[Senate Hearing 111-70]
[From the U.S. Government Publishing Office]
S. Hrg. 111-70
ASSISTANCE FOR CIVILIAN CASUALTIES OF WAR
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HEARING
before a
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
SPECIAL HEARING
APRIL 1, 2009--WASHINGTON, DC
__________
Printed for the use of the Committee on Appropriations
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COMMITTEE ON APPROPRIATIONS
DANIEL K. INOUYE, Hawaii, Chairman
ROBERT C. BYRD, West Virginia THAD COCHRAN, Mississippi
PATRICK J. LEAHY, Vermont CHRISTOPHER S. BOND, Missouri
TOM HARKIN, Iowa MITCH McCONNELL, Kentucky
BARBARA A. MIKULSKI, Maryland RICHARD C. SHELBY, Alabama
HERB KOHL, Wisconsin JUDD GREGG, New Hampshire
PATTY MURRAY, Washington ROBERT F. BENNETT, Utah
BYRON L. DORGAN, North Dakota KAY BAILEY HUTCHISON, Texas
DIANNE FEINSTEIN, California SAM BROWNBACK, Kansas
RICHARD J. DURBIN, Illinois LAMAR ALEXANDER, Tennessee
TIM JOHNSON, South Dakota SUSAN COLLINS, Maine
MARY L. LANDRIEU, Louisiana GEORGE V. VOINOVICH, Ohio
JACK REED, Rhode Island LISA MURKOWSKI, Alaska
FRANK R. LAUTENBERG, New Jersey
BEN NELSON, Nebraska
MARK PRYOR, Arkansas
JON TESTER, Montana
ARLEN SPECTER, Pennsylvania
Charles J. Houy, Staff Director
Bruce Evans, Minority Staff Director
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Subcommittee on State, Foreign Operations, and Related Programs
PATRICK J. LEAHY, Vermont, Chairman
DANIEL K. INOUYE, Hawaii JUDD GREGG, New Hampshire
TOM HARKIN, Iowa MITCH McCONNELL, Kentucky
BARBARA A. MIKULSKI, Maryland ROBERT F. BENNETT, Utah
RICHARD J. DURBIN, Illinois CHRISTOPHER S. BOND, Missouri
TIM JOHNSON, South Dakota SAM BROWNBACK, Kansas
MARY L. LANDRIEU, Louisiana GEORGE V. VOINOVICH, Ohio
FRANK R. LAUTENBERG, New Jersey
ARLEN SPECTER, Pennsylvania
Professional Staff
Tim Rieser
Nikole Manatt
Paul Grove (Minority)
Michele Wymer (Minority)
LaShawnda Smith (Minority)
Administrative Support
Renan Snowden
C O N T E N T S
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Page
Opening Statement of Senator Patrick J. Leahy.................... 1
Statement of Senator Frank R. Lautenberg......................... 3
Prepared Statement of Senator Daniel K. Inouye................... 4
Statement of Dirk Djikerman, Acting Assistant Administrator for
Democracy, Conflict, and Humanitarian Assistance, U.S. Agency
for International Development.................................. 5
Leahy War Victims Fund........................................... 5
Leahy Fund Examples.............................................. 6
Marla Fund....................................................... 6
Afghanistan Civilian Assistance Program.......................... 7
Prepared Statement of Dirk Dijkerman............................. 8
Statement of Ca Va Tran, President, Vietnam Assistance for the
Handicapped.................................................... 17
Prepared Statement........................................... 19
Statement of John Chromy, Vice President, External Relations,
Cooperative Housing Foundation International................... 21
Prepared Statement of........................................ 23
Statement of Erica Gaston, Afghanistan Fellow, Campaign for
Innocent Victims in Conflict................................... 25
Prepared Statement........................................... 27
Civilian Compensation and Redress: A Strategic and Moral
Imperative..................................................... 27
Civilian Suffering and Importance of Victims' Assistance......... 28
Afghan Civilian Assistance Program............................... 32
Conclusion and Recommendations................................... 36
Statement of Jonathan Tracy, Associate Director, National
Institute of Military Justice.................................. 37
Prepared Statement of........................................ 40
Additional Committee Questions................................... 46
Questions Submitted to Jonathan Tracy............................ 46
Questions Submitted by Senator Patrick J. Leahy.................. 46
ASSISTANCE FOR CIVILIAN CASUALTIES OF WAR
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WEDNESDAY, APRIL 1, 2009
U.S. Senate,
Subcommittee on State, Foreign Operations,
and Related Programs,
Committee on Appropriations,
Washington, DC.
The subcommittee met at 10:10 a.m., in room SD-138, Dirksen
Senate Office Building, Hon. Patrick J. Leahy (chairman)
presiding.
Present: Senators Leahy and Lautenberg.
opening statement of senator patrick j. leahy
Senator Leahy. Good morning. I am glad to see everyone
here.
It was 21 years ago when I visited a field hospital in the
jungle bordering Nicaragua and Honduras. Some of you in this
room have heard this story before. It was during the war
between the Contras and the Sandinistas, and it was--as often
happens in wars--the civilians who bore the brunt of the
casualties.
There was a young boy there who the medics had basically
adopted. He had no place to go. He had lost a leg from a
landmine. He had a homemade wooden crutch. They had put some
blankets over in a corner, and that is where he stayed. He had
no way of working in fields or in the jungle to gather food,
and he was just living there.
I know that I asked him questions about whether he thought
the landmine was from Contras or from Sandinistas. He didn't
know who they were. He didn't really even know that there was
another country just a few miles from where he was. But he did
know that his life was ruined because of that landmine.
Following that, I began the War Victims Fund, and it has
been totally bipartisan because shortly after one of the times
when the control of the Senate changed and Republicans were in
the majority, and Senator Mitch McConnell became chairman of
this subcommittee, he had it renamed the Patrick Leahy War
Victims Fund.
I am proud to have my name on that, but I am more proud
about what has been done with it. It responds to the fact that
unlike a century ago, when armies fought armies, and civilian
casualties were the exception, not the rule, today it is
overwhelmingly civilians who suffer the casualties.
A U.S. Institute of Peace report said the number of
civilians who have died in armed conflicts in the past couple
of decades is enormous. Nearly 200,000 civilians were killed in
Bosnia. Between 500,000 and 1 million Rwandan civilians
perished in the genocide. At least 200,000 people have died in
Darfur.
Nearly 5 million in the Democratic Republic of the Congo
(DRC). Put that in perspective. My State of Vermont has 660,000
people. The whole State. Five million have died in the DRC.
Many thousands of Iraqi and Afghan civilians have died in
recent years. These are just a few examples.
The Leahy War Victims Fund has supported programs to assist
people who are severely disabled in armed conflicts around the
world. I want to thank the United States Agency for
International Development (USAID) and all the Leahy Fund
partners of the past 20 years that have made it what it is and
for what they have done to help.
Dirk Djikerman--how badly have I mispronounced your name?
Mr. Djikerman. It works.
Senator Leahy. Dirk is the Acting Assistant Administrator
for Democracy, Conflict, and Humanitarian Assistance at the
U.S. Agency for International Development and is going to talk
about the work of the Leahy Fund and other USAID programs. He
is eminently well qualified to do that, and I thank you for
being here.
Following him will be Ca Va Tran, President of Vietnam
Assistance for the Handicapped, who will testify about the work
they have done that was supported by the Leahy Fund in Vietnam.
He is accompanied by two beneficiaries of the program. Ca, I
welcome you here. I would just say, personally, Ca is a man I
have known for all these years, and I have watched his
commitment to humanitarian efforts. I applaud you for it.
Since 9/11, the U.S. Government has established at least
three other programs to assist civilian casualties of war
complementary to the Leahy Fund. In 2002, after repeated
bombing mistakes in Afghanistan resulted in civilian
casualties, I included funding for USAID to establish a program
to provide assistance to the victims.
This program, called the Afghan Civilian Assistance
Program, helps families and communities that have suffered
losses as a result of military operations. Erica Gaston, a
fellow with the Campaign for Innocent Victims in Conflict, will
testify about her report, ``Losing the People,'' about civilian
casualties and the Afghan Civilian Assistance Program.
When the United States invaded Iraq, we knew we would need
a similar program there, especially as the civilian casualties
began to add up and anger was felt toward the United States by
the very people we were there to protect. A program was
established and inspired by a young California woman who would
rollerblade into my office to tell me and my staff why we
needed this--Marla Ruzicka, who worked so hard in Baghdad to
help focus the world's attention on the needs of innocent
victims, until she was killed in a car bombing in 2005.
This program, also administered by USAID, has helped so
many. In fact, it was officially named the Marla Ruzicka Iraqi
War Victims Fund. And John Chromy, who is the Vice President of
Cooperative Housing Foundation International, one of the Marla
Fund partners, will describe their work.
Finally, there are programs in Afghanistan and Iraq funded
by the Department of Defense to provide condolence cash
payments to the families of civilians who have been killed or
injured or whose property has been damaged or destroyed as a
result of U.S. combat operations. And these payments are
authorized by U.S. commanders in the field as an ad hoc
response to the combat exemption in the Foreign Claims Act.
We invited the Pentagon to testify today so we could hear
how their payments are complementary to and coordinated with
the other programs I have mentioned. I am sorry they declined.
I strongly support the payments they make. The increasing
outcry over civilian casualties in Afghanistan illustrates that
both the Afghan Civilian Assistance Program and condolence
payments are critical to the success of our mission.
I wish the Department of Defense was here because we want
to make sure that both the Department and USAID are working as
well as they can to mitigate the anger and resentment caused by
these mistakes.
I do appreciate that Jon Tracy, a former officer with the
Army's Judge Advocate General Corps, is here to testify.
My good friend and one of the most valuable Members of the
United States Senate, Frank Lautenberg of New Jersey, is here.
I will yield to him.
Senator Lautenberg, you wanted to say something. Please go
ahead, sir.
STATEMENT OF SENATOR FRANK R. LAUTENBERG
Senator Lautenberg. I did. And I thank you, Mr. Chairman,
and there is no surprise at the fact that you have called this
hearing to see what it is we are doing with innocent victims,
civilian victims of war.
I left this committee in 2001. I thought I was going to do
something else, but nothing pulled at my conscience more than
the fact that I left the Senate, and the year 2001 we had the
terrible calamity of 9/11. And I was so anxious to get back,
and this is the first opportunity I have had as a returning
member of this subcommittee, Mr. Chairman.
Senator Leahy. And I am glad to have you back.
Senator Lautenberg. Well, for me, we are old friends. But
also we say friends of long standing. We don't say ``old''
friends anymore.
But the fact that we work together on so many issues. And
your continued commitment of concern for those who are innocent
victims of war and terror is kind of a benchmark for all of us,
your work against landmine proliferation and insisting that we
do something about cleaning up those sites that we are aware
of.
And so, it is a pleasure to be serving here with you, and I
appreciate the opportunity to serve on this subcommittee so
that we can have a more direct impact on our international
funding priorities.
Now I am one of the few left here who served in World War
II. I served in Europe during the war. And what happened to the
civilian population was terrible. And when you look through a
gun sight and you are not quite sure what the targets that you
see are or when you are flying in an airplane. I wasn't in the
Air Force. I was in the Army, and it was then the Army-Air
Force, by the way. But you see what happens in moments of war
that leave such terrifying results.
And I commend those of you who are here representing the
different organizations and speaking out. Don't ever be quiet
because one thing we have seen, even though civilization
continues to progress electronically, communication and so
forth, the fact of the matter is so, unfortunately, do the
numbers escalate for attacks on innocent people. You heard the
chairman's statement.
When you recall what has happened in Darfur or the Congo,
it is heartbreaking. And even though America, the United States
directed the effort in Iraq, one cannot help be heartbroken
when you see a child bending over a deceased parent or a sister
or a brother. And those are things that we have to really fight
against.
And Mr. Chairman, just a note. Today's news reported that
within Iraq, we are seeing marauding groups join again in
attacks on civilian populations. And so, we have got to do
whatever we can to relieve the suffering that accompanies war.
I believe that our country, America, has to be the leader,
whether it is diplomatic, humanitarian, financial efforts to
support our allies and but also--and I retract that.
To support this mission, this humane mission that we are
discussing today. And we have got to work together to improve
the lives of those who have been hurt and to see if we can help
them resume a normal life. We want to work together to protect
our national security, but we can never leave out the
demonstration of our value for human life.
Mr. Chairman--I will not be able to stay with you, but I
look forward to our doing things in this subcommittee that are
often forgotten in the hustle and bustle of economic issues and
other things. So, I am pleased to be a part of it.
And I thank you for including me in the hearing this
morning.
Senator Leahy. Thank you very much, and it is good to have
you back.
Before you proceed, Mr. Djikerman, the subcommittee has
received a statement from Senator Inouye, the chairman of the
full committee, which will be placed in the record at this
point.
[The statement follows:]
Prepared Statement of Senator Daniel K. Inouye
Mr. Chairman, and Ranking Member Gregg, thank you for convening
today's hearing on the United States' Assistance for Civilian
Casualties of War.
As it has been stated many times before, ``war is hell.'' This is
especially true for the men, women, and children that are not in
uniform, or have trained to enter combat zones. The high cost of the
unintended consequences of war and permanent impact it has cannot be
calculated. Our Nation cares deeply about the human impacts its actions
have in the world. It is important to note that our military forces
exercise the utmost caution when they enter the field of battle, and
also provide care for those that may have been harmed. The actions our
Department of State, U.S Agency for International Development, and Non-
Governmental Organization partners provide the assistance required for
those who may have been unintentionally hurt. Their tireless and
boundless compassion helps us move forward in our struggles around the
world.
I am pleased to learn about the experiences of our witnesses as
they implement the assistance afforded by the Leahy War Victims Fund,
and their evaluations of how we may improve delivery of assistance by
the U.S. Agency of International Development. Thank you Mr. Chairman.
Senator Leahy. Assistant Administrator Djikerman, please go
ahead, sir.
STATEMENT OF DIRK DJIKERMAN, ACTING ASSISTANT
ADMINISTRATOR FOR DEMOCRACY, CONFLICT, AND
HUMANITARIAN ASSISTANCE, U.S. AGENCY FOR
INTERNATIONAL DEVELOPMENT
Mr. Djikerman. Thank you, Mr. Chairman. And thank you,
Senator.
On behalf of the Agency for International Development, I
appreciate the opportunity to testify before the subcommittee.
It has been, as you mentioned, 20 years since the creation of
the Leahy War Victims Fund, and we do have an important story
to tell.
INTRODUCTION
War and civil strife threaten the stability and the
prosperity of nations, and the death and destruction of the
civilian populations has often meant many families have lost
their breadwinner. And many men, women, and children have faced
physical injuries that have changed how they live and provide
for themselves and their families.
Through congressional vision and leadership, such as shown
by this subcommittee and yourself, Mr. Chairman, USAID is
demonstrating a strong commitment to civilian victims of war.
The Leahy War Victims Fund, the Marla Fund for Iraqi War
Victims, and the Afghanistan Civilian Assistance Program, also
referred to as ACAP, are specific USAID programs that are
working to mitigate the short- and long-term impact of conflict
on civilians.
While these programs provide direct services to those most
vulnerable to war and the accidents resulting there from, these
programs also focus on the capacity of local governments and
nongovernmental organizations (NGOs), local NGOs in particular,
to strengthen their capacity to deliver needed services and to
get to a point where they become self-sustainable.
Through these programs, USAID has also worked with our
partners to strengthen local laws, advocate for equality,
create jobs and economic opportunities, and improve the quality
and sustainability of the rehabilitation efforts.
Our partners report that more than one-quarter of 1 million
civilian men, women, and children have received direct services
over the past two decades. Millions of citizens also now have
access to healthcare, rehabilitation services, and education
through rebuilt schools, hospitals, and renovated orthopedic
clinics.
These three programs are complemented by four other USAID
activities or initiatives targeting the especially vulnerable
populations. We have the Displaced Children and Orphans Fund,
the Victims of Torture Fund, and two other funds, which address
the concerns of people with disabilities and those who require
the use of a wheelchair.
For today's hearing, I will focus my remarks on the work of
the Leahy War Victims Fund, the Marla Fund, and ACAP.
LEAHY WAR VICTIMS FUND
Since its creation in 1989, the Leahy War Victims Fund has
been the foundation of USAID efforts to respond to the needs of
civilian victims. So far, $165 million has been invested, and
more than one-quarter of 1 million civilians have received
direct assistance in over 30 different countries.
This fund, which is at $12 million in fiscal year 2008,
provides assistance to people living with disabilities,
particularly those who have sustained mobility-related injuries
from unexploded ordnance, anti-personnel landmines, and other
causes of disability, including polio and other preventable
diseases that might result from interrupted national
immunization campaigns in countries in conflict.
For the first decade, these programs were seen as a one-
time humanitarian response to the physical needs of those
civilian populations. The fund has, over the years,
strategically expanded its scope to include work with partners
to design and implement a wider range of development programs
and to establish the foundations for sustainable services.
We, at USAID, contribute to the design and the enforcement
of technical standards with other partners, like the World
Health Organization (WHO), to ensure the competency of
practitioners in the countries who provide the care. These
programs ensure that the treatment and the equipment used are
as appropriate as possible and effective, increasing the
mobility of the populations that are suffering from the
disabilities.
LEAHY FUND EXAMPLES
The Leahy Fund has had a lot of significant examples over
the past 20 years, but I would like to share three specific
ones. In sub-Saharan Africa today, using Leahy war victims
funding, the International Committee of the Red Cross (ICRC)
funds 28 small-scale rehabilitation workshops. Most of these
workshops are in remote locations, operated by one or two
people. At this point in 2008, these workshops have provided
over 10,000 orthopedic devices to people in need.
Another example is the work being done with the
International Society for Prosthetics and Orthotics. This has
led to the design and the establishment of procedures for
accrediting prosthetic and orthotic schools in the developing
world. To date, we have been able to accredit schools in
Cambodia, El Salvador, Pakistan, Sri Lanka, Tanzania, Togo, and
Vietnam, and new programs are working toward accreditation in
Colombia, Jordan, and Morocco.
And the last example I would like to highlight is an
important one that shows about the broader impact of these
programs. In 1989, prior to the development of a formal
relationship between the United States and Vietnam, the Patrick
Leahy Fund enabled the United States to start a relationship
with the Vietnamese that helped eventually lead to a
normalization of relations.
MARLA FUND
When we go fast forward a little bit, looking at some of
the lessons learned there, USAID is now also supporting the
program, as you mentioned, the Marla Fund in Iraq. The program
was established in 2003 and later renamed, I believe, in 2005.
And through that program, we have assisted both families and
communities affected by coalition military operations.
To date, USAID has received approximately $40 million for
the program, and a recent USAID audit report notes that between
2003 and 2008, more than 350,000 Iraqis have benefited directly
from this program. And the audit report notes that an
additional 1.5 million have benefited indirectly from the 630
completed projects.
And I think many of our partners here today can talk in a
lot more detail about that.
Direct medical help is also provided to individuals.
Hospitals and health clinics have been rebuilt, and supplies
have been provided. We have also provided assistance to help
war victims establish businesses, so they can support
themselves and their families.
One project that I would like to note is a bakery in Salah
ad Din. Establishing that bakery has been a joint effort
between 30 families, each of which has lost at least one member
either injured or killed during the war. With USAID assistance,
a sound business plan was developed, and now the bakery is up
and running, and it is providing the primary income for those
30 families, plus the people that they employ.
AFGHANISTAN CIVILIAN ASSISTANCE PROGRAM
When we look at Afghanistan, there, too, we have begun to
adopt something similar to the program that we have in Iraq,
and we call that the ACAP program, or the Afghan Civilian
Assistance Program. In 2008, we have $9 million budgeted for
it, and in 2010--well, we will be talking about that a little
bit later, I guess.
This is not, however, a compensation program, nor is it a
condolence payments program. It is providing medical assistance
for people who have been injured, civilians. It also provides
infrastructure for schools and clinics and administration
offices that have to be rebuilt.
If a family loses a breadwinner, ACAP can provide
vocational or business training to the surviving family
members. If the family source of income was lost due to the
loss of livestock or a fruit orchard, we can help rebuild or
replace that.
ACAP is also flexible enough to provide educational
assistance to ensure that children who have lost one or both
parents can continue to go to school. To date, the program has
benefited over 5,000 people. And in 2009, ACAP is estimated to
reach 26,000 beneficiaries directly.
CONCLUSION
Much has been said about what we can achieve with these
initiatives for civilians in conflict, and they are an
important part of how we contribute to the stabilization
efforts in these countries like Afghanistan and Iraq. They help
open doors in places like Vietnam. They build goodwill, and
they strengthen our country's relationship now and into the
future.
When people are at their most vulnerable, they often need
the most basic assistance, and these programs help. They have
had an immediate impact, and we have worked to make it a more
sustainable impact. They reflect partnerships, and they also
reflect the American values that we hold dear.
I understand a USAID partner, the World Rehabilitation
Fund, has provided the subcommittee with a short video that
describes their project in Lebanon. We have been working with
them since 2000 in an effort to create an agricultural
cooperative. And this cooperative is, again, well on its way to
financial stability.
In 2008, 77 percent of the cooperative's 200-plus family
members were making a profit, and this, again, is the primary
source of income for these people.
With ongoing support and your strong congressional
leadership, Mr. Chairman, USAID will continue to provide these
critical services and increase opportunities for civilian
victims of conflict throughout the world.
Thank you very much and look forward to your questions.
[The statement follows:]
Prepared Statement of Dirk Dijkerman
Mr. Chairman and Members of the Committee, I appreciate the
opportunity to testify before this Committee concerning assistance for
civilian victims of war by the U.S. Agency for International
Development. Twenty years after the creation of the Patrick Leahy War
Victims Fund, we have an important story to tell of changed lives,
hopeful livelihoods, and respect for the dignity of women and men who
have endured severe physical and emotional trauma.
War and civil strife continue to cause death and destruction around
the world. The consequences for civilians are devastating: families
lose their breadwinner, and men, women, and children suffer physical
injuries that dramatically changed their assumptions about how they
will live and provide for themselves and their families. The statistics
are alarming:
--In many of the world's conflict zones, 10 or more people succumb to
war-exacerbated disease and malnutrition for every combat
death.
--In times of war, entire populations may flee their homes and
communities. If they find shelter, it is often in the form of
refugee or internally displaced persons camps where access to
basic health and education is limited or non-existent.
--The World Health Organization conservatively estimates that 10
percent of a population has some sort of disability. In
conflict-affected countries, that number may be closer to 25
percent.
One direct consequence of war and conflict is the destruction of
clinics and hospitals, schools, farm land, bridges, roads, and other
critical infrastructure. With these losses, immunization campaigns are
often interrupted, malnutrition and disease exacerbated, and further
death and injuries result. A recent United Nations Assistance Mission
in Afghanistan report notes, ``In addition to fatalities as a direct
result of armed hostilities, civilians have suffered from loss of
livelihood, displacement, destruction of property, as well as
disruption of access to education, healthcare and other essential
services.''
The toll of armed conflict, it is clear, continues to rise long
after direct combatant casualties are tallied.
Through congressional vision and leadership, such as that shown by
this committee, the U.S. Government continues to demonstrate a strong
commitment to vulnerable populations, including civilian victims of
war. USAID's social services and assistance programs, along with the
Department of State's humanitarian assistance and mine clearance
activities, play an important role in reducing vulnerability and offer
targeted help to meet basic needs, reduce vulnerability, and increase
self-reliance. I will focus my remarks today on USAID's programs.
The Patrick Leahy War Victims Fund, the Marla Ruzicka Iraqi War
Victims Fund, and the Afghan Civilian Assistance Program are specific
USAID programs working to mitigate the short- and long-term impact that
conflict has on civilian victims. While the programs provide direct
services to those most in need, the capacity of local governmental and
nongovernmental service providers are strengthened to address the most
critical needs and build capacity to provide continuing services.
Through these programs, USAID works on the ground, providing direct
services to those left most vulnerable by war. In addition to critical
rehabilitation care, the programs provide support to increase economic
opportunities. They design and change the policies relating to people
with disabilities. They improve the quality of care and life for
civilian victims of war. Through these programs, our partner
organizations report that more than a quarter of a million civilian
men, women, and children have received direct services. We can easily
count the number of civilians receiving orthopedic devices, the number
of individuals now employed, and the number of houses constructed.
However, incalculable are the impacts these programs have had on
rebuilding a sense of community and hope for the future. Millions of
civilians now have access to health care, rehabilitation services, and
education through program activities that have rebuilt hospitals,
renovated orthopedic clinics, and reestablished schools.
These targeted funds have given USAID the resources to work closely
with nongovernmental organizations (NGOs) and governments to strengthen
laws, advocate for equal opportunities for persons with disabilities,
provide jobs, and improve the quality and sustainability of
rehabilitation efforts. With continued congressional support we look
forward to continuing this work.
These two programs are complemented by four other USAID initiatives
targeting especially vulnerable populations: the Displaced Children and
Orphans Fund, the Victims of Torture Fund and two funds that address
the needs of people with disabilities and those who require the use of
a wheelchair.
I would welcome the opportunity to brief the committee on the work
USAID is doing under all of our special initiatives. For today's
hearing, however, I will focus my remarks on the Patrick Leahy War
Victims Fund, the Marla Ruzicka Iraqi War Victims Fund, and the Afghan
Civilian Assistance Program.
War Victims Fund
Since its creation in 1989, the Patrick Leahy War Victims Fund has
been the foundation of USAID's efforts to respond to the needs of
civilian victims of conflict in war-affected developing countries.
Since its inception, just over $165 million have been invested and over
a quarter of a million civilians have received direct assistance in
over 30 war-affected countries. This fund, at $12 million in fiscal
year 2008, provides a dedicated source of financial and technical
assistance for people living with disabilities, particularly those who
have sustained mobility-related injuries from unexploded ordnance,
antipersonnel landmines, and other direct and indirect causes of
disability--including polio and other preventable diseases that might
result from interrupted immunization campaigns.
Initially, these programs were seen as one-time humanitarian
responses to the overwhelming physical needs of civilian populations
injured collaterally during or after conflicts. However, amputation and
polio are lifelong conditions. Even the best prostheses need to be
repaired frequently and replaced every few years. Children require two
or more devices each year as they continue to grow and mature.
As we respond most appropriately to the needs of civilian
populations, over time the fund has expanded its scope more
strategically. Programs that deliver immediate care to those in need
continue. We also work with partners to design and implement a range of
development programs that not only accommodate the changing needs of
the populations they serve, but establish the foundations in developing
countries for sustainable services. We contribute to the design and
enforcement of international standards to ensure that practitioners who
provide care to survivors are competent. The programs ensure that the
treatment and equipment used are appropriate and effective in
increasing the mobility of people with disabilities who live in
developing countries. Basing our work on international standards allows
us to measure the quality and effectiveness of health care services
being provided.
The Fund's work with the International Society for Prosthetics and
Orthotics (ISPO) has led to the design and establishment of processes
for accrediting schools in the developing world. The Fund's work with
ISPO has led to the accreditation of schools in Cambodia, El Salvador,
Pakistan, Sri Lanka, Tanzania, Togo, and Vietnam. Additional programs
will soon be endorsed by ISPO in Colombia, Jordan, and Morocco.
Individuals studying at these institutions receive a Bachelor of
Sciences degree or equivalent in prosthetics and orthotics. Each year
approximately 70 people enroll in 3 to 4-year professional programs. As
a result of direct support from USAID, 228 students from more than
forty countries have or are in the process of receiving standardized
training as rehabilitation professionals. Once trained, these
specialists work in their home countries, increasing the local human
resources capacity for service provision. This work is genuine capacity
building that has a lasting impact on this and the next generation of
practitioners.
Since 1995, the program has supported efforts to examine leading-
edge technology and enable the use of sound, state-of-the-art practices
in war-affected regions. Mobility-enhancing interventions are only as
good as the equipment, fittings, and technology behind them. Hot
climates, extended use, and scant access to maintenance can be
especially damaging to prosthetic feet and knees.
Over the last 20 years, the fund has worked with partner
organizations to test designs and production methods for prosthetic
components that enhance their quality and durability.
Initially, the fund emphasized local production and assembly of
prosthetic devices. The global economy has forced us and our partners
to adapt our approach. Now, the fund supports the purchase of
prosthetics and orthotics from countries, including the United States,
that are the leading producers in the field. In this way, the program
can better ensure that in-country workshops use sound components and
that people in developing countries received high-quality, affordable
prosthetic and orthotic devices.
At the same time, the fund continues to support and expand the
capacity of local organizations and personnel to provide services and
care for people with disabilities. Traditionally, international donors
have invested largely in regional workshops and clinics. While these
have the potential to serve many people, and handle complex cases, it
has been difficult for ministries of health to commit to their long-
term support. For this reason, we have begun to emphasize smaller-
scale, targeted support to local and community-based organizations that
provide services to survivors and people with disabilities.
In Africa, through the International Committee of the Red Cross
(ICRC), USAID provides support to more than twenty-eight small-scale
rehabilitation workshops. In most instances, these workshops are
staffed by one to two people and are located in rural, often
inaccessible, places. After training in both rehabilitation as well as
workshop management, the ICRC provides these workshops with durable
materials and mentoring on a rotating basis. This approach has
increased access to rehabilitation services to those clients who often
cannot make the journey to a provincial town center. Each year, these
projects provide orthopedic devices and services to more than 10,000
people.
The provision of prosthetics/orthotics and equipment remains an
important humanitarian goal of the Patrick Leahy War Victims Fund.
Truly meaningful and sustainable intervention though requires a
holistic approach that takes into consideration individual, family, and
community context. With this in mind, the program has broadened its
approach to increasing mobility and quality of life among victims of
conflict. Among the innovative initiatives has been the support for
social inclusion, employable skills, and the ability to advocate on
their own behalf for effective legal protections against
discrimination.
Full access to services and facilities and full community inclusion
for people with disabilities are fundamental guiding principles of the
Fund's programming. Programs support barrier-free accessibility to
schools, work, and recreation, as well as opportunities for political
engagement. Other components foster community awareness of the need for
inclusion, recognizing the inherent challenges, and the capacity of
people with disabilities to reintegrate.
Ensuring that people with disabilities are self-sufficient is a key
goal of the Patrick Leahy War Victims Fund. The ability to generate an
income and provide for oneself and one's family is an important
component. Since 2000, we have supported the World Rehabilitation
Fund's efforts to create a cooperative in Lebanon through which local
villagers market and sell products such as poultry, eggs, dried herbs,
and beeswax while learning critical life skills. The cooperative is
well on its way to financial sustainability through its creative
marketing and product lines, including the first Lebanese free-range
chicken eggs. In 2008, 77 percent of its over 200 members were making a
profit. For a majority of the members, their World Rehabilitation Fund-
supported enterprises represent their family's major source of income.
Around the globe, people with disabilities often face segregation
in the workplace. A Fund-supported initiative in Sri Lanka worked with
employers to encourage them to hire people with disabilities into
mainstream positions. Part of this work involved transforming
traditional job fairs by dedicating additional days to which reasonable
accommodations measures could be made for people with disabilities. In
one case, 48 of 100 people with disabilities who attended these job
fair days were offered positions immediately, and 33 more received
second interviews.
Meaningful social and political integration is realized when people
with disabilities have legal protections and the ability to advocate on
their own behalf. USAID's 1997 disability policy advances a clear
vision and framework for all of our efforts in the area of disability-
related issues. This is reinforced through two policy directives and
program funding to advance inclusive development practices.
USAID is the leading international agency engaged in disability
policy work in Vietnam. Among the many accolades, two national laws
have been achieved regarding disabilities and the establishment of
building design codes and construction standards to ensure access for
people with disabilities. Primarily through our partnership with
Vietnam Assistance for the Handicapped, a ``Blue Ribbon'' employment
council has been established, and we have worked with the Ministry of
Home Affairs to establish a law allowing for the establishment of local
NGOs. Notably the first organizations registered as local associations,
a stepping-stone to becoming a legal NGO, have been disabled person's
organizations.
Where possible, we promote partnership with governments, especially
ministries of health. Because many countries emerging from post-
conflict situations have tenuous governmental structures, we work
primarily through well-respected and experienced NGOs such as World
Rehabilitation Fund, Handicap International, the ICRC, ISPO, and
Vietnam Assistance for the Handicapped.
These organizations, and others, have worked with USAID to provide
more than 175,000 artificial limbs and orthoses, to create or support
201 workshops, and to train more than 1,500 people to provide
appropriate rehabilitation services to those in need. Coupled with
support provided for related interventions such as surgeries, fostering
of economic self-sufficiency and social inclusion, the fund has
provided support for services to over one-quarter of a million people
in more than thirty war-torn countries.
The impact of these programs is measured not only in terms of
beneficiaries serviced, but also, and more importantly, in terms of the
human and institutional resources that are developed and able to
continue without external support.
Marla Ruzicka Iraqi War Victims Fund
In addition to the provision of immediate on-the-ground care to
victims, today I want to emphasize that our programming is designed to
help establish sustainable rehabilitation services that can become core
components of the larger healthcare systems of developing countries.
USAID also supports programs that address the needs of war victims
in countries where war is a recent occurrence. Through a program
established by Congress in 2003 through the initiative of Senator
Patrick J. Leahy to help Iraqi civilians injured in the conflict, and
renamed the Marla Ruzicka Iraqi War Victims Fund in 2005, we have been
given the mandate to assist Iraqi civilians, families, communities, and
organizations that have been directly affected by coalition military
operations. This Fund was named in remembrance of Marla Ruzicka, a
passionate humanitarian who worked on behalf of civilian victims of war
in Iraq. On the day in 2005 when she was tragically killed, Ruzicka had
been visiting Iraqi families who had lost relatives to violence.
The Marla Fund is implemented through four nongovernmental agencies
that cover different regions of the country. It is separate from a
Pentagon-run program that provides compensation for deaths, injuries,
or property damage as a result of activities by coalition forces. The
U.S. military plays no direct role in the Marla Fund.
To date, USAID has received approximately $40 million in
appropriations for assisting Iraqi war victims, of which $15 million
have been obligated under the Marla Fund since September 2006. A recent
USAID audit report notes that since 2003, more than 350,000 Iraqis have
directly benefited from the program, an additional 1.5 million have
benefited indirectly from the more than 630 completed projects. The
Marla Fund has supported more than 1,700 individual and community
projects.
Direct medical help is provided to individuals. Hospitals and
health clinics have been rebuilt and supplies provided. Damaged
property and municipal structures have been repaired. War victims have
received assistance to establish businesses so they can support
themselves and their families.
Injured civilians, many of them amputees who require prosthetics,
have secured medical care and rehabilitative services. One such case
involved a young Iraqi girl who lost part of her right hand and
suffered facial disfigurement as a result of conflict violence. The
Marla Fund was used to pay for her travel to the United States for
reconstructive surgery not available in Iraq.
In one Baghdad community where the local health clinic was
destroyed by violence, the Marla Fund rebuilt the health clinic and
restocked it with much-needed medical supplies. Now that the local
health clinic is again operational, community residents no longer have
to travel long distances for their regular healthcare needs.
One of the Marla Fund's successful income-generating projects is
the opening of a bakery in Salah ad Din governorate. The establishment
of that bakery has been the joint effort of thirty families, each
having a family member injured or killed in the war. After developing a
sound business plan, the families worked with a USAID implementing
partner to submit a viable funding application. Today, the bakery
thrives, boosting the incomes of these families and generating
employment opportunities to others in the community.
We have assisted widows and families of war victims. One example is
the story of Fadheela Ali Mohammed whose husband was accidentally shot
and killed while driving pilgrims across the border from Iran to Iraq.
Widowed Fadheela had three children and an ailing mother for which to
care, but she did not have proper employment or housing.
In an effort to help Fadheela and her family recover from their
loss and avoid poverty, monies from the Marla Fund helped build a new
house. The security of having reliable housing allowed Fadheela to gain
confidence and focus her attention on starting her own business. She
turned a portion of her new house into a successful shop that sells
household goods.
Like the Patrick Leahy War Victims Fund, the Marla Fund is
successfully reaching some of the most vulnerable people who are
civilian victims of war and conflict.
The Afghan Civilian Assistance Program (ACAP)--The Leahy Initiative
USAID also provides assistance to civilian victims of war in
Afghanistan. Much like the Marla Ruzicka Iraqi War Victims Fund, the
Afghan Civilian Assistance Program (ACAP) provides direct assistance to
those who have suffered losses as a direct or indirect result of
military operations in Afghanistan.
In 2003, at the urging of Senator Patrick J. Leahy, USAID's
Afghanistan Transition Initiative was established to build or repair
shelters, roads, and bridges. The implementing organization,
International Organization for Migration (IOM), worked primarily in
Afghanistan's southeastern region, a region that saw extensive military
operations against insurgents and the Taliban beginning in 2001. That
first initiative ended in 2005. Subsequently, USAID developed the ACAP.
Since 2007, USAID has obligated $18.5M into ACAP. To date, the
program has reached nearly 5,000 beneficiaries. In 2009, ACAP estimates
that it will reach an additional 26,000 beneficiaries that have already
been identified for assistance.
Through ACAP, USAID assists families or communities that suffer
losses from specific military incidents. Civilian victims are assisted
when they sustain injuries or lose family members. ACAP is not a
compensation program, does not provide handouts of cash, nor is it
intended to be used for condolence payments. Rather, ACAP provides
assistance to those most in need through sustainable assistance
packages, which IOM adjusts, to the specific needs of the
beneficiaries.
ACAP provides timely medical assistance for injured civilians--
working in-country or through an international referral system. ACAP
programs work to aid entire communities by assisting local hospitals
improve their responses in treating injuries. Communities receive
assistance to rebuild vital infrastructure and municipal buildings,
such as schools, clinics, and administration offices, which provide
essential services for the entire community.
If a family loses its primary income provider, ACAP may assist
surviving family members by providing vocational or business training;
replacing of the family's source of income, such as its herd of
livestock or it fruit orchard; or assisting in establishing a new small
business. ACAP is flexible enough to provide this type of assistance,
to fund the repair of a damaged home, or to ensure that children are
able to continue their education when one or both parents are lost.
Through IOM, USAID works on international, national, and provincial
levels, coordinating its operations with other U.S. Government
agencies, NATO Forces, the Afghan Independent Human Rights Commission,
the Government of Afghanistan, and the United Nations Assistance
Mission in Afghanistan. ACAP programs have a no-blame nature; there is
no focus on why or how the military forces have been involved in
specific incidents. What the program does focus on is identifying the
best ways to assist members of the Afghani population who have suffered
often devastating losses as a result of war and providing them with
tools to rebuild their lives.
The Way Forward
Foreign assistance can play a crucial role in building a more safe
and secure world, with representative governments that foster economic
growth and allow families to provide for their own needs as well as
ensure transparent and accountable good governance. This is in the best
interests of the United States.
Despite our best efforts to foster these ideas, some countries
remain mired in war or have recently emerged from conflict. When people
are at their most vulnerable, they are often in need of the most basic
assistance. This is what the Patrick Leahy War Victims Fund, the Marla
Ruzicka Iraqi War Victims Fund, and the Afghan Civilian Assistance
Program were designed to do. They have an immediate impact as well as a
sustainable development objective.
Much has been achieved under these initiatives for civilian victims
of conflict: Over one-quarter of a million people have received direct
assistance; hundreds of hospitals, schools, and rehabilitation centers
have been either built or supported; and thousands of national staff
have been trained. The programs contribute to stabilization efforts in
countries in the midst of conflict, like Afghanistan and Iraq, and they
help open doors in countries like Vietnam. The programs provide direct
assistance to some of the most vulnerable populations in the world.
They build good will and strengthen our country's alliances now and for
the future.
In Iraq, USAID is looking at ways to increase support to vulnerable
civilian populations such as war widows. The State Department and USAID
are analyzing their efforts in an effort to enhance support to war
widows beyond what is already provided by the Marla Fund. Additionally,
USAID will work to ensure that the needs of these vulnerable
populations are addressed by the Government of Iraq as the Government
of Iraq develops their Social Safety Net through the Ministry of Labor
and Social Affairs in the near future and as newly elected Provincial
Councils are formed. USAID will continue to build the capacity of the
Government of Iraq do this through on-going programs such as our Local
Government Project and National Capacity Development Project also known
as Tatweer (``Development'').
In addition to providing essential rehabilitation services to
amputees and other people with disabilities, the Patrick Leahy War
Victims Fund will continue to support the development of more durable
and appropriate prosthetic, orthotic, and wheelchair technologies. It
will strengthen host-country capabilities through the development of
stronger laws and policies, and train vital technical staff. The Fund
will continue to provide support for the strengthening of small-scale
rehabilitation and advocacy efforts on behalf of people with
disabilities.
Once an amputee has been fit with a quality limb or surgery has
been performed, civilian victims often lack the skills necessary to
return to meaningful employment. To that end, the Fund will put more
technical and financial emphasis on providing increased economic
opportunities. This may include job skill training, strengthening
vocational rehabilitation efforts, further development of public-
private sector partnerships, and employment mentoring.
With continued strong congressional leadership and support, USAID
will continue providing critical services and increasing opportunities
for civilian victims of conflict throughout the world so that they may
return to meaningful employment and active participation in their
communities.
Senator Leahy. Thank you.
One of the reasons I wanted to have this hearing was to
highlight the great work you and your colleagues do. I thank
you for that.
It is interesting, when you talk about the issue of foreign
aid, especially at a time like this when our own country's
economy is in dire straits, it is so easy to demagogue and say
we should not send anything to help others overseas.
I think what you and your colleagues do is demonstrate that
there is a moral aspect to this. We are the wealthiest Nation
on Earth, even with the economic problems today. To not
respond, I think, goes to our conscience and our moral standing
in the world. It goes beyond politics or economics.
When I go visit some of these sites I am often accompanied
by my wife who has been a surgical nurse. It shows you how
people with disabilities regain their mobility and their
dignity.
I had the opportunity to visit the program in Lebanon that
you described. I recognized a couple of the faces in the video.
To give people an opportunity to earn income by raising bees
and selling the honey. It seems like such a small thing, but it
is a major thing to that family. When you think about Lebanon,
there are so many people who are in need of jobs who have not
been injured, who are not disabled. And this is a country with
ethnic, religious and political violence.
I drove by a spot, I remember it very well. A couple of
days after I left, a minister of the government was driving by
exactly the same spot when the road erupted, blew him up and
the bodyguards with him. The explosion killed him and them.
You seem to be working in an area where you have everything
against you, and yet I saw firsthand it could be successful. Do
you want to tell us a little bit about that?
Mr. Djikerman. Sure. Well, one of the things that really
works is that the team of people at USAID who have been working
on this issue have been working on this for 10 to 15 plus
years, and they have developed good outreach not only with
other international organizations, but with the partner
network.
And probably one of the most key ingredients that we rely
on and we try to build on is the, if you will, the motivation,
the charisma, the energy brought by partners to do the
activities on the ground. I think you all know, Mr. Chairman,
that USAID works through partners in most places in the world.
And we have been able to find very good partners to go into
these very difficult places to start these activities.
And I think it is also fair to say in these conditions they
have been above average in terms of their motivation, their
ability to attract very good local staff, and to build
partnerships with governments. Some governments have been more
responsive than others, but they, nevertheless, have been
building partnerships with governments.
And that type of work is leading not only to the initial
benefits of getting services delivered, prosthetics, orthotics,
but also getting to the longer term goal of creating
institutions that are becoming increasingly self-sustainable.
So a lot of it goes to our partners.
Senator Leahy. I think of Dr. Nadim Karam. I met him, and I
assume that this is what you mean by the type of partner. He is
a remarkable person, for his vision and his commitment. And of
course, Ca Va Tran, who we are going to hear from next.
It should be obvious, but tell me how, if you assist
civilian casualties of war, that fits into international
development?
Mr. Djikerman. Well, basically, if we look at what USAID
tries to do, it tries to help people help themselves, and not
only the people themselves but also their governments. We work
on the aspects that are necessary to make it all work, which
means that it includes focusing on the regulatory environments
and so forth. So, in that sense, it fits right in with what
USAID is trying to do in terms of helping people in need.
USAID is also a representation of what the United States is
and does in the world. We have, as you mentioned earlier, if
you will, a moral responsibility. But it is also American
values that we are trying to project, that we do care about the
disadvantaged and disabled, particularly, those who have been
affected by war. So, in that sense, it also fits in closely
with our mandate.
Senator Leahy. You look at some of the speeches of
Secretary of Defense Gates. He has talked about how civilian
casualties have been a major obstacle, for example, in winning
the support of the Afghan people. We saw the same thing in
Iraq.
We spend, I think, $10 million a year on the Afghan
Civilian Assistance Program, $5 million on the Marla Fund, and
that is only because Congress has put the money in. Should we
be increasing those amounts? Does USAID have any plan to
increase funding for these programs?
Mr. Djikerman. Well, there are a couple of angles to this.
In addition to what we are doing with the Marla Fund and in
Iraq, for example, is that we have been supporting and putting
money into the community action program, which is built on and
tries to take some of the lessons learned from the Marla Fund
and the Patrick Leahy War Victims Fund to try to extend
benefits and assistance to those other civilians affected by
the war.
So there in Iraq, to date, we have put in an additional
$500 million since 2003, which I would like to believe, and I
do believe, builds on some of the earlier work that we have
done.
Similarly, in Afghanistan, there are plans underway to put
about $40 million into a fund that is going to be expanding
assistance to those affected by the war as collateral problems.
Senator Leahy. We talk about where the War Victims Fund has
been used, and I think of Vietnam and President George H.W.
Bush, the first President Bush, who was looking for a way to
build confidence with Vietnam. Vietnam had helped General Jack
Vessey on the POW-MIA issue. We were trying to find some way to
reciprocate.
Bobby Muller of the Vietnam Veterans of America Foundation,
and Ca Va Tran and others said here is a way we could do it, by
using the War Victims Fund, train them to make wheelchairs and
prosthetics, and do things that would be helpful. I recall
talking at different times with then-President Bush and
Secretary Baker and others and their enthusiasm in trying that.
I also remember when I visited Vietnam. I was there with
John Glenn, Tom Daschle, and a couple of others. It was a very
hot day. It was outside of Saigon. The speeches were in
Vietnamese, but explaining periodically that I am the guy who
started the War Victims Fund. Everybody would kind of point to
me.
One man sitting there in a starched shirt, no legs, just
stared at me. He had been crawling for years, using his legs.
He was going to get his first wheelchair made there. I remember
it very well. So, this went on and people kept pointing at me,
and this man just kept, I thought, glaring at me.
I thought he must not be happy with me being here, an
American and so on. They suggested I pick him up and carry him
over and put him in the chair--he was a little bit of a person
with no legs. I did. When I went to go, he grabbed my shirt,
pulled me down and kissed me. It was a very moving thing.
I remember John Glenn, who is not an emotional person, with
tears coming down his face, watching that. We were providing
the assistance because of the help of people, some in this
room, who made it possible to do that.
If you or I lost a leg, for whatever reason, we would go
on. We would get a prosthesis. The doctor would fix us up. He
or she might say this is what your insurance will pay for, but
for another $500 or $1,000, you could have this much better
one. We would pull out our checkbook, and we would do it.
We are talking about countries where $1,000 is an almost
inconceivable amount of money, and I know we are trying to
build them in the countries, which I believe strongly in. It
creates jobs. What are we doing in improving the quality of
artificial limbs and wheelchairs in those countries?
Mr. Djikerman. One of the investments we have been making
with partners and other international organizations is to pull
people together and evaluate some of the best practices. And
here is just an example of a document that we pulled together
with the World Health Organization to start pulling together
this technology and best practices and then disseminating it
out.
I believe there was a big conference about 1\1/2\ years ago
in India, where there was a lot of evaluations of different
types of wheelchair models and approaches to try to figure out
what works well in different circumstances. And I guess, if I
look at my own experience when I first went to Cambodia to look
at some of these centers, as well as in Sri Lanka, the
technology back then was more very reliant on local materials,
for example, to bang out a tin leg or something like that, that
would take maybe one person 1 day to do it.
Where we are today is using plastics and other materials
that can be gathered locally to produce about six or seven, or
four or five, depending on the environment and the technology.
So I do believe our ability as an international
organization to help bring people together, help bring together
best practices, and then help bring it to the countries with
our partners to see if it is appropriate for their environment.
I think it is working. I do feel that the limbs that I have
seen in my career are lighter, and I also do feel that we are
getting more sophisticated.
When I look at the early projects I used to visit, they
were very much focused on orthotics and prosthetics. After my
serving in Rwanda, up until the genocide, my sensitivity to the
psychological impact of these types of events became much more
acute. And so, we have been trying to do more services in those
areas as well.
Senator Leahy. Lloyd Feinberg has worked very hard on this
for years, and I enjoy talking with him. He keeps talking about
the improvements, and it has been an evolutionary thing, which
is good. Because when I first created the program, I basically
turned it over to you and said, ``Here, make it work. And come
back and tell me what is working. Tell me what is not working.
We will help you and go forward.''
Too many programs, as you know, are written in stone and
nothing changes. And yet circumstances change over time. Rwanda
is an example of that.
I should mention Lloyd is not here because he is on his
second bike trip across the country. One 3,000 mile bike trip
wasn't enough, I guess. I admire his abilities, and he goes all
over the world to make this work.
I like very much what you said about working with the
partners in these areas to use what makes sense there. I am
thinking of sustainability. We are not going to stay in
countries forever. How is Cambodia or Sierra Leone or Lebanon,
Afghanistan--how do they eventually take over and do this
themselves?
Because, unfortunately, we still haven't developed a
technique to remove all the landmines and make people whole. Do
we work with the goal that someday we are going to leave, and
they are going to have to continue this themselves?
Mr. Djikerman. Yes. That is the goal that we are working
toward and should strive to work toward.
One of the key ingredients that we are seeing from our
lessons learned so far, if you will, is that the pace that we
can make progress toward sustainability or sustainability in
the sense of it being financed within the country itself is the
role and participation of the government.
You have mentioned some of the work in Vietnam. The Vietnam
Government has been very supportive, and we have made much more
progress there as compared to some other countries. But one of
the key ingredients is the extent to which we are able to work
with and help other people there, particularly in the
government, appreciate that this type of thing has to be done.
I would like to highlight in Iraq, where the government is
beginning to focus on the concept of social safety nets, we are
trying to integrate into their program the lessons learned from
our approaches on dealing with people with disabilities and
other victims of war, as well as other vulnerable people. So
that their programs that they can and should be able to fund in
the future will be encompassing enough to include all those
that need to be included.
But the key ingredient on sustainability is the government
itself.
Senator Leahy. Well, thank you. Because as long as I am
here in the Senate, I am not only going to remember that little
boy in the field hospital in the jungle of Honduras, but I am
also going to remember all of the other places I have visited
around the world in Africa and Asia and elsewhere, where you
have worked and where we have victims that suffer in a way I
would hope that my children or my grandchildren never have to
suffer.
I think it is important that we continue to work with them,
and I will continue to give the support. But what I need from
you, and I make this as an open offer to you and to Lloyd, if
there is support you are not getting--financially or anything
else--from Congress, tell me. And I will work to get it.
So I thank you very much for being here.
We are going to take a 2-minute break while we set up for
the next witnesses.
Mr. Djikerman. Thank you very much, Mr. Chairman.
Senator Leahy. Our next panel will have Ca Va Tran,
President of Vietnam Assistance for the Handicapped (VNAH);
John Chromy, who is Vice President, External Relations,
Cooperative Housing Foundation International; Erica Gaston,
Afghanistan Fellow, Campaign for Innocent Victims in Conflict;
and Jon Tracy, Assistant Director, National Institute of
Military Justice.
Ca, go ahead, please.
STATEMENT OF CA VA TRAN, PRESIDENT, VIETNAM ASSISTANCE
FOR THE HANDICAPPED
Mr. Tran. Good morning, sir.
On behalf of the board of directors of VNAH, I am very
honored, very grateful to be here, to be included in this
important hearing.
As you know, during the war in Vietnam, I worked as an
interpreter for the U.S. marines for years. And when the war
ended in 1975, I came to the United States. And fast forward 15
years, in 1990, I returned to Vietnam.
What I saw at the time in Vietnam with the people with
disabilities, the children that were crippled by landmines, and
especially the veterans that from the South Vietnamese Army
that fought alongside of us were having a hard time without
prosthetics or wheelchairs. So with the help of the Vietnamese
friends here in the community and the wonderful American
tradition of charity, in Virginia, I founded Vietnam Assistance
for the Handicapped.
In 1992, when we first started the program in the delta,
Mekong Delta of Vietnam, the disabled American veterans were
the ones that helped us to start the seed money. And then,
eventually, the Leahy War Victims Fund through USAID stepped
in. And, sir, I am very grateful and very proud to be a grantee
of the Leahy War Victims Fund ever since.
We have helped provide over 100,000 artificial limbs and
wheelchairs to civilians. We are now working with the
Vietnamese Government in 53 provinces and cities all over
Vietnam.
USAID, as you know, at the time in the early 1990s,
committed to humanitarian assistance in Vietnam, and we were so
grateful to be part of that program. With the seed funding from
the Leahy War Victims, we have been able to work closely with
the Vietnamese Government at the local and central level.
We have mobilized the Vietnamese Americans here in America
and other organizations, including The American Legion, a
veterans service organization. We enlisted the help of the
Paralyzed American Veterans, PVA, and others, AMVETS, that
provided funding and technical support for us.
We worked with the Vietnamese National Assembly, the
equivalent to our Congress, to develop regulations and
standards on code and accessibility that today public
facilities, markets, and schools in Vietnam are built with the
American standard on accessibility. They are accessible for the
Vietnamese disabled people to have access.
So from the seed funding that helps on the ground level,
direct assistance, we now engage and work very closely with the
Vietnamese at the national central level to develop the
equivalent of the ADA, Americans with Disability Act, that soon
in October of this year is to be enacted. This demonstrates the
success of the partnership that we start out with the funds
from the grassroots level.
And several months ago, beginning October 2008, as you
know, USAID provided us the ability with a grant to expand the
program to address the disability and assistance to technical
to the health workers in Danang area under the Agent Orange
Dioxin Program. This is a step forward in the partnership that
we are so grateful to be a part of it.
Sir, I started out as a refugee, and we came to this
country with nothing. And at the end of the war in April 1975,
according to the Vietnamese Government estimates, there were
almost 1 million people that suffered, wounded by war. And
among them, in the south alone, there is an estimate of over
150,000 amputees.
I am not an NGO or a charity person by trade. I own a
restaurant in McLean, Virginia. But I went back there, and it
consumed me when we started out with the help of the fund. And
even today, after 18 years, I am still out there trying to be
helpful. And we are so grateful for the cooperation of the
Vietnamese Government, the community here, the Congress, the
fund.
Sir, our latest partner in this is the Ford Foundation.
With their special initiative on Agent Orange, it took us to a
different level in the humanitarian assistance in Vietnam. And
in this room today, Dr. Charlie Bailey is among us here today,
and we are very grateful for that.
We want to do more because the need is enormous. We also--
from this experience, we work with the Vietnamese Government to
expand our program into Laos. We are now training the Laos
Government officials on civil society in the disability
legislation area, and we would like to expand beyond Laos into
other neighboring countries. Sir, I am being honest with you,
we would like to work with Myanmar.
So, from the very small, humble effort that just focuses on
some of the allies that we left behind, we now have a
partnership with big-time premier foundations, such as the
Nippon Foundation, the Freeman Foundation--by the way, they are
based in Vermont--and the Ford Foundation.
Senator Leahy. I know the Freeman family very, very well.
Mr. Tran. Yes, sir. So, and you were out there, as you
mentioned earlier. Senator Daschle, Senator John Glenn, Senator
Clinton, some Republicans, Senator Dorgan, and Madeleine
Albright, and you witnessed firsthand what we do. We build the
artificial limbs and wheelchairs from scratch in country. We
are using people with disabilities, provide them jobs, and with
American skill, we enlist the technical know-how from San
Francisco State University. As a matter of fact, Ralf Hotchkiss
has been out there and helping us.
So it has been phenomenal, and I am very grateful to be
part of it, and I am very honored to be here today. And I wish
that we can expand further into the neighboring countries and
help the population out there. It is truthfully a good real
fund that we would like to report to you and to the American
people that we are very proud to be a part of it.
Senator Leahy. Thank you. Thank you very much.
[The statement follows:]
Prepared Statement of Ca Va Tran
Fact Sheet
Viet-Nam Assistance for the Handicapped (VNAH) is a tax exempted
(501(c)(3)), developmental organization operating in Vietnam since 1990
with programs to improve the quality of life for Vietnamese with
disabilities, through direct humanitarian assistance and through
programs to promote the reform of laws and policies affecting the
disabled.
Since the early 1990s, VNAH has been a recipient of support from
the Leahy War Victims Fund (LWVF) and, over the years, has been an
important contributor to the work of the Fund in Vietnam. VNAH has
partnered with USAID, both through LWVF and through American Schools
and Hospitals Abroad (ASHA), and other donors in programs improving
mobility for the disabled, and building capacity of local
rehabilitation service providers. VNAH works directly with the regional
rehabilitation centers of the Ministry of Labor, Invalids and Social
Affairs (MOLISA) but with the VNAH caseload handled separately from its
general work. Starting with the center in Can Tho, in the Mekong Delta,
VNAH now partners with five regional rehabilitation centers to provide
services to needy disabled people across Vietnam. To date, over 120,000
prosthetic limbs, other assistive devices and wheelchairs have been
provided to war victims and impoverished, disabled people by VNAH and
its partners.
In addition to assisting the individual disabled regain mobility,
VNAH has supported skills training, greater employment in mainstream
jobs, and capacity building for service providers so as to effectively
meet the needs of Vietnamese with disabilities. This included
supporting two national skill training schools for the disabled,
development of more inclusive employment services in 10 provinces in
Viet Nam, and set up an Employer's Council on employment for the
disabled, whose members included companies such as Ford Motor, AIG,
NIKE and local corporations. All these resulted in gainful jobs for
over 2,500 persons with disabilities through out Vietnam.
While these efforts and initiatives were badly needed and very
welcome, it was clear that systemic change was needed in the face of
the vast needs presented by almost twelve million Vietnamese with
disabilities, VNAH recognized this need and directed its focus to a new
challenge: assisting government agencies to develop and reform national
policies so they can benefit most, if not all people with disabilities
in Vietnam. Direct assistance to individuals living with disabilities
would be continued with the support of private donors.
The first major step in this direction was in 1997, when the
Committee on Social Affairs of the Vietnamese National Assembly invited
VNAH to partner with the National Assembly in sponsoring a conference
to review a draft of a new Ordnance on Disability presented by the
Ministry of Labor, Invalids and Social Affairs. VNAH agreed and fielded
a team of American experts to the conference, which was widely viewed
as quit successful.
In 1998, USAID granted VNAH funding from LWVF for this new
endeavor, which continues until the present. With VNAH advice and
technical support, the Vietnamese government agencies have achieved the
following important steps:
--Development and enactment of the Ordinance on Disability
--Establishment of the inter-agency National Coordinating Council on
Disabilities (NCCD)
--Development and enactment of the barrier-free access code and
standards for public construction
--Development and enactment of barrier-free access standards and
regulations for public transport
--Inclusion of disability concerns in the Vocational Training Law
--Development and approval of a 5 year national action plan on
disability to be implemented in all 63 provinces of Vietnam.
Currently, with LWVF funding administered by USAID/Vietnam, VNAH is
supporting government agencies in drafting the first disability law and
in revising provisions in the labor code that affect employment of the
disabled.
The above achievements in policy reform and implementation have
directly benefited around 3.6 million Vietnamese with disabilities and
indirectly impacted several million more. These established stronger
legal framework that protects the rights of the disabled and
contributes to the sustainable development of Vietnam. These benefits
will become even stronger with the completion and implementation of the
new disability law.
These accomplishments also helped VNAH win the confidence of the
host government agencies, and led VNAH to a new challenge: assisting in
developing an enabling legal framework for Vietnamese civil society
organization. VNAH has entered into formal MOUs with local government
and National Assembly agencies to support the drafting of national
legal documents governing Vietnamese non-governmental organizations.
The support resulted in the draft law that was reviewed by the National
Assembly in late 2006, as well as, sub-law regulations and guidelines.
LWVF provided VNAH with seed funding, followed by ESF of the Department
of State and other private donors, for this effort. VNAH supported
travel by Vietnamese law drafters to study relevant good laws and
practices in the United States and other countries, provided
international technical expertise and support, and provided capacity
building training for civil servants, practitioners and local NGOs.
VNAH is among the few international NGOs allowed to operate in the
Central Highlands of Vietnam, an area usually off-limit to foreign
assistance and visits. Since 2000, VNAH has provided several thousand
prosthetic limbs and other assistive devices to war victims in the five
provinces of the region. Many beneficiaries are from the ethnic
minority groups. VNAH has built 69 elementary schools, training and
boarding houses, installed several drinking water systems and trained
mid-wives for remote villages of the ethnic minority. Currently, VNAH
is supporting the disabled people in Kon Tum, a province that borders
Laos and Cambodia, with funding from the Ford Foundation.
The LWVF through USAID has helped transform VNAH from a small
charity organization to a professional developmental NGO that is
capable of implementing a wide range of developmental activities in
Vietnam and Laos, and gaining funding from various public and private
donors.
Other of VNAH's major past projects include:
--Mine risks education in Vietnam's DMZ area where UXO is still
harmful, to prevent new injuries and accidents. Funding was
from U.S. Department of Defense and Department of State.
--Introducing inclusive employment services and revision of legal
document regarding employment of the disabled in Vietnam, with
funding from the U.S. Department of Labor.
VNAH's current projects include:
--Provide rehabilitation and social supports to the disabled and
capacity building for service providers in Danang City, with
funding from LWVF/USAID Health Program for Danang.
--Construct a rehabilitation center in Danang City and facilitate the
transfer of expertise in rehabilitation medicine from the
United States to Vietnam. Funding is from ASHA/USAID and
private donors. In addition, VNAH is assisting Vietnamese
American and American organizations and individuals to support
the disadvantaged groups in Vietnam. Every year, VNAH
facilitates and organizes volunteer missions to provide
services and training in Vietnam.
--Provide prosthetic limbs and other assistive devices and
wheelchairs to poor Vietnamese living with disabled persons and
training for rehabilitation technicians and health workers.
Funding is from the Nippon Foundation (Japan) and the Freeman
Foundation (United States).
--Support disabled people in Binh Dinh and Kon Tum provinces with
rehabilitation and social services and capacity building for
local health workers, with funding from the Ford Foundation.
For more information, please visit www.vnah-hev.org.
Senator Leahy. Mr. Chromy.
STATEMENT OF JOHN CHROMY, VICE PRESIDENT, EXTERNAL
RELATIONS, COOPERATIVE HOUSING FOUNDATION
INTERNATIONAL
Mr. Chromy. Senator Leahy, thank you very much for inviting
me to join. After that presentation, I am a little stunned, and
I almost wanted to stand up and give you a round of applause
for this gentleman and for the work that you do. So I think it
is more than deserved.
I submitted to you a written report with the key
information about what is being done with the Marla funds in
Iraq. I am privileged to--consider it both a privilege and an
honor be invited here to talk with you.
A privilege because I have traveled in many countries and
worked professionally in more than 15, and I know there are
very few countries where the government invites people to come
in and petition the government and speak their minds to the
representatives of the government. And here, we not only get to
do that, but we get it at your invitation, and it is a
constitutional right as well.
I am honored to talk also because I am speaking on behalf
of not just CHF International, my organization, but three
partner organizations--Agricultural Cooperative Development
International/Volunteers in Overseas Cooperative Assistance
(ACDI-VOCA), International Relief and Development (IRD), and
Mercy Corps--all of which are implementing the Marla Ruzicka
funds all across Iraq.
And I am honored to represent them because they have been
in Iraq since 2003. They never left. They stayed through it
all. They never operated or required or requested military
support for their efforts. They stayed and lived and worked in
those communities throughout this whole operation. I have great
admiration for all of them, and as I say, I am proud to
represent them here today.
Over the last 2\1/2\ years, we--the four partners have
implemented more than $15 million worth of Marla funds in 400
and some communities, over 1,000 projects, doing exactly what
was described earlier by others--helping individual families,
particularly families, but individual victims of the military
operations from the U.S. forces and the coalition forces.
We are restricted to assisting only the victims that were
injured by coalition and U.S. operations. We do not respond
with Marla funds to those injured by insurgent suicide bombings
and so on. That is a restriction imposed by USAID guidelines.
The actual implementers of this are essentially our Iraqi
staff, people that we have trained to carry out these efforts
to meet the guidelines. We received assistance from Columbia
University professors in training them how to handle the
psychosocial problems that these families and children face,
and it is the Iraqi staff who are making this work.
What we have learned, Mr. Chairman, is Iraq is full of
many, many good and capable people. And we have been fortunate,
all of our four partners, to recruit these people, train them
to administer this program, and they do so effectively and with
honesty and integrity, and their efforts can be audited.
They also do it with great pride and great sensitivity to
the families that have been injured in all of this. So I share
that with the subcommittee and with my colleagues because I
think it is really important to understand that the people of
these countries can do very, very well many of these things.
And for them to be able to do it gives them a lot of pride and
satisfaction.
The investment we made and you made and the leadership you
have provided in making this happen strikes me as not only
commendable and important and critical to these families, but
it also strikes me that we need to put it in perspective. Over
the last number of years, we have been spending something near
$12 billion a year--a month in Iraq pursuing a whole series of
efforts, initially the war and then the counterinsurgency
efforts, the suppression of the violence, and the training of a
wide variety of--development of a wide variety of things in
Iraq.
Fifteen million dollars for Marla is the equivalent of 1.5
hours' time in those 3 years, 1.5 hours at $12 billion a month.
And to me, that is a sheer misunderstanding of what happens to
human beings when war operations take place.
I commend what we do, but I hope we put it in this
perspective. I hope your colleagues would stop and think about
this. And I would hope also that as the military actions wind
down, we are able to bring our combat people out, and there is
a future that we not forget, as our good friend here from
Vietnam has shown us, this goes on for a long time. A long time
after the military actions are over.
And we should set ourselves on a course with the Government
of Iraq to build an ongoing capacity within the nation of Iraq,
using the government's resources, to support these people for
the next generation or two.
[The statement follows:]
Prepared Statement of John W. Chromy
Background
Since September of 2006, CHF International and three sister
international non-profit organizations have been implementing the Marla
Ruzicka Iraqi War Victims' Fund on behalf of the American people of, as
directed by the United States Congress through a Cooperative Agreement
administered by the United States Agency for International Development
(USAID). The other implementing partners include:
--ACDI-VOCA
--Mercy Corps International (MCI)
--International Relief and Development (IRD)
The four programs combined have disbursed slightly more than $15
million via 1004 projects assisting civilians and communities who
suffered loss of life, limb, property and economic livelihoods as a
result of military actions taken by United States and Coalition forces.
The projects were implemented in nearly all provinces and cities of
Iraq including such conflicted areas as Baghdad, Basra, Mosul, Babil,
Najaf, Diyala and Al Anbar province.
The eligible beneficiaries are identified by the Iraqi staff of the
implementing partners in conjunction with local community leaders,
community Action Group members, police, medical and hospital personnel
and tribal elders. The victim's status had to be documented with the
assistance of the local government and witnesses where possible.
The funds were not distributed as cash payments but rather are used
to assist the victims and their families to obtain needed medical care,
re-build homes or businesses and in many cases develop a means of
economic livelihood. Since the program was being administered in the
midst of conflict and insurgent activities, the staff of each
implementing partner was given considerable discretion in working with
the communities to select appropriate means of supporting the war
victims. Typical projects included the provision of long term medical
care, prosthetic limbs and physical therapy, renovation of residences,
re-stocking of businesses, transportation to specialized medical
treatment (in some cases to Amman, Jordan), provision of livestock and
the establishment of retail stores/kiosks to provide income generation
opportunities for families that lost their normal breadwinner. A large
portion of the economic projects funded were provided to women widowed
by the conflict and their children.
One of the implementing partners chose to focus the majority of its
War Victim resources on community reconstruction projects with
substantial assurance that the community as a whole would then care for
the individual families victimized by the military activities.
Over the course of fiscal years 2007 and 2008 the four implementing
partners completed 1,004 victim assistance projects at a total cost of
$15,685,194 congressionally appropriated funds. The local communities
contributed $996,887 and local Iraqi government bodies contributed
$903,352. These projects directly assisted slightly more than 40,000
war victim family members. In late 2008 The Marla Ruzicka War Victims
Fund was further funded by the Congress and presently continues to
operate in Iraq under the management of USAID which has Cooperative
Agreement arrangements with the four implementing NGOs.
Comments and Recommendations
The above describes the program and provides the numbers. More
specifically the communities, affected families, Iraqi implementing
staff and implementing partner organizations would like to bring to the
attention of the Congress the following key points:
--The victims and their families have been nothing but deeply
grateful for assistance received under this program. Many were
traumatized into inaction by the misfortune that had befallen
their family. The arrival of the Marla War Victims Fund staff
and community leaders, bringing assistance resources revived
the families and made it possible for them to begin the
recovery process. While not explicitly advertised that the
funds came from the United States, this fact was known within
the communities and the victims often expressed their thanks to
the people of America for the assistance provided.
--Local community leaders, government officials, hospital/police/
medical staff have generally been cooperative and trustworthy
in helping select the neediest beneficiaries and ensuring the
resources were properly provided. Corruption or greed was
generally not an obstacle.
--The Iraqi implementing staff members have taken great pride in
their ability to properly manage the programs, meet audit
requirements and assist families in distress. It gives them
great satisfaction that they can positively help their fellow
citizens of Iraq amidst all the violence and destruction.
--The participation and support of community leaders, Community
Action Group members, tribal elders and medical staff were key
elements to the success of the program and a clear indication
that communities can be trusted to use funds efficiently,
effectively, contribute their own resources and in some cases
reach across ethnic and political lines to achieve help for
wounded people.
--In truth this effort not only helps to heal the wounds and trauma
of the victims but it also ``heals the community'' by providing
positive course of action, local cooperation and resources to
begin binding up the wounds of war.
--The implementing partners are especially proud of their ability to
assist 8,744 people establish new businesses and/or other
income generating opportunities. The ability for war victims to
be able to again support themselves in a kiosk or a service
shop creates goodwill and pride beyond measure, especially for
those recently widowed and needing to fend for themselves.
--The provision of medical care, prosthetics and possibly psycho-
social assistance is critical and should remain a key component
of victim assistance program.
All that said, this is all good news and provides a strong sense
that the Members of Congress were wise in authorizing and appropriating
funds for the Marla Ruzicka War Victims effort in Iraq and its related
programs in Afghanistan. However, a very wise friend of mine, Mr.
Sargent Shriver, often told me; ``Don't tell me the good news--good
news makes me complacent and therefore weak. Tell me the bad news so I
can know what I must overcome to make the program great''.
So to push us all to greatness in the future, here are the
challenges and difficulties we face:
--USAID's guidelines for the Iraq War Victims Fund definitively
restricted benefits to those victimized by the actions of U.S.
military and Coalition forces. In Iraq there are many people
who are injured or killed by the actions of the insurgents
opposing the Coalition forces. Often it is difficult after a
firefight to determine which victims were injured by which
forces--implementers' staff members have no capacity to analyze
shrapnel, bullets or explosive residue to determine the source
of the damage. Similar restrictions are not imposed on the
implementers of war victim's funds in Afghanistan. It is wise
and necessary to critically analyze this decision--one does not
wish to place the entire cost burden on the American people but
it would be useful to consider the resulting tangible benefit
in positive public sentiment towards the Coalition Forces, the
U.S. mission and the Government of Iraq. (this topic has been
raised by the USAID Inspector General in Audit report # E-267-
08-002-P--dated April 2008)
--Consideration must be given to longer term mental health care
particularly for children traumatized by war related death of
loved ones. It is relatively easy to repair the house and even
create a new retail shop--but healing the scar tissue in the
minds of children is a much more daunting and time consuming
task.
--The fund levels have allowed the reaching of only a modest portion
of the civilian victims of the conflict in Iraq. While
estimates on death levels vary from 100,000 to 300,000 plus, we
do know that the 40,000 or so directly assisted by the Marla
Ruzicka Iraq War Victims Fund leaves a vast number of victims
to fend for themselves with little or no assistance. Perhaps it
is time to turn to the Government of Iraq for additional
matching funds to meet the larger need.
--In the now infamous words of Charlie Wilson, ``What is the end
Game?'' This brings us to the larger question---where do we go
from here? Current appropriated funds will be exhausted in
early 2010. CHF's efforts to gain an audience with the
Ambassador of Iraq to discuss the future of this and other
programs have been to no avail. Perhaps a joint effort with
Senate leaders, the State Department's Ambassador to Iraq,
Representatives of USAID and the implementing partners to bring
this to the attention of senior members of the Government of
Iraq would be an appropriate strategy. The End Game could be an
Iraqi government funded NGO staffed by many of the Iraqi people
trained under the Marla Fund become a long term implementer of
support for victims of violence and conflict in Iraq. This or
some similar strategy needs to be discussed and implemented in
the remainder of 2009 and 2010.
I thank the Chairman and the members of the Committee and their
staff for this opportunity to present on behalf of the CIVIC
organization, which is the godparent of the Marla Funds, the four
implementing NGOs, the Iraqi staff who have so bravely administered the
program amidst grave danger to themselves and on behalf of the people
of Iraq injured by the international conflict and its subsequent
insurgency and insurgency suppression operations.
Mr. Chairman, it has been a privilege and an honor to testify
before you and your colleagues today.
Senator Leahy. Unfortunately, as we have discovered, this
is no longer the textbook case that peace treaties are signed,
armies march away, tanks withdraw, and all is peaceful again.
That is not the situation.
Thank you, and I am glad you highlighted the amount of
money spent on the Marla Fund and what percentage it is.
Ms. Gaston, we will also put any written statement you have
into the record. Let me turn to you.
STATEMENT OF ERICA GASTON, AFGHANISTAN FELLOW, CAMPAIGN
FOR INNOCENT VICTIMS IN CONFLICT
Ms. Gaston. Thank you very much for having me.
My name is Erica Gaston. I am the Harvard law fellow for
the Campaign for Innocent Victims in Conflict.
I have spent the last year in Afghanistan, and most of my
last year has been spent going in and just sitting in the
living rooms and talking with the Afghan families who are the
beneficiaries of some of these programs that we have been
talking with.
For the forthcoming report--the report, rather, that we
recently released, ``Losing the People,'' I interviewed 143
Afghan civilian victims of conflict since 2001. We were very
pleased that the report got significant attention not only in
different media outlets, but also in the Government and
military sector because we think just getting this information
out there and stressing some of the issues of war victims that
you, Senator Leahy, have been the champion of for so many years
is really critical.
And we were very honored, last week I had the opportunity
to brief General Petraeus personally about these issues. So we
are hoping that in the coming year, all the things that I and
all of the speakers here have been talking about will have an
impact.
What I wanted to talk to you about specifically today is
just to share with you some of what I learned in particular
about compensation and victim assistance in Afghanistan from
the point of view of the Afghans I spoke with, and particularly
what that meant in terms of the Afghan Civilian Assistance
Program.
When we looked at our report for CIVIC, we tried to survey
what are the different international military actors doing,
what is the Afghan Government doing, and also what are
different foreign governments doing?
As you may know and as I think Jon Tracy will speak about a
little bit more at length, the different international
militaries in Afghanistan have a number of different
compensation and condolence mechanisms going to civilians. But
we found that the Afghan Civilian Assistance Program that you
really have championed for so many years was the only program
of a foreign government specifically helping victims of
conflict.
Not only was it the only program sponsored by a foreign
government specifically for this purpose, but because so many
of the compensation and condolence mechanisms by different
North American Treaty Organization (NATO) countries are so ad
hoc and for most of the last 8 years have been virtually
nonexistent, for most Afghan victims of conflict, ACAP was the
only thing that they received in terms of a form of redress. So
it was hugely important.
Just to give you a little bit of background and kind of
follow up on what our USAID counterpart told us in the last
panel, the primary vehicle that ACAP reaches out and helps
families with is sort of a tailored livelihood assistance
package. So, for example, I met a man who was injured by a
cluster munition incident in the western province in
Afghanistan in 2001, and he lost one of his legs. He was very
poor. He was actually already orphaned by a previous war and
had no means to support himself.
The Afghan Civilian Assistance Program went in there,
helped him, gave him livelihood training, and now he is
actually a thriving tailor. He even gave me one of the shirts
that he made. I can't tell you how grateful he was and how
successful the program was in intervening.
I also interviewed, for example, a woman who is in a
province near Kabul. And unfortunately, she lost her husband
and her 7-year-old son due to a suicide attack there. It was
really--talking to her was one of the most emotionally
difficult experiences. She learned about the death of her
husband literally when pieces of flesh landed in her front
yard. It was absolutely horrendous.
And more importantly for her perspective, she now had to
figure out how to support her four children, her four little
girls. And it is very difficult for Afghan women to find work
in Afghanistan. So the Afghan Civilian Assistance Program went
in, helped to make sure they could keep their home, and was
working on giving her livelihood support that she can support
her family through tailoring.
So these are just a couple of the stories that I learned.
There are so many, and just as you can remember, you know, the
color of the wheelchair, I could vividly tell you what the room
looked like when I talked to these people. And I am really
honored to get to share some of this with you because so many
of them told me, please, tell this to your Government. Please
tell this to the people that we are very grateful for this, and
we appreciate it.
So I do think that it is providing a really critical
service in Afghanistan. I also do want to highlight some of the
issues that they are still working on, I think, and that might
be relevant in terms of future funding and direction on terms
of this program.
In the past, one of the weaknesses of the ACAP program has
been that it has been slow. They are trying to get more staff
for this, and I am sure more funding to support that staff
would be helpful in terms of because it is such a tailored
livelihood support program, it takes a lot of manpower. It
takes a lot of resources.
So any support in terms of that, I think, would improve the
speed with which they are able to get to victims of conflict.
Another problem that will be really an issue in 2009, I
think, in particular is that, of course, it is very dangerous
often to go into some of these conflict-affected areas. They
may end up, in addition to sort of the tailored one assistance
packages, they sometimes provide larger community grants, like
a retention wall or a school or things like that. And
particularly, they have to rely on those in these conflict-
prone provinces. They tend to be quite expensive, and we may
see an increase of them, I think, in 2009.
And then a final kind of point is that, as you might
imagine, there aren't formal things like death certificates or
ways necessarily to establish losses in Afghanistan. It is very
difficult to make sure that those that they are helping are
eligible and that they are identified for the losses. And one
of the problems in doing that in the past has been
coordination.
Just to give you an example, by my count right now there
are seven different military, governmental, NGOs, agencies that
have independent databases on civilian casualties, and none of
them share with each other. Most military Provincial
Reconstruction Teams (PRTs)--seven. Most military NPRTs don't
know about the ACAP program, even though they try and reach out
every time a new troop rotation comes in.
So simple things. You might imagine like when U.S. forces
come across a victim who is eligible for this program, they
don't necessarily know to refer it on or just to confirm that
something has happened to them, which helps in verification.
There are a couple new staff members working with USAID in
Kabul, and I think they are aware of this issue. So, hopefully,
they will be able to pass the word a little bit about what this
program is doing.
[The statement follows:]
Prepared Statement of Erica Gaston
INTRODUCTION
Over the course of 2008, I lived in Afghanistan as a fellow for the
Campaign for Innocent Victims of Conflict (CIVIC), documenting the
concerns of Afghan civilians in the most deadly year yet for Afghan
communities. The overriding message that I and my CIVIC colleagues
learned from interviewing more than 143 Afghan victims of conflict is
that recognition, compensation, or other assistance is both desperately
needed and possible in Afghanistan.
There are mechanisms working on the ground to provide this
assistance--notably the Congressionally funded Afghan Civilian
Assistance Program (ACAP) that will be the focus of this testimony.
Whereas compensation and cash condolences by the Afghan government and
international military forces were generally ad hoc, inequitable, and
under-resourced, the ACAP program's mandate to seek out and help
families affected from 2001 onward did much to address the inequities
and disparities in victim assistance. Because it provides in-kind,
tailored livelihood assistance, it also did a much better job of
addressing lingering medical, livelihood and other humanitarian needs
necessary to help families get back on their feet.
Compensation and victim assistance is both a strategic and moral
imperative for the international community, and particularly the U.S.
government, in Afghanistan. I would like to share with you some of what
will then offer a sample of the needs and issues that Afghan victims of
conflict raised in conversations with CIVIC, and how well the ACAP
program succeeded in meeting these needs. Finally I will offer some
concluding thoughts and recommendations on the overall system of victim
assistance and compensation in Afghanistan.
civilian compensation and redress: a strategic and moral imperative
Since the initial U.S. invasion in 2001, the lack of a clear,
coordinated strategy to address civilian losses has been a leading
source of anger and resentment toward military forces. Twenty billion
USD of military expenditures each month and billions more in support
operations and humanitarian aid still leaves the many civilians harmed
by international troops with nothing. As recently as 2006, 83 percent
of Afghans said they had a favorable view of U.S. military forces.\1\
Two years later that favorable view has turned into scenes of frequent,
widespread and sometimes violent protests over civilian deaths and what
they perceive as a lack of concern by international forces.
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\1\ The poll was developed by the Program on International Policy
Attitudes and fielded by ACSOR/D3 Systems, Inc. from November 27 to
December 4, 2005, with a sample of 2,089 Afghan adults.
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Avoiding harm to civilians altogether is the goal. When harm
nonetheless occurs, the imperative becomes easing the suffering of any
civilian suffering losses. Afghans expect recognition and compensation,
and they ask for it when their families or communities are harmed.
There is now acknowledgement at the highest levels that NATO mission's
failure to address these concerns is sapping public support. In his
visit to Afghanistan in September 2008, U.S. Secretary of Defense
Robert Gates said, ``I think the key for us is, on those rare occasions
when we do make a mistake, when there is an error, to apologize
quickly, to compensate the victims quickly, and then carry out the
investigation.''
This recognition has already come too late, and unless it is fully
reflected in the new Afghanistan strategy, civilian casualties and the
failure to acknowledge and redress them will be NATO's Achilles heel in
Afghanistan. Over U.S.$40 billion is spent each year by foreign
military forces, including huge amounts on ``soft power''
counterinsurgency initiatives. Yet a single incident in which military
forces harm civilians, without any acknowledgement, apology or
compensation can turn a community away from the international effort
and the Afghan government.
Victim assistance is equally critical on humanitarian grounds. In
2007 and 2008, an estimated 3,641 civilians were killed by parties to
the conflict in Afghanistan.\2\ For every civilian killed, as many or
more are injured, lose their homes or livelihoods. For countless Afghan
families living on the margins, the loss of a breadwinner, high medical
or funeral costs, or the financial burden of supporting disabled or
dependent relatives can make even basic survival difficult. For each
family struggling to recover from losses, there are multiplying ripple
effects on Afghanistan's continuing development and stabilization.
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\2\ United Nations Assistance Mission in Afghanistan, Protection of
Civilians, United Nations, January 2009, 1.
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No amount of compensation or assistance can bring back a loved one.
Yet the killing of a family member can often be an invitation for
generational revenge, made worse by ignoring that loss. Providing
specific relief to Afghan victims of conflict is both a strategic and a
humanitarian imperative for international forces.
CIVILIAN SUFFERING AND IMPORTANCE OF VICTIMS' ASSISTANCE
In the past 2 years, security has deteriorated dramatically in
Afghanistan and civilians have borne the brunt of increased violence.
The year 2008 proved to be one of the deadliest years for civilians
since the conflict began in 2001. The United Nations recorded 2,118
civilian casualties in 2008, an increase of 40 percent from the 1,523
recorded in 2007.\3\ No accurate estimates of civilian casualties since
2001 exist, although the number is likely well over 8,000, based on
available data.\4\
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\3\ United Nations Assistance Mission in Afghanistan, Armed
Conflict and Civilian Casualties,1.
\4\ Campaign for Innocent Victims in Conflict, Losing the People:
The Costs and Consequences of Civilian Suffering in Afghanistan, 8.
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In the last 2 years, fighting has spread geographically. As a
result, more communities are suffering and governmental and
humanitarian actors are finding it increasing difficult to address
their needs due to security concerns.\5\ According to UNAMA: ``Large
parts of the South, Southwest, Southeast, and Central regions of
Afghanistan are now classified by the U.N. Department of Safety and
Security (UNDSS) as `extreme risk, hostile environment'.'' \6\ Staff
from aid organizations are increasingly subject to direct attacks and
threats. UNDSS recorded 30 humanitarian workers killed and another 92
abducted between January and August 2008.\7\
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\5\ International Council for Security and Development, Struggle
for Kabul: The Taliban Advance, (London: International Council for
Security and Development, December 2008), 5.
\6\ United Nations Assistance Mission in Afghanistan, Armed
Conflict and Civilian Casualties, 3-4.
\7\ Ibid., 4.
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As a result, the majority of families and communities caught in the
conflict have been left to recover from their losses on their own.
CIVIC spoke with many civilians who years after being harmed still
experienced grief and psychological trauma from the incident. This
lingering effect continued to prevent them from resuming a normal life.
Beyond significant emotional suffering, a single incident may have
serious long-term economic and social repercussions. The Afghanistan
National Development Strategy placed ``war survivors'' as one of two
``priority groups'' in terms of improved social protection.\8\
Civilians told CIVIC how losses from conflict severely damaged or
destroyed their livelihoods and economic support bases. Medical costs
and funeral expenses often forced civilians to spend their savings and/
or take out loans that would take years to pay off. Communities
struggled to absorb the impact when multiple families were hit, or when
they lost a community leader or community infrastructure. Families and
communities across Afghanistan, many already struggling, were forced to
assume the additional burden of supporting dependents of the deceased,
or relations whose homes or communities had been destroyed.
---------------------------------------------------------------------------
\8\ Government of the Islamic Republic of Afghanistan, Afghanistan
National Development Strategy, Social Protection Sector Strategy,
(Kabul: Government of the Islamic Republic of Afghanistan, 2008), 125.
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CIVIC's interviews identified five specific situations confronting
civilians affected by the war: (1) the loss of a family member; (2) the
injury of a family member; (3) living with an injury or disability; (4)
living as an internally displaced person or refugee; and (5) wider
community ramifications.
Loss of a Family Member
Over two-thirds of the civilians interviewed by CIVIC have lost
family members during the current war. The last 2 years saw a sharp
rise in civilian casualties, leaving more families destroyed and
grieving. The death of a family member puts significant financial
strain on civilians in Afghanistan, including oft-overlooked expenses
for funerals and remarriage. The burdens are particularly acute
following the death of a principal income earner and for vulnerable
social groups such as widows and orphans.
Many of the civilians killed in Afghanistan were adult men, the
principal breadwinners for their families. When a breadwinner dies, it
is customary in Afghanistan for other family members to provide for the
surviving dependents. With resources and jobs in short supply, some
survivors are now finding it impossible to feed all the people under
their care. A survivor from the July 17, 2008 bombing of the Zerkoh
village in Shindand lost both his brothers in the air-strike. He must
now support not only his own family but the family of his two
brothers--a total of 25 people--despite having lost much of his
property in the bombing.2 Similarly, an elderly man, Said told CIVIC
how he became the sole income-provider for a family of twelve after his
son was shot by ISAF forces for approaching a cordoned-off security
area. Said described how he worked as a daily wage earner but ``I can't
find enough money for my family. I'm in trouble.''
The necessity to earn money after the death of a breadwinner also
affects the education of children who are forced to find jobs rather
than attend school. Two young brothers, Karim and Hasan, described how
their father had been riding in a rickshaw on his way to a wedding
party when a suicide bomb directed at a military convoy exploded.
International forces returned fire and the boys' father was killed.
Although they were still only in high school, the brothers dropped out
of school and started work full-time so they could support their family
of seven brothers and two sisters.
The death of a son or brother who assisted in a family business
also leads to a reduction in income or a significantly added workload
for the remaining breadwinner. One boy who helped his father work an
ice-cream truck in Kandahar was killed by a suicide bomb when he went
to get a haircut. The father, Nazar, said he could not cope without the
assistance of his son: ``I wasn't able to keep working because my job
requires a lot of physical exercise. I have to move and chop the ice
and move the truck. My boy was giving ice cream to customers and
helping me. I would get some free time when my son was there.''
According to an October 2008 report by the Food and Agriculture
Organization (FAO), ``widows, especially in rural areas, remain one of
the most vulnerable groups in the country.'' \9\ Women are excluded
from most types of employment in Afghan society.\10\ Typically, the
only way for widows to support their families is to be taken in by
other members and/or marry one of the deceased husband's brothers. One
widow, Samira, managed to find some employment after her taxi-driver
husband was killed in a U.S. aerial bombardment in 2001. Her income,
however, was insufficient to support the family and she was forced to
rely on the generosity of various relatives. She told us how it was
difficult to support all her children and that she started washing
clothes, housekeeping and taking any other small job to earn money.
Eventually, she could not survive alone because ``our family could no
longer afford a home of our own and [so] we were passed from one
relative to another.'' Samira described how the economic situation is
causing her children to suffer: ``If my husband was alive my children
would have everything like other girls and boys. They ask me sometimes
for things . . . normal things that all children ask for . . . a son
would ask his father for a bicycle, a computer, a daughter for pretty
things. Everyone has a wish. I wish my husband was alive so they could
have all these normal things. So they could have a normal childhood.''
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\9\ Internal Displacement Monitoring Center, Afghanistan:
Increasing hardship and limited support for growing displaced
population, Norwegian Refugee Council, October 28, 2008, 77.
\10\ Ibid., 61 (noting that the ``economic exclusion'' of widows
and their children together with their ``social marginalization''
complicated the reintegration of IDP and returnee widows); Government
of the Islamic Republic of Afghanistan, Afghanistan National
Development Strategy, Social Protection Sector Strategy, (Kabul:
Government of the Islamic Republic of Afghanistan, 2008), 27.
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Orphans in Afghanistan find themselves in a desperate situation.
United Nations Joint Programme on HIV/AIDS (UNAIDS) estimated that,
through 2007, 2.1 million children had lost a father, a mother or
both.\11\ There are likely even more now, given increasing rates of
civilian casualties. These children are extremely vulnerable members of
society and, when they do not have extended family members to provide
for them, they frequently end up in orphanages or on the street. CIVIC
spoke with children in Jalalabad orphaned by the July 2008 air-strike
by International Military Forces (hereinafter ``IMF'') that hit a
wedding party. One 8-year-old boy called Rafullah lost both his parents
in the same air-strike and now lives in social services. His three
sisters are also in care.
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\11\ United Nations Children's Fund, Best estimates of social
indicators for children in Afghanistan, 1990-2005, Islamic Republic of
Afghanistan, (Kabul: United Nations Children's Fund, May 2006, 68.
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The burden of funeral and remarriage expenses was mentioned by a
number of individuals interviewed by CIVIC. While it might seem callous
to talk about the expense of remarriage in the wake of tragedy, this is
the reality for many men given the Afghan social structure. For them,
remaining unmarried was unthinkable, particularly if they had small
children needing care.
Injury of a Family Member
Estimates of civilians killed by the conflict in Afghanistan show
only one slice of the picture. For every Afghan killed, as many or more
are injured by conflict, often with equally devastating consequences
for their families. Many who are injured can no longer work or
contribute to their family's livelihoods because of their disabilities.
This loss of income or livelihood support, compounded with initial or
continuing expenses for medical treatment, can be devastating for the
many Afghan families already struggling economically. The emotional
costs of injuries are impossible to quantify.
Families suffer significant financial burdens when a primary
breadwinner is injured such that he (and occasionally she) is no longer
able to earn a wage or contribute to the family livelihood. One farmer,
the sole provider for his family, told us how he was injured in a
suicide attack and could no longer work as effectively in the fields.
His family felt the impact, as he brought far less produce home.
Expensive hospital bills and continuing treatment of an injury
create heavy burdens on many Afghan families already struggling to
survive. Such expenses put families into debt, forcing them to sell
land and livestock or personal belongings, such as cars and motorbikes,
in order to raise cash. One man whose son was injured described how,
``in order to pay for the hospital treatment, we sold half our land to
pay for the bills.''
Many injured civilians become dependent on the full-time care and
support of their families. This naturally puts financial and emotional
pressure on the family member-turned-caretaker. One man who lost
sixteen members of his family in an air-strike in Kandahar described
the long-term care now required for both his brother and sister,
injured in the same attack: ``My sister cannot eat by herself anymore.
And my brother lost one leg and is paralyzed in the other leg. He is in
a wheelchair.''
Increasingly, international organizations, non-governmental
organizations and the Afghan government are developing broader medical,
social, and vocational services for those with disabilities, but the
network of support for the disabled, including those disabled by
conflict-related injuries, is thin. In Afghanistan, life is hard enough
for the perfectly healthy; there are few extra resources or
accommodations for the disabled. Additionally, stigmas against the
disabled create significant social barriers against holding a job,
going to school, marrying or other aspects of daily life.
The overall weakness of the health system offers few opportunities
for follow-up treatment after an injury--including operations,
prosthetic limbs or physical therapy. A very small minority of Afghan
families can afford to send their relatives abroad, so individuals live
with crippling injuries that in other countries could be entirely
overcome. Many organizations and hospitals in Afghanistan seek
resources to provide free or subsidized treatment for injured
survivors, but the overwhelming need and widespread poverty mean their
limited resources cannot keep up with the immediate treatment and long-
term care civilians require due to the conflict.
Loss of Property
Damage or destruction of civilian property due to the ongoing
conflict is even more pervasive than civilian deaths and injuries.
Decades of conflict in Afghanistan, the overall poor level of
development, and the geographic isolation of many communities combine
to make property loss a particularly severe and long-term hardship.
Many families do not have the means to rebuild a home or replace
livestock or other livelihood supports. Even where they do, it may take
a long time to get materials given supply and transport limitations
across the country. In the meantime, these property losses can leave
families homeless and destitute, leading to malnutrition or other
suffering.
Air-strikes are one of the most prominent causes of home
destruction. In particular, Human Rights Watch found that responsive
air-strikes called in to support ground troops are less accurate and
increase the risk to civilian property.\12\ Insurgent tactics of firing
from homes or villages and then fleeing before IMF air retaliation has
led to the destruction of many homes, particularly in the south. When
homes are destroyed, civilians must either find large sums of money to
rebuild or they become refugees or internationally displaced persons
(IDPs). Moreover, when a house is destroyed gone too are all the
family's personal possessions, livestock and vehicles. Many families
told us they had to start again from scratch, with just the clothes on
their back.
---------------------------------------------------------------------------
\12\ Human Rights Watch, Troops in Contact: Airstrikes and Civilian
Deaths in Afghanistan, (New York: Human Rights Watch, September 2008),
3.
---------------------------------------------------------------------------
CIVIC interviewed one family in Herat whose house was destroyed in
an air-strike that also killed the father: The house was completely
destroyed and burned. . . . After the incident, we lost everything: our
two cows were killed, the motorbike was blown up, our six turkeys were
killed. We were only able to bring out half of two carpets. Then, after
the incident, we moved to our aunt's house in another village in Herat
province. When we came to [our] aunt's house, there was just one small
room. We started from zero.''
The economic consequences can be equally dire when family
businesses or other livelihood support is destroyed. Civilians who lost
their livelihoods repeatedly told CIVIC that without a means of income
they could not support any injured or dependents of the deceased or
otherwise rebuild their lives. Haji Mullah in Kandahar owned a nursery
where he grew and sold potted plants. In April 2007, a suicide bomb
exploded outside his shop: My nursery shop was damaged and about 800
flower pots were destroyed at a cost of around $3,200. This was my
whole budget. I was selling them and getting money to feed my family.
But now although I have started the business again, I have had to
borrow money to do it and I became poorer.
In an agrarian society like Afghanistan, air-strikes damage
agricultural land and livestock, not only destroying a family's
livelihood but taking away their basic means of survival. One man named
Abdul who fled from air-strikes in the Shindand valley of Herat told
CIVIC how his farm and livestock were destroyed by an air-strike: I had
cows, sheep, goats, they were all killed. Now I have nothing for my
family. I could still manage to look after my family if only I had
that.''
Living as an Internally Displaced Person or Refugee
Persistent fighting and insecurity force many families to flee
their homes and communities. With nowhere to live, they become refugees
or (IDPs). According to the Norwegian Refugee Council (NRC)'s Internal
Displacement Monitoring Center, ongoing conflict has led to the
displacement of tens of thousands of Afghans each year since 2006.\13\
An estimated 44,000 civilians were displaced in the first half of 2007
alone.\14\ They are now one of the most vulnerable groups in Afghan
society for, as the NRC Secretary-General has explained, ``[t]hey may
not only have lost their homes, family members and livelihoods, but
they are receiving practically no support. The tragedy for these people
is that as their needs are rising, our ability to reach them is
dramatically decreasing.'' \15\
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\13\ Internal Displacement Monitoring Center, Afghanistan:
Increasing hardship and limited support for growing displaced
population, 9. (``The conflict is estimated to have displaced tens of
thousands of people every year since 2006, but their number has been
impossible to determine due to a lack of access to the conflict
zones.'')
\14\ Ban Ki-Moon, Report of the Secretary-General on the Protection
of Civilians in Armed Conflict, United Nations, October 2007, 2.
\15\ Siri Elverland, ``Press Release: Worsening Situation for
IDPs,'' Norwegian Refugee Council, October 28, 2008, http://www.nrc.no/
?did=9348233.
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IDPs CIVIC interviewed told a common story: fleeing in response to
immediate fighting or bombing, often grabbing what few possessions they
had, and returning (if possible) to find everything destroyed or
stolen. ``We left that same night. Some of our family members left even
their shoes. . . . After 4 days I went back to the site but when I went
to see my house, it was destroyed and nothing was there.'' The decision
to flee, even for a few weeks, carries heavy economic and personal
consequences. Away from their homes, communities, and their family's
source of income, many refugees and IDPs depend on handouts or day
labor to survive.
According to one woman in an IDP camp outside of Herat city: ``Our
life is very difficult compared to up there in the village. We used to
have possibilities up there . . . we could walk and chat with our
neighbors. You know if relatives are together they can solve their
problems together. For example, all our relatives had agriculture, had
fields, had melons. We could just go to their fields and eat them when
we were hungry. Now we have nothing. I have all these children and I
cannot provide for them.''
The Director of the Department of Refugees and Repatriation (DORR)
in Herat estimated that in the three IDP camps in the Herat city area,
60-65 percent could not support the basic needs of their family.
Similar problems exist in IDP camps around Afghanistan--and
particularly in the east of the country where many civilians are being
forced to leave refugee camps in adjacent Pakistan, either because of
increased fighting there or because of Pakistani government decisions.
Wider Community Impacts
Civilian losses, such as a school, road, water system, or bridge,
have far-reaching and community-wide impact. If an elder or teacher is
killed, it can take a generation for the community to recover from the
loss. When incidents affect many families in the same community, the
burdens are shared and can have long-term consequences. Patterns of
fighting in a given area limit available employment opportunities,
international and local aid or government services.
Compounding physical or livelihood losses are the emotional and
psychological burdens for a community trying to go about its ordinary,
daily business. Nighttime searches by international forces or general
intimidation tactics by AOG can create a climate of fear across an
entire community. Frequent bombings or ongoing fighting can leave even
those without tangible losses with feelings of hopelessness, anger, and
despair.
In November 2007, a suicide bomber targeting Italian troops killed
nine civilians and injured many others. The most respected community
elder, who had helped lead disarmament and peace negotiations among
many tribes in the area, was also killed. His loss is irreplaceable,
community leaders said. A local aid worker in the Western region of
Afghanistan told CIVIC he was working on delivering aid to a community
in the Shindand valley of Herat province for over a year. The only way
to access the valley was under the protection of a local community
leader. After that leader was killed in a U.S. airstrike on July 17,
2008, the aid worker said it would be impossible to reach those
affected communities.
Large-scale damage stretches community resources and affects the
quality of life even for those not directly harmed by the incident,
often for many years after the incident. CIVIC visited a community
affected by a U.S. air-strike in Herat city on October 22, 2001. The
air-strike reportedly missed a military target and directly hit an area
within the city, damaging or destroying the houses of forty-five
families, killing twelve and injuring tens of others. According to the
father of one family, everyone he was close to was affected: ``One of
the bombs landed in our yard. The other landed on my brother's house,
the other my neighbor here, the other my neighbor there.''
When CIVIC visited the area 7 years later, the community was only
just recovering. Even those who were spared direct harm complained
about a general deterioration of their quality of life, and that they
had received no help to recover. The strain of recovery can be more
pronounced for communities isolated by security conditions. In February
2002, U.S. air-strikes caused widespread damage to a small village
called Shar-E-Cott in the southeastern province of Paktia. Multiple
families were directly harmed; infrastructure damage to the town itself
and to the surrounding roads impoverished the entire community. In part
because of its isolated location and because of deteriorating security
following the air-strikes, the community was cut off from almost all
emergency relief or development aid. Although road access has recently
improved through mass infrastructure projects, increased fighting and
Taliban attacks still restrict the supplies that can reach the
community.
AFGHAN CIVILIAN ASSISTANCE PROGRAM
Some international military forces, and Afghan President Karzai,
provide different amounts and types of compensation or cash
``condolences'' where the ongoing conflict has unintentionally harmed
civilians. In the past though, these compensation and condolence
mechanisms have been sporadic to non-existent in terms of their ability
to reach the Afghan public. Although the civilian counterparts of IMF
countries provide much foreign aid and development assistance in
Afghanistan, my research with CIVIC indentified only one program funded
by the civilian branch of an IMF country that specifically addressed
conflict-affected civilians: the Afghan Civilian Assistance Program
(ACAP). Created by the United States Congress and implemented on the
ground by the International Organization for Migration (IOM), ACAP's
mission is to seek out and provide tailored, in-kind assistance to
civilians harmed by IMF as far back as 2001.
ACAP was officially established by the U.S. Congress in 2006,
though its work had been operating under another similar mechanism
several years before. It is funded by USAID and implemented by IOM. In
fiscal year 2008, the U.S. Congress appropriated US$20 million for the
program.
According to the legislation, ACAP is ``designed to assist Afghan
families and communities that have suffered losses as a result of the
military operations against the Taliban and insurgents.'' \16\
Civilians eligible to receive ACAP assistance include families
suffering losses due to U.S. military activities since 2001 or any ISAF
activities since 2006. This includes losses indirectly resulting from
IMF actions, including suicide bombings or other attacks against IMF or
support personnel for IMF. Eligible losses include the death of a
family or community member, the severe injury of a family breadwinner,
significant property loss and the loss of important community buildings
or infrastructure.
Staff from ACAP, usually Afghans, work individually with families
to help them rebuild. Aid packages include any or all of the following:
developing a local business, supplementing an existing business,
providing literacy or vocational training for children or adults in the
family, rebuilding or constructing shelter, medical treatment or other
in-kind assistance.
ACAP assistance varies depending on the needs of the affected
civilians. The primary form is livelihood development. Families with an
existing business may be given material to help expand it--from
infrastructure improvement to additional stock for grocery stores,
wood-selling businesses or other trades. Families with no regular
business or income may be given material or the training necessary to
develop one, such as materials for a grocery store, carpentry or
mechanical training for sons of a family, or vocational training in
cosmetics or sewing for women of the family.
CIVIC interviewed a widow, Bibi Merra, who was training to become a
beauty technician. She lost her husband and her home in a U.S. air-
strike in 2001 and, seven years later, was still forced to rely on
relatives to provide food and shelter for her children. She told us:
``After I finish I will set up a beauty salon for this business. . . .
At first I could not imagine that I could learn to do it. . . . [Now] I
hope to have my own independent income and when I do this will take the
pressure off of me a little bit.''
Timor, a taxi driver from the eastern province of Jalalabad, told
CIVIC his taxi was destroyed by stray bullets in an escalation of force
incident with U.S. troops. He described how: ``When I was discharged
from hospital, I was totally recovered but I didn't have any way to
support my family now that my taxi had been destroyed. ACAP recently
helped me purchase a vehicle. ACAP has also given assistance for the
education of my three sons and five daughters.''
For many families, this livelihood assistance was not only a source
of income but a way to reintegrate the disabled into their communities.
Social stigmas in Afghanistan often prevent the disabled from receiving
an education, finding employment or otherwise carrying on a normal
life. CIVIC spoke with one young man whose arm was incapacitated when a
suicide blast exploded near him in the central market of Gardez city.
ACAP helped pay for an apprenticeship as a mechanic and purchased the
equipment he needed to start his business. He pointed to his partner,
who was his teacher during the apprenticeship, ``I was a student of
this man [senior mechanic] but now I am better than he is!''
Most families also receive standard educational ``kits'' for
children of the family. Literacy training for women or children in the
family is strongly encouraged. Women of the family are often given
sewing kits, and where possible, found employment as seamstresses or
other work appropriate to women.
In some cases ACAP funds medical expenses or travel to/from medical
treatment centers. Given the high poverty levels in Afghanistan, the
cost of transport to the place where treatment is provided can prevent
civilians from receiving critical or continuing treatment. In one of
its more exceptional cases, ACAP assisted Bilal to go to India for eye
treatment after shrapnel wounds from a U.S. air-strike in 2002
destroyed his vision. The treatment had not restored his eyesight as of
the date of this report, but the operation provided him with a chance
and he and his family were extremely grateful. They said they had
written countless letters to the U.S. Embassy, military authorities and
other agencies for years, and while everyone promised to help them,
ACAP was the only one that actually did.
Other civilians also told CIVIC that while they had asked for
help--sometimes for years--from IMF, from the government or from other
agencies, ACAP staff were the only ones to follow through on promises
of aid. Three friends in Kandahar city lost their carpentry businesses
and nearly their lives to a suicide bomb. The men said they received no
help from anyone despite extensive publicity surrounding the bombing.
When ACAP identified them, medical expenses had put them into such dire
economic straits they could barely feed their families. One of the
carpenters explained the significance of the ACAP assistance:
``Nowadays, if you get a piece of bread from someone, you are happy. So
this aid is very important. It will help to expand my supplies and to
expand business. It will bring positive effects to my family. With this
business, we can pay off the loans that we owe to people.''
ACAP also provides community assistance, usually when an incident
has affected the whole community or when security concerns prevent
individual assistance. For example, a February 2002 U.S. air-strike
caused heavy losses for one village in southeastern Paktia province,
but because of its remote location and high security risks, little aid
or assistance by any humanitarian or government agency had been
possible for years.
In 2008, ACAP was able to help the community by providing them the
materials and cash-for-work payments to build a retaining wall.
Where ACAP assistance was delivered at approximately the same time
as compensation or cash ``condolence'' payments from the international
military or the Afghan Government, civilians were far more likely to
recover from their losses. ACAP assistance usually requires families to
provide some input--for example, jointly splitting expenses with ACAP
for an investment in a new business. A cash influx from IMF or the
Afghan government together with ACAP's livelihood assistance tended to
help families pay their share of these costs, or enabled them to pay
for immediate funeral or medical expenses and still have money to
contribute toward making the most of their ACAP assistance, according
to ACAP staff.
While most beneficiaries seemed happy with the ACAP assistance,
implementing this type of program has its challenges. Months can pass
between when a family is identified and when they actually receive aid
because identifying eligible civilians is exceedingly difficult and any
resulting aid package takes time to personalize. Further, while
distinct funding from the U.S. Congress for ACAP did not come through
until 2006, civilians are eligible for assistance based on losses
suffered as far back as 2001. These beneficiaries will receive aid 5 or
more years after the harm occurred. ACAP staff has a goal of turning
around new cases within 8 weeks, but the backlog of cases combined with
new cases has made that goal impossible thus far.
As violence escalates across Afghanistan, identifying civilians and
delivering assistance becomes that much more difficult. As Masood
Karakhoil, a humanitarian working in conflict-prone areas said: ``The
situation now . . . the frequency and intensity of attacks makes it
difficult to find families [who are eligible] and makes it even more
difficult to find out how to help them, what they need.'' \16\ Reports
by the media or other independent monitors are an important way for
ACAP to verify claims but, as security conditions have crumbled,
journalists and other monitors are able to access fewer areas to verify
the number of civilians harmed.
---------------------------------------------------------------------------
\16\ United States Agency for International Development and
International Organization for Migration, ``Eligibility Criteria for
ACAP Beneficiaries,'' [Date not available], Copy on file with CIVIC.
---------------------------------------------------------------------------
Poor information sharing between independent monitoring agencies,
the military and ACAP made it even more difficult for ACAP staff to
overcome these issues. ACAP staff regularly reaches out to
representatives of international organizations, military actors or
others with knowledge of civilian losses, but such efforts did not
always result in the type of information sharing or referrals that
might help it identify and verify the eligibility of civilians more
quickly. While energy is put into catching military commanders early in
their rotation and information about ACAP is included in some
briefings, no military representative CIVIC spoke to knew about the
program.
Security issues get in the way of quick and effective
implementation. USAID programming and other U.S. government-funded
programs have long been targeted by insurgents, so ACAP staff are not
required to tell beneficiaries where their funding comes from,
particularly where doing so might put anyone involved at risk. Now
representatives of the international community in many areas across
Afghanistan and regardless of their source of funding are being
targeted. Afghan staff of ACAP face significant risk going into high-
conflict areas to deliver assistance. One ACAP worker described how he
was threatened by the Taliban in Kandahar: ``I was taking a survey and
I had cameras up there. The Taliban surrounded us with guns pointed at
us. We were captured and we were taken to an area with 70 other
Taliban, and fortunately I met someone up there who I knew and that
person saved me.''
Another staff member described how the Taliban intimidated
civilians eligible to receive ACAP assistance: ``The Taliban said [to
civilians] that if you take any money from the United Nations, then we
will take it from you. Any international organization's money will be
spent on your burial.''
Security is a bigger hurdle for ACAP relative to other programs
given its goal of providing individually tailored aid. Each tailored
package may require three or more visits to complete assistance, and
each visit could be delayed by days, weeks or even months due to
persistent security threats in an area, setting the whole process back.
A civilian we spoke with described how these security problems
undermined his ACAP assistance. An ACAP loan to rebuild his home was to
be provided in four installments, with a progress check between
payments. However, the requirement that an observer had to check the
building process before installments were paid proved impossible in the
security environment: The [ACAP] observer said that we would have to
guarantee his safety if he went up to see the land. But we cannot
guarantee his safety. We cannot guarantee our own safety, so how can we
guarantee the safety of the people coming to assess? The Taliban will
see us bringing the observer and they will say that we are helping the
government and bringing spies to the area.
The family's inability to protect the observer means they have not
received their second installment and cannot continue building their
home. While ACAP is working to solve some of the issues noted above
(for example, hiring more staff in order to speed delivery time), it
should be noted that many of the problems ACAP encountered were due to
the difficulty of implementing a program like this in Afghanistan
rather than any weak or faulty program design. Many challenges are
interrelated, making it difficult to address any one concern without
creating other problems. For example, efforts to minimize the time it
takes to deliver aid may involve trade-offs in minimizing corruption,
ensuring equal and consistent aid distribution, or a level of
personalization in approach.
While conflict-affected civilians may prefer more timely, plentiful
and personalized support, or monetary compensation rather than in-kind
aid, program administrators and donors must balance these concerns
against institutional priorities of ensuring that aid is accountable,
fairly and consistently delivered, and reasonably priced. The fact that
ACAP has been able to overcome so many of problems inherent to the
current environment of Afghanistan and reach so many civilians in such
a specialized way is in itself a huge achievement and certainly a step
above many of the other civilian assistance programs available in
Afghanistan.
Sustainable livelihood assistance through ACAP seemed extremely
valuable to beneficiaries given the economic pressures in Afghanistan.
The assistance, however, did not always meet the emotional desire of
civilians for redress. Although the program was funded by the U.S.
Congress in part to make amends (and promote strategic ``hearts and
minds'' concerns), beneficiaries did not often view the assistance as a
source of atonement or condolence for their losses and did not report a
sense of redress or reconciliation.
One man lost his father and niece in an escalation of force
incident in Jalalabad. The shots from U.S. forces left approximately
1,250 holes in his car. He said the assistance he received from ACAP
was a big help but he still wanted accountability in a formal trial:
``We want justice,'' he said. ``Yes, there [have] been a lot of changes
to my life since ACAP--but I still want justice.''
Another man's son was killed by U.S. troops in a road accident. He
not only received ACAP assistance for a new business but also a direct
apology and monetary support from the troops involved. When
interviewed, he seemed to have found greater peace with the military
payment and apology than with the ACAP assistance. He was enthusiastic
in talking about the ACAP assistance he had received. But when he told
CIVIC how the troops apologized directly to him and seemed genuinely
remorseful, he said he forgave them and did not associate the same
sentiments with the later ACAP assistance: ``We appreciate the
assistance. Nobody can give the price of the dead. Nobody can replace
what you have lost. But this assistance that ACAP provided to us . . .
we are very happy with it.''
As mentioned previously, ACAP assistance often comes long after the
actual incident. The gap in time between the incident and the response
may also help explain why the assistance is often not considered a
direct response to the harm done.
While few civilians talked about ACAP assistance as a means of
redress, many said they enjoyed a better quality of life, and as a
result seemed more positive about their situation and less resentful
about the incident. Further research should be done into how this type
of assistance might contribute to a sense of redress.
CONCLUSION AND RECOMMENDATIONS
I have focused my testimony on what I observed and learned about
the Congressionally-funded ACAP program. The ACAP program has done a
remarkable job in identifying and reaching out to civilian victims of
conflict in an increasingly tough environment. It occupies a unique
role in the web of victim assistance and redress in Afghanistan, and
should continue to be supported. The tailored aid seemed better able to
meet the variety of needs from which conflict-affected families suffer
than other approaches like military compensation. In many cases, ACAP
assistance was extremely effective in helping victims of conflict
rebuild their lives and recover from an incident. Challenges include
the slow delivery of aid and access limitations due to increasing and
geographically shifting insecurity. More funding and coordination might
address some of these problems. Greater funding for staff from the U.S.
Congress can speed delivery times, and greater coordination with other
victim support or ex gratia mechanisms might help get around security
hurdles to identifying beneficiaries.
The ACAP program is a remarkable achievement, and the only one of
its kind by a foreign government. Yet, Congress can do so much more.
The U.S. Government should initiate and spearhead the development
of a unified, comprehensive, and coordinated mechanism for condolence
payments in Afghanistan.--As evidenced by the ACAP program and by the
U.S. military's early adoption of direct condolence payments to Afghan
civilians, the United States has been a leader on the issue of
compensation and victim assistance in Afghanistan.
Given our coalition commitments in Afghanistan, though, it is not
enough to do it alone. There is no unified or systematic NATO mechanism
for providing condolences for damage or loss caused by military
operations. Rather, the processes for dispensing condolence payments
are opaque, ad hoc, and vary from nation to nation. The amount paid in
condolences to an individual family has ranged from US$25,000 to a few
hundred dollars to nothing, depending on the location and the countries
involved.
Most of our NATO partners have funds available for victim
assistance, and have provided compensation or victim assistance in the
past where incidents have arisen. The foundations for doing this right
is there, but so far the coordination has not been. As the leader on
these issues, the United States should push for NATO to establish a
centralized and unified condolence payments mechanism comprised of
senior military staff, including from the Afghan National Security
Forces (ANSF), and specialist civilians. In particular, NATO should:
--coordinate and liaise closely with all ISAF, OEF and ANSF units and
the ISAF civilian casualty tracking cell;
--ensure that staff working to address civilian losses are easily
accessible in all conflict-affected areas and that communities
are made fully aware of the claims process;
--develop clear, consistent rules on eligibility for condolence
payments; and
--ensure that such payments are sufficient and appropriate for the
harm suffered.
Congress should create a consistent, uniform claims system for non-
combatants harmed as a result of U.S. actions.--In the absence of a
viable civilian claims program, the current condolence program was
pieced together in 2003 and remains ad hoc, inadequate, and poorly
funded, often increasing resentment rather than fostering goodwill.
Because existing condolence funds and claims systems have been
developed as the need arose, the system is constantly reinvented with
each military engagement, and sometimes with each new troop deployment.
The result is a fractured, uneven, and sometimes unfair system that
often does not serve the strategic or humanitarian aims for which these
mechanisms were created. To address these problems, Congress should
create a permanent, effective civilian claims system that would:
--create separate lines of funding, so that available condolence
funds are not squeezed out by competing demands to
reconstruction projects or other counterinsurgency demands
under the Commander's Emergency Response Program (CERP)--the
fund from which most condolences are currently pulled;
--establish uniform, theater-specific guidelines on standards of
proof, valuation, recordkeeping and an appeals process;
--valuate loss of life, limb or property on a case-by-case basis
(with culturally appropriate guidance) with no artificial
ceiling;
--provide the JAs, who are already trained in adjudicating claims
under the Foreign Claims Act for non-combat harm, with further
practical guidance on standards of proof as well as appropriate
ways to deal with civilian victims;
--ensure that the current mechanism will be a permanent one, so that
in the event of any new conflicts or military engagements, the
U.S. military will have a fair and functional claims system
ready to go for civilians caught in war.
Congress should encourage Secretary of Defense Robert Gates to
create a high-level position at the Pentagon to track, monitor, analyze
and, in sum, decrease the human costs of war.--The U.S. government must
respond to international outcry over civilian casualties wherever the
United States is militarily engaged. With every civilian harmed by U.S.
forces, anger grows. America's image abroad suffers. Minimizing
civilian harm is not only the right thing to do, it's critical to
achieve U.S. military and political objectives. There is consensus on
this at the highest policy levels, yet there is no office or senior
person at the Pentagon responsible for carrying out these strategic
imperatives. From our counterinsurgency initiatives in Iraq to programs
like ACAP or condolences in Afghanistan, the United States response has
been ad hoc all the way from planning to execution. There is an urgent
need for the U.S. government to devote more focused resources and
institutional attention to such a critical issue. In particular, an
advisory position at the Pentagon would act as a nexus to:
--assess the potential human cost of war before any shots are fired;
--augment techniques to avoid civilians once the fighting starts;
--maintain proper investigative and statistical data on civilian
casualties;
--ensure efficient compensation for unintentional civilian harm.
No amount of compensation or assistance can bring back a loved one,
yet survivors can be properly supported and helped toward some
semblance of recovery. For moral and strategic reasons, the billions of
dollars spent to win, keep and rebuild Afghan communities must include
specific outlays for recognition and assistance to civilians suffering
losses due to the conflict.
Senator Leahy. Thank you.
I have been making notes as you and Mr. Chromy have been
talking. I intend in the next few weeks to be in both Iraq and
Afghanistan. That is one of the reasons I wanted to have this
hearing now.
I want to call on Mr. Tracy, who, among other things, was a
JAG officer in Iraq. Am I correct on that?
STATEMENT OF JONATHAN TRACY, ASSOCIATE DIRECTOR,
NATIONAL INSTITUTE OF MILITARY JUSTICE
Mr. Tracy. Yes, Mr. Chairman. I was. And thank you for
inviting me to speak.
I was actually a Judge Advocate serving in Baghdad from May
2003 until July 2004, and my main area of responsibility was
adjudicating claims filed by Iraqis for harm that U.S. forces
allegedly caused. And in particular, I am going to talk to you
about the condolence program, which the military eventually
created to provide some sort of monetary assistance to civilian
casualties.
As I said, I was there in the beginning of the conflict in
May 2003, and I would like to just tell you about a couple of
the cases that I handled. During my entire tenure there, I
probably handled about 1,500 to 2,000 cases, and one of the
first ones involved a series of shootings at a hasty
checkpoint. And this was a typical sort of case. I probably had
about 50 or so of these sorts of cases.
On this particular day, soldiers in my unit had established
a hasty checkpoint in the Karadah district of Baghdad, and I
don't recall the reason why. But anyway, they had established
this checkpoint, and a vehicle driven by an older gentleman
approached the checkpoint.
He was not used to these sorts of things. He wasn't used to
U.S. soldiers. This was very early on in the conflict. And he
drove too close, and a soldier in a Humvee fired a 50-caliber
rifle at him, and it killed him.
Unfortunately, that is not where the tragedy ends. As the
soldiers were securing that vehicle and that scene, a second
vehicle approached the checkpoint and same scenario. The car,
for whatever reason, wasn't used to checkpoints, drove too
closely, and the U.S. soldiers fired on that vehicle, killing
the driver and the passenger.
I had the opportunity to meet the family members from all
three of those victims, and they came in, and I investigated
it. And I can tell you that there was no evidence that they had
any ill intent toward the United States. There was no weapons
found in the vehicles. There was no contraband. It was clearly
just a tragic incident that they weren't used to checkpoints,
and the signage that was used by the soldiers probably wasn't
good enough.
But for whatever reason, this thing happened. And
obviously, the soldiers themselves were operating within the
rules of engagement. That is the reason why I could not provide
compensation under the Foreign Claims Act.
The Foreign Claims Act has been around since World War II
and allows us to provide full compensation if the harm results
from a noncombat act or a negligent act or a wrongful act. In
this situation, the military rules were followed. The rules of
engagement were followed. So these soldiers were acting within
those rules. So I couldn't offer compensation.
However, since World War II, the military has sometimes
come up with various systems to provide some sort of sympathy
payment. Sometimes they do. Sometimes they don't. For whatever
reason in the Iraq conflict, they decided that this would be
inappropriate, and for the first 5 to 6 months of that
conflict, we were not able to pay any sort of sympathy
payments.
So a case like I just described to you, which would have
been a perfect example of innocent civilian casualties, there
was no source of funding to provide any aid to them. And that
lasted, like I said, for the first 5 to 6 months of the
conflict.
Eventually, lawyers on the ground, commanders on the ground
made enough of a complaint up the chain of command that they
eventually--the command in Iraq did establish a system, the
condolence system. At the time, originally, I could offer
$2,500 for a life, and $1,000 for an injury. Today, that amount
is $2,500 for a death, for an injury, or for damaged property.
Even though this program was very well intended, there was
a lot of significant problems associated with it, and one was
that there was no standardized rules. Two Iraqis who suffered
substantially the same harm in different areas of the city
would be treated very differently depending on what office they
went to inside Baghdad to file their claim at.
Just to give you one example, I had a case where a mother
and her young daughter who was age 7 were walking to the
market, and the U.S. soldiers that were driving down the street
were ambushed, and there was a firefight that ensued between
the soldiers and the insurgent forces. And tragically, the
young girl was shot in the crossfire.
And she originally--the mother, that is, originally filed
the claim with the appropriate unit. This happened in a
different unit's area of operation, in a different section of
Baghdad. And she filed the claim there, and the lawyer rightly
denied the claim under the Foreign Claims Act because it was a
combat claim. But he also didn't pay a condolence payment, even
though at the time these were authorized, and he could have
paid her $1,000 for that injury. For whatever reason, he
decided not to pay that.
Luckily, she did find a different avenue. She found our
office hours, and she came and filed the claim with us, and we
were able to pay her $1,000 for her daughter's injury. But not
every time did that happen. You know, people generally don't go
shopping around or driving to different areas of Iraq just to
file a claim once they are denied. They figure if they are
denied by one officer, they are probably going to be denied by
other officers.
So this lack of standard rules really caused a lot of
heartache.
Another problem that I encountered on a weekly basis is
that I never had enough money. I had to deny so many valid
condolence payments simply because I didn't have any cash. And
one of the reasons for that was that condolences are out of the
Commander's Emergency Response Program, which funds all sorts
of other reconstruction projects that the military is involved
in. And those projects, fixing hospitals and the like,
obviously to the commanders take more precedence over
individual payments to civilian casualties.
So many times, I had no money. And on any given week, I on
average had $7,000. But I had many more people filing claims
than that would have covered. And some weeks, I had zero
dollars, which meant no one got any money that week. And in a
lot of instances, people would come back 2, 3 weeks in a row,
but I would never have enough money to pay their claim.
And another problem that was associated with that is that
in many instances, I had to make sort of gut decisions about
who was going to get money and who was not, even though they
were valid, and that was a very painful position to be in. And
it is one that I don't think any unit or any attorney or
commander should have to be in. All valid claims should be able
to be paid.
Since leaving the Army in 2005, I have sort of dedicated
some of my time to trying to help fix these issues and make the
program more equitable to the civilian casualties. And I think
that, ultimately, it is going to take congressional action and
legislation to fix this problem.
As I said, the military sometimes creates ad hoc programs
to provide compensation in these sorts of cases, but sometimes
they don't. That is why we need a permanent system, something
that is always on the shelf, and for any conflict that the U.S.
military engages in, they have the system that they can take
off the shelf and use. It would also create uniform standards
and rules that all commanders and lawyers and other soldiers
would be trained on before going into a conflict zone so that
they would all know how to implement it on the ground.
And finally, it would be a dependable source of funding. So
attorneys out in the field or commanders out in the field who
have valid claims that they want to pay would have funding, as
they do under the Foreign Claims Act.
Just in conclusion, Mr. Chairman, I just wanted to say that
I think that the debate over providing aid to civilian
casualties is largely over with in the military. Pretty much
all military commanders and lawyers understand that there is a
need to pay these sorts of things. The problem is that the
systems that we have been using have been imperfect, and I
think that we can definitely do better in the future.
Thank you.
[The statement follows:]
Prepared Statement of Jonathan Tracy
Chairman Leahy and members of the Subcommittee: Thank you for
inviting me to submit written testimony for this session. I am
currently the Assistant Director of the National Institute of Military
Justice. Before taking my current position, I served this country as a
U.S. Army judge advocate. After leaving the military, I worked for the
Campaign for Innocent Victims in Conflict (CIVIC) as a military legal
advisor. I joined the U.S. Army in January 2002 after completing law
school and obtaining my license to the Ohio State Bar. I was both
excited about my upcoming service in the Army and unsure of what to
expect. After nearly 4 months of Officer Basic Course, I reported to my
duty assignment in Baumholder, Germany with the 1st Armored Division. I
trained and worked in that legal office for one year before deploying
to Baghdad with the 2nd Brigade of the 1st Armored Division in support
of Operation Iraqi Freedom.
Two attorneys were assigned to 2nd Brigade. Based on our division
of labor, I was tasked with administrative law, legal assistance and
claims law. The testimony here concerns my assignment as the brigade
claims lawyer. Besides adjudicating the occasional claim filed by U.S.
service members, for items such as lost laundry or stolen DVDs, I
adjudicated claims filed by local Iraqis within my brigade's area of
operations in Baghdad. This duty occupied approximately 60 percent of
my time while in Iraq. Second Brigade's area of responsibility included
the Karkh and Karadah districts of Baghdad, both major population
centers. I handled approximately 1,500-2,000 cases during my 14 months
in Iraq. Claims from Iraqis were handled in one of two distinct
systems. The first is a product of the U.S. Code--the Foreign Claims
Act \1\ (FCA)--and the second is an ex gratia program known as the
Condolence Payment Program.
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\1\ 10 U.S.C. 2734(a).
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I dealt extensively with both programs and met with hundreds of
innocent Iraqi civilians in 2003-2004 who suffered immeasurably from
the armed conflict. I treated them according to the law and the
military orders in place. While these well-intentioned rules--which to
my knowledge remain largely the same today--attempt to provide
assistance to individuals or families for ``collateral damage'', a
large gap exists in the system that bars many innocent victims from
receiving just treatment. After leaving the military, I decided it was
important to shed light on the inherent problems within the claims
system with the hope that Congress might remedy the situation to ensure
the just and equitable treatment of all innocent civilian casualties.
Military commanders, planners and lawyers have long understood the need
to help where we have inadvertently harmed. There is no debate about
that policy. The question is, can the United States do a better job of
providing assistance to civilian casualties?
The Foreign Claims Act
The preamble of the FCA defines its purpose as being to ``promote
and maintain friendly relations through the prompt settlement of
meritorious claims.'' In other words, the goal is to win hearts and
minds. Foreign nationals may file claims to receive compensation for a
death to a family member, personal injury, or property damage caused by
a member of the armed forces or a civilian employee accompanying the
force. Several elements of the FCA must be satisfied before
compensation may be authorized. The claimant must be ``friendly.'' This
means the victim may not be an enemy to the United States or provide
aid to an enemy. A claim must be filed within 2 years from the date the
harm occurred. To be payable, the damage or injury must result from a
``noncombat'' activity or a negligent or wrongful act. A claim is not
payable if the harm results from a lawful and reasonable combat act.
For example, civilians standing between insurgents and U.S. soldiers
during a firefight would not be eligible for compensation under the FCA
for any harm that resulted from the firefight as long as the U.S.
soldiers involved operated within the rules of engagement (ROE) and
without negligence. For example, one type of case I saw a lot of was
shootings from a U.S. military convoy. Soldiers in a convoy would
perceive a threat from a civilian vehicle and fire at the vehicle
killing or injuring the occupants after various non-lethal measures
failed to get the civilian car to stop. After investigating the
vehicle, the soldiers would not find any weapons or evidence that the
occupants were part of the insurgency. I would not be able to offer any
of the survivors of the family members of the deceased any compensation
because the use of force by the soldier would be deemed within the
rules of engagement. Claims judge advocates call this rule the ``combat
exclusion.'' It is defined as any incident that results directly or
indirectly from action by enemy or U.S. forces engaged in armed
conflict or in immediate preparation for impending armed conflict.
I believe I authorized a few hundred thousand dollars in FCA
payments. The vast majority of cases involved vehicular accidents. I
received some training on claims law while at Officer Basic Course in
2002. I also received training by a civilian employee of the U.S. Army
Claims Service, the agency responsible for overseeing tort claims. All
judge advocates appointed to serve as foreign claims commissioners must
receive the U.S. Army Claims Service's training. This training covers
the statute and the Army's implementing regulation, Chapter 10 of Army
Regulation 27-10 (``the regulation''). Various topics such as the rules
of evidence, the burden of proof, rules governing how to evaluate
damages, and how to determine a proper claim and claimant are covered
extensively in the Regulation. I felt confident before I met my first
claimant that I understood the Foreign Claims Act and how to implement
it according to Congress' and the military's intent.
Condolence Payments
The Condolence Payment Program in Iraq is an ad hoc program created
6 months after Operation Iraqi Freedom began. Because a substantial
amount of the harm civilians suffered in Iraq occurred, and continues
to occur, during lawful combat engagements, which is precluded from
compensation under the combat exclusion of the FCA, the U.S. military
realized they needed some system to provide monetary assistance for
civilian casualties. Of course, the creation of this ad hoc system was
not a foregone conclusion. In fact, originally, the U.S. Central
Command, the command responsible for Iraq, ordered solatia or sympathy
payments not be allowed in Iraq, meaning there was no supplement to
fill the gap left by the combat exclusion of the FCA. This order also
applied to Afghanistan. Because of this rule, when I began adjudicating
claims and meeting with Iraqis, I could offer no monetary assistance
for civilian casualties caused during combat operations. This lasted
until October 2003. Between May and September of 2003, I had to tell
more innocent civilian Iraqis than I care to count that there was
nothing I could do for them. I sent widows, widowers, orphans, and many
injured persons away with only a hollow ``I'm sorry.''
On any given day, more Iraqis brought cases to me arising from
combat action than claims arising from a non-combat act. During the
summer of 2003, several claims lawyers, including myself, voiced
concern through the chain of command about the numerous Iraqis we were
required to turn away without providing assistance. Eventually, the
command in Iraq recognized the problem and created the Condolence
Payment Program to offer minimal assistance to civilian casualties of
combat operations. The program was created under the Commander's
Emergency Response Program (CERP) fund. The CERP fund is one of the
main tools through which commanders implement reconstruction efforts in
Afghanistan and Iraq. Condolence payments constitute one, very small,
aspect of the CERP fund. Originally, under the CERP rules, I could
offer $2,500 per death and $1,000 per injury. Sometime around January
2004, authorization was granted to offer $1,500 for property damage.
After I left Iraq, the rules changed again, now a unit can offer $2,500
per instance of death, injury, or damage to property. A general office
may provide $10,000 for a death. However, there is no evidence based on
the documentation I have looked through, that a payment of $10,000 has
ever been paid.
I paid approximately $150,000-$200,000 in condolence payments. I
had one of the more visible and heavily visited claims in-take
locations so I saw a lot more claimants than other units. I worked
inside the Baghdad convention center--a major hub for Iraqis seeking
various types of assistance.
With the creation of the Condolence Payment Program I was finally
allowed to offer something--even if it was only a token sum--to
civilian casualties. However, the program failed in several respects.
Most significantly, I never had enough money to offer payments to all
deserving claimants. I recall numerous cases where I provided an amount
significantly less than what was authorized under the rules. I recall
one gentleman who filed a claim after his children were severely burned
by a cluster munition they found while playing in a field. I could only
provide the man with $1,000 for the significant injuries of his two
children. I once paid a woman only $300 after an explosion caused her
to lose a foot. Further, there were many people I could not offer any
money to even though I knew conclusively they were innocent civilians
harmed during U.S. military combat operations. I lacked money because
the vast majority of my brigade's CERP funds went to various
reconstruction projects. Understandably, my commander prioritized CERP
funds for hospitals, schools, or power stations, at the expense of
condolence payments. The perception was that fixing a school and
employing Iraqi contractors allowed funds to go further than paying a
widow for her husband's death. Because the same fund supported both
projects, the one of seemingly less importance got short-changed. On
average, I received only about $7,000 a week to spend on condolence
payments. However, some weeks I received nothing. It became nearly
impossible in my opinion for this program to meet its stated goals of
helping win the hearts and minds.
Another significant problem I encountered with the program arose
from the ad hoc nature inherent to the program because of the manner in
which it was created. There were no rules or solid guidance provided.
Some units and lawyers handled substantially similar cases in
drastically different ways. For example, different rules of evidence
and procedure were applied in adjacent areas of Baghdad. Some units
instituted very short time limits, such as 3 months, on when an Iraqi
needed to file a claim for a condolence payment. Some of the problems
with such a requirement are obvious: (1) many times survivors simply
cannot file a claim within that time limit because they are still
grieving or healing; (2) claimants may not be able to discover the
proper office to file their claim within that time limit; and (3) it
can take much longer than 3 months for a claimant to collect all of the
necessary documents and evidence. It should be noted that the Foreign
Claim Act has a 2-year statute of limitation.
Additionally, lack of rules and guidance hampered the attainment of
the program's goals because some units refused to decide cases where a
different unit caused the harm. This was true regardless of whether the
unit that caused the harm left Iraq or if it was difficult or
impossible for the Iraqi to find transportation to the other unit's
location. Also, some units simply did not offer payments for certain
types of cases. This wide birth of discretion created great disparity
in the application of the program. Obviously, the conflicting outcomes
created by these different reasons caused negativity to intensify and
nullified much of the goodwill produced by the Condolence Payment
Program.
Another problem concerns valuation. Numerous Iraqis expressed shock
that all I could offer was $2,500. Some even indicated they felt
insulted. I attended numerous District Advisory Committee meetings in
Karkh and Karadah where local politicians discussed pertinent issues to
their communities and meetings with local Sheiks. Every Iraqi I spoke
with on the issue expressed disbelief I could only offer $2,500 for the
death of a human being. Not one Iraqi I encountered ever said the
amount made sense or was equitable. The irony is that if an Iraqi filed
a claim with me because a military truck on a routine patrol hit the
man's parked car, I could pay him for the full value of his vehicle.
However, if the same man filed a claim because his 5 year old daughter
was killed by a stray bullet from a firefight involving U.S. forces, I
could only pay the man $2,500--if that. Binding a brigade to $2,500 in
every case limits the unit's ability to adequately assist in the most
cases. The artificial limit left survivors bitter and frustrated with
the process and in turn the U.S. military.
Historical Perspective
As mentioned above, the United States has long recognized the need
to fill the gap left by the combat exclusion of the FCA. The purpose of
the FCA--to win hearts and minds--was not furthered by the combat
exclusion. U.S. military attorneys and commanders have stated that
paying combat claims is essential to the military's interests in
repeated engagements since the Vietnam War. As one example, after an
incident involving the deaths of many Vietnamese in the city of Nha
Trang, judge advocates at U.S. military headquarters in Vietnam
convinced ground commanders that paying claimants would ``gain the
goodwill of the people,'' \2\ and that an ``effective claims program
supported the war against the guerrillas.'' \3\ While the military used
contingency funds in this particular case, Judge Advocates recommended
that U.S. law be amended to authorize combat related claims.\4\
Military lawyers continue to realize that offering combat claims is
important. In its after-action review of the first year of combat
missions after September 11, 2001, the U.S. Army's Center for Law and
Military Operations wrote, ``[C]ommanders believed that the payment of
legitimate claims helped win the hearts and minds of the populace and
enhanced their units' force protection postures.'' \5\ In each
protracted period of armed conflict involving the U.S. military,
including Grenada, Panama, Desert Storm, Somalia, etc., the U.S.
instituted some work-around of the combat exclusion. However, studying
each one of those cases demonstrated that as in Iraq since 2003, the ad
hoc fixes have not performed to the degree desired and not led winning
all the hearts and minds the military hoped to win.
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\2\ Frederic Borch, Judge Advocates in Vietnam: Army Lawyers in
Southeast Asia 1959-1975 41, (1st ed. 2003).
\3\ Id. at 40.
\4\ Id. at 40.
\5\ Center for Law and Military Operations, The Judge Advocate
General's Legal Center and School, Legal Lessons Learned from
Afghanistan and Iraq, Volume I: Major Combat Operations September 11,
2001-May 1, 2003 175, available at http://www.fas.org/irp/doddir/army/
clamo-v1.pdf.
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Solution
There must be a permanent, legislative fix to the gap in the claims
law. As long as there is not a permanent system in place, there will
never be uniformity from one conflict to the next or even from one unit
to the next within the same conflict. For each conflict the command
will have to again decide if, and what system, they will build. It
seems counterintuitive that an issue as important as providing
assistance to innocent civilians harmed by our military actions should
be so haphazard.
With a permanent system would come substantive guidance on the
standard of proof, rules of evidence, how to determine valuation,
protocol for units dealing with civilian casualties and examples of the
types of claims to be paid. Importantly, my call for a permanent system
does not mean that the Department of Defense is required to make any
payments. The department and the commanders on the ground should still
exercise discretion on if and when to make a payment. The important
thing is that a permanent system exists. One that will come with
statutory language and regulations. The various branches of military
would be able to make the program a part of its training. Lawyers and
commanders would be taught the importance of the program and how to
implement it successfully. In order for the program to be successful,
the implementer must be adequately trained. The Army provides abundant
training to judge advocates on how to pay claims under the FCA. This
allows the claims program to run efficiently and uniformly. A program
that does not operate efficiently and uniformly will not treat injured
parties with fairness and respect. The training must provide practical
guidance on the applicable standard of proof and other evidentiary
issues, as well as provide information on why the program is important
and why the claims officer must show empathy toward victims.
The $2,500 limit must be lifted. The program must contain a
mechanism to provide a sliding scale of payments. This allows more
money to be spent in deserving cases. The important point is to ensure
the amount is high enough to demonstrate genuine condolence and provide
enough resources for the survivors to recover from the loss in the
short-term. Establishing guidelines will obviously be difficult.
Valuation will always be subjective. However, guidance can be provided
in the same way guidance is given to judge advocates in determining
valuations under the FCA. A lawyer can be effectively trained to
evaluate each case by its set of facts and circumstances to find an
appropriate amount and make an informed recommendation to the commander
who would ultimately be responsible for authorizing a payment.
Along with lifting the ceiling for awards, a claimant must be able
to appeal the decision when he or she feels the amount offered is
inadequate. Similarly, if the claim is denied outright, the claimant
must be offered the chance to file additional materials and appeal the
denial to a higher authority. Transparency is essential in this
process. It is important the system be fair and open. If a claim is
denied, the claimant deserves to know the basis for the decision and
have that decision provided to him or her in writing. None of these
attributes existed in any of the ad hoc systems used over the decades,
including condolence payments. Both appeals and written notices of a
decision are provided under FCA.
By legislating a new system, funds would be separate from any other
reconstruction projects associated with the military's involvement in a
country. As with the FCA, all the funds needed would be available to
all the appropriate claimants. This will also ensure people receive
payment in a timely manner. Timely payment is essential; often times a
family's suffering continues growing exponentially when help is
delayed. Also, having a separate and permanent claims system for this
sort of harm ensures more attention will be given to the victims which
will help the United States achieve the all important counter-
insurgency goal of winning hearts and minds.
The single greatest achievement I hope for in instituting a
permanent condolence payment system is that the program will be
implemented uniformly. Permanence will allow the program to be
established as quickly as a foreign claims commission is established at
the start of any combat engagement--within 2 weeks instead of 4 to 6
months. A permanent program would necessarily be Armed Forces-wide,
ensuring that it would be used the same way by all units throughout a
combat zone. All victims would be treated equitably. Without a
permanent program, such payments will always be haphazard and arbitrary
based on each commander's discretion. The senior commanders of an
operation may or may not decide to institute a program--as CENTCOM
prohibited solatia in 2003--or, senior commanders may piecemeal a new
program together--as CJTF-7 did with ``solatia-like'' payments. A
permanent system will nullify this arbitrariness, which will
demonstrate the United States is committed to treating innocent victims
with dignity and respect.
This type of legislation would represent good public policy, build
goodwill on the ground, provide documentation on civilian casualties,
ensure adequate training, guidelines, and institutional knowledge, be
transparent, treat all civilian victims fairly and would ensure cash-
in-hand for victims following a tragic event to help them meet
immediate needs. After meeting hundreds of innocent victims of our
nation's military operations in Iraq, I understand firsthand how great
the impact of armed conflict can be on individuals and families. The
U.S. military has long known that we cannot simply categorize these
people as statistics. This is why they repeatedly attempt to close the
gap left by the combat exclusion of the FCA. However, these ad hoc
systems have not led to the desired results. We need a new system that
ensures every innocent civilian casualty is treated with respect and
justice.
Senator Leahy. Thank you very much.
In some ways, the bad news is that it has been an
evolutionary thing, and in some ways, that is the good news
because in many areas it has improved. There is still a long
way to go.
Ca, can you tell Mr. Suong and Mr. Phuong that they remind
us how much we have learned from them and that they show us
what is possible? They give hope to the millions of others who
have disabilities. Both my wife and I appreciated meeting them
a few evenings ago.
Mr. Tran. Mr. Suong, sir, said they represent--for Mr.
Phuong, the both of them are very grateful. This is a dream
come true for them. They never dreamed that they can be here in
this country, let alone participation or attend this meeting,
hearing today.
Senator Leahy. Well, look at yourself. You came here
sweeping floors for, what, $2 an hour and have your own
business and look what you have done to help people in Vietnam.
I think that what you are doing also helps, as various
Presidents have said, with the United States-Vietnamese
relationship. Has the Vietnamese Government supported you in
this regard?
Mr. Tran. In this particular area that disability and
related, we have the full cooperation and support of all levels
of the Vietnamese Government, and that is very key for our
success in the program that we implement in Vietnam, sir.
Senator Leahy. There is an enormous number of disabled
people in Vietnam, and this program alone is not going to be
able to help them all. I assume the Vietnamese Government has
programs of their own, too, to help. Is that correct?
Mr. Tran. Yes, they do, but it is fairly limited. In the
area of rehabilitation, physical therapy service and
rehabilitation, they lack of the technical. And that is where
we enlist the technical know-how from various American
institutions here like the National Rehab Hospital, the
National Institutes of Health (NIH), and others.
Recently, we teamed up with the school, the Bloomberg
School at Johns Hopkins to bring in the American experts in the
field to go out there to do the training. The Vietnamese
Government very much wanting to have the American technology
and skill in the area so they can do it themselves.
And right now, with the help, the grant from the funds, the
Leahy War Victims Fund, we are in the last phase of working
with the Vietnamese Government's drafter to finalize the new
comprehensive disability law. Just 2 weeks ago, we have groups
of three lawyers, professor from Syracuse school, university to
work with the Vietnamese for 2 weeks in workshop and training.
So it has come along, and this is very significant.
According to the initial report from the team that Vietnam,
if this law is enacted in October 2009, it will be the first
and the best disability law in the whole world.
Senator Leahy. Let us hope. I think I am going to go back.
Mr. Chromy, I read your testimony, all of which, of course,
will be part of the record.
You noted the narrow focus of the program on victims of
U.S. and coalition military operations, and you say there are
many other civilians who are killed or injured by insurgents
who also need help. What would you suggest? What can we do?
Mr. Chromy. I think the answer to that lies in my last
statement. I think we have to work together with the Government
of Iraq to develop a capacity within Iraq to continue to assist
victims over the long period of time and to assist all the
victims.
The U.S. people and this Congress have invested a
considerable amount of money in this, and we know it works. It
is successful. The staff are trained. They are capable of doing
it. We have tried to get the attention of the national
Government of Iraq to focus on this, to no avail. Even our
requests to meet with the Ambassador here have not generated a
response.
And so, my thought would be that with the interest of this
subcommittee and with the partnership with the new
administration in USAID and so on, if we could jointly approach
the Government of Iraq at a senior level and say, look, we have
done this. We have gone this far. It is going to be an ongoing
effort, and we ought to co-invest in this in the future and
build the capacity so that the staff that are trained, the
Iraqi staff, can in the future work for either an NGO or
government organization there to continue to provide this
service over the next generation.
Senator Leahy. I think your testimony here today will
probably come to their attention, and you may be able to get
the meeting. We will help you on that.
Mr. Chromy. Okay.
Senator Leahy. Mr. Tracy, would you agree with this, what
Mr. Chromy is saying, the need to expand and continue to work
with others?
Mr. Tracy. Oh, absolutely. I mean, I think that part of the
problem, at least in my experience in the military, is there is
definitely a disconnect between the military and some of the
other civilian agencies and civilian operators that are
operating inside the country. I am not just talking about
working with Iraqis, but just the United States working with
other United States, you know.
So many times in my brigade in Baghdad, we sort of would
see USAID or other individuals around but have no idea what
they were into or we just weren't talking to each other, in
other words.
Senator Leahy. Well, I commend you both for doing it. At
times, it must feel almost like Sisyphus pushing that rock up
the hill.
But in that regard, Ms. Gaston, how difficult is it to find
Afghans to implement the Civilian Assistance Program? If we had
more resources, would it be difficult to recruit more Afghans
to do this work?
I ask that because in some areas, I see Afghans who might
help us become exposed to danger just for helping us. So,
assuming you had more resources, can you recruit more Afghans?
Ms. Gaston. Yes, I actually do think that the resources
would be helpful in recruiting. I mean, most of what I did in
the last year was in the field and just talking to the
different ACAP staff, the Afghans who are actually out there on
the ground implementing it. A lot of them were really afraid
for their own security, just given what they were asked to do
for the program.
And they, a lot of them, if they got a more generous offer,
they decided--or even equivalent offer to work for another
program that didn't force them to take those security risks,
they would often do that because they were afraid, ``If
something happened to me, what happens to my family?''
So I do think that resources would help in terms of
recruiting the people we need.
Senator Leahy. You are still going to have people worried
about their own safety?
Ms. Gaston. Well, you do, definitely. And you should. I
mean, I think it is something that the ACAP administrators are
very conscious about in Kabul. They try not to put their staff
at risk or go anywhere that they wouldn't themselves go.
ADDITIONAL COMMITTEE QUESTIONS
Senator Leahy. Well, I have to go back to the Senate floor.
We have something on the floor that may affect all of this, our
budget resolution.
[The following questions were not asked at the hearing, but
were submitted to the witnesses for response subsequent to the
hearing:]
Questions Submitted to Jonathan Tracy
Questions Submitted by Senator Patrick J. Leahy
Question. As I understand it, for the first 5 months of the Iraq
war there were no condolence payments. For whatever reason, Pentagon
officials in Washington felt it would not be ``culturally
appropriate''. That was one of the many failures of planning for that
war. Only when field commanders determined it was needed was a program
put into place, but without hardly any guidance. What if that decision
had not been made and there was no program for condolence payments in
Iraq--what difference do you think it would have made?
Answer. I believe that a decision to never allow condolence
payments in Iraq would have been a tragic mistake. It was a mistake to
not authorize such payments during the first 6 months--to not allow
them at all would have been unconscionable and very damaging to U.S.
military interests. There are two components to this issue. First, it
is important morally to offer some sort of monetary aid as a symbol of
sympathy for a person's loss and to afford them some measure of
opportunity to rebuild their life after tragedy strikes. Second, and
very important for the U.S.'s military interests, is that offering
condolence payments, or some other type of monetary aid, to civilian
casualties is an easy and effective way to build a positive
relationship with the local population. Military planners and
commanders understand how essential it is for the military to build
trust with the population. Not offering condolence payments can quickly
destroy trust and breed animosity amongst the people against the U.S.
military in places like Iraq. Therefore, it is my belief that had the
military not eventually created a program to offer condolence payments,
animosity would have grown and likely bolstered anti-U.S. and anti-
coalition forces.
Question. Is it fair to say that condolence payments are
essentially a practical and necessary way for commanders in the field
to get around the combat exemption in the Foreign Claims Act, for lack
of any other authority in law?
Answer. It is fair to say that the condolence payments are the way
commanders get around the combat exemption of the Foreign Claims Act.
This issue is not new. In repeated U.S. military campaigns the combat
exemption of the FCA has posed a real impediment on a commander's
ability to build trust and goodwill with the local population. In
military operations including Korea, Grenada, and Panama different ad
hoc system have been used to close the gap left open by the combat
exemption of the FCA. The problem is that the FCA handles one sort of
case: non-combat, whether from an accident or a criminal act. There is
nothing in law that authorizes payment of monetary assistance for harm
to an innocent civilian bystander resulting from a lawful combat
action. Unfortunately, while well-intentioned, the various ad hoc
systems, including the condolence system in Iraq, have failed to
adequately close the gap. Most of the reasons for the failures arise
from their ad hoc nature: there is a lack of guidance, no uniform
rules, little training for implementers of the systems, a lack of
continuous funding, and no oversight.
Question. My staff has been drafting legislation to create a
permanent authority for the kind of condolence payments you have
described, so the Pentagon does not have to reinvent the wheel every
time the United States sends troops into combat. How do you think such
an authority, spelling out in general terms the procedures for
providing condolence payments to encourage consistency, and authority
for funding, would have helped you in Iraq?
Answer. Such a system would have been immensely helpful. First,
with such a system in place while I was a Judge Advocate in Baghdad in
2004-2005, I would not have had to send everyone home with no aid for
the first 6 months. Second, a permanent system would be a significant
improvement over the current condolence payment system. There would be
regulations and uniform standards for things like evidence, valuation
of damages, and standard of proof. This would ensure that all persons
would be treated equally and equitably. Also, a permanent system would
create permanent funding. Under the condolence payment system then in
place, I never had enough cash to offer money to all eligible persons.
A legislated system would also ensure that the military would train
judge advocates and commanders on how to use the system long before
they deployed and could use the program while preparing for deployment
at training centers. Finally, a legislated system would require
transparency. The civilian claimants would be entitled to participate
in the process by seeing the decisions made in their cases and
appealing to higher authorities when necessary. I would like to stress
that any legislated system would look a lot like the FCA in the sense
that it would not be mandatory for the military to use the system in
any given operational setting. Instead, it would be a program that they
could implement and could implement effectively since everyone would
understand the rules and procedures without having to recreate a system
in every operational setting.
Question. If the Pentagon had agreed to testify I would ask them,
but perhaps you can say, based on your experience, whether you think
such an authority in law would be viewed positively or negatively by
Army JAG officers?
Answer. I can only offer my opinion about what currently deployed
judge advocates would think. But based on various articles I have read
which were written by judge advocates and by reading numerous after-
action reviews authored by both judge advocates and commanders, I think
the idea of having a permanent and fair system would be welcomed by the
military lawyers and commanders. The military understands the need to
have such a system because it helps build trust within the community.
The question is: can the United States do better? I believe that
legislation in this area would allow the military to do a significantly
better job, which will ultimately allow them to meet their military
objectives more effectively.
CONCLUSION OF HEARING
Senator Leahy. So we will stand in recess. But I want to
thank all of you for doing this. I appreciate the testimony,
and I am also going to a meeting with the other chairmen in the
Senate this afternoon. I am going to bring up some of the
things I have learned here.
So thank you.
We stand in recess.
[Whereupon, at 11:47 a.m., Wednesday, April 1, the hearing
was concluded, and the subcommittee was recessed, to reconvene
subject to the call of the Chair.]
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