Thalif Deen
IPS
August 23, 2004

U.N. Secretary-General Kofi Annan, who has criticised the growing number of civilian killings in ongoing conflicts in Iraq, Afghanistan and the Israeli-occupied West Bank and Gaza, is backing a permanent U.N. body that would provide reparations for victims of wars.

In the wake of the first Gulf War in 1990, he says, the United Nations set up a Compensation Commission that processed more than 2.5 million claims, paying out more than 18 billion dollars to victims of Iraq’s unlawful invasion and occupation of Iraq.

No single form of reparations is likely to be satisfactory to victims,” Annan says in a 23-page report to the U.N. Security Council. “Instead, appropriately conceived combinations of reparation measures will usually be required, as a complement to the proceedings of criminal tribunals and truth commissions.”

Several national and international war crimes tribunals are at work now, including those relating to Rwanda and the former Yugoslavia, and also several truth commissions in post-war societies, notably in South Africa.

In May, the U.S. Department of Defence said it was preparing for a flood of compensation claims arising from charges of abuse and torture by U.S. soldiers at the Abu Ghraib prison outside of Baghdad.

As of June this year, the U.S. military had paid more than 2.5 million dollars in compensation claims to Iraqis under the Foreign Claims Act, mostly for cases involving accidents or negligence by the military, according to an unnamed Pentagon source quoted by the New York Times in May.

In March, the Times published a series of stories about Iraqi civilians victimised by the U.S. military. One man watched his wife burn to death and his three children die following a U.S. missile attack on his home.

Subsequently, he received 5,000 dollars as compensation, along with a letter from a young U.S. military officer, which said, “I’m sorry.”

“Part of me didn’t want to take it,” the Iraqi man told the paper, “It was an insult.”

“I am seeking a way to provide appropriate compensation to those detainees who suffered grievous and brutal abuse and cruelty at the hands of a few members of the U.S. military,” U.S. Defence Secretary Donald Rumsfeld told members of the House of Representatives’ Armed Services Committee in Washington, DC last May.

In a letter to U.S. President George W. Bush, London-based Amnesty International (AI) called for “full reparations” for victims of torture in the Abu Ghraib scandal. The original proposal for a permanent reparations commission was made jointly in 2003 by the judges of the U.N. war crimes tribunals for Rwanda and former Yugoslavia. Created by the Security Council, the two tribunals are sitting in judgement over those accused of war crimes in the two post-conflict nations.

“Whatever mode of transitional justice is adopted and however reparations programmes are conceived to accompany them, both the demands of justice and the dictates of peace require that something be done to compensate victims,” Annan says in his report titled, “The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies.”

The report, which also deals with restoration of property rights, restitution of victims’ legal rights and just compensation, is to be discussed by the 15-member Security Council at an undetermined date.

In a report released in May, AI said that more than one year after the occupation of Iraq, “civilians are still being killed unlawfully every day by coalition forces, armed groups and individuals.”

The number of civilian deaths in occupied Iraq alone runs into the thousands, although there have been no precise body counts.

Last month the International Court of Justice in the Hague, which was called upon by the U.N. General Assembly to provide an “advisory opinion” on Israel’s construction of a wall in occupied West Bank, not only declared it illegal but also asked Israel to make reparations for damages caused by the construction of the controversial barrier.

“There is definitely a need for a permanent commission to consider reparations for civilians hurt by actions that are carried out in violation of international law,” says Nadia Hijab, executive director of the Washington-based Palestine Centre.

She said such a commission would send an important signal that could deter potential violators in the way that the establishment of the International Criminal Court (ICC) is making states think twice (about war crimes and genocide).

“Such a commission should be similar to the U.N. Compensation Commission, which did not restrict itself to civilians killed in combat, but covered a wide range of losses stemming from the illegal Iraq invasion of Kuwait in 1990,” Hijab told IPS.

“Clearly, reparations should be paid to civilians for violations of international humanitarian law by the violators,” says Francis Boyle, professor of international law at the University of Illinois College of Law.

“But I doubt very seriously the U.S. government would approve it or fund it, for obvious reasons,” said Boyle, author of Destroying World Order and Palestine, Palestinians and International Law.

He said the Bush administration “has done everything humanly possible to sabotage the International Criminal Court because it does not want to be held accountable before this institution for violations of international humanitarian law – even if it does not have to pay the reparations, which it would be obligated to do in any event.”

“The same is true for Israel,” Boyle told IPS, “America’s cat’s paw in the Middle East. And it is almost impossible to hold these two rogue states accountable in their own respective legal systems. They enjoy their impunity, and will fight to keep it,” Boyle said.

Hijab argued that it is important not to put the burden on a country’s population in a case where it might not have voted for or supported violations of international law.

“The burden of compensation for losses and of sanctions was borne by the population of Iraq, which was penalised twice over, once for its decades of suffering under dictatorship, and once for living with the consequences of the decisions taken by a dictator for whom they did not vote,” she said.

Hijab also said that compensation is a key issue in the case of the Israeli-Palestinian conflict.

“The United Nations has records and estimates relating to the losses of Palestinian refugees due to the creation of the State of Israel in 1948 à Resolution 194 of the U.N. General Assembly of 1948 provides for the return or compensation of Palestinian refugees,” she added.

Compensation for losses suffered by Palestinians under Israel’s 37-year occupation also need to be calculated and costed, according to Hijab.

“Some preliminary estimates are available on different kinds of losses, but a comprehensive study is needed. It will be hard to set a price that compensates for so much suffering due to illegal occupation, non-fulfilment of U.N. resolutions, and violation of international law.”