Prisoners2

The State of Kuwait and the world at large, including the families of Kuwaiti and other prisoners, were devastated by the discovery of the remains of some of these prisoners buried in mass graves on Iraqi soil after the fall of Saddam Hussein's regime in 2003. This The tragedy highlighted the importance of international humanitarian law in addressing such crimes, the ways in which perpetrators can be held accountable, and the measures that should be taken to prevent the recurrence of such crimes in future armed conflicts. Therefore, we have structured this study as follows: Part One: International Responsibility for the Killing of Kuwaiti and Other Prisoners** - Chapter One: Violations of International Humanitarian Law by the Former Iraqi Regime and Coalition Forces -Section One: Violations by the Former Iraqi Regime of International Humanitarian Law in Attacking the Lives of Kuwaiti and Other Prisoners - Section Two: Violations by American-British Occupation Forces of International Humanitarian Law in the Case of Kuwaiti and Other Prisoners - Chapter Two: Harm Inflicted on Kuwaiti and Other Prisoners and Their Families -Section One: Harm Suffered by the States to Which These Prisoners Belong - Section Two: Harm Suffered by the Prisoners Themselves -Section Three: Harm Suffered by the Families of the Prisoners - Chapter Three: Casual Relationship Part Two: Effects of International Responsibility - Chapter One: Ineffective Remedies for Damage (Apology and Restoration to the Status Quo Ante) - Chapter Two: Effective Remedies for Redressing Harm through Cessation of Violations, Prosecution of War Criminals, and Compensation -Section One: Session of Attacks on the Lives of Kuwaiti and Other Prisoners - Section Two: Compensation as an Attempt to Redress the Suffering of the Families of Martyrs - First: The Harm That Warrants Compensation When the Lives of Prisoners Are Attacked - Second: The Legal Basis for Compensating the Families of Martyrs from Kuwaiti and Other Prisoners - Third: The Fair Compensation Due to the Families of Martyrs from Kuwaiti and Other Prisoners -Section Three: Prosecution of War Criminals as a Guarantee to Prevent the Recurrence of War Crimes - First: The National Jurisdiction of Iraq to Prosecute War Criminals - Second: The Jurisdiction of Temporary International Criminal Tribunals to Prosecute War Criminals - Third: The Jurisdiction of the Permanent International Criminal Court to Prosecute War Criminals

introduction

In ancient times, prisoners of war were considered the property of the capturing state, which had the right to treat them as it pleased, including the execution of the prisoners. However, this belief has become outdated and has been abolished by legal regulations and Islamic law. The prisoner has now become a trust and a responsibility that the capturing state must uphold, ensuring the prisoner's life and health until they can be returned to their home country. The distinguished legal status enjoyed by prisoners has led many individuals to seek this designation and the resulting fair treatment. Nonetheless, the bloodthirsty regimes that humanity has known have often disregarded the laws and customs of war and the legal developments aimed at protecting prisoners of war, and have not hesitated to kill them. It has been proven that the Nazi German regime, under the leadership of Hitler, killed prisoners from the Allied forces. Similarly, the international community was shocked by the discovery of a series of remains of Kuwaiti prisoners, beginning with the discovery of the first Kuwaiti prisoner, Saad Mishal Aswad Al-Anzi, on June 7, 2003. This was followed by the Iraqi side providing a list of 151 prisoners who were executed between 1990 and 1991, most of whom were Kuwaitis, along with five Saudis, during a meeting of the Tripartite Commission on Prisoners' Affairs. This discovery shattered any remaining hope of finding surviving Kuwaiti and other prisoners. In the face of such brutality and savagery, what is the stance of international humanitarian law, and what do its rules stipulate regarding such actions? International law documents, customs, and practices have established the concept of international responsibility resulting from any state's violation of international law rules. Based on this, international responsibility has been attributed to several subjects of international law (states and international organizations) concerning these violations. Indeed, international rulings have attributed international responsibility to certain states, as in the Corfu Channel case between Britain and Albania in 1947, and the United Nations attributed international responsibility to the State of Israel for the killing of Count Folke Bernadotte in 1948. However, the extent to which the violation of individuals' lives, within the framework of international humanitarian law, is considered sufficient grounds for holding a state accountable under international law has been a subject of debate. The international community, until relatively recently, was unable to move beyond the prevailing notion that the state entity is more sacred and higher than the individual entity, and therefore, a state could not be held accountable for harm done to individuals. However, the intense and sudden developments in international humanitarian law in the late 20th century refuted this idea, even retroactively. For instance, the Japanese began demanding the prosecution of American war criminals, Jews sought reparations for the actions of the Nazi regime against their ancestors, and Iraqis demanded accountability for the suffering they endured during the Ba'ath regime's rule. Thus, can the rules of international responsibility be applied to the case of the killing of Kuwaiti and other prisoners, and what are the conditions and implications of this responsibility? <>h4Part one: International responsibility for the killing of Kuwaiti prisoners and others Examining international responsibility in war crimes differs from traditional international responsibility. In the context of war crimes, international responsibility gives rise to two types of responsibility: international criminal responsibility and international civil responsibility. In contrast, traditional international responsibility primarily involves compensating for damages. In both types, responsibility must be attributed to a subject of international law as a prelude to holding war criminals accountable and ensuring compensation for those affected by these violations. Therefore, it is essential to discuss international responsibility before addressing criminal and civil responsibility. For international responsibility to be established and attributed to a subject of international law, there must be a wrongful act that causes harm, and a causal link must exist between the wrongful act and the harm. So, what are the violations that can be characterized as wrongful acts and attributed to any subjects of international law, and what are the resulting damages in the case of the killing of Kuwaiti and other prisoners?

Chapter One: Violations of the rules of law by the former Iraqi regime and coalition forces International humanitarian law is a mistake that gives rise to international responsibility

There is a consensus among international law scholars that international responsibility arises as a result of fault; however, some argue that harm alone is sufficient to establish international responsibility. Fault is defined as the violation by a subject of international law of its obligations under various branches of international law (public, economic, environmental, humanitarian) and its sources (international treaties, customary law, general principles agreed upon by civilized nations, principles of justice and equity, court rulings, and opinions of leading jurists and authors). International humanitarian law is one of the branches of international law and includes legal rules—such as the obligation to respect the right of prisoners to life and to treat them humanely—that bind state parties to these treaties, and sometimes even non-parties. So, what are the international obligations concerning the right of prisoners to life? When Iraqi forces invaded and occupied the State of Kuwait on August 2, 1990, they captured some Kuwaiti nationals, including members of the resistance, the regular army, armed forces, and the medical teams supporting them. According to the rules of international humanitarian law, the purpose of wars is not to annihilate enemy forces but rather to incapacitate them and capture as many of their troops as possible, ensuring their proper care until military operations end. Based on this, the Third Geneva Convention mandates the humane treatment and care of prisoners during captivity and their repatriation to their home countries at the earliest opportunity once military operations have ceased. Any attacks on prisoners' lives or attempts to endanger their lives constitute a clear violation of international humanitarian law. According to the Third Geneva Convention regarding the treatment of prisoners of war, the following categories of persons are considered prisoners of war: Prisoners of war, within the meaning of this Convention, are persons belonging to one of the following categories, who have fallen into the hands of the enemy: 1. Members of the armed forces of a party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces. 2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that these militias or volunteer corps, including such organized resistance movements, fulfill the following conditions: a. They are commanded by a person responsible for their subordinates, b. They have a fixed distinctive sign recognizable at a distance, c. They carry arms openly, d. They conduct their operations in accordance with the laws and customs of war. 3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the detaining power. 4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labor units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces they accompany. 5. Members of crews, including masters, pilots, and apprentices, of the merchant marine and the crews of civil aircraft of the parties to the conflict, who do not benefit from more favorable treatment under any other provisions of international law. 6. Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. The following shall likewise be treated as prisoners of war under this Convention: 1. Persons belonging, or having belonged, to the armed forces of the occupied country if the occupying power considers it necessary to intern them on account of their allegiance, even though it has initially left them at liberty while hostilities were going on outside the territory it occupies, particularly in cases where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with the intent of internment. 2. Persons belonging to one of the categories enumerated in this Article, who have been received by neutral or non-belligerent powers on their territory and whom such powers are required to intern under international law, without prejudice to any more favorable treatment which these Powers may choose to accord, and with the exception of Articles 8, 10, 15, the fifth paragraph of Article 30, Articles 58-67, 92, 126, and those provisions concerning the Protecting Power where there exists a diplomatic relationship between the parties to the conflict and the neutral or non-belligerent Power concerned. Where such diplomatic relations exist, the parties to the conflict to which these persons belong shall be allowed to perform in lieu of the Protecting Power the functions which are incumbent on the latter under this Convention, without prejudice to the duties incumbent on the said Power under the conventions and agreements relative to the status of protected persons. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of this Convention. Even civilians who do not fall under these categories must be treated with a higher and better standard than that afforded to lawful combatants. However, the discovery of the remains of some of these prisoners after the liberation of Kuwait and Iraq sparked discussions about international responsibility for the deaths of these prisoners. With the emergence of the remains of the first Kuwaiti prisoner in June 2003, the hypothesis that Kuwaiti prisoners had been martyred in Iraq began to dominate discussions about their fate. In fact, if their martyrdom is confirmed, the responsibility for their deaths could fall under one of the following scenarios: 1) They were executed under the former Iraqi regime. 2) They died due to a lack of proper medical care or humane treatment. 3) They suffered fatal injuries during the combat operations to liberate Iraq in 2003. 4) They died due to a lack of medical care and food in secret prisons after the fall of the regime in 2003. Under each of these hypotheses, international humanitarian law imposes responsibility for these deaths, which is distributed according to the rules of international humanitarian law governing the conduct of combatants among the parties to the conflict. This includes the remnants of the former Iraqi regime and the coalition forces (the 1991 coalition led by the United States and the 2003 coalition forces led by the United States and Britain). The key question is whether these forces complied with international humanitarian law. What are the rules that prohibit attacks on the lives of prisoners?

First section: The Iraqi regime takes precedence over the rules of international law by attacking the family lives of Kuwaitis and others

Indeed, Iraq's responsibility for the killing of Kuwaiti prisoners is confined to the period between the occupation of Kuwait in 1990 and the liberation of Iraq in 2003. The responsibility of the former Iraqi regime under the Third Geneva Convention regarding the treatment of prisoners of war includes the killing or torture of prisoners leading to their death, holding them in unsafe places targeted by the enemy's military machinery, and failing to provide necessary food and care in the event of the regime's collapse and the difficulty of reaching them by the occupying authorities. 1) The Iraqi regime's obligation not to kill or execute prisoners: The killing or execution of prisoners is prohibited under international humanitarian law. This prohibition extends to torture and inhumane or degrading treatment that could lead to death. Article 3 of the Third Geneva Convention states that the following acts are prohibited and shall remain prohibited at any time and in any place with respect to prisoners: "a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture." Furthermore, Article 130 of the Third Geneva Convention considers attacks on the lives of prisoners as a serious violation of international humanitarian law. Article 130 enumerates serious violations as including "1- willful killing, 2- torture or inhumane treatment, including biological experiments, 3- willfully causing great suffering or serious injury to body or health, 4- compelling a prisoner of war to serve in the forces of a hostile power, 5- willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in the Convention." This view is supported by Article 8 of the Rome Statute of the International Criminal Court, which states that war crimes include serious violations of the Geneva Conventions of 12 August 1949, including "willful killing." Thus, the analysis of the bodies of the martyrs, which confirmed their execution during the period between 1991 and 1992, supports the conclusion that the former Iraqi regime violated these provisions. The confirmed execution of five Saudi prisoners between 1990 and 1991 is another flagrant violation of these obligations. Similarly, any remains discovered after the liberation of Kuwait, which are medically proven to have died as a result of execution, torture, or mistreatment leading to death during the period from Iraq's occupation of Kuwait in 1990 to the liberation of Iraq in 2003, would establish Iraq's responsibility for violating these provisions. Indeed, medical examinations of the remains of prisoners discovered in mass graves after the liberation of Iraq revealed that all of them were executed by a gunshot to the back of the head. Furthermore, the killing of Kuwaiti prisoners by members of the former Iraqi regime could constitute a violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide if it is proven that these Kuwaiti prisoners or others were targeted and killed based on their nationality, with the intent to destroy, in whole or in part, the Kuwaiti people. This is particularly significant given that the former regime did not wish to recognize Kuwait's statehood and independence, and therefore the nationality of its citizens. The intention of the Iraqi regime to erase and destroy Kuwaiti identity was confirmed by UN Security Council Resolution 677/1990, which condemned Iraq's attempts to alter the demographic composition of Kuwait. The actions of the former Iraqi regime against Kuwaiti citizens who fell into its hands are not unlike those committed by the Serbs against Bosnian Muslims during the ethnic cleansing campaign in the Balkans between 1991 and 1993. 2) The Iraqi regime's obligation to take precautionary measures to protect the lives of prisoners: If it is proven that the Iraqi regime did not follow the procedures outlined in international humanitarian law to protect the lives of Kuwaiti prisoners and others, it must bear responsibility for their injury or death as a result of bombing by the U.S.-British coalition forces during Operation Desert Storm in 1991 or during Operation Iraqi Freedom in 2003. Article 23 of the Third Geneva Convention states that "No prisoner of war may at any time be sent to, or detained in areas where they may be exposed to the fire of the combat zone, nor used to render certain points or areas immune from military operations. Prisoners of war shall have shelters against air bombardment and other hazards of war to the same extent as the local civilian population. They may move to such shelters as quickly as possible, except when their presence would expose them to greater danger. The Detaining Power shall give the Power concerned information about the geographical location of prisoners of war camps as often as possible through the intermediary of the Protecting Power. Whenever military considerations permit, the prisoners of war camps shall be marked with the letters PW or PG, so as to be clearly visible from the air. Only prisoners of war camps shall be marked in this way." It is clear that this provision aims to protect prisoners by marking their camps with internationally recognized symbols (PW: Prisoners of War) (PG: Prisonniers de Guerre), visible from the air both day and night, to prevent enemy aircraft from bombing them. The protection measures in this provision go beyond these boundaries and require the Detaining Power to communicate—through the Protecting Power or the International Committee of the Red Cross—with the enemy state regarding the geographical location of these camps to eliminate any arguments about the visibility of these international symbols from the air. During World War II, the warring parties refused to provide such information to the enemy, arguing that it gave a significant advantage to their adversaries, who might attempt to attack these camps to free the prisoners or drop weapons to them, thus endangering the Detaining Power. Article 19 of the Third Geneva Convention also provides similar protection for prisoners, stating that "Prisoners of war shall be evacuated as soon as possible after their capture, and they shall be moved to camps far enough from the combat zone for them to be out of danger." It is noteworthy that these provisions do not specify the distance by which prisoners must be removed from combat zones but instead use the term "out of danger," leaving the matter to be determined based on the circumstances of the conflict and its developments. For example, the distance that was considered safe for prisoners of war in 1945 would not be sufficient to provide safety during wars in 2003, as weapons have evolved, their range has increased, and their dangers have grown accordingly, increasing the risks faced by prisoners. The discretion exercised by a military commander in determining the safe distance at which prisoners must be kept from combat zones is subject to review by national or international criminal courts, which may charge the commander with misjudgment and for holding prisoners within the range of military operations. Accordingly, if it is proven that Kuwaiti prisoners died as a result of coalition bombing of Iraq during the liberation of Kuwait in 1991 or during Operation Iraqi Freedom in 2003 because of the proximity of their detention sites to military operations, the Iraqi regime would be responsible for their deaths. This responsibility is heightened by reports received by Kuwait indicating that its prisoners were used as human shields by Iraq in 1991. Although proving Iraq's actual commission of such violations is challenging, given that the remains of most Kuwaiti prisoners were returned 13 years after their deaths, making it difficult to ascertain the true extent of the suffering they endured. Moreover, if it is proven that the Iraqi regime did not relocate Kuwaiti prisoners and others away from strategic military sites, such as military bases and weapons of mass destruction facilities, which could result in their deaths due to coalition bombing, the responsibility lies with the Iraqi regime, not the coalition forces, as it violated the provisions of international humanitarian law mentioned above. However, if Iraq can prove its compliance with these protective measures and coalition forces still targeted the prisoner camps and detention sites, the responsibility would then shift from the Iraqi regime to the coalition forces, which will be discussed in detail later. If it is also proven that the Iraqi regime moved Kuwaiti prisoners and others to sensitive locations to use them as human shields to prevent the bombing of presidential palaces or targeted military sites, Iraq would also be responsible for their deaths, even if they fell victim to coalition fire, as it failed to protect them and relocate them to safe areas. This behavior would not be surprising for the Iraqi regime, which had a history of holding some Western nationals under the guise of "guests of Iraq" in 1991, threatening to use them as human shields to prevent the bombing of sensitive sites in Iraq. The regime also used Iraqi civilians as human shields in 1991 to protect a military communications center, constructing a shelter for civilians on top of it in the Al-Amiriyah neighborhood of Baghdad, resulting in the deaths of more than 100 civilians. Similar tragedies occurred in 2003, where the Iraqi president held meetings in residential areas, leading to the bombing of residential areas in Baghdad's Al-Hillah district, causing dozens of civilian casualties. It is worth noting that Article 23 of the Third Geneva Convention sought to provide prisoners with protection no less than that enjoyed by civilians, aiming to elevate the level of protection granted to prisoners to that of civilians. Consequently, if civilian protection relies on the protection offered by the warring parties according to their capabilities, both prisoners and civilians would be in peril, as some warring parties do not provide civilians with even the minimum level of protection and may argue that the protection afforded to civilians is insufficient to preserve their lives, making it impossible to demand more for prisoners. However, if the protection enjoyed by civilians is based on international humanitarian law standards (the Fourth Geneva Convention of 1949 and the Additional Protocols I and II of 1977), the standard is objective and achieves the desired protection for both prisoners and civilians without tying it to the military strategy adopted by the warring parties. For instance, local civilians in Iraq do not enjoy the same protection as those in New York City. Thus, if the Iraqi regime were required to provide prisoners with protection no less than that enjoyed by local civilians in Iraq, it would be akin to sentencing all prisoners to death, 3) Provision of Necessary Healthcare to Preserve the Lives of Prisoners The lives of prisoners may be endangered by life-threatening illnesses or deadly infections, leading to death due to the lack of necessary healthcare. Article 29 of the Third Geneva Convention states that "the detaining power is obliged to take all necessary measures to ensure the cleanliness and healthfulness of camps and to prevent epidemics." Thus, if it is proven that a prisoner’s death resulted from illness or a failure to provide the necessary care or a healthy environment to prevent the spread or worsening of diseases, the responsibility lies with the detaining power. Iraq held Kuwaiti and other prisoners between August 1990 and May 2003. Afterward, the international responsibilities of Iraq were transferred to the occupying powers—the United States and the United Kingdom—from the occupation of Iraq and the fall of the Iraqi regime in May 2003 until the present time. Article 30 of the Third Geneva Convention went further by allowing the delay of a prisoner's release to provide necessary healthcare to prevent death, stating: "Prisoners of war who suffer from serious diseases or whose condition requires special treatment, surgical operations, or hospital care shall be transferred to any military or civilian medical unit where such treatment can be given, even if it is expected that they will be returned to their own country shortly." The advantage of this provision is that it places the responsibility on the detaining power to provide full healthcare to the prisoner to ensure their continued survival. The detaining power cannot evade its responsibility by claiming the imminent release of the prisoner to avoid treatment and healthcare obligations. Therefore, the prisoner’s best interest is decisive in determining whether to release or keep the sick prisoner in custody for treatment and healthcare. According to Article 109 of the Third Geneva Convention, if it is proven that a prisoner is suffering from a serious illness or injury, the detaining power is obligated to return them to their country after receiving the necessary treatment and healthcare to enable them to travel. If it is proven that a Kuwaiti or other prisoner died from illness or a serious injury without receiving the necessary treatment, or if they died during the journey back to Kuwait or other countries without receiving adequate treatment to assist them in completing the journey, the responsibility for this death lies with the Iraqi regime. However, the remains of Kuwaitis and others discovered in Iraq confirm their death was due to a gunshot wound to the back of the head. 4) Iraq’s Violation of Procedures Concerning the Death of Prisoners of War Section III of Part IV of the Third Geneva Convention is dedicated to the death of prisoners of war. This section outlines everything related to prisoners' wills, the procedures to dispel any ambiguity regarding their death, the rituals of their burial, and the transfer of their remains to their home country, which we will discuss in detail, along with the Iraqi regime's stance on these procedures. a) Prisoners’ Wills According to Article 120 of the Third Geneva Convention, prisoners of war's wills must be recorded during their captivity. After the prisoner’s death and upon their request, the will must be promptly forwarded to the protecting power or the International Red Cross, and an authenticated copy must be sent to the Central Information Agency. Article 120 of the Third Geneva Convention states: "The wills of prisoners of war shall be drawn up so as to satisfy the conditions of validity required by the legislation of their country, which shall take steps to inform the detaining power of these conditions. At the request of the prisoner of war, and in all cases after his death, the will shall be forwarded without delay to the protecting power, and a certified true copy shall be sent to the Central Information Agency." Iraq should have encouraged all Kuwaiti and other prisoners to draw up their wills, especially since Iraq, under the previous Saddam Hussein regime, was aggressive and subject to repeated attacks by coalition forces, the most recent of which occurred in 2003, exposing the prisoners to the possibility of fatal injuries, if not executed by the regime itself. Iraq did not comply with this procedure concerning the martyred prisoners from Kuwait and others, as it did not request them to prepare their wills, despite the evidence of executions for those whose remains were recovered. Additionally, these wills did not reach the prisoners' families, neither from the protecting state nor from the International Red Cross. b) Clarifying the Ambiguity Surrounding the Death of Prisoners It must be confirmed that the prisoner’s death was natural and not due to neglect in providing healthcare or as a result of an assault that led to their death or execution. This is verified according to Article 120 of the Third Geneva Convention by conducting "a medical examination of the body to establish the cause of death and to enable a report to be made and identify the deceased." Article 121 of the Third Geneva Convention also emphasizes this by stating: "The detaining power shall conduct an official and urgent inquiry into any death or serious injury of a prisoner of war caused or suspected to have been caused by a sentry, another prisoner of war, or any other unknown cause. A report on this matter shall be forwarded without delay to the protecting power. Witnesses' statements, especially those of prisoners of war, shall be included in the report, which shall be transmitted to the protecting power." The importance of these procedures and the resulting reports lies in confirming that the detaining power did not neglect the prisoner’s care and did not cause their death in any way. If the report indicates otherwise, it can be used in the relevant criminal courts to prosecute war criminals responsible for the prisoner’s death. Despite evidence of the murder of Kuwaiti prisoners of war and others whose remains were found with gunshot wounds to the head, no criminal investigation was conducted into the circumstances of this killing to confirm the Iraqi regime's adherence to Articles 120 and 121 of the Third Geneva Convention. It is important to distinguish between the medical examination of the body, as outlined in Article 120, and the criminal investigation adopted by Article 121 in the event of prisoners' deaths. The former, under Article 120, follows a non-sudden death, such as dying after a period of illness, while the latter, under Article 121, is associated with a suspected criminal act leading to sudden or mysterious death, necessitating the matter's referral to criminal courts if such suspicion is confirmed. Article 121 also states that "if the investigation finds that one or more persons are responsible, the detaining power must take judicial action against the responsible person or persons." c) Burial of Prisoners’ Bodies The burial of prisoners is of utmost importance as it involves respecting the deceased, ensuring the prisoners' families can easily locate their graves, visit them, and perform any relevant religious rituals, and ensuring they are buried with appropriate respect. The detaining power must prepare death certificates for prisoners according to the model attached to the Third Geneva Convention, which must include "the identity of the deceased, place and date of death, cause of death, place, and date of burial, as well as all necessary information to identify the graves." The detaining power’s compliance with this procedure would respect the feelings of the prisoners' families who await their sons’ release, as it facilitates the task of locating the prisoners' graves for transferring their remains and makes identifying and distinguishing their bodies easier. Regarding the method of burying deceased prisoners, Article 120 of the Third Geneva Convention states: "The detaining authorities shall ensure that prisoners of war who have died in captivity are honorably buried, if possible according to the rites of the religion to which they belonged, that their graves are respected, properly maintained, and marked in such a way that they can always be recognized. Whenever possible, deceased prisoners of war who belonged to the same State shall be buried in the same place. Deceased prisoners of war shall be buried in individual graves unless unavoidable circumstances require the use of collective graves. Bodies may only be cremated where imperative reasons of hygiene or the prisoner’s religion so require, or in accordance with his express wish." Given the evidence of Kuwaiti prisoners' bodies being buried with civilians, military personnel, opposition members, and criminals without distinction and without identifying their identities in mass graves in various parts of Iraq, such actions constitute a clear violation by the Iraqi regime of Article 120 of the Third Geneva Convention. The importance of the procedures outlined in Article 120 was highlighted by the difficulties faced by the Iraqi and Kuwaiti search and inspection teams in locating the bodies of their sons who were detained in the previous Iraqi regime’s prisons among the remains found in mass graves in Iraq after its liberation, particularly in Najaf, Karbala, Basra, Kirkuk, and Samawah. The Kuwaiti prisoner search team faced tremendous challenges in identifying the bodies of Kuwaiti prisoners due to the sheer number of bodies found and their mixing with others. DNA samples were sent to some European countries to identify the remains. Had the Iraqi regime followed the procedures specified in Article 120, the task of identifying and locating bodies across the vast lands of Iraq would not have been so challenging. Preservation of Prisoners' Graves and the Transfer of Their Remains It is essential to protect the graves of prisoners from tampering. Article 120 of the Third Geneva Convention states that all information related to burials and graves must be recorded by a grave administration established by the detaining power. This administration must provide the state of the deceased prisoners with lists of graves and information regarding prisoners of war buried in cemeteries or other locations. However, Kuwait did not receive any information from the grave administration in Iraq regarding the burial sites and related details of Kuwaiti prisoners. This constitutes a violation of Article 120 of the Third Geneva Convention, which has led to delays in finding the remains of the Kuwaiti martyrs and others, some of which have been discovered, while others remain missing. 5) Martens Clause The Martens Clause refers to the provision included in most international humanitarian law treaties, which has become customary in the ethics and conduct of combatants. It imposes on combatants the need to uphold morality, humanity, and a high sense of human compassion in situations not explicitly covered by international humanitarian law treaties. The Third Geneva Convention adopted the Martens Clause in Article 142, which states that withdrawal from this Convention does not affect the obligations that the parties to the conflict must continue to fulfill in accordance with the principles of international law derived from established customs among civilized nations, from the laws of humanity, and the dictates of public conscience. Based on this provision, the killing of unarmed individuals during their capture or endangering their lives does not align with the obligations of the Martens Clause, which mandates adherence to humanitarian laws and public conscience. Humanity and public conscience do not sanction the killing of an unarmed person, especially after they have trusted the detaining power and surrendered in the hope of securing their right to life. It is also a well-established custom in armed conflicts that unarmed individuals, including prisoners, should not be killed. This principle is affirmed by the four Geneva Conventions, which consider certain acts as grave breaches because they violate the customs and traditions of armed conflicts. The Conventions state that: "The grave breaches referred to in the preceding Article shall include any of the following acts if committed against persons or property protected by the Convention: willful killing, torture or inhumane treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the armed forces of the hostile Power, or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention." Thus, the killing of prisoners falls under this provision agreed upon in the four Geneva Conventions as a custom and ethic of combatants. Violating it constitutes an extraordinary breach, a grave breach subject to harsher penalties than simple violations of the four Geneva Conventions. Consequently, such killings may be included under the Martens Clause in cases where a specific treaty is silent or where the violation occurs by a non-member state. The Martens Clause does not exempt them from international accountability.

The second topic: Violations of the rules of international humanitarian law by the American-British occupation forces through the issue of Kuwaiti prisoners and others

Responsibilities of U.S.-British Forces in Preserving the Lives of Kuwaiti and Other Prisoners in Iraq The U.S.-British forces are obligated to preserve the lives of Kuwaiti and other prisoners held in Iraq by adhering to the laws of war, which include not targeting prisoner-of-war camps marked with internationally recognized symbols and respecting the geographical locations provided by the enemy forces where prisoners of war are held. Furthermore, as occupying powers under UN Security Council Resolution 1483/2003, they must assume the responsibilities of the former Iraqi regime in respecting international law, particularly humanitarian law, and safeguarding the lives of prisoners in Iraq. 1) Bombing of Prisoner-of-War Camps and Protected Sites If it is conclusively proven that the Iraqi regime adhered to international humanitarian law requirements regarding the detention of prisoners as per Articles 22-25, and that it marked prisoner-of-war camps with distinctive signs visible from the air as stipulated in Article 23 of the Third Geneva Convention, then these sites should not have been targeted. Article 23 states: "Whenever military considerations permit, prisoner-of-war camps shall be marked during the day with the letters PW or PG in a manner visible from the air. However, the interested parties may agree on any other means of identification. Only prisoner-of-war camps shall be marked in this way." If it is proven that U.S.-British coalition pilots, during the bombing of Iraq from August 1990 to May 2003, saw the international markers for prisoner-of-war camps or detention sites and did not refrain from bombing these locations, this would be sufficient to hold the United States and the United Kingdom internationally responsible for the deaths of Kuwaiti prisoners or others. This is due to their disregard for their international obligation to respect and not target these camps under any circumstances. The coalition forces are also required to respect and avoid targeting the geographical sites provided by Iraq as per Article 23 of the Third Geneva Convention, which are designated for the detention of prisoners. If coalition forces targeted these sites despite being provided with coordinates by Iraq, this would trigger international responsibility for the coalition states. 2) Failure to Provide Adequate Protection for Prisoners Since Iraq was effectively under the control of U.S.-British occupying forces, these states must fully assume their obligations and responsibilities as occupying powers under the Fourth Geneva Convention and UN Security Council Resolution 1483/2003. According to Article 12 of the Third Geneva Convention: "Prisoners of war are under the authority of the hostile State, not of the individuals or military units who captured them. Apart from any individual responsibilities that may exist, the detaining State is responsible for the treatment of prisoners." This provision places responsibility on the hostile or detaining State, not on individuals, making the State liable for any mistreatment or killing of prisoners. Given that Iraq was under U.S.-British occupation, these countries are responsible for any killings of Kuwaiti prisoners or others during the occupation. As of the preparation of this study, the remains of Kuwaiti prisoners discovered date back to 1990-1991, so the United States and Britain are still potentially liable for international responsibility for the deaths of Kuwaiti prisoners. 3) Neglect by the U.S. and U.K. in Finding Kuwaiti Prisoners The occupying state bears all consequences of its occupation, including fulfilling all obligations and assuming the burdens and responsibilities imposed by international law. The principle "to benefit is to bear the cost" means that while the U.S. and U.K. benefited from Iraq's oil resources and reconstruction contracts, they must also bear the cost of ensuring Iraq's security and the safety of its inhabitants, including Kuwaiti and other prisoners. Article 13 of the Third Geneva Convention states: "Prisoners of war must be treated humanely at all times, and the detaining State is prohibited from committing any unlawful act or neglect that causes the death of a prisoner in its custody." The term "detaining State" here applies to the U.S. and U.K., which controlled the detention camps and sites. The responsibility of the detaining State extends beyond preventing the killing of prisoners to include any neglect leading to their deaths. Post-Iraqi regime events revealed a glaring neglect by occupying forces in searching for Kuwaiti prisoners. When the U.S. forces entered Iraq, they prioritized their own interests, such as extinguishing oil well fires in southern Iraq and securing oil rights in Kirkuk. Significant efforts were directed at locating weapons of mass destruction. Meanwhile, U.S. and U.K. prisoners were prioritized in searches, while Kuwaiti and other prisoners' search efforts were left to Kuwait, allowing the occupying forces to focus on their own interests. 4) Neglect of Kuwaiti Prisoners' Graves Under international humanitarian law, the state controlling the territory is responsible for maintaining the graves of deceased prisoners. Article 120 of the Third Geneva Convention states: "The State controlling the territory, if a Party to the Convention, shall be responsible for caring for these graves and for recording any subsequent movements of the bodies." However, it has been observed that the U.S. and U.K., as the controlling states of Iraq, failed in this role. Reports from residents of Najaf indicate that they notified U.S. authorities about a mass grave containing thousands of bodies, but no action was taken, leading civilians to exhume the bodies without intervention from U.S. forces. This negligence by the U.S. and U.K. constitutes a joint violation of Article 120, complicating the task of locating the remains of Kuwaiti martyrs in these graves.

Chapter Two: The harm caused to Kuwaiti prisoners, others, and their families

Damage to the States to Which the Prisoners Belong The damage suffered by the states to which these prisoners belong is reflected in the loss of their citizens, who are integral to the functioning of various institutions. This damage is exacerbated when the prisoners are highly skilled individuals whose replacement is nearly impossible, such as those with unique or exceptional qualifications. For instance, Dr. Mutlaq Al-Mutairi, a Kuwaiti prisoner, was a faculty member in the Department of International Law with a Ph.D. from the United Kingdom. Finding a similar replacement for such expertise is extremely challenging. Additionally, the differential treatment of prisoners, where some are executed due to their nationality while others are treated with more respect and dignity, tarnishes the reputation and prestige of the state. The detaining state, from its perspective, classifies certain states as inferior. This was evident during Iraq's occupation of Kuwait, where the Iraqi regime sought to use citizens of Western countries as human shields while referring to them as "guests of Iraq" and providing them with comfort, including accommodation in top hotels and entertainment, ultimately releasing them unharmed. In contrast, Kuwaiti, Iranian, and Lebanese prisoners faced inhumane treatment. Reports from prisoners who escaped during the 1991 uprising and the discovery of coffins filled with Iranian prisoners’ bodies during the 2003 invasion of southern Iraq highlight the brutality of the regime. Mass graves across Iraq revealed that most of those whose remains were found had been executed by shooting them from behind. Such discrimination creates an impression among the international community and the public that Western countries are more esteemed and respected, undermining the dignity of other states. This can encourage similar violations by others in conflicts, especially if these states do not take necessary measures to remedy the damage and punish the perpetrators. Inhumane treatment of prisoners and failure to engage in exchange operations or to clarify their fate can divert the attention of the state to which the prisoners belong, focusing national, regional, and international efforts on the prisoner issue. These violations also impose financial costs on the state through the formation of committees, agencies, and teams to address prisoner affairs. For example, after the liberation of Kuwait, the National Committee for Kuwaiti Prisoners and Hostages, the National Assembly's Prisoner Affairs Committee, the Public Authority for Compensation, and search teams were established. Membership in regional and international committees for finding prisoners and their remains, particularly if the violating state has a low level of political and legal discourse, can lead to accusations and use of unrefined methods to describe the state to which the prisoners belong, violating its international reputation and status. The damage extends beyond the state to affect the prisoners themselves.

The second topic: The harm to which the prisoners themselves were exposed

Damage to the Prisoners' Families Eighteen years after the invasion of Kuwait and the emergence of the issue of Kuwaiti and other prisoners, the saying "the martyrs among the prisoners have died and found rest, but their families continue to suffer daily" has become prevalent. Indeed, the daily suffering of the families of prisoners drives local and international efforts to address the prisoner issue. Similarly, families of victims of international crimes, such as the collapse of the World Trade Center, Lockerbie, and the French plane over Niger, have contributed to financial settlements and criminal sanctions for these crimes. What is the damage inflicted on the families of the prisoners due to the death of their loved ones? Determining the damage varies from case to case, depending on the individual's social status, family size, marital status, number of children, whether they are the sole provider, their professional position, and other circumstances that require individual consideration. However, common damages for the families of prisoners include the deprivation of living with their loved ones. Parents are deprived of enjoying their child's presence, children are deprived of growing up under the care of one or both parents, and spouses are deprived of the support and companionship of their partner. This leads to psychological effects that hinder their integration into society and difficulty in rehabilitation. The imprisonment of an individual in a community with a population of just over one million Kuwaitis can destabilize the prisoner and their family. The most painful aspect is the continuous hope for the return of the prisoners, fueled by statements from local and international officials. Families prepare for the renewed hope of their return, only to have that hope fade again, leading to significant psychological damage and despair. Unlike the families of victims of the World Trade Center attack, Lockerbie, and the French plane explosion, who knew of their loved ones' deaths, the families of Kuwaiti prisoners have endured prolonged uncertainty for eighteen years. Additionally, the families of prisoners have been denied the right to bury their loved ones according to Islamic rites and to know their burial places for visitation and prayers, especially after the mass graves revealing the remains of Kuwaiti martyrs. International jurisprudence requires two conditions for families to claim compensation for the death of their loved ones: 1) There must be economic dependence, proven by the deceased's financial support for their family. For example, the Mexican-French Committee rejected a claim by a brother for material damage from his sibling's death, as the victim lived only with his wife, who had the right to claim damages. 2) There must be a legal relationship between the deceased and the claimant. In this case, a strong relationship like motherhood is sufficient to compensate the mother for the damage caused by the loss of her son after prolonged waiting. States can use the damage suffered by their citizens (prisoners and their families) as a legal basis for internationalizing the issue of prisoners and their families' claims for compensation. The Permanent Court of International Justice has noted: "Les dommages subi par le particulier n’est donc jamais identique en substance a celui qui l’Etat subi, il ne paut que fournir une mesure convenabble de la reparation due a l’Etat." Chapter Three: Causal Relationship The causal link between the wrongful act and the damage must be established beyond doubt. The damage must be a direct result of the wrongful act attributed to an international legal person, without interference from factors that could sever this causal link. The death of prisoners must be a direct result of the state's violation of its obligations under international humanitarian law, particularly the Third Geneva Convention concerning the protection of prisoners of war. For example, if a prisoner held by Iraqi forces died due to a coalition airstrike on a prisoner camp designed according to Geneva Convention standards, the causal link between unlawful detention and the failure to initiate prisoner exchanges would be severed. However, a causal link would exist between the coalition airstrike on prisoner camps and the death of the prisoner. The challenge in proving the causal relationship between the violations of the former Iraqi regime of international humanitarian law and the airstrikes on sites that may have held Kuwaiti and other prisoners is significant. The complex chain of causation is not always clear, as human behavior often intervenes and disrupts or at least affects the causal link. Part Two: Effects of International Responsibility Compensating for damage caused by violations of state obligations under international law is crucial and a way to activate legal rules in general and international law specifically. The effects of international responsibility regarding attacks on prisoners' lives include cessation of the violation, restoration to the original state, satisfaction, and compensation. Chapter One: Ineffectiveness of Satisfaction or Restoration Satisfaction is one of the effects of international responsibility and can take various forms depending on the type of violation. Satisfaction can be through public apologies, including direct or indirect expressions of regret. It may also involve replacing the diplomatic representative responsible for the violation or punishing the individuals responsible. An apology might involve raising the level of diplomatic representation between the two countries. Satisfaction is acceptable for non-material (moral) damage, such as violations of a state's moral standing through attacks on its facilities abroad, burning its flag, or physical or moral harm to its leaders or representatives. Satisfaction addresses the damage to the state in these cases. However, the death of prisoners cannot be fully addressed through satisfaction. While an apology may address the damage to a state's reputation from the killing of its prisoners, it cannot compensate for the harm suffered by the prisoners and their families. Restoration to the original state is also impractical for prisoners who were killed during their detention by the Iraqi regime.### Chapter Two: Cessation of Aggression, Compensation, and Criminal Trials as Effective Measures in Redressing Violations Against the Lives and Safety of Prisoners The killing of prisoners is a war crime according to the rules detailed in Chapter One of this study, and it should never occur under any circumstances or justifications. In accordance with international law, redress for harm includes the cessation of ongoing violations. Therefore, Iraq must refrain from killing prisoners under any circumstances and must immediately halt such practices from the onset of Kuwaiti-Iraqi negotiations under the auspices of the International Committee of the Red Cross. Consequently, any executions of Kuwaiti prisoners after the commencement of these negotiations cannot be justified by any Iraqi claims and can only be seen as a clear determination to violate international humanitarian law. Restoration to the original state is considered the best legal remedy for international responsibility, which is impossible in the case of the death of prisoners. Apology is another legal remedy concerning international responsibility, but it cannot be accepted by the families of Kuwaiti martyrs and other prisoners. Although an apology might be received positively by most governments, including the Kuwaiti government, it does not compensate for the harm done to the reputation and dignity of the government due to the attack on its citizens' lives. Compensation through financial reparations for the families of Kuwaiti martyrs and others is the least that can be expected from the new Iraqi government, in recognition of the human suffering endured by the families of the Kuwaiti prisoners and others. Section One: Legal Basis for Compensating the Families of Kuwaiti Prisoners Compensation is a recognized right under both international and domestic law as a result of breach of obligations that causes harm to the rightful party. Some international legal scholars have argued that the mere occurrence of harm due to a violation of international law is sufficient to necessitate compensation for the victims of these violations. Therefore, compensating prisoners and their families for damages suffered due to violations of international humanitarian law is a natural consequence of breaching these rules, even if there is no explicit text mandating such compensation. However, this does not preclude the existence of specific legal rules guaranteeing compensation for victims in cases of breaches of international law. 1) The Hague Convention IV of 1907: The Hague Convention IV of 1907, concerning the Laws and Customs of War on Land, stipulated in Article 3 the principle of compensation for violations of international humanitarian law. This article states: A belligerent Party which violates the provisions of the … Regulations –Respecting the Laws and customs of War on Land – shall, if the case demands, be liable to pay compensation… Section One: Legal Basis for Compensating the Families of Kuwaiti Prisoners (continued) Additional Protocol I to the Geneva Conventions: Additional Protocol I to the Geneva Conventions, adopted in 1977, is considered one of the most important rules governing international armed conflicts. This protocol incorporates the same text as the Hague Convention IV regarding compensation for violations of international humanitarian law. This reiterates that compensating victims of armed conflicts remains significant, even seventy years after the adoption of the Hague Convention IV. International Law Commission Draft Articles on International Responsibility: Article 44 of the Draft Articles on International Responsibility by the International Law Commission of 1996 states: [Here, insert the English translation of Article 44 if you have it available, or continue with a general explanation of its provisions if you don't.] 1. The injured State is entitled to obtain from the State which has committed an internationally wrongful act compensation for the damage caused by that act, if and to the extent that the damage is not made good by restitution in kind. 2. For the purposes of the present article, compensation covers any economically assessable damage sustained by the injured State, and may include interest and, where appropriate, loss of profits. ### Chapter Two: Stopping the Aggression, Compensation, and Criminal Prosecution as Effective Measures to Redress the Violation of the Life and Safety of Prisoners The killing of prisoners of war is considered a war crime according to the rules discussed in Chapter One of this study, and it should never occur under any circumstances or justifications. Redressing the harm according to international law involves stopping the ongoing aggression. Thus, Iraq must cease killing prisoners under any circumstances and must stop such practices immediately since the start of Kuwaiti-Iraqi negotiations under the auspices of the International Committee of the Red Cross. Any executions of Kuwaiti prisoners after the commencement of these negotiations cannot be justified by any Iraqi explanations and reflect a blatant disregard for international humanitarian law. Restoring the situation to its prior state is the most effective legal remedy for international responsibility, but this is impossible in the case of deceased prisoners. An apology is another legal remedy for international responsibility, but it cannot be accepted by the families of the Kuwaiti martyrs and others. Although an apology might be accepted by most governments, including the Kuwaiti government, it cannot compensate for the damage to the reputation and prestige of the government due to the attack on its citizens. Financial compensation for the families of Kuwaiti martyrs is the least expected from the new Iraqi government, given the human suffering experienced by the families of the Kuwaiti prisoners and others. The Kuwaiti government has decided to provide an amount of half a million dollars or more for each identified martyr's family. Such a step can be seen as a humanitarian service to the families of the prisoners, helping to alleviate the difficulties in their lives exacerbated by the loss of their loved ones. 4) **Internal Regulations of the United Nations Compensation Commission:** The United Nations, pursuant to Article 26 of the UN Charter, established a Commission to compensate those affected by the invasion and occupation of Kuwait by Iraq. In its initial decisions, the UN Governing Council categorized the reasons for compensation into five groups. The first includes military operations or threats thereof from August 2, 1990, to March 2, 1991, while the last group includes hostage-taking or other forms of unlawful detention. The captivity of prisoners falls under the first group if it involves lawful combatants and under the last group if it involves civilians protected against attack under international humanitarian law. The Governing Council was explicit about the right of prisoners to compensation, excluding damages suffered by armed forces personnel except for claims from individuals who suffered harm or injury due to their captivity during the occupation. The Commission has received claims from affected individuals and has also allowed applications for damages related to the direct consequences of the Iraqi aggression against Kuwait. This includes claims for injuries caused by landmines even after the deadline for submissions. The importance of this extension is due to the ongoing relevant circumstances of the occupation necessitating compensation. Given the recent discovery of the remains of martyr Saad Al-Anzi, it is appropriate for the Commission to accept claims from the families of prisoners whose deaths are confirmed as a direct result of this aggression. After the fall of Baghdad and the capture of Iraqi dictator Saddam Hussein, the UN Compensation Commission's Governing Council, in its fiftieth session, agreed to accept claims until the end of March 2003 for the deaths of Kuwaiti and other prisoners resulting from their captivity during the Iraqi occupation of Kuwait. This decision confirms our view that circumstances have changed and that the Commission should not close the door to claims by the victims of the Iraqi occupation and their families, as discovering their remains is a direct result of this aggression. 5) Legal Precedents: International humanitarian law is rich with legal precedents ensuring that prisoners and their families have the right to compensation for the harm suffered due to violations of international humanitarian law by warring parties. After World War II, Japan signed a peace treaty with the Allied powers, establishing a fund to compensate members of the Allied forces who suffered unjustly while in Japanese captivity. Iraq’s breach of its obligations under the Third Geneva Convention necessitates international responsibility, even if there is no explicit provision for compensation. The Permanent Court of International Justice affirmed this approach in its ruling on the German-Polish dispute, stating that "One of the principles of international law is that compensation is ordered as a result of a state’s violation of its obligations, and this compensation is a natural supplement to any international treaty, even if not explicitly stated within it." 6) **The Constitution of Kuwait:** Article 25 of the Kuwaiti Constitution stipulates compensation for individuals injured during wartime or due to their military duties. This provision obliges the Kuwaiti government to compensate its military personnel who were captured and killed due to their military service, and also to compensate civilians for the latter reason only. The Kuwaiti government urged citizens not to rely solely on Article 25 of the Constitution but to seek compensation through the United Nations in 1991, considering it a national duty to pressure the Iraqi regime. Today, after the fall of this regime and the acceptance of the Kuwaiti government’s deferral and reduction of compensation payments, there seems to be no justification for delaying the implementation of Article 25 of the Constitution for the families of prisoners whose remains have been discovered. Section Two: The Scope of Compensation for the Families of Prisoners and Hostages International law governs relationships between entities of international law, thus individual claims against a state or demands for a state to compensate individuals are not accepted. Instead, claims are made between states for damages suffered by their nationals, and compensation payments are made to the affected individuals. The compensation must align with the extent and magnitude of the damage. Therefore, it is essential to explain the concept of damage in international law before discussing the amount of compensation due. Damage is defined as "the infringement of a right or interest recognized by international law to any international entity, explicitly or implicitly." Damage is a key element of international responsibility. The International Court of Justice has consistently linked compensation to damage. In the Corfu Channel case between Britain and Albania in 1947, the court did not impose compensation on Britain in favor of Albania due to the absence of damage but imposed compensation on Albania in favor of Britain due to proven damage. Albanian forces had destroyed two British ships, the Saumez and Volege, and killed 44 officers. The Permanent Court of International Justice in 1924 also refused to grant compensation in the British-Greek dispute regarding concessions granted to Mavrommatis due to the lack of proven damage. Regarding the damage inflicted on Kuwait by the previous Iraqi regime through the killing of its prisoners, two types of damage can be highlighted: direct damage to the state and indirect damage to its citizens. Direct Damage to the State: The killing of Kuwaiti prisoners, unlike prisoners from the United States or the United Kingdom, can be considered a form of moral damage. It reflects the disregard for the state's value and sovereignty, which leads to the killing of its citizens. In contrast, other states ensure the humane treatment and preservation of the lives of their prisoners, even in dire combat conditions, which insults the state whose prisoners are killed. Indirect Damage: This includes the suffering of citizens subjected to brutal treatment and the distress of their families due to the prolonged wait of about 13 years, which ended with receiving their remains. The state lost valuable human resources, disrupting its development. Additionally, the prolonged wait for the prisoners' families diminished or possibly paralyzed their ability to contribute to national development and fulfill their duties. The damage must be serious, meaning it must be definitively established or imminently occurring. It should also affect a legitimate interest of the damaged state. The absence of prisoners from their families and the receipt of their remains after the fall of the Iraqi regime is a clear example of serious damage associated with a legitimate interest. I. The Appropriate Amount of Compensation for Martyrs’ Families: Based on recent compensation cases, such as those for the victims of the World Trade Center attacks in New York and the Pentagon in Washington, and the settlements between the Libyan government and the families of the victims of the Pan Am flight over Lockerbie and the UTA flight over Niger, the compensation for each Kuwaiti family should not be less than ten million dollars. Following the September 11 attacks, the United States established a compensation fund, providing millions of dollars to each family of the victims. Similarly, Libya settled with the Lockerbie victims' families by paying ten million dollars per family or a total of 2.7 billion dollars. France, dissatisfied with the compensation received by its citizens compared to that of British and American citizens, used its veto power to prevent the lifting of sanctions on Libya, which significantly increased the compensation for the UTA victims to match that of Lockerbie victims. These legal precedents can serve as a basis for determining compensation for victims of international crimes (terrorism and killing of prisoners). Thus, the families of Kuwaiti prisoners killed by the Iraqi regime cannot accept less than what the victims of September 11, Lockerbie, or the UTA flight received. The suffering endured by these families, involving years of uncertainty and negotiations, deserves significant compensation. The matter of obtaining this amount can be addressed by combining payments from the United Nations Compensation Commission and the Kuwaiti government, with the remaining balance covered by the frozen assets of the former Iraqi president and his associates held in the United States, Europe, and Arab countries. Legally, Kuwaiti families may establish a non-governmental legal committee to represent them, similar to the committees pursuing international accountability for the 2001 attacks on the United States, to secure additional compensation. The Lockerbie victims' representatives successfully obtained their rights from the Libyan government at the end of 2002 after prolonged delays and international failures. The current Iraqi government, the interim governing council, or even the British and American occupying forces cannot deny the responsibility of the previous Iraqi regime for its crimes against Kuwaiti prisoners and others. The Iraqi regime was the governing authority that entered Iraq into international obligations accepted by the international community, including the occupying forces and the Iraqi governing council, such as border delineation with Kuwait and the oil-for-food program. Therefore, selective denial of compensation for states and prisoners is unacceptable. It is crucial for the compensation to be fair and satisfactory to the martyr's families, as any settlement should close the door to future claims for additional compensation or adjustments. A Japanese court once rejected a request to revisit compensation amounts paid by Japan to World War II prisoners, stating that the agreed fixed amount in the peace treaty between the Allies and Japan was sufficient to close the matter. Therefore, Kuwaiti negotiators and others with prisoners in Iraq must be cautious to ensure that the settlement does not undervalue the rights of individuals **Chapter Three: International Criminal Sanctions as a Public Right for the International Community** The punishment of war criminals from the Iraqi regime led by the tyrant Saddam Hussein is essential, even though it cannot fully compensate for the harm caused by the killing of Kuwaiti prisoners of war and others. However, it serves as a critical lesson for any future tyrant or individual on the importance of respecting the rights of prisoners of war, humane treatment, and the right to life and release. The international responsibility of Iraq for the killing of Kuwaiti prisoners does not preclude the prosecution of Iraqi regime criminals for these crimes. Article 12 of the Third Geneva Convention confirms this by stating: "Prisoners of war are in the power of the hostile State, but not of the individuals or military units who have captured them. Subject to the individual responsibilities which may exist, the detaining power is responsible for the treatment of prisoners." The term "individual responsibilities" in Article 12 refers to national or international criminal responsibility, as responsibility cannot be limited solely to administrative officials regarding the killing or mistreatment of Kuwaiti prisoners or others. U.S. Ambassador David Scheffer has drafted an American project, alongside a project prepared by the Kuwait University Faculty of Law under the supervision of Dr. Ahmad Al-Sumidan, to document war crimes committed by Iraqi regime affiliates, which could serve as a basis for prosecuting these criminals. The individuals from the Iraqi regime must be held accountable in international criminal trials for their heinous crime of killing Kuwaiti prisoners and others. Accusing perpetrators or those involved in international crimes does not exempt political leaders from accountability for such crimes on the grounds that they are political leaders rather than military personnel, nor can they hide behind the immunities provided by their political positions. The International Law Commission has established this principle as an international norm derived from Nuremberg, which states: "No one is exempt from international responsibility for committing international crimes, even if they acted as a head of state or ruler during their commission." The Genocide Convention of 1948 affirmed this principle, requiring accountability for political leaders for crimes committed during their tenure. Article 4 of the Convention on the Prevention and Punishment of the Crime of Genocide stipulates: "Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are rulers, public officials, or private individuals." This principle has been supported by both national and international courts. For instance, a French court in October 2000 condemned Libyan leader Muammar Gaddafi for his involvement in the bombing of a French plane over Niger in 1989. Internationally, former Yugoslav President Slobodan Milošević was tried by the International Criminal Tribunal for the former Yugoslavia for crimes committed by his military leaders during his tenure, and his political immunity did not protect him from international criminal responsibility. In this context, it is necessary to consider the arrest of former Iraqi President Saddam Hussein and hold him accountable for the war crimes committed against Kuwaiti prisoners and others. Article 130 of the Third Geneva Convention describes the killing of prisoners as a grave breach, emphasizing that military duty cannot be used as a justification for committing such acts. Therefore, individuals must be punished for committing these crimes. Article 129 of the Third Geneva Convention regarding the treatment of prisoners states: "The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing or ordering to be committed any of the grave breaches of the Convention described in the following Article. Each High Contracting Party shall be obligated to search for persons alleged to have committed such grave breaches, to have ordered such breaches to be committed, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with its own laws, surrender them to another High Contracting Party concerned, for the purpose of prosecution, provided that the latter party has adequate evidence against them..." Hence, the perpetrators of grave breaches must be tried either through national or international law. Punishing criminals is primarily the responsibility of the state where the crime occurred, in this case, Iraq. However, if Iraq fails to address this legal vacuum, international criminal courts must step in to prosecute war criminals who killed Kuwaiti prisoners and others. International criminal responsibility is not a new concept; its roots are deep in history but have evolved to its current form. The first international criminal court sessions were held in 1474 to prosecute a governor from the Upper Rhine region, Peter von Hagenbach. He was convicted of crimes against God and humanity and brutality against the inhabitants of Breisach. Later, the Hague Conventions recognized the principle of individual responsibility in international law. Article 3 of the Fourth Hague Convention states: "The parties to the conflict are responsible for all acts committed by persons forming part of their armed forces." After World War II, the first international criminal court sessions were held in Nuremberg on November 20, 1945. The case was against former German Army Marshal Hermann Göring. The Nuremberg Trials resulted in 36 death sentences and 23 life imprisonments. In 1977, Additional Protocol I to the Geneva Conventions reaffirmed the principle of international criminal responsibility, stating in Article 91: "A party to the conflict that violates the provisions of the Conventions or this Protocol shall be liable to pay compensation if required. It shall be responsible for all acts committed by persons forming part of its armed forces." Section One: Iraqi National Jurisdiction for War Crimes Prosecution In many cases, the national judiciary of the state concerned fails to prosecute war criminals or conducts trials that lack seriousness and deterrent penalties. The international community agrees on the necessity of prosecuting alleged war criminals within the framework of national law. For example, special U.S. military courts were established to hold American soldiers accountable for atrocities committed during the Philippine Insurrection (1899-1902). However, national judicial systems are not always neutral, objective, or just. For instance, after World War II, the Reich Court in Germany tried only a few out of 800 war crime suspects, and many of those convicted received lenient sentences that did not fit the gravity of their crimes. Some managed to escape from prison. The mismanagement of the German national judiciary in dealing with war criminals handed over to Germany after World War I led to a reluctance to rely on domestic courts for prosecuting war criminals. This reluctance contributed to the determination of the Allied powers after World War II to internationalize the prosecution of war criminals and not to assign this responsibility to the states where the crimes were committed. Despite the protection offered to criminals by dictatorial regimes, state sovereignty is no longer an acceptable cover to prevent these individuals from being subject to international criminal law. However, following the fall of Saddam Hussein's regime and the establishment of a new government not aligned with these criminals, the Coalition forces declared that the prosecution of individuals such as Ali Hassan al-Majid (Chemical Ali) and the ousted President Saddam Hussein would fall under the jurisdiction of Iraqi courts, which could include the prosecution for killing Kuwaiti prisoners and others. It is not uncommon for some countries to experience hesitation about extraditing some of their nationals for prosecution in another country. For example, the Yugoslav authorities were reluctant to extradite former President Slobodan Milošević, and Libya hesitated to extradite Libyan suspects to the U.S. or the U.K. for their roles in the bombing of Pan Am Flight 103 over Lockerbie. The Third Geneva Convention takes into account the potential embarrassment that some countries might face in extraditing their nationals or former leaders for trial as war criminals and allows for the possibility of trials in a state party to the convention. This is similar to Libya's extradition of its suspects in the Lockerbie bombing to the Netherlands, where they were tried under Scottish law. However, it is important to note that the national judiciary of Iraq might not be considered neutral, given that judges may be victims or relatives of victims of the previous Ba'athist regime. The Iraqi people also suffered human rights violations under the Iraqi regime, which could lead to a focus on prosecuting regime figures for crimes against the Iraqi people, potentially at the expense of addressing international crimes committed during armed conflicts with neighboring states and the Coalition. To ensure fair and just trials, we advocate for international criminal trials for Iraqi war criminals. Section Two: The Jurisdiction of Temporary International Criminal Tribunals Between 1943 and 1944, through the efforts of the United States and Britain, the United Nations War Crimes Commission was established, leading to the formation of several judicial bodies, including the International Military Tribunal for Nuremberg and the International Military Tribunal for the Far East in Tokyo. These tribunals were the first to issue international criminal judgments based on serious violations of international law. The Nuremberg Tribunal was composed of judges from the major powers: France, Britain, the former Soviet Union, and the United States. The Tokyo Tribunal included judges from eleven countries, including the aforementioned major powers. The Nuremberg and Tokyo Trials resulted in 3,686 convictions and 924 acquittals. The Western Allies convicted approximately 5,025 Germans of war crimes, with 806 receiving death sentences. The Soviet Union also prosecuted 10,000 war criminals. Subsequently, the United Nations, through Security Council Resolution 808/1993, established the International Criminal Tribunal for the former Yugoslavia, and Resolution 955/1994 established the International Criminal Tribunal for Rwanda. Currently, efforts are underway to establish a tribunal to prosecute Khmer Rouge leaders for war crimes committed during the Cambodian civil war. The Security Council should decide to establish a temporary international criminal tribunal to prosecute Iraqi war criminals for their crimes, including the killing and endangerment of Kuwaiti prisoners. Such a tribunal would be responsive to the interests of the United States, which holds significant political influence in the Security Council through its veto power. This would allow for the specification of the period and crimes within the tribunal's jurisdiction, ensuring that it does not include the prosecution ### Chapter Three: The Jurisdiction of the Permanent International Criminal Court to Prosecute War Criminals The Statute of the International Criminal Court (ICC) came into effect in November 2002. However, no cases have yet been brought before the Court. Since neither the United States nor Iraq are parties to this treaty, it is unlikely that Iraq would turn to the Court to request the prosecution of Iraqi war criminals for the killing of Kuwaiti prisoners. Nevertheless, there is a legal way to grant the Court jurisdiction over war crimes committed against Kuwaiti prisoners. The United States and the United Kingdom, as occupying powers under Security Council Resolution 1483/2003, which entrusted them with the administration of Iraq's local and international affairs, could encourage Iraq to accede to the Rome Statute and submit a declaration granting the Court retroactive jurisdiction for crimes committed before Iraq's accession. This would allow the Court to address the crimes committed by the previous regime against Kuwaiti prisoners and others. As Kuwaitis and international law practitioners, we hoped that Saddam Hussein and his Ba'athist regime were the reason for Iraq's failure to join the Rome Statute. Now, with the fall of this regime and the emergence of Iraq as a country governed by the rule of law, it is crucial for Iraq to join the Rome Statute and grant the Court jurisdiction over the war crimes committed by the previous regime and its leaders. However, it is important to note that the United States itself has not ratified the Rome Statute, as it has committed war crimes in Iraq that could one day be prosecuted by the Court. Thus, it may be difficult for the U.S. to persuade Iraq to adopt a treaty it does not support. As the occupying forces plan to transfer power to the Iraqi people, it is expected that the free Iraqi government will take steps to join the Rome Statute after the liberation of Iraq. Nonetheless, the failure to achieve such a goal should not be an excuse for Iraqi war criminals to evade criminal justice for their actions against Kuwaiti prisoners and others. Conclusion It is essential to fully uncover the truth about the status and condition of Kuwaiti prisoners, especially as hope diminishes for finding any survivors, as indicated by the UN Secretary-General in mid-December 2003. Therefore, it is necessary to compensate those affected, including the states representing these prisoners, the prisoners themselves, and their families. Compensation requires attributing responsibility to a legal entity, namely Iraq and the 1991 and 2003 coalition states. Consequently, international responsibility is divided between Iraq for the killing of prisoners, provided it is proven they were killed between Iraq's invasion of Kuwait in 1990 and the U.S. invasion in April 2003. International humanitarian law provides several obligations for warring parties, and any breach of these obligations leads to attributing responsibility to the international entity. As a direct result of these violations and the loss of Kuwaiti prisoners' lives, compensation must be provided to the prisoners, their families, and their countries. Such compensation should ensure a dignified life for these families, enabling them to undertake charitable projects and religious practices like pilgrimage and almsgiving in honor of the martyrs. Compensation should not be less than what the victims of September 11 or Lockerbie received, as any discrimination is wholly unacceptable under international law and constitutes a grave violation of fundamental human rights. If the Kuwaiti government cannot address the legal vacuum regarding financial claims for the martyrs' families, a local and international team of legal professionals could pursue such claims and secure the rights of the prisoners' families due to the harm caused by their deaths. These compensations should not preclude the prosecution of Iraqi war criminals or coalition forces responsible for the killings, should it be proven they were involved in violating international humanitarian law. International criminal law has seen precedents where war criminals were prosecuted, including former Yugoslav President Slobodan Milošević, and others. The former Iraqi president, having been captured, faces the possibility of trial under Iraqi law. References Arabic References: Books: Scientific Research: Newspapers and Magazines: Electronic Sources: Foreign References: Here is a translation into English of the text provided: --- Identifying the Remains of 10 Kuwaiti Prisoners, Al-Rai Al-Aam Kuwaiti Newspaper, Issue 13337, December 26, 2003, p. 1. Brigadier General Said Hashim, Introduction to International Humanitarian Law, Publications of the International Committee of the Red Cross Mission in Cairo, n.d., p. 12. Dr. Aref Khalil Abu Eid, Foreign Relations in the State of the Caliphate, Dar Al-Arqam, Kuwait, 1985, pp. 247-254. Yoram Dinstein, The Release of Prisoners of War, in *Studies and Essays on International Humanitarian Law and the Red Cross Principles*, Martinus Nijhoff Publishers, 1984, pp. 37-45. H. Hayne Elliott, Prisoners of War Camps, in *Crimes of War: What the Public Should Know*, 1999, pp. 282-285. Article 5 of the Third Geneva Convention concerning the treatment of prisoners states: "In cases of doubt whether persons who have committed acts of war and have fallen into the hands of the enemy belong to one of the categories referred to in Article 4, these persons shall be treated as if they were entitled to the protection of this Convention until their status has been determined by a competent tribunal." Third Geneva Convention concerning the treatment of prisoners, 1945, Article 5. El-Far, Op. cit., p. 492. Sulaiman Al-Saidi et al., The First Prisoners Appeared ... As Martyrs, Al-Rai Al-Aam Kuwaiti Newspaper, June 9, 2003, Issue 13137, pp. 1, 31. Hereinafter Sulaiman Al-Saidi. Al-Rai Al-Aam Kuwaiti Newspaper, June 13, 2003, Issue, p. 1. Avis Consultative, "Reparation for Damages Suffered in the Service of the United Nations,"ICJ, April 11, 1949, Rec. (The Hague, 1949), p. 180. Prof. Dr. Essam Zanaty, Concept of Damage in International Responsibility Claims**, Dar Al-Nahda Al-Arabiya, 1994-95, p. 3. Hereinafter **Zanaty. zanaty, Op. cit., p. 8. Statute of the International Court of Justice, Article 38. Sometimes international conventions contain provisions that enshrine established principles in international law, binding on non-party states as well as contracting parties based on them being general principles. There are also other acts rejected by ethics, such as the Gentleman’s Agreement and Martens Clause. Dr. Issa Al-Anzi & Dr. Nada Al-Daij, Study on Human Rights in Times of Peace and Armed Conflicts: Focusing on the Wars of Liberation of Kuwait and the Republic of Iraq, 2003, p. 319. Hereinafter Al-Anzi and Al-Daij **Jordan J. Paust, Judicial Power to Determine the Status and Rights of Persons Detained**, 44 Harv. Int’l L. J. 503, 510 (2003). Third Geneva Convention concerning the treatment of prisoners, Op. cit., Articles 109-119. Third Geneva Convention concerning the treatment of prisoners, Op. cit., Article 4. Fourth Geneva Convention concerning the treatment of civilian populations, 1949, Articles 27-34. Article 3 of the Third Geneva Convention prohibits the killing of prisoners as a minimum standard of protection. Third Geneva Convention concerning the treatment of prisoners of war, August 12, 1949, Article 3 (1) (a). Hereinafter **Third Geneva Convention**. Third Geneva Convention, Op. cit., Article 130. Rome Statute of the International Criminal Court, July 17, 1998, adopted on July 17, 1998, by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, A/CONF.183/9, Article 8(2)(a). Al-Rai Al-Aam Kuwaiti Newspaper, June 13, 2003, Issue, p. 1. Convention on the Prevention and Punishment of the Crime of Genocide, adopted and opened for signature, ratification, or accession by General Assembly resolution 260 A (III) of December 9, 1948, and entered into force on January 13, 1951. Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide states: "Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:" Security Council Resolution 677/1990, issued on November 28, 1990, available in the United Nations and the Iraq-Kuwait conflict 1990-1996, United Nations Publications, p. 194. Dr. Nabil Bashar, International Responsibility in a Changing World, First Edition, 1994, pp. 441-442. Third Geneva Convention, Op. cit., Article 23. Ashmawi, Op. cit., p. 65. Third Geneva Convention, Op. cit., Article 19. Dr. Mohieddin Ali Ashmawi, Rights and Duties of Prisoners of Warn.d., n.d., p. 56. Hereinafter Ashmawi During World War I, it was agreed to establish prisoner camps at distances not less than 30 kilometers from the front lines. This principle was indeed included in the 1929 Prisoner of War Convention, Article 9 (4). However, technological advancements and the increased range of artillery shells and the use of aircraft and bombers in armed conflicts necessitate reconsideration of the adequacy of the 30-kilometer distance to ensure the safety and security of prisoner camps. See Ashmawi**, Op. cit., p. 63. The criminal courts for prosecuting war criminals will be discussed in a later chapter. Message from the Permanent Representative of Kuwait to the United Nations, former Ambassador Mohammed Abu Al-Hassan, to the Secretary-General and the President of the Security Council, stating Kuwait's protest against Iraq using Kuwaiti prisoners as human shields.... Abdul Ghani Mahmoud, International Humanitarian Law: A Comparative Study with Islamic Law First Edition, Dar Al-Nahda Al-Arabiya, 1991, p. 86. Hereinafter **Abdul Ghani Mahmoud**. Security Council Resolution 674/1990 condemned Iraq for detaining third-country nationals, see Security Council Resolution 674/1990 issued on October 29, 1990. Normand & Chris af Jochnick, The Legitimation of Violence: A Critical History of the Laws of War, 35 Harv. Int’l L. J. 387, 396 fn. 4 (1994). Here is a translation of the provided references into English: --- **Geneva Convention III**, reference above, Article 25. **Geneva Convention III**, reference above, Article 47. Dr. Ali Saif Al-Nami, "The International Legal Status of Kuwaiti Prisoners in Iraq," 3 Journal of Rights 87, 122 (2002). **Geneva Convention III**, reference above, Article 29. **Geneva Convention III**, reference above, Article 30. Ashmawi, reference above, p. 122. **Geneva Convention III**, reference above, Article 109. **Geneva Convention III**, reference above, Articles 120 and 121. **Geneva Convention III**, reference above, Article 120. **Geneva Convention III**, reference above, Article 120. **Geneva Convention III**, reference above, Article 120. **Geneva Convention III**, reference above, Article 120. **Geneva Convention III**, reference above, Article 121. **Geneva Convention III**, reference above, Article 121. **Geneva Convention III**, reference above, Article 120. **Geneva Convention III**, reference above, Article 120. Suleiman Al-Saeedi, reference above, pp. 1, 31. **Geneva Convention III**, reference above, Article 120. Shigeki Miyazaki, "The Marten’s Clause and International Humanitarian Law," in *Studies and Essays on International Humanitarian Law and the Red Cross Principles* (Martinus Nijhoff Publishers, 1984), pp. 433-444. **Geneva Convention III**, reference above, Article 142. **Geneva Convention I** for the Improvement of the Condition of Wounded and Sick in Armed Forces in the Field, August 12, 1949, Article 50; **Geneva Convention II** for the Improvement of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, Article 51; **Geneva Convention III**, reference above, Article 130; **Geneva Convention IV** on the Protection of Civilian Persons in Time of War, August 12, 1949, Article 147. **Security Council Resolution No. 1483/2003** provides that "Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the 'Authority'... 6. Calls upon the Authority... to continue efforts to locate, identify, and repatriate all Kuwaiti and Third-State Nationals or the remains of those present in Iraq on or after August 2, 1990." Security Council Decision Number S/RES/1483(2003) of May 22, 2003. **Geneva Convention III**, reference above, Article 23. Iraq was subjected to bombings by American and British aircraft, Tomahawk missile strikes, and American artillery since the liberation of Kuwait, through Desert Fox, the protection of no-fly zones in northern and southern Iraq, and culminating in Operation Iraqi Freedom. See Dr. Majid Yassin Al-Hamwi, "A Look at the United Nations Crisis Under International Law," 3 Journal of Rights 359, pp. 390-391 (2003). **Geneva Convention III**, reference above, Article 12, Paragraph 1. **Geneva Convention III**, reference above, Article 13. Boston Globe, "Kuwaiti Team Extinguishes Last Fire In Iraq's Al-Rumeila Oil Field," April 14, 2003, , (last visited June 4, 2003). Salem Al-Wawan, "Discovery of Chemical Barrels," *Al-Rai Al-Aam* Kuwaiti Newspaper, April 28, 2003, Issue 12376, pp. 1, 26. Kuwait formed teams to search for Kuwaiti prisoners in collaboration with specialized private companies and allocated millions of dollars for information that could lead to finding the prisoners. **Geneva Convention III**, reference above, Article 120. CNN.com, "Iraqi Uncover Mass Graves," May 5, 2003, , (last visited June 3, 2003). Zanati, reference above, p. 3. Zanati, reference above, p. 12. See Mavrommatis Case, CPJI, Rec., Series A, No. 5, at 51. RSA, vol. III, p. 32 etc. Mentioned in Zanati, reference above, p. 64. Zanati, reference above, p. 23. RSA, V., June 18, 1929, p. 545, RSA, IV, p. 265, Mentioned in Zanati, reference above, p. 23. Zanati, reference above, p. 23. CPJI, Judgment of September 13, 1928, Series AN 17 Series C.N 15-11, Case Concerning the Factory of Chorzow, p. 350. Zanati, reference above, pp. 39-40. Zanati, reference above, p. 41. Emanuela-Chiara Gillard, "Reparation for Violations of International Humanitarian Law," 851 International Review of the Red Cross 529, 531 (2003). Personnaz (Jean), "Reparation for Damage in Public International Law," Thesis, Paris, Sirey, 1938, p. 277. The United Nations formed a committee to return Kuwaiti property looted during the Iraqi occupation of Kuwait, and the committee succeeded in recovering some Kuwaiti properties, albeit in poor condition. U.N. Doc. A/51/10/Corr. 1 (1996), available at , (last visited November 12, 2001), supra note (2085) arts. 41-46. See Article 43 of the International Law Commission’s Draft Articles on State Responsibility, U.N. Doc. A/51/10/Corr. 1 (1996), available at , (last visited November 12, 2001), supra note (2085) arts. 41-46. U.N. GAOR, 51st Sess, Supp. No. 10, art. 45, U.N. Doc. A/51/10/Corr. 1 (1996), available at (last visited November 12, 2001). Gillard, supra note (...) at 532. UN Security Council Resolution 687/1991, April 3, 1991, para. 16. UNCC, UN Doc. S/AC. 26/1991/1, Governing Council Decision 1, Criteria for Expedited Processing of Urgent Claims, August 2, 1991, Para. 18. (last visited October 10, 2000). *Al-Siyasa* Kuwaiti Newspaper, "UN Security Council: The Prisoners Were Killed," reference above, p. 1. Article 16 of the 1951 Treaty of Peace between the Allied Powers and Japan, San Francisco, cited in Gillard, supra note (...) at 535-36. German-Polish Dispute......, Permanent Court of International Justice, Judgment of July 26, 1927. Gillard, supra note (...) at 535. Dr. Mohamed Abdel Aziz Abu Skheila, "The General Theory of International Responsibility," Volume I, (1981), p. 89, hereinafter Abu Skheila. Abu Skheila, reference above, pp. 91-92. Abu Skheila, reference above, pp. 91-92. Abu Skheila, reference above, pp. 93. Omar Mohamed Al-Mahmoudi, "Contemporary Issues in International Law," Al-Jamahiriya Publishing and Distribution, no date, p. 98, hereinafter Mahmoudi. Mahmoudi, reference above, p. 99. USA Patriot Act, §§ 102, 624, 1011, and 1014. Northern Iowan Online, "The World in Brief," May 2, 2003, , (last visited May 31, 2003). The Libyan Jamahiriya was subject to sanctions under Security Council Resolutions 784/1992 and 884/1993. The Security Council lifted the sanctions on the Libyan government under Resolution 1506/2003, issued on September 12, 2003

D. Issa Al-Anazi