Protection of Civilians in Military Operations Act

I 116TH CONGRESS 2D SESSION H. R. 7174 To enhance protections of civilians during United States military operations, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JUNE 11, 2020 Mr. KHANNA introduced the following bill; which was referred to the Committee on Armed Services A BILL To enhance protections of civilians during United States military operations, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Protection of Civilians 4 in Military Operations Act’’. 5 SEC. 2. SENSE OF CONGRESS. 6 It is the sense of Congress— 7 (1) to commend the Department of Defense for 8 the measures it has implemented and is currently 9 implementing to prevent, mitigate, track, investigate, 10 VerDate Sep 11 2014 19:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H7174.IH H7174 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 7174 IH learn from, respond to, and report civilian casualties 1 resulting from United States military operations; 2 (2) to agree with the Department that civilian 3 casualties are a tragic and unavoidable part of war, 4 and to recognize that— 5 (A) the Department endeavors to conduct 6 all military operations in compliance with the 7 international law of armed conflict and the laws 8 of the United States, including distinction, pro- 9 portionality, and the requirement to take fea- 10 sible precautions in planning and conducting 11 operations to reduce the risk of harm to civil- 12 ians and other protected persons and objects; 13 and 14 (B) the protection of civilians and other 15 protected persons and objects, in addition to a 16 legal obligation and a strategic interest, is a 17 moral and ethical imperative; 18 (3) that the Department has submitted to Con- 19 gress three successive annual reports on civilian cas- 20 ualties resulting from United States military oper- 21 ations for calendar years 2017, 2018, and 2019, and 22 has updated reports as appropriate; and 23 (4) to recognize the efforts of the Department, 24 both in policy and in practice, to reduce the harm 25 VerDate Sep 11 2014 19:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H7174.IH H7174 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 7174 IH to civilians and other protected persons and objects 1 resulting from United States military operations, 2 and to encourage the Department to make addi- 3 tional progress in— 4 (A) developing at all combatant commands 5 personnel and offices responsible for advising 6 the commanders of such commands, and inte- 7 grating into command strategy, the promotion 8 of observance of human rights and the protec- 9 tion of civilians and other protected persons 10 and objects; 11 (B) finalizing and implementing the policy 12 of the Department relating to civilian casualties 13 resulting from United States military oper- 14 ations, as required by section 936 of the John 15 S. McCain National Defense Authorization Act 16 for Fiscal Year 2019 (10 U.S.C. 134 note); 17 (C) finalizing Department-wide regulations 18 to implement section 1213 of the National De- 19 fense Authorization for Fiscal Year 2020 (Pub- 20 lic Law 116–92) for ex gratia payments for 21 damage, personal injury, or death that is inci- 22 dent to the use of force by the United States 23 Armed Forces, a coalition that includes the 24 United States, a military organization sup- 25 VerDate Sep 11 2014 19:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H7174.IH H7174 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 7174 IH porting the United States, or a military organi- 1 zation supporting the United States or such co- 2 alition; and 3 (D) professionalizing foreign partner forces 4 to reduce civilian casualties, including in con- 5 nection with train and equip programs, advise, 6 assist, accompany, and enable missions, and 7 fully combined and coalition operations. 8 SEC. 3. MODIFICATION OF ANNUAL REPORT ON CIVILIAN 9 CASUALTIES IN CONNECTION WITH UNITED 10 STATES MILITARY OPERATIONS. 11 Section 1057 of the National Defense Authorization 12 Act for Fiscal Year 2018 (10 U.S.C. 113 note) is amend- 13 ed— 14 (1) in subsection (b)— 15 (A) by redesignating paragraphs (2) 16 through (9) as paragraphs (3) through (10), re- 17 spectively; 18 (B) by inserting after paragraph (1) the 19 following new paragraph (2): 20 ‘‘(2) A list of each authorized advise, assist, ac- 21 company, and enable mission during the year cov- 22 ered by such report during which civilian casualties 23 or human rights abuses by partner forces were ob- 24 served or later reported.’’; and 25 VerDate Sep 11 2014 19:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H7174.IH H7174 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 7174 IH (C) in subparagraph (A) of paragraph (4), 1 as redesignated by subparagraph (A) of this 2 paragraph, by inserting before the semicolon 3 the following: ‘‘, and any measures in place for 4 preventing, mitigating, and responding to the 5 death or injury to civilians that occurs during 6 advise, assist, accompany, and enable missions 7 conducted by United States military personnel’’; 8 (2) in subsection (d)— 9 (A) in the second sentence, by striking ‘‘, 10 and shall be made available’’ and all that fol- 11 lows and inserting a period; and 12 (B) by adding at the end the following new 13 sentence: ‘‘The unclassified form of each report 14 shall be published on an Internet website of the 15 Department available to the public concurrently 16 with its submission to Congress.’’; 17 (3) by redesignating subsection (e) as sub- 18 section (f); and 19 (4) by inserting after subsection (d) the fol- 20 lowing new subsection (e): 21 ‘‘(e) HUMAN RIGHTS ABUSES DEFINED.—In this 22 section the term ‘human rights abuses’ has the meaning 23 given the term ‘gross violations of internationally recog- 24 VerDate Sep 11 2014 19:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H7174.IH H7174 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 7174 IH nized human rights’ in section 502B(d)(1) of the Foreign 1 Assistance Act of 1961 (22 U.S.C. 2304(d)(1)).’’. 2 SEC. 4. INTEGRITY OF CIVILIAN CASUALTY INVESTIGA- 3 TIONS. 4 (a) INVESTIGATIONS BY OFFICERS OUTSIDE UNIT 5 OR CHAIN OF COMMAND.—A commander in the Armed 6 Forces conducting an administrative investigation, com- 7 mander directed inquiry, or equivalent investigation on ci- 8 vilian casualties resulting from a United States military 9 operation that was undertaken by one or more units under 10 the command of the commander shall, to the extent prac- 11 ticable, select as an officer to conduct such investigation 12 an officer in the Armed Forces outside of such units or 13 chain of command. 14 (b) SEPARATION OF INVESTIGATIVE PERSONNEL 15 FROM PERSONNEL INVOLVED IN OPERATIONS.—The 16 military or civilian personnel of the Armed Forces who 17 conduct an investigation on civilian casualties resulting 18 from a United States military operation shall, to the ex- 19 tent practicable, be operationally separate from members 20 of the Armed Forces who were directly involved in such 21 operation. 22 (c) SITE VISITATIONS IN INVESTIGATIONS.— 23 (1) IN GENERAL.—Each investigation on civil- 24 ian casualties resulting from a United States mili- 25 VerDate Sep 11 2014 19:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7174.IH H7174 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 7174 IH tary operation shall, to the extent practicable, in- 1 clude a visit (including the interview of civilian sur- 2 vivors and witnesses after their informed consent) by 3 appropriate members of the United States Armed 4 Forces to each site at which civilian casualties were 5 confirmed or reasonably suspected in connection 6 with such operation. 7 (2) VISITS BY ALTERNATIVE PERSONNEL.—If 8 the Secretary of Defense determines that a visit by 9 members of the United States Armed Forces to a 10 site as otherwise required by paragraph (1) is not 11 practicable, the Secretary shall— 12 (A) memorialize, in writing, the justifica- 13 tion for such determination; 14 (B) make every reasonable effort to obtain 15 such a visit by appropriate military or civilian 16 personnel of a partner or coalition military 17 force, or by personnel of the national govern- 18 ment concerned, or a local government, capable 19 of making such a visit in connection with the 20 investigation concerned; and 21 (C) memorialize, in writing— 22 (i) the results of any visit under sub- 23 paragraph (B); or 24 VerDate Sep 11 2014 19:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H7174.IH H7174 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 7174 IH (ii) if no visit could be obtained under 1 that subparagraph, the gaps in evidence in 2 the investigation concerned as a result of 3 the lack of such a visit. 4 SEC. 5. COORDINATION BETWEEN GEOGRAPHIC COMBAT- 5 ANT COMMANDS AND THE DEPARTMENT OF 6 STATE. 7 (a) IN GENERAL.—Not later than 180 days after the 8 date of the enactment of this Act, the Secretary of Defense 9 shall direct each commander of a geographic combatant 10 command to coordinate with the Department of State to 11 establish and maintain an uninterrupted line of commu- 12 nication between such command and the Chief of Mission 13 (of the Chief’s designee) in any country in which such 14 command is conducting military operations in order to as- 15 sist in the response to reports of civilian casualties result- 16 ing from such military operations. 17 (b) PRIMARY OBJECTIVE.—The primary objective of 18 the line of communication under this section shall be to 19 serve as a channel for fielding and coordinating reports 20 of civilian casualties resulting from United States military 21 operations undertaken by the command concerned in the 22 country concerned. 23 VerDate Sep 11 2014 19:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H7174.IH H7174 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 7174 IH SEC. 6. DATABASE ON REPORTS ON INVESTIGATIONS. 1 (a) DATABASE REQUIRED.—Not later than one year 2 after the date of the enactment of this Act, the Secretary 3 of Defense shall establish and maintain within the Depart- 4 ment of Defense a database that preserves and organizes 5 reports of the Department on investigations of civilian cas- 6 ualties resulting from United States military operations 7 (including reports under section 1057 of the National De- 8 fense Authorization Act for Fiscal Year 2018, as amended 9 by section 3 of this Act), and the results of such investiga- 10 tions. 11 (b) SEARCHABILITY.—The database required by sub- 12 section (a) shall be searchable by personnel across the De- 13 partment. 14 (c) AVAILABILITY TO PUBLIC.—The public shall have 15 access to, and be able to search, the database required 16 by subsection (a) through an internet website of the De- 17 partment that is available to the public. For purposes of 18 such access, appropriate information in the database may 19 be maintained in a classified annex in the interests of the 20 national security of the United States, and access to such 21 annex appropriately limited. 22 (d) UPDATE.—The database required by subsection 23 (a) shall be updated not less frequently than once each 24 year. 25 VerDate Sep 11 2014 19:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H7174.IH H7174 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 7174 IH SEC. 7. RESOURCES TO IMPLEMENT DEPARTMENT OF DE- 1 FENSE POLICY ON CIVILIAN CASUALTIES IN 2 CONNECTION WITH UNITED STATES MILI- 3 TARY OPERATIONS. 4 (a) PURPOSE.—The purpose of this section is to fa- 5 cilitate fulfillment of the requirements in section 936 of 6 the John S. McCain National Defense Authorization Act 7 for Fiscal Year 2019 (10 U.S.C. 134 note). 8 (b) PERSONNEL.—Not later than 180 days after the 9 date of the enactment of this Act, the Secretary of Defense 10 shall do the following: 11 (1) Add to, and assign within, each of the 12 United States Central Command, the United States 13 Africa Command, the United States Special Oper- 14 ations Command, the United States European Com- 15 mand, the United States Southern Command, the 16 United States Indo-Pacific Command, and the 17 United States Northern Command not fewer than 18 two personnel who shall have primary responsibility 19 for the following in connection with military oper- 20 ations undertaken by such command: 21 (A) Providing guidance and oversight re- 22 lating to prevention of and response to civilian 23 casualties, promotion of observance of human 24 rights, and the protection of civilians and civil- 25 ian infrastructure. 26 VerDate Sep 11 2014 19:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H7174.IH H7174 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 7174 IH (B) Overseeing civilian casualty response 1 functions on behalf of the commander of such 2 command. 3 (C) Receiving reports of civilian casualties 4 and conduct of civilian casualty assessments. 5 (D) Analyzing civilian casualty incidents 6 and trends. 7 (E) Offering condolences for casualties, in- 8 cluding ex gratia payments. 9 (F) Ensuring the integration of activities 10 relating to civilian casualty mitigation, protec- 11 tion of civilians, and promotion of observance of 12 human rights in security cooperation activities. 13 (G) Consulting with non-governmental or- 14 ganizations on civilian casualty and human 15 rights matters. 16 (2) Add to, and assign within, the Office of the 17 Under Secretary for Policy not fewer than two per- 18 sonnel who shall have primary responsibility for im- 19 plementing and overseeing implementation by the 20 components of the Department of Defense of De- 21 partment policy on civilian casualties resulting from 22 United States military operations. 23 VerDate Sep 11 2014 19:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H7174.IH H7174 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 7174 IH (3) Add to, and assign within, the Joint Staff 1 not fewer than two personnel who shall have primary 2 responsibility for the following: 3 (A) Overseeing implementation by the com- 4 ponents of the Department of Defense of De- 5 partment policy on civilian casualties resulting 6 from United States military operations. 7 (B) Developing and sharing in the imple- 8 mentation of such policy. 9 (C) Communicating operational guidance 10 on such policy. 11 (c) TRAINING, SOFTWARE, AND OTHER REQUIRE- 12 MENTS.— 13 (1) IN GENERAL.—In each of fiscal years 2021 14 through 2023, the Secretary of Defense and each 15 Secretary of a military department may obliga [Text truncated for display. 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