(New York) - The Afghan government should hold accountable those who seek to impose brutal customary punishments such as baad, where women and girls are given as compensation for crimes, Human Rights Watch said today. In order to eradicate such abusive practices, the government should strengthen implementation of the Elimination of Violence Against Women law, sending clear signals that such practices will no longer be tolerated by the state.
"There's a law against giving Afghan women away to pay for the crimes of their families but it still happens," said Aruna Kashyap, women's rights researcher at Human Rights Watch. "The government should punish those who treat women like family property."
Baad is one of the most abusive customary practices in Afghanistan, where girls or women are given to an aggrieved family to "compensate" for a crime, a punishment usually decided by a local jirga (council). Jirga members interviewed by Human Rights Watch presented baad as a more "restorative" form of justice than revenge killings or confiscation of property. One Herat-based jirga member said, "Instead of killing the brother [in revenge] it was much better to give this girl as baad. She was also killed in a way but if they killed the brother then the enmity between the two tribes would continue for centuries."
Similarly, another Kapisa-based jirga member said, "If they didn't give her away [as baad], the man [from the other family] would take away the house. And the 13 people who lived in that house would come on the streets. In every family one has to make a sacrifice."
The extent of the practice of baad throughout Afghanistan has not been documented. Human Rights Watch conducted preliminary research between December 2009 and June 2010, in order to document a number of cases in Kabul and surrounding provinces. According to women's rights activists interviewed by Human Rights Watch, cases of baad regularly occur, involving babies, girls, adolescents, and adult women.
Baad is a criminal offence under article 517 of the 1976 Afghan Penal Code, but the article only applies to widows and women above age 18, and the sentence for perpetrators of baad cannot exceed two years. Despite having been partially criminalized for more than 30 years, many women and jirga members interviewed by Human Rights Watch were not aware of the law or the prohibition of the practice.
The penal code provisions against baad were supplemented by the Elimination of Violence Against Women law, passed by President Hamid Karzai through a presidential decree in 2009, while the Afghan parliament was in recess. The 2009 law criminalizes baad, increasing potential sentences for baad up to 10 years, extending its application to girls under age 18, and widening the scope of those who could be considered complicit in the crime.
But several barriers to the enforcement of the law exist, most importantly the lack of political will to implement it, even though article 79 of the constitution categorically states that a presidential decree has the force of law, until or unless it is rejected by parliament, which has not occurred. Human Rights Watch has been told that some senior government officials, judges, and police do not consider the 2009 law as being in force, and police routinely refuse to register complaints under the law. The authorities need to take urgent measures to spread awareness about the law and train all law enforcement officials about its provisions.
"The Afghan authorities should ensure that communities, religious leaders, prosecutors, judges, and the police, know that baad is illegal," said Kashyap.
Human Rights Watch spoke with Nazia N. (name changed) in February 2010. Nazia N., age 19, had left her province to escape a forced marriage.
"Nine months ago I was engaged to my aunt's son but I did not want to marry him," she said.
Finding that her pleas fell on deaf ears, Nazia left home. Her escape resulted in a dispute between the two families: "They had bought clothes and jewelry for me," she explained. Nazia confirmed that her family had received gifts as payment ("bride price") but was not sure what the amount was. Later she learned from her mother that the groom's family had asked that a jirga should settle the dispute:
There was a jirga and the jirga has given my older sister in baad to the boy who was supposed to marry me. They [the groom's family] have taken back the clothes and jewelry they gave me. Now they are also asking for money from my family. I am very worried about what they will do to my sister. But what can I do?
An officer in the Afghanistan Independent Human Rights Commission told Human Rights Watch of a case in Kabul province in January 2010, when a family gave two girls, ages 3 and 6, as baad. While the 3-year-old was sent to Logar province to the man's relatives, the 6-year-old remained in Kabul. Both girls were eventually returned to their parents after intervention by the Afghan Independent Human Rights Commission. But the officer stated that very few cases get reported to local authorities.
Human Rights Watch also documented cases where girls given in baad became victims of domestic violence with no real mechanism for escaping from violence apart from risking their lives by running away.
Bibi Aisha told Human Rights Watch about her harrowing experience of being given away in baad to make amends for an attempted murder by her uncle. Bibi Aisha recalls her misery when she was sent away to her husband's house:
One night when I was 16 years old, my father gave my hand to my father in law's hand... I didn't know anything about baad. I was shocked at what was happening to me. I asked my dad where I am going and he said, "You're married now." My husband wasn't there. He was in Karachi. I went to Kandahar province to stay in my in-law's house. I stayed there for almost three years. My in-laws were beating me terribly. They were always telling me, "Your uncle tried to kill us."
Aisha tried to escape but the police released her to her father-in-law. After her release, she was brutally attacked and her nose and ears were cut off. She survived and found refuge in a women's shelter.
Bibi Aisha's case received much public attention after her photograph was published on the cover of Time magazine. With the support from women's rights groups, she was flown to the US to have reconstructive surgery.
In another case Amina A. (name changed), age 21, described witnessing Fauzia F. (name changed) being ill-treated at the hands of Amina's aunt. According to Amina, a jirga ordered that Fauzia be given in baad to her aunt's family because of a murder that was committed by Fauzia's brother. Fauzia was 12 when she was given in baad. Describing the relationship between mother-in-law and daughter-in-law, Amina said:
My aunt hated her [Fauzia.] She kept saying she would never forgive Fauzia because her brother killed her son. She would beat her and not give her food. Pull her hair. Whenever I saw Fauzia she was very sad. She would not say very much.
Since Amina's parents left her province, Amina has not been able to visit her aunt or Fauzia and did not know how Fauzia was at the time Human Rights Watch spoke with her in February 2010.
Providing comprehensive protection services for women and maintaining contact with them is key to protecting women and girls from harmful traditional practices.
In one instance that Human Rights Watch documented in Kapisa province, Wasifa W. (name changed) disappeared in 2008 after being given in baad. Local people told Human Rights Watch that they believed she was killed by her family to save their "honor." Human Rights Watch spoke with Hasina H. (name changed), Wasifa's friend who lived in the same village. Recalling what happened to Wasifa, Hasina said:
Before Wasifa I was not very concerned about jirgas. I never knew what happened there. But after Wasifa's story I am so scared of the word [jirga] and pray that I die before such a thing [having a case dealt with by the jirga] ever happens to me.
According to Hasina, Wasifa was 13 when the jirga ordered her father to give her in baad to a creditor as compensation for an overdue loan. Wasifa did not want to be married to him and escaped to Kabul. A cousin traced her in Kabul and convinced her to return home promising her that she would not be forcibly married. Neighbors saw Wasifa on the day she returned, but she has not been seen since then in nearly two years.
Describing how scared she has been since Wasifa disappeared, Hasina said:
We all know that the family killed her but no one talks about it. Since then everyone in the village and even in our families remember Wasifa as an example for us to obey our parents. Now we girls keep quiet and nod our heads...I cannot read and write, but I know that Allah will never forgive Wasifa's family for taking her life this cruelly... Some nights Wasifa comes to my dreams and I feel so scared, I am scared that this will happen to me or my sisters. In my heart I hate and pray against the elders who agreed with Wasifa's father that she should be sacrificed for her father. Allah will never forgive them.
The baad cases also highlight the urgent and continued need for safe homes and shelters for girls who escape forced marriages and domestic violence. In order to bring an end to the practice a range of measures is required, some of which are outlined in the Elimination of Violence Against Women law. These include raising awareness, improving girls and women's access to shelters when their lives are in danger, and investigating and prosecuting baad cases.
In recent years there have been efforts by the US government and Afghan leaders to create a legislative basis for the recognition of local jirga decisions. This has been partly motivated by the need to standardize jirga decisions and make them compliant with Afghan law. The US government has advocated for the promotion of traditional dispute resolution as part of a counter-insurgency strategy that identified the justice deficit as creating support for the Taliban. USAID allocated $25 million dollars to support "traditional and informal justice sector programming" in Afghanistan in 2010.
Justice reforms driven by counter-insurgency strategy are unlikely to prioritize human rights concerns, particularly when they legitimize traditional dispute mechanisms that are often abusive, Human Rights Watch said.
While the most recent draft of the law seen by Human Rights Watch addressed many concerns, problems remain. US strategy aims to assist the "re-emergence" of traditional dispute resolution in areas cleared of the Taliban, but it will be extremely difficult to ensure human rights compliance in these areas, requiring a comprehensive implementation program. Furthermore, while the draft law seeks to regulate jirga membership and aims to ensure that women are included, the government has not developed a plan outlining practical measures to overcome local resistance to women's participation. Human Rights Watch has documented the security challenges facing women in public life, especially in insecure areas, including those under Taliban control. Female teachers, government officers, and health workers have been targeted for harassment and even assassination. Attempts to integrate women into jirga structures should include efforts to minimize any potential backlash.
"Afghan women who work in public life frequently face a backlash from conservative factions within their communities," Kashyap said. "If the government is serious about making jirgas open and fair to all, it needs to provide more than paper promises."
Given the government's limited capacity to oversee or monitor jirga decisions, it would be better off using national and international resources to strengthen its court system, Human Rights Watch said. The courts are still inaccessible to many in rural communities, especially women. On March 7, 2011, Afghan women's rights groups once again demanded increased support for the courts system instead of the jirga system.
Efforts to provide greater oversight of traditional dispute resolution in order to reduce the prevalence of human rights abuses such as baad would be welcome. However, Human Rights Watch urged the government to keep its primary focus on efforts to strengthen the formal court system and improve women's access to justice. This would include extending its reach into rural areas, greater access to legal aid in rural areas, the continued growth of police units staffed by women, the development of a witness protection program, flexibility about where sensitive cases can be heard, and protection for prosecutors and judges.