Committee Against Torture: Afghanistan

CAT session 060 (2017)

([May 2017], CAT/C/AFG/CO/2, Concluding observations on second report, Advance unedited version, paras. 21, 23, 24, 39 and 40)

“While noting the State party’s efforts to combat non-State armed insurgency and terrorist groups, the Committee deplores the presence of a wide range of armed groups, including the Taliban, Da’esh and Hizb-i Islami, perpetrating severe human rights abuses including extrajudicial killing and corporal punishment, such as flogging and stoning. The Committee is concerned at the numerous reports documenting the increase of propaganda for violent extremism in Afghanistan, including in some educational institutions, fostering the adhesion and support of one part of the Afghan population to Taliban. It also deplores the deliberate attacks on civilians perpetrated by these groups causing a large number of deaths and injuries among civilians as stated in the UNAMA reports and in the last report prepared by the Office of the United Nations High Commissioner for Human Rights pursuant to Human Rights Council Resolution 14/15 (see A/HRC/34/41), (arts. 2, 4 and 12- 14).”

“While welcoming the delegation’s affirmations that the new bill of Law on Prohibition of Torture now includes a definition of torture that is identical with article 1 of the Convention, the Committee remains concerned that the legislation is not yet fully harmonized with the Convention notably in view of the lenient penalties - midterm sentences from 3 to 5 years of imprisonment - for the crime of torture under the Penal Code. The Committee furthermore deplores: (a) The absence of clear legal provisions ensuring that other cruel, inhuman or degrading treatment or punishment are also clearly prohibited and criminalized as separate offence; (b) The absence of legal provisions ensuring that victims have access to reporting mechanisms without fear of intimidation or reprisals from authorities; and (c) That the State party’s penal Code does not clearly prohibit corporal punishments, including flogging, amputation of limbs and stoning, which amount to torture and cruel, inhuman or degrading treatment or punishment, (arts. 1, 2 and 4).

“The Committee requests the State party to: (a) Ensure that the new bill of Law on Prohibition of Torture including a definition of torture that covers all the elements contained in article 1 of the Convention is properly enforced under its jurisdiction; (b) Ensure that penalties for torture and statutory limitations are commensurate with the gravity of this crime; (c) Amend its legislation in order to prohibit and establish other acts of cruel, inhuman or degrading treatment or punishment as separate offences; (d) Legally ensure that victims have access to reporting mechanisms without fear of intimidation or reprisals from authorities; and (e) Amend its legislation in order to clearly prohibit all forms of corporal punishment as they amount to torture and cruel, inhuman or degrading treatment or punishment, in violation of the Convention.”

“While taking note of the State party’s affirmations that informal parallel judicial mechanisms, particularly Jirga courts, may only hear civil cases and commending that the government strives to build capacity of ordinary courts in rural areas to reduce the number of cases referred to Jirga and any other parallel justice system, the Committee however is seriously concerned at the sentences still imposed by Jirga and other forms of dispute resolution system on the Afghan population, particularly on women, notably for so-called moral crimes, including death sentence and corporal punishment that amount to torture or cruel, inhuman or degrading treatment or punishment (arts. 2, 4 and 16).

“The State party should: (a) Set up an effective system for monitoring and revising decisions by Jirga courts in order to ensure that State officials do not recognize or carry out judgements of parallel judicial mechanisms that exculpate perpetrators of crimes committed in the name of “honor”, that call for women to be subject to corporal punishment, or that are otherwise inconsistent with the State party’s obligations under the Convention; and (b) Develop clear and mandatory instructions for prosecutors identifying which Jirga decisions should lead to criminal prosecutions.”

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