Civil liability for violations of IHL: are the US and UK moving in opposite directions?

On 25 August 2022 the US Department of Defense published its Civilian Harm Mitigation and Response Action Plan (CHMR-AP), outlining a major three-year programme of institutional change in how the US deals with civilian harm occasioned by military operations. The plan was ordered by Secretary of Defense Lloyd Austin in January following the release of information, in the New York Times and elsewhere, detailing patterns of failure in the Pentagon’s investigation of, and response to, thousands of civilian casualties from US operations in Iraq, Syria and Afghanistan.

The release of the CHMR-AP has been welcomed (see here and here), including by current and former US defense officials, but also met by some scepticism as to whether it will produce an effective improvement in civilian protection.

This post considers just one – elsewhere unremarked – aspect of the new Plan, which is the extent to which it signals a departure from the long-held policy of the US not to accept liability for civilian harm caused as a result of violations of international humanitarian law (IHL). If so, this would indicate a move towards greater compliance with the UN Basic Principles on the Right to a Remedy and Reparation but an opposite direction of travel to that in the UK, which has in recent years made a large number of awards to compensate civilians in Iraq and Afghanistan for death, injury, arbitrary detention or damage to property but which is now taking steps to limit its liability.

US payments for civilian harm

Claims for damages abroad arising from negligent or wrongful acts or omissions by US service personnel are governed by the Foreign Claims Act (10 U.S.C. §2734-2736). Its application to civilian harm cases is constrained, however, both by a combat activities exception and by provisions relating to the affiliation of the claimant. The damage, personal injury or death to which the claim relates must have occurred outside the US and be caused by, or incident to, non-combat activities of the US military. Moreover, a claimant must be a national of a country that is (i) not at war with the US and (ii) not an ally of any country at war with the US (or, if such circumstances apply, the claimant must have been determined to be ‘friendly to the United States’).

Where US payments have been made for civilians harmed in relation to hostilities in Afghanistan, Iraq or other theatres, they have been ex gratia, mainly made under the authority of the National Defense Authorization Act (NDAA). (Widely known as ‘condolence’ payments, they have in the main supplemented the practice of ‘solatia’ payments made for harm to the civilian population where it was deemed local custom to do so.) US Army guidelines for the Commanders’ Emergency Response Program (CERP) explained: ‘Condolence payments are different from claims and are not an admission of fault by the USG. It is crucial to remember that when a commander uses CERP funds, it is not an acknowledgement of any moral or legal responsibility for someone’s death, injury or damaged property. Condolence payments are symbolic gestures and are not paid to compensate someone for a loss.’

The 2020 interim regulations for condolence payments accordingly lay down that payments should not be ‘construed or considered as an admission or an acknowledgment of any legal obligations to provide compensation, payment or reparations’. (For the further avoidance of doubt, the regulations were amended in 2021 to replace any references to ‘claims’ and ‘claimants’ with ‘requests’ and ‘recipients’.) 

The mutual application of these provisions can lead to apparently perverse outcomes. A foreign national abroad whose car was hit by a US military vehicle in a traffic accident might successfully claim compensation under the Foreign Claims Act, which has an upper limit of USD 100,000 per claim. Yet when Bassim Razzo’s family compound in Iraq was mistakenly destroyed in 2015 by a Coalition airstrike, with the loss of his wife, daughter, brother and nephew, he was offered the capped sum of USD 15,000 according to the US condolence payment policy at the time (Mr Razzo refused the offer and was later awarded EUR 1 million by the Dutch government, whose aircraft had fired the munitions).

It has also prompted some inconsistent statements from senior defense officials. A DoD report into the US attack on an MSF hospital in Kunduz, Afghanistan in 2015 concluded that ‘personnel failed to comply with the rules of engagement and the law of armed conflict’ but only condolence payments were offered to 170 individuals and families affected. Yet a request for a condolence payment in another case of multiple confirmed civilian fatalities, this time in Syria, was turned down on the grounds that ‘US forces complied with the law of war’. In the case of the August 2021 Kabul drone strike which killed aid worker Zemari Ahmadi and nine of his family, the DoD concluded that the strike was an honest mistake and ‘not the result of negligence’ or criminal behaviour or misconduct, but said that those affected would be offered condolence payments.

Responses to civilian harm in the CHMR-AP

Objective 8 of the new CHMR-AP concerns the response to civilian harm, ‘including through, but not limited to, condolences and the public acknowledgement of harm’. Under phase 1, to be implemented in fiscal year 2023, the Under-Secretary of Defense for Policy is directed to update the interim regulations for condolence payments. Notably, the CHMR-AP states: ‘While condolence payments have been for the purpose of expressing condolences and not for the purpose of providing assistance, compensation, or relief, other authorities could be sought to achieve these ends’ (emphasis added).  Under phase 2 (FY2024), the DoD will then replace or supplement the interim regulations ‘with comprehensive and enduring DoD policy regulations that address the full range of legally available options to acknowledge and respond to civilian harm’.

A word of caution may be necessary to avoid reading too much into these statements. A footnote to the introduction contains the general disclaimer: ‘Nothing in this plan is intended to suggest that existing DoD policies or practices are legally deficient or that the actions to be implemented pursuant to this plan are legally required, including under the law of war.’

However, it is precisely the care with which the US has previously eschewed the word ‘compensation’ and avoided discussion of legal accountability which now makes the inclusion of such terms in the CHMR-AP potentially significant. While explaining the ultimate purpose of civilian harm mitigation in strategic military terms (as well as a ‘moral imperative’), the introduction also explains that ‘the CHMR-AP will enhance DoD’s ability to identify instances where institutional or individual accountability may be appropriate for violations of DoD CHMR policies and applicable law’.

If the DoD is considering recognizing the need to award compensation in certain civilian harm cases, how would it be done? The emphasis in the CHMR-AP on identification of available financial authorities suggests that compensation may be paid under discretionary funds available to combatant commanders (rather than, say, through an amendment to the Foreign Claims Act). But the CHMR-AP emphasizes that one of the ‘fundamental purposes’ of the response to civilian harm is ‘helping to address the direct impacts experienced’ and it appears to recognize, at least implicitly, the need for an adequate response when significant civilian harm has been caused by a violation of IHL and a payment under the ex gratia policy is clearly inappropriate.

In its statement of policy on the draft NDAA for fiscal year 2023, the Biden administration ‘anticipates a robust effort to implement the CHMR-AP and to develop significant new policies, procedures, and practices, related to civilian harm mitigation and response’. Meanwhile, both the Ceasefire Centre for Civilian Rights and the Zomia Center are advising Iraqi civilians harmed in Coalition military operations on obtaining redress.

UK compensation payments and efforts to limit liability

Under the CHMRAP the US DoD also undertakes to ‘Incorporate CHMR into security cooperation and operations with allies and partners’. In recent years the most significant military ally, both within and outside of NATO operations, has been the UK.

In contrast to the US’ exclusive use of ex gratia payments, the UK has paid some £32 million in compensation in a total of over 6,600 cases of civilian harm in Iraq and Afghanistan (as detailed in a recent report I co-authored for Ceasefire which compares the reparations policies of seven militarily-active states). This includes cases where the UK has formally accepted that a violation of IHL or human rights law occurred, cases where significant compensation was paid in out-of-court settlements without any admission of liability, and also cases where ex gratia payments were made without a formal determination of responsibility (the UK Ministry of Defence uses the term ‘compensation’ to refer collectively to all these types of case). Following the close of Operation Herrick in Afghanistan, the UK Treasury authority to make ex gratia payments in cases of civilian harm expired and has not been renewed. Public liability payments have, however, continued. As recently as 2020-21, 417 cases of arbitrary detention and mistreatment of civilians in Iraq were settled out of court (and subject to a confidentiality agreement). It is possible that further awards will be made in future if claims follow from the outcome of R (Saifullah) v Secretary of State for Defence, a judicial review pending before the High Court concerning the adequacy of investigations into alleged extra-judicial killings by UK special forces in Afghanistan.

In order to limit its future exposure to such liability, the UK government has sought to legislate. The Overseas Operations (Service Personnel and Veterans) Act 2022 created a new absolute limitation period of six years on claims in tort or under the Human Rights Act for personal injury or death in relation to overseas military operations. Clause 14 of the Bill of Rights Bill introduced to Parliament in June then sought to curtail completely the ability to make a claim in respect of the UK’s military operations overseas under human rights law (under which most claims have been made). Although the Bill was shelved by the short-lived Truss government, the recent reinstatement of the bill’s cheerleader Dominic Raab as Justice Secretary suggests that the proposals will return too, in one form or another.

If the UK does continue its efforts it will be digging itself into the same hole from which the US is only now trying to extricate itself. The lessons of two decades of high intensity joint military operations in Afghanistan, Iraq and Syria teach that civilians will be harmed and that many of the facts will come out (nowadays sooner rather than later). Some civilian harm may be incidental to lawful attacks on military objectives and in such cases civilian victims can be assisted under a suitable ex gratia policy. But in other – potentially more serious – cases, civilian harm may be caused by a violation of IHL, including by conduct, such as a failure to take all feasible precautions in attack, which does not pass the criminal threshold but may well constitute negligence under domestic law. The need to deal effectively with a potentially large number of all these types of cases, and to discharge civilian victims from the excessive burden of proving civil liability without access to military data, has led Ceasefire to propose in the UK context the establishment of a Civilian Harm Compensation Scheme (complementing the existing Armed Forces Compensation Scheme).

But to attempt to exclude a priori civilian victims of IHL violations from any redress mechanism, as the UK appears intent on doing, would be both legally unjustifiable and – as the US is coming to realize – publicly unacceptable.