situation:A significant step towards restricting the use of the death penalty was taken in Afghanistan, where the President Ashraf Ghani Ahmadzai endorsed the new Penal Code on 4 March 2017 which entered into force on 14 February 2018. This day, the UN Assistance Mission in Afghanistan (UNAMA) welcomed the coming into force of Afghanistan’s new penal code, considered as a milestone in the country’s criminal justice reform and a vital part of efforts to strengthen the rule of law. With the new penal code, Afghanistan has for the first time a comprehensive criminal code, which also incorporates the Rome Statute of the International Criminal Court covering war crimes, crimes against humanity and genocide; expands the definition of the crime of torture and significantly reduces the number of crimes for which the death penalty applies.
"Problematically, article 2 of the new Code permits judges to rule on certain Islamic crimes and decide the punishments of such crimes in accordance with Hanafi jurisprudence of the Islamic law. For example, the incorporation of Hudud and Qisas in article 2(2) means that punishments, like stoning and lashes, are at disposal.” (By Murtaza Rahimi, in Afghanistan’s new Penal Code: Whether or Not to codify Hudud and Qisas)
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, identified 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.
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, 6 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.
Five more executions were carried out in 2017. At least 11 new death sentences were imposed in 2017 according to Amnesty International. The number of those on death row is unclear. If the Government said before the UN Committee Against Torture that around 600 are on death row, at least 750 individuals result sentenced to death by the end of the year, according Deputy Attorney General Office Abdul Fatah Azizi and director general of prisons Brig. Gen. Abdul Halem Kohistani who, on 20 December 2017, were before the upper house where they briefed lawmakers about the situation of prisoners. In that occasion, Deputy AGO Abdul Fatah Azizi said the implementation of death penalty needs a more careful approach and thus the executions had to be delayed.
Extra-judiciary executions by hanging, beheading and stoning are 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.
Stoning
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.
Afghanistan’s Penal Code dates back 1976 and at art 1 includes death penalty for adultery and sex relations between people of the same sex. . 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. n 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.
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.
The War on Terror
The 1976 Penal Code 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, all for terrorism. No record of executions for terrorism in 2017.
The death penalty on women
In Afghanistan, women face a higher likelihood of being sentenced to death on the basis of domestic provisions, due to deeply entrenched discriminatory societal attitudes, and to judicial and law enforcement negative biases towards women suspected of adultery or of engaging in extra-marital relationships.
Adultery and consensual sexual relations between adults of same sex are “Zina offenses” which carry capital punishment as “hudud penalties” by Article 1 of the Penal Code of 1976. A married person who commits adultery is eligible for the death penalty while the unmarried person is eligible for severe lashing. However, stringent evidentiary requirements must be met, with the result that scholars report that no convictions for sexual offenses have ever been made without the confession of the accused (for purposes of the hadd penalty).
The treatment of homosexual sodomy varies between the schools and the Hanafi’s opinion is that a tazir penalty (not a hadd penalty) should apply.
Pregnat women are excluded from execution by the ratification of the International Covenant on Civil and Political Rights. Then, women who are more than 6 months pregnant at the time of sentencing will not be imprisoned until 4 months later – in effect, after delivery, according to deathpenaltyworldwide.org.
On 15 May 2017, the new penal code was published in the official gazette and will come into effect in February 2018 which significantly reduces the number of crimes for which the death penalty applies. It codifies all the criminal laws into one collection, as currently there exist various criminal laws that make it difficult at times for the legal community to appropriately refer to provisions of the law. However, the Law on Elimination of Violence against Women (EVAW) was the only law excluded from the Penal Code for the opposition of conservative forces. The new Penal Code, met to a more satisfactory extent the Afghanistan’s obligation under international treaties, to which Afghanistan is a party.
United NationsIn 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.”
In 2017, the Committee against Torture considered the second periodic report of Afghanistan (CAT/C/AFG/2) and on 12 June 2017, published a report welcoming the delegation’s information that a separate committee has been established to review death penalty sentences and to discuss a plan to declare a moratorium on the death penalty. However, the Committee remains concerned by the high number of prisoners on death row, which currently amounts to 600 according the Afghan Government - which however did not provide any disaggregated data as requested on the use of the death penalty - the tremendous delay in carrying out their sentences, and the conditions of detention of prisoners awaiting execution. The Committee is deeply concerned by the recent cases of executions of minors and recommended that the State party should: promptly consider taking measures for an immediate moratorium on executions and a commutation of sentences; respect international standards that provide safeguards guaranteeing the protection of the rights of those facing the death penalty; immediately end the practice of the execution of minors and commute all existing death sentences for offenders on death row who committed the crime for which they were sentenced while under the age of 18. While taking note of the State party’s affirmations that informal parallel judicial mechanisms, in particular jirga courts, may only hear civil cases the Committee expressed serious concerned that jirga courts still sentence women, notably for so-called “moral crimes”, including the death sentence.
On December 17, 2018, Afghanistan voted again against the Resolution on a Moratorium on the Use of the Death Penalty at the UN General Assembly.
