Source:

Frankfurter Rundschau: Executions, stonings and amputations [ID 805]

"Auch nach dem Sturz der Taliban wird es in Afghanistan öffentliche Hinrichtungen geben. Exekutionen, Steinigungen und Amputationen entsprächen dem islamischen Recht, der Scharia, und würden beibehalten, sagte ein Richter des Obersten Tribunals in Kabul, Ahamat Ullha Sarif, am Dienstag. In Zukunft sollten die Hinrichtungen jedoch "gerecht und milde" sein. So würden Gehenkte nicht wie bei den Taliban vier Tage am Galgen gelassen, sondern vermutlich nur eine Viertelstunde, sagte Sarif.
Verurteilte Ehebrecher sollten weiterhin gesteinigt werden. Die neuen Machthaber wollten aber kleinere Steine als die Taliban verwenden, sagte der Richter. So erhielten die Verurteilten eine Chance zur Flucht. "Wenn sie entkommen, sind sie frei." Nur wer sein Verbrechen nicht gestehe, werde an Händen und Füßen gefesselt und sei deshalb dem sicheren Tod geweiht."

Source:

Stoning and public executions will continue under the new government [ID 806]

The German Foreign Office comments on statements of Supreme Justice, according to whom stoning and public executions will continue under the new government

"Im islamischen Strafrecht anerkannte schwere Körperstrafen (Amputation, Kastration, Sterilisierung, Blendung) und öffentliche Hinrichtungen sind grundsätzlich nach im Westen herrschender Rechtslehre (so Zivilpakt--Kommentar von Manfred Nowak, 1989) als unmenschliche und/oder grausame Strafe zu qualifizieren. Damit liegt eine Verletzung von Art. 7 ("Folterverbot") der Zivilpaktes der Vereinten Nationen ("Pakt über bürgerliche und zivile Rechte" vom 16.12.1966) vor, der fordert, dass "niemand der Folter oder grausamer, unmenschlicher oder erniedrigender Behandlung oder Strafe unterworfen werden" darf. AFG hat den Pakt am 24.01.1983 ratifiziert. In besonders grausamen Fällen wie insbesondere verschärften Formen der Vollstreckung eines Todesurteils (z.B. durch Steinigung) ist ebenfalls der Tatbestand der Folter erfüllt, da Art. 1 der VN-Folterkonvention ("Int. Konvention gegen Folter und andere .... unmenschliche Behandlung" vom 10. 12.1984) die Strafe ausdrücklich als mögliches Kriterium nennt. AFG hat auch das Folterabkommen (CAT) ratifiziert."

14.08.2003 - Source: Amnesty International

Judges currently apply a mixture of Sharia law, Afghan customary law and statutory law; lack of clarity regarding the relationship between the different sources of law ("Afghanistan: Re-establishing the rule of law") [#15047],  [ID 801]

"In adjudicating criminal cases, judges are currently applying a mixture of Sharia law, Afghan customary law and statutory law. However, there is an evident lack of clarity regarding the relationship between the different sources of law and how to resolve conflicts, if any, between the different sources.
Lack of understanding and clarity surrounding the applicable law is further compounded by weak knowledge amongst some members of the judiciary of both statutory and Sharia law. Noting the problem, one legal expert stated that “many judges do not have a basic knowledge of the criminal code and the criminal procedure code that are in force”. In addition, one judge informed Amnesty International delegates that “judges state that they are applying Sharia, however, the majority of my colleagues have little knowledge of Sharia and invoke Sharia law in order to justify an illegal act”. Afghan law currently also contains a number of human rights protections. However, Amnesty International noted that there was also poor understanding and awareness of these provisions.
Confusion regarding the applicable law is intensified by a noticeable lack of statutory compilations and other legal materials in the courts. None of the courts visited by Amnesty International held a full collection of the law and most primary instance courts had copies of only the criminal code and the traffic law. The IDLO has compiled copies of the applicable laws but does not have the resources to distribute these compilations of legal texts to the courts. The failure to implement comprehensive legal training has exacerbated the problems. The JRC has recognised the need for legal reform and it has convened working groups, which have started to review existing laws, including the criminal code and the criminal procedure
code. Once drafting is completed, the JRC will submit these draft codes to the Ministry of Justice, which has the ultimate authority to amend and promulgate new or existing law. However, neither the JRC nor the Ministry of Justice currently have experts in international human rights law who are in a position to review the laws from an international human rights law perspective. When Amnesty International asked the JRC what capacity existed to ensure that the laws were reviewed and amended in line with international human rights law, the organisation was informed that the JRC had “given the panel responsible for drafting the laws a copy of the Amnesty International Fair Trials Manual”.
The Canadian government has recently pledged to place a team of legal drafting experts within the Ministry of Justice. This pledge, if implemented, represents a positive step forward. In particular, the organisation welcomes the commitment to identifying experts who are able to assist and amend law from an international human rights law perspective."

Document(s): Open document

07.03.2003 - Source: Danish Immigration Service

Criminal law is Sharia law ("The Political, Security and Human Rights Situation in Afghanistan: Report on fact-finding mission to Kabul and Mazar-i-Sharif, Afghanistan and Islamabad, Pakistan; 22 September - 5 October 2002") [#11326],  [ID 802]

"The Director of Secretariat of the human rights commission and the Commissioner said that the Sharia applies at all levels. The criminal law is Sharia law. It will therefore be a great challenge to incorporate human rights into the Sharia laws. All legislation in Afghanistan is Sharia law or civil law, but the Taliban abused the Sharia laws. As an example the sources mentioned that according to the Sharia laws there are 21 requirements which must be met before amputation can occur, and similarly there must be four witnesses to infidelity before it can be punished. According to the sources, in practice it would be impossible to comply with all requirements to apply the punishments prescribed by the Sharia laws. Neither before nor after, were the Sharia laws applied as they were under the Taliban regime."

Document(s): Open document

30.07.2002 - Source: Washington Post

Washington Post: Justices favor continuing with Sharia ("Afghanistan Struggles With Reforms") [#8047],  [ID 803]

"In Afghanistan, judicial reforms won't be easy. There are few law books, many judges are past retirement age, crime is up and centuries-old tribal laws intermingled with Islamic injunctions hold sway. Still, many Afghan judges say the new legal system is fairer than the law under the Taliban. The Taliban espoused a harsh brand of Islam that most Islamic scholars said reflected tribal traditions rather than Muslim tenets. Punishments included the amputation of hands of convicted thieves and the execution of murderers. "During the Taliban, justice was swift, but cruel," said Maulvi Rahmatullah, one of the judges sitting on Bari's case. Rahmatullah is an Islamic cleric, as were many of the judges under the Taliban. Rahmatullah and many other justices favor continuing with Islamic law, or Shariah. But they would like to improve evidence-gathering methods and they prefer open trials. Western governments have been arguing for a new secular legal code, but Chief Justice Abdul Hadi Shinwari has said Shariah will become the law of the land. In an interview with The Associated Press last week, Shinwari said the new system will require the burden of proof to be on the prosecution. He would also like to shorten the time people are held before facing trial. In southern city of Kandahar, the stronghold of the Taliban movement, prisoners say they are held for months without being charged. Most have been arrested since the departure of the Taliban."

Document(s): Open document

19.12.2001 - Source: Radio Free Europe/Radio Liberty

Koran remains the primary source of the country's laws; interpretation of those laws will be far more humanely than under Taliban ("Afghanistan: More Moderate System Of Islamic Law To Return") [#28993],  [ID 804]

"Zalmay Payenda is a supreme court judge who was fired from his post by the Taliban and now is back at work in his chambers. He is still awaiting official reappointment to his post, and he has yet to be paid a salary again. But already he and many other returning judges are looking forward to issuing their first court verdicts and bringing Afghanistan closer to the mainstream of Muslim legal systems. Payenda says Afghanistan will always have a legal system based upon the Koran, which, along with the sayings and traditions of the Prophet Mohammad, is the primary source of the country's laws. But he says that the returning judges will interpret those laws far more humanely than the Taliban would have tolerated. (…) The judge says that flexibility comes from the fact that while Islamic law prescribes amputation of the hand for theft, for example, the Prophet Mohammad also said the guilty should be helped to mend their ways. That means that judges can look for the best ways to rehabilitate a criminal and take that into consideration when passing sentence. Payenda says this does not mean that public executions will disappear entirely in Afghanistan. Many judges here believe in the need for such executions -- usually by hanging -- to set a public example of the penalties for the most severe crimes. But he says such executions will be far rarer than during the time of the Taliban, which used them to punish both criminals and political opponents and to terrify the public. Similarly, he says judges may continue to sentence thieves to amputations, but only as the maximum sentence and in the absence of extenuating circumstances that would usually reduce the penalty to imprisonment. The stoning to death of those suspected of committing adultery is likely to disappear altogether, as courts return to requiring that there be four male witnesses or eight female witnesses to the act of adultery. That requirement, set by Islamic law to prevent false accusations, is almost impossible to meet legally, though this was regularly ignored by Taliban courts. Hamid Karzai, the man chosen to lead Afghanistan's interim government, today said he would apply tough Islamic law to common criminals as part of his efforts to restore peace and security in the war-torn country. Karzai, speaking in Rome where he was meeting with former Afghan King Mohammad Zahir Shah, said he would urge greater compassion in Afghanistan but that the rule of law must be enforced."

Document(s): Open document