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Published online by Cambridge University Press: 25 February 2011
La Commission d'indemnisation des Nations Unies a été créée par le Conseil de sécurité pour examiner les demandes déindemnisation et verser des indemnités aux victimes de l'invasion et de l'occupation illicites du Koweït par l'Irak (1990-1991), Cet article examine I'importance que les considérations d'ordre humanitaire revêtent dans le cadre des travaux de la Commission, notamment dans la procédure d'examen des demandes d'indemnisation et dans les mécanismes pour la répartition des indemnités accordées aux requérants dont la réclamation a abouti. L'article examine également les sources des contributions versées au Fonds d'indemnisation des Nations Unies (à partir duquel les indemnités sont versées) dans le contexte de la situation humanitaire qui prévaut en Irak, et il établit une distinction entre le mandat de la Commission et les autres institutions et processus mis en place par le Conseil de sécurité après l'invasion du Koweït en 1990. Finalement, l'article explore brièvement comment les considérations d'ordre humanitaire peuvent jouer un rôle dans des futures procédures de réparation des dommages de guerre.
1 UN Doc. S/RES/687 (1991), para. 33.
2 The literature on the Commission's creation and working methods is extensive. See, e.g., Caron, D., “The legitimacy of the collective authority of the Security Council”, American Journal of International Law, Vol. 87, 1993, pp. 352 ffGoogle Scholar; Kirgis, F.L., “Claims settlement and the United Nations legal structure” in Lillich, R.B. (ed.), The United Nations Compensation Commission (Thirteenth Sokol Colloquium), Transnational Publishers, New York, 1995, p. 103 ffGoogle Scholar; O'Brien, R.C., “The challenge of verifying corporate and government claims at the United Nations Compensation Commission”, Cornell International Law Journal, Vol. 31, 1998, p. 1 ffGoogle Scholar; P. Malanczuk, « International business and new rules of State responsibility?–The law applied by the United Nations (Security Council) Compensation Commission for claims against Iraq” in K.-H. Böckstiegel (ed.), Perspectives of Air Law, Space Law and International Business Law for the Next Century, 1995, pp. 117 ff; Schneider, M.E., “How fair and efficient is the United Nations Compensation Commission system?”, journal of International Arbitration, Vol. 15, 1998, pp. 15 ffGoogle Scholar; Ch.L Lim, “On the law, procedures and politics of United Nations Gulf war reparations”, Singapore Journal of International and Comparative Law, 2000, pp, 435 ff. See the Commission's website <www.uncc.ch> for a full bibliography and for other information and documentation on the Commission.
3 Op. cit. (note 1), paras. 18 and 19.
4 Report of the Secretary-General Pursuant to Paragraph 19 of Security Council Resolution 687 (1991), UN Doc. S/22559 (1991).
5 UN Doc. S/RES/692 (1991).
6 On the role of the commissioners, see R.C. O'Brien, op. cit. (note 2), pp. 14–31.
7 For further description of the role played by the secretariat, see R.C. O'Brien, Ibid., pp. 9–13. See also Wühler, N., “The United Nations Compensation Commission: A new contribution to the process of international claims resolution”, journal of International Economic Law, Vol. 2, 1999, pp. 249–272.CrossRefGoogle Scholar
8 It has been written that “[w]hile it is the Commission's aim to exert maximum objectivity, transparency and fairness in reviewing claims and providing compensation to claimants, the exigencies of processing such a large number of claims within a reasonable time period (…) imposed certain restrictions on the procedures applied by the Commission”; Kazazi, M., “An overview of evidence before the United Nations Compensation Commission”, International Law Forum, Vol. 1, 1999, p. 219, pp.219–220.CrossRefGoogle Scholar
9 Op. cit. (note 4), para. 20.
10 Provisional Rules for Claims Procedure (“the Rules”), annexed to Governing Council Decision 10, UN Doc. S/AC.26/1992/10. In many instances claimants are generally permitted only one submission in which to prove their claims. See also: R.C. O'Brien, op. cit. (note 2), and “Report and Recommendations made by the Panel of Commissioners Concerning the Fourth Instalment of ‘E3’ Claims”, UN Doc. S/AC.26/1999/14, paras. 61–62. More generally, see articles 16 and 36–39 of the Rules. See also the changes introduced to the Commission's rules of procedure by Governing Council Decisions 114 (2000) and 124 (2001), discussed in Ch. L. Lim, op. cit. (note 2).
11 Op. cit. (note 1), para. 19.
12 Letter dated 30 May 1991 from the Secretary-General Addressed to the President of the Security Council, UN Doc. S/22661 (1991). The note sets out the calculations used by the Secretary-General in order to arrive at this percentage, including the expectation that oil exports would reach US$21 billion by 1993.
13 UN Doc. S/RES/705 (1991).
14 UN Doc. S/RES/706 (1991).
15 UN Doc. S/RES/712 (1991).
16 UN Doc. S/RES/661 (1990).
17 UNSCOM was replaced by the United Nations Monitoring, Verificiation and Inspection Commission (UNMOVIC), upon the adoption of Security Council Resolution 1284 on 17 December 1999, UN Doc. S/RES/1284 (1999).
18 See the website of the Office of the Iraq Programme for further information: <www.un.org/Depts/oip>.
19 See the Commission's website, op. cit. (note 2) (via the link named “Payment Procedure”) for further information on these Security Council resolutions.
20 UN Doc. S/RES/1153 (1998).
21 UN Doc. S/RES/1284 (1999).
22 UN Doc. S/RES/1330 (2000).
23 See the website of the Security Council Committee established pursuant to Resolution 661 (1990) concerning the situation between Iraq and Kuwait: <www.un.org/Docs/sc/committees/lraqKuwait/lraqSanctionsCommEng.htm>.
24 UN Doc. S/RES/1483 (2003).
25 For further details on the modalities of the transfer and the proposed future role of the United Nations in Iraq see Report of the Secretary-General pursuant to paragraph 24 of Security Council Resolution 1483 (2003), UN Doc. S/2003/715.
26 See Governing Council Decision 6, “Arrangements for Ensuring Payments into the Compensation Fund”, UN Doc. S/AC.26/1991/6.
27 Various forms of these arrangements were later incorporated into the operations of the Oil-for-Food Programme; see note 18 above.
28 See further: <http://www.unog.ch/uncc/status.htm>.
29 UN Doc. S/AC.26/1991/1.
30 C. Alzamora, “The UN Compensation Commission: An overview” in R.B. Lillich (ed.), op. cit. (note 2), p. 6. He went on to state, regarding the fixed amounts in categories “A” and “B”, that “[t]hese fixed amounts might appear very small to Western eyes, but may make all the difference when a person has lost everything and has to start from nothing in a small town in Sri Lanka or Bangladesh”.
31 Article 28(2) of the Rules (op. cit. (note 10)) provides that “[p]riority is to be given to the establishment of panels of commissioners to deal with claims in categories A, B and C”.
32 These procedures, which, in article 37 of the Rules (Ibid.) the Governing Council urged the panels to use, include sampling, computerised matching and statistical modelling, drawing on the experience in various international and national fora on these matters. See, e.g., on sampling methodologies and statistical methods, the review undertaken in the “Report and Recommendations Made by the Panel of Commissioners Concerning the Fourth Instalment of Claims for Departure from Iraq or Kuwait”, UN Doc. S/AC.26/1995/4, paras. 9–34. At paragraph 9, the panel stated that: “[f]aced with situations of mass claims and other situations where a large number of cases involving common issues of law and fact arise, courts, tribunals and commissions have adopted methodologies, including that of sampling, recognizing that the traditional method of individualised adjudication if applied to such cases would not be appropriate as it would result in unacceptable delays and substantially increase the burden of costs for such claimants and more so for the respondents. The legal principle involved may be stated as follows: in situations involving mass claims or analogous situations raising common factual and legal issues, it is permissible in the interest of effective justice to apply methodologies and-procedures which provide for an examination and determination of a representative sample of these claims”. See also M. Raboin, “The provisional rules for claims procedure of the United Nations Compensation Commission: A practical approach to mass claims processing”, and C. Gibson, “Mass claims processing. Techniques for processing over 400,000 claims for individual loss at the United Nations Compensation Commission”, both in R.B. Lillich (ed.), op. cit. (note 2), pp. 119 and 155 respectively.
33 Decision 1, op. cit. (note 30), paras. 11 and 12. See also article 35(2) of the Rules, op. cit. (note 10).
34 See, e.g. the “Report and Recommendations of the Panel of Commissioners Concerning Individual Claims for Damages up to US$100,000”, UN Doc. S/AC.26/1994/3 (“the First “C” Report”), pp. 82–128. That panel, like other panels, relied on the following United Nations reports documenting the situation following the liberation of Kuwait in 1991 (see p. 270 of the First “C” Report): Report on the Situation of Human Rights in Kuwait Under Iraqi Occupation, Prepared by Mr. Walter Kälin, Special Rapporteur of the Commission on Human Rights, in Accordance with Commission Resolution 1991/67, UN Doc. E/CN.4/1992/26, 16 January 1992; Report to the Secretary-General by a United Nations Mission, ted by Mr. Abdulrahim A. Farah, Former Under-Secretary-General, Assessing the Scope and Nature of Damage Inflicted on Kuwait's Infrastructure During the Iraqi Occupation of the Country from 2 August 1990 to 27 February 1991, UN Doc. S/22535, 29 April 1991; Study Concerning the Right to Restitution, Compensation and Rehabilitation of Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final Report Submitted by Mr. Theo van Boven, Special Rapporteur, UN Doc. UN Doc E/CN.4/SUD.2/1993/8, 2 July 1993; and Report to the Secretary-General on Humanitarian Needs in Kuwait in the Immediate Post-Crisis Environment by a Mission to the Area led by Mr. Marti Ahtisaari, Under-Secretary-General for Administration and Management, UN Doc. S/22409, 28 March 1991.
35 See Governing Council Decisions 3 (“Personal Injury and Mental Pain and Anguish”, UN Doc. S/AC.26/1991/3) and 8 (“Determination of Ceilings for Compensation for Mental Pain and Anguish”, UN Doc S/AC.26/1992/8).
36 See the discussion in the First “C” Report, pp. 82–96. See also the “Report and Recommendations of the Panel of Commissioners Concerning the Seventh Instalment of Individual Claims for Damages up to US$100,000”, UN Doc. S/AC.26/1999/11 (the Seventh “C” Report), paras. 94–110.
37 See the First “C” Report, op. cit. (note 35), pp. 271–272.
38 The processing methodologies and further details of the circumstances of these claims are discussed in the First “C” Report, op. cit. (note 35), pp. 97–128. See also the Seventh “C” Report, op. cit. (note 37), paras. 113–177, and pp. 241–270 of the First “C” Report (“Report of the Panel of Experts Appointed to Assist the United Nations Compensation Commission in Matters Concerning Compensation for Mental pain and Anguish”), for discussion of further considerations that went into determining the appropriate level of compensation for claims for mental pain and anguish.
39 See Governing Council Decision 7, “Criteria for Additional Categories of Claims”, UN Doc. S/AC.26/1991/7/Rev.1, and article 38 of the Rules, op. cit. (note 10).
40 See article 35(3) of the Rules, Ibid.
41 See Governing Council Decision 46, UN Doc. S/AC.26/Dec.46 (1998).
42 See, for example, the “Report and Recommendations made by the Panel of Commissioners Concerning the Fourth Instalment of ‘E3’ Claims”, UN Doc. S/AC.26/1999/14, paras. 58–60:
“ … in order for evidence to be considered appropriate and sufficient to demonstrate a loss, the Panel expects claimants to present to the Commission a coherent, logical and sufficiently evidenced file leading to the financial claims that they are making. (…) Of course, the Panel recognises that in time of civil disturbances, the quality of proof may fall below that which would be submitted in a peace time situation. Persons who are fleeing for their lives do not stop to collect the audit records. Allowances have to be made for such vicissitudes. But the fact that offices on the ground in Kuwait, for example, were looted and/or destroyed would not explain why claimants have not produced documentary records that would reasonably be expected to be found at claimants' head offices situated in other countries (…) The Panel has approached the claims in the light of the general and specific requirements to produce documents noted above. Where there has been a lack of documentation, combined with no or no adequate explanation for that lack, and an absence of alternative evidence to make good any part the Panel has had no opportunity or basis upon which to make a recommendation”.
See generally paragraphs 40 and 46–60, as well as articles 35, 36 and 38 of the Rules, op. cit. (note 10).
43 “Priority of Payment and Payment Mechanism (Guiding Principles)”, UN Doc. S/AC.26/Dec.17 (1994).
44 However, later in 1996, the secretariat found itself perilously close to running out of operational funds until income received under Resolution 986 (1995) became available.
45 “Priority of Payment and Payment Mechanism (Phase II)”, UN Doc. S/AC.26/Dec.73 (1999).
46 “Distribution of Payments and Transparency”, UN Doc. S/AC.26/Dec. 18 (1994).
47 “Return of Undistributed Funds”, UN Doc. S/AC.26/Dec. 48 (1998).
48 N. Wühler, op. cit. (note 7).
49 On 15 October 1996, the Governing Council decided that all requests for the acceptance of the submission of late claims in categories “E” and “F” “have to be submitted to the UNCC before 1 January 1997, after which no late claims may be accepted under any circumstances”, and directed the secretariat to return any claims received thereafter to the relevant submitting entity upon receipt. See Documents of the United Nations Compensation Commission, UN Doc. S/AC.26/Ser.A/1, p. 179. In February of the same year, the Governing Council, while considering a request for the submission of late claims, had stated that its “case-by-case consideration of claims in categories “E” and “F”…would be very strict, considering that most of the claims involved corporations and State entities and were therefore difficult to justify”; Ibid., p. 177.
50 See Decision 101, UN Doc. S/AC.26/Dec. 101(2000).
51 “Claims for which Established Filing Deadlines are Extended”, UN Doc. S/AC.26/1992/12.
52 See, e.g., the final report and recommendations made by the category “C” panel of commissioners, UN Doc. S/AC.26/1999/11, paras. 17–19.
53 “Eligibility for Compensation of the Members of the Allied Coalition Armed Forces”, UN Doc. S/AC.26/1992/11.
54 “Report and Recommendations Made by the Panel of Commissioners Concerning Part One of the Second Installment of Claims for Serious Personal Injury or Death (Category ‘B’ Claims)”, UN Doc. S/AC.26/1999/4, para. 14.
55 “Report and Recommendations Concerning the Third Instalment of ‘F2’ Claims, UN Doc. S/AC.26/2002/7, paras. 215–224.
56 “Military Costs”, UN Doc. S/AC.26/Dec.19 (1994).
57 Article 31 of the Rules, op. cit. (note 10), on the Commission's applicable law, provides that the Commissioners “will apply Security Council resolution 687 (1991) and other relevant Security Council resolutions, the criteria established by the Governing Council for particular categories of claims, and any pertinent decisions of the Governing Council. In addition, where necessary, Commissioners shall apply other relevant rules of international law”. Accordingly, it is only where an issue has not been covered in any resolution of the Security Council or in any decision of the Governing Council that the commissioners are to have recourse to “other relevant rules of international law”.
58 Op. cit. (note 49), para. 220.
59 Concerning the part of the claim for the costs of support that the Saudi Government continued to provide to those Iraqi prisoners of war who refused to be repatriated to Iraq upon the cessation of hostilities, the panel found that the decision by those prisoners of war not to return to Iraq, as well as the decision by Saudi Arabia to continue to provide support to those prisoners after they refused to be repatriated, were independent decisions on the part of the prisoners of war and Saudi Arabia that broke the chain of causation between the costs of support incurred, on the one hand, and the invasion and occupation of Kuwait on the other. Accordingly, this part of the claim was also found not to be compensable; Ibid., para. 223.
60 See Governing Council Decision 7, op. cit. (note 40), paragraphs 22 and 36. The latter paragraph provides that compensation payments will be provided for, inter alia “losses and costs incurred by a Government in evacuating its nationals from Iraq or Kuwait. These payments are also available to reimburse payments made or relief provided by Governments or international organizations to others – for example to nationals, residents or employees or to others pursuant to contractual obligations – for losses covered by any of the criteria adopted by the Council”.
61 See, e.g. “The Report and Recommendation of the Panel of Commissioners Concerning the First Instatment of ‘F2’ Claims”, UN Doc. S/AC.26/1999/23, paras. 7–12.
62 Ibid., paras. 29–31.
63 Ibid., paras. 100–105.
64 Ibid., paras. 32–37.
65 See also the treatment of claims of Jordan for the environmental damage and depletion of natural resources (mainly water) alleged to have been caused by the influx of refugees; “Report and Recommendations Made by the Panel of Commissioners Concerning the First Instalment of ‘F4’ Claims”, UN Doc. S/AC.26/2001/16, para. 297 ff.
66 See also, for example, the treatment by the Commission of claims for the costs of humanitarian relief provided to Kurdish refugees. In one such claim, the Iranian Ministry of Interior sought compensation for costs it allegedly incurred in providing assistance from March 1991 to December 1993 to approximately 1.4 million Iraqi nationals, mostly of Kurdish origin, who began arriving in Iran after 15 March 1991. The claimant stated that the majority of the refugees stayed in Iran for several months before returning to Iraq, while some of them stayed in Iran for “several years”. The claimant stated that it established reception centers and camps in Iran to accommodate the refugees, and that it provided them with food, shelter, clothing, medicine and other basic necessities “on an emergency basis”. It should be borne in mind that the Commission's previous jurisprudence established that alleged losses occurring outside the period of Iraq's invasion and occupation of Kuwait (i.e., 2 August 1990 to 2 March 1991) required a claimant to discharge an extra burden of proof to provide an explanation as to why such loss should be considered a direct result of Iraq's invasion and occupation of Kuwait; see, e.g. “Report and Recommendations Made by the Panel of Commissioners Concerning the Fourth Instalment of ‘F1’ Claims”, UN Doc. S/AC.2000/13, para. 70. The claimant specifically argued that “the Allied Coalition Forces encouraged civil unrest and rebellion in Iraq as part of their military strategy against Iraq and that they undertook military operations that inevitably led to the breakdown of civil order in Iraq. It alleges that the exodus of the (…) refugees from Iraq to Iran was, therefore, part of a natural sequence of events that was started by Iraq's invasion and occupation of Kuwait and that resulted in a foreseeable manner in the losses claimed in respect of the (…) refugees”. The panel ruled as follows: “[t]he Panel recognizes that a considerable effort was exerted by Iran to provide humanitarian relief to the Iraqi nationals. However, the Panel finds that the claim for costs incurred in providing assistance to the (…) refugees is not compensable in principle, as the presence of those refugees in Iran was not a direct result of Iraq's invasion and occupation of Kuwait. Rather, the evidence demonstrates that the (…) refugees arrived in Iran as a direct result of Iraq's suppression of uprisings involving Kurdish people in the north of Iraq, and the Shia population in the south. The Panel does not consider that either the suppression of uprisings or the subsequent exodus of refugees from Iraq was a natural and foreseeable consequence of Iraq's invasion and occupation of Kuwait”; “Report and Recommendations Made by the Panel of Commissioners Concerning the Sixth Instalment of ‘F1’ Claims”, UN Doc. S/AC.2002/6, paras. 154–174. Another reason for the non-compensability of such claims is the fact that many of the Kurdish refugees had Iraqi nationality. As the same panel stated in another report in the context of a claim that also involved Kurdish refugees, “[t]he Panel recognizes that the Governing Council in decision 7, para. 11, stated that ‘[c]laims will not be considered on behalf of Iraqi nationals who do not have bona fide nationality of any other State’. The Panel therefore considers that compensation [is] not be awarded to a Government to reimburse contributions made to persons who would not be eligible to seek compensation from the Commission in their own capacity. Accordingly, the Panel finds that relief contributions made by the Government of Canada to assist Iraqi nationals who do not have bona fide nationality of any other State are not compensable”; “Report and Recommendations Made by the Panel of Commissioners Concerning the Fourth Instalment of ‘F1’ Claims”, UN Doc. S/AC.2000/13, para. 72.
67 “Report and Recommendations Made by the Panel of Commissioners Concerning the Fourth Instalment of ‘F1’ Claims”, UN Doc. S/AC.26/2000/13, para. 21.
68 “Report and Recommendations Made by the Panel of Commissioners Concerning the Ninth Instalment of ‘E2’ Claims”, UN Doc. S/AC.26/2001/17, paras. 155–165.
69 Ibid.
70 “Report and Recommendations Made by the Panels of Commissioners Concerning the Second Instalment of ‘E2’ Claims”, UN Doc. S/AC.26/1999/6, para. 55.
71 See N. Wühler, op. cit. (note 7), and C. Alzamora, op. cit. (note 31).
72 See text accompanying notes 13–16 above.
73 See note 32 above.
74 See text accompanying notes 8–10 (section 1) and 29–42 (section 3) above.
75 See text accompanying notes 37 and 38 above.