Chapter 15

Noncombatant Evacuation Operations (NEO)

I.  INTRODUCTION

A.   Noncombatant Evacuation Operations (NEO).  Defined as operations “whereby noncombatant evacuees are evacuated from a threatened area abroad, which includes areas facing actual or potential danger from natural or manmade disasters, civil unrest, imminent or actual terrorist activities, hostilities, and similar circumstances, that is carried out with the assistance of the Department of Defense (DoD).”^[1]  Typically, the Department of State (DoS) will issue an ordered departure if U.S. citizens need to leave a country.  When DoS requests DoD assistance, it is referred to as a military-assisted ordered departure, military assisted NEO, or simply a NEO.  A NEO occurs infrequently, but carries enormous diplomatic and strategic consequences.  A crisis situation requiring a NEO will be heavily scrutinized, and images of noncombatants in danger can carry a powerful message.

B.    Department of State (DoS) Supported Operations.  Within the host nation (HN), the Chief of Mission (COM) is the lead federal official for protection and evacuation of all U.S. noncombatant evacuees, including DoD dependents.^[2]  DoD has responsibility for preparing and implementing plans for NEO, and those plans must be integrated into corresponding DoS plans for evacuation of noncombatants.  DoD is also responsible for assisting DoS in executing a NEO when militarily feasible and when requested by the Secretary of State (SECSTATE).  The authority of the COM or principal officer of DoS to order evacuation does not extend to personnel of the U.S. armed forces not under COM authority, except as agreed upon between DoS and DoD.^[3]

C.    Types of NEO and Nature of Evacuees.  A NEO can be a concurrent mission with other operations across the spectrum of conflict in a particular foreign country.^[4]  It can also be conducted gradually in phases of authorized departures or ordered departures.^[5]  Diplomatic or other considerations may make the use of the term NEO inadvisable and require the use of other terms for the operation instead.  An authorized departure normally refers to a situation where noncombatants (to include military dependents and nonessential DoD civilians and their families) are permitted to depart the areas at government expense in advance of normal rotations.  An ordered departure, which may or may not include DoD assistance, is refers to when U.S. citizens with a connection to the military or government are ordered to leave the country.  Of note, private U.S. citizens may not be ordered to depart a country, but may be offered evacuation assistance by the U.S. government.

1.    U.S. citizens who may be ordered to evacuate by competent authority include:^[6]

a.    Civilian employees of U.S. government agencies and their dependents, except that category as explained in 2a below (who can be assisted but typically not ordered); and

b.    Military personnel of the U.S. armed forces and their dependents.

2.    U.S. (and non-U.S.) citizens who may be authorized and/or eligible for assistance (but not necessarily ordered to evacuate) by competent authority include:

a.    Civilian employees of U.S. government agencies and their dependents, who are residents in the country concerned on their own volition, but express the willingness to be evacuated;

b.    Private U.S. citizens and their dependents;^[7]

c.    Military personnel and dependents of members of the armed forces of the United States not under COM authority, short of an ordered evacuation; and

d.    Other designated personnel, including dependents of U.S. government civilian employees, and U.S. military personnel that do not fall into categories 1a and 1b, such as HN civilians and third country nationals whose lives are in danger.

II.  Dod NEO PLANNING responsibilities and CONSIDERATIONS

A.   DoD Planning and Preparation.  NEO operations typically require rapid responses and therefore rely on as much planning in advance as possible.  Though DoS has overall planning responsibility for NEOs, due to the complexity of NEO operations and the U.S. interests involved, DoD retains significant duties in worldwide planning.  Most of these planning responsibilities reside with the respective Combatant Command (CCMD).^[8]

1.    Assisting DoS representatives in the preparation of embassy emergency action plans.  Ensuring these plans are updated annually, that they adequately account for U.S. military facilities and personnel, and that they are properly distributed to subordinate military commands and other DoD entities.

2.    Monitoring the capability and willingness of HN authorities to provide adequate protection for U.S. noncombatants.  Relatedly, monitoring the local hostilities or civil disturbances that may endanger U.S. citizens.

3.    Ensuring adequate provisions are made for the evacuation of all DoD noncombatants and, when appropriate, military personnel.^[9]  This includes contingencies for early return of dependents, voluntary authorized departures, voluntary assisted departures, and a NEO.  In appropriate circumstances, SECDEF may authorize the evacuation of DoD noncombatants after consultation with the SECSTATE.

4.    Preparing evacuation and protection capabilities, including transportation/lift requirements.  Similarly, ensuring the availability of relatively safe holding or survival areas for staging evacuees during emergencies.

5.    Exercising plans and capabilities as appropriate.  This includes, in appropriate locations, conducting volunteer-based exercises to prepare for a NEO.  In these situations, family members of military and DoD civilians (to include those DoD civilians who are not in positions designated as “emergency essential”) are highly encouraged to participate to prepare for a potential NEO.  Invited contractors, technical representatives, retirees, and their families are all encouraged to participate as well.

B.    Issues for Judge Advocates in Planning and Preparation.  Joint Publication 3-68 directs commanders to ensure Judge Advocates fully participate in all aspects of NEO planning and perform a legal review on all operational planning products, warning orders, commander’s estimates, ROE, operation orders, execute orders, and other operational guidance to ensure compliance with applicable law and regulations.^[10]  However, Judge Advocates often will only get deeply involved in NEO planning during an exercise or in response to a rising threat in a particular HN resulting in a warning order or similar measure.  As such, it is helpful to prioritize focus areas based on legal issues that have arisen in past NEO planning.

1.    International Agreements.  For a particular country it might not be clear which agreements are applicable or where to find them.  Any existing HN agreements (i.e., Status of Forces Agreement, Defense Cooperation Agreement) need to be reviewed. ^[11]  In addition, it is also important to develop an understanding of any agreements with allies that have a presence or at least some citizens present in the HN.  Agreements documenting relationships with Non-Governmental Organizations (NGO) operating in the country and those with countries that would serve as designated safe havens could also prove crucial to a successful NEO execution.  If time permits, work to alter or create agreements as needed, but only through DoS, as that function is solely their responsibility.

a.    NEO Initiation and Messaging.  International agreements with partners within the HN might influence a decision to order a NEO or a lesser type of citizen evacuation, and also might affect the terminology used in messaging the evacuation.

b.    Military to Military Engagements.  A decision from each of the participating nations is required before a NEO may be conducted with a multinational force.  However, it might be possible to conduct military to military engagements to facilitate a solely U.S. NEO, as long as no agreements (formal or informal) are initiated.^[12]

c.    Intelligence Sharing.  Whether a NEO is a combined or U.S. only operation, it is inevitable that the sharing of intelligence data with allies will occur.  This is especially true if it is undertaken in a country where the U.S. military does not have as many assets as some of our allies.^[13]  These allies may have trusted sources on the ground with valuable information for the safe and efficient execution of a NEO.  To the extent possible, decisions on the sharing of intelligence should be negotiated in advance of military deployment to the HN.

2.    SOPs, Execute Orders, and Tasking Orders.  Judge Advocates need to clear up potential ambiguities and conflicts before execution.  Ensure, to the extent possible, that all activities along the evacuation route are clearly delineated between those performed by DoS personnel and those performed by the Joint Task Force (JTF).  DoS and Embassy staff are responsible for verifying the eligibility of evacuees, and they should conduct screenings at the Evacuation Control Centers (ECC).  However, if dictated by the operating environment, the JTF should be prepared to perform functions that are normally executed by the DoS.  Often issues arise related to DoD noncombatants.

a.    Identification.  Determine what other forms of identification (in addition to U.S. passports and military I.D. cards) are acceptable to DoS in identifying evacuees as U.S. citizens.  Incorporate criteria into unit training SOPs.  Non-U.S. citizen dependent spouses and other non-U.S. family members can complicate processing.  During recent NEO exercises in the Philippines, procedures for processing alien family members of U.S. citizens were not well defined.  Unit SOPs called for evacuees to be categorized as either U.S. or non-U.S. citizens, and as customary, families were to remain together.  Evacuees often will not bring passports, making identification of non-U.S. citizens problematic.  Non-U.S. citizen dependent spouses should always be considered legitimate evacuees, if it is permissible to identify them by their dependent I.D. card that will likely be easier and more efficient for prioritizing their evacuation status.

b.    Pre-Categorizing Eligible Evacuees.  As noted above, family members of U.S. citizens should receive the same evacuation priority as their sponsors and remain together throughout the evacuation.  But the definition of a family member must be clear.  There also needs to be a plan in place, both from a processing and messaging standpoint, for extended family members that do not qualify for either evacuation or prioritization in the same category as the rest of their family.  Moreover, the “others eligible” or “designated other persons” evacuee category is usually controversial.  These should be negotiated and designated in advance by DoS for inclusion in the emergency action plan or what is called the F-77 report.[14]  These eligibility designations need to be validated and analyzed for any issues that could arise with DoD civilians, dependents, or other classes of eligible evacuees.

III.  COMMAND AND CONTROL during neo execution

A.   DoD Role in Executing Military Assisted NEO.  The foundational reference is the Memorandum of Agreement (MOA) between DoS and DoD entered into on 14 July 1998, which established their “respective roles and responsibilities regarding the protection and evacuation of U.S. citizens and nationals and designated other persons from threatened areas overseas.”^[15]  This MOA affirmed that DoS holds overall responsibility within the U.S. interagency for NEO, except that DoD has responsibility for NEO from the U.S. Naval Base, Guantanamo.^[16]

1.    Execution by Joint Force Commander (JFC).  The MOA also enumerates that once the decision has been made to use military personnel and equipment to assist in the implementation of a NEO, the military commander is solely responsible for conducting the operation.[17]  This responsibility will normally be vested in a JFC appointed by the responsible CCMD.[18]

2.    Unique DoD Command and Control Framework.  Unlike DoD support to DoS and U.S. Agency for International Development (USAID) during a Foreign Disaster Relief (FDR) operation, DoD assumes the lead in the actual execution of the NEO once DoD is called upon and correspondingly approved.  DoS is not the on-scene manager during the operation.

3.    DoS Coordination Still Required During Execution.  However, as the MOA also makes clear, the military commander must conduct the NEO in coordination with and under policies established by COM or principal DoS representative to the HN, except to the extent delays in communication would make it impossible to do so.^[19]

4.    Additional Interagency Coordinating Responsibilities.  The Secretaries of the Military Departments also appoint a member from their respective service to the Washington Liaison Group (WLG), which is discussed more below.  The Chairman of the Joint Chiefs of Staff (CJCS) appoints a CJCS representative to the WLG.  Respective CCMD staffs represent DoD on each of the Regional Liaison Groups (RLG).

B.    U.S. Government Interagency Response Framework.  A NEO involves whole-of-government efforts, depending on the particular circumstances surrounding the evacuation.  When a U.S. ambassador obtains the approval of the Under Secretary of State for Management and authorizes the departure of designated personnel, the following command and control elements will be relied upon.^[20]

1.    The Chief of Mission (COM) or principal officer of the DoS.  Within the HN this individual serves as the lead official responsible for the evacuation of all U.S. noncombatants, including DoD dependents, with the caveat that this authority does not extend to uniformed personnel of the U.S. armed forces and designated emergency-essential DoD civilians who are not under the authority of the U.S. Diplomatic Mission.^[21]

2.    Washington Liaison Group (WLG).  SECSTATE and SECDEF are responsible for an established WLG, chaired by the DoS representative, to ensure national level coordination of the work of their departments in fulfilling their responsibilities for protection and evacuation of U.S. citizens abroad.^[22]

a.    WLG membership consists of representatives from the DoS and DoD.  “The WLG may invite representatives of such other departments and agencies of the U.S. government (e.g., Department of Health and Human Services, Agency for International Development, etc.,) to participate in or attend as observers its meetings when appropriate and useful.”^[23]

b.    The WLG also monitors activities of Regional Liaison Groups (RLG).

3.    Regional Liaison Groups (RLG).^[24]  SECSTATE and SECDEF are responsible for established RLGs collocated with CCMDs as necessary to ensure coordination of emergency and evacuation planning.  Each RLG is chaired by a DoS representative and includes representatives from the appropriate CCMD staff, as well as other departments and agencies when appropriate and useful.  The chairperson of each RLG receives instructions from the SECSTATE, and the military members receive their instructions from the SECDEF through the relevant CCMD.  The RLG performs the following functions:

a.    Provides support to officials at diplomatic and consular posts and military commands within the relevant region by serving as a liaison between the WLG, military commands, and diplomatic posts.

b.    Assists diplomatic posts and appropriate military commands in planning for evacuation and/or in-place protection of U.S. citizens and nationals, and other designated persons in an emergency.

c.    Reviews emergency action plans created by the diplomatic posts and forwards them to the DoS for approval and distribution.

4.    Guidance on Interagency Coordination and Cost Sharing.  The MOA includes a “Checklist for Increased Interagency Coordination in Crisis/Evacuation Situations” and a DoS/DoD Cost Responsibility Matrix with definitions.  Under the matrix, DoS is responsible for “Evacuation Related Costs” and DoD is responsible for “Protection Related Costs.”^[25]  This cost sharing guidance does not have adequate depth for many of today’s missions.  For example, it does not contemplate a NEO undertaken in the context of FDR operations.  The MOA is focused on a protection type mission where U.S. citizens are evacuated from areas where combat is ongoing or anticipated.  More granular administrative issues like reimbursement to DoD for services such as billeting and messing are not covered by any doctrine.  Hence negotiation of cost sharing issues related to evacuation is often required as the mission unfolds.  This can cause confusion and hesitation as commanders assume risk associated with expending Operations and Maintenance (O&M) funds without any promise of reimbursement by DoS.^[26]

IV.  LEGAL ISSUES INVOLVED IN the execution of neo

A.   International Law and Use of Force.  A NEO will fall into one of three operational environments:  permissive, hostile or non-permissive, or uncertain.  The non-permissive and uncertain environments raise the majority of legal issues because the receptiveness of the HN to the U.S. NEO are ambiguous or even opposed.^[27]  In situations where a NEO may intrude into the territorial sovereignty of a nation (and the nation will not give consent), then a legal basis is required.  Judge Advocates must be proactive in forming a consensus on the legal basis for the NEO and analyzing how the legal basis effects other obligations, if any.  In particular, the legal basis could have consequences for agreements with other nations in the event the NEO has a multinational character.  While there may not be international consensus on the legal basis to use armed forces for the purpose of NEO, the most common bases are:

1.    Custom and Practice (pre-U.N. Charter) allowed NEO.  In this regard, a nation could intervene to protect its citizens located in other nations when those nations would not or could not protect them.^[28]

2.    U.N. Charter Articles 2(4) and Article 51.  Under Article 2(4), a nation may not threaten or use force “against the territorial integrity or political independence of any state…”  One view holds that NEO are of such a limited duration and purpose that they do not rise to the level of force contemplated by Article 2(4).  Another view is that NEO must be permissive, authorized by the U.N. Security Council, or constitute a legitimate act of individual or collective self-defense pursuant to Article 51 of the U.N. Charter or customary international law.^[29]  Article 51 allows for an “inherent right of individual or collective self-defense,” and the majority opinion holds this to include the customary pre-charter practice of intervention to protect citizens.

B.    Sovereignty and Diplomatic Clearance Issues.  Planners need to know the territorial extent of the countries in the operating area.  Absent consent, or the need to act in self-defense under Article 51 of the U.N. Charter, U.S. forces should respect countries’ territorial boundaries when planning NEO ingress and egress routes.^[30]

1.    Extent of Territorial Seas and Airspace.  There is a right of innocent passage through the territorial seas.  Airspace, however, is inviolable.  There is no right of innocent passage for aircraft.  Only “transit passage” allows over-flight over international straits.^[31]

2.    Rights and Duties of Neutral States.  Neighboring states may have concerns that permitting over-flight or staging areas may cause them to lose their “neutrality” with the target state of a hostile or non-permissive NEO.  To the extent that the concept of neutrality applies outside of international armed conflict, such action may jeopardize relations between the relevant countries.  Establishing “safe havens” for noncombatants, however, does not violate neutrality law.  A safe haven is a stopover point where evacuees are initially taken when removed from danger.  They are then taken to their ultimate destination.^[32]

3.    Time Sensitive NEO.  The lack of diplomatic clearances can hold up a time-sensitive NEO.  During Operation Distant Runner, a NEO conducted by EUCOM in the Rwanda/Burundi region in 1994, the Crisis Action Team tried to rapidly facilitate the approval process.^[33]  However, circumstances on the ground delayed the approval process.  For example, no request could be sent until specific, detailed data was available for the flight (e.g., times, aircraft).  Although general information was available early, the specific data was not available until the operation was near execution.  The timing of the operation (over a weekend) also hindered the U.S. embassies’ efforts to obtain approval from HN governments.  If a NEO is time-sensitive, it is important that military planners lean on the embassy and DoS headquarters to devote sufficient staff to resolve issues ahead of execution.

C.    Law of Armed Conflict Considerations.  Under the DoD Law of War Program, it is U.S. policy that all members of the DoD will “comply with the law of war during all armed conflicts, however characterized.  In all other military operations, members of the DoD Components will continue to act consistent with the law of war’s fundamental principles and rules.”^[34]  Therefore, forces executing a NEO are bound by all LOAC responsibilities to the extent they are applicable.  This is the case even when the NEO is not conducted in the context of an armed conflict.

D.   Policy Considerations

1.    Rules of Engagement (ROE).  Refer to Chapter V of this handbook for guidance on Judge Advocate input on creating and training to ROE.  Additionally, a NEO will have unique attributes that affect ROE drafting and implementation, as such the starting point must be Enclosure G of the CJCS Standing Rules of Engagement, which is specific to NEO.  ROE needs to be tailored to support the mission and it must take into account the operating environment.  For a NEO, this typically necessitates ROE reflecting the limited military objectives to be accomplished, and to some extent, assumption of risk on the part of the force in order to protect the overall objective of getting all the evacuees out safely.  Coordination with all NEO stakeholders is essential.

a.    Reference to SOFA and ROE of Marine Corps Security.  Analyze all SOFA or similar documents of the HN, as they provide insights into the security situation, any local security force support, and HN restrictions on weapons or ROE, if any.  The current ROE utilized by the Marine Corps detachment will also be informative and could serve as the foundation of the ROE for the NEO team.

b.    Embassy Coordination.  Though ROE might appear as a tactical level military function for which the JTF Commander has sole responsibility, failure to take into account the advice of the ambassador or COM can lead to serious mistakes.  The ambassador will know details about the security environment, facilities, and egress routes that cannot be gleamed from reading a SOFA.  They will also have knowledge on local sensitives to foreign military forces which may be useful in planning.  Moreover, if the ambassador and embassy staff do not have the same understanding as the military force on hostile intent thresholds, use of Riot Control Agents (RCA), or related ROE nuances, then confusion can create an unacceptable risk to the mission.

c.    Fire Support.  If the NEO takes place in a non-permissive environment ROE for Close Air Support (CAS) or other means of fire support needs to be clarified and disseminated to the military commanders and Ambassador.

d.    Case Study:  Operation Eastern Exit.  During Eastern Exit in Mogadishu in 1991, the ambassador helped provide clear guidance on hostile intent as it related to the embassy compound, directed which security zones within the compound would be withdrawn from rather than resorting to deadly force (should that choice need to be made), and outlined other steps the military team undertook to avoid creating an appearance of intervening in the Somali conflict. ^[35]  The instructions from the ambassador proved critical for the 60-man evacuation force executing the sea-based NEO.  Eastern Exit also demonstrated the importance of emphasizing that engagement is not necessary or even prudent in all situations where sporadic fire is being directed toward the force.  A NEO is an operation for which the force, depending on the operating environment, might need to assume more risk to lessen the risk to the evacuees and mission as a whole.  Despite intermittent harassing fire from outside the embassy compound, the force held their fire during the 17 hours spent on the ground and successfully evacuated 281 people from 30 countries (including 8 ambassadors and 39 Soviet citizens).

2.    Riot Control Agents (RCA).  The use of non-lethal weapons, such as RCAs, by the U.S. military has been a contentious issue since their inception, but may be appropriate for a NEO.^[36]  The Chemical Weapons Convention prohibits the use of RCAs as a “method of warfare,” though that term is not defined.^[37]  The United States ratified the Chemical Weapons Convention subject to the understanding that nothing in the Convention prohibited the use of RCAs in accordance with Executive Order 11850.

a.    The United States considers the prohibition on the use of RCAs as a “method of warfare” to apply in international and non-international armed conflict.  U.S. policy allows the use of RCA in non-armed conflict and defensive situations, to include “rescue of hostages.”^[38]

b.    Use of RCAs during a NEO may be authorized by SECDEF, or in limited circumstances, by the respective CCMD.  Authorization to use RCAs would normally be requested as a supplemental ROE under the SROE.^[39]

c.    Use of RCAs can be useful during a NEO.  For example, during Operation Assured Response (Liberia, 1996), the use of RCAs (CS gas, pepper gas, and illumination rounds) was authorized.^[40]

E.    Status and Treatment of Civilians.   In a NEO, commanders will face a multitude of legal issues regarding the civilians encountered on the ground.  The embassy evacuation plans may not provide for the embassy site to be a primary assembly area or evacuation site.  However, experience shows that during times of crisis large numbers of U.S. citizens, citizens of the HN, and even nationals of other countries congregate on or near the embassy compound because it is perceived as secure.  Plans must incorporate crowd management and treatment of civilians encountered during a NEO, both as potential security threats to the embassy and as evacuees.

1.    Terminology.  One of the first issues to resolve will be how to properly refer to the civilians who have been affected by the crisis.  Certain words can have specific legal consequences.  For example, referring to someone as a refugee or a migrant, or in any way implying or stating that they have been granted asylum, can confuse the situation and create a basis for a claim of additional legal or political rights.  The best practice is to refer to them using terms which do not impart legal status, such as internally displaced persons (IDPs) or affected persons, and ensure that the JTF Commander and any public affairs officers (PAOs) use those terms as well.  At the same time, particular legal language is sometimes necessary to trigger entitlements and fiscal authorities under U.S. domestic regulations, so there has to be a balance.  These terms need to be deliberately decided upon early. ^[41]

2.    Civilians Seeking Refuge:  Temporary Refuge v. Asylum.  U.S. commanders may not grant political asylum to foreign nationals, and should refer such requests to the DoS to handle through appropriate channels.  U.S. commanders may, however, offer temporary refuge in emergencies under conditions of urgency to secure the life or safety of that person against imminent danger.^[42]  The best practice is to immediately socialize the issue to the DoS representative at the Embassy in the country being evacuated, if time permits.

3.    Detainee Treatment.  A NEO will not include a detention mission.  However, in any contingency operation there must be guidance on detaining, caring for, and releasing/transferring those persons that interfere with the mission and/or pose a security threat.  This guidance could be contained within the ROE or in a separate fragmentary order.  After consultations with the embassy and the CCMD, guidance should be issued clarifying that traditional military detention will not be conducted, that anyone temporarily detained must be safeguarded humanely, and how temporary detainees will be transferred to local authorities or released.^[43]  If temporary detainees are going to be turned over to the HN, the embassy should negotiate the disposition of the detainee and facilitate the transfer.^[44]  In the event the local authorities do not have the capability to accept transfer or if the circumstances justifying the detention cease, then U.S. policy is that such persons shall be released with the minimum delay possible, unless circumstances justify holding longer in order to effectuate safe and orderly release.^[45]

4.    Status of U.S. Embassy Premises.  As NEO activities usually involve actions at an embassy or a consulate, it is important to understand the special status of embassy property.

a.    The Vienna Convention on Diplomatic Relations.  The status of the premises may depend on whether the mission is an embassy or a consulate, whether the U.S. owns the property or leases it, and whether the HN is a signatory to the Vienna Convention on Diplomatic Relations. ^[46]  If the mission is an embassy in a foreign country that is a signatory to the convention, the premises of the mission are inviolable, meaning “The agents of the receiving State may not enter them, except with the consent of the head of mission . . .  the mission shall be immune from search, requisition, attachment or execution.”^[47]

b.    The Foreign Missions Act.  Even if these conditions are not met, the premises are usually inviolable anyway due to reciprocal agreements with countries under U.S. legislation that establishes procedures for reciprocal agreements to provide for the inviolability of diplomatic missions.^[48]  Most countries have a mission in the United States and thus wish to benefit from a reciprocal relation of inviolability.

5.    Search of Evacuees and Their Luggage.  Though embassy staff are responsible for screening at the evacuation centers, DoD might be required to assist, particularly if the NEO is rapid.  For security reasons, baggage will be searched for firearms, explosives, ammunition, or items declared to be restricted items.

a.    Search of Accredited Diplomats.  In accordance with the Vienna Convention on Diplomatic Relations, the persons, property, papers, and families of accredited foreign diplomats authorized passage to the U.S. are exempt from search.  However, even with accredited diplomatic personnel, luggage may be inspected if reasonable grounds exist to suspect that luggage contains restricted items.^[49]  An “accredited” diplomatic bag retains absolute inviolability.^[50]

b.    Female Searches.  Male military personnel are normally reluctant to conduct detailed searches of female evacuees or detainees; there could also be sensitivities in the HN to males performing searches on females.  DoS might have a shortage of female personnel needed to search female evacuees, children, and disabled individuals.  Military personnel should be available to augment DoS in these searches.  During DoD exercises this function is normally conducted by female medical personnel.

F.    Management and Administrative Issues Related to Evacuees.  As addressed previously, decisions made early on terminology and the posture of either the NEO or voluntary assisted departure will affect entitlements and determine whether exceptions to travel regulations will need to be authorized.

1.    Travel Benefits, Access to Base, Use of Commissary.  Normally it will be beneficial to try and eliminate arbitrary differences in policy based purely on the category of personnel (military vs. civilian), but there will be situations for which the distinction cannot be overlooked.^[51]  In drafting the orders and memorandum that will effectuate a NEO it is critical to understand the differences early and factor them into the options offered to departing personnel.

a.    Failure to use terms like “safe haven” or “evacuation,” even where the deviation is grounded in logical messaging considerations, could cause fiscal law problems and frustration for evacuees.^[52]

b.    If a NEO involves support of large groups of evacuees (DoD personnel, dependents, contractors, designated foreign nationals) then use of installation commissaries and exchanges will be implicated.^[53]  Some categories of evacuees might be outside the SOFA and prohibited from using these facilities.  If not accounted for in advance, this will require requests to higher for fiscal law decisions and/or policy exceptions.

2.    Claims and Hold-Harmless Agreements.  Particularly when in the context of a larger disaster operation, transportation of civilians could be a mission requirement.   Due to liabilities in the transport of civilians, it will be necessary to document the manifests appropriately and execute hold harmless agreements.  Note also that depending on the platform and service, there will be additional waiver requirements before civilians can ride on military transport (e.g., NATOPS waiver).

3.    Privacy Issues Related to NEO Tracking System (NTS).  Ensure requests for information comport with DoD and service regulations to the extent possible.

G.   Chemical, Biological, Radiological, Nuclear, and High-Yield Explosives (CBRNE) Issues.  If a CBRN mission or related issues exist within a NEO then other U.S. agencies will be involved and a whole host of U.S. laws and regulations will be relevant.  Below are a subset of issues Judge Advocates have worked through in previous operations, but it is by no means exhaustive.

1.    Measures of Radiation and Exposure Levels.  The JTF needs to standardize how this will be done prior to the deployment.  The JTF personnel need to be reassured with accurate and understandable information on the effects of any radiation exposure.  Initially during Operation Tomodachi, radiation exposure was measured and communicated using several different units, creating confusion and uncertainty. ^[54]   Soon after, exposure levels were standardized and based on Code of Federal Regulations Title 10, Section 20.  Personnel were also provided with a radiation comparison chart and directed on appropriate precautions.  If personnel were exposed to radiation they would be medically screened for continued duty.

2.    Force Protection.  Under certain circumstances, such as a radioactive disaster or disease outbreak, it may be necessary to establish additional force protection policies, such as quarantine and decontamination.

3.    Authority to Transport Contaminated Evacuees.  Check with TRANSCOM for updated guidance on transportation of contaminated people via aircraft.  Travel aboard aircraft may cause the aircraft to likewise become contaminated.  The general rule is that a person must be decontaminated before boarding a military aircraft.  However, during a rapid, non-permissive NEO there may be no time to decontaminate evacuees.

4.    Entry into U.S. Territory.  Another contamination issue concerns where a potentially contaminated aircraft can land upon returning to the United States.  Department of Health and Human Services has repatriation agreements with each State.  Those agreements authorize noncombatant evacuees to land at certain airports.  However, States can quarantine a contaminated person and prevent them from traveling outside the airport (because of their public safety power).  For this reason, the plan might call for the aircraft to land on a federal installation.

5.    Medical Recording.  Failure to share information with Veterans Administration may lead to problems when processing future claims.  All personnel entering an “area of radiation” exposure should have a medical record entry indicating dates within the exposure area.  An accurate recording of exposure is critical for mission accomplishment and long-term health care.