For Afghan Victims, U.S. Airstrike Is Followed By Anger, Confusion
A few months ago, the U.S. military gave Zabihullah Niazi $3,000. He lost his left eye and left arm when an American AC-130 gunship repeatedly fired shells into the hospital in which he worked in northern Afghanistan.
The money was what officials term a "condolence payment," an expression of sympathy and sorrow for injuring Niazi when the U.S. military mistakenly hit the Kunduz hospital, killing 42 people.
Now, more than six months afterward, Niazi says he intends to return the $3,000 — "in front of the media guys" — as a protest over the way the U.S. military is treating victims of the attack.
Although he believes he can no longer work because of his injuries, Niazi says that his discomfort at accepting what some call "sorry money" is only making him feel worse. He also regards the amount as "ridiculous and insulting."
Niazi, 25, was a nurse at a Kunduz trauma center run by Medecins Sans Frontieres (MSF). In late September, the Taliban invaded the city. It took several days for the Afghan army, supported by U.S. air power and special forces, to drive them out.
During that battle, in the early hours of Oct. 3, Niazi was inside the hospital, resting after a shift, when one U.S. shell after another pummeled the building — incinerating some patients in their beds.
The Pentagon later described this prolonged aerial assault as a "tragic, avoidable accident," caused by human error, faulty computers and a communications breakdown.
President Obama apologized. Gen. John W. Nicholson, commander of U.S. forces in Afghanistan — who took up his post after the airstrike — traveled last month to Kunduz, where he "humbly and respectfully" asked forgiveness.
This admission of responsibility and regret was never likely to diminish the victims' suffering. Now, their pain is mingling with confusion and anger over the handling of their cases.
Condolence money is different from compensation. The $3,000 given to Niazi and others who were injured was a one-off payment; so was the $6,000 handed out by the U.S. military to the families of the dead. Around 200 of these small payments have been made.
Compensation hasn't been offered. Victims say MSF legal advisers have warned them that although they need and deserve compensation, the U.S. isn't legally obligated to provide it.
Akhtar Mohammed, 38, says he's been trying to find out about possible compensation for the death of his brother, Lal, a 33-year-old nurse with MSF (also known as Doctors Without Borders).
He's been told the Americans "won't pay compensation" and that this is "based on war zone laws and other legislation."
Mohammed, a farmer, says he is now supporting his brother's widow and four children, all under the age of 8: "This is hard for me. We are poor people."
Enayatullah Hamdard, spokesman on behalf of the 14 MSF employees killed in the airstrike, who included his father, has reached a stark conclusion: "They are cheating us."
Is the U.S. military cheating them?
U.S. officials say they have provided victims with all the necessary information and paperwork to submit claims, and that these will be adjudicated under the Foreign Claims Act (FCA).
This U.S. federal law allows for payments of up to $100,000. The situation, however, is complicated.
Lawyers for MSF, a global organization experienced in international law, are convinced the Foreign Claims Act does not apply in the Kunduz hospital case, because it contains an exemption for combat activities.
They also cite bilateral agreements between the Afghan government and the U.S. that provide American forces with immunity from any claims pursued within Afghanistan.
They believe the U.S. military is inviting claims (and raising victims' expectations, by doing so) that the U.S. does not, legally, have to meet.
The unpleasant truth is that the victims of the hospital strike have no legal right to compensation, according to MSF's legal advisers. That would mean the question of whether victims of one of the worst U.S. military blunders in the 14-year Afghan conflict will be compensated, and how much, could be decided by the Pentagon alone.
However, while the Foreign Claims Act doesn't require the U.S. to pay claims in this case, it also doesn't prohibit it from doing so, says Mary Ellen O'Connell, a professor of international law at the University of Notre Dame.
"Requiring victims to go through the claims process may reflect the changed character of Afghanistan for the U.S. legally — from active zone of armed conflict to something more akin to police support of the Afghan government," she said.
"It is a bit strange," says John B. Bellinger III, adjunct senior fellow for international and national security law at the Council on Foreign Relations and a former legal adviser for the State Department and National Security Council during the George W. Bush administration.
"The military obviously knows this is very sensitive," he says, "so I would be very surprised if they invited claims under the FCA if they plan to deny them. The fact that the military has invited the forms seems to suggest that they are prepared to pay under the FCA."
Among those anxious to know if he'll ever get any financial assistance is Mohammadullah Adel, 37. He says the U.S. hospital strike left him with head, throat, chest and stomach injuries. He is deaf in one ear, suffers headaches and is receiving therapy for trauma. He has a family of nine to feed.
Adel, a nurse, says he, too, was given $3,000 condolence money; he claims the American who handed him the payment told him: "I understand that Afghans, when they visit a patient, bring some gifts like rice, cooking oil and sheep. This is why we brought money for you."
As for compensation, Adel feels helpless: "I went to see the MSF a few times and told them that U.S. is a superpower. If they say they don't pay compensation, I don't have the power to get it by force."
The U.S. military isn't saying if it will pay compensation to the victims — or how it interprets the law.
"It's really not a matter of the U.S. military having a view ... on whether or not the Foreign Claims Act applies," said Brig. Gen. Charles Cleveland, the U.S. military spokesman in Afghanistan, in an email. "So, I don't think it is a question of policy. Rather, it is more of a question of law as to whether the claim is paid."
He declined to speculate whether victims' claims would succeed, but added: "We are aware that there are those who don't think the claims process will be successful under the circumstances surrounding this terrible mistake.
"The possibility that claims won't be paid based on the circumstances is one of several reasons why Gen. Nicholson [the U.S. commander in Afghanistan] is reviewing all options on how he may further assist the victims."
That acknowledgement — that claims possibly won't be paid — would come as no surprise to the victims. They have so little faith in the process that none of them have filed a claim.