Afghanistan

Enforcement

2017

The US Department of State has consistently reported that members of the LGBT community face harassment and arrest by state authorities. In 2017 “members of the LGBT community reported they continued to face discrimination, assault, rape, and arrest by security forces and society at large.”  In 2016 NGOs reported police arrested, detained, robbed, and raped gay men. In 2013 US Report on Human Rights Practices in Afghanistan noted a significant increase in police detentions during that year, as well as increased rates of violence and harassment.]

2015

It was reported that a parallel justice court sentenced three gay men (including one 17 year old) to execution by “wall-toppling”. The 17 year old survived and was allowed to live.

2013

The UK Country of Origin Report on Afghanistan indicated that the death penalty has not been applied since the end of Taliban rule.

In March, An English language Afghan news source, Khaama Press, provided statistics on the number of gay men prosecuted during the year, provided by Major General Zahir Zahir, the Commander of Kabul City Police and one-time recipient of a EUPOL Best Practice Award. According to the General, Afghan police forces arrested 97 individuals in relation to homosexuality. It is not immediately evident whether this statistic comes from the country at large, or Kabul city alone.

Persecution and Discrimination

2019

It is reported that “LGBT people face significant violence and discrimination from the State, their own families, and society at large. However, there is sparse evidence, anecdote and date being reported on the situations of sexual and gender minorities in the country, and there are no SOGI advocacy organisations or networks known of.”

2017

The UK Home Office was criticised for issuing asylum application guidelines that stated, “While space for being openly gay is limited, subject to individual factors, a practising gay man who, on return to Kabul, would not attract or seek to cause public outrage, would not face a real risk of persecution.” The guidelines issued by the Home Office were at odds with United Nations guidelines on refugees which state a person should not be required to conceal their identity in order to avoid persecution.

2016

The BBC reported on the experiences of four Afghans who belonged to the LGBT community. All four reported hiding their identities for fear of reprisal and even death. One interviewee stated, “In Afghanistan, being lesbian is seen as un-Islamic. If people found out, the result would be death.”

In Afghanistan, being lesbian is seen as un-Islamic. If people found out, the result would be death.

2013

Whilst persecution and discrimination has been recognised by a number of bodies, there is a particular problem of underreporting. The UN High Commissioner for Refugees (UNHCR) has issued guidance on this issue:

“Given the pervading social taboos related to same-sex relations, there is little information available on the treatment of LGBTI individuals in Afghanistan. What little information there is pertains to gay men and male transvestites; the situation of lesbians, and that of bisexual, transgender or intersex individuals is largely undocumented. The absence of information should not be taken to mean that there is no risk for LGBTI individuals… In light of the strong social taboos, as well as the criminalization of same-sex relations, UNHCR considers that LGBTI individuals are likely to be in need of international refugee protection on account of their membership of a particular social group based on their sexual orientation and/or gender identity, since they do not, or are perceived not to conform to prevailing legal, religious and social norms. It should be borne in mind that LGBTI individuals cannot be expected to change or conceal their identity in order to avoid persecution. Furthermore, the existence of significant criminal sanctions for same-sex relations is a bar to State protection, including where persecutory acts are perpetrated by non-State actors such as family or community members.”

In January a gay man from Afghanistan was granted asylum in Denmark on account of the ‘high risk of persecution’ he would face, were he to return to his home country. A similar decision was reached by the UK Asylum and immigration tribunal.4

2009

A document prepared by the Country Research Section (CRS), Onshore Protection Branch of the Department of Immigration and Citizenship, Canberra; notes a number of instances of state-sanctioned execution whilst the country was under Taliban rule; including instances of men being executed on account of their sexuality by having a wall pushed on top of them by a tank. Whilst the death penalty has not been carried out in recent years, the report emphasises that this remains a possibility: a fact made particularly salient by recent attempts to introduce the death penalty into the Afghan penal code.

Legislative News

2017

Afghanistan’s new Penal Code 2017 came into force on 14 February 2018. Previously Article 427 of the 1976 Penal Code had imposed “long imprisonment” for ‘pederasty’ (encompassing same-sex intimacy).

2014

During its Universal Periodic Review the government rejected recommendations to repeal penal provisions criminalising same-sex sexual relations and to ensure non-discrimination on the grounds of sexual orientation.