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Bidun in Kuwait face widespread and systematic discrimination on the basis of their origin and status.22 In many instances this discrimination results in violations of civil and political rights protected by the Covenant, such as the right to leave and return to one's own country, the right to marry and found a family, children's right to be registered immediately after birth, and children's right to acquire a nationality. In addition, Kuwaiti laws and practices which discriminate on the basis of sex and religion frequently have a disproportionate impact on Bidun individuals and families, particularly with regard to issues of nationality and naturalization in the case of discrimination based on sex and religion, and with regard to marriage, divorce, and family reunification with regard to discrimination based on sex. Finally, government policies discriminating against the Bidun are also responsible for serious violations of economic and social rights, such as the right to work, the right to education, and the right to health.23
The Kuwaiti government's failure to take Bidun human rights seriously was reflected recently in the government's first periodic report to the Human Rights Committee on its implementation of the ICCPR. This report, amazingly, made no mention whatsoever of the Bidun. When questioned by the Committee, the government delegation repeatedly sought to justify Kuwait's discriminatory treatment of Bidun by referring to them as "illegal residents" who may in some cases be deserving of a "humanitarian" solution, but who have few if any claims to rights in Kuwait.24
This position contravenes Kuwait's obligations under the ICCPR, which requires all states parties to guarantee effective enjoyment of the rights set out in the treaty "to all individuals within its territory and subject to its jurisdiction," and to do so without discrimination. 25 The rights of non-citizens under the Covenant are further specified in the Human Rights Committee's General Comment 15, which states:
In general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness. Thus, the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in Article 2 thereof. Exceptionally, some of the rights recognized in the Covenant are expressly applicable only to citizens (Article 25), while Article 13 applies only to aliens.26
Although discrimination against the Bidun takes many forms, here we focus on those Kuwaiti laws and practices which lead directly to violations of the ICCPR. In addition, as some government policies which do not directly violate the ICCPR may nevertheless undermine Bidun's ability to enjoy rights and freedoms guaranteed in the Covenant, these too are addressed where relevant.
Background
There are approximately 120,000 Bidun resident in Kuwait. 27 An estimated 240,000 are living outside the country, many of whom wish to return to Kuwait but have not been permitted to do so by the government.28 The term Bidun is short for the Arabic phrase meaning "without nationality" (bidun jinsiya), 29 and in Kuwait refers to longtime residents of Kuwait who, under the terms of Nationality Law 15/1959, should be eligible for Kuwaiti nationality by naturalization but who have not been granted it. This group includes:
· Individuals descended from nomadic groups whose ancestral lands are within the borders of present day Kuwait but who were unable to claim automatic citizenship under the Nationality Law of 1959 because they could not prove continuous settled presence in Kuwait from 1920, as that law requires.
· Individuals who could have registered as citizens under the Nationality Law and earlier citizenship regulations but neglected to do so.
· Individuals who attempted to claim citizenship under the Nationality Law and earlier citizenship regulations and whose applications were accepted for consideration but never acted upon by the Kuwaiti authorities.
· Individuals who migrated to Kuwait from nearby countries to work and over time lost effective links to and effective nationality in their country of origin, as well as children of such migrants who failed to establish nationality in their parents' country of origin.
· Children of Bidun parents, including notably the children of Kuwaiti mothers and Bidun fathers.
Until the mid-1980s the Kuwaiti government treated Bidun as lawful residents of Kuwait whose claims to citizenship were being considered, a status that distinguished them not only from other foreign residents but also from other groups of stateless residents, such as Palestinians from Gaza. The number of Bidun was included in the total number of Kuwaiti citizens in the Ministry of Planning's Annual Statistical Abstract, and Bidun were issued with documents identifying them as Bidun. With the exception of voting rights they received the benefits of full citizens, including subsidized housing, education, and health services. Bidun made up the vast majority of the rank and file of all branches of the police and military, and were eligible for temporary passports under article 17 of Passport Law 11/1962. Intermarriage among Bidun and Kuwaiti citizens was and is common, and because of the vagaries of the implementation of the Nationality Law it is not unusual for a single family to have members with different citizenship statuses: original citizenship,30 citizenship by naturalization, and Bidun.
In 1985 the government began applying provisions of Alien Residence Law 17/1959 to the Bidun and issued a series of regulations stripping the Bidun of almost all their previous rights and benefits. In 1986 the government severely restricted Bidun's eligibility for travel documents.31 It also fired government employees not employed by the army or the police who could not produce valid passports, whether issued by Kuwait or another country, and instructed private employers to do the same. In 1987 the government began refusing to issue Bidun new or renewal driver's licenses or register their cars, and began ending public education for Bidun children and instructing private schools to require valid residency permits. In 1988 the ban on public education was extended to the university, and Kuwaiti clubs and associations were instructed to dismiss their Bidun members. Also beginning in 1988, statistical data on Bidun in the government's Annual Statistical Abstract was transferred from the Kuwaiti category to alien population categories.
Restrictions increased in the aftermath of the 1990-1991 Iraqi occupation of Kuwait. Bidun who fled to Iraq to escape the air war found themselves stranded there when Kuwait refused to allow the reentry of all but a few.32 Bidun government employees were dismissed en masse, and only a small portion were later rehired. Beginning in 1993 Bidun were also required to pay fees to utilize health care centers, although those services remained free for Kuwaiti citizens. Bidun not employed by the government found themselves facing serious obstacles when seeking to register births, marriages, divorces, and deaths, because they lacked the required identification and were typically required to go through lengthy security checks before the Ministry of Interior would issue a letter of no objection.
More recently, in May 2000, the Kuwaiti National Assembly passed amendments to the Nationality Law which were intended to be the final statement on which Bidun would be eligible for naturalization, and in June 2000 the Ministry of Interior ended a nine month program during which Bidun who signed affidavits admitting to a foreign nationality and renouncing claims to Kuwait nationality could apply for a five year residency permit and other benefits. Official statements regarding both policies, as well as actions taken by ministries implementing these policies, raise serious concerns about their impact on human rights, and are addressed in the sections which follow.
The Right to Leave and Return to One's "Own Country"
In addition to the broad coverage the Covenant provides to all individuals within a state's territory and subject to its jurisdiction, the ICCPR also recognizes the special rights of individuals who have a strong connection to a country but are not necessarily nationals of that country. Thus, article 12(2) states that "[e]veryone shall be free to leave any country, including his own," while article 12(4) states that "[n]o one shall be arbitrarily deprived of the right to enter his own country." Article 12(3) provides that the right to leave a country may in some circumstances be subject to restrictions "which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant." There are, however, no allowable restrictions under international law on the right to return to one's own country.
The Human Rights Committee explained the meaning of "his own country" in its General Comment 27, saying the term "embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien," and may include "categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence."33 The Committee further noted that the "the right to leave a country must include the right to obtain the necessary travel documents."34
Kuwait refuses to acknowledge the right of return of, and arbitrarily denies re-entry to, many Bidun who can claim Kuwait as their "own country." This is the case particularly with regard to Bidun who became stranded abroad after the 1991 liberation of Kuwait from Iraqi occupation. When the Human Rights Committee recently questioned Kuwait's failure to acknowledge this group's right of return, Kuwait's representative responded: "The state of Kuwait does not prohibit a person who left Kuwait during the invasion from returning to Kuwait if that person has a valid [foreign] passport and qualifies for a visa according to the law." 35 This response further demonstrates that Kuwait is not fulfilling its obligations to facilitate the right of return, which under the terms of the Covenant cannot be made dependant on a person's ability to obtain a foreign passport or qualify for a Kuwaiti visa.
In addition to denying reentry to Bidun who have gone abroad, Kuwait has also carried out deportations of Bidun, and then denied them re-entry to what effectively constitutes their "own country." Under article 16 of Alien Residence Law 17/1959, the Minister of Interior may deport non-Kuwaiti nationals by administrative action if he determines that they have "no recognizable source of livelihood;" if he "believes that the deportation is mandated by public interest, public security, or public morals;" or if a court orders them deported after sentencing them in a criminal case.36 Administrative decisions to deport non-Kuwaitis are explicitly excluded from judicial review.37
Recent statements by Kuwaiti government officials suggest that the government may be considering additional deportations of Bidun. On June 27, 2000, the Ministry of Interior ended a nine-month program during which Bidun were pressured to sign affidavits admitting a foreign nationality and renouncing claims to Kuwait nationality in exchange for the opportunity to apply for a five year residency permit and other benefits.38 Immediately following the June 27 deadline, Ministry of Interior officials announced the Ministry would begin turning over files of Bidun who had not "regularized their situation"39 to the Prosecution Office and seek the deportation of individuals convicted of violations of the Nationality Law or the Alien Residence law.40 Prosecutions began on July 8, 2000.41 Later that month, Attorney General Mohammad al-Zu`abi announced that the Minister of Interior had issued a decree to establish a committee to deal with the cases of Bidun who are ordered to be administratively or judicially deported.42
In addition to preventing Bidun from entering their "own country," Kuwait also limits their ability to leave their "own country" by placing severe and arbitrary restrictions on the circumstances under which it will grant Bidun travel documents. Thus, Bidun must specify why they wish to travel when applying for travel documents, and those that are provided are typically limited period, single use documents issued under article 17 of Passport Law 11/1962. No documents for travel for pilgrimage to Mecca were issued prior to 2000,43 travel documents for educational reasons are exceedingly difficult to obtain, and persons wishing to travel for medical treatment must submit medical documents attesting that appropriate treatment is not available in Kuwait.44 The director general of the Interior Ministry's General Administration for Nationality and Travel Documents has asserted that the ministry places "no specific conditions" on Bidun applicants for travel documents and that the Minister of Interior himself makes all decisions, while acknowledging that the minister's policy is to restrict the number of travel documents issued to Bidun. 45
Based on the Bidun's long residence in Kuwait, family ties, and integration into Kuwaiti society, Human Rights Watch believes there is a strong presumption that most or all of the Bidun, both those currently inside or outside Kuwait, meet the test of "special ties to or claims in relation to a given country" that make Kuwait their "own country."
Those Kuwaiti laws and policies which arbitrarily deny Bidun the right to enter Kuwait, including those which allow for judicial and administrative deportations based upon considerations or criminal convictions arising directly from their status as Bidun, violate article 12(4) of the ICCPR. In addition, Kuwait's severe and arbitrary restrictions on granting Bidun travel documents appear to violate article 12(2) of the ICCPR. Insofar as the Bidun lack an effective nationality, the responsibility to issue Bidun with travel documents must fall on the government of Kuwait. Thus far, Kuwait has not provided any information to show that the restrictions that are currently in existence and applied to the Bidun are necessary for, and proportional to, the purposes specified in article 12(3) of the ICCPR.46
In its Concluding Observations to Kuwait's ICCPR review, the Human Rights Committee stated:
In view of the fact that many of these people are born or have been living in the territory of Kuwait for decades, and some are in the service of the government, the Committee is gravely concerned by the sweeping statement of the Delegation characterizing the Bedoons as "illegal residents". The Committee is concerned that many Bedoons, long resident in Kuwait, who left the country during the Iraqui occupation in 1990-91 are not permitted to return to Kuwait. The State party must ensure that all persons in its territory and subject to its jurisdiction, including Bedoons, enjoy Covenant rights without discrimination (article 26). The right to remain in one's own country and to return to it must be scrupulously respected (article 12).
The Committee urged Kuwait "to refrain from deporting residents on the basis of classifying them as Bedoons who have failed to regularize their status," and said Kuwait "should ensure that all the rights protected under the Covenant are respected" with regard to persons detained awaiting deportation.
"My father had bad luck. He tried to register in the 1960s but when he went to register it had closed the week before. I admit we were lazy, but no one knew it would be important. They gave him an appointment but when he went they told him [the period] for accepting people for registration had ended."
-- Bidun born and raised in Kuwait 47
In theory, Kuwait's Nationality Law provides numerous means for individuals to acquire Kuwaiti nationality. However, many of its provisions violate the principle of non-discrimination on the basis of gender, religion, or status, and undermine the ability of children to exercise their right to acquire a nationality. In addition, implementation of the naturalization provisions in the Nationality Law has been highly arbitrary and lacking in transparency. In the past the Ministry of Interior has failed to provide applicants with clear, detailed information regarding the criteria used in making decisions; engaged in lengthy and unexplained delays in making decisions; and failed to make public any procedures and mechanisms to allow applicants to submit supporting evidence, challenge evidence supplied by the ministry, and appeal ministry decisions.48 Administrative decisions on nationality are not subject to judicial review,49 and legislative committees dealing with complaints have failed to ensure effective remedy in cases of abuses.50 Although official figures are difficult to obtain, it appears that only a very small number of the individuals eligible for naturalization have been naturalized, and many of those naturalized are not Bidun.
Requirements for Nationality and Naturalization
Article 1 of the Nationality Law creates a category of "original Kuwaiti nationals" who are, by nature of that status, eligible for a higher level of rights and protections in Kuwaiti law.51 They are defined as "persons who were settled in Kuwait prior to 1920 and who maintained their normal residence there until the date of the publication of the law [May 21, 1959]."52 Persons who could not prove settled residence, including many from tribal and nomadic backgrounds who are now Bidun, were excluded from automatic nationality.
With the exception of children born to Kuwaiti fathers (but not to Kuwaiti mothers) and children born in Kuwait to unknown parents, who are condidered Kuwaiti by birth, all other Kuwaiti citizens are naturalized. The Nationality Law contains five articles which provide for naturalization, all subject to the discretion of the Ministry of Interior. Article 3 allows naturalization of the child of a Kuwaiti mother and an unknown father. Article 4 allows naturalization of any adult who meets the following conditions:
1. that he has lawfully resided in Kuwait for at least twenty consecutive years or for at least fifteen consecutive years if he is an Arab belonging to an Arab country....
2. that he has a lawful means of earning his living, is of good character and has not been convicted of an honor-related crime or of an honesty-related crime;
3. that he has knowledge of the Arabic language;
4. that he possesses qualifications or renders services needed in Kuwait;
5. that he be an original Muslim by birth, or that he has converted to Islam according to the prescribed rules and procedures and that a period of at least five years has passed since he embraced Islam before the grant of naturalization. Nationality thus acquired is ipso facto lost and the decree of naturalization rendered void ab initio if the naturalized person expressly renounces Islam or if he behaves in such a manner as clearly indicates his intention to abandon Islam. In any such case, the nationality of any dependant of the apostate who has acquired it upon the naturalization of the apostate is also rendered void.
The number of individuals naturalized according to article 4 is further limited by the requirement that legislation be passed setting the quota for naturalization in a given year. According to one Ministry of Interior official speaking in April 2000, there has been "no naturalization under article 4 for years" because no such quota had been set.53 Indeed, while there were twenty nationality-related laws and decrees passed in the period from December 1959 to September 1997, only one, Law 49/1984, sets a quota for naturalizations under article 4.54
Under article 7 of the 1959 law, minor children of naturalized fathers are automatically naturalized, but the foreign wife of a naturalized Kuwaiti man must declare her desire for naturalization within one year of her husband's naturalization to be eligible for naturalization through him. A foreign wife of a Kuwaiti national may also be eligible for naturalization through her husband under article 8. A wife becomes eligible after the passage of fifteen years after declaring her desire for naturalization, provided she remains married for that full period.55 In the case of divorce or death of the husband before the end of the fifteen year period, wives who have a child from that husband and who have maintained their legal residence in Kuwait for the full period are eligible for naturalization. There are no provisions in the law for foreign husbands to acquire nationality through their Kuwaiti wives.
Article 7(bis), added in May 1998, allows naturalization of children of naturalized fathers who were adults at the time of the father's naturalization, as well as adult grandchildren born to his sons, and any minor grandchildren born to dead sons if the sons had not been naturalized before his death. The law explicitly excludes children and grandchildren of a naturalized man's daughters, and further specifies that only applications submitted within one year of its passage would be considered. Persons naturalized pursuant to this article must also meet the conditions in articles 4(2), 4(3), and 4(5).
On May 16, 2000, Kuwait's National Assembly passed legislation intended to allow naturalization under article 5 of the Nationality Law of some Bidun who had proof of long-time residency or were children of Kuwaiti mothers. As amended, article 5 now allows the naturalization of persons who rendered valuable services to Kuwait; children of Kuwaiti mothers and fathers who are prisoners of war, dead, or have irrevocably divorced the mothers; persons resident in Kuwait in and before 1965, as well as their descendants, if the descendants are born and resident in Kuwait, providing the applicants have maintained their Kuwaiti residency until the issuance of a decree naturalizing them.56 Persons eligible for nationality under article 5 must also meet the conditions in article 4(2), 4(3), and 4(5). As with article 4, no naturalizations based on long-term residence can take place in a given year until legislation is passed setting the quota for naturalization in that year -- such legislation was passed only once in the period from December 1959 to September 1997.57 Legislation passed on May 18, 2000 set a quota of 2000 applicants and their families for the year 2000.
Nationality and Equality Before the Law
"Here nationality is granted by connections (wastat) and payments."
-- National Assembly Member Hussayn al-Qalaf 58
In addition to the general requirement in article 2 of the ICCPR that its application be non-discriminatory, the ICCPR provides several other guarantees of equality and non-discrimination. Article 26 guarantees everyone equal protection before the law:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Similarly, with regard to gender equality, article 3 of the ICCPR provides for "the equal right of men and women to the enjoyment of all civil and political rights" in the Covenant, while article 23(4) requires states parties to "take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children." The Human Rights Committee has stressed the applicability of this article to issues of nationality and naturalization, declaring: "With regard to equality as to marriage, the Committee wishes to note in particular that no sex-based discrimination should occur in respect of the acquisition or loss of nationality by reason of marriage."59
In its Concluding Observations on Kuwait's review, the Human Rights Committee stated that Kuwait "should confer its nationality on a non-discriminatory basis and ensure that those who are granted Kuwaiti nationality are treated equally with other Kuwaiti citizens with regard to voting rights (articles 25, 26 of the Covenant)."60 The Committee also expressed concern "about other instances of discrimination, in particular the naturalization of Muslim applicants exclusively," and said that "the laws on naturalization and nationality should be amended to ensure that their application does not entail discrimination on any of the grounds enumerated in Article 26 of the Covenant."61
The provisions of the Kuwaiti Nationality Law which deny Kuwaiti women the right to pass their nationality to their children, and which provide lower levels of rights and protections to naturalized citizens in comparison with "original" citizens, violate article 26 of the ICCPR. Furthermore, the provisions in the Nationality Law which exclude foreign or Bidun spouses of Kuwaiti women from the opportunity to apply for nationality based on marriage, and which differentiate in the treatment of children of divorced Kuwaiti mothers and non-Kuwaiti fathers depending on the type of divorce, violate the article 23(4) requirement that states ensure equality of rights and responsibility of spouses and make provision for the protection of children after a marriage's dissolution.
Provisions that discriminate in granting nationality against children born to Bidun parents, and against children born to Bidun fathers and Kuwaiti mothers, violate the right of children to acquire a nationality in article 24(3) of the ICCPR, discussed below.
Other Nationality Law provisions regarding naturalization also violate the guarantee of equality before the law in article 26 of the ICCPR. Of special concern in this regard are provisions requiring that applicants for naturalization be Muslim, and for denaturalizing "apostates" from Islam and their dependants. Denaturalization in this manner also may constitute a violation of the right to freedom of religion set out in article 18 of the ICCPR. In particular, article 18(2) requires that "No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice."
Finally, Kuwait's failure to provide effective remedies for ICCPR violations related to nationality and naturalization is a violation of its obligations under article 2(3) of the ICCPR. Article 2(3)(a) requires states to ensure that persons whose rights or freedoms guaranteed in the treaty are violated have an effective remedy, while article 2(3)(b) requires states parties "to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy."
Children's Entitlement to Protections Based on Their Status as Minors
The ICCPR provides a number of additional protections specific to children. Among these is article 24(1), which states that "Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State." The Human Rights Committee has stated that:
such measures, although intended primarily to ensure that children fully enjoy the other rights enunciated in the Covenant, may also be economic, social and cultural. For example, every possible economic and social measure should be taken to reduce infant mortality and to eradicate malnutrition among children and to prevent them from being subjected to acts of violence and cruel and inhuman treatment or from being exploited by means of forced labour or prostitution, or by their use in the illicit trafficking of narcotic drugs, or by any other means. In the cultural field, every possible measure should be taken to foster the development of their personality and to provide them with a level of education that will enable them to enjoy the rights recognized in the Covenant, particularly the right to freedom of opinion and expression.62
Two such measures of protection specified in the Covenant are the right to be registered at birth and the right to acquire a nationality.63 Article 24(3) states that "Every child has the right to acquire a nationality." The Human Rights Committee has said that "the purpose of this provision is to prevent a child from being afforded less protection by society and the State because he is stateless."64 While noting that article 24(3) "does not necessarily make it an obligation for States to give their nationality to every child born in their territory," the Committee further states that:
States are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born. In this connection, no discrimination with regard to the acquisition of nationality should be admissible under internal law as between legitimate children and children born out of wedlock or of stateless parents or based on the nationality status of one or both of the parents."65
As noted earlier, Kuwait's Nationality Law contains no provision for the child of two stateless parents to acquire nationality at birth, and only limited opportunities for the child of a stateless father and Kuwaiti mother to acquire nationality through petitioning the Minister of Interior. Nor does the Kuwaiti government appear to have engaged in cooperative efforts with other governments to facilitate Bidun children born in Kuwait claiming non-Kuwaiti nationalities at birth.66
Article 24(2) states that "Every child shall be registered immediately after birth and shall have a name," a provision which the Human Rights Committee has said "is designed to promote recognition of the child's legal personality."67 The government of Kuwait has asserted that it does issue some Bidun birth certificates.68 However, in practice, the majority of Bidun, namely those without fathers employed by the government or Kuwaiti mothers, face tremendous difficulties in obtaining birth certificates and many other basic civil documents, including death certificates, registrations of marriage,69 and driver's licenses. Since Bidun lack proof of nationality, they are unable to obtain the civil identification document (ID) one normally shows as proof of identity when applying for such documents. In the absence of a civil ID, government offices typically require a letter of no objection from the Ministry of Interior's Executive Committee on Illegal Residents, which the Executive Committee may or may not issue, at its discretion. The policy appears intended as yet another way to pressure Bidun to obtain a non-Kuwaiti nationality, especially as Bidun who do attempt to obtain these letters are subjected to lengthy security checks and their requests may be denied.
Statements by government officials appear to support this analysis. For example, in 1999 Minister of Health Mohammad al-Jarrallah asserted that his ministry would not refuse to issue birth certificates if Bidun met all the conditions in the law, including provisions requiring proof of the parent's nationality.70 Then, beginning in July 2000, the Ministry of Interior reportedly issued instructions to the Ministry of Health not to issue birth certificates to newborns with Bidun fathers unless the fathers had renewed "security ID cards" from the Executive Committee.71 The director of the Executive Committee stated in an interview that the Committee would only issue new "security ID cards" to those Bidun registered in the 1965 census, or with official documents proving residence in Kuwait prior to 1965, and that those who were ineligible would have to "regularize their situation."72
Kuwaiti government policies also limit Bidun children's access to education and health care.73 Unlike Kuwaiti citizens, since 1993 Bidun have been required to pay for access to government health clinics.74 In 1987 the government ended public education for Bidun children and instructed private schools to require valid residency permits, and in 1988 the ban on public education was extended to the university. Bidun who remained employed by the government were issued residency permits and received subsidies for their children's education.75 In the mid-1990s the enforcement of the ban on private education was somewhat relaxed, although it is not clear how many Bidun could afford to take advantage of the change in policy.76 In August 1999 the Ministry of Education announced that Bidun children would be allowed to attend private schools during the 2000/2001 academic year if their parents could produce identification cards issued by the Ministry of Interior's Executive Committee on Illegal Residents in the case of civilians, and identification cards or letters from their supervisors in the case of those Bidun parents employed by the military or police.77 As of August 2000 it was still not clear if the Executive Committee's new policy limiting the issuance of ID cards to those Bidun registered in the 1965 census, or with official documents proving residence in Kuwait prior to 1965, would affect Bidun children's ability to register for the 2000/2001 school year, or what affect it would have on Bidun's access to government subsidized health centers.
The Human Rights Committee expressed concern in its Concluding Observations about the impact of Kuwaiti government policies on Bidun children, noting "the lack of information concerning the situation of children of non-Kuwaiti parents living in Kuwait, in particular with regard to education, medical care, and the issuance of birth and death certificates." The Committee went on to say that it was "further concerned that children who are born in Kuwait and whose parents are stateless or only the mother has Kuwaiti nationality do not acquire any nationality."78 The Committee concluded that "The state party should ensure the right of all children in Kuwait to measures of special protection pursuant to Article 24 and 26 of the Covenant. The State party is under an obligation to respect Article 24, paragraph 3, of the Covenant, in order to ensure that every child has the right to acquire a nationality."
The Right to Marry and Found a Family
"What future do my children have? There isn't hope, there isn't stability. I tell my father, why did you let me marry?"
-- Bidun father79
Article 23(2) of the ICCPR states that "The right of men and women of marriageable age to marry and to found a family shall be recognized." In its General Comment 19 the Human Rights Committee said that:
The right to found a family implies, in principle, the possibility to procreate and live together...[and] the possibility to live together implies the adoption of appropriate measures, both at the internal level and as the case may be, in cooperation with other States, to ensure the unity or reunification of families, particularly when their members are separated for political, economic or similar reasons.80
In practice, families with Bidun members face discriminatory laws and policies which undermine both the right to marry and their ability to live together as a family. In some instances the violation stems from the government's insistence on treating Bidun as foreigners while penalizing them for not providing proof of a foreign nationality; in other instances it reflects discrimination on the basis of sex. Thus, Bidun face difficulty registering marriages between Bidun couples or between a Bidun and a Kuwaiti citizen because the Bidun member(s) of the couple lacks a civil ID and must obtain a letter from the Ministry of Interior and complete a lengthy security check. However, without proof of legal marriage, women lose recourse to the courts in almost all matters involving personal status law, including disputes involving divorce, maintenance, and child custody.81
Similarly, Bidun families may be split between countries, either as a result of the government's refusal to allow the re-entry of a Bidun member, or because the government treats the Bidun husband and adult children of Kuwaiti women as foreigners who require a "sponsor." Kuwaiti women who meet minimum income standards can petition to sponsor a husband or adult child, but only for one year, after which time the husband or adult child must find legal employment in order to maintain legal residency. As "foreigners" a husband and adult child also are subject to annual residency fees.
As indicated above, Kuwait entered a reservation to article 23 when it ratified the ICCPR, seeking to avoid changing any provisions in its domestic laws regarding marriage and the family. It asserted that "the matters addressed by Article 23 are governed by personal-status law, which is based on Islamic law," to which Kuwait effectively wishes to give precedence over the ICCPR. But this is fundamentally to undermine certain of the key rights contained in the ICCPR, and notably the peremptory norm of non-discrimination in enforcement and enjoyment of the rights of the Covenant. Moreover, the violations of article 23(b) we have described also constitute impermissible violations of the ICCPR's guarantee of non-discrimination in article 2(1), the guarantee of equal rights between men and women in article 3, and the guarantee of equality before the law in article 26.
22 For a more extensive discussion of this discrimination, including extensive case studies, see Human Rights Watch/Middle East, The Bedoons of Kuwait: "Citizens without Citizenship" (New York: Human Rights Watch, 1995).
23 Kuwait is state party to the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Article 6 of the ICESCR provides for the right to work; article 12 for the "right to the highest attainable standard of mental and physical health"; and article 13 for the right to education.
24 Comments by Ambassador Dharar A.R. Razzooqi, Permanent Mission of Kuwait to the United Nations (Geneva), 1851st Meeting of the United Nations Human Rights Committee, July 18, 2000.
25 ICCPR, article 2(1), emphasis added. Similar language appears in article 26, on non-discrimination and the right to the equal protection of the law.
26 U.N. Human Rights Committee General Comment 15, The Position of Aliens under the Covenant, Twenty-seventh Session, 1986, (hereafter, General Comment 15), paras. 1 and 2.
27 Ministry of Interior officials' statements on the Bidun population are often contradictory. During the Human Rights Committee review, Jamal K. al-Reesh of the Ministry of Interior's Executive Committee on Illegal Residents (also known as the "Bidun Committee") stated at different times that the Executive Committee had 121,285 persons currently registered; that the number of Bidun had dropped to 102,004 due to changes in the Nationality Law; and that "there are 302,000 people claiming such status as Bidun today." 1851st and 1853rd meetings of the United Nations Human Rights Committee, July 18-19, 2000.
28 Estimate of population living abroad based on Kuwaiti official estimates of a Bidun population of 260,000 at the time of the 1990 Iraqi invasion, with a 3.5 per cent growth rate per annum.
29 In the 1980s the government also began using the term "of undetermined nationality" (ghayr muhaddad al-jinsiya) to refer to this group, and since 1993 it has also used the term "illegal residents" (muqimun bisura ghayr qanuniya). Despite the new official terminology, in meetings with Human Rights Watch in April 2000 officials from the Ministry of Interior continued to refer to this group as Bidun and distinguish between Bidun and other "illegal residents" like visa overstayers.
30 Article 1 of Nationality Law 15/1959 creates a category of "original Kuwaiti nationals" who are, by nature of that status, eligible for a higher level of rights and protections in Kuwaiti law.
31 In April 1986 the government restricted Bidun's eligibility for travel documents to long-term employees of the military and police, and to those traveling for officially-sponsored medical treatment. Issuance of travel documents to all others was contingent on their renouncing their right to return to Kuwait. In 2000, for the first time, the government issued a limited number of one-trip only travel documents for Bidun to go on pilgrimage to Saudi Arabia.
32 Although most of Kuwait's citizens left the country via Saudi Arabia during the war, Saudi Arabia rarely allowed Bidun entry and Iraqi authorities required them to surrender passports if they wished to cross to Saudi Arabia. Passports were not required to pass into Iraq, and since most Bidun lacked passports those fleeing the fighting tended to cross into Iraq.
33 U.N. Human Rights Committee General Comment 27, Freedom of Movement, Sixty-seventh Session, 1999, (hereafter, General Comment 27) para. 20.
34 General Comment 27, para. 9.
35 Jamal K. al-Reesh of the Ministry of Interior's Executive Committee on Illegal Residents, 1853rd Meeting of the United Nations Human Rights Committee, July 19, 2000.
36 The regulations governing implementation of this article allow for deportation "i. When the alien is convicted and sentenced on a criminal charge or on an offense against honor or integrity; ii. When the alien is sentenced in the course of five years to three penalties, one of which is a custodial penalty; iii. When the alien is sentenced to any four penalties in the course of five years; iv. When public interest, public order or morals warrant expulsion." Ministry of Interior Decision 640/1987, article 26.
37 Formation of a Division of the Court of General Jurisdiction to Review Administrative Cases Law 20/1981, article 1(5).
38 Under the program, which ran from October 1, 1999 to June 27, 2000, Bidun currently employed by the military who admitted to a foreign nationality would 1) continue to receive their pensions; 2) continue to receive subsidized housing; 3) continue to receive subsidies for children in private schools. Civilians would receive five year residency permits and would not be required to have a Kuwaiti sponsor, and civilians and military personnel would 1) receive an amnesty from prosecution for violations of the Foreigners Residence Law (military and civilians); 2) be excused from the conditions in the Foreigners Residence Law for accompanying family members; 3) be allowed to continue in government or private jobs; 4) be allowed to continue to receive subsidized health care; and 5) pay only nominal residency permit fees. These benefits were phased out as the program progressed. Ministry of Interior chart. Arabic original in Human Rights Watch possession.
39 The term "regularize one's situation" (ta`dil awdhahi) is used by the Ministry of Interior in the case of the Bidun to refer to legalizing one's status in Kuwait by obtaining a foreign passport and registering as a foreign resident. "IDs [for those with] the 1965 Census [Registration], and We Possess Evidence of Their Affiliation: al-Subay`i to al-Watan: This is What is Required of the Bidun," Nasir al-Hussayni and Faris al-Shamari, al-Watan Newspaper, Kuwait City, Kuwait, July 24, 2000. (Arabic)
40 See, for example, "Meeting of the Leaders of Interior and Justice after the End of the Bidun Deadline: Immediate Transfer of Document Falsifiers to the Prosecution and One Month for Violators to Rectify Their Situation Before the Trial," Mohammad al-Sharhan and Husayn `Abdullah, al-Qabas Newspaper, Kuwait, June 29, 2000 (Arabic).
41 By July 12, 2000, of twenty cases the Ministry of Interior had referred for investigation, five had been ordered detained for twenty-one days for questioning, one had been released on KD100 bail because of his age, and fourteen had been issued warrants for their arrest. "Detention 21 Days for 5 [Bidun] Suspected of Forgery and the Investigations [Office] Searches for 14" `Abdullah al-Shamari, al-Watan Newspaper, Kuwait City, Kuwait, July 12, 2000 (Arabic).
42 Reported in "Punishment is Personal and the Son is Not Punished for His Father's Offense," Kuwait News Agency, al-Qabas Newspaper, Kuwait City, Kuwait, July 31, 2000. (Arabic)
43 In an interview on April 10, 2000 Shaykh Mohammad Yusif Al Sabah, Director General of the General Administration for Nationality and Travel Documents of the Ministry of Interior, noted that this was the first year for a long time that Bidun have been issued documents for pilgrimage, and Jamal K. al-Reesh of the Ministry of Interior's Executive Committee on Illegal Residents asserted that 2,500 such documents were issued in 2000. Human Rights Watch interview, Kuwait City, Kuwait, April 10, 2000; 1853rd and 1854th meeting of the United Nations Human Rights Committee, July 19, 2000.
44 Human Rights Watch interviews, Kuwait City, Kuwait, April 2000.
45 Shaykh Mohammad Yusif Al Sabah, Director General of the General Administration for Nationality and Travel Documents of the Ministry of Interior. Human Rights Watch interview, Kuwait City, Kuwait, April 10, 2000.
46 "3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant." ICCPR, article 12(3).
47 Name withheld by request. Human Rights Watch interview, Kuwait City, Kuwait, April 2000.
48 Brigadier Mohammad al-Subay`i, the director of the Ministry of Interior's Executive Committee on Illegal Residents, told Human Rights Watch that persons with complaints about Executive Committee actions have "no judicial appeal, but [do have] administrative appeal: [they] can complain to the Minister of Interior, or go to the parliament's Human Rights Committee, or the Complaint Committee in parliament, or the press." Human Rights Watch interview, Kuwait City, Kuwait, April 8, 2000.
49 Article 2 of Kuwait's Judiciary Service Code 23/1990 excludes "sovereign actions of state," officially interpreted to include matters related to nationality, from consideration by the courts, and article 1(5) of Formation of a Division of the Court of General Jurisdiction to Review Administrative Cases Law 20/1981 excludes administrative decisions on "matters relating to nationality, residency, and deportation of non-Kuwaitis" from that court's jurisdiction.
50 As non-citizens, Bidun can only make complaints to the parliament's Human Rights Committee, and not to the Complaints Committee. In a meeting with Human Rights Watch, M.P. Sami al-Manayyes, the chairperson of the National Assembly's Human Rights Committee, said that while the committee had received some complaints from Bidun who alleged that government agencies had overstepped their powers, the committee saw it's role as "humanitarian only," and limited to asking questions. In particular, he stated that the committee does not take a position on whether a person qualifies for nationality or naturalization. Human Rights Watch interview, Kuwait City, Kuwait, April 3, 2000.
51 Original Kuwaitis are not subject to denationalization under article 13 of the Nationality Law, or the 20 year waiting period prior to gaining the right to vote in Parliamentary elections specified in article 6.
52 Nationality Law 15/1959, article 1. The year 1920 was chosen because it was in that year that residents of Kuwait City erected a wall to defend themselves from attacks by nomadic militias.
53 Human Rights Watch interview with Shaykh Mohammad Yusif Al Sabah, Kuwait City, Kuwait, April 10, 2000.
54 Council of Ministers Legal Advice and Legislation Administration, Guide to Laws and Regulations Issued by the State of Kuwait: From 1954 to the End of 1997, (Kuwait City: State of Kuwait,1999), pp. 122-123. (Arabic)
55 The law allows the Minister of Interior discretion to shorten the waiting period, and in practice it varies according to the wife's nationality. In a press conference on July 26, 2000 Director of the Nationality and Passports Administration Shaykh Mohammad al-Yusif Al Sabah said that the waiting period for nationals from Gulf states was five years, and the period for women with Arab or "foreign" nationalities was ten years. "[Minister of Interior Shaykh Mohammad] al-Khaled [Al Sabah]: Seven Thousand Bidun Admit Falsifying their Data," `Abd al-Salam al-`Awadi and Kuwait News Agency, al-Qabas Newspaper, Kuwait City, Kuwait, July 27, 2000. (Arabic)
56 Ministry of Interior officials have said that Bidun applying for based on residence since 1965 must have been registered in Kuwait's 1965 census, a group which they say includes approximately 36,000 Bidun. However, interviews by Human Rights Watch suggest that many Bidun who were present in Kuwait in 1965 did not register in this census. It is not clear what documents will be required to prove their continued residence after 1965. Many Bidun will undoubtedly face difficulty compiling complete formal documentary evidence of their presence in Kuwait given government policies denying them legal status since 1985, the prevalence of individuals from nomadic and other social backgrounds with low literacy rates, and the destruction of personal property and government files during the 1990 Iraqi invasion.
57 Council of Ministers Legal Advice and Legislation Administration, Guide to Laws and Regulations Issued by the State of Kuwait, pp. 122-123.
58 Human Rights Watch interview, Kuwait City, Kuwait, April 9, 2000.
59 U.N. Human Rights Committee General Comment 19, Protection of the Family, the Right to Marriage and Equality of the Spouses, Thirty-ninth session, 1990, (hereafter, General Comment 19), para. 7.
60 Concluding Observations, para. 16.
61 Concluding Observations, para. 18.
62 General Comment 17, Rights of the Child, Thirty-fifth Session, 1989, para. 3.
63 Article 7 of the Convention on the Rights of the Child (CRC), ratified by Kuwait in 1991, provides for similar rights: "1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. 2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless." The United Nations Committee on the Rights of the Child, the CRC treaty-monitoring body, criticized Kuwait for legislation whereby "nationality may only be obtained by a child from his/her Kuwaiti father," and recommended amendments to ensure that "Kuwaiti nationality be determined in light of the provisions and principles of the Convention, especially articles 2 [non-discrimination], 3 [best interests of the child], and 7." Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations of the Committee on the Rights of the Child: Kuwait, United Nations the Committee on the Rights of the Child, Nineteenth Session, CRC/C/15/Add.96, October 26, 1998, (hereafter, Concluding Observations, Committee on the Rights of the Child), para. 20.
64 General Comment 17, para. 8.
65 General Comment 17, para. 8.
66 Although the government claims that the majority of the Bidun are originally Iraqi, Syrian, or Saudi Arabian, the Director of the Ministry of Interior's Executive Committee on Illegal Residents asserted that to his knowledge there had been no diplomatic effort to ask these other governments to grant their nationality to Bidun alleged to have come from those countries. Human Rights Watch interview, April 8, 2000.
67 General Comment 17, para. 7.
68 Jamal K. al-Reesh of the Ministry of Interior's Executive Committee on Illegal Residents stated that between January 2, 2000 and July 17, 2000 the government issued 1,794 birth certificates to Bidun. 1853rd Meeting of the United Nations Human Rights Committee, July 19, 2000
69 The Personal Status Law stipulates individuals must have official documents attesting to a marriage prior to bringing legal claims arising from the marriage. Personal Status Law 51/1984, article 92.
70 Reported in "No Health `No' to Bedoun," Kuwait Times, March 11, 1999, and "Bedouns Restricted," Arab Times, August 2, 1999.
71 The Ministry of Interior also began requiring Bidun who wished to obtain or renew a driver's license to present a renewed "security ID card" or proof of a Kuwaiti mother. "Driver's Licenses and Birth Certificates for Children of Kuwaiti Mothers Only," Nasir al-Husayni and Faris al-Shamari, al-Watan Newspaper, Kuwait City, Kuwait, July 23, 2000. (Arabic)
72 "Al-Subay`i to al-Watan: This is What is Required of the Bidun," Nasir al-Husayni and Faris al-Shamari, al-Watan Newspaper, Kuwait City, Kuwait, July 24, 2000. (Arabic)
73 The Committee on the Rights of the Child also cited concern over "laws, regulations or practices which are discriminatory for non-Kuwaitis and girls, especially with regard to education and inheritance," and recommended Kuwait "take all appropriate measures to safeguard the rights of Bedoon children, migrant children, other non-citizens, and girls, especially with regard to access to education, health and other social services." Concluding Observations, Committee on the Rights of the Child, para. 17.
74 In 1994 an exception has been made for minor children of Kuwait mothers. In April 2000 the Ministry of Health implemented a health insurance scheme that requires non-Kuwaiti citizens to pay an annual fee of 50KD per head of household, 40KD per dependant spouse, and 30 KD per child. After requests from the National Assembly's Health and Social Affairs Committee the Ministry agreed to reduced fees for Bidun holding security ID cards, non-Kuwaiti wives of Kuwait men, and foreign or Bidun children of Kuwaiti women, who each pay 20KD. "The [Ministry] of Health Asks for a Reduction in the Price of the Health ID to Five or Ten Dinar Per Year," al-Watan, Kuwait City, Kuwait, April 25, 2000, (Arabic); "Kuwait Defends Health Insurance Fees," Gulf News, June 16, 2000.
75 According to Jamal K. al-Reesh of the Ministry of Interior's Executive Committee on Illegal Residents, in 1999 the government subsidized the educational costs of 20,860 children of Bidun employed by the government. 1853rd Meeting of the United Nations Human Rights Committee, July 19, 2000.
76 The Committee on the Rights of the Child also expressed concern over "the recent increase in the number of children living and/or working on the streets of the State party, especially among the Bidoon community," and called on Kuwait to "provide access to school to all children and prevent and combat school drop-out." Concluding Observations, Committee on the Rights of the Child, para. 25.
77 "Re-registration of Bidun in Private Schools," al-Anba' Newspaper, Kuwait City, Kuwait, August 27, 1999. (Arabic)
78 Concluding Observations, para. 17.
79 Name withheld by request. Human Rights Watch interview, Kuwait City, Kuwait, April 2000.
80 General Comment 19, para. 5.
81 Personal Status Law 51/1984, article 92.