The Erasure of Rights of Afghanistan’s Women and Girls: Taking the Taliban to Court

The Taliban’s unlawful takeover of Afghanistan in August 2021 has become a “human rights catastrophe.” Afghan women and girls are being erased from public life as their rights are systematically annihilated.

On 26 September 2024, Canada announced a plan to take the Taliban to the International Court of Justice (ICJ) over their violations of Afghanistan’s obligations under the Convention on Elimination of All Forms of Discrimination against Women (CEDAW). The joint plan has been launched by Australia, Canada, Germany, and the Netherlands, with support from 22 other countries.

UN experts and human rights organizations are applauding this groundbreaking initiative as a starting point. They are also calling on the international community, including Canada, to do more to defend the rights of women and girls, and all peoples of Afghanistan. Ethnic and religious minorities also face grave persecution.

Legal basis for an ICJ case against the Taliban

The Taliban is not internationally recognized as the lawful government of Afghanistan. However, as de facto authorities, they are obligated to uphold all international law binding on Afghanistan. This includes the CEDAW, which Afghanistan ratified in 2003 during the interim government backed by the United Nations (UN) Security Council. Canada has been a party to the CEDAW since 1981.

The CEDAW provides a mechanism for States Parties to seek ICJ enforcement of the treaty. Canada’s announcement was the first step. The CEDAW first requires a six-month negotiation period. So far, the Taliban have peremptorily dismissed allegations of discrimination as “propaganda.” If the dispute is not settled within six months, one of the parties may request arbitration. If the parties cannot agree on the organization of the arbitration within a further six months, one of the parties may refer the dispute to the ICJ.

This means it will be at least a year before an ICJ action can be commenced. ICJ proceedings may take years to conclude. Meanwhile, the dire situation of people in Afghanistan makes additional measures essential.

Background: The 2021 Taliban takeover

The Taliban forcibly took over Afghanistan within days of the United States (US) August 2021 withdrawal of its troops after two decades of war. The Taliban’s unlawful takeover was facilitated by the poorly-negotiated terms of the February 2020 Doha Accord between the Trump administration and the Taliban. The Afghanistan government was excluded from the negotiations. The primary purpose of the Trump administration was to extricate American troops from Afghanistan before the 2020 election. The Biden administration has been harshly criticized for the failure of its weak attempts to renegotiate the terms of withdrawal, together with the chaotic August 2021 troop withdrawal.

The war in Afghanistan, led by the US beginning in 2001, was fraught with illegality and war crimes. Yet, from 2002 to 2021 there were undoubted advances in Afghanistan’s legal system and women’s rights.

Within days of the US withdrawal, the rule of law and human rights in Afghanistan began a violent and dramatic downward spiral. Neither talks with the Taliban nor international denunciations have yielded any cessation of the Taliban’s increasingly brazen rights violations.

Immediately after its takeover, the Taliban released thousands of prisoners, including people convicted of serious crimes. Released convicts promptly sought revenge, hunting down, threatening, killing, or disappearing the ousted government’s officials as well as judges and prosecutors who had convicted them. Women judges and prosecutors have been particularly targeted.

Hundreds of women judges and prosecutors, as well as officials, human rights defenders, and their families went into hiding and began to flee Afghanistan. Numerous prosecutors have been arbitrarily detained. At least 32 prosecutors have been murdered, including some women prosecutors. At least 100 women prosecutors have been injured.

In September 2021, the Taliban replaced the Ministry of Women’s Affairs with a “Ministry of Vice and Virtue,” which has systematically eradicated the rights of women and girls – half the population. The UN Special Rapporteur on human rights in Afghanistan has termed the situation of women and girls “gender apartheid.” The Taliban barred the Special Rapporteur from visiting Afghanistan in August 2024.

Within weeks of the US withdrawal, the Taliban purported to revoke the 2004 Constitution, which guaranteed an independent judiciary and due process in criminal justice. The Taliban now rule through decrees that palpably violate Afghanistan’s international human rights obligations.

The Taliban aggressively dismantled Afghanistan’s legal system. In November 2021, 50 armed Taliban forcibly took control of the Afghanistan Independent Bar Association (AIBA) during an AIBA meeting. The AIBA now operates in exile.

The Taliban’s de facto “Supreme Court” has no independence and acts as a prosecution and law enforcement agency. Since May 2023 it has ordered capital and corporal punishment. Hundreds of men and women have been publicly flogged for so-called crimes like “running away from home” or “romantic marriages.”

The Taliban have issued progressively severe directives, precluding women’s and girls’ education beyond primary school, forbidding women from working in offices, and harshly restricting their clothing and movement outside their homes. Women may not work as lawyers, for the UN, or for non-governmental organizations (NGOs). Women who protest have been subjected to arbitrary detention, torture, sexual assault, and killings. LGBTQ+ people are also in danger.

International outrage arose after the Taliban promulgated a 31 July 2024 morality law that requires women to cover every part of their bodies, including faces and hands. It also prohibits women from singing anywhere where they can be heard. The law forbids women from leaving their homes without an adult male relative, making eye contact with unrelated men, and speaking to non-Muslims. The law allows Vice and Virtue “enforcers” to use violence against women who fail to comply.

The Taliban’s Minister for Vice and Virtue claims that women’s voices should not be heard even by other women. Their voices are awrah, he says. English language media delicately translate the term awrah (or aurat) as “intimate,” but the word connotes nakedness, private parts, genitalia, or blemishes. Thus, the Taliban has ruled that exposure of women’s faces, hands, or voices is tantamount to shameful public nakedness. The edict profoundly insults women’s dignity and effectively imprisons them in their homes.

In August 2024, international news and social media were filled with videos of Afghan women resisting the decree by using their smartphones to record and post videos of themselves singing outdoors or at home, concluding with the words, “my voice is not aurat.” On 14 September 2024, Vice and Virtue enforcers instructed Imams in some Kandahar mosques to prohibit women from using smartphones.

On 26 October 2024, the Minister for Vice and Virtue went even further, forbidding women to pray or “anything else” within the hearing of even another woman. Canada’s Special Representative to Afghanistan condemned this edict, saying that “any illusions about the Taliban and their motives and their policies have long been extinguished.”

The Taliban has failed to ensure security for persecuted ethnic and religious minorities, including Hazara, Tajik, Uzbek and Turkmen people as well as Shiite Muslims, Christians, Sikhs, and Hindus. Persecution of Hazara people has been called a possible genocide. The only known remaining Jew fled Afghanistan in October 2021.

The Taliban have cracked down on media freedom. The majority of journalists and media workers, especially women, are now unemployed or have fled the country. The Afghanistan Journalists Center reported that during 2023 there were “at least 168 instances of violations of journalists’ rights…, including one journalist death, 19 injuries, 87 threats, and 61 arrests.”

Afghanistan is also experiencing a worsening humanitarian crisis, which the UN Secretary General’s Special Representative says is exacerbated by the Taliban’s own interpretation of Islamic law. Humanitarian aid is reportedly being misappropriated by Taliban “leaders and key commanders [who] are enjoying luxurious lifestyles…, building lavish homes, accumulating wealth and entering into multiple marriages.” UN officials, foreign governments, civil society, and humanitarian agencies are divided on whether and how to engage with Taliban de facto authorities.

There are 6.4 million Afghan refugees, largely in neighbouring countries, particularly Pakistan and Iran. Pakistan has grown weary of Afghan refugees, having taken in over 1.5 million refugees and asylum seekers since 2001. Refugees face an uncertain future there and have faced threats of deportation back to certain danger in Afghanistan.

Reticence of other States to intervene

In these circumstances, the move to take the Taliban to the ICJ has been welcomed, particularly in light of other countries’ reticence to prevent and hold the Taliban accountable for violations that are so grave, systematic, widespread, and discriminatory that they constitute crimes against humanity.

UN Security Council and UNAMA

The UN Security Council measures for Afghanistan have been limited to regular extensions of the mandate of the UN Assistance Mission in Afghanistan (UNAMA) as well as briefings, assessments, and appointments of special envoys and representatives who issue regular reports.

The Taliban announced in August 2024 that they would no longer cooperate with UNAMA after it denounced the July 31 edict silencing women. UNAMA issues regular reports on Afghanistan. Its 31 October 2024 report summarizes ongoing human rights violations, including arbitrary detention, public flogging, and limitations on freedom of expression.

In April 2023, the Security Council adopted a resolution expressing “deep concern” about the humanitarian crisis. The resolution also condemned the Taliban’s decision to ban Afghan women from working for the UN in Afghanistan, emphasizing that the ban is “unprecedented in the history of the United Nations.”

Beyond these measures, Security Council members have lacked consensus on what other actions to take. Russia and China, both Permanent Security Council members with veto power, have shielded the Taliban from pressure by Western countries regarding human rights and democratic governance. Other powerful States, such as India, are also seeking relationships with the Taliban. So far, the incoming Trump administration has not indicated its planned policies regarding Afghanistan.

UN Secretary General: “Doha 3” talks

Since May 2023, the UN Secretary General has facilitated several international meetings regarding Afghanistan. The third meeting was held in June 2024 with 25 countries. The Taliban refused to participate if Afghan women participants were included or if the meeting agenda provided for discussion of women’s rights. The UN organizers capitulated – the meeting proceeded without Afghan civil society, and human rights was not on the formal agenda.

It is no surprise that Afghan civil society and human rights defenders harshly criticized the meeting. Some donors expressed frustration. Canada attended the meeting but expressed extreme disappointment “that the UN organizers have excluded non-Taliban Afghan participants, including women’s advocates, religious and ethnic minorities, and human rights groups from participating in the meeting’s main sessions.”

The outcome was labelled as “hollow,” as its only commitment was to continue such meetings.

International Criminal Court

Afghanistan is a State Party to the Rome Statute of the International Criminal Court, which gives the ICC jurisdiction to investigate and prosecute Rome Statute crimes occurring within Afghanistan. The ICC Prosecutor is currently investigating crimes against humanity and war crimes alleged to have occurred in Afghanistan since 2002.

It is important to distinguish between the ICJ and the ICC. The ICJ addresses disputes between States and is not a criminal court. Thus, Canada’s proposed case in the ICJ is separate from the ICC Prosecutor’s investigation, although the ICJ cases may rely on some of the same bodies of evidence.

In 2022, the Prosecutor decided that due to limited resources, he would focus the Afghanistan investigations “on crimes allegedly committed by the Taliban and the Islamic State – Khorasan Province…, and deprioritize other aspects of the investigation.” The Prosecutor has been criticized for this decision, because it deprioritizes the investigation of war crimes allegedly committed by foreign armed forces during the war, particularly by US personnel. Canada is not exempt from allegations that its armed forces were complicit in war crimes committed from 2006 to 2007 when they transferred detainees to Afghan authorities with knowledge that the detainees were at risk of being tortured.

It remains to be seen whether the Trump administration will take a hands-off approach to the Taliban as some predict. The previous Trump administration did not demonstrate commitment to international human rights. The views of the incoming Trump administration on the ICC and Afghanistan are not yet known, but it is feared that they may reiterate the first Trump administration’s threats and punishment of the ICC prosecutor for any suggestion that citizens of the US or its allies might be investigated or prosecuted.

UN Human Rights Council

In October 2021, the UN Human Rights Council created a Special Rapporteur on human rights in Afghanistan. In his June 2024 report, the Special Rapporteur, Richard Bennett, concluded that crimes against humanity could reasonably be alleged, including the crime of “gender persecution.” This crime would almost certainly be included in the ICC Prosecutor’s ongoing investigation.

The Special Rapporteur recognized “an emerging gender-inclusive interpretation of the concept of apartheid as including gender apartheid.” He joins Afghan women human rights defenders in calling for “gender apartheid” to be recognized as a crime against humanity.

The Taliban announced in August 2024 that the Special Rapporteur would no longer be allowed into the country. While he will continue to receive information from knowledgeable interlocutors, the Taliban’s ban precludes face-to-face meetings on the ground in Afghanistan.

Despite the gravity of concern, Human Rights Council members have so far failed to heed recommendations made since 2021 by Afghan human rights experts, UN experts, and NGOs for creation of an independent investigative and accountability mechanism. Such a mechanism could work in coordination with the Special Rapporteur and the ICC prosecutor to collect and preserve evidence of human rights violations for use in international courts or in domestic courts that take universal jurisdiction over crimes against humanity and war crimes.

One obstacle to strong action by the Human Rights Council may be the US, which has been a member of the Human Rights Council since 2022. The US has not countenanced any measure that might expose members of US forces to potential charges of war crimes or crimes against humanity committed in Afghanistan. The US completes its term on the Council in 2024; this could potentially pave the way for other States to take the lead on a Council resolution to create a robust investigative mechanism.

Meanwhile, what could Canada do?

What can other countries, including Canada, do to increase assistance and protection for the women and other peoples of Afghanistan? Richard Bennett, the UN Special Rapporteur on human rights in Afghanistan, visited Canada in late October 2024 to meet with Canadian officials, academics, human rights organizations, recently resettled Afghan jurists and human rights advocates, former officials, journalists, and members of minority groups including Hazaras, Uzbeks and Turkmen.

Accountability

In his end-of-mission statement, the Special Rapporteur commended Canada’s “first step” to hold Afghanistan accountable for its “violations of international obligations under the … CEDAW, which may lead to proceedings at the International Court of Justice.” He urged that other countries support this effort.

He also urged Canada to consider measures to hold war criminals to account through Canada’s existing legislation. Canada’s Crimes Against Humanity and War Crimes Act can be used to prosecute those who have committed international crimes anywhere in the world (“universal jurisdiction”).

To support evidence-gathering for actions in the ICC, the ICJ, and domestic courts exercising universal jurisdiction, Canada could begin to exercise more diplomatic muscle with members of the Human Rights Council to support the creation of a strong investigative and accountability mechanism.

Canada could also join Afghan women’s rights groups in their advocacy for inclusion of gender apartheid in the draft articles of the forthcoming treaty on crimes against humanity.

Humanitarian relief and refugee protection

The Special Rapporteur urged Canada to sustain its commitment to humanitarian relief for people in Afghanistan and to continue its work on refugee protection. Canada has received more than 50,000 Afghan refugees since 2021, when Canada set up a special stream for Afghan women refugees.

However, Canada’s Immigration, Refugees, and Citizenship Canada (IRCC) is notoriously slow leaving many applicants to Canada and their families languishing in neighbouring Pakistan, which has threatened to deport Afghan refugees back to Afghanistan. In 2023, Canada sent 19 Afghan refugee claimants back to Afghanistan on security grounds. Canada has not disclosed how many women they deported.

Refugee rights advocates have criticized Canada for its 24 October 2024 announcement that it plans to reduce the number of refugees admitted to Canada by 20 percent, citing housing shortages. Two days later, the Special Rapporteur urged Canada to grant refugee status “to all Afghan women and girls asylum seekers on its territory, given the pervasive gender persecution they face under the Taliban.”

Several Canadian jurists and academics have provided support for some Afghan judges and lawyers and other activists in exile. Nevertheless, like other newcomers, Afghan professionals who resettle in Canada face hurdles that hinder them from practicing their professions and allowing them to continue their human rights and pro-democracy work. The Special Rapporteur joins Canadian organizations in urging the Canadian government to expand education visa opportunities and scholarships for Afghans “alongside long-term support for newly arrived refugees together with efforts to reunite families.”

Expand Canada’s “Voices at Risk” policy

Canada’s Voices at Risk policy for protection of human rights defenders abroad is seen as too narrowly focussed. For example, it may not apply to journalists or political activists. Nor does it apply to defenders after they arrive in Canada. Canadian scholars recommend expansion of the policy “in scope and size to include explicit support for transnational activism by exiled activists,” including pro-democracy activists and journalists.

Uphold Afghanistan people’s human rights

Above all, Canada should intensify its commitment to human rights, both domestically and internationally. In addition to taking legal action against the Taliban in the ICJ, Canada should ensure that all departments work together coherently, putting international human rights first.

Internationally, Canada should exert strong diplomatic action to ensure that the Taliban’s de facto rule is never normalized or recognized until it demonstrates compliance with Afghanistan’s international human rights obligations, including democratic governance that guarantees participation by everyone regardless of gender, ethnicity, ideology, or religion.