When the US military was deployed to Afghanistan and Iraq, it had no plan for addressing civilian casualties despite following rules prohibiting disproportionate or deliberate attacks on civilians. Eventually, commanders in those theaters recognized they needed to change course, by acknowledging, investigating, and offering assistance to those harmed through ex-gratia monetary payments. Making amends for—and not ignoring—civilian losses caused by US operations was a hard lesson learned and one just recently recognized by Congress. For the first time, Section 8127 of the Consolidated Appropriations Act of 2014 allocates funding to the Pentagon to help civilians killed and injured as a result of US combat operations. This acknowledgement and funding for civilian harm presents the Pentagon with an opportunity to create a longstanding program that will help war victims far into the future.
What has always been a messy ad-hoc effort to dignify incidental civilian harm can now be a structured program, if authorized by Secretary of Defense Chuck Hagel. This is an important victory for civilian war victims and for the US commanders who for years took it upon themselves to offer civilians apologies, explanations, and assistance despite no legal obligation to do.
Why is this so important? The laws of war permit incidental harm to civilians and civilian objects as long as the harm is not excessive to the direct military advantage anticipated with the attack. But warring parties have no legal obligation to offer civilians apologies or help in the case of incidental loss, like death, injury, or property damage. So a family killed in the course of a proportionate attack on a legitimate military target, or a teenage passerby wounded in a sudden skirmish between opposing forces, or a farmer killed with a ricocheting bullet, is considered “collateral damage,” a phrase coined by the US military decades ago to define civilian losses from an operation. Amends—such as the ex gratia monetary payments that US commanders began offering in Iraq and Afghanistan—fill a void to recognize losses civilians suffer in lawful operations.
Section 8127 gives the United States an opportunity to begin an organized amends program that is both humane and strategic, matching Washington’s rhetoric for responsible use of force with practical actions to dignify tragic civilian losses
What does Section 8127 mean?
Systematically addressing civilian harm caused by US combat operations necessitates a standing amends program with sufficient funding to handle all valid claims and clear guidance to commanders and their judge advocates.
The US military has sometimes offered monetary payments, called “solatia” to civilians for losses in every major combat operation since the Korean War as civilians harmed during combat operations are ineligible under the 1942 Foreign Claims Act (FCA). The FCA compensates foreign nationals for death, injury, and property damage caused by noncombat activities of US. Recent practice of the solatia and condolence payment programs in Iraq and Afghanistan however, shows the flaws of an ad hoc program. These programs were initially not approved in those theaters as a staff judge advocate decided there was no “prior local custom” for solatia even though such practices are culturally expected in Iraq and Afghanistan. This decision created anger amongst the local population who were being turned away by commanders without having their grievances addressed. And when such programs were eventually authorized they lacked proper administrative rules leaving officers implementing the programs without guidance on adjudicating claims. My organization’s research showed that this ad hoc implementation created tensions in communities when some brigades paid out claims, while others did not. The amends program did gradually improve. International forces in Afghanistan also began making some ex-gratia payments, albeit each troop-contributing nation had their own procedures and valuation metrics for harm. In 2010 NATO adopted non-binding guidelines for international forces to investigate and respond to civilian harm including by offering assistance for civilian harm.
But Congress now has given the Pentagon one part of that equation for a standing policy on January 17, 2014 to ameliorate the problems with the informal, ad hoc system. Section 8127—championed by Senator Patrick Leahy who has long advocated for war victims—allocates funding to the Pentagon to make amends to civilian victims of US combat operations and directs the Secretary of Defense to draft regulations to implement the program.
The Secretary can direct local military commanders to make ex gratia payments to a “foreign civilian recipient . . . determined by the local military commander to be friendly” to the US for “property damage, personal injury, or death that is incident to combat operations.” Thus civilian victims determined to be “friendly” (including victims of drone attacks) could qualify if the harm is found to be “incident[al] to combat operations” and are carried out within the appropriate legal authorities for use of force.
The law states that the Secretary of Defense can allocate funding at his discretion from the Pentagon budget for an “ex gratia payment” program. It directs that any payments made be based on “cultural appropriateness” and “prevailing economic conditions”—important instructions so that missteps aren’t made in one combat theater to another one where what is expected for losses may differ. Its important to highlight that payments based on “cultural appropriateness” is distinct from “according to local custom” required for solatia payments as the former is premised on whether monetary payment for such losses would be culturally accepted and the latter on whether there is existing practice for such payments.
The statute also instructs that payments may “not be considered an admission or acknowledgement of any legal obligation to compensate” for the harm. Here the law can be read to distinguish those cases where the harm is due to violations of international humanitarian or human rights law in which victims are entitled to full compensation under international or domestic law.
A written record of all such payments are to be kept and periodically reported to an “appropriate office” at the Pentagon, and legal advisors must advise local military commanders prior to making such payments. The law also requires the defense secretary to report to congressional defense committees on an annual basis the “number of types of cases considered, amounts offered, the response from ex-gratia payment recipients, and any recommended modifications to the program.” This reporting to Congress would be useful to learn how civilians are being helped, whether the sums are sufficient, and what more could be done to assist them.
Building an Office to Reduce Civilian Harm
Notably, the “appropriate office” at the Pentagon cited in the law, at which records are kept and payments reported, does not currently exist. In fact, there is no focal point even within the policy staff at the Pentagon committed to the issue of civilian harm resulting from America’s use of force. The Pentagon should seize this opportunity and create an office within the Office of the Secretary of Defense (OSD) dedicated not only to respond to civilian harm appropriately but also to prevent civilian harm in the first place.
Such an office or a policy-level position, with dedicated resources and mandate, could study lessons of past and current engagements, development and deployment of new weapons and tactics designed to diminish civilian harm once the fighting starts; ensure proper civilian damage estimates are conducted in targeting and combat damage assessments are made after kinetic operations so that tactics can continue to improve; maintain proper investigative and statistical data on civilian casualties; and ensure efficient amends procedures are in place for unintentional civilian harm.
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Congress has given the Pentagon an opportunity to turn a critical lesson of war into real practice: create a formal amends program with rules and guidance that helps civilian war victims. No amount of recognition or tangible assistance can compensate for the loss of a loved one, but it can help rebuild a lost home, pay for medical care, or simply show that the regret offered by US officials is sincere. The hard lessons of over a decade of war are too important to not translate into action for the future.