The 2004 Afghan Constitution, in article 23 asserts the right to life, envisaging at the same time the possibility of its deprivation by the provision of law. However, in accordance with Article 396 of Afghanistan's Constitution, a convict sentenced to death can appeal to two higher courts and article 129 of the Constitution establishes that “...All final decisions of the courts shall be enforced, except for capital punishment, which shall require presidential approval.”
The 1976 Penal Code, still in force nowadays, identifies the crimes subject to capital punishment in numerous articles, which refer to two main categories: crimes against the security of the State and crimes against individuals, namely certain types of aggravated murder.
Other provisions of aggravated murder have been included in recent legislation, such as: the Anti Narcotic and Drug Law issued in November 2003, which provides for the death sentence in the case where a drug smuggler, while resisting arrest, kills a law enforcement officer; and the presidential decree of July 3, 2004 that foresees the death penalty for those convicted of child kidnapping and smuggling aimed at using the victim's body parts whenever a death is caused as consequence.
Crimes punishable by death are also listed in the Law on Crimes against Internal and External Security of 1987, and in the Military Law of 1989, both of soviet inspiration and still in force. Such crimes are mostly related to the security of the State, especially in time of war. The crimes identified by these laws are processed respectively by the National Security Court and by the Military Court.
However, the newly adopted Juvenile Code, that defined as juvenile “a person who has completed the age of 12 and has not completed the age of 18”, clearly states, under article 39, paragraph c, that children cannot be convicted to death penalty.
On October 9, 2004 Afghans voted for a president in the country’s first democratic election. Hamid Karzai, at the helm of the country since 2001, defeated 17 other candidates in an election said by observers to be largely fair. His government replaced an interim administration in place since December 22, 2001. This administration was formed at UN-brokered peace talks where Afghan factions came to a power-sharing agreement. This followed the ousting of the Taliban administration in November 2001 after weeks of US-led aerial bombardment and attacks on the ground by opposition forces. The military action ensued in response to the September 11, 2001 terrorist attacks on New York and Washington and the Taliban refusal to hand over the suspected instigator Osama Bin Laden.
Afghanistan’s Penal Code dates back over three decades. The Government is drawing up a new one to unify fragmented rules and cover crimes missed out when the last version was written. As part of the process, in November 2013, a committee tasked with looking at Sharia law came up with a new draft of the country’s Penal Code concerning “moral crimes”. The Justice Ministry’s working group recommended that if a couple is found by a court to have engaged in sexual intercourse outside a legal marriage, both the man and woman shall be sentenced to “[s]toning to death if the adulterer or adulteress is married.” If the “adulterer or adulteress is unmarried,” the sentence shall be “whipping 100 lashes,” according to the draft. The provisions stated that the “implementation of stoning shall take place in public in a predetermined location.” But after several days of silence in the face of growing international outcry, the Justice Ministry said in a statement that although stoning had been proposed it would not appear in the new legislation because there was “no need to regulate the issue.” The country’s Penal Code already encompasses Sharia law, but some controversial aspects of traditional punishments such as stoning have never been put on the books in Afghanistan. On 28 November 2013, President Hamid Karzai said in an interview that the grim penalty, which became a symbol of Taliban brutality when the group was in power, would not be coming back. “It is not correct. The Minister of Justice has rejected it,” he told Radio Free Europe, days after the UK Minister Justine Greening urged him to prevent the penalty becoming law.
On January 4, 2004, after three weeks of ferocious debate, the 502 members of the Loya Jirga – or grand council - adopted a new constitution. The 160 articles make no explicit reference to Sharia law, but the constitution declares Afghanistan to be an ‘Islamic republic’ and states that ‘no law shall be contrary to the beliefs and provisions of the sacred religion of Islam.’ – and the Islamic provisions do foresee capital punishment, namely for crimes against Islam (armed robbery, adultery, and apostasy or blasphemy), and for crimes against the person (murder). However, another constitutional provision, article 27, requires the existence of an approved law for the qualification and punishment of a crime, and it may be argued that the Islamic provisions on death penalty are not approved laws.
According to the report Freedom of Thought 2015, published by the International Humanist and Ethical Union (IHEU), the “crime” of apostasy was found to be punishable by death in 12 of the most fundamentalist Muslim countries among which Afghanistan.
In fact, since the end of the Taliban regime, in Afghanistan no judicial death sentences have been issued for crimes, such as adultery and apostasy, which are foreseen by Islamic principles and have no correspondence in positive laws.
Despite the ousting of the Taliban, the influence of religious conservatives over the judicial system is still very strong. The infamous "Ministry for the Promotion of Virtue and Prevention of Vice", the Taliban's ruthless religious enforcement agency, has not been abolished, although it has lost its ministerial status and it is now known as the Department of Islamic Instruction.
There are no official data about the executions carried out during the period of the Taleban, but in 2001 alone at least 68 individuals, including at least 2 women are believed to have been executed.
Since the fall of that regime, in 2001, several capital sentences have been issued, but there is no precise number and reports vary from 11, made public through the media, to 38, submitted to the presidential approval in July 2005.
In 2002, for the first time in decades, no executions were carried out and just one death sentence was issued. In 2003, for the second year running, there were no executions.
Afghanistan carried out its first execution since the fall of the Taliban on April 20, 2004, shooting dead Abdullah Shah, a former military commander convicted of more than 20 murders.
No executions took place in Afghanistan in 2005 and 2006 but in 2007 Hands Off Cain recorded 15 executions. In 2008 at least 17 were carried out, while there were no executions in 2009 nor in 2010. Two executions were carried out in 2011, 14 in 2012, 2 in 2013, 6 in 2014 and 1 in 2015.
In 2016, six more executions were carried out for terrorism. At least 4 new death senteneces were imposed in 2016 and at least 600 individuals result to be sentenced to death. According Afghanistan Analysis Network (AAN) the majority of these individuals have been sentenced for ‘ordinary’ crimes, such as murder, while a notable number—estimated to be around 100 individuals—were sentenced for mass murder through acts of terrorism.
With regard definitive death sentences, figure does not appear to have changed since October 2014, when President Ghani came to power and Presidential Palace officials said the government would review the cases of 400 convicts sentenced to death by the courts of the country. They further added that around 100 cases had been approved by the Supreme Court of Afghanistan and were pending the signing of the new President, Ashraf Ghani, while over 300 others had not been approved by the Supreme Court. However, they insisted that the government would seek alternatives for the convicts who were waiting for death penalty. President Ghani’s legal advisor, Abdul Ali Mohammadi told Radio Free Europe (RFE) that President Ghani was committed to ensure justice and his visit to Pul-e-Charkhi prison was an example of his commitment to maintain justice in the country.
Extra-judiciary executions by hanging, beheading and stoning were carried out in Afghanistan in the zones controlled by the Taliban who have run informal justice systems implementing a harsh version of Sharia, such as stoning women to death and chopping off thieves’ hands.
Some Afghanis even turn to Taliban courts to solve disagreements, as the national government’s politicians are seen through a doubtful eye for the widespread corruption in the government. In the areas they control, the Taliban bans girls from attending school and enforces gender separation in public events, including weddings. They also collect taxes from residents to maintain their armed control of the areas.
The War on Terror
The 1976 Penal Code, still in force nowadays, identifies the crimes subject to capital punishment in numerous articles, which refer to two main categories: crimes against the security of the State and crimes against individuals, namely certain types of aggravated murder. Crimes punishable by death are also listed in the Law on Crimes against Internal and External Security of 1987, and in the Military Law of 1989, both of soviet inspiration and still in force. Such crimes are mostly related to the security of the State, especially in time of war. The crimes identified by these laws are processed respectively by the National Security Court and by the Military Court.
In 2016, six have been executed for terrorism.
In 2009, the UN Human Rights Council during its Universal Periodic Review of human rights in Afghanistan made several recommendations relating to the use of the death penalty in Afghanistan such as the reinstatement of an official moratorium on the death penalty and ultimately abolish the death penalty, but Afghanistan rejected the recommendations.
On 27 January 2014, Afghanistan was reviewed again under the Universal Periodic Review of the UN Human Rights Council. In its responses to the recommendations received, the Government rejected those to establish a moratorium on executions with a view to removing the death penalty from criminal statutes and ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights. On 19 June, in its oral statement for the adoption of Afghanistan’s UPR final Report, the head of the country’s delegation said “the decisions of the hierarchy of courts including the Supreme Court are not enough for the imposition of the death penalty. The President seldom uses his power to endorse the Supreme Court decisions… In practice he imposes a kind of moratorium on the death penalty.”
On December 19, 2016, Afghanistan voted again against the Resolution on a Moratorium on the Use of the Death Penalty at the UN General Assembly.