(Beirut) – A new law requiring all Kuwaiti citizens and residents to provide DNA samples to the authorities violates the right to personal privacy and should be promptly amended. On July 1, 2015, Kuwait’s National Assembly introduced the requirement as part of a new counterterrorism law. Kuwait is the only country to require nationwide compulsory DNA testing.

Many measures could potentially be useful in protecting against terrorist attacks. I suppose videotaping every user of a public toilet could be useful too, but that kind of intrusion is hardly necessary or proportionate, and neither is compulsory DNA testing.

Sarah Leah Whitson

Middle East director

The speedy approval of the new counterterror law and its earmarked US$400 million in “emergency funding” is a response by the Kuwaiti National Assembly to the June 2015 suicide bombing of the Imam Sadiq Mosque, which killed 27 people and wounded 227.

“Many measures could potentially be useful in protecting against terrorist attacks, but potential usefulness is not enough to justify a massive infringement on human rights,” said Sarah Leah Whitson, Middle East director. “I suppose videotaping every user of a public toilet could be useful too, but that kind of intrusion is hardly necessary or proportionate, and neither is compulsory DNA testing.”

The mandatory DNA collection law will require all Kuwaiti citizens, foreign residents, and temporary visitors to submit DNA samples to a database that will be maintained and operated by the Interior Ministry. The law, which will affect all 1.3 million Kuwaiti citizens and 2.9 million foreign residents, imposes a penalty of one year in prison and up to $33,000 in fines for anyone who refuses to provide DNA samples. Under the law, anyone found providing fake DNA samples can face up to seven years in prison.

“We have approved the DNA testing law and approved the additional funding,” National Assembly Member Jamal al-Omar said. “We are prepared to approve anything needed to boost security measures in the country.” 

DNA collection databases are not inherently illegal and have been justified at times as permissible investigative tools. But to meet international privacy standards enshrined in the International Covenant on Civil and Political Rights, which Kuwait has ratified, a DNA collection and retention mechanism must be extensively regulated, narrow in scope, and proportionate to meeting a legitimate security goal.

DNA gathering systems like the one Kuwait has written into law have been outlawed on the grounds of privacy rights under various legal regimes. For example, in 2008 the Grand Chamber of the European Court of Human Rights (ECHR) outlawed the collection and indefinite retention of fingerprints, cell samples, and DNA profiles. The European Court, in reaching its conclusion, reasoned that sweeping, indiscriminate DNA databases violated the right to personal privacy. It added that DNA collection may be appropriate in relation to state security and crime prevention, but only if the collection system is heavily regulated by established law and open to the careful scrutiny of a judiciary.

Domestic courts in the United States have come to similar conclusions, even though the US maintains the world’s largest DNA collection database. In the recent US Supreme Court case Maryland v. King, the court ruled that the collection and retention of DNA profiles for people convicted of violent crimes was legal but only under extremely narrow guidelines. The court determined that DNA collection databases could only be regarded as reasonable intrusions into a person’s inherent universal right to privacy if such databases were strictly regulated and maintained.

To serve the interests of Kuwaiti national security and comply with Kuwait’s obligations under international human rights law, the bill should be amended and narrowed extensively.

Media reports say that the law follows dozens of arrests linked to the bombing and the abolition of travel rights for the minority stateless population, known as the Bidun. The reports also say that the government is considering other “anti-terror” laws and that Kuwaiti authorities are seeking the death penalty for 11suspects in the bombing.

Human Rights Watch opposes the death penalty in all circumstances as an inherently irreversible, inhumane punishment. A majority of countries in the world have abolished the practice. On December 18, 2007, the United Nations General Assembly passed a resolution by a wide margin calling for a worldwide moratorium on executions.

“It’s not even clear whether DNA testing would be especially useful, given the many other types of information on suspects already in police databases,” Whitson said. “And what guarantee could the government give that this sensitive data would never be breached by third parties?”