Compensation for death and injury of civilians during war has been practiced for hundreds if not thousands of years. Money, as a means to settle grievances and wrongdoing, is often part of securing peace or mitigating civilian support or collaboration with the enemy. Contemporary practice includes cash payments offered to civilians in counter-insurgency operations, human rights awards to large inter-State claims commissions, and domestic reparation programmes at the end of hostilities.
While the United States announced last year its Civilian Harm Mitigation and Response Action Plan (CHMR-AP) with civilian protection a strategic priority and moral imperative, delivering compensation to civilians harmed in military operations has its challenges. In this post, we discuss some of the issues that may arise when seeking to redress civilian harm during ongoing hostilities, using the example of the Troubles in Northern Ireland. We argue that the failure to have a transparent, fair, and victim-sensitive process causes further grievances to civilians and an increased distrust of the State.
Compensation During War: Condolence or Impunity
For decades many militaries have practiced the use of condolence payments or ex gratia “amends” to civilians harmed by military operations as part of humanitarian and counter-insurgency operations. Some armed groups even compensate civilians as a way to maintain good relations with the local community. This is unsurprising given that the failure to provide redress for harm caused can drive grievances and compensation can be a means of winning “hearts and minds” through recognising the harm caused. Ukraine is unlikely to strategically use such payments to maintain the support of its citizens, but such interim payments can play an important part in mitigating civilian harm until reparations are made. The right to a remedy can have a guiding value here.
Some commentators have called for a “war torts” system to be put in place to mitigate civilian harm and to streamline the patchwork practice of amends. Given the limitations of international humanitarian law and human rights in armed conflict, a system to facilitate redress to civilians harmed by lawful military operations is a seductive one. However, there are fundamental problems with the way in which such redress operated by militaries functions in wartime that may not be simply overcome through new rules.
A report by Ceasefire found that civilian claims relating to the United Kingdom’s military operations in Afghanistan and Iraq faced procedural barriers that disproportionately disadvantaged them in accessing amends. These included complex procedures, language difficulties, unequal treatment, refusal to acknowledge responsibility, and a lack of any appeals process for rejections. Similarly, the Pentagon’s CHMR-AP has been condemned for not being empowered to reopen past rejections of claims.
There is an unequal bargaining position between militaries making condolence payments and civilians in warzones, who can be vulnerable, desperate, and impoverished by the harm they have suffered. Some civilians, upon accepting any sort of support were required, in exchange, to sign waivers that bar any future reparation claims. Other payments have been made without consultation or participation of victims. For instance, despite the Dutch government recently agreeing to pay €4.4 million for community rehabilitation for the Dutch airforce’s bombing of an ISIS bomb factory in Hawija in 2015 that killed dozens of civilians, it was rejected by victims who wanted an apology and compensation.
There is something to be said for the place of remedy in these debates that moves us beyond no-fault charity to recognising the human suffering caused to civilians and the infringement of their rights. A recent report by CIVIC distinguishes amends as being made out of moral or strategic aims, even for lawful military actions, rather than for violations which would be the basis of reparations and remedies. Ceasefire have called upon the UK government to establish a reparation programme for combat operations so as to bring more transparency to the current practice. Moreover, they note that paying amends may hinder subsequent remedies by allowing a culture of impunity for those who cause harm by buying off victims with blood money.
It can be useful to think of redress during hostilities in terms of the right to remedy that can achieve the goal of winning hearts and minds, while at the same time better rebalance the bargaining power of civilians by improving procedural guarantees such as victim participation, transparency, and a range of measures beyond compensation. Some of these lessons were not learnt during the Troubles in Northern Ireland, which has fuelled grievances among the families of both civilians and soldiers who were killed.
Compensation for Bereavement During the Troubles in Northern Ireland
We recently published a report on statutory compensation during the first decade of the Troubles in and around Northern Ireland. While it is debateable whether the Troubles arose to the level of an armed conflict under Common Article 3 of the Geneva Conventions (the British government did not characterise it as such), the early years 1969-1976 marked some of the worst violence that could satisfy the Tadić test with regards to intensity and organisational thresholds. In the space of a few months in 1969 over 60,000 people were forcible displaced from their homes, with the British Army brought in to police the streets, internment introduced, and the Irish government wanting to refer the situation to the UN Security Council. During this period over 1,800 people were killed, just over half of all of those killed during the thirty years of the Troubles, and thousands more were seriously injured, in a country of less than 1.5 million people.
The compensation scheme used during this period was based on court awards and out-of-court settlements that had a statutory basis for making payments to victims for injuries caused by criminal acts. Compensation is intended to cover the loss of income to a family where they were dependent on the deceased victim. However, the criminal injuries compensation scheme first created in New Zealand in 1963, then adopted in England and Wales in 1964, was grossly inadequate to address the political nature of the violence, long-term unemployment, and tens of thousands of bombings and shootings in Northern Ireland. Over a third of those killed were unmarried, which often meant that their next of kin were not dependant on them and would only receive £50 to £150 to cover funeral costs. From analysing the data, we found that over a third (363) of bereaved families received less than £1,500 for the death of their loved one, and sixty percent received less than £5,000.
In human rights law, compensation is meant to cover loss of income and expenses (pecuniary harm), as well as non-pecuniary harm, i.e. the emotional loss and suffering caused by the extrajudicial killing. In theory, this should meet both material needs in alleviating financial hardship and symbolic needs in providing recognition of the harm suffered. However, as our report comprehensively shows, the compensation scheme failed to meet either material or symbolic needs in most of the cases analysed because families received such small sums.
Our report makes a number of findings but in this post, we focus on three: the gender dimension; the use of compensation to avoid accountability; and the tension between the State’s priorities and civilians accessing an effective remedy.
Compensation paid to bereaved families had a detrimental gendered dimension. Although women account for only ten percent of those killed during the Troubles, their families disproportionally received lower awards than the families of male victims. Compensation on average for a bereaved family was £6,917 per killing, yet for women who were killed the average was only £1,742. Just over 70 percent (64) of the 90 women in our sample received less than £1,500, while a third (31) received £150 or less. Women, as the main claimants of compensation for bereavement, also suffered discrimination in how they were treated by courts. Single mothers and cohabitees received nothing for their partners’ deaths and in general, women received lower awards due to assessments that they were young, good looking, and able to marry again (as one judge put it to a victim during the compensation hearing).
We also found that the UK Ministry of Defence strategically used compensation settlements to prevent bad publicity. Paying out of court settlements meant that soldiers avoided having to give evidence in court, which also circumvented opponents using such cases as “political capital” where the facts of soldiers’ uses of force were “aired in public.” Moreover, this meant that many claims were not heard before the European Court of Human Rights, including the Bloody Sunday massacre of fourteen unarmed civilians killed by British paratroopers. This policy of using settlements was a means of “keeping a low profile” in the press. The private negotiation of compensation also meant that victims ended up accepting awards that were two or three times lower than if they went to court. Such an unequal bargaining position for those who lost their loved ones led some like Brice Dickson to comment that victims were being “bought off.” For some victims it engrained a strong sense of injustice, that the amount settled was an “insult,” and fuelled their long-term struggle for truth and justice against the State.
From this we can see a clear and obvious tension between the institutional objectives of the State apparatus and its human rights duty to offer reparations to the bereaved. Whereas the State’s perspective was premised on a) a financial calculation that minimised the cost of compensating those bereaved and b) a short-term necessity to shield Army morale from public censure, these objectives were ultimately achieved at the expense of victims whose sense of grievance was simply compounded. To aggravate matters further, public inquiries and inquests have subsequently cleared the “fog of war” to show that the use of lethal force was unlawful and unjustified in several cases. Despite some recent headlines of significant pay-outs in one or two high-profile cases, in many cases victims remain poorly compensated, unacknowledged, and without legal accountability regardless of the State’s obligation to provide them with redress.
There was, too, a particular reticence ensure that the State was not seen to be compensating those engaged in political violence that threatened the very constitutional status quo of the State. While our report details dozens of cases where members of armed groups were compensated, the contentious matter of whether those injured or killed “by their own hand” (as appears to be the most common parlance around the issue) should be compensated remains a divisive issue to this day. Despite comprising a minority of cases, the issue has been sufficiently contested to frustrate efforts at delivering fuller material and symbolic reparations to victims of the conflict across the board. Most notably, this led to the rejection of the Consultative Group on the Past proposals in 2009 due to the proposal to offer all victims a £12,000 recognition payment.
Concluding Thoughts
While the schemes explored in our report were not condolence payments, they were ex gratia payments comparable to broader compensation practices by other militaries in contemporary armed conflicts. The necessities of waging war may make settling civilians’ claims secondary to advancing military goals. However, at the heart of the U.S. CHMR-AP is the recognition that the harm caused to civilians by military operations cannot be ignored, lest it risks increasing hostility. Also, CHMR-AP recognizes that in moral terms, those who cause such harm should take a lead on mitigating it. The experience of Northern Ireland indicates that such efforts need to be more than a strategic paying off of victims, but instead provide them with an adequate claims process that acknowledges and remedies their suffering.
***
Luke Moffett is Professor of Human Rights and International Humanitarian Law at Queen’s University Belfast.
Kevin Hearty is a Lecturer in Criminology at the School of Social Sciences, Education & Social Work and a Fellow of the Senator George J. Mitchell Institute at Queen’s University Belfast.
Photo credit: U.S. Army, Capt. H. Howey
