February 29, 2008.
The issue of civilian casualties in Afghanistan is a highly contentious issue, and for good reason. In an opinion poll commissioned by the BBC, 29% of Afghans said the international troops were doing a bad job. The number one reason given (at 39%) was civilian casualties. The issue of bad intelligence has been discussed here, while the over-reliance on air power is frequently mentioned at Registan and Abu Muqawama. But that’s not what I’ll be discussing today.
What I’ll analyze today is the issue of compensation. But first some quantitative analysis: According to Human Rights Watch, in 2006 there were approximately 1200 civilian casualties in Afghanistan, of which as many as 300 could be blamed on international forces (and if the increased coverage of civilian casualties in the press accurately reflects what’s happening on the ground, I’m assuming 2007 will prove to be significantly higher).
Pic: Anger over the killing of Afghan civilians in March 2007.
The paper trail on US compensation for civilian casualties in Afghanistan is a little slim, amounting to only 17 claims that the ACLU obtained through the Freedom of Information Act (now allegedly available in this user-unfriendly database). But other incidents of compensation have been discussed in the media, such as the compensation payed out after Marines killed uninvolved bystanders after a suicide bomber attack in Jalalabad. Various amounts have been discussed, and I’ve usually heard figures in the $2000 dollar range. The ACLU report noted that payments for a life lost is capped at $2500.
Other payments are made as well. For example, since 2005 the US government has paid out about $40 million for property damage, personal injury and loss of life in Iraq. However, I couldn’t find any total for what is being paid out in Afghanistan. So what I’ll focus on is the compensation for loss of life and that $2500 figure. I’m not going to go searching for quotes, but I recall terms used for this level of compensation such as “arbitrary,” “shameful,” and various words to indicate that the commentator sees this compensation as grossly insufficient.
Pic: Karzai has angrily complained of civilian casualties numerous times (in Dari and Pashto).
A $2500 payment for the loss of a human life is many things, but surprisingly it may not be completely arbitrary. I don’t know how the Pentagon came up with this figure. It may indeed be arbitrary, but it is (at worst) actually about half of what was determined to be the value of a human life in the traditional Pashtun version of civil court (using a rather confusing economic comparison). To support this point, I’ll refer to Alef Shah Zadran’s 1977 PhD dissertation Socio-economic and legal-political processes in a Pashtun village, southeastern Afghanistan.
And yes, I know the problems of trying to apply one case study for a village in Paktia to all Pashtun areas of Afghanistan. But there are strong similarities between the various rural Pashtun areas. And indeed, the Pashtun tsali (practise) set amounts for the value of damages to body and for loss of life. Zadran (page 264) showed these tsali figures:
Bodily Injury Compensation Schedule in Afghanis: body part injured level of compensation. 1970’s: 1$=50 afghani.
- Right eye 7,500 afs
- Left eye 7,500 afs
- Right ear 5,000 afs
- Left ear 5,000 afs
- Nose 30,000 afs
- Middle incisor 5,000 afs
- Side incisor 5,000 afs
- Canine 2,500 afs
- Premolar 2,000 afs
- Molar 1,000 afs
- Hands 15,000 afs
- Right hand 10,000 afs
- Left hand 5,000 afs
- thumb 3,750 afs
- index finger 2,500 afs
- middle finger 2,000 afs
- ring 1,500 afs
- pinky 1,000 afs
- Feet 15,000 afs
- Right foot 7,500 afs
- Left foot 7,500 afs
- Amputation of foot 30,000 afs
- Fingernails or toenails (visible) 150 afs
- Fingernails or toenails (not visible) 100 afs
In the case of murder, a maraka (sort of an ad hoc but formalized arbitration court that fits within the Pashtunwali “code”) will be convened. In mid-1970’s currency, the blood-price (nake or khun) was set at $1200 (60,000 Afghanis). I stuck this in an inflation converter and came up with a figure of about $5000. But that’s using an American scale. I honestly have no idea of what 60,000 Afghanis ($1200) in rural eastern Afghanistan would be equivalent to today. But Zadran makes the point that this figure was still the standard in the 1970s, despite the perception by some that it was too low.
Pic: Probably no compensation for this.
In the case of murder, it was also common for the arbitration to include an unmarried girl to be given to the victims family in order to tie the families together and prevent future fighting (Jenna Bush to wed in Paktia Province?). But using American legal terms, we’re not talking murder in the vast majority of civilian casualty cases, we’re dealing with manslaughter or negligent homicide. And we’re talking about this in the context of war. Indeed, NATO has no rules in Afghanistan about compensation for civilian casualties, letting individual countries, such as Denmark, set their own rules.
As for the US, did they actually inquire in Afghanistan as to what would be the traditional level of compensation for loss of life and take that $1200/60,000 Afghanis figure as an approximate guide? Again I don’t know. But the point is that by traditional Afghan standards, it is at worst only half of what the level of compensation ideally is in rural Afghanistan. [Again I offer the caveat that taking a figure from 1970s Afghanistan and coming up with an amount for 2008 is a job for some sort of economist detective, which I'm not].
Personally, I think that the Pentagon should play it safe and go double the rate of that I came up with using the US inflation rate and make the compensation $10,000 rather than capping it at $2500. And yes, they should come up with a system of standards to govern the process. I recall a TV (or newspaper) report from Iraq that featured some beleaguered American officer inundated with locals demanding compensation for their imaginary livestock that the Americans has viciously massacred the previous week. If someone starts handing out compensation payments without doing much investigating, he will soon have a very long line of people forming outside his tent. And that applies whether the tent is located in Kansas City or Spin Boldak.
But at the moment there is that $2500 cap and the lack of clear guidelines. Or as Zalmay Khalilzad said in a different manner, American officers on the ground have “flexibility” in regards to compensation payments. And importantly, it seems that many incidents have occurred without compensation being granted. It does not seem that the quick delivery of compensation in wake of the US Marines killings of civilians in Jalalabad is the model for other incidents where US forces killed innocent bystanders (is this the “flexibility” that Khalilzad is referring to?).
Pic: A civilian killed by US Marines in Jalalabad.
The other issue is that of going beyond compensatory damages. In an American civil court damages are awarded as compensatory and punitive. The punitive damages are meant to punish the negligent/guilty party. This is where you see damages against large corporations going into the 100s of millions. Personally, I don’t support punitive damages against governments for incidences that occur during war (but I’m fine with compensatory damages).
Of course, it is not the issue of compensation that is the real problem here, it is the issue of the casualties themselves. Barnett Rubin’s quote reflects my position on the issue:
“What really hurts is the civilian casualties, at least when there are civilian casualties, there should be a mechanism for redressing those grievances. The civilian casualties and the apparent impunity of coalition and NATO forces — and also I should add, of private security contractors — is a big issue in the minds of Afghans. So if [compensation] can help address that, then that would [help] to some extent. But of course, it would be more important to eliminate civilian casualties.”
Some final extra, additional caveats: this blog entry is more to get people to think about the issue of compensation. I’m not offering my musings as a strong suggestion for determining compensation rates. That job should be left to some independent lawyer economist type who’s on the ground. And yes, I realize I used a rural case study and then showed pictures of the city of Jalalabad, that’s all I could find in the way of imagery.