Are Taliban’s Punishments Fair: Islamic Verdict or Vigilante Justice?

The Taliban’s Supreme Court has issued a verdict of “Qisas” for 175 suspects and ordered the stoning of 37 others. The court has also sentenced four individuals to be put under a wall and 103 people to what the group describes as “enforcing Sharia punishments”. According to an official statement released by the Taliban, the Supreme Court has obligated 79 defendants to pay “blood money,” and sentenced 1,562 others to corporal punishment. The Deputy Chief Justice of the Supreme Court of the Taliban emphasized that some of these verdicts have been executed while others are in the process of being carried out. The Taliban’s implementation of these punishments has raised concerns among human rights activists, religious scholars, and citizens alike. Recently, Abdul Ghani Haqbeen, the former head of the Taliban’s counterterrorism command in Qandahar province, was released from prison based on the orders of the leader of the Taliban. He had been detained by the group’s intelligence six months ago on charges of rape and sodomy in the Spin Boldak district of Kandahar province. The citizens believe, the implementation of these verdicts is based on the Taliban’s extremist interpretation of religious teachings and is a form of “Kangaroo Court.” They assert that there is no fair trial process or access to justice under the Taliban’s rule. The Afghanistan Independent Human Rights Commission (AIHRC) describes the Taliban’s Supreme Court as a “Tyrannic Court” and calls on the world not to remain silent in the face of these inhumane verdicts. Religious scholars also explain that the implementation of Qisas and Sharia punishments requires greater insight, of which the Taliban is incapable.

On Thursday, May 4th, Mawlawi Abdul Malik Haqqani, the Deputy Chief Justice of the Supreme Court of the Taliban, instructed the group’s courts to thoroughly review cases of Qisas. Haqqani revealed in a video that over 175 people have been sentenced to Qisas and 37 others have been sentenced to stoning, based on the rulings of the court. He added that more than four individuals have been sentenced to be put under a wall, while 103 others have been ordered to face “enforcing Sharia punishments”. In addition, 79 people have been ordered to pay “blood money,” and 1,562 other convicts have been sentenced to corporal punishment.

Previously, the leader of the Taliban, Mullah Hibatullah Akhundzada, instructed the group’s judges to “implement Qisas and Sharia Punishments,” and the Supreme Court of the Taliban issued orders accordingly. Zabihullah Mujahid, the Taliban’s spokesperson, tweeted on Sunday, November 2022, that Akhundzada had issued this order in a meeting with judges, stating that “judges are obliged to implement [Qisas and Sharia punishments] in cases where all the Sharia conditions have been met.” Following this order, the Taliban implemented “Qisas” on a suspect for the first time since returning to power, in the winter of last year in Farah province, with the presence of the group’s leaders.

The Taliban’s Supreme Court has faced widespread reactions from citizens, human rights lawyers, organizations, and civil activists due to the issuance and implementation of these orders. Legal experts argue that the confirmation of a crime leading to “Qisas and Sharia punishments” by the Taliban is impossible, and their judges cannot issue “God’s Order” verdicts on suspects without any doubt or suspicion.

What is the opinion of Experts on the Taliban’s Proof of Crime?

Dr. Mohammad Amin Ahmadi, a researcher on religious affairs and a former member of the Islamic Republic of Afghanistan Peace Negotiations Team, spoke to the Hasht-e Subh Daily about the severe sentences issued by Taliban courts for moral crimes. According to Mr. Ahmadi, determining such heavy penalties for moral crimes is “almost contradictory” to global human rights standards that Afghanistan is committed to upholding. He believes that punishments that contradict human dignity and require torture and abuse are prohibited by human and ethical principles. For instance, stoning is considered contrary to human dignity and makes Islam appear as a violent religion. Moreover, many of these sentences violate the right to life, which is a fundamental human right. The violation of the right to life is not permissible under the human rights to which Afghanistan is committed, except in serious crimes and only according to the law and legitimate courts based on fair trial standards.

According to Mr. Ahmadi, while murder, rape, and harming others are considered serious legal offenses under international law, they do not fall under moral offenses. As a result, the Taliban’s decrees do not align with Afghanistan’s international obligations. Additionally, the lack of adherence to fair trial standards is a major issue in the Taliban’s judicial system. Since the Taliban have not expressed their commitment to fair trial standards, it is unclear whether their judges have received proper training on these standards and how to adhere to them.

This religious researcher categorizes the Taliban’s decrees into three categories based on Islamic jurisprudence principles and values and criticizes them. “There are several problems with the stoning decree. The first problem is that the stoning decree is a controversial ruling from a jurisprudential perspective. It is not that we can say stoning means being hit by stones from an Islamic perspective. It is a punishment that God has determined for adultery or sodomy, and there is no dispute about it. There is only a series of jurisprudential opinions, historical narrations, and traditions that have recently been criticized and challenged by Islamic sciences researchers. According to some of these researchers, the texts of the narrations are disturbed and incompatible with other important principles and are not reliable documents. Can we prove such severe decrees, which are considered to be contrary to human dignity from the perspective of the moral perceptions of human beings, as God’s command and say that God has ordained such a ruling? Or is it possible to prove such a stoning decree?”

He adds, “Secondly, proving the commission of the crime is essential. For example, how can the commission of adultery be proven in a way that the person is deserving of stoning punishment? From the perspective of Islamic jurisprudence, the proof of this crime is either based on testimony or confession. The difficult and stringent conditions for testimony that have been determined in Islamic jurisprudence to prove adultery have made it almost impossible to prove it. For this reason, no one has been able to prove that the Prophet of Islam or the Rashidun Caliphate has implemented stoning punishment for someone whose adultery has been proven by testimony. History does not show such a thing. So, how could the Taliban courts have proven 37 cases of adultery based on Islamic testimony within a year or more? The likelihood of convicts confessing themselves four times is very weak and usually impossible in this day and age.”

Regarding his statement, the second method of proving stoning punishment is confession. In this method, the offender confesses and admits to committing the act. The only case that has been reported to have been following what has been narrated during the time of the Prophet of Islam is stoning based on confession. They say a person named Ma’iz came to the Prophet and said, “I have committed a sin, purify me.” He confessed four times, and after the fourth confession, according to narration, the Prophet issued a stoning punishment against him.

Mr. Ahmadi recalls that according to Islamic jurisprudence, punishment is not based on discovering such crimes, but rather on concealing and covering them up. Therefore, has the Taliban judicial system discovered these crimes based on discovery and exploration policies? If so, this would be against Islam. In this regard, Islamic punitive policy is ethical to confront crimes. It is more aimed at ethical treatment rather than discovery. When the Ma’iz confessed, the Prophet rejected it and said, “Maybe you are mistaken, maybe you have kissed.” How did the Taliban discover all of these things? Because discovering moral crimes is not a legitimate way, but rather it is testimony according to legal and Sharia standards.

This religious researcher talks about Qisas (equal punishment for the crime committed), saying that Qisas is not fundamentally a criminal or punitive commandment from an Islamic perspective. It is not the case that the punishment for someone who commits murder is murder. Qisas is a personal and individual right of the affected person, not a punishment determined by the legislator for the crime of murder, and the government is obliged to comply with it. The government can execute Qisas only if the guardian of the victim demands it, but the guardian of the victim is not obliged to demand Qisas. Instead, they can demand blood money or pardon. When it is mentioned in the Quran that Qisas is the source of life, if studied correctly in its historical context, Qisas were indeed the source of life in the revenge laws of the tribal trial system. The members of the murdered person’s tribe put revenge on the members of the killer’s tribe, and the bloody cycle of revenge continued for years. The Quran limited revenge for the heirs of the murdered person to ask Qisas from the killer. Therefore, Qisas is not fundamentally a legal punishment for the criminal.

Mr. Ahmadi discusses corporal punishment and states: “In terms of corporal punishment, we do not have a strong Islamic jurisprudential basis. Whoever sins must be punished, meaning that there should be a predetermined punishment for every sin, based on a Quranic or hadith basis, which we do not have. Instead, it can be said that this is an area of dispute. In this regard, three points must be considered: First, sin is not a crime. Sin is different from crime. Sin refers to the deliberate violation of a religious prohibition or the deliberate abandonment of a religious obligation, and it results in reward and punishment in the afterlife. Crime is a legal term and applies to the deliberate commission of a criminal act that has been defined as a crime in the law. State courts must prosecute crimes, not the sins of individuals unless the government criminalizes every sin in its law. In this case, where there are no Qisas or Enforcing Sharia Punishments, the punishment must be determined by law. Once again, it should be emphasized that stating that every sin is a crime requires a basis. On what basis does the government say that every sin is a crime? Does the government have the right to turn ethical sins, which according to religious beliefs and jurisprudential fatwas are considered sins for an individual who follows that religion and jurisprudence, into a general law? If yes, what is the religious and jurisprudential basis for it? Therefore, to criminalize everything that is considered halal or haram from a jurisprudential perspective requires a basis that we do not have.”

Secondly, as mentioned earlier, sin is defined based on an individual’s religious and jurisprudential beliefs. Religious beliefs can vary in society; even within Islamic society, there are differences other than Islamic necessities. For example, temporary marriage is permissible in Twelver Shi’ism (Imāmīyyah), but not in Sunni Islam. Here we are faced with the fundamental question of whether the government can determine moral crimes based on religious beliefs of a part of society – not security or physical and financial crimes. Such a thing has not existed in most Islamic countries and in Islamic history, pluralism in jurisprudence and religion has been respected.

The third point is that corporal punishment in Islamic jurisprudence does not necessarily involve flogging or physical punishment. Flogging and physical punishment are instances of torture and are not compatible with human standards, and therefore physical punishment has been largely removed from the laws of Islamic countries. However, the Taliban believe that punishment means flogging.

Dr. Mohammad Saleh Mosleh, a Researcher on Religious Affairs, says that the nearly two-year experience of the Taliban’s rule in the country shows that this group has a very backward understanding of religion. According to him, the Taliban want to pursue multiple goals simultaneously by adapting Qisas and enforcing Sharia punishments.

Mr. Mosleh adds, “The Taliban, using the Hanafi school (Hanafite), have the most commitment in practice to what was happening at the forefront of Islam. Someone who committed sodomy at the time of Abu Bakr Siddiq in the forefront of Islam would receive three sentences: throwing off a mountain, putting under a wall, or setting him on fire and burning him. These were the sentences that existed at that time, but we don’t have them in the history of Islamic governance and the Islamic caliphate. The fact that the Taliban have now taken over is mostly symbolic of the traditional symbolism that they have nurtured in their thoughts and minds.”

This religious researcher adds that the Taliban’s second goal in implementing these rules has a political basis. Mr. Mosleh believes that to keep their militants satisfied, the Taliban are forced to adopt these measures. According to him, in addition to satisfying their militants, the Taliban want to demonstrate their commitment to Sharia law to the traditional citizens of the country, who did not see the implementation of Islamic laws during previous governments. He also adds that the Taliban are putting pressure on the international community with this move to achieve their goals.

Dr. Mohammad Saleh Mosleh adds, “Given the factors and considerations involved, these provisions are primarily political. The actions of the Taliban are suspicious. No one confesses to a crime and four people do not testify an illegal act at the same time that they have seen it, and such a thing seems impossible. These provisions pursue the political interests of the Taliban. There may be individuals who are not accused, become victims, and there is not enough evidence in their favor, but they victimize people for the sake of their publicity.”

Meanwhile, Mohammad Moheq, a Researcher on Religious Affairs, says, “The Taliban judicial system is not independent. We do not currently have an independent judicial system in Afghanistan, its independence has been lost, and it is a judicial system belonging to an armed group that is not legally credible. In addition, issues of Qisas and Enforcing Sharia Punishments are not a priority in the current circumstances of Afghanistan. In Islamic jurisprudence, it is emphasized that when a verdict is implemented, its conditions and circumstances must be taken into account. Currently, there are widespread challenges in Afghanistan that negatively affect the lives of citizens, the social issues such as work, education, and other tensions that have caused the situation to become chaotic and the lack of a legitimate system, are the main priorities to be taken seriously.”

The religious researcher adds that the purpose of the Taliban’s adaptation of these laws is political. He states, “The fact that the Taliban have prioritized criminal laws in such a situation is a political agenda to gain legitimacy between their rivals and their soldiers, to make the Mullahs happy, but it is not for the sake of their religion. If we look at it from a religious perspective, there are more important priorities that should have been addressed. From a philosophical perspective of Shariah laws, all scholars agree that the weak part of Qisas and Enforcing Sharia Punishments is its implementation. As soon as the slightest doubt arises, they are put aside.”

Mr. Moheq adds, “In addition to the mentioned cases, a distinction can be made between the method and the goal, in the sense that the purpose of these regulations was to ensure financial, personal, and social security. At a time when there was no police force or court in Arab society, and there were no facilities for dealing with crimes, more severe methods were used that were compatible with the situation at the time. However, today we have completely different facilities and conditions due to the advancement of governments, and implementing regulations in the same way as that time will have an opposite outcome to the Sharia Laws.”

This religious researcher emphasizes that some of the Taliban’s issued decrees do not have a religious basis. Mr. Moheq says, “Some of these regulations have no fixed religious basis. For example, stoning or putting someone under a wall, are not mentioned in the Quran. They are mentioned in implicit and established Hadiths, and cannot be the basis for issuing regulations, in which human lives are at stake.”

What is the Opinion of Legal Experts on the Taliban Court’s Laws?

One of the country’s legal experts, who does not want to be named in this report for security reasons, told the Hasht-e Subh Daily that “Confirmation of Qisas and Enforcing Sharia Punishments such as stoning, whipping, amputation, and execution is very difficult, and in some cases impossible to enforce, and even with slight doubt, the judge cannot impose such penalties. For this reason, the [previous] Afghan government’s criminal laws regulated corporal punishments in the criminal law, not Qisas and Enforcing Sharia Punishments.”

The legal expert adds that “determining a penalty that violates human dignity is prohibited according to the Constitution of the Republic era and its Criminal Code. Many Enforcing Sharia Punishments such as stoning and amputation of limbs are against global human rights values and human dignity.” The legal expert also adds, “During the Republic era, any sentence that was issued was following laws of Afghanistan and the law was clearly defined in the constitution. In the criminal laws of the previous government, any court ruling had to be lawful, meaning that the crime and punishment were mentioned in the law.”

This legal expert speaks about the amputation of limbs and the implementation of Islamic punishments: “In past criminal laws, the principle of proportionality of crimes and punishments was taken into account; meaning that the punishment for a crime should be proportionate to the crime. For example, if someone steals a cheap item of little value, but when they are sentenced to amputation, the punishment is very severe and disproportionate to the crime.” He emphasizes that court orders should be based on corporal punishments, as determining the Qisas or other Islamic punishments is a difficult and even impossible task for a judge.

This legal expert asks, “On what basis have they proven that the accused individuals have been sentenced to Qisas and Enforcing Sharia Punishments? Has the accused’s case of adultery been proven according to what is stated in Hanafi jurisprudence and Sharia law? Such a thing is currently not possible. No mature adult would commit an act where four simultaneous witnesses would catch them in the act of adultery. The concern is that there is no fair and impartial investigation in Taliban courts, and there is coercion and force. The accused does not have sufficient opportunity to defend themselves and may not have a defense lawyer. These are the issues that are not considered in the Taliban regime.”

According to this legal expert, in a government where the rule of law exists but human rights values and principles are not respected, the criminal grounds for which the punishment is executed must be eliminated, not increased. Because human rights conventions obligate governments to minimize crimes that are subject to the death penalty and not predict and impose punishments that violate human dignity.

What is the reaction of the Afghanistan Independent Human Rights Commission (AIHRC)?

According to Naeem Nazari, the caretaker of the Afghanistan Independent Human Rights Commission (AIHRC), the execution of sentences by the Taliban under their rule is described as a “Kangaroo Court”. Mr. Nazari stated that the Taliban’s court rulings are carried out without the presence of law, prosecutors, defense attorneys, and defined legal judicial procedures, and are no different from a “Kangaroo Court”.

The caretaker of the Afghanistan Independent Human Rights Commission adds: “The Taliban have no legitimacy. The Taliban’s strict rulings in the absence of law, prosecutors, and defense attorneys, and defined legal judicial procedures are nothing but a form of ‘Kangaroo Court’. Instead of calling it the Taliban Supreme Court, it is better to use the term ‘Tyrannic Court”’ for this group. The methods used by the Taliban are in stark contrast to fair judicial standards and human rights values and involve inhumane torture. These methods are by no means Islamic, human, or just.” Mr. Nazari calls on the world not to remain silent in the face of the “Structural Crimes” of the Taliban, emphasizing that “the world should not be silent in the face of such organized and terrifying crimes of the Taliban.”

What is the reaction of human rights activists to these sentences?

In a conversation with the Hasht-e Subh Daily, human rights activist, Fariha Easar, said that the Taliban do not believe in the “alphabet of the court and justice,” and the name of the court cannot be put on their “Kangaroo Courts”. According to her, the Taliban issued sentences against defendants without any legal process.

This human rights activist believes that all legal and judicial systems have been paralyzed under Taliban rule, and any kind of “Kangaroo Court” is expected. She believes that with the Taliban’s control over Afghanistan, Oligarchy, and Anarchism have taken over the country, and in such an environment, justice or courts do not have any meaning. Ms. Easar believes that the stoning sentence issued by the Taliban is mostly imposed on women.

The human rights activist adds: “The Supreme Court of the Taliban, which cannot be called a court in the true sense, mostly targets women for prosecution and punishment. Given what we know about the identity, ideology, and regime of the Taliban, demolishing walls on the prisoners was not unpredictable. The Taliban is a terrorist group that has no belief in law, systems, administration, management, and justice. They have no faith in any form of trial, verdict, justice, and accountability in a justice-centered system. With the continuation of Taliban rule, we should expect worse news than this. This group hides its crimes under the guise of court orders by setting up its “Kangaroo Courts”. Since the fall of the country to the Taliban, many reports have been published about their vigilante justice, most of whose victims have been women.”

The Taliban have issued these orders and verdicts while over the past two years, they have punished many men and women in vigilante justice. In the latest case, a member of the group shot and killed a young boy and girl in the Kishindih district of Balkh province without a court order in vigilante justice. On the other hand, Abdul Ghani Haqqani, the former head of the Taliban’s counterterrorism command in Qandahar province, was released from prison on the orders of Hibatullah Akhundzada, the leader of the Taliban. He was arrested six months ago by the group’s intelligence agency on charges of rape and sodomy in the Spin Boldak district of Qandahar province. Similarly, Mawlawi Alam Gul Haqqani’s brother, the former head of the passport office in the Taliban regime, was arrested by the group’s intelligence agency about a year ago in a gathering where the dancing boys and girls, bottles of wine, and several passport books were caught with him. He, who was also accused of commission work in the Passport Office, has not yet been punished.