[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3852 Introduced in Senate (IS)]

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116th CONGRESS
  2d Session
                                S. 3852

   To enhance protections of civilians during United States military 
                  operations, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              June 1, 2020

  Ms. Warren 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 the measures 
        it has implemented and is currently implementing to prevent, 
        mitigate, track, investigate, learn from, respond to, and 
        report civilian casualties resulting from United States 
        military operations;
            (2) to agree with the Department that civilian casualties 
        are 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; and
                    (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;
            (3) that the Department has submitted to Congress three 
        successive annual reports on civilian casualties resulting from 
        United States military operations for calendar years 2017, 
        2018, and 2019, 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 (10 U.S.C. 134 
                note);
                    (C) finalizing Department-wide regulations to 
                implement section 1213 of the National Defense 
                Authorization for Fiscal Year 2020 (Public Law 116-92), 
                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 
                reduce civilian casualties, including in connection 
                with train and equip programs, advise, assist, 
                accompany, and enable missions, and fully combined and 
                coalition operations.

SEC. 3. MODIFICATION OF ANNUAL REPORT ON CIVILIAN CASUALTIES IN 
              CONNECTION WITH UNITED STATES MILITARY OPERATIONS.

    Section 1057 of the National Defense Authorization Act for Fiscal 
Year 2018 (10 U.S.C. 113 note), is amended--
            (1) in subsection (b)--
                    (A) by redesignating paragraphs (2) through (9) as 
                paragraphs (3) through (10), respectively;
                    (B) by inserting after paragraph (1) the following 
                new paragraph (2):
            ``(2) A list of each authorized advise, assist, accompany, 
        and enable mission during the year covered by such report 
        during which civilian casualties or human rights abuses by 
        partner forces were observed or later reported.''; and
                    (C) in subparagraph (A) of paragraph (4), as 
                redesignated by subparagraph (A) of this paragraph, by 
                inserting before the semicolon the following: ``, and 
                any measures in place for preventing, mitigating, and 
                responding to the death or injury to civilians that 
                occurs during advise, assist, accompany, and enable 
                missions conducted by United States military 
                personnel'';
            (2) in subsection (d)--
                    (A) in the second sentence, by striking ``, and 
                shall be made available'' and all that follows and 
                inserting a period; and
                    (B) by adding at the end the following new 
                sentence: ``The unclassified form of each report shall 
                be published on an internet website of the Department 
                available to the public concurrently with its 
                submission to Congress.'';
            (3) by redesignating subsection (e) as subsection (f): and
            (4) by inserting after subsection (d) the following new 
        subsection (e):
    ``(e) Human Rights Abuses Defined.--In this section the term `human 
rights abuses' has the meaning given the term `gross violations of 
internationally recognized human rights' in section 502B(d)(1) of the 
Foreign Assistance Act of 1961 (22 U.S.C. 2304(d)(1)).''.

SEC. 4. INTEGRITY OF CIVILIAN CASUALTY 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 
on civilian casualties resulting from a United States military 
operation that was undertaken by one or more units under the command of 
the commander shall, 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.
    (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) Site Visitations in Investigations.--
            (1) In general.--Each investigation on civilian casualties 
        resulting from a United States military operation shall, to the 
        extent practicable, include a visit (including the interview of 
        civilian survivors and witnesses after their informed consent) 
        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) Visits by alternative personnel.--If the Secretary of 
        Defense determines that a visit by members of the United States 
        Armed Forces to a site as otherwise required by paragraph (1) 
        is not practicable, the Secretary shall--
                    (A) memorialize, in writing, the justification for 
                such determination;
                    (B) make every reasonable effort to obtain such 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 visit under 
                        subparagraph (B); or
                            (ii) if no visit could be obtained under 
                        that subparagraph, the gaps in evidence in the 
                        investigation concerned as a result of the lack 
                        of such a visit.

SEC. 5. COORDINATION BETWEEN GEOGRAPHIC COMBATANT COMMANDS 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 to coordinate with the 
Department of State to establish and maintain an uninterrupted line of 
communication between such command and the Chief of Mission (of the 
Chief's designee) in any country in which such command is conducting 
military operations in order to assist in the response to reports of 
civilian casualties 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 civilian casualties resulting from 
United States military operations undertaken by the command concerned 
in the country concerned.

SEC. 6. DATABASE ON REPORTS ON 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 investigations of civilian 
casualties resulting from United States military operations (including 
reports under section 1057 of the National Defense Authorization Act 
for Fiscal Year 2018, as amended by section 3 of this Act), and the 
results of such 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 each year.

SEC. 7. RESOURCES TO IMPLEMENT DEPARTMENT OF DEFENSE POLICY ON CIVILIAN 
              CASUALTIES 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 (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 civilian casualties, 
                promotion of observance of human rights, and the 
                protection of civilians and civilian infrastructure.
                    (B) Overseeing civilian casualty response functions 
                on behalf of the commander of such command.
                    (C) Receiving reports of civilian casualties and 
                conduct of civilian casualty assessments.
                    (D) Analyzing civilian casualty incidents and 
                trends.
                    (E) Offering condolences for casualties, including 
                ex gratia payments.
                    (F) Ensuring the integration of activities relating 
                to civilian casualty mitigation, protection of 
                civilians, and promotion of observance of human rights 
                in security cooperation activities.
                    (G) Consulting with non-governmental organizations 
                on civilian casualty and human rights matters.
            (2) Add to, and assign within, the Office of the Under 
        Secretary 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 civilian casualties 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 
                civilian casualties 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 2021 through 2023, 
        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 casualty 
                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 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; 
                        and
                            (ii) the database required by section 6.
            (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. 8. UNITED STATES MILITARY OPERATIONS DEFINED.

    In this Act, the term ``United States military operations'' 
includes any mission, strike, engagement, raid, or incident involving 
United States Armed Forces.
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