Criminal law, while upholding the principles of punishment, deterrence and justice, provides for mitigating circumstances in some cases. In family dishonour cases, courts have considered the background of such dishonour to determine the culpability of a defendant. Honour killings are typically perpetrated upon women by male members of their family. Such killings are reported in
a wide number of countries according to a 2002 UN report.
Why Honour Killings are legally problematic
Honour killings are often equated to the defence of ‘sudden and grave provocation’, meaning the subject was suddenly and gravely provoked such that any reasonable man would have reacted the same way. Mitigation for honour killings cannot be determined based on what is “reasonable” conduct because it is heavily infused with cultural, social and emotional
feelings, which are driven by male desires to avenge the dalliance of a female.
Whilst some conducts that are reasonable, or even sympathetic, can or should be mitigated - the very foundations and existence of criminal law is to protect victims, to protect the vulnerable and to guard public safety. Therefore, even where the rights or predicaments of the defendant is concerned, there must be an objective balancing test between “reasonableness” of criminal conduct on the one hand, and the integrity of life and human dignity on the other.
Why honour killings violate the fundamental precepts of Shariah Law
The question we pose to drafters of the new criminal code is: how do you strike an objective and fair balance of “interests” between victim and perpetrator, within the constraints of the Afghanistan Constitution?
In other words, if murder is excused on the basis of honour, how do we reconcile it with Article 23 of the Afghan Constitution, as well as, Islam. In both Article 23 of the Constitution and Islam, the default state of law is to preserve human life and dignity.
Click here to view the whole brief.