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APPENDIX: APPLICABLE LEGAL STANDARDS

Torture
The term "torture" as used in this report is defined by Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment:

[T]he term torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity. It does not include pain and suffering arising only from, inherent in or incidental to lawful sanctions.266

Afghanistan ratified the Convention against Torture in 1987. Torture is also universally acknowledged to be illegal under customary international law. It is also prohibited by the International Covenant on Civil and Political Rights (ICCPR), to which Afghanistan is a party.267

Afghan domestic law specifically prohibits torture. Under the Bonn Agreement of December 2001, Afghanistan's 1964 constitution is currently valid and in effect in Afghanistan and will remain so until a subsequent constitution is approved.268 Article 26 of that document specifies that:

Torturing a human being is not permissible. No one can torture or issue orders to torture a person even for the sake of discovering facts, even if the person involved is under pursuit, arrest or detention or is condemned to a sentence. Imposing punishment incompatible with human dignity is not permissible.

Freedom of Expression and Association
The right to freedom of expression, and the only grounds on which it may be restricted, are set out in article 19 of the ICCPR: "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."269 States are only allowed to restrict freedom of expression in very limited circumstances: the right to freedom of expression may be "subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals."270 Even when these conditions are met, states do not have unlimited power to impose restrictions on expression, as the Human Rights Committee, the international body responsible for interpreting the obligations of the ICCPR, has made clear: "when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself."271

The right to freedom of association is defined by Article 22 of the ICCPR: "Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests." As with the right to freedom of expression, under article 22, "No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others."

Afghanistan's 1964 constitution provides for the rights to freedom of expression and association. Article 31 protects the freedom of expression:

    Freedom of thought and expression is inviolable. Every Afghan has the right to express his thoughts in speech, in writing, in pictures, and by other means, in accordance with the provisions of the law. Every Afghan has the right to print and publish ideas in accordance with the provisions of the law, without submission in advance to the authorities of the state. The permission to establish and own public printing houses and to issue publications is granted only to the citizens and the state of Afghanistan, in accordance with the provisions of the law. The establishment and operation of public radio transmission and telecasting is the exclusive right of the state.

Article 32 protects the freedoms of assembly and association:

    Afghan citizens have the right to assemble unarmed, without prior permission of the state, for the achievement of legitimate and peaceful purposes, in accordance with the provisions of the law. Afghan citizens have the right to establish, in accordance with the provisions of the law, associations for the realization of material or spiritual purposes.

    Afghan citizens have the right to form political parties, in accordance with the terms of the law, provided that:

      1) the aims and activities of the party and the ideas of which the organization of the party is based are not opposed to the values embodied in this constitution.

      2) the organization and financial resources of the party are open. A party formed in accordance with the provisions of the law cannot be dissolved without due process of the law and the order of the Supreme Court.

Discrimination on the basis of race, sex, language, religion, political or other opinion, or national or social origin is prohibited by the ICCPR as well as the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, and International Convention on the Elimination of All Forms of Racial Discrimination, to all of which Afghanistan is a party.272
Similarly, article 25 of the 1964 constitution provides: "The people of Afghanistan, without any discrimination or preference, have equal rights and obligations before the law."

266 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, adopted December 10, 1984, G.A. Res. 39/46, U.N. Doc. A/39/51 (entered into force June 26, 1987, and ratified by Afghanistan April 1, 1987).

267 International Covenant on Civil and Political Rights (ICCPR), art. 7, opened for signature December 16, 1966, 999 U.N.T.S. 171 (entered into force March 23, 1976, and ratified by Afghanistan January 24, 1983).

268 Agreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions, Bonn, Germany, signed December 5, 2001. Subsequent Afghan constitutions in 1976, 1987, and 1990, which are no longer in effect, also prohibited torture.

269 ICCPR, art. 19(2).

270 ICCPR, art. 19(3).

271 U.N. Human Rights Committee General Comment 10, Freedom of Expression, Nineteenth Session, 1983, (hereafter, General Comment 10), para. 4.

272 ICCPR, art. 2(1); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), art. 2, G.A. Res. 34/180, U.N. Doc. A/34/46 (entered into force September 3, 1981, and ratified by Afghanistan August 14, 1980); Convention on the Rights of the Child (CRC), art 2(1), adopted November 20, 1989, G.A. Res. 44/25, U.N. Doc. A/44/49 (entered into force September 2, 1990, and ratified by Afghanistan March 28, 1994); and International Convention on the Elimination of All Forms of Racial Discrimination (CERD), art 5(e), adopted December 21, 1965, G.A. Res. 2106 (XX), 660 U.N.T.S. 195 (entered into force January 4, 1969, and ratified by Afghanistan July 6, 1983).

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