Afghanistan: End Moral Crimes Prosecutions

(New York) – The government of Afghanistan should adopt recommendations from United Nations member countries to abolish prosecution of women for so-called “moral crimes.” Afghanistan rejected the recommendations in its Universal Periodic Review (UPR) Outcome Report issued on June 16, 2014 at the UN Human Rights Council. Other issues addressed include the death penalty, anti-gay discrimination, and impunity.

The governments rejection of the recommendations to end prosecutions for “moral crimes” undercuts its acceptance of recommendations supporting womens rights and its explicit avowal that “womens rights and gender equality remained a top priority,” Human Rights Watch said. The action also runs counter to directives from Afghanistans attorney general and Justice Ministry to decriminalize “running away” and “attempted zina,” or sex outside marriage.

“The Afghan governments rejection of recommendations to protect women from moral crimes prosecutions underlines the glaring gap between its womens rights rhetoric and its frequent failure to actually protect women from serious abuses,” said Phelim Kine, deputy Asia director at Human Rights Watch. “Afghanistans failure to protect women adds insult to the injury endured by the hundreds of women and girls victimized by the moral crimes prosecutions.”

The Universal Periodic Review involves a review of the human rights records of all UN member countries under the auspices of the Human Rights Council. The UPR obligates countries to list the actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations. The outcome report issued on June 16 marked the conclusion of Afghanistans second UPR process. Human Rights Watch, in its submission to Afghanistans UPR in December 2013, had warned of the deterioration in womens rights in Afghanistan.

Human Rights Watch has estimated that 95 percent of girls and 50 percent of women imprisoned in Afghanistan had been accused or convicted of “moral crimes,” such as zina. Often, the only evidence in these cases was that the women or girls had “run away” from home either to escape domestic violence or an illegal forced marriage, and were then charged with “attempted zina,” a crime that does not exist in Afghan law.

Although the head of the Afghan delegation at the human rights review confirmed in Afghanistans response to the UPR that “running away from home was not a crime,” it contended that this was contingent on whether “crimes were associated with that act.” Women and girls who have run away are often presumed by police and prosecutors to be guilty of sex outside of marriage solely because they are outside of the supervision of their male relatives.

Statistics from Afghanistans Interior Ministry indicate that the number of women and girls imprisoned for “moral crimes” in Afghanistan had risen to about 600 in May 2013 from 400 in October 2011—a 50 percent increase in a year-and-a-half. Since October 2011, there has been an almost 30 percent increase overall in the number of women and girls in Afghanistans prisons and juvenile detention facilities for moral crimes. Afghanistan has taken measures to address violence against women, particularly through the adoption of the Elimination of Violence Against Women (EVAW) law and the establishment of provincial commissions on for that purpose. However, the EVAW law has come under attack by lawmakers seeking to roll back its protections, and its implementation remains sporadic.

Imprisonment is not the only danger faced by women and girls who flee abuse at home, Human Rights Watch said. Violence against women in Afghanistan is pervasive, and honor killings of women and girls who flee forced marriage or domestic violence are common. The government of Afghanistan has agreed to review recommendations at the UPR to amend article 398 of the Afghan Penal Code to permit full accountability for those who commit so-called honor killings, to bring the code into line with the international Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Article 398 states that a person who carries out an honor killing “is exempted for punishment for murder,” and may be imprisoned for no more than two years. However, the Afghan government has maintained that the “perpetrators of such crimes were not exonerated” under article 398.

The Afghan government also rejected recommendations for a moratorium on capital punishment. In November 2012 the government executed eight people, after a four-year informal moratorium in which only two people were executed. The government also denied the rights of Afghanistans lesbian, gay, bisexual, and transgender (LGBT) population by rejecting a recommendationto ensure non-discrimination on the basis of sexual orientation and gender identity and repeal the provisions of the penal code that criminalize sexual relations between consenting adults of the same sex.

More positively, the Afghan government agreed to study recommendationsaimed at ending decades of impunity by allowing for prosecution of serious rights violations including war crimes, genocide, and torture. The government also agreed to study a recommendation to “ensure a national mechanism for transitional justice and national reconciliation, starting with the immediate release of the conflict mapping report of the Human Rights Commission and ensure adequate security assistance for its staff.”

The Afghanistan Independent Human Rights Commission (AIHRC) in 2012 completed the 800-page report, which maps serious human rights abuses committed in Afghanistan between 1978 and 2001. But the Afghan government has not released it.

The Afghan government has also agreed to study recommendations to “give the Afghanistan Independent Human Rights Commission the independence and legal authority to hold to account perpetrators of detainee mistreatment,” and to “adopt measures to combat cases of torture and ill-treatment in the detention centres.” Despite a 2013 presidential decreeexplicitly banning torture and detailing punishments for officials implicated in such abuses, torture of detainees by security forces remains a serious problem. There has not been a single prosecution of any Afghan official in any case of torture.

“The Afghan government appears to recognize the need to address its legacy of toxic impunity, but the test will be whether they actually prosecute offenders,” Kine said. “The governments refusal to re-impose a moratorium on the death penalty and its willingness to deny the rights of Afghan woman and its LGBT population only guarantees future rights abuse victims.”
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