The Pentagon will soon have permission from Congress to make condolence payments to the families of civilians killed or injured by American airstrikes in Syria, as well as Iraq and Afghanistan. The new funding is buried deep in the annual defense policy bill, which is quickly on its way to becoming law.
On Friday, the House passed it and the Senate is expected to hold a vote on it this week before it goes to the president for his signature.
As part of this bill, Congress is carving out $5 million — a tiny fraction of the larger $619 billion bill — to be available to make what are called “ex gratia” payments to the civilian casualties of U.S. airstrikes, according to the bill.
Last year’s defense policy bill paved the legal way for such payments to be made in Iraq in addition to Afghanistan. This year’s bill extends permission for those payments through 2018, and adds Syria to the list of countries where such payments can be made.
The expansion of this fund comes after President Obama laid out his administration’s policies for reducing the likelihood of civilian casualties and taking “appropriate steps when such casualties occur” in an executive order this summer. In that order, Obama directed relevant agencies to:
(ii) acknowledge U.S. Government responsibility for civilian casualties and offer condolences, including ex gratia payments, to civilians who are injured or to the families of civilians who are killed;
That part of the executive order also came with a qualification: agencies were directed to take such action “as appropriate and consistent with mission objectives and applicable law.”
The money for Iraq and Syria is included in a program tied to current operations in Afghanistan called the Commanders’ Emergency Response Program, or CERP. In the military it’s also referred to as the Money as a Weapon System.
As I wrote last year for The Daily Beast:
Since 2004, the CERP fund, which was first created for Iraq but then expanded to Afghanistan, has provided American commanders with over $6 billion in petty cash to spend on small reconstruction projects that could help foster goodwill with local populations. It’s also been used to make condolence payments to the families of innocents killed by U.S. forces.
The rules that govern CERP say that most commanders can approve up to $2,500 per person or damaged property, but higher ups can sign off on even bigger sums if needed, according to a May 2015 investigation by ProPublica.
The U.S. military made use of the funding last year to pay the survivors of the airstrike on the hospital run by Doctors Without Borders in Kunduz. While there is no public information about similar payments being made in the fight against ISIS, the fact that the military has requested the funding shows it’s anticipating a need for it.
As of Dec. 2, the US has conducted almost 13,000 strikes in Iraq and Syria, with 7,183 in Iraq and 5,693 in Syria, according to the Pentagon.
The Defense Department is constantly receiving and assessing reports of civilian deaths and, in recent months, has started to provide reporters more information about when US-led coalition strikes have killed civilians.
In November, U.S. Central Command, which overseas military operations in Iraq and Syria, said over the past year, “24 U.S. airstrikes in Iraq and Syria regrettably may have killed 64 civilians and injured 8 other civilians.”
“The assessments determined that in each of these strikes the right processes were followed; each complied with Law of Armed Conflict and significant precautions were taken, despite the unfortunate outcome,” said CENTCOM spokesman Col. John Thomas at the time.
To date, the Pentagon admits to killing 173 civilians since the beginning operations against ISIL in the summer of 2014.
In a speech at NYU Law School earlier this week, Jennifer O’Connor, the Defense Department’s general counsel, discussed how commanders and military lawyers make targeting decisions and weigh the potential for civilians casualties before taking a strike.