Civilians and deployment: the legal basics

TIG Brief: The Inspector General, July-August, 2003 by Gary Leonard, Wayne Wisniewski

Today the Air Force relies on its Total Force of military, civilian and contractor personnel to accomplish a full range of missions.

This creates challenges for commanders, who must determine in advance when and how to deploy civilian employees or contractors. In anticipation of performing tasks on or near the battlefield, the commander must ensure all members of the team are prepared, including noncombatant civilians.

Before considering deployment of contractors and other noncombatant civilians, commanders must first determine whether a military member can perform the function. If it cannot be performed by a military member, next, it must be ensured that the deployment tasks would not conflict, in the case of contractors, with applicable contracts, or, in the case of federal civilian employees, with applicable regulations.

Contracts, new and existing, should be reviewed to identify services provided by contractors required during a crisis; such should be identified in statements of work. See

Deployment Planning and Execution, Air Force Instruction 10-403, March 9, 2001.

The two types of contractor support generally used are:

* Support for weapons systems and information technology equipment maintenance.

* Other support such as transportation of supplies and other nonmaintenance tasks.

Department of Defense Instruction 3020.27, Continuation of Essential DoD Contractor Services During Crises, Jan. 26, 1996, can also assist in fulfilling preparedness responsibilities. The instruction's Enclosure 3 contains guidelines for theater admission procedures and includes such items as: training on standards of conduct, protective gear, ensuring contractors receive proper immunizations, and any cultural awareness training. Geneva Convention identification cards and records of emergency data must be completed for contract personnel. Generally, the card should indicate that the contractor is a contractor employee accompanying the force. Contract personnel may be authorized legal assistance while accompanying the deployed force.

With respect to federal civilian employees, commanders must determine whether the deployment would conflict with applicable regulations. An important source of deployment information for civilian employees is Air Force Pamphlet 10-231, Federal Civilian Deployment Guide, April 1, 1999. An emergency-essential (EE) designation is an important prerequisite. An EE employee is required to sign a position agreement, accepting certain conditions of employment arising out of crises. EE civilian employees should have health assessments annually and must be physically and mentally able to deploy.

Other important sources of information of which both contractors and federal civilian employees should be aware:

* The status of forces agreements (SOFA) with various countries from which operations may be staging from, and

* The Geneva Conventions.

Generally SOFAs govern criminal jurisdiction of military members overseas. The Geneva Convention and many SOFAs distinguish between military and civilian members accompanying the forces and, therefore, they must be read carefully. Moreover, the Military Extraterritorial Jurisdiction Act, which became law in 2000, makes contractor and civilian personnel accompanying the force subject to federal criminal jurisdiction. Contractors and other civilian personnel must be aware of:

* their legal status as noncombatants under international law, and

* those behaviors that would result in their losing such status.

Commanders considering civilian and contractor deployment issues will do well to include the staff judge advocate (SJA), along with a contracting officer and civilian personnel specialist among those from whom they solicit assistance. The base SJA has a staff trained in related issues, with knowledge of the Law of Armed Conflict (LOAC), the Geneva Conventions, the pertinent SOFAs, as well as applicable DoD and Air Force instructions and guidance.

TIG Brief thanks Lt. Col. Jorge Romero of the Office of The Judge Advocate General of the Air Force for his assistance with this article. He is chief, Operations Readiness Branch, International and Operations Law Division.

Col. Gary Leonard, USAFR

Col. Wayne Wisniewski AFIA/JA

wayne.wisniewski@kirtland.af.mil