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2019 | U.S. National Defense Authorization Act for Fiscal Year 2020

This 2020 National Defense Authorization Act for Fiscal Year 2020[1] includes several measures that build on prior efforts to improve the US Department of Defense’s (DoD) response to civilian casualties by enhancing transparency and oversight though mandatory quarterly reporting to Congress.

Prior to this act, the US military was able to make or neglect voluntary ex gratia payments (condolence payments), for civilian deaths or injuries in its operations without congressional knowledge or oversight. Given that such payments are one of the only avenues through which the US military acknowledges and responds to civilian deaths or injuries, such oversight is critical.

Section 1213

Section 1213 determines that between 2020 and 31 December 2022, a maximum annual amount of USD 3,000,000 may be made available for ex gratia payments for property damage, personal injury, or death caused by the US armed forces and -for the first time- in partnered or coalition operations. This addition fills a major gap since until this act, the US military did not pay ex gratia for civilian harm in coalition operations (e.g., Operation Inherent Resolve in Iraq and Syria) or in partnered operations (e.g., Somalia) without direct attribution to U.S. armed forces.

Subsection (c ) underscores the voluntary nature of an ex gratia payment by stating that such payment carries no admission of legal wrongdoing. Subsection (g) requires the DoD to report to the congressional defense committees every 90 days on the ex gratia payments the US military makes during this period, including how claims for such payments were verified. Notably, when no ex gratia payments are made during this period, the DoD must clarify in its report whether and why any such payment was refused. This information is relevant for it provides insight into the limitations of ex gratia payments as an effective response to civilian harm: a payment may be refused on grounds of the injured party’s perception that it did not match the gravity of the loss experienced. Or it might note that a recipient was offended by the manner in which the payment was offered, in that there was no acknowledgment of legal responsibility. If no payments were even offered during a given period, the DoD must give a reason why; Were investigations still pending? Had no claimants come forward? Did the DoD dispute media accounts of civilian casualties?

Section 1703

Parallel improvements are contained in section 1703 that now require the DoD to include in its report the investigations that were initiated as a result of allegations of civilian casualties resulting from US military operations. In addition, the report must contain information about the steps taken in response to confirmed incidents of civilian harm, including ex gratia payments. 

Section 1723

Section 1723 requires the DoD to report annually to Congress on the number of estimated civilian deaths resulting from US counter terrorism operations outside areas of active hostilities. Thereto, it must consider information from NGOs. The DoD must also provide an explanation of any discrepancies in numbers of civilian deaths between the government’s estimates and those of outside sources.

[1] Annual “must-pass” bill that authorizes US defense spending. This bill was enacted after being signed by the President on December 20, 2019.