18 Oct International Organizations Accountability Symposium: Compensation Practices from the Field– What Can the Practices of National Militaries teach IOs?
In this final contribution to the symposium, I will discuss compensation practices by national militaries and their link to accountability. It is perhaps not surprising that creative remedial responses to claims by individuals and other third parties against IOs have not emerged in the context of mass torts. The stakes are high, and there is a tendency to reign in precedent-setting gestures of good will. Although IOs have tended to make apologies rather than to provide compensation, it is important to note that apologies are a secondary form of remedy known as ‘satisfaction’ which follows the obligation to make full restitution.
One of the challenges for international organizations is to determine what remedies are appropriate in cross-cultural contexts. My contribution to the International Organizations Law Review discusses the fact that there are many parallels between the issues faced by the UN in sending peacekeepers to missions, and those that states confront in deploying their national troops to conflict zones abroad. The similarities include immunity from suit, exceptions for operational necessity or combat, and compensation schemes that provide for ex gratia payments..
I also show, however, that a number of member states whose militaries regularly participate in UN peacebuilding exercises as Troop Contributing Countries (TCCs) have made advances with regards to claims processing, transparency of process, local outreach, and payment schemes. I argue that these provide useful models for IOs such as the UN that are subject to claims.
It is well known that in the 1990s, the UN developed a policy to compensate third parties for injury, illness, or death that occurred in peacekeeping operations. General Assembly Resolution 52/247 of July 1998 sets out the prevailing scheme for compensation, including financial and temporal limitations. This resolution permits claims for up to 50,000 USD for injury or death, if filed within six months “from the time the damage, injury or loss was sustained, or from the time it was dis-covered by the claimant”. The resolution also notes the amount can be adjusted according to local compensation standards. However the UN’s policies have limitations. For example, no compensation is paid for mental anguish or pain and suffering, only economic loss, such as loss of earnings. In addition, harms arising out of ‘operational necessity’ are excluded—a concept developed specifically in connection with UN peacekeeping operations. As Carla Ferstman noted in her contribution to this symposium, the UN has taken the position that these policies on compensation are lex specialis, and not guided by general principles applicable in other areas of law.
This is where the practices of national militaries come in. Some such systems are highly formalised, like the US army’s approach to claims under the Federal Claims Act while others are more ad hoc. Many countries (including developing countries), have deeply entrenched practices of giving payments to the family of victims as a sign of compassion and respect.
A highly publicised incident in 2016 illustrates this practice. A six year old boy was killed in Cameroon by the US Ambassador to the UN’s convoy in 2016. As villagers gathered to watch the American officials pass by, the boy was distracted by a helicopter that passed by overhead, and ran into the path of the last SUV in the convoy. He was killed. Ambassador Samantha Power was informed of the incident after she reached her destination, and returned to give her condolences to the boy’s family a few days after. In addition, the US government paid his family approximately 1,500 USD (a mil-lion Central African francs) along with two cows, flour, rice, sugar, salt, onions, soap, and oil. A State Department Spokesman described it as a “compensation package commensurate with local custom, as well as the needs of the family and village”. It was paid to recognise a harm and to make a gesture of reconciliation.
Countries of Islamic tradition engage in giving what is known as ‘blood money’ to families of victims. Although this type of payment is typically private, rather than state funded, giving compensation for relevant losses is recognised across a wide variety of cultures. The practice of giving amends is assessed in an excellent article by Lesley Wexler and Jennifer K. Robbennolt.
While it might be assumed that the primary reason nations pay compensation is to fulfil a legal obligation, the most influential reason nations compensate civilian casualties is for strategic advantage. Even where legal obligations are not triggered, national militaries regularly make small but symbolic payments to assist civilians who have lost loved ones in the battle for hearts and minds. The monetization of war has not been uncontroversial: critics note that it devalues human lives. However, in assessing the immunity – accountability axis, I believe IOs should consider expanding their practice of ex gratia payments and other compensation schemes, in order to build trust with host state populations. It would add to their legitimacy and better demonstrate peacekeepers are serving their interests.