UNAMA’s new report, “Corporal Punishment and the Death Penalty in Afghanistan”, can be read here.

UNAMA has recorded just two instances of capital punishment ordered by judges or officials since the Taleban took over Afghanistan in August 2021. One was an old case of murder from 2017 in Farah province, which was revived following the complaint of the victim’s family, and passed through all three judicial levels before being signed off by Amir ul-Mu’minin, Mullah Hibatullah Akhundzada; the accused was reportedly shot dead by the victim’s father in December 2022. The second was the stoning to death on 14 February 2023 of two people accused of adultery in Nusay district of Badakhshan province as ordered by the district governor. UNAMA has detailed many more cases of corporal punishment, defined as when “physical force is used and intended to cause some degree of pain or discomfort, however light.” Some were issued by the courts or by non-judicial authorities such as governors, and others were carried out without any formal procedure, ad hoc, by police, officials from the Ministry for the Promotion of Virtue and Prevention of Vice and the General Directorate of Intelligence (GDI) and others.

All those numbers may, however, be set to rise sharply if sentences announced by Deputy Chief Justice Abdul Malek Haqqani are implemented. Haqqani detailed hundreds of verdicts involving capital and corporal punishments in a video posted on the Emirate’s Supreme Court YouTube channel on 4 May. He categorised the offences and sentences according to Islamic law’s three-way classification (also used in the Republic’s body of law).

First are hudud offences, whose punishments are viewed as fixed by the Qur’an or Hadith and are classed as offences against God; they include zina (sex outside marriage, including adultery, which the UNAMA report tends to mention separately), accusing someone falsely of zina, drinking alcohol and some types of theft.

Second are qisas punishments, which are retributive penalties, and allow equal retaliation in cases of intentional bodily harm, including most types of murder; these crimes may also be forgiven by the victim or their family or resolved between the families with blood money.

A third class of punishments in Islamic law, tazir, are for all other offences and are decided according to the discretion of a judge or ruler. 

Different offences within these three categories may receive corporal, capital or other types of punishment.

The Deputy Chief Justice listed the following verdicts as having been ordered since the Taleban’s takeover and the establishment of their courts and procedures.

• 175 verdicts of murder; those convicted have been sentenced to death
• 79 verdicts of monetary compensation to the victim or their family (di’et)
• 37 sentences of stoning to death (rajam) (crime not mentioned)
• 4 sentences of having a wall collapsed onto the perpetrator (crime not mentioned)
• 103 cases of hudud punishments (not specified)
• 1,562 taziri punishments (neither crimes nor sentences specified).

Some of the taziri punishments have already been carried out. However, with regard to qisas and hudud offences, the Deputy Chief Justice said that because they are so serious, the High Council (Aali Shura) and cabinet have to scrutinise each case and concur with the court’s verdict. The sentences will only be carried out, he said, after the Amir ul-Mu’mimin has confirmed them.

If these sentences are implemented, it would represent a massive increase in the use of corporal punishment and judicially ordered death sentences. UNAMA has already reported a rise in judicially ordered sentences of corporal punishment since November 2022 when Mullah Hibatullah encouraged the implementation of hudud and qisas punishments, as referred to in this tweet by Emirate spokesman Zabihullah Mujahed:

His Excellency the Amir-ul-Momineen in a meeting with Qazis [judges]: ‘You should examine well the dossiers [case files] of thieves, kidnappers, and those causing fitna [strife/sedition/conflict etc]. You are obligated to apply Hudud and Qisās [punishments] in those cases where all Shariah conditions for Hudud and Qisās are met because this is the order. [Translation from Pashto by UNAMA].

However, in Afghanistan today, the courts are not the only state body ordering punishments, as UNAMA’s report has documented.

Who orders the punishments?

In its analysis, UNAMA breaks down punishments according to who ordered them and gives these details when it comes to corporal punishment.

1. Judicial corporal punishment: punishments carried out in accordance with a court decision 

In the fourteen months between the Taleban takeover on 15 August 2021 and the tweet announcing Hibatullah’s meeting with the judges on 13 November 2022, UNAMA says it documented at least 18 instances of judicially ordered corporal punishment, with Ghor province recording the highest number (six). Of those 18 documented instances, 33 men, 22 women and two under-age girls were punished. “The vast majority of punishments, for both men and women,” it reported, “related to zina, adultery or ‘running away from home’.” All the women and girls who were punished were reportedly convicted of such offences. Punishments typically consisted of 30-39 lashes for each convicted person. In some cases, as many as 80 to 100 lashes were given.

In the almost six months since the tweet about the Amir’s meeting with the judges (up to 30 April 2023, the cut-off point for this report), UNAMA documented at least 435 instances of judicial corporal punishment. Of those, 58 women, 274 men and one boy were lashed for various offences, including zina, running away from home, theft, homosexuality, consuming alcohol, fraud and drug trafficking. As before, the majority of punishments administered related to convictions of zina, adultery and running away from home. Again, the punishments were typically 30 to 39 lashes, but as many as 100 lashes were also reported.

After 13 November 2022, UNAMA also said there was:

[A]n observable increase in the number of people punished in a single gathering and in the public nature of punishments, with the de facto authorities favouring large capacity sports stadiums and drawing in significant crowds of local residents as spectators for punishments. For example: 14 people lashed in a football stadium [in] Logar province on 23 November; 21 people lashed in a courtroom of the de facto Primary Court in Kabul on 1 December; 27 people lashed in the sports stadium in Parwan on 8 December.

2. Corporal punishment handed down by non-judicial entities: punishments carried out following a formal decision announced by a non-judicial official, eg a Provincial Governor

UNAMA recorded several instances where state authorities issued formal decisions about punishments, largely for moral crimes.

• A 16-year-old female and 18-year-old male, arrested for zina, were lashed 50 times each, based on a decision by religious elders and de facto police in Moradi village, Freng district, Baghlan province. (27 December 2021)

• The Wama district governor in Nuristan province ‘convicted’ a 17-year-old male of stealing cooking oil and publicly lashed him 60 times. The decision was made following an interrogation of the boy, conducted in the presence of some ulema. (19 November 2022)

3. Ad hoc corporal punishment: punishments carried out by a non-judicial official in the absence of any formally announced decision

UNAMA has recorded ad hoc corporal punishments used by Vice and Virtue personnel, the police, GDI and others. Those carried out by Vice and Virtue against women, it said, were most often meted out for not wearing the style of hijab mandated by the Emirate and leaving the house without a mahram (a close male relative), even though according to the Emirate’s own rules, this is allowed up to 78 km from a woman’s home. For men, punishments were typically meted out, reported UNAMA, to barbers for trimming men’s beards, to men with trimmed beards, to shopkeepers for allowing women into their stores without a mahram and to men for failing to attend congregational prayers in a mosque. UNAMA gave a number of examples of such ad hoc punishments, including:

• Military personnel lashed and beat two men with the butt of a gun, accusing them of gambling and using drugs in Burka district, Baghlan province. (16 December 2022)

• Vice and Virtue officials slapped and kicked a group of shopkeepers for allowing women to shop in their stores unaccompanied by a mahram in Lashkargah, Helmand province. (12 April 2022)

• Vice and Virtue inspectors lashed two girls and one woman because they were not wearing burqas in Bamyan city. (13 August 2022)

• Vice and Virtue officials detained a group of six young women and beat them with sticks and cables on their legs, because their ankles were visible under their clothes in Kabul city. (6 November 2022)

• Police stopped two adult men and beat them because they were playing music inside their car in Lashkargah. (14 November 2022)

UNAMA reports that one person was killed as a result of such punishment. Police in Aybak city, Samangan province, beat two people, a man and a woman, on charges of adultery and running away on 30 November 2022. They beat the woman so badly that she died of her injuries. UNAMA said the woman’s body was handed to her family the following day.

Human Rights Watch has pointed out that many ‘ad hoc punishments’ are also carried out by the Taleban to silence critics or perceived critics, for example, beating protesters and journalists. Musicians as a group have also been subject to ad hoc violence from the state, as a recent AAN report detailed. Human Rights Watch also stresses that when it comes to killing by the state, the number of judicially-ordered death sentences are “eclipsed by the Taliban’s extrajudicial executions, mostly of members of the former government’s security forces, whose number is estimated in the hundreds.”

The legal frameworks and the experience of the Republic

Under the Republic, both corporal punishment and the death penalty were lawful. Article 3 of the Penal Code stated that its purpose was to regulate “principles, rules and provisions related to Taziri crimes and penalties,” and that perpetrators of hudud and qisas would be “punished in accordance with the provisions of Hanafi jurisprudence of Islamic Sharia.” Hudud and qisas punishments, noted UNAMA, were “therefore allowed under the Penal Code, but not codified or defined therein.”

In 2010, the Republic confirmed that corporal punishment could be imposed for zina, under the Penal Code.^[1] In 2013, a Ministry of Justice working group proposed amendments to the Penal Code which would have established stoning or lashing as punishment for the offence of adultery. The amendments were not passed. The 2004 Constitution and the Penal Code both allowed for the imposition of the death penalty: tazir punishments for murder were only to be applied where the conditions for the application of a qisas punishment were not available. Article 170 of the Penal Code listed the crimes for which the death penalty should be applied “unless otherwise stipulated in law.” They included: genocide, crimes against humanity, war crimes, crimes of aggression against the state, assassination and explosion, kidnapping and taking hostages or highway robbery resulting in the death of person(s); murder in conditions anticipated in the Penal Code; crimes causing the territory of Afghanistan partly or entirely to fall under the sovereignty of a foreign country or which harm the national sovereignty, territorial integrity, or independence of the country; gang rape of a female; gang rape of male that results in death.

In the years of the Republic, between 2001 and 15 August 2021, says UNAMA, the state reportedly executed at least 72 people by hanging or shooting.^[2] The Republic of Afghanistan stopped executing people by shooting after a public outcry following a botched mass execution in October 2007.

UNAMA says there is a lack of good data on instances of corporal punishment ordered by the judiciary or government entities during those years. It cites two examples from what it says are isolated public reports of judicially ordered corporal punishment: a man publicly whipped by a judge inside the courtroom as a punishment for drinking alcohol in Jalalabad, Nangrahar province in May 2011 and; a woman and man publicly lashed 100 times each by a primary court judge, who had convicted them of adultery on 30 August 2015

The United Nations Commission on Human Rights (predecessor to the Human Rights Council), along with human rights treaty bodies and special procedures, “have all stated that corporal punishment constitutes a form of torture or cruel, inhuman or degrading treatment or punishment, in contravention of international human rights standards, and have called for its abolition,” writes UNAMA.

As to the death penalty, while not prohibited under international human rights law, UNAMA says the International Covenant on Civil and Political Rights strictly limits its application by State parties which have not abolished its use; it should only be imposed for the “most serious crimes,” interpreted by the Human Rights Committee, as crimes of extreme gravity involving intentional killing and any person sentenced to death should have the right to seek a pardon or commutation.

During the Republic, UNAMA Human Rights and other bodies called on the government to abolish corporal punishment and establish a moratorium on executions. They do so again today. UNAMA Human Rights, Fiona Fraser, said in a tweet:

Corporal punishment is a violation of the Convention against Torture & must cease. The UN is strongly opposed to the death penalty & encourages the DFA [de facto authorities] to establish an immediate moratorium on executions.

She also tweeted:

UNAMA welcomes the de facto authorities’ engagement with and response to the report. We call for more to be done to respect international human rights standards.

How fair is the system, especially to women?

International standards, writes UNAMA, make it clear that all accused persons must receive a fair trial. It lists some of the violations of fair trial guarantees seen in Afghan courts: the use of forced confessions, lack of effective legal representation, general lack of fairness in the criminal justice process and lack of independence or impartiality of the court. UNAMA argues:

The legal system in Afghanistan is currently failing to safeguard minimum fair trial and due process guarantees, with defence lawyers reporting difficulties in meeting with clients, accessing places of detention and being sidelined in judicial processes. 

If offenders do get to court, women are at a particular disadvantage there. The legal system in Afghanistan was always heavily skewed towards male staffing, but that has worsened sharply since the Taleban took power, as UNAMA describes:

The de facto authorities’ refusal to grant licences to women defence lawyers and exclusion of women judges from the judicial system has a specific impact on women and girls’ ability to obtain legal representation, their equality before the law and access to justice.

UNAMA also points out that women who are publicly punished for zina and other moral crimes are at increased risk of violence from their families and communities after the punishment, due to the “extreme levels of stigma towards women accused of extramarital relationships.” Those punished for homosexuality, it says, are in similar danger of additional punishments.

Typically, women feature little in courts and prisons in Afghanistan, as elsewhere in the world; most criminals are men. Yet, the proportion of men to women accused and punished of the types of moral crimes that receive corporal punishments is far more even. Many, if not most, women in prison in Afghanistan are also there having been accused of moral crimes; according to a 2012 Human Rights Watch report, I Had To Run Away”: The Imprisonment of Women and Girls for “Moral Crimes” in Afghanistan”, 95 per cent of girls and 50 per cent of women then imprisoned in Afghanistan had been incarcerated for such crimes.

One offence can only be carried out by women and girls – running away from home – but is it even a crime? After being challenged that it is not recognised as such in Afghan law, the Supreme Court issued a statement in 2010 that it could be a criminal act if a woman ran away to a stranger’s house (rather than to relatives or government institutions) as this act could result in zina. (See the just-quoted Human Rights Watch for more on this.) When women and girls run away from home, even if it is because of violence, abuse or forced marriage, they have always been in grave danger of further punishment and being returned to the abusive situation. Perpetrators, meanwhile, have always been unlikely to be punished.

Indeed, another way of looking at the use of corporal punishment against women and girls, as outlined in the UNAMA report, is how it has always been part of the constellation of types of male violence. When AAN has reported on this issue in the past, it has been clear that the punishment of ‘wayward’ girls and women may be from their own families, from other families who feel wronged in some way, by the courts, or other authorities – police, district and provincial governors – or commanders, both Taleban and others. See, for example, our reporting from Ghor in 2016, “Reality Check: No justice for women in Ghor province”. It is a hard read, detailing heartbreaking cases of suffering, as it delves into how “conservative attitudes and customary practices, combined with insecurity and a failing justice system, result in an environment of near-constant violence against Afghan girls and women, where perpetrators literally get away with murder.”

With the advent of the Taleban’s second Islamic Emirate, the chances for women and girls to get justice have surely worsened, given the absence of female court officials, policewomen and female prosecutors, and the lack of women in government and parliament who might be more likely to speak up for victims than their male counterparts. The use of corporal punishment against women, as outlined in this report, would appear to be one other element in how Afghan women are now more tightly controlled and restricted. As to the death sentences detailed by Deputy Chief Justice Haqqani, he gave no breakdown according to gender. However, during the first Emirate, women were among those killed by the state for ‘moral crimes’. Little suggests that their treatment by the courts of the second Emirate will be any different.

Edited by Roxanna Shapour