The U.S. Military Often Kills Civilians, and Rarely Offers Compensation

(The Intercept) - In its final days in Afghanistan, the U.S. conducted a drone strike that killed 10 civilians in Kabul — seven of them children.

The U.S. Military Often Kills Civilians, and Rarely Offers Compensation

RUA MOATAZ KHADR kept her three children close as they huddled in a house full of strangers in Mosul, Iraq. Above her, the U.S.-led coalition rained down airstrikes as the battle against the Islamic State reached its heights in 2017. ISIS fighters had forced Khadr’s family from their home and into this building.

A bomb hit the house. Khadr and her two daughters were able to free themselves from the rubble that had fallen on them, but her 4-year-old son, Ahmed Yahya, was crushed to death. He was among the 9,000 to 11,000 civilians killed during the yearlong battle for Mosul.

Khadr, like most bombing victims in Iraq, has no idea which nation was responsible for the airstrike that killed her son. Was it an American aircraft, British, Dutch? “Even if I found out, what would I do?” she told The Intercept. “My son is gone. It won’t help to know or not know.” She has no hope that she will receive compensation for his loss.
In its final days in Afghanistan, the U.S. conducted a drone strike that killed 10 civilians in Kabul — seven of them children. Their deaths bring up a thorny question surrounding the frequent U.S. killing of civilians in the 9/11 wars: What would justice look like for the families of civilians who have been wrongfully killed?

The media attention generated by the Kabul strike has prompted a rare admission of guilt from the Pentagon and may ultimately lead to monetary compensation for the survivors. But byzantine laws in the U.S. make it all but impossible for foreigners to file for compensation if a relative was killed in combat — excluding the majority of wrongful deaths overseas. The U.S.-led anti-ISIS offensive is a useful example of this. Over four years after the battle for Mosul in 2017, the U.S. has not compensated the family of a single civilian killed.

The only hope for most survivors is a “sympathy” payment from the U.S. military that does not acknowledge responsibility for causing the deaths. But unsurprisingly, those payments are rare: None were issued in 2020. Meanwhile, U.S. allies involved in bombing campaigns usually hide behind the shield of joint operations to avoid taking responsibility for civilian deaths. The U.K. has gone even further, recently passing a law that limits the time period in which a civilian can file a claim. All of these systems create maze-like blocks for civilians hoping to get any form of justice for the deaths of loved ones killed by airstrikes.

In recent years, the U.S. and its European allies have decreased the number of ground troops deployed overseas in the so-called war on terror, turning instead to airstrikes, while their local partners carry out ground operations. This increasing reliance on aerial warfare, which renders nearly invisible the identity of the military force that kills a civilian, has made it all but impossible for civilians to get compensation for the loss of family members. While reparations for civilian harm can never replace a life, they are, at the very least, an acknowledgment that harm was done and a way to help support those who have lost deeply.

For instance, the U.S.-led coalition has carried out 34,781 airstrikes in Iraq and Syria since 2014, and the U.K.-based monitoring group Airwars estimates that coalition actions led to the deaths of between 8,317 and 13,190 civilians, of whom 3,715 have been identified. The coalition itself only acknowledges the deaths of 1,417 civilians. An Intercept review of public records shows that only one person whose family members were killed by a coalition airstrike in Iraq or Syria has received official compensation.

At an earlier stage of the 9/11 wars, the U.S. and its allies did pay compensation to civilians. By 2007, the U.S. had paid at least $32 million in compensation for civilians harmed in Iraq and Afghanistan, not including condolence payments. The U.K. paid over 20 million pounds in compensation claims for violations that occurred during the 2003-2009 British ground presence in Iraq.

But as the number of ground troops in these war zones has fallen, the modest stream of compensation payments was all but shut off.

Condolence Payments
In the U.S., the only way to pursue legal compensation is under the Foreign Claims Act. The law was established in World War II to compensate civilians harmed by U.S. military personnel. But the FCA forbids compensation for injury or death during combat. For example, in a 2006 incident, U.S. soldiers accidentally killed three children, ages 5, 16, and 18. As it was a noncombat scenario — soldiers accidentally fired mortars that killed the children — the U.S. provided $35,000 in compensation to a relative of the children. But without troops on the ground, most civilians do not know where to file a complaint. The Pentagon does have a website that provides email addresses to submit information on civilian casualties, but the website does not mention compensation — and, of course, someone needs web access to find the email addresses.

While compensation is largely inaccessible, the U.S. military sometimes issues condolence or “ex gratia” payments. These are not legal compensation or an admission of liability, and civilians cannot seek them out — the military issues them at the discretion of commanders. But in 2020, despite Congress approving a $3 million fund for ex gratia payments, the Pentagon did not issue a single payment. The Department of Defense claims that U.S. military forces killed 23 civilians in 2020, most of them in Afghanistan. According to Airwars, the number of civilian casualties was much higher, with a minimum of 102 fatalities.

Additionally, new Pentagon guidelines issued in 2020 make it clear that ex gratia payments should be used as a counterinsurgency tool to improve relations between U.S. troops and the local populace. In other words, conditions for making the payment do not revolve around whether there has been a wrongful death but rather whether the payment will help the U.S. “What we’ve seen in that recent interim policy is that the U.S. military really sees ex gratia pretty singularly as a counterterrorism tool,” says Annie Shiel, a senior adviser for the Center for Civilians in Conflict, or CIVIC. “This means that they have been used primarily in countries where the U.S. ground troops needed to engage with the local populace, which until recently included Afghanistan.”

During the so-called surge in 2007, the U.S. had more than 165,000 troops actively engaged in combat in Iraq, so there was ample reason at the time to make condolence payments. Now only 2,500 troops are stationed in Iraq, and they mostly stay in protected military bases, meaning that most Iraqi people do not get the chance to interact with them. As a result, U.S. soldiers are far more insulated from retaliatory attacks from bereaved communities. And that, in turn, gives military commanders less motivation to make sympathy payments when a U.S. or coalition airstrike goes wrong.

Over the past five years, while U.S. grounds troops were still in Afghanistan, the U.S. paid around $2 million in sympathy payments there. But in Iraq, where U.S. operations were primarily conducted by air, news reports suggest that only around 14 payments have been made since operations against ISIS began in 2014. In 2019, only six Iraqis received sympathy payments compared to the 605 payments issued in Afghanistan. In 2020, no sympathy payments were issued globally. Most ex gratia payments are small — usually between $2,500 and $5,000. One of the condolence payments issued in 2019 was only $131.

With ex gratia payments being distributed in line with its counterterrorism interests, U.S. policy offers no clear means for civilians whose families have been killed and whose homes have been destroyed in bombing campaigns to seek restitution. Not only is there no clear pathway for civilians seeking compensation, but also, as Shiel notes, “even internationally recognized NGOs and human rights organizations have struggled to identify the right point of contact to bring cases or to request ex gratia payments. So given that, it’s hard to imagine what it would be like to be a sole civilian in one of these countries already grieving from an unimaginable loss and then trying to figure out what to do next.”