Rules of Engagement

Civilian Casualties in Iraq

What do we know about civilian deaths in Iraq? Where is the line between casualties of war and murder? How is the number of civilian deaths calculated? And what reparations are being paid to the families of civilians killed by U.S. forces?

  • Gary Myers
  • Jack Zimmermann
  • Josh White
  • Sarah Holewinski
  • Gen. David Petraeus
  • Jon Tracy
  • Gen. James Conway
  • Related links
  • The Iraq War's Civilian Toll
    This April 2007 story from NPR's All Things Considered examines the issue of condolence payments by talking to a former army officer who adjudicated the claims made by survivors; a wounded soldier who manned checkpoints and talks about the split-second decisions U.S. troops need to make when evaluating threats; and a representative of the ACLU who describes some recently released Army documents that shed light on the issue.
  • Condolence Payments
    Here is a backgrounder from the Campaign for Innocent Victims In Conflict (CIVIC) on the history, regulatory framework and problems associated with condolence payments to the families of civilian victims of the wars in Afghanistan and Iraq. [Note: This is a PDF; Adobe Acrobat required]

Gary Myers
Attorney for Lance Cpl. Justin Sharratt

myers

Civilians die every day at the hands of United States troops. I want that to be understood. It happens. It happens, and it is not murder.

Air power is employed every day in Iraq by United States troops. There are targeters who sit back and contemplate the probability of civilian death, take it into account, before they authorize a strike. And civilians die in those air strikes every day.

In fact, these young men in Haditha … could have called in air support. And I have no doubt that it would have been granted. And I also have no doubt that whatever deaths followed that air strike would have been accommodated by solatia payments, which is what we do when a civilian gets killed; we pay the Iraqi family associated with that person money. That's what would have happened.

There is, in fact, a dichotomy between the use of air power and the death of civilians and the use of ground power and the death of civilians. There is no responsibility attached to the use of air power and the death of civilians, whereas the death of civilians associated with ground forces comes under great scrutiny. And the irony is that air power is employed after thoughtful consideration, whereas the use of force on the ground is employed after milliseconds, frequently, of [a] decision-making process to fire or not fire.

Why is there this dichotomy when we're judging these actions?

There is no good reason, but there is a political reason. We have to use air power, and if we start holding our pilots responsible for the result of the death of civilians associated with the use of bombs, then we've got to also hold responsible the targeters.

There is nothing good about war. Let me be very, very clear about that. And there is really nothing good about insurgency warfare. If we want to have our troops fighting door-to-door, house-to-house, we're going to have to teach them to be SWAT teams. They are not SWAT teams now; they are blunt-force instruments.

Jack Zimmermann
Attorney for Lance Cpl. Stephen Tatum

zimmermann

… [T]here are clearly instances all the time in combat -- whether it's the Iraq war, the Vietnamese war, the Korean War, World War II, World War I -- where civilians get killed. ... [T]here's probably little doubt that there are other engagements in an urban environment where insurgents are killed and innocent civilians are killed at the same time. And you know, there's just more of an awareness now, and a very, very conscious effort to avoid that or to minimize that.

In World War II, we didn't seem to care. We carpet-bombed German cities. … We blew most of Japanese cities apart with atomic bombs. You mean there were no civilians killed when we did that? And yet, there was a combat objective that was being taken and accomplished by those type of actions. ...

I think there's always been an effort to avoid civilian casualties, I just think that the public is more aware of them now because of the fact that this is the first war where we've actually had reporters embedded in the units themselves, and they're reporting back. ...

Josh White
Military Affairs Correspondent, The Washington Post

white

Can you talk about your analysis of civilian homicide cases in the Iraq war?

Arising out of Iraq and Afghanistan there have been roughly 70 U.S. troops who have been charged with either murder, manslaughter, or negligent homicide … as a result of civilian deaths. So far only about a dozen of those cases that have been charged have actually resulted in convictions, and very few of them have resulted in very lengthy prison terms. In fact, the longest terms have come out of one case in Mahmoudiya that was a very horrible rape/murder case where some Army soldiers entered guilty pleas, acknowledged what they had done and are serving long sentences. One of those soldiers has not yet gone to trial; he's actually a civilian now and is going to civilian court.

What I think it says is that there is a willingness on the part of the U.S. military to investigate these cases when they arise. It's just that ultimately after the investigations, either the charges don't come to fruition because the facts don't support the allegation, or jury panels are not willing to come down hard on people who are in a war zone making very difficult decisions.

A lot of these cases come down to: Yes, a civilian was killed. The question is, why were they killed? And what was the decision that that Marine or soldier made when they killed that civilian? A lot of times it's either a case of mistaken identity, it's a case of it being in the heat of battle or it's a case of it being a mistake. When you send people out into a war zone with instructions to kill people, determining whether or not their kills are lawful or unlawful can be a very difficult task.

What is your sense of the scale of abuse by U.S. forces? …

It's very hard to know exactly the scale of abuses, homicides committed by U.S. troops in the field, in part because I imagine ... some of them simply go unreported. There must be cases out there that exist that we don't know about.

That said, 99.9 percent of the U.S. military is over there doing the best that it possibly can and doing the right thing each and every day. And it's important for people to remember that.

We've had more than 1.5 million Americans in uniform either in Afghanistan or Iraq since those wars began; we've had a handful of cases like this. Now some of the cases are quite alarming and raise a lot of questions and really come to the forefront of our understanding of the war, but I think that's in part because we're willing to analyze that. The U.S. military is willing to look at the cases that are problematic and bring them to the forefront and use them as examples of how not to operate. Most … of the members of the U.S. military who've deployed over there are doing the right thing each and every day. These cases that arise are in the very small minority.

Sarah Holewinski
Executive Director, Campaign for Innocent Victims in Conflict (CIVIC)

holewinski

In the fog of war you have a really hard time counting civilian casualties. You've got air strikes coming in; you've got ground forces fighting with insurgencies; you've got sectarian violence; you've got bandits and robbers who are just trying to take advantage of the chaos; and it's incredibly hard in that situation to figure out exactly how many people have been killed or injured.

We know the number is way too high, that's one thing. But the studies that have come out are extremely varied in their estimates, and that's because they use different methods of going about counting. … We've got estimates that go from 50,000 to 60,000 to 150,000 to 650,000. Now, that high number is not just civilians -- those are also combatants; those are also insurgents; they are people carrying guns; they're part of the army. So we need to make a distinction that the number of civilians killed is not that high, but it is too high. ...

The U.S. has told us that they don't do body counts, but we know that that's not true. There are databases. There's not one central database, but there are databases that the U.S. has been keeping that track civilian casualties. Now, we're not sure which civilian casualties they track, whether it's those caused by U.S. forces, whether it's because of sectarian violence. It hasn't been broken down. Their methodology hasn't been made public.

The importance of keeping those numbers is threefold: First, it means a lot to the Iraqi families, and when you're trying to win the war you have to win the people. Second, you don't know if you are avoiding civilians -- as they must do according to international law -- if you're not keeping the numbers. That means when you think that you're going to kill 30 civilians in an air strike, and you think that it's worth it, when you go back in you should find out if you killed 30 or if you killed 300. And third, if you don't know how many people you've harmed, you don't know how many people to give aid to. You don't know how many people need help. So all of those things are incredibly important. ...

Recently Gen. Petraeus gave testimony for the first time telling the U.S. side of the story of civilian casualties. ... And apparently civilian casualties, according to Gen. Petraeus, have declined by over 50 percent since the surge in Iraq. We don't have any data to back up that claim. ... Gen. Petraeus said that his data came from Iraqi and U.S. unidentified sources. ... We've been calling on them to say where they got those numbers, and they haven't been forthcoming. ...

Gen. David Petraeus
Commanding General, Multi-National Force - Iraq

You're constantly doing what we call the operational calculus. That calculus is embodied in the question that you ask yourself: Will this operation take more bad guys off the street than it creates by the way it is conducted? That is a principal question that we constantly address.

There could be a time, I guess, where the target is so important that you're willing to take the risk of substantial collateral damage. But that is very, very rare indeed, and there are actually very few cases -- in fact, I can't think of any case -- where we have gone into an operation with that thought.

We specifically, in fact, put certain rules of engagement in place sometimes even for specific operations where we've really thought it through -- we have a reasonable idea of where someone is, and we're trying to get the final 50 meters, as they say. We do think through those operations in quite a detailed manner to ensure that certain conditions are set before we use so-called kinetic means -- before we drop a bomb, shoot a Hellfire missile, pull a trigger -- so that, again, the number of enemies created, if you will, because of some action that could be seen as indiscriminate by the local population, that number does not exceed the number of bad guys that you actually killed or captured. ...

[We have been unable to obtain statistics from the military about the number of civilian deaths caused by our forces. Do you have ways of measuring how well we're avoiding civilian deaths?]

We certainly have on a daily basis our daily update that is provided to me. Each commander typically has something like that. There is a count of civilians killed and civilians wounded or injured. So we do track that very much. It is not our job, we don't believe, to release statistics on Iraqis in that regard. …

Jon Tracy
Army Judge Advocate in Iraq, 2003-2004; adjudicated claims filed by Iraqis who were harmed by U.S. or coalition military operations

tracy

The Foreign Claims Act was passed in the lead-up to our involvement in World War II, and basically it's a mechanism for the U.S. military to provide compensation to civilians that are harmed by the U.S. military in a non-combat operation. ...

Within one of the paragraphs of the Foreign Claims Act is the combat exclusion, which basically excludes any sort of compensation for an act that is caused during the course of a combat action by a U.S. military service member. That exclusion has been in the Foreign Claims Act since it passed in the '40s, and it's been a problem for the military. ...

The current program in Iraq and Afghanistan goes by the name of the condolence payment program. … Basically what the U.S. military is saying when they provide these payments is that this is a gift, it's an expression of our sympathy, but we are not taking any legal responsibility for any of the actions that have happened to you. So it's just making sure that everyone knows that we're doing this from the kindness of our hearts; we're not legally obligated to do this and we're not admitting to anything by providing you these payments.

Are the Iraqis who are making their claims aware of that?

It is part of the language that is given to them when they sign acceptance of the money. Whether or not they understand it, I'm not really sure. I will say, though, that in my time in Iraq the local leaders that I talked to -- the members of the district advisory committees and the neighborhood advisory committees, and local leaders that I spoke with about this process -- were always surprised by the fact that, number one, it was limited to only $2,500, and number two, that it wasn't based on anything other than this gift.

Gen. James Conway
Commandant, U.S. Marine Corps

Where we think we have been wrong or have created unnecessary civilian deaths, [we] certainly do the right thing early on with the families, attempt to provide them compensation or solatia payments to acknowledge our potential wrongdoing. It's not an admission of guilt. It's an admission of the fact that a civilian has been killed and we have been involved. There must necessarily be an investigation and follow-on after that. We make sure that the families certainly understand that.

We also, though, see sort of a unique thing that takes place in the culture, and there is this almost acceptance, [which] I don't think would be as true in a Western nation, that says, "Well, inshallah" -- it's God's will -- "that these things happen. It's unfortunate. We certainly regret the loss of our family members, but we must move on."

So we observed that. It doesn't make anything right. It does make it a little better from a public relations perspective to continue to do good things in Haditha and some of these other places where we've had incidents and put that pretty much behind us.

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posted february 19, 2008

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