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Al-Ahram Weekly On-line 19 - 25 October 2000 Issue No. 504 
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Published in Cairo by AL-AHRAM established in 1875 |
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Al-Ahram Weekly On-line 19 - 25 October 2000 Issue No. 504
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| Published in Cairo by AL-AHRAM established in 1875 |
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Egypt Elections Palestine International Economy Opinion Culture Focus Features Travel Sports Profile People Time Out Chronicles Cartoons Letters Iraq under siege
By Alain GreshClaims for compensation from Iraq, presented through the United Nations Compensation Commission (UNCC), are divided into various categories. Category C claims regroup 1,659,840 individual claims -- destruction of goods, mental anguish, the need to go into hiding and so on -- for compensation of less than $100,000. The last claims in this category were settled in September. The fact that only 632,004 claims were honoured should not be seen as a slur on the quality of the work accomplished. This category included a joint claim filed by 1,240,000 Egyptian workers. Once it had been set aside, there remained 420,000 category C claims, of which 408,187 were honoured -- or, in other words, 97 per cent of the total. But the claimants did not all receive the same treatment. Almost 100 per cent of the 160,000 Kuwaiti claims were successful, and some of them were even awarded 110 per cent of what they demanded. On the other hand, the 40,000 Jordanians (mainly Palestinians) only received 40 per cent of their claims.
From the outset the C procedure was "guided." As deputy executive secretary, Michael F Raboin plays a key role at the UNCC; he is in charge of supervising all requests for compensation. A US citizen, Raboin set up the secretariat in 1991. He recruited Norbert Wuhler, with whom he had worked on the Iran-United States Claims Tribunal. This body was founded at the beginning of the 1980s and is still at work in The Hague settling disputes between the two countries. In the words of the two men, "We are impartial. The commissions made allowance for Iraq's case. Particularly as we had to deal with several hundred thousand claims in a very short time. Many claimants have actually complained that we were too favourable to Iraq."
"Impartial" is perhaps not quite the right word. In April 1995, Erik Wilbers, head of the category C claims unit, assembled his team and spoke to them. "All this abstract work that we do in this air-conditioned building in Switzerland makes it very easy for us to forget what we are here to achieve: to help the claimants." In reference to the torture Kuwaitis had undergone, Wilbers added, "I think it is useful for us to remember the luxurious position we are in. All of us are guilty of this to a smaller or greater extent; the important thing is for you to realise when you may be going a little too far." This sounds very much like a barely concealed encouragement to cut corners.
A former Egyptian civil servant who worked in the unit remembers that in the course of his work he was regularly asked to "make the criteria as generous as possible," so as to make as many awards as possible. Another civil servant, from Europe, was struck by recurrent references to "doctoring the samples." The statistical models used to compensate victims rapidly were, quite simply, modified.
photo: Khaled El-Fiqi
The restricted number of first-hand documents (receipts, invoices, etc.) provided by claimants made these operations easier. The Kuwaitis, for instance, filled in 160,000 individual claims, some on behalf of new-born babies. In many cases the same telephone numbers appeared on separate claims, concerning the same losses. Various documents reported these "duplicates." The Chinese representative even protested several times, and an audit criticised these shortcomings, but nothing changed.
Another European civil servant mentioned lobbying by the Kuwaiti delegation to ensure that the process favoured its country. "The victims played a rather active part in this. It would be exaggerating to say that they were in our offices every day. More like every two days." Many Kuwaiti businessmen were awarded compensation for companies belonging to people from other countries, often Palestinians, as Kuwaiti law requires foreign nationals to use a local "sponsor" to start a company.
Even more scandalous, in February 1998 the US government officially asked the governing council to review the criteria applied to payments to Kuwaitis. According to an undisclosed document, "the US recalled that it supported the use of the statistical model, considering it to be a fair way to process a large number of claims on an expedited basis. However, the US reported that it was now concerned that there may be an error in the model." The secretariat complied with this "advice." US behaviour in this respect is reminiscent of its manipulation of the UN special commission for disarming Iraq (UNSCOM), which was packed with CIA agents.
The largest compensation claims are still being examined. On 16 June claims worth $267 billion were outstanding. Of course, many of them are unfounded and have been or will be dismissed. Some countries, for instance, filed claims for the cost of mobilising their troops. But it is clear that US allies -- in particular Kuwait, Saudi Arabia and Israel -- have qualified for special treatment under the pretext that they were hit by Scud missiles. Several Israeli florists and greengrocers, and numerous cinemas and hotels, have received millions of dollars to compensate revenue lost during the crisis. It is as if the UK had demanded compensation from Germany because cinema attendance dropped in 1939-'45.
The various Kuwaiti ministries filed claims (category F-3) amounting to $2.2 billion and were awarded $1.53 billion. The commission in charge of the case sent six missions to Kuwait and the US to check claims, but Iraq was not given a chance to send a representative or state its case to the commission. The members of the commission did not make the trip either, except in one case, and simply sent the "experts" provided by the secretariat, which played an increasingly important role. The issues raised by the gains or savings made by Kuwait because of the war -- increased oil prices, inactivity of its institutions for several months, renewal of capital assets -- were either ignored or scarcely discussed.
The UNCC has received claims for compensation worth $320 billion, including $180 billion for Kuwait alone. This is equivalent to nine times the country's gross domestic product in 1989, but this has not prompted any comments. Even if we assume (as it is rumoured in the commission corridors) that only a third of this amount will actually be awarded in compensation, it would still add up to $100 billion. To which must be added the interest, for periods ranging from 10-15 years, bringing the total to about $300 billion (4). At the current high price of oil, this would absorb all Iraqi oil exports for 15 to 20 years. If the country continues to spend one third of its revenue on paying compensation, it will have a clean slate by 2050-60 (5) -- setting aside debts contracted before 2 August 1990. By then, what will be left of Iraq's schools, hospitals and infrastructure (6)?
Is it legal to make a country pay without making allowance for its resources or setting an upper limit? Article 14 of the 1951 peace treaty between the US and Japan stated: "It is recognised that Japan should pay reparations to the Allied Powers for the damage and suffering caused by it during the war. Nevertheless, it is also recognised that the resources of Japan are not presently sufficient if it is to maintain a viable economy, to make complete reparation for all such damage and suffering and at the same time meet its other obligations" (7). It should be borne in mind that the then head of state of Japan was emperor Hirohito, a war criminal who could -- much as Saddam Hussein -- have been tried by the International Criminal Tribunal, had it existed. What is more, Resolution 687 recognised that the "requirements of the people of Iraq, Iraq's payment capacity" should be taken into account in the payment of compensation. But does the UN abide by its own decisions?
For many years the International Law Commission, set up by the UN, has been studying the rights and duties of states. It is preparing a convention that has already won a broad consensus. Article 42 of the convention will stipulate that in no case may reparations deprive a people of its own means of subsistence.
Some legal specialists, such as Bernhard Graefrath from Germany, have gone further, questioning the right of the Security Council to decide the amount of compensation due in a dispute between two parties (7). On several occasions -- the Israeli attack on Beirut airport in 1968, Portuguese aggression against Guinea in 1970, and attacks on Angola by South Africa in 1976 -- the Security Council decided that compensation was due to the victims, but it never set the amount. That is outside its prerogatives. In the case of Angola, for instance, the UK representative on the Security Council pointed out that "the Security Council is not a court of law, nor is it the appropriate forum to determine questions of restitution and compensation for damages."
When queried on this, Raboin, along with other members of the secretariat, explained, "We thought that the UN had drawn a line" after the invasion of Kuwait, establishing the rule of law in international affairs. The validity of this precedent, and the corresponding "new world order" became apparent all too soon in Bosnia, South Lebanon and Palestine. Will Israel, for instance, be required to compensate Lebanon for occupying the southern part of the country for 25 years? According to a European diplomat, the UNCC's partial dealings must be seen in the international context of 1991. "Nowadays an institution of this type would never be set up. The US would never get its way. Everyone would be against it."
On 28 September, the Security Council decided to change some of the more outrageous aspects of the way the UNCC is run -- but not its basis. For phase nine of the so-called oil-for-food programme (December 2000 to June 2001), the percentage of Iraqi exports for compensation will be 25 per cent (down from 30 per cent) and UNCC procedures will change to give Iraq a bigger say in discussions. But these changes are hardly enough. Instead of paying compensation until 2060, Iraq will be paying until 2070.
Livy, in his history of ancient Rome, tells a story that is probably mythical, since it dates back to 385 BC. Rome had lost a war with the Gauls and decided to negotiate. The senate dispatched military tribunes to negotiate with the Gauls, who were besieging the city. "An agreement was arrived at by which 1,000 pounds of gold was fixed as the ransom of a people destined ere long to rule the world. This humiliation was great enough as it was, but it was aggravated by the despicable meanness of the Gauls, who produced unjust weights, and when the tribune protested, the insolent Gaul threw his sword into the scale, with an exclamation intolerable to Roman ears, 'Woe to the vanquished!'"
The writer is the editor-in-chief of Le Monde Diplomatique. This article, reprinted with the permission of the author, appears in this month's issue of Le Monde Diplomatique. The first instalment appeared in the last issue of Al-Ahram Weekly.
Translated by Harry Forster
(4) On 18 December 1992 the governing council decided that interest would be due.
(5) Compensation claims filed by the UNCC do not curtail all legal procedures against Iraq, for the competence of the commission is not exclusive. Plaintiffs may also take Iraq to court to settle other claims.
(6) See Alain Gresh, "Iraq's Silent Agony", Le Monde Diplomatique, English edition, July 1999.
(7) Quoted by Bernhard Graefrath, "Iraqi Reparations and the Security Council," Heidelberg Journal of International Law, Heidelberg, 1995, 55/1.
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