Discipline, force protection and arming in theater

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1. Host nation and third country law

Under 32 CFR 158.5, Defense component heads must follow applicable laws, regulations, international agreements and Defense policy as they relate to contractor personnel supporting applicable operations (32 CFR 158.5(f)(2)). All contractor personnel must comply with applicable host nation and third country laws (32 CFR 158.5(f)(2)(i)). How those laws apply may be affected by international agreements, such as agreements between the United States and the host nation, and by customary international law. Customary international law, for example, may limit the reach of third country laws.

Contractor personnel hired by the United States, the host nation or other countries may change status depending on where in the area of responsibility their employers or contracts assign them to work (32 CFR 158.5(f)(2)(i)(A)). A worker may, for example, move into the group of contractors authorized to accompany the force (CAAF). Combatant commanders, subordinate and service component commanders, and directors of Defense agencies and field activities should recognize limiting factors on employing local national and third country national personnel (32 CFR 158.5(f)(2)(i)(B)). The rule gives eight examples, without limiting the list. They are imported labor permits, workforce and hour restrictions, medical, life and disability insurance coverage, and taxes, customs and duties. The others are cost of living allowances, hardship differentials, access to classified information and hazardous duty pay.

2. Conduct and the contracting officer’s representative

Contract terms must require CAAF to comply with combatant commander theater orders and applicable directives, laws and regulations (32 CFR 158.5(l)(1)). Non-CAAF who need base access to perform must follow base force protection and security procedures, as applicable. The contracting officer may appoint a designee, usually a contracting officer’s representative, as liaison with the contractor and the requiring activity (32 CFR 158.5(l)(1)(i)). That designee monitors and reports contractor performance and requiring activity concerns to the contracting officer.

In emergencies, such as enemy or terrorist action or natural disaster, the military commander may recommend or issue warnings urging contractor personnel to move out of harm’s way or take other self-protective measures (32 CFR 158.5(l)(1)(i)). During armed conflict, contractor personnel are not exempt from commanders’ authority to control the movement of persons and vehicles in the immediate vicinity of operations.

3. Discipline and removal

The contractor is responsible for disciplining contractor personnel as necessary and appropriate (32 CFR 158.5(l)(1)(ii)). However, the contracting officer may require the contractor to remove and replace, at the contractor’s expense, personnel who jeopardize or interfere with the mission. The same applies to personnel who threaten force protection measures or who fail to comply with or violate contract requirements. Removal may extend to personnel whose actual field performance, measured by certification or professional standard, is below the contractual requirement (32 CFR 158.5(l)(1)(ii)(A)).

Such action may be taken at the government’s discretion without prejudice to the contractor’s other rights under the contract (32 CFR 158.5(l)(1)(ii)(B)). A commander may also take certain actions affecting contractor personnel, such as revoking or suspending security access or restricting access to installations or worksites. When an investigation concerns offenses allegedly committed by or against contractor personnel, investigators keep the contracting officer informed if the offense may affect contract performance (32 CFR 158.5(l)(1)(v)). They do so to the extent possible without compromising the investigation.

4. Force protection

Combatant commanders must include contractor personnel in their force protection planning and share the results with contracting activities and contractors through the geographic combatant command web page (32 CFR 158.5(l)(2)). In general, contractors are responsible for the security of their own personnel. Contractor personnel working on an American military facility, or close to the armed forces, may incidentally benefit from measures that protect the forces.

Where more security is needed and it is not operationally or cost effective for contractors to provide it individually, the commander may decide it is in the government’s interest to provide security (32 CFR 158.5(l)(2)). When security comes through military means, contractor personnel should receive force protection equal to that of Defense civilian employees.

5. Weapons and arming for self-defense

Contractor personnel are not authorized to possess or carry firearms or ammunition during applicable operations, except as the rule and 32 CFR part 159 provide (32 CFR 158.5(g)(4)). The contract sets the terms governing possession of firearms, and information on all weapons authorized for contractors is entered in the Synchronized Predeployment and Operational Tracker-Enterprise Suite. When the combatant commander finds military force protection and legitimate civil authority unavailable or insufficient, the commander may authorize arming in writing for self-defense only (32 CFR 158.5(l)(2)(i)). The contractor, the armed personnel and the military must then adhere to American, host nation and international law, status of forces and other agreements, and arrangements with local authorities. They must also follow the commander’s rules for the use of force and orders on possession, use, safety and accountability of weapons and ammunition.

Depending on the situation, the contractor may apply case by case for its personnel to be armed for self-defense (32 CFR 158.5(l)(2)(ii)). The combatant commander’s staff judge advocate, or designee, reviews every application to confirm a legal basis for approval. In reviewing applications, commanders apply the criteria for arming private security personnel in 32 CFR part 159. The contractor validates to the contracting officer that the personnel have received weapons familiarization, qualification and briefings on the rules for the use of force (32 CFR 158.5(l)(2)(ii)(A)).

Acceptance of weapons by contractor personnel is voluntary (32 CFR 158.5(l)(2)(ii)(B)). The contract must require contractors to make sure American law does not prohibit their personnel from possessing firearms. Contracts must require all contractor personnel to follow combatant commander and local commander force protection policies (32 CFR 158.5(l)(2)(ii)(C)). When armed for personal protection, personnel may be authorized to use force only for self-defense. Unless an international agreement or customary international law exempts them from local jurisdiction, the contract must state that inappropriate use of force could bring American or host nation prosecution and civil liability.

6. Where criminal jurisdiction fits

The rule’s paragraphs on criminal jurisdiction over contractor personnel are covered with the Military Extraterritorial Jurisdiction Act in criminal jurisdiction over contractors abroad. Arming of private security personnel is covered in arming and accounting for private security personnel.

Key terms

Limiting factors	Examples, from labor permits to hazardous duty pay, of conditions affecting local and third country hires.
Removal and replacement	The contracting officer’s power to direct a contractor to replace personnel at its expense.
Force protection planning	The combatant commander’s planning, which must include contractor personnel.
Self-defense arming	Written authorization to carry weapons only for self-defense, with legal review of contractor applications.
Staff judge advocate review	The legal check on every application to arm contractor personnel.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

How Sentfore supports this

Protective security abroad has to work within these command rules. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Requirements can be sent through the contact page.