The Palestinian Claims to

							                          The Palestinian Claims to
              The United Nations Compensation Commission:
                       Relevance to the Wall Claims

                                                             Dr.Anis F. Kassim
                                                             13 February 2006

I-   The United Nations Compensation Commission

     On April 3, 1991, the UN Security Council, acting under Chapter VII of
     the Charter, adopted Resolution No. 687 which provides, inter alia,
            that Iraq, … is liable under international law for any
            direct loss, damage, including environmental damage
            and the depletion of natural resources, or injury to
            foreign Governments, nationals and corporations, as a
            result of Iraqi’s unlawful invasion and occupation of
            Kuwait.
     The quoted text sets out the state’s responsibility under international law
     for any wrong doing. The text is of multifaceted significance. It is, first,
     establishes the principle of the “presumption of liability”. It emphatically
     asserts that “Iraq is liable”. Departing from the traditional rules of
     international law whereby only sovereign states could be claimants, the
     Resolution grants individuals and corporate entities, in addition to
     governments, the right to claim directly against the liable state. In this
     respect, it must be pointed out that the individual claimants do not need to
     be nationals of a given state. They could be stateless. The Kuwaiti
     Bidouns (residing in Kuwait but with no nationality) were granted
     compensation from the UNCC. Finally, the Resolution, once again,
     departing from the traditional rules of compensation as based on lump
     sum, sets the grounds for new criteria. Now, the claim must be based on
     direct loss, damages, environmental damages and damages to natural
     resources. This necessarily requires that each claim must be substantiated,
     and damages must be quantified. It also requires that the claim will be
     carefully scrutinized by the UNCC machinery.
     On May 20, 1991, The Security Council, acting under Chapter VII of the
     Charter, adopted Resolution 692 by virtue of which the Fund will be
     established, through which compensations will be paid. The Fund will be
     administered by the Governing Council (the “Council”) which will be
     seated in Geneva. The Governing Council is the supreme authority. It is
     assisted by a group of commissioners and a secretariat.
     The UNCC has developed several forms for different claims. Form “A”
     deals with expenses relating to departure from Iraq or Kuwait. A fixed
     amount of US$ 2,500/- had been set by the Council. Form “B” deals with
    claims submitted by individuals who suffered personal injury or whose
    spouse, child or parent died as a result of Iraq’s invasion and occupation
    of Kuwait. Form “C” deals with claims submitted by individuals for
    damages up to US$ 100,000/-. Under this category of claims, a claimant
    can list 21 different types of losses including mental pain and anguish,
    loss of personal property, business losses, loss of salary …etc. Form “D”
    deals with claims above US$ 100,000/-. Needless to add that a claimant
    can consolidate his various types of claims under one category. For
    example, a claim to departure expenses can be added to “C” category
    claim.
    The UNCC began receiving claims as of January 1, 1992. The Council
    extended the periods during which claims can be filed with the UNCC
    secretariat about ten times. By January 1, 1996 the door was finally
    closed. The period from January 1, 1992 to January 1, 1996 is called the
    regular or original period.
    When the door was closed in 1996, the Palestinian Authority established
    the Palestinian Compensation Commission (“PCC”) in or about 1997. At
    long last, the PCC was successful in addressing the council and explained
    the exceptional circumstances that prevented certain Palestinians from
    filing their claims during the original period.
    The Council accepted the PCC argument and reasons, and consequently,
    opened the door for those Palestinians provided that each claimant must
    establish why he/she was not able to file his/her claim during the regular
    period. The door was opened from January 1, 2002 to September 30,
    2002.
    Aside from the misuse or abuse of this opportunity by some claimants, the
    general review of the Palestinian claims shows that the claimants were
    poorly advised, and sometimes misguided by their respective advisers,
    accountants or claim preparers. The net result of this conduct was that
    most claimants were awarded less compensation, and the rest lost their
    claims.
    That experience must be present when we are talking about claims
    relating to Wall.

II- The Wall
    On July 9, 2004, the International Court of Justice rendered its Advisory
    Opinion on the legal consequences of constructing the Wall in the
    Occupied Palestinian Territory (“OPT”). The Advisory Opinion sets out
    the most authoritative opinion on virtually all legal issues that are facing
    the Palestinian – Israeli negotiators. It establishes the principle that the
    UN is still ceased with the Palestinian Question; that the territories
    occupied in the June War of 1967 are legally “occupied territories” and
    Israel is the occupying power; that East Jerusalem is included in these
    occupied territories; that these territories are subject to both the
international humanitarian law as well as to the international instruments
on human rights; that Israel, being in occupation of these territories, is
subject to the limitations imposed by that body of law on all belligerent
occupant; that Israeli settlements in OPT are illegal and violate Article
49(6) of the Fourth Geneva Convention; that the Wall, in the manner it is
being built and the route it is taking cannot be justified as a necessary tool
of self-defense; that the Wall is illegal and must be dismantled and all the
relevant instructions, decisions, announcements relating thereto must be
abolished; and, most relevant to us, Israel must compensate all natural and
corporate persons for the damages that they have sustained. The Court
said in a very clear ruling that:
       given that the construction of the wall in the Occupied Palestinian
       Territory has, inter alia, entailed the requisition and destruction of
       homes, business and agricultural holdings, the Court finds further
       that Israel has the obligation to make reparation for the damages
       caused to all the natural or legal persons concerned. The Court
       would recall that the essential forms of reparation in customary law
       were laid down by the Permanent Court of International Justice in
       the following terms:
       The essential principle contained in the actual notion of an illegal
       act – a principle which seems to be established by international
       practice and in particular by the decisions of arbitral tribunals – is
       that reparation must, as far as possible, wipe out all the
       consequences of the illegal act and reestablish the situation which
       would, in all probability, have existed if that act had not been
       committed. Restitution in kind, or, if this is not possible, payment
       of a sum corresponding to the value which a restitution in kind
       would bear; the award, if need be, of damages for loss sustained
       which would not be covered by restitution in kind or payment in
       place of it – such are the principles which should serve to
       determine the amount of compensation due for an act contrary to
       international law” (Factory at Chorzow, Merits, Judgment No. 13,
       1928, P.C.I.J.; Series A, No. 17, p. 47).
The Court, relying on customary international law, determined that
Palestinian individuals or corporate entities are entitled to reparation.
Reparation takes the form of restitution or compensation. Restitution is
the restoration of the situation to its status quo ante. Israel, in its statement
before the Security Council, argued that the Wall is a “temporary
measure”; that it is “ready and able, at tremendous cost, to adjust or
dismantle a fence if so required as part of a political settlement” and that
“As soon as the terror ends, the fence will no longer be necessary.” (para.
116). If this is Israel’s official position, then it would be easy for Israel to
restore the situation to what it was.
Even if this is possible, compensation for damages caused to Palestinians
is still due. Palestinian farmers lost use of their lands, water resources and
    produce, their orchids, cattle, and crops; Palestinian employees and
    workers suffered losses of their jobs and income…etc. The systems on
    which the Wall was built has caused tremendous environmental damages.
    Israel has further caused depletion of the water resources in the OPT. If
    we were to follow the rules adopted by the Permanent Court of
    International Justice in the Factory of Chorzow case, Israel must
           wipe out all the consequences of the illegal act and re-establish the
           situation which would have existed if that act had not been
           committed.
III- Sequel to the ICJ Advisory Opinion
    On July 20, 2004, the UN General Assembly, in the first response to the
    ICJ Advisory Opinion adopted Resolution ES-10/15 by a landslide
    majority. (150 to 6 votes). In that Resolution, the Assembly demanded
    that Israel “comply with its legal obligations as mentioned in the advisory
    opinion” and requested “all states members of the UN to comply with
    their legal obligations” as well. The Resolution further requested the
    Secretary General “to establish a register of damage caused to all natural
    or legal persons concerned in connection with paragraphs 152 and 153 of
    the advisory opinion”.
    On January 11, 2005, the Secretary General sent to the President of the
    General Assembly his blue print of the Register. It seems that the structure
    and management of the Register was basically drawn after the UNCC.
    The Secretary General suggested a board of directors manned by
    individuals in their personal capacities, a group of lawyers and technical
    experts and a secretariat. The Register would be a UN off-shoot enjoying
    all the relevant immunities and exemptions. The Register is not a
    compensation agency; it is rather a record keeper of all damages incurred.
    It will remain in existence as long as the Wall exists. No further
    developments on this Register as of today.
    The Palestinian National Authority (the “PNA”) should take the initiative
    to promote the establishment of the UN Register and, at the same time,
    launch its own counter-part register. Learning from the Palestinian claims
    to the UNCC, the national register should be the most reliable source of
    information for damages documentation and quantification. It should be
    manned by Palestinian experts in land survey, land evaluation,
    plantations, orchids, cattle, poultry, water, opportunities, jobs, accidents,
    …etc. They can be assisted by experts from various countries, and, above
    all, can draw on the valuable experience compiled by the UNCC. The
    Palestinian register can advise claimants on how to document their claims
    and how to quantify their respective damages. This process is continuous
    and will remain active as long as the Wall exists.
    The Palestinian register should be the reference to the UN Register. It will
    provide and explain to the legal and technical teams of the UN Register
    the complexities involved in land issues (title to land is not always
    evidenced by a land registry certificate, in villages there are common
    properties …etc); the legal status of some Palestinians whose residence is
    regulated by the capricious whims of their occupiers; the status of the
    Jerusalemites; and such other issues that need or require local expertise.
    The Palestinian register should take the form of an independent entity
    established by law. It should have its own board and director general who
    report directly to the Council of Ministers. The director general must
    entertain high credibility and have vast experience in management. He
    should have wide authorities in running the register and in recruiting the
    best qualified staff from various faculties. The PNA should allocate the
    adequate fund to finance such a complex operation. The director general
    will report directly to the register’s board of directors, which is the
    ultimate authority of the register.
    The Palestinian register will benefit from all the efforts of all NGOs who
    are interested in this endeavor. NGOs activities are invariably important
    and priceless. Their activists can reach to areas where the official officers
    of the register may not reach. Their international contacts and affiliations
    are specifically important in harnessing world support to put the Advisory
    Opinion into effect. They can recruit experts from various jurisdictions to
    help Palestinians quantify the claimed damages. Their efforts to the
    Palestinian register are of paramount importance.

IV- Conclusion
    The Palestinian early efforts to reach the World Court were frustrated by
    power politics. These efforts go as far back as 1947 when the UN General
    Assembly was toying with the idea of partitioning Palestine. Now we are
    there with a very powerful and authoritative advisory opinion. Some
    would say that this is just an “advisory opinion” which is not binding. In
    reply, one could say that, had it been a contentious case between Israel
    and Palestine, would the interpretation of law be any different? The World
    Court does not have two interpretations of law: one for advisory opinions
    the other for contentious cases. It has only one set of tools that it uses in
    all events. It knows only one set of rules that it uses in interpreting
    international law. This Advisory Opinion is therefore the most
    authoritative interpretation of international law relevant to the case before
    it.
    Finally, if law at the domestic as well as the international level is the only
    alternative to violence and disorder, this Opinion is guiding us to apply
    the law in order to bring peace to all the peoples of this tortured area. The
    Palestinian – Israeli conflict has been subject to all kinds of constraints;
    from that of military coercion to more sophisticated methods of
    diplomacy and power politics. All of them failed. One tool has never been
    used, and that is the instrument of law. It is high time to utilize law as set
    out in this decisive and daring opinion. The Court remarked:
   Illegal actions and unilateral decisions have been taken on all sides,
   whereas, in the Court’s view, this tragic situation can be brought to an
   end only through implementation in good faith of all relevant Security
   Council Resolutions, in particular resolutions 242(1967) and
   338(1973)”. (para. 162).

This is the challenge to the world community at large, and to the
contesting parties, in particular.