National Implementation of IHL
Afghanistan Penal Code, 2017
15.05.2017
14.02.2018
Yes
Official Gazette Nr 1260, 15th May 2017

Summary
The new Penal Code was approved through the Presidential Legislative Decree dated 04.03.2017, published by the Ministry of Justice (MoJ) on 15.05.2017 (Official Gazette Nr 1260), and entered into force on 14.02.2018, nine months after the date of approval by the State President. It combines 10 former separate criminal laws and also brings together the penal provisions of 33 laws of other scopes.

With the application of this law, the following shall be repealed:
  • Criminal Procedure Code (published in the Official Gazette No. 26) and its amendments (published in Official Gazettes No. 45, No. 90, No. 268, No. 547, No. 657, and No. 763)
  • Law on Detection and Investigation of Crimes and Oversight by the Prosecutor’s Office on the Legality of Its Implementation (published in Official Gazette No. 424) and its amendments (published in Official Gazettes No. 498, No. 688, No. 737)
  • Interim Criminal Procedure Code for Courts (published in Official Gazette No. 820) and the amendment of its article 83(3) (published in Official Gazette No. 1013), as well as articles 161–171 (published in Official Gazette No. 347)

Other provisions contrary to the provisions of this law shall be annulled.

The 2017 Penal Code has 916 articles in two sections: general penal law and specific penal law (crimes and punishments). It criminalizes international crimes listed in the ICC Statute, including war crimes, crimes against humanity, genocide and aggression, and it sets forth the criminal liability for civilian superiors or military commanders who fail to prevent or punish subordinated who commit these crimes. It further prevents an alleged perpetrator from invoking the defence of superior order for genocide, crimes against humanity, war crimes, aggression against State and torture.

The Penal Code further punishes, among others:
- Illicit manufacturing and traffic in firearms;
- Sexual abuse of boys, extending the prohibition to all related acts, including knowingly attending a performance that involves such practice;
- Forced virginity testing of women suspected of having engaged in consensual extra-marital sex (clearly distinguished from rape).

Other novelties of the new Penal code include:
- The incorporation of alternatives to imprisonment (of up to 5 years) and incarceration of minors (of up to 3 years) with the discretion of the judge. Requires it (mandatory) where a sentence is 6 months or less. War crimes are excluded from such alternatives.
- Death Penalty offenses are reduced from the former 54 to 14. Several crimes formerly liable to death penalty are assigned in the new Code a form of imprisonment called the ''first degree continued imprisonment (30 years)''.
- Full immunity is granted to International Organizations: the 1976 Penal Code protected only diplomatic representatives (art. 8), while the 2017 Penal Code extends protections to “…other political representatives, representatives of international organizations, and other employees who have diplomatic protection in accordance with 1969 Vienna Convention on diplomatic immunity and 1973 Convention on prohibition and punishment of crimes against internationally protected persons and their family members” (art. 4).

Finally, the Penal Code addresses topics such as the protection of cultural property, the protection of the dead, and recruitment of children, among others.

Document
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application/pdf 4,121 KB 2017 Penal Code_OG.PDF