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European Asylum Support OfficeAfghanistanCriminal law, customaryjustice and informaldispute resolutionCountry of Origin Information ReportJuly 2020SUPPORT IS OUR MISSION
European Asylum Support OfficeAfghanistanCriminal law, customaryjustice and informaldispute resolutionCountry of Origin Information ReportJuly 2020
More information on the European Union is available on the Internet (http://europa.eu).ISBN: 978-92-9485-649-4 doi: 10.2847/41077BZ-02-20-564-EN-N European Asylum Support Office (EASO) 2020Reproduction is authorised, provided the source is acknowledged, unless otherwise stated.For third-party materials reproduced in this publication, reference is made to the copyrightsstatements of the respective third parties.Cover photo: ResoluteSupportMedia/22nd Mobile Public Affairs Detachment Photo by Pfc.David Hauk, 13 January 2010 url CC BY 2.0The Afghan National Army held a shura, a meeting with the local leaders, after the two-daymission was complete. The leaders discussed what the ANA can do to ensure the localpeople’s safety and projects that will make their living conditions better.
4—EASO COUNTRY OF ORIGIN INFORMATION REPORT - AFGHANISTAN: CRIMINAL LAW, CUSTOMARY JUSTICE, DISPUTE RESOLUTIONAcknowledgementsThis report was drafted by the European Asylum Support Office Country of Origin Information (COI)Sector.The following national asylum and migration department contributed by reviewing this report:The Netherlands, Office for Country Information and Language Analysis, Ministry of JusticeIt must be noted that the review carried out by the mentioned department contributes to the overallquality of the report, but it does not necessarily imply its formal endorsement of the final report, whichis the full responsibility of EASO.
EASO COUNTRY OF ORIGIN INFORMATION REPORT - AFGHANISTAN: CRIMINAL LAW, CUSTOMARY JUSTICE, DISPUTE RESOLUTION -— 5ContentsAcknowledgements.4Contents .5Disclaimer .6Glossary and abbreviations.7Introduction .9Terms of Reference.9Methodology .9Structure and use of the report.9Map . 101. Overview of socio-legal framework for punishment of crime . 111.1 Legal pluralism . 111.2 Hudud crimes . 121.3 Qisas crimes. 131.4 Ta’azir crimes and the new Penal Code (2017) . 141.6 Practices of corporal and capital punishment by the government . 161.7 Customary justice . 171.8 Taliban’s parallel justice system. 192. Land disputes . 222.1 General. 222.2 Land disputes among nomadic and sedentary groups . 242.3 Land dispute resolution . 252.3.1 Formal mechanisms . 252.3.2 Customary and traditional mechanisms . 262.3.3 Taliban involvement in land disputes . 273. Blood feuds and revenge killings . 293.1 Pashtunwali and blood feuds . 293.2 Customary blood feud resolution and compensation . 313.3 Prosecution by the state . 32Annex I: Bibliography . 34Annex II: Terms of Reference . 45doi:
6—EASO COUNTRY OF ORIGIN INFORMATION REPORT - AFGHANISTAN: CRIMINAL LAW, CUSTOMARY JUSTICE, DISPUTE RESOLUTIONDisclaimerThis report was written according to the EASO COI Report Methodology (2019).1 The report is basedon carefully selected sources of information. All sources used are referenced.The information contained in this report has been researched, evaluated and analysed with utmo stcare. However, this document does not claim to be exhaustive. If a particular event, person ororganisation is not mentioned in the report, this does not mean that the event has not taken place orthat the person or organisation does not exist.Furthermore, this report is not conclusive as to the determination or merit of any particular applicationfor international protection. Terminology used should not be regarded as indicative of a particular legalposition.‘Refugee’, ‘risk’ and similar terminology are used as generic terminology and not in the legal sense asapplied in the EU Asylum Acquis, the 1951 Refugee Convention and the 1967 Protocol relating to theStatus of Refugees.Neither EASO nor any person acting on its behalf may be held responsible for the use which may bemade of the information contained in this report.The drafting of this report was finalised on 30 June 2020. Any event taking place after this date is notincluded in this report. More information on the reference period for this report can be found in themethodology section of the Introduction.1The EASO methodology is largely based on the Common EU Guidelines for processing Country of Origin Information (COI),2008, and can be downloaded from the EASO website: http://www.easo.europa.eu.
EASO COUNTRY OF ORIGIN INFORMATION REPORT - AFGHANISTAN: CRIMINAL LAW, CUSTOMARY JUSTICE, DISPUTE RESOLUTION -— 7Glossary and abbreviations2AANAfghanistan Analysts NetworkAIHRCAfghanistan Independent Human Rights CommissionBaad, bad, ba’adThe practice of exchanging women/girls to resolve a dispute;exchanging daughters between families for marriage to avoid brideprice costs2Badal/ badaalThe concept of revenge or retribution in the Pashtunwali 3Bacha baziA practice whereby boys are exploited by wealthy or powerful menfor entertainment, particularly for dancing and sexual activities 4Diyya/diyatUnder Islamic Law, the payment of diyya/diyat (‘Blood money’) is analternative to ‘eye for an eye’ punishment (qisas)5EVAWElimination of Violence Against Women Law, which criminalises 22forms of gender-based violence and was passed by PresidentialDecree in 2009HanafiIslamic jurisprudence in use in Afghanistan; one of the four schoolsof Sunni jurisprudence6HazaraAn ethnic group who are mainly ShiaHadd (plural: hudud)A category of crime under Islamic Law. Punishment for crimesagainst God prescribed in the Quran, sometimes punishable bydeath7Huquq/ HuqoqDepartmentA department within the Justice Ministry dedicated to resolve familyissues or civil cases through mediation under the Civil ProcedureCode prior to referral to court; provincial departments/offices existin all 34 provinces8JirgaA council or assembly of tribal elders held for dispute resolution;jirgamar refers to elders whose profession is dispute settlement9Kangaroo courtA tribunal outside statutory judicial authorities that does not followofficial legal proceduresKhunbahaIn Pashtunwali, the word referring to ‘blood money’ orcompensation10KuchiNomadic PashtunsFRC, Pashtunwali: an analysis of the Pashtun way of life, in Austria, BFA, AfPak: Principals of the tribal & clan structure, 5April 2017, available at url, p. 14; 193 FRC, Pashtunwali: an analysis of the Pashtun way of life, in Austria, BFA, AfPak: Principals of the tribal & clan structure, 5April 2017, available at url, p. 84UNAMA, Afghanistan protection of civilians in armed conflict 2019, 22 February 2020, url, p. 885 ALEP, Stanford Law School, An introduction to the Law of Afghanistan, 2017, url, p. 1396 ALEP, Stanford Law School, An introduction to the Law of Afghanistan, 2017, url, p. 217 ALEP, Stanford Law School, An introduction to the Law of Afghanistan, 2017, url, pp. 87-888Afghanistan, MoJ, General directorate of huqoq, n.d., url9 ALEP, Stanford Law School, Introduction to the Criminal Law of Afghanistan, 2012, url, p. 7610 Rzehak, L. Doing Pashto, March 2011, url, p. 18
8—EASO COUNTRY OF ORIGIN INFORMATION REPORT - AFGHANISTAN: CRIMINAL LAW, CUSTOMARY JUSTICE, DISPUTE RESOLUTIONMarakaA specialist in dispute resolution of the jirga; member of the jirgaMoWAAfghanistan’s Ministry of Women’s AffairsMoAAfghanistan Ministry of AgricultureNamusThe concept of sexual integrity and chastity of women according tothe Pashtunwali; it is the duty of Pashtun men to protect the namusof the women of their household11NanawataiThe concept of seeking forgiveness under the Pashtunwali;nanatawai means the offender admits guilt and then gives bloodmoney (khunbaha) or compensation of some kind12NangSocial honour of one’s family or household under the Pashtunwali;Pashtun men must defend the honour (nang) of their extendedfamily as well13NarkhCode of punishments under the Pashtunwali 14PashtunwaliA traditional social, cultural, and quasi-legal code regulating thePashtun way of life. It is believed to have been adopted by Pashtunsfrom time immemorial 15QisasUnder Islamic Law, Qisas are crimes against the bodily integrity of aperson; when one person harms or kills another, an alternative to‘eye for an eye’ punishment (qisas) is the payment of diyya/diyat(‘blood money’)16ShariaThe religious law of Islam; Islamic canonical lawShuraA decision-making community council; often formed for non-statedispute settlement; made up of a group of people with communityauthority (elders) to discuss and find solutions to a problem17SwaraCompensation marriage according to Pashtunwali 18Ta’azirA category of crimes under Islamic Law19Ulema, ulamaMuslim scholars/clericsZinaUnlawful sexual intercourse between a man and a woman outsidethe legal relationship of marriage, including adultery andfornication2011Nation (The), Understanding Pashtunwali, 6 August 2013, urlFRC, Pashtunwali: an analysis of the Pashtun way of life, in Austria, BFA, AfPak: Principals of the tribal & clan structure,April 2017, available at url, p. 4813Nation (The), Understanding Pashtunwali, 6 August 2013, url14 FRC, Pashtunwali: an analysis of the Pashtun way of life, in Austria, BFA, AfPak: Principals of the tribal & clan structure,April 2017, available at url, pp. 28-2915 FRC, Pashtunwali: an analysis of the Pashtun way of life, in Austria, BFA, AfPak: Principals of the tribal & clan structure,April 2017, available at url, p. 2716 ALEP, Stanford Law School, An introduction to the Law of Afghanistan, 2017, url, p. 8717 ALEP, Stanford Law School, Introduction to the Criminal Law of Afghanistan, 2012, url, p. 7618 FRC, Pashtunwali: an analysis of the Pashtun way of life, in Austria, BFA, AfPak: Principals of the tribal & clan structure,April 2017, available at url, p. 3719 ALEP, Stanford Law School, An introduction to the Law of Afghanistan, 2017, url, p. 13920 ALEP, Stanford Law School, Introduction to the Criminal Law of Afghanistan, 2012, url, p. 90125555
EASO COUNTRY OF ORIGIN INFORMATION REPORT - AFGHANISTAN: CRIMINAL LAW, CUSTOMARY JUSTICE, DISPUTE RESOLUTION -— 9IntroductionThe purpose of this report is to provide relevant and updated information for the assessment ofinternational protection status determination, including refugee status and subsidiary protection, andin particular for use in EASO’s country guidance development on Afghanistan.This report is meant to be read in conjunction with other 2020 EASO COI reports on Afghanistan, whichprovide relevant information regarding topics such as state structure and security forces, the maininsurgent groups, targeted violence, security situation and armed conflict developments, keysocioeconomic indicators.Terms of ReferenceThe terms of reference (ToR) of this report were defined by EASO based on discussions held with andinput received from COI experts in the EASO COI specialist network on Afghanistan and from policyexperts in EU countries21 within the framework of a country guidance development on Afghanistan.Terms of reference for this report can be found in Annex II.MethodologyThis report is produced in line with the EASO COI Report Methodology (2019) 22 and the EASO COIWriting and Referencing Style Guide (2019).23 The information gathered is a result of research usingpublic, specialised paper-based and electronic sources until 30 June 2020. Some additional informationwas added during the finalisation of this report in response to feedback received during the qualitycontrol process, until 15 July 2020. Sources in Pashto and Dari used in this report were duly assessedand informally translated by EASO.Large sections of this report draw upon the EASO COI Report, Afghanistan Individuals targeted undersocietal and legal norms, December 2017.24 Based on the consideration that, for its nature, the topicaddressed in this report is not subject to rapid changes, in some cases, entire sections from the 2017EASO COI report have been reproduced, after having thoroughly verified the current validity of theinformation and the accessibility of sources. In other cases, some content has been left out andupdated with most recent information and sources. The sections on specific profiles targeted undersocietal and legal norms present in the 2017 EASO COI report have intentionally not been included,since some of these topics are addressed in other EASO COI reports and queries on Afghanistan dueto be published in 2020.Structure and use of the reportThe report is divided into three parts. The first part focuses on presenting an overview of the sociolegal framework for punishment of crime in Afghanistan, describing the pluralistic legal system ofcodified and uncodified, formal and informal (customary) norms which govern Afghan society.The second part focuses on the topic of land dispute as one of the main sources of conflict inAfghanistan, providing information on formal and informal mechanism of dispute resolution, includingTaliban’s involvement in resolving land disputes.The third part of the report provides an overview on the practices of blood feuds and revenge killing,including customary blood feud resolution and compensation, and prosecution by the state.21EU Member States plus Norway and SwitzerlandEASO, EASO Country of Origin Information (COI) Report Methodology, June 2019, url23 EASO, Writing and Referencing Guide for EASO Country of Origin Information (COI) Reports, June 2019, url24 EASO COI Report, Afghanistan Individuals targeted under societal and legal norms, December 2017, url22
10 —EASO COUNTRY OF ORIGIN INFORMATION REPORT - AFGHANISTAN: CRIMINAL LAW, CUSTOMARY JUSTICE, DISPUTE RESOLUTIONMapMap 1: Afghanistan - administrative divisions, source: UNOCHA2525UNOCHA, Afghanistan - administrative divisions, January 2014, url
EASO COUNTRY OF ORIGIN INFORMATION REPORT - AFGHANISTAN: CRIMINAL LAW, CUSTOMARY JUSTICE, DISPUTE RESOLUTION -— 111. Overview of socio-legal framework forpunishment of crime1.1 Legal pluralismAfghanistan has a pluralistic legal system whereby multiple sources of law interact with one another. 26Justice is administered on the basis of a mixture of overlapping and sometimes contradictory legalcodes27, which include the 2004 Constitution, international law, statutory law, regulations, sharia law,and customary (informal, traditional) law.28 Afghanistan’s highly diverse society includes urban, ruraland tribal segments, each having norms and mechanisms to settle disputes; however, two dominantsystems are used by Afghans to obtain justice: through the state, and through non-state systems.29The Constitution recognises Islam as the official religion of the state30 and Islamic principles arereflected throughout Afghanistan’s constitution, statutory laws and uncodified customary norms. 31Article 3 of the Constitution requires that ‘no law shall contravene the tenets and provisions of theholy religion of Islam in Afghanistan.’32 Article 130 of the Constitution explains the hierarchy ofAfghanistan’s laws33, stating that:‘In cases under consideration, the courts shall apply provisions of this Constitution as well asother laws. If there is no provision in the Constitution or other laws about a case, the courtsshall, in pursuance of Hanafi jurisprudence, and, within the limits set by this Constitution, rulein a way that attains justice in the best manner.’34In communication with EASO in 2017, scholar Neamat Nojumi explained that Afghan laws arestructured on three inter-related tiers: the constitution and statutory laws passed by Parliament,sharia laws adopted on the basis of legal volumes as determined by the Ministry of Justice, andcustomary law. Dr Nojumi noted that there is a hierarchical structure and approach in the applicationof laws: the constitution positions statutory law above sharia and customary law. Judges are obligatedto apply statutory laws; if they do not suffice, the judge can apply the permitted version of sharia, andif that is not sufficient, a judge can apply customary principles, as long as they do not contradict thelegal system or violate the basic rights of citizens.35Although Article 130 of the Constitution was understood by observers to mean that it may only beused for civil matters, the US Department of States (USDOS) reported that it was also applied tocriminal cases by many judges and prosecutors.3626ALEP, Stanford Law School, An introduction to the Law of Afghanistan, 2017 url, p. 43Rahbari S., From Normative Pluralism to a Unified Legal System in Afghanistan? Cambridge University Press, 2 October2018, url; ALEP, Stanford Law School, An introduction to the Law of Afghanistan, 2017, url, p. 4328 ALEP, Stanford Law School, An introduction to the Law of Afghanistan, 2017, url, p. 4329Nojumi, N., The merits of non-state justice: An effective mechanism for a stable Afghanistan, 5 November 2014, url; SinghD., The management of legal pluralism and human rights in decentralized Afghanistan, in The Journal of Legal Pluralism andUnofficial Law, 3 September 2019, Vol. 51, Issue 3, pp. 350-380, Full article available under request at url30 Afghanistan, Constitution of Afghanistan,
in particular for use in EASO’s country guidance development on Afghanistan. This report is meant to be read in conjunction with other 2020 EASO COI reports on Afghanistan, which provide relevant information regarding topics such as state structure and security forces, the main
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