Toward a Consistent and Coherent Ex Gratia Policy for Civilian Casualties

The summer of 2017 was an extended nightmare for the Badrans. Over the course of several weeks, 39 members of Rasha Badran’s family, most of them women and children, were killed in four separate U.S.-led coalition air strikes, as they moved from place to place inside Raqqa, Syria, desperately trying to avoid the rapidly shifting frontlines of battle. U.S. Secretary of Defense James Mattis had promised a “war of annihilation” to oust the armed group calling itself the Islamic State of Iraq and Syria (ISIS) from the Syrian city. That is exactly what happened. By the time ISIS fighters left the city in October, some 1600 Syrian civilians had been killed by U.S.-led coalition forces, as reported by Amnesty International (where I work). The city itself was largely destroyed.

Conflicts that the U.S. military has taken part in over the past three years have been devastating to civilians, killing and maiming thousands. Although these consequences remain mostly hidden from the U.S. public, Congress has tried to increase transparency by requiring the Department of Defense (DOD) to report on when and where its forces have killed or injured civilians. This year, for the first time, DOD was also required to report payments it has made as condolence or assistance to survivors and family members of victims left behind.

That report, and DOD’s new interim regulations governing those payments, underscore that the U.S. process of making so-called “ex gratia” payments, while a worthwhile effort, lacks coherence or consistency, and fails to recognize the human suffering it was designed to address. Although it offers an opportunity to provide some practical assistance and acknowledgment to victims of U.S. firepower, the military needs to re-think and re-purpose those payments dramatically.

Section 1213 of the 2020 NDAA authorizes “ex gratia” payments (meaning “by favor” or “out of grace”) for:

“damage, personal injury, or death that is incident to the use of force by the United States Armed Forces, a coalition that includes the United States, a military organization supporting the United States, or a military organization supporting the United States or such coalition”

The payments are called “ex gratia” to emphasize that they’re not required, but discretionary payments the military can choose (or decline) to make. As such, they are not reparations, to which victims have a right under international law for serious violations of the laws of war, as set out in the UN Basic Principles. Because the United States rarely acknowledges such violations, despite organizations such as Amnesty International, sometimes presenting evidence of them, ex gratia payments are, as a practical matter, the only form of payment civilian victims of U.S. military force may receive.

In the past, these payments have happened in secret, with no consistent policy guidance or congressional oversight. This changed in June, when DOD published interim regulations governing those payments. And in April, pursuant to congressional mandate, DOD published its first report on the payments made. Both are illuminating.

Significantly, the DOD report highlights that in 2019, the overwhelming majority of what the report calls “ex gratia” payments – 605 out of 611 – were made in Afghanistan, where the United States has long had troops on the ground, although it’s rapidly withdrawing those. The other six were in Iraq.

But these are not the only places where U.S. forces harmed civilians. Amnesty, for example, has documented 21 civilians killed and 11 injured in Somalia since early 2017. To date, none of them have received any payments from the U.S. government.

And in other conflicts Amnesty has documented previously – the bombing of Raqqa in Syria, for example – none of the hundreds of individuals whose cases Amnesty investigated and whom Amnesty researchers interviewed had even been contacted by the U.S. government, let alone received any payments for their losses. That includes the Badrans and other families, for whose death the DOD eventually admitted responsibility after months of denial. The same is true for the military operation in Mosul, Iraq, by the U.S.-led coalition in 2016-2017, which claimed thousands of civilian lives. The U.S. government does not claim to have made payments in either of those conflicts.

Why the disparity?

The United States has had a significant troop presence over the years in Afghanistan, so it likely believed making payments was in its strategic interest. According to the newly-issued DOD regulations, ex gratia payments are designed “to help authorized commanders obtain and maintain friendly relations with and the support of local populations where U.S. forces are operating…” Assisting survivors of civilians killed or those who have been gravely injured does not seem to be a consideration under this guidance. That allows the United States to provide condolence payments to victims where the United States has troops on the ground over time, and to disregard those killed by U.S. air strikes, or from afar with U.S. artillery, despite the obvious humanitarian and strategic reasons to attempt to provide similar payments to all civilian victims of U.S. firepower. Of course, it may also be easier to determine how to dole out such payments fairly and wisely when the United States has more personnel on the ground and a better awareness of the local situation.

That highlights another point about civilian protection, however: when the United States doesn’t have significant numbers of troops on the ground and strong local contacts, it may be less likely to know whom it’s killing, and in some contexts may be taking fewer precautions to protect civilians. This was the case regarding the assault on Raqqa, when the United States, leading a coalition of 77 countries but relying largely on Kurdish armed groups to do the fighting on the ground, used massive airpower and artillery to oust ISIS. Amnesty, working with the U.K.-based non-governmental organization Airwars, documented at least 1600 civilians killed in a four-month period by the U.S.-led coalition. The U.S. government has only acknowledged about 10 percent of those killings, and as far as we know, it’s done nothing to provide survivors and family members of victims any payments in the aftermath, although the area is easily accessible to U.S. personnel.

In Somalia, too, a U.S. war against al-Shabaab fought by remotely-piloted as well as manned aircraft has killed dozens of civilians, according to Amnesty’s investigation of just nine of the more than 150 U.S. lethal strikes there. The Pentagon has still refused to acknowledge most of those civilian deaths and injuries, insisting that all except four killed and three wounded were combatants. AFRICOM only acknowledged the first two of those four civilian deaths — a woman and a young child killed by a U.S. air strike near the town of El Buur in April 2018 — after Amnesty released its first report documenting civilian casualties from U.S. strikes in Somalia. That was a year after the incident occurred. To date, the survivors of the El Buur strike have not been contacted by the U.S. military to offer direct acknowledgement, reparation or assistance, although the family has tried to contact the U.S. mission in Somalia.

The U.S. military often claims its lack of troops on the ground in countries where it is fighting mostly air wars makes it too difficult to interview witnesses or survivors of U.S. strikes to determine who exactly was killed and whether they were civilians (see Sarah KnuckeyOle SolvangJonathan Horowitz and Radhya Almutawakel post on Just Security). Although the U.S. government has not provided any reason for not making ex gratia payments in the contexts described here, officials may claim the lack of troop presence is also a challenge to providing them.

That’s not a good enough answer. Raqqa and Mosul, for example, were both accessible to U.S. personnel after the combat operations that took place there, and there were some U.S. troops on the ground. If the United States truly believed it could not spare U.S. personnel to investigate who was killed by its bombs and to acknowledge civilian victims, then how could the military expect to know what it had accomplished, the harmed it had caused, and whether victims should receive payments? More broadly, the U.S. military will be less likely to take adequate measures to avoid harming civilians in the future if it refuses to competently assess the outcome of its past operations. Nor are U.S. strategic interests served by killing civilians and then denying it, leaving behind bereft and destitute families to attest to what happened. As Rasha Badran, who lost most of her family in Raqqa but has received nothing to date from the U.S. government, told Amnesty International: “I don’t understand why they bombed us. Didn’t the surveillance planes see that we were civilian families?”

The Pentagon report on payments made is also misleading. Although it claims to document 611 “ex gratia payments,” it includes over 200 so-called “hero payments,” which are paid to “the surviving spouse or next of kin of host-nation defense or police personnel who were purposely killed by enemy forces while those personnel were supporting or defending U.S. or coalition forces.” These “hero payments” constitute more than $540,000 out of a total of $1,644,116 reportedly paid. Nearly a third of the total payments reported, then, are not ex gratia payments for damage caused by the U.S. military, but are made to members of the local population assisting U.S. combat operations — not necessarily civilians, and not those harmed by U.S. actions.

While it’s fine to report those payments, including them in a congressionally-mandated report on ex gratia payments to civilians harmed by U.S. lethal force lengthens the list and inflates its total, suggesting that DOD has provided far more assistance to civilian victims of U.S. firepower than it actually has. In fact, the U.S. military made only 71 “condolence payments” for death or injury to civilians in 2019. The vast majority of ex gratia payments – 336 — were for battle damage to property. Meanwhile, 559 Afghans were killed and 227 injured by “international military forces” in 2019, according to the United Nations Mission for Afghanistan. Ninety-six percent were the result of air strikes, which are carried out exclusively by the U.S. military. (The United States dropped more bombs on Afghanistan in 2019 than it had in nearly a decade, according to U.S. Air Forces Central Command.)

To be sure, this first report on ex gratia payments is one step in improving transparency around the U.S. response to the civilian harm its military operations cause. But payments to civilian survivors and their family members should be based on a policy that is consistent and coherent, acknowledging and doing far more to address the needs of all civilian victims of U.S. lethal force, wherever they may be. And the reporting should more accurately reflect its limited reach.

IMAGE: A picture taken on September 5, 2017 shows smoke billowing out following a coalition air strike in the western al-Daraiya neighborhood of the embattled northern Syrian city of Raqa. (Photo credit DELIL SOULEIMAN/AFP via Getty Images)

 

About the Author(s)

Daphne Eviatar

Director of the Security with Human Rights Program at Amnesty International USA She advocates for US compliance with international law in US national security policy. Member of the editorial board of Just Security. Follow her on Twitter (@deviatar).