Academic journal article Chicago Journal of International Law

Collateral Damages: Domestic Monetary Compensation for Civilians in Asymmetric Conflict

Academic journal article Chicago Journal of International Law

Collateral Damages: Domestic Monetary Compensation for Civilians in Asymmetric Conflict

Article excerpt

"Services: Death of Wife / Qty: 1 / Unit Pnce: $2,500"

U.S. Government Purchase Order-Invoice-Voucher, Afghanistan, June 20051

"The death of any innocent person, let alone a young boy, is a terrible tragedy . . . but this does not justify imposing liability on the State and on the soldiers."

CC (Haifa) 94/14685 Estate of Abu Hatla v. The State of Israel (2004)2

I. Introduction

Twenty-first century armed conflicts often target non-state actors rather than another nation-state's army. In particular, asymmetric conflicts-by which I mean conflicts between belligerents whose relative military power or strategy differ significantly3-tend to move away from traditional battlefields and into heavily populated areas, causing more "collateral damage" to non-combatant civilians.4 Security forces may negligently cause incidental bodily injuries and property damages to civilians, for instance, in checkpoint shootings, drone attacks, riot control efforts, and even car accidents. This changing military landscape presses states to address the losses such warfare inflicts upon innocent civilians.5 This Article examines two civilian compensation models used in asymmetric conflicts-Israel-Palestine and U.S.-Iraq and Afghanistan. Notwithstanding the differences between the two conflicts, both share the characteristic of confronting non-state actors that operate from within civilian populations, often using them as a human shield.6 Furthermore, both involve military forces performing policing and quasi-military-rather than strictly military-roles, such as controlling volatile riots. By comparing the compensation paradigms applied in each conflict, I offer guidelines for designing programs to effectively address the harm modern-day conflict causes to civilians.

Traditionally, scholars examined compensation for armed conflict victims either through International Humanitarian Law (IHL) and Human Rights Law (HRL) in an ongoing conflict,7 or through Transitional Justice (TJ) in the aftermath of a conflict.8 These international law frameworks are called upon since states typically fail to address this issue themselves.9 However, IHL norms of armed conflict tolerate (and do not demand compensation for) a civilian harm as long as there were reasonable attempts to ensure that the distinction between civilians and combatants was upheld. These attempts are reasonable if civilians are not deliberately targeted, and as long as harm to civilians, when it does occur, is deemed proportional to military objectives.10 HRL, in turn, tends to target intentional, gross human rights violations, such as torture, rather than negligent acts,11 which are the focus of this Article. Because of the limitations of IHL and HRL in protecting civilians, the overall weakness of international tribunals in a world still committed to state sovereignty,12 and the general focus of TJ on post (rather than amid-) conflict,13 there is a gap in current international law scholarship regarding government accountability for negligent acts conducted in ongoing asymmetric conflicts. This Article thus explores the role of existing domestic compensation tools, such as military payments and tort lawsuits, in promoting accountability in asymmetric conflicts between democratic, rule-oflaw-adhering states and non-state actors.

In the U.S., the military provides payments to civilians injured in its operations in Iraq and Afghanistan in two ways: through an administrative program, governed by the Foreign Claims Act (FCA), and through solatia/ condolence payments.14 The FCA provides the U.S. military its primary tool to compensate local civilians for losses unrelated to combat operations, like car accidents caused by security forces. Claims according to the FCA are evaluated by Foreign Claims Commissions, composed of military officers, in a standardized bureaucratic process.15 Since 2003, the average payment according to the FCA for loss of life is $4,200.16 Alongside the FCA regime, the military also grants condolence payments: symbolic, ex gratia payments offered in claims deemed related to combat, in amounts typically no higher than $2,500 per person killed. …

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