The government of Afghanistan has been warned that its violations of women’s rights will trigger a referral to the United Nation’s highest court – the International Court of Justice (ICJ) – unless it changes its policies. The initiative, taken by Australia, Canada, Germany and the Netherlands and supported by 22 other states, centres on alleged violations of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to which Afghanistan is a signatory. According to the procedures of the court, the Afghan government is offered a chance to resolve the dispute, failing which, the ICJ will take up the case. A spokesman for the Islamic Emirate immediately dismissed the allegations. While the court lacks enforcement power, it is not without teeth and a judgement against the IEA could lead to additional sanctions against the Emirate, as well as political pressure on those actors inclined towards normalisation. Rachel Reid provides an overview of the process, its potential impact and pitfalls.The move to take Afghanistan to the ICJ could be groundbreaking: CEDAW has been in place for more than 40 years, but never before has the court been asked to look into a state’s alleged breach of it. The initiative was announced by four foreign ministers at a side event at the UN General Assembly on 25 September 2024 in an emotional speech from the German minister, Annalena Baerbock, who described the restrictions on Afghan women and girls.
You are not allowed to go to high school. You are not allowed to do sports. You are not allowed to travel. You are not allowed to work. To take the bus. To speak to a man or boy. To see a doctor on your own. It sounds like prison. But this has been the reality for women and girls in Afghanistan since 2021. In Afghanistan, the Taliban are removing every last shred of freedom from women and girls. And now, they have even banned women from speaking in public. In German, we have an expression for that: ‘mundtot’. It literally means mouth-dead. To kill someone, by killing their voice. That’s what is happening right now.
In announcing their initiative, the four states accused the Afghan government of being responsible for “systematic gender discrimination,” as outlined here on the website of the Australian Foreign Ministry. It listed a broad range of restrictions: “Afghan women and girls are being socially, politically, economically and legally marginalized. The recently enacted so-called ‘vice and virtue’ law seeks to silence half the population and erase women and girls from public life.”
The four countries involved – Australia, Canada, Germany and the Netherlands – have effectively put the Islamic Emirate of Afghanistan (IEA) on notice that they intend to pursue legal proceedings at the ICJ, if it does not change its policies. In a statement published by the Australian government, they called upon “Afghanistan and the Taliban de facto authorities” to cease their violations of the human rights of women and girls and “to answer to the request for dialogue to address the concerns of the International Community on this matter,” including recommendations made through the UN’s Universal Periodic Review process. In addition to their side event in New York and media statements, AAN understands that a formal notification has been given to IEA officials.
There was a characteristic dismissal of accusations of discrimination by IEA officials, here in a tweet from deputy spokesman Hamdullah Fitrat:
The Afghanistan Islamic Emirate is blamed for violation of human rights and gender apartheid by some countries and factions. Human rights are protected in Afghanistan and no one is discriminated against. Unfortunately, efforts are ongoing to spread propaganda against Afghanistan on the say-so of a number of women to make the situation look bad.
IEA leaders are consistently proud of their policies on women. In his Eid al-Adha message in June 2023, for example, Supreme Leader Mullah Hibatullah Akhundzada said (as reported by AP):
The status of women as a free and dignified human being has been restored and all institutions have been obliged to help women in securing marriage, inheritance and other rights.
Given the Emirate’s stance that what others see as restrictions on women’s freedoms and behaviour are in accordance with divine law and, anyway, are a domestic matter that other countries have no right to interfere in, it seems all but inevitable that the ICJ will eventually take up the case. Should that happen, it would be the first time any country has been summoned to the court for discrimination against women.
How does the ICJ work?
The International Court of Justice, often called the ‘World Court’, is the judicial arm of the United Nations. It settles legal disputes between states in accordance with international law, as well as providing advisory opinions on legal questions referred to it by UN organs and agencies. Countries can file a case with the ICJ against another signatory country, which will be reviewed by its 15 judges, who come from all over the world. Decisions are binding, but the court lacks its own enforcement power – more on that later. Confusingly, the ICJ is based in The Hague in the Netherlands, which is also home to the International Criminal Court (ICC), an entirely separate court that addresses war crimes, crimes against humanity and genocide by individuals, not states.
The ICJ initiative focuses on violations under CEDAW – effectively a bill of rights for women – to which Afghanistan became a party in 2003. Conventions are signed by countries, not governments, so they remain in force regardless of changes in government. So, although the Emirate will no doubt question the jurisdiction of CEDAW, it remains bound by it under international law. Noticeably, none of the countries taking this initiative addressed the ‘Islamic Emirate of Afghanistan’ in their statements, choosing instead to refer to the ‘de facto authorities’ or the Taleban. They also sought to underline, in the words of the German foreign minister in the statement cited previously:
[B]y doing this, we are not politically recognising the Taliban as the legitimate government of Afghanistan. However, we stress that the de facto authorities are responsible for upholding and fulfilling Afghanistan’s obligations under international law.
The possibility that taking the IEA to the ICJ might contribute to its de facto recognition was a concern raised by women in consultations held over the past two years (such as one organised by the Afghanistan Human Rights Coordination Mechanism in January 2024, attended by the author). Parwana Ibrahimkhail Nijrabi, one of the women who led protests in Afghanistan after the fall of the Islamic Republic, who is now in exile, told AAN: “The ICJ initiative is a valuable and important effort, provided it does not result in the recognition of the Taleban.” Nijrabi adds: “In any process related to this initiative, it is essential that women, who have been victims of the Taliban’s crimes, are given an active and meaningful role.”
For Afghanistan’s rulers, however, it will undoubtedly seem unfair that they are bound by a treaty they did not sign, particularly when the complainant states do not recognise the Emirate as Afghanistan’s government. It puts the IEA in a bind: without recognition, it cannot represent the state of Afghanistan in order to withdraw or apply reservations to international conventions. At the same time, in order to receive recognition, it is possible that, among other things, it would need to stop violating CEDAW.
The IEA may, however, find some sympathy among some Muslim nations, some of whom have chosen not to ratify CEDAW, while others have done so with reservations (in an analysis of CEDAW in the Middle East and North Africa by Amnesty International in 2021, of the 14 signatories from the region, eight had registered reservations in the light of what they saw as parts that were incompatible with sharia law). When the Interim Afghan Government ratified the treaty in 2003, it was the first Muslim country to do so (rather “unexpectedly” according to this academic review, CEDAW and Afghanistan, which notes a context in which the new government was under pressure to demonstrate a commitment to gender equality). It is also striking that the United States itself has never ratified CEDAW, on grounds that the IEA would sympathise with – legal sovereignty, interlaced with some conservative ‘family values’ (summed up in this Heinrich Böll article ‘CEDAW and the USA: When Belief in Exceptionalism Becomes Exemptionalism’).
How long could legal proceedings take?
There are two stages before the court could step in: negotiation and arbitration, as laid out in Article 29 of the Convention. The IEA has been notified and invited to resolve the alleged breaches of CEDAW and now there needs to be signs of a “genuine attempt” to resolve the situation through negotiation. No time period is stipulated for this stage. The second stage, arbitration, has a six-month window. If the Emirate fails to respond, or arbitration cannot resolve the dispute, the case would go in front of the court.
Once a case reaches the court, final rulings can take years. However, interim decisions, or ‘provisional measures’, can be issued within weeks or months. For example, in a case filed by South Africa on 29 December 2023 against Israel, which it accused of violating the Genocide Convention in the Gaza Strip, the ICJ issued provisional measures within 28 days. It is likely that the four countries in the Afghan case would request provisional measures when filing a complaint against the Emirate.
What impact can the court have?
The ICJ is limited to issuing orders, such as instructing compliance with international obligations. For the most part, states adhere to ICJ rulings, although there are plenty of examples of states ignoring them. Instructing compliance might seem a relatively benign prospect for the IEA, which is accustomed to being chastised for breaches of international law. However, the ICJ’s orders are legally binding and failure to comply could result in a referral to other UN entities, most significantly the Security Council.
The politics of the Security Council are never straightforward. There are no guarantees that it would back up the court to enforce measures against the IEA. Not only is the US a CEDAW abstainer, but another permanent member, China, has not agreed to CEDAW’s article 29, the provision that allows for the court to step in when states have a CEDAW dispute.
That said, a number of IEA officials are already subject to Security Council sanctions, so it is possible for additional sanctions and/or oversight mechanisms to be imposed. This is where the potential teeth of this initiative start to be seen – the Emirate would like travel bans eased, not further sanctions imposed. It also wants UN recognition with all that flows from it, including taking Afghanistan’s seat at the UN General Assembly and having its diplomats recognised in capitals around the world. Even provisional measures from the ICJ could therefore pose an impediment to Emirate ambitions.
The other way that the ICJ has an impact is on the behaviour of other states. The furore that surrounded another ICJ examination – relating to Israel and its occupation of Palestine (further to this request from the UN General Assembly in 2022) – shows the potential ramifications of the court’s involvement. The court ruled in July 2024 that Israel’s long-term occupation of Palestinian territory was “unlawful” and amounted to de facto annexation, adding that Israel was in violation of the international prohibition on racial segregation and apartheid.
Israel itself has ignored the court, accusing it of antisemitism (see this statement from Prime Minister Benjamin Netanyahu), but the court ruling has ramifications for other states that could result in sanctions, arms embargoes, as well as other diplomatic and economic relations. There had been previous calls from the Human Rights Council and UN experts for an arms embargo on Israel, which had gone unheeded. But by finding that Israel violated human rights protections against apartheid, the ICJ put pressure not only on Israel but, as the Executive Director of Human Rights Watch, Tirana Hassan stated: “The court has placed responsibility with all states and the United Nations to end these violations of international law.” This includes those that are signatories to the UN Arms Trade Treaty and the International Convention on the Suppression and Punishment of the Crime of Apartheid. How an ICJ ruling could put pressure on states to act is explored in this opinion piece, ‘Why ICJ ruling against Israel’s settlement policies will be hard to ignore’ and this statement calling on other states to take action made by UN experts. In another case brought before the ICJ by Nicaragua, which aimed to stop German arms sales to Israel, the court chose in February 2024 not to issue provisional measures (finding that German arms sales had, in fact, decreased), but the judges did not dismiss the case and it seems that Germany may, in response, have halted arms sales. A host of other legal efforts to stop arms exports to Israel are underway, all of which will be strengthened by the ICJ’s ruling.
The ripple effect of an ICJ ruling – or even provisional measures – should, at least, give the IEA pause. If the IEA was found to be in breach of CEDAW, a strong court ruling or measure might have ramifications for how countries around the world and international organisations interact with it.
Who is behind the initiative
While Australia, Canada, Germany and the Netherlands took the limelight when this move was announced, the initiative was the culmination of almost three years of advocacy by Afghan and international women’s rights defenders, which included identifying countries willing to lodge a complaint before the court. The Open Society Justice Initiative has worked behind the scenes on this initiative for three years (as stated in this tweet), including providing this useful briefing on the process and hosting consultations with Afghan women. Among Afghan supporters, Shaharzad Akbar, Executive Director of Rawadari and former chair of the Afghanistan Independent Human Rights Commission (AIHRC), told AAN she hopes that “finally women in Afghanistan might see they are not forgotten.” Shukria Barakzai, former member of parliament and ambassador to Norway, is a co-founder of the Afghanistan Women’s Coalition for Justice, which has been engaged in advocacy on a range of justice initiatives, including supporting the ICJ route. Barakzai told AAN that “even with this simple announcement, it shows the Taliban they will be held to some kind of accountability.”
The countries bringing the complaint to the ICJ, however, are less than ideal for some advocates. All four states sponsoring the initiative previously backed the Islamic Republic and had troops on the ground in Afghanistan; the IEA will see them as inherently hostile actors. Moreover, although the German Foreign Ministry claimed its “partners” included “those from the Islamic world,” the list of 22 states supporting the initiative had only one Muslim majority country – Morocco. Given the Emirate asserts that its policies on women and girls are ordained by sharia, this is not ideal. Finally, as noted above, Germany itself has been involved in a fraught wrangle at the ICJ over its close relationship with Israel despite that state’s violations of Palestinian rights, which undermines its legitimacy – both in terms of upholding international human rights law and in leading a legal action that will take on the IEA’s interpretation of divine law. Barakzai says this baggage was a real concern for the Afghanistan Women’s Coalition for Justice, but that they are trying to win more support from Muslim states, prominent Islamic scholars and the Organisation of Islamic Cooperation (OIC).
Other legal avenues being pursued
The ICJ is not the only proposal using international law to challenge the Emirate on its policies on women and girls. In February 2023, the Special Rapporteur, Richard Bennett asked the International Criminal Court to consider the crime of gender persecution in its Afghanistan investigation. The ICC has taken strides to improve its track record in investigating and prosecuting gender-based crimes in recent years and in December 2022, released a new policy on gender persecution, a year later releasing a revised policy on gender-based crimes.
If this route were pursued, the case would be against individuals within the IEA leadership, not Afghanistan, as a state, in contrast to the ICJ initiative. As yet, though, the ICC chief prosecutor has said little in public about his Afghanistan investigation, to the frustration of victims who have already suffered years of delay (the court began its preliminary examination of the Afghanistan situation in 2006, but was only finally authorised to investigate in 2022). The prosecutor had already decided that he would only investigate alleged crimes by the Taleban and ISKP, ‘de-prioritising’ those allegedly perpetrated by former Republic forces, the international militaries or the CIA.
It is not known whether he has chosen to include the crime against humanity of gender persecution as part of his investigation. It could be that he has already requested authorisation from the judges of the ICC’s Pre-Trial Chamber for arrest warrants for this crime. Warrants can be issued ‘under seal’ (that is, in secret) to increase the prospects of apprehending the suspects (although given travel bans and the limited movement of the IEA leadership, the chances of arresting individuals while they visit an ICC-friendly country are already slim). Or the court might decide, if it did indict, that it would be better to make the warrants public, with the hope of it having a deterrent effect upon the IEA to the benefit of Afghan women and girls.
Alongside the push for legal proceedings against the Emirate for gender discrimination through the ICJ and possibly the ICC, since March 2023, a group of prominent Afghan and Iranian human rights defenders have led a campaign to establish a new crime of ‘gender apartheid’. The international crime of apartheid is defined in the Rome Statute as “inhumane acts” committed “in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.” The new crime would broaden the definition of apartheid to include gender as well as racial hierarchies.
Creating new international crimes is not quick or straightforward, but one potential avenue for this is a new standalone treaty on Crimes Against Humanity (bringing it into line with treaties for war crimes and genocide). This process is creeping forward, but it has many obstacles – and years to go (see this article on ‘Adding Gender to Apartheid in International Law’).
Conclusion
In the short term, the women and girls of Afghanistan cannot expect any immediate benefits from the ICJ initiative, as the German Foreign Ministry acknowledged when making its announcement:
Making use of the possibilities of the women’s rights convention will not change the situation in Afghanistan today. But it gives the women of Afghanistan hope. We see you, we hear you. We speak for you when you are silenced.
The rights of Afghan women and girls have been mentioned constantly by diplomats and in international fora since the IEA returned to power in August 2021, with repeated demands to the Emirate to reverse their policies. Yet official edicts restricting women and girls have only tightened. Meanwhile, notes Akbar, “normalisation continues.” The initiative to take Afghanistan to the ICJ could “at the very least,” she says, “delay their recognition and normalisation.”
There is often a question among activists about whether yet more international pressure for women and girls might result in a perverse hardening of restrictions by the IEA. When asked if that was a risk, Barakzai took a breath. “Can they make it any worse? We can’t breathe oxygen directly. We can’t even laugh in our house with a loud voice. What is left to be worse?”
Edited by Kate Clark
Afghanistan Peace Campaign
