Editor’s Note: This article represents the second installment of a two-part series on new congressional bills concerning civilian harm resulting from U.S. military operations.
As the first installment of the series highlighted, Sens. Elizabeth Warren, Dick Durbin, Jeff Merkley, and Bernie Sanders and Reps. Ro Khanna, Jason Crow, Sara Jacobs, and Tom Malinowski introduced two bills yesterday that address systemic problems with civilian harm resulting from U.S. military operations: the Protection of Civilians in Military Operations Act (POCIMO) and the Department of Defense Civilian Harm Transparency Act (CHTA). The proposed legislation aims to close legal and procedural gaps, improve accountability, and restore the credibility of U.S. military operations. As Congressman Jason Crow, who played a leading role in the effort, put it, “these transparency measures will shed light for the public on U.S.-caused civilian casualties overseas – holding our government accountable, and safeguarding the trust of the American people.”
As noted in Part I of this series, it is encouraging that the Pentagon is prioritizing reform in this area, and we hope these legislative efforts will be welcomed. This article focuses on key elements of the CHTA.
Problems with the Existing Legislation
The proposed CHTA bill builds on several years of increasing congressional oversight concerning civilian harm in this area. The CHTA strengthens the civilian casualty reporting requirement originally found in Sec. 1057 of the 2018 National Defense Authorization Act (NDAA), which requires the Department of Defense (DoD) to produce and submit to Congress an annual report on civilian casualties resulting from U.S. military operations, as well as to release an unclassified version of this report to the public.
Sec. 1057 requires DoD to list, on an annual basis, all operations that are confirmed, or reasonably suspected, to have resulted in civilian casualties, including the operation’s location, date, and whether it occurred within a declared theater of active armed conflict. While subsequent NDAAs have supplemented the original 2018 NDAA Section 1057 annual reporting mandate, it remains deficient in providing the information needed for comprehensive transparency and hence reform.
In their current form, the requirements contained in Sec. 1057 are incomplete, overly broad, and inadequate to address the issue of civilian harm. These deficiencies in the reporting requirements have further entrenched systemic problems with civilian harm, contributing to a military culture of impunity where past lessons are not learned and sufficiently acted upon.
Information in the annual report is largely confined to the date, location, and assessed number of civilian and enemy combatant deaths for military operations. Reports that are deemed to be credible are investigated further; it is not clear, however, how such credibility determinations are made and whether civil society groups or open source information is adequately consulted during the process. In some cases, reports of civilian casualty (CIVCAS) allegations have been erroneously dismissed as “not credible” because of improper record keeping, insufficient due diligence, and a lack of resources. Credible cases also have been kept open for years without any effort to resolve, learn from, and make amends for civilian harm. CENTCOM, for example, failed to close the file on the March 2019 strikes in Baghuz, Syria – one of the largest CIVCAS incidents in the war against the self-proclaimed Islamic State – due to a “clerical error” and bureaucratic inertia.
The Baghuz case underscores structural problems with DoD assessments of civilian casualties. Following New York Times revelations on the strikes, CENTCOM Spokesperson Capt. Bill Urban acknowledged that DoD was unable to determine conclusively the civilian or combatant status of at least 60 individuals who were killed. Nevertheless, the task force investigating the strikes concluded in a civilian casualty report that only four civilians were killed and that there was no evidence of wrongdoing. The Pentagon also failed to report the Baghuz strikes in its annual civilian casualty reports to Congress submitted around May 2020 and June 2021.
The current reporting requirements in Sec. 1057 do not directly address the systemic problems that led to the kind of flawed accounting that occurred in the Baghuz case. Instead, the requirements stipulate that DoD must provide the assessed numbers of civilian and combatant casualties, without any explanation of how DoD makes determinations about the status of potential targets, the criteria for such determinations, or the level of epistemic certainty associated with such judgments. This information is crucial for preventing misidentification of civilians as belligerents or individuals who are directly participating in hostilities – a recurring problem that often leads to civilian harm. The existing requirements also do not mandate that DoD disclose the precise procedures it uses to investigate reports of civilian harm. Such transparency is critical for ensuring that the procedures in place are adequately rigorous, and that they are followed correctly.
Finally, the unclassified version of the Sec. 1057 report is of limited value to civil society and media organizations that track civilian harm closely and may have sources on the ground who are better able to directly corroborate allegations of civilian harm. There is strong support from these groups to revise DoD’s annual report and improve transparency concerning CIVCAS allegations along the lines that the bill proposes, as explained below.
The Department of Defense Civilian Harm Transparency Act
To address the weaknesses in the current mandated reporting requirements, the CHTA bill reinforces Sec. 1057 transparency measures along several lines of effort: standards used to assess civilian harm; civilian harm investigation procedures; DoD leadership and oversight; accountability; and increased data on civilian harm incidents and ex gratia and condolence payment processes.
In addition, the proposed legislation expands the reporting scope beyond civilian “casualties” to “civilian harm” in order to capture not only casualties, but also civilian injuries and damage to civilian objects. This proposed expansion is not merely cosmetic; it concretely broadens the scope of DoD’s annual report and thus improves efforts to address systemic problems, thereby bringing Sec. 1057 into alignment with Secretary of Defense Lloyd Austin’s Jan. 27 memorandum on improving civilian harm mitigation and response.
Increasing Transparency on Legal and Policy Standards
The CHTA’s enhanced reporting requirements aim to provide clarity on the legal and policy standards for U.S. military operations. The bill aims to give Congress, and the public, a better understanding of how DoD interprets and applies existing laws, rather than mandating any particular interpretation of those laws.
One crucial area of clarification concerns the ways in which DoD interprets and applies the legal principle of distinction, which requires operators to distinguish between those individuals who may be lawfully targeted and those who are immune from attack. The CHTA stipulates that DoD must specify “the legal criteria for considering a person to be a civilian, civilian directly participating in hostilities, or a belligerent.” This requirement is important given reports that DoD frequently has undercounted civilian deaths caused by U.S. military operations because it may have misidentified civilians as belligerents or individuals who were directly participating in hostilities based on insufficient or flimsy evidence. For example, as noted above, CENTCOM acknowledged that DoD was unable to determine conclusively the status of at least 60 individuals who were killed in the Baghuz strike – even though many reportedly were unarmed women and children – thus raising doubt about the necessity and proportionality of the strike overall. It is vital both for Congress and the public to understand how such an inconclusive finding was reached, and how future determinations can be improved.
The current legislative proposals include not only much-needed transparency into how the military distinguishes civilians from fighters on the modern battlefield, but also transparency into the legal and policy justifications for the strikes themselves, requiring an explanation of each such justification under domestic law and applicable international law. For example, the CHTA requires DoD to report on whether incidents that resulted in civilian harm occurred as part of longer term, deliberate targeting operations or in the faster paced “dynamic” targeting process. Such proposed transparency measures speak to the reported misuse of dynamic targeting procedures utilized in immediate self-defense or defense of partner forces to bypass the more rigorous procedures involved in pre-planned, deliberate strikes. Requiring legal and policy justifications for each strike that causes civilian harm will serve to deepen our understanding of when such justifications are appropriate, and identify lessons learned for reducing future civilian harm.
Additionally, the CHTA requires that the military specify, for every incident of civilian harm, the relevant rules and procedures designed to prevent civilian casualties or significant damage to civilian objects. This level of specificity will help Congress determine whether the U.S. military took feasible precautions – as required by the law of armed conflict – to avoid and minimize “incidental loss of civilian life, injury to civilians and damage to civilian objects;” what precautions were considered to be feasible; and whether those rules and procedures were adequately followed.
Enhancing Reporting on Civilian Harm Data
The CHTA also improves upon current reporting requirements on civilian harm data. For example, the Act mandates that DoD provide information about each incident in which “civilian harm is confirmed or reasonably suspected to have occurred,” as well as alleged civilian harm incidents “for which an investigation…remains open” as of the date DoD submits the annual civilian harm report to Congress. In the annual report, information must include the date, time, and precise geographic coordinates of all military operations that result in civilian harm, as well as the type of weapons and ordnance used. Furthermore, the Act requires not only an account of the number of civilians killed during such operations, formulated as a range, if necessary, but an account of civilians injured, as well as a breakdown by estimated age and gender.
The Act also delves deeper into causal factors related to civilian harm. For example, it requires an “assessment of whether civilian harm resulted from misidentification of a military objective or from the collateral effects of engagement.” It also mandates an “assessment of damage to civilian objects that would ordinarily be placed on a no-strike list” plus an explanation for any removal from such list. Finally, it requires an “assessment of whether post-strike civilian harm exceeded pre-strike assessments of anticipated harm and, if so, the reasons for this discrepancy.”
Improving Reporting on Civilian Harm Investigation Procedures
In addition to the urgent need for greater transparency concerning the standards DoD is using to define and assess civilian harm, clarity about the procedures for investigating civilian harm, and the entities responsible for conducting those investigations, is crucial. Such transparency is particularly important in light of recent reports that suggest a troubling lack of independent oversight and accountability. Indeed, existing investigation procedures are opaque; it is currently unclear which individuals or entities within DoD have the authority and responsibility to conduct civilian casualty investigations. The Act therefore requires DoD to set forth all specific procedures it follows to assess and investigate civilian harm, including procedures “for conducting and reviewing such investigations” and for “the entities responsible for conducting and reviewing such investigations.”
Furthermore, because reports indicate that civilian harm investigators often rely on external sources rather than conducting their own inquiries, and because it is unclear how those investigators determine which reports of civilian harm are “credible” (whether obtained from external sources or otherwise), the Act also requires the Department to disclose the “procedures for reviewing external information, as well as “criteria for deeming information credible.” (This “credibility” assessment is key because it triggers further investigation). Notably, the Act does not itself mandate that DoD must follow specific procedures. Rather, the goal of the Act is to provide transparency so that Congress, and the public more broadly, can understand how DoD is conducting civilian casualty investigations.
Strengthening DoD Leadership and Oversight
Another key component of the CHTA is a requirement that DoD designate a Civilian Harm Investigation Coordinator within the Department who would have both the authority and responsibility for managing the entire civilian harm assessment and investigation process within DoD. In creating this position, the Act goes further than the 2019 NDAA, which required DoD to name a senior civilian official to oversee civilian casualty policy, but did not specifically direct that official to review all civilian harm investigations or certify the annual civilian harm report to Congress. (DoD filled that role by appointing David Trachtenburg the “Senior civilian Official for Civilian Casualty Policy”). The position defined in the CHTA, for example, will entail a responsibility to review and oversee all components of the civilian harm investigation process, and to assess whether it is working properly. A designated official of this type can help ensure that nothing falls through the cracks of bureaucracy due to fragmented and diffuse authority. Specifically, the Act requires that the Civilian Harm Investigation Coordinator conduct “a review of [each civilian harm] investigation and an assessment of whether applicable laws, policies guidelines, and processes were followed.”
Furthermore, the Act mandates that the Civilian Harm Investigation Coordinator certify in each annual civilian harm report to Congress that they have conducted such reviews. A certification requirement is itself a form of accountability insofar as it ensures that the buck stops with a designated official (Congress has, in other national security contexts, required similar certifications). Additionally, because the Coordinator will have to evaluate numerous legal rules and standards, and the interpretation of these rules and standards is inextricably intertwined with the Coordinator’s oversight role, the Act also establishes a position of general counsel to assist the Civilian Casualty Coordinator.
In designating a Civilian Harm Investigation Coordinator, it should be noted that the Act differs slightly from the POCIMO, which focuses on enhancing the DoD Center of Excellence for the Protection of Civilians discussed in Part I. These two bills should be reconciled, ensuring that the Coordinator is dual-hatted as the Director of the Center of Excellence set forth in the POCIMO.
Requiring Answers on Accountability
The CHTA requires that, for all incidents of civilian harm where at least simple negligence was determined to play a contributory role, the military must detail all remedial personnel action taken, including administrative, disciplinary, or punitive action and, if no actions are taken, to explain why. Given the serious consequences of errors identified in various reports of civilian casualties – errors that transcend simple “fog of war” rationales for civilian deaths – reporting on administrative and other forms of accountability is vital. Accountability for civilian harm goes beyond consequences for strictly criminal conduct; administrative remedies also serve important accountability goals and underscore the moral, legal, and strategic imperative of reducing civilian harm in military operations. The CHTA also requires that the military report all changes to policies, rules, or procedures that result from an incident of civilian harm. This is important because, all too often, crucial lessons on civilian harm are identified, but not learned or fully implemented in practice.
Increasing Insight into Ex Gratia Payments and Other Forms of Amends
Finally, the Act mandates that DoD provide greater transparency on ex gratia and other condolence payments to victims of civilian harm. In addition to providing a modicum of financial support to victims, these payments serve to build trust within the local population for the U.S. military. Yet the process surrounding these payments remains opaque, and payments too often are inconsistent and slow. The Act shines more light on the entire process of granting such payments by mandating that DoD report on the payments quarterly, to include such information as the location of the payments, and, if no payments were made in response to requests, an explanation as to why. Furthermore, the Act directs DoD to set up an “easily accessible electronic method” to request such payments, as well as a searchable, public database (redacted as necessary to protect confidentiality).
In addition to condolence payments, the Act requires, in cases where the Secretary of Defense deems that credible civilian harm has occurred, an assessment of whether DoD has publicly acknowledged the harm, explained or apologized for it, or provided any non-monetary forms of compensation, such as the provision of medical care and visa assistance. Importantly, the Act stipulates that DoD should analyze the effectiveness of these consequence management actions, which are critical to maintaining and restoring trust with local populations in places where the U.S. military continues to conduct operations.
Meeting the Moment
For all of these reasons, passing CHTA is necessary to help DoD address the growing credibility gap surrounding its operations. Addressing civilian harm is a strategic and moral imperative for the United States that should be incorporated into the planning, execution, and review stages of all military operations. As Sen. Warren has emphasized, “we cannot continue to accept the deaths of innocent civilians as an unavoidable cost of war – the Department of Defense has a moral responsibility to prevent civilian harm from its military operations and investigate if civilians are harmed.”
If passed, the CHTA would significantly increase transparency into DoD operations, while reinforcing appropriate oversight and accountability for operations that result in civilian harm. Transparency is important not only for its own sake; it serves to bolster the legitimacy of U.S. military operations, which contributes to maintaining the support of allies, partners, and civilians residing in the countries in which the U.S. military operates. Passing the CHTA would be a crucial first step toward demonstrating to the American public and the world that the United States is truly committed to doing everything possible to reduce the impact of its military operations on innocent civilians who all too often bear the most profound burdens of war.