Skip to main content Accessibility help
×
Home

United Nations Compensation Commission Governing Council Decisions 36 to 42 and Associated Panel Reports*

Published online by Cambridge University Press:  18 May 2017

Abstract

Image of the first page of this article
Type
Judicial and Similar Proceedings
Copyright
Copyright © American Society of International Law 1997

Access options

Get access to the full version of this content by using one of the access options below.

Footnotes

*

[UNCC Governing Council Decisions 36 to 42 and the Associated Panel Reports are provided to International Legal Materials by the United Nations. Decisions 36-42 of the Governing Council are reproduced from UN Documents S/AC.26/Dec.36, of May 30, 1996; S/AC.26/Dec.37, of July 24, 1996; S/AC.26/Dec.38, of October 16, 1996; S/AC.26/Dec.39, of December 18, 1996; S/AC.26/Dec.4O, of December 18, 1996; S/AC.26/Dec.41, of June 25, 1997; and S/AC.26/Dec.42, of June 26, 1997. The Associated Panel Reports are reproduced from UN Documents S/AC.26/1996/1, of May 30, 1996; S/AC.26/1996/2, of July 24, 1996; S/AC.26/1996/3, of October 16, 1996; S/AC.26/1996/4, of December 18, 1996; S/AC.26/1996/5/Annex, of December 18, 1996; S/AC.26/1997/1, of June 25, 1997; and S/AC.26/1997/2, of June 26, 1997. The Introductory Note was prepared for ILM by David D. Caron, Professor of Law at the University of California at Berkeley and Commissioner, E2 Panel, United Nations Compensation Commission. This Introductory Note represents the personal views of Professor Caron and not the views of the United Nations Compensation Commission.

[Governing Council Decision 1, of July 25, 1991, and Decision 2, of August 2, 1991, provide guidelines for the conduct of the work of the Governing Council of the UNCC and can be found at 30 I.L.M. 1712 (1991) and 30 I.L.M. 1714 (1991).

[Decisions 3-13 of the Governing Council, which set forth provisional procedural rules, develop arrangements to ensure payments to the Compensation Fund, and establish the basic criteria for six categories of claims, and an Introductory Note by David D. Caron, are reproduced at 31 I.L.M. 1009 (1992).

[Decisions 14-23, and an Introductory Note by David D. Caron, are reproduced at 34 I.L.M. 235 (1995). The May 26, 1994, Recommendations made by the Panel of Commissioners concerning Individual Claims for Serious Personal Injury or Death (Category “B” Claims) can be found at 34 I.L.M. 263 (1995). The October 21, 1994, Report and Recommendations made by the Panel of Commissioners concerning the First Instalment of Claims for Departure from Iraq or Kuwait (Category “A” Claims) appear at 34 I.L.M. 305 (1995).

[Decisions 24, 30, and 35 and Panel reports associated with Category “A” Claims, Category “B” Claims, and Category “C” Claims, which deal with the coordination and filing of claims, the timing of review of claims, methodologies for verifying mass claims, and evidentiary issues, and an Introductory Note by David D. Caron are reproduced at 35 I.L.M. 939 (1996).

[ILM also carried U.N. Security Council Resolution 687 (1991) of April 3, 1991, which addresses Iraq's liability in the Persian Gulf conflict and payment of claims, at 30 I.L.M. 852 (1991). Security Council Resolution 692 (1991) of May 20, 1991, which sets up the Compensation Commission and Fund, appears at 30 I.L.M. 864 (1991). The May 2, 1991, Report of the Secretary-General on Claims Procedures is reproduced at 30 I.L.M. 1706 (1991). Security Council Resolution 705 (1991) deciding Iraqi compensation payment as a percentage of oil export value appears at 30 I.L.M. 1715 (1991). Security Council Resolution 706 (1991) authorizing states to import oil from Iraq pursuant to certain conditions appears at 30 I.L.M. 1716 (1991). Security Council Resolution 712 (1991) regarding release of sum from escrow account to meet Iraqi humanitarian needs is reproduced at 30 I.L.M. 1730 (1991).]

References

1 United Nations Press Release, “United Nations Compensation Commission Pays Out $144 Million,” 12 March 1997.

2 35 I.L.M. 969 (1996).

3 In Decision 42 (June 26,1997) of the Governing Council, corrections were made to recommended awards in the Second and Sixth Installments of Category “A“ claims.

4 The WBC claim was filed with the Commission as a Category E (Corporate) claim. Two preliminary and related issues raised as a consequence were whether the claim should have been filed as a Category F (Government) claim and whether KOC was the proper party to raise the claim. The Panel concluded that “the categorization of a claim as a category E or F claim does not entail any substantive consequences.” The question of whether KOC was the proper party in the claim was addressed through the conclusion that KOC claimed on behalf of Kuwait's petroleum sector as a whole. It should be noted that unlike the pattern of one panel per category which has been followed for Categories A, B, and C, it is envisaged that the claims in at least Categories E and F will be addressed via several panels per category. The WBC Panel is the first E panel and is thus termed the “El Panel.” The El Panel was reappointed by the Governing Council in June 1997 to address all Kuwait petroleum sector claims.

5 Aspects of this Decision are discussed in Robert C. O'Brien, The Challenge of Verifying Corporate and Government Claims at the United Nations Compensation Commission, Cornell INT'L L.J.(forthcoming Fall 1997).

1/ The text of the report is attached hereto (document S/AC.26/1996/3). In conformity with the provisions on confidentiality in the Provisional Rules for Claims Procedure (articles 30, paragraph 1, and 40, paragraph 5), a table containing the breakdown of the amounts to be paid to each individual claimant will not be made public, but will be provided to each respective Government and international organization separately.

2/ These claims were submitted before the Czech and Slovak Federal Republic ceased to exist. Awards of compensation will have to be paid to the Governments of the Czech Republic and the Slovak Republic, respectively, pursuant to an agreement between the two Governments

3/ In conformity with the provisions on confidentiality in the Provisional Rules for Claims Procedure (articles 30, paragraph 1, and 40, paragraph 5), a table containing the breakdown of the corrected amounts to be paid to each individual claimant will not be made public, but will be provided to each respective Government and international organization separately

4/ These claims were submitted before the Czech and Slovak Federal Republic ceased to exist. Awards of compensation will have to be paid to the Governments of the Czech Republic and the Slovak Republic, respectively, pursuant to an agreement between the two Governments

a/ These claims were submitted before the Czech and Slovak Federal Republic ceased to exist. Awards of compensation will have to be paid to the Governments of the Czech Republic and the Slovak Republic, respectively, pursuant to an agreement between the two Governments

b/ These claims were submitted before the Czech and Slovak Federal Republic ceased to exist. Awards of compensation will have to be paid to the Governments of the Czech Republic and the Slovak Republic, respectively, pursuant to an agreement between the two Governments

1/ The recommendations concerning the first instalment of claims are contained in the “Report and Recommendations Made by the Panel of Commissioners Concerning the First Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ Claims)(S/AC.26/1994/2, the “first report). General information regarding the establishment of the United Nations Compensation Commission in the aftermath of the Gulf crisis as well as the composition of the Panel are contained in the introduction to the first report. The recommendations concerning the second instalment of claims are contained in the “Report and Recommendations Made by the Panel of Commissioners Concerning the Second Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ Claims)” (S/AC.26/1995/2, the “second report“). The recommendations concerning the third instalment of claims are contained in the “Report and Recommendations Made by the Panel of Commissioners Concerning the Third Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ Claims)” (S/AC.26/1995/3, the “third report“). The recommendations concerning the fourth instalment of claims are contained in the “Report and Recommendations Made by the Panel of Commissioners Concerning the Fourth Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ claims)” (S/AC.26/1995/4, the “fourth report“). The recommendations concerning the fifth instalment of claims are contained in the “Report and Recommendations made by the Panel of Commissioners Concerning the Fifth Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ Claims)” (S/AC.26/1995/5, the “fifth report“).

2/ For a more detailed description of the nature of category “A” claims, the Claim Form “A”, and the amounts that can be claimed under this category, see section I of the first report.

3/ For a detailed description of the matching methodology see section IV.D. of the first report.

4/ For a detailed description of the sampling methodology see section IV.E. of the fourth report.

5/ The Panel notes that while the sixth report concludes the review of all the category “A” claims filed with the Commission it may be necessary to report subsequent corrections and amendments that may arise in the future, pursuant to article 41 of the Rules. The Panel also notes that the total number of category “A” claims reviewed by the Panel in instalments one through six is less than the total number of category “A” claims reported in the Executive Secretary's reports to the Governing Council pursuant to article 16 of the Rules. These differences are as a result of a combination of factors (e.g., consolidated claims withdrawn then resubmitted, in total or in part; claims that, for technical reasons, were not originally reflected in the database; and duplicate claims).

6/ This amount may still be changed to the lower individual amount of US$2,500, pursuant to the Governing Council's decision on “Multi-Category Claims” [S/AC.26/Dec.21 (1994), Decision 21], if the check across claims categories determines that a category “A” claimant filing for the higher individual or family amount has also filed a claim in categories “B”, “C” or “D”. This cross-category check will be carried out against category “C” and “D” claims as they are loaded into the computerized database (see para. 24, of this report).

7/ Since subsequent payments beyond the initial US$2,500 to be paid to successful claimants pursuant to the Governing Council's decision on “Priority of payment and payment mechanism” [S/AC.26/Dec.17 (1994), Decision 17] are not expected to be made before the loading of all of the category “C” and “D” claims into the Claims Database is completed, the implementation of these reductions in award amounts will not conflict with the Commission's projected payment schedule.

8/ If the amount claimed under category “A” is US$2,500 or US$4,000, the amount to be deducted from the total amount to be recommended for the category “C” claim is US$2,500. If the amount claimed under category “A” is US$5,000 or US$8,000, the amount to be deducted from the total amount to be recommended in the category “C” claim is US$5,000.

9/ E.g., inter alia, those procedures relating to the “dominant and effective nationality” criterion established by the Iran-United States Claims Tribunal in case No. A-18 (Iran-United States Claims Tribunal Reports, vol. 5, 1984, pp. 251-266); the “real and effective nationality” criterion developed by the International Court of Justice in the Nottebohm case (I.C.J. Reports, 1955, pp. 4-27); and the “effective nationality” criterion used in the Canevaro arbitration (R.I.A.A., vol. 11, 1961, pp. 397-410). All of these precedents rely on the evaluation of the particular circumstances, both legal and factual, of each individual claimant.

10/ See para. 15 of the third report in which the Panel noted that, at its sixteenth session, the Governing Council had “decided to keep under advisement, and at an appropriate time consider, whether the Commission's procedures for making payments to successful claimants should be implemented as proposed by the Commissioners, i.e, that all successful claimants who had submitted category “A” claims for higher amounts but had not submitted claims in any other category, receive full payment of those amounts, pursuant to the terms of Decision 17, before any additional amounts beyond the initial US$2,500 are paid to the category “A” claimants who submitted claims for such higher amounts but had also filed claims in other categories. In considering this matter, the Governing Council would take into account the views of the secretariat regarding this proposal's feasibility and implications”.

1/ The text of the report is attached hereto (document S/AC.26/1997/2).

2/ In conformity with the provisions on confidentiality in the Provisional Rules For Claims Procedure (articles 30, paragraph 1, and 40, paragraph 5), a table containing the breakdown of the corrected amounts to be paid to each individual claimant will not be made public, but will be provided to each respective Government separately.

3/ This amount includes claims moved forward by the Governing Council from the fourth instalment to the second instalment for purposes of payment.

1 This amount includes claims moved forward by the Governing Council from the fourth instalment to the second instalment for purposes of payment

1 The text of the report is attached hereto (document S/AC.26/1996/1). For annex I, containing an expert opinion of statistical consultants and a technical description of statistical modelling, and annex II, containing the list of second instalment claims recommended for payment reported by country and international organization, see document S/AC.26/1996/R.3/Add.1/Rev.1 (in English only). In conformity with the provisions on confidentiality in the Rules (articles 30, paragraph 1, and 40, paragraph S), a table containing the breakdown of the amounts to be paid to each individual claimant, will not be made public, but will be provided to each respective Government and international organization separately

* See document S/AC.26/1996/R.3/Add.1/Rev.1 (in English only) for Annexes I and II. Distribution of Annex III is restricted to each respective submitting Government or international organization due to confidentiality.

1/ S/AC.26/1992/10.

2/ S/AC.26/1994/3.

3/ The comprehensive First Report noted that future reports covering further instalments were expected to be more concise. First Report, p. 2.

4/ As with the first instalment, the Panel has benefited from the mass claims-processing expertise of Professor Francis McGovern of the University of Alabama. As further described in paragraph 36 infra and annex I, in adopting statistical modelling as a means to resolve several loss types in category *C” claims, the Panel also relied on the advice of statistical experts. Professors Yves Balasko and Gilbert Ritschard of the University of Geneva.

5/ Pursuant to article 33(2) of the Rules.

6/ S/AC.26/1991/1.

7/ Idem.

8/ A consolidated claim filed by the Government of Egypt on behalf of 915,527 Egyptian workers is under review by a separate Panel of Commissioners.

9/ The terms “loss type” and “loss element” are used Inter changeably in this report. For a listing of loss elements, see First Report, p. 44, note 115.

10/ Ibid., pp. 2, 40-41 and 44-45.

11/ Ibid., pp. 40, 48, 138 and 181.

12/ Ibid., p. 39.

13/ In addition to C6-Salary losses, claims submitted by the Government of Egypt on page “C6” of the claim form for mental pain and anguish (“MPA”)related to the deprivation of all economic resources (“C6-MPA’ claims) were also included as a fast-track loss in the second instalment.

14/ First Report, pp. 47-48.

15/ Ibid., p. 36.

16/ The data capture for category “C” claims is conducted by the same company responsible for the data-entry of the Commission's category A” claims verification records. The data-entry firm makes use of input software designed by the secretariat to capture all information contained in or reflected by the completed claim forms. To record this information as accurately as possible, standard double-entry and compare methods are applied.

17/ First Report, pp. 42-43 and 53.

18/ The First Report addresses the background of these problems. While certain claimants understood the claim form, or received adequate assistance in the quantification and presentation of their damages, for the vast majority of individuals the completion of the claim form was a highly unusual and difficult exercise. In addition, not all claimants were able to benefit from the guidance of a well-organized national claims program. Ibid., pp. 42-43.

19/ Ibid.. p. 43.

20/ Ibid., pp. 41, 79 and 80.

21/ Ibid., p. 53.

22/ Similar quality control has been undertaken with regard to the claims submitted on diskette by the Governments of Kuwait and Egypt.

23/ See also First Report, p. 42.

24/ Ibid., pp. 39-47.

25/ Ibid., pp. 40-41. For a more detailed description of relevant precedents and sampling techniques, see ‘Report and Recommendations Made by the Panel of Commissioners Concerning the Fourth Instalment of Claims for Departure from Iraq or Kuwait (Category VA’ Claims)', S/AC.26/1995/4 (the “Fourth Category ‘A’ Report’). More than 500,000 category “A* claims were processed on the basis of sampling.

26/ See Fourth Category “A” Report, paras. 46-60.

27/ Ibid., paras. 51-53.

28/ Ibid., paras. 54-58.

29/ The claims submitted by Kuwaiti nationals that are included in the second instalment relate exclusively to this loss element. Claims filed by Kuwaiti nationals for hostage taking or illegal detention will be processed in future instalments.

30/ In view of their small number, claims filed by nationals of OECD countries for hostage taking or illegal detention for three days or less are to be reviewed separately at a later stage.

31/ The Panel's processing considerations for C1-MPA claims and the substantive criteria applied to verify and compensate such claims are set forth in the First Report, pp. 82-96. Furthermore, as a threshold requirement relevant to all category “C loss types, the Panel verified in the first instalment whether claimants were resident in Iraq or Kuwait at the time of the invasion. First Report, pp. 52-53 and 90. In the current sampling population, over 99 per cent of claimants provided evidence to support the fact of their residence in Iraq or Kuwait.

32/ Approximately Si per cent of claims filed by nationals of OECD countries for hostage taking or illegal detention for more than three days satisfied the Panel's criteria. With regard to claims for being forced to hide on account of a manifestly well-founded fear for one's life, all claims by nationals of OECD countries and 99.5 per cent of claims by Kuwaiti nationals satisfied the Panel's criteria. These results are consistent with United Nations reports regarding incidents and patterns of hostage taking, detention and forced hiding during the invasion and occupation of Kuwait.

33/ S/AC.26/1992/8. The Panel notes that some of the C1-MPA claims that satisfy the Panel's criteria for forced hiding or for hostage taking or illegal detention for more than three days do not indicate the number of days on the claim form. Where necessary, the Panel intends for such claims to be reviewed manually.

34/ First Report, p. 143.

35/ See also First Report, p. 129, note 257 and p. 132, note 258.

36/ First Report, p. 143.

37/ Ibid., pp. 146-147.

38/ See also First Report, pp. 144-147.

39/ For an explanation of the variables see annex I, infra.

40/ First Report, pp. 129-147.

41/ See also First Report, pp. 59-81.

42/ Ibid.. pp. 148-158.

43/ Idem.

44/ Claims not meeting the ownership test on the basis of the information contained in the database are to be reviewed separately.

45/ The MW Table provides standard market values indexed by make, model and year, for motor vehicles in Kuwait for the years 1980 to 1990. Where possible, the applicable MW Table value was determined and entered into the database as part of the data entry process.

46/ A more detailed description of the valuation method applied to C4-MV claims is contained in the First Report, pp. 155-157.

47/ Ibid., pp. 164-165.

48/ As mentioned in note 13, supra, the Panel also applied its fast-track processing approach to claims filed by the Government of Egypt for C6-MPA losses. Among the processing considerations described for this loss type in the First Report, the Panel notes in particular that the claimant's asserted deprivation of all economic resources should be clearly observable from the claim form and the attached documents. First Report, p. 194.

49/ This methodology takes into account a number of factors, including relevant Iraqi and Kuwaiti legislation, an expert study of entitlements payable upon termination of employment, the number and characteristics of the claims included in the first instalment, the number of claims expected in other instalments, and the evidence submitted in support of the claims. Ibid., pp. 168-194.

50/ For this purpose, a claimant's CS-Salary claim, in principle, is represented by the aggregate of the amount stated in the ‘Wages or Salary* and “Other* fields of the “C6* page of the claim form.

51/ First Report, p. 181. The number of C6-Salaxy claims is currently estimated to exceed 200,000.

52/ Ibid.. p. 170.

53/ Various forms of documentary evidence (e.g., employment contracts, pay stubs, employer affidavits, work permits) were the most common type of evidence submitted. A majority of claimants also included personal statements relating to their C6-Salary claim. Of those claimants who did not submit additional evidence for this loss type, almost all have provided verifiable employer or sponsor information on the claim form. The vast majority of claimants without additional evidence were found to be in the lower income group.

54/ S/AC.26/1991/1.

55/ For all potential compensation cap levels considered, the differences appeared to be minimal in terms of average and total monetary and percentage consequences, and in terms of the number of claimants affected.

56/ See S/AC.26/Dec.22 (1994) and S/AC.26/Dec.24 (1994).

57/ First Report, pp. 54-57 and 71-72.

58/ Ibid., pp. 32-33.

59/ See also S/AC.26/1992/16.

1 The text of the report is attached hereto (document S/AC.26/1996/2). In conformity with the provisions on confidentiality in the Rules (articles 30, paragraph 1, and 40, paragraph 5), the tables containing the breakdown of the amounts to be paid to each individual claimant will not be made public but will be provided to each respective Government separately.

1/ S/AC.26/1992/10.

2/ S/AC.26/1994/3.

3/ S/AC.26/1996/1 and S/AC.26/1996/1/Add.1/Rev.1.

4/ S/AC.26/Dec.25 (1994) and S/AC.26/Doc.36 (1996).

5/ The comprehensive First Report noted that future reports covering further instalments were expected to be more concise. First Report, p. 2.

6/ S/AC.26/1991/1.

7/ Idem.

8/ See First Report, pp. 49-208 and Second Report, paras. 24-51.

9/ The ‘fast-track’ processing approach is described in greater detail in the Second Report. See, in particular, paragraphs 8 through 14.

10/ Approximately 166,000 and 92,500 category “C” claims have been filed by the Governments of Kuwait and Egypt respectively.

11/ Pursuant to article 7(2) of the Rules.

12/ See Second Report, para. 18.

13/ See the discussion in the Second Report on the methodology used in resolving claims for forced hiding. Second Report, paras. 25-32.

14/ See Second Report, note 48.

15/ In connection with the rejection of these claims, the Panel notes in particular that the claimants’ asserted deprivation of all economic resources should be clearly observable from the claim form and the attached documents. See First Report, p.194 and Second Report, note 48.

16/ See S/AC.26/Dec.22 (1994) and S/AC.26/Dec.24 (1994).

17/ First Report, pp. 32-33.

18/ See also S/AC.26/1992/16.

1/ The text of. the report is attached hereto (document S/AC.26/1996/4) . In conformity with the provisions on confidentiality in the Provisional Rules for Claims Procedure (articles 30, paragraph 1, and 40, paragraph S), a table containing the breakdown of the amounts to be paid to each individual claimant will not be made public, but will be provided to each respective Government and international organization separately.

2/ In conformity with the provisions on confidentiality in the Provisional Rules for Claims Procedure (articles 30, paragraph 1, and 40, paragraph 5). a table containing the breakdown of the corrected amounts to be paid to each individual claimant will not be made public, but will be provided to each respective Government and international organization separately

1/ S/AC.26/1992/10.

2/ S/AC.26/1994/3.

3/ S/AC.26/1996/1 and S/AC.26/1996/1/Add.1/Rev.1.

4/ S/AC.26/1996/2.

5/ S/AC.26/Dec.2S (1994). S/AC.26/Dec.36 (1996) and S/AC.26/Dec.37 (1996)7

6/ S/AC.26/1991/1.

7/ S/AC.26/1991/1, para. 8.

8/ See First Report, pp. 49-208 and Second Report, paras. 24-51.

9/ The “fast-track” processing approach is described in detail in the Second Report. See, in particular, paras. 8-14.

10/ Approximately 166,000 and 92,500 category “C”claims have been filed by the Governments of Kuwait and Egypt, respectively.

11/ Pursuant to article 7(2) of the Rules.

12/ See Second Report, para. 18.

13/ See Second Report, paras. 19-22.

14/ Article 41(1) of the Rules states that ‘[c]omputational, clerical, typographical or other errors brought to the attention of the Executive Secretary within 60 days from the publication of the decisions and reports, will be reported by the Executive Secretary to the Governing Council.

15/ See the discussion in the Second Report on the statistical modelling methodologies used in resolving C1-Money and C4-CPHO claims, at paraa. 33-39.

16/ See the discussion in the Second Report on the C4-MV methodology, at paras. 40-41.

17/ See the discussion of *C5” bank accounts located in Kuwait in the Second Report, at paras. 42-43.

18/ See the discussion of the C6-Salary methodology in the First Report at pp. 168-194 and the Panel's review and analysis in the Second Report, at paras. 44-51.

19/ See the discussion in the Second Report on the methodology used in resolving C1-MPA claims. Second Report, paras. 25-32.

20/ See discussion of Cl-MPA claims in the First Report, particularly with respect to the categories of persons considered to have been forced to hide on account of a ‘manifestly well-founded fear* for their lives or of being taken hostage or illegally detained, pp. 92-96.

21/ See Second Report; note 48.

22/ S/AC.26/Oec.24 (1994). See also S/AC.26/Oec.21 (1994) and S/AC.26/Dec.l7 (1994).

23/ Pursuant to Governing Council decision 24 (S/AC.26/Oec.24 (1994)], any claimant who has filed an individual claim in category “A” and has also filed a claim for departure losses in category “C” may be compensated in category “C” only insofar as the amount of such losses is determined to exceed US$2,500. Any claimant who has filed a family claim in category “A*” and has also filed a claim for departure losses in category “C” may be compensated only insofar as the amount of such losses is determined to exceed US$5,000.

24/ As a result of the application of Governing Council decision 24 (S/AC.26/Dec.24 (1994)] to these claims, the amount calculated under category “C” has been entirely offset by the category “A” awards and, therefore, no amount of compensation is recommended for these category “C” claims.

25/ In connection with the rejection of these claims, the Panel notes in particular that the claimants’ asserted deprivation of all economic resources should be clearly observable from the claim form and the attached documents. See First Report, p. 194, Second Report, note 48, and Third Report, note 15.

26/ See discussion supra at para. 10.

27/ See S/AC.26/Dec.21 (1994) and S/AC.26/Dec.24 (1994).

28/ In the confidential reports that provide a breakdown of individual award amounts, governments and international organizations are requested to report to the Commission such instances that would result in overpayments to claimants.

29/ First Report, pp. 32-33.

30/ See also S/AC.26/1992/16

1 The text of the report is attached hereto (document S/AC.26/1997/1) . In conformity with the provisions on confidentiality in the Provisional Rules for Claims Procedure (articles 30, paragraph 1, and 40 paragraph 5) , a table containing the breakdown of the amounts to be paid to each individual claimant will not be made public but will be provided to each respective Government and international organization separately

1/ In conformity with the provisions on confidentiality in the Provisional Rules for Claims Procedure (articles 30, paragraph 1, and 40. paragraph 5), a table containing the breakdown of the corrected amounts to be paid to each individual claimant will not be made public, but will be provided to each respective Government and international organization separately

1/ S/AC.26/1992/10.

2/ S/AC.26/1994/3.

3/ S/AC.26/1996/1 and S/AC.26/1996/1/Add.1/Rev.1.

4/ S/AC.26/1996/2.

5/ S/AC.26/1996/4.

6/ S/AC.26/Dec.25 (1994), S/AC.26/Dec.36 (1996), S/AC.26/Oec.37 (1996) and S/AC.26/Oec.39 (1996).

7/ S/AC.26/1991/1.

8/ idem.

9/ See First Report, pp. 49-208 and Second Report, paras. 24-51.

10/ The “fast-track” processing approach is described in detail in the Second Report. See, in particular, paragraphs 8 through 14.

11/ See Second Report, para. 18.

12/ As previously stated, there are many difficulties inherent in processing category “C claims that derive from the condition, presentation and quality of the claims provided. See Second Report, paras. 19-23.

13/ See First Report, pp. 39-47. For a more detailed description of relevant precedents and sampling techniques, see “Report and Recommendations Made by the Panel of Commissioners Concerning the Fourth Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ Claims)”, S/AC.26/1993/4 (the “Fourth Category ‘A’ Report“). More than 300,000 category “A” claims were processed on the basis of sampling.

14/ See Second Report, paras. 25-32. These losses included claims by Kuwaiti nationals for forced hiding and claims by nationals of member countries of the organization for Economic cooperation and Development (OCCD) fox forced hiding, hostage taking or illegal detention for more than three days.

15/ see Second Report, para. 30, for considerations leading to the Panel's selection of C1-MPA claims.

16/ More than 99 percent of claimants were able either to provide information from their government confirming that they were held hostage or illegally detained or to establish specific circumstances or events relevant to their detention or hostage-taking so as to ascertain the location where they were taken hostage or illegally detained, the date of their capture or arrest, the specific identity of their captors or the date they were released from captivity

17/ The Panel's processing considerations for C1-MPA claims and the substantive criteria applied to verify and compensate such claims are set forth in the First Report, pp. 82-96. As a threshold requirement relevant to all category “C” loss types, the Panel verified in the first instalment whether claimants were resident in Iraq or Kuwait at the time of the invasion. First Report, pp. S2-S3 and 90. In the current sampling population, as in previous C1-MPA sampling projects approved by the Panel, over 99 percent of claimants provided evidence to support the fact of their residence in Iraq or Kuwait.

18/ In general, claimants in the sample slightly understated the number ST days supported by the evidence attached to their claim forms.

19/ See supra at note 18.

20/ S/AC.26/1992/8.

21/ See supra at para. 10 and Second Report, para. 30. While the cited sections refer specifically to the selection of candidates for C1-MPA sampling projects, the considerations are generally applicable to the selection of candidates for any sampling.

22/ For considerations and criteria applicable to C4-MV claimants in general, see First Report, pp. 148-158. For criteria specifically applicable to non-Kuwaiti C4-MV claimants, see Second Report, paras. 40-41.

23/ MW Table provides standard market values indexed by make, model and year, for motor vehicles in Kuwait for the years 1980 to 1990. After carefully reviewing the MVV Table and its preparation and considering alternative sources of automobile valuation information, the Panel adopted the MVV Table as the basis for a comparison of the amounts claimed with the value indicated for the underlying vehicle. First Report, pp. 156-157. PP. 59.

24/ For elaboration of all relevant criteria, see First Report, IT, 148-158.

25/ In the sample, the amount claimed was generally slightly less than the MW Table value for the underlying vehicle.

26/ See also Second Report, para. 41.

27/ See First Report, p. 143; second Report, paras. 20-21.

28/ see second Report, paras. 34-38.

29/ This methodology takes into account a number of factors, including relevant Iraqi and Kuwaiti legislation, an expert study of entitlements payable upon termination of employment, the number and characteristics of the claims included in the first instalment, the number of claims expected in other instalments, and the evidence submitted in support of the claims. First Report, pp. 168-194. In the Second Report, the compensation cap was modified to the lesser of the amount claimed or the application of a multiplier of seven to a claimant's pre-invasion monthly salary. Second Report, paras. 44-51.

30/ Analysis of the random sample determined that in more than 96 percent 57 the cases, the prior monthly salary was either clearly stated on the claim form or found in the attachments provided by the claimant. The modelling data set included only claims that had been individually reviewed with verified pre-invasion salary figures. The model included several variables: gender, marital status, year of birth, place of departure, amount claimed for C6-Salary, amount claimed for C4-CPHO, number of motor vehicles, and fact of claiming for household effects. The model was checked by comparing results to actual salaries in the sample. In nearly all cases, the results generated by the model approximated the verified pre-invasion salaries that were not included in the electronic format.

31/ Outliers are excluded from modelling data-sets pursuant to standard statistical practice. Retherford, Robert D. and Minja Kim Choe, statistical Models for Causal Analysis , (John Wiley and Sons, Inc. 1993), pp. 20-21. see also ‘Technical Description of statistical Modelling,” Annex I, para. 8, Addendum (S/AC.26/1993/R.3/Add.1/Rev.1), Second Report.

32/ This review included more than 6,400 non-Kuwaiti and non-Egyptian claims. Kuwaiti and Egyptian claims, where the total compensation amounts arrived at by application of the models were less than 3S percent of the total amounts claimed for C1-Money and C4-CPHO losses, will be reviewed at a later phase and are therefore not included in the fifth instalment.

33/ See the discussion in the Second Report on the statistical modelling methodologies used in resolving C1-Money and C4-CPHO claims, at paras. 33-39.

34/ see the discussion in the Second Report on the C4-MV methodology, at paras. 40-41.

35/ see the discussion of “C3” bank accounts located in Kuwait la the Second Report, at paras. 42-43.

36/ See the discussion of the C6 Salary methodology In the First Report at pp. 168-194 and the Panel's review and analysis in the Second Report, at paras. 44-51.

37/ see discussion of C1-MPA claims in the First Report, particularly with respect to the categories of persons considered to have been forced to hide on account of a ‘“manifestly wall-founded fear” for their lives or of being taken hostage or illegally detained, pp. 92-96 and Second Report, paras. 25-32.

38/ See Second Report, note 48.

39/ S/AC.26/Dee.24 (1994). See also S/AC.26/Dec.21 (1994) and s7AC.26/Dec.l7 (1994).

40/ Pursuant to Governing Council decision 24 [S/AC.26/Oec.24 (1994)], any claimant who has filed an individual claim in category “A” and has also filed a dais for departure losses in category “C may be compensated in category “C” only insofar as the amount of such losses is determined to exceed US$2,500. Any claimant who has filed a family claim in category “A” and has also filed a claim fox departure losses in category “C” may be compensated only Insofar as the amount of such losses is determined to exceed , US$5,000.

41/ As a result of the application of Governing Council decision 24 (S/AC.26/Dec.24 (1994)] to these claims, the amount calculated under category “c” has been entirely offset by the category “A” awards and, therefore, no amount of compensation is recommended for these category “C” claims.

42/ In connection with the rejection of these claims, the Panel notes in particular that the claimants’ asserted deprivation of all economic resources should be clearly observable from the claim form and the attached documents. See First Report, p. 194, Second Report, note 48, Third Report, note 15, and Fourth Report, note 25.

43/ See discussion supra at para. 13.

44/ In December 1996, the Governing Council accepted the Panel's recommendation that corrections be made to seven claims from the first instalment. S/AC.26/Dec. 39 (1996) and Fourth Report, para. 12.

45/ in December 1996, the Governing Council accepted the Panel's recommendation that pursuant to Decision 24, in the case of 42 confirmed matches of category “A” claims and category “C1” departure claims from the second instalment, appropriate deductions be made from the compensation awarded to the category “C claimants. Ibid., at para. 13.

46/ Until November 1996, all claims submitted by UNRWA Vienna were listed under the same country code as UNDP Jerusalem (UNDP/UNRKA). Thus, fifty claims from UNRHA Vienna were attributed in the second instalment to UNDP Jerusalem. supra were

47/ indeed, some corrections noted in paragraphs 21 and 22 required because of the subsequent discovery of duplicates.

48/ First Report, pp. 32-33.

49/ See also S/AC.26/1992/16

1/ The text of the executive summary is attached hereto (document S/AC.26/1996/5) For the annex, containing the text of the Panel's report and recommendations concerning the Well Blowout Control Claim, see document S/AC.26/1996/5/Annex.

1/ K.S.C. stands for “Kuwait Shareholding Company.1

2/ This amount is exclusive of interest and the costs of claim preparation. KOC claims interest “on the whole amount of the WBC Claim ac such reasonable commercial rate and for such period as the Commission may consider appropriate.“ KOC does not seek the costs of claim preparation at the present time. See infra paragraph 231. The WBC Exercise also covered the Wafra oil field, which is on the on-shore portion of the Divided Zone north of the international boundary between Kuwait and Saudi Arabia. In its initial submission the Claimant stated that it .had not sought to recover any costs relating to the WBC work performed on that field from Getty Oil Company, which at the time of the invasion was the relevant company, or its successor, Saudi Arabia Texaco (“SAT“), although the former company at the time had, and the latter currently has, a concession to Saudi Arabia's 50 percent share therein. The Claimant subsequently amended the Claim as regards the costs incurred in fighting fires in the Wafra oil field. See infra paragraph 26.

3/ S/AC.26/1992/10.

4/ “Report Submitted by the Executive Secretary to the Governing Council in Accordance with Article 16 of the Provisional Rules for Claims Procedure (Report No. 9)” (S/AC.26/1994/R.27).

5/ Following a procedure adopted by the Governing Council as its session held on 13 December 1995, instructing the Executive Secretary “to inform all Governments that have submitted claims which have already been sent to Panels of Commissioners that they may identify the identities of individuals and any other information that is confidential or privileged from a business perspective” so that such information could be removed from the documents before they are provided to others, the Claimant in a letter dated 14 February 1995 informed the secretariat that it had no objection to “[the] release [of] the relevant documents pertaining to the evaluation of the WBC Claim to the bodies and Government elected by the UNCC for their contribution towards reviewing the above claim.“

6/ Article 38 (d) of the Rules provides as follows: “Unusually large or complex claims may receive detailed review, as appropriate. If so, the panel considering such a claim may, in its discretion, ask for additional written submissions and hold oral proceedings. In such a case, the individual, corporation. Government, international organization or other entity making the claim may present the case directly to the panel, and may be assisted by an attorney or other representative of choice. The panel will complete its review of the case and report in writing through the Executive Secretary its recommendations to the Governing Council within twelve months of the date the claim was submitted to the panel.“

7/ The KOC and KOC-Al-Awda accounting systems are explained in paragraph 93, infra.

8/ Governing Council decision 35, “Decision Concerning Further Procedures for Review of Claims Under Article 38” (S/AC.26/Dec. 35), reads in relevant part as follows: “With respect to claims requiring additional proceedings under articles 36 and 38(d), the panel shall determine whether it requires time in excess of that available under article 3 8(d) to complete its review of the claims and the report and recommendations to the Governing Council. If the panel determines that such excess time is required, this determination shall be considered a request to the Governing Council for additional time pursuant to article 39. The Governing Council hereby approves up to six additional months in that event. A panel that avails itself of such additional time shall so inform the Governing Council through the Executive Secretary.“

9/ While Iraq presented a procedural request at the oral proceedings, its representatives stated that they were attending the proceedings “under protest.“ Iraq's attendance in the oral proceedings as well as the composition of its delegation were originally announced to the secretariat without such reservations.

10/ For the Panel's view regarding the exchange rate to be applied to convert the reduction into the United States dollars see infra paragraph 91.

11/ The terms “Al-Awda” and “Al-Tameer” are used in this report for ease of reference. The Claimant acknowledges that there is no clear dividing line between the projects connoted by the two terms.

12/ OFAC administered the sanctions regulations in the United

13/ Governing Council decision 7, “Criteria for Additional Categories of Claims” (S/AC.26/1991/7/Rev.1).

14/ See Governing Council decision 15, “Compensation for Business Losses Resulting from Iraq's Unlawful Invasion and Occupation of Kuwait where the Trade Embargo and Related Measures Were also a Cause” (S/AC.26/1992/15), paragraph 9 (IV); Governing Council decision 9, “Propositions and Conclusions on Compensation for Business Losses: Types of Damages and Their Valuation” (S/AC.26/1992/9), paragraphs 10, 17 and 19.

15/ The Security Council also acted under Chapter VII when making resolution 692 (1991), in which it decided to establish the Commission and the Compensation Fund referred to in paragraph 18 of resolution 687 (1991). Under article 29 of the Charter, “[t]he Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.“

16/ Accord “Report and Recommendations Made by the Panel of Commissioners Concerning the First Instalment of Individual Claims for Damages up to US$100,000 (Category ‘C ‘Claims)” (S/AC.26/1994/3), at 9: “Resolution 687 (1991) reaffirmed that Iraq was liable, under international law, for direct losses, damages or other injuries as a result of its unlawful invasion and occupation of Kuwait. Iraq's liability under international law for such losses having been reaffirmed by the Security Council, the issues remaining for the Panel are to determine the proper scope of causality--that is, determining for any particular claim or category of claims whether such loss or losses are a ‘direct’ result of Iraq's invasion and occupation--and to assess the. amount of the losses incurred.“

17/ See “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” (E/CN.4/1992/26) (the “Kälin Report“).

18/ The quoted .sections were included in section II of the Secretary-General's report, which the Governing Council was instructed to cake into account when implementing Security Council resolution 687 (1991). See paragraph 5 of Security Council resolution 692 (1991) (S/RES/692/1991).

19/ See supra paragraph 26.

20/ As the amendment involves a reduction in direct firefighting costs, see infra paragraph 218, it is reflected in the amount claimed under the heading “International firefighting and support services contractors.” The amount originally sought under this heading was USS207,794,621.

21/ The excluded cost codes, the balance of which is claimed in KOC's Physical Assets Claim, were as follows: D Drilling support F Facilities firefighting G Crude oil production H Oil field support K Kuwait (owner) companies L Local marketing M Marine facilities N Power distribution and others P Pipelines R Refineries T Crude oil transfer U Backcharge Y Major projects At the oral proceedings the Claimant explained that the costs incurred under the COCO code F (“Facilities firefighting”) refer to costs incurred with regard to reinstating KOC's own, “peace-time” firefighting facilities.v

22/ The remaining post-capping costs are claimed in KOC's Physical Assets Claim. See supra paragraph 38.

23/ Given that the amendment made by the Claimant involves a reduction in direct firefighting costs, see infra paragraph 218, it is reflected in revenue expenditure under KOC costs. The original amount of revenue expenditure was US$217,527,037.

24/ The systems tests were designed to verify whether the KOC and KOC - Al Awda systems worked effectively and the substantive tests were used to control whether the costs recorded were supported by appropriate documentation.

25/ The numbers do not reflect the reduction in the amount claimed subsequently made by the Claimant. See supra paragraphs 26 and 91. C£. paragraph 112.

26/ The Al-Tameer project was officially launched by a KOC circular dated 25 December 1991.

27/ Although the planning for the Al-Awda project commenced already in September 1990, see supra paragraph 31, it appears that no significant capital expenditure was incurred prior to March 1991, when the implementation of the WBC Exercise began.

28/ The figures include capital expenditure.

29/ Including amendment.

30/ The amount does not include any capital expenditure. See supra paragraph 143.

31/ The Panel understands that compensation for these losses is claimed in KPC's Production and Sales Loss Claim, filed with the UNCC on 20 May 1994.

32/ Including amendment. See supra note 20.

33/ The basis of the Panel's estimate has been explained in paragraph 133, supra.

34/ The basis of the Panel's estimate has been explained in paragraph 133, supra.

35/ The Claimant indicated in its responses to the Panel's interrogatories that Bechtel also managed the Oil Recovery Programme, which is covered by KOC's Environmental Damage Claim, filed with the UNCC on 18 April 1994.

36/ The claim was filed with the UNCC on 30 July 1993.

37/ The basis of the Panel's estimate has been explained in paragraph 133, supra.

38/ This amount is arrived at by deducting all of the capital expenditure claimed under the present heading, US$46,448,000, from the total amount claimed (US$120,958,852) and by then deducting from the resulting figure, US$74,510,852, the ordnance clearance costs (US$994,435).

39/ The basis of the Panel's estimate has been explained in paragraph 133, supra.

40/ The table is for presentation purposes only.

41/ Including ordnance clearance cost allocation.

42/ Including freight.

43/ Excluding freight.

44/ Governing Council_decision 16, “Awards of Interest” (S/AC.26/1992/16).

45/ KPC filed a claim for compensation of claim preparation costs on 8 September 1995.

Full text views

Full text views reflects PDF downloads, PDFs sent to Google Drive, Dropbox and Kindle and HTML full text views.

Total number of HTML views: 0
Total number of PDF views: 9 *
View data table for this chart

* Views captured on Cambridge Core between 18th May 2017 - 15th January 2021. This data will be updated every 24 hours.

Hostname: page-component-77fc7d77f9-cjctk Total loading time: 0.279 Render date: 2021-01-15T18:15:29.359Z Query parameters: { "hasAccess": "0", "openAccess": "0", "isLogged": "0", "lang": "en" } Feature Flags last update: Fri Jan 15 2021 17:51:03 GMT+0000 (Coordinated Universal Time) Feature Flags: { "metrics": true, "metricsAbstractViews": false, "peerReview": true, "crossMark": true, "comments": true, "relatedCommentaries": true, "subject": true, "clr": true, "languageSwitch": true, "figures": false, "newCiteModal": false, "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true }

Send article to Kindle

To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

United Nations Compensation Commission Governing Council Decisions 36 to 42 and Associated Panel Reports*
Available formats
×

Send article to Dropbox

To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

United Nations Compensation Commission Governing Council Decisions 36 to 42 and Associated Panel Reports*
Available formats
×

Send article to Google Drive

To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

United Nations Compensation Commission Governing Council Decisions 36 to 42 and Associated Panel Reports*
Available formats
×
×

Reply to: Submit a response


Your details


Conflicting interests

Do you have any conflicting interests? *