The Pentagon Put Someone in Charge of Its Civilian Casualty Policy. Now What?

For all the time and attention that the Defense Department has rightly spent addressing civilian casualties, no single official at the Pentagon has ever been formally charged with overseeing the many challenges involved with proactively preventing civilian casualties and assessing and responding to reports of harm. And while many of the important decisions related to preventing and investigating civilian casualties are handled at the discretion of commanders in the field, the absence of a central authority for developing and disseminating policy on civilian casualties across the entire Defense Department has led to an inconsistent approach to managing allegations and investigations, estimating and tracking casualties, communicating with NGOs and the public, and compensating victims and their family members when casualties occur.

More problematically, the lack of a central overseer has also created a challenge to institutionalizing some of the department’s better practices or anticipating issues in the planning process, making the prevention of civilian casualties in the next military campaign even more difficult.

This is all now set to change. A provision passed by Congress in the National Defense Authorization Act for Fiscal Year 2019 required the Pentagon to name a senior civilian official, at or above the level of an assistant secretary of defense, to “develop, coordinate, and oversee compliance with the policy of the department relating to civilian casualties resulting from United States military operations.”

Ahead of the congressionally set deadline, the Department of Defense designated a “Senior Civilian Official for Civilian Casualty Policy.” David Trachtenburg, the deputy undersecretary of defense for policy will serve in this role, “subject to the authority, direction, and control of the Under Secretary of Defense for Policy,” a role now being filled by John Rood. Notably, the legislation required the designation of an official at the assistant secretary of defense level or higher, meaning that DoD has elected to designate an official at a more senior level than required.

Choosing an individual with such seniority hopefully reflects, and is likely intended to signal, the seriousness with which the Pentagon is approaching the task of developing department-wide civilian casualty policy. Indeed, Defense Secretary Jim Mattis has elevated the issue within the department since before the new provisions were enacted, including meeting personally with human rights and humanitarian organizations at the beginning of the year to hear their concerns. But given that such senior officials have many demands on their time, success is not guaranteed without an institutional commitment to making the person who serves in this position successful.

The next step is now getting it right. Adequate attention and resources must be dedicated to the effort for Trachtenburg to succeed. Indeed, given the scope of the work he is tasked with, it will require access to  internal and external individuals with deep expertise, dedicated full-time staff, and significant resources to really do this right. By statute, he is tasked with developing and overseeing implementation of a new civilian casualty policy that includes:

  • Uniform processes and standards across the combatant commands for accurately recording strikes;
  • Development and dissemination of best practices for reducing the likelihood of civilian casualties;
  • Development of publicly available means, including an internet-based portal, for outsiders to submit reports of civilian casualties;
  • Uniform processes and standards across the combatant commands for reviewing and investigating reports of civilian casualties, including consideration of relevant information from all available sources;
  • Uniform processes and standards across the combatant commands for a) acknowledging U.S. responsibility for U.S. caused casualties and b) offering ex gratia payments as appropriate;
  • A process for regular engagement with relevant intergovernmental and nongovernmental organizations;
  • Public affairs guidance; and
  • Any other matters related to civilian casualties the senior civilian official considers appropriate.

Any one of these tasks is a major undertaking. But given the strategic, as well as moral, costs of killing civilians when it could be prevented, and of failing to address the casualties that do inevitably occur in when military force is used, it will be well worth the effort of getting this right.

Defense Secretary Jim Mattis and Gen. Joe Dunford, chairman of the Joint Chiefs of Staff, brief reporters at the Pentagon, Aug. 28, 2018. DoD photo by Lisa Ferdinando

 

About the Author(s)

Daniel R. Mahanty

Director for the U.S. program at the Center for Civilians in Conflict; served at the State Department (1999-2015); led the creation of the Office of Security and Human Rights in the Bureau of Democracy, Human Rights and Labor. Follow him on Twitter (@danmahanty).

Rita Siemion

International Legal Counsel at Human Rights First. Follow her on Twitter (@ritasiemion).