DOD’s New Ex Gratia Policy: What’s Right, What’s Wrong, and What’s Next

On June 22, the Department of Defense (DOD) issued an interim policy regulation for providing ex gratia payments to civilians harmed as a result of U.S. military operations. It provides procedural guidance to U.S. military commanders for issuing payments under an authority created by Section 1213 of last year’s National Defense Authorization Act (NDAA), including guidance on reporting and documentation, standard payment levels, and roles and responsibilities within the Pentagon and geographic combatant commands.

Financial remuneration can never replace the life of a loved one or remedy physical or psychological harm, and the offer of condolence payments should never be understood as an attempt to place a monetary value on life. Prevention of harm to civilians in war should always take precedence, and the U.S. government and its security partners should investigate all reports of civilian casualties whether or not an ex gratia payment is offered. Moreover, an ex gratia payment does not address or supplant formal accountability for any unlawful harm. At the same time, amends — to include ex gratia payments as well as other forms of acknowledgement, apology, and assistance — are an important way for parties to a conflict to express contrition and recognize the agency and dignity of civilian victims who are so often forgotten in war. The issuance of this regulation is a welcome step forward in institutionalizing the practice of making amends and recognizing the significant harm that occurs in military operations. However, it falls short by failing to properly recognize the human and moral value of addressing harm caused, instead framing condolence payments as a tool for countering terrorism or insurgency.

This post will provide a brief background on the practice of ex gratia payments, summarize the main elements and striking features of the interim regulation, and identify key gaps and concerns that should be addressed in a permanent policy. (For more background and useful analysis, please see the excellent series of posts on the same topic from Just Security contributor Joanna Naples Mitchell.)

A History of Ad Hoc Practice

In its post-9/11 wars, the United States has sometimes compensated civilians for conflict-related damages where determined to be culturally appropriate. Because the decision to provide condolence payments depends on individual commanders’ discretion, the practice of ex gratia payments has been ad-hoc and underutilized. For example, while the United States has regularly provided ex gratia to civilian victims of U.S. operations in Afghanistan, these payments have been rare in Iraq and Syria and non-existent in Libya, Somalia, and Yemen. Significant disparities have also existed between amends decisions and payment amounts across similar cases in the same country, making the process unpredictable and confusing for affected civilians. The rarity of these payments in the face of high levels of civilian harm has been all the more confounding in light of repeated and expanded authorization of ex gratia payments by Congress, including the authorization of funds for this purpose in Afghanistan in 2012 (under section 1201 of the 2012 NDAA); the expansion of payments to include Iraq in 2016 (under section 1211 of the 2016 NDAA); the expansion of payments to Syria in 2017 (under section 1211 of the 2017 NDAA); and further to Somalia, Libya, and Yemen in the 2018 NDAA.

Most recently, section 1213 of the 2020 NDAA authorized the use of $3 million per calendar year for ex gratia payments “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 new interim regulation implements this authority and will be replaced by a permanent policy by February 25, 2022.

What the Interim Policy Gets Right

The interim policy presents a number of opportunities to strengthen the U.S. response to incidents of civilian harm, including:

● Standardization and transparency regarding ex gratia authorities, procedures, and payment amounts. First and foremost, the very existence of a standardized regulation and the clarity it provides to commanders will hopefully serve to make the practice of disbursing ex gratia payments to civilians more common. Standardization around process and payment amounts also helps set expectations for civilians harmed in U.S. operations. Civilian survivors and their advocates will rightly balk at the low monetary threshold established by the regulation. Certainly the wealthiest nation in the world, with a military budget in excess of $720 billion, could afford to compensate survivors more than the cost of the munition that killed their loved ones or destroyed their home. Despite this significant flaw, providing transparent baseline figures in advance allows civilians and those who represent them to manage expectations, reducing the likelihood that a civilian victim will feel disappointed, embarrassed, or insulted, particularly if they have already endured a long and arduous process of embarking on a claim during a time of immeasurable loss.

● Recognition that ex gratia payments are but one of several important options for responding to civilian harm. Other available responses noted by the regulation include public acknowledgement of U.S. responsibility for the incident and the provision of medical care. CIVIC, where I work, and other humanitarian and human rights organizations encourage DOD to institutionalize these and other tools that constitute a comprehensive response in the forthcoming DOD policy on civilian harm.

● The application of the regulation to coalition and partnered environments. Both the authorizing law and interim regulation allow for the application of U.S. ex gratia funds to civilians harmed not only in U.S. military operations, but also operations undertaken by coalitions and partnered operations including and supporting the United States. In the past, varied and conflicting standards, policies, and domestic legislation regarding ex gratia compensation among coalition members have resulted in an unpredictable and confusing process for affected civilians seeking redress while suffering the loss of loved ones, their homes, and their livelihoods. The interim regulation could fill a significant gap in amends response in multinational coalitions and partnered operations. 

● The assessment of local circumstances. The interim regulation provides for combatant commanders to conduct regional or country-specific assessments of cultural appropriateness, economic conditions, and other factors relevant in developing a local amends program. If carried out properly, the assessment provides an opportunity for commanders to engage in an inclusive and consultative process that elevates the perspectives of the local civilians most affected by U.S. operations and, in doing so, craft procedures that are context-specific and respond to civilian needs.

What the Interim Policy Gets Dangerously Wrong

The most concerning features of the interim policy lie in its framing of condolence payments as a tool of war most useful for countering terrorism or insurgency, resulting in both explicit and implied limits around why, where, and to whom payments may be made. These include:

● Framing of ex gratia as a counterterrorism tool. According to the regulation, the explicit goal of the ex gratia authority is to “help authorized commanders obtain friendly relations with and the support of local populations where U.S. forces are operating.” When deciding whether to offer an ex gratia payment, commanders are encouraged to consider mission objectives as one of a number of relevant factors. Policies that prevent and address harm to civilians, including a comprehensive response to civilian harm incidents, do undoubtedly serve both the near-term operational and longer term strategic interests of the United States — when consistently applied. But acknowledging and attempting to address harm is and must always be an enduring moral end of amends policies in and of itself. To ensure that a comprehensive amends policy serves the broadest set of objectives possible, to include reflecting the underlying moral character of the country responsible for the harm, it should be framed in such a way that places the use of amends in the context of responsibility and accountability, without imposing narrow, mission-driven limits on its application.

● Eligibility exclusions:

  • “Friendly” to the United States. The regulation limits eligibility to civilians who are deemed to be “friendly to the United States,” a requirement mirrored in the authorizing NDAA provision. These requirements are likely part of a broader pattern of counterterrorism legislation and policy that seek to reduce the likelihood that U.S. funds contribute to terrorist financing abroad. However, a lack of clear guidance on the definition and determination of “friendly” is likely to disqualify deserving civilians.
  • Assumption of risk. The policy also excludes civilians who “assum(e) risks inherent in supporting military operations” and those who participate in hostilities, which could be a relatively large group given DOD’s already broad legal interpretation of “participation in hostilities” and the number of civilians who are harmed as a result of positive identification errors, in which they or their loved ones are mistakenly identified as enemy combatants. Commanders and legal advisors should develop an appropriate standard of practice in ex gratia determinations that gives civilians the benefit of the doubt in the absence of definitive information.

● Allusions to great power conflict and total war. The regulation also suggests that ex gratia payments will be “rare” during conventional combat operations, reflecting a broader and concerning trend away from civilian harm mitigation as a counterinsurgency strategy and towards preparation for great power conflict, where concern for civilian populations appears as an afterthought if at all. Even more alarming, the regulation specifies that “payments may not be offered to residents of a foreign locality or country where the population of the area as a whole is in a state of armed conflict or war against the United States.” This clause reflects the deeply problematic view that an entire civilian population, and not the fighting forces of a country or even armed groups, could be considered to be at war with the United States. Taken to its logical conclusion, the idea that the entire population of an area could be presumed to be in a state of conflict would undermine the fundamental international humanitarian law principles of distinction and proportionality, instead painting a picture of an unlawful “total war” in which all citizens are considered part of the war effort.

In both revising this policy and planning for great power conflict scenarios, DOD must make it abundantly clear that civilians are civilians, regardless of their nationality, political views, and the territories they inhabit.  

Recommendations for a Permanent Policy

The existence of a standardized ex gratia payment regulation is an essential step forward in recognizing and addressing the significant civilian harm that has resulted and will continue to result from U.S. military operations and those of its partners. Working with the State Department, combatant commanders can and should proceed without delay to conduct consultative assessments and develop theater-specific procedures to ensure that ex gratia payments are proactively offered to civilian victims or survivors. Combatant commanders should also issue local guidance for how civilians or their designated representatives can seek condolence payments if they believe they have been harmed as a result of U.S. or coalition operations. In the meantime, the issuance of an “interim” regulation in advance of a more permanent DOD Instruction also provides the rare opportunity to address its most glaring flaws and omissions.

The permanent policy should:

● Expand and clarify the intent of the policy to recognize the inherent and enduring moral value of acknowledging and responding to civilian harm across various types of operations and through a comprehensive range of responses, to include public statements of acknowledgement and apology, condolence payments, community assistance, lessons learned processes, future harm prevention, and, where applicable, formal accountability;

● Remove any prohibitions on ex gratia payments to civilians based on their nationality or location, including removing the assertion that an entire population could constitute an enemy of the United States;

● Emphasize the importance of civilian consultation, including close consultation with civilian victims and those representing them and a process to facilitate the process through video or phone where necessary for access and safety; and

● Clarify ex gratia payment and other amends policies for civilian harm caused by joint operations involving other government agencies, such as covert operations in Afghanistan involving both the U.S. military and the CIA.

As with any policy, the ultimate measure of effectiveness is implementation. With significant discretion afforded to commanders, the extent to which this regulation succeeds in responding to civilian harm will depend largely on the willingness of commanders to acknowledge the harm caused by their operations and to provide remedy.

Image: U.S. Defense Secretary Mark Esper (L) and Chairman of the Joint Chiefs of Staff General Mark A. Milley testify about the Defense department budget during a Senate Armed Services Committee hearing on Capitol Hill in Washington, DC, March 4, 2020. (Photo by SAUL LOEB/AFP via Getty Images)

 

About the Author(s)

Annie Shiel

Protection Innovation Fellow, Center for Civilians in Conflict (CIVIC). Research Program Manager, Stanford University. Follow her on Twitter (@annieshiel).