Compensation as Part of
a Comprehensive Solution to the
Palestinian Refugee Problem
The Issue of Compensation for Palestinian Refugees
Luke T. Lee
Within the brief space set for this paper, only the very basic principles governing the issue of compensation for Palestinian refugees will be examined. For more detailed treatment of this subject, see my article, "The Right to Compensation: Refugees and Countries of Asylum," in 80 Am. J. Int'l L. 532-567 ( 1986), and the International Law Association's Report of the Sixty-Fifth Conference; Cairo (1992), which contains the Declaration on Principles of International law on Compensation to Refugees. During the mid-17th century, Grotius wrote: "Every fault creates the obligation to make good the loss" (De Jure Belli ac Pacis, Bk. II, ch. XVII, pt. I, at 430). Verdross drew the logical inference that, absent such obligation, there would be no duty on the part of States to observe rules of international law (Verfassung der Volkerrechtgemeinschaft 164 (1926)). Such obligation is most commonly fulfilled by adequate compensation (Oliver, "Legal Remedies and Sanctions," in R. Lillich (ed.), International Law of State Responsibilitv for Injuries to Aliens 61, 71 (1983)). Thus, along with the requirements to discontinue a wrongful conduct, to provide restitution and to guarantee non-repetition, payment of compensation for injuries inflicted upon any victims in violation of international law constitutes a basic concept of State responsibility Article 91 of Additional Protocol I of 1977 to the Geneva Convention of 12 August 1949 provides specifically:
A Part to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of the armed forces. Similar provisions are found in Article 3 of the Hague Convention No. IV of 1907. The Draft Articles on State Responsibility, Part I, provisionally adopted by the International Law Commission, reflects the sense of the above by stating in Article l: "Every internationally wrongful act of a State entails the international responsibility of that State" (See 2 Y.B. htld L. Comm'n, pt. 2, 3635, UN Doc. A/CN.4/SER.A/1980, Add. 1).
However, victims of war or violations of international law have traditionally been compensated only through the medium of the State of which they are nationals. This procedural limitation owes its origin to two interrelated theoretical underpinnings: (1) Traditional international law governs relations only among States (see, e.g., Article 34(1) of the Statute of the ICJ: "Only States may be parties in cases before the Court"); and (2) States are injured through injuries to their nationals (see the opinions of the PCIJ in the cases of Mavrommatis, Chorzow and the Serbian Loans, respectively in PCIJ, Series A, No. 2 (1924), No. 17 (1928), and No. 20 (1928).
This emphasis on States as the medium for compensation has led to the following developments:
(1) Aliens are in a better position to receive compensation for injuries done to them than nationals, whose own State is understandably disinclined to make a claim against itself. Hence, the State responsibility doctrine under traditional international law has usually been associated with the protection of aliens. See Louis B. Sohn and Richard Baxter, Draft Convention on the International Responsibility of States for Injuries to Aliens Cambridge, Mass, Harvard Law School, 1961, Harvard Law School, Research in International Law, "Responsibility of States," 23 Am. J. Int'l L. Spec. Supp. 131-239 (1929).
(2) States retain the discretionary power to press or not to press the claims of their nationals. Indeed, the sum claimed may or may not correspond to actual losses. Statement of Umpire Parker, speaking for the Mixed Claims Commission (United States and Germany) in its Administrative Decision V (1924); W.W. Bishop, International Law: Cases and Materials 3rd ed., 1971, p. 749.
(3) As a practical matter, it is usually only the victors in war that are in a position to claim and obtain compensation for injuries done to their nationals from the vanquished This despite the fact that the victors themselves may have also committed atrocities against innocent nationals of the defeated States in violation of the law of war.
The above shortcomings under the traditional State responsibility doctrine relating to compensation have been remedied by the incorporation of human rights into international larva There is general agreement that an "international wrongful act," for which a State is held internationally responsible, includes specifically action in violation of human rights. (See discussions in the International Law Commission on the subject of State Responsibility in its yearbooks.) Since human rights are defined as "rights which attach to all human beings equally, whatever their nationality" (Waldock, "Human Rights in Contemporary International Law and the Significance of the European Convention, " 11 Int'l & Comp. L.9. 3 Supp. 1965)), State responsibility extends to the treatment of nationals as well as aliens. Such extension brings into sharp relief the dichotomy between human rights and governmental rights. While the latter rights may be relinquished by a Government for political reasons, the former rights inhere in individuals whose rights have been violated, regardless of their government's decision to press or not to press their claims. Such dichotomy is brought out nowhere more clearly than in Resolution 687 of the Security Council on 3 April 1991, in which the Council reaffirms that "Iraq is liable under international law for any direct loss, damage...or injury to foreign governments, nationals and corporations, as a result of Iraq's unlawful invasion and occupation of Kuwait." (UN Doc. S/RES/687 (1991), para. 16).
Pursuant to this resolution, the Security Council created a fund to pay compensation for any resultant claims against Iraq and to establish a commission to administer the payment of compensation. (id., para 18). The United Nations Compensation Commission was subsequently established at the Palais des Nations in Geneva. Its Governing Council adopted in August 1991 the "Criteria for Expedited Processing of Urgent Claims," which deal with:
(1) payment of fixed sums for departure, injury or death;
(2) consideration of claims for up to $100,000 of actual losses per person; and
(3) requirements applicable under both categories. (UN Doc. S/AC.26/1991/1, 2 August 1991.
It should be noted that compensation is not limited to property losses. Indeed, the "Criteria for Expedited Processing of Urgent Claims" stipulates that compensation is "available with respect to death or personal injury, or losses of income, support, housing or personal property or medical expenses or costs of departure, as a result of Iraq's unlawful invasion and occupation of Kuwait." Also relevant are "the circumstances in which claims for mental pain and anguish may be admixed." See also Article V of the Principles Concerning Treatment of Refugees, adopted by the Asian-African Legal Consultative Committee, in Report of the Eighth Session Held in Bangkok from 8 to 17 August 1966, at 335; Declaration of Principles of International Law on Compensation to Refugees, Principle 5, Commentary 4(i).
In addition to the Security Council resolution which explicitly confers upon "nationals" as well as their "governments" the right to compensation, a number of recent cases show that, where a State perpetrates gross human rights abuses, even against its own citizens, it incurs the obligation to pay adequate compensation to the victims or their families. Among these cases were those decided by the Human Rights Committee under the Optional Protocol of the International Covenant on Civil and Political Rights (999 UNTS 171) in the forms of "views." Optional Protocol, Article 5(4). For the summaries of these cases, see UN Doc. E./CN.41Sub.2/1991/7, para 18. Mention should also be made of the decisions of the United States and Canada in 1988 to compensate their own citizens of Japanese ancestry for their expulsion from the West Coast during World War II on account of their race.
All of these cases support the conclusion of Theo van Boven that such "gross violations of human rights and fundamental freedoms" as "genocide," "torture or other cruel, inhuman or degrading treatment or punishments," "systematic racial discrimination," and "a consistent pattern of gross violations," entail "the obligation to provide for compensation as a means to repair a wrongful act or a wrongful situation." Such obligation exists under "a well established principle of international law. See "Study concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms (UN Doc. EICN/41 Sub.2/1990/10 by Theo van Boven, Special Rapporter, paras, 33, 38.
The integration of human rights into International Law and State responsibility has removed the procedural limitation that victims of war or violations of international law could seek compensation only through their own governments, as well as extended the right to compensation to both nationals and aliens. So long as the principle of compensation remains valid, it matters little whether compensation is settled through courts, international organizations, "ex-gratia" payments or diplomatic negotiations. In addition to rendering justice to the victims and their families, compensation serves the useful functions of averting future violations of human rights, whether by foreign or the victims' own governments, and healing historical wounds by transforming a hitherto hostile relationship between peoples into one of reconciliation. For example, the German compensation to Jewish refugees from the Third Reich and to the State of Israel has served to transform a relationship marked by hostility between Germans and Jews into one of reconciliation. See R.W. Zweig, "Restitution of Property and Refugee Rehabilitation: Two Case Studies," Journal of Refugee Studies vol. Ï:1 (1993). See also Lee, "The Declaration of Principles of International Law on Compensation to Refugees: Its Significance and Implications," Journal of Refugee Studies, vol. I: 1 (1993), Sec. 5
The foregoing discussion clearly shows that, to the extent that the rights of Palestinian refugees have been violated, they are entitled to adequate compensation. This principle of compensation applies equally to former nationals of Arab States who were expelled on ground of their Jewish ancestry, with the resultant loss of their property. Cannot these two sets of claims for compensation be offset against each other to the extent possible? Cannot a trust fund be established by the United Nations to receive voluntary contributions and minister the payment of compensation? Perhaps this workshop can provide the opportunity to explore a possible solution to the Arab-Israeli grievances through a settlement based on respect for international law and human rights and, in particular, through the mechanism of compensation.
The PRRN/IDRC compensation workshop was funded by IDRC and the Canadian International Development Agency thrrough the Expert and Advisory Services Fund. PRRN is a project of the Interuniversity Consortium for Arab Studies (Montréal).
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