We were recently asked by an immigration lawyer if an Iraqi citizen (whose civilian husband was killed by US troops) or her children could sue the US Government. The incident took place in Iraq during 2005. An Iraqi civilian, his wife and two children were driving in an area where there was troop movement. Military personnel ordered the individuals to move out of the area, using a megaphone. The vehicle did not move out of the area and the Iraqi civilian was shot in the back of the head. The wife of the deceased man claims that she did not hear the warning and that the family was not personally warned. After the man was shot in the head, the vehicle veered into a light pole. The children and wife of the deceased man witnessed the incident and have suffered psychological trauma. One of the children, who was four years of age at the time, has not spoken since the incident; he is now twelve years of age. Sad facts always scream for a remedy. However, the law does not always deliver a remedy even if damages have occurred.
Non-U.S. citizens are precluded from bringing claims against the United States involving military operations on foreign territories. In this specific instance, the incident occurred during a time of war and in a foreign country. (1) The Federal Torts Claims Act does not waive sovereign immunity for such claims; (2) The Military Claims Act only applies to U.S. citizens; and (3) the Alien Torts Statute only creates jurisdiction for aliens raising civil actions related to a violation of the law of the nations or a treaty.
There is case law that supports these findings. For example, in Koohi v. U.S., 976 F.2d 1328, 1994 A.M.C. 1514 (9th Cir. 1992), a case holding that 28 U.S.C.A. § 2680(j) applied to prevent survivors of passengers on board an Iranian commercial airliner shot down by a U.S. Navy vessel during the 1986-1988 Iran-Iraq "tanker war" from suing the United States under the Federal Tort Claims Act, the court stated that the result in the case would be no different if the downing of the civilian plane had been deliberate, rather than the result of error. The court explained that the combatant activities exception applies whether U.S. military forces hit a prescribed or an unintended target; whether those selecting the target have acted wisely or foolishly; whether the missiles employed turn out to be "smart" or dumb; and whether the target chosen performs the function it was believed to perform, or whether the choice of an object for destruction is a result of error or miscalculation. The court added that, in other words, it does not matter for purposes of applying the exception whether the military makes or executes the decision carefully or negligently, properly or improperly, but that it is the nature of the act and not the manner of its performance that counts. The court therefore found that in the case before it, it was of no significance whether a plane that was shot down was civilian or military so long as the person giving the order or firing the weapon did so for the purpose of furthering the United States' military objectives or of defending lives, property, or other interests. 23 A.L.R. Fed. 2d 489 (Originally published in 2007).
As often stated, war is a terrible thing. Since the dawn of time, groups of men have been waging war on each other. Unfortunately, the innocent civilians also suffer.