Do It for the Kids: The Afghan Juvenile Code in Practice

• Author: Christopher W. Carlson
• Position: George Washington University Law School
• Pages: 555-582

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2015 e Institute for Migrant Rights Press

555

DO IT FOR THE KIDS

THE AFGHAN JUVENILE CODE IN

PRACTICE

ChristophEr W. Carlson Jr.

George Washington University Law School

E-mail: ccarlson@law.gwu.edu

is article assesses and compares Afghanistan’s juvenile procedures with the

systems and norms advocated by the United Nations (“UN”). e Afghan

Juvenile Code of 2005 is compared with the UN Convention on the Rights of

the Child’s four key guidelines. e four guidelines include: (1) imprisonment

of juveniles “shall be used only as a measure of last resort”; (2) any such

imprisonment shall be “for the shortest appropriate period of time”; (3) juveniles

who are in prison shall be “separated from adults”; and (4) they shall have

the right to maintain “family contact.” ese guidelines serve as a medium

through which the international community can illustrate the broad principles

of protection and rights for children that should universally be upheld. e most

striking contrast between the Afghan system and the systems in most member

countries of the UN is the dominant role that autonomous Afghan tribes play

within the criminal justice system. ese tribes, which internally administer the

criminal justice system, are deeply ingrained within the Afghan state and will

likely never be fully centralized. Taking this into consideration, this essay focuses

on Afghanistan’s formal adjudication model and explores methods of connecting

existing informal and formal adjudication structures to achieve transparency

and legitimacy within the Afghan tribal system.

Keywords: Children Rights, Comparative Law, Islamic Law, Juvenile Law,

Criminal Justice System, Law Reform.

The Indonesian Journal of International & Comparative Law Volume II Issue 3 (2015) at 555–82

Christopher W. Carlson Jr.

556

I. INTRODUCTION

Intense light entered his eyes as a black cloth bag was lifted o his head.12

Regaining awareness of his surroundings, a door swung open, and he was

led within the Afghan courtroom by the National Directorate of Security

(NDS).3 e 16-year-old was alone and lacked legal representation.4 e

indictment, which alleged charges of suspected terrorism, stated that the

teenager was traveling with several strangers when a weapon was found

inside his taxi.5 e ocer of the court read a confession, which had

been composed by the NDS.6 is confession was signed by the illiterate

teenager.7 is teenager claimed to have signed the confession while be-

ing beaten.8 e accused displayed visible marks on his hands and arms

to the three-judge tribunal.9 However, no active inquiry was made into

mitigating factors. Social service factors, such as the child’s family history,

were ignored.10

is twenty-minute trial lacked both evidence and witnesses. Despite

this, the Afghan tribunal sentenced the teenager to eight years in prison—

quadruple the statutory maximum punishment of two years.11 When

asked after the trial how they determined the teenager’s sentence, the

1. J C, art. 22 (2005), available at http://www.asianlii.org/af/legis/laws/

jlcogn846p2005032313840103a495/ (Afghanistan) (illustrating that publishing

the general courtroom procedure is legal, but names of children “shall be kept

condential in order not to prejudice their reputation and interests”).

2. K M, F S G 4 (2013) (eluding to fact

that these guidelines were distributed to Afghanistan’s judges informally; a copy of

these guidelines are available with author upon request).

3. Id. (noting the NDS is the intelligence agency in Afghanistan).

4. Id.

5. Id.

6. Id.

7. Id.

8. Id.

9. Id.

10. Id.

11. Id.