| 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 limitationsFor 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. |
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. She is currently based in Istanbul.