II 

117TH CONGRESS 

2D SESSION S. 4108 

To enhance protections of civilians during United States military operations, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 28, 2022 

Ms. WARREN (for herself, Mr. DURBIN, Mr. MERKLEY, and Mr. SANDERS) 

introduced the following bill; which was read twice and referred to the 

Committee on Armed Services 

A BILL 

To enhance protections of civilians during United States 

military operations, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Protection of Civilians 

5 in Military Operations Act’’. 

6 SEC. 2. SENSE OF CONGRESS. 

7 It is the sense of Congress— 

8 (1) to commend the Department of Defense for 

9 its renewed commitment to preventing and address10 ing harm to civilians resulting from United States 


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1 military operations and work to develop an action 

2 plan to implement meaningful changes to further 

3 prevent and address such harm; 

4 (2) to agree with the Department that harms to 

5 civilians is a tragic and unavoidable part of war, and 

6 to recognize that— 

7 (A) the Department endeavors to conduct 

8 all military operations in compliance with the 

9 international law of armed conflict and the laws 

10 of the United States, including distinction, pro11 portionality, and the requirement to take fea12 sible precautions in planning and conducting 

13 operations to reduce the risk of harm to civil14 ians and other protected persons and objects; 

15 (B) the protection of civilians and other 

16 protected persons and objects, in addition to a 

17 legal obligation and a strategic interest, is a 

18 moral and ethical imperative; 

19 (C) despite those commitments, military 

20 operations of the United States and partner 

21 countries during the two decades before the 

22 date of the enactment of this Act have resulted 

23 in civilian deaths and injuries, and damage to 

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1 ical infrastructure, in at least Afghanistan, 

2 Iraq, Pakistan, Somalia, Syria, and Yemen; and 

3 (D) more must be done to improve the pro4 tection of civilians; 

5 (3) that the Department has submitted to Con6 gress four successive annual reports on civilian cas7 ualties resulting from United States military oper8 ations for calendar years 2017, 2018, 2019, and 

9 2020, and has updated reports as appropriate; and 

10 (4) to recognize the efforts of the Department, 

11 both in policy and in practice, to reduce the harm 

12 to civilians and other protected persons and objects 

13 resulting from United States military operations, 

14 and to encourage the Department to make addi15 tional progress in— 

16 (A) developing at all combatant commands 

17 personnel and offices responsible for advising 

18 the commanders of such commands, and inte19 grating into command strategy, the promotion 

20 of observance of human rights and the protec21 tion of civilians and other protected persons 

22 and objects; 

23 (B) finalizing and implementing the policy 

24 of the Department relating to civilian casualties 

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1 ations, as required by section 936 of the John 

2 S. McCain National Defense Authorization Act 

3 for Fiscal Year 2019 (Public Law 115–232; 10 

4 U.S.C. 134 note); 

5 (C) finalizing and implementing Depart6 ment-wide regulations to implement section 

7 1213 of the National Defense Authorization for 

8 Fiscal Year 2020 (Public Law 116–92; 10 

9 U.S.C. 2731 note), for ex gratia payments for 

10 damage, personal injury, or death that is inci11 dent to the use of force by the United States 

12 Armed Forces, a coalition that includes the 

13 United States, a military organization sup14 porting the United States, or a military organi15 zation supporting the United States or such co16 alition; and 

17 (D) professionalizing foreign partner forces 

18 to minimize, mitigate, and respond to harm to 

19 civilians, including in connection with arms 

20 transfers, train and equip programs, advise, as21 sist, accompany, and enable missions, and fully 

22 combined and coalition operations. 

23 SEC. 3. INTEGRITY OF CIVILIAN HARM INVESTIGATIONS. 

24 (a) INVESTIGATIONS BY OFFICERS OUTSIDE UNIT

25 OR CHAIN OF COMMAND.—A commander in the Armed 


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1 Forces conducting an administrative investigation, com2 mander directed inquiry, or equivalent investigation of 

3 harms to civilians resulting from a United States military 

4 operation that was undertaken by one or more units under 

5 the command of the commander shall— 

6 (1) to the extent practicable, select as an officer 

7 to conduct such investigation an officer in the 

8 Armed Forces outside of such units or chain of com9 mand; or 

10 (2) if selecting an officer outside of such units 

11 or chain of command is not practicable, include an 

12 explanation in the investigative report and submit to 

13 the Center of Excellence described in section 7 a re14 port describing the reasons such a selection was not 

15 practicable. 

16 (b) SEPARATION OF INVESTIGATIVE PERSONNEL

17 FROM PERSONNEL INVOLVED IN OPERATIONS.—The 

18 military or civilian personnel of the Armed Forces who 

19 conduct an investigation on civilian casualties resulting 

20 from a United States military operation shall, to the ex21 tent practicable, be operationally separate from members 

22 of the Armed Forces who were directly involved in such 

23 operation. 

24 (c) WITNESS INTERVIEWS AND SITE VISITATIONS IN

25 INVESTIGATIONS.— 


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1 (1) IN GENERAL.—Each investigation of harm 

2 to civilians resulting from a United States military 

3 operation shall, to the extent practicable, include— 

4 (A) interviews (remotely if necessary) of ci5 vilian survivors and witnesses (after obtaining 

6 their informed consent), including first respond7 ers and local medical authorities, and witnesses 

8 that may have moved to other locations; and 

9 (B) a visit by appropriate members of the 

10 United States Armed Forces to each site at 

11 which civilian casualties were confirmed or rea12 sonably suspected in connection with such oper13 ation. 

14 (2) INTERVIEWS OR VISITS BY ALTERNATIVE

15 PERSONNEL.—If the Secretary of Defense deter16 mines that an interview described in subparagraph 

17 (A) of paragraph (1) or a visit described in subpara18 graph (B) of that paragraph is not practicable, the 

19 Secretary shall— 

20 (A) memorialize, in writing, the justifica21 tion for such determination; 

22 (B) make every reasonable effort to obtain, 

23 as the case may be— 

24 (i) such an interview; or 


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1 (ii) a visit by appropriate military or 

2 civilian personnel of a partner or coalition 

3 military force, or by personnel of the na4 tional government concerned, or a local 

5 government, capable of making such a visit 

6 in connection with the investigation con7 cerned; and 

8 (C) memorialize, in writing— 

9 (i) the results of any interview or visit 

10 under subparagraph (B); or 

11 (ii) if no interview or visit could be 

12 obtained under that subparagraph, the 

13 gaps in evidence in the investigation con14 cerned as a result of the lack of such an 

15 interview or visit, as the case may be. 

16 (d) CONSIDERATION OF CIVIL SOCIETY INFORMA17 TION.—Each investigation of harm to civilians resulting 

18 from a United States military operation shall— 

19 (1) to the extent practicable, obtain and incor20 porate open-source information and civil society doc21 umentation regarding the possible incident of harm 

22 to civilians; 

23 (2) consider all sources of relevant and credible 

24 reporting, including information from public reports 

25 and nongovernmental sources; and 


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1 (3) include a reporting mechanism for the re2 ceipt and processing of information received under 

3 paragraphs (1) and (2) that is relevant to the inves4 tigation, including online portals. 

5 SEC. 4. COORDINATION BETWEEN GEOGRAPHIC COMBAT6 ANT COMMANDS AND SPECIAL OPERATIONS 

7 COMMAND AND THE DEPARTMENT OF STATE. 

8 (a) IN GENERAL.—Not later than 180 days after the 

9 date of the enactment of this Act, the Secretary of Defense 

10 shall direct each commander of a geographic combatant 

11 command and the Commander of the United States Spe12 cial Operations Command to coordinate with the Depart13 ment of State to establish and maintain an uninterrupted 

14 line of communication between such commands and the 

15 Chief of Mission (or the Chief’s designee) in any country 

16 in which any such command is conducting military oper17 ations in order to assist in the response to reports of harm 

18 to civilians resulting from such military operations. 

19 (b) PRIMARY OBJECTIVE.—The primary objective of 

20 the line of communication under this section shall be to 

21 serve as a channel for fielding and coordinating reports 

22 of harm to civilians resulting from United States military 

23 operations undertaken by the command concerned in the 

24 country or operation concerned. 


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1 SEC. 5. DATABASE ON REPORTS ON ASSESSMENTS AND IN2 VESTIGATIONS. 

3 (a) DATABASE REQUIRED.—Not later than one year 

4 after the date of the enactment of this Act, the Secretary 

5 of Defense shall establish and maintain within the Depart6 ment of Defense a database that preserves and organizes 

7 reports of the Department on assessments and investiga8 tions of harm to civilians resulting from United States 

9 military operations (including reports under section 1057 

10 of the National Defense Authorization Act for Fiscal Year 

11 2018), and the status and results of such assessments and 

12 investigations. 

13 (b) SEARCHABILITY.—The database required by sub14 section (a) shall be searchable by personnel across the De15 partment. 

16 (c) AVAILABILITY TO PUBLIC.—The public shall have 

17 access to, and be able to search, the database required 

18 by subsection (a) through an internet website of the De19 partment that is available to the public. For purposes of 

20 such access, appropriate information in the database may 

21 be maintained in a classified annex in the interests of the 

22 national security of the United States, and access to such 

23 annex appropriately limited. 

24 (d) UPDATE.—The database required by subsection 

25 (a) shall be updated not less frequently than once every 

26 30 days. 


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1 (e) PAST REPORTS ON CIVILIAN HARM.—The data2 base required by subsection (a) shall include, to the extent 

3 practicable, any Department of Defense reports already 

4 conducted on assessments and investigations of harm to 

5 civilians resulting from United States military operations 

6 between January 1, 2001, and the date of the enactment 

7 of this Act, as well as any reports conducted retroactively. 

8 SEC. 6. RESOURCES TO IMPLEMENT DEPARTMENT OF DE9 FENSE POLICY ON CIVILIAN HARM IN CON10 NECTION WITH UNITED STATES MILITARY 

11 OPERATIONS. 

12 (a) PURPOSE.—The purpose of this section is to fa13 cilitate fulfillment of the requirements in section 936 of 

14 the John S. McCain National Defense Authorization Act 

15 for Fiscal Year 2019 (Public Law 115–232; 10 U.S.C. 

16 134 note). 

17 (b) PERSONNEL.—Not later than 180 days after the 

18 date of the enactment of this Act, the Secretary of Defense 

19 shall do the following: 

20 (1) Add to, and assign within, each of the 

21 United States Central Command, the United States 

22 Africa Command, the United States Special Oper23 ations Command, the United States European Com24 mand, the United States Southern Command, the 

25 United States Indo-Pacific Command, and the 


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1 United States Northern Command not fewer than 

2 two personnel who shall have primary responsibility 

3 for the following in connection with military oper4 ations undertaken by such command: 

5 (A) Providing guidance and oversight re6 lating to prevention of and response to harm to 

7 civilians, promotion of observance of human 

8 rights, and the protection of civilians and civil9 ian infrastructure, including ensuring imple10 mentation of the policy of the Department of 

11 Defense on harm to civilians resulting from 

12 United States military operations. 

13 (B) Overseeing civilian harm prevention, 

14 mitigation, and response functions on behalf of 

15 the commander of such command. 

16 (C) Receiving reports of harm to civilians 

17 and conducting assessments and investigations 

18 relating to such harm. 

19 (D) Analyzing incidents and trends with 

20 respect to harm to civilians, identifying lessons 

21 learned, and ensuring that lessons learned are 

22 incorporated into updated command guidance 

23 and practices. 

24 (E) Offering condolences and amends for 

25 harm to civilians, including ex gratia payments. 


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1 (F) Ensuring the integration of activities 

2 relating to civilian harm prevention, mitigation, 

3 and response, the protection of civilians, and 

4 promotion of observance of human rights in se5 curity cooperation activities. 

6 (G) Working with the Center of Excellence 

7 established under section 7. 

8 (H) Consulting with non-governmental or9 ganizations on civilian harm and human rights 

10 matters. 

11 (2) Add to, and assign within, the Office of the 

12 Under Secretary of Defense for Policy not fewer 

13 than two personnel who shall have primary responsi14 bility for implementing and overseeing implementa15 tion by the components of the Department of De16 fense of Department policy on harm to civilians re17 sulting from United States military operations. 

18 (3) Add to, and assign within, the Joint Staff 

19 not fewer than two personnel who shall have primary 

20 responsibility for the following: 

21 (A) Overseeing implementation by the com22 ponents of the Department of Defense of De23 partment policy on harm to civilians resulting 

24 from United States military operations. 


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1 (B) Developing and sharing in the imple2 mentation of such policy. 

3 (C) Communicating operational guidance 

4 on such policy. 

5 (c) TRAINING, SOFTWARE, AND OTHER REQUIRE6 MENTS.— 

7 (1) IN GENERAL.—In each of fiscal years 2023 

8 through 2025, the Secretary of Defense and each 

9 Secretary of a military department may obligate and 

10 expend, from amounts specified in paragraph (2), 

11 not more than $5,000,000 for the following: 

12 (A) Training related to civilian harm pre13 vention, mitigation, and response. 

14 (B) Information technology equipment, 

15 support and maintenance, and data storage, in 

16 order to implement— 

17 (i) the policy of the Department relat18 ing to harms to civilians resulting from 

19 United States military operations as re20 quired by section 936 of the John S. 

21 McCain National Defense Authorization 

22 Act for Fiscal Year 2019; and 

23 (ii) the database required by section 

24 5. 


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1 (2) FUNDS.—The funds for a fiscal year speci2 fied in this subparagraph are funds as follows: 

3 (A) In the case of the Secretary of De4 fense, amounts authorized to be appropriated 

5 for such fiscal year for operation and mainte6 nance, Defense-wide. 

7 (B) In the case of a Secretary of a military 

8 department, amounts authorized to be appro9 priated for such fiscal year for operation and 

10 maintenance for the components of the Armed 

11 Forces under the jurisdiction of such Secretary. 

12 SEC. 7. DEPARTMENT OF DEFENSE CENTER OF EXCEL13 LENCE FOR THE PROTECTION OF CIVILIANS. 

14 (a) IN GENERAL.—Chapter 4 of title 10, United 

15 States Code, is amended by adding at the end the fol16 lowing new section: 

17 ‘‘§ 148 Center of Excellence for the Protection of Ci18 vilians 

19 ‘‘(a) CENTER OF EXCELLENCE FOR THE PROTEC20 TION OF CIVILIANS.—There is within the Office of the 

21 Secretary of Defense a Center of Excellence for the Pro22 tection of Civilians (in this section referred to as the ‘Cen23 ter’). 


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1 ‘‘(b) FUNCTIONS AND COMPOSITION.—The Center 

2 shall serve as the primary organization in the Department 

3 of Defense responsible for— 

4 ‘‘(1) advising the Secretary of Defense and sen5 ior United States Government officials on efforts to 

6 prevent, mitigate, and respond to harm to civilians 

7 during United States military operations; 

8 ‘‘(2) ensuring the full implementation of the 

9 Department of Defense Instruction on Responding 

10 to Civilian Harm in Military Operations and subse11 quent guidance pertaining to civilian harm preven12 tion, mitigation, and response; 

13 ‘‘(3) conducting regular audits of civilian harm 

14 prevention, mitigation, and response policies and 

15 practices across the Department of Defense, includ16 ing at the combatant commands, including align17 ment of Department policies, practices, and other 

18 guidance with the law of armed conflict and other 

19 applicable international law; 

20 ‘‘(4) convening on a quarterly basis an inter21 agency task force to assess progress on civilian harm 

22 prevention, mitigation, and response, which shall in23 clude the Department of Defense, the Department of 

24 State, the Central Intelligence Agency, the United 

25 States Agency for International Development, and 


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1 such other agencies as the President considers ap2 propriate; 

3 ‘‘(5) tracking data relating to harm to civilians, 

4 analyzing such data over time for trends, and ensur5 ing the public release of such data on a regular 

6 basis; 

7 ‘‘(6) conducting post-strike assessments and in8 vestigations of suspected harm to civilians, including 

9 wherever possible interviews with victims and sur10 vivors, and in consultation with civil society organi11 zations and relevant United States Government 

12 agencies, and publicly releasing all such assessments 

13 and investigations with minimal redactions only for 

14 legitimately classified information; 

15 ‘‘(7) based on post-strike assessments, inves16 tigations, and trend analysis, recommending indi17 vidual amends and remedies for harm to civilians, 

18 recommending accountability measures in cases of 

19 wrongdoing, and suggesting changes to policy and 

20 practice based on findings; 

21 ‘‘(8) issuing amends for harm to civilians 

22 caused by the use of force by the United States 

23 Armed Forces, a coalition that includes the United 

24 States, a military organization supporting the 

25 United States, or a military organization supporting 


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1 the United States or such coalition, including formal 

2 apologies, ex gratia payments, and other assistance, 

3 in consultation with civilian victims, survivors, and 

4 their representatives; 

5 ‘‘(9) engaging with civil society no less than bi6 annually to ensure the most accurate and com7 prehensive information about harm to civilians is 

8 known to the United States Government and that 

9 United States Government efforts to improve civilian 

10 harm policies and practice are informed by the expe11 riences and needs of civilians affected by military op12 erations of the United States and partner countries; 

13 ‘‘(10) conducting assessments and investiga14 tions and reporting on instances of civilian harm 

15 that have occurred in the past; and 

16 ‘‘(11) ensuring that lessons learned from civil17 ian harm assessments, investigations, and other 

18 sources are reflected in updated doctrine, policies, 

19 procedures, and practices, and monitoring and as20 sessing implementation of lessons learned. 

21 ‘‘(c) DIRECTOR.—(1) There is a Director of the Cen22 ter, who shall be the head of the Center, and who shall 

23 be appointed by the Secretary of Defense. The Director 

24 of the Center shall be a civilian with significant experience 

25 and expertise relating to the protection of civilians. 


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1 ‘‘(2) The Director of the Center shall— 

2 ‘‘(A) report directly to the Secretary of De3 fense; and 

4 ‘‘(B) carry out the functions of the Center 

5 under subsection (b). 

6 ‘‘(d) STAFF.—The Center shall have sufficient staff 

7 to carry out the functions of the Center under subsection 

8 (b), including— 

9 ‘‘(1) a general officer (as defined in section 

10 101(b) of this title) with significant experience and 

11 expertise on the protection of civilians; and 

12 ‘‘(2) analysts and investigators detailed from 

13 the Department of State, the United States Agency 

14 for International Development, the Central Intel15 ligence Agency, and civil society organizations. 

16 ‘‘(e) ACCESS TO INTELLIGENCE.—The Center shall 

17 be provided with access, in accordance with applicable pro18 visions of law, to all intelligence and other reporting pos19 sessed or acquired by the United States Government per20 taining to harm to civilians resulting from United States 

21 military operations. 

22 ‘‘(f) ANNUAL REPORTS.—(1) At the direction of the 

23 Secretary of Defense, the Director of the Center shall sub24 mit to the congressional defense committees, the Com25 mittee on Foreign Relations of the Senate, and the ComVerDate Sep 11 2014 04:28 Apr 29, 2022 Jkt 029200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S4108.IS S4108

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1 mittee on Foreign Affairs of the House of Representatives 

2 an annual report on the activities of the Center. The Di3 rector shall also publish an unclassified form of the report 

4 on an internet website of the Department available to the 

5 public concurrently with its submission to Congress. 

6 ‘‘(2) Each report required by paragraph (1) shall in7 clude a discussion of— 

8 ‘‘(A) the activities of the Center and its 

9 progress toward implementing the functions of the 

10 Center under subsection (b); 

11 ‘‘(B) the assessment of the Director of United 

12 States Government policies and practices for civilian 

13 harm prevention, mitigation, and response; 

14 ‘‘(C) the recommendations of the Director for 

15 improved civilian harm prevention, mitigation, and 

16 response policies and practices; and 

17 ‘‘(D) the recommendations of the Director for 

18 any legislative or other actions necessary to improve 

19 the ability of the Center to carry out its functions.’’. 

20 ‘‘(g) GUIDANCE.—Not later than 120 days after the 

21 date of the enactment of this section, the Director of the 

22 Center shall, at the direction of the Secretary of Defense 

23 and in consultation with civilian victims and survivors, de24 velop further guidance on the provision of amends or conVerDate Sep 11 2014 04:28 Apr 29, 2022 Jkt 029200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\S4108.IS S4108

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1 dolences for harm to civilians, including monetary and 

2 non-monetary mechanisms. 

3 ‘‘(h) FUNDS.—For each of fiscal years 2023 through 

4 2025, there is authorized to be appropriated for the De5 partment of Defense $25,000,000 for the Director to 

6 carry out the functions specified in subsections (a) 

7 through (g).’’. 

8 (b) CLERICAL AMENDMENT.—The table of sections 

9 at the beginning of such chapter is amended by inserting 

10 after the item relating to section 147 the following new 

11 item: 

‘‘148. Center of Excellence for the Protection of Civilians.’’. 

12 SEC. 8. REPORT ON DEPARTMENT OF DEFENSE PRACTICES 

13 REGARDING DISTINCTION BETWEEN COM14 BATANTS AND CIVILIANS IN UNITED STATES 

15 MILITARY OPERATIONS. 

16 (a) REPORT.—The Secretary of Defense shall seek to 

17 enter into an agreement with a federally funded research 

18 and development center to conduct an independent report 

19 on Department of Defense practices regarding distin20 guishing between combatants and civilians in United 

21 States military operations. 

22 (b) ELEMENTS.—The report required under sub23 section (a) shall include the following matters: 

24 (1) A description of how the Department of De25 fense and individual members of the Armed Forces 


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1 have differentiated between combatants and civilians 

2 in both ground and air operations since 2001, in3 cluding in Afghanistan, Iraq, Syria, Somalia, Libya, 

4 and Yemen, including— 

5 (A) relevant policy and legal standards and 

6 how these standards were implemented in prac7 tice; 

8 (B) target engagement criteria; and 

9 (C) whether military-aged males were pre10 sumptively targetable. 

11 (2) A description of how the Department of De12 fense has differentiated between combatants and ci13 vilians when assessing allegations of civilian casual14 ties since 2001, including in Afghanistan, Iraq, 

15 Syria, Somalia, Libya, and Yemen, including— 

16 (A) relevant policy and legal standards and 

17 the factual indicators these standards were ap18 plied to in assessing claims of civilian casual19 ties; and 

20 (B) any other matters the Secretary of De21 fense determines appropriate. 

22 (c) SUBMISSION OF REPORT.— 

23 (1) IN GENERAL.—Not later than July 1, 2023, 

24 the Secretary of Defense shall submit to the con25 gressional defense committees a report setting forth 


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1 an unaltered copy of the assessment under this sec2 tion, together with the views of the Secretary on the 

3 assessment. 

4 (2) FORM OF REPORT.—The report under para5 graph (1) shall be submitted in unclassified form, 

6 but may contain a classified annex. 

7 SEC. 9. DEFINITIONS. 

8 In this Act: 

9 (1) CIVILIAN HARM.—The term ‘‘harm’’, with 

10 respect to civilians, means— 

11 (A) injury to, death of, or destruction of 

12 property of civilians; and 

13 (B) any other harm to civilians caused as 

14 a result of the use of force. 

15 (2) CONGRESSIONAL DEFENSE COMMITTEES.— 

16 The term ‘‘congressional defense committees’’ has 

17 the meaning given the term in section 101(a)(16) of 

18 title 10, United States Code. 

19 (3) UNITED STATES MILITARY OPERATIONS.— 

20 The term ‘‘United States military operations’’ in21 cludes any mission, strike, engagement, raid, or inci22 dent involving United States Armed Forces. 

Æ 


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