Country Situations > Afghanistan

Afghanistan: Visits & Communications

Country Visits

The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, then Asma Jahangir, visited Afghanistan in October 2002. The report on this visit is E/CN.4/2003/3/Add.4.

Correspondence from 2007

The record of correspondence for 2007 is excerpted from the official United Nations report, A/HRC/4/20/Add.1.

Afghanistan: Death Sentence of Abdul Rahman

Violation alleged: Non-respect of international standards relating to the imposition of capital punishment

Subject(s) of appeal: 1 male (member of religious minority)

Character of reply: No response

Observations of the Special Rapporteur

The Special Rapporteur regrets that the Government of Afghanistan has failed to cooperate with the mandate that he has been given by the General Assembly and the Commission on Human Rights.

Urgent appeal dated 22 March 2006

We would like to draw the attention of your Government to information we have received regarding Abdul Rahman. According to the information received:

Abdul Rahman is currently being tried in a Kabul court on criminal charges of conversion from Islam to Christianity. Mr. Rahman was arrested in February 2006 after the police received information that he was a convert. He was found carrying a Bible at the time of his arrest. During his trial, Mr. Rahman acknowledged that he had converted to Christianity sixteen years ago. The Prosecutor, Mr. Wasi, indicated he would be willing to drop the charges if Mr. Rahman reconverted to Islam, but Mr. Rahman is unwilling to do so. According to the information received, conversion from Islam carries the death sentence under national law.

While we do not wish to prejudge the accuracy of these allegations, we would also like to appeal to your Excellency's Government to ensure the right to freedom of religion or belief in accordance with the principles set forth in the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief and article 18 of the Universal Declaration on Human Rights as well as of the International Covenant on Civil and Political Rights.

We would like to draw the Government's attention to General Comment 22 of the Human Rights Committee.? Paragraph 3 provides that, "Art. 18 does not permit any limitations whatsoever on the freedom of thought and conscience or the freedom to have or adopt a religion or belief on one's choice." Furthermore, paragraph 5 of General Comment 22 of the Human Rights Committee provides that, "The Committee observes that the freedom to "have or adopt" a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another". The General Comment goes on in Paragraph 9 to state that, "the fact that a religion is recognized as a state religion [...] shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including article 18 [...], nor in any discrimination against adherents to other religions".

We would also like to remind your Excellency's Government that, in accordance with article 6(2) of the International Covenant on Civil and Political Rights, "in countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes". In its General Comment No. 6, the United Nations Human Rights Committee has stated that "the expression "most serious crimes" must be read restrictively to mean that the death penalty should be a quite exceptional measure". Finally, the Safeguards guaranteeing protection of the rights of those facing the death penalty approved by Economic and Social Council resolution 1984/50 of 25 May 1984 provide that "in countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences" (para. 1).

In view of the urgency of the matter, we would appreciate a response on the initial steps taken by your Excellency's Government to safeguard the rights of Mr. Rahman in compliance with the obligations under international law of your Excellency's Government, as outlined above.

It is our responsibility under the mandates provided to us by the Commission on Human Rights and reinforced by the appropriate resolutions of the General Assembly, to seek to clarify all cases brought to our attention. Since we are expected to report on these cases to the Commission, we would be grateful for your cooperation and your observations on the following matters, when relevant to the case under consideration:

1. Are the facts alleged in the above summary of the case accurate?
2. Please indicate the law and the relevant articles, under which Abdul Rahman has been charged.? Please provide a copy of the relevant articles.
3. Please indicate the extent to which the criminalization of conversion is compatible with the international standards referred to above.
4. Please indicate how many people have been tried and convicted on charges relating to conversion during the past year.

Afghanistan: Death Sentence of Asadullah Sarwari

Violation alleged: Non-respect of international standards relating to the imposition of capital punishment

Subject(s) of appeal: 1 male

Character of reply: No response

Observations of the Special Rapporteur

The Special Rapporteur regrets that the Government of Afghanistan has failed to cooperate with the mandate that he has been given by the General Assembly and the Commission on Human Rights.

Urgent appeal dated 20 April 2006 sent with the Special Rapporteur on the independence of judges and lawyers

We would like to bring to the attention of your Excellency's Government reports we have received regarding the trial of Mr. Asadullah Sarwari and the imposition of the death penalty against him. We understand that Mr. Sarwari, who is now aged 65, was the head of Afghanistan's intelligence service (AGSA) under the regime of Hafizullah Amin (1978-79), which carried out mass arrests and summarily executed many of those detained. According to the information received:

Mr. Sarwari was arrested in 1992 by a Mojahedin force following the withdrawal from Afghanistan of the Soviet Union's armed forces. In 2003 he was handed over to the intelligence service of your Excellency's Government, the National Security Directorate. In autumn 2005, Mr. Sarwari requested President Karzai ¡®for justice'. Criminal proceedings against him were initiated and he was charged with several crimes against the internal security of the state, including inviting armed forces to an uprising, using force to overthrow the presidency, and homicide.

The trial consisted of 3 hearings, the first on 26 December 2005, the last on 25 February 2006. Because of the highly charged atmosphere surrounding the trial and of the precarious security situation, Mr. Sarwari was unable to find a suitable lawyer to represent him. Most of the evidence adduced at trial related to the arrest and subsequent disappearance of up to 70 members of a family, the Mujeddadi, in June 1979. At the final trial hearing on 25 February 2006, at Kabul National Security Primary Court, sixteen witnesses gave testimony. Some of them were called by the prosecutor, others ¡®gave evidence' spontaneously from the public gallery. Members of the Mujeddadi family and household stated that the accused was present at, and was in charge of, the arrests. One witness came forward and gave evidence supportive of Mr. Sarwari, stating that 120 detainees were released by him in 1979. This produced an angry reaction from the public gallery. The presiding judge called the audience to order and stated that it was important that the court listened to both sides. Mr. Sarwari was not given the opportunity to cross examine any of the witnesses.

Mr. Sarwari read out his defence statement denying all allegations against him. He complained about his illegal arrest and detention for more than 13 years without trial. He admitted to having issued arrest warrants, but asked the prosecutor to produce any testimony or documentary proof that could prove his involvement in the killing of detainees. During this exchange, the Prosecutor conceded the absence of any article in the Penal Code of Afghanistan under which Mr. Sarwari could be convicted as a war criminal, but argued that Mr. Sarwari's official position as the head of AGSA was sufficient to hold him responsible for the murder and disappearance of innocent countrymen under Article 130 of the Constitution.

At 1.30 p.m. the judicial panel retired to consider its verdict. Fifteen minutes later the judges returned and pronounced the judgment and sentence. Mr. Sarwari was found guilty of the ¡®killing of countless Afghans' on the basis of his involvement in the arrest of members of the Mujeddadi family and on the basis of his senior official position in the Amin Regime. He was not found guilty on any specific count contained in the indictment but rather, according to the judge, in accordance with article 130 of the Constitution which states that 'if there is no provision in the Constitution or other laws about a case, the courts shall in pursuance of Hanafi jurisprudence and within the limits set by the Constitution, rule in a way that attains justice in the best manner'. On the basis of this guilty finding, he was sentenced to death.

It would appear that the Attorney General has filed an appeal against the judgment (or the sentence), while Mr. Sarwari has not appealed against the judgment and sentence within the 20-day deadline provided by the Interim Criminal procedure Code.

We would like to commend your Excellency's Government for bringing to justice a person accused of responsibility as a commander for numerous summary executions (although we remain concerned that the Afghan criminal code does not proscribe war crimes and crimes against humanity, and therefore does not allow the prosecution to file charges which fully reflect the seriousness of the crimes Mr. Sarwari is accused of ¨C an issue which the problems related to the charges in the present trial would appear to highlight). Indeed, ending the impunity of those responsible for war crimes and crimes against humanity committed during the 25 years of armed conflict in Afghanistan is an important obligation of your Excellency's Government under international law and the Action Plan on Peace, Justice and Reconciliation. It also constitutes a demand of the Afghani people, as set forth in the Afghan Independent Human Rights Commission's report A Call for Justice. A National Consultation on Past Human Rights Violations in Afghanistan.

Such efforts to ensure accountability must, however, themselves comply with international human rights law. While capital punishment is not prohibited under international law, it must be regarded as an extreme exception to the fundamental right to life, and is surrounded with strict limitations by international law binding upon your Excellency's Government, in particular articles 6 and 14 of the International Covenant on Civil and Political Rights. With specific regard to the case of Mr. Sarwari, we would like to draw your attention to the requirement that "in capital punishment cases, the obligation of States parties to observe rigorously all the guarantees for a fair trial set out in Article 14 of the [ICCPR] admits of no exception" (Little v. Jamaica, communication no. 283/1988, Views of the Human Rights Committee of 19 November 1991, para. 10). The reports concerning the trial of Mr. Sarwari raise a number of very serious concerns with regard to the right to a fair trial:

1. Regarding the requirement of independence and impartiality of the tribunal(article 14(1) ICCPR), reports indicate that before the decisive hearing of 25 February 2006 representatives of the Mujeddadi family (i.e. victims and prosecution witnesses) and the Head of the Department of Judicial Inspections of the Supreme Court, Mr. Halimi, were sitting in the judges' chambers at the court house and meeting with the judge presiding over the trial. Mr. Halimi sat in the front row of the court throughout the hearing, next to prosecution witnesses and close to the prosecutor. At one point he intervened during the trial. When the judges retired to consider their verdict, he also left the court. Moreover, the judicial panel took only fifteen minutes of deliberation to find the applicant guilty and sentence him to death. We acknowledge that the presiding judge reportedly gave Mr. Sarwari the opportunity to speak unhindered in his defence and reminded the public that both sides must be given a full hearing. The circumstances referred to above, however, engender the impression of possibly undue influence over the trial judges by the Department of Judicial Inspections of the Supreme Court and the victims' family and cast a grave shadow over the appearance of independence and impartiality of the tribunal.
2. Regarding the accused's right to be informed of the charges, to be given adequate time and facilities for the preparation of his defence, and to be enabled to examine the witnesses against him and obtain the attendance of witnesses on his behalf (article 14(3), letters (a), (b) and (e) ICCPR), nothing in the reports I have received indicates that the accused had prior notice of who would give evidence against him and what exactly the witnesses would give evidence on. Under articles 51 and 53 of the Interim Criminal Procedure Code the prosecution was obliged to submit to the court a list of witnesses it intends to call, which it failed to do. Mr. Sarwari therefore had no opportunity to call evidence in rebuttal, to effectively challenge the prosecution evidence or to properly prepare his defence. The accused was not given the opportunity to cross-examine the witnesses against him, and did not call any witnesses on his behalf. Finally, the accused was convicted on the basis of a provision, Article 130 of the Constitution, that was not contained in the criminal code in force at the time of the trial, was not mentioned in the indictment and reportedly was not discussed in the course of the trial, which would appear to have seriously undermined his chances of effectively preparing his defence. Articles 57 and 42 of the Interim Criminal Procedure Code as well require prior notice to be given to the defence of changes in the definition of offences alleged.
3. Regarding the accused's right "to defend himself in person or through legal assistance of his own choosing ¡­ and to have legal assistance assigned to him, in any case where the interests of justice so require" (article 14(3), letter (d) ICCPR), Mr. Sarwari did not enjoy any legal assistance. The reports we have received indicate that this was not his free choice, but due to the circumstance that no lawyer was willing to take up his defence. We am also concerned that in the indictment, Mr. Sarwari's request for an attorney was viewed as disruptive of the prosecution's investigation and as another basis for his guilt.
4. Regarding the right to obtain review of conviction and sentence by a higher court (article 14(5) ICCPR), the effective exercise of this right requires that the defendant be provided with legal counsel and time to adequately prepare his appeal.

We do not wish to prejudge the accuracy of the reports we have received. In the event, however, that they were accurate, entirely or also only in part, we have no doubt that international law requires your Excellency's Government to ensure that the death penalty is not carried out. I urge your Government to ensure that the concerns we (and other observers) have expressed with regard to the trial are fully taken into account at the second instance stage, whether or not Mr. Sarwari himself files an appeal against the judgment. We further urge your Government to ensure that Mr. Sarwari be provided with adequate legal assistance for all remaining procedural stages in his case.

In 2003, the Commission on Human Rights called on the Afghanistan Transitional Administration to "declare a moratorium on the death penalty in the light of procedural and substantive flaws in the Afghan judicial system." (Situation of Human Rights in Afghanistan, CHR Res. 2003/77). We recognize that your Excellency's Government is undertaking considerable efforts to improve the criminal justice system under the most challenging circumstances. Nonetheless, we consider that the concerns highlighted with regard to the trial of Mr. Sarwari (as well as those I set forth in my letter to your Government of 31 August 2005 concerning the cases of Messrs. Sharifullah (surname unknown), Habib al-Rahman, Zalmai (surname unknown), Neyaz Mohammad, Tila Mohammad (known as Telgai), Mohammad Rafiq, and Omar Khan, which unfortunately has remained unanswered), require your Government to suspend all executions in order to live up to its obligations under international law.

It is our responsibility under the mandates provided to us by the Commission on Human Rights and reinforced by the appropriate resolutions of the General Assembly, to seek to clarify all such cases brought to our attention. Since we are expected to report on this case, we would be grateful for your cooperation and your observations

a) as to whether the above information concerning the trial and sentence of Mr. Sarwari is accurate; and

b) regarding all steps undertaken by your Government to ensure that Mr. Sarwari is not executed in violation of international law, including information concerning all ongoing and future proceedings in his case.

We would appreciate a response on these matters before any irreversible steps are taken in relation to the fate of Mr. Sarwari. We undertake to ensure that your Government's response is accurately reflected in the reports we will submit.

Correspondence from 2006

The record of correspondence for 2006 is excerpted from the official United Nations report, E/CN.4/2006/53/Add.1.