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Between Iraq and a hard place: the U.N. Compensation Commission and the its treatment of Gulf War claims.
A mind that is diseased and feverish, being at the same time corrupt and an
agent of corruption, must be held in check by remedies as severe as the vices from which it suffers. Tacitus, Annals. III, liv(1) I. INTRODUCTION Though the techniques of warfare have changed through the ages, the results of war have not: every campaign leaves victims in its wake. Although in practice many of these victims are never compensated, it is well settled that proponents of unjust wars owe their victims restitution.(2) When these proponents lose, they can be made to pay. For two hundred years, international claims tribunals have enforced such obligations.(3) The philosophical authority for their existence lies in the work of Hugo Grotius.(4) In De Jure ac Pacis, Grotius writes that "restitution is due, from the authors of the war, for all evils inflicted: and for anything unusual which they have done, or not prevented when they could."(5) Restitution may be exacted for any of three purposes: correction, example, or retribution.(6) "Correction" is punishment applied "for the good of the wrong-doer;"(7) it has as its object "making better the man who has sinned."(8) "Example" is punishment applied to deter others from similar conduct, or "so that the punishment of one may cause many to fear;"(9) it is inflicted for the good of the whole, "to prevent others from being induced by a feeling of security to annoy any persons whatsoever."(10) "Retribution" is punishment intended to satisfy the person wronged.(11) Although many U.N. member states would likely approve all three purposes as justification for requiring Iraq to compensate Gulf War victims, the U.N.'s primary goal in the wake of the Gulf War was to provide a type of retributive punishment--that is, to compensate victims for their losses. It was this motivation which led the United Nations to establish the United Nations Compensation Commission (UNCC).(12) Formed in 1991 to address claims against Iraq arising out of the Gulf War, the UNCC has received 2.6 million claims, with an asserted value of over $244 billion.(13) It has processed 2.4 million of these claims.(14) Despite this impressive accomplishment, the UNCC has much left to do, and its efforts have been burdened by, Iraq's post-war refusal to meet its treaty obligations. The UNCC now faces waning political support from U.N. members, who themselves face increasing pressure from the international business community to reintegrate Iraq into the world economy. These problems raise significant questions: Considering that the UNCC is expensive, time-consuming, and divisive, is it worth the cost if it cannot substantially compensate victims? If partial compensation is the ultimate result, what fraction of damages will suffice to satisfy victims' needs and the world's sense of justice? If the UNCC is to continue, what should it expect from the political and commercial entities that are increasingly sympathetic to Iraq? This Note addresses these issues. Part II of this Note discusses the response of the United Nations to Iraq's invasion of Kuwait, including the formation of the UNCC. Part III describes the structure and composition of the UNCC and the procedures it developed to address claims. Part IV evaluates the UNCC's progress since 1991, with particular attention to the political and commercial forces that now threaten the UNCC's mission. This Note concludes that, despite international political sentiments ranging from apathy to hostility, the United Nations must reaffirm its commitment to international accountability generally, and to the victims of the Gulf War in particular, by continuing to support the UNCC. II. THE U.N. RESPONSE TO IRAQ's INVASION OF KUWAIT The United Nations responded in two phases to Iraq's invasion of Kuwait. In its pre-Gulf War phase, the United Nations issued a series of increasingly condemnatory resolutions against Iraq, ultimately authorizing military action and warning Iraq of its liability for invasion-related damages. In the post-Gulf War phase of its response, the United Nations defined the terms of Iraq's surrender and outlined the compensation procedures to be implemented. A. Response During Iraq's Occupation of Kuwait The U.N's initial response to Iraq's invasion was to condemn Iraq's actions, demand its immediate withdrawal, and impose economic sanctions. When these strategies failed, the United Nations authorized military action and announced Iraq's liability for damages arising from the invasion and occupation. 1. Condemnation and Economic Sanctions, August 2 to September 25, 1990 The Iraqi army invaded Kuwait on August 2, 1990. The response of the United Nations was immediate. That very day, the U.N. Security Council adopted Resolution 660, condemning the invasion and demanding Iraq's withdrawal from Kuwait.(15) When Iraq did not immediately withdraw, the Security Council took additional measures. On August 6, the Council adopted Resolution 66...See the full content of this document
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