An Avenue to Justice for Afghan Women – Human Rights Watch

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This article was co-authored by Fereshta Abbasi, Natasha Arnpriester, and Duru Yavan

Bringing a CEDAW Case Before the International Court of Justice[1]

In a tumultuous Afghanistan, the plight of women and girls has reached a critical juncture. The resurgence of the Taliban in power has not only reversed decades of progress on women’s rights in the country, but has also plunged Afghan women into yet another dark era of severe oppression and erasure.

The Taliban, as de facto authorities, are freely violating the international human rights treaties that Afghanistan has ratified, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW or the Convention). A chilling regime of systematic gender-based discrimination and violence now prevails. Women and girls are restricted in all facets of life and society, including their rights to freedom of movement, expression, and peaceful assembly, in addition to their rights to employment, political participation, health care, and education.

Afghanistan stands alone as the only state in the world that bars girls from secondary and higher education. Women throughout Afghanistan describe their situation as isolation and suffocation, drawing comparisons to ‘living in prison-like conditions’.[2] United Nations mandate holders have concluded that ‘nowhere else in the world has there been an attack as widespread, systematic and all-encompassing on the rights of women and girls as in Afghanistan’.[3]

The international community has repeatedly condemned the Taliban’s systematic persecution of women and girls. While domestic legal options are currently unavailable, no international legal avenues have been pursued to ensure that women’s and girls’ rights are restored. An untried, overlooked but promising avenue exists. The International Court of Justice (ICJ or the Court) offers a potential platform where the voices of Afghan women could echo, demanding justice and accountability.

Under CEDAW, Afghanistan has consented to the ICJ’s jurisdiction to adjudicate disputes regarding its interpretation and application. Consequently, any other state party consenting to ICJ jurisdiction under CEDAW can bring Afghanistan before the Court to challenge its adherence to the Convention. This approach was highlighted in the June 2023 joint report by the United Nations Special Rapporteur for Afghanistan and the UN Working Group on discrimination against women and girls, which encouraged states to ‘[s]upport international and Afghan civil society justice-seeking efforts for Afghan women and girls for violations of their human rights, including through the […] International Court of Justice’.[4] UN experts have consistently reiterated this stance.[5] While recognising the complexities and challenging nature of such a case, this piece argues that it is not only legally feasible, but also could yield significant and positive impact for women and girls in Afghanistan. The following discussion aims to elucidate this possibility.[6]

Over the years, the ICJ has emerged as an increasingly important forum for adjudicating violations of international human rights conventions. The Court is currently hearing several cases of this nature, including Ukraine v. Russia (concerning the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the Genocide Convention); Armenia v. Azerbaijan (regarding ICERD); The Gambia v. Myanmar (concerning the Genocide Convention); Canada and the Netherlands v. Syrian Arab Republic (in relation to the Convention Against Torture (CAT)), and South Africa v. Israel (concerning the Genocide Convention). Bringing a case under CEDAW at the ICJ would be a landmark first, marking the Court’s inaugural examination of the world’s foremost women’s rights treaty.[7]

  1. The Taliban’s Systemic Violations of Women and Girls’ Rights under CEDAW

Since the Taliban’s takeover of Afghanistan in 2021, women and girls in the country have been subjected to severe forms of gender-based discrimination and violence, a situation deemed ‘unparalleled globally’,[8] and identified by UN mandates as potentially constituting gender persecution, a crime against humanity, and possibly ‘gender apartheid’.[9]

The Taliban’s discriminatory policies and practices against women and girls have resulted in a severe erosion of their rights and opportunities. These measures have been implemented through a range of decrees, both written and announced, directly contradicting Afghanistan’s obligations under the CEDAW.[10]

The Taliban have taken a series of measures that have had the effect of banning all girls and women from education beyond the sixth grade. First, through a decree of August 2021, the Taliban authorities banned co-education, and girls were no longer allowed to receive education from male teachers.[11] In September 2021 the Taliban announced the return of male teachers and students to secondary schools, without addressing whether women and girls could return.[12] By March 2022, the Taliban announced that girls from grade seven and up could no longer attend school.[13]

At the university level, women’s access to education was also restricted and eventually prohibited. When the Taliban returned to power, they imposed gender-segregated classes for female students, a mandatory campus dress code, and police control over dormitories, with women receiving severe threats in case of non-compliance. [14] In December 2022, the Taliban banned women’s access to university education.[15] The fear of harassment and violence by Taliban members has also discouraged many young girls from attending schools, even when they are permitted to, with some afraid to leave their homes altogether.[16]

Additionally, only a few months after seizing power, the Taliban instituted a de facto prohibition on many forms of employment for women in Afghanistan, limiting their roles in humanitarian agencies to specific sectors such as health care, primary education, and nutrition.[17] The Taliban authorities prohibited women from holding any senior positions in the civil service, including as judges.[18] In December 2022 and April 2023, respectively, Afghan women faced additional setbacks as they were banned from working with international non-governmental organisations and then with UN agencies except in the exempted areas.[19] Subsequently, in July 2023, beauty salons for women were closed, at a cost of 60,000 women’s jobs, and removing one of the very few spaces where women could find support and community outside their homes.[20]

Moreover, in most Afghan provinces, Taliban authorities have announced and frequently enforced rules prohibiting women from traveling or leaving their homes, including to go to their workplace without a male family member accompanying them.[21] The authorities also announced rules requiring women to fully cover their faces in public and stipulated that male family members would be punished when women violate rules regarding movement and clothing.[22] As a result, women and girls faced additional severe limitations in access to education, health care, and employment opportunities.[23] These restrictions also increase their vulnerability to harassment and violence, both in public and a home.[24] Beyond the physical limitations, the psychological impact of living in constant surveillance and fear has been pervasive.[25]

Forced and early marriages have also reportedly increased, partly in response to the economic crisis, further diminishing women and girls’ autonomy and exposing them to coercion and violence.[26]

Women have been forcibly disappeared and severely punished by the Taliban, including with lashings and imprisonment. These severe restrictions have left women economically dependent and vulnerable to continued violence and discrimination.[27]

Women’s access to justice has been also severely curtailed, with numerous obstacles obstructing their ability to seek legal remedies and protection. The imposition of a legal system that purports to rely solely on the Taliban’s strict interpretation of Sharia law often discriminates against women and girls, making it arduous for women to assert their rights in matters such as divorce, inheritance, and child custody. The ban on women working as legal professionals and judges further compounds these challenges, leaving women without adequate legal counsel.[28] Restrictions on women’s freedom of movement, stringent dress codes, and the requirement of male guardians not only restrict their access to legal institutions but also discourage them from pursuing legal action due to fear of retaliation or threats.[29]

The Taliban have also restricted access to health services for women and girls, with severe health consequences.[30] A primary barrier to health care access for women in some areas is the requirement for a male guardian to accompanying them to health clinics, which is also a violation of their medical privacy. The situation is exacerbated as many female health staff are unable to work or fulfil their duties under the current circumstances and no new female healthcare workers are joining the profession due to the Taliban’s bans on education for girls and women.

This combination of restrictions has significantly hampered women and girls’ ability to obtain essential medical and psychological support,[31] as well as to access sexual and reproductive healthcare services, including prenatal and postnatal care, sexual and reproductive health care, and maternal health services.[32] The denial of reproductive rights and healthcare access has had a profound psychological impact on Afghan women, with growing anxiety and fear regarding their reproductive well-being.[33]

Finally, women in Afghanistan are facing profound violations of their right to political participation, denying them representation in the political sphere. The Taliban leadership, all men, has also prohibited women from participating in governance at any level.[34] Most women who worked for the former government have been unable to resume their jobs. Stifling freedom of expression and the suppressing of women’s voices have marginalized them from political discourse.[35]

Taliban forces have used excessive force to disperse women protesting. The Taliban have arbitrarily detained many female protesters—in some cases with their entire family, including small children. Detained protesters and their family members have experienced torture and other ill-treatment in custody, including threats, beatings, dangerous conditions of confinement, denial of due process, and abusive conditions for release.[36] This type of treatment has affected female activists, protesters, politicians, and journalists, thereby inhibiting their participation in public and political life.[37]

2. Litigating Before the ICJ for the Rights of Afghan Women and Girls Under CEDAW

2.1. Jurisdiction Over Afghanistan Under CEDAW’s Compromissory Clause

The ICJ has jurisdiction to adjudicate disputes between states (i.e. ‘contentious cases’), but its jurisdiction is contingent on the consent of the involved states—a foundational aspect of international law. Such consent can be established primarily through (1) a special agreement between the states to submit the dispute to the Court; (2) reciprocal declarations made under the ICJ Statute; and (3) a compromissory (jurisdictional) clause in a treaty to which the states are party.[38] Approximately 350 treaties, including CEDAW, contain compromissory clauses that grant the ICJ jurisdiction over contentious cases.[39]

By ratifying CEDAW in 2003 without reservation to its compromissory clause (Article 29), the State of Afghanistan explicitly consented to the jurisdiction of the ICJ thereunder. Article 29 stipulates that any dispute between two or more states Parties ‘concerning the interpretation or application’ of the Convention that is not settled by those parties may be referred by one of them to the International Court of Justice.[40]

2.2. The Taliban’s Actions are Attributable to the State of Afghanistan

The Taliban lacks international recognition as Afghanistan’s government. However, they are considered the de facto authorities in Afghanistan as they have consolidated their administrative control over Afghanistan’s 34 provinces.[41] This means that, despite not having international recognition, the Taliban inherits all obligations and responsibilities that are binding on the State of Afghanistan, including adherence to the international treaties to which it is a party, including CEDAW. The International Law Commission (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts, which codifies customary international law, notes that a ‘de facto government…is itself an apparatus of the state’ and its ‘conduct’ is imputable to the state (Article 4; Comment 4 to Article 9).[42] Consequently, actions carried out by the Taliban are imputable to the State of Afghanistan.

As the UN High Commissioner for Human Rights has stated, ‘Afghanistan as a State remains bound by the international human rights obligations stemming from the treaties to which it is a party. The de facto authorities have responsibility for upholding these obligations by respecting, protecting and fulfilling human rights in Afghanistan’.[43] Additionally, because the Taliban authorities are not the recognised government of Afghanistan, they do not have the authority to withdraw from the state’s treaties including CEDAW, while still obligated to meet its provisions.[44]

2.3. Any State Party that has Consented to ICJ Jurisdiction Under CEDAW Can Participate in the Case

Under CEDAW, any state party can challenge Afghanistan’s adherence to the Convention before the ICJ, provided it has likewise consented to the Court’s jurisdiction under the treaty. Additionally, in accordance with Articles 62 and 63 of the ICJ Statute, once the case is initiated, other state parties may co-file or intervene.

Furthermore, Article 48(1)(a) of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, regarding the ‘invocation of responsibility by a State other than an injured State’ stipulates that any state can invoke the responsibility of another state if the obligation breached is owed to a group of states ‘for the protection of a collective interest of the group’. Commentary to paragraph 1(a) explains that such obligations ‘may derive from multilateral treaties’ sometimes referred to as ‘obligations erga omnes partes’ (Comment 6)—the principle that every state party to a treaty in question has an interest in other states’ compliance.[45]

Moreover, ‘[o]bligations coming within the scope of paragraph 1(a) have been ‘collective obligations’, i.e. they must apply between a group of states and have been established in some collective interest’ (Comment 7). The principal purpose of such collective obligations is ‘to foster a common interest, over and above any interests of the states concerned individually. This would include situations in in which states, attempting to set general standards of protection for a group or people, have assumed obligations protecting non-State entities’. Thus, CEDAW, with 189 states parties, attempts to ‘set general standards for protection’ for women, with the stated purpose of eliminating ‘discrimination against women in all its forms’.[46] Accordingly, any state party to CEDAW, provided they meet the jurisdictional requirements discussed above, can invoke Afghanistan’s responsibility.

2.4. Litigating Against the State of Afghanistan Without Recognizing the Taliban

While the Taliban have control over the State of Afghanistan, no foreign government thus far has officially recognised them as its legitimate governing authority.[47] Diplomats from the previous Afghan government continue to represent Afghanistan at the United Nations, indicating that the UN does not recognise the Taliban.[48] Nevertheless, the Taliban have sought to gain recognition and international legitimacy, motivated by the pursuit of financial resources, trade advantages, international status, and diplomatic relations.[49]

Litigation before the ICJ is only between states, meaning that the proposed case would be against the State of Afghanistan, rather than the Taliban. It is firmly established that initiating litigation against a state does not equate to, nor require, the recognition of its government. ICJ precedents confirm that a state initiating proceedings against Afghanistan would not result in recognising the Taliban as its government. For instance, in United States of America v. Iran (1980), the United States filed an application against Iran despite the ambiguous nature of diplomatic relations and recognition of the Iranian revolutionary government, referring to it as the ‘Government of Iran’ rather than the ‘Islamic Republic of Iran’, which the Iranian constitution specified. The case continued even after the US severed all diplomatic relations. [50]

In Ethiopia v. South Africa (1960)[51] and Liberia v. South Africa (1960),[52] both applicant states instituted proceedings against apartheid South Africa despite their lack of diplomatic relations and their active efforts to boycott and delegitimise it internationally. Moreover, in The Gambia v. Myanmar (2019), the international community’s lack of recognition of Myanmar’s military junta following its 2021 coup against the civilian government mid-ICJ proceedings, and its subsequent appearance before the Court, did not in any way provide legitimacy to the junta’s rule. Instead, the Court specifically proclaimed ‘that the parties to a contentious case before the court are States, not particular governments’.[53]

As such, pursuing claims against Afghanistan before the ICJ does not require a state to recognise the Taliban as the legitimate government; rather, it demonstrates that a state recognizes that violations of CEDAW are occurring within Afghan territory.

2.5 Procedural Pathway to Litigation and Relief Under CEDAW

To initiate a case at the ICJ under CEDAW, an existing dispute between states regarding the convention’s interpretation or application is required, often identified through multilateral statements or bilateral exchanges such as a note verbale. Per Article 29 of CEDAW, states must first attempt to negotiate a resolution of their disagreement under CEDAW and, failing that, try to organise arbitration for six months. Only after these diplomatic efforts are exhausted, can states bring the dispute to the ICJ.

Once a case is filed at the ICJ, the procedure, as set out in Article 43 of the ICJ Statute, starts with the applicant state(s) submitting written observations on the court’s jurisdiction, admissibility, and merits. The respondent state then either acknowledges these claims and presents its observations on the merits or raises preliminary objections, often addressed in a separate public hearing. If the court confirms its jurisdiction and admissibility of the case, it then proceeds to hear the respondent state’s observations on the merits, followed by a public hearing. The process concludes with the ICJ issuing its final judgement.

As stipulated in Article 41 of the ICJ Statute, once a case is initiated, any state involved may request the ICJ to order provisional measures—obligatory temporary protective or injunctive relief—to safeguard their rights pending a final decision. These interim rulings are aimed at preventing the aggravation of the dispute, particularly critical in prolonged cases relating to situations of armed conflict, or when broad violations of human rights are at risk—as is the situation for women and girls in Afghanistan.

In cases brought under analogous core international human rights conventions, particularly the ICERD, the Court has consistently found the ‘irreparable harm’ required for it to issue provisional measures and has traditionally done so within days or weeks of receiving the request.[54] For example, the Court issued provisional measures within 18 days in a case Ukraine brought against Russia,[55] and within 28 days for a case filed by South Africa against Israel.[56]

And while the ICJ issued provisional measures in only 10 cases during its first 50 years of existence, the number has significantly increased in the past decade, with even more cases involving such measures.[57] In a CEDAW case against the State of Afghanistan, provisional measures could include, for example, orders to lift discriminatory restrictions on education, employment, and movement.

3. Diverse International Participation in Defending Afghan Women’s Rights

As explained above, multiple states parties to CEDAW may jointly file or intervene as third parties in the potential case. This approach is evidenced by cases like Ukraine v. Russia concerning the Genocide Convention, in which 32 states filed declarations of intervention pursuant to Article 63 (third party interventions) and the European Union also contributed information; as well as in Canada and The Netherlands v. Syrian Arab Republic, in which seven states thus far have filed declarations of intervention. In the recent case of South Africa v. Israel, scores of states have issued public statements about the case, and already a number of states announced they will intervene as a third party. Nicaragua, referring to Article 62 of the Statute of the Court, filed an application for permission to intervene “as a party” in the case.[58] The strength of the case would be significantly enriched by the active participation of a broad spectrum of states from diverse regions.

Such involvement, with each state each bringing unique perspectives and regional insights, would ensure a more holistic and globally representative approach to the legal arguments and considerations. Unlike other human rights situations that can be politically divisive, the situation of women and girls in Afghanistan is a rare unifying issue that has garnered global condemnation. This unity should be reflected in the composition of applicants and interveners for the case. 

Given the cultural, religious, and geopolitical dimensions inherent in the case, it would be ideal for a diverse group of states (including from different regions) to come forward as co-applicants and interveners. This would provide the Court with a wide spectrum of perspectives and legal cultures, cultivating a balanced interpretation of CEDAW provisions and a more nuanced understanding of the challenges faced by Afghan women and girls. 

The involvement by states from various regions, particularly those outside the Western sphere, would also be crucial in countering the risk and perception of double standards and and could avoid reproducing a narrative rooted in historical grievances. The history of Western interventions in Afghanistan, coupled with the legacies of these actions, evokes justified frustrations, especially in the context of this case, where the narrative of ‘liberating’ Afghan women has previously been employed to justify military actions.[59] The de facto authorities have already referred to this narrative in the information they sent to the CEDAW Committee on 30 January 2023, asserting that ‘Western countries repeatedly stated that they came here to support Afghan women, but slowly and gradually this issue disappeared’.[60]Failing to confront this narrative could risk undermining the case’s prospects and could provide the Taliban with an opportunity to challenge its legitimacy, which would be counterproductive for the success of the case. States that might be particularly interested in championing this case include those that have adopted a Feminist Foreign Policy, which means that they commit to upholding equality and women’s rights in their bilateral engagements with other states and in multilateral forums.[61] Feminist Foreign Policy states’ participation in this case would aligned with their responsibility to implement tangible, feminist solutions to foreign policy challenges. Their active involvement, whether as co-applicants or interveners, is helpful for introducing a decolonial and intersectional feminist perspective to the proceedings, which includes among other things facilitating Afghan women’s effective and meaningful participation in the case. The engagement of these states is also crucial for addressing the nuanced issues involved, considering the intersectional nature of the various forms of oppression and discrimination experienced by Afghan women and girls.

Ultimately, the effectiveness and legitimacy of this case will rely on a diligent and respectful approach to the multilayered complexities experienced by Afghans. Case legitimacy is fundamental to ensure its effectiveness. As explained below, the enforcement of ICJ judgements relies heavily on the international community’s will to use the Court’s decisions in political negotiations, and on potential receptivity by the defendant state. An imperative is to ensure that the Afghan community, and especially Afghan women, are genuinely involved in the process—a process which is about them. An inclusive approach is fundamental to addressing the nuanced and intersecting challenges Afghan women and girls endure, providing a pathway to justice that respects the diverse contexts of their experiences.

4. Afghan Women’s Agency Over and ‘Participation’ in the Litigation

Ensuring and respecting the agency of Afghan women throughout this potential case is of paramount importance and a fundamental condition for the case to have true meaning. This should begin from the initial phase of building the case and extend throughout the implementation of any Court ruling. Effective and meaningful involvement of Afghan women in the case ensures it accurately represents their interests and addresses their longstanding exclusion from crucial discussions about their rights. Such active participation has the potential to transform this case into a groundbreaking platform for Afghan women to take control and assert their fundamental rights under international law.

The ICJ does not have formal procedures for direct victim/survivor participation in its proceedings. Article 34 of the ICJ Statute specifies that only states may be parties in court cases, precluding individuals from independently intervening. Despite this, there are ways for Afghan women victims, survivors, and witnesses to contribute and support claims against the State of Afghanistan. This can be facilitated through the applicant state(s), which can incorporate statements from Afghan victims and survivors into the case, and potentially ensure their presence at hearings.[62]This approach enables the voices and experiences of those directly affected to be better involved in the judicial process, especially following their longstanding exclusion from crucial discussions about their rights.

With that said, the involvement of Afghan women in the case should transcend any view seeing them solely as ‘victims/survivors of the Taliban’. They should be acknowledged as agents of change who lead and/or can effectively contribute to the case in various capacities should they want to—from gathering evidence and helping prepare case documentation to working in strategic communications, especially when communicating to the Afghan community. Afghan legal professionals should be part of the legal team, part of the decision-making process, and actively involved in shaping the litigation strategy, including legal argumentation and remedies sought, and where possible, leading oral argument. In this way, Afghan women’s own voices can literally be heard at the ICJ.

Nevertheless, one of the challenges will be to encompass the diverse range of violations and abuses endured by Afghan women and girls. Every effort should be made to ensure a comprehensive representation of the varied intersectional experiences of Afghan women and girls, particularly that of Afghan women who are still in Afghanistan, whose experiences of life under the Taliban are affected not only by their gender but by other factors including their age, disability, economic status, education level, location, sexual orientation, gender identity, and their religion and ethnicity, a concern particularly for women and girls who belong to marginalised religious and ethnic minorities, such as the Hazara.[63]

Ultimately, the effectiveness of the ICJ proceedings hinges not only on the final judgment but also on the inclusivity of the process. If Afghan women are not provided a platform for substantial and meaningful participation throughout the case, the true success of the proceedings, in terms of addressing and remedying their plight, cannot be realised. It will be the responsibility of the applicant state(s) to ensure that Afghan women are not only involved but are invited to be central to the entire legal process.

5. Potential Impact of an ICJ Case

Initiating a case before the ICJ presents a profound and substantive option for legal recourse, and perhaps one of the few available legal avenues to combat the oppressive measures the Taliban has imposed on the women and girls of Afghanistan. Such a case could have far-reaching implications not only for those within the country but also for Afghan women in the diaspora and would be precedent-setting for women’s rights globally.

5.1. Bolstering Diplomatic Efforts to Improve the Situation in Afghanistan

The Court’s rulings in contentious cases are not only legally binding on the states party to the proceedings,[64] but also significantly shape the legal and diplomatic landscape. Although direct compliance by the Taliban may seem unlikely per se, the influence of the ICJ should be considered in the broader context of ongoing diplomatic efforts. The ICJ’s decisions extend an authoritative legal narrative that extends beyond the immediate parties involved.

This would result in a ‘shadow of the law’,[65] wherein all states and other entities, like the UN, engaged in negotiations and interactions with the Taliban are compelled to prioritise the promotion and protection of women’s rights, rather than treating it as a peripheral issue in their conversations. As such, engaging with the Taliban in a context in which the ‘world’s highest court’ has pronounced Afghanistan in violation of women’s and girls’ fundamental rights places significant legal pressure on all interacting entities.

In addition, Article 41(2) of the ICJ Statute requires the communication of provisional measures to the UN Security Council, offering an opportunity to reinforce and bolster the focus on Afghanistan within the Council, particularly in relation to women’s rights. Furthermore, if an applicant state believes that Afghanistan has failed to fulfil its obligations under an ICJ judgement, it may bring the matter before the Security Council under Article 94 of the UN Charter, which, though underutilised, authorises the Security Council to determine the measures to be taken to give effect to a judgement.

5.2. Creating a New Forum for Afghan Women to Assert their Rights

There is mounting frustration among Afghan women over their strongly held view that the international community’s professed commitment to human rights and women’s rights in Afghanistan has not been matched by concrete actions. More than two years since the Taliban takeover, Afghan women continue to await meaningful international action. The proposed case aims to respond to Afghan women’s demands, offering a novel and dedicated platform to further champion their rights under international law. It provides an opportunity for Afghan women to actively participate in the pursuit of justice, advocate for their fundamental rights, amplify their grievances, and elevate their voices on a global stage from which they have been largely excluded.

Additionally, the litigation would grant survivors and victims of the Taliban an opportunity to share their experiences and help establish an official record of violations, which is important for future accountability measures and advocacy efforts. Despite the lack of domestic legal channels, there is hope for a future in which these crimes can be duly prosecuted, and this case could serve as a foundational step in building and enhancing the record for domestic or international accountability efforts.

5.3. Effect on Recognition of the Taliban

From a strictly legal standpoint, the Taliban’s appearance before the Court cannot result in their formal recognition.[66] Nevertheless, there is a valid concern that such litigation could inadvertently bestow some political legitimacy if the Taliban present themselves as state representatives. Yet, the likelihood of this conferring any significant legitimacy seems unlikely, and at most, it would only influence states already inclined toward recognising the Taliban—a scenario with no current examples.[67] Further, should the Taliban not appear to defend a case against Afghanistan, the case would still proceed, with the ICJ determining whether violations of CEDAW are occurring within the country.[68]

The proposed litigation could act as a substantial impediment to the Taliban becoming viewed as the legitimate government of Afghanistan. ICJ rulings, including provisional measures, that find that the Taliban has violated international law, would be an authoritative, legally binding determination that could impact Taliban efforts to gain international recognition and legitimacy. Notably, UN Security Council Resolution 2679 (2023) requested an independent assessment on Afghanistan which focused on the reintegration of Afghanistan into the international system. The assessment was circulated to the Council on 9 November 2023 and underscored the necessity of the Taliban’s adherence to Afghanistan’s international obligations, particularly under CEDAW, noting that key benchmarks must be fulfilled regarding progress on the rights of women and girls in accordance with the state’s treaty obligations. On 29 December, the Council adopted Resolution 2721, which, among other matters, took positive note of the independent assessment.

An ICJ decision that finds the State of Afghanistan in violation of CEDAW could be grounds for unilateral or collective (soft) measures by concerned governments against Afghanistan.[69] Additionally, such a decision could also deter countries considering sending back Afghan women and girls who have sought asylum and compel states to grant refugee status to female Afghan asylum-seekers solely on the basis of gender.

5.4. Advancing Women’s Rights through the First ICJ Adjudication of CEDAW

This case would mark a landmark moment as it would be the first time CEDAW, the world’s foremost treaty on women’s rights, is adjudicated by the ICJ.[70] It offers a significant opportunity to reinforce the principle of gender equality under international law, not just for Afghanistan, but globally. By spearheading this unprecedented case, involved states would establish an enduring legacy in the advancement of women’s rights.

5.5. Complementing Other Accountability Mechanisms that Address the Situation in Afghanistan

The quest for justice by the women and girls of Afghanistan is a multi-layered endeavor that benefits from the complementary roles of various international legal mechanisms in addressing the spectrum of violations they face. Each accountability mechanism has unique capabilities and limitations in delivering justice to Afghan women and girls, and none of them can substitute for another. The potential case before the ICJ too, when strategically employed and coordinated, can complement existing mechanisms and fill some of the accountability gaps.

Discussions around accountability in Afghanistan have primarily focused on criminal accountability, notably the International Criminal Court (ICC) investigation[71] and the application of universal jurisdiction.[72] Both are vital for addressing serious international crimes, yet they are constrained in their scope. This includes jurisdictional limitations on the types of crimes prosecutable and practical limitations on the number of individuals who can be tried. Critically, both the ICC and the exercise of universal jurisdiction are also subject to the discretion of their respective authorities, in terms of who and what is prosecuted.

In contrast, the ICJ offers a venue to address responsibility for a broader spectrum of violations under international human rights law, in particular, CEDAW. This opens a pathway for holding Afghanistan, and the Taliban by proxy, accountable for a wider range of violations that might otherwise go unaddressed. Moreover, litigation at the ICJ could potentially move faster than criminal investigations and prosecutions, for instance through provisional measures, applying more immediate pressure on the Taliban.[73]

As such, a synergistic approach that combines the ICJ, ICC, universal jurisdiction, and tools like the UN Special Rapporteur on Afghanistan’s mandate is essential. These mechanisms can reinforce one another through enhancing the vast range of legal principles involved, gathering evidence, and amplifying the severity of the situation on the international stage. This integrated strategy, as seen in situations like Ukraine and Myanmar, could hold out promises for a more comprehensive justice and reparations for Afghan women and girls for the myriad violations they have endured.

6. Conclusion

Amidst the harrowing situation for the women and girls of Afghanistan, the ICJ offers a novel option for justice and accountability. As the Taliban egregiously flout their obligations under CEDAW, other states who are parties to the Convention possess an opportunity to pioneer a historic move in the global pursuit for women’s equal rights. While such a case would be complex, it is legally feasible and has potential for meaningful impact. This avenue aligns with the increasing calls for justice-seeking efforts by Afghan women and girls and could contribute to restoring fundamental rights in the country and beyond.

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Fereshta Abbasi, Natasha Arnpriester, and Duru Yavan

(All names are listed in alphabetical order by surname.)

Fereshta Abbasi is an accomplished human rights lawyer and advocate from Afghanistan. For the past ten years, she has documented human rights abuses in Afghanistan with different organizations, including Human Rights Watch and the All-Survivors Project. Currently, she is the Afghanistan researcher for Human Rights Watch, focusing on research and documentation of ongoing abuses in Afghanistan.

Natasha Arnpriester is an international human rights lawyer and Senior Strategic Litigation Officer at the Open Society Justice Initiative, who specializes in developing innovative litigation strategies to tackle complex and challenging human rights issues. Her litigation spans regional human rights tribunals, several domestic courts, and the UN treaty bodies.

Duru Yavan is a human rights lawyer from Turkey, currently working as an Associate Strategic Litigation Officer at the Open Society Justice Initiative, where she uses strategic litigation and advocacy to protect and advance human rights at domestic, regional, and international levels. Her expertise lies in gender justice, accountability for severe human rights violations and international crimes, and the application of decolonial, intersectional feminist approaches to strategic human rights litigation.

***

[1] Since late 2021, Open Society Justice Initiative (OSJI) has conducted rigorous research, developed legal strategy, and compiled evidence in support of a potential ICJ case against the State of Afghanistan for the ongoing grave violations committed by the de facto authorities against women and girls. The article was greatly enhanced by the review and input of Manuela Londoño, Mariana Pena, and Genevieve Quinn. Advocacy and research compiled in anticipation of this case has also significantly benefitted from several OSJI colleagues, including Betsy Apple, Georgiana Epure, James Goldston, Sophie Li, Diana Romina Puerto Michaut, Ashrakat Mohammed, and Beini Ye, as well as Open Society Foundations (OSF) colleagues, Sana Ghouse, Omar Waraich, and Shehryar Fazli. OSF had an office in Kabul until 2023. Human Rights Watch has documented human rights abuses and violations of international humanitarian law by all parties to the conflicts in Afghanistan, including foreign armed forces, since the early 1980s. Since August 2021, Human Rights Watch has documented human rights abuses by the Taliban, including systematic violations of the rights of women and girls that amount to the crime against humanity of gender persecution; repression and censorship of the media; and abuses against people in custody. Human Rights Watch’s work in Afghanistan involves extensive research and advocacy to promote accountability and urge the protection of fundamental rights for all Afghans.

[2] United Nations Office of the High Commissioner for Human Rights, ‘Afghanistan: UN experts say 20 years of progress for women and girls’ rights erased since Taliban takeover’, OHCHR press release (8 March 2023) accessed 15 November 2023.

[3] United Nations Office of the High Commissioner for Human Rights, ‘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’, A/HRC/53/21 (15 June 2023) accessed 15 November 2023.

[5] See, eg, ‘Special Rapporteur to Human Rights Council: the Systematic and Institutionalised Discrimination that Seeks to Exclude Women from All Facets of Life in Afghanistan Necessitates an Examination of the Evolving Phenomenon of Gender Apartheid’, speech at the UN Human Rights Council (11 September 2023) accessed 15 November 2023.

[6] A more comprehensive version of this paper will be published as a legal brief by the Open Society Justice Initiative.

[7] The DRC attempted to bring a case under CEDAW (among several other conventions) in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), however, the Court found that the DRC never made any attempts to enter into negotiations or undertake arbitration proceedings with Rwanda concerning the application of Article 29 of the Convention, a required prerequisite, nor had it specified which rights protected by that Convention. See Order of 10 July 2002 Request for the Indication of Provisional Measures, para 79.

[8] United Nations Office of the High Commissioner for Human Rights, ‘Taliban edicts suffocating women and girls in Afghanistan: UN experts’ press release’ (19 June 2023) accessed 15 November 2023.

[9] United Nations Office of the High Commissioner for Human Rights, ‘Afghanistan: Latest Taliban treatment of women and girls may be crime against humanity, say UN experts’ press release’ (25 November 2022) accessed 15 November 2023. For an overview of the End Gender Apartheid campaign, see accessed 15 November 2023.

[10] See full list at United States Institute of Peace, ‘Tracking the Taliban’s (Mis)Treatment of Women’ accessed 15 November 2023.

[11] Srishti Goel, ‘Taliban declare ban On Co-education in Afghanistan, Prohibit Men From Teaching Girls’ (Republicworld.com, 30 August 2021) accessed 15 November 2023.

[12] Emma Graham-Harrison, ‘Taliban ban girls from secondary education in Afghanistan’ Guardian (London, 17 September 2021) accessed 15 November 2023.

[13] Masoud Popalzai and Alex Stambaugh, ‘Taliban postpones return to school for Afghan girls above 6th grade’ (CNN, 24 March 2022) accessed 15 November 2023.

[14] Amnesty International. ‘Death In Slow Motion. Women And Girls Under Taliban Rule’ (2022) 22 accessed 15 November 2023.

[15] Associated Press, ‘Taliban bar women from university education in Afghanistan’ (AP News, 21 December 2022) accessed 15 November 2023.

[16] United Nations Office of the High Commissioner for Human Rights, ‘Afghanistan: Quality Education Must Be Equally Accessible to All, UN Experts Say’ (OHCHR, 20 March 2023) accessed 15 November 2023.

[17] Al Jazeera, ‘Taliban Ban on Women Has Forced UN into ‘Appalling Choice’’ Al Jazeera (11 April 2023) accessed 15 November 2023.

[18] Human Rights Watch, ‘Afghanistan’, in World Report 2023 accessed 15 November 2023.

[19] Sima Bahous, ‘Statement: The Decree Barring Women in Afghanistan from Working in Non-Governmental Organizations Is Yet Another Stark Violation of Women’s Rights’ (UN Women, 27 December 2022) accessed 15 November 2023.

[20] ‘Beauty Salons in Afghanistan Are Closing on Taliban Orders’ Al Jazeera (26 July 2023) accessed 15 November 2023.

[21] Human Rights Watch (n 18).

[22] ibid; Heather Barr and Sahar Fetrat, ‘Afghans Call to #FreeHerFace—Campaign Opposes Taliban Forcing On-Air Female Journalists to Cover Faces’ (23 May 2022) accessed 15 November 2023.

[23] Human Rights Watch (n 18).

[24] ‘Human Rights in Afghanistan, 15 August 2021-15 June 2022’ (UNAMA, July 2022) accessed 15 November 2023.

[25] ‘Situation of Afghan Women – Summary Report of country-wide women’s consultations’ (UN Women, June 2023) accessed 15 November 2023.

[26] Henrietta Fore, ‘Girls Increasingly at Risk of Child Marriage in Afghanistan’ (UNICEF, 12 November 2021) accessed 15 November 2023.

[27] ‘Out of jobs, into poverty – the impact of the ban on Afghan women working in NGOs’ (UN Women, 13 January 2023) accessed 15 November 2023.

[28] ‘Human Rights in Afghanistan’ (n 24).

[29] ‘Justice Denied: An Examination of the Legal and Judicial System in Taliban-Controlled Afghanistan’ (Rawadari, 19 June 2023) accessed 15 November 2023.

[30] Office of the United Nations High Commissioner for Human Rights, ‘Afghan women suffer extreme discrimination, restrictions and violence – Deputy High Commissioner’ (OHCHR, 19 June 2023) accessed 15 November 2023.

[31] Zahra Nader and Nargis Amini, ‘The Taliban Are Harming Afghan Women’s Health’ (Foreign Policy, 2 March 2022) accessed 15 November 2023.

[32] Chantelle Lee, ‘What’s the Status of Healthcare for Women in Afghanistan Under the Taliban?’ (Frontline, 9 August 2022) accessed 15 November 2023.

[33] Zahra Nader, Matin Mehrab, and Mahsa Elham, ‘‘Despair is settling in’: female suicides on rise in Taliban’s Afghanistan’ (Zan Times, 28 August 2023) accessed 15 November 2023.

[34] Human Rights Watch (n 18).

[35] Wahida Amiri, ‘Women Protest and Power: Confronting the Taliban’ (Amnesty International, 7 March 2023) accessed 15 November 2023.

[36] ‘Afghanistan: Women Protesters Detail Taliban Abuse’ (Human Rights Watch, 20 October 2022) accessed 15 November 2023.

[37] United Nations, ‘Convention on the Elimination of All Forms of Discrimination Against Women’ (CEDAW) 1979, Article 7 accessed 15 November 2023.

[38] International Court of Justice, ‘Basis for Jurisdiction’ accessed 15 November 2023.

[39] International Court of Justice, ‘Treaties’ accessed 15 November 2023.

[40] CEDAW (n 37) article 29.

[41] ‘The situation in Afghanistan and its implications for international peace and security – Report of the Secretary-General’ (14 September 2022), paras 3, 15 accessed 15 November 2023.

[42] International Law Commission, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’, Supplement No. 10 (A/56/10), chp.IV.E.1 (November 2001) accessed 15 November 2023. Of note, Afghanistan does not have a government in exile.

[43] ‘Situation of human rights in Afghanistan, Report of the Office of the High Commissioner for Human Rights’ (11 September 2023) para 5 accessed 15 November 2023.

[44] The legitimacy of a de facto government, such as the Taliban, in international legal actions like treaty withdrawal hinges on its recognition by other states and international organisations. Under the ‘principle of continuity of the State’ in international law, a new government inherits its predecessor’s treaty obligations, as the state remains the same legal entity despite changes in governance. For ratifying new treaties or withdrawing from existing ones, a de facto government requires substantial recognition, as highlighted in the Vienna Convention on the Law of Treaties (VCLT)—a codification of customary international law and state practice—which Afghanistan signed in 1969, however, it does not explicitly address the situation of de facto governments, leaving much to state practice and interpretation. The VCLT, particularly Articles 56, 67, and 70, sets out the conditions and procedures for treaty denunciation or withdrawal, necessitating formal written instruments or notifications, signed by recognised high-level state officials. Furthermore, as noted, the Taliban’s attempts to represent Afghanistan in the United Nations and other bodies, have been met with reject, and representatives of the previous Afghan government continue to hold Afghanistan’s seats in most international forums. Where the Taliban has engaged in various domestic and bilateral agreements, have not equated to the formal process of ratifying (or withdrawing) from international treaties under international law. The few courts to consider agreements between states and non-state, armed actors have tended to find them not binding under international law. See Beatrice Walton, ‘The U.S.-Taliban Agreement: Not a Ceasefire, or a Peace Agreement, and Other International Law Issues’, (Just Security, 19 March 2020) accessed 15 November 2023. For instance, the Special Court of Sierra Leone Appeals Chamber held in Prosecutor v. Kallon and Kamara that an agreement between the Government of Sierra Leone and the Revolutionary United Front was not a treaty because it was concluded with a non-state entity. Thus, without widespread recognition, the Taliban authorities lack the authority to withdraw from Afghanistan’s state treaties, including CEDAW, but remain obligated to fulfil their provisions.

[45] Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 449, para. 68; Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33.

[46] CEDAW (n 37) article 2. See also United Nations, ‘Report of the Committee on the Elimination of Discrimination against Women’, 18th-19th sessions, 1998, UN Doc. A/53/38/Rev.1, at p. 49, para. 16 [hereinafter UN, CEDAW Report 18-19]; see alsoPatricia Shulz, Ruth Halperin-Kaddari, Beate Rudolf & Marsha A. Freeman, ‘The UN Convention on the Elimination of All Forms of Discrimination Against Women and its Optional Protocol’ (2d ed 2022), at p. 63 (‘the core goal of the Convention … [is] to eliminate discrimination against women’) [hereinafter Shultz et. al, CEDAW and its Optional Protocol].

[47] The UN General Assembly has deferred deciding whether to accredit the Taliban’s choice of Ambassador to the United Nations, leaving in place the prior Afghanistan administration’s Ambassador; see Michelle Nichols, ‘U.N. shelves bid by Afghan Taliban, Myanmar junta for representation’ (Reuters, 16 December 2022) accessed 15 November 2023.

[48] Catherine Amirfar, Romain Zamour, and Duncan Pickard, ‘Representation of Member States at the United Nations: Recent Challenges’ (2022) 26(6) ASIL Insights accessed 15 November 2023.

[49] Kate Bateman et al, ‘Taliban Seek Recognition, But Offer Few Concessions to International Concerns’ (United States Institute of Peace, 28 September 2021) accessed 15 November 2023; ‘Afghan women ban makes Taliban recognition near ‘impossible’: UN’ Al Jazeera (22 June 2023) accessed 15 November 2023.

[50] Oral arguments, Minutes of the Public sittings held from 18 to 20 March and on 24 May 1980, United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) [1980] ICJ Pleadings 249.

[51] South West Africa (Ethiopia v. South Africa) ICJ accessed 15 November 2023.

[52] South West Africa (Liberia v. South Africa) ICJ accessed 15 November 2023.

[53] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Oral Proceedings, 21 February 2022, CR 2022/1 3.

[54] See eg, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) Order of 19 April 2017, Request for the indication of Provisional Measures, ICJ; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Order of 23 July 2018, Request for the indication of provisional measures of Qatar, ICJ; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Order of 7 December 2021, Request for the indication of provisional measures, ICJ.

[55] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022.

[56] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024.

[57] Matei Alexianu, ‘Provisional, but Not (Always) Pointless: Compliance with ICJ Provisional Measures’ (EJILtalk, 3 November 2023) accessed 15 November 2023.

[58] ICJ, ‘Press Release (No. 2024/14 )Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). Nicaragua requests permission to intervene in the proceedings under Article 62 of the Statute, 8 February 2024’ accessed 8 February 2024.

[59] Maha Abdel Azim, ‘Saving Muslim Women, Scholar Lila Abu-Lughod on the real obstacles facing women in the Islamic World’ (The Cairo Review of Global Affairs, Winter 2016) accessed 27 February 2024.

[60] CEDAW Committee, Information received by the Committee on the Elimination of Discrimination against Women – Afghanistan (22 May 2023): ‘On 30 January, the Committee on the Elimination of Discrimination against Women (CEDAW) received the response from the de facto authorities in Afghanistan to its request dated 27 January 2022, for information on the situation of women and girls in Afghanistan since 15 August 2021’. Online at accessed 15 November 2023; Information sent by the Islamic Emirate of Afghanistan (Ministry of Foreign Affairs Women’s International Affairs and Human Rights Department) accessed 15 November 2023.

[61] ‘Feminist Foreign Policies: An Introduction’ (UN Women, September 2022) accessed 15 November 2023.

[62] Antonia Mulvey and Terry Flyte, ‘Syrian Torture Victims Deserve a Hearing Before the ICJ’ (Just Security, 13 October 2023) accessed 15 November 2023.

[63] Farkhondeh Akbari ‘The Risks Facing Hazaras in Taliban-ruled Afghanistan’ (Nexus, 7 March 2022) accessed 16 November 2023.

[64] ICJ Statute, article 59.

[65] Erlend M Leonhardsen, ‘Trials of Ordeal in the International Court of Justice: Why States Seek Provisional Measures when non-Compliance Is to Be Expected’ (2014) 5 Journal of International Dispute Settlement 306–343.

[66] ‘Developments in Gambia’s Case Against Myanmar at the International Court of Justice, Questions and Answers’ (Human Rights Watch, 14 February 2022) accessed 15 November 2023.

[67] The unrecognised Myanmar junta appears in The Gambia v. Myanmar, yet this has not furthered its recognition as Myanmar’s government. As discussed above, from a strictly legal standpoint, the Taliban’s appearance before the Court would not result in their formal recognition.

[68] For example, the Syrian government did not participate in the oral arguments. See Mulvey and Flyte (n 62).

[69] Syria Justice and Accountability Centre, ‘Q&A: Syria brought to the International Court of Justice’ (Syria Accountability, 20 July 2023) accessed 15 November 2023.

[70] The Democratic Republic of Congo (DRC) attempted to bring a case under CEDAW (among several other conventions) in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), however, the Court found that the DRC never made any attempt to enter into negotiations or undertake arbitration proceedings with Rwanda concerning the application of Article 29 of the Convention, a required prerequisite, nor had it specified which rights protected by that Convention. See Order of 10 July 2002 Request for the Indication of Provisional Measures, para 79.

[71] ‘Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan QC, following the application for an expedited order under article 18(2) seeking authorisation to resume investigations in the Situation in Afghanistan’ (27 September 2021) accessed 15 November 2023.

[72] In recent years, a few universal jurisdiction cases were brought on behalf of Afghan victims of international crimes in the Netherlands and Germany for abuses committed by officials prior to the Taliban’s rise to power in the 1990s. For details, see TRIAL International, ‘Universal Jurisdiction Database’ accessed 15 November 2023.

[73] ‘While the time frame for certain written proceedings may be relatively lengthy in view of the time required by the participating states for the preparation of their pleadings, it should be noted that, on average, despite the complexity of the cases involved, the period between the conclusion of the oral proceedings and the delivery of a judgement by the Court does not exceed six months’. ‘Report of the International Court of Justice 1 August 2022-31 July 2023, General Assembly’ para 11 accessed 15 November 2023.

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