Introduction
The condition of women and girls in volatile Afghanistan is precarious. The Taliban’s resurgence has reversed decades of advancements in Afghan women’s rights, reinstating persecution and marginalisation. Notwithstanding the Taliban’s initial commitments to safeguard the rights of women and children, the human rights situation in Kabul deteriorated following the Taliban’s ascension to power in August 2021. The Taliban have intensified restrictions to exclude women and girls from public spaces. Women and girls are facing oppression under Taliban rule in nearly all facets of life as they are prohibited from attending schools, holding government positions, working in professions involving male colleagues, going out without a male guardian (Mahram) and expressing dissent. They are also prohibited from all sorts of public or political engagement. These restrictions reveal a pattern of systematic & institutionalised gender-based discrimination of women in all facets of life.
Afghanistan is a signatory to multiple international treaties, including the International Covenant on Civil and Political Rights (ICCPR) of 1966, the International Covenant on Economic, Social, and Cultural Rights (ICESCR) of 1966, the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) of 1979, and the Convention on the Rights of the Child (CRC), 1989. The Taliban’s restrictions on women and girls contravene international accords. Afghanistan is the sole nation that prohibits women from accessing secondary and higher education. The UN Special Rapporteur on Human Rights in Afghanistan characterises these measures, together with morality police and media limitations, as “gender persecution, a crime against humanity,” which is transforming Afghan society.
The Taliban’s 2023 Regulations on vice and virtue restrict women from exiting their residences unless completely veiled and prohibit them from singing or vocalising in public settings. In response to the Taliban’s severe mistreatment of women and children, Australia, Canada, Germany, and the Netherlands have declared their intention to challenge Afghanistan to the International Court of Justice (ICJ). This would mark the inaugural instance of a state utilising the ICJ to contest another state’s gender discrimination under CEDAW. This article examines the circumstances of Afghan women under Taliban control and how the case before the ICJ might alter their fate and provide relief from these oppressive policies.
Veiled Voices: Women’s Rights under the Taliban Rule
Afghanistan inaugurated its first girls’ school in 1921. In 1991, 7,000 women enrolled in college, 230,000 girls attended school, 190 women held professorships, and 22,000 women served as educators in schools.[i] Following the Taliban’s 2001 regime, less than one million Afghan children were enrolled in school, with no girls among them. The 2004 constitution allocated 27% of parliamentary seats to women and established gender equality. In 2021, Afghan women occupied 69 of the 249 parliamentary seats, engaged in peace negotiations, and were permitted to register their names on their children’s birth certificates and identity cards. A Ministry of Women’s Affairs, an independent human rights body, and legislation addressing violence against women were established.[ii] Women were also significant in law, politics, media, public spaces, parks, and educational institutions.
In three years, the Taliban have promulgated more than 80 edicts, 54 of which specifically affect women and girls. The recent prohibition restricts women from conversing with male strangers in public spaces. The morality police, formally known as the Propagation of Virtue and Prevention of Vice Ministry, have issued explicit directives to enforce the decree, designating males as exclusive speakers and women as obligatory listeners in public settings. Unemployed women are predominantly confined to their homes due to the new legislation. When outdoors, they are required to don a burqa and be escorted by a male. They are permitted just to engage in domestic tasks or handicrafts such as carpet weaving, ceramics, and garment sewing. Economic instability & lack of future prospects for women has purportedly heightened the incidence of forced and early marriages, undermining the autonomy of women and girls and rendering them vulnerable to abuse as such early and forced marriages have led to instances of domestic violence, forced pregnancies, rape, sexual violence, anxiety and depression, leaving the Afghan women at a deplorable state.
We are three years into their governance. Women are prohibited from accessing parks, gyms, or public bathing facilities. They are unable to continue their education past the sixth grade. Their participation in sectors beyond health and education is restricted. Numerous obstacles have impeded women’s access to justice and legal protection. The complete overhaul of the legal system and the consistent dismantling of the legal protections for women has further complicated the prospects of Afghan women to assert their legal rights. The prohibition on female advocates and judges exacerbates these concerns, depriving women of sufficient legal representation.
The Taliban’s decrees and actions have predominantly confined women to their homes. For many women, leaving their home might be a normal part of daily life, however, under Taliban rule, this once routine freedom has now become a distant dream for Afghan women, who now struggles for the freedom and autonomy to move freely in public spaces without any fear or restriction.
Embers of Change: The Role of ICJ in Protecting the Rights of Afghan Women & Ensuring Gender Justice
The Netherlands, Germany, Australia, and Canada will contest Taliban’s oppressive policies on women’s and girls’ rights in Afghanistan before the United Nations’ apex court. Twenty-six governments have endorsed a legal initiative to hold the Taliban responsible at the ICJ for persistent human rights violations against Afghan women and children. This is the inaugural instance of a nation being brought before the ICJ in The Hague to contest gender discrimination and affirm women’s rights.
Jurisdiction of ICJ
The ICJ may adjudicate complex disputes between states, but it requires the consent of the involved parties – a fundamental principle of international law. Afghanistan unreservedly acknowledged the jurisdiction of the ICJ by ratifying CEDAW in 2003, without any reservations to its compromissory provision (Article 29).
The legal obligation under International Law
The Taliban are not acknowledged as the legitimate government of Afghanistan. They though govern all 34 provinces and are regarded as Afghanistan’s de facto government. The Taliban assumes all obligations and responsibilities of the State of Afghanistan, including adherence to international treaties such as CEDAW, despite lacking international recognition. The International Law Commission’s (ILC) Draft Articles on the Responsibility of States for Internationally Wrongful Acts codifies customary international law, asserting that a ‘de facto government’ constitutes state machinery and that its ‘behaviour’ entails state responsibility (Article 4; Comment 4 to Article 9). Consequently, Afghanistan bears responsibility for the conduct of the Taliban.
The locus standi of the countries bringing the case before the ICJ
CEDAW permits any state party to contest Afghanistan’s compliance with the Convention before the ICJ, provided it acknowledges the Court’s jurisdiction. Articles 62 and 63 of the ICJ Statute permit additional state parties to co-file or intervene upon the initiation of a case.
Building a Case under CEDAW
The CEDAW presents a unique framework for addressing issues relating to gender equality within the international framework, as it compels the State parties to actively eliminate and prohibit gender discrimination in both public and private spheres, stretching further into the spheres of cultural and religious practices.[iii] In the case of Afghanistan, multiple provisions of CEDAW protecting the rights of women have been starkly violated, such as right to education (Art. 10); Employment (Art. 11); full enjoyment of women’s freedom (Art. 3); and Freedom of Association (Art. 7(d)) etc. While the influence of CEDAW has been robust and instrumental, its enforceability in the ICJ remains limited, especially in those countries that haven’t ratified the Optional Protocol, that allows filing of individual complaints. In X and Y v. Georgia, R.P.B v. The Phillipines, Angela Gonzalez Carreno v. Spain, Cecilia Kell v. Canada, Isatou Jallow v. Bulgaria, A.T. v. Hungary, the CEDAW Committee has applied the provisions of the convention to rule against States violating its obligations and reinforcing the rights of women by implementing substantive equality measures. These legal precedents can provide a foundation for gender-based claims within the ICJ framework. Although the recommendations of CEDAW are not binding, they can serve as persuasive legal tools, prompting states to fulfill its obligations under CEDAW. Further, Article 41(2) of the ICJ Statute mandates the notification of interim measures to the UN Security Council, urging the Council to concentrate on Afghanistan, especially on women’s rights. An applicant state asserting that Afghanistan has failed to fulfil its ICJ responsibilities may petition the Security Council according to Article 94 of the UN Charter, which, although rarely invoked, permits the Security Council to choose the method of implementing a ruling. Such a multi-dimensional approach to CEDAW can help the ICJ to hold the state parties accountable for gender-based violations through both formal and substantive visions of equality.
Battle at the ICJ: Complexities & Challenges
The Taliban governs Afghanistan; nevertheless, no country acknowledges them as the legitimate government. Former Afghan diplomats persist in representing Afghanistan at the United Nations, signifying that the UN does not acknowledge the Taliban. Litigation before the ICJ is restricted to states; hence, the intended complaint would be directed at Afghanistan, rather than the Taliban. It is well recognised that initiating legal action against a state does not necessitate the acknowledgement of its government, as laid down in United States of America v. Iran (1980); Ethopia v. South Africa (1960); Liberia v. South Africa (1960); & Gambia v. Myanmar (2019). Precedents set by the ICJ indicate that initiating legal action against Afghanistan does not equate to acknowledging the Taliban as its governing authority.
Submitting a complaint to the ICJ may be one of the final avenues to contest the Taliban’s oppressive measures against Afghan women and children. This litigation might establish a precedent for women’s rights worldwide and impact Afghans and Afghan women internationally. Although direct compliance from the Taliban may appear improbable, the impact of the ICJ decision should be evaluated within the framework of current diplomatic initiatives.
Conclusion
The pursuit of justice by Afghan women and girls is complex; yet, several international legal frameworks assist them in confronting the extensive horrors they endure. No accountability system can replace another in guaranteeing justice for Afghan women and girls. Each possesses advantages and disadvantages. When utilised and coordinated effectively, the ICJ case can enhance current procedures and accountability.
The ICJ tackles accountability for several international human rights violations, notably CEDAW. This makes Afghanistan and the Taliban responsible for a broader spectrum of atrocities that could otherwise remain ignored. The proceedings of the ICJ may progress more swiftly than criminal investigations and prosecutions, particularly regarding provisional measures, so exerting further pressure on the Taliban. Consequently, the international community must persist in championing Afghan women’s rights, offering sanctuary and assistance to those at risk, and pursuing legal measures in accordance with international law.
[i] Yahia Baiza, ‘Education in Afghanistan: Developments, Influences, and Legacies Since 1901’ Routledge 2013; Abdul Wajid Yaqubi & Ziaulhaq Mehrnoosh, ‘Afghan Women and the Issue of Education: A Hundred Years of Conflict Between Tradition and Modernity’ 54 Interchange 2023, 465-478; Misbah Abdulbaqi, ‘Higher Education in Afghanistan’ 6(2) Policy Perspectives 2009, 99-117
[ii] Sebghatullah Qazi Zada, ‘Legislative, Institutional and Policy Reforms to Combat Violence Against Women in Afghanistan’ 59 Indian Journal of International Law 2020, 257-283
[iii] Neil A. Englehart & Melissa K. Miller, ‘The CEDAW Effect: International Law’s Impact on Women’s Rights’ 13(1) Journal of Human Rights (2014), 22-47
This blog is written by Shubham Kashyap Kalita, Advocate; Post-Graduate, Rajiv Gandhi National University of Law, Punjab.