“A Tragic Mistake”: Understanding the Aftermath of the Kabul Drone Strike: Part II—Condolence and Solatia Payments

Posted in: Human Rights

As I explained in a prior post, the U.S. military authorized a drone strike intended to take out a terrorist transporting explosives to the Kabul airport. In fact, the U.S. mistakenly targeted an NGO worker killing him and nine other civilians, including seven children. After significant journalistic investigation and pushback, the U.S. acknowledged its mistake and promised to assess the incident and its strike protocols more generally. As for the victims, since the military is likely to conclude the strike was lawful but awful, the laws of war do not require reparations. Nor does domestic law. The Federal Tort Claims Act excludes combatant activities during times of war and claims arising out of acts in places not subject to U.S. sovereignty, and the Foreign Claims Act similarly excludes incidents arising from combat operations. So what is likely to happen for the victims? And for the many others victims who are not the subject of intense media scrutiny?

When the United States has killed or injured civilians during military operations in places like Afghanistan and Iraq – places where the United States has engaged in formally recognized armed conflict – the United States has not tended to directly acknowledge its causal responsibility nor to make promises of non-repetition. While the apology for targeting and killing Zemari Ahmadi was made to the public rather than directly to the family, it is more than most victims of U.S. drone strikes can expect. Since the inception of drone strikes, a sitting president has only publicly apologized for two. First, in January 2014, President Obama apologized for a drone strike in Pakistan that killed U.S. citizen Warren Weinstein and Italian aid worker Giovanni Lo Porto. In October 2015, a U.S. airstrike hit a Doctors Without Borders trauma hospital in Kunduz, Afghanistan, killing twenty-two people. President Obama apologized to Dr. Joanne Liu, the head of Doctors Without Borders and offered compensation to the families of those killed and injured.

Rather the United States often fails to acknowledge either its role in causing casualties or that those injured were innocent parties. For instance, in many locations where the United States does not acknowledge its military involvement, like Yemen or Somalia, it was only within the last few years that a voluntary payment program was even authorized to extend payments to them. Prior to that, the United States did not offer direct information, apology, or money to families in those places. On occasion, however, it may have filtered payments to the affected family through conflict victims support programs or other mechanisms laundered through their home government. For instance, many suspect the U.S. secretly funded the payment of $750,000 and 105 rifles to members of a Yemeni wedding party for a strike that killed 12 individuals and the payment of$ 55,000 to Yemeni families following an Easter weekend drone strike.

For those the United States is willing to acknowledge were injured by the U.S. military, it employs ex gratia practices for victims of armed conflict known as solatia or condolence payments. Solatia payments are discretionary payments given “in accordance with local custom as an expression of sympathy toward a victim or his or her family.” Condolence payments are understood a bit more broadly as they “can be paid to express sympathy and to provide urgent humanitarian relief” to individual victims or to the relevant community. Like solatia payments, condolence payments do not admit fault by the United States nor do they acknowledge moral or legal responsibility of any kind. They differ from reparations or tort payments in that they are not designed to explicitly compensate someone for a loss.

So what happens in an ordinary, non-high-profile setting? When there are boots on the ground, soldiers may proactively seek out surviving family members following an operation, particularly when they want to maintain good relations with the local population. Sometimes they leave cards that explain how families can make claims. In other instances and probably much more commonly, the victims must act on their own accord to bring their claims. Such processes varied from location to location with U.S. Africa Command creating a web portal allowing individuals to submit allegations directly. In Iraq, for example, individuals could make claims at Civilian Military Action Centers located in various neighborhoods, an Iraqi Assistance Center in Baghdad, or brigade headquarters. For many families, their only avenue was as part of the military’s mass processing of claims, a procedure that requires extreme perseverance. It can be prohibitive for those who do not have safe passage or the resources to travel.

Once a claim is submitted, a judge advocate reviews the evidence, including the claims card and the “significant activity reports” that are completed after a field incident, to determine whether the party is eligible for a Foreign Claims Act payment and, if not, whether a condolence payment is appropriate. The review process often takes approximately a month, though mass claim processing or high-profile claims can occasionally unfold substantially faster, with some determinations even made on the spot. If approved, payments can be made during personal visits or at Civil Military Operation Centers. Soldiers tasked with disbursing solatia or condolence payments receive guidance on the amount to be disbursed, the process to be followed, and their roles and responsibilities.

Of course, many requests for ex gratia payments are denied. The military has to conclude that those injured are in fact civilians and that the military is responsible for the harm to them. For instance, in locations where multiple forces are present, like a coalition, proving who is responsible for a particular strike can be an insurmountable hurdle. Similarly, the military may disagree with the victim or the victim’s family’s assessment of whether an individual was in fact a civilian. Civil society organizations keeping counts of civilian casualties from U.S. drone strikes conclude that the U.S. significantly underestimates counts and fails to provide sufficient information to assess its own conclusions.

Commitment to actually making condolence and solatia payments has varied significantly over time. Initial optimism about President Obama’s 2016 Executive Order directing agencies “as appropriate and consistent with mission objectives” to offer payments in “U.S. operations involving the use of force in armed conflict or in the exercise of the Nation’s inherent right of self-defense,” waned as the reality on the ground has been pretty lackluster. While the U.S. has frequently flouted its reporting requirements as to ex gratia payments making it difficult to assess the whole picture, what we do know is not promising. For instance, officials acknowledged for example that no payments were made for a March 2017 airstrike that killed at least 100 people during the battle for Mosul, the single biggest U.S.-linked civilian casualty incident in the war against the Islamic State. We do know that in 2019, the military made 71 payments in Iraq and Afghanistan but none were reported for Syria, Yemen, Somalia, or Libya despite likely qualifying casualties. In 2020, no condolence payments were made despite the 3 million dollars authorized and the acknowledged 23 civilian deaths and 10 injuries in Afghanistan, Iraq, and Somalia that year. Perhaps 2020 Pentagon guidelines emphasizing the use of ex gratia payments as a counterinsurgency tool—as a way to maintain friendly relationships—is something the military views as unnecessary when there are no or few boots on the ground.

Given these shortcomings, in the final post, Jennifer Robbennolt and I will outline what we believe a robust amends policy would look like. In so doing, we discuss what an appropriate resolution would be for not just Zemari Ahmadi but the many others whose names we do not and may not ever know.

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