Why honour killings fall short of standards required in criminal law
Mitigation is a small element in the judicial toolkit acknowledging the frailties of human nature. While intent (mens rea) bears criminal liability, the law adopts a softer view on impulsive reactions. But this is not a boundless discretion bestowed upon courts.
Honour killings are tantamount to encouraging summary executions by private individuals based on communal and/or personal affronts. The defence of Provocation is different. An essential ingredient of ‘provocation’ is loss of self-control. In most legal systems, the standard is higher where provocation requires immediacy and intensity. There are temporal and proportionality constraints built into it. This means the defence of provocation is limited by proximity of time between the provocating incident and reaction; the reaction must be immediate. It is also limited in terms of proportionality: the reaction must be proportional to the provocating incident. These concepts are by no means new to the Afghan legal system.
Legal safeguards are necessary for people who do not, or cannot understand the implications of their actions on account of mental incompetence generally (eg. insanity) or within a given period (eg. inebriation). Similarly, provocation defence assumes that reasonable and deliberate choices would have been made, but for, a sudden lapse in judgment in the moment of intense emotions. That is to say, mitigation is only permitted to a moment and context, where an otherwise non-criminal mind disintegrates enough to perform a criminal act. Implied in this reasoning is that the Court has to find that:
a) there was a change of state from a sound mind to an unsound mind;
b) that the change occurred immediately;
c) that the change resulted from a serious provocation;
d) that the response was proportional to the provocation;
e) and failing which, the subject would be held criminally liable.
However in an honour killing defence, mitigation is not premised on points (a)-(e). The mitigation applies regardless, i.e. even a man of sound mind possesses a default right to kill in the event dishonour, whether perceived or real.
The threshold of ‘sudden and grave provocation’ differs on a case-to-case basis. But the defence of honour is fundamentally different in nature. It rests on cultural norms while the perpetrator is fully aware of his actions. Just as personal prejudices are not permitted as a valid legal defence, communal or tribal tradition cannot be entertained by law if they infringe upon others’ lives and safety. Such a localized and regressive legal system will defeat the purpose of generally accepted principles of human behaviour. In addition, honour killings are never precipitated by provocation (as required by law) to constitute an adequate defence. Instead they are premeditated acts of homicide committed by conscious minds that calculate the consequences of ‘dishonour’, analyse its subjective effects upon themselves and then proceed to inflict a deliberate loss of life upon a member of the family.
Read More: Honour Defence Mitigation from Criminal Jurisprudence Perspectives
Written by:
Deborshi Barat
Supervising Lawyer
Natasha Latiff
Founder & Legal Advisor