Legal Challenges Faced By Militaries in Undertaking Disaster Relief Operations: Indonesia’s Perspective Presented by: Ibnu Hadi Director for Directorate of Intra-Regional Cooperation of Asia-Pacific and Africa Department of Foreign Affairs Republic of Indonesia

Indonesia’s Legal Foundation on Disaster Management National Laws: National Laws: Law No. 37/1999 on Foreign Relations Law No. 24/2000 on International Treaties Law No. 34/2004 on Indonesian Armed Forces (TNI) Law No. 24/2007 on Disaster Management Government Regulation No. 21/2008 on Organizing Disaster Management Government Regulation No. 22/2008 on Funding and Organizing Aid Government Regulation No. 23/2008 on the Role of International Organizations and Foreign International NGO on Disaster Management

Disaster Management Principles Principles - Law No. 24/2007 on Disaster Management Art.3 a. humanity; b. justice; c. equality before the law and government; d. balance, harmony, and synchrony; e. order and legal certainty; f. sense of community; g. environmental conservation; and h. science and technology.

Role of International Cooperation/Agencies Role of International Cooperation/Agencies Law No. 24/2007 on Disaster Management Art. 30 (1) International agencies and foreign non-governmental agencies may participate in disaster management activity and obtain guarantee of protection from Government towards their employees. (1) International agencies and foreign non-governmental agencies may participate in disaster management activity and obtain guarantee of protection from Government towards their employees. (2) International agencies and foreign non-governmental agencies in implementing disaster management activity as mentioned in clause [1] may perform individually, in federation, and/or in cooperation with working partner from Indonesia by heeding local social, cultural, and religious background. (2) International agencies and foreign non-governmental agencies in implementing disaster management activity as mentioned in clause [1] may perform individually, in federation, and/or in cooperation with working partner from Indonesia by heeding local social, cultural, and religious background.

Law No. 34/2004 on Indonesian Armed Forces (TNI) Art. 7 (2b-12) TNI is carrying out war military operations as well as military operations other than war Military operations other than war, include among others, to assist in the humanitarian assistance caused by natural disaster and other causes of disaster

Coordination for International Agencies’ Involvement During Disaster Management Govt. Regulation No. 23/2008 on the Role of International Org.: Govt. Regulation No. 23/2008 on the Role of International Org.: art. 10: International Involvement is coordinated by the National Disaster Management Agency (BNPB) art. 16: International agencies must submit report of its work periodically, at the end of its work, or anytime upon the request of the BNPB

Participation of Foreign Military and Civilian Personnel in Disaster Relief Regulated by National Laws and Regulations In Accordance with International Conventions and Guidelines Vienna Convention 1961 (art on Privileges and Immunities) Oslo Guidelines Art. 32 ASEAN SASOP ARF Strategic Guidance for Humanitarian Assistance and Disaster Relief

Important Elements: - Requests for Military and Civil Defense Assets (MCDA) to support UN agencies must be made by the Humanitarian Coordinator/Resident Coordinator, with the consent of the Affected State, and based solely on humanitarian criteria. - MCDA should be employed by UN humanitarian agencies as a last resort - The operation as a whole must remain under the overall authority and control of the responsible humanitarian organization.

Important Elements: Humanitarian work should be performed by humanitarian organizations. Insofar as military organizations have a role to play in supporting humanitarian work, it should, to the extent possible, not encompass direct assistance, in order to retain a clear distinction between the normal functions and roles of humanitarian and military stakeholders. - Any use of MCDA should be, at its onset, clearly limited in time and scale and present an exit strategy element that defines clearly how the function it undertakes could, in the future, be undertaken by civilian personnel. - Countries providing MCDA to support UN humanitarian operations should ensure that they respect the UN Codes of Conduct and the humanitarian principles. - Countries providing MCDA to support UN humanitarian operations should ensure that they respect the UN Codes of Conduct and the humanitarian principles.

Important Elements: - Issue of providing description of the capabilities, quantity and specifications of the military and civilian assets and capacities that are earmarked for regional standby arrangements to support joint disaster relief and emergency response operations. Details required are for assets and capacities in the water and sanitary, medical, transportation, communications, utilities, bulk storage and staging facilities categories; - Issue of providing description of the capabilities, quantity and specifications of emergency stockpiles of disaster relief items that are earmarked for regional standby arrangements to support joint disaster arrangements to support joint disaster relief and emergency response operations. Details required are for emergency stockpiles of Equipment and Materials (communications, transportation, power supply, medical, water and sanitary) and Consumables (food and nutrition, medical, water and sanitary, clothing and bedding, household items and rescue capability) that may be supplied directly from suppliers or through a supply chain from pre-positioned storage facilities that may already be part of the Party’s emergency stockpile.

Important Elements: - Issue of providing data on expertise and technology resources available for disaster management which can be deployed to support the joint disaster relief and emergency response operations. Details required are specific expertise of the disaster management professionals and practitioners e.g. specialties in rapid disaster assessment, incident command, coordination and communications, emergency public health, search and rescue, casualty and trauma management and; available technologies to support the disaster relief and emergency response operations e.g. information technology and telecommunications hardware, forensic capabilities.

Lesson Learned from Aceh Tsunami and Yogyakarta Quake - Astonishing assistances from International Community. - Astonishing assistances from International Community. - Need for national/local SOP and contingency/emergency plan for large scale disaster - Difficulty faced when the foreign military and civilian personnel arrive to provide assistances: - Unknown Arrival time - Lack of Deliveries Planning - Time spent for the arrival procedures - Difficulties to move the equipment - Teams concentrated in certain areas only - Some teams lack of equipment - Need to set up more integrated disaster relief team

Lesson Learned - Continued - Need more effective procedure for customs and visa during disaster relief operation - Need more effective procedure for customs and visa during disaster relief operation - Need info about the types of the assistances from the donor prior to arrival - Team assignment based on their capabilities - Need liaison personnel for the foreign teams -Need more effective communication system

Way Forward Learning from past experiences, Indonesia provides a framework in the (temporary) arrangements on foreign military personnel and civilian officials who are temporarily present in the Republic of Indonesia solely for the purpose of operation on emergency disaster relief when it is deemed necessary: - Military personnel and related civilian officials shall respect the sovereignty, territorial integrity, national unity, and political independence of the Republic of Indonesia; - The Government of the Republic of Indonesia will have the primary responsibility for the overall direction, organization and coordination of the operation; and will be responsible for the security of all military personnel, foreign aircrafts, and ships operated in the territory of the Republic of Indonesia; - Military personnel and related civilian officials will enjoy same status as provided under the Vienna Convention on Diplomatic Relations 1961; and will enjoy entry into and exit from Indonesia without delay in accordance with the existing procedures

Way Forward All foreign aircrafts and ships for the operation will be given clearance and be facilitated by the GOI, incl. Communication channels, open radio frequencies and Identification Friend or Foe. They are not subjected to custom charges, landing or port fees, pilotage charges, navigation, overflight or parking charges, light and harbor dues, or overland transit fees. The GOI will accord duty free importation and exportation.

Conclusion - Since tsunami disaster 2004, Indonesia have enacted new laws and regulations and in accordance with the international conventions, agreements or guidelines - BNPB is a relatively new institution with strong mandate as the Indonesian National Disaster Management Agency - TNI is an important institution in supporting disaster relief operation, especially during the emergency response phase, in cooperation with BNPB and other related agencies - BNPB is in the process of completing an MOU/arrangement with TNI to provide better cooperation and coordination Thank You