International Law

Professor of Islamic Finance at the University of Liverpool (2012)

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Email: gabygms@gmail.com

Tel. (609) 915-2237

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BBC: http://news.bbc.co.uk/2/hi/south_asia/8608878.stm

WHAT IS THE DIFFERENCE BETWEEN CRIMES AGAINST HUMANITY AND GENOCIDE?

Crimes against humanity and genocide are two distinct concepts. The basic difference between the two concepts is as follows: Crimes against humanity target killing of a very large numbers of individuals. Genocide focuses not on the killing of individuals, but on the destruction of groups such as religious affiliation, race, ethnicity, etc. In other words, in a genocide, the perpetrator targets a large number of individuals who form part of a single group. The two concepts have different objectives. One aims at protecting the individuals; the other aims at protecting the groups.

The legal definition of the two concepts came into practice towards the end of World War II when the Allies were working on establishing the Nuremburg trials for the charging leading Nazi defendants of one of these two concepts. After a big debate on the issue, the leading prosecutors charged the defendant with crimes of humanity. They argued that the crimes were committed against a huge number of individuals.

In 1998, the statute of the International Criminal Court (ICC) was drafted, it contained both crimes against humanity and genocide provisions. Prosecutors claiming that a genocide has taken place must show that the person who did the act intended to destroy a group. Similarly, prosecutors who claim that crimes of humanity are committed, must provide evidence that the person involved in those crimes intended to kill individuals.

And finally, according to article 63(1) of the Statute of Rome, the ICC does not conduct trials in absentia. This means the person charged with crimes should be handed over or arrested outside his country.

Travelled extensively to Saudi Arabia, the Arabian Gulf region, and other countries in the Middle East, and wrote numerous articles on Islamic divorce in USA and abroad.

Prof. Sawma speaks, reads and writes, Arabic, English, French and a few other Semitic languages spoken in the Middle East.

Interviewed by the following news organizations;

CNN:http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html

Professor of Islamic Finance at the University of Liverpool (2012)

CONTACT INFORMATION

Email: gabygms@gmail.com

Tel. (609) 915-2237

VISIT OUR WEBSITES AT THE FOLLOWING LINKS:

BBC: http://news.bbc.co.uk/2/hi/south_asia/8608878.stm

Sunday, November 29, 2020

Parental Abduction of Children in Saudi Arabia

By Professor Gabriel Sawma

November 29, 2020

INTRODUCTION

Saudi Arabia is one of the most influential countries in the Islamic world; it is the world’s largest exporter of petroleum and oil products and is one of the richest countries in the in its oil reserve. Saudi Arabia is also the custodian of the two holy cities of Meccah and Madinah. The Prophet Muhammad was born in Meccah in 570 A.D., and moved at a later age to Madinah, in which he established the Islamic faith. The main sources of Islam are the Qur’an, which is composed of the revelations that descended on the Prophet during his ministry, and the Hadeeth or Sunnah, which contain the sayings and deeds of the Prophet. Saudi Arabia is a monarchy headed by the Al Saudi royal family, with a council of ministers.

SOURCE OF FMILY LAW IN SAUDI ARABIA

The most important constitutional document is Saudi Arabia is known as The Basic System (or Basic Law) which took effect in 1992. It specifically states that the Qur’an and the Sunnah of the Prophet Muhammad are the Kingdom’s constitution. Article 7 of the Basic System reaffirms Islamic Shari’ah (i.e., Islamic Religious Law) as the foundation of the Kingdom, stating that the government draws its authority from the Qur’an and the Sunnah, and that these two sources govern all administrative regulations of the state. It emphasizes that the role of the state and objectives is to protect the principles of Islam and to enforce its Shari’a. Th Basic System is guided by Islamic law when defining the nature, the objectives, and the responsibilities of the State.

Being the center of Islam, Saudi Arabia embraces the legal, economic, and social percepts of Islam, which acts as a major force in determining the institutional norms, patterns and structures of Saudi society. As such, Islamic faith is not only a religious ideology, but a whole comprehensive social system embracing detailed prescriptions for the entire way of life, and provides guidance to Muslims in all social, political, commercial and economic affairs. It also governs the law of family relations including marriage, divorce, and custody of the children.

Article 1 of the Basic System reads the following: “The Kingdom of Saudi Arabia is a sovereign Arab Islamic State. Its religion is Islam. Its constitution is Almighty God's Book, The Holy Qur'an, and the Sunna (Traditions) of the Prophet (PBUH). Arabic is the language of the Kingdom. The City of Riyadh is the capital.”

This means laws relating to marriage, divorce, custody of the children and inheritance are not codified; they are governed by Islamic law (shari’a law). Thus, polygamy is permitted for men limited to four wives at any one time. There is no minimum age for marriage and the Grand Mufti reportedly said in 2009 that “girls of the age of 10 or 12 were marriageable.” Saudi mufti okays marriage for 10 year old girls (alarabiya.net)

Men have unilateral right to divorce their wives (Arabic talaq) without judicial interference. The divorce takes effect from the time a husband pronounces the divorce. A woman can only obtain divorce with the consent of the husband or obtain a judicial divorce through Shari’a court.

When divorce occurs, the father has custody of his sons at the age of nine and daughter at the age of seven. The right of a husband to marry up to four wives, combined with his ability to divorce his wife at anytime without cause, can translate to unlimited polygamy.

SAUDI ARABIA IS NOT PARTY TO THE HAGUE CONVENTION

The Kingdom of Saudi Arabia is not party to the Hague Convention on the Civil Aspects of International Child Abduction, nor any international or bilateral treaties in force between Saudi Arabia and the United States dealing with international parental child abduction. The Hague Convention treaty puts into place general guidelines regarding how to handle international child abduction and international custody disputes. Accordingly, there are no legal standards governing the return of kidnapped children from Saudi Arabia. American women marrying Saudi nationals should bear in mind that the children born out of the marriage are considered Saudi citizens by Saudi Arabia, not U.S. citizens. This means the Shari’a court in Saudi Arabia will grant custody of the children to the father in the event of divorce.

American women married to Saudi citizens planning to travel with their children to Saudi Arabia should bear in mind that the husband may not allow the return of the children to USA.

The Saudi husband ask his wife to allow the children to travel to Saudi Arabia for a short vacation. After the children arrived, the father refused to return the children to the U.S. The wife may lose contact with the children after that. The father may refuse all requests from U.S. Embassy in Saudi Arabia for welfare and whereabouts visits.

SAUDI COURTS GENERALLY DO NOT AWARD CUSTODY OF CHILDREN TO NON-SAUDI WOMEN

An American woman married to a Saudi citizen will not be able to obtain a Saudi court judgment of custody of her children unless she resides in Saudi Arabia, or the father is not Muslim. All Saudi citizens are considered to be Muslims.

This author represented numerous clients of various Middle East nationalities including Saudi Arabia. In 2015, I testified in a court in Pennsylvania on behalf of two girls born of an American mother and Saudi father. The court agreed with our testimony and allowed the girls to stay with their mother in the U.S.

In 2016, a desperate American mother of three children, who were residing with their father in Saudi Arabia, were ordered by a court in New Jersey to send the children to USA after my testimony was heard before the judge.

In 2012, I wrote an affidavit to the Supreme Court of Westchester County in New York for recognition of a divorce and custody order from Abu Dhabi. The Judge recognized the foreign court order and granted custody of the children to the mother.

In all the cases that I was privileged to testify before the court, the credit goes to the left behind parent who never abandoned the fight to regain their children no matter what the odds were.

DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.

Travelled extensively to Saudi Arabia, the Arabian Gulf region, and other countries in the Middle East, and wrote numerous articles on Islamic divorce in USA and abroad.

Prof. Sawma speaks, reads and writes, Arabic, English, French and a few other Semitic languages spoken in the Middle East.

Interviewed by the following news organizations;

CNN:http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html

Professor of Islamic Finance at the University of Liverpool (2012)

CONTACT INFORMATION

Email: gabygms@gmail.com

Tel. (609) 915-2237

VISIT OUR WEBSITES AT THE FOLLOWING LINKS:

CNN: http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html

Wednesday, June 07, 2017

CUSTODY OF CHILDREN IN KUWAITI LAW

Professor Gabriel Sawma

GEOGRAPHY AND HISTORY

Kuwait is located on the northeastern part of the Arabian Peninsula, known as Arabia, and on the northwestern head of the Persian Gulf. The country is rich, and is estimated to have the fifth largest petroleum reserves in the world. The country became independent on June 19, 1961 and is ruled by the Sabah family, who has been ruling this country for two hundred years.

On August 2, 1990, Iraq, led by Saddam Hussein, invaded and annexed Kuwait. This led the United States, under President George H. W. Bush, who created a coalition of other nations to launch Operation Desert Storm to liberate Kuwait. The war lasted until February 28, 1991, and resulted in a convincing victory for the U.S and its coalition.

Kuwait is a constitutional hereditary monarchy with its cabinet (Council of Ministers) appointed by the Emir, and a National Assembly that is elected every five years. The Parliament serves as a legislative body with the power to overturn the decrees issued by the Emir, who is head of state. The constitution of Kuwait was adopted in 1962, and the parliament is elected every four years.

Islam is Kuwait’s religion. Roughly 70% of the state’s inhabitants are Sunni, while 30% are Shi’as. More than fifty percent of the residents of Kuwait are foreigners, who are able to establish their own schools and practice their religious faiths.

On May 16, 1999, the emir of Kuwait, Shaikh Jabir al-Sabah, issued a decree to grant Kuwait women the right to vote and to run for office “in recognition of their vital roles in building Kuwaiti society and in return for the great sacrifices they had made during various challenges the country faced.”

In 1994, Kuwait signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Upon ratification, it incorporated reservations on a number of provisions, including one giving equal rights to men and women with respect to guardianship and adoption of children, saying that they conflicted with Islamic law. Kuwait’s personal status law, as we shall see below, is theoretically based on Islamic Shari’a Law.

PERSONAL STATUS LAW OF KUWAIT (PSL)

Article 2 of the Constitution of Kuwait states that the religion of the State is Islam, and that the Islamic Shari’a shall be a main source of legislation. The personal status law of Kuwait, number 51, 1984, is based on Islamic Shari’a, in accordance with the Maliki school of jurisprudence. The PSL legitimizes male protection and control over women. In Kuwait, a man may divorce his wife without her consent and is only responsible for her maintenance during the three-month period of iddah.

Article 74 of this law requires the husband to support his wife. In return for her right to nafaqa (maintenance), the wife must obey her husband and rear the children. Article 88 of PSL, however, does not give the husband an absolute right to ta’a (obedience). If a wife feels that she can no longer live with her husband and her his house, a judge cannot force her to obey her husband’s demand that she returns. Under such circumstances, the wife will lose her right to maintenance and the court will support that.

Article 102 of the PSL stipulates that a husband may divorce his wife without her consent and is only responsible for her maintenance during the three-month period of iddah during which a woman is secluded in order to determine whether she is pregnant to ensure that the husband is the only father of the child. The husband, however, is required to provide her with an allowance for any children in her custody. In addition, under Article 165, if a woman is divorced without her consent, her former husband is required to pay her maintenance for one year as a compensation. This is known as nafaqat al-mut’ah.

CUSTODY OF THE CHILDREN (HADANAH)

The Personal Status of Kuwait designates fathers as the legal guardians of their children. According to Article 194, mothers may have physical custody of the children, and in the event of divorce they retain custody of male children until maturity, which is 15 years of age, and female children until they marry, but the authority over their children is significantly less than their ex-husband’s. However, the mother loses custody if she remarries.

Religious doctrines and local tradition requires that parental control over the children is left unchallenged. This means that the government does not interfere in this area. Rather, parental authority is limitless, almost absolute. A husband may forbid his wife or daughter to work outside the home. There are no constitutional guarantees for women to employment.

Article 190 of the PSL list the qualifications of the person who has custody of the children, they include: maturity, reasonable, faithfulness, and ability to take care of the child, and keep the child healthy and good manners. Additionally, Article 191 also requires that the mother who has custody of a female child, that she would lose her custody right if she remarries a man being a relative of the child in a prohibited degree. i.e., a relative who is prohibited from marrying the female child, “if the marriage is consummated.” Article 191(b) also indicates that if the next in line for custody keeps silent for a year, without good excuse, after knowing of the consummation of a disqualifying marriage, then they lose the right to claim that custody, adding that they cannot claim ignorance of this provision as an excuse.

As to acquiring citizenship in Kuwait, Art. 2 of the Kuwaiti Nationality Law states that “Any person born in, or outside Kuwait, whose father is a Kuwaiti national shall be a Kuwaiti national himself.” The nationality of the father is therefore, the determining factor for granting a Kuwaiti citizenship to the children. In addition, Article 8 of the Kuwaiti nationality law allows the foreign wife of a Kuwaiti citizen to acquire the Kuwaiti nationality after completing 15 year of marriage.

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

· Professor of Middle East Constitutional and Islamic law,

· Expert Consultant on Islamic divorce in US Courts and Canada,

· Expert Consultant on Hindu divorce in U.S. courts,

· Expert Consultant on Iranian Shi’a divorce in USA,

· Expert Consultant on Islamic finance.

Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.

Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.

Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.

Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries;

Speaks, reads and writes several languages including Arabic, English, French and others.

Interviewed by:

BBC: http://news.bbc.co.uk/2/hi/south_asia/8608878.stm

FDU: http://view.fdu.edu/default.aspx?id=7899

Contact Information:

Email: gabygms@gmail.com

Tel. (609) 915-2237

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