“A Tragic Mistake”: Understanding the Aftermath of the Kabul Drone Strike: Part III—Making Amends

Posted in: International Law

In my first post, I explained that 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 United States acknowledged its mistake and promised to assess the incident and its strike protocols more generally. In the second post, I described why reparations are not legally required and how ex gratia payments work for those victims able to access them. Such payments are becoming increasingly rare and are not designed to accept responsibility for harm done nor to fully compensate victims for their losses. In this final post, my co-author and I draw from our scholarly collaborations to suggest a robust approach to making amends for the victims of lawful harm imposed during drone strikes and other military uses of force. We believe that doing so benefits not only the victims, but also the harm doers in a number of meaningful ways.

Take for example, Zemari Ahmadi’s family. The drone strike killed multiple family members including the sole income earner, destroyed their home, and traumatized several surviving family members. They fear the revelation of Ahmadi’s U.S. connections will court Taliban retribution. The family is sinking into debt after borrowing money for burials and cannot afford gravestones. While lamenting the lack of a direct apology “despite repeated requests,” they have accepted the military’s public apology but wish for compensation, punishment for those responsible, and to leave Afghanistan.

We suggest that in cases like this one, as well as those that never make the headlines, the United States offer amends rather than ex gratia payments. Amends consist of the reparative measures undertaken by those that have caused harm. It is tempting to focus narrowly on financial and other material compensation as the key elements of amends. But while monetary amends are surely important, other mechanisms for making amends are also vital. These important reparative measures might consist of other material assistance, service, expressions of remorse or sympathy, apologies, accounts or other information about what happened, and promises of forbearance.

Given the impossibility of making people whole after they have lost an innocent family member to military action, what do victims want? Like Ahmadi’s relatives, family members often seek acknowledgment of their injury as well as an indication that the injurer accepts responsibility for that loss. Acknowledgment of that suffering and loss respects their dignity. It treats the injured as humans deserving of having their emotions known and responded to.

Acknowledgment needs to encompass all the harms—many of which are inflicted after the initial harmdoing. For instance, here, that would include not just the initial mistakes that led to the strike, but also the extended portrayal of the victim as a terrorist; the multi-week denial of significant civilian casualties, and the harm that flows from ISIS now knowing his status. Victims may also desire information. Relatives often want to know details surrounding the cause and nature of such deaths, including why the military chose a particular target, what precautions it took, and how, if at all, the military plans to change its behavior going forward to help make sense of the death. Ahmadi’s case is unusual in that the news investigation and Pentagon response provided Ahmadi’s family many of these details. The majority of drone strike victims do not get this sort of information or oftentimes any information at all. That’s a missed opportunity, since provision of information to a victim can convey respect for the victim and affirm his or her status. The very fact that the perpetrator thinks that the victim is due an explanation signals respect for the victim and tends to diminish the victim’s anger.

Another key element of amends is a promise by or commitment from the injurer not to cause similar harm in the future. Indeed, reform or behavioral change is often one of the goals of injured parties in dispute resolution. People want to be assured that the person or institution that caused their harm has learned from the experience and want steps to be taken so that the same thing does not happen to them or to others in the future. In Ahmadi’s case, again unusually and perhaps only because of the high-profile nature of the incident, the military has made such a promise. But will there be sufficient follow-through? Only time will tell.

Amends also ought to include offers of repair or compensation. Both the immediate victims and victimized communities may seek financial assistance to cope with the economic consequences of an injury. Like Ahmadi’s family, they may need short-term relief to provide for burial and other immediate costs associated with death. They may seek to be made whole: to receive money that would replace the financial contributions of the deceased or injured person. Alternatively, in light of collective suffering and hardship, they might want resources to facilitate rebuilding and promote economic opportunity in their community. The idea that harm repair is fundamental to amends was usefully articulated by Bishop Desmond Tutu as follows: “If you take my pen and say you are sorry, but don’t give me the pen back, nothing has happened.”

While the benefits of amends to the victims are fairly evident, offering amends also has the potential to further important military objectives, address soldiers’ moral injuries, and contribute to the professionalization of the military. From the perspective of the supplying state, making amends can assist with the state’s ultimate military objectives by helping to win the hearts and minds of the local population. In counterinsurgencies, gaining and maintaining the support of the local population is essential to the overall mission; such support increases information flow about the behavior and membership of the insurgency, while simultaneously slowing information flow to and recruitment by the insurgency. But recent empirical research on the effects of U.S. attempts to win hearts and minds has been mixed and strongly suggests that implementation matters a great deal. For instance, aid, one of the components of a counterinsurgency strategy, often fails to improve attitudes toward foreign military actors. In fact, poorly designed aid programs can increase, rather than ameliorate, grievances and reduce, rather than enhance, support for the state. In other words, amends, rather than the current approach of arbitrary and unsatisfying ex gratia payments, are better suited to winning hearts and minds.

And what about the military’s interests in those locations where the United States has no or few boots on the ground and is not interested in winning hearts and minds? While the last post indicated that the United States has narrowed justification for some ex gratia payments to hearts and minds, amends might also address the moral injury of individual soldiers responsible for civilian deaths. A “moral injury” is a violation of an individual’s belief and expectation that he and others will behave in a just and ethical manner. Killing civilians, even if done lawfully or accidentally, may create a significant moral injury by transgressing fundamental personal beliefs such as: “the world is just”; “people get what they deserve”; military service “creates a better world”; and killing innocents is wrong. Soldiers are particularly at risk for moral injuries in non-traditional conflicts where distinguishing combatants and civilians is difficult. Moral injuries can have a devastating impact on individuals—they may conclude their behavior is “immoral, irredeemable, and unrepairable” or more generally that the world itself is immoral. Such soldiers may experience extreme shame and guilt, with consequences including alcohol and drug abuse, domestic violence, as well as suicide.

Making amends can help soldiers with self-forgiveness and feelings of moral repair. Amends can help them feel that justice has been balanced and reaffirms values that the individual holds dear—values related to respect for humanity, honorable military service, or the protection of innocent civilians—which can enable individuals to reconcile their role in having caused harm with their own sense of positive self-regard.

Lastly, amends can also reinforce military professionalism. Part of what constitutes modern military professionalism is a belief that military careers are honorable and that the moral underpinning of soldiers’ killings distinguishes their acts from “mere butchery.” In order to maintain this worldview, soldiers must believe that their rules are rooted in an ethical humanity and a culture of civilian protection. Amends might be viewed as minimizing the effects of warfare on civilians when the population cannot be wholly spared from military operations. In this sense, amends could be characterized as an ex post protection to add to the existing range of mostly ex ante protections of civilians. Moreover, making amends could signal to soldiers that their institution behaves, not just legally, but also with honor and compassion. They could distinguish themselves from murderous thugs, because they and their institutions recognize the impact of their behavior on innocent parties and take significant action to redress it. Responses to civilian casualties could serve as a source of and reinforcement for the military’s shared morality by expiating the immorality of unlawful killings and the moral taint of lawful killings.

How might members of the military—those who might cause the relevant harms, who are members of the organization on whose behalf any response is offered, or who might have to implement that response—react to the notion of making amends? Our empirical research has revealed some intriguing patterns. We found, for example, that for most surveyed service members the lawfulness of harm caused to civilians did not preclude their feelings of remorse. Nor did they see the lawfulness of the harm-causing acts as a barrier to offering a response. This was true across all participants, for those service members who had served in combat zones, and for those service members who had seen or been involved in situations involving the death of one or more innocent victims. Indeed, rejection of legality as a barrier increased as service members had more experience with the deaths of innocent parties.

We also found substantial support for various aspects of amends—particularly for apologies and policy review in the aftermath of lawful harm. In contrast, service members tended to see a typical relatively low dollar ex gratia payment as an insufficient response to lawful harm. Service members also indicated their own desire for various aspects of amends, including understanding, apologies, providing explanations, forgiveness, and interaction with the victim’s family. While some service members expressed no desire for each of these components of amends, most indicated some desire and many indicated considerable desire for these aspects of amends.

These findings suggest that many members of the military might welcome, or at least not oppose, some forms of more robust amends making for lawful harm to civilians.

Comments are closed.