The International Human Rights Framework on the Right of Peaceful Assembly
The Islamic Republic of Afghanistan is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the 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 is not a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.
There is no regional human rights treaty for Central Asia to which Afghanistan could adhere.
The Domestic Legal Framework on the Right of Peaceful Assembly
According to Article 36 of the 2004 Constitution of Afghanistan:
The people of Afghanistan shall have the right to gather and hold unarmed demonstrations, in accordance with the law, for attaining legitimate and peaceful purposes.
Afghanistan has a 2003 Law on Gatherings, Demonstrations and Strikes that is potentially being replaced. The 2003 Law requires the organisers of an assembly to inform the police in writing 24 hours in advance. Only Afghan citizens have the right of assembly.
In July 2017, the Government of Afghanistan introduced a draft law to replace it. After civil society organisations and the Afghanistan Independent Human Rights Commission expressed concern about the potential limitations to freedom of assembly that the law might generate, it was amended and passed on 5 September, by presidential decree, before transmittal to the Parliament on 2 October 2017.Situation of human rights in Afghanistan and technical assistance achievements in the field of human rights, Report of the United Nations High Commissioner for Human Rights, UN doc. A/HRC/37/45, 21 February 2018, para. 76.The parliament rejected the draft law but there have been fears that attempts will be made to pass a similar text.
A review of the first draft of the law was undertaken by the Aghanistan Analysts Network. The reviewers concluded that of the many proposed changes to the existing law, some were for the better. But:
most of the changes curtail the freedom of assembly: more restrictions have been added to the right to protest, more responsibilities have been given to the organisers of protests, and more authorities given to the police (who now have fewer responsibilities).
The most substantive change is the addition of new provisions that introduce restrictions to the permitted time, subject, manner and place of demonstrations, strikes and gatherings, as well as limitations to the right of participation. Some of these restrictions may violate the constitution.
According to Article 8 of the draft law, demonstrators would only have had the right to protest when they have “reform objectives”, meaning objectives that aim to improve the “situation of the country socially, economically, politically, culturally, artistically and in terms of [workers’] unions and security". Article 21(1) listed the characteristics of unlawful protests, stating that “gatherings, strikes, demonstrations and sit-ins on the basis of ethnic, religious and regional demands are not allowed.”
The existing restrictions in the 2003 Law on Gatherings, Demonstrations and Strikes would have been expanded to include demonstrations during an election, referendum, or Loya Jirga and would also have prohibited any sit-in that lasted more than three days. The ban on any kind of protests during a state of emergency, already in the 2003 Law, was to remain.
The 2003 Law on Gatherings, Demonstrations and Strikes distinguishes two types of places: public and private. "Public places" refers to roads, squares, parks and other places where people can freely move and assemble. "Private places" refers to an area where movement and assembly is subjected to the permission of the owner, possessor, or custodian officials. The new draft would have prohibited gatherings, strikes, demonstrations, and sit-ins in private places “if necessary”, though without defining the term "necessary".
The current Assembly Law bans protests by members of the Afghan security forces and foreign citizens (who could be expelled from the country). It also prohibits all kinds of protest when security concerns exist but does not clearly defines the term "security concerns".
The draft law would have given new responsibilities to the organisers of demonstrations, gatherings, strikes, and sit-ins, making the organisers responsible for any unlawful action that happens during the protests, regardless of whether they had any role, whether active or passive, in the unlawful act.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
Afghan domestic law expressly regulates police use of force through the 2005 Police Law. According to Article 20, the police may use force under "due circumstance", but should "if possible", use the "lowest degree" of force.
The Afghan Police Code of Conduct, an ethical commitment and a collection of standards governing the behaviour of police officers, provides that with respect to use of force:
I will use force when necessary and only to the extent absolutely required for the performance of my duties. I will never employ unnecessary force or violence. I will use force as a preventive tool only when discussion, negotiation and persuasion have been attempted unsuccessfully.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
According to Article 23 of the 2005 Police Law of Afghanistan, the police cannot use firearms and explosive devices against children. Article 24 of the Law, though, provides that:
The police can apply weapon or explosives against a group of people only if it resorted to offensive acts of disturbing the security by means of arms, and if the use of other means of force applied against them individually has proved ineffective. In this case it is imperative to first announce the use of weapon or explosives by giving at least three verbal warnings followed by three gunshot warnings and that this action should happen within the provisions of the law and be based on a sound decision.
The provisions in Article 24 do not comply with international law. They potentially allow indiscriminate use of firearms against participants in an assembly.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
Afghanistan has not come before the Human Rights Committee in recent years. In the course of its Universal Periodic Review under the Human Rights Council, a joint submission by stakeholders called on the government to
adopt best practices on the freedom of peaceful assembly, to ensure that proposals to tighten laws on the freedom of peaceful assembly, which were defeated ... in 2018, are not brought back under a new name or a different process. They also recommended to immediately and impartially investigate all instances of extrajudicial killing and excessive force committed by security forces, including while monitoring protests and demonstrations.
The stakeholders further called on the Afghan authorities to
publicly condemn the use of excessive and brutal force by security forces in the dispersal of protests, and bring the perpetrators to justice and provide effective remedy, and refrain from threats and interference connected with peaceful assemblies conducted by opposition political groups and ensure that the right to freedom of peaceful assembly is extended, without discrimination, to all groups in Afghanistan.