Afghanistan - Revision history

Aozanian: /* Brief History of Afghanistan */

2026-09-25T23:08:04Z

Brief History of Afghanistan

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	==Brief History of Afghanistan==		==Brief History of Afghanistan==

	The Islamic Republic of Afghanistan ~~(“Afghanistan”)~~ is a country located on the continent of Asia. The capital city is Kabul and the national population is about 30 million people. The country has a majority Islamic population with very small pockets of less than 1% of Sikhs, Hindus and Jews. The official languages are Pashto and Dari. <ref>http://www.afghan-web.com/facts.html </ref> The country is made up of 34 Provinces that function as administrative divisions. The country gained independence from the British in 1919.		The Islamic Republic of Afghanistan is a country located on the continent of Asia. The capital city is Kabul and the national population is about 30 million people. The country has a majority Islamic population with very small pockets of less than 1% of Sikhs, Hindus and Jews. The official languages are Pashto and Dari. <ref>http://www.afghan-web.com/facts.html </ref> The country is made up of 34 Provinces that function as administrative divisions. The country gained independence from the British in 1919.

	Afghanistan has been plagued for the last couple of decades by civil wars and internal armed conflicts. There was a civil war from 1989 – 1992 and another from 1992 – 1996. President Mohammad Najibullah was defeated by the Taliban government who had support from the Pakistan and Saudi Arabia governments. The Taliban government was considered a brutal system and according to Physicians for Human Rights (PHR), "no other regime in the world has methodically and violently forced half of its population into virtual house arrest, prohibiting them on pain of physical punishment from showing their faces, seeking medical care without a male escort, or attending school.” <ref>Physicians for Human Rights, The Taliban's War on Women. A Health and Human Rights Crisis in Afghanistan, available at https://www.law.georgetown.edu/rossrights/docs/reports/taliban.pdf </ref> The devastation of the conflicts is estimated at over 400 00 from between 1990 to 2001.		Afghanistan has been plagued for the last couple of decades by civil wars and internal armed conflicts. There was a civil war from 1989 – 1992 and another from 1992 – 1996. President Mohammad Najibullah was defeated by the Taliban government who had support from the Pakistan and Saudi Arabia governments. The Taliban government was considered a brutal system and according to Physicians for Human Rights (PHR), "no other regime in the world has methodically and violently forced half of its population into virtual house arrest, prohibiting them on pain of physical punishment from showing their faces, seeking medical care without a male escort, or attending school.” <ref>Physicians for Human Rights, The Taliban's War on Women. A Health and Human Rights Crisis in Afghanistan, available at https://www.law.georgetown.edu/rossrights/docs/reports/taliban.pdf </ref> The devastation of the conflicts is estimated at over 400 00 from between 1990 to 2001.
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	Despite its progress in democratic systems, Afghanistan is still plagued with conflict and the ever-looming threat of the Taliban and growing terrorist organizations within and outside the country. This had led to an overall defunct state that is riddled with human rights violations. Amnesty International reports that despite any progress made, there is still widespread violence, including indiscriminate attacks on civilians by armed insurgent groups; armed insurgent groups’ killings of persons affiliated with the government; torture and abuse of detainees by government forces; widespread disregard for the rule of law and little accountability for those who committed human rights abuses; and targeted violence of and endemic societal discrimination against women and girls. <ref>https://www.amnesty.org/en/countries/asia-and-the-pacific/afghanistan/report-afghanistan/ </ref>		Despite its progress in democratic systems, Afghanistan is still plagued with conflict and the ever-looming threat of the Taliban and growing terrorist organizations within and outside the country. This had led to an overall defunct state that is riddled with human rights violations. Amnesty International reports that despite any progress made, there is still widespread violence, including indiscriminate attacks on civilians by armed insurgent groups; armed insurgent groups’ killings of persons affiliated with the government; torture and abuse of detainees by government forces; widespread disregard for the rule of law and little accountability for those who committed human rights abuses; and targeted violence of and endemic societal discrimination against women and girls. <ref>https://www.amnesty.org/en/countries/asia-and-the-pacific/afghanistan/report-afghanistan/ </ref>

	According to the Human Rights Watch 2017 Country Report for Afghanistan “fighting continued between Taliban and government forces in Afghanistan in 2016, thousands of civilians were killed and injured in insurgent suicide and IED attacks. The Taliban claimed responsibility for many of these, but groups affiliating themselves with the Islamic State (“ISIS”) claimed several particularly deadly attacks in Kabul.”<ref>https://www.hrw.org/world-report/2017/country-chapters/afghanistan</ref>		According to the Human Rights Watch 2017 Country Report for Afghanistan “fighting continued between Taliban and government forces in Afghanistan in 2016, thousands of civilians were killed and injured in insurgent suicide and IED attacks. The Taliban claimed responsibility for many of these, but groups affiliating themselves with the Islamic State (“ISIS”) claimed several particularly deadly attacks in Kabul.”<ref>https://www.hrw.org/world-report/2017/country-chapters/afghanistan</ref>

	==Type of System (Common Law; Civil Law; Hybrid)==		==Type of System (Common Law; Civil Law; Hybrid)==

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Unknown user: Removed redirect to Afghanistan - Dari

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Removed redirect to Afghanistan - Dari

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Unknown user: Changed redirect target from Dari to Afghanistan - Dari

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Changed redirect target from Dari to Afghanistan - Dari

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Unknown user at 08:08, 25 August 2020

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	\|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">Legal Resources for Afghanistan</h2>		\|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">Legal Resources for Afghanistan</h2>
	~~The Constitution of Afghanistan <ref>~~http://www.afghanembassy.com.pl/afg/images/pliki/TheConstitution.pdf~~</ref>~~		[http://www.afghanembassy.com.pl/afg/images/pliki/TheConstitution.pdf The Constitution of Afghanistan]

	<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources</h2>		<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources</h2>

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			* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]
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Unknown user at 08:04, 25 August 2020

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	<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources</h2>		<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources</h2>

Unknown user at 08:03, 25 August 2020

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	The Constitution of Afghanistan <ref>http://www.afghanembassy.com.pl/afg/images/pliki/TheConstitution.pdf</ref>		The Constitution of Afghanistan <ref>http://www.afghanembassy.com.pl/afg/images/pliki/TheConstitution.pdf</ref>

	<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources h2>		<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources</h2>

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	In Afghanistan, Article 116 of the Constitution provides that the judiciary must be independent. However, this has proved to be a difficult task as the judiciary is “underfunded, understaffed, inadequately trained, ineffective, and subject to threats, bias, political influence, and pervasive corruption.”<ref>Supra note 3</ref> Bribery is reported as prevalent and fear of retribution in rendering unfavorable decisions has also been reported. <ref>Id</ref> Most courts administered justice unevenly, employing a mixture of codified law, sharia, and local custom. Traditional justice mechanisms which have been the dominant dispute resolution mechanism remain the main recourse for many, especially in rural areas. These mechanisms consist of informal courts whose authority is consented to by the parties and whose decisions are based on interpretation of religious script.<ref>Julia Pfeiffer, Traditional Dispute Resolution Mechanisms in Afghanistan and their Relationship to the National Justice Sector, Law and Politics in Africa, Asia and Latin America, 44, 81 -98 (2011)</ref> There was varying adherence to codified law, with courts often disregarding applicable statutory law in favor of sharia or local custom.<ref>Id</ref> These courts have been criticized by international human rights organizations, especially in the manner in which they deal with crimes involving women.<ref>U.N.A.M.A. and U.N.H.C.R., Justice through the Eyes of Afghan Women: Cases of Violence against Women Addressed through Mediation and Court Adjudication, (2015) available at: https://unama.unmissions.org/sites/default/files/unama_ohchr_justice_through_eyes_of_afghan_women_-15_april_2015.pdf</ref>		In Afghanistan, Article 116 of the Constitution provides that the judiciary must be independent. However, this has proved to be a difficult task as the judiciary is “underfunded, understaffed, inadequately trained, ineffective, and subject to threats, bias, political influence, and pervasive corruption.”<ref>Supra note 3</ref> Bribery is reported as prevalent and fear of retribution in rendering unfavorable decisions has also been reported. <ref>Id</ref> Most courts administered justice unevenly, employing a mixture of codified law, sharia, and local custom. Traditional justice mechanisms which have been the dominant dispute resolution mechanism remain the main recourse for many, especially in rural areas. {{Highlight\|These mechanisms consist of informal courts whose authority is consented to by the parties and whose decisions are based on interpretation of religious script\|Article 122 states that no law shall exclude any case from the jurisdiction of the judicial organ, which implies that all cases must be handled by formal courts. Additionally, Article 116 defines the judiciary as an independent organ comprising the Supreme Court, Courts of Appeal, and Primary Courts, further indicating that informal courts are not recognized.}}.<ref>Julia Pfeiffer, Traditional Dispute Resolution Mechanisms in Afghanistan and their Relationship to the National Justice Sector, Law and Politics in Africa, Asia and Latin America, 44, 81 -98 (2011)</ref> There was varying adherence to codified law, with courts often disregarding applicable statutory law in favor of sharia or local custom.<ref>Id</ref> These courts have been criticized by international human rights organizations, especially in the manner in which they deal with crimes involving women.<ref>U.N.A.M.A. and U.N.H.C.R., Justice through the Eyes of Afghan Women: Cases of Violence against Women Addressed through Mediation and Court Adjudication, (2015) available at: https://unama.unmissions.org/sites/default/files/unama_ohchr_justice_through_eyes_of_afghan_women_-15_april_2015.pdf</ref>

	In 2013 a new law organizing the judiciary weakened the Control and Monitoring Department of the Supreme Court. The existing department had been considered effective in dealing with corruption within the judiciary in the districts and provinces. The new law eliminated some of the department’s key positions and its authority to conduct investigations, make arrests, and prosecute violators.<ref>Bureau of Democracy, Human Rights, And Labor. 2015 Country Reports on Human Rights Practices: Afghanistan 2015 Human Rights Report, https://www.state.gov/documents/organization/253169.pdf </ref>		In 2013 a new law organizing the judiciary weakened the Control and Monitoring Department of the Supreme Court. The existing department had been considered effective in dealing with corruption within the judiciary in the districts and provinces. The new law eliminated some of the department’s key positions and its authority to conduct investigations, make arrests, and prosecute violators.<ref>Bureau of Democracy, Human Rights, And Labor. 2015 Country Reports on Human Rights Practices: Afghanistan 2015 Human Rights Report, https://www.state.gov/documents/organization/253169.pdf </ref>
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	After making the arrest and verifying the suspect's identity, the police have 24 hours to inform the suspect of the reason for the arrest and its circumstances,<ref>Article 31, ICPC (2004)</ref> and to turn him or her over to the Attorney General Office Prosecutor (or the "Primary Saranwal"; hereinafter prosecutor). However, the Police Law of 2005 allows the police to hold a suspect in custody for up to 72 hours in order to "comprehensively detect the crime and criminal."<ref>Article 25, the Police Law (2005)</ref> With court approval the investigating prosecutor may continue to detain a suspect while continuing the investigation, with the length of continued detention depending on the severity of the offense. The investigating prosecutor may detain a suspect for up to a maximum of 10 additional days for a petty crime, 27 days for a misdemeanor, and 75 days for a felony. The prosecutor must file an indictment or release the suspect within those deadlines, and no further extensions of the investigatory period are permitted if the defendant is in detention. However, prosecutors often ignored these limits.<ref>Supra note 6, </ref>		After making the arrest and verifying the suspect's identity, the police have 24 hours to inform the suspect of the reason for the arrest and its circumstances,<ref>Article 31, ICPC (2004)</ref> and to turn him or her over to the Attorney General Office Prosecutor (or the "Primary Saranwal"; hereinafter prosecutor). However, the Police Law of 2005 allows the police to hold a suspect in custody for up to 72 hours in order to "comprehensively detect the crime and criminal."<ref>Article 25, the Police Law (2005)</ref> With court approval the investigating prosecutor may continue to detain a suspect while continuing the investigation, with the length of continued detention depending on the severity of the offense. The investigating prosecutor may detain a suspect for up to a maximum of 10 additional days for a petty crime, 27 days for a misdemeanor, and 75 days for a felony. The prosecutor must file an indictment or release the suspect within those deadlines, and no further extensions of the investigatory period are permitted if the defendant is in detention. However, prosecutors often ignored these limits.<ref>Supra note 6, </ref>

	The article 27 of the Constitution prohibits arbitrary arrest or detention, but both remained serious problems. Authorities detained many citizens without respecting essential procedural protections.<ref>UN Assistance Mission in Afghanistan (UNAMA), Arbitrary Detention in Afghanistan: A Call For Action, Volume II - A Practical Guide to Understanding and Combating Arbitrary Detention Practices in Afghanistan, January 2009, available at: http://www.refworld.org/docid/49d07fc42.html </ref> According to NGOs, law enforcement officers continued to detain citizens arbitrarily without clear legal authority or due process. Local law enforcement officials reportedly detained persons illegally on charges not provided for in the penal code.<ref>supra note 5</ref>		The article 27 of the Constitution prohibits arbitrary arrest or detention, but both remained serious problems. Authorities detained many citizens without respecting essential procedural protections.<ref>UN Assistance Mission in Afghanistan (UNAMA), Arbitrary Detention in Afghanistan: A Call For Action, Volume II - A Practical Guide to Understanding and Combating Arbitrary Detention Practices in Afghanistan, January 2009, available at: http://www.refworld.org/docid/49d07fc42.html </ref> According to NGOs, law enforcement officers continued to detain citizens arbitrarily without clear legal authority or due process. {{Highlight\|Local law enforcement officials reportedly detained persons illegally on charges not provided for in the penal code\|Article 27 states that no one shall be pursued, arrested, or detained without due process of law, and no deed shall be considered a crime unless ruled by a law promulgated prior to the commitment of the offense. This implies that detaining individuals on charges not provided for in the penal code would be illegal.}}.<ref>supra note 5</ref>

	Police and legal officials often charged women with intent to commit zina (extramarital sexual relations) to “justify their arrest and incarceration for social offenses, such as running away from home, rejecting a spouse chosen by her family, fleeing domestic violence or rape, or eloping.”<ref>Supra note 6</ref>		Police and legal officials often charged women with intent to commit zina (extramarital sexual relations) to “justify their arrest and incarceration for social offenses, such as running away from home, rejecting a spouse chosen by her family, fleeing domestic violence or rape, or eloping.”<ref>Supra note 6</ref>
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	Whenever the judicial police have good reasons to believe that an urgent action is needed in order to preserve evidence, they can initiate a preliminary investigation that might include:<ref>Article 32</ref>		Whenever the judicial police have good reasons to believe that an urgent action is needed in order to preserve evidence, they can initiate a preliminary investigation that might include:<ref>Article 32</ref>

	# Personal risk or searches of premises and other places;		# {{Highlight\|Personal risk or searches of premises and other places;\|Article 38 states that personal residences are immune from trespassing and cannot be searched without the owner's permission or a court order, except in situations delineated by law. It specifies that in case of an evident crime, officials may enter or search without a prior court order, but this does not explicitly support the claim regarding 'good reasons to believe that urgent action is needed to preserve evidence' as a standard for initiating searches.}}
	# Seizures of objects and documents;		# Seizures of objects and documents;
	# Inspection of persons or places, including the taking of photos;		# {{Highlight\|Inspection of persons or places, including the taking of photos;\|Article 38 states that personal residences are immune from trespassing and cannot be entered or searched without the owner's permission or a court order, except in specific situations. This implies that general inspections of persons or places are not allowed without proper legal authorization.}}
	# Requesting the assistance of experts for performing activities which require special professional qualification.		# Requesting the assistance of experts for performing activities which require special professional qualification.

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	==Right to Counsel==		==Right to Counsel==

	Every individual has the right to a defense attorney upon arrest in terms article 31 of the Constitution, and in criminal cases, the state must appoint a defense attorney for the indigent. All conversations, communications, and correspondence between the accused and the attorney are protected by an attorney-client confidentiality.<ref>Constitution, 31</ref>. Article 11 of Law on Organization and Jurisdiction of the Courts of Islamic Republic of Afghanistan states that “Each person shall be entitled to a defense attorney immediately after the person’s arrest to remove the accusation charged against. In criminal cases, there shall be assigned defense attorneys for the destitute in accordance with the relevant legislation.”		Every individual has the right to a defense attorney upon arrest in terms article 31 of the Constitution, and in criminal cases, the state must appoint a defense attorney for the indigent. All conversations, communications, and correspondence between the accused and the attorney are protected by an attorney-client confidentiality.<ref>Constitution, 31</ref>. {{Highlight\|Article 11 of Law on Organization and Jurisdiction of the Courts of Islamic Republic of Afghanistan states that “Each person shall be entitled to a defense attorney immediately after the person’s arrest to remove the accusation charged against\|Article 31 states that upon arrest, every individual can appoint a defense attorney and shall have the right to be informed of the nature of the accusation. However, it does not explicitly state that each person is entitled to a defense attorney immediately after arrest, nor does it mention Article 11 of the Law on Organization and Jurisdiction of the Courts.}}. In criminal cases, there shall be assigned defense attorneys for the destitute in accordance with the relevant legislation.”
	The full enjoyment of the right to counsel is severely hindered by all the administrative red tape and corruption in the system. Criminal defense attorneys have reported that the government officials have little respect for the law or the important role of criminal defense lawyers in trials. Some defense attorneys have even reported being intimidated and threatened by law enforcement officials. <ref>Supra note 3</ref>		The full enjoyment of the right to counsel is severely hindered by all the administrative red tape and corruption in the system. Criminal defense attorneys have reported that the government officials have little respect for the law or the important role of criminal defense lawyers in trials. Some defense attorneys have even reported being intimidated and threatened by law enforcement officials. <ref>Supra note 3</ref>

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	==Fair Trial Rights==		==Fair Trial Rights==

	The right to a fair trial is enshrined in Article 26 of the Constitution. However, this is often not respected in practice. Prosecutors rarely informed defendants promptly and in detail of the charges brought against them.<ref>Supra note 6</ref> Citizens are often unaware of their constitutional rights.<ref>Id</ref> Defendants and attorneys are entitled to examine physical evidence and documents related to a case before trial, although observers noted court documents often were not available for review before cases went to trial, despite defense lawyers’ requests.<ref>Id</ref> Article 6 of Afghanistan’s Law against Terrorist Offences (2008) also states that “during investigation and trial, those suspected or accused of terrorist offences including offences against persons pro-tected under international treaties as provided for in Article 13 of the same law shall have the same legal rights as those suspected or accused of other offences.” <ref>http://www.vertic.org/media/National%20Legislation/Afghanistan/AF_Law_on_Combat_against_Terrorist_Offences.pdf</ref>		{{Highlight\|The right to a fair trial is enshrined in Article 26 of the Constitution\|Article 26 states that 'Crime is a personal act. Investigation, arrest and detention of an accused as well as penalty execution shall not incriminate another person.' This does not explicitly mention the right to a fair trial.}}. However, this is often not respected in practice. Prosecutors rarely informed defendants promptly and in detail of the charges brought against them.<ref>Supra note 6</ref> Citizens are often unaware of their constitutional rights.<ref>Id</ref> Defendants and attorneys are entitled to examine physical evidence and documents related to a case before trial, although observers noted court documents often were not available for review before cases went to trial, despite defense lawyers’ requests.<ref>Id</ref> Article 6 of Afghanistan’s Law against Terrorist Offences (2008) also states that “during investigation and trial, those suspected or accused of terrorist offences including offences against persons pro-tected under international treaties as provided for in Article 13 of the same law shall have the same legal rights as those suspected or accused of other offences.” <ref>http://www.vertic.org/media/National%20Legislation/Afghanistan/AF_Law_on_Combat_against_Terrorist_Offences.pdf</ref>

	In 2016 there were some accused who were executed in the absence of a fair trial, in violation of Afghanistan’s laws and the ICCPR. The executions raised some international outcry <ref>http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx</ref>		In 2016 there were some accused who were executed in the absence of a fair trial, in violation of Afghanistan’s laws and the ICCPR. The executions raised some international outcry <ref>http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx</ref>