AOAV recommendations to Ministry of Defence on development and implementation of effective casualty recording policies and processes

BACKGROUND AND CONTEXT

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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
10. 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
11. This paper recommends that the MoD establish a Casualty Recording Training and Doctrine Working Group (CR-TDWG).
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. 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
33. 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.
34. 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.
35. 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.
36. 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
37. 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.
38. 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.
39. Short Term Training Teams (STTTs) should ensure that international militaries receive casualty recording training.
    
    CAPACITY BUILDING WITH PARTNER FORCES
40. 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.
41. 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.

Appendix B: Non-binding international instruments and documents.

Appendix C: UK legislation and military manuals.

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

EXECUTIVE ORDER

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.

BARACK OBAMA

THE WHITE HOUSE,

July 1, 2016.

Appendix E: National Defense Authorization Act for Fiscal Year 2018.

https://www.congress.gov/115/plaws/publ91/PLAW-115publ91.pdf

                                 An Act

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

following:

            (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

        are relevant.

    (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

nongovernmental sources.

    (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

following:

            (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

        future operations.

            (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.

https://asc.army.mil/web/wp-content/uploads/2019/11/NDAA-2019.pdf

An Act

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

operations.

    (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

    States military;

        (2) the development and dissemination of best practices for

    reducing the likelihood of civilian casualties from United States

    military operations;

        (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

    available sources;

        (5) uniform processes and standards across the combatant

    commands for–

            (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

    nongovernmental organizations;

        (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

    operations”;

        (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

    paragraph (5):

        “(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.

https://congress.gov/116/bills/s1790/BILLS-116s1790enr.pdf

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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