Death Penalty Worldwide

Afghanistan

Last updated on December 11, 2012

General

Official Country Name

Islamic Republic of Afghanistan (Afghanistan). [1]

Geographical Region

Asia (South-central Asia). [2]

Death Penalty Law Status

Retentionist. [3]

Methods of Execution

Hanging. [4]
Although the Penal Code explicitly mentions hanging as the sole method of execution, this only covers crimes that fall under the tazir category of Islamic law. Although there remains the possibility of alternate methods of execution for crimes defined as Hudud or Qisas under Shariah, [5] executions for offenses that may have been Hudud and Qisas crimes in 2008 were carried out by hanging. [6] In November 2012, fourteen prisoners were hanged. [7] In 2011 two men convicted of murdering 40 people in a bank siege were also hanged as punishment, [8] indicating that hanging may continue to be used as the preferred method of judicial executions.

Shooting.
In the recent past, a number of executions have been by firing squad. [9]

Comments.
A resurgent Taliban has recently carried out executions in Taliban-controlled areas pursuant to the verdicts of Taliban-controlled Shariah courts. A couple was executed in 2010 for eloping to avoid the woman’s arranged marriage to another man; the two were stoned to death by male villagers. [10] A 7-year-old boy was reportedly executed for spying on the Taliban on behalf of the government. [11] In 2011, a mother and daughter were stoned and shot to death reportedly by the Taliban following accusations of “moral deviation and adultery.” [12] In 2012, the Taliban executed a 22-year-old woman accused of adultery without an actual trial, which contradicts Shariah law. [13] These executions (which inflict inhuman and degrading treatment, including torture, on the victim) contravene the human rights protections recognized by Afghanistan’s Constitution. [14]

References

[1] Background Notes: Afghanistan, U.S. State Department, http://www.state.gov/outofdate/bgn/afghanistan/191350.htm, Nov. 28, 2011.
[2] U.N., Compostition of macro geographical (continental) regions, geographical sub-regions, and selected economic and other groupings, http://unstats.un.org/unsd/methods/m49/m49regin.htm, Sept. 20, 2011.
[3] Amnesty Intl., Death Sentences and Executions in 2011, ACT 50/001/2012, http://amnesty.org/en/library/info/ACT50/001/2012/en, Mar. 27, 2012. AFP, Afghanistan Executes Eight Prisoners: Officials, Ahram Online, http://english.ahram.org.eg/News/58699.aspx, Nov. 20, 2012. Alissa Rubin, Afghanistan Executes Six in Gesture on Taliban, New York Times, http://www.nytimes.com/2012/11/22/world/asia/afghan-suicide-bomber-kills-3-near-us-embassy.html, Nov. 21, 2012.
[4] Afghanistan Penal Code 1976, art. 98.
[5] Afghanistan Penal Code 1976, art. 1. The penalties mentioned in this article are hudud, qisas, and diat. Qisas for murder is the retributive death penalty, which the victim’s family may pardon, often for a payment of diyyah, provided the offender “the killer intended to kill and employed some means likely to have that result.” Mohamed S. El-Awa, Punishment in Islamic Law: A Comparative Study, p. 75, American Trust Publications, 1982. For the Hanafi school, the death penalty could be awarded as tazir for a murder committed without use of means particularly likely to result in death. Id. at p. 109. Hudud penalties include the death penalty for brigandage resulting in death. Khaled Abou El Fadl, Rebellion and Violence in Islamic Law, p 47, Cambridge University Press, 2001; Tahir Mahmood, et. al., Criminal Law in Islam and the Muslim World: A Comparative Perspective, p. 75, 77-79, Institute of Objective Studies, 1st. ed., 1996. Hudud penalties also include the death penalty for a range of other activities. The application of a hudud penalty or qisas penalty traditionally depended on strict evidentiary showings. Gerald E. Lampe, ed., Justice and Human Rights in Islamic Law, p. 82-83, Intl. Law Inst., 1997; S. Mahmassani, Falsafat Al-Tashri Fi Al-Islam, p. 177, 184-185, translated by Farhat J. Ziadeh, E.J. Brill, 1961; Abdel et. al. at p. 38, 47; Sanad at p. 99, 104-105; M. Cherif Bassiouni, ed., The Islamic Criminal Justice System, p. 26, 109-122, 203-204, Oceana Publications, Inc., 1982; Tahir Mahmood, et. al., Criminal Law in Islam and the Muslim World: A Comparative Perspective, p. 63-64, Institute of Objective Studies, 1st. ed., 1996; Muhammad Abdel Haleem, Adel Omar Sherif & Kate Daniels, eds., Criminal Justice in Islam: Judicial Procedure in the Shari’a, p. 24-26, 38, 45-47, I.B. Tauris & Co. Ltd., 2003. Thus, whether a penalty is hadd (singlular), qisas or tazir should depend not only on the criminal act charged but also on the nature, extent and quality of the evidence against the accused. The information typically conveyed in news reporting on an execution is often insufficient to indicate whether an execution was carried out as tazir or instead as hadd or qisas, or whether courts in practice observe evidentiary distinctions.
[6] Ben Farmer, Afghanistan Resumes Executions, Telegraph, http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/3446043/Afghanistan-resumes-executions.html, Nov. 12, 2008.
[7] AFP, Afghanistan Executes Eight Prisoners: Officials, Ahram Online, http://english.ahram.org.eg/News/58699.aspx, Nov. 20, 2012. Alissa Rubin, Afghanistan Executes Six in Gesture on Taliban, New York Times, http://www.nytimes.com/2012/11/22/world/asia/afghan-suicide-bomber-kills-3-near-us-embassy.html, Nov. 21, 2012. U.N. News Centre, UN Rights Chief Dismayed at Sudden Resumption of Executions in Afghanistan, http://www.un.org/apps/news/story.asp?NewsID=43578&Cr=afghanistan&Cr1#.ULVyhxyJniA, Nov. 22, 2012.
[8] Amnesty Intl., Death Sentences and Executions in 2011, ACT 50/001/2012, Mar. 27, 2012. Hashim Shukoor, 2 Killers in Afghan Bank Siege are Hanged in Kabul, http://www.mcclatchydc.com/2011/06/20/116140/2-killers-in-afghan-bank-siege.html, June 20, 2011.
[9] Post-Taliban Afghanistan resumes executions, ABC News, http://www.abc.net.au/news/stories/2004/04/28/1096168.htm, Apr. 24, 2004. Amnesty Intl. Report 2008, Abuses by the Afghan Government, Death Penalty, http://www.amnesty.org/en/region/afghanistan/report-2008#, 2008.
[10] Rod Nordland, In Bold Display, Taliban Orders Stoning Deaths, The New York Times, http://www.nytimes.com/2010/08/17/world/asia/17stoning.html, Aug. 16, 2010.
[11] Mattiullah Mati, Officials: Taliban Executes Boy, 7, for Spying, CNN, http://www.cnn.com/2010/WORLD/asiapcf/06/10/afghanistan.child.execution/index.html, June 10, 2010.
[12] BBC, Afghanistan Mother and Daughter Stoned and Shot Dead, http://www.bbc.co.uk/news/world-asia-15688354, Nov. 11, 2011.
[13] Matthias Gebauer, Execution Reveals Weakness of Afghan Authorities, Spiegel Online, http://www.spiegel.de/international/world/taliban-execution-highlights-helpless-afghan-authorities-a-844461.html, July 16, 2012. Ron Synovitz, Afghans Say Extrajudicial Execution was Un-Islamic, http://www.rferl.org/content/afghans-say-extrajudicial-execution-was-unislamic/24640831.html, July 10, 2012.
[14] The Constitution of Islamic Republic of Afghanistan, Art. 7, 2004.

Country Details

Language(s)

Dari (Afghan Farsi), Pashto. [1]

Population

28,396,000. [2]

Number of Individuals Currently Under Sentence of Death

At least 189 individuals are on death row. Amnesty International cited “some 200” people on Afghanistan’s death row in a press release dated November 20, 2012. [3] Afghanistan carried out fourteen executions in the days following Amnesty International’s statement, [4] and three death sentences were issued the following month. [5]

However, it is possible that the actual number of prisoners on death row could be approaching 500. At least 131 people were sentenced to death in 2008. [6] At least 133 people were sentenced to death in 2009. [7] At least 100 were sentenced in 2010. [8] An exact number of death sentences for 2011 was not available; however, Amnesty International reported that at least one death sentence was handed down in 2011. [9] At least 4 death sentences were handed down in 2012. [10] No executions were reported in 2009 and 2010. [11] Two executions were reported in 2011, [12] and 14 executions have been reported for 2012. [13] If the rate of death sentences handed down since 2008 has continued and our execution data is correct, the number of prisoners on death row in Afghanistan may approach 500.

Annual Number of Reported Executions

Executions in 2014 to date (last updated on November 7, 2014)

6. [14] (This is the number of executions reported in the media. Because of the secrecy surrounding capital punishment, we are not able to offer a reliable estimate.)

Executions in 2013

2. [15]

Per capita execution rate in 2013

1 execution per 14,198,000 persons

Executions in 2012

14. [16]

Per capita execution rate in 2012

1 execution per 2,028,285 persons

Executions in 2011

2. [17]

Per capita execution rate in 2011

1 execution per 14,198,000 persons

Executions in 2010

0. [18]

Executions in 2009

0. [19]

Executions in 2008

17. [20]

Executions in 2007

15. [21]

Year of Last Known Execution

2013. [22]

References

[1] Background Note: Afghanistan, U.S. State Department, http://www.state.gov/outofdate/bgn/afghanistan/191350.htm, Nov. 28, 2011.
[2] Background Note: Afghanistan, U.S. State Department, http://www.state.gov/outofdate/bgn/afghanistan/191350.htm, Nov. 28, 2011.
[3] Amnesty Intl., Afghanistan: President Karzai Must Immediately Stop Imminent Executions, PRE01/569/2012, http://www.amnesty.org/en/for-media/press-releases/afghanistan-president-karzai-must-immediately-stop-imminent-executions-2012, Nov. 20, 2012.
[4] AFP, Afghanistan Executes Eight Prisoners: Officials, Ahram Online, http://english.ahram.org.eg/News/58699.aspx, Nov. 20, 2012. Alissa Rubin, Afghanistan Executes Six in Gesture on Taliban, New York Times, http://www.nytimes.com/2012/11/22/world/asia/afghan-suicide-bomber-kills-3-near-us-embassy.html, Nov. 21, 2012. U.N. News Centre, UN Rights Chief Dismayed at Sudden Resumption of Executions in Afghanistan, http://www.un.org/apps/news/story.asp?NewsID=43578&Cr=afghanistan&Cr1#.ULVyhxyJniA, Nov. 22, 2012.
[5] PakTribune, Three murderers sentenced to death in Herat, http://paktribune.com/news/Three-murderers-sentenced-to-death-in-Herat-255435.html, Dec. 5, 2012.
[6] Amnesty Intl., Death Sentences and Executions in 2008, ACT 50/003/2009, p. 13, http://www.amnesty.org/en/library/info/ACT50/003/2009/en, Mar. 24, 2009.
[7] Amnesty Intl., Death Sentences and Executions in 2009, ACT50/001/2010, p. 6, http://www.amnesty.org/en/library/info/ACT50/001/2010/en, Mar. 30, 2010.
[8] Amnesty Intl., Death Sentences and Executions in 2010, ACT 50/001/2011, p. 5, http://www.amnesty.org/en/library/info/ACT50/001/2011/en, Mar. 28, 2011.
[9] Amnesty Intl., Death Sentences and Executions in 2011, ACT 50/001/2012, p. 7, http://amnesty.org/en/library/info/ACT50/001/2012/en, Mar. 27, 2012.
[10] AFP, Afghan Soldier Sentenced to Death for French Killings, http://www.afp.com/en/node/322512, AFP, July 17, 2012.PakTribune, Three murderers sentenced to death in Herat, http://paktribune.com/news/Three-murderers-sentenced-to-death-in-Herat-255435.html, Dec. 5, 2012.
[11] Amnesty Intl., Death Sentences and Executions in 2010, ACT 50/011/2011, http://www.amnesty.org/en/library/info/ACT50/001/2011/en, Mar. 27, 2011. Amnesty Intl., Death Sentences and Executions in 2009, ACT50/001/2010, http://www.amnesty.org/en/library/info/ACT50/001/2010/en, Mar. 30, 2010.
[12] Amnesty Intl., Death Sentences and Executions in 2011, ACT 50/001/2012, http://amnesty.org/en/library/info/ACT50/001/2012/en, Mar. 27, 2012.
[13] AFP, Afghanistan Executes Eight Prisoners: Officials, Ahram Online, http://english.ahram.org.eg/News/58699.aspx, Nov. 20, 2012. Alissa Rubin, Afghanistan Executes Six in Gesture on Taliban, New York Times, http://www.nytimes.com/2012/11/22/world/asia/afghan-suicide-bomber-kills-3-near-us-embassy.html, Nov. 21, 2012. U.N. News Centre, UN Rights Chief Dismayed at Sudden Resumption of Executions in Afghanistan, http://www.un.org/apps/news/story.asp?NewsID=43578&Cr=afghanistan&Cr1#.ULVyhxyJniA, Nov. 22, 2012.
[14] Heather Saul, Five men are executed in Afghanistan for gang rape, The Independent, http://www.independent.co.uk/news/world/middle-east/five-men-executed-in-afghanistan-for-gang-rape-9782443.html, Oct. 9, 2014. Khaama Press, Senior Mafia Leader Habib Istalif executed, http://www.khaama.com/senior-mafia-leader-habib-istalif-executed-8772/print, Oct. 8, 2014.
[15] Amnesty Intl., Death Sentences and Executions in 2013, p. 50, ACT 50/001/2014, Mar. 26, 2014.
[16] AFP, Afghanistan Executes Eight Prisoners: Officials, Ahram Online, http://english.ahram.org.eg/News/58699.aspx, Nov. 20, 2012. Alissa Rubin, Afghanistan Executes Six in Gesture on Taliban, New York Times, http://www.nytimes.com/2012/11/22/world/asia/afghan-suicide-bomber-kills-3-near-us-embassy.html, Nov. 21, 2012. U.N. News Centre, UN Rights Chief Dismayed at Sudden Resumption of Executions in Afghanistan, http://www.un.org/apps/news/story.asp?NewsID=43578&Cr=afghanistan&Cr1#.ULVyhxyJniA, Nov. 22, 2012. Amnesty Intl., Death Sentences and Executions in 2012, ACT 50/001/2012, Apr. 9, 2013.
[17] Amnesty Intl., Death Sentences and Executions in 2011, ACT 50/001/2012, http://www.amnesty.org/en/library/info/ACT50/001/2012/en, Mar. 27, 2012.
[18] Amnesty Intl., Death Sentences and Executions in 2010, p. 5, ACT 50/001/2011, Mar. 28, 2011.
[19] Amnesty International, Death Sentences and Executions 2009, ACT 50/001/2010, http://www.amnestyusa.org/abolish/annual_report/DeathSentencesExecutions2009.pdf, Mar. 1, 2010.
[20] Amnesty International, Death Sentences and Executions 2008, ACT 50/003/2009, http://www.amnesty.org/en/library/asset/ACT50/003/2009/en/0b789cb1-baa8-4c1b-bc35-58b606309836/act500032009en.pdf, Oct. 03, 2009.
[21] Amnesty International, Death Sentences and Executions 2007, ACT 50/001/2008, http://78.136.0.21/en/library/asset/ACT50/001/2008/en/b43a1e5b-ffea-11dc-b092-bdb020617d3d/act500012008eng.pdf, Apr. 15, 2008.
[22] Amnesty Intl., Death Sentences and Executions in 2013, p. 50, ACT 50/001/2014, Mar. 26, 2014.

Crimes and Offenders Punishable By Death

Crimes Punishable by Death

Aggravated Murder.
Murder is prosecuted as carrying a qisas (retributive) penalty under the Hanafi school, if Shariah evidentiary standards are met. If those standards are not met, murder is prosecuted as a tazir offense. [1] For the Hanafi school, the offender is subject to death as qisas if “the killer intended to kill and employed some means likely to have that result.” [2] The Penal Code enumerates aggravating factors; when one of these factors is present, “[a] murder shall be sentenced to death.” [3] For some aggravated murders (a murder targeted at one individual but resulting in multiple killings, or a murder followed by dismemberment of the victim), the punishment is death or life imprisonment. [4]

Murder.
Murder is prosecuted as carrying a qisas (retributive) penalty under the Hanafi school, if Shariah evidentiary standards are met. If those standards are not met, murder is prosecuted as a tazir offense. [5] For the Hanafi school, the offender is subject to death as qisas if “the killer intended to kill and employed some means likely to have that result.” [6] Under the statute, premeditated murder is punished by death, although it is unclear whether this is simple premeditation or something more. Murder with no aggravating circumstances is punishable by death or life imprisonment. [7]

Other Offenses Resulting in Death.
The death penalty as qisas (retribution) does not apply for unintentional killings, [8] but could apply if the offense is considered hudud (against the rights of God) in some circumstances. Chapter 15 of the Penal Code, on robbery, provides for tazir penalties in cases where hudud penalties cannot be applied. [9] It is a hadd offense to “wage war against God and His Prophet, and strive to cause corruption on the earth…” [10] Historically, this offense was usually understood as “troubling the security of the roads to acquire property by menace.” For the Hanafi school of Sunni Islam, a killing during highway robbery was punished by death as hadd for all brigands involved in the robbery. The necessity of proving intent or cause (respecting the killing) was removed or diminished. [11] This offense may be one that can be committed only during a group robbery. [12] If the offense is prosecuted as tazir, the treatment might be similar. “Murder committed in an act of robbery is not conditioned by intention,” [13] and “[a] person committing murder in an act of robbery shall be sentenced to death.” [14] The Penal Code does not describe whether the offense must be committed as part of a group of robbers, or whether offenders who do not cause the death are punishable by death.

Causing the death of accused individual as a result of torture by official of public services is punished as intentional murder. [15] Kidnapping or abandoning a child under the age of 7 or a person incapable of looking after himself, resulting in death, is punishable as deliberate murder. [16]

Arson against a variety of structures or crowded areas, resulting in death, is punished by death. [17]

Adultery (zina) is punishable by death as hadd in some circumstances where evidentiary requirements are met. [18] This includes married rapists under the Hanafi school. [19] The Penal Code describes tazir penalties, which can be applied if the hadd charge is dropped or if evidence is insufficient to support the hadd charge. The tazir penalty for pederasty, aggravated rape or statutory rape, resulting in death, is death or continued imprisonment. [20]

Terrorism-Related Offenses Resulting in Death.
A person who intentionally destroys buildings [21] or poisons or infects water resources “shall be sentenced to death.” “A person who deliberately endangers the safety of public land, water and air transportation,” [22] causing death, shall be sentenced to death or continued imprisonment in light of the circumstances. [23] A person “shall be sentenced to death” if he commits arson against a variety of structures or crowded areas, if death results (although death need not result). [24]

Terrorism-Related Offenses Not Resulting in Death.
The 1976 Penal Code states, “One who by using force tries to overthrow the Republican Regime of Afghanistan shall be sentenced to death.” [25] The organizer of an armed group that “… by use of force tries to occupy government buildings, institutions or other buildings which are built for the use of public” shall be sentenced to death. [26] A person who takes up the leadership of a group of criminals or takes up such leadership with the intention to loot or to resist against soldiers of the state or security forces shall be sentenced to death. [27] A person who commits arson that results in permanent disability to another person, that is directed against a variety of structures or crowded areas, that is carried out by way of explosives, that involved the incapacitation of fire-fighting equiptments and facilities, or that would “prepare the grounds for commitment of felony or misdemeanor or to destroy its traces” shall be sentenced to death. [28]

Arson Not Resulting in Death.
A person who commits arson against a variety of public utilities or resources, military assets, state buildings, or residential buildings or crowded areas “shall be sentenced to death” if the arson is committed “to prepare the grounds for commitment of felony or misdemeanor or to destroy its traces, or if the person stops fire-fighting equipments and facilities from functioning or if the fire results in permanent disability of persons, or if the fire is caused by the use of explosives.” [29]

Treason.
The 1976 Penal Code states, “A person who aggresses against the life of the President or deprives him of his liberty shall be sentenced to death.” [30] A variety of warlike offenses against the state are punished by death: threatening the authority or territorial integrity of the state, [31] warring against the state or aiding her enemies, [32] or precipitating war upon the state. [33] This is a somewhat expansive category, because propaganda, [34] disrupting the morale of troops or the people, [35] or (intentional) failure to fulfill obligations affecting the defense [36] is considered death-eligible treason. Forcefully disrupting communications during a time of emergency is also punishable by death. [37] Forcefully disrupting communications during a time of emergency is punishable by death. [38]

Espionage.
If a person spies for a foreign state or is employed by it during hostilities, the punishment is death. [39] If, during time of war, a person spies in the interests of a foreign state, intending to inflict harm on “military, political or diplomatic centers of Afghanistan,” or deliberately hides, destroys, takes or forges documents related to the security of the state, the punishment is death. [40] If a person, during war, delivers a defense secret to a foreign state or attempts to acquire information for such purposes, the punishment is death. [41]

Adultery.
Zina offenses carry hudud penalties enabled by Article 1 of the Penal Code, if evidentiary requirements are met. [42] Adultery is “[s]exual intercourse between a man and a woman without legal right or without the semblance of a legal right.” A married person who commits adultery is eligible for the death penalty as hadd (while the unmarried person is eligible for severe lashing as hadd). [43] 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). [44] If evidentiary requirements are not met, adultery has tazir penalties under the 1976 Penal Code, [45] which does not prescribe the death penalty. We do not know whether in practice courts restrict the application of the hadd penalty for adultery, although Taliban-controlled courts and other tribal systems of justice have applied the hadd without any apparent regard to traditional evidentiary requirements. [46]

Consensual Sexual Relations Between Adults of Same Sex.
Zina offenses carry hudud penalties enabled by Article 1 of the Penal Code, if evidentiary requirements are met. [47] The treatment of homosexual sodomy varies between the schools, and Abu Hanafi argued that a tazir penalty (not a hadd penalty) should apply. [48] If Afghanistan’s courts follow Hanafi’s opinion, they cannot apply a penalty for homosexuality that is not specified in the Penal Code, because homosexual conduct carries tazir penalties. At least some judges (both of the state and of the Taliban) in Afghanistan might treat homosexual conduct as carrying hadd penalties, or re-characterize the offense to award a severe penalty, or be, as a practical matter, unconcerned with the legality of punishments they award. [49]

Apostasy.
Irtidad or apostasy offenses carry a hadd penalty that might be, but is not necessarily, enabled by Article 1 of the Penal Code. [50] The treatment of apostasy under the Hanafi school (and other schools) is somewhat unclear, but the Hanafi school did treat apostasy as carrying the death penalty as hadd for male (but not for female) apostates. [51] However, while the Penal Code of 1976 specifically mentions other offenses potentially carrying hadd penalties, it does not enumerate apostasy as one of the offenses potentially carrying a hadd penalty. This weakens any claim that apostasy can legally be punished in Afghanistan. Still, there are occasional high-profile cases in which apostates are threatened with death sentences.

In 2005, conservative courts awarded imprisonment against a journalist accused of apostasy and (reportedly) convicted of blasphemy (a sabb offense) in what may have been a compromise. [52] In 2006, conservative elements in the judiciary pressed forward a death sentence for apostasy, amid concerns that punishment for apostasy was not even constitutional in Afghanistan. [53] Ultimately, courts avoided the death sentence (as anticipated) by explaining that only an insane person would become an apostate from Islam, and an insane person is incapable of apostasy. (The accused promptly fled to Britian.) In 2010, a Christian pastor was imprisoned and threatened with a death sentence for apostasy (after a church service involving baptisms was televised by the media), but was ultimately released after converting to Islam, or at least claiming to. [54] An individual is given a chance to retract his apostasy to avoid execution, [55] although this does not truly remove the penalty for the condition of existing as an “apostate.”

In early 2011 an Afghan man, Said Musa, 45, whose conversion to Christianity and baptism were caught on tape and later broadcast on television, was charged with apostasy and threatened with the death penalty. With the assistance of NGOs and international media attention, he was released and fled the country. [56] Another Afghan man’s case made headlines shortly after in 2011. The second man, 23-year-old Shoaib Assadullah, was also charged with apostasy and threatened with the death penalty following his conversion to Christianity. [57] He was later released and allowed to flee Afghanistan.

Even under the prior rule of the Taliban, there were reportedly no known executions for apostasy. An Islamic studies professor characterized the death penalty for apostasy as primarily an opportunity for radicals to establish themselves as “authentic” Muslims in a bid for power and credibility. [58] One scholar explains that the death penalty for apostasy has become disused, [59] although reasonable people could disagree with that position, since the threat of the death penalty is obviously abused for political purposes [60] and to oppress minority viewpoints or religions. [61] Individuals who are not awarded a judicial death sentence for this offense may choose a quick exit from the country once released from prison. [62]

Other Offenses Not Resulting in Death.
A person who gives false witness, resulting in conviction, is to be sentenced to the same punishment for which the convicted person was sentenced. The law does not indicate whether the execution of the perjurer is restricted to cases where the execution of an innocent person is actually carried out. [63]

Comments.
We did not find the military laws. Some offenses in Chapter 1 of the 1976 Penal Code related to the external security of the state could be military offenses, and certain military offenses such as insubordination were not death-eligible.

Articles 148-149 of the Penal Code allow courts to enhance a sentence of continued imprisonment to the death penalty if it finds one of five statutory aggravating factors. [64] We did not enumerate offenses punishable by continued imprisonment as death-eligible, largely because it was unclear that the statutory aggravating factors would apply for those offenses, or because the aggravating factor was already included as an element of the offense. Given the past and present situation in Afghanistan, it is unlikely that anyone can offer a reliable opinion on how these articles would be interpreted.

A review of sentences passed at the Supreme Court’s website (http://www.supremecourt.gov.af/) shows that courts may usually restrain use of the death penalty to offenses resulting in death. However, it should be taken into consideration that only a select number of court decisions from 2009 are published and thus may not be an accurate portrayal of the court’s record of decision-making in regards to the death penalty.

There is some uncertainty over the legal and practical scope of the death penalty in Afghanistan, particularly when hudud penalties may be in question. [65] The U.S. Department of State reported that in 2007 and again in 2011 Afghanistan courts could apply the death penalty for apostasy or blasphemy, after giving the accused a 3-day period in which to recant, [66] and the 1976 Penal Code provides that Hanafi jurisprudence governs Qisas and hudud crimes. [67] The State Department’s report may be inaccurate—in practice, blasphemy is not necessarily punished by death. [68]

In any case, the new Constitution provides: “If there is no provision in the Constitution or other laws about a case, the courts shall, in pursuance of Hanafi jurisprudence, and, within the limits set by this Constitution, rule in a way that attains justice in the best manner.” [69] Additionally, the Constitution provides: “The state shall observe the United Nations Charter, inter-state agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights.” [70] Finally, the Constitution provides: “No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.” [71]

At least one individual has suggested that this creates a conflict in the application of the criminal law, both prohibiting and requiring the application of certain penalties under Hanafi jurisprudence. [72] A more rigorous legal assessment is that general principles of Islamic law and international law function to limit legislation that might infringe on fundamental human rights and liberties. Hanafi jurisprudence on the criminal law (or in any other area—the criminal law is but a small fraction of law) can operate in the presence of a lacuna (gap in the law), or where it is specifically enabled by the law and consistent with the Constitution. But a fair reading of the Constitution does not establish the application of some specific version of Hanafi criminal law as a constitutional imperative.

The 1976 Penal Code enables the application of Hanafi jurisprudence for offenses carrying hudud and qisas penalties. Regarding the death penalty, Hanafi jurisprudence is explicitly enabled only in the cases of murder, hirabah and adultery. As discussed under each specific crime, it is unlikely that, in practice, Article 1 can be used to legally apply the death penalty for offenses other than murder or hirabah resulting in death. Our reading of the Constitution is consistent with this.

We believe that news reports and the opinions of experts that homosexual acts, apostasy and blasphemy may be death-eligible in Afghanistan [73] must be viewed in the light that the Constitution (or the law) may prohibit the application of the death penalty for such “offenses.” As discussed, individuals have not been executed for apostasy (and M. Cherif Bassiouni, a former U.N. exert on human rights in Afghanistan, argues that execution for apostasy is inconsistent with the Constitution). [74] There have been reliable reports that at least one couple has been stoned to death for eloping, and that another (divorced) woman was beaten and shot to death as a penalty for adultery. It appears that these executions were carried out pursuant to the dictates of courts in areas controlled by the Taliban. [75] The execution of a mother and daughter as punishment for adultery [76] and the execution of a 22-year-old woman without a trial more recently in 2012 also were attributed to the Taliban. [77] In our view, they should therefore be characterized as extra-judicial executions, and do not represent the application of the law by legitimate courts in Afghanistan. In any case, a review of Shariah law shows that the application of the death penalty as hadd for these offenses was probably illegal under Shariah law.

Amnesty International indicates that the death penalty for rape and kidnapping could apply more broadly than for the aggravating circumstances provided for under law; [78] this might be an area in which Afghanistan’s courts are not adjudicating consistently with the law or Constitution.

We do not know whether, in practice, Afghanistan’s courts apply the death penalty for some offenses in contravention of the Afghanistan Constitution. Definition of the legal scope of the death penalty is difficult in an environment described in 2005 as one where “judges and others willing to uphold the rule of law are often asked to act against factional commanders and other empowered groups without being provided with adequate security.” [79] Also, what judges perceive as the “rule of law” may differ. Over the past few years, the government and judiciary positions have been somewhat opposed, with a number of conservative jurists opposing the reformist government. [80]

The position of Afghanistan’s government is that it does not permit the application of punishments that are inconsistent with its Constitution, but this issue has been contentious among some clerics, who have essentially called not for the Shariah but rather for brutality in administration of the criminal law, and who have suggested that a failure to adopt their version of Shariah punishments is “hindering the peace process.” [81]

Does the country have a mandatory death penalty?

Yes. However, we do not know the extent of the mandatory death penalty. Under Article 1 of the 1976 Penal Code qisas penalties apply under the Hanafi school of Sunni Islam. The death penalty applies as qisas for murder where the conditions for applying that penalty are met. [82] The victim’s kin has the right to forgive the offender or accept a payment of diyyah (blood money compensation), [83] but this is still a mandatory death penalty because the judiciary cannot award a discretionary penalty unless the victim’s family permits it. Under the Penal Code, the Court can assign a discretionary penalty if conditions for applying the qisas penalty do not exist (and this would include the acceptance of diyyah, vitiating the qisas penalty). [84] In any case where the qisas penalty cannot apply, the tazir (public authority) punishment for most aggravated murders “shall be…death.” [85] Although the court could legally exercise discretion in any case where qisas does not apply, [86] we do not know whether courts exercise discretion under any circumstances other than forgiveness or acceptance of diyyah by the victim’s family.

Also under Article 1 of the Penal Code, hudud penalties apply for some offenses. The Code addresses the application of hudud penalties for hirabah (piracy or unlawful warfare), [87] zina (offenses against sexual mores) [88] and larceny. [89] Although the death penalty for recidivist theft or house-breaking (similar to larceny in the Afghanistan Penal Code) is considered a tazir penalty under the Hanafi school [90] (and is therefore not enabled by Article 1), the penalties for hirabah (resulting in death) [91] and zina (by a married person and, traditionally, substantiated by four eyewitnesses or a free confession) [92] are enabled, and do include the mandatory death penalty. Traditionally, the presumption is against the application of hudud penalties, [93] but we do not have evidence that suggests Afghanistan’s courts confine the application of hudud penalties to extreme cases. The Penal Code states that a person committing murder during hirabah “shall be sentenced to death,” [94] and we do not know whether courts follow Article 145 [95] to deliver discretionary penalties when the hadd penalty cannot apply.

We do not know whether, in practice, this or other rules apply that would render independent judicial discretion non-existent by international standards. The Constitution requires that law be applied consistently with the Constitution, international obligations and standards, and Shariah principles. The Shariah law (as opposed to general Shariah principles) applies where there is a lacuna (gap in the law). [96] Because the international position is clear—the mandatory death penalty violates the right to non-arbitrariness—the protection of the right to life under Afghanistan’s Constitution and international treaties incorporated by that Constitution should require the broad application of Article 145.

Please note that the courts may actually restrain the mandatory death penalty, to the extent that it exists, to offenses resulting in death—see sentences pronounced by courts, at the Supreme Court’s website (http://www.supremecourt.gov.af/). At the very least, these sentencing decisions suggest that the Article 145 is applied broadly when no hadd or qisas penalty is in question, and that sexual offenses are prosecuted as tazir, not as hadd offenses, and thus carry discretionary penalties.

For Which Offenses, If Any, Is a Mandatory Death Sentence Imposed?

Murder. [97]
Murder can carry the mandatory death penalty as qisas.

Other Offenses Resulting in Death. [98]
Hirabah resulting in death may carry the mandatory death penalty as hadd (or as qisas, depending on the evidence).

Comments.
Zina [99] offenses (adultery and rape) could carry the mandatory death penalty; however, courts applying Afghanistan’s law and Shari’a law strictly could rarely apply the death penalty as hadd for zina offenses, and we found no proof that they do. There is no ta’zir death penalty for these offenses.

Crimes For Which Individuals Have Been Executed Since January 2008:

Aggravated Murder.
Three men convicted of murdering an intelligence officer were hanged in 2008. [100]

Two men convicted of murdering 40 people in a bank siege in Jalalabad were hanged in 2011. [101]

At least one person convicted of murdering security officers was hanged in 2012. At least one person convicted of the rape and murder of women and children was hanged in 2012. Afghanistan executed as many as eight prisoners in 2012 for aggravated murder, including the two specific crimes referenced. [102]

Murder.
A man convicted of murdering his relatives was executed in 2008. [103] At least one other man convicted of murder was also executed in 2008. [104]

Treason.
Three men convicted of murdering an intelligence officer were hanged in 2008. [105]

Kidnapping Not Resulting in Death.
At least one man convicted of kidnapping was executed in 2008. [106]

Terrorism-Related Offenses Resulting in Death.
Six Taliban members were executed in November 2012 for terrorist acts. [107] Three of the six men were convicted of plotting suicide attacks that killed eight people in Kabul. Two were convicted of murdering two Afghan U.N. employees. One man was convicted of killing three provincial education officials and eight border police personnel. [108]

Categories of Offenders Excluded From the Death Penalty:

Individuals Below Age 18 At Time of Crime.
Children (individuals under 18) cannot be sentenced to death or life imprisonment. [109] Additionally, the execution of a person for a crime committed while under the age of 18 would be inconsistent with Afghanistan’s Constitution (which by its terms under Article 7 requires that the state adhere to international treaties to which Afghanistan is a party, [110] including the prohibition against executions of juvenile offenders under Article 6 of the International Covenant on Civil and Political Rights). There have been no recent reported executions of juveniles in Afghanistan.

Pregnant Women.
The beginning of a pregnant woman’s prison sentence is deferred until four months after delivery, if she is at least six months pregnant. [111] While we did not find a specific law about whether pregnant women can be executed, this practice would be inconsistent with Article 7 Afghanistan’s Constitution (which would recognize the prohibition of the practice under Article 6 of the International Covenant on Civil and Political Rights.) [112]

Mentally Retarded.
Individuals have no penal responsibility for offenses committed while lacking in senses or intelligence due to insanity or mental disease. [113] A person who commits a crime while suffering from a defect in senses or intelligence may be criminally liable but is punished less severely than is a person of normal senses or intelligence. [114]

Mentally Ill.
Individuals have no penal responsibility for offenses committed while lacking in senses or intelligence due to insanity or mental disease. [115] A person who commits a crime while suffering from a defect in senses or intelligence is criminally liable but is punished less severely than is a person of normal senses or intelligence. [116] Individuals might be excluded from execution while mentally ill. [117]

References

[1] Afghanistan Penal Code 1976, arts. 1, 394.
[2] Mohamed S. El-Awa, Punishment in Islamic Law: A Comparative Study, p. 75, American Trust Publications, 1982. Note that for the Hanafi school, the death penalty could be awarded as ta’zir for a murder committed without use of means particularly likely to result in death. Id. at p. 109.
[3] Afghanistan Penal Code 1976, art. 395.
[4] Afghanistan Penal Code 1976, art. 396.
[5] Afghanistan Penal Code 1976, arts. 1, 394.
[6] Mohamed S. El-Awa, Punishment in Islamic Law: A Comparative Study, p. 75, American Trust Publications, 1982. Note that for the Hanafi school, the death penalty could be awarded as ta’zir for a murder committed without use of means particularly likely to result in death. Id. at p. 109.
[7] Afghanistan Penal Code 1976, arts. 395(1), 396(3).
[8] M. Cherif Bassiouni, ed., The Islamic Criminal Justice System, p. 203-204, Oceana Publications, Inc., 1982.
[9] Afghanistan Penal Code 1976, arts. 1, 447.
[10] Khaled Abou El Fadl, Rebellion and Violence in Islamic Law, p 47, Cambridge University Press, 2001.
[11] Tahir Mahmood, et. al., Criminal Law in Islam and the Muslim World: A Comparative Perspective, p. 75, 77-79, Institute of Objective Studies, 1st. ed., 1996.
[12] Tahir Mahmood, et. al., Criminal Law in Islam and the Muslim World: A Comparative Perspective, p. 77, Institute of Objective Studies, 1st. ed., 1996.
[13] Afghanistan Penal Code 1976, art. 448.
[14] Afghanistan Penal Code 1976, art. 449.
[15] Afghanistan Penal Code 1976, art. 275(2).
[16] Afghanistan Penal Code 1976, arts. 418, 419.
[17] Afghanistan Penal Code 1976, art. 360.
[18] Afghanistan Penal Code 1976, arts. 1, 426.
[19] Mohamed S. El-Awa, Punishment in Islamic Law: A Comparative Study, p. 14, American Trust Publications, 1982; Tahir Mahmood, et. al., Criminal Law in Islam and the Muslim World: A Comparative Perspective, p. 68, Institute of Objective Studies, 1st. ed., 1996. But see Dr. Nagaty Sanad, The Theory of Crime and Criminal Responsibility in Islamic Law: Shari’a, p. 64, Office of International Criminal Justice, University of Illinois at Chicago, 1991.
[20] Afghanistan Penal Code 1976, art. 427-428.
[21] Afghanistan Penal Code 1976, art. 217(3).
[22] Afghanistan Penal Code 1976, art. 325.
[23] Afghanistan Penal Code 1976, art. 326.
[24] Afghanistan Penal Code 1976, art. 360.
[25] Afghanistan Penal Code 1976, art. 204.
[26] Afghanistan Penal Code 1976, art. 216.
[27] Afghanistan Penal Code 1976, art. 213(1),(2).
[28] Afghanistan Penal Code 1976, art. 360.
[29] Afghanistan Penal Code 1976, art. 360.
[30] Afghanistan Penal Code 1976, art. 206.
[31] Afghanistan Penal Code 1976, arts. 173-174
[32] Afghanistan Penal Code 1976, art. 175-182, 184, 188, 192.
[33] Afghanistan Penal Code 1976, art. 196.
[34] Afghanistan Penal Code 1976, art. 184.
[35] Afghanistan Penal Code 1976, art. 182.
[36] Afghanistan Penal Code 1976, art. 188.
[37] Afghanistan Penal Code 1976, art. 331.
[38] Afghanistan Penal Code 1976, art. 331.
[39] Afghanistan Penal Code 1976, arts. 176.
[40] Afghanistan Penal Code 1976, arts. 194.
[41] Afghanistan Penal Code 1976, arts. 178(1), 179(1).
[42] Afghanistan Penal Code 1976, arts. 1, 426.
[43] Mohamed S. El-Awa, Punishment in Islamic Law: A Comparative Study, p. 14, American Trust Publications, 1982; Tahir Mahmood, et. al., Criminal Law in Islam and the Muslim World: A Comparative Perspective, p. 68, Institute of Objective Studies, 1st. ed., 1996. But see Dr. Nagaty Sanad, The Theory of Crime and Criminal Responsibility in Islamic Law: Shari’a, p. 64, Office of International Criminal Justice, University of Illinois at Chicago, 1991.
[44] The requirements of evidence for application of hudud penalties are particularly extreme for offenses such as adultery, excluding any evidence except eyewitness testimony or the confession of the accused in most Sunni schools. Freely given confession, rather than eyewitness, has been the practical mode of proof for the offense of zina, and an offender may withdraw confession at any time when facing a hadd penalty (although this might not affect liability for compensation). Gerald E. Lampe, ed., Justice and Human Rights in Islamic Law, p. 82-83, Intl. Law Inst., 1997; S. Mahmassani, Falsafat Al-Tashri Fi Al-Islam, p. 177, 184-185, translated by Farhat J. Ziadeh, E.J. Brill, 1961; Abdel et. al. at p. 38, 47; Sanad at p. 99, 104-105; M. Cherif Bassiouni, ed., The Islamic Criminal Justice System, p. 26, 109-122, Oceana Publications, Inc., 1982; Tahir Mahmood, et. al., Criminal Law in Islam and the Muslim World: A Comparative Perspective, p. 63-64, 246-286, Institute of Objective Studies, 1st. ed., 1996; Muhammad Abdel Haleem, Adel Omar Sherif & Kate Daniels, eds., Criminal Justice in Islam: Judicial Procedure in the Shari’a, p. 24-26, 38, 45-47, I.B. Tauris & Co. Ltd., 2003.
[45] Afghanistan Penal Code 1976, arts. 1, 426.
[46] Matthias Gebauer, Execution Reveals Weakness of Afghan Authorities, Spiegel Online, http://www.spiegel.de/international/world/taliban-execution-highlights-helpless-afghan-authorities-a-844461.html, July 16, 2012. Nick Paton Walsh, Execution Video Shows Afghan Tribal Justice Still Enforced, CNN, http://www.cnn.com/2011/10/08/world/asia/afghanistan-tribal-justice/index.html, Oct. 11, 2011. Rod Nordland, In Bold Display, Taliban Orders Stoning Deaths, The New York Times, http://www.nytimes.com/2010/08/17/world/asia/17stoning.html, Aug. 16, 2010. It should be noted that under the Hanafi school, a mistake as to the validity of a marriage might not, in some cases, have been a defense against the charge of adultery. However, it is unclear that the Taliban-controlled tribunal did anything more than declare a marriage invalid and then execute the newlywed “offenders” in the one case, or whether these militant courts observed any evidentiary requirements in any case.
[47] Afghanistan Penal Code 1976, arts. 1, 426.
[48] Tahir Mahmood, et. al., Criminal Law in Islam and the Muslim World: A Comparative Perspective, p. 67-68, Institute of Objective Studies, 1st. ed., 1996; Mohamed S. El-Awa, Punishment in Islamic Law: A Comparative Study, p. 109, American Trust Publications, 1982. Scholars adhering to the accepted definition of adultery as “[s]exual intercourse between a man and a woman without legal right or without the semblance of a legal right,” El-Awa at p. 14, state that any sexual contact other than penetration of the male organ into the female organ is not adultery and should not be punished as hadd. Dr. Nagaty Sanad, The Theory of Crime and Criminal Responsibility in Islamic Law: Shari’a, p. 38-44, Office of International Criminal Justice, University of Illinois at Chicago, 1991. This may be related to dispute over whether a later-revealed piece of legislation (Surah XXIV, abrogating earlier rules) fully addressed the issue of homosexual acts. El-Awa at p. 14-15.
[49] Washington Blade, Harsh Penalties Remain for Gays in Afghanistan, http://www.glapn.org/sodomylaws/world/afghanistan/afnews010.htm, April 19, 2002. Maura Reynolds, Kandahar’s Lightly Veiled Homosexual Habits, L.A. Times, http://articles.latimes.com/2002/apr/03/news/mn-35991, April, 3, 2002.
[50] Afghanistan Penal Code 1976, arts. 1, 426.
[51] The Maliki and Shafi’I schools applied the death penalty as hadd, while the Hanafi school of Sunni Islam and the Shi’a Imamiyah applied the death penalty as hadd for men, while imprisoning apostate women. The Hanbali school did not acknowledge the death penalty as a hadd penalty, but applied it as ta’zir. Mohamed S. El-Awa, Punishment in Islamic Law: A Comparative Study, p. 49-64, American Trust Publications, 1982; Tahir Mahmood, et. al., Criminal Law in Islam and the Muslim World: A Comparative Perspective, p. 80-81, Institute of Objective Studies, 1st. ed., 1996; Dr. Abdur-Rahmaanibn 'AaydAal-'Aayd, Rights of Individuals Regarding Crimes that Require Hudood Punishments, p. 84-85, Al-Adl Journal Vol. 40, http://www.moj.gov.sa/adl/ENG/Default.aspx, accessed Aug. 20, 2010.
[52] Abdul Waheed Wafa & Carlotta Gall, Afghan Court Gives Editor 2-Year Term for Blasphemy, http://www.nytimes.com/2005/10/24/international/asia/24afghan.html, Oct. 24, 2005.
[53] Amin Tarzi, Afghanistan: Apostasy case reveals constitutional contradictions, EurasiaNet, http://www.unhcr.org/refworld/docid/46f2581a17.html, Apr. 22, 2006.
[54] AsiaNews.it, Christian in Prison for Apostasy Secretly Released in Kabul, http://www.asianews.it/news-en/Christian-in-prison-for-apostasy-secretly-released-in-Kabul-20877.html, Feb. 25, 2011.
[55] The Maliki and Shafi’I schools applied the death penalty as hadd, while the Hanafi school of Sunni Islam and the Shi’a Imamiyah applied the death penalty as hadd for men, while imprisoning apostate women. The Hanbali school did not acknowledge the death penalty as a hadd penalty, but applied it as ta’zir. Mohamed S. El-Awa, Punishment in Islamic Law: A Comparative Study, p. 49-64, American Trust Publications, 1982; Tahir Mahmood, et. al., Criminal Law in Islam and the Muslim World: A Comparative Perspective, p. 80-81, Institute of Objective Studies, 1st. ed., 1996; Dr. Abdur-Rahmaanibn 'AaydAal-'Aayd, Rights of Individuals Regarding Crimes that Require Hudood Punishments, p. 84-85, Al-Adl Journal Vol. 40.http://www.islampolicy.com/2010/12/rights-of-individuals-regarding-crimes.html, last accessed Oct. 31, 2012.
[56] Ethan Cole, Global Evangelical Body: Execution Trial of Afghan Convert Illegal,Christian Post, http://www.christianpost.com/news/global-evangelical-body-execution-trial-of-afghan-convert-illegal-48960/, Feb. 13, 2011. Kristin Butler, Said Musa Released from Afghan Prison, Crosswalk.com, Christian News Articles,http://www.religiontoday.com/articles/said-musa-released-from-afghan-prison.html, Feb. 25, 2011.
[57] Wesley Ernst, Second Afghan Convert Faces Death Penalty under Apostasy Law, Christian Post, http://www.christianpost.com/news/second-afghan-convert-faces-death-penalty-under-apostasy-law-49632/, March 29, 2011.
[58] Andrea Elliot, In Kabul, a Test for Shariah, http://www.nytimes.com/2006/03/26/weekinreview/26elliott.html, Mar. 26, 2006
[59] Robert Postawko, Towards an Islamic Critique of Capital Punishment, p. 290-293, UCLA Journal of Islamic and Near Eastern Law, Vol. 1, p. 269, 2002.
[60] Andrea Elliot, In Kabul, a Test for Shariah, http://www.nytimes.com/2006/03/26/weekinreview/26elliott.html, Mar. 26, 2006
[61] AsiaNews.it, Christian in Prison for Apostasy Secretly Released in Kabul, http://www.asianews.it/news-en/Christian-in-prison-for-apostasy-secretly-released-in-Kabul-20877.html, Feb. 25, 2011.
[62] AsiaNews.it, Christian in Prison for Apostasy Secretly Released in Kabul, http://www.asianews.it/news-en/Christian-in-prison-for-apostasy-secretly-released-in-Kabul-20877.html, Feb. 25, 2011.
[63] Afghanistan Penal Code 1976, art. 383(2).
[64] Afghanistan Penal Code 1976, art. 148, 149.
[65] Cherif Bassiouni, Crimes and the Criminal Process, p. 277, Arab Law Quarterly, Vol. 12, No. 3, 1997; Cherif Bassiouni, Leaving Islam is Not a Capital Crime, Chicago Tribune, Apr. 2, 2006.
[66] U.S. Dept. of State, 2007 International Religious Freedom Report: Afghanistan, http://www.state.gov/g/drl/rls/irf/2007/90225.htm, last accessed Jan. 20, 2011. U.S. Dept. of State, 2011 International Religious Freedom Report: Afghanistan, http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm?dlid=192917, last accessed Oct. 31, 2012.
[67] Afghanistan Penal Code, art. 1, Oct. 7, 1976.
[68] Abdul Waheed Wafa & Carlotta Gall, Afghan Court Gives Editor 2-Year Term for Blasphemy, http://www.nytimes.com/2005/10/24/international/asia/24afghan.html, Oct. 24, 2005.
[69] The Constitution of Afghanistan, art. 130, Jan. 3, 2004.
[70] The Constitution of Afghanistan, art. 7, Jan. 3, 2004.
[71] The Constitution of Afghanistan, art. 3, Jan. 3, 2004.
[72] Amin Tarzi, Afghanistan: Apostasy case reveals constitutional contradictions, EurasiaNet, http://www.unhcr.org/refworld/docid/46f2581a17.html, Apr. 22, 2006.
[73] Ensemble Contre la Peine de Mort, Report: Third World Congress Against the Death Penalty, p. 31-32, 75-76, Feb. 1-3, 2007.Afghan on trial for Christianity, BBC News, http://news.bbc.co.uk/2/hi/south_asia/4823874.stm, Mar. 20, 2006. Afghan on trial for Christianity, BBC News, http://news.bbc.co.uk/2/hi/south_asia/4823874.stm, Mar. 20, 2006.
[74] Cherif Bassiouni, Leaving Islam is Not a Capital Crime, Chicago Tribune, Apr. 2, 2006.
[75] Rod Nordland, In Bold Display, Taliban Orders Stoning Deaths, The New York Times, http://www.nytimes.com/2010/08/17/world/asia/17stoning.html, Aug. 16, 2010.
[76] BBC, Afghanistan Mother and Daughter Stoned and Shot Dead, http://www.bbc.co.uk/news/world-asia-15688354, Nov. 11, 2011.
[77] Matthias Gebauer, Execution Reveals Weakness of Afghan Authorities, Spiegel Online, http://www.spiegel.de/international/world/taliban-execution-highlights-helpless-afghan-authorities-a-844461.html, July 16, 2012. Ron Synovitz, Afghans Say Extrajudicial Execution was Un-Islamic, http://www.rferl.org/content/afghans-say-extrajudicial-execution-was-unislamic/24640831.html, July 10, 2012.
[78] Amnesty Intl., Afghanistan: Amnesty International Submission to the UN Universal Periodic Review, The death penalty and unfair trials, ASA 11/014/2008, Nov. 3, 2008.
[79] Cherif Bassiouni, Report of The Independent Expert on the Situation of Human Rights in Afghanistan, para. 27, U.N. Doc. E/CN.4/2005/122, Mar. 11, 2005.
[80] EurasiaNet, Afghanistan: Apostasy case reveals constitutional contradictions, http://www.unhcr.org/refworld/docid/46f2581a17.html, Apr. 22, 2006.
[81] Rod Nordland, In Bold Display, Taliban Orders Stoning Deaths, The New York Times, http://www.nytimes.com/2010/08/17/world/asia/17stoning.html, Aug. 16, 2010.
[82] Afghanistan Penal Code 1976, art. 394.
[83] Tahir Mahmood, et. al., Criminal Law in Islam and the Muslim World: A Comparative Perspective, p. 85-88, Institute of Objective Studies, 1st. ed., 1996; M. Cherif Bassiouni, ed., The Islamic Criminal Justice System, p. 203-209, Oceana Publications, Inc., 1982; Mohamed S. El-Awa, Punishment in Islamic Law: A Comparative Study, p. 69-85, American Trust Publications, 1982. See also Afghanistan Penal Code 1976, art. 1.
[84] Afghanistan Penal Code 1976, art. 145.
[85] Afghanistan Penal Code 1976, art. 395.
[86] Afghanistan Penal Code 1976, art. 145.
[87] Afghanistan Penal Code 1976, arts. 1, 447.
[88] Afghanistan Penal Code 1976, arts. 1, 426.
[89] Afghanistan Penal Code 1976, arts. 1, 454.
[90] Mohamed S. El-Awa, Punishment in Islamic Law: A Comparative Study, p. 109, American Trust Publications, 1982
[91] Khaled Abou El Fadl, Rebellion and Violence in Islamic Law, p 47, Cambridge University Press, 2001.
[92] Gerald E. Lampe, ed., Justice and Human Rights in Islamic Law, p. 82-83, Intl. Law Inst., 1997; S. Mahmassani, Falsafat Al-Tashri Fi Al-Islam, p. 177, 184-185, translated by Farhat J. Ziadeh, E.J. Brill, 1961; Dr. Nagaty Sanad, The Theory of Crime and Criminal Responsibility in Islamic Law: Shari’a, p. 64, 99, 104-105, Office of International Criminal Justice, University of Illinois at Chicago, 1991; M. Cherif Bassiouni, ed., The Islamic Criminal Justice System, p. 26, 109-122, Oceana Publications, Inc., 1982; Tahir Mahmood, et. al., Criminal Law in Islam and the Muslim World: A Comparative Perspective, p. 63-64, Institute of Objective Studies, 1st. ed., 1996; Muhammad Abdel Haleem, Adel Omar Sherif & Kate Daniels, eds., Criminal Justice in Islam: Judicial Procedure in the Shari’a, p. 24-26, 38, 45-47, 72, 111-129, I.B. Tauris & Co. Ltd., 2003; Mohamed S. El-Awa, Punishment in Islamic Law: A Comparative Study, p. 124-131, American Trust Publications, 1982.
[93] S. Mahmassani, Falsafat Al-Tashri Fi Al-Islam, p. 168-200, translated by Farhat J. Ziadeh, E.J. Brill, 1961.
[94] Afghanistan Penal Code 1976, arts. 1, 447-449.
[95] Afghanistan Penal Code 1976, art. 145.
[96] The Constitution of Afghanistan, art. 3, 7, 130, Jan. 3, 2004.
[97] Afghanistan Penal Code 1976, art. 394.
[98] Afghanistan Penal Code 1976, arts. 1, 447.
[99] Afghanistan Penal Code 1976, arts. 1, 426.
[100] Ben Farmer, Afghanistan Resumes Executions, Telegraph, http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/3446043/Afghanistan-resumes-executions.html, Nov. 12, 2008.
[101] Amnesty Intl., Death Sentences and Executions in 2011, ACT 50/001/2012, Mar. 27, 2012. Hashim Shukoor, 2 Killers in Afghan Bank Siege are Hanged in Kabul, http://www.mcclatchydc.com/2011/06/20/116140/2-killers-in-afghan-bank-siege.html, June 20, 2011.
[102] AFP, Afghanistan Executes Eight Prisoners: Officials, Ahram Online, http://english.ahram.org.eg/News/58699.aspx, Nov. 20, 2012.
[103] Ben Farmer, Afghanistan Resumes Executions, Telegraph, http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/3446043/Afghanistan-resumes-executions.html, Nov. 12, 2008.
[104] Ben Farmer, Afghanistan Resumes Executions, Telegraph, http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/3446043/Afghanistan-resumes-executions.html, Nov. 12, 2008.
[105] Ben Farmer, Afghanistan Resumes Executions, Telegraph, http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/3446043/Afghanistan-resumes-executions.html, Nov. 12, 2008.
[106] Ben Farmer, Afghanistan Resumes Executions, Telegraph, http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/3446043/Afghanistan-resumes-executions.html, Nov. 12, 2008.
[107] Alissa Rubin, Afghanistan Executes Six in Gesture on Taliban, New York Times, http://www.nytimes.com/2012/11/22/world/asia/afghan-suicide-bomber-kills-3-near-us-embassy.html, Nov. 21, 2012.
[108] AFP, Six ‘Terrorists’ Hanged in Mass Afghan Executions, Dawn, http://dawn.com/2012/11/22/six-terrorists-hanged-in-mass-afghan-executions/, Nov. 22, 2012.
[109] Afghanistan Juvenile Code, art. 39, Official Gazette No. 846, Mar. 23, 2005.
[110] The Constitution of Islamic Republic of Afghanistan, arts, arts. 7, 130, Jan 3, 2004. Status of Ratification of ICCPR, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed Oct. 22, 2012.
[111] Afghanistan Interim Criminal Procedure Code, art. 89(2), Official Gazette No. 820, Feb. 25, 2004.
[112] The Constitution of Islamic Republic of Afghanistan, arts, 7, Jan 3, 2004.
[113] Afghanistan Penal Code 1976, art. 67(1).
[114] Afghanistan Penal Code 1976, art. 67(2).
[115] Afghanistan Penal Code 1976, art. 67(1).
[116] Afghanistan Penal Code 1976, art. 67(2).
[117] Afghanistan Interim Criminal Procedure Code, art. 89(3), Official Gazette No. 820, Feb. 25, 2004.

International Commitments

ICCPR

Party?

Yes. [1]

Date of Accession

Jan. 24, 1983. [2]

Signed?

No. [3]

Date of Signature

Not Applicable.

First Optional Protocol to the ICCPR, Recognizing Jurisdiction of the Human Rights Committee

Party?

No. [4]

Date of Accession

Not Applicable.

Signed?

No. [5]

Date of Signature

Not Applicable.

Second Optional Protocol to the ICCPR, Toward the Abolition of the Death Penalty

Party?

No. [6]

Date of Accession

Not Applicable.

Signed?

No. [7]

Date of Signature

Not Applicable.

American Convention on Human Rights

Party?

Not Applicable.

Date of Accession

Signed?

Not Applicable.

Date of Signature

Death Penalty Protocol to the ACHR

Party?

Not Applicable.

Date of Accession

Signed?

Not Applicable.

Date of Signature

African Charter on Human and Peoples' Rights (ACHPR)

Party?

Not Applicable.

Date of Accession

Signed?

Not Applicable.

Date of Signature

Protocol to the ACHPR on the Rights of Women in Africa

Party?

Not Applicable.

Date of Accession

Signed?

Not Applicable.

Date of Signature

African Charter on the Rights and Welfare of the Child

Party?

Not Applicable.

Date of Accession

Signed?

Not Applicable.

Date of Signature

Arab Charter on Human Rights

Party?

Not Applicable.

Date of Accession

Signed?

Not Applicable.

Date of Signature

2012 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [8]

Vote

Against. [9]

Signed the Note Verbale of Dissociation

Yes. [10]

2010 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [11]

Vote

Against. [12]

Signed the Note Verbale of Dissociation

Yes. [13]

2008 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [14]

Vote

Against. [15]

Signed the Note Verbale of Dissociation

Yes. [16]

2007 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [17]

Vote

Against. [18]

Signed the Note Verbale of Dissociation

Yes. [19]

References

[1] Status of Ratification of ICCPR, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed Oct. 22, 2012.
[2] Status of Ratification of ICCPR, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed Oct. 22, 2012.
[3] Status of Ratification of ICCPR, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed Oct. 22, 2012.
[4] Status of Ratification of the Optional Protocol to ICCPR, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4&lang=en, last accessed Oct. 22, 2012.
[5] Status of Ratification of the Optional Protocol to ICCPR, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4&lang=en, last accessed Oct. 22, 2012.
[6] Status of Ratification of the Second Optional Protocol to the ICCPR, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4&lang=en, last accessed Oct. 22, 2012.
[7] Status of Ratification of the Second Optional Protocol to the ICCPR, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4&lang=en, last accessed Oct. 22, 2012.
[8] U.N.G.A., 67th Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, paras. 95-96, U.N. Doc. A/67/457/Add.2, Dec. 8, 2012.
[9] U.N.G.A., 67th Session, 60th Plenary Meeting, pp. 16-17, U.N. Doc. A/67/PV.60, Dec. 20, 2012.
[10] U.N.G.A., 67th Session, Note Verbale dated 16 April 2013, U.N. Doc. A/67/841, Apr. 23, 2013.
[11] U.N.G.A., 65th Session, Promotion and Protection of Human Rights: human rights questions, includng alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, p. 5, U.N. Doc. A/65/456/Add.2, Dec. 8, 2010.
[12] U.N.G.A., 65th Session, 71st Plenary Meeting, pp. 18-19, U.N. Doc. A/65/PV.71, Dec. 21, 2010.
[13] U.N.G.A., 65th Session, Note Verbale dated 11 March 2011, U.N. Doc. A/65/779, Mar. 11, 2011.
[14] U.N.G.A., 63rd session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, U.N. Doc. A/63/430/Add.2, Dec. 4, 2008.
[15] U.N.G.A., 63rd Session, 70th Plenary Meeting, pp. 16- 17, U.N. Doc. A/63/PV.70, Dec. 18, 2008.
[16] U.N.G.A., 63rd Session, Note Verbale dated 10 February 2009, U.N. Doc. A/63/716, Feb. 12, 2009.
[17] U.N.G.A., 62nd Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, U.N. Doc. A/62/439/Add.2, Dec. 5, 2007.
[18] U.N.G.A., 62nd Session, 76th Plenary Meeting, pp. 16- 17, U.N. Doc. A/62/PV.76, Dec. 18, 2007.
[19] U.N.G.A., 62nd Session, Note Verbale dated 11 January 2008, U.N. Doc. A/62/658, Feb. 2, 2008.

Death Penalty In Law

Does the country’s constitution make reference to capital punishment?

Yes. Article 23 states that life is “the natural right of human beings” and that “no one shall be deprived of [life] except by legal provision,” which implies that capital punishment is constitutional when executed pursuant to the law. Article 129 of the Constitution requires presidential approval of a death sentence handed down by the courts before the actual execution can take place. [1]

Does the country’s constitution make reference to international law?

The Constitution requires that the state adhere to the United Nations Charter, international treaties Afghanistan has joined, and the Universal Declaration of Human Rights, suggesting that international human rights treaties should be controlling law in Afghanistan. [2]

Have there been any significant changes in the application of the death penalty over the last several years?

Application of the death penalty has been a contentious issue, and the situation in Afghanistan is murky. After the overthrow of the Taliban in 2001, there were no official executions until 2004, when Abdullah Shah was executed by firing squad. [3] In 2004, Afghanistan adopted a new Constitution, which made all application of the death penalty conditional on Presidential approval and instituted a number of human rights protections. [4] Between 2004 and 2007, there were no executions. [5] In 2007, 15 people were executed; they were shot as they attempted to flee execution (or attempted to flee after being shot). [6] Seventeen people were executed in 2008; [7] after the 2007 shooting debacle, executions have apparently been carried out by hanging. [8] Amid international criticism of the lack of fair trial protections in Afghanistan, [9] the President had declined to approve any executions, [10] although UN reports indicate that individuals—possibly including the innocent—continue to be sentenced to death in unfair trials. [11] In 2011, for the first time since 2008, Afghanistan executed two men convicted of murdering 40 people during a bank siege in Jalalabad. The men were hanged. [12] Afghanistan also recently executed fourteen death row prisoners in November 2012. [13] Death sentences continue to be handed down as recently as July 2012. As punishment for a “green-on-blue” attack that caused the death of five French soldiers, an Afghan soldier was sentenced to death. [14]

The U.S. Department of State indicates that the Taliban maintains a parallel court system in areas the Afghanistan government does not control. [15] According to recent reports, the Taliban has resumed judicial executions in Taliban-controlled regions of Afghanistan. Taliban-controlled courts have pronounced death sentences (that were probably illegal under Shariah law), including the execution a couple for eloping (and thus engaging in adultery because their marriage was unrecognized) by public stoning, [16] the execution of a 7-year-old boy for spying, [17] the execution of a mother and daughter by stoning and shooting following accusations of “moral deviation and adultery,” [18] and the execution of a 22-year-old woman accused of adultery without an actual trial. [19] Afghanistan’s government to date has not abandoned the position that punishments inconsistent with its Constitution cannot be applied. This issue has been contentious among some clerics, who—amid an insurgency that punishes brutally and lawlessly—call for severity and assert that a failure to adopt their version of Shariah punishments is “hindering the peace process.” [20]

Definition of the legal scope of the death penalty is difficult in an environment described in 2005 as one where “judges and others willing to uphold the rule of law are often asked to act against factional commanders and other empowered groups without being provided with adequate security.” [21] Anti-reformist elements in the judiciary may oppose the government’s efforts to conform application of the law to the Constitution. [22]

Prior to the recent elections, the execution of death-sentenced prisoners has been cast as a political issue, [23] and Afghanistan’s ability to protect human rights related to the death penalty remains tenuous.

By the end of our research, it became possible to access some sentences pronounced by Afghanistan’s courts (http://www.supremecourt.gov.af/). In practice, Afghanistan’s courts may be restricting the scope of the death penalty more assiduously than they are credited with in the various reports we have researched.

Is there currently an official moratorium on executions within the country?

There is no official moratorium on executions. [24] Fourteen death row prisoners were executed on two consecutive days in November 2012. [25] Afghanistan also carried out two executions in 2011. [26] Though there is no official moratorium, the President is required to authorize all death sentences. [27] In 2009 and 2010, the number of reported executions was zero because the President did not approve any pending executions. [28]

Have there been any significant published cases concerning the death penalty in national courts?

As of October 31, 2012, we did not find any published opinions relating to the application of the death penalty from national courts.

Where can one locate or access judicial decisions regarding the death penalty?

The Afghan Supreme Court maintains a website at http://supremecourt.gov.af/fa. (The English version is available at http://supremecourt.gov.af/en.) The website lists selected decisions of the court and the interpretation of various laws. The English pages for this website are incomplete. As of Oct. 25, 2012, this website worked well in English, but only the outcomes of cases from 2009 were available (as opposed to judicial opinions). [29]

The Ministry of Justice posts a web page (http://www.moj.gov.af) that is designed to offer information on prison statistics, Gazette publications, a research database for Afghanistan’s laws, the development of parliament and legislation, and other pertinent topics. It is not available in English.

What is the clemency process?

The Afghan Supreme Court maintains a website at http://supremecourt.gov.af/fa. (The English version is available at http://supremecourt.gov.af/en.) The website lists selected decisions of the court and the interpretation of various laws. The English pages for this website are incomplete. As of Oct. 25, 2012, this website worked well in English, but only the outcomes of cases from 2009 were available (as opposed to judicial opinions). [30]

The Ministry of Justice posts a web page (http://www.moj.gov.af) that is designed to offer information on prison statistics, Gazette publications, a research database for Afghanistan’s laws, the development of parliament and legislation, and other pertinent topics. It is not available in English.

Are jury trials provided for defendants charged with capital offenses?

The Constitution does not provide a right to a jury trial. [31] Criminal trials are decided by judges only. [32]

Brief Description of Appellate Process

The Constitution provides for high courts, courts of appeal and the Supreme Court. [33] The lower court must hold trial within two months of detention. Both parties have the option of appealing the decision to the Appeals Court within 20 days. The decision of the Appeals Court may be appealed to the Supreme Court within 30 days. The Supreme Court must address the appeal within five months. A failure of an appellate court to meet a deadline results in the defendant’s release from custody. Prosecutors may appeal decisions and seek a harsher penalty; defendants remain incarcerated during such appeals. [34]

References

[1] The Constitution of Islamic Republic of Afghanistan. Arts. 23, 129, 2004.
[2] The Constitution of Islamic Republic of Afghanistan, Art. 7, 2004.
[3] Post-Taliban Afghanistan resumes executions, ABC News, http://www.abc.net.au/news/stories/2004/04/28/1096168.htm, Apr. 24, 2004.
[4] The Constitution of Islamic Republic of Afghanistan arts. 7, 129, 130, Jan 3, 2004.
[5] Afghanistan – Amnesty International Report 2008, Abuses by the Afghan Government, Death Penalty, Amnesty International, http://www.amnesty.org/en/region/afghanistan/report-2008#, 2008.
[6] Afghanistan – Amnesty International Report 2008, Abuses by the Afghan Government, Death Penalty, Amnesty International, http://www.amnesty.org/en/region/afghanistan/report-2008#, 2008.
[7] Amnesty International, Death Sentences and Executions 2008, ACT 50/003/2009, http://www.amnesty.org/en/library/asset/ACT50/003/2009/en/0b789cb1-baa8-4c1b-bc35-58b606309836/act500032009en.pdf, Oct. 03, 2009.
[8] Ben Farmer, Afghanistan Resumes Executions, Telegraph, http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/3446043/Afghanistan-resumes-executions.html, Nov. 12, 2008.
[9] Ben Farmer, Afghanistan Resumes Executions, Telegraph, http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/3446043/Afghanistan-resumes-executions.html, Nov. 12, 2008.
[10] Amnesty Intl., Death Sentences and Executions 2009, ACT 50/001/2010, http://www.amnestyusa.org/abolish/annual_report/DeathSentencesExecutions2009.pdf, Mar. 1, 2010.
[11] U.N.G.A., Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, p. 3, 31, U.N. Doc. A/HRC/11/2/Add.4, May 6, 2009.
[12] Amnesty Intl., Death Sentences and Executions in 2011, ACT 50/001/2012, Mar. 27, 2012. Hashim Shukoor, 2 Killers in Afghan Bank Siege are Hanged in Kabul, http://www.mcclatchydc.com/2011/06/20/116140/2-killers-in-afghan-bank-siege.html, June 20, 2011.
[13] AFP, Afghanistan Executes Eight Prisoners: Officials, Ahram Online, http://english.ahram.org.eg/News/58699.aspx, Nov. 20, 2012. Alissa Rubin, Afghanistan Executes Six in Gesture on Taliban, New York Times, http://www.nytimes.com/2012/11/22/world/asia/afghan-suicide-bomber-kills-3-near-us-embassy.html, Nov. 21, 2012. U.N. News Centre, UN Rights Chief Dismayed at Sudden Resumption of Executions in Afghanistan, http://www.un.org/apps/news/story.asp?NewsID=43578&Cr=afghanistan&Cr1#.ULVyhxyJniA, Nov. 22, 2012.
[14] AFP, Afghan Soldier Sentenced to Death for French Killings, http://www.afp.com/en/node/322512, AFP, July 17, 2012.
[15] 2009 Human Rights Report: Afghanistan, Bureau Of Democracy, Human Rights, And Labor, http://www.state.gov/g/drl/rls/hrrpt/2009/sca/136084.htm, last accessed Jun. 10, 2008.
[16] Rod Nordland, In Bold Display, Taliban Orders Stoning Deaths, The New York Times, http://www.nytimes.com/2010/08/17/world/asia/17stoning.html, Aug. 16, 2010.
[17] Mattiullah Mati, Officials: Taliban Executes Boy, 7, for Spying, CNN, http://www.cnn.com/2010/WORLD/asiapcf/06/10/afghanistan.child.execution/index.html, June 10, 2010.
[18] BBC, Afghanistan Mother and Daughter Stoned and Shot Dead, http://www.bbc.co.uk/news/world-asia-15688354, Nov. 11, 2011.
[19] Matthias Gebauer, Execution Reveals Weakness of Afghan Authorities, Spiegel Online, http://www.spiegel.de/international/world/taliban-execution-highlights-helpless-afghan-authorities-a-844461.html, July 16, 2012. Ron Synovitz, Afghans Say Extrajudicial Execution was Un-Islamic, http://www.rferl.org/content/afghans-say-extrajudicial-execution-was-unislamic/24640831.html, July 10, 2012.
[20] Rod Nordland, In Bold Display, Taliban Orders Stoning Deaths, The New York Times, http://www.nytimes.com/2010/08/17/world/asia/17stoning.html, Aug. 16, 2010.
[21] Cherif Bassiouni, Report of The Independent Expert on the Situation of Human Rights in Afghanistan, para. 27, U.N. Doc. E/CN.4/2005/122, Mar. 11, 2005.
[22] EurasiaNet, Afghanistan: Apostasy case reveals constitutional contradictions, http://www.unhcr.org/refworld/docid/46f2581a17.html, Apr. 22, 2006.
[23] Ben Farmer, Afghanistan Resumes Executions, Telegraph, http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/3446043/Afghanistan-resumes-executions.html, Nov. 12, 2008.
[24] Amnesty Intll, 10th World Day Against the Death Penalty, ACT 50/009/2012, Oct. 10, 2012.
[25] AFP, Afghanistan Executes Eight Prisoners: Officials, Ahram Online, http://english.ahram.org.eg/News/58699.aspx, Nov. 20, 2012. Alissa Rubin, Afghanistan Executes Six in Gesture on Taliban, New York Times, http://www.nytimes.com/2012/11/22/world/asia/afghan-suicide-bomber-kills-3-near-us-embassy.html, Nov. 21, 2012. U.N. News Centre, UN Rights Chief Dismayed at Sudden Resumption of Executions in Afghanistan, http://www.un.org/apps/news/story.asp?NewsID=43578&Cr=afghanistan&Cr1#.ULVyhxyJniA, Nov. 22, 2012.
[26] Amnesty Intl., Deaths and Executions 2011, ACT 50/001/2012, March 27, 2012.
[27] The Constitution of Islamic Republic of Afghanistan, Art. 129, Jan. 3, 2004.
[28] Amnesty Intl., Death Sentences and Executions 2009, ACT 50/001/2010, Mar. 1, 2010. Amnesty Intl., Death Sentences and Executions 2010, ACT 50/001/2011, March 28, 2011.
[29] The Supreme Court of the Islamic Republic of Afghanistan, http://supremecourt.gov.af/en, last accessed Oct. 25, 2012.
[30] The Supreme Court of the Islamic Republic of Afghanistan, http://supremecourt.gov.af/en, last accessed Oct. 25, 2012.
[31] The Constitution of Islamic Republic of Afghanistan, Jan. 3, 2004.
[32] U.S. Dept. of State, 2011 Human Rights Report: Afghanistan, Trial Procedures, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186457, May 24, 2012.
[33] The Constitution of Islamic Republic of Afghanistan, art. 116, Jan 3, 2004.
[34] 2009 Human Rights Report: Afghanistan, Bureau Of Democracy, Human Rights, And Labor, http://www.state.gov/g/drl/rls/hrrpt/2009/sca/136084.htm, last accessed Jun. 10, 2008.

Death Penalty In Practice

Where Are Death-Sentenced Prisoners incarcerated?

Reports that we have found do not explain whether death-sentenced prisoners are incarcerated throughout the country or whether they are held in a limited set of prisons. Many death row prisoners are reported to be held at Pol-e Charki, the main prison complex near Kabul. [1] Reports also indicate that death-sentenced prisoners are executed there. [2] Fourteen executions in November 2012 also took place in Pol-e Charki. [3] Based on these reports, death-sentenced prisoners may be concentrated at this facility.

Description of Prison Conditions

Prison conditions in Afghanistan are poor. [4] As of September 2012, there were a total of 24,613 prisoners, including pretrial detainees. [5] Most prisons and Ministry of the Interior detention centers are decrepit, unsanitary and overcrowded. Prisons are commonly short on food, water and blankets. Infectious diseases are also common. Families often provide food and living supplies to prisoners, and the Central Prison Directorate utilizes a limited budget to feed some inmates in their prison coverage area. [6]

Female inmates are not imprisoned with males, and pretrial detainees were housed with posttrial inmates. NGOs reported abuse of inmates by security forces and prison officials, including rape of female prisoners. The U.S. Department of State reported that detainees face “suspension; beatings, especially with rubber hoses, electric cables, or wires and wooden sticks, most frequently on the soles of the feet; electric shock; twisting of detainees’ genitals; stress positions; removal of toenails; and threats of sexual abuse” from security forces. [7] Detainees are mistreated and tortured, by way of whippings, exposure to cold temperatures and deprivation of food. [8] Female detainees were also reportedly raped by police officers. Children were reportedly sexually abused and raped while held. [9]

Children under the age of 7 are legally allowed to live with their incarcerated mothers; however, this practice has been reduced recently since CPD initiated its overview of prisons and with the opening of child support centers. [10] Juvenile detainees housed in juvenile detention centers across Afghanistan also experience lack of food and health care. Juvenile detainees also do not receive education. The MOJ reported that 81 children were detained in 2011 on national-security related charges. All were male, and six were under the age of 15. [11]

Communication with lawyers is restricted for many detainees. Family access for them is also limited. [12]

According to the 2005 report of the UN Independent Expert on Human Rights in Afghanistan, prison conditions were very poor and were in complete violation of the U.N. Minimum Standards For The Treatment of Prisoners with respect to female prisoners. [13] Twenty of thirty-four provinces did not have formal prisons: instead, rented homes were used as prisons. [14] Rented prisons often used metal shipping containers as holding cells, and overcrowding was very common. [15]

Although there were some improvements to Pol-e Charki, the main prison complex near Kabul, conditions remained sub-standard. Cells were overcrowded, prisoners were shackled (in violation of international standards of humane treatment) [16] and medical facilities and supplies were inadequate. Witnesses also report poor sanitation, open electrical wiring, and broken or missing windows. [17]

Are there any known foreign nationals currently under sentence of death?

There are no reported foreign nationals currently on death row. [18]

The Supreme Court commuted the death sentence of an Australian man, Robert William Langdon, who was previously on death row in Pol-e-Charkhi prison. Langdon was convicted of murdering an Afghan colleague in 2009. The court commuted his punishment to a 20-year sentence secretly on Oct. 11, 2010. Langdon reportedly paid diyyah, or blood money, to the victim’s family prior to the court’s decision. The commuted sentence was not made public until January 2011. [19]

A British businessman, Aziz Qayoumi, was released from death row in 2010. [20]

What are the nationalities of the known foreign nationals on death row?

Not Applicable.

Are there any known women currently under sentence of death?

There are at least five women on death row. [21]

Are there any reports of individuals currently under sentence of death who may have been under the age of 18 at the time the crime was committed?

No reports of minors on death row were found as of Oct. 26, 2012.

Comments regarding the racial/ethnic composition on death row

As of Oct. 26, 2012 we did not find any commentary on discriminatory application of the death penalty in Afghanistan based on race, ethnicity or similar factors.

Are there lawyers available for indigent defendants facing capital trials?

The Constitution provides for the government to appoint lawyers to represent indigent criminal defendants. [22] However, a shortage of publicly funded attorneys leaves many poor defendants without access to legal counsel. [23] However, a shortage of publicly funded attorneys leaves many poor defendants without access to legal counsel. [24]

Are there lawyers available for indigent prisoners on appeal?

The Constitution provides for lawyers at the public expense for indigent defendants. [25] However, representation is not always available due, in part, to a shortage of defense counsel. [26]

Comments on Quality of Legal Representation

Although every Afghan is entitled to legal representation, there remains a severe shortage of lawyers throughout the country. [27] As a result, commencement of trial without legal representation is fairly common, especially for female defendants. [28]

Other Comments on Criminal Justice System

The criminal justice system suffers from systemic problems of corruption, lack of trained officials, improper investigation techniques, and inadequate resources. Courts suffer from the lack of qualified judges and. [29] Judges often pass judgment based on personal understandings of the law, an issue which is further complicated by the lack of legal codes and other resources. [30] Trial procedures rarely meet international standards. [31] Torture is reported to be common among law enforcement agencies, [32] as is bribery, [33] affecting the legitimacy of criminal convictions, including capital convictions. U.N. reports indicate that experts in Afghanistan believe that innocent persons may be under sentence of death. [34]

References

[1] Lianne Gutcher, The Death Row Widows of Kabul, http://www.independent.co.uk/news/world/asia/the-death-row-widows-of-kabul-2372975.html, Oct. 20, 2011. Jeremy Kelly, Ex-Digger Robert William Langdon Escapes the Death Penalty for Afghan Murder, The Australian, http://www.theaustralian.com.au/news/nation/ex-digger-robert-william-langdon-escapes-the-death-penalty-for-afghan-murder/story-e6frg6nf-1225982660337, Jan. 06, 2011. Deborah Haynes, British Businessman on Death Row in Afghanistan Appeals to Government, http://www.thetimes.co.uk/tto/news/uk/article2503786.ece, The Times, May 7, 2010.
[2] Rebecca Murray, Death Penalty Returns to Haunt Afghanistan, http://www.ipsnews.net/2011/12/death-penalty-returns-to-haunt-afghanistan/, Intl. Press Service, Dec. 16, 2011. Amnesty Intl. Report 2008, Abuses by the Afghan Government, Death Penalty, Amnesty Intl., http://www.amnesty.org/en/region/afghanistan/report-2008#, 2008. Ben Farmer, Afghanistan Resumes Executions, Telegraph, http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/3446043/Afghanistan-resumes-executions.html, Nov. 12, 2008.
[3] AFP, Afghanistan Executes Eight Prisoners: Officials, Ahram Online, http://english.ahram.org.eg/News/58699.aspx, Nov. 20, 2012. Alissa Rubin, Afghanistan Executes Six in Gesture on Taliban, New York Times, http://www.nytimes.com/2012/11/22/world/asia/afghan-suicide-bomber-kills-3-near-us-embassy.html, Nov. 21, 2012.
[4] U.S. Dept. of State, 2011 Human Rights Report: Afghanistan, Prison and Detention Center Conditions, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186457, May 24, 2012.
[5] Intl. Center for Prison Studies, World Prison Brief: Afghanistan, http://www.prisonstudies.org/info/worldbrief/wpb_country.php?country=86, last accessed Oct. 25, 2012.
[6] U.S. Dept. of State, 2011 Human Rights Report: Afghanistan, Prison and Detention Center Conditions, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186457, May 24, 2012.
[7] U.S. Dept. of State, 2011 Human Rights Report: Afghanistan, Prison and Detention Center Conditions, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186457, May 24, 2012.
[8] U.S. Dept. of State, 2011 Human Rights Report: Afghanistan, Arrest Procedures and Treatment While in Detention, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186457, May 24, 2012.
[9] U.S. Dept. of State, 2011 Human Rights Report: Afghanistan, Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186457, May 24, 2012.
[10] U.S. Dept. of State, 2011 Human Rights Report: Afghanistan, Prison and Detention Center Conditions, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186457, May 24, 2012.
[11] U.S. Dept. of State, 2011 Human Rights Report: Afghanistan, Arrest Procedures and Treatment While in Detention, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186457, May 24, 2012.
[12] U.S. Dept. of State, 2011 Human Rights Report: Afghanistan, Arrest Procedures and Treatment While in Detention, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186457, May 24, 2012.
[13] Cherif Bassiouni, Report of The Independent Expert on the Situation of Human Rights in Afghanistan, 12, United Nations, E/CN.4/2005/122, Mar. 11, 2005.
[14] Cherif Bassiouni, Report of The Independent Expert on the Situation of Human Rights in Afghanistan, 12, United Nations, E/CN.4/2005/122, Mar. 11, 2005.
[15] Cherif Bassiouni, Report of The Independent Expert on the Situation of Human Rights in Afghanistan, 12, United Nations, E/CN.4/2005/122, Mar. 11, 2005.
[16] U.N. Commission on Human Rights, Report of the Special Rapporteur on torture and cruel, inhuman or degrading treatment or punishment, Visit by the Special Rapporteur to Pakistan, U.N. Doc. E/CN.4/1997/7/Add.2, Oct. 15, 1996; Cherif Bassiouni, Report of The Independent Expert on the Situation of Human Rights in Afghanistan, para. 29, U.N. Doc. E/CN.4/2005/122, Mar. 11, 2005.
[17] Cherif Bassiouni, Report of The Independent Expert on the Situation of Human Rights in Afghanistan, 12, United Nations, E/CN.4/2005/122, Mar. 11, 2005.
[18] Foreigners Under Sentence of Death Worldwide, http://users.xplornet.com/~mwarren/world.html, last accessed Oct. 24, 2012. Jeremy Kelly, Ex-Digger Robert William Langdon Escapes the Death Penalty for Afghan Murder, The Australian, http://www.theaustralian.com.au/news/nation/ex-digger-robert-william-langdon-escapes-the-death-penalty-for-afghan-murder/story-e6frg6nf-1225982660337, Jan. 06, 2011.
[19] Jeremy Kelly, Ex-Digger Robert William Langdon Escapes the Death Penalty for Afghan Murder, The Australian, http://www.theaustralian.com.au/news/nation/ex-digger-robert-william-langdon-escapes-the-death-penalty-for-afghan-murder/story-e6frg6nf-1225982660337, Jan. 06, 2011.
[20] Deborah Haynes, British Businessman on Death Row in Afghanistan Appeals to Government, http://www.thetimes.co.uk/tto/news/uk/article2503786.ece, May 7, 2010. Reprieve, Report 2010: A Year of Secrets Revealed, http://www.reprieve.org.uk/static/downloads/Reprieve_2010_Annual_Report.pdf, last accessed Oct. 31, 2012.
[21] Lianne Gutcher, The Death Row Widows of Kabul, http://www.independent.co.uk/news/world/asia/the-death-row-widows-of-kabul-2372975.html, Oct. 20, 2011. Rebecca Murray, Death Penalty Returns to Haunt Afghanistan, http://www.ipsnews.net/2011/12/death-penalty-returns-to-haunt-afghanistan/, Intl. Press Service, Dec. 16, 2011.
[22] The Constitution of Islamic Republic of Afghanistan. ch. 2, art. 31, Jan 3, 2004.
[23] U.S. Dept. of State, Human Rights Report 2011: Afghanistan, Denial of Fair Public Trial, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186457, May 24, 2012.
[24] Afghanistan faced with defense lawyer shortage, PakTribune, http://www.paktribune.com/news/index.shtml?195684, Dec 19, 2007.
[25] The Constitution of Islamic Republic of Afghanistan. Chapter 7, Article 31, Jan 3, 2004.
[26] 2009 Human Rights Report: Afghanistan, Bureau Of Democracy, Human Rights, And Labor, http://www.state.gov/g/drl/rls/hrrpt/2009/sca/136084.htm, last accessed Jun. 10, 2010.
[27] The Constitution of Islamic Republic of Afghanistan. Chapter 7, Article 129. http://www.president.gov.af/Contents/68/Documents/218/ChapterSevenTheJudiciary.html. Last Accessed Jun. 3, 2010. 2009 Human Rights Report: Afghanistan, Bureau Of Democracy, Human Rights, And Labor, http://www.state.gov/g/drl/rls/hrrpt/2009/sca/136084.htm, last accessed Jun. 10, 2010.
[28] Cherif Bassiouni, Report of The Independent Expert on the Situation of Human Rights in Afghanistan, 12, United Nations, E/CN.4/2005/122, Mar. 11, 2005.
[29] 2009 Human Rights Report: Afghanistan, Bureau Of Democracy, Denial of Fair Trial, http://www.state.gov/g/drl/rls/hrrpt/2009/sca/136084.htm, last accessed Jun. 10, 2010.
[30] 2009 Human Rights Report: Afghanistan, Bureau Of Democracy, Denial of Fair Trial, http://www.state.gov/g/drl/rls/hrrpt/2009/sca/136084.htm, last accessed Jun. 10, 2010.
[31] 2009 Human Rights Report: Afghanistan, Bureau Of Democracy, Trial Procedures, http://www.state.gov/g/drl/rls/hrrpt/2009/sca/136084.htm, last accessed Jun. 10, 2010.
[32] 2009 Human Rights Report: Afghanistan, Bureau Of Democracy, Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, http://www.state.gov/g/drl/rls/hrrpt/2009/sca/136084.htm, last accessed Jun. 10, 2010.
[33] 2009 Human Rights Report: Afghanistan, Bureau Of Democracy, Role of the Police and Security Apparatus, http://www.state.gov/g/drl/rls/hrrpt/2009/sca/136084.htm, last accessed Jun. 10, 2010.
[34] U.N.G.A., Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, p. 3, 31, U.N. Doc. A/HRC/11/2/Add.4, May 6, 2009.

Decisions of International Human Rights Bodies

Decisions of Human Rights Committee

No recent decisions or concluding observations of the Human Rights Committee were available at http://www.ohchr.org/EN/Countries/AsiaRegion/Pages/AFIndex.aspx.

Decisions of Other Human Rights Bodies

According to the 2008 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, the Afghani criminal justice system is deeply flawed. As a result, respect for due process rights is lacking. Wealthy and well-connected citizens are able to often buy their way out of punishment. Impunity runs rampant, and “corruption is endemic.” Extrajudicial assassinations are also common. The Special Rapporteur urged Afghanistan to impose an official moratorium on the death penalty. [1]

The UN Human Rights Council pursuant to its Universal Periodic Review of human rights in Afghanistan in 2009 made several recommendations relating to the use of the death penalty in Afghanistan. Afghanistan rejected recommendations that it reinstate an official moratorium on the death penalty and ultimately abolish the death penalty. [2]

In a 2009 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, concern was expressed for the high probability that innocent individuals are executed due to deficiencies in the criminal justice system. Police, prosecutors and judges acknowledged the widespread incompetency and corruption in the system, and the lack of respect for due process. Lack of access to lawyers and unfair trials were common. In response, the Special Rapporteur recommended that Afghanistan adopt a moratorium on the death penalty. Alongside injustices in the judicial system, there were also widespread extra-judicial executions taking place. The Taliban executed 271 civilians in 2008. [3]

In its 2011 concluding observations, the Committee of the Rights of the Child expressed concern that many children detained by police are tortured and abused while in custody. Children are also often handcuffed and shackled while in juvenile rehabilitation centers. [4]

According to the 2011 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, extrajudicial killings remain widespread and high in number in Afghanistan. Because the President must approve a death sentence before an execution can take place, there had been a brief, unofficial moratorium on the death penalty between 2009 and 2010. The Special Rapporteur recommended that Afghanistan adopt an official moratorium on the death penalty. [5]

References

[1] U.N.G.A., Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, p. 5-6, A/HRC/8/3/Add.6, May 29, 2008.
[2] Universal Periodic Review, Report of the Working Group on the Universal Periodic Review, p. 24, A/HRC/12/9, Jul. 29, 2009.
[3] U.N.G.A., Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, p. 3, 15, 31, A/HRC/11/2/Add.4, May 6, 2009.
[4] U.N., Convention on the Rights of the Child, Committee on the Rights of the Child, Consideration of reports submitted by States parties under article 44 of the Convention, p. 7, CRC/C/AFG/CO/1, April 8, 2011.
[5] U.N.G.A, Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, p. 1-2, 20, U.N. Doc. A/HRC/17/28/Add.6, May 27, 2011.

Additional Sources and Contacts

Direct member(s) of World Coalition Against the Death Penalty

None.

Other non-governmental organizations and individuals engaged in advocacy surrounding the death penalty

None.

Helpful Reports and Publications

Amnesty Intl., Crumbling Prison System Desperately in Need of Repair, ASA 11/017/2003, http://www.amnesty.org/en/library/info/ASA11/017/2003/en, July 7, 2003.

U.N. Economic and Social Council, Commission on Human Rights, Report of The Independent Expert on the Situation of Human Rights in Afghanistan, U.N. Doc. E/CN.4/2005/122, Mar. 11, 2005.

A number of reports and other publications are available from the United Nations Assistance Mission in Afghanistan: http://unama.unmissions.org.

Ali Akram Khan Sherwani, Impact of Islamic Penal Laws on the Traditional Arab Society, M.D. Publications Pvt. Ltd., 1993.??

Dr. Nagaty Sanad, The Theory of Crime and Criminal Responsibility in Islamic Law: Shariah, The Office of International Criminal Justice, University of Illinois at Chicago, 1991.

Gerald E. Lampe, ed., Justice and Human Rights in Islamic Law, International Law Institute, 1997.

Khaled Abou El Fadl, Rebellion and Violence in Islamic Law, Cambridge University Press, 2001.

Khaled Abou El Fadl, The Death Penalty, Mercy and Islam: A Call for Retrospection, p. 73-105 in Erik C. Owens, et. al., eds., Religion and the Death Penalty: A Call for Reckoning, Wm. B. Eerdmans Pub. Co., 2004.??M. Cherif Bassiouni, Crimes and the Criminal Process, Arab Law Quarterly, Vol. 12 No. 3, p. 269, 1997.??

M. Cherif Bassiouni, ed., The Islamic Criminal Justice System, Oceana Publications, Inc., 1982.??Mohamed S. El-Awa, Punishment in Islamic Law: A Comparative Study, American Trust Publications, 1982.??

Muhammad Abdel Haleem et. al, Criminal Justice in Islam: Judicial Procedure in the Shariah, I.B. Tauris & Co. Ltd., 2003.?

? Robert Postawko, Towards an Islamic Critique of Capital Punishment, UCLA Journal of Islamic and Near Eastern Law, Vol. 1 p. 269, 2002.??

Rodolphe J.A. De Seife, The Shariah: An Introduction to the Law of Islam, Austin & Winfield, 1994.??

S. Mahmassani, Falsafat Al-Tashri Fi Al Islam, Translated by Farhat J. Ziadeh, E.J. Brill, 1961.??Tahir Mahmood et. al., Criminal Law in Islam and the Muslim World, Institute of Objective Studies, 1st ed., 1996.

Additional notes regarding this country

None.

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