Afghanistan: a possible lawsuit before the ICJ might help Afghan women get justice

In September Australia, Canada, Germany and the Netherlands formally called upon Afghanistan to cease what the countries say are violations of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). This begins the process for the four countries to file a case with the UN’s International Court of Justice (ICJ). 

The action, which is supported by 22 other states, seeks to hold Afghanistan accountable for allegations of egregious human rights breaches against women and girls since the Taliban de facto authorities seized power in 2021. If the dispute proceeds to the ICJ, it’ll be the first time a country has been summoned to the international court for discrimination against women.

Markus P Beham, Co-Vice Chair of the IBA Human Rights Law Committee and an assistant professor at the University of Passau in Germany, says that a potential ICJ case is a positive step towards states holding the Taliban accountable. ‘If the ICJ were to find a violation, this would provide a much more solid legal basis for states to take action against Afghanistan, such as counter-measures, for example,’ he says.

CEDAW came into force in 1981 and was ratified by Afghanistan in 2003. By accepting the Convention, states commit themselves to various measures to end discrimination against women, including ensuring their equal access and opportunities in politics, the justice system, education, health and employment. Afghanistan was the first Islamic country to adopt the Convention without any reservations.

Following the Taliban takeover of Afghanistan the situation for women and girls in the country has become increasingly worse. Taliban leaders have banned girls from attending school beyond primary education. New laws introduced in August prohibit women from singing, speaking or reading aloud in public and force them to completely cover their body and face when outside.

Before Australia, Canada, Germany and the Netherlands can file a case with the ICJ, they must spend the next six months attempting to resolve the dispute with the Taliban and, failing that, allow another six months to try and organise an arbitration. Once the ICJ has accepted a case it can order provisional measures to block states from certain actions while proceedings are ongoing. Cases typically take years to conclude, however.

Fereshta Abbasi, a lawyer and researcher in the Asia division at Human Rights Watch, says the formal action taken by the states is a huge step forward for Afghan women and international movements for women’s rights. She says if the states do ultimately file a case with the ICJ, it’s important that they consult widely with Afghan women to ensure their perspectives are included in the proceedings. ‘At the heart of it needs to be the voice of women in Afghanistan and not only as victims and survivors but also as agents of change, human rights fighters, women’s rights defenders; they need to be recognised for what they have done in the past few years,’ says Abbasi. 

Some observers have raised concerns that bringing proceedings against Afghanistan at the ICJ may contribute to the recognition of the Taliban as a legitimate government. In the summer the UN held talks with Taliban representatives in Doha, which attracted criticism from human rights groups because of the decision to exclude Afghan women and civil society from the meetings.

The Australian government, however, has denied that an ICJ case would lead to a formal recognition of the Taliban. Legal precedent shows that because ICJ proceedings are state to state, it’s not necessary for a legitimate government to be in power to file a case. 

Abbasi believes that a potential ICJ case would reduce the possibility of countries recognising the Taliban as a legitimate government because of the seriousness of the proceedings. ‘It would actually be very difficult for states to recognise a government that is being identified by the highest court of justice in the world for violations of the rights of women and girls,’ she says.

Beham says that a potential ICJ ruling against Afghanistan would make it harder for companies to do business with the de facto Taliban regime. ‘From the perspective of a corporation, if any of its direct or indirect business partners at any point in time was involved with Afghanistan this would tarnish the entire supply chain,’ he says.

The Taliban has strongly indicated its refusal to engage with the UN on human rights issues. In August, Richard Bennett, the UN Special Rapporteur on the situation of human rights in Afghanistan, confirmed that the Taliban had banned him from entering the country after he documented severe and widespread abuses by the regime, describing these as ‘gender apartheid’ and calling for this to be recognised as a crime against humanity.

The Taliban reportedly said they barred Bennett because ‘his reports are based on prejudices and anecdotes detrimental to [the] interests of Afghanistan and the Afghan people’. A Taliban administration spokesperson has also stated that the Taliban respect women’s rights in accordance with their interpretation of Islamic law and local customs. Bennett said in a statement responding to the ban that he will continue to engage with the people of Afghanistan and document human rights violations. 

The IBA’s Human Rights Institute (HRI) and Afghan civil society groups are advocating for the UN to establish an independent monitoring mechanism to gather evidence about attacks on women’s rights in Afghanistan. Emily Foale, a project manager at the HRI, says the mechanism could support the potential ICJ case and mission of the special rapporteur, particularly since he’s banned from the country. ‘There’s a huge problem in terms of the fact that we don’t know the full extent of what is happening in Afghanistan,’ she says.‘Having an independent monitoring mechanism that could actually extract a lot of that evidence would assist massively in these kinds of international proceedings’.