The Palestinian Claims to
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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.