Iraq’s position on Security Council Resolutions

(SCRs) on Compensation

SCRs on Compensation: Historical background

The question of compensation has been established according to the provisions of SCR 674 (1990) which held Iraq, under international law, liable for any loss, damage or injury arising as a result of Iraq’s entry into Kuwait. The resolution also invited States to collect relevant information regarding their claims, and those of their nationals and corporations, for restitution or financial compensation by Iraq in accordance with international law. In paragraph 16 of its resolution 687 (1991), the Security Council reaffirmed that Iraq, without prejudice to the debts and obligations of Iraq arising prior to 2 August 1990, 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. In paragraph 18 of that resolution, the Council decided to create a Fund to pay compensation for claims that fall within paragraph 16 above and to establish a Commission that would administer the Fund. In paragraph 19 of the resolution, the Council directed the Secretary-General to develop and present to the Council for decision, no later than 30 days following the adoption of that resolution, recommendations for the Fund to meet the requirements for the payment of due claims and for a programme to implement the requirements of the resolution.

In its resolution 692 (1991), the Security Council approved the recommendations contained in the report of the Secretary-General on the establishment of a compensation regime for Iraq. In resolution 705 (1991), the Security Council decided that the compensation to be paid by Iraq would not exceed 30 per cent of the annual value of the exports of petroleum and petroleum products from Iraq. Thus, the Security Council has established the compensation regime which is composed, in fact, of the Compensation Commission of the UN Security Council, the members of which are the members of the Security Council themselves. The Commission has to establish a Governing Council, and it shall be assisted by commissioners whom it appoints as well as a Secretariat which is headed by an executive secretary. Iraq bears all the costs and expenses of the Commission through the Compensation Fund. As regards the competence of the Commission, it includes all administrative, financial, political and legal matters related to compensation.

It is noteworthy that Iraq is not represented in the Compensation Commission, its actions or Governing Council. Its role is limited to attending the regular meetings of the Governing Council where it can deliver its statement and present the relevant data without having the right to discuss or express its views. Iraq cannot get any information on the claims because of the secrecy of the Commission’s work. Thus, it only knows the claims through the report of the Executive Secretary or through what the Commission or its Secretariat wishes to inform Iraq. Therefore, the Compensation Commission establishes itself both as judge and party. It accepts claims, check them, determines the sums to be paid from the Compensation Fund and issues the decisions that Iraq should accept.

The Commission entrusts some commissioners to check some claims, claiming that this assignment is based on the commissioners’ personal independence. But, in effect, the commissioners look into claims that have been already checked and assessed by the Secretariat. Their actions are limited to following up the rules of work of the Commission, a matter which ultimately result in making recommendations that are not final and must be presented to the Governing Council which has the right to accept those recommendations or return them to the commissioners to review them. This means that the final decision is in the hand of the Commission which is in fact a political body subject to the whims and policies of states, rather than a judicial body subject to purely legal measures.

Reservations of the Government of Iraq

The establishment of UNCC

The Government of Iraq has repeatedly emphasized its legal position on the establishment of UNCC by the Security Council, stating that the establishment of such a commission is unprecedented in international law which only provides for compensation without entering into its details, such as accounting the sums of compensation and the mechanism of payment. In its resolutions 674 (1991) and 686 (1991), the Security Council emphasized this in principle. These two resolutions stipulated that Iraq should accept state liability in accordance with international law for any direct loss or injury arising from Iraq’s entry into Kuwait. What we want to stress here is that the United Nations has never approved by itself so many compensation for hundreds of thousands of people who claim injury and for a large number of companies, organizations and governments. At the extraordinary session of the UNCC Governing Council held in Geneva on 14 January 1994 (S/1994/10), the UN Secretary-General said “This is, in fact, unprecedented project. As for the first time in history, the international community shall bear by itself the responsibility for securing the processing of claims of compensation for war victims and taking decisions thereof” This means that this approach and the course of work of the United Nations does not conform to the nature and competence of the Security Council under the Charter of the United Nations. The Security Council is a political body which is responsible for the maintenance of international peace and security, rather than a body that looks into detailed matters of legal character relating to the acceptance of claims as well as processing them.

The UN Charter neither entitles the Security Council nor authorizes it to establish organs. This fully contradicts the content of paragraph 4 of the Secretary-General’s report of 2 May 1991 (S/22569) which provided for the establishment of a compensation commission working under the authority of the Security Council as one of its organs, and assuming executive powers in its dealing with compensation issues. It is understood that compensation issues have to be treated in accordance with the provisions of international law as well as international precedents, such as direct negotiation between the parties, which reflects the consensual nature of international law and conforms to the basic principles of the UN Charter, such as equality among sovereign states and non-interference in their internal jurisdiction.

Depriving the Government of Iraq of objection

The Government of Iraq sees that the measures taken by the UNCC so far, have deprived it of any chance to object to claims acceptability both in terms of time-limits and the classification of claims whether because of the exhaustion of local remedies or the non-conclusive judiciary mandate of the UNCC ..etc. It has become clear to all that the Government of Iraq has no right to see the relevant information and documents since the teams of commissioners are processing the claims in top secrecy. In addition, the Government of Iraq has no right to appear before the commissioners in order to present its pleas or to discuss the claims, and it has no right to object to the law applied to certain claims or to challenge the composition of the commissioners and their actions, responsibilities, compensation sums, including the kinds of damages to be compensated, standards of compensation, methods of assessment and the documentary evidence. The Government of Iraq has recorded its protest against all these details in the letter sent by the Iraqi Foreign Minister to the Chairman of the Governing Council (S/25305) of 18 February 1992 as an example of the recurrent violations of its rights.

Lack of acceptance by Iraq

The allegation that the UNCC working mechanism is well-founded by virtue of Iraq’s acceptance of it since Iraq has been considered liable by the Security Council resolution which Iraq accepted, can be challenged by a number of pleas.

First, Iraq had no choice but to accept those conditions, since the Security Council had permitted, by its resolution 678 (1990) Kuwait and its allies to use force in order to destroy Iraq. The point here is to what extent the acceptance given under threats to use force is valid under international law. Article 52 of Vienna Conventions of 1969, on the law of treaties drafted by the UN International Law Commission, reads as follows: “A treaty is deemed null if it is to be concluded under the use or threat to use force, in a manner that contradicts the principles of international law enshrined in the UN Charter”. If some argue that this applies to agreements concluded between states, Article 3b makes clear that it can be applied to other agreements, including, for example, those concluded between a state and an international organization if they reflect international customary law, a matter that relates to the rule contained in Article 52.

Second, Iraq which accepted liability, in principle, under the above-mentioned circumstances, as provided for by the Security Council resolution 686 (1991), did not accept a specific modality to fulfill this liability as imposed by the Security Council through the establishment of a compensation regime within the framework of the UNCC. Resolution 687 (1991) and the subsequent decisions taken by the UNCC Governing Council go beyond the authority of the Security Council under the UN Charter. It is important to notice the change of liability contained in resolution 687 (1991) in comparison with resolution 686 (1991). Iraq has recorded its objection to the conditions of settlement imposed on it and to the UNCC actions. This impedes the application of the doctrines of international law regarding the acceptance or the principle of conclusive evidence. Iraq has already fixed its recurrent objections, in principle, to the unjust actions taken by the UNCC every time it was able and determined to cooperate with the Commission with a view to protecting its interests under the current circumstances imposed on it, but it has never given up its right to objection.

Third, if one says that Iraq’s acceptance constitutes a basis of the UNCC mechanism, this acceptance places restrictions on the actions of the Security Council and the UNCC, making the implementation and interpretation of the terms of this process subject to that acceptance. Resolution 687 (1991) clearly provides for Iraq’s liability in accordance with international law. Hence, if the Security Council presumably acts within its responsibilities under Chapter VII of the UN Charter, this responsibility stipulates that compensation process is to be implemented in accordance with international law, particularly the rules of natural justice and the observance by the Commission of transparency in its work.

Fourth, the need to provide a proper legal defence of Iraq as regards large claims in general, as well as the need to revise the provisional rules of procedure in order to ensure equality among the parties, provide a proper defence, ensure the common criteria of international arbitration and of settlement of disputes, at least in large claims. It is high time that the Governing Council amended these rules in accordance with Article 43 which permits it to adopt other procedures or revise the rules, if necessary.

Fifth, insufficient time-limit given to the Government of Iraq to respond to the claims. Through its dealing with the claims filed by corporations and governments, the government of Iraq has noticed that the time-limits given to it for preparing its responses to the claims are incompatible with the special nature of those claims, in terms of their magnitude and complexity.

 Besides, some claims are bound by the text of the contract concluded with Iraqi authorities. This requires that Iraq see all the complicated documents and papers, a matter that dictates that Iraq be given enough time to study the claims and prepare comprehensive pleas with a view to ascertaining their reality. However, the time-limits given to Iraq are not enough to ascertain these claims and prepare a comprehensive response, taking into consideration the current circumstances of Iraq, including transport and communication difficulties resulting from the no-flight imposed on Iraq. Despite the fact that this legitimate and just demand has been repeatedly put before the panels of commissioners and the UNCC Secretariat, the Government of Iraq has received no response. While claimants are allowed to hire the most famous international law offices to prepare their claims, Iraq cannot do that to prepare its responses due to the lack of necessary funds as a result of the economic sanctions imposed on it as well as the freezing of its funds and assets abroad. In this regard, we have repeatedly proposed that the requirements of the defence of Iraq’s legal rights be financed from its money deposited in the UNCC Fund. But, this demand has been given deaf ears and received no reply in spite of its legality and fairness.

Sixth, the plan of the UNCC Secretariat for processing all the claims for the years 1998-2003. The Secretariat has presented this plan of action to the UNCC Governing Council under the pretext that it is just an organizational and administrative plan aimed at finalizing the approval of claims in five years. However, it has become clear that the implications of the plan are incompatible with international law, the basis on which the liability for compensation is established as provided for in resolution 687 (1991) of the Security Council and accepted by Iraq. The plan aims to establish new procedures for the relations between the Secretariat and the panels of commissioners on one side, and between claimants and legal experts (whom the Secretariat intends to appoint) on the other. More importantly, it relinquishes the role of the Government of Iraq, if any, to repel the allegations involved in the claims, to take part in the hearings, to express its legal and objective views and to response to the exaggerated claims.