Between Iraq and a hard place: the U.N. Compensation Commission and the its treatment of Gulf War claims.

A mind that is diseased and feverish, being at the same time corrupt and an

agent of corruption, must be held in check by remedies as severe as the vices

from which it suffers.

Tacitus, Annals. III, liv(1)

I. INTRODUCTION

Though the techniques of warfare have changed through the ages, the results of war have not: every campaign leaves victims in its wake. Although in practice many of these victims are never compensated, it is well settled that proponents of unjust wars owe their victims restitution.(2) When these proponents lose, they can be made to pay.

For two hundred years, international claims tribunals have enforced such obligations.(3) The philosophical authority for their existence lies in the work of Hugo Grotius.(4) In De Jure ac Pacis, Grotius writes that "restitution is due, from the authors of the war, for all evils inflicted: and for anything unusual which they have done, or not prevented when they could."(5)

Restitution may be exacted for any of three purposes: correction, example, or retribution.(6) "Correction" is punishment applied "for the good of the wrong-doer;"(7) it has as its object "making better the man who has sinned."(8) "Example" is punishment applied to deter others from similar conduct, or "so that the punishment of one may cause many to fear;"(9) it is inflicted for the good of the whole, "to prevent others from being induced by a feeling of security to annoy any persons whatsoever."(10) "Retribution" is punishment intended to satisfy the person wronged.(11) Although many U.N. member states would likely approve all three purposes as justification for requiring Iraq to compensate Gulf War victims, the U.N.'s primary goal in the wake of the Gulf War was to provide a type of retributive punishment--that is, to compensate victims for their losses. It was this motivation which led the United Nations to establish the United Nations Compensation Commission (UNCC).(12)

Formed in 1991 to address claims against Iraq arising out of the Gulf War, the UNCC has received 2.6 million claims, with an asserted value of over $244 billion.(13) It has processed 2.4 million of these claims.(14) Despite this impressive accomplishment, the UNCC has much left to do, and its efforts have been burdened by, Iraq's post-war refusal to meet its treaty obligations. The UNCC now faces waning political support from U.N. members, who themselves face increasing pressure from the international business community to reintegrate Iraq into the world economy.

These problems raise significant questions: Considering that the UNCC is expensive, time-consuming, and divisive, is it worth the cost if it cannot substantially compensate victims? If partial compensation is the ultimate result, what fraction of damages will suffice to satisfy victims' needs and the world's sense of justice? If the UNCC is to continue, what should it expect from the political and commercial entities that are increasingly sympathetic to Iraq? This Note addresses these issues.

Part II of this Note discusses the response of the United Nations to Iraq's invasion of Kuwait, including the formation of the UNCC. Part III describes the structure and composition of the UNCC and the procedures it developed to address claims. Part IV evaluates the UNCC's progress since 1991, with particular attention to the political and commercial forces that now threaten the UNCC's mission. This Note concludes that, despite international political sentiments ranging from apathy to hostility, the United Nations must reaffirm its commitment to international accountability generally, and to the victims of the Gulf War in particular, by continuing to support the UNCC.

II. THE U.N. RESPONSE TO IRAQ's INVASION OF KUWAIT

The United Nations responded in two phases to Iraq's invasion of Kuwait. In its pre-Gulf War phase, the United Nations issued a series of increasingly condemnatory resolutions against Iraq, ultimately authorizing military action and warning Iraq of its liability for invasion-related damages. In the post-Gulf War phase of its response, the United Nations defined the terms of Iraq's surrender and outlined the compensation procedures to be implemented.

A. Response During Iraq's Occupation of Kuwait

The U.N's initial response to Iraq's invasion was to condemn Iraq's actions, demand its immediate withdrawal, and impose economic sanctions. When these strategies failed, the United Nations authorized military action and announced Iraq's liability for damages arising from the invasion and occupation.

1. Condemnation and Economic Sanctions, August 2 to September 25, 1990

The Iraqi army invaded Kuwait on August 2, 1990. The response of the United Nations was immediate. That very day, the U.N. Security Council adopted Resolution 660, condemning the invasion and demanding Iraq's withdrawal from Kuwait.(15) When Iraq did not immediately withdraw, the Security Council took additional measures. On August 6, the Council adopted Resolution 661, which embargoed Iraq and Kuwait, froze their assets, and urged states to support the legitimate government of Kuwait.(16)

Neither the disapprobation of Resolution 660 nor the economic sanctions of Resolution 661 deterred Iraq's aggression. In fact, Iraq declared its "comprehensive and eternal merger" with Kuwait (17) The Security Council's response to Iraq's entrenchment was two fold: First, the Council passed resolutions directed to Iraq that reiterated the Council's condemnation.(18) Second, it called on member states to deploy maritime forces to enforce the Resolution 660 embargo and to document their support of the economic sanctions imposed by Resolution 661.(19) Iraq still showed no sign of capitulation.

In mid-September, the Council expressed its growing concern over living conditions in Iraq and Kuwait(20) and its outrage over Iraq's treatment of diplomatic personnel in Kuwait.(21) The Council particularly objected to abductions from diplomatic premises in Kuwait and stated that Iraq's escalating violations of international law constituted "a flagrant violation of its international obligations which strike at the root of the conduct of international relations."(22) The Council noted its decision to "take further concrete measures [as soon as possible] to ensure Iraq's compliance with the Council's resolutions" and reminded member states of their obligation to observe strictly the Council's prior resolutions regarding Iraq.(23)

A week later, the Council took measures to begin relief efforts in Iraq and Kuwait.(24) while noting its determination to "ensure compliance with Security Council resolutions by maximum use of political and diplomatic means."(25) The Council reminded member states of their obligations under Resolution 661(26) and warned Iraq that continued failure to comply with the Council's resolutions "could lead to further serious action by the Council under the Charter of the United Nations. . . ."(27) With those warnings in place, the Council ended its August-September session.(28)

2. Security Council Resolutions, October 29 to November 29, 1990

Despite the disapprobation of the international community, as expressed by the Security Council, and despite the economic sanctions imposed by the Council, Iraq continued its subjugation of Kuwait during October 1990. Living conditions deteriorated as the occupying forces took hostages, destroyed demographic records, seized public and private property, and threatened third-state nationals, including diplomatic personnel.(29) The Kuwaitis and third-state nationals lacked food, water, and basic services.(30) Upon reconvening to respond to this situation, the Security Council reminded Iraq of its August and September resolutions and stressed in Resolution 674 "the urgent need for the immediate and unconditional withdrawal of all Iraqi forces from Kuwait, [and] for the restoration of Kuwait's sovereignty, independence and territorial integrity . . . ."(31)

Resolution 674 focused primarily on Iraq's duties under international law, rather than on other states' obligations to uphold economic sanctions. It listed many actions the Council wanted Iraq to take. In light of Iraq's three-month-long refusal to capitulate, however, this list primarily served to document the Council's warning rather than to outline actions Iraq might actually take. Yet, it preceded a more potent warning that was the most important innovation of Resolution 674. This warning specified that, under international law, Iraq was liable "for any loss, damage or injury arising in regard to Kuwait and third States, and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq . . . ."(32) It further provided that states should collect information regarding their claims and those of their nationals and corporations to obtain restitution or financial compensation from Iraq.(33) The Council concluded it would remain "actively and permanently seized of the matter until Kuwait has regained its independence and peace has been restored. . . ."(34)

Despite the nine resolutions the Security Council adopted between August 3 and October 29, 1990, Iraq continued to occupy Kuwait. By enacting Resolution 670, the Council had exhausted all peaceful strategies within its power to deter this aggression. Both humanitarian and economic appeals had failed, and Kuwait's situation continued to deteriorate. In late November, the Council adopted its final resolutions directed at a non-interventionist approach to the occupation.

The first of these, Resolution 677,(35) focused on Iraq's genocidal activities against the Kuwaiti people.(36) It condemned both the genocide and the attendant destruction of civil records(37) and requested that the Secretary-General take custody of a certified copy of Kuwait's population register.(38) The second, Resolution 678,(39) reflected the Security Council's growing impatience with Iraq and provided it with a last warning. In Resolution 678, the Council demanded "that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions" . . . and provided Iraq "one final opportunity, as a pause of goodwill [sic], to do so . . . ."(40) Furthermore, it authorized member states cooperating with Kuwait "to use all necessary means to uphold and implement . . . [these] resolutions and to restore international peace and security in the area . . . "(41)

The Iraq-related Security Council resolutions of fall 1990 are remembered popularly as the resolutions authorizing international military action against Iraq. The Persian Gulf War that followed these resolutions was the brief and decisive result of Resolution 678. Among international arbitrators, however, these resolutions are best remembered for providing the basis for Iraq's liability to those victimized by the invasion and occupation.(42) The claims process that began in 1991 and continues today is the legacy of Resolution 674.

B. Post-Cease-Fire Response

In this second phase of its response to Iraq's invasion, the United Nations set forth the terms required for peace and outlined the procedures through which it planned to compensate Iraq's victims.

1. Defining the Terms of Peace, March 2 to April 3, 1991

On January 16, 1991, a thirty-nation coalition launched its military initiative to liberate Kuwaiti.(43) By February 27, President Bush declared the coalition had achieved this goal,(44) and the Persian Gulf War was over.(45)

On March 2, 1991, the U.N. Security Council formally acknowledged the end of the Persian Gulf War by adopting Resolution 686.(46) Resolution 686 reaffirmed the twelve 1990 resolutions supporting Kuwaiti sovereignty and condemning Iraq's invasion and occupation of Kuwait. Thus, in Resolution 686, the Security Council demanded that Iraq rescind its actions purporting to annex Kuwait; release the Kuwaiti and third-state nationals it had detained; return all Kuwaiti property; and, most significantly with regard to the claims tribunal, "[a]ccept in principle its liability under international law for any loss, damage, or injury arising in regard to Kuwait and third States, and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq."(47) In addition to these recapitulations, the Council demanded that Iraq cease all hostile or provocative actions against member states; arrange a military cease-fire post haste; release all prisoners of war and return the remains of deceased military personnel; and assist in identifying Iraqi explosive, chemical, and biological weapons remaining in Kuwait, its adjacent waters, and occupied areas of Iraq.(48)

Initially, Iraq seemed prepared to comply with these terms and conditions. In a letter of March 3, 1991, Iraqi Deputy Prime Minister Tariq Aziz informed the President of the Security Council that Iraq agreed to fulfill its obligations under Resolution 686.(49)

On March 5, the Iraq Revolution Command Council formally reversed its position that Iraq had effectively annexed Kuwait.(50) Two weeks later, the Iraqi permanent representative to the United Nations informed the Secretary-General that Iraq was prepared to return all Kuwaiti property it had seized and was awaiting instructions as to how this should be accomplished.(51)

Notwithstanding these promising indications, it was soon apparent that Iraq's seeming capitulation was mere pretense. Despite Iraq's promises regarding the return of prisoners, bodies, and property, Iraq neither accounted for missing persons nor returned stolen property.(52) Furthermore, although Iraqi troops were no longer attacking Kuwait, they were now directing their aggressions against domestic insurgents. Iraqi forces reportedly prevented food and medical supplies from reaching Kurdish and Shiite populations, bombed oilfields in rebel-held regions, and attacked civilian protesters.(53) Although these acts were not specifically prohibited by the Security Council's resolutions regarding Iraq's invasion of Kuwait, they were not consistent with the good faith adoption of the cease-fire agreement, and they posed disturbing questions about Iraq's intentions. Additionally, Iraq's use of chemical weapons against its own civilians violated international agreements to which Iraq had been a party.(54)

Disturbing as they were, these concerns were only part of the impetus behind Security Council Resolution 687.(55) The U.N.'s concern for the Iraqi people provided the rest. The U. N. Secretary-General had sent a special envoy to assess conditions in Iraq immediately after the Security Council passed Resolution 686.(56) The report based on that week-long visit stated that the allied forces had "battered Iraq back into `a pre-industrial age'"(57) and that allied bombing had "reduced Iraq to `near apocalyptic conditions.'"(58) Leader of the U.N. team Secretary General Mart-ti Ahtisaari reported, "It is unmistakable that the Iraqi people may soon face a further imminent catastrophe, which could include epidemic and famine, if massive life-supporting needs are not rapidly met."(59)

Addressing both Iraq's recalcitrance toward its Resolution 686 commitments and its failure to address its population's humanitarian needs, the Security Council passed Resolution 687.(60)

Regarding the Iraqis' humanitarian ideals, the Council acknowledged the gravity of the special envoy's reports on Iraq and noted its desire to "meet urgently the humanitarian needs in Kuwait and Iraq."(61) To that end, the Council lifted the sanctions against the sale or supply to Iraq of foodstuffs and simplified the procedure through which Iraq could obtain materials and supplies for essential civilian needs.(62) The Council also provided for allowing Iraq to resume exporting commodities and products under Council supervision.(63)

Regarding Iraq's commitments under Resolution 686, the Council made explicit its concerns about Iraq's unprovoked missile attacks,(64) its nuclear weapons program,(65) and its other "manifestations of international terrorism."(66) Accordingly, the Council reaffirmed the importance of the preceding thirteen resolutions concerning Iraq and Kuwait,(67) demanded that Iraq respect its previous agreements concerning Kuwait's boundaries,(68) approved the deployment of a U.N. observer unit to the Iraq-Kuwait border,(69) and demanded that Iraq surrender its chemical, biological, and nuclear weapons, as well as its long-range ballistic missiles.(70)

Further, the Council reaffirmed that Iraq "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, as a result of [its] unlawful invasion and occupation of Kuwait," and created a fund to pay compensation for the resultant claims, to be administered by a U.N. commission established for that purpose.(71)

2. Instituting Compensation Procedures, May 20 to August 15, 1991

In May 1991, the U.N. Security Council began to shape the formal mechanisms through which compensation claims would be addressed.(72) In Resolution 692,(73) the Council recalled Resolutions 674,(74) 686,(75) and 687,(76) and again restated its position that Iraq would be held liable for losses, damage, and injuries arising out of its invasion and occupation of Kuwait.(77) The Council reaffirmed that the Secretary-General would undertake steps to formulate a recommendation to the Council regarding the level of Iraq's contribution to the fund and directed the Governing Council to proceed to implement Resolution 687.(78) Specifically, the Security Council provided that the proceeds from all Iraqi petroleum exports after April 3, 1991, as well as the proceeds from certain prior exports, would be subject to attachment with regard to the compensation fund.(79) Finally, the Security Council decided that, if the Governing Council notified them that Iraq had failed to carry out its obligations, the Security Council would reimpose the ban on Iraq's oil exportation and any related transactions.(80)

In the weeks following the adoption of Resolution 692, a variety of proposals were made concerning the percentage of Iraq's oil revenue to be contributed to the compensation fund. The United States initially demanded a fifty percent contribution, but U.N. Secretary-General Perez de Cuellar advocated thirty percent.(81) Some members of the UNCC proposed beginning with a figure below thirty percent but raising the percentage as conditions improved in Iraq. The United States countered that proposal by suggesting that a thirty percent contribution would be an acceptable starting figure, but that it should be increased as Iraq's economic status improved.(82) Ultimately, the United States joined its allies in supporting a proposal precluding Iraq from selling oil until its weapons of mass destruction were destroyed and requiring a thirty percent contribution of the proceeds.(83)

These proposals were formalized in Resolution 705, which the Security Council adopted unanimously in August 1991.(84) Resolution 705 adopted the Secretary-General's proposed figure of a thirty percent maximum for the annual value of petroleum and petroleum product exports from Iraq and provided that this percentage would be reviewed periodically in light of relevant developments.(85)

III. THE COMPENSATION SYSTEM IN THEORY

In his May 2, 1991 report to the Security Council, the Secretary-General outlined a proposal for implementing paragraph 18 of Resolution 687,(86) i.e., for compensating victims of the Gulf War. In that report, the Secretary-General detailed the institutional framework of the UNCC, which would consist of a Governing Council, a secretariat, and commissioners.(87) He also outlined the claims procedure and determined the method for ensuring Iraq's contributions to a compensation fund would be administered by the UNCC.(88) These specifics are pursuant to the overarching goal of the UNCC: it "is not a court or an arbitral tribunal before which the parties appear; it is a political organ that performs an essentially fact-finding function of examining claims, verifying their validity, evaluating losses, assessing payments and resolving disputed claims."(89)

In August 1991, the Governing Council adopted Annex 11 to the Secretary-General's report, which categorized claims and set the criteria for processing them.(90)

These documents formed the basis for the Security Council's adoption of Resolution 705. They continue to define the claims process, in conjunction with subsequent decisions issued by the Governing Council.

A. Structure and Composition of the UNCC

The Secretary-General's May 2 report succinctly sets forth the UNCC's institutional framework. It proposes, as the UNCC's principal organ, a fifteen-member Governing Council comprising the representatives of the current Security Council.(91) The Governing Council is the policy-making arm of the UNCC, charged with establishing guidelines for the claims procedure and making final determinations with regard to commissioners' findings.(92)

The Governing Council is assisted by commissioners who are experts in fields such as finance, law, accountancy, insurance, and environmental damage assessment.(93) The commissioners are nominated by the Secretary-General and appointed by the Governing Council for specific tasks and terms.(94) The particular duties of the commissioners are to implement the guidelines of the claims process, to resolve disputed claims, and to make recommendations to the Governing Council, which will make final determinations as required.(95)

A secretariat, comprising an Executive Secretary and necessary staff, provides administrative support for the UNCC. In particular, it administers the compensation fund.(96)

B. Categories of Claims and Procedures for Submission

An important consideration in constructing the claims process was the desire to make rapid payment of the most urgent claims.(97) To this end, the Governing Council concluded that small individual claims should be processed first.(98) Furthermore, individuals could not submit claims themselves. Rather, the governments whose nationals had claims were instructed to compile the claims and make one or more consolidated submissions of all such claims in each category described by the Council.(99) Governments were also allowed, at their discretion, to submit claims on behalf of other persons resident in their territories.(100)

The Council charged the UNCC Executive Secretary with circulating claims forms to governments, and each government was urged to return the completed forms within six months from the date they were provided.(101) In the interest of efficiency, the claims forms were as simple as possible: they required only that individual claimants identify themselves; give the amount, type, and reason for each loss; provide any relevant available documentation; and affirm the submission was correct.(102) Governments submitting claims were required only to affirm that, on the basis of information available, the individual claimants were their nationals or residents, and that they had no reason to believe the claimants' information was incorrect.(103)

Another concession to efficiency was the decision not to scrutinize each individual claim. Instead, because of the large volume of claims anticipated, commissioners were to verify individual claims on a sample basis, inquiring further only if circumstances warranted.(104) The commissioners would report to the Governing Council on the claims received and the amount recommended for the claims submitted by each government. The Council then would decide the total amount to be allocated to each government, which in turn would be responsible for distributing the funds to its nationals or residents.(105)

Acknowledging that funds to pay these claims might not be available as needed, the UNCC anticipated making pro rata payments to governments as funds became available. The Governing Council was to allocate funds among the various categories of claims and to decide on the priority of payments.(106)

Having decided to address small individual claims first, the Governing Council created four categories of such claims. Category "A" or "departure" claims purported to compensate those who had departed Iraq or Kuwait between August 2, 1990, and March 2, 1991. Category "A" claimants who could provide simple documentation of the fact and the date of departure from Iraq or Kuwait would receive $2500, with no documentation of actual loss required.(107)

Category "B" was designed to cover losses suffered from serious personal injury or from the death of a spouse, child, or parent. In the case of serious personal injury, $2500 would be provided where the claimant provided simple documentation of the fact and the date of the injury. In the case of death, $2500 would be provided if there was simple documentation of the death and of the family relationship. As with Category "A. claims, no documentation of the actual amount of loss would be required.(108)

Categories "C" and "D" addressed larger individual losses with respect to death or personal injury; loss of income, support, housing, or personal property; medical expenses; and costs of departure.(109) Category "C" is appropriate for losses of up to $100,000, and Category "D" for losses over $100,000. To recover, claimants must provide appropriate evidence of the circumstances and amount of the alleged loss.(110)

Ultimately, the Governing Council added two additional categories to the four individual categories:(111) "E" for corporate claims and "F" for government claims.

Guiding decisions in all categories was the Council's list of "Applicable Requirements." These requirements were generous toward Iraq's victims, compensating "death, personal injury, or other direct loss" as a result of: (1) "military operations or threat of military action by either side between. August 2, 1990, and March 2, 1991; (2) "departure from or inability to leave Iraq or Kuwait (or a decision not to return) during that period;" (3 actions taken by officials, employees, or agents of Iraq in connection with the invasion or occupation during the specified period; (4) "the breakdown of civil order in Kuwait or Iraq. at that time; or (5) "hostage-taking or other illegal detention."(112) With this expansive view of the compensable, a carefully wrought structure, and operating funds provided by the United Nations, the UNCC was ready to begin its work.

IV. THE COMPENSATION SYSTEM IN PRACTICE

Despite its careful design, the UNCC has had only limited success. To its credit, the Commission has elicited and processed millions of claims in its seven-year history. Regrettably, however, it has compensated relatively few of Iraq's victims.

A. 1991-93: Millions Filed, None Paid

From the outset, the structure of the UNCC and the decisions of its Governing Council were influenced greatly by two factors: the enormous number of potential claims and the likelihood that funds would never be sufficient to satisfy these claims fully.(113) Despite these hurdles, the UNCC made substantial administrative progress in its first two years. From July 1991 through June 1992, the Governing Council issued a series of decisions that defined compensable losses, outlined the claims procedure, and specified qualifications for commissioners.(114) In July 1992, the UNCC began accepting claims.

During its first year, the UNCC had worked hard to create simple procedures that would readily allow victims to file claims. Its success was immediately apparent: In the first seven months of the filing period, 380,000 claims were filed;(115) a month later, that number had risen to 400,000.(116) Two problems had arisen, however: as of February 1993, no commissioners had been appointed to process these claims, and, more significantly, Iraq refused to comply with the terms under which it would be allowed to resume oil sales.(117) As President Clinton described the situation, "[T]he availability of funds to pay claims . . . depends upon Iraq's resumption of oil sales under conditions acceptable to the U.N.S.C. Iraq's failure to comply with the relevant aspects of U.N.S.C. resolutions and U.N.S.C.R. 687 has precluded the lifting of sanctions on the sale of Iraqi oil."(118) Although the first problem was rectified at the Governing Council's March 1993 meeting, the second would become a definitive blight on the Council's success.

Undeterred by the apparent lack of funds, victims continued to file claims. By August 1993, the UNCC had received approximately 920,000 claims.(119) Although initials the UNCC had set a July 1993 filing deadline, the unstarched flood of claims persuaded the UNCC to extend the deadline until October 1, 1993.(120) The UNCC hoped to submit claims to commissioners the following December or January, with the hope that payments would begin during the second half of 1994.(121)

By the revised October deadline, claims totalled 1,019,373, with an asserted value of $15 billion.(122) Again, because of the volume of claims, the Governing Council granted a three-month extension to thirty countries filing "A," "B," and "C. claims.(123) By the end of that period, December 31, 1993, 2.3 million claims(124) had been filed.(125)

B. 1993-95: Embargo Continues, International Resolve Weakens

With the filing periods ended for "A," "B," "C," and "D" claims, the commissioners lost no time beginning the next phase.(126) Commissioners who received claims in December 1993 had processed them by April 1994.(127) The commissioners' recommendations regarding the first batch of claims were approved in May,(128) and the first awards were paid in June.(129)

Despite this impressive beginning, the UNCC made no more payments until October 1995.(130) It had run into an obstacle that its hard work and good intentions could not surmount: lack of money to pay claimants. This problem derived from two sources: first, Iraq's refusal to comply with its cease-fire obligations, which precluded lifting the embargo; second, the refusal of all nations except the United States to loan money to the UNCC.

1. Iraq's Recalcitrance

As noted above,(131) the U.N. Security Council in Resolution 661 had embargoed Iraq and frozen its extraterritorial assets in August 1990. Initially, this resolution was intended to pressure the Iraqis to withdraw from Kuwait. With Iraq's defeat in the Gulf War, Resolution 661 obtained ambitious new purposes: to force Iraq to comply with its cease-fire agreement to release hostages,(132) to surrender its weapons of mass destruction,(133) to identify dangerous weaponry abandoned in Kuwait,(134) and to assume liability for losses resulting from the Gulf War. (135)

In the immediate post-war jubilation over the allied forces' success, observers were optimistic that the embargo would fulfill this purpose.(136) Commentators opined Iraq could not function without oil revenues, and most of them believed Iraqi oil would soon be sold in the world market again. Under U.N. Security Council Resolution 692,(137) these revenues would fund both Iraq's substantial domestic needs and the UNCC's damage awards.

Unfortunately for the success of the UNCC, the commentators and the Security Council had underestimated Saddam Hussein's determination(138) and Iraq's resultant position regarding oil exportation. After six and a half years, and despite critical domestic needs,(139) Hussein has refused to comply with Security Council criteria;(140) thus, the embargo remains in effect. With minor exceptions, no oil has been legally sold(141) and no oil revenues have accrued to the Compensation Fund.(142)

In retrospect, those who doubted the effectiveness of nonviolent economic sanctions have been proven correct. As one advocate of military action noted before the war:

Those who say we should wait for sanctions to work are taking an

enormous gamble. They are betting that the sanctions will be effective,

that Hussein's response eventually will be reasonable or that he will be

deposed, that the international coalition can hold together against the

appeasers. The odds are not good. . . .(143)

Similarly, the Economist's 1990 prognostication appears well taken: Expecting Iraq to pay war reparations was "perfectly just and wholly unrealistic."(144)

2. Iraq's Frozen Assets and their Nominal Seizure

When it became clear that Iraq would not re-enter the oil market quickly and generate funds for the UNCC, the Security Council implemented a second plan through which it hoped to obtain finds: seizing Iraqi assets frozen abroad when Iraq invaded Kuwait. Billions of dollars were frozen in such accounts. Seizing them would not only generate funds for the UNCC, but would also prevent funds from reaching Iraq,(145) thus increasing pressure on that country to comply with the terms prerequisite to lifting the embargo.(146)

This strategy seemed promising. Iraq had already approached Japan about obtaining assets frozen in Japanese banks,(147) and when the U.N. Security Council began to formalize its plan to seize the assets, Iraq signaled its discomfiture. Attempting to negotiate an alternative, Iraq proposed that the Security Council allow Iraq to sell $4 billion worth of oil and give a portion to the UNCC.(148)

The Council rejected this offer and adopted Resolution 778 in October 1992.(149) Resolution 778 enabled the United Nations to confiscate frozen Iraqi funds and deposit them in an escrow account authorized by Resolutions 706 and 712. Thirty percent of proceeds from oil paid for after August 5, 1990, and proceeds of oil belonging to Iraq would go to the Compensation Fund.(150)

The Commission had obtained $100 million from these funds by February 1993, with $21 million going to the Compensation Fund to allow it to reimburse loans from the United Nations and cover its budget for the following year.(151) Nevertheless, the billion dollars the Council hoped to seize never materialized, and by August it was clear the UNCC would glean only enough money to continue operating--not enough to pay any claims.(152) As of January 1994, the UNCC's financial health had "not changed much,"(153) and an April 1995 report announced, "In contrast to the UNCC's obvious accomplishments in processing claims, the UN has made practically no progress in finding money with which to pay claimants."(154)

The source of this problem was pragmatic, not philosophical. While nominally supporting the seizure strategy of the United Nations, most countries holding Iraqi assets preferred to continue doing so and to pay claims being adjudicated in their domestic courts.(155) Although the frozen funds were to be repaid when Iraq began selling oil, Iraq's continued unwillingness to re-enter the oil market worried these countries. They did not want to disadvantage their own citizens in favor of claimants chosen by the United Nations,(156) and by 1995 only the United States had loaned Iraqi assets to the UNCC.(157)

This lack of support posed a continuing problem for the UNCC--one that required alternative solutions to be developed in the face of an increasingly fragmented and unsupportive international community.

3. Political Resolve Weakens

By May 1994, it was clear that neither imminent oil sales nor the seizure of frozen assets would solve the UNCC's funding problem (158) U.N. Secretary-General Boutros Boutros-Ghali proposed a third solution. Boutros-Ghali observed that Iraq had exported a substantial volume of oil just before the Security Council imposed sanctions, and that payment would not have been completed when the sanctions took effect on August 6, 1990. Boutros-Ghali suggested that the oil industry could locate the hundreds of millions of dollars involved.(159) This plan, too, failed to generate funds, and that failure was accompanied by a disturbing trend: international resolve to maintain the embargo seemed to be weakening.

More than half the fifteen countries on the Security Council had indicated they thought Iraq had taken actions that would result in the lifting of the embargo.(160) Russia and France argued that Hussein had made progress and that lifting the embargo would encourage further reform.(161) Furthermore, Turkey requested it be allowed to sell Iraqi oil trapped in a Turkish pipeline and to pay the Iraqis with food and medical supplies.(162)

It became increasingly clear that, as the immediate threat to Kuwait had passed, few countries would champion international restitution at the expense of their own citizens whose claims could be paid from frozen assets under those countries' control. Although the United States remained supportive of the UNCC, it too began considering how to satisfy domestic claims. At the request of the Clinton Administration, legislation was introduced in the Senate and the House to provide a procedure for liquidating Iraq's assets in the United States and allocating those assets among domestic claimants.(163)

This legislation did not conflict with the U.N. claims process as originally envisioned. The original U.N. process assumed funding would come from Iraqi oil sales and did not involve seizing frozen assets. As noted, however, oil revenues had not materialized, and the UNCC was in fact dependent on the loans of frozen assets it had requested governments to make. By pursuing legislation to reallocate these assets, even if at some future date, the Clinton Administration signaled its frustration with the claims process and with the international community's refusal to loan frozen assets as the United States had.(164)

4. Business Pressures Mount

By the end of 1994, waning political support had become a disturbing and unrelenting influence on the UNCC's progress. Two other factors added to its distress: first, Saddam Hussein's indomitability, which had affected the UNCC since its inception, and second, the workings of the world's business community, which were a growing concern.

As discussed, Compensation Fund revenues were dependent on a series of events: Iraq must comply with its cease-fire agreements, re-enter the world oil market, and generate cash. Four years after the war, this process had not begun, and Hussein gave no indication that it soon would.(165) Not only did Hussein refuse to disarm, but he was also smuggling oil onto the world market, in defiance of the embargo.(166)

Observing the ineffectiveness of the United Nations and Hussein's intractable spirit, the international business community began operating as though Iraq would soon re-enter the world market.(167) The early months of 1995 saw "a shift in both the rumour mill, and in Western nations' open policy" regarding contact with Hussein's regime.(168)

In January, France announced it would open an interest section in Baghdad, posting diplomatic personnel there.(169) Although Britain and the United States expressed disapproval of this decision, asserting it was tantamount to telling Hussein that sanctions would soon be removed, the United States was already operating such a section through the Polish embassy, and British interests had been served by Russia since 1991.(170)

Furthermore, observers reported a "steady stream of briefcase-toting businessmen" making contact with Iraq.(171) British(172) and Italian trade delegations(173) visited Iraq in early 1991, as did a group of Americans without State Department approval.(174) French and Russian companies signed contracts for oilfield development work.(175) German businessmen complained about having to refrain from doing business with Iraq while others were making lucrative deals.(176)

In March 1991, Baghdad hosted an oil conference at which it promised lucrative contracts to companies willing to help it develop new oil fields after sanctions were lifted.(177) The oil company executives who attended came from twenty-nine countries, including Australia, Britain, Canada, Finland, Germany, Greece, Ireland, South Korea, Spain, Turkey, and the United Arab Emirates.(178) Conference attendees did not hide their enthusiasm about the $30 billion project proposed by Iraq. As a Finnish oil executive told Reuters, "The potential here must be the best in the world for increased production and exploration. I am here to find out what opportunities there are."(179)

International political leaders became increasingly aware that the business community was reintegrating Iraq whether or not diplomats approved. France, Russia, and China pressured the Security Council to lift sanctions against Iraq.(180) Britain still supported the U.S. position that the resolutions should be followed to the letter but began urging the United States to prepare for the day when the Security Council would lift sanctions despite a lack of compliance.(181)

5. Iraq's Weaponry Proves Decisive

Indeed, the business world seemed to have joined forces with Hussein so decisively that the sanctions seemed doomed. Theoretically, this might have been good news for the UNCC: if Iraq sold oil, the UNCC was to receive thirty percent of the revenues. In reality, however, the possibility of receiving these funds was threatened, not bolstered, by this trend.

If Hussein convinced the United Nations to lift the embargo despite Iraq's noncompliance, he likely would make a subsequent demand: that the United Nations not garnish the proceeds.(182) With the corporate world increasingly hungry for lucrative Iraqi contracts, ungarnished sales were no longer unthinkable.

The first step down this path was lifting the embargo, and France and Russia were blazing the trail. Those countries prepared to present a resolution to the Security Council calling for an immediate suspension of the embargo.(183) By March 1995, the resolution's success seemed assured. Then, in April, the United Nations Special Commission (UNSCOM) investigating Iraq's weapons of mass destruction issued a report that dramatically altered diplomatic intent.

Iraq and its new-found business allies had eagerly awaited this report. UNSCOM had overseen the destruction of Iraq's nonconventional weaponry and established a monitoring system to prevent their reactivation.(184) Observers believed UNSCOM's report would state that the commission had done all it could and that Iraq was in substantial compliance with Resolution 687 despite Iraq's hampering of UNSCOM.(185)

Instead, UNSCOM reported that, although Iraq's nuclear and chemical weapons programs had been "curtailed[,] . . . serious doubts remained about the country's biological warfare capability."(186) Rolf Ekeus, the Swedish diplomat who headed UNSCOM at the time, expressed such dramatic reservations about Iraq's compliance that France and Russia reversed their position against an immediate suspension of the embargo.(187)

The United States seized the opportunity to revive support for the embargo, warning the U.N. monitoring program could be shut down within weeks of any unconditional lifting of sanctions.(188) The State Department estimated that, without sanctions and monitoring, Iraq's ballistic missile projects would be operational within one year, its chemical weapons within two, and its atomic bomb within five.(189)

C. 1995-97: Stalemate

In its seven-year history, the UNCC has processed 2.4 million claims, for a total of six billion dollars. It has paid claimants, however, only $726 million, leaving over five billion processed claims unpaid and $238 billion in claims unprocessed. Iraq's refusal to re-enter the oil market has created an obstacle to paying these claims which remains insuperable. The "Oil-for-Food" Deal presented a partial solution to the UNCC's financial problems, but it ultimately failed to resolve the crisis.

1. Processing Continues, Payment Stalls

By late 1994, the UNCC's inability to fund damage awards, either through garnishing Iraqi oil revenues or seizing frozen assets, had become clear. Nevertheless, both claimants and the UNCC persevered. By November of that year, approximately 2.6 million claims had been filed, with an asserted value of $162 billion.(190) The UNCC doggedly began to process them, and, by July 1996, it had approved 2.2 million claims worth $3. billion.(191)

The UNCC's most substantial progress concerned "A," "B," and "C" claims. The commissioners and the Governing Council began processing Category "B" claims first, having deemed them the most urgent. Between June 1994 and October 1995, the Council processed all the "B" claims,(192) awarding a total of $13.5 million to 4000 claimants.(193) Between October 1994 and October 1996, the Governing Council processed all the "A" claims. In a series of six decisions, the Council awarded $3.2 billion to more than 922,000 claimants.(194) In December 1994, the Council began processing "C" claims, and, by December 1996, had issued decisions on four installments.(195) These decisions encompassed 200,000 of the 420,000 "C" claims, and the UNCC anticipates that all "C" claims will be processed by 1998.(196)

Thus, in five years, the UNCC processed over two million awards totalling almost $4 billion. In contrast to this success in approving awards, however, lies the UNCC's failure in actual funding them. The UNCC's initial payment of B-claims, made in June 1994, was a harbinger of problems to come. Although the June payment was made promptly after the claims were approved,(197) it was made with borrowed money,(198) Furthermore, this $2.7 million payment was more symbolic than substantive, representing less than .001% of the value of claims alleged.(199) Most disturbingly, it was the only installment paid during the UNCC's first four years of operation.(200) Eventually, the UNCC paid all 4000 B-claimants,(201) and most A- and C-claimants have received compensation.(202) To date, however, most claims remain unpaid.

Realistically, then, both payment and processing remain problematic. The UNCC has "awarded" over six billion dollars but has paid only $726 million. This $726 million amounts to only .3% of the total asserted value of the claims. Even if commissioners are correct that the claims are overvalued by a factor of three, the payment ratio remains .009.

Furthermore, that the UNCC has processed more than ninety percent of the claims is little solace to corporate and government claimants. Although the UNCC efficiently processed 2.4 million of 2.6 million claims, the 200,000 claims remaining account for $238 billion of the $244 billion in alleged damages. Even if the commissioners are correct that the outstanding claims are valued more accurately at $81 billion than $244 billion, the UNCC has yet to process claims for ninety-three percent of the monetary damage.

2. The "Oil-for-Food" Deal: Resolution 986

As discussed above, international commitment to the embargo against Iraq waned during the mid-1990s. A number of countries became increasingly responsive to pressures from the business world(203) and began advocating an end to the embargo despite Iraq's failure to comply with treaty terms.(204) Added to these political and corporate forces were the humanitarian concerns of the United Nations for the Iraqi people.

The United Nations had assessed conditions in Iraq immediately after the 1991 cease-fire(205) and found hunger, illness, and inoperative sanitation and agricultural systems.(206) As a result, the Security Council passed Resolution 687, allowing Iraq to receive food and other humanitarian supplies although maintaining a general embargo.(207)

This concession was not enough, however, to end the Iraqis' suffering. Resolution 687 was designed to provide temporary relief until Iraq began selling oil again. As Iraq has refused to do so, it has not generated funds needed to restore a tolerable standard of living. Seven years after the cease-fire, living conditions in Iraq remain largely unchanged.

In 1994, the Red Cross and the Red Crescent Societies described the humanitarian situation in Iraq as "disastrous,"(208) and this situation has continued to deteriorate. Malnutrition and child mortality have increased dramatically during the embargo, and damaged sanitation facilities, poor disease control, and a lack of safe water have led to a steep escalation in water-borne diseases.(209) Meanwhile, Saddam Hussein has built fifteen palaces rather than repairing the infrastructure.(210)

In response to this crisis, the Security Council adopted Resolution 986 in April 1995.(211) Resolution 986 provided that Iraq could export $1 billion of oil every ninety days, notwithstanding Resolution 661 (1990), which otherwise prohibits exportation.(212) The resolution placed two conditions on the exports: (1) that the Iraqi Sanctions Committee(213) approve each sale;(214) and (2) that payments be made into a special escrow account overseen by the U.N. Secretary-General. The resolution provided it would become effective one day after the Secretary-General informed the Security Council that requisite preparations were complete and would remain in force for an initial 180-day period. Moreover, the resolution required the Security Council to review the exportations twice during this period, and to consider renewing the resolution if the reviews were favorable and if Iraq had equitably distributed the food and medical supplies purchased with the proceeds.(215) The resolution also required that the Compensation Fund receive up to thirty percent of the funds deposited in the Iraqi escrow account.(216)

Initially, Resolution 986 seemed like a promising step toward solving a variety of problems: it would provide enough funds for humanitarian relief but not enough for military build-up; it invited Iraq to rejoin the world economy while preserving the requirement that Iraq honor its treaty obligations; and it would provide a source of funds for the UNCC.(217)

Iraq, however, rejected Resolution 986 immediately,(218) calling it "illogical and interventionist."(219) Insisting on the total lifting of sanctions,(220) Iraq argued that Resolution 986 interfered with Iraqi sovereignty because it allotted some food to rebel Kurds, to be distributed outside Iraqi government channels.(221)

Iraq maintained this stance for ten months. Then, in 1996, Iraq and the United Nations entered negotiations leading to Iraq's acceptance of the terms of Resolution 986. In February of that year, U.N. legal counsel Hans Corell and Iraqi envoy Abdul Amir al-Anbari held a series of fourteen "technical discussions" in which details of the "oil-for-food" deal were addressed.(222) They failed to reach an agreement, however,(223) and a second round of talks was held in March.(224) Those talks also ended without an agreement, primarily because the dispute over aid to the Kurds remained unresolved.(225) Finally, after a third round of talks,(226) Iraq and the United Nations reached an agreement about the resumption of oil sales. This agreement was memorialized in a Memorandum of Understanding on May 20, 1996.(227)

As Resolution 986 had originally provided, Iraq could now sell up to $2 billion worth of oil over six months. Iraq's chief negotiator, Abd al-Amir al-Anbari, was confident that oil sales would resume by August 1996.(228) The UNCC anticipated receiving $100 million per month with which it could begin paying claims.(229) These predictions, however, proved overly optimistic.

In August, Hussein's government began to balk at the deal, demanding that Iraq receive the money allocated to the UNCC.(230) Iraq argued it needed the money to pay for its legal defense against the compensation claims and further asserted a right to the funds under international law.(231) Iraq's Deputy Foreign Minister, Riyadh Al-Qaysi, presented this argument to the panel of commissioners evaluating the KOC claim,(232) which refused to delay hearings on that claim. Al-Qaysi then walked out with his delegation, announcing to the press that "it would be a parody of justice" if the Governing Council garnished Iraq's oil revenues to pay the Compensation Commission.(233) Shortly thereafter, Iraq invaded Kurdistan, further delaying oil sales under Resolution 986.(234) As the Commission's executive secretary put it, "Troubles have upset the plan."(235)

At last, in December 1996, Resolution 986 was implemented--twenty months after the Security Council had adopted it and seven months after Iraq had agreed to it.(236) Despite its inauspicious beginnings, the oil-for-food plan functioned admirably for the first half of 1997. By February of that year, the Sanctions Committee had approved four contracts for humanitarian aid, totaling $97.5 million; supplies were to reach Iraq by March.(237) During the first 180-day period of the oil-for-food regime, fifty-one oil contracts were approved for a total of 121 million barrels, and sales of $2.16 billion were completed.(238) By the time the period ended in June, over $1.7 billion in oil-sale proceeds had been deposited into Iraq's U.N. account, and $497.2 million had been transferred directly to the UNCC fund, with $151.3 million allocated to the payment of claims and UNCC operating expenses.(239) From these funds, the UNCC paid $144 million to sixty-three governments and one international organization in satisfaction of 57,636 "A" and "C" claims.(240)

This payment trend, however, did not continue. After completing a single 180-day oil-for-food period, Iraq raised new objections to the agreement and suspended oil sales.(241) The UNCC thus conducted its twenty-fourth meeting under the familiar and unfortunate conditions that had plagued its five-year history: it awarded to claimants substantial sums it had no immediate prospects of being able to fund. Specifically, at its June meeting, the UNCC approved a fifth installment of 76,000 "C" claim payments totalling $721 million,(242) to be distributed to forty-three countries and three international organizations.(243) That installment brought the total of "C" claim awards to $2.1 billion, to be paid to 277,730 claimants.(244)

At its next meeting in September, the UNCC reviewed claims from 1.24 million Egyptian workers(245) seeking redress for lost funds they had deposited in Iraqi banks for transfer to Egypt.(246) Although the UNCC concluded that 223,817 claims did not fall within its jurisdiction, it awarded 900,000 workers $84,393,992, bringing the total number of claims resolved to more than 2.4 million, for a total of more than $6 billion.(247)

Fortunately for claimants and the UNCC, oil-for-food revenues were once again being generated after the June-to August hiatus imposed by Iraq. Thus, in October 1997, the UNCC was able for the third time(248) to make funds available to pay previously awarded "A" and "C" claims.(249) These funds totalled $568,972,563, and were transferred to seventy-five governments and three international organizations on behalf of 228,575 claimants.(250)

At its final meeting of 1997, the UNCC approved the award of $2,220,043 in satisfaction of eleven "F" claims filed by nine governments.(251)

D. The Future of the UNCC: The "Ambitious Five-Year Plan.

After seven years of operation, the UNCC still has $238 billion of claims to resolve. The most substantial claims have yet to be evaluated. Thousands of corporations seek billions of dollars in "E" claim compensation,(252) and numerous countries seek additional billions in "F" claim compensation for environmental damage and costs incurred in responding to it.(253) The UNCC has set forth an ambitious plan for processing all these claims by 2003.(254) It intends to complete all Category "C" claims by the end of 1998 and will then concentrate its resources on the remaining "D," "E," and "F" claims.(255) Based on its record thus far, the UNCC seems likely to be able to evaluate these claims according to the schedule it has established. The diligence and speed with which the commissioners and their staff have worked has often been lauded.(256) The unanswerable question, however, is the obvious one: will Iraq maintain oil sales that will generate the revenue required to satisfy the claims processed by the UNCC?

V. CONCLUSIONS AND RECOMMENDATIONS

During the seven years of its existence, the UNCC has accomplished a great deal. It has approved 2.4 million awards worth more than $6 billion,(257) and it has paid "A," "B," and "C" claimants more than $726 million.(258) More significantly, it has renewed faith in the post-war claims commission as an institution.

The UNCC has garnered praise from many quarters. Observers have called its progress "remarkably swift and unprecedented"(259) and its accomplishments "impressive."(260) It has been lauded as a "bold and thus far largely successful experiment,"(261) "an institution that represents one of the most important developments in international law in this decade,"(262) "the fulfillment of the ideal of peaceful settlement of disputes. . . ."(263)

Yet its success has not been unbridled. For the first five years of its existence, the UNCC's operating budget exceeded claims payments by a factor of two.(264) Total operating costs during that period probably exceeded payments by a factor of ten. If its success were to be measured by its ability to compensate victims swiftly, the UNCC would have to be deemed a failure.

But the UNCC is a success, because it serves all the traditional goals of post-war reparation.(265) Society remains interested in achieving correction, example, and retribution regarding proponents of unjust wars. The UNCC is an important mechanism for achieving these goals, even though it has had limited success in delivering funds.

Regarding the goal of correction,(266) the UNCC's success is reflected in Saddam Hussein's failure to create a global holocaust and to accomplish his goal of recreating the Abbasid Empire.(267) In practical terms, the UNCC'S garnishment mechanism deters future military activity because the reduced revenues render Iraq less able to engage in military spending.(268) Garnishment also deters military aggression by making the Iraqis less willing to undertake such action. It provides a warning that unjust belligerence will not go unpunished. Although critics of the garnishment provision have argued that it exacts too high a price from the Iraqi people, such arguments fail in the face of well-established precepts concerning human rights and duties.(269) The Iraqis should not be allowed to evade their moral and financial obligations by hiding behind the Myth of Popular Innocence.(270) By requiring Iraq to fulfill the obligations to which it has agreed, the United Nations effectuates the corrective purpose of the cease-fire provisions.

Regarding the goal of example,(271) the UNCC's success is shown best by the fact that victims of other wars have begun to inquire as to whether the United Nations can establish similar commissions to evaluate their claims.(272) Although aggressors may go undeterred, thus failing to heed the U.N. message of nonaggression, at least their victims find in the UNCC an example of a global attempt to vindicate victims' rights.

Finally, regarding the goal of retribution,(273) the UNCC has exacted satisfaction from Iraq on behalf of thousands of claimants who, though not fully restored, have received substantial compensation.

As a U.N.-sponsored commission, the UNCC series both symbolic and practical functions. In the long run, it will fail to compensate all victims for all harms suffered. Nevertheless, it embodies principles society cannot afford to sacrifice: that unjustified aggressors will be punished and that, at least on occasion, their victims will be compensated. (1.) Hugo Grotius, De Jure Belli Ac Pacis Libri Tres, Vol. II, at 470 (Francis W. Kelsey trans., Oxford Univ. Press 1925) (1625) [hereinafter Grotius, Kelsey trans.] (quoting Tacitus).

(2.) See, e.g., Hugo Grotius, on the Rights of War and Peace 368-69 (William Whewell trans., Cambridge Univ. Press 1853) (1625) [hereinafter Grotius, Whewell trans.] (citing Cicero). See generally Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome (1911) (discussing in two volumes such topics as treaties, international arbitration, and the laws of war) (citing Grotius).

Grotius notes that restitution is a familiar concept in the Judeo-Christian and Islamic traditions. Grotius, Whewell trans., supra, at 369. The earliest writings on this subject express this proposition. See, e.g., Grotius, Kelsey trans., supra note 1, at 469-70 (quoting Apuleius: "It is a more serious and unpleasant matter than any punishment if impunity is extended to the guilty and he is not in the meantime harassed by the censure of his fellow men.") (quoting Plutarch: "The punishments which immediately follow the crime not only restrain boldness in sinning for the future but also give the greatest comfort to those affected by the wrong.") (citing Aristotle).

(3.) For a discussion of the history of international claims settlements, see E. K. Nantwi, The Enforcement of International Judicial Decisions and Arbitral Awards in Public International Law 3-19 (1966); Manley O. Hudson, International Tribunals, Past and Future 3-14 (1944); Jackson H. Ralston, A Brief History of International Arbitration, in The Law and Procedures of International Tribunals, xxv-xl (rev. ed. 1926).

(4.) Grotius's eminence as a legal scholar is well-established:

Hugo Grotius, justly regarded as the founder of modern international law,

was the most remarkable man of the age in which he lived--an age

distinguished for men of genius and learning.... His great work, `De Jure

Belli ac Pacis,' was published at Paris in 1625.... This work has been

translated into all languages, and has elicited the admiration of all

nations and of all succeeding ages. Its author is universally regarded as

the great master-builder of the science of international jurisprudence.

Henry Wager Halleck, 1 Halleck's International Law 12 (Sheraton Baker ed., Kegan, Paul, Trench, Turner, & Co., 3d ed. 1893) (1861). His works are still cited for the precepts they establish. See, e.g., Frederick O. Bonkovsky, International Norms and National Policy 65-80 (1980) (discussing Grotius's contributions to the just-war theory); Marjorie M. Whiteman, 2 Damages in International law 829 (1937) (citing De Jure Belli ac Pacis for the proposition that "fault creates the obligation to make good the loss"). For biographical information and analyses of Grotius's major works, including De Jure Praedae, De Jure Belli ac Pacis, and Apologeticus, see Edward Dumbauld, The Life and Legal Writings of Hugo Grotius (1969).

(5.) Grotius, Whewell trans., supra note 2, at 369.

(6.) Grotius, Kelsey trans., supra note 1, at 469.

(7.) Id. at 470.

(8.) Id. Grotius cites, among others, Paul the jurist, Plato, Plutarch, and Xenophon as approving this motivation for punishment. Id. at 470-71. He quotes Seneca as additional support for this notion: "`Just as we heat some twisted spear-points to straighten them, and lay[] them on the anvil hammer. . .. not to break them, but to perfect them, so we correct serious depravities by bodily and mental pain;' . . . `[such punishments are to be] received like a surgeon's knife, abstinence, and other things that cause pain for our good.'" Id. at 470, n. 1.

(9.) Id. at 475. Grotius notes that the Greeks called this [GREEK TEXT NOT REPRODUCIBLE IN ASCII], the Romans exempla. Id. He cites Pliny and Demosthenes as approving this theory of punishment. Id. at 475-76.

(10.) Id.

(11.) Id. at 469. Grotius cites Taurus, Clement of Alexandria, Aristotle, and Plutarch as sources for this theory. Id.

(12.) Some scholars characterize the UNCC as within an established tradition of international post-war tribunals. See, e.g., David J. Bederman, Historical Analogues of the United Nations Compensation Commission, in The United Nations Compensation Commission 257 (Richard B. Lillich ed., 1995) hereinafter Bederman, 1995]; David J. Bederman, The United Nations Compensation Commission and the Tradition of International Claims Settlement, 27 N.Y.U. J. Int'l & Pol. 1 (1994) [hereinafter Bederman, 1994]; David J. Bederman, The Glorious Past and Uncertain Future of International Claims Tribunals, in International Courts for the Twenty-first Century 161, 189-93 (Mark W. Janis ed., 1992); Elyse J. Garmise, Note, The Iraqi Claims Process and the Ghost of Versailles, 67 N.Y.U. L. Rev. 840 (1992) (comparing the Iraqi claims process to the Versailles claims process).

Others argue the Commission is a significant departure. See, e.g., Francis E. McGovern, The Intellectual Heritage of Claims Processing at the United Nations Compensation Commission, in The United Nations Compensation Commission 45, 46-55 (Richard B. Lillich, ed. 1995) ("The structure and role of the UNCC does not have a well-defined historical antecedent"); Bachir Georges Affaki, The United Nations Compensation Commission. A New Era in Claims Settlement?, 10 J. Int'l Arb. 21 (1993); Carlos Alzamora, Reflections on the United Nations Compensation Commission, 9 Arb. Int'l 349 (1993); John R. Crook, The United Nations Compensation Commission--A New Structure to Enforce State Responsibility, 87 Am. J. Int'l Law 144 (1993); David H. Caron, The Gulf War, the U.N. Compensation Commission and the Search for Practical Justice, Transcript 26 (fall 1991); Stanley J. Glod, International Claims Arising from Iraq's Invasion of Kuwait, 25 Int'l Law. 713 (1991).

(13.) "A" Claims total $3.2 billion. Future of U.N.C.C. Hinges on Funding, Says its Chief of Legal Services, 11 No. 10 Mealey's Int'l Arb. Rep. 19 (1996) [hereinafter Future of U.N.C.C.]. See infra note 194. "B" claims total $13.45 million. Gustavo Capdevila, Gulf War: Compensation for Iraq Invasion Raised to $6 Billion, Inter Press Serv., June 24, 1997, available in 1997 WL 7076118. See infra notes 192-93 and accompanying text. "C" claims total $2.1 billion. Capdevila, supra. See infra note 195. "D" claims total approximately $15 billion. Keith Highet et al., Internatio[n]al Courts and Tribunals, 31 Int'l Law. 599, 603 (1997). "E" claims total at least $82 billion. Neil King, Jr., Battle Plan: Firms Seek Billions of Dollars to Cover Guy War Losses, Wall St. J. (Eur.), Aug. 19, 1997, at 1, available in 1997 WL-WSJE 12210226. "F" claims total at least $142 billion. Id. Some estimates place the "F" claims as high as $200 billion. Highet et al., supra.

(14.) U.N. to Compensate Egyptian Workers 84 Million Dollars, Xinhua Eng. Newswire, Oct. 2, 1997, available in 1997 WL 11202588 [hereinafter U.N. to Compensate Egyptian Workers].

(15.) S.C. Res. 660, U.N. SCOR, 45th Sess., 2932d mtg., [paragraphs] 1-2, U.N. Doc. S/RES/660 (1990), repeated in 29 I.L.M. 1323, 1325 (1990). Resolution 660, adopted 14-0 with Yemen abstaining, also called on Iraq and Kuwait to begin immediate, intensive negotiations to resolve their differences. Id. For a discussion of various countries views regarding sanctions, see Christopher C. Joyner, Sanctions, Compliance and International Law: Reflections on the United Nations' Experience Against Iraq 32 Va. J. Int'l. L. 1, 17-26 (1991).

(16.) S.C. Res. 661, U.N. SCOR, 45th Sess., 2933d mtg., [paragraphs] 3-4, U.N. Doc. S/RES/661 (1990), reprinted in 29 I.L.M. 1325 (1990). Resolution 661 was adopted 13-0, with Cuba and Yemen abstaining. Id. Although the resolution barred most exports from or imports to Iraq and Kuwait, the Council excepted medical supplies and, in humanitarian circumstances, foodstuffs. Id. Additionally, Jordan continued to import oil from Iraq with the knowledge of the U.N. Security Council Committee established by Resolution 661. Paul Conlon, How Legal Are Jordan's Oil Imports from Iraq?, 6 J. Transnat'l L. & Pol'y 109, 10910 (1996).

(17.) S.C. Res. 661, supra note 16.

(18.) S.C. Res. 662, U.N. SCOR, 45th Sess., 2934th mtg., U.N. Doc. S/RES/662 (1990), reprinted in 29 I.L.M. 1327, 1328 (1990); S.C. Res. 664, U.N SCOR, 45th Sess., 2937th mtg., U.N. Doc. S/RES/664 (1990), reprinted in 29 I.L.M. 1328, 1329 (1990). The Council adopted Resolution 662 on August 9, 1990 (15-0), again demanding Iraq's withdrawal and declaring the annexation "null and void." S.C. Res. 662, supra. In Resolution 664, adopted August 18, 1990 (15-0), the Council demanded that Iraq allow third state nationals to leave Iraq and Kuwait and reinstate diplomatic immunity to diplomatic and consular personnel. S.C. Res. 664, supra.

(19.) S.C. Res. 665, U.N. SCOR, 45th Sess., 2938th mtg., U.N. Doc. S/RES/665 (1990), reprinted in 29 I.L.M. 1329, 1330 (1990). Resolution 665, passed August 25, 1990 (13-0 with Cuba and Yemen abstaining), activated the Military Staff Committee (MSC), a body created by the U.N. Charter to advise the Security Council on military matters. Although the MSC had lain dormant for 40 years, it held informal meetings in September 1990 concerning the Gulf crisis. Ultimately, however, the MSC played no significant role in resolving the situation. Joyner, supra note 15, at 17.

(20.) S.C. Res. 666, U.N. SCOR, 45th Sess., 2939th mtg., U.N. Doc. S/RES/666 (1990), reprinted in 29 I.L.M. 1330, 1331 (1990). In Resolution 666, adopted September 13, 1990 (13-2, Cuba and Yemen opposed), the Council noted its concern over food shortages in those countries and requested that the Secretary General seek information regarding food supplies and the treatment of children, pregnant women, the sick, and the elderly. The Council anticipated that food and medical supplies would be provided through the U.N and humanitarian agencies such as the Red Cross. Id.

(21.) S.C. Res. 667, U.N. SCOR, 45th Sess., 2940th mtg., U.N. Doc. S/RES/667 (1990), reprinted in 29 I.L.M. 1332, 1333 (1990). Resolution 667 was adopted September 16, 1990 (15-0).

(22.) Id. For a discuss on of the brutality of the Iraqi invasion of Kuwait, see Adel Omar Asem, Establishment of the U. N. Compensation Commission: The Kuwaiti Government Perspective, in The United Nations Compensation Commission, supra note 12, at 45, 46-55.

(23.) S.C. Res. 667, supra note 21.

(24.) S.C. Res. 669, U.N. SCOR, 45th Sess., 2942d mtg., U.N Doc. S/RES/669 (1990), reprinted in 29 I.L.M. 1333 (1990). Resolution 669 was adopted September 24, 1990 (15-0).

(25.) S.C. Res. 670, U.N. SCOR, 45th Sess., 2943d mtg., U.N. Doc. S/RES/670 (1990), reprinted in 29 I.L.M. 1334, 1334-36 (1990). Resolution 670, adopted September 25, 1990 (14-1, Cuba opposed), emphasized that flights into or out of Kuwait and Iraq were forbidden under Resolution 661 and that states were to ensure that their aircraft complied. Id. at 1335; see also Lisa Beyer, The Battle Beckons: With Sanctions Serving Only to Increase Saddam's Belligetance and the West Struggling to Fathom His Thinking, War Looks More and More Inevitable, Time, Oct. 8, 1990, at 26 (observing that Hussein's belligerence had not deterred the U.N. Security Council from strengthening its opposition to him, and concluding that, therefore, Resolution 670 was more symbolic than practical in its significance).

(26.) S.C. Res. 670, supra note 25, at 1336. Resolution 670 reminded states to deny entry to Iraq-registered ships and to maintain their freeze on Iraqi assets, both required by Resolution 661. The Council noted it would take measures "directed at the State in question" to prevent any breach of these resolutions. Id.

(27.) Id. at 1335.

(28.) See, e.g., George J. Church, Saddam's Strategies: With Most of the World Arrayed Against Him, Could the Iraqi Leader Break the Embargo--or Even Achieve His Goals in War?, Time, Oct. 1, 1990, at 50. By the end of September, Iraq reportedly had increased its forces in and around Kuwait to 360,000 men and 2800 tanks. Id. Iraqi troops within striking distance of Saudi Arabia totalled 430,000. Beyer, supra note 25. For a discussion of specific atrocities, see Louise Lief & Peter Cary, Rebuilding a Ruined Nation, U.S. News & World Rep., Mar. 11, 1991, at 2628; David Gergen, The Barbarities of Hussein, U.S. News & World Rep., Oct. 1, 1990, at 96 (reporting allegations that Iraqi troops looted hospitals of supplies and equipment; evicted hundreds of patients from critical care facilities and mental hospitals; tortured and killed animals at Kuwait's national zoo; and conducted rapes and executions in a campaign intended to depopulate Kuwait). Mortimer B. Zuckerman echoed Gergen's report of genocide: "The Kuwaiti population has been decimated[;] it's now less than 200,000 while there are 300,000 hostile Palestinians still in Kuwait." Why Hussein Smells Victory, U.S. News & World Rep., Dec. 24, 1990, at 67. Zuckerman doubted the Kuwaitis' ability to repulse Iraq's "million-man Army." Id.

(29.) See S.C. Res. 674, U.N. SCOR, 45th Sess., 2951st mtg., [paragraph] 8, U.N. Doc. S/RES/674 (1990), reprinted in 29 I.L.M. 1561, 1562 (1990). The preamble to Resolution 674 cites these and other examples of unlawful activity. Resolution 674 was adopted October 29, 1990 (13-0, Cuba and Yemen abstaining).

(30.) Id. at 1563.

(31.) Id. at 1561.

(32.) Id. at 1563.

(33.) Id.

(34.) Id.

(35.) S.C. Res. 677, U.N. SCOR, 45th Sess., 2962d mtg., U.N. Doc. S/RES/677 (1990), reprinted in 29 I.L.M. 1564 (1990). Resolution 677 was adopted November 28, 1990 (15-0).

(36.) Id. The Council stated it was "[g]ravely concerned at the ongoing attempt by Iraq to alter the demographic composition of the population of Kuwait. . . ." Id.

(37.) Id.

(38.) Id.

(39.) S.C. Res. 678, U.N. SCOR, 45th Sess., 2963d mtg., [paragraph] 1, U.N. Doc. S/RES/678 (1990), reprinted in 29 I.L.M. 1565, 1565 (1990). Resolution 678 was adopted November 29, 1990 (12-2-1, Cuba and Yemen opposed, China abstaining).

(40.) Id.

(41.) Id.

(42.) The arbitrators are not alone in this assessment:

President George Bush maintained that Iraq was responsible for

reparations and compensation. At a news conference, President Bush

stated, in regard to the UNSC resolutions, "One of them relates to

reparations, and reparations is [sic] a very important part of this.

It is a very important part of what the United Nations has done."

Gregory Townsend, Comment, The Iraq Claims Process: A Progress Report on the United Nations Compensation Commission & U.S. Remedies, 17 Loy. L.A. Int'l Comp. L.J. 973, 977 (1995) (citations omitted). Saddam Hussein sneered at such announcements, calling President Bush "the Satan in the White House." Strobe Talbott, A Storm Erupts: As the Bombs Fell and Missiles Flew, Hopes for a New World Order Gave Way to Familiar Disorder, Time, Jan. 28, 1991, at 14, 15.

(43.) See generally, e.g., The Six-Week War, U.S. News & World Rep, Mar. 11, 1991, at 5873 (providing a week-by-week summary of Gulf War events); George J. Church, So Far, So Good The Air War Gets Off to an Impressive Stan, Time, Jan. 28, 1991, at 18, 20; Bill Javetski et al., The Gulf: A Special Report, Bus. WK., Jan. 28, 1991, at 26.

(44.) Bill Javetski et al., Winning the Peace: A Stable Mideast Will Be Harder to Achieve than Military Victory, Bus. Wk., Mar. 11, 1991, at 24.

(45.) See, e.g., George J. Church, The 100 Hours: In a Battle for the History Books, The Allies Break the Iraqi Army--Quickly, Totally, and at Unbelievably Low Cost, Time, Mar. 11, 1991, at 22, 31.

(46.) S.C. Res. 686, U.N. SCOR, 46th Sess., 2978th mtg., [paragraph] 2(b), U.N. Doc. S/RES/686 (1991), reprinted in 30 I.L.M. 567 (1991). Resolution 686 was adopted 11-1, with Cuba dissenting and China, India, and Yemen abstaining. Id. (Background/Content Summary). For a discussion of damage, see Lief & Carey, supra note 28. Lief & Carey note, for example, that when the Iraqis left Kuwait, they retreated in

an orgy of murder and senseless destruction. . . . More than 600 oil fires

the Iraqis had ignited belched clouds of toxic smoke. . . . [Retreating

soldiers] turned the National Museum into a pile of rubble and burned

libraries and palaces. . . . [T]hey dumped the horribly mutilated corpses

of tortured Kuwaitis in the streets and abducted thousands more citizens.

Id.

Among Lief & Carey's graphic descriptions of atrocities is that of Iraqi medics draining blood from Kuwaiti citizens and transfusing it into wounded Iraqi soldiers. Id.

(47.) S.C. Res. 686, supra note 46. Professor David J. Bederman describes this demand, and Iraq's accession to it, as "[o]ne of the least-noticed aspects of the U.N. offer of armistice terms to prostrate Iraq . . . ." Bederman, 1994, supra note 12, at 1.

(48.) S.C. Res. 686, supra note 46.

(49.) United Nations: Security Council Resolution on Requirements to End Hostilities in Iraq, 30 I.L.M. 567 (1991) (citing U.N. Doc. S/22320 (1991)) [hereinafter Requirements to End Hostilities]. See generally Peacefire: United Nations Imposes Harsh Peace Settlement on Iraq, Economist, Mar. 30, 1991, at 39 [hereinafter Peacefire].

(50.) Requirements to End Hostilities, supra note 49 (citing U.N. Doc. S/22342 (1991)). The decision, forwarded to the President of the Security Council and the Secretary-General, stated that the Command Council thereby "nullified all . . . decisions regarding Kuwait made subsequent to August 2, 1990, and abrogated and nullified all measures made thereunder."

(51.) Id. (citing U.N. Doc. S/22355 (1991)).

(52.) S.C. Res. 687, U.N. SCOR, 46th Sess., 2981st mtg., 1 16, U.N. Doc. S/RES/687 (1991), reprinted in 30 I.L.M. 846, 848 (1991).

(53.) Rebels Accuse Saddam of Using Napalm, Ft. Worth Star Telegram, Mar. 22, 1991, at 1, available in 1991 WL 3827333 [hereinafter Rebels]. The Supreme Assembly of the Islamic Revolution in Iraq, a coalition of groups opposing Saddam Hussein, reported various abuses committed by Iraqi troops, including the use of artillery, napalm, and chemical weapons against civilians. Id. The Assembly stated, for example, that Iraqi troops attacked the Shiites' most sacred city, Najaf, killing 15,000, and that troops killed large numbers in Kirkuk by using helicopters to drop acid on demonstrators. Id. The Assembly also stated that Iraqi special forces kidnapped Grand Ayatollah Abul-Hassan al-Khoei, the world's highest Shiite authority. Id.

(54.) S.C. Res. 687, supra note 52. Iraq had previously agreed to follow the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, 94 L.N.T.S. 2138 (1929), 14 I.L.M. 49 (1975); the Treaty on the Non-Proliferation of Nuclear Weapons, G.A. Res. 2373, 7 I.L.M. 809 (1968); and the Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, G.A. Res. 2826, Annex, 11 I.L.M. 309 (1972). The Security Council knew that, during the Gulf War, Iraq had repeatedly used, attempted to use, and threatened to use weapons in violation of these agreements. The Council was concerned about certain post-war activities that suggested that future violations were probable and imminent.

(55.) S.C. Res. 687, supra note 52. Resolution 687 was adopted 12-1 on April 3, 1991, with Cuba dissenting and Ecuador and Yemen abstaining.

(56.) U.N. to Lift Iraqi Food Embargo, Calgary Herald, Mar. 22, 1991, at A3, available in 1991 WL 755977 [hereinafter Food Embargo]. U.N. sources confirmed that the envoy's unreleased report noted:

[A]ll internal and external telephone systems have been destroyed and . . .

communication in Iraq is on a "person-to-person" basis. Government food

allocations are at 39 percent of the pre-sanctions level and the flow of

food through the private sector has been reduced to a "trickle." Bombardment

paralysed oil and electricity sectors almost entirely and transportation is

severely affected by lack of spare parts, tires and fuel.

Id.

(57.) Rebels, supra note 53.

(58.) U.N. Panel Takes Restrictions Off Food Imports for Iraq: `Pre-Industrial Age' Assessment of Nation Prompts the Action, Kan. City Star, Mar. 23, 1991, at A11, available in 1991 WL 3762899.

(59.) Food Embargo, supra note 56. Ahtisaari's report warned of possible epidemics of cholera, typhoid, meningitis, and diarrhea, as well as of the possibility of widespread famine. By the time the U.N. envoy visited Iraq, food prices had increased by 1000 percent, incomes had collapsed, reserves of food staples were depleted, and the grain harvest was threatened by a lack of irrigation, pesticides, and fertilizers. Id.

Ahtisaari reported that the necessities of modern life

have been destroyed or rendered tenuous; . . . [that] [i]t will be

difficult, if not impossible to remedy these immediate humanitarian needs

without dealing with the underlying need for energy. . . . Otherwise, food

that is imported cannot be preserved and distributed; water cannot be

purified; sewage cannot be pumped away and cleansed, crops cannot be

irrigated; medicaments cannot be conveyed where they are required.

Id. (60.) See A Tough U.N. Vote to Disarm Iraqis: Security Council Agrees to Impound Some Oil Revenue to Pay Reparations for War's Damage, S.F. Examiner, Apr. 3, 1991, at A1, available in 1991 WL 8929155 [hereinafter Tough U.N. Vote]. This 3700-word cease-fire agreement was the longest and most detailed resolution of this nature in Security Council history. Iraq's acceptance of it would lead to an automatic cease-fire and a lifting of the U.N.-imposed embargo Rejection would result in the embargo's remaining in effect. Kuwaiti ambassador Mohammad Abulhasan commented, "[Saddam had] better (accept it) if he wants to save his people from further catastrophe," but Iraqi ambassador Abdul Amir al-Anbari called it "very bad" and "unfair." Id. Anbari complained the resolutions went "beyond the mandate of the Security Council" and stated, "America and its allies should bear the full responsibility for their excesses. The new world order is the order of the American authority over all the world." Id.

(61.) S.C. Res. 687, supra note 52, at 849 (citing the Secretary-General's reports of March 20, 1991, U.N. Doc. S/22366, and March 28, 1991, U.N. Doc. S/22409).

(62.) Id. at 852-53.

(63.) Id.

(64.) Id. at 848. The Council noted its awareness of "the use by Iraq of ballistic missiles in unprovoked attacks and therefore of the need to take specific measures in regard to such missiles located in Iraq." Id.

(65.) Id. The Council was concerned by reports "in the hands of Member States that Iraq has attempted to acquire materials for a nuclear-weapons programme contrary to its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968." Id.

(66.) Id. at 849. The Council noted that the International Convention Against the Taking of Hostages categorizes all hostage-taking as a "manifestation[] of international terrorism," and chastised Iraq for taking hostages and threatening international terrorism during the Gulf War. Id.

(67.) Id.

(68.) Id. The Council referred Iraq to the Agreed Minutes Between the State of Kuwait and the Republic of Iraq Regarding the Restoration of Friendly Relations, Recognition, and Related Matters which both countries signed in 1963 and registered with the United Nations. In that document, Iraq and Kuwait agreed on their mutual boundary, which had been previously memorialized in correspondence between Iraq's prime minister and the ruler of Kuwait in 1932. Id.

(69.) Id. at 850.

(70.) Id.

(71.) Id. at 852. Two significant influences on the compensation system were the Iran-U.S. Claims Tribunal and American mass tort claims administration. Ken Myers, Gulf War Continuing for U.S. Lawyers, Nat'l L.J., June 20, 1994, at A1; see also Curt M. Dombek, The Twilight Zone of International Arbitration, 21 No. 4 Litig. 42 (1995).

The UNCC is to a certain degree influenced by the Iran-U.S. Claims Tribunal (IUCT). See Carlos Alzamora, The U.N. Compensation Commission. An Overview, in The United Nations Compensation Commission, supra note 12, at 3, 4-5 (noting it creators included people who had worked on the IUCT); Charles N. Brower, The Lessons of the Iran-United States Claims Tribunal: How May They Be Applied in the Case of Iraq?, 32 Va. J. Int'l L. 421 (1992); Gregory D. DiMeglio, Claims Against Iraq: The U.N. Compensation Commission and Other Remedies, 86 Am. Soc'y Int'l L. Proc. 477, 478 (1992) (recording the remarks of Richard B. Lillich and Charles N. Brower concerning the UNCC, as compared to the IUCT).

The IUCT, created in 1981 by agreement between Iran and the United States, is a bilateral commission charged with adjudicating private claims against Iran arising out of the Iranian revolution of 1979-80. Myers, supra. Plaintiffs include businesses that closed and individuals who fled when the Ayatollah Khomeini acceded to power. At that time, 45,000 Americans in Iran felt pressured to leave. Id. As of 1994, Iran had agreed to pay approximately 4000 claimants several billion dollars. Id. For a more extensive comparison of the two systems, see Charles N. grower, The Lessons of the Iran-U.S. Claims Tribunal Applied to Claims Against Iraq, in The United Nations Compensation Commission, supra note 12, at 15 (comparing the two systems regarding right of confrontation, susceptibility to political influences, working relationships of jurists, prioritization of claims, and funding).

In addition to relying on the model of the IUCT, the UNCC also adopted some features of American mass tort claims administration, including the notion that environmental damage is recoverable. Professor Francis E. McGovern, a leading authority on mass tort claims, advised the UNCC on these matters. Myers, supra; also McGovern, supra note 12, at 191-203.

(72.) See, e.g., The Dunning of Saddam Begins, Time, May 6, 1991, at 49 [hereinafter Dunning Begins]. By early May 1991, the United Nations had concluded that Iraq's oil revenues would be used to compensate the thousands of companies and individuals who had lost billions of dollars during Iraq's war on Kuwait. It remained unsettled what percentage of these future revenues would be used. The United States had frozen Iraqi assets totalling $1-1.5 billion, but neither Iraq nor its creditors could access those assets. Id.

As of May 6, 1991, the U.S. Treasury Department had registered approximately 1000 claims against Iraq. Id. These included a judgment of $64 million awarded by a U.S. district court to Consarc Corporation, a New Jersey furnace manufacturer. Id.

(73.) S.C. Res. 692, U.N. SCOR, 46th Sess., 2987th mtg., U.N. Doc. S/RES/692 (1991), reprinted in 30 I.L.M. 864 (1991). Resolution 692 was adopted May 20, 1991, 14-0, with Cuba abstaining.

(74.) See supra note 29 and accompanying text.

(75.) See supra note 46 and accompanying text.

(76.) See supra note 52 and accompanying text.

(77.) S.C. Res. 692, supra note 73.

(78.) Id.

(79.) Id.

(80.) Id.

(81.) David Mangan, Jr., U.S. May Ease Stand on Iraq Sanctions, Oil Daily, June 25, 1991, at 1, available in 1991 WL 4862321; see also John M. Goshko, U.S. Seeks Fast Payment from Iraq, Wash. Post, June 4, 1991, at A10 (reporting that the United States and Kuwait advocated a 50% contribution).

(82.) Mangan, supra note 81. As these negotiations continued, Iraq began its own quest to obtain access to its frozen assets. For example, Iraq asked Japan to unfreeze $140 million in oil payments blocked since the previous August. Id. The Iraqi ambassador to Japan announced in a press conference, "A tragedy is going on in my country. Ten[]s of thousands of children are in great danger of death and urgently need food and medicine." Id.

(83.) See U.S. Eases Stand on Iraqi Payments from Oil Revenues, Oil Daily, June 26, 1991, at 1, available in 1991 WL 4862322. Although the proposal provided for this percentage to be adjusted downward if market conditions warranted, U.S. State Department spokesperson Margaret Tutwiler said 30% "is the minimum level to ensure there will be sufficient resources available to begin the claims process." Id.

(84.) See S.C. Res. 705, U.N. SCOR. 46th Sess., 3004th mtg., [paragraphs] 1-2, U.N. Doc. S/RES/705 (1991), reprinted in 30 I.L.M. 1703, 1715 (1991). Resolution 705 was adopted August 15, 1991.

(85.) See id. (citing the May 30, 1991, letter from the Secretary-General to the President of the Security Council, S/22661).

(86.) See Report of the Secretary General on Claims Procedures Pursuant to Paragraph 19 of Security Council Resolution 687, U.N. SCOR, 46th Sess., 3004th mtg., U.N. Doc. S/22559 (1991), reprinted in 30 I.L.M. 1703, 1706 (1991) [hereinafter Report].

(87.) See id. at 1706-07.

(88.) See id. at 1707-10.

(89.) Id. at 1708. The Secretary-General noted that, because claimants generally will not appear before the UNCC and because Iraq will not be allowed to present defenses against claims, the UNCC must ensure that there is some element of due process in the system. See id. The commissioners, described below, are intended to provide this element.

This structure contrasts with the IUCT, at which plaintiffs' lawyers presented their cases to panels consisting of an American jurist, an Iranian jurist, and a chairperson from a third country. Dombek, supra note 71, at 42. Dombek notes that "[w]ild stories abound. from these proceedings, "including rumors that sometimes successful cross-examinations were followed not by a redirect, but instead by threats of violence against the cross examiner." Id; see also Townsend, supra note 42, at 978-79. Dombek states that the United States' 10 years of experience with the IUCT led it to lobby for a U.N.S.C.-controlled administrative commission, rather than a judicial body that Iraq could derail. Dombek, supra He notes also that the United States, Kuwait, and Saudi Arabia raised $57 million in seed money to establish the UNCC. Id.

(90.) U.N. Compensation Comm'n Governing Council., 10th mtg., Annex 2, U.N. Doc. S/22885 (1991), reprinted in 30 I.L.M. 1703, 1712 (1991) (annex to August 2, 1991, letter from the President of the Governing Council to the President of the Security Council) [hereinafter Annex 2]. The system adopted departed from major elements of conventional international claims law and practice. Critics argued the system was flawed because it was "imposed," was a political rather than a judicial body, and exceeded the legitimate power of the Security Council. For a discussion of these concerns, see John R. Crook, The U.N.C.C. and its Critics: Is Iraq Entitled to Judicial Due Process, in The United Nations Compensation Commission, supra note 12, at 77. For a discussion of the origin and structure of the UNCC, see DiMeglio, supra note 71, at 482 (recording the remarks of Ronald J. Bettauer, Assistant Legal Adviser, U.S. Dept. of State).

(91.) See Report, supra note 86, at 1706.

(92.) Id. at 1707.

(93.) Id. at 1706-07.

(94.) Id. at 1707.

(95.) See id.

(96.) Id.

(97.) International claims commissions have been notoriously slow in settling claims. See, e.g., Bederman, 1994, supra note 12, at 15. For example, one World War Two commission accepted U.S. internment claims until February 24, 1997 (sic). ABC Evening News (television broadcast, Jack Smith reporting, Feb. 23, 1997).

In designing the UNCC, the U.N. Secretary-General was concerned with improving the model provided by the IUCT, formed in 1981. Dunning Begins, supra note 72. There, large institutional claims had been processed first, and after 10 years many claims remained outstanding, although $5 billion had been paid. Id.

Iran generated lengthy delays by defending against the claims asserted. See, e.g., Myers, supra note 71. The UNCC's streamlined procedures do not afford Iraq a comparable right. See supra note 89.

(98.) The "priority of payment" question was contentious from the Governing Council's first session. See Ronald J. Bettauer, The United Nations Compensation Commission-Developments Since October, 1992, 89 Am. J. Int'l L. L. 416, 420 (1995). The decision to pay individuals first contrasts with the IUCT's prioritization. That tribunal paid banks and corporations first, then considered the claims of individuals. Myers, supra note 71.

Some observers applaud the UNCC approach. For example, Professor Bederman, former Legal Assistant at the IUCT, has called the UNCC approach to categorizing claims "extraordinarily sophisticated" and noted that "some commentators have put much stock in this process of sorting claims, and I am inclined to concur that it is a notable effort ...." Bederman, 1994, supra note 12, at 22-23 (citations omitted). Professor Richard B. Lillich of the University of Virginia commented: "[The UNCC] obviously decided they weren't going to make that same mistake and turned it around.... That's the way it should be. [Businesses and banks] took the risk. That's the cost of doing business.. Myers, supra note 71.

Others, however, criticize it. Some see it as a "calculated public relations gesture," Townsend, supra note 42, at 1005, whereas others view it as denying justice for the primary victims: "[Processing individual claims first] has delayed the processing of government claims representing a large part of the damage suffered by the Kuwaiti people, the principal victims of Iraqi aggression for whose benefit the U.N.C.C. presumably was constituted." Dombek, supra note 71, at 62.

(99.) See Annex 2, supra note 90, at 1713-14.

(100.) See id. at 1713. For a discussion of claimants' eligibility and concerns about "double-clipping," see Bederman, 1995, supra note 12, at 296-304.

(101.) See Annex 2, supra note 90, at 1714. The U.S. process is outlined by Marian Nash, Office of the Legal Adviser, Department of State, in Claims Against Iraq: United Nations Compensation Commission, 86 Am. J. Int'l L. 346 (1992).

(102.) See Annex 2, supra note 90, at 1714. Some observers have criticized the relaxed evidentiary standard applied to the expedited claims. See, e.g., Bederman, 1994, supra note 12, at 23; Dombek, supra note 71, at 62.

(103.) See Annex 2, supra note 90, at 1714. The UNCC had to decide whether countries could submit claims on behalf of non-nationals to whom they had extended protection. See Bederman, 1994, supra note 12, at 30-31. It allowed these submissions at each government's discretion. See, e.g., DiMeglio, supra note 71, at 485 (quoting Bettauer); Nash, supra note 101, at 346. It also had to decide whether Iraqis with dual citizenship could submit claims, and it ultimately allowed them to do so. Townsend, supra note 42, at 1000-03.

(104.) See Annex 2, supra note 90, at 1713.

(105.) See id. The UNCC limited the "processing fees" governments could deduct from award payments and required governments to distribute funds to claimants within six months of receiving them. The UNCC also required governments to report their methods for allocating the funds and their progress in doing so. See Bettauer, supra note 98, at 421.

(106.) See Annex 2, supra note 90, at 1713.

(107.) See id. Claims submitted under Category "A" could not be resubmitted for a greater amount in any category. If the loss in question was greater than $2500 and could be documented, it could be submitted under Category "C" or other appropriate categories. See id.

(108.) See id. If the actual loss resulting from the death or injury was greater than $2500, payments under Category "B" are to be considered interim relief, and claims for additional relief may be submitted under Category "C" or other appropriate categories. Id.

Additionally, Category "A" and "B" payments may be made cumulatively, where more than one situation applies to a particular person, but no more than $10,000 will be paid for death and no more than $5000 for departure with respect to any one family (consisting of any person and his or her spouse, children, and parents). Id.

(109.) Id. For an extended discussion of the "C. claim process, see Christopher S. Gibson, Mass Claims Processing: Techniques for Processing Over 400, 000 Claims for Individual Loss at the United Nations Compensation Commission, in The United Nations Compensation Commission, supra note 12, at 155, 167-84.

(110.) See Annex 2, supra note 90, at 1713. Evidence required is the reasonable minimum appropriate under the circumstances, and a lesser degree of evidence is ordinarily required for smaller claims, such as those less than $20,000. Id.

(111.) See Criteria for Additional Categories of Claims, U.N. Compensation Comm'n, 3d Sess., 18th mtg., Annex, U.N. Doc. S/23765 (1992), reprinted in 31 I.L.M. 1045 (1992).

(112.) Annex 2, supra note 90, at 1713; see also Marion Leich, Claims Against Iraq: United Nations Compensation Commission, 86 Am. J. Int'l L. 113 (1992) (reciting claims criteria and discussing various Security Council resolutions through October 1991).

(113.) See David D. Caron, Introductory Note, United Nations Compensation Commission: Report with Decisions of the Governing Council, 31 I.L.M. 1009 (1992); see also Crook, supra note 12, at 146 (reviewing the development of the UNCC and its early decisions, with an emphasis on funding problems).

(114.) See Caron, supra note 113, at 1010-12.

(115.) See U.N. Compensation Commission: 380,000 Claims Filed So Far, 8 NO. 2 Mealey's Int'l Arb. Rep. 22 (1993) thereinafter 380,000 Claims].

(116.) See $264.3 Million Corp. Claim Filed with Compensation Commission, 8 NO. 3 Mealey's Int'l Arb. Rep. 21 (1993). This included the UNCC'S first corporate claim, Sled by Turkey's Enka Construction for $264.3 million. Id. Enka was in the process of constructing the world's seventh largest hydroelectric dam in Kurdistan when the Gulf War began. At the end of the war, the Kurds seized and sold tens of millions of dollars of Enka's equipment. Id

(117.) See 380, 000 Claims, supra note 115, at 22.

(118.) Status Report on Iraq's Non-Compliance with U.N. Resolutions, Apr. 5, 1993, U.S. Dep't St. Dispatch 194, available in 1993 WL 2977363. President Clinton wrote to Congress that

[t]he Iraqi government. . . has for months maintained a full embargo

against its northern provinces, in violation of U.N. Security Council

Resolution 688, and has acted to distribute humanitarian supplies only to

its supporters and to the military. It has also refused to utilize the

opportunity under Resolutions 706 and 712 to sell up to $1.6 billion in oil,

proceeds from which could be used by Iraq to purchase [humanitarian]

supplies for essential civilian needs.

Id.

(119.) See Claims to U.N. Compensation Commission Hit 920,000, 8 No. 8 Mealey's Int'l Arb. Rep. 12 (1993) |hereinafter Claims Hit 920,0001. Most claims were on behalf of individuals, a majority were Class "A." Id.

(120.) Id. At this time, the UNCC was preparing a special computer program to process the "A"' claims and was resolving problems caused by some governments' failure to follow correct claims procedures. For example, "A" claims were to be submitted on computer diskettes, but some governments had submitted them on paper. Id.

(121.) Id.

(122.) See Claims to U.N. Compensation Commission Top One Million, 8 No. 10 Mealey's Int'l Arb. Rep. 10 (1993).

(123.) Id. The extension to January 1, 1994 applied only to countries that had already requested it. "D" claims were also due on January 1, 1994, with "E" and "F claims due on April 1, 1994 and May 1, 1994, respectively. Id.

(124.) These 2.3 million claims totalled $50 billion in damages, with total claims of $100 billion expected. See Jeffrey A. Jannuzzo, U.N. Clears Compensation for Gulf War Victims, Times (London), Apr. 12, 1994, available in 1994 WL 9164007.

(125.) See Compensation Commission: 2.3 Million Claims Filed, 9 No. 1 Mealey's Int'l Arb. Rep. 8 (1994) [hereinafter 2.3 Million Claims]. Although the filing deadlines had passed for "A," "B," "C," and "D" claims, claims continued to be filed. See id. By January, claims in each category were as follows: 850,000 "A" claims; 403,000 "B" claims; 230,000 "C" claims; 7000 "D" claims; 2000 "E" claims; and 20 "F claims. Id. One of the "C" claims was filed by Egypt on behalf of 1.2 million displaced Egyptian workers. Id. The "Egyptian Workers" Claim,' as it came to be known, is sometimes counted as one claim, as in Mealey's categorical breakdown, and sometimes counted as 1.2 million claims, as in Mealey's headline. Id.

(126.) One reporter observed: "It is 10 p.m. on a Sunday in Geneva. At a building out near the airport, the lights are still on. The staff of the United Nation's [sic] Gulf War claims commission is still at work. The overtime budget has been exhausted, but the staff are working late anyway. Their sense of urgency, even pleasure, resembles a political campaign rather than an international bureaucracy. People will be there at 1 o'clock in the morning." Jannuzzo, supra note 124.

(127.) See id The UNCC set an internal deadline of 120 days within which it was to decide each submission. Id.

(128.) See U.N. Commission Makes First Payments for Serious Injuries, 9 No 6 Mealey's Int'l Arb. Rep. 11 (1994) [hereinafter First Payments]. At its May 26 meeting, the Governing Council approved 670 awards recommended in the commissioners' April 14 report. Id. The Council also approved the commissioners' recommendations that 307 claims be denied and 88 claims be transferred to Category "C." Id.

(129.) See id The UNCC paid $2,747,500 via electronic transfer to receiving agencies in 16 countries. Payments by country were as follows: Australia $2500; China-$5000; Slovak Republic-$2500; France-$52,500; Iran $2500; Jordan-$982,500; Kenya-$2500; Kuwait-$1,397,500; Mauritius-$2500; Pakistan--22,500; Poland-$10,000; Sri Lanka-- $110,000; Thailand--$10,000; U.K.--$107,500; U.S.-$35,000; Yugoslavia-$2500. Id.; see also U.N. Compensates First Victims of Iraqi Invasion, 40 No. 24 Arab. Press Serv. Diplomat Rec. (1994), available in 1994 WL 2226248 [hereinafter First Victims]. Beneficiaries were all Category "B" victims who had been wounded by Iraqi actions or had lost a close relative. Payments ranged from as much as $2500 per individual to as much as $10,000 per family. See First Victims, supra.

(130.) See UNCC Approves Payment of Serious Injury Claims, 10 No. 10 Mealey's Int'l Arb. Rep. 15 (1995) [hereinafter UNCC Approves Payment]. On October 12, the Governing Council approved payment of $8,252,500 to satisfy 2577 previously approved Category "B" claims.

(131.) See supra text accompanying note 16.

(132.) See supra text accompanying note 48.

(133.) See supra text accompanying notes 65, 70.

(134.) See supra text accompanying note 48.

(135.) See supra text accompanying notes 47, 71, 77.

(136.) Some observers were critical of the U.N. post-war treatment of Iraq, analogizing it with the Allies' treatment of Germany after World War One. See, e.g., Garmise, supra note 12, at 84243. Tough U.N. Vote, supra note 60 ("The resolution places an unprecedented economic and military stranglehold on Iraq, prompting some critics to compare it with the draconian provisions of the Treaty of Versailles . . . .").

Others, however, insisted the situations were not analogous. As Jannuzzo, an international lawyer who has practiced in the Middle East argued:

Though a parallel is often drawn with the German people's burdens after

World War 1, Iraq should be considered differently. The allies imposed

obligations of the Germans that could be met only by taxing their labor.

But Iraq has a huge pool of literally liquid assets under its deserts that

can be garnished to pay the injured.

Garnishing oil reserves is morally different from taxing the labor of a

nation; it is more closely analogous to seizing money in bank accounts.

Jeffrey A. Jannuzzo, War Reparations Need Not Bleed Iraq's People Dry, Wall St. J., Mar. 12, 1991, at A18.

Jannuzzo advocated a system much like the one ultimately adopted. He suggested garnishing a percentage of oil revenues that would balance Iraq's need to rebuild with the needs of the injured. Specifically, Jannuzzo suggested garnishing approximately 50% of each shipment of oil reserves, because that figure approximated the percentage Iraq had been spending on its military in the past decade and would leave Iraq the same percentage of oil revenue historically available for civilian uses. Id.

(137.) See supra text accompanying notes 72-80.

(138.) The embargo might have been an effective strategy against a rational leader, but Hussein was not such a man. The founder of the CIA's center for analyzing the psychology of world leaders argued that Hussein "exhibits a well-documented syndrome known as malignant narcissism . . . ," a syndrome that includes "overarching arrogance and ambition." Beyer, supra note 25 (citing Dr. Jerrold Post). One psychologist observed, "Saddam is not going to give up . . . . The No. 1 thing for him is to maintain his grand sense of self . . . ." Id. (quoting Dr. Vanik Volkan, director of the Center for the Study of the Mind and Human Interaction at the University of Virginia Medical School).

Hussein's spending habits and legal decrees align with a diagnosis of malignant narcissism. When Hussein rose to power in 1979, Iraq was one of the Middle East's most prosperous economies; during the 1980s he plunged it into bankruptcy. Peter Furhman, Robbin' Hood If the World is at Last Rid of Saddam Hussein, Iraqi Will Be Among Chief Beneficiaries, Forbes, Mar. 18, 1991, at 43. While the gross domestic product fell by 75% and Iraq became a net importer of food, Hussein spent more than $200 billion on the military. Id. In addition, Hussein spent large sums celebrating himself:

[I]n the early 1980s, Saddam Hussein ordered all but the highest layer of

the ruins [of Nebuchadnezzar's hanging gardens! covered over again [after

the Germans and British had excavated them]. He built his own replica of

the king's palace atop the old one, laying bricks engraved with his name

alongside those with ancient inscriptions. Then he built a modern palace

overlooking the site. In case anyone still missed the point, the title of a

recent festival spelled it out: "Babylon: From Nebuchadnezzar to

Saddam." . . .

Modern Iraq truly is the Kingdom of Saddam: from the cramped homes

of Saddam City, to the spinning restaurant atop Saddam Tower, to exhibits at

Saddam Center for the Arts. Saddam has raised up a universe of monuments to

himself, from towering bronze statues to thousands of bit/board portraits.

Mark Dennis, Saddam's Nightmare, Newsweek, Mar. 16, 1998 at 40,41.

In 1986, Hussein announced that the death penalty would be imposed on those who insulted him. U.N. Investigator Says Iraq Holds Own People Hostage; Hussein Won't Sell Oil as Long as U.N. Insists on Monitoring Trade, Balt. Sun, Nov. 25, 1995, at 7A [hereinafter U.N. Investigator]. In 1994, he announced that amputations and brandings would be imposed for petty theft and desertion. Id.

Despite the destruction of his country's infrastructure and the suffering of his people, Hussein built 15 palaces in the five years following the war. Nicholas Burns, U.S. State Department Briefing (June 5, 1996), Fed. News Serv. Wash. Package, June 5, 1996, available in 1996 WL 5794299. When a reporter suggested at a State Department briefing that Hussein was "just a wimp" compared to other palace-builders, a spokesperson Burns replied, "He's not really a wimp. . . . [but] he's certainly evil." Id. (The palace-building may be more practical that it long appeared; recent commentators suggest the "palaces" are in fact factories for making biological weapons. See, e.g., Richard Haas, Interview with Katie Couric, Today Show (NBC television broadcast, Jan. 15, 1998).

(139.) See, e.g., Turning the Screw: The Effect of Trade Sanctions on Iraqi Society, Middle E., May 1, 1995, at 6 [hereinafter Turning the Screw] (noting the humanitarian situation is "disastrous" while the embargo seems to have achieved little regarding Iraqi disarmament or recognition of Kuwait, and urging the Security Council "to reflect seriously on whether the price paid by ordinary people is not too high for what has been achieved").

(140.) See, e.g., Richard C. Reuben, Model Tribunal Plagued by Cash Woes: Body Hearing Claims Against Iraq Ambitious but Underfunded, 81 A.B.A., J., Feb. 1995, at 30; Letter from Pres. William J. Clinton to the Speaker of the House of Reps. & the Pres. pro tempore of the Senate, M2 Presswire, Jan. 5, 1996, available in 1996 WL 7890823; Letter from Pres. Bill Clinton to the Speaker of the House of Reps. &the Pres. pro tempore of the Senate, M2 Presswire, May 7, 1996, available in 1996 WL 10341847.

(141.) The United Nations never completely barred oil sales from Iraq to Jordan. See Conlon, supra note 16, at 109.

(142.) By mid-1993, even the commodities market had stopped reacting to periodic speculation that Iraqi oil sales might resume. UN/Iraqi Oil Sales Talks to Resume Next Week, 71 No. 126 Platt's Oilgram Price Rep. 1 (1993) ("It's just the same old song and dance," said a New York trader, adding that the market was weary of studying the protracted and detailed UN/Iraq dispute over terms for interim oil sales.").

(143.) Zuckerman, supra note 28.

(144.) Is War Receding?, Economist, Dec. 8, 1990, at 45 (Iraq-Kuwait Crisis, 1990). When the UNCC made its first payments in 1994, a press report noted without further comment "The compensation fund draws its money from Iraqi capital abroad frozen under the U.N. embargo imposed at the end of the war." First Victims, supra note 129. The notion of garnishing oil revenues to pay these claims had faded from popular consciousness.

(145.) Dunning Begins, supra note 72. By one count, Iraq had had three to four billion dollars in foreign banks when the funds were frozen in August 1990. Most of those funds were in U.S. banks. United Nations: Part of Iraq's Frozen Assets Appropriated, Inter Press Serv. Oct. 2, 1992, available in 1992 WL 2488762 [hereinafter Frozen Assets]. Another source estimated the frozen assets at $4-5 billion, with $2 billion of that frozen in the United States and the United Kingdom and a substantial additional amount in Switzerland's Bank of International Settlements. DiMeglio, supra note 71, at 480 (recording Judge grower's presentation, International Law: On the Edge of Credibility in the Wake of Iraq's Invasion and Occupation of Kuwait) .

(146.) The United States led the effort to develop the asset-seizure plan that resulted in Resolution 778. Ronald J. Bettauer, Establishment of the United Nations Compensation Commission. The U.S. Government Perspective, in The United Nations Compensation Commission, supra note 12, at 29, 35. Additionally, the United States pledged to match all contributions into the escrow account up to $200 million and transferred $200 million in frozen Iraqi assets to a holding account at the New York Federal Reserve Bank for that purpose. Id

(147.) Iraq's desire to reach these assets led it to ask Japan, in June 1991, to unfreeze $140 million in oil payments blocked since the August invasion of Kuwait. Mangan, supra note 81.

(148.) The Bill Comes Due, Time, Oct. 12, 1992, at 29. Iraq became unwilling to pursue this option when the United Nations said it would have to hand e all the money such sales would earn. Id.

(149.) This resolution, sponsored by Britain, France, Russia, the United States, Hungary, and Japan, was approved 14-0, with China abstaining. Frozen Assets, supra note 145. Jeffrey Jannuzzo had advocated seizing those assets since the end of the war. See Jannuzzo, supra note 136.

(150.) See 380,000 Claims, supra note 115; see also Frozen Assets, supra note 145 (noting the United States considered the Resolution "a reasonable and proportionate response to Iraq's intransigence" and quoting U.S. Ambassador Edward Perkins as saying, "Iraq's refusal to accept resolutions 706 and 712 has prevented its own population from receiving humanitarian relief. . .[. We] believe that the Security Council was right in waiting no longer for Iraq to implement these resolutions"; also noting China viewed the measure as extraordinary and unnecessary, considering Iraq's willingness to negotiate, and quoting Chinese Ambassador Li Daoyu as stating that "we should also like to point out that the seizing of a country's frozen assets abroad is a matter that concerns the sovereignty of that country and involves complicated legal implications.").

(151.) See 380,000 Claims, supra note 115. The UNCC's budget included staffing and the purchase of computer equipment. See also Townsend supra note 42, at 1013, n.289 (citing Ma Xiaolin, Compensation Troublesome Issue Left Over by Gulf War, Xinhua News Agency, July 28, 1995, available in LEXIS, News Library, WIRES File) (noting the UNCC's 1996 budget was $22.9 million, an 18% reduction from its 1995 budget); UNCC Beginning to Receive Proceeds from Iraqi Oil Sales, 12 No. 1 Mealey's Int'l Arb. Rep. 16 (1997) (noting the annual UNCC budget is between $20-25 million). By 1997, the annual budget had risen again, to $30 million. Future Award Payments from UNCC Compensation Fund are in Doubt, 12 No. 7 Mealey's Int'l Arb. Rep. 20 (1997).

(152.) See Claims Hit 920,000, supra note 119.

(153.) See 2.3 Million Claims, supra note 125.

(154.) U.N. Compensation Commission Approves Awards, Tackles Difficult Claims, 6 World Arb. & Mediation Rep. 74, 75 (1995) [hereinafter Difficult Claims].

(155.) Many such claims were filed around the world. For example, in the United States, the Treasury Department had registered 1000 U.S. claims against Iraq by May 1991. Dunning Begins, supra note 72. One year later, that number had risen to 1400 claims totalling "`billions of dollars' (the Treasury Department [would] not be more specific)." DiMeglio, supra note 71, at 488 (quoting Daniel B. Magraw, Associate General Counsel for International Activities at the U.S. Environmental Protection Agency).

These claims were making their way through civil courts as the UNCC continued its work. In the most famous U.S. case, Consarc Corporation, a New Jersey manufacturer, sued Iraq for fraud and breach of contract. In this case, Iraq had ordered furnaces, stating they would be used to make artificial limbs; they were actually intended to make nuclear weapons and missiles. When the intended use was discovered by U.S. authorities, President Bush stopped shipment of the furnaces. DiMeglio, supra note 71, at 482 (quoting grower).

In that case, Consarc was awarded $64.1 minion in damages. Id. The Treasury Department refused to release funds to pay this award, stating, "We prefer to freeze, not seize," Dunning Begins, supra note 72. The government moved to have this judgment vacated. DiMeglio, supra note 71, at 482. The judge did not vacate the judgment, but declined to decide whether Consarc could recover the judgment from funds frozen at the Bank of New York. Id. at 482 (quoting grower), at 488 (quoting Magraw). Similarly, in First City Texas-Houston v. Rafidain Bank, the judgment provided that there could be no attachment without further action by the court. Id. at 488.

In contrast, the United Kingdom has begun distributing Iraqi funds to pay U.K. judgments on a first-come, first-serve basis. Id.

(156.) Dunning Begins, supra note 72. The U.S. contribution of $92 million was the only substantial exception. See also Jannuzzo, supra note 124 (noting that countries holding Iraqi money have declined to loan it to the United Nations, and quoting Ambassador Carlos Alzamora, Executive Secretary of the UNCC, as saying: "We trust that the governments holding the funds to which the compensation fund is entitled will allow the commission to honour on time its first commitments to claimants all over the world.").

(157.) Difficult Claims, supra note 154, at 75. The United States loaned the United Nations $200 million in Iraqi assets, from which the UNCC paid $2.7 million in awards. Id. Most governments had refused to comply or had failed to respond to the voluntary U.N. resolution calling for the release of Iraqi assets. Id.; see also Townsend, supra note 42, at 1023, n.357 (noting that 62 countries had responded to the Secretary-General's request by April 30, 1993, 58 of which denied having frozen Iraqi assets).

(158.) Although the UNCC anticipated being able to pay $4 million in claims in May 1994, it was still short more than $150 million of the $200 million it hoped to award the following fall. Patrick Crow, Tracking Iraq's Oil Money, Oil Gas J., May 23, 1994, at 33.

(159.) Id.

(160.) Id. Wavering resolve had also been a problem immediately before the Gulf War. The British, like the Americans, advocated strict adherence to the fall 1990 sanctions. See Back to the Bulldog Stuff: Britain's Disproportionate Contribution to the Allied Forces in the Gulf is a Reminder of Much that Sets the Country Apart from its European Neighbors, Economist, Jan. 19, 1991, at 51; Into the Breach, Economist, Jan. 19, 1991, at 52 (recounting the House of Commons debate on the Iraq-Kuwait situation). France, Italy, Spain, Germany, Greece, and the Arab alliance seemed less committed to the anti-Iraq coalition. Michael S. Serrill, Closing Ranks Behind the Yanks: When the Bombs Started Flying, the British, French, and Italians were there, Time, Jan. 28, 1991, at 67.

(161.) Serrill, supra note 160; see also Beyer, supra note 25. France's questionable commitment to U.N. efforts against Iraq had surfaced in 1990. Less than two months after the U.N. embargo was imposed, French President Francois Mitterand suggested offering Hussein a face-saving resolution, stating that if Iraq were to promise withdrawal from Kuwait, "everything would be possible. . . ." Beyer, supra note 25. One U.S. official was astounded at Mitterrand's comments, which contradicted the U.S. position that Iraq must leave Kuwait without preconditions. Id.

Then, in January 1991, as allied forces prepared to attack Iraq, Mitterrand proposed to Iraq another compromise, which would protect French interests in the Arab world. Serrill, supra note 160. Mitterrand's continued pursuit of a separate peace plan irked the United States and Britain, but ultimately it mattered little, as Iraq rejected it. Id.

As soon as the war ended, France voiced self-interested concern over "who would be paid first, Iraq's pre-war creditors or those damaged by the war." Peacefire, supra note 49. It was soon proposed that pre-war creditors should be paid from oil sales and war damage claimants from Iraq's frozen assets. Id.

(162.) Crow, supra note 158.

(163.) See, e.g., Iraq Claims Legislation. Hearings on H.R. 3221 d; S. 1401 Before the Int'l Econ. Policy, Trade, Oceans, and Envtl. Subcomm. of the Senate Foreign Relations Comm., Fed. News Serv. Wash. Package, Sept. 21, 1994, available in 1994 WL 8371276. The Clinton plan, embodied in a House-passed bill, provided that the U.S. government had first priority in recovering a portion of its losses; Gulf War veterans ha