COMMON ANALYSIS
Last update: January 2023
Under the sharia, corporal punishments are envisaged for different crimes, for example stoning for adultery, public flogging for drinking alcohol and hand amputation for some types of theft. Article 29 of the Constitution of Afghanistan prohibited ‘punishment contrary to human dignity’, and Afghanistan has been a party of the CAT since 1987. However, corporal punishments were permitted by law in Afghanistan due to the pluralistic legal system, whereby Islamic and civil laws interacted with one another, allowing individual judges and courts to determine how to prescribe punishments under either code.
Prior to the takeover, in territories under their control, the Taliban operated a parallel justice system based on a strict interpretation of the sharia. In addition to executions (see Article 15(a) QD: death penalty or execution), the operation of this system led to punishments reported by UNAMA to be cruel, inhuman, and degrading [Anti-Government Elements, 2.5, p. 21; Criminal law and customary justice, 1.6, p. 17; 1.8, p. 21].
Following the takeover, the Taliban have made clear statements regarding the required adherence to the sharia. Physical punishments including executions are reportedly considered as necessary parts of Islamic law. Therefore, some punishments used during the last Taliban rule would be revived, for example amputation of hands. No reports on corporal punishments issued by a court were found during the reference period of this guidance [Targeting 2022, 1.1.4, p. 34]. It was suggested that Taliban judges avoided to issue too harsh punishments to avoid losing support among the population [Targeting 2022, 1.4.4, p. 35]. However, there were reports on Taliban fighters subjecting civilians to punishments, inter alia whipping alleged thieves [Country Focus 2022, 1.5.1, p. 30; Targeting 2022, 1.4.4, p. 35; Security September 2021, 1.1.2]. As of June 2022, UNAMA had recorded at least 30 instances of ‘cruel, inhuman and degrading treatment and punishments’ including public flogging, beatings and verbal abuse of persons failing to comply with issued directives on behavioural norms since the takeover [Targeting 2022, 1.1.4, p. 35; 1.3.1, p. 42]. For instance, the Taliban reportedly publicly lashed a young unmarried couple in Firozkoh, Ghor Province, for riding a motorbike together [Targeting 2022, 1.1.4, p. 35]. In April 2022, seven men were flogged and sentenced to imprisonment by the Taliban Supreme Court, inter alia for drinking alcohol. A Taliban Supreme Court official confirmed that it was the first time a de facto court issued flogging as a punishment since the Taliban takeover [Targeting 2022, 1.1.4, p. 36].
Corporal punishment would meet the requirements of serious harm under Article 15(b) QD.
Where there is no nexus to a reason for persecution under the refugee definition, the risk of being subjected to corporal punishments may qualify under Article 15(b) QD.
Exclusion considerations may be relevant.
See also 5. Actors of protection.