Afghanistan Analysts Network – English

Rights and Freedoms

After the Executions: What approach to the death penalty?

Thomas Ruttig 12 min

After the execution of 14 prisoners last week, Afghan civil society has rightly ridiculed the Taleban who demanded an end to executions. But it has not taken up the question of the death penalty in Afghanistan in general. Capital punishment is legal under both the Afghan penal code and sharia. Even so, the well-known problems of due process and abuses in the legal system, including using them to make political points, corruption and simple lack of professionalism make it troubling when the state carries out executions. AAN’s Thomas Ruttig goes further, arguing that Afghan civil society should start rethinking its stance vis-à-vis the death penalty, in general, and join the many others – including a majority of countries in the world – who have said farewell to this means of ‘justice’.

Aziz Rafiee, from Afghan Civil Society Forum, hit the nail on the head when he described the Taleban demand for the Afghan state to stop executing prisoners – at the very same time as the Taleban themselves continue their campaign of targeted assassinations – as the ‘joke of the century’.(1) It is regrettable, however, that Afghan civil society has not used this – albeit unwelcome – opportunity to unequivocally speak out against the use of all executions by all sides in the ongoing Afghan war. As of 26 November, none of the websites of the major Afghan human rights or civil society organisations carried a statement criticising or condemning the executions.
By contrast, Afghan civil society and human rights advocates have repeatedly documented and condemned the campaigns of targeted killings or the ‘collateral’ killings of civilians, whether carried out by the Taleban or the international and Afghan government military and whether by using suicide bombers, drones or other means. There has also been widespread condemnation for such acts of individual Taleban ‘justice’ as the execution of Najiba, a 22 year old women who was shot in murky circumstances, apparently escaping from unwanted or unhappy marriage, in Parwan province earlier this year.

The Taleban often use legal terminology to justify their executions; as in the case of Najiba in Parwan or when they deal with an alleged spy, the Taleban convene a jirga or a sharia court, i.e. they invoke traditional or Islamic law. When using suicide attacks to kill government officials or local pro-government notables they speak of jihad as farz, i.e. religious duty, and if innocent bystanders are killed or harmed during such action this is treated as regrettable, but often unavoidable. Officially, of course, according to the Taleban layha (code of conduct) (read our analysis of it here), fighters must treat the local populations with care. Unfortunately, such orders have not resulted in fewer civilian casualties caused by their side.

The use by the US military and their allies of ‘kill lists’ (read here and here and about a case of US-German cooperation on them here) to target suspected ‘insurgent leaders’ also amounts to de facto death sentences, only without the right to appeal. Moreover, we know that cases of mistaken identity mean the innocent do get killed in this way (an AAN case study here). The case study also showed how a person’s mere proximity to someone placed on the kill list is enough for the military to assume he is also an insurgent. The practice breaches the military’s duty to protect civilians.

As the New York Times puts it in the article quoted above, this is the practice with drone strikes in Pakistan, too: ‘Mr. Obama embraced a disputed method for counting civilian casualties […]. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent’ (read also this).

However, the demands by Afghan human rights advocates at least (if not by civil society more broadly) to stop the killings should not only apply to Taleban ‘justice’ cases or the ‘collateral’ killing of civilians by the international military forces. It should also apply to executions by the Afghan state, such as the 14 death penalties carried out on 20 and 21 November in Kabul’s Pul-e Charkhi prison. I say this even though the men had been condemned for some of the indeed most horrible crimes: murder, rape, including even of children, and terrorist attacks. There simply should be no different standards applied.

In the case of the executions in Kabul’s Pul-e Charkhi prison, the first since June 2011,(2) ordered by the President, what prompted them now?

The most notable person to recently call for executions was one of the president’s closest advisors, the MP and mujahedin leader (and a man accused of war crimes himself), Abdul Rabb Rassul Sayyaf. ‘You hang five suicide attackers at the gates of Kabul, and if you see bombers ever again, instead of them, hang me,’ Sayyaf was quoted as saying by Tolo News on 9 September. His statement was mentioned again after the recent executions.

Sayyaf’s suggestion was shockingly similar to the thinking and practice of the Taleban when they were in power; they very much favoured the death penalty as a means to ‘cut crime’ and carried out executions in public. The author was in Kabul in 2000, working for the UN, when the Taleban publicly hanged ‘terrorists’ in the National Stadium in front of a crowd of onlookers herded into the venue. Taleban officials paraded the bodies around in Kabul on crane trucks, still with cables around their necks and with banknotes stuffed into their mouths. Most likely the dead were underground activists ofShura-ye Nazar. The Taleban had even had the macabre idea to invite the UN to attend. Obviously we did not go.

Despite the obvious parallels with Taleban practice, there seems to be widespread and often open support for the use of the death penalty among Afghans today. Humaira Haqmal, a female professor of law at Kabul University (quoted by Deutsche Welle, Germany’s official foreign broadcaster), for example, said that, ‘in the current situation, I think the death penalty is the best solution; especially in cases where barbarous crimes have been committed against women and children.’ Family members of the victims of those who were executed also welcomed the executions. Nader Naderi, a recently dismissed member of the Afghan Independent Human Rights Commission (AIHRC), confirmed that ‘there is more public demand for the death penalty because the rate of crime is increasing’.

The relatives’ feelings are understandable, and those of the general public do conform with the legal situation: the death penalty is legal in Afghanistan, both according to the criminal code and Islamic law.(3) It is also legal of course – and used more frequently in the United States, the Afghan government’s main financial and military backer and the world’s self-proclaimed beacon of democracy, and in many neighbouring countries of Afghanistan, including Iran, Pakistan, the world’s rising power, China, and even in what often is called ‘the world’s largest democracy’, India, where the only surviving perpetrator of the 2008 terrorist attacks in Bombay had just been executed.

The problem is that the use of the death penalty even in a well-run justice system leads to miscarriages of justice; death penalties, if carried out, obviously cannot be undone and the danger of executing the innocent is real. As Naderi also pointed out, ‘We do know there are issues in our judicial system [that constitute problems] for a free and fair trial to be convened’.

That’s mildly put. There are major problems with Afghanistan’s legal system: its blatant unfairness, corruption and nepotism as well as a lack of professionalism. The use of torture to extract confessions (see reports on this issue here and here and our blog here) and the bribing and intimidation of police, prosecutors, NDS or judges are widespread, leading to the guilty often going free and innocent being imprisoned instead. (For more details, read the detailed UNAMA report on arbitrary detentions in Afghanistan.) These are also arguments that have been used when efforts have been made to convince the Afghan government to adopt a moratorium on the death penalty. Afghan civil society and human rights organisations, too, have been consistent in criticising this situation in the past.

Referring to the specific case of the recent 14 executions in Kabul, Naderi’s AIHRC colleague, Hussain Ali Moin, pointed out: ‘We haven’t had full access to these cases… Still we cannot say if their trials were fair.’. But when it comes to carrying out the death penalty, the question should not be whether the legal processes that led to these executions were in accordance with the rule of law and due process standards. Rather, the focus should be on whether there is the risk in general that the rule of law and due process standards may be violated. This is particularly important as there are, according to an Afghan media report (confirmed by the AIHRC), still some 250 other people on death row and the 14 executions had been reviewed by a Presidential committee established to review all these cases.(4)

Furthermore, it is not just troubling, but factually inaccurate, when this issue of the death penalty is used to score populist political points, as by the Attorney General’s spokesman who said the executions, of all things, were a sign of Afghan independence from ‘Western influences’: ‘Afghanistan has its own judicial system,’ he said, ‘and there is no place for foreign interference.’ The spokesman’s comment that ‘the Afghan constitution allows capital punishment’ is true, but it also protects fair trial and due process in its Artikles 25 to 27, something which the spokesman failed to mention.

Apart from this, the world, in general, is moving away from the death penalty. There is now a clear majority, 140 countries, which have either abolished the capital punishment completely or, at least, declared a moratorium on carrying out executions, including some countries with Muslim majority populations.(5) Many of the countries that have abolished the death penalty have done so because they consider it to be a cruel and inhuman punishment.

It might be difficult for those in Afghan civil society who share such concerns to take a clear position that would both contradict the government’s and what is seen as permissible under the sharia. It may also hurt a great deal to say no to the death penalty in the case of rapists, terrorists or someone like US Army Sergeant Robert Bales who is facing a military tribunal, accused of the murders of 16 Afghans earlier this year in Kandahar province, and who could face the death penalty if convicted.

Yet human rights advocates should take a principled stand. On human rights, there should be no exceptions, not even for criminals. Anything else risks accelerating the cycle of revenge that is already in full swing in Afghanistan, with groups on all sides claiming right to be on their side, indeed their right to kill, while at the same time trying to make everyone forget how often and how massively they have violated the rights of other Afghans. At the same time, human rights advocates should continue to push – together with their international allies – for a functioning and effective judicial and prison system that convicts the guilty and spares the innocent and guarantees that criminals who are sentenced to jail remain there for the term imposed on them – and cannot bribe their way out or use political protection to escape.

Afghanistan, as a self-declared ‘young democracy’ – according to Foreign Minister Zalmai Rassul’s statement at the Rio+20 conference this June – should make a firm decision on which side of the dividing line between supporters and opponents of the death penalty it wants to stand. This goes even more for Afghan civil society.

(1) A quick browse of Afghan media comes up with five assassinations over the last month: 22 November, deputy head of Shindand district NDS; 15 November, former head of Nimruz Hajj department; 11 November, religious scholar in Maimana; 3 November, district police chief of Dand; 24 October, Purchaman district governor.

The Taleban statement reads: ‘We want the United Nations, Islamic countries, international human rights organisations and the Red Cross to prevent prisoners’ execution. If they have not prevented it Kabul and the involved agencies will face strong attacks’. But the Taleban even did not wait for two days: They called a massive truck bomb used against a joint Afghan/ISAF command facility in Wardak province already on 23 November a ‘revenge attack’.

(2) According to the New York Times, ‘the last government executions in Afghanistan took place in June 2011, when two men convicted of the mass killings at a Kabul Bank branch in the eastern city of Jalalabad were hanged. Before that, the Karzai government executed 15 inmates by firing squad in October 2007 and conducted a single execution in 2004’. On 7 October 2007, when the government also planned to execute 15 persons, one managed to escape during what was described as a ‘chaotic’ execution. The escapee was Timor Shah, a well-known and well-connected criminal sentenced amongst other things for the kidnapping of an international aid worker in 2005. It was strongly suspected at the time that he had bribed his way out. These executions and Timor Shah’s escape resulted in extensive criticism against a corrupt and politicised legal system.

(3) The best source for the current (since then unchanged) legal situation is still: The Death Penalty in Afghanistan, By Antonella Deledda, with the contribution of Ashraf Hegazy and Omid Saffee, Embassy of Italy in Kabul, Development Cooperation Unit, Italian Justice Project Office, 2005. It can be read and downloaded (paid) here (the following quotes from there have been slightly abridged and edited by the author):

The 2004 Afghan Constitution, in line with both the International Covenant on Civil and Political Rights (ICCPR) and the Islamic principles, asserts the right to life in article 23, envisaging at the same time the possibility of its deprivation by the provision of law: ‘Life is the gift of God as well as the natural right of human beings. No one shall be deprived of this except by legal provision.’

Article 7 of the Constitution establishes that ‘The state shall observe the Charter of the United Nations, international treaties, international conventions that Afghanistan is a part to, and the Universal Declaration of Human Rights.’ On 24 April 1983, Afghanistan ratified the ICCPR, but it did not sign its Second Optional Protocol (UNGASS, 29 December 1989) that binds the States parties to abolish the capital punishment.

Another relevant norm of the Constitution, article 129, states: ‘… All final decisions of the courts shall be enforced, except for capital punishment, which shall require presidential approval.’ Thus, the Afghan Constitution defines the death penalty as a complex act, which needs, in order to be enforced, not only a final judicial sentence but also a specific approval by the President.

The 1976 Penal Code, still in force nowadays, identifies the crimes subject to capital punishment in numerous articles, which refer to two main categories: crimes against the security of the State and crimes against individuals, namely certain types of aggravated murder. 

Other provisions of aggravated murder have been included in recent legislation, such as: the Anti Narcotic and Drug Law issued in November 2003, which provides for the death sentence in the case where a drug smuggler, while resisting arrest, kills a law enforcement officer; and the presidential decree of 3 July 2004 that foresees the death penalty for those convicted of child kidnapping and smuggling aimed at using the victim’s body parts whenever a death is caused as consequence.

Crimes punishable by death are also listed in the Law on Crimes against Internal and External Security of 1987, and in the Military Law of 1989, both of soviet inspiration and still in force nowadays. Such crimes are mostly related to the security of the State, especially in time of war. But they also include a wide definition of organized crime (art. 15 of the Law on Crimes against Internal and External Security). The crimes identified by these laws are processed respectively by the National Security Court and by the Military Court.

However, the newly adopted Juvenile Code (Law of Investigation on Children’s Violations, Official Gazette, Issue n. 846, 23 March 2005), that defined as juvenile ‘a person who has completed the age of 12 and has not completed the age of 18’ (Art 4, para 4), clearly states, under article 39, paragraph c, that children cannot be convicted to death penalty. This is in line with both the International Covenant on Civil and Political Rights (ICCPR) and the 1989 Convention on the Rights of the Child (CRC). The ICCPR states in Article 6: ‘Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age.’ The CRC in Article 37 states: ‘Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age’.

Finally, in the Criminal Procedural Code, adopted on February 2005, article 83 regulates the petitions for revision of sentences, stating that ‘Filing a revision petition does not suspend the execution of the protested sentence except in the case of capital punishment.’

(4) The AIHRC, though, has no exact figure as well.

The European Union says in a statement dated 20 November referring to the executions that it ‘believes the perpetrators of such crimes should face a fair trial and prison sentences. […] We call on the Afghan authorities to commute all further death sentences and to reintroduce the moratorium on executions as a first step toward definitive abolition of capital punishment.’

France’s government, however, has stated that, although it opposes capital punishment, it will ‘respect’ an Afghan military court’s decision to sentence an Afghan soldier to death for killing four French troops; the soldier’s appeal has just been rejected in the first instance.

(5) Here the amnesty international list:

Abolitionist and Retentionist Countries:

More than two-thirds of the countries in the world have now abolished the death penalty in law or practice. The numbers are as follows:

Abolitionist for all crimes: 97
Abolitionist for ordinary crimes only: 8
Abolitionist in practice: 35

Total abolitionist in law or practice: 140
Retentionist: 58

Following are lists of countries in the four categories: abolitionist for all crimes, abolitionist for ordinary crimes only, abolitionist in practice (countries with Muslim majority population in bold – added by AAN) and retentionist.

1. Abolitionist for all crimes

Countries whose laws do not provide for the death penalty for any crime

Albania, Andorra, Angola, Argentina, Armenia, Australia, Austria,Azerbaijan, Belgium, Bhutan, Bosnia-Herzegovina, Bulgaria, Burundi, Cambodia, Canada, Cape Verde, Colombia, Cook Islands, Costa Rica, Cote d’Ivoire, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Dominican Republic, Ecuador, Estonia, Finland, France, Gabon, Georgia, Germany, Greece, Guinea-Bissau, Haiti, Holy See, Honduras, Hungary, Iceland, Ireland, Italy, Kiribati, Kyrgyzstan, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Marshall Islands, Mauritius, Mexico, Micronesia, Moldova, Monaco, Montenegro, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niue, Norway, Palau, Panama, Paraguay, Philippines, Poland, Portugal, Romania, Rwanda, Samoa, San Marino, Sao Tome and Principe, Senegal, Serbia (including Kosovo), Seychelles, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sweden, Switzerland, Timor-Leste, Togo, Turkey, Turkmenistan, Tuvalu, Ukraine, United Kingdom, Uruguay, Uzbekistan, Vanuatu, Venezuela

2. Abolitionist for ordinary crimes only

Countries whose laws provide for the death penalty only for exceptional crimes such as crimes under military law or crimes committed in exceptional circumstances

Bolivia, Brazil, Chile, El Salvador, Fiji, Israel, Kazakstan, Peru

3. Abolitionist in practice

Countries which retain the death penalty for ordinary crimes such as murder but can be considered abolitionist in practice in that they have not executed anyone during the past 10 years and are believed to have a policy or established practice of not carrying out executions. The list also includes countries which have made an international commitment not to use the death penalty

Algeria, Benin, BruneiBurkina Faso, Cameroon, Central African Republic, Congo (Republic of), Eritrea, Ghana, Grenada, Kenya, Laos, Liberia, Madagascar, Malawi, MaldivesMaliMauritania, Mongolia, Morocco, Myanmar, Nauru, Niger, Papua New Guinea, Russian Federation, Sierra Leone, South Korea, Sri Lanka, Suriname, Swaziland, Tajikistan, Tanzania, Tonga, Tunisia, Zambia
The Russian Federation introduced a moratorium on executions in August 1996. However, executions were carried out between 1996 and 1999 in the Chechen Republic.

4. Retentionist

Countries and territories that retain the death penalty for ordinary crimes

Afghanistan, Antigua and Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize, Botswana, Chad, China, Comoros, Democratic Republic of the Congo, Cuba, Dominica, Egypt, Equatorial Guinea, Ethiopia, Gambia, Guatemala, Guinea, Guyana, India, Indonesia, Iran, Iraq, Jamaica, Japan, Jordan, Kuwait, Lebanon, Lesotho, Libya, Malaysia, Nigeria, North Korea, Oman, Pakistan, Palestinian Authority, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Singapore, Somalia, South Sudan, Sudan, Syria, Taiwan, Thailand, Trinidad and Tobago, Uganda, United Arab Emirates, United States of America, Viet Nam, Yemen, ZimbabweTranslation needed!


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