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An Introduction to the Criminal Law of Afghanistan 2ND EDITION AN INTRODUCTION TO THE C RIMINAL LAW OF AFGHANISTAN An Introduction to the Criminal Law of Afghanistan Second Edition Published 2012 Afghanistan Legal Education Project (ALEP) at Stanford Law School http://alep.stanford.edu [email protected] Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 http://law.stanford.edu Protected by Creative Commons License (No Derivative Works) i ALEP – STANFORD LAW SCHOOL Authors Eli Sugarman (Co-Founder, Student Co-Director, 2008-09) Anne Stephens Lloyd (Student Co-Director, 2008-09) Raaj Narayan (Student Co-Director, 2009-10) Max Rettig (Student Co-Director, 2009-10) Una Au Scott Schaeffer Editors Stephanie Ahmad (Rule of Law Fellow, 2011-12) Rose Leda Ehler (Student Co-Director, 2011-12) Daniel Lewis (Student Co-Director, 2011-12) Elizabeth Espinosa Jane Farrington Gabriel Ledeen Nicholas Reed Faculty Director Erik Jensen Rule of Law Program Executive Director Megan Karsh Program Advisor Rolando Garcia Miron AMERICAN UNIVERSITY OF AFGHANISTAN Contributing Faculty Editors Nafay Choudhury Rohullah Azizi Naqib Ahmad Khpulwak Hamid Khan Chair of the Department of Law Taylor Strickling, 2012-13 Hadley Rose, 2013-14 Mehdi Hakimi, 2014- Translation Assistance Elite Legal Services, Ltd. ii TABLE OF CONTENTS Chapter 1: An Introduction to Criminal Law…..………………………………………………………1 Chapter 2: Crime………………………………………………………………………………………...22 Chapter 3: Criminal Responsibility ……………………………………………………………………46 Chapter 4: Punishment……………………..…………………………………………………………...65 Chapter 5: Substantive Crimes in Afghan Criminal Law…………………………………………….135 Glossary…………………………………………………………..………………………………………157 iii PREFACE It is an understatement to say Afghanistan is facing critical challenges and hard transitions. The Afghan people face the immense task of rebuilding a country. Three decades of conflict have hurt Afghanistan, not only devastating the country’s infrastructure, but also stunting the institutions that educate and cultivate new leaders. Most significantly, Afghanistan faces a dire shortage of qualified lawyers. This shortage will be keenly felt during times of transition, as the participation of skilled legal practitioners is crucial to rebuilding Afghanistan. These challenges, nevertheless, present an opportunity for the young citizens of Afghanistan to create positive change and become leaders for their country. In response to these challenges and opportunities, Stanford Law School's Afghanistan Legal Education Project (ALEP) began in the fall of 2007. The project is a student-initiated program dedicated to helping Afghanistan’s universities train the next generation of Afghan lawyers. More broadly, ALEP hopes to train the next generation of leaders who will drive Afghanistan’s reconstruction and recovery. In 2007, the founding team members produced the project’s first major work, An Introduction to the Law of Afghanistan. For its second major project, the team focused on an area of law critical to the national rebuilding efforts, criminal law. The creation of a properly functioning criminal justice system, rooted in the rule of law, is pivotal to the sustainable development of the country and its full integration into the international community. With these ideas in mind, the ALEP team has created a criminal law textbook that exposes its readers to every facet of Afghanistan’s criminal law, from the attributes of crime, to the central role of Islamic Law, and from the substantive criminal laws, to the concepts of victims’ and defendants’ rights. In the 2008-2009 school year, the ALEP team was composed of Stanford Law students Una Au, Raaj Narayan, Max Rettig, Scott Schaeffer, Anne Stephens, Eli Sugarman, and Geoffrey Swenson. The students were supervised by Erik Jensen, Co-Director of Stanford Law School’s Rule of Law Program, and Larry Kramer, Stanford Law School Dean. The ALEP team is grateful for Dean Kramer’s enthusiasm for this project, and would also like to acknowledge the support of Deborah Zumwalt, General Counsel of Stanford University and member of American University of Afghanistan’s (AUAF) Board of Trustees. ALEP is also delighted to continue its partnership with AUAF, and is particularly grateful for the support of AUAF’s Chief Academic Officer, Dr. Athanasios Moulakis. In the 2010-2012 school years ALEP team members edited and updated the Criminal Law textbook to produce this most up to date version, which is the Second Edition of the Criminal Law of Afghanistan. This textbook consists of five chapters that will familiarize the reader with criminal law in Afghanistan. It is our sincere hope that the information and commentary in this textbook will help readers make the ethical and responsible decisions that will solidify the rule of law in Afghanistan, regardless of the careers they choose to pursue. It should be noted at the outset that Islamic Law guides all aspects of Afghan criminal law, from the Constitution to the Criminal Code and its individual statutes. Therefore, this textbook would not be complete without a discussion of Islamic Law and its place in Afghanistan’s criminal law. While we endeavor to expose students to some aspects of Islamic Law, this text should not be seen as conclusive on matters of Islamic Law or the Islamic faith, but rather an introductory understanding aimed at exposing issues rather than aimed at offending any particular believer. iv The reader should be aware that there is a substantial divergence among scholars regarding the interpretation and punishment of crimes under Islamic Law. We do not seek to take part in this debate. Instead, we attempt to lay out a very basic overview of Islamic Law and its influence on Afghanistan’s criminal law. We hope that by doing so, our readers will appreciate and further investigate this complex relationship, namely by studying many of the nuanced interpretations. With this understanding, Chapter 1 familiarizes readers with the history of Afghanistan’s criminal laws and introduces them to the major themes pursued throughout the text. The chapter considers three major topics in depth: the objectives of the criminal law, the sources of criminal law, and the history of criminal law in Afghanistan. Chapter 2 discusses the basic elements of prohibited acts. In short, the chapter details the fundamental elements of crime, each of which must exist before a defendant can be found guilty. Among the elements required by law, this chapter evaluates (1) whether the action is classified as a crime when it is committed (the legal element); (2) whether the defendant’s actions match those actions criminalized by the applicable code sections (the material element); and (3) whether the defendant possesses the requisite mental state when the crime is committed (the mental element). Chapter 3 closely examines the consequences of criminal acts under the Penal Code and individual statutes. The chapter seeks to investigate the core values and principles underpinning criminal responsibility. The chapter also serves as a general primer on the most important limitations of criminal liability. Students will be able to critically examine how the Penal Code addresses problems stemming from criminal acts perpetrated by “legal persons,” such as corporations or labor unions, in addition to those of “natural persons,” or humans. Chapter 4 is intended to help students critically examine the role of punishment. In particular, the chapter considers the current rules governing punishment and evaluates their place in society. The punishment process outlined in Chapter 4, of course, may differ in significant respects from the realities of crime and punishment as they exist in everyday life. A familiarity with the law, nevertheless, is important for both students and practitioners, even if the letter of the law is not always followed. Chapter 5, finally, is devoted to a careful examination of Afghanistan’s substantive crimes. It discusses the influence of Islamic Law and the crimes that are defined by its teachings, including hudud, qisas, and ta’azir. The great majority of the chapter looks at the positive law as it exists in the Penal Code and various statutes. The discussion highlights crimes against the state (bribery and corruption, drug cultivation/trafficking, terrorist financing, and money laundering), crimes against the person (homicide, assault and battery, robbery, kidnapping, and rape), and crimes against property (embezzlement, larceny, burglary, and fraud). Finally, the chapter examines how defendants contest charges of criminal wrongdoing, primarily through the use of defense lawyers. We sincerely hope that you will enjoy studying, debating, and engaging with these materials, your fellow students, and the faculty of your University. Erik Jensen Palo Alto, California November 1, 2009 v ACKNOWLEDGEMENTS None of ALEP’s projects would be possible without a network of dedicated friends and supporters. Stanford Law School Dean Larry Kramer (with whom Erik Jensen supervises the students) has provided strong support to the project, as has Ms. Deborah Zumwalt, General Counsel of Stanford University and member of AUAF’s Board of Trustees. Stanford professor Robert Weisberg in particular lent his expertise to the development of this book. ALEP is delighted to partner with the American University of Afghanistan. In particular, AUAF’s Chief Academic Officer, Dr. Athanasios Moulakis, has been enormously supportive from ALEP’s inception. Generous donors have provided tremendous support. ALEP would like to thank the Bureau
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