Editor’s note: This article is the second in a new series on the National Defense Authorization Act (NDAA) for Fiscal Year 2023. The next article, by Ari Tolany, will address how the NDAA has fallen short on U.S. security assistance oversight.
Nothing is certain but death, taxes, and the National Defense Authorization Act (NDAA) getting longer every year. This year’s NDAA is a record 4,408 pages authorizing $858 billion of defense spending. The final law includes much-needed measures to prevent and respond to civilian harm resulting from U.S. military operations abroad. It does not, however, address accountability for past harm.
This NDAA arrives at an important time for civilian harm policy. In August, the Department of Defense (DoD) released its Civilian Harm Mitigation and Response Action Plan (CHMR-AP), an unprecedented Cabinet-level initiative to reform the Department of Defense’s approach to preventing and responding to civilian harm. This year’s NDAA offered members of Congress their first opportunity to legislatively respond to both the CHMR-AP and award-winning New York Times investigations of extensive civilian harm from U.S. airstrikes in Iraq, Syria, and Afghanistan.
Resourcing the CHMR-AP
The CHMR-AP lays out a framework for putting in place civilian harm-focused institutions and staff from 2022 until 2025, which will require resources allocated in legislation. Each CHMR-AP objective presents anticipated resource requirements. Congress can support the CHMR-AP process by authorizing and appropriating adequate funds for its implementation.
The NDAA authorizes $25 million for CHMR-AP implementation. DoD will likely require more resources to fully implement the CHMR-AP, but the NDAA marks an important first step in what should be a collaborative process between DoD and Congress. The conference committee’s explanatory statement also directs DoD to brief the Armed Services Committees on fiscal needs for CHMR-AP implementation needs by March 1, 2023, which is consistent with the CHMR-AP’s plan to provide Congress with an “unfunded requirement” request in early 2023.
The publicly available version of the defense appropriations bill, released before the CHMR-AP, does not include an appropriation for CHMR-AP implementation, but the committee report includes a placeholder supporting the DoD’s CHMR-AP efforts. Congress and the Department of Defense should continue collaborating to ensure implementation of the CHMR-AP receives sufficient funding in the future.
Institutionalizing the Civilian Protection Center of Excellence
In Section 1082 of the FY23 NDAA, Congress mandates the establishment of a Civilian Protection Center of Excellence. The provision envisions the Center of Excellence as a “focal point for matters related to civilian casualties and other forms of civilian harm resulting from military operations involving the United States Armed Forces.” Section 1082 mirrors Objective 2 of the CHMR-AP, thereby enshrining the Center of Excellence’s mandate in law. This legislative mandate will institutionalize efforts to prevent and respond to civilian harm under future DoD leadership.
Increasing Transparency on Civilian Casualty Reporting
Section 1056 of the FY23 NDAA makes much-needed improvements to the annual report on civilian casualties required under Section 1057 of the FY18 NDAA. The 1057 reports have shed light on civilian harm from U.S. military operations, but undercounting and vagueness have limited their utility. In past years, in response to calls for greater transparency, Congress required that DoD include additional information in its reports in provisions of the NDAAs for FY19 and FY20.
Section 1056 of this year’s NDAA builds on those provisions. In compliance with the new requirements, future 1057 reports will require more detailed information about the location of civilian casualties, “the specific justification or use of authority for each strike conducted,” and disaggregated data about the number of men, women, and children injured or killed. Future reports will also have to include summaries of completed civilian casualty assessments or investigations, and information about whether DoD conducted witness interviews or site visits or consulted civil society information – things that past investigations have often lacked.
Section 1056 draws from the bicameral Department of Defense Civilian Harm Transparency Act, covered in Just Security here. The text enacted in the NDAA, however, lacked several reporting requirements in the bill that Congress could implement in future years, such as explanations regarding determination of civilian status, dismissal of civilian harm claims deemed not to be credible, and remedial action for involved personnel, among other things.
Requiring A Review of Distinction Practices
Section 1067 requires a report on how the U.S. military has distinguished between civilians and combatants since 2001, naming several countries where the United States has used military force: Afghanistan, Iraq, Syria, Somalia, Libya, and Yemen. The reporting requirement reflects a similar provision in Sen. Elizabeth Warren (D-MA) and Rep. Ro Khanna’s (D-CA) Protection of Civilian in Military Operations Act reintroduced in April 2022 and covered in Just Security here.
Due within a year of enactment, the report will include both an independent assessment by a federally funded research and development center and “the views of the Secretary on the assessment.” The NDAA requires that the report address both determination of civilian status in targeting and the purpose of civilian harm assessments.
Distinction between combatants and civilians is a fundamental principle of international humanitarian law intended to prevent civilian harm. Misidentification of civilians causes civilian harm, as it did when a 2021 air strike in Kabul killed aid worker Zemari Ahmadi and nine other civilians, including seven children, based on a faulty assessment that Ahmadi was an Islamic State operative who intended to attack U.S. troops at the Kabul airport. U.S. military studies and investigations have acknowledged that confirmation bias clouds identification of combatants during the targeting process. After military operations harm civilians, misidentification of civilians as combatants can lead to errors in DoD investigations, preventing victims, survivors, and communities from receiving the acknowledgment and amends they deserve. Discrepancies between civilian casualties in the 1057 reports and casualty estimates by independent organizations like Airwars often come down to differences in civilian status determinations.
Issues related to misidentification have often been at the heart of public discourse around civilian casualties. The United States is an outlier in its method of determining whether people are actively participating in hostilities and therefore permissible targets under international humanitarian law. Errors in the DoD Law of War Manual, which does not recognize the customary international humanitarian law requirement to presume civilian status when a person’s status is in doubt, may also cause problems when it comes to the determination of civilian status.
A comprehensive study of how the U.S. military has historically practiced distinction should guide DoD as it prepares to update its policy and doctrine through the CHMR-AP process, resulting in fewer misidentifications, less civilian harm, and more accurate post-strike assessments for the purposes of adequately responding to civilian harm.
Extending Authorization for Ex Gratia Payments
Section 1221 extends through 2033 the authority to issue ex gratia payments for civilians harmed as a result of U.S. military operations. Extension of the authority is a welcome step. Members of Congress will no longer have to annually extend ex gratia authorities, as they did in the FY2022 NDAA. The ex gratia authorization should be permanent, as it was in the House’s NDAA passed in June 2022. Nevertheless, a ten-year authorization will cement ex gratia as a long-term fixture of U.S. civilian harm policy.
But authorization is just part of the problem. DoD has repeatedly failed to disburse ex gratia payments for civilian harm. DoD provided only one ex gratia payment in 2021 and none in 2020 despite repeated Congressional authorization to provide up to $3 million annually. Ex gratia payments have previously been disbursed at the discretion of commanders. In last year’s NDAA, Congress required the development of an ex gratia claims process in consultation with the State Department and nongovernmental organizations. DoD did not meet the June 2022 deadline established in the original NDAA mandate but has since incorporated the ex gratia claims process into the CHMR-AP framework. Objective 8 of the CHMR-AP entails “[r]eview[ing] DoD guidance on responding to civilian harm,” including condolence payments, with the claims process expected next year. Such a process would standardize U.S. military procedures and facilitate access to acknowledgment and amends for harmed civilians.
Missed Opportunity: Accountability for Past Harm
The House version of the FY23 NDAA included a Commission on Civilian Harm, which did not survive the conference committee (covered in Just Security here). A retrospective reckoning with the human consequences of U.S. counterterrorism operations since 2001 is long overdue. A congressionally created bipartisan commission would complement ongoing work on civilian protection in DoD and serve as an important corrective to DoD’s apparent reluctance to review instances of civilian harm that the U.S. military erroneously dismissed.
Unfortunately, the Pentagon has indicated that its implementation of the CHMR-AP does not currently entail revisiting past cases. Our organization, Center for Civilians in Conflict (CIVIC), has urged the Department to reconsider that approach. In a recent bicameral letter to Secretary Austin, Senators Warren (D-MA), Durbin (D-IL), and Leahy (D-VT) and Representatives Malinowski (D-NY), Crow (D-CO), and Jacobs (D-CA) similarly urged the Department of Defense to review several cases of civilian harm and “change its posture on ‘looking back’ at past cases.”
It is not too late for DoD to incorporate past cases into the CHMR-AP process. To learn from past mistakes, DoD should, as part of the multi-year CHMR-AP implementation process, examine erroneously dismissed cases of civilian harm and ensure that new processes prevent errors from recurring. After establishing revamped processes for reviewing and responding to civilian harm, DoD should prioritize creating a review process that ensures civilians harmed in U.S. military operations receive appropriate acknowledgment and amends.
The 118th Congress will bring significant changes to the legislative landscape. While the Democratic caucus maintains a razor-thin margin in the Senate, Republican control of the House will mean new leadership on the House Armed Services Committee and possibly different NDAA priorities. Now in its sixty-second iteration, the National Defense Authorization Act will presumably maintain its role as each year’s leading must-pass omnibus for national security-related legislation.
When it comes to civilian harm from U.S. military operations, implementation of the CHMR-AP will likely continue to drive legislative engagement. The DoD will soon release its long-awaited DoD Instruction of Civilian Harm (DoD-I). The FY19 NDAA mandated the DoD-I, the FY22 NDAA conditioned some funds for the Office of the Secretary of Defense on its release, and DoD subsequently incorporated the DoD-I into the CHMR-AP implementation process. Civil society organizations, including CIVIC, offered guidance for a model DoD-I in 2020.
Similarly, the FY22 NDAA-mandated ex gratia claims process, originally required in the FY22 NDAA, is now part of the DoD’s CHMR-AP implementation work. The release of the DoD-I and ex gratia claims process will undoubtedly draw great interest on Capitol Hill, including among the newly established Protection of Civilians in Conflict Caucus.
For the past several years, the NDAA has been part of a cyclical process where Congress institutes new protection of civilian requirements, DoD implementation falls short of congressional intent, and Congress returns with new mandates to close implementation gaps. With the release of the DoD-I and ex gratia claims process on the horizon, Congress should remain engaged with the CHMR-AP process to provide support or pressure to DoD where necessary.