. containers; PAKRICK LEAHY AGRICULTURE, NUTRITION. AND vesmom? FORESTRY JUDICIARY May 22, 2017 The Honerable James Mattis Secretary of Defense Department of Defense Washington, DC 20301 Dear Secretary Mattis: i am writing regarding reports of increased civilian casualties resulting from US. airstrikes in Iraq and Syria. In July 2016 I wrote to your predecessor, Secretary Carter, to commend the Department?s record of adherence to the laws of armed conflict and its practice of investigating allegations of civilian casualties resulting from US. combat operations. I also offered my support in helping the Department continue to improve efforts to prevent and investigate such incidents, and to provide compensation to victims, including any resources necessary to do so. I know that you have also Spoken about the Department?s efforts to reduce-the loss of innocent life, and I extend to you the same offer. However, since President Trump took office there have been reports that the White House is seeking to loosen the rules of engagement for our'military against ISIS. This is explicitly called for in the recent Executive Order for defeating ISIS. While defeating ISIS is a national priority, I have serious concerns that loosening the rules of engagement may have negative consequences for innocent civilians, a result that could impede our military?s ability to effectively carry out its mission, enable ISIS to exploit such casualties to incite local resentment against the United States, and damage our image as the nation that sets the standard for adherence to the laws of war. Therefore, as your Department participates in the development of an updated policy on the rules of engagement, I urge you to ensure that the protection of civilians remains a high priority. I would also appreciate your answers to the following questions: a How do the current'rules of engagement account for the protection of civilians, including with respect to the delegation of authority for when and how to engage certain targets and for determining whether to identify an area as ?an area of active hostility?, aswas reportedly the case recently in Somalia? How have these procedures changed under the Trump Administration, if at ali? What is the Department?s explanation for why civilian casualties have reportedly increased? a Given the increase in civilian casualties, what is the Department?s assessment of the effectiveness of the current policy as it relates to mitigating harm to civilians? What do OFFICES: COURT HDUSE PLAZA. 199 MAW FEDERAL HOGM 338. BOEIZZMEGS OR DIM. TOLL FREE 148001652?3?33 PRINTED 0N RECYCLED PAPER you assess is the impact of such harm on U.S.-led operations, including public support in these countries for the US. military? Are there plans for updated guidance fer the protection. of civilians during U.S. combat operations? In the event of an allegation of civilian casualties resulting from US. combat operations, how does the Department investigate the incident to determine its credibility, and analyze information collected to determine whether a change is needed to address a pattern of civilian harm if one exists? Is there a formal and centralized process for doing so, and if so, what is it? Of course, preventing civilian casualties in war is not always possible, so I believe it is important to ensure that we have effective policies and procedures to compensate innocent victims. I have been concerned withthis issue for more than a decade and have songht to make the current system for providing amends to civilians less ad hoc in nature. While I am aware that funds for this purpo'se have been provided through the Commander?s Emergency Response Program, section 8111 of the 2016 Consolidated Appropriations Act, which is continued as section 8107 of the 2017 Consolidated Appropriations Act, provides a framework for compensating civilians. The provision gives commanders the authority to use appropriated funds to provide, at their discretion and consistent with the-recommendations of a legal advisor, ex gratia payments for property damage, personal injury, or death incident to US. combat operations in a foreign country. I would appreciate knowing how you plan to exercise the authority in section 8107 of the 2017 Consolidated Appropriations Act. Speci?cally, how many times. has the US. military provided amends to civilians in Iraq and Syria under this authority? Are there factors that limit the use of this authority? Finally, I am also interested in how we can most effectively engage our partners on the issue of civilian protection, including through training to prevent civilian harm and to strengthen capabilities to investigate and address it where it occurs, both by providing compensation to victims and ensuring accountability for those who violate the laws of armed con?ict. 1 will be sending a separate letter to you and Secretary Tillerson on this matter. Thank you for your consideration. I look forward to your response. Sincerely, CO Committe ASSISTANT SECRETARY OF DEFENSE 2500 DEFENSE PENTAGON WASHINGTON, 20301-2500 SPECIAL I Low The Honorable Patrick J. Leahy United. States Senate Washington, DC 20510-4502 Dear Senator Leahy: Thank you for your letter of May 22, .2017, regarding the Department of Defense?s (DOD) efforts to reduce the risk ofcivilian casualties in our operations and to respond when such casualties occur. recognizes that the protection of civilians against the harmful effects of hostilities is one of the main purposes of the law of war (also referred to as international humanitarian law or the law of armed con?ict]. As Secretary Mattis has made clear, no other nation?s military goes to greater to mitigate harm to civilians than the U.S. military. US. forces comply with the law of war during all armed con?icts, including in the current armed con?ict against al?Qa?ida and associated forces and against the Islamic State of Iraq and Syria (ISIS). also routinely applies certain heightened policy standards that are more protective of civilians than is required under the law of war. With regard to your question about changes to the rules of engagement, the Secretary has not issued any changes to the ROE for counter-ISIS "operatiOns. Further, takes measures to reduce the risk of civilian casualties in all theaters of operation, even in areas outside active hostilities. Examples of measures that 1301) takes to reduce risks to civilians during U.S. military operations in armed con?ict include: (3) developing and ?elding weapon systems and other technological capabilities that help to enable the discriminate use of force in different operational contexts; (2) reviewing or investigating incidents involving civilian casualties as appropriate and consistent with mission objectives and applicable law, including considering relevant and credible information from all available sources, such as other government agencies, partner governments, and non-governmental organizations; and taking measures to mitigate the likelihood of future incidents of civilian casualties by applying lessons learned. However, even if all parties comply with their obligations under the law of war, and even when parties apply heightened policy standards to mitigate risk to civilians, the unfortunate truth is that civilians will still suffer harm during armed con?ict. DOD takes seriously reports that its operations have caused civilian casualties, and substantial efforts are made to investigate, as appropriate, each credible report. as thoroughly as possible, subject to practical limitations. The. US. military/?s post-strike review processes can utilize various sources of sensitive intelligence, including video observations, human sources and assets, signals intelligence, overhead imagery, and accounts from local of?cials on the ground, as well as press and NGO reports. In many theaters, due to the restrictive security environment, US. ?or host country forces are physically unable to conduct a ?rst-hand, ?rst-person review and assessment. For this and other reasons, it may be dif?cult to assess with. complete con?dence the identity of who was killed. As such, our assessments may be revised over time if new information becomes available. In this con?ict, the military mission is to defeat a terrorist group that has committed atrocities and continues to cause human suffering. Defeating this group will remove a persistent threat to civilians in Iraq and Syria. Thus, we would emphasize that protecting civilians is. a fundamental part of US. and Coalition objectives in defeating ISIS. Regarding your questions about ex. gratia payments for civilian casualties, appreciates the support it has received from Congress in authorizing and providing resources for the Commanders? Emergency Response Program (CERP) through which commanders may make ex gratia payments, when appropriate, to civilians harmed in our operations. Ex gratin payments may not always be appropriate or feasible, but where such payments are in furtherance of military objectives and where payments can be effectuated responsibly. they are an important capability for the US. military. However, there continue to be limitations on our ability to make condolence payments in certain theaters including the identi?cation of those killed and/or their next of kin, delivery ofpayrnents in denied areas, and, in some cases: the association of those killed with terrorist groups or hostile forces. DOD has not to date made ex gratis? payments for civilian casualties in Syria for various reasons, including practical limitations. has not made ex gratia payments in iraq under CERP since 201 for various-reasons, including particular considerations that arise when US. military operations are conducted in partnership with another sovereign nation. Ex gratin payments are an important tool for I want to. thank you and your staff for your interest in these matters, and we welcome the continued dialogue. Sincerely, Mark 13. Mitchell 5 Acting