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U.S. faces question of compensating victims of 'collateral damage'

U.S. not legally liable for damages in Iraq, but that doesn't mean civilians won't get help

Sunday, April 13, 2003

By Lillian Thomas, Post-Gazette Staff Writer

When a stray missile takes out homes and children or when a U.S. soldier fires on a vehicle full of civilians at a tense checkpoint, does the military have a system to compensate unintended victims for its mistakes?

An Iraqi woman screams as her wounded husband and son are wheeled into al-Kindi hospital in Baghdad last week. (Jerome Delay, Associated Press)

"The short answer is no," said Maj. Ted Wadsworth, a Department of Defense spokesman.

"While it's certainly regrettable that there's ever any unintended loss of life or damage to property, unfortunately that's the reality of war."

As long as damage to civilian life or property does not arise from violations of international law or generally accepted rules of combat, it is accepted as "collateral damage" that does not incur liability.

That does not mean all damage goes uncompensated.

The Pentagon has no formal system in place for compensation in the field, but commanders do have authority to take actions on the ground to aid victims.

Washington Post reporter William Branigin reported April 1 on an incident in which soldiers in the Army's 3rd Infantry Division fired on a vehicle heading toward a checkpoint that turned out to contain 15 civilians, 10 of whom were killed.

Medics gave the group 10 body bags, Branigin reported, and U.S. officials offered an unspecified amount of money to compensate them.

"In that instance what happened was a commander offered compensation. It wasn't accepted on the spot, and what happened afterward neither Bill nor I knows," said Branigin's editor, Ed Cody.

Wadsworth confirmed that commanders are authorized to help. "Commanders may render aid after death with transportation and handling of remains as the situation and their ability to do so allows." He said he was unaware of a policy regarding cash.

Mackubin Thomas Owens said such compensation took place in the Vietnam War when he was a Marine infantry platoon commander in 1968-69.

"If somebody was killed, I know that frequently the village elder might come to the military authority and ask for reparation," said Owens, associate dean and professor of strategy and force planning at the Naval War College in Rhode Island. It wasn't a formal system, he said, but something a commander could authorize.

Such compensation has no effect on the military stance on liability, said Yoram Dinstein, an Israeli specialist on international law.

"That's neither here nor there. It's just military policy to give military commanders on the ground petty cash to hand around, ex gratia. It's not to admit fault or guilt, it's just out of compassion," said Dinstein, a visiting professor of international law at the Naval War College.

Dinstein, who served in the Israeli military, said he was unaware of the practice by members of the military in countries other than the United States.

"It's typically American. It would not occur to anybody else. Americans are by nature do-gooders."

The "doctrine of double effect" offers justification for killing civilians in war, so long as their deaths are accidental.

Targeting a military establishment in the middle of a city is permissible, according to the doctrine, and civilian casualties are a foreseeable but accidental effect of such action. In such a case, the force that attacked would not be liable for civilian deaths.

That doctrine has been codified in an addition to the Geneva Conventions, a 1949 international treaty signed by most of the world's governments that covers protection of civilians; wounded, sick and shipwrecked military personnel; wounded military personnel on the battlefield; and prisoners of war.

The United States is not a signatory to the "Protocol Additional to the Geneva Conventions," which deals with the definition of military targets, among other things.

However, the U.S. accepts the part of the protocol pertaining to military targets and collateral damage, as do most nations, said Dinstein. As long as the force used against such a target would not be "excessive in relation to the direct military advantage anticipated," it is acceptable.

What about war reparations imposed on nations, from post-World War I Germany to Iraq after the first Gulf War?

There's a short answer to that one, too.

"They lost," said Owens. Reparations are often imposed on losers in war, particularly if they targeted specific populations and engaged in war conduct deemed to violate international standards.

After World War II, Dinstein said, "Japanese were prosecuted for war crimes. Does it mean not a single American committed a war crime?

"That's a rhetorical question. Of course [post-war reparations] depend on who comes out on top, and only those on top can impose law and order."

Though winners rarely pay reparations, they frequently end up paying. The United States will finance, directly or indirectly, the cost of the ravages of war in the form of humanitarian aid and administrative costs of running Iraq.

"The United States will be heavily involved in the rebuilding of a post-Saddam Hussein Iraq," said Pentagon spokesman Wadsworth. "There will be much work to do. The particular types of assistance that may be appropriate in Iraq are currently under review within the U.S. government."

Whether Iraqis will be able to file claims for damages related to specific incidents or simply be able to get more generalized aid is not clear.

There is precedent for paying as a result of incidents in which U.S. military actions killed civilians, said Frederick D. Barton, co-director of the Post-Conflict Reconstruction Project at Center for Strategic and International Studies in Washington, D.C., and a former deputy U.N. High Commissioner for Refugees.

The U.S. government has awarded compensation to civilians harmed by military operations including the accidental bombing of the Chinese Embassy in Belgrade in 1999, the 1998 accident in which a low-flying Marine Corps jet sliced through the wires of a cable car in Cavalese, Italy, and for the accidental downing of an Iran Air flight in 1988.

"The U.S. record is generally tied to clear mistakes," said Barton. Compensation has been paid "when we've made a mistake and it's been certified" by investigations after the incident. It's more common in accidental deaths that did not occur in the midst of combat.

Wadsworth said there is an "extensive statutory and regulatory scheme to provide assistance to individuals who suffer injury or other damages as a result of military activity not related to combat."

Most death and destruction during wartime, however, will not be compensated.

"Inevitably in war there is going to be friction, failures, mistakes," said Owens. "If there were any kind of formal liability, this would undermine legitimacy of military activities."


Lillian Thomas can be reached at lthomas@post-gazette.com or 412-263-3566.

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