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Emily Gilbert, University of Toronto

Draft of paper forthcoming in Security Dialogue

***Not to be cited without permission of the author***

emily.gilbert@utoronto.ca

THE GIFT OF WAR:

CASH, COUNTERINSURGENCY AND ‘COLLATERAL DAMAGE’

ABSTRACT

Militaries, as part of the counterinsurgency initiatives in Afghanistan and Iraq, have been making

payments to civilians in cases of ‘inadvertent’ injury, death, and/or property damage. There are

no legal norms governing civilian compensation in war. Rather, military payments are seen as a

way to help ‘win’ the hearts and minds of the population. This paper examines this turn to

military payments, with a focus on US practices, and the implications for our understanding of

contemporary changes to warfare. I suggest that while monetary payments can alleviate short-

term economic need, the lack of legal liability is problematic as it may help amplify the impunity

of warring soldiers. The paper begins with an overview of the bureaucratic ways that monetary

values are attributed to death and injury. The paper then turns to consider how these payments

reinforce the notion of ‘collateral damage’ that is legitimized in International Humanitarian Law

(IHL). Finally, I draw upon theories of the gift, and of the gift of war, to interrogate the affective

register in which military payments are made, inserted as they are in narratives of sympathy and

condolence, which bind the giver and receiver in relations of indebtedness and dependence.

KEYWORDS: critical security studies, counterinsurgency, collateral damage, money,

compensation, the gift

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I: INTRODUCTION

In March, 2012 a US soldier went on a killing spree in Panjwai district, near the US military

Camp Belambay, Afghanistan. Sixteen people were killed, nine of whom were children. This

was a truly horrific attack. What interests me in this paper, however, is not the violent incident

itself, but the monies that were paid out to the victims. The families of the dead each received

$50,000, while $11,000 was given to the injured, reportedly under direct instruction of the

president (Rosenberg and Rahimi, 2012).1 These kinds of payments for civilian death and injury

have become commonplace in the ‘war on terror’—although usually for much smaller amounts.

The international forces regularly pay out cash when their troops ‘inadvertently’ cause the injury

or death of civilians, or inflict property damage. In the US, military payments are seen are a core

component of counterinsurgency (COIN) strategy, so much so that legal scholar John Fabian

Witt observes that they “are fast becoming one of the ways the twenty-first century U.S. military

attempts to win the hearts and minds of civilians in war zones” (Witt 2008: 1456). Between

2003 and 2006, the US Department of Defense (DoD) distributed nearly $59 million to civilian

casualties and property damage (GAO 2007: 50). Millions more have been paid out since,

although the DoD has been less forthcoming about the amount (Turse, 2013).

How to attend to civilian casualties and deaths has been a pressing concern in the ‘war on

terror,’ as the numbers of civilians harmed greatly outstrips that of combatants, with ongoing

violence inflicted by airstrikes, at checkpoints, as a result of motor vehicle accidents, during

house raids and night raids, and now drone strikes. This is despite the assertions that COIN

would minimize harm to civilians, and the promises that new “precision-strike” technologies

would also lead to fewer, albeit more targeted deaths (Rasmussen 2006: 43). It is in this context

of heightened concern about civilian deaths and injury that military payments have become a

pervasive mechanism for responding to civilian harm, and have been deployed in an effort to win

the ‘hearts and minds’ of the population. Yet, while money can provide important short-term

relief to victims and their families, as I will discuss in this paper, these payments also give rise to

a number of important issues.

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In the following section I provide a review of the kinds of payments that have been made

by the US military, with a focus on the wars in Iraq and Afghanistan; some mention will also be

made of how other state institutions—such as the US Embassy and US AID—as well as private

security companies like Blackwater, have been making payments. While my primary focus is on

the US, it is important to note that payments have been made by other international forces—

including the UK, Germany, Italy, the Netherlands, Poland, Norway, Canada and Australia—but

less information is known about these cases. With respect to the US, there is a considerable

archive available thanks to Freedom of Information Act (FOIA) requests made by the American

Civil Liberties Union (ACLU). About 12,000 pages of de-classified documents dating from

between 2003 and 2006 have been posted on the ACLU website.2 A second archive of

documents, from 2008 to 2011, is available as a result of a FOIA request made by the

investigative magazine The Nation, although in this case the over 1,000 pages are heavily

redacted (Turse, 2013). These files are analyzed herein, supported by a wide range of other

documents, including military doctrine, procedural booklets, (eg powerpoint presentations on

training for the soldiers who are designated to approve payments), and some first-hand accounts

published by military judge advocates who have returned from the field. These materials are

supplemented by media reports; government policy papers; reports from NGOs; and even

Wikileaks.

As I will describe in the next section, the payment of money by the military is becoming

increasingly regularized and bureaucratized, in some ways akin to Western insurance practices.

If and when bodies are accounted for, they are accounted for quite meticulously. But as I

subsequently argue, this economic accounting does not entail accountability. The bureaucratic

nature of the payments impedes responsiveness to the victims and their specific needs. The

insistence that there is no legal liability attached to payments means that there is neither a claim

of responsibility, nor an acknowledgement of wrongdoing by the military. Furthermore, the lack

of accountability may actually make possible military impunity for civilian harm, and reinforce

the international norms of war concerning ‘collateral damage.’ Rather, military payments are

presented as expressions of sympathy, condolence and compassion. In the penultimate section of

this paper, I turn to another frame, that of the gift, to probe more deeply into this affective and

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moral economy. Theories of the gift attend to the discourses of generosity and benevolence in

which military payments are inserted, while also underscoring the relations of indebtedness and

obligation that are forged. This is especially pertinent in the context of war, for as Kennan

Ferguson and Mimi Thi Nguyen have illustrated, the gift is at the heart of Western liberal

warfare, embedded as it is in endlessly-deferred promises of “freedom.”

Examining military payments through the lens of the gift thus draws attention to the

social and political violences that they enact, and the imperial relations that these military

payments reinscribe. In so doing, this analysis provides a more nuanced and complex

understanding of the mechanisms through which COIN strategy operates. Much excellent work

has already shown how COIN has at its heart a biopolitical impetus in that they military seeks to

administer the lives of the population so as to better govern over, manage and subdue civilians

and counter-insurgents (eg Gregory, 2008; Howell, 2010; Anderson, 2011; Fluri, 2011;

Kienscherf, 2011; Bell, 2012). Military payments, with their bureaucratic information-gathering

practices and coherences with Western insurance, can likewise be understood as a kind of

biopolitics exerted in the interest of the social welfare of the population. Yet this is not all that is

going on. Thinking through military payments as a gift illustrates how this exchange is structured

and legitimized through social relations of affect. It shows how it is precisely through affective

appeals to sympathy and condolence that the needs and the interests of the victims are

suspended, and the imperial noose is tightened. The moral appeals to empathy, benevolence and

compassion produce and reproduce structures of subjectivity that bind soldiers and civilians into

relations of indebtedness and dependence.

II: WINNING HEARTS AND MINDS

The economic and financial dimensions of military COIN strategy have been little examined, yet

money has become one of the key mechanisms through which the military invests in the

“logistical life” of the population and embeds the idea of a better future, a future that is aligned

with the interests of Western intervention (Anderson, 2011). While the focus of this paper is on

death and injury payments, these are but one part of a whole suite of initiatives that are being

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taken up by soldiers as money is being recast as a ‘weapon of war,’ from investments in the local

economy, to infrastructure development, to micro-loans (Gilbert, 2015). With respect to

compensation, the US Department of Defence (DoD) has three different programs in place in the

‘war on terror’: the Foreign Claims Act (FCA), solatia payments, and condolence payments.

Each of these is intended for civilian victims, although their different genealogies speak to the

ways that they are used and allocated differently. The FCA (10 US Code § 2734) has the oldest

history, long predating the ‘war on terror.’ It originates out of WWI legislation that was passed

into law in 1942, which was made permanent in 1956. The act was created to provide a

mechanism for compensating European allies for damage caused by US military vehicles

imported to Europe in WWI, especially in France (Witt 2008: 1640). At the core of the FCA

historically, and today, is “To promote and to maintain friendly relations through the prompt

settlement of meritorious claims.”3 Whereas the act was originally intended to remunerate the

citizens of allied countries, in recent decades the FCA has been reworked to make it available to

any civilian who might be considered “friendly” to US interests. This change was especially

important to the Vietnam war, when the FCA was mobilized to support non-insurgents. In

Vietnam, fourteen foreign claims offices were in operation and claims on these offices became so

important to the population that when payments were delayed in 1970, a riot broke out (Witt 2008: 1468).

The process for claims-making through the FCA is fairly standardized. When an incident

occurs, soldiers are instructed to provide victims with information on how to seek a claim, and

may even distribute a card with instructions [Illustration 1: Iraqi Claims Card]. Information is

solicited about the incident, and a claims form completed that includes date, name, age,

citizenship, place of residence, employment, and details regarding the incident. A separate victim

report may also be sought, with interpreters called upon to facilitate (GAO 2007: 34). If

necessary and available, sworn affidavits by soldiers at the scene are included in the report. Most

important, however, are the written significant act reports (SIGACTS) or Spot reports (filed by

phone) that US soldiers are mandated to complete whenever an incident occurs in the field.

These are crucial to the claims process since more credence is placed on evidence provided by

the US military (Tracy 2008: 56). Other documents that may be included in the FCA claim are

journal entries, maps or hand-drawn diagrams of the scene, and photographs, especially of

damaged vehicles, and sometimes of victims.

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(ILLUSTRATION 1: Iraqi Claim Card)

Once a claim has been submitted, it is reviewed by a DoD attorney to determine whether it meets

the required criteria. The FCA has three important stipulations: 1) a claim must be submitted

within two years of the event; 2) the claimant must be determined to be “friendly” to the US; and

3) a claim cannot be made when the damage arises from combat. Because of these strict

constraints, only a small number of FCA claims in Iraq and Afghanistan have been approved,

and more of these have had to do with property damage than with civilian death or injury. Not

only is the “friendliness” of a victim difficult to determine—always complicated, but perhaps

especially so in a COIN context as the differentiation between insurgent and counter-insurgent is

blurred—but the principle of non-combat severely constrains when claims can be made, as again,

the parameters around what constitutes combat are murky. In his analysis of the ACLU files,

Witt has determined that of the 490 claims made between 2005 and 2006, 404 were denied (Witt

2008: 1471). As stated in one of the rejected claims: “The U.S. cannot pay your claim because

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your brother’s death was incident to combat. I am sorry for your loss, and I wish you well in a

Free Iraq” (Tracy 2008: 1).

Because of the difficulty in making FCA claims in the ‘war on terror,’ the use of solatia

and condolence payments has proliferated. Solatia payments have been around since at least the

Korean War, and are paid out of the local unit’s operations and maintenance funds. These

payments were also customary in the Vietnam war, when the “going rate for adult lives was $33.

Children merited just half that” (Turse, 2013). Unlike a FCA claim there is a lower evidentiary

threshold, and solatia can also be made for incidents arising from combat. They are meant,

however, for situations where such payment is deemed culturally appropriate and in meeting

with local tradition. Although solatia is now commonplace in Iraq and Afghanistan, CENTCOM

initially determined that it was not appropriate, and so it was not until late 2004 and 2005,

respectively, that it was introduced. In the meantime, yet another kind of payment for death and

injury arose, paid out of funds from the Commanders Emergency Response Program (CERP).4

Like solatia, there are few constraints regarding the use of condolence payments, which are

described as “symbolic gestures” (MAAWS 2011: 125; MAAWS 2010: B-10). Condolence can

sometimes be used when a FCA claim is denied. In the case mentioned above, for example,

when the FCA denied the claim on the brother’s death, $600 was awarded as a condolence

through CERP. This was actually much lower than the amount of money that was originally

requested, and the standards that govern solatia and condolence. Generally, a sliding scale is

used to determine the extent of injury or property damage: eg $600-$1,500 for loss of a limb or

other injuries, up to $500 for property damage, and $500-$2,500 for a destroyed vehicle.5 The

usual amount awarded for death is $2,500 (GAO, 2007). The chilling bureaucracy that

characterizes military payments is made apparent on the SF 44: US Government Purchase Order-

Invoice-Voucher that is issued as a receipt of payment. [Illustration #2: Death of Wife].

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Solatia is explicitly intended to be used “in accordance with local custom as an

expression of sympathy toward a victim or his or her Family [as] is common in some overseas

commands.”6 Indeed, there are some coherences between solatia and Islamic legal doctrine

(fiqh), which has an “underlying and fundamental concept of compensation for life, limb and

property” (Hallaq 2009: 309; see also Peters, 2005). As Arab scholar Wael B Hallaq notes,

Sharia law has transformed old Semitic and ancient Near Eastern traditions into “a system of

monetary awards for the victim or his/her family to be paid by the culprit or his/her family, this

amounting in effect to a form of remuneration in place of revenge” (Hallaq 2009: 310). Rather

than turn to the death penalty for a murdered, victims might choose to accept diya. Fixed but

generous monetary values are determined based on a sliding scale, not unlike that used with

solatia and condolence.7 Yet, the military’s appeal to local customs are somewhat disingenuous

in that the mechanism for compensation had a much longer genealogy that suggests the money is

paid out of military self-interest rather than local needs. Moreover, military payments differ

considerably with respect to the process of payment: diya is made as an alternative to retribution,

and is used as a mechanism to express forgiveness, with mediation a crucial part of the process

(Ramadan 2006: 54). A requirement is that “fair compensation” is negotiated so that the honour

of the victim is restored (Hallaq 2009: 320). The perpetrator not only acknowledges

responsibility for the harm caused, but is held accountable by being responsive to the needs of

the victims. The decision to accept payment is thus wholly that of the victims, who decide how

justice will be meted out. Yet this attention to justice—what might be called restorative or

retributive justice in the West—is not part of the military payments, a point that will be returned

to below.

Rather, military decision-making has been described by Witt as more like “personal

injury lawyers and insurance company claims adjusters: using cash to settle civilian claims

against the armed forces.”8 While the terms of the lesser-used FCA mean that it can account for

negligence and take into account local law, condolence and solatia payments do not. As with

many forms of insurance, there is no assessment of cause or intent, and thus no possibility of

forgiveness. Instead, payment is “unconditional and contractual, no longer based on the notion of

one party’s responsibility” (Defert 1991: 214). Michel Foucault has suggested that

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compensation—in the form of charity and insurance—is at the centre of optimizing forms of

biopower in cases of “accidents, infirmities, and various anomalies” (Foucault 2003: 244). As he

and his interlocutors have shown, compensation and insurance programs have been mobilized as

a calculative practice through which to regulate, normalize and enhance the population (Ewald,

1991). Similarly, military payments are used in COIN strategy to govern through the population,

and to win its ‘hearts and minds.’ As with Western forms of insurance, these payments are

bureaucratic, based on evidence gathering, the decision-making of administrators, and the minute

recording of information on standardized forms. Life is rendered technical and calculable

(Langley 2007: 75; see also Lobo-Guerrero, 2011), rather than allowing any process of

mediation or recognition of responsibility that could lead to forgiveness, or restitution.

It is thus not surprising that the money is not always welcomed by victims. For example,

in response to the Panjwai massacre mentioned above, the brother of one of the victims is

recorded as stating: “I don’t want any compensation. I don’t want money, I don’t want a trip to

Mecca, I don’t want a house. I want nothing. But what I absolutely want is the punishment of the

Americans. This is my demand, my demand, my demand and my demand” (Harooni and Taylor,

2012). In another incident in Helmand province, Habibirrahman Ibrahimi reports that one of his

Afghan interviewees, Ismail, was “enraged” by monetary payments offered by the military. In

his words, “Afghans must seem like animals to the Americans if they can put prices on them… If

someone killed an American and offered to pay 10,000 dollars, would they accept it?” (Ibrahimi,

2010). In yet another high profile case in Haditha, Iraq, from 2005, the families of victims were

outraged that no military personnel who were involved in the killing of 24 civilians were jailed.

In this case the victims and their families had each been offered $2,500 in the aftermath of the

massacre, a sum that was criticized by a lawyer representing some of the victims as it did “not

match the magnitude of the disaster” (Bender, 2006). Many of the families did not accept the

money (Broomfield, 2012).

Recalling his experiences as a military judge advocate, Jonathan Tracy has noted that

“Every Iraqi I spoke with on the issue expressed shock and disbelief I could only offer $2,500 for

the death of a human being. Not one Iraqi ever said the amount made sense, or was equitable.”9

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Moreover, despite all the bureaucratic standards, there are many examples of inconsistencies

with respect to the payments. For example, when a US forces car killed two members of the

same family, a maximum of $7,500 should have been claimable under CERP: $2,500 for each

death and up to $2,500 for vehicle damage (GAO 2007: 25). But extraordinary circumstances

were found, and a total of $10,000 was allowed, for reasons unknown. In other cases, the full

amounts requested are not approved. A claim for $5,000 was submitted by a family whose young

child was killed when a Bradley fighting vehicle hit a home and the wall collapsed. Only a

payment of $2,400 was “reasonably substantiated,” however, although no rationale was provided

to explain the definition of reasonableness that was employed, or how the amount was

determined (CIVIC 2007). In another egregious example, a destroyed fishing boat and equipment

warranted a payment of $3,500, but no money was paid out for the fisherman who was shot and

killed from a US helicopter; the combat exclusion was used to refuse payment for the death,

while the property damage was reimbursed but it was determined to be a result of military

negligence (Witt 2008: 1474).

The differential values attributed to death and injury appear to be the result of an

“arbitrariness” of accounting (Witt 2008: 1472). As Ganesh Sitaraman argues, “Because the

condolence process is discretionary and decentralized to the level of particular commanders, the

procedures and application have been inconsistent and largely ad hoc” (Sitaraman 2009: 1794). It

is also the case that geographical location or the kind of incident—night raid vs air strike—can

impact on the ability to access soldiers to make a claim. So while the process is regularized, it is

also highly uneven in its application. This raises another set of questions as to whether these

payments, if they are to be made at all, should be made by the military. Is making payment for

death or injury an appropriate role for soldiers? No matter how much training is provided, it is

still the case that those who are responsible for the harm inflicted are being tasked with making

decisions regarding how that harm should be valued. There are no mechanisms in place for

review, for complaints, or for monitoring. As already noted, there is no responsibility attached,

or responsiveness to the victims, with almost no transparency about the payments. For all the

accounting for death that takes place in the making of a military payment, militaries are not held

accountable for the harm that is inflicted in any moral or legal sense. These issues are addressed

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further in the following section, as I suggest that the payments not only deny liability, but may be

used precisely to evade further investigation. Indeed, that may be the very reason that they have

become so widespread in the ‘war on terror.’

III: COLLATERAL DAMAGE

The US military is not the only institution that has made payments in Iraq and Afghanistan.

These payments have been pervasive across the international forces, including the UK, Australia

Canada, Germany, Italy, the Netherlands, Norway and Poland (CIC, 2013). Relatively less

information is available on these militaries, however. With respect to Canada, for example,

evidence of payments was leaked out by way of a report to the Receiver General in 2010 which

revealed that $650,000 Cdn was distributed in Afghanistan between 2008 and 2009 (Moore,

2010). Yet further information has been difficult to acquire. A Freedom of Information request

by the author gave rise to over 200 pages of documents, but these were so heavily redacted that

almost nothing is legible. When probed, the Canadian Department of Defence has argued that the

details regarding compensation are private matters, and that it does not want to jeopardize the

security of recipients (Friscolanti, 2011). Considerably more information is available on the UK,

as a result of a Freedom of Information request to the Ministry of Defence (MoD) by the British

newspaper, The Guardian.10

It was revealed that the MoD distributed £825,000 in Afghanistan

between 2007 and 2009, while £4.17 million went to small claims in Iraq between 2003 to 2009

(The Guardian, 2010). Like the US, they used a “table of standard injury and death payments to

guide them. It includes suggested awards of $200 for minor injuries, $240 for the loss of a toe,

$1,000 for the loss of an eye and $7,000 for the amputation of both feet” (Boros, Shaw and

Kehoe, 2014). However, and also similar to the US, the actual amounts distributed have

fluctuated greatly: in one case only £542 was paid out for a girl killed in a fire, whereas, in

another, £185 was paid to a security guard when his dog was shot and killed (Quinn et al, 2011).

Germany, in contrast, has not had a formal compensation program. Instead, it has

funneled aid to community programs (Townsend, 2010). There have been, however, a few high-

profile incidents, when individual payouts have been made. In August, 2008, three civilians were

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shot at checkpoint: the family of the victims was provided with $20,000 in cash, and given

another $5,000 towards the cost of a car by the German Ministry of Defense (Moore, 2009). Of

significance, and unusually, this generous amount was negotiated with family members and

community leaders. In another instance, in September 2009, a German lead NATO airstrike in

Northern Kunduz resulted in the deaths of up to 142 people (Moore, 2009). This incident rocked

the German government because attempts had been made to cover-up civilian deaths. When the

deaths were made public, the Defence Minister, State Secretary and the Army Chief of Staff

were forced to resign. A year-long parliamentary enquiry was announced. Eventually, Germany

awarded $5,000 to the each family of the victims (Werkhäuser, 2011).

Although the information available on other militaries is limited, it is clear that there are

significant disparities regarding the amounts of money being disbursed and the procedures

around disbursement. In light of this patchwork of practices, demands for a more regularized

system have arisen, not only because of the challenges that arise when different militaries are

more or less generous with their payments. Leading the charge has been the US-based advocacy

group, Civilians in Conflict (CIC), which has undertaken the most thorough research on these

practices and has promoted more coherent and consistent payments. Formerly known as the

Campaign for Innocent Victims in Conflict (CIVIC), the organization was founded in 2003 by

humanitarian worker Marla Ruzicka.11

Although they actively work with military

representatives, their advocacy arises from a human rights framework that emphasizes human

dignity. Their proposals have gained some traction. The United Nations, for example, has

expressed support for standardized payments as a mechanism to help alleviate the tensions that

arise from the different values paid out by different militaries, and to ensure that all participating

forces contribute (UNAMA, 2010). And in June 2010, NATO adopted non-binding guidelines

for Afghanistan to ensure a “common approach” for the International Security Assistance Forces

(ISAF).12

Just in the last two months of that year, $1.4 million was paid out through NATO in

southern Afghanistan (Nichols, 2011).

Yet, despite the push towards regularization, there has been little acceptance of CIC’s

proposal for turning “what is currently a charity act into an entitlement owed to victims’ families

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by belligerents” (Carpenter 2014: 57; emphasis added). Militaries do not support making these

payments either a right or an obligation. This is in keeping with International Humanitarian Law

(IHL) which makes no provision for the compensation of victims—except when there are

violations of the rules of lawful combat, eg genocide or rape (Sitaraman 2009: 1795). In fact, as

numerous scholars have noted, there is a troubling paradox inherent to IHL in that it these norms

of war actually legitimize civilian harm in certain circumstances (eg Kennedy, 2006; Sitaraman,

2009; Weizman, 2011). This is as long as reasonable attempts have been made to ensure that the

‘distinction’ between civilians and soldiers has been upheld, so that civilians are not deliberately

targeted, and as long as civilian harm, when it does occur, is deemed to be ‘proportional’ to

military objectives. It is this civilian harm, legitimized through the IHL, which has come

euphemistically to be known as ‘collateral damage.’

Military payments reinforce this principle of ‘collateral damage’ in that there is no

liability attached to the payments they make (again, the IHL only determines liability when the

norms of war have been contravened). Indeed, militaries have taken great pains to ensure that

there is no liability at all attached to victim compensation. The US has been adamant in this

respect. The Iraqi claims cards that are distributed by US soldiers in the event of an incident

assert that “This information is NOT an admission of liability by the soldiers involved and will

be used only to substantiate a claim against the US Army” and cautions: “Do not promise them

anything” [see Illustration #1]. It is further clearly stipulated that condolence and solatia

payments are “not an admission of legal liability or fault” (GAO 2007: 2). Even the FCA, which

is embedded as a US federal statute, refutes legal liability, and also forecloses any future appeals:

“By accepting payment, claimant releases the U.S. government, and its employees and

contractors, from future liability or claims” (GAO 2007: 51). Similarly, the non-binding

guidelines issued by NATO in 2010 explicitly state that payment is not to be taken as a form of

legal liability: “Payments are made and in-kind assistance is provided without reference to the

question of legal liability.”

Rather than an obligation, military payments are characterized in affective terms, such as

sympathy, humanity, compassion, dignity, care, and goodwill—all of which resonate with COIN

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objectives to win the ‘hearts and minds’ of the population. In a report on US military payments

from 2010, for example, CIVIC noted that “In Iraq and Afghanistan, the United States has found

that monetary payments made to civilians harmed express sympathy, dignify losses, and track

with US principles of humanity and compassion” (CIVIC 2010: 1). This is made explicit in the

guidelines for military payments for Afghanistan which state that “Condolence payments can be

paid to express sympathy and to provide urgent humanitarian relief to individual Afghans and/or

the Afghan people in general” (MAAWS 2011: 125; similar guidelines are in the guidelines for

Iraq, see MAAWS, 2010). In the words of Capt. Emily Schiffer, chief of administrative law,

Army’s First Cavalry Division, Iraq: “The program is designed not to make up for anything but

to acknowledge that there has been a tragedy or some sort of damage… 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” (Zucchino, 2005). The very nomenclature of the payments reflects

their affective characterization. ‘Condolence’ means sympathy, while the word ‘solatia’ is from

the Latin solatium (comfort) and refers to ‘damages awarded for emotional suffering’ (as

opposed to physical suffering or financial loss). The generic and frequently used term ‘ex-gratia,’

from the Latin, means ‘out of kindness.’

The presentation of military payments in these terms—as an act of compassion or

kindness rather than liability—further reinforces the principle of ‘collateral damage’ in that the

incident is predetermined as being neither deliberate nor intentional (for if it were deliberate or

intentional, compensation would be obligated). Instead, civilian harm is constituted as an

“accident, unfortunate events for which liberal states cannot properly be held to account”

(Owens 2003: 600; emphasis in the original). The parallels between military payments and

insurance claims (described above) reinforce this characterization of harm as accidental. Patricia

Owens suggests that the ‘accident’ of death has become pervasive in the ‘war on terror’ so that

the ways that harm is not a random occurrence, but constitutive of warfare, are obscured (cf

Virilio, 2000). Furthermore, the “generous promises of reconstruction aid” that have

accompanied COIN operations, she argues, allow for “the erosion of responsibility in a manner

similar to our contemporary no-risk insurance culture.” This is because “It appears less

expensive to be lavishly generous to the target society, or to appear generous, than to tolerate

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open international adjudication of the actions of the US military and the allied forces” (Owens

2003: 607). The profligate disbursement of money by troops is thus not only used to constitute

civilian harm as accidental, but to deny accountability.

In a parallel with Owens’s arguments, military payments are offered as acts of generosity

or kindness, and can be used to circumvent further investigation of an incident. UN Secretary

General Ban Ki-moon, for example, has cautioned against precisely this in his November 2010

Protection of Civilians report, even as he identified the potential value of compensation:

“I note the emerging practice of several States, one that other parties to armed conflict

might consider, of acknowledging the harm they cause to civilians and compensating

victims. The practice of making amends may be provided to individuals, families and

communities. This practice must not be seen, however, as an alternative to prosecuting

those responsible for violations of international humanitarian and human rights law and

delivering justice to the victims and their families and communities.”13

The committee hearings on the Blackwater shootings at Nissour Square also affirmed that

monetary payments were being made to deflect accountability. In his testimony, Stephen F

Lynch (Dem) noted that email correspondence showed “that the State Department’s primary

response was to ask Blackwater to make monetary payments […] ‘to put these matters behind

us’ that is, the deaths of Iraqi civilians, ‘rather than to insist upon accountability or to investigate

Blackwater personnel for potential criminal liability’14

(cited in Snukal and Gilbert, 2015). As

these cases suggest, the disbursement of money was being used as a kind of preemptive

settlement to foreclose other claims.15

In these cases the principles of no-fault insurance are

invoked: a standardized payment is made, but liability is never determined. The individual’s

specific economic needs and requirements are rendered inconsequential, and as there is no

recognition of wrongdoing. There is no opportunity for the victim’s honour to be reinstated.

Restorative justice is sidelined.

Military payments made in response to civilian harm thus reinforce the principle of

distinction in that they are used to affirm the unintentionality of that harm. But they also play on

the principle of proportionality in that they are embedded in economic and moral calculations

17

regarding the relative value of civilian harm vis-à-vis military purpose. As Eyal Weizman

reminds us: “The calculation of proportionality [is] a technique of management and

government—the management of violence and the government of populations—[and] is

undertaken by the powerful side ‘on behalf’ of those it subjugates. Moreover this power is

grounded in the very ability to calculate, count, measure, balance and act on these calculations”

(Weizman 2011: 17). In their payments for death and injury, militaries are calculating, counting,

measuring, balancing and acting upon their calculations that differentiate between the “sacred

lives of Western soldiers”—whose deaths are to be avoided at all costs—and the “sacrificeable

lives of local civilians”—whose deaths have been reckoned as proportional to military purpose

(Fassin 2012: 227). This means the devaluation of the life of civilians; as I noted above, “Not

one Iraqi ever said the amount made sense, or was equitable.” I could also point here to the

differential values attributed to the lives of soldiers. As Didier Fassin notes in passing, the

minimum insurance tariff for a US soldier is $400,000: one-hundred-and-sixty times higher than

the $2,500 attached to the death of an Iraqi (Fassin 2012: 235). But it is not just the relative value

accorded to these lives that matters, but that the standardized calculation of civilian harm makes

no recognition of the “victims’ character, actions, associations, or aspirations”—only the utility

of their deaths vis-à-vis military purpose (Rothbart 2012: 120). This is part of the cold

calculability that deems that $2,500 is a cost-effective acknowledgement of civilian death, and

hence proportional to military objectives.

Military payments for death or injury, which are made as acts of generosity and not as

legal liability, thus affirm the principle of ‘collateral damage’ that is constituted through IHL.

This may help to explain why CIC’s campaign to have military payments recognized as an

entitlement of war (and not optional) received considerable pushback, especially by militaries,

for it would transform the international norms of war, and the principle of ‘collateral damage,’ as

they currently exist. For this reason CIC has had to reframe its objectives in terms of a Making

Amends Campaign (Carpenter 2041: 68). In partnership with a few other organizations such as

Human Rights Watch and the International Crisis Group, CIC has broadened its demands away

from an obligatory cash payment to ensuring greater attentiveness and recognition of civilian

concerns and harm, to make an apologies, and to provide other forms of assistance, as necessary,

18

according to what is deemed culturally appropriate (Holewinski 2012: 320). If implemented,

these measures would provide a more fulsome response to civilian casualties, perhaps even with

an acknowledgement of responsibility. It could also lead to more transparency around civilian

harm, which has been notoriously difficult to acquire, not simply with respect to the secrecy

around military payments. Yet, while transparency and providing more support for civilian

victims is laudable, the benevolence through which military payments are structured still works

to position victims as grateful recipients to the generosity of foreign troops in ways that reinforce

Western imperialism. It is to this that I turn in the following section.

IV: THE GIFT OF WAR

Cast outside of legal liability, and framed in terms of affective qualities such as sympathy,

condolence, and compassion, military payments have many parallels with a gift economy. Like a

gift, military payments are not obligatory, nor legally mandated, which means that it stands

outside usual market relations. It is both an individual and community transaction. It is often

delivered in ceremonial form, at gatherings attended by senior figures from the military and from

the community. And sometimes, it is even presented as if it is a gift. In concrete terms, NATO

had distributed funds paid by its members out of its Gift Standard Operating Procedure (Stewart,

2008). But more generally, these payments are construed akin to a gift. In their book Collateral

Damage, Chris Hedges and Laila Al-Arian describe the experience of Lieutenant Mortgenstein, a

civil affairs officer, who was charged with conveying the news of the death of a man who was

shot and killed at a checkpoint in Iraq. Mortgenstein said, “I had to go tell this woman that her

husband was actually dead. We gave her money, we gave her, like ten crates of water, we gave

the kids, I remember, maybe it was soccer balls and toys. We just really didn’t know what else to

do” (Hedges and Al-Arian 2008: 44). Here, compensation is handed out to the wife of the

deceased, not unlike and alongside the benevolent ‘gifts’ that philanthropic soldiers have been

making to children and families—from pens, to balls, to bicycles (Wall 2011: 489).

To draw this analogy with the gift is not to force a clean equivalence, but to further

empathize the ways that military payments operate through an affective framework of

19

benevolence and goodwill, rather than a legal framework. It speaks to the moral economy in

which military payments circulate, and not simply the calculative practices that are undertaken.

Furthermore, war, with its appeal to humanitarianism, “in which the gift of life is at stake”

(Fassin 2012: 241-242), can be described as a relationship of obligation structured along the lines

of a gift economy, particularly in the sense of war being waged as a ‘gift of freedom.’ This is a

point made by Kennan Ferguson, vis-à-vis the US deployment to Iraq. As he notes, on the third

anniversary of the US invasion, then Secretary of Defense Donald Rumsfeld, with reference to

the deaths of US soldiers, declared that “freedom is a gift, selflessly purchased by the very best

and brightest among us” (Ferguson 2007: 46). These words echoed with those of former

President George W Bush who, at the outset of the war on Iraq, stated that the US objective was

“to bring freedom to others” (Ferguson 2007: 39). And they also persist beyond the war in Iraq

(which was Ferguson’s focus) to ‘Operation Enduring Freedom’ in Afghanistan. In his final

presidential debate of 2004, for example, President Bush stated that: “I believe that God wants

everybody to be free. That’s what I believe. And that’s part of my foreign policy. In Afghanistan,

I believe that the freedom there is a gift from the Almighty.”16

These tropes have persisted

beyond the Bush administration. On the fifth anniversary of the invasion of Iraq, then Senator

Hillary Clinton alluded to the US’s gift to that country: “We have given them the precious gift of

freedom and it is up to them to decide whether or not they will use it.”17

While President Barak

Obama concluded his presidential inauguration in 2009 invoking the gift in a general statement

on US foreign policy: “Let it be said by our children’s children that when we were tested we

refused to let this journey end, that we did not turn back nor did we falter; and with eyes fixed on

the horizon and God’s grace upon us, we carried forth that great gift of freedom and delivered it

safely to future generations.”18

The ‘gift of freedom’ has thus been a pervasive narrative in the ‘war on terror,’’ although

as Mimi Thi Nguyen reminds us, this narrative underpins liberal wars more generally. Indeed,

she argues that “the gift of freedom is not simply a ruse for liberal war but its core proposition”

(Nguyen 2012: xii). In each of their works, Nguyen and Ferguson attend to the rhetoric of the

gift to underscore how war is presented in humane, generous, and philanthropic narratives that

invariably conceal the brutal, often lethal, relations of self-interest, indebtedness and domination

20

through which wars are waged. This paradoxical duality of generous self-interest is embedded in

the gift, which is not as sanguine as is usually assumed, but constituted by and constitutive of

violent social and political relations. For while gift giving is often presented as an altruistic act, it

is, as Marcel Mauss emphasized in his foundational book, The Gift (1954), always already bound

up in the self-interests of the giver (Ferguson 2007: 42). Gift-giving entails an obligation or at

least an expectation to reciprocate: to submit a counter-gift. This creates an ongoing cycle of

reciprocity, or a “dual truth,” that binds giver and received through debt, obligation, and

expectation (Bourdieu, 1997). As Nguyen contends, “there is no gift without debt—which is to

say, no gift without a claim on another’s existence” (Nguyen 2012: 18). The obligation is not on

the giver—who makes payment out of generosity—but on the receiver, who is obliged to the

giver for the charity that has been bestowed.

The gift is thus always ambiguous: not freely given, but structured in terms of

indebtedness and of subjugation. As feminist scholars have argued, the relationships that are

constituted are gendered: the receiver is emasculated, and hence delegitimized, by being made

subservient to the giver (Ferguson 2007: 45, 48). But if the gift emasculates, it is also an

articulation of an imperial moral and political economy, past and present. As Ferguson notes:

“From the gifts given by European explorers and colonists to native peoples, to the gifts

of civilization brought across the planet through colonialism and imperialism, to the gift

of economic development through industrialization and free trade […] These presents

were freely given, and sometimes freely received, but they often built relationships that

were lethal to the recipients” (Ferguson 2007: 50).

The “imperial remains” of the gift, argues Nguyen, continue to haunt into the present. Whereas

colonialism operated through tyranny and dependence, liberalism extends indebtedness in that

the promise of what is to be given (sovereignty, freedom, virtue) is “endlessly” deferred (Nguyen

2012: 3, 9). It is in the name of these promises that violence is enacted as “liberal empire acts as

an arbiter for all humanity” (Nguyen 2012: 4; emphasis in the original). The very duality of the

gift—the violence that is structured through hope and generosity—is what makes it at once both

so seductive and repellant (Nguyen 2012: 4).

21

As with the gift of freedom, so too with military payments: presented as an expression of

sympathy and compassion, the payments are always already bound up in the self-interests of the

giver, who is building lethal relationships of indebtedness and obligation. This characterization

resonates with Sherene Razack’s critique of the ways that the ‘war on terror’ is constituted

through power relations that cast chivalric missions of “white knights” rescuing “dark threats”

(Razack, 2004). Or, as Vivienne Jabri contends, how narratives of “intervener as protector/savior

and the subject population as protected/saved” are typical of wars with a “reconstructive

imperative” (Jabri 2010: 120). While presented in slightly different terms, Razack and Jabri both

usefully direct attention to the constitution of subjectivities through a rhetoric of benevolence. To

cite Jabri again: interveners are constituted as those with “the will and capacity to protect,” while

the saved are cast as the “subject, devoid of agency in their own right, incapable of self-

protection, victim populations rendered vulnerable through their very construction as victims”

(Jabri 2010: 120). As with the gift, the consent and the gratitude of the receivers is never

questioned; the beneficence of the giver is always presumed (Thomas, 1991).

The humanitarian, or ‘gift-giving’ impulse through which compensation is structured

speaks to how it “functions to reproduce and maintain the generic biopolitical divide between

development and underdevelopment” (Duffield 2010: 66; emphasis in the original). The ‘gift’ of

military payments are thus, like the broader ‘war on terror’ in which they are being deployed, not

about gifting ‘freedom,’ but containing and managing insecurity, in the interests of the west and

western troops (Duffield 2007: viii). Indeed, as Ferguson bluntly states, “Freedom, as a concept,

cannot corporeally be given, or earned, or even measured” (Ferguson 2007: 43). Empowerment

cannot be bestowed. While military payments may provide relief in dire circumstances, it

obscures the very source of pain which has made it necessary in the first place. Nor does it hold

out the prospect of an end to violence; indeed, as I have sought to show, it may help legitimate

continued violence, palliated by the veneer of humanitarianism.

To draw out parallels between military payments and the gift highlights these

complicated perspectives, but also attends to the ways that the disbursement of money by the

military is not simply a calculative practice that dehumanizes bodies by rendering them abstract

22

and calculable—although this is one effect, a point made multiple times by victims as they

questioned why they were being treated as no more than animals. But monetary payments are

also constitutive of a moral economy structured and legitimized through social relations of affect,

value and indebtedness. The accounting for life is also productive in that it constitutes victims as

subject to an imperial reckoning that makes them indebted to the very militaries that have caused

their injuries. Drawing upon multiple frameworks of analysis—of governmentality and the gift—

helps to underscore these contradictions. Social and political phenomena are complex and

multiple—and not easily reconcilable to one particular analytic frame. This is certainly the case

when dealing with a complicated geopolitical practice, with historical undertones but being

renewed in the present in different ways, which is also is entrenched in violence, pain and

suffering. Above all, however, in this analysis I have sought to foreground the ways that military

payments can, and have been, used to sidestep any questions of soldier accountability for civilian

injury or death. Legality liability is disallowed. In this way, imperial relations of domination and

dependence are not only perpetuated but reinforced.

V: CONCLUSIONS

As the ‘war on terror’ continues to expand well beyond Iraq and Afghanistan, so too have

military payments proliferated. Although their scope is unknown, there have been reports that the

US has made payments after drone strikes in Pakistan and Yemen (The Express Tribune, 2011;

Isikoff, 2014), and perhaps also in Somalia (Currier, 2013). As of 2014, the US Consolidated

Appropriations Act, for the first time enshrined in law ‘ex-gratia’ compensation for civilians

injured or killed in combat by US forces. Section 8127, however, makes it clear that payment

“shall not be considered an admission or acknowledgement of any legal obligation to

compensate for any damage, personal injury or death” (130).19

Military payments for civilian

harm are thus indeed becoming an integral component of contemporary warfare, even as COIN

appears to have fallen out of favour. While this is presented as a way of making war more

humane, as I have sought to illustrate in this paper, military payments raise troubling issues with

respect to contemporary warfare. Money can provide needed short-term relief to victims and

their families, but it can also be used to reinforce the principle of ‘collateral damage,’ and to

23

render death and injury more palatable, albeit more expensive. Rather than subjecting war’s

violence to debate, scrutiny and accountability, money deflects the highly political questions

about the place of injury and death in war and accepts that they are an inevitable outcome of war.

It continues to render some populations surplus, while leaving no space for considering the

enforceable rights of victims.

So, then, where to go with this critique? If war persists and harm continues, as is likely to

be the case, reorienting military payments away from an accounting for life towards

accountability for death might at least help to renegotiate the terms under which war can be

enacted. Military payments could be used, not as a mechanism to deflect liability, but to make

soldiers more likely to be held responsible for the harm that they cause, whether to civilians or

combatants. The point would not be to individualize responsibility onto soldiers—although this

would in some cases be necessary—but to hold militaries as institutions accountable. Embedding

a kind of restorative justice in war could help to disrupt the differential valuation of life that is

inherent in warfare and which renders only some lives grievable (Butler, 2009). This would

require both alternative ways of accounting for and being accountable to violence in war, by

soldiers, militaries, and the publics who support them. It would necessitate negotiation,

mediation and compromise, so as to ensure that compensation is not projected as an act of

compassion or generosity but a form of redress that is attentive to victim needs. The appeal to

third-party mediators could prove especially useful as a way to de-emphasize the military’s

power to wield discretionary decision-making and adjudicate value over harm that it has itself

inflicted. The long-term needs of victims who suffer the “slow violence” (Nixon, 2011) of war

could also be factored into these calculations. The effect might be to make war much more

costly—so much so that it could have a deterrent effect. While this would surely not lead to an

end to war, or erase the devastating damage caused by war, or even avoid the dehumanization

that occurs when lives are quantified monetarily, at the very least civilian violence would not be

met with impunity. And war could no longer be projected as a gift that is benevolently bestowed.

24

ACKNOWLEDGEMENTS

The author would like to thank the three anonymous readers whose generous and astute

comments have helped to significantly restructure and focus this paper. The associate editors also

provided helpful and insightful feedback, especially Marieke de Goede. It has not been possible

to address every issue that was raised, but I hope you will see how your comments have

improved this paper. Funding for this research was made possible by a grant through the

Canadian Social Sciences and Humanities Research Council. I am also grateful to the American

Civil Liberties Union for their work in making publically available the databases on civilian

compensation.

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1 All monetary amounts are in US dollars, unless otherwise indicated.

2 The documents are available on the ACLU website: http://www.aclu.org/civiliancasualties.

3 See 10 USC § 2734 http://www.law.cornell.edu/uscode/text/10/2734.

29

4 CERP funds are not new, but have a special history in Iraq where monies confiscated from Saddam

Hussein and his government and then used to fund a wide range of economic projects (see Gilbert, 2015).

5 There are some differences across payments in Afghanistan and Iraq in that Iraqi payments are made in

US dollars, while in Afghanistan payments are in Afghanis, which are subject to currency fluctuation.

6 See Army Regulation 27-20 www.apd.army.mil/pdffiles/r27_20.pdf.

7 The forms of mediation can vary across community: in Iraq it is the courts, whereas among the Pashtun,

a meeting of elders (a jirga) undertakes the dispute resolution. Moreover, the valuations may differ

between rural and urban locations, and according to status and/or gender. Important critiques have been

raised about this can lead to the devaluation of life (eg Osanloo, 2011). This is crucial to acknowledge,

even as it does not deflect from the broader point that I am making regarding the different procedures that

are instituted by religious tradition versus the military. 8 Witt’s (2008) analogy to lawyers and insurers is made in his abstract to this paper, available on the

Social Science Research Network: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1096587.

9 Tracy was a military judge advocate in Iraq from January 2002 to April 2005, where he was responsible

for adjudicating claims. He then became an advocate at the Campaign for Innocent Victims in Conflict,

and a visiting scholar at the Carr Center for Human Rights Policy at the Harvard Kennedy School. His

2009 testimony before the US Senate Committee on Appropriations Subcommittee on State and Foreign

Relations is available here: www.gpo.gov/fdsys/pkg/CHRG.../html/CHRG-111shrg49742.htm 10

For The Guardian files see:

https://docs.google.com/spreadsheet/ccc?key=0AonYZs4MzlZbdE9hbTh3LTBVVExickZKMnBvVENI

OWc#gid=0). 11

Ruzicka died as the result of a roadside bomb in Iraq in 2005. 12 See the regulations on the NATO website: http://www.nato.int/cps/en/SID-9D9D8832-

42250361/natolive/official_texts_65114.htm.

13

United Nations Security Council, Report of the Secretary-General on the protection of civilians in

armed conflict, 11 November, 2010. Available at:

http://responsibilitytoprotect.org/SG%20report%20POC.pdf

14

Available at: https://house.resource.org/110/org.c-span.201290-1.1.pdf. Page 111.

15 I am grateful to one of the anonymous reviewers for this point.

16

President Bush’s 2004 speech in the presidential debate is here:

http://www.democracynow.org/2004/10/20/god_the_presidency_an_in_depth.

17

Senator Hillary Clinton’s speech is available here: http://www.democracynow.org/2008/3/20/headlines.

30

18 Obama’s speech is available on the White House web pages here:

http://www.whitehouse.gov/blog/inaugural-address.

19

The US Consolidated Appropriations Act, 2014 is available here: https://www.congress.gov/bill/113th-

congress/house-bill/3547.