AREA OF WORK

What are post-PACT Act possibilities for recognition and compensation for Iraqi victims of war toxins?

The US PACT Act, enacted in 2022, offers unprecedented healthcare and compensation for 3.5 million US military veterans suffering from illnesses linked to toxic exposure. What are the possibilities for comparable recognition and support for Iraqi civilians who continue to live amidst the same war toxins, and what role can international law play in achieving justice?

April 2023 marks eight months since the PACT Act (Promise to Address Comprehensive Toxics Act) went into effect in the United States in August 2022. The PACT Act is “the most significant law ever helping victims exposed to toxic burn pits,” as described in US President Joe Biden’s February 2023 State of the Union address. Indeed, the PACT Act unprecedentedly offers healthcare and disability compensation for approximately 3.5 million veterans harmed by burn pits and other toxic exposures. It not only promises long awaited compensation for veterans who served in the US wars in Iraq and Afghanistan beginning in 2003 and 2001 respectively, but also covers veterans harmed by herbicides during the Vietnam War, 1990–91 Gulf War veterans, and those who served in numerous other locations including Syria, Yemen, Lebanon, and many more. Veterans will be presumed eligible according to dates and locations of service, and no longer have to prove the direct link between their exposure and their illness, often an impossible task.

No comparable mechanism is in place, however, to recognize and assist civilians facing ongoing toxic assaults in contaminated environments, including in Iraq. Iraqi civilians suffer from disturbingly high rates of congenital anomalies (birth defects) and cancers, leading to conditions of inescapable health devastation, something I deem “toxic saturation” in my research.

Does the PACT Act offer any hope for comparable support for non-US civilians? Or does the Act represent the latest iteration of a deeply flawed approach when it comes to the US’s response to victims of war toxins? In this post, I address these questions as they impact Iraqi civilians, and examine international law’s role for addressing irreparable harm experienced by civilians forcibly exposed to war toxins.

The Scale of “Toxic Saturation”

A 2019 Environmental Pollution study documented that children living in proximity to a US military base near Nasiriyah, Iraq, had an increased likelihood of congenital anomalies including neural tube defects (such as spina bifida, anencephaly, and hydrocephalus), congenital heart diseases, and musculoskeletal malformations (including missing right hand and paralyzed clubfoot). Doctors in Fallujah have long reported a staggering post-2003 surge in birth defects.

It is important to understand the scale of war toxins that the US military and its allies introduced to Iraq. More than 780,000 rounds of depleted uranium (DU) were used in 1991, and more than 300,000 rounds in 2003, as reported by Dutch peace organization PAX. As explained by the US Department of Veterans Affairs (VA), “DU is a potential health hazard if it enters the body, such as through embedded fragments, contaminated wounds, and inhalation or ingestion.”

The US military admits to using white phosphorus as an incendiary weapon in Fallujah in 2004. Incendiary weapons, as explained by Human Rights Watch (HRW), “produce heat and fire through the chemical reaction of a flammable substance, cause excruciating burns and destroy homes and other civilian structures.” The US later used white phosphorus again in Iraq and Syria in operations targeting the Islamic State. As described by HRW’s Stephen Goose, “No matter how white phosphorus is used, it poses a high risk of horrific and long lasting harm in crowded cities like Raqqa and Mosul and any other areas with concentrations of civilians.”

Another key source of toxic exposure for veterans is burn pits. As I wrote for Al Jazeera in August 2022, burn pits are open air pits of military waste, sometimes as large as football fields, used to burn and destroy weapons, chemicals, plastics, and medical and human waste, typically using jet fuel. Joe Biden has been vocal about his son Beau’s fatal brain cancer, believed to be caused by exposure to burn pits while serving with the US military in Iraq and working in Kosovo.

International Law and Compensation for Health Destruction

Compensation is essential for providing medical care and lifetime assistance to Iraqis struggling to survive due to toxic saturation. Veterans have faced health devastation following relatively short-term exposure, while civilians have been left behind to languish amidst war toxins. As noted in my research on water access, however, international law faces significant enforceability challenges regarding reparations for victims of environmental destruction in the context of armed conflict.

The US in particular has a discouraging track record. The US government long denied illnesses linked to deadly, dioxin-containing herbicides, including Agent Orange, experienced by Vietnam War veterans. Funding dedicated to Vietnamese civilians and environmental clean-up has been a mere fraction of what is needed, especially as children continue to be born with severe congenital anomalies nearly fifty years after the Vietnam War ended in 1975.

In principle, international law clearly provides the basis for reparations for Iraqi civilians. Additional Protocol I (1977) to the Geneva Conventions addresses the illegality of environmental damage and health destruction, and reparations for harm caused. Article 55 requires that care is taken in warfare “to protect the natural environment against widespread, long-term and severe damage.” This protection prohibits methods “which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.” Article 91 states that parties that violate international humanitarian law shall “be liable to pay compensation.” The Environmental Modification Convention forbids military “environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury.”

Furthermore, monetary compensation is not the only aspect of reparations currently being denied for Iraqis. As Christine Evans writes, “There is a common misconception that reparations are synonymous with monetary compensation” when reparations actually encompass financial and non-financial meanings: “restitution, compensation, rehabilitation, satisfaction (disclosure of the truth), and guarantees of non repetition.”

Following the significant agreement on “loss and damage” funding at COP27 in November 2022, compensation for developing countries impacted by climate disasters, long on the agenda of climate justice advocates, was brought to the center of the world stage, though much work remains to be done to ensure compensation is provided to those in need of it.

Comprehensive environmental justice requires that all victims of environmental injustice, including both victims of the climate crisis and of toxic environmental assaults during and following war, are recognized and compensated. The PACT Act is an overdue victory for veterans and sets a precedent for compensation following wartime toxic exposure. The US government cannot stop here, only recognizing veterans affected by war toxins. The US must be pressured to acknowledge the existence and suffering of Iraqi civilians and all people harmed by war toxins, and to provide the care and compensation that is owed to them.

April 21, 2023. Carly A. Krakow, Visiting Scholar (AY 2022-2023)
Carly A. Krakow is a writer, journalist, faculty member at the NYU Gallatin School, and completing her PhD in International Law at the London School of Economics as a Judge Rosalyn Higgins Scholar and Modern Law Review Scholar. 

This post reflects the opinions of the author and not necessarily the views of NYU, NYU Law or the Center for Human Rights and Global Justice.

PREVENTION AND CONFLICT

Prevention economies in Kenya: Peace, Power and Pragmatism?

While international security interests continue to hijack the ‘triple nexus’, local CSOs have used Preventing and Countering Violent Extremism (P/CVE) to allocate and redirect resources to their own needs, secure their mission in the face of a shrinking civil society space, and protect themselves from direct security interventions.

The Emergence of the ‘Preventing and Countering Violent Extremism’ Agenda

“Conflict prevention” is an umbrella term for a variety of interventions in the peacebuilding field that aim at addressing factors that could lead to violent conflict. SDG 16 in the UN 2030 agenda makes an important contribution to the realm of conflict prevention with the target goal to “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” After years of hard counter-terrorism strategies, preventive measures to address the root causes of radicalization have also gained traction in the Global War on Terror. The United States, supported by the United Nations, have played a central role in this paradigm shift and the introduction of the concept ‘Preventing and Countering Violent Extremism’ (P/CVE), which replaced the dominant notion of ‘Counter-Terrorism’ (CT) in policy spaces in 2015. P/CVE has since become the globally accepted security strategy to address violent extremism, by underscoring a whole-of-society approach, as well as the localization of the fight against terrorism. While P/CVE is very much a security strategy, the agenda is now also closely linked to SDG 16 through the emphasis on strengthening civil society and government institutions, building social cohesion and resilience, addressing local grievances and respecting human rights. At the core of this union between P/CVE as a security strategy and peacebuilding lies the concept of ‘human security’, which is defined by the UNDP as ‘freedom of want’ and ‘freedom of fear’. ‘Human security’ focuses on the individual grievances that may incite violence. Consequently, many security approaches are no longer solely based on military power, but include humanitarian, development, and peacebuilding initiatives. Within this vein, CSOs have thus become integral to the realization of the agenda. As a result, critics argue that P/CVE has securitized and co-opted the civil society space, thereby forging a dangerous liaison between security actors and CSOs.

Securitization of the Civil Society Space in Kenya

In the first years, after its global adoption in 2015, the P/CVE agenda was implemented through National Action Plans (NAPs) with great enthusiasm from the international community. Particularly, the United States supported its allies around the world in the adoption of the agenda through technical assistance and donor funding. Kenya is one of the US’s main strategic allies in the Global War on Terror in Africa and has been at the forefront of adopting the P/CVE agenda in the last 7 years. While donors decreased their funding through COVID-19 and the presidential election in 2022, P/CVE is still one of the main donor priorities in Kenya to this day. Since the introduction of P/CVE in 2016 through a National Action Plan (NAP), many CSOs have geared towards the implementation of P/CVE programs to access funding for their programs. The international donor industry, which is heavily influenced by security interests in the Horn of Africa, has thus very much impacted the civil society space in Kenya. As the Kenyan government considers violent extremism a national security issue, every organization that implements P/CVE must report to the National Center for Counterterrorism (NCTC) under the 2012 Prevention of Terrorism Act (POTA) since a 2019 amendment. CSOs therefore have to report to the authorities about P/CVE programs, which can include sensitive information about the program participants. As a consequence, local communities have accused CSOs of espionage and surveillance, thereby criticizing the alignment of aid programs with security interventions. While the securitization of the civil society space in Kenya through the integration of security strategies into aid programs in the name of prevention has certainly led to many trust issues between CSOs and local communities, the question of agency and resistance of CSOs is central in understanding P/CVE in Kenya. CSOs are subject to complex negotiations between international security agendas, funding scarcity, and local agency. I will briefly discuss the entanglement of the security-oriented P/CVE agenda in three key areas in the aid architecture: human rights (1), humanitarian and development aid (2), and peacebuilding (3).

The Entanglement of P/CVE with the Aid Architecture

In the aftermath of heavy security crackdowns against Muslim communities after the Westgate mall attack in 2013 and counter-terrorism operations along the coast, Kenyan human rights organizations were very vocal about the human rights violations including forced disappearances and extrajudicial killings committed by Kenyan security forces and brought international attention onto the situation. As a response, the government listed two leading human rights organizations as terrorist entities which resulted in the freezing of their bank accounts. After a legal battle the court finally ruled the accusation as unjust and commanded the unfreezing of assets. Nevertheless, the incident sent a clear message to human rights organizations nation-wide. It is therefore, perhaps, surprising how many human rights organizations are currently actively implementing P/CVE programs despite of the previously mentioned issues. While the P/CVE agenda commits to a human rights-based approach to preventing violent extremism, the often-times close involvement of security forces in the implementation of P/CVE also endangers the integrity of CSOs. I would argue, however, that P/CVE can and should also be understood as part of a pragmatic response by human rights organizations that engage in a difficult balancing act between shining light onto human rights violations and their own security. The close relationship with the government and security forces in the implementation of P/CVE seems to allow human rights organizations to expose certain incidents without feeling immediate repercussions. Additionally, at the coast, CSOs established a consortium to protect each other from similar accusations. Human rights organizations and other CSOs also contest the 2019 amendment of POTA that obliges all organizations that implement P/CVE to report information to the NCTC. They are thus forced to find a pragmatic path between dialogue with the security forces and protection of their own work.

Humanitarian and development programs are frequently also part of P/CVE responses in Kenya. Especially in the North-Eastern region of Kenya, humanitarian and development interventions converge with security strategies to tackle violent extremism. The climate crisis has led to the worst droughts and food emergency situation in forty years. The redirection of funding channels to European countries through the Ukraine war and global wheat price crisis also partly contribute to the lack of funding to address humanitarian needs in the region. Additionally, foreign actors often prioritize other countries as they consider Kenya as a middle-income country. Since P/CVE continues to be a funding priority for many donors in the North-Eastern region of Kenya, many local CSOs apply for P/CVE funding to allocate resources and later redirect them to humanitarian assistance programs. Local CSOs, in asserting their agency, therefore also take advantage of the P/CVE industry to access funding that they would otherwise not receive in a situation of humanitarian emergency.

Finally, peacebuilding CSOs in particular have shifted their focus to the implementation of P/CVE as a consequence of the huge donor funding supply for these programs, oftentimes using the labels of “P/CVE” and “peacebuilding” interchangeably. While both P/CVE and peacebuilding are very broadly defined terms, the label P/CVE raises a lot of suspicion in local communities and creates security risks for local aid workers who implement these programs. Nevertheless, P/CVE is also an instrument for local communities to keep security forces at arm’s length. Many P/CVE programs contain community policing as an integral element which redirects security governance to the local community. It appears that local communities are able to contain direct police engagement in the community, which decreases incidents of police brutality against youth. While many local peacebuilders explain how violent extremism actually is not a main concern in their communities, P/CVE seems to be an important tool to not only gain funding but again paradoxically help secure the community against government crackdowns.

Ultimately, local CSOs in Kenya demonstrate great pragmatism in the implementation of P/CVE by balancing security concerns and local needs within an increasingly competitive donor market. At the beginning, P/CVE might have been a top-down approach to tackle local insecurities that are of concern for international actors and global stability. While international security interests continue to hijack the ‘triple nexus’, local CSOs have used P/CVE to allocate and redirect resources to their own needs, secure their mission in the face of a shrinking civil society space, and protect themselves from direct security interventions.

April 11, 2023. Nora Naji, Visiting Scholar (AY 2022-2023)
Nora Naji is a PhD candidate at the University of Basel, and an associated researcher at swisspeace. Her dissertation ‘Commodifying peace: Intimate warfare and prevention economies in Kenya’ builds on the securitization premise and sets out to situate the agenda of “Preventing and Countering Violent Extremism” (P/CVE) in Kenya within a larger discussion of prevention economies.

This post reflects the opinions of the author and not necessarily the views of NYU, NYU Law or the Center for Human Rights and Global Justice.