Canadian military payments for death and destruction in Afghanistan
From a strictly legal standpoint, the Canadian military is not responsible for Afghan civilians caught in the crossfire of war. Like every nation with boots on the ground, Canada signed an agreement with AFGHANISTAN's government that waives any liability for so-called "collateral damage," including property destruction, injury, and even death. Simply put, the deal ensures that if soldiers in the heat of combat accidentally destroy a farmer's field - or mistake that same farmer for a Taliban insurgent, and open fire - Ottawa is safe from lawsuits.
But that doesn't mean the army ignores the innocent (and inevitable) victims of Canadian missions. Instead of "compensation," a term that implies a certain acceptance of blame, the Forces provides ex-gratia awards - a one-time, no-strings-attached payment made "out of kindness," not obligation. JAG lawyers in Kandahar can approve such claims up to $2,000 (anything higher requires a signature from the deputy minister of defence), and according to the latest figures, the handouts are growing larger and more common.
Between April 1, 2009, and March 31, 2010, the military issued 272 ex-gratia payments - more than five per week. The cash settlements ranged from as low as $185 to as high as $21,420, for a grand total of $661,045. That is triple the amount handed out during the previous year (102 payments totalling $205,828) and a fourfold increase from the year before that (57 payments; $152,683).
Why such a huge jump? The answer is difficult to confirm. The DEPARTMENT OF NATIONAL DEFENCE is hesitant to discuss how it atones for civilian loss in Afghanistan, careful not to jeopardize the safety of those who receive the cash - or draw extra attention to the harsh fact that Canadian soldiers sometimes make fatal mistakes. Last year, when Maclean's filed an Access to Information request for the details of all ex-gratia payments made during fiscal years 2008 and 2009, the documents arrived almost entirely censored (and took eight months to obtain). The latest numbers, outlined in the current Public Accounts of Canada, are equally vague. They contain no names, no dates, and no description of the 272 incidents that led to each payout.
Last month, Maclean's asked the Forces to explain why ex-gratia awards have tripled over the past year. Are soldiers inflicting far more civilian damage? Or is DND simply more committed to processing claims? Military officials said they would provide an answer before Christmas, but as this magazine went to press, it hadn't arrived.
Their reluctance to release sensitive details comes as NATO faces increasing pressure to standardize the way civilians are compensated for pain and suffering. Currently, each country operating in Afghanistan decides how best to make amends for collateral damage - and some nations are far more generous than others. At the heart of the ongoing debate is a very uncomfortable question: in a poverty-stricken nation where most people survive on less than a dollar a day, what is the value of a human life?
Norway once paid US$8,000 to the family of a dead civilian. The Italian military gave nearly double that to the parents of a 14-year-old girl shot to death at a traffic checkpoint, while Germany provided US$20,000 and a new car to the relatives of three people killed at another checkpoint. For Britain, the payments have varied wildly, from US$210 for the "death of wife & damage to compound" to US$7,000 for a man killed by a missile. As for the United States, front-line commanders can approve on-the-spot "consolation" payments of up to US$2,500.
What Canada considers an appropriate amount remains classified.
"I hate the term 'collateral damage.' We're talking about people's lives here," says Richard O'Meara, a retired American brigadier general and professor of global affairs at Rutgers University. "But what is the universal value of a human being? I don't know. I have to trust the men and women on the ground making the decisions."
One thing is clear: the dollar figure - disclosed or not - is only part of the story. That such payments even exist marks a monumental shift in modern warfare. "We now assume that we owe this money," O'Meara says. "This is brand new stuff, and each nation state needs to make that decision for themselves. Eventually we'll get to a universal standard, but we're moving in the right direction."
Erica Gaston, a human rights lawyer based in Kabul, has written extensively about civilian compensation. As part of a 2009 report authored for the advocacy group CIVIC (Campaign for Innocent Victims in Conflict) she asked the CANADIAN FORCES to reveal what they typically pay for accidental injury or death. Again, the military refused. But Gaston doesn't believe such secrecy should be mistaken for a lack of action. Canada, she says, has made it a top priority to identify harmed civilians and provide restitution. The spike in ex-gratia payments is proof of that trend, she says. "When numbers like that come out there is a tendency to think: 'Wow, does that mean civilian casualties are increasing?' " she says. "But the more likely answer is that a lot of governments, including Canada, are saying this is an important issue and one we should put more resources into."
When American troops first came looking for Osama bin Laden in October 2001, the Pentagon decided that compensating civilians caught in the crossfire would be "culturally inappropriate." But as the hunt for al-Qaeda's leader evolved into a drawn-out counter-insurgency campaign, Washington - and its coalition allies, including Canada - eventually realized that you can't win hearts and minds by ignoring a child's corpse.
"We are all human and we should care about the suffering of another human," says Sarah Holewinski, CIVIC's executive director. "But this is also important from a strategic perspective. You will anger the population - you will create such incredible resentment - if you ignore civilian harm. It is mission-critical."
Canadian troops first arrived in Kandahar in early 2002. By March 2004, according to documents released under Access to Information, the military was paying some form of compensation to certain civilians, although the amount and the reasons are blacked out. The following October, the U.S. altered its policy to allow similar "solatia" payments, and two months later Gen. Rick Hillier, then the chief of the defence staff, signed that agreement with Hamid Karzai's government, replacing liability with ex-gratia awards.
In a war that has cost billions (not to mention the lives of 154 Canadian soldiers), many Westerners may have a hard time understanding how the death of an innocent person warrants only a few thousand dollars. But in Afghanistan, where blood money is common, a few thousand dollars - combined with a genuine apology - is often enough. "The compensation is not supposed to make up for a person's life," Holewinski says. "What it's supposed to communicate to the family is: 'We're sorry for your loss, we didn't intend for you to suffer, and this is a way of us tangibly showing you that.' It is very appropriate in the Afghan culture."
NATO has taken steps to limit collateral damage, including restrictions on nighttime raids. In the first 10 months of 2010, civilians injured or killed by international or Afghan troops actually dropped 18 per cent, to 742. (The same United Nations report found that civilian casualties caused by insurgents were up 25 per cent, to 4,738.)
At least a dozen Afghans have been killed by Canadian soldiers since the mission began. Most shootings occurred because a driver ignored repeated warnings to stop at a checkpoint and was mistaken for a suicide bomber. In one tragic incident, a four-year-old girl and her two-year-old brother were gunned down when the car they were riding in failed to pull over for a passing convoy. In each case, the military's National Investigation Service cleared individual troops of any wrongdoing, and most of the victims' families were reportedly paid compensation. But not all.
In February 2007, a man driving a white Toyota was shot and killed by troops who had formed a security cordon around a broken-down armoured vehicle. According to witnesses, the driver hit the accelerator despite hand signals and warning shots urging him to stop. Fearing the worst, the soldiers aimed directly at him. "The use of force was found to be in accordance with rules of engagement," wrote a military lawyer. "While a family member claimant has made a request for compensation, his claim has been denied."
When it comes to property damage, deciding who deserves restitution is just as difficult. In Kandahar, where corruption is rampant, Canadian JAGs are regularly faced with bogus stories. In January 2007, for example, a man showed up at a base demanding cash for his damaged car. When pressed, he "admitted that he was not driving with his lights on and did not see" the LAV III he T-boned. Wrote one officer: "We are not paying his claim."
In one dubious claim, a man insisted that his business was lost when the army set up a checkpoint at an undisclosed building. The military investigated, but found his story had "no merit" because the building was a garbage dump, not a storefront. "People were using it to defecate in," wrote one soldier.
Many other claims, though, were deemed legit. One man was compensated after his "car dealership computerized sign" was ruined. Another received an ex-gratia award because troops used a bulldozer to remove his parked car, which "was incorrectly assessed to be a security risk." And in December 2006, a Canadian vehicle driving in early morning darkness veered off a road and smashed into a compound. The owner told military police that "he would have to rebuild the wall in order for the women in the compound to remain hidden." His claim was approved.
As always, the amount is censored.
For reasons that remain unclear, the documents do reveal the dollar figure paid for one particular type of loss: the death of Afghan interpreters working alongside Canadian troops. However, like everything about the ex-gratia regime, it is difficult to comprehend the military's calculations.
In October 2007, the relatives of one interpreter killed in action were given $6,790. Three months later, the family of another fallen "terp" was awarded $9,900 - $3,100 more.
Giving when it hurts
Though not liable for civilian deaths, injuries or property damage, the Canadian military provides innocent victims ex-gratia payments 'out of kindness'
NUMBER OF EX-GRATIA PAYMENTS/TOTAL AMOUNT
April 2007 to March 2008 57 $152K
April 2008 to March 2009 102 $206K
April 2009 to March 2010 272 $661K
Maclean's January 17, 2011