Afghanistan: Death Penalty at the Crossroads
Art Cody and Dominique Day1
Capital punishment in Afghanistan serves as an interesting microcosm of the rule of law, juxtaposing religious fervour, judicial system immaturity and political realities. Actual use of the death penalty is at a crossroads, with Afghanistan’s de facto moratorium abruptly upset by a November 2012 rash of executions. Still, widespread executions during the Taliban regime have given way to a more tempered application of capital punishment. While popular support for retribution and stringent application of Sharia, or Islamic law, drives capital sentencing, executions are infrequent and generally in response to vox populi calls after particularly heinous events.
The Afghan judicial system continues to mature. Capital and non-capital cases proceed through the justice system nearly identically, thus examination of the capital trial and sentencing schemes reveal the challenges facing the Afghan judicial system as a whole. Capital trials in Afghanistan are abbreviated affairs with limited, if any, presence of defence counsel, and the ever-present spectre of corruption. Afghanistan’s capital litigation does not require enhanced judicial scrutiny, better-trainedcounsel or ensure a non-corrupt process. Indeed, corruption and due process concerns are magnified by the possibility of execution. Despite the irrevocable sanction, capital cases receive no special treatment beyond the requirement that the president issue a death warrant prior to execution. Afghanistan’s government under President Hamid Karzai, aware of the Taliban’s record of brutality, has limited state-sponsored executions.
Executions, as discussed below, offered a vivid representation of the Taliban approach to rule of law. The current government’s desire to appear more humane than the Taliban, an important driver of its reluctance to execute, is reinforced by the international community. European donor nations, in particular, disdain executions or, at a minimum, require greater due process requirements prior to execution. For the last ten years, Afghanistan has moved away from capital punishment, despite its apparent popularity among Afghans, as part of a strategy to avoid comparison to the Taliban and to demonstrate its status as an emerging member of the international community. From November 2008 to November 2012, there were two hangings, both in response to a high-profile 2011 mass murder. The revival of the death penalty in November 2012, characterized by 16 executions in one week, is a departure from de facto abolition, and may signal a change in policy. In addition, President Karzai, a moderating influence on the execution rate, faces a mandatory term limit and must vacate his office in 2014. The post-2014 drawdown of Coalition troops in Afghanistan also plays into this analysis. The November spate of executions, combined with uncertainty of the political and security landscape post-2014, renders the Afghan government’s intended path forward increasingly unclear. Regardless, Afghanistan stands at a crossroads, and must choose between the clear international trend away from use of the death penalty, even by countries that retain it ‘on the books’, and the perceived popularity of the death penalty amongst the Afghan populace.
I. Historical Perspective on Afghanistan’s Death Penalty
Despite a decade of reconstruction and rule of law development, modern Afghanistan is defined by the thirty years of civil war during which most adult Afghan nationals came of age. Adult Afghans sometimes refer to themselves as the ‘war generation’ and recount their children’s ridicule as they purchase and store excess goods in preparation for putative shortages. Culturally, modern Afghanistan is more conservative than pre-civil war Afghanistan; young women and men are more conservative than their parents. Prior to the civil war, during the forty-year rule of King Mohammed Zahir Shah, capital punishment was rare.2 Like today, execution required approval of the executive, and the King was reportedly reluctant to issue death warrants.3
Today, tempered application of the death penalty is apparent as the government continues to distance itself from the draconian punishments that characterized the Taliban era. Under the Taliban, which governed Afghanistan from 1992 to 2001, capital punishment was exercised for a wide variety of transgressions, and generally in the name of Islam. Married women charged with zina (non-marital sex, commonly translated as ‘adultery’) were subject to death by stoning or flogging. Persons engaging in homosexual behaviour were executed by being partially buried in the ground and then having a wall toppled on top of them.4 Murderers and opponents of the regime faced summary execution.5 Taliban justice was often rooted in misinterpretations of Islamic Sharia6 that closely mirrored pashtunwali7 and ‘customary law’ practices common in locales where Kabul institutions had limited reach and even more limited authority.
Even before the Taliban (and throughout Afghanistan even today), customary law was dominant outside urban areas.8 Exploitation of rural goods produced for trade, delays in ‘exporting’ education and the unwillingness of Kabul to empower leaders dispatched to the localities contributed to the steadfast hold customary law maintained throughout Afghanistan.9 Later, during thirty years of civil war, the absence of state institutions was familiar to many Afghans.10 Afghans accepted ‘revenge killings’ and ‘honour killings’, creating a quasi-official capital punishment in the informal justice system. Formal laws and courts existed, but traditional dispute-resolution resolved conflicts.11 Mujahadeen commanders and local leaders would hold jirgas or shuras12 when presented with malfeasors. Capital punishment was imposed for crimes including murder, adultery, or collaboration with the communist regime (treason).13
Customary laws, implemented in communities where Islamic identity was paramount, were sometimes wholly inconsistent with Islamic principles, but nevertheless gained popularity. Quoting the Attorney General at the time, Ahmed Rashid decried the tendency to supplant Sharia’s moral guidance for adequate law: ‘The Taliban were right, their interpretation of Islam was right and everything else was wrong and an expression of human weakness and a lack of piety. “The Constitution is the Shari’a so we don’t need a constitution.”’14 Abdou Filali-Ansary also sets forth the central conflict arising from the erroneous conclusion that Sharia was a system of laws guaranteeing ‘law and order’, rather than a model for Muslim life.15 ‘[S]hari’a was never a system of laws in the sense which it is understood nowadays …. [Islamic law] embodies moral and quasi-moral precepts not enforceable in any court.’16 As such, Sharia offers insufficient guidance to implement a fully legitimate system of justice; ‘customary law’ supplemented and, in Afghanistan, contradicted fundamental precepts of Sharia.17 Taliban and pre-Taliban implementation of the death penalty in Afghanistan offers compelling examples of this dangerous dichotomy.
As the Taliban gained power, seizing control of the central government by the early 1990s, it commenced widespread executions in the name of Islamic justice18 and played out the conflict between the limits of Sharia and the wide-ranging enforceability required for a modern justice system. Under Sharia, crimes explicitly enumerated in the Quran face mandatory penalties. These ‘crimes against Islam’, or hudud crimes, include theft, robbery, murder, adultery, drinking alcohol, apostasy/blasphemy and defamation. Depending on the circumstances, capital punishment is permitted or mandatory for certain hudud crimes,19 although generally not as employed by the Taliban regime or pashtunwali communities (even today).20 Qasas crimes, derived from the Quran but not defined by it, are referred to as crimes of retribution. Finally, tazir crimes, misconduct not explicitly set forth in the Quran, form the basis of the current Afghan Penal Code and its current revision. Capital punishment is possible for hudud, qasas and tazir crimes. Importantly, recognizing Sharia analysis is not an effective or practical recourse, Paragraph 130, Section 1 of Afghanistan’s Constitution requires judges to confine analyses to codified law, and not to supplant charges or evidence with Sharia jurisprudence unless no law exists to address a transgression.
The inadequacy of Sharia for the wide range of criminal fact patterns faced by modern states is tacitly acknowledged by most Islamic countries, even non-secular ones:
In almost all countries with substantial communities of Muslims, positive law has replaced shari’a …. Modern institutions – nation-states, modern bureaucracies, political parties, labour unions, corporations, associations, educational systems – have been adopted everywhere while traditional institutions are, at best, relegated to symbolic roles.21
Although the Taliban enjoyed the rhetoric of Islamic penalties imposed by an Islamic state, they failed to acknowledge that strict implementation of Sharia principles generally proves inadequate for modern states.22 For example, while death by stoning is an available penalty for married adulterers, the required quantum of proof is four eyewitnesses to the illicit sexual activity (impossible by design, some Sharia scholars argue). To preserve the relevance of Islamic law to daily life, modern Muslim countries have codified criminal law and procedure, incorporating Sharia considerations and compliance into affirmative legislation.23 For example, adultery, where criminalized, is typically punished by a period of imprisonment based on ordinary proof, rather than immediate execution.
Taliban state-sponsored executions often lacked adequate evidence according to Sharia. Taliban executions evidence a stark disparity between the penalties imposed and the Islamic justice they purported to represent.24 The 1999 public execution of a mother of seven, convicted of killing her abusive husband, occurred against the will of her husband’s family (which informed the Taliban they had forgiven her, in accordance with Islamic principles, allowing them to stop the execution).25 The Taliban proceeded with the execution, citing public expectations.26 The execution was reported widely,27 and a video reached the Internet.28 Taliban justice highlighted the unsuitability of Sharia as a justice system for a nation-state: ‘the Taliban’s rejection of this secularized state model … proved a low ebb for Islamic jurisprudence … they proved incapable of actually administering the complexities of shari’a law’.29 And in fact, Sharia was not evolved to offer a complex and modern criminal justice system. The Taliban frequently cited Islam to impose a harsh sanction, but failed to ensure evidence or alternatives clearly set forth in Islamic jurisprudence were applied.
Even as the Taliban regime ended, its central failure to establish a working state structure continued to render its actions, including frequent executions, seemingly haphazard and ungrounded from recognizable Islamic justice. Rashid notes this central failure in the justice system:
the Taliban refuse[d] to define the Afghan state they want[ed] to constitute and rule over, largely because they [had] no idea …. The lack of a central authority, state organizations, a methodology for command and control and mechanisms which can reflect some level of popular participation … ma[de] it impossible for many Afghans to accept the Taliban ….30
With the fall of the Taliban in 2001–2002, rule of law development in Afghanistan has relied on laws pre-dating the wars, rather than revisions to codified laws used by the Taliban government.
II. The Current State of the Death Penalty in Afghanistan
Legal Basis for Capital Punishment
Today, the death penalty in Afghanistan is imposed under the 1976 Penal Code. Penal Code Article 395 sets forth mandatory death sentences for certain categories of murder,31 akin to statutory ‘special circumstances’ which render crimes eligible for the death penalty in the United States.32 In addition to these crimes for which the death penalty is required, Afghan judges may impose death in any murder under a catch-all provision.33 The Penal Code also sets forth various non-homicide bases for the death penalty, including offences related to treason.34 Other laws, including the Law to Eliminate Violence Against Women (LEVAW),35 permit or mandate death sentences in specific circumstances. Notably, adulterers are rarely subject to capital punishment.36
The Penal Code allows for reductions in sentence even for crimes with mandatory capital sentences. Section 143 allows extenuating circumstances to reduce a capital sentence to continued imprisonment.37 Continued imprisonment, the longest prescribed imprisonment term, is 16–20 years.38 Relief from a capital sentence is also available through presidential pardon; in Afghanistan, the executive typically issues pardons for various categories of offences and sentences (as opposed to individual persons) during the Eid festivals in honour of the birthday of the Prophet Mohammed and on other occasions. In addition, Afghanistan officially adheres to widely internationally practised exclusions from the death penalty, including juveniles, pregnant women, and mentally retarded and mentally ill persons,39 although a 17-year-old was hanged for the 2011 mass murder discussed above.40
The Sentencing Process
There are no jury trials in Afghanistan, and a death sentence may be imposed by a single judge as a result of a trial in a district criminal court in any of the country’s 400 districts.41 Appeals are permitted in all criminal cases. There are two levels of appeal. Initially, an intermediate provincial appellate court presiding in each of Afghanistan’s 34 provinces hears the case de novo on all issues (fact and law), then the Supreme Court of Afghanistan in Kabul conducts a final review.42 Both the prosecution and the defence can appeal, and the review on appeal is de novo. Thus, a defendant may be found not guilty by a local judge, but receive a death sentence at the ‘second’ or appellate court upon the government’s appeal.43 That sentence can then be appealed to the Supreme Court by the defendant or the prosecution. Under Afghan law, any combination of exoneration/condemnation is possible.
After a sentence of death, Article 129 of Afghanistan’s Constitution requires presidential approval of all decisions resulting in capital punishment.44 If the president refuses to authorize execution, the case returns to the Supreme Court for re-sentencing, likely to be ‘continued imprisonment’.45 More frequently, unsigned execution orders sit on the president’s desk indefinitely awaiting approval.46 With presidential authorization, swift execution follows.47
The Death Penalty Since the Fall of The Taliban in 2001
Capital punishment in Afghanistan was not abolished after the fall of the Taliban, but it fell into disfavour given the frequency and brutality of Taliban-sponsored executions, concerns over shortcomings in the fledgling Afghan judicial system, and international norms rejecting capital punishment.48 Article 23 of the Afghan Constitution recognizes that life is ‘the natural right of human beings’ and that ‘no one shall be deprived of [life] except by legal provision’.49 After taking power in late 2001, President Karzai’s government observed a self-imposed moratorium that lasted until 2004.
In 2004, in the first execution since the fall of the Taliban, Abdullah Shah, a former warlord convicted of 20 murders, was executed by a gunshot to the back of the head.50 The execution was criticized broadly on both due process and abolitionist grounds. Due process concerns included Shah’s secret trial, the lack of an opportunity to present a defence, corruption and pressure from the Supreme Court to impose the death sentence.51 Despite Shah’s conviction, widespread speculation suggested that the execution was approved to preclude potential testimony against powerful political leaders.52 Reportedly, President Karzai was reluctant to sign the death warrant, but did so “in the interest of justice.”53
Three years later, on 7 October 2007, as concern over widespread violence grew, President Karzai authorized the executions of 15 men.54 The hastily planned en masse executions became a public debacle involving fleeing inmates, an escaped prisoner and mangled bodies. Timor Shah, a convicted murderer, escaped – allegedly with the help of three guards.55 Unexpectedly, police were not allowed access to the execution site and had to find a new site as daylight faded.56 Prisoners were denied final ablutions and prayer, and were killed haphazardly as police unleashed bullets into the crowd of 15 remaining prisoners, some of whom tried to escape like Shah.57 In the end, ‘[s]ome of the dead were disfigured and unidentifiable’.58
Public outcry over the mass shooting generated discussion about the death penalty and its implementation in Afghanistan in the international community.59 Afghanistan changed the means of execution, but did not abandon the practice. In December 2008, the Afghan government conducted approximately 17 executions by hanging, generating international indignation, including due process concerns raised by Amnesty International, which called for an immediate moratorium: ‘The sudden rush in executions is of serious concern, given that Afghanistan’s fledgling justice system is largely incapable of providing fair and sound trials.’60 At the time, the Afghan government seemed intent to continue with frequent executions, yet returned to a pseudo-moratorium after the 2008 executions.61
Afghanistan’s self-imposed two-and-a-half-year ban on executions ended on 11 June 2011 with the hangings of two men convicted in the killings of 40 Afghans in a Jalalabad bank in February 2011.62 The crime involved was alleged to have Taliban ties, and political pressures were strong.63 Zar Ajam, one of the convicted men, stated that he enjoyed the systematic shootings of bank customers, caught on a security camera. Public outrage and calls for execution came during a period when President Karzai was publicly critical of foreign influence in Afghanistan.64
President Karzai expressed no misgivings in authorizing these executions.65 At the time, US Embassy observers believed that the de facto death penalty moratorium would resume, and that circumstances and Afghan public outcry forced President Karzai’s hand.66 Similarly, minimal international reaction reflected the belief that this was an outlier event.67 That perception held true until November 2012.
On 20 November 2012, the Afghan government ended its de facto moratorium on executions by hanging eight men. The following day, Afghanistan sent an additional six men to the gallows.68 The condemned were convicted of crimes including murder, kidnapping, rape and treason (national security crimes).69 Among the executed were several men with Taliban ties who allegedly participated in terrorist operations.70 The hangings were widely condemned by international human rights groups, including Human Rights Watch, the European Union, the United Nations and Amnesty International.
Unlike 2011, the sheer volume of hangings, and the potential for more executions, garnered international attention and raised concerns that the Afghan government was shifting policy, ushering in a new era of frequent executions. Amnesty International’s Asia-Pacific Deputy Director, Polly Truscott immediately called for restraint by the Kabul government: ‘We urge President Karzai to halt these executions immediately. The sheer number of people who could be killed by the state is a particularly shocking use of what is the ultimate cruel and inhuman form of punishment.’71