The Pentagon accepts that with hundreds of allied bombings aimed at Islamic State targets since August, there is a "continued risk inherent in these strikes" for civilians on the ground. But that doesn't mean the United States will offer compensation if it kills them.
The United States is not planning to grant compensation for civilians killed in airstrikes in Iraq and Syria, Foreign Policy has learned, despite claims by credible groups that at least 100 noncombatants may already have died in the 16 weeks of U.S.-led bombings.
The decision, confirmed by a senior spokesman for U.S. Central Command (Centcom), the military command organization in charge of the air war, marks a significant departure from recent conflicts, in which payments have regularly been made to civilians negatively impacted by U.S. military actions.
Washington continues to insist it cannot confirm a single noncombatant death from more than 1,100 airstrikes against Islamic State targets -- despite a number of apparently well-documented cases of error or collateral damage in both Iraq and Syria.
America's 11 allies in the air war in Syria and Iraq may be no better placed to help. "If a claim of civilian casualties were found valid, that claim would be processed in accordance with the laws of the nation that conducted the strike," a Centcom spokesman told FP. But for civilians on the ground, it is often impossible to attribute responsibility.
Eight coalition members -- including Denmark, the Netherlands, and the three Arab partners -- currently refuse to say publicly where in Syria or Iraq they are bombing. Although Centcom releases information on airstrikes, its statements only say whether allies participated in the strikes, not where they took place.
Justifying its own decision to keep strike locations in Iraq secret, a spokesperson for the Australian Defence Force told FP that it "will not release information that could be distorted and used against Australia in [Islamic State] propaganda."
Centcom is now citing a 72-year-old U.S. law for its justification for not awarding compensation in Iraq and Syria. As a spokesman told FP, "For U.S. forces, claims would be processed in accordance with the Foreign Claims Act, which generally does not authorize compensation for damage or injury caused in combat operations." The Foreign Claims Act is a World War II-era statute that bars the military from compensating for civilians lawfully killed on the battlefield. These can either be noncombatants accidentally killed or civilians caught up in legitimate strikes, for example, on high-value targets.
Yet in other recent U.S. wars, the government has enabled a system of "no-fault" payouts for situations in which civilians were accidentally killed. It was a common-sense recognition of the damage such deaths can do to U.S. war aims, say analysts.
"The U.S. and its allies began making no-fault payments for civilian casualties in Afghanistan after their failure to acknowledge these tragedies created a backlash and handed a recruiting card to groups like the Taliban," said Letta Tayler, a terrorism researcher at Human Rights Watch. "While states have no international legal obligation to compensate for so-called ‘acceptable collateral damage,' doing so is the right move morally and strategically."
A U.S. Defense Department official, speaking to FP on background, claimed that the congressional authorizations that allowed for such payments in Afghanistan and during Operation Iraqi Freedom were only temporary and do not apply to Syria or Iraq today. That means the government has no choice but to cite the Foreign Claims Act, U.S. officials believe.
Others contest this. The New York-based Center for Civilians in Conflict, an advocacy group, points, for example, to permanent legislation passed by Congress this year designed expressly to ensure that "no-fault" compensation could continue to be paid to victims of any U.S. conflict. The new law is aimed specifically at "matching Washington's rhetoric for responsible use of force with practical actions," wrote Sahr Muhammedally, a senior program manager with the center. Campaigners are now wondering why it isn't being applied to Iraq or Syria.
Multiple partners and secret targets
Despite a common enemy in the Islamic State, two different allied air wars are emerging in the Middle East. In Iraq, only Western countries are bombing. They are there at the invitation of the Iraqi government, which the air campaign is in part devoted to propping up. Indeed, both the Pentagon and Britain's Defense Ministry confirm that allied airstrikes are being cleared in advance with Iraq's military.
In Syria, only Arab countries -- Saudi Arabia, Jordan, and the United Arab Emirates -- have joined the United States in bombing Islamic State targets. (Qatar and Bahrain participated in the first night of attacks on Sept. 23 but have not since participated in bombing operations.) Bashar al-Assad's regime does not consent to these bombings, though its air defenses remain dormant.
So far, only the United States is attacking on both sides of the border, and it remains the dominant partner. Latest figures from Centcom show that the United States has carried out around 85 percent of coalition airstrikes in Iraq and Syria.
Unlike United Nations-sanctioned operations in Afghanistan, the allies in the anti-Islamic State campaign are not part of any formal alliance. It is more a loose "coalition of the willing," according to one U.S. defense official -- an echo of the original Iraq invasion back in 2003. Although the United States has established "coalition standards on targeting and the appropriate use of lethal force, which always must account for the possible risk of civilian casualties," these are for guidance only, said a Centcom spokesman.
Instead, "each nation participating in the coalition may modify or supplement this coalition guidance, including rules of engagement, with its own ‘caveats,'" the Centcom spokesman told FP. Every one of the 12 countries involved in the air campaign operates "in accordance with its own legal requirements," according to the spokesperson. Britain's Defense Ministry, for example, confirmed to FP that "we will not undertake missions [in Iraq] if they do not fall within U.K. [rules of engagement]." Britain's rules of engagement, like those of all other countries in the alliance, remain classified.
So where does an air war leave civilians when 12 countries fly by 12 different rule books? The Pentagon insists that "no other military in the world works as hard as we do to be precise in our targeting." And all allies "have implemented significant mitigation measures within the targeting process and during the conduct of operations to reduce the potential of civilian casualties and collateral damage," according the Centcom spokesman. Yet a number of airstrikes in Iraq and Syria show the difficulty of verifying these assertions.
The difficulty of counting
On Oct. 25, a "US raid on a stronghold of the IS [Islamic State] killed two civilians by mistake," according to an Iraqi news agency, citing a medical source at a hospital in Mosul, Iraq. The airstrike, the source said, had hit the city's southern Qayyarah district, and the bodies were taken to the hospital's morgue.
The Mosul case -- one of more than a dozen incidents in which allied aircraft are alleged to have killed Iraqi or Syrian civilians -- highlights many of the challenges for advocates who record civilian casualties in Iraq and Syria and the lethal risks that the air war poses to Iraqi and Syrian civilians.
International monitors picked up on the reported civilian fatalities in Mosul via the National Iraqi News Agency (NINA), an independent Iraqi news wire. According to groups tracking civilian deaths in Iraq, NINA is a reputable source; yet monitors are finding it increasingly difficult to independently verify claims of civilian deaths. In part they are simply overwhelmed: the U.K.-based Iraq Body Count, an independent web-based organization, reports almost 16,000 civilian deaths in Iraq so far this year. Where deaths can be attributed, the overwhelming majority have been caused by the Islamic State, but the cause of thousands of deaths cannot so far be attributed to any party.
The Mosul case is one of at least nine in Iraq in which allied aircraft may have caused civilian deaths, according to monitors. On Oct. 5, for example, at least 18 civilians died when a marketplace was bombed in the town of Hit in Anbar province, according to monitors and international media. Centcom has dismissed the claim of civilian deaths in Hit as "false."
Margaret Griffis, who has helped compile Antiwar.com's daily tallies of civilian deaths in Iraq since 2006, said that the quality of casualty reporting depends heavily on location: "Outside the ISIS [Islamic State] zones, we're getting a reasonable idea of the numbers of civilians killed," she said. "But in areas held by Islamic State? I'm not happy."
Mosul, which has been occupied by the jihadi group since June, is a case in point. One senior Baghdad-based journalist, who requested anonymity due to security concerns for the staff of the international news agency where the journalist works, told Foreign Policy that while the news agency was aware of reported civilian casualties from an allied airstrike in Mosul on Oct. 25, "we were never able to confirm it." Local journalists have been a particular target for harassment and murder by the Islamic State, making news-gathering a fraught business and keeping the number of civilian casualties ambiguous.
Centcom's own daily reports can be of little help. "Are the targets they're hitting significant? We can be pretty clueless about that," said the Baghdad-based correspondent. "A house might be bombed. Was it empty, occupied; did it contain weapons? We can't really determine ourselves on a day-to-day basis."
Human Rights Watch also reports significant problems in following up and confirming reports of civilian deaths. "We have heard, for example, of a family killed in Mosul by a U.S. airstrike. And we've tried to verify that claim. But Mosul remains completely inaccessible," said Erin Evers, the group's Iraq director, referring to what may be another incident in Mosul.
In these opaque circumstances, say casualty recorders, there is a particular onus on the United States and its allies to declare where and when each bombing in Iraq and Syria takes place -- particularly where civilian deaths have been alleged. This is frequently not the case.
The responsibility gap
Of the 15 likely airstrikes examined for this report that allegedly caused civilian casualties, seven took place on days when U.S. forces alone carried out missions or where the United States has claimed sole responsibility for an attack. Reports from independent monitors indicate that 49 or more civilians may have died in such attacks.
Three local Syrian residents, for example, have described to Human Rights Watch the deaths of seven women and children in a U.S. cruise missile strike in Syria's Idlib province on Sept. 23, which allegedly targeted the Khorasan Group. Centcom continues to deny any confirmed civilian casualties from the attack.
Another eight airstrikes in both Iraq and Syria reportedly responsible for civilian deaths present significant attribution challenges, with up to four allies participating in attacks on these dates. The refusal of most coalition members to say where they are bombing means some civilians may never know what country was responsible for dropping the bomb that killed their neighbors or families. (Only in one of the 15 incidents of alleged civilian casualties -- a Sept. 26 strike in Mosul -- were there no allied airstrikes reported in the vicinity by Centcom or its allies.)
The Oct. 25 strike in Mosul, which allegedly killed two civilians, clearly illustrates this problem. Almost one-third of the 600 allied bombings in Iraq to date have targeted Mosul and the surrounding area. Between Oct. 24 and 26 alone, Centcom confirms some 20 allied airstrikes in the area.
That term "airstrike" can be misleading, however. U.S. defense officials concede that what they report as a single incident might involve the targeting of numerous locations. British and Australian statements describe a recent bombing raid on an alleged Islamic State bunker system near Kirkuk that involved 20 aircraft from seven countries and that hit 44 targets. In its own reporting of the incident, Centcom describes just three "strikes."
Nor can any given target location be assumed to be accurate. While Centcom places all allied airstrikes around Oct. 25 in some 45 miles northwest of Mosul, near the city's dam, other allied reports prove otherwise. France's Defense Ministry reported that two of its aircraft dropped four bombs "on a suburb of Mosul" at around midnight, Iraqi time, on the night of Oct. 24.
Other countries might have bombed Mosul that day. Denmark will say only that its air force dropped "30 bombs" somewhere in Iraq during the week of Oct. 26 at locations unknown. The Dutch, too, say they released "dozens of bombs" during the week of Oct. 26 at locations unknown.
As the Mosul case demonstrates, it is often impossible for the public to determine which country is bombing where. Justifying Denmark's position, a Danish military spokesman recently told reporter Rasmus Raun Westh, "One particular attack on one particular area could lead directly back to Danish aircraft. We would rather hide in the crowd."
A lack of aerial intelligence
A particular risk for civilians in Iraq and Syria today is the low quality of pre- and post-strike intelligence. With few U.S. boots on the ground, there is a near-complete dependence on aerial intelligence, surveillance, and reconnaissance (ISR) missions. Yet many analysts and even U.S. officials say that U.S. forces are stretched too thin to provide sufficient intelligence.
By the end of October, only 10 weeks into the campaign, the allies had already dropped 500 more bombs and missiles in Iraq and Syria than in Afghanistan across all of 2014. Even so, Air Forces Central Command, the Air Force division of Centcom, reports 9,450 ISR missions over Afghanistan between August and October. During the same period, just 1,140 ISR flights are reported for Iraq and Syria combined.
That situation is likely to continue for the foreseeable future, with one Air Force official telling the Daily Beast, "As the troops draw down [in Afghanistan], they will need more, not less, ISR." With so few intelligence-gathering assets to call on, it's little wonder that a Pentagon spokesman recently described current civilian casualty assessments in the air war against the Islamic State as "inconclusive."
Centcom's continuing assertion that it has "no operational reporting or intelligence" confirming civilian deaths in Iraq and Syria, despite more than 1,000 airstrikes to date, is therefore unlikely to be accurate. Indeed, NATO was later forced to retract similar claims at the end of the 2011 Libyan air war after investigations found that dozens of civilians had in fact died in allied airstrikes.
Casualty monitors believe Centcom's claims are not credible. Iraq Body Count estimates that up to 100 civilians may have died in U.S. and allied airstrikes in Iraq -- though these represent less than 2 percent of civilians reported killed in Iraq during the same period, according to the group.
Lily Hamourtziadou, a casualty recorder with Iraq Body Count since 2006, said that of around 6,800 civilians killed in Iraq's violence since August, more than 2,500 are believed to have died at the hands of the Islamic State and its allies. A further 600 or more civilians have been reportedly killed in aggressive operations by the Iraqi military. Due to the lack of reporting and the chaos of the war, it's not possible to attribute all of the 6,800 deaths.
Across the border, the Syrian Observatory for Human Rights, a group that has gained a reputation for balanced reporting of Syria's civil war, uses a network of locals to track civilian and combatant deaths caused by the Assad regime, rebel groups, and now coalition airstrikes. More than 900 people were killed by the United States and its Arab allies in airstrikes between Sept. 23 and Nov. 21, according to the Syrian Observatory. Of these, around 50 were reportedly civilians. That number pales beside the actions of the Assad regime, which frequently targets civilians in rebel-held areas. "In one week alone in October the regime killed 182 civilians in airstrikes," said Syrian Observatory founder Rami Abdul Rahman.
As allied airstrikes have shifted from rural battlefields like Mount Sinjar and the Mosul Dam to the Islamic State's urban strongholds, they are now often targeting the same locations as the Assad regime or the Iraqi government, adding to the confusion. The Islamic State's self-declared capital of Raqqa, Syria, was the target of indiscriminate bombings by the Assad regime in the last week of November, killing up to 200 civilians. Days later, U.S. forces carried out multiple airstrikes of their own on the city, though there have been no reports of noncombatants killed in these attacks.
While there is no love lost between the Assad regime and the allied Arab and Western forces, airstrikes in Iraq are being conducted with the full knowledge and approval of Iraq's security forces, both Centcom and the British Defense Ministry told Foreign Policy. Yet how much this represents any safeguard for civilians is unclear.
According to Iraq Body Count's Hamourtziadou, Iraq's military has itself killed hundreds of civilians during operations in Sunni cities such as Mosul and Tikrit. "There have been nightly airstrikes by the Iraqi Army [in 2014], and these raids have reportedly caused civilian casualties almost every time," she said. The Iraqi military doesn't release information about its targeting and is understood not to pay compensation.
Casualty recorders are calling for the United States and its allies to be far more open about who they are hitting in Iraq and Syria -- and to pay promptly when civilians are killed or injured, whether such actions are lawful or not. "Transparent investigations of all allegations -- and creating appropriate programs to address civilian harm -- are mission critical for U.S. and coalition operations in Iraq and Syria," said Muhammedally, of the Center for Civilians in Conflict. "Ignoring losses can and will create anger and resentment among the population."