Dear Madam and Sirs:
Re: Legal and technical aspects of the UN Register of Damage
As you are aware, on 22 June, the United Nations Secretary General reported to the General Assembly that the Board of the Register would begin dealing with the following issues at its next meeting:
(a) To establish the rules and regulations governing the work of the Office of the Register of Damage;
(b) To determine the eligibility criteria for the inclusion in the Register of Damage of losses and damages that have an established causal link to the construction of the wall;
(c) To apply such criteria to the determination of the categories of losses and damages that may be included in the Register of Damage;
(d) To develop the format for the design of claim forms;
(e) To agree on modalities of a public-awareness programme to inform the Palestinian public of the requirements for and logistics involved in the filing of a damage claim for registration.
The Palestinian National Committee for the Register of Damages is discouraged that the Board has not yet convened this meeting to address these issues. While some time seems to have past without progress, the Committee would like to take this opportunity to convey its preliminary views on these and related matters concerning 1) Access to the Register, 2) Procedure for the collection and registration of damage claims, 3) Eligibility of claimants, 4) Types of remedies, 5) Category of damages, 6) Causation, 7) Standard of proof, and 8) Claim forms.
1. Access to the Register
Privacy interests of individual claimants should be protected by limiting public access to the Register to certain aggregate claims data, such as the number of claims filed, their aggregate value and other similar information. Nonetheless, the Palestine Liberation Organization, as the representative of the Palestinian people as recognized by the UN, should have unfettered access to the claims documentation, including the right to obtain copies of all claims files. In the interest of transparency, the decisions of the Board should also be made publicly available (with privileged or confidential information redacted). It is important that these principles be specifically incorporated into the rules of the Register, particularly because accessibility of the Register was not addressed in UNGA Res. ES-10/17.
2. Procedure for the collection and registration of damage claims
The procedure for the collection and registration of damage claims should be organized in a manner that meets the requirements of international best practice. These requirements are essential for ensuring the fairness and efficiency of the process and the consistency of decision-making. Key among them:
(a) Easy access to the process: This requires that a sufficient number of claim intake posts be established in various parts of the West Bank, including East Jerusalem. The actual number will depend on, inter alia, the number of claims that are expected to be filed. Ensuring access is particularly important in view of the existing limitations on Palestinian freedom of movement in the area;
(b) Competent and experienced staff: Claim intake posts must be properly managed and staffed by competent and trained personnel to ensure that claimants are provided with proper advice and assistance in filling out claim forms, stating their claims and collecting and presenting evidence. Specifically, while they need not all be professionals, all staff must be properly trained and familiar with international claims processing. Furthermore, at least one of the managers in charge of the claims intake process should be legally trained;
(c) Appropriate assistance to claimants: Best practice in international claims processing dictates that the advice and guidance offered should be concrete assistance rather than just general information. Indeed, claim intake posts should not only receive claims but also provide advice and assistance to claimants, especially to those who are unrepresented, in order to ensure that the claim forms are properly filled out and that all the evidence necessary to support the claims is included in the claim file. Claimants should not be required to seek legal advice and assistance at their own cost and initiative;
(d) Collection of evidence ex officio: Given the difficulties that many claimants will face with presenting evidence, the Office of the Register should be authorized and indeed mandated to collect evidence at its own initiative (ex officio), to supplement the evidence presented by the claimants. When taking decisions on the claims, the Board should take into account all of this evidence; and
(e) Creation of a claims database: As envisaged in UNGA Res. ES-10/17, which refers to the “electronic versions” of claims, the Office of the Register must be supported by an adequate information technology infrastructure, allowing the computerization of claims and supporting evidence and the creation of an electronic claims database.
3. Eligibility of claimants
As clearly stated in para. 153 of the International Court of Justice’s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory of 9 July 2004 (“ICJ Opinion”) and in UNGA Res. ES-10/17, both natural and legal persons are eligible to submit claims to the Register.
a. Natural persons
Any individual, regardless of his or her nationality (if any), with the exception of Israeli citizens, and regardless of his or her residency, should be eligible to bring claims before the Register, provided that his or her legal rights have been affected by the construction of the Wall. Both property owners and those who exercise use rights over the claimed property should be considered entitled to claim for restitution and/or compensation.
Relaxed nationality requirements are particularly appropriate in this context since Palestinians, who are likely to constitute the vast majority of claimants, are generally considered as being stateless, i.e. without nationality, under international law (unless they have a nationality of another State). Such a position would also be consistent with the Court’s Advisory Opinion, which does not specifically distinguish between Palestinians and third country nationals when discussing eligibility. As for Israeli nationals, it is assumed that they would be ineligible because, in the absence of express consent of the State concerned, claims by nationals against their own State are generally considered as being a matter of domestic jurisdiction and thus outside the jurisdiction of an international body such as the Register.
Relaxed residency requirements are also appropriate because the right of a claimant to seek redress for harm to his or her legal rights should not be conditioned upon residency status. Furthermore, imposing residency requirements would be prejudicial to refugees, internally displaced persons and others who may be absent from the Occupied Palestinian Territory (OPT) for any number of reasons. Indeed, as noted by the UN General Assembly in UNGA Res. ES-10/17, the Board should bear in mind, when determining the eligibility criteria, “varying circumstances with regard to the … residency status of the claimants.”
There is nothing in the constituting documents – the Court’s Advisory Opinion or the relevant General Assembly resolutions – that would limit claims to those who enjoy ownership rights. A similar approach has also been adopted in other claims programs.
b. Legal persons
Any legal entities, except those incorporated or registered in Israel or those controlled by Israeli interests, should be eligible to bring claims. The criteria for determining whether a particular entity should be considered a legal person eligible to make a claim should be based on the applicable law, which, in principle, is the law of the place of incorporation.
Palestinian public entities, such as the Palestine Liberation Organization, municipalities and village councils, should be considered eligible to bring claims, so long as they meet other preliminary requirements (ownership, use right) as well as the relevant substantive criteria.
4. Types of remedies
The Register should receive claims for both restitution or, if that is not materially possible, compensation in the alternative.
This is consistent with the ICJ Opinion, which establishes that “Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned” and concludes in para. 153 of the Opinion:
Israel is accordingly under an obligation to return the land, orchards, olive groves and other immovable property seized from any natural or legal person for purposes of construction of the wall in the Occupied Palestinian Territory. In the event that such restitution should prove to be materially impossible, Israel has an obligation to compensate the persons in question for the damage suffered. The Court considers that Israel also has an obligation to compensate, in accordance with the applicable rules of international law, all natural and legal persons having suffered any form of material damage as a result of the wall’s construction. (Emphasis added)
It is well established in international law that the term reparation covers both restitutions in kind and compensation.
These two aspects of Israel’s reparation obligation were also confirmed in UNGA Res. ES-10/17, in which the General Assembly specifically recognized the necessity of accurately documenting the damage caused by the construction of the wall for the purpose of fulfilling the obligation to make the above-mentioned reparations, including restoration and compensation. (Emphasis added)
5. Categories of damage
In exercising its authority to determine the “criteria of damage,” the Board should not limit the scope of Israel’s liability for damage that otherwise would be receivable. The categories that the Board establishes should not be considered exhaustive. Moreover, both material and non-material damages should be receivable by the Register, including damage to public property and to the environment.
This would be consistent with the ICJ Opinion. While the Opinion provides some guidance as to the types of damage that are considered eligible for registration, it does not purport to define exhaustively the categories of claims that may be made. Indeed, when referring to concrete examples in para. 153, the ICJ Opinion refers, non-exhaustively, to “the land, orchards, olive groves and other immovable property seized from any natural or legal person for purposes of construction of the wall.” (Emphasis added)
While the ICJ Opinion states at para. 153 that Israel has an obligation to compensate for “any form of material damage”, operative para. 163(C) states that Israel has an obligation to make reparation for “all damage” (emphasis added) caused by the construction of the Wall. Similarly, the French, and authoritative, version of the ICJ Opinion states in para. 152 that “Israël a l’obligation de réparer tous les dommages causés à toutes les personnes physiques ou morales concernées.” (Emphasis added) This is consistent with general norms under the law of state responsibility, which guarantee reparation not only for material but also for non-material damages. It is also consistent with the practice of numerous international claims mechanisms, such as the United Nations Compensation Commission the Eritrea-Ethiopia Claims Commission, and reparations for victims of Nazism.
While para. 6(c) of UNGA Res. ES-10/17 states that to be eligible for inclusion in the Register, the claimed damage and loss must have “an established causal link to the construction of the wall”, para. 8(c) suggests that “establishing the credibility of the causal link” between the claims and the construction of the Wall is a function that belongs to the secretariat of the Office of the Register of Damage.
In line with the separation of functions between the Board and the secretariat, duly respected elsewhere in the resolution, determinations regarding credibility of the causal link between the damage and the construction of the Wall should be made by the Board and not the secretariat of the Register of Damage.
7. Standard of proof
The Board should apply a relaxed standard of proof. Under this standard, decisions of the Board should be based on the test of what is “plausible” rather than on traditional legal standards such as “preponderance of the evidence” or other similar standards.
This position is consistent with UNGA Res. ES-10/17, which specifically envisages that, when establishing the eligibility criteria, the Board should bear in mind “varying circumstances with regard to the title …of the claimants.” (Emphasis added)
This would be consistent with other international mass claims programmes. Such a relaxed standard of proof is often applied in combination with presumptions based on, or derived from, public knowledge of the event or the circumstances out of which the claims programme arises. The circumstances of the loss is indeed one of the key criteria applied in international mass claims programmes when determining whether a relaxed standard should be adopted.
8. Claims forms
The claims form(s) should be designed in such a way as to ensure that all the data relevant for the resolution of the claim is captured on the form(s). This will obviate the need to go back to the claimants for additional explanations and evidence, and thus will be more efficient for the Register.
The claims form(s) should also be structured so that the data can be compiled electronically. This will allow the management to obtain an overall view of the process and plan accordingly, which will enhance the manageability of the process.
As mentioned in my letter dated 22 August, the Palestinian National Committee would like an opportunity to discuss further these issues with the Board, specifically to comment on the draft rules, regulations, claims form(s) and other constitutive documents of the Register in advance of their finalization. While we would be happy to hold such consultations with the Board in Vienna, we urge you and the Executive Director to visit the OPT and Israel in advance of your deliberations on the design of the Register in order to gain a first-hand appreciation of the Wall and the challenges facing Palestinians affected by the Wall and the Register.
As mentioned in my previous letter, the Palestinian National Committee views the Register as a step towards full implementation of the ICJ Opinion, which requires Israel to stop constructing the Wall, to dismantle the parts already built, and to make reparations. To this end, the Committee reiterates its view that the Register should be provided as soon as possible with the authority to adjudicate claims and to make restitution and compensation awards.
In the meantime, in line with UNGA Res. ES-10/17, the Palestinian National Committee remains committed to “cooperat[ing] with the Office of the Register of Damage” “so as to facilitate its work in connection with the collection, submission and processing of damage claims in the Occupied Palestinian Territory, including East Jerusalem”. We welcome the opportunity to work with you to advance the operation of the Register in a timely manner.
We await your timely response.
Head of the Palestinian National Committee for the Register of Damage
December 5, 20007