Understanding “IMCCs”: Compensation and Closure in the Formation and Function of International Mass Claims Commissions

Author: 
Brilmayer, Lea
Place: 
Yale
Publisher: 
Yale University Press
Date published: 
2018
Record type: 
Journal Title: 
Yale Journal of International Law
Source: 
Yale Journal of International Law, Vol. 43, IssueNo. 2, Winter 2018, pp. 273-313
Abstract: 

International mass claims commissions ("IMCCs"), a relatively recent phenomenon, test the effective limits of international adjudication. They are large, administratively unwieldy, expensive to operate, and tasked with assignments that are extraordinarily difficult to carry out with any hope of accuracy. How successful they are--and what they are successful at--is still an open question. As ad hoc tribunals, IMCCs are simultaneously established by the parties and also dependent on the international community for support. While formation of such commissions seems motivated most immediately by claimants' private interest in compensation, IMCCs' functioning cannot be appreciated without reference to three additional interests of the community as a whole: deterrence, retribution, and closure. Out of these interests, the most important are likely to be compensation and closure; unfortunately, the two are often in tension with one another. This tension is illustrated by a comparison of the enforcement of three different IMCCs' awards. The Iran-U.S. Claims Tribunal (IUSCT), the United Nations Compensation Commission (UNCC), and the Eritrea-Ethiopia Claims Commission (EECC) have all been justly congratulated for resolving large numbers of legal claims under difficult circumstances. In one notable respect, however, the first two IMCCs were successful and the third was not: in the IUSCT and UNCC, compensation was ultimately received by the injured parties; at the EECC, the awards were never paid. The reasons relate to differences in the way that the instruments creating the three IMCCs were drafted. Reading between the lines, the expectations of the relevant parties--that is, the defendant States as well as the injured individuals--were very different. The IUSCT and UNCC were set up in ways that ensured payment to the injured parties; the EECC was set up in a way that made such individualized payment nearly impossible. This result is puzzling. In one case (the EECC), the parties--with the active involvement of the international community--apparently dedicated years of effort and millions of dollars to establish an adjudicative body that, after determining certain claims to be meritorious, actually left those claimants worse off than if there had been no commission at all. Moreover, the international actors that had deeply urged adjudication on the parties did not, in practice, seem to care whether the awards would ever be paid. In retrospect, however, this result seems to have been perfectly predictable. The explanation is that compensation, paradoxically, may not be the only reason--or, for some actors, the strongest reason--for establishing a mass claims commission; the more salient purpose, from the point of view of the international community, is likely to be closure.

Language: 
Subject profile : 

CITATION: Brilmayer, Lea. Understanding “IMCCs”: Compensation and Closure in the Formation and Function of International Mass Claims Commissions . Yale : Yale University Press , 2018. Yale Journal of International Law, Vol. 43, IssueNo. 2, Winter 2018, pp. 273-313 - Available at: http://library.africa-union.org/understanding-“imccs”-compensation-and-closure-formation-and-function-international-mass-claims

Printer-friendly version Send by email