Karrar Sabbar was at his job as an airport security guard in Karbala, Iraq, when he was killed by American airstrikes. Saleh Ahmed Mohammad al-Qaisi was driving near a health center in Al Bayda, Yemen after visiting his family, when he was inexplicably targeted and killed by a U.S. drone. Eighteen-year-old Nurto Kusow Omar Abukar was in her home in Jilib, Somalia when the American missiles struck, killing her and seriously injuring her young sisters and grandmother.

These are just a few of the civilians behind the numbers in the latest Department of Defense (DoD) declaration to Congress on civilian casualties. The annual report, required by Congress under Section 1057 of the 2018 National Defense Authorization Act (NDAA), covers civilian casualties — deaths and injuries — that occurred during the prior year. Daniel Mahanty, Rita Siemion, Rahma Hussein, and Alex Moorehead covered the reports for 2019, 2018, and 2017 in previous Just Security articles.

Our organizations, Center for Civilians in Conflict (CIVIC) and Airwars, welcome the release of this latest report, which is an essential tool for transparency regarding U.S. operations that harm civilians, and one that we hope other countries will emulate. But, disappointingly, the report for 2020 — the first to come out of the Biden administration — adds to the legacy of unrecognized harm by, once again, showing significant undercounting of civilian casualties. The report also indicates that the DoD has failed to offer amends to any civilian victims and family members in 2020, despite explicit congressional funding and authorization to do so.

Undercounting Civilian Casualties 

 For 2020 alone, the DoD reported that U.S. forces killed 23 civilians and injured 10 more in Afghanistan, Somalia, and Iraq. The report also retroactively confirmed an additional 63 civilian deaths and 22 injuries from the years 2017-2019, mostly in Syria and Yemen.

The good news is that these numbers generally reflect the NGO finding that civilian harm dropped significantly in 2020 as compared to previous years, largely the result of a reduced tempo of U.S. operations, particularly in urban areas. Even so, as with previous years they represent a gross official undercount. The most conservative public estimate of civilian fatalities caused by U.S. forces during 2020 across five countries was 102 civilian deaths, almost five times higher than DoD’s admission.

The undercounting of civilian casualties in Afghanistan in 2020 is particularly striking: while the Pentagon reports only 20 civilian deaths and 5 civilian injuries caused by U.S. actions last year, UNAMA — the respected UN mission in Afghanistan that the United States itself supports — reported that international forces, made up primarily of U.S. personnel, killed at least 89 civilians and injured 31 in 2020.

Additional discrepancies, reported by Airwars last week, include:

  • In Somalia, the DoD reported one civilian death from U.S. actions in 2020, whereas affected local communities and international monitors suggest a minimum of seven civilians killed.
  • In Iraq and Syria, the DoD reported one civilian death from U.S. actions in 2020, whereas local reporting suggests a minimum of six civilian deaths.

In Yemen, both the DoD and monitoring organizations are in agreement that there were no likely civilian deaths caused by U.S. actions last year. However, the DoD retroactively admitted only one historical civilian death in Yemen in 2019 — the death of Saleh, described above, the third U.S. admission of civilian harm in Yemen — whereas a recent field based investigation by Mwatana for Human Rights and Columbia Law School Human Rights Clinic documented at least 38 civilian deaths and 7 injuries from recent U.S. actions. (Read about Yemenis’ ongoing frustration with CENTCOM’s civilian harm review process here. And note: DoD acknowledged that each of the reported strikes did “appear to correspond to specific U.S. combat operations.”)

A number of factors contribute to these underestimates. A study by CIVIC and Columbia Law School Human Rights Clinic exploring U.S. military investigations into civilian harm found that the U.S. military tends to rely solely on its own internal records and sources when assessing civilian harm, and rarely seeks information from witnesses or survivors of attacks or by visiting the site of strikes. As Priyanka Motaparthy of Columbia noted in an informative Twitter thread: “In other words, they are using the same sources of data that led them to carry out the strike or raid in the first place.” It is also extremely difficult for civilians to report harm to the military.

These shortcomings are all the more frustrating given the extraordinary and dangerous lengths that NGOs themselves undertake to document and report civilian harm — conducting interviews and site visits that the U.S. military then promptly ignores.

What’s more, the DoD continues to apply an overly broad definition of “combatant,” resulting in the over-classification of civilians as combatants – as seen for example in the targeting of civilians working in drug labs in Afghanistan and likely countless other cases that may never be fully understood due to DoD secrecy around its basis for most strikes.

Finally, it is worth noting that DoD’s report appears to defy the congressional requirement to report on civilian casualties “that were confirmed, or reasonably suspected, to have resulted in civilian casualties” (emphasis added). By only reporting on civilian casualties that the Department has “assessed to have resulted in civilian casualties,” (emphasis added), the DoD ignores the large number of cases that are prematurely dismissed before investigation due to an overly high burden of proof. Daniel Mahanty, Rita Siemion, and Ryan Goodman have written about this problem here and here.

Zero Payments in 2020

To our extreme disappointment, the new report confirmed that DoD did not offer or make any ex gratia payments during 2020. Ex gratia payments are one form of “making amends,” the practice of recognizing and/or providing assistance to civilians that have been harmed in war.

The fact that DoD did not offer a single ex gratia payment in 2020 is especially outrageous given that Congress has repeatedly authorized funding for such payments, and given the large number of cases where the Department has confirmed civilian casualties and has the information necessary to contact survivors. In fact, using the $3 million appropriated for ex gratia annually, the DoD could offer ex gratia for every single civilian it confirms it killed or injured in 2020 and, at the highest payment amount of $15,000 per civilian authorized in the Department’s interim policy on ex gratia, have a whopping $2,505,000 leftover.

DoD’s report appears to defy the congressional requirement to report on civilian casualties “that were confirmed, or reasonably suspected, to have resulted in civilian casualties”

These realities suggest that what DoD lacks is not the capacity to make payments, but rather the will to do so. For example, in its response to Mwatana, CENTCOM acknowledged two incidents of civilian casualties but went on to say that “the command determined that condolence payments were not appropriate” and alluded to concerns that the payments might benefit terrorist organizations. Yet in the case of Karrar Sabbar, the young Iraqi security guard killed by a U.S. strike last year, no such concerns would seem to apply. Even so, CENTCOM chose not to offer a payment to his grieving family. Such is the case in many of the incidents of civilian harm confirmed by DoD in recent years, where much is known about the victims and their families thanks to local communities, investigators, and monitors.

These failures to offer payments reflect, in part, DoD’s frustrating view of ex gratia payments as a counterterrorism tool designed to “obtain friendly relations” with local populations rather than as a way to recognize the dignity of civilians and offer contrition for harm. As such, DoD has also demonstrated a bias toward offering ex gratia in places where the U.S. has a ground presence, and against such offers in the large number of places where the U.S. undertakes operations remotely. DoD and the broader U.S. government must find ways to enable the regular offer of ex gratia and other forms of amends even without the presence of U.S. ground forces to engage directly with affected populations.

The Department’s repeated failure to make offers of ex gratia should additionally invite serious scrutiny from Congress, which we hope will demand answers about the DoD’s continuing disregard for congressional intent. We also hope Congress will clarify that the purpose of ex gratia is not to instrumentalize grieving civilians, but rather to recognize and amend life-altering harm.

 Civilians Deserve Better

The failure both to accurately account and make amends for civilian harm is an insult to civilians already suffering unimaginable loss. The families of Karrar Sabbar, Saleh Ahmed Mohammad al-Qaisi, Nurto Kusow Omar Abukar, and so many others confirmed killed by U.S. actions in recent years deserve better.

The Biden administration must review why these undercounts remain so common, and re-assess cases where credible NGO and international agency reporting suggests that civilian harm did in fact occur. For civilian harm that the U.S. government does confirm, offers of ex gratia should be the default DoD position. Although offers of monetary assistance cannot bring back a loved one or compensate for irreversible loss, civilians deserve the option. The government should also establish a claims system that allows those who have been harmed by U.S. operations to independently pursue ex gratia payments or other amends if they so choose.

More broadly, the Biden administration needs to publicly recognize and address the toxic legacy of civilian harm from recent U.S. wars, and commit to a comprehensive and restorative amends framework for responding to civilian harm. That framework should establish the public acknowledgement of harm as a minimum requirement; and provide a range of options for supporting civilian victims according to their needs and preferences. This should include but not be limited to public and private apologies and explanation, ex gratia payments, livelihood assistance, and restoration of damaged public infrastructure.

President Biden has committed to ending the United States’ “forever wars.” As part of that commitment, his administration also has a real opportunity to reimagine the U.S. approach to civilian harm by recognizing the humanity of the civilians harmed by these conflicts. A good faith effort at an accurate official accounting must be the first step.



Photo credit: A picture taken on March 13, 2020 shows officials checking the Karbala airport in the Iraqi shrine city, one of the areas targeted by US military air strikes following the deaths of two Americans and a Briton in a rocket attack the previous night on a US base in Taji. The Pentagon says that its strike on the airport killed one civilian. (Mohammed Sawaf/AFP via Getty Images)