One international court proceeding to watch for this year is the promise of Germany, the Netherlands, Australia, and Canada to file a complaint with the International Court of Justice (ICJ) against Afghanistan’s Taliban rulers over their increasingly repressive treatment of women. Using an overlooked provision in the international human rights treaty on women’s rights, the four States formally called on the country’s de facto authorities, the Taliban, to cease their violations of the treaty. The case has rightly been described as groundbreaking and is indeed a key reminder that legally the Taliban does not have a blank check when it comes to women’s rights.
But the case, announced in late September and likely to take many months before even potentially going to the ICJ, is not a silver bullet, and it may undercut obligations that require both the Taliban and the international community to act now to stop the abuses of women in Afghanistan. It also risks creating bad precedent on how States use international law to end gender discrimination in countries other than their own. The issue gained new urgency this week, as the Taliban said it would close all domestic and foreign non-governmental organizations that still employ women in Afghanistan.
The Case in Context
The planned complaint invokes the United Nations Convention on the Elimination of all Forms of Discrimination against Women’s (CEDAW’s) inter-state jurisdictional clause, which provides for disputes concerning the interpretation or application of the treaty to be resolved through negotiation, arbitration, and ultimately the ICJ. It is part of a more recent trend toward countries using human rights treaties to hold other countries to account without there being any specific injury to the complaining State(s). Another example of inter-state accountability mechanisms at work is the 243 recommendations addressed to Afghanistan in the U.N. Human Rights Council’s most recent Universal Periodic Review of the country this year.
The case also comes at a critical juncture in the international community’s posture toward the Taliban de facto authorities. In December last year, a political process through the U.N. Security Council resulted in a resolution urging increased international engagement with the Taliban. The resolution specified the need for Afghanistan to meet its “international obligations,” and acknowledged “the need to ensure the full, equal, meaningful and safe participation of Afghan women in the process throughout.” Yet this summer, when it came to the third U.N. convening of meetings in Doha, Qatar, to discuss Afghanistan, U.N. officials excluded women at the insistence of the Taliban. The Taliban had been excluded from the first meeting and refused to attend the second because Afghan women and civil society would be present, so Doha 3 was widely seen as an extraordinary betrayal of Afghan women by the international community.
Adding further insult to injury, after Doha 3, an emboldened Taliban quickly escalated and formalized its domestic legal campaign against women; just over a week after the meeting concluded, on July 9, it adopted its 115-page “virtue and vice” law, later publicly released in August. The U.N. has described it as “utterly intolerable.” Indeed, the next month, a coalition of 26 countries supporting the prospective ICJ case issued a statement noting that they have “repeatedly urged” the Taliban to voluntarily respect international human rights law but that “the situation has not improved — on the contrary, it continues to worsen.”
Campaign to Codify `Gender Apartheid’
Meanwhile, in the background of all these efforts — that is, the political process on Afghanistan and its emphasis on “international obligations,” Doha 3, and a new ICJ case — have been core questions about exactly what comprises the Taliban’s international obligations, whether those obligations sufficiently proscribe its anti-women agenda, and what international law currently requires of other States and the U.N. in tackling gender discrimination in the country.
All of these questions have been inadvertently complicated by a coincident international campaign to include “gender apartheid” in international law (with a focus on codification in a new draft Crimes Against Humanity Treaty). This has had outsized significance for Afghanistan because the international campaign to codify a crime of “gender apartheid” draws heavily on the Afghanistan example. Most notably, the U.N. special rapporteur on Afghanistan and a working group on discrimination against women and girls have echoed the language used by some Afghan women’s rights defenders to describe what the Taliban is doing as “gender apartheid.”
Unfortunately, the campaign has sometimes leaned heavily into the argument (in my view, incorrect) that gender discrimination in Afghanistan is so systematic and intentional that existing international human rights and other law is not fit for purpose. Additionally, the use by Afghan women and feminist allies of the term “gender apartheid” as an advocacy tool and the separate but associated legal push for a global crime of the same has led many international officials to avoid the term “gender apartheid” in relation to Afghanistan because they believe (also, without foundation) that it requires absolute and prolonged non-engagement with the Taliban.
Either or both of these stances — that international law doesn’t speak fully to the Taliban’s gender crimes and that tackling serious gender crimes might require full isolation of the Taliban — in practice has inadvertently suggested that both the de facto authorities in Afghanistan and officials in other countries have some latitude to sidestep the gender discrimination occurring in the country right now.
Who Holds Current International Legal Obligations In and On Afghanistan?
For its part, the Taliban presently bears responsibility for implementing the human rights obligations of Afghanistan, which is bound by seven of the nine core human rights treaties (all but the treaties on disappearances and migrant workers). Afghanistan is also a party to the Rome Statute that created the International Criminal Court and which relevantly proscribes the crime of gender persecution (the Office of the Prosecutor’s 2022 Policy on the Crime of Gender Persecution specifically identifies Afghanistan as a “[r]ecent example[] of acts that may amount to gender persecution[.]”). And it is further bound by international humanitarian law, which protects women and girls through general and specific guarantees.
Yet, the de facto authorities are not the only ones who have international law obligations in Afghanistan. For example, as with this ICJ case, States have the ability to sue Afghanistan under some of the human rights treaties (e.g., CEDAW but also the U.N. Convention Against Torture and Other Forms of Cruel, Inhuman, and Degrading Treatment or Punishment). Additionally, other countries’ human rights obligations apply extraterritorially when they exercise power or effective control, meaning when their acts or omissions impact the rights of persons in Afghanistan in a “direct and reasonably foreseeable manner,” such as through military, counterterrorism, development, and humanitarian activities. This means, for example, that countries’ decisions to send all-male delegations to meet with the de facto authorities should be scrutinized under their extraterritorial human rights obligations on non-discrimination and equality. The U.N., in operating in Afghanistan, is also obligated to respect human rights, including in line with the U.N. Charter. That requires, at minimum for example, a robust human rights due diligence policy with respect to non-U.N. security forces.
Why (or Why Not) Sue Afghanistan Under CEDAW?
Restrictions against the rights of women and girls by de facto authorities are required to be assessed under the full spectrum of binding international law, not just the obligations under the women’s rights treaty. So, why then a case under CEDAW? Legally, it makes a lot of sense. The committee in charge of monitoring the treaty has repeatedly said that religion, culture, and/or tradition cannot be invoked to undermine women’s rights. This is important. I’ve legally analyzed all the core edicts, laws, and policies of the Taliban since 2021 for the U.N., and none of these provisions are subtle in the use of religion as a pretext for fundamentally depriving women and girls of protection. The CEDAW Committee also has found certain practices to be illegal in other contexts — the requirement for male guardianship (mahram) in Saudi Arabia, for instance — that the Taliban also mandates.
As a non-discrimination treaty, CEDAW also contains a comprehensive framework of three overarching obligations to prohibit discrimination, ensure equality, and address gender stereotypes that is well-suited to address the breadth of the Taliban’s gender repression. The treaty also requires States to avoid and remedy violations against those who have intersecting forms of discrimination, such as rural women, women with disabilities, and minority women – that’s key in Afghanistan, where the Taliban’s edicts are experienced unevenly among women. And importantly, the treaty prohibits discrimination by private actors, which is an often-overlooked but pervasive challenge in Afghanistan as the Taliban’s campaign against women relies heavily on male family members to enforce its edicts and metes out punishment for failure to do so (e.g., punishing brothers or fathers for female family members not wearing “proper” hijab).
Notwithstanding this normative clarity, using the global norms package on women’s rights in this way to address the Taliban comes with risks. Foreign intervention in Afghanistan has long used women’s rights as a cover for coercion (e.g., the post-9/11 invasion in 2001 was framed in part as an effort to emancipate women); at the same time, the international community has too often spoken over or for — rather than with or at the direction of — Afghan women. And a case about Muslim women in Afghanistan brought by four Global North countries under international human rights law notionally bound for The Hague that will very likely turn on a substantive question about the relationship between religion and women’s rights risks reinforcing many well-known critiques of international law on women’s rights, including that it can be Eurocentric, top-down white saviorism that selectively focuses abroad.
As the complaint makes its way through the CEDAW process and potentially after many months to the ICJ, elevating local perspectives, such as those of Afghan women’s rights defenders and legal scholars, will be key. It also will be important to support fact-finding led by grassroots women’s organizations that often have the most access to victims and can therefore expose the full impacts of the Taliban’s policies. Having Afghan women and women’s organizations lead these processes ensures not only that the violations and potential remedies are fully captured, but also that holding the Taliban to account under human rights law is not too easily dismissed as being a Western project to save Afghan women. Other countries holding themselves to account for their own adverse foreign policies on women in Afghanistan will also help close the legitimacy gap that stems from this perceived one-sidedness.
Next Steps
Existing international law, not just under the women’s rights treaty but under a range of human rights guarantees, fully proscribes what the Taliban is doing to Afghan women. That gives States a foothold to act in relation to the Taliban, including by using the human rights treaties like CEDAW to sue them. But, ending abuses by the Taliban is not just about “holding #Afghanistan to account,” as the minister of foreign affairs of the Netherlands put it in a social media post when he and his counterparts announced the case.
Instead, beyond suing the Taliban and awaiting a potential ICJ case or a potential future “gender apartheid” norm, it is also important for governments and the international community to meaningfully act on women’s rights now, not only vis-à-vis the Taliban but also to hold themselves to account for what is happening to women in Afghanistan today. This means that States and the U.N. should — and in some cases legally must — right their own policies that have and continue to exacerbate the plight of women in Afghanistan. That includes ensuring that they do not fund or support activities with the Taliban that exclude or harm women and girls, such as in education assistance or counter-terrorism and anti-money laundering programing or in combatting climate change through technology transfers and other measures.
But it’s not only an obligation to refrain from making things worse for women and girls that is relevant here; instead, the international community should take positive steps to guarantee gender equality, including for example, by centering the restoration of education of women and girls and ensuring that any foreign policies on Afghanistan also have a plan for how to make up for all the lost opportunities for women and girls since the Taliban regime returned to power in 2021.