DOD Law of War Policies: Actions Needed to Ensure Proper Reporting and Retention of Alleged Violations
Fast Facts
The U.S. military must follow the law of war, which sets out rules—such as prohibiting torture and unnecessary destruction—for armed conflicts.
DOD has procedures for complying with the law, including how alleged violations should be reported. But DOD doesn't have a system for retaining comprehensive records of these alleged violations. Some of the military components we reviewed also didn't retain complete records of alleged violations for their areas of responsibility.
Without a system to retain these records, DOD leadership may lack the information needed to fully comply with the law of war. We recommended that DOD develop such a system.
Highlights
What GAO Found
U.S. Africa Command (AFRICOM) and U.S. Central Command (CENTCOM) must comply with the “law of war”—that part of international law that regulates the conduct of armed hostilities—when conducting kinetic strikes, which involve the use of explosive munitions. The Department of Defense (DOD) integrates law of war principles into training and exercises, strike procedures, and legal support as part of its approach for ensuring AFRICOM and CENTCOM compliance with the law of war.
Selected Elements of DOD's Approach for Ensuring Law of War Compliance
DOD established a process to report alleged violations of the law of war and to protect individuals who report such allegations from reprisal. AFRICOM and CENTCOM have issued policies to implement the reporting process, but AFRICOM's policy is outdated and not fully aligned with current DOD policy. For example, it uses outdated definitions for what constitutes a “reportable incident.” As a result, AFRICOM may not be aware of all such allegations or be in a position to forward reporting to DOD leadership as required. The DOD Office of the Inspector General and component inspectors general, such as those for AFRICOM and CENTCOM, investigate claims of reprisal related to reports of law of war violations. In January 2013 – December 2022, there were no substantiated cases of reprisal against individuals who reported alleged law of war violations in the AFRICOM or CENTCOM area of responsibility.
DOD lacks comprehensive records of alleged law of war violations. GAO obtained records of 47 alleged law of war violations committed by U.S. personnel in January 2012 – December 2022 in the AFRICOM and CENTCOM areas of responsibility. However, not all entities responsible for reporting and retaining records of alleged violations were able to provide a complete record in accordance with DOD records management requirements. Neither CENTCOM nor one of its subordinate commands retained comprehensive records of allegations. Additionally, another DOD entity, which receives and forwards such reports to DOD leadership, did not have records of all alleged law of war violations sent by AFRICOM and CENTCOM. Without a system to retain comprehensive records of alleged law of war violations, DOD leadership may not be fully aware of all allegations and thus lacks information needed to fully implement the law of war program.
This is a public version of a classified report that GAO issued in December 2023. Information that DOD deemed classified has been omitted.
Why GAO Did This Study
Since 2012, AFRICOM and CENTCOM have conducted thousands of kinetic strikes. Such strikes must comply with the law of war. In 2021, the DOD Office of the Inspector General and media reporting identified deficiencies with DOD reporting of alleged law of war violations following kinetic strikes.
GAO was asked to evaluate DOD law of war policies, including operations involving kinetic strikes. This report (1) describes DOD's approach for ensuring AFRICOM and CENTCOM comply with the law of war when conducting kinetic strike operations, (2) evaluates the extent to which DOD has established processes to report law of war violations and to protect individuals who report violations from reprisal, and (3) evaluates information on the extent of reported alleged law of war violations in AFRICOM and CENTCOM. GAO compared law of war principles and reporting requirements with training materials and strike procedures. GAO collected reports of alleged law of war violations that occurred within AFRICOM and CENTCOM and conducted site visits and interviewed cognizant officials involved in kinetic strike operations.
Recommendations
GAO is making two recommendations to DOD, specifically that (1) AFRICOM update its law of war reporting guidance to align with current DOD policy and (2) the Chairman of the Joint Chiefs of Staff, in coordination with the DOD General Counsel, develop a system to comprehensively retain records of alleged law of war violations. DOD concurred with the recommendations.
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| Department of Defense | The Secretary of Defense should ensure that the Commander, U.S. Africa Command, update its guidance for reporting allegations of law of war violations to align with DOD Directive 2311.01 (July 2, 2020) (Recommendation 1). |
DOD concurred with this recommendation, stating that the department agrees that updating U.S. Africa Command's guidance for reporting allegations of law of war violations is warranted. In May 2024, DOD reported that U.S. Africa Command began revisions of its Law of War Program instruction to reflect the most recent DOD policies. DOD estimated completion in September 2024. We will continue to monitor DOD's efforts to address this recommendation.
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| Department of Defense | The Secretary of Defense should ensure that the Chairman, Joint Chiefs of Staff, in coordination with the General Counsel, Department of Defense, develops a system to comprehensively retain records of alleged law of war violations (Recommendation 2). |
DOD concurred with this recommendation, stating that the department agrees that comprehensive records management for records of alleged law of war violations, in accordance with records management regulations, is warranted. As of May 2024, we requested additional information supporting DOD's efforts to develop a system to comprehensively retain records of alleged law of war violations. We will continue to monitor DOD's efforts to address this recommendation.
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