Azadeh Shahshahani & Divya Babbula ∞
“Empire means never having to say you’re sorry.” – Azeezah Kanji 1
The Global War on Terror 2 continues the U.S. legacy of war-making.3 As used in this article, the Global War on Terror describes the ongoing aggression, dehumanization of Muslim communities, expansion of carceral powers, and additional tactics of state repression deployed by the U.S. and other governments in the two decades following the September 11 attacks. Rendition, torture, and unlawful and indefinite imprisonment of individuals at the Guantánamo Bay prison,4 increased surveillance at home and abroad,5 and other human rights abuses6 have been and continue to be committed by the U.S. in the name of fighting “terror” – an ever-elusive target.7 The military invasion and occupation of Afghanistan in 2001 and Iraq in 2003 are only two of several military operations that the U.S. initiated or engaged in over the last two decades. In 2007, the U.S. established African Command (“AFRICOM”) to expand military presence and “western colonial control over the region, its people, and their resources” under the guise of fighting “terror.”8 Each subsequent administration has expanded the reach of the Global War on Terror such that the U.S. maintains counter-terrorism operations in 85 countries today.9 Over the last two decades, the U.S. has spent more than $8 trillion on the Global War on Terror, which includes $5.8 trillion spent or requested by the military as well as future medical expenses and disability payments to veterans.10 The costs of war in Iraq and Syria alone amount to $1.79 trillion between 2003 and 2023.11 Overall, the Global War on Terror has caused lasting harm to individuals, communities, natural resources, infrastructure, and the economies of targeted countries. This article focuses on the United States but claims for reparations should also be brought against other governments that facilitated and fostered violence and continue to do so. Holding countries accountable for the harms caused would help to overturn decades of impunity for white supremacist violence.12
Scholars and journalists have urged that the U.S. can and should take actions to support justice for people of countries it has invaded, occupied, and exploited.13 However, prior legal scholarship has focused on reparations owed to specific groups, such as people formerly detained at Guantánamo.14 This article expands on such existing scholarship by arguing that potential beneficiaries for reparations should also include all those who have endured various human rights abuses at home and abroad, military occupations and the resulting humanitarian crises, or forced displacement, as well as the descendants of those killed by direct violence. Reparations for a broader recipient group would help acknowledge and compensate for the full economic, human, and moral costs of the Global War on Terror, and are also mandated by the legal obligations of the U.S.
II. Legal Framework
Part II of this article will explain the right to reparation under international law, specifically looking at the UN ILC’s Draft Articles and UN Reparations Principles through a Third World Approach to International Law framework, as well as under the U.S. Constitution.
International law is one tool to protect individuals who experience human rights abuses. International law often creates general rights to reparations for victims.15 In the seminal Chorzów Factory case, the Permanent Court of International Justice explained that:
[I]t is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form…reparation must, so far as possible, wipe out all the consequences of the illegal act and re-establish the situation that would, in all probability, have existed if that act had not been committed.16
International law also establishes that States have a duty to repair the harm caused by serious breaches of international human rights or international humanitarian law, and that the reparation must make the person whole.17 The Draft Articles and the Reparation Principles best describe when reparation is owed, who the recipients can be, and the forms it may take. They explain that the duty to provide reparation covers individuals in addition to other states18 and that the reparation must be proportional to the gravity of the violation, resulting harm, and unique circumstances.19
There is general acknowledgement that “all violations of human rights and international humanitarian law entail legal consequences.”20 Reparations Principle 26 confirmed that: “[I]t is understood that the present Basic Principles and Guidelines are without prejudice to the right to a remedy and reparation for victims of all violations of international human rights and international humanitarian law.”21 Theo van Boven, Former Special Rapporteur for the Sub-Commission on Prevention of Discrimination and Protection of Minorities, wrote that “gross violations of human rights and fundamental freedoms” include “genocide, slavery and slavery-like practices; summary or arbitrary executions; torture and cruel, inhuman or degrading treatment or punishment; enforced disappearance; arbitrary and prolonged detention; deportation or forcible transfer of population; and systematic discrimination, in particular on race or gender.”22 While other international instruments use the terms gross, grave, flagrant, massive, systematic, and serious interchangeably, the Reparations Principles specifically refer to “gross” and “serious” violations of human rights.23 Given this lack of uniformity, legal scholar Roger-Claude Liwanga proposed a holistic definition of gross violation of human rights, one that “includes a panoply of violations of civil and political rights as well as social, economic, and cultural rights.”24 Liwanga argued that a gross violation of human rights occurs when a State (or non-State actor, or a State without effective judicial investigation and prosecution of the perpetrator(s)) commits at least one of the following acts, repetitively or not, against any individual:
● “Torture and cruel, inhuman, and degrading treatment or punishment;
● Summary or arbitrary execution;
● Forced or involuntary disappearance, or arbitrary and prolonged detention;
● Apartheid, discrimination based on gender, race, nationality, ethnicity, language, culture, or religion;
● Human trafficking, slavery, or slavery-like practice;
● Foreign occupation or alien domination;
● Lack of the rule of law;
● Denial of access to education, food, or other socio-economic rights;
● Denial of access to free expression, public affairs, and services of the country; and
● Destruction of properties or looting of a community’s natural resources.”25
This proposed definition is a useful guideline because it synthesizes the various defining criteria of a “gross violation” of international law.
The Reparations Principles state that “full and effective reparation” can be provided as restitution, compensation, satisfaction, or some combination.26 Restitution is restoration to the status quo ante, such as the return of territory, persons or property or the reversal of a legal act.27 Compensation is limited to “damage actually suffered as a result of the internationally wrongful act” and is provided to the extent that restitution is insufficient or otherwise inadequate to achieve full reparation for the damage caused.28 Satisfaction, an additional reparation which supplements restitution or compensation when those are insufficient, must be proportionate to the injury.29
Likewise, the Reparations Principles describes five forms of reparation – restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.30 Restitution “should, whenever possible, restore the victim to the original situation.”31 Compensation is payment for “any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances.”32 Damage covers physical, mental, material, and moral harms; lost opportunities; and costs of legal, medical, psychological, and other social services. Rehabilitation includes medical, psychological, legal, or social services. Satisfaction includes “the cessation of continuing violations,” searching for those who have been disappeared or killed, a public apology, and judicial and administrative sanctions, among others.33 States must take “any or all” of several measures provided in the Reparations Principles to prevent future violations and guarantee that violations of international law will not be repeated.34
Under the Draft Articles and Reparation Principles, the survivors of the Global War on Terror are eligible beneficiaries of reparations. The erosion of human rights and civil liberties under the U.S.-led War on Terror is the type of serious violation covered by the Draft Articles, Reparations Principles, and other international instruments. Impacted individuals include “persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights.”35 Individuals are entitled to reparation “irrespective of who may ultimately be the bearer of responsibility for the violation,” and the duty to provide reparation is also “not bound territorially,” meaning it is owed regardless of where the violation occurred.36
The framework of Third World Approaches to International Law37 helps us to understand the challenges of using international law as an advocacy mechanism, since it “has been principally, almost unquestionably, a product of Western thought and experience.”38 The scholars applying this framework seek to repurpose international law as a tool to advance the interests of the Third World – a political identity of peoples under Western colonization and imperialism. Inspired by their opposition to conventional international law and desire for an egalitarian international order, this article affirms the demand for reparations to all survivors of the war on terror domestically and abroad.
The United States Constitution also creates a duty upon the President and Congress to uphold the country’s international obligations and responsibilities, which includes the international obligation to provide reparations.39 As the “sole organ of the federal government” in foreign affairs,40 the President represents the nation’s interests and justifies its actions abroad.41 The President participates in the development and implementation of customary international law as part of the duty to “take care that the laws be faithfully executed” by the Executive.42 Congress has the power to enact laws “necessary and proper” to carry out the powers vested in the federal government, including those required to comply with international law.43 The Executive branch and Congress could use their authority to implement the Reparations Principles and other international human rights treaties. Such action would show an acceptance of responsibility for the physical, mental, emotional, and economic harm of the Global War on Terror and its reverberating effects. However, the moral and political will to take such action is currently missing. Instead, the U.S. puts forth contested legal justifications to evade its constitutional and international duty of reparations.44
III. Accountability for the Global War on Terror
This Part describes how reparations would address specific examples of violence, torture, and displacement in the Global War on Terror. Reconstruction, refuge, and monetary damages are all potential forms of reparations. These remedies together would constitute “full reparation” as defined by international law.45
Reconstruction entails rebuilding the infrastructure, environment, and homes destroyed by the military occupation, including the removal of explosives.46 Much of the $60 billion spent by the U.S. between 2003 and 2012 for Iraqi “relief and reconstruction” was used to bolster the Iraqi security forces and not to rebuild infrastructure.47 The U.S. Special Inspector General for Iraqi Reconstruction found that $8 billion allocated to construction projects was wasted and a significant portion of the remaining funds were unaccounted for.48 The war against ISIS in 2014 destroyed much of the remaining infrastructure.49
Refuge includes hosting the millions of displaced persons in the U.S. or facilitating resettlement to other countries in a safe and welcoming atmosphere. The “Costs of War” project estimates that over 929,000 people have died from direct war violence, and over 38 million people have become displaced by the Global War on Terror.50 More than 9.2 million Iraqis have been displaced since the 2003 invasion, yet the U.S. Department of State “Direct Access” refugee program has resettled around only 47,750 Iraqis to date.51 The United Nations estimates that over 550,000 Afghans have been internally displaced since January 2021 in addition to three million people who were displaced prior to this year, and approximately nine million since the beginning of the crisis.52 These are numbers from two of the many countries impacted by the Global War on Terror. The U.S. resettled around 600 Afghan refugees in fiscal year 2020.53 This number has since slightly increased to around 1,600 in fiscal year 2022.54 The total annual refugee resettlement ceiling for fiscal year 2023 is 125,000 – an increase from the low of 18,000 under the Trump administration,55 but still a fraction of the total number of persons displaced by the Global War on Terror. The U.S. accepts less than 1% of the world’s displaced population “contrary to the myth of being overburdened by generosity.”56 Forcing the U.S. government to provide reparations because of human rights violations it committed during the Global War on Terror would deter other states from initiating or continuing their own violent counter-terrorism operations abroad.
The U.S. should make monetary payments to the survivors of the wars and the families of those killed, tortured, disabled, and disappeared. Most individuals impacted by these violations do not receive any monetary payment from the U.S., let alone reparations.57 Congress has taken some action to provide monetary payments to those affected by U.S. military aggression but these are expressly not meant to be reparations.58 Section 8127 of the Consolidated Appropriations Act provides ex gratia payments (i.e., sympathy and condolence payments) to certain civilians killed and injured in combat operations.59 According to a memorandum by the Undersecretary of Defense about these payments, only civilians who are considered “friendly to the United States” and are not residents of countries or territories in armed conflict with the U.S. who suffered “property damage, personal injury, or death” as a result of U.S. military activity are eligible.60 In addition to strict eligibility, these payments made are “not legally required, nor may they be construed or considered as an admission or an acknowledgement of any legal obligation to provide compensation, payment, or reparations for property damage, personal injury, or death.”61 The “principal goal” is to advance U.S. military objectives (“obtain and maintain friendly relations with and the support of local population”) and not to be accountable for human rights violations.62 Such language distances the U.S. from acknowledging its responsibility to repair some of the harms caused even as any payment is a fraction of the total economic and human destruction of the Global War on Terror.
The demand for Western governments to pay reparations for violence, oppression, and other exploitation is not new.63 There is some precedent for Western governments paying reparations to the people of another country they have harmed, as a result of consciousness-raising and sustained public pressure. For example, the U.S. paid reparations to Japanese Americans for internment and violations of their civil rights during World War II with the Japanese American Claims Act of 1948. The Civil Liberties Act of 1988 provided monetary reparations to Japanese American survivors of internment and a congressional apology for the racist policy.64 After the Mau rebellion in the 1950s, the U.K. provided monetary payments to some of the Kenyans tortured and killed in the Kenyan fight for independence against British colonial rule.65
One notable example of the “full reparations” that international law aspires to achieve is the Caribbean Community Secretariat (“CARICOM”) ongoing demand for European countries involved in the trans-Atlantic slave trade to pay long overdue reparations.66 Reparations on behalf of survivors of crimes against humanity of genocide, slavery, slave trading, and apartheid is imperative, but still unmet. The movement is gaining traction with the first International Reparations Summit was held in New York City in April 2015.67 Several countries including the United States are setting up reparations committees.68 Another positive development is that, in February 2021, the House Judiciary Committee on the Constitution, Civil Rights, and Civil Liberties conducted a hearing on H.R 40, the “Commission to Study and Develop Reparation Proposals for African-Americans Act.”69 CARICOM makes the urgency clear: “Reparations is the moral imperative of our age and we believe that the struggle for reparations will become the pre-eminent human rights movement of the 21st Century.”70 The movement to ensure reparations for survivors of the Global War on Terror can take inspiration from CARICOM’s zealous and sustained efforts.
Reparations for the War on Terror are not solely an issue of foreign policy. The War on Terror also exacerbated the carceral state within the U.S. with the creation of the Department of Homeland Security, expansion of the national security dragnet, militarization of the police, and other punitive government policies.71 In 2021, several American organizations collaborated to prepare a grassroots policy agenda for the Biden-Harris Administration to divest from the Global War on Terror.72 The authors of this article support these organizations’ demands that resources spent on surveillance and violence be reinvested into “structures of community care to protect the future of our people” such as the Movement for Black Lives’ proposed BREATHE Act and the NDN Collective’s LANDBACK Campaign.73
The Global War on Terror is just one example of how the U.S. government has used its hegemonic police and military power for oppressive actions that it justifies using white supremacist ideology. In this way, the movement to end the Global War on Terror is intrinsically linked to efforts to #AbolishICE, #DefundPolice, get indigenous #LandBack, and enact the Red Deal.74 While the terminology and legal framework used to support the Global War on Terror is strategically unique, the “underlying dynamic of differentiation”75 that is used to justify “a one-way license of brutalization and control” 76 remains. This differentiation results in the false and racist notion that tragedy, conflict, and humanitarian crisis in countries targeted by the Global War on Terror is to be expected.77
Communities directly impacted by the war on terror and its infrastructure have condemned the abuses of power and violence committed in the name of fighting terrorism.78 And in response to the unlawful imprisonment of individuals at Guantánamo Bay, there was “extraordinary mobilization of lawyers throughout the world…to defend those beaten down by the U.S. government and the mass media.”79 In this tradition, lawyers around the world have a critical role to challenge the broader erosion of human rights and civil liberties of individuals caused by the Global War on Terror. Movement lawyers must uplift the demands of those impacted80 to first divest from and dismantle the infrastructure of the Global War on Terror and second, invest in “systems to provide care, protection, and repair for communities at home and abroad.”81 Reparations for the tremendous damage of the Global War on Terror is one crucial part of the movement for global justice, in which lawyers should be active participants.82
On October 26, 2016, Linda Sarsour delivered the 23rd annual Rose Sheinberg Lecture to an audience of more than 100 N.Y.U. Law students and community members about being a Muslim woman in America today.
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