Written by: Shekeba Ahmadi, Humaira Rasuli and Natasha Latiff
Endorsed by: Afghanistan Forensic Sciences Organisation, Canadian Council of Muslim Women, Medica Afghanistan and Afghanistan Women's Network
30 October 2019
To the Respected Cabinet Legislative Committee:
1. Women for Justice Organization (WJO) is a non-profit legal aid firm in Kabul, Afghanistan, focused on public interest litigation. We represent victims of human rights violations in court, dispute-resolution committees and UN Special Procedures. We do this through strategic legal action and client-led advocacy in judicial and non-judicial settings.
2. We write this petition to bring to your attention the forthcoming amendment of Article 640(2) of the Penal Code on virginity examination.
3. We are informed that on 8 October 2019, at the appeal of the Afghanistan Independent Human Rights Commission (AIHRC), the Cabinet Judiciary Committee agreed to amend Article 640(2). We were also informed, however, that the Committee approved the provision of court-ordered virginity examinations.
4. We would like to state that pursuant to Article 450 of the Afghanistan Penal Code on torture and cruel, inhuman and degrading treatment, and the Convention Against Torture, the government is prohibited from enacting legislation to permit virginity examination and all other forms of rectal and vaginal examination conducted under the circumstances described in Article 450.
Such examinations have been recognized under international law as a form of aggravated sexual violence and torture or cruel, inhuman and degrading treatment. Court-ordered virginity examination is therefore prohibited under Article 450 and a judge who orders such examination can be prosecuted for torture or cruel, inhuman and degrading treatment, regardless of the power granted to order an examination under Article 640(2). As the prohibition of torture and cruel, inhuman and degrading treatment is absolute, Article 450 supersedes the power granted to the court under Article 640(2) to do otherwise.
Article 450 on Torture and its Punishment:
(1) Torture is an action committed by a public official or any other official authority or by his/her order; agreement, satisfaction or silence resulting in severe physical or mental pain to suspect, accused, convict or any other persons for the purport of:
(2) Obtaining information about a suspect, accused, convict or any other person.
(4) Coercing or intimidating the person to perform or refrain from an action.
5. We are concerned that by enacting legislation on virginity examination within the circumstances set out under Article 450, we are exposing members of the government in the referral chain – from ‘order’ to ‘commission’ – to a risk of prosecution under Article 450, and a complaint to the Committee on the Convention Against Torture, in the near or distant future.
6. Further, under Article 335 (6) and (7) of the Penal Code, acts of sexual violence and torture committed as part of an organizational policy are prosecutable as crimes against humanity.
Article 335 on Commission of Crimes against Humanity:
Commission of the following acts is considered a crime against humanity provided it is committed intentionally and knowingly as part of a widespread or systematic attack directed against a civilian population:
(7) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other type of sexual violence at that level.
7. The Office of the Prosecutor of the International Criminal Court has been made aware of the commission of virginity examinations as a crime against humanity. Therefore, the decisions and deliberations of members of the government regarding virginity examination should not be taken lightly. Torture and crimes against humanity, especially when committed on a sexual organ and on vulnerable groups of society – are globally classified as the gravest crimes committed to humankind.
8. The government is exposing its civil servants (from prosecutors to forensic medical personnel) to prosecution under Afghan law and examination by the Committee Against Torture and potentially the International Criminal Court. This is not a risk worth taking, for evidence which has negligible evidentiary value. Such examinations do not yield reliable medicolegal evidence for proof of crime.
9. This is not to say that physical and pelvic examinations of rape victims to recover evidence should be prohibited. We agree that, with the informed consent of rape victims, psychological, physical and pelvic examinations can be conducted to recover evidence (note pelvic examinations are not the same as virginity examinations).Thus, whether an examination is conducted in a lawful or unlawful manner will depend upon whether the examination was conducted strictly in accordance with the Ministry of Public Health (MOPH) 'Gender Based Violence Treatment Protocol 2014' (GBV Treatment Protocol).
10. By following the GBV Protocol (which includes procedures for informed consent), valid medicolegal evidence can be obtained in a manner that respects victims’ bodily autonomy and choices. To this end, any amendment to Article 640(2) must prohibit judicial authorities from creating adverse consequences for any victim who does not consent to the examination – for otherwise consent is not voluntary – and procedures conducted in the absence of informed consent should be prosecuted as torture under Article 450. The line that divides lawful examination and torture will depend upon the enforcement of informed consent procedures, and strict adherence to the prescribed manner of examination. To mitigate the risk of prosecuting civil servants for torture, standard operating procedures must be put in place to monitor and enforce informed consent procedures.
11. We will appreciate an opportunity to be heard before the Committee on the above points.
12. As the forthcoming amendment of Article 640 (2) has implications for the legality of the Committee’s decisions, we respectfully request your urgent consideration of the aforementioned issues.
Women for Justice Organization