Afghanistan and Noncombatant Evacuation Operations
Last month, President Biden announced the U.S. military mission in Afghanistan would officially conclude by August 31, 2021. Since the drawdown of U.S. and other international forces from Afghanistan began in May, the Taliban has made rapid gains across the country, sparking fears of a Taliban resurgence. Taliban forces have seized control of nearly half the districts in Afghanistan, and the southern city of Lashkar Gah, the capital of Helmand Province, is currently in danger of falling to insurgents. If captured, it would be the first provincial capital seized by the Taliban since 2016.
The deteriorating security situation has raised concerns over the safety of Americans who remain in the country after the August 31st deadline. The United States will maintain a diplomatic presence at the U.S. Embassy in Kabul, as well as a contingent of military personnel to provide security for the embassy. Other U.S. citizens and nationals are also likely to remain in the country following the withdrawal.
In case conditions worsen and the evacuation of U.S. persons from Afghanistan becomes necessary, the United States could initiate a noncombatant evacuation operation to remove U.S. citizens, U.S. nationals, and other designated persons to safety. Such an operation could raise use of force concerns, particularly if conducted in a hostile or uncertain environment as could be the case in Afghanistan. Given the potential for an evacuation, this post briefly explores some use of force and other legal issues associated with noncombatant evacuation operations.
In the event of an emergency abroad, the United States is committed to protecting and evacuating U.S. persons and potentially other nationals when necessary and feasible. The Chief of Mission—the most senior Department of State official assigned in a host nation, often the U.S. ambassador—serves as the lead federal official for the protection and evacuation of U.S. noncombatant evacuees. When requested by the State Department or Chief of Mission, DoD is responsible for conducting noncombatant evacuation operations, sometimes referred to as NEOs, in threatened areas overseas.
Under a memorandum of agreement between the State Department and DoD, the Secretary of State can request the Secretary of Defense “to make available military personnel and equipment to assist in an evacuation during crisis situations.” In an emergency, such as when hostilities arise suddenly or appear imminent, the Chief of Mission may invoke an emergency evacuation plan and request assistance from the appropriate military commander while simultaneously informing the State Department. Once the decision to use military personnel and equipment to evacuate noncombatants has been made, DoD is responsible for executing the evacuation in consultation with the Chief of Mission.
As the President’s personal representative to a host nation government and the senior U.S. Government official in-country, the Chief of Mission wields broad decision-making authority during times of crisis. Among other decisions, the Chief of Mission may determine when personnel should be evacuated from the host nation. The Chairman of the Joint Chiefs of Staff’s Joint Publication 3-68 on noncombatant evacuation operations observes, “The decision to evacuate a US embassy is diplomatic and/or political and threat driven and is, therefore, retained by the COM.” The joint publication further explains that “[d]uring NEOs, the COM, and not the geographic combatant commander (GCC) or the subordinate joint force commander (JFC), is the senior [U.S. Government] authority for the evacuation and, as such, is ultimately responsible for the successful completion of the NEO and the safety of the evacuees.
The joint publication cautions that rules of engagement should be established well ahead of any NEO and should provide “maximum flexibility so as not to unduly restrain the use of force.” As the United States updates its evacuation plans for Afghanistan (see, for example, here and here), the rules of engagement for a potential NEO in Afghanistan are likely being revised as well.
The substance of any rules of engagement applicable to a NEO in Afghanistan will depend on conditions in the country at the time of the operation. Generally speaking, a NEO may take place in a variety of operational environments—from permissive to hostile to uncertain.
A permissive environment is one in which the host nation military and law enforcement agencies have control and do not resist evacuation operations by U.S. forces (JP 3-68, p IV-14). A hostile or nonpermissive environment is one in which host nation or other forces oppose the evacuation and may seek to prevent the departure of evacuees. Hostile environments include situations of civil disorder, terrorist activity, or actual armed conflict. Lastly, an uncertain operational environment, as defined by Joint Publication 3-68, is one in which host nation forces, whether supportive of or opposed to evacuation operations, “do not have total effective control of the [host nation] territory and population in the intended operational area” (JP 3-68, p IV-14). An uncertain operational environment may also result from ambiguity regarding a host nation’s support for a U.S. NEO (OPLAW Handbook, p 315).
Of course, all NEOs, including those planned for permissive environments, take place in circumstances replete with uncertainty. As one author has noted, “the fact that an evacuation is deemed necessary suggests the likelihood that hostilities will exist in the area of operations.” Evacuation operations in hostile and uncertain environments are likely to raise the most legal issues and require deliberate and thoughtful planning.
International Law Justification
The Operational Law Handbook published by the Army Judge Advocate General’s School cautions, “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” (OPLAW Handbook, p 315). Prior to adoption of the UN Charter in 1945, the right of a State to protect its nationals abroad was widely accepted (see, for example, here and here). Article 2(4) of the UN Charter’s prohibition against uses of force, however, complicated the outlook for evacuation operations. Article 2(4) broadly requires that States refrain from “the threat or use of force against the territorial integrity or political independence of any state.” In light of this provision, many States have suggested that Article 2(4) does not except a State’s protection of its nationals abroad from the general prohibition against the use of force.
Nevertheless, various rationales have been employed to justify the execution of NEOs. Uncontroversial bases include the securing of host nation consent and authorization by the UN Security Council. Alternatively, because the use of force to protect nationals abroad does not impinge on the “territorial integrity or political independence” of a State, some have argued that a NEO does not implicate Article 2(4) (Green p 9). In other words, a NEO is not actually a prohibited use of force by the terms of Article 2(4).
NEOs have also been justified as a matter of self-defense. Article 51 of the UN Charter provides that nothing “shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” Under this view, the “inherent” right of self-defense acknowledged by the UN Charter encompasses a pre-Charter understanding of self-defense that recognized the protection of nationals abroad.
Andrew Thomson’s examination of the doctrine of the protection of nationals abroad agrees that a State’s right to protect its nationals abroad falls within the ambit of self-defense, provided three conditions are met: (1) the existence of “an imminent threat of injury to nationals,” (2) “a failure or inability on the part of the territorial sovereign to protect them,” and (3) the strict confinement of protective measures to the object of protecting nationals against injury. Thomson further observes that while some States explicitly recognize self-defense as a legal basis for conducting NEOs, U.S. NEO doctrine “does not specify the legal basis for entry into host nations where there is no consent or United Nations Security Council resolutions” (Thomson, pp 656-657).
U.S. citizens, U.S. nationals, and designated other persons may be the subject of evacuation during a NEO. Under U.S. policy, the State Department may order the departure of U.S. government personnel and their dependents (JP 3-68, III-1). The State Department, however, may not order the evacuation of members of the Armed Forces, DoD civilians not under the authority of the COM, or private U.S. citizens, though private citizens may be extended evacuation assistance.
Designated other persons may include host nation and third country nationals. In the event of a NEO in Afghanistan, some Afghan nationals would presumably be eligible for evacuation. The United States has already begun relocating some Afghan nationals and their families from Afghanistan to other overseas location. The effort, known was Operation Allies Refuge, is intended to support the relocation of Afghans eligible for Special Immigrant Visas. Under the program, as many as 70,000 people could be transferred to other countries to await visa processing. If the need for a NEO were to arise, those eligible for support under Operation Allies Refuge could also be designated for evacuation.
Some Operational Law Considerations
Riot Control Agents
U.S. policy is clear that all members of the DoD will “comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations.” Accordingly, as the OPLAW Handbook explains, “forces executing a NEO are bound by all LOAC responsibilities to the extent they are applicable . . . even when the NEO is not conducted in the context of an armed conflict.” In light of this policy, the use of non-lethal weapons, such as riot control agents, could be problematic. Under the Chemical Weapons Convention, the use of riot control agents as a method of warfare is prohibited (Art I(5)).
The United States, however, ratified the Chemical Weapons Convention with the understanding that the convention does not prohibit the use of riot control agents in accordance with an earlier executive order on chemical herbicides and riot control agents. The DoD Law of War Manual reiterates the U.S. position that the prohibition does not preclude the use of riot control agents “in defensive military modes to save lives” (para 6.16.2; see also here).
In the past, the Standing Rules of Engagement established that the Secretary of Defense or, in some circumstances, the relevant combatant command, could authorize the use of riot control agents during a NEO. Authorization to use riot control agents would normally be requested as a supplemental measure (OPLAW Handbook, p 317). However, as Matt Montazzoli, writing of a different context, recently warned, “ROE that implement [riot control agent] use . . . are inherently complicated and may be difficult for lower-level commanders and soldiers to apply during a fight.” Accordingly, riot control agents should be employed carefully in a NEO.
Terminology should also be used carefully and precisely to avoid confusion over the status of civilians in the NEO’s area of operations. The Operational Law Handbook advises that terms that do not impart legal status, such as “internally displaced person” and “affected person,” should be used to prevent inadvertently bestowing individuals with a status that has not been officially recognized. The handbook explains, “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” (OPLAW Handbook, p 318).
In the context of an Afghanistan NEO, describing Afghan nationals as “migrants” or “refugees” without certainty of their status could give rise to the types of rights claims outlined in the Operational Law Handbook. As noted above, potential evacuees could include Special Immigrant Visa applicants under the Special Immigration Visa program for Afghans. Others who are not eligible for special immigrant status may alternatively seek refugee status. Under the Immigration and Nationality Act, special immigrants and refugees comprise different categories of people, though there is some overlap between the categories. Ultimately, forces engaged in a NEO should avoid these characterizations by using more general terms to describe certain evacuees.
Lastly, a NEO will not include a traditional detention mission, though NEO forces should be prepared to accept detainees and facilitate their transfer or release appropriately. In accordance with U.S. law and policy, all detainees must be treated humanely. The joint publication on NEOs explains that “[a]nyone detained by US forces in an attempt to deter or in response to hostile action will be provided with the protections of the Geneva Convention Relative to the Treatment of Prisoners of War of 1949, until some other legal status is determined by competent authority” (JP 3-68, p B-2). The Operational Law Handbook states that anyone temporarily detained must be transferred to local authorities or released (OPLAW Handbook, p 318). If local authorities are incapable of accepting the transfer or if the reason for the detention ceases, the temporary detainee must be released “with the minimum delay possible” or until a safe and orderly release can be effectuated.
Recent gains by the Taliban have led to growing unease about the safety of Americans and others remaining in Afghanistan. Though the U.S. Embassy in Kabul continues to operate as normal, the option of a NEO would be available if the situation were to deteriorate.
U.S. joint doctrine cautions that diplomatic and other considerations may militate against use the term “NEO.” Whatever such an operation might be called, U.S. forces should be prepared to consider among other things the use of riot control agents, the significance of terminology, and detainee treatment obligations in the context of a noncombatant evacuation should one become necessary in Afghanistan.
 The DoS-DoD memorandum of agreement recognizes an exception for NEOs conducted from Naval Station Guantanamo Bay. Under the agreement, the Secretary of Defense has primary responsibility for the evacuation of all noncombatant U.S. citizens, U.S. nationals, and other designated persons from Guantanamo Bay.