Form and Substance in the Law of Counterinsurgency Damages

Abstract

On May 29, 2006, a Heavy Expanded Mobility Tactical Truck in an American convoy lost its brakes on the steep mountain road leading down from Bagram Air Force Base into Kabul. The twenty-ton armored truck crashed into the city, careening off of cars, trucks, and buildings. By the time the truck came to rest, it had injured dozens of people. At least one person was killed. As the dust settled, an angry crowd gathered at the scene. A riot ensued and shots rang out. In the crossfire, bullets that the Pentagon later traced to American weapons killed at least six young Afghan men. One of the victims left behind a one-and-a-half-year-old son and a pregnant widow. According to the dead man’s father, he had been delivering spare parts for the family auto repair shop. Another victim was a thirteen-year-old boy. He had been selling pizzas on the street. Another was a taxi driver who happened to have a fare at the wrong place at the wrong time. Others had been returning home from work and school. War causes collateral damage, and such harms have rarely been more salient than in the armed conflicts of the twenty-first century— armed conflicts that take place cheek-by-jowl with civilians. What makes the truck crash and its aftermath on the outskirts of Kabul striking is that it became an occasion for the deployment of an American tactic that has taken on increased significance in the era of war among civilians. The families of the six men killed by U.S. forces in Kabul in May 2006 were paid damages for their losses under an obscure piece of legislation from the Second World War known as the Foreign Claims Act. Between 2001 and the spring of 2007, the United States paid about $32 million in legal claims to civilians injured or killed in Afghanistan and Iraq. Trumpeted in the army’s widely praised new counterinsurgency manual as an important tool in asymmetric conflicts, American-style damages payments 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. Damages payments, as one of the authors of the counterinsurgency manual puts it, are among the latest non-lethal weapons systems in the American military.