Afghanistan's Criminal Policy in Supporting Cultural Rights from the Perspective of Islamic Teachings and International Documents

Abstract

Based on social reality, cultural rights are a branch of human rights which is of fundamental importance compared to their other sub-branches. Based on this fact, their religious and customary position is such that according to Islamic teachings, their provision is considered as one of the objectives of the mission of the Prophets, and at the international level, it is also part of many international requirements. Therefore, here, the question is what measures Afghanistan's criminal policy has taken to protect these rights, which are worthy of the position of cultural rights based on human needs, Islamic teachings, and international documents? Considering the lack of any theoretical and research activity in this field, the necessity of discussing this topic seems inevitable. Therefore, the present article examined the penal-cultural policy of this country (with inductive, citation, and comparative methods and according to Islamic teachings and international documents), from the aspect of criminalization and the way of criminal response to the violation of cultural rights and reached the following results: (1) What can be mentioned as the privilege of the legal system of this country, in relation to cultural rights, is that this legal system, in harmony with Islamic teachings and international documents, has tried to recognize major examples of cultural rights, both in the constitution and in ordinary laws and regulations. This is considered a positive step in protecting these rights. (2) Despite what was mentioned, according to the mentioned criminal policy, violation of some recognized examples of these rights is not criminalized either at all or transparently. Considering the "principle of the legality of crimes", this creates a problem in the way of protecting these rights, and it seems to be the weak point of this policy. In addition, determining the type, amount or method of implementing criminal responses is rather influenced by the international or economic considerations of the government not the degree of the ugliness of the act, the damage caused to the social and moral system, the type of criminal motive or the social and cultural attributes of this country. For this reason, the way to respond to crimes against cultural rights seems to be not very compatible with the "principle of justice and proportionality of crimes and punishments" nor effectively provides the purposes of the “utility principle of punishment” in criminal policy.