Representative Jacobs, Malinowski, Crow, & Senators Warren, Durbin, & Leahy Urge DoD to Reinvestigate Cases of Civilian Harm and Casualties

Congresswoman Sara Jacobs (D-CA) joined Representative Tom Malinowski (D-NJ), Representative Jason Crow (D-CO), Senator Elizabeth Warren (D-MA), Senator Dick Durbin (D-IL), and Senator Patrick Leahy (D-RI) in sending a bicameral letter to U.S. Secretary of Defense Lloyd Austin urging the Department of Defense (DoD) to reinvestigate past cases of civilian harm from conflict.

Following extensive reporting on civilian casualties by recent U.S. operations, the DoD recently released the Civilian Harm Mitigation and Response Action Plan, which works to prevent and mitigate civilian harm caused by U.S. operations. Recent media reports claim the DoD will not reinvestigate past cases despite some being erroneously dismissed. Additionally, new evidence from civil society organizations and media reporting will now be considered under the DoD’s new plan to determine U.S. involvement in civilian harm cases. This letter urges the DoD to reinvestigate these cases with the additional reporting to ensure justice and for civilian survivors and victims’ families.

Read the letter below and here.

Dear Secretary Austin:

As Chairs of the Protection of Civilians in Conflict Caucus and Senators concerned with civilian harm policies, we welcome the recently released Civilian Harm Mitigation and Response Action Plan (CHMR-AP), an unprecedented initiative to improve preventing and mitigating civilian harm caused by U.S. operations. However, we are concerned by recent media reports suggesting that the Department of Defense (DoD) does not plan to reinvestigate past cases, including those that were potentially erroneously dismissed, as part of this reform process.

Looking back at past cases of civilian harm is critical to ensuring accountability and learning from past mistakes. Civil society and media reporting, as well as U.S. government-commissioned research, have presented credible evidence that many cases of civilian harm have been erroneously dismissed due to faulty reviews of evidence.[i] This is one reason why, as we understand it, the new policy will incorporate information from credible external sources when reviewing cases of civilian harm.

According to credible evidence from civil society organizations and media reporting - that will now be considered along with DoD data - there may be civilian survivors and victims’ families still waiting for recognition of the harm they experienced. Their cases should now be reviewed in light of the new CHMR-AP criteria.  Here are three examples among many:

• The families of 12-year-old Amer Ali Mohammad Al Saqra, killed in a U.S. airstrike on March 5, 2018, in Hadramawt, Yemen, and Amer’s 17-year-old cousin Hassan Saleh Hassan Al Huraidan, who was wounded in the same strike. Human rights organizations compiled and provided to the U.S. military additional evidence pointing to civilian harm in this strike, yet the DoD did not investigate nor provide a rationale for why these families were potentially legitimate targets.[ii]

• The 19 children who lost their fathers in a March 18, 2019 U.S. airstrike on a truck moving towards Mogadishu, Somalia. Three men – Abdiqadir Nur Ibrahim, Ibrahim Mohamed Hirey, and Mahad Nur Ibrahim - were killed in the strike. AFRICOM admitted to the strike, but insisted that the victims were al-Shabaab members despite an Amnesty International investigation presenting evidence that that the men were farmers who frequently drove that route.[iii]
• The Al Ameri family in Yemen, who have lost 26 loved ones in four strikes and a raid, among them six women and eight children as young as three-months old, all under the age of 15. These include a December 12, 2013 strike[iv] that struck a wedding convoy in al-Baydah, killing seven members of the Al Ameri family who left behind 43 children without fathers, and provoking condemnation from UN Special Rapporteurs.[v] CENTCOM denied these reported civilian casualties, despite on-the-ground investigations from human rights organizations providing credible evidence identifying the victims as civilians.[vi]

Some cases like this were dismissed out of hand under previous DoD leadership and others were dismissed due to lack of DoD-specific evidence. They should be now reviewed. In looking back at past cases, we hope the DoD will also review eligibility for amends. The CHMR-AP puts a greater emphasis on condolence payments and the public acknowledgement of harm for cases moving forward. However, there are still many past cases in which the DoD confirmed credible instances of civilian harm, yet families did not receive any apology, explanation, or monetary amends, such as the use of ex gratia payments as authorized by Congress. These include, for example:

• Rafi Al Iraqi, who on January 7, 2017, lost four family members in a U.S.-led Coalition airstrike near Mosul, Iraq that also seriously injured his son Mohammed. The DoD assessed this incident as credible in a September 9, 2020 press release, yet denied Mr. Al Iraqi’s request for a condolence payment in 2021.[vii]
• Jassim Mohammad Ali, who lost eight grandchildren, including a two-day-old infant, in a November 17, 2016 U.S.-led Coalition airstrike in Mosul, Iraq. The DoD assessed the incident as credible in an April 30, 2017 press release, but denied the family’s request for a condolence payment in 2021.[viii]
• The family of Saleh Al Qaisi, who was killed in a U.S. airstrike on January 21, 2019, in Al Bayda, Yemen. Mr. Al Qaisi was the primary breadwinner for his family and left behind six children and his wife. Despite confirming his death as a credible civilian casualty incident, the U.S. military said it would not provide any condolence payments to the family.[ix]

The DoD is authorized by Congress to use $3 million annually to make ex gratia payments to civilian victims and survivors of U.S. operations, yet DoD reported zero ex gratia payments in 2020[x] and only one in 2021[xi] – despite the many cases where the Department has publicly confirmed civilian casualties.

We are encouraged by the CHMR-AP, and we agree with Secretary Austin that recognizing civilian harm is a moral and strategic imperative. So, too, is reckoning with past harms. We respectfully request that the DoD change its posture on “looking back” at past cases, and inform Congress of its plans to do so. We request a briefing on these issues by December XX, 2022. We look forward to hearing from you.

Sincerely,

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