[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4108 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
2d Session
S. 4108
To enhance protections of civilians during United States military
operations, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 28, 2022
Ms. Warren (for herself, Mr. Durbin, Mr. Merkley, and Mr. Sanders)
introduced the following bill; which was read twice and referred to the
Committee on Armed Services
_______________________________________________________________________
A BILL
To enhance protections of civilians during United States military
operations, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protection of Civilians in Military
Operations Act''.
SEC. 2. SENSE OF CONGRESS.
It is the sense of Congress--
(1) to commend the Department of Defense for its renewed
commitment to preventing and addressing harm to civilians
resulting from United States military operations and work to
develop an action plan to implement meaningful changes to
further prevent and address such harm;
(2) to agree with the Department that harms to civilians is
a tragic and unavoidable part of war, and to recognize that--
(A) the Department endeavors to conduct all
military operations in compliance with the
international law of armed conflict and the laws of the
United States, including distinction, proportionality,
and the requirement to take feasible precautions in
planning and conducting operations to reduce the risk
of harm to civilians and other protected persons and
objects;
(B) the protection of civilians and other protected
persons and objects, in addition to a legal obligation
and a strategic interest, is a moral and ethical
imperative;
(C) despite those commitments, military operations
of the United States and partner countries during the
two decades before the date of the enactment of this
Act have resulted in civilian deaths and injuries, and
damage to or destruction of civilian objects including
critical infrastructure, in at least Afghanistan, Iraq,
Pakistan, Somalia, Syria, and Yemen; and
(D) more must be done to improve the protection of
civilians;
(3) that the Department has submitted to Congress four
successive annual reports on civilian casualties resulting from
United States military operations for calendar years 2017,
2018, 2019, and 2020, and has updated reports as appropriate;
and
(4) to recognize the efforts of the Department, both in
policy and in practice, to reduce the harm to civilians and
other protected persons and objects resulting from United
States military operations, and to encourage the Department to
make additional progress in--
(A) developing at all combatant commands personnel
and offices responsible for advising the commanders of
such commands, and integrating into command strategy,
the promotion of observance of human rights and the
protection of civilians and other protected persons and
objects;
(B) finalizing and implementing the policy of the
Department relating to civilian casualties resulting
from United States military operations, as required by
section 936 of the John S. McCain National Defense
Authorization Act for Fiscal Year 2019 (Public Law 115-
232; 10 U.S.C. 134 note);
(C) finalizing and implementing Department-wide
regulations to implement section 1213 of the National
Defense Authorization for Fiscal Year 2020 (Public Law
116-92; 10 U.S.C. 2731 note), for ex gratia payments
for damage, personal injury, or death that is incident
to the use of force by the United States Armed Forces,
a coalition that includes the United States, a military
organization supporting the United States, or a
military organization supporting the United States or
such coalition; and
(D) professionalizing foreign partner forces to
minimize, mitigate, and respond to harm to civilians,
including in connection with arms transfers, train and
equip programs, advise, assist, accompany, and enable
missions, and fully combined and coalition operations.
SEC. 3. INTEGRITY OF CIVILIAN HARM INVESTIGATIONS.
(a) Investigations by Officers Outside Unit or Chain of Command.--A
commander in the Armed Forces conducting an administrative
investigation, commander directed inquiry, or equivalent investigation
of harms to civilians resulting from a United States military operation
that was undertaken by one or more units under the command of the
commander shall--
(1) to the extent practicable, select as an officer to
conduct such investigation an officer in the Armed Forces
outside of such units or chain of command; or
(2) if selecting an officer outside of such units or chain
of command is not practicable, include an explanation in the
investigative report and submit to the Center of Excellence
described in section 7 a report describing the reasons such a
selection was not practicable.
(b) Separation of Investigative Personnel From Personnel Involved
in Operations.--The military or civilian personnel of the Armed Forces
who conduct an investigation on civilian casualties resulting from a
United States military operation shall, to the extent practicable, be
operationally separate from members of the Armed Forces who were
directly involved in such operation.
(c) Witness Interviews and Site Visitations in Investigations.--
(1) In general.--Each investigation of harm to civilians
resulting from a United States military operation shall, to the
extent practicable, include--
(A) interviews (remotely if necessary) of civilian
survivors and witnesses (after obtaining their informed
consent), including first responders and local medical
authorities, and witnesses that may have moved to other
locations; and
(B) a visit by appropriate members of the United
States Armed Forces to each site at which civilian
casualties were confirmed or reasonably suspected in
connection with such operation.
(2) Interviews or visits by alternative personnel.--If the
Secretary of Defense determines that an interview described in
subparagraph (A) of paragraph (1) or a visit described in
subparagraph (B) of that paragraph is not practicable, the
Secretary shall--
(A) memorialize, in writing, the justification for
such determination;
(B) make every reasonable effort to obtain, as the
case may be--
(i) such an interview; or
(ii) a visit by appropriate military or
civilian personnel of a partner or coalition
military force, or by personnel of the national
government concerned, or a local government,
capable of making such a visit in connection
with the investigation concerned; and
(C) memorialize, in writing--
(i) the results of any interview or visit
under subparagraph (B); or
(ii) if no interview or visit could be
obtained under that subparagraph, the gaps in
evidence in the investigation concerned as a
result of the lack of such an interview or
visit, as the case may be.
(d) Consideration of Civil Society Information.--Each investigation
of harm to civilians resulting from a United States military operation
shall--
(1) to the extent practicable, obtain and incorporate open-
source information and civil society documentation regarding
the possible incident of harm to civilians;
(2) consider all sources of relevant and credible
reporting, including information from public reports and
nongovernmental sources; and
(3) include a reporting mechanism for the receipt and
processing of information received under paragraphs (1) and (2)
that is relevant to the investigation, including online
portals.
SEC. 4. COORDINATION BETWEEN GEOGRAPHIC COMBATANT COMMANDS AND SPECIAL
OPERATIONS COMMAND AND THE DEPARTMENT OF STATE.
(a) In General.--Not later than 180 days after the date of the
enactment of this Act, the Secretary of Defense shall direct each
commander of a geographic combatant command and the Commander of the
United States Special Operations Command to coordinate with the
Department of State to establish and maintain an uninterrupted line of
communication between such commands and the Chief of Mission (or the
Chief's designee) in any country in which any such command is
conducting military operations in order to assist in the response to
reports of harm to civilians resulting from such military operations.
(b) Primary Objective.--The primary objective of the line of
communication under this section shall be to serve as a channel for
fielding and coordinating reports of harm to civilians resulting from
United States military operations undertaken by the command concerned
in the country or operation concerned.
SEC. 5. DATABASE ON REPORTS ON ASSESSMENTS AND INVESTIGATIONS.
(a) Database Required.--Not later than one year after the date of
the enactment of this Act, the Secretary of Defense shall establish and
maintain within the Department of Defense a database that preserves and
organizes reports of the Department on assessments and investigations
of harm to civilians resulting from United States military operations
(including reports under section 1057 of the National Defense
Authorization Act for Fiscal Year 2018), and the status and results of
such assessments and investigations.
(b) Searchability.--The database required by subsection (a) shall
be searchable by personnel across the Department.
(c) Availability to Public.--The public shall have access to, and
be able to search, the database required by subsection (a) through an
internet website of the Department that is available to the public. For
purposes of such access, appropriate information in the database may be
maintained in a classified annex in the interests of the national
security of the United States, and access to such annex appropriately
limited.
(d) Update.--The database required by subsection (a) shall be
updated not less frequently than once every 30 days.
(e) Past Reports on Civilian Harm.--The database required by
subsection (a) shall include, to the extent practicable, any Department
of Defense reports already conducted on assessments and investigations
of harm to civilians resulting from United States military operations
between January 1, 2001, and the date of the enactment of this Act, as
well as any reports conducted retroactively.
SEC. 6. RESOURCES TO IMPLEMENT DEPARTMENT OF DEFENSE POLICY ON CIVILIAN
HARM IN CONNECTION WITH UNITED STATES MILITARY
OPERATIONS.
(a) Purpose.--The purpose of this section is to facilitate
fulfillment of the requirements in section 936 of the John S. McCain
National Defense Authorization Act for Fiscal Year 2019 (Public Law
115-232; 10 U.S.C. 134 note).
(b) Personnel.--Not later than 180 days after the date of the
enactment of this Act, the Secretary of Defense shall do the following:
(1) Add to, and assign within, each of the United States
Central Command, the United States Africa Command, the United
States Special Operations Command, the United States European
Command, the United States Southern Command, the United States
Indo-Pacific Command, and the United States Northern Command
not fewer than two personnel who shall have primary
responsibility for the following in connection with military
operations undertaken by such command:
(A) Providing guidance and oversight relating to
prevention of and response to harm to civilians,
promotion of observance of human rights, and the
protection of civilians and civilian infrastructure,
including ensuring implementation of the policy of the
Department of Defense on harm to civilians resulting
from United States military operations.
(B) Overseeing civilian harm prevention,
mitigation, and response functions on behalf of the
commander of such command.
(C) Receiving reports of harm to civilians and
conducting assessments and investigations relating to
such harm.
(D) Analyzing incidents and trends with respect to
harm to civilians, identifying lessons learned, and
ensuring that lessons learned are incorporated into
updated command guidance and practices.
(E) Offering condolences and amends for harm to
civilians, including ex gratia payments.
(F) Ensuring the integration of activities relating
to civilian harm prevention, mitigation, and response,
the protection of civilians, and promotion of
observance of human rights in security cooperation
activities.
(G) Working with the Center of Excellence
established under section 7.
(H) Consulting with non-governmental organizations
on civilian harm and human rights matters.
(2) Add to, and assign within, the Office of the Under
Secretary of Defense for Policy not fewer than two personnel
who shall have primary responsibility for implementing and
overseeing implementation by the components of the Department
of Defense of Department policy on harm to civilians resulting
from United States military operations.
(3) Add to, and assign within, the Joint Staff not fewer
than two personnel who shall have primary responsibility for
the following:
(A) Overseeing implementation by the components of
the Department of Defense of Department policy on harm
to civilians resulting from United States military
operations.
(B) Developing and sharing in the implementation of
such policy.
(C) Communicating operational guidance on such
policy.
(c) Training, Software, and Other Requirements.--
(1) In general.--In each of fiscal years 2023 through 2025,
the Secretary of Defense and each Secretary of a military
department may obligate and expend, from amounts specified in
paragraph (2), not more than $5,000,000 for the following:
(A) Training related to civilian harm prevention,
mitigation, and response.
(B) Information technology equipment, support and
maintenance, and data storage, in order to implement--
(i) the policy of the Department relating
to harms to civilians resulting from United
States military operations as required by
section 936 of the John S. McCain National
Defense Authorization Act for Fiscal Year 2019;
and
(ii) the database required by section 5.
(2) Funds.--The funds for a fiscal year specified in this
subparagraph are funds as follows:
(A) In the case of the Secretary of Defense,
amounts authorized to be appropriated for such fiscal
year for operation and maintenance, Defense-wide.
(B) In the case of a Secretary of a military
department, amounts authorized to be appropriated for
such fiscal year for operation and maintenance for the
components of the Armed Forces under the jurisdiction
of such Secretary.
SEC. 7. DEPARTMENT OF DEFENSE CENTER OF EXCELLENCE FOR THE PROTECTION
OF CIVILIANS.
(a) In General.--Chapter 4 of title 10, United States Code, is
amended by adding at the end the following new section:
``Sec. 148 Center of Excellence for the Protection of Civilians
``(a) Center of Excellence for the Protection of Civilians.--There
is within the Office of the Secretary of Defense a Center of Excellence
for the Protection of Civilians (in this section referred to as the
`Center').
``(b) Functions and Composition.--The Center shall serve as the
primary organization in the Department of Defense responsible for--
``(1) advising the Secretary of Defense and senior United
States Government officials on efforts to prevent, mitigate,
and respond to harm to civilians during United States military
operations;
``(2) ensuring the full implementation of the Department of
Defense Instruction on Responding to Civilian Harm in Military
Operations and subsequent guidance pertaining to civilian harm
prevention, mitigation, and response;
``(3) conducting regular audits of civilian harm
prevention, mitigation, and response policies and practices
across the Department of Defense, including at the combatant
commands, including alignment of Department policies,
practices, and other guidance with the law of armed conflict
and other applicable international law;
``(4) convening on a quarterly basis an interagency task
force to assess progress on civilian harm prevention,
mitigation, and response, which shall include the Department of
Defense, the Department of State, the Central Intelligence
Agency, the United States Agency for International Development,
and such other agencies as the President considers appropriate;
``(5) tracking data relating to harm to civilians,
analyzing such data over time for trends, and ensuring the
public release of such data on a regular basis;
``(6) conducting post-strike assessments and investigations
of suspected harm to civilians, including wherever possible
interviews with victims and survivors, and in consultation with
civil society organizations and relevant United States
Government agencies, and publicly releasing all such
assessments and investigations with minimal redactions only for
legitimately classified information;
``(7) based on post-strike assessments, investigations, and
trend analysis, recommending individual amends and remedies for
harm to civilians, recommending accountability measures in
cases of wrongdoing, and suggesting changes to policy and
practice based on findings;
``(8) issuing amends for harm to civilians caused by the
use of force by the United States Armed Forces, a coalition
that includes the United States, a military organization
supporting the United States, or a military organization
supporting the United States or such coalition, including
formal apologies, ex gratia payments, and other assistance, in
consultation with civilian victims, survivors, and their
representatives;
``(9) engaging with civil society no less than biannually
to ensure the most accurate and comprehensive information about
harm to civilians is known to the United States Government and
that United States Government efforts to improve civilian harm
policies and practice are informed by the experiences and needs
of civilians affected by military operations of the United
States and partner countries;
``(10) conducting assessments and investigations and
reporting on instances of civilian harm that have occurred in
the past; and
``(11) ensuring that lessons learned from civilian harm
assessments, investigations, and other sources are reflected in
updated doctrine, policies, procedures, and practices, and
monitoring and assessing implementation of lessons learned.
``(c) Director.--(1) There is a Director of the Center, who shall
be the head of the Center, and who shall be appointed by the Secretary
of Defense. The Director of the Center shall be a civilian with
significant experience and expertise relating to the protection of
civilians.
``(2) The Director of the Center shall--
``(A) report directly to the Secretary of Defense; and
``(B) carry out the functions of the Center under
subsection (b).
``(d) Staff.--The Center shall have sufficient staff to carry out
the functions of the Center under subsection (b), including--
``(1) a general officer (as defined in section 101(b) of
this title) with significant experience and expertise on the
protection of civilians; and
``(2) analysts and investigators detailed from the
Department of State, the United States Agency for International
Development, the Central Intelligence Agency, and civil society
organizations.
``(e) Access to Intelligence.--The Center shall be provided with
access, in accordance with applicable provisions of law, to all
intelligence and other reporting possessed or acquired by the United
States Government pertaining to harm to civilians resulting from United
States military operations.
``(f) Annual Reports.--(1) At the direction of the Secretary of
Defense, the Director of the Center shall submit to the congressional
defense committees, the Committee on Foreign Relations of the Senate,
and the Committee on Foreign Affairs of the House of Representatives an
annual report on the activities of the Center. The Director shall also
publish an unclassified form of the report on an internet website of
the Department available to the public concurrently with its submission
to Congress.
``(2) Each report required by paragraph (1) shall include a
discussion of--
``(A) the activities of the Center and its progress toward
implementing the functions of the Center under subsection (b);
``(B) the assessment of the Director of United States
Government policies and practices for civilian harm prevention,
mitigation, and response;
``(C) the recommendations of the Director for improved
civilian harm prevention, mitigation, and response policies and
practices; and
``(D) the recommendations of the Director for any
legislative or other actions necessary to improve the ability
of the Center to carry out its functions.''.
``(g) Guidance.--Not later than 120 days after the date of the
enactment of this section, the Director of the Center shall, at the
direction of the Secretary of Defense and in consultation with civilian
victims and survivors, develop further guidance on the provision of
amends or condolences for harm to civilians, including monetary and
non-monetary mechanisms.
``(h) Funds.--For each of fiscal years 2023 through 2025, there is
authorized to be appropriated for the Department of Defense $25,000,000
for the Director to carry out the functions specified in subsections
(a) through (g).''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter is amended by inserting after the item relating to section
147 the following new item:
``148. Center of Excellence for the Protection of Civilians.''.
SEC. 8. REPORT ON DEPARTMENT OF DEFENSE PRACTICES REGARDING DISTINCTION
BETWEEN COMBATANTS AND CIVILIANS IN UNITED STATES
MILITARY OPERATIONS.
(a) Report.--The Secretary of Defense shall seek to enter into an
agreement with a federally funded research and development center to
conduct an independent report on Department of Defense practices
regarding distinguishing between combatants and civilians in United
States military operations.
(b) Elements.--The report required under subsection (a) shall
include the following matters:
(1) A description of how the Department of Defense and
individual members of the Armed Forces have differentiated
between combatants and civilians in both ground and air
operations since 2001, including in Afghanistan, Iraq, Syria,
Somalia, Libya, and Yemen, including--
(A) relevant policy and legal standards and how
these standards were implemented in practice;
(B) target engagement criteria; and
(C) whether military-aged males were presumptively
targetable.
(2) A description of how the Department of Defense has
differentiated between combatants and civilians when assessing
allegations of civilian casualties since 2001, including in
Afghanistan, Iraq, Syria, Somalia, Libya, and Yemen,
including--
(A) relevant policy and legal standards and the
factual indicators these standards were applied to in
assessing claims of civilian casualties; and
(B) any other matters the Secretary of Defense
determines appropriate.
(c) Submission of Report.--
(1) In general.--Not later than July 1, 2023, the Secretary
of Defense shall submit to the congressional defense committees
a report setting forth an unaltered copy of the assessment
under this section, together with the views of the Secretary on
the assessment.
(2) Form of report.--The report under paragraph (1) shall
be submitted in unclassified form, but may contain a classified
annex.
SEC. 9. DEFINITIONS.
In this Act:
(1) Civilian harm.--The term ``harm'', with respect to
civilians, means--
(A) injury to, death of, or destruction of property
of civilians; and
(B) any other harm to civilians caused as a result
of the use of force.
(2) Congressional defense committees.--The term
``congressional defense committees'' has the meaning given the
term in section 101(a)(16) of title 10, United States Code.
(3) United states military operations.--The term ``United
States military operations'' includes any mission, strike,
engagement, raid, or incident involving United States Armed
Forces.
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