The Crime and Policing Act 2026

The Act introduces new offences, including constraints on wearing face coverings in designated ‘mask-free zones’ at protests (ss 157, 158, and 159) and offences relating to climbing on certain memorials and monuments (s 161, Schedule 17). The Act also creates offences concerning protests outside or in the vicinity of the private residence of a public office-holder (s 162).

The Act widens the circumstances in which the police may restrict protests under the Public Order Act 1986 by introducing “relevant cumulative disruption” as a consideration (s 165) and whether the protest would create an intimidating atmosphere around places of worship (s 164). Such provisions raise concerns over the availability of such wide-reaching discretionary measures to control protest.

In particular, the consideration of “cumulative disruption” raises interesting ideological questions surrounding the nature of protest. The new legislation defines “relevant cumulative disruption” as encompassing disruption to “the life of the community” resulting from the procession in question and any other procession or public assembly that is held, or intended to be held, in the same area. Critically, this applies regardless of whether or not the protests are organised by the same person, attended by any of the same people, or are held or intended to be held at the same time. The concept of restricting protests based on “cumulative disruption” overlooks one of the fundamental facets of successful protest movements, which by design often require cumulative or repeated action to achieve results. Sustained protest has historically been an effective means of catalysing government action, and a measure that constrains this aspect arguably undermines what lies at the very core of successful protests.

The Right to Protest

Protesting is an effective tool for people to hold those in power accountable, and restrictions on it demand scrutiny as to their compatibility with Articles 10 and 11. These Articles provide important protections through the rights of freedom of expression and peaceful assembly, respectively. They are fundamental rights in a democratic society, but are not absolute, meaning they can be subject to restrictions in accordance with certain conditions. For instance, an interference with the right to freedom of peaceful assembly will constitute a breach of Article 11 unless it is “prescribed by law”, pursues a legitimate aim under Article 11(2), and is “necessary in a democratic society” to achieve those aims. The latter question revolves around proportionality.

Whilst some measures in the Act may be justifiable, such as restrictions on face-coverings by reference to general public safety or crime prevention aims, other measures introduced merit further scrutiny in this regard.

A Pattern of Restriction

The Act must not be considered in isolation. It fits within a broader wave of UK legislation governing protest. The Police, Crime, Sentencing and Courts Act 2022 and the Public Order Act 2023 introduced significant additional measures and expanded police powers in relation to protest governance.  For example, sections 73 to 74 of the former amended sections 12 to 14 of the Public Order Act 1986, widening the circumstances in which police may impose conditions on public processions and assemblies. Conditions may now be imposed on the basis of noise, where an “reasonably believes” it may result in “serious disruption to the activities of an organisation in the vicinity”. The Public Order Act 2023 went further, introducing protest-specific offences such as ‘locking-on’ (s 1). This criminalises a protest tactic of attaching oneself to another person, object, or land, where this causes, or is capable of causing, serious disruption. The 2023 Act also expands police powers to include powers to stop and search without suspicion in specified areas (s 11). The Crime and Policing Act 2026 has continued this trajectory of introducing further restrictions on protest.

Recent events have caught national and international attention, further illustrating the difficulties surrounding the right to protest. For example, the proscription of Palestine Action as a terrorist organisation in July 2025 gave rise to a legal challenge, with the Court of Appeal overturning the High Court’s decision and concluding that the proscription was lawful and proportionate. The widespread arrest (see Secretary of State for the Home Department v R (Ammori), [148]) of individuals in connection with the initial decision around proscription demonstrates the real-life consequences that legal classifications have for the exercise of protest rights by individuals. Such headlines have spurred fresh discussions about the extent to which protest activity may be curtailed by the State.

Overall, these developments raise questions about the direction of UK government policy in this area and the dangers of the aggregate effects of such restrictions. Taken in isolation, the Crime and Policing Act 2026 may be capable of justification in relation to qualifying fundamental rights. However, when situated alongside the expanding body of criminal offences, police powers, and other restrictions, the Act contributes to a worrying landscape of increasing encroachment upon the fundamental democratic right to protest.  

A man’s promise of marriage holds significant strength in the Indian socio-cultural context, since sexual intimacy outside of marriage is shamed at best and punished (by families/communities) at worst. A woman’s consent to sexual relations, therefore, may be significantly rooted in the prospect of marriage.

The criminalisation of a false ‘promise-to-marry’ is a legal acknowledgement of this cultural reality. The principle was originally developed by Courts through precedents, and eventually came to be enacted into s 69 of the BNS. However, recent judicial interpretations of the offence seem to lose sight of why such acts need to be categorised as rape.

In May 2026, SCI in Shaileshbhai Govindbhai Makwana v The State Of Maharashtra quashed criminal proceedings in a ‘promise-to-marry’ case instituted by a woman against a man who had promised to marry her, secured sexual relations, and later retracted the proposal to marry. The complainant woman was in the midst of her divorce case when she met the accused on a matrimonial website. She grew intimate (emotionally and sexually) with the accused and continued in a relationship for a few years. Once her divorce came through, the man refused to marry her even though he had promised to do so earlier in their relationship. The aggrieved woman then filed a case of false promise-to-marry.

When the accused approached the Court to quash the case against him, facts that the woman had created an account on the matrimonial website while her divorce case hadn’t yet concluded, and had become intimate with the accused before marrying him, went in favour of the accused. The Court reasoned that a ‘deceptive’ sexual relationship was not apparent, and rather that the case was instituted once the relationship ‘soured’, implying that it was a revenge plot for a scorned woman. The Court neglected to mention that divorce cases often take a long time to conclude, and a legitimate prospect of a new partner and marriage may arise in the meantime.

Similarly, in the earlier case of Yashwinder Kumar vs The State Govt of NCT of Delhi in February 2026, the SCI expressed its concern about women entering into sexual relationships prior to marriage. This oral remark came during the hearing of a bail application filed by the accused in a ‘promise-to-marry’ rape case. The complainant woman also met the accused man on a matrimonial website and entered into sexual relations under a promise of marriage. Later, however, she came to realise that he married another woman in 2024. The SCI granted him bail and took the opportunity to express its disdain for pre-marital sexual relations, with the Judge saying that they may be ‘old-fashioned’ but are unable to appreciate pre-marital sexual relations. While the Court’s comment would have no bearing on the merits of the case itself, the stance of the apex Court is alarming.

These cases indicate a misunderstanding of why ‘promise-to-marry’ rape cases are criminalised. Courts seem to perceive that the offence is intended to protect the pre-marital sexual sanctity (or at least marital sexual exclusivity) of women towards their intended husbands, such that if a man promises to marry her and later retracts, the consequential ‘loss’ of her sexual purity/exclusivity is addressed by the offence. Rather, Courts must realise that such acts are offences due to obtaining consent by deception, thus vitiating the woman’s sexual autonomy: the foundations on which she consented were false, and the man who deliberately misled her needs to be accountable under criminal law.

Such an approach, centred on women’s sexual autonomy, would ensure that the provision is used to protect women’s sexual agency while dispelling stereotypes of sex and marriage. The offence is not intended to ensure that marriage necessarily follows sex, but rather to ensure that cultural vulnerabilities are not weaponised by men to deceive women into sex.

“Innovator”: A Label That Can Be Applied to Anyone

Article 2, paragraph 8 of the Penal Code of the Islamic Emirate introduces the concept of “innovator” (mubtadi‘) as one of the key terms. In some analyses, this term has been portrayed as a tool for excluding sects such as the Shia or the Ismailis. However, in the Hanafi jurisprudential tradition, the concept of bidah (innovation) does not necessarily imply from Islam or belonging to a separate sect; rather, it often refers to doctrinal or practical innovations within a religious tradition itself. For this reason, in some official statements by Taliban spokespersons, it has been suggested that the term is primarily aimed at Salafi or Wahhabi movements, rather than other Islamic sects.

Nevertheless, legal analysis cannot rely solely on the declared intent of the drafters; it must instead focus on the interpretive capacity of the legal text. The absence of a precise definition of bidah in the Penal Code of the Islamic Emirate creates the possibility for this concept to be interpreted expansively in practice. Under such conditions, the label “innovator” can become a flexible tag whose scope extends far beyond the lawmaker’s original intent.

Historical experience shows that the concept of bidah has always been contested and open to interpretation. Because there is often no clear boundary between “tradition” and “innovation,” its identification typically depends on the theological or jurisprudential perspective of the interpreting authority. As a result, when such a concept is incorporated into a legal text without a precise definition, there is a risk that the label “innovator” may be used as a tool for excluding or marginalising different groups.

From a legal perspective, the central issue is not merely the intention of the legislator, but the structure of the legal text and the breadth of its interpretive scope. Even if the original aim of the drafters was limited to addressing certain intra-Sunni movements, the lack of a clear definition of bidah leaves open the possibility that, in practice, the concept could be applied against a much broader range of religious or intellectual groups. For this reason, the historical use of accusations of bidah in religious conflicts serves as a cautionary lesson: a concept that has repeatedly been used for doctrinal boundary making, when introduced into law without a clear definition, can become a tool for expansive interpretation and discriminatory application within a legal system.

Which Class Do You Belong To? Punishment Based on Social Status

One of the notable aspects of the Penal Code of the Islamic Emirate is the way crimes and punishments are classified. In modern legal systems, offences are typically categorised based on the severity of punishment, such as felonies, misdemeanours, and infractions. However, such a classification is not found in the Penal Code of the Islamic Emirate. Instead, Article 9 reflects a form of classification based on the offender rather than the nature or gravity of the crime.

In the footnotes, classical jurisprudential sources are explicitly cited, including Al-Fatawa al-Hindiyya (compiled during the reign of Aurangzeb in 1667) and Radd al-Muhtar by Ibn Abidin (19th century). These references suggest that the drafters sought to base the regulation of criminal life in a society of roughly 40 million people in 2026 on legal opinions formulated 300 to 400 years ago, within a social context in which hierarchical structures, such as the Hindu caste system, played a significant role.

The reference to Al-Fatawa al-Hindiyya indicates that the model for structuring punishments emerged within a specific historical context where social stratification and distinctions were deeply embedded. Transposing such models into contemporary Afghan society, without rethinking modern concepts of justice, equality, and citizenship, may lead to the reproduction of structural inequality within the criminal justice system. The issue here is not merely a single provision, but rather a legislative method that imposes the past onto the present without critical adaptation.

What brings the Penal Code of the Islamic Emirate closer to a caste-like system is not superficial similarity, but a shared theoretical and structural foundation: in both systems, an individual’s social status serves as a basis for determining their rights and punishments.

Moreover, terms such as “scholar,” “elite,” “merchant,” or “common people” appear in the text, yet no clear or codified criteria are provided for identifying these categories. This ambiguity may give law enforcement authorities broad discretion, opening the door to subjective interpretation and potentially discriminatory application.

Dancing Is Forbidden, But What Is “Dancing”?

Conceptual ambiguity in certain provisions of the Penal Code of the Islamic Emirate is such that it can lead to an unchecked expansion of judicial discretion. For example, Article 59, which criminalises dancing, illustrates a case of vague criminalisation. In this provision, not only dancers but also organisers and even spectators are considered offenders, yet no clear definition of what constitutes “dancing” is provided. In a multicultural society like Afghanistan, such ambiguity can result in restrictions on the cultural rights of different ethnic groups.

Similarly, in relation to “immoral and sinful gatherings”, Article 40 provides that any individual present at such a gathering, even without criminal intent or active participation, may be treated as an accomplice. Such a rule conflicts with the principle of individual criminal responsibility and the presumption of innocence.

Silence Is a Crime: A Society with Ever-Watchful Eyes

Article 24 of the Penal Code of the Islamic Emirate stipulates that if a person is aware of consultative meetings or subversive actions by opponents of the regime and fails to report them or take action against them, they shall be subject to tazir punishment.

In practice, this provision treats silence as a crime and creates a kind of general duty to report. Such an approach can have wide-ranging social consequences, including the spread of distrust and the weakening of social bonds.

Rights Lost in the Law

One of the most significant shortcomings of the Penal Code of the Islamic Emirate is the absence of key guarantees of fair trial. In this document:

• The right to remain silent is not recognised.
• The right to access a lawyer is not provided.
• The concept of a “suspect” does not exist within the criminal process.

As a result, within this system, an individual is effectively classified either as an “accused” (under Article 2, paragraph 12) or as a “criminal” (under Article 2, paragraph 13). Moreover, in some cases, the attribution of an offence may be based solely on the testimony of a single “just” (‘adil) individual, even though the criteria for determining such “justice” are not defined.

Every Muslim a Judge: The Court in the Street

In some provisions of the Penal Code of the Islamic Emirate, the enforcement of punishments is envisioned in a decentralised manner. For example:

• The execution of tazir punishments by ordinary Muslims
• Direct action against opponents under Article 24
• The authority of a husband to discipline (Article 32)

Such provisions can lead to the fragmentation of penal authority and weaken the state’s exclusive control over the use of coercive force. Under these conditions, the boundary between formal justice and private violence gradually becomes blurred.

What the Law Does Not Say

Critiquing a law is not limited to examining what is written in the text; it must also consider what has been omitted. In the Penal Code of the Islamic Emirate, there is no reference to many contemporary crimes, including:

• Cybercrime
• Money laundering
• Tax offenses
• Environmental crimes
• Violations of intellectual property
• Crimes against humanity

These silences suggest that the primary focus of the Code is more on social and normative control than on addressing complex economic and organised crimes.

Conclusion

And now we return to the initial question: was 5 January 2026 the end of a dream, or the beginning of a nightmare? The dream of a people who have endured more than four decades of war is nothing more than to live in a country where laws are written based on equality, where rich and poor, scholar and layperson, women and men are equal before the law. The dream of Afghanistan was a society in which silence is not a crime and “discipline” is not a pretext for violence.

The Penal Code of the Islamic Emirate, however, paint a different picture: fatwas from 400 years ago as the law governing the lives of 35 million people; social classification at the heart of justice; elastic concepts like bidah in the service of power; and a line between discipline and torture that is only millimetres apart.

Is this the end of a dream? Perhaps. The end of the dream of a law that protects citizens from power. The end of the dream of equality before the law.

Or perhaps it is the beginning of a nightmare. A nightmare in which anyone, in the name of “enjoining good,” can impose punishment. A nightmare in which silence is a crime and neighbours must watch one another. A nightmare in which crimes such as torture, money laundering, and crimes against humanity are absent from the legal framework, because the priority is not justice, but control.

Now, the judgment is yours: the end of a dream, or the beginning of a nightmare?

15 Jadi 1404 (January 5, 2026) may be remembered as a turning point in the development of Afghanistan’s criminal law under Taliban rule, but one that raises serious concerns about fairness, clarity, and the direction of legal reform. The publication of the 58-page document titled “دمحاکمو جزایی اصولنامی” does not simply signal legal development; rather, it suggests a system that appears vague in parts, heavily restrictive and deeply rooted in pre- modern legal thought. Issued with the signature of the Taliban leader, it consists of an introduction, three sections, ten chapters, and 119 articles. Its structure is organised as follows: the first section is devoted to Tazeer (Punishments set according to an authority’s discretion), the second to hudud (fixed punishments prescribed under Sharia) and Qisas (retaliation in kind), and the third to Diyat (Blood money in Islam).

One of the notable features of this document is the explicit reference in the footnotes of its articles to classical jurisprudential sources, including Al-Fatawa al-Hindiyya, compiled during the reign of Aurangzeb in the 17th century, and Radd al-Muhtar ‘ala al-Durr al-Mukhtar by Ibn Abidin from the 19th century. The inclusion of these sources indicates that the drafters sought to adopt the Hanafi jurisprudential tradition as the primary basis for legislation. However, this very approach raises a fundamental question: are we witnessing the development of a modern legal system, or the direct transplantation of centuries-old fatwas (religious rulings or answers given by an Islamic scholar) into the form of statutory law for a contemporary society?

This question becomes even more significant when we consider that the document in question was drafted in an environment lacking an elected legislative body. Therefore, a proper legal analysis requires clarification of the institutional channel through which this document was issued: was it promulgated by decree of the Taliban leader, or was it approved within the framework of a leadership council? Using the term “adoption” or “enactment” for such a text without specifying its issuing authority may lead to conceptual ambiguity in legal analysis.

This blogpost seeks to examine the Penal Code of the Islamic Emirate from the perspective of contemporary criminal law. To this end, the analysis will focus on several key axes: the status and legal nature of the document, conceptual ambiguities in certain key terms, structural challenges in legislative drafting, the consequences of vague criminalisation, the state of fair trial guarantees, and legislative gaps in the area of contemporary crimes.

Law or Fatwa? The Puzzle of a Document’s Identity

One of the first analytical challenges regarding this document is the blending of different normative levels within the structure of the legal text. In modern legal systems, there is usually a clear distinction between substantive rules (the definition of crimes and punishments) and procedural rules. This separation is intended to enhance clarity, predictability, and to limit the scope of judicial interpretation. However, in the Penal Code of the Islamic Emirate, this boundary is not consistently observed; in some instances, the legal text, jurisprudential sources, and even rules on the execution of punishments are presented within a single unified structure.

An example of this situation can be seen in Article 4. This article states the following regarding the implementation of various Islamic punishments:

In the enforcement of hudud, qisas, and diyat, rulings are carried out based on Sharia by the Imam or ruler; however, in discretionary (tazir) punishments, discipline may also be carried out by religiously authorised individuals.

Alongside this provision, the footnotes to the articles refer to classical jurisprudential sources such as Al-Fatawa al-Hindiyya and Radd al-Muhtar. In this way, the legislator not only sets out the legal rule but simultaneously incorporates its jurisprudential foundation into the structure of the text. This legislative method results in the intertwining of three distinct normative levels within a single provision:

1. Legislative level: The text of the article, drafted as a binding legal rule for the courts
2. Jurisprudential level: Footnote references to classical fiqh texts that serve as interpretive foundations for the ruling.
3. Enforcement level: The provision allowing certain punishments to be carried out by non-judicial actors, such as a husband or other individuals deemed religiously qualified.

This blending can have significant practical consequences. First, a judge is not confronted with a single, clear legal text but is compelled to interpret not only the statutory provision but also the referenced jurisprudential sources in the footnotes. Such a situation expands the scope of judicial interpretation and, in the absence of clear interpretive standards, increases the likelihood of divergent understandings among judges and the exercise of personal discretion in issuing rulings.

Second, allowing the enforcement of certain tazir punishments by non-judicial individuals weakens the boundary between the formal justice system and private punishment. In most contemporary legal systems, the use of coercive force and the execution of punishments fall exclusively within the authority of the state and judicial institutions. However, under the Penal Code of the Islamic Emirate, delegating part of the penal authority to private individuals creates fragmentation in the exercise of criminal power, which may undermine the coherence of the criminal justice system.

From this perspective, the issue is not merely the content of a specific article. Still, it relates to the legislative method itself—a method in which law, jurisprudential interpretation, and the mode of punishment enforcement are placed side by side without institutional separation. Such a structure can reduce legal predictability and create the conditions for differing and at times conflicting interpretations within the judicial system.

Silence of the Law: When Nothing Is Clearly Defined

The principle of legality of crimes and punishments is considered one of the most fundamental principles of contemporary criminal law. According to this principle, no act is regarded as a crime and no punishment is imposed unless it has been clearly and precisely defined by law in advance. The purpose of this principle is to limit the state’s punitive power, ensure legal predictability, and prevent broad or arbitrary interpretations in judicial proceedings.

In the Penal Code of the Islamic Emirate, this principle is not explicitly stated. Nowhere in the text is it specified that no act outside this document shall be considered a crime, or that no punishment other than those prescribed therein may be imposed. Moreover, in some provisions of the document, criminal concepts are defined in such general and vague terms that a wide range of behaviours could fall under them. For example, some articles refer to crimes such as the “promotion of innovations (bid‘ah)” and “corruption,” without providing precise definitions or clear criteria for identifying these concepts. The absence of a specific definition of bid‘ah may lead to expansive interpretations, such that any behaviour, speech, or religious practice that deviates from the official interpretation could be classified under this criminal category. In a multi-religious society like Afghanistan, such ambiguity could potentially be used against other religious groups.

Similarly, the concept of “corruption” is used broadly in certain provisions without specifying its constituent elements or concrete examples. In the absence of such criteria, determining what constitutes corruption is effectively left to the interpretation of judges or enforcement authorities. This situation may lead to an expansion of criminal intervention and a reduction in legal predictability.

From a theoretical perspective, the principle of legality of crimes and punishments is one of the most important achievements of the intellectual developments of the Enlightenment in Europe. Thinkers such as Montesquieu advanced this principle as a reaction to judicial arbitrariness in pre-modern systems, systems in which judges could classify various behaviours as crimes based on personal interpretations of morality, religion, or custom. The establishment of this principle in modern criminal law marked the transfer of the authority to define crimes from judges to legislators and imposed clear limits on the state’s punitive power.

Within this framework, the absence of an explicit statement of the principle of legality and the use of vague concepts in the Penal Code of the Islamic Emirate may have significant implications for the criminal justice system. The weakening or omission of this principle in contemporary Afghanistan, especially in a society with broad religious and cultural diversity, may expand the scope of judicial interpretation and reduce the legal security of citizens. In other words, in the absence of precise legal definitions, the boundary between lawful and criminal behaviour remains unclear, creating the potential for arbitrary application of the law in judicial proceedings.

Continued in Part 2 which can be accessed here.

Crimen organizado en las Américas

En el continente americano, el crimen organizado opera a través de diversas actividades, muchas de ellas con un componente transnacional, incluyendo el tráfico de droga, la minería ilegal y la trata de personas. Los grupos criminales no solo logran infiltrarse en el Estado o actuar con la complicidad de funcionarios públicos, sino que, en algunos contextos, ejercen control territorial. Estas dinámicas afectan la protección y el ejercicio de los derechos humanos de la población, en particular derechos económicos y sociales reconocidos por el Protocolo de San Salvador, como el derecho al trabajo (Artículo 6) y a la educación (Artículo 13), así como derechos civiles y políticos consagrados en la Convención Americana sobre Derechos Humanos, incluyendo el derecho a la vida (Artículo 4) y la libertad de expresión (Artículo 13).

En Reyes Mantilla y otros vs. Ecuador, la Corte Interamericana de Derechos Humanos (Corte IDH) sostuvo que “los Estados tienen la obligación de garantizar la seguridad y mantener el orden público dentro de su territorio, y que, por consiguiente, deben emplear los medios necesarios para luchar contra los fenómenos de delincuencia, narcotráfico y criminalidad organizada” [párrafo 137], sujetos a las limitaciones impuestas por las obligaciones en materia de derechos humanos. Bajo distintas modalidades e intensidades, los gobiernos de la región han recurrido cada vez más a estados de emergencia, militarización y detenciones a gran escala para hacer frente a los grupos criminales, medidas que, a su vez, suelen constituir o derivar en violaciones de derechos humanos.

La resolución

La resolución de la CIDH es relevante porque afirma con claridad que las políticas de seguridad efectivas son compatibles con los derechos humanos. La Comisión busca sostener que es posible desmantelar a las organizaciones criminales a la vez que se respeta el debido proceso, las libertades individuales y la dignidad humana. Incluso va más allá al señalar que un enfoque basado en derechos humanos “constituye una condición indispensable para la legitimidad, eficacia y sostenibilidad de las políticas de seguridad” [página 1].

Para respaldar lo que plantea, la CIDH desarrolla cincuenta recomendaciones, entre ellas el fortalecimiento de las capacidades judiciales y de las fiscalías (22 y 27), la limitación del uso de los estados de emergencia (43-44), el combate a la corrupción y la impunidad (36-37) y la recuperación de activos ilícitos (30). Estas medidas reflejan un entendimiento del crimen organizado como un fenómeno estructural y policéntrico, más allá de un enfoque restringido al ámbito penal, al tiempo que reconocen la necesidad de una acción estatal urgente.

La Comisión también resalta el impacto diferenciado del crimen organizado sobre grupos vulnerables, retomando su trabajo previo sobre niñez, mujeres, personas LGBT y defensores de derechos humanos. Esto es significativo ya que llama a los gobiernos a diseñar e implementar respuestas que aborden las formas específicas en que estos grupos experimentan tanto la violencia criminal como las políticas estatales.

Limitaciones y el futuro

Es importante señalar algunas limitaciones. En primer lugar, la resolución de la CIDH no es vinculante y forma parte del soft law del sistema interamericano. El Artículo 41(b) de la Convención Americana sobre Derechos Humanos faculta a la Comisión a formular recomendaciones que dependen de la voluntad de los Estados de implementarlas.

En segundo lugar, parecería haber una cuestión irresuelta en torno a qué constituye una política de seguridad “efectiva”, en particular cuando reducciones de la violencia en el corto plazo tienen como contrapartida una erosión institucional en el largo plazo. En la parte considerativa, la CIDH critica enfoques basados en el control coercitivo que “ha[n] resultado en el incremento de manera desproporcionada de la población carcelaria sin lograr una reducción efectiva de los índices delictivos” [página 8], citando como fuente un artículo académico de 2008. Este tipo de políticas debe ser cuestionado cuando deriva en violaciones de derechos humanos, pero sus efectos no deberían ser sobreestimados ni generalizados, en particular a la luz de debates actuales en contextos como los de El Salvador, donde existen informes creíbles de mejoras en la situación de seguridad, acompañados de serias preocupaciones sobre su sostenibilidad y su impacto a largo plazo en el Estado de derecho y las instituciones democráticas.

Estas limitaciones no opacan la importancia del documento. La resolución fortalece el rol de la CIDH en la configuración de estándares regionales en un contexto de alta inseguridad y creciente presión por respuestas efectivas en el continente. Asimismo, pone de relieve que, sin importar la ideología política, el diseño de políticas de seguridad compatibles con los derechos humanos constituye un desafío compartido en la región.

La resolución es un paso importante, aunque no el primero ni el último, hacia la consolidación de un enfoque de derechos humanos para abordar el crimen organizado. Su impacto dependerá en última instancia de que los Estados, las organizaciones de la sociedad civil y la comunidad académica la tomen en serio y continúen desarrollándola.

Organised Crime in the Americas

Across the Americas, organised crime operates through a range of often transnational activities, including drug trafficking, illegal mining, and human trafficking. Criminal groups not only infiltrate public institutions or collude with state actors but, in some contexts, exercise territorial control. These dynamics severely undermine the protection and enjoyment of people’s human rights, particularly economic and social rights under the Protocol of San Salvador such as access to work (Article 6) and education (Article 13), as well as civil and political rights under the American Convention on Human Rights, including the rights to life (Article 4) and freedom of expression (Article 13).

The Inter-American Court of Human Rights (IACtHR) in Reyes Mantilla y otros vs. Ecuador affirmed that “states have an obligation to guarantee security and maintain public order within their territory and, consequently, must employ the necessary means to combat crime, drug trafficking, and organised criminal activity,” [para 137] albeit within the limits imposed by human rights law. While approaches vary across countries, governments in the region have increasingly relied on states of emergency, militarisation, and large-scale arrests to curtail criminal gangs—measures which often become sources of human rights violations themselves.

The Resolution

The IACHR resolution is important because it clearly states that effective security policies are compatible with human rights. The Commission seeks to assert that it is possible to dismantle criminal gangs while respecting due process, personal freedoms, and human dignity. It goes further by saying that a human rights approach “constitutes an essential element for the legitimacy, effectiveness, and sustainability of public policies and strategies in the field of security.” [page 1]

To support its claim, the IACHR sets out 50 recommendations, including strengthening judicial and prosecutorial capacities (22 and 27), limiting the use of states of emergency (43-44), addressing corruption and impunity (36-37), and recovering illicit assets (30). These measures reflect an understanding of organised crime as a structural and polycentric phenomenon, rather than merely a law enforcement problem, while still recognising the need for urgent state action.

The Commission also highlights the differentiated impact of organised crime on vulnerable groups, building on its previous work on children, women, LGBT persons, and human rights defenders. This is significant, as it calls for tailored responses that address the specific ways in which these groups experience both criminal violence and state policies.

Shortcomings and the Future

Some limitations should nevertheless be noted. First, the IACHR resolution is not binding and forms part of the system’s body of soft law. Adopted under Article 41(b) of the American Convention on Human Rights, which empowers the Commission to make recommendations, its impact ultimately depends on states’ willingness to implement them.

Second, there seems to be an unanswered question on what constitutes “effective” security policies, particularly when short-term reductions in violence come at the expense of long-term institutional erosion. In its preambular paragraphs, the IACHR critiques coercive approaches for leading “to the disproportionate increase in the prison population without achieving an effective reduction in crime rates,” [page 8] relying on a 2008 academic article. Such policies should indeed be questioned where they undermine human rights, but their effects should not be overstated or generalised, particularly in light of ongoing debates in contexts such as El Salvador, where there are credible reports of improvements in the security situation alongside concerns about their sustainability and their long-term impact on the rule of law and democratic institutions.

These limitations do not detract from the document’s overall significance. The resolution reinforces the IACHR’s role in shaping regional standards at a time of acute insecurity and growing pressure for effective responses across the Americas. More importantly, it affirms that, regardless of political orientation, designing security policies consistent with human rights is a shared challenge across the region.

The resolution is an important, though neither the first nor the final, step towards consolidating a human rights-based approach to organised crime. Its impact will ultimately depend on whether states, nongovernmental organisations, and scholars take it seriously and further develop it.

Even though there have been legislative advancements, such as the Anti-Honour Killing Laws (Criminal Amendment Bill) of 2016 which aims to identify the legal loopholes enabling killers to be acquitted by the victim’s families, the tradition of ‘honour’ killings still persists. The acquittal of Muhammad Wasim (Muhammad Wasim v. The State), demonstrated judicial inability to apply the law strictly, accepting family compromise despite the Act. These cases, alongside 2025 killings, highlight difficulties in enforcement amid societal tolerance.

These developments, while leading to arrests and momentary public outrage, underscore a struggle to dismantle entrenched cultural justifications undermining Pakistan’s obligations under international human rights law. A major part of this challenge lies in the legislative gaps persisting even after the landmark Anti-Honour Killing Laws (Criminal Amendment Bill) of 2016. The law’s crucial weakness is the insertion of the word ‘may’ instead of ‘shall’ when mandating life imprisonment (Tazir) for honour killings, even if the victim’s family grants a pardon. This small legislative detail grants judges vast discretion, allowing judicial officers to be swayed by patriarchal cultural pressures to accept a family’s waiver of Qisas (retribution) and let the perpetrator walk free, as painfully demonstrated by the acquittal of Muhammad Wasim. Furthermore, the defence often feeds on the argument that the murder was explicitly committed ‘in the name of honour’ which enables the case to revert to ordinary murder charges where family forgiveness is permissible.

These ambiguities are amplified by concerning judicial trends. Pakistan’s higher courts frequently show a troubling tendency by leaning towards technical acquittal, procedural flaws and retracted confessions over the clear intent of the Anti-Honour Killing law, especially when a compromise is reached. This trend underscores a continued societal and judicial deference to customary practices and the concept of family ‘honour’ over the state’s obligation to uphold the rule of law. While there is a counter-trend of the State challenging these acquittals in the Supreme Court, the persistence of these loopholes and the routine acceptance of family pardons serve as a constant reminder that without eliminating judicial discretion and definitively closing the door on forgiveness for honour crimes, legal reforms will remain insufficiently effective in protecting vulnerable individuals and ensuring justice.

A Shared Human Rights Imperative: Deconstructing ‘Honour’ and Upholding Rights

The inability to prosecute honour murders signals systemic failure. Despite the 2016 Act amending the Pakistan Penal Code (sections 299-311) to treat honour killings as murder punishable by death or life without family pardon discretion in most cases, enforcement remains irregular due to jirgas protecting offenders. Resource shortages and poor investigations lead to misclassifications and acquittals.

The failure of the state is also apparent in its disregard for its preventive responsibilities. Numerous instances demonstrate that at-risk persons, frequently young women asserting their fundamental right to select a mate, remain unprotected despite evident risks to their lives. These failures constitute a direct infringement of established international commitments, including Article 16 of the Universal Declaration of Human Rights and Article 23 of the International Covenant on Civil and Political Rights, as well as Pakistan’s obligations under the Convention on  the Elimination of All Forms of Discrimination Against Women (CEDAW)

Pakistan’s challenge stems not from absent laws, but from failing to enforce them against patriarchal authority, bias, and the myth of ‘honour’. To fulfil international obligations, lawmakers must replace judicial discretion with mandatory life sentences, dismantle jirgas, and invest in prevention like shelters for at-risk women. Only then can South Asia reclaim the right to life from the shadow of ‘honour’.

In terms of the South African Constitution, a declaration of constitutional invalidity is only effective if confirmed by the Constitutional Court of South Africa. So, although the High Court delivered a groundbreaking judgment on 30 September 2024 that would otherwise change the lives of victims of sexual violence going forward, and hopefully alter South Africa’s rape culture, this seismic legislative change will only come into effect if and when the Constitutional Court agrees with the decision of the High Court.

The Constitutional Court has been seized of the matter since 21 October 2024 and requested that written submissions be made to it by the end of January 2025. These directives presumably came as a result of an unexpected turn of events where the Constitutional Court is simultaneously considering an application for the confirmation of the High Court order granted in favour of The Embrace Project and Inge Holzträger, and an appeal lodged against that same order, by CALS. The Minister of Justice has yet to oppose either application at the Constitutional Court stage.

The Embrace Project and Inge Holzträger, and CALS agree that the impugned provisions in South Africa’s Sexual Offences Act are unconstitutional but their reasoning and remedies diverge almost entirely. At the core of The Embrace Project and Inge Holzträger’s argument is that an unreasonable belief in consent, which speaks to intent as a definitional element in sexual offences, is unconstitutional. Whereas the crux of CALS’ argument is that the absence of consent, as a definitional element in sexual offences, is unconstitutional.

CALS, in its written submissions before the Constitutional Court clarifies that it aims to shift society’s, and the law’s, perspectives through the remedy that it seeks, so that consent is no longer the distinguishing factor between sex and rape. This approach, known as a coercion-based sexual offences model, aims to define sexual violence for what it is – a violent crime – as opposed to sex without consent. Both the consent-based sexual offences model applied by South Africa, and the coercion-based sexual offences model being pursued by CALS, are internationally recognised and accepted as legitimate sexual offences models.

Given that the South African legislature has chosen to apply the consent-based sexual offences model, The Embrace Project and Inge Holzträger argue that CALS would have to show that the consent-based sexual offences model is unconstitutional, which would allow the Court to order the application of the coercion-based model without breaching the doctrine of separation of power between the judiciary and legislature. In its written submissions before the Constitutional Court, CALS argues that retaining consent as a definitional element of sexual offences amounts to unfair gender discrimination in terms of section 9(3) of the South African constitution (right to equality). CALS argues that because only gendered offences, which predominantly effect women and children, include consent as part of the definition of the crime, this amounts to unfair discrimination and is unconstitutional.

The Embrace Project and Inge Holzträger, on the other hand, argue that because the Court is required to work within the confines of the internationally accepted sexual offences model chosen by South Africa’s Legislature, the Court should confirm that an unreasonable belief in consent is unconstitutional, and place a positive obligation, in law, on persons to take objectively reasonable steps to ascertain that the other person consented to the sexual conduct in question, as the High Court did.

It remains to be seen in whose favour the Constitutional Court will decide. Either way, sexual offences will likely never be the same again.

“Rape is perhaps the most horrific and dehumanising violation that a person can live through and is a crime that not only violates the mind and body of a complainant, but also one that vexes the soul. This crime is an inescapable and seemingly ever-present reality and scourge on the nation and the collective conscience of the people of South Africa.” – Ndlovu v S [2017] ZACC 19 (para 53).

As articulated in a 2017 Constitutional Court judgment, South Africa is plagued by sexual and gender-based violence, which are considered the highest rates of such violence in the world. Despite this reality, South Africa’s rape conviction statistics sit at just over 1% of the total number of rape cases reported to the South African Police Service annually.

In an attempt to remedy this abysmal state of affairs, The Embrace Project NPC, an anti-gender-based violence and femicide advocacy organisation, and a rape survivor, Inge Holzträger, brought an application before the High Court of South Africa in Pretoria challenging the constitutionality of certain provisions relating to consent-based sexual offences in South Africa’s Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 (“Sexual Offences Act”).

The applicants’ constitutional challenge focused on the element of criminal intent, and its effect on consent. For example, rape in the Sexual Offences Act is defined as follows: “Any person (“A”) who unlawfully and intentionally commits an act of sexual penetration with a complainant (“B”), without the consent of B, is guilty of the offence of rape.”  The main argument was that the application of a subjective test by the courts when determining whether an accused person had intended to commit the sexual offence in question created an almost insurmountable barrier to convictions when there was an absence of resistance by the complainant – which is often the case, particularly in intimate partner sexual violence.

The effect of the use of the subjective test for intent was such that an accused person would often be acquitted even if a court found, in the case of rape, that there was unlawful sexual penetration committed by the accused without the consent of the complainant. An accused’s version needed only be ‘reasonably possibly true’.

The applicants argued that the current position resulted in the law inadvertently perpetuating rape myths and stereotypes, and asked that the Court place a positive obligation on the accused to take “objectively reasonable steps” to ascertain whether or not consent was given, as opposed to assuming so unless an objection was raised.

The Centre for Applied Legal Studies (CALS), a public interest law clinic, applied to intervene as a third applicant, seeking a different relief to that of The Embrace Project and Ms Holzträger. CALS argued for the removal of consent as a definitional element of the impugned sexual offences. This point is explained in a bit more detail at paras 37 to 48 in CALS’ Heads of Argument.  If CALS’ relief were to be granted, this would mean that an absence of consent would no longer have to be proven by the state in order to prove the commission of a sexual offence. However, an accused person would be able to raise the presence of consent as a justification or defence to unlawfulness only.

Both applications were opposed by South Africa’s Minister of Justice and Correctional Services who based her opposition primarily on the argument that the law, as it was, sufficiently protected victims of sexual violence; and that the relief sought by the applicants would place a reverse onus on the accused to prove their innocence, thereby infringe upon an accused person’s right to a fair trial.

The Centre for Human Rights and the Psychological Society of South Africa joined the proceedings as amici curiae, providing invaluable scientific evidence on the common behavioural responses of victims during a sexual assault – being tonic immobility (freezing) – which highlighted just how out of step the law was with reality.

In a judgment handed down on 30 September 2024, Judge Selby Baqwa found that by enabling a defence of unreasonable belief in consent, the Sexual Offences Act violated a number of fundamental constitutional rights of sexual violence victims and survivors as set out in The Embrace Project and Ms Holzträger’s papers. To temporarily remedy this position while the South African Legislature amended the impugned provisions, Judge Baqwa ordered a reading-in remedy that requires that accused persons take objectively reasonable steps to ascertain that the complainant consented to the sexual conduct in question, resulting in a groundbreaking decision for the fight against sexual and gender-based violence in South Africa. In Part 2 of this blog, I explain what is still required before this groundbreaking judgment begins to have the desired impact on the lives of sexual and gender-based violence victims and survivors.

As demonstrated by existing scholarship, the MRE violates the fundamental rights of married women guaranteed under Article 14 (right to equality) and Article 21 (right to dignified life) of the Constitution of India (“Constitution”). By refusing to convict husbands, the extant legal framework disregards the reality of intimate partner violence and reinforces archaic Victorian stereotypes, which deem women to be subordinate within marriage and presume their irrevocable consent within marriage. In the context of decriminalization of sodomy, the Supreme Court has observed how penal provisions criminalizing consensual sexual intercourse between homosexual adults effectively granted state-sanctioned legitimacy to discrimination against queer communities grounded in gender stereotypes. In our opinion, the MRE similarly lends the authority of the Indian State to intimate partner violence and non-consensual sexual intercourse/acts, perpetuates patriarchal stereotypes about married women, and dehumanize them. In view of the notions of ‘substantive equality’ and ‘anti-stereotyping’ underpinning the Constitution, laws premised on such stereotypes are constitutionally impermissible.

In addition to discarding the MRE, it is essential to introduce reforms to criminal law. At present, criminal law provisions concerning rape, such as Section 63 of the BNS (previously Section 375 of the IPC), are based on the absence of ‘consent’. These provisions assume that a woman is always be able to unequivocally express or withhold her consent. While such provisions align with years of feminist advocacy to recognise women as subjects of law and affirm their agency, they ignore the lived realities and vulnerability of married women, which arises from their bodily, social, and relational existence. Many victims of marital rape are situationally and pathologically vulnerable due to their abusive marriages, their interpersonal relationships, and the sustained control exercised by their husbands, which adversely affect their autonomy and exacerbate their powerlessness. As accounted by existing literature, they experience a ‘continuum’ of other violent acts, including physical, sexual, and financial abuse. Psychological research indicates how interpersonal violence involves ‘a method of continual and enforced domination’.

Considering this, not only should marital rape be included within the definition ‘rape’ under the IPC/BNS, but also be deemed to be a form of rape, wherein the man is ‘in a position of control or dominance over a woman’ punishable under Section 64(2)(j) of the BNS (previously Section 376(2)(k) of the IPC). In our opinion, such a classification will have two important implications. First, it will capture the lived realities of married women facing intimate partner violence, their vulnerable position, and the nature of domination experienced by them. Second, for rape cases of the nature enumerated under Section 64(2) of the BNS (previously Section 376(2) of the IPC), the burden of proof is shifted to the accused. The ‘presumption as to the absence of consent’, provided under Section 120 of the Bharatiya Sakshya Adhiniyam 2023 (previously Section 114A of the Indian Evidence Act 1872), states that the courts ‘shall’ presume that the woman did not consent, if she states so in her evidence. Accordingly, instead of requiring the victim to prove the absence of consent beyond reasonable doubt, this presumption requires the accused to rebut the presumption. Given the extremely private nature of the acts and the difficulty in gathering adequate evidence in cases of marital rape, such a presumption in favour of victims of marital rape will significantly assist them in meeting the burden of proof and in turn, protect her fundamental rights more rigorously.