Not simply a rank injustice: Christopher Bellamy explains why compensation for death is different in war and peace

THE US Defense Department's decision to award compensation to the families of two British officers killed by 'friendly fire' over northern Iraq earlier this year has provoked an outcry of a peculiarly British kind. It stems from the fact that the recipients are the families of officers, while the United States has paid no compensation to families of nine British victims of an earlier 'friendly fire' incident who were rank-and-file soldiers.

The media, MPs and lawyers representing the families of the nine soldiers have all claimed that the Americans are drawing an unjust distinction between officers and men. The life of an officer killed by 'friendly fire', it is being said, is judged to be worth dollars 100,000 ( pounds 66,000) - the sum of the compensation award - while the life of a rank- and-file soldier is deemed worthless.

In fact, the US Defense Department's decision to compensate the two officers' families was highly unusual and drew no distinction between officers and men: the families of each of the 11 non-US nationals killed in that incident (who included French and Turkish nationals, military and civilian, commissioned and non-commissioned) were awarded the same amount. The reason the families of these victims received compensation and the families of the earlier victims did not was that the two officers were killed in peacetime, while taking part in a humanitarian mission under UN auspices. The nine victims of the earlier incident were killed during the Gulf war. The distinction is not between officers and men, but between war and peace.

This is the clear legal position. Yet the indignant families have a point. The two incidents in which the British servicemen were killed were remarkably similar. Both were the result of a catalogue of mistakes. In each case US warplanes attacked targets which had been wrongly identified as hostile. Although first reports about the earlier incident, on 26 February 1991, suggested that it had taken place in the heat of battle, this was later shown to be untrue. In that case, and in the case of 14 April this year, it was found that the US pilots should have been able to identify their victims as friendly.

The question that really needs to be asked, therefore, is why, if the physical circumstances of the incidents were so similar, the legal circumstances should be seen so differently.

There were two main factors influencing the US ex-gratia payments to the foreigners killed in the April incident. The first is that the dead included civilians; the second, that the two Black Hawk helicopters shot down were part of a UN humanitarian mission intended to shield Kurds in northern Iraq against renewed pressure from Saddam Hussein. This was stressed several times by William Perry, the US Defense Secretary, when he announced the payments.

In the Gulf war incident, the soldiers were 'at war'. In war, people are killed and injured and a great deal of extremely unpleasant material is flying about. Although people who make mistakes can be court-martialled, and those who break the Geneva Conventions can be convicted of war crimes (by the victors), it has not been thought practical to award compensation. This is why the US government has not offered compensation to the families of the soldiers killed in 1991.

The problem for their relatives is that the legal distinction between peace and war is implicit in the Charter of the United Nations. Chapter VI, 'Pacific settlement of disputes', has evolved as the umbrella for the conduct of peace-keeping operations that eschew the use of force except, in the last resort, for self-defence. Chapter VII covers unilateral intervention - as in the Gulf war. The decision to award compensation to those killed in northern Iraq in April and not to those killed in southern Iraq in February 1991 owed much to the fact that the former came under Chapter VI, the latter under Chapter VII. In the former, you might get shot at; in the latter you are certain to be.

As the similarity between the two incidents shows, however, this distinction is becoming harder and harder to draw as the number of peace- keeping operations increases and the circumstances in which they are conducted grow more complex. The difficulty was first seen by Dag Hammarskjold, UN secretary-general from 1953-61, who coined the phrase 'Chapter VI-and-a-half' to cover the more proactive peace-keeping and aid operations. (These are now covered by the British Army's term 'extended peace- keeping'.)

A new British Army think-tank on doctrine, based at Upavon, Wiltshire, has drawn a crucial distinction between extended peace-keeping - as in Bosnia, Rwanda and northern Iraq - and peace enforcement, of which the Gulf war was an example. The nub of the distinction, it says, is 'consent'. It is hard to challenge that definition, although it might be disputed whether the UN in northern Iraq was really acting with Iraq's 'consent'.

Major-General Mike Willcocks, the British Army's director of land warfare at Upavon, says: 'I do not think anyone would consider themselves at war now, yet we have 20,000 soldiers employed on operations and there have been some 2,700 casualties in Northern Ireland. I hope therefore it will be accepted that we need a wider spectrum than simply peace or war.'

Since the Second World War there has been only one year - 1968 - when a British soldier has not been killed on active service somewhere. There are 18,000 troops on active service in Northern Ireland, 3,500 in Bosnia, 600 in Rwanda. The Army complains of 'overstretch', and for the first time reservists are being used for real soldiering in 'peacetime'.

The end of the superpower stand- off has created a situation in which the more developed countries have a permanent obligation to contribute troops to UN operations. We are not 'at war', in the sense that it was understood for 200 years. But, for the foreseeable future, we will not know 'peace' either.

Unfortunately, the distinction between 'peace' and 'war' is still fundamental to our political and legal mechanisms and to our ability to mobilise resources. The outdated distinction between 'war' and 'peace' gives rise to absurdities and inefficiency. If the treatment of the 'friendly fire' incidents can be criticised, it is for that reason; it had nothing to do with the victims' status.