By Orly HalpernNew Standard
July 14, 2004
Allawi Kath em Abed sat waiting patiently in the Iraqi assistance center in the capital last Saturday, confident things would be solved soon. He had come from the town of Abu Ghraib to Baghdad with a death certificate, a list of stolen property, and an oral promise of compensation from 'Colonel Ryan.'
On May 30, US forces surrounded and raided the duplex Abed shares with his brother's family, the 55 year-old man said. "They killed my nephew, took $5,000 and a half kilo of gold jewelry from my house and detained four of our sons," said Abed whose pressed white floor-length tunic and head cloth gave him a noble air. "We want the compensation for his wife and children and I want my property back."
But the Iraqi clerk behind the desk told him oral promises do not count. "He told me, 'You must go to the [US Military] and the Americans must give you a written admission that they killed him and that they stole the money and jewelry,'" Abed said. "I don't think they will give me a paper. They will only confess orally." What Abed did not know is that, even if he were to get a paper admitting wrongful death, he could not press charges and his recognized legal right to compensation is severely limited.
Order 17: Iraq's Catch-22
Like thousands of other Iraqis, Abed has entered into the foggy world of legal relations regarding accountability and responsibility of US troops to Iraqi civilians. "Even if it were an extrajudicial [execution], Iraqis cannot press charges against a soldier," explained Kamal Hamdun Mula'awlo, chairman of the Iraqi Bar Association. "They can only seek compensation."
According to a paradoxical rule that sounds like a classic Catch-22, files containing charges against US troops, when opened in Iraqi courts, are automatically and immediately closed. "An Iraqi examining judge will open the file for the case and then write down 'Case closed due to resolution #17'," said Mohammed Al-Musawi, a lawyer and deputy chairman of the Iraqi Human Rights Association (IHRA). Originally decreed by occupation chief Paul Bremer and renewed just before his departure late last month, a ruling known as Order 17 prevents Iraqis from pressing charges against foreign troops in Iraq.
Nevertheless, some Iraqi lawyers do file charges against the military in Iraqi courts, mainly as a way of making compensation claims to the Army appear more official, said Al-Musawi. He added that without at least going through the formality of filing with an Iraqi court, the chances of obtaining compensation are extremely minimal. The Iraqi Human Rights Association has handled 647 cases of wrongful death by foreign forces, 128 of which Iraqis have filed since President Bush declared the end of "major combat" on May 1, 2003. "There are many more that did not come to us," reported Al-Musawi.
The US says it agrees to pay compensation when negligence is proven, but does not make results of investigations public."The main problem with compensation is the law stating that there is no compensation for combat situations," said Paola Gasparoli, a former head of Occupation Watch who spent months trying to obtain compensation for individual cases. Occupation Watch is a nongovernmental monitoring organization backed by mostly western peace and social justice groups.
That law is the Foreign Claims Act, an American ruling applied in Iraq to limit the scope of compensation available for claims such as wrongful death. The act states if a death can be termed combat-related, the United States has no obligation to pay. This decree precludes the right to all compensation for losses incurred during the invasion and until May 1, 2003, as well as countless other situations since then in which US forces have killed or harmed Iraqi civilians not directly involved in fighting.
The problem is exacerbated, Gasparoli believes, by the fact that US military units keep their rules of engagement secret, "so you can never know if they were involved in combat or not." Gasparoli said the real power to define an incident lies in the hands of the very military being accused of misconduct. "In essence, they can deny everything because we don't ever know when there is a 'combat' situation." Many cases of death and injury of Iraqi civilians occur during tense incidents when soldiers are attacked or are afraid of being attacked. Often, convoys travel over improvised explosive devices, frightening and many times injuring or killing soldiers whose comrades react by spraying the area with small arms fire.
Iraqi lawyers are frustrated. "I have been a lawyer for 42 years but now I can't use the law to get compensation for my clients," said Khaled Al-Duleimi, a distinguished looking advocate wearing a three-piece suit in the sweltering heat. Other deaths of Iraqi noncombatants occur at night near checkpoints when fearful soldiers open fire at approaching cars containing unarmed passengers. The military routinely uses the Foreign Claims Act to deny civilians harmed in such incidents any right to compensation. "The [military] can always say that they were under attack and in this way there is no [legal] protection for civilians," explained Gasparoli.
The Foreign Claims Act prevents Abed and his family from a right to compensation. "They surrounded both our houses," Abed recounts. It was 2 a.m. and we were sleeping. First they broke into my brother's house, and you know how they enter," he said implying a swift and terrifying raid. "When they went out we went into Qassem's room and he was dead," said the uncle of his 30 year-old nephew. "His body was riddled with bullets. His face, his shoulder, and his chest," Abed recalled, passing his hand over the same areas of his own body. In such cases, the military may give what is called "sympathy money" without claiming any responsibility for the act. "By law, this does not prevent a person from continuing with the case," Gasparoli said. "But many times the officer will add a handwritten note to the money saying the case is now closed."
The maximum sympathy payout for wrongful death is $2,500, according to lists kept by the Iraqi Assistance Center, a liaison office that helps Iraqis manage affairs that involve the occupying militaries. That amount of sympathy would run out after buying food for a family of six for two years, but according to the US military, it is meant as condolence and not compensation. "But if six people die, that does not mean they pay the full amount" for each, said Marla Ruzicka, the founder and head of the Campaign for Innocent Victims in Conflict (CIVIC), a US-based nonprofit organization tracking the effects of the invasion and occupation on Iraqi civilians. CIVIC also works to obtain compensation from the military for wrongful death situations.
Ruzicka said the actual amount paid is determined by factors including how much is available in the offending unit's compensation fund at the time, as well as the discretion of the military officer in charge of evaluating the case.
Suad Muhammed Ali regularly cleans the urine and bowel movements of her 17 year-old son, Omar, since US soldiers shot him in the spine last January, paralyzing from the waist down. Omar was sitting in the back seat of a car while his friends went into a shop to buy food, his mother said. Soldiers reacted to an explosion by firing randomly in the area. A bullet went through a car door and hit Omar. Suad Muhammed Ali spent 20,000 dinars -- about $13 USD, a very significant amount of money in Iraq today -- on translation of medical documents detailing the tragic results of the incident. Last Saturday she went for the fifth time to the Mansour district Iraqi Assistance Center in the capital, hoping to see her son sent abroad for medical care. "He is psychologically damaged," Ali says. "He did not finish school and he yells, "I want to walk on my legs.'"
Ali said her son received no paperwork from soldiers on the scene. Moreover, if troops involved in the shooting made no record of their random gunfire, Omar's chances of receiving compensation are minimal. Further still, if the incident was classified as a combat situation, those chances drop to essentially none. "Compensation cases are difficult to follow up because the Army does not want to pursue them," said Greg Rollins, a volunteer with the Christian Peacemaker Teams, a faith-based grassroots organization advocating for Iraqi victims of violence and human rights abuses. "In many cases they don't believe the Iraqis, and in some cases they may be right. So, they ask them to bring another witness or a note from a doctor. "I talked to a woman today whose son was shot and they said to her they wanted another witness, new evidence and a corroborating statement from a police officer," Rollins added.
Shabhaa Zaydun works at the Iraqi Assistance Center at the National Conference Center in Baghdad, the main liaison hub for Iraqis seeking help with occupation-related problems. There are nine similar centers around the capital, one in each district, and others in provinces throughout the country. Zaydun, a young Iraqi woman, spends her days helping Iraqis fill out compensation applications. On average she helps over 2,000 people a week, she said. "Only 30 to 40 percent get compensation," Zaydun estimates. "Sometimes people come to me and say, 'Why didn't I get compensation? My son was killed by the Americans, I will kill myself,'" Zaydun recounted. "They get very angry at the Americans."
Al-Musawi, the human rights lawyer, said that upon receiving compensation, people are given a paper to sign stating they give up their right to make further claims. In two cases Al-Musawi is familiar with, people refused to sign and still received their money. "Most families sign," he said, afraid they will get nothing unless they comply. Even sympathy money requires paperwork, part of which is supposed to be produced by the perpetrator of the killing in question. "When an incident occurs... the soldiers on the scene fill out the form," said Captain Mitchell Zornes, press officer for the 1st Cavalry Division. "It's like a police officer giving a ticket. He doesn't decide how much is paid out and if it will be paid out. He just does the paperwork."
In reality this seems to rarely happen. Abed and his brother's family say they never received a form during the house raid, although he says they did receive an oral admission later. "We went to the [military base in Abu Ghraib] on the first day when the body was still in the house," said Abed. "They said, 'We'll compensate you and we're very sorry.'" Cpt. Zornes acknowledged that soldiers do not always provide the necessary paperwork. "There are cases where the Iraqis come to us and we do an investigation to see if it has occurred, but that has to go up to a [higher] level."
Iraqi lawyers complain that there is no one set of rules, and the rules change from center to center, making their work more difficult. According to Allan Slater, a 68-year old volunteer with the Christian Peacemaker Teams, wrongful death "receipts" are the biggest problem, the difficulty of obtaining them explained by the fact that they "have never been issued." Slater and his team members have pursued over 70 claims cases since last year and have run into numerous problems following paper trails, beginning with the lack of an on-scene receipt in every single case. Even when victims made claims to the military, according to Slater, the claimants never received a written acknowledgement. "The claim was written on a piece of paper -- all in English -- and handed to the officer and that was the end of that," Slater said.
Beyond the legal challenges to receiving compensation, there are physical and financial obstacles. Often Iraqis must travel repeatedly to the claim centers until they receive an answer. Slater said he went with one family eleven times to make a claim. "I have lost all trust in this process," he said after office hours ran up right before their turn was called.
The location of the Civil Military Operations Centers, where claims must be filed, also proves challenging for Iraqis. In most cases they are inside a military base. "For many families this is very difficult to enter," said Gasparoli. When civilians do manage to enter a base to lodge a complaint, they are faced with armed troops as clerks and judges. "Also from a cultural point of view there is no consideration," said Gasparoli. "There are no women soldiers to search women entering [assistance] offices."
In the case of Abed, the clerk at the Center told him that his nephew's wife must present the application to the Center herself. For Iraqis who live according to conservative traditions, that circumstance is a non-starter. "She is a woman, she cannot go," he said.
Abed left the center angry that the compensation promise was not kept. In traditional Arab tribal culture, when one kills someone else by mistake, the killer's family is expected to formally apologize and give compensation or else it will mean a stain on the pride of the deceased's tribe. "We are very upset," said Abed afterwards. "This is hurting our pride. They are crossing the seas and oceans to kill our sons. This is not democracy and freedom. They brought us death and destruction. They are looters, thieves." Abed added resolutely: "If we don't get compensation, we will fight."
More Information on the Humanitarian Crisis