Demand justice for Afghan women; Taliban must answer at the International Court of Justice
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Since the Taliban’s resurgence in Afghanistan, Afghan women have faced unprecedented levels of violence and discrimination, unprecedented in the history of any country in the world. In September of this year, four countries—Germany, the Netherlands, Australia, and Canada—took a major step forward in the United Nations General Assembly by announcing that they would file a complaint with the International Court of Justice (ICJ) against the Taliban’s discriminatory treatment of women. (1) Some 22 other countries around the world have welcomed the move and officially supported it. This comes despite the fact that the Taliban’s systematic discriminatory treatment has had no impact on the responses of countries and organizations around the world in the past three years—and the Taliban leader has so far issued 90 different decrees regarding women, which have now become official policy and have made women’s lives extremely difficult. (2) Due to these decrees, not only have women been deprived of equal rights and their civil and political activities under the Taliban regime, but they have also been deprived of basic rights such as education.
For example, after the Taliban regained power in Afghanistan, girls were banned from education beyond the sixth grade. The Taliban had said that this problem would be solved by creating a favorable environment, but this has not been done yet, and they have also banned women from working in government and non-government institutions. These restrictions are not only a violation of women’s personal rights, but also a strategic plan to eliminate gender equality in society. Many Afghan women activists, international rights experts, and researchers use the term “gender apartheid” for this type of fundamental discrimination. They have called on the United Nations in an official letter to recognize these practices as crimes against humanity under international criminal law. (3) International rights scholar Karima Bannon also wrote in her research article that the Taliban’s systematic behavior is similar to South Africa’s racial apartheid, and women in Afghanistan also face gender-based apartheid and discrimination. (4) It is worth noting that the purpose of this article is not to analyze gender apartheid, but rather to analyze and research the role of CEDAW (the Convention on the Elimination of Violence against Women) and the International Court of Justice (ICJ) based on international humanitarian law.
Afghanistan joined the CEDAW Convention in 2003, and according to this convention, the Afghan government or country is obliged to take effective steps to achieve women’s rights and eliminate discrimination against them. However, under the Taliban’s rule, this discriminatory behavior is being implemented by them.
Below we will examine what the Seida Convention is and how the mechanism of the International Court of Justice based on this convention can be applied in the case of Afghanistan.
Systematic Discrimination Against Women Under Taliban Rule and a Legal Analysis of the CEDAW Convention
In a meeting with Afghan women in September, UN Secretary-General Antonio Guterres said that Afghan women are demanding their rights against discrimination, and we (the United Nations) stand with them. Afghanistan will never find its rightful place on the world stage unless it respects the rights of Afghan women. (5) Similarly, the UN Security Council Special Rapporteur on Afghanistan, Richard Bennett, wrote in his August report that the Taliban had violated Afghanistan’s international commitments and continued to discriminate against women, disrespect human dignity, deprive girls of education, and other similar practices. (6) Similarly, in response to such actions by the Taliban, Islamic countries, particularly the Organization of Islamic Cooperation, issued a statement in May of this year emphasizing the need to protect the rights of women and girls in Afghanistan and the right of girls to education and work. (7)
In addition to these organizations, various countries around the world have repeatedly expressed concern about the discriminatory treatment of Afghan women and said that these restrictions are not only against international law but also against Islamic principles. However, the Taliban in Afghanistan have not only not lifted these restrictions but have further hardened their position over the past three years, a good example of which is the new law on the Ministry of Enjoining Virtue, Forbidding Evil and Hearing Complaints , which even restricts women’s voices. All these restrictions completely violate the CEDAW Convention. CEDAW, or the Convention on the Elimination of All Forms of Discrimination against Women, is an international convention on the elimination of all forms of discrimination against women. This convention was adopted by the United Nations in 1979 and entered into force in 1980. The purpose of this convention is to establish an international framework for protecting women’s rights, eliminate all forms of discrimination against women in society – and provide them with equal rights and opportunities.
It is one of the international human rights conventions that has been ratified by many countries around the world, including Islamic countries, and so far 189 countries around the world have joined the Convention. Afghanistan also joined this convention unconditionally in 2003.
The Convention outlines the obligations and measures of States to eliminate discrimination against women, including: taking appropriate short-term and long-term measures to eliminate discrimination against women, their participation in political and public life, their right to education, work, health care and family planning, and the elimination of discrimination against women in family life, social life and the economic sphere. In addition, the Convention outlines the role of the Committee on the Elimination of Discrimination against Women, which publishes national reports and holds meetings, and also refers to the role of specialized agencies and other instruments that have an impact on women’s rights. (8)
Afghanistan, as a party to the Convention and in line with its commitment to international law, is also obliged to respect and implement the Convention in terms of promoting and protecting women’s rights. In addition, it has submitted its periodic report to the CEDAW Committee on the improvement of the situation of women. The previous government of Afghanistan had taken steps within the framework of laws and policies to implement the Convention, such as the enactment of some laws and reforms in the past few years to protect women’s rights, for example, the law on the elimination of violence against women and the establishment of special courts in 34 provinces to combat violence and discrimination. In addition, the Afghan government has submitted its national reports to the CEDAW Committee on the situation of women and the implementation of the Convention three times, but currently, under the Taliban regime, the implementation of the CEDAW Convention is not only facing serious challenges, but they themselves are violators of the Convention.
Under Article 29 of this Convention, States Parties may bring a complaint and file a claim with the International Court of Justice against any State that fails to implement and comply with the provisions of this Convention. The first paragraph of Article 29 of this Convention states:
“Any dispute between two or more States Parties concerning the interpretation or application of this Convention which is not settled by negotiation may, at the request of any one of them, be submitted to arbitration. If no agreement is reached within six months from the date of the request for arbitration, any of them may, in accordance with the law, refer the dispute to the International Court of Justice.”
In addition, according to Article 29, the litigation process is divided into three parts: the first part is negotiation or discussion, the second part is arbitration or mediation, and the third part is adjudication.
In the negotiation phase, the disputing countries are expected to resolve their dispute peacefully and without the intervention of a third party. There is no time limit for this phase and it may last from a few days to a few months or even years. There is no time limit for the trial process, which takes place in court, but six months have been given for arbitration or mediation. In the case of Afghanistan, will the Taliban attend the negotiations or not? And if the Taliban do attend and their position, as their officials say, is that they have not violated women’s rights and have not abolished all the laws and restrictions they have imposed, then the arbitration or mediation process will begin. The arbitration must be conducted within six months with the mediation of a third party.
It is worth noting that although the Taliban are deprived of domestic legal and political legitimacy and international recognition, the Taliban’s violation of the Syeda Convention gives other member states of this convention the right to take a political and legal stand against Afghanistan and file a complaint against the Afghan government, and the Taliban are responsible here because in practice they rule Afghanistan. It is worth noting that if this case goes to the International Court of Justice (ICJ), Afghanistan will be the first country to be summoned to the International Court of Justice for discrimination against women.
Prevention of violations of the Sidda Convention and the role of the International Court of Justice
A violation of the Sidda Convention is a civil or civil claim, not a criminal one, so if negotiation and arbitration, which are the first and second stages, do not yield results, the matter is referred to the International Court of Justice for a preliminary ruling. Once a case is referred to the International Court of Justice, the provisions of the Statute of the International Court of Justice (ICJ) apply. This Statute regulates the functioning, jurisdiction, and procedures of the Court. It is worth noting that the International Court of Justice was established in 1945 as the principal judicial organ of the United Nations under the Charter of the United Nations. Article 1 of the Statute of the Court states that “The International Court of Justice, established by the Charter of the United Nations and having the status of a judicial organ of the United Nations, shall function in accordance with the provisions of this Statute.” (10) The Statute of the Court also sets out the hearing, decisions, and procedure of cases. The Statute consists of 70 articles that define the jurisdiction, procedure, and all conditions of the Court.
According to the statute of this court, only countries are parties to the lawsuit, not individuals or groups, because this lawsuit is between the government of Afghanistan (as the plaintiff) and the four countries (as the claimants). It should be noted here that the Taliban are being summoned as the de facto rulers of Afghanistan and will be a party to the lawsuit, because as the rulers of Afghanistan, they are obliged to be committed to international obligations. This court decides and judges civil or legal cases, not criminal ones. There is a difference between the International Court of Justice (ICJ) and the International Criminal Court (ICC). First, this court decides civil or legal cases, not criminal ones such as war crimes and genocide and other crimes. Second, disputes between states are decided in this court, not between individuals or groups. The headquarters of both courts are in The Hague, the capital of the Netherlands.
Types of court orders , enforcement guarantees, and enforcement mechanisms
The International Court of Justice (ICJ) issues two types of decisions: one is adversarial decisions and the other is an advisory opinion. Afghanistan is the defendant and four other countries are claimants for alleged violations of the Sidda Convention. The court will issue an adversarial decision on Afghanistan and the Sidda issue. The rulings of the International Court of Justice are binding, but the court does not have the power to directly enforce its decisions. If a state fails to comply with a decision, the other party can refer the matter to the UN Security Council, which may take action to ensure compliance, because under the UN Charter, all member states are obliged to comply with the decisions of the ICJ. Accordingly, Afghanistan, as a member of the UN, which gained its membership in 1946 , is obliged to implement the decisions of this organization. Most states voluntarily implement ICJ decisions because they accept the court’s authority and want to respect international law. Whether the Taliban will do so is questionable.
An advisory opinion is a provision in which the Court also issues advisory opinions on legal issues, usually at the request of the General Assembly, the Security Council, or specialized agencies of the United Nations.
It is worth noting that this court does not have an appeals process like national courts. This means that the court’s decisions are final and cannot be reviewed, but if new important facts come to light that could affect the decision in the case, a state can request a review.
Will the outcome of this trial be recognition of the Taliban or holding them accountable ?
The four countries – which have threatened to take the Taliban to the International Court of Justice – said in a joint statement : “This move has nothing to do with our strong position that we do not recognize the Taliban as the legitimate representatives of the Afghan people. Afghanistan’s failure to fulfill its human rights commitments and obligations is a significant obstacle to normalizing relations. In any case, we emphasize that the Taliban interim authorities have a responsibility to implement Afghanistan’s international legal obligations, in particular the elimination of discrimination against women and girls under the CEDAW Convention.”
Similarly, if we look at other cases around the world, it is clear that this court does not grant recognition to the parties involved. For example, in 2019, the African country of Gambia filed a lawsuit against Myanmar at the International Court of Justice (ICJ), claiming that the Myanmar military had violated the Convention on the Prevention and Punishment of Genocide by participating in the genocide of Rohingya Muslims. To follow up and participate in the court’s case, the Myanmar government sent a team to defend itself. In January 2020, the court issued a precautionary order and asked Myanmar to end the violence against Rohingya Muslims. In 2021, the Myanmar military staged a coup and a military government came to power. The case against Myanmar is still ongoing and the case has neither given international recognition nor legitimacy to the Myanmar military government.
So, submitting this case to the International Court of Justice is a legal act, not a political or formal recognition. This means that on the one hand, the recognition of the Taliban is a political act that is carried out by states and has its own process and principles, and on the other hand, they must be held accountable because they are recognized as the de facto authorities of this country by establishing their administrative control over 34 provinces of Afghanistan. According to international law, the Taliban inherit all the commitments and responsibilities of the Afghan government that are binding on the state, including adherence to international treaties to which Afghanistan is a party, such as the CEDAW Convention.
The role of civil society and women’s advocates
Article 34 of the Statute of the International Court of Justice states that States may be parties to the proceedings, which prevents individuals from freely intervening. On the other hand, victims and survivors are usually able to participate in the process of testifying as witnesses. In this regard, Afghan women’s advocates are actively working and have formed coalitions to present their testimonies as victims. Their contribution has been very effective so far because, in addition to international pressure, the Afghan Women’s Movement – of which I am proud to be a member – is working effectively in close coordination with countries and organizations to protect women’s rights. Today, when these four countries – Germany, the Netherlands, Australia and Canada – have appeared to file a lawsuit against the Taliban at the International Court of Justice, this is the result of the efforts of Afghan women.
Conclusion
The International Court of Justice (ICJ) offers a new avenue for justice and accountability for the women and girls of Afghanistan. If the Taliban do not comply with the Court’s rulings, one consequence will be that they will face further diplomatic, economic and political isolation. The second consequence will be that discussions about Afghanistan will be framed within a human rights framework, because we know that to some extent some countries are trying to engage with the Taliban, but the marginalization of human rights in this is a serious concern. The activation of the ICJ mechanism will pave the way for negotiations with the Taliban on a human rights basis. This will limit the Taliban’s ability to set the agenda, and it will not be like the Taliban refusing to discuss women’s rights at this year’s Doha meeting. Third, the launch of this court will give Afghan women hope and strength in their efforts to protect their rights, and fourth, it will increase the confidence of countries and people around the world in international laws and systems because it will send a message to the public that discrimination and violence against women are unacceptable.
Sources
(2) https://www.usip.org/tracking-talibans-mistreatment-women
(4) https://hrlr.law.columbia.edu/files/2022/12/Bennoune-Finalized-12.09.22.pdf
(7) https://new.oic-oci.org/SitePages/NewsDetail.aspx?Item=4612
(8) https://www.ohchr.org/sites/default/files/Documents/ProfessionalInterest/cedaw.pdf
(9) https://www.icj-cij.org/statute
