Situation of human rights in Iraq -
A/50/734
8 November 1995
/... A/50/734
English
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A/50/734
English
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AUNITED
NATIONS
General Assembly
Distr.
GENERAL
A/50/734
8 November 1995
ORIGINAL: ENGLISH
Fiftieth session
Agenda item 112 (c)
HUMAN RIGHTS QUESTIONS: HUMAN RIGHTS SITUATIONS AND
REPORTS OF SPECIAL RAPPORTEURS AND REPRESENTATIVES
Situation of human rights in Iraq
Note by the Secretary-General
The Secretary-General has the honour the transmit to the members of the
General Assembly the attached interim report prepared by Mr. Max van der
Stoel, Special Rapporteur of the Commission on Human Rights on the
situation of human rights in Iraq, in accordance with paragraph 14 of
Commission on Human Rights resolution 1995/76 of 8 March 1995 and Economic
and Social Council decision 1995/286 of 25 July 1995.
95-34423 (E) 221195/...
*9534423*
ANNEX
Interim report on the situation of human rights in Iraq,
prepared by Mr. Max van der Stoel, Special Rapporteur of
the Commission on Human Rights, in accordance with
Commission resolution 1995/76 and Economic and Social
Council decision 1995/286
CONTENTS
Paragraphs Page
I. INTRODUCTION ..........................................1 - 93
II. REVOLUTION COMMAND COUNCIL DECREES NOS. 61 AND 64 .....10 - 174
III. THE MISSION TO KUWAIT .................................18 - 346
A. The fate of persons missing as a result of the
Iraqi occupation of Kuwait ........................18 - 286
B. Information regarding other violations of
human rights ......................................29 - 349
IV. THE MISSION TO LEBANON ................................35 - 4010
V. THE RIGHTS TO FOOD AND HEALTH .........................41 - 5112
VI. THE REFERENDUM OF 15 OCTOBER 1995 .....................52 - 5816
VII. CONCLUSIONS ...........................................59 - 6318
VIII. RECOMMENDATIONS .......................................64 - 6819
I. INTRODUCTION
1. In accordance with paragraph 15 of Commission on Human Rights
resolution 1995/76 of 8 March 1995, as approved by Economic and Social
Council decision 1995/286 of 25 July 1995, the present report constitutes
the interim report of the Special Rapporteur on the situation of human
rights in Iraq. The final report will be submitted to the Commission on
Human Rights at its fifty-second session.
2. In carrying out his mandate, the Special Rapporteur has again examined
a wide range of information pertaining to general and specific allegations
submitted through testimony and in documentary form, including script,
photographs and video recordings. However, direct access to locations
within Iraq has again not been possible owing to the Government's refusal
so far to cooperate with the United Nations in receiving a return visit of
the Special Rapporteur to Iraq or to accept the stationing of human rights
monitors throughout Iraq pursuant to resolutions of the General Assembly
and the Commission on Human Rights.
3. In implementation of paragraph 12 of Commission on Human Rights
resolution 1995/76 regarding the sending of human rights monitors "to such
locations as would facilitate improved information flows and assessment and
would help in the independent verification of reports on the situation of
human rights in Iraq", and taking into account the Government of Iraq's
refusal to cooperate in the placement of human rights monitors inside Iraq,
the Special Rapporteur requested the sending of staff members of the Centre
for Human Rights to Kuwait and Lebanon. These locations were chosen
because of the possibility of obtaining relevant information from persons
there who claim to be victims of, or eyewitnesses to, human rights
violations committed by the Government of Iraq.
4. The first mission referred to above took place from 22 to 30 June 1995,
when two staff members from the Centre for Human Rights travelled to Kuwait
in order to follow up on the Special Rapporteur's continuing concern for
Kuwaiti and third-country nationals who disappeared in the custody of Iraqi
authorities during the illegal occupation of Kuwait in 1990 and 1991 (see,
in particular, A/49/651, paras. 12-33 and 99) and, at the same time, in
order to meet with Iraqi citizens who had recently fled from Iraq to
Kuwait. During the visit to Kuwait, the staff members met with a wide
range of persons and received testimony, together with supplementary
information in documentary and photographic form. Section III of the
present report describes the results of the mission based on information
received prior to and during the visit to Kuwait.
5. The second fact-finding mission took place from 24 to 30 July 1995,
when two staff members from the Centre for Human Rights travelled to
Lebanon in order to interview Iraqi citizens who had recently arrived in
that country. Three days were spent in the town of Chtaura towards the
Lebanese border with the Syrian Arab Republic in order to meet with
recently arrived Iraqi citizens living in the Syrian Arab Republic.
Section IV of the present report describes the results of the mission based
upon information received prior to and during the visit to Lebanon.
6. On 4 September 1995, the Special Rapporteur submitted his first
periodic report to the Commission on Human Rights pursuant to Commission
resolution 1995/76 (E/CN.4/1996/12), in which he studied the texts of two
recent decrees of the Revolution Command Council that were reported to
grant amnesty to specified categories of persons. A summary of the report,
highlighting the Special Rapporteur's analysis and comments with regard to
the importance of the decrees and their impact is reproduced in section II
of the present report.
7. Among the most visible and disturbing policies of the Government of
Iraq, affecting virtually the entire population, are those that concern the
rights to food and health. In section V of the present report, the Special
Rapporteur addresses the deteriorating situation regarding these most vital
of economic rights and offers his conclusions as to the responsibilities of
the Government of Iraq.
8. In section VI of the present report, the Special Rapporteur reports
upon the referendum held in Iraq on 15 October 1995. In his analysis, he
applies the international human rights standards to which Iraq has
voluntarily ascribed in the area of civil and political rights.
9. Aside from the matters addressed below, it is again to be observed that
there are no signs of improvement in the general situation of human rights
in Iraq. The details of this overall assessment of the situation of human
rights in Iraq, taking into account ongoing developments, will be given in
the Special Rapporteur's report to the Commission on Human Rights at its
fifty-second session.
II. REVOLUTION COMMAND COUNCIL DECREES NOS. 61 AND 64
10. On 28 July 1995, the Government of Iraq transmitted, through a note
verbale from its Permanent Mission in Geneva addressed to relevant special
rapporteurs and working groups of the Commission on Human Rights, the text
of Revolution Command Council decree No. 61 dated 22 July 1995, which
"remits the remainder of the sentences of Iraqi prisoners and detainees,
commutes death sentences to life imprisonment and pardons persons liable to
the penalty of amputation of the hand or the auricle of the ear". By a
second note, dated 2 August 1995 from the Permanent Mission of the Republic
of Iraq to the United Nations Office at Geneva addressed to the Centre for
Human Rights, the Government of Iraq transmitted the text of Revolution
Command Council decree No. 64 (bearing the signature of Saddam Hussein as
Chairman of the Council and entering into force on 30 July 1995), which was
said to grant "a general amnesty to Iraqis living in or outside Iraq in
respect of the penalties imposed on them following their conviction for
political reasons". The full texts of decrees Nos. 61 and 64 are
reproduced in the annex to the Special Rapporteur's first periodic report
(E/CN.4/1996/12).
11. The decrees introduce considerable opportunity for arbitrariness and
abuse at the hands of undoubtedly biased persons. For example, paragraph
II of decree No. 61 stipulates that reductions of sentences will apply only
in such cases where the relatives of those imprisoned "undertake to ensure
their good conduct" and "provided that the said undertaking is endorsed by
a member of the Arab Baath Socialist Party". Similarly, paragraph VI gives
an advantage to those who have "obtained an understanding of the
revolutionary course of action" while paragraph VIII, subparagraph 3,
effectively conditions exemption from applicable amputation decrees upon
repentance. For example, in terms of the independent and impartial
administration of the criminal justice system normally required, one may
wonder on what basis members of the Arab Baath Socialist Party are to play
a determinative role.
12. If careful consideration is given to the many conditions and
exclusions contained in the decrees, it will be seen that large numbers of
persons apparently addressed by the decrees would not in fact enjoy any
benefit. For example, the decrees apply only to persons "convicted" or
"sentenced", presumably in a formal juridical sense, subsequent to court
proceedings and orders. Yet large numbers of persons remain detained in
Iraq, and are subject to punishment, in the absence of formal or proper
convictions or sentences. These persons would not enjoy the benefit of the
decrees.
13. Another limiting aspect of decree No. 64 is that it expressly applies
only to "citizens" and "Iraqis" rather than anyone having been found guilty
of commission of the offences irrespective of nationality. The application
of paragraphs II and III of the decree are thus discriminatory in so far as
they exclude non-nationals, whilst the Government has previously stripped
hundreds of thousands of persons of their "Iraqi" nationality by asserting
their "Persian ancestry".
14. Regarding the explicit exclusions to be found in the decrees, persons
convicted of "espionage" are excluded from application of the decrees.
This is a particularly important exclusion in the case of Iraq because so
many laws refer to "espionage" and because the crime applies to a wide
variety of behaviour.
15. Finally, there are evident shortcomings within decree No. 61 as
regards the continuing effects of decrees prescribing amputations and
branding. Specifically, paragraph III of decree No. 61 exempts from the
penalty of amputation only those persons who have served two years in
custody or detention; presumably, those having served less than two years
will be subject to amputation, which normally is applicable upon
conviction. In addition, since paragraph VIII.3 effectively exempts from
amputation of the auricle of the ear only persons who have given themselves
up "repentantly", presumably those who refuse to make such a declaration
will still suffer the inhuman and degrading punishment.
16. The most important context for analysing the recent amnesty decrees is
that of the overall legal and political order prevailing in Iraq. It is
precisely the existence of several repressive Iraqi laws that quells
freedom of thought, information, expression, association and assembly
through fear of arrest, imprisonment and other sanctions. This repression
will not be affected by the latest amnesty decrees. So long as powers of
arbitrary arrest, detention and imprisonment exist, "amnesties" will
inspire little confidence. This is especially so for "political" offences,
while decrees such as No. 840 of 4 November 1986 continue to make critics
and insulters of the President, the Baath Party and the institutions of
government subject to the death penalty and Baath Party members are granted
impunity for any harm done to property or persons (including death) while
pursuing opponents of the Government. Simply, while there is no effective
rule of law in Iraq, there will be little confidence in the reliability of
"amnesty" decrees.
17. It is for this reason that the Special Rapporteur has previously
called for the abrogation of such repressive laws as those establishing the
offence of "insulting" the leadership and institutions of government and
the Baath Party, the granting of impunity for those causing harm to the
person of property of "subversives", "saboteurs" and other perceived
opponents of the Government or the Baath Party and the inhuman punishments
of amputation and disfigurement examined by the Special Rapporteur in
previous reports (see in particular, E/CN.4/1995/56).
III. THE MISSION TO KUWAIT
A. The fate of persons missing as a result of
the Iraqi occupation of Kuwait
18. As noted in paragraph 4 above, two staff members from the Centre for
Human Rights, acting as human rights monitors in the framework of
Commission resolution 1995/76, undertook a visit to Kuwait from 22 to 30
June 1995. During their stay in Kuwait, the monitors met with a wide
variety of persons of special relevance to the continuing problem of
Kuwaiti and third-country nationals who disappeared during or subsequent to
their alleged arrest and detention by Iraqi forces occupying Kuwait between
2 August 1990 and 26 February 1991. Among those interviewed were
representatives of the Kuwaiti National Committee for Missing and Prisoner
of War Affairs and family members of the Kuwaitis who had disappeared.
19. The fate of Kuwaitis and other persons who disappeared during Iraq's
occupation of Kuwait forms part of the mandate of the Special Rapporteur as
a result of paragraph 4 of Commission resolutions 1992/71 and 1993/74,
paragraph 5 of Commission resolution 1994/74 and paragraph 3 of Commission
resolution 1995/76. The Special Rapporteur briefly addressed this aspect
of the mandate in two reports to the Commission (E/CN.4/1993/45, para. 49,
and E/CN.4/1994/58, para. 32) and more extensively in his last report to
the General Assembly (A/49/651, paras. 12-33 and 99).
20. As previously stated by the Special Rapporteur (see A/49/651, paras.
31 and 32), there can be no doubt that many persons disappeared during or
subsequent to the Iraqi occupation of Kuwait. In so far as the
disappearances occurred during the Iraqi occupation of Kuwait, there can
also be no doubt of the general responsibility of Iraq under international
law for the fate of these persons and the effects on their families.
Detailed testimonies and other corroborative evidence further establishes
the specific responsibility of Iraqi forces and authorities in relation to
many individual cases. However, from the point of view of the relations of
those who disappeared, the preoccupying question is the present whereabouts
of their loved ones: are these persons still detained in Iraq, as has been
claimed, or, in the event that they have been released or have perished,
what details can be communicated to the distraught families regarding the
release or death of former detainees?
21. Certainly, the human tragedy of this continuing matter is enormous
both in terms of any remaining detainees who are no doubt suffering untold
emotional anguish and possibly enduring physical hardship and in terms of
the relatives of the missing persons who are suffering severe mental
distress because they are without knowledge of the whereabouts and
condition of their loved ones. The relatives of the missing persons also
report that they are regularly subjected to extortion attempts that play
upon their desires to learn anything of those missing. As a result of the
never-ending uncertainty and the unresolvable pain and depression, the
social lives, employment performance and personal relationships of family
members are all damaged.
22. In accordance with the applicable rules of international law, Iraq
must account for those who were arrested by its forces. If Iraq were still
to be holding prisoners of war (POWs) and civilian internees, a premise the
Iraqi authorities deny, several obligations arising under international
humanitarian law and international human rights law would be breached.
23. In addition, the Government of Iraq has, to the knowledge of the
Special Rapporteur, failed to demonstrate a genuine concern for those who
are still missing in so far as it has yet to participate fully and in a
cooperative spirit with both Governments and international humanitarian
organizations that are seeking to resolve the cases on behalf of the next
of kin. In particular, the Government of Iraq failed for a period of two
years even to attend the meetings of the Tripartite Committee established
pursuant to the cease-fire agreement that ended the armed conflict
following the liberation of Kuwait.
24. However, as from July 1994, the Government of Iraq renewed its
participation in the framework of the Tripartite Committee, as well as in
the framework of a Technical Subcommittee that was established by the
Tripartite Committee on 8 December 1994, and has undertaken to conduct the
detailed technical work relating to investigations and inquiries concerning
the missing persons. As of 7 April 1995, the Technical Subcommittee had
processed 168 dossiers, on which the Government of Iraq had provided
preliminary replies based on intermediate investigations regarding 70
individual files. In addition, the mortal remains of one missing person
were repatriated to the Kuwaiti authorities.
25. For almost all cases to which the Government of Iraq has so far
responded, it is reported to have provided evasive replies regarding the
individual files. Indeed, based upon information received during the
mission, despite the Iraqi authorities admitting to having arrested and
detained some of the missing Kuwaitis, the Government of Iraq claims to be
ignorant of the specifically relevant authority or military unit operating
at the time and place where the person disappeared; the Government claims
that the files that could have been useful to determine the fate of the
missing persons were destroyed during the retreat of the Iraqi authorities
from Kuwait and that many of these units were subsequently dissolved, with
many of their members having retired from the armed forces. Therefore, the
Government of Iraq maintains, upon information collected verbally by the
responsible officers after the 1991 uprising in the south of Iraq, that the
detainees escaped by exploiting the confusion that prevailed in the
southern governorates at the time.
26. Based upon information received by the Special Rapporteur, the
specific military units responsible in the areas where the arrests and
disappearances occurred have now resorted to pro forma responses, admitting
only to having arrested and detained some of the still missing Kuwaitis.
Some have also participated in initial investigations into some of the
cases.
27. Noting that the Government of Iraq is showing to a certain extent its
willingness at long last to collaborate with the Tripartite Committee, the
Special Rapporteur stresses that Iraq is under an obligation to provide
substantive replies on the individual files without further delay. It is
to be recalled in this connection that, in its resolution 46/135 of 17
December 1991, the General Assembly called upon Iraq in the following
specific terms to cooperate in the search for those who had disappeared:
"4. ... to provide information on all Kuwaiti persons and thirdcountry
nationals deported from Kuwait between 2 August 1990 and 26 February 1991
who may still be detained and ... to release these persons without delay;
"5. ... to provide ... detailed information on persons arrested in
Kuwait between 2 August 1990 and 26 February 1991 who may have died during
or after that period while in detention, as well as on the site of their
graves;
"6. ... to search for the persons still missing and to cooperate with
international humanitarian organizations, such as the International
Committee of the Red Cross, in this regard;
"7. ... to cooperate and facilitate the work of international
humanitarian organizations, notably the International Committee of the Red
Cross, in their search for and eventual repatriation of Kuwaiti and
thirdcountry national detainees and missing persons."
28. Notwithstanding Iraq's recent but limited steps towards full
cooperation in this tragic matter, the Special Rapporteur cannot avoid
noting that Iraq failed:
(a) To inform families about the whereabouts of persons arrested in
Kuwait, or to give arrested persons the right to contact their families;
(b) To provide information about death sentences imposed on POWs and
civilian detainees, as required by articles 101 and 107 of the Third Geneva
Convention of 12 August 1949 and articles 74 and 75 of the Fourth Geneva
Convention of 12 August 1949;
(c) To issue death certificates for deceased POWs and civilian internees
and to provide information about graves in accordance with articles 120 and
121 of the Third Geneva Convention of 12 August 1949 and articles 129 to
131 of the Fourth Geneva Convention of 12 August 1949;
To comply at least with this, the Government of Iraq faces a heavy burden
of doing everything within its powers to explain the fate of the hundreds
of persons who still remain missing as a result of its illegal occupation
of Kuwait.
B. Information regarding other violations of human rights
29. Other information (mainly testimonies from asylum-seekers) received in
Kuwait by the monitors assisting the Special Rapporteur paints an even
grimmer picture of life in southern Iraq. Testimonies focused upon the
climate of oppression and the dire economic and social situation in the
south of the country. The second of these issues will be taken up in
section V below.
30. According to testimonies received, penal amputations continued to be
enforced in southern Iraq in the spring and early summer of 1995. Military
deserters who had escaped to Kuwait stated that they saw many soldiers with
their ears cut off. Two young men who were interviewed had suffered the
penalties themselves: one had both his ears entirely amputated in a rough
fashion and had a "-" sign scar in the middle of his forehead, which he
stated was the result of a surgical cut applied at the time of the
amputation of his ears, while the other young man had a large and dark "_"
sign branded between his eyebrows and had large inflamed scars running up
and down his arms and on his body from battery acid that had been poured on
him by military officers as an alternative to cutting off his ears; the
officers had also fractured the skull of the second soldier with a metal
pipe, resulting in a speech impediment and recurring dizzy spells. The
deserter who had had both his ears amputated testified that he had been
given a general anaesthetic in a prison hospital where the operation was
performed and where he had remained without medicine for weeks afterward;
his bandages were changed only every two weeks. He further testified that
he was among several hundreds of others who had been brought from
throughout Amarah, Nassiriyah and Basrah governorates in order to have
their ears cut off in the prison hospital. While some were said also to
receive the surgical cut across the forehead as had the witness, others
were said to have been branded on the forehead with an "X". Many were said
to have acquired infections, received no treatment and died. Another
soldier who claimed to have had access to military detention centres as
part of his work testified to having seen at least 30 soldiers in various
places who had had their ears cut off, stating that they were bandaged and
bleeding, with some having acquired infections for which they were
prohibited treatment and for which, in any event, there were no medicines
available. These testimonies were supported by that of a medical doctor
who had fled from Basrah, where he confirmed that many young men had been
brought to the hospitals to have their ears cut off: one ear for the first
desertion, both ears for a second offence, and branding of the foreheads
for all. While anaesthetics were used for the operations, which were
described as an irregular cut followed by a suture, post-operative
treatment was forbidden; one victim was said to have died of septicemia.
For the brandings, the technique employed was a cauterized "-" sign across
the forehead. The doctor stated that he had heard from other doctors that
a total of 150 amputations were performed in January 1995. The doctor also
confirmed that they were forced to perform the operations or receive heavy
penalties for refusal: one doctor who refused was arrested by the
Mukhabarat for two days and returned compliant, while another disappeared.
31. The testimonies concerning amputations confirm what the Special
Rapporteur had reported in his last report to the General Assembly
(A/49/651, paras. 44-71 and 99 (j)). They also demonstrate the arbitrary
and irregular fashion in which the barbaric decrees have been implemented.
32. Other testimonies indicated that arbitrary arrests and detentions
remained widespread in southern Iraq. Several witnesses testified that,
upon arrest, they had been beaten and badly mistreated. All witnesses
testified that they had fled because of the constant fear in which they
lived and that the economic deterioration had increased the arbitrary
interference of security and Baath Party officials in the daily lives of
the citizenry. Bribery and corruption were also said to be rife. There
was said to be no rule of law.
33. The witnesses were unanimous that the food and health situation, and
the socio-economic situation in general, had become precarious. Most
stated that they were preoccupied in their daily lives with achieving a
subsistence-level existence. The medical doctor who was interviewed
confirmed that protein and calorie deficiencies were common among children,
as were cases of anaemia and related diseases. The doctor lamented the
unavailability of many medicines and the emergence of a flourishing, but
very expensive, black market for drugs. Although the doctor had seen no
deaths as a result of malnutrition, he stressed that the situation was
deteriorating day by day prior to his departure in the spring.
34. In general terms, one witness described Iraq as "one huge prison"
where all within huddled in fear. Another witness pleaded that the United
Nations should ignore the Government of Iraq and "take food and medicine
directly to the people". All felt that Iraqi society was shattered.
IV. THE MISSION TO LEBANON
35. The testimonies received in Lebanon were mainly from refugees who had
recently fled from the central part of Iraq. All gave testimony about a
general state of repression and fear throughout Iraq and all indicated that
the overall socio-economic situation was poor, with dire consequences for
the most vulnerable in terms of access to food and health care.
36. In general, life was said to be harsh and expensive. Government
ration cards were said to be good for only 10 days in early 1995. Two
witnesses claimed to have seen food aid from the United Nations being sold
on the black market; one witness testified to having seen United Nations
Children's Fund (UNICEF) and World Food Programme (WFP) trucks in Najaf and
Karbala offloading at government distribution points only to see some of
the food appear on the black market later. Expired goods (including milk
and medications) were also said to be distributed through the Government of
Iraq with the Government accusing the United Nations of dumping the goods
on a desperate people.
37. Two witnesses testified to having seen army deserters who had had an
ear cut off and had been branded on the forehead. The desertions were
blamed on the extremely low pay for conscripted soldiers, which had forced
many to desert in order to help their families to survive. Now many have
been disfigured, while others are said to have died as a result of the
initial traumas or subsequent untreated infections. Those who survive are
said to hide in shame. One witness said that some victims and their
families had sought revenge for the disfigurements by trying to kill the
doctors and Baath Party officials who had performed or ordered the
amputations; several such incidents were said to have taken place in
Nassiriyah.
38. Many witnesses testified about the general breakdown in law and order:
bribery, corruption and thievery were said to be the main problems.
Matters of corruption ranged from petty to issues of life and death. One
witness stated that "even if you kill someone, you can still buy your
freedom by paying the judge". Another witness testified that higher
education had become completely corrupt with professors, who were very
poor, readily accepting bribes to change grades, to give out the questions
to examinations in advance or just to grant a passing grade to a student
who had already answered all the questions correctly. Admissions are said
to be controlled by the Baath Party and the children of important Baathists
are said to get privileged entrances and advancements throughout the
system: easier admissions, easier passes and better grades. Another
witness stated that the problem of bribery had reached such a stage that
those who were to be executed could buy their freedom from the executioner,
but then someone else had to be executed in their stead to ensure that a
body was surrendered by the executioner as per instructions. The general
decay in order, parallelled by an increase in corruption, has resulted in a
confused and thoroughly arbitrary system where it is said to be a regular
occurrence that the wrong people are arrested, detained, tortured and even
executed - without apology or consequence.
39. Arbitrary arrests were said still to be common throughout the country,
with people still being taken directly from their homes. The Mukhabarat is
said to be still preoccupied with trying to find everyone who participated
in the March-April 1991 uprisings.
40. Upon arrest, cruel tortures and gross mistreatment still occur. Two
witnesses gave testimony, corroborated by their own scars and disabilities,
about terrible tortures that they suffered over long periods of time. One
witness testified that, during three and one half years of arbitrary
detention (first in the General Directorate of Security in Baghdad and then
in Radwaniyah prison) prior to his release in the spring of last year, he
was regularly hanged from his hands, which were bound behind his back, with
someone pulling down on his body so that his rotator cups were destroyed
and he can now rotate his arms backwards over his head but he can carry
hardly any weight. In addition, he was badly beaten on his back, causing
some of his vertebrae to become displaced and resulting in a serious
curvature of the spine: he is now deeply bowed when he stands. Further,
he was forced on several occasions to sit on a bottle for minutes at a time
causing bleeding and rectal damage that required medical treatment and, on
one occasion, he suffered electric shocks to his tongue and genitals. The
second witness claimed to have been imprisoned and brutally tortured over a
12-year period in the Mukhabarat office in Baghdad, Fadhliyah detention
centre and Badush prison in Mosul. Among the astounding number and variety
of tortures he claims to have suffered are the following: he was hanged by
his feet from a rotating fan and beaten with cables by Mukhabarat officers;
he was forced to sit on bottles of varying sizes for various periods of
time; he was once made to stand in a large tub of filthy waste water up to
his nose so he could hardly breath; he was once sprinkled with sulphuric
acid from a syringe during an interrogation; during another interrogation,
he had a heavy acidic oil poured on one arm; he was administered electric
shocks on different occasions, once while sitting in a chair with his feet
in a shallow bucket of water, causing his feet to inflame and making it
difficult to walk; he once had a small leather strap tied around his penis
to prevent him from urinating while, at the same time, he was forced to
drink large quantities of sugared water; he was several times forced to
crouch for long periods in a tiny box; and he was raped numerous times.
Having been sentenced to life imprisonment for espionage and membership in
the Islamic movement, the witness claims to have been liberated during an
uprising by the al-Jabouri clan in Mosul in 1994 and subsequently fled the
country. The witness bears numerous scars and suffers disabilities that
are consistent with his testimony.
V. THE RIGHTS TO FOOD AND HEALTH
41. The Special Rapporteur has commented upon the rights to food and
health in all but one of his previous reports to the Commission on Human
Rights and to the General Assembly (A/46/647, annex, paras. 52-55 and 95-
98; E/CN.4/1992/31, paras. 81-83, 138, 143 (w), 145 (o) and (p) and 158;
A/47/367, para. 14; A/47/367/Add.1, paras. 6-14, 56 (a)-(c) and 58 (a)-(c);
E/CN.4/1993/45, paras. 67-72 and 185; A/48/600, annex, paras. 33-42, 44-46,
58-59 and 62-88; E/CN.4/1994/58, paras. 72-79, 152 and 186; A/49/651,
annex, paras. 89-98; and E/CN.4/1995/56, paras. 44-47, 54, 67 (m) and 68
(c)). Since his initial appointment in June 1991, the Special Rapporteur
has observed the constantly deteriorating situation of the population.
This dire situation has met with the steadfast refusal of the Government of
Iraq to take advantage of resources available to alleviate the suffering of
the people - as the Government is obliged to do under international law.
As such, there can be no doubt that the policy of the Government of Iraq is
directly responsible for the physical and mental pain, including long-term
disabilities, of millions of people and the death of many thousands more.
42. Since the Special Rapporteur's last report to the Commission on Human
Rights (E/CN.4/1995/56), the Security Council adopted resolution 986 (1995)
of 14 April 1995, which affords Iraq the opportunity of selling oil up to
the amount of US$ 1 billion every 90 days, on a renewable basis, in order
to purchase essential food and medical supplies for humanitarian purposes.
As was the case with the "food-for-oil" formula presented pursuant to
Security Council resolutions 706 (1991) and 712 (1991), the Government of
Iraq has rejected the offer made in resolution 986 (1995), despite the fact
that the total available annual sale would be US$ 4 billion, i.e. about one
quarter of Iraq's total export sales prior to its invasion of Kuwait and
the imposition of United Nations economic sanctions. The United Nations
offer received unfavourable responses from the Government from its
inception and was turned down completely by both the Iraqi Cabinet of
Ministers and the National Assembly. It is interesting to note that,
immediately after Security Council resolution 986 (1995) was adopted,
market prices of essential food and other commodities improved
significantly and the free market value of the United States dollar dropped
by 50 per cent against the Iraqi dinar from ID 1,200 to ID 600. Such a
sustained drop in prices would have had the effect of making more food and
other essential commodities available to those in need. However, the drop
in prices and exchange rates was short lived following the negative
response from the Government and the appearance of several Ministers and
other top officials on television who categorically decried and rejected
resolution 986 (1995) on unspecified grounds of "sovereignty infringement
and interference in the internal affairs of Iraq". Senior officials also
argued that the new initiative was designed to prolong the sanctions - an
assertion that flies in the face of the fact that it is for Iraq alone to
comply fully with the terms of the relevant Security Council resolutions
and end the sanctions regime forthwith.
43. As a consequence of the Government of Iraq's intransigence on the
"foodfor-oil" formula, the economic situation continued to deteriorate and
prices of essential food items and basic living commodities fell even
further beyond the reach of a large part of the population. According to
the Department of Humanitarian Affairs mid-term review of the United
Nations consolidated inter-agency humanitarian cooperation programme for
Iraq, dated 21 September 1995, in the last six months "the humanitarian
situation deteriorated in all sectors, particularly in the areas of
nutrition and health. Living conditions remain precarious for at least an
estimated 4 million persons". Essential food prices have continued to
escalate drastically, especially after the release of the last reports of
the United Nations Special Commission monitoring the dismantling of Iraq's
nuclear, chemical and biological capacities; prices of wheat flour, rice,
vegetable oil and sugar increased between 30 and 50 per cent on the free
market. For example, the price of vegetable oil jumped from ID 800 to ID
1,200 per kilogram, the increase accounting alone for 15 per cent of the
monthly salary of an average government employee. These large increases in
the prices of food commodities must also be viewed in relation to the
oppressive 616 per cent increase in the central and southern governorates
in 1994, as reported by the Department of Humanitarian Affairs (see DHA
News special edition, "1994 in review", p. 111). At the same time, the
Department of Humanitarian Affairs reported in the same mid-term review,
that the "purchasing power of the population has deteriorated further
because of the continued depreciation of the Iraqi dinar from 1,000 to the
dollar in April to 2,000 ID in September 1995" such that the "salaries of
civil servants (averaging ID 5,000 per month after 50-70 per cent
increments in August 1995) are inadequate for the purchase of basic food
commodities".
44. The Government has continued distribution of its subsidized food
basket at reduced levels for four essential food items, namely wheat flour,
rice, vegetable oil and sugar. In October 1994, the basket was reduced by
37 per cent in terms of calorie intake, with the shortfall of over 50 per
cent remaining unbridgeable for a large percentage of the population in
view of the prohibitive food prices on the free market. This situation
prevailed until just recently when, in celebration of his "endorsement" as
President in the national referendum held on 15 October 1995, President
Saddam Hussein was reported to have increased the rations. It is not clear
how long this celebratory increase will continue. Prior to it, government
rations met only 30 per cent of people's food needs with the Department of
Humanitarian Affairs reporting that "an FAO-led crop and nutrition status
assessment mission confirmed that the situation in Iraq was demonstrating
pre-famine conditions".
45. The economic hardship affecting the population is being manifested in
various ways. More and more families have been cramming roadways around
Baghdad and other cities to sell personal belongings, furniture and even
parts of their homes (e.g. doors, windows and cement blocks) in order to
buy food. Child beggars and small-time traders are now a common sight in
the capital and prostitution is said to be rising all over the country.
Media reports also point to a flourishing trade in human organs as the
desperate line up to sell a kidney in order to help their families to
survive.
46. Although the number of privileged groups and persons appears to be
declining, certain groups remain privileged by comparison to others, e.g.
highranking military officers and Baath Party elite. This privilege is to
be observed not only in the fact that the average salary of a civil servant
is one half that of a military officer, but more importantly in the fact
that members of the Baath Party and military officers enjoy their own food
distribution network through cooperatives and they receive special salary
allowances depending on their relationships with their supervisors and the
extent of their support for the official policies of the Government. Of
course, this is to say nothing of the bribes and "gifts" that government
and Baath Party officials may obtain by virtue of the important
administrative positions to which they may be assigned. Moreover, the
inner circle of the leadership does not appear touched by any economic
hardships affecting their access to food or health care.
47. It is also evident that there is discrimination within the country on
a regional basis. The central cities of Iraq, especially Tikrit, Samara
and parts of Baghdad, continue to enjoy preferred distribution of limited
resources; while the infrastructure (including water purification and
sewage systems) of Baghdad was rebuilt almost immediately after the war,
that of the southern cities has continued to lag far behind. For example,
according to a survey conducted by government agencies with the full
support of UNICEF in April 1995 and released in July 1995, 50 per cent of
the rural population in the central/southern part of Iraq have no access to
potable water supplies. More distressingly, the same survey found that 90
per cent of the rural population in the southern governorate of Thiqar had
no access to potable water supplies. An erratic electric power supply and
a shortage of water has had a negative impact on public health, with
adverse effects on vulnerable groups, especially children. One hospital in
Najaf was found without water for three consecutive days. In addition,
commodity prices in the southern governorates are much higher than in the
central governorates, owing to the deteriorating modes of transport and the
cost of distribution. In the northern governorate of Dohuk, which was cut
off from the national power grid in August 1993 and had been receiving 12
MW of power per day from Turkey over the past few months, there has been
almost no electricity since 23 June when, for technical reasons, the
Turkish source of power was also cut off. The resulting non-availability
of power during the summer months created enormous problems in the health
and water sectors. According to the DHA News special edition, "1994 in
review" (p. 112), severe shortages of electricity also "prompted
significant movement of people, placing greater strain on the humanitarian
programme" last year.
48. Among the related health problems are the increasing levels of
contaminated water as recorded by the ongoing UNICEF-sponsored water
quality control programme. As a result, the number of cases of waterborne
and diarrhoeal disease was seen to increase. Initial investigations by
UNICEF had indicated that water was not being chlorinated as required, and
subsequent follow-up revealed that UNICEF's chlorine powder had been put on
sale in the market for domestic use -available in well-designed, locally
printed packets and tins. This increase in corruption affecting the health
and well-being of the population derives from the continuing economic
pressures and the inability of the authorities to ensure proper use of
humanitarian assistance.
49. In the face of the continuing deterioration of the food and health
situation in Iraq in the last year, to say nothing of other forms of
repression, many Iraqis sought to travel abroad to obtain food, health care
or refuge. In response, the Government increased by 150 per cent the exit
tax on all Iraqis travelling abroad; the fee was increased from ID 40,000
to ID 100,000 (i.e. almost two years' pay for an average government
employee). In addition, skilled persons such as engineers, architects and
doctors are required to post a guarantee of return in the amount of ID 1
million in the form of cash in a bank account or fixed property. This
prohibitive exit tax forces many people to remain in Iraq to the detriment
of their health and well-being.
50. Beyond the Government of Iraq's refusal to cooperate with the United
Nations according to Security Council resolution 986 (1995), which proposes
an increased sale of "oil for food", beyond the Government's restrictions
on access to food and health in certain parts of the country and beyond the
severe restrictions on exit from the country, the Special Rapporteur has
received credible allegations that Iraqi forces have continued their
attacks on the farming communities (with destruction of their crops and
livestock) located along the internal frontier with the region of northern
Iraq, from which the Government withdrew its administration in 1991.
Similar allegations have been received concerning some attacks against
farmers in the south of the country, resulting in the destruction of wheat
and barley crops and livestock. These attacks negatively affect the
internal food resources available for the rest of the population.
51. According to the Department of Humanitarian Affair's mid-term review
and the assessment mission of the Food and Agriculture Organization of the
United Nations (FAO), both referred to above, Iraq's "overall food
requirements" in 1995/96 amount to "about US$ 2.7 billion". To keep alive
2.15 million of the most vulnerable people through 1996, a WFP News Update
of 26 September 1995 states that US$ 122.5 million is required. An earlier
United Nations consolidated inter-agency humanitarian cooperation programme
for Iraq appealed for a total of US$ 135 million for the current six-month
period (i.e. 1 October 1995-31 March 1996). The Special Rapporteur cannot
help but underscore that the stated amounts are far below the resources
available through Security Council resolution 986 (1995), even should the
Government of Iraq finally take advantage of the opportunity to sell some
oil for the good of the Iraqi people. Indeed, it is entirely within the
means of the Government of Iraq to respond immediately to the dire food and
health needs of the people of Iraq either through full compliance with the
Security Council resolutions establishing the sanctions or by cooperation
with the United Nations pursuant to resolution 986 (1995).
VI. THE REFERENDUM OF 15 OCTOBER 1995
52. On 15 October 1995, a national referendum was held in Iraq on the
question: "Are you in favour of Saddam Hussein assuming the post of
President of the Republic of Iraq?" In order to analyse and understand the
process and significance of the referendum in terms of applicable
international human rights standards, it is necessary to consider the
political context in which the referendum was held. In this connection,
the Special Rapporteur refers to his previous comments on the rights
pertaining to democratic governance in Iraq (E/CN.4/1994/58, paras. 80-86)
and to the structure and abuse of power in the country (E/CN.4/1994/58,
paras. 159-184).
53. The applicable international standards by which the 15 October 1995
referendum is to be assessed are those contained principally in article 21
of the Universal Declaration of Human Rights and article 25 of the
International Covenant on Civil and Political Rights, to which Iraq is a
party. Both article 21 of the Universal Declaration and article 25 of the
Covenant stress the free expression of the will of the people as the basis
for determining the legitimate representatives of the people. However, for
the will of the people to be freely formed and expressed, a variety of
other freedoms must be respected, in particular the freedoms of thought,
conscience, religion and belief (as guaranteed under article 18 of the
Covenant); opinion, expression and information (as guaranteed under article
19 of the Covenant); assembly (as guaranteed under article 21 of the
Covenant); and association (as guaranteed under article 22 of the
Covenant). One could easily also add other freedoms such as that of
movement and respect for personal integrity and privacy rights. In other
words, the possibility of non-manipulated and unimpaired formation of views
and also the uninfluenced expression of those views must be guaranteed.
54. As the Special Rapporteur has previously commented in detail (see
E/CN.4/1994/58, paras. 80-86 and 159-184), the conditions necessary to
ensure that the free will of the people is the basis of the authority of
government do not exist in the present legal and political order of Iraq.
More specifically, the almost total control of information coupled with an
all-pervasive and generalized fear among the population of severe sanctions
for non-support of the prevailing order, maintained through abuses of power
and facilitated by the absence of the rule of law in the country, combine
to undermine and distort apparent expressions of the "will of the people"
totally. While the Government purports that the referendum of 15 October
1995 was "free", the Special Rapporteur does not believe that the mere
mechanical conduct of the formal process of voting can be equated with a
genuine expression of the will of the people in Iraq. This is because the
risk of being found in opposition to the President and the prevailing order
is literally life-threatening: according to Revolution Command Council
decree No. 840 of 4 November 1986, any person insulting the President of
the Republic, the Revolution Command Council, the National Assembly, the
Government or the Baath Party is subject to severe penalties, including
death. This kind of law placed in the hands of a totally intrusive
security apparatus, unconstrained by any respect for the rule of law, means
that virtually no citizen would risk demonstrating any opposition to the
presidency or Government - or would do so at his mortal peril. Indeed,
this conclusion is logical as long as there exists in Iraq such coercive
forces as decree No. 840 or political attacks against, and killings of,
perceived oppositional leaders (see, e.g., A/49/651, paras. 72-88).
55. Given the prevailing legal and political order in Iraq, the national
referendum of 15 October 1995 confirmed nothing except the fact that, even
amid heavy economic pressures, the government authorities are capable of
organizing such an event in a period of only three weeks and achieving,
according to Iraqi television, a 99.96 per cent "approval" of the President
from a staggering participation rate of 99.467 per cent of the 8,402,321
eligible voters. Perhaps more noteworthy is the fact that the overwhelming
results were achieved without the President once having to address the
people, appear in public, make a single promise or in any sense campaign to
win the approval of the electorate. The extremely high turn-out also
indicates that the population was already fully identified and listed by
voting district at the time the referendum was announced. This fact
underlines the degree to which the government authorities are in control of
the movement and activities of people within the country.
56. Regarding the conduct of the referendum, all eligible voters were
reportedly sent a two-part ballot card prior to the referendum with the
first part of the card requiring detailed personal identification and with
the second part, detachable from the first, constituting the ballot itself.
At the polling stations, voters were to present to the referendum
administrators, in the presence of various Iraqi security forces and Baath
Party officials, the first part of the ballot card together with official
papers verifying their identity and eligibility, whereupon voters were
directed to complete the second part of the card in a separate booth and
then to place their completed ballots into an opaque sealed box. In the
light of the overall political order in Iraq, but also in the light of the
specific process at the polling stations, it may be appreciated that few if
any voters would have felt confident to express their views against the
President just after having formally presented themselves to security
forces and Baath Party officials. Indeed, this may to large extent explain
the remarkable fact that not one person voted against the President in the
governorates of Karbala, Najaf, Misan, Muthana or Dhi Qar, while only 18
voted against in Basrah, i.e. virtually no one voted against the President
in the southern governorates that had been the scene of bloody uprisings in
April 1991. However, this seemingly paradoxical voting result may well be
an entirely rational result based on fear resulting from the harsh
repression of April 1991 and its aftermath; the population has now been
totally subdued, made to conform, become economically exhausted and totally
dependent. In such circumstances, it would appear natural to follow one's
basic survival instincts and vote rationally in favour of the President,
although this "rational" vote could hardly be construed as an expression of
the genuine will of the people.
57. One important fact is that the participating voters hardly represented
the totality of the relevant Iraqi population. To begin with, between 2
and 3 million eligible voters in the northern governorates of Arbil, Dohuk
and Suleimaniyah did not participate because the central authorities
withdrew from the region in October 1991, leaving it to its own local
administration. A second group of about 2 million Iraqis also was not
taken into account by the referendum: these persons fled or were expelled
from Iraq and now live outside their country precisely because of President
Saddam Hussein and his policies; for the most part, these people voted
against Saddam Hussein with their feet.
58. In trying to understand the significance of the referendum, which is,
in fact, the first time in Saddam Hussein's presidency that he has ever
gone directly to the people, the Special Rapporteur notes the remarks of
Deputy Prime Minister Tariq Aziz, as reported by the Iraqi News Agency in
Baghdad on 17 October 1995, who stated that the referendum was part of a
process of moving "from revolutionary to constitutional legitimacy".
Without fully understanding the notion of "revolutionary legitimacy" as it
applies to a Government that has prevailed for well over a quarter century,
the Special Rapporteur understands from Mr. Aziz's remarks that Iraq is
certainly not a State with constitutional legitimacy, i.e. Iraq is not a
State under the rule of law. Certainly, this admission by Mr. Aziz only
confirms what the Special Rapporteur has observed since he first took up
his mandate: in so far as the prevailing legal and political order in Iraq
does not respect the rule of law, Iraq is in violation of its international
obligations in the field of human rights law. However, in relation to the
internal political regime within Iraq, it would appear that the logic of
the present "revolutionary legitimacy" would not have required Saddam
Hussein to relinquish the presidency even if he had not succeeded in
obtaining an "endorsement" from the people: he could simply have continued
to lead the revolution as he had been doing so far. If this means that the
referendum had no legal implication within the State, then what was the
motivation for the event? By this analysis, it would appear that the
referendum had little to do with domestic legitimacy or respect for human
rights (indeed, it was a mockery of international human rights standards),
but more to do with an external political agenda. In the view of the
Special Rapporteur, this was the significance of the referendum of 15
October 1995.
VII. CONCLUSIONS
59. From his analysis of Revolution Command Council decrees Nos. 61 and
64, the Special Rapporteur concludes that their heavily conditioned nature
greatly reduces their possible value to the addressees. Moreover, in the
absence of far greater change in the legal and political order of Iraq,
especially the abrogation of repressive laws quelling freedoms of thought,
information, expression, association and assembly, decrees Nos. 61 and 64
merit virtually no confidence. In the light of the legal system and
political situation that prevail in Iraq, and barring the abrogation of
existing laws, the effect of the so-called "amnesty" decrees cannot be
considered a step towards liberalization of the government system in
accordance with the obligations undertaken by the Government of Iraq.
60. With respect to the several hundred persons who still remain missing
as a result of the illegal Iraqi occupation of Kuwait in 1990 and 1991, the
Special Rapporteur reaffirms his opinion that the Government of Iraq is
fully responsible for the fate of these persons and must take every step to
assist in determining their exact whereabouts or fates. The Special
Rapporteur concludes that the Government's resumption of participation in
the Tripartite Commission is a positive step that needs to be followed up
by full, open and energetic cooperation aimed at resolving the outstanding
cases without any further delay.
61. On the subject of the amputation decrees, which are still in force
within Iraq notwithstanding decrees Nos. 61 and 62, the Special Rapporteur
concludes that they remain gross violations of human rights and an offence
to the population as a whole and, in particular, to the individuals who
must endure their cruel and unusual punishments.
62. With regard to the rights to food and health, the Special Rapporteur
emphasizes again the responsibility of Iraq, pursuant to article 2 of the
International Covenant on Economic, Social and Cultural Rights, to which
Iraq is a party, "to take steps, individually and through international
assistance and cooperation, especially economic and technical, to the
maximum of its available resources" to alleviate the suffering of the
people.
63. As concerns the national referendum of 15 October 1995, the Special
Rapporteur concludes that the result in no way reflects the genuine will of
the people as required by article 21 of the Universal Declaration of Human
Rights and article 25 of the International Covenant on Civil and Political
Rights. To the contrary, in the prevailing legal and political order in
Iraq with lifethreatening laws applicable to persons expressing any
opposition to the Government, the conduct of the referendum made a mockery
of relevant international human rights standards.
VIII. RECOMMENDATIONS
64. The Government of Iraq should immediately abrogate any and all decrees
that prescribe cruel and unusual punishment or treatment.
65. The Government of Iraq should immediately take every necessary step to
abolish the practices of torture and cruel and unusual punishments and
treatment.
66. The Government of Iraq should step up its cooperation with the
Tripartite Commission aiming to discover the whereabouts or resolve the
fate of the several hundred Kuwaitis and third-country nationals who
disappeared under the illegal Iraqi occupation of Kuwait in 1990 and 1991.
67. The Government of Iraq should immediately cooperate with the United
Nations to organize a sale of oil in order to purchase desperately needed
humanitarian goods as authorized by Security Council resolution 986 (1995).
68. The Government of Iraq should immediately abrogate all laws penalizing
the free expression of competing views and ideas and should take all
necessary steps to ensure that the genuine will of the people is the basis
of the authority in the State.
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