Letter to NATO to Investigate Compensation for Civilian Casualties in Afghanistan

April 1, 2009

Secretary-General Jaap de Hoop Scheffer North Atlantic Treaty Organization

VIA FACSIMILE

His Excellency Nicolas Sarkozy

President of the French Republic

VIA FACSIMILE

Her Excellency Angela Merkel

Chancellor of the Federal Republic of Germany

Re: Compensation for Civilian Casualties and Other Losses

We write to express our concern for the continuing high levels of civilian casualties in Afghanistan and the absence of a coordinated approach by international military forces to provide assistance to civilian victims of the fighting. Many states with troops in Afghanistan recognize that prompt, adequate and equitable payments to civilians who have suffered loss is of great importance not only for the affected families, but for the message it sends the broader Afghan population and the Afghan government. A harmonized approach by the international forces present in Afghanistan is urgently needed.

2008 was the deadliest year for Afghan civilians since the US invasion in 2001. Militant groups and insurgents were responsible for the majority of civilian casualties throughout the year, often knowingly placing civilians at risk, including using them as human shields. International military forces¹  were also responsible for a significant number of civilian casualties. We recognize that international military forces have taken steps in recent months to reduce civilian casualties. However, high civilian casualties during operations by international military forces continue to the present. With the planned deployment of large numbers of additional international troops, there is even greater potential for this type of civilian harm in the future.

We urge that rules of engagement governing the escalation of force and used of airstrikes be reviewed and further tightened. The rules of engagement governing so-called night raids, which often use force re­sulting in unnecessary civilian loss of life and property should be tightened and civilian law enforcement personnel and methods should be used where possible. Greater transparency, oversight and accountabil­ity is needed for all operations, but particularly for the operations of special forces and other intelligence or paramilitary forces outside ISAF or OEF chains of command. President Hamid Karzai, the Afghan legislature, the Afghanistan Independent Human Rights Commission, civil society organizations and the United Nations have all voiced serious concern at the rising death toll among civilians. In particular, Afghan legislators threatened to suspend Parliament in February to protest

1 We use the phrase "international military forces" to refer to military forces operating under either an International Security Assis­tance Force (ISAF) or an Operation Enduring Freedom (OEF) mandate.

against civilian casualties. There is increasing public anger and resentment over civilian losses caused by international military forces and such feelings are magnified when harm is denied, investigations are not undertaken or no acknowledgement, apology or redress is provided.

At NATO's upcoming meeting on Afghanistan, we urge you to establish a unified  mechanism to appro­priately address civilian casualties and other losses. We note that commander of ISAF and US forces, General David McKiernan, has already asked for a review of the issue and for guidance to be provided to different international military forces operating in Afghanistan. We welcome this initiative and hope it will be the beginning of a new policy.

Obviously, our top concern is that civilian casualties and property damage be substantially reduced.  However, we recognize that when there are civilian losses, it is in everyone's interest that prompt and adequate payments are made to those harmed. Armed forces have a duty to minimize civilian suffering during military operations. When losses occur, even in the absence of violations of international humani­tarian law, civilians will be in need of assistance or redress.  This can take the form of prompt, appropri­ate and equitable "condolence payments,"²  transparent investigations into possible violations of inter­national humanitarian law, and non-monetary acknowledgement of the harm done, such as apologies.  The failure to undertake such action will only magnify the harm caused in the eyes of those affected, the Afghan population generally, and the Afghan government.

For these reasons, we strongly urge ISAF to create a unified, comprehensive mechanism for providing condolence payments to those who suffer losses due to the operations of international military forces.

A Flawed and Fractured System

In the vast majority of cases, Afghans receive nothing from international military forces when family members have been killed or injured, or property has been damaged or destroyed. Currently, there is no unified or systematic mechanism for providing condolence payments for damage or loss caused by military operations. Rather, the processes for dispensing condolence payments are opaque, ad hoc, and vary from nation to nation. The amount paid to an individual family for comparable loss has ranged from US$25,000 to a few hundred dollars to nothing, depending on the location and timing of the incident and the countries involved. Some countries provide payments for lost or requisitioned property without hesitation but balk at condolence payments for death or injury. Other countries provide condolence pay­ments for death or injury but not for property damage. Some countries offer apologies and condolence payments as soon as possible, while other countries responses are bogged down for weeks or months in investigative and procedural checks.

The primary reasons given for the absence of a unified system are that international military forces cannot agree on a standard procedure that satisfies them all, and that this is a decision to be taken by individual nations. This is not a sufficient explanation. When so much damage is being done and the stakes are so high, international militaries in Afghanistan have strong reasons to institute a coherent and standardized system. It is time to summon the political will to address this issue.

In the past, coordination of condolence payments was difficult as a practical matter because ISAF and OEF did not have a mechanism to collectively track information about civilian casualties. The ISAF-OEF civilian casualty tracking cell, created in late 2008, tracks compensation and follow-up and signifies a will­ingness to take this issue seriously. However, for this initiative to succeed, all international military forces

Payments by international militaries to war victims in Afghanistan are usually given without fault or liability. Because "compensation" is thought to imply legal liability, different ISAF member countries call these payments variously: "ex gratia" payments, "condolences", "sola­tium", "honor" payments, "battle damages", etc. For ease of reference, we refer to all types of payment generically as "condolence payments."

must cooperate in disclosing their information about civilian casualties or other loss and any condolence payments or other action taken.

Equitable Treatment and Accessibility

Afghan civilians who suffer loss as a result of military operations by international armed forces deserve equitable treatment, regardless of which troops were involved or where the operation took place.

Where condolence payments are available, many Afghans are unaware that such funds exist. Others face considerable logistical and bureaucratic obstacles in accessing the appropriate officials and making their claims.

A lack of transparency and accountability can make it difficult or impossible to identify the unit responsi­ble. For some countries, verification and approval procedures in the claims process are cumbersome and the nationality of the troops concerned will significantly impact on a claimant's prospects of obtaining compensation and the amount awarded.

Recommendations

There are concrete, immediate measures that can and should be taken to create and implement an im­proved system to address civilian casualties and property losses. These include:

1.            NATO should use its April summit to establish a centralized and unified condolence payments mechanism comprised of senior military staff, including from the Afghan National Security Forces (ANSF), and specialist civilians. In particular, NATO should:

• Coordinate and liaise closely with all ISAF, OEF and ANSF units and the ISAF civilian casualty tracking cell;
• Ensure that staff working to address civilian losses are easily accessible in all conflict-affected areas and that communities are made fully aware of the claims process;
• Develop clear, consistent rules on eligibility for condolence payments; and
• Ensure that such payments are sufficient and appropriate for the harm suffered.

2.            Governments and intergovernmental organizations should also work jointly with the Afghan government to ensure that civilian loss resulting from any operations by Afghan forces, militant groups or insurgents, promptly receive adequate condolence payments and other assistance. The Afghan government has mechanisms to provide such redress, but they are inconsistent, and most often fail to provide assistance for victims of incidents where international forces are not involved.

Greater efficiency might be achieved through a unified fund or mechanism that investigates and provides fair and adequate condolence payments for all civilian casualties, regardless of whether international or Afghan forces, insurgents or militant groups are most responsible for the loss. Alter­nately the existing Afghan government mechanisms should be reformed to ensure that all civilian loss receives redress, whether it is due to the actions of Afghan forces, insurgents, or other militant groups.

3.            If a unified mechanism cannot be established, at a minimum international military forces should harmonize their policies and practices to ensure standard, uniform means of addressing civilian casualties and other loss. There should be concerted efforts and a formal agreement by interna­

tional military forces, foreign donors and the Afghan government on condolence payments that adhere to the above principles. Any harmonized approach should include mechanisms for referring civilian claims and information relevant to identifying civilians to other ISAF member countries. It should also ensure that funds are available for all international military forces, whether by establish­ing a central fund that ISAF Regional Commands can draw upon, or other cooperative arrangements. All civilians harmed should receive similar assistance for similar injury, even if harmed by different member countries.

4.            International military forces should take a proactive approach when harm occurs. Rather than leaving follow-up to the ad hoc discretion of individual officers on the ground, it should be standard operating procedure following an incident for involved military units to establish who has been harmed and the type and extent of such harm. Where harm has occurred, armed forces should pro­vide an explanation for their actions and, where there is wrongdoing, make a full and formal apol­ogy. Victims should be informed about how to obtain condolence payments and assistance should be provided. The responsibility for making this system work should be with the relevant forces, not on those harmed, to initiate the condolence payments process. Wherever necessary and possible, outreach and condolence payments should take place through liaising with community elders. 

• 1 All states contributing troops to the ISAF or OEF mandates should work jointly to contribute to recent efforts to improve the tracking of civilian casualties and other losses. Contributing states should fully cooperate with recent efforts by the civilian casualty tracking cell to collect, monitor and analyze data on civilian casualties and other losses from the actions of international military forces. Part of this effort should include tracking whether condolence payments are provided in each inci­dent.
• 2 To ensure greater consistency of existing condolence payments mechanisms, a comprehensive training program for all relevant officials should be instituted. Training should involve external civilian specialists, with knowledge of Afghan communities and of appropriate means of responding to losses in a dignified and respectful way. To advance this goal, there should also be an attempt to develop and share best practices in the provision of condolence payments.

We appreciate your consideration and look forward to discussing this further.

Yours sincerely,

Dr. Sima Samar, Chairperson

Afghan Independent Human Rights Commission (AIHRC)

Sarah Holewinski, Executive Director

CIVIC - Campaign for Innocent Victims in Conflict

Brad Adams, Asia Director

Human Rights Watch

Matthew Waldman, Head of Policy for Afghanistan

Oxfam International

CC:         All Attendees of NATO Summit

Resources

Caught in Conflict:  Civilians and the International Security Strategy in Afghanistan April 2009, Matt Waldman; signatories: eleven international NGOs operating in Afghanistan, including Oxfam Interna­tional.

From Hope to Fear: An Afghan Perspective on Operations of Pro-Government Forces in Afghanistan,

December 2008, Afghanistan Independent Human Rights Commission (AIHRC) www.aihrc.org.af/2008_ Dec/PDF_Pro_G/Eng_Pro_G.pdf

Losing the People: The Costs and Consequences of Civilian Suffering in Afghanistan, February 2009, Campaign for Innocent Victims in Conflict (CIVIC) www.civicworldwide.org/afghan_report

Troops in Contact: Airstrikes and Civilian Casualties in Afghanistan, August 2008, Human Rights Watch

www.hrw.org/reports/2008/09/08/troops-contact-0