Based on the Foreign Claims Act, inhabitants of foreign countries may request compensation for negligent or wrongful acts by U.S. forces that result in death, injury or loss of property. Payments are not authorized for damage, injury or death that results from combat activities of U.S. forces. As such, claims before May 1 fall under the so called “combat exclusion,” as do claims after May 1 related to combat.
By the U.S. military’s own admission, what defines combat in Iraq after May 1 is not always clear. In August 2003, a coalition official tried to explain the parameters at a background briefing for the press:
We’re still in the middle of combat operations. So there’s a presumption that it’s not combat, but if the facts indicate otherwise, it still could be included as a combat activity. Like if you had a checkpoint set up and someone runs the checkpoint, that would be a combat claim in that instance...
If, in the course of combat activity, there was a reasonable act by one of our soldiers in identifying a target, but upon reflection, it turns out that that was a shot that we all wish could have been taken back, that would probably be subject to the combat exclusion and be excluded as a claim...
However, for those instances where we believe—or our commander believes that there was either a wrongful act by a soldier or a violation of the rules of engagement, those matters are typically investigated. They are either investigated by administrative investigation appointed by the commander, or by military law enforcement authorities, depending upon the facts of the particular case.102
In an interview with Human Rights Watch, JAG and CPA officials said what defined combat in Iraq was a “gray area.” Many of the cases, said Australian Col. Mike Kelly, are “not susceptible to easy dismissal or easy payment.”103
According to the JAG, compensation claims are reviewed by Foreign Claims Commissions. Up to the brigade level, a one-member commission has authority to give up to $2,500 and, up the division level, $15,000. On the coalition level, a three-member commission can give up to $50,000. Claims above that go to the U.S. Army Claims Service.
In addition, commanders can give up to $2,500 for what is called a “gratuitous payment.” Such money does not require a ruling and implies no liability on the part of the coalition. As one officer explained, “we just call the brigade to see if the claim is accurate. If they say `yeah, we made a mistake,’ then we pay up to $2,500 on the spot.”104
Iraqis can submit claims in a number of places in Baghdad. First, there are twelve Civilian Military Action Centers, known as CMACs, in the various neighborhoods, intended to interact with the local population. A CPA office in Baghdad also has an Iraqi Assistance Center where people can file claims. Individuals may also go directly to brigade headquarters, which have retained Iraqi lawyers to help process claims.
The claims review process takes approximately one month. If a claim is denied, individuals may resubmit their request if additional evidence is provided.
In response to a request from Human Rights Watch, the coalition press office provided figures on compensation up to September 18, 2003. As of that date, the coalition had received 5,394 claims. Foreign Claims Commissions had adjudicated 4,148 claims, 1,874 of which were denied. In total, the coalition had paid $901,545 in claims. Of these payments, twenty-one were for more than $15,000.105
102 U.S. Department of Defense Briefing, Baghdad, Iraq, August 4, 2003.
103 Human Rights Watch interview with Col. Marc Warren, Col. Mike Kelly and Major P.J. Perrone, Baghdad, September 23, 2003.
104 Human Rights Watch interview, Baghdad, September 20, 2003.
105 E-mail sent to Human Rights Watch from coalition press office on September 29, 2003.