Rights & Freedoms

Afghanistan’s Latest Executions: Responding to calls for capital punishment


Six convicts sentenced to death were executed by hanging in Pol-e Charkhi prison in Kabul on the morning of 8 May 2016. (Photo Source: Tolonews)

Six convicts sentenced to death were executed by hanging in Pol-e Charkhi prison in Kabul on the morning of 8 May 2016. (Photo Source: Tolonews)

On the president’s order, six convicts sentenced to death were executed by hanging in Pol-e Charkhi prison on the morning of 8 May 2016. The executions came after the president’s speech at the joint session of both houses of Parliament on 25 April 2016, in which he announced that the time for unjustified amnesty was over. Although the death penalty is legal in Afghanistan, according to both the criminal code and Islamic law, actual executions have been implemented on an ad-hoc basis. The recent executions, however, may signal an end to the informal moratorium on capital punishment that has been in place for the past fifteen years, partially at the urging of the international community. The public’s increasing impatience with insurgent violence and the desire of the Afghan government to present itself as acting decisively seem to point in that direction. AAN’s Ehsan Qaane and Jelena Bjelica take a closer look at the issue.

On the morning of 8 May 2016, six convicts who had been sentenced to death were executed by hanging in Pol-e Charkhi prison in Kabul. According to information released by the National Directorate of Security (NDS) following the executions, the six were:

1. Muhammad Usman, a member of the Taleban who was convicted for planting an improvised explosive devise (IED) in Khairkot district of Paktika, which killed seven police officers. (No further details are available)

2. Khan Agha, also known as Abdul Rahman and a member of al-Qaeda, who was convicted for his involvement in the attack on Abdullah Laghmani, the deputy head of the NDS in 2009. Laghmani, local officials and 14 civilians were killed and 56 injured in the attack that took place outside a mosque in Mehtarlam.

3. Hamidullah, a member of the Taleban who was convicted for being involved in the assassination of Burhanuddin Rabbani in Kabul on 20 September 2011. Burhanuddin Rabbani was one of the founders of Jamiat-e-Islami, a former president of Afghanistan during the mujahedin era and head of the High Peace Council since 2010. (1)

4. Muhammad Ismail, a member of the Haqqani network who was convicted for his involvement in the planning of the suicide attack on Finest Supermarket in 2011. In this attack, Ms. Hamida Barmaki, a commissioner of the Afghanistan Independent Human Rights Commission (AIHRC) was killed together with her husband and four children; in total nine Afghans and five foreigners died in the attack.

5. Hujatullah, a member of the Taleban who was convicted for planting an IED on a vehicle in Paghman province. The explosion killed nine civilians and injured others. (No further details are available)

6. Akmal, a member of the Taleban who was convicted for planning the attack on the Muhammad Daud Khan Military Hospital in 2011. The attack killed at least six people, including four members of the Afghan National Security Forces and injuring more than 20.

Presidential order

The execution of the six convicts comes in the wake of President Ghani’s hard-hitting speech at the joint session of both houses of Parliament on 25 April 2016 and a deadly attack in Kabul on 19 April 2016, which killed 68 and injured 347 people, and for which the Taleban claimed responsibility. In his address, which signalled the government’s hardening position on the war, on peace talks and on the Taleban (see AAN’s previous analysis here), the president avowed his resolve to implement tough justice, including through capital punishment:

The time for those who enjoyed unjustified amnesty is over. The government of the Islamic Republic of Afghanistan is committed to resolutely implementing decisions of the courts and judicial entities, including the rulings of execution.

At the same time, Ghani assured MPs (and a wider audience, including the international community) that his committment to punishing those who commit terrorists acts would be accompanied by respect for human rights, the rule of law and the Afghan constitution:

The enemies of Afghanistan should know that if they are caught on the combat field while committing terrorist acts against the people of Afghanistan, they will be brought to justice and the rule of law will be fully implemented. I assure you, respected representatives, elders, and the noble people of my country that as president and protector of the rights and security of the people of Afghanistan, I will resolutely deal with those who shed the blood of our soldiers and our innocent people and I will not hesitate to punish them. […] Our resolute acts have one clear message: our hand of justice is long and powerful and can reach all criminals and terrorists. Obviously, our firmness in establishing justice goes with our respect for our constitution, our human rights commitments and justice seeking policy.

He even thanked judges who had tried and ruled death penalties, and promised to protect them from revenge attacks: “I thank those who have tried the baghis (2) and ruled to execute them, and I assure them that we shall protect them.”

Ghani’s deputy spokesperson said on 29 April 2016 that “a week ago” the president ordered a review of the death sentences in accordance with the country’s legal system, which is based on Islamic law, Afghanistan’s constitution and human rights values. Indeed, a couple of days before his speech in parliament, the president established a committee to review all death sentences handed out so far, prior to their carrying out. While the exact composition of the review committee is unclear, AAN was told that it is chaired by the Attorney General and includes the deputy Attorney General, a member of the Supreme Court and unidentified “independent experts.” The president’s office reportedly also asked the Afghanistan Independent Human Rights Commission (AIHRC) to join the committee, but they were said to have refused. With at least two or three members of the committee affiliated to the country’s judiciary organs, which prosecuted and tried those sentenced to death, they are essentially put in charge of reviewing their own institutions’ work. This raises possible questions about the impartiality of death sentence reviews.

During the first week of the review committee’s work, ten cases were considered. The committee ruled that in six of the ten cases all legal standards had been met. A press release, issued by the presidential palace (Arg) on 8 May 2016, stated that the president had signed the execution orders “after careful consideration, completion of due process and [ascertaining the] fairness of the trials conducted.” According to Afghanistan’s legal system, once a death sentence has gone through all judiciary instances (Primary Court, Appeals Court and Supreme Court), execution orders for each death sentence still require the president’s signature.

The Arg press release also noted that the decision to carry out the death sentences had taken into account “the repeated requests of the families of the victims of terrorist attacks” and highlighted that the Islamic Republic of Afghanistan and the president are “committed to justice and punishing criminals who committed the criminal and terrorist acts, killed innocent people, or put security and public safety at risk.”

The six executions could be the first of many. According to palace officials in October 2014, shortly after Ghani came to power (quoted by Khaama news here), there were, at the time, 400 cases still waiting to be reviewed or signed off for execution by the president. Around 100 of these cases had been approved by the Supreme Court at the time and were awaiting the president’s signature. The remaining 300 had yet to be approved by the Supreme Court. This figure does not appear to have changed since then.

The 400 cases represent approximately 600 individuals sentenced to death.
 AAN was told that the majority of these individuals have been sentenced for ‘ordinary’ crimes, such as murder, while a notable number—estimated to be around 100 individuals—were sentenced for mass murder through acts of terrorism. It appears that the review process is focused on this latter category of convicts.

Taleban reaction

The Taleban issued an initial statement on 29 April 2016 in reaction to Ghani’s speech to the Parliament and the press statement made by the president’s spokesperson on the same day. In their statement, the Taleban said that the call for execution “holds no legal basis because these political prisoners are handed the death penalty by the most corrupt and incompetent judicial body in the world.” It also said that the “known individuals or unions and their workers advocating implementation of such crimes [ie execution]”, will “be classified as legitimate military targets.” The Taleban statement called on “international human rights organizations, independent media outlets, the ICRC and other free impartial committees not to remain indifferent in using their influence concerning [the] matter of prisoner execution.”

Following the 8 May 2016 executions, the Taleban issued two more statements. The first one, issued on the morning of the same day, was rather generic, lamenting the poor conditions in the overcrowded Afghan prisons and the lack of fair trials and accusing the Afghan government of torturing prisoners. The statement, which seems to have been prepared ahead of time and was probably not in response to the executions, was addressed to the United Nations and called on the UN’s shared responsibility to ensure that the Afghan government adhered to its international commitments.

The second statement issued in the evening of 8 May (available in English here) directly referred to the executions that were carried out, describing them as a “vindictive barbarity” that “spinelessly martyred six defenseless Mujahideen inmates.” The statement reiterated the warning to those involved in the executions, saying they would become “the top priority during military planning” and that “they will not be allowed to breathe peacefully, nor will they ever be able to feel secure.”

After 14 executions were carried out in 2012, the Taleban also demanded that the United Nations, Islamic countries, international human rights organisations and the Red Cross prevent prisoners’ executions (see AAN previous reporting here). Two days after the executions took place on 23 November 2012, a massive truck bomb by the Taleban targeting a joint Afghan/ISAF command facility in Wardak province was labeled as a “revenge attack.”

Public opinion and political complexities

The death penalty is legal in Afghanistan, according to both the criminal code and Islamic law. Public opinion also seems to be strongly in support of the capital punishment. Nader Nadery, a former commissioner of the AIHRC and currently a senior adviser in the presidential palace, told AAN in 2012 “there is more public demand for the death penalty because the rate of crime is increasing.” After the execution of five men found guilty of gang rape in Paghman province, carried out on 8 October 2014, local human rights groups as well as officials in Afghanistan welcomed the executions and the Afghan media found “public opinion appears solidly behind capital punishment,“ despite concerns over rushed proceedings and a possible lack of due process. In 2016, the rhetoric and position on capital punishment remains unchanged. When a young Afghan girl was raped and killed in Iran earlier this year, Afghan civil society activists went public with their demand for capital punishment for the perpetrator.

Arman-e Melli, a daily that is close to the National Union of Journalists of Afghanistan, wrote on 8 May 2016 under the headline “Well done, Ashraf Ghani!”: “The president has taken a good and constructive measure and we believe that such measures can have a positive impact on stability and security in the country… We support the measure taken by the president of our beloved country in this particular issue….” The privately owned Mandegar daily wrote that “the people of Afghanistan welcome the executions of terrorists and perpetrators of crimes against humanity and they expect these executions to be carried out and reported in full transparency… The media outlets should be present where the executions take place so that they can document the executions and report on them.” Daily Afghanistan, linked to Muhammad Mohaqqeq, now deputy to the CEO Dr Abdullah Abdullah, also welcomed the executions, adding that “The previous governments in Afghanistan did not take the war against the Taleban seriously… By taking this action, it seems that the government is no longer showing leniency towards the Taleban… This reaction puts the Taleban in a difficult situation and sends them a message that if they do not make peace, they are practically at war with the government and the government will treat them this way.”

Victims’ families, MPs and intellectuals have often been strong advocates for capital punishment. On 4 May 2016, for instance, Balkh MP Mawlavi Rahman Rahmani said at a Wolesi Jirga session that he had received a list of the 631 criminals who had been sentenced to death. “President Ghani has said he will seek the views from the international community and human rights organisations on sentencing these criminals to death,” Rahmani added that in his opinion “the criminals should be punished, otherwise we will continue to face the consequence we have been facing until now.”

There were some other misgivings, but not with regard to the death penalty per se. Atta Muhammad Nur, the acting governor of Balkh, for instance, was quoted on the Nunn.asia website on 10 May 2016, as saying that the convict’s family had not been consulted on the execution of Rabbani’s assassin – which he said should have been done and had been agreed upon. Atta added that “this person had many secrets about Rabbani and with his execution all those secrets were also buried.”

At the same time, Afghanistan faces pressure from donor countries, mostly by those who have abolished capital punishment themselves. The European Union has traditionally been the most outspoken in trying to convince Afghanistan not to implement death sentences. As EU Special Representative to Afghanistan, Franz-Michael Skjold Mellbin wrote in an earlier editorial published by Pajhwok news agency on 5 October 2015:

The European Union and its member states hold a strong and principled position against death penalty. Its abolition represents one of the main objectives of our Human Rights Policy – not only in Afghanistan, but worldwide. To honour the European & World Day against the Death Penalty, we therefore urge the Government to establish a moratorium with immediate effect that suspends the execution of death sentences in Afghanistan. Afghanistan needs less – not more violence.

Executions from 2001 until 2015

From the beginning, the EU and human rights organisations encouraged president Karzai, if not to abolish capital punishment entirely, to at least declare a formal moratorium on executions until the criminal justice system was sufficiently reformed to ensure that all convicts received a fair trial.

In April 2004, Abdullah Shah, a military commander from Paghman convicted for multiple murders committed during the country’s civil war, was executed in Kabul – the first execution since the establishment of the interim government in late 2001. He had been convicted in October 2002 in special court proceedings, which, according to Amnesty International, fell far short of international fair trial standards: Abdullah Shah had had no defense lawyer at his trial, the hearing was held in a closed court and the chief judge in the initial trial was dismissed for accepting bribes. The case was also criticised by those who saw it as an attempt to eliminate a key witness who could have implicated powerful figures in past human rights abuses.

President Karzai’s then chief spokesperson, Jawed Ludin, called the execution of Abdullah Shah an exception rather than a new rule, and stressed that this did not mean that the execution process had started.

Indeed no executions took place in 2005 or 2006, but in 2007 Afghanistan carried out fifteen executions and in 2008, eighteen death sentences were carried out. After another two years without executions, there were again two in 2011, fourteen in 2012, two in 2013, six in 2014 and one in 2015 (see here for the list of crimes that are punishable by death in Afghanistan).

Since taking office on 29 September 2014, Ghani signed one other execution order before the 8 May 2016 cases: on 28 February 2015, Rais Khudaidad (also known as Rais Saidullah) was hanged after being convicted of murder, kidnapping and armed robbery one month earlier. At least 12 new death sentences have been imposed for murder and rape under the new government, but have yet to be implemented.

Five more individuals were executed on 8 October 2014, shortly after Ghani became president. Their execution order for armed robbery and rape had been signed by Karzai only days before he handed over power and was carried out by Ghani, despite UN calls for a stay of executions, see here and here).

Walking a tightrope

President Ghani is walking a tightrope as he tries to show both the Afghan people and the international community that he can deliver on his promises to be tough and decisive on the insurgency. The government’s new position on executions, while playing to public demands, still sits uncomfortably with the international community, particularly the United Nations and the European Union. The United Nations issued a press release following the executions, in which the organisation reiterated its “continued call for a moratorium on the use of the death penalty.” The United Nations noted that there is no conclusive evidence of the death penalty having any deterrent value and that its use does not contribute to public safety, encouraging the Government of Afghanistan to expedite legal reforms, which would allow death sentences to be commuted to life imprisonment. Human Rights Watch (HRW) on 10 May 2016 called on President Ghani to “impose an immediate death penalty moratorium” and called on Afghanistan’s donors, who have bankrolled the reform of the country’s judicial system, to make ending the death penalty “a top priority.” Part of the context is that, apart from doubts regarding due process in all cases, torture is still an existing practice among Afghan security organs and that it cannot be ruled out that, in certain instances, confessions are obtained by such means.

However, with the review of the many pending cases having just begun and in a climate where executions seem to be welcome and wished for by the public, as well as with the government seeking to project a tougher position on its armed opponents – who show no signs of dropping terrorism from their agenda – the six executions carried out on 8 May 2016 may be just the beginning.

 

(1) For more background on Hamidullah’s role in Rabbani’s assassination, see earlier AAN reporting herehere  and here (the last dispatch also has the transcript of a video recording of Hamidullah’s confession, that was released by the NDS on 4 October 2011).

(2) Baghi is a legal term in Islamic jurisprudence used for a specific group that transgresses and conducts violent acts against a legitimate Islamic authority. In the context of Sharia law, baghis are outlaws and criminals that need to be eliminated.

 

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