The recent horrendous murder of innocent civilians, including women and children, by an Army soldier in Afghanistan raises many questions as to how the United States will proceed once its investigation is completed. One of those questions involves compensation for the families of the dead and injured. Is there a legal vehicle which allows the American Army to pay damages to these families? Yes, there is. The Foreign Claims Act, 10 U.S.C. 2734, is a statute that allows payment for negligent or willful acts committed by U.S. service members in a foreign country whether the service member was acting in or out of the scope of his employment. Clearly the assailant here was not acting within the scope of his employment. Still the Foreign claims Act allows the United States to provide compensation to the surviving families. The law of the place of the injury (Afghanistan) will determine the nature and amount of damages. While combat claims are excluded under the Foreign Claims Act, these murders are arguably not covered by that exclusion because they were definitely not committed pursuant to combat operations.
Regardless of the ultimate disposition of the accused soldier’s case, the surviving families are still entitled to compensation under the Foreign Claims Act. In all likelihood the American military command, the State Department, and the Afghan government will work closely to arrive at a settlement satisfactory to all the parties knowing full well that no amount of money can compensate for the tremendous losses suffered. Fair and timely settlement will be an important component of trying to reestablish positive relations with the Afghan people.