Condolence Payments for Civilian Casualties: Lessons for Applying the New NDAA

A new provision of the National Defense Authorization Act (NDAA) has the potential to change the way the U.S. military acknowledges and responds to civilian casualties for the better. Now operative law, Section 936 calls for the designation of a senior civilian official whose responsibilities include ensuring that the Department of Defense (DoD) establishes uniform processes and standards for acknowledging responsibility for civilian casualties and for offering condolence payments to victims and their families. This legislation, although imperfect, creates an unprecedented opportunity for DoD to learn from past experience and strengthen its mechanisms for handling such losses.

Past calls for DoD to standardize its ad hoc policy on making amends for civilian casualties have gone unheeded. In 2009, Congress instructed DoD to report on the viability of a uniform program. The 2010 DoD report to Congress, which I obtained through a Freedom of Information Act (FOIA) request, stated, “Creating a one-size-fits-all set of additional or uniform criteria or standards could be counter-productive or unwieldy.” In 2014 and subsequent years, legislation gave DoD the leeway to establish a dedicated office but did not require it.

Until now, the fear of legal liability has driven condolence-payment policy. DoD officials have been averse to fueling any misperception that the U.S. military has an obligation to provide compensation for civilian casualties that do not violate international humanitarian law.

But sentiment shifted in the wake of a groundbreaking New York Times investigation by Azmat Khan and Anand Gopal last November on the failure to implement amends in Iraq and Syria. Section 936 marks the first time that Congress has mandated uniform DoD processes and standards in this area.

Processes for making amends are only part of the necessary response to ongoing civilian harm in U.S. military operations. Importantly, Section 936 also includes measures to better investigate and prevent civilian casualties, as well as mechanisms to improve data collection and analysis. In conjunction with those requirements, a more principled amends process should send the message that civilian harm is important enough to demand institutional attention, tracking, and acknowledgement at high levels of the U.S. government. The process also can serve to acknowledge the humanity of the injured individual and reinforce share values, as Lesley Wexler and Jennifer K. Robbennolt suggested in 2017.

What should uniform processes and standards on amends look like? I have sought to answer this question over 1.5 years of research into the U.S. response to civilian casualties. Since March 2017, I have interviewed nineteen individuals whose work has intersected with condolence payments, including DoD officials, U.S. soldiers, judge advocates, journalists, human rights researchers, and former Obama administration appointees. FOIA requests yielded the 2010 DoD report to Congress; condolence payment data for Afghanistan from 2015 and 2016 (which DoD has since released publicly here); data on payments in the October 2015 attack on a Doctors Without Borders (MSF) hospital in Kunduz, Afghanistan; and letters indicating that there was no responsive data on payments in Yemen, Iraq, or Syria.

The study revealed three flashpoints in the debate over standardizing condolence payments and related U.S. policy on acknowledging civilian harm:

  • The troubled U.S. military response to the 2015 attack on the hospital in Kunduz;
  • The lack of condolence payments in the air wars in Iraq and Syria; and
  • The secrecy surrounding condolence payments in drone strikes in Yemen, Pakistan, and elsewhere.

These three contexts offer important lessons for DoD officials seeking to develop uniform processes and standards on responding to civilian harm. Amends are an inherently flawed but important step toward dignifying civilian losses in U.S. military operations. As a response rather than a preventive measure, amends will always have a limited ability to address suffering. But that does not negate the need for a more sensitive and effective policy.

The following provides some key recommendations for implementing Section 936, drawn from the study.

1. Strengthen DoD Leadership

The senior official chosen to oversee civilian casualty policy should have the requisite expertise and time to ensure s/he can direct meaningful policy changes.

New DoD leadership on amends has long been a goal of advocates in this field. In 2010, the Center for Civilians in Conflict (CIVIC) called for “a high-level Pentagon position on civilian harm to oversee policies, strategies, and tactics that focus on preventing and addressing civilian harm.” Several of the individuals I interviewed, including some who previously held high-level posts at DoD, echoed this call for such an appointment.

At first glance, Section 936 would seem to fulfill this goal. The phrase “designate a senior civilian official” certainly gives the Under Secretary the leeway to appoint a new official with a background on civilian harm. However, Section 936 could also be interpreted in a narrower vein, given the ambiguity of the term “designate.” The Under Secretary may only be required to supplement the responsibilities of an existing senior official, who may or may not have any background on civilian casualties or sufficient time to exercise his/her new responsibilities. This is unfortunate, as a new official working full-time on civilian casualty policy would have the ability to accomplish far more than someone with an existing roster of duties.

I would recommend — and hope — that the Under Secretary appoints a new official with experience working on these issues and the ability to work on them full-time. Even if the Under Secretary chooses to reshuffle the responsibilities of an existing official instead, the designated person should have a solid background in civilian casualty policy and a significant amount of time to devote to the new posting.

2. Plan for New Missions

DoD should ensure that each new operation includes a plan for addressing civilian harm.

When President Barack Obama announced the air campaign against the Islamic State (ISIS) in August 2014, there was no framework for providing condolence payments in Iraq or Syria. The NDAA authorized the use of Commanders’ Emergency Response Program (CERP) funding for such payments in Iraq in November 2015 and Syria in December 2016, allowing up to $5 million for such payments. In their November 16, 2017, New York Times investigation, however, Khan and Gopal found that “the Defense Department has failed to enact these provisions or even propose a plan for how it might disburse that money.”

A coalition spokesperson told Human Rights Watch (HRW) last year that Syrian civilians should submit requests for condolence payments to the coalition’s “claims department,” but HRW found no evidence that such a claims department actually existed in Syria at the time. In Iraq, Khan and Gopal reported, Basim Razzo, an Iraqi man who lost four family members and their two houses and cars in a U.S. strike, spent 1.5 years of his life trying to find the right place to submit his claim, and only then was able to do so because of the assistance of western journalists.

Likewise, in Yemen, Pakistan, and elsewhere, survivors have no place to submit claims, and condolence payments have been made in secret, through local intermediaries, if at all, with one notable exception: the Obama administration acknowledged offering a condolence payment to an Italian citizen killed in a U.S. drone strike in Pakistan. Non-western civilians have yet to receive such public recognition.

To avoid the obfuscation and anger that have surrounded the lack of condolence payments in the war against ISIS and in drone operations, DoD should build a plan for implementation into each new mission from the start. There is currently no framework for adapting the existing payment mechanisms, which were designed for the ground wars in Iraq and Afghanistan, to new geographic and operational contexts.

Officials should think proactively about how to leverage local U.S. contacts and partners to publicize the program. In areas where there is not a significant U.S. troop presence, DoD should identify contact points for civilians to submit claims that match geographic realities, such as the defense attaché at the U.S. Embassy in Baghdad, officers at de facto U.S. bases in Syria, partner forces, or non-governmental organizations.

3. Allow Online Claims

Civilians harmed in U.S. military operations should be able to submit requests for condolence payments and any required documentation online.

Section 936 calls on the new senior official to ensure the development of “publicly available means, including an Internet-based mechanism,” for the submissions of allegations of civilian casualties from U.S. military operations. The Washington Post reported in 2016, “In Afghanistan, where it’s harder to travel, the military established a Dari- and Pashto-language website and text messaging service to help Afghans alert them to civilian deaths.” Building on this precedent, the internet-based mechanism required by the legislation should include an online claims submission portal in all applicable languages.

 4. Raise Payments Based on Scale and Gravity

The overall budget for condolence payments should be increased, and commanders should be given greater discretion to authorize higher payments.

In Kunduz, Afghanistan, where the U.S. military mistakenly bombed the MSF hospital in 2015, the amounts offered for the 42 deaths ($6,000 per claimant) and dozens of injuries ($3,000 per claimant) prompted outrage. In Iraq, Razzo described the $15,000 condolence payment he was offered as “an insult to me” and declined to accept it.

The average condolence payment under CERP is even lower—about $2,500—not because of a determination that this amount of money is adequate, but because $2,500 is the highest amount that a battalion commander can allocate on his/her own under CERP. Given the value that DoD and the U.S. military have historically placed on commanders’ discretion, it is puzzling that this payment threshold remains so low.

Commanders should be given the flexibility to authorize payments that come closer to matching the scale and gravity of the harm in question. There should also be a simplified process for authorizing payments at higher levels, such as the “Condolence Committee” scheme proposed by Major Katherine M. E. Adams, a Judge Advocate for the U.S. Army, in Military Law Review in 2016, which involves a graduated scale requiring greater levels of scrutiny as payment amounts reach certain thresholds.

5. Improve Training

The U.S. military should establish a permanent training slot on condolence payments at all of its training centers.

In Kunduz, survivors balked at the $6,000 offered for deaths and $3,000 for injuries. When they protested and demanded compensation, military officers responded by handing out SF-95 forms, which could only be used to file claims under the Foreign Claims Act (FCA), despite the fact that Kunduz survivors’ claims would be barred under the FCA’s combat exclusion. My interviewees offered two possible explanations for the officers’ behavior: either the officers had a poor understanding of the combat exclusion, or they were trying to relieve some of the pressure they felt to provide compensation. Regardless, they would have benefited from better training, either on the applicability of the FCA or on strategies for defusing high-pressure situations without misleading civilians. (This case also provides another argument for raising payment thresholds. If the military officers had been able to offer payments more commensurate with the level of harm, they might have faced fewer demands for compensation in the first place.)

The U.S. Army Claims Service already administers trainings on the FCA and condolence payments for judge advocates who staff Foreign Claims Commissions. This training program should be expanded. Training on the FCA, condolence payments, and victim sensitivity should be institutionalized both in the initial and periodic training that judge advocates and commanders receive. This training should also require judge advocates to make a legal determination that the FCA might apply before military officers can distribute FCA forms.

A course on condolence payments would help commanders understand the ways in which such payments could be strategically beneficial and help them conceive of amends as one of the tools in their arsenal. Empowering commanders with the requisite legal and tactical knowledge will reinforce their ability to make independent decisions in tough situations.

A Final Consideration

At the heart of discussions over condolence payments, there is an unresolved tension between more uniform standards for payment amounts and a more individualized process of reconciliation between civilians and soldiers. To chart a path forward, the key will be to find a balance that best serves the interests of fairness and victim sensitivity.

On the one hand, advocates have long called for more consistency and predictability in payment amounts. In 2015, CIVIC released a report documenting considerable discrepancies in payment allocations in Afghanistan from October 2005 to September 2014. For example, in Fiscal Year 2012, the death of two women prompted a payment of about $3,000; the death of a man, about $9,000; the death of a son, about $150; and the death of a daughter, about $5,000.

These wide variations stem from the discretion afforded to individual commanders. There is value to an individualized amends process, and standardization comes with its own risks of normalizing harm. Still, more uniform guidelines on the appropriate payments—as well as better data sharing and transparency across commands, would go a long way toward avoiding such extreme differences in payments for the same kinds of loss.

On the other hand, clearer criteria for payment amounts should not come at the expense of an individualized process. As noted earlier, Wexler and Robbennolt explained this concept in 2017:

Amends are about the recognition of a relationship between the injurer and the injured, the acknowledgement of the significance of the individual who was injured, and the reinforcement of a shared set of values or norms. Thus, conceiving of the endeavor to systematize the amends-making process as striving to provide a standardized insurance-like type of payment risks limiting the process’s ability to achieve either its supply- or demand-side objectives.

Scholars like Wexler and Robbennolt, as well as Jeremy Joseph, have argued that the U.S. military should devote more attention to the human elements of the amends process for both foreign civilians and soldiers. Joseph proposed in 2007 that the military adopt a “culturally tailored” pilot program for Iraq, incorporating elements of mediation, dialogue, reconciliation, and restorative justice. In 2017, Wexler and Robbennolt advised that the process for making amends should borrow crucial elements from the reparations context — without the associated legal obligations — including the ideas of taking responsibility and preventing a repetition of the offense:

Reparative measures that also focus on the provision acknowledgment, information, sympathy, and concern for future behavior may be able to more effectively address victims’ desire for acknowledgement, respect, explanation, and meaning.

A more individualized approach to amends, they suggested, could also better address the psychological burden on soldiers whose actions cause the deaths or injuries of civilians.

The new senior official and his/her staff will have to navigate this tension, among others, when reflecting on the principles that should undergird more uniform standards and processes on acknowledging civilian harm. Section 936 presents a rare opportunity for DoD officials to take a step back and think carefully about the values that such policies should serve. Greater reflection on the nature of the U.S. response to civilian casualties is long overdue—and urgently needed.

Hundreds of pairs of shoes were set out on the National Mall in Washington D.C. in May 2006 to symbolize the estimated 100,000 Iraqi civilians who had died by that point in the war that began in 2003. The “Eyes Wide Open: The Human Cost of War” exhibition also included 2,433 pairs of boots to represent the U.S. military personnel who had died. The exhibition was organized by the American Friends Service Committee. (Photo by Chip Somodevilla/Getty Images). 

 

About the Author(s)

Joanna Naples-Mitchell

Joanna Naples-Mitchell, a 2018 graduate of New York University (NYU) School of Law, joins Human Rights Watch in September as this year’s NYU School of Law Fellow. She previously served as a paralegal with the Human Rights and Special Prosecutions Section of the Criminal Division of the U.S. Department of Justice.