The Law And Low Intensity Conflict
Three bodies of law are relevant to the conduct of US military operations in LIC: international, US, and host nation law.
INTERNATIONAL, US, AND HOST NATION LAW
The United States conducts LIC operations in accordance with international law. International law includes the law of war, as well as international agreements and customary international law. International agreements prescribe the rights, duties, powers, and privileges of nations relative to particular undertakings. International agreements will affect US assistance in LIC operations in such matters as--
- The status of US personnel in a foreign country.
- Construction and operation of US bases.
- Aircraft overflight and landing rights.
- The processing of claims for damage to persons and property.
LIC operations must also comply with US law, whether in the form of a statute, executive order, regulation, or other directive from a branch or agency of the federal government. The US Uniform Code of Military Justice will apply to questions of military justice; the Federal Acquisition Regulation and various statutes will govern the acquisition of supplies and services for US forces; the Foreign Assistance Act and Arms Export Control Act will govern the extent of assistance given to a foreign country; Executive Order 12333 and service regulations will govern intelligence activities; and the Case Act and implementing directives will govern the negotiation and conclusion of international agreements. The planner must therefore consult his organization's legal advisor and ensure that proposed courses of action comply with applicable law.
Host Nation Law
All laws of the host nation, whether at the national or the local level, will apply to US forces in that country unless an international agreement provides otherwise. The types of laws that may inhibit US operations are in the fields of immigration, labor, currency exchange, procurement of goods and services, customs and taxes, and criminal and civil liability. The planner must therefore understand what the law is in order to assess whether it will adversely affect the operation. Assistance may be available from the local US consul or the command judge advocate, or the command may have to rely on other sources for guidance. If local law conflicts with the operation, other US agencies may assist the planner in negotiating agreements that will exempt US forces from local law.
WAR POWERS RESOLUTION
Public Law 93-148, the War Powers Resolution of November 1973, requires the to consult with and report to the US Congress when introducing US armed forces--
- Into hostilities.
- Into situations where imminent involvement in hostilities
is clearly indicated by the circumstances.
- Into foreign territories when equipped for combat
(except, for supply, repair, replacement, and training).
- In numbers which substantially increase the number of US forces equipped for combat in a foreign country.
Procedures have been established for the legal advisor to the chairman, JCS, to review all force deployment actions routed through the JCS to which the WPR may apply. The chairman's legal advisor subsequently reports to the DOD general counsel concerning the WPR's applicability. If the DOD general counsel determines that the situation merits further interagency discussion, he consults with the Department of State's legal advisor and, perhaps, with the attorney general. This process is intended to provide the President advice concerning the Congressional consultation and reporting requirements mandated by the WPR.
Commanders and military planners should be aware that the advisory and training commitment of US military personnel may require review for applicability of the WPR. Advisory duties, especially in an insurgency or counterinsurgency situation, may fall in the category of actions requiring consultation and reporting.
If found to be applicable, the WPR requires the withdrawal of US forces within 60 days of the reporting date, or 90 days when the President deems it militarily necessary, unless Congress approves otherwise.
Activities of US military personnel serving in foreign countries will occasionally result in personal injuries, deaths, and property damage to other individuals and entities. Also, US armed forces personnel may be injured and their property, or that of the US government, may be damaged, lost or destroyed. Claims against the United States which arise in foreign countries are settled under a variety of statutes and international agreements. These include, primarily, the Foreign Claims Act, and status of forces agreements claims provisions. Article VIII of the North Atlantic Treaty Organization (NATO) status of forces agreement, for example, provides for the settlement of claims arising out of NATO operations.
USE OF CHEMICAL HERBICIDES AND RIOT CONTROL AGENTS
Presidential Executive Order 11850, 8 April 1975, prescribes policy for the use of chemical herbicides and riot control agents. It states in part--
"The United States renounces, as a matter of national policy, first use of herbicides in war except use, under regulations applicable to their domestic use, for control of vegetation within US bases and installations or around their immediate defensive perimeters, and first use of riot control agents in war except in defensive military modes to save lives such as:
(b) Use of riot control agents in situations in which civilians are used to mask or screen attacks and civilian casualties can be reduced or avoided.
(c) Use of riot control agents in rescue missions in remotely isolated areas, of downed aircrews and passengers, and escaping prisoners.
(d) Use of riot control agents in rear echelon areas outside the zone of immediate combat to protect convoys from civil disturbances, terrorists, and paramilitary organizations.
Now, therefore, by virtue of the authority vested in me as President of the United States of America by the Constitution and laws of the United States and as Commander-in-Chief of the Armed Forces of the United States, it is hereby ordered as follows:
SECTION 1. The Secretary of Defense shall take all necessary measures to ensure that the use by the armed forces of the United States of any riot control agents and chemical herbicides in war is prohibited unless such use has Presidential approval, in advance.
SECTION 2. The Secretary of Defense shall prescribe the rules and regulations he deems necessary to ensure that the national policy herein announced shall be observed by the Armed Forces of the United States."
Commanders should consult their legal advisors on the implementation of this policy on a case-by-case basis.
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