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Striking a blow for gender rights, Canada, Australia, Germany, and the Netherlands decided on September 25, 2024, to take the Taliban group controlling Afghanistan to the International Court of Justice for gender discrimination. Announcing the decision at a side event during the recent UN General Assembly, actress Meryl Streep spoke of the harsh restrictions faced by Afghan women. She noted that animals enjoy more freedom than Afghan women who are even barred from public parks. More than 20 countries have voiced support for the proposed legal action against the Taliban.
Meryl Streep was widely reported for her anguished remark that “A female cat has more freedom than a woman. A cat may go sit on her front stoop and feel the sun on her face. She may chase a squirrel into the park. A squirrel has more rights than a girl in Afghanistan today because the public parks have been closed to women and girls by the Taliban. A bird may sing in Kabul, but a girl may not.”
This would be the first time a country is charged with gender discrimination at the ICJ. The Western nations appealing to the international court have expressed an inclination to engage with the Taliban diplomatically to combat gender-based discrimination. Still, they are determined to seek justice through an ICJ hearing if these efforts fail. The action is rooted in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which Kabul was ironically the first signatory. CEDAW was ratified by the UN General Assembly in 1979 and came into effect in 1981.
The action before the ICJ is expected to deter nations that are signatories to the ICJ from establishing diplomatic ties with the Taliban regime. The concerned nations condemn the severe and systematic rights abuses in Afghanistan under Taliban rule, particularly the gender-based discrimination against women and girls.
The Guardian reported that once the case is referred to the ICJ, the Taliban will have six months to respond before the court holds a hearing. Hamdullah Fitrat, Taliban’s deputy spokesperson, countered that the rights of all Afghans, including women and girls, are protected and that no one faces discrimination under their rule. The regime said its actions align with their interpretation of Islamic law (Sharia).
An ICJ ruling that Afghanistan has violated the CEDAW could lead to individual or collective actions by other countries. It could discourage nations from deporting Afghan women and girls seeking asylum, and prompt them to grant refugee status to those facing gender discrimination.
On September 19, 2024, the European Parliament adopted a resolution (565 in favour, eight against, and 43 abstentions) acknowledging the worsening conditions for Afghan women and girls after the Taliban implemented their law on the “Promotion of Virtue and Prevention of Vice.” Soon afterwards, researchers from the Ham Diley Campaign and Monash University in Australia released a Handbook on Universal Jurisdiction: Holding The Taliban Accountable For International Crimes.
The European Court of Justice (ECJ), the highest court in the European Union, ruled on October 4, 2024, that women in Afghanistan are subjected to persecution by the Taliban, citing forced marriage and lack of protection against gender-based violence. The Court said an Afghan woman’s proof of nationality can suffice to entitle her to asylum status. The ruling came after Austria rejected refugee status to two Afghan women.
Thereafter, the Austrian Supreme Administrative Court referred the case to the ECJ after the two women challenged a decision by the Austrian authorities. The Austrian court sought clarification as to whether discriminatory measures against women in Afghanistan could be classified as acts of persecution.
The ECJ said some measures, in themselves, were acts of persecution: “This is true of forced marriage, which is comparable to a form of slavery, and the lack of protection against gender-based violence and domestic violence, which constitute forms of inhuman and degrading treatment.”
On September 18, 2024, the UN Security Council discussed the overall state of humanitarian rights in Afghanistan following further legal clampdowns by the Taliban. Kyrgyz diplomat Roza Otunbayeva, Special Representative of the Secretary-General in Afghanistan, said that the Taliban have imposed their own interpretation of strict Islamic law and that the population is at risk of a worsened humanitarian and development crisis as international funding declines. She rued, “The de facto authorities are exacerbating this crisis by policies that focus insufficiently on the real needs of its people and undermine its economic potential.”
Otunbayeva noted that the current humanitarian response plan, which requires 3 billion dollars, is only 30 percent funded. The lack of funding has led to discontinuing over 200 mobile and static healthcare services in 2024, and another 171 health facilities will shut down in the next few months. Food rations in communities already experiencing hunger have been cut from 75 to 50 percent of the required amount and millions of vulnerable civilians live without access to safe water.
She warned that the humanitarian crisis could soon become a developmental crisis because of Afghanistan’s fast-growing youth population, an economy that cannot employ them and the reluctance of international donors to provide development aid due to restrictions on the movement and activities of half the population.
UN Women’s Executive Director Sima Bahous observed that the new laws mandating women and girls to cover their bodies completely when leaving the home and prohibiting them from speaking in public and from looking at men they are not related to has further undermined the status of women in the country.
Human rights advocate Khalid Wardag blamed Zalmay Khalilzad for the plight of 20 million Afghan women. In a long post on X (Twitter), Wardag commented on Khalilzad’s claims that the Doha Agreement did not deal with human rights and focused on military withdrawal. Yet the Taliban’s history of human rights abuses should have been considered in the agreement. By not including explicit human rights protections, the agreement effectively ignored the safety and rights of Afghan citizens, particularly women.
Khalilzad’s assertion that the agreement was condition-based, not trust-based, was “naive at best and negligent at worst” as the Taliban’s history of violating agreements and committing human rights abuses was well-documented. Wardag says that Khalilzad’s view that the Doha Agreement was about military withdrawal and not human rights does not stand as senior US military officials have testified that the agreement had a “pernicious effect” on the Afghan government and military, leading to their collapse. This collapse resulted in the Taliban’s takeover, with devastating consequences for Afghan citizens, especially women.
The saddest case is that of Bibi Nazdana, a child bride who won a divorce after a two-year court battle, only to have the decree invalidated by a Taliban court. Just ten days after the Taliban seized power in Kabul, the man she had been pledged to at the age of seven, asked the courts to overturn the divorce ruling she had fought so hard to secure.
Initially, Hekmatullah demanded his wife when Nazdana was 15. Her father had agreed to a ‘bad marriage’ which seeks to turn an inimical family into a “friendly” one. Nazdana promptly approached the court for a separation, and secured the decree in two years, but after Hekmatullah appealed the ruling in 2021, Nazdana was told she would not be allowed to plead her case in person as the Taliban said it was against Sharia. As Hekmatullah became a member of the Taliban, he won the case.
This forced Nazdana and her brother to flee the country. Over the past two years, the Taliban hves systematically removed all judges, both male and female, and replaced them with people who support their hard-line views. Former Supreme Court judge Fawzia Amini, who fled the country after the Taliban returned, said women cannot be protected if there are no women in the courts. She said, “the Elimination of Violence against Women law in 2009 was one of our achievements. We also worked on the regulation of shelters for women, orphan guardianship, and the anti-human trafficking law, to name a few.”
She denounced the Taliban’s overturn court verdicts, like Nazdana’s. Afghanistan’s civil code is more than half a century old, she said, and “If a woman divorces her husband and the court documents are available as evidence then that’s final. Legal verdicts can’t change because a regime changes.” Moreover, “All civil and penal codes, including those for divorce, have been adapted from the Quran.”
On a positive note, Oxford University’s Oriel College partnered with the Yalda Hakim Foundation to establish a merit-based scholarship for female Afghan students in March 2021, just five months before the Taliban retook Kabul. Yalda Hakim is an Afghan-born Australian broadcast journalist. Hadia Azizi, who received the scholarship, will start a master’s degree in Refugee and Forced Migration Studies in October 2024.
References:
1] Taliban to be taken to international court over gender discrimination, The Guardian, Sept. 25, 2024.
2] Over 20 Countries Support Proposed Legal Action Against Taliban for Violating CEDAW, Sept 26, 2024.
3] Canada, Australia, Germany, and the Netherlands set to initiate legal proceedings against Taliban at ICJ, Jurist News, James Joseph, September 25, 2024.
4] EU top court rules Afghan women are a persecuted group, DW, Alex Berry, October 4, 2024. https://www.dw.com/en/eu-top-court-rules-afghan-women-are-a-persecuted-group/a-70404394
5] Afghanistan: UN warns of growing crisis under increasingly authoritarian Taliban rule, Sept 18, 2024. https://news.un.org/en/story/2024/09/1154491
6] https://x.com/Kali_Vardag/status/1839036552187621771?t=sva2wKQQBvV7RB8tWcbEsg&s=03
7] A child bride won the right to divorce – now the Taliban say it doesn’t count, Sept 29, 2024.
https://www.bbc.com/news/articles/cx24evnk5d2o
8] Yalda Hakim awards Afghan woman Oxford scholarship, Oct 1, 2024.
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