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[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4108 Introduced in Senate (IS)]

<DOC>

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.

    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 ``Protection of Civilians in Military 
Operations Act''.

SEC. 2. SENSE OF CONGRESS.

    It is the sense of Congress--
            (1) to commend the Department of Defense for its renewed 
        commitment to preventing and addressing harm to civilians 
        resulting from United States military operations and work to 
        develop an action plan to implement meaningful changes to 
        further prevent and address such harm;
            (2) to agree with the Department that harms to civilians is 
        a tragic and unavoidable part of war, and to recognize that--
                    (A) the Department endeavors to conduct all 
                military operations in compliance with the 
                international law of armed conflict and the laws of the 
                United States, including distinction, proportionality, 
                and the requirement to take feasible precautions in 
                planning and conducting operations to reduce the risk 
                of harm to civilians and other protected persons and 
                objects;
                    (B) the protection of civilians and other protected 
                persons and objects, in addition to a legal obligation 
                and a strategic interest, is a moral and ethical 
                imperative;
                    (C) despite those commitments, military operations 
                of the United States and partner countries during the 
                two decades before the date of the enactment of this 
                Act have resulted in civilian deaths and injuries, and 
                damage to or destruction of civilian objects including 
                critical infrastructure, in at least Afghanistan, Iraq, 
                Pakistan, Somalia, Syria, and Yemen; and
                    (D) more must be done to improve the protection of 
                civilians;
            (3) that the Department has submitted to Congress four 
        successive annual reports on civilian casualties resulting from 
        United States military operations for calendar years 2017, 
        2018, 2019, and 2020, and has updated reports as appropriate; 
        and
            (4) to recognize the efforts of the Department, both in 
        policy and in practice, to reduce the harm to civilians and 
        other protected persons and objects resulting from United 
        States military operations, and to encourage the Department to 
        make additional progress in--
                    (A) developing at all combatant commands personnel 
                and offices responsible for advising the commanders of 
                such commands, and integrating into command strategy, 
                the promotion of observance of human rights and the 
                protection of civilians and other protected persons and 
                objects;
                    (B) finalizing and implementing the policy of the 
                Department relating to civilian casualties resulting 
                from United States military operations, as required by 
                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);
                    (C) finalizing and implementing Department-wide 
                regulations to implement section 1213 of the National 
                Defense Authorization for Fiscal Year 2020 (Public Law 
                116-92; 10 U.S.C. 2731 note), for ex gratia payments 
                for damage, personal injury, or death that is incident 
                to the use of force by the United States Armed Forces, 
                a coalition that includes the United States, a military 
                organization supporting the United States, or a 
                military organization supporting the United States or 
                such coalition; and
                    (D) professionalizing foreign partner forces to 
                minimize, mitigate, and respond to harm to civilians, 
                including in connection with arms transfers, train and 
                equip programs, advise, assist, accompany, and enable 
                missions, and fully combined and coalition operations.

SEC. 3. INTEGRITY OF CIVILIAN HARM INVESTIGATIONS.

    (a) Investigations by Officers Outside Unit or Chain of Command.--A 
commander in the Armed Forces conducting an administrative 
investigation, commander directed inquiry, or equivalent investigation 
of harms to civilians resulting from a United States military operation 
that was undertaken by one or more units under the command of the 
commander shall--
            (1) to the extent practicable, select as an officer to 
        conduct such investigation an officer in the Armed Forces 
        outside of such units or chain of command; or
            (2) if selecting an officer outside of such units or chain 
        of command is not practicable, include an explanation in the 
        investigative report and submit to the Center of Excellence 
        described in section 7 a report describing the reasons such a 
        selection was not practicable.
    (b) Separation of Investigative Personnel From Personnel Involved 
in Operations.--The military or civilian personnel of the Armed Forces 
who conduct an investigation on civilian casualties resulting from a 
United States military operation shall, to the extent practicable, be 
operationally separate from members of the Armed Forces who were 
directly involved in such operation.
    (c) Witness Interviews and Site Visitations in Investigations.--
            (1) In general.--Each investigation of harm to civilians 
        resulting from a United States military operation shall, to the 
        extent practicable, include--
                    (A) interviews (remotely if necessary) of civilian 
                survivors and witnesses (after obtaining their informed 
                consent), including first responders and local medical 
                authorities, and witnesses that may have moved to other 
                locations; and
                    (B) a visit by appropriate members of the United 
                States Armed Forces to each site at which civilian 
                casualties were confirmed or reasonably suspected in 
                connection with such operation.
            (2) Interviews or visits by alternative personnel.--If the 
        Secretary of Defense determines that an interview described in 
        subparagraph (A) of paragraph (1) or a visit described in 
        subparagraph (B) of that paragraph is not practicable, the 
        Secretary shall--
                    (A) memorialize, in writing, the justification for 
                such determination;
                    (B) make every reasonable effort to obtain, as the 
                case may be--
                            (i) such an interview; or
                            (ii) a visit by appropriate military or 
                        civilian personnel of a partner or coalition 
                        military force, or by personnel of the national 
                        government concerned, or a local government, 
                        capable of making such a visit in connection 
                        with the investigation concerned; and
                    (C) memorialize, in writing--
                            (i) the results of any interview or visit 
                        under subparagraph (B); or
                            (ii) if no interview or visit could be 
                        obtained under that subparagraph, the gaps in 
                        evidence in the investigation concerned as a 
                        result of the lack of such an interview or 
                        visit, as the case may be.
    (d) Consideration of Civil Society Information.--Each investigation 
of harm to civilians resulting from a United States military operation 
shall--
            (1) to the extent practicable, obtain and incorporate open-
        source information and civil society documentation regarding 
        the possible incident of harm to civilians;
            (2) consider all sources of relevant and credible 
        reporting, including information from public reports and 
        nongovernmental sources; and
            (3) include a reporting mechanism for the receipt and 
        processing of information received under paragraphs (1) and (2) 
        that is relevant to the investigation, including online 
        portals.

SEC. 4. COORDINATION BETWEEN GEOGRAPHIC COMBATANT COMMANDS AND SPECIAL 
              OPERATIONS COMMAND AND THE DEPARTMENT OF STATE.

    (a) In General.--Not later than 180 days after the date of the 
enactment of this Act, the Secretary of Defense shall direct each 
commander of a geographic combatant command and the Commander of the 
United States Special Operations Command to coordinate with the 
Department of State to establish and maintain an uninterrupted line of 
communication between such commands and the Chief of Mission (or the 
Chief's designee) in any country in which any such command is 
conducting military operations in order to assist in the response to 
reports of harm to civilians resulting from such military operations.
    (b) Primary Objective.--The primary objective of the line of 
communication under this section shall be to serve as a channel for 
fielding and coordinating reports of harm to civilians resulting from 
United States military operations undertaken by the command concerned 
in the country or operation concerned.

SEC. 5. DATABASE ON REPORTS ON ASSESSMENTS AND INVESTIGATIONS.

    (a) Database Required.--Not later than one year after the date of 
the enactment of this Act, the Secretary of Defense shall establish and 
maintain within the Department of Defense a database that preserves and 
organizes reports of the Department on assessments and investigations 
of harm to civilians resulting from United States military operations 
(including reports under section 1057 of the National Defense 
Authorization Act for Fiscal Year 2018), and the status and results of 
such assessments and investigations.
    (b) Searchability.--The database required by subsection (a) shall 
be searchable by personnel across the Department.
    (c) Availability to Public.--The public shall have access to, and 
be able to search, the database required by subsection (a) through an 
internet website of the Department that is available to the public. For 
purposes of such access, appropriate information in the database may be 
maintained in a classified annex in the interests of the national 
security of the United States, and access to such annex appropriately 
limited.
    (d) Update.--The database required by subsection (a) shall be 
updated not less frequently than once every 30 days.
    (e) Past Reports on Civilian Harm.--The database required by 
subsection (a) shall include, to the extent practicable, any Department 
of Defense reports already conducted on assessments and investigations 
of harm to civilians resulting from United States military operations 
between January 1, 2001, and the date of the enactment of this Act, as 
well as any reports conducted retroactively.

SEC. 6. RESOURCES TO IMPLEMENT DEPARTMENT OF DEFENSE POLICY ON CIVILIAN 
              HARM IN CONNECTION WITH UNITED STATES MILITARY 
              OPERATIONS.

    (a) Purpose.--The purpose of this section is to facilitate 
fulfillment of the requirements in 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).
    (b) Personnel.--Not later than 180 days after the date of the 
enactment of this Act, the Secretary of Defense shall do the following:
            (1) Add to, and assign within, each of the United States 
        Central Command, the United States Africa Command, the United 
        States Special Operations Command, the United States European 
        Command, the United States Southern Command, the United States 
        Indo-Pacific Command, and the United States Northern Command 
        not fewer than two personnel who shall have primary 
        responsibility for the following in connection with military 
        operations undertaken by such command:
                    (A) Providing guidance and oversight relating to 
                prevention of and response to harm to civilians, 
                promotion of observance of human rights, and the 
                protection of civilians and civilian infrastructure, 
                including ensuring implementation of the policy of the 
                Department of Defense on harm to civilians resulting 
                from United States military operations.
                    (B) Overseeing civilian harm prevention, 
                mitigation, and response functions on behalf of the 
                commander of such command.
                    (C) Receiving reports of harm to civilians and 
                conducting assessments and investigations relating to 
                such harm.
                    (D) Analyzing incidents and trends with respect to 
                harm to civilians, identifying lessons learned, and 
                ensuring that lessons learned are incorporated into 
                updated command guidance and practices.
                    (E) Offering condolences and amends for harm to 
                civilians, including ex gratia payments.
                    (F) Ensuring the integration of activities relating 
                to civilian harm prevention, mitigation, and response, 
                the protection of civilians, and promotion of 
                observance of human rights in security cooperation 
                activities.
                    (G) Working with the Center of Excellence 
                established under section 7.
                    (H) Consulting with non-governmental organizations 
                on civilian harm and human rights matters.
            (2) Add to, and assign within, the Office of the Under 
        Secretary of Defense for Policy not fewer than two personnel 
        who shall have primary responsibility for implementing and 
        overseeing implementation by the components of the Department 
        of Defense of Department policy on harm to civilians resulting 
        from United States military operations.
            (3) Add to, and assign within, the Joint Staff not fewer 
        than two personnel who shall have primary responsibility for 
        the following:
                    (A) Overseeing implementation by the components of 
                the Department of Defense of Department policy on harm 
                to civilians resulting from United States military 
                operations.
                    (B) Developing and sharing in the implementation of 
                such policy.
                    (C) Communicating operational guidance on such 
                policy.
    (c) Training, Software, and Other Requirements.--
            (1) In general.--In each of fiscal years 2023 through 2025, 
        the Secretary of Defense and each Secretary of a military 
        department may obligate and expend, from amounts specified in 
        paragraph (2), not more than $5,000,000 for the following:
                    (A) Training related to civilian harm prevention, 
                mitigation, and response.
                    (B) Information technology equipment, support and 
                maintenance, and data storage, in order to implement--
                            (i) the policy of the Department relating 
                        to harms to civilians resulting from United 
                        States military operations as required by 
                        section 936 of the John S. McCain National 
                        Defense Authorization Act for Fiscal Year 2019; 
                        and
                            (ii) the database required by section 5.
            (2) Funds.--The funds for a fiscal year specified in this 
        subparagraph are funds as follows:
                    (A) In the case of the Secretary of Defense, 
                amounts authorized to be appropriated for such fiscal 
                year for operation and maintenance, Defense-wide.
                    (B) In the case of a Secretary of a military 
                department, amounts authorized to be appropriated for 
                such fiscal year for operation and maintenance for the 
                components of the Armed Forces under the jurisdiction 
                of such Secretary.

SEC. 7. DEPARTMENT OF DEFENSE CENTER OF EXCELLENCE FOR THE PROTECTION 
              OF CIVILIANS.

    (a) In General.--Chapter 4 of title 10, United States Code, is 
amended by adding at the end the following new section:
``Sec. 148 Center of Excellence for the Protection of Civilians
    ``(a) Center of Excellence for the Protection of Civilians.--There 
is within the Office of the Secretary of Defense a Center of Excellence 
for the Protection of Civilians (in this section referred to as the 
`Center').
    ``(b) Functions and Composition.--The Center shall serve as the 
primary organization in the Department of Defense responsible for--
            ``(1) advising the Secretary of Defense and senior United 
        States Government officials on efforts to prevent, mitigate, 
        and respond to harm to civilians during United States military 
        operations;
            ``(2) ensuring the full implementation of the Department of 
        Defense Instruction on Responding to Civilian Harm in Military 
        Operations and subsequent guidance pertaining to civilian harm 
        prevention, mitigation, and response;
            ``(3) conducting regular audits of civilian harm 
        prevention, mitigation, and response policies and practices 
        across the Department of Defense, including at the combatant 
        commands, including alignment of Department policies, 
        practices, and other guidance with the law of armed conflict 
        and other applicable international law;
            ``(4) convening on a quarterly basis an interagency task 
        force to assess progress on civilian harm prevention, 
        mitigation, and response, which shall include the Department of 
        Defense, the Department of State, the Central Intelligence 
        Agency, the United States Agency for International Development, 
        and such other agencies as the President considers appropriate;
            ``(5) tracking data relating to harm to civilians, 
        analyzing such data over time for trends, and ensuring the 
        public release of such data on a regular basis;
            ``(6) conducting post-strike assessments and investigations 
        of suspected harm to civilians, including wherever possible 
        interviews with victims and survivors, and in consultation with 
        civil society organizations and relevant United States 
        Government agencies, and publicly releasing all such 
        assessments and investigations with minimal redactions only for 
        legitimately classified information;
            ``(7) based on post-strike assessments, investigations, and 
        trend analysis, recommending individual amends and remedies for 
        harm to civilians, recommending accountability measures in 
        cases of wrongdoing, and suggesting changes to policy and 
        practice based on findings;
            ``(8) issuing amends for harm to civilians caused by the 
        use of force by the United States Armed Forces, a coalition 
        that includes the United States, a military organization 
        supporting the United States, or a military organization 
        supporting the United States or such coalition, including 
        formal apologies, ex gratia payments, and other assistance, in 
        consultation with civilian victims, survivors, and their 
        representatives;
            ``(9) engaging with civil society no less than biannually 
        to ensure the most accurate and comprehensive information about 
        harm to civilians is known to the United States Government and 
        that United States Government efforts to improve civilian harm 
        policies and practice are informed by the experiences and needs 
        of civilians affected by military operations of the United 
        States and partner countries;
            ``(10) conducting assessments and investigations and 
        reporting on instances of civilian harm that have occurred in 
        the past; and
            ``(11) ensuring that lessons learned from civilian harm 
        assessments, investigations, and other sources are reflected in 
        updated doctrine, policies, procedures, and practices, and 
        monitoring and assessing implementation of lessons learned.
    ``(c) Director.--(1) There is a Director of the Center, who shall 
be the head of the Center, and who shall be appointed by the Secretary 
of Defense. The Director of the Center shall be a civilian with 
significant experience and expertise relating to the protection of 
civilians.
    ``(2) The Director of the Center shall--
            ``(A) report directly to the Secretary of Defense; and
            ``(B) carry out the functions of the Center under 
        subsection (b).
    ``(d) Staff.--The Center shall have sufficient staff to carry out 
the functions of the Center under subsection (b), including--
            ``(1) a general officer (as defined in section 101(b) of 
        this title) with significant experience and expertise on the 
        protection of civilians; and
            ``(2) analysts and investigators detailed from the 
        Department of State, the United States Agency for International 
        Development, the Central Intelligence Agency, and civil society 
        organizations.
    ``(e) Access to Intelligence.--The Center shall be provided with 
access, in accordance with applicable provisions of law, to all 
intelligence and other reporting possessed or acquired by the United 
States Government pertaining to harm to civilians resulting from United 
States military operations.
    ``(f) Annual Reports.--(1) At the direction of the Secretary of 
Defense, the Director of the Center shall submit to the congressional 
defense committees, the Committee on Foreign Relations of the Senate, 
and the Committee on Foreign Affairs of the House of Representatives an 
annual report on the activities of the Center. The Director shall also 
publish an unclassified form of the report on an internet website of 
the Department available to the public concurrently with its submission 
to Congress.
    ``(2) Each report required by paragraph (1) shall include a 
discussion of--
            ``(A) the activities of the Center and its progress toward 
        implementing the functions of the Center under subsection (b);
            ``(B) the assessment of the Director of United States 
        Government policies and practices for civilian harm prevention, 
        mitigation, and response;
            ``(C) the recommendations of the Director for improved 
        civilian harm prevention, mitigation, and response policies and 
        practices; and
            ``(D) the recommendations of the Director for any 
        legislative or other actions necessary to improve the ability 
        of the Center to carry out its functions.''.
    ``(g) Guidance.--Not later than 120 days after the date of the 
enactment of this section, the Director of the Center shall, at the 
direction of the Secretary of Defense and in consultation with civilian 
victims and survivors, develop further guidance on the provision of 
amends or condolences for harm to civilians, including monetary and 
non-monetary mechanisms.
    ``(h) Funds.--For each of fiscal years 2023 through 2025, there is 
authorized to be appropriated for the Department of Defense $25,000,000 
for the Director to carry out the functions specified in subsections 
(a) through (g).''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
such chapter is amended by inserting after the item relating to section 
147 the following new item:

``148. Center of Excellence for the Protection of Civilians.''.

SEC. 8. REPORT ON DEPARTMENT OF DEFENSE PRACTICES REGARDING DISTINCTION 
              BETWEEN COMBATANTS AND CIVILIANS IN UNITED STATES 
              MILITARY OPERATIONS.

    (a) Report.--The Secretary of Defense shall seek to enter into an 
agreement with a federally funded research and development center to 
conduct an independent report on Department of Defense practices 
regarding distinguishing between combatants and civilians in United 
States military operations.
    (b) Elements.--The report required under subsection (a) shall 
include the following matters:
            (1) A description of how the Department of Defense and 
        individual members of the Armed Forces have differentiated 
        between combatants and civilians in both ground and air 
        operations since 2001, including in Afghanistan, Iraq, Syria, 
        Somalia, Libya, and Yemen, including--
                    (A) relevant policy and legal standards and how 
                these standards were implemented in practice;
                    (B) target engagement criteria; and
                    (C) whether military-aged males were presumptively 
                targetable.
            (2) A description of how the Department of Defense has 
        differentiated between combatants and civilians when assessing 
        allegations of civilian casualties since 2001, including in 
        Afghanistan, Iraq, Syria, Somalia, Libya, and Yemen, 
        including--
                    (A) relevant policy and legal standards and the 
                factual indicators these standards were applied to in 
                assessing claims of civilian casualties; and
                    (B) any other matters the Secretary of Defense 
                determines appropriate.
    (c) Submission of Report.--
            (1) In general.--Not later than July 1, 2023, 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.
            (2) Form of report.--The report under paragraph (1) shall 
        be submitted in unclassified form, but may contain a classified 
        annex.

SEC. 9. DEFINITIONS.

    In this Act:
            (1) Civilian harm.--The term ``harm'', with respect to 
        civilians, means--
                    (A) injury to, death of, or destruction of property 
                of civilians; and
                    (B) any other harm to civilians caused as a result 
                of the use of force.
            (2) Congressional defense committees.--The term 
        ``congressional defense committees'' has the meaning given the 
        term in section 101(a)(16) of title 10, United States Code.
            (3) United states military operations.--The term ``United 
        States military operations'' includes any mission, strike, 
        engagement, raid, or incident involving United States Armed 
        Forces.
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