Convention Against Torture And Afghan Compliance
1. Human Rights Watch Submission to the Universal Periodic Review of Afghanistan (2018)
Key Findings:
Impunity for Torture: Despite Afghanistan's ratification of the CAT and incorporation of anti-torture provisions into domestic law, there is a pervasive culture of impunity. Reports indicate widespread use of torture by Afghan security forces, including beatings, electric shocks, and sexual abuse, often to extract confessions.
Legal Inconsistencies: Amendments to the Criminal Procedure Code allow detention without judicial oversight for up to 70 days in cases involving national security offenses. This provision increases the risk of torture and undermines the safeguards against ill-treatment.
Significance: This submission underscores the gap between Afghanistan's international commitments and domestic practices, highlighting the need for comprehensive reforms to align with CAT obligations.
2. Afghanistan's Penal Code and Torture Provisions
Legal Framework:
Prohibition of Torture: Afghanistan's Penal Code explicitly prohibits torture by public officials, mandating punishment for those found guilty.
Detention Regulations: Articles 414 and 415 of the Penal Code impose penalties on unauthorized arrests and detentions, including those by individuals impersonating law enforcement.
Challenges:
Enforcement Issues: While the legal framework exists, enforcement remains inconsistent. Reports indicate that torture continues in detention facilities, often without accountability for perpetrators.
Significance: The existence of legal provisions against torture is a positive step; however, the challenge lies in effective implementation and accountability mechanisms.
3. CAT Communication No. 123/1998 (Afghanistan)
Case Summary:
Background: An Afghan national, fearing torture upon return to Afghanistan, challenged his deportation under Article 3 of the CAT.
Committee's Decision: The UN Committee Against Torture found that the complainant had a well-founded fear of torture and that the deportation would violate CAT obligations.
Significance: This case illustrates the application of the non-refoulement principle, emphasizing that states must not expel individuals to countries where they face a real risk of torture.
4. Afghanistan's Record on Torture Under UN Scrutiny
Observations:
Widespread Abuse: The UN Committee Against Torture has expressed grave concern over the widespread use of torture in Afghanistan, particularly by the National Directorate of Security and local police forces.
Lack of Accountability: There is a significant gap in holding perpetrators accountable, with many cases of torture going uninvestigated or unpunished.
Significance: International scrutiny highlights the urgent need for Afghanistan to strengthen its institutions and legal frameworks to combat torture effectively.
5. Afghanistan's Reservations to the CAT
Legal Position:
Article 20 Reservations: Afghanistan has not recognized the competence of the CAT Committee to receive and consider communications under Article 20, which pertains to inquiries into systematic practices of torture.
Article 30 Reservations: Afghanistan has also made reservations regarding the compulsory jurisdiction of the International Court of Justice under Article 30, limiting the scope of dispute resolution mechanisms.
Significance: These reservations reflect Afghanistan's cautious approach to international oversight, potentially hindering comprehensive international scrutiny of its human rights practices.
Conclusion:
Afghanistan's journey towards full compliance with the Convention Against Torture is marked by significant legal commitments juxtaposed with persistent challenges in implementation. While the country has established legal frameworks prohibiting torture and ratified international conventions, the effectiveness of these measures is undermined by issues such as impunity, inconsistent enforcement, and limited international cooperation. Strengthening institutional capacities, ensuring accountability, and engaging more fully with international human rights mechanisms are crucial steps towards aligning Afghanistan's practices with its international obligations under the CAT.
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