Author: Alyssa Sperazza
University of Oklahoma College of Law, Norman

Introduction:

When Kabul fell on August 15, 2021[1], the world watched people flee to the airport, trying to grasp a small window of opportunity to evacuate. By the next day, the government was disbanded and the Taliban had taken complete control of Afghanistan[2]. They implemented new laws and abolished others, all of which had a noticeable impact on women and girls throughout the country[3].

At the time of the collapse, there were approximately 250 female judges in Afghanistan, accounting for ten percent of the Afghan judiciary[4]. As judges, they served in courts that ruled on a variety of areas including terrorism, domestic violence, and drugs. Their position on the bench gave them authority to sentence men, something the Taliban took great issue with. Upon the collapse, they were immediately without jobs, and the dangers that accompanied them because of their occupation grew exponentially[5]. Some of the men they had put away for crimes such as assault or kidnapping were now being released[6]. Attornies and judges in Afghanistan began reporting death threats from former prisoners, leading many to go into hiding or flee the country entirely[7]^.

An Era of Regression for Female Judges in Afghanistan:

Afghanistan signed the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on August 14, 1980, but did not ratify it until 2003[8]. This treaty legally bound Afghanistan to uphold the rights of women and protect them from all forms of discrimination. The UN has called upon the Taliban to honour their commitments, both to the CEDAW and other human rights treaties[9]. The past two years under Taliban control have not indicated any intent to act as per CEDAW. Rather, the country has become one of the most oppressive States for women. Blatant violations of the treaty have led some to seek and implement economic sanctions. However, caution should be urged when handing out such consequences. Sanctions levied against a country can, and do, have unintended victims. Most often, they impact those who suffer from the gross human rights abuses that the sanctions intend to condemn.

The Flip-Side of Sanctions:

These sanctions are intended to pressure the Taliban to change their behaviour and participate in a more inclusive political process. However, they can also have unintended consequences. Sanctions against the Taliban can disrupt the delivery of humanitarian aid to vulnerable populations in Afghanistan. They can also hurt the Afghan economy by restricting financial transactions and international trade. This can result in job losses and increased poverty, further destabilizing the country. Economic pressure from sanctions may push the Taliban to rely more on illicit activities, such as the drug trade and extortion, to finance their operations. The Taliban also use sanctions as propaganda to portray themselves as victims of Western aggression. This can fuel anti-Western sentiment and potentially attract support from sympathetic groups and individuals.

The 2004 Constitution of Afghanistan[10] enshrined women’s rights, stating that all citizens, regardless of gender, were to possess equal rights under the law. These legal rights for women also ensured the ability to run for office, the right to vote, the right to access education, the right to inherit property, and the right to choose whom to marry. The right to initiate divorce was among the many rights stripped from women after the Taliban returned. It was also notably the one that spurred an abundance of hatred towards the female judges in Afghanistan who granted them[11].

Lack of Representation:

With no women on the bench, the 20 years of progress for women’s rights in Afghanistan collapsed, reverting back to the pre-2002 era when the Taliban last controlled the country. In Afghanistan today, women face severe deprivation of their fundamental rights and freedoms, including the right to education, work, healthcare, freedom of movement, and protection from discrimination. Further, their exclusion from public life does not shield them from dangers, as even within their homes, they remain vulnerable. Female judges in Afghanistan once worked to protect women through legal means. However now, without advocates for women in the country, the absence of legal protection enables the Taliban to commit human rights abuses without consequences. With no domestic safeguards in place, international entities and governments must step in to address this accountability gap.

Afghanistan made efforts in recent decades to better address the violence and discrimination that women face. The former government implemented the 2009 Elimination of Violence against Women (EVAW). The law helped increase reports and investigations of violent crimes against women and girls while working to increase conviction rates[12]. This law also addressed issues such as rape, battery, forced marriage, and abuse, preventing the acquisition of property, and prohibiting women or girls from attending school or obtaining a job. Both the EVAW and Afghanistan’s obligations under the CEDAW laid a steady foundation for women to thrive, contributing to the economy and their communities. The Taliban is now chipping away at this once-celebrated progress. A report from Human Rights Watch found that as the Taliban’s control progressed, there was limited enforcement of the EVAW, and consequently, many women and girls are left with no path to key projections and justice[13].

Modern Day Afghanistan:

A 2023 report by the UNHRC examined the legal repercussions against women, the Taliban implementing the harshest forms of gender-based discrimination against women with little domestic resistance[14]. The edicts issued, effectively abolishing all legal protections and accountability mechanisms for gender violence, leave women entirely at the mercy of a government that sees them as less than deserving of basic human rights and dignity. Numerous reports have been written and people have also testified in front of international bodies and governments about the deterioration of human rights. At the same time, it remains necessary that global powers continue to call out the Taliban for their actions. It is also equally important to not let their repressive ideology become the permanent and accepted standard in Afghanistan.

A global effort was made to evacuate female judges from Afghanistan. The threat against them increased as the Taliban flung open prison doors, freeing convicts who had vendettas against these women for putting them behind bars. International organizations like the International Association of Women Judges (IAWJ) mobilized to rescue female colleagues who were facing life-or-death situations, eventually evacuating nearly 200 women to safe communities[15]. These women and their stories stood as a stark reminder on January 24, 2023—the International Day of the Endangered Lawyer— of how different the country looks for women today and how much work there is now to be done.

Conclusion:

In Afghanistan, female judges have been seen as diametrically opposed to the Taliban’s ideology, making these times challenging for women, as Afghanistan now ranks as the most oppressive country for women’s rights. Despite this, women’s resistance persists. Wahida Amiri, a member of Afghanistan’s Women Spontaneous Movement, conveyed their determination not to be silenced, discriminated against, or repressed[16]. Afghan girls and women will continue to face violence, all while the international community has failed to hold the Taliban accountable for human rights violations. Without swift international action, the world risks complicity in the elimination of Afghan women and girls.

Decades of legal reforms, international pressure, and foreign military presence have helped advance women’s rights in Afghanistan over the past decade. However, the Taliban undid two decades of progress rapidly in weeks. It iss now clear that international intervention may not be as effective as internal efforts were in the past.

[1] Emma Graham Harrison, Luke Harding, The fall of Kabul: a 20-year mission collapses in a single day, The Guardian, (Feb 10, 2024, 10:42 PM), https://www.theguardian.com/world/2021/aug/15/the-fall-of-kabul-a-20-year-mission-collapses-in-a-single-day.

[2] David Zucchino, Kabul’s Sudden Fall to Taliban Ends U.S. Era in Afghanistan, The New York Times, (Feb 10, 2024, 10:43 PM), https://www.nytimes.com/2021/08/15/world/asia/afghanistan-taliban-kabul-surrender.html.

[3] Afghanistan: Taliban unveil new rules banning women in TV dramas, BBC News, (Feb 10, 2024, 10:46 PM), https://www.bbc.com/news/world-asia-59368488.

[4] Antonia De Lauri, Women Judges in Afghanistan: An Interview with Anisa Rasooli, CMI Insight, (Feb 10, 10:53 PM), https://www.cmi.no/publications/7268-women-judges-in-afghanistan-an-interview-with-anisa-rasooli.

[5] David F. Levi, Zohal Noori Rahiq, Susan Glazebrook, Tayeba Parsa, David Rivkin, Mark Ellis, Helena Kennedy, Allyson K. Duncan and Patricia Whalen, Leaving Afghanistan, 105 Judicature International, 2021, https://judicature.duke.edu/articles/leaving-afghanistan/.

[6] Claire Press, Female Afghan Judges hunted by the murderers they convicted, BBC News, (Feb 10, 2024, 10:57 PM), https://www.bbc.com/news/world-asia-58709353.

[7] Zucchino, David. “Afghan Women Who Once Presided over Abuse Cases Now Fear for Their Lives.” The New York Times, The New York Times, 20 Oct. 2021, www.nytimes.com/2021/10/21/world/asia/afghan-judges-women-taliban.html.

[8] Oliver, CEDAW leads way to gender equality in Afghanistan, Humanium, (Feb 10, 2024, 10:59 PM), https://www.humanium.org/en/cedaw-leads-way-to-gender-equality-in-afghanistan/.

[9] “Afghanistan: Un Committees Urge Taliban to Honour Their Promises to Protect Women and Girls.”

OHCHR, 30 Aug. 2021,

www.ohchr.org/en/press-releases/2021/08/afghanistan-un-committees-urge-taliban-honour-their-promises

-protect-women.

[10] Afghanistan 2004, Constitute, (Feb 10, 2024, 11:07 PM), https://www.constituteproject.org/constitution/Afghanistan_2004.

[11] The status of gender equality in Afghanistan since Taliban takeover, Women’s Agenda, (Feb 10, 2024, 11:08 PM), https://womensagenda.com.au/latest/the-status-of-gender-equality-in-afghanistan-since-taliban-takeover/.

[12] Gossman, Patricia. “‘I Thought Our Life Might Get Better.’” Human Rights Watch, 28 Mar. 2023, www.hrw.org/report/2021/08/05/i-thought-our-life-might-get-better/implementing-afghanistans-elimination.

[13] Id.

[14] “A/HRC/53/21: Situation of Women and Girls in Afghanistan – Report of the Special Rapporteur on the Situation of Human Rights in Afghanistan and the Working Group on Discrimination Against Women and Girls.” OHCHR,

www.ohchr.org/en/documents/country-reports/ahrc5321-situation-women-and-girls-afghanistan-report-spe cial-rapporteur. Accessed 28 Aug. 2023.

[15] Walsh, Lisa. “Escape from Kabul – and Those Left behind: National Association of Women Judges.” Escape from Kabul – and Those Left Behind | National Association of Women Judges, www.nawj.org/past-webinars/escape-from-kabul-and-those-left-behind. Accessed 28 Aug. 2023.

[16] Amiri, Wahida. “Women, Protest and Power- Confronting the Taliban.” Amnesty International, 14 Mar. 2023, www.amnesty.org/en/latest/campaigns/2023/03/women-protest-and-power-confronting-the-taliban/.