Between Iraq and a hard place: the U.N. Compensation Commission and the its treatment of Gulf War claims.

• Author: Owens, Lea Carol

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)

1. 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.

2. 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.

   1. 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 661, which embargoed Iraq and Kuwait, froze their assets, and urged states to support the legitimate government of Kuwait.(16)

         Neither the disapprobation of Resolution 660 nor the economic sanctions of Resolution 661 deterred Iraq's aggression. In fact, Iraq declared its "comprehensive and eternal merger" with Kuwait (17) The Security Council's response to Iraq's entrenchment was two fold: First, the Council passed resolutions directed to Iraq that reiterated the Council's condemnation.(18) Second, it called on member states to deploy maritime forces to enforce the Resolution 660 embargo and to document their support of the economic sanctions imposed by Resolution 661.(19) Iraq still showed no sign of capitulation.

         In mid-September, the Council expressed its growing concern over living conditions in Iraq and Kuwait(20) and its outrage over Iraq's treatment of diplomatic personnel in Kuwait.(21) The Council particularly objected to abductions from diplomatic premises in Kuwait and stated that Iraq's escalating violations of international law constituted "a flagrant violation of its international obligations which strike at the root of the conduct of international relations."(22) The Council noted its decision to "take further concrete measures [as soon as possible] to ensure Iraq's compliance with the Council's resolutions" and reminded member states of their obligation to observe strictly the Council's prior resolutions regarding Iraq.(23)

         A week later, the Council took measures to begin relief efforts in Iraq and Kuwait.(24) while noting its determination to "ensure compliance with Security Council resolutions by maximum use of political and diplomatic means."(25) The Council reminded member states of their obligations under Resolution 661(26) and warned Iraq that continued failure to comply with the Council's resolutions "could lead to further serious action by the Council under the Charter of the United Nations. . . ."(27) With those warnings in place, the Council ended its August-September session.(28)

      2. Security Council Resolutions, October 29 to November 29, 1990

         Despite the disapprobation of the international community, as expressed by the Security Council, and despite the economic sanctions imposed by the Council, Iraq continued its subjugation of Kuwait during October 1990. Living conditions deteriorated as the occupying forces took hostages, destroyed demographic records, seized public and private property, and threatened third-state nationals, including diplomatic personnel.(29) The Kuwaitis and third-state nationals lacked food, water, and basic services.(30) Upon reconvening to respond to this situation, the Security Council reminded Iraq of its August and September resolutions and stressed in Resolution 674 "the urgent need for the immediate and unconditional withdrawal of all Iraqi forces from Kuwait, [and] for the restoration of Kuwait's sovereignty, independence and territorial integrity . . . ."(31)

         Resolution 674 focused primarily on Iraq's duties under international law, rather than on other states' obligations to uphold economic sanctions. It listed many actions the Council wanted Iraq to take. In light of Iraq's three-month-long refusal to capitulate, however, this list primarily served to document the Council's warning rather than to outline actions Iraq might actually take. Yet, it preceded a more potent warning that was the most important innovation of Resolution 674. This warning specified that, under international law, Iraq was liable "for any loss, damage or injury arising in regard to Kuwait and third States, and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq . . . ."(32) It further provided that states should collect information regarding their claims and those of their nationals and corporations to obtain restitution or financial compensation from Iraq.(33) The Council concluded it would remain "actively and permanently seized of the matter until Kuwait has regained its independence and peace has been restored. . . ."(34)

         Despite the nine resolutions the Security Council adopted between August 3 and October 29, 1990, Iraq continued to occupy Kuwait. By enacting Resolution 670, the Council had exhausted all peaceful strategies within its power to deter this aggression. Both humanitarian and economic appeals had failed, and Kuwait's situation continued to deteriorate. In late November, the Council adopted its final resolutions directed at a non-interventionist approach to the occupation.

         The first of these, Resolution 677,(35) focused on Iraq's genocidal activities against the Kuwaiti people.(36) It condemned both the genocide and the attendant destruction of civil records(37) and requested that the Secretary-General take custody of a certified copy of Kuwait's population register.(38) The second, Resolution 678,(39) reflected the Security Council's growing impatience with Iraq and provided it with a last warning. In Resolution 678, the Council...