The Issue of Compensation for Palestinian Refugees
Source: Workshop Papers
By 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
Conclusions
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. |
