1  International Claims Commissions (‘ICCs’) are a group of heterogeneous international compensation mechanisms created by international agreements (Mixed Claims Commissions; Mixed Commissions). They encompass unique and important forms of binding adjudication mechanisms, established to consider claims resulting from significant international war-related or traumatic historical events. Their principal aim is to determine compensation owed to a variety of international actors, including individuals, international organizations, private companies, and States, for specific losses, damage, and injuries they suffered.

2  ICCs are generally created as a remedy for a traumatic, often violent, international event (Transitional Justice), as a consequence of which certain actors suffered damage which gives rise to their claims (Mass Claims). Such events have included revolutions, like the 1979 Islamic Revolution in Iran, which overthrew the Shah, the 1998–2000 Eritrea-Ethiopia war, and the invasion of Kuwait by Iraq in 1991. Several claims commissions were created after the conflict in the former Yugoslavia in 1995 by the General Framework Agreement for Peace in Bosnia and Herzegovina and the former Yugoslavia (‘Dayton Peace Agreement’) and ad hoc mechanisms were also established to provide compensation for certain claims of families of Holocaust victims.

3  ICCs are neutral, impartial dispute resolution instruments, whose decisions are binding on all parties. ICCs are not mediation or conciliation mechanisms, nor do they serve as advisory or review bodies. The instruments that create them typically contain a clause that make their decisions binding on the relevant parties, who are obligated under international law to respect and enforce them. The Peace Agreement between Ethiopia and Eritrea (2000) (‘Algiers Agreement’) that created the Eritrea–Ethiopia Claims Commission (‘EECC’), for example, states that decisions and awards of the Commission are ‘final and binding’ and that ‘the parties agree to honor all decisions and to pay any monetary awards rendered against them promptly’ (Art 5 (16) Algiers Agreement).

4  Under the structure created by ICCs’ processes, it is usually States that pay compensation to determined entities, which include individuals and may also include other States, international organizations, and private sector entities. ICCs often engage the responsibility of the State as a sovereign entity and a subject of international law for violations of international law. In some cases, however, such as the Holocaust claims, compensation is due from private parties, though State responsibility still plays a role (International Commission on Holocaust Era Insurance Claims (ICHEIC)). In case of claims pertaining to real property, the remedy can be issued in the form of an official certification of a certain right to a property.

5  ICCs are ad hoc bodies, and their structure, jurisdiction, procedure, and ability to provide remedies vary considerably. This entry focuses on salient procedural aspects of ICCs.

6  Historically ICCs saw their first iteration in the Jay Treaty (1794) between the United States (‘US’) and the United Kingdom (‘UK’), which also established two commissions to resolve claims of British merchants against the US (British Debts Commission: Jay Treaty), and American ship-owners against the UK (Maritime Claims Commission: Jay Treaty). ICCs were relatively common until the Second World War and were created to address a variety of claims.

7  The use of international mixed claims commissions declined after the Second World War as they were considered inefficient and administratively cumbersome. Instead, post-Second World War claims by a foreign national against a State were more commonly resolved by a lump sum Agreement (Lump Sum Agreements) between the two States, as a result of which the recipient State would distribute the sum received through a domestic process. Between the end of the Second World War and 1995 more than 200 such agreements were concluded, including between the US Foreign Claims Settlement Commissions and several countries including Cuba, China, Vietnam, Yugoslavia, and the Federal Republic of Germany.

8  In addition, some commissions were established with very specialized jurisdiction. For example, the Arbitral Commission on Property, Rights and Interests in Germany was an international commission created by a 1952 Treaty between the US, the UK, and France with Germany. It acted as final appeal for decisions taken by competent German authorities and German courts in relation to restitution of, or compensation for, certain requisitioned goods (including jewellery, silverware, antique furniture, and cultural goods) and restoration of property rights and interests affected by discriminatory treatment by Germany or its allies during the Second World War. In the same vein, the conciliation commissions established pursuant to Art. 83 Peace Treaty with Italy (1947) had jurisdiction over intra-State restitution claims for property removed by force or duress. If restitution was not possible, a similar object had to be transferred or compensation paid by Italy. The commissions were also competent in cases related to the restoration of legal rights and interests of the United Nations (‘UN’) or their nationals in Italy. Similarly, the property commissions established pursuant to Art. 15 Peace Treaty with Japan (1951) created commissions to hear inter-State claims related to the return of property rights and interests of UN nationals by Japan.

9  The resurgence of the claims commission in the more classical sense of the term occurred with the establishment of the Iran-United States Claims Tribunal (‘IUSCT’) in 1981, followed by the United Nations Compensation Commission (UNCC) in 1991, and the EECC in 2000.

10  The IUSCT was established in 1981 to decide claims (and counterclaims) of nationals of the US against Iran and claims (and counterclaims) of nationals of Iran against the US, and claims (and counter-claims) of the US and Iran against each other arising out of contractual arrangements between them for the purchase and sale of goods and services. The number of total claims filed was not large, yet the total claimed sum was considerable, amounting to tens of billions of dollars. Overall, 3,936 claims were filed. An Award on Agreed Terms terminated 2,388 claims for less than US$250,000 in 1990. In inter-State proceedings, the US filed 24 claims and Iran 53, for a total of 77 claims. US parties were awarded more than US$2 billion and Iran and Iranian parties than US$1 billion. Counterclaims are still being decided. The IUSCT continues to work in The Hague, and it is the longest running international commission in history. All claims by the US have been decided. The outstanding claims were brought by Iran against the US.

11  The UNCC was created by UN Security Council (‘UNSC’) Resolution 687 (1991) as a subsidiary organ of the UNSC (United Nations, Security Council), and as an instrument to provide compensation for a variety of losses resulting from Iraq’s invasion of Kuwait in August 1990 (Iraq-Kuwait War (1990–91)). The UNCC was able to deal with a large number of claims in a relatively short time. It was the first example of an ICC’s successful use of mass claims procedure, which provided compensation to thousands of foreign workers who had to flee the region because of the invasion, including individual claims for serious personal injury or death, and individual claims for losses. The jurisdiction of the UNCC also included claims by corporations and other private or public enterprises, as well as claims from governments in the region (including Iran, Saudi Arabia, Syria, Jordan, and Kuwait) and international organizations.

12  Large and complex claims by States were heard and compensated with substantial sums. Overall, about 2.7 million claims were filed with the Commission, with an asserted value of US$352.5 billion. The Commission concluded claims processing in 2005. It awarded compensation of around US$52.4 billion to approximately 1.5 million successful claimants. The UNCC has paid US$47.8 billion in compensation to date. The remaining amount of US$4.6 billion pertains to a single claim awarded to Kuwait for the production and loss of sales resulting from damage to Kuwait’s oil-fields assets.

13  The EECC was created in 2000 as part of the peace agreement between Eritrea and Ethiopia and was established to ‘decide through binding arbitration all claims for loss, damage or injury by one Government against the other’ related to the armed conflict and resulting from ‘violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law’. The EECC issued its first decisions on jurisdiction and procedure in 2001, several partial awards on the merits in 2003–2005, and final awards on damage in August 2009. The damage awards ordered the payment of compensation of approximately US$161 million to Eritrea and about US$2 million to Eritrean nationals. The EECC also awarded around US$174 million to Ethiopia.

14  Other recent ICCs include: the Commission for Real Property Claims of Displaced Persons and Refugees (‘CRPC’) created by the Dayton Peace Agreement and adjudicated individual claims to property or compensation after the armed conflict in Yugoslavia, which left one-third of the housing stock destroyed or uninhabitable and created more than 2 million refugees. The CRPC was mandated to receive and decide ‘any claims for real property’ in Bosnia and Herzegovina by binding decision and issued ‘CRPC Certificates’ to applicants, which subsequently became documents carrying the full force of the law. It ceased its work in 2003 after issuing more than 300,000 final and binding decisions. The Housing and Property Claims Commission (‘HPCC’) established, like the CRPC, in part of the former Yugoslavia for the purpose of adjudicating individual claims to property or occupancy rights in the wake of armed conflict.

15  More recently, claims commissions have been created for other situations of armed conflicts, including the Iraq Property Claims Commission, and the Kosovo Property Claims Commission.

16  Additionally, mass claims processes were created to deal with losses of assets and claims for forced labour resulting from the Holocaust. The Holocaust Claims process comprises claims arising from the Holocaust committed in Germany under the Nazi regime (German Forced Labour Compensation Programme). It includes claims of restitution of monies from, among others, Swiss banks for money held in accounts and life insurance claims that were in place before the Holocaust and from German corporations that benefited from the forced slave labour of Holocaust victims. Claims commissions include the Claims Resolution Tribunal (‘CRT’) I and II, and several domestic processes.

17  ICCs are created by international agreements. The kind and format of each international instrument can vary and may include treaties and UNSC resolutions. The EECC, for example, was established by a bilateral agreement between Eritrea and Ethiopia, signed in 2000 in Algeria. The IUSCT was established through agreements expressed separately by Iran and the US—which at the time did not have diplomatic relations—to the government of Algeria and collected in the Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, 1981 (‘Algiers Accords’). Differently, the UNCC was created by a resolution of the UNSC in the aftermath of Iraq’s invasion of Kuwait. Because they are international bodies, ICCs also share many of the structural characteristics of international organizations: they are regulated under international law, they generally apply international law and they mostly employ international staff.

18  The jurisdiction of claims commissions varies in terms of both subject matter and personal jurisdiction depending on each commission’s specific mandate. The flexibility of their jurisdiction is one of the ICCs strong points. Note that jurisdiction is usually retrospective so that the creating instrument can determine and define the jurisdiction after the event that gave rise to the claims.

19  ICCs may have jurisdictions for claims brought by a variety of international subjects. Claims commissions allow States to bring claims. Under certain rules individuals were also able to bring claims directly, or by the State of nationality or residency on their behalf. More rarely, for example at the UNCC, international organizations and corporations have also been granted direct access. Non-governmental organizations (‘NGOs’) have not been allowed to directly present claims, which is also in line with their present standing in most international human rights tribunals (International Courts and Tribunals, Standing).

20  The IUSCT, the UNCC, and the EECC all allow States to file claims on their own behalf for losses and injuries that they suffered. Claims from States, either on their own behalf or on behalf of their nationals, are the traditional form in which compensation is awarded in international law. For example, Article II (2) Algiers Accords gave it jurisdiction over official claims by the US (defined as ‘the Government of the United States, any political subdivision of the United States, and any agency, instrumentality or entity controlled by the Government of the United States or any political subdivision thereof’) and Iran (defined as ‘the Government of Iran, any political subdivision of Iran, and any agency, instrumentality, or entity controlled by the Government of Iran or any political subdivision thereof’) and all related counterclaims (Counterclaim).

21  Claims at the UNCC were divided into different categories named from the letters of the alphabet. Category ‘F’ claims was reserved for claims by governments, and claims were submitted directly by 43 governments (and six international organizations) for a total amount of over US$236 billion. More than 400 claims were submitted in this category, including by Australia, Germany, India, Iran, Israel, Jordan, Kuwait, Pakistan, Turkey, Saudi Arabia, Syria, the UK, and the US.

22  One characteristic feature of ICCs is that they generally permit individuals’ claims. As individuals are often the ones who suffer most directly the consequences of conflict and upheaval, this is particularly important and it also sets ICCs apart from other international dispute resolution mechanisms, like the International Court of Justice (ICJ), which are often open to States only. In the IUSCT for example, individuals, both natural and legal, had immediate access to the tribunal and could submit a claim directly. Under the Algiers Accords, the IUSCT was established to decide ‘claims of nationals of the United States against Iran and claims of nationals of Iran against the United States’. This includes private claims of US nationals against Iran and of Iranian nationals against the US arising out of debts, contracts, expropriations, or other measures that affected property rights (Expropriation and Nationalization). At the UNCC, claims by individuals had to be filed by their government of nationality and several procedural mechanisms ensured that the compensation reached the specific named individuals. Certain individual claims could also be submitted by international organizations. This was particularly the case for claims by Palestinians, which were submitted by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and the UN High Commissioner for Refugees (Refugees: United Nations High Commissioner for (UNHCR)). Corporations and international organizations were also able to file, and receive, compensation for their claims. At the EECC, parties were entitled to submit claims on their own behalf and on behalf of their nationals (including both natural and legal persons), or in certain circumstances, persons of Ethiopian or Eritrean origin who were not their nationals. The EECC heard several claims related to the deprivation of nationality.

23  In terms of jurisdiction ratione materiae, ICCs can cover a variety of issues linked to the specific event that gave rise to their creation. These issues have included mostly economic losses and also claims resulting from war activities. At the IUSCT, for example, Iran and the US filed claims against each other arising from contracts for the purchase and sale of goods and services. UNCC claims were filed for losses that included damage to diplomatic premises (Premises of Diplomatic Missions) and government premises, losses due to evacuation cost and the provision of relief to citizens. Several claimants also filed claims for environmental damages and depletion of natural resources. Individuals filed claims for serious personal injuries or for individuals whose spouse, child, or parent perished or was injured because of the invasion; and for personal economic losses. The work of the EECC focused on damage caused by war activities, and specifically violations of international humanitarian law (Humanitarian Law, International), including the 1949 Geneva Conventions (Geneva Conventions I–IV (1949)) and other violations of international law. Under Article 5 Algiers Agreement, the commission’s mandate was to decide damages or injury by one government against the other government or entities owned and controlled by the other party (Art 5 Algiers Agreement). These include injury to the civilian populations (Civilian Population in Armed Conflict), including physical and mental abuses; looting and destruction of private and public property; destruction of cultural property (Cultural Property, Protection in Armed Conflict); displacement of people; and injury suffered by prisoners of war. Jurisdiction ratione materiae of the CRPC and other post Yugoslavia fragmentation ICCs focused on real property restitution. Several ICCs were also created to deal with Holocaust claims of restitution of monies from, among others, Swiss banks, for money held in accounts and life insurance claims that were in place before the Holocaust and from German corporations that benefited from the forced slave labour of Holocaust victims. Even in the event of claims commissions established after a conflict, however, costs of military operations are never covered.

24  Temporal and geographical jurisdictions are also considered and detailed in the establishing mechanisms. The IUSCT, the UNCC, and the EECC all carefully detail their temporal jurisdiction in their constitutive instruments. For example, the Claim Settlement Declaration of the IUSCT specified that the IUSCT has jurisdiction over private claims, and counterclaims arising out of the same contract or transaction, if such claims and counterclaims were outstanding as of 19 January 1981 (the date of the agreement), whether or not they had been filed with any court, and arising out of debts, contracts, expropriations, or other measures affecting property rights. The temporal jurisdiction of the UNCC reflected the more complex underlying situation. UNSC Resolution 687 provided that, ‘without prejudice to the debts and obligations of Iraq arising prior to 2 August 1990’ Iraq was liable under international law for direct losses, damage, and injuries resulting from Iraq’s unlawful invasion and occupation of Kuwait. The question of claims arising prior to 2 August 1990—the date of the invasion of Kuwait—was fundamental and confronted by one of the UNCC panels (‘E2’), which concluded that:

25  This interpretation was followed and applied by all subsequent panels and resolved the jurisdictional question. Decision No 1 of the EECC (August 2001) concluded that there was a presumption that claims arising during the period of armed conflict between May 1998 and 12 December 2000 were within the commission’s jurisdiction.

26  Decisions at ICCs are made by a neutral and independent authority. Depending on the complexity and value of the case, the decision-making process is akin to that of an arbitral tribunal and claims process in a similar way to arbitral proceedings. In situations of small or mass claims, speed takes precedence over the usual arbitral process and mass claims techniques are often prevalent.

27  The IUSCT is composed of nine judges: three selected by the US, three Iranians, and three judges (including the President) from other countries appointed by the party-appointed members, or, if they cannot agree, by the tribunal’s appointing authority. The Tribunal decides cases by majority of either one of the three three-member chambers or by the Full Tribunal. Article V Algiers Accords provides that the tribunal ‘decide all cases on the basis of respect for law, applying such choice of law rules and principles of commercial and international law as the Tribunal determines to be applicable, taking into account relevant usages from the trade, contract provisions and changed circumstances’. Initially all inter-State claims were assigned to the Full Tribunal. However following IUSCT Presidential Order No 1, State claims were generally assigned to individual chambers. Claims under US$250,000 were defined as small claims. About 2,800 small claims were filed (the great majority from US nationals), and they were settled by a lump-sum payment of Iran to the US of US$105 million. Approximately 1,000 large claims were filed and decided by 2003. Overall, the IUSCT awarded more than US$2.5 billion in awards to US nationals and companies.

28  Claims at the UNCC were more numerous, varied, and complex. The administration of such a vast programme required the establishment of a special administrative structure, which comprised three organs: the Governing Council (‘GC’), the Commissioners, and the Secretariat. The GC, whose membership mirrored that of the UNSC, was the principal organ responsible for the general policy and legal framework. It also reviewed and finally approved the reports and recommendations on claims made by the Commissioners. The commissioners, nominated by the UN Secretary-General (United Nations, Secretary-General) upon recommendation of the Executive Secretary of the UNCC, sat in panels of three to consider and render recommendations on claims in specific categories of claims. Finally, the secretariat, headed by the executive secretary, supported the work of both the GC and the commissioners in a variety of ways. The secretariat was headquartered in Geneva, Switzerland, and at its peak comprised 250 staff including lawyers, statisticians, and claims assessors. Under Decision 10 of the UNCC GC (1992), governments were entitled to submit claims directly and on behalf of their nationals or residents. Importantly, UNSC Resolution 687 (1991) had already found that Iraq was ‘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’ (see also Liability for Environmental Damage). The role of the commissioners and the GC was to verify the validity of claims and create an appropriate process to evaluate losses and resolve disputed claims in respect of Iraq’s liability. It had to verify whether the claim was a direct loss resulting from Iraq’s invasion or if other causes existed.

29  The CRPC comprised nine members; three international members appointed by the President of the European Court of Human Rights (ECtHR), two appointed by Republica Srpska, and four by Bosnia and Herzegovina. At its peak it employed 400 staff, mostly nationals, and everyday operations were run by the executive office. Decisions were taken by majority.

30  The EECC looked very much like an intra-State arbitral tribunal. It comprised five members, two appointed by each party and a presiding commissioner selected by the party-appointed arbitrators. It took decision by majority, though in practice decisions were taken unanimously. The commission was seated in The Hague and the Permanent Court of Arbitration (PCA) served as its registry. Hearings were held at the Peace Palace, and, as customary for ICCs, they were in camera. The commission began its work by addressing questions related to jurisdiction, procedure, and possible remedies. It adopted its own Rules of Procedure, after consultation with the Parties, based on the PCA Optional Rules for Arbitration Disputes Between Two States (Arbitration Rules (2012): Permanent Court of Arbitration (PCA)). The Commission decided to bifurcate proceedings, dealing with issues of liability first, and of damage later.

31  For ICCs to manage and process claims efficiently and expeditiously, it is essential that those claims be grouped and systematized in a coherent, effective, and fair system (Case Management). The way this is done depends on the number and kind of claims and it is specific to each ICC.

32  The IUSCT for example, received about 1,000 large claims and 3,000 small claims. The great majority of the small claims (about 2,500—of which 2,400 were from the US and 100 from Iran) were settled by a lump-sum payment by Iran to the US of US$105 million and then decided by the US Foreign Claims Settlement Commission. Inter-State claims were initially assigned to the Full Tribunals, but were later decided by individual chambers. Once claims were submitted to the tribunal they were excluded from Iranian and US courts or any other local court. Under Article III Algiers Accords, claims valued at more than US$250,000 were considered large claims and claimants were responsible for litigating them. Individual claims pertained to ‘debts, contracts (including transactions which are the subject of letters of credit or bank guarantees), expropriations or other measures affecting property rights’, while official claims were defined in the Claims Settlement Declaration as ‘claims of the United States and Iran against each other arising out of contractual arrangements between them for the purchase and sale of goods and services’.

33  Claims at the UNCC were both more numerous and more complex. The UNCC GC took some important decisions at the outset that specified how claims were to be managed. Under Decision No 10 of the UNCC Governing Council, governments were entitled to submit claims directly and on behalf of their nationals or residents. To ensure the efficient compensation of individuals, the GC decided to grant priority to small individual claims; it also allowed mass claims methodologies that would review claims expeditiously and created a specific payment processes to individual claimants. The commission adopted a more traditional adversarial process only for large and complex claims.

34  The GC grouped claims into six groups. Individual claims in categories ‘A’, ‘B’, and ‘C’ were processed on an urgent basis. Category ‘A’ claims were claims submitted by individuals who had to flee from Iraq or Kuwait during the period of 2 August 1990, to 2 March 1991. These claims were for a fixed amount of US$2,500 for individuals and US$5,000 for families. For those claimants that only filed ‘A’ claims, the maximum eligible payment was of US$4,000 for individuals and US$8,000 for families. The commission received over 90,000 claims in this category, from 77 governments and 13 offices of international organizations. The commission awarded compensation to over 850,000 successful claimants for a total of more than US$3.1 billion. Category ‘B’ claims were individual claims for serious personal injury to the person or for the death of a spouse, child, or parent as a consequence of Iraq’s invasion and occupation of Kuwait. Category ‘B’ claims were also for a fixed amount, in this case of US$2,500 for individuals and US$10,000 per family. About 6,000 ‘B’ claims were filed by 47 governments as well as seven offices of three international organizations. Around 3,900 claims were successful for a total of US$13,450,000 awarded to claimants. Category ‘C’ claims included claims for damages of up to US$100,000 each. Category ‘C’ claims included:

35  Eighty-five governments and eight office of three international organizations filed claims for a total of 1.7 million claims seeking compensation for a total of approximately US$11.5 billion. Claims submitted under this category also included a consolidated claim submitted on behalf of 800,000 workers by the Central Bank of the Government of Egypt, whose remittances were not deposited, as well as about 3,000 late Palestinian claims.

36  Claims in categories ‘D’, ‘E’, and ‘F’ were larger and more complex. Category ‘D’ claims were also individuals’ claims and covered claims in excess of US$100,000. Claims included departure costs, loss of property and income, and business-related losses. Approximately 12,000 claimants requested around US$16.5 billion. The more than 10,000 successful claimants were awarded US$3.3 billion. Claims were filed by 50 governments and eight offices of three international organizations. Successful claimants came mostly from Kuwait, Jordan, and India. Category ‘E’ claims covered claims by corporations, other private legal entities, and public sector enterprises. The commission further organized claims into four separate categories. Under category ‘E’ claims, the commission awarded a total of US$26.3 billion in compensation to about 4,000 claims. This category includes the largest claims awarded by the UNCC: US$14.7 billion for losses of oil production and sales that resulted from the damage inflicted on Kuwait’s oil fields. Category ‘F’ claims were submitted by 43 governments and six international organizations for losses including costs for evacuation and for providing relief to citizens, damages to diplomatic premises, and to other government property. One important head of claim was for environmental damages, which included claims for damage caused to air, soil, and water because of the invasion of Kuwait. Claimants submitted about 400 claims for over US$236 billion. Finally, a mixed category of ‘E/F’ comprised 123 claims for export guarantee and insurance seeking approximately US$6.1 billion. The commission awarded compensation for a total of US$14.4 billion.

37  Claims undergoing formal review were included in quarterly reports of the executive secretary to the GC issued pursuant to Article 16 of the Rules (‘Article 16 Reports’). These reports listed the total number of claims covered, the relevant category, and total amount of compensation sought. The reports also indicated significant factual and legal issues raised by the claims. The reports were made available to the GC, the government of Iraq, and to all governments and international organizations that had filed claims (whether on their own behalf or for other claimants), with an invitation to submit within (for claims in categories ‘D’, ‘E’ and ‘F’) any additional information and views they had on the issues raised within 90 days. The information so submitted was subsequently taken into consideration by the panels of commissioners. Before submitting the claim files to the panels, the secretariat, acting upon guidance from the panels, was able to request a claimant to provide further information and documentation deemed necessary to complete the file and to enable the commissioners to perform a substantive review of the claims. The executive secretary then submitted the claims in ‘instalments’ to the panel of commissioners appointed to review the group of claims, together with responses received by Iraq and claimant governments to relevant Article 16 Reports and any additional information and/or documentation provided by the claimants in response to requests from the secretariat. For ‘unusually large or complex’ claims, the relevant panel could decide to make claims files available to the government of Iraq, and to request additional written submissions from Iraq and invited the claimants and Iraq to participate in oral proceedings. Once the review was completed, each panel of commissioners would submit a written report through the executive secretary to the GC on the claims received and, for each claim, the amount of compensation recommended. The reports also provided brief explanations as to the reasons for the recommendations. The amounts recommended by the panels of commissioners were subject to approval by the GC. Decisions taken by the GC on compensation awards were final and not subject to appeal or review and were made publicly available.

38  Claims heard by the EECC represent a distinctive variety of post-conflict injury, and they uniquely include specific violations on international humanitarian law. The categories, forms, and procedure of claims was decided by EECC Decision No 2 (August 2001). It described six categories in which claims could be filed:

Mass-claims procedures could be used for Categories 1 to 5, but neither party availed itself of that possibility.

39  Key distinguishing features of ICCs pertain to the kind of, and evaluation of, evidence permitted under each procedural rule. ICCs have adopted innovative mechanisms to address the need to process and decide expeditiously a very large number of cases for which documentary evidence may be scarce, and complex cases between international actors who submit a variety of types of evidence.

40  For example, because claims arise from common circumstances and involve common legal and factual issues, mass claims processes are used to expedite proceedings and ensure compensation, especially for large numbers of small individual claims. Such processes include grouping of claims and the use of large-scale computerization, which can assist with the evaluation and verification procedures of thousands of claims using techniques like computerized matching, and the use of statistical modelling and sampling. In cases of statistical sampling, software is coded so that answers to questions would result in the claim being grouped or sub-grouped, as appropriate. The UNCC made large use of these techniques, especially for individual claims in categories ‘A’, ‘B’, and ‘C’. Its GC decided that a detailed individual review was neither warranted nor feasible—also because the legal responsibility of Iraq for damages had already been established—so that small urgent claims were reviewed using mass claims processing and computerized methodologies. Additionally, mass claims processes also delegated some review functions to the secretariat or administrative institutions. For example, at the UNCC the secretariat provided an initial review of all claims under US$100,000.

41  Difficulties in collecting necessary documents in the aftermath of war have also led ICCs to accepting only the evidence that can be reasonably expected under the circumstances. For example, at the UNCC, payment of a fixed amount of US$2,500 was approved when the simple proof of departure from Iraq or Kuwait during a specific timeframe or that an injury occurred at a specific date; no direct link to the conflict or extent of injury had to be demonstrated. For claims of up to US$100,000 the evidence required was the reasonable minimum appropriate under the circumstances, and a lesser degree of documentary evidence was considered sufficient for smaller claims up to US$20,000 (Art 35 UNCC Provisional Rules for Claims Procedure). Similarly, Article 22 CRT Rules of Procedure for the Claims Resolution Process required a claimant to show that his or her entitlement to compensation was plausible under the circumstances, as the arbitrators were asked to keep in mind the ‘difficulties of proving a claim’ after the destruction caused by the Second World War and the Holocaust and the long time that had passed. This relaxed standard of proof was deemed acceptable because of the relatively small amount of compensation and the need to provide expeditious compensation to a large number of individuals.

42  In contrast to small individual claims, claims that were categorized as complex and unusual or were more valuable as well as larger claims were processed under a procedure that closely resembles international arbitration. In general, the more complex and substantial the claim, the higher the threshold and required evidence. For example, UNCC claims in categories ‘D’, ‘E’, and ‘F’ had a higher evidentiary standard than small claims, and they had to be supported by documentary and other evidence sufficient to demonstrate the circumstance and amount of the loss claims. A claimant’s explanatory statement was not sufficient. At the EECC, in which neither party availed itself of mass claims processes, parties submitted lengthy written pleadings and held hearings which included witnesses. Similarly, for claims by States against Iraq at the UNCC, written pleadings were exchanged and hearings were held in Geneva. Hearings and written pleadings are the norm at the IUSCT.

43  Characteristically each claims commission process, whether arbitral or administrative in nature, is governed by its own procedural rules, typically referred to in the constituting instrument. Procedural rules are ad hoc and are targeted to resolve the specific matters under the jurisdiction of the relevant ICC. In practice the scope and substance of the various rules tends to be adapted from the Arbitration Rules of the United Nations Commission on International Trade Law (‘UNCITRAL Rules’; Arbitration Rules: United Nations Commission on International Trade Law (UNCITRAL)) or the PCA Optional Rules for Arbitration Between Two States, which are themselves based on the UNCITRAL Rules. The IUSCT was the first to use the UNCITRAL Rules and other ICCs followed suit. In October 2001, the EECC adopted its Rules of Procedure, based on the PCA rules, following consultation with the parties.

44  The applicable substantive rules depend on each particular commission and it is linked to the substantive jurisdiction of each commission. In general, public international law applies first with the addition of a specific body of law necessary to resolve specific disputes. Under the mandate of the Algiers Accords for example, the IUSCT decides all cases ‘on the basis of respect for law, applying such choice of law rules and principles of commercial and international law as the Tribunal determines to be applicable, taking into account relevant usages of the trade, contract provisions and changed circumstances’ (Art V Algiers Accords). Article 5 (13) Algiers Agreement that created the EECC required the commission to apply the relevant rules of international law and prohibited it form making decisions ex aequo et bono. In an obvious reference to Article 38 ICJ Statute, the EECC was to look more specifically to:

45  The commission could also refer to national, laws in appropriate circumstances.

46  To be fully successful, it is essential that ICCs are capable of providing sufficient compensation and are able to ensure that any award is paid and enforced, especially for small individual claims.

47  Some ICCs have been quite successful in both issues and were able to compensate fully and expeditiously and to monitor enforcement. Much depends on the instrument that creates the ICC and the immediate availability of funds.

48  Under the Algiers Accords, for example, Iran agreed to place US$1 billion in an account as security for payment of IUSCT awards against Iran, and to keep that account at US$500 million until all awards against Iran were satisfied. That unique mechanism simplified the enforcement of awards and made payments possible. The cost of running the tribunal is split equally between the two parties.

49  The UNCC was created in the aftermath of the invasion as a subsidiary organ of the UNSC by Resolution 687 of the UNSC and the resolution also created a special Fund to be financed by a percentage of the value of Iraq’s petroleum and petroleum-products exports. Part of the fund was used to pay claims and covered all the costs of the UNCC. For claimants this was essential. The UNCC was able to fully pay individuals and most other claimants (the only outstanding claim is a large claim from Kuwait) and adopted a special methodology to ensure payments to the right person. Once awarded, funds were sent by the commission to the government or international organization who had submitted the original claims. These entities were then responsible for distributing the funds to the successful claimants within six months of receiving the payment, and report back to the GC on all payments made within three months. The GC also required governments to provide an audit certificate, at least annually. Governments and international organizations were allowed to deduct a maximum of 1.5% of the sum paid to offset the cost of processing the payments. The periodical payment reports also had to include all deductions made. Failure by governments and international organizations to report on the distribution of funds resulted in the suspension of any further payments. Monies for payment not distributed within twelve months—for example because claimants could not be located—had to be returned to the commission, also under penalty of suspension of further funds. Should claimants be subsequently located, or the payment become possible, the commission would return the amount to the relevant government or international organization for distribution. All payments were suspended on 30 September 2006. This unique payment process was certainly cumbersome for both the UNCC and governments. However, it was also necessary; not only to ensure the proper distribution of all final payments, but also to guarantee transparency of the process and ultimately the credibility of the claims process.

50  The creation of a fund using Iraq’s oil revenue to pay compensation was not without criticism. However, it was essential for the success of the UNCC in compensating both individuals and States.

51  No such mechanism existed for the EECC, and in fact the payment of the respective awards by Eritrea to Ethiopia and Ethiopia to Eritrea did not occur for many years after the awards were issued.

52  Absent a way to ensure the payment of the compensation and ensure/monitor the payment, the work of a commission may become futile.

53  ICCs are compensation mechanisms rooted in post-conflict situations. They are ad hoc, heterogeneous instruments and their effectiveness and success are largely based on their flexibility.

54  Flexibility allows ICCs to be responsive to new situations and address problems differently. In terms of determining claimants and types of claims for example, ICCs can target specific groups and injuries. Claimants for example, include States, individuals, and, in some instances, international organizations. Significantly ICCs are at the forefront in the recognition of individuals’ access to remedies and rights under international law.

55  ICCs’ ad hoc nature has also proven important in relation to several procedural matters, especially on issues of evidence. When claims concerned large numbers of claims for fixed-sum amounts and related to the same factual and legal circumstances for example, ICCs have adopted mass claims procedures (mostly taking the example of similar domestic processes), which allowed for expeditious review. A flexible standard of proof, where fixed-sum claims can be proven by a reasonableness standard (Reasonableness in International Law) while larger claims require a higher threshold to be reached, has also allowed the process of large number of individual claims. Both procedures have also limited cost and time and may set an example for other future kinds of small multiclaims processes.

56  In sum, ICCs are an eclectic group, which share important common characteristics. They are a unique and important form of international adjudication established to consider claims resulting from significant international war-related and traumatic historical events. They are especially suited to address and compensate small claims and the claims of individuals. The creation of a heterogeneous system of claims commissions also complements the proliferation of international courts and tribunals as one further option for post-conflict reparations.

57  The support of the international community during all the steps of the ICC’s procedures—from formation to ensuring enforcement—remains essential for the efficient and expeditious work of all ICCs.