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Compensating Civilian Casualties: “I am sorry for your loss and I wish you well in a free Iraq”

Report by Jonathan Tracy, J.D., LL.M. Prepared for the Carr Center for Human Rights Policy and the Center for Civilians in Conflict in 2008.

The US Foreign Claims Act (FCA) authorizes compensation awards to foreign nationals for death, injury, and damage to property from “noncombat activity or a negligent or wrongful act or omission” caused by US service members. The condolence payment program, separately, is part of the Commander’s Emergency Response Program fund and authorizes commanders to provide symbolic “gifts” for death, injury, or battle damage caused during US military combat operations. Both programs are ex gratia (an “act of grace”), meaning no law requires an award or payment. Yet, the American public, the Iraqi and Afghan people, and major segments of the U.S. military do not adequately understand these programs.

This report examines 506 claims filed by Afghan and Iraqi civilians against the US military for monetary aid for harm allegedly caused by U.S. forces. Tens of thousands of such claims have been filed in Afghanistan and Iraq; however, the 506 claims researched for this report represent the only files released by the US government to date. The American Civil Liberties Union (ACLU) received these documents pursuant to a Freedom of Information Act (FOIA) request.

The cases examined indicate that the FCA and the condolence payment program are not being utilized appropriately. If steps are taken to improve these programs, the military will be better able to respond to civilian harm and better meet its strategic objectives. Military doctrine and training properly stresses the need to limit civilian casualties. A fair and equitable FCA system and condolence payment program will help ameliorate animosity toward the US military after civilian casualties occur.

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For media inquiries please contact:
Christopher Allbritton at +1 (917) 310-4785 or chris@civiliansinconflict.org