By Pesha Magid
Civilians are regularly killed by the USA in its numerous wars across the world. The families of these victims rarely receive compensation for their loss. In cases where some payment is made, these ‘condolence payments’ are small, are given without an acknowledgement of responsibility, and are mostly an effort to win civilian support for the US war.
Rua Moataz Khadr kept her three children close as they huddled in a house full of strangers in Mosul, Iraq. Above her, the US-led coalition rained down airstrikes as the battle against the Islamic State group reached its height in 2017. IS 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, but her four-year-old son, Ahmed Yahya, was crushed to death. He was among the between 9 000 and 11 000 civilians killed during the yearlong battle for Mosul. Khadr, like most bomb 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?’ Khadr 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 USA conducted a drone strike that killed ten civilians in Kabul – seven of them children. Their deaths bring up a thorny question surrounding the frequent US 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 prompted a rare admission of guilt from the Pentagon and may ultimately lead to monetary compensation for the survivors. But byzantine laws in the USA 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 US-led anti-IS offensive is a useful example of this. Over four years after the battle for Mosul in 2017, the USA has not compensated the family of a single civilian killed.
The only hope for most survivors is a ‘sympathy’ payment from the US military that does not acknowledge responsibility for causing the deaths. Unsurprisingly, those payments are rare; none were issued in 2020. Meanwhile, US allies involved in bombing campaigns usually hide behind the shield of joint operations to avoid taking responsibility for civilian deaths. The UK has gone 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 who hope to get some form of justice for the deaths of loved ones killed by airstrikes.
In recent years, the USA 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 the identity of the military force that kills a civilian nearly invisible, 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 US-led coalition has carried out 34 781 airstrikes in Iraq and Syria since 2014; the UK-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 USA and its allies did pay compensation to civilians. By 2007, the USA had paid at least USD32 million in compensation for civilians harmed in Iraq and Afghanistan, not including condolence payments. The UK 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 USA, 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 US military personnel. But the FCA forbids compensation for injury or death during combat. For example, in a 2006 incident, US soldiers accidentally killed three children, aged 5, 16, and 18. As it was a noncombat scenario – soldiers accidentally fired mortars that killed the children – the USA provided USD35 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 has a website that provides email addresses to submit information on civilian casualties, but the website does not mention compensation – and, of course, a person needs web access to find the email addresses.
While compensation is largely inaccessible, the US 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 USD3 million fund for ex gratia payments, the Pentagon did not issue a single payment. The Department of Defense claims that US military forces killed twenty-three 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 US 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 USA. ‘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 USA 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, US soldiers are more insulated from retaliatory attacks from bereaved communities. And that, in turn, gives military commanders less motivation to make sympathy payments when a US or coalition airstrike goes wrong.
Over the past five years, while US grounds troops were still in Afghanistan, the USA paid around USD2 million in sympathy payments there. But in Iraq, where US operations were primarily conducted by air, news reports suggest that only around fourteen 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 anywhere in the world. Most ex gratia payments are small – usually between USD2 500 and USD5 000. One of the condolence payments issued in 2019 was only USD131.
With ex gratia payments being distributed in line with its counterterrorism interests, US 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.’
Statute of limitations
For US European allies, the legal avenues to compensation vary. In the UK, claims follow the guidelines of the Geneva Conventions, under which one can only file a civil claim for wrongful death if the person can prove that the harm to civilians was disproportionate to the military gain from whatever operation killed them.
‘That basically means that unless it is an egregious case, it is very hard to prove that it was unlawful, and certainly, without access to the decision-making process or the decision-making documentation, it is very hard to prove,’ says Mark Lattimer of the Ceasefire Centre for Civilian Rights, an organisation that advocates for reparations for civilians. ‘That’s one of the reasons why successful cases – and there have been hundreds of successful cases – are all basically to do with abuses in detention,’ he adds. The detention cases occurred when UK ground forces were still fighting in Iraq. Once they limited their operations to bombings, civilians stopped having a route to compensation.
In late April, the UK further entrenched legal barriers to compensation, passing the Overseas Operations Act, a law that sets a hard six-year limit for anyone wishing to bring a civil claim against the UK armed forces for acts committed overseas. The act started a ticking clock for civilians who might have legitimate claims that they were unaware of. ‘The Overseas Operations Act is now basically an act to protect the government and the Ministry of Defense and the UK government from civil liability under the pretense of protecting veterans,’ says Lattimer.
The USA and many of its allies use coalition operations as an excuse to weasel out of responsibility for civilian deaths that occur during anti-IS operations in Iraq and Syria. An individual nation’s airstrikes are attributed to the entire coalition, but the coalition states that members often share intelligence and coordinate on airstrikes. This complicates establishing the chain of responsibility, and while the coalition may say there is joint responsibility for a strike, it has no mechanism for addressing the harm, leaving it up to individual member states to take responsibility. Sahr Muhammedally, who has worked for more than two decades for CIVIC and is the current head of its Middle East programme, remembers advising coalition members and the Pentagon to create a joint standard operating procedure in the lead-up to the war against IS. ‘I’m being very honest with you,’ she told The Intercept. ‘They said no. I mean the UK, Australia, France, everybody said no,’ she remembers.
The only public case in which a civilian received compensation for a coalition airstrike took place in the Netherlands after the government acknowledged that a Dutch pilot was responsible for a wrongful airstrike. In that case, the victim, Bassim Razzo, whose wife, daughter, brother, and nephew were killed as a result of a wrongful bombing near Mosul in 2015, was the subject of an in-depth New York Times investigation into civilian casualties during the coalition’s operations against IS. The investigation revealed that wrongful intelligence had led to the strike on Razzo’s house. Razzo initially was unable to secure a meeting with US officials, but after pressure from the New York Times, US officials met with him to issue an apology and offer a paltry USD15 000 ex gratia payment. Insulted, Razzo refused. The Netherlands, in contrast, gave Razzo almost one million Euros. However, while acknowledging that one of its pilots launched the strike, the Netherlands did not accept liability for the action and classified the compensation as a ‘voluntary offer’.
‘That was just because they didn’t want to create a precedent,’ says Liesbeth Zegveld, the lawyer who represented Razzo in the Netherlands. If he had gone to court, she says, ‘which he would have done, then they would have paid for his damages. They would have lost because…they bombed wrongfully with wrong information.’
Media pressure
But Razzo is the rare exception; in most cases, civilians like Khadr, whose son was killed in Mosul, remain in the dark, struggling with the aftermath of the death and destruction, with no idea who was responsible – and no compensation. Some nations release individual strike reports, but the information is often vague. Britain’s Royal Air Force is more transparent than many coalition members, and during operations against IS, it released reports detailing its actions. However, the British reports give nonspecific descriptions of airstrike locations, referring to areas such as ‘North Mosul’ or ‘South East Mosul’. When contacted by The Intercept, the UK’s Ministry of Defence declined to give exact location data for any of their strikes, stating, ‘As a matter of policy, the MOD does not release specific grid references of RAF airstrikes. Likewise, we do not routinely obtain the names or details of enemy or civilian casualties on the ground.’
A spokesperson of Operation Inherent Resolve, the US-led coalition’s anti-IS operations, said the coalition did not release specific locations of airstrikes. This makes it easy for nations that participated heavily in the bombing to claim that their strikes did not kill civilians. The UK, France, and Belgium have refused to acknowledge any civilian casualties during the battle for Mosul, a claim that experts find absurd. ‘You cannot bomb cities and towns without significant civilian harm; it’s just not possible, and any belligerent that claims otherwise is in complete denial and is representing an entirely false picture to their home populations,’ says Chris Woods, the director of Airwars.
Furthermore, member states of the coalition rarely investigate the civilian cost of their strikes. The UK struck 750 targets in Mosul alone during the anti-IS operations. Despite this, in 2017, at the height of the battle of Mosul, the UK shuttered the team it had established in 2010 to investigate crimes committed during the Iraq War. ‘As far as we are aware, the only team working on [civilian casualties] is the press office,’ says Lattimer. ‘They make statements, including claiming that approximately 3 000 IS fighters have been killed in Iraq by the RAF, but that not one civilian has been killed. Which, to anyone aware of the circumstances of the battle of Mosul, is a ridiculous claim.’
There have been several notable exceptions in which public pressure forced some coalition members to investigate civilian deaths. The USA acknowledges more deaths than most coalition actors, but that does not necessarily result in redress for civilians. ‘We know that they have verified many incidents,’ says Muhammedally. ‘But they have not paid out ex gratia payments to those people in Iraq, post-2014.’ For example, the USA took responsibility for carrying out a strike that killed between 105 and 141 civilians in the Mosul neighbourhood al-Jadidah in March 2017. But survivors there have not received compensation.
Dutch media discovered that the Netherlands was responsible for an airstrike that killed at least seventy civilians in the Iraqi town of Hawija in 2015. This caused a massive scandal in the Netherlands, with lawmakers forced to address the issue in parliament. The Netherlands announced a several million-Euro fund to reconstruct Hawija, but at least fifty civilians from the town are still actively seeking compensation. Zegveld, the Dutch lawyer, represents the civilians who were injured or lost relatives due to the Hawija strike. She is hopeful they will receive compensation, but believes the Dutch role in their plight would never have been public if not for media efforts.
‘That’s the sad situation, that no one takes responsibility for anything, and there’s no investigation into civilian casualties whatsoever,’ she says. ‘That’s exactly what the coalition is doing behind the veil of their coordinated attacks: Everyone is responsible and no one is responsible… There will be no investigation into facts whatsoever, let alone recognition of liability.’
The Hawija scandal was a large-scale disaster. But according to Woods of Airwars, ‘The great majority of civilian deaths in war occur in small-scale events of which there are a very large number. So one civilian killed here, two civilians killed there, very low-incident civilian harm, but which cumulatively accounts for the majority of civilian deaths over the duration of conflict.’
On 17 September, the USA acknowledged that its drone strike in Afghanistan had killed ten civilians, calling it a tragic mistake. This admission came after intense media scrutiny that cases like Khadr’s never receive. She has very few expectations that the killing of her son will receive such treatment. As far as she knows, no one has investigated the circumstances of his death, nor has anyone reached out to her. In all likelihood, no one ever will. Khadr knows this, noting, ‘Those who bomb don’t compensate’.
Pesha Magid has reported from Egypt, Iraq, Turkey and other countries on a range of topics that include conflict, politics, gender, and food. She has worked at Mada Masr, an independent news site in Cairo, and has been published in the Guardian, the New York Review of Books, Slate, Al-Monitor, and Quartz, among other publications.
11 October 2021
Source: amec.org.za
