Pentagon Processes on Civilian Casualties Inconsistent, in Need of Reform

Lessons from U.S. military strikes that caused civilian casualties are not shared across the Department of Defense (DoD) in a way that meaningfully reduces future civilian casualties, according to an assessment by the nonpartisan RAND Corporation.

While the DoD has committed to an array of civilian-harm policies and processes, weaknesses and inconsistencies remain, new research finds. The DoD is not adequately organized or resourced to sufficiently assess, reduce, and respond to civilian-harm incidents.

“Assessing and investigating the full extent of civilian harm in the aftermath of military operations is crucial to help the U.S. military fulfill its civilian-protection responsibilities,” RAND senior researcher Michael McNerney said. “Improvements will require DoD to address civilian-harm issues with institutional, not just operational, changes.”

Institutional changes should include dedicated positions for the protection of civilians across DoD, improved data collection and analysis, increased engagement of external stakeholders, and improved guidance for investigating and responding to civilian-harm incidents, according to the report. Tactical and operational-level improvements, such as targeting, are also important but insufficient.

The DoD built a strong foundation for compliance with the law of war, including protection of civilians during armed conflict, with detailed guidance in the Department of Defense Law of War Manual and other sources, according to the report.

Effective assessments and investigations of civilian harm should not only document adherence to law of war requirements but be improved to provide a mechanism for learning that reduces civilian-harm incidents and improves future mission effectiveness, the report finds. Accurate assessments can also improve military forces' understanding of the civilian environments in which they operate.

Detecting civilian harm during air campaigns is inherently challenging, especially during air strikes on structures. DoD should improve its ability to draw on the best-available information in civilian-harm assessments. This includes the military's own operational data, which is often poorly managed, and external sources and stakeholders, which DoD should engage more proactively, according to the report.

Administrative investigations, despite being the best tool for documenting and fully understanding civilian-casualty incidents, have shortcomings and are underutilized. The report found that the level of detail provided in post-incident administrative investigations varied widely, creating obstacles to understanding important contextual factors and analyzing root causes of civilian harm.

The stigma associated with investigations typically results in limited distribution of their findings. In interviews, RAND researchers found that even personnel involved in an incident often never received investigation results, and thus could not learn anything from them.

The report recommends implementing a standardized civilian-harm operational reporting process. This process should document and retain critical information at an institutional level, which will enhance learning from previous incidents.

The DoD's response to civilian harm takes many forms, including public acknowledgment, expressions of sympathy, livelihood assistance, restoration of damaged infrastructure, and ex gratia (or condolence) payments to affected individuals and communities. During the past two decades, various authorities underlying the DoD's ability to make such payments have led to ad hoc practices, counterproductive results, and a lack of transparency. In June 2020, the DoD released an interim policy on such payments, providing a new level of standardization and specifying the conditions under which they may be made. But the interim policy requires more transparency around the determination and disbursement of such payments, according to the report. DoD should also provide clarity around how payments will be leveraged in non-counterinsurgency environments.

Researchers also found that DoD has too few personnel trained in civilian-harm issues. It lacks structures and capabilities for key tasks, such as analyzing and monitoring civilian-harm trends over time and archiving civilian harm–related data. The report recommends establishing a center of excellence for civilian protection, which would create a center of gravity for DoD to institutionalize lessons and improve its performance. It also recommends that DoD establish dedicated, permanent positions for protection of civilians in each geographic combatant command and across the DoD.

The report was mandated by the 2020 National Defense Authorization Act (NDAA), sponsored by the Office of the Secretary of Defense, and conducted within the International Security and Defense Policy Center of the RAND National Security Research Division (NSRD).