Where to Draw Line on Paying Damages in Iraq

Four months after his son lost an arm to an errant U.S. bomb, Latif Fendi Diwan approached the military seeking $10,000 in compensation. His plea was denied, he said, and the file he submitted bears a note in English reading “No responsible U.S. Army member available for verification of accident. No negligence established.”

Three months ago, Alwa Rashid Abdul approached the military seeking compensation after his car was destroyed during a gun battle between U.S. soldiers and Iraqi insurgents. In February, Abdul received $2,500 from a U.S. Army captain.

The difference between these two cases, say military lawyers, federal officials and independent observers, illustrates the confused system of compensation for deaths, injuries and losses in the U.S.-led war and occupation in Iraq.

“It’s pretty random which cases are approved,” said Sgt. Will Lewis, a 24-year military officer responsible for processing compensation claims in Baghdad.

Difficulties over compensation are stoking Iraqi resentment against the U.S. and they demonstrate what happens when the military moves from assault to occupation. Army lawyers say the applicable statutes are inadequate for Iraq; it is often unclear where combat begins and ends.

But some U.S. officials have accused the military of erecting obstacles to compensation because of a deep ambivalence about admitting responsibility.

“There are many instances when innocent victims were killed or injured because of military actions and the Pentagon did nothing to assist them or their families,” said Tim Rieser, aide to Sen. Patrick J. Leahy (D-Vt.), who sponsored legislation for funds to assist Iraqis injured in the war.

“The Pentagon is reluctant to establish a precedent of cash compensation for losses during a war.”

Military officials say that they pay more compensation than is required by federal and international laws and that more liberal distributions of funds may decrease the security of U.S. operations in Iraq.

Since May, the U.S. military has received 15,000 claims from Iraqis seeking compensation for injuries or damage caused by military activities, a military spokesman said. About 5,600 claims have been paid and 5,700 denied. Military officials said about $2.2 million had been handed out.

Some of those payments were authorized by the Foreign Claims Act, which established guidelines for compensation to foreign citizens injured by U.S. military negligence. The act, however, has strict limits: Injuries and damage sustained as a result of combat are not covered.

“The FCA is great in real combat situations. But it doesn’t work in Iraq,” said Maj. Thomas Travis, a military lawyer stationed in Iraq who reviews compensation claims.

“Here, it’s totally unclear where combat begins and ends.”

Travis and other military lawyers said their use of FCA funds was limited to clearly noncombat situations such as car accidents with U.S. military vehicles.

Travis recently reviewed the claim of a 6-year-old girl who lost an arm after she was hit by bullets fired by U.S. troops pursuing an attacker. Under the Foreign Claims Act, she is ineligible for compensation because most gunfire or bomb explosions are considered a combat activity, he said.

“The army only knows one way to use force, and it’s heavy- handed,” Travis said. “We need a new law that’s more flexible.”

In response to the FCA’s limitations, the military has authorized commanders to make goodwill payments to injured Iraqis. These payments, part of the Commander’s Emergency Response Program, draw on seized assets and other funds also used in the rebuilding of Iraq.

Army lawyers estimate that the amount of money handed out under the response program is 10 times the sum awarded under the FCA.

One lawyer reported receiving 150 to 200 death claims in six months and awarding payments under the Commander’s Emergency Response Program to 60% of them. Lawyers are authorized to recommend $2,500 for a single death, though commanders have increased awards to at least $11,000.

Commanders have discretion in approving or rejecting claims under the response program and are not guided by official criteria. There is no appeals process.

Critics say this system is too arbitrary. Iraqi lawyers and human rights activists say similar claims frequently achieve different outcomes.

Military observers agree.

“I’ve seen basically the same cases submitted, and one gets approved and the other you never hear about,” said Sgt. Lewis, the claims processor in Baghdad.

Army lawyers agree that similar cases may achieve different outcomes depending on the attitude of a particular commander or the available evidence.

One obstacle, observers say, is that the burden of proof lies with the victim.

“If the victim can’t identify the soldier who shot them, we can’t verify it happened,” Travis said. “Soldiers are supposed to file a report after each incident or accident, but they don’t want to stop for an ambush or don’t want to deal with repercussions, so they don’t file.”

Human rights advocates say the system is designed to be subjective.

“The commander on the spot is absolutely in charge, so the person responsible for the injury may also be responsible for investigating it and deciding on compensation,” said Sam Zia-Zarifi with Human Rights Watch, a U.S.-based advocacy group.

“The military is dedicated to saying this isn’t an admission of guilt, so they’ve designed it to be inherently arbitrary.”

Military officials, however, say discretion is necessary for security reasons.

Army officials cite the dangers troops face daily in Iraq as a severe limitation on their ability to investigate claims. They also say they are hesitant to provide cash to individuals who may use it to support insurgent attacks.

“We don’t want to inadvertently fund someone’s ability to buy a gun or a bomb,” said Capt. James Stamper, a military lawyer in Iraq.

In response to some of these criticisms, Sen. Leahy sponsored legislation, which Congress passed and President Bush signed, providing $10 million to aid innocent victims of the war in Iraq. The funds, to be administered by the U.S. Agency for International Development, will go to communities to help with medical costs and rebuilding efforts. The program will not include cash payments to victims.

The legislation, however, met strong opposition from the State and Defense departments, aides to Leahy say.

The two departments “came to us with concerns about setting a precedent of compensation for war victims,” said Rieser, who works for the Senate Appropriations Committee.

“The Pentagon tends to respond when something went terribly wrong, there’s anger building and a potential public relations problem they need to deal with,” Rieser said.

“But most victims of war today are innocent bystanders, and Sen. Leahy feels we need a policy based on objective criteria for assisting them.”

Other critics agree.

“A lot of the cases only get attention once the media finds them,” said Marla Ruzicka, a human rights activist in Iraq working with injured civilians.

A Defense Department official who spoke on condition of anonymity said, “Under a well-established principle of international law, nations are not liable to provide compensation for injuries or damage occurring during combat operations.

“In any conflict there are unintended casualties. But we are working to make all of Iraq a better place to live.”

However, critics say the current system sets a dangerous example for Iraqis.

“The best way to establish a rule of law in Iraq that citizens will respect is to demonstrate a fair and transparent system of justice,” said Zia-Zarifi of Human Rights Watch.

“This is too arbitrary. It sends the wrong message.”

Relatives of some victims argue that financial compensation is insufficient.

Hani Ghazi Kaabi’s brother, Mohammed, was shot and killed by U.S. troops during a confrontation with two soldiers. The clash occurred when he tried to enter the office where he worked as a government official in Sadr City, a large and impoverished area of Baghdad.

Kaabi said his brother was shot after he pushed a soldier in defense. The military said the man tried to grab the soldier’s gun.

The U.S. military offered $10,000 to the slain Iraqi’s family, but the Kaabis have refused it.

“We want the American soldiers who killed my brother brought to judgment,” Kaabi said.

Military lawyers agree that the amounts they offer frequently seem insufficient.

Capt. Stamper discussed a case in which a 14-year-old girl suffered burns over her entire body when a 500-gallon gas tank was hit by a U.S. bomb.

“How do you say $10,000 or even $25,000 is sufficient compensation?” Stamper asked.

“The people here are going to get the raw end of the deal for a long time.”