Academic Analyses


Honour Defence Mitigation from Criminal Jurisprudence Perspectives

Why honour killings fall short of standards required in criminal law Mitigation is a small element in the judicial toolkit acknowledging the frailties of human nature. While intent (mens rea) bears criminal liability, the law adopts a softer view on impulsive reactions. But this is not a boundless discretion bestowed upon courts. Honour killings are tantamount to encouraging summary executions by private individuals based on communal and/or personal affronts. The defence of Provocation is different. An essential ingredient of … [Read More...]

Article 26: Prohibitive Questioning of Family Witnesses

Earlier this month, Article 26 of Afghanistan’s draft criminal procedure code, dealing with the testimony of relatives as witnesses to a crime, was approved by Parliament and sent to the President for his signature. The provision titled “Prohibition of Questioning an Individual as a Witness” is currently reflected in a bill written in Dari, the official Persian used in Afghanistan. Translated into English, Article 26 of the draft stipulates that certain people cannot be questioned as witnesses and includes relatives of the accused. Apart … [Read More...]

Legal Arguments for Divorce due to Harm in Afghanistan

Within Afghanistan's Islamic family law, the right (of the husband) to discipline and the right (of the wife) to dignity and freedom from inhumane and degrading treatment coexists, albeit on parallel planes. But certainty is expedient to the determination of whether the use or abuse of a husband's right results in criminal and/or civil consequences. Not all injuries may immediately qualify for a judicial divorce. Courts may dismiss some cases, order mediation in others, or execute a divorce with varying civil consequences relating to mahr, … [Read More...]

Interpretive approaches to Shariah and Domestic Violence in Afghanistan

Islamic feminists such as Azizah Al-Hibri, Fatima Mernissi and Amina Wadud are among those advocating a re-interpretive approach to the Qur'an. They hold the view that current Islamic law is based on patriarchal interpretation of the Qur'an and advocate for a re- interpretation of the Qur'an from the perspective of females. This last view is that which this paper espouses.   The central argument of this paper is that a re- interpretive approach to the Shari'ah can serve to counter the attitudes of conservative Muslims in relation to … [Read More...]

Appeal for State Accountability

Lobbying for State Accountability for VAW

What is the standard of due diligence? How can you use it to develop arguments for accountability? The due diligence standard with regard to violence against women has been outlined within the Declaration on the Elimination of Violence against Women (1993).1 Regarding acts of violence against women, States should exercise due diligence to: Prevent Investigate Punish This should be done: In accordance with national legislation, Whether those acts are perpetrated by the state or by private … [Read More...]