Reference Guide: Tracking Protection of Civilians Through the NDAA

 The United States National Defense Authorization Act (NDAA) is legislation that provides annual authorization of appropriations for the Department of Defense (DoD) and defense-related activities at other federal agencies. In so doing, the NDAA also establishes, guides, and at times restrains defense policy. In recent years, the NDAA has contained numerous provisions on DoD protection of civilians policy, including requirements for greater transparency through reporting of civilian harm and related policies, mandating the creation of a comprehensive policy on civilian harm, authorization of ex gratia payments, and other provisions designed to improve congressional oversight over the use of force and the protection of civilians. This reference guide tracks those provisions and related analysis. For more information on the NDAA process more broadly, see this primer from the Congressional Research Service.

Amends

Civilian Casualties Reporting

Civilian Harm Policy

Use of Force

Security Partnerships

2004

Amends

FY05 NDAA Section 1201 created the Commanders’ Emergency Response Program (CERP) for Iraq and Afghanistan to “respond to urgent humanitarian relief and reconstruction requirements within [Commanders’] areas of responsibility by carrying out programs that will immediately assist” the people of these countries. These funds were primarily used for infrastructure repair and humanitarian aid projects, but also included condolence payments to individual civilians for incidents of death, injury, or property damage resulting from US operations.

2016

Amends

FY17 NDAA Section 1211 extended and modified the Commanders’ Emergency Response Program to include Syria in addition to Iraq and Afghanistan.

2017

Civilian Casualties Reporting

FY18 NDAA Section 1057 required the Secretary of Defense to submit to the congressional defense committees an annual report on civilian casualties caused as a result of US military operations during the preceding year.

Deadline: May 1 of every year

 

Read the 2017 report here.

Read our analysis of the report here.

Use of Force

FY18 NDAA Section 1264 required the executive branch to report on and give notice of changes made to the legal and policy frameworks for the United States use of military force and related national security operations

Deadline: 90 days after enactment and 30 days after any changes

2018

Amends

FY19 NDAA Section 1224 further expanded the Commanders’ Emergency Response Program to include Somalia, Libya, and Yemen.

Civilian Casualties Reporting

FY19 NDAA Section 1062 strengthened the annual civilian casualty report to require reporting on each strike or engagement that is reasonably suspected of resulting in civilian casualties and additional details on the incidents; disaggregation of civilian deaths and injuries; and a description of the DoD’s process for investigating reports of civilian casualties and making ex gratia payments. The provision also required similar updates to previous reports.

 

Read the 2018 report here.

Read our analysis of the report here.

Civilian Harm Policy

FY19 NDAA Section 936 required the designation of a senior civilian Department of Defense official to “develop, coordinate, and oversee compliance with the policy of the Department relating to civilian casualties resulting from United States military operations” and a report on the Department’s efforts towards such a policy.

 

Read the report here.

Read our analysis here.

2019

Amends

FY20 NDAA Section 1213 eliminated CERP’s authority to make condolence payments and replaced it with a separate authorization of $3 million per calendar year for ex gratia payments for damage, personal injury, or death caused by US forces, a coalition including the United States, or a military organization supporting the United States or a coalition involving the United States. The authority has no geographic limitations.

Read our analysis of DoD’s interim guidance implementing this provision here.

Civilian Casualties Reporting

FY20 NDAA Section 1703 further strengthened the annual civilian casualties report by requiring additional details about the US military’s consideration of external sources of information, such as steps taken to interview outside sources, the number of investigations initiated as a result of external allegations, and steps it takes to respond to confirmed incidents, including offers of ex gratia payments.

Read the 2019 report here.

Read our analysis of the report here.

FY20 NDAA Section 1723 codified provisions lost from the Trump administration’s changes to the Obama-era executive order on civilian casualties by requiring a report on the number of strikes undertaken by the United States against terrorist targets outside areas of active hostilities and an estimate of civilian and combatant casualties. The provision also required DoD to consider information from NGOs in the preparation of the report and to provide an explanation of any discrepancies between the government’s estimates and those of outside sources.

Deadline: May 1, 2020, and annually thereafter until 2022

Civilian Harm Policy

FY20 NDAA Section 923 required the Secretary of Defense to submit an unclassified report on the resources necessary to implement the civilian casualties policy required by Section 936 of the FY19 NDAA.

Read the report here.

FY20 NDAA Section 1282 further clarified congressional expectations for the civilian casualties policy required by Section 936 of the FY19 NDAA, including requirements to develop and disseminate lessons learned for integrating civilian protection into operational planning and identifying the proximate causes of civilian casualties, and developing practices to prevent, mitigate, or respond to civilian casualties.

Read our & other NGOs’ recommendations for the policy here.

FY20 NDAA Section 1721 required the Department of Defense to commission a comprehensive independent study to be conducted by one of the federally funded research and development centers (FFRDCs) into the full spectrum of the military’s civilian harm policies, practices, resources, and standards.

FY20 NDAA Section 1225 required a report on the lessons learned from US operations in Mosul and Raqqa, including resulting civilian casualties.

Deadline: 180 days after enactment

Use of Force

FY20 NDAA Section 1261 made the report on legal and policy frameworks annual and required the report to list any forces against which a determination has been made that force can be used under the 2001 AUMF, the factual and legal basis for any such determination, and whether force has been used against them. It also required the report to list the criteria for designating high-value targets.

Deadline: March 2 of every year

FY20 NDAA Section 1285 requires a recurring, semi-annual report describing any “actions” taken pursuant to the 2001 AUMF against countries or organizations implicated therein, including the legal and factual basis for the invocation of the AUMF, an intelligence risk assessment of the groups or countries against which the US acted, a description of the authorization, and an assessment of the operation’s scope and duration.

Deadline: Every 180 Days

Security Partnerships

FY20 NDAA Section 1041 strengthened congressional oversight of special operations activities conducted under the 127e program by limiting the use of the fund to support or facilitation of “authorized” operations and requiring additional details in notifications to Congress, including descriptions of operations and the groups being supported, the nature of the support, expected duration of the support, and the legal basis of the operations.

Read more about the issues with 127e in our report, Exception(s) to the Rule(s)

FY20 NDAA Section 1269 required DoD to report on Nigeria’s efforts to reduce civilian casualties in anticipation of the delivery of A-29 Super Tucano aircraft to the Nigerian Air Force.

FY20 NDAA Section 1274 required DoD to submit a report on civilian casualties caused by the Saudi-led Coalition and the Houthis in Yemen.

Deadline: 90 days after enactment and annually thereafter for two years

2020

Civilian Harm Policy

FY21 NDAA Section 1084 encouraged the DoD to make additional progress in 1) ensuring that the combatant commands have the requisite personnel and resources to integrate human rights and the protection of civilians into planning and practices; 2) finalizing and implementing the policy required by Section 936 of the FY19 NDAA; 3) finalizing Department-wide regulations on ex gratia payments; and 4) enhancing the ability of foreign partner forces to reduce civilian casualties.

Security Partnerships

FY21 NDAA Section 1051 further improved oversight over 127e programs by requiring reporting on the entities with which foreign forces receiving US support are in hostilities; steps taken to ensure support is consistent with US national security objectives; and steps taken to ensure that the recipients of support have not engaged in human rights violations.  The provision also clarifies that the authority does not authorize covert action, the introduction of armed forces into hostilities, or support for violations of international humanitarian law.

FY21 NDAA Section 1219 required a report on  training and advisory efforts to improve the Government of Afghanistan’s capability to minimize civilian casualties and other harm to civilians and civilian infrastructure.

Deadline: June 15 and December 15 annually

FY21 NDAA Section 1294 required the Secretary of State, in consultation with the  Secretary of Defense, to submit a plan  for addressing gross violations of human rights and civilian harm in Burkina Faso, Chad, Mali, and Niger, including descriptions of how US assistance has supported or addressed human rights abuses and civilian harm and a strategy for the United States to improve and coordinate civilian harm mitigation measures with other militaries operating in the region.

Deadline: 180 days after enactment

FY21 NDAA Section 1295 required the State Department to submit to Congress a report on US policy in Yemen, including a description of civilian harm in Yemen and an assessment of whether and to what extent members of the Saudi-led Coalition in Yemen have used US-origin defense articles and services in Yemen in contravention of the laws of armed conflict.

Deadline: 120 days after enactment

FY21 NDAA Section 1296 required the US Government Accountability Office (GAO) to report to Congress on U.S. military support to the Saudi-led coalition in Yemen, including an evaluation of DoD processes to determine whether such support has contributed to civilian casualties.

Deadline: 1 year after enactment