About the author(s):
John Ramming Chappell is a Senior Non-Resident Fellow at the Center for International Policy whose research and writing focuses on human rights, armed conflict, and US foreign policy. He has published commentary and analysis in leading policy publications including Just Security, Lawfare, The Hill, Arms Control Today, and Opinio Juris, as well as a number of academic journals. His analysis has also featured in media outlets including the New York Times, Washington Post, NPR, Politico, and CNN, among others.
John’s professional experience includes appellate litigation, foreign policy advocacy, and political organizing. He worked for five years at Center for Civilians in Conflict (CIVIC), where he led advocacy campaigns on atrocity prevention in Palestine, Sudan, Yemen, Nigeria, maritime Latin America, Ukraine, and elsewhere. He has also worked at several other advocacy and research organizations. John holds a J.D. and M.S.F.S. from Georgetown University and is a member of the District of Columbia Bar.
Madison Hunke is the U.S. Program Manager at the Center for Civilians in Conflict (CIVIC), where she works on civilian protection policy and accountability in US military operations. Her research and advocacy focus on the implementation of the Department of Defense’s civilian harm mitigation and response framework, civilian harm reporting and transparency, and amends and redress in conflict-affected communities, including in Somalia and Iraq. She holds a M.A. from the University of Denver Josef Korbel School of Global and Public Affairs and her writing has been published in Just Security and Lawfare.
This post forms part of phase two of the Beyond Compliance Symposium: How to Prevent Harm and Need in Conflict, hosted by the Armed Groups and International Law blog. The introductory post can be found here. The symposium invites reflection on the conceptualisation of negative everyday lived experiences of armed conflict, and legal and extra-legal strategies that can effectively address both civilian harm and humanitarian need.
Introduction
During the US-led coalition’s campaign against the Islamic State in Mosul, a family was forced to evacuate their home when it was damaged by a missile strike nearby. They sheltered in a neighbour’s home until it too was struck that evening, destroying the house and killing half of the people inside. Those killed included four of the family’s six children and their father. The mother, leaving behind the bodies of her husband, son, two daughters, and an eight-month old infant, fled the area with her remaining two sons amidst ongoing shooting and shelling, taking nothing with them but the clothes on their backs.
They survived through the support of friends and family, but received no medical or psychological support, leading to long-term repercussions. The mother continues to suffer spinal and kidney damage, and one of her sons, deeply traumatised, attempted suicide multiple times and became abusive to his mother. Neither son returned to school after the conflict due to lack of interest after what they had experienced. They never received any kind of redress for the loss of their home, but recently began to receive a pension from the Iraqi government for the deceased family members, allowing them to finally move into a new home of their own.
© European Union 2017 (photo by Peter Biro). The offensive to retake Mosul caused widespread destruction. As part of the ECHO-funded humanitarian response, all weather temporary shelter kits have been supplied to over 8,100 displaced families.
This family’s experience, shared with Center for Civilians in Conflict (CIVIC) during research on civilian preferences for amends, illustrates the layered nature of harm in conflict – including death, physical injury, psychological trauma, and economic loss – that they are still struggling to address and recover from eight years later. Their story is just one of countless examples of the suffering experienced by the residents of Mosul under Islamic State occupation and the US-led campaign of airstrikes to recover the city.
The United States has decades of precedent for responding to civilian harm through ex gratia, solatia, or “condolence” payments in Iraq and Afghanistan. These payments, which are typically small, one-time financial gestures intended as expressions of sympathy rather than admissions of legal liability, make up the backbone of US civilian harm response. Yet, as the example above demonstrates, financial payments alone can only go so far in addressing the complex and enduring consequences of harm. Often, civilian harm in conflict is not isolated to a single individual, family, or home (see here and here), and its effects are rarely only material (see here and here). So while a small payment may provide important material assistance for a struggling family, it falls short of true recognition and response for the harm caused – what CIVIC refers to as “amends”. Amends consist of “warring parties providing recognition and assistance to civilians they harm within the lawful parameters of their combat operations” and can take a variety of forms, depending on the needs and preferences of the victims and survivors (at 6). Amends have a complicated relationship to the more familiar concept of reparations, but, as this post will highlight, the foremost distinction is that reparations generally arise from an obligation under international law and respond to harm that occurred in violation of international law, while amends are not contingent on whether harm experienced was the result of an unlawful act.
The US Department of Defense’s Civilian Harm Mitigation and Response Action Plan (CHMR-AP) and subsequent Instruction on Civilian Harm Mitigation and Response (CHMR DoD-I) signaled a growing acknowledgment that responses can incorporate different types of support, and that additional, more holistic forms of redress should be explored. Current political priorities from the second Trump administration have stalled the implementation of these policies, but ongoing US military operations across the globe and increasing reports of civilian harm demonstrate a continued need to consider how militaries can meet their moral and strategic responsibility to respond.
Needs That Arise from Harm
Responses to harm can take both material and symbolic forms, but responses often prioritise one at the expense of the other. This reflects a narrow understanding of the needs harm can create. Civilian harm creates multiple, layered needs for individual victims and communities, often with reverberating and long-lasting impacts, that cannot be fully addressed by any single approach. Material needs are often the most immediate and the most visible, including things necessary for basic survival like food, shelter, and medical care. Material needs can also include the restoration of critical infrastructure and essential services that were directly or indirectly impacted by military operations or financial assistance to a family whose breadwinner cannot work due to a disabling injury from explosive weapons. Responses to such material needs, when delivered in isolation, risk being interpreted as development or humanitarian aid unrelated to military-caused harm. If a perpetrator fails to acknowledge the harm committed and communicate the link between that harm and the response provided, material amends can be rendered less meaningful, if not meaningless.
This is because harm to civilians can also produce extensive social needs that are more difficult to effectively address, like the loss of communal trust and social cohesion, and inequalities that have been exacerbated by conflict. Individuals and communities can experience intense psychological needs, such as for the recognition of their suffering, validation of their loss, and restoration of their dignity. Finally, all of these needs are inseparable from victims’ and survivors’ need for justice and accountability for the harm they experienced. Because they are linked to the consequences of a harmful act experienced by an individual or community, there is an accompanying need for an acknowledgement of harm and responsibility and an assurance of non-repetition, which can contribute to a sense of closure.
Symbolic responses like public apologies, memorials, commemorations, or ceremonies – if explicitly linked to the harm suffered and accompanied by material assistance – recognise the dignity of the victims and survivors and validate their experiences. In some cases, victims and survivors of harm may even prefer symbolic measures to material assistance. Because effective responses should respond to the preferences and needs of victims and survivors, the challenge becomes not choosing between material and symbolic responses at the expense of the other, but formulating options that integrate them in ways that both dignify civilians’ suffering and take responsibility for the harm that caused it.
The Current Fragmented Approach
At worst, armed actors have failed to respond to conflict-related harm, which is a common occurrence; at best, governments have implemented a patchwork of mechanisms dealing with compensation, redress, and accountability in response to civilian harm. Each of these mechanisms is rooted in different frameworks that rarely interact, but may be indistinguishable from one another for those on the receiving end of such programs.
Humanitarian aid – which may include the provision of food, shelter and medical care for the people and communities with needs arising from armed conflict or natural disasters – typically starts while an armed conflict is ongoing. International humanitarian law (IHL) imposes obligations on parties to conflict to allow and facilitate the rapid and unimpeded passage of humanitarian aid (Article 23 and 59 of the Fourth Geneva Convention, Additional Protocol I, Art. 70(2) and ICRC Customary Law Study, Rule 55). For occupied territories the obligation is heightened, with occupying States required to provide (not just permit the passage of) humanitarian aid in the form of food and medical supplies (Art. 55 of the Fourth Geneva Convention). However, humanitarian aid is largely fulfilled by third countries and humanitarian organisations, adhering to the principles of humanity, neutrality, impartiality, and independence. They do so based on need, regardless of whether a person or community directly experienced harm from any particular actor (see here and here). From the perspective of a person receiving humanitarian aid, though, it can seem similar to other forms of post-harm support (and the goods or services provided can be indistinguishable), generating confusion.
In contrast with humanitarian aid, some governments have separate but complementary programmes to make amends to people harmed by their own military operations or the actions of another armed actor operating in their territory. Amends can include both symbolic measures, like apologies and acknowledgements, as well as material support, which may be in-kind or monetary. Militaries extend ex gratia or condolence payments irrespective of the lawfulness of harm; in other words, a civilian harmed by military operations may be eligible for amends even if the harm they experienced was part of an action that did not violate IHL (or when it’s not clear yet if the act of harm was lawful or not). For example, the United States military currently administers amends to civilians harmed in its military operations primarily through an annual $3 million ex gratia fund (though this fund has largely gone unused in recent years). However, policy-based amends such as those provided by the United States, do not displace a victim or survivor’s right to reparation for gross violations of international human rights law (IHRL) or serious violations of IHL.
Another framework that aims to address conflict-related harm is transitional justice. Transitional justice refers to broader processes, often undertaken after war or repression, in which governments and societies seek to address the consequences of widespread harm, including from violations of IHL or IHRL. Transitional justice processes are rooted in States’ obligations under IHL and IHRL, but whether those obligations – particularly obligations related to reparations – apply to non-State armed groups remains ambiguous. The pillars of transitional justice are truth seeking, criminal prosecutions, reparations, and guarantees of non-recurrence. Among these, amends sometimes overlap with reparations, and the two can bear a close resemblance. As noted above, the key distinction is that reparations are typically given to redress harm experienced as a result of a violation of IHL or IHRL. However, some mechanisms framed as reparations may proceed administratively without a court formally concluding whether an international law violation occurred, often for the purpose of expediency (see here, here, here and here). In such cases, they are functionally equivalent to amends and both further the overall goals of transitional justice processes. Some definitions would not characterise such mechanisms as reparations if they do not specifically acknowledge a violation of international law.
Finally, development projects provide long-term support to an economy to improve people’s well-being and quality of life and are not directly tied to conflict – though may seek to address many of the long-term effects of conflict such as destruction of infrastructure, loss of livelihood, or interruptions in education. For example, the United States Agency for International Development administered a fund in Iraq that provided vocational training and start-up grants to people injured in the Iraq war. While humanitarian aid is meant to be short-term support provided during emergencies, development programs are long-term interventions seeking to reduce poverty and increase self-sufficiency. From the perspective of communities, the distinctions between humanitarian and development assistance are not necessarily clear in post-conflict contexts.
Meaningful Community-Based Amends
Community-based amends offered by parties to a conflict may provide a means of bridging gaps between existing redress mechanisms. Humanitarian and development aid are not directly tied to harm experienced, meaning they lack the symbolic elements of recognition and taking responsibility. Reparations usually differ from amends in both scope and rationale: they are typically broader in nature and arise from a legal obligation rather than a policy-based expression of solidarity. Determining whether a person is owed reparations as a matter of law may require a lengthy legal process. Meanwhile, individual amends usually only capture direct harm from individual military strikes, rarely taking into account the reverberating harm that continues to affect civilians long after military operations end. Community-based amends offer a model that inherently incorporates recognition of harm and serves a symbolic function while addressing harm experienced at the level of a broader community. Community-based amends respond to civilian harm that affects entire communities, addressing collective harm in ways that individual amends alone do not. After the destruction of shared infrastructure, loss of access to shared resources, disruption of social networks and livelihoods, or environmental contamination affecting entire populations, meaningful response may require addressing communities’ needs as a whole, in addition to responses to individuals.
As governments and militaries increasingly consider how to respond to widespread harm from military operations, including in the context of the use of explosive weapons in populated areas, some are exploring community-based responses as an option (see here and here). However, community-based amends are a new framework with relatively few positive examples to emulate. For example, the Dutch government’s attempt at a community-based response to harm from a 2015 airstrike in Hawija, Iraq offers a cautionary tale. Research by PAX and Ashor Iraqi Foundation on the response effort showed that survivors did not know the purpose of the projects or that they were in response to harm caused, benefits from the projects did not reach those most affected, and the projects did not respond to the communities needs or preferences. While this attempt yielded valuable insights, it is not regarded as a successful model.
To inform future decisions around community-based amends, CIVIC formulated a set of Guiding Principles for Community Based Amends, which distill lessons from analogous systems of post-harm response to provide policymakers with a set of priorities and considerations for implementing an effective community-based amends programme. The ten principles are interconnected, drawing from geographically diverse examples across existing academic and policy literature. The following paragraphs outline three key aspects of the principles: application to widespread or collective harm; complementarity with individual amends; and the importance of communication and symbolic meaning.
First, decision makers should consider community-based amends as an option when harm is widespread or felt collectively, which may be the case when people share resources or characteristics. For example, inhabitants of a neighborhood that sustained damage to critical infrastructure, medical facilities, or education systems collectively experience the loss of those systems, and the consequences of such damage can reverberate for years to come. Such situations often arise when explosive weapons are used in populated areas, damaging housing, schools, hospitals, cultural sites, and other locations upon which civilians rely. In other cases, a community may experience harm collectively due to their ethnic, religious, or cultural identity, whether because they bore a disproportionate share of conflict-related harm or because, for example, armed conflict affected their access to cultural resources.
Second, community-based amends should complement, rather than replace, individual amends. Governments may turn to community-based responses for expediency or cost-effectiveness in cases where they prefer not to identify and engage with harmed individuals. However, individuals within a community experience harm differently and at different severities, and some may feel that a community-based program does not sufficiently recognise the specific harm that they experienced. Authorities implementing amends programs should treat individual and community-based measures as overlapping and complementary. CIVIC research in Somalia and Iraq indicated that civilians harmed in armed conflict strongly prefer that community-based amends do not replace individual amends. PAX and Ashor Iraqi Foundation research in Iraq reached similar conclusions. Armed actors should always consult with affected communities to ensure they implement amends in line with the community’s needs and preferences.
Third, community-based amends must recognise and acknowledge harm and be carried out and communicated as responses to harm. Authorities implementing community-based amends programmes need to clearly communicate the purpose and intent of the programme so that it fulfills the symbolic purpose that amends serve. Such communication also helps distinguish community-based amends from legal reparations, humanitarian assistance or development aid. The symbolic value of amends also requires that the actor responsible for harm should be primarily responsible for a community-based amends program. The PAX and Ashor Iraqi Foundation research regarding the Dutch government’s community-based response discussed above illustrated that survivors did not know that amends projects were funded by the Dutch government or undertaken in response to harm caused, contributing to “increased frustration and resentment towards the Netherlands among survivors.”
Other guiding principles, which can be found here, cover the balance between material and symbolic acts; consultation with civilian victims and survivors; conflict sensitivity; distinguishing amends from humanitarian assistance; timeliness; and the role of various actors in implementation.
Conclusion
No amount of money or support can undo all the suffering that civilians experience in war, whether the loss of a loved one, life-altering injuries, life-long psychological trauma, or displacement. But material measures can help them rebuild their lives and manage the reverberating effects of conflict on their lives, and acknowledgements or apologies can help them gain psychological closure. When an entire community experiences harm, community-based measures can extend amends to address its broader and longer-lasting effects.
Community-based amends offer significant promise to provide support and acknowledgment to civilians who have suffered from harm during armed conflict, encompassing a wider range of harm than individual amends. All signs indicate that armed conflict will continue to unfold in cities and towns where civilians live. Governments and militaries should build on practices of one-time individual condolence payments and toward amends programs that are holistic, clearly communicated, and explicitly linked to the harm caused. The Guiding Principles outlined here provide a starting point, but governments will need to muster the political will to formulate amends options that better address the full range of harm and need that civilians experience, even if doing so may introduce new challenges and complexities in implementation.