Congressional Action on Civilian Damage Resulting from U.S. Military Operations: Part One

Editor’s Note: This article represents the first part of a two-part series on new congressional bills regarding civilian harm resulting from U.S. military operations.

Today, the senses. Elizabeth Warren, Dick Durbin, Jeff Merkley and Bernie Sanders and Representatives Ro Khanna, Jason Crow, Sara Jacobs and Tom Malinowski announced two bicameral bills that, if passed, would help close long-standing gaps in the 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 Injury Transparency Act (CHTA).

The bills come at a critical time in calculating civilian damage resulting from US military operations in places like Afghanistan, Iraq, Syria and elsewhere. Following a series of New York Times investigations revealing systemic flaws that have led to civilian deaths and injuries, as well as calls from civil society to finally address these failures, Secretary of Defense Lloyd Austin on January 27 ordered the Department of Defense (DoD) to take a series of steps to revise its approach to the issue of civil damages. These steps included the development of a Civilian Damage Mitigation and Response Action Plan (CHMRAP), the establishment of a military “Centre of Excellence” on the protection of civilians, and the completion of the long-awaited DoD Civilian Damage Instruction (DoD-JE).

Many advocates greeted these measures with caution; after all, this is not the first time the Pentagon has promised reforms. While it is encouraging that civilian harm is recognized as a high priority, success will require sustained commitment not only from the DoD, but also from the White House and Congress. Indeed, congressional oversight and legislation have been key drivers of progress in protecting civilians in recent years.

Fortunately, since Sec. After Austin’s Jan. 27 directive, members of Congress maintained the momentum for reform. In March, 46 representatives — including the co-sponsors of the aforementioned bills and the chairman of the House Armed Services Committee — wrote to Sec. Austin with a list of long-standing issues they expect the DoD to address. Earlier this week, seven senators, led by Senator Warren, echoed their calls, saying, “We remain concerned that twenty years of Pentagon commitments to hold themselves accountable and to correct the fundamental flaws that drive to avoidable civil damages were not held.

We hope that the two new pieces of legislation proposed today will be well received by the Pentagon in addition to Sec. Austin’s promises of reform and the hard work already underway within the Department of Defense.

Below, we outline the key provisions of the first-of-its-kind bill, POCIMO, and why the bill’s passage is a critical step toward strengthening civil damages investigations, improving transparency around civil protection standards and casualty assessments, and increasing personnel and resources to better prioritize civilians. protection. (Note: Senator Warren and Rep. Khanna also introduced an earlier version of POCIMO in 2020, which was never signed into law.)

Protection of Civilians in Military Operations Act

The proposed POCIMO bill does three essential things. First, it improves civilian harm investigations resulting from U.S. military operations to understand how, when, where, and why civilians were harmed. This is important for learning lessons and preventing future damage, but it is also of crucial importance for the civilian victims and their families – most of whom have been left without explanation or reparation for devastating damage after more than two decades of conflict. Second, POCIMO is making key information about civilian harm previously hidden from the public available, including details of assessments and investigations as well as US military standards for distinguishing between civilians and combatants. Finally, passing POCIMO would allow Congress to shape the center of excellence envisioned by the secretary to prevent and respond to civilian harm, ensuring that the center can be a bureaucratic and well-resourced entity capable of leading and implementing implement significant 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 integrate information. These provisions correct major shortcomings of the current investigative process, including the fact that the military is currently correcting its own homework. How can a commander be expected to objectively and dispassionately investigate his own actions? Indeed, research by the Center for Civilians in Conflict (CIVIC) and the Columbia Law School Human Rights Institute found that the dual role of commanders in directing operations and organizing investigations into civilian harm resulting from these transactions created an inherent risk of bias.

The Pentagon has also routinely undercounted civilian casualties, in part because investigators typically do not consult with victims or witnesses. Numerous reports from civil society, 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 to investigate claims of civilian harm and rarely seeks information from witnesses or survivors of attacks, despite DoD claims that it considers and credible reports from all sources, including information from public reports and non-governmental sources. POCIMO’s requirement that investigations consult with civilian survivors, witnesses and civil society organizations is an essential step in understanding what really happened in an incident involving civilian casualties 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 civilian casualty assessments and investigations. This is important because, to date, US military assessments and investigations have been hidden from the public, including civilian victims seeking answers about what happened to them and why. The American public has also been kept in the dark, despite the need to be publicly accountable and aware of the harm done in its name.

Section 8 also requires the secretary to contract with a federally funded research and development center, such as RAND, to release an unclassified report on how the DoD distinguished between combatants and civilians. in its operations in Afghanistan, Iraq, Syria, Somalia, Libya, and Yemen since 2001. To this day, the U.S. military has adopted deeply flawed, overly permissive, and often covert interpretations of legal and political norms that directly caused harm to civilians. For example, as noted earlier in these pages at just security, the DoD adopted an overly broad definition of what constitutes direct participation in hostilities and also repeatedly failed to presume civilian status when in doubt, as required by international law. Additionally, the DoD’s own studies and investigations have identified continuing issues of confirmation bias and misidentification that have not been properly addressed, issues that in part caused civilian harm during the Kabul and Baghuz incidents. . The report demanded by POCIMO is a critical step toward clarifying, and ultimately reforming, the standards, policies, and procedures that led to these wrongful deaths.

Increase in staff and resources

Sections 6 and 7 of the POCIMO authorize resources for the implementation of the new Pentagon policy on the protection of civilians and establishes Sec. Center of Excellence for the Protection of Civilians envisioned by Austin. While the Secretary could establish the Center on his own, creating it through legislation means that Congress can ensure that 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 tasked with, among other tasks, ensuring the full implementation of the forthcoming policy on civilian harm; conduct regular audits of civilian harm prevention, mitigation, and response policies and practices throughout the U.S. military; monitoring, analysis and public dissemination of civil damage data; conduct post-strike assessments and investigations of harm to civilians, including past harm; recommend and issue fines and remedies for civil damages; and ensure lessons learned are reflected in updated doctrine, policies, procedures and practices.

Having this center as a hub that prioritizes the protection of civilians 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 mandate the Center to assess, investigate and report on past incidents of civil harm is also critical, given that Sec. Austin said that is not currently part of the Department’s plans despite the many known cases that have likely been dismissed prematurely.

meet the moment

Recognition today of the civilian harm caused by US military operations is both essential and long overdue. For twenty years, the US government has repeatedly failed to prevent, meaningfully investigate, publicly acknowledge, and repair harm to civilians. If passed, this legislation could address longstanding shortcomings in US policy, bolster ongoing Department of Defense reform efforts, and finally give civilians harmed by the conflict the attention they deserve. We urge Congress to meet this moment by supporting and passing this critical legislation.

Image: Dome of the Capitol building, Washington DC (via Getty Images).

About Natalee Broderick

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