Application Of Iccpr In Afghan Criminal Law
Application of ICCPR in Afghan Criminal Law
Afghanistan’s 2004 Constitution and Criminal Procedure Code provide for the incorporation of international treaties, including the ICCPR. Article 7 of the Afghan Constitution specifically states:
"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."
Therefore, the ICCPR is considered part of Afghan law and should be applied in courts, particularly where domestic law is vague or silent. However, in practice, the implementation is inconsistent due to political instability, judicial corruption, lack of legal training, and conflicting interpretations of Sharia law.
Key Provisions of ICCPR Relevant to Afghan Criminal Law:
Right to life (Article 6)
Prohibition of torture and cruel treatment (Article 7)
Right to liberty and security of person (Article 9)
Right to fair trial (Article 14)
Rights of detainees and prisoners (Article 10)
Equality before the law and non-discrimination (Article 26)
Case Law Illustrating the Application of ICCPR in Afghan Criminal Law
Here are detailed examples of how ICCPR provisions have (or should have) influenced decisions or controversies in the Afghan criminal justice system:
1. Farkhunda Malikzada Case (2015)
Facts:
Farkhunda, a 27-year-old woman, was falsely accused of burning the Quran and lynched by a mob in Kabul. The police failed to intervene effectively. Her killing was caught on video and sparked national and international outrage.
ICCPR Violations:
Article 6: Right to life.
Article 7: Prohibition of torture or cruel treatment.
Article 9: Arbitrary deprivation of liberty and life.
Article 14: Right to a fair trial (mob justice replaced judicial process).
Outcome:
Several perpetrators were initially sentenced to death or long prison terms, but most of the convictions were later reduced or overturned. Many police officers faced disciplinary action for failing to act.
Analysis:
This case illustrated systemic failures in protecting life, due process, and equality before the law. It highlighted the lack of enforcement of ICCPR standards, particularly concerning state obligations to prevent violations by non-state actors (mob violence) and ensure accountability.
2. Shukria Barakzai Case (Attempted Assassination - 2014)
Facts:
Barakzai, a prominent MP and women’s rights advocate, survived a suicide attack in Kabul. She had previously received threats for her advocacy work.
ICCPR Relevance:
Article 6: Right to life.
Article 19: Freedom of expression.
Article 26: Equal protection and non-discrimination.
Analysis:
Though she survived, the case highlighted state failure to protect political figures, particularly women, from targeted attacks. It also raised concerns about the lack of proper investigation and prosecution in politically sensitive cases. The ICCPR obligates the state to take positive measures to protect individuals under threat, especially those targeted for exercising their freedom of expression.
3. Hamidullah Khan Case (Juvenile Detention in Guantanamo - Afghan Citizen)
Facts:
Hamidullah Khan, reportedly 14 years old when detained in Pakistan and later transferred to Guantanamo Bay, was eventually repatriated to Afghanistan after several years without trial.
ICCPR Violations:
Article 9: Arbitrary detention.
Article 14: Right to a fair trial.
Article 24: Special protection for minors.
Analysis:
While the U.S. was responsible for detention, Afghanistan's lack of legal or diplomatic action to protect its citizen violated the spirit of the ICCPR. Afghanistan has an obligation to protect its citizens from such abuses and ensure accountability or remedy upon their return.
4. Zakia and Mohammad Ali Case (2013) – Elopement and Forced Marriage
Facts:
Zakia, a Hazara woman, eloped with Mohammad Ali, her Sunni lover, to avoid a forced marriage arranged by her family. They were arrested and faced criminal charges for "adultery" or "running away", though Afghan law doesn't criminalize consensual elopement.
ICCPR Relevance:
Article 23: Right to freely marry and found a family.
Article 17: Right to privacy.
Article 14: Fair trial guarantees.
Article 26: Equal protection and non-discrimination.
Analysis:
This case highlighted misuse of customary law and social pressure in criminal proceedings. Under ICCPR, Afghanistan must ensure non-discrimination, especially against women, and protect the right to privacy and family life. The charges were eventually dropped, but only after media and international pressure.
5. Women in Badam Bagh Prison – “Moral Crimes” (Ongoing Issue)
Facts:
Hundreds of women have been imprisoned for so-called “moral crimes” such as running away from home, zina (adultery), or refusing forced marriages—even though Afghan law does not criminalize some of these actions.
ICCPR Violations:
Article 9: Arbitrary arrest/detention.
Article 14: Right to defense and legal aid.
Article 17: Privacy and personal autonomy.
Article 26: Gender equality.
Analysis:
This systemic abuse reflects a disconnect between formal law and conservative judicial practice. The continued imprisonment of women for moral crimes violates ICCPR protections, especially when trials are rushed, without legal representation, or held in secret.
6. Abdul Basir Case (Death in NDS Custody – 2009)
Facts:
Abdul Basir, accused of links to insurgents, died in the custody of Afghanistan’s National Directorate of Security (NDS). Authorities claimed suicide; human rights groups and his family alleged torture.
ICCPR Relevance:
Article 6: Right to life.
Article 7: Prohibition of torture.
Article 10: Humane treatment of detainees.
Article 14: Right to legal recourse.
Analysis:
The lack of transparent investigation and the NDS's broad unchecked powers demonstrated serious breaches of ICCPR. Torture in detention remains a persistent concern in Afghan criminal practice, often without accountability.
Conclusion
While Afghanistan has formally committed to the ICCPR, actual implementation in criminal law and practice remains problematic. The cases above show:
Frequent violations of fair trial standards.
Arbitrary and gender-biased detentions.
Weak accountability mechanisms for police, intelligence, and judicial abuses.
Mob justice and social customs often override legal safeguards.
The ICCPR should serve as a benchmark for reform, judicial training, and advocacy. Strengthening institutions and ensuring judicial independence are critical to enforcing these rights in Afghan criminal law
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