The Strangest Tribe: U.S. Military Claims in Iraq

The norms and strategic calculations of American warfare increasingly support the compensation of civilians for their suffering in both combat and noncombat operations. Since 1942, through the Foreign Claims Act (FCA) system, the U.S. military has paid the claims of those injured, those whose family members had been killed, and those whose property had been damaged in noncombat operations. But civilians whose injuries result from combat operations have no right to compensation under either U.S. or international laws. Yet the Department of Defense (DoD) has in recent history made many such payments. In Vietnam, Panama and Grenada, the U.S. military set up ad hoc systems of compensation for civilian suffering from combat.¹ During the Korean War, the U.S. military made solatia payments from unit operating funds, and this program endured after the war, authorizing monetary "expressions of sympathy" where the DoD deemed it culturally appropriate. Both solatia payments and a system of condolence payments were authorized in September 2003 in Iraq and in 2005 in Afghanistan. Like solatia, condolence payments express sympathy, but they were paid out of the larger pot of money available to commanders through the Commanders Emergency Response Program (CERP). Ultimately, the United States paid millions of dollars in claims in Iraq and Afghanistan under these three programs.²

The expansion of the U.S. military's claims program in Iraq, as elsewhere, was generally intended to win hearts and minds, a goal viewed as especially crucial once a counterinsurgency strategy was officially adopted there. But in Iraq, the claims program was not only expanded to promote general goodwill; it was also intended to allow U.S. soldiers to take advantage of the Iraqi system of tribal settlement.³ In this system, the extended family of the victim of a death, injury or slight to honor gives up the right of revenge against the extended family of the perpetrator and reconciles with them after receiving a payment of blood money — in Iraqi terminology, a fasel (literally a "part") or diya (the Quranic term). Such payments by U.S. forces would limit violence against them by those whose civilian family members had been injured or killed in U.S. operations.

Were U.S. military claims payments in fact taken as fasels by Iraqis? If so, was this always the case, or was it only so under certain circumstances, such as when the payments were modeled in form and amount on fasel payments between Iraqis? I argue that Iraqis did sometimes take American payments as fasels but that the U.S. military payments system was not designed to take full advantage of Iraqis' willingness to do so. In many instances, soldiers, with the support of their superiors, did take the initiative to participate in the tribal system, and they benefitted from this. However, "settling" within the tribal system was never U.S. policy or standard procedure. There are many reasons for this, including a lack of knowledge of the system on the part of some soldiers, legal strictures, military regulations, and the pull of other elements of the mission. The Iraqi system of tribal settlement was also not functioning during the period of intense civil war of 2006-07, when tribal leaders had fled and militias held the upper hand on the ground in most of Iraq. When the U.S. military did seem able to take advantage of the system, it was when overall violence was low and when individual commanders understood it. It may also have been that U.S. claims payments could be presented more effectively as fasels early in the war, before the regulations surrounding such payments were fully developed. These conclusions are drawn from interviews with Iraqis and Americans, from soldiers' written accounts of the war, and from secondary sources. They are also based on my own experience working as a social scientist on several human-terrain teams in Baghdad between April 2008 and April 2009.⁴

Examining U.S. military claims payments through the lens of Iraq's system of tribal settlement contributes to the ongoing debate about the role of cultural knowledge in U.S. military operations.⁵ Of course, it offers yet another example to those commonly given — such as how dishonoring men during raids by pressing their faces into the ground in front of their families led them to seek revenge against American forces — of the usefulness of such knowledge. But, more important, it illustrates both the barriers to integrating cultural knowledge into decision making and the need for soldiers to balance cultural knowledge against other considerations. It may also assist in developing U.S. military claims systems in future conflicts, as similar forms of customary dispute resolution exist throughout much of the Middle East, Africa, Southeast Asia and even Latin America. In fact, these forms of customary law may not only be relevant to issues of designing claims systems where they are prevalent, but also to negotiating the peaceful end to conflicts in those places.⁶

IRAQI TRIBAL LAW

A tribe is, according to Faleh A. Jabar, "the oldest, most enduring and controversial social entity in the Middle East." Controversial because tribes are so flexible in form and function that, as Jabar concedes, they defy any meaningful attempt at definition.⁷ Certainly, Iraqi tribes have changed even in their country's brief history, adjusting (grudgingly at first) to the reality of the state, to shifting popular needs, to the various machinations by which Saddam Hussein maintained power and, as I argue here, at least for a period of time, to both occupation and the rise of militant religious groups. As for a working definition of a tribe in Iraq today, it may be best thought of as a rural-urban hybrid held together by kinship ties (real or fictitious), patron-client relationships and a set of shared customs.⁸

Iraqis disagree about the influence of tribes in their country's history and certainly about the role tribes should play in their future, but all agree that the influence of tribes waxes and wanes in opposition to the strength of the state. When the state is weak, tribal leaders and processes step in to fill the gap, especially to provide security and justice. Recently, the influence of tribes and their customary law grew when the Iraqi state weakened under sanctions and after the fall of the regime in 2003.⁹ Even those Iraqis alienated from or critical of the tribal system often found themselves unable to avoid it or in need of it, even in Baghdad.

Iraqi tribal law originates deep in the pre-Islamic era, but many of its elements have been adjusted to conform to understandings of shariah (Islamic law).¹⁰ The overall process of dispute resolution in tribal law is called sulh (settlement), a Quranic term. At the heart of the tribal legal system is the notion of "blood for blood." Those who have suffered have the right to respond with violence in order to restore the group's honor: dignity, public standing or "face."¹¹ Although female sexual behavior is considered everywhere in the Arab world to affect honor, in other areas, individuals and groups interpret the effect of incidents on honor flexibly, in ways that further their broader goals.¹² In general, however, most consider a failure to respond to obvious insults, killings or injuries as damaging to honor. Tribal law provides remedies for all types of disputes involving actions that are destructive of person, property or reputation, whether intentional or accidental.¹³

The group whose honor is the concern of the individual is not the tribe but the vengeance group, or khamsa. It literally means "five," as it includes all males descended from an ancestor five generations back. If a member of the khamsa is the victim of a crime or serious insult, the entire group is shamed if it does not take revenge. Ideally the victim's khamsa would kill the perpetrator or, in his absence, his close male relatives. If they cannot be reached, revenge may be taken against any males of the perpetrator's khamsa. If a dispute between khamsa from two different tribes broadens, the overall tribe may become involved, creating a risk of war.¹⁴

Despite this sanction of violence, murder and warfare in Arab tribal society are fairly uncommon. This is because tribal law offers the khamsa an opportunity to restore its honor without violence, through the payment of a fasel. The families of both victim and perpetrator enter into a mediated negotiation that establishes the amount. The fasel does not replace the lifetime earnings of the lost family member, nor does it represent any valuation of a human life. Rather, it is the cost of restoring the honor of the victim's khamsa. Thus, each step in the operation of Iraqi tribal law — the use of mediators, the acceptance of responsibility by the perpetrator, the negotiation of an amount of blood money agreed by both parties, rituals of respect and reconciliation — also help to restore honor. Only with their honor once again intact are forgiveness and healing possible for the victim's kin. The tribal process prevents further violence and promotes enduring communal reconciliation; those who accept a fasel give up their right to speak openly of the problem again. Those who take revenge after accepting a fasel pay a much larger amount to their victims and risk broader communal violence against them.¹⁵

The basic process of tribal dispute resolution is fairly common across Iraq's tribes and, indeed, throughout the Arab Middle East. Within three days of an incident, someone speaking on behalf of the perpetrator must make contact (often through a sheikh) with the victim's family and begin negotiations. Those who wait may still settle, but they will be in danger after three days, and the settlement may cost them more.¹⁶ Representatives of the two parties, usually their sheikhs or Iraqi men who specialize in mediation, then establish the agreed-upon facts of the case and begin to negotiate a fasel, consulting at each step with the two parties to the dispute. These negotiations may be finalized at a large gathering of both tribes and other notables where, once an amount is accepted by both sides, rituals of reconciliation will take place: a formal apology by the perpetrator's representative, the sharing of bitter coffee and a meal, and in some traditions the tying of knots in a white flag.¹⁷ The operation of Iraqi tribal law is quite flexible. Sheikhs may negotiate in pairs or groups; negotiations may be finalized publicly or privately; settlements may be influenced by history, the circumstances of the incident or surrounding events. However, in their discussions with me, Iraqi sheikhs suggested that three elements are particularly important: the offer of a negotiated payment, the acceptance of responsibility by the perpetrator, and a process that does not further dishonor the victim's family.

AMERICAN FASELS?

Did Iraqis ever accept U.S. military condolence, solatia and FCA payments as fasels, giving up their right of revenge for civilian deaths and injuries caused by U.S. soldiers? The restriction here to civilian deaths, and not those of Iraqis engaged in attacking U.S. forces, is an important one. Not only did the U.S. military not pay condolence payments in such situations, but Iraqi tribal law also suspends the system of negotiated payment during times of declared warfare. Iraqis seldom attempted to make claims for those hurt or killed while fighting.¹⁸ I argue that Iraqis did accept such payments as fasels, especially when U.S. payments were negotiated, came with an acceptance of responsibility, and were not paid in a way that further dishonored the victim's family. However, the U.S. military was inconsistent in applying these three criteria to its claims payments across the course of the war.

The fasel is negotiated.

In Iraqi tribal law, the fasel should be agreed upon by both parties to the dispute, not imposed by one on the other. Negotiations in the tribal system can be difficult and lengthy, a sign that both parties have influence over their outcome. This is not to suggest that there is no coercion in the tribal system or that certain parties may not drive a hard bargain, but the social leaders who manage the system of tribal law generally work to minimize these elements so that a settlement will result in true reconciliation.

U.S. military payments to Iraqis were rarely negotiated. Both condolence payments and solatia were capped at $2,500 for a death or injury. While higher command could authorize condolence payments of up to $10,000, this was very rare.¹⁹ As for FCA payments, they had no firm upper limit, but the Center for Civilians in Conflict argues that, in practice, FCA limits were influenced by the solatia/condolences cap.²⁰ For many units during the war, Iraqis made claims and then returned later to pick up whatever amount had been assessed for them, if any. While FCA payments could be appealed, solatia and condolence payments could not. Moreover, Iraqis were offered no written rationale for why their requests for solatia or condolence payments were denied or paid at below the $2,500 limit.²¹

In at least a few cases, however, especially early in the war before condolence payments were systematized, U.S. payments were negotiated. In November 2003, U.S. soldiers guarding the District Council building in Sadr City killed the district council chairman because he refused to relinquish his weapon at the door.²² The U.S. military paid 40 million Iraqi dinars (ID) to his family, approximately $10,800 at the time, an exceptional amount for a condolence payment. This amount was established through negotiations on the tribal model. The commander of the responsible unit contacted a local police chief, who contacted the chairman's sheikh, who contacted the family. The police chief and sheikh carried negotiating positions back and forth between the family and the commander, who got approval for each increase from his superiors. The soldiers involved in the process understood, although it was never stated outright, that if they didn't settle, they could expect to be attacked by members of the chairman's khamsa.²³

In the Iraqi tribal system, when the amount of the fasel has been agreed upon, the supporters of the victim and the perpetrator, along with mediators and important members of the community, typically conduct rituals of reconciliation. These vary somewhat across the Arab Middle East, but always include the consumption of food and drink together, usually bitter coffee and a meal. In tribal culture, an individual will not share food with someone with whom he still has an outstanding dispute.²⁴ Iraqis intending to take revenge against Americans despite having received payments would have been unlikely to share meals with them, yet Iraqis did eat with Americans who delivered payments. When the soldiers in Sadr City delivered the fasel to the chairman's father, he offered them lunch, which they accepted. The unit never experienced any subsequent violence traceable to that incident.²⁵

Obviously, the U.S. military faced many barriers to negotiating its claims payments. First, the overall amount of funding available for payments was often quite limited, which meant that claims payments had to be rationed out carefully, making their parameters more rigid.²⁶ Of course, so too did the $2,500 cap. There was little room for negotiation below this amount, already at the bottom of the range for fasels in Iraq. Second, there was some value in the predictability that came from avoiding case-by-case negotiations; if payments varied too much under similar circumstances, those who received less might feel cheated.²⁷ And, indeed, the tribal system also values consistency, which is established through tribal codes that set forth what fasel a tribe may demand under specific circumstances (though bilateral tribal agreements for special amounts do exist). Finally, during much of the war, few units had the manpower or time needed to negotiate. The condolence payment made in the Sadr City case was probably exceptionally high because it was paid very soon after condolence payments were authorized, when there was little oversight.²⁸

The fasel is an appropriate amount.

In negotiations between Iraqis, the amount of a fasel is influenced by many factors: the amount tribes state in their laws that they will demand for certain types of incidents, the particulars of the incident, the identity of the victim, bilateral agreements between tribes, precedents, and the circumstances of the settlement. Of course, prevailing economic conditions may also influence amounts. Over the course of the U.S. military presence in Iraq, wartime inflation and the negotiation of fasels by inexperienced sheikhs drove up the average amount, according to Iraqis.²⁹ Each case is unique, but the range of an Iraqi fasel in 2008 seems to have been between 10 and 50 million Iraqi dinars, or $2,000 to $12,000.³⁰ The Zobai legal code sets the base fasel for male members of the tribe at 10 million Iraqi dinars, but the copy I was able to obtain was written before the start of the war. In the fall of 2008, a sheikh from another tribe told me that he was working on a fasel between two Iraqi clans for a death by negligent discharge that would probably be settled for 5-10 million Iraqi dinars, but this was, he explained, an accident. Therefore, it was less expensive than it would have been had there been any hint of malicious intent.³¹

Based on this information, the U.S. military's cap on condolence payments and solatia of $2,500 puts these payments at the very low end of the acceptable range for a death, especially one with some element of intent, such as shooting someone approaching a checkpoint too quickly. The origins of and rationale for the $2,500 cap on condolence payments and solatia in Iraq have never been made public. This amount may have been appropriate under some circumstances, and it was a significant amount to poorer Iraqis, but it was not always culturally appropriate, especially where the facts of the case were particularly difficult for the family. The fact that some Iraqis rejected American payments because they were too low illustrates this. Harith Al Dhari, the sheikh of the Zobai tribe who later became a figurehead for the Sunni insurgency, was offered $2,500 for the death of his nephew in Fallujah in 2003. He rejected the money, citing the $1 million paid in compensation by Libya to victims of the Pan Am flight as his reason.³² Of course, Al Dhari was a prominent insurgency leader, so this is a problematic case; however, there are accounts of other Iraqis rejecting American condolence payments as well.³³ Their rejection supports my contention that they viewed them as fasels, creating reciprocal obligations.

Many U.S. soldiers felt that the $2,500 cap was inappropriate. Jonathan Tracy, a soldier who handled approximately 1,500 to 2,000 condolence payments in Baghdad in 2003-04 and testified before Congress about his experience, recalls that many Iraqis expressed shock at the limit of $2,500 for deaths: "Not one Iraqi I encountered ever said the amount made sense or was equitable."³⁴ Richard Welch, a soldier who headed a U.S. military tribal-outreach office for six years, felt that even offering the $2,500 risked creating a further insult to honor and an impetus for revenge.³⁵ Pete Mansoor, commander of a brigade in Baghdad in 2003-04, paid the maximum amount possible to an Iraqi woman after his soldiers had killed three members of her family when their car did not stop at a checkpoint. "It might have been a lot to her, but it was not enough. Especially when you think that it was a drop in the bucket of what we were spending overall. It was heart-wrenching."³⁶ The imposition of the amount, the ad hoc nature of value assessment, and the fact that many claims were denied without explanation all undermined the benefits that claims payments might have offered.³⁷

This is not to say that Iraqis never accepted smaller payments as fasels. After the civilian deaths in Fallujah on April 28, 2003 (when the 82nd Airborne killed 17 and injured approximately 70 in a crowd gathered outside their headquarters), the U.S. military on average paid $1,500 for a fatality and $500 for an injury to 26 of the families that suffered losses. One family received $2,500 for the loss of the head of their household, a father of seven. Yet the Iraqi police chief in the area considered the payments to have played a role in reducing violence in the city.³⁸ In late 2003, north of Baghdad, soldiers shot at what they believed were insurgents hiding in the bushes near where an IED had recently gone off, but they killed two young sisters from a village near their base. Although the girls' village had previously been quiet, each night for a week after their deaths, mortars were shot from their village into the base. The unit's commander ultimately paid the girls' family $2,000, an amount that was suggested to him by the local police chief. The payment was delivered at a meeting modeled on the tribal system. The mortars stopped immediately, and it was six months or more before the base had any problem from the village again.³⁹ The girls' family was very poor, and the American soldiers handled the payment well, both of which probably encouraged the family to accept the amount (the police chief may have checked it with them in advance). But the fact that these were girls is probably decisive here; in many Iraqi tribes, the fasel for a woman is half of what it would be for a man.⁴⁰ Certainly, under some circumstances, the amount the U.S. military was willing and able to pay was acceptable, but it was never generous. If it had been, this might have compensated somewhat for the fact that it was not typically negotiated.

The perpetrator accepts responsibility.

In the tribal system, after a death, injury or insult, the perpetrator must accept responsibility and apologize. This is essential, obviously, to the restoration of the honor of the damaged group and thus to the overall settlement.

Iraqis consistently expressed how important it was to them that Americans accept responsibility and apologize for deaths, injuries and property damage. Two days after the fall of Baghdad, the Marines bombed the house of a sheikh of the Al Kharbit, killing 21 members of his family. The sheikh cited the Marines' refusal to apologize for the deaths as the cause of the tribe's subsequent attacks on U.S. forces in Ramadi.⁴¹ Marine Major General John F. Kelly, interviewed about his time in command in Al Anbar following April 2003 U.S. military shootings in Fallujah, recalls:

Everyone when they would talk to me, sheikhs, policemen, army guys that we would deal with [told me that] it all came down to that April '03 "massacre," as they called it. ... [That] was the point at which they were convinced we were bad people, "we" meaning the Coalition. ... [T]hey couldn't work with us because we had gunned down 77 people — this is them talking — and didn't apologize, wouldn't admit that we had done something wrong.⁴²

When the U.S. military did take responsibility for its actions, the Iraqis were often willing to reconcile. In the spring of 2008, when an American sniper shot a Quran, defaced it and left it for the Iraqis to find, sheikhs from the area stressed that the only way to prevent violence was for the United States to take full and open responsibility for the soldier's action and to apologize. The brigade commander, higher officers and ultimately President Bush did this, and sheikhs throughout Baghdad referred constantly to the incident as one the U.S. military had handled well, avoiding violence.⁴³

Although they appear to have received no direct guidance on this issue, American soldiers were not supposed to apologize when delivering payments, since doing so would open up the U.S. military to the possibility of legal action. Military regulations were very specific about condolence and other payments not being apologies, but rather "expressions of sympathy." ⁴⁴ Yet many soldiers, feeling a real sense of responsibility or understanding that a clear acceptance of responsibility and an apology could affect their unit's safety, did apologize to Iraqis when delivering claims. When they did not, their interpreters would sometimes entrepreneurially apologize for them.⁴⁵

In the Sadr City case, the battalion commander for the area delivered the payment to the chairman's family and apologized, taking full responsibility for the death.⁴⁶ Soldiers in the Dagger Brigade in 2008–09 personally delivered many condolence payments and expressed what Iraqis considered to be apologies, even when the claims were for deaths or injuries caused by Special Operations Units over whom these soldiers had no control. Iraqis I spoke to who were present at these meetings would mention that certain soldiers "had used the right words to calm the situation," a reference to these soldiers' acceptance of responsibility.⁴⁷

After the death of the two girls north of Baghdad, the local police chief helped the unit arrange a formal meeting with the family. The police chief was very explicit in telling the commander how to handle this meeting. First, the commander was to tell the story of what had happened as he knew it. Since the commander knew that American soldiers had caused the deaths, this advice was, in essence, to take full responsibility for them directly and openly. The police chief stressed that the family would focus on the deaths and their causes. The commander's task was to move the conversation gently away from this topic and towards the family's own pain and suffering. He should not allow them to associate the money with the person who was lost, but should present it as something to help alleviate the family's suffering. Throughout the conversation, the tone should remain very solemn, the soldiers were told. The police chief suggested that the soldiers rehearse the meeting before holding it, and they did.⁴⁸

The police chief, by encouraging American soldiers to behave as an Iraqi tribe would under the circumstances, was attempting to increase the chance that the family would agree to settle. He encouraged them, for example, to present their payment as a fasel, not as compensation for the people they had lost. As an Iraqi sheikh experienced in negotiation explained, "You can never pay the price of a human soul; it is too valuable. So the family has to accept that the fasel is not that. It is a payment for forgiveness and for moving forward."⁴⁹ At the end of the discussion between the family and the soldiers, the police chief, who was serving as the mediator for the Americans, stepped in and made a speech about how the American forces understood suffering because they had lost so many of their own in Iraq. The unit, he told the family, was a good one that felt terrible about its mistake. Again, this stress on the common suffering the incident has caused, the basic goodness of the other side and the fact that the incident was not evidence of some trend towards future trouble are all classic elements of the rhetoric of tribal settlements as described to me in 2008-09 by Iraqi sheikhs in interviews. After accepting the fasel, the family thanked the soldiers for taking the time to talk to them, for understanding their pain, and for making sacrifices themselves in Iraq.⁵⁰

The settlement process does not shame the victim's family.

The norms and processes of Iraqi tribal law seek to prevent the victim's family from suffering further shame. Not only does this limit the risk of further violence by encouraging the victim's family to accept a fasel, it also keeps the cost low. For example, the representative of the perpetrator reaches out to the victim's family first, so that they avoid the indignity of having to ask for their rights. Mediators are used, so that the family does not suffer the dishonor of being face to face with the perpetrator or his immediate family. Mediators use respectful language with the parties as they discuss the possible terms of settlement. Important individuals (descendants of the Prophet, government officials, religious leaders, sheikhs, high-level military officers) may attend the final settlement gathering to honor the victim's khamsa. This can make settlement more likely and directly reduce the fasel, which the victim's group may "discount" for the honor conferred.

Across the length of the war, some U.S. military units adopted these practices when dealing with the families of civilian victims, especially the use of intermediaries. In both Sadr City and the settlement for the girls, the unit involved used a local police chief as an intermediary. No American soldier dealt with the chairman's family in Sadr City between the time that they took the father to identify his body and when the fasel was agreed upon.⁵¹ This exactly follows a model of behavior for Americans within the tribal system that was suggested by an Iraqi to counterinsurgency expert David Kilcullen. If Americans wanted to benefit from the tribal system, Kilcullen was told, they should quietly approach a local sheikh and tell him that they want to pay a fasel. That sheikh

will then act as your broker. He will not tell the people that he has been approached by you. Instead, he will say to them "this happened in my area, and so I will take it up with the Americans to resolve it." He will then negotiate with the victim's sheikh on your behalf. You would not attend the negotiations. Maybe right at the end, once it has been resolved, you would go to pay the diya.⁵²

Mansoor engaged sheikhs in helping to reconcile with the families of those his troops killed or injured. The benefit of this was not only that the family gave up their right of revenge; it also strengthened the influence of those sheikhs willing to work with the brigade.⁵³

David Scholl, a former Special Forces soldier who was in Iraq for the entirety of the war working as a negotiator for Western companies that killed or injured Iraqis, conducted many fasel negotiations. Fluent in Arabic and familiar with the tribal system, Scholl represented Western companies he worked for on his own. He went through the traditional steps in settlement, verifying the parties involved, determining which sheikh would be negotiating on their behalf, going back and forth between the sheikh and the companies with various amounts, and delivering the negotiated payments. "I knew the cost of the fasel would go up if anything I did during that process dishonored the family, so I was very careful." At stalemates, just as with other Iraqis, the sheikh working with Scholl would bring in a well-known mediator to give his opinion about the agreement.⁵⁴

Some U.S. soldiers also came to understand the importance of being proactive within the three-day limit of tribal custom. The commander in the case of the two girls did not know this custom and so waited a week to settle. However, after the Sadr City incident, the U.S. military immediately asked a local police chief to put them in touch with the family's sheikh. "We had three days before it was 'game on' for them," a soldier involved in the settlement process recalled. Scholl always made contact with the sheikh of the victim's family's first and within the three-day period, because he knew that to do otherwise would have risked a settlement or raised its amount.⁵⁵ By following these practices of tribal settlement, Americans signaled to Iraqis that they sought real reconciliation.⁵⁶

Yet, while many American soldiers understood the benefits to be gained by following the tribal system, too often the American payment process actually further dishonored the victim's family. In the vast majority of cases, Iraqis had to initiate claims processes themselves. This involved traveling to U.S. bases or centers to turn in paperwork and then returning to pick up their money, both of which might be dangerous and were certainly difficult and even humiliating trips involving checkpoints, risk of death and personal searches. A 2004 article in Newsday, ironically titled "Marines Honor 'Blood Money' Custom in Iraq," describes Fallujans forced to fill out lengthy paperwork and wait in lines to receive condolence payments. These are distributed by a glowering Marine unhappy because the city is not providing intelligence about insurgents. He "does not entertain discussion" and is not authorized to go above $500. One Iraqi refuses the money while the journalist is present.⁵⁷

There are many reasons that U.S. soldiers might not follow the specific practices of tribal law developed to make settlement more likely. As in the case of the fasel for the two girls, they might not know about them. Yet the fasel payment in Sadr City took place just nine months after the U.S. invasion, and by that time many in the U.S. military clearly understood what a fasel was, how to pay one, and what benefits it brought. "We were doing this all over the place then," a soldier in Sadr City at the time commented. "Contrary to what people think, we got smart about those cultural things really fast."⁵⁸ But the U.S. military was notoriously ineffective in Iraq in transferring cultural knowledge from one unit to another (despite best efforts and supportive technology and programs), so this knowledge may not have been shared or preserved. According to Scholl, "The Iraqis tried to engage the Americans in what they viewed as a dignified, historical process of dispute resolution. They tried to use that cultural infrastructure to deal with us, but the U.S. military was too inept and ignorant to participate."⁵⁹ Alternatively, soldiers may have known how to act within the system but simply preferred not to.

Finally, participating explicitly in the tribal system seemed to many U.S. soldiers and most civilian officials in Iraq to contradict their mandate to build the rule of law and legitimacy of the Iraqi state. When Shia and Sunni tribes on the two sides of the border between Karbala and Al Anbar provinces could not agree on a fasel and a violent feud developed as a result, the unit in the area and their embedded Provincial Reconstruction Team (PRT) considered using CERP funds to bridge the gap. However, CERP regulations, they found, did not allow for this use. But the PRT, at least, also had second thoughts about reinforcing the tribal system: "Enabling a tribal-law solution to the dispute would not be in the best interest of our rule-of-law mandate; the alleged killers should be brought to justice." Interestingly, the Americans did help find a mediator who could settle the feud.⁶⁰ Some U.S. soldiers and civilian officials also saw tribal law as harsh and pre-modern. CPA officials told U.S. soldiers that they would not meet with sheikhs; they had come to save Iraq from tribalism.⁶¹ As late as 2009, a USAID official described the system of tribal law to the staff of a brigade as one in which the strong dominate the weak.⁶²

CONCLUSION

Bing West took the title of his 2009 book, The Strongest Tribe: War, Politics, and the Endgame in Iraq, from an encounter with an Iraqi colonel during one of the battles of Fallujah. The colonel remarked that the jihadists would lose in the area because "Americans are the strongest tribe."⁶³ Speaking of his time in Anbar province, Marine General John F. Kelly explained that he, as the top commander in the area, was considered to be a "paramount dignified sheikh of sheikhs of the Marine tribe, and that became the recognized, most powerful tribe in the province — the richest tribe and the most militarily capable."⁶⁴ Iraqis were, in fact, willing to treat the U.S. military as a fellow tribe to the extent that they offered it access to their ancient system of tribal settlement, allowing American soldiers to pay fasels and avoid the revenge attacks that tribal-minded Iraqis, at least, were culturally required to attempt. This was probably most likely when the payments were appropriate and, ideally, not unilaterally set; when the U.S. military took responsibility for the incident; and when the claims process did not dishonor the victim or his or her family. Definitive proof that Iraqis who accepted payments did not participate in further attacks against American forces is, obviously, unavailable. Also, many payments that did not meet these criteria may still have sufficed to allow Iraqis to avoid any cultural requirement to take revenge they might have felt. But Iraqis certainly told Americans repeatedly that they put themselves at greater risk by not adhering to the basic elements of tribal settlement. And many American soldiers also came to believe that this was the case. Bringing the Americans into the system had obvious benefits for the Iraqis: it limited conflict, empowered those social leaders who ran the system, and provided funds to help those in need. The Iraqis knew and understood the system of tribal settlement and thought it worth trying if it might limit violence between them and the strange, sometimes badly behaved, tribe that had invaded their country.

As for the Americans, they may have found it useful or interesting to think of themselves as a tribe in the Iraqi context, but they were not always able to act as one, especially in the crucial realm of tribal settlement. This was true even though doing so could limit attacks on them, strengthen their allies, and help maintain those good community relations between them and their Iraqi neighbors that were essential to counterinsurgency. As I have described, U.S. soldiers did sometimes work as best they could within the tribal system — settling on acceptable payments, taking responsibility, and following the process of tribal settlement — and there are surely many more instances of this than I have tracked down. "We have weapons and a lot of other assets out there in the battlespace," said one soldier involved in a tribal settlement, "but if you can leverage the traditions and culture of the country to solve problems peacefully, then why not just do that?"⁶⁵ But these practices were not common across the war and certainly did not reflect explicit military procedures for how to handle civilian deaths.

Why did U.S. soldiers not take greater advantage of the tribal system? They may have been ignorant of it. Legal and administrative barriers, such as those to apologizing and to paying above the $2,500 cap, also limited them, although the fact that many soldiers did apologize for civilian deaths shows that this barrier was not high. According to Scholl, the greater flexibility enjoyed by the "commercial side" meant that they could work more easily within the system.⁶⁶ Also, for at least two crucial years of the war (2006-07), the system of tribal settlement was not widely functioning. This was the period of Iraq's civil war, when tribal leaders fled or were suppressed by militias, which had no interest in settling with U.S. forces. Early and late in the war, non-militia leaders were empowered enough to help Americans work within the system, and violence was low enough that it was possible to pay sufficient attention to individual cases.⁶⁷ Finally, U.S. soldiers and the civilians who advised them sometimes saw the tribal system as both pre-modern and a competitor to the rule of law. To participate in it was to support it, and that would undermine their overall mission of constructing a strong, legitimate Iraqi state.

But many Americans returned from Iraq believing the U.S. military's handling of civilian deaths was a missed opportunity. For, while the Department of Defense did come to understand the need for a well-funded system to pay civilian claims for combat damages, the system it created in condolence payments was so problematic that it may have failed in its ultimate goal: keeping American troops safer. It certainly did not bring American soldiers all the benefits it could have. Tracy has argued that honest compensation to survivors may help families find forgiveness but may also give all Iraqis a new respect for America.⁶⁸ According to Scholl, "it sounds harsh, but every time you run over someone on the road, it is an opportunity to convince people that you are honorable and will treat them justly. The U.S. military missed these opportunities."⁶⁹ As for tribal law's challenge to the rule of law and the developing Iraqi state, the Iraqis themselves, including those in government, insisted that the two systems were, in fact, mutually reinforcing.⁷⁰ The courts give the state its needs, while tribal settlement heals the community, Iraqis told me repeatedly in 2008-09. Honorable and just treatment may, of course, take place through procedures not modeled on Iraq's system of tribal settlement, but that system offers a repertoire of actions that most Iraqis immediately recognize as meaningful and appropriate.

The U.S. military may have missed opportunities in Iraq, but it is still considering and implementing the lessons of that conflict. On April 3, 2014, Congress passed the Consolidated Appropriations Act of 2014, which (in section 8127) allocates additional money to the Department of Defense to fund condolence payments. The act specifies that payments made with the funds are still not an admission of legal liability. The amounts are left to the discretion of the secretary of defense but should take into account factors such as cultural appropriateness and prevailing economic conditions.⁷¹ This provides an opportunity for the U.S. military to rethink how it might structure claims payments in societies with powerful systems of customary law. It should consider adopting elements of the tribal model that the Iraqis worked so hard to teach us