Arts, Faculty of
Political Science, Department of
DSpace
UBCV
Heard, Kaleigh S.
Doctor of Philosophy - PhD
University of British Columbia
It is estimated that since the Global War on Terror began in 2001, these wars have directly caused the deaths of 897,000 to 929,000 people, including 364,000 civilians (Cost of War Project, 2022). While efforts to mitigate civilian harm have grown, significantly less attention has been paid to what happens when civilian harm does, inevitably, occur. Theorized by counterinsurgency specialists to reduce or mitigate some of the population-centric strategic costs associated with civilian harm incidents caused by counterinsurgency forces, civilian harm response and compensation has become a central consequence management strategy used by Coalition forces in counterinsurgency and counterterrorism operations. They are thought to assist counterinsurgents to obtain, retain, or regain legitimacy amongst affected communities in the aftermath of civilian harm incidents. However, efforts to respond to civilian harm incidents have varied widely in practice. Approaches, processes, and amounts of compensation have ranged widely across cases, begging the question— does civilian harm response and compensation ‘work?’ This study argues that for civilian harm response and compensation to be effective in contributing to counterinsurgency goals they must be designed with the needs and expectations of affected survivors, their families, and communities at the centre. In order to demonstrate this theory, I present evidence using process tracing and qualitative comparative techniques to analyze a wealth of primary and secondary data garnered from archival and interview-based research conducted in Iraq, Afghanistan, and Syria. I show that in these contexts how militaries respond to civilian harm incidents matters greatly to achieving their strategic objectives and securing the central objective of counterinsurgencies—legitimacy—in the aftermath of civilian harm. In all nine cases, I demonstrate that it is only when the needs and expectations of survivors, their families, and communities are prioritized and embedded into the response and compensation approach that these can mechanisms contribute positively to counterinsurgency’s legitimacy-centric objectives.
The Price of a Life: The Confluence of Strategy and Legitimacy in Civilian Harm Compensation by Kaleigh S. Heard M.A., The University of British Columbia, 2015 M.A., The Royal Military College of Canada, 2015 B.A., The University of Western Ontario, 2013 A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Political Science) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) August 2023 © Kaleigh S. Heard 2023 ii The following individuals certify that they have read, and recommend to the Faculty of Graduate and Postdoctoral Studies for acceptance, the dissertation entitled: The Price of a Life: The Confluence of Strategy and Legitimacy in Civilian Harm Compensation submitted by Kaleigh S. Heard in partial fulfilment of the requirements for the degree of Doctor of Philosophy in Political Science Examining Committee: Richard Price, Professor, Political Science, University of British Columbia Supervisor Brian Job, Professor, Political Science, University of British Columbia Supervisory Committee Member Arjun Chowdhury, Associate Professor, Political Science, University of British Columbia Supervisory Committee Member Michael Byers, Professor, Political Science, University of British Columbia University Examiner Hugh Gusterson, Professor, Anthropology, University of British Columbia University Examiner iii Abstract It is estimated that since the Global War on Terror began in 2001, these wars have directly caused the deaths of 897,000 to 929,000 people, including 364,000 civilians (Cost of War Project, 2022). While efforts to mitigate civilian harm have grown, significantly less attention has been paid to what happens when civilian harm does, inevitably, occur. Theorized by counterinsurgency specialists to reduce or mitigate some of the population-centric strategic costs associated with civilian harm incidents caused by counterinsurgency forces, civilian harm response and compensation has become a central consequence management strategy used by Coalition forces in counterinsurgency and counterterrorism operations. They are thought to assist counterinsurgents to obtain, retain, or regain legitimacy amongst affected communities in the aftermath of civilian harm incidents. However, efforts to respond to civilian harm incidents have varied widely in practice. Approaches, processes, and amounts of compensation have ranged widely across cases, begging the question— does civilian harm response and compensation ‘work?’ This study argues that for civilian harm response and compensation to be effective in contributing to counterinsurgency goals they must be designed with the needs and expectations of affected survivors, their families, and communities at the centre. In order to demonstrate this theory, I present evidence using process tracing and qualitative comparative techniques to analyze a wealth of primary and secondary data garnered from archival and interview-based research conducted in Iraq, Afghanistan, and Syria. I show that in these contexts how militaries respond to civilian harm incidents matters greatly to achieving their strategic objectives and securing the central objective of counterinsurgencies—legitimacy—in the aftermath of civilian harm. In all nine cases, I demonstrate that it is only when the needs and expectations of survivors, their families, and communities are prioritized and embedded into the response and compensation approach that these can mechanisms contribute positively to counterinsurgency’s legitimacy-centric objectives. iv Lay Summary This study explores whether civilian harm response and compensation ‘works’ in reducing or eliminating these strategic consequences. I argue that if counterinsurgents want to use these approaches to help achieve their strategic legitimacy-centric goals, civilian harm response and compensation approaches must be designed with the needs of affected survivors, their families, and communities at the centre in order to do so. I conducted this research using documents declassified by Western militaries and by conducting interviews with civilians and military personnel who have experienced or been involved in civilian harm incidents in Iraq, Afghanistan, and Syria. In each context, the cases explored show that civilian harm response and compensation is only ‘effective’ in contributing to a mission’s legitimacy-centric goals if the needs and expectations of survivors, families, and communities are met during this process. v Preface This dissertation is original, unpublished, and independent work by the author, Kaleigh S. Heard. The fieldwork reported in Chapters 2 to 5 are covered by UBC Ethics Certificate H19-0241. vi Table of Contents Abstract ...................................................................................................................................................... iii Lay Summary ........................................................................................................................................... iv Preface ......................................................................................................................................................... v Table of Contents ................................................................................................................................... vi List of Tables ............................................................................................................................................ ix List of Figures ........................................................................................................................................... x Acknowledgements .............................................................................................................................. xii Dedication ................................................................................................................................................ xiv Chapter 1: Introduction ........................................................................................................................ 1 1.1 The Puzzle .................................................................................................................................................. 1 1.2 Theory & Hypotheses ............................................................................................................................. 7 1.2.1 The Counterinsurgency Legitimacy Condition ........................................................................................................... 8 1.2.2 The Protection Determinant ............................................................................................................................................ 10 1.2.3 The Requirement for a Survivor-Centric Approach .............................................................................................. 13 1.2.4 Assumptions & Scope Conditions .................................................................................................................................. 20 1.3 Methodology ............................................................................................................................................ 22 1.3.1 Approach .................................................................................................................................................................................. 24 1.3.2 Theory of Change (ToC) Development ........................................................................................................................ 25 1.3.3 Case Selection ......................................................................................................................................................................... 27 1.3.4 Data Collection ....................................................................................................................................................................... 31 1.3.5 Analysis and Theory Testing ........................................................................................................................................... 36 1.4 Ethics .......................................................................................................................................................... 37 1.4.1 Safety & Security ................................................................................................................................................................... 37 1.4.2 Distanced Research (COVID-19) .................................................................................................................................... 42 1.4.3 Relevant and Impactful Research .................................................................................................................................. 43 1.5 Structure ................................................................................................................................................... 44 Chapter 2: Civilian Harm Response in the Legitimation Logic of Counterinsurgency .............................................................................................................................. 46 2.1 Introduction ............................................................................................................................................ 46 2.2 Protecting Who, Why, and from What? .......................................................................................... 50 2.2.1 Protecting Who? Distinguishing between Civilians and Combatants ............................................................ 50 2.2.2 Why? Understanding Civilian Protection Obligations in Conflict .................................................................... 52 2.2.3 From What? Civilian Harm in Modern War .............................................................................................................. 53 2.2.4 The Scope of Protection ..................................................................................................................................................... 55 2.3 The Protection Logic of Population-Centric Counterinsurgency .......................................... 57 vii 2.3.1 Denying Insurgent Objectives: Fighting for Legitimacy ...................................................................................... 60 2.3.2 Operationalizing the Legitimacy Pursuit .................................................................................................................... 62 2.3.3 Securing the Support of the Population to Establish Consent .......................................................................... 63 2.3.4 Determinant Identification ............................................................................................................................................... 65 2.5 The Protective Heart of Counterinsurgency Success ................................................................. 73 2.6 The Strategic Value of Civilian Harm Response and Compensation .................................... 80 2.6.1 Civilian Harm Reparations and Compensation in Context ................................................................................. 82 2.6.2 Civilian Harm Response and Compensation as Strategic Advantage ............................................................ 84 2.7 Conclusion ................................................................................................................................................ 94 Chapter 3: Inconsistent and Inadequate ................................................................................... 95 3.1 Introduction ............................................................................................................................................ 95 3.2 Overview of Cases .................................................................................................................................. 96 3.3 The Iraq War, Civilian Harm, Response and Compensation ................................................... 97 3.4 Mohammad Subhi Hassan al-Qubaisi, June 26, 2003, Baghdad, Iraq ................................ 101 3.5 Waleed Khaled and Haider Kadhem, Hay al Adel, Baghdad, Iraq, August 28, 2005 .... 113 3.6 Abdullah Abadi, December 31, 2006, North East Ramadi, Tikrit, Iraq ............................. 129 3.7 Summary ................................................................................................................................................ 143 Chapter 4: Ad-Hoc and Everywhere .......................................................................................... 148 4.1 Introduction ......................................................................................................................................... 148 4.2 The Conflict, Civilian Harm, and Compensation ....................................................................... 149 4.3 Overview of Cases ............................................................................................................................... 154 4.4 The Sharabuddin family, Gardez, Paktia Province, February 12, 2010 ........................... 155 4.5 The Kashkaki family, Surkh Rod, Nangarhar, 14 May 2010 ................................................. 180 4.6 Noorlam Sahib Valley, Alingar, Laghman Province, 16 September 2012 ........................ 187 4.7 Summary ................................................................................................................................................ 197 Chapter 5: The Remoteness of Harm ........................................................................................ 201 5.1 Introduction ......................................................................................................................................... 201 5.2 Overview of Cases ............................................................................................................................... 202 5.2 The Conflict, Coalition Air Warfare, and CJTF-OIR .................................................................. 202 5.4 The Saleh Family and others, Industrial District, Hawija, Kirkuk, June 2-3, 2015 ....... 209 5.5 The Razzo Family, September 20, 2015, The Woodlands, Mosul, Nineveh ..................... 234 5.6 The Al-Haj Family, Tabaqa, Raqqa, Syria, December 20, 2016 ........................................... 252 5.7 Summary ................................................................................................................................................ 263 Chapter 6: Conclusion ..................................................................................................................... 270 6.1 Findings & Contributions of Research ......................................................................................... 276 6.2 The Impact of Response and Compensation Effectiveness on the Theory of Change .............................. 283 viii 6.3 Key Factors influencing Perceptions of Effectiveness across Cases .................................. 285 6.2.1 Accessibility .......................................................................................................................................................................... 286 6.2.2 Safeguarding and Protection ......................................................................................................................................... 288 6.2.3 Timeliness .............................................................................................................................................................................. 289 6.2.4 Fairness and Impartiality ................................................................................................................................................ 290 6.2.5 Transparency and Communication ............................................................................................................................ 291 6.2.6 Care, Compassion and Empathy ................................................................................................................................... 292 6.4 Recommendations .............................................................................................................................. 293 6.5 Research Contributions and Future Avenues of Inquiry ....................................................... 298 6.5.1 Contributions of the Research ...................................................................................................................................... 298 6.5.2 Future Avenues of Inquiry .............................................................................................................................................. 299 6.6 Final Reflections .................................................................................................................................. 305 References ............................................................................................................................................. 308 ix List of Tables Table 1.1: Predictions for ToC Effectiveness for each Case………………………………….....25 Table 1.2: ToC Workshop Overview…………………………………………………………….33 Table 1.3: Overview of Cases……………………………………………………...…………….36 Table 1.4: Overview of Interviews...…………………………………………………………….40 Table 2.1: Non-comprehensive list of factors impacting civilian perceptions of legitimacy by 30 civilians from Iraq and Afghanistan………………………………………………………75 Table 2.2: Indicative Overview of Civilian-Generated Factors of Effectiveness at the Operational and Tactical Level………………………………………………………………97 Table 3.1: Overview of Cases in Iraq…………………………………………………………..102 Table 3.2: Summary of Case Outcomes in Iraq………………………………………………...150 Table 4.1: Overview of Cases in Afghanistan………………………………………………….161 Table 4.2: Summary of Case Outcomes in Afghanistan………………………………………..203 Table 5.1: Overview of Cases in Iraq and Syria……………………………………….……….208 Table 5.2: Summary of Case Outcomes in Iraq and Syria……………………………………...269 Table 6.1: Effectiveness Outcomes for ToC of Effectiveness Evaluations versus Predictions for each Case……………………………………………………………………….283 x List of Figures Figure 1.1: United States Government Purchase Order Invoice Voucher, July 15, 2005…….….12 Figure 1.2: Survivor-Centric Theory of Effectiveness for Civilian Harm Compensation in Counterinsurgency Operations……………………………….…………….….22 Figure 2.1: Support for an Insurgency in FM-3.24: US Counterinsurgency Field Manual….…...69 Figure 2.2: Williams’ Onion Model of Protection……………………………….………….……81 Figure 2.3: Visual Overview of COIN–POC Strategic-Level Theory of Change……….……….85 Figure 2.4: The Role of Civilian Harm Response and Compensation in COIN Strategic-Level Logic…………………………………………………………………………….94 Figure 2.5: CHRC Factors by Stage Flowcart mapped to ToC…………………….…………….99 Figure 3.1: Photos of Mustafa al Qubaisi holding a photo of Muhammad al-Qubaisi and the bullet holes found in the al Qubaisi home……………………………………110 Figure 3.2: Wafa’’s statement submitted to the [redacted] ‘Infantry bridge [brigade] combat team legal office………………………………………………………………………...115 Figure 3.3: Claims form regarding the case of Muhammad al-Qubaisi…………………….……115 Figure 3.4: Visual Mapping of al-Qubaisi Case to Theory of Effectiveness…………….………118 Figure 3.5: Images of Waleed Khaled and Haider Kadhem……………………………….….…124 Figure 3.6: Photographs of the incident scene, 28 August 2005……………………….……..….125 Figure 3.7: Visual Mapping of Khaled and Kadhem case to Theory of Effectiveness…………..134 Figure 3.8: Rights Waiver Form for dereliction of duty of Captain Nicholson…….……………146 Figure 3.9: Memorandum documenting the approval of a $5,000 USD solatia payment in this case, 1 January 2007……………………………………………………………147 Figure 3.10: Visual Mapping of Abadi case to Theory of Effectiveness………………………...148 Figure 4.1: Photographs of several victims from the assault on the Sharabuddin compound…....164 Figure 4.2: A selection of photographs from post-event Initial Assessment and evidence Collection in Sharabuddin case………………………...……………………………………….168 Figure 4.3: Images of Key Leader Engagement Receipts provided to Hajji Sharabuddin……….178 Figure 4.4: Photograph of engagement between the Sharabuddin family and Vice-Admiral McRaven……...…………………………………………………………………180 Figure 4.5: Visual Mapping of Sharabuddin case to Theory of Effectiveness…………………...183 Figure 4.6: Visual Mapping of Kashkaki case to Theory of Effectiveness………………………192 Figure 4.7: Visual Mapping of Noorlam Sahib Valley case to Theory of Effectiveness………...201 xi Figure 5.1: Abdullah’s family members killed in airstrike, 2-3 June 2015………………………219 Figure 5.2: Visual Mapping of Hawija case to Theory of Effectiveness………………………..236 Figure 5.3: Photographs of Razzo family members killed in the attack…………………………242 Figure 5.4: Visual Mapping of Razzo family case to Theory of Effectiveness…………………..256 Figure 5.5: Images of civilians killed in 20 December 2015 airstrike…………………………...260 Figure 5.6: Visual Mapping of al-Haj family case to Theory of Effectiveness…………………..267 Figure 6.1: Images of damage caused to the car and compound struck in the 29 August 2021 airstrike………………………………………………………………………...277 Figure 6.2: Images of the Ahmadi family members killed in 29 August 2021 Kabul airstrike…..278 Figure 6.3: Image of the Ahmadi family mourning during the funeral for their family members……………………………………………………………………………278 Figure 6.4: Visual Overview of Legitimacy-Centric COIN ToC for CHRC in effective case……………………………………………………………………...285 Figure 6.5: Visual Overview of Ineffective CHRC Process in COIN ToC……………………...287 xii Acknowledgements I am overwhelmed by the sense that in completing this study I am both at an end and a beginning. It is a unique privilege to find an issue you are deeply passionate about, and an even greater privilege to complete a doctorate on that very thing. This study has defined me and my life for longer than I’d like to admit and has been the constant passion through life’s joys and sorrows in that time. This work has been both my constant frustration and my saving grace. It's incredible to reflect not only on the work that’s been done, but the community without which it would never have been possible. First, to my supervisor, Richard Price – from a seminar conversation about art restitution to this dissertation, I could not have asked for a better or more supportive mentor. Your kindness has been unparalleled, the enthusiasm has kept me motivated, as has your unfailing patience (that of a saint— I know I wasn’t the most deadline oriented student you’ve ever had) and your ability to roll with all the curveballs (this project has possibly been hit by the most ever– the fall of a government, assassinations, sudden rebellions, ISIS, and a global pandemic…clearly I did not have the best luck!) have made this project what it is, and me a much better scholar and person. I cannot thank you enough for your kindness, support, and wisdom. To my committee members, Brian Job and Dr Arjun Chowdhury, thank you for all your guidance, not only during this dissertation, but through my entire time at UBC. Brian, from nearly my first day at UBC you approached our conversations as those with a colleague, gave me some of the most formative guidance on my writing I’ve ever received, and inspired me to be the best teacher I could possibly be. It's been such a privilege to learn from you and I am forever grateful. Arjun– thank you for never giving me the easy way out. You have challenged me significantly, and its always been for the better, both for my work and my development as a scholar. I’m truly grateful for all your support. I would also like to thank my university examiners, Michael Byers and Hugh Gusterson, and my external examiner, Thomas Gregory, for taking the time to review my dissertation so thoroughly and provide such valuable feedback. An additional thank you to the University of British Columbia Department of Political Science, the Social Sciences and Humanities Research Council, the Joseph M. Bombardier Canada Graduate Scholarship, the Joseph C. Fox International Fellowship at Yale University, my Fox Fellow cohort, and the entire xiii Fox family and the University of Oxford for their support throughout different stages of this project. A special thank you goes to my incredible friends. First, to the UWO IR Crew. You’ve been with me through thick and thin, I could not have made it through without you. To my childhood friends, I cannot even begin to thank you for all you are and have done for me. I could never repay the love you’ve given me over more than 20 years. To my UK friends– forever grateful for all you’ve done making the last few years so fun in such existential chaos. You’re the best cheerleaders and pandemic bubble anyone could dream of. To my friends and cohort at UBC– I have learned endlessly from you. You’ve encouraged me to ask the hard questions, seek answers in unexpected places, and at all times centre the voices of the most marginalized in my work. Having this level of support, innovation, and accountability is something I’m forever grateful for. To my family– the words I choose will never be enough. Everything good in me is because of you. I am so lucky. Thank you from the bottom of my heart. In particular, to my grandparents. You taught me a love of exploration (even when it gets us in trouble), to live with boundless curiosity (even if it means asking every server, taxi driver, and stranger on the street we’ve ever encountered to recount their whole life story), how to find the beauty everywhere I go (even in the difficult places), and a deep commitment to sand, unexpected treasures, and the perfect chocolate milkshake. Laughter, curiosity, adventure, and learning sit at the centre of all my memories with you and I am forever grateful for the privilege of being your granddaughter. My words fail entirely on this final front. To those that participated in this study, thank you for sharing your time, wisdom, stories of those you have lost and the lives you are working to rebuild in their memory. You have provided me so much, and I have given you little in return. Your strength, courage of conviction, and an indelible spirit has and will continue to move mountains. You have left an imprint on my heart and I promise to work alongside you for justice, accountability, and a better future. xiv Dedication This dissertation is dedicated to all those who have been lost and the families, friends, and communities who continue the fight for justice and accountability. Your strength and courage in the face of indifference are radical acts of defiance, compassion, and love. I and the world are forever changed by you. 1 Chapter 1: Introduction In the middle of the Afghan summer, as temperatures approached 50 degrees Celsius, I stood in a village in the province of Khost covered in dust mere miles from the border of Pakistan, surveying the damage of an airstrike that killed four members of a family and injured ten. The scene was a disaster. On the fringes, was the 22-year-old son of an entire family who had been killed in the strike– including his mother, father, and two school-age sisters. Through our interpreter he spoke of his heartbreak and anger, and the resentment he felt towards the forces that had perpetrated the attack. In Iraq, I sat alongside a Lieutenant. He told me that two weeks prior his unit had been involved in an action that had seriously injured two children under the age of five. He had been told that one of the children had been required to have their leg amputated. He had a daughter the same age. Even though all the actions that were taken were legal under international humanitarian law (IHL) and the rules of engagement (ROE), he expressed again and again how responsible he felt for changing the course of their lives. In the United States, a Judge Advocate General (JAG) with the US Military’s Central Command (CENTCOM) was explaining the U.S. military’s mechanisms for responding to cases of civilian harm and the role that compensation plays in that process. When asked what these payments were intended for, they were blunt–their motivation was strategic– motivated by counterinsurgency objectives to maintain trust and legitimacy, the need to protect their forces from retaliation, and the reliance on civilians for intelligence on adversaries. Little effort was spent on designing amends programs beyond the basics of incident verification, US military involvement, evaluation of the justification for payment, and (in increasingly rare cases) disbursal of funds – in fact, there are significant questions as to whether they had a positive impact at all. 1.1 The Puzzle On the surface, the links between these issues might seem tenuous, but they are deeply interconnected. Each cuts to the heart of an important debate – in what ways does civilian harm influence military outcomes in armed conflict? How can civilians best be protected? Who holds 2 civilian protection obligations during conflict, and why should they care? How does responding to civilian harm when it does occur figure into the strategic requirement to protect civilians in conflict? And, more broadly, to what extent are ethics of strategic importance in contemporary military strategy? It is estimated that since the Global War on Terror began in 2001, these wars have directly caused the deaths of 897,000 to 929,000 people, including 364,000 civilians.1 Several times as many more are estimated to have died as a reverberating effect of these wars, due to food insecurity, water loss, sewage and other infrastructural issues, and war-related disease.2 Since 2009, there have been increasing commitments made by coalition forces to mitigate civilian harm in irregular conflict. New policy, doctrine, and rules of engagement have been issued, and mandatory regular training across national and coalition partners on the practicalities of protecting civilians in warfare have become increasingly commonplace. While efforts to mitigate civilian harm from occurring have grown, significantly less attention has been paid to what happens when civilian harm does, inevitably, occur. How militaries respond to civilian harm incidents, including the ways they report, investigate, track, and record harm caused, as well as the ways in which they think about post-harm amends, reparations, and accountability matter greatly to protecting civilians and achieving military strategic goals. Yet while scholars and practitioners alike have spent a great deal of time exploring civilian harm mitigation processes, comparatively little work has been done on civilian harm response mechanisms, and particularly civilian harm compensation and amends practices.3 Although civilian harm compensation payments have become commonplace tools used by military forces in recent wars, it remains unclear precisely how much money has been disbursed.4 Accurate figures for the number and amount of compensation payments paid out during coalition operations in Afghanistan, Iraq, and Syria do not exist, but some indicative 1 “Afghan Civilians” Costs of War. Watson Institute of International and Public Affairs. Brown University, August 2022, https://watson.brown.edu/costsofwar/costs/human/civilians/afghan. 2 “Human Cost of Post-9/11 Wars: Direct War Deaths in Major War Zones, Afghanistan & Pakistan (October 2001-August 2021); Iraq (March 2003-August 2021); Syria (September 2014-May 2021); Yemen (Oct. 2002-Aug.2021), and other Post-9/11 War Zones” Costs of War. Watson Institute of International and Public Affairs. Brown University, August 2022, https://watson.brown.edu/costsofwar/figures/2021/WarDeathToll. 3 Ibid. 4 Thomas Gregory, ‘The Costs of War: Condolence payments and the politics of killing civilians’ Review of International Studies 46.1 (2020), 156-176; Nick Turse, ‘Blood money: Afghanistan’s reparations files,’ The Nation, https://www.thenation.com/article/blood-money-afghanistans-reparations-files. 3 figures are available that help to understand the frequency and scale of their use by military forces. For example, a report by the US Government Accountability Office (GAO) in 2007 indicated that coalition forces had paid out more than $30 million in condolence and solatia5 payments between 2003 and 2006.6 Records from 2010 indicate the United States paid out more than 3.7 million in ‘battle damage repairs’ including condolence and solatia payments in Afghanistan, increasing to approximately $12 million in 2011.7 Documents acquired by Wikileaks, the American Civil Liberties Union (ACLU), The Intercept, and, most recently, The New York Times indicate thousands more payments have been made over the past twenty years, totalling hundreds of millions of dollars.8 The majority of available data predominantly point to payments disbursed by the US, a 2021 Ceasefire report documents lengthy though incomplete data drawn from UK Freedom of Information requests and Ministry of Defence reports regarding the United Kingdom’s compensation disbursements from Iraq and Afghanistan. The report documents 6,633 payments provided by the United Kingdom to affected civilians in Iraq and Afghanistan amounting to over £32 million, with the final figure likely to be significantly higher.9 Despite a lack of comprehensive data concerning other Western Coalition partners, currently available public information from the US and UK indicates a likelihood of thousands more payments across Coalition partners during these operations that are still unknown due to national security classifications. Considering the number of likely payments and the amount of money disbursed, very few studies of the use of civilian harm compensation in conflict have been undertaken. Those that do exist have focused predominantly on the ethical and legal issues that surround such practices or on 5 Solatia is a term used by the US military to define payments provided for damages suffered by the civilian population at the hands of US forces if deemed customary in the region and if there is no other applicable legal or funding mechanism to provide these payments. These payments are given to a family as an expression of sympathy, are not a legal admission of guilt, and are generally of a nominal amount. A single paragraph in each service branch’s claims regulation defines solatia. Army regulation 27-20, Paragraph 10-10 provides the authority for the use of these payments by the Army: “Payment of solatia in accordance with local custom as an expression of sympathy toward a victim or his or her family is common in some overseas commands. Such payments are not to be made from the Claims Expenditure Allowance. These payments are made from local operation and maintenance funds pursuant to directives established by the appropriate commander for the country concerned. This applies even where a command claims service is directed to administer the command’s solatia program.” These are often referred to as condolence payments, though condolence payments are now considered by the US to be those payments that are authorized through the Commander’s Emergency Response Fund (CERP). 6 Government Accountability Office, ‘The Department of Defense’s Use of Solatia and Condolence Payments in Iraq and Afghanistan’, https://www.gao.gov/new.items/d07699.pdf. 7 Turse, 2018. 8 See Wikileaks ‘War Diaries’, https://wardiaries.wikileaks.org/; American Civil Liberties Union, The Human Cost-Civilian Casualties in Iraq and Afghanistan, https://www.aclu.org/human-cost-civilian-casualties-iraq-afghanistan; The Intercept, “The Drone Papers”, https://theintercept.com/drone-papers/; The New York Times, “The Civilian Casualty Files”, https://www.nytimes.com/spotlight/the-civilian-casualty-files-pentagon-reports. 9 Roseanne Burke and Mark Lattimer, “Reparations for civilian harm from military operations: Towards a UK policy”, Ceasefire Centre for Civilian Rights, December 2021, https://www.ceasefire.org/wp-content/uploads/2021/12/CFR_Reparations_Nov21_Final-1.pdf. 4 normative questions concerning an emerging duty to provide reparations to civilians harmed in conflict.10 Even fewer have considered the ways in which protecting civilians, and indeed, responding to civilian harm, factor into military strategic considerations, particularly in irregular warfare, such as counterinsurgency or counter-terror operations and, ultimately, whether they actually work.11 Even seemingly basic questions, like ‘Are they effective?’, ‘What do we mean when we say ‘effective?’’ and ‘Who gets to decide?,’ have been left unaddressed. Yet, this lack of investigation is not indicative of a lack of interest. Until recently, very little public data, information, or documentation was accessible on civilian harm incidents in general. Ground-breaking work by the New York Times, Airwars, and PAX for peace has opened the door for analysis of civilian harm incidents with increasing transparency, yet there is still a dearth of documentation on civilian harm compensation specifically.12 With this in mind, this work evaluates the effectiveness of contemporary civilian harm compensation practices as a tool utilized in the strategic pursuit of legitimacy in counterinsurgency operations, asking the seemingly simple question: Do they work? In asking this question, what I am ultimately exploring is not just whether civilian harm compensation practices ‘work,’ but what we mean when we ask this. Policymakers, military leaders, and some humanitarian organizations tout the use of these payments as a positive move by military forces to become more ethical in their approaches to waging war. Amongst military leaders there is widespread implicit confidence that the provision of civilian harm compensation payments are effective and indispensable tools in a counterinsurgent’s toolbox. General David Petraeus, a former commander of the International Security Assistance Force (ISAF) in Afghanistan from 2010 to 2011, famously stated that 10 On normative questions, see Emily Gilbert, “The Gift of War: Cash, counterinsurgency and ‘collateral damage.’ Security Dialogue 46.5 (2015), 403-421; Centre for Civilians in Conflict (CIVIC), ‘Addressing Civilian Harm in Afghanistan: Policies and Practices of International Forces (2010), https://civiliansinconflict.org/wp-content/uploads/2017/10/Addressing_civilian_harm_white_paper_2010; Jonathan Tracy, ‘Testimony before the US Senate Committee on Appropriations Subcommittee on State and Foreign Relations’ https://civiliansinconflict.org/wp-content/uploads/2017/09/2009_04_01_-State-_Testimony_of_Jonathan_Tracy_at_April_1_State_and_Foreign_Operations_Hearing.pdf. On reparations duties and obligations, see Amanda Carroll and Marcus Schulzke, ‘Compensating civilians during war: a place for individuals in international law’ Democracy and Security 9.4 (2013); Saba Bazargan-Forward, ‘Compensation and proportionality in war’ in Jens Ohlin, Larry May, and Claire Finkelstein (eds), Weighing Lives in War (Oxford: Oxford University Press, 2017); Sarah Holewinski, ‘Making amends: a new expectation for civilian losses in armed conflict’ in Daniel Rothbart, Karina Korostelina, and Mohammad Cherkaoui (eds), Civilians and Modern War: Armed Conflict and the Ideology of Violence (Abingdon: Routledge, 2012). 11 Gregory 2020, Daniel Silverman, ‘Too Late to Apologize? Collateral Damage, Post-Harm Compensation, and Insurgent Violence in Iraq’ International Organization 74 (2021), 853-71. 12 Azmat Khan, Lila Hassan, Sarah Almukhtar, and Rachel Shorey, ‘Civilian Casualty Files, New York Times, 2021, https://www.nytimes.com/interactive/2021/us/civilian-casualty-files.html; Airwars, ‘The Credibles,’ https://airwars.org/conflict-data/the-credibles/; Azeem, Saba, Lauren Gould, Erin Bijl, Jolle Demmers, ‘After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija,’ (Colophon, 2022), https://paxforpeace.nl/what-we-do/publications/after-the-strike. 5 ‘money is my most important ammunition in this war.’13 In a landmark document released by the US Army, it is further argued that money is, in fact, a weapons system and a combat multiplier, describing how ‘coalition money is defeating COIN targets’ and condolence payments, in particular, are identified as important ‘non-kinetic weapon system that offers a quick and effective method yielding immediate impact to [local…] people.’14 Some analysts note that such payments in the aftermath of civilian harm contribute to ensuring force protection, decreasing violence in the region and diminishing the likelihood of retaliatory attacks.15 Others argue that such approaches help to mitigate losing population support to insurgents.16 Additional experts point to the reliance of counterinsurgent forces on the civilian population for information and to track insurgents, with payments intended to attempt to salvage these critical information flows.17 Yet despite these justifications, the logic underpinning the ways in which civilian harm compensation payments are envisioned to contribute to counterinsurgency goals remains unclear. Public documentation associated with these payment programmes treats the theory underpinning them as a given, without much elucidation of the underlying logic and process.18 Yet there is little evidence to support the claim that these payments work or have been evaluated for their efficacy. On the contrary, evidence exists of inherent problems with these payments, including inconsistent or non-existent processes, arbitrary determinations on case evidence, chronically low valuations of civilian lives, a distinct lack of empathy, and inconsistent applications of monetary disbursements.19 Civilians who have interacted with compensation processes provide similar perspectives. One man who lost several members of his family in a strike on his home noted the complete lack of a formal process for submitting claims, having to locate and 13 Centre for Army Lessons Learned, Money as a Weapons System, April 2009, https://usacac.army.mil/sites/default/files/publications/09-27.pdf. 14 Centre for Army Lessons Learned; US Forces-Afghanistan (USFOR-A), Money as a Weapons System; Special Inspector General for Iraq Reconstruction, ‘Lessons Learned on the Department of Defense’s Commander’s Emergency Response Program in Iraq, https://info.publicintelligence.net/SIGIR-IraqCERP.pdf. 15 Efraim Benmelech, Claude Berrebi, and Esteban F. Klor. ‘Counter-Suicide-Terrorism.’ The Journal of Politics 77.1 (2015) :27–43; Luke N Condra and Jacob N. Shapiro. ‘Who Takes the Blame?’ American Journal of Political Science 56.1 (2012), :167–87. 16 Patrick B. Johnston, and Anoop K. Sarbahi. The Impact of US Drone Strikes on Terrorism in Pakistan. International Studies Quarterly 60.2 (2016):203–19; Jason Lyall. ‘Are Coethnics More Effective Counterinsurgents?’ American Political Science Review 104.1 (2010), :1–20. 17 Silverman, 2021. 18 See NATO Allied Joint Doctrine for Counterinsurgency, https://www.gov.uk/government/publications/allied-joint-doctrine-for-counter-insurgency-coin-ajp-344a; US Joint Doctrine for Counterinsurgency, https://www.jcs.mil/Portals/36/Documents/Doctrine/pubs/jp3_24.pdf; NATO Allied Joint Doctrine on Joint Targeting, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1033306/AJP-3.9_EDB_V1_E.pdf; US Joint Doctrine on Joint Targeting, https://www.justsecurity.org/wp-content/uploads/2015/06/Joint_Chiefs-Joint_Targeting_20130131.pdf; Allied Joint Doctrine on Stabilization Operations, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/625763/doctrine_nato_stabilization_reconstruction_ajp_3_4_5.pdf; UK Joint Service Publication on Human Security, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/770919/JSP_1325_Part_1_2019_O.PDF. 19 See ACLU, ‘The Human Cost’, 2010; New York Times, ‘The Civilian Casualty Files,’ 2021. 6 repeatedly contact embassy officials to understand where a claim needed to be submitted.20 Others have noted a lack of empathy and respect even where existing processes were formalized. In one case from July 2005 a record of payment made to the husband of a woman killed by coalition forces was made on a government purchase order form. In the ‘Item’ column it noted ‘death of wife’, in the quantity column, the number ‘1,’ in the unit price column, ‘$2,500.’21 Figure 1.1: United States Government Purchase Order Invoice Voucher, July 15, 200522 In yet another case, the family of four individuals killed in an airstrike refused a payment of $9,000 following their deaths, noting that the level of payment proposed was offensive when talking about people’s lives.23 This particular family had, up until the strike been keen supporters of the Coalition forces, previously translating for a US base near their house.24 They shared with me their feelings of anger, betrayal and disrespect as they sought justice and compensation for their loved ones.25 These stories are not unique– each survivor and witness of civilian harm incidents I spoke to over the course of this study expressed the same sentiments– that the way in which civilian harm compensation is currently set up is considered to be complex, difficult to 20 Basim Razzo, interview with author, January 27, 2020. 21 ACLU, ‘The Human Cost’, United States Government Purchase Order Invoice Voucher, July 15, 2005. 22 ACLU, ‘The Human Cost, 2010; Gilbert, 2015, 408. 23 Participant A2 (name withheld), interview with author, February 2, 2020. 24 Ibid. 25 Ibid. 7 navigate, devoid of empathy, offensive, and alienating to survivors, their families, and communities. These perspectives stand in stark contrast to the assumptions espoused by military forces that provide compensation in the aftermath of civilian harm. Namely, that the provision of a compensation payment itself directly contributes to the strategic goals of a counterinsurgency campaign. While these payments do, indeed, have the potential to be a positive mechanism for stabilizing civil-military relations in the aftermath of civilian harm, their operationalization remains underspecified and the logic that underpins them, superficial. Despite this, there is recognition amongst military leaders that these payments must be carefully planned in order to be effective. Again, using the metaphor of civilian harm compensation payments as a weapons system, General Petraeus in the Multi-National Forces (MNF) -Iraq Commander’s Counterinsurgency Guidance recognised that civilian harm compensation payments need to be ‘carefully calibrated to ensure they achieve the greatest effect for each “round” expended.’26 Yet, publicly there is no existing evidence that such calibration has been undertaken to ensure their efficacy. So, what are counterinsurgency forces missing? 1.2 Theory & Hypotheses In counterinsurgency conflict, the convergence of the moral and strategic is often required to achieve mission success. This remains true in the role and intended effect of civilian harm compensation in counterinsurgency operations. In disbursing such payments military forces' primary objective is strategic rather than ethical: to obtain, retain, or regain the legitimacy they have lost as a result of civilian harm incidents caused by their Forces. Despite civilian perspectives sitting at the heart of achieving these aims, counterinsurgents have made significant assumptions about what civilians need and expect in the aftermath of civilian harm.27 As a result, post-harm efforts, including civilian harm compensation payments, have tended to trivialize and devalue the decisive role civilian perceptions of counterinsurgents’ legitimacy have in the determination of counterinsurgency strategic success. Military forces have thus missed an 26 David Petreaus, ‘MNF-Iraq Commander’s Counterinsurgency Guidance,’ https://usacac.army.mil/CAC2/MilitaryReview/Archives/English/MilitaryReview_20081031_art004.pdf. 27 Gregory, 2020. 8 important element of their own theory— the ways in which they respond to incidents of civilian harm are just as important strategically as the ways in which they work to mitigate it. Touted as a powerful tool for counterinsurgents to leverage in their operations, the effectiveness of civilian harm compensation has never been evaluated.28 This project fills that gap, undertaking an ex post evaluation of civilian harm compensation across nine incidents of Western coalition-caused civilian harm in Afghanistan and Iraq from 2001 to present.29 In doing so, I demonstrate that the effectiveness of civilian harm compensation in managing the consequences of civilian harm incidents is directly influenced by Coalition Forces’ ability to meet the needs and expectations of affected populations in the aftermath of civilian harm. It is not enough to just provide a payment; post-harm compensation must be guided by a survivor-centric approach to contribute to counterinsurgency objectives. 1.2.1 The Counterinsurgency Legitimacy Condition In insurgency and counterinsurgency the capture of legitimacy is the sine qua non of success.30 Legitimacy is defined in various ways, but at its core international relations (IR) theorists tend to agree that it is an intersubjective and perception-centric belief that a rule or institution is to be obeyed.31 Scholars like Christian Reus-Smit and Joel Migdal emphasize its normative aspects, arguing that legitimacy is based in the perception of normative ‘rightness.’32 Reus-Smit goes further, arguing that this perception of normative standing informs actors behaviour in terms of respect and compliance, rather than self-interest.33 Thomas Frank further expands on this compliance argument, noting that “legitimacy exerts a pull to compliance which is powered by the quality of the rule or institution and not by coercive authority. It exerts a claim to compliance in the voluntarist mode.”34 For the purposes of this study, legitimacy is defined as the 28 While new guidance in the form of the US’ Civilian Harm Mitigation and Response Action Plan (CHMRAP), this document only provides for future steps regarding mitigation and response processes, it does not represent nor is based on a comprehensive evaluation of civilian harm compensation practices. For more information on the CHMRAP see https://media.defense.gov/2022/Aug/25/2003064740/-1/-1/1/CIVILIAN-HARM-MITIGATION-AND-RESPONSE-ACTION-PLAN.PDF. 29 See Table 1.4: Overview of Cases. 30 David Kilcullen, “Counter-insurgency Redux”, Survival, 48:4 (2006), 111-130 and David Kilcullen, “Three Pillars of Counterinsurgency” Remarks delivered at the US Government Counterinsurgency Conference, Washington, DC, 28 September 2006. 31 Ian Hurd, “Legitimacy and Authority in International Politics,” International Organization 53. 2 (1999), 32 Ian Hurd, “Legitimacy and Authority in International Politics,” International Organization 53. 2 (1999), 159; Christian Reus-Smit, “International Crises of Legitimacy,” International Politics 44 (2007), 159; Joel Migdal, Strong Societies and Weak States: State Societies Relations and State Capacities in the Third World (Princeton: Princeton University Press, 1988). 33 Reus-Smit, 160; Migdal, Joel, Strong Societies and Weak States: State Societies Relations and State Capacities in the Third World (Princeton: Princeton University Press, 1988). 34 Thomas Franck, The Power of Legitimacy Among Nations (New York: Oxford University Press, 1990). 9 intersubjective perception of a rule, organization, or institution which actors believe are desirable, proper or appropriate because of its favourable outcomes and/or procedural fairness and are therefore motivated to respect or comply with a rule or institution voluntarily.35 This perception-centric definition thus includes cognitive and fundamentally relational considerations. It is a condition that cannot be self-fulfilled, is often not granted by a single actor, is centrally dependent on the perception (and misperception) of rules and institutions by referent actors which does not necessarily flow from the predominance or dominance of a particular organization or approach to relations or governance.36 When achieved, it is often viewed as a quality that justifies a power relationship, yet the ways in which legitimacy can be established and its necessary conditions are more wide ranging.37 Accepting legitimacy as a fundamentally relational concept, an insurgency can therefore be thought of as a concerted effort to erode the social contract between the population and state actors by undermining state actors’ legitimacy. Counterinsurgency can then be understood as the concerted effort to deny these objectives to insurgents, by working to obtain, retain, or regain legitimacy and re-establish the social contract with the population.38 Practically, however, we must ask how can counterinsurgents ‘win’ legitimacy? Muthiah Alagappa provides a useful framework to think about this. As insurgent and counterinsurgent actors strive to secure legitimacy in the eyes of the population, it is not just the legitimacy of actors themselves that is being judged, but, as Coleman notes, also the legitimacy of their actions.39 Based on this, Alagappa argues legitimacy can be broken into four key elements that actors must demonstrate alignment with the expectations of the population through their actions: 1. Normative legitimacy (shared norms and values with the population). 2. Procedural legitimacy (conformity with established rules), and 3. Performance legitimacy (proper and effective use of power); to 4. Win the support and consent of the population.40 35 Mark C. Suchman. "Managing Legitimacy: Strategic and Institutional Approaches." The Academy of Management Review 20.3 (1995), 571-610; Robert Jervis, Perception and Misperception in International Politics, (Princeton: Princeton University Press, 1976); John Jost and Brenda Major, The Psychology of Legitimacy (Cambridge: Cambridge University Press, 2001). 36 Muthiah Alagappa. Political Legitimacy in Southeast Asia: The Quest for Moral Authority. (Stanford, Calif: Stanford University Press, 1995). 37 C. Aoi. Legitimacy and the Use of Armed Force, Stability missions in the post-Cold War era. (London: Routledge, 2011). 38 Alagappa, 1995. 39 Coleman, Katharina P. International Organisations and Peace Enforcement: The Politics of International Legitimacy. (Cambridge: Cambridge University Press, 2007). 40 Alagappa, 1995. 10 These determinants of legitimacy provide a framework through which insurgents and counterinsurgents might demonstrate to the population that they have the commitment and capacity to deliver on the population’s expectations of legitimate actors. Yet, as Andrew Gawthorpe has pointed out, while the centrality of legitimacy is well captured in counterinsurgency doctrine, the mechanics of legitimation processes are poorly conceptualized in the strategy and execution of counterinsurgency campaigns.41 Indeed, even military lessons learned processes have failed to sufficiently analyze the operational failings associated with contemporary counterinsurgency campaigns.42 Thus while all major counterinsurgency policy and doctrine established by Western militaries touts that ‘legitimacy is the main objective’, the actual ramifications of this statement are poorly understood and executed in practice.43 This is particularly true regarding the linkage between counterinsurgency success and the protection of civilians. Despite being espoused by coalition forces as the central condition for counterinsurgency success in Afghanistan and later Iraq, there has been little theorization or analysis of the mechanics of the linkage between counterinsurgency success, legitimacy, and civilian protection, nor the conditions on which it is based.44 This study elucidates the theory of change that underpins this conditionality of counterinsurgency success on counterinsurgents’ ability to protect civilians from harm and the role civilian harm response plays in this requirement. In doing so, I seek to understand what risks are posed to counterinsurgency success when civilians are not effectively protected and what counterinsurgents must do to obtain, retain, or regain legitimacy lost in the aftermath of civilian harm. 1.2.2 The Protection Determinant During counterinsurgencies, the civilian population is engaged in a constant cycle of evaluating and re-evaluating the legitimacy of insurgents and counterinsurgents and making decisions about 41 Andrew J. Gawthorpe. "All Counterinsurgency is Local: Counterinsurgency and Rebel Legitimacy." Small Wars & Insurgencies 28, no. 4-5 (2017): 839-852. 42 In September 2021, UK Armed Forces held a series of closed-door lessons learned process in response to the fall of the Afghan government to the Taliban to gather lessons learned and ways forward, while recognizing and accounting for strategic risk as a result of the government collapse. Similar processes occurred in the US and at NATO, with the focus remaining predominantly the terrorist threat rather than insurgency and on understanding the new strategic risks that result from the collapse rather than a focused assessment of lessons learned from the conduct of COIN in the country. For a recent NATO fact sheet assessment, please see NATO, Factsheet: Afghanistan Lessons Learned Process, November 2021, https://www.nato.int/nato_static_fl2014/assets/pdf/2021/12/pdf/2112-factsheet-afgh-lessons-en.pdf. 43 Martijn Kitzen. “‘Legitimacy is the Main Objective’: Legitimation in Population-Centric Counterinsurgency” Small Wars & Insurgencies 28.4-5, 853-866; Andrew Hurrell, “Legitimacy and the Use of Force: Can the Circle be Squared?” Review of International Studies 31 (2005); Herbert Kelman, “Reflections on Social and Psychological Processes of Legitimatization and Delegitimization” in The Psychology of Legitimacy, ed. John Jost and Brenda Major (Cambridge: Cambridge University Press, 2001), 56-7. 44 Ibid. 11 where to lend their support based on these evaluations. Based on new information about the combatants’ wartime intentions and conduct, members of the population consistently update and re-evaluate their beliefs about the legitimacy of insurgents and counterinsurgents along normative, procedural, and performance-based criteria.45 In an effort to win the support of the population, counterinsurgents take actions seeking to demonstrate alignment with the population’s expectations for normative, procedural, and performance-based legitimacy. Such actions may include the provision of essential services, such as food, water, shelter, and basic infrastructural services; establishing the societal conditions for the enjoyment of human rights, including stable governance, free and fair elections; and establishing the rule of law, including by establishing and respecting national legal systems and independent justice and accountability mechanisms, as well as complying with international law; and finally, by acting as the guarantor of the physical safety and security of the population.46 While many issues can contribute to the population’s perception of combatants’ wartime intentions, insurgents and counterinsurgents' relative commitment and ability to protect civilians from harm represents the central issue on which civilians evaluate legitimacy. Civilians in conflict are fundamentally concerned with their survival. Consistent imminent threats to their lives reduce the range of priorities on which they may judge actor legitimacy. In such conditions, legitimacy is largely determined by which conflict actor can rebuild the basics of the social contract between themselves and the population by demonstrating their ability to provide effective protection from imminent physical harm, guard them proactively against threats to their safety and security and mitigate the risk of harm to the population as a result of their own operations. I hypothesize that until such conditions are consistently established and civilians can begin to expect and rely on consistent and effective protection, other key priorities for counterinsurgents that are believed to contribute to building legitimacy such as good governance, social security, education provision, and even access to basic necessities are unlikely to be influence civilians’ perceptions of counterinsurgents’ legitimacy. 45 Silverman 2021; Alagappa, 1995. 46 Daisaku Higashi, Challenges of Constructing Legitimacy in Peacebuilding: Afghanistan, Iraq, Sierra Leone, and East Timor, (London: Routledge, 2015). 12 This begs the question– what if those protection expectations are not achieved? In particular, what happens to a counterinsurgency if efforts to mitigate civilian harm resulting from their own operations fail? Can legitimacy be obtained, retained, or regained in the aftermath? Even assuming counterinsurgents make best efforts to deliver on these protection requirements, it is unlikely given the nature of contemporary conflict that military forces will ever be able to reduce the number of civilian harm incidents to zero. The realities of contemporary counterinsurgencies make this even less likely, with fighting often located in densely populated areas where civilians are often co-located or in close proximity to insurgents.47 Contemporary counterinsurgency forces have made significant efforts to mitigate the impacts of such incidents on the success of their mission, but can the consequences of these incidents, notably a loss of legitimacy in the eyes of the population, be managed in the aftermath and, if so, how? Arguably yes– legitimacy is not only found in perfect ethical conduct, but in behaving ‘legitimately’ as consistently as possible, including when issues arise, mistakes are made, and harm is caused. In short, the consequences that civilian harm incidents pose for the legitimacy of counterinsurgents can be managed by demonstrating conduct aligned with the values of the population even after these values have been unintentionally violated. The premise of this approach to consequence management is thus that legitimacy in counterinsurgency is not only found in conflict actors' decisions about how to legitimately use violence and protect civilians, but also whether they demonstrate alignment with the population’s normative, procedural, and performance-based expectations of legitimate actors when civilian harm does occur. Based on this, I propose the following logic. When a civilian harm incident occurs, the civilian population updates its evaluation of conflict actors based on this new information regarding the responsible actor’s wartime intentions. In the aftermath of an incident resulting in civilian harm, civilians are likely to negatively update their evaluation of the perpetrators intentions. As a result, if counterinsurgents do not act following a civilian harm incident, civilians are likely to re-evaluate their perception of counterinsurgents’ legitimacy. 47 See Peter Maurer, War in Cities: Protection of Civilians in Urban Settings, International Committee of the Red Cross, 25 January 2022, https://www.icrc.org/en/document/wars-cities-protection-civilians-urban-settings; Sahr Muhammedally, A Primer on Civilian Harm Mitigation in Urban Operations, 2022, https://civiliansinconflict.org/wp-content/uploads/2022/07/CIVIC_Primer_CivilianHarm_Mitigation_UrbanWar.pdf; David Kilcullen and Gordon Pendleton, Future Urban Conflict, Technology, and the Protection of Civilians: Real World Challenges for NATO and Coalition Missions. Stimson Centre, 2021, https://www.stimson.org/2021/future-urban-conflict-technology-and-the-protection-of-civilians/. 13 Without intervention, significant risks form with regards to the operational and strategic level aims of the counterinsurgency operation ultimately threatening counterinsurgents’ abilities to demonstrate their legitimacy, win the support of the population, and deny an insurgent victory. To mitigate these implications in the aftermath of civilian harm incidents, counterinsurgents may employ ‘consequence management’ approaches, also known as civilian harm response mechanisms–including civilian harm compensation payments. These actions are undertaken in an effort to retain or regain legitimacy amongst affected communities in the aftermath of a civilian harm incident by redemonstrating their alignment with the population’s values.48 These mechanisms, rather than being motivated by purely ethical or legal obligations, represent a potential solution to an ethico-strategic dilemma– namely how conflict actors can manage the strategic consequences of a civilian harm incident and restore population confidence in their intentions while denying the opportunity for adversaries to capitalize on the incident for their own gain. 1.2.3 The Requirement for a Survivor-Centric Approach However, like with the mitigation of civilian harm, the mere presence of a response mechanism does not necessarily result in restored legitimacy. It is dependent on whether the population perceives the actions undertaken as in alignment with their expectations of a legitimate actor. As coalition forces seek to obtain, retain, or regain legitimacy in the eyes of the population in the aftermath of a civilian harm incident, the effectiveness of response mechanisms, including compensation payments, is determined by whether they are perceived to meet the normative, procedural, and performance-based expectations affected communities hold regarding the counterinsurgency force. Based on this perceived alignment or misalignment between population expectations and the realities of civilian harm compensation mechanisms, affected communities may update their assessment of conflict actors’ wartime intentions again based on their interaction and experience interacting with the response mechanism in the aftermath of civilian harm incidents and use this information to update their perceptions of counterinsurgents’ legitimacy. 48 While there is no formal definition of militaries’ use of the term consequence management, the practices this term refer to in doctrine largely concern the reporting, assessment (including battle damage and collateral damage assessments), investigations, and compensation and amends approaches militaries employ in the aftermath of civilian harm incidents. 14 While coalition forces have made significant progress in recognising the ways in which civilian harm mitigation practices are interlinked with counterinsurgency objectives, there has been a failure to recognize the ways in which civilian harm response mechanisms, including compensation practices, contribute to population perceptions of legitimacy in the aftermath of civilian harm incidents. Recognizing the intersubjective nature of legitimacy, for civilian harm compensation to be effective in contributing to legitimacy-centric counterinsurgency goals, compensation programs must be designed with the needs and expectations of survivors, their families, and their communities at the centre to maintain alignment with the normative, procedural, and performance-based determinants of legitimacy. Without this central commitment, civilian harm compensation practices are unlikely to positively contribute to the stabilization or improvement of civilian perceptions of counterinsurgent legitimacy in the aftermath of civilian harm incidents. To this end, this study argues that the effectiveness of civilian harm compensation practices in counterinsurgency operations can only be achieved when the needs and expectations of survivors, their families, and communities are placed at the centre of post-harm compensation design and execution. If the expectations of affected civilians, their families, and communities are not met during the reporting, investigation, and compensation process, it is unlikely the needs of the counterinsurgents at the tactical and operational levels will be secured and thus unlikely the strategic goals for obtaining, retaining, or regaining legitimacy in the aftermath of civilian harm incidents will be achieved. I evaluate the efficacy of existing civilian harm compensation practices using a survivor-centric theory of effectiveness, interrogating the ways in which the needs and expectations survivors, their families, and communities hold for post-harm compensation engage and interact with the strategic objectives of population-centric counterinsurgency campaigns. The logic of the theory is presented visually in Figure 1.2 below, with a more detailed theory of change (ToC) version elucidated in depth in Chapter 2 to inform the subsequent ex-post evaluations of the selected cases. Beginning from the left side of the diagram, I assume a counterinsurgent-led operation has resulted in a civilian harm incident. In the immediate aftermath of the incident, the affected community negatively updates their perceptions of COIN actors’ legitimacy because of the incident and civilians change their behaviour vis-à-vis counterinsurgent actors following the 15 incident, including through protests and demonstrations, withholding critical support, such as information flows or physical access to key geographical areas, or direct retaliation, amongst other consequences. In response to the change in civilian behaviour and support in the aftermath of the incident, counterinsurgents will attempt to ‘offset’ or manage these legitimacy-centric consequences by engaging in civilian harm response and compensation (CHRC). Importantly, in the aftermath of civilian harm incidents, the goal of CHRC is not to regain the level of legitimacy that has been lost as a result of the incident, it is to stabilize civilian perceptions of counterinsurgents’ legitimacy so subsequent counterinsurgency efforts can continue towards their strategic objectives. Thus, if CHRC is undertaken, counterinsurgents’ efforts could result in counterinsurgency forces retaining some of the legitimacy lost in the incident, but their ‘success’ in doing so is determined by the extent to which their engagement in CHRC processes (including reporting, initial assessment, investigation, and compensation and amends) aligns with affected communities’ normative, procedural, and performance-based expectations of legitimate actors. 16 Figure 1.2: Survivor-Centric Theory of Effectiveness for Civilian Harm Compensation in Counterinsurgency Operations Civilian protection or mitigation failsCivilians negatively update their perceptionsCivilians change their behaviourCOIN actors attempt to 'offset' legitimacy-centric consequences through CHRCCivilians evaluate level of alignment of CHRC with their expectationsCivilians update their perception of COIN legitimacyPositive alignment (effective CHRC)Stabilized legitimacyMeet COIN objectivesMixed alignment (partial effective CHRC)Mixed resultsNegative update (ineffective CHRC)De-stabilized legitimacyFailure to meet COIN objectives 17 In cases where CHRC efforts are undertaken civilians will evaluate the level of alignment of counterinsurgents’ CHRC efforts with the expectations they have of legitimate actors and the needs they have post-incident. Based on the level of alignment between civilians’ needs and expectations and counterinsurgents’ CHRC efforts, civilians will update their perceptions of counterinsurgents’ legitimacy again. With this in mind, three pathways are possible. If positive alignment is achieved (as in the counterinsurgents’ CHRC efforts align with civilians’ normative, procedural, and performance-based expectations of legitimate actors post-incident) then counterinsurgents’ legitimacy may be stabilized in the short- to medium-term allowing continued efforts to achieve counterinsurgency objectives to be viable. However, as depicted in the bottom branch of the Figure 1.2, if CHRC efforts are not undertaken, or they are undertaken out of alignment with civilians’ needs and expectations post-incident, civilians are likely to continue to lose confidence in the counterinsurgents’ stated intentions to protect civilians, resulting in lost legitimacy. They are then likely to re-evaluate the protection options available to them from insurgents, counterinsurgents, and other actors. In light of this negative alignment between counterinsurgents’ CHRC and civilian needs and expectations, civilian communities may recalibrate their tacit and explicit support for counterinsurgency forces, undermining counterinsurgents’ ability to achieve mission critical support from the population. In turn, this shift in support may provide opportunities for insurgents to capitalize on the shift in affected communities’ perceptions of counterinsurgents’ legitimacy. Where results are mixed (as in there is some mix of positive, negative, or neutral alignment between CHRC efforts and civilians’ expectations of legitimate actors post-incident), mixed results are likely—in some cases these circumstances might still provide enough retained legitimacy to offset strategic consequences for counterinsurgency objectives, and in other cases, where the harm and offense caused outweighs the contribution of CHRC efforts, it is unlikely to be able to offset the strategic consequences of the incident for counterinsurgency objectives. In each affected community, civilians will have a range of factors that influence their perceptions of counterinsurgents’ normative, procedural, and performance-based legitimacy during the response process and allow them to re-evaluate the alignment between counterinsurgents’ priorities and their own throughout. Working with communities affected by civilian harm 18 incidents and NGOs, I have identified a range of factors that influence civilians’ perceptions of legitimacy at each stage of the process (these are explained in further depth in Table 2.2). Counterinsurgents’ conduct at each of these stages is evaluated against these factors. In order to conduct this analysis, I have selected nine individual cases of civilian harm to serve as tests of the above hypotheses and the resulting theory of effectiveness. The logic of case selection is discussed in depth in section 1.3.3 of this chapter. Using the hypotheses and factors noted above, I provide a set of predictions for each case under analysis in Table 1.1 below. Using a detailed analysis of factors influencing the effectiveness of civilian harm compensation, each case was assessed as to whether core determinants of effectiveness are met, and a prediction is determined based on the hypotheses above alongside the outcomes observed in the case studies (more detail on these outcomes is provided through the in-depth case studies provided in Chapters 3, 4 and 5). 19 Table 1.1: Predictions for ToC of Effectiveness for each Case # Incident Date & Location Investigation Status Compensation Provided? Civilian Expectations Met? Support Prediction based on the theory (Is support obtained, retained, or regained?) Effectiveness Prediction based on the theory 1 June 26, 2003; Hay al Jihad, Baghdad, Iraq No Partial No No Ineffective 2 Aug 28, 2005; Hay al Adel, Baghdad, Iraq Completed Yes Partial Yes Partial Effectiveness 3 Dec 31, 2006; NE Ramadi, Tikrit, Iraq Completed Yes Yes Yes Effective 4 Feb 12, 2010; Khataba, Gardez, Paktia, Afghanistan Completed Yes Partial No Partial Effectiveness 5 14 May 2010; Kashkaki family compound, Nangarhar, Afghanistan No No No No Ineffective 6 Sept 16, 2012; Noorlam Sahib Valley, Laghman, Afghanistan Completed No No No Ineffective 7 June 3, 2015; Hawijah, Kirkuk, Iraq Completed Yes No No Ineffective 8 Sept 20, 2015; Razzo family compound, Mosul, Iraq Completed Yes Partial No Partial Effectiveness 9 December 20, 2016; Tabaqa, Syria No No No Ineffective Ineffective 20 1.2.4 Assumptions & Scope Conditions This study is predicated on several important parameters. First, and perhaps most importantly, the central argument of this study is predicated on the assumption that the primary goal of counterinsurgencies, and particularly population-centric counterinsurgencies such as those active over the past 20 years in Afghanistan and Iraq, is that of the pursuit of legitimacy, even if this means pursuing operational and tactical approaches that go beyond the traditional roles of military forces, such as the proactive protection of civilians, the establishment of governance mechanisms, and the provision of essential services. Secondly, different types of harm in the context of conflict require different responses, including that which would be categorized as illegal, or grey zone harm, this study only evaluates civilian harm compensation provided in instances of legal harm in armed conflict.49 While international law speaks volumes as to the obligations of warring parties to civilians and the juridical and reparative options that should be made available to them where illegal harm is concerned, it says little of responses and practices actors may undertake where the civilian harm perpetrated was legal or fell in the ‘grey zone’ of legality and illegality. Yet, we know parties to counterinsurgency conflict have engaged in reparative justice for civilian victims of legal harm for centuries, and with increasing frequency since the Korean and Vietnam Wars.50 Though we are aware of this progression in practice, international law has not taken into consideration these shifts or the associated compensation practices. This approach allows me to evaluate the effectiveness of post-harm compensation in the most contentious yet most common context: where conflict is continuous and protracted, the distinction between combatant and civilian is often hopelessly blurred, normative alignment between warring parties is rare, the potential for retaliatory violence is high, and the motivations for providing (and receiving) compensation is mixed. 49 Legal harm is defined more fully in Chapter 2 according to the criteria of just war theory, namely distinction, proportionality, and military necessity. This study will rely predominantly on the official records of the actions identified for analysis and their after-action reports and conclusions to inform most determinations regarding the legality or illegality of harm. However, the author will also undertake further independent analysis of each case using prior case law, international legal precedent, and the perceptions of relevant constituent groups to inform the categorization of the legality of actions in particularly dubious cases. 50 Eduardo Jimenez de Archaga, International Law in the Past Third of a Century, 159 RECUEIL DES COURS 285-87 (1978); G.A. Res. 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, para. 18 (Dec. 16, 2005). 21 Third, this project only considers those payments which are made in a jus in bello context—namely, while counterinsurgency conflict is still active and a struggle for legitimacy is still a guiding strategy of politico-military engagement. The reasons for this are two-fold. First, the realities of counterinsurgency campaigns are that conflict is often protracted with no clear victory condition or defined cessation of hostilities. For example, in both post-2003 Afghanistan and post-2005 Iraq, the aim was not ‘victory’ in the traditional sense, but to contain the insurgency until a point at which national governments and security forces could be rebuilt, regain control, and establish legitimacy.51 With no clear ‘end’ to conflict, undertaking more traditional forms of reparations within the framework of post-conflict or transitional justice mechanisms is incredibly difficult and often an ineffective option for the actors’ involved.52 Further, when post-conflict condolence payments are possible, and are often offered alongside retributive justice mechanisms in post-conflict environments, the author takes the position that given the mix of ethical and strategic motivations at work in the disbursement of civilian harm compensation in counterinsurgency conflicts, in order for a payment to have the desired effects for each of the constituents involved, it must be undertaken in a reasonably short amount of time to ensure: (1) the victim and their families’ needs are met; (2) the desired operational effects can be achieved; (3) the legitimacy and reputation of the institution in the region are upheld; and (4) the morale and welfare of those individuals who caused the legal harm are protected. Further, this study limits its analysis of civilian harm compensation in Western-led coalition counterinsurgency operations to the post-Cold War era, and particularly to the post-9/11 conflicts in Iraq and Afghanistan and (to a lesser extent) Syria. The reasons for this are two-fold. First, condolence payments for lawful harm in modern armed conflict were first used during the Korean and Vietnam Wars, sparingly during the campaigns in Bosnia and Kosovo, and 51 See Sophie van Dijken et al., Monetary Payments for Civilian Harm in International and National Practice,Centre for Civilians in Conflict, 11-31 (Oct. 2013), http://civiliansinconflict.org/uploads/files/publications/ValuationFinalOct_2013pdf.pdf 52 See Chris Rogers, Addressing Civilian Harm in Afghanistan: Policies and Practices of International Forces, Campaign for Innocent Victims in Conflict (2010), http://civiliansinconflict.org/uploads/files/publications/Addressingcivilian-harmwhite.paper-2010.pdf; John M. Darley and Thane S. Pittman, “The Psychology of Compensatory and Retributive Justice,” Personality and Social Psychology Review 42 (2003); John Torpey. Making whole what has been smashed: On reparations politics. (Cambridge: Harvard University Press, 2006); Alexander Barkan. Taking Wrongs Seriously: Apologies and Reconciliation (Stanford: Stanford University Press, 2006); Brian Orend. “Kant’s Ethics of War and Peace.” Journal of Military Ethics 3.2 (2004), 161-177; Marrti Koskenniemi. From Apology to Utopia. (Cambridge: Cambridge University Press, 2006); Priscilla B. Hayner. Unspeakable truths: Facing the challenge of truth commissions. (New York: Routledge, 2002); R.D. Enright. Forgiveness is a choice: A step-by-step process for resolving anger and restoring hope. (Washington, DC: American Psychological Association, 2001). 22 increasingly systematically during the counterinsurgency campaigns in Iraq and Afghanistan (this time by coalition forces). While there is likely relevant historical material on the use of reparations, and specifically civilian harm compensation, in the Korean and Vietnamese cases, its usefulness for assessing the strategic effectiveness of civilian harm compensation in contemporary counterinsurgency is unlikely due to the lack of formal documentation available as well as the shifts toward precision targeting and individual-centric compensation programs in subsequent years. Similarly, while it is acknowledged within the military community that reparations were utilized as part of the wider civil-military relations strategy in Kosovo and Bosnia, there is little to no academic research concerning these disbursements nor their strategic role or justification. Further, given the low level of standardization and institutionalization of payments in recent counterinsurgency conflicts, the existence of testimonies and military records attesting to the effects of such payments are difficult to access. This project strives to fill (some of) these gaps, utilizing existing civilian casualty databases owned by NATO, the United Nations, and independent organizations, as well as thousands of files made available through government leaks (Wikileaks), Freedom of Information Act requests (American Civil Liberties Union (ACLU), The Intercept, Airwars, The New York Times) to map incidents and obtain relevant information, reports and protocols to inform field data collection and analysis. 1.3 Methodology Employing qualitative research techniques, I evaluate why civilian harm compensation has been understood to contribute to counterinsurgency goals and how and in what ways this has (or has not) been achieved. I will demonstrate how Western counterinsurgencies seek to obtain, retain, and regain internal legitimacy in the eyes of the population by engaging with the population’s expectations for protection from harm vis a vis conflict actors. To do so I leverage evaluative research techniques to assess this engagement through the evaluation of a single practice– the use of civilian harm compensation in the aftermath of civilian harm incidents. I elucidate the ways in which military forces and civilians think about the relationship between civilian harm response and legitimacy in counterinsurgency and the ways victim’s needs and expectations influence the effectiveness of this practice in the pursuit of counterinsurgency’s legitimacy-centric objectives. 23 While previous work has studied the strategic nature and effectiveness of these payments, existing research is sparse. Only one academic study exists on the effectiveness of civilian harm compensation payments within counterinsurgency. Using a statistical analysis of micro-level conflict event data on 4,046 condolence payments made by Coalition forces to civilian victims in Iraq from 2004-2008 and matching it with corresponding data on collateral damage and insurgent violence, Daniel Silverman analyzes whether post-harm compensation significantly diminishes local rates of insurgent violence.53 Importantly, he finds a statistically significant relationship between civilian harm compensation payments and reductions in regional violence. However, this analysis, while important, relies on a narrow conceptualization of what ‘effectiveness’ is for civilian harm compensation in counterinsurgency—decreasing local rates of insurgent violence rather than the legitimacy-focused strategic objectives of counterinsurgency campaigns. Further, while Silverman’s analysis can tell us that this relationship exists, it cannot tell us much about why it exists or how to best design compensation programmes to be effective, nor what their effect might be on other key counterinsurgency aims at the operational and strategic level. My research takes this a step further and considers the effectiveness of civilian harm compensation within the wider theory and practice of counterinsurgency’s legitimacy seeking strategy. I look at cases where counterinsurgents seek to secure internal legitimacy from the population by demonstrating their commitment to the protection of the population. However, when proactive protection and mitigation activities fail, they continue to engage in legitimacy seeking behaviours, including civilian harm compensation to obtain, retain, or regain legitimacy in the eyes of the population after a civilian harm incident. My research seeks to understand the counterinsurgency logic that underpins the use of civilian harm compensation to seek legitimacy following incidents of civilian harm and to identify the conditions that influence whether these efforts will contribute to their goals. By developing a theory of change (ToC) and testing it across multiple cases and contexts I will demonstrate that similar logic (or lack thereof) is present across Western counterinsurgency campaigns and helps to explain whether civilian harm compensation will have its intended effect in particular cases. The following section provides an 53 Silverman, 2021. 24 overview of the cases examined in this study as well as the approach and methodology through which I undertook this research. 1.3.1 Approach This project is an ex-post evaluation of the effectiveness of civilian harm compensation as a tool of counterinsurgency strategy, comparing its conditions, process, and outcomes across multiple case studies. Not unlike the methodologies employed by practitioners to evaluate programmatic interventions in the humanitarian and development fields, this study evaluates the effectiveness of contemporary civilian harm compensation in counterinsurgency contexts by undertaking a theory-based evaluation. First developed in 1997 by Pawson and Tilley, these evaluation approaches are predicated on the argument that for evaluative research to be useful for decision making, they need to be grounded in identifying ‘what works in which circumstances and for whom’ rather than just if it works or not.54 They further argue that interventions ‘work’ or do not work because actors make particular decisions in response to the intervention, or lack thereof.55 Vitally, it is the reasoning of the actors in response to the intervention which causes the outcome. Thus, an evaluation of civilian harm compensation in counterinsurgency is not only interested in whether civilian harm compensation causes its intended results, but why and how it might, who gets to decide its conditions and determinants, in what contexts, and in what ways this shapes perceptions of effectiveness and related behaviour. I address these questions by employing a combination of process tracing and qualitative comparative techniques across nine case studies to identify and explore the determinants of effectiveness for civilian harm compensation in COIN strategy. I adopt this combined approach in order to identify key determinants of effectiveness as well as trace the changes these determinants cause within COIN operations using diagnostic evidence. This approach allows me to employ qualitative research in such a manner to be both rigorous in depth and generate systems of evaluation that help to collect data and generate findings across multiple case studies systematically and transparently.56 This approach requires the development of a theory of change 54 Ray Pawson and Nicholas Tilley, Realistic Evaluation (London: SAGE Publications, 1997). 55 Ibid. 56 Carrie Baptist and Barbara Befani, “Qualitative Comparative Analysis– A Rigorous Qualitative Method for Assessing Impact”, Coffey (2015); Charles C. Ragin, The Comparative Method: Moving Beyond Qualitative and Quantitative Strategies, (Los Angeles, University of California Press, 1984). 25 (elucidated in Chapter 2) and the identification of key factors that influence civilians’ perceptions throughout the response process, which guide data collection. During data collection these factors are evaluated in accordance with both their relative importance with regards to affected civilians’ perceptions of counterinsurgents’ actions following a civilian harm incident and also whether the condition was present or absent in the case. This evidence is used to verify whether the presence or absence of these factors leads to intended effects within the counterinsurgency ToC. These steps are reflected in this study. This approach allows me to explore the determinants of effectiveness at multiple levels of the theory of change while also exploring and addressing the interplay between these conditions and the contextual and sequential influences in the process. These steps were undertaken through four phases of work completed between January 2018 and November 2022 and are outlined in further detail below. 1.3.2 Theory of Change (ToC) Development Based on this, a central priority for this study rested in constructing (or, rather, reconstructing) a ToC for civilian harm compensation effectiveness in counterinsurgency operations. Despite nearly twenty years of contemporary civilian harm compensation practice occurring within counterinsurgency environments in Iraq and Afghanistan, no theory as to how such payments contribute to counterinsurgency goals has been elucidated publicly.57 ToCs are widely used in evaluative research and represent the basis for theory-based evaluations such as this study.58 In effect, they take a hypothesis or set of assumptions as to how inputs and outcomes (or variables) are correlated. ToCs are then the detailed models elucidated of how change is expected to happen (ex-ante case) or how change has happened (ex post case) by describing the in-depth causal assumptions that sit behind the linkages between a sequence of steps between how an activity contributes to an impact.59 These steps or linkages between activities and impacts can be thought of as salient, observable events or conditions that are likely to be necessary for a particular causal link in the ToC to be realized.60 57 Gregory 2020; Silverman, 2021. 58 C.L.S. Coryn., Noakes L. A., Westine C. D., Schröter D. C. “A systematic review of theory-driven evaluation practice from 1990 to 2009.” American Journal of Evaluation, 32 (2011), 199–226; Donaldson S. I., Christie C. A., Mark M. M. (eds.). Credible and actionable evidence: The foundation for rigorous and influential evaluations (2nd ed.). (Thousand Oaks, CA: SAGE Publications, 2015). 59 John Mayne, “Useful Theory of Change Models,” Canadian Journal of Program Evaluation 30.2 (2015); John Mayne, “Theory of Change Analysis: Building Robust Theories of Change, Canadian Journal of Program Evaluation 32.2 (2017). 60 Ibid. 26 As ToCs are best developed in a participatory manner involving those designing or implementing the intervention and the evaluator, the theory development phase was conducted through an iterative Theory of Change Analysis (ToCA) to understand and elucidate the ways in which civilian harm compensation is thought to contribute to the overarching strategic goals of contemporary counterinsurgency.61 As the focus was on elucidating the logic of how civilian harm compensation contributed to counterinsurgency goals, the ToCA approach was based on a legitimacy-centric theorization of counterinsurgency strategy and civilian harm compensation as a tool of a population-centric approach. While existing counterinsurgency theory is reasonably robust, in the process of conducting the initial literature review and first stages of the ToCA, it is noted that much of contemporary military doctrine on counterinsurgency strategy leaves significant gaps in terms of the operationalisation of counterinsurgency goals. Chapter 2 takes the theory elucidated in Figure 1.2 and develops it in further detail, including the ways in which civilian harm compensation is thought to contribute to the overall goals of counterinsurgency campaigns, in order to create a useable ToC for the evaluative analysis outlined below. This phase of work focused on triangulating information about the logic of counterinsurgency, civilian harm, and compensation and amends drawing on the archival research conducted in the previous phase and undertaking stakeholder consultations, particularly ToC workshops, to inform ToC development and refinement. A skeleton ToC was developed to frame the discussions undertaken during the subsequent stakeholder consultations. The initial skeleton ToC, as expected, presented with gaps in the overall logic, particularly in terms of the identification of intervening variables at the operational level of counterinsurgencies due to gaps in existing doctrine. In order to fill in the missing logic, stakeholder consultations in the form of three workshops that included a total of 32 participants were undertaken. Participants were drawn from political and military personnel who had previously served in or held responsibility for elements of the counterinsurgency campaigns in Afghanistan and Iraq and NGO and academic experts on counterinsurgency or the protection of civilians. Drawing on Mayne, a behaviour-based ToCA model was employed to frame these stakeholder consultations around the skeleton ToC, with participants led through a level by level analysis of the linkages between the use of civilian harm compensation and counterinsurgency 61 Ibid; Mayne, 2015. 27 goals to further develop the logic and refine the ToC.62 The ToC workshops occurred over three consecutive days via secure video teleconferencing and brought together 32 unique participants (some participants participated in multiple sessions) across three day-long sessions focused on elucidating the strategic, operational, and tactical levels of the ToC. Table 1.2 below provides an overview of the ToC Workshop as well as the types of participants and nationalities represented. Table 1.2: ToC Workshop Overview Focus # of Participants Participant Type Participant Nationality Strategic Level ToC 13 3 Serving Military Personnel with COIN command experience; 6 Retired Military Personnel with COIN command experience; 4 senior civil society experts United Kingdom, Canada, United States, Italy, Germany, Netherlands, Belgium Operations Level ToC 15 4 Serving Military Personnel with COIN operational experience; 9 Retired Military Personnel with COIN operational experience; 2 senior civil society experts Italy, United Kingdom, Canada, United States, Spain, Turkey, Australia Tactical Level ToC 22 5 Serving Military Personnel with tactical level COIN experience; 14 Retired Military Personnel with tactical level COIN experience; 2 senior civil society experts Netherlands, Germany, United States, Spain, Italy, Australia As shown in Table 1.2, this phase of the study focused on understanding the role of compensation in counterinsurgency strategy, the focus was on leveraging the knowledge and insights of military personnel who had commanded or been deployed on counterinsurgency operations at the strategic, operational, and tactical levels to inform the logic of the ToC. Civil society experts on the protection of civilians in conflict were also included in these ToC workshops to provide insights on their observations of effectiveness from engagements with civilian populations in counterinsurgency environments. This workshop produced the ToC which is presented in detail in Chapter 2. 1.3.3 Case Selection This project centres on testing of the theory of effectiveness discussed above through the operationalization of nine cases of civilian harm across three contemporary Western-led coalition counterinsurgency operations in Iraq and Afghanistan from 2001 to present. There are multiple reasons why the country contexts of Afghanistan and Iraq were chosen. The most obvious is the 62 Ibid. 28 importance of these countries in how we think about modern Western counterinsurgencies (and counterterrorism) operations and also in how we think about civilian harm and protection. As the countries that garnered the most active engagement under the umbrella of the Global War on Terror, there are significant similarities and notable differences between the two countries that make them the ideal contexts for undertaking this study. First, the NATO-led counterinsurgency force in Afghanistan and the US-led coalition forces in Iraq have been fundamental in shaping not only the ways in which scholars and practitioners think about and plan counterinsurgency operations, but also in how we design and structure civilian protection approaches in modern warfare. The second reason is practical. Very little information regarding civilian harm incidents is available in the public domain and even less regarding associated compensation processes. At present, even the most detailed information on these incidents and compensation is incomplete. Afghanistan and Iraq represent two countries where enough reliable data exists. Even so, while data in Iraq is more robust, particularly considering recent coalition operations against Daesh in Iraq and Syria, civilian harm compensation records for Afghanistan are much more opaque, with the only data available provided by Freedom of Information Act requests conducted by the ACLU, The Nation, and The Intercept and supplemented by investigative reporting. Even so, this case-based approach provides a rich level of detail well aligned to within-case and across-case comparative analysis when factors and associated evidence is triangulated across existing databases, investigative reporting, interviews, workshops, and focus group discussions. This is particularly important as it can tell us much about the ways in which these payments were considered, implemented, and justified, and the ways in which civilians perceived them over the course of long-term conflicts. Additionally, as these countries represent the first contexts in which contemporary civilian harm mitigation and response practices were developed and implemented, we can begin to understand the thinking behind them, as well as how they evolved in use over time. However, they also provide significant variation in approaches and outcomes because of the formative nature of these conflicts for these practices. Across different areas, different time periods in these conflicts, and different coalition partners, civilian harm compensation has been planned and practiced differently (or not at all), allowing for significant variation in outcomes. Lastly, the conflicts, socioeconomic, socio-political, and cultural 29 environments in Iraq and Afghanistan also provide significant variation in the contextual environment, providing methodological benefits for exploring the ways in which Western civilian harm compensation approaches are perceived by civilian populations. These contexts and their similarities and differences will be discussed in further depth in the empirical chapters. Across these country contexts, I evaluate nine cases across three counterinsurgency conflicts– the Afghan War from 2001 to 2014, the Iraq War from 2003 to 2011, as well as more recent cases arising from the Global Coalition against Daesh’s operations from 2014 to present. I have refined and tested the theory and hypotheses through a pilot study of three of these cases before conducting in-depth analysis on the core of all cases identified. These nine cases evaluated across the pilot and core study are important in their variation. Five consider cases which have resulted in civilian harm compensation to varying degrees, one has resulted in partial compensation, and three have resulted in no compensation. Table 1.3 provides an overview of the selected cases below including the incident date, location, belligerent force, cause, number of civilians killed and injured, and response status, as well as whether data collection and analysis was undertaken during the pilot study or core study. 30 Table 1.3: Overview of Cases Date Location Precise Location Belligerent Cause Civ. Killed Civ. Injured Investigation? Compensation? Iraq War, 2003-2011 June 26, 2003 Baghdad Hay al Jihadi neighbourhood 82nd Airborne Ground (shooting) 1 No Partial Aug 28, 2005 Baghdad Hay al Adel neighbourhood US Coalition Ground (shooting) 1 1 Completed Yes Jan 23, 2007 Tikrit, Iraq FOB Spiecher area, NE Ramadi US Coalition Ground (mortar) 1 1 Completed Yes Afghanistan, 2001-2014 Feb 12, 2010 Gardez, Paktia Khataba Village NATO ISAF Special Forces raid 5 3 Completed Yes 14 May 2010 Surkh Rod District, Nangarhar Kashkaki fam. compound NATO ISAF Special Forces raid 9 Completed No Sept 16, 2012 Alingar District, Laghman Noorlam Sahib Valley NATO ISAF Airstrike 7 7 Completed No Iraq: Global Coalition Against ISIS/Daesh (US led Coalition), 2014-Present June 3, 2015 Hawijah, Kirkuk 35.32081, 43.78322 US Coalition Airstrike 70 80-100 Completed Yes Sept 20, 2015 Mosul, Nineveh 36.38508, 43.12135 US Coalition Airstrike 4 2 Completed Yes Dec 20, 2016 Tabaqa, Raqqa, Syria 35.84667, 38.543889 US Coalition Airstrike 4-5 10 No No 31 These nine cases were selected out of thousands based on several criteria. First, from a purely practical perspective, these cases represent a selection of those for which public records exist and coalition forces have deemed the cases as credible cases of civilian harm caused by coalition forces. As details of civilian harm incidents are often hidden behind security classifications, it is important for this study that details of these strikes exist in the public domain, including location, victims, and details of the strike in order to triangulate information, track down individuals affected or involved, and explore implications. These instances of harm being ‘credible’ incidents perpetrated by coalition forces was also an important measure for narrowing the case pool. Quite simply put, in the fog of war and the chaos of counterinsurgency, it is often difficult to reliably attribute incidents to coalition forces, insurgents, or others without their explicit confirmation. Given this evaluation focuses on the effectiveness of civilian harm compensation in counterinsurgencies, the incidents I explore had to be narrowed to those which had been recognized by coalition forces as attributable to them. Further, it was important in the selection of these cases that those chosen for further analysis were representative of the wider body of cases in various ways in order to yield empirically relevant results. Based on available data, cases were selected to ensure variation across timelines within and across chosen conflicts, regions, type of action, level of harm, and investigation and compensation status. For example, cases analyzed in Afghanistan represent incidents across three provinces resulting from ground operations (two night-raids) and air operations. In the Iraq War, the three incidents analyzed result from ground operations, including a mortar attack and crossfire during area clearance and weapons search operations. Across the cases analyzed during the Global Coalition Against Daesh’s operations, the harm caused by airstrikes varies between four civilians killed to over 70. Across each of these incident investigation and compensation practices, as well as reactions from the affected communities have varied substantially from no or limited response or compensation to more robust practices, allowing for the observance of a variety of approaches and outcomes. 1.3.4 Data Collection Following the theory development phase, I undertook a pilot study using three of the identified cases of civilian harm incidents to identify additional key determinants that were not captured 32 during the literature review or ToCA analysis, test data collection and analysis methods, and further refine the theory. This was particularly important for this study as public information regarding these case studies is limited. As civilian harm response approaches have been developed, changed, and evolved over the past twenty years, for some cases investigations were never started, surviving family members were never contacted or provided information on the claims process and, in some cases, have no idea what happened to their loved one or why. Given the limited information and emotional and ethical sensitivity involved in these cases, I developed the data collection approach with this in mind. For each case, I followed the same approach to data collection. Once I identified each case of interest, I would search for and analyze the available information across open-source channels, cross-referencing information held across multiple existing civilian harm databases available through Airwars, the Iraq Body Count, UNAMA, NATO ISAF, as well as documented in FOIA data available through the ACLU, The New York Times, The Intercept, and The Nation and in further investigative reporting. Using this information, I identified key details about the incident and allegations, possible victims and survivors, the military forces involved, the available intelligence, geolocational targets or areas, what the target was thought to be by the military forces, satellite imagery before and after the strike, and any other relevant information regarding the incident. Using this information, I began by interviewing (retired) military leaders and operational and tactical level personnel familiar with operations in the area in question during that particular time frame. In these interviews, I explored with them the intent and strategic focus of COIN operations in the area during the time of the strike, the focus of operational level aims and their relative importance, the ways in which these aims were pursued tactically. This provided a frame as to what objectives Western forces were working towards and helped to place the incident in strategic context. Where those interviewed had specific strategic, operational, or tactical knowledge of the incident in question we then discussed the incident within that context. I then explored their perceptions of the ways in which such an incident influenced operational and strategic objectives, the rationale behind the use (or lack thereof) of civilian harm compensation in the aftermath, and the relative impact civilian harm compensation effectiveness or ineffectiveness would have on identified priorities at the tactical, operational, and strategic levels. 33 Following these interviews, I then sought to identify civilians affected by the strike and any additional witnesses. In some cases, this was done with relative ease, in other cases, the process took months or years to track families and eyewitnesses down. Still in others, I was not able to locate the civilians affected, and thus the cases are presented based on official statements, existing reporting, documentation, and interviews conducted during investigation processes, and documented interviews carried out by others. For those I was able to identify, I reached out to them either directly or through a trusted contact. I asked if they would consider participating in an interview regarding their experiences and their perceptions regarding the civilian harm response process associated with the incident, particularly the investigation and compensation process. In doing so, I was rigorous in explaining my research objectives and how their words and any information they provided me might be used. Many were keen to talk, others wanted to leave the past in the past. For those I was able to interview, our discussions focused on better understanding their experience of the incident itself, as well as any response undertaken by Coalition Forces, including their perceptions of the response and compensation process. I queried specific aspects of the response approach, exploring their perceptions of each stage they experienced in terms of: 1) Their perceived intent and effectiveness; 2) What factors within these processes were most important to them in thinking about effectiveness or ineffectiveness; 3) The extent to which these identified factors were present or absent in their experience of the response process. The interview approach was carefully planned to account for the sensitivity of the incidents and participants’ experiences of them and the response processes, the security implications that may result from speaking with a Western researcher, and the potential impacts of the interview and associated study in mind. In order to mitigate some of the security risks as well as limitations on travel to field sites due to the COVID-19 pandemic, some of these interviews were conducted via secure telephone calls or video teleconferencing. Once initial interviews were complete, I employed snowball sampling, particularly with cases that involved harm caused to multiple 34 families, asking participants to help me identify and connect with others impacted by the incident. An overview of the research ethics approach that guided this work is outlined in the next section. An overview of the interviews conducted, including the participant type, location of the interviews, and number of interviews conducted, is included in Table 1.4 below. Table 1.4: Overview of Interviews Conflict Interviewee Type Location Notes # Interviews Iraq, 2003-2011 Civilian United Kingdom; Iraq; Telephone 11 individuals in Iraq 11 Military Personnel or Veteran Belgium; Italy; United Kingdom; Video Teleconference 4 current members of Italian military; 2 current British Armed Forces; 2 retired British Forces; 2 current United States, 2 retired United States Armed Forces 12 Strategic Level Decisionmaker Belgium; Secure Video Teleconference 1 retired British Forces, 1 retired Canadian Armed Forces; 1 retired American Armed Forces 3 Afghanistan 2001-2017 Civilian Netherlands; Afghanistan; Telephone/Video Teleconference 5 individuals who have left Afghanistan; 4 individuals in Afghanistan 9 Military Personnel or Veteran United Kingdom; Canada; Video Teleconference 3 retired members of the Canadian Armed Forces; 2 serving US forces; 4 retired US forces; 4 serving UK forces 12 Strategic Level Decisionmaker Video Teleconference 2 UK military strategic commanders; 2 retired US strategic commanders; 1 retired Canadian strategic commander 5 Iraq 2015-present Civilian Germany; Netherlands; Secure Video Teleconference 11 individuals in Iraq; 3 individuals who have left Iraq 14 Military Personnel or Veteran Netherlands; Belgium; Italy; Secure Video Teleconference 3 retired British Forces, 3 retired American Forces 6 Strategic Level Decisionmaker Belgium; Secure Video Teleconference 1 retired British Forces; 1 retired American Forces 2 TOTAL NUMBER 76 Given the implications of conducting interview research with military personnel and civilians impacted by civilian harm incidents in conflict, it seems necessary to address the rationale behind this approach. Interviews can provide a level of detail and granularity about these 35 incidents and their associated compensation processes that is currently unavailable in open-source materials. This is particularly vital information to collect for this study in order to understand the core factors or determinants of compensation effectiveness in COIN operations for several reasons. First, due to the volatile nature of many of the areas in question, even when payments were authorized by allied commands, the “policies were not clear or standardized” and units were not required to pay them so not all units did.63 Additionally, particularly in Iraq, there was often a lack of awareness about such payments and confusion about how to receive them. Similarly, Canadian Armed Forces personnel have noted that even when these payments were authorized the funds would often be provided by Western forces and the equivalent funds or amount in food sustenance or farm animals would be administered by Afghan National Army (ANA) personnel and thus, not necessarily reliably tracked.64 Additionally, as General Gordon-Bray notes that “his team sometimes sought out surviving family members personally after a death, but soldiers also left cards behind after operations explaining how families could make claims, and other times the onus was on the victims to identify the unit that had caused the damage, to collect evidence, and to bring it to the military’s attention.”65 Thus there often was not an existing formal system for initiating investigation and claims processes communicated to those affected, nor a publicly available formal paper trail to analyze. Further, in both Iraq and Afghanistan, there was a distinct lack of consistency in the level of payment. Early on in Iraq and Afghanistan this was largely due to a lack of standardization, but later in the missions this was also often due to a lack of funds left in the budgets allotted for condolence payments. A military lawyer who served in Iraq said, “two Iraqis who suffered substantially the same harm in different areas of the city would be treated very differently depending on the office they went to inside Baghdad to file their claim.”66 The lack of standard rules and lack of funds “caused a lot of heartache.”67 Additionally, due to the security risks of providing monetary payments to both the soldiers disbursing funds and the civilians to which the payments were being disbursed, such disbursements were often made in the form of rice, grain, 63 Tracy, 2009. 64 See Megan McCloskey, Mike Tigas, Ryann Grochowski Jones, Sisi Wei, Jeff Larson and Ingrid Burrington, ‘How US Commanders Spent $2 Billion of Petty Cash in Afghanistan’, ProPublica, May 15, 2015, https://projects.propublica.org/cerp/. 65 Tracy, 2009. 66 Ibid. 67 Ibid. 36 or various high value farm animals that could provide longer-term livelihoods. Additionally, many, if not most, of these payments were made by tactical or operational-level military personnel directly to victims, families, or community leaders. As a result, data concerning affected populations, military personnel involved, and the amounts and dates of the payments is often difficult, if not impossible, to locate through open-source records. Interview research is well placed to help elucidate these issue areas that are not captured in formal records and open-source resources. 1.3.5 Analysis and Theory Testing Following data collection, insights from the theory development phase, interviews, and archival research are mapped against the identified determinants and the theory of change to discern the importance of a factor assigned by workshop and interview participants and the perceived influence of a factor on other dependent factors of the theory. Using this information, I then determined the likelihood that the factor in question would have a positive, negative, or neutral influence on achieving the related counterinsurgency requirements in the ToC at each level of the theory. Once this analysis was completed in each case, these insights on the relative importance, influence, and fulfilment of each determinant were factored into the ToC model, providing insights as to the impact individual and community-level perceptions and expectations had on tactical, operational, and strategic level counterinsurgency legitimacy-centric outcomes in each case. Drawing on these insights, the next task was presenting these findings in the case study chapters. Existing counterinsurgency theory has largely negated the centrality of the civilian as a unit of analysis. Existing approaches negate the potential role civilian’s experiences of civilian harm and their perceptions of counterinsurgency forces in the aftermath of these incidents may play in counterinsurgency success. As Jenny Edkins, Thomas Gregory, and Katherine H.S. Moon argue, albeit in different contexts, this is ‘a politics that misses the person, a politics that objectifies and instrumentalizes’ because it treats people as objects that need to be classified, managed, and administered rather than unique, singular and irreplaceable beings.68 While the analysis 68 Katherine H.S. Moon, Sex Among Allies: Military Prostitution in U.S.-Korea Relations, (New York: Columbia University Press, 1997); Jenny Edkins, Missing: Persons and Politics (Ithaca: Cornell University, 2011); Thomas Gregory, ‘The Costs of War: Condolence payments and the politics of killing civilians’ Review of International Studies 46.1 (2020), 156-176. 37 generated through this study is compelling on its own, a key focus of this research has been on foregrounding the voices of civilians and demonstrating the influence that their perceptions of civilian harm response and compensation efforts have on the legitimacy-centric goals of counterinsurgents. To this end, the case study chapters take a narrative approach, interweaving contextual information, civilian and military perspectives, and the new data captured through this study to build a comprehensive picture of the experiences of civilian harm response and compensation mechanisms in each case. 1.4 Ethics69 Undertaking research on civilian harm caused by military operations requires an approach that is cognizant of the ethical risks engaging in such research may present both to the researcher and study participants. Working with participants in areas of Iraq and Afghanistan, individuals and communities already interact with a significant amount of risk in their everyday lives due to ongoing violence and the presence of armed groups. Similarly, the risk to Western forces and researchers in many of these areas is high due to anti-Western sentiment, insurgency, and terrorist forces. The potential to exacerbate these existing risks and place both civilian and military participants and myself as a researcher at risk was particularly high given the sensitivity of the subject matter. Yet there is a distinct value for conducting first hand research on these topics and in engaging with affected communities to do so.70 These approaches provide unique policy relevant insights which can provide important guidance for future counterinsurgency practice, especially when the research focuses on the knowledge, experiences, and perspectives of communities which are often overlooked in contemporary knowledge and practice. This section provides an overview of key ethical considerations for this study, and the ways and which this research approached and reconciled them. 1.4.1 Safety & Security Victims, survivors, and eyewitnesses to civilian harm incidents face significant vulnerabilities in their everyday lives and considerable care was taken to avoid exacerbating those risks through this study. Not only are there significant risks posed to their physical safety and security daily, 69 The empirical research undertaken and reported in Chapters 2 to 4 are covered by UBC Ethics Certificate H19-02418. 70 Jesse Discroll and Caroline Schuster, “Spies like Us,” Ethnography 19.3 (2017); Rodríguez, Clelia. 2017. “How Academia Uses Poverty, Oppression, and Pain for Intellectual Masturbation.” RaceBaitR, http://racebaitr.com/2017/04/06/how-academia-uses-poverty-oppression. 38 but the risk for (re-)traumatization due to the focus of the study was significant. Additionally, this research also engages with military personnel some of whom are deployed to high-risk environments where retaliation for their role in some incidents or their participation in this study may pose risks to their safety and security and they may encounter risks to their job security if their participation was made public. While the risks which victims, survivors and eyewitnesses are drastically different from those that exist for serving and retired military personnel, both needed to be accounted for and mitigated in this study. Victims, Survivors, and Eyewitnesses Academics report the ease with which vulnerable populations can be accessed in fragile and violent contexts, something I found to be resoundingly true when exploring the impact of civilian harm on Afghan and Iraqi civilians.71 There are very few protections in place for these individuals to ensure their privacy and security when researchers and journalists come knocking. Yet, including their perspectives in this research was and remains a vital part of exploring the effectiveness of civilian harm compensation, particularly in understanding the impact such programs have had on them and their families and communities, and their perspectives on whether and how they work. With the risk for these participants' physical safety, privacy and (re)traumatization in mind, I took several steps to ensure their protection over the course of this study. First, all interview participants in this study are anonymized unless a participant specifically requested to be named. Where their identities were already a matter of public record, they were still given the choice as to whether they wanted to be identified in this study. Second, the cases were selected specifically based on meeting at least one of the criteria below: 1) The ability to ensure appropriate safety and security protocols could be put in place to protect participants, 2) Participants were now based in safe third country (i.e., as a refugee or asylum seeker) that posed fewer risks for their participation, or 71 Kate Cronin-Furman, & M. Lake. “Ethics Abroad: Fieldwork in Fragile and Violent Contexts.” PS: Political Science & Politics 51.3 (2018), 607-614. 39 3) Participants could participate using secure telephone or video teleconference technology from a safe place. Third, while many participants were happy to talk to me, others noted that they would rather leave the past in the past, and their decision not to participate was respected. For those that did engage in the study, I started each interview making the aims of the study as explicit as possible, as well as what I hoped to achieve with the study and how realistic those aims are, describing where their words may appear, and making clear that anytime their words might be used in a publication now or in the future, they would be asked for their consent. This initial conversation was particularly important in clearly addressing expectations as well as clearly separating myself as a researcher from aid and military organizations with which I had previously worked or those which had helped to facilitate access in various communities. As Lake, Muthaka, and Walker note, many participants who have engaged in this kind of research express hope that support would result from sharing their stories with researchers.72 Addressing these issue areas as well as how their voices, perspectives, and stories would be used up front helped to avoid miscommunication or misplaced expectations. Finally, interviews with participants were approached with considerable caution as the risk for (re)traumatization was significant. Interview questions were carefully structured to focus not on the civilian harm event itself but on the response phase, including investigation and compensation. Further, participants were reminded throughout that they could pause or end the interview at any time and choose which questions they responded to at their leisure. This said, as previously noted by Cronin-Furman, the readiness with which interviewees disclose their experiences as victims of trauma is rife and was similarly seen in this study. Many participants I interacted with willingly divulged these types of details beyond the scope of interview questions. Oftentimes, it seemed as if participants were keen for someone to listen and at times, I was expected to comfort them or was thanked for listening and providing a forum for them to discuss the issues they encountered when seeking compensation in the aftermath. This in and of itself poses its own ethical issues which are difficult to avoid in field research. I, nor many social 72 Milli Lake, Muthaka, Ilot, and Walker, Gabriella. “Gendering Justice in Humanitarian Spaces: Opportunity and (Dis)empowerment Through Gender-Based Legal Development Outreach in the Eastern Democratic Republic of Congo.” Law & Society Review 50.3 (2016), 539–74. 40 science researchers are trained to provide psychosocial support in the aftermath of trauma. The geographical areas from which participants engaged with the researcher were vetted beforehand to ensure psychosocial and social support services were available and freely accessible to all participants should they need them. Information and details regarding these support services were made available to participants at the end of each interview. Military Personnel The military personnel that engaged in this study also encountered risk, albeit differently. For those that either previously, currently, or in the future may deploy to the areas in question, there is a high risk of retaliation against them if they are identified as having participated in civilian harm incidents or even publicly identified by name as members of the armed forces. Additionally, due to the sensitive nature of many of these incidents, even when information about them is not classified, speaking publicly with researchers would likely result in negative impacts on individuals’ treatment in the work environment, career progression, and job security. Anonymization was important for military personnel as well, ensuring that their privacy, safety, and security was not jeopardized by their participation. Additionally, many military personnel that participated in this study have encountered struggles with their mental health, including moral injury and post-traumatic stress disorder (PTSD) in the aftermath of their deployments to Iraq and Afghanistan.73 With this in mind, workshops and interviews with these individuals had to be approached with abundant caution. The focus of workshops and questions raised in interviews were carefully cultivated to avoid as much as possible the potential for (re)traumatization and psychosocial and social support services were identified and made available to all military participants during and following their participation. Researcher & Research Partners This research took place across different countries and different venues of engagement and thus researcher safety and security were a priority throughout. Researchers engaging in field-focused 73 See Kent D. Drescher et al., “An Exploration of the Viability and Usefulness of the Construct of Moral Injury in War Veterans,” Traumatology 17 (2011); Captain Gordon B. Baldwin, A New Look at the Law of War: Limited War and Field Manual, Military Legal Review 4 (1959); Jacob K. Farnsworth et al., “The Role for Moral Emotions in Military Trauma: Implications for the Study and Treatment of Moral Injury,” Review of General Psychology 14 (2014). For an example, see Dexter Filkins, “Atonement: A Troubled Iraq Veteran Seeks Out the Family He Harmed,” New Yorker (Oct. 9, 2012), http://www.newyorker.com/magazine/2012/10/29/atonement. 41 studies face a range of risks while planning and conducting their research including targeting for robbery, kidnapping, and sexual assault, alongside the inherent risks of operating in unstable areas such as terrorist attacks, violent unrest, and open conflict. There are also significant risks with emotionally difficult research topics and highly volatile environments for long-term mental health trauma. With these risks in mind, I took several precautions in planning and undertaking my research. While this study undertook some field work to conduct interviews, these were limited due to the COVID-19 pandemic, and most of the participant engagement occurred over secure telephone and video teleconferencing platforms removing much of the physical risk posed to the researcher. Where field work was undertaken, I worked alongside nongovernmental organizations (NGOs) and military partners trusted in each region to ensure my safety and security. While I had previously operated in these environments due to prior work, I also undertook Hostile Environment Awareness Training (HEAT) as well as additional modules on cultural awareness and interaction, negotiation, and situational awareness to ensure I was well prepared. In the field, most workshops and interviews took place either in designated safe spaces, such as community centres in major cities or military bases or were conducted via secure telephone or video teleconferencing platforms. A significant ethical risk of any field-centred research is the positionality and risk that is introduced as a result of being a white, Western woman conducting research in foreign conflict-affected countries. A useful strategy to mitigate this is to work closely with trusted contacts and NGOs with deep cultural and regional knowledge in the area of study. Having worked alongside NGOs and trusted contacts in both Afghanistan and Iraq to facilitate this research, there are also inherent risks to be mitigated in pursuing this approach. First, while many of the ethical issues associated with positionality can be mitigated by working with local research partners, they can also be exacerbated in the same way– in many circumstances these relationships can be exploitative, particularly given the low wages many Western researchers provide their local research partners, and often differing ethical standards for conducting or collaborating on research can come into play. With this in mind, I worked alongside eight local contacts and two NGOs in Afghanistan and Iraq that (1) had the appropriate language and cultural skills, (2) were trusted by the communities they worked with, and had spent at least 5 of the last 10 years living and working in the country; (3) had robust research training (in my case, each of my contacts had 42 completed at least a Master’s degree). I then trained them on my data collection methodologies and the required ethical standards and observed all interviews if it was determined it was best that they lead the discussion. All interviews with female participants were conducted by two females, all interviews with male participants were conducted by either two males or me and a male to ensure cultural expectations were met and safety and security were ensured. All partners were paid fair compensation in line with market rates for research services at international NGOs. They were obligated to abide by the same safety and security expectations as those established for the researcher. 1.4.2 Distanced Research (COVID-19) As this project’s data collection phase overlapped with the COVID-19 pandemic, significant adjustments needed to be made to data collection methods (which were originally intended to be largely field-based) considering these developments. As Mwambari, Macamo and Cave and Sloan note, every crisis presents a new opportunity to re-think research practice as it opens a process of redefinition and adaptation.74 Similarly, as Lawrence noted, many researchers, including myself, needed to pause and reshape their projects and methodologies to accommodate our new reality.75 For this project, this meant a pivot from a largely field-based data collection strategy to one largely focused on data collection through online platforms, particularly secure video teleconferencing, though some field work was completed in early 2022. Yet there are implications to taking this research online, including ethical challenges such as state surveillance, digitalization of suffering, and the recalibration of power in research relationships.76 Additionally, in doing so, the risk of reductive research is high as key information learned from environmental immersion and lived experience is lost.77 Distanced research such as this thus has some very significant limitations, but in the process of this 74 O. Abedi Dunia, Eriksson Baaz, M., Mwambari, D., Parashar, S., Toppo, A. O. M., & Vincent, J. B. M. (2020). “The Covid-19 Opportunity: Creating More Ethical and Sustainable Research Practices,” https://items.ssrc.org/covid-19-and-the-social-sciences/social-research-and-insecurity/the-covid-19-opportunity-creating-more-ethical-and-sustainable-research-practices/; D. Mwambari,, A. Purdeková, and A.N. Bisoka. “Covid-19 and Research in Conflict-Affected Contexts: Distanced Methods and the Digitalisation of Suffering,” 2021; M Cave, SM Sloan (eds), Listening on the Edge: Oral History in the Aftermath of Crisis. (Oxford: Oxford University Press, 2014); E.S. Macamo, The taming of fate: approaching risk from a social action perspective case studies from Southern Mozambique. (Dakar, Senegal: CODESRIA, 2017). 75 L. Lawrence, Conducting cross-cultural qualitative interviews with mainland Chinese participants during COVID: lessons from the field. Qualitative Research (2020). 76 A. Purdekova. ‘Mundane sights’ of power: the history of social monitoring and its subversion in Rwanda. African Studies Review 59.2 (2016), 59–86; T.W. Workneh. ‘Digital cleansing? A look into state-sponsored policing of Ethiopian networked communities.’ African Journalism Studies 36.4 (2015),102–124. 77 Cronin-Furman & Lake, 2021. 43 research, was in some ways beneficial to the study. It allowed for more safety, security, and anonymity for participants, who did not have to meet with me in person and it allowed for a more equal approach to research partnerships I held and building trust with local partners in a new and different way. They (and I) could be more discerning about the risks of travel for data collection as well as decreasing the risk of exposure or spread of COVID-19. It is useful to keep in mind this context while engaging with this research, and while distanced research offers many opportunities, I hope the future iterations of this project will be able to engage in more substantial field-based research. 1.4.3 Relevant and Impactful Research Finally, there is a significant tension between the desire of researchers to engage in field-centric research and engaging with vulnerable communities.78 In particular, Helbart et al. ask whether there is a rationale and a justification for entering these spaces and analyzing the details of conflict and human despair without any apparent academic usefulness. I take this one step further, ultimately viewing research in this domain, which is inherently extractive, as needing to provide utility not only to the academy but also to the development of more effective policy and more beneficial practice for the communities which were the focus of the research. D’Errico et al. notes the visible frustration participants in their study reported when academic research failed to deliver local benefits, with participants arguing that ‘[t]hey [researchers] say they can’t pay us [for research] because that would be unethical, but they take our dignity for free.’79 With this in mind, this study was designed from the outset to address these pitfalls. Through multiple consultations with civilian communities impacted by incidents of civilian harm, a framework for presenting their perspectives and expectations has been co-constructed to inform this study. A key priority for civilians I spoke with was elevating their voices in their own words as much as is possible, and ultimately, in working to influence existing civilian harm mitigation and response policy and practice to better address the concerns, needs, and expectations of those impacted. 78 Sascha Helbardt, Dagmar Hellmann-Rajanayagam, and Rüdiger Korff. "War's Dark Glamour: Ethics of research in war and conflict zones." Cambridge Review of International Affairs (2010), 349-369. 79 Nicole C. D’Errico, Kalala, Tshibangu, Ciza Nakamina, Joseph, Kalisya, Luc Malemo, Bukundika, Paulin, Maisha, Felicien, and Nzigire, Bashige. “‘You Say Rape, I Say Hospitals. But Whose Voice Is Louder?’ Health, Aid and Decision Making in the Democratic Republic of Congo.” African Journal of Political Economy 40.135 (2013), 51. 44 In the subsequent chapters I foreground the perspectives that have often been neglected and overlooked in the conversation around civilian harm compensation– civilians and military personnel themselves. Echoing the work of feminist scholars such as Annick Wibben, Elizabeth Dauphinee, and Katherine H.S. Moon, I leverage a narrative approach within the case studies to demonstrate that civilians' knowledge, perspectives, and expectations are directly involved in and influence counterinsurgency outcomes.80 Narrative approaches can be particularly useful when using research to elucidate accounts, experiences, perspectives and perceptions that offer a differing view from a dominant security narrative.81 As Polkinghorne argues, experience is an integrated construction, produced by the realm of meaning, which interpretively links recollections, perceptions, and expectations.82 Understanding the centrality of population support in counterinsurgency strategy, the recollections, perceptions, and expectations of civilians in the aftermath of civilian harm incidents is a central determinant of counterinsurgents’ ability to achieve their legitimacy-centric goals.83 To this end, these accounts from victims, survivors, and eyewitnesses are woven together alongside key documentation and the above analysis to present narrative-based case studies. 1.5 Structure In order to systematically interrogate the relationship between the effectiveness of civilian harm compensation and counterinsurgency strategy this study will proceed as follows. The second chapter will elucidate the central argument and theory of this study in detail by first exploring the conceptual and definitional parameters of key concepts in further depth. I explore the existing literature concerning counterinsurgency, and its subset, population-centric counterinsurgency. I will also explore the pathways for seeking legitimacy in population-centric counterinsurgency, and elucidate its normative, procedural, and performance-based conditions. Similarly, I will explore the interrelated conceptualisations of combatants and civilians, and military forces’ obligations to protect civilians during wartime under international humanitarian law (IHL), as well as the civilian harm mitigation and response activities they may undertake to deliver on these aims. This chapter also provides a review of existing literature on the utility of reparations 80 See Annick Wibben (ed), Researching War: Feminist Methods, Ethics and Politics (Abingdon: Routledge, 2016); Elizabeth Dauphinee, The Ethics of Researching War: Looking for Bosnia (Manchester: Manchester University Press, 2007); Moon, 2007. 81 Ibid. 82 D. Polkinghorne. Narrative knowing and the human sciences. (New York: StateUniversity of New York Press 1988). 83 Ibid. 45 during and after armed conflict, and the ways in which this study seeks to add to this work. Finally, leveraging the literature and documentation review undertaken, as well as the outcomes of three ToC workshops, this chapter presents the civilian harm compensation effectiveness TOC that underpins the analysis presented in the empirical chapters. Following this are three empirical chapters that operationalize the ToC and evaluation framework elucidated in Chapter 2 to analyze the effectiveness of civilian harm compensation in across three contexts where Western counterinsurgencies have been active in the past two decades– the first Afghanistan, 2001-2017, the second Iraq, 2003 to 2011, and the third Coalition operations in Iraq and Syria, 2014 to present. These chapters will demonstrate that despite significantly different contexts, varying types of insurgent actors, and counterinsurgent approaches, similar processes and pitfalls are present across each case when it comes to the effectiveness of civilian harm compensation and its intended effects. In the concluding chapter I present the findings of the empirical analysis, provide options for further research as well as policy recommendations for the future of civilian harm compensation and its role in counterinsurgency operations. 46 Chapter 2: Civilian Harm Response in the Legitimation Logic of Counterinsurgency Establishing Civilian Harm Response as a Determinant of COIN Strategic Success “When well spent, condolence payment [CERP] funding convinced Iraqis that the coalition was truly committed to their well-being, increased the flow of intelligence to commanders and soldiers about hostile actors in the community, and improved security.” - US Joint Staff, Briefing of the Senate Appropriations Committee on the Use of Condolence Payments in Iraq 2.1 Introduction Rising out of the banks of the River Tigris 130 kilometres north of Baghdad, Samarra is an ancient city, its foundations dating back to prehistoric times. Known for its historical importance as a social, cultural, and military centre of power in the Islamic world, it is one of Iraq’s four Holy Cities and home to a UNESCO World Heritage Site.84 Today, the city is known for two things: its 9th-century mosque with its unique spiral minaret, and the overwhelming violence and loss of life that has taken place within its bounds. Over the past twenty years of conflict during the Iraq War and the anti-ISIS offensive, Samarra has been a centre of violence, a hotbed of militia activity, and one of the most dangerous places to be a civilian in the world. The city, which is famous for its Shi’ia holy sites, was traditionally and until recently, dominated by Sunni Arabs, and at various points throughout the Iraq War and after, tensions between these communities boiled over, resulting in the bombing of the al-Askari Mosque, and attacks which have claimed hundreds of lives.85 These intercommunal struggles were also occurring alongside violence associated with the Iraq War between the 2003 invasion by US-led coalition forces and 84 Irina Bokova, Cultural Heritage in Iraq, World Heritage, Special Issue: Iraq’s Heritage– A Treasure under Threat, i. 85 Jonathan Steele, “Iraq war logs: Battle for Samarra killed dozens of innocent people” The Guardian October 24, 2010, https://www.theguardian.com/world/2010/oct/24/samarra-baton-rouge-civilian-deaths. 47 2008. In October 2004 one of the coalition forces’ largest offensives in Iraq was launched to retake Samarra from insurgents. The city had become a no-go zone for US forces, with “insurgents ensconced in all the main civic buildings as well as its famous al-Askari mosque.”86 Wikileaks’ release of tens of thousands of classified documents entitled the ‘Iraq War Logs’ provides a graphic and detailed account of Operation Baton Rouge, the code name for the battle to retake Samarra.87 In it, it captures the brutality of counterinsurgency conflict, and the significant role civilian protection (or civilian casualties, where these obligations are neglected) play in mission success. During the battle for Samarra, [k]ey objects and landmarks in Samarra were given American presidents’ names. Insurgents were called ‘anti-Iraqi forces’ (AIF). “Kill boxes 1A and 1B closed,” says the Wikileaks entry [from Operation Baton Rouge] at 0030, using a blunt term for a set of grid references where US air and ground forces are permitted [based on the Rules of Engagement that guide their conduct] to shoot anything without further coordination with other units.88 At 0120, an AC-130 plane engaged a mortar tube and AIF. Five enemy were killed. At 0126, 40 enemy forces were reported killed at Object Taft and seven enemy were dead at Object Harding...As dawn broke, coalition ground troops moved in, with soldiers from the new Iraqi army fighting alongside the Americans for the first time. Several encounters with insurgents ensued and by 0830 the logs were recording 94 enemy dead, one wounded, and five detained. US casualties were three wounded, none dead. “At 1215 36th Iraqi battalion entered the Golden mosque on Object Monroe and began search...36th reports AK-47s found in the mosque...at 1222 36th Commando reports taking small arms fire inside the mosque...at 1226 36th commando reported taking 26 detainees with 26 weapons inside the Golden mosque.”89 The commandos later entered the town’s general hospital and detained 50 people suspected of being insurgents.90 The Battle for Samarra lasted less than 36 hours in total, yet the impacts it had will be felt by its civilian population over generations. While the logs themselves do not contain any reference to civilian deaths, nor did the US military admit to any in their public statements, credible sources have documented a massive loss of life. Zidan Khalaf of the Associated Press, “one of the few reporters to cover the operation on the ground, quoted an official at the Samarra General Hospital 86 Ibid. 87 See the Iraq War Logs on Wikileaks for more detail here https://wardiaries.wikileaks.org/. 88 Entry 779C479A-0B09-4315-AD8E-C83443D0BFA2, Iraq War Logs, https://www.theguardian.com/world/iraq/warlogs/779C479A-0B09-4315-AD8E-C83443D0BFA2. 89 Entry B31D9EF2-6076-4C9F-833F-886F9A04CE84, Iraq War Logs, https://www.theguardian.com/world/iraq/warlogs/B31D9EF2-6076-4C9F-833F-886F9A04CE84. 90 Steele, 2010. 48 as reporting that 70 bodies had been brought to the morgue– 23 were children and 18 women.”91 Additional sources verified there were 23 women among the 160 wounded.92 The Iraq Body Count, a non-profit organization that records the violent deaths that have resulted from the US-led military intervention in Iraq and includes civilian deaths caused by US-led coalition and Iraqi government forces and paramilitary or criminal attacks by others, documents a total of 48 civilian deaths for the 36-hour battle- 23 children, 18 women, and 7 elderly men.93 The violence has continued largely unabated since, with the civilians of Samarra caught up in the devastation for nearly two decades. Yet, Samarra’s tragic experience with civilian casualties of war is not unique nor is the unrest that has followed. Current records tell us that from 2003 onwards between 185,831 and 208,964 civilian violent deaths have occurred in Iraq.94 Even these records may not capture the full picture. The Iraq Body Count states that “gaps in recording and reporting suggest that even our highest totals to date may be missing many civilian deaths, and that “further analysis of the WikiLeaks’ Iraq War Logs may add an additional 10,000 civilian deaths” to this total, alongside the yet unknown full scale of civilian harm caused by Daesh in the region.95 Records capturing civilian casualties indicate similar tragedies for civilians in Afghanistan. Approximately 176,000 people have been killed in Afghanistan as a result of the conflict since 2001, more than 46,000 of those being civilians.96 These figures are likely to be low representations of the true civilian cost, particularly in light of the US withdrawal from Afghanistan in 2021. While the loss of civilian lives is no doubt tragic, civilian harm also has significant strategic impacts in counterinsurgencies. When ‘success’ in counterinsurgency is defined as denying insurgencies their access to ‘centres of gravity,’ insurgencies and counterinsurgencies both recognize that winning legitimacy in the eyes of the population in the sine qua non of operational and strategic success.97 Counterinsurgency efforts therefore necessarily prioritize winning the 91 Ibid. 92 Ibid. 93 Incident K424, October 1, 2004, Iraq Body Count, https://www.iraqbodycount.org/database/incidents/k424. 94 Human Cost of Post-9/11 Wars: Direct War Deaths in Major War Zones, https://watson.brown.edu/costsofwar/figures/2021/WarDeathToll 95 Dustin Carpenter, Tova Fuller, Les Roberts, “Wikileaks and Iraq Body Count: the sum of parts may not add up to the whole– a comparison of two tallies of Iraqi civilian deaths” Prehospital Disaster Medicine 28.3 (2013), 223-9. 96 Ibid. 97 Kilcullen, 2006. 49 support of the population, in order to achieve their stated ultimate goal– legitimacy.98 Despite these well-established linkages, counterinsurgency efforts in key operations, including Afghanistan and Iraq, have largely failed to achieve these aims. The fall of the Afghan government to the Taliban in August 2021 after twenty years of counterinsurgency operations in the country places the consequences of such failures in stark relief. Similarly, the swift strategic successes of Daesh in Iraq a mere three years after coalition operations ended in the country paints a grim picture of the consequences. Yet even with evidence of the strategic failure of counterinsurgency operations in the two largest campaigns carried out by Western coalition forces in the 21st century, the majority of social scientific literature in this field has focused on explaining the causes of revolution and insurgency, rather than the causes of success or failure in the conduct of counterinsurgency.99 This study seeks to contribute to the understanding of the role civilian harm and protection plays in population-centric counterinsurgency success by exploring the ways in which ‘success’ and ‘effectiveness’ are considered and implemented in the design of COIN operations and interventions. This chapter delves into the contextual and definitional landscape of this study, as well as expanding on the theoretical approach underpinning the empirical analysis. It argues that despite a strategic level recognition of the relationship between military obligations to protect civilians and mitigate civilian harm in the pursuit of legitimacy, this relationship is significantly underspecified, particularly with regards to the role civilian harm response plays in counterinsurgency success. When it comes to civilian protection and its role in achieving counterinsurgency success, how protection and harm mitigation tasks are undertaken often matters just as much as why they are. Mismanagement and under-prioritization of these requirements poses a significant risk to operational effectiveness and overall mission success, particularly when even small failures in protection and mitigation efforts can have drastic strategic consequences. Thus, this chapter elucidates in further depth a theory of change that demonstrates (1) how and why protection of civilians (POC) tasks represent central strategic interests for counterinsurgents and (2) the role civilian harm response mechanisms hold in retaining or regaining legitimacy when POC efforts 98 For more on the connection between civilian harm and legitimacy, see Neta Crawford, “Targeting Civilians and US Strategic Bombing Norms: Plus ca change, plus c’est la meme chose?” in Matthew Evangelista and Henry Shue (eds), The American Way of Bombing: Changing Ethical and Legal Norms, from Flying Fortresses to Drones (Ithaca: Cornell University Press, 2014). 99 Michael Fitzsimmons, “Hard Hearts and Open Minds? Governance, Identity and the Intellectual Foundations of Counterinsurgency Strategy” Journal of Strategic Studies 31.3 (2008). 50 fail. Using Muthiah Alagappa’s theory of legitimacy and Paul D. Williams’ protection framework as well as the data gathered through a three-day theory of change workshop and semi-structured interviews, this chapter argues that a counterinsurgency’s legitimacy-centric objectives can only be achieved if the population’s expectations for their physical protection have been met. When this is not achieved, civilians are likely to negatively update their perceptions of counterinsurgents, providing insurgents an opportunity to influence the population’s behaviour. In these cases, counterinsurgents’ ability to deny insurgents these objectives become predicated on whether they can demonstrate the ethical, procedural, and performance-based legitimacy expected by the population in the aftermath of civilian harm incidents. This chapter begins by exploring the context and scope of the study, elucidating focus areas, limitations, and the definitional bounds of the subsequent work. This is followed by an exploration of the strategic logic of contemporary counterinsurgencies, in particular the logic of counterinsurgency as the ‘denial’ of victory to insurgents by achieving legitimacy in the eyes of the population. I then explore the operational logic of civilian harm mitigation and protection obligations in counterinsurgency and apply this in the proposed ToC. 2.2 Protecting Who, Why, and from What? 2.2.1 Protecting Who? Distinguishing between Civilians and Combatants As this study interrogates the concept of civilian harm and counterinsurgents’ response to it, understanding who a civilian is and what their rights are during conflict is vital. The first efforts at distinguishing between civilians and combatants derived from Pope Gregory IX’s list of those he determined to be innocens, meaning ‘non-harming or not capable of harming’ in conflict. This word was derived from its opposite, nocens, the Latin word meaning ‘harming.’100 Contemporarily, the formal distinction between combatants and civilians is known as the principle of distinction– a peremptory obligation of international humanitarian law which requires universal observance from which no derogation is permitted.101 Article 50 of Additional Protocol I to the Geneva Conventions defines civilians as “...any person who does not belong to one of the categories persons referred to in Article 4A(1), (2), (3), and (6) of the Third 100 See Helen M. Kinsella. The Image before the Weapon: A Critical History of the Distinction between Combatant and Civilian. Ithaca: Cornell University Press, 2011. 101 See International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3; Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. 51 Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered a civilian.”102 However, this definition still leaves much to be desired, not least because it has always been defined in opposition to those who cause harm, or ‘combatants.’ Many publicists and scholars have wrestled with attempts to further elucidate this definition, without significant success. One view taken by Michael Walzer argues that people have the “right to be free from violence unless they forfeit that right by participating in military activity, such as taking up arms.”103 A second perspective focuses on the degree of threat an individual poses in order to demarcate the line between combatant and civilian, arguing that only those who actively participate in an armed conflict constitute an immediate threat.104 As with the existing legal framework, each of these perspectives leaves us with gaps in categorization. For example, does a bomb-maker count as a combatant or a civilian? How do we categorize the accountant or financier of an insurgency group? This dividing line between combatants and civilians is particularly blurred in counterinsurgency and counterterror campaigns.105 As many insurgents operate within urban environments and within close proximity to civilian populations, their irregular structure and ability to switch inconspicuously in and out of civilian and combatant roles allows them to take advantage of the indeterminacy of their identities. Though considerable scholarship has attempted to navigate this divide, the reality remains that the empirical and juridical categories of combatant and civilian are not neatly separable. As a result, defining a civilian versus a combatant is much more a term of art rather than a strict science. Such uncertainty has significant implications for both respecting and violating the principle of distinction. For the purposes of this work and to ensure conceptual clarity, I define combatants in line with the Geneva Conventions as “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates,” as well as individuals involved in the construction of weapons.106 Civilians, by contrast, will be defined as those that do not participate in armed conflict by 102 Ibid. 103 Alexander B. Downes, Targeting Civilians in War (Ithaca: Cornell University Press, 2008), 14. 104 Ibid. 105 Kofi Annan, “Report of the Secretary General”, United Nations General Assembly, 1999. 106 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3; Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. 52 fighting, carrying weapons, serving in the uniformed military or security services, or building weapons. 2.2.2 Why? Understanding Civilian Protection Obligations in Conflict The canon of IHL, also known as the Law of Armed Conflict (LOAC) sets out the parameters and definitions of legal and illegal acts in armed conflict. In doing so, it attempts to strike a “…balance between a military’s ability to accomplish its objective…and the desire to maintain humanitarian restraint.”107 As Luis Moreno-Ocampo, the former Chief Prosecutor at the International Criminal Court stated in an open letter following his investigation of allegations of war crimes during the 2003 invasion of Iraq, civilian harm is permitted in conflict under IHL and the Rome Statute so long as the criteria of military necessity, distinction, and proportionally are observed.108 He states that although civilian harm during armed conflict is “grave and regrettable… international humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries may occur and this does not constitute a war crime.”109 While the IHL provisions for jus in bello conduct (conduct in or during armed conflict) note that it can be perfectly legal to injure or kill enemy combatants, it requires restraint when it comes to “violence to life and person of…persons taking no active part in the hostilities.”110 In particular, the treaties that make up the body of IHL specifically prohibit the intentional killing of civilians (the principle of distinction),111 and further may not engage in operations where the harm caused to civilians is out of proportion with the strategic aims that will be accomplished by undertaking the action (the principle of proportionality).112 These prohibitions are rooted in the principle of discrimination, which provides a specific responsibility for parties to armed conflict to (1) distinguish between civilians and combatants and (2) direct attacks only at military objectives. Therefore, “a crime occurs if there is an intentional attack directed against civilians (principle of 107 Lesley Wexler and Jennifer K. Robbennolt. “Designing Amends for Lawful Civilian Casualties.” Yale Journal of International Law 42 (2017). 108 Government Accountability Office. 2007. Military Operations: The Department of Defense’s Use of Solatia and Condolence Payments in Iraq and Afghanistan. GAO-07-699. 109 GAO, 2007. 110 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 3, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31. 111 Samuel Estreicher, Privileging Asymmetric Warfare (Part II)?: The "Proportionality" Principle Under International Humanitarian Law, Chicago Journal of International Law 12 (2011). 112 Ibid. 53 distinction) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).”113 As such, lawful civilian harm is defined as civilian harm perpetrated during lawful warfare operations under the auspices of IHL and the Rome Statute in which the criteria of military necessity, distinction, and proportionality are both considered and upheld. 2.2.3 From What? Civilian Harm in Modern War Although the issue of civilian harm in conflict often seems to be a straightforward concept encapsulating the suffering that civilians experience as a consequence of conflict– there is significant debate as to its definition. Yet the difficulty defining civilian harm, and resulting obligations for protection, creates opportunity for misunderstandings and miscommunication.114 For example, differing definitions can have significant implications when parties interpret harm as only direct harm, or as encompassing a wider definition that includes indirect and long-term consequences. Such differing interpretations of what ‘civilian harm’ constitutes can influence the ways in which the fundamental principles of international humanitarian law are applied, particularly the proportionality principle, and thus cause significant risks to civilians in conflict.115 Based on these issues, scholars and practitioners have advocated for broader definitions of civilian harm to inform study and practice in order to shift the narrative focus from perpetrators to civilians and account for the wide range of harm that they experience and the types of justice they pursue.116 With this in mind, this study uses an adapted version of Azeem et. al’s conceptualization of civilian harm, defined as: Intentional or unintentional negative effects on civilian personal or community well-being caused by the use of force in hostilities. Effects can occur directly (death, physical or mental trauma, property damage), or indirectly through the destruction of critical infrastructure, disruption of access to basic needs and services, or the loss of livelihood.117 113 GAO, 2007. 114 Saba Azeem, Lauren Gould, Erin Bijl, Jolle Demmers, After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija (Colophon, 2022), https://paxforpeace.nl/media/download/PAX_REPORT_HAWIJA_04.pdf. 115 Bijl, Wels, and Van der Zeijden, On Civilian Harm; ‘Fundamentals of IHL’ International Committee of the Red Cross, accessed December 17, 2020; Sarah Holewinski et al, “Beyond Casualty Counts: Building Dynamic Models to Capture and Foresee Civilian Harm.” White Paper (Frontlines Lab, 2021). 116 Ibid, Azeem, Saba, Lauren Gould, Erin Bijl, Jolle Demmers, After the Strike. White Paper, February 2022. 117 Azeem et al, 2022. 54 This definition allows for a broader accounting of the impacts of war on civilian lives including individual and communal impacts as well as the intentionality and legality of the actions that cause them. Capturing the legality and intentionality of civilian harm is particularly important for this project, as its focus remains on the response to civilian harm incidents which have resulted in incidental harm, also known as collateral damage. Intentional civilian harm is defined as serious violations of international law including war crimes (such as the intentional targeting of civilians, pillage, hostage taking, targeting of cultural property, torture, child recruitment, and rape and other forms of sexual violence), genocide, and crimes against humanity that occur during war. ‘Incidental’ harm or ‘collateral damage’ is understood to be the unintentional or incidental injury or damage to persons or objects that would not be lawful military targets in the circumstances ruling at the time.118 Additionally, this definition enables the classification of the effects of civilian harm based on their impacts, as follows: ● Direct effects: the ‘immediate and usually physical impact directly from the armed conflict,’ including civilian deaths, physical injuries, immediate damage to civilian infrastructure, and most forms of psychological trauma.119 ● Reverberating effects: ‘those effects that are not necessarily caused directly by the attack, but are nonetheless a product thereof,’ including displacement, health concerns related to the disruption of essential services like water provision, loss of livelihood, and so on.120 ● Civilian interpretations of harm: the impacts of harm on the affected civilians’ collective interpretations of war and violence, including stories of law, personal victimhood, and suffering, and assigning blame and accountability.121 This wider interpretation of civilian harm is particularly vital in the context of modern counterinsurgency conflict. As contemporary COIN operations are increasingly employing multiple forms of engagements simultaneously, including discrete ground operations, ground-based and aerial precision targeting methods, and remote warfare approaches, the range of potential harm that may be caused during these engagements is wide ranging. For example, while lower numbers of casualties can often be expected from direct ground combat engagements that 118 US Department of Defense, DOD Dictionary of Military and Associated Terms, November 2021. 119 Holewinkski et al., “Beyond Casualty Counts,” 4. 120 Ellen Nohle and Isabel Robinson, “War in Cities: The Reverberating Effects of Explosive Weapons,” Humanitarian Law and Policy, last modified March 2, 2017, https://blogs.icrc.org/law-and-policy/2017/03/02/war-in-cities-the-reverberating-effects-of-explosive-weapons. 121 Azeem et al, 2022. 55 do not make use of explosive weapons, aerial bombing can have significant implications for number and severity of casualties, as well as damage to civilian infrastructure and long-term livelihoods due to the explosive nature of these strikes.122 These risks for reverberating harm are exacerbated even more significantly if these types of approaches include the use of explosive weapons in populated areas (EWIPA), increasing the risk of unintended civilian casualties, widespread infrastructural damage, and significantly increased risks of secondary explosions.123 While all aspects of civilian harm remain important for this study, the centrality of civilian interpretations of harm, particularly direct harm, and their influence on the pursuit of legitimacy in counterinsurgency logic and civilian harm response will be explored in significant depth. 2.2.4 The Scope of Protection As with legitimacy, inconsistency abounds in the definitional scope of protection. The UN, for example, defines ‘protection’ nebulously as “[a]ll activities aimed at obtaining full respect for the rights of all individuals in accordance with international law–international humanitarian, human rights, and refugee law– regardless of their age, gender, social ethic, national, religious, or other background.124 Even more nebulous is the UN definition for ‘protection of civilians’ in armed conflict, which notes, “[p]rotection of civilians in armed conflict (POC), whereby all parties to the conflict are responsible for ensuring that the civilian population is respected and protected.”125 Similarly, despite a robust POC policy, NATO lacks a definition of POC entirely.126 The lack of definitional clarity within and across coalition forces and international organizations can have serious implications for the planning and execution of POC tasks and the wider counterinsurgency objectives of a given mission. For example, in conflicts to date, lacking a robust conceptualization of POC and, as a result, the full scope of POC activities NATO might undertake, NATO forces have focused largely on protecting civilians from the effects of coalition actions, but not a wider strategic prioritization of protection tasks overall.127 122 United Nations, Protecting Civilians in Urban Warfare: Political Declaration on Strengthening the Protection of Civilians from the Humanitarian Consequences arising from the use of Explosive Weapons in Populated Areas, 17 June 2022, https://www.dfa.ie/media/dfa/ourrolepolicies/peaceandsecurity/ewipa/EWIPA-Political-Declaration-Final-Rev-25052022.pdf. 123 Ibid. 124 Paul D. Williams, Enhancing Civilian Protection in Peace Operations: Insights from Africa, (Africa Centre for Strategic Studies, 2010). 125 United Nations Department for Peace Operations, The Protection of Civilians in United Nations Peacekeeping (New York: UNDPO, 2019), 126 NATO, North Atlantic Council, NATO Policy for the Protection of Civilians (Warsaw Summit: NATO, 2016). 127 Marla B Keenan and Alexander William Beadle, “Operationalizing Protection of Civilians in NATO Operations”, Stability: International Journal of Security and Development 4.1 (2015). 56 As a result, today, effective POC in armed conflict is made up of multiple component parts, including: ● physical protection from imminent violence; ● provision of basic necessities; ● enjoyment of human rights; and ● the establishment of social and economic enabling conditions.128 While the ideal remains ensuring civilians can enjoy all aspects of protection provided by a maximalist interpretation, in practice, the “inner core of physical protection…is vital for all the other layers.”129 To this end, this study constrains itself to the analysis of the ways in which the POC contributes to mission success and operational effectiveness in counterinsurgency operations.130 While it is recognized that there is no one solution, nor a solely military or political approach to counter an insurgency, the very existence of an insurgency implies that violence is involved which will have to be countered to some extent at least by the use of force.131 Although political measures alone might have prevented the insurgency from occurring in the first place…once it has taken hold, politics and force, backed up by economic measures, will have to be harnessed together for the purpose of restoring peaceful conditions.132 Due to the centrality of legitimacy as the desired end-state of a counterinsurgency, the protection of the civilian population from physical harm is the core task of a successful COIN operation–they are the core group which can provide consent to the government and, thus, their physical survival is a fundamental requirement for establishing all other aspects of legitimacy. If the protection of the civilian population is left unsecured or neglected, political and economic ‘wins’ matter little. To this end, this study assesses POC policy and practice, and in particular civilian harm mitigation and response practices, across three Western coalition counterinsurgency operations– NATOs 128 Williams, 2010. 129 Ibid. 130 Mission success can be difficult to define and is largely dependent on the conditions and objectives sought by political and military leaders. In the case of counterinsurgencies, it can be understood within the context of wider COIN and Stability Operations doctrine as the creation of viable political, economic, judicial, and security structures– also known as stability or legitimacy. Operational effectiveness, on the other hand, is a component part of mission success, and is largely defined in relation to combat effectiveness– is the capacity or performance of a military force to succeed in undertaking an operation, mission or objective. For a more substantial discussion of military victory and strategic success see Robert Mandel, The Meaning of Military Victory (London: Lynne Reinner, 2006) and operational/combat effectiveness, see Brathwaite, K J H, 2018, "Effective in battle: conceptualizing soldiers' combat effectiveness", Defence Studies, vol. 18, no. 1, pp. 1–18. 131 Frank Kitson quoted in Canadian Department of National Defence, Chief of Land Staff, B-GL-323-004/FP-003 COUNTER-INSURGENCY OPERATIONS (Ottawa: National Defence Headquarters, 2008), https://info.publicintelligence.net/CanadaCOIN.pdf. 132 Ibid. 57 International Security Assistance Force (ISAF) operation in Afghanistan from 2001-2014, the Multi-National Force–Iraq (MNF-I) and its successor force, United States Forces–Iraq (USF-I) in Iraq from 2004-2011, and the Global Coalition against Daesh’s operations in Iraq and Syria from 2014 to present. While future work concerning coalition operations in Yemen is also envisioned, this is beyond the scope of the current project. Coalition operations are the focus of this project for several reasons, predominantly because of the role they play in the development of norms for operational conduct amongst Western militaries.133 Evidence has shown that coalition operations have consolidated and solidified policy, procedure and practice regarding civilian harm mitigation and response not only within national militaries but across coalition partners as interoperability both in terms of practice and capability becomes increasingly important when operating in concert.134 With this in mind, we are able to assess and more holistically analyze the norm development and change process across coalition partners with regards to civilian harm mitigation and response. The subsequent sections of this chapter elucidate the strategic and operational logic of a theory of change which assesses the role the POC from direct physical harm plays in the operational effectiveness and mission success of counterinsurgencies. 2.3 The Protection Logic of Population-Centric Counterinsurgency The term insurgency, in a broad sense, concerns an attempt to violently overthrow or delegitimize established authority.135 Most scholars agree that an insurgency is a forceful challenge to wrest control of the domestic political environment from established authorities or sources of influence. However, there are multiple interpretations and definitions that are used by scholars, practitioners, and military personnel today that seek to account for a variety of motivations and end-states desired by a contemporary insurgency force. Frank Kitson defined insurgency as the use of armed force by a section of the people against the government for the purposes of overthrowing or changing the way they conduct business.136 Bard O’Neill argued in 1990 that an 133 Coalition policy and doctrine (including that of coalition member states’ militaries which directly inform coalition conduct, such as the United States and United Kingdom) will be reviewed throughout the study. As several of the coalition forces mentioned are led by the United States, and the United Kingdom’s Development, Concepts, and Doctrine Centre writes a significant portion of NATO operational doctrine, at times national military doctrine from these two countries will be referred to directly. 134 For evidence of this interoperability, see NATO Allied Joint Doctrine Publications on Counterinsurgency and Joint Targeting. 135 John J. Le Beau, “The Renaissance of Insurgency and Counterinsurgency: Examining Twenty-First Century Insurgencies and Government Responses.” Connections 7.1 (2008), 154-166. 136 Frank Kitson, Low Intensity Operations: Subversion, Insurgency, Peace-keeping, London: Faber and Faber, 1971. 58 insurgency was defined as a struggle between a non-ruling group and the ruling authorities in which the non-ruling group consciously uses political resources (e.g. organization expertise, propaganda, and demonstrations) and violence to destroy, reformulate, or sustain the basis of legitimacy of one or more aspects of politics.137 More recently, John Nagl defined insurgency as an illegal attempt to overthrow a legitimate government or to change its policies through the use of military force.138 Similarly, the British Army’s Countering Insurgency manual, defines insurgency as an organized, violent subversion used to effect or prevent political control, as a challenge to established authority.139 Even a cursory analysis of these definitions demonstrates common threads throughout. An insurgency entails a non-ruling group attempting to undermine the governance of a ruling authority using a variety of means and methods to attack its legitimacy and support. For the purposes of this work, I take David Kilcullen’s definition of insurgency as a starting point, with insurgency defined as ‘a struggle to control a contested political space, between a state (or group of states or occupying powers), and one or more popularly based, non-state challengers’ by attacking the ruling group’s legitimacy.140 Insurgencies are, fundamentally, ever-changing, and constantly shifting targets and their logics, strategies, and tactics have changed substantially over time. Even small changes in the environment within which they operate, their popular and external support, or a change in the state internally, regionally, or internationally, will have an impact on the form, function, and nature of an insurgency movement, and, as a result, the nature of effective counterinsurgency strategy. Contemporary insurgencies, such as those witnessed in Iraq and Afghanistan, and more recently in Iraq and Syria, Yemen, and Nigeria, differ significantly in comparison to those born out of the wars of national liberation between 1944 and 1980 across issues of policy, strategy, operational art, and tactical technique from those that preceded them.141 Classical counterinsurgency theorists focused primarily on insurgencies which challenged functioning state systems, while today insurgencies look quite different.142 Often, insurgencies in the 21st 137 Bard E O’Neil, Insurgency and Terrorism: From Revolution to Apocalypse. Washington DC: Potomac Books, 1990. 138 John Nagl, Learning to Eat Soup with a Knife, Chicago: Chicago University Press, 2005. 139 UK Ministry of Defence, AFM 1 Part 10: Countering Insurgency, 2009, p. CS 1-5, http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/16_11_09_army_manual.pdf. 140 David Kilcullen, “Counter-insurgency Redux”, Survival, 48:4 (2006), 111-130 and David Kilcullen, “Three Pillars of Counterinsurgency” 141 Kilcullen, 2006. 142 For further on classical counterinsurgency and its features, see David Galula, Counterinsurgency Warfare: Theory and Practice, Pall Mall, London, 1964; Robert Thompson, Revolutionary War in World Strategy 1945-1969, Taplinger, N.Y., 1970 p. 20-21; Robert B. Asprey, War in the Shadows: The Guerrilla in History, 2 Vols, Doubleday, NY, 1975; Ian F.W. Becket, The Roots of Counter-Insurgency: Armies and Guerrilla Warfare 1900-1945, Blandford Publishers, London, 1988; Walter Laqueur, Guerrilla, Weidenfeld and Nicholson, London, 1977 and Alexander 59 century have developed not out of rebellion against a state government, but out of state failure and are aimed at supplanting the state in the aftermath, or seeking leverage and influence in newly ungoverned spaces.143 In other cases, the insurgent force has deeper roots than the government itself, similar to the 2001-2021 operations in Afghanistan in response to the Taliban and Al Qaeda, where these organizations held intergenerational influence over large swathes of the population.144 Today’s insurgencies have required a fundamental reimagining of how counterinsurgency is conducted, and what the goals and aims of such campaigns truly are in the face of innovative, adaptable, and in some cases, technologically advanced, insurgent forces. Crucially, the objectives of contemporary insurgencies globally vary significantly in comparison to historical examples. Insurgents’ motivations today are more likely to favour the destruction of a state or power structure, rather than revolution or ambitions to govern.145 As Anthony Cordesman argues, in many ways, a contemporary insurgency's goals are not necessarily to claim an ultimate victory against existing powers, but to deny an ultimate victory to the government and its allies.146 This was evident in both Afghanistan and Iraq. Iraqi insurgents did not demonstrate a desire to govern Iraq, but sought to paralyze and fragment the state, ultimately destroying it.147 Similarly, insurgents in Afghanistan sought to be ‘strategic spoilers’ by undermining the government and targeting coalition forces, officials, and population support bases.148 In particular, insurgencies driven by religious ideologies may not seek to achieve any real world strategic objectives other than to resist systems that do not align with their convictions– the focus is rather on the act of resistance itself. This approach is particularly evident in the insurgency strategy of the al-Qaeda network. As al-Qaeda’s former leader, Osama Orlov, Handbook of Intelligence and Guerrilla Warfare, University of Michigan Press, Ann Arbor, 1963; C.E. Callwell, Small Wars: Their Principles and Practice, 3rd Edition, University of Nebraska Press, Lincoln and London, 1996 (first published 1896, 3rd edition originally published 1906); Department of the Navy, United States Marine Corps, NAVMC 2890, Reprint of USMC Small Wars Manual 1940, Washington, 1987. 143 Kilcullen, 2006. 144 Ibid. 145 Robert Thompson, Revolutionary War in World Strategy 1945-1969, Taplinger, N.Y., 1970 p. 20-21. There is some debate regarding terminology with definitional issues regarding insurgency as many scholars have pointed to a requirement for insurgencies to state the overthrow of ruling powers as part of their objectives. While this tension has been addressed in insurgency and counterinsurgency literature, some scholars prefer the terminology of ‘rebel(s) and rebellion’ to capture those insurgent-type forces and efforts that do not include efforts to supplant existing power structures. For further discussion, see Gurr (1970); Keen (2005); Weinstein (2007); Kalyvas & Kocher (2007); Salehyan (2009); Beardsley & McQuinn (2009); Hegghammer (2010); Akcinaroglu (Rebel Interdependencies and Civil War Outcomes 2012); Driscoll (2012); Fjelde & Nilsson (2012); Checkel (2013); Hazen (2013); and Parkinson (2013). 146Anthony Cordesman, The Iraq War and Lessons for Counterinsurgency, Center for Strategic and International Studies, Washington D.C., March 2006, pp. 3-4. 147 See David J. Kilcullen, “Globalisation and the Development of Indonesian Counterinsurgency Tactics” in Small Wars and Insurgencies, Vol. 17, No. 1, 44–64, March 2006. 148 Interview with former senior officer of British Intelligence, Kabul, July 2006, cited in Kilcullen, 2006b. 60 bin Laden, noted, “This battle is not between al-Qaeda and the United States. This is a battle of Muslims against the global crusaders.”149 So, what does this tell us about insurgency and how to counter it? 2.3.1 Denying Insurgent Objectives: Fighting for Legitimacy Counterinsurgency is defined in its opposition to the concept of insurgency and understood as a battle between insurgents and a state’s government (and often third-party counterinsurgency forces) for control over segments of the population.150 As a result, the nature of counterinsurgency is not fixed, but constantly shifting– it evolves in response to the particular form and function of an insurgency, and the changes it goes through in time and space.151 Counterinsurgency thus represents a form of ‘counter-warfare’ without a constant or defined set of operational techniques, with the core objective of denying insurgent objectives.152 If insurgencies are fundamentally concerned with attacking a ruling group’s legitimacy and support, it is then the central goal of a successful counterinsurgency to secure and maintain the legitimacy that insurgents seek, in order to deny it to them by outmanoeuvring the insurgent through the “denial of their most vital support and sanctuary– the local population.”153 Contemporary Western counterinsurgency doctrine in the 21st century echoes this fundamental principle, arguing that “legitimacy is the main objective” of any counterinsurgency campaign.”154 Legitimacy is often defined as the intersubjective perception of a rule, organization, or institution which actors believe are desirable, proper or appropriate because of its favourable outcomes and/or procedural fairness.155 Though there is much debate over this definition and others, it is well accepted that the concept of legitimacy is fundamentally an 149 CNN, “Transcript of bin Laden’s October Interview”, 5 Feb 2002, online at http://archives.cnn.com/2002/WORLD/asiapcf/south/02/05/binladen.transcript/index.html. 150 Kitzen, 2017. 151 Kilcullen, 2006. 152 Ibid. This legitimacy centric ‘hearts and minds’ approach to counterinsurgency represents a relatively recent evolution in counterinsurgency strategy, with historical COIN operations focused on other objectives and techniques to achieve their aims. For example, in the late 19th and early 20th century, counterinsurgency theory was largely focused on intimidation and deployment of spectacular force as described by Priya Satia in Time’s Monster. Additionally, developments towards long counterinsurgency campaigns, similar to what we see today, largely developed post-1945 in contrast to the ways in which colonial counterinsurgencies were conducted. Thus, the development towards the contemporary 21st century counterinsurgency approach is rather new in the historical record and is also reflected in the thinking regarding the role civilian targeting versus civilian protection has played in strategic decisionmaking (see Neta Crawford’s work on strategic bombardment for more on this). My thanks to my committee member, Arjun Chowdhury, for his insights and guidance on these developments. 153 Kitzen, 2017. 154 United States Field Manual 3-24 / Marine Corps Warfighting Publication 3-33.5, Counterinsurgency (Washington DC: HQ, Dept. of the Army; HQ, Marine Corps Combat Development Command, Dept. of the Navy, Dec. 2006) (hereafter referred to as FM 3-24 / MCWP 3-33.5), 1-21. 155 Suchman, 1995. 61 intersubjective one dependent on the collaboration between the population and the state towards a shared set of objectives.156 Bourdieu echoes this, arguing that legitimacy is ultimately an actor’s ability to accrue tangible or intangible social capital, which is constructed through social understandings of what is valued and therefore valuable. Similarly, Anderson and Black argue that legitimacy “depends on the state’s access to physical and symbolic capital and, also, on the populace’s perception of the actor’s effective use of that capital in the ways in which the population approves.”157 When established, it is often a quality that justifies a power relationship, yet conceptualizations of how legitimacy can be established, and its necessary conditions are more wide ranging.158 In contemporary Western warfare this understanding has been operationalized through the lens of a population-centric counterinsurgency– an approach that considers population control a matter of collaboration between the government and the local population– by establishing and delivering on shared objectives held between counterinsurgency forces and the population.159 By establishing shared objectives, building trust and collaboration between counterinsurgents and the population in the pursuit of them, counterinsurgents’ legitimacy will be maintained or regained and the population will provide its consent to be governed. This consent is vital in that it confers a social contract between the population and counterinsurgents. In having the legitimacy to govern, the population forfeits some control to actors they perceive as legitimate in exchange for the benefits that come from a functioning state– security, effective governance, the provision of basic services, and justice and accountability.160 As Matheson notes, historically three forms of political authority have been distinguished– coercive, reward-based and legitimate authority.161 Typically, coercive and reward-based authority styles are unsustainable in the long-term in circumstances of counterinsurgency, as durable population support that outlasts coercive tactics or the availability of reward structures is vital. As Martijn Kitzen argues, coercion is unlikely to lead to a viable condition of government control and reward-based authority is 156 Katharina Coleman, International Organizations and Peace Enforcement: The Politics of International Legitimacy (Cambridge: Cambridge University Press, 2007). 157 Edward Anderson and Laura Black, Accumulations of Legitimacy: Exploring Insurgency and Counterinsurgency Dynamics, 2007, https://www.researchgate.net/publication/242229642_Accumulations_of_Legitimacy_Exploring_Insurgency_and_CounterInsurgency_Dynamics 158 Aoi, 2011. 159 Kitzen, 2017. 160 For more on this logic see Stathis Kalyvas’ discussion of ‘control’ and ‘unquestioned dominance’ in Stathis Kalyvas, The Logic of Violence in Civil War, 2006; and Matheson “Weber and the Classification of Forms of Legitimacy,” 2006. See also Kilcullen, Out of the Mountains for a theory of competitive control based on Kalyvas’ work. 161 Craig Matheson, “Weber and the Classification of Forms of Legitimacy”, The British Journal of Sociology 38.2 (1987), 199-215. 62 limited and costly– a population will only comply as long as there is an adequate reward to do so.162 Legitimate authority, though, sits at the heart of contemporary counterinsurgency strategy and is based on the population’s belief in the ‘rightfulness’ of the government's authority and thus allows them to exercise their authority based on the consent of the governed. In order to establish legitimate authority, a government must establish its legitimacy in the eyes of the people and convince them it should rightfully govern. Thus, counterinsurgency strategy’s ultimate condition for strategic success is establishing this legitimacy to govern. This central mechanism of seeking the population’s consent to the government’s authority is the operative logic of counterinsurgency strategic logic– denying insurgents’ objectives can only be achieved by establishing the legitimacy required to restore the social contract between the population and counterinsurgents. Yet, despite the centrality of legitimacy to counterinsurgency, contemporary counterinsurgency doctrine lacks a robust conceptualization of legitimacy or the conditions through which to achieve it. Despite 66 mentions in NATO counterinsurgency doctrine, 130 in the latest US COIN Manual and thousands more references in other coalition doctrine documents, all lack a robust conceptualization of legitimacy or the conditions required to establish it, choosing instead to focus on discrete tactical tasks that may contribute to this amorphous desired end-state, but have not been logically connected to the overall strategic goals.163 As a result, contemporary Western doctrine has failed to produce a coherent and consistent theory of counterinsurgency based on the legitimacy premise. This is, in part, because it has failed to usefully explicate the legitimation process between the strategic and operational levels in enough depth to inform subsequent operational planning and the identification of aligned tactical actions. 2.3.2 Operationalizing the Legitimacy Pursuit It is the reality of modern counterinsurgency and its limited goals for denying victory to their adversaries, that it is unlikely that either side will ever enjoy the full support of the population, and its levels will fluctuate often. This will often require repeated efforts to wrestle support away 162 Kitzen, 2017. 163 As noted later in this chapter, this study focuses on Western coalition counterinsurgency operations, including NATO operations. With this in mind, NATO doctrine will be referenced throughout the study. It should be noted that as the majority of Western counterinsurgency coalitions are led by US forces, and NATO doctrine is produced and managed by the UK Ministry of Defence’s Development, Concepts, and Doctrine Centre (DCDC) there are significant overlaps between US, UK, and NATO doctrine and policy and, thus, references to US and UK doctrine will also be included throughout the study, where relevant. 63 from the insurgent force, individual by individual, community by community through a combination of military and non-military means. As a result, the battle for the support of the population is one of attrition– both forces fighting to sway the neutral majority of the population in their own direction, as depicted in Figure 2.1 below. Figure 2.1: Support for an Insurgency in FM-3.24: US Counterinsurgency Field Manual164 Counterinsurgents are therefore ultimately striving to establish enough evidence of the government’s legitimate authority so that a critical majority of the population possesses enough trust in their legitimacy to govern to provide consent. In order to establish this level of trust, counterinsurgents must understand and design their operational and tactical plans in line with the population’s determinants of legitimacy in order to reach the desired end state. 2.3.3 Securing the Support of the Population to Establish Consent Modern theoretical understandings of the importance of garnering popular support in counterinsurgency vary. Some argue that the support of the population is crucial for information flows that enable counterinsurgency forces to locate and target insurgent forces successfully.165 Others note that by securing popular support counterinsurgencies can reduce the supply and demand of insurgents by reducing their recruitment pool.166 Proponents of a ‘hearts and minds’ approach take this further, arguing that securing the population and addressing popularly held grievances will reduce the impetus for rebellion and that the local population will reward them 164 Department of the Army and Department of the Navy/Marine Corps, Joint Publication 3-24, Counterinsurgency (Washington: US Department of Defense, 2018/2021). 165 Andrew Shaver and Jacob N. Shapiro, “The Effect of Civilian Casualties on Wartime Informing: Evidence from the Iraq War”, Journal of Conflict Resolution 65.7-8 (2021); Berman Eli, Shapiro Jacob N., Felter Joseph H. 2011. “Can Hearts and Minds Be Bought? The Economics of Counterinsurgency in Iraq.” Journal of Political Economy 1190 (4): 766–819; Lyall Jason, Imai Kosuke, Shiraito Yuki. 2013. “Coethnic Bias and Wartime Informing.” The Journal of Politics 77 (3): 833–48. 166 Condra Luke N., Felter Joseph H., Iyengar Radha K., Shapiro Jacob N. 2010. The Effect of Civilian Casualties in Afghanistan and Iraq (Technical report). Cambridge, MA: National Bureau of Economic Research. 64 with their support.167 The crucial requirement to win the consent of the governed in order to secure legitimacy begs the question– what conditions need to be established in order for the population to perceive counterinsurgency actors as legitimate enough to provide their consent and how can these conditions be achieved? Contemporary counterinsurgency doctrine provides little useful direction. As Western military doctrine has prioritized the pursuit of legitimacy as the desired end-state of a counterinsurgency operation, one would expect there to be an overt and established connection made between the desired end-state of counterinsurgency (legitimacy), the operational framework through which it will be pursued, and the actions envisioned to get there. Yet, in the official documentation of the Western coalition’s latest COIN operational framework the word ‘legitimacy’ is mentioned just once and there is no discussion of how this framework or the actions envisioned within each stage will enable counterinsurgent forces to achieve their strategic goals.168 The framework itself is imbued with assumptions of an implicit link between the strategic-level pursuit of legitimacy, the process-oriented operational framework, and tactical actions that result from it. The logic of this framework is implied, rather than complete. While destroying insurgent capacity and empowering host-nation capacity can, in fact, contribute directly to establishing state legitimacy, who it is done by, what actions it entails, how they are prioritized, and when and how they are undertaken matter a great deal. Muthiah Alagappa’s conceptualization of legitimacy provides a useful framework for thinking about and addressing these gaps in the operationalization of legitimacy objectives in counterinsurgency strategy. His framework proposes that legitimacy is fundamentally relational. Breaking legitimacy into three separate but overlapping elements, he argues that the consent of the population can only be established where evidence of normative, procedural, and performance-based legitimacy has been established in the eyes of the public based on shared objectives.169 This approach prioritizes stakeholders’ internal commitment to authority and gives much greater definition to the ultimate goals of counterinsurgents and the ways in which 167 Lee Carrie. 2012. “Holding Hearts and Minds: The Effect of Boots on the Ground in Iraq.” Stanford University; Lyall Jason, Blair Graeme, Imai Kosuke. 2013. “Explaining Support for Combatants during Wartime: A Survey Experiment in Afghanistan.” American Political Science Review 1070 (04): 679–705. 168 NATO AJP 3.27 Counterinsurgency, https://www.gov.uk/government/publications/allied-joint-doctrine-for-counter-insurgency-coin-ajp-344a. 169Alagappa, 1995. 65 counterinsurgency work may be effectively carried out. In line with this framework, counterinsurgent authorities and forces must demonstrate the following in order to successfully win the support of the population and establish consent: ● That they hold shared norms and values with the population (normative legitimacy); ● That they can and do conform with established rules nationally, regionally, and internationally (procedural legitimacy); and ● That they can and do properly and effectively use state power (performance-based legitimacy).170 Such an approach helps to think through the component conditions for establishing legitimacy in counterinsurgency operations and provides a framework for developing approaches that are directly informed what is valued and valuable in the eyes of the population. This study combines Bordieu’s definition with Algappa’s framework of legitimacy, arguing that in order for the state to have access to the required physical and symbolic capital needed to exert legitimate authority, counterinsurgents must demonstrate their ability to undertake legitimate actions by demonstrating alignment with the expectations the population holds of the legitimate authorities in line with normative, procedural, performance-based criteria defined by the population. Until this alignment has been demonstrated, counterinsurgents will struggle to secure the support of the population needed to secure their consent. Yet, how do counterinsurgents demonstrate these normative, procedural, and performance-based conditions? What conditions tell the population that they share norms and values with counterinsurgents, that the counterinsurgency force and government can and will continue to conform with established rules, and that they can and do properly and effectively use state power? 2.3.4 Determinant Identification The necessary and sufficient conditions to establish each of these forms of legitimacy are difficult to define as they tend to shift drastically depending on the context. Establishing each type of legitimacy requires different types of actions, actors, and approaches. Importantly, unlike traditional sectoral segmentation of legitimacy into political, economic, and legal categories, Alagappa’s approach recognizes that these sectoral sources contribute to the wider normative, procedural, and performance-based determinants for establishing consent. Depending on the 170 Ibid. 66 context of an operation, these elements may be placed in a hierarchy though the specific order will be unique for every situation, with the nature and importance of each element changing as time goes on.171 This aspect of the legitimation logic is vital for operationalizing successful counterinsurgency missions–without logically connecting the normative, procedural, and performance-based determinants of legitimacy, to sources that demonstrate this legitimacy, appropriate counterinsurgency actions that are logically aligned with the strategic goals of the mission cannot be established, and their effectiveness cannot be measured. At present, contemporary counterinsurgency doctrine skips this level of the legitimation process, making a logical leap from the centrality of legitimacy for establishing authority to tactical level tasks. For example, the US Counterinsurgency Field Manual documents several “sources” of legitimacy, noting that Tasks that provide an overt and direct benefit for the community are key, initial priorities. Special funds (or other available resources) should be available to pay wages to local people to do such beneficial work. Accomplishing these tasks can begin the process of establishing [HN] government legitimacy. Sample tasks include: ● Collecting and clearing trash from the streets. ● Removing or painting over insurgent symbols or colours. ● Building and improving roads. ● Digging wells. ● Preparing and building an indigenous local security force. ● Securing, moving, and distributing supplies. ● Providing guides, sentries, and translators. ● Building and improving schools and similar facilities.172 While it is correct in noting that ways to demonstrate legitimacy include providing security, expanding effective governance, providing essential services, and establishing justice and accountability mechanisms, it fails to recognize that the tasks it lists are not sources of legitimacy in and of themselves, unless they can demonstrate normative, procedural, or performance-based alignment with the population’s needs and expectations of legitimate authorities. At all stages, the population is the referent that determines what is and is not a determinant of legitimacy. 171 Ibid. 172 Department of the Army and Department of the Navy/Marine Corps, 2018/2021. 67 This substantially complicates existing doctrinal assumptions of legitimacy in COIN and how to secure it as an underlying theory of change is not elucidated. Without teasing out the logic further, counterinsurgents guided by this doctrine will struggle to design and develop effective operational approaches that align with the population’s expectations and appropriately align tactical tasks to achieve them. As Michael Fitzsimmons rightly points out, conventional counterinsurgency wisdom has long been grounded in the assumption that the path to legitimacy is simple and well-established Western logic based on effective and efficient governance.173 If effective and efficient administration of government and public services is established, legitimacy will naturally result without much effort. Yet in environments where ethnic and religious identities are contested, the politically salient aspects of winning legitimacy may be more dependent on who governs rather than how whoever governs, governs. Kitzen also emphasizes the importance of cultural and contextual factors in the process of operationalizing legitimacy in counterinsurgency operational planning. He argues that counterinsurgents should practice so-called ‘cultural legitimation’ emphasizing the use of those structures that are already perceived as legitimate by the local population.174 Ultimately the population’s determinants of legitimacy must directly inform the ways in which counterinsurgency is operationalized and these determinants will be the measures of effectiveness on which counterinsurgency success is assessed. Consent will be elusive until the population’s needs are placed at the strategic heart of counterinsurgency strategy. While contemporary counterinsurgency strategy is clear about the need to establish the support of the population, they often seek to do so ineffectively or indirectly. Anecdotal and journalistic evidence from Afghanistan and Iraq demonstrates this disconnect. Stories of counterinsurgency forces building wells (where none were wanted), throwing Mother’s Day parties in communities (at the wrong time of the year), or prioritizing the building of irrigation systems rather than the direct protection of civilians are common.175 All this evidence points to a specific concern– for a counterinsurgency strategy that places securing the support of the population at the centre of its success, counterinsurgency forces directly engage with the civilian population relatively 173 Michael Fitzsimmons. “Hard Hearts and Open Minds? Governance, Identity and the Intellectual Foundations of Counterinsurgency Strategy”, Journal of Strategic Studies, 31:3 (2008), 337-365. 174 Kitzen, 2017. 175 See Megan McCloskey, Mike Tigas, Ryann Grochowski Jones, Sisi Wei, Jeff Larson, and Ingrid Burrington, Money as a Weapons System: How US Commanders Spent $2 Billion of Petty Cash in Afghanistan. ProPublica (May 15, 2015), https://projects.propublica.org/cerp/. 68 ineffectively. Without regular and sustained interactions at all levels of a counterinsurgency effort, how can shared objectives be identified and established for counterinsurgents to pursue? While efforts to strengthen Western coalition civil-military interaction units have been ongoing, the predominant focus of these efforts has been on engagement with humanitarian organizations and national NGOs, rather than direct population engagement.176 Thus, the bulk of military intelligence on the population’s determinants of legitimacy is based on abstraction from academic or civil society assessment, creating a noticeable gap between the professed needs of the population and the tasks counterinsurgents choose to undertake. 30 interview participants from Afghanistan and Iraq who were present in country during the 2003-2011 period were consulted as a part of this study and asked to identify the conditions that they felt did or could have contributed to their perception of legitimate authority and their government during the counterinsurgency campaign in each country. Their responses were wide ranging and captured issues and grievances including concerns over their safety, protection, and human rights; the provision of basic services; government responsiveness to population needs; justice and accountability, particularly for state abuses of authority; and wider concerns for quality of life, including economic access and infrastructural improvements. Table 2.1 below captures their responses and the concerns that were voiced across participants. 176 This insight comes from the author’s own experiences as a Human Security and CIMIC advisor to Western militaries and politico-military alliances. For further evidence of this trend, see NATO CIMIC approach documented by the NATO Centre of Excellence for Civil Military Integration and Coordination, https://www.cimic-coe.org/resources/fact-sheets/civil-military-interaction-updated.pdf. 69 Table 2.1: Non-comprehensive list of factors impacting civilian perceptions of legitimacy by 30 civilians from Iraq and Afghanistan177 Factor Category Determinant identification Safety and Security/Protection of Civilians Guarantee of rights and freedoms Safety, security, and crime control Protection from armed groups Reduction in violent conflict Reduction in civilian harm resulting from conflict Political Structure and Processes Systems of governance (democratic) Division/alignment between religion and state Electoral rights, state beholden to citizenry Basic Services Government responsiveness Effectiveness of emergency services Access to emergency services Social protection Provision of basic societal services (trash collection) Taxation standards Rule of Law, Justice & Accountability Implementation of and respect for rule of law Effective organization and command and control of military and police services Transparent, impartial, and fair justice and accountability systems Establishment of procedural norms and rules for justice and accountability institutions Adherence to regional and international standards Conformity to established domestic, regional, and international rules Control of corruption and human rights abuses The counterinsurgency tasks indicated above can be divided into four categories of action, including providing security to the civilian population, establishing the rule of law and effective independent justice and accountability mechanisms, establishing and expanding effective governance, and providing essential services.178 Each of these categories contribute to establishing normative, procedural and performance legitimacy in different ways and the pursuit of legitimacy, thus, must be considered a sum of its parts. Effectively countering an insurgency is an undertaking that requires a multi-faceted approach involving multiple actors and inputs across multiple domains. Establishing legitimacy across each requires different strategies, actors, and approaches and it is a combination of these factors that ultimately establishes legitimacy in the eyes of the public. Although no one condition can be the sole contributor to establishing the consent of the population, there are some foundational aspects that must be upheld, or all other efforts will struggle to be effective. An assessment of the literature suggests that in practice legitimacy is 177 Insights derived from interview participants over the course of this study, from 2020-2023. 178 Department of the Army and Department of the Navy/Marine Corps, 2018/2021. 70 largely won through the provision of security, which increases the efficacy of benign activities and vice versa.179 Signalling both capacity and commitment to providing security is critical to increasing support, cooperation, and information flow from the population. Economic aid and service provision can then follow, but the core requirement of securing legitimacy is thought to be demonstrating that the state is capable of maintaining order and enforcing security. Without the basics of population security, the other determinants of legitimacy that come from effective governance, service provision, and economic stabilization cannot be enjoyed by the populace that requires them. Kitzen echoes this perspective, noting that it is crucial to guarantee the security of the population as this is the basis for establishing collaborative relationships– and this must be done from the very start of the counterinsurgency campaign.180 If the population that must provide consent to legitimate authority is not protected, its collaboration cannot be established, its support cannot be provided, and its consent cannot be given. Without this baseline– that a civilian population is protected in a way that allows them to meaningfully engage in public life to make such determinations–legitimacy cannot be secured. Why is this? Why is violence against civilians, and as a result the protection afforded to them, so consequential to operational effectiveness in counterinsurgency? Why is the provision of security and protection so central to the choices civilians make about the legitimacy of conflict actors and who they support? Attacks that harm civilians may undermine civilian support or solidify it in support of a particular conflict actor depending on the nature of the violence, the intentionality attributed to it, and the precision with which it is applied.181 Thus, without establishing the safety and security of the populace, instances of civilian harm can have unpredictable short-, medium, and long-term impacts on counterinsurgency objectives and requirements. In the short-term, there may be force protection consequences as anger and resentment of coalition forces amongst 179 This thinking finds its sources in the community policing and anti-gang literature (Bayley 1994). Gangs, insurgents, and rebel groups have strong similarities in their community support requirements, vulnerability to leaks and defection if control is weak, and the centrality of community support to sustaining their impact. Gang efforts to maintain the support of communities are predominantly self-interested, and the same can be said of insurgent and counterinsurgency forces as well (Akerlof and Yellen 1994, Bueno de Mesquita 2008, Lake 2008). 180 Kitzen, Martijn. “‘Legitimacy is the Main Objective’: Legitimation in Population-Centric Counterinsurgency” Small Wars & Insurgencies 28.4-5, 853-866. 181Luke N. Condra and Jacob N Shapiro, “Who Takes the Blame? The Strategic Effects of Collateral Damage” American Journal of Political Science 56.1 (2012), 167-187; see also, Stanton, Jessica. “Strategies of Violence and Restraint in Civil War.” (PhD dissertation, Columbia University 2009), Valentino, Benjamin. Final Solutions: Mass Killing and Genocide in the Twentieth Century. (Ithaca, NY: Cornell University Press, 2004), Downes, Alexander B. 2007. “Draining the Sea by Filling the Graves: Investigating the Effectiveness of Indiscriminate Violence as a Counterinsurgency Strategy.” Civil Wars 9.4 (2007), 420–44., Kalyvas 2006, Kocher, Matthew Adam, Thomas B. Pepinsky, and Stathis N. Kalyvas. “Aerial Bombing and Counterinsurgency in the Vietnam War.” American Journal of Political Science 55 (2011), 201–18; Lyall, Jason, and Isaiah Wilson III. “Rage Against the Machines: Explaining Outcomes in Counterinsurgency Wars.” International Organization 63 (2009), 67–106. 71 affected communities is likely to rise. In such cases, the wide freedom of manoeuvre required to engage in counterinsurgency tasks are difficult to pursue, including direct engagement with civilian populations to build trust and legitimacy. In the medium-term, civilian populations impacted by civilian harm may reconsider their degree of support in the balance between insurgents and counterinsurgents. Communities affected by civilian harm incidents caused by coalition forces could withhold support or change who they support depending on their experience of civilian harm.182 Long-term, the degree to which civilians were harmed or protected, and the ways in which insurgents and counterinsurgents respond in the aftermath of civilian harm matters a great deal to the strategic success or failure of counterinsurgencies. This connection is also borne out in empirical literature. As Condra and Shapiro demonstrate, coalition killings of civilians predict higher levels of insurgent violence in the weeks and months that follow.183 Meanwhile efforts to proactively protect civilians, minimize collateral damage, and abide by established rules for civilian protection are proven to be strategically advantageous as these commitments to civilian protection and security are attractive to civilians.184 This remains true not only for counterinsurgents, but insurgent forces as well. Both the Afghan Taliban and Al Qaeda have recognized in their public communications the importance of mitigating the impact of their operations on civilian populations.185 The September 2009 iteration of the Afghan Taliban Book of Rules notes that “the utmost steps must be taken to avoid civilian human loss in Martyrdom operations.”186 Based on this, it is clear the provision of security, and particularly protecting civilians from harm, in counterinsurgency operations is not only a central normative and legal concern, but a strategic imperative central to counterinsurgency success. Prominent commanders of counterinsurgency operations also echo this thinking. In particular, the shift in thinking regarding civilian protection during the ISAF mission in Afghanistan from 182 Condra and Shapiro, 2012. 183 Condra and Shapiro, 2012. 184 Jennifer Keene and Sahr Muhammedally, Civilian Harm Tracking: Analysis of ISAF Efforts in Afghanistan, White Paper, 2010; Joseph H. Felter and Jacob N Shapiro, “Limiting Civilian Casualties as Part of a Winning Strategy: The Case of Courageous Restraint, Daedalus 146.1 (2017), 44-58. 185 Taliban Code of Conduct (translated), CNN website, July 30, 2009, http://www.cnn.com/2009/WORLD/asiapcf/07/30/Taliban.code.excerpt/index.html; Lawrence Wright in Cora Currier. “Hearts, Minds, and Dollars: Condolence Payments in the Drone Strike Age.” ProPublica (2013). 186 Ibid. 72 2001-2014 is a prime example of the ways in which coalition forces became increasingly aware of the strategic implications of civilian harm for their operational effectiveness and mission success. In 2009, General Stanley McChrystal, then Commander of NATO’s International Security Assistance Force in Afghanistan issued a Tactical Directive elucidating the connection between achieving mission objectives and the need to reduce the number of civilian casualties resulting from coalition operations in Afghanistan. Convinced that the loss of the support of the population was a decisive issue in the campaign, and that civilian casualties resulting from coalition operations were a primary reason for the shifts in population perspectives, McChrystal argued, that the …[s]trategic goal is to defeat the insurgency threatening the stability of Afghanistan. Like any insurgency, there is a struggle for the support and will of the population. Gaining and maintaining that support must be our overriding operational imperative, and the ultimate objective of every action we take. We must fight the insurgents and will use the tools at our disposal to both defeat the enemy and protect our forces. But we will not win based on the number of Taliban we kill, but instead on our ability to separate insurgents from the centre of gravity– the people. That means we must respect and protect the population from coercion and violence– and operate in a manner which will win their support. This is different from conventional combat, and how we operate will determine the outcome more than traditional measures…We must avoid the trap of winning tactical victories but suffering strategic defeats– by causing civilian casualties or excessive damage and thus alienating the people. While this is also a legal and moral issue, it is an overarching operational issue– clear-eyed recognition that loss of popular support will be decisive to either side in this struggle. The Taliban cannot militarily defeat us– but we can defeat ourselves.187 The McChrystal Directive was a turning point in NATOs counterinsurgency approach. Coalition forces recognized that winning the war was directly and incontrovertibly contingent on their ability to protect civilians from harm. Further, they recognized that it was not enough to just protect civilians from harm caused to them by militants. In order to achieve their strategic goals, they needed to proactively protect civilians from harm that could come to them as a result of coalition operations and win back the support they lost from the population when their own operations did harm civilians. 187 Stanley McChrystal, Commander of NATO’s International Security Assistance Force, Tactical Directive (releasable portions), 2 July 2009, http://www.nato.int/isaf/docu/official_texts/Tactical_Directive_090706.pdf. 73 Neta Crawford provides a useful explanation for this interest convergence in her work on civilian protection in US strategic bombardment practices. In it she argues that shifts away from targeting civilians to minimizing harm to civilians in conflict can be explained in two ways– military necessity and political utility. The military necessity explanation for Western militaries’ prioritization of protecting civilians from harm focuses on the military-strategic interests of elites, arguing that shift in civilian targeting towards civilian protection was motivated by their own understandings of military necessity. Strategists had previously argued that targeting civilians was, in fact, militarily productive, in that by doing so adversaries’ civilian populations would be unable to contribute to the war effort or by prompting them to actively oppose their leaders.188 It was not until military leaders came to believe that targeting civilians intentionally was unnecessary, ineffective, and counterproductive for their military objectives that it changed practice. This explanation is particularly evident in counterinsurgency. In Iraq and Afghanistan it became increasingly evident between 2006 and 2009 that the cost of civilian casualties was strategic failure– for every ten civilian casualties, military leaders argued they were creating fifty new insurgents.189 This directly countered the theory that civilian will would collapse– in fact, the population shifted their support to those actors who they felt could fill this protection gap.190 The political-utility explanation combines with the military necessity explanation to further elucidate the costs of civilian harm in counterinsurgency contexts. In it, Crawford combines elite concerns regarding military effectiveness with an emphasis on the role of the public’s sincere normative belief that harming civilians is wrong.191 Thus, the military necessity of civilian protection is inherently linked to the strategic-level effects of civilian harm which frequently result in the loss of counterinsurgent legitimacy in the eyes of the public.192 2.5 The Protective Heart of Counterinsurgency Success This convergence of interests between civilian needs and military objectives places the POC in an unusual position. A concept that has long been predominantly justified as an ethical-legal obligation now holds significant strategic value in contemporary military operations. Yet a core truth remains, if demonstrating legitimacy and securing the support of the population is the sine 188 Lyall, Jason. “Does Indiscriminate Violence Incite Insurgent Attacks? Evidence from Chechnya”, Journal of Conflict Resolution 331 (2009). 189 Interview with former commander of counterinsurgency forces in Iraq, March 23, 2021. 190 Ibid. 191 Crawford, 2014. 192 Ibid. 74 qua non of counterinsurgency success, protecting the civilian population from harm sits at the heart of achieving it. If counterinsurgency forces cannot protect civilians from harm or their operations result in significant harm to the civilian population, their legitimacy is likely to be questioned by the population as well as capitalized on by their adversaries. During counterinsurgencies, the civilian population is engaged in a constant cycle of evaluating and re-evaluating the legitimacy of insurgents and counterinsurgents and making decisions about where to lend their support based on these evaluations. Based on new information about the combatants’ wartime intentions and conduct, members of the population consistently update and re-evaluate their beliefs about the legitimacy of insurgents and counterinsurgents along normative, procedural, and performance-based criteria concerning protection issues.193 In an effort to win the support of the population, counterinsurgents take actions seeking to demonstrate alignment with the population’s protection expectations for normative, procedural, and performance-based legitimacy.194 Quite simply, if the population is not protected from harm, all other actions are unlikely to be useful. As Paul D. Williams argues, the needs of the population should be prioritized based on minimalist (physical survival) to maximalist (the enjoyment of rights) protection requirements: the physical survival of the civilian population, the provision of basic necessities, establishing enabling economic and social conditions to sustain the population, and establishing the conditions for civilians to enjoy their full range of human rights, as depicted in Figure 2.2. This model results in many interconnected layers with each layer interdependent on the next.195 193 Silverman 2020; Alagappa, 1995. 194 Each of these elements interacts and influences each other and particular interaction can be seen in the presence of normative elements and considerations informing procedural and performance-based expectations. For this evaluation study, as the emphasis is set on understanding the effectiveness of these payments, the focus will be predominantly on the procedural and performance-based criteria. Within these, we also see a mixture of normative, cultural, legal, strategic, and material elements that inform the perception of procedural and performance-based legitimacy in the eyes of the population. 195 Paul D. Williams, Enhancing Civilian Protection in Peace Operations: Insights from Africa, The Africa Centre for Strategic Studies (2010), https://www.files.ethz.ch/isn/134573/ACSS-RP1-ENGLISH.pdf. 75 Figure 2.2: Williams’ Onion Model of Protection196 As depicted in Figure 2.2, while the ideal remains ensuring civilians can enjoy all aspects of protection provided by a maximalist interpretation, in practice, the “inner core of physical protection…is vital for all the other layers.”197 Without establishing the core condition of physical protection from harm, all other counterinsurgency efforts are unlikely to be effective. Even core issues such as effective and efficient governance– a central component of establishing the legitimacy of state actors– are unlikely to find substantial purchase if the physical security of the population is not first established. Thus, the physical POC in counterinsurgency should not be understood as one of several core tasks, but as Mary Kaldor has argued, the core task, without which the conditions for mission success cannot be established.198 While overall protection efforts in counterinsurgency conflict involve a wide variety of actors, military forces have a pivotal role to play in physically protecting civilians from harm. Most obviously, in all conflicts, armed forces are the most likely actors to cause physical harm to civilian populations during their actions. The tasks that militaries undertake often entail the use of physical force against their adversaries and, as a result, military forces have significant obligations to mitigate the risk they pose to civilians in the course of their duties. Additionally, 196 Ibid. 197 Ibid. 198 Statement by Mary Kaldor at Human Security and the 2022 NATO Strategic Concept High-Level Workshop, https://www.rand.org/randeurope/research/projects/human-security-and-the-2022-nato-strategic-concept.html. 76 these same capabilities, in comparison to humanitarian and other government actors, means they are best suited to proactively address this ‘inner core of physical protection,’ as it is the counterinsurgency task within which their capabilities have the most utility through the measured use of force.199 Militaries’ abilities to recognize, understand, and interpret threats, and match the appropriate capabilities to counter them means the ability to address the core of physical protection is unique to military forces; one that unarmed actors are unlikely to be able to contribute to effectively.200 Military forces’ recognition of these obligations is reflected in policy, doctrine, and guidance on the protection of civilians and civilian harm mitigation at both the national and international level. For example, The Protection of Civilians in United Nations Peacekeeping policy provides a useful starting point noting that a comprehensive approach to POC includes the “…integrated and coordinated activities by all civilian and uniformed mission components to prevent, deter, or respond to threats of physical violence against civilians within the mission’s capabilities and areas of deployment through the use of all necessary means, up to and including deadly force.”201 Similarly, NATOs 2016 Policy for the Protection of Civilians also provides a useful conceptualization of the roles and responsibilities of militaries with regards to protecting civilians during armed conflict. Recognizing the central strategic and operational significance of POC in operations for establishing a mission’s credibility and legitimacy, the policy establishes core POC tasks for integration into NATO operations. The policy notes that the POC includes “all efforts taken to avoid, minimize, and mitigate the negative effects that might arise from NATO and NATO-led military operations on the civilian population and, when applicable, to protect civilians from conflict related physical violence or threats of physical violence by other actors, including through the establishment of a safe and secure environment.”202 NATOs approach to POC includes “a range of activities up to and including the use of force, as appropriate, to prevent, deter, pre-empt, and respond to situations in which civilians suffer physical violence or are under threat of physical violence.”203 There is also emerging evidence of commitment to these obligations at a national level. For example, the United Kingdom’s Human Security, Counterinsurgency, and Joint Targeting 199 Williams, 2010. 200 Keenan and Beadle, 2015; Williams, 2010. 201 United Nations Department of Peace Operations, 2019. 202 Ibid. 203 Williams, 2010. 77 doctrine consider their protection obligations both in terms of proactive military tasks as well as harm mitigation requirements. Similarly, the Australian Defence Force’s targeting doctrine is rife with references to civilian harm mitigation, consequence management and its centrality to counterinsurgency success.204 Most recently, in August 2022, the United States military released the first Civilian Harm Mitigation and Response Action Plan (CHMRAP) setting out its commitments to protect civilians from harm resulting from its own operations and establishing robust mechanisms within and outside the armed forces to inform future protection requirements.205 NATO has further set out intersecting commitments to prioritize human security and the protection of civilians in its new Strategic Concept released in June 2022 and its Human Security approach and guiding principles released in October 2022. These commitments are central to achieving the strategic objectives of counterinsurgencies. As shown in Figure 2.3 below, each of these protection priorities directly supports counterinsurgency efforts to establish the key components of normative, procedural, and performance-based legitimacy as outlined in Alagappa’s framework. Beginning from the top of the of the diagram, I theorize that if, as counterinsurgency strategy states and the literature demonstrates, the primary objective of counterinsurgencies is to deny insurgents objectives and that the primary way of doing so is to separate insurgent forces from their existing and potential bases of support, the overarching strategic requirement of counterinsurgencies is to erode insurgent legitimacy while establishing counterinsurgents as the legitimate authorities. To establish counterinsurgents as legitimate authorities, they must win the consent and support of the population by restoring the expectations of the social contract—notably that the population feels confident in sacrificing some of their natural freedoms in order to access the benefits legitimate authorities can provide in terms of security, protection, and stability. In order for the social contract to be re-established in the counterinsurgents’ favour, they must demonstrate their legitimacy by undertaking actions that align with and are responsive to the populations’ expectations of legitimate authorities. To do so, they must undertake actions that demonstrate that counterinsurgents share morals, ethics, and values with the population (normative legitimacy), can and do conform with established national and international norms and rules 204 Australian Defence Force, Australian Defence Force Doctrine Publication 3.14 Targeting (2006/2018), https://iihl.org/wp-content/uploads/2018/04/ADDP_3_14_Targeting.pdf. 205 US DOD, Civilian Harm Mitigation and Response Action Plan, 2022, https://media.defense.gov/2022/Aug/25/2003064740/-1/-1/1/CIVILIAN-HARM-MITIGATION-AND-RESPONSE-ACTION-PLAN.PDF. 78 (procedural legitimacy), and can and will properly and effectively use state power (performance-based legitimacy). To demonstrate this, many tasks can be undertaken, though security-related tasks are seen as the baseline requirement for achieving legitimacy in the eyes of the population. Thus, two objectives must be prioritized to achieve the core physical protection-related objectives: protecting the population from physical harm and ensuring rule of law and good governance is established and respected so appropriate justice and accountability mechanisms are available to the population when civilian harm does occur. For the physical safety and security of the population to be upheld, counterinsurgents must demonstrate their ability to both proactively protect civilians (through anticipatory action to reduce or remove future threats to their safety or security and by proactively mitigating risk to civilian populations that could result from their own actions) and take undertake responsive protection tasks to protect civilians from imminent harm arising from insurgent violence or dynamic counterinsurgency operations. In doing so successfully, the civilian population can be protected from imminent and future harm and counterinsurgents are able to demonstrate their ability to meet the normative and performance-based expectations civilians hold with regard to their physical security, while also demonstrating their ability to comply with civilians’ procedural expectations through robust civilian harm mitigation practices in the course of their operations. 79 Figure 2.3: Visual Overview of COIN–POC Strategic-Level Theory of Change 80 However, the same logic informs how the achievement of counterinsurgency objects can be damaged or seriously inhibited when protection issues are not approached in alignment with the populations’ normative, performance-based, and procedural expectations in mind. In cases where counterinsurgents have not proactively protected populations from imminent or future risk of insurgent violence or have failed to mitigate civilian harm arising from their own operations, planned or dynamic, the contingent logic takes a negative turn. In such cases where the physical safety and security is not ensured, counterinsurgents struggle to demonstrate alignment with the population’s normative, performance-based, and procedural expectations of legitimate actors. Thus, counterinsurgents are then unlikely to be perceived as responsive to populations’ expectations, and the social contract is unlikely to be restored as civilians are likely to seek protection elsewhere, recalculating the relative levels of protection counterinsurgents versus other actors can provide to them and the consent of the population is unlikely to be won. Thus, counterinsurgents will be unable to meaningfully establish legitimate authority or deny insurgents objectives. In sum, when counterinsurgents can protect the civilian population from imminent and future harm through proactive protection actions and mitigation activities, the population’s normative, procedural, and performance-based protection expectations are likely to be realized and the relative support of the population is likely to tip in the balance of counterinsurgents. Where population’s normative, procedural, and performance-based protection expectations are not met, civilians are likely to re-evaluate counterinsurgents’ legitimacy and recalibrate their perceptions and support relationships vis a vis other actors, sometimes including insurgent adversaries. 2.6 The Strategic Value of Civilian Harm Response and Compensation Despite significant strides being made in military POC approaches, international coalitions are still losing public support in counterinsurgency and counterterror operations, one fallen civilian at a time.206 As militaries have worked to mitigate civilian harm and proactively protect communities from external threats, a harsh reality is consistently overlooked. It is not feasible to expect civilian casualties during modern counterinsurgency operations to be reduced to zero. The 206 CIVIC, Losing the People: The Costs and Consequences of Civilian Suffering in Afghanistan. (Washington: CIVIC, 2009); Christopher Rogers, Civilian Harm and Conflict in Northwest Pakistan, CIVIC (2010). 81 realities of modern warfare, the largely urban battlegrounds associated with modern counterinsurgency campaigns, and the devastating impacts of contemporary weapons used by both insurgents and counterinsurgents makes striving for zero casualties a noble but unrealistic quest.207 A realistic understanding of the extent to which civilians can be protected and civilian harm mitigated is needed, as is better planning for how counterinsurgents respond when civilian harm does occur in order to meaningfully develop protection strategies that can meet the expectations of the population and contribute towards counterinsurgency goals. The ways in which counterinsurgents respond to civilian harm incidents matters greatly to their ability to retain legitimacy in the eyes of the public in the aftermath of civilian harm incidents. Billions of dollars have been spent to win, keep, and rebuild affected communities, but it only takes seeing one survivor or family maltreated and ignored by military forces in the aftermath of civilian harm for a community to turn against a counterinsurgency effort.208 Thus planning for civilian harm response is an equally vital part of a military’s civilian protection requirements in order to protect its strategic objectives. Yet, while ad-hoc civilian harm response was a significant part of early counterinsurgency efforts in Afghanistan and Iraq, as efforts to mitigate civilian harm resulting from counterinsurgency operations has grown, efforts to effectively manage the response to these incidents have largely been abandoned. As a result, even as Western coalition forces have begun to embrace the strategic importance of civilian protection and develop long awaited doctrine, policy, and procedures to manage and mitigate civilian harm risks, they have systematically deprioritized the development of comprehensive harm response frameworks. This has meant that despite decades of use, thousands of payments, and hundreds of millions of dollars spent on civilian harm compensation, these processes remain largely ad-hoc, 207 Such circumstances are often representative of the doctrine of double effect, namely, that non-combatants are often endangered not because anyone sets out to attack them, but only because of their proximity to a battle that is being fought against someone else. The principle of double effect aims to provide specific guidelines for determining when it is morally permissible to perform an action in pursuit of a good end in full knowledge that the action will also bring about bad results. Although there has been significant disagreement about the precise formulation of this principle, it generally states that, in cases where a contemplated action has both good effects and bad effects, the action is permissible only if it is not wrong in itself and if it does not require that one directly intend the evil result. Most formulations of the principle of double effect require that four conditions be met if the action in question is to be morally permissible: first, that the action contemplated be in itself either morally good or morally indifferent; second, that the bad result not be directly intended; third, that the good result not be a direct causal result of the bad result; and fourth, that the good result be proportionate to; the bad result. Supporters of the principle argue that, in situations of double effect; where all these conditions are met, the action under consideration is morally permissible despite the bad result. The principle or doctrine of double effect underpins most contemporary joint targeting protocols and pre-targeting matrices designed to evaluate the relative ‘collateral damage’ estimates against the proposed strategic gains of a strike. 208 Ibid. 82 difficult to navigate, and misaligned to the strategic objectives of counterinsurgency campaigns as well as civilian needs and expectations. 2.6.1 Civilian Harm Reparations and Compensation in Context One of the key ways in which counterinsurgents have engaged in civilian harm response is using civilian harm compensation payments. Known by many names, including condolence payments, solatia, and amends, these payments differ from other types of reparations both in terms of motivation and function. The term ‘reparations politics’, coined by John Torpey, is defined as “the broad field within which actors, primarily states, attempt to address past wrongs. It includes a spectrum of redress and reparation acts, including: transitional justice, apologies, restitution, and other terms.”209 As Orend argues, the term ‘reparation’ refers to some form of symbolic material compensation “for that which cannot be returned, such as a human life or limb, a flourishing culture, strong economy, or cultural identity.”210 In this work, the term ‘reparations’ will be used to refer to a specific reparation act that is undertaken in response to illegal harm and is legally obligated, whereas forms of post-harm compensation in response to legal harm, such as condolence payments, while still definitionally ‘reparations,’ will be referred to as ‘civilian harm compensation’ payments for clarity. In addition to these monetary forms of reparation, non-monetary reparations, including apologies, expressions of regret and contrition are another crucial element of reparations politics. Elazar Barkan defines an apology as “an admission of wrongdoing, recognition of its effects, and in some cases, an acceptance of responsibility for those effects, and an obligation to its victims.”211 As an apology is often understood to be the acceptance of some measure of responsibility and an admission of guilt, states often delay or refuse to issue apologies to avoid legal responsibility or to deny the event has occurred. Instead, some forms of civilian harm compensation in cases of legal harm will be accompanied by expressions of regret or contrition over the harm caused, without an admission of wrongdoing or guilt. There are widely considered to be five overall motivations for international actors to engage in the disbursement of reparations, amends, or compensation in the aftermath of civilian harm. The 209 John Torpey. Making whole what has been smashed: On reparations politics. (Cambridge: Harvard University Press, 2006). 210 Brian Orend. “Kant’s Ethics of War and Peace.” Journal of Military Ethics 3.2 (2004), 161-177. 211 Alexander Barkan. Taking Wrongs Seriously: Apologies and Reconciliation. Stanford: Stanford University Press (2006). 83 first is relatively straightforward. A legal obligation for reparations is enshrined in international law in instances of unlawful civilian harm. Reparations for unlawful civilian harm (genocide, war crimes, ethnic cleansing, and crimes against humanity) are highly institutionalised and legalized.212 These types of legal obligations for condolence payments are evident in the 1991 UN Compensation Commission on Kuwait, the Inter-American Court of Human Rights for Enforced Disappearances Cases, the 1981 Claims Settlement Declaration preceding the Iran-US Claims Tribunal, and programs created as part of peace agreements, such as the 1996-2003 Commission for Real Property Claims of Displaced Persons and Refugees in Bosnia and Herzegovina and the 2000 Eritrea-Ethiopia Claims Commission. A solidarity motivation for condolence payments can occur in instances of lawful, unlawful, or grey zone harm and is often the motivation behind victim’s assistance programs in instances of terrorism. This was the driving rationale behind the Israeli Monetary Payment Program for Terrorism and War Victims and the US Victims Compensation Fund, created after 9/11. Additionally, the solidarity rationale can also be seen in armed conflict situations. The Afghan and Iraqi governments have both rolled out compensation programs to “financially assist civilians suffering the loss of a loved one or who are injured themselves irrespective of who caused the harm.”213 Another rationale for providing reparations is transitional justice. These types of payments occur exclusively in instances of unlawful harm and such monetary payment programs are a substantial aspect of reparative justice techniques in transitional justice mechanisms. These types of payments are disbursed in situations of gross violations of “international humanitarian or human rights law that qualify victims for formal reparation. Essentially, reparations are aimed at undoing the effects of violations and this makes monetary payments a central element in many cases.”214 Examples of transitional justice reparations programs include programming rolled out by newly established governments in Argentina, Hungary, and Chile. Similarly, transitional justice motivations were also a factor in the South African reparations payments for gross human rights violations during apartheid, and in the establishment of the ICC Trust Fund for Victims. 212 See the Geneva Conventions, UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277; UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998. 213 Van Dijken et al., 2014.. 214 Ibid. 84 Ethical obligations, on the other hand, are rarely a stand-alone rationale for reparations, amends, or compensation in the aftermath of civilian harm and they are almost always coupled with other rationales. Ethical obligation can be evident across cases of lawful, unlawful, and grey zone harm situations as the motivation is not based on the strict legality of the harm caused but the moral and ethical obligations such harm has on belligerents in reference to victims and their communities. These rationales are evident in many cases but are most apparent in post-conflict programming. For example, the Mass Claims Processes, the German Forced Labour Compensation Program, the Holocaust Victim Assets Program, and the American Japanese Civil Liberties Act of 1988. 2.6.2 Civilian Harm Response and Compensation as Strategic Advantage The fifth obligation of strategic advantage speaks directly to the legitimacy-centric objectives of counterinsurgency. As modern counterinsurgents have and continue to expend great efforts to win the support of the civilian population, there are few times their strategic objectives are more at risk of failure than in the aftermath of an incident of civilian harm counterinsurgents have caused as a result of their own operations. Having established the indivisibility of civilian expectations of protection and the legitimacy-centric objectives of counterinsurgencies, in the aftermath of a civilian harm incident, one can expect the breakdown of counterinsurgents’ legitimacy as civilians are likely to negatively update their evaluation of the perpetrators’ intentions and their (mis)alignment with population expectations of legitimate actors. If counterinsurgents do not act following a civilian harm incident, civilians are likely to begin re-evaluating their support of counterinsurgents and recalibrating the tacit and explicit ways in which they support counterinsurgency forces. Without intervention, significant risks form with regards to the operational and strategic level aims of the counterinsurgency operation, ultimately threatening counterinsurgents’ abilities to demonstrate their legitimacy, win the support of the population, and deny an insurgent victory. To mitigate these implications in the aftermath of civilian harm incidents, counterinsurgents may employ ‘consequence management’ approaches. Also known as civilian harm response mechanisms–which include reporting mechanisms, initial assessments, civilian harm investigations, and compensation and amends– these methods are generally employed to collect information, understanding the situation, investigate the 85 circumstances, and ultimately provide mechanisms through investigation, accountability, and compensation and amends procedures that may help to calm tensions, secure vital civil-military relations and information flows, reduce force protection risks, and regain legitimacy in the aftermath of a civilian harm incident. These mechanisms, rather than being motivated by purely ethical, legal, or solidarity obligations, represent a potential solution to an ethico-strategic dilemma– namely how conflict actors can manage the strategic consequences of a civilian harm incident and restore population confidence in their intentions and legitimacy while denying the opportunity for adversaries to capitalize on the incident to gain support. In effect, the strategic use of civilian harm compensation payments in counterinsurgency were never intended as a way of making amends for the harm caused to civilians or ‘fixing’ unfixable harm, but rather the legitimacy-centric nature of counterinsurgency has necessitated their use as a tool to mitigate or manage the strategic costs of such incidents. Yet, as with counterinsurgency writ large, the strategic success of this approach is fundamentally based in counterinsurgents’ abilities to engender reconciliation between themselves and affected communities by meeting their needs and aligning with the population’s expectations of what legitimate actors should do in the aftermath of civilian harm. Only then can counterinsurgents retain or regain the legitimacy and support they have lost in the aftermath of a civilian harm incident. In modern counterinsurgency efforts, civilian harm compensation and amends payments are a key component of these efforts. They provide mechanisms to re-demonstrate counterinsurgents’ commitments to civilian protection and alignment with the normative, procedural, and performance-based expectations the population holds of them. Yet, they also provide important protections for the counterinsurgency force– these payments are ex gratia, not legally required, and are not to be considered admissions of guilt. They are a strategic choice, but not a legal obligation and serve as a symbolic condolence to individuals or families impacted by legal civilian harm incidents caused in the course of counterinsurgency operations.215 In tracing the strategic imperatives that underpin condolence payment programs, Thomas Gregory echoes the validity of the strategic advantage rationale of these payments, arguing that 215 Centre for Army Lessons Learned, Money as a Weapons System, April 2009, https://usacac.army.mil/sites/default/files/publications/09-27.pdf. 86 the use of civilian harm compensation payments in counterinsurgency should not be understood as a humanitarian gesture based on normative and ethical motivations.216 Instead, they should be understood as the military markets them to their forces internally— as a weapons system aimed at securing specific military goals and thus, as this approach to their use reigns, civilian harm compensation in counterinsurgency operations largely represents a ‘politics that misses the people,’ failing to account for the agency and influence of civilians in its strategic theorization.217 These sentiments are backed up by recent empirical research undertaken by Daniel Silverman. Using micro-level conflict event data on 4,046 condolence payments made by Coalition forces to civilian victims in Iraq from 2004-2008 and matching it with corresponding data on collateral damage and insurgent violence, he finds that post-harm compensation significantly diminishes local rates of insurgent violence.218 These two studies ask important questions— what are the motivations behind the use of civilian harm compensation and, ultimately, are they effective in achieving strategic aims? However, both stop short of making a full assessment of the ‘effectiveness’ of civilian harm compensation in counterinsurgency. While Gregory makes a convincing case that compensation payments are an important tool for military commanders to use in population-centric warfare, he does not evaluate whether these payments are effective for achieving the military-strategic aims they seek in their current form. Similarly, while Silverman argues that post-harm compensation acts as a ‘costly signal’ of selective violence and unintentional harm, leading civilians to rationally update their beliefs about the relevant event, his approach and methodology results in the assumption that the effectiveness of these payments in counterinsurgency campaigns is determined only by the increase or reduction in retaliatory violence. Yet the contemporary use of these payments based on a strategic, legitimacy-centric rationale is predicated on several reductionist assumptions– notably that a monetary payment, regardless of amount, disbursement process, and recognition of harm done will be enough to assuage the strategic risks that a civilian harm incident causes for counterinsurgents’ legitimacy and popular support. There is little evidence to demonstrate that such logic applies in cases of civilian harm in counterinsurgency. 216 Gregory, 2020. 217 Ibid. 218 Silverman 2021. 87 In fact, despite thousands of payments made in response to civilian harm incidents, amounting to hundreds of millions of dollars, in Iraq and Afghanistan, there are comparatively few studies of the use of civilian harm compensation in the literature. Building on the work of Gregory and Silverman, the subsequent chapters presented here undertake an evaluation of the effectiveness of civilian harm response and compensation in counterinsurgency operations using a survivor-centric theory of effectiveness. Having elucidated the centrality of civilian protection expectations to achieving a counterinsurgency’s legitimacy-centric goals we can expect that the perceptions of survivors, their families, and communities will also be a central determinant of the effectiveness of civilian harm compensation approaches. The role of the civilian harm response and compensation process is documented visually in Figure 2.4 below. When a civilian harm incident is caused by the counterinsurgency force, civilian populations are likely to negatively update their perception based on this new information regarding counterinsurgents’ wartime intentions and commitment to protecting civilians, leading to an increased risk of operational and strategic consequences for counterinsurgents’ objectives. To manage these consequences, counterinsurgents undertake a range of responses to attempt to retain or regain legitimacy and population support. The degree to which these responses are undertaken, and the population’s perception of their ability to meet their normative, procedural, and performance-based expectations will determine the degree to which counterinsurgents are able to retain or regain legitimacy and population support in the aftermath of civilian harm incidents and, crucially, deny insurgents an opportunity to capitalize on the incident. 88 Figure 2.4: The Role of CHRC in COIN Strategic-Level Logic 89 For instance, as depicted starting from the bottom of the diagram in Figure 2.4, when a civilian harm incident occurs, civilians’ primary determinant of legitimacy—notably counterinsurgents’ ability to protect civilians proactively and responsively from harm as a result of insurgents’ operations and their own operations—results in an immediate loss of legitimacy across normative, procedural, and performance-based determinants. If they do not take action to manage the consequences of this lost legitimacy, this will result in decreased levels of counterinsurgent legitimacy, resulting in some civilians shifting their level of support for counterinsurgents either to a neutral middle view or to support insurgent groups directly or indirectly. However, if consequence management approaches are undertaken in the aftermath of civilian harm incidents, some of these legitimacy-centric consequences can be offset (not fully negated), as counterinsurgents seek to demonstrate legitimacy in alternate ways through the response and compensation process. By establishing robust reporting and initial assessment procedures, counterinsurgents can demonstrate procedural legitimacy. By undertaking fair and transparent investigations into each incident, both procedural and performance-based legitimacy can be demonstrated, and by undertaking comprehensive, culturally sensitive compensation and amends processes that meet the needs of survivors and their families, normative legitimacy can be demonstrated. Thus, civilian harm response and compensation can be a key tool in the counterinsurgency toolbox for managing the strategic consequences that result from civilian harm incidents. However, it is important to note that while civilian harm response and compensation can provide these positive strategic benefits for counterinsurgents in the aftermath of civilian harm incidents, they can only meaningfully offset some of the legitimacy-centric consequences of the civilian harm if the response and compensation process undertaken in each incident is effective in meeting the needs and expectations of affected communities. If undertaken with survivor needs and expectations at the centre, counterinsurgents can see ‘stopgap’ benefits in the form of reduced tensions and stabilized relations with the affected populace. However, these benefits are likely to remain fragile and require long-term management to consistently redemonstrate alignment with the affected population’s expectations of legitimate actors. However, in cases where response and compensation are undertaken but where the needs and expectations of survivors, their families, and communities are not accounted for in a meaningful way throughout 90 the process, further offense can be caused for these communities, compounding the strategic legitimacy costs for counterinsurgents that resulted from the initial event. Understanding the importance of meeting the needs and expectations of survivors, their families, and communities in the aftermath of civilian harm incidents to offset counterinsurgents’ legitimacy costs, how do we determine what ‘effectiveness’ is in a survivor-centric approach to civilian harm response and compensation? Further, in what specific ways do civilian perceptions of the effectiveness of post-harm response and compensation influence the success of counterinsurgents’ strategic pursuit of legitimacy? At the core of the interplay between counterinsurgency objectives and civilian needs and expectations regarding civilian harm compensation sit two key concepts– forgiveness and reconciliation. Legitimacy is unlikely to be retained or regained if progress towards each cannot be attained. Therefore, establishing the conditions for forgiveness and reconciliation to take place between counterinsurgents and affected communities is predicated on meeting the reparative needs and expectations of civilians in the aftermath of harm.219 Given the centrality of civilian’s post-harm needs and expectations in achieving these aims, interviews were undertaken with survivors, family and community members, and eyewitnesses to civilian harm incidents to identify the key factors they felt were central to the ‘effectiveness of post-harm compensation and amends. The factors identified by participants encapsulate issues that span the entire post-harm experience, from their experiences with reporting the incident itself, through assessments, investigations, and finally compensation processes. Within this, participants collectively identified seventeen categories of factors which influenced their perceptions of whether the compensation they were provided was, ultimately, effective. An indicative overview of these factors at the tactical level is included in Table 2.2 below. Each of these factors contributes to civilians’ perceptions of normative, procedural, and performance-based legitimacy in different ways, which are captured in the final column of the table. Table 2.2: Indicative Overview of Civilian-Generated Factors of Effectiveness at the Operational and Tactical Level220 219 Christie 2006; R.D. Enright. Forgiveness is a choice: A step-by-step process for resolving anger and restoring hope. (Washington, DC: American Psychological Association, 2001). 220 Factors presented here were identified through interviews with affected civilian communities in collaboration with the Centre for Civilians in Conflict (CIVIC). 91 Theory Stage Factor Category Factor Legitimacy Alignment Reporting Receipt of reports Do COIN forces provide mechanisms to facilitate the receipt of information about incidents of civilian harm from external actors? Procedural Barriers to Reporting Do barriers exist that may inhibit reporting (language, culture, access, safety)? Do COIN forces provide reporting options that mitigate these barriers? Performance; Normative Internal Reporting Is internal reporting required and encouraged? Procedural Safeguarding Are reporters (internal and external) safeguarded from the risk of reprisals and punishment? Normative; Performance Transparency & Communication Is the reporting process fair and transparent? During the process, do COIN forces keep reporters updated on progress in a timely and accessible manner? Normative; Performance Initial Assessment Fairness and Transparency Are all reports of civilian harm taken seriously by COIN forces? Is the assessment process fair and impartial? Is the assessment process clearly communicated to reporters? Normative; Performance Comprehensive Assessment Are initial assessments undertaken for all reports of civilian harm? Procedural Competent Authority Referral Are reports of civilian harm and possible violations of law passed to a competent authority for further investigation? Are these referrals completed in a timely manner and reporters kept informed? Procedural; Performance Investigation Investigation of all credible reports How is the credibility of a report evaluated? Are all credible reports investigated promptly? Is relevant information and documentation obtained from all internal and (to the extent feasible) external sources? Procedural; Performance Witness interviews and site visits Are site visits and witness interviews conducted? Where infeasible, are alternative options pursued or explanations given to interested parties? Are measures taken to protect the privacy and security of witnesses and survivors, including from punishment or reprisal for their participation? Is clear and transparent communication maintained with survivors throughout the investigation? Procedural; Performance; Normative Post-Investigation Do final reports include a description of the process followed, evidence consulted and included information about factual and legal findings, and recommendations for amends (where applicable) and preventing recurrence of harm? Is there a mechanism for appeal available? Procedural Criminal Investigation Are incidents of a suspected criminal nature referred to an independent, impartial investigative authority? Procedural, Normative Compensation & Amends Process for Compensation Is the process for seeking compensation and amends considered (a) fair, (b) effective, (c) timely, (d) transparent, (e) adequately resourced? Do barriers exist within the process (language, culture, access, safety)? Do COIN forces provide reporting options that mitigate these barriers? Procedural, Performance Acknowledgement Do counterinsurgency forces publicly and/or privately acknowledge responsibility for harm to victims and survivors? Normative Cultural Appropriateness and Sensitivity Are the policies, processes and procedures associated with compensation and amends considered culturally appropriate? Are the policies, processes and procedures associated with compensation and amends sensitive and responsive to survivor, family, and local needs? Normative; Procedural; Performance Comprehensiveness Is compensation accompanied by apologies, acknowledgement, and/or expressions of regret or contrition? Normative View of Loss Is the view of loss taken in the claims process comprehensive, to include loss of life, injury, material and property loss, loss of income, psychological effects, and other immaterial loss? Normative 92 These factors will serve as the core basis for the evaluation of the survivor-centric theory of effectiveness elucidated in the previous chapter. Each maps directly to each stage of the theory contained in Figure 1.2, which is broken down into the flow chart in Figure 2.5 below in line with the theory of change in order to guide analysis. The outcomes of the case-based analysis using this flow chart will provide the overall effectiveness assessments of each case. These effectiveness assessments—either ‘effective’, ‘partially effective’ or ‘ineffective’ will allow us to make determinations as to how the outcomes of CHRC efforts in each case maps to the achievement of counterinsurgency strategic objectives within the ToC following civilian harm incidents. 93 Figure 2.5: CHRC Factors by Stage Flowchart mapped to ToC 94 This empirical evaluation is undertaken in Chapters 3, 4 and 5, exploring the effectiveness of these payments in nine identified cases of civilian harm during contemporary Western Coalition operations, their contributions to the legitimacy-centric goals of the mission, and the ways in which civilian perceptions of these payments’ effectiveness influence the achievement of counterinsurgency objectives. 2.7 Conclusion This study represents an effort to tread new ground as it relates to the study and practice of civilian harm, reparations politics, and their applications in counterinsurgency warfare. Deviating from the dominant thinking around the use of civilian harm in counterinsurgency, this project pivots away from ethical and legal analyses of their use to better understand the ways in which the strategic objectives of counterinsurgents in the aftermath of civilian harm incidents are directly and indirectly influenced by the needs and expectations of affected communities. In doing so, I strive to provide useful insights into the effectiveness of civilian harm compensation as a counterinsurgency tool, while also demonstrating the integral role that civilians' voices, needs, and expectations have in the effectiveness of these processes. Now that this study has been grounded in clear definitions of key issues and has assessed existing wisdom on the topic, the subsequent chapters will evaluate the survivor-centric theory of effectiveness through the empirical exploration of nine cases of civilian harm and compensation that have occurred in Iraq, Afghanistan, and Syria over the past two decades. 95 Chapter 3: Inconsistent and Inadequate Civilian Harm Response and Compensation during the Iraq War, 2003 to 2011 3.1 Introduction In March 2003, when US forces invaded Iraq to search out and destroy Iraqi weapons of mass destruction and bring an end to Saddam Hussein’s rule there was little concept of how long, brutal, and bloody the resulting conflict would be for Iraqi civilians. While many Iraqis living under Saddam’s violent dictatorship supported the US-led Coalition that invaded Iraq in the early days, as the intelligence concerning weapons of mass destruction in the country proved to be flawed, a violent insurgency and widespread sectarian conflict arose, with the American coalition rapidly losing public support. The American military occupation rapidly shifted to a counterinsurgency campaign that spanned the country, attempting to diminish the influence and military capability of multiple insurgent and terrorist organizations, while simultaneously managing widespread sectarian conflict. The period of active counterinsurgency and counterterror operations in Iraq spanning 2003 to 2011 resulted in the deaths of over 4,700 American and allied troops and more than one hundred thousand Iraqi civilians.221 The success of the counterinsurgency campaign in Iraq during this time was significantly influenced by the level of civilian harm occurring at the hands of counterinsurgents within the country. By July 2006, monthly casualty counts were staggering, with estimates hovering between 1,000 and 3,500 civilian deaths in that month alone.222 As Bush authorized a surge of 20,000 additional troops in early 2007, new directives began to be issued to reign in the high numbers of civilian casualties that were wreaking havoc on Coalition forces’ ability to achieve their population-centric objectives. This context provides a useful opportunity to examine both the emergence of civilian harm response processes and their evolution over time during the coalition campaign in Iraq. Thus, these cases provide a useful insight into the ways in which civilian harm response emerged, shifted, and changed over the course of the campaign in Iraq, 221 Dustin Carpenter, Tova Fuller, Les Roberts, “Wikileaks and Iraq Body Count: the sum of parts may not add up to the whole– a comparison of two tallies of Iraqi civilian deaths” Prehospital Disaster Medicine 28.3 (2013), 223-9. 222 Michael E. O’Hanlon and Jason H. Campbell. “Iraq Index: Tracking Variables of Reconstruction and Security in Post-Saddam Iraq”, Brookings, July 16, 2009, https://www.brookings.edu/wp-content/uploads/2016/07/index20090716.pdf. 96 and a look into the ways in which civilian harm response and compensation was considered and used strategically at different stages and in different contexts within the counterinsurgency campaign. 3.2 Overview of Cases The cases under study in this Chapter represent three incidents of civilian harm for which reports, both internal and external to the US Coalition, document Western responsibility. They range in location, number of casualties, and the type and form of response undertaken by the Coalition. These cases, as well as their key features, are detailed below in Table 3.1. Table 3.1: Overview of Cases in Iraq Date Location Specific Location Responsible Force Type # killed # injured Investigation status Compensation status June 26, 2003 Baghdad, Iraq Hay Al Jihad neighbourhood US 82nd Airborne Ground (shooting) 1 0 Not completed Partial* Aug 28, 2005 Hay al Adel, Baghdad Unknown US Coalition Airstrike 1 1 Completed Yes Dec 31, 2006 FOB Speicher Unknown US Coalition Ground (mortar) 1 1 Completed Yes The information provided includes the date, location and geo-coordinates of the incident, the attribution of the harm caused, level of casualties (both deaths and injuries), information regarding whether an investigation into the incident was completed by the Coalition and whether compensation was provided. This information assists in indicating whether civilian harm response processes are interpreted to be effective or ineffective by civilians impacted by the strikes and whether these perceptions influence how they view the legitimacy of the Coalition. The following section provides a brief overview of the Iraq War, the role civilian harm played in the counterinsurgency and the ways in which civilian harm response and compensation was utilized within counterinsurgency strategy in Iraq. 97 3.3 The Iraq War, Civilian Harm, Response and Compensation On March 20, 2003, after months of steadily increasing news coverage of the US intelligence community’s suspicions regarding weapons of mass destruction being produced and hidden in Iraq, President George W. Bush announced the start of a military operation in the country. Noting that the coming weeks could represent the start of a ‘broad and concerted campaign,’ initial US operations in Iraq sought to erode the Iraqi government from their air, targeting key government leaders, entities, and buildings with airstrikes.223 However, as airstrikes failed to have their intended effect, a full-scale ground invasion was launched in the days that followed, with the Iraqi Ba’athist regime falling to US, British and other coalition forces 20 days after the start of the war. Coalition forces swiftly took power following the removal of the government, overwhelming the Iraqi military, and taking control of the country through formal occupation in the weeks that followed. By May 2003, President Bush declared the first stage of the war to be won, including the end of major combat operations.224 However, in the weeks that followed, members of the Iraqi army continued to fight against Coalition forces, ultimately forming a core part of a strong and unflinching insurgency campaign by late May 2003. By June, the Iraqi army had been formally disbanded—a decision that had lasting repercussions as large numbers of former military officers and soldiers swiftly joined the insurgency. The insurgency gained significant strength over the rest of 2003, though with Saddam Hussein’s capture in December there was renewed hope amongst the Coalition that this event may represent a turning point. However, amidst high rates of civilian casualties, accusations of human rights abuses and torture at Abu Graib prison, and the public recognition that the WMD intelligence had been wrong, confidence in and support for Coalition forces diminished and discontent and retaliation amongst the civilian population grew rapidly during 2004.225 By 2005, some hope was beginning to return. Although there were widespread instances of violence during 2005, elections proceeded and Iraq voted on both a constitutional referendum and, shortly thereafter, voted in their first, full-term government.226 Yet, by 2006, sectarian unrest had boiled 223 White House. “President Bush Addresses the Nation.” March 19, 2003, https://georgewbush-whitehouse.archives.gov/infocus/iraq/news/20030319-17.html. 224 White House, “President Bush Announces Major Combat Operations in Iraq have Ended.” May 1, 2003, https://georgewbush-whitehouse.archives.gov/news/releases/2003/05/20030501-15.html. 225 Council on Foreign Relations. “The Iraq War: 2003-2011”, https://www.cfr.org/timeline/iraq-war. 226 Mark Oliver, “High Turnout in Iraqi Elections,” The Guardian, 15 December 2005, www.theguardian.com/world/2005/dec/15/iraq.iraq. 98 over into violence. The bombing of a Shiite shrine in Samarra by Sunni extremists ushered in a new wave of violence that would continue unabated for years.227 The months and years that followed were particularly bloody. Battling an ongoing insurgency led by Abu Musab al Zarqawi’s faction of Al Qaeda in Iraq (AQI) and widespread sectarian violence, the human toll of the conflict on civilians reaches an all-time high in July 2006.228 The timing of Saddam Hussein’s trial and execution only served to fuel further violence, with Shiite communities loyal to the former leader vowing to take revenge against Coalition forces.229 By the end of 2006, it was widely recognized that Coalition forces were losing the war and the support of Iraqi people. In an effort to turn the tide, Bush announced a ‘surge’ of over 20,000 additional US troops to reclaim stability, along with the appointment of General David Petraeus, a renowned counterinsurgency expert, to lead Coalition forces in Iraq.230 Changing tactics, Petraeus brought a hearts and minds-focused campaign to Iraq by shifting the perspectives of Sunni tribes to fight alongside US forces and simultaneously emphasizing the importance of building trust with Iraqi communities and protecting civilians from harm. These focus areas become key components of Coalition counterinsurgency approaches utilized in Iraq and formed part of the framework used to train the new Iraqi military over the coming years. The focus on mitigating civilian harm in Iraq as a core component of counterinsurgency policy remained high, and by 2008, civilian casualty rates had reduced substantially. Yet civilian harm response mechanisms, including post-harm compensation, have not had much effect on smoothing tensions in the aftermath of civilian harm incidents where they do continue to occur. While some successes had been recorded in Afghanistan, levels of payments, incident investigations, and civilian expectations varied significantly between the two countries and in early instances of civilian harm response in Iraq, it seemed Coalition approaches were significantly out of line with Iraqi expectations. Despite high levels of civilian harm, the US Foreign Claims Act (FCA), which allows inhabitants of foreign countries to request compensation for negligent or wrongful acts by US forces that result in death, injury, or loss of 227 Michael Howard, “Iraq slips towards civil war after attack on Shia shrine,” The Guardian, 23 February 2006, https://www.theguardian.com/world/2006/feb/23/iraq.iraqtimeline1. 228 Council on Foreign Relations. “The Iraq War: 2003-2011”, https://www.cfr.org/timeline/iraq-war. 229 Ibid. 230 Ibid. 99 property, was the only formal mechanism that existed to seek compensation at this time. Yet, under the FCA, payments could not be authorized for “damage, injury or death that results from combat activities of US forces.”231 As a result, no civilian harm incidents that resulted from the US Coalition’s invasion activities between March 20, 2003, and May 1, 2003, were eligible for compensation under the FCA. Similarly, any incidents of civilian harm that were caused by ‘combat activities’, broadly defined, after May 1, 2003, were also ineligible under this mechanism. This left many civilians who had lost loved ones or experienced injuries as a result of US operations without options to pursue justice, accountability, or basic assistance and left Coalition forces with growing discontent amongst impacted communities. The US military began to recognize the gaps this left in their civilian harm response strategy, and even noted publicly that in their own understanding, what defines ‘combat activities’ was remarkably unclear in the context of Iraq.232 With this in mind, mechanisms for civilian harm investigation, both administrative and criminal, were adopted and informal mechanisms for civilian harm compensation for cases excluded by the FCA, known as condolence and solatia payments, were also put in place—similar to those simultaneously being adopted by US forces in Afghanistan. As one US spokesperson in Iraq noted, for those instances where we believe 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 an administrative investigation (an AR 15-6 investigation) appointed by the commander, or by military law enforcement authorities, depending on the facts of the particular case.233 However, determinations of wrongful acts or violations of the rules of engagement were not requirements for post-harm compensation in Iraq. As US coalition forces recognized the negative impact of civilian harm on their counterinsurgency strategic objectives, compensation approaches became increasingly common as part of post-incident ‘consequence management’ procedures in an effort to mitigate the negative effects of an incident on Coalition forces and their objectives. Yet, as Australian Colonel Mike Kelly noted to Human Rights Watch 231 2 CFR § 536.138 - Claims not payable under the Foreign Claims Act. Legal Information Institute, https://www.law.cornell.edu/cfr/text/32/536.138. 232 Human Rights Watch, Hearts and Minds: Post-war Civilian Deaths in Baghdad caused by US Forces, October 20, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian-casualties-baghdad-us-forces#_ftn105. 233 U.S. Department of Defense Briefing, Baghdad, Iraq, August 4, 2003. 100 researchers, most cases in the Iraqi context at this time were ‘not susceptible to easy dismissal or easy payment’ and Coalition practices varied widely as a result.234 While some families received compensation after an instance of civilian harm, others did not. Similarly, there was significant variation in amount, timeliness, and method of payment. While FCA claims were not capped monetarily, informal ‘condolence’ or ‘solatia’ payments generally did not exceed $2,500, with many families receiving substantially less. This variation caused significant discontent amongst affected families, many taking great offense to the minimalistic valuing of their loved ones’ lives and the unevenness of the amount of disbursements. Just six months after the start of the Iraq war, the Coalition had received 5,394 civilian harm compensation claims under the FCA, and several thousand more were processed under informal condolence and solatia mechanisms.235 Of these claims, 1,874 were denied, with the Coalition disbursing $901,545 in claims in just the first six months of the conflict.236 By the end of Coalition activities in Iraq the number of claims submitted numbered over 100,000, with monetary disbursements in the tens of millions. Thus, while civilian harm response and compensation became commonplace and relatively institutionalized in Iraq in comparison to Afghanistan civilian confidence in the effectiveness of the Coalition’s civilian harm mitigation, response and compensation system was chronically low. High rates of compensation denial under the FCA reduced confidence significantly, and the informal processes, low amounts, and culturally insensitive processes associated with condolence and solatia payments only compounded this perception. Thus, due to this wide variation in civilian harm response and compensation in Iraq, it is important to evaluate multiple cases to understand the varied impact these approaches may have had on civilian perceptions of Coalition legitimacy. The following sections explore three cases of civilian harm and the associated response and compensation processes that were undertaken. Each provides a differing perspective on the influence of the response and compensation process on the perceptions survivors, witnesses, and members of the local community in the aftermath of 234 Human Rights Watch interview with Col. Marc Warren, Col. Mike Kelly and Major P.J. Perrone, Baghdad, September 23, 2003. 235 E-mail sent to Human Rights Watch from coalition press office on September 29, 2003. 236 Ibid. 101 civilian harm incidents between 2003 and 2007 at the height of Coalition counterinsurgency operations during the Iraq war. 3.4 Mohammad Subhi Hassan al-Qubaisi, June 26, 2003, Baghdad, Iraq The heat in Iraq during the summertime is unrelenting. Often reaching well above 50 degrees during the daytime, there is very little relief at night either, with temperatures largely remaining above 30 Celsius. With no escape from the oppressive heat, sleep is often restless during these months, and families try many strategies to stay cool. Around May, as the heat begins to escalate, a country-wide ritual often begins. As darkness falls, more and more figures will begin appearing on the roofs of houses, joking, and laughing, many carrying blankets and pillows. It has become commonplace across Iraq to sleep on the roof of the family home when the heat inside becomes unbearable. A beloved seasonal pastime of the younger generations, it is not uncommon to see young boys leading the way, setting up the bedding for the night. This was the case in the al-Qubaisi home on the night of 26 June 2003. A family with four boys aged 11 to twenty, this summertime ritual was a favourite for the brothers. The two oldest loved ‘to sleep on the roof during the hot summer months’ and they made their younger brothers—11-year-old twins, Muhammad and Mustafa—carry their bedding up from their bedrooms to the roof.237 The al Qubaisi family were largely supportive of the American intervention in Iraq, particularly because in recent months since the invasion the safety in their neighbourhood of Baghdad had improved significantly. For the parents, Muhammad and Wafa’, it meant they could give their younger children more freedom to have fun, often playing in the streets during the day, and up on the roof in the evenings, a welcome change after a long period of insecurity.238 Like many Iraqis, they had held onto hope that things would get better for their family with the Americans present, and this seemed to be coming true.239 Their sons were particularly interested in US forces and their ‘cool’ equipment. As a witness noted, ‘In the beginning the children saw the Americans and their weapons and gear and binoculars and wanted to follow them and look at 237 Human Rights Watch, Hearts and Minds: Post-war Civilian Deaths in Baghdad caused by US Forces, October 20, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian-casualties-baghdad-us-forces#_ftn105. 238 Witness 4A (name withheld). Interview with author, 02/03/2022. 239 Human Rights Watch, Hearts and Minds: Post-war Civilian Deaths in Baghdad caused by US Forces, October 20, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian-casualties-baghdad-us-forces#_ftn105. 102 them.”240 They were fascinated by all of the equipment, and often interacted with US soldiers moving through their neighbourhood. However, on the night of June 26, 2003, the family’s opinions about the US Coalition changed drastically.241 As witnesses tell it, Mohammad and Mustafa were heading up to the roof to set up their older brothers’ bedding for the evening around 10:30pm.242 They were carrying large bundles of blankets as they scaled the steps but were distracted by the sight of US soldiers searching a house on the other side of a vacant lot. Having heard the commotion below, Mohammad paused and looked down into the streets below to try to get a glimpse of what was happening. He and other children in the area were fascinated by the soldiers, often going up to the roof to watch them when they were in the neighbourhood.243 As he did, one of the soldiers of the 82nd Airborne Division involved in the weapons search in the house opposite, noticed the figure standing on the roof. Seeing the figure holding a large object, he reacted, raising his weapon towards the figure above. Neighbours in the area began to shout, trying to get the soldier to stop. One witness, recounted yelling at the soldier, ‘Baby! Baby! Don’t shoot!’ but without a translator nearby, the solider did not understand them, and fired his weapon.244 At least seven shots rang out. While two bullets pierced an upstairs window, and another was found in an inside hallway of the house, several bullets hit Mohammad in the chest and side, causing him to fall forwards down the stairs.245 Muhammad’s mother recounted the event to Human Rights Watch researchers in the years that followed. ‘I was downstairs. I heard the shot and Mustafa shouted “Muhammad!” We brought Muhammad downstairs, and he was bleeding. I held him. The soldiers were moving around and when they heard the shot, they came here. Maybe they thought they had been attacked.’246 Neighbours remember encountering the soldier 240 Staff Writer, ‘Iraqi child’s family, neighbors recall shooting,’ The Record, June 29, 2003, https://eu.recordnet.com/story/news/2003/06/29/iraqi-child-s-family-neighbors/50730968007/. 241 Ibid. 242 Human Rights Watch, Hearts and Minds: Post-war Civilian Deaths in Baghdad caused by US Forces, October 20, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian-casualties-baghdad-us-forces#_ftn105. 243 Staff Writer, ‘Iraqi child’s family, neighbors recall shooting,’ The Record, June 29, 2003, https://eu.recordnet.com/story/news/2003/06/29/iraqi-child-s-family-neighbors/50730968007/. 244 Ibid. 245 Human Rights Watch, Hearts and Minds: Post-war Civilian Deaths in Baghdad caused by US Forces, October 20, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian-casualties-baghdad-us-forces#_ftn105; Staff Writer, ‘Iraqi child’s family, neighbors recall shooting,’ The Record, June 29, 2003, https://eu.recordnet.com/story/news/2003/06/29/iraqi-child-s-family-neighbors/50730968007/. 246 Human Rights Watch, Hearts and Minds: Post-war Civilian Deaths in Baghdad caused by US Forces, October 20, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian-casualties-baghdad-us-forces#_ftn105. 103 responsible for the shooting outside in the street. They remember ‘the soldier took off his helmet and sat on the ground. He pointed his gun at anyone who tried to approach or speak to him.’247 As several soldiers entered the home, one encountered Wafa’ holding her son. She recounts, ‘my child was in my lap and bleeding and the soldier came up to feel his neck. He felt nothing and he started crying.’248 Soldiers from the 82nd Airborne recount the incident differently. Having cleared a house across the road looking for weapons, they began to survey the wider area. According to Major Jenkinson, who was interviewed by Human Rights Watch investigators, the soldiers involved recount that Muhammad was not holding bedding, but an assault rifle. As he said, “The kid had an AK-47 on the steps.”249 A US military spokesman Major Sean Gibson told the press at the time of the incident, “The soldiers determined the situation was hostile and engaged the individual. It was not until after the search [of the al-Qubaisi house] was underway that they discovered it was an eleven-year-old boy.”250 Another spokesman for the US Army’s 1st Armored Division, Major Scott Slaten, expressed similar sentiments and defended the soldier. “…What is a 12-year-old boy doing on a rooftop with an AK-47? We’ve seen some cases where adults are using the child to carry their weapons. In the dark, when there is no electricity, a 12-year-old and a 20-year-old often look the same. We all hate that this has happened.”251 The immediate aftermath of the incident was chaos. There was uncertainty as to Muhammad’s medical condition. In an effort to save him, people began to plan a way for him to receive medical care. With US soldiers now aware they had shot a young boy, they assisted two neighbours in preparing Muhammad and his mother to travel to the hospital by car. While the local hospital was close by, it was on the other side of a US Coalition checkpoint, which would need to be traversed right as the 11:00pm curfew was approaching. The interpreter that was embedded with the 82nd Airborne soldiers said he would call the checkpoint to ensure they could 247 Staff Writer, ‘Iraqi child’s family, neighbors recall shooting,’ The Record, June 29, 2003, https://eu.recordnet.com/story/news/2003/06/29/iraqi-child-s-family-neighbors/50730968007/. 248 Ibid. 249 Human Rights Watch interview with Major Jenkinson, Baghdad, September 23, 2003. 250 Jim Krane, "American Soldier Shot at Baghdad Market," Associated Press, June 27, 2003. 251 Major Scott Slaten quoted in Staff Writer, ‘Iraqi child’s family, neighbors recall shooting,’ The Record, June 29, 2003, https://eu.recordnet.com/story/news/2003/06/29/iraqi-child-s-family-neighbors/50730968007/. 104 go through smoothly.252 However, either he was unable to call, or the message did not get through.253 Instead, according to the neighbours who drove the car, they were made to wait for fifteen minutes and the men were forced to exit the car and lay on the ground while they were searched.254 Wafa’, Muhammad’s mother, testified she was beaten by US forces at the checkpoint while trying to convince them to let them pass, leaving her with visible bruises.255 Muhammad died in the meantime, in the street, at the checkpoint, in his mother’s arms. He left behind his mother, father, two older brothers, and beloved twin, Mustafa. Figure 3.1 below shows a photo of Mustafa al Qubaisi holding a photo of Muhammad after his death. Figure 3.1: Photos of Mustafa al Qubaisi holding a photo of Muhammad al-Qubaisi and the bullet holes found in the al Qubaisi home256 The US Army’s 1st Armored Division spokesperson, Major Scott Slaten was vocal in the days after the incident. According to Iraqi news outlets, he noted publicly that the US military would be investigating the incident while also defending the soldier’s conduct. ‘It was dark and the soldier saw a silhouette on a rooftop. He had to make a decision and he engaged. It’s a tough call to make. I’m sure the soldier regrets it.’257 However, despite Major Slaten’s guarantees, in the aftermath of the event US forces did not investigate the incident.258 While the 82nd Airborne offered Muhammad’s family $500 USD to ‘cover the funeral expenses’, Muhammad’s father, 252 Human Rights Watch, Hearts and Minds: Post-war Civilian Deaths in Baghdad caused by US Forces, October 20, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian-casualties-baghdad-us-forces#_ftn105. 253 Ibid. 254 CENTCOM, Investigation file, CENTCOM 010540, 07-I192-T032-00013-2661, declassified files pertaining to the case of Muhammad al Qubaisi, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army26649_26685.pdf. 255 Ibid. 256 Human Rights Watch, Hearts and Minds: Post-war Civilian Deaths in Baghdad caused by US Forces, October 20, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian-casualties-baghdad-us-forces#_ftn105. 257 Major Scott Slaten quoted in Staff Writer, ‘Iraqi child’s family, neighbors recall shooting,’ The Record, June 29, 2003, https://eu.recordnet.com/story/news/2003/06/29/iraqi-child-s-family-neighbors/50730968007/. 258 Human Rights Watch, Hearts and Minds: Post-war Civilian Deaths in Baghdad caused by US Forces, October 20, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian-casualties-baghdad-us-forces#_ftn105. 105 Subhi Hassan al-Qubaisi, found a lawyer to represent his family in seeking acknowledgement of the incident and further compensation. The sections below consider the effectiveness of the response process undertaken from reporting through to consequence management, compensation, and amends stages. In particular, it explores the perceptions of the family and witnesses of the response process and how it influenced the ways in which they thought about coalition legitimacy in the aftermath. Reporting & Initial Assessment In this case, based on family and witness statements regarding the process, the reporting process was perceived to be partially effective. In the immediate aftermath of the event, the al-Qubaisi family’s screams could be heard throughout the neighbourhood, and friends, family members, and neighbours came running to their home.259 The activity also attracted the attention of the US soldiers who had shot Muhammad, who also arrived at the home moments after the incident, from the house which they had previously searched. With this in mind, the time between the incident occurring to it being reported to US forces was quite short and the incident was attended immediately. Internal reporting to higher headquarters did occur in the immediate aftermath of the incident, as well as to other units in the area to ensure the area could be secured appropriately. Public statements by Major Slaten and Gibson occurred in the days immediately after the incident, noting the 82nd Airborne’s perception of internal reports and the events. However, according to witnesses, no direct reporting mechanism was provided to them, and they expressed disappointment with the lack of transparency regarding the process, who they could contact, and how to pursue compensation.260 Multiple witnesses expressed that the lack of transparency led to considerable confusion and stress at a time of immense grief and anger.261As one witness noted, ‘We buried a child and we still didn’t know why. They just left us here with questions, pain, no answers. It may have been an accident, but I need to know. I do not sleep. We need justice, but we have no answers and the Americans have ignored us.’262 While a point of 259 Interview with neighbor, in Staff Writer, ‘Iraqi child’s family, neighbors recall shooting,’ The Record, June 29, 2003, https://eu.recordnet.com/story/news/2003/06/29/iraqi-child-s-family-neighbors/50730968007/. 260 Witness 4A (name withheld). Interview with author, 02/03/2022; Witness 4C (name withheld). Interview with author, 04/03/2022. 261 Witness 4A (name withheld). Interview with author, 02/03/2022; Witness 4B (name withheld). Interview with author, 03/03/2022; Witness 4C (name withheld). Interview with author, 04/03/2022. 262 Witness 4B (name withheld). Interview with author, 03/03/2022. 106 contact was established between the military forces and Muhammad’s father, this was not followed up by military forces to provide an opportunity to allow the family and witnesses to make a report or provide further evidence.263 Language barriers were also prevalent in this case, with the family only speaking Arabic, and interpreters scarcely available.264 At the time of the incident, no safeguarding support was provided, though the family noted they did not perceive this as a requirement. The initial assessment phase of this case occurred immediately after the incident at the scene. While the assessment was informal and undertaken by the 82nd Airborne unit involved in the incident, the occurrence of an incident of civilian harm seemed, to family and witnesses, to be taken seriously by those present, though there were still concerns expressed by the family regarding subsequent referrals for investigation.265 With this in mind, witnesses deemed this stage as partially effective. As there were many military and civilian witnesses and family members present when the incident occurred, this context left very little room for unfair processes or impartiality. While soldiers present were clear they believed the boy was holding a weapon, they were open in acknowledging that they held responsibility for the incident to the family and witnesses and there were no concerns from witnesses about the fairness or impartiality of the informal assessment of the scene that occurred during this stage.266 One witness recounted the emotional response of the military personnel on the scene, saying ‘Several of the soldiers that came into our home were very upset. They seemed shocked at Muhammad’s age. One of them started to cry. I do not think they knew they were shooting at a child.’267 Another noted that soldiers present attempted to provide medical aid to the child prior to the neighbours transporting his mother and him to the hospital.268 Overall, witnesses described an empathetic approach in the immediate aftermath with a focus on understanding what had 263 CENTCOM, Investigation file, CENTCOM 010540, 07-I192-T032-00013-2661, declassified files pertaining to the case of Muhammad al Qubaisi, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army26649_26685.pdf; Human Rights Watch, Hearts and Minds: Post-war Civilian Deaths in Baghdad caused by US Forces, October 20, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian-casualties-baghdad-us-forces#_ftn105. 264 CENTCOM, Investigation file, CENTCOM 010540, 07-I192-T032-00013-2661, declassified files pertaining to the case of Muhammad al Qubaisi, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army26649_26685.pdf; Witness 4C (name withheld). Interview with author, 04/03/2022. 265 Witness 4A (name withheld). Interview with author, 02/03/2022; Witness 4B (name withheld). Interview with author, 03/03/2022; Witness 4C (name withheld). Interview with author, 04/03/2022. 266 Witness 4B (name withheld). Interview with author, 03/03/2022; Witness 4C (name withheld). Interview with author, 04/03/2022. 267 Witness 4A (name withheld). Interview with author, 02/03/2022. 268 Witness 4A (name withheld). Interview with author, 02/03/2022; Witness 4B (name withheld). Interview with author, 03/03/2022; Witness 4C (name withheld). Interview with author, 04/03/2022; Witness D (name withheld). Interview with author, 05/03/2022. 107 happened and assisting the family.269 However, witnesses expressed discontent regarding the lack of clarity provided regarding next steps and whether the case was referred to a competent authority for further investigation. While Mohammad’s father was identified as an appropriate point of contact for US forces to reach out to, witnesses note that no timelines were given and they were not contacted after the incident.270 While publicly US Forces noted the incident would be investigated, according to the family, no military personnel collected statements from family or witnesses present or returned to the scene in the days or weeks after the incident.271 Further, there is no public evidence of a referral for an administrative 15-6 investigation or a criminal investigation into the incident nor was any referral for further investigation communicated to witnesses. Investigation, Consequence Management, Compensation and Amends In this case, there is no public evidence documenting an administrative 15-6 investigation or a criminal investigation taking place, and this is corroborated by testimony from civilian witnesses and US military personnel familiar with the incident. As one military interviewee familiar with the incident noted, In this case an investigation was not pursued because the unit and their higher headquarters had high confidence in the statements provided by soldiers who were at the scene. Each noted that due to the power outages, the high prevalence of weapons in the area, and the presence of a figure on the roof, the response was justified. Higher headquarters agreed that, while the incident was indeed tragic, that the soldier’s response fell within our rules of engagement at the time.272 This perspective was echoed publicly by Major Slaten, who noted ‘We all hate that this has happened. But we are not admitting guilt in any way, shape, or form. He had a weapon.’273 However, this meant that while US forces accepted, they had caused the incident, the determination regarding Rules of Engagement meant that the investigation process ceased with the initial assessment and that no responsibility for the harm caused to Muhammad would be 269 Ibid. 270 Ibid. 271 CENTCOM, Investigation file, CENTCOM 010540, 07-I192-T032-00013-2661, declassified files pertaining to the case of Muhammad al Qubaisi, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army26649_26685.pdf; Human Rights Watch, Hearts and Minds: Post-war Civilian Deaths in Baghdad caused by US Forces, October 20, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian-casualties-baghdad-us-forces#_ftn105. 272 Witness 4E (name withheld). Interview with author, 08/04/2022. 273 Public statement from Major Slaten quoted in Staff Writer, ‘Iraqi child’s family, neighbors recall shooting,’ The Record, June 29, 2003, https://eu.recordnet.com/story/news/2003/06/29/iraqi-child-s-family-neighbors/50730968007/. 108 taken. Thus, the circumstances of the incident were not investigated in depth, including whether Muhammad was carrying bedding or a weapon, or determining other circumstances and decision-making that may have contributed to the occurrence. The lack of formal internal investigation also meant that no further evidence was collected and there was no further engagement with family and witnesses to understand their perceptions and knowledge of the event. According to witnesses, no site visits were conducted at the al Qubaisi home after the initial assessment.274 Despite the decision not to investigate further, this was not communicated to the family directly. Several witnesses expressed this lack of communication as particularly disconcerting, as they were unclear on how to file a claim or who to speak to, as they were expecting further contact from the military.275 Some weeks after the incident, a US military lawyer contacted Muhammad’s father to offer him $500 USD to assist with funeral expenses.276 While al Qubaisi accepted this amount, witnesses at the time and during interviews for this study said that he thought it was ‘offensive’ and he engaged a lawyer to assist in a ‘full compensation’ claim.277 He told Human Rights Watch researchers at the time that he hoped the incident could be resolved ‘with some forgiveness and some compensation.’278 More than anything, al Qubaisi sought acknowledgement and an apology—some recognition that US forces understood what they had taken from their family.279 Between 2003 and 2007 multiple communications went back and forth between the al-Qubaisi family, their lawyer, and military forces, with the family requesting 28,000 Iraqi Dinar ($20,000 USD) in compensation.280 Ultimately, in 2007, despite over 30 pages of evidence and sworn statements being submitted to US forces, including a statement from Wafa’, Muhammad’s mother (Figure 3.2 below), to support the claim, the claim was denied on 7 March 2007.281 Neither compensation nor an apology ever came. 274 Witness 4A (name withheld). Interview with author, 02/03/2022; Witness 4B (name withheld). Interview with author, 03/03/2022; Witness 4C (name withheld). Interview with author, 04/03/2022; Witness D (name withheld). Interview with author, 05/03/2022. 275 Ibid. 276 CENTCOM, Investigation file, CENTCOM 010540, 07-I192-T032-00013-2661, declassified files pertaining to the case of Muhammad al Qubaisi, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army26649_26685.pdf; Human Rights Watch, Hearts and Minds: Post-war Civilian Deaths in Baghdad caused by US Forces, October 20, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian-casualties-baghdad-us-forces#_ftn105. 277 Human Rights Watch interview with Subhi Hassan al-Qubaisi, Baghdad, September 24, 2003. 278 Ibid. 279 Ibid. 280 CENTCOM, Investigation file, CENTCOM 010540, 07-I192-T032-00013-2661, declassified files pertaining to the case of Muhammad al Qubaisi, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army26649_26685.pdf. 281 Ibid. 109 Figure 3.2: Wafa’’s statement submitted to the [redacted] ‘Infantry bridge [brigade] combat team legal office The declassified Claims Checklist (Figure 3.3 below) associated with this case documents this decision, noting that ‘this claim has already been adjudicated. This claim cannot be adjudicated by this office, it has already been denied’ noting that US forces ‘already paid $500’ to the family.282 Figure 3.3: Claims Checklist regarding the case of Muhammad al Qubaisi283 282 Ibid. 283 Ibid. 110 Based on declassified documentation and interviews with the family, the consequence management, compensation, and amends phase was considered to be ineffective by the family and witnesses. In particular, witnesses point to acknowledgement and levels of compensation as key factors in their perception of ineffectiveness.284 According to witnesses, no formal acknowledgement of responsibility was ever provided. While the family continued to seek an apology and compensation into 2007, US forces neither publicly nor privately accepted responsibility for the harm caused and no apologies, expressions of regret, or contrition were provided to the family. As declassified documentation suggests, the process for seeking compensation was unclear and lacked formal processes. The majority of the documentation contains significant errors and was completed four years after the incident took place.285 As witnesses note, because of the lack of transparency regarding the process as well as the language barriers and lack of consistent access to the military forces responsible, they felt it would be impossible to navigate the compensation process without legal representation. However, even with legal representation, the declassified documentation shows that little was done by US forces to process the claim. Multiple documents show the al Qubaisi’s lawyer seeking responses and answers repeatedly, as well as providing sworn statements, and evidence of the incident, without response.286 Despite requesting response or alternative options for engagement, US forces involved in the compensation process did not provide any alternatives or further options to attempt to mitigate these barriers. In addition to these procedural considerations, the family expressed their upset in interviews for this study with the level of compensation originally provided. Although the family’s claim was denied under the US Foreign Claims Act due to the requirement to demonstrate that US Forces acted either negligently or wrongfully, this did not disqualify them from receiving a condolence or solatia payment at the discretion of a US forces commander in Iraq. It was this type of compensation Muhammad’s family had in mind when they accepted $500 USD ‘for funeral expenses’ in the immediate aftermath of the incident, with the understanding that further compensation could be provided.287 However, declassified documentation indicates that this 284 Witness 4B (name withheld). Interview with author, 03/03/2022; Witness 4C (name withheld). Interview with author, 04/03/2022. 285 CENTCOM, Investigation file, CENTCOM 010540, 07-I192-T032-00013-2661, declassified files pertaining to the case of Muhammad al Qubaisi, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army26649_26685.pdf. 286 Ibid. 287 Witness 4A (name withheld). Interview with author, 02/03/2022. 111 amount was considered by US forces to be the full amount of compensation eligible in this case as a condolence payment, and that additional compensation or appeal was not an option.288 According to the family and their lawyer, the conditions of this compensation were not communicated to them at the time this was provided and Muhammad’s family expressed they would have refused this amount had they known.289 They noted in particular that this level of payment was considered ‘offensive’ and increased the anger family members, their tribe, and witnesses from the neighbourhood felt over the incident.290 One witness interviewed noted that the amount provided ‘did not even cover funeral expenses.’291 Another witness noted many other expenses arose from the incident that the family needed to take on without support. Muhammad’s mother was injured from when she was beaten by US forces at the checkpoint and required medication.292 She also struggled with sleep in the months and years that followed as a result of ‘watching her child die in her arms’ and required long-term medication to manage chronic sleep and mental health issues that resulted from the incident.293 The same was true for Muhammad’s father and siblings, who were deeply distraught. His twin, Mustafa, asked to change his name to Muhammad after his twin’s death and struggled deeply with the psychological impact of ‘losing the other half of his soul.’294 Unfortunately, due to a shortage of funds, Mustafa, his father, and his older siblings were not able to access the psychological support they required and still struggle with symptoms of anxiety, depression, and post-traumatic stress disorder today. Further, as a result of the incident the family had to make repairs to their home due to the impact of bullets in several walls. These expenses were covered with the help of neighbours and extended family members. 288 CENTCOM, Investigation file, CENTCOM 010540, 07-I192-T032-00013-2661, declassified files pertaining to the case of Muhammad al Qubaisi, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army26649_26685.pdf. 289 Witness 4A (name withheld). Interview with author, 02/03/2022; Witness 4E (name withheld). Interview with author, 11/04/2022. 290 Ibid. 291 Witness 4A (name withheld). Interview with author, 02/03/2022. 292 Staff Writer, ‘Iraqi child’s family, neighbors recall shooting,’ The Record, June 29, 2003, https://eu.recordnet.com/story/news/2003/06/29/iraqi-child-s-family-neighbors/50730968007/; CENTCOM, Investigation file, CENTCOM 010540, 07-I192-T032-00013-2661, declassified files pertaining to the case of Muhammad al Qubaisi, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army26649_26685.pdf. 293 Ibid. 294 Ibid. 112 Assessment of Effectiveness This case offers a complex look into the effectiveness of post-harm response and compensation. Based on the perceptions of witnesses and military personnel familiar with this incident the response process in this case was ineffective and detrimental to the legitimacy of US forces. The diagram in Figure 3.4 below provides a visual mapping of the effectiveness of each stage of this case against the theory of effectiveness considered in this study. Figure 3.4: Visual Mapping of al Qubaisi Case to Theory of Effectiveness Of particular note in this case was the family’s prior support of US forces. Even in the immediate aftermath of the incident that killed their son, they held fast to their perception that what had occurred was likely to be an accident, maintaining their confidence in the legitimacy of US forces and their mission. However, multiple witnesses noted the response process was such that the family and witnesses’ mindsets shifted significantly as US forces did not engage with the family or witnesses. In the absence of a formal US internal investigation or a meaningful apology or compensation, Muhammad’s family and neighbours expressed increasingly anti-American views. While in the immediate aftermath of the incident, Muhammad’s father was hopeful that it could be resolved with some ‘forgiveness and compensation’ as time went on his perceptive 113 changed.295 Later on in the family’s pursuit of compensation, he noted his son ‘…was born under Bush’s war and he died under Bush’s war. Americans value their children. Please value ours. We will revenge. One child is equal to 10 American soldiers. No one came to apologize. They at least should come to say they are sorry.’296 Several other witnesses also spoke angrily about the incident, particularly the carelessness of the American soldiers involved. Several members of their tribe expressed a similar desire to take revenge. This anger reached a peak in 2007 when, after years of pursuing compensation, it was denied. In interviews conducted as part of this study, witnesses’ anger had dulled from an active desire for revenge, to a general anti-American sentiment over time.297 Today, while many witnesses still located in Iraq are grateful for the contemporary US-led operations against ISIS/L, several note ‘We cannot support them. We do not trust them. We know what they will do.’298 3.5 Waleed Khaled and Haider Kadhem, Hay al Adel, Baghdad, Iraq, August 28, 2005299 For the Reuters employees based at the newswire’s Baghdad bureau, the morning of August 28, 2005, began similar to others. With most staff tasked with covering ongoing stories related to the ongoing insurgency and the US Coalition’s efforts to combat its effects in the city and beyond, many already had assignments for the day, with those assignments being covered by Reuters television crews described by the Reuters Bureau Chief in Baghdad as ‘routine.’300 By 10:00am most staff had already headed out into the city and its surrounding suburbs to begin their coverage. Not unlike other news services operating in Baghdad at this time, the Reuters team was a mix of international reporters and Iraqis, a combination that ensured access to ongoing activities in difficult to access areas, local language capability, and cultural accuracy in reporting. At the time of the incident, the Reuters Producer in charge of all television operations in Iraq 295 Human Rights Watch, Hearts and Minds: Post-war Civilian Deaths in Baghdad caused by US Forces, October 20, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian-casualties-baghdad-us-forces#_ftn105. 296 Staff Writer, ‘Iraqi child’s family, neighbors recall shooting,’ The Record, June 29, 2003, https://eu.recordnet.com/story/news/2003/06/29/iraqi-child-s-family-neighbors/50730968007/; CENTCOM, Investigation file, CENTCOM 010540, 07-I192-T032-00013-2661, declassified files pertaining to the case of Muhammad al Qubaisi, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army26649_26685.pdf. 297 Witness 4A (name withheld). Interview with author, 02/03/2022; Witness 4E (name withheld). Interview with author, 11/04/2022. 298 Ibid. 299 This case study would not have been possible without the assistance of Reuters journalists and staff. I am grateful for their insights. 300 Department of the Army, FOIA 17126-17147,_https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17126_17147.pdf. 114 noted that the television team itself employed nearly 40 full time staff, all of whom were Iraqi except the producer, who was a Jordanian citizen.301 In a sworn affidavit submitted to the US military in Iraq, the producer notes that on Sunday, August 28, 2005, around 11:00am, they ‘received a telephone call from a reliable source whom I know well, an officer at Baghdad police headquarters, who told me that a police patrol had been attacked near the [redacted] mosque in the [redacted]302 district.303 According to the Bureau Chief, this was a regular occurrence, ‘We are called by the Iraqi police in Baghdad many times a day informing us of incidents. We routinely send cameramen to investigate them further and to capture photographic stills and television footage if appropriate.’304 This was the case on August 28, 2005. In response to the telephone call, they received from Baghdad police headquarters regarding the ongoing incident, the producer notes that initially, they telephoned a Reuters cameraman who had worked in the area for several years to go to the area and capture television footage of the event. However, the cameraman was too far away, covering another event in the east of Baghdad at the time. Following this call, the producer asked another member of staff to assist. 24-year-old Haider Kadhem was new to the Reuters Baghdad bureau, having only started working for the Baghdad office two days prior. He was on a short-term assignment in Baghdad, having been posted there temporarily from another Reuters office in Iraq, where he usually covered, ‘among other things, the Japanese troop contingent’ in the area.305 The producer asked Kadhem if he could travel down to the area in question to capture television footage of the incident. He agreed. The producer also asked 35-year-old Waleed Khaled to be the soundman and driver, accompanying Kadhem to the scene. He agreed as well. Within one hour of this conversation, the soundman, Waleed Khaled, would die after being ‘struck by a bullet to the face and at least four to the chest.’306 The cameraman, Haider Kadhem, was also seriously injured in 301 Reuters, ‘US Studies Report its Soldiers Killed Journalist, August 29, 2005, https://www.nytimes.com/2005/08/29/world/middleeast/us-studies-report-its-soldiers-killed-journalist.html. 302 Suspected to be ‘Hay al Adel based on corroborating information regarding the incident. 303 Department of the Army, FOIA 17126-17147, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17126_17147.pdf 304 Affadavit of [redacted] (Reuters Bureau Chief in Baghdad), Department of the Army, FOIA 17126-17147, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17126_17147.pdf. 305 Affadavit of [redacted] (Reuters Producer in Charge of all television operations in Iraq), Department of the Army, FOIA 17126-17147, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17126_17147.pdf. 306 Ibid. 115 the incident, suffering two bullet wounds to his abdomen, and was detained by American forces for interrogation in the immediate aftermath of the incident. The events that transpired between Kadhem and Khalid leaving the Reuters Baghdad bureau and the incident that resulted are well documented, and are reported consistently by Kadhem, US forces, Iraqi eyewitnesses, and other Reuters journalists that arrived on the scene shortly after the men were shot. Based on survivor and eyewitness testimony, the declassified US military investigation into the incident, an independent investigation commissioned by Reuters and undertaken by the Risk Advisory Group, and a subsequent 82-page investigation into the incident conducted by the US government’s Special Investigator General for Iraq Reconstruction (SIGIR) the following sections provide an overview of the incident, as well as the reporting, initial assessment, investigation, and consequence management, compensation and amends processes which ensued in the aftermath. Following the tasking from the Reuters’ Baghdad television producer, Kadhem and Khaled immediately departed the bureau to travel to the scene of the insurgent ambush on the Iraqi police. Not wanting to miss the ongoing event, Khalid drove quickly towards the Hay al Adel district, a journey that took them approximately an hour to complete due to the route and traffic within the city. Shortly before they arrived at the scene, sworn statements submitted by American forces present in the area documented the events. One notes that the 256 BCT ‘received a call saying an ambush on an Iraqi Police convoy had taken place on FTE [redacted], just north of [redacted.] My dismounted squad loaded up in 3rd PLT Bravo section’s BFVs [Bradley Fighting Vehicles] and moved toward the scene.307 Once we arrived the BFVs pursued two vehicles seen fleeing the scene. The BFVs stopped the vehicles and I searched them with the dismounts. The search turned up nothing. We then moved to [redacted] where a White Daewoo Prince had been engaged during the IP ambush by the dismounted [redacted] (from my platoon) on top of the [redacted] 308 NE [North East] of the [redacted].309 One of the dismounted soldiers involved in the incident recounts the following events At approximately 1st PLT [Platoon] C Co [C Company] TF [Task Force] 1-156 had a dis[s]mounted OP [observation post] set on the [redacted] at [redacted] overwatching 307 Department of the Army, FOIA 17098-17102, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17098_17102.pdf. ‘Dismounted’ is a common military term to refer to military personnel who are on foot rather than ‘mounted’ on a military vehicle. 308 Based on the testimony of other Reuter’s journalists who arrived on the scene and spoke to Mr. Kadhem prior to his detainment, this is suspected to say ‘on top of the shopping centre.’ 309 Based on aerial maps of the area, this redaction is likely to refer to the mosque in the immediate area as a geographical reference point. 116 [redacted] at RTE [redacted. While we were on the roof a convoy started getting ambushed about 600 m[etres] of our position. They convoy being IPs [Iraqi Police] started receiving small arms [fire] but we couldn’t tell where they were coming from. After many shots were fired my team leader Sgt [Sergeant] [redacted] pointed out that the shots were coming from the median with the trees. So, we started laying down some suppressive fire into the trees. After the firing seized [ceased] we noted three guys coming from around ambush. They were getting pulled by horse so we got our tank section to stop them. After being stopped some IPs came and assisted in searching them, while searching them a secondary ambush started and mortar rounds started coming in around the IPs and our tank section. About 5-10 min[utes] after the second ambush started myself and Cpl [Corporal] [redacted] noticed a guy in white car holding what appeared to be an RPG out of the window. So, I notified Sgt. [redacted] of this after seeing this. He told Sgt. [redacted] to get the bino[cular]s so that we could see better. Before Sgt. [redacted] could return the guy quicky got back in seat. Also, I would like to add that the guy was pointing the RPG towards our tank section and IP vehicles before noticing something. After getting back in the vehicle it started rolling backwards so then Sgt. [redacted] gave the order to sho[o]t warning shots so that we could stop the vehicle. Even though we fired warning shots the vehicle began to pick up pace in reverse. So then Sgt [redacted] gave the order to disable the vehicle, as we started shooting, one of us blew out the passenger back tire. Once the tire was blown the car picked up even more speed backwards, we finally were able to disable the vehicle about 250-300 m[etres] south of our position. When vehicle came to stop Sgt [redacted] gave command to cease fire so we did. After this we got guidance to keep all vehicles and personal [personnel] away from the vehicle. About 30 min[utes] later our Bradley [Fighting Vehicles] and tanks got ther[e] to cordon the area.310 Following this, as another member of the1st PLT [Platoon] C Co[mpany] T[ask] F[orce] 1-156 account states, Upon arriving, the BFVs cordoned off the overpass with the assistance of the 2nd PLT Bravo Section (Tank) and a Warlord element (108th M[ilitary P[olice]). My squad and I approached and searched the vehicle. We found one LN [Local National] KIA [Killed in Action] (the driver) and one unharmed LN (the passenger). Inside the vehicle we found their identification cards from the Reuters press agency, 2 cell phones, a DV camera, tripod, microphone, DV cassette tapes, and the vehicle owner’s manual.311 Shortly thereafter, as one member of the US army at the scene noted, ‘the incident was reported up to 1st Battalion at this time.’312 Not long afterwards the 256th BCT Investigation team arrived on the scene led by a US Army Major beginning the incident response process began.313 While 310 Department of the Army, FOIA 17080-17083, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17080_17083.pdf and Department of the Army, FOIA 17089-17092, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17089_17092.pdf. 311 Department of the Army, FOIA 17098-17102, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17098_17102.pdf. 312 Ibid. 313 Ibid. 117 most of these accounts are corroborated by the survivor, Kadhem, Iraqi eyewitnesses, military forces involved, and Reuters journalists that arrived on the scene, a few important points differ. First, in the immediate aftermath of the event, upon inspection of the vehicle, it was found that the ‘RPG’ American forces saw the passenger holding out of the window was, in fact, a video camera, used by Kadhem for capturing television footage. No evidence of any weapons was found in the car or on their persons. This is confirmed by investigators on the scene, as well as by declassified photos included in the investigation file.314 Additionally, two Reuters journalists who were colleagues of Khalid and Kadhem arrived on the scene shortly after the incident, while military personnel were questioning Kadhem noted him saying "I heard shooting, looked up and saw an American sniper on the roof of the shopping center."315 This corroborates the reversing pattern of the car identified in the sworn statements, regarding the RPG/camera being brought back into the car after the passenger ‘noticed something’ before ‘start[ing] to roll backwards.’316 However US forces deny this, as well as personnel being on the roof of the mall. Lastly, while military personnel involved in the incident note that the driver of the car was killed, they state in their sworn statements that passenger in the car was uninjured.317 This was determined to be inaccurate after the fact, with Kadhem suffering wounds to his back and torso as a result of the incident. In the aftermath of the incident, Kadhem was detained by 256th BCT C Company of TF-1-156 and the 108th Military Police.318 Before and during his detention, Reuters’ staff advocated for his release in order to access medical care for these wounds, as they say were not addressed at the scene or during his detention.319 He was detained for over three days despite requests from Reuters he be freed. The two Iraqi colleagues who had arrived on the scene minutes after the shooting were also detained but released shortly afterwards. Waleed Khaled had worked for 314 See Department of the Army, FOIA 17063-17065, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17063_17065.pdf, Department of the Army, FOIA 17069-17071, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17069_17071.pdf, Department of the Army, FOIA 17072-17073, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17072_17073.pdf, Department of the Army, FOIA 17074-17075, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17074_17075.pdf, Department of the Army, FOIA 17076-17077, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17076_17077.pdf, Department of the Army, FOIA 17078-17079, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17078_17079.pdf. 315 Reuters, ‘US Studies Report its Soldiers Killed Journalist, August 29, 2005, https://www.nytimes.com/2005/08/29/world/middleeast/us-studies-report-its-soldiers-killed-journalist.html. 316 Department of the Army, FOIA 17089-17092, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17089_17092.pdf. 317 Department of the Army, FOIA 17053-17062, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17053_17062.pdf. 318 Department of the Army, FOIA 17103-17115, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17103_17115.pdf. 319 Ibid. 118 Reuters in Iraq for two years. He left behind a wife, Randa, and a four-year-old daughter, Heba.320 Nine weeks after his death, Randa gave birth to a son, who was named Khaled Waleed in honour of his father.321 Haider Kadhem recovered from his injuries and continues to work as a reporter for Reuters in Iraq. Images of both Khaled and Kadhem can be found in Figure 3.5 below. Figure 3.5: Images of Waleed Khaled and Haider Kadhem322 Waleed Khaled, 35 years old Haider Kadhem, 24 years old Khaled’s body and the car he and Kadhem were travelling in were released after the incident to Reuters staff. David Schlesinger, the Reuters global managing editor at the time of the incident was clear in his expectations for US forces in the aftermath, noting “This tragic incident must immediately be investigated thoroughly and impartially.”323 This statement echoed the sentiments felt by the Iraqi public, particularly those who supported US forces in Iraq at this time. The following sections explore the reporting, initial assessment, investigation, and consequence management, compensation, and amends processes that were undertaken in the aftermath of this incident. Reporting & Initial Assessment As noted previously, shortly after the incident occurred, it was reported by the units involved up to the US Army’s 1st Battalion’s headquarters. After the report was made, the 256th BCT Investigation team ‘headed by MAJ[OR] [redacted] was on scene questioning the dismount[ed] 320 The Baron, “People: Waleed Khaled,” https://www.thebaron.info/people/memorial-book/waleed-khaled. 321 Ibid. 322 Images courtesy of Reuters. 323 Reuters, ‘US Studies Report its Soldiers Killed Journalist, August 29, 2005, https://www.nytimes.com/2005/08/29/world/middleeast/us-studies-report-its-soldiers-killed-journalist.html; Barry Moody (Reuters), “Reuters says US Troops Obstruct Reporting of Iraq”, Global Policy Forum, September 28, 2005, https://archive.globalpolicy.org/security/issues/iraq/media/2005/0928reportingofiraq.htm. 119 [soldiers] that occupied the [redacted], the passenger of the Daewoo, and myself.’324 This process initiated both the reporting and initial assessment process. With the civilians harmed in the incident still present at the scene, the credibility of statements provided, and versions of the incident were assessed at the location of the incident, as well as during Kadhem’s detention. The assessment process that proceeded at the scene included evidence collection, including the collection of photographs of the scene, depicting the location of the incident, as well as the equipment found in the car, Kadhem with his press identification, and the bullet holes left in the car windshield and front hood. A selection of these photos, declassified as part of the American Civil Liberties Union (ACLU)’s FOIA request, are contained in Figure 3.6 below. Figure 3.6: Photographs of the incident scene, August 28, 2005325 As evidence collection was concluding on the scene, one of the Unit leaders spoke with a Senior Correspondent at Reuters, Michael Georgy. Georgy was the supervisor of both Khaled and Kadhem at the Baghdad bureau. He was on his way to the scene ‘to find out what happened’ after hearing reports of the incident from relatives of Kadhem who had arrived on the scene.326 324 Department of the Army, FOIA 17098-17102, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17098_17102.pdf. 325 See Department of the Army, FOIA 17063-17065, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17063_17065.pdf, Department of the Army, FOIA 17069-17071, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17069_17071.pdf, Department of the Army, FOIA 17072-17073, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17072_17073.pdf, Department of the Army, FOIA 17074-17075, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17074_17075.pdf, Department of the Army, FOIA 17076-17077, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17076_17077.pdf, Department of the Army, FOIA 17078-17079, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17078_17079.pdf. 326 Department of the Army, FOIA 17098-17102, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17098_17102.pdf. 120 Upon Georgy’s arrival to the scene, one of the Unit leaders notes that ‘I made contact with him. I wrote down his contact information…and released the vehicle and dead LN’s body to Mr. Georgy.’327 Following this, the Army units involved departed the scene with Kadhem. Having contacted survivors and witnesses with first-hand knowledge of the incident, the following analysis of the reporting and initial assessment phase finds that these processes were perceived as partially effective. Rather than needing to receive reports of the civilian harm incident externally, this incident was promptly reported through internal channels by the platoon leaders of 256 BCT involved within 15 to 20 minutes.328 The short delay to reporting was caused by the presence of an IED threat in the immediate area, which was investigated and neutralized shortly thereafter. Upon reporting the incident via radio communication to the 1st Battalion headquarters, Investigation teams were on the scene within approximately thirty minutes and began collecting witness statements from locals, the US Army personnel involved or that witnessed the incident, as well as Kadhem and his colleagues who arrived on the scene shortly afterwards.329 The reporting process was seen to be predominantly fair and transparent by Iraqi witnesses, particularly as they witnessed both the initial call to the 1st Battalion headquarters and the arrival of the investigation team shortly after. However, considerable concerns in this process were expressed by witnesses and survivors regarding the questioning and detainment of Kadhem and two of his colleagues. While the US Army personnel that decided to detain Kadhem noted that their decision to do so was based on ‘inconsistencies with his story regarding when he was sent to the scene.’330 Allegedly, Kadhem told them that ‘his dispatcher had sent him at 9:30am to this scene which means he would have found out about the attack before it happened.’331 However, this was not communicated clearly to witnesses or Reuters leadership, nor were they given access to Kadhem during his detainment. Thus, significant safeguarding concerns were expressed as part of the reporting process, with all 327 Ibid. 328 Ibid. 329 Ibid. 330 Department of the Army, FOIA 17103-17115, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17103_17115.pdf. 331 Ibid. 121 witnesses interviewed expressing that they did not feel Kadhem, as a victim of the incident, was being safeguarded appropriately from potential punishment in US custody.332 Witness accounts of the assessment and evidence collection phase that was undertaken on the scene were mixed. As one witness noted, ‘We arrived on the scene minutes after the car was shot at. The unit involved seemed to be taking what had happened very seriously, particularly once they realized that the men were journalists and saw their press credentials and video equipment.’333 However, witnesses and survivors were unclear what the assessment process and evidence collection would entail, and this was not communicated openly. As one witness noted, ‘American investigators arrived very quickly and were speaking to us and to the Americans that had shot the car. They asked us many questions but when we asked what would happen with this information next, they did not tell us.’334 Kadhem was questioned at this time as well, though there are conflicting reports from local witnesses and military witnesses as to whether Kadhem was provided shelter, water, or medical care for his wounds during this time.335 Further, there is considerable disagreement amongst witnesses as to the length of time Kadhem’s colleagues were detained, with military witnesses noting ‘they were never detained and were free to walk away at any time’ whereas Iraqi witnesses to the incident note that they were ‘surrounded by Americans and questioned for a long time’ while at the scene.336 Following this initial assessment, Kadhem was transported to a detention facility in Baghdad for further questioning. No information regarding his detention or timelines for release were provided to his family, eyewitnesses, colleagues, or employer.337 Thus, the considerable lack of transparency regarding Kadhem’s detention, and subsequent investigatory procedures were perceived to be ineffective by witnesses to this incident. Due to the severity of the incident, and particularly the death and injury of two journalists, the case was forwarded for further investigation rapidly for further investigation. An investigating officer from 256 BCT was 332 Witness 5A (name withheld). Interview with author, 15/08/2021. 333 Witness 5B (name withheld). Interview with author, 23/11/2021. 334 Witness 5C (name withheld). Interview with author, 17/09/2021. 335 Witness 5B (name withheld). Interview with author, 23/11/2021; Witness 5C (name withheld). Interview with author, 17/09/2021. 336 Witness 5A (name withheld). Interview with author, 15/08/2021. 337 Ibid. 122 appointed on 31 August 2005 by Brigadier General John Basilica of the US Army, the same day as Kadhem was released from custody.338 Investigation Following the incident, Reuters leadership began advocating for Kadhem’s release from custody and calling for an investigation into the incident. In a public statement, David Schlesinger, Reuters’ global managing editor, said, ‘This tragic incident must immediately be investigated thoroughly and impartially.’339 Shortly thereafter, a US military spokesman, Lieutenant Colonel Steven A. Boylan, told the global press that the incident was being investigated.340 This is corroborated by declassified documentation pertaining to the incident, which recounts the appointment of the investigating officer.341 In the 31 August 2005 appointment memo, General Basilica indicated that the investigation of the incident must be completed rapidly, with findings and recommendations required to be submitted to the headquarters within 72 hours.342 The instructions indicated that the findings should include a comprehensive and chronological description of events as well as your understanding of why the incident occurred. Recommendations should include but not be limited to corrective actions designed to prevent future occurrences of the same or similar incidents. In the event your recommendations include disciplinary action, do not recommend specific levels of disposition or punishments.343 However, based on the records declassified pertaining to this case, it seems that investigation was completed within hours of it being assigned to the Investigating Officer, with the Investigating Officer noting that they began collecting and hearing evidence on this case at 1500 on 31 August and completed their findings and recommendations at 2000 on the same date.344 The Investigating Officer’s submissions provided a chronological overview of the incident and finds that the US forces involved in the incident ‘have utilized proportional force only after ROE had been met’ and recommended that ‘the command take no action against the US soldiers that engaged the white Daewoo Prince.’345 338 Department of the Army, FOIA 17053-17062, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17053_17062.pdf. 339 Reuters, ‘US Studies Report its Soldiers Killed Journalist, August 29, 2005, https://www.nytimes.com/2005/08/29/world/middleeast/us-studies-report-its-soldiers-killed-journalist.html; 340 Ibid. 341 Department of the Army, FOIA 17053-17062, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17053_17062.pdf. 342 Ibid. 343 Ibid. 344 Ibid. 345 Ibid. 123 It also sought to clarify several points released publicly by news media outlets in the aftermath of the incident. Notably, the investigating officer finds that ‘the two [Reuters] colleagues who first arrived on the scene after the engagement were never detained, just not allowed near the disabled vehicle and body.’346 Further, the report notes that military witnesses to the incident have recounted that Kadhem was not wounded, was checked thoroughly by a medic, treated for superficial abrasions at the scene, and provided shelter and cold water in the back of a Bradley Fighting Vehicle ‘because there was no shade.’347 However, in recognition of the suffering caused by the incident, the Investigating Officer recommended ‘that the command pay a condolence payment to the family of the killed Reuters reported’ and ‘that the command pay a condolence payment to the Reuters reporter who was detained.’348 Based on available documentation, apart from Kadhem, only US Army witnesses were interviewed or asked to submit sworn statements as part of the investigation. Kadhem was interviewed during his detention, the contents of which are contained within the sworn statements of his interrogators.349 However, the contents of these statements contradict previous statements Kadhem made to his colleagues on the scene and subsequent statements he has made to independent investigators. Survivors and witnesses to the incident have thus evaluated the official investigation based on their perceptions of the effectiveness of the process undertaken by the US military. In doing so, they have found that the investigation process generated mixed perceptions, with some good practice demonstrated. However, they have noted that the less effective aspects of the investigation process have overshadowed good practice due to a lack of engagement with external eyewitnesses throughout the investigation, and a perceived lack of impartiality within the US military’s investigation as a result of relying solely on internal accounts of the incident. Thus, based on interviewees perceptions of the investigation the US military investigation undertaken in this case was perceived by interviewees to be ineffective and detrimental to their perceptions of US coalition legitimacy. With regards to the specific determinants of effectiveness evaluated, interviewees noted they were initially ‘pleased and impressed’ by the 346 Ibid. 347 Ibid. 348 Ibid. 349 Department of the Army, FOIA 17103-17115, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17103_17115.pdf. 124 US Army’s commitment to investigating the incident.350 Several interviewees noted they considered the speed with which investigators arrived on the scene to be ‘favourable’ and that it demonstrated ‘genuine concern’ as to what had occurred.351 Given the circumstances of the incident, it was not questioned that the US Army had killed a civilian journalist. With this in mind, they noted that they were ‘not surprised’ that an investigation was opened quickly.352 In particular several interviewees noted that their lack of surprise in this regard was due to the American military’s concern at this time concerning their ‘reputation’ and ‘public image’ as incidents of civilian harm were quite high at this time, and there had been several recent cases of journalists being killed by US military personnel in similar circumstances.353 However, they noted that they considered some of the evidence collection and investigative review practices to be biased. Several interviewees who were present at the scene noted that witness statements were only collected from American soldiers present at the scene, whereas Iraqis at the scene, including Kadhem and his Reuters colleagues, felt they were being ‘interrogated as suspects’ who may have been involved in the attack on the Iraqi Police, or had prior knowledge of the attack that they did not share with Coalition Forces.354 As far as can be discerned from declassified investigative materials made public by the ACLU, no Iraqi statements were gathered nor included for consideration in the AR 15-6 investigative report. Further, based on the available documentation, no additional site visits or witness interviews were conducted as part of the investigation, and no reason was provided as to why this or alternative options were not pursued. Throughout the investigation process, no contact was maintained with Reuter’s management or directly with Khaled or Kadhem’s families or representatives.355 It was not until the investigation was completed that its results were relayed to Reuters management in Iraq. The families and Reuters’ management saw significant flaws with the report, and communicated that they did not feel the investigation had been thorough or impartial, given the short timelines, lack of evidence from non-military personnel, a crucial piece of evidence lost during the process, and the appointment of an investigating officer from the unit 350 Witness 5D (name withheld). Interview with author, 03/07/2021. 351 Witness 5B (name withheld). Interview with author, 23/11/2021. 352 Ibid. 353 Witness 5D (name withheld). Interview with author, 03/07/2021. 354 Witness 5A (name withheld). Interview with author, 15/08/2021; Witness 5B (name withheld). Interview with author, 23/11/2021. 355 Witness 5D (name withheld). Interview with author, 03/07/2021. 125 involved in the incident.356 To this end, they sought an independent review of the incident and the investigation process undertaken by the US military. Two additional investigations were undertaken by independent organizations. The first, commissioned by Reuters and undertaken by the Risk Advisory Group, drew conclusions substantially different than those of the Investigating Officer. The Risk Advisory Group investigation was led by a former special investigator in the UK’s Royal Military Police and the findings were reviewed by Risk Advisory Group’s Chief Executive, a barrister and former prosecutor for the UK’s Serious Fraud Office.357 Notably, the Risk Advisory Group report found that ‘US soldiers breached their rules of engagement when they shot dead an Iraqi working for Reuters…and the shooting was “prima facie unlawful.’358 They note further, that the ‘use of force was neither proportionate nor justified.’ They conclude, ‘based on the independent evidence and the evidence of Haider Kadhem, that no hostile act took place and no act could have been legitimately mistaken as indicating hostile intent,’ therefore ‘the engagement was…in breach of US Rules of Engagement.’359 They further noted key concerns regarding evidence collection and the chain of custody. Referring to video footage recorded by Kadhem in the immediate lead up to the incident, when holding the video camera outside the car window, ‘the video footage filmed by Kadhem immediately before and during the shooting, was seized by the US military after the incident. The military showed the footage to several Reuters staff but then said it had been separated from the case file and subsequently lost.’360 These concerns became the subject of further investigation by the US Special Inspector General for Iraq Reconstruction, tasked with providing governmental oversight on the US’ ongoing whole-of-government activities in Iraq. In an 82-page report released in June 2008, the Inspector General criticised the Army investigator for losing the video evidence and admonished the lack of several logical investigation actions, including interviewing non-military witnesses to the event.361 They note that the Army investigator’s actions rightfully led Reuters to believe the 356 Witness 5A (name withheld). Interview with author, 15/08/2021; Witness 5B (name withheld). Interview with author, 23/11/2021. 357 Thomson Reuters, ‘Independent reporting finds US shooting of Reuters soundman in Iraq unlawful,’ April 10, 2006, https://ir.thomsonreuters.com/node/14316/pdf. 358 Ibid. 359 Ibid. 360 Ibid. 361 Special Inspector General for Iraq Reconstruction, Evaluation of the Army Investigations into the Death and Injury of Reuters News Service Employees by U.S. Forces on August 28, 2005, DoD 2007C003, June 13, 2007. 126 investigation was not thorough or independent, though they ultimately supported the investigating officer’s conclusions that the escalation of force that resulted in the shooting was lawful. Reuters noted it disagreed with the Inspector General’s ‘findings but welcomed its recommendation that the US military work with news organizations on safety procedures to avoid similar incidents.’362 With these independent investigations in mind, witnesses and survivors of the incident noted that they perceive the initial US investigation to be irretrievably flawed in this case. Consequence Management, Compensation and Amends Despite the considerable concerns identified by the Risk Advisory Group and SIGIR investigations into the incident, the initial US Army investigation did provide recommendations for condolence payments to be provided to Kadhem and the Khaled family. A subsequent approval memo attached to the investigation report documented General Basilica’s recommendation of ‘expedited condolence payments to the family of the deceased and the detained reporter.’363 While public documentation does not provide any further information regarding whether or when these payments were disbursed, interviews with witnesses confirm payments were provided to the family at a level above the standard amount of $2,500 used in Iraq at the time. Based on the interviews undertaken, witnesses note that their perception of the consequence management, compensation, and amends process, when isolated from other stages in this case, was largely effective. In interviews with witnesses, several people noted that the process for compensation and amends was relatively time sensitive. Due to the recommendation of expedited amends in the hours immediately following Kadhem’s release from detention, witnesses note that members of the US Army met with them in the days afterwards. As one witness recounted We were of course very angry when they arrived. It was only shortly after [the incident] and we were grieving. However, they spent a lot of time with us and apologized for what they did. They explained [from their perspective] what had happened. We cannot forgive this, but it seemed they were sorry.364 362 Thomson Reuters, ‘Independent reporting finds US shooting of Reuters soundman in Iraq unlawful,’ April 10, 2006, https://ir.thomsonreuters.com/node/14316/pdf. 363 Department of the Army, FOIA 17053-17062, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army17053_17062.pdf. 364 Witness E (name withheld). Interview with author, 02/11/2021. 127 Other witnesses noted that the approach to discussing condolence payments was relatively sensitive. The US Army had become conscious by this time of locals’ perception of these funds as ‘blood money’ and that often the level of payments offered were considered offensive in Iraq. One retired military witness with knowledge of this event noted that ‘condolence payments in this case were approached as a conversation with the families. We certainly did have numbers in mind based on our existing guidance at the time, but we prioritized listening to the families.’365 However, the same individual noted that this level of sensitivity was not the norm at this time. ‘This case was very important to get right because it involved journalists and an international newswire. Everyone was very conscious what this meant reputationally on the ground and internationally because the media was watching very closely.’366 Based on these factors, it seems this case followed reasonably good practice for consequence management, compensation, and amends. Witnesses were clear that the US Army acknowledged their responsibility for the incident immediately. However, they expressed frustration that they determined their actions to be legal.367 Beyond this, witnesses noted that the compensation process seemed fair and was timely, occurring just days after the incident.368 However, they noted it lacked transparency as there was limited information provided to them in the days in between the incident itself and the condolence payments process beginning.369 One witness noted that the perceived effectiveness of the compensation process was considerably overshadowed by Kadhem’s detainment after the incident, as this was seen as wholly unnecessary. However, other witnesses noted that the process helped to ease the anger and stress. Thus, the view of loss taken in this case was considered to be relatively comprehensive, accounting for Kadhem’s injuries as well as the psychological impact of the event and his detainment. Additionally, witnesses reported that there were fewer barriers involved in the compensation process than during the investigation period. As military forces came directly to the families, access barriers were limited, and some family members spoke English or were able to otherwise communicate with US officials.370 Interpreters 365 Witness F (name withheld). Interview with author, 11/14/2021. 366 Ibid. 367 Witness 5A (name withheld). Interview with author, 15/08/2021; Witness 5B (name withheld). Interview with author, 23/11/2021. 368 Ibid. 369 Ibid. 370 Ibid. 128 were also made available during this engagement and based on witness testimony, it appears policies, processes and procedures were adapted to engage directly with the survivors and family members.371 To this end, while witnesses continue to express dissatisfaction and negative perceptions regarding other stages of the response process, they express neutral or positive perceptions of the consequence management, compensation, and amends stage. Assessment of Effectiveness Based on the perceptions of witnesses’ testimonies, the response process in this case is considered to be partially effective. The diagram in Figure 3.7 below provides a visual mapping of this case to the theory of effectiveness. Figure 3.7: Visual Mapping of Khaled and Kadhem case to Theory of Effectiveness While the reporting and initial assessment phases were reasonably effective, allegations of US soldiers acting unprofessionally on the scene alongside Kadhem’s detainment were prevalent concerns during these phases. However, the investigation phase was, according to witnesses, a particular issue of contention. The assignment of an investigating officer from within the unit 371 Ibid. 129 involved in the incident, the short time frame the investigation took, and the limited engagement with external eyewitnesses, including Iraqi civilians on the scene, were serious issues for witnesses. Interviewees ultimately agreed with the SIGIR’s finding that the investigative process was neither fair nor impartial and, similar to the findings from the Risk Advisory Group’s investigation, believe that the harm that was caused to Khaled and Kadhem was illegal. Finally, despite the considerable animosity expressed regarding the investigation process, the US Army’s swift approval of compensation and engagement in a consequence management and amends process with the survivor and families was welcome. Witnesses expressed positive perceptions regarding the timeliness and view of loss taken within the process, as well as the US Army’s expression of regret provided within these conversations. The level of payment is currently unknown in both the Khaled family and Kadhem’s cases, however several interviewees expressed positive perceptions of the approach the US Army took to discussing level of payment, in particular that these conversations considered the needs of the family. Thus, while the response process was partially effective, this case does demonstrate a useful role for civilian harm compensation from a strategic perspective when it is conducted in a sensitive and considerate way and prioritizes the needs of survivors and their families throughout. 3.6 Abdullah Abadi, December 31, 2006, North East Ramadi, Tikrit, Iraq372 New Year’s Eve 2006 dawned a cold morning on the outskirts of Tikrit, Iraq. The area surrounding Tikrit was world famous—just over three years earlier, Saddam Hussein had been found hiding in a one-man hole just miles away, down the street from his childhood home. Ever since it had remained a hotbed of militant activity, particularly for Shiite rebel groups who still harboured loyalty to the former Ba’athist regime. The widespread militant activity is what brought US forces to the area that morning. 36 hours earlier, Coalition forces had kicked off OPERATION CHOCTAW—a multi-day operation with the objective of establishing Coalition control over key areas of the Tikrit area surrounding US Forward Operating Base Spiecher.373 By the time they reached an area overlooking a small village, US forces were exhausted. The operation’s command elements established a tactical headquarters in an abandoned house, with 372 Due to lack of public records utilizing the given names of those involved in this incident, all names utilized in this case are pseudonyms given by the author to protect individuals’ anonymity. 373 Department of the Army, FOIA 23877-23896, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23877_23896.pdf. 130 other units occupying other similar buildings next door.374 Re-establishing their duty and rest cycles, some elements of the teams were ordered to take the opportunity to sleep, while others were tasked with protection and surveillance duties given their proximity to several villages. Given the lull in fighting before the forces would pursue the next objective of the operation, some units taking part in the operation used this time to begin to prepare for the upcoming fight. This was the thought process of Captain Nicholson, the Fire Support Officer in charge of an 81mm mortar team taking part in the operation.375 An indirect fire weapons system, mortars are composed of both an explosive and propulsive mechanisms, fired out of a ground-mounted ‘tube’ that pierces the propulsion elements to instigate flight.376 These weapons are fired from a considerable distance, often several hundred metres and up to 5 kilometres.377 Thus, they are often fired without visual sight of a target, using ‘grid’ markers—locational details of particular target areas matched between MGRS or OS maps and GPS units—to identify their targets, which are plotted on the weapons systems ‘computer’ to direct the round appropriately. Thus, based on their indirect nature and firing capability, mortars are considered what military personnel term ‘area weapons.’378 Most commonly used in conventional warfare, they are usually utilized by military forces in a barrage to ‘lay down suppressive fire’ in an operation, to limit the opposing force’s ability to fight or fire back.379 Yet, because of this intent, they are known to be relatively inaccurate weapons systems in comparison to other, more modern weapons, with a considerable margin of error when targeting defined points. As one British military officer familiar with these weapons systems noted, in cases where you have a high degree of confidence in your target grid (i.e., you have defined buildings or landmarks against which to measure), mortars may be accurate to about 10 metres of your intended target.380 However, in cases ‘where these defined landmarks do not exist, like in open fields, forests, etc. even those that are pretty good at plotting their grids are usually only accurate 374 Ibid. 375Department of the Army, FOIA 23856-23876, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23856_23876.pdf. 376 GICHD, “81MM, 82MM, and 120MM Medium and Heavy Mortars” Characterisation of Explosive Weapons project, http://characterisationexplosiveweapons.org/studies/annex-c-81-82-120-mm-mortars/. 377 British Army Officer (name withheld). Interview with author, 08/01/2023. 378 Ibid. 379 Ibid. 380 Ibid. 131 in their assessment of the ground to about 100 metres of the intended target, so there is a lot of room for error.’381 Further, the nature of the weapon system itself, can introduce error into its use. A transportable launching system makes it easy to move from place to place, but this means that errors can often be made in set up and the system needs to be calibrated each time. While these features of the weapon system are not considerable issues when being used for suppressive fire in open areas in conventional warfare, it can cause considerable risks when used in urban contexts or in situations where there is close interaction between combatant and civilian communities due to its relative inaccuracy in comparison to more modern precision weapons. As the next phase of Operation Choctaw required the support of mortar units to provide suppressive fire in the event Coalition forces came under threat, by 9:00 am on December 31, 2006, Captain Nicholson was keen to ensure his team was set up and ready for these requirements. Noting that in order to do so, his team would first need to conduct a test firing (also known as a ‘mortar registration’) of their systems to ensure confidence in the accuracy and functionality of their systems, Captain Nicholson took his unit on a patrol to undertake this test.382 Seeking to locate an area clear of houses and buildings to conduct this registration to limit risks to civilians nearby, Captain Nicholson and his unit patrolled this area seeking an open area clear of these types of risks. However, he and another unit were unable to locate an area completely clear of structures, instead making a tactical decision to conduct the registration in a cleared field to the immediate East of one of the villages they were observing.383 Captain Nicholson took his team to conduct a GPS check in the field to get an exact grid reference and both he and his assistant Fire Support Officer used additional equipment to double check their grids to the target.384 Once they had verified the grids, they returned to an abandoned house under construction overlooking the field, where the team began to set up the weapons system.385 In a sworn statement, Captain Nicholson recounts what happened next from his perspective. I asked 2LT Johnson to verify the grid he was sending to the Mortar section. He read back the grid and informed me that the target area was [redacted] past my OP [observation point]. I made sure everyone from the patrol was under cover (in building) 381 Ibid. 382 Department of the Army, FOIA 23877-23896, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23877_23896.pdf. 383Department of the Army, FOIA 23856-23876, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23856_23876.pdf. 384 Ibid. 385 Ibid. 132 as we were firing with DANGER CLOSE conditions.386 The target area looked to be at least [redacted] from any occupied houses on the [redacted] line of fire. The round was fired and landed inside the village to my right. I called check fire to the gun line and ordered the tubes to be checked and verified by the mortar NCO.387 2LT Johnson, the primary observer for the mortar registration, also verified Captain Nicholson’s accounts. He stated, I was the primary observer for the mortar registration. A [redacted] man security element, Captain Nicholson the SQN FSO, and I secured a building that was still under construction as the observation point. The [redacted] provided a clear field of observation of a large field to the north. Directly to our [redacted but known to be East] sat a small village with 10 to 20 civilians outside, going about their daily lives. Captain Nicholson and I were very cognizant of that when we were selecting our registration point and chose a tree well out of the [redacted]. As I recall, the range from the tubes to the target was [redacted].388 To ensure an accurate grid to the registration point grid, Captain Nicholson led the patrol to the registration point, where he and I both obtained grids from [redacted] simultaneously. I copied the grid he read; read it back to confirm, then checked it against the grid on my GPS. After cross-checking grids, we returned to the observation point to register the tubes. CPT directed the security element inside the house, while he and I stood on the steps leading to the rooftop. Using his radio, I called the registration. After receiving [redacted] I heard the incoming round to the east over the village and saw the impact on a small house. Captain Nicholson immediately called [redacted, thought to be Lieutenant Colonel Kendall] and told the gun line not to touch the guns.389 In the immediate aftermath of the incident, multiple military personnel in the area of the village, including those attached to the Mortar unit involved, stated they heard the ‘screams of women and children from the village’ begin immediately after the round struck the house.390 Captain Nicholson immediately reported the incident to the Commander in charge of the area, Lieutenant Colonel Kendall, who instructed the unit not to touch the gun that was fired.391 He began to put together a patrol to meet the unit in the village, instructing Captain Nicholson to lead his unit to the village immediately to assess the damage. Captain Nicholson describes that ‘once we went into the village, we immediately were directed by the villagers to the house that had been hit. Through sign language the villagers told me that [one child had died and one was injured]. I 386 Ibid. 387 Ibid. 388 Firing under danger close conditions, as stated in several other testimonies and in contemporary doctrine which governs the use of 81mm mortars in coalition operations, would mean less than 140 metres to either friendly forces, civilians, or civilian infrastructure. 389Department of the Army, FOIA 23856-23876, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23856_23876.pdf. 390 Ibid. 391 Ibid. 133 inspected the house and witnessed the hole in the ceiling as well as the floor of the building. There was no body as the family had taken it away. There were blood stains in the room.’392 Information collected from the family later confirmed this. While most of the family who owned the home had been outside at the time the round pierced their roof, their 6-year-old son had been inside the home. The impact of the blast, combined with the shrapnel effect of the weapon, killed him instantly.393 His sister, who was outside at the time of the incident was treated for shock and lacerations to her scalp caused by flying glass from the home’s windows and doors.394 The following sections provide an accounting of the civilian harm response and compensation process that was undertaken by Coalition forces in this case. Reporting & Initial Assessment Internal military reporting of the incident occurred within minutes of the impact of the weapon in the village. As Captain Nicholson noted, he called a ‘Check Fire’—an order to cease firing and check the calibration of the gun tubes.395 Noting that the round had landed in the village to their immediate East, Nicholson ‘then called the Lieutenant Colonel Kendall and informed them that we had an incident and requested guidance as to whether or not to take the patrol into the village.’396 While awaiting instructions, an initial assessment of the weaponry was undertaken. As members of the mortar unit recount in their sworn statements, Approximately 0900 I walked outside after the registration round was fired. I just began hearing the communication between [redacted] and my FDC to check fire. The gun was put in a check fire and backed off the gun. All check fire procedures were followed. My FDC reviewed his data with [redacted] and it was correct. He checked the gun data, lay and sights, which were all correct. I also checked both and nothing was incorrect on our end.397 One of the Staff Sergeants overseeing the launching of the round recounted similar events in their testimony. He notes 392 Ibid. 393 Department of the Army, FOIA 23877-23896, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23877_23896.pdf. 394 Ibid. 395Department of the Army, FOIA 23856-23876, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23856_23876.pdf. 396 Ibid. 397 Ibid. 134 On 31 Dec 2006 at or about 0900 myself and SSG [redacted] were conducting a registration of the [redacted] mortars. SSG and I were in FDC, SPC [redacted] and SPC [redacted] were on the gun line. Once the CPT [redacted] decided on a location for the reg point, he contacted SSG [redacted] over the Net and relayed grid [redacted] elev[ation] [redacted] as the POI. Data was tabulated on both [redacted] (by SSG [redacted] and myself). The following data was given to the gun line after it was confirmed by FDC. [redacted]. The range was [redacted] and [redacted] SPC [redacted] the round and fired it while SPC [redacted] stood on the baseplate to settle it. CPT [redacted] called a check fire. All data was rechecked and confirmed.398 Similarly, the three Specialist gunners who were in charge of firing the round using the gun tubes recounted the same events, with some further details. One of them noted that as they input the data into the system, the other gunner ‘stood on the baseplate to settle the system’ however as the weapon system fired and the baseplate settled, the round landed short.399 They note that there was ‘nothing out of the ordinary before and after firing’ and that they ‘did standard check fire procedures, stepped away from the gun, and all data and the system was correct and checked by SSG [redacted].’400 This accounting of events, including settling of the baseplate, the check fire procedures, and the accuracy of the data and system, was corroborated by the other two Specialist gunner’s on the gun line.401 Shortly after check fire procedures were completed and with Kendall leading a patrol to the village, Nicholson also proceeded into the village with his patrol group to ‘see where the round landed and if it hurt anyone.’402 2LT Johnson recounted their experience in the village, stating that upon their arrival a group of 8-10 military aged males were congregated outside the house upon which the impact occurred. They showed us the damage and related to us that there were 1-2 children injured. They brought a young girl with a small cut on her head to our medic, who administered first aid. During this time, I recorded the grid to the building, using my GPS. Upon entering the house, I saw a hole in the roof, a crater in the floor, and damage to all of the walls, and glass broken out of all the windows.403 398 Ibid. 399 Ibid. 400 Department of the Army, FOIA 23877-23896, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23877_23896.pdf. 401 Department of the Army, FOIA 23856-23876, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23856_23876.pdf. 402 Ibid. 403 Ibid. 135 Approximately twenty minutes after Nicholson and his patrol group arrived in the village, the second patrol group, led by Kendall arrived with an interpreter and the unit’s Chaplain. The villagers told the interpreter that ‘in addition to the injured girl, there was one [redacted] boy killed.’404 Lieutenant Colonel Kendall took control of the scene and led the initial assessment. He recounts the following in his sworn statement Upon arrival at the scene O/A [on or about] 1000 hours I recall being met by 2LT [redacted], who informed me that a child had been injured and taken to the hospital. Continuing further, I found 2 x LN males, one of whom was holding [reacted] girl with a head injury (scalp laceration). The little girl was being treated by SPC [redacted], the medic. She was in a state of shock. I was informed at this point that a LN child (male) was killed and the girl before me was the only other injury. No injured person had departed the area. I checked security and moved to the P[oint] O[f] I[mpact]. The glass of the back door, along with every window in the structure had been blown out. The victim was the only person inside at the time of the impact. He was killed instantly, described as [redacted], consistent with the shrapnel effect of the round. It was apparent the fuse had been set on delay, as the round punched a small hole in the ceiling and impacted on the floor. The building itself contained the blast and shrapnel. The injured girl had been hit by flying glass from the front door. She along with the rest of her family had been outside during the attack. The father of the victim was not present, having recovered the remains of his son and moving with the rest of the family to a cousin’s house nearby.405 He notes that he made an initial assessment of what had occurred based on his observations. ‘I made a rapid determination that we had fired [the registration round] over an inhabited area and had fired within [redacted] of an inhabited structure/L[ocal] N[ational] population, twice violating my directives on use of indirect fires [redacted].406 Based on this assessment, Kendall informed higher headquarters of the incident shortly thereafter via a S[erious] I[ncident] R[eport], which formed part of the evidence utilized during the investigation phase in this case, but was not included in the declassified documentation.407 Based on the declassified documentation regarding this incident provided to the ACLU, alongside witness testimony, the reporting and initial assessment phases in this case were considered to be effective. The incident reported was reported internally by Captain Nicholson within minutes, and following the initial assessment, a further Serious Incident Report was filed 404Department of the Army, FOIA 23877-23896, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23877_23896.pdf. 405 Ibid. 406 Ibid. 407 Ibid. 136 within hours of the incident with the higher headquarters by Lieutenant Colonel Kendall.408 Due to the immediate presence of both Nicholson and Kendall’s patrols in the village in the aftermath of the strike Coalition forces were able to facilitate the receipt of information about the incident from witnesses rapidly, and established a point of contact for future information and reports with a cousin of the family affected.409 According to witnesses, language and access barriers were minimized significantly by attending the scene with an interpreter present, and transparency and communication were maintained with the family and witnesses consistently during the reporting process and after.410 Further, witnesses emphasized being surprised by the presence of unit’s Chaplain during this time. They noted that while the Chaplain did not share their religious background, they made efforts to provide comfort as the other members of the patrol began carrying out the assessment and investigation.411 In particular, several witnesses note the approach taken by Kendall in the immediate aftermath of the incident provided them additional confidence not only that this had been an accident, but also that the issue was being taken seriously and would be investigated thoroughly.412 While the family was too distraught to speak with Coalition forces in depth at the time, assurances were given to the family point of contact by Kendall that he would personally return to engage in those discussions in the coming days.413 The initial assessment phase was undertaken by Kendall and his patrol unit while at the scene. He notes undertaking a full assessment of the damage caused by the strike, including discerning the fuse delay on the weapon, and the impact of the shrapnel within and outside the home.414 Further, he assessed the positioning of the weapon in comparison to the village, determining at the scene that multiple directives issued by him had been broken in the course of this mortar registration.415 Upon this determination, Kendall sent a small patrol back to the Advance Command Post to collect an investigatory camera and other equipment to begin the process of on-site evidence collection and investigation. During this time, witnesses interviewed in the course of this study noted that Kendall continually explained what his team were doing and this 408 Ibid. 409 Ibid. 410 Witness 6A (name withheld). Interview with author, 01/09/2022. 411 Witness 6C (name withheld). Interview with author, 01/09/2022. 412 Witness 6D (name withheld). Interview with author, 01/09/2022. 413 Department of the Army, FOIA 23877-23896, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23877_23896.pdf. 414 Ibid. 415 Ibid. 137 was communicated to the witnesses present by the interpreter.416 All evidence collection was undertaken under the observation of witnesses, with one noting ‘the interpreter explained what they were doing so that we knew.’417 Kendall also recounts the next steps in the process, including the referral of the incident for review by a competent authority. He recounts the following. The patrol returned and I directed investigatory pictures. The tailfin of the 81mm mortar round was photographed where it lay (kitchen doorway) and then recovered. We established a POC for the Family [redacted], the first cousin of the father of the victim. The family was too distraught to meet with us at that time. They planned to conduct a local burial of the deceased later in the afternoon. All elements departed the area and returned to the ACP O/A [on or about] 1130. I immediately gathered the FSO CPT [redacted], 1LT [reacted] (Mortar PI), SFC [redacted] (Mortar PSG). I informed them a 15-6 investigation is initiated. I directed them to freeze and collect all firing data/collect a gunline investigation. I told them all mortar missions were cancelled unless specifically authorized by me. I informed them that I would only authorize them to fire [redacted]. I told the FSO he was not authorized to vacate the fires cell from the TAC, that this was unacceptable and to never do it again.418 Shortly thereafter, a 15-6 investigation, as ordered by Kendall, was initiated beginning the formal investigation process. Investigation, Consequence Management, Compensation, and Amends As indicated by Kendall, an AR 15-6 administrative investigation was initiated later in the day on 31 December 2006 and continued until at least mid-February 2007 according to declassified though heavily redacted documentation. As part of the investigation and at Kendall’s direction all firing data was collected from the gun used in the mortar registration. Kendall notes that following their return to the ACP The mortar platoon leadership (I believe SFC [redacted] but cannot specifically recall) informed me later that all firing data had been collected for the investigation/pictures taken of the guns and sights, etc. Later in the day CPT [redacted—Nicholson] approached me, I knew he felt bad about the whole incident. He informed me he felt it was his fault. At the time I told him that we would gather all the facts to determine what had happened and why. I told him accidents and bad things can happen in a combat zone and to focus on the mission at hand.419 416 Ibid. 417 Witness 6B (name withheld). Interview with author, 01/09/2022. 418 Department of the Army, FOIA 23877-23896, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23877_23896.pdf. 419 Ibid. 138 With all firing data collected, the investigation began. The final investigation documentation indicated a thoroughness not previously seen in the course of this study, with the investigation itself accompanied by four enclosures and 33 exhibits, including maps, doctrine, photos, maintenance information, diagrams of anticipated and actual impact areas, a document outlining the fundamentals of mortar gunnery, safety procedures, weapons record data, and 22 sworn statements collected between the time of the incident and 21 January 2007.420 While the results of the investigation are largely redacted, the enclosures and exhibits are not, including 87 pages of investigatory records and supporting documentation. The conclusion of the investigation appears to be that the mortar round fell short of its intended target due to the baseplate of the weapon system not being correctly ‘settled’ into the ground, causing it to ‘almost tip over’ when the round was fired.421 However, the larger issue addressed by the investigation concerned accountability. It explored whether the mortar registration should have been undertaken at all. It finds that Captain Nicholson, as the Officer in charge of the mortar registration, had committed dereliction of duties, intentionally deviating from two tenants of the Rules of Engagement established the Coalition forces and Lieutenant Colonel Kendall during Operation Choctaw.422 In his decision to conduct the mortar registration in the field he chose, he selected a target that would require firing over a populated area (the first violation) and under DANGER CLOSE conditions (the second violation) based on a proximity of the intended target to both a civilian populated area and the team’s own observer of less than 140 metres.423 Captain Nicholson agreed with this assessment, arguing that he deviated from these Rules of Engagement based on his assessment of the tactical situation, however, the legal review conducted of the incident noted that the ‘platoon was not engaged in any contact nor is there evidence of a hostile act/intent’ that would justify such a deviation.424 It further notes that ‘evidence indicates that the FSO [Captain Nicholson] understood the Battalion Commander [LTC Kendall]’s ROE and wilfully deviated from that ROE.’425 Although recommendations 420Department of the Army, FOIA 23836-23844, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23836_23844.pdf. 421Department of the Army, FOIA 23877-23896, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23877_23896.pdf. 422 Department of the Army, FOIA 23836-23844, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23836_23844.pdf. 423 Department of the Army, FOIA 23856-23876, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23856_23876.pdf; Department of the Army, FOIA 23836-23844, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23836_23844.pdf. 424 Ibid. 425 Department of the Army, FOIA 23836-23844, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23836_23844.pdf. 139 regarding any accountability or punishment for Nicholson are redacted, notes in the margin of the documents by the Legal Advisor and LTC Kendall indicate these were discussed further after the investigation was finalized.426 Based on the declassified documentation and the testimony of military personnel involved as well as witnesses to the incident, both the investigation and consequence management, compensation, and amends phase were deemed effective in this case. Both witnesses and military personnel involved in the incident particularly noted how quickly the incident was referred for investigation by Kendall and the thoroughness with which evidence was collected from the scene, and testimony collected from external and internal witnesses.427 Thorough documentation of the site and the scene within and around the house impacted was undertaken using both physical evidence collection methods and photography, as well as the collection of civilian testimony. Further, in the course of the investigation and release of the documentation publicly, significant efforts seem to have been made to protect the privacy and security of all individuals involved, including affected civilians and military personnel. Clear, transparent, and frequent communication was maintained with survivors and witnesses throughout the investigation, including during the remainder of Operation CHOCTAW. The majority of this communication was personally undertaken by LTC Kendall, who interacted and spoke with the family frequently following the incident. As documented within the declassified documentation, this frequent communication included a return visit to the village by LTC to conduct consequence management and provide compensation to the family. He states, We continued on with the mission and conducted infiltration as planned later that evening (see OP[ERATION] SUM[MARY] for OP[ERATIO]N CHOCTAW). In less than 24 hours from our exfil, I returned to the area to conduct consequence management and provide a solatia payment to the father of the deceased. The results of the mission are contained in our OPSUM for OPN REBOUND.428 At this time, he apologized for the incident informing them they had found it to be accidental, but that particular elements of their procedure would be improved so that similar things did not 426 Ibid. 427 Witness 6B (name withheld). Interview with author, 01/09/2022; Witness 6D (name withheld). Interview with author, 01/09/2022; Witness 6E (name withheld). Interview with author, 03/16/2022. 428 Department of the Army, FOIA 23877-23896, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23877_23896.pdf. 140 happen again.429 During this visit he also informed the family that a member of the team responsible for the incident was being investigated for dereliction of duty, assuring the family and witnesses that if appropriate, that individual would be punished.430 Figure 3.8 below shows the Rights Waiver form completed by Captain Nicholson regarding their suspected dereliction of duty in this incident. Figure 3.8: Rights Waiver Form for dereliction of duty of Captain Nicholson431 The transparency with which consequence management actions were undertaken by LTC Kendall was particularly appreciated by the family and witnesses. One witness noted, it seemed like this man cared about what happened. He came and he said sorry and he provided some money to the child’s father. He spent a lot of time with the family and asked them questions about their children. He said he would speak to them again in the future. He made a lot of effort.432 Another witness from the village said, ‘after this happened, we were very upset. We were also worried for our own children, if such things can happen so close, we do not feel safe. However, it seems this man made some efforts to improve the family’s situation and reassure us all.’433 Another witness noted, ‘It is devastating to lose a child and we will never forget this. However, 429 Witness 6B (name withheld). Interview with author, 01/09/2022; Witness 6D (name withheld). Interview with author, 01/09/2022. 430 Ibid. 431 Department of the Army, FOIA 23877-23896, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23877_23896.pdf. 432 Witness 6A (name withheld). Interview with author, 01/09/2022. 433 Witness 6D (name withheld). Interview with author, 01/09/2022. 141 we understand now that this was an accident and they are very sorry. They provided us some money. It does not replace our child but they apologized and said sorry and this will help to repair our home.’434 However, while the consequence management actions undertaken in this case are largely positive and representative of good practice, the family noted one aspect that did not meet their expectations. ‘The amount of the payment, it is helpful but not enough. We will repair our house, but we now suffer very much as a result of this. We have medical needs and need support as we grieve.’435 They noted that this did not change their overall view of the process, noting that they felt respected by Coalition forces involved, but that it was a consideration for them when they thought about their overall impression of the incident and aftermath. The solatia payment-- $5,000—was double the usual payment authorized by Coalition forces in Iraq at this time and required sign-off from the Commander of all Coalition forces in Iraq, General Stanley McChrystal.436 Figure 3.9 below shows the signed memorandum for the payment dated 1 January 2007, over six weeks prior to the completion of the investigation. Figure 3.9: Memorandum documenting the approval of a $5,000 USD solatia payment in this case, 1 January 2007437 434 Witness 6B (name withheld). Interview with author, 01/09/2022. 435 Witness 6A (name withheld). Interview with author, 01/09/2022. 436 Department of the Army, FOIA 23922-23923, ACLU, https://www.aclu.org/sites/default/files/webroot/natsec/foia/pdf/Army23922_23923.pdf. 437 Ibid. 142 Such approvals for higher amounts were rare in Iraq and were generally only approved in exceptional circumstances where Coalition forces’ actions were considered particularly questionable, or the strategic implications for Coalition objectives or their reputation were particularly severe. In this case, the higher payment, was likely motivated by both of these issues as an attempt to ensure the success of Operation Choctaw was not compromised by the incident and also in protecting US forces’ reputation within Iraq and beyond. Assessment of Effectiveness Based on the perceptions of military personnel and witnesses affected by this incident the response and compensation process undertaken in this case is considered to be effective. Figure 3.10 below provides a visual mapping of the facts of this case to the theory of effectiveness explored in this study. Figure 3.10: Visual Mapping of Abadi case to Theory of Effectiveness 143 Throughout the process from reporting through to consequence management, compensation, and amends, witnesses noted the perception of ‘care’ that was demonstrated throughout. They highlighted the role of LTC Kendall in the response process, noting his approach as particularly influential on their perceptions of the process. While some aspects were still flagged as concerns, in particular the amount of compensation and view of loss considered during the consequence management process, witnesses and the village community expressed that they viewed each stage of the process as effective overall. One witness expressed that observing the incident and its aftermath brought their confidence in the legitimacy of Coalition forces and their mission back to neutral ground. ‘This was a terrible thing and I am angry it happened but they came here and apologized, it seems like it was an accident. They tried to help the family. I felt they were trying to do the right thing and help, even if they made this terrible mistake.’438 Further, this case, in particular demonstrates how influential a single personality and a care-centric approach can be on the effectiveness of post-harm response and compensation. Multiple witnesses noted they felt that the Coalition personnel ‘made many efforts to help them.’439 Further, internal declassified documentation showed Kendall’s influence on the speed and thoroughness of both the initial assessment and investigation process. His actions seemed to demonstrate an understanding of the strategic importance of response, with considerable effort exerted to ensure that consequence management and the provision of a solatia payment were provided quickly and in a culturally appropriate manner in the midst of an active operation. This insight is an important one in understanding the considerable impact internal ‘champions’ of good response and compensation practice may have on outcomes. 3.7 Summary The cases above have demonstrated that not only is the existence of a civilian harm response and compensation approach necessary and important strategically in mitigating strategic impacts in counterinsurgency campaigns, but also that particular approaches to conducting post-harm response and compensation has a considerable role in the relative effectiveness of these 438 Witness 6A (name withheld). Interview with author, 01/09/2022. 439 Witness 6A (name withheld). Interview with author, 01/09/2022; Witness 6B (name withheld). Interview with author, 01/09/2022; Witness 6C (name withheld). Interview with author, 01/09/2022. 144 processes across cases, as do particular factors. These approaches and factors have a significant influence on the perceptions that Iraqi civilians, witnesses, and communities developed of Coalition forces in the aftermath of civilian harm incidents. Based on these perceptions, across these three cases in Iraq, we see varying outcomes. Table 3.2 below provides an overview of those identified in the cases explored above. Table 3.2: Summary of Case Outcomes in Iraq # Incident Date & Location Investigation Status Compensation Provided? Civilian Expectations Met? Support obtained, retained, regained? 1 June 26, 2003; Hay al Jihad, Baghdad, Iraq No Partial No No 2 Aug 28, 2005; Hay al Adel, Baghdad, Iraq Completed Yes Partial Partial 3 Dec 31, 2006; NE Ramadi, Tikrit, Iraq Completed Yes Yes Yes In each case evaluated in this chapter the approach to civilian harm response, compensation, and amends undertaken by Coalition forces had differing effects on the theory of effectiveness presented in chapter 1 and 2. In particular, each case demonstrated the significant influence varying approaches to response, compensation, and amends can have on whether Coalition forces are able to obtain, retain, or regain the support of affected communities in the aftermath of civilian harm incidents. In Iraq, as demonstrated in this chapter, the influence civilians’ perceptions of the effectiveness of these response mechanisms are a critical component in their ability to retain or gain legitimacy in communities affected by civilian harm incidents. In the case of Muhammad al Qubaisi’s death in the Hay al Jihad neighbourhood of Baghdad on June 26, 2003, while the reporting and initial assessment phases of the case were largely viewed as effective, the lack of investigation, consequence management, or meaningful compensation and amends undertaken in this case was particularly influential on civilians’ perceptions of coalition legitimacy. According to witnesses, the lack of Coalition engagement in an investigation and meaningful compensation process impacted their confidence in the Coalition’s normative and performance-based commitment to its stated civilian harm mitigation and response policy, negatively impacting their support for Coalition forces’ mission and objectives. 145 Similarly, the lack of communication and transparency surrounding the response process and limited engagement the family had with Coalition forces impacted their perception of the Coalition’s procedures and ability to exert legitimate authority in an effective and efficient manner. They highlighted that they were aware of other cases where other civilians affected by civilian harm incidents encountered much more substantial levels of commitment to response and compensation. Thus, they did not question the existence of these procedures (and procedural legitimacy as a result). However, knowing procedures existed for these incidents and that others had experienced more robust investigation and compensation approaches previously compounded their already damaged view of Coalition legitimacy from a normative and performance-based perspective. Their negative experience of the response and compensation process compounded their initial experience of the civilian harm incident rather than offsetting it, drastically decreasing their confidence in the Coalition’s ability to perform their expected functions as a legitimate actor tasked to protect them from harm and guarantee strong and accessible options for justice and accountability. Thus overall, while the al Qubaisi family had previously supported US forces in the area, and even retained confidence in the Coalition during the reporting and initial assessment phase, they were vocal that the Coalition’s approach to the investigation, compensation and amends process was offensive and contributed to the family vowing to take revenge. Although they were understanding that the initial incident of harm was likely an accident, the lack of meaningful Coalition engagement in an investigation, compensation or amends meant there was little opportunity for Coalition forces to offset the legitimacy costs of the incident by demonstrating their normative, performance, and procedural legitimacy through alternate means. This left open opportunities for insurgent actors to influence the perceptions of the survivors and family in the aftermath of the response process and capitalize on their anger to contribute towards insurgency goals, counter to the logic of the role envisioned for civilian harm response and compensation in the counterinsurgency theory of change. In the case of Reuters journalists Waleed Khaled and Haider Kadhem in the Hay al Adel neighbourhood of Baghdad on August 28, 2005, again, witnesses considered the reporting and initial assessment phases of the response process to be effective. However, the lack of 146 transparency and impartiality during the investigation phase was detrimental to witnesses’ perceptions of Coalition forces legitimacy. According to witnesses and Reuters employees, the bias involved in the investigation played a significant role in diminishing their confidence in Coalition forces, particularly given the conflicting findings of the SIGIR and Risk Advisory Group investigations. While witnesses found the subsequent consequence management, compensation, and amends process largely effective, they noted that the issues which plagued the investigation were not fully offset but the compensation process, particularly as they did not feel Coalition forces took appropriate steps to pursue accountability. Therefore, while there were some aspects of the response process in this case that reflected good practice and had a positive influence on retaining witnesses’ perceptions of Coalition legitimacy following the incident, the shortfalls in the investigation process caused significant damage to the Coalition’s normative, procedural, and performance-based legitimacy. Witnesses noted that the lack of transparent and impartial engagement in the investigation process negatively influenced their perceptions of the Coalition’s commitment to a shared vision of normative and procedural legitimacy in Iraq. Further, understanding that a robust investigatory process did exist and had been carried out in a less biased way in other cases of civilian harm in Iraq compounded the problem, with affected communities also noting a negative shift in their perception of factors indicating performance-based legitimacy. While all interviewees remained staunchly opposed to insurgent actions in the aftermath of the incident, many voiced that they also no longer actively supported Coalition action in Iraq again, counter to the logic of the civilian harm response should play in the population-centric counterinsurgency theory of change. Finally, in the case of Abdullah Abadi in a village northeast of Ramadi in Tikrit on December 31, 2006, witnesses report positive perceptions of each phase of the response and compensation undertaken following the incident. They point repeatedly to a perception that Coalition forces ‘cared’ about what had occurred and their needs and prioritized clear, transparent, and consistent communication during the process. In particular, witnesses noted that as a result of the process, their confidence in Coalition forces’ normative legitimacy grew from prior levels. Coalition forces were able to offset some of the negative impacts the civilian harm incident had on their perceptions of Coalition performance-based legitimacy as a result of the incident by utilizing the 147 response and compensation process as an opportunity to demonstrate their normative, procedural, and performance-based legitimacy through different channels. By prioritizing the needs of the family, including through providing for basic necessities using compensation, demonstrating genuine care and concern for the family, and pursuing justice and accountability through a rigorous investigation, they were able to restore the family and witnesses’ confidence in the Coalition’s normative, procedural, and performance legitimacy by demonstrating their responsiveness to the needs and expectations of the family and community. Importantly, across all three cases, evidence suggests that while all stages of the process are important to the overall determination of effectiveness, two have a more substantial impact on Coalition legitimacy. The cases explored above demonstrate that survivors, families, and witnesses primarily update their perceptions of Coalition legitimacy based on whether their expectations of legitimate actors are met during the investigation and compensation and amends phases of the response process. Where Coalition forces predominantly met civilian expectations across both these phases, community perceptions generally stabilized in the aftermath of the event. However, in cases where one or both stages were characterized by negative or mixed results, Coalition legitimacy within the community tended to decline substantially. 148 Chapter 4: Ad-Hoc and Everywhere Civilian Harm Response and Compensation in Afghanistan, 2001-2014 I don’t accept their apology. I would not trade my sons for the whole kingdom of the United States. Initially, we were thinking that Americans were the friends of Afghans, but now we think that Americans themselves are terrorists. Americans are our enemy. They bring terror and destruction. Hajji Sharabuddin, Interview with investigative reporter440 4.1 Introduction In 2001 when the United States and its allies invaded Afghanistan following the September 11, 2001, terror attacks on the World Trade Centre in New York City, the immediate objectives of the operation were clear– overthrow the Taliban government and install a new, democratic governance system unconducive to the support of global terrorism. Within three months these immediate objectives were achieved– the Taliban government was removed with many of the militants fleeing the country for surrounding areas and a transitional government was installed. By October 9, 2004, the Afghan people made history when they held their nation’s first direct presidential elections, with parliamentary elections scheduled for the Spring of 2005. These early political successes gave the Afghan people significant hope for the future, but day-to-day, the presence of a violent and ongoing counterinsurgency campaign was ever present for the nearly twenty years that followed. With the constant presence of militant groups including the Taliban and al Qaeda, as well as variable allegiances amongst the population, the politico-military situation in Afghanistan was fraught. By 2006, Coalition forces in the region were facing increased animosity and decreased support. Incidents of civilian harm caused by coalition forces were escalating, and support for Taliban and Al Qaeda militants was growing along with it. By 2009 the Coalition had made the connection– in order to retain, regain, or maintain the legitimacy they sought, they needed to mitigate the number of civilian casualties they caused, and respond better to those that still occurred. The contemporary Western approach to civilian 440 Jerome Starkey, ‘NATO ‘covered up’ botched night raid in Afghanistan that killed five’ The Times, March 13, 2010, https://www.thetimes.co.uk/article/nato-covered-up-botched-night-raid-in-afghanistan-that-killed-five-fc9n5g92gbj. 149 harm response, compensation, and amends was thus developed in the crucible of the Global War on Terror, with its implications wide reaching in Afghanistan, Iraq, and subsequent contemporary campaigns. Spearheaded by General Stanley McChrystal, it reoriented the ISAF operation’s approach to counterinsurgency to foreground civilian perceptions, particularly when it pertained to their safety and security.441 However, it also recognized the vitally important opportunity in the immediate aftermath of civilian harm incidents that had not been avoided, where Western forces could either maintain or lose the support of critical communities. To this end, this chapter analyzes the growth and development of contemporary civilian harm response, compensation, and amends processes in the early stages of their formation in Afghanistan. It specifically assesses the effectiveness of civilian harm response processes in mitigating the strategic effects of civilian harm incidents on counterinsurgency objectives across three cases of civilian harm incidents caused by ISAF forces. 4.2 The Conflict, Civilian Harm, and Compensation The War in Afghanistan has been central to global consciousness, particularly in the West, for the last twenty years and has continued to shape how political and military authorities think about and plan for ‘small wars,’ particularly those that involve counterinsurgency and counterterrorism objectives. However, the conflict’s roots run deep. The influence of Afghanistan’s complex contemporary history is evident not only in the lead up to September 11, 2001, but also in the form of conflict that unfolded, and the effectiveness of strategies employed by Western forces in the region in the years since. This section provides a brief overview of relevant Afghan history and the ways it has shaped the nature of conflict in the country in the 21st century as well as the role civilian harm response and compensation has played in the conflict. In April 1978, the prior centrist government of Afghanistan led by President Mohammad Daud Khan was overthrown in a military coup led by military officers touting communist beliefs and led by Marxist-Leninist Nur Mohammad Taraki.442 In a power sharing agreement, two communist parties, the Khalq and Parcham parties, took control of the country. To secure their 441 Stanley McChrystal, Commander of NATO’s International Security Assistance Force, Tactical Directive (releasable portions), 2 July 2009, http://www.nato.int/isaf/docu/official_texts/Tactical_Directive_090706.pdf. 442 Angelo Rasanayagam, Afghanistan: A Modern History (New York: IB Tauris & Co. Ltd., 2005). 150 claim to power and decrease opposition, the new government launched wide ranging reforms of both land ownership laws and Afghan social life, alongside targeted assassinations of those who opposed them.443 These reforms sent shockwaves through the population, and anger and resentment rose rapidly amongst the population. Insurgencies developed rapidly bringing together previously disparate tribal and urban groups and became collectively known as the mujahideen.444 Uprisings against the communist government spread across the country, resulting in the Soviet invasion of Afghanistan in December 1979. Despite the intervention to prop up the communist government, the mujahideen rebellion continued to grow, ultimately resulting in a stalemate. This stalemate was broken when the United States provided anti-aircraft weaponry to the mujahideen, decreasing the influence of Soviet airpower in the country, drastically changing the course of the conflict. By the 1980s the conflict in Afghanistan was becoming problematic for the rapidly declining Soviet Union. The United States and other countries had continued to provide weaponry and financial support, via Pakistan, to the mujahideen and their ranks had grown considerably with volunteers from sympathetic Muslim countries joining the rebel forces in Afghanistan.445 By 1988 the Soviet Union signed an agreement with the United States and the governments of Afghanistan and Pakistan guaranteeing the withdrawal of Soviet troops from the country in 1989.446 Shortly thereafter, Afghanistan returned to a neutral status within the Cold War international system and in 1992 rebel groups overthrew the remaining elements of the communist government in Kabul, including the last Communist President.447 A transitional government supported by many of the rebel factions of the former mujahideen was installed, but the country was slipping rapidly into chaos as rebel groups fought amongst themselves for power. By 1994, a new group– the Taliban– had emerged. In the year that followed, the group seized control of most of the country, including Kabul in 1996.448 Yet, they failed to wrestle the Northern part of the country from former mujahideen forces, who had renamed themselves Northern Alliance. Fighting between the Taliban, the Northern Alliance, and other smaller regional rebel groups and 443 Ibid. 444 Thomas Barfield, Afghanistan: A Cultural and Political History (Princeton: Princeton University Press, 2012). 445 Ibid. 446 Ibid. 447 Angelo Rasanayagam, Afghanistan: A Modern History (New York: IB Tauris & Co. Ltd., 2005). 448 Ibid. 151 strongmen continued unabated into 2001. However, on September 11, 2001, the future of Afghanistan changed drastically. In the days following the September 11, 2001, terrorist attacks on the World Trade Centre, military and political attention turned to the Taliban and the group’s connections to the Islamic extremist group, Al Qaeda. Although the focus of the Global War on Terror that was declared was squarely focused on rooting out Al Qaeda’s influence globally, the US and its Coalition forces found a useful target in the Taliban government of Afghanistan, after the Taliban refused US demands to extradite Osama bin Laden, who was thought to be being sheltered by the Taliban in Afghanistan.449 In the wake of this refusal, US Special Operations forces in collaboration with the Northern Alliance carried out a series of operations in Afghanistan that ultimately toppled the Taliban government in December 2001.450 A transitional government was installed and in 2004 a new government was elected. However, throughout the entirety of the Islamic Republic of Afghanistan’s existence, the government and its Western allies have struggled against a consistent and powerful Taliban and al Qaeda insurgency. Following the initial intervention, the US-led coalition forces worked to defeat the military capacity of the Taliban while attempting to rebuild strong governmental institutions, but despite these efforts, the US’ counterinsurgency strategy was failing. Beginning in 2005, violence escalated rapidly as the Taliban re-emerged, employing new tactics being used by insurgency forces in Iraq, including widespread suicide bombings and use of improvised explosive devices, both against NATO forces and Afghan civilians.451 This resurgence was coupled with a significant decline in population support for Western forces. Multiple factors contributed to the anti-Western sentiment growing in the country. As civilian populations navigated renewed violence, they were also disappointed by broken promises of good governance and reconstruction, as widespread corruption and delays to construction efforts hindered recovery projects. Additionally, a significant rise in civilian casualties caused by both Taliban and Western forces became a key issue, sparking unrest and violent demonstrations 449 Ahmed Rashid, Descent into Chaos: The United States and the Failure of Nation building in Pakistan, Afghanistan, and Central Asia. (New York: Allen Lane, 2008). 450 Ibid. 451 “Afghanistan War, 2001-2014” Encyclopedia Britannica, https://www.britannica.com/event/Afghanistan-War. 152 across the country. Civilians saw Taliban violence and civilian casualties caused by NATO bombings as two sides of the same coin— Western forces had intervened on a mission justified on the protection of Afghan civilians, yet they were failing to do so by preventing Afghan violence and causing casualties themselves.452 By 2008, the situation in Afghanistan had reached a critical juncture– Taliban violence was widespread and civilian casualties caused by NATO forces were at an all-time high. Newly elected US President Barack Obama approved an additional 17,000 US troops to be sent to Afghanistan in February 2009 and replaced General David McKiernan with General Stanley McChrystal.453 Upon McChrystal’s arrival in the country, a new approach to counterinsurgency strategy which had found purchase in Iraq was launched. Instead of focusing on targeting Taliban militants exclusively, NATO forces would have dual objectives including protecting the population from harm resulting from insurgent activities and NATO forces themselves. This policy shift was a drastic change, requiring significantly different operational approaches from NATO commanders and coalition forces personnel. With the release of McChrystal’s Tactical Directive in 2009, the ISAF Commander elucidated the logic underlying the need to reduce the number of civilian casualties resulting from coalition operations in Afghanistan.454 Convinced that the loss of the support of the population was a decisive issue in the campaign, and that civilian casualties resulting from coalition operations were a primary reason for the shifts in population perspectives, McChrystal argued, that ‘[g]aining and maintaining that support must be our overriding operational imperative, and the ultimate objective of every action we take…That means we must respect and protect the population from coercion and violence– and operate in a manner which will win their support. 455 The McChrystal Directive was a turning point in NATOs counterinsurgency approach. Coalition forces recognized that winning the war was directly and incontrovertibly contingent on their ability to protect civilians from harm. Further, they recognized that it was not enough to just protect civilians from harm caused to them by militants. In order to achieve their strategic goals, they needed to win back the support they had lost from the population when their own operations 452 Ibid. 453 Ibid. 454 Stanley McChrystal, Commander of NATO’s International Security Assistance Force, Tactical Directive (releasable portions), 2 July 2009, http://www.nato.int/isaf/docu/official_texts/Tactical_Directive_090706.pdf. 455 Ibid. 153 harmed civilians, and that required the recognition that mitigating the harm their own operations had on civilians. These efforts included increased oversight of operations, prior planning and increased intelligence collection regarding deliberate targeting, and additional analysis requirements for ground troop commanders when engaging with a target. However, it also recognized that, despite best efforts, not all instances of civilian harm could be avoided, and Coalition forces needed to improve their response to civilian harm incidents in order to retain legitimacy.456 Coalition forces began formalizing provisions for civilian harm responses mechanisms with this in mind, including compensation and amends approaches that had been in use since the start of the counterinsurgency campaign. Although informal ‘condolence payments’ had been common throughout NATO operations in Afghanistan, their use was predominantly ad-hoc, inconsistent, and varied substantially across Coalition partners. While their aim was to express condolence and were not to be considered an admission of guilt or responsibility, their use was prevalent to try to stabilize tensions in the aftermath of a civilian harm incident and regain trust within and across communities. However, US forces, as the largest disbursers of these payments in Afghanistan, began to note the effect inconsistency and variation in these payments was having on inter-community tensions and animosity towards US forces. As payments ranged from none in some cases of civilian harm to between $123 and $3,500 in response to someone being killed, the low amount, delayed response, and significant variation in payment level became contentious. As Annie Shiel, senior advisor at the Centre for Civilians in Conflict notes, shifts in policy attempted to remedy this issue. Notably, rather than undertaking civilian harm response procedures and compensation out of a purely ethical obligation, Pentagon guidelines made it clear that these procedures and payments ‘should be used as a counterinsurgency and counterterrorism tool to improve relations between U.S. troops and the local populace.’457 To this end, US forces and many of their NATO allies sought to formalize and standardize the civilian harm response system, not only in the processes and procedures concerning condolence payments, but also in the ways in which reports about civilian harm can be made, the ways they 456 Ibid. 457 Annie Shiel quoted in Pesha Magid, ‘No Apologies: The US Military Often Kills Civilians and Rarely Offers Compensation.’ The Intercept, September 21, 2021. 154 are investigated, and how they are ultimately responded to through compensation and amends processes. Increased formalization of civilian harm response procedures, including incident investigation and consequence management approaches occurred alongside the reforms in compensation approaches and in the early 2010s there was a rapid rise in compensation payments provided to Afghan civilians following civilian harm incidents. Records from 2010 indicate the United States paid out more than $3.7 million in ‘battle damage repairs’ including condolence and solatia payments in Afghanistan, increasing to approximately $12 million in 2011.458 Documents acquired by Wikileaks, the ACLU, The Intercept, and, most recently, The New York Times indicate thousands more payments have been made in Afghanistan in the years since, totalling hundreds of millions of dollars.459 Yet despite increasing standardization, their use remained largely ad-hoc and inconsistent in the country, limiting their potential effectiveness and contribution to counterinsurgency objectives in post-harm situations. Further, it has become evident over time that civilian harm response practices and compensation were simply not meeting the needs of civilians. While the primary motivations of Coalition forces engaging in these procedures were strategic, the expectations civilians had in the aftermath of civilian harm incidents were primarily based on ethical and practical expectations of how Coalition forces should behave. Based on this and when explored through the case studies included below, it becomes evident that compensation alone cannot determine effectiveness. Civilians’ experiences of the reporting, initial assessment, investigation, and compensation and amends process dictates their perceptions of civilian harm response effectiveness and Coalition legitimacy in the aftermath of civilian harm incidents. This is particularly evident in the uneven approaches employed by Coalition Forces in Afghanistan in the cases explored below. 4.3 Overview of Cases The cases under study in this Chapter represent three incidents of civilian harm for which ISAF internal evidence and external reporting documents ISAF responsibility for the civilian harm that 458 Turse, 2018. 459 See Wikileaks ‘War Diaries’, https://wardiaries.wikileaks.org/; American Civil Liberties Union, The Human Cost-Civilian Casualties in Iraq and Afghanistan, https://www.aclu.org/human-cost-civilian-casualties-iraq-afghanistan; The Intercept, “The Drone Papers”, https://theintercept.com/drone-papers/; The New York Times, “The Civilian Casualty Files”, https://www.nytimes.com/spotlight/the-civilian-casualty-files-pentagon-reports. 155 resulted. They range in location, date, number of casualties, and the type and form of response undertaken by the Coalition. These cases, as well as their key features, are detailed below in Table 4.1. Table 4.1: Overview of Cases in Afghanistan Date Location Specific Location Responsible Force Type # killed # injured Investigation status Compensation status Feb 12, 2010 Gardez, Paktia Khataba Village NATO ISAF Special Forces raid 5 3 Completed Yes 14 May 2010 Surkh Rod District, Nangarhar Kashkaki fam. compound NATO ISAF Special Forces raid 9 Completed No Sept 16, 2012 Alingar District, Laghman Noorlam Sahib Valley NATO ISAF Airstrike 7 7 Completed No* The information provided includes the date, location, and specific location of the strike if that level of detail is available, the attribution of the strike, level of casualties (both deaths and injuries), and information regarding whether an investigation into the incident was completed by the Coalition and whether compensation was provided. This information assists in indicating whether civilian harm response processes are interpreted to be effective or ineffective by civilians impacted by the strikes and whether these perceptions influence how they view the legitimacy of the Coalition. Each case is explored in further depth in the sections below. 4.4 The Sharabuddin family, Gardez, Paktia Province, February 12, 2010460 On February 5, 2010, a baby boy was born in the area of Gardez in Paktia province, Afghanistan. The first five days of his life were a happy blur of relaxing moments with his parents, and a constant stream of relatives visiting, cooking, singing, and dancing at the news of his arrival. As is tradition in Afghan culture, the sixth day of this little boy’s life was special. A party would be thrown with many guests to celebrate him receiving his name. 11 February 2010 dawned a cold Winter day at the Sharabuddin family compound in the village of Khataba outside Gardez. By the evening guests were making their way to the family compound of Mohammed Daoud Sharabuddin to celebrate the arrival of the little boy– Daoud’s grandson. Daoud was 43 years old and from the Tajik ethnic group. He was a long-serving, popular and highly trained member of 460 Gratitude is due to the reporting of Jerome Starkey and Jerremy Scahill without which this case study would lack significant vital evidence. 156 the Afghan National Police, having attended many American policing courses and training over the years.461 He had been promoted to the head of intelligence in one of Paktia’s most difficult districts days earlier, so many of the people attending the party were also celebrating his recent achievements.462 Also at the party was Daoud’s brother, Saranwal Zahir, a prosecutor for the US-backed Afghan government in the Ahmadabad district and another male relative, Sayed Mohammed Mal, the Vice-Chancellor of Gardez University.463 All of the men in the family and several of the guests attending the party were serving members of the Government of the Islamic Republic of Afghanistan (GIRoA) or its security forces. Several women were also in attendance, including 22-year-old Bibi Shirin and her four children, 37-year-old Bibi Saleha and her eleven children, and 18-year-old Gulalai, who was engaged to be married in the coming weeks.464 By the next day, Daoud, Zahir, Bibi Shirin, Bibi Saleha, and Gulalai would all be dead. Two more people, including Zahir’s 15-year-old son, Sediquallah, and an unnamed 25-year-old man would die from their wounds in the hours that followed. The party began in the early evening full of laughter and dancing and carried on into the early morning. Shortly after 3:00 in the morning one of the musicians named Dur Mohammed exited the guest room into the compound’s courtyard to go to the bathroom.465 Shortly after exiting the house, a bright light shone directly into his eyes. Temporarily blinded and fearful, he ran back inside. Once there, he told the gathered men that the Taliban were outside. For Daoud, this was a serious concern. As a Tajik and new head of intelligence for the Afghan National Police (ANP) in a region overrun with the Taliban, he and his family were constant targets.466 Fearful of his family being harmed, witnesses say he ran out of the guest room into the courtyard, towards the family quarters with his 15-year-old son, Sediquallah. Daoud had armed himself with an AK-47 kept in the home for these purposes, planning to defend his family against the Taliban attack he 461 Jeremy Scahill, “Pentagon: Special Ops Killing of Pregnant Afghan Women was “Appropriate” Use of Force,’ The Intercept, 1 June 2016, https://theintercept.com/2016/06/01/pentagon-special-ops-killing-of-pregnant-afghan-women-was-appropriate-use-of-force/. 462 Ibid. 463 AR 15-6 Investigation of Gardez District Paktya Province Operation, 12 Feb 10, Report of Investigation, declassified and released 1 June 2016, https://theintercept.com/document/2016/06/01/gardez-foia/. 464 Jeremy Scahill, “Pentagon: Special Ops Killing of Pregnant Afghan Women was “Appropriate” Use of Force,’ The Intercept, 1 June 2016, https://theintercept.com/2016/06/01/pentagon-special-ops-killing-of-pregnant-afghan-women-was-appropriate-use-of-force/. 465 Ibid. 466 The Tajik tribal group were often targets of Taliban violence due to their relatively ‘liberal’ lifestyle in comparison to the puritanical conservative teachings of the Taliban. For example, Daoud and the male members of his family were clean-shaven or wore their facial hair in a moustache, rather than the traditional long bead of the Pashtuns. They regularly drank wine and other spirits, listened to music, and danced while in their compound. Additionally, at the time of this incident, the Tajik tribal group made up the majority membership of the Afghan National Police, and many Tajiks held prominent positions within the GIRoA and government security forces. 157 expected outside. Halfway across the courtyard he and Sediquallah were shot.467 Daoud was killed immediately, Sediquallah was shot twice but survived his injuries, only to die from his wounds hours later. Hearing what was going on in the courtyard, Zahir, Daoud’s brother, ran to the door, also armed with an AK-47. His mother recounted him standing in the doorway shouting into the courtyard ‘Don’t fire, we work for the Government’ but a series of shots rang out, and Zahir fell to the ground where he died from his wounds.468 The next thing their mother says she remembers is turning around in a haze of tears to find her daughter-in-law and the other female friend who had been in the room with her were also dead.469 In the days that followed, NATO forces would publicly describe the night raid carried out on the compound by an American Special Forces from the Joint Special Operations Command (JSOC) as a ‘heroic attack against Taliban militants.’470 A press release shared with journalists the following morning stated that NATO forces had made a ‘gruesome discovery’ in the compound– when they entered the site ‘confirmed by intelligence to be the site of militant activity they engaged in a fire fight with several insurgents.’471 Upon entering the compound they allegedly found ‘three women who had been bound, gagged and executed, with an unnamed senior US military official spoke to CNN confirming the women’s bodies had “the earmarks of a traditional honour killing.”472 Yet the accounting of the incident by civilians and local investigators differed drastically from NATO forces’ reporting. Jerome Starkey, an investigative reporter for The Times arrived in Paktia to interview survivors of the incident in the days that followed. In the course of his investigation, survivors and eyewitnesses recounted the minute-by-minute events of what would become known as one of the ‘most notorious night raids conducted by special operations forces in Afghanistan’– in which seven civilians were killed, including two pregnant women.473 Witnesses described an unprovoked attack on Daoud’s family compound and a chaotic aftermath during which multiple people, including Afghan investigators, attest to seeing 467 Jeremy Scahill, “Pentagon: Special Ops Killing of Pregnant Afghan Women was “Appropriate” Use of Force,’ The Intercept, 1 June 2016, https://theintercept.com/2016/06/01/pentagon-special-ops-killing-of-pregnant-afghan-women-was-appropriate-use-of-force/; AR 15-6 Investigation of Gardez District Paktya Province Operation, 12 Feb 10, Report of Investigation, declassified and released 1 June 2016, https://theintercept.com/document/2016/06/01/gardez-foia/. 468 Jeremy Scahill, “Pentagon: Special Ops Killing of Pregnant Afghan Women was “Appropriate” Use of Force,’ The Intercept, 1 June 2016, https://theintercept.com/2016/06/01/pentagon-special-ops-killing-of-pregnant-afghan-women-was-appropriate-use-of-force/. 469 Ibid. 470 Ibid. 471 Ibid. 472 Ibid. 473 Jerome Starkey, ‘NATO ‘covered up’ botched night raid in Afghanistan that killed five’ The Times, March 13, 2010, https://www.thetimes.co.uk/article/nato-covered-up-botched-night-raid-in-afghanistan-that-killed-five-fc9n5g92gbj. 158 US soldiers dig bullets out of the body of at least one of the pregnant women.474 Seven people died, including three women. Sixteen children lost their mothers. Figure 4.1 below contains photos of Daoud, Bibi Shirin, Bibi Saleha, and Gulalai prior to their deaths. No photos of Tahir, Sediquallah, or an unnamed 25-year-old male who was also killed during the raid are available. Figure 4.1: Photographs of several victims from the assault on the Sharabuddin compound475 In the aftermath of the incident, NATO officials continued to share the honour killing story with the media in a second press release. Shortly thereafter, two internal investigations were commissioned into the incident by General Stanley McChrystal, the ISAF Commander at the time of the incident. Despite mounting evidence, these investigations found that ‘all US soldiers involved had followed the rules of engagement…and the amount of force utilized was necessary, proportional, and applied at appropriate time.’476 Six months after the incident due to widespread witness statements, investigative reporting, and FOIA releases, Adm. William McRaven, Commander of the Joint Special Operations Command, took responsibility for the operation.477Despite heavy redaction, the investigation documentation pertaining to this case has been declassified and released in response to a 2016 FOIA request filed by Jeremy Scahill of The Intercept.478 While the investigation did not recommend any disciplinary action for the soldiers involved, it did acknowledge that “tactical mistakes” were made during the operation.479 The following sections explore the reporting, initial assessment, investigation, and consequence 474 Ibid, Jeremy Scahill, “Pentagon: Special Ops Killing of Pregnant Afghan Women was “Appropriate” Use of Force,’ The Intercept, 1 June 2016, https://theintercept.com/2016/06/01/pentagon-special-ops-killing-of-pregnant-afghan-women-was-appropriate-use-of-force/. 475 Ibid. 476 AR 15-6 Investigation of Gardez District Paktya Province Operation, 12 Feb 10, Report of Investigation, declassified and released 1 June 2016, https://theintercept.com/document/2016/06/01/gardez-foia/; Jeremy Scahill, “Pentagon: Special Ops Killing of Pregnant Afghan Women was “Appropriate” Use of Force,’ The Intercept, 1 June 2016, https://theintercept.com/2016/06/01/pentagon-special-ops-killing-of-pregnant-afghan-women-was-appropriate-use-of-force/. 477 AR 15-6 Investigation of Gardez District Paktya Province Operation, 12 Feb 10, Report of Investigation, declassified and released 1 June 2016, https://theintercept.com/document/2016/06/01/gardez-foia/. 478 Ibid. 479 Ibid. 159 management stages of the civilian harm response process in this case and assess the effectiveness of the response and compensation process undertaken for supporting US forces efforts to retain legitimacy following the incident. Reporting The first report of the incident came just as it began. Sayed Mohammed Mal, the Vice Chancellor of Gardez University, who was attending the party ‘called the police headquarters in Paktia as the raid was beginning because he believed the house was coming under attack from the Taliban.’480 Despite this report, police were not deployed to assist the family. Following the incident, a radioed report was made by the Special Forces unit involved within ten to fifteen minutes of the incident through internal Chain of Command radio communication mechanisms.481 These initial reports documented that ‘two militants’ were killed in action, while the Special Forces unit had made the ‘gruesome discovery’ of three women bound and gagged in a purported ‘honour killing’ which were reported publicly in two NATO press releases shortly after the incident.482 However, the information relayed in these reports were likely based on faulty understandings of cultural customs, particularly regarding the deaths of the three women in the residence.483 During this communication, the American Special Forces unit involved requested the presence of an investigation team at their location to undertake evidence collection. Yet, as the media began to report on the story documented in the NATO press releases, Afghan investigators who had arrived on the scene as well as survivors of the incident began coming forward, telling a very different account of events from that of the Special Forces unit. In parallel, Jerome Starkey’s investigative reporting on the incident gained traction upon release. Having interviewed both survivors and the Afghan investigators that undertook the evidence collection, he ‘immediately realized NATO’s story (regarding the honour killings) was likely false.’484 480 Jeremy Scahill, “Pentagon: Special Ops Killing of Pregnant Afghan Women was “Appropriate” Use of Force,’ The Intercept, 1 June 2016, https://theintercept.com/2016/06/01/pentagon-special-ops-killing-of-pregnant-afghan-women-was-appropriate-use-of-force/. 481 AR 15-6 Investigation of Gardez District Paktya Province Operation, 12 Feb 10, Report of Investigation, declassified and released 1 June 2016, https://theintercept.com/document/2016/06/01/gardez-foia/. 482 Jeremy Scahill, “Pentagon: Special Ops Killing of Pregnant Afghan Women was “Appropriate” Use of Force,’ The Intercept, 1 June 2016, https://theintercept.com/2016/06/01/pentagon-special-ops-killing-of-pregnant-afghan-women-was-appropriate-use-of-force/. 483 Ibid, AR 15-6 Investigation of Gardez District Paktya Province Operation, 12 Feb 10, Report of Investigation, declassified and released 1 June 2016, https://theintercept.com/document/2016/06/01/gardez-foia/. 484 Jerome Starkey, ‘NATO ‘covered up’ botched night raid in Afghanistan that killed five’ The Times, March 13, 2010, https://www.thetimes.co.uk/article/nato-covered-up-botched-night-raid-in-afghanistan-that-killed-five-fc9n5g92gbj. 160 Despite the immediacy of the initial internal report and the presence of investigators on the scene shortly after the incident, no direct reporting mechanism was made available to survivors or witnesses. Although witnesses note they tried to find other avenues to submit a claim, particularly due to their extensive connections in the government and police, they were ultimately unable to do so.485 In particular, they noted the substantial barriers to access they faced as key factors. They had considered traveling to the closest ISAF base– a Provincial Reconstruction Team headquarters in the region. However, due to the complex security situation in Paktia province at the time of the incident the family noted that traveling there in the immediate aftermath of the incident posed ‘danger to [them]’ due to the unpredictable operations of Taliban militants in the area and the family’s deep connections within the ANP and government.486 With this in mind, it was not until the findings from the MOI report and the release of Jerome Starkey’s reporting on the incident that ISAF headquarters staff, including Command Staff, indicated their awareness of alternate accounts of the incident. While internal reporting had been required and enacted as part of the operations communication process, little was done to assess the veracity of the accounts reported by the Special Forces unit involved. Further, safeguarding the survivors and witnesses of the incident became a significant concern that was largely overlooked by both ISAF and the Afghan MOI in the aftermath of the incident. Even as evidence increasingly pointed to the Sharabuddin family having no demonstrable connections to Taliban militants, survivors and witnesses expressed their concerns that they had been ‘labelled’ in this way by the incident and the Coalition’s media releases, ultimately putting their safety in jeopardy from both the local community and pro-government forces, as well as Taliban militants, themselves.487 However, despite providing statements and having identifying information about family members and their home’s location published in Coalition documentation and the international media, according to survivors and witnesses interviewed for this study, no protections were provided to them in the aftermath of the incident.488 Based on these experiences, survivors and witnesses interviewed noted that they perceived the reporting 485 Witness 1A (name withheld). Interview with author 07/10/2020. 486 Ibid. 487 Ibid. 488 Witness 1D (name withheld). Interview with author, 08/10/2020; Jeremy Scahill, “Pentagon: Special Ops Killing of Pregnant Afghan Women was “Appropriate” Use of Force,’ The Intercept, 1 June 2016, https://theintercept.com/2016/06/01/pentagon-special-ops-killing-of-pregnant-afghan-women-was-appropriate-use-of-force/. 161 process for this incident to be unfair, inaccessible, and opaque.489 Although investigators entered the home and collected evidence in the aftermath of the incident, interviewees noted that no information was provided to them concerning how they might be provided additional information, who to contact for updates, or what happened next in the process.490 This experience left the survivors and witnesses with a perception that key factors of the reporting process were left unfulfilled, influencing their perceptions of American forces procedural and performance based legitimacy. They further noted deep feelings of resentment, particularly when their safety was threatened due to identification as Taliban militants.491 Initial Assessment As was common in 2010 following civilian harm incidents in Afghanistan, evidence collection often occurred immediately after a civilian harm incident. In this case, a joint American and Afghan assessment was initiated at the site of the incident within two hours of the event. Led by Afghan investigators from both the Afghan National Army (ANA) and the Afghan National Police (ANP) with support from U.S. military personnel, the initial assessment undertook evidence collection at the scene, including photographing the victims, accounting for damage to the property, and taking witness statements from survivors and witnesses. In the immediate aftermath of the incident, extensive photos were taken of the scene including those in Figure 4.2 below. Over 100 photographs of the scene were declassified and released in the FOIA documentation received by The Intercept. Figure 4.2: A selection of photographs from Post-Event Initial Assessment and Evidence Collection in Sharabuddin case492 489 Witness A and B (name withheld). Interview with author, 07/10/2020. 490 Ibid. 491 Ibid. 492 Images included in AR 15-6 Investigation of Gardez District Paktya Province Operation, 12 Feb 10, Report of Investigation, declassified and released 1 June 2016. https://theintercept.com/document/2016/06/01/gardez-foia/. 162 Despite the ongoing collection of evidence, the family immediately began attending to those who had been killed and wounded. In line with Islamic custom, the dead needed to be prepared for burial immediately after their deaths. The preparations included binding the feet and head with wraps, as well as placing a tied scarf around the head of the deceased to ‘keep the mouth of the deceased from hanging open.’493 As this was happening, several witnesses and Afghan investigators reported witnessing ISAF personnel ‘digging bullets out of the women’s bodies,’ with one witness reporting ‘they were taking out the bullets from their bodies to remove the proof of their crime.’494 Shortly thereafter, the men and women who remained in the home were separated, with the men being handcuffed and taken to a separate room. Eight of the men were identified for further questioning and were transported by helicopter to a US military based in Paktika, another province.495 Several men who were interrogated reported being bound and blindfolded, denied food and water, or any opportunity to clean themselves despite several still being covered in blood.496 One of the men detained reported being questioned about their family’s connections to the Taliban, emphasizing ‘that [they were] against the Taliban, had fought the Taliban, and that some relatives had been kidnapped by the Taliban…we told them truthfully that there were not Taliban in our home.’497 In separate interviews, one of the men noted to Starkey and Scahill that their interrogators had detained and questioned them based on ‘intelligence that a suicide bomber had hidden in [their] house.’498 However, interviewees 493 Jeremy Scahill, “Pentagon: Special Ops Killing of Pregnant Afghan Women was “Appropriate” Use of Force,’ The Intercept, 1 June 2016, https://theintercept.com/2016/06/01/pentagon-special-ops-killing-of-pregnant-afghan-women-was-appropriate-use-of-force/. 494 Ibid. 495 Ibid. 496 Witness A and B (name withheld). Interview with author, 07/10/2020; Jeremy Scahill, “Pentagon: Special Ops Killing of Pregnant Afghan Women was “Appropriate” Use of Force,’ The Intercept, 1 June 2016, https://theintercept.com/2016/06/01/pentagon-special-ops-killing-of-pregnant-afghan-women-was-appropriate-use-of-force/. 497 Ibid. 498 Jeremy Scahill, “Pentagon: Special Ops Killing of Pregnant Afghan Women was “Appropriate” Use of Force,’ The Intercept, 1 June 2016, https://theintercept.com/2016/06/01/pentagon-special-ops-killing-of-pregnant-afghan-women-was-appropriate-use-of-force/. 163 emphasized repeatedly that the majority of people in attendance at the party were government employees and their families.499 To their knowledge, there had never been a member of the Taliban in their home. After three days of detention, the men were returned home. However, due to the customs of Islamic burial, after several days of interrogation, when the men were returned their relatives who had been killed in the raid had already been buried.500 The evidence collected from the scene and the interrogations were utilized both in the initial assessment of the incident undertaken by US forces and the Afghan MOI. While the initial assessment undertaken by the US forces has not been released, testimony from Afghan investigators present at the scene notes that the evidence collected was included in the assessment report and brief provided by Lieutenant General Yarmand to ISAF Commander, General McChrystal.501 Based on these statements and the ISAF documentation, an investigation was authorized, however no information regarding the content of these initial assessments, including its processes or findings, was provided to the survivors and eyewitnesses.502 The analysis provided below provides an overview of the perceptions of survivors and eyewitnesses on the importance, influence, fulfilment of key factors regarding the initial assessment phase. When considering the first factor category, all interviewees noted a distinct lack of clarity as to the next steps that would be taken by the Afghan and Coalition teams that had been in their compound. While investigators had been on the scene and undertaken extensive evidence collection, according to the interviewees, no information was provided to the survivors and witnesses regarding how the evidence would be used, assessed, or what processes would be enacted. Notably, several respondents noted they gave witness statements to both the Afghan and American investigators on the scene and during interrogations in Paktika province.503 However there is no evidence within the declassified documentation to suggest that their accounts of the incident were considered seriously until the formal investigation was ordered in April 2010. It is clear an assessment was undertaken for this civilian harm case, though the details have not been made public. In this case, the evidence collection undertaken by Afghan and US investigators 499 Witness 1A (name withheld). Interview with author, 07/10/2020. 500 Ibid. 501 Interview with Afghan investigator (name withheld). Interview with author, 11/14/2017. 502 AR 15-6 Investigation of Gardez District Paktya Province Operation, 12 February 10, declassified and released 1 June 2016. 503 Witness 1A and 1B (names withheld). Interview with author, 07/10/2020. 164 and the two preliminary investigations by a redacted source and the Afghan Ministry of Interior served the purpose of an initial assessment.504 These assessments seem to have provided enough evidence to cast reasonable doubt on the reports of the incident provided by the Special Forces unit through internal mechanisms to warrant a formal investigation to be ordered by General Stanley McChrystal, then Commander of ISAF. In a series of interviews with American military personnel familiar with this incident, one interviewee noted that, At the time of the reports, we had no reason to doubt the reports coming in from the incident scene. They were live reports from radio comm[unication]s. During those communications, they noted two male EKIA [enemy killed in action], one wounded, and recounted in real time seeing the bodies of the women. I would suggest their true belief was what they reported back– that they had not killed the women but were mistaken based on the short time in which the women were wrapped up.505 The other interviewee was candid in their critique of the response. ‘We missed things. I don’t believe we were intentionally misled, there’s nothing to indicate that. But given the differing accounts of the incident, I would think we had blinders on due to the intelligence we had about the compound. We could have investigated sooner; all the evidence was there from what I can tell.’506 Interviews with witnesses note that the lack of contact or communication during the period between the incident and the formal investigation was a significant factor in growing resentment of American and ISAF forces in the wake of the incident. One witness noted, they killed our [loved one] and then left us to bury them. They took our [men] to be interrogated– they were absent from the funerals because of the Americans. Then they ignored us. We tried to provide them with evidence of what had happened, we tried to contact [them]. We did not hear [from them].507 During this time, unbeknownst to the survivors, family, and witnesses, a classified investigation of the incident had taken place, beginning on 13 February 2010, and concluding 1 March 2010.508 Two months later, following General McChrystal’s review of both the investigation 504 Based on contextual clues in the documentation, it is expected that the redacted source refers to the Joint Special Operations Command (JSOC) which held command responsibility for the Special Forces Unit involved in this incident. 505 Former US Army personnel 1A (name withheld). Interview with author, 03/12/2020. 506 Former US Army personnel 1B (name withheld). Interview with author, 11/09/2020. 507 Witness 1A (name withheld). Interview with author, 07/10/2020. 508 See AR 15-6 Investigation of Gardez District Paktya Province Operation, 12 February 10, declassified and released 1 June 2016. 165 report from the redacted source (expected to be JSOC) and the Afghan MOI, the incident was referred to a competent internal authority for a second formal investigation. This investigation was opened, with an Investigating Officer appointed to spearhead the investigation in early April 2010. At the time of the appointment, both the Afghan MOI and survivors and eyewitnesses were contacted in order to arrange further evidence collection and opportunities for engagement. Investigation Based on declassified materials obtained through FOIA requests by The Intercept, a formal investigation by the redacted source (thought to be the JSOC) was begun two days after the incident, on 13 February 2010.509 This investigation was completed on 1 March 2010 and focused primarily on internal sources familiar or involved in the incident. At the start of the report, it was noted by the Investigating Officer that there was a significant lack of ‘investigative procedure’ present in the investigation due to the inaccessibility of key elements of the ANSF, GIRoA officials and Khataba village inhabitants during the time of the investigation and this ‘contributed to an inconclusive finding’ particularly ‘in determining the deaths of the three females.’510 However, it notes that a plausible cause in the deaths of the three [LN] females could have been a shoot through from lethal fires applied by the Assault Force [AF] against Zahir. But if this did occur there was no intention to engage anyone except for Zahir who had demonstrated hostile intent by arming himself, and then a hostile act by pointing the AK-47 at both US Soldiers.511 Significant corroborating evidence of this explanation was documented in the investigation, including multiple witness statements supporting this theory. They note that multiple witnesses described the incident and that ‘guests feared they were being attacked by the TB [Taliban] as retribution for drinking wine, playing music, their Tajik ethnicity, and for being guests of an ANP commander.’512 Witnesses said this is what motivated Daoud to arm himself before entering the courtyard, in order to defend his family and guests from a Taliban attack.513 The Investigating Officer also points to further evidence to support this theory from other witnesses, noting that one witness stated the women were killed while trying to ‘prevent Zahir from exiting 509 Ibid. 510 Ibid. 511 Ibid. 512 Ibid 513 Ibid. 166 the building to take badal (revenge) for the death of his brother’ against what he thought was the Taliban.514 This thinking was further corroborated by ‘consistency in all eight detainees’ statements that would be impossible to pre-plan without prior knowledge of the specifics of the operation’ and echoed previously collected audio transcript of ‘unwitting compound inhabitants recorded during the BHO (Battle Handover) and while compound residents were in building 35, room A.515 Despite ample corroborating documentation that the three female victims had died as a result of a ‘shoot through’ incident, the report concluded that ‘it is unlikely that the lethal engagement of Zahir resulted in the shoot thru of the three LN females’ and that the findings in this regard were ‘inconclusive.’516 A second formal investigation of this incident began on 7 April 2010 with the appointment of the Investigating Officer.517 Investigation activities formally commenced at Bagram Airfield in Afghanistan on 9 April 2010.518 At the outset of the resulting Report of Investigation (ROI) he Investigation Order states that this investigation differs from the initial investigation undertaken by the redacted source. Instead, the second investigation ‘focus[es] on two issues: first, whether the ground force deliberately misled their higher headquarters in initial reports regarding the incident; and second, whether the ground force attempted to hide the circumstances surrounding the casualties by altering, tampering with, and/or cleaning up the incident scene.’519 Notably, it tasks the Investigating Officer with this investigation as their ‘primary mission until [they] tender [their] completed findings and recommendations to the commander, no later than 15 days from the date you receive this order’ indicating Coalition forces were aware of the requirement for timeliness in the investigation of civilian harm incidents.520 The Investigating Officer began their investigation internally, reviewing the previous assessment or investigation undertaken by the redacted source, preparing an investigation plan, and requesting additional documentation. Between 12 April 2010 and 21 April 2010, all evidence collection and analysis were completed. This included conducting in person interviews with 514 Ibid. 515 Ibid. 516 Ibid. 517 Ibid. 518 Ibid. 519 Ibid. 520 Ibid. 167 ISAF, ANA, and ANP personnel and leadership, external witnesses to the incident, including family members and attendees at the party, and a review of pertinent documentation including, ‘JOC procedures and events,’ prior investigation materials, ‘mission clearance procedures’, ‘ISR feed and Comms feed,’ ISR sound/footage, mIRC chat, SATCOM recordings,’ ‘sworn statements,’ and ‘JOC logs and timelines.’521 The IO found the following, based on available evidence. On 11 February 2010 at a redacted time an assault occurred on the Sharabuddin compound in Gardez District in the Paktia province. ‘Two armed males were found on target and killed in the courtyard. Three women were discovered during clearance of structure (#34)’ but these women were never seen during the assault and no members of the Special Forces unit intentionally ‘engaged’ them.522 In the aftermath of the incident, during clearance of the structure, the ‘focus of the operation then became determining how the three women had been killed.’523 The investigation concluded based on an assessment of the available evidence that a ‘lack of cultural awareness led the Assault Force to conclude these women had been killed by someone else…initial inspection of the bodies suggested that they had been dead over several hours’ and that this lead to the ‘false conclusion that the women had been murdered’ by others in line with a cultural custom of honour killings.524 However, it was later noted that ‘it is probable that the family prepared the bodies for funeral in accordance with the local custom.’525 They noted the drastically different conclusions reached regarding the incident between American and Afghan investigators, noting there was a ‘time lag’ between American investigators, who arrived on the scene first, and Afghan investigators, who arrived while American investigators were still present, but ‘after the Assault Force had left the area.526 Based on this, but despite the multiple witness statements in the previous investigation, the second investigation dismissed the allegations that American investigators had dug bullets from the women’s bodies. It further noted that the investigation found no attempt to hide or cover up the circumstances of the local national women’s deaths. However, later in the investigation report, when addressing the question of whether anyone altered, cleaned, or otherwise tampered 521 Ibid. 522 Ibid. 523 Ibid. 524 Ibid. 525 Ibid. 526 Ibid. 168 with the scene in any way following the operation, the IO’s response was redacted in its entirety, preventing further analysis.527 The primary recommendation that resulted from this investigation was that ‘no member of the assault force receives disciplinary action beyond that recommended in the initial investigation.’528 However, it is important to note, the IO makes a particular limiting factor of the second investigation clear. They note that After weighing the potential benefits of visiting the scene of the incident, such as being able to see the locations of the shooter, layout of the courtyard/entrance to Room 1A/interior of Room 1A, speaking with witnesses who could describe what they saw in context, etc., against the drawbacks, such as re-awakening emotional and political turmoil which had, at the least, abated somewhat since the operation, I determined the amount of information that could be useful to this investigation was not worth the cost. Therefore, I decided against a visit to the scene of the incident, instead asking the family members to travel to the PRT in Pakty[i]a to meet with us.529 Thus, some findings of the report may be inconclusive based on the inaccessibility of all witnesses (particularly women, who did not travel to the PRT in Paktia) and the IO’s lack of observation at the site of the incident itself. When interviewed during this study, four survivors and witnesses provided their perceptions on key factors identified as important and influential in their perception of the investigation process’ effectiveness in this case. One interviewee highlighted that they felt that the investigation itself was not impartial due to its internal nature and were disappointed that the findings were not released publicly in full, nor was a criminal investigation or disciplinary action recommended.530 Another interviewee noted that while it seems an investigation was carried out promptly (initiating on 13 February 2010) no information regarding this investigation was shared with the survivors, family, or witnesses at the time, giving the perception no action was being taken.531 Others noted the perceived lack of investigation or communication surrounding it was a key motivation for the demonstrations they undertook at the provincial headquarters of the ANP, noting that ‘if they spoke with us perhaps we may have done differently.’532 527 Ibid 528 Ibid. Despite the second investigation alluding to some disciplinary action recommended for members of the Assault Force, specifics regarding this were redacted in the initial investigation documentation. 529 Ibid. 530 Witness 1C (name withheld). Interview with author, 08/10/2020. 531 Witness 1D (name withheld). Interview with author, 08/10/2020. 532 Witness 1A (name withheld). Interview with author, 07/10/2020. 169 Further, two interviewees noted that although several Key Leader Engagements (KLE) occurred around the compound and surrounding area with local elders and officials, no site visits were conducted at the compound as part of the investigations.533 Although the second investigation report points to risk of awakening social and political tensions in the area if site visits were undertaken, two witnesses interviewed as part of this study said this would have helped to quell existing tensions alongside the ongoing KLEs in the areas as ‘rather than just talking, we wanted to know they were doing something.’534 This breakdown in communication with the survivors and immediate family was a significant source of local animosity towards Coalition. While it was known that local elders, and representatives from the local police, ANA, and government were engaged in several KLEs in the area, at times family members were excluded from these settings. One interviewee noted a particular disparity in the attention paid to survivors and the family in comparison to local elements of the police force. He noted, ‘[t]hey are not worried about us. But the police–big problem for them. The [police] are angry because it was Daoud and the Americans are worried about the partnership, not us.’535 However, despite this testimony, one interviewee noted that the investigation itself was not their priority in the aftermath of the incident. ‘[W]e were there, we did not need them to tell us what had happened. We had [seen] with our eyes. We only wanted the investigation with [the] hope it would lead to justice for our family and the people responsible would be punished.’536 Another interviewee said, ‘I watched my brother die. I don’t want papers, I want punishment. He was a good person, a good friend to the Americans.’537 In key informant interviews with local authorities, members of the ANP noted the push for the investigations came from them. We wanted to understand why we had not been informed of the planned raid previously, as we usually were. We also wanted to know why Daoud’s home had been the target, as he was a well-known person and ANP member at this time. Many Americans knew him, he had taken many American courses and had many friends in the American military.538 533 Witness 1C (name withheld). Interview with author, 08/10/2020; Witness 1D (name withheld). Interview with author, 08/10/2020. 534 Ibid. 535 Witness 1A (name withheld). Interview with author, 07/10/2020. 536 Witness 1C (name withheld). Interview with author, 08/10/2020. 537 Witness 1D (name withheld). Interview with author, 08/10/2020. 538 ANP officer (name withheld). Interview with author, 12/01/2021. 170 The answers to these questions remain redacted in the declassified records however, unredacted sections of the first investigation report document the differences in perceptions of the investigation amongst the survivors and family in comparison to ANP officials and local governments. In a concluding section, the IO notes, The investigation has not had a major information operations (IO) impact with the populace, but it has had a positive effect on Coalition Forces (CF) relationship with Afghan National Security Forces (ANSF) in the province. Coalition officials met with Pakty[i]a Deputy Chief Brigadier General Destigeer about information needed in pursuit of the investigation and was well-received by him. He said he was glad the investigation was taking place to ensure something like this does not happen again and for future success in partnered operations.539 These procedural priorities seem to have influenced the findings of the second investigation, which makes extensive redacted recommendations with regards to future process and procedure to avoid similar incidents. However, as the focus of survivors and witnesses was set on securing justice, such recommendations, which fell short of suggesting any disciplinary action or criminal charges, contributed to perceptions of bias, avoidance of responsibility, and lack of transparency in the investigatory process. Consequence Management, Compensation and Amends Consequence management techniques were prioritized in the aftermath of the incident, with a particular emphasis on KLEs– meetings which brought together local authorities and often elders alongside ISAF Joint Command Personnel. In the immediate aftermath of the incident, key members of the Assault Force were kept at the scene to participate in a KLE, which was held in the hours after the incident between the Battle Space Owner (BSO– thought to be the JSOC), the Deputy Governor of Paktia, the local ANP Chief, and the Ground Forces Commander (GFC).540 During this engagement, ‘the GFC walked the GIRoA (Government of the Islamic Republic of Afghanistan) officials through his team’s actions on the objective, explaining what actions they had taken and what they had found at the scene.’541 In the hours that followed the first KLE and information about the assault spread, tensions flared amongst the local community. Multiple demonstrations by villagers from the surrounding area were conducted ‘in the vicinity of the 539 AR 15-6 Investigation of Gardez District Paktya Province Operation, 12 February 10, declassified and released 1 June 2016. 540 AR 15-6 Investigation of Gardez District Paktya Province Operation, 12 February 10, declassified and released 1 June 2016. 541 Ibid. 171 provincial police headquarters.’542 The crowds chanted anti-American slogans and demanded justice and the release of the eight detainees. Although the investigations recognized that this first KLE ‘did not dissuade local national resentment’ it does note that it was ‘critical to consequence management’ as it ‘did create an environment of transparency with Coalition Forces’ including local elements of the ANA and ANP.543 Following these demonstrations on 12 February 2010, village elders held a shura with MoI officials including Lieutenant General Yarmand, provincial ANP representatives, provincial government officials, and ISAF Joint Command (IJC) personnel. The ‘village elders’ demands included the release of the eight detainees, ISAF acceptance of responsibility for the civilian casualties, and punishment of the “informant/agent” responsible for the faulty intelligence.544 During this shura, local villagers noted they would not engage in further demonstrations or unrest and ISAF officials noted they would conduct a full investigation, which was opened the following day.545 A third KLE was held during the detainee release at US Forward Operating Base Gardez, again with Lieutenant General Yarmand, as well as a Member of Afghan Parliament, Major General Fatah of the ANP, and a Brigadier General Bowes. These government officials and Coalition Forces personnel met ‘before the detainee transfer, and GIRoA delivered the detainees to their families at the Regional Training Centre, which was well received throughout the province.’546 The final KLE occurred on 18 February 2010, with ANA and ANP officials explaining the efforts and mitigation strategies that had been undertaken to quell the tensions in the areas and provided updates on the ‘atmospherics’ (general sentiments) of the village, as well as the way ahead. However, despite robust engagement with partner forces and GIRoA officials in the aftermath of the incident, the investigation noted that there was limited engagement with the survivors and family directly after the detainees were taken. No information regarding what would be done with the evidence collected, how ISAF would communicate with the family regarding the 542 Ibid. 543 Ibid. 544 Ibid. 545 Ibid. 546 Ibid. 172 incident, how to make a report or file a claim was provided. Further, beyond the provision of ‘Key Leader Engagement receipts’ documenting items found, damaged, or taken by ISAF forces during the raid which were provided to the ‘residence’s elder, identified elsewhere to be Hajji Sharabuddin, no further direct communication with family members was undertaken.547 The Key Leader Engagement receipts documenting the items taken by ISAF forces or damaged in the raid can be found in Figure 4.3 below. Figure 4.3: Images of Key Leader Engagement Receipts provided to Hajji Sharabuddin548 This limited direct engagement with survivors and family members of the deceased caused witnesses to note significant friction and resentment amongst the family against Coalition Forces. According to one interviewee, it seemed that the Coalition’s approach to the KLEs along with the recommendations of the investigation had placed strategic interests and partnerships ahead of the needs of the survivors and family. They were concerned about losing their influence in the area. While no one would speak to us, we heard updates from Daoud’s friends in the police that the investigation had completed and ANP officials and the Governor’s office were negotiating with the Americans. Negotiating what? None of them were harmed. At this time, we lost trust.549 Although acknowledgement of the harm caused has occurred, and condolence have been offered (explored in further detail below), these sentiments were significant determinants of the effectiveness of the consequence management, compensation, and amends process in the minds of the survivors and families interviewed. 547 Ibid. 548 Ibid. 549 Witness 1C (name withheld). Interview with author, 08/10/2020. 173 Despite the investigation’s findings that Coalition forces had caused the deaths of Daoud and Tahir and likely caused the deaths of the three women, the IOs of both investigations noted that while the ‘most likely cause of the incident is “shoot throughs” during the second engagement but maintain the results are inconclusive…the doubt is enough that I do not recommend accepting responsibility for the deaths of the three females.’550 Thus, in the aftermath of the incident, no acknowledgement of any wrongdoing was provided to the family by Coalition forces, as the killing of Daoud and Tahir were considered by the IO to be justified based on their demonstrated hostile intent and action resulting from them arming themselves. This lack of acknowledgement angered family members who viewed the entire operation as ill-founded, particularly given the governmental associations of both Daoud and Tahir. Regarding transparency and communication during the compensation and amends process, at this time, although it was common for leaflets regarding compensation claims to be provided in the aftermath of a civilian harm incident, none were given to the Sharabuddin family.551 Thus, there was no clarity around how to pursue or file a claim with Coalition forces, with the family approaching the issue of compensation informally through ANP intermediaries instead. As the initial investigation notes, During a meeting before the detainee transfer, the father [of Daoud] was persuaded by Major General Fatah (ANP Zone 2 Commander to accept some money Fatah said was Dawood [Daoud]’s last wages. Shortly thereafter during the final KLE Brigadier Wardak and Major General Fatah mentioned or suggested a condolence payment but did not suggest an amount.552 It notes further that ‘as of 19 February 2010, CF have offered no payments to the family.’ However, the investigating officer notes, regardless of their determination of case facts, that they believe that the locals are convinced and will remain convinced despite any additional empirical or witness derived evidence that the assault force killed the women. Therefore, I recommend that CF make an appropriate condolence payment to the family as a sign of 550 AR 15-6 Investigation of Gardez District Paktya Province Operation, 12 February 10, declassified and released 1 June 2016. 551 Witness 1A (name withheld). Interview with author, 07/10/2020. 552 Ibid. 174 good faith in our sincerity at the seriousness of the incident, and our hope to move past this incident and build trust with the local populace.553 Following this recommendation, Vice Admiral William McRaven, the Commander of the JSOC at the time, visited the compound in Gardez on 8 August 2010, six months after the incident (depicted in Figure 4.4 below). According to reports, he made an offer to the family to sacrifice a sheep, which his force had brought with them on a truck to ask forgiveness.554 During this meeting condolence payments of $2,000 USD were offered per victim, with some members of the family accepting these offers while others refused them. Figure 4.4: Photograph of engagement between the Sharabuddin family and Vice Admiral William McRaven, 8 August 2010555 While interviewees noted that they appreciated the effort McRaven and his team put into making the visit and request for forgiveness culturally appropriate, this did not do much to dampen their resentment.556 As one interviewee noted, ‘they made a big show. The Commander came here and showed us a lamb to sacrifice, a good gesture here. He asked for forgiveness, but how could we give [it]?’557 Another interviewee spoke about the amount of the payment that was offered. ‘The Commander, he offered us money, but it is so little. Daoud and Tahir they had good [jobs], our wives, they were loved. We loved them. It was so little; it would not help. I felt they thought they were worth so little.’558 Although it is reported that McRaven then asked what they would 553 AR 15-6 Investigation of Gardez District Paktya Province Operation, 12 February 10, declassified and released 1 June 2016. 554 Ibid. 555 Jeremy Scahill, “Pentagon: Special Ops Killing of Pregnant Afghan Women was “Appropriate” Use of Force,’ The Intercept, 1 June 2016, https://theintercept.com/2016/06/01/pentagon-special-ops-killing-of-pregnant-afghan-women-was-appropriate-use-of-force/. 556 Witness 1A (name withheld). Interview with author, 07/10/2020. 557 Ibid. 558 Witness 1C (name withheld). Interview with author, 08/10/2020. 175 consider an appropriate amount, most family members refused to engage in the conversation regarding condolence payments any further. In the aftermath of these interactions, resentment against American forces amongst the family seems to have only grown. As Jeremy Scahill writes, ‘months later, when I sat with the family elder Hajji Sharabuddin, at his home, his anger seemed to have hardened.’559 He recounts Sharabuddin saying I don’t accept their apology. I would not trade my sons for the whole kingdom of the United States. Initially, we were thinking that Americans were the friends of Afghans, but now we think that Americans themselves are terrorists. Americans are our enemy. They bring terror and destruction. Americans not only destroyed my house, they destroyed my family. The Americans unleashed the Special Forces on us. These Special Forces, with the long beards, did cruel, criminal things.560 The father of one of the women killed, was also interviewed by Scahill, noting ‘We call the [Special Forces] the American Taliban.’561 When witnesses were interviewed for this study, similar sentiments were still evident ten years later. One interviewee noted, ‘when they offered the payments, it is as if they did not think they were humans. That they could be replaced with money or that money would help us. No. We would do anything to have our family whole.’562 Another interviewee noted their continued anger at the Coalition Forces, [w]e are struggling here. Psychologically we are broken, but there are many people now without a father, grandfather, or mother. They are suffering. People that were here when it happened have nightmares. Our children cry very much still. Some of the children are angry what happened to their mothers. I am angry they imposed this suffering on us. There is enough hardship here already. Without Daoud and Tahir, it is difficult. Without our wives, it is difficult. What they have offered us is not what we need. They are terrorists. They terrorized our family. All we did was support them. I do not now. I hate them. While the offer of compensation and amends provided by Vice Admiral McRaven was accompanied by an expression of regret, other witnesses took issue with the request for forgiveness. As one witness noted, ‘there is nothing that could make me forgive. It is not 559 Jeremy Scahill, “Pentagon: Special Ops Killing of Pregnant Afghan Women was “Appropriate” Use of Force,’ The Intercept, 1 June 2016, https://theintercept.com/2016/06/01/pentagon-special-ops-killing-of-pregnant-afghan-women-was-appropriate-use-of-force/. 560 Ibid. 561 Ibid. 562 Witness 1D (name withheld). Interview with author, 08/10/2020. 176 deserved.’563 Some family members did accept the payments that were offered, indicating the funds were vital to them navigating a new situation without the wages previously garnered by Daoud and Tahir, who were well paid in their fields. They noted these funds helped to offset immediate expenses in the aftermath of their deaths, but it did not quell their anger or resentment and the low amount of funds meant the money ran dry quite quickly. Assessment of Effectiveness Based on the analysis and evidence gathered through the case study, in this case post-harm compensation and amends processes indicate partial effectiveness in contributing to the counterinsurgency aims to maintain legitimacy in the aftermath of civilian harm incidents. The evidence shows some areas of strength in the execution of the post-harm response process and additional areas where civilian expectations were not met, resulting in a shift in survivor, family, and community perceptions of Coalition legitimacy. The diagram in Figure 4.5 below provides a visual mapping of this case to the theory of effectiveness being evaluated in this study. Figure 4.5: Visual Mapping of Sharabuddin case to Theory of Effectiveness 563 Ibid. 177 Evaluating the factor categories in this case, several factors yielded negative perceptions of the Coalition’s legitimacy, in particular the lack of clarity and transparency during the reporting process and significant barriers to access reporting sites. This was a particularly important and influential factor in this case due to the initial public reporting regarding what had occurred, the affiliations of the family, and the release of inaccurate information in NATO press releases. The witnesses interviewed noted [w]e sought to make a report ourselves so there would be an investigation. We wanted to ensure our names were cleared. But it was not easy, they did not tell us how, or who to speak to. We were advised to go to the American base (the PRT Headquarters) but this was dangerous because we had been labelled as Taliban but also so many of our family work for the government.564 During the initial assessment and investigation period they noted, ‘in the beginning we were glad there was an investigation to find the truth’ but also said ‘our experience of the investigation was bad, they took many of our brothers for questioning and treated them very badly. Other than this, they did not ask us any questions or for our experience.’565 Further issues with the investigation 564 Witness 1C (name withheld). Interview with author, 08/10/2020. 565 Ibid. 178 process were flagged, with affected civilians noting they were not kept informed on the progress or timelines. One individual interviewed as part of this study noted they did not find out about the findings of the investigation until they were reported in the media. When they were released, the family was disappointed and offended by the implications, with the investigation still noting the presence of Taliban fighters and weaponry in their home. Further, several witnesses seemed to equate this lack of transparency with the involvement of Special Forces in the incident, repeatedly referencing that these units ‘work in the shadows’ and ‘they come commit terrible crimes and disappear’ with no accountability.566 However, as expressed consistently by survivors and witnesses interviewed, the family’s priority in the response process was to seek acknowledgement, justice and accountability from the US forces involved. In this regard, while the American forces scored well in terms of their fulfilment of key factors including acknowledgement, cultural appropriateness, and the offer of compensation, scores were considerably lower when considering the amount and timeliness of compensation and the view of loss factors. Witnesses noted the amends process and offer of compensation did not account for the wide-ranging loss they felt including the psychological implications for the family and the economic implications the loss of Daoud and Tahir had on their financial wellbeing.567 Additionally, they noted it took a very long time, particularly as the American forces involved had not engaged with them directly in the intervening months since the detainee release was completed. The family noted in this intervening time without contact, much of the process seemed to focus less on their needs and considerably more on the potential strategic costs that could have resulted from Daoud’s death as a high-ranking member of the ANP. Their perception was that American forces prioritized having KLEs with local security forces and government officials, rather than meeting the needs of the family. Finally, reflecting on the visit of Vice Admiral McRaven, witnesses note this event as partially effective. They noted a sense of surprise that McRaven would be coming, and were particularly heartened that their demand that US Special Forces acknowledge the harm they caused to the family was fulfilled.568 They also noted that the offer of a sheep was culturally appropriate in 566 Witness 1D (name withheld). Interview with author, 08/10/2020. 567 Witness 1C (name withheld). Interview with author, 08/10/2020. 568 Witness 1A (name withheld). Interview with author, 07/10/2020. 179 such circumstances and was a gesture particularly appreciated by the village elders.569 However, they felt the request for forgiveness voiced by McRaven was not welcome and that such acknowledgements of responsibility should not include these types of requests.570 Finally, when considering the compensation offer, witnesses felt it was too little, too late. While some funds were accepted, some witnesses refused on principle. Several witnesses noted that this mixed stance on compensation would likely have been different if the investigation had been more transparent, engagement with the family more robust, and compensation provided in a timelier manner.571 As indicated above, these factors had a significant impact on the family’s perceptions of American forces. Given the deep ties the Sharbuddin family had with the Afghan government, and Daoud’s particularly close ties to American forces, the shift in perceptions noted in this case is a rapid and significant change. Multiple witnesses noted that prior to this event they had viewed Americans positively and as ‘friends’ but now view them as equal perpetrators of harm, like the Taliban. Others called them ‘terrorists’ and ‘our enemy.’572 When asked how the experience of the civilian harm response process influenced their thoughts about the American forces, two witnesses noted that the treatment they received was almost as bad as the incident itself. ‘They treated us like animals. When we were detained, we were treated bad. Even after, they ignore us. Then they come ask for forgiveness, why should we give?’573 This incident indicates partial effectiveness. As the case study indicates stable relations with local government and security forces were restored in the aftermath of this event through robust consequence management approaches using a series of KLEs and shuras with key figures in the local area. However, while there were some strengths in the response process vis a vis the family, the barriers encountered during reporting, inaccurate information being released publicly, and the lack of transparency during the investigation negatively influenced their perception of the effectiveness of the compensation and amends process. 569 Ibid. 570 Ibid. 571 Witness 1A (name withheld). Interview with author, 07/10/2020; Witness 1C (name withheld). Interview with author, 08/10/2020; Witness 1D (name withheld). Interview with author, 08/10/2020. 572 Witness 1C (name withheld). Interview with author, 08/10/2020. 573 Witness 1C (name withheld). Interview with author, 08/10/2020; Witness 1D (name withheld). Interview with author, 08/10/2020. 180 4.5 The Kashkaki family, Surkh Rod, Nangarhar, 14 May 2010574 Just three months after the night raid on the Sharabuddin family compound in Paktia province, another night raid conducted by Coalition forces claimed the lives of nine civilians in the Surkh Rod district of Nangarhar province. Located amid acres of farmland, the Kashkaki family compound was a lively place. Not far from the city of Jalalabad, the Kashkakis lived in a multi-generational setting, with thirteen families and over 100 people sharing the space, including many small children and at least one infant at the time. The families were, for the most part, related to each other. Many were siblings, cousins, grandparents, aunts, and uncles and the ages ranged from several elderly men in their 70s and 80s to an infant of just six months old.575 In addition to these families, some farmers who worked the surrounding land and a few men employed as guards for the compound lived within its walls as well. While guarded compounds were not uncommon, it was an anomaly in this region. However, Asomeddin Kashkaki and his brother were drivers and car dealers and as the cars were parked outside the walls of the compound, they needed additional protection to prevent theft.576 However, this additional protection made little difference to the fate of the Kashkaki family in the early hours of 14 May 2010. Around 12:45 am when the entire compound had fallen silent in sleep, Zarmina Kashkaki was jolted awake by shouting. The farmers, whose rooms were closer to the compound gate, were screaming her brother’s name amid fits of gunfire. Amidst more shouting and gunfire, her brother ran outside with his gun to check what was happening, expecting that thieves were attempting to steal their cars. As Zarmina tells it, ‘When my brother Hafizuddin rushed outside we heard shooting–probably a single shot– but I don’t know– and then a big thud.’577 In the moments that followed Zarima and Hafizuddin’s wife ran towards the sound, finding her brother bleeding on the ground and began screaming for him to wake up. While the two women were tending to him, Zarima’s nephew, Habibuddin, ran outside, shouting for his father to call the police. The police confirmed receiving these calls and noted the family seemed to not know what 574 The content of this case study would not be possible without the assistance of several Amnesty International researchers and their work documenting this case. Their case materials and assistance in data collection for this case and others was invaluable. 575 Witness 2A (name withheld). Interview with author, 18/03/2021. 576 Witness 2C (name withheld). Interview with author, 15/03/2021. 577 Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 181 was happening or who was attacking their home. The police did not know either.578 As one witness present during the attack noted, ‘I didn’t know they were US forces; I just knew we were under attack.’579 In the chaos, Habibuddin ran to retrieve one of the cars from outside the gate and to take his uncle to the hospital. However, as Habibuddin exited the compound to retrieve the car, ‘we heard another big bang… [and then we heard] Habibuddin crying, saying, “dad, I’ve been hit.”580 In the moments after 16-year-old Habibuddin was shot, he crawled through the door of his parent’s bedroom. Habibuddin died moments later. In total, nine men and boys were killed in the night raid on the Kashkaki family compound, including 28 year old Hafizuddin Kashkaki and his 16 year old nephew Habibuddin Kashkaki, a forty year old guard named Gulalai, and 28 year old friend of Hafizuddin, Mohammed Yunus.581 One of the older farmers who lived on the compound closer to the gate where the altercation took place also died alongside four of his sons, including 16 year old Rasul Khan, 20 year old Zukruddin, 24 year old Shams ul Rahman, and 40 year old Shafi. In the moments following the raid, two witnesses allege that their first realization that the attackers were American forces came when the Special Forces unit entered the compound, beat, and threatened them. “They asked us to show them the rockets and weapons that they believed were hidden there…our hands were tied behind our backs, but we were beaten and pushed all the time with gun butts.”582 US forces deny this claim. While the Special Forces unit remained at the compound collecting evidence in the hours after the attack, the family notes they departed by helicopter while it was still dark outside.583 The next morning, survivors and witnesses decided to stage a protest. According to witnesses, the Kashkari family brought the bodies of those killed the previous night to the local administration offices to ‘prove it was our family killed, not Talibs.’584 The relatives protesting were joined by ‘hundreds of other supporters, while they ‘chanted anti-Karzai and anti-US slogans.’585 The 578 Ibid. 579 Ibid. 580 Ibid. 581 Ibid. 582 Ibid. 583 Witness 2C (name withheld). Interview with author, 15/03/2021. 584 Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 585 Ibid. 182 group began to move the protest onwards towards Jalalabad but were permitted from doing so by members of the Afghan National Army. Violence exploded between members of the family and the government forces, with the nephew of the farmer who had been killed in the previous night’s raid reportedly killed. In the days following the raid the Kashkaki family and the local police noted that the attack may have been undertaken due to a case of mistaken identity. Following the raid, several witnesses were questioned and detained, with interrogations focusing on the 24-year-old son of the farmer that had been killed in the raid, Shams ul Rahman. According to the witnesses interrogated by US forces, the questions that were asked regarding Shams ul Rahman focused on weapons and weapons transfers through insurgent networks in the region.586 In the days following the raid, US officials named the target of the raid as ‘Shamsuddin,’ noting this individual had been positively identified at the site and killed in action. However, the local police commander noted that he had no information regarding any insurgent associations with regards to Shams ul Rahman, but that there was a Taliban commander named Shamsuddin in the area who was still ‘alive and active’ following the raid.587 However, many points of the incident are sources of contention, with conflicting accounts between the recollections of the Kashkaki family and US troops. In the aftermath of the raid, it was found that multiple men, including Shams ul Rahman, his brother, and several members of the Kashkaki family were armed with automatic weapons.588 The family does not dispute this fact–it was common for families living in rural areas to arm themselves due to the risks insurgents and thieves posed in the area. US forces also noted their found ammunition vests and a mortar sight within the compound, the latter of which was interpreted to indicate insurgent activity, given the equipment only serves a military purpose. But the family was clear and consistent in their explanation– the ammunition vests were used by their armed guards while patrolling the compound at night due to their fleet of cars.589 The mortar sight was explained to 586 Witness 2A (name withheld). Interview with author, 18/03/2021; Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 587 Ibid. 588 Ibid. 589 Witness 2A (name withheld). Interview with author, 18/03/2021. 183 Amnesty International researchers by the family as an unused and non-functional piece of equipment that had been left in the third floor attic of one of the compound’s building’s for decades in a left over collection of old hardware from the fighting in the 1980s.590 In the months and years that have followed, the family has expressed resentment and anger not only about the raid itself, but also regarding how they were treated by authorities in the aftermath. Based on this, the following sections explore the aftermath of the incident including the civilian harm response and compensation process that followed across the reporting, initial assessment, investigation, and consequence management stages. Reporting, Initial Assessment, and Investigation While the incident received widespread attention from international media outlets and NGOs, at present, no evidence of a formal ISAF investigation exists. The family insists they were never visited by any members of the US forces or ISAF in the aftermath of the incident and have no knowledge of any investigation ever being opened into the incident.591 Given the lack of contact from ISAF in the aftermath of the incident, the Kashkakis note they tried to report the raid themselves, including to the Afghan Ministry of the Interior and the Ministry of Justice in the months following the incident. During meetings with Ministry officials, the family provided evidence and sought to open a case with each. However, both Ministries said there was nothing they could do as it was an incident involving ISAF forces, and suggested reaching out to the US forces directly, in particular the Provincial Reconstruction Team (PRT) active in the area.592 No Afghan government officials could help or accompany family members to the PRT headquarters for their security.593 As one witness told Amnesty International researchers, ‘We did everything we could to fight for justice, but we don’t even know if there was an investigation. We were left in the dark and we’re still in the dark.’594 The sections below provide the family perspectives on the reporting, initial assessment, and investigation process based on their experience. 590 Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 591 Witness 2A (name withheld). Interview with author, 18/03/2021. 592 Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 593 Ibid. 594 Ibid. 184 With regards to the first factor category, the Kashkaki family noted significant barriers to reporting the incident. Although American soldiers remained on the scene for some time after the incident, it is unclear if an internal report was made by them. After having heard nothing regarding an investigation into the incident, members of the family attempted to report the incident to both the Afghan MoI and MoJ, to no avail. They were unable to travel to the PRT headquarters in the region due to the danger posed by both Taliban and government supporters in the aftermath of the incident. According to the family, no alternative mechanisms were provided to the family to file a report and no support to ensure their safety during this period was present.595 Overall though, the survivors and families affected by this incident noted a distinct lack of transparency and communication during the reporting stage. They note that they felt left ‘in the dark’ regarding whether an internal report had been made, or if it had been referred for further investigation.596 Today they still have not received any information or findings regarding the case.597 The family noted that the same was true when considering initial assessment and investigation stages of the process. Finally, although public Coalition statements to the press indicate an investigation was undertaken in this case, it appears that findings from their initial public communications regarding the incident remain unchanged by the investigation, or that the investigation and its findings remain classified. However, while either scenario is plausible, no site visits or subsequent interviews were undertaken with the family or at the compound.598 Further, according to witnesses, no updates or communications regarding the investigation were ever received by the families, leading them to believe no investigation occurred.599 Consequence Management, Compensation and Amends Based on the testimony of members of the Kashkaki family, to date no officials from ISAF or the US forces have ever contacted them regarding the incident. Further, no surviving members of the Kashkaki family, the guard, or the farmer’s family have received any apology or compensation for the loss of their family members, damage to the compound, and other property assets.600 Despite this, witnesses are clear: they want real compensation from US forces for their loss, accompanied by an apology, and a formal, transparent investigation. As no compensation and 595 Witness 2B (name withheld). Interview with author, 04/21/2021. 596 Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 597 Witness 2B (name withheld). Interview with author, 04/21/2021. 598 Witness 2A (name withheld). Interview with author, 18/03/2021. 599 Ibid. 600 Witness 2C (name withheld). Interview with author, 15/03/2021. 185 amends process was pursued in this case, the analysis for this stage is skewed due to lack of fulfilment. Thus, the analysis contained herein outlines the Kashkaki family’s priorities for compensation and amends, including their assessment of the importance and influence of each factor on their perceptions of Coalition forces’ legitimacy. They highlight the particular importance and influence of acknowledgement and the provision of an apology, expression of regret, or contrition on their perceptions of Coalition legitimacy and effectiveness. When asked about these factors and their importance to the family, one person said, We want compensation. They’ve killed two beloved members of our family. Of course, compensation– justice– is a priority. I would like it to be real, sincere. I want an apology and compensation. We want our family back, but that is impossible. All we seek now is to understand what happened, clear our name. We want the American forces to recognize what they have done and say that publicly we are not Talibs. We want them to apologize for harming our innocent family and we want meaningful compensation that will help us.601 The family is clear in noting that they would welcome ‘real’ compensation that met their needs and expectations, though other priorities come first. They note that due to the ‘misinformation’ they perceive being reported concerning the incident, their priority before compensation is a full investigation.602 The need for a complete and transparent investigation is two-fold for some witnesses– to provide the family answers as to why their relatives were killed and to clear their names after having been identified publicly by ISAF media releases as Taliban. As one member of the family who was detained for questioning in the aftermath of the incident noted, ‘I told them everything I knew, and now I want to know something from them. I want to know who gave misinformation to the Americans. I want to know why my nephew is dead. We want to know why this happened to us.’603 Assessment of Effectiveness Based on the analysis of factors based on data collected in the case study, in this case post-harm compensation and amends processes indicate ineffectiveness in contributing to counterinsurgency objectives of maintaining legitimacy in the aftermath of civilian harm incidents. The evidence evaluated in this case shows a consistent lack of engagement by 601 Witness 2B (name withheld). Interview with author, 04/21/2021. 602 Witness 2C (name withheld). Interview with author, 15/03/2021. 603 Ibid. 186 Coalition Forces in the civilian harm response process, with almost all factors indicating non-existent practices or severely lacking transparency regarding the response activities of Coalition forces in this case. Across all factors civilian expectations were not met, resulting in a discernible shift in survivor, family, and community perceptions of Coalition legitimacy. Figure 4.6 below provides a visual mapping of this case to the theory of effectiveness under study in this project. Figure 4.6: Visual Mapping of Kashkaki case to Theory of Effectiveness The family notes that the barriers they encountered during the reporting process, the lack of formal, public investigation or contact with the family by ISAF in the aftermath, and the lack of compensation as having a significant influence on the family’s perceptions of Coalition legitimacy in the aftermath of the incident. While the interviewees indicated that the barriers in the reporting process, and the lack of investigation of their claims had particular importance and influence over their perceptions of the Coalition, they also noted that being denied an opportunity to engage with the forces responsible and seek justice in the form of compensation was a significant barrier, particularly given the wide-ranging physical, psychological, and economic impacts the incident has had on the family afterwards.604 Yet witnesses are very clear– 604 Witness 2D (name withheld). Interview with author, 20/04/2021. 187 an investigation resulting in justice is the priority for them. As one witness noted, ‘I want to know, why did they do this? Whom should I ask? That’s the only thing I want. I want to know why this happened: why did I lose my brother and my son?’605 All witnesses interviewed note the change they have in their perception of the Coalition forces. As one witness noted to Amnesty International researchers, ‘Before this raid occurred, I was afraid of the Taliban, not the US [forces]. Now the US has labelled us as Taliban.’606 Another witness notes the resentment they feel regarding US forces, ‘they took our family but have left us with nothing. We have no answers and missing our family, and no money. We used to support them, but now, they are no better than the Taliban they think we are. They took our family and made us a target. We must live with this.’607 4.6 Noorlam Sahib Valley, Alingar, Laghman Province, 16 September 2012608 Two years after the night raids in Paktia and Nangarhar, a helicopter attack on a group of women in the Noorlam Sahib Valley in Laghman province killed seven women and girls and injured another seven. In the months immediately following the attack, Amnesty International researchers interviewed 15 people regarding the incident, including injured survivors and witnesses.609 As survivors and eyewitnesses tell it, on 16 September 2012, a group of approximately 25 women from several nearby villages in the Noorlam Sahib Valley set out into the darkness to collect firewood for their homes in the mountains. It was late– around midnight– but this was not uncommon for these types of household tasks. Undertaking a collection of firewood could take many hours, and the women could do this more easily in the darkness, away from prying eyes and while their children were sleeping at their homes. At around 3am– three hours after they set off– the women were walking together in smaller groups of three or four collecting wood as they went while catching up on each other’s lives.610 605 Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 606 Ibid. 607 Witness 2B (name withheld). Interview with author, 21/04//2021. 608 Gratitude is again due to Amnesty International researchers who provided invaluable insight, documentation, and support during this case study. 609 Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 610 Witness 3A (name withheld). Interview with author, 01/06/2021. 188 Several of the women describe lively conversations concerning their children, husbands and families, their worries in the world, and hushed laughter.611 The women looked forward to these trips into the woods as an opportunity to bond with their female friends away from their male relatives, talking about topics they would not be comfortable with at home, and also taking the opportunity to wash themselves in the cool spring water that ran down the mountains. It was at this point that the women’s’ lives were changed, as Coalition bombs rained down upon them as they washed in the spring. As a 17-year-old survivor of the incident named Aqel Bibi described to Amnesty International researchers shortly after the attack, We heard the planes, then a big explosion, as a bomb fell on the first group who were half a kilometre ahead of us. The noise was deafening in the mountain, and we fled. The plan came a second time and dropped another bomb, and we kept running toward the mountain to find a cave where we could hide. As we were running, the plane came again and this time it hit us…When the bomb was dropped on my group, three of us were injured, including to our neck, hand, and chest. I and another lost sight in one eye. I could feel the burns: they were like hot needles in my body and my eye. Then I felt warm and noticed something war and thick moving on me…I touched my neck and realized it was blood.612 The three women walking with Aqel Bibi were killed instantly. Villagers from the local area were able to hear the attack from their homes, miles away. As the explosions woke them up, they came onto their rooftops and could see the fires caused by the strikes burning brightly in the dark. Still able to hear planes circling overhead, no one dared to go find the women until hours later. Just as the sun was rising over the valley the villagers reached the site of the attacks. Witnesses described the horror of the scene to Amnesty International, with one father saying, ‘When I saw the bodies and injured everywhere I started searching for my daughter. Finally, I found her. Her face was covered with blood and her body was shattered. I took her chador and wrapped her body in it and tried to bring it back to the village.’613 In all seven women and girls were killed and another seven injured. At least one of the victims was pregnant, and one family lost three people.614 In the aftermath of the incident, several of the women who had been wounded were taken to the local hospital in Laghman, while those with 611 Witness 3A and 3C (name withheld). Interview with author, 01/06/2021. 612 Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 613 Ibid. 614 Ibid. 189 more serious injuries were taken to Jalalabad. Despite Coalition helicopters circling overhead observing the scene as villagers collected the bodies, no assistance was provided to them in the immediate aftermath of the strikes. Several members of the community expressed anger at having to carry the victims down from the mountains while Coalition air crews looked on from the sky.615 In the immediate aftermath of the airstrike on the women, the anger and tension amongst the affected community was palpable. Exacerbated by the lack of assistance provided by Coalition helicopter air crews during the villagers’ rescue operation, once they had collected the injured and dead women, according to eyewitness testimony, a group of villagers immediately contacted the district governor about the incident. During this time and contrary to the accounts of the villagers, an ISAF spokesperson spoke to the media, noting that the airstrikes undertaken in the Noorlam Sahib valley in the early morning hours had actually been called in against a group of approximately 45 insurgents “after positively identifying hostile intent,” and that “a large number of the insurgents” had been killed.616 The villagers were outraged by these public messages and further pressured the district governor, who contacted the provincial governor shortly thereafter. The provincial governor requested information about the airstrikes from a US military contact, who then informed them that the airstrikes had been carried out on intelligence that the target groups moving through the mountains were groups of Taliban fighters, including a brutal Taliban commander named Anzar Gul.617 Having seen the ISAF statement about the strikes, villagers became increasingly angered and responded by “bringing proof of the women’s deaths to the provincial capital, Mihtarlam.”618 When asked what type of proof they brought to the capital, one eyewitness who lost his daughter in the airstrikes told Amnesty International that ‘...we took the [women’s] bodies to the governor’s office to show that NATO actually hit women, not insurgents.’619 The villagers, including the local elders, staged a demonstration in front of the governor’s office. With tensions 615 Ibid. 616 Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 617 Ibid. 618 Ibid. 619 Ibid. 190 rising, several of them noted ‘We asked for the trial of those responsible…We chanted “Down with the Americans and down with Karzai”…the Americans came promising to bring peace and security but instead they brought misery.”620 The following sections explore the reporting, initial assessment, investigation, and consequence management stages of the civilian harm response process in this case and assess the effectiveness of the response and compensation process undertaken in the aftermath. A final section will explore the extent to which these post-harm processes were effective in supporting US forces to retain legitimacy following the incident. Reporting When interviewed for this study, survivors and eyewitnesses to the attack expressed considerable anger regarding the reporting and investigation process in the aftermath of the incident. These factors are explored in further detail below. They noted that despite the presence of Coalition helicopters in the area during the time the villagers were recovering the dead and wounded from the mountains, no contact was made by the helicopter air crews.621 Further, ISAF policy at the time required that air crews and ground troops drop leaflets in the affected area after operations that may have resulted in civilian harm with translated instructions as to how to make a civilian harm report or claim. According to survivors and eyewitnesses, no such leaflets were dropped either in the mountain area where the women were attacked or in the surrounding villages.622 Without this information, and particularly because of the relative isolation of the villages, affected civilians were not provided with any direct mechanisms for reporting the harm caused to the Coalition. This meant that the affected community reported the deaths and injuries through indirect mechanisms, including local government officials at the district and provincial level.623 While information regarding the harm caused by the strikes did make it to Coalition forces, this came after ISAF had already spoken to the media noting that the strikes had killed insurgents rather than the group of women, further exacerbating the anger felt amongst survivors, eyewitnesses, families and community members. As a result, multiple civilians interviewed for this study noted a lack of transparency or communication regarding how to report the incident to the coalition nor how to receive updates 620 Ibid. 621 Witness 3B (name withheld). Interview with author, 01/06/2021. 622 Witness 3C and Witness 3B, Interview with author, 01/06/2021. 623 Ibid. 191 as to next steps or an investigation process. One interviewee noted that ‘no one spoke to us. We never spoke to any representatives from ISAF. They ignored us.’624 When local politicians, including the district and provincial governors tried to assist and gather more information, they too hit roadblocks. While the Coalition had noted publicly that they would pursue an investigation into the incident, no information regarding this was provided to the affected community or local authorities.625 Civilians also expressed concern for their safety in the aftermath of the strike, not least from potential re-attacks by Coalition forces, but also ‘we were afraid because now people thought we were Talibs because the Coalition had hit our families. We felt in danger in many ways.’626 However, no safeguarding support for survivors or their families was provided according to witnesses.627 Initial Assessment & Investigation Although no military records related to this strike have been declassified and released publicly, based on press releases and information provided to the media by the ISAF Public Affairs Office (PAO) in the aftermath of the airstrike, we can discern that an initial assessment of the strike was undertaken.628 This assessment formed the basis for the Coalition’s shift in perception regarding the strike itself, with initial statements prior to the assessment noting that 45 insurgents had been killed as a result of the strike, in comparison to later statements where Coalition officials took responsibility for the deaths of the women and noted ISAF would be undertaking a full investigation of the incident.629 However, civilians interviewed with knowledge of this strike noted the lack of transparency and communication during this stage as an issue that fuelled their continued discontent towards Coalition forces. Witnesses said, ‘We did not know who to ask for information.’630 Others noted, ‘we had no information for who to contact. No one contacted us to help. We had to go to the governor.’631 Another noted ‘I have no power to ask the international forces why they did 624 Witness 3B, Interview with author, 01/06/2021. 625 ISAF Joint Command, “News: Joint team assesses civilian casualties in eastern Afghanistan,” 17 September 2012. 626 Witness 3B, Interview with author, 01/06/2021. 627 Witness 3A (name withheld). Interview with author, 01/06/2021. 628 ISAF Headquarters Public Affairs, “News: Coalition regrets civilian casualties,” 16 September 2012. 629 ISAF Joint Command, “News: Joint team assesses civilian casualties in eastern Afghanistan,” 17 September 2012. 630 Witness 3B, Interview with author, 01/06/2021. 631 Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 192 this.’632 Further, while it is evident from ISAF press releases and public statements that the case proceeded from the IA stage to a full investigation on the recommendation of the ISAF Commander, affected civilians were not kept informed during this process.633 Although it is known from public records that the incident was referred for a full investigation into the targeting of the women, no public information has ever been released regarding its findings. Therefore, little can be evaluated regarding the effectiveness of this investigation process. The lack of public information regarding the investigation has however, left the affected families with the perception that no investigation took place.634 None of the survivors, families, or community members were ever contacted to provide witness statements and no information or report was provided to them regarding the findings.635 Ghulam Noor, an older man whose 16-year-old daughter, Bibi Halima, was killed in the attack expressed frustration to Amnesty International researchers regarding this lack of transparency and communication. He noted that without an investigation or a public release of the findings if one did take place, he could not advocate for justice for his daughter. ‘I think an investigation should take place. But I don’t have any power. I can’t ask international security forces why they made this mistake. I don’t have the power to put pressure on them. I can’t bring them to court.’636 Despite multiple efforts to gather further information from American forces regarding the investigation of this airstrike, including FOIA requests filled by investigative journalists and the author of this study, no information regarding the investigation or its findings have been released at the time of writing. Consequence Management, Compensation and Amends Following the initial assessment completion and facing multiple press inquiries, ISAF responded with a public acknowledgement of responsibility and an expression of regret, and contrition for its role in the strike on 16 September 2012, the same day of the strike.637 Confirming its role in the strikes on the women, the Coalition noted in a press release that ‘a number of Afghan 632 Ibid. 633 ISAF Joint Command, “News: Joint team assesses civilian casualties in eastern Afghanistan,” 17 September 2012. 634 Witness 3B, Interview with author, 01/06/2021. 635 Witness 3C, Interview with author, 01/06/2021. 636 Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 637 “Afghanistan: ‘NATO airstrike kills eight women’ in Laghman,” BBC News, 16 September 2012. 193 civilians were unintentionally killed or injured during this mission which was undertaken solely with the intent of countering known insurgents.”638 It continued by noting that ISAF extended its “deepest regrets and sympathies to the families and loved ones of civilians who died or were injured during coalition airstrikes.”639 In the days following the attack, a group of villagers whose family members had been killed or injured in the strikes met with Afghan President Hamid Karzai. According to sources interviewed by Amnesty International and during this study, Karzai told the villagers that the only way any justice or accountability for the strike would happen is if they ‘put pressure’ on the Americans or nothing would happen.640 He reportedly encouraged them not to accept any money from US personnel, instead providing them compensation directly.641 Shortly thereafter a delegation of high-ranking American military leadership and political personnel travelled to the villages to meet with the families of those injured and killed in the strikes. During this meeting, according to civilians present, ‘The American commander apologized for killing [the] women and asked whether we wanted compensation.’642 However, with no information provided from the investigation as to why these strikes had occurred, the villagers refused both the apology and the compensation offer. When asked why they did so, several civilians interviewed as part of this study said the apology and offer of compensation felt disingenuous. One witness noted, ‘I don’t believe they cared, because they could not explain why. I think they come and offer this apology and some money because they are afraid, we will fight. I don’t believe they care about the people they hurt.’643 Others had stronger responses. One villager told Amnesty International researchers that in response to the offer of compensation he and others responded ‘No, we will not sell the blood of our martyrs,’ interpreting the offer of compensation as ‘blood money.’644 Others took issue with the apology that was provided by the American commander, noting that without information 638 ISAF Headquarters Public Affairs, “News: Coalition regrets civilian casualties,” 16 September 2012. 639 “NATO air strike kills 8 Afghan women,” AFP, 16 September 2012. 640 Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 641 Civilians involved note Karzai’s team provided $2,000 per victim, in line with US practices at the time. 642 Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 643 Witness 3C, Interview with author, 01/06/2021. 644 Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 194 about why this had happened or any accountability for those responsible, ‘sorry’ simply was not enough to quell the anger that families felt towards ISAF forces. As one man noted, ‘We don’t want an apology. We want revenge.’645 With this in mind, the subsequent sections provide an analysis of factors during the compensation and amends process and their influence on the perceptions affected civilians hold of the effectiveness of the process and Coalition legitimacy in the aftermath of the event. Some interesting insights emerged while completing the analysis of key factors influencing civilian perceptions. Notably, despite significant shortfalls in transparency and communication during the reporting, initial assessment, and investigation phases, the compensation and amends process in this case demonstrates some areas of good practice by ISAF personnel. In particular, the speed of acknowledgement of ISAF responsibility, the timeliness and proactive nature of the compensation outreach prior to an investigation being completed, the provision of an apology by the ISAF Commander, and the efforts to abide by local customs in meeting with local elders, authorities, survivors, and families all, on the surface, point to established good practice by ISAF forces in the aftermath of civilian harm incidents. However, there were varying perspectives amongst civilians regarding the degree to which some factors were fulfilled. Notably, all civilians interviewed in this case noted that the lack of information, transparency or insight into the findings of the investigation had a significant impact on their perceptions of the Coalition’s apology and offer of compensation.646 They noted that without the opportunity to understand why the strike had been carried out and advocate for accountability and justice, the apology and offer of compensation felt ‘empty’ and disingenuous.647 Some interviewees said that while ISAF personnel did make efforts to ensure the apology they provided and the compensation they were offered were culturally appropriate within the customs and practices of the local region, the Coalition failed to acknowledge or account for survivor and family needs in the aftermath of the strike, never asking or considering what the family might want or need in terms of compensation. While some families impacted were grateful for the acknowledgement and apology, others found the process offensive and the amount offered ‘too low for what they had lost.’648 Others, 645 Amnesty International, Left in the Dark: Failures of Accountability for Civilian Casualties caused by International Military Operations in Afghanistan (London, 2014), https://www.amnestyusa.org/wp-content/uploads/2017/04/left_in_the_dark_afghanistan.pdf. 646 Witness 3A, 3B, 3C (names withheld). Interviews with author, 01/06/2021. 647 Ibid. 648 Witness 3B and 3C (names withheld). Interviews with author, 01/06/2021. 195 particularly those families where a woman had experienced serious injuries, noted that rather than ‘meaningless’ apologies and money, they needed practical help– including access to prolonged medical care and rehabilitation, which was not provided.649 Assessment of Effectiveness Based on the analysis undertaken and data collected in the case study, the post-harm compensation and amends processes indicate ineffectiveness in contributing to counterinsurgency objectives of maintaining legitimacy in the aftermath of civilian harm incidents. The data collected during the case study and in interviews with affected civilians, shows civilian perceptions regarding the fulfilment of key factors across the reporting and initial assessment stages were resoundingly negative, while perceptions regarding factors during the investigation and compensation and amends stages were more mixed. Figure 4.7 below provides a visual overview of this case mapped against the theory of effectiveness for this study. Figure 4.7: Visual Mapping of Noorlam Sahib Valley case to Theory of Effectiveness 649 Witness 3A (name withheld). Interview with author, 01/06/2021. 196 Civilians who participated in this study noted the lack of transparency and communication across all stages of the response process as particularly detrimental to their perceptions of the Coalition’s legitimacy. Several interviewees noted they viewed this lack of engagement and clarity as a lack of care. One individual noted, ‘They killed our women, but they did not care. They hid and did not contact [us]. They tried to avoid us. Then they came offering money, but it made no difference to us when they ignored us.’650 Others noted the lack of engagement followed by the offer of compensation as ‘offensive,’ noting that what they really wanted was ‘justice’ for their loved ones and repeatedly noted they wanted a ‘fair investigation.’651 One interviewee noted, ‘I want someone else [independent] to investigate. They say they did an investigation, but they tell us nothing. I want to know why this happened, but I do not trust them to say the truth.’652 Further, for many, the compensation and amends process that followed further exacerbated their feelings of animosity due to the perception that the apology offered was disingenuous and the compensation offered was perceived as blood money or only to ‘serve Americans.’653 For some families, ISAF’s inattentiveness to these needs and perspectives exacerbated the anger they felt and fuelled feelings of revenge. Even though the Coalition did undertake culturally appropriate approaches to offering compensation and did provide an expression of regret, interviewees noted they did not want the apology or compensation without an investigation. One individual noted that ‘we knew why they were there to do this, they think money can solve [this] and they can say sorry, and we are happy. We lost our families; how would you feel? Would money fix it for you? We are sad and angry. They are criminals. They cannot fix it.’654 This case is also unique due to the direct personal intervention of President Karzai with the families prior to the arrival of the ISAF delegation. It remains unclear if perceptions of the ISAF apology and compensation offer may have been different had Karzai not interceded prior to American forces completing the compensation and amends process. 650 Ibid. 651 Witness 3B and 3C (names withheld). Interviews with author, 01/06/2021. 652 Witness 3B (name withheld). Interview with author, 01/06/2021. 653 Ibid. 654 Ibid. 197 4.7 Summary Through the cases above, it has been shown that although civilian harm response can have a positive impact on counterinsurgency objectives to maintain or regain legitimacy in the aftermath of civilian harm, the extent to which they may be effective in doing so is determined by the perceptions and experiences of affected civilians. These perceptions are influenced by the extent to which Coalition forces fulfil civilian expectations of key factors over the course of the process. Across these three cases in Afghanistan, we see varying outcomes. Table 4.2 below provides an overview of those identified in the cases explored above. Table 4.2: Summary of Case Outcomes in Afghanistan Incident Date & Location Investigation Status Compensation Provided? Civilian Expectations Met? Support obtained, retained, regained? Effectiveness Prediction Effectiveness Evaluation Feb 12, 2010; Khataba, Gardez, Paktia, Afghanistan Completed Yes Partial No Partial Effectiveness Partial Effectiveness 14 May 2010; Kashkaki family compound, Nangarhar, Afghanistan No No No No Ineffective Ineffective Sept 16, 2012; Noorlam Sahib Valley, Laghman, Afghanistan Completed No* No No Ineffective Ineffective In the case concerning the Sharabuddin family in Gardez, Paktia province we see a situation of partial effectiveness. While an investigation was undertaken and compensation was provided, Coalition conduct during the response process, a lack of transparency and communication issues decreased their ability to meet the expectations of affected civilians. Based on the analysis of key factors, although the Coalition demonstrated a high-level of procedural legitimacy in the response and compensation process, key pitfalls that moved the perceived effectiveness from ‘effective’ to ‘partial effectiveness’ were largely those that influenced affected civilians’ perceptions of the Coalition’s normative and performance-based legitimacy. While the Coalition was able to stabilize key relationships with local authorities that were affected due to the unique circumstances of the case, at times this resulted in a deprioritization of the needs and 198 expectations of survivors, families, and witnesses throughout the process. Thus, when compensation and an expression of contrition was offered to the family in a culturally appropriate manner, it was only partially accepted, with many witnesses still harbouring anti-American and anti-Western sentiments as a result of their loss and the experience they encountered during the civilian harm response process. This case demonstrated the pitfalls of prioritization in civilian harm response and compensation, particularly where other valuable relationships, such as security force assistance partnerships, may be involved. The implications for these relationships, such as with the ANP in this case, are more obviously of strategic consequence than that of the affected family and community. Thus, in such circumstances, Coalition forces may not fully address the unique expectations of survivors, families, and communities, as distinct from those of key partners involved. Such cases, to be effective, may require different approaches for each actor group, rather than one combined process. In the case of the Kashkaki family in Nangarhar province, while Coalition forces state an investigation was undertaken, it has never been made public, nor its findings communicated to the families affected by the incident. To this day, survivors and witnesses are still seeking answers. This early lack of transparency, engagement, and communication led to a breakdown in support for the Coalition forces. While the Kashkaki family previously viewed the Coalition forces positively, they note that in the aftermath of the incident and due to their experiences of the response process, they now view US forces as equal perpetrators, in line with the harm the Taliban inflicted on civilians. No compensation or any subsequent Coalition engagement in this case is evident in the aftermath of the incident. Based on these factors, civilians affected by this incident consider the response and compensation process ineffective with identified factors of concern impacting affected civilians’ perceptions of all forms of the Coalition’s legitimacy in this case. Finally, in the case of the women targeted by airstrike in the Noorlam Sahib Valley of Laghman province, we see an investigation undertaken, but compensation from the Coalition refused by the families affected. While early issues concerning communication and transparency are 199 evidence in this case, the direct interventions of Afghan President Hamid Karzai, including small amounts of compensation provided to survivors by his office, are likely to have influenced increased feelings of resentment and revenge against the Coalition. As a result of these factors and the intervention by Karzai, this case reveals an ineffective civilian harm response process whereby resentment against the Coalition grew substantially in the aftermath of the incident response, resulting in several instances of violent demonstrations and tacit denial or interruption of Coalition activity in the area in the aftermath of the event. Based on the analysis of the identified factors, while some procedural legitimacy was maintained during the response process in this case, civilians’ perceptions of the Coalition’s performance-based legitimacy was significantly weakened by the lack of communication and transparency and Karzai’s intervention citing performance-related concerns regarding Coalition-levels of civilian harm. Further, although the Coalition’s scores were low concerning normative legitimacy, this was likely substantially weakened by Karzai’s intervention as well, particularly with the offer of compensation from his office, which then influenced the rejection of Coalition compensation thereafter. Based on the theory of effectiveness presented in Chapter 1 and 2, each of these cases encountered disruptions to the effectiveness determinants at different stages. In the Sharabuddin case, while an investigation was completed and compensation provided, civilians point to issues during the reporting, initial assessment, and investigation processes as factors that impacted their confidence in the Coalition’s normative commitment to its stated civilian harm mitigation and response policy, as well as their confidence in the Coalition forces’ ability to meet the expectations civilians had of them procedurally and in terms of their performance to protect them from harm and guarantee strong and accessible options for justice and accountability. In the Kashkaki case, due to the lack of reporting or assessment of the incident, nor any engagement with the family, these factors disrupted the theory of effectiveness even earlier in the process. According to the Kashkaki family, at no point in the aftermath did the Coalition forces demonstrate normative alignment with their expectations or demonstrate an interest or ability to meet the procedural and performance-based expectations the family and community held of Coalition forces. Finally, in the Noorlam Sahib valley case, despite an investigation being undertaken and compensation offered, issues during the investigation process, including a lack of 200 transparency or communication with the family, left open opportunities for other actors to influence the perceptions of the survivors and family. The intervention by the Afghan President in this case provides ample evidence of the opportunity external actors, including those with good or bad intentions, have if civilian expectations regarding normative alignment, and procedural and performance-based legitimacy in the civilian harm response process are not met by Coalition forces. Importantly, across all three cases, evidence suggests that survivors, families, and witnesses are driven by narratives of ‘justice’, ‘accountability’, and ‘care’ in the aftermath of civilian harm incidents and these narratives influence their expectations of Coalition Forces conduct in the aftermath. Analysis indicates that civilian expectations are more integrated than previously thought– that most civilians interviewed for this study were very focused on the need for an investigation to achieve ‘accountability’ whereas in cases where criminal wrongdoing was not found, compensation and amends could assist in fulfilling the ‘justice’ requirement sought by civilians. This was particularly evident in the three cases analyzed. Across all cases it was evident that early stages of the process, including reporting, initial assessment, and investigation were a particular priority for civilians in understanding why the event occurred, and thus had a significant influence on the degree of effectiveness and legitimacy civilians perceived towards the end of the process. The factors identified across the reporting, initial assessment, and investigation stages in these cases appear to influence the degree to which compensation and amends will be viewed positively, be accepted as legitimate, and have a discernible impact on civilians’ perceptions of justice and thus the Coalition’s maintenance of legitimacy in the aftermath of civilian harm incidents. 201 Chapter 5: The Remoteness of Harm Civilian Harm and Compensation Practices in the Campaign against ISIS/L in Iraq and Syria, 2015-2018 ‘They have left a scar on my heart that can never be erased.’ - Abdullah Rashid Saleh655 5.1 Introduction The Western intervention in response to the Islamic State in Iraq and Syria/the Levant (ISIS/L)’s rapid occupation of large swathes of Iraq and Syria is a compelling context to conduct this research in, particularly in contrast to the case studies undertaken above considering former ground operations in Iraq and the Afghanistan War. While geographically and culturally there are many similarities to the two campaigns in Iraq, that is where the majority of similarities end. While past chapters have investigated civilian harm response and compensation in the context of counterinsurgency, this chapter will analyze the practice in an environment where Coalition activities have often straddled the divide between counterinsurgency and counterterrorism operations. Additionally, the type, frequency, and response to civilian harm differs significantly from previous chapters in the context of the campaign against ISIS/L. A campaign fought nearly entirely from the air, the perceived precision of airstrikes, the types of civilian harm that have resulted, and updated Coalition civilian harm mitigation and response practices are all important factors influencing the variable perception of legitimacy held by civilians in Iraq and Syria. Thus, it provides a ‘hard test’ set of cases to explore the impact of civilian harm response and compensation on perceptions of the Coalition’s legitimacy and effectiveness beyond a pure counterinsurgency environment. The inclusion of these cases extends the potential generalizability of the findings beyond solely counterinsurgency campaigns. 655 Saba Azeem, Lauren Gould, Erin Bijl, and Jolle Demmers, After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija (Utrecht: Colophon, 2022). 202 5.2 Overview of Cases The cases under study in this Chapter represent three incidents of civilian harm for which Combined Joint Task Force-Operation Inherent Resolve (CJTF-OIR) responsibility has been established through internal Coalition reports and external reporting. They range in location, number of casualties, and the type and form of response undertaken by the Coalition. These cases, as well as their key features, are detailed below in Table 5.1. Table 5.1: Overview of Cases in Iraq and Syria Date Location Geo-Coordinates Attribution Type Deaths Injuries Investigation Compensation June 3, 2015 Hawijah, Kirkuk, Iraq 35.32081, 43.78322 US Coalition Airstrike 70 80-100 Completed Partial* Sept 20, 2015 Mosul, Nineveh, Iraq 36.38508, 43.12135 US Coalition Airstrike 4 2 Completed Yes Dec 20, 2016 Tabaqa, Raqqa, Syria 35.84667, 38.543889 Unknown (suspected US Coalition) Airstrike 4-5 10 No No The information provided includes the date, location and geo-coordinates of the strike, the attribution of the strike, level of casualties (both deaths and injuries), and information regarding whether an investigation into the incident was completed by the Coalition and whether compensation was provided. This information assists in indicating whether civilian harm response processes are interpreted to be effective or ineffective by civilians impacted by the strikes and whether these perceptions influence how they view the legitimacy of the Coalition. 5.2 The Conflict, Coalition Air Warfare, and CJTF-OIR In the early 2000s a small branch of al Qaeda in Iraq (AQI) known for its extremist views, even for al Qaeda, split off from the wider al Qaeda network. Founded by Abu Musab al Zarqawi in 2004, the group, known as the Islamic State, ISIS, ISIL, or Daesh, faded in and out of the landscape of extremist groups in Iraq over the next seven years. However, with the withdrawal of Western troops from Iraq in 2011, it began to re-emerge, spending the following three years building its ranks, radicalizing youth in Iraq, Syria, and around the world through online fora, and carrying out attacks. By 2013, the group was gaining significant popularity in Iraq and Syria for its brutal interpretation of Islamic law and changed its name to the Islamic State of Iraq and 203 Syria later that year. Overseas recruitment began to grow, and foreign fighters began to arrive in Iraq and Syria to support the ISIS militants, a first offensive was launched on the cities of Mosul and Tikrit in June 2014.656 Weeks later, the group's leader, Abu Bakr al Baghdadi ‘announced the formation of a caliphate stretching from Aleppo in Syria to Diyala in Iraq.’657 In the months following this announcement, ISIS gained significant territorial ground. At its height, the group had occupied more than a third of Syrian territory and 40 percent of Iraq.658 A US-led coalition was put together in response, but it was not until ISIS militants publicly beheaded American journalist James Foley, that Coalition activity increased significantly. In a 2017 Mission Statement Fact Sheet, the Coalition lays out its intentions. Its mission is ‘to defeat ISIS in designated areas of Iraq and Syria and set[s] conditions for follow-on operations to increase regional stability.’659 To do so, they describe the requirement to defeat ISIS as involving many interrelated objectives, including the disruption of ISIS’ ability to command and control their fighters, the removal of their safe havens, interrupting their revenue streams, destroying their equipment, and killing their fighters.660 The overarching mission focuses on the military contribution to creating enduring regional security in Iraq and Syria by not only defeating ‘the military power of ISIS, but’ also by ‘...defeat[ing] the ideology of ISIS… and ‘[h]elping to bring security and stability to conflict-affected areas by stemming the global flow of foreign fighters and radicalized jihadists is a key priority for CJTF-OIR in order to secure the enduring defeat of Daesh.’661 With these goals in mind, the Coalition’s activities were carefully designed. In the aftermath of the widespread violence and civilian casualties associated with the ground operations carried out by Western forces in Iraq and Afghanistan previously, most Western publics did not want another war– the tolerance for seeing their soldiers come home in body bags no longer existed for a war beyond their borders. Additionally, Western forces in Iraq and Afghanistan had come 656 BBC News, ‘Isis leader calls on Muslims to ‘build Islamic state’ BBC News, July 1, 2014, https://www.bbc.co.uk/news/world-middle-east-28116846. 657 Wilson Centre, Timeline: the Rise, Spread, and Fall of the Islamic State.’ October 28, 2019, https://www.wilsoncenter.org/article/timeline-the-rise-spread-and-fall-the-islamic-state. 658 CJTF-OIR, ‘Combined Joint Task Force- Operation Inherent Resolve: FACT SHEET, 2014-2023, https://www.inherentresolve.mil/Portals/14/Templates/CJTF-OIR_Mission_2022x2023.pdf?ver=1JrUw1Yu5Q-hVj1kcmeTFQ%3d%3d&timestamp=1666171490834. 659 Ibid. 660 Ibid. 661 Ibid. 204 under significant criticism for the high numbers of civilian casualties that resulted from their operations over the previous ten years. Civilian populations in Iraq, while hopeful that a Western intervention would free them from life under ISIS, were cautious in their expectations having witnessed the ground war fought in their country over the previous decade. The Coalition’s actions against ISIS in Iraq were publicly justified in official statements by military and political leaders, press releases, and the media by emphasizing the differences in the violence perpetrated by ISIS against civilians in contrast to the ways in which Coalition forces would be pursuing ISIS fighters. From the very beginning, this conflict was framed as the most precise military operation in history. Statements released by the Coalition and its contributing nations repeatedly emphasized that their operations against ISIS would be consistent with ‘military necessity…and avoid[ing] civilian casualties at all costs.’662 Many statements emphasized the key role of precision technology, with many pointing to the transformative effect of using smart laser or GPS guided bombs to ensure accurate targeting.663 Country representatives emphasized the benefits of this approach, pointing to the ways in which it would minimize the impact of the campaign on civilian communities while also allowing them to limit the harm that may come to Western military personnel.664 Indeed, this approach to operations instilled unprecedented confidence in Iraqi and Syrian civilians, with the majority of civilians interviewed for this study expressing support for the Coalition operation in the early stages of the intervention. Many noted they perceived the intervention as ‘legitimate’ and ‘necessary’ noting the Western operation was needed to help defeat ISIS.665 In the years that followed, the Coalition has carried out over 34,000 airstrikes, dropping over 100,000 bombs over Iraq and Syria.666 In utilizing this new approach, the Coalition relied heavily on ‘remote warfare’ made possible using airstrikes informed by air-based intelligence platforms and local on the ground partnerships. While this reliance on airpower to achieve mission objectives drastically decreased the risks for Coalition forces, it also limited the Coalition’s 662 “Transcript: Defense Secretary James Mattis on ‘Face the Nation’,” CBS News, May 28, 2017. 663 Saba Azeem, Lauren Gould, Erin Bijl, and Jolle Demmers, After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija (Utrecht: Colophon, 2022), 20. 664 Minister of Defence, “Bestrijding internationaal terrorisme,” Report of a General Meeting (27 925, nr. 670), August 11, 2015. 665 Ibid,10. 666 Chris Woods, “Cause for Concern: Civilians Killed in Coalition Strikes,” Report (Airwars, 2015), 25. 205 ability to assess, monitor, and effectively report on civilian harm that resulted from Coalition activities. Yet such an approach to warfare, particularly where the priority is providing security to civilian populations, comes with significant challenges for civilian harm mitigation and response. Coalition officials often cite the distance and lack of boots on the ground as reasons why they cannot rigorously verify, investigate, and provide compensation for civilian harm caused by their operations. This ‘remoteness’ combined with a shift in focus from counterinsurgency goals in the early stages of the campaign to more counterterrorism focused objectives in the latter stages also changed Coalition’s approach to civilian harm management. At the outset of the campaign in Iraq and Syria a significant focus was placed on winning the support of the population to inhibit the growth of ISIS and bolster Western-aligned government forces and rebel groups to fight against them. However, as ISIS’ influence and territorial control declined, CJTF-OIR objectives have increasingly focused on counterterrorism objectives such as targeting ISIS leadership in the region. This strategic focus combined with fewer boots on the ground has resulted in a discernible shift in the ways in which Coalition forces perceive the strategic role of civilian harm mitigation, response, and compensation in Coalition operations. For Coalition strategists, the shift from counterinsurgency to counterterrorism objectives combined with the remote nature of the conflict meant civilian harm mitigation remained a vital component of their operations, whereas civilian harm response would not be as frequently required, nor as strategically relevant. As the mission shifted towards counterterrorism, the need to pursue legitimacy-centric goals was perceived as less of a priority for Coalition forces. As one former British Army officer who served on CJTF-OIR noted, ‘We were not fighting for the people’s support anymore, they were already on our side. We weren’t starting at the beginning here, that part of the campaign was still important, but as ISIS lost ground, it was less and less central.’667 Similarly, with significantly fewer Coalition boots on the ground in Iraq and Syria, the element of population-centric counterinsurgency strategy that focused on pursuing civilian support to limit harm to its own troops was a non-existent issue. As a US decisionmaker noted, 667 Military Officer (name withheld). Phone interview with author, 12/15/2020. 206 A big part of our concerns in Afghanistan and Iraq before this were protecting our people from risk in the aftermath of civilian harm incidents. Alongside the big strategic goals, we were often engaging in consequence management with a secondary eye to force protection. In this campaign, we have much fewer concerns regarding force protection as our force isn’t there. So, for many, consequence management is on the backburner unless it would be a major reputation cost.668 Further, by the time the CJTF-OIR operation began to transition towards counterterrorism tasks, civilian harm mitigation practices had improved drastically across Coalition forces. Following on the lessons learned in Afghanistan and Iraq, CJTF-OIR was not only set on ensuring the campaign was the most precise combat operation ever undertaken, but also that its civilian harm mitigation approach was a key component of that. Most nations involved in the Coalition had adopted comprehensive Protection of Civilians policies and flowed these obligations down into their target identification, planning, and execution protocols. Yet, despite these improvements in civilian harm mitigation, CJTF-OIR has seen high rates of civilian harm incidents drastically out of line with the ‘precision warfare’ claim. Yet this institutionalization of civilian harm mitigation methods has, at times, inhibited the role for civilian harm response in CJTF-OIR operations. Despite high rates of civilian harm incidents, the Coalition has often pointed to their commitment to mitigation techniques embedded in their processes in avoiding post-harm investigations and compensation. As the strategic consequences of civilian harm incidents caused by the Coalition are further away in both time and space, Coalition strategists often point to their rigorous mitigation techniques as a reason why further investigation and compensation is not a necessity. As one military officer familiar with CJTF-OIR targeting noted, Every precaution is taken to mitigate civilian harm and there is a massive, lengthy paper trail for all strikes. It [civilian harm mitigation] has been built into every system and check and balance in the targeting protocol. So, when civilian harm happens, it is regrettable, but there is often nothing more we could have done to prevent it. We undertake every strike with the law and our own ROE guidance in mind, so we are confident after a strike that we’ve done everything we could.669 668 Former CENTCOM Decisionmaker (name withheld). Phone interview with author, 14/11/2021. 669 Military Officer (name withheld). Phone interview with author, 04/22/2021. 207 This logic has meant that within CJTF-OIR and subsequent operations there has been an increased formalization and legalization of the civilian harm response process. For an investigation to be carried out, an initial assessment first must determine the incident was credibly attributed to Coalition forces (no small feat in contexts like Syria). For an investigation to be undertaken and compensation considered, there needs to be proof that the Coalition based on the knowledge and circumstances ruling at the time could have or should have known their actions would result in civilian harm. Rarely is this burden of proof met, with very few civilian harm incidents resulting from CJTF-OIR operations resulting in compensation. Yet, despite CJTF-OIR arguments that civilian harm mitigation has improved, data collected by Larry Lewis, the New York Times, and the Pentagon’s own civilian harm assessments tell a different story.670 In a May 2021, a Pentagon inspector general report argued that “only valid military targets are struck” and that “damage to property and loss of civilian life is mitigated to the maximum extent possible.”671 However, the New York Times study of 216 credible cases revealed distinct patterns of failure within the targeting process—including routinely misidentifying civilians as combatants, failing to detect civilians, overlooking flawed intelligence, basing targeting decisions on flawed video, failing to account for civilians who may walk into the target frame, and failing to assess the risk of secondary explosions.672 Thus, although there have been significant improvements in civilian harm mitigation practices, even a ‘precision war’ that promised to drastically decrease the number of civilian casualties caused in comparison to previous conflicts, cannot reduce the number of civilian casualties to zero. Yet the remoteness of conflict and mislaid confidence in population support for Coalition activities has meant that CJTF-OIR has deprioritized civilian harm response in these cases. For civilians, this means the costs of civilian harm, including death, injury, disability, trauma, loss of family members, and unemployment largely go uncounted and unacknowledged. For example, during the Battle of Mosul, the Coalition’s fight to retake the city was conducted 670 Azmat Khan, “Hidden Pentagon Records Reveal Patterns of Failure in Deadly Airstrikes.” The New York Times, 18 December 2021, https://www.nytimes.com/interactive/2021/12/18/us/airstrikes-pentagon-records-civilian-deaths.html. 671 Department of Defense Inspector General, Kinetic Targeting and Civilian Casualty Reporting in the United States Central Command Area of Responsibility, May 18, 2021, https://media.defense.gov/2021/Dec/10/2002907413/-1/-1/1/DODIG-2021-084%20(REDACTED).PDF. 672 Ibid. 208 entirely from a distance, employing both artillery and airstrikes against ISIS positions. The battle resulted in an estimated 9,000 to 11,000 civilian casualties, the destruction of over 15 neighbourhoods, three quarters of all roads in the city, and all of its bridges.673 Approximately 80 percent of the city’s electrical network was damaged.674 In Raqqa, Coalition bombings left 70 percent of the city in rubble and caused more than 1600 civilian fatalities.675 However, in contrast to these civilian casualty numbers, as of January 2021, the Coalition estimates only 1,417 civilians were killed as a result of their actions during the entirety of their operations over Iraq and Syria.676 Yet, of the thousands of civilian harm incidents that have been caused by CJTF-OIR operations in Iraq and Syria, the Hawija airstrike and the Razzo family cases explored below are two of the only incidents which have resulted in investigation and compensation. With a significantly higher burden of proof on civilians, and even more inaccessible processes plaguing the investigation and compensation process, civilian harm response and compensation has become even more inaccessible. However, despite Coalition thinking, the strategic costs of civilian harm incidents, left unaddressed, remain significant. While the Coalition may not feel the immediacy of the threat of lost legitimacy nor the direct force protection risks that shaped civilian harm response and compensation in Iraq and Afghanistan, these same strategic costs exist in the counterterrorism operations of CJTF-OIR. In cases which have been left unaddressed, discontent, and reduced support for the Coalition are already evident. Some communities, as a result of Coalition airstrikes no longer have access to employment, basic services, or a way to feed their families. Many note that while they still do not support ISIS in the aftermath of civilian harm incidents, they also no longer support the Coalition and its operations. However, several interviewees note that the situation these incidents have left them in provide them little opportunity, hope, or reason to support Western forces in the future. Some, in order to feed their families, have begun to consider joining other rebel groups, further enabling continued instability in the region. Thus, in the strategic calculation of the Coalition’s transition from counterinsurgency to counterterrorism operations, they likely relied on a false dichotomy 673 Abigail Watson and Alasdair McKay, “Remote Warfare: A Critical Introduction,” in Remote Warfare: Interdisciplinary Perspectives, eds. Alasdair McKay, Abigail Watson and Megan Karlshøj-Pedersen (E-International Relations, 2021), 7-33; Amnesty International, “New reports place Mosul civilian death toll at more than ten times official death toll,” Amnesty International, December 20, 2017. 674 Ibid. 675 Alex Emmons, “Coalition Airstrikes in Raqqa Killed at Least 1,600 Civilians, More Than 10 Times U.S. Tally, Report Finds,” The Intercept, April 25, 2019. 676 Amnesty International and Airwars,” Rhetoric Versus Reality in the War in Raqqa,” 2019, https://raqqa.amnesty.org. 209 when considering the relative centrality of civilian harm response and compensation. While the average Iraqi or Syrian has no ambitions to join ISIS, a lack of meaningful Coalition response to civilian harm incidents could push them into the folds of other rebel groups, further destabilizing the region and undermining Coalition objectives to provide regional security and stability. For military operations like CJTF-OIR, the ripple effects of civilian harm incidents like these are severe, with the strategic impacts resulting from them only worsening if left unacknowledged and unaddressed. This chapter explores these impacts through the evaluation of three cases of civilian harm resulting in the deaths of over 85 people in Hawija, Iraq, Mosul, Iraq, and Tabaqa, Syria during the height of the Coalition’s air campaign between 2015 and 2017. 5.4 The Saleh Family and others, Industrial District, Hawija, Kirkuk, June 2-3, 2015677 Abdullah Rashid Saleh and his family were new to the city of Hawija. Victims of circumstance and the terrifying reign of the Islamic State of Iraq and Syria (ISIS), when the militant group violently swept into their hometown in Salahaddin governorate, Abdullah and his family, including his two wives, Khamisa and Sajidah, and his children, 11-year-old Yamamah, 7-year-old Rasheed, 6-year-old Ibrahim, 4-year-old Amal, and 9-month-old Mahmoud, fled the area in order to escape the fighting. With the goal of reaching Kirkuk or Erbil, Abdullah headed to Hawija– at the time a vital waypoint on the routes to Kirkuk and Erbil for those fleeing the violence in Salahaddin. But even this initial journey was not easy as ISIS was known for capturing and torturing people on the run.678 As more people began fleeing along these routes, ISIS began targeting those on the routes between Hawija to Kirkuk and Erbil. After considering the risks, Abdullah made the difficult decision to stay in Hawija temporarily until safer routes to escape appeared. He and his family rented a house in Hawija’s industrial district, sharing the space with members of Abdullah’s extended family. In all there were fifteen residents of the house and several members of his extended family from his tribe also lived close by in Hawija. Yet, in 2015 when Abdullah’s family arrived in the city, the situation was far from safe. ISIS was a constant, 677 This case study would not be possible without the groundbreaking research undertaken by the Intimacies of Remote Warfare programme at the University of Utrecht, PAX for peace, and the Al Ghad League for Women and Children concerning the airstrike in Hawija and its aftermath. I am grateful for their prior work and willingness to share information to support this case study. 678 Als de bom valt: Danny Ghosen in Irak (2022: VPRO), documentary. 210 unpredictable, and brutal feature of life. The militant group controlled many of the key services, including healthcare and education, denying them to those who refused to swear allegiance to the militant group. Even the services that were available were risky to engage with. For example, Abdullah did not feel comfortable letting his children attend school in Hawija because almost all schools in the city were now run by ISIS and their supporters. They taught a radicalized curriculum, including teaching children how to handle and fire weapons. In the early days of the Coalition’s air campaign, civilians were ‘very happy about the arrival of the Western forces because we wanted to be saved from ISIS…So we wanted to get rid of them in any way.’679 Other Hawija residents echoed these sentiments. Several people described life under ISIS as ‘no life.’680 Others expressed the sense of hope the Western intervention gave them for a better life. ‘When we heard the forces approaching, we were crying out of joy. We wanted the security forces to come to get rid of ISIS.’681 Another noted that ‘ISIS was more powerful than us’ and that it was essential that Iraqi and Western forces cooperate to push ISIS out of the city.682 In short, the residents of Hawija, by and large, considered Operation Inherent Resolve (OIR) a necessary and legitimate military intervention to end ISIS’ reign of terror. This perception of legitimacy also extended to Coalition practices, particularly with regards to the accuracy of the Coalition’s targeting. After years of living through conflict and military intervention in Iraq, the residents of Hawija were not strangers to airstrikes and many noted they could tell the difference between Coalition and non-Coalition planes based on their sound. Coalition planes were much more sophisticated than other actors, including Iraqi planes, that had access to the airspace over the city and based on this, residents began to take note of the differences in targeting accuracy. Many Hawija residents voiced the belief that Coalition airstrikes in the early days of the intervention were more accurate than those undertaken by Iraqi security forces or other players in the region, including Iranian and Russian forces. One individual noted that the Coalition’s 679 Saba Azeem, Lauren Gould, Erin Bijl, and Joelle Demmers, After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija, (Utrecht: Colophon, 2022), 72. 680 Witness 7A (name withheld). Interview with Al Ghad and PAX, 14/03/2021 in Azeem, Gould, Bijl, and Demmers, 2022. 681 Witness 7C (name withheld). Interview with Al Ghad and PAX, 06/04/2021, in Azeem, Gould, Bijl, and Demmers, 2022. 682 Witness 7B (name withheld). Interview with Al Ghad and PAX, 01/04/2021 in Azeem, Gould, Bijl, and Demmers, 2022. 211 [w]ork was very good. When the planes came to bomb, we were not afraid because their targets were accurate. They were targeting ISIS. We were happy. We were not afraid, but when Iraqi or Iranian planes came, for example, we were afraid because they would target randomly.683 This perspective, grounded in the belief that the Coalition’s targeting was informed by robust intelligence, surveillance and reconnaissance procedures and advanced technology, permeated throughout communities in Iraq and beyond in Syria. Many civilians expressed the belief that this combination of factors, in comparison to other actors in the region, meant that Coalition strikes would be ‘very precise and they would not hurt innocent victims.’684 Yet, for the residents of Hawija, Abdullah included, the night of June 2-3, 2015, would change everything. The day of June 2, 2015, dawned a bright, sunny, and sweltering summer day in Hawija with temperatures reaching well over 50 degrees Celsius in the heart of the city. As the day dawned, those who had managed to retain employment headed to their workplaces– many in the city’s industrial district. In addition to the businesses in the area, the district was surrounded by residential neighbourhoods, largely housing the families of those that worked in the area, as well as government buildings, community infrastructure, electricity substation, and several school’s serving the children from the residential areas. As darkness fell, the oppressive heat lingered, and many families chose to sleep on the roof of their homes or outside where it was slightly cooler. Others stayed inside but set up their beds near open windows to try to sleep. Abdullah’s first wife and her children took their bedding to the roof of their house, while his second wife took the space at the top of the house indoors. After reading and praying the Quran, just before midnight, Abdullah went to the space at the top of the house alongside his second wife to sleep.685 He heard a plane circling overhead. Unbeknownst to Abdullah, just minutes earlier two Dutch F-15s had been given permission to target a collection of three buildings in the industrial neighbourhood, just 250 meters from where they slept.686 These buildings had been 683 Witness 7D (name withheld). Interview with Al Ghad and PAX, 08/06/2021 in in Azeem, Gould, Bijl, and Demmers, 2022. 684 Witness 7E (name withheld). Interview with Al Ghad and PAX, 09/06/2021 in Azeem, Gould, Bijl, and Demmers, 2022. 685 Saba Azeem, Lauren Gould, Erin Bijl, and Jolle Demmers, After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija (Utrecht: Colophon, 2022), 72. 686 The Ministry of Defence, “Wob-besluit Defensie over aanvullend onderzoek Defensie burgerslachtoffers Hawija”, Letter (BA202001976), February 17, 2020, in Saba Azeem, Lauren Gould, Erin Bijl, and Jolle Demmers, After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija (Utrecht: Colophon, 2022). 212 identified by Coalition intelligence as an ISIS factory for building Vehicle-Based Improvised Explosive Devices (VBIEDs).687 After significant monitoring of the buildings and militant activities around them, a strike was planned and approved by Coalition leadership using the Target Development process. Shortly after midnight, the planes released their munitions and hit the target accurately. On impact, they ignited an estimated 18,000 kilos of TNT stored in the factory to manufacture the car bombs, resulting in a large secondary explosion. The blast, reaching 4.3 on the Richter scale, left an eleven-meter-deep crater where the factory had been. The impact of the shockwave reached a diameter of more than five kilometres and the explosion was heard more than 50 kilometres away in Kirkuk.688 250 metres away from the destroyed factory, Abdullah woke up in pain. I felt that the Day of Judgment had come because of the horror of the situation as the blast threw me a distance of five to six meters. My wife was sleeping beside me, but I could not see her because of the white smoke, and shrapnel landed on my bed in which I should have slept. I would have been cut into two halves if I had slept there [...] I went to my family on the first floor. Bricks and walls fell on them, I shouted and cried out loud, “Come and save my children.” I could not remove the bricks and rubble that fell on my family. The rubble was too big[.] My older son called me: “My father, my father, I did not die. Save me.” Bricks fell on his leg. [He] pulled himself out with difficulty. My daughter also called me saying, “Dad, I did not die, please save me.” A neighbour came and helped me to remove the rubble. [My daughter] was hurt from her waist and below.689 At the moment of impact, Abdullah’s wives Khamisa and Sajidah, his daughter Amal, and his sons Rasheed, Ibrahim, and Mahmoud were killed immediately. His 11-year-old daughter, Yamamah, died later that morning in a hospital in Mosul. Among her last words, she asked her father about her mother and her eight-month-old brother, Mahmoud. Abdullah told her they were fine, and she would see them soon. She passed away in his arms. Of Abdullah’s family of ten, 687 Ibid. 688 Jannie Schipper and Kees Versteegh, “Hoe Nederland met ondeugdelijke informatie de strijd met IS aanging,” NRC, November 27, 2020; Georgia Edwards and Megan Karlshoej-Pedersen, “Survivors of Hawija call for justice, two years after Dutch finally admitted role in 2015 catastrophe,” Airwars, November 4, 2021; Head of Hawija Department of Water Resources, key informant interview 15 September, 2021, Hawija, Iraq. 689 Ibid. 213 only he and two of his children survived.690 Figure 5.1 below provides photographs of Abdullah’s family members killed in the attack prior to their deaths. Figure 5.1: Abdullah’s Family Members Killed in Airstrike, 2-3 June 2015691 Sajidah, spouse Khamisa, spouse Yamamah, daughter 11 years old Rasheed, son 7 years old Ibrahim, son 6 years old Amal, son 4 years old Mahmoud, son 8 months old In the aftermath of the strike, Abdullah lost not only his family, but also his home, his car, his livelihood, and his peace of mind. He says he and his children suffer from severe psychological trauma.692 In addition to these struggles, making ends meet to support himself and remaining children is nearly impossible due to the impact the blast had on business and employment in the city. The only employment available to him is for a daily wage and often he will go 5 or more days without a job to do.693 There is no stability for Abdullah in Hawija, but he has no resources to leave either. Abdullah’s story is one of many tragedies caused by the airstrikes on June 2-3, 2015. Today, estimates of the civilian casualties caused by this strike on the Hawija industrial district range from 70 to 170, with several hundred more injured or displaced.694 The accuracy of these 690 Ibid. 691 Ibid, 74. 692 Ibid, 73. 693 Ibid. 694 Witness 7F (name withheld). Interview with Al Ghad and PAX, 23/05/2022 in in Azeem, Gould, Bijl, and Demmers, 2022. 214 numbers remain unclear and are likely to be higher as internally displaced people living in the area at the time of the strike were not registered with the city.695 Their fates and identities remain largely unknown.696 The number of injured civilians is also difficult to pinpoint as ISIS controlled the Hawija General Hospital and most healthcare facilities in the facility at the time of the strike. Many were denied treatment if they had not sworn allegiance to ISIS, others had to wait long hours to only receive emergency first aid, often without anaesthesia.697 Many who were left untreated in the aftermath of the strike, now experience severe disabilities which could have been avoided with appropriate treatment. The reverberating effects of this strike are similarly extensive. As one Hawija resident who visited the industrial neighbourhood the day after the strike noted, ‘When we went out to the industry neighbourhood, we saw the industrial neighbourhood destroyed. All of it from shops to stores to factors, including my own, they were reduced to ashes.698 Reports show that an estimated 6,000 houses and 1,200 shops and businesses were damaged, several government buildings and infrastructure facilities were destroyed, “including the civil defence department, an electricity substation, and a number of schools.”699 In addition to these factors, until recently it has remained unclear the steps which were taken by Coalition forces to mitigate civilian harm associated with this strike, and what steps were taken to respond to the incident in its aftermath. Affected civilians lacked the information and resources they needed to recover as a result. The subsequent section explores the strike and primary sources documenting the target development, execution, and response to better understand the key points of decision, opportunities for error, and thinking behind the post-harm response. In doing so, I evaluate the ways in which the Coalition’s mitigation and response approach interacted with civilian expectations for legitimate military action, accurate targeting, and harm response processes to evaluate overall effectiveness of the response approach in this case. 695 Saba Azeem, Lauren Gould, Erin Bijl, and Jolle Demmers, After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija (Utrecht: Colophon, 2022), 10. 696 Ibid, 16. 697 Ibid. 698 Witness 7F (name withheld). Interview with Al Ghad and PAX, 23/05/2022 in Azeem, Gould, Bijl, and Demmers, 2022. 699 Saba Azeem, Lauren Gould, Erin Bijl, and Jolle Demmers, After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija (Utrecht: Colophon, 2022), 10. 215 Reporting In the immediate aftermath of the air strike on the Hawija industrial district, the first report of potential civilian harm was raised internally by the Dutch Air Force pilots who carried out the mission. Immediately after an airstrike, pilots involved in the mission undertake a ‘control flight’ over the area targeted to report on the accuracy of the strike, resulting damage, and assess and advise on whether follow-on strikes (in the case some militants or high-priority targets were missed in the initial strike) may be required.700 The information collected, along with information and imagery collected by intelligence, surveillance and reconnaissance (ISR) units is used to complete a Battle Damage Assessment (BDA).701 During the control flight, the F-16 pilots involved in the strike reported to the Coalition and the Dutch Ministry of Defence that a whole district of Hawija had been destroyed.702 Two days later, US Lieutenant General Hesterman stated that ‘we haven’t seen any evidence of civilian casualties so far, but we’ll conscientiously look into it as we do with every allegation.’703 Outside of military channels, news of the magnitude of the strike spread through the media rapidly. Following social media posts by survivors in the hours after the strike and local breaking news coverage by Iraqi regional outlets, both Al-Jazeera and Reuters reported on the destruction the following morning, featuring first-hand accounts from survivors.704 The number of casualties remained unclear. While some Iraqi news sources and Reuters estimated the number to be approximately 70 casualties based on conversations with residents and security forces, others expected the number to be higher due to the number of unregistered IDPs living in the area 700 British RAF Officer 7A (name withheld). Interview with author, 21/03/2022. 701 According to several military officers who have served in targeting or fire support command roles, a Battle Damage Assessment is a procedure carried out in the aftermath of any operation to capture information in the immediate aftermath of an operational event that may be attributable to Coalition forces. The process is standardized, and largely similar across NATO allied nations. During the BDA process, satellite imagery, surveillance information, feedback from pilots (if applicable) and damage assessments carried out on the ground by partner forces will be combined to analyze potential risk factors that may have emerged from the operational event. If serious damage is evident or there is a high likelihood of civilian casualties having resulted, the teams involved in the strike are tasked with producing a detailed brief, also known as a ‘Board’ or ‘Storyboard’ laying out the intelligence, decisionmaking and approval process, weaponeering decisions and CIVCAS assessments for a Command team who will make decisions on next steps. 702 CENTCOM, “Al Hawijah ISIL VBIED Factory strike, 03 June 2015”, USCENTCOM FOIA 19-0014L, The New York Times, December 18, 2021. 703 John W. Hesterman III, “Department of Defense Press Briefing by Lt. Gen. Hesterman via Telephone from the Combined Air and Space Operations Center, Southwest Asia in the Pentagon Press Briefing Room,” U.S. Department of Defense, June 5, 2015, https://www.defense.gov/News/Transcripts/Transcript/Article/607056/. 704 Archived media reports are accessible through the New York Times Civilian Casualty files, https://int.nyt.com/data/documenttools/c-6-2-15-iraq/055d09f8f8b256a4/full.pdf. 216 whose bodies remained trapped under the rubble.705 The day after the strike, the Head of the Kirkuk Provincial Council estimated that 150 civilians had died in the airstrike.706 Intelligence and public affairs teams monitoring the media reporting of the incident documented these external reports in their subsequent assessment of the incident.707 This information was included in a First Impression Report (FIR) undertaken by the Coalition – an internal report which documents available information about potential civilian casualty (CIVCAS) incidents, including who, what, when, and where, and “includes any immediately available information (e.g., BDA, Weapon Sight Video (WSV)/Full Motion Video (FMV), medical treatment, media engagement, whether a Category I facility was affected by strike, or other collateral concerns). This information is used to make decisions as to whether the incident should be forwarded for further assessment and investigation.708 Shortly thereafter, a classified BDA was completed, notifying the Dutch Ministry of Defence of ‘unintended collateral damage.’709 The FIR was forwarded for further assessment on this basis. Although public media reporting was documented in the BDA and FIR and included in subsequent assessments, neither the Dutch government, nor the Coalition provided a formal mechanism or procedure for what the Coalition refers to as ‘third party reporting’ by local government or survivors and families to report individual cases of civilian harm that resulted from the strike. In fact, until 2019, the Dutch government did not formally acknowledge their role in the strike, leaving survivors and families unsure of who was responsible, and how to seek support. Without information on which nation was responsible and with no Coalition representatives on the ground, families were left with no clear way to contact the Dutch government or the Coalition regarding the harm that came to them and their family members. 705 “Airwars assessment CI070,” Airwars, https://airwars.org/civilian-casualties/ci070-june-3-2015/; Reuters, “Air strike in north Iraq killed dozens, including civilians, residents say,” Reuters, June 4, 2015. 706 The evidence to support these numbers remains unclear. Reuters, “Air strike in north Iraq killed dozens, including civilians, residents say,” Reuters, June 4, 2015. 707 CENTCOM, “Al Hawijah ISIL VBIED Factory strike, 03 June 2015”, USCENTCOM FOIA 19-0014L, The New York Times, December 18, 2021. 708 Ibid. 709 Dutch Ministry of Defence, “Feitenrelaas transparantie burgerslachtoffers bij lunchtaanvallen,” Briefing, (27 925 nr.663) November 5, 2019, in Saba Azeem, Lauren Gould, Erin Bijl, and Jolle Demmers, After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija (Utrecht: Colophon, 2022). 217 Legal teams currently representing several families affected by the strike also noted that, at the time, one of the only available ways to contact the Coalition was through a generic email inbox for the Coalition’s Public Affairs team. Yet, even reaching out in this way posed significant barriers. Many survivors and families did not speak, read, or write in English. Further, due to the magnitude of the strike and the damage inflicted on family documentation, resources, and community infrastructure, few had any formal documentation to provide, could not afford to employ a lawyer or a translator to help them navigate the process, or didn’t have reliable access to a computer or internet. Those that were able to report the harm their families experienced in this way often did not receive responses for months, only to be told repeatedly their report was ‘pending.’710 Thus, in the seven years since the strike, only 52 formal reports of specific cases of civilian harm resulting from the strike have been submitted to the Dutch government. All have done so with the assistance of legal teams and translation support.711 While internal reporting is demonstrated to be required, encouraged, and robust within CJTF-OIR structures, its impartiality and independence remains in question. Thus, without further documentation as to chain of command influence in the reporting process, whistleblowing procedures, and safeguarding protections for reporters (both internal and external) it is difficult to assess the reliability of information provided during the reporting stage. Finally, while the internal reporting process seems to be thorough, it lacks transparency both internally and externally. From available documentation, it does not seem those individuals involved in the reporting process were kept updated as to the progress of the report. Further, despite drawing heavily on external media reporting, no media sources were informed of the progress of the report, nor was there any evidence that any affected civilians or local authorities were involved, informed, or consulted. Initial Assessment Following the recommendations of the FIR, an Initial Assessment, including a CIVCAS Credibility Assessment Report (CCAR) was undertaken by the Coalition. The purpose of an Initial Assessment moves beyond the information contained in the FIR, to 710 Witness 7C (name withheld). Interview with Al Ghad and PAX, 06/04/2021 in Azeem, Gould, Bijl, and Demmers, 2022. 711 Saba Azeem, Lauren Gould, Erin Bijl, and Jolle Demmers, After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija (Utrecht: Colophon, 2022), 103. 218 [d]etermine whether additional inquiry into the credibility of an alleged CIVCAS incident is necessary. The purpose of the IA is to identify the date, time, and place of the allegation…scan for potential coalition strikes, collate relevant information, and recommend whether a CCAR should be tasked.712 The IA phase of the response encompasses both the IA process itself, and the undertaking of a CCAR where advised. Based on primary documentation obtained by Freedom of Information Act (FOIA) requests, the majority of data collection at this stage of assessment included internal analysis of available information, including the ‘Target Pack’, the impact video of the strike, PowerPoint presentations provided at BDA update meetings following the strike, and documentation of the decision making and approval process of the strike package in the lead up to the event.713 While the documentation does not provide any clear conclusions from this phase, we can elucidate from the documentation that the IA found civilian casualty reports from the strike were credible and a CCAR was recommended. Shortly thereafter a CCAR was launched by the Combined Air Operations Centre (CAOC) based on the IA recommendation and a classified report was produced. In it, the CAOC confirms that the ‘allegation date, location and target description corresponds to a deliberate strike executed on 2 June, 2015.’714 It notes that the VBIED factory was a ‘single-use facility’ that was a legitimate military objective and lawful object of attack.715 It also confirms that the target was validated and approved for deliberate targeting by the Commander of CJTF-OIR on 29 May 2015 and prioritized for a ‘paper strike’ approval process to ensure the strike could be carried out in the coming days.716 Further, it explicitly noted that in line with the Collateral Damage Estimation (CDE) methodology in use at the time of the strike, ‘possible secondary explosions caused by the contents of the target buildings cannot be accurately considered for CDE calculations’ within the targeting process.717 Ultimately, the CAOC found that the ‘allegation of civilian casualties (CIVCAS) resulting from a secondary explosion from a coalition airstrike on 2 June 2015 is 712 CENTCOM, Combined Joint Task Force - Operation Inherent Resolve (CJTF-OIR) Policy for Reporting and Responding to Civilian Casualty Incidents, 09 May 2018. 713 CENTCOM, “Al Hawijah ISIL VBIED Factory strike, 03 June 2015”, USCENTCOM FOIA 19-0014L, The New York Times, December 18, 2021. 714 Ibid. 715 Ibid. 716 Ibid. 717 Ibid. 219 credible.’718 While it noted that ‘the number of civilian or ISIL casualties caused by the secondary explosions cannot be confirmed at this time’ it was acknowledged that the allegations of up to 74 civilian casualties, made by open sources including Reuters and Al Jazeera, were likely.719 CCAR’s are limited to findings of credibility and causation– issues of collateral damage, culpability, or criminal liability of a unit or service member are not assessed at this phase.720 In cases where the CCAR reveals information that a non-US Troop Contributing Nation (TCN) of the Coalition, the Senior National Representative (SNR) of the TCN concerned will be notified.721 Upon notification, the TCN concerned can, if desired, conduct their own review of a CIVCAS allegation involving their members.722 In this case, the Coalition proceeded with the CCAR rather than the TCN. On 15 June 2015, two weeks after the attack, the then-Dutch Minister of Defence, Jeanine Hennis-Plasschaert, received a classified copy of this CCAR report from CENTCOM, documenting the credibility of civilian casualties from the strike and the Dutch military’s responsibility.723 However, no information regarding this assessment was provided to survivors or witnesses. Based on interviews conducted during this study and those conducted by Al-Ghad during the PAX study of this airstrike, analysis of available documentation and civilian perceptions of the initial assessment and CCAR in this case indicated partial effectiveness. While the incident of civilian harm was taken seriously by CJTF-OIR forces, including in the minutes immediately following the strike and secondary explosions, the affected community, including the individuals interviewed during this study, note that there was little communication with them or the local authorities as to the assessment process or how the civilian harm caused by the incident would be assessed. While some local authorities were aware of the CCAR due familiarity with past cases, no guidance was provided directly to the affected community. 718 Ibid. 719 Ibid, Chris Woods, “Minister concealed Hawija civilian deaths for political gain,” NRC, November 5, 2019. 720 CENTCOM, Combined Joint Task Force - Operation Inherent Resolve (CJTF-OIR) Policy for Reporting and Responding to Civilian Casualty Incidents, 09 May 2018. 721 Ibid. 722 Ibid. 723 Chris Woods, “Minister concealed Hawija civilian deaths for political gain,” NRC, November 5, 2019. 220 Additionally, while we know from the declassified documentation related to the strike that the CCAR was passed to an internal authority for further investigation, at no point was it indicated that possible violations of law were systematically explored, with some sections of the CCAR and subsequent investigation constrained by the path dependence imposed by the ‘secondary explosions’ exception noted earlier. Finally, while the assessment and CCAR were completed in a timely manner and communicated rapidly to the responsible parties, this information was not shared publicly, nor specifically with the affected community. This lack of transparency at the assessment stage led to long-term secrecy concerning the responsible parties, making it difficult and at times impossible for affected families to be appropriately informed of progress in the subsequent investigation, or prepare claims to submit to the responsible party in a timely manner to improve their living situation. Investigation According to CJTJ-OIR guidance, investigations into civilian casualty incidents are initiated by the ‘unit that conducted the CCAR or a higher commander if they determine that further information is needed to document the underlying facts or to answer questions not fully addressed by the CCAR.’724 These investigations are meant to inform future training, modification of policies and personnel actions. An investigating officer (IO) is appointed from the command that conducted the CCAR, so long as they did not have a decision-making or advisory role in the strike(s) that led to the CIVCAS allegation. Investigations are to be thorough and impartial, consider multiple perspectives of an incident, and incorporate the results of other inquiries, including CCARs, commanders’ inquiries, national investigations conducted under relevant service or national policies, criminal investigations, and independent investigations conducted by NGOs.725 All investigation findings and recommendations will be incorporated into a written Report of Investigation (ROI).726 In the Hawija case, the declassified ROI documents an ‘informal’ investigation that was authorized by CENTCOM concerning the Hawija attack. An Investigating Officer was appointed on 21 July 2015 and the findings and recommendations required for the ROI were completed on 19 August 2015.727 724 CENTCOM, Combined Joint Task Force - Operation Inherent Resolve (CJTF-OIR) Policy for Reporting and Responding to Civilian Casualty Incidents, 09 May 2018. 725 Ibid. 726 Ibid. 727 CENTCOM, “Al Hawijah ISIL VBIED Factory strike, 03 June 2015”, USCENTCOM FOIA 19-0014L, The New York Times, December 18, 2021. 221 On 20 August 2015 a classified memorandum documenting the findings and recommendations of the investigation was sent to the Commanding General of the United States Army Central at Camp Arifjan in Kuwait and an Executive Summary of the investigation report was completed by the Investigating Officer on 30 September 2015. In the declassified ROI, the Investigating Officer notes that after a ‘careful review of all available evidence,’ they found that ‘it is probable that the attack resulted in civilian casualties but that the engagement was properly conducted under the Laws of Armed Conflict and the applicable Rules of Engagement.’728 However, the Investigating Officer noted that despite the legality of the deliberate strike, there were concerning elements which should be addressed. Notably, the Investigating Officer presents documentation indicating that intelligence officials from multiple agencies, including the Central Intelligence Agency, flagged that while the facility was likely to be a VBIED factor and affiliated with ISIL based on human intelligence (HUMINT) sources, the potential for collateral damage was notable “based on the adjacent residential neighbourhood.”729 Further, this risk seemed to be recognized and understood by those involved in Target Development. This risk emerged again when the Target Package and weaponeering plan was initially run through the CDE methodology. The analysis of the strike plan came back with a CDE level of high risk for civilian casualties (CDE 5 HIGH), however for a strike to be ‘executable’ under CJTF-OIR rules of engagement (ROE), ‘the weaponeering solution needs to be a CDE LOW call due to the non-combatant casualty cut-off value (NCV) of zero,’ meaning the Coalition would not approve or execute a strike where the CDE methodology assesses any risk of civilian casualties.730 As the US Air Force Chief of Targets of 609 AOC/ISRD Targets at the time of the strike noted in their statement to the Investigating Officer, ‘if our current solution yields a CDE 5 High, our targeteers will re-weaponeer using weapons with a smaller collateral effects radius in order to get a lower CDE call.’731 According to the same individual, the Target Development team planned the strike for night-time thereby decreasing the likelihood of civilian presence in the industrial hour compared to business hours and then re-weaponeered using a different (redacted) weapons 728 Ibid. 729 Ibid. 730 Ibid. 731 Ibid. 222 package that employed delayed fusing to mitigate potential incidental damage. This re-weaponeering resulted in a CDE level of 5 LOW. However, as one respondent to the investigation noted, [a]ll of these details were all completely irrelevant in the face of what happened afterwards. Based on CJCSI 3150.01A, p.D-6, Enclosure D, it states “The CDM does not account for secondary explosions. Collateral damage due to secondary explosions (i.e., weapons cache or fuel tanks for military equipment) cannot be consistently measured or predicted. Commanders should remain cognizant of any additional risk due to secondary explosions. My targeteers actually spent hours working and reworking this target just to make the CDE ‘executable,’ which has been standard practice in this conflict.732 CDE concerns compete directly against the desired kinetic effects, so we are typically asked to destroy the target as much as possible within the restrictions of CDE. I remember thinking it seemed a bit foolish to re-weaponeer the structure with [redacted] which are not the right tool for the job. All of this was to achieve a [redacted] when there were several collateral objects in close proximity to the target…and the target was a VBIED facility. In the meantime, we need to provide an executable option so that a choice could be made either way. I did not find any fault with this logic, as ultimately the decision rests with the C[ombatant] C[ommander] to make the decision. I do not think that anyone could have predicted the magnitude of the explosion and effects in the surrounding neighbourhood. Secondary effects are nearly impossible to estimate with any level of accuracy, especially without knowing the quantity and type(s) of explosive material present at the site. That being said, I did not think it was a reasonable assumption to think that there would not be any collateral damage based on the knowledge that the target was a VBIED factory with collateral structures so close to the site.733 Another member of the same Target Development Cell raised similar concerns, noting that, while the target did not meet ‘sensitive target criteria’ which would have excluded it from a strike based on chemical, biological, radiological, or environmental hazards, CAT 1 No-Strike Entities, and other situations that can drive a casualty count higher than then NCV, the only reason it did not meet these criteria is because the CDE does not account for secondary explosions resulting from the strike.734 The individual noted however, that ‘based on the fact that the intelligence stated that this was a VBIED facility and the significant amount of collateral structures in the area, one might have reasonably concluded that there might be civilian casualties as a result of the strike.’735 When asked how the process might be improved to 732 Emphasis added by author. 733 CENTCOM, “Al Hawijah ISIL VBIED Factory strike, 03 June 2015”, USCENTCOM FOIA 19-0014L, The New York Times, December 18, 2021. 734 Ibid. 735 Ibid. 223 mitigate collateral damage, the individual noted, ‘[i]n cases where intelligence indicates a greater potential for secondary explosions, more consideration may be given to seek additional analysis, to seek strike approval through the [redacted] or to not strike the target if it were not of proportionally significant value.’736 According to the investigation, the explosions resulting from the initial strikes and the secondary explosions caused damage to structures ‘beyond the facility outline’ of the VBIED factor with ‘post-strike assessments indicat[ing] that in the area surrounding the blast 111 buildings were confirmed destroyed, 75 buildings sustained severe damage, 86 buildings sustained moderate damage, and 160 buildings sustained light damage. Additionally, in a residential area located approximately 500 feet north of the target area 25 buildings were confirmed destroyed, 52 buildings sustained severe damage, 68 buildings sustained moderate damage, and 103 buildings sustained light damage.737 It also referenced the shockwave and explosion documented by the Head of the Hawija Department of Water Resources and Airwars, noting a ‘visible shockwave extending beyond 750 feet from the target and an explosion that extended to 400 feet from the target.738 Ultimately, based on the secondary explosions exception in the CDE methodology, the Investigating Officer concluded that the target development process and CDM for the strike were both legally and doctrinally sound. However, they note that while this variable cannot be accounted for in the CDM due to the difficulty assessing the type and quantity of explosives stored, the knowledge that the target is an IED or VBIED facility based on reliable HUMINT should be factored into the target development and approval process as it could be ‘reasonably assumed that an attack on these facilities will cause secondary explosions to some degree.’739 The report therefore arrives at dual, yet competing conclusions. While the strike is considered to be legally and doctrinally sound based on the information regarding military necessity, proportionality, and distinction reigning at the time of the strike, ultimately the strike caused significant direct, indirect, and reverberating civilian harm to the people of Hawija as a result of that very doctrine. 736 Ibid. 737 CENTCOM, CJTF-OIR Daily Battle Damage Assessment (BDA) Update, 5 June 2015, released by New York Times, December 21, 2021. 738 Exhibit 15- CAOC CIVCAS Credibility Inquiry 2 June 2015; Exhibit 2- Strike 2 June 15 VBIED Factory Impact video, CENTCOM, “Al Hawijah ISIL VBIED Factory strike, 03 June 2015”, USCENTCOM FOIA 19-0014L, The New York Times, December 18, 2021. 739 CENTCOM, “Al Hawijah ISIL VBIED Factory strike, 03 June 2015”, USCENTCOM FOIA 19-0014L, The New York Times, December 18, 2021. 224 In this case, the credibility of the report did not need to be rigorously investigated due to the widespread coverage of the incident by media, NGOs, and governmental entities. Further, declassified documentation notes that the formal investigation into the incident by CJTF-OIR authorities was completed in a timely manner. However, while a wide breadth of personnel internal to CJTF-OIR were interviewed as part of the investigation and extensive internal documentation was obtained and reviewed, the investigation did not note any information, documentation, or interviews being collected from external sources other than international media reports. No site visits or witness interviews outside of Coalition personnel were undertaken as part of the investigation. During this time, no communication was maintained between the Coalition and affected survivors and families, with multiple interviewees noting they have never heard from the Coalition at all. The declassified final report is clear, comprehensive, and well documented, despite the lack of site visits and inclusion of external sources. It lays out a comprehensive and thorough investigation process and expectations for the Investigating Officer to follow. It appears these were followed rigorously throughout the process, with evidence consulted, findings, and recommendations clearly outlined. While the investigation appears thorough and was completed in a timely manner, a significant barrier to high effectiveness in this stage was the lack of transparency. Like the IA process, while the investigation was completed by the Coalition headquarters staff, upon its conclusion its contents were passed to the TCN responsible for the incident. The Netherlands did not make the information in the report public, nor did they publicly acknowledge their responsibility for the incident until 2019. According to survivors and families affected by the incident, no communication during this time was ever received from either the Coalition or the Netherlands. Consequence Management, Compensation and Amends Although the CJTF-OIR guidance regarding Consequence Management (CM) notes that CM actions may run concurrently with reporting and investigation procedures explicated above this is relatively rare in contemporary practice. While ex gratia payments were commonly disbursed shortly after incidents during the Afghanistan and Iraq wars despite investigations not being formalized or completed, under CJTF-OIR and other contemporary operations, CM procedures 225 tend to be dependent on the completion of a full investigation and the recommendations that result from it. According to the CJTF-OIR, ‘consequence management’ is intended to mitigate the impact of CIVCAS on the civilian population, the international community, and the mission in order to mitigate the negative impact civilian casualty incidents have on these stakeholders, operational effectiveness, and mission success.740 They note that these activities can occur at all levels and “may include interaction with the family or local community, local authorities, Iraqi Security Forces, Government of Iraq, media, Non-Governmental Organizations, and other entities” but that engagement and decisions related to CM where civilian casualties have occurred remains a ‘matter of national discretion.’741 The role of the Coalition in this stage is therefore minimal as national authorities responsible for the strike must make decisions regarding this stage.742 The role of the Coalition is limited in this regard to tracking and monitoring the issuance of ex gratia payments (also known as ‘condolence payments’ or civilian harm compensation).743 With the responsibility for consequence management falling to individual TCNs which are found responsible for strikes resulting in civilian harm, all decisions following the conclusion of the investigation process fell to the Dutch government. In the aftermath of the investigation, the Dutch Minister of Defence was informed of its conclusions, however, public parliamentary records document significant efforts by the Minister to keep the outcome of the investigation hidden. As a result, the Netherlands did not publicly acknowledge or confirm responsibility for the Hawija strike until November 2019.744 When the Dutch Minister of Defence confirmed that the Netherlands carried out the attack, the number of civilian deaths was again contested. Despite the findings of the 2015 CCAR from CENTCOM and the 2015 ROI from CENTCOM documenting a minimum of 74 ‘credible’ casualties, as well as a list of 170 (unconfirmed) civilian deaths based on on-the-ground casualty tracking undertaken by the ICRC shared with the Dutch Embassy in August 2015, and a 2015 UNAMI Protection of Civilians report referring to the Kirkuk Provincial Council’s estimate of 150, the Dutch Ministry of Defence reported that the 740 CENTCOM, Combined Joint Task Force - Operation Inherent Resolve (CJTF-OIR) Policy for Reporting and Responding to Civilian Casualty Incidents, 09 May 2018. 741 Ibid. 742 Ibid. 743 Ibid. 744 Minister of Defence, “Fighting International Terrorism,” Letter (27 925, nr. 670) November 4, 2019, 3. 226 approximately 70 casualties documented were not part of CENTCOM’s official body count and could not be verified.745 They explained that the CENTCOM investigation could not assess how many of the casualties that resulted from the strike and secondary explosions were civilians or individuals affiliated to ISIS. In a revised statement, the Defence Minister noted several reasons for this, including the lack of on-the-ground evidence collection undertaken during the investigation, incomplete population registers, and the difficulty distinguishing between ISIS fighters and civilians after the fact.746 Based on available documentation, these statements are accurate– both CJTF-OIR and UNAMI officials note that the security situation prevented on-the-ground consultations with affected families or the local community, local authorities, NGOs or media. The difficulty verifying the number of civilian casualties also impacted the Dutch government’s approach to CM procedures. As pressure from the Dutch population, the affected community, and NGOs grew, the Dutch government sought to balance the moral and strategic requirement to provide compensation to manage domestic and international backlash, but also how to manage the uncertainty of how to verify the credibility of civilian harm claims. While the security situation still prevented an on-the-ground operation to verify claims, the reality of life under ISIS also had a significant impact on the ability to verify cases of harm. Civilians who did not pledge allegiance to ISIS were frequently denied official documentation by ISIS officials, including death certificates. Further, any documents that were issued by ISIS were and still are not accepted by any official authorities in Iraq. If a civilian is in possession of an ISIS-issued document, the said civilian is often seen as an ISIS member or supporter…[Further], getting legal documentation in Iraq, especially for those who were displaced or lived under ISIS occupation remains a challenge.747 For example, the Hawija General Hospital was controlled by ISIS at the time of the strike, where medical care was priorities for ISIS fighters, their families, and supporters. Many were denied treatment. No official hospital records from the Hawija General Hospital have survived from the time of the strike due to ISIS control of the hospital. While some survivors went to Mosul 745 Ibid. 746 Dutch Ministry of Defense, “Brief aan de tweede kamer,” Briefing (707), March 24, 2020. 747 UNHCR, “Iraq: IDPs – Civil and Identity Documentation (Jan-Dec 2020),” Brief (UNHCR: 2020). 227 General Hospital almost 200 kilometres away, this hospital was also under ISIS control and care was not guaranteed. Others sought informal care at doctors’ homes around Hawija and its surrounding villages or from pharmacists, where no official medical documentation could be provided. Without this formal documentation of civilian deaths and injuries, verifying credible claims for individual compensation, particularly with the scale of the damage caused by the Hawija strike, was thought to be an impossible undertaking. The Dutch government opted for a community level compensation programme rather than initiating a process for the submission of individual compensation claims. In December 2020, the Dutch government awarded the International Organization for Migration (IOM) over $3.6 million USD and the UN Development Program over 1.7 million USD for ‘community-level rehabilitation for the people of Hawija who were impacted by the Dutch 2015 airstrike, noting that the programming to be undertaken would be carried out in direct consultation with the community.748 However, the projects themselves and the processes associated with them currently lack transparency. According to interviews with local government officials, neither the city nor the NGO coordination office was aware of these projects in the Autumn of 2021, despite the Dutch MOD informing the Dutch Parliament that both projects were underway.749 A further update to Parliament occurred in November 2021, where it was noted that ‘two end-user committees– advisory bodies that consist of persons representing the Hawija community that should benefit from these projects– had been established,’ however no local community leaders or City authorities were aware of these committees.750 Similarly, the IOM project was said to have begun in May 2021, with the Dutch MOD noting that ‘local authorities were closely involved in every step’...and ‘multiple focus group discussions (FGDs) and key informant interviews (KIIs)’ were carried out with the local community to inform the subsequent repair work to be undertaken in the industrial district.751 However, neither City authorities, the NGO 748 Dutch Minister of Defence, “Brief from the Minister of Defence,” Letter (27 925, no. 766), December 15, 2020.. 749 Dutch Minister of Defence, “State of affairs of the compensation projects in the community of Hawija,” Letter (27 925, no. 862), November 5, 2021, in Saba Azeem, Lauren Gould, Erin Bijl, and Jolle Demmers, After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija (Utrecht: Colophon, 2022). 750 Hawija Department of Electricity, meeting 16 November 2021, Hawija, Iraq; Mayor of Hawija, NGO Coordinator and mukhtar, meeting 17 November 2021, Hawija, Iraq in Azeem, Gould, Bijl, and Demmers, 2022. 751 Dutch Minister of Defence, “State of affairs of the compensation projects in the community of Hawija,” Letter (27 925, no. 862), November 5, 2021, in Saba Azeem, Lauren Gould, Erin Bijl, and Jolle Demmers, After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija (Utrecht: Colophon, 2022). 228 coordination office or local community leaders were aware of these activities, nor were civilians in the area.752 At present, there remains no visible evidence in the industrial neighbourhood of any of the planned work– including rubble clearance and demining– having been initiated.753 In their feedback regarding the effectiveness of the compensation process, Hawija residents impacted by the strike highlighted several factors that influenced their perception of the ineffectiveness of the Dutch government’s approach. All interviewees highlighted the lack of acknowledgement and lengthy timescales as important and influential factors in their perception of the Netherlands and the Coalition’s legitimacy in the aftermath of the strike. Many expressed anger and disappointment that it took the Dutch government four years to publicly acknowledge their responsibility for the strike, despite having had information confirming this in the immediate aftermath of the incident. This lack of acknowledgement in the aftermath of the strike has left a feeling of mistrust amongst civilians and local authorities when interacting with the Dutch government, with one individual expressing that they feel ‘the Dutch government was trying to avoid taking responsibility because of the number of lives lost and the financial compensation that would be owed.’754 Others expressed that the acknowledgement of responsibility in 2019 was a case of ‘not enough after so many years of hardship’ noting people’s ‘anger and pain had only grown with the silence and lack of support.’755 These sentiments were echoed when asked about the timeliness of the community-level compensation projects. Several respondents noted not only that ‘waiting seven years for the Dutch government to care only made the suffering greater’ but also expressed that the amount of funds allocated was disproportionate to the level of harm and property damage experienced by the community. Interviewees also expressed substantial disappointment with the structure of the compensation program that is being undertaken by the Dutch government. While many recognize the potential benefits for the city of Hawija, they note that survivors, their families, and community members were not consulted in developing the programs. Had they been, most interviewees noted they 752 Mayor of Hawija, NGO Coordinator and mukhtar, meeting held by PAX 17 November 2021, Hawija, Iraq in in Azeem, Gould, Bijl, and Demmers, 2022. 753 Saba Azeem, Lauren Gould, Erin Bijl, and Jolle Demmers, After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija (Utrecht: Colophon, 2022), 105. 754 Witness 7H (name withheld). Interview with author, 02/11/2022. 755 Witness 7I (name withheld). Interview with author, 05/11/2022. 229 would have fought for individual financial compensation, rather than community-level programming. Many feel this approach significantly disadvantages survivors and families and is not culturally sensitive or responsive to the needs of survivors, families, or the local community as a whole. Based on the projects envisioned, interviewees noted the community-level programming will not directly address the individual and family level hardship experienced as a result of the strike. Many survivors sustained serious injuries that require significant medical care, lost employment, lost homes, and experienced severe psychological trauma as a result of the strike. They noted that the view of loss taken by the Dutch government has focused on the recovery of physical infrastructure, demining, and clearing rubble, but has in no way accounted for the human harm experienced, including the widespread loss of life, life-changing injuries, loss of income, psychological effects, or other immaterial losses. Further, the community-level programming currently envisioned by the Dutch government does not account for the survivors and families that moved out of Hawija in the months and years after the strike, disadvantaging these families who experienced severe harm, but are no longer living in the area. Finally, despite movement being made towards community-level compensation, interviewees expressed continued disappointment and anger that neither in the acknowledgement of the strike nor in the announcement of the community-level compensation programs, did the Dutch government provide an apology, expression of regret, or contrition for the harm caused by the strike. For all the survivors of Hawija interviewed, this (alongside individual financial compensation) was the primary issue fuelling ongoing discontent. As one individual noted, ‘it is as if they see us as less than human, that they do not need to apologize for destroying our lives.’756 A psychologist that has worked with Hawija residents also noted, I see people suffering. Some because of their memories of the event, yes. But some others because of what has happened after. They feel mistreated. Deceived. This, and their lives are destroyed. They lost their family. Many cannot work. This is affecting their mental stability. They are angry, disappointed, and stuck in grief.757 Based on the outcomes of past cases and statements from former military lawyers, Western militaries are unlikely to provide an apology due to potential legal consequences. In such cases, apologies can constitute admissions of guilt, and provide evidentiary support for criminal 756 Witness 7L (name withheld). Interview with author, 02/12/2021. 757 Interview with NGO psychologist (name withheld). Interview with author, 06/02/2022. 230 investigations. However, several Hawija residents noted that given the scale of harm, any future financial compensation would ring hollow without an accompanying apology, expression of regret, or contrition. Based on the evidence analyzed, the evaluation of each factor category is explored in further depth below. Assessment of Effectiveness Based on the data collected in the case study, in this case the post-harm compensation and amends processes indicate ineffectiveness in contributing to Coalition objectives of maintaining legitimacy and providing Iraqi civilians with a sense of safety and security. Based on the data collected during the case study and in interviews with affected civilians, the evidence shows civilian perceptions regarding the fulfilment of key factors across the reporting were mixed, perceptions concerning the initial assessment and investigation stages were resoundingly negative, and perceptions regarding the compensation and amends stages were more mixed but continue to be sceptical as the process continues. Civilians who participated in this study noted the lack of transparency and communication across all stages of the response process as particularly detrimental to their perceptions of the Coalition’s legitimacy and their ability to provide the safety and security to civilians they have stated as their objective. Figure XX below provides a visual mapping of this case to the theory of effectiveness elucidated in this study. Figure 5.2: Visual Mapping of Hawija case to Theory of Effectiveness 231 The factors analyzed in this case demonstrate a significant disconnect between the expectations civilians have of Coalition forces in the aftermath of civilian harm incidents, and the level of investment and attention Coalition forces put into response efforts in Hawija. Across all categories including reporting, initial assessment, investigation, and compensation and amends, civilians clearly noted the importance and influence these response mechanisms have over their perceptions of the Coalition’s legitimacy and, as a result, mission success. However, nearly all factors for which civilians affected by the Hawija airstrike rated high on the importance and influence scales, the Coalition failed to or only partially fulfilled. For the majority of civilians affected by the Hawija airstrike interviewed, the lack of communication with the local community in the aftermath of the strike, lack of interaction or consultation with survivors, families, and local authorities during the reporting and investigation period, and the lack of assistance or compensation in the aftermath stood out more than the initial impact of the strike, with many noting the treatment they experienced in the aftermath felt ‘degrading’ and as if ‘their lives did not matter.’758 As one Hawija resident noted during an interview with Al-Ghad, ‘[a]t first we thought they were there to liberate us, but they did the opposite as they destroyed us more than they freed us or liberated us.’759 This disconnect created discernible breakage points in the theory of effectiveness informing this study. While Coalition forces did internally report the incident, complete an initial assessment and a full investigation, delays, and political roadblocks, including the identification of the nation responsible, have had significant impacts on affected civilians’ perceptions of effectiveness. Further, while compensation processes have begun, civilians and local authorities have noted that they were not consulted in their design or implementation, and that the approach that has been undertaken by the Dutch government is not culturally sensitive nor does it meet the needs of the local community. These missteps have resulted in a considerable breakdown of the Coalition’s legitimacy in the eyes of Hawija residents. In the early days of CJTF-OIR, the majority of Hawija residents expressed their support for the Coalition and its objectives. Residents often expressed confidence in the legitimacy of the 758 Witness 7N (name withheld). Interview with Al Ghad and PAX, 01/04/2021 in Azeem, Gould, Bijl, and Demmers, 2022.; Witness 7K (name withheld). Interview with Al Ghad and PAX, 16/03/2021 in Azeem, Gould, Bijl, and Demmers, 2022.. 759 Witness 7O (name withheld). Interview with Al Ghad and PAX, 05/04/2021 in Azeem, Gould, Bijl, and Demmers, 2022.. 232 Coalition’s air-centric approach due to the perception that it would better protect civilians from harm than a ground operation. This was a widely held belief among civilians across Iraq and Syria at this time, with interviewees consistently noting they had confidence in the Coalition’s approach to airstrikes because they were perceived to have been informed by good intelligence and undertaken using advanced technology. It was believed the strikes would therefore be ‘very precise and they would not hurt innocent victims.’760 However, many Hawija residents and several NGOs that now work with the community note that the June 2-3, 2015, airstrike on the Hawija industrial district as a key turning point in civilians’ perception of the coalition. Several interviewees were quick to describe their support for the Coalition in the immediate days and weeks before the Dutch airstrike. Several interviewees recalled a French air strike on the Hawija Technical Institute, which was under the control of ISIS, and emphasized their support of the Coalition’s decision to strike the target while also praising the precision of the strike that ensured no civilians were directly harmed. At the time, they saw this as evidence of the Coalition’s legitimacy and commitment to the civilian harm mitigation processes the Coalition had noted were central to their mission. In contrast, when asked about the airstrike on the industrial district, all interviewees expressed that they ‘blame the Netherlands’ and the wider Coalition for the strike and resulting civilian harm, noting they feel the strike itself demonstrated significant negligence in the targeting process. This shift in perception amongst Hawija residents began immediately after the strike and has continued to deteriorate over the years. Several interviewees noted they knew the strike was carried out by the Coalition and this ‘created a subsequent sense of disillusionment and fear because they [the Coalition] were no longer perceived to be discriminate or precise.’761 As one Hawija resident interviewed by Al-Ghad noted, First, we were satisfied with them because we wanted to get rid of ISIS. The American forces and the Coalition helped us to defeat ISIS. However, after the strike in the industrial area, many people were hurt or lost their lives and property. Therefore, we felt afraid of their warplanes and forces. We had a negative reaction different from the one at the beginning.762 760 Witness 7N (name withheld). Interview with Al Ghad and PAX, 01/04/2021 in Azeem, Gould, Bijl, and Demmers, 2022. 761 Witness 7K (name withheld). Interview with Al Ghad and PAX, 16/03/2021 in Azeem, Gould, Bijl, and Demmers, 2022. 762 Witness 7N (name withheld). Interview with Al Ghad and PAX, 1 April 2021 in Azeem, Gould, Bijl, and Demmers, 2022.. 233 In the immediate aftermath of the strike, in direct contrast to the stated mission of CJTF-OIR, Hawija residents expressed feeling much more insecure.763 Others expressed feeling that their lives did not count at all, with many assuming the Coalition was well aware of the risks of a secondary explosion and decided to proceed with the strike anyway.764 As a result, several individuals interviewed by PAX noted the ways in which their perception of who was ‘good’ and ‘bad’ in the ongoing conflict shifted. One individual noted, [w]e were afraid of the [Coalition] bombing more than ISIS because of the incorrect and inaccurate strikes and ISIS were very unjust and the bombing caused more damage. The situation became worse than ISIS. They did not think about the families and children that were in houses. Why did they bomb?765 Other interviewees noted that in the aftermath of the strike they lived in constant equal fear of ISIS and Coalition bombings, due to the ‘randomness’ and perceived negligence that had resulted from the Hawija strike.766 A majority of Hawija residents interviewed place equal blame for the airstrike and its aftermath on ISIS, the Coalition, and the Netherlands. This revelation of residents’ perceptions of the Coalition from a ‘liberating force’ to an ‘equal perpetrator of harm’ is a significant consideration in the theory of effectiveness in this case. As demonstrated in cases explored previously in Afghanistan and Iraq, this shift in the perception of the Western coalition’s legitimacy is common in the aftermath of civilian harm. In situations where population support is a factor in achieving mission success, incidents of civilian harm are frequently the tipping point for affected communities to shift their support tacitly or explicitly to insurgents or terrorist organizations like ISIS. These are the negative strategic effects that civilian harm response mechanisms, including civilian harm compensation and amends, are intended to mitigate. Yet, in the case of the Hawija strike, one of the most significant factors civilians identified as influencing their shifted perceptions about the Coalition and its legitimacy was the fact that ‘they received no help at all from the Coalition or the Netherlands in the immediate aftermath of the bombardment or after ISIS was driven out of Hawija.’767 763 Witness 7E (name withheld). Interview with Al Ghad and PAX, 09/06/2021 in Azeem, Gould, Bijl, and Demmers, 2022.; Witness 7A (name withheld). Interview with Al Ghad and PAX, 14/03/2021; Witness 7B (name withheld). Interview with Al Ghad and PAX, 01/04/2021 in Azeem, Gould, Bijl, and Demmers, 2022. 764 Witness 7C (name withheld). Interview with Al Ghad and PAX, 06/04/2021 in Azeem, Gould, Bijl, and Demmers, 2022. 765 Als de bom valt: Danny Ghosen in Irak (2022: VPRO), documentary. 766 Witness 7A (name withheld). Interview with Al Ghad and PAX, 14/03/2021 in Azeem, Gould, Bijl, and Demmers, 2022. 767 Saba Azeem, Lauren Gould, Erin Bijl, and Jolle Demmers, After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija (Utrecht: Colophon, 2022), 103. 234 Today, with little progress made by the IOM and UNDP projects, many Hawija residents have begun legal claims against the Dutch MoD for damages. 52 civilians from Hawija who were either injured or had a family member killed in the explosion have now filed legal claims. As of February 2022, a subpoena was served on behalf of eleven civilians from seven families. The civilians filing these cases note that they are doing so because current support projects are insufficient and the Dutch government needs to provide assistance for first-level security needs– medical care, humanitarian support, housing, psychological support, and financial compensation– in order to restore their dignity and meet their basic needs.768 To that end, they are seeking an apology and individual financial compensation. As a local community leader familiar with the cases noted, ‘we do not trust the Dutch government anymore, but we have full faith in the Dutch legal system.’769 5.5 The Razzo Family, September 20, 2015, The Woodlands, Mosul, Nineveh770 “In the middle of the night coalition airplanes targeted two houses occupied by civilians. Is this technology? This barbarian attack cost me the lives of my wife, daughter, brother, and nephew.”771 These are the first words written by Basim Razzo– a husband, father, uncle, and brother– written as a Facebook post in the aftermath of a US coalition airstrike on his and his brother’s houses in the early morning hours of September 21, 2015, in Mosul, Iraq. This case delves into the Razzo family's story and the investigation, acknowledgement, and compensation process that has unfolded thus far using first-hand testimony from Basim and his family, New York Times investigative reporting by Azmat Khan, and recently declassified documentation regarding the strike and its aftermath. The Razzo family is one of the oldest families in the Mosul area. Yet, despite deep family history, Basim had not always lived in the area. An account manager for Huawei, Basim has travelled extensively outside of Iraq, and even lived in Portage, Michigan during the 1980s while 768 Ibid. 769 Mukhtar, key informant interview conducted by PAX, 17 November 2021 in Azeem, Gould, Bijl, and Demmers, 2022. 770 A debt of gratitude for the content of this case study is due to Basim Razzo and Azmat Khan of the New York Times. Razzo consented to being identified as part of this study, and his case is in the public record. With this in mind, his name is used within this report rather than withheld. 771 Azmat Khan and Anand Gopal. ‘The Uncounted,’ The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html. 235 completing his academic studies in engineering in the 1980s at Western Michigan University. It was in Michigan, at his uncle’s house in Ann Arbor, that Basim and his wife, Mayada, were married. While the family settled into American life and remained in Michigan for several years, the Razzos eventually moved back to Mosul to be closer to their Basim’s aging parents.772 The family moved into ‘The Woods’ – a neighbourhood just outside the city, providing access to many amenities in a quiet setting on the banks of the Tigris River. Basim and his brother Mohannad built nearly matching stucco houses next to each other in a shared gated compound which sprawled across two carefully kept yards. Their garages held three cars.773 Basim and his family enjoyed the many amenities their community had to offer, including many days and nights at the restaurants and cafes that line that section of the Tigris. However, as relative stability gave way to chaos under ISIS occupation, the Razzo family spent more and more time at home.774 It was here after another monotonous day confined to their homes for safety that everything changed. As Basim tells it, he had spent the evening hours of September 20th 2015 on his computer, while his wife and daughter headed upstairs to bed. Around 1:00 on the morning of September 21st, Basim went upstairs to sleep as well. Not long after, in the early hours of the morning, Basim awoke with a start. His shirt was drenched, and there was a strange taste — blood? — on his tongue. The air was thick and acrid. He looked up. He was in the bedroom, but the roof was nearly gone. He could see the night sky, the stars over Mosul. Basim reached out and found his legs pressed just inches from his face by what remained of his bed. He began to panic. He turned to his left, and there was a heap of rubble. “Mayada!” he screamed. “Mayada!” It was then that he noticed the silence. “Mayada!” he shouted. “Tuqa!” The bedroom walls were missing, leaving only the bare supports. He could see the dark outlines of treetops. He began to hear the faraway, unmistakable sound of a woman’s voice. He cried out, and the voice shouted back, “Where are you?” It was Azza, his sister-in-law, somewhere outside. “Mayada’s gone!” he shouted. “No, no, I’ll find her!” screamed Azza. “No, no, no, she’s gone,” he cried back. “They’re all gone!”775 Later that same day, US coalition forces posted a video to the Coalition’s official YouTube account of a strike they said flattened an ISIS vehicle-based improvised explosive device 772 Basim Razzo. Interview with author, 06/06/2021; Azmat Khan and Anand Gopal. ‘The Uncounted,’ The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html. 773 Ibid. 774 Ibid. 775 Azmat Khan and Anand Gopal. ‘The Uncounted,’ The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html. 236 (VBIED or ‘car bomb’) factory that posed a “direct threat to both civilians and Iraqi security forces,” portraying the strike as a major strategic blow to ISIL forces in the region.776 Days later, Basim watched the video from a hospital bed, immediately recognizing his and his brother’s houses as the targets.777 He could only watch the first few frames. Of the seven occupants of the two houses, Basim and his sister-in-law, Azza, were the only survivors. His wife, Mayada, his 21-year-old daughter, Tuqa, his brother, Mohannad, his 18-year-old nephew, Najib, and the Razzo family dog, Sinbul, were killed by the strikes.778 Figure 5.3 below includes photographs of the family members killed in the attacks shortly before their deaths. Figure 5.3: Photographs of Razzo family members killed in the attack779 Mayada Razzo, wife, and mother Tuka Razzo, Basim’s daughter Mohannad Razzo, Basim’s brother Najeeb Razzo, Mohannad’s son Sinbul, Najeeb’s dog780 776 CJTF Operation Inherent Resolve, “Coalition Airstrike in Mosul, Iraq 20 Sept 15, Youtube, https://web.archive.org/web/20160425004541/https://www.youtube.com/watch?v=1Av4Q0EgpKY&feature=youtu.be. 777 Basim Razzo. Interview with author, 06/06/2021; Azmat Khan and Anand Gopal. ‘The Uncounted,’ The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html. 778 Ibid. 779 Photographs courtesy of Basim Razzo, 18/02/2022. 780 The photo of Sinbul is included here at the request of Basim Razzo. He notes, ‘Sinbul was Najeeb’s dog but loved by us all.’ While it is common to discuss the implications of civilian harm in modern conflict, accounts including depictions of the harm caused to animals are not as prevalent. 237 Basim and Azza sustained life altering injuries in the blasts. Azza was badly burned, only surviving as the force of the blast threw her out a second-story window into the driveway.781 Basim sustained a shattered hip, a broken pubic bone and his back and feet were left full of shrapnel.782 Basim’s injuries were so extensive, he had to be transported, across ISIS territory in Iraq and Syria by car, in order to reach Turkey where he underwent extensive surgery on his hip and sustained medical treatment. He has required multiple major surgeries and long-term medical treatment in the years that followed.783 Yet, as Basim’s cousin, Zareena Grewal, a professor at Yale University, wrote in the New York Times in the aftermath of the strike, it is the emotional pain of losing his family that has consumed him and his loved ones. She notes that Basim’s elderly parents have fallen into such a state of shock and grief that they refuse to eat, and we worry for their health. As for the two families’ older children, Abdulla, Aya, and Yahya, they mourn their parents and siblings from a safe distance having moved out of Mosul last year. But like us, they are deprived of the solace of attending funerals, and are condemned to sleepless nights trying to make sense of how missiles or bombs could be launched against a defenceless family who did not have so much as a pistol in the home.784 In the months and years that followed the strike, Basim has advocated for justice for his family and accountability for the military forces involved in the strike. His efforts have included pushing for the Coalition to share information about the strike and its justification, acknowledge it was a Coalition operation, provide an apology from the coalition forces responsible, and for compensation. However, Basim’s experience seeking justice for his family has been fraught– typified by roadblocks, lack of response from the Coalition, mismanaged administration, misattribution of the strike amongst Coalition partners, and low amounts for compensation offered. He notes that while the initial pain of the strike was immense, the response and compensation process that ensued following the strike was ‘offensive’ and ‘inhumane,’ and drastically changed his perspective and opinion of Coalition forces.785 The following analysis is based on interviews conducted with Basim as well as declassified documentation regarding the strike and its aftermath. 781 Basim Razzo. Interview with author, 06/06/2021; Azmat Khan and Anand Gopal. ‘The Uncounted,’ The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html. 782 Ibid. 783 Ibid. 784 Zareena Grewal, ‘When War Comes Close to Home,’ The New York Times, October 4, 2015, https://www.nytimes.com/2015/10/05/opinion/when-war-comes-close-to-home.html. 785 Basim Razzo. Interview with author, 06/06/2021. 238 Reporting The day after the strike, the Coalition posted a video of the strike to its YouTube channel. In the caption, they note that Coalition airstrikes, in coordination with the Government of Iraq, destroyed a Daesh vehicle-borne EID network near Mosul, Iraq on September 20, 2015. They state this VBIED network was ‘comprised of multiple facilities spread across Mosul used to produce VBIEDs for ISIL’s terrorist activities in the region and posed a direct threat to both civilians and Iraqi Security Forces.’786 Nowhere in the caption or the video did the Coalition make mention of any civilian casualties. While Basim does confirm at the time there was a former ISIS headquarters building nearby (a building formerly used as a former US Joint Coordination Centre (JCC) where condolence payments were often disbursed during the Iraq War) he notes that ISIS had vacated the building by the time of the strike.787 Having viewed the initial frames of the video, Basim confirmed that the buildings depicted are his and his brother’s homes– with the former ISIS headquarters located about 150 metres across the street. In the aftermath of the strike, social media reports emerged of a civilian harm incident in the area of ‘The Woods’ neighbourhood where Basim and Mohannad lived with their families. On September 21st, posts shared on public community groups such as Mosul Ateka, Iraqi Revolution, and the Nineveh Reporters Network documented the strike on Basim and Mohannad’s homes.788 They were the first to report that civilian casualties resulted from the strike, and identified Najeeb, Mohannad, Mayada, Tuka, and the family dog, Sinbul, as the victims. However, despite this extensive documentation on public sites and multiple comments from Basim’s family members on the Coalition’s YouTube video, declassified documentation from CJTF-OIR notes that the Coalition officially first became aware of civilian harm allegations associated with the strike two weeks later with the release of Zareena Grewal’s article in the New York Times.789 While a control flight over the strike area was likely to have been undertaken, no internal reporting processes were initiated that alluded to concerns of civilian harm in the immediate aftermath. 786 CJTF Operation Inherent Resolve, Caption of “Coalition Airstrike in Mosul, Iraq 20 Sept 15, Youtube, https://web.archive.org/web/20160425004541/https://www.youtube.com/watch?v=1Av4Q0EgpKY&feature=youtu.be. 787 Basim Razzo. Interview with author, 13/07/2021. 788 All initial reporters are documented by the Airwars critical incident assessment for this strike. CI109, The Credibles, Airwars, https://airwars.org/civilian-casualties/ci109-september-20-2015/. 789 CAOC CIVCAS Credibility Assessment- 21 September 2015, released by The New York Times, 21 December 2021. https://int.nyt.com/data/documenttools/c-9-20-15-iraq/2688c41b14591157/full.pdf. 239 After extensive surgeries to repair his broken hip and months of recovery, Basim began the process to seek an investigation and compensation. With no process or point of contact for reporting civilian harm incidents to the Coalition available publicly, Basim began collecting evidence and reaching out to everyone he knew who may know someone in the US government.790 He spent months studying Google Earth images, having relatives in Mosul take photographs of his former home and the bomb fragments that still littered the rubble, and documenting the loss of his wife, child, brother, nephew, and all their family’s possessions. He found help from a former student of a friend who taught at Penn State. An advisor to Hillary Clinton’s presidential campaign, the former student helped him secure an appointment at the US Embassy in Baghdad.791 It was 7 February 2016 when Basim arrived at the edge of the Green Zone in Baghdad. He entered through the security gates using a walker and headed for the embassy. When he arrived, he headed for the consular section which was normally tasked with serving US citizens in Iraq and supporting Iraqi visa applications. As there was ‘no established mechanism in place for Iraqi victims to report civilian harm incidents to American officials, his appointment was with the American Citizen Services section.’792 He brought with him a 9-page document containing all the documentation he could gather– a list of his destroyed possessions, photographs of his and Mohannad’s houses before and after the strike, and photos of his family– one of Tuka taken the day before she was killed, smiling and holding a sparkler.793 While he sought compensation and recognition of the harm done to his family, more than anything he needed the US to declare his family were not ISIS. He explained to the Consular Officer he met with that because of the justification of the strike shared on the Coalition’s YouTube video (that they had struck an ISIS VBIED factory), he and his family were now “looked at as members of ISIS” by their own community and Iraqi authorities– a major issue for the family’s safety and security.794 790 Basim Razzo. Interview with author, 13/07/2021; Azmat Khan and Anand Gopal. ‘The Uncounted,’ The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html. 791 Basim Razzo. Interview with author, 13/07/2021. 792 Azmat Khan and Anand Gopal. ‘The Uncounted,’ The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html. 793 Basim Razzo, Report to the US Embassy in Baghdad, 7 February 2016, https://www.documentcloud.org/documents/3863733-Basim-Razzo-Report-Submitted-to-State-Department.html. 794 Basim Razzo. Interview with author, 13/07/2021. 240 The Consular Officer promised they would forward Basim’s report to the appropriate authorities. Over the following months, Basim contacted them asking for an update, but received no reply. In the third month, he received an email noting his case had been ‘forwarded.’795 A year after the strike he emailed the embassy again– the Consular Officer had moved positions and their Embassy inbox was unable to accept messages. When the New York Times later identified and interviewed the Consular Officer, they noted the case had referred to a lawyer attached to the Department of Defense, who said ‘there’s no way to prove that the U.S. was involved.”796 The lead reporter, Azmat Khan, wrote to the coalition on Basim’s behalf, including Basim’s documentation, the link to the Coalition’s video of the strike, and copies of Basim’s communications with the Embassy. According to Khan, the Coalition responded that they had no record of any strikes being carried out in the area on 20 September 2015.797 In the days following the receipt of this response, she monitored the Coalition YouTube channel. In the weeks that followed, the video of the strike on Basim’s house along with all videos of airstrikes carried out by the Coalition began disappearing. Over the course of the reporting process in Basim’s case, it is the lack of publicly available information, external reporting process, or point of contact that stands out. Basim tells me about the months he spent scouring the internet, including social media and professional networking sites and the Coalition webpages for a way to contact the Coalition about his case. Ultimately, it was luck that connected him to the Adviser at Hillary Clinton’s presidential campaign, who was able to assist with an appointment at the embassy in Baghdad. According to Basim, both the Embassy and Coalition made reporting the civilian harm incident difficult at every stage. Basim documents multiple emails chasing Embassy officials for responses, and shares the doubt he began to feel a year into the process, when his emails to the Consular Officer began to bounce back.798 Meanwhile New York Times reporters familiar with the case highlighted the incredulity they felt from providing multiple forms of evidence of the strike and the harm to Basim’s family, including the Coalition’s own time-stamped video, only to be told no incident had been recorded 795 CJTF-OIR, FOIA# 17-0089, released by The New York Times, 21 December 2021, https://int.nyt.com/data/documenttools/c-9-20-15-iraq/2688c41b14591157/full.pdf. 796 Azmat Khan and Anand Gopal. ‘The Uncounted,’ The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html. 797 Azmat Khan and Anand Gopal. ‘The Uncounted,’ The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html. 798 CJTF-OIR, FOIA# 17-0089, released by The New York Times, 21 December 2021, https://int.nyt.com/data/documenttools/c-9-20-15-iraq/2688c41b14591157/full.pdf. 241 for that date in Coalition logs.799 Further, in contrast to the airstrike on Hawija just 4 months prior, there is no evidence of internal reporting at all in declassified documentation released in Basim’s case. The first accounting of concern regarding civilian casualties in military documentation in the case was two weeks after the strike, following the New York Times release of Zareena Grewal’s article regarding the strike.800 In addition to the lack of established process to receive external reports from civilians or media, Basim encountered extensive barriers to reporting the incident. As no publicly available reporting process existed, Basim was reliant on his network of connections in the United States to find a point of contact, largely only accessible to him due to his extensive family connections in the US as well as his fluency in English and familiarity with the US’ use of condolence payments in Iraq previously. Yet, even once he was able to establish a meeting with the US Embassy in Baghdad, there were many barriers to surmount. As Basim describes, he was living in Baghdad at the time with his son Yahya. He was still recovering from his injuries, meaning he could only walk with a walker, and Yahya had to drive him to the edge of the Green Zone.801 Once he arrived Yahya could not accompany him into the fortified area and, due to the security and where the US Embassy was located Basim had to walk and take a minibus to the Embassy.802 Despite these barriers, Basim was quick to note they did not deter him. Now working with other families who have survived similar incidents, he says he is acutely aware of how these barriers affect others with fewer connections and resources. ‘My process was very long, and I feel they make it difficult on purpose. But the families I see trying to get compensation today, many do not have any connections, do not speak any English. I am lucky to have had people to help and I knew the language.’803 At present, the Coalition does not provide reporting options that mitigate these barriers, with many families who are pursuing claims against the Coalition noting that both 799 Azmat Khan and Anand Gopal. ‘The Uncounted,’ The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html. 800 CAOC CIVCAS Credibility Assessment- 21 September 2015, released by The New York Times, 21 December 2021. https://int.nyt.com/data/documenttools/c-9-20-15-iraq/2688c41b14591157/full.pdf. 801 Basim Razzo. Interview with author, 13/07/2021. 802 Basim Razzo. Interview with author, 13/07/2021; Azmat Khan and Anand Gopal. ‘The Uncounted,’ The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html. 803 Basim Razzo. Interview with author, 13/07/2021. 242 legal representation and translation services in Iraq and the country which carried out the strike are almost certainly required to navigate the existing reporting process. In addition to the issues discussed above, safeguarding was a particular concern for Basim while reporting the incident. As he notes in his initial documentation provided to the Embassy in Baghdad, ‘the most important issue is that where [we’re] now looked at as members of ISIS this leaving us in an ocword [awkward] situation in the local community and later with the authorities after the liberation of Mosul.’804 At the time, Mosul was in the process of being liberated, but this meant that people like Basim were regarded with suspicion of being Islamic State sympathizers because the Coalition forces had targeted them. This made them a ‘target for rogue militias and vengeful security forces.’805 Basim needed to ensure he could receive documentation from the Coalition that they had made a mistake and confirm he did not belong to ISIS. However, at no point in the reporting process did Basim receive any protection nor documentation to attest to his family’s innocence. While this did come later, it was years after the incident. Finally, as discussed, a lack of transparency and communication permeated this case, and this was a frustration flagged by Basim during this study. He notes the lack of public information regarding the reporting process or points of contact means families and communities affected by civilian harm incidents do not know where to turn to report the harm. This results in significant delays in the process. Additionally, Basim noted the lack of transparency during the process, particularly in the months after he filed his report with the Embassy as confusing.806 The lack of updates, feedback, or communication made it difficult to understand if progress was being made or his claims were being investigated. Initial Assessment Despite the lack of transparency and communication with Basim following his report to the Embassy in Baghdad, declassified documents indicate that an Initial Assessment process was initiated, including a CCAR. While the majority of the CCAR’s 13 pages are redacted, the two 804 Basim Razzo, Report to the US Embassy in Baghdad, 7 February 2016, https://www.documentcloud.org/documents/3863733-Basim-Razzo-Report-Submitted-to-State-Department.html. 805 Azmat Khan and Anand Gopal. ‘The Uncounted,’ The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html. 806 Basim Razzo. Interview with author, 13/07/2021. 243 pages available include Zareena Grewal’s New York Times article, noting it as the source of the civilian casualty report. It indicates that the IA and CCAR phase was initiated and completed between the release of Grewal’s article on 4 October 2015 and 20 October 2015. In the unredacted pages, the COAC notes that after a review of ‘available mission materials and open-source reports, the allegation of civilian casualties is deemed credible’ as a result of the strike.807 Based on open-source information, including that reported through social media by Mosul Ateka, the Iraqi Revolution, and the Nineveh Reporters Network, and in the comments made by the Razzo family on the Coalition’s YouTube video, allegations of civilian casualties documented online were either overlooked, not captured, and passed to the appropriate authority to assess, or were ignored by the Coalition. This resulted in a delay to the start of the IA and CCAR process of several weeks until Grewal’s article was released. Once the assessment process was initiated, it appears to have been conducted fairly and impartially and did result in a determination of ‘credible’ civilian harm as a result of Coalition action, though the content of the assessment is difficult to analyse in depth due to extensive redaction. However, issues appeared to emerge following the completion of the assessment, particularly with regards to the communication of the outcomes of the assessment with Basim and the public, as well as referring the case onwards for further investigation. While it is documented that the COAC recommended that CJTF-OIR conduct further inquiry into intelligence supporting validation of the Target, specifically, the credibility and accuracy of the reports, and whether CJTF-OIR used adequate resources to validate intelligence’ it was found that ‘CJTF-OIR conducted no further inquiry…the CENTCOM CIVCAS team did not formally close the allegation, and the CENTCOM Public Affairs Office (PAO) did not release a credibility assessment finding.808 While the policy formally requiring these steps was not in effect at the time, the IA & CCAR process undertaken in the aftermath of the Hawija airstrike four months prior indicated the procedure was in practice, regardless of a formal policy requirement. Further documentation indicates that despite Basim’s efforts to contact the Coalition, it was not until 8 November 2016 when Azmat Khan ‘contacted the CJTF-OIR PAO regarding CIVCAS and solatia procedures, 807 CAOC CIVCAS Credibility Assessment- 21 September 2015, released by The New York Times, 21 December 2021. https://int.nyt.com/data/documenttools/c-9-20-15-iraq/2688c41b14591157/full.pdf. 808 CJTF-OIR, FOIA# 17-0089, released by The New York Times, 21 December 2021, https://int.nyt.com/data/documenttools/c-9-20-15-iraq/2688c41b14591157/full.pdf. 244 and to learn of the status of [redacted (Basim’s)] case’ that these issues became known to the appropriate authorities within the Coalition.809 As a result, it was not until over a year after the strike that Basim was informed the Coalition had determined his allegations against the Coalition to be credible, or that the case was forwarded to the competent authorities internally for further investigation. Investigation Following Khan’s communication with the Coalition PAO on 8 November 2016, an investigation into the airstrike on Basim and Mohannad’s houses was initiated and a ROI completed and approved on 13 February 2017.810 It found that the allegation of civilian harm in the case was credible and specifically noted ‘no evidence suggesting that [redacted (Basim)] or his family were members or supporters of ISIL, or that such information served as a justification for the strike.’811 The Investigating Officer noted the strike was based on ‘the characterization of the Target facility, not of [redacted (Basim)] or his family.’812 However, they note that the civilian harm was not caused by any human error, equipment, or weapons malfunction and that the strike hit the target it was intended to.813 Instead, the report argues the flaw was in the intelligence. The report notes that multiple intelligence sources and agencies had argued the houses were under ISIL control and no longer served as a civilian residence, however this intelligence was later found to be flawed. In a section of the report previously only accessible to the US and Five Eyes partners, it notes that a ‘Retrospective review of post-strike information, including materials provided by [redacted] and [redacted] however, suggests that the process may have identified the wrong facility as the Target. In hindsight, it appears that some of the intelligence attributed to the Target may have actually indicated an adjacent compound. Moreover, additional observation of the Target may have revealed a pattern of activity consistent with a non-ISIL, civilian presence.814 Later in the investigation the ‘pattern of activity’ concern is noted again in further depth, with documentation stating that the Razzo family and their homes were surveilled for 95 minutes, with most strikes which are approved for deliberate targeting having surveillance records of 200 809 Ibid. 810 Ibid. 811 Ibid. 812 Ibid. 813 Ibid. 814 Ibid. 245 or more minutes over days or weeks of observation.815 In addition, the investigation identified several mistakes that were made during the reporting, assessment, and investigation process. Other than the IA and CCAR, no other investigation was undertaken until late 2016, over a year after the incident. Further, they noted a mistaken labelling of the Youtube video that was posted to the Coalition’s channel. While the Coalition did also strike a VBIED facility in Mosul on the same night, the intelligence collected did not indicate Basim and Mohannad’s homes were part of the VBIED network but were thought to be ISIS Headquarters and ‘bed down’ facilities for fighters to rest.816 Based on an assessment of the investigation undertaken in 2016 and the perceptions of Basim and the New York Times team involved in the case reporting, the following sections provide an analysis of the investigation stage. With regards to the first factor category, investigation of credible reports, while Basim’s case was eventually investigated and did follow the rigorous investigation process outlined in CJTF-OIR guidance, it was significantly delayed by the failure to initiate the investigation immediately on the recommendation of CCAR. This meant that by the time the investigation was initiated in 2016, ‘the units and nearly all of the personnel involved in this incident have redeployed’ and were difficult or impossible to reach to collect their testimony.817 This resulted in a lack of clarity regarding which units were directly involved in the strike, which were not resolved until later in the compensation process. Additionally, while both internal and external information and documentation was included in the materials reviewed by the Investigating Officer, including the documentation submitted to the Coalition by Basim and the New York Times, no further external documentation was sought, and the Investigating Officer never contacted Basim or his family in the course of the investigation.818 No site visits or witness interviews were undertaken as part of the investigation, though the 9 page statement and email documentation submitted to the Coalition by Basim was included and referenced in the ROI. Upon finalization of the report, the conclusion that the civilian harm allegations were found credible was shared with Basim and his family, though all other recommendations remained classified. In terms of safeguarding 815 Ibid. British military officer B (name withheld). Interview with author, 01/04/2022. A British military officer with knowledge of aerial surveillance within CJTF-OIR noted these timeframes as generally the amount of observation needed to make credible determinations about facility use to justify a deliberate strike. They also noted there is some variation, particularly if a high-value target is thought to be at a facility. 816 CJTF-OIR, FOIA# 17-0089, released by The New York Times, 21 December 2021, https://int.nyt.com/data/documenttools/c-9-20-15-iraq/2688c41b14591157/full.pdf. 817 Ibid. 818 Basim Razzo. Interview with author, 15/09/2021. 246 witnesses and reporters during the investigation process, efforts to do so were absent during the investigation process, despite the risks to his and his family’s security that had resulted from the strike. The ROI however did seek to mitigate these effects, directly noting there was no evidence to indicate that Basim or his family were affiliated with ISIS or supported the group.819 This information was shared with Basim following the investigation and he was provided a letter to attest to this determination by Coalition officials. The recently declassified ROI demonstrates the Investigating Officer followed the investigation process outlined in CJTF-OIR guidance. The document and its enclosures clearly outlined the process followed, the list of evidence evaluated, clear determinations regarding the case facts and legal findings, and multiple recommendations to address the shortfalls of the investigatory process in this case. Further, it made specific recommendations regarding intelligence collection during the target development process. Interestingly, the ROI does not provide any information or analysis publicly ascribing responsibility for the strike to a particular TCN. That said, the Investigating Officer clearly notes that, based on ‘circumstances ruling at the time’ of the strike, his determination is that the strike was, indeed, legal and that ‘those involved in validating this target gave no less than their full effort to minimize the risk to non-combatants while accomplishing this mission.’820 Based on this, the Investigating Officer made additional recommendations that Basim and his family be provided solatia payments as ‘an expression of sympathy… in the amount of $9,000 for his injuries, the loss of his wife and daughter, and damage to his home and car…’821 While this amount was presented to Basim and will be explored in the next section, no appeal of the investigation’s findings or the amount of solatia was permitted in the process. Consequence Management, Compensation and Amends Following the conclusion of the investigation process and the Investigating Officer’s recommendation for a solatia payment to Basim and his family, US military lawyers reached out to Basim to set up a meeting. In early 2018, Basim met with the US legal team representing the 819 CJTF-OIR, FOIA# 17-0089, released by The New York Times, 21 December 2021, https://int.nyt.com/data/documenttools/c-9-20-15-iraq/2688c41b14591157/full.pdf. 820 Ibid. 821 Ibid. 247 Coalition and was offered the $9,000 solatia payment approved in the investigation report.822 According to Basim, this was the ‘most offensive’ part of the whole process.823 He declined this amount, telling the US legal team that such a low amount did not even cover the cost of his destroyed car, let alone the pain and anguish he felt at losing four members of his family or his medical bills.824 Basim thought this was the end of the process, and attempted to appeal the decision. He hired a lawyer in Iraq and the United States and attempted to engage in further negotiations. In this process, due to the US’ engagement with Basim on the offer of solatia payments, it was thought that the US was responsible for the strike itself. However, in 2019, Business Insider and the Dutch newspaper De Telegraaf, broke a new story: the Netherlands was responsible for the strike on Basim’s home and the pilot who flew the mission was speaking publicly. Using the pseudonym, Stefan, during the interview the pilot responsible for the strike on Basim’s house said he was “grappling with his actions that led to the deaths of at least four civilians in 2015” and noted that he had been “informed [by US investigators] that the target had…been incorrect…somewhere along the way, there was an error in the intelligence process.”825 This information provided Basim with a new route for pursuing compensation. While the US had long had ‘caps’ on the amount of solatia payments permitting compensation from exceeding approximately $2,500-3,500 per death except in very specific circumstances such as Basim’s, where they made offers that were higher. The Dutch government did not have these same limits in place. While the Dutch Minister of Defence, Ank Bijleveld acknowledged Dutch responsibility for the airstrike on November 4, 2019, by January 2020 Basim stated he had not yet been contacted by Dutch officials but noted “[o]ut of decency and as a moral act of acknowledging responsibility, I expect them to contact and do the right thing. I think I am entitled to an official apology and then a real compensation for the loss of four lives and two houses.”826 822 Basim Razzo. Interview with author, 05/11/2021. 823 Ibid. 824 Ibid. 825 Olof van Joolen and Silvan Schoonhoven, ‘F-16 pilot sick of mistaken bomb,’ De Telegraaf, November 5, 2019, https://www.telegraaf.nl/nieuws/1399298716/f-16-vlieger-ziek-van-vergisbom; David Choi and Qayyah Moynihan, ‘I’d wiped out half a family’: F-16 pilot grapples with guilt after a bungled bombing mission in Iraq killed at least 4 civilians’ Business Insider, November 6, 2019, https://www.businessinsider.nl/f-16-pilot-guilt-after-isis-bombing-mission-in-iraq-2019-11-2/. 826 Basim Razzo in Cyril Rosman, ‘How a Dutch bomb destroyed Basim Razzo’s life,’ Algemeen Dagblad, November 4, 2019, https://www.ad.nl/buitenland/iraaks-slachtoffer-nederlandse-bommen-wacht-nog-steeds-op-sorry-van-de-minister~ad12db2a/; Cyril Rosman, ‘Iraqi victim of Dutch bombs is still waiting for a ‘sorry’ from the minister’ Algemeen Dagblad, 24 January 2020. 248 Shortly thereafter, Basim retained Dutch human rights lawyer Liesbeth Zegveld to represent his case to the Dutch government. After nearly two years of negotiation, in November 2021 Basim was provided compensation from the Dutch government in acknowledgement of their role in the airstrike that killed Mayada, Tuka, Mohannad, Najeeb, and Sinbul. While the details of the compensation amount remain confidential, the amount is said to be in the region of one million Euros in recognition of the material and immaterial damage caused to Basim and his family by the Dutch government. The analysis concerning the compensation and amends process in this case is based on interviews and written feedback from Basim. As details about both the Dutch process and level of payment remain confidential, the analysis contained in this case is reliant on their perspectives. According to Basim, the process he engaged in with the Dutch government to seek compensation was fraught with complexities and inadequacies. However, he noted he encountered fewer obstacles than in negotiations with the US, likely due to a completed investigation and his lawyer’s knowledge of the Dutch human rights legal system, including legal provisions in Dutch law for reparations.827 Over the course of the process, Basim notes that the Dutch government privately acknowledged responsibility for the airstrike, in addition to their public acknowledgement in November 2019, though no apology was provided.828 Further, while Basim found the Dutch process to seek compensation to be fair, he noted that it is far from transparent, timely, or adequately resourced, resulting in his view that it is largely ineffective without significant support provided to the victim to surmount these barriers.829 In particular, he noted that the process would be ‘impossible’ to navigate without Dutch legal representation and translation services.830 Even with the assistance of his Dutch legal team, the process to seek compensation took nearly two years. Additionally, when asked about the cultural appropriateness and sensitivity of the compensation and associated processes, Basim was critical. 827 Basim Razzo. Interview with author, 05/11/2021. 828 Ibid. 829 Ibid. 830 Ibid. 249 They did not think about what would be helpful to me. I had to chase them for years to acknowledge what they had done. Now, yes, I have compensation, but first they [the US] offered me so little. It has been a painful process. I am at the end now, but at what cost to me and my family?831 He noted that the US’ compensation policies, were not adapted to local needs or expectations. ‘The amount they wanted to provide made the pain worse. After all this time, and the emotional pain of losing four members of my family and our homes, it was painful to know this was how little they valued our lives.’832 In particular, Basim found the lack of apology by either the US or the Dutch government upsetting. While his lawyer prepared him for the reality that it was unlikely an apology would be provided due to the legal liability risks it could bestow upon the Dutch government, it was still a difficult point in the compensation process. Although the Dutch government did acknowledge their responsibility for the strike and express their sympathies, to date, no formal apology has been made. Despite the many faults in this case, Basim’s case for compensation represents one of the only successful compensation claims that have resulted from civilian harm incidents under CJTF-OIR operations.833 The compensation amount, though confidential, is thought to be in the region of 1 million Euros and considered appropriate to the material and immaterial harm committed under the provisions of Dutch law. From Basim’s point of view, no amount of money will ease the burden of the loss of Mayada, Tuka, Mohannad, and Najeeb, but he feels he has now been able to provide them with some form of accountability. Assessment of Effectiveness Based on the analysis and data collected in the case study, in this case the post-harm compensation and amends processes indicate partial effectiveness in contributing to objectives of maintaining legitimacy in the aftermath of civilian harm incidents and providing Iraqi civilians with safety and security. Based on the data collected during the case study and in interviews with affected civilians, the evidence shows perceptions regarding the fulfilment of key factors across the reporting and initial assessment stages were mixed, while perceptions regarding factors during the investigation and compensation and amends stages were slightly more negative. Civilians who participated in this study noted the lack of transparency and 831 Ibid. 832 Ibid. 833 Michael Levenson, ‘What to know about the Civilian Casualty Files’, The New York Times, December 18, 2021, https://www.nytimes.com/2021/12/18/us/airstrikes-civilian-casualty-files-pentagon.html. 250 communication across the reporting, initial assessment, and investigation stages of the response process, as well as their treatment during compensation negotiations as particularly detrimental to their perceptions of the Coalition’s legitimacy. Figure 5.4 below provides a visual mapping of the Razzo family case to the theory of effectiveness elucidated in Chapter 1 and 2. Figure 5.4: Visual Mapping of Razzo family case to Theory of Effectiveness Although Basim’s case is one of the only cases under CJTF-OIR to have resulted in compensation, the process to arrive at this was fraught, leaving Basim not only with resentment towards the Coalition forces as a result of the strike, but also due to the ways in which he was treated in the aftermath. Basim stated that ‘they have forgiven the military forces involved in the strike’ as they understand they were operating on flawed intelligence.834 However, Basim notes he struggles to forgive the US forces involved in his case in particular, due to the way he was treated by the Embassy and DoD staff and lawyers during the reporting, assessment, investigation, and compensation process.835 Indeed, these sentiments are ones Basim admits he struggles with today. 834 Ibid. 835 Ibid. 251 This is clearly a concern that was shared by the Coalition, particularly with regards to Coalition concerns around potential retaliation against the United States, given Basim’s family connections in the country. This became clear to the Razzo family approximately a year after the strike on Basim’s home in Mosul when his cousin, Hussain, an engineering professor at the University of Arkansas, was visited by the FBI.836 FBI agents questioned Hussain about his feelings regarding the airstrike on Basim’s home, particularly if the deaths of his family members ‘made him in his heart of hearts sympathize with the bad guys.’837 Hussain, who has lived in the United States for thirty-five years and considers himself an American, was incredulous and said no.838 Basim and his family note this is a sentiment that they share with other survivors of Coalition airstrikes in Mosul. While the answer is the same for Basim, he notes that does not mean he actively supports the US forces or the Coalition any longer. Despite his many years spent in the United States and providing ad-hoc assistance to the US forces in Iraq, notes that ‘I can forgive but I cannot forget how they treated me.’839 Based on Basim and his family’s perceptions, while the investigation process was fraught with delays, including Coalition forces losing track of the investigation for over a year, the point at which Basim’s perceptions relative to the legitimacy of the Coalition shifted was during the compensation process. In his initial experience with the US military lawyers, he pinpoints the lack of empathy, apology, expression of regret, or contrition as a major shortfall, expressing how he feels they did not care about his family’s lives. Additionally, he notes the amount being offered as ‘offensive,’ and notes remembering how degrading it felt to have his family’s lives reduced to $9,000.840 Basim, who works with other families seeking compensation from the Coalition, notes that the grievances against Coalition forces are widespread in the city, as many families were impacted by similar incidents, particularly the many airstrikes that occurred during the Battle of Mosul. ‘It is not only us who are angry and hurt. The Americans started this war with everyone here 836 Azmat Khan and Anand Gopal. ‘The Uncounted,’ The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html. 837 Ibid; Basim Razzo. Interview with author, 05/11/2021. 838 Ibid. 839 Basim Razzo. Interview with author, 05/11/2021. 840 Ibid. 252 supporting them, but their actions have stolen our lives from us. People are hurt and angry, but they do not seem to care.’841 He noted the treatment he experienced during compensation discussions with the Americans as particularly damaging to his perception of US Forces because of how bad that meeting with the military lawyers was. It broke my heart…It made me angry that they thought such a small amount would be right. They took my family and $9,000? They did not care.’842 Basim’s case is just one of hundreds that occurred during Coalition operations over Mosul, many resulting in civilian harm, but as Basim says, recognition and compensation are nearly non-existent beyond his case. People are angry. I try to help them with lawyers to submit [claims] for compensation. But many are denied or never hear back. When they do it is months or years of waiting. They are angry with this process. Some of the people affected, they are very poor. They have lost their house and their family and there are very few jobs. They cannot feed [themselves]. They have fewer choices than me in what they do when this happens.’843 Basim tries to help these people as much as he can. These days he continues to live in Iraq and works to help people impacted by the airstrikes to file claims and rebuild their lives. This year his priority is helping to build a school in the Old Town of Mosul to ensure children can return to some normalcy and recover from the trauma they’ve experienced. ‘They need to escape these struggles. We will have the normal classes and psychosocial services for the children and the adults. Everyone is hurt, it is needed.’844 5.6 The Al-Haj Family, Tabaqa, Raqqa, Syria, December 20, 2016845 By 2016 the CJTF-OIR coalition had begun formalizing its civilian harm investigation and response process. While not much changed in practice, new guidance outlining the specific expectations of the post-harm reporting and investigation process were released internally 841 Ibid. 842 Ibid. 843 Ibid. 844 Ibid. 845 This case study was completed with the assistance of Human Rights Watch, who had previously investigated this case. In addition to allowing the author access to their investigation materials and connections to the affected community, I am grateful for their support during data collection for this study. 253 amongst the Coalition forces. This guidance, documenting the steps and expectations to be taken by internal Coalition teams, was in place on December 20, 2016, when Coalition planes carried out an airstrike on Tabaqa, a small city outside of Raqqa, Syria. In the course of this airstrike four to five civilians, all from one family, were killed, including a man, woman, and child.846 Further reports document up to ten people seriously injured in the strike, with the raid resulting in the complete destruction of two houses and significant damage to three nearby homes.847 The incident was reported to the Coalition by the USAID Syria-Disaster Assistance and Response Team (DART) which was on the ground in Raqqa on December 24, 2016, with confirmed casualties at that time identified as 13 year old Riham Hesham Al Haj, her sister, 8 year old Rawan, and a 35 year old man named Nafiaa Abdon.848 Coordinates for the strike were provided by the USAID team and damage was visually confirmed. The family that was affected by the strike was interviewed as part of this study. According to one of the surviving men, they believe the strike was targeting a building which ISIS had previously used to collect taxes, and was located directly next to the city’s market.849 He noted that his sister’s children, ages 6 and 12, and two civilian men were killed, as well as a woman from Turkey he believed did have connections to ISIS.850 Human Rights Watch also interviewed the same family in 2017, and the information collected by their researchers then aligns with that expressed in the course of this study. However, despite these reports and widespread media coverage of the incident by local and regional media outlets, upon conducting the required FIR and IA, the Coalition has deemed the civilian harm incident as non-credible.851 Images of Reham and Rawan al-Haj before their deaths are included in Figure 5.5 below. 846 S371, Airwars, https://airwars.org/civilian-casualties/?start_date=2016-12-20&country=syria&belligerent=coalition&end_date=2016-12-21. 847 Human Rights Watch, All Feasible Precautions? Civilian Casualties in Anti-ISIS Coalition Airstrikes in Syria.’ September 24, 2017, https://www.hrw.org/report/2017/09/24/all-feasible-precautions/civilian-casualties-anti-isis-coalition-airstrikes-syria#_ftn62. 848 USCENTCOM, FOIA 18-0296L, 31/9-5/6/2019, released by The New York Times, December 21, 2021, https://int.nyt.com/data/documenttools/nc-12-20-16-syria/00aceafe5e16f834/full.pdf. 849 Human Rights Watch email correspondence with CJTF-OIR Press Desk, August 14, 2017. 850 Human Rights Watch interview with local resident, Tabaqa, 01/07/2017. 851 USCENTCOM, FOIA 18-0296L, 31/9-5/6/2019, released by The New York Times, December 21, 2021, https://int.nyt.com/data/documenttools/nc-12-20-16-syria/00aceafe5e16f834/full.pdf. 254 Figure 5.5: Images of civilians killed in December 20, 2016, airstrike852 Reham Hisham al-Haj Saleh 13 years old Rawan Hisham al-Haj Saleh 8 years old For the purposes of this evaluation, it is essential not only to examine cases where civilian harm incidents have been deemed credible by the Coalition and investigation and compensation processes undertaken, but also those cases where civilian harm has been verified to have occurred, but the Coalition deems them non-credible. This is particularly vital to assess as, in many such cases, the perceived lack of rigorous investigation (rather than solely a lack of compensation) is a key reason affected civilians point to when explaining their impressions of effectiveness, as well as their perception of the Coalition’s legitimacy. As this case did not proceed beyond the IA phase, there is less documentation to assess, though affected civilians’ impressions and perceptions were collected for all aspects. Reporting The civilian casualty incident on 20 December 2016 was reported almost immediately in local, regional, and international news outlets, with local reports naming several of the victims in their online reporting channels. These Facebook and Twitter posts by several local Syrian NGOs, including the Syrian Network for Human Rights, the Syrian Observatory for Human Rights, and online advocacy group Raqqa is Being Slaughtered Silently were publicly available.853 The 852 Images were posted publicly by the Syrian Network for Human Rights Twitter account at 8:44pm on December 21, 2016, https://twitter.com/snhr/status/811673669542014976?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E811673669542014976%7Ctwgr%5Ee681a399e0267e1d4f09a9a111266dee218c5bbe%7Ctwcon%5Es1_c10&ref_url=https%3A%2F%2Fairwars.org%2Fcivilian-casualties%2F%3Fstart_date%3D2016-12-20country%3Dsyriabelligerent%3Dcoalitionend_date%3D2016-12-21 and by the Euphrates Post, http://archive.is/sphGn. While images of the other alleged casualties have not been shared publicly, we do have social media documentation from reputable sources regarding the death of Fateh Abdoun from the Syrian Network for Human Rights. The original Facebook post via the local NGO ‘Raqqa is being Slaughtered Silently’ from December 21, 2016 is available here: https://www.facebook.com/Raqqa.Sl/posts/1397927483551832. 853 See archived media and social media reporting from these sources and others documented by Airwars at the following links: Raqqa is Being Slaughtered Silently, http://archive.is/W4W2W, http://archive.is/A0OxE, http://archive.is/2qJT2; LCCSY, http://archive.is/d3GPX, http://archive.is/az1fL and http://archive.is/0eHx7; Syrian Observatory for Human Rights, http://archive.is/pYaPz and http://archive.is/tlVsf; 255 content of their posts was known to be monitored by the Coalition in the aftermath of airstrikes to proactively assess civilian harm allegations and is reflected in the declassified documentation for this strike. On 24 December 2016 the USAID Syria DART reported the incident, including named casualties, to the Coalition through internal US government channels.854 In this case, this was an atypical method of reporting. Cross-governmental reporting of civilian harm is relatively rare based on analysis of declassified documentation and thus it is difficult to assess whether reporting channels were robust and well utilized in this case. However, based on the dates indicated for the receipt of and closure of the initial assessment the cross-department referral mechanism utilized worked smoothly. The case was reported to the US Department of Defense four days after the strike, and FIR and IA were opened in early January, with the IA closure report completed in April 2017.855 As this report was made by civilians to an Arabic speaking USAID DART team, language, culture, access, and safety were not considered to be substantial issues by affected civilians in the reporting process for this case. The reporting process that resulted was efficient in the submission, transmission and receipt of the report between USAID and the DoD and the information collected and communicated by the USAID DART was clear, detailed, and provided important information (including geo-coordinates of the strike, casualty names and ages, family contact information, and an overview of the incident from the perspective of the survivors).856 This approach to reporting is a useful example of high quality internal reporting and the speed and also allowed for additional communication, through the DART on the ground, with the survivors and families. However, in this case, despite the DART’s reliable access to survivors and their families, according to survivors and witnesses they did not receive any safeguarding support during or following the assessment period.857 Additionally, while the DART did maintain contact with the survivors and witnesses affected during the assessment process, the family noted that the DART Shaam News Network, http://archive.is/bWBlt; Syrian Network for Human Rights, http://archive.is/FQrFk and http://archive.is/I481W; Euphrates Post, http://archive.is/sphGn; Qasioun, http://archive.is/7YUMD; Syrian News Desk, http://archive.is/2ywBX; Al Jisr TV, http://archive.is/k27Fk; Baladi News, http://archive.is/X7Zlj. 854 USCENTCOM, FOIA 18-0296L, 31/9-5/6/2019, released by The New York Times, December 21, 2021, https://int.nyt.com/data/documenttools/nc-12-20-16-syria/00aceafe5e16f834/full.pdf. 855 Ibid. 856 Ibid. 857 Witness 9C (name withheld). Interview with author, 03/03/2022. 256 personnel they interacted with had little insight into how the assessment process or any resulting investigation might work, or what they could expect in terms of communication.858 Survivors and witnesses further notes that at no time did they have any communications from DoD or Coalition personnel, nor were they consulted or interviewed as part of the assessment process.859 This lack of communication with survivors and witnesses extended to the assessment findings. Survivors and witnesses noted were not informed of the outcomes of the assessment by the DART, DoD, or Coalition personnel. They were instead informed of the assessment’s findings months after its conclusion by Human Rights Watch researchers during their investigation of the incident in Spring 2017.860 When asked about their thoughts on these aspects of the reporting process, survivors and witnesses affected by this strike considered both the identified factors’ importance and influence with regards to their perceptions of how effective the process was. The individuals interviewed noted that they placed significant importance on the process of how to submit a report, safeguarding during the assessment and investigation process, and the perceived transparency of the reporting process itself. Noting that it was merely ‘luck’ that brought them into contact with the USAID DART in the days after the strike, one witness noted of this part of the process, it was simple, but I think because we had spoken to these Americans. Others who have had similar things happen to their families in Raqqa do not know who to speak to, how to find [them], anything. I don’t know either because we spoke to these Americans, and I don’t [know] if there is a different process from this.861 They noted the ease of this aspect of the process for them was influential on their initial perceptions. Another witness noted, ‘I did not expect that someone [would] come to ask about this. It seems like they had a plan. They asked us many questions and we were able to say what had happened to us.’862 Overall, the involvement of the DART and the ability to speak to someone in the US government soon after the strike seems to have influenced the affected civilians’ perceptions of legitimacy during the early reporting stages. 858 Witness 9A (name withheld). Interview with author, 07/03/2022. 859 Ibid. 860 Witness 9C (name withheld). Interview with author, 03/03/2022. 861 Witness 9B (name withheld). Interview with author, 01/03/2022. 862 Witness 9A (name withheld). Interview with author, 07/03/2022. 257 However, they highlighted concerns about the remaining aspects of the reporting process. In the aftermath of the strike several survivors and witnesses noted multiple safeguarding related concerns. Notably, one witness said, ‘the risks are from all sides’ highlighting that they felt they were in danger due to the strike itself and the potential that others in the community would assume they were ISIS supporters.863 This concern was similar to Basim’s case, although the survivors and witnesses also noted that they feared ISIS and its supporters or rebel groups supporting the Syrian government would find out they had spoken to the Americans and would target them because of this.864 Several witnesses noted that although they had asked about their safety after providing their statements when speaking with the DART, no guidance was given and no support was provided in this regard.865 Finally, witnesses highlighted that transparency and communication around the process was important to them, and a perceived lack of this following the initial report was quite influential on their perceptions of the Coalition’s effectiveness with regards to their experience. They highlighted that the DART was not able to provide them any information as to what would happen in the reporting and assessment process, how determinations around credibility would be made, or provide a point of contact during the process.866 Initial Assessment Following the report made by the DART team to the DoD on 24 December 2016, the Coalition opened a FIR and IA process in early January 2017.867 A one-page closure report was completed by CJTF-OIR on 12 April 2017 and was declassified and released as part of the New York Times Civilian Casualty Files investigation.868 In it, the investigator tasked with the assessment acknowledges the DART report and civilians killed in the strike, but makes a determination of ‘non-credible’ with regards to the allegation of civilian harm perpetrated by the Coalition.869 The non-credible determination is attributed to the distance the site is located from strikes that day which the Coalition has records for. They note that two Coalition strikes were conducted that day around Tabaqa. They note that the first strike targeted the Mushayrifah ISIL Financial Storage 863 Witness 9D (name withheld). Interview with author, 11/03/2022. 864 Ibid. 865 Witnesses 9A, 9B, 9D (names withheld). Interviews with author, 07/03/2022, 01/03/2022, 11/03/2022. 866 Witness 9D (name withheld). Interview with author, 11/03/2022. 867 USCENTCOM, FOIA 18-0296L, 31/9-5/6/2019, released by The New York Times, December 21, 2021, https://int.nyt.com/data/documenttools/nc-12-20-16-syria/00aceafe5e16f834/full.pdf. 868 Ibid. 869 Ibid. 258 facility (a target that aligns with the physical features and use of the former ISIS tax office described by civilians) however the Coalition notes that the timing of the strike noted by affected civilians does not align with the recorded time of this strike.870 Additionally, they note their recorded target of the strike was approximately 1.35 kilometres away from the site of the civilian casualty allegation. The second strike was ruled out based on geography, with this second strike targeting an ISIS artillery piece located 1.76 kilometres away from the site of the civilian casualty allegation.871 However, in the year following, multiple NGOs familiar with the case have continued to question this determination. In 2017, Human Rights Watch undertook a detailed study of this case, and communicated with the Coalition extensively on its assessment. The Coalition’s press desk has since noted that the Coalition observed the target for the first strike identified (this is thought to be the most likely attributable strike) on multiple occasions to assess a civilian pattern of life, it struck the target at night, and it selected the size and fusing of the munition to minimize potential harm from civilians.872 Despite the civilian harm allegations associated, the Coalition continues to classify this incident as a ‘non-credible’ allegation of civilian harm. Due to the preponderance of intersecting evidence from on-the-ground media and civilian reporting, NGOs like Airwars, Human Rights Watch, the Syrian Network for Human Rights, and the Syrian Observatory for Human Rights continue to classify this as a likely incident of civilian harm caused by the Coalition.873 When interviewed for this study, the families affected by the strike struggled to understand the non-credible determination. Their impressions and perceptions regarding their experience of the IA process are analyzed in the sections below. The survivors and witnesses noted that from the time of the initial report, while they were able to maintain contact with the DART, they were unable to get any updates on the assessment.874 They highlighted that they were particularly confused not only by the findings of the assessment, but more so by the fact they were not consulted during the process, not given an opportunity to provide evidence, and not directly informed of the outcomes. One witness noted they had not 870 Ibid. 871 Ibid. 872 Ibid. 873 S371, Airwars, https://airwars.org/civilian-casualties/?start_date=2016-12-20&country=syria&belligerent=coalition&end_date=2016-12-21. 874 Witness 9A (name withheld). Interview with author, 07/03/2022. 259 received the information about the ‘non-credible’ determination made in the case until Human Rights Watch researchers came to speak to them about the case in the late Spring of 2017.875 Based on this, several witnesses stated they did not feel the case was taken seriously, particularly as it seemed to them no effort was made to gather further evidence. ‘No one spoke to us. They killed our beloveds [children] but then pretend it was not [them]. They did not ask us, no contact.’876 Further, witnesses considered the length of the report released as indicative of a lack of investigation. When shown the document during the interview, another witness expressed disbelief, having never seen it before. ‘One page? That is all the time they can spare for innocent children?’877 Despite the short nature of the IA report, it does indicate that an assessment of available internal documentation was undertaken including the DART report, the target packages and associated documentation from the strikes themselves.878 Based on this, the FIR, and several screenshots (which are not available for analysis) the ‘non-credible’ determination was made. As a result, no further investigation was undertaken, and compensation and amends processes were not available to the survivors and witnesses affected. Investigation, Consequence Management, Compensation and Amends As a result of the ‘non-credible’ determination made in this case by the Coalition, the investigation process stopped after the findings from the IA were completed. While these stages were not assessed in depth during this study as they did not occur, interviews conducted with the family still included conversations on these issues. When asked about the lack of formal investigation carried out in this case, witnesses expressed anger and resentment against the Coalition. They expressed disbelief that the case had been deemed non-credible, but that they were not given an opportunity to speak with Coalition forces or provide any evidence or statements during the IA process. ‘We have evidence. I want to show them the pictures. People saw the Coalition airplane. We know it was them, but they did not speak with anyone.’879 said one witness. 875 Witness 9C (name withheld). Interview with author, 03/03/2022. 876 Ibid. 877 Witness 9A (name withheld). Interview with author, 07/03/2022. 878 Witness 9B (name withheld). Interview with author, 01/03/2022. 879 Ibid. 260 Another witness expressed disappointment that there was not an appeal process they could engage in. ‘How can we tell them they are wrong? There is no process, we cannot know how to contact [them]. We want to tell them they are wrong.’880 This was a particular point of contention for the survivors and witnesses. Many of them noted that they understood mistakes may have been made, either during the strikes or during the assessment of the strikes with very little information to assess. Their concern, as they said, was getting the truth.881 Unfortunately, the Coalition does not provide or publish guidance on whether there is an ability to appeal an IA determination, beyond contacting the Coalition PAO. While this seems to occur informally sometimes (as was demonstrated in Basim’s case during an email exchange between Azmat Khan and the Coalition PAO), there is no public guidance or a specific point of contact to address such appeals. Finally, survivors and witnesses expressed disappointment that they would not be able to access any compensation. ‘Our lives were destroyed. We [are] broken and we have nothing. It is very hard to start [again] like this. There is no one that can help because there are no jobs here. It is very bad.’882 Another witness talked about their perception of a lack of justice. ‘They killed [the girls] but nothing. They give nothing. Do they feel bad?’883 Another witness expressed a feeling of ‘numbness’ and spoke about retaliation in the aftermath. ‘they say the[y] did not do this, but there are people dead. Someone did this. But no responsib[ility]. I am angry. They do not recognize what they did. Do not apologize. And then they wonder why people become angry?’884 The lack of opportunity for appeal and no opportunity for acknowledgement or compensation were factors that weighed heavily on survivors and witnesses in this case. Being denied these opportunities due to the non-credible determination was a major factor in the feelings of resentment and discussions around retaliation for witnesses. 880 Witness 9C (name withheld). Interview with author, 03/03/2022. 881 Ibid. 882 Witness 9A (name withheld). Interview with author, 07/03/2022. 883 Witness 9D (name withheld). Interview with author, 11/03/2022. 884 Witness 9E (name withheld). Interview with author, 12/03/2022. 261 Assessment of Effectiveness Based on the analysis and data collected in the case study, in this case the post-harm compensation and amends processes indicate ineffectiveness in contributing to counterinsurgency objectives of maintaining legitimacy in the aftermath of civilian harm incidents and guaranteeing Syrian civilians’ safety and security as espoused in the Coalition’s mission statement. Based on the data collected during the case study and in interviews with affected civilians, the evidence shows civilian perceptions regarding the fulfilment of key factors across the reporting and initial assessment stages were resoundingly negative, with no other stages of the response process occurring due to a non-credible finding. Civilians who participated in this study noted the lack of transparency, communication, and consultation during the process as particularly detrimental to their perceptions of the Coalition’s legitimacy. Figure 5.6 below provides a visual overview of the ways in which the al Haj family case maps to the theory of effectiveness elucidated in Chapter 1 and 2. Figure 5.6: Visual Mapping of al-Haj family case to Theory of Effectiveness 262 In this case, based on the content of the interviews, the declassified documentation relating to the strike, the civilian harm response process enacted by the CJTF-OIR coalition was insufficient to be effective in maintaining or retaining the support of affected families and communities. While the reporting stage of this case demonstrated some indications of effective conduct, particularly the collaboration between the USAID Syria DART and the Coalition, the stages that followed, including the initial assessment, did not meet the expectations of the affected community and therefore was ineffective across multiple evaluation points. Most notably, the lack of transparency and communication during the IA stage, and the lack of opportunity to provide witness statements or evidence to the process resulted in affected civilians feeling increased animosity towards Coalition forces, who they hold responsible for the strike. The Coalition continues to designate this strike as ‘non-credible,’ noting from their initial assessment that it is more likely than not that Coalition forces were not involved in the incident. However, evidence collected by NGOs on the ground portray a different story– that it is likely Coalition forces were involved in the strike and the geo-coordinates the Coalition documented of their own strike may have been recorded incorrectly.885 The site description matches the strike that killed Reham, Rawan, and Fateh and multiple sources saw Coalition planes in the area at the time of the strike. Given this information, the family expressed significant discontent that a fuller investigation was not undertaken and expressed that they felt angry and offended that their loved one’s lives were reduced to a single page. While the Coalition is not obligated to pursue investigations for cases deemed ‘non-credible’ based on their current policy guidance, not doing so has been strategically harmful in this case, with multiple witnesses expressing anti-Coalition and anti-Western views during interviews.886 With contradicting evidence from both civilians and NGOs, a fuller investigation that included a determination of attribution for the strike (whether Coalition, Syrian, or Russian) was a core priority for the family. Their main consideration is not seeking compensation, but they continue to struggle with a long-term sense of injustice that has led to the shifts in witnesses’ views of the Coalition and the West more generally. 885 Azmat Khan, Haley Willis, Christoph Koettl, Christiaan Triebert, and Lila Hassan. “Documents Reveal Basic Flaws in Pentagon Dismissals of Civilian Casualty Claims’ The New York Times, January 6, 2022, https://www.nytimes.com/2021/12/31/us/pentagon-airstrikes-syria-iraq.html. 886 Witness 9A (name withheld). Interview with author, 07/03/2022; Witness 9B (name withheld). Interview with author, 01/03/2022. 263 5.7 Summary The data collected during interviews and the factor analyses across these three cases indicates clear trends in the ways in which civilians’ perceptions of both effectiveness and legitimacy of counterterrorism forces, such as CJTF-OIR, are influenced by the Forces’ level of engagement in post-harm response and compensation processes in the aftermath of civilian harm incidents. Civilians hold specific expectations for how legitimate actors respond to civilian harm incidents and make decisions about their level of support for conflict actors based on the information they receive during this process. With the differentiation in operation type– the CJTF-OIR mission being focused on countering terrorism versus insurgency– it was expected that the relationship between civilian harm response and compensation would have less influence on civilian’s legitimacy perceptions and that civilian perceptions would have less influence on operational effectiveness and mission success. However, based on the cases examined above, we see the opposite result. Families and communities impacted by civilian harm incidents caused during a counterterrorism operation still make decisions about actor and action legitimacy based on their perception of how effective a post-harm response and compensation process is to them; however, this largely would not create a push factor to support ISIS, but rather other armed groups. Using the pre-established criteria for evaluation, civilians impacted by these incidents consistently noted that the investigation and compensation process directly influenced their perceptions of and changing levels of support for CJTF-OIR. Table 5.2: Summary of Case Outcomes in Iraq and Syria Incident Date & Location Investigation Status Compensation Provided? Civilian Expectations Met? Support obtained, retained, regained? Effectiveness Prediction Effectiveness Evaluation June 3, 2015; Hawijah, Kirkuk, Iraq Completed Yes No No Ineffective Ineffective Sept 20, 2015; Razzo family compound, Mosul, Iraq Completed Yes Partial No Partial Effectiveness Partial Effectiveness December 20, 2016; Tabaqa, Syria No No No No Ineffective Ineffective 264 The cases under study in this Chapter depict many similarities during the civilian harm response process which was implemented in the aftermath of the incidents. However, they also differ in important ways. Each of them indicates a different point of breakdown in the response process. Based on the evidence evaluated in this study, the earlier the breakdown in the expectations of civilians vis a vis the commitment and performance of Coalition forces against those factors, the higher the risk of ineffectiveness and decreased legitimacy. For example, in the Hawija case, while reporting issues were present, due to the widespread media coverage, the disparity between civilian expectations for accountability and the Coalition’s investigative process and lack of transparency became increasingly evident. These factors, indicative of breakdowns in normative and procedural legitimacy were significant factors in the animosity that built among affected families. With no information on who was responsible for the strike until four years after the event, they were stuck in a stalemate, unable to take further steps to pursue justice, including compensation. The Dutch avoidance of publicly taking responsibility for the strike until four years after the event, despite clear evidence demonstrating their awareness of their responsibility, was also negatively impacted their normative and performance-based legitimacy amongst Hawija residents. This influenced the ways in which they thought about the purpose and approach to compensation, including the community-centric approach taken by the Dutch government. The majority of Hawija residents seem to view this community-level approach to compensation as a shirking of responsibility by the Dutch government, undermining the normative expectations Hawija residents held of legitimate actors. In the case of the Razzo family, despite Basim’s extensive efforts to make a report through multiple channels, administrative issues meant that his report and documentation was lost for over a year, leading to long delays to initiating the investigation, and ultimately beginning the compensation process. While Basim maintained hope during this time for resolution, these delays negatively influenced his perceptions of the Coalition’s procedural and performance-based legitimacy. However, for Basim, the most consequential aspect was the compensation process. Difficult to navigate from the start, Basim noted that the lengthy timelines, lack of care or empathy in the American process, and low amounts offered severely impacted his perceptions of the Coalition’s normative legitimacy as he was offered $9,000 for his home, cars, dog, and 265 lives of his family members. He notes that the Dutch compensation process was an improvement on these experiences, but still negatively influenced his perceptions of Dutch procedural and performance-based legitimacy due to long timelines, and significant barriers to access the process, including the need for a Dutch lawyer and translation and interpretation support to navigate the process. Finally, in the case of the Al-Haj family in Tabaqa, despite internal US-government reporting, the strike was deemed non-credible and thus, the process stopped at the initial assessment phase. No investigation or compensation process have ever been undertaken, angering the family and influencing a considerable shift in their perceptions of the Coalition’s legitimacy vis a vis other actors. While the family’s initial interactions with the USAID DART team were perceived positively and stabilized their perceptions of Coalition procedural and performance-based legitimacy, this impact was brief, as all other components of the process halted. Family members point to the lack of subsequent investigation and compensation and a near complete lack of transparency and communication as significant factors influencing their negative perception of Coalition normative, procedural, and performance-based legitimacy in the aftermath of the incident. In some cases, like Basim Razzo’s, this shift in perceptions is not placed in a binary. While he and his family are not hostile to Western forces, he is clear he will not actively support the American-led coalition or their activities. This decreased support of American and Western forces, however, has not swayed them in their strong anti-ISIS views. However, in Hawija and Tabaqa, the potential impact on population support for insurgent groups is more evident in the testimonies shared by interviewees. In Hawija, while most residents affected by the Dutch airstrike remain staunchly anti-ISIS, others, particularly those who are struggling to find work or meet the basic needs of their families due to the impact of the strike, have considered joining the other militant groups. These considerations tend to be more practical than extremist. Having not received individual financial compensation in relation to the Dutch airstrike, many are struggling to feed their families and see joining the militant group as a last resort to do so. However, still others see the benefits of a response and compensation process, indicating a willingness to accept that mistakes were made and accidents can happen. These groups appear to be more stable in 266 their support of the Coalition and also tend to appear more open to the justice and accountability a response and compensation process could provide. For them, however, the current lack of acknowledgement and apology and the current form of compensation has caused significant resentment. Shortly after the completion of the data collection phase for these cases, Colonel John Thomas, a spokesman for US Central Command, stated publicly that with Mosul and Raqqa now out of ISIS control the Coalition is “not going to spend a lot of time thinking about” condolence payments.887 He noted that “we’re putting our efforts into community safety and returning refugees to some sort of home.”888 While certainly viewed as a worthwhile cause by affected communities, authorities should still be concerned by the impact on their legitimacy-centric goals if civilian harm response and compensation are not taken seriously. Even with the release of the US Department of Defense’s new CHMRAP, the DoD has not committed to investigating or providing compensation for cases in which the harm occurred prior to 2022, leaving communities impacted by the majority of airstrikes undertaken by CJTF-OIR with few options for recourse. While civilian perceptions in the aftermath of civilian harm incidents are less likely to have direct impacts on the strategic success of counter-terrorism operations in comparison to counterinsurgency operations, the impact on CJTF-OIR success is still observable now and is likely to remain so in the future. The widespread experience of civilian harm incidents combined with fewer cases resulting response, compensation, and amends procedures has had a significant toll on the Iraqi and Syrian populations’ perception of the Western coalition’s legitimacy. This is an important result of this study, particularly in demonstrating that the legitimacy-centric focus of counterinsurgency carries over into air-based counterterrorism campaigns. Notably, in that civilian harm incidents continue to cause the Coalition to lose legitimacy, even when the majority of the affected population originally supported their efforts and would not consider supporting the Coalition’s direct adversaries despite their experiences. Unlike in cases of civilian harm in Iraq and Afghanistan, where attacks on individuals or families often resulted in 887 Azmat Khan and Anand Gopal. ‘The Uncounted,’ The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html. 888 Ibid. 267 militarized backlash against Coalition forces, these individualized cases are less likely to have significant force protection-related impacts on the achievement of CJTF-OIRs mission. Yet, despite this, these cases have demonstrated there are significant long-term strategic consequences for the achievement CJTF-OIR’s legitimacy-centric mission objectives. Yet, despite these consequences, based on the cases explored in this chapter there was no clear differentiation in how cases with fewer casualties versus large-scale instances of harm were handled, despite the considerable strategic impact these had on Coalition objectives. Thus, there is a clear lack of congruence with stated mission goals as well as the normative legitimacy expectations that remain significant features in the perceptions of legitimacy held by affected community. As a result, and given the Coalition’s mission statement focuses on obtaining and maintaining regional security, and providing the conditions of a safe and secure environment to Iraqi and Syrian civilians, there are still significant impacts for mission success, particularly in areas where civilian harm and resulting animosity reach critical mass. Yet none of these goals are currently being met in the aftermath of civilian harm incidents.889 As demonstrated in the Hawija case, mass casualty incidents resulting from Coalition operations have serious reputational, legitimacy, and operational consequences for CJTF-OIR. The Coalition’s ability to operate safely and effectively in and around the city is significantly hampered by the widespread discontent and animosity towards Western forces. Further, in areas where there have been multiple or widespread cases of civilian harm caused by the coalition, such as in Mosul and Raqqa, there is also a significant uptick in anti-American and anti-Western sentiment among residents of previously strong pro-Coalition communities. These pockets of anti-American/Western sentiment may not have an immediate effect on the air campaign still occurring over Iraq and Syria, but in these cities with strong histories of rebellion and unrest, it is not remiss to consider that there may be long-term implications, including increased violence, and facilitation of illegal industries, that run contrary to the counter-terrorism mission objectives stated by the Coalition. The cases under study in this chapter demonstrate several important conclusions. First, that in counterterrorism operations, like counterinsurgency operations, civilian support remains a key 889 My thanks to Richard Price for the analysis above. 268 battleground for conflict actors. While most civilians in these cases viewed ISIS with significant fear and disdain, over the course of the conflict there has been a significant shift in the level of support and trust Iraqi and Syrian civilians have in Coalition forces. While there is no evidence to support a concern that most civilians in these cases would consider joining the militant group, the majority have expressed anti-American and anti-Western as a direct result of their experiences. Noting that the indifference with which Coalition forces approached the response and compensation process was a significant factor in why their perceptions of Coalition legitimacy changed. Secondly, these cases demonstrated that the form, timing, and approach to compensation matters greatly to civilian perceptions of legitimacy in the aftermath of harm. While participants from Hawija noted dissatisfaction and lack of trust in the Dutch government and discontent regarding the community level funding rather than individual financial compensation as particular issues fuelling the shift in their legitimacy perceptions, Basim pointed to the length of time and inaccessibility of the investigation and compensation process as key reasons for the shift in his legitimacy perceptions of the Coalition. Finally, in the Tabaqa case, it is evident that compensation is not the only key factor that shapes civilian perceptions of legitimacy post-harm. A thorough investigation, even in cases where credibility is unclear, are vital to maintaining positive perceptions of Coalition legitimacy. In the aftermath of violent conflict, affected communities seek justice in many ways: acknowledgement, reparations, criminal accountability, and sometimes, violence.890 In the cases of civilian harm, response, and compensation documented here, it is clear in each case that those affected are not ready to forget or forgive what happened to them. Further, they are not willing to continue to have their basic needs left unmet or accept indifference and a perceived lack of contrition from those who perpetrated the harm against them. For CJTF-OIR, this declining legitimacy amongst civilian populations runs directly counter to the Coalition’s stated mission of bringing enduring security to the people of Iraq and Syria. The Coalition must more seriously consider the potential risk of not undertaking thorough investigations and providing comprehensive culturally appropriate compensation that meets families’ specific needs alongside an expression of contrition, regret, or apology. These are the factors most civilians impacted by 890 Azeem, Saba, Lauren Gould, Erin Bijl, Jolle Demmers, After the Strike: Exposing the Civilian Harm Effects of the 2015 Dutch Airstrike on Hawija (Colophon, 2022), https://paxforpeace.nl/media/download/PAX_REPORT_HAWIJA_04.pdf, 101. 269 these incidents prioritize as determinants of legitimacy in the aftermath of harm. The research contained here demonstrates that the absence of these factors is directly correlated with a deterioration in the perceptions of Coalition legitimacy and relations between civilians and Western forces in the communities impacted by civilian harm incidents. Robust civilian harm response and compensation approaches are not a luxury, but a key necessity in ending the cycle of violence and grievances in Iraq and Syria and securing the local and regional security the Coalition seeks. 270 Chapter 6: Conclusion In the days following the Fall of Kabul to the Taliban in August 2021, mass evacuations began to take place at Hamid Karzai International Airport. As the airport was overwhelmed with civilians desperate to escape the punishing rule of Taliban forces, a suicide bomber attacked from within the crowd. 183 people were killed in the explosion, including 170 civilians and 13 American military personnel.891 The attack sent waves of terror throughout the capital, with US forces receiving intelligence that follow-on attacks from ISIS were imminent. Following the explosion, and with Taliban forces taking increasing control of Kabul’s neighbourhoods and institutions, Nutrition and Education International, a California based aid group, and their staff were still operating, doing their best to continue to provide support to vulnerable families while taking precautions to protect themselves from harm. On 29 August 2021, Zemari Ahmadi, an Afghan aid worker employed by Nutrition and Education International, was running errands for the organization in a 1996 Toyota Corolla—dropping off water to vulnerable people and picking up a laptop from another employee.892 Unbeknownst to Ahmadi, US Reaper drones had been tracking his movements throughout the day. A stop he had made early that morning was at a house suspected to be an Islamic State safe house in Kabul. American Reaper UAVs were watching.893 Two men exited the Toyota Corolla and met another man at the house, took a bag from him and returned to the car.894 Following what appeared to be a fleeting interaction with several people at the house, US forces began to suspect the driver of the 1996 Toyota Corolla was a suicide bomber driving a car laden with explosives. Without his knowledge, Ahmadi was tracked for the next eight hours.895 Shortly before 5:00pm Ahmadi arrived at his family’s compound in the Khaje Mugra neighbourhood of Kabul where several of his brothers lived with their families. One of Ahamdi’s brothers was already outside in the courtyard, loading several of his kids into a car as they prepared to depart for a family event. No one noticed the shadows overhead—six US military 891 Helene Cooper and Eric Schmitt, “Video Footage Showed at Least 1 Child Near Site Minutes before Drone Strike in Kabul.” The New York Times, November 3, 2021, https://www.nytimes.com/2021/11/03/us/politics/drone-strike-kabul-child.html. 892 Eric Schmitt, “A Botched Drone Strike in Kabul started with the Wrong Car.” The New York Times, September 21, 2021, https://www.nytimes.com/2021/09/21/us/politics/drone-strike-kabul.html. 893 Ibid. 894 Ibid. 895 Ibid. 271 Reaper UAVs had surrounded the compound as Ahmadi backed his car into the courtyard. Several children ran out to greet Ahmadi as he arrived—one climbing excitedly into his car. The heart-warming moment ended moments later, when at 4:53pm a single Hellfire missile was launched from one of the UAVs, killing Ahmadi, two other adult family members, and 7 children—all from the same family. 896 Figure 6.1 below provides images of the damage the airstrike caused to the car and compound. Figure 6.1: Images of damage caused to the car and compound struck in the 29 August 2021 airstrike897 Figure 6.2 provides images of eight of the Ahmadi family members killed in the 29 August 2021 drone strike, including Zemari, 40 years old; Naseer, 30 years old; Zamir, 20 years old; Faisal, 10 years old; Farzad, 9 years old; Armin, 4 years old; Binyamin, 3 years old; and Sumaya, 2 years old. Two other children were also killed, three-year-old Malika and two-year-old Ayat, though photos are not available. 896 Eric Schmitt and Helene Cooper, “Pentagon acknowledges Aug. 29 drone strike in Afghanistan was a tragic mistake that killed 10 civilians.” The New York Times, September 17, 2021. https://www.nytimes.com/2021/09/17/us/politics/pentagon-drone-strike-afghanistan.html. 897 Jim Huylebroek for the New York Times in Eric Schmitt, “A Botched Drone Strike in Kabul started with the Wrong Car.” The New York Times, September 21, 2021, https://www.nytimes.com/2021/09/21/us/politics/drone-strike-kabul.html and Charlie Savage, Eric Schmitt, Azmat Khan, Evan Hill and Christoph Koettl, “Newly Declassified Video Shows US Killing of 10 Civilians in Drone Strike.” The New York Times, January 19, 2022, https://www.nytimes.com/2022/01/19/us/politics/afghanistan-drone-strike-video.html. 272 Figure 6.2: Images of Ahmadi family members killed in 29 August 2021 Kabul airstrike898 Zemari, 40 years old Naseer, 30 years old Zamir, 20 years old Faisal, 10 years old Farzad, 9 years old Binyamen, 3 years old & Armin, 4 years old Sumaya, 2 years old After identifying remains and separating them into coffins at a Kabul hospital the following day a funeral took place for those who were killed. Through their grief, family members shouted, “Death to America.”899 The compound thought to be the ISIS safe house turned out to be the home of Ahmadi’s boss, the country director of Nutrition and Education International. The ISIS safe house, on reflection, is thought to have been a neighbouring home. Figure 6.3 below provides images of the Ahmadi family during the funeral for their family members. Figure 6.3: Image of the Ahmadi family mourning during the funeral for their family members900 898 Sandi Sidhu, Nick Paton Walsh, Tim Lister, Oren Lieberman, Laura Smith-Spark and Saskya Vandoorne, “Ten family members, including children, dead after US strike in Kabul.” CNN, August 30, 2021, https://edition.cnn.com/2021/08/29/asia/afghanistan-kabul-evacuation-intl/index.html. 899 Ibid. 900 David Pierson and Marcus Yam, “An errant US drone strike killed 10 members of their family. They’re still awaiting compensation.” Los Angeles Times, October 12, 2021, https://www.latimes.com/world-nation/story/2021-10-12/afghan-survivors-of-u-s-drone-strike-still-waiting-for-compensation. 273 The strike was carried out by U.S. Central Command’s Over the Horizon (OTH) Strike Cell, from thousands of miles away, with the closest team members based in Qatar. In the immediate aftermath of the strike, American forces stuck by their intelligence, noting the strike was carried out in self-defence against the imminent ISIS threat to the airport. A spokesman from US Central Command added more, noting that “powerful subsequent explosions resulting from the destruction of the vehicle, indicating a large amount of explosive material inside that may have caused additional casualties.”901 It was not until a New York Times investigation of video evidence challenged the assertions that US forces admitted any wrongdoing.902 Under increasing public and media pressure, US forces made a rare move—they admitted responsibility for the airstrike and civilian casualties that resulted, admitting the strike was a ‘mistake’ and based on incorrectly interpreted intelligence which established a flawed Pattern of Life assessment that justified the strike in a case of mistaken identity.903 General Kenneth F. McKenzie Jr., the commander of US Central command admitted wrongdoing publicly, stating “Clearly our intelligence was wrong on this particular white Toyota Corolla. We thought this was a good lead. We were wrong.”904 Later in his remarks, General McKenzie made a rare move, providing a public apology for the incident, saying “It was a mistake, and I offer my sincere apology.”905 An independent inquiry followed, undertaken by the US Air Force’s inspector general, Lieutenant General Sami D. Said. In his report, Said noted that planners involved in the strike “had a genuine belief that there was an imminent threat to US forces” but that “a series of assumptions, made over the course of eight hours as US officials tracked a white Toyota Corolla through Kabul” caused what he called ‘confirmation bias’ in the assessment of Ahmadi’s movements. 906 He noted that US forces’ intelligence regarding a Toyota Corolla likely to be used in a second attack on the Kabul airport led to an “assessment [that] was primarily driven by interpretation. Regrettably, the interpretational assessment was 901 CNN, “US says a secondary explosion after a strike against an ISIS-K threat “may have caused” civilian casualties”, CNN August 29, 2021, https://edition.cnn.com/world/live-news/afghanistan-kabul-taliban-us-news-08-29-21/index.html. 902 Charlie Savage, Eric Schmitt, Azmat Khan, Evan Hill and Christoph Koettl, “Newly Declassified Video Shows US Killing of 10 Civilians in Drone Strike.” The New York Times, January 19, 2022, https://www.nytimes.com/2022/01/19/us/politics/afghanistan-drone-strike-video.html; Matthieu Aikins and Alissa J. Rubin. “First tied to ISIS, then to US: Family in Drone Strike is Tarnished Twice,” The New York Times, https://www.nytimes.com/2021/09/18/world/asia/afghanistan-drone-strike-reaction.html. 903 Eric Schmitt, “A Botched Drone Strike in Kabul started with the Wrong Car.” The New York Times, September 21, 2021, https://www.nytimes.com/2021/09/21/us/politics/drone-strike-kabul.html. 904 Ibid. 905 Ibid. 906 Helene Cooper and Eric Schmitt, “Video Footage Showed at Least 1 Child Near Site Minutes before Drone Strike in Kabul.” The New York Times, November 3, 2021, https://www.nytimes.com/2021/11/03/us/politics/drone-strike-kabul-child.html. 274 inaccurate.”907 However, while he acknowledged that the strike was a mistake, he argued that it did not amount to negligence. A second inquiry was ordered by Defense Secretary Lloyd J. Austin III of this initial inquiry to “determine, among other issues, who should be held accountable and “the degree to which strike authorities, procedures and processes need to be altered in the future.”908 However, despite widespread calls for accountability for the US military commanders and operators who had been involved in the strike, both Said and the second inquiry ordered by Secretary Austin “found no violations of law” and did not recommend any administrative or criminal disciplinary action.909 This decision was shocking to many. Steven Kwon, the founder and president of Nutrition & Education International expressed “This decision is shocking. How can our military wrongly take the lives of 10 precious Afghan people and hold no one accountable in any way?”910 This lack of accountability was compounded by US forces lack of engagement in post-harm response or compensation in the immediate aftermath of the strike. Six weeks after the strike, Zemari’s brother Emal, had not yet been contacted by the US government to apologize or offer help. He expressed his frustrations to New York Times reporters in October 2021, asking “Why are they not contacting us? Why are they not reaching out to us? We lost 10 members of our family. It’s very difficult for me, for our family, for all of us. I’m so angry, I’m so sad.”911 Having lost his job in the Fall of Kabul, Emal is now struggling to provide for the needs of an extended family of 15 without the help Zemari, Naseer, and Zamir.912 Although General McKenzie offered his ‘sincere and profound condolences’ to the family in a 17 September 2021 news conference, Emal was clear about his expectations.913 He sought a personal apology to his family, meaningful compensation, and for the US to help his family relocate to safety.914 907 Ibid. 908 Ibid. 909 Ibid. 910 Eric Schmitt, “No US Troops will be Punished for Deadly Kabul Strike, Pentagon Chief Decides” The New York Times, December 13, 2021, https://www.nytimes.com/2021/12/13/us/politics/afghanistan-drone-strike.html. 911 David Pierson and Marcus Yam, “An errant US drone strike killed 10 members of their family. They’re still awaiting compensation.” Los Angeles Times, October 12, 2021, https://www.latimes.com/world-nation/story/2021-10-12/afghan-survivors-of-u-s-drone-strike-still-waiting-for-compensation. 912 Ibid; Matthieu Aikins and Alissa J. Rubin. “First tied to ISIS, then to US: Family in Drone Strike is Tarnished Twice,” The New York Times, https://www.nytimes.com/2021/09/18/world/asia/afghanistan-drone-strike-reaction.html. 913 Ibid. 914 Ibid. 275 In early January 2022, the US seemed to begin to engage in these discussions through Hina Shamsi the ACLU lawyer representing Nutrition and Education International and the family. According to Shamsi, the US government has offered to resettle the surviving relatives of the victims as well as Afghan employees of Nutrition & Education International as well as to make unspecified condolence payments. 915 These offers were made in a virtual meeting between Colin H. Kahl, the Undersecretary of Defense for Policy, and Steven Kwon. However, as Shamsi noted at that time, that “We aren’t even discussing compensation [yet] because our clients’ safety comes first.”916 Although condolence payments were not discussed in detail during this meeting, it was a topic of further discussions in future calls. To date, no information has been released publicly regarding these payments. Although two elements of the family were safely relocated outside of Afghanistan in January 2023, the remainder of the extended family affected still remains in Afghanistan. The cases explored in this study are sadly far from unique. Despite ample normative and legal restrictions on causing civilian harm in armed conflict, in conflicts around the world civilians are falling victim to conflict-related violence at alarming rates. While battlegrounds like Iraq, Afghanistan, and Syria have seen the highest levels in recent history, countries like Somalia, Pakistan, Nigeria, Mali, Yemen, and Ukraine are experiencing increasingly high rates of civilian harm incidents caused by foreign forces in the last decade as well. Despite the legal and normative restrictions and improvements in Western militaries’ efforts to mitigate harm, these approaches are still falling short of protecting civilians from the harms of armed conflict. Yet, in population-centric counterinsurgency and counterterrorism operations, when civilian harm does occur it has not only moral and legal consequences, but strategic ones as well. With the primary objectives of both contemporary counterinsurgency and counterterrorism operations focused on winning legitimacy in the eyes of the population vis a vis their adversaries and establishing regional security, civilian harm incidents create conditions contrary to these goals. In the aftermath of these incidents, affected communities negatively update their perceptions of COIN actors, losing confidence in counterinsurgents’ stated intentions and capabilities to protect civilians and provide security. 915 Ibid. 916 Ibid. 276 6.1 Findings & Contributions of Research This study has been predicated on a theory of effectiveness which argues that for Coalition forces, and by implication, any forces involved in operations with similar goals, to achieve their legitimacy-centric strategic objectives in the aftermath of civilian harm incidents, the crucial determinant of ‘success’ is the extent to which they are able to meet the needs and expectations of affected survivors, their families, and communities in the aftermath. In short—their ability to effectively manage consequences in the aftermath of civilian harm is determined by civilian perceptions of whether Coalition forces demonstrate alignment with civilians’ normative, procedural, and performance-based expectations of legitimate actors in the aftermath of civilian harm. Having worked with communities affected by civilian harm incidents, I analyzed each of the nine cases in this study against 37 determinants of civilian perceptions of legitimacy during the response and compensation process. Using a combination of process tracing and qualitative comparative techniques informed by archival research and interviews with affected communities, military personnel, and strategic decisionmakers, I analyzed the available data to assess the relative effectiveness of the process, including which factors had particular influence on civilian perceptions of Coalition legitimacy in each case. In each of the nine cases, the predicted level of effectiveness established at the start of this study was confirmed by the evidence. Table 6.1 below provides an overview of these findings, with results showing that of the nine response and compensation processes analyzed, five were considered to be ineffective, three considered partially effective, and one considered effective by affected communities. 277 Table 6.1: Effectiveness Outcomes for ToC of Effectiveness versus Predictions for each Case # Incident Date & Location Investigation Status Compensation Provided? Civilian Expectations Met? Support Prediction (Is support obtained, retained, or regained?) Effectiveness Prediction Effectiveness Outcome 1 June 26, 2003; Hay al Jihad, Baghdad, Iraq No Partial No No Ineffective Ineffective 2 Aug 28, 2005; Hay al Adel, Baghdad, Iraq Completed Yes Partial Yes Partial Effectiveness Partial Effectiveness 3 Dec 31, 2006; NE Ramadi, Tikrit, Iraq Completed Yes Yes Yes Effective Effective 4 Feb 12, 2010; Khataba, Gardez, Paktia, Afghanistan Completed Yes Partial No Partial Effectiveness Partial Effectiveness 5 14 May 2010; Kashkaki family compound, Nangarhar, Afghanistan No No No No Ineffective Ineffective 6 Sept 16, 2012; Noorlam Sahib Valley, Laghman, Afghanistan Completed No* No No Ineffective Ineffective 7 June 3, 2015; Hawijah, Kirkuk, Iraq Completed Yes No No Ineffective Ineffective 8 Sept 20, 2015; Razzo family compound, Mosul, Iraq Completed Yes Partial No Partial Effectiveness Partial Effectiveness 9 December 20, 2016; Tabaqa, Syria No No No Ineffective Ineffective Ineffective 278 These case findings were validated and verified against the overarching legitimacy-centric theory of change by both the author and the working group of military personnel and civil society experts originally involved in developing the ToC. In each case, the working group confirmed the effectiveness outcomes identified in Table 6.1. In cases where CHRC is undertaken effectively in line with civilian needs and expectations, such as the case of the Abadi family, evidence demonstrates that the CHRC theory of effectiveness holds true. As depicted in Figure 6.4 below, Coalition forces can ‘offset’ (not negate) some of the negative impact of the civilian harm incident by demonstrating their normative, procedural, and performance-based legitimacy in other ways using the response and compensation process, thereby setting conditions for short- to medium-term legitimacy stabilization, allowing counterinsurgency forces the opportunity to rebuild protection-centric trust with the affected community in the aftermath and the opportunity to achieve their strategic objectives. 279 Figure 6.4: Visual Overview of Legitimacy-Centric COIN Theory of Change for CHRC in ‘Effective’ Case 280 However, left unaddressed affected communities experience significant hardships including grief, anger, disability, long-term mental health concerns, lack of access to basic necessities, loss of income and unemployment, and displacement, among others, as in the cases of the al-Qubaisi family, the Kashkaki family, the families of the women killed in the Noorlam Sahib Valley, the families of the victims in Hawija, and the al-Haj family. Often, if the armed actors responsible for the civilian harm incident do not seek to mitigate these hardships, civilian communities negatively update their perceptions of Coalition forces again, losing confidence that counterinsurgents hold shared norms and values with them (normative legitimacy), are able or willing to conform with established rules (procedural legitimacy), or have the ability to wield their power properly and effectively (performance legitimacy).917 Figure 6.5 below provides a visual overview of the impact of ineffective civilian harm response and compensation on the COIN theory of change, a useful comparison to the ToC of an effective civilian harm response and compensation process elucidated in Figure 6.4. 917 Alagappa, 1995. 281 Figure 6.2: Visual Overview of Legitimacy-Centric COIN Theory of Change for CHRC in ‘Ineffective’ Case The same remains true in cases where Coalition forces’ have enacted some CHRC procedures but their engagement in a response and compensation process is poorly executed or only partially meets the expectations of affected communities. These cases are deemed partially effective, and include the Khaled and Kadhem families, the Sharabuddin family, and the Razzo family. Such cases tend to be a mix of good and poor practice throughout the CHRC process, with some demonstrating good performance across the reporting and initial assessment phases but poor practice across the investigation and compensation and amends phases and others demonstrating poor performance across the reporting and initial assessment phases, but improved practice during the investigation and compensation and amends phases. Importantly, a key finding of this 282 study is that in partially effective cases, the relative importance of CHRC phases matters greatly to outcomes. Notably, while poor practice across the reporting and initial assessment phases can be offset by better practice across the investigation and compensation and amends phases in terms of civilians’ perceptions of CHRC effectiveness, the reverse is not true. Good practice across the reporting and initial assessment phases cannot make up for later poor practice in the investigation and compensation and amends stages in terms of civilians’ perceptions of CHRC effectiveness. Thus, when CHRC efforts do not meet civilians’ needs and expectations overall, partial effectiveness can still result in legitimacy stabilization if performance during at least the investigation and compensation and amends stages is perceived positively by affected communities. However, negative strategic outcomes are distinct possibilities as well if issues that may have arisen during the investigation and compensation and amends are not remedied in line with the needs and expectations of affected communities. The consequences of not doing so are strategically significant. In such cases, the support of these communities for Coalition forces is often severely compromised, resulting in the civil-military relations critical to the achievement of their legitimacy-centric strategic objectives being partially, if not fully, undermined. Where this occurs, insurgents often attempt to capitalize on fractured civil-military relations between affected communities and counterinsurgents to increase their own levels of population support. This often results in increases in tacit or explicit support from affected communities to insurgent forces, including by providing information on COIN troop movements and operations to insurgents, providing locations to stay, monetary support, or in a few cases, personnel support to insurgent causes. The cases analyzed in this study provide empirical evidence to support these outcomes. However, this does not necessarily mean that civilians who experience civilian harm incidents and are not satisfied with CHRC efforts in the aftermath will automatically support insurgents and evidence to support a case that further radicalization may occur is scant (and would require a long-term longitudinal study beyond the scope of this project). Importantly, communities are not without agency and choice in such circumstances and not all support choices are a clear binary between insurgency and counterinsurgency forces. In all cases analyzed in this study, affected 283 civilians were likely to revert to considering the relative benefits different actors can provide to them post-incident, particularly with regards to protection. They then re-evaluated the options for their protection and security available from insurgents, counterinsurgents, and other actors and pragmatically recalibrated their tacit and explicit support of these actors accordingly. In some cases, where trust and protection options were limited or considered morally consequential to the civilian communities, they took steps to take on protection of their families and communities themselves vis a vis counterinsurgents (directed revenge, further arming families and communities, building protective structures, taking on community security patrols, etc.). These recalibration approaches were particularly evident in the Razzo and the Kashkaki family cases. In both, affected civilians expressed that their support choices in the aftermath of the incident and CHRC efforts were never considered in a binary between the Coalition or ISIS or between the counterinsurgents and the Taliban. In both cases where CHRC was only partially effective, families and communities expressed a different motivations for their choices. Some spoke about revenge vis a vis the counterinsurgency forces that harmed them (but this has little to do with choices to support insurgent or terrorist groups), while others speak about how the incident would not inspire them to revenge but will mean they actively or explicitly withhold critical support (information, access to key geographical areas, etc.) from those responsible in the future. 6.2 The Impact of Response and Compensation Effectiveness on the Theory of Change The nine cases explored in this study provide an analysis of Coalitions’ response and compensation processes across a series of representative cases. Within these cases it can be discerned that Coalition forces’ record of engagement in civilian harm response and compensation has been largely ineffective in contributing to counterinsurgency and counterterrorism objectives over the past 20 years and captures significant breakdowns in the legitimacy of Western Coalition operations across multiple campaigns. Breakdowns in legitimacy are evident across all nine cases assessed in this study. However, in the five cases where Coalition engagement was perceived to be ineffective by communities, Coalition forces’ engagement was also considerably detrimental their legitimacy, at times adding insult to injury and compounding negative perceptions amongst the affected population. This often resulted in affected communities expressing strong anti-Western and anti-Coalition views and either tacitly 284 or explicitly shifting their support away from Coalition forces. In the three partially effective cases explored in this study we see mixed results. While Coalition forces often demonstrated some elements of good practice in line with civilian needs and expectations, this was often balanced out with inconsistent or negative practices and contributed to mixed perceptions of Coalition legitimacy. Where civilians in these cases had previously supported Coalition forces, they tended to report lower levels of support or neutral views of Coalition and insurgent forces. Where civilians were previously less supportive of Coalition forces, their views of Coalition legitimacy and support for Coalition forces tended to decline more significantly. Finally, in the one case viewed as effective in this study, Coalition forces were able to demonstrate their normative, procedural, and performance-based legitimacy through close, compassionate, and empathetic engagement in each stage of the response process. While this did not remove or fix the legitimacy lost as a result of the civilian harm incident, it did demonstrably assist in offsetting some of long-term strategic consequences as Coalition forces were able to stabilize relations with the family and community. These outcomes across cases align with the predictions of effectiveness established for each case at the outset of study and confirm the overarching theory of effectiveness for civilian harm response and compensation processes in the context of population-centric counterinsurgency campaigns established at the outset of this study. Further, the analysis of the three cases of civilian harm response and compensation during CJTF-OIR counterterrorism operations lend further confidence to the generalizability of the survivor-centric theory of effectiveness in contexts beyond population-centric counterinsurgency campaigns. While the outcomes of these nine cases cannot provide us with a comprehensive assessment of all Coalition engagement in response and compensation practices over the past twenty years, they do provide a useful indication of contemporary practice in this space. Based on this, these nine cases indicate a record of performance that is deeply concerning, particularly in its implications for current Coalition operations where population support is a factor in achieving mission success. Incidents of civilian harm are frequently the tipping point for affected communities to shift their support tacitly or explicitly to insurgents or terrorist organizations and thus can result in long-term strategic risks to Coalition forces and communities worldwide. So, 285 what can be done, if anything? How can some of the tensions (e.g., between timing and thoroughness, making apologies but avoiding legal culpability) be addressed? Should Coalition forces continue to engage in civilian harm response and compensation at all? Or is there a way forward that can meet the needs and expectations of affected communities and also supports Coalition objectives to obtain, retain, or regain legitimacy in the aftermath of civilian harm? The section below provides an overview of key factors identified throughout this study that influenced civilian perceptions of effectiveness and Coalition legitimacy across cases followed by recommendations to improve CHRC policy and practice moving forward. 6.3 Key Factors influencing Perceptions of Effectiveness across Cases In evaluating the effectiveness of civilian harm response and compensation in relation to legitimacy-centric counterinsurgency objectives, it is important to keep in mind that even the most perfect response and compensation process is not a ‘fix.’ The devastating impacts of civilian harm cannot be undone or ever fully repaired. The most that can be achieved in the aftermath of such severe harm is that by engaging meaningfully in the response and compensation process, Coalition forces will be able to demonstrate normative, procedural, and performance-based legitimacy by meeting the expectations survivors, families, and communities have of legitimate actor in alternate ways. By doing so, counterinsurgents may be able to offset some of the strategic consequences of the initial incident though their success in doing so is contingent on the perceptions of affected communities regarding their engagement in the response and compensation process. In light of this knowledge, across all cases assessed, several factors were identified as key determinants of effectiveness in offsetting some of the strategic consequences and stabilizing affected communities’ perceptions of COIN actors. These key determinants of effectiveness included: 1. Accessibility of the CHRC process; 2. Safeguarding and protection of survivors, witnesses, and reporters; 3. Timeliness of the CHRC process and its component stages; 4. Fairness and impartiality of CHRC process, and particularly the investigation and compensation stages; 5. Transparency of CHRC processes and communication with affected communities; and 286 6. Care, compassion, and empathy demonstrated by Coalition forces in the aftermath of the incident and throughout the CHRC process. Each of these factors is discussed in further depth below. 6.2.1 Accessibility Across all phases of the response and compensation process, affected communities identified accessibility assumptions and barriers as critical factors in their assessment of effectiveness during the process, indicating these barriers negatively influenced their perceptions of Coalition procedural and performance-based legitimacy. Participants across all cases noted that language barriers were prevalent and access to translation and interpretation services was rarely provided or substantially delayed. Interviewees noted that these language barriers particularly inhibited their access to a fair and impartial reporting process, as often they could not communicate their witness statements in a robust, accurate, or understandable way to English speaking personnel, often resorting to signing or gestures to communicate with Western forces in the absence of interpreters. Similar issues were flagged by participants during the investigation and compensation processes, with communication with Coalition forces often limited to occasions when interpreters were available to engage in the process. These language barriers were prevalent across most cases evaluated in this study, apart from the Abadi and Al-Haj families, both of whom had access to interpreters during the process. Further barriers were posed when Coalition forces were not physically present at the scene of the incident in the aftermath or in cases where the established process required families to travel to file evidence and claims forms. In many early cases in Iraq and Afghanistan, translated claims cards would be provided to communities affected by civilian harm incidents, providing a description of how to file a claim for civilian harm compensation. However, these claims cards had to be filed at Coalition forces bases, often requiring vulnerable families with heightened protection and safeguarding concerns to travel long distances through difficult terrain and hostile areas. These barriers were particularly prevalent in the Kashkari family case, where safeguarding concerns after being labelled Taliban supporters in the aftermath of the incident prevented them from traveling to the regional Provincial Reconstruction Team’s headquarters. 287 Yet a lack of boots on the ground in contemporary operations has significant implications for civilian harm response and compensation. As demonstrated by the cases in Chapter 5 and that explored at the start of this chapter, military presence in the area where harm occurs is often non-existent. As Western militaries increasingly rely on precision weapons and air campaigns, where civilian casualties do occur as a result of these remote operations this will come with increased trade-offs between the legitimacy of precision attacks and the inability (or lack of direct strategic impulse) to respond when mistakes are made. Today, on operations like CJTF-OIR most civilian harm reporting, initial assessment, and investigation procedures are facilitated through online communications. External reporting of civilian harm incidents is done by emailing the Coalition’s Public Affairs team and initial assessments of the credibility of civilian harm are completed by submitting records and information about the incident to this team by email. Updates on investigation progress are facilitated through these mechanisms as well. However, even accessing this process is difficult. Those seeking to engage in this process require reliable internet access, often a luxury in areas of Iraq and Syria at the best of times and even more difficult to access in the aftermath of airstrikes. In addition to this, the process for submitting cases is not publicly defined, nor is the information needed by the Coalition. When guidance is provided, it is legally complex, and thus difficult to interpret and complete without legal support from professionals in both the country where the harm occurred and the country responsible for the incident. Further, the evidence required to file for an investigation or compensation often includes documentation often destroyed by Coalition airstrikes, or death and medical records which are inaccessible or no longer accepted as legitimate documentation due to ISIS rule. However, an even more basic accessibility barrier exists in this process as the ability to read and write in English, or have access to translation and interpretation support, is an implied requirement for engaging in the process at all. As all communications, forms, and submissions require information to be provided in English, significant barriers to access exist for most survivors, families and communities affected by civilian harm incidents. Even in cases where these barriers have been smaller, such as the Razzo family, where Basim held significant 288 connections in the United States, had stable internet access, and can read, write, and speak in English, the accessibility hurdles he and his lawyers were required to navigate were extensive. This ultimately required Basim to seek further support from Iraqi, US and Dutch legal teams and additional translation services. For others with fewer resources and connections, these barriers are seemingly insurmountable. Access is often predicated on their financial ability to engage these services, which is often well out of reach for affected families. 6.2.2 Safeguarding and Protection Another key insight from this study not previously identified at the framing stage pertains to the civilians needs and expectations regarding safeguarding and protection in the aftermath of civilian harm incidents. While safeguarding considerations were including in the initial framing of measures of effectiveness, the focus pertained solely to considerations of safeguarding civilian harm reporters (both internal and external) from backlash resulting from engagement in the response and compensation process. However, during conversations with affected communities they noted that their predominant safeguarding concerns pertained to potential risks to their security from within their own communities, as Coalition actions against families were largely viewed as confirmation that family members were members or supporters of insurgent groups like the Taliban or ISIS. Thus, in the aftermath of civilian harm incidents families often expressed dual objectives for engaging in the process—pursuing justice for their lost loved ones as well as clearing their own names. This represented a key reason why affected communities expressed a particular desire for investigations to take place. While all spoke about wanting to understand why their loved ones had been harmed, they also held hopes that investigation findings could help clear their names and reduce the risks to their families. Thus, this motivated increased concern amongst affected survivors, families, and communities over the impartiality of investigations and the transparency of their findings. In several cases, including the Sharabuddin, Kashkaki, and Razzo families, survivors sought statements and documentation from Coalition forces verifying their innocence in order to reduce the risks they were facing. This was provided in the Sharabuddin and Razzo cases, but the Kashkari family continued to face substantial risks to their safety due to being labelled Taliban supporters in the aftermath of the incident. 289 However, in none of the cases evaluated here was any physical protection or safeguarding support provided to survivors, families, or affected communities facing these risks prior to, during, or after investigations were completed. This lack of safeguarding provision in the aftermath of civilian harm incidents worsened civilians’ perceptions of the Coalition’s ability and willingness to provide protection and security to civilians, despite their stated mission objectives. Thus, this issue was particularly consequential in civilians’ perceptions of Coalition normative and performance-based legitimacy. It demonstrated significant misalignment between the stated strategic objectives of the Coalition and their performance, undermining civilian perceptions of the Coalition’s ability to effectively and properly use their power, while also demonstrating significant misalignment between the Coalition’s commitment to establishing and respecting shared norms and values with the civilian population. 6.2.3 Timeliness Additionally, across all cases the timeliness of response and compensation was a significant factor in their relative effectiveness. The longer the period between the incident and key stages of the response and compensation process, including reporting, investigation, and compensation, the less effective the response process tended to be in meeting civilian needs and expectations. This was particularly true if the length of time between the incident and compensation was delayed by a requirement for investigations to be completed leading to long delays without engagement in consequence management. However, timeliness factors often need to be balanced against civilian desires for justice and accountability, particularly where investigations were concerned. In several cases, while affected communities identified the (lack of) timely response as a key factor in their determination of effectiveness, this was moderated by perceptions of the quality of investigations and the time that it takes to conduct a thorough review of case facts. In cases where investigation time frames were quite short (for example, the case of the Reuters journalists Waleed Khaled and Haider Kadhem), the perceptions of affected communities focused on the lack of thorough review and biased results, discounting the positive influence timeliness has in other stages of the process. Yet this balance between thorough and impartial investigatory practices and the timeliness expected in reporting, assessment and compensation practices poses sequencing issues for 290 Coalition forces. At present, generally investigations must be completed prior to consideration as to whether compensation and amends may be appropriate. However, this sequencing negates the intended purpose of condolence, solatia, and ex gratia payments. Originally intended only to express condolences and sympathy, there is no procedural or legal requirement for a completed investigation for these payments to be disbursed. In fact, the use of these compensation payments for consequence management seems to be most effective if disbursed in a timely manner, often before the completion of a formal investigation as in the Abadi case. Thus, these payments be able to occur without legal implications for Coalition forces as they do not require a finding of negligence, wrongdoing, or any form of legal liability. This approach seems to be particularly useful in cases where more formal compensation options which rely on findings of wrongdoing or negligence, like those available through the US’ Foreign Claims Act or the UK’s Human Rights Act, may not be accessible or appropriate based on the facts of the case. However, acceptance of these payments should not necessarily preclude families from seeking further compensation through other mechanisms based on the findings of the investigation once completed if negligence or wrongdoing is found. When such payments have seemingly precluded families from seeking more formal compensation, such as in the al Qubaisi case, this has had a substantial negative impact on the perception of Coalition normative and procedural legitimacy. 6.2.4 Fairness and Impartiality For survivors and their families, the perception of fairness and impartiality (or lack thereof) within the processing of their case and in relation to other cases of civilian harm incidents was a key factor in their assessments of all three types of Coalition legitimacy. This consideration of fairness and impartiality was particularly prevalent in civilians’ assessments of the investigation and compensation stages. For example, in the investigation processes associated with the Khaled and Kadhem case, perceptions of investigatory bias and a lack of thorough analysis were rife, creating further discontent. Beyond investigations, in cases where compensation was provided, the fairness of the payment and associated process were also particularly consequential. Survivors and their families assessed 291 the fairness of the level of payment and associated process based on the comprehensiveness of the approach and the view of loss taken by Coalition forces. In cases where the level of payment or approach to compensation was perceived to be out of line with the harm caused, affected communities assessed the compensation process as unfair in comparison to the circumstances of the case and the level of harm cased. However, they also assessed the fairness of compensation in relation to the experiences of other incidents of civilian harm compensation with which they were familiar. As communities often experienced several incidents of civilian harm over the course of the wars in Afghanistan and Iraq, people were constantly sharing information about levels of compensation within and across communities. Thus, the fairness of compensation was often assessed in comparative perspective, as affected communities became aware of the level and type of compensation being offered to them and compared it to other known incidents. Given the wide variation in payment levels in Iraq and Afghanistan, with the lowest for a death being approximately $120 and the average being between $2,000 to $2,500, civilians often based their perceptions of compensation fairness, and thus their assessment of the Coalition’s commitment to shared norms and values, through this lens. 6.2.5 Transparency and Communication In addition to the factors discussed above, several key factors that influenced civilian perceptions of effectiveness were more diffuse in their impact, such as the level of transparency and the quality of Coalition communication approaches. For cases deemed partially effective, assessments of Coalition performance were often influenced either positively or negatively by the level of effort Coalition forces put into the response and compensation process beyond the basic requirements. In such cases, the presence (or absence) of transparent processes and clear and consistent communication between affected communities and the Coalition had a compounding influence on perceptions of both positive and negative practice during the process. The positive influence of transparency and clear, consistent communication and engagement can be seen in the Sharabuddin case, with initial perceptions of Coalition legitimacy considered low during the reporting and initial assessment process but improving as engagement and communication improved during the investigation and compensation process. The positive impact of open and honest communication, clear explanation of processes, and establishment of 292 clear timelines and standards affected communities can expect from Coalition forces are also demonstrated in the Abadi family case. However, in contrast, in cases where there was little transparency and poor communication between Coalition forces and affected communities, such as the cases of the Kashkari family, the al Qubaisi family and the Hawija airstrike, the lack of strong communication practices compounded already negative perceptions of Coalition legitimacy. 6.2.6 Care, Compassion and Empathy Finally, across all cases one factor stood out as the most influential on perceptions of Coalition legitimacy. According to survivors, their families, and affected communities, the level of care, compassion, and empathy demonstrated by Coalition forces in the aftermath of civilian harm incidents was the central determinant of their perceptions. For all interviewees, the Coalition’s ability to meet their needs and expectations in the aftermath of these incidents was deeply wrapped up in the Coalition’s ability to demonstrate the basic qualities of human concern, empathy, and care in the aftermath of harm. In short, they wanted their pain to be recognized, for personnel involved in the response process to demonstrate compassion and concern, and to express remorse for what had happened to them. Multiple survivors and family members across cases expressed a willingness to recognize that mistakes happen but were disappointed and angered by the lack of care and compassion shown by Coalition personnel during the process, often describing their interactions as cold and bureaucratic. This was particularly evident in the Noorlam Sahib Valley case, the al-Qubaisi family case, and the Razzo family case. While positive impacts of expressions of care, compassion and empathy are evident in the Sharabuddin and Abadi cases. Affected communities noted several important elements that factored into their perceptions of the Coalition’s care, compassion, and empathy. First, in ground operations, they noted the initial reactions of Coalition personnel involved in the incident to the harm caused. In cases where the units involved expressed their own sadness and concern, attempted to render medical aid, and appeared contrite or apologetic, civilians were more likely to perceive that Coalition personnel cared about the impact they had had, their lost loved ones, and their family and community grief. Further, civilians then noted that consistent communication between a permanent and responsive 293 Coalition point of contact and the family as subsequent stages of the process were undertaken was important to these perceptions as well. Regular updates from key personnel ensured affected communities felt their case was being taken seriously by Coalition forces. Finally, the compensation and amends process was particularly influential in civilians’ perceptions of the Coalition’s level of care. They noted that the level of payment and way in which it was offered were often indicative of the level of alignment between Coalition values and their own (normative legitimacy). Where levels of payment were aligned with their view of loss and the needs of the family, civilians perceived shared norms and values. Where payments were low, further anger and resentment festered. Additionally, the ways in which compensation payments were offered was also a key factor (process legitimacy). In cases where compensation processes accompanied by apologies, expressions of regret, or contrition, affected communities also perceived normative alignment with Coalition forces. However, where these were absent, affected communities often pointed to the lack of ‘humanness’ in the process. Finally, where compensation and amends were carried out in line with the cultural customs of the community and included high-ranking members of Coalition force leadership, Coalition forces were able to demonstrate further commitment to expressing contrition. This approach offered an opportunity for survivors, family, and community members to express their grief and grievances and feel heard, while also, in many cases, providing an opportunity for healing broken trust and stabilizing perceptions of the Coalition’s normative legitimacy. 6.4 Recommendations While many of the cases evaluated in this study may leave the impression that the issues within the response and compensation process are too complex and insurmountable to be addressed meaningfully, it is worth noting that most of the cases evaluated (with the exception of the Kashkaki family’s case) contain clear elements of good practice in line with the key factors outlined above. Further, recent commitments by the US Department of Defense to reform their approach to civilian harm mitigation and response in their operations provide a positive indication that military forces are beginning to understand the strategic importance of these processes. Thus, based on the cases analyzed in this study this section seeks to provide several 294 practical and actionable recommendations to improve civilian harm response and compensation processes. Contemporary remote operations must make meaningfully changes to their approach civilian harm response and compensation in their operations immediately. While CJTF-OIR civilian harm mitigation processes have been prioritized for review, little has been done to modernize the approach to response, compensation, and amends. Coalition forces must imminently address the shortfalls in the response and compensation process caused by the remote nature of contemporary operations including by: • Civilian Casualty Tracking Teams (CCTT) should be utilized and well-supported within Coalition forces. Members of these teams should be trained in geospatial analysis, social media analysis, and well connected with on-the-ground authorities and community resources. They should be easily identifiable and reachable by communities, and their contact information clearly displayed by the Coalition. They should be provided ground access by the Coalition where the security situation permits to the sites of civilian harm incidents and affected communities to conduct verification and evidence collection activities. • Beyond CCTTs, accessible reporting processes for affected communities and external reporters must be established. These must include identifiable online mechanisms with clear instructions in appropriate languages. • Additionally, clearly communicated processes for reporting incidents through ground-based mechanisms must be established. Institutional points of contact with local and national authorities should be established and mechanisms put in place for early warning regarding incidents where appropriate and reporting of critical incidents to Coalition forces. • Internal reporting structures should be reinforced. Levels of tolerance regarding likelihood of civilian harm post-strike and determinants of ‘credibility’ of reports should be reviewed in accordance with availability of open-source intelligence and reporting post-incident. 295 • Verification of civilian harm incidents should be undertaken by CCTTs or by neutral third parties on the ground where the security situation allows. Such arrangements can be made through long-term civil-military partnerships through the Coalition’s J9 (CIMIC) functions. Doing so will ensure appropriate evidence collection practices are observed, chain of custody requirements are adhered to, and neutral and impartial reporting of case facts is completed. All evidence collection should include testimony from both military personnel and affected communities. • Where cases require a formal investigation, these should be conducted by both a military Investigating Officer and a neutral authority simultaneously to mitigate the risk of bias in investigatory practices. Neutral third parties may include oversight authorities, such as the US’ Special Investigator offices, or can be established through long-term CIMIC relationships or consultancy agreements with qualified individuals or organizations. • Where compensation is determined to be appropriate, determinations regarding the appropriateness of ex-gratia payments should be made at the initial assessment phase, not following the investigation. Should ex-gratia payments be appropriate to express condolences, their disbursement should not preclude affected civilians’ from pursuing legal and monetary claims following findings of negligence, misconduct, or illegal activity during an investigation. • Where ex gratia payments are deemed to be appropriate, these payments should be disbursed alongside expressions of contrition and condolence. In such circumstances, it can be made clear that these are moral expressions of condolence, which are not construed as a legal apology or admission of guilt. To the extent possible, such payments should be disbursed by military personnel involved in the incident, rather than legal personnel. Beyond these immediate-term recommendations, additional recommendations for the review of civilian harm response and compensation practices in the medium- and long-term are outlined below. These recommendations are as follows: 296 • Processes for civilian harm compensation should be reviewed and updated imminently. The initial review of response and compensation practices should be comprehensive, covering all stages of the process. This process should be as inclusive as possible and make efforts to include survivors and family members impacted by civilian harm incidents, as well as independent experts from academia and NGOs in the review process. During this process, particular attention should be paid to urgently needed updates, including: o Accessibility issues, particularly language, geographical, and legal barriers to engagement in the reporting process, investigation, and compensation process; o Cross-governmental capabilities to receive reports and share information seamlessly between departments and agencies (for example, USAID DART teams and DoD); o Safeguarding approaches for survivors and family members affected by civilian harm incidents caused by Coalition forces, including risk mitigation and protection strategies; o Factors that influence the timeliness of assessment, investigation and compensation, and the current contingency of compensation on investigation outcomes; o Payment consistency and confidentiality, including appropriate ‘minimum’ levels of compensation, further analysis of the appropriateness of compensation ‘caps’ on ex gratia payments, and consideration of the appropriateness of confidentiality of payment levels across cases; o Opportunities and strategies to demonstrate care and compassion throughout the response and compensation process; o Opportunities to streamline and further align disparate approaches to investigation and compensation across Coalition partners. • Civilian harm response and compensation approaches developed out of this review process should take a ‘framework approach.’ A framework approach will provide operators engaged in response and compensation processes on behalf of the Coalition with clear guidance, standards, and options for operators to engage with at each stage in line with Coalition rules and expectations. However, it will also leave enough 297 flexibility for operators to assess civilian needs and expectations in the process and make informed decisions as to what options available to them might best meet these requirements. • Robust monitoring, evaluation, and learning (MEL) processes should be set up and implemented by Coalition forces. Appropriate researchers and analysts should be employed or trained to support these efforts. MEL analysts (both internal and external to Western Defence departments) should be provided access to comprehensive civilian harm response and compensation data to enable cross-cutting large-n quantitative studies to be undertaken alongside detailed qualitative studies of representative cases (like the approach taken in this work). Evaluations should be carried out continuously or at regular intervals to assess the effectiveness of civilian harm response and compensation at the programmatic and case level across all areas of Coalition operations. Although it is not expected that every case can be evaluated, representative sampling methods would be appropriate. • MEL findings should be independently verified and validated by experts not associated with any government departments or agencies. As demonstrated in this study, internal assessments, investigations, and evaluations of sensitive issues like civilian harm compensation can often result in biased findings. Civilian harm response and compensation MEL findings should therefore be verified and validated by an independent research and analysis organizations at regular intervals to ensure the thoroughness, impartiality, and veracity of findings. • Regular reviews of established practice scheduled at consistent intervals based on the findings of the MEL studies and independent reports. Based on MEL findings, established response and compensation practices should be reviewed on an ongoing basis at regular intervals and adjustments made to processes, procedures, and operational guidance based on available evidence. More than anything else, when considering how to improve civilian harm response and compensation practices, decision makers should take a survivor-centric approach to updating current policy. Without this, as this study has shown, future approaches to civilian harm response and compensation are unlikely to meaningfully contribute to their strategic objectives. In many 298 cases, if the needs of survivors, families, and communities are not centred, civilian harm response and compensation could cause further negative impacts for Coalition objectives. Thus, to the extent possible, affected communities should be meaningfully involved in the design of new processes and all stages of the monitoring and review process. This will ensure the needs and expectations of communities are reflected in current policy and that affected communities are meaningfully integrated into efforts to improve future practice. 6.5 Research Contributions and Future Avenues of Inquiry This study provides an in-depth analysis of the effectiveness of civilian harm response and compensation in contributing to the legitimacy-centric strategic objectives of population-centric counterinsurgency and counter-terrorism campaigns. Analyzing nine cases of civilian harm across three Western coalition operations in three countries, it provides an in-depth consideration of the intersection of ethical and strategic considerations in contemporary conflict. Moving beyond existing literature on the normative and legal arguments armed forces should engage in civilian harm compensation, this study considers why military forces might engage in civilian harm response and compensation—namely that doing so provides them strategic benefits in the aftermath of civilian harm incidents. This section seeks to elucidate the contributions of this study to existing literature, policy, and practice and identify future avenues of inquiry building on the findings of this study. 6.5.1 Contributions of the Research Building on the work of Thomas Gregory, I demonstrate that civilian harm response and compensation represents a key strategic determinant of operational effectiveness and strategic success in counterinsurgency operations in the aftermath of civilian harm incidents by providing opportunities for Coalition forces to offset the negative effects of a civilian harm incident by demonstrating their normative, procedural, and performance-based legitimacy through other approaches. However, this study seeks to move beyond a measure of effectiveness solely based on levels of post-harm violence and Coalition force protection. While Daniel Silverman’s work demonstrates the positive impact civilian harm compensation can have on these strategic considerations, this study shows that the effectiveness of civilian harm compensation in 299 population-centric counterinsurgency operations is predicated on the extent to which Coalition forces can obtain, retain, or regain legitimacy in the eyes of the population by meeting the needs and expectations of survivors, their families, and communities. This survivor-centric theory of effectiveness is a new contribution to the literature on civilian harm response and compensation that seeks to acknowledge the dual ethical and strategic purposes of civilian harm response and compensation processes. Its findings provide useful evidence to support the work of academics interested in the ethical and legal dimensions of civilian harm and protection in contemporary conflict and students and strategists of counterinsurgency and counterterrorism. Further, and perhaps most importantly, it provides useful and useable insight into a complex ethico-strategic dilemma with which many NGOs, policymakers, and practitioners are currently seeking to improve. This study has demonstrated in population-centric counterinsurgency and counterterrorism campaigns, Coalition forces’ ability to achieve their legitimacy-seeking strategy aims is predicated on their ability to meet the protection and security related needs and expectations of the population. Even more specifically, in situations where population perceptions of Coalition forces’ legitimacy are broken, such as civilian harm incidents, legitimacy can be demonstrated in alternate ways in order to ‘offset’ some of the consequences of lost trust. While this study has focused on the issue of civilian harm compensation it also speaks to wider trends in the study of conflict regarding legitimacy-seeking behaviour, the politics of empathy, and the tension between the ethical and strategic in contemporary armed conflict. 6.5.2 Future Avenues of Inquiry Many of the issues explored in this study can also be utilized to consider other ethico-strategic issues in armed conflict and beyond, including conflict-related sexual violence, the prioritized protection of particular groups in conflict, unconscious bias in the targeting of civilians, and the increased ‘remoting’ of warfare. Some of these issue areas are expanded on as future avenues of research in the sections below. Expanding research on civilian harm response and compensation 300 Existing academic literature on the topic of civilian harm compensation has largely focused on the moral and ethical arguments for why militaries should engage in these processes. However, academics and practitioners, this author included, have noted that these narratives are rarely compelling approaches for fuelling behaviour-change within military environments. Thus, impact-driven research is required that seeks to better understand the strategic implications civilian harm mitigation and response have within complex security environments. These insights provide further evidence on the relevance of empirical research on ethics to inform ethical theory as a practical check of relevance.918 As this study has demonstrated, robust civilian harm response and compensation approaches are not a luxury, but a key necessity in ending the cycle of violence and grievances in the aftermath of civilian harm incidents and securing the legitimacy and security Coalition Forces seek. They are not being undertaken because of ethical or legal requirements or a unique sense of moral responsibility nor do we see military conduct moving in that direction of thought. They are being used to manage consequences and given the considerable budgets contemporary counterinsurgency and counter-terrorism operations receive a major recalibration in their approach to response, compensation, and amends is needed and more targeted work on the strategic relevance of ethics must be a part of the package. If militaries’ engagement with the ethical dimension of civilian harm response and compensation is going to increase it must be made clearer how the moral and ethical are strategic, and actionable recommendations must be made to improve existing approaches. If future impact-driven academic research in this area is going to be pursued, researchers first must set the groundwork. At present, robust data sources on civilian harm response and compensation do not exist. Collating existing data, establishing robust data collection and capture methods, developing publicly accessible databases, and better understanding the factors that influence civilian harm compensation effectiveness through long-term stakeholder engagement should be a priority. Despite the rich data utilized in this study, there is limited information and analysis available concerning civilian harm response and compensation in the existing literature. Further, while 918 Richard Price, Moral Limit and Possibility in World Politics (Cambridge, Cambridge University Press, 2008); Richard Price, Jack Snyder, Leslie Vinjamuri, Toni Erskine, and Nicholas Rengger. “Special Forum on Moral Limit and Possibility in World Politics.” International Theory 4(3), 430-434. 301 some NGOs are increasingly engaging in this issue, the focus of their work tends to focus on harm mitigation rather than response. Yet this means that opportunities are ripe to establish a robust field of research and practice in this space through additional impact-driven research and by building and cultivating networks of affected civilians, military personnel, academics, and NGO experts. A first avenue for future research in this space focuses on consolidating and collating existing data on civilian harm response and compensation. While some datasets do exist for civilian harm tracking, including Airwars and the Iraq Body Count which document individual civilian harm incidents with a high degree of granularity, similar resources do not exist for response and compensation data associated with these incidents. This is not to say raw data does not exist. While much remains classified by Coalition forces, treasure troves of primary source data regarding response and compensation (including that used in this study) have been released through Wikileaks as well as FOIA requests filed by The New York Times, The Intercept, The Nation, and others. Further, several NGOs, including the legal aid teams at the Zomia Centre for Reparations, Reprieve, and Ceasefire, amongst others, are now working directly with families affected by civilian harm incidents to file compensation claims on their behalf, generating real time data on compensation and amends processes. What is missing at this stage is a comprehensive data set to capture information about past and current response and compensation processes. To ameliorate this gap, I am currently pursuing funding from the UK government alongside the above noted NGO stakeholders to build a new dataset for past cases of civilian harm response and compensation, as well as formalize data collection frameworks for response and compensation processes in current and future cases of civilian harm. A second avenue for future research in this space would be delving further into applied research concerning the effectiveness of civilian harm response and compensation. As this study has demonstrated, at present response and compensation processes are largely ineffective in achieving their intended aims. However, some cases have demonstrated that response and compensation can be effective when civilians’ needs, and expectations are centred throughout the process. While this study has made significant strides in identifying what these needs and expectations may be, further research is needed in order to provide useful recommendations to 302 military actors on how to improve their approaches. As the US Department of Defense released its Civilian Harm Mitigation and Response Action Plan in 2022, there is a brief window available for directly influencing the ways in which their policies, processes and procedures are reviewed and improved. As new US policy has considerable reach—often influencing the policies and practices of Coalition and NATO partners—the opportunity to influence emerging response and compensation approaches is significant, but fleeting. To this end, the author is currently initiating a new project, applying human-centric design principles to the civilian harm response and compensation process. Third, an interesting issue identified during this study has been the variation of compensation approaches utilized by Western coalition partners. In the Hawija and Razzo family cases, we can see direct comparisons between the approaches of the US and the Dutch government. In the Razzo case, we can also see the differing implications on civilian perceptions in terms of the level of payment, process, and care involved in the process. When it comes to contemporary civilian harm investigation and compensation processes, each partner nation in the CJTF-OIR Coalition has the right to undertake these processes through their own national systems. Yet the variation is quite significant. While some countries have provisions within their national legal systems for compensation in cases of human rights violations, others may not, or place restrictions on accessing these options. In the US, the Foreign Claims Act includes the ‘combat exception’ removing the ability to pursue claims against the US government for civilian harm or property damage that occurred as a result of active combat. In the UK, most legal action and reparations for civilian harm are undertaken under the provisions of the Human Rights Act, however these provisions include a five-year limit from the time of the incident. This, combined with considerably less transparency regarding UK military operations in comparison to Coalition partners, means civilians seeking compensation often struggle to find out whether the UK was involved, and often miss this five-year deadline. For example, the Battles of Raqqa and Mosul were some of the UK’s largest operations in the past decade and resulted in widespread civilian harm, however the five-year limit has passed in 2022, leaving many families who may have experienced harm at the hands of UK forces unable to submit compensation claims. On the surface, it seems that some countries involved in Western coalitions have legal frameworks that are more accessible than others. Future research could address whether these differing 303 approaches and levels of transparency cause issues of incongruence within Coalition practice, and whether this may impact civilians’ perceptions of legitimacy. Further, given recent developments regarding the US’ CHMRAP, are there opportunities for civilian harm response and compensation coalescence and interoperability? Given that the negative consequences of operations gone awry by one partner in Coalition operations may rebound upon the others, the time is ripe for convergence to be on military’s agendas. Finally, a key issue identified during this research which was beyond the scope of this study to explore is the gendered dimensions of contemporary approaches to civilian harm compensation. Cursory analysis of compensation data across accessible cases with primary documentation shows that levels of payment vary significantly across the gender of the deceased and the individual(s) receiving the payment. It would appear that in cases where women or girls have been harmed payments are considerably lower, whereas in cases where men or boys are harmed payments tend to be higher. While some of this variation may be due to cultural norms regarding gendered status within households, breadwinner status, and the long-term implications of lost income, it merits further exploration, including in how cultural appropriateness may factor into determinations regarding compensation and amends approaches across different contexts. Additionally, current data and analysis does not capture harm short of death particularly well. While some compensation data regarding physical injury is available, little is known about how or if compensation approaches are used to address harm caused by sexual and gender-based violence. While detailed guidance has been issued internationally regarding the legal requirement for reparations for sexual violence in conflict, it appears this has rarely been implemented in practice and merits further exploration. Exploring the military-strategic relevance of a politics of empathy in contemporary warfare Beyond the issue of civilian harm compensation, a key finding of this study was the strategic importance of demonstrating care, compassion, and empathy during civilian harm response and compensation processes. Yet these narratives and approaches are rarely considered in the strategic and operational planning of contemporary conflict. Where they are, they are often relegated to the strategic communications team, rather than considered as a central consideration 304 for military strategy. Considering the focus of this study, further explorations of whether the theory of effectiveness identified here has applications beyond population-centric operations would be a fruitful avenue of study. For example, understanding the degree to which a politics of empathy influences military strategic success in contemporary conventional conflicts such as the War in Ukraine would be a useful and timely study given the significant role civilian harm and protection of civilians narratives have played in that context. Similarly, better understanding the degree to which the increasing ‘remoting’ of contemporary warfare influences the perceived importance of care, compassion, and empathy in the conduct of contemporary military operations would be a further useful avenue of research. Precision-targeting such as with drones and guided munitions has often been touted as a moral improvement in warfare, but an unintended consequence is that when civilian harm results, there is likely to be little if any capacity on the ground to conduct the phases of harm response this study establishes as needed. These trade-offs must be mitigated if the gains of such operations are not to be offset by their ethical shortfalls. Opportunities to compare the ways in which language and narratives regarding civilian harm differ amongst military personnel in ‘boots on the ground’ operations versus remote warfare operations are possible, particularly with recent FOIA releases of detailed documentation of military Internet Relay Chats (mIRC) commonly used during targeting operations to communicate between operators and decisionmakers. Evaluating the Quality of Ethico-Strategic Decision-making under Arduous Stress Another future avenue of research raised by this study concerns the quality of ethico-strategic decision making under arduous stress during operations that may result in civilian harm. Whether this stress be emotional, physical, or psychological, it appears that in situations of ‘dynamic’ operations the risk for civilian casualties escalates as opportunities for misattribution, misidentification, or not noticing civilians in the area are increased due to reduced analysis, rapid decision making, and confirmation bias. Better understanding how military forces perform with regards to ethico-strategic decision making under arduous stress could assist in better designing decision making and targeting processes in these circumstances, yet current military training does not test or capture data regarding troop performance in this regard. Following the completion of this study, the author will be proposing an interdisciplinary study to the UK 305 Ministry of Defence evaluating the quality of ethico-strategic decision making of British Army personnel under conditions of arduous physical stress alongside a colleague from the University of Chichester’s Occupational Performance Research Group. 6.6 Final Reflections Despite high levels of civilian harm incidents in contemporary warfare, the use of civilian harm response and compensation processes has declined substantially in recent years. Evidence from Afghanistan and the Iraq War documents thousands of compensation payments and hundreds of millions of dollars disbursed. In comparison, in fiscal year 2019 US forces offered just 71 condolence payments for deaths caused by the American military in Iraq and Afghanistan, with these payments ranging from $171 to $35,000. In 2020, no such compensation payments were documented. In CJTF-OIR operations, compensation is increasingly rare, with Basim Razzo’s case representing one of only a handful of compensation payments which have been disbursed by Coalition forces. Even less common are cases in which Coalition forces hold their personnel accountable for these incidents leaving few opportunities for affected civilians to pursue justice in this regard. Despite this, there appears to be unprecedented appetite from Coalition forces to change their ways. In the immediate aftermath of the 29 August 2021 drone strike on the Ahmadi family compound in Kabul, US Defense Secretary Lloyd J. Austin III ordered a comprehensive review of the US military’s civilian harm mitigation and response authorities, processes, and procedures to understand what needs to be altered in the future. Out of this review has emerged the US’ new Civilian Harm Mitigation and Response Action Plan, resulting in, amongst other things, commitments to • Establish a civilian protection center of excellence to serve as the hub and facilitator for DoD-wide analysis, learning, and training related to civilian harm mitigation and response (CHMR); • Provide commanders and operators with more information to better understand the civilian environment; Incorporate guidance for addressing civilian harm across the full 306 spectrum of armed conflict into doctrine and operation plans so that we are prepared to mitigate and respond to civilian harm in any future fight; • Develop standardized civilian harm operational reporting and data management processes, including the development of a centralized, enterprise-wide data management platform, which will improve how DoD collects, shares, and learns from data related to civilian harm; • Improve our ability to assess and respond to civilian harm resulting from our operations; • Incorporate CHMR into exercises, training, and professional military education across the Joint force; • Incorporate CHMR into security cooperation and operations with allies and partners; • Establish a CHMR Steering Committee, which will be co-chaired by senior DoD leadership and which will convene regularly to provide executive leadership, oversight, and guidance during all phases of the action plan to facilitate its timely and effective implementation; and • Designate the Secretary of the Army as DoD’s joint proponent for CHMR.919 This action plan is an unprecedented formalization of US’ commitments to improve civilian harm mitigation and response approaches and is likely to have cascading effects for Coalition operations as partner nations may seek further interoperability and consistency in their processes and operational approaches. Further, it provides an important opportunity to influence ethico-strategic thinking and conduct within the US military and amongst its partner nations in future operations, making this study and its findings particularly timely for potential policy impact. As David Livingstone Smith once said, “War is mangled bodies and shattered minds…It is terrible beyond comprehension.”920 Over the course of this study, Livingstone Smith’s account of the devastation of war was on full display. Conducting research amid such extreme suffering is draining. At times, the pain and grief expressed by families and witnesses in interviews has seemed insurmountable. This study has sought to centre their voices and perspectives, demonstrating that in the aftermath of civilian harm incidents the people who wield the most strategic power are those defending and advocating for their lost loved ones. Thus, their needs 919 US Department of Defense, “Civilian Harm Mitigation and Response Action Plan Fact Sheet.” August 25, 2022, https://www.defense.gov/News/Releases/Release/Article/3140007/civilian-harm-mitigation-and-response-action-plan-fact-sheet/. 920 David Livingstone Smith, The Most Dangerous Animal: Human Nature and the Origins of War. (New York, St. Martin’s Press, 2007), 7. 307 and expectations in the aftermath of civilian harm incidents must be centred in Coalition forces’ approaches to consequence management in order to be effective. This study took me around the world to places I never would have anticipated and provided me opportunities to engage with people, communities, and cultures I could have only dreamed of before. It has opened my eyes to the extreme suffering that armed conflict can cause and the depths of hope it takes to endure such hardships. However, of all the insights I have gained as a result of this study two stand out the most. First, that those complicit in civilian harm incidents rarely, if ever, intentionally cause harm. The vast majority are engaged in their roles through a deep belief they are doing the right thing including that their actions will protect civilians from harm. When they are involved in civilian harm incidents, the personal costs are often severe—almost all military personnel interviewed as part of this study suffer from post-traumatic stress disorder as a result. Secondly, the most remarkable insight I have discerned during this study is the immense power of empathy in strategy. When civilian harm incidents occur, affected communities expect to be met compassion and care, not bureaucracy and barriers. They expect a system that placed their needs at the centre after harm has been done to them however, recount repeated stories of processes and procedures that did not meet their needs and exacerbated the impact of the initial harm. 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Thesis/Dissertation
eng
Political Science
Vancouver : University of British Columbia Library
Attribution-NonCommercial-NoDerivatives 4.0 International
Graduate
Price, Richard M. (Richard MacKay), 1964-
The price of a life: the confluence of strategy and legitimacy in civilian harm compensation
Text