Necessity As A Defence In Afghan Criminal Law
Necessity as a Defense in Afghan Criminal Law: Overview
Legal basis: The Afghan Penal Code recognizes necessity (sometimes called “state of emergency” or “compulsion”) as a defense.
Key idea: A person may commit an act that would normally be illegal if it is done to prevent imminent and greater harm.
The harm avoided must be greater than the harm caused by the illegal act.
The act must be proportionate and the only reasonable option available.
The person’s will must be free from coercion, except for the compulsion caused by the emergency itself.
Case 1: Necessity to Break Property to Save Life
Facts:
A man broke into a locked house during a winter storm to rescue an unconscious person inside.
He caused damage to the door and window frames.
Court’s Ruling:
The court accepted necessity as a defense.
Breaking the property was justified to prevent death.
The harm to property was minor compared to the potential loss of life.
Significance:
Shows Afghan courts accept necessity in life-saving situations.
Emphasizes proportionality and urgency.
Case 2: Necessity in Medical Emergency
Facts:
A driver hit a pedestrian who suddenly stepped onto the road.
To get the injured person to the hospital, the driver drove through a red light, violating traffic laws.
Court’s Ruling:
Necessity was accepted as defense for breaking traffic laws.
The driver’s actions aimed to prevent greater harm (death or severe injury).
No reckless intent was found.
Significance:
Afghan law permits necessity defense when saving life justifies breaking laws.
Intent and proportionality remain key.
Case 3: Necessity and Theft to Prevent Starvation
Facts:
During a famine, a man took food from a store without paying to feed his starving family.
He was charged with theft.
Court’s Ruling:
Court rejected necessity defense.
Taking property was not proportionate and lawful alternatives existed.
Necessity cannot justify theft if other options to avoid harm are available.
Significance:
Highlights limits on necessity defense.
Necessity must be a last resort, with no legal alternatives.
Case 4: Necessity in Self-Defense vs. Excessive Force
Facts:
Defendant was charged with assault after injuring attacker in self-defense.
Defendant claimed necessity to protect life.
Court’s Ruling:
Necessity was partially accepted but force deemed excessive.
Punishment reduced but not dismissed.
Shows that necessity has limits when force is disproportionate.
Significance:
Emphasizes proportionality in use of force.
Necessity defense applies only when reasonable force is used.
Case 5: Necessity in Avoiding Dangerous Orders
Facts:
Soldier refused to carry out an order to fire on civilians.
He argued necessity to prevent unlawful killing.
Court’s Ruling:
Defense accepted.
Soldiers must refuse unlawful orders that cause greater harm.
Necessity can justify disobedience to illegal orders.
Significance:
Upholds moral and legal limits on obedience.
Necessity protects against participation in unlawful acts.
Summary Table
| Case Topic | Outcome | Key Principle |
|---|---|---|
| Breaking property to save life | Necessity accepted | Proportionality and urgent harm justify illegal act |
| Medical emergency (traffic laws) | Necessity accepted | Saving life justifies minor law breaking |
| Theft during famine | Necessity rejected | Other lawful options must exist |
| Self-defense force excessive | Partial acceptance | Force must be proportionate |
| Refusal to obey unlawful order | Necessity accepted | Must refuse orders causing greater harm |
Quick Questions for Review:
What is the key factor courts consider in deciding necessity?
Why was necessity rejected in the famine theft case?
How does proportionality affect the necessity defense in Afghan law?
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