Editor’s Note: This article represents the first installment of a two-part series on new congressional bills concerning civilian harm resulting from U.S. military operations.
Today, Sens. Elizabeth Warren, Dick Durbin, Jeff Merkley, and Bernie Sanders and Reps. Ro Khanna, Jason Crow, Sara Jacobs, and Tom Malinowski announced two bicameral bills that, if passed, would help address longstanding shortcomings in how the United States prevents, mitigates, and responds to civilian harm: the Protection of Civilians in Military Operations Act (POCIMO) and the Department of Defense Civilian Harm Transparency Act (CHTA).
The bills come during a critical moment of reckoning concerning civilian harm resulting from U.S. military operations in places such as Afghanistan, Iraq, Syria, and elsewhere. Following a series of New York Times investigations revealing systemic flaws that led to civilian deaths and injuries, as well as calls from civil society to finally address these failures, Secretary of Defense Lloyd Austin on Jan. 27 directed the Department of Defense (DoD) to take a series of steps to overhaul how it addresses the issue of civilian harm. These steps included the development of a Civilian Harm Mitigation and Response Action Plan (CHMRAP), the creation of a military “Center of Excellence” on the protection of civilians, and the completion of the long-awaited DoD Instruction on Civilian Harm (DoD-I).
Many advocates welcomed these steps with caution; after all, this is not the first time the Pentagon has promised reform. While it is encouraging that civilian harm is being recognized as a high priority, success will require sustained engagement not only from the DoD, but also from the White House and Congress. Indeed, congressional oversight and legislation have been key drivers of progress on protection of civilians in recent years.
Fortunately, since Sec. Austin’s Jan. 27 directive, members of Congress have maintained the momentum for reform. In March, 46 Representatives – including the co-sponsors of the aforementioned bills and the Chair of the House Armed Services Committee – wrote to Sec. Austin with a list of the longstanding issues they expect DoD to address. Earlier this week, seven senators, led by Sen. Warren, echoed their calls, stating: “We remain concerned that twenty years of Pentagon pledges to hold itself accountable and correct fundamental flaws that lead to preventable civilian harm have gone unfulfilled.”
We hope the two new pieces of legislation proposed today will be welcomed by the Pentagon as a complement to Sec. Austin’s pledges of reform and the hard work already underway within the Defense Department.
Below, we outline the key provisions of the first such bill, POCIMO, and why passing this bill is a crucial step toward strengthening investigations of civilian harm, improving transparency around civilian protection standards and casualty assessments, and increasing staffing and resources to better prioritize civilian protection. (Of note: Sen. Warren and Rep. Khanna also introduced an earlier version of POCIMO in 2020, which was never passed into law.)
Protection of Civilians in Military Operations Act
The proposed POCIMO bill does three key things. First, it enhances investigations into civilian harm resulting from U.S. military operations to get to the bottom of how, when, where, and why civilians were harmed. This is important for learning lessons and preventing future harm, but it is also critically important to civilian victims and their families – most of whom have been left without explanation or redress for devastating harm after more than two decades of conflict. Second, POCIMO makes available key information on civilian harm previously hidden from public view, including the details of assessments and investigations as well as U.S. military standards for distinguishing between civilians and combatants. Finally, passing POCIMO would allow Congress to shape the Secretary’s envisioned Center of Excellence to prevent and respond to civilian harm, ensuring that the Center can be a bureaucratically and well-resourced entity capable of driving and implementing meaningful reforms.
More Rigorous and Objective Investigations
Section 3 of POCIMO requires that any investigation of civilian harm be conducted outside the immediate chain of command of the unit responsible for the incident, and that each investigation include interviews with civilian survivors and witnesses, as well as consultation with civil society groups to incorporate external information. These provisions address key shortcomings in the existing investigation process, notably, the fact that the military currently grades its own homework. How can a commander be expected to objectively and dispassionately investigate their own actions? Indeed, research by Center for Civilians in Conflict (CIVIC) and Columbia Law School Human Rights Institute found that commanders’ dual roles in directing operations and ordering investigations of civilian harm resulting from those operations created an inherent risk of bias.
The Pentagon also has routinely undercounted civilian casualties, in part because investigators typically do not consult with victims or witnesses. Numerous civil society reports, the New York Times’ Civilian Casualty Files, and a DoD-sponsored RAND study have repeatedly found that the U.S. military relies on its own internal records in investigating civilian harm allegations and rarely seeks information from witnesses or survivors of attacks, despite DoD claims that it takes into account “relevant and credible all-source reporting, including information from public reports and nongovernmental sources.” POCIMO’s requirement that investigations consult civilian survivors, witnesses, and civil society organizations is a critical step toward understanding what really happened in any civilian casualty incident and preventing future harm.
Additional Transparency Measures
Section 5 of POCIMO requires the Secretary of Defense to establish and regularly update a public database of DoD assessments and investigations of civilian harm. This is important because, to date, the U.S. military’s assessments and investigations have been hidden from the public – including from civilian victims searching for answers about what happened to them and why. The American public has also been kept in the dark, despite the need for public accountability and awareness of the harms being done in their name.
Section 8 also requires the Secretary to contract with a federally-funded research and development center, such as RAND, to publish an unclassified report on how DoD has distinguished between combatants and civilians in its operations in Afghanistan, Iraq, Syria, Somalia, Libya, and Yemen since 2001. To date, the U.S. military has adopted deeply flawed, overly permissive, and often secretive interpretations of legal and policy standards that have directly resulted in civilian harm. For example, as previously chronicled in these pages at Just Security, DoD has adopted an overly broad definition of what constitutes direct participation in hostilities and has also repeatedly failed to presume civilian status in cases of doubt as required under international law. Moreover, DoD’s own studies and investigations have identified persistent problems with confirmation bias and misidentification that have not been adequately addressed, problems which in part led to civilian harm in the Kabul and Baghuz incidents. The report required by POCIMO is a crucial step toward clarifying, and ultimately reforming, the standards, policies, and procedures that have led to these wrongful deaths.
Increased Staffing and Resources
Sections 6 and 7 of POCIMO authorize resources for the implementation of the Pentagon’s new policy on civilian protection and establish Sec. Austin’s envisioned Center of Excellence for the Protection of Civilians. While the Secretary could establish the Center on his own, creating it via legislation means that Congress can ensure it is a bureaucratically powerful entity capable of driving and implementing meaningful reforms. The bill would establish the Center within the Office of the Secretary of Defense, headed by a Director who reports directly to the Secretary. Under POCIMO, the Center would be responsible for, among other tasks, ensuring the full implementation of the forthcoming civilian harm policy; conducting regular audits of civilian harm prevention, mitigation, and response policies and practices across the U.S. military; tracking, analyzing, and publicly releasing data related to civilian harm; conducting post-strike assessments and investigations of civilian harm, including past harms; recommending and issuing amends and remedies for civilian harm; and ensuring that lessons learned are reflected in updated doctrine, policies, procedures, and practices.
Having this Center as a hub that prioritizes civilian protection is especially important given that there is currently no full-time focal point on these issues at the Pentagon. And the fact that the bill would task the Center with assessing, investigating, and reporting on past civilian harm incidents is also critical, considering that Sec. Austin has stated this is not currently part of the Department’s plans despite the many known cases that were likely prematurely dismissed.
Meeting the Moment
Today’s recognition of civilian harm caused by U.S. military operations is both essential and long overdue. For twenty years, the U.S. government has repeatedly failed to prevent, meaningfully investigate, publicly acknowledge, and make amends for civilian harm. If passed, this legislation could address longstanding shortcomings in U.S. policy, strengthen the Defense Department’s ongoing reform efforts, and finally give civilians harmed by conflict the attention they deserve. We urge Congress to meet this moment by supporting and passing this critical legislation.