by Rhodri C. Williams
I recently wrote an introductory note for publication in International Legal Materials related to a set of rules of procedure adopted last year by the UN Register of Damage (UNRoD). The Register was set up in order to develop a record of all damages resulting from the construction of Israel’s “security fence”, referred to by the UN General Assembly as the “Wall”, in the Occupied Palestinian Territory. As such, it represents an interesting development both in the attempt to resolve the Middle East conflict and in the evolution of institutional responses to mass claims for reparations.
The proper name of the final version of this article is “Introductory Note to the United Nations Register of Damage (UNRoD) Rules and Regulations Governing the Registration of Claims” and it was published in its final version in the Volume 49 No. 2 issue of International Legal Materials. The version reproduced below is an edited draft.
On June 16, 2009, the Board of the United Nations Register of Damage (UNRoD) issued a set of “Rules and Regulations Governing the Registration of Claims” (Rules). The Office of the UNRoD is a subsidiary organ of the General Assembly operating under the administrative authority of the Secretary General, with a mandate to develop “a record, in documentary form, of the damage caused to all natural and legal persons concerned as a result of the construction of the wall by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem.”[i]
The issuance of the Rules comes over two years after the January 2007 establishment of the Office of the UNRoD by UN General Assembly Resolution ES-10/17[ii] and the subsequent May 2007 appointment by the Secretary General of the Office’s Board.[iii] The length of time it has taken to issue the Rules, combined with the fact that they do not fully resolve a number of open questions surrounding the scope and nature of the registration process, is likely to fuel concerns about the effectiveness of the Office. On the other hand, the fact that the Rules have been issued at all confirms that the UNRoD is evolving from a recommendation into a real institution. This development will inevitably influence not only the ongoing efforts to resolve the conflict in the Middle East, but also broader debates related to the role of reparations for individual victims of international law violations in the context of protracted peace negotiations.
I. Background: The ICJ Advisory Opinion and the Establishment of the UNRoD
The UN has been the scene of debates over Israel’s role as an occupying Power ever since its conquest of Palestinian territories, including the West Bank and East Jerusalem, in the 1967 Six Day War. Although the UN Security Council affirmed the inadmissibility of territorial acquisition by war in November 1967[iv] and condemned Israel’s annexation of East Jerusalem in 1980,[v] its failure to adopt draft resolutions concerning Israeli settlements in the Occupied Palestinian Territories in 1997 led to the issue being taken up by the General Assembly. The resulting Tenth Emergency Special Session of the Assembly has convened periodically since April 1997.[vi]
In 2002, the Government of Israel responded to a series of Palestinian suicide bombings by approving the construction of a 723-kilometer barrier for the stated purpose of preventing suicide bombers from entering Israel from the West Bank.[vii] The barrier, referred to in Israel as a “security fence” and by the UN General Assembly as a “wall”, caused immediate controversy as it became clear that much of its route would extend into the West Bank, enclosing large Israeli settlements and fragmenting Palestinian communities. After the UN Security Council failed to act on draft resolutions condemning the construction of the Wall or to reference the Wall in a Resolution endorsing the “road map” negotiation process,[viii] the Tenth Emergency Special Session of the General Assembly referred the matter in December 2003 to the International Court of Justice (ICJ) for an Advisory Opinion.[ix]
In July 2004, the ICJ found that the construction of the Wall largely within the Occupied Palestinian Territories gave rise to breaches of international law and engaged Israel’s responsibility to cease construction of the Wall, dismantle existing sections located in the West Bank and East Jerusalem, and provide reparations, including restitution of confiscated property and compensation for damages incurred.[x] The Court also found that all States were obliged not to recognize or facilitate the illegal situation resulting from the Wall’s construction, and urged the UN to “consider what further action is required to bring about an end the [sic.] illegal situation resulting from the construction of the wall and the associated regime, taking account of the present Advisory Opinion.”[xi] Although the ICJ Opinion is not legally binding as such, it does provide an authoritative interpretation of the international law framework applicable to the construction of the Wall.
In August 2004, the Tenth Emergency Special Session of the General Assembly adopted Resolution ES-10/15, which acknowledged the ICJ Advisory Opinion, demanded Israeli compliance, and set out to fulfill the ICJ’s appeal to the UN to consider further action by requesting the Secretary General to “establish a register of damage caused to all natural or legal persons concerned . . . .”[xii] The Secretary General responded in January 2005 with a letter proposing a legal and institutional framework for a registry to establish and maintain the Register of damage.[xiii] After considerable delay, the Secretary General formally reported back to the Assembly in October 2006 with a modified framework for the establishment of the Office of the UNRoD.[xiv] This framework was adopted by the General Assembly in January 2007 in Resolution ES-10/17, which established the UNRoD and requested the Secretary General to appoint its Board and Executive Director and provide the necessary staff and facilities.[xv] The Board was duly appointed in May 2007,[xvi] issued its first progress report in April 2009,[xvii] and adopted its Rules two months later.
II. The Rules of the UNRoD in Context
The claims registration process foreseen in Resolution ES-10/17 is constrained in a number of respects and imprecisely defined in others, giving rise to concerns on the part of some observers that it could, in the worst case, become a means for the international community to be seen as acting on Palestinians’ behalf without bringing about meaningful redress for the harms they have suffered as a result of the construction of the Wall.[xviii] Although some constraints, such as Israel’s refusal to cooperate, are clearly beyond the control of the UNRoD Office, ambiguities in the UNRoD mandate can more clearly be resolved through interpretation by the Board. Through the issuance of the Rules, the Board has now clarified its stance on a number of these points.
One unclear area has been the emphasis to be placed on UNRoD’s outreach obligations,[xix] with criticism focusing on a perceived lack of transparency, public information and consultation in the design and implementation of the registration process to date.[xx] The Rules are clearly responsive to this point. They contain a number of specific undertakings related to outreach, liaison with local authorities and civil society, awareness campaigns, and technical assistance to claimants.[xxi] The Rules also provide that local “authorities or bodies” may be authorized to assist in collecting claims,[xxii] but do not go as far as some observers have recommended in mandating such bodies to carry out local verification of claimed damages.[xxiii]
Another area of debate relates to the type of damages that can be claimed, and particularly calls for non-material damages, such as the effect of the Wall on psychosocial wellbeing and family life, to be registered.[xxiv] However, while the ICJ decision and the General Assembly resolution establishing the UNRoD are ambiguous on this point,[xxv] the Rules follow the Secretary General’s 2006 report in explicitly limiting eligible claims to those alleging “material” damages.[xxvi] While the types of material damages identified in the Advisory Opinion are nevertheless very wide,[xxvii] the Rules do not take up the Secretary General’s suggestion that they be “elaborated in greater detail”[xxviii] but instead effectively simplify them by breaking them down into six categories.[xxix]
This approach may facilitate expansive case-by-case interpretation, provided that alleged damages fit into existing categories. For example, eventual claims related to feared Israeli confiscation of land left idle as a result of restricted passage through the Wall could be taken up, at the discretion of the Board, under the “agricultural”’ category.[xxx] However, the apparently closed-ended nature of the list of categories implies the preclusion of less predictable damages, such as injuries and deaths resulting from allegedly disproportionate Israeli responses to protests against the Wall.[xxxi] Concerns that collective claims could be excluded[xxxii] may be somewhat allayed by the Rules’ broad definition of “persons” entitled to file claims.[xxxiii]
A third area of ambiguity relates to the scope of activities the UNRoD should engage in. The Secretary General’s Report clearly limited the remit of the Office to a “technical, fact-finding process” involving receipt of statements of alleged damage and determination of their eligibility for inclusion in the Register.[xxxiv] The Report clarified that the Office was not a compensation commission, did not enjoy judicial or quasi-judicial status, and was not authorized to undertake claims resolution or “evaluation or assessment of the loss or damage claimed.”[xxxv] However, the Secretary General did leave open the possibility that “a decision when and if it would be appropriate for the office . . . to engage in a process of verifying the fact and extent of the damage would be taken at a subsequent stage.”[xxxvi]
Resolution ES-10/17 accords with the Secretary General’s Report in that it defines the UNRoD solely as a “record, in documentary form, of . . . damage” caused by the Wall.[xxxvii] However, in contrast to the Report, the Resolution does not explicitly rule out further activities and authorizes the Board to “engage, periodically and as deemed necessary” technical experts in fields including assessment and compensation.[xxxviii] This provision may imply a degree of discretion on the Board’s part to take up proposals to engage more actively in verification activities, or even standardized valuation of claims and the development of “specific criteria” for a future restitution program.[xxxix] However, the Rules limit themselves strictly to the receipt of claims and determinations of their eligibility for inclusion in the Register. Indeed, while the Rules require verification “that the claimed damage was in fact sustained,” the onus is placed on claimants themselves.[xl]
As a final point, the Rules contain a number of provisions that may raise issues in light of the obligation of the Office to respect the “principles of due process of law”,[xli] bearing in mind emerging understandings of the need to develop mass-claims procedures sensitive to the specific vulnerabilities and needs of victims of human rights violations.[xlii] In this light, questionable provisions include:
- The lack of an explicit requirement that negative decisions, which are final and not subject to appeal, be in writing, as well as the lack of procedures for requesting reconsideration in light of factors such as the discovery of new evidence;[xliii]
- The placement of the initial burden of production of evidence solely on claimants without any ex officio or discretionary duty on the part of the UNRoD to assist in establishing eligibility by accessing existing records or taking notice of well-established factual circumstances affecting significant categories of claims;[xliv] and
- The lack of advance guidance on what types of evidence will most likely be deemed admissible and material.[xlv]
Effect of the UNRoD Rules
The UNRoD Rules should allow for significant acceleration in both the solicitation and receipt of claims and their processing for inclusion in the Register. This, in turn, will result in a substantial body of evidence that will complicate any eventual attempts to exclude Wall-related claims or minimize their extent in the course of negotiating a settlement to the Middle East conflict. However, given the UNRoD’s limited core mandate and the current refusal by Israel to cooperate with the Register, actual redress for persons harmed by the Wall appears beyond the scope of the Rules and remains de facto contingent on the achievement of a political settlement. Nevertheless, the continued viability of this UN-led registration process, as most recently demonstrated through the adoption of the Rules, may also come to be recognized as practice in favor of an emerging rule that reparations to individual victims human rights and humanitarian law violations may not be treated as legally contingent on the resolution of frozen conflicts or the outcome of protracted negotiations.[xlvi]
[i] G.A. Res. 10/17, ¶ 3(a), U.N. Doc. A/RES/ES-10/17 (Jan. 24, 2007).
[iii] Letter from the Secretary-General to the President of the General Assembly, U.N. Doc. A/ES-10/389 (June 22, 2007) [hereinafter 2007 Letter from Secretary General].
[iv] S.C. Res. 242, U.N. Doc. S/RES/242 (Nov. 22, 1967).
[v] S.C. Res. 478, U.N. Doc. S/RES/478, (Aug. 20, 1980).
[vii] U.N. Office for the Coordination of Humanitarian Affairs [UN OCHA] and U.N. Relief and Works Agency for Palestinian Refugees in the Near East [UNRWA], The Humanitarian Impact of the Barrier: Four Years after the Advisory Opinion of the International Court of Justice on the Barrier (July 2008, updated Aug. 2008), at 4, available at http://www.ochaopt.org/documents/Barrier_Report_July_2008.pdf.
[viii] S.C. Res. 1515, U.N. Doc. S/RES/1515 (Nov. 19, 2003).
[ix] G.A. Res. 10/14, U.N. Doc. A/RES/ES-10/14 (Dec. 12, 2003).
[x] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 131, at 163 (July 9) [hereinafter I.C.J. Advisory Opinion].
[xii] G.A. Res. 10/15, ¶ 4, U.N. Doc. A/RES/ES-10/15 (Aug. 2, 2004).
[xiii] Letter from the Secretary-General to the President of the General Assembly, U.N. Doc. A/ES-10/294 (Jan. 13, 2005).
[xiv] U.N. Secretary General, Report of the Secretary General Pursuant to General Assembly Resolution ES-10/15 delivered to the General Assembly, U.N. Doc A/ES-10/361 (Oct. 17, 2006) [hereinafter Secretary General Report].
[xv] G.A. Res. 10/17, supra note 1, ¶¶ 5, 7, 15 and 16.
[xvi] 2007 Letter from Secretary General, supra note 3.
[xvii] Letter from the Secretary-General addressed to the President of the General Assembly, U.N. Doc. A/ES-10/455 (May 4, 2009). The report notes that the Executive Director of UNRoD was appointed in January 2008.
[xviii] Center on Housing Rights and Evictions, Rights without Remedy: The impact of Israel’s illegal Wall in the occupied Palestinian territory on the human rights of the Palestinian people, five years after the Advisory Opinion of the International Court of Justice, at 10 (2009), available at http://www.reliefweb.int/rw/RWFiles2009.nsf/FilesByRWDocUnidFilename/PSLG-7TSDHN-full_report.pdf/$File/full_report.pdf [hereinafter Rights Without Remedy].
[xix] G.A. Res.10/17, supra note 1, ¶ 8.
[xx] Rights Without Remedy, supra note 18, at 10.
[xxi] U.N. Register of Damage Rules and Regulations Governing the Registration of Claims art. 7 (June 19, 2009), available at http://www.unrod.org/docs/UNRoD%20Rules%20and%20Regulations.pdf [hereinafter UNRoD Rules].
[xxii] Id. art. 4.
[xxiii] Rights Without Remedy, supra note 18, at 10.
[xxiv] Id.; see also Press Release, BADIL Resource Center for Palestinian Residency and Refugee Rights, What’s the Problem with the UN Register of Damage Caused by Israel’s Wall in the Occupied Palestinian territories? (Nov. 18, 2006).
[xxv] The ICJ Advisory Opinion initially refers to Israel’s obligation to provide compensation for “any form of material damage” resulting from the Wall’s construction (para. 153) but phrases its findings more broadly, holding that Israel is obliged to repair “all damage” caused by said construction (para. 163(3)(C)). Meanwhile, Resolution ES-10/17 mandates UNRoD to record “the damage” caused by the wall (para. 3(a)) and invites the Board to devise eligibility criteria for inclusion of “damages and losses” caused by the Wall in the Register (para. 6(c)).
[xxvi] According to the Rules, claimants must show that “the claimed damage is material” in order for their claims to be eligible for consideration (Article 2(e)). The same requirement was proposed in the Secretary General Report, supra note 14, ¶ 16.
[xxvii] I.C.J. Advisory Opinion, supra note 10 (paragraphs 133 and 153 of the Opinion cite types of damage ranging from destruction and seizure of residential and agricultural property to impeded access to means of subsistence, urban centers, places of work, health services, educational facilities, and water sources).
[xxviii] Secretary General Report, supra note 14, ¶ 17.
[xxix] UNRoD Rules art. 11(1), supra note 21 (the six categories comprise agriculture, commercial, residential, employment, access to services, and “public resources and other—the latter not being open to individual claimants).
[xxx] UN OCHA and UNRWA, supra note XX, page 19.
[xxxi] Rights Without Remedy, supra note 18, at 7-8, 10.
[xxxii] Id. at 10.
[xxxiii] UNRoD Rules art. 1(13), supra note 21 (defining “person” as “an individual, corporation, public sector entity, international organization, the Palestinian Authority or other legal entity”).
[xxxiv] Secretary General Report, supra note 14, ¶ 4.
[xxxvi] Id. ¶ 18.
[xxxvii] G.A. Res.10/17, supra note 1, ¶ 3(a).
[xxxviii] Id. ¶ 6(g). While the Secretary General’s Report foresees the engagement of experts, it does not include experts in these fields. See Secretary General Report, supra note 14, ¶ 10.
[xxxix] Rights Without Remedy, supra note 18, at 10.
[xl] UNRoD Rules art. 11(2)g, supra note 21.
[xli] Id. art. 3.
[xlii] See generally Pablo de Greiff, The Handbook of Reparations (2006).
[xliii] UNRoD Rules arts. 12(5) and 14(2), supra note 21.
[xliv] Id. art. 8(1).
[xlv] Id. art. 8(2); but see art. 11(2)i.
[xlvi] See Parliamentary Assembly of the Council of Europe, Res. 1708 (2010), Solving Property Issues of Refugees and Internally Displaced Persons, ¶ 10.1 (adopted 28 January 2010) (“[member states are invited to] guarantee timely and effective redress for the loss of access and rights to housing, land and property abandoned by refugees and [internally displaced persons] without regard to pending negotiations concerning the resolution of armed conflicts or the status of a particular territory-….”); see also G.A. Res. 60/147, ¶ 15, UN Doc. A/RES/60/147 (Mar. 21 2006) (“In accordance with its domestic laws and international legal obligations, a State shall provide reparations to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.”); and Cyprus v. Turkey, App. No. 25781/94, Judgment ¶ 174 (Eur. Ct. H.R. May 10, 2001), para. 174 (“…the inter-communal talks [in pursuit of a political solution to the conflict between Greek and Turkish Cypriots] cannot be invoked in order to legitimate a violation of the [European Convention on Human Rights]”).