U.S. Addresses Iraqis’ Losses With Payments

BAQUBAH, Iraq —  Every other Wednesday and Thursday, a long line of the bereft and the aggrieved forms on the dusty roadway outside the fortified U.S. military compound here.

Iraqi men and women, and occasionally children, wait in blinding sunshine or dreary rainfall to present damage claims to the U.S. military. Their cases range from the tragic to the mundane:

A widow says her husband was killed during an American combat operation. A father reports his young son lost an arm in American gunfire. A farmer’s cows were killed, a house was damaged, a car was wrecked, windows were broken.

A determined complainant with enough perseverance might wait several hours to be searched and then escorted inside the barbed wire and blast walls to speak to a military legal officer. In more than half the cases nationwide, legal officers say, a cash payment is made -- up to $2,500 for a death, $1,500 for an injury and $500 for property damage.

Under the informal “condolence payments” program launched in mid-2003, the U.S. military does not claim to compensate Iraqis for their losses. It does not admit guilt or acknowledge liability or negligence. It is merely saying, in effect, “We sympathize with your loss,” as one judge advocate general officer put it.

Military legal officers say a condolence payment is a gesture that expresses sympathy in concrete terms.

“The program is designed not to make up for anything but to acknowledge that there has been a tragedy or some sort of damage,” said Capt. Emily Schiffer, chief of administrative law for the Army’s 1st Cavalry Division. “It’s an expression of sympathy and condolence to a family. Obviously, it’s the right thing to do to kind of bridge the gap between the two parties.”

By its very nature, the program is arbitrary and uneven. Many Iraqis are not aware of it, and not all have the means to reach a U.S. claims processing area or to gather the necessary evidence. The burden of proof is on Iraqis, the final decision is made by a U.S. commander, and there is no appeal.

Suffering by civilians has been a sensitive and volatile issue for the U.S. in its operations in Afghanistan and Iraq. The Pentagon has refused to collect data on civilian casualties, even as some human rights groups estimate the combined number of dead and injured in the two countries to be in the low tens of thousands.

Hundreds of Iraqi civilians have been killed or wounded at military checkpoints or while sharing the road with military convoys. Because of the frequent car bombings and roadside explosions, U.S. soldiers are wary of approaching vehicles. In many cases, civilians are shot after failing to heed shouts and warning shots required by military rules of engagement. In some cases, civilians panicked and sped up at the sound of the shots.

Anti-U.S. resentment runs high among many Iraqis, especially in Sunni Muslim areas. Hafiz Abdullah, 40, complained of “hysterical” American reaction to cars and pedestrians in Muqdadiya, an insurgent stronghold.

“Their treatment is very bad toward us, and it doesn’t seem like those soldiers are from a civilized country,” he said.

But Ibrahim Makoter, 43, who said his car flipped over and was badly damaged when it was hit by a U.S. armored vehicle in Baghdad in August, said he was gratified by the American response. He said a U.S. military policeman righted the car, apologized and told him where to file a claim. A month after filing, he was paid in cash.

“This is something we aren’t used to seeing,” Makoter said.

The condolence payments reach only a fraction of families who have suffered since the U.S. military invaded Iraq in March 2003. But for all its shortcomings, the program seems to pay tribute to the tribal tradition of “blood money” for loss of life or property.

“It’s intended as a public relations tool -- sort of a no-hard-feelings type of payment,” said Maj. John Moore, a U.S. Army legal officer in charge of processing claims at Forward Operating Base Warhorse outside Baqubah, about 30 miles north of Baghdad. “It’s not designed to make them whole again, only to alleviate their hardships.”

The program is so informal and decentralized that total payout figures are difficult to obtain. An Army spokesman said about $2.2 million was paid from mid-2003 to mid-2004, but he said he could not find current figures -- or the number of claims filed or approved. An officer with the Army comptroller’s office in Baghdad said about $450,000 had been paid in greater Baghdad since June.

The program was not initiated by the military, which is wary of setting any precedent that might be perceived as acknowledging responsibility for civilian deaths. The payments began as a response to legislation introduced in April 2003 by Sen. Patrick J. Leahy (D-Vt.) and passed as part of a $2.5-billion humanitarian aid package for Iraq.

The legislation specifies that the payments are neither compensation nor reparations.

Claims by foreign citizens against the U.S. military are normally processed under the Foreign Claims Act. But that law, which allows for payments in negligence cases, excludes any claim arising from combat.

The condolence payments offer a way around the law, said Capt. Darren Pohlmann, a contract law attorney with the 3rd Infantry Division.

“Liability or negligence does not come into play,” he said. “It’s a combat situation, there’s a war going on out there, and unfortunately sometimes people are caught in the crossfire.”

Not all disbursements are made for losses arising from U.S. actions. Schiffer said a payment was made to the widow of an Iraqi worker at a U.S. base who was killed by insurgents. And in Muqdadiya in north-central Iraq, Lt. Col. Roger Cloutier said he intended to pay the widow of an assassinated Iraqi army sergeant major.

The payments are approved by local commanders after review by legal officers. The money comes from the Commanders’ Emergency Response Program, which officials use to pay for local projects.

Dhia Mohammed, a 24-year-old college student, arrived at Camp Warhorse on Feb. 16 to complain that his 1993 Hyundai sedan had been damaged by a U.S. Humvee on Christmas Day. Mohammed provided an impressive level of detailed evidence -- more than most claimants, Moore said, and more than in even some death claims.

Mohammed had an Iraqi police report with sketches. He had six color photos of the dented bumper and smashed rear window. And a damage estimate from a local mechanic for $893 -- with copies in Arabic and baroque English lettering.

The documents explained that “we send to your excellency the witness, Ali Mamduah, mechanic, hoping to approve his sayings judicially and issue the proper decision.”

Like all claims, Moore said, Mohammed’s would be checked against military records to verify that U.S. troops had conducted operations at the specified time and place. Soldiers are required to report all cases of civilian death, injury or property loss.

The investigation does not approach the rigor of a damages claim in U.S. courts, said Moore, who was a criminal defense lawyer before joining the military.

“These are wartime conditions,” he said. “We can’t go down to Abdullah’s garage to make sure his damage estimate isn’t wildly inflated.”

Every other Saturday, Moore said, his staff makes the dangerous trip from the base to an office in downtown Baqubah to make payments -- a total of $10,000 to $25,000 on a typical day. In a few cases, usually involving deaths, payments are made at a claimant’s home in order to show sympathy and respect, Schiffer said.

In the case of Dhia Mohammed’s wrecked Hyundai, Moore said a payment would probably be approved, if the incident was verified.

“But he won’t be getting his $893,” Moore said. “I’d say $200 to $300 is more like it.”