Informe definitivo - Informe núm. 279, Noviembre 1991

1. 37. The Trade Unions International of Public and Allied Employees (TUI) presented allegations of violations of trade union rights against the Government of Iraq in communications dated 17 September and 23 October 1990. In addition, the Governing Body of the ILO, at its 248th Session (November 1990), decided to refer to the Committee on Freedom of Association a memorandum containing allegations of violations of freedom of association made jointly on 8 November 1990 by the Government of Kuwait, the Kuwait Trade Union Federation and the Chamber of Commerce and Industry of Kuwait. The International Organisation of Employers (IOE) presented its complaint of violations of freedom of association in a communication dated 8 January 1991. Additional information was supplied by the Government of Kuwait in letters dated 18 and 28 December 1990, 20 January 1991, and by the Kuwait Trade Union Federation on 25 January 1991.
2. 38. The Government sent certain observations on the case in letters dated 11 January and 17 May 1991.
3. 39. Iraq has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 40. In letters dated 17 September and 23 October 1990, the TUI accuses the Government of Iraq of blatant violation of Conventions Nos. 87 and 98. It states that Iraq's aggression against Kuwait has led to the dissolution of Kuwait's trade unions, all of which in the public service sector are affiliates of the TUI. Not only does the TUI protest the annexation and occupation of Kuwait, but also demands an immediate and unconditional end to the occupation so that trade union rights can be restored. The TUI adds that after the 2 August invasion, Iraqi armed forces destroyed the offices of all trade unions affiliated to it, damaging the building, burning documents and ruining technical equipment. The pressure against union activity forced those union leaders still in Kuwait to work illegally, to change their names and to leave their houses. Many union leaders had to leave Kuwait because the Iraqi armed forces were trying to imprison them, although as of 20 September it appeared that only one union activist had been imprisoned. Publications of the Kuwaiti unions are forbidden, but union activists are publishing small leaflets and despite the dissolution of all unions, some activists in the fire brigades and health services are attempting to continue union activities.
2. 41. In a memorandum dated 8 November 1990, the Government of Kuwait, Kuwait Trade Union Federation and the Chamber of Commerce and Industry of Kuwait state that the Kuwaiti employers' and workers' organisations have been annihilated by the Iraqi forces, which have plundered and destroyed their premises and have detained or expelled their leaders with their families. They allege that the Iraqi occupation authorities have also destroyed civilian installations, factories, commercial establishments and all transport facilities, which has deprived 1 million inhabitants of Kuwait of their savings and means of livelihood.
3. 42. Noting that these events have been condemned by the competent bodies of the United Nations, these complainants request that the Governing Body also condemn the effect they have had on the situation of workers' and employers' organisations in occupied Kuwait and the sending of a mission to the country to report on the conditions facing these organisations.
4. 43. In its further communication of 18 December 1990, the Government of Kuwait supplies details on the daily injustices suffered by the Kuwaiti working class under the occupation forces. It refers to UN resolutions on the subject, and complains of the use of foreigners in Kuwait as "human shields" at certain strategic sites, as well as the persecution and forced flight of foreign migrant workers and the fate of their home countries which are losing an important source of economic revenue. Specifically, it refers to the following:
   • - the occupation authorities have taken over the Workers' Education Institute which had received ILO assistance for its creation;
   • - the contents of its library were taken to Baghdad and its publication Al Amel ("The Worker") was terminated;
   • - the occupation authorities emptied the premises of the headquarters of the Federation of Public Service Workers and they were turned into a detention and torture centre;
   • - the occupation authorities took over the headquarters of 11 unions, stole the equipment and furniture and converted them to detention and torture centres or military command posts;
   • - they confiscated all union bank accounts and stole, during the first hours of occupation, all the cash from workers' organisation safes;
   • - Ali Mohamed Al Ajami, member of the National Union of Petrol Workers, was executed in front of his home and family members;
   • - Nasser Moubarak Al Faraj, former President of the Kuwait Trade Union Federation, although suffering from cancer, was not allowed to receive the medical treatment he needed because the occupation forces had stolen all medicines and technical apparatus from the cancer hospital "Hossein Maké";
   • - Nohad Makrad, former Secretary of the Union of Employees of the Water and Electricity Ministry, was arrested in the early days of occupation and his whereabouts are unknown;
   • - Saleh Al Darbas, Secretary of the above-mentioned union, was arrested, tortured and is now paralysed;
   • - Hamad Soyane, President of the Federation of Petrol Workers, was arrested several times and his current whereabouts are unknown;
   • - Jalal Al Sabli, member of the executive committee of the Federation of Petrol Workers, was forced, together with members of his family, to get out of the family car at a checkpoint; the car was stolen and they were abandoned on the roadside;
   • - Ahmad Said Al Asbahi, Secretary of the Workers' Education Institute linked to the Kuwait Trade Union Federation, has his house attacked, was thrown out with members of his family while the household goods and his cars were confiscated.
5. 44. In its letter of 28 December 1990, the Government of Kuwait announces the death of union leader Nasser Moubarak Al Faraj, mentioned in its earlier communication, from lack of medical treatment. It adds the following additional information:
   • - Mohamad Abdel Mohsen Al Osaymi, former President of the Kuwait Trade Union Federation and of the Union of Ministry of Education Staff, was arrested and tortured and his residence was burnt down;
   • - Nasser Hamad Mojib, former President of the Federation of Petrol and Petrochemical Industry Workers and of the Chemical Industry Union, was arrested and his house burnt down;
   • - Ali Mahdi Al Ajami, President of the Union of Workers in the Kuwait Petrol Company and Vice-President of the Federation of Petrol Workers, was arrested and forced to flee Kuwait and his house was burnt down;
   • - Mofreh Al Tahous Al Otaybi, Internal Relations Secretary of the Kuwait Trade Union Federation and Secretary-General of the Union of the Ministry of Education Staff, was forced to flee Kuwait and his house was burnt down;
   • - Nachi Al Saad Al Ahsan, former union member of the Kuwait Petrol Company, was forced to flee Kuwait and his house was burnt down.
     • The Government adds that many other trade union leaders and members inside occupied Kuwait, whose names it cannot reveal for fear for their families' safety, have disappeared and their whereabouts are unknown.
   • 45. In its letter of 8 January 1991, the IOE complains against the Government of Iraq for violations of the freedom of association of its member the Kuwait Chamber of Commerce and Industry (KCCI). Since the invasion on 2 August, Iraqi forces have forced the KCCI into exile and attempted to subsume the activities of the Chamber in the framework of Iraqi institutions. For example, three persons representing the Iraqi Federation of Industries and the Iraqi Federation of Chambers of Commerce, supported by armed occupation forces, forced their way into KCCI premises and announced to those present that the KCCI was henceforth subordinated to the Iraqi organisations; they demanded the KCCI's documents and ordered that it be split into two branches along the lines of the Iraqi system, namely one for commerce and one for industry. The intruders also tried to recruit senior KCCI staff present to form a puppet committee to give the impression that Kuwaiti employers supported the invasion, but they did not succeed. Since anyone who refused to cooperate with the authorities was arrested, imprisoned, tortured and murdered, the KCCI officials felt obliged to flee the country and set up operations from a temporary office in Dubai. According to the IOE, neither the elected board nor the General Assemby of the KCCI can hold meetings or elections or any other normal functions.
6. 46. In a further communication, dated 20 January 1991, the Government of Kuwait alleges the death of union leader Manihan Ramadan Al Arabi, after he escaped from one of the Iraqi occupying forces concentration camps.
7. 47. In a letter dated 25 January 1991, the Kuwait Trade Union Federation alleges violations of trade union rights following the Iraqi occupation, detailing insofar as possible in the prevailing situation of insecurity the need to protect union leaders inside Kuwait who are being hunted by torture and execution squads. In addition to the numerous deaths of workers at their workplaces during the invasion itself, this complainant gives more details on the following specific cases mentioned above:
   • - the death of Nasser Moubarak Al Faraj when Iraqi death squads pursued him in to the hospital where they disconnected the apparatus keeping him alive; and
   • - the death of Moliehan Ramadan Al Arbi who, suffering a cardiac ailment, was ousted from his hospital bed when the "Al Jahra" hospital was converted into a military hospital and was then forced to flee across the desert towards Saudi Arabia during which he died.
8. 48. This complainant also alleges the loss of work suffered by about 400,000 Kuwaitis who were forced to flee their country, as well as their loss of belongings which took place during the pillage of Kuwait organised by the Iraqi authorities. For instance, it repeats the details of arrest, torture and loss of personal belongings concerning the above-mentioned trade union leaders Mohamed Abdel Mohsen Al Osaymi, Nasser Hamad Mojib, Ali Mahdi Al Ajami, Mofreh Tahous Al Oteibi, Nachi Al Saad Al Ahsan, as well as the fears for the safety and whereabouts of certain unionists listed above who remained in Kuwait. The new names of missing unionists it supplied are as follows:
9. (1) Ali Abdel Rahman Al Kandari, Secretary-General of the Kuwait Trade Union Federation;
10. (2) Sabet Ibrahim Al Haroun, President of the Federation of Trade Unions of the Public Sector and External Relations Secretary of the Kuwait Trade Union Federation;
11. (3) Moslem Mohamed Al Barak, member of the executive committee of the Kuwait Trade Union Federation and Director of the Workers' Education Institute;
12. (4) Abdallah Al Dougaichim, member of the executive committee of the Kuwait Trade Union Federation;
13. (5) Bader Hamad Al Nadji, President of the Union of Workers in Communications and External Relations Secretary of the Union of Public Sector Staff;
14. (6) Kaled Al Chamri, Secretary of the Water and Electricity Union;
15. (7) Mohamed Abdellah Al Ojeylane, President of the Union of Finance Workers;
16. (8) Hossein Saker Abdel Latif, former President of the Kuwait Trade Union Federation, former Deputy Director-General of the Arab Labour Organisation;
17. (9) Ali Hossein Al Yohat, member of the executive committee of the Union of Municipality Workers and Firefighters;
18. (10) Hasan Falah Al Ahsan, former President of the Union of Workers in the Kuwait Petrol Company and of the Federation of Petrol Workers and former executive committee member of the Kuwait Trade Union Federation;
19. (11) Ibrahim Ali Al Kandari, Vice-President of the Union of Electricity and Water Workers;
20. (12) Ali Mohamed Al Mohana, Administrative Director of the Workers' Education Institute and member of the executive committee of the Kuwait Trade Union Federation;
21. (13) Abdallah Al Saad Al Ahsan, former President of the Kuwait Trade Union of Petrol Workers;
22. (14) Bandar Ibrahim Al Kayran, Vice-President of the National Union of Petrol Workers;
23. (15) Ibrahim Ali Abdallah, member of the executive committee of the Union of Workers in the Kuwait Petrol Company and of the Workers' Education Institute;
24. (16) Amar Hamoud Al Ajami, former executive committee member of the Federation of Petrol Workers;
25. (17) Fahed Faleh Al Sahli, member of the executive committee of the Union Petrochemical Workers and former member of the Federation of Pertol Workers.
26. 49. Lastly, this complainant adds that the premises of various unions, of the Workers' Education Institute and of the workers' publication "Al Amel" have been pillaged and the modern equipment therein (such as typewriters, photocopiers, telephones and fax machines, computers, videos, air conditioning equipment, etc.) taken. Union paperwork and files have been destroyed or stolen.

B. The Government's reply

1. 50. In a communication dated 11 January 1991, the Government sends very general information on the situation which gave rise to the complaints.
2. 51. First, it challenges the authority of the Government of Kuwait to present the memorandum because, having been put in place by the British colonial regime over a separated part of Iraq, these authorities no longer have legal or legitimate status now that unification has brought Kuwait back into Iraq, as its 19th province. The Government of Iraq adds that all ratified Conventions are being applied throughout its territory, in particular through the Trade Unions Act No. 52 of 1987. Now that Kuwaiti workers are part of the Iraqi people, they benefit from the rights set out in the Iraqi Constitution, such as equality before the law. This was pointed out in a presidential circular of 5 August 1990. The Government is therefore of the opinion that there is no basis for accusations of inhumane treatment.
3. 52. The Government points out that the administrative measures taken in the province of Kuwait were sovereign acts and linked to the American invasion in the region which necessitated the taking of measures to protect the national and citizens' security. It stresses that it took no measures to force Arab and foreign workers to leave their employment and the country: it believes that it was after the military intervention of certain foreign governments and the unjust air, land and sea blockade that workers decided to leave. Their salaries and monies due were paid to them in national currency. It is of the view that this temporary flight of labour will cease when the threat of war disappears with the withdrawal of foreign troops. In response to certain other allegations, the Government states that the National Assembly decided, following a presidential request dated 6 December 1990, to authorise foreigners who so wished to leave Iraq. It therefore considers that it is not necessary to send a mission to investigate the allegations, which it absolutely denies and rejects.
4. 53. In a further letter of 17 May 1991, the Government reiterates its comments on the situation of Arab and foreign workers in Kuwait and states that it is not necessary to pursue this question given the changed circumstances and Iraq's withdrawal from Kuwait. As for the other allegations listed by the various complainants, the Government adds that they are part of a campaign of denigration organised against Iraq after 2 August 1990; given the changed circumstances, it does not wish to go into this again.

C. The Committee's conclusions

1. 54. The Committee notes that the allegations presented in this case come from both international and national workers' and employers' organisations and a government, and refer to a number of serious events following Iraq's invasion of Kuwait on 2 August 1990.
2. 55. The allegations can be grouped around four principal aspects of freedom of association: (a) the dissolution of all workers' and employers' organisations in the country, with the consequence that their leaders were forced to flee or work clandestinely; (b) the occupation and/or destruction of occupational organisations' premises (including the Workers' Education Institute), property and assets, confiscation of union bank accounts, banning of union publications; (c) the deaths of three trade union leaders (Messrs. Ali Mahdi Al Ajami, Nasser Moubarak Al Faraj and M. Ramadan Al Arbi); and (d) the arrest and/or disappearance of a total of 23 named trade unionists (three listed in a letter of 18 December 1990, three listed in a letter of 28 December 1990 and 17 listed in a communication of 25 January 1991).
3. 56. Neither of the Government's replies gives specific responses to the detailed allegations concerning named union leaders and members. The Government's first reply denies the allegations in general terms, relying on the Iraqi Constitution and labour laws as sufficient protection of freedom of association for the workers involved. It justifies the administrative measures taken by reference to the military operations under way at that time. Its second letter points out that Iraq withdrew from Kuwait and maintains that examination of the case need not be pursued in view of these changed circumstances. It adds that the allegations were part of a denigration campaign against Iraq over the events of 2 August 1990 and does not wish to go into them.
4. 57. At the outset the Committee must express its regret that, apart from these brief communications suggesting that the case need no longer be discussed in view of the Iraqi withdrawal from Kuwait, the Government has not sent detailed responses to the many serious allegations listed by both the Kuwait workers' and employers' organisations and the Kuwait Government itself. The Committee would recall the importance for governments of formulating full and detailed replies, so as to allow a thorough examination of the allegations brought against them.
5. 58. Also at the outset, the Committee emphasises the seriousness of the allegations made in this case. It deplores in the strongest terms the violence used against trade union leaders and members and recalls that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists and that governments should ensure that this principle is respected (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 70). It draws the Government's attention to the contents of the resolution concerning trade union rights and their relation to civil liberties, adopted by the International Labour Conference in 1970, which stress that the absence of civil liberties removes all meaning from the concept of trade union rights; the rights conferred on workers' and employers' organisations must be based on respect for those civil liberties, such as security of the person and freedom from arbitrary arrest and detention (Digest, para. 72).
6. 59. Turning to the first principal allegation in the case, the Committee notes that, according to the complainants, all workers' and employers' organisations in Kuwait were dissolved after the invasion and their leaders forced to flee the country or to work clandestinely. The Government is silent on this. However, it appears that following the end of hostilities, the organisations of the country have been able to resume functioning and return to the territory. For example, representatives of the Kuwait Chamber of Commerce and Industry and of the General Union of Kuwait Workers attended together with the Kuwaiti Government delegation the 78th Session of the International Labour Conference in June 1991. The Committee must draw the attention of the Government of Iraq to the principle that measures of suspension or dissolution by the administrative authority constitute serious infringements of the principles of freedom of association.
7. 60. Secondly, with regard to the deaths of three trade union leaders (Messrs Ali Mahdi Al Ajami, Nasser Moubarak Al Faraj and Manihan Ramadan Al Arbi) in circumstances linked to the invasion itself, the Committee cannot but deplore these losses of life, especially as the Government makes no comment thereon at all. It would recall that a climate of violence such as that surrounding the murder of trade union leaders constitutes a serious obstacle to the exercise of trade union rights and such acts require severe measures to be taken by the authorities (Digest, para. 76).
8. 61. Thirdly, as regards the 23 arrested and/or missing trade unionists listed by the complainants, the Committee once again deplores the Government's lack of cooperation in supplying information on their whereabouts and any charges laid against them and their current legal status. It draws the Government's attention to the principle that the detention of trade union leaders and members for activities connected with the exercise of their trade union rights is contrary to the principles of freedom of association (Digest, para. 87). In addition, the arrest and detention of trade unionists, even for reasons of internal security, may constitute a serious interference with trade union rights unless attended by appropriate judicial safeguards (Digest, para. 94). The Committee would particulary recall that detained unionists, like anyone else, should benefit from normal judicial proceedings and have the right to due process, in particular, the right to be informed of the charges brought against them, the right to have adequate time and facilities for the preparation of their defence and to communicate freely with counsel of their own choosing, and the right to a prompt trial by an impartial and independent judicial authority (Digest, para. 110). The Committee asks the Government of Iraq to release these unionists if any are still in detention.
9. 62. Lastly, as concerns the various allegations of destruction of property, premises and equipment and confiscation of financial assets of workers' and employers' organisations in Kuwait, the Committee recalls the 1970 resolution on trade union rights and their relation to civil liberties, mentioned above, which declares that the right to adequate protection of trade union property is one of those civil liberties which are essential for the normal exercise of trade union rights. The Committee accordingly requires that, where identification of confiscated documents, equipment and monies is possible, the Iraqi authorities restore such property to the workers' and employers' organisations to which it rightly belongs and that, where this identification is not possible, the Iraqi authorities supply just compensation.