Articles

 

International Criminal Court

Aman Riazat

Preface

The International Criminal Court (ICC) is an interesting and important issue in this report. If a crime is committed anywhere in the world, it will be addressed when not secured. This court is so important that it even prosecutes the heads of states without considering their role/position. In addition to other cases, these days, the court has announced that it will address war crimes in Afghanistan. In this report, first, we will make clear the motive behind creation of this court, approaches for addressing crimes committed by heads of states without considering their domestic laws and criticisms attached to this court.

The International Criminal Court is the first internationally authorized and permanent international court in the world. The court was established in Laha, Netherlands, to prosecute genocidal crimes, crimes against humanity, war crimes, and aggression. But later, it officially announced that, after this, it will deal with environmental crimes titled "crimes against humanity".

Although, the idea of establishing such a court, which is authorized to prosecute criminals internationally, was felt in the past too, but took place after the Second World War. On December 9, 1948 The United Nations General Assembly requested the International Law Commission and the Special Committee, composed of government representatives, to examine the possibility of establishing a court that would be competent to prosecute crimes against humanity and genocide. Despite the emphasis of both references on the effectiveness of such a court, this did not happen.

Finally, in December 1995, the United Nations’ General Assembly decided to convene a preliminary committee for establishment of the International Criminal Court, convened twice in 1996 in New York for drafting a temporary constitution. On July 17, 1998, the representatives of countries in Rome, Italy, ratified the statute of the International Criminal Court (ICC), which was implemented in 2002, and the court was established in 2003.

The issues that the court has been addressing, as well as some criticisms from many African countries and the Arab Union, are among the most significant and considerable parts that could introduce the court more in this report.

Finally, this court can even prosecute the heads of those states that commit a crime defined in the Rome statute.Therefore, the differences between this court and other courts, which were created in the past, are listed in this article. What you read in this article is taken from the electronic libraries, major international media, as well as reports and articles published in electronic media.

Necessity and History of Establishment:

The Establishment of International Criminal Court was, in fact, the result of efforts that began after the First World War. The first step towards prosecuting and punishing international criminals was taken in the Versailles Treaty of 1919. Under the treaty, Villem II, the German ruler, had to be tried for some crimes, but he took asylum to the Netherlands, and the Netherlands didn’t refuse him either until he passed away in 1941. (Embassy of Iran, The Laha)

After World War II, for the first time, Article 227 of the Versailles Treaty, pointed out about trial of the emperor of Germany. Articles 228 and 230 also state about trial of 900 people who did war crimes.Although these courts were a drama, but they were an effective and courageous step towards the punishment of the heads of states committing crimes against humanity.

In other words, with the passing of time and the trials of the German and Japanese leaders by the Allies, we saw the evolution of the safety of the heads of states and possibly the dismantling of their safety. In the 90's this move accelerated more quickly, as we began to see the creation of two international courts for the former Yugoslavia and Rwanda, and the approval of the creation of the International Criminal Court (Rome Statute). At that time, whenever a governor of one of the states committed one of the crimes against humanity, he could not invoke the safety of his duty. Therefore, the international community has found the punishment of these people as a requirement for ensuring of justice on the international scene. (Milani and Ferdin; 1395: 49)

December 9, 1948 The United Nations General Assembly requested the International Law Commission and the Special Committee, composed of government representatives, to examine the possibility of establishing a court that would be competent to prosecute crimes against humanity and genocide. Despite the emphasis of both references on the effectiveness of such a court, this did not happen. This process was carried over in the 1973 Convention on the prohibition and punishment of apartheid crimes. In addition, Article 5 of the International Law Commission approved the draft of law on crimes against human peace and security in 1991. (Embassy of Iran, The Hague)

The issue of developing and applying international criminal law with the concept of ​​the principle of independence and sovereignty of countries and the lack of permission to intervene in their internal affairs also seemed impossible. Consequently, the issue of the need for cooperation between countries and their comprehensive action in the fight against international crimes was never taken seriously. For this reason, human societies have continuously witnessed crimes such as genocide, human rights crimes and war crimes. As seen, from the beginning of the Second World War, there have been more than 250 bloody armed conflicts in the world, which took lives of around 170 million people. On the other hand, domestic courts do not have the ability to bring the perpetrators of such crimes to justice and enforce justice.

Although the extensive international cooperation of countries in legal and commercial sectors through the conclusion of bilateral or multilateral treaties is not comparable to such cooperation in criminal matters, but we  dare to say that the process of international cooperation of countries in criminal matters have been left behind at least 50 years from the legal and commercial spheres, but it should be said that the desire for global cooperation and participation in criminal matters, especially through the establishment of an international criminal court, have always put the thoughts/ideas of human in trouble.

Since the establishment of the international community, the issue of international cooperation in criminal matters has been the subject of agenda for the Committee of Experts of the International Community for the development of international law. In 1928, a report from its associated subcommittee was prepared by Professor Shoking, in which all countries were asked to provide diplomatic channels with proposals for international criminal co-operation and its solutions.

Issues such as trade in weapons of mass destruction, drugs, international terrorism, and even commercial crime have pushed the international community into creating special courts. The creation of special international military courts of Nuremberg and Tokyo, after the Second World War,to bring the German and Japanese war criminals to trial, and then creation of another special court titled the former Yugoslavia court to bring the war criminals of the killings of The Bosnian-Herzogoni’s Muslims is the first major step in the design of a modern, sustainable international court. (Ebrahimi, pp. 151-153)

The Nuremberg Court also tried the main criminals on the European front and consisted of eight members from US, UK, French, and Soviet states, each of whom was a major member and one of the members of the Supreme Court.

The Tokyo Court was an international military tribunal for the Far East under the Tokyo Charter.

The International Criminal Court’s Statute of the former Yugoslavia was established on May 25, 1993, and the International Criminal Court's Statute was established in Laha-Netherlands and Arusha-Tanzania to prosecute responsible people for genocide and serious humanitarian violations in Rwanda. It turned out that these two courts have not been created by the victorious parties of the war, butby the UN Security Council; hence,described as the precise definition of the International Criminal Court. (Mokhtari, Lawyers)

In recent years, the determination of many of the countries and international organizations that are fundamentally political in nature has been considered to form an international criminal justice center worldwide in the fight against international crime. This important step has been taken with the ratification of the International Criminal Court’s Statute in July 1998 and after many years of planning, waiting and delivering numerous drafts and approvals by many of the participating countries.

The member states of the international community have agreed that, to ensure national security and enforce criminal laws, it is essential for countries to fight international criminals through international cooperation. (Abrahamid; pp: 151-154)

Finally, in December 1995, the United Nations’ General Assembly decided to convene a preparatory committee for the creation of an International Criminal Court, convened twice in 1996 in New York for drafting a provisional statute. In July 1998, the representatives of countries in Rome, Italy, ratified the International Criminal Court (ICC), which was implemented in 2002, and the court was established in 2003.

The text of the statute was approved by 120 votes in favor against 7 vetoes by Bahrain, China, United States, India, Israel, Qatar and Vietnam. The preparation and approval of the Rome Statute was difficult because some states, such as the United States, opposed not only by the withdrawal of the signing of the Rome Statute, which Clinton signed at the last days of his presidency, but also tried to put pressure on other governments to force them into signing agreements with the US government not to surrender their citizens to the court. According to Article 126 of this Statute, the approval of 60 countries for its implementation was considered necessary.

Specifications of the Rome Statute and Administrative Pillars of the Court:

The Statute of the International Criminal Court is prepared in the official name of the "Rome Statute" and has apreface/introduction, 13 chapters and 128 articles. The statute is accompanied by a final document that addresses the proceedings of the United Nations’ General Assembly on the establishment of the court. The statute, together with the resolution adopted by the Rome Conference, is the names of the governments and non-governmental organizations participating in the conference. The statute of the United Nations is considered as the official document and is therefore arranged in all the official languages of the United Nations (English, French, Arabic, Chinese, Spanish and Russian), all of which are of equal value.

The importance of approving this status is to such extend, that human rights activists, from around the world, announce the anniversary of ratification of this document as the "International Day of Justice" and as one of the special occasions annually. The approval of this document is a milestone in international developments in the field of international criminal justice and individual criminal responsibility and the prosecution of human rights violations. (Ebrahimi, October 2014)

The court alone cannot achieve its goals. The court as the last resort seeks to complete the process rather than to replace the national courts. This court is the first permanent international criminal Court. Contrary, the courts that were established in the past had two similar characteristics: first, all of them were made for a certain amount of time; for example, the court to address crimes committed in former Yugoslavia, which has lost its credibility and ended after prosecution and punishment of the last accused.

Secondly, the jurisdiction of these courts is limited to the perpetrators of a crime. Again, in the example of the Yugoslav court, in accordance with Article 1 of the Statute, this court is competent only for the crimes committed by individuals since 1991. Somehow, they have been responsible for violence. Therefore, the jurisdiction of these courts is limited to specific times and individuals. But the situation with the International Criminal Court differs, it is a permanent court and can address the important crimes committed by any individual.

One of the most important features of this court is its independence. The court is totally an independent entity and is not administered under the supervision of an organization or institute, even the United Nations, but this does not mean full disaffiliation. In this regard, the Court has signed a cooperation agreement with the United Nations, in accordance with paragraph 1 of this article 1: "The United Nations shall recognize the Court as a permanent judicial body." Section 2 of the same article goes on to add: "The United Nations and the Tribunal are mutually committed to respect each other's positions and missions" (Shari at Bagheri, 2007).

Four organs of the ICC

  • Presidency: admin in charge of the division
  • Addressing Divisions: this division has three sub offices.

Primary investigations

Trial

Revision

  • The Court: this office is responsible to investigate crimes under its jurisdiction
  • Registration office: Responsible for non-judicial aspects and services of the court. (Embassy of Iran, The Hague) 

 

Jurisdictions of the ICC and its enforcements

Complementary jurisdiction:

When establishing the International Criminal Court, the issue of the association of this court was raised with the domestic and national courts of the countries and the possible conflict of jurisdiction; in other words, the question was, how the conflict of jurisdiction of the International Criminal Court and the National Courts should be solved? During the process of drafting the Statute of the International Criminal Court, the principle of completeness of court jurisdiction was accepted. This principle was not clear during the preliminary negotiations; however, it was finally approved at the Diplomatic Conference with the absolute majority.

Considering this principle, the National Courts has the primary responsibility for investigating and prosecuting international crimes, subject to the jurisdiction of the Tribunal, and, if the unwillingness, or the ability or the absence of an independent judiciary, is exercised by the International Criminal Court. This is confirmed in the preamble to Article 1 and Article 17 of the Rome Statute. Therefore, based on this basic principle, the International Criminal Court completes the national trials, but is not a substitute for the national court. (Embassy of Iran, The Hague).

Personal jurisdiction

In accordance with Article 5, paragraph 1, of the Rome Statute, the jurisdiction of the Court is limited to the most serious crimes of concern to the international community. The Court, in accordance with this Statute, deals with the following crimes:

  • Genocide
  • Crimes against Humanity
  • War Crimes
  • Land occupations

Genocide:  based on article 6 of the status, Genocide is characterized by the specific intent to destroy in whole or in part a national, ethnic, racial or religious group.

  • Killing members of the group
  • Causing serious bodily or mental harm to members of the group.
  • Inflicting unappropriated life conditions leads to complete or partial body harm
  • Imposing measures intended to prevent births within the group.
  • Forcibly transferring children of the group to another group

Crimes against Humanity: Rome Status, executing any of below ten actions against any civilian population would be considered as Crimes against Humanity. Before introducing these crimes, it is worth mentioning that each of these crimes should be committed against a considerable “population” for example: enforcement of below action against some people or a group of ten or twenty people will not be counted as crimes against humanity.

 The 15 forms of crimes against humanity listed in the Rome Statute include offences such as murder, rape, imprisonment, enforced disappearances, – particularly of women and children, sexual slavery, torture.

  • Murder
  • Extermination

Deliberately inflicting a life conditions for example: deprivation from accessing food and medicines which are intended to eliminate part of a population.

  • Enslavement

Intentional activities intended to buy and sell humans particularly women and children.

  • Deportation or forcible Transfer of population

The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts.

  • Torture
  • Imprisonment or severe deprivation of liberty, contrary to the fundamental rules of international law.

Deliberately inflicting rigorous physical or mental pain or suffering on imprisoned person.

  • Rape, sexual slavery, forced prostitution, forced pregnancy, compulsory sterilization or any other similar forms of sexual violence.

Forced Pregnancy: illegal imprisonment of a forced pregnant woman to influence the ethnic composition of a population or other massive violations of international law.

  • Continuous pursuit and persecution of any group for any political, racial, national, ethnic, cultural, religious, sexual or other reasons related to any of the acts mentioned in this clause, or any criminal offense under the jurisdiction of the court which is throughout the world is recognized as unlawful according to the International Law. Which means severe and intentional deprivation of a group of their fundamental rights due to the identity of that group.  
  • Enforced disappearance of individuals
  • Apartheid

Doing inhuman deeds and creating pressure from one racial group over another group or other racial groups to maintain their regime.

  • Enforcement of other similar inhuman deeds intentionally designed to cause pain or severe damage to body or mental and physical health.
  • A massive or organized attack against any civilian population  

In September 2016, The Hague Prosecutor's Office report on priorities and selection of cases for settlement officially announced that The Hague Court will deal with environmental crime as "crimes against humanity". (ICC; September 2010)

These cases include degradation of the environment, unjust exploitation of natural resources, and the illegal seizure of land along with other issues. (Wiedel and Buccot, September 2016)

War crimes:

The status identifies war crimes in twenty-six forms, some of them are as follows:

  • Willful violation of 12th August 1949 Conventions of Geneva. 
  • Willful killing
  • Torture or inhuman treatment for example: environmental experiments
  • Preparing grounds for willfully causing great mental or physical suffering
  • Taking hostage
  • Willful instructions to conduct attacks against civilians
  • Willful instructions to target civilian objects
  • Willful instructions to attack buildings that are used for religious, learning, artistic, scientific, medical and historic exhibits purposes. 
  • Attacking or bombardment of cities, villages, residential areas or buildings that are not military objects.
  • Killing or injuring a fighter who puts down his arm or surrenders himself,
  • Occupying of lands which belong to other states and transferring parts of civilian population to the occupied areas,
  •  Declaring “There will be no mercy on anyone”,
  • Using poison or chemical weapon,
  • Violating a person’s dignity and humiliating behavior,
  • Forceful or voluntarily mobilizing underage children for national armed forces and/or other war purposes. (Shirawi, Azar 1392)

The notable point about war crimes is that the mentioned regulations apply only on non-international armed conflicts and does not imply on “local conflicts such as revolts and…”

The invasion crime according to the statute means invasion on territorial integrity of a country. Due to disagreement among the countries regarding jurisdiction in addressing such crimes, this crime has suspended in the statute and hence a court is not addressing it. By explaining this, a question arises that how and under what circumstances a court prosecutes such violators? There are three methods:

  1. Every court-member state can attain opinion of prosecutor regarding an “event” in another country. In such a situation, the prosecutor starts primary investigations and at the end, will inform the government/s about the results.
  2. Initiative of the prosecutor: article 15 of this statute anticipates that a prosecutor can “Based on the information gathered about the crimes including jurisdiction, start investigation” based on which the Prosecutor can, by collecting information and further documenting through the states, United Nations and its offices and other local, international and non-government sources, complete his/her investigations.
  3. Another method based on which the prosecutor starts investigation about crimes included in the statute, is applied by the United Nation’s Security Council. In cases where the Security Council, based on chapter number 7 of the UN declaration observes a situation as “Threat against international security and peace”, can ask a prosecutor to investigate about it; for instance, in Darfur case, the Security Council, by issuing declaration number 1,593 of May 31, 2005, asked a prosecutor to investigate crimes conducted in Sudan. In conclusion, arrest warrant of 3 high ranked Sudanese officials, including Omar Al Bashir, President of Sudan was issued. (Euro News; 2012)

Time Jurisdiction:

The Court has no power to address crimes performed prior to applicability of this statute. Based on article 120 of the Statute of International Criminal Court, no condition is acceptable and hence countries cannot, by merely accepting that part of the statute which is not contradicted with law of the statute, join it, but should instead find a solution for such conflicts; the only exception is article 124 based on which each member state can deny court’s ineligibility for investigating committed war crimes in its territory or by its subject for the period of 7 years; in order to solve conflicts of some countries, actions have been taken place for encoding regulations reform related to their constitution, including Germany which added a sentence to the related article regarding prohibition of extradition of its nationals and allowed nationals to extradite to a European Union member country or to an International Criminal Court.

Another problem regarding applicability of statute with constitutions of the countries is failure to predict immunity for heads of states or other authorities. It is mentioned in article 27 of constitution that this statute will apply on everyone without any discrimination, president of a government, members of parliament, elected representative or a government employee. This article of the statute means the International Criminal Court expects member states that in case of need, even by changing the constitution, present people holding immunity based on the internal law to the Court. (Shari at Baqiri, 2008)

The statute of court, effective the first days of the month, after 60th day of the expiration date of the document, is approved, accepted, agreed or inset and applicable by Secretary General. Statute of the Court is applicable from July 1, 2002. For those countries who approve, agree or join this statute after this time, the statute is applicable by the Secretary General from the date of the document submission, approve, accept, agree or join by the government.

Personal Jurisdiction:

Article 11 of the statute states that only a competent court has the authority to investigate individual crimes; hence, the government’s criminal responsibility is not applicable. The intended person must have the following characteristics:

-       It should be a real person not a legal person,

-       The person should be aged 18 at the time of committing a crime. Hence, the under 18 people will be trialed by local court and based on national laws,

-       One of the detailed crimes in articles 5,6,7 or 8 are committed.

Criminal responsibilities of a person are defined in the following situations:

-       When the captive, at the time of committing a crime, suffers a kind of disease or mental disorder,

-       When a person has not committed a crime, but ordered or encouraged committing a crime, is considered a criminal,

-       When a person did/attempted everything for the crime to happen,

-       Official position of the accused person has no effect in jurisdiction, so, no immunity prevents criminal investigation according to the internal or international laws,

-       Military Commanders or a person who works in military headquarter is considered responsible for crimes they commit or the crimes investigated in the court. They are also responsible for the crimes committed in their headquarters, control or authority.

International Criminal Court and Criticisms:

One hundred twenty countries have joined the statute. Of which about 33 countries (nearly 30% of Court Member States) are from African countries. Based on this, more than 60% of countries of this continent are members of this Court. Africa is ahead of other countries. Hence, ICC is facing huge criticism. Majority of critics say that ICC is focused on Africa unjustly. So, face, all the 24-people accused by the court – and only those who are sentenced are Africans, a problem that points critics’ fingers on the Court for being bigot and partisan and on the other hand, this caused reaction by African Union. (Embassy of Iran-Laha)

In March of 2016, the number of member countries reached 124. 31 more countries have signed statute of Rome, but have not yet approved by their Legislative Assembly. Countries like the USA, Russia and China (3 permanent members of the United Nations Security Council), India, the second world’s populated country were critics of this Court and have not joined it. (Ken ting, 2015)

Since the start of Court’s activity till now, Judges of this judicial institution have started investigations on 7 situations occurred only in Africa. The first investigation was from five leaders of “Lord’s Resistance Army” in Uganda, and the last one was investigating conducted crimes in Ivory Coast and accusations of Lauran Bagebo, former president of that Country. (Euronews,2015)

Attempt of the USA and Israel for preventing trial of Israeli military authorities has weakened position of the court. (Keting,2015)

Majority of countries intended to include terrorism and drug smuggling to this list, but no agreement has been made on definition of terrorism and drug smuggling, it was thought that a limited source of this Court will probably be assigned to it. India urged that use of chemical weapons and other mass killing weapons should be a war crime in jurisdiction, an attempt that was not accepted. Later, India expressed concerns about “Statute of Rome states that use of mass killing weapons is not considered war crime” which was an unusual warning to the International community. (Delip Lhiri, July 1198). Some complained that the Rome statute defines crimes more Convex and ambiguous. For example, China said that definition of war crimes in this statute is beyond the definition in common definition of international laws. (Lo Jiangping and Wong Zhexing, July 2005).

 

 


Right of ownership

 

Before entering the main discussion, it is good to have a glance on financial rights. Right is divided based on financial reliability and value to financial and non-financial rights.

Financial Right
 

It is a privilege with economic value.Therefore, it is considered as part of a person’s property. Financial rights are divided into two parts.

Property right

It is a direct authority and domination of a person on a specified property. Such as: right of a certain house ownership.

Liability right

is the authority and privilege of a person against  another person for an action asked by some other person? Liability right is also called personal right.

Superiority of property right on liability right; that the property right has the pursue and priority right. It means that the rightful owner can ask for his\her right as soon as he observes it with another person and is free to utilize it on anyone he wants.

The first and complete property right is considered as the right of ownership. considering article 485 of the Code, the property right is as following:

  1. property right constitutes direct command of the person over the actual gods which is granted by laws.
  2. Main property rights are either principal or derived.

It is obvious from content of the article that objective right is further divided into main property right and subdominant property right. In addition, the article 486 of the mentioned law describes it as “The main property right is the seizure and exploitation rights on a certain thing which is limited to the following rights:

  1. Right of ownership of area and profits of the goods.
  2. The right of ownership of profit of the goods without ownership of the area of the goods.
  3. Easement rights.

On the other hand, “legal terms dictionary” defines main property right as the following: ownership and exploitation right on a certain good which is exclusive to properties’ ownership and profits of a certain thing or ownership right of a property profit without ownership of properties and easement rights.

It is worth mentioning that the article 487 of civil law defines subdominant property rights as the following:

Subdominant property right is regulated rights on property right for guaranteeing liability which is exclusive as the following rights:

  1. Official mortgage right
  2. Possessory mortgage right
  3. Property detention right
  4. Exclusive right
  5. Priority right

Also, the “Legal terms dictionary” defines property right as the following: Regulated rights on property for guaranteeing exclusive liability to official mortgage right, possessory right, property detention right, exclusive and priority rights. Articles 1900 to 2298 of the Civil Code enshrine rulings about definition of property, area of the ownership, common property, house floor, tools for earning property, possessory, etc.

Definition of property:

Property is derived from estate and the word estate means property and anything that is owned by a person, the plural form is properties.

Juristic definition of property:

Property is an exclusive interest between a person and a property where Islamic Sharia specifies it to humans and human can possess her\his property until there is a legal obstacle. Assigning property to human paves the way for him\her the opportunity of profit and seizure of property until there is a legal obstacle which prevents the owner from his property, such as insanity, stultify, minor age and etc. assigning property to the owner prevents others for seizing the property, unless someone seizures it according to the sharia law, such as wills, guardianship and advocacy.

Article 120 of  “Mujalat-ul-Ahkaam” defines property as: “Property is something owned by a person including properties or profits.” Also, Jurists define property as assigning something for someone in a way that others are prevented to own it and the owner can utilize it in case there is no obstacle.

Definition of legal property:

Article 1900 of the Civil Code defines property as: “Property is a right where something comes under domination of a person based on requirements and only the owner can utilize it based on provisions of laws and can have the ownership of it.”

We realize from the above definition that use, exploitation and ownership seizure is defined clearly and the difference between use and exploitation is that whenever the owner uses his\her property for his\her own benefits is called use and if the owner uses his\her own property for others for a fee is called exploitation and if s\he utilizes his\her own property without consent of others it is called seizure.

Property Scope:

whatever includes parts of property is called property scope, hence, the owner of anything is considered as the main and subdominant owner of it. Numerous provisions have described by Civil Code in this regard. According to article 725 of Civil Code subdominant is considered as main.

According to article 727 of Civil Code: “Person who owns an object shall also own anything indispensable to it.” This principle is taken from “Majmu-ul-Haqayeq” book which means owning main property requires owning the subdominants as well. For example, if a person buys a Cow to use its milk, its breast-feeding baby also comes under dominant of the buyer. 

Regarding the property, Article 1901 of the Civil Code states: “Owner of a thing shall be recognized as owner of whatever that is considered as its main elements and cannot be separated from the thing without its destruction or perishing or change thereof.”

The above article explains that the owner of a thing, is the owner of all main elements of that. According to the above article, two criteria are set for main elements; first, destruction of the thing in case of separating it from the original and second, changing the thing in case of separating the branch (secondary matter). For example; door, lock, window and such other things come under main elements of the house and are included in the property because, in case of separating door or window from the house, change occurs and it is resulted in destruction of the lock the house.

Likewise, the owner of a land is also called as the owner of above and beneath of the land.”

1. Scope of ownership of land shall include whatever of depth and height that are customary and permissible.

2. According to agreement or provision of law, ownership of surface of land may be separated from ownership of the above and the beneath of it.

MujalatulAhkaam states: “Anyone, who owns a place, is called as the owner of above or beneath of that place too. It means that the owner can acquire the place as he/she wishes and can build upper and lower floors. The owner can also use his\her property in terms of digging well, building a water tank or digging deep for water.”

The above text explains that a person who owns the surface of a land, is also known as the owner of above and beneath of the land and whatever exists beneath it.

  1. Ownership of above of the Land/Property

The above of the property is also considered to be the property of the owner. Thus, ownership of above of the property authorizes the owner to build on the property, plant a tree and cultivate. The owner can also utilize the light and atmosphere of above of the land. The owner can prevent a stranger from occupying above of the property.

Article 1190 of MujalatulAhkaam states: “A person who builds a new house in his/her yard, does not have the right to take further the bump of the building towards his/her neighbor’s yard. In case that happens, the part of the building bump, that has occupied the atmosphere of neighbor’s yard, shall be destructed.”

Therefore, if a neighbor’s trees are huge and avoid light entering the property of some other person, the owner of the property can request the owner of property next to it or the neighbor to cut some branches of the tree as they block the light and results in harm. Article 1196 of MujalatulAhkaam states: “If a tree branches of someone’s garden continues towards the yard or garden of a neighbor, the neighbor has the right to compel the person to tie or cut branches of the tree in order to make more space. In case the neighbor proves that the shade of the tree does not harm cultivated or agricultural products of the garden, the tree shall not be cut.”

above of the property is not limited property. Article 1092 of the Civil Code has put two conditions for it. The first condition is that the above/superior property is habituated property. Therefore, the person, who is the owner of the surface of land, cannot be considered as the owner of above of the land without the land being habituated. For example; the owner of surface of land cannot possess 200 meters above of the land/property vertically because it is not habituated. The second condition is that the above of the land should be permissible. For instance; according to the Municipality Law, no one can build more than three -story building in a residential area because it is not permitted.

  1. Underground Ownership:

Underground Ownership (beneath of a land) authorizes the owner to dig well on his property, plant trees and cultivate products. Likewise, the owner can prevent a stranger from acquiring the beneath of the property. For example; if a tree roots of the next door land/property (neighbor) have penetrated to the land of another person, in this case, the person can request the judiciary to order the owner of the land to cut roots of the tree.

The ownership of beneath of land is also not absolute and there are two conditions. The first condition is habituated and the second condition is that the beneath of a land as well as things that it includes should be permissible. Thus, the owner cannot possess mines or treasures that are available on the beneath of the land due to the fact that such thing is not permissible in accordance with Afghan laws. Considering the second condition and in accordance with the Constitution of Afghanistan, mines and treasures beneath of a land, are considered property of the government not the property of the owner. Article 9 of the Constitution states: “Mines and other subterranean resources as well as historical relics shall be the property of the state. Protection, management and proper utilization of public properties as well as natural resources shall be regulated by law.” As a result, two laws including Law on Petroleum and Gas as well as Law on Mines were approved and enforced in 1999/2000.

In accordance with the Law on Mines, mines and other subterranean resources shall be the property of the state. Article 4 of Law on Mines states: “All natural mineral substances and artificial reserves of mineral resources on the ground or underground or in the waterways (seas and atmospheres) in the territory of the country are the property of the state.”

Supporting the Property:

Property of natural and legal person shall be respected and safe from violation. Article 40 of the Afghan Constitution states:

“Property shall be safe from violation. No one shall be forbidden from owning property and acquiring it, unless limited by the provisions of law. No one’s property shall be confiscated without the order of the law and decision of an authoritative court. Acquisition of private property shall be legally permitted only for the sake of public interests, and in exchange for prior and just compensation. Search and disclosure of private property shall be carried out in accordance with provisions of the law.”

Thus, property of natural or legal person is safe from violation and natural or legal persons cannot violate, steal or destroy them. The government cannot take away the property of natural or legal persons by force unless approved by the provisions of law for the public interest such as building hospitals, roads, schools and etc.

Sources and References:

Civil Code

Constitution

MujalatulAhkaam

Property Law, Nezamuddin Abdullah

 


Partial ownership

Partial ownership also called as incomplete ownership. It means that a person onlyowns one aspect of the property, either its corpus or usufruct and also own the rightsincluded in a land.

Definition of Incomplete Ownership

Incomplete Ownership refers to Ownership without profits or Profit without Ownership, in other words Incomplete Ownershiphas two conditions:

First: The personhas ownership rights without being the owner of property for example:a person rents or takes loan something from another person or a person willsor devotes benefit of something to another person.

Second: A person is owner of a property without having the right to get profits for example: a person may will benefits of something to another person for a specific time and after death of the testator the willed thingshall be inherited to the executor or person who gives his property ownership for rent to another person, in that case benefit of the property belongs to tenant and the ownership belongs to the owner of the house and ownership of both of them become incomplete.

Types of Incomplete Ownership:

From above definition we get that incomplete ownership includes SoleOwnership or Sole Profit of property that is called Right of Beneficiary as well, therefore, Incomplete Ownership include Sole Ownership, and each one is defined as following:

Sole Ownership:

Sole Ownership is a property that belongs to one personwhile benefit goes to another person for instance a person wills his residential apartment to someone else for a definite or indefinite time.

In this condition if the testator dies and the person who receives legacy, accepts the testament, the ownership rights, the inherited property of testator, and benefits of that property belongs to him/her.

Therefore, the person who receives legacy can get benefit of the property from the time of testament till the end of that and when the duration of benefit ends, the benefit obtained from the legacy should be transferred to the testatorin order to give them full ownership. In this case, the owner of the legacy cannot benefit from the property received by legacy or acquire share from the beneficiary and property.

Therefore, the owner of property is obliged to submit the property to the person who gets benefit, if he or she refuses to submit that, he will be forced to submit.

It’s clear that Sole property rights is permanent and always turns to full ownership. (Full ownership is the authority possession approved by lawyer), but personal profit of the property is temporary because the Hanafi jurisprudence believes profit is not transferred as inheritance.

Profit of Sole Property or Utilization Right:

The second type of incomplete property is utilization right that is also called private utilization of property.

Types of incomplete property:

  1. Utilization Right:

As it’s mentioned that incomplete ownership is utilization rightwhile Civil Code mentioned it as Utilization of Rights. As it’s mentioned in chapter three of Civil Code under the title ofappurtenance from Ownership Rights and Part one of Utilization of Rights predicts in Articles 2299 and 2306.

 

Definition of Utilization Right:

Utilization right is that which is granted to someone else in other person’s property as a result of one of reasons of obtaining property utilization.

As it’s defined in article 2299 of the Civil Code: “Legal profiting is the right of beneficiary for using and utilization of property until it remains in its state even though its area may not be within his ownership.”

From above definition, we get that Legal Profiting is the right of the person who gets profits from a property while the property belongs to another person and to return the property to its owner after utilization date expires. For example: lease or rent that a person who pays rent can utilize the leased or rented property and try to keep the property till the of rent or lease is period is completed and return the property back to the owner or such as:loan, devotion and will etc.

Reasons for obtaining Utilization Right:

Article 2302 of the Civil Code writes about Utilization Right “The utilization right shall be acquired through a legal action or preemption or lapse of time.”

From the enforced articles, we get that the reasons for obtaining utilization right are legal action, property neighborhood, passage of time and will that are shortly explained as bellow:

A – Legal Act

Right to utilization shall be permissible based on Civil Rights. As mentioned in article 2302 of the Civil Rights: “Right to utilization shall be acquired through legal action, preemption or lapse of time.”

By legal act, we mean legal possession and legal possessions shall be concluded in a contract, therefore, right to utilization shall be acquired through some contract for example: lease contract, whereby leaser gets advantage and utilizes the lease and likewise loan whereby loan taker can get advantage of using the loan. Therefore, the utilization right does not include all legal possessions.        

B – Pre-emption

According to article 2302 of the Civil Rights, right to utilization shall also be acquired through pre-emption. For example, if two individuals have same right to utilization and one of them offers his right to the other for sale, the other could acquire the right to utilization through pre-emption.  

C – Laps of Time

The third source for acquiring right to utilization is laps of time and according to article 2302 of Civil Rights, for example: if a person gives his property right to utilization to another person and the mentioned person as stipulated in the right to utilization of Egypt is deemed as owner of that property once five years have passed. 

D – Will

Will is the fourth source for acquiring right to utilization.

2 – Right to Utilization and the Utilizer:

By right to utilization and the utilizer we mean Loan, Lease, Endowment, Will and Permissibility, followings are the definitions:   

A – Loan

The person delivering the object is called lender and the person receiving the object is called borrower and the object itself shall be called loan.  

Some lawyers have defined loan as: Getting advantage of something for free, and others define it as: loan means getting advantage of something without any exchange and for a short period of time.

Article 1456 of Civil Law stipulates loan as: “Lending is pledge of lender to deliver benefit of a property to borrower without exchange for a designated period or specific purpose, provided that he returns it after use.” Examples of loan is abundant in routine life, if someone makes a book available to you to read with the expectation that the book will be returned, this practice shall be called a loan. Or a person lends his car or motorcycle to a friend for getting advantage of it with the expectation that the motorcycle or car will be returned, this practice shall also be called a loan, likewise, lending shovel, pot etc. from neighbor is a loan.   

B – Lease

A contract by which one party conveys land, property, services, etc., to another for some specified time, usually in return for a periodic payment. A person transferring an ownership shall be called lessor and the person who is getting benefit of the ownership shall be called lessee and the ownership itself shall be called leased property and the money generating from leased property shall be called wage.   

Article 405 of MujalatulAhkam stipulates that: “lease literally mean wage and according to jurists it means obvious cost of a property in exchange for an obvious return.”    

However, some scholars have said: lease is a contract whereby a specific profit is gained in exchange for an obvious return. 

Article 1322 of Civil Rights stipulates as follows: “Lease contract shall mean transfer of ownership of the concerned profit of the leased property by lessor to lessee in exchange for a consideration that is replaceable.”

Therefore, we can say that lease is a contract whereby lessor transfers ownership of the concerned profit to the lessee in exchange for a specific return. 

C - Endowment                                                                                                                                               

Endowment means retention and prevention. Also endowment refers to endowed, the plural of which is endowments. A person who endows shall be called endower and the object which is endowed shall be called endowed property and to whom the endowed property is allocated shall be called endowed.

 

Some scholars define Endowment as retaining the exercise of the right of ownership and giving the benefit as charity.

Article 343 of civil law defines Endowment as, “Endowment is retention of property from proprietary possession and devotion of its profits to charitable purposes.”

C- Will

Will is another way of ownership or the right to profit.

D- Ebaha (permissibility)

Ebaha is another way of ownership. It means permitting, legitimizing and accepting as lawful. In Ebaha, the permission might be public such as benefiting from public benefits including passing from roads, using gardens, and playgrounds, entering hospitals or it can be specific such as permission to use a personal property. For example, living in a house.

The difference between property and Ebaha is that property gives the right for its owner to use it in any way that he/she wishes if there aren’t any limitations. In Ebaha, one can only use the property upon the permission of the owner. The permission might be given by the owner such as driving a car or it is given by sharia and law such as passing a road.

References:

Civil Law

Al-Ahkam Magazine

Actual Rights, Nezamuddin Abdullah


The Law on Rights and Privileges of People with Disabilities

 

Gulalai “Sangarkheil Azizi”

 

The Law on Rights and Privileges of Disabled People has been approved in accordance with verdicts of Article 53 of the Afghan Constitution for the purpose of providing people with disabilities with economic, social, political, cultural, educational, entertainment, and sports support so that they be able(including men, women and children) to maintain their rights and privileges through active participation in social events. This law includes four chapters and forty articles. Article 53 of the Constitution states: “The state shall adopt necessary measures to regulate medical services as well as financial aid to survivors of martyrs and missing persons, and to reintegrate people with disabilities and make them have an active participation in society in accordance with provisions of the law.”

 

The base of any social, economic and political activity is existence of law. Policies, strategies as well as rehabilitation and welfare programs are prepared on the basis of this law for handicapped people.

 

Below are the legal tools for securing and enhancing humanitarian rights of the people with disabilities:

  • Law on Rights and Privileges of People with disabilities
  • International Declaration on Human Rights (IDHR)
  • Universal Declaration on Human Rights (UDHR)
  • International Convention on Economic, Social, and Cultural Rights
  • International Convention on Civil and Political Rights
  • Documents of the United Nations and International Labor Organization on Human and people with disabilities’ Rights
  • Declaration on the Rights of Mentally Retarded Persons (1971)
  • Declaration on the Rights of Disabled Persons (1975)
  • World Program of Action concerning Disabled Persons (1982)

Article 3 of the Law on Rights and Privileges of the People with Disabilities states: “The Ministry of Labor, Social Affairs, Martyrs, and Disabled in coordination with relevant institutions facilitates social support efforts to and reintegration of the people with disabilities and handicapped and enables them to have active participation in society in accordance with provisions of the law.”

 

Provision of Financial Aids to People with Disabilities:

Regarding provision of financial aids to the people identified as disabled in accordance with article 7 of the law through relevant institutions, article four of the mentioned law has dedicated following financial aids to be provided from the date of determination of disability only once:

  1. Military officers who become disabled when performing duty or due to the cause of duty are entitled to 10 months’ final salary including benefits.
  2. Brigadiers, sergeants and soldiers who become disabled when performing duty or due to the cause of duty are entitled to 15 months’ final salary including benefits.
  3. Senior government officials (members of the national council, cabinet, members of the supreme court and directors of the independent offices), civil services staffs, members of the provincial and district councils, members of the villages and municipalities who become disabled when performing duty or due to the cause of duty are entitled to 6 months’ final salary including benefits.
  4. People who have no fixed salary or no salary, other than people specified in this article, and have been disabled are entitled to 5 months of grade 8 step 1 salary including benefits in accordance with Civil Servants Act.

Regarding retirement or disability rights of the people with disabilities on monthly basis, article 8 of the mentioned law states:

  1. People who are listed in article four of this law and are identified with full disability are entitled to monthly retirement or disability rights from the date of determination of disability as per following terms and conditions:
  • People listed in paragraphs 1 and 2 of the mentioned article are entitled to 100 percent of the final monthly salary including benefits regardless of the duration of service.
  • People listed in paragraph 3 of the mentioned article are entitled to 100 percent of the final monthly salary including benefits or retirement, whichever is more.
  • People listed in paragraph 4 of the mentioned article are entitled to 100 percent of grade 8 step 1 salary in accordance with Civil Servants Act.

(2) Percentage established by the Health Insurance Commission for Partially Disabled Persons are as appropriate, entitled to half of the salary as defined in paragraph (1) of this Article.

Indiscrimination:

The Constitution prohibits discrimination against the citizens of Afghanistan. Afghan citizen’s women and men are equal in terms of rights and freedoms and like other citizens, persons with disabilities are also entitled to all fundamental human rights and freedoms, in line with the rights of citizens enshrined in the Constitution. As stated in the Law on Rights and Privileges of Disabled, "The disabled have the right to take part in social, economic, political, cultural, educational, recreational, sports, artistic and non-discriminatory fields.”

Higher Education:

  1. Article 19: this article talks about higher education and further explains: The Ministry of Education and Ministry of Higher Education paves the way for inclusive and exclusive education to disabled people.
  2. The government allocates 7 percent of the scholarships to eligible disabled people from the total share of scholarships to abroad payable by the government and donor organizations. MoLSAMD, Ministry of Education and Ministry of Higher Education facilitate free admission and cover the total cost of higher education for 7 percent of the eligible disabled people as new students in private higher education institutes.
  3. Private higher education institutes provide relevant services to disabled people 25 percent lower than others.

Professional and Technical Trainings:

The culture of sign language and usage of Braille is developed and promoted amongst them in order to increase knowledge level of disabled people.

There is a plan to provide professional and vocational training and educational opportunities for disabled people regardless of their talent and abilities.

Regarding provision of professional and technical trainings to disabled people, article 20 of the mentioned law states: “MoLSAMD in cooperation with relevant institutions provides professional and training opportunities for the disabled people considering their talent and abilities.”

Health/Medical Services:

The government will take necessary measures to facilitate disabled people’s access to all types of health, medical, treatment, integration, physical, and mental services.

Regarding free treatment of all citizens, article 21 of the mentioned law states: “the government provides free treatment tools and medical services to all citizens in accordance with provisions of the law.

The government encourages and supports establishment and expansion of medical services and private health care centers in line with the law.

The government takes necessary measures to strengthen healthy physical education and develop national and regional sports.”

Moreover, the Law on Rights and Privileges of Disabled People states: “the Ministry of Health takes necessary measures to facilitate disabled people’s access to all types of medical, health, treatment, integration, and physical and mental services.

  1.  After confirmation by Medical Commission of the Ministry of Health, in case treatment of a disabled person is not possible inside the country, the government will take responsibility for sending him/her abroad for treatment on government expense.”

Right to Work:

Based on provisions of article 55 of the Constitution, all Afghan citizens having legal capacity will be accepted to serve the government without any type of discrimination and in accordance with provisions of the law.

The right to work is ensured for eligible people with a disability

Ministries and other government institutions shall hire at least 3 percent of their employees from among the people with disabilities. 60 percent of operator positions to blinds, people with low visibility and physically challenged.  At least 50% of positions like typing, posting, and correspondence in all government departments shall be allocated to physically challenged and deaf.

Provisions of articles 48 and 49 of the Constitution about the right of work and lack of forced work:

“Work is the right of every Afghan. Working hours, paid holidays, work right, employment and employee rights and related matters shall be regulated by the law. Choice of occupation and craft shall be free within the bounds of law. Forced labor shall be forbidden. Active participation in situations such as; war,disaster and others that threaten public life and comfort shall be among the national duties of every Afghan. Forced labor on children shall not be allowed. 

Also. law on the rights and privileges of people with disabilities says “Government should consider people with disabilities as employees of the ministries and other government offices at a rate of at least 3 percent based on their own requests.”

Establishing rehabilitation centers:

Comprehensive education system will be created for the people with disabilities, so that they can have access to basic education, higher education, sophisticated technology, and professional and technical courses. Ministry of higher education is compelled to develop rehabilitative education in order that people with disabilities can have access to education and sophisticated technology.

Private educational institutions are required to provide their services to people with disabilities at a lower cost.

Article 23rd about rehabilitation centers describes:

1.Ministry of Labor, Social Affairs, Martyrs & Disabled in coordination with the Ministry of Public Health, Ministry of Urban Development, Municipalities, and National Olympic Committee should establish and equip rehabilitation centers for the people with disabilities both in the capital and provinces according to their budgets.

2.In order to achieve the goals, set forth in paragraph 1 of this article, governors and other departments cooperate with relevant authorities.

The right to have shelter:

To have shelter is the right of every Afghan. Article 39 of the Constitution states: “Every Afghan shall have the right to travel and settle in any part of the country”.  Considering this right, the following privileges are considered for people with disabilities.

Article 24 of the Law on Rights and Privileges of people with disabilities states:

1“While distributing lands in the capital and provinces, municipality shall allocate 7 percent of plots for people with disabilities.”

2“While distributing residential apartments, Ministry of Urban Development and other related departments should allocate 7 percent of the apartments for and should charge only   30 percent of the actual price in case a person with disability buys one. 

 

If a person with disability cannot afford to pay the total price of the land at the time of purchase, he/she can pay on installments in 10 years to the Ministry of Urban Development with agreement of both parties. In this duration, the person with disability cannot sell or transfer the land to other people.

3.In order to accommodate people with disabilities, Ministries of Labor, Social Affairs, Martyrs & Disabled, Urban Development, and municipalities shall enter into agreements with private companies and institutes.

4.Those homeless people with disabilities who are jobless and have the same situation like other employees will be prioritized to receive plot lands and residential apartments.

5.people with disabilities can only benefit once from the privileges provided in this article. 

Buildings Design, Transport and Technology:

To provide people with disabilities with facilities including residential apartments, transportation, and technologies, the government shall consider:

Article twenty-fifth of the mentioned law stating: “Ministries, government institutions and other related departments are required to provide facilities to people with disabilities while designing apartments, recreational areas, stadiums, pedestrians, transport and technologies”

Disability record:

Central Statistics Office authorities are responsible to record all people with disabilities mentioning their type(s) of disability(ies) and report to related references. Article 26of the mentioned law says “Central Statistics Office shall record people with disabilities with their types of disabilities while recording and reporting to Ministry of Labor, Social Affairs, Martyrs & Disabled through letters”

Marketing

Article 27 of the mentioned law says: “Ministry of Commerce and Industry will consider necessary measures for marketing of produced commodities by people with disabilities”

Providing working conditions for people with disabilities:

Article 117 of labor law says:

  1. “The Administration shall be obliged to provide jobs for employees who have become disable due to performing their jobs, after their disability has been proved.
  2.  Wages and other the work-related rights of employees shall not be less than the wages that they have earned in their last post, rank or grade prior to disability.

Rights of Children with Disabilities:

A child with disabilities has equal rights to enjoy basic rights and freedoms same like other children. The right to express opinion, show interest and participate in children’s affairs are at the heart of attention and necessary facilities for the exercise of these rights are provided to them.

 

Necessary measures will be taken to prevent every kind of exploitation, violence and misbehavior with Children with Disabilities.

No one can deprive a child from family membership for having a disability. The offender will be prosecuted.

Article 16 of the Law on Rights and Privileges of Children with Disabilities says:

  1. Children with Disabilities have the same rights and freedoms as other children.
  2. Ministries and related governmental institutions shall provide and equip recreational and sport facilities and exclusive and accessible places for Children with Disabilities.

 

Birth Defect:

“congenitally disabled will enjoy all rights and privileges except those mentioned in article 4 and 8.”

Reporting birth defect:

Article 18 of the Law on Rights and Privileges of Children with Disabilities says: “Ministry of Public Health and other private health service providers shall report birth of children with disabilities to the Ministry of Labor, Social Affairs, Martyrs & Disabled.”

Exemption from military service:

Article 55 of the Constitution says that Military Service is obligatory on all Afghan citizens and explains:“Defending the country shall be the duty of all Afghan citizens. Conditions for compulsory military service shall be regulated by law”.

It is while the Law on the rights and privileges of people with disabilities gives this privilege to breadwinner of a person with disability to be exempted from military services and says: “The person who is breadwinner for a person with disability is exempted from military services”

Obtaining driving license:

Article 29 of the Law on Rights and Privileges of people with disabilities says: “Partially disabled can obtain driving license after obtaining good marks in driving test and receives certificate from driving course of the Traffic Department in accordance with relevant legal documents.”

Disability Card:

Ministry of Labor, Social Affairs, Martyrs & Disabled issues Disability Rights Card to people with disabilities.

Rejecting job offer:

Article 30 of the mentioned law describes:

  1. “Whenever a disabled person rejects a job offer without providing reasonable excuse, he or she will be deprived of rights and privileges of this law.”

(2) If a person with partial disability is re-hired, he/she cannot benefit the listed remunerations in article 8 of this law. 

Transportation:

Article 31 of this law clarifies transportation facilities for people with disabilities: “Ministry of Transport and Civil Aviation in coordination with other governmental and private transport companies take into consideration necessary measures to observe discounts in fares of air and land trips for people with disabilities.”

Haj and pilgrimage:

Article 33 of the mentioned law clarifies Haj services as following:

  1.  “The government is obliged to dedicate 5% of Pilgrims’ share officially introduced by Islamic Countries/Organizations for fulfilling Haj ceremony to eligible people with disabilities.
  2. people with disabilities who are financially able to attend Haj will be given priority.”  

Aid payment Source:

“Financial aid listed in article 4 of this law for military officials, government, joint venture, and private sector employees, non-ranked or graded people and people who are not paid fixed salaries will be paid by the commission or board assigned by the President considering their recent work place and service.”

Retirement remuneration payment Source:

Article 36 of the Law on people with disabilitiesRights and Privileges states: “retirement rights and other privileges for people with disabilitieswill be paid by Ministry of Labor, Social Affairs, Martyrs and Disabled both in the capital and provinces.”  

Public awareness on disability:

In order to enhance public awareness regarding people with disabilities, relevant departments will take necessary measures.

Local and national Radios and TVs provide and broadcast proprietary programs about people with disabilities every week.

Article 37 of the law on people with disabilities rights and privileges states: “Ministry of Information and Culture and other relevant government and non-government administrations shall take necessary measures to enhance public awareness on disability and remunerations of people with disabilities.”

Salary increment:

Article 38 of the mentioned law states: “Salaries of people with disabilities will be increased as soon as other public salaries are increased.”

Death of disabled: 

 (1) If a person with disability dies with an official work background, his salary will be paid to his family without reduction in his salary range.

(2) Family of the dead person, in this law’s concept are:

1. Spouse, unmarried daughter, son whose age is under 18 and is disabled or busy in education or serving in military.

2. Father, mother, unmarried sister, brother whose age is under 18 and is disabled or busy in education or serving in military, provided that the disabled was sponsor of their livelihoods before dead.

3. Child who is born after his death from his pregnant wife.

(3) Identification of the disabled’s family will be done through legal deed.

Rights and privileges of people with disabilities who are not registered:

According to article ten, those Mujahidden and people who became disabled after April 27, 1978 and their disabilities were not identified by authorized sources at that time and/or have not received disability cards are eligible for rights and privileges of disability from the enforcement date of this law and their disability conditions and rights and privileges payments will be organized based on a separate procedure by Ministry of Finance and Ministry of Labor, Social Affairs, Martyrs and Disabled.

Salary ban:

According to article 11 (1) of the law on rights and privileges of people with disabilities, salary of a person with disability will be stopped in the following situations:

  1. Permanent abandonment of the country
  2. Quitting citizenship
  3. Condemnation with the charge of committing a crime meant to be national treason based on issuance of a final decree of an authorized court
  4. In case article 31 of this law is realized,
  5. Unavailability of family member(s) after his/her death
  6. Recovery
  7. Other listed situations in legislative documents

 (2). If a disabled die without having a rank or step, his monthly salary will be cut and his one-year salary will be paid to his family all at once.

Remuneration cessation to be paid to families of the people with disabilities:

Article 12 (1) remuneration to family of a deceased disabled will be cut in the following situations:

 

  1. Death
  2. Permanent abandonment of the country
  3. Quitting citizenship
  4. Condemnation with the charge of committing a crime meant to be national treason based on issuance of a final decree of an authorized court
  5. Son or brother who completes his age of 18 or is recovered from disability and/or completes education or military service
  6. Marriage of spouse, daughter or sister of the deceased disabled
  1. The cut share based on provision of paragraph (1) of this article will not be added to share of remaining family members

Division of retirement remuneration among family:

 (1) Retirement remunerations of the Deceased Person with Disability will be divided equally and without reduction among his family members

(2) A family eligible for receiving salaries of more than one person with disability will receive all remunerations.

Retirement remuneration:

According to article 14, a person who loses his/her working ability is eligible for receiving his/her retirement remuneration from the date of disability identification in line with listed provisions of paragraph (1) article 8 of this law.

Settlement procedure:

Article 39 of the law on rights and privileges of people with disabilities clarifies the settlement procedure as following:

“Ministry of Labor, Social Affairs, Martyrs and Disabled can impose separate procedures for better implementation of provisions of this law.”

The aforementioned law clarifying rights of the people with disabilities has additionally enshrined a number of privileges for them so that to enable them actively participate in various aspects of their personal life and also, to cover their requirements and participation in the development of their country.

Sources and references:

The Constitution

The law on rights and privileges of the people with disabilities

Labor law


Terms and Conditions of Citizenship

It is worth mentioning that before 1315, there were not anydrafted and organized lawsin regards citizenship and its regulations.Holding Tazkera was the only criteria to differentiate between local nationals and foreign nationals.  

Drafting the citizenship charter in accordance with basic principles designed in 1310 was the first attempt to make this happen in 1315. This charter contained 23 citizenship principles and was drafted by the king of the time. This charter followed both legal and adventitious (blood and soil) systems.    

Nationality is somewhat thatgiven a child the law at the time of her/his birth, possibly by both (blood and soil) ways.

Nationality through blood, given to a child by his/her descent, because the child after birth gets his\her parents’ nationality. The blood principle for nationality does not refer to the place where the child is born, but rather get his/her parents’ nationality.

Nationality through soil, some people are automatically citizens of the state in which they have been born means wherever the person is born, s\he takes the citizenship of that specific country.Nowadays, most countries operate on the soil system.

Codification of the citizenship charter in 1315 was one of the practical steps to differentiate local nationals from foreign nationals. This was an important issue in the history of the country in regards to citizenship, and the citizenship law emerged as modified code. 

once the citizenship charter enacted on May 5, 1986 composed of 46 articles and approved by the government of the time (Khalq Democratic Party of Afghanistan) and was applied and by applying this citizenship law, the citizenship law of 1315 was cancelled. 

In this citizenship law, the soil system has also been mentioned as a subsidiary and relayed mostly on blood system.

As article nine of this law stipulates about legal system of getting citizenship,“A person who is born in the territory of the Democratic Republic of Afghanistan or is given birthby Afghan Nationals outside the country is a national of the Republic of Afghanistan.”

It is worth mentioning that a perfect law by the Parliament of the time, containing five principles and 42 articles,was also approved on March 20, 1992.It included issues such as: obtaining citizenship, leaving citizenship, double citizenship, etc.

In case of dual citizenship, we must note that dual or double citizenship occurs when a person is affiliated to more than one country at one time.That is a person who holds citizenship of two or even multiple countries.

The law which was approved in 1992the same as the law approved in 1987 mostly relied on blood system. Whereas, in article nine, second chapter, stipulates in regard obtaining citizenship,“A person who is born in the territory of the Democratic Republic of Afghanistan or from Afghan Nationals outside the country is a national of the Republic of Afghanistan.”

After failure of the Mujahedeen’sGovernment in 1996 and establishment of the Taliban regime, a series of changes were brought to the Citizenship Law of 1370, which was established before the government of mujahidin. This law is currentlybeing applied.

Conditions of citizenship:

If a citizenship is realized as a political, legal, and spiritual relationship with government, and considered it as liaison contract of an individual with the government, bothways requiretwoconditions for citizenship realization. 

First – Existence of Government

It means that legal person is realized as a formal representative of collection of the real people in General International Law. In fact, the states that govern on lands where have residents and proclaim existence and other countries recognize them in case that the proclaimer country is composed of the government constituent elements.

In countries of several autonomous states, the nationality of individuals of the autonomous states is governed by the Central Government which regulates foreign relations of the autonomous states, and it is composed of a number of federal states. 

A government that is supported by international entities is recognized as a political unit and has finally emerged as a result of a contract named “Protectorate Contract” and the donor country carries out some of its affairs, the citizenship could not be established in the territory of the donor country. Even if the donor country is obliged to exceed abroad political support affords.

It’s worth mentioning that a question may raise in regards citizenship within governments under protection that whether the citizenship status, will support the government or not? The Private International Law Experts believe,“Foreign relations of the protected states are carried out through a supportive state, and the protected states are deficient in their independence, protected states is internationally known as a political entity and ultimately, under a contract called "subcontracting agreement", a tributary government is torn from its own, but the relationship of nationality cannot be placed on the territory of a supportive state, although the supporter state is qualified to afford political support outside the territory.    

Second – Existence of Citizen

It is the existence of the nation that guarantee the sovereignty of a country and the concept of nationality emerges. If we consider the relationship between the state and the individual as a political relation, only the state determines people’s citizenship.The geographical, political, economic and cultural conditions, collective hopes, and activities are considered in this assessment. 

Rights Deriving from Citizenship:

Citizenship follows some consequences and these results are more pronounced in the field of General International Law, Public International Law and Public Law.

In the context of General International Law, what relates to citizens is the beneficiary of political support from the government, and in this case it is only a citizen who can use the rules that governments have made based on agreements for the benefit of the citizens.

According to Private International Law, Local nationals can obey the rules of thePrivate International Law of their countries in matters relating to personality, talent, and in personal status anywhere in the world, comply with their own laws and their documents shall be recognized authentic. Consular agents have the responsibility to set up documents for their own nationals abroad.

In case of Public Domestic Law, it can be said that, “It is only citizens of a country who can enjoy political rights and participate in elections, and could undertake political status of the country including the presidency, membership of the parliament and other high-level government agencies at home and abroad. 

General Principles Governing Citizenship:

There are three general principles of citizenship that are consensus among law scholars. All countries adopt it as grounds for citizenship and codify their own laws based on these three principles.

Principle 1 - Each person must have a nationality,

Principle 2 - No person shall have more than one nationality.

Principle 3 - Citizenship is an eternal and unchangeable relationship.

According to the aforementioned texts, it can be said that citizenship is a political and spiritual relationship that a citizen has with his or her government.According to Public International Law and Private International Law, citizens can use the rules and regulations developed between the states. Citizenship is realized in two ways, one through the soil system and the other through the blood system that is imposed on the person.

Sources and reference:

Citizenship law

Private International Law, Pohandoy Wali Mohammad Naseh