The National Defense Authorization Act (NDAA) signed into law last month extends the U.S. military’s ex gratia authority once again. For the next decade, up to $3 million per year will be allocated for the Pentagon to make payments to redress civilian harm in its operations. Such payments are offered ex gratia, meaning they are a gesture of sympathy rather than an acknowledgment of legal responsibility.
Whether the Department of Defense (DoD) will spend this $3 million remains to be seen. So far, DoD has made sparing use of its ex gratia authority under the NDAA, reporting no payments in 2020 and only one in 2021.
The Pentagon’s new Civilian Harm Mitigation and Response Action Plan (CHMR-AP) gives the military an opportunity to address this dismal track record. CHMR-AP Objective 8 states that DoD will “improve its ability to consistently and appropriately acknowledge and respond to civilian harm when it occurs and to treat those who are harmed with dignity and respect.”
Yet the Pentagon has undermined its own goals by taking the position that the CHMR-AP will not respond to civilian harm it has already confirmed as credible or reinvestigate allegations that were inappropriately dismissed. Others have already articulated on this site and in a recent Congressional letter why the Pentagon needs to change course to realize the CHMR-AP’s objectives.
Here, I want to focus on the stakes for the Pentagon if it continues to deny requests for amends for credible cases. When the Pentagon receives reports of civilian harm, it conducts credibility assessments to evaluate available evidence. If the military concludes it is “more likely than not” that civilian harm occurred, the report is considered credible. For the first time, I am publishing details of multiple requests for condolence payments that the Pentagon denied in 2021 – despite being deemed credible – which illustrate how broken current processes are and how urgently they need to change.
This November marked the six-year anniversary of the U.S.-led Coalition airstrike in Mosul, Iraq that took the lives of Emmad Jassim’s two young sons. Eight children in his extended family were killed altogether, including one infant born only two days prior. Eight additional family members were injured, and several still have ongoing medical needs.
In January 2017, another Coalition airstrike in Mosul destroyed the home of Rafi Al Iraqi, killing four members of his family and injuring his son, who has since undergone more than 30 medical procedures for a leg injury that has still not healed.
Emmad Jassim and Rafi Al Iraqi shared their stories with reporters from the New York Times and the LA Times. The military found these reports of civilian harm in the war against ISIS to be credible in both cases, though a spokesperson told the LA Times that condolence payments could only be offered “if we have sufficient information on victims, which we rarely are given.”
It took both families more than four years to connect with a lawyer who could liaise with the Coalition on their behalves. When they finally did so in the spring of 2021, I submitted condolence payment requests in their names and those of other Jassim family relatives using the military’s own Solatia Payee Information Sheet. Basim Razzo, an airstrike survivor and tireless advocate for other civilians harmed in U.S. operations, had already worked with them to fill out the paperwork. Although we were using a solatia form – the only official form in our possession – I expected the requests to be processed using the new ex gratia authority under the NDAA.
“The Combined Joint Task Force – Operation Inherent Resolve has received your request for compensation dated May 11, 2021. After careful consideration, your request is denied.”
Emmad Jassim and Rafi Al Iraqi waited almost five years for a response from the military, only to receive two sentences rejecting their requests without any explanation.
These letters contained no apology or recognition of the pain the Coalition’s actions had caused. They also referred to a request for compensation that did not exist, as I had deliberately avoided using this word, knowing the military views this term as a potential acknowledgment of legal responsibility. (The letters also got the date wrong for the request for Emmad Jassim’s family, which I had submitted on June 8, 2021.)
I would later learn that the Pentagon had sent an identical letter to lawyers for another Iraqi family in 2020 who had explicitly requested compensation in another credible case. It appears that the Coalition may have a form letter for rejections.
The email accompanying the letters described them as a “final determination.” I replied, asking on what process the determination was based and what constituted a “final” determination if no determination was provided previously. I also asked if there was an ability to appeal. I never received an answer.
In June 2022, my organization, the Zomia Center, launched a full-time program to advocate on behalf of civilians harmed in U.S. operations. In June and September 2022, I submitted new requests for condolence payments on behalf of other families in Mosul whose cases the Coalition had already deemed credible. Since then, I have received regular assurances from a military lawyer that the requests are being considered, but I have yet to receive an official response.
The delay from the Coalition is difficult to understand. In 2021, it took the military two months to deny the requests I submitted. This year, more than six months have passed without a decision.
Civilians harmed in U.S. operations deserve better than months waiting in limbo or a two-sentence rejection letter, but the Pentagon already knows this. The CHMR-AP explicitly identifies a need for the military to improve its ability to respond to civilian harm “consistently and appropriately” and treat impacted civilians “with dignity and respect.”
In the context of the CHMR-AP, the Pentagon should view new requests for condolence payments in such credible cases as low-hanging fruit in the effort to improve its response to civilian harm. DoD has publicly confirmed as credible some 344 civilian harm reports in the war against ISIS in Iraq and Syria and maintains a $3 million annual budget to redress harm. Yet the Pentagon’s official position appears to be that its improved response to civilian harm will not apply to civilian harm incidents already confirmed. Politico reported in October that the CHMR-AP “will not involve reopening past cases in which civilian casualties were confirmed but the department did not make amends to the victims’ families.”
I suspect that the military recognizes that sending more two-sentence rejection letters now will harm the credibility of a plan aimed at improving the Pentagon’s response to civilians. But the decision to instead leave families in limbo for months still calls into question the Pentagon’s commitment to a more consistent and appropriate response.
The Pentagon should seize the opportunity under the CHMR-AP to issue new guidance instructing combatant-commands to use the $3 million ex gratia authorization and offer condolence payments when they are requested in cases the Pentagon itself has deemed credible. DoD already has the authority to offer both monetary payments and medical assistance under interim regulations issued in 2020. But the responses my organization has received to date suggest that more explicit guidance is needed. The interim regulations leave plenty of room for the Office of the Under Secretary of Defense for Policy to issue new guidance at any time.
If the Pentagon instead maintains the position that the CHMR-AP will not respond to harm already acknowledged, it will create a two-tiered system in which hypothetical future civilians benefit from the CHMR-AP, but actual civilians harmed in the present have the door shut in their faces when they request redress.
The civilians who are approaching the Pentagon now requesting amends are the very people whose stories – painstakingly documented by reporters and advocates – led to the development and enactment of the CHMR-AP. Their cases may be in the past to the Pentagon, but for the families I represent, the harm is present. Lost loved ones, limbs, homes, livelihoods. Chronic pain, high medical bills. Trauma. Grief. If the Pentagon is willing to turn its back on these people, then its commitment to improving its response to civilian harm more broadly rings hollow.
Moreover, it is not possible for the military to develop a better response in a vacuum. The CHMR-AP describes a future in which “commanders … craft tailored responses, based on consultations with affected individuals and communities.” To achieve this objective, the Pentagon will need to begin those consultations now, testing and refining new institutional processes with civilians who have already been harmed. My organization and others that represent impacted families are ready to work with the Pentagon to shape these processes. The Pentagon should view requests for condolence payments or for new investigations as opportunities to begin to realize the CHMR-AP’s objectives.
For whom is the CHMR-AP if not for civilians already harmed by U.S. military operations? If the new plan is to have a meaningful impact, then it should address families making requests of the Pentagon now. A two-sentence rejection letter should not be the military’s last word to Emmad Jassim or Rafi Al Iraqi. The CHMR-AP offers DoD the chance to try to do right by them and so many others who have waited years for acknowledgment of their pain. A plan that leaves these families behind is both a missed opportunity and an abdication of moral responsibility.