affected by the disaster, and key terrain features.^[36]
         4. The Defense Information Systems Agency (DISA) provides support to the commander’s ability to maintain a command and control network in an expeditionary environment.  DISA maintains Combatant Command Field Offices which are specifically tailored for support within their geographic area.^[37]
   3. Exceptions to the Process.  In certain limited circumstances DoD might be involved in an FDR operation absent an official disaster declaration cable and a request for assistance from either the DoS or USAID/BHA.  Even in these cases, DoD must coordinate with DoS and obtain the HN's permission to begin providing assistance.  Note that the other authorities listed in Section I of this chapter could potentially be used in an FDR-type situation, or lesser calamity, where there is operational authority to do so and the other requirements in those statutes are satisfied.  Meaning you can always have FHA outside the FDR, as FDR is a subset of FHA.
      1. The “72 hour” or “Life and Limb” Authority.  EO 12966, as implemented by DoDD 5100.46, allows commanders with forces located at or near the immediate scene of the disaster event to take prompt action to provide urgent life-saving relief.^[38]  This authority is the primary means by which the DoD responds to a disaster event without an official disaster declaration.  There are FDR situations where USG recognizes that the more time passes, the less likely the assistance will be deemed critical to saving human lives.  It is important to emphasize that the CCMD must informally notify and coordinate efforts with OSD and DoS even in a DoD emergency response situation.^[39]
         1. The on-scene commander invoking this authority must obtain the concurrence of the HN and the U.S. Chief of Mission before committing forces.  The on-scene commander should report the action taken at once and request guidance from the CCMD.  Regulations provide that the CCMD will then follow up as soon as possible, but no later than 72 hours after the start of relief operations, to secure SECDEF or Deputy SECDEF approval for continuing assistance.  The commander must stop providing support once urgent life-threatening circumstances have been addressed unless given approval by the SECDEF to continue support.
         2. This authority shall only be invoked in a true emergency, where the contribution will assist urgent life-saving efforts.  A request for DoD assistance transmitted directly to the military commander from a HN or from a U.S. Country Team is not necessarily sufficient grounds to justify DoD participation because a HN may misdiagnose the need and/or the U.S. Country Teams may lack expertise to make a fully informed assessment.  DoD involvement in FDR in other than in-extremis situations depletes limited DoD resources and diverts personnel from core military missions.
         3. The phrase “at or near the immediate scene of the disaster” has not been clearly defined, but has been interpreted to mean that the on-scene commander must have forces that are geographically located near the disaster event.^[40]  In the absence of a clearer definition, Judge Advocates should be aware that the further the definition of “immediate” is stretched, the more risk that the use of O&M funds will not be reimbursed.
         4. Reimbursement through OHDACA in emergency situations may be limited and will depend on the availability of funds.  This is part of the rationale for why the CCMD must inform the SECDEF so quickly; failure to do so will restrict the ability to receive OHDACA reimbursement.  In the absence of reimbursement, costs must come out of O&M funds.
      2. Presidential Drawdown Authority in FDR Context.  22 U.S.C. 2318(a)(1) authorizes the President to direct the transfer of on-hand DoD-stock defense articles and services and military education and training to foreign countries in response to humanitarian catastrophes.  For the most part, no new procurements are authorized, and no new funds may be placed on existing contracts except for transportation and related services where new contracts would be cheaper than providing the service with DoD assets.  The aggregate value of existing materials and services from on-hand stock may not exceed $75M aggregate value.  Note also, drawdowns are not actual funds, and the organization providing the material or service may or may not be reimbursed at a later date.  DSCA is the DoD entity responsible for processing drawdowns in conjunction with DoS.^[41]
   4. Overall Coordination and DoD Tasking.  Not only is DoD in a supporting role to USAID/BHA, but those agencies are themselves occupying a supporting role to the HN and other international organizations, especially in a large FDR operation.  Disaster Relief missions are often complex undertakings involving multiple nations, international organizations, NGOs, charitable organizations and even private donors.  Each of these organizations function independently of one another, making command and control difficult to maintain.  For that reason, the JTF commander needs to understand how the military fits into the effort and the lines of authority by which all the parties operate.

2. 1. 1. Office for the Coordination of Humanitarian Affairs (OCHA).  OCHA is the office within the UN responsible for bringing together all the participants in the relief mission in order to ensure a coherent response to the disaster.  One of the ways they accomplish this mission is by creating a framework, known as the Cluster System.
      2. Cluster System.  This framework approach breaks down participating humanitarian organizations into sectors, or clusters, of assistance needed (e.g., water, health and logistics).^[42]  All clusters are then appointed a central point of contact known as a Cluster Lead Agency which ensures that any assistance provided within that sector is coordinated within the overall relief effort.
      3. USAID/BHA serves as the USG representative within the Cluster System, vetting and validating the relief requests as they are received before assigning the request to the most appropriate provider within the USG.  Note that although many relief requirements are identified in this way, there is nothing to prevent BHA or the JTF from bringing proposed relief requirements to the attention of the Cluster System.
      4. Mission Tasking Matrix.  Once USAID/BHA has vetted and validated a specific request for assistance, they utilize the Mission Tasking Matrix (MiTaM) to communicate their authorized mission set to whichever organization they have assigned the relief request.  Because USAID/BHA is the lead federal agency, the MiTaM defines the boundaries of the U.S. relief effort.  Therefore, having a MiTaM is often the only assured way to receive reimbursement with OHDACA funds.^[43]  An example of an appropriate Request for Assistance (RFA) and the MiTaM process is as follows:^[44]
         1. Step 1:  An NGO will submit request to an entity within the Cluster System known as the Joint Operation Tasking Center (JOTC).
         2. Step 2:  The JOTC will revise and forward the request to the appropriate supporting cluster.  JOTC will host a daily meeting to review all RFAs.
         3. Step 3:  If a request for assistance is given to USAID, then the BHA DART will determine if the RFA can be supported by BHA or the DoD JTF.  If the RFA is to be assigned to the JTF, a MiTaM is created by the Civil Military Affairs Coordinator (CMAC) and sent to the Civil-Military Affairs (i.e., J9) office within the JTF.  Ideally, and as likely would be policy in a large FDR operation, the JTF should only be tasked if that particular FDR need could not be fulfilled except by the unique military capabilities of JTF.^[45] 
         4. Step 4:  The JTF determines which units will support specific, approved MiTaMs.  Depending on the scale of the task, the JTF might generate a FRAGO.  After the MiTaM is complete, the assigned unit will report back and issue a completion report to the CMAC, copying the DART and JOTC.
3. International Legal and Policy Guidelines
   1. Oslo Guidelines for the Use of Foreign Military and Civil Defense Assets in Disaster Relief.  When a country’s military can provide “unique services” derives from international guidance. ^[46]  The U.S. both helped to negotiate and follows the Oslo Guidelines.  The criteria enumerated in DoD Directive 5100.46 are based upon them.
      1. Background.  The international community has sensitivities about the militarization of FDR operations.  Many countries express wariness about any use of military forces during FDR operations.  These concerns somewhat stem from most militaries lacking the professionalism and command structures of the U.S. military.  Though a significant number of UN Member States participated in the development of the Oslo Guidelines, they are not considered binding.  They are not intended to affect the rights or obligations of countries under international law.  Their implementation by participating countries and implementing partners is encouraged.  Hence, an understanding of these principles is important as they inform the domestic laws and policies of most of the countries that routinely assist in FDR operations.  The Oslo Guidelines will also be part of the nomenclature during actual operations and can serve as a basis for diplomatic discussions.  
      2. Core principles.  The Oslo Guidelines foundationally assert that humanitarian assistance must be provided in accordance with the basic principles of:
         1. Humanity.  Human suffering must be addressed wherever it is found, with particular attention to the most vulnerable in the population, such as children, women and the elderly. The dignity and rights of all victims must be respected and protected.
         2. Neutrality.  Assistance must be provided without engaging in hostilities or taking sides in controversies of a political, religious or ideological nature.
         3. Impartiality.  Humanitarian assistance must be provided without discriminating as to ethnic origin, gender, nationality, political opinions, race or religion. Relief of the suffering must be guided solely by needs and priority must be given to the most urgent cases of distress.
      3. Additional guidelines.  The Oslo guidelines also state that foreign militaries should only be requested when there is no comparable civilian alternative, and such operations should be clearly limited in time and scale.  Foreign military assistance should be provided at no cost to the affected country, unless otherwise agreed upon.  The guidelines also emphasize that all relief actions are the overall responsibility of the affected country.  An affected HN has the right to decline assistance.  Other pertinent provisions include:  if there are military units within an affected HN either perceived as belligerents or actively engaged in hostilities, then they should not be used in support of FDR operations; humanitarian assistance should be provided by humanitarian organizations, military support should not encompass direct assistance; foreign militaries providing FDR support beyond their borders should include within issued orders guidance on the parameters for use of their military resources; and, when military forces have assumed responsibility for vital civilian functions, such as water systems, air traffic control, or power delivery, then regardless of how this responsibility was acquired, those military units will facilitate the transfer back to appropriate civilian authorities as soon as possible.
      4. Model SOFA.  Annex 1 of the Oslo Guidelines contains a model SOFA.  Most military forces deployed to a natural disaster zone should do so consistent with a bilateral agreement or multilateral agreement of some kind.  If no agreement is in place between a responding country and an affected HN, then the Oslo Guidelines recommend utilizing Annex 1 as the basis for a bilateral agreement or SOFA.  Those mobilized under UN auspices are granted the status of experts in executing the mission according to article IV of the Convention on Privileges and Immunities of the UN.  Moreover, if procedures have not already been established for resolution of claims and disputes then they should be settled in accordance with Annex 1.
   2. Civil-Military Guidelines and Reference for Complex Emergencies- This OCHA publication[47] was produced in 2008. It is the first collection of core humanitarian instruments developed by the United Nations (UN) and the Inter-Agency Standing Committee (IASC) on civil-military relationship in complex emergencies. Its goal is to help promote respect for international law, standards and principles in these situations. Having set out guiding principles and operating principles for the integration of military into humanitarian assistance, the document seeks to serve as a non-binding reference for humanitarian practitioners, assisting them in formulating country-specific operational guidelines on civil-military relations for complex emergencies. This document attempts to highlight, in a generic manner, the nature and character of civil-military relations in complex emergencies. Secondly, it reviews some fundamental humanitarian principles and concepts that must be upheld when coordinating with the military. Thirdly, attention is given to practical key considerations for humanitarian workers engaged in civil-military coordination. Subjects covered include co-ordination with the military and the factors to be considered in the provision of armed escorts to humanitarian convoys. Additional guidance can be found in the OCHA July 2014 publication A Guide for the Military[48]
   3. Code of Conduct in Disaster Relief.  These principles were drafted after the genocide in Rwanda.  The project was managed by the International Committee of the Red Cross (ICRC) and completed in the summer of 1994.^[49]  It is a voluntary, self-policing code, to which humanitarian organizations active in disaster relief can become signatories. The code seeks to guard the standards of behavior of the ICRC and non-governmental organizations and does not provide specific guidance for military organizations.  However, the code can be applied to military FDR. In event of armed conflict, the Code does specify that it is to be interpreted and applied in conformity with international humanitarian law. The code seeks to ensure that aid is delivered according to humanitarian imperative, independent of political, religious of other ideological drivers. Improperly delivered aid can divide communities, fuel conflicts, force displacement, and build cultures of dependency. 
   4. DoD implementation.  The U.S. strives to adhere to international humanitarian guidelines, in particular the Oslo Guidelines and the Code of Conduct for Disaster Relief, because the U.S. understands that providing the wrong type of assistance or even providing too much assistance (i.e., “over-helping”) during FHA operations, especially on the part of a military force, can have negative consequences.  The provision of unwanted or unneeded commodities during an FDR crisis can burden a HN.  Though these international guidelines are not specifically incorporated into statutory authorities, many DoD regulations and doctrinal principles borrow directly from these guidelines.  Furthermore, it is often these overlapping U.S. and international criteria relied upon by OSD when denying a request for support to an FDR mission.  As touched on above, use of military assets and funding in a non-essential context garners a lot of scrutiny.  The other concern is the proverbial mission creep.  If the U.S. military goes into a devastated country and takes on a lot of responsibility, then they will create an expectation of continued presence and management.
      1. Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, Section 2110 of the 2005.  Provides that funds marked as International Disaster Assistance (IDA) may not be obligated to an organization that fails to adopt a code of conduct for the protection of beneficiaries of assistance from sexual abuse exploitation and abuse in humanitarian relief operations.  This provision applies to funds obligated for FY 2005 and for subsequent fiscal years.  Hence, all USG awards or grants of IDA funding must include language conditioning the award on adoption of a code of conduct with core principles: prohibiting sexual activity with children; providing that sexual exploitation must be grounds for termination of employment; prohibiting the exchange of money for sexual services or other forms of exploitative behavior; discouraging sexual relationships between humanitarian workers and beneficiaries; mandatory reporting requirements when concerns or suspicions of exploitation arise; and, language obliging all workers to implement the code and maintain an environment that prevents sexual crimes.
   5. Implications of the OE.  Compliance with international guidelines becomes more difficult as the degree of hostility in the OE increases.  In a unique situation where the OE is non-permissive, the following issues invariably create concerns:  distinction; acceptance of assistance by third parties and/or foreign militaries; respect for neutrality of persons providing humanitarian assistance; access to civilian population in need; and protection of relief supplies and persons providing aid.  When deviations from the international guidelines occur, every effort should be made to explain what prompted the aberration in order to promote transparency and avoid distraction from the critical task of providing essential relief to a population in need.
4. NATO SUPPORT FOR NATIONAL AUTHORITIES IN CIVIL EMERGENCIES
   1. Humanitarian Assistance Doctrine.  NATO doctrine[50] states that specific types of military support to humanitarian assistance include disaster relief (DR), support to dislocated civilians, technical assistance and support, chemical, biological, radiological and nuclear (CBRN) consequence management and security.  NATO manages a network of civil experts located across the Euro-Atlantic area which assists allies and partner nations faced with the consequences of crisis, disaster or conflict.  Of note, NATO’s support for civil authorities is planned, managed and executed outside of NATO’s Integrated Military Command Structure.
      1. While the UN retains the primary role in coordinating large-scale international disaster relief, NATO provides an effective forum in which the use of civilian, as well as military assets, can be added to achieve a desired goal within the context of support in civil emergencies.
      2. In the case of a disaster relief operation or other humanitarian emergency not connected to any NATO operation, NATO military capabilities may be deployed in support of civil authorities overseeing the emergency. NATO policy on military support for international disaster relief operations, as outlined in MC 343/1, describes the use of military owned or controlled assets and capabilities not connected to any NATO operation. It emphasizes that NATO assistance to international disaster relief operations (IDRO) will be by exception and will not occur without the consultation of the Strategic Commanders, recommendation by the Military Committee (MC), and approval by the North Atlantic Council (NAC). When NATO-led forces are conducting another type of operation, they may be tasked to deal with humanitarian emergencies. In that case, the military assets will be given finite tasks, within means and capabilities, through the military chain of command.
   2. Disaster Relief.  NATO recognizes that civil emergencies and disaster planning is, first and foremost, a pure national responsibility.  This ultimately led to the creation of NATO’s Euro-Atlantic Disaster Response Coordination Centre (EADRCC), based at NATO Headquarters in Brussels, Belgium, which manages the response network.  The EADRCC is NATO’s principal civil emergency response mechanism in the Euro-Atlantic area, countries in which NATO is involved militarily and other partners across the globe. It is active all year round, operational on a 24/7 basis, and involves all NATO Allies and partner countries. National authorities request and NATO provides support within this network on an ad hoc basis, in times of crisis or under extraordinary circumstances.
      1. Request and Approval Process.  The EADRCC functions as a clearing-house system for coordinating both requests and offers of assistance mainly in case of natural and man-made disasters.  NATO member or partner countries request assistance from the EADRCC, which in turn circulates them to the member countries and Partnership for Peace countries.  The EADRCC facilitates the coordination of responses, and then sends the resulting offers of assistance back to the requesting country.  The EADRCC then approves the offers of assistance from contributing nations that most closely align with the requests of the affected nation.  In this way, duplication of effort is avoided.  In order to ensure the best possible assistance and unity of effort, the EADRCC works closely with the UNOCHA and other international organizations.
         1. In the United States, support was provided in the aftermath of Hurricane Katrina, which devastated the U.S. Gulf Coast in August 2005.  In total, 189 tons of relief and emergency supplies were flown to the United States via an emergency transport operation led by NATO.
         2. In certain cases, approval to provide assistance to civil authorities must come from the North Atlantic Council, the Alliance’s principal decision-making body, and not from the EADRCC.  This can happen when the requestor is not a NATO member or Partner country or when collective Allied military resources are used.
   3. Relationship to DoD FDR Operations.  The NATO support outlined above is relevant to the military commander in a limited number of situations.
      1. First, the potential exists for an overseas U.S. commander to receive a request from his host country to respond to a civil emergency (e.g., FDR situations via NATO processes).  The commander’s role under these circumstances would be defined and limited by the HN’s request; his specific mission in the affected country; and his operational/tactical guidance.  The likelihood of a commander receiving such a request, however, is low.  Civil NATO support is typically requested and received by civilian authorities, separate from the military’s chain of command.  Recognize that NATO member countries are not normally going to be faced with a disaster that overwhelms their local capacity such that foreign military assistance is needed.  Thus, the situation would have to be especially grave and suitable for a military response.  The more likely situation that a deployed commander could be faced with is the decision to use immediate response authority in a civil emergency (i.e., on-scene commander “72 hour” authority).  If this situation occurred, the utilization of immediate response authority would likely be limited by the NATO ROE and tactical guidance.
      2. The second situation would involve a request by a member State to NATO for civil support.  For example, and as mentioned above, the USG requested NATO relief support during Hurricane Katrina in the form of food, medical, and logistical supplies.  Following the request, multiple NATO countries offered support, and NATO eventually approved transport of the requested supplies to the U.S.  Once in the United States, Federal Emergency Management Agency (FEMA) coordinated the physical delivery of the supplies to the necessary locations.  While this NATO civil support operation did not involve the U.S. military, it certainly could have.  In the case of NATO assistance in the U.S., the law and policy surrounding such a response would be guided by the DoD’s domestic operations policy.^[51]
5. commoN Operational Law Considerations
   1. Introduction.  This section is merely a primer of common issues encountered by Judge Advocates during major FDR operations and in the context of out-of-cycle FHA projects.  A Judge Advocate should recognize that each FDR operation is a complex and dynamic undertaking with a host of players and that each situation will require thorough analysis.
      1. It is important to understand that these large-scale FDR missions, especially those crossing the threshold for DoD involvement, represent high-visibility USG undertakings.  A lot of scrutiny will be applied by Congress, the Office of Management and Budget (OMB), the Government Accountability Organization (GAO), and various Inspector General Offices.
      2. AARs from recent FDR operations, especially if from the same country or region, could serve as an additional resource.  See the online references and databases included as appendix A at the end of this chapter or contact CLAMO for assistance in locating relevant AARs.
      3. Some overarching lessons:
         1. Detailed records of expenditures are critical to the reimbursement process.
         2. Validate all DoD tasks.  BHA will be using a Mission Tasking Matrix (MiTaMS) and all DoD tasks should be reflected there.
         3. Pull not push.  Do not force materials into an area if not requested.  The Judge Advocate needs to serve as a bulwark against this mentality.
         4. Whenever possible, plan for the mission together with the other USG entities.
         5. Plan for transition and Phase-Out from the start of the operation.  DoD cannot get involved in something they cannot quickly extricate from.
         6. Engage early, and often, with the CCMD, OSD, BHA/USAID representative and the relevant U.S. Embassy.
   2. DoD Relief Operation Timeline and Parameters.  Judge Advocates participating in an FDR mission need to be aware of the parameters of the DoD role in the operation and the unintended consequences that can result from providing assistance outside of those parameters.  The immediate relief period typically lasts anywhere from six weeks to two months and is chiefly focused on saving lives within the affected country.  If the U.S. spearheads long-term development projects in the affected country after the immediate relief period, then those efforts would fall under the authority of other USAID entities.  Hence, the duration of DoD FDR operations will almost always comprise only a subset of the overall USG timeline.  If called upon in a crisis, U.S. military forces will be some of the first responders on the scene, but they should also be among the first to depart as well.  This timeline should be communicated early and often to the military leadership.
      1. This mentality aligns with the international community’s guidelines on use of the military in FDR.  BHA, the wider international relief community, and often HN officials in the country effected tend to display unease about the FDR operations appearing overly militaristic.  Additionally, these are operations which lend themselves to the proverbial mission creep.  In the affected countries, there are frequently NGO’s already operating on the ground that will be in the best position to offer the right relief in the right places.  DoD personnel often will be bombarded with requests for assistance outside of the approved channels and should therefore be prepared to refer these RFA’s to the DART.
         1. The DoD has defined FDR as “assistance that can be used immediately to alleviate the suffering of foreign disaster victims.”^[52]  Examples of permissible assistance includes but are not limited to:  the rescue and evacuation of victims; the provision and transportation of food, water, clothing, medicines, beds, and bedding, temporary shelter, the furnishing of medical equipment, medical and technical personnel; and repairs to essential services.
         2. By contrast, examples of DoD support which are likely to be found outside the scope of DoD’s FDR mission and/or outside the scope of humanitarian assistance include:  long term reconstruction projects;^[53] creation/improvement of transportation infrastructure that is not necessary to accommodate the delivery of the humanitarian relief efforts; repairing of infrastructure not damaged by the disaster; facilitating law enforcement or judicial organizations (e.g., police).^[54]  All of these are examples of projects that are not immediately related to the disaster relief mission.  The farther the mission strays from the provision of immediate disaster relief, the more risk the commander assumes in using OHDACA.
      2. The main documents which establish the parameters of the mission are the SECDEF memorandum authorizing the CCMD to engage in the mission, as well as any OPORDs, EXORDs, or other concept of operations published by the CCMD or the JTF Commander.  These documents define the types of support that may be provided and anything outside of what is listed is not permissible without a separate authority.  Judge Advocates participating in an FDR mission should obtain copies of these documents as they are the key to understanding the mission parameters.  The order for the military to leave might come from the HN or the Ambassador, or it might have been enumerated in the SECDEF memo.
      3. Naval Sea Basing.  In FDR operations where there is an active Naval component, it is often advantageous, either from the outset or as the JTF transitions out, to set up command and control offshore.  FDR operations ideally are suited for sea basing because of the mobility, self-sustainment, and, most importantly, minimal footprint ashore.  Sea based forces engaged in FDR operations reduce the demand on the affected country’s airfields and other infrastructure.  This allows for more support of the stricken people and government as well as for other aid agencies.  The sea base also arrives at the affected area with full command and control capabilities operating rather than having the time lag required by other forces and agencies that require setup time to be operational.^[55]
   3. Fiscal Law.  Understanding and then overseeing the OHDACA funding source is one of the most important aspects for a Judge Advocate in an FDR operation.  The regulatory framework appears straightforward:  the proposed activity must have a humanitarian nexus (e.g., food, water, shelter, and health/medicine); HA must serve civilian populations; HA may not primarily benefit military or paramilitary personnel or combatants; and, the activity may not be reconstruction/developmental in nature.^[56]  A specific FDR operation, in either an OPORD or FRAGO, will typically contain more detailed parameters, namely:  whether the military has a unique capability to offer; and, whether DoD is compelled to step forward to meet immediate needs that otherwise would go unfilled.^[57]  However, interpreting this language in the context of an FDR mission, where HN and NGO representatives are constantly asking military commanders for support, will be difficult.  Judge Advocates play a crucial role in carefully tying requests to a proper purpose, establishing justifications for projects, and building a robust audit trail.^[58]  DSCA or DoD may object to a COCOM’s use of OHDACA funds if the proposed or accomplished assistance is poorly or inadequately justified as falling with the assigned HA mission and complies with all DoD HA guidance.  It may be challenging to apply the broad and general HA guidance in the DSCA Security Assistance Management Manual to your specific situation.  With the concurrence of the applicable CCMD legal office, you may directly contact DSCA Office of General Counsel for advice on any issues that merit further legal scrutiny.
      1. Minimal Cost and Out-of-Cycle Projects.  These issues normally come up in the context of FHA projects pursued by the CCMD, yet not included in the annual OHDACA allocation plan.  Out-of-cycle simply refers to those requested outside of the annual CCMD plan; they could be minimal cost, or those HA projects requested in the context of an FDR or contingency operation.  Minimal cost projects are conducted under the auspices of the 10 USC 256l (a)(l) language that allows for providing “other humanitarian purposes worldwide.”  The minimal cost project upper limit is set by OSD and currently is $15,000 (unless modified by a waiver from DSCA); these can be approved at the CCMD level.^[59]
         1. Overseas Humanitarian Assistance Shared Information System (OHASIS).  All minimal cost and any out-of-cycle projects must be nominated through OHASIS.  It is important that the proper accounting and tracking in order to document completion and compliance with the proper goals of OHDACA.  These projects are also tracked to avoid repetitive aid that does not address issues or properly complement assistance provided by USAID.^[60]
         2. Project Splitting.  Incremental implementation or project splitting by dividing one project into two less expensive ones is prohibited.  However, at times the use of separate contracts might be necessary to meet its mission requirements.  Project splitting is only a violation when it is being done to reduce costs below statutory limitations, contracting thresholds, or other project approval levels.^[61]  A CCMD may not divide a single project into multiple projects to fall within the HA minimal cost project threshold.
      2. Property Disposition Issues During FDR completion and Redeployment.  In the FHA context, and especially in the case of an FDR operation, questions may arise about how to dispose of, or give away, unwanted DoD property by redeploying DoD forces.  Redeploying DoD forces may also seek to retain OHDACA funded equipment that was purchased by DoD forces who needed such equipment to execute the HA mission.
         1. OHDACA funded equipment/supplies purchased for DoD use to execute the HA mission.  Since OHDACA funds are specifically purposed for addressing overseas HA needs and not to benefit U.S. forces, a DoD unit cannot just keep OHDACA-funded equipment or personal property at the conclusion of the FDR mission.^[62]   If a DoD unit opts to retain OHDACA-procured equipment for use in future DoD missions, it will be necessary to accomplish a cost swap to ensure that the full acquisition cost for the retained equipment is paid for with O&M funds instead of OHDACA.  The CCMD can avoid the need for a cost swap by either:  (1) seeking permission to abandon the OHDACA-funded equipment at conclusion of the FDR mission; or (2) by declaring the property excess and having the CCMD pursue an excess property project pursuant to 10 USC 2557.  If OHDACA-procured property for DoD use is declared excess, pursuant to 10 USC 2557, the excess property must be transferred to DoS (typically via the U.S. Embassy), who will then take responsibility for distributing (sometimes through the HN) to a charitable organization or NGO that supports the population.^[63]  In order for excess property to be properly recorded DoD must turn over property to Defense Logistics Agency (DLA) Disposition Services (formerly known as DRMS/DRMO) for processing.^[64]
         2. Excess Property Procedures.  In the context of FHA or an FDR operation, regulations allow flexibility in declaring, acquiring, and transporting excess property.  Ideally before an operation commences, the Judge Advocate should consult with CCMD HA Program Manager, DLA representative, and the local USAID representative for area-specific processes.  These expedited processes do not eliminate the requirement for proper record keeping of all transactions surrounding the transfer, to include filling all associated documentation with DLA and in OHASIS.  In practice, the excess property or medical supplies used at a given site (e.g., a hospital or clinic) are often turned over to a representative at that site and the documentation is completed contemporaneously.^[65] 
         3. Improper Foreign Assistance.  Without securing proper authority before disposing of U.S. taxpayer purchased property to a foreign entity, the JTF risks engaging in improper foreign assistance.  The intended recipient can also be a significant consideration, especially if it is a HN government entity or part of their security forces.^[66]
      3. DoD movements prior to CCMD HA mission tasking.  Sometimes when a large-scale disaster strikes, such that DoD anticipates being requested to assist, maritime assets will be pre-positioned or supplies will be pre-staged.^[67]  While the placement of DoD authorities is within DoD’s purview, the cost of deploying DoD forces prior to when a CCMD is directed to execute an FDR mission may not be reimbursed with OHDACA funds.
   4. Force Protection.  This issue relates to JTF active-duty personnel and other humanitarian relief personnel, especially if often working side-by-side with U.S. Forces.  Though FDR missions usually occur in a permissive environment, issues such as ROE, weapons posture, and general safety remain a sensitive and justifiable concern for commanders.  Quite often tension arises with the desires of the HN officials who have unease about a foreign military force walking around with weapons.
      1. Engage CCMD and U.S. Embassy Country Team Early.  The starting point for ROE and RUF development for an FDR mission is the Standing Rules of Engagement (SROE) and Standing Rules for the Use of Force (SRUF).  Because the mission is not offensive in nature, the main concerns are the rules for self-defense of personnel and defense of designated property.  Judge Advocates should work ahead of time to begin identifying which property or equipment needs to be designated for self-defense purposes and which level of command bears the responsibility for the designation.  Supplemental measures and the overall proposed JTF ROE will have to be approved prior to promulgation through appropriate channels (e.g., CJSC, SECDEF).^[68]
         1. HN Concurrence.  The HN government will likely define the force protection measures that they will accept.  The HN controls the importation of weapons into its territory; therefore, it exercises a substantial amount of control over ROE development.  The HN may insist on minimal force protection measures out of concerns for the negative perception, both internally and externally, that could be created by having an armed foreign military moving through the population, especially during a time of crisis and confusion which is often created by the disaster event.  The HN may even insist that U.S. Forces not carry weapons openly but instead rely on local security forces for protection.
         2. If at any point the JTF Commander feels that HN security measures are not sufficient to guarantee the safety of DoD personnel participating in the mission this should be communicated to higher as it negates one of the DoD criteria for participation in an FDR mission.
      2. ROE Working Group.  Although the ROE development is an operations function and is generally the responsibility of the cognizant G-3/J-3, Judge Advocates will often be tasked with drafting the ROE and/or provide critical input when developing operations orders.  Judge Advocates with ROE drafting responsibility should form a working group early.  Topics analyzed should cover weapons posture, designations (who can carry, who cannot), escalation of force measures, when/if lethal force would be authorized, and ensuring any bilateral agreements or diplomatic notes with the HN encompass all the issues necessary to maintain adequate security.^[69]  Other considerations may include: alignment with ROE of other participating countries; whether designated personnel have necessary small arms qualifications; when/if any Sailors at sea would be designated to carry arms; approval authority for Riot Control Agents (RCA) and or other non-lethal measures; and, whether temporary detention might be necessary. ^[70]  In a very permissive environment, the ROE will probably look like Rules for the Use of Force (RUF).
      3. ROE Alignment and Training.  To the extent possible, all units participating in the mission should use the same ROE in order to prevent any confusion and to ensure that all units are supporting the goals set by the JTF commander.  In a large FDR operation with other participating countries, there will of course be at least some caveats.  Judge Advocates should identify all partner nations and/or troops working under the UN mandate and provide operational planners with a resource distinguishing the differences between U.S. and multinational ROE. ^[71]  As with any operation, to the extent time allows Judge Advocates should use the completed mission-specific ROE to develop scenario-based training on the proper use of less than lethal force, and protection of people and places.  Create unclassified and releasable ROE materials to the extent possible.
   5. International Agreements.  Because an FDR mission occurs within sovereign territory of another nation, many aspects of the mission will be affected by local laws as well as any agreements that the HN has entered into with the U.S.  Pre-existing and negotiated agreements will affect entry of humanitarian personnel, as well as the legal issues that pertain to the importation of humanitarian goods and materials. 
      1. Overview.  The most common types of agreements that pertain to an FDR mission include Status of Forces Agreements (SOFA), Visiting Forces Acts (VFA), and Diplomatic Notes.
         1. SOFA.  An agreement between the HN and the U.S. which defines the legal status of U.S. Forces when they are deployed in the territory of the HN.  This is the most comprehensive agreement and is usually reserved for countries in which the U.S. military has a standing presence.
         2. VFA.  Also known as a Visiting Forces Agreement, a VFA serves to extend some level of protection to U.S. Forces where there is no SOFA.  A VFA usually provides many similar protections to those found in a SOFA, however, because it is meant to cover forces temporarily visiting the country, a VFA will likely not provide as much protection as a SOFA.
         3. Diplomatic Notes.  In situations where there is no pre-existing SOFA or VFA with the HN and there is insufficient time to negotiate one, the exchange of diplomatic notes may be used.  For purposes of an FDR mission, diplomatic notes contain official agreements between the HN and the USG governing how the mission will be conducted.
      2. Pre-deployment Preparation.  Judge Advocates should obtain and read diplomatic notes or existing SOFAs before entering an area of operations.  DoS and the CCMD legal office should have the most up-to-date information.  CLAMO and the Army National Security Law Division (NSLD) also maintain a document library.^[72]  Also be aware of the start and end dates for any agreements.
      3. Planning and Negotiation.  DoS is the lead agency for negotiating an international agreement,^[73] but they need injects and requirements from the JTF Commander, who will rely on input and advice from the Judge Advocate.  If JTF personnel do engage in preliminary discussions with HN officials over international agreements, the CCMD and DoS representatives need to be notified.  DSCA Office of General Council needs to review any proposed agreement between DoD and the HN if the subject of the proposed agreement concerns the use of OHDACA funds.  For planning purposes, Judge Advocates participating in the mission should consider whether any pre-existing agreements, or under negotiation agreements, cover issues such as:  entry and departure permits (visa requirements or waiver);^[74] freedom of movement within the HN; recognition of medical credentials; criminal jurisdiction issues; overflight issues including overflight of neighboring countries; terms on importation and customs (i.e., tariff free import for military supplies); claims against the U.S. (ideally a waiver); and, any terms related to security protections, in particular protections for civilians who are employed by or accompanying the U.S. Forces.
   6. Relief messaging.  The strategic impetus for U.S. FHA and FDR operations centers not just on alleviating suffering, but also gaining trust and influence around the globe.  The statements released by DoD and the operations chosen as highlights have a tremendous impact on the local populous and regional partners.  Moreover, the U.S. public often does not understand that giving money to implementing partners is the best way to help.  Sending large amounts of commodities creates logistics problems and often these supplies are not what is most needed.  Experience has also demonstrated that public statements from USG officials, those within DoD included, concerning humanitarian aid are sometimes misinterpreted as general pleas for any type of assistance, for example unneeded commodities and untrained volunteers.
      1. Public Affairs Coordination.  Judge Advocates should ensure persons speaking to the media understand DoD’s role and key messages.  Immediately make contact and set expectations with the DoD public affairs personnel assigned to the operation as well as the U.S. Embassy public affairs personnel.  Emphasize to them how important their role is to the overall mission and request that they bring important issues to the attention of the Judge Advocates.  In addition, help craft appropriate language for press statements, this is particularly important when the use of military forces is part of a larger USG response within a HN.  The U.S. Embassy and military Public Affairs Offices likely will have promulgated guidance; Judge Advocates should review this also.
      2. USAID has developed a message regarding donations, based on years of experience, to manage the public’s response to overseas disasters.  Embassies and BHA personnel can assist with public statements, messages, and they can also provide information on properly vetted relief organizations accepting donations to serve the affected country.  Also see the online resources listed at the end of this chapter.
      3. Judge Advocates must ensure federal employees and active-duty personnel follow ethics rules.  Many federal workers want to raise money to assist with relief efforts.  Judge Advocates should put out information on ways federal workers can donate to disaster relief in the workplace.
   7. Contingency Operations and Aid through Foreign Militaries.  The worse the security situation the more difficult delivery, equitable access, and compliance with OHDACA requirements becomes.  These are typically not going to be large FDR operations, but rather out-of-cycle FHA projects in contingency operations, typically under the authority of 10 USC 2561(a)(1).^[75]  Even in a contingency operation, remember that, unless an exception applies, support may be provided only at the request of DoS or USAID, and only upon the subsequent approval of DoD (typically through the EXECSEC Memo process).  DoD law and policy states that humanitarian assistance may not benefit military or paramilitary personnel or combatants.  However, if necessary, DoD OHDACA funded materials may be provided through foreign militaries if the ultimate beneficiary is the civilian population and the foreign military has an official role in providing humanitarian services directly to the public (e.g., an emergency response or medical mission).^[76]  While any DoD assistance to foreign military or security forces require human rights vetting,^[77] using foreign security forces to distribute aid to the civilian populace is not considered assistance to the foreign security forces.  Leahy vetting would be required if the foreign security forces would also be consuming or benefiting from a portion of the provided assistance.
      1. Non-Permissive Environments.  Some operations where the USG views a humanitarian need might be so hostile as to hinder the ability of USG civilian entities to operate.  Gaining concurrence from the HN might also be complicated, especially if it is not clear which HN entity is the recognized government.  In these situations, 10 USC 2561(a)(1) usually will be the authority with the most flexibility in delivering assistance, however some high-level exceptions to policy might be required.^[78]
      2. Equitable Access.  Even in a less than permissive environment, DoD policy still requires FHA projects to benefit the civilian population of the HN and be distributed based on an objective assessment of humanitarian needs.  FHA cannot be allocated based upon any considerations of race, ethnic origin, religion, or to show favor toward one group over another.
      3. Support to Foreign Militaries.  Sometimes in the context of these operations a foreign military might be involved as the recipient of what seems like an FHA request.  Keep in mind that funding sources other than OHDACA and/or use of an Acquisition Cross-Servicing Agreement (ACSA) are available.^[79]  Since contingency operations can be complex and not all countries will have an ACSA with the U.S., it is imperative that the JTF understand the ACSA relationships existing within the operating area.
   8. Relationships with NGOs.  Ideally MoUs are constructed with each significant NGO in order to provide consistency, and then each individual NGO might have a one-page addendum addressing issues specific to each.^[80]  Often in fast moving FDR operations DoD elements will not have the ability to craft MoUs and/or they will be working with NGOs without much experience with the military.  Even in these situations NGOs will have been vetted by USAID as capable implementing partners, at least if they are distributing aid paid for by USG.  DoD does not have any authority to provide grant assistance to an NGO.  DoD would be able to contract with an NGO but not all NGOs have the ability or wiliness to serve as a DoD contractor.  Other issues that may arise while working with NGOs include but are not limited to gift acceptance; when non-DoD personnel can embark as passengers in helicopter and fixed wing aircraft (waiver likely required); information sharing with NGOs; utilization of liaison officers; and the transportation of NGO personnel and supplies.^[81]
   1. Status of Affected Population.  Correct terminology and application of those affected by the disaster is extremely important.  In the aftermath of the earthquake in Haiti in 2010, there were several instances where the press quoted U.S. officials as using the terms “refugee” and/or “asylee” when referring to survivors of the Haiti earthquake seeking to leave Haiti.^[82]  Neither of these terms applied to the situation.  These various terms have legal ramifications under domestic and international law.  In general, members of the population forced to flee within the country are “displaced” or “earthquake affected” persons; those interdicted at sea are “migrants.”  Political asylum is a request for protection and sanctuary by a foreign national because of persecution or fear of persecution on account of race, religion, nationality, membership in a particular group, or political opinion.  Temporary refuge is a request for protection by a foreign national for humanitarian reasons under conditions of urgency in order to secure the life or safety of that person against imminent danger.^[83]  Judge Advocates should inform themselves of any guidance issued by DoS Bureau of Population, Refugees, and Migration (PRM) related to any area or specific operation.  This is an important legal training topic or there is a risk that DoD personnel will inadvertently encourage requests for asylum.

6. REFERENCES
   1. 10 USC § 401, Humanitarian and Civic Assistance in Conjunction with Military Operations
   2. 10 USC § 402, Transportation of Humanitarian Relief Supplies to Foreign Countries
   3. 10 USC § 404, Foreign Disaster Assistance
   4. 10 USC § 407, Humanitarian Demining Assistance
   5. 10 USC § 2561, Humanitarian Assistance
   6. 10 USC § 2557, Excess Nonlethal Supplies
   7. 22 USC § 2318(a)(1), Presidential Drawdown Authority (relating to international disaster assistance)
   8. Foreign Assistance Act of 1961, P. L. 87-195, as amended through P.L. 114–195, enacted 20 Jul 2016
   1. Exec. Order No. 12966, Foreign Disaster Assistance, Vol. 60 Fed. Reg. No. 137 (14 Jul 1995)
   10. National Security Presidential Directive 44: Management of Interagency Efforts Concerning Reconstruction and Stabilization (7 Dec 2005)
   11. U.S. Dep’t of Defense Dir. 5100.46, Foreign Disaster Relief, (6 Jul 2012), Incorporating Change 1, (July 28, 2017)
   50. U.S. Dep’t of Defense Dir. 2010.9, Acquisition and Cross-Servicing Agreements (30 Sep 2016), Incorporating Change 2, (August 31, 2018)
   1000. U.S. Dep’t of Defense Inst. 2205.02, Humanitarian and Civic Assistance (HCA) Activities (23 Jun 2014)
   14. U.S. Dep’t of Defense, Financial Management Regulations, DoD 7000.14-R
   15. U.S. Dep’t of Defense, Manual 3025.01, Defense Support of Civil Authorities, (Aug 2016), Change 1 Effective: (April 13, 2017)
   16. U.S. Dep’t of Defense, Defense Materiel Disposition Manual 4160.21-M – Disposal Guidance and Procedures, 22 Oct 2015
   17. DSCA Security Assistance Management Manual (SAMM), chapter 12, last revision 14 July 2016.  Available at:  http://www.samm.dsca.mil/chapter/chapter-12
   18. U.S. Dep’t of Defense, Joint Pub. 3-29, Joint Doctrine for Foreign Humanitarian Assistance (3 Jan 2014)
   19. U.S. Dep’t of Defense, Joint Pub. 3-07.6, Joint Tactics, Techniques, and Procedures for Foreign Humanitarian Assistance (15 Aug 2001)
   20. DoD Joint Task Force Commander’s FDR Handbook, GTA 90-01-030 (13 Jul 2011)
   21. U.S. Dep’t of Navy, Warfare Development Command (NWDC) TACMEMO 3-07-6-05, HA/DR Operational Planning (Aug 2005)
   5. U.S. Chief of Naval Operations Inst. 5726.3D, Project Handclasp (26 Sep 2016)
   23. OFDA Field Operations Guide for Disaster Assessment and Response, version 4 (Nov 2005) (note that OFDA is now BHA)
   10. Office of the Secretary of Defense Cable:  Policy Guidance for DoD Humanitarian Assistance Programs, Including those Activities Funded by the OHDACA Appropriation (released 10 Aug 2016)
   25. USAID's Office of U.S. Foreign Disaster Assistance:  Guidance for Disaster Planning and Response ‐ Fiscal Year 2017, (cable released 7 Oct 2016)
   26. Oslo Guidelines on The Use of Foreign Military and Civil Defense Assets in Disaster Relief, Nov 2007
   1. The Code of Conduct for the International Red Cross and Red Crescent Movement and Non- Governmental Organizations (NGOs) in Disaster Relief, 1994
7. Online Resources
   1. ReleifWeb (http://reliefweb.int/).  The leading humanitarian information source on global crises and disasters.  It is a specialized digital service of OCHA.
   2. Humanitarian Response (https://www.humanitarianresponse.info/).  Another operational website fostered by OCHA.  Its goal is to be the place where the disaster response community can share, find, and collaborate on information to inform strategic decisions.
   3. UN Logistics Cluster (http://www.logcluster.org/).  A field-based inter-agency logistics information platform to coordinate operations, support operational decision-making and improve the predictability, timeliness and efficiency of the humanitarian emergency response.  Where necessary, the Logistics Cluster also facilitates access to common logistics services.
   4. U.S. Geological Survey (USGS) (https://earthquake.usgs.gov/earthquakes/).  Provides real-time alerts regarding earthquakes around the world.
   5. National Hurricane Center (http://www.nhc.noaa.gov/).  Provides real-time alerts regarding hurricanes, tropical storms, and other significant rains around the world.
   6. UN Office for the Coordination of Humanitarian Affairs (OCHA) (http://www.unocha.org/).  Contains information management resources and guidance on civil-military relations (http://www.unocha.org/themes/humanitarian-civil-military-coordination).
   7. USG Foreign Assistance info (http://foreignassistance.gov/).  A website for improving transparency in U.S. foreign assistance spending.  Transparency and open data enable stakeholders and the general public to better understand U.S. foreign assistance investments around the world, make foreign assistance more useful for development, and help hold ourselves more accountable.
   8. Defense Security Cooperation Agency (DSCA) (http://www.dsca.mil/).  In particular their Security Assistance Management Manual (SAMM) is available in a navigable online format.