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The United Nations Compensation Commission—A New Structure to Enforce State Responsibility

  • John R. Crook (a1)

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In little over a year, the United Nations has created a new and innovative mechanism to collect, assess and ultimately provide compensation for hundreds of thousands—or even millions—of claims against Iraq for direct losses stemming from the invasion and occupation of Kuwait.

The UN Compensation Commission, an element of the United Nations response to Iraq’s August 1990 invasion of Kuwait, began operations in Geneva in July 1991. In seven formal sessions between July 1991 and September 1992, the Commission’s Governing Council adopted by consensus an innovative structure for collecting and verifying millions of potential claims. A small, but experienced, professional staff was recruited; it is headed by a distinguished Peruvian diplomat and includes legal experts with long experience at the Iran-U.S. Claims Tribunal in The Hague. The staff is at work in the Villa La Pelouse on the UN grounds in Geneva.

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1 SC Res. 687 (Apr. 3, 1991), reprinted in 30 ILM 846 (1991).

2 Report of the Secretary-General pursuant to paragraph 19 of Security Council resolution 687 (1991), UN Doc. S/22559 (1991), reprinted in 30 ILM at 1706.

3 SC Res. 692 (May 20, 1991), reprinted in 30 ILM at 846.

4 Supra note 2.

5 Decision taken by the Governing Council of the United Nations Compensation Commission at the 27th meeting, sixth session held on 26 June 1992, UN Doc. S/AC.26/1992/10, reprinted in 31 ILM 1053 (1992).

6 SC Res. 706 (Aug. 15, 1991), reprinted in 30 ILM at 1716, 27 Weekly Comp. Pres. Doc. 643 (Aug. 26, 1991). For SC Res. 712 (Sept. 18, 1991), implementing Resolution 706, see U.S. Dep’t of State, Dispatch, Sept. 23, 1991, at 696, 30 ILM at 1730.

7 SC Res. 674 (Oct. 29, 1990), reprinted in 29 ILM 1561 (1990).

8 Supra note 1. As noted in SC Res. 686 (Mar. 2, 1991), reprinted in 30 ILM at 567, Iraq confirmed its agreement to comply fully with SC Res. 674 (which reminded Iraq of its liability for loss resulting from the invasion and occupation) and other relevant resolutions.

9 United Nations Compensation Commission, Criteria for Expedited Processing of Urgent Claims, UN Doc. S/AC.26/1991/1, reprinted in 30 ILM at 1712 [hereinafter Decision 1]. The operative text of Decision 1 is also contained in Office of the Legal Adviser, Dep’t of State, Pub. Notice No. 148 (Sept. 10, 1991), reprinted in 86 AJIL 113 (1992).

10 Hague Convention (No. IV) Respecting the Laws and Customs of War on Land and annexed Regulations, Oct. 18, 1907, 36 Stat. 2277, TS No. 539, 1 Bevans 631.

11 Trial of Major German War Criminals, 1946, Cmd 6964, Misc. No. 12, at 65. See Theodor Meron, Human Rights and Humanitarian Norms as Customary Law 38–39 (1989).

12 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 3. Article 91 states that a party to a conflict “which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.”

13 Yeager v. Iran, 17 Iran-U.S. Cl. Trib. Rep. 92 (1987), summarized in 82 AJIL 353 (1988). See Charles N. Brower, The Lessons of the Iran-United States Claims Tribunal: How May They Be Applied in the Case of Iraq?, 32 Va. J. Int’l L. 421, 427 (1992).

14 Supra note 10.

15 E.g., the chilling preliminary report of the UN special rapporteur on the human rights situation in occupied Kuwait. Preliminary report on the situation of human rights in Kuwait under Iraqi occupation, UN Doc. A/46/544, at 9–27 (1991).

16 Article 33 of the fourth Geneva Convention prohibits pillage, while Article 53 bars an occupying power from destroying private or public property except where such destruction is rendered absolutely necessary by military operations. Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287. Iraq is a party to the 1949 Geneva Conventions.

17 Regulations Respecting the Laws and Customs of War on Land, supra note 10.

18 See, e.g., fourth Geneva Convention, supra note 16, Arts. 28, 29, 34, 38(4), 147.

19 Decision 1, supra note 9, para. 19.

20 Id., para. 17.

21 The issue of dominant and effective nationality has been difficult for the Iran-U.S. Claims Tribunal. The Tribunal early held that it had jurisdiction over the claims of dual nationals with dominant and effective U.S. nationality. Case No. A/18, 5 Iran-U.S. CI. Trib. Rep. 251 (1984). However, application of this rule has occasioned much controversy and delay. See Brower, supra note 13, at 429.

22 United Nations Compensation Commission, Guidelines Relating to Paragraph 19 of the Criteria for Expedited Processing of Urgent Claims, UN Doc. S/AC.26/1991/5, reprinted in 31 ILM at 1031.

23 United Nations Compensation Commission, Business Losses of Individuals Eligible for Consideration under the Expedited Procedures, UN Doc. S/AC.26/1991/4, reprinted in 31 ILM at 1030 [hereinafter Decision 4].

24 Housing & Urban Sci. Int’l v. Iran, 9 Iran-U.S. Cl. Trib. Rep. 313 (1985); United Painting Co. v. Iran, 23 id. at 351, 356–57 (1989); see Scribner K. Fauver, Note, Partnership Claims Before the Iran-United States Claims Tribunal, 27 Va. J. Int’l L. 307 (1987).

25 Decision 4, supra note 23, para. (d).

26 Id., para. (c).

27 Id., para. (e).

28 United Nations Compensation Commission, Criteria for additional Categories of Claims, UN Doc. S/AC.26/1991/7/Rev.1 (1992), reprinted in 31 ILM at 1045 [hereinafter Decision 7].

29 Id., para. 26.

30 Id., para. 16.

31 Id., para. 26.

32 Decision 4, supra note 23, para. (f).

33 Id.

34 Supra note 5.

35 Decision 1, supra note 9, paras. 11, 13.

36 Id., para. 11.

37 Id., para. 12.

38 Id., para. 15.

39 Id., para. 8.

40 Decision 7, supra note 28.

41 Id., para. 18.

42 United Nations Compensation Commission, Personal Injury and Mental Pain and Anguish, UN Doc. S/AC.26/1991/3, reprinted in 31 ILM at 1028.

43 Id. at 2.

44 Id.

45 United Nations Compensation Commission, Determination of Ceilings for Compensation for Mental Pain and Anguish, UN Doc. S/AC.26/1992/8, reprinted in 31 ILM at 1036.

46 United Nations Compensation Commission, Propositions and Conclusions on Compensation for Business Losses: Types of Damages and their Valuation, UN Doc. S/AC.26/1992/9, reprinted in 31 ILM at 1037 [hereinafter Decision 9].

47 SC Res. 661 (Aug. 6, 1990), reprinted in 29 ILM at 1323.

48 Decision 1, supra note 9, para. 16.

49 Decision 7, supra note 28, paras. 9, 24, 38.

50 Decision 9, supra note 46, para. 6.

51 Id.

52 Id., para. 8.

53 Id.

54 Id., para. 9.

55 Id., para. 10. This provision may be an important contributor to Iraq’s eventual liability, as many contract claims are expected to involve contracts to which Iraq was not a party.

56 Id., para. 11.

57 Id., para. 12.

58 Id., para. 15.

59 Id., para. 13.

60 Id., para. 14.

61 Id., para. 17.

62 Id., para. 16.

63 Id., para. 19.

64 Id., para. 18.

65 Id., para. 17.

66 United Nations Compensation Commission, Eligibility for Compensation of Members of the Allied Coalition Armed Forces, UN Doc. S/AC.26/1992/11, reprinted in 31 ILM at 1067.

* The views and opinions expressed are solely the author’s, and do not necessarily represent those of the U.S. Government.

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The United Nations Compensation Commission—A New Structure to Enforce State Responsibility

  • John R. Crook (a1)

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