A PETITION FILED WITH THE UNITED NATIONS COMMISSION ON HUMAN RIGHTS PURSUANT TO RESOLUTION 1503 SUBMITTED BY:Beth Stephens Jennifer Green CENTER FOR CONSTITUTION RIGHTS 666 Broadway, 7th floor New York, New York 10012 U.S.A. December 3, 1992
INTRODUCTORY INFORMATION CONCERNING THE PETITION ii I. THE URGENT NEED FOR U.N. ACTION 1 II. THE FACTS UNDERLYING THE PETITION 2 A. The Farhat Family's Ordeal 2 B. The Pattern of Gross Human Rights Abuses 7 III. VIOLATIONS OF INTERNATIONAL LAW 9 A. The Responsibility of the Government of Kuwait 10 B. Summary Execution 13 C. Torture and Cruel, Inhuman or Degrading Treatment 14 D. Discrimination Based on National Origin 18 E. Gender-Based Discrimination 19 IV. PETITIONERS HAVE NO OTHER AVAILABLE REMEDY 20 V. CONCLUSION 20 Attachment
PETITIONERS:
(1) MAIMANE FARHAT NAIM FARHAT NAIMAT FARHAT MOKHTAR FARHAT
Petitioners allege that the Government of Kuwait systematically violated the fundamental human rights of those living under its jurisdiction, particularly noncitizens of Kuwait. These violations were particularly egregious in the months following the end of the Iraqi occupation in 1991, the time period in which petitioners and other members of their family were subject to gross violations of their human rights, including summary execution, torture, cruel, inhuman or degrading treatment, discrimination based on national origin and gender-based discrimination.
On February 26, 1991, the family of Ismail and Maimane Farhat joined their friends and neighbors in Kuwait in a joyous celebration of the expulsion of the Iraqi invaders who had terrorized them during seven long months of occupation. Having survived the occupation, the Farhats looked forward to a peaceful future, as they helped rebuild the country which had been their home for over 30 years.
Less than a week later, however, the family was mourning the murder of Ismail Farhat and his youngest son,
The attack on the Farhat family was not an isolated incident. In the aftermath of the war fought on its behalf, the newly restored government of Kuwait unleashed a campaign of terror, chiefly against noncitizen residents of Kuwait, which added thousands of additional victims to the toll inflicted by the war. Through summary executions, torture, arbitrary detention and the forced exile of people who had spent all or most of their lives in Kuwait, the government aggravated a tragedy whose repercussions will be felt in the region for decades to come.
Having been stymied in their attempts to obtain justice from Kuwait, the Farhats now turn to the United Nations, demanding that Kuwait be held accountable for the grave human rights violations inflicted on their family and on thousands of other people.
A. The Farhat Family's Ordeal
Ismail and Maimane Farhat moved to Kuwait from Lebanon in the late l950s with their oldest child, Naim. Three younger children--Mokhtar, Naimat and Osama--were born in Kuwait. Pursuant to Kuwait's restrictive citizenship laws, the family members--including those born and raised in Kuwait--were not eligible for Kuwaiti citizenship.
Naim and Mohktar eventually emigrated to the United States, but the rest of the family settled in Kuwait; all were active and respected members of the community. Ismail and his son Nadim worked for the Kuwaiti government in the Interior Ministry, while Naimat worked for a bank in Kuwaiti City and Osama, the youngest, attended school.
In August 1991, when Iraq invaded Kuwait, the Farhats joined their friends, neighbors and colleagues in a campaign of resistance to Iraqi rule. While many wealthy Kuwaitis fled the country, the Farhats remained in Kuwait and worked with the Kuwaiti underground, each participating in whatever way possible. Ismail was interrogated and tortured by the Iraqis several times.Osama smuggled arms, while Naimat used her position at the bank to withdraw money to buy food and other supplies for Kuwaiti families in hiding. Nadim joined the Kuwaiti resistance force, and was cited by the Kuwaiti government for his outstanding contributions to the "liberation" of Kuwait.
Despite this record, the family--along with virtually all of the noncitizen population of Kuwait--was targeted by the security forces almost immediately after the Kuwaiti government was restored to power on February 26, 1991. On March 1, Osama and a friend were stopped at a checkpoint by Kuwaiti security forces, taken to the Salwa Police Station and questioned for four hours before being released.
Early the next morning, at about 4 a.m. on March 2, three men in civilian clothes came in a car to the Farhat home. Only Ismail, his son Osama and his daughter Naimat were at home. One of the men identified himself as a member of the Kuwaiti military, and said that they had authorization to search the house and to kill the whole family because Iraqi soldiers had been seen entering their house and because the family had betrayed two Kuwaitis. The Farhats tried to dissuade them; they described their work with the Kuwaiti underground and explained that the Iraqis had come to their home not as friends but to interrogate and torture them. But one of the group entered the home despite their efforts.
The intruder identified himself as a member of the Kuwaiti resistance and a soldier in the Kuwaiti army and stated that he had been trained in the United States. He mentioned the detention of Osama, who had been released just six hours earlier --information known only to the family and the police. He ordered Osama to tie up his father, and then forced Naimat to tie up Osama. When she attempted to tie Osama's hands loosely, the soldier kicked her in the ribs and hit her with his gun. He ordered her to serve him tea, then took her into another room forced her to undress, gagged her mouth, and raped her repeatedly, threatening to kill the whole family if she resisted. He then shot her in the head, leaving her for dead. As she lay in a pool of her own blood, barely conscious, Naimat heard two more shots: one shot in the ear killed her father, Ismail, while a shot in the eye killed her brother, Osama.
Miraculously, Naimat survived. Confined in a Kuwaiti hospital, she was able to contact her family in the United States only by smuggling a note to a U.S. reporter who came to the hospital to interview victims of Iraqi abuses. Afraid that the Kuwaitis would realize that she was the only surviving witness to the atrocity, Naimat at first told only a few close friends what had happened. Later, while still in the hospital, she reported the attack to representatives of several police stations, the court and the Ministry of Justice. As soon as she was physically able to leave the hospital, she went into hiding. With the help of her two brothers in the United States, Naimat managed to escape from Kuwait. After a short stay in Lebanon, she traveled to the United States for medical treatment.
Naimat suffers permanent physical disabilities as a result of her head wound, including partial paralysis of one side of her body. She walks haltingly, with a cane, and cannot control her arm or hand. Neurosurgeons were unable to remove the bullet fragments from her brain or to restore her shattered skull: a metal plate now covers a large hole on the rear of her head. Naimat also bears serious psychological scars which make it difficult for her to forge a new life. She is under regular medical and psychological care, and will need such care for the rest of her life.
Despite her strenuous efforts to overcome her disabilities, Naimat--who had supported herself in Kuwait--has not been able to obtain employment and is now dependent on donations and her family for support. Her mother, Maimane Farhat, has been unable to obtain her husband's pension from the Kuwaiti government, and is also dependent on her surviving children for support. The care of these physically and emotionally traumatized relatives has put a severe strain on the rest of the family.
The Kuwaiti government has attempted to cover up its responsibility for the crime committed against the Farhats. Witnesses to the family's ordeal have been threatened by Kuwaiti officials, including the friend who was with Osama when he was detained the night before his murder and neighbors who saw the soldiers at the Farhats' home. An attorney in Kuwait who attempted to report the crime and initiate an investigation has been repeatedly rebuffed by Kuwaiti officials, and has been told by the Kuwaiti police department that the police file on the case was lost.
Kuwait has refused to investigate the crime or to meet with the Farhat family to discuss their demand for an investigation and compensation. The Center for Constitutional Rights has made repeated attempts to contact the Kuwaiti government on behalf of the Farhat family, but has received no reply.(1) Although the atrocity has been reported to the Kuwaiti government at least a dozen times--directly to the police, to the Ministry of Justice, and directly to the
B. The Pattern of Gross Human Rights Abuses
[T]he newly reinstated Kuwaiti government has trampled on [human] rights at nearly every turn, often with the use of violence. Murder, torture, arbitrary detention and deportation have been the tools of this campaign of vengeance . . . Kuwait's human rights conduct since liberation has been nothing short of deplorable.(3)
The months following the liberation of Kuwait saw a brutal campaign of human rights violations against those whose allegiance to the Kuwaiti government was considered suspect, including virtually all of the noncitizens of Kuwait (who comprised a large segment of the pre-invasion population) as well as Kuwaitis working for a more democratic government. These abuses included widespread summary executions; systematic torture and other mistreatment in detention, often leading to death; arbitrary arrests and detention without trial; hundreds of disappearances; and charade trials which resulted in long prison terms imposed without internationally recognized due process protections.
Amnesty international stated in an April 1991 report,
Victims have been gunned down in public or taken away, tortured and killed in secret. Hundreds of victims were plucked from their homes, taken from streets or arrested at check-points, many to be tortured. . . Torture is said to have been rife, including beatings, electrical shocks and prolonged deprivation of food and water, and medical care virtually non-existent.(4)
Much of the abuse constituted "collective punishment" against noncitizens, solely because of their national origin. Amnesty International noted that "many people seem to have been targeted simply because of their nationality." The New York based Lawyers Committee for Human Rights concluded,
The post-war treatment of non-Kuwaitis by the Kuwaiti authorities has been redolent of collective punishment. Palestinians, Sudanese and nationals of other Arab states...have been singled out for harsh treatment simply on the basis of their nationality...regardless of [their] individual behavior during the occupation. (5)
Although the worst of the human rights abuses had ceased by early 1992, this "accomplishment" was largely the result of the forced expulsion of approximately 90 percent of the noncitizens who formerly resided in Kuwait. Many people who had lived their entire lives in Kuwait were forced out and have been prevented from returning to their homes. As noted by Middle East Watch, the U.S.-based human rights organization, "The violence of the early months of liberation [was] increasingly ...supplanted by an inhumane and illegal deportation process.(6)
The pattern of gross human rights abuses documented by international human rights groups demonstrates that the abuses inflicted on the Farhat family were representative of the suffering of Kuwait's noncitizen population. These gross violations of international human rights protections must be investigated by this Committee.
(1) See letter from Beth Stephens, Esq., to the Emir of Kuwait, dated July 1, 1992, appended hereto as Attachment 1.Return to Text
(2)Nadim Farhat, the sole surviving member of the family remaining in Kuwait, reported the crime to the local police the day it happened. Naimat herself reported the attack to officers from several different police stations while she was in the hospital. Subsequent to that, an attorney in Kuwait retained by the family repeatedly requested that the Kuwaiti police investigate the case.
The Center for Constitutional Rights has sent two letters to the Emir of Kuwait which report the attack and ask for a full investigation. The letters, dated July 1, 1992, and September 22, 1992, were sent both by fax and by mail, with copies to the Kuwaiti Ambassador to the United States.
In July 1991, a spokesperson for the Kuwait Ambassador told the press that the crime was under investigation (see San Jose Mercury News, "Victims' Santa Cruz Kin Seeking Overseas Justice," July 25, 1991, p.1B). On October 29, 1992, the same spokesperson told the Center for Constitutional Rights that he know nothing about the case: he was sent an additional copy of CCR'a letter to the Emir on that date.
In addition, the U.S. Ambassador to Kuwait and several U.S. Senators and Congressional representatives have each contacted the Kuwaiti government several times to inquire about the status of the case.Return to Text
(3) A Victory Turned Sour: Human Rights in Kuwait Since Liberation, Middle East Watch, Sept 1991, at 1 (EXHIBIT A). For more information on the pattern of human rights abuse in post- liberation Kuwait, see Nowhere to Go: The Tragedy of the Remaining Palestinian Families in Kuwait, Middle East Watch, Oct 1991 (EXHIBIT B); Building the Rule of Law: Human Rights in Kuwait After Occupation, Lawyers Committee for Human Rights, Jan 1992 (EXHIBIT C): The Treatment of alleged Collaborators and Other Security Detainees in Kuwait, Lawyers Committee for Human Rights, Aug 1991 (EXHIBIT D); Human Rights Challenges Face the Returning Kuwaiti Government, Lawyers Committee for Human Rights, March 1991 (EXHIBIT E); Cases of "disappearance," incommunicado detention, torture and extrajudicial execution under Martial Law, Amnesty International, Oct 1992 (EXHIBIT F); Amnesty International Calls on Emir to Intervene over Continuing Torture and Killing, Amnesty International, April 1991 (EXHIBIT G). Return to Text
(4) Amnesty International Calls on Emir to Intervene over Continuing Torture and Killings, Amnesty International, April 1991 (EXHIBIT G). Return to Text
(5) Building the Rule of Law: Human Rights in Kuwait After Occupation, Lawyers Committee for Human Rights, Jan. 1992, p. 34.Return to Text
(6) A Victory Turned Sour: Human Rights in Kuwait Since Liberation, Middle East Watch, Sept. 1991, at 1. Return to Text
Kuwait's gross violations of the human rights of its noncitizen population--of which the attack on the Farhat family is but one egregious example--violated several of the most fundamental principles of international law. These violations are subject to review under the procedures established by Resolution 1503, which authorizes complaints by individuals who have evidence of a "consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms."(7)Such violations include "all human rights and fundamental freedoms recognized in widely ratified international conventions." (8)As detailed below, the goverment of Kuwait bears responsibility for egregious violations of the fundamental international law protections against summary execution, torture and cruel, inhuman or degrading treatment, discrimination based on national origin, and gender-based discrimination.
A. The Responsibility of the Government of Kuwait
The Kuwaiti government is responsible under international law for both the attack on the Farhat family and for the pattern of summary execution, torture and the other abuses described above.
The prohibitions against torture and summary execution are considered by the world community to be "peremptory norms of international law," also known as "jus cogens" norms. This means that these standards are mandatory, are binding on all nations, and must be enforced by all governments, even when in conflict with local law.(9)
During the Nuremberg trials following World War II, an international tribunal found that certain "crimes against humanity" commited during the war could be punished under international law "whether or not in violation of the domestic law of the country where perpetrated," including deportation or other persecution besed on political or racial grounds and murder.(10)The abuses suffered by the Farhat family and countless other noncitizen residents of Kuwait--summary execution, torture, forced exile, persecution based on national origin and for erroneously attributed political beliefs- constitute "crimes against humanity" subject to international review.
Another important principle of international law also applies to the Farhat family and their demand for justice: a government is held legally responsible for any violations of fundamental international norms committed by its representatives.(11)Thus, the government of Kuwait is legally responsible for the Farhats' ordeal.
A review of the facts surrounding the attacks on the Farhats and thousands of other residents of Kuwait supports this legal conclusion. The abuses which took place in the months following the reinstallation of the Kuwaiti government were so widespread and notorious as to indicate that they were inflicted pursuant to a government policy, by security personnel who were following orders from the military command. Most of the murders were committed by members of the security forces or by groups working in close coordination with them. The government's repeated accusations that noncitizens constituted an ongoing threat to Kuwait's security incited its forces to increased abuses. Finally, the government's failure to investigate or prosecute human rights violations indicates complicity in those abuses at the highest levels. (12)
The Kuwaiti government's responsibility for the attack on the Farhat family is also clear. The man who attacked the family described himself as a member of the security forces. He had information about the detention of Osama Farhat, which had taken place just a few hours before he arrived at the Farhat home and was known only to the family and to the police. Since the attack, the government has made every effort to cover up the truth, most significantly by threatening the key witnesees. And, over twenty months after the tragedy, the Kuwaiti government still refuses to investigate what happened.
Although the evidence about the pattern and practice of human rights abuses in Kuwait clearly indicates that Kuwaiti security forces ordered both the attack on the Farhat family and the general pattern of abuses, the Kuwaiti government must also be held liable under international law because its officials tolerated, knowingly ignored, condoned, and failed to punish or condomn these gross human rights violations. (13)
Given the Kuwaiti government's responsibility for gross human rights violations, and its failure to investigate or punish those responsible, an international investigation is essential.
B. Summary Execution
Summary execution--the killing of a human being by or at the instigation of a public official, other than as lawful punishment pursuant to due process of law--violates the right to life, the most fundamental of all human rights, and is prohibited by all of the major human rights instruments.(14)The international community has strongly and consistently "condemn[ed] the practice of summary executions and arbitrary execution..." G.A. Res 22, 36 U.N. GAOR Supp. (No 51) at 168, U.N. Doc. A/36/51 (1981). As summarized in the Restatement (Third) of Foreign Relations Law of the United States (1987) § 702, " A State violates international laws if, as a matter of state policy, it practices, encourages or condones... the murder [of individuals]." This prohibition is never derogable, even in times of war or other public emergency. (15)
The killing of Ismail Farhat and his son, Osama Farhat, constituted summary executions in violation of their fundamental right to life, as did the many other killings of noncitizens which followed the reinstatement of the Kuwaiti government on February 26, 1991.
C. Torture and Cruel, Inhuman or Degrading Treatment
Torture and cruel, inhuman or degrading treatment are universally condemned, and prohibited by numerous international instruments(16)as well as the domestic law of most nations. (17)No nation today asserts a right to torture its own or another nation's citizens or to submit them to cruel, inhuman or degrading treatment. Both of these prohibitions have been received into customary international law. (18)That they are sometimes honored in the breach does not diminish their binding status as international law norms. (19)The prohibitions against torture and cruel, inhuman or degrading treatment are nonderogable under international law, even during war or other emergency conditions. (20)
An act constitutes torture if it (1) inflicts severe pain and suffering, either physical or mental, (2) is inflicted by or at the instigation of a public official, and (3) is inflicted for a purpose such as obtaining information or a confession from the victim, punishing the victim, or intimidating the victim or a third person. (21)Cruel, inhuman or degrading treatment is the infliction of physical or mental suffering which does not rise to the level of torture. (22)
A consensus has developed among international law experts that rape, sexual abuse and other forms of gender-based violence are among the acts which constitute torture and/or cruel, inhuman or degrading treatment. (23)The horrible abuse inflicted upon Naimat Farhat including rape and other sexual assault, a gunshot wound to the head, and the terrible experience of hearing the gunshots which killed her father and brother, constitute torture under international law, as does the abuse suffered by hundreds of other noncitizens of Kuwait, as documented in the attached human rights reports.
In addition, the forced expulsion of 90 percent of the preoccupation noncitizen population, including many people who had been born and raised in Kuwait, constitutes cruel, inhuman or degrading treatment under widely accepted international law principles.(24)
D. Discrimination Based on National Origin
Discrimination based on national origin is prohibited by the major U.N. human rights instruments.(25)This prohibition has been accepted into customary international law.(26)As stated by the International Convention on the Elimination of All Forms of Racial Discrimination, art 1, § 1,
In this Convention, the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
The gross human rights abuses suffered by the Farhat family violated their right to be free of discrimination based on their national origin. In addition, the campaign of human rights violations unleashed on the noncitizen population of Kuwait--including summary execution, arbitrary detention, torture and cruel, inhuman or degrading treatment, and forced expulsion from Kuwait--solely because of their national origin, violates the fundamental right to be free of this discrimination.
E. Gender-Based Discrimination
The right to enjoy the most fundamental human rights without distinction based on sex is among those guaranteed by the Universal Declaration of Human Rights and therefore now a part of international customary law.(27) Gender-based violence such as rape, in addition to violating the specific prohibition against torture, also constitutes discrimination against women and thus violates the right to be free from gender-based discrimination.
As stated by the Committee on the Elimination of Discrimination Against Women, "Gender based violence is a form of discrimination which seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men."(28)Gender-based violence encompasses "violence which is directed against a woman because she is a woman or which affects women disproportionately."(29)
Rape, perhaps the most egregious form of gender-based violence, constitutes a form of gender-based discrimination. As noted by Amnesty International, "Although men are sometimes raped in custody by government agents, it is a form of torture primarily directed against women, and to which women are uniquely vulnerable."(30)Thus, the rape and sexual abuse inflicted upon Naimat Farhat constitute gender-based discrimination violation of customary international law.
(7) Economic and Social Council Resolution 1503 (XLVIII), 48 U.N. ESCOR (No. 1A) at 8, U.N. Doc. E/4832/Add.1 (1970). Return to Text
(8) Center for Human Rights, United Nations Office-Geneva, Human Rights Fact Sheet No. 7: Communications Procedures. (1989). Return to Text
(9) See the Vienna Convention on the Law of Treaties, Articles 53, 64 and the Restatement of the Foreign Relations Law of the United States (Third) (1987) § 102, comment k. Return to Text
(10) See Charter of the International Military Tribunal, August 8, 1945, 59 Stat. 1546, 82 U.N.T.S. 279. Return to Text
(11) See, e.g., Restatement (Third), § 702, comment b. Return to Text
(12) See discussion of Kuwaiti government responsibility in a Victory Turned Sours: Human Rights ln Kuwait Since Liberation, Middle East Watch, Sept 1991, at pp. 1-6 (Exhibit A): "Although the Kuwaiti government has attempted to blame individuals beyond its control for those killings, most were committed by official security forces or by irregular armed groups working closely with official forces The highest levels of Kuwaiti government are complicit in these killings [The government's] abdication of responsibility is untenable...." Return to Text
(13) See, e.g., the decision of the United States Supreme Court in In re Yamashita, 327 U.S. 1 (1946), holding a Japanese. general responsible for a pervsive pattern of war crimes committed by his officers when he know or should have known that they were going on but failed to prevent or punish them. Return to Text
(14) See Universal Declaration of Human Rights of 1948, adopted Dec. 10, 1948, G.A. Res. 217A, U.N. GAOR 71, U.N. Doc.A/811 (1948), reprinted in 43 Am. J. Int'l L. Supp. 127 (1949) (article 3 guarantees the right to life, and articles 10 and 11 state that rights can be denied only with due process); International Covenant on Civil and Political Rights, art 6, adopted Dec 16, 1966,G.A Res. 2200, 21 U.N. GAOR Supp. (No 16) at 52, U.N. Doc. A/6316 (1966) 999 U.N.T.S. 171 (entered into force Mar 23, 1976), American Declaration of the Rights and Duties of Man, arts. 1,18, 26, signed May 2, 1948, Res. XXX, Final Act, Ninth Int'l Conf of American States, Bogota, Colombia, Mar 30-May 2, 1948, at 38 (Pan American Union 1948), O.A.S. Off. Rec OEA/Ser. L/V/II.23/Doc.21/Rev.6 (English 1979), reprinted in 43 Am. J Int'l L Supp. 133 (1949): European Convention for the Protection of Human Rights and Fundamental Freedoms, § I, art 2, opened for signature. Nov 4,1950, Europ. T.S. No 5, 213 U.N.T.S. 221 (entered into force Sept.3, 1953); African [Banjul] Charter on Human and Peoples' Rights, arts. 4-7, adopted Jun. 27, 1981, O.A.U. Doc. CAB/LEG/67/3/Rev. 5, (1981), reprinted in 21 I.L.M. 58 (1982) (entered into force Oct 21, 1986). Return to Text
(15) See, e.g., International Covenant on Civil and Political Rights, arts. 4, 6 (the right not to be arbitrarily deprived of life is never derogable, not even in times of public emergency); International Covenant on Economic, Social and Cultural Rights, art. 5, adopted Dec 16, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976); European Convention for the Protection of Human Rights and Fundamental Freedoms, arts. 2, 15 (neither war nor any other public emergency is a justification for summary execution). Return to Text
(16) See, e.g., Universal Declaration of Human Rights, art. 5; International Covenant on Civil and Political Rights, art. 7; American Convention on Human Rights, art. 5; European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 3; African Charter on Human and Peoples' Rights, art. 5; Declaration on tho Protection of All Persons from Being Subjected to Torture and Other Crual, Inhuman or Degrading Treatment or Punishment, art. 2, adopted Dec 9, 1975, G.A. Res. 3452, 30 U.N.GAOR Supp. (No. 34) at 91, U.N. Doc A/1034 (1975) and Convention Against Torture and Other Crual, Inhuman or Degrading Treatment or Punishment, art. 2, adopted Dec 10, 1984, GAOR Res 46, 39 U.N.GAOR Supp (No 51) at 197, U.N. Doc. A/39/51 (1984) (entered into force June 26, 1987). Return to Text
(17) The constitutions of over fifty-five nations prohibit torture either explicitly or implicitly. Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980). Return to Text
(18) See, e.g., Declaration of Tehran, Final Act of the International Conference on Human Rights 3, at 4, para. 2, 23 GAOR, U.N. Doc. A/CONF. 32/41 (1968) (noting status of Universal Declaration of Human Rights, including prohibitions against torture and cruel, inhuman or degrading treatment, as customary international law). Return to Text
(19) J. Brierly, The Outlook for International Law 4-5 (1944) ("States often violate international law, just as individuals violate municipal law but no more than individuals do States defend their violations by claiming that they are above the law"). Return to Text
(20) See, e.g., International Covenant on Civil and Political Rights, art. 4 (derogation from right to be free of torture not permitted even in time of public emergency); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 6, G.A. Res. 43/173, 43 U N GAOR Supp. (No 49) at 297, U.N. Doc A/43/49 (1988) (No circumstance whatever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment"). Return to Text
(21) See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art.1. Return to Text
(22) Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, art.16. [T]orture is at the extreme end of cruel, inhuman and degrading treatment." Convention Against Torture and Other Cruel Inhuman Degrading Treatment or Puninhment, S. Exec. Rap. 30, 101st Cong., 2d Sess. 13(1990) See Ireland v United Kingdom, 25 Eur. Ct. H.R. (Ser. A) 65-67, ¶ 167 (1978); Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1, ¶ 2, G.A. Res. 3452, 30 U.N. GAOR Supp. (No. 34) at 91, U.N. Doc A/10034 (1976) ("Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.") Return to Text
(23) See, e.g., Statemant of the United Nations Special Rapporteur on Torture to the UN Commission on Human Rights, E/CN.4/1992/SR. 21 (Summary Record for the 21st. meeting, February-March 1992) (rape or other forms of sexual assault in detention constitute torture); U.N. Committe on the Elimination of Discrimination Against Women, Adoption of Report, 11th Sess., General Recommendation No.19, at 2, U.N. Doc. CEDAW/C/1992/L.l/ Add. l5 (1992) (gender-based violence violates the right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment). See also U.N. Economic and Social Council Commission on the Status of Women, Physical Violence Against Detained Women that is Specific to their Sex, 34th Sess., Agenda item 5, U.N. Doc. E/CN. 6/1990/L. 18 (1990) (calls upon Members States to take appropriate measures to eradicate these acts of violence and to report to the Secretary General on legislation and other measures they have taken to prevent such violence).
See also U.S. Department of State, Country Report on Human Rights Practices for 1991 (1992) (characterizing rape by government agents as a form of torture); International Human Rights Abuses Against Women: Hearings Before the Subcomm. on Human Rights and International Organizations of the House Comm. on Foreign Affairs, 101st Cong., 2d Sess. 142 (1990) (testimony of Paula Dobriansky, Deputy Assistant Secretary, Bilateral and Multilateral Affairs, Bureau of Human Rights and Humanitarian Affairs) (rape in detention is form of torture); Cable from Secretary of State to All Diplomatic and Consular Posts Re: Instructions for 1991 Country Reports on Human Rights Practices, P 211857Z (August 1991) (rape and other sexual abuse during arrest and detention or as a result of operations by government or opposition forces in the field constitute torture and other cruel, inhuman, or degrading treatment or punishment); Return to Text
(24) Deportation or expulsion from one's own country without due process, or under exceptional circumstances such as discriminatory application of law or the intentional infliction of physical or mental suffering, constitutes cruel, inhuman or degrading treatment. See East African Asians v. United Kingdom, 3 Eur. H.R.Rep. 76, at paras. 186-88 (Eur Comm'n H.R. 1973); cruel, inhuman or degrading treatment includes the creation of "a state of anguish and stress by means other than bodily assault." Report of November 5, 1969, Greece v. United Kingdom, Yearbook XII 461 (1969) cited in P. van Dijk & G. van Hoof, Theory and Practice of European Convention on Human Rights (1990), at 228 n. 75, 232, 235-36. See also, Tyrer Case, 26 Eur. Ct. H.R. (ser. A) 15, at ¶ 30 (1978) (distinctive element of degradation is degree of humiliation adjudged according to circumstances of individual case.) Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) 65-67, at ¶¶ 166-68 (1978) (minimum level of severity required to determine violation depends on circumstances of particular case including duration of treatment and physical and mental effects).Return to Text
(25) See, e.g., Universal Declaration of Human Rights, art. 2; International Covenant on Civil and Political Rights, art. 2; Declaration on the Elimination of All Forms of Racial Discrimination, preamble; International Convention on the Elimination of all Forms of Racial Discrimination, 660 U.N.T.S.195, enter into force Jan 4, 1969, art. 1. Return to Text
(26) See, e.g., Declaration of Tehran, Final Act of the International Conference on Human Rights 3,¶ 2, (noting status of Universal Declaration of Human Rights as customary International law).Return to Text
(27) Universal Disclaration, art. 2; see, e.g., Declaration of Tehran, Final Act of the International Conforence on Human Rights 3, ¶ 2, (noting status of Universal Declaration of Human Rights as customary international law). Return to Text
(28) General Recommendation No. 19 (eleventh session, 1992), Violence against women. Cedaw/C/l992/L.l/Add.15, Jan. 29, 1992,¶ 1, p. 1. Return to Text(29) Id.,¶ 7,p. 2. See also, Summary Record, Commission Human Rights (Feb. 1992), ¶ 35, p. 8, E/CN.4/1992/SR.21. Return to Text
(30) Rape and Sexual Abuse: Torture and Ill Treatment of Women in Detention, January 1992, at 2. Return to Text
According to Resolution 1 (XXIV) of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, exhaustion of domestic remedies is not required "if it appears that such remedies would be ineffective or unreasonably prolonged."(31)In this case, no effective domestic remedies are available to the petitioners. The government of Kuwait has made every effort to thwart petitionors' attempts to obtain justice, including threatening witnesses, and has failed to respond to petitioners repeated attempts to discuss their demands. Additional attempts would only put the lives of all those involved at risk. The Farhats have no other recourse but the United Nations Commission on Human Rights.
The
(31) Sub-Commission on Provention of Discrimination and Protection of Minorities, Resolution 1 (XXIV), U.N. Doc. E/CN. 4/1070, at 50-51(1971). Return to Text
Your Excellency:
I am writing on behalf of Maimane, Naimat, Naim and Mohktar Farhat, who have asked me to represent them in their efforts to redress the grave injustice committed against their family by Kuwaiti security forces in March 1991. My clients have made several attempts to bring this situation to the attention of your government, but have yet to receive a serious response.
Their tragic story is as follows: Ismail Farhat and his wife, Maimane, Lebanese citizens, were living in Kuwait City at the time of the invasion along with their children, Osama and Naimat. During the occupation, the family worked courageously alongside the Kuwaiti resistance.
Despite these efforts, however, just a few days after the Iraqi retreat, a Kuwaiti resistance fighter came to their house and accused them of collaboration with the Iraqis. He then murdered Ismail and Osama in cold blood, raped Naimat, and shot her in the head. Naimat survived, but with serious physical and psychological scars.
Due to the strenuous efforts of her brothers, Mohktar and Naim (a U.S. citizen), Naimat was able to come to the United States for medical treatment. She continues to require medical care and physical and psychological therapy, and is unable to work. Before this brutal assault, Naimat had worked and supported herself; now she is permanently disabled and dependent upon the support of others.
The tragedy which befell the Farhat family has been documented by several human rights organizations and by the media around the world, and has been the subject of concern on the part of many members of the U.S. Congress and the U.S. Ambassador to Kuwait. Nevertheless, and despite repeated attempts to contact you and members of your government, the family has been unable to attain their just demands:
(1) a full investigation of the vile crime;
(2) punishment of the perpetrators; and,
(3) compensation for the deaths of Ismail and Osama and for the physical and emotional injuries to Naimat.
At their request, I am now exploring several means to obtain justice for the Farhats. My preference, of course, would be to assist them without the need to pursue formal legal action. I am sure that you and your government do not condone the abuses inflicted on the Farhat family. For that reason, I ask that you authorize a representative of your government to meet with myself and the Farhats as soon as possible to discuss their demands, including compensation for their losses.
As I have explained to the Farhat family, the prohibitions against torture and summary execution are considered by the world community to be "peremptory norms of international law," also known as "jus cogens" norms. This means that these standards are mandatory, are binding on all nations, and must be enforced by all governments, even when in conflict with local law.
Another important principle of international law also applies to the Farhat family and their demands for justice: a government is held legally responsible for any violations of fundamental international norms committed by its representatives. Thus, the governuent of Kuwait is legally responsible for the Farhats' ordeal, and it is to your goverment that they now look for satisfaction of their just demands: investigation, punishment and compensation.
International law provides several legal options to the victims of international law violations. I have described two legal channels to the Farhats. First, I have explained to them that U.S. law permits noncitizens to sue in U.S. court for violations of fundamental human rights committed anywhere in the world, under the Alien Tort Claims Act, 28 U.S.C. § 1350. This law calls for large monetary judgments to compensate victims of summary execution (Ismail and Osama Farhat) and torture (Naimat Farhat), and to deter future wrongdoing by those responsible.
My office pioneered the development of this line of cases, and has obtained substantial monetary judgments against international human rights abusers. For example, in Filartiga v. Pena, 577 F.2d 860 (E.D.N.Y. 1984), a U.S. federal district court awarded over $10 million to the family of a young man tortured and brutally murdered by a Paraguayan police officer. Similary, lawsuits against an Argentine general resulted in awards of almost $90 million. We currently have several additional cases pending, each seeking multi-million dollar judgments in compensation for human rights abuses.
The second legal avenue I have discussed with my clients is to present several claims against your government to different branches of the United Nations international human rights systems. This would include filing a written complaint with the United Nations Human Rights Commission. In addition, both that Commission and the sub-commission on Prevention of Discrimination and Protection of Minorities hold public hearings in August and February each year. These hearings would provide the Farhats an opportunity to make a public presentation to the international community about their ordeal and to assert their just demands for compensation from your government.
At that time, the Farhats would also be able to present their case to the special rapporteurs on torture and summary execution as well as members of the Sub-Commission investigating the right to restitution, compensation, and rehabilitation for victims of gross violations of human rights, who attend the public hearings. The family would also take the opportunity to bring their case to the attention of the observer governments and the United Nations press corps.
Other relevant United Nations mechanisms available to the Farhat family include tbe Committee against Torture, the Economic and Social Council, and the General Assembly itself. Also, the Committee on the Elimination of Racial Discrimination could address their claim of mistreatment based on national origin, and both the Commission on the Status of Women and the Committee on the Elimination of Discrimination Against Women could hear a complaint from Naimat concerning the brutal assault she endured.
It is still our hope that it will be possible to obtain redress without pursuing any of these paths. We ask that you authorize a representatlve of your government to meet with myself and the Farhats as soon as possible.
Thank you for your attention.
Sincerely,
Beth Stephens, Esq.
cc: Hon. Edward W. Gnehm, Jr., U.S. Ambassador to Kuwait
Hon. Sheik Saud Nasir Al-Sabah, Kuwaiti Ambassador to U.S.