BACKGROUND AND CONTEXT
- The UK has successfully supported and prioritised Human Security, the Responsibility to Protect (R2P) and Protection of Civilians (POC) on the international agenda. It has also championed related issues including Women, Peace and Security (WPS) and the Preventing Sexual Violence in Conflict Initiative (PSVI). However, these efforts have been arguably weakened by the Ministry of Defence’s slowness in developing and implementing an effective, coherent and consistent casualty recording policy. This reluctance has resulted in an absence of data on which to identify emerging threats or to assess the effectiveness of the UK’s approach to these priority areas.
- The current absence of transparent casualty recording by UK military commands creates an information vacuum which can be exploited by enemy forces for, among other things, propaganda purposes. It also undermines credibility and trust in UK military forces by the violence-affected population.
- The US Department of Defense (DoD) has implemented a civilian casualty policy since 2016, first as an Executive Order of the President and subsequently codified in annual national defence acts. These may provide a model for further development by MoD, and are included as appendices to this document.
- AOAV encourages the MoD to develop an effective and comprehensive approach to casualty recording which can be used by Defence personnel serving in MOD Head Office, the single-Services, the Joint Force Command, Defence Attachés and Military Training Teams. Such a policy should include both Directive (in accordance with government-mandated statute or policy) and Guidance sections. Appropriate training could be developed and undertaken by all relevant personnel.
- A codified casualty recording policy would be consistent with existing UK obligations under international law and would not create new legal obligations for MoD or UK forces. Rather, it would ensure the UK’s existing legal obligations under international and national law are met.
- The UK’s existing international legal obligations relating to casualty recording are laid out in Appendix A. These instruments create obligations relating to, inter alia, searching for and identifying the dead following military engagements, ensuring their dignified burial or returning their remains to the family, and recording and sharing information concerning the deceased.
- Non-binding statements of principle and best practice to which the UK is party are listed in Appendix B. Relevant instruments include the 1949 Geneva Conventions and the 1977 Additional Protocols, the International Covenant on Civil and Political Rights, the Convention Against Torture and the European Convention on Human Rights.
- These obligations have already been transposed into national legislation and military manuals including the Law of Armed Conflict Manual (2004), the International Criminal Court Act (2001) and the Military Manual (1958). These relevant provisions are detailed in Appendix C.
- Additional MoD documents relevant to this issue include
a. JSP 1325 Human Security in Military Operations
b. JSP 383 Joint Service Manual of the Law of Armed Conflict (Ed. 2004)
c. JSP 398 United Kingdom Manual of National Rules of Engagement
d. JSP 510 International Defence Training
e. JSP 887 Diversity, Inclusion and Social Conduct
f. JSP 900 UK Targeting Policy
- The present document makes detailed recommendations for incorporating all of the above into effective policies and processes for casualty recording, at both headquarters and field level. Where relevant, recommendations are drawn directly from US civilian casualty policy as incorporated in the national defence acts.
STRUCTURE AND POLICY
- This paper recommends that the MoD establish a Casualty Recording Training and Doctrine Working Group (CR-TDWG).
- The CR-TDWG should include:
a. Defence Academy staff.
b. Development, Concepts and Doctrine Centre (DCDC) Human Security Focal Point.
c. Subject matter experts returning from operations.
d. Permanent Joint Headquarters (PJHQ) Human Security Adviser.
e. Staff officers filling a Human Security Adviser role, from each single Service.
f. A chief Medical lead.
g. 77 Bde Human Security Adviser.
h. Single Service Training Organisations.
i. A targeting specialist.
- The CR-TDWG should develop casualty recording policy and detailed guidance to be implemented consistently across MoD at headquarters and operational level. In so-doing, the CR-TDWG should seek and incorporate expert advice from relevant academic institutions, civil society groups, and military peers. All future UK military operations should be required to undertake casualty recording, in accordance with CR-TDWG policy and guidance.
- The policy should recognise and give effect to the UK’s existing obligations under international law in this area. It should also draw together all relevant aspects of existing national legislation and military doctrine and guidance. The policy should be suitable for application in all contexts in which UK armed forces may operate. This includes land, sea and air operations, as well as all forms of international and intra-state armed conflicts, insurgencies and civil unrest. It should be equally applicable to covert and drone operations.
- The casualty recording guidance should develop standardised processes for recording, investigating and assessing possible casualties incurred in any area of UK military operations. Such guidance should require consideration of relevant information from all available sources and encourage constructive engagement with relevant intergovernmental and nongovernmental organizations.
- In consultation with CR-TDWG, MoD should establish a dedicated casualty recording unit at headquarters (HQ-CRU), staffed by permanently assigned and specially trained personnel. The HQ-CRU must be independent of the Public Affairs Office.
- All UK military or coalition commands should constitute a casualty recording unit (CRU) prior to or as soon as possible after UK forces are first deployed on operations. The command CRU will liaise with HQ-CRU, and will be staffed by personnel who have completed specialized training.
- CR-TDWG should periodically convene relevant agencies with defence, counterterrorism, intelligence, legal, civilian protection, and technology expertise to consult on casualty trends, and consider potential improvements to casualty mitigation efforts.
ROLES AND RESPONSIBILITIES – OPERATIONAL CASUALTY RECORDING UNITS
- In consultation with the CR-TDWG and HQ-CRU, all casualty recording units established within military or coalition commands in the field should adhere to the following principles as consistent with applicable law, including international humanitarian law.
- The CRU should actively pursue and facilitate the collection of all information about casualties incurred in the relevant military command’s geographical area of responsibility.
- The CRU should endeavour to record information on all casualties, not only those known or suspected to have been caused by UK forces. By endeavouring to contribute – in cooperation with military partners, internationally mandated entities, and specialised civil society organisations – to a comprehensive casualty record of all deaths in a specified geographical area MoD can ensure culpability for each death is accurately and publicly attributed to the responsible party. In particular, detailed and verifiable casualty records of civilian deaths can be used to counter misinformation and propaganda.
- The CRU should ensure that both civilian and known or suspected combatant deaths are recorded. It should not make assumptions about the combatant status of casualties prior to recording and investigating them. Casualties caused by drones or other ‘remote control’ systems must also be recorded.
- The CRU should review and investigate all alleged casualties brought to its attention by external actors. In so doing it should consider relevant and credible information from all available sources including other agencies, partner governments, and non-governmental organisations.
- The CRU should proactively make public all information it holds on casualties, to the fullest extent it is reasonable and safe to do so (in terms of national security and other factors). Information made public should be disaggregated and as detailed as possible, identifying specific incidents and individuals wherever possible. It should, ideally, be published in the language(s) of the affected populations as well as in English. The CRU should, where possible and appropriate, actively seek to share information on casualties with humanitarian agencies and relevant internationally mandated entities which may be able to make use of such data.
- All CRUs should conduct investigations and record data in accordance with detailed guidance developed by CR-TDWG. This guidance must be applied consistently across all commands and operations.
- In conducting investigations of possible casualties, the CRU should ensure that the timeframe and geographic area assessed is broad enough to cover all potentially relevant incidents. Predicted blast areas of specific weapons types should be assumed at their broadest potential extent. Where the number of casualties is unclear, the CRU should record a minimum and maximum range.
- The CRU should proactively seek information on possible casualties through all available means and sources. This should include reports from non-governmental organisations, civil society and media, including social media; interviews with victims’ families, survivors and witnesses; records held by local medical agencies and/or police and security services. Wherever possible, the CRU should arrange for on-site investigation of a suspected casualty incident as soon as the security situation allows.
- The CRU should establish a clear, public means for submission of reports of casualties. This may include internet-based means such as a web form or email contact details. The CRU should ensure this mechanism is widely publicized within the area of operations, including in hospitals and other medical facilities, in all relevant languages.
- Information from aerial surveillance or other military observation should be included in casualty investigations where relevant but must not form the only source of assessment. The CRU should explicitly recognize the limitations of the militarily observable in its reports, and make assessments of individual casualty allegations on the understanding that absence of proof is not proof of absence.
- Where there is disagreement or uncertainty over the occurrence or specific details of a casualty incident, the CRU should make this clear in its records. Disputed casualties should be recorded with neutral terminology which does not imply they are not credible simply because they cannot be fully confirmed. The CRU should state what steps were taken to investigate the possible casualty, what sources of information were used, what disparities or uncertainties arose, and the limitations of the evidence available.
- CRUs and MoD headquarters should engage routinely, constructively and transparently with civil society and non-governmental organisations which record casualties. Such engagement should be viewed as an opportunity to improve the accuracy and comprehensiveness of collective casualty records. To achieve maximum benefit from such collaboration, CRUs should:
a. Issue public guidelines on the minimum information required from external actors to facilitate investigation of a reported casualty by the CRU.
b. Share the processes it follows to evaluate external reports of casualties, both in general terms and in specific cases where findings are disputed. In particular, CRUs should clarify under what circumstances external casualty reports are rejected as false.
c. Routinely publish the date, location and target of all airstrikes and artillery assaults, including details of participating coalition partner forces where relevant, to allow independent investigation of possible casualties by external actors.
- When UK forces are engaged in coalition operations or working in partnership with military peers or contractors, the following additional principles should be adhered to:
a. The coalition agreement or framework should include mandatory casualty recording responsibilities for all participating forces. All participating forces should adhere to agreed and consistent best practice for recording, investigating, acknowledging and publishing information on casualties. Alternatively, a multinational CRU may be established with responsibility for recording, investigating and reporting on all casualties within the area of coalition operations.
b. All contracts with private military and security companies should include mandatory casualty recording requirements, in line with policy and guidance issued by CR-TDWG.
ROLES AND RESPONSIBILITIES – HEADQUARTERS CASUALTY RECORDING UNIT
- HQ-CRU should produce and publish an annual public report detailing all casualties recorded by UK commands in their area of operation. It should also take into account relevant and credible all-source reporting including information from media, civil society, public reports and nongovernmental sources. Where there is disagreement between command CRU casualty records and casualties reported by external actors, the annual report should explain the causes of the discrepancy.
- HQ-CRU annual report on casualties should include:
a. A list of all UK military operations during the year covered by the report where casualties were recorded or credibly alleged to have occurred.
b. Definitions of key terminology used within the report, which should be consistent with relevant international law, including ‘combatant’ and ‘civilian’.
c. A description of the processes applied by CRUs to investigate allegations of casualties including how it incorporates information from interviews with witnesses, survivors, public reports or other nongovernmental sources.
d. For each military operation, the report should provide disaggregated details of all recorded casualties to the fullest extent it is safe to do so. At minimum, the report should endeavour to provide comprehensive information on all casualties known or credibly alleged to have been caused by UK forces. This should include the date, location and number of casualties for each recorded incident.
e. A description of steps taken by MoD to reduce and mitigate harm to civilians during operations, including any changes in policy or procedure resulting from assessments of casualty records.
- The annual report should feed into ongoing review and development of UK POC strategy and tactics, targeting decisions, and efforts to identify and reduce risks to civilians. Civilian casualty data should also be used to review and, if necessary, adjust existing Collateral Damage Estimates (CDE) to ensure their accuracy. Updated CDEs should be used to inform policy on use of individual weapon types in specific conflict scenarios. This should include a review of the use of explosive and precision weapons in urban areas.
- Where casualty data suggests that international humanitarian or human rights law may have been violated, HQ-CRU should ensure the relevant cases and information are shared with the appropriate investigative and legal authorities. This applies equally whether the party suspected of committing the violation is a member of the UK armed forces or national of another state.
INCORPORATING CASUALTY RECORDING INTO UK DEFENCE TRAINING
- The CR-TDWG should develop and oversee the delivery of training courses on casualty recording for all relevant staff. Casualty recording training courses should include:
a. The operational and strategic benefits of casualty recording, and its role in relation to POC, WPS, PSVI, and other related areas.
b. Relevant international humanitarian law, international human rights law, regional law and national law relating to casualty recording, as well as relevant UN resolutions and initiatives (such as Sustainable Development Goal indicator 16.1.2).
c. Introduction to international and national casualty recording organisations and practices, both civil society-led and military.
- Single Services, through the CR-TDWG, should integrate casualty recording into all relevant training and career courses, including pre-deployment training. This should include at minimum all existing courses with a targeting, POC or Human Security element. Personnel who have attended a casualty recording training course should be registered on Joint Personnel Administration System.
- Short Term Training Teams (STTTs) should ensure that international militaries receive casualty recording training.
CAPACITY BUILDING WITH PARTNER FORCES
- MoD should develop and integrate principles and techniques of casualty recording in partner force agreements and standard operating procedures. Wherever possible and appropriate, MoD should encourage and participate in sharing of casualty information among partner forces. Collaboration of this type will facilitate more accurate and comprehensive documentation of conflict deaths.
- MoD should support efforts to build partner forces’ capabilities to record, investigate and assess information on casualties. MoD should encourage transparency, including partner forces’ public acknowledgement of responsibility for casualties and regular public reporting of information on known or suspected casualties.
Appendix A: Legally binding international instruments and customary international law.
|Legal status||Instrument||Summary of relevant obligations contained therein||Applicability to United Kingdom|
|Customary international law, binding||Customary IHL Rule 112||Whenever circumstances permit, and particularly after an engagement, each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the dead without adverse distinction.||Bound|
|Customary international law, binding||Customary IHL Rule 113||Each party to the conflict must take all possible measures to prevent the dead from being despoiled. Mutilation of dead bodies is prohibited.||Bound|
|Customary international law, binding||Customary IHL Rule 114||Parties to the conflict must endeavour to facilitate the return of the remains of the deceased upon request of the party to which they belong or upon the request of their next of kin. They must return their personal effects to them.||Bound|
|Customary international law, binding||Customary IHL Rule 115||The dead must be disposed of in a respectful manner and their graves respected and properly maintained.||Bound|
|Customary international law, binding||Customary IHL Rule 116||With a view to the identification of the dead, each party to the conflict must record all available information prior to disposal and mark the location of the graves.||Bound|
|Customary international law, binding||Customary IHL Rule 117||Each party to the conflict must take all feasible measures to account for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate.||Bound|
|IHL, binding||III Geneva Convention 1949|| Art. 120:
[…] Death certificates in the form annexed to the present
Convention, or lists certified by a responsible officer, of all persons who
die as prisoners of war shall be forwarded as rapidly as possible to the
Prisoner of War Information Bureau established in accordance with Article 122. The death certificates or certified lists shall show
particulars of identity as set out in the third paragraph of Article 17, and
also the date and place of death, the cause of death, the date and place of
burial and all particulars necessary to identify the graves.|
The burial or cremation of a prisoner of war shall be preceded by a medical examination of the body with a view to confirming death and enabling a report to be made and, where necessary, establishing identity.
The detaining authorities shall ensure that prisoners of war who have died in captivity are honourably buried, if possible according to the rites of the religion to which they belonged, and that their graves are respected, suitably maintained and marked so as to be found at any time. Wherever possible, deceased prisoners of war who depended on the same Power shall be interred in the same place.
Deceased prisoners of war shall be buried in individual graves unless unavoidable circumstances require the use of collective graves. Bodies may be cremated only for imperative reasons of hygiene, on account of the religion of the deceased or in accordance with his express wish to this effect. In case of cremation, the fact shall be stated and the reasons given in the death certificate of the deceased.
In order that graves may always be found, all particulars of burials and graves shall be recorded with a Graves Registration Service established by the Detaining Power. Lists of graves and particulars of the prisoners of war interred in cemeteries and elsewhere shall be transmitted to the Power on which such prisoners of war depended. Responsibility for the care of these graves and for records of any subsequent moves of the bodies shall rest on the Power controlling the territory, if a Party to the present Convention. These provisions shall also apply to the ashes, which shall be kept by the Graves Registration Service until proper disposal thereof in accordance with the wishes of the home country.
|IHL, binding||IV Geneva Convention 1949|| Art. 16:
[…] As far as military considerations allow, each Party to the
conflict shall facilitate the steps taken to search for the killed and
wounded, to assist the shipwrecked and other persons exposed to grave danger,
and to protect them against pillage and ill-treatment.
Each Party to the conflict shall facilitate enquiries made by
members of families dispersed owing to the war, with the object of renewing
contact with one another and of meeting, if possible. It shall encourage, in
particular, the work of organizations engaged on this task provided they are
acceptable to it and conform to its security regulations.
[…] Deaths of internees shall be certified in every case by a
doctor, and a death certificate shall be made out, showing the causes of
death and the conditions under which it occurred.|
An official record of the death, duly registered, shall be drawn up in accordance with the procedure relating thereto in force in the territory where the place of internment is situated, and a duly certified copy of such record shall be transmitted without delay to the Protecting Power as well as to the Central Agency referred to in Article 140. Art. 130: The detaining authorities shall ensure that internees who die while interned are honourably buried, if possible according to the rites of the religion to which they belonged, and that their graves are respected, properly maintained, and marked in such a way that they can always be recognized.
Deceased internees shall be buried in individual graves unless unavoidable circumstances require the use of collective graves. Bodies may be cremated only for imperative reasons of hygiene, on account of the religion of the deceased or in accordance with his expressed wish to this effect. In case of cremation, the fact shall be stated and the reasons given in the death certificate of the deceased. The ashes shall be retained for safe-keeping by the detaining authorities and shall be transferred as soon as possible to the next of kin on their request.
As soon as circumstances permit, and not later than the close of hostilities, the Detaining Power shall forward lists of graves of deceased internees to the Powers on whom the deceased internees depended, through the Information Bureaux provided for in Article 136. Such lists shall include all particulars necessary for the identification of the deceased internees, as well as the exact location of their graves. Art. 131: Every death or serious injury of an internee, caused or suspected to have been caused by a sentry, another internee or any other person, as well as any death the cause of which is unknown, shall be immediately followed by an official enquiry by the Detaining Power.
A communication on this subject shall be sent immediately to the Protecting Power. The evidence of any witnesses shall be taken, and a report including such evidence shall be prepared and forwarded to the said Protecting Power. Art. 139: Each national Information Bureau shall, furthermore, be responsible for collecting all personal valuables left by protected persons mentioned in Article 136, in particular those who have been repatriated or released, or who have escaped or died; it shall forward the said valuables to those concerned, either direct, or, if necessary, through the Central Agency. […]
|IHL, binding||Geneva Convention Additional Protocol I, 1977|| Art. 32:
In the implementation of this Section, the activities of the
High Contracting Parties, of the Parties to the conflict and of the
international humanitarian organizations mentioned in the Conventions and in
this Protocol shall be prompted mainly by the right of families to know the
fate of their relatives.
1. As soon as circumstances permit, and at the latest from the
end of active hostilities, each Party to the conflict shall search for the
persons who have been reported missing by an adverse Party. Such adverse
Party shall transmit all relevant information concerning such persons in order
to facilitate such searches.|
2. In order to facilitate the gathering of information pursuant to the preceding paragraph, each Party to the conflict shall, with respect to persons who would not receive more favourable consideration under the Conventions and this Protocol:
(a) record the information specified in Article 138 of the Fourth Convention in respect of such persons who have been detained, imprisoned or otherwise held in captivity for more than two weeks as a result of hostilities or occupation, or who have died during any period of detention;
(b) to the fullest extent possible, facilitate and, if need be, carry out the search for and the recording of information concerning such persons if they have died in other circumstances as a result of hostilities or occupation.
3. Information concerning persons reported missing pursuant to paragraph 1 and requests for such information shall be transmitted either directly or through the Protecting Power or the Central Tracing Agency of the International Committee of the Red Cross or national Red Cross (Red Crescent, Red Lion and Sun) Societies. Where the information is not transmitted through the International Committee of the Red Cross and its Central Tracing Agency, each Party to the conflict shall ensure that such information is also supplied to the Central Tracing Agency.
4. The Parties to the conflict shall endeavour to agree on arrangements for teams to search for, identify and recover the dead from battlefield areas, including arrangements, if appropriate, for such teams to be accompanied by personnel of the adverse Party while carrying out these missions in areas controlled by the adverse Party. Personnel of such teams shall be respected and protected while exclusively carrying out these duties. Art. 34: 1. The remains of persons who have died for reasons related to occupation or in detention resulting from occupation or hostilities and those of persons not nationals of the country in which they have died as a result of hostilities shall be respected, and the gravesites of all such persons shall be respected, maintained and marked as provided for in Article 130 of the Fourth Convention, where their remains or gravesites would not receive more favourable consideration under the Conventions and this Protocol.
2. As soon as circumstances and the relations between the adverse Parties permit, the High Contracting Parties in whose territories graves and, as the case may be, other locations of the remains of persons who have died as a result of hostilities or during occupation or in detention are situated, shall conclude agreements in order:
(a) to facilitate access to the gravesites by relatives of the deceased and by representatives of official graves registration services and to regulate the practical arrangements for such access;
(b) to protect and maintain such gravesites permanently;
(c) to facilitate the return of the remains of the deceased and of personal effects to the home country upon its request or, unless that country objects, upon the request of the next of kin.
|IHL, binding||Geneva Convention Additional Protocol II, 1977||Art. 8: Whenever circumstances permit, and particularly after an engagement, all possible measure shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead, prevent their being despoiled, and decently dispose of them.||Party|
|IHRL, binding||International Convention on Civil and Political Rights (ICCPR)||Preamble: […] Recognizing that these rights derive from the inherent dignity of the human person […] Art. 6: Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. […] Art. 7: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. […] Art. 9: Everyone has the right to liberty and security of person. […] Art. 16: Everyone shall have the right to recognition everywhere as a person before the law. Art. 17: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Art. 18: Everyone shall have the right to freedom of thought, conscience and religion. Art. 23: The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.||Party|
|IHRL, binding||International Covenant on Economic, Social and Cultural Rights||Preamble: […] Recognizing that these rights derive from the inherent dignity of the human person […] Art. 10: […] The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society […]||Party|
|IHRL, binding||Convention Against Torture||Preamble: […] Recognizing that those rights derive from the inherent dignity of the human person […] Art. 1: For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Art. 2: 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. […]||Party|
|IHRL, binding||European Convention on Human Rights||Art. 2: Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. […] Art. 3: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Art. 8: Everyone has the right to respect for his private and family life, his home and his correspondence. […] Art. 9: Everyone has the right to freedom of thought, conscience and religion […]||Party|
|International Criminal Law, binding||Rome Statute of the International Criminal Court||Art. 8: […] 2. For the purpose of this Statute, “war crimes” means: […] Committing outrages upon personal dignity, in particular humiliating and degrading treatment; […]||Party|
Appendix B: Non-binding international instruments and documents.
|Instrument||Summary of relevant obligations contained therein|
|Universal Declaration of Human Rights|| Preamble:
Whereas the peoples of the United Nations have in the Charter
reaffirmed their faith in fundamental human rights, in the dignity and worth
of the human person
Everyone has the right to life, liberty and security of person.
No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.
the right to recognition everywhere as a person before the law.
Everyone has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights granted him by
the constitution or by law.
No one shall be subjected to arbitrary interference with his
privacy, family, home or correspondence, nor to attacks upon his honour and
reputation. Everyone has the right to the protection of the law against such
interference or attacks.
(3) The family is the natural and fundamental group unit of
society and is entitled to protection by society and the State.
(1) Everyone has the right to own property alone as well as in
association with others.|
(2) No one shall be arbitrarily deprived of his property. Art. 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Art. 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
|Security Council Resolution on Missing Persons in Armed Conflict S/RES/2474 (2019)||Preamble: […] Expressing its concern about the dramatic increase in persons reported missing as a result of armed conflict, which entails consequences for the missing persons themselves and for their families, especially women and children, and communities in the immediate and long-term, and reaffirming in this regard the importance of allowing families to know the fate and whereabouts of their missing relatives, consistent with applicable international humanitarian law, which is of crucial humanitarian importance; […] OP. 2: Calls upon parties to armed conflict to take all appropriate measures, to actively search for persons reported missing, to enable the return of their remains, and to account for persons reported missing without adverse distinction and to put in place appropriate channels enabling response and communication with families on the search process, and to consider the provision of information on available services in relation to administrative, legal, economic and psychosocial difficulties and needs they may face as a result of having a missing relative, including through an interaction with competent national and international organizations and institutions; OP.8: Urges parties to armed conflict to search for and recover the dead as a result of armed conflict, identify them, including by recording all available information and mapping the location of burial sites, to respect the remains of the dead, including by respecting and properly maintaining their graves, and to return them, whenever possible, to their relatives, consistent with applicable obligations under international humanitarian law and human rights law; as it relates to personal data protection, to refrain from deliberate relocation of remains from mass graves, to avoid excavation and recovery efforts by untrained persons that result in the damage or destruction of human remains, and to ensure that, in any exhumation or recovery effort, data possibly leading to the identification of the deceased person is adequately collected and recorded; OP. 11: Stresses the importance of strengthening the role and capacity of the existing national, regional and international mechanisms that assist in addressing the issue of missing persons as a result of armed conflict, to provide advice and support to Member States, other national, international and regional organizations and mechanisms in this field to provide training, to exchange, as appropriate, on respective registries of missing persons cases, and to share best practices in close cooperation with all relevant organisations; OP. 13: Calls upon all Member States to engage in networking, exchange of experience, best practices and technical recommendations, and other means of cooperation and coordination with state institutions, and, as appropriate, with national commissions on missing persons, competent regional and international organizations and mechanisms; OP. 17: Encourages Member States to increase their voluntary financial, technical training and logistical assistance for states, upon their request, in support of exhumation and identification processes relevant to the search for missing persons as a result of armed conflict, in particular to advance forensic scientific and methodological efforts for the recovery, identification and management of bodies or human remains in a way that respects human dignity;|
|General Assembly resolution 73/178 entitled “Missing Persons” A/RES/73/178||Preamble: […] Bearing in mind that the question of missing persons entails consequences not only for the victims themselves, but also for their families, especially women, children and older persons, and in this regard recognizing the importance of addressing the legal situation of missing persons in connection with armed conflict and supporting their family members through national policies that include a gender perspective, as appropriate […] Stressing the importance of measures to prevent persons from going missing in connection with armed conflict, which may include enacting national legislation, ensuring detainee registration, providing appropriate training for armed forces, producing and providing proper means of identification, the establishment of information bureaux, grave registration services and registers of deaths and ensuring accountability in cases of missing persons, […] OP. 2: Calls upon States that are parties to an armed conflict to take all necessary measures, in a timely manner, to determine the identity and fate of persons reported missing in connection with the armed conflict, without any adverse distinction, and, to the greatest extent possible, to provide their family members, through appropriate channels, with all relevant information that they have on their fate, including their whereabouts or, if they are dead, the circumstances and cause of their death; OP. 8: Recognizes the need for appropriate means of identification and for the collection, protection and management of data on missing persons and unidentified remains, consistent with applicable international and national law, and urges all concerned States to cooperate with each other and with other concerned actors working in this area by, inter alia, providing all relevant information related to missing persons, including on their fate and whereabouts; OP. 11: Urges States that are parties to an armed conflict to cooperate, consistent with their international obligations, in order to effectively solve cases of missing persons, including by providing mutual assistance in terms of information-sharing, victim assistance, location and identification of missing persons and recovery, identification and return of human remains and, if possible, by identifying, mapping and preserving burial sites; OP. 13: Urges States, and encourages intergovernmental and non-governmental organizations, to take all necessary measures at the national, regional and international levels to address the problem of persons reported missing in connection with armed conflict without any adverse distinction and to provide appropriate assistance, as requested by the concerned States, and welcomes in this regard the establishment and efforts of commissions and working groups on missing persons; OP. 21: Requests the Secretary-General to continue to seek further the views of Member States and relevant agencies and to submit to the Human Rights Council at its relevant session and to the General Assembly at its seventy-fifth session a comprehensive report on the implementation of the present resolution, including relevant practical recommendations;|
|UN General Assembly, Res. 3220 (XXIX) 1974 (adopted by 95 votes in favour, none against and 32 abstentions)||parties to armed conflicts, regardless of their character, “to take such action as may be within their power … to facilitate the disinterment and the return of remains, if requested by their families”|
|Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law Adopted by General Assembly resolution 60/147 of 16 December 2005||Art. 3: The obligation to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law, includes, inter alia, the duty to: (a) Take appropriate legislative and administrative and other appropriate measures to prevent violations; (b) Investigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law; (c) Provide those who claim to be victims of a human rights or humanitarian law violation with equal and effective access to justice, as described below, irrespective of who may ultimately be the bearer of responsibility for the violation; and (d) Provide effective remedies to victims, including reparation, as described below. Art. 4: In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him. Moreover, in these cases, States should, in accordance with international law, cooperate with one another and assist international judicial organs competent in the investigation and prosecution of these violations. Art. 11: Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim’s right to the following as provided for under international law: (a) Equal and effective access to justice; (b) Adequate, effective and prompt reparation for harm suffered; (c) Access to relevant information concerning violations and reparation mechanisms. Art. 22: Satisfaction should include, where applicable, any or all of the following: (a) Effective measures aimed at the cessation of continuing violations; (b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations; (c) The search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities; […] (e) Public apology, including acknowledgement of the facts and acceptance of responsibility; […] (g) Commemorations and tributes to the victims; […]|
|Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions Recommended by Economic and Social Council resolution 1989/65 of 24 May 1989||Art. 1: Governments shall prohibit by law all extra-legal, arbitrary and summary executions and shall ensure that any such executions are recognized as offences under their criminal laws, and are punishable by appropriate penalties which take into account the seriousness of such offences. Exceptional circumstances including a state of war or threat of war, internal political instability or any other public emergency may not be invoked as a justification of such executions. Art. 9: There shall be thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances. Governments shall maintain investigative offices and procedures to undertake such inquiries. The purpose of the investigation shall be to determine the cause, manner and time of death, the person responsible, and any pattern or practice which may have brought about that death. It shall include an adequate autopsy, collection and analysis of all physical and documentary evidence and statements from witnesses. The investigation shall distinguish between natural death, accidental death, suicide and homicide. Art. 11: In cases in which the established investigative procedures are inadequate because of lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Art.12: The body of the deceased person shall not be disposed of until an adequate autopsy is conducted by a physician, who shall, if possible, be an expert in forensic pathology. Those conducting the autopsy shall have the right of access to all investigative data, to the place where the body was discovered, and to the place where the death is thought to have occurred. If the body has been buried and it later appears that an investigation is required, the body shall be promptly and competently exhumed for an autopsy. If skeletal remains are discovered, they should be carefully exhumed and studied according to systematic anthropological techniques. Art. 13: The body of the deceased shall be available to those conducting the autopsy for a sufficient amount of time to enable a thorough investigation to be carried out. The autopsy shall, at a minimum, attempt to establish the identity of the deceased and the cause and manner of death. The time and place of death shall also be determined to the extent possible. Detailed colour photographs of the deceased shall be included in the autopsy report in order to document and support the findings of the investigation. The autopsy report must describe any and all injuries to the deceased including any evidence of torture. Art. 16: Families of the deceased and their legal representatives shall be informed of, and have access to. any hearing as well as to all information relevant to the investigation, and shall be entitled to present other evidence. The family of the deceased shall have the right to insist that a medical or other qualified representative be present at the autopsy. When the identity of a deceased person has been determined, a notification of death shall be posted, and the family or relatives of the deceased shall be informed immediately. The body of the deceased shall be returned to them upon completion of the investigation.|
|Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999 (adopted by consensus)||all parties to an armed conflict to take effective measures to ensure that “every effort is made … to identify dead persons, inform their families and return their bodies to them”.|
|Updated Set of principles for the protection and promotion of human rights through action to combat impunity 2005||Principle 2: Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations. Principle 3: A people’s knowledge of the history of its oppression is part of its heritage and, as such, must be ensured by appropriate measures in fulfilment of the State’s duty to preserve archives and other evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments. Principle 4: Irrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims’ fate. Principle 5: States must take appropriate action, including measures necessary to ensure the independent and effective operation of the judiciary, to give effect to the right to know. Appropriate measures to ensure this right may include non-judicial processes that complement the role of the judiciary. Societies that have experienced heinous crimes perpetrated on a massive or systematic basis may benefit in particular from the creation of a truth commission or other commission of inquiry to establish the facts surrounding those violations so that the truth may be ascertained and to prevent the disappearance of evidence. Regardless of whether a State establishes such a body, it must ensure the preservation of, and access to, archives concerning violations of human rights and humanitarian law. Principle 19: States shall undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, particularly in the area of criminal justice, by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished. Principle 34: The right to reparation shall cover all injuries suffered by victims; it shall include measures of restitution, compensation, rehabilitation, and satisfaction as provided by international law. In the case of forced disappearance, the family of the direct victim has an imprescriptible right to be informed of the fate and/or whereabouts of the disappeared person and, in the event of decease, that person’s body must be returned to the family as soon as it has been identified, regardless of whether the perpetrators have been identified or prosecuted.|
Appendix C: UK legislation and military manuals.
|Instrument||Summary of provisions|
|UK LOAC Manual (2004)|| Recalls Additional Protocol I requirement to facilitate in every possible way the reunion of families dispersed as a result of armed conflict, to deal with their enquiries and (subject to security regulations) to facilitate the work of approved organizations engaged in this task.Recalls Additional Protocol II requirement that the dead must be protected against maltreatment and pillage. The mutilation of dead bodies is a war crime. Graves registration services must be officially established at the outbreak of hostilities and, as soon as circumstances permit, the adverse parties and any other concerned authorities are required to seek agreement for the return of remains of the deceased to the home state on that state’s request or on the request of the next of kin. In the absence of agreements relating either to protection and maintenance of grave sites or for the return of the deceased, the authorities of the territory in which the grave sites are situated may (a) offer to facilitate the return of the remains to the home state; and (b) if such an offer is not accepted within five years from the date of the offer, and after due notice, adopt arrangements for dealing with such remains in accordance with their own domestic laws relating to cemeteries and graves.Looting is an offence under the Service Discipline Acts. The personal effects of the dead should be collected in identifiable packets and sent with any available identity disc to the information bureau. The personal effects that are particularly envisaged here are money, all items of intrinsic or sentimental value and last wills or other documents of importance to the next of kin.Since some injuries sustained in, or as a result of, combat produce symptoms resembling death, the parties to a conflict are required to ensure that, in so far as circumstances permit, bodies are given an individual medical examination. This is a task for medical personnel and the objects of such examination are to confirm the fact of death, to establish the identity of the deceased and to enable a report about the death to be made.Where the deceased is in possession of two identity discs, one disc should remain on the body and the other should be sent with his personal effects to the information bureau. If the deceased was in possession of only one identity disc, that disc should remain on the body.Burial at sea of the dead is to be carried out individually as far as circumstances permit and is to be preceded by a careful examination, preferably a medical examination, of the bodies to confirm death, establish identity and to enable a report to be made. Where a double identity disc is used, one half of the disc should remain on the body.Whenever circumstances permit, and particularly after an engagement, all possible measures shall be taken without delay to search for the dead, prevent their being despoiled and decently dispose of them.The remains of the dead are to be honourably interred (unless burial at sea is appropriate), in so far as possible in individual graves, and, if possible, according to the rites of the religion to which the deceased belonged.Bodies must not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased. When cremation is carried out, the circumstances and the reasons for it must be stated in the death certificate. The ashes must be respectfully treated and kept by the official graves registration service until properly disposed of according to the wishes of the home country.Graves must be respected and properly maintained. They must be marked so that they may always be found and should, if possible, be grouped according to the nationality of the deceased. Graves registration services must be officially established at the outbreak of hostilities and, as soon as circumstances permit, the adverse parties and any other concerned authorities are required to seek agreement for the permanent protection and maintenance of grave sites; access to those grave sites by relatives of the deceased and the representatives of the official graves registration services; the return of remains of the deceased to the home state on that state’s request or, unless that state objects, on the request of the next of kin. Exhumation is permitted only (a) in accordance with an agreement on the matters dealt with in paragraph 7.36 [relating to respect for and maintenance of graves] |
; or (b) in accordance with overriding public necessity (which may include “medical or investigative necessity”). In such circumstances, the authorities of the territory in which the grave sites are situated are required to respect the remains and to give notice to the home state of the intended exhumation together with details of the intended place of re-interment. However, these provisions do not prevent the exhumation of temporary graves for the purpose of moving the remains to permanent graves in dignified, properly maintained cemeteries, such as those of the Commonwealth War Graves Commission.
– Each party must search for persons reported missing by an adverse party and also facilitate such searches by the provision of relevant information.
|UK ICC Act (2001)||– It is a punishable offence to commit a war crime as defined in Article 8(2)(b)(xxi) and (c)(ii) of the 1998 ICC Statute. [See Appendix A]|
|UK LOAC Pamphlet (1981)||– Whenever circumstances permit, and particularly after an engagement, parties to conflict must take all possible measures without delay to search for the dead.|
– Parties to conflict must try to make arrangements for joint teams from both sides to search for, identify and recover the dead from battlefield areas, such teams to be respected and protected while carrying out those duties.
– The dead must not be mutilated or despoiled.
– Cremation is allowed only on religious grounds or for imperative reasons of hygiene.
|UK Military Manual (1958)||– Belligerents must at all times, and particularly after an engagement, take all possible measures to search for the dead.|
– The dead must be protected against maltreatment and pillage, and the maltreatment of dead bodies is a war crime.
– Belligerents must make provision for honourable interment of the dead, if possible according to the rites of the religion to which the dead belong and in individual graves.
– The belligerents must also forward to each other last wills or other documents of importance to the next of kin; money and all articles of an intrinsic or sentimental value which are found on the dead.
– Bodies must not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased. When cremation is carried out the circumstances and reasons for it must be stated in detail on the death certificate. The ashes must be respectfully treated, and kept by the Graves Registration Service until properly disposed of according to the wishes of the home country.
– Graves must be respected and properly maintained.
– Belligerents must record as soon as possible any particulars which may assist in the identification of dead persons belonging to the opposing belligerent who fall into their hands. This information must be forwarded to the information bureau described in the P.O.W. Convention, Article 122. The belligerents must also forward to each other through that bureau certificates of death or duly authenticated lists of the dead; one half of the identity discs found on the bodies (the other half to be left on the body).
– Before being buried or cremated, the bodies must be carefully examined to ensure that life is extinct, and also to establish identity and enable a report to be made.
– As soon as possible, and at latest at the end of the hostilities, these services must exchange lists showing the location and marking of the graves and giving particulars of the dead interred therein.
– Graves must be marked so that they may always be found. Graves Registration Services must be officially established at the outbreak of hostilities, to allow of exhumations and to ensure the identification of the bodies and their possible transportation to the home country.
– Belligerents must facilitate enquiries by members of families dispersed as a result of war, with the object of renewing contact between them.
Appendix D: US Executive Order on Civilian Casualties
July 01, 2016
Executive Order — United States Policy on Pre- and Post-Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force
UNITED STATES POLICY ON PRE- AND POST-STRIKE MEASURES TO ADDRESS CIVILIAN CASUALTIES IN U.S. OPERATIONS INVOLVING THE USE OF FORCE
By the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct as follows:
Section 1. Purpose. United States policy on civilian casualties resulting from U.S. operations involving the use of force in armed conflict or in the exercise of the Nation’s inherent right of self-defense is based on our national interests, our values, and our legal obligations. As a Nation, we are steadfastly committed to complying with our obligations under the law of armed conflict, including those that address the protection of civilians, such as the fundamental principles of necessity, humanity, distinction, and proportionality.
The protection of civilians is fundamentally consistent with the effective, efficient, and decisive use of force in pursuit of U.S. national interests. Minimizing civilian casualties can further mission objectives; help maintain the support of partner governments and vulnerable populations, especially in the conduct of counterterrorism and counterinsurgency operations; and enhance the legitimacy and sustainability of U.S. operations critical to our national security. As a matter of policy, the United States therefore routinely imposes certain heightened policy standards that are more protective than the requirements of the law of armed conflict that relate to the protection of civilians.
Civilian casualties are a tragic and at times unavoidable consequence of the use of force in situations of armed conflict or in the exercise of a state’s inherent right of self-defense. The U.S. Government shall maintain and promote best practices that reduce the likelihood of civilian casualties, take appropriate steps when such casualties occur, and draw lessons from our operations to further enhance the protection of civilians.
Sec. 2. Policy. In furtherance of U.S. Government efforts to protect civilians in U.S. operations involving the use of force in armed conflict or in the exercise of the Nation’s inherent right of self-defense, and with a view toward enhancing such efforts, relevant departments and agencies (agencies) shall continue to take certain measures in present and future operations.
(a) In particular, relevant agencies shall, consistent with mission objectives and applicable law, including the law of armed conflict:
(i) train personnel, commensurate with their responsibilities, on compliance with legal obligations and policy guidance that address the protection of civilians and on implementation of best practices that reduce the likelihood of civilian casualties, including through exercises, pre-deployment training, and simulations of complex operational environments that include civilians;
(ii) develop, acquire, and field intelligence, surveillance, and reconnaissance systems that, by enabling more accurate battlespace awareness, contribute to the protection of civilians;
(iii) develop, acquire, and field weapon systems and other technological capabilities that further enable the discriminate use of force in different operational contexts;
(iv) take feasible precautions in conducting attacks to reduce the likelihood of civilian casualties, such as providing warnings to the civilian population (unless the circumstances do not permit), adjusting the timing of attacks, taking steps to ensure military objectives and civilians are clearly distinguished, and taking other measures appropriate to the circumstances; and
(v) conduct assessments that assist in the reduction of civilian casualties by identifying risks to civilians and evaluating efforts to reduce risks to civilians.
(b) In addition to the responsibilities above, relevant agencies shall also, as appropriate and consistent with mission objectives and applicable law, including the law of armed conflict:
(i) review or investigate incidents involving civilian casualties, including by considering relevant and credible information from all available sources, such as other agencies, partner governments, and nongovernmental organizations, and take measures to mitigate the likelihood of future incidents of civilian casualties;
(ii) acknowledge U.S. Government responsibility for civilian casualties and offer condolences, including ex gratia payments, to civilians who are injured or to the families of civilians who are killed;
(iii) engage with foreign partners to share and learn best practices for reducing the likelihood of and responding to civilian casualties, including through appropriate training and assistance; and
(iv) maintain channels for engagement with the International Committee of the Red Cross and other nongovernmental organizations that operate in conflict zones and encourage such organizations to assist in efforts to distinguish between military objectives and civilians, including by appropriately marking protected facilities, vehicles, and personnel, and by providing updated information on the locations of such facilities and personnel.
Sec. 3. Report on Strikes Undertaken by the U.S. Government Against Terrorist Targets Outside Areas of Active Hostilities.
(a) The Director of National Intelligence (DNI), or such other official as the President may designate, shall obtain from relevant agencies information about the number of strikes undertaken by the U.S. Government against terrorist targets outside areas of active hostilities from January 1, 2016, through December 31, 2016, as well as assessments of combatant and non-combatant deaths resulting from those strikes, and publicly release an unclassified summary of such information no later than May 1, 2017. By May 1 of each subsequent year, as consistent with the need to protect sources and methods, the DNI shall publicly release a report with the same information for the preceding calendar year.
(b) The annual report shall also include information obtained from relevant agencies regarding the general sources of information and methodology used to conduct these assessments and, as feasible and appropriate, shall address the general reasons for discrepancies between post-strike assessments from the U.S. Government and credible reporting from nongovernmental organizations regarding non-combatant deaths resulting from strikes undertaken by the U.S. Government against terrorist targets outside areas of active hostilities.
(c) In preparing a report under this section, the DNI shall review relevant and credible post-strike all-source reporting, including such information from nongovernmental sources, for the purpose of ensuring that this reporting is available to and considered by relevant agencies in their assessment of deaths.
(d) The Assistant to the President for National Security Affairs may, as appropriate, request that the head of any relevant agency conduct additional reviews related to the intelligence assessments of deaths from strikes against terrorist targets outside areas of active hostilities.
Sec. 4. Periodic Consultation. In furtherance of the policies and practices set forth in this order, the Assistant to the President for National Security Affairs, through the National Security Council staff, will convene agencies with relevant defense, counterterrorism, intelligence, legal, civilian protection, and technology expertise to consult on civilian casualty trends, consider potential improvements to U.S. Government civilian casualty mitigation efforts, and, as appropriate, report to the Deputies and Principals Committees, consistent with Presidential Policy Directive 1 or its successor. Specific incidents will not be considered in this context, and will continue to be examined within relevant chains of command.
Sec. 5. General Provisions.
(a) The policies and practices set forth above are not intended to alter, and shall be implemented consistent with, the authority and responsibility of commanders and other U.S. personnel to execute their mission as directed by the President or other appropriate authorities, which necessarily includes the inherent right of self-defense and the maintenance of good order and discipline among U.S. personnel. No part of this order modifies the chain of command of the U.S. Armed Forces or the authority of U.S. commanders.
(b) No part of this order modifies priorities in the collection of intelligence or the development, acquisition, or fielding of weapon systems and other technological capabilities.
(c) No part of this order shall prejudice or supplant established procedures pertaining to administrative or criminal investigative or judicial processes in the context of the military justice system or other applicable law and regulation.
(d) The policies set forth in this order are consistent with existing U.S. obligations under international law and are not intended to create new international legal obligations; nor shall anything in this order be construed to derogate from obligations under applicable law, including the law of armed conflict.
(e) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
THE WHITE HOUSE,
July 1, 2016.
Appendix E: National Defense Authorization Act for Fiscal Year 2018.
To authorize appropriations for fiscal year 2018 for military activities
of the Department of Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military personnel
strengths for such fiscal year, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the “National Defense Authorization Act
for Fiscal Year 2018’’.
[…] SEC. 1057. ANNUAL REPORT ON CIVILIAN CASUALTIES IN CONNECTION WITH
UNITED STATES MILITARY OPERATIONS.
(a) Annual Report Required.–Not later than May 1 each year, the
Secretary of Defense shall submit to the congressional defense
committees a report on civilian casualties caused as a result of United
States military operations during the preceding year.
(b) Elements.–Each report under subsection (a) shall set forth the
(1) A list of all the United States military operations
during the year covered by such report that were confirmed, or
reasonably suspected, to have resulted in civilian casualties.
(2) For each military operation listed pursuant to paragraph
(1), each of the following:
(A) The date.
(B) The location.
(C) An identification of whether the operation
occurred inside or outside of a declared theater of
active armed conflict.
(D) The type of operation.
(E) An assessment of the number of civilian and
enemy combatant casualties.
(3) A description of the process by which the Department of
Defense investigates allegations of civilian casualties
resulting from United States military operations.
(4) A description of steps taken by the Department to
mitigate harm to civilians in conducting such operations.
(5) Any other matters the Secretary of Defense determines
(c) Use of Sources.–In preparing a report under this section, the
Secretary of Defense shall take into account relevant and credible all-
source reporting, including information from public reports and
(d) Form.–Each report under subsection (a) shall be submitted in
unclassified form, but may include a classified annex.
(e) Sunset.–The requirement to submit a report under subsection (a)
shall expire on the date that is five years after the date of the
enactment of this Act.
[…] SEC. 1209. PLAN ON IMPROVEMENT OF ABILITY OF NATIONAL SECURITY
FORCES OF FOREIGN COUNTRIES
PARTICIPATING IN UNITED STATES CAPACITY
BUILDING PROGRAMS TO PROTECT CIVILIANS.
(a) Report on Plan.–Not later than 180 days after the date of the
enactment of this Act, the Secretary of Defense and the Secretary of
State shall jointly submit to the appropriate committees of Congress a
report setting forth a plan, to be implemented as part of appropriate
capacity building programs under section 333(c) of title 10, United
States Code, to improve the ability of national security forces of
foreign countries to protect civilians.
(b) Elements.–The plan required by subsection (a) shall include the
(1) Efforts to develop and integrate principles and
techniques on the protection of civilians in relevant partner
force standard operating procedures.
(2) Efforts to build partner capacity to collect, track, and
analyze civilian casualty data and apply lessons learned to
(3) Efforts to support enhanced investigatory and
accountability standards in partner forces in order to ensure
that such forces comply with the laws of armed conflict and
observe appropriate standards for human rights and the
protection of civilians.
(4) Efforts to increase partner transparency, which may
include the establishment of capabilities within partner
militaries to improve communication with the public.
(5) The estimated resources required to implement the
efforts described in paragraphs (1) through (4).
(6) The appropriate roles of the Department of Defense and
the Department of State in such efforts.
(7) Any other matters the Secretary of Defense and the
Secretary of State consider appropriate.
Appendix F: National Defense Authorization Act for Fiscal Year 2019.
To authorize appropriations for fiscal year 2019 for military activities
of the Department of Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military personnel
strengths for such fiscal year, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
(a) In General.–This Act may be cited as the “John S. McCain
National Defense Authorization Act for Fiscal Year 2019”.
(b) References.–Any reference in this or any other Act to the
“National Defense Authorization Act for Fiscal Year 2019” shall be
deemed to be a reference to the “John S. McCain National Defense
Authorization Act for Fiscal Year 2019’’.
[…] SEC. 936. RESPONSIBILITY FOR POLICY ON CIVILIAN CASUALTY MATTERS.
(a) Designation of Senior Civilian Official.–Not later than 90
days after the date of the enactment of this Act, the Under Secretary
of Defense for Policy shall designate a senior civilian official of the
Department of Defense within the Office of the Secretary of Defense at
or above the level of Assistant Secretary of Defense to develop,
coordinate, and oversee compliance with the policy of the Department
relating to civilian casualties resulting from United States military
(b) Responsibilities.–The senior civilian official designated
under subsection (a) shall ensure that the policy referred to in that
subsection provides for–
(1) uniform processes and standards across the combatant
commands for accurately recording kinetic strikes by the United
(2) the development and dissemination of best practices for
reducing the likelihood of civilian casualties from United States
(3) the development of publicly available means, including an
Internet-based mechanism, for the submittal to the United States
Government of allegations of civilian casualties resulting from
United States military operations;
(4) uniform processes and standards across the combatant
commands for reviewing and investigating allegations of civilian
casualties resulting from United States military operations,
including the consideration of relevant information from all
(5) uniform processes and standards across the combatant
(A) acknowledging the responsibility of the United States
military for civilian casualties resulting from United States
military operations; and
(B) offering ex gratia payments to civilians who have been
injured, or to the families of civilians killed, as a result of
United States military operations, as determined to be
necessary by the designated senior civilian official;
(6) regular engagement with relevant intergovernmental and
(7) public affairs guidance with respect to matters relating to
civilian casualties alleged or confirmed to have resulted from
United States military operations; and
(8) such other matters with respect to civilian casualties
resulting from United States military operations as the designated
senior civilian official considers appropriate.
(c) Report.–Not later than 180 days after the date of the
enactment of this Act, the senior civilian official designated under
subsection (a) shall submit to the congressional defense committees a
report that describes–
(1) the policy developed by the senior civilian official under
that subsection; and
(2) the efforts of the Department to implement such policy.
[…] SEC. 1062. IMPROVEMENT OF ANNUAL REPORT ON CIVILIAN CASUALTIES IN
CONNECTION WITH UNITED STATES MILITARY OPERATIONS.
(a) Modification and Expansion of Elements.–Subsection (b) of
section 1057 of the National Defense Authorization Act for Fiscal Year
2018 (Public Law 115-91) is amended–
(1) in paragraph (1), by inserting “, including each specific
mission, strike, engagement, raid, or incident,” after “military
(2) in paragraph (2)(E), by inserting before the period at the
end the following: “, including a differentiation between those
killed and those injured”;
(3) in paragraph (3), by inserting before the period at the end
the following: “, and, when appropriate, makes ex gratia payments
to the victims or their families”;
(4) by redesignating paragraph (5) as paragraph (6); and
(5) by inserting after paragraph (4) the following new
“(5) Any update or modification to any report under this
section during a previous year.”.
(b) Scope of Unclassified Form of Report.–Subsection (d) of such
section is amended by adding at the end the following new sentence:
“The unclassified form of each report shall, at a minimum, be
responsive to each element under subsection (b) of a report under
subsection (a), and shall be made available to the public at the same
time it is submitted to Congress (unless the Secretary certifies in
writing that the publication of such information poses a threat to the
national security interests of the United States).”.
Appendix G: National Defense Authorisation Act for Fiscal Year 2020.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘National Defense Authorization Act for Fiscal Year 2020’’.
[…] SEC. 1210. LEGAL INSTITUTIONAL CAPACITY BUILDING INITIATIVE FOR FOREIGN DEFENSE INSTITUTIONS.
(a) INITIATIVE.—The Secretary of Defense may carry out, in accordance with section 332 of title 10, United States Code, an initiative of legal institutional capacity building in collaboration with the appropriate ministry of defense (or security agency serving a similar defense function) legal institutions that support the efforts of one or more foreign countries to establish or improve legal institutional capacity.
(b) PURPOSE.—The purpose of the initiative under subsection (a) is to enhance, through advisory services, training, or related training support services, as appropriate, the legal institutional capacity of the applicable foreign country to do the following: […]
(7) Build capacity—
(A) to provide for the protection of civilians consistent with the law of armed conflict and human rights law; and
(B) to investigate incidents of civilian casualties. […]
SEC. 1282. MODIFICATION OF RESPONSIBILITY FOR POLICY ON CIVILIAN CASUALTY MATTERS.
Section 936 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232; 10 U.S.C. 134 note) is amended—
(1) in subsection (b)—
(A) in paragraph (3), by inserting ‘‘appropriate to the specific regional circumstances’’ after ‘‘publicly available means’’;
(B) in paragraph (5)—
(i) in subparagraph (A), by inserting ‘‘, including for acknowledging the status of any individuals killed or injured who were believed to be enemy combatants, but subsequently determined to be non-combatants’’ after ‘‘operations’’; and
(ii) in subparagraph (B)—
(I) by inserting ‘‘or other assistance’’ after ‘‘payments’’; and
(II) by striking ‘‘necessary’’ and inserting ‘‘reasonable and culturally appropriate’’; and
(C) in paragraph (7), by striking ‘‘and’’ at the end;
(D) by redesignating paragraph (8) as paragraph (9); and
(E) by inserting after paragraph (7) the following:
‘‘(8) cultivating, developing, retaining, and disseminating—
‘‘(A) lessons learned for integrating civilian protection into operational planning and identifying the proximate cause or causes of civilian casualties; and
‘‘(B) practices developed to prevent, mitigate, or respond to such casualties;’’;
(2) by redesignating subsection (c) as subsection (d);
(3) by inserting after subsection (b) the following:
‘‘(c) COORDINATION.—The senior civilian official designated under subsection (a) shall develop and implement steps to increase coordination with the relevant Chiefs of Mission and other appropriate positions in the Department of State with respect to the policies required pursuant to subsection (a) and other matters or assistance related to civilian harm, resulting from military operations.’’; and
(4) by inserting after subsection (d), as so redesignated, the following:
‘‘(e) BRIEFING.—Not later than 180 days after the date of the enactment of this subsection, the senior civilian official designated under subsection (a) shall provide to the congressional defense committees a briefing on—
‘‘(1) the updates made to the policy developed by the senior civilian official pursuant to this section; and
‘‘(2) the efforts of the Department to implement such updates.’’.
SEC. 1703. MODIFICATION OF ANNUAL REPORT ON CIVILIAN CASUALTIES IN CONNECTION WITH UNITED STATES MILITARY OPERATIONS.
(a) IN GENERAL.—Section 1057 of the National Defense Authorization Act for Fiscal Year 2018 (Public Law 115–91), as amended by section 1062 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232), is amended—
(1) in subsection (b)—
(A) by redesignating paragraphs (5) and (6) as paragraphs (8) and (9), respectively; and
(B) by striking paragraphs (3) and (4) and inserting the following new paragraphs:
‘‘(3) A description of the process by which the Department of Defense investigates allegations of civilian casualties resulting from United States military operations, including how the Department incorporates information from interviews with witnesses, civilian survivors of United States operations, and public reports or other nongovernmental sources.
‘‘(4) A description of—
‘‘(A) steps taken by the Department to mitigate harm to civilians in conducting such operations; and
‘‘(B) in the case of harm caused by such an operation to a civilian, any ex gratia payment or other assistance provided to the civilian or the family of the civilian.
‘‘(5) A description of any allegations of civilian casualties made by public or non-governmental sources formally investigated by the Department of Defense.
‘‘(6) A description of the general reasons for any discrepancies between the assessments of the United States and reporting from nongovernmental organizations regarding non- combatant deaths resulting from strikes and operations undertaken by the United States.
‘‘(7) The definitions of ‘combatant’ and ‘non-combatant’ used in the preparation of the report, which shall be consistent with the laws of armed conflict.’’; and
(2) in subsection (e), by striking ‘‘five years’’ and inserting ‘‘seven years’’. […]
SEC. 1721. ASSESSMENT OF STANDARDS, PROCESSES, PROCEDURES, AND POLICY RELATING TO CIVILIAN CASUALTIES.
(a) ASSESSMENT.—The Secretary of Defense shall seek to enter into an agreement with a federally funded research and development center for the conduct of an independent assessment of Department of Defense standards, processes, procedures, and policy relating to civilian casualties resulting from United States military operations.
(b) MATTERS TO BE CONSIDERED.—In conducting the assessment under this section, the federally funded research and development center shall consider the following matters:
(1) Department of Defense policy relating to civilian casualties resulting from United States military operations.
(2) Standards, processes, and procedures for internal assessments and investigations of civilian casualties resulting from United States military operations.
(3) Standards, processes, and procedures for identifying, assessing, investigating, and responding to reports of civilian casualties resulting from United States military operations from the public and non-governmental entities and sources.
(4) Combatant command resourcing and organizational constructs for assessing and investigating civilian casualties resulting from United States military operations.
(5) Mechanisms for public and non-governmental entities to report civilian casualties that may have resulted from United States military operations to the Department of Defense.
(6) Standards and processes for accurately recording kinetic strikes, including raids, strikes, and other missions, and civilian casualties resulting from United States military operations.
(7) An analysis of general reasons for any disparity between third party public estimates and official United States Government estimates of civilian casualties resulting from United States or joint military operations.
(8) The standardization of dissemination and institutionalization across the Department of Defense and the combatant commands of lessons learned from United States military operations as a means of reducing the likelihood of civilian casualties from United States military operations.
(9) Any other matters the Secretary of Defense determines appropriate.
(c) RECOMMENDATIONS FOR IMPROVEMENTS.—The results of the assessment under this section shall include recommendations for improvements to standards, processes, procedures, policy, and organizational constructs relating to civilian casualties resulting from United States military operations.
(d) SUBMISSION OF REPORT.—
(1) IN GENERAL.—Not later than July 1, 2020, the Secretary of Defense shall submit to the congressional defense committees a report setting forth an unaltered copy of the assessment under this section, together with the views of the Secretary on the assessment and on the recommendations included pursuant to subsection (c).
(2) FORM OF REPORT.—The report under paragraph (1) shall be submitted in unclassified form, but may contain a classified annex.
(3) PUBLIC AVAILABILITY.—The Secretary shall make the unclassified form of the report under paragraph (1) available to the public.
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