Designing Amends for Lawful Civilian Casualties

Abstract

Academic scholars, U.S. military commanders, and advocacy groups, and former-President Obama largely agreed that militaries should offer compensation after the lawful killing of civilians. But this understanding is undertheorized and potentially up for debate under President Trump. We suggest this compensation should be reconceptualized as a form of amends to better reflect the needs of affected civilians and to provide a mechanism for those engaged in armed conflict to address the harm they do within the limits of the law. The psychological literature offers useful insights on the elements of amends generally, as well as apologies more specifically, and how they function in domestic legal settings, but these insights have yet to be applied to the foreign conflict setting in which militaries offer amends such as condolence and solatia payments. This literature can help illuminate the reasons why amends receive such strong support as well as generate testable hypotheses about the essential elements of amends.

This Article makes three contributions to the amends literature and the policy debate about compensation for conflict. First, we identify a full range of supply-side and demand-side justifications for making amends in the lawful military harm setting. While the existing literature focuses on foreign civilian and domestic military benefits, we also explore reasons why individual military actors might benefit from amends making and the significance of addressing their moral injuries. Second, we mine the psychology literature to identify the possibilities and limitations of current condolence and solatia practices in satisfying both demand and supply-side needs for amends making. In particular, we emphasize the importance of responsibility-taking and efforts at forbearance, elements of amends that need to be strengthened. Third, we situate amends making within the context of international humanitarian law to inform the design of processes for making amends. We contend that existing compensation practices should be restructured as amends, but in a way that respects the inherent balance between the claims of humanity and the lawfulness of engaging in harmdoing inherent in this body of law.

Keywords: armed conflict, lawful harm, apology, amends, condolence payments, solatia payments

JEL Classification: K10, K33