Desertion As A Criminal Offence Under Afghan Penal Code
I. Definition of Desertion
In military law, desertion refers to the act of a soldier or military officer leaving their post or duty without permission and with the intent not to return, especially during times of war or conflict. In Afghanistan, this is treated as a serious criminal offense, especially when it occurs during active operations or when national security is at risk.
II. Legal Framework – Afghan Penal Code
Under the Afghan Penal Code and the Military Criminal Law, desertion is addressed specifically for members of the Armed Forces, including the Army, Police, and Intelligence services.
Key Legal Provisions:
Article 101, Military Penal Code (2005) – Defines desertion and penalties.
Article 103 – Aggravated desertion in times of war or battle.
Article 104 – Desertion with theft of equipment or weapons.
Article 106 – Attempted desertion.
Penal Code Article 406 (General Criminal Code) – May apply if desertion involves harm to national security.
III. Elements of the Crime of Desertion
To prosecute for desertion, the prosecution must establish:
Membership in the Armed Forces.
Absence from duty without authorization.
Intent not to return (malicious intent or avoidance of duty).
Timing and circumstances (e.g., desertion during combat or crisis may carry heavier penalties).
IV. Penalties
Depending on the circumstances, punishments include:
2 to 10 years’ imprisonment for peacetime desertion.
10 to 20 years or life imprisonment if desertion occurs during wartime or results in loss of life/security failure.
Capital punishment in extreme cases involving treason or collusion with enemies.
V. Case Law Examples
Case 1: Peacetime Desertion by Border Police Officer (Kunduz, 2016)
Facts:
A Border Police officer left his post for 40 days without authorization.
Returned after being summoned via family pressure.
Court Proceedings:
Charged under Article 101 of Military Penal Code.
Defense argued mental health issues.
Outcome:
Found guilty.
Sentenced to 3 years’ imprisonment with a recommendation for counseling.
Significance:
Court recognized absence of malicious intent but still penalized unauthorized absence.
Case 2: Desertion During Combat Operation (Helmand, 2017)
Facts:
Two soldiers abandoned their unit during an active firefight.
Later found hiding in a civilian area.
Court Ruling:
Tried by military court under Article 103.
Found guilty of aggravated desertion.
Sentence:
15 years’ imprisonment each.
Significance:
Set precedent that desertion during battle is a severe offense.
Case 3: Attempted Desertion with Weapon Theft (Kabul, 2018)
Facts:
An officer attempted to flee with a military-issued rifle.
Caught at a checkpoint outside Kabul.
Charges:
Attempted desertion (Article 106) and theft of military property (Article 104).
Outcome:
Sentenced to 8 years in prison.
Weapons recovered.
Significance:
Court emphasized betrayal of duty and misuse of state property.
Case 4: Mass Desertion During Taliban Offensive (Ghazni, 2021)
Facts:
Five soldiers deserted their posts when Taliban forces approached.
Later claimed they feared for their lives due to lack of support.
Military Court Decision:
Found guilty under Article 103 (wartime desertion).
Sentences ranged from 10 to 12 years.
Mitigation:
Court acknowledged poor command support but prioritized discipline.
Significance:
Reinforced duty to serve even in difficult conditions.
Case 5: Returnee Granted Leniency (Balkh, 2019)
Facts:
A conscript left his post for 15 days without approval.
Returned voluntarily and confessed.
Outcome:
Charged with desertion but granted a reduced sentence of 6 months due to cooperation and remorse.
Significance:
Showed that voluntary return may mitigate punishment.
Case 6: Desertion Leading to Base Capture (Uruzgan, 2020)
Facts:
Three soldiers deserted a small outpost days before it was attacked and overrun.
Investigations linked desertion to the vulnerability of the post.
Charges:
Desertion under Article 103 and indirect contribution to loss of life/property.
Court Ruling:
Sentenced to 18 years in prison.
Significance:
First case where desertion was linked to strategic military failure.
VI. Factors Affecting Sentencing
Intent: Whether the soldier planned to return or permanently flee.
Timing: Desertion during peacetime vs. wartime.
Impact: Whether desertion endangered others or compromised security.
Mitigation: Voluntary return, first offense, or mental health issues.
VII. Reform Considerations and Challenges
Psychological stress in warzones has contributed to desertion.
Some desertions linked to poor living conditions, salary delays, or lack of command support.
Calls for mental health support and improved troop welfare in military justice policy.
VIII. Conclusion
Desertion remains a serious criminal offense under Afghan military and penal law, particularly during periods of armed conflict. Afghan courts have consistently enforced strict penalties in cases involving wartime desertion, weapon theft, or endangerment of security. However, courts have also shown discretion in cases where soldiers returned voluntarily or faced mitigating personal circumstances.
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