The U.S. drone war remains cloaked in secrecy, and as a result, questions swirl around it. Who exactly can be targeted? When can a U.S. citizen be killed?
Another, perhaps less frequently asked question: What happens when innocent civilians are killed in drone strikes?
In February, during his confirmation process, CIA director John Brennan offered an unusually straightforward explanation: "Where possible, we also work with local governments to gather facts, and, if appropriate, provide condolence payments to families of those killed."
There’s little documentation of where and how such payments are being made. The government has released almost no information on civilian casualties sustained in drone strikes conducted by the CIA and the military in Pakistan, Yemen and Somalia. Officials maintain they have been "in the single digits" in recent years, while independent researchers put the total for the past decade in the hundreds.
Certainly, though, drone strikes and condolence payments make for a striking match: The technological apex of war combined with an age-old method of compensating loss.
Such condolence payments featured prominently in the wars in Iraq and Afghanistan. They are now embraced by many military commanders and by human rights advocates, some of whom are pushing for a system to govern what had been an ad hoc practice for most of the 20th Century: recognizing the dignity of life, even during war, and even with what might seem like a mere token acknowledgement.
The history of condolence payments » Condolence payments may be rooted in ancient custom, but they are a relatively recent addition to the terms and conduct of modern warfare. Neither U.S. nor international humanitarian law requires them, and they aren’t, in technical terms, an admission of wrongdoing.
In fact, the Army regulation on such payments (which are also called solatia) describes them as "an expression of sympathy toward a victim or his or her family," in keeping with local custom. According to Center for Civilians in Conflict, an advocacy organization, the U.S. tradition of such payments dates back to the Korean War.
Foreign civilians have long had some recourse for compensation through the Foreign Claims Act, which permitted payments for damages caused by U.S. troops.
But the law doesn’t cover anything that happens during active combat — a significant exception in situations where U.S. troops are on the ground, intermingled with civilian populations. The line between combat and non-combat isn’t always clear. And even when soldiers feel their actions were justified, it is often to their advantage to recognize the harm done.
"Under the law of war, you can kill civilians, as long as their deaths are proportional to immediate military gain," said Gary Solis, a professor at Georgetown Law. "But as a nation, we recognize it’s important to gain the trust of the people. As the complexion of war has changed, the significance of these payments has too."
Condolence payments came to be seen as a key part of the battle for "hearts and minds" in Iraq and Afghanistan. But their implementation began slowly, and was marred by inconsistency. The U.S., after pressure from military lawyers and other advocates, allowed payments fairly early on in the Iraq War. But in Afghanistan, they were not approved until 2005.
"It wasn’t always popular with the soldiers, who would say, ‘We’re at war,’" said retired General Arnold Gordon-Bray, who led the 2nd Brigade of the Army’s 82nd Airborne Division in the first months of the invasion of Iraq. "But I would say, ‘We are going to leave, and the only thing that’s going to remain is the perception of America.’"
Gordon-Bray described scraping together cash for informal payments before they were officially approved, and before Congress funded a cache of spending money for condolences, humanitarian assistance, and other "goodwill" projects. (In Afghanistan, the military continues to distinguish between those congressionally funded "condolence payments" and "solatia," which come out of a unit’s operating funds.)
Even once the payments were officially authorized, the policy for implementing them wasn’t clear or standardized and not all units paid them. For the local Iraqi population, there was often a lack of awareness about such payments and confusion about how to receive them.
Gordon-Bray said his team sometimes sought out surviving family members after a death. Soldiers also left cards behind after operations explaining how families could make claims. Other times, the onus was on the victims to identify the unit that had caused the damage, to collect evidence, and to bring it to the military’s attention.
A military lawyer who served early on in Iraq told Congress in 2009 he occasionally had to turn down claims for lack of funds. He also said "two Iraqis who suffered substantially the same harm in different areas of the city would be treated very differently depending on what office they went to inside Baghdad to file their claim. [The] lack of standard rules really caused a lot of heartache."
There is little public documentation of condolence payments, though some batches of claims have been released. The details in those claims are scant, but often revealing about the relationship between soldiers and civilians.
One record, obtained by the American Civil Liberties Union, authorizes $1000 for "a Solatia payment for a lady whose son was killed by coalition forces." He had been shot in downtown Kabul when troops fired to disperse a crowd. An email noted the mother had been given "a complete runaround" in tracking down compensation.Next Page >
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