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APPENDIX G

NEO LEGAL GUIDELINES

INTERNATIONAL AND DOMESTIC LAW

This appendix provides guidance for handling legal matters that may arise during an NEO. The JTF commander should have a legal advisor attached to his staff to advise on legal matters, both military and international. Further, the commanders of the evacuation ISB, and safehaven forces should have legal advisors attached to their staffs.

There are significant legal implications in the use of PSYOP against certain groups of people. The PSYOP representative in the advance party advises the commander on the legal aspects of PSYOP employment in the operation. Thereafter, if deployed, the PSYOP legal support team advises the commander.

Commanders must ensure that personnel under their command are aware of and abide by the standards imposed by the Law of Land Warfare, as well as the provisions of the operation's ROE. All violations should be reported and investigated immediately. JTF commanders establish procedures and policies for reporting and investigating violations. The commander should notify the embassy of a suspected violation within 24 hours of its occurrence.

If a foreign diplomat accredited to the United States is processed for evacuation he will be entitled to special treatment in accordance with international law. Specifically, his person, papers, and personal effects will not be searched, detained, or seized. The members of his family forming part of his household are entitled to the same immunity from search, detention, or seizure unless they are citizens of the United States. The diplomatic bag of a diplomatic courier from a foreign state accredited to the United States or to a third state shall likewise be inviolate and immune from any search, inspection, detention, or seizure by US personnel. US military commanders may not grant political asylum to any foreign national. They may grant temporary refuge under emergency conditions when there is imminent danger to the safety, health, or life of any person, in accordance with AR 550-1. Requests for asylum should be referred to the embassy.

All civilian detainees will be treated in accordance with international law and the ROE.

Department of State retains the responsibility to conduct all negotiations with the host nation. The commander's legal advisor should establish and maintain close coordination with the embassy.

Status of forces agreements between the HN and the United States should be reviewed to ensure they apply to the current situation. If necessary, they should be modified prior to the force's arrival. If no agreement exists, the embassy may negotiate a temporary agreement with the HN covering criminal jurisdiction, procurement, customs, and other legal matters.

All US citizens employed by the US government will be evacuated, if ordered. If evacuation is refused, the case should be referred to the embassy. US citizens not employed by the US government cannot be forced to evacuate. If these individuals refuse to evacuate, the marshaling team obtains their signatures on Waivers of Evacuation Opportunity, which will be forwarded to the embassy.

Noncombatants will not carry weapons or contraband on board any US aircraft or vessel and must comply with applicable safety regulations. Persons and personal baggage may be searched and contraband seized. Weapons will be unloaded and, if approved by embassy or customs officials, placed in baggage. No ammunition will be allowed aboard any aircraft. This prohibition does not apply to military or other US government personnel required to carry weapons in the performance of their current duties. The aircraft commander may, however, require that weapons be unloaded and ammunition stored by the crew, depending on the situation.

US military personnel will not take, retain, confiscate, or seize war trophies, including firearms, equipment, uniforms, or other paraphernalia.

All military justice matters should be deferred until the unit redeploys.

USE OF DEADLY FORCE

Commanders may use nondeadly force to control disturbances, prevent crimes, and apprehend persons who have committed crimes. The degree of force must be no greater than that reasonably necessary under the circumstances. Deadly force may be used only in extreme cases where necessary to prevent death or serious bodily harm. Deadly force is used when lesser means have been exhausted or are unavailable. Taking care to minimize the risk to bystanders, commanders may use deadly force--

  • In self-defense to avoid death or serious bodily harm.

  • To prevent a crime involving substantial risk of death or bodily harm to self or others.

  • To prevent destruction of property designated by the commander as vital to public health and safety.

  • To detain or retain persons who, during the act of escaping, present a clear threat to the lives and safety of other persons.

Every soldier has the right to use reasonable force to defend himself. These limitations do not infringe upon those rights. However, unless an attack is directed solely against him, he must act as part of his unit according to the guidance of his immediate supervisor.

The following factors must be considered in the employment of deadly force:

  • CINCs and, subsequently, JTF commanders may delegate the authority to authorize use of deadly force.

  • Targets for deadly force must be addressed selectively and with precision to avoid injuring innocent bystanders.

  • When possible, a clear warning should precede deadly force.

  • Warning shots should not be employed. This will minimize the possibility of injuring bystanders with stray shots.

  • Although soldiers may be authorized to carry ammunition, weapons should not be loaded unless the specific situation dictates otherwise. A loaded weapon adds to the tension in already tense situations. Commanders must maintain positive control over the use of weapons.

STATUS OF DETAINEES

The embassy should determine status of detainees in advance of deployment. In the absence of this determination, in accordance with the Geneva Conventions, hostile force detainees should have the same rights as EPWs. Any persons actively detained by US forces in an attempt to deter or in response to hostile action will have the same rights as EPWs. The embassy, with the host nation, negotiates the disposition of detainees.

CLAIMS

All evacuees not employed by the US government must sign a Waiver of Claims for Damage and Injury. If the evacuee refuses to sign, the commander should note this on the waiver form and continue with his mission.

The embassy retains jurisdiction over claims if the force is to remain in country for less than 30 days. If the force is to remain longer than 30 days, a local, single service claims office may be required to process claims. US claims officers have no authority to settle claims against the government by foreign nationals, but commanders must appoint claims investigating officers to investigate any claim presented within their area of operation. A foreign claims commission, in coordination with the embassy, will settle these claims.

The servicing judge advocate settles claims by soldiers. Soldiers must be discouraged from taking high-value items into the area of operation. Commanders must provide adequate security for personal belongings at home station prior to deployment.

Commanders should ensure that serious incident or MP reports are made, if appropriate, concerning potential claim situations.



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