By Hawa Jawadi
The unequal fight of women in Afghanistan against the Taliban has finally found a somewhat clearer path. Justice, that has painfully been denied these women for years, has finally begun to open up in the corridors of international courts and tribunals.
A long-overdue campaign initiated by four major countries, with support from other nations rapidly expanding, is underway to hold the Taliban to account for their crimes against women in the Hague’s International Court of Justice.
But the road ahead is long.
A 1979 convention to guide the way
The legal basis for the case against Taliban misogyny is the “Convention on the elimination of all forms of discrimination against women.”
This convention, adopted 18 December 1979, consists of 30 articles. Afghanistan ratified this convention in 2003 and officially became a member.
However, since the Taliban seized power in 2021, the group has taken Afghanistan on a path that completely contradicts this convention.
Article 2, for example, obliges states to take immediate action to eliminate all forms of discrimination against women. The Taliban has instead institutionalised it.
The convention also includes:
- Incorporating the principle of equality between women and men into the constitution and other domestic laws and ensuring its implementation.
- Adopting legal means and other measures, including establishing enforcement mechanisms to prevent discrimination against women.
- Legal protection of women’s rights based on equality with men, ensuring effective protection for women against any form of discrimination through competent courts.
- Refraining from any discriminatory actions against women and ensuring that public authorities and institutions act in accordance with this commitment.
The Taliban has instead introduced decree after decree dismantling any equality between men and women and removing all supports for women seeking justice or protection from discrimination and violence.
Nearly 100 directives issued by Taliban supreme leader Mullah Hibatullah Akhundzada and more from the Ministry of the Propagation of Virtue and Prevention of Vice demonstrate the group’s policies run completely at odds with the Convention.
Under Article 17, there’s an executive committee for the elimination of discrimination against women within the United Nations. The role of the committee is to examine violations of the convention’s provisions by member states, document, and report on the implementation of the convention.
This committee is crucial in the case of referring the Taliban to the court. It must provide documentation of its crimes to the court, and based on that, the court can take action by appointing a prosecutor.
Dehumanization and discrimination are not synonymous
But the question remains: could this case against Taliban misogyny in the International Court of Justice put an end to the systemic discrimination of women in Afghanistan?
The case is unlikely to yield any immediate changes for women. But it will likely increase challenges for the Taliban in international relations and complicate the group’s efforts to be recognized as a legitimate government both regionally and globally.
But the real weakness in the case against the Taliban is that it misses the mark of what is at stake. What needs to be properly recognized is not that there is discrimination against women but rather that the Taliban’s policies are aimed at the dehumanization women. Its collective decrees are effectively the elimination of women’s human identity.
If the Taliban’s misogyny is examined within the framework of existing legal structures of discrimination, the consequences of such a case are limited.
Complete dehumanization is not the same level as violating a person’s rights. You need to have your humanity recognized for there to be any meaning to having your rights violated. Under Taliban law, women’s humanity is denied to reduce them to mere objects and usefulness to men.
What is unfolding in Afghanistan under the Taliban is unique and exceptional. Existing legal frameworks, while capable of addressing some aspects of this tragic situation, do not penetrate or address its depth and essence.
To combat this utter dehumanization of women, it’s not enough to simply re-introduce some of the rights the Taliban has removed. It is, rather, going to take an exceptional situation that requires a special legal framework — one that addresses the nature of the current situation and establishes a legal structure with effective enforcement mechanisms.
It wouldn’t be the first time such an exception has been recognized.
The precedent of racial apartheid
It’s been previously experienced in the case of “racial apartheid” in South Africa. Recognizing racial apartheid as a crime against humanity was part of acknowledging the exceptional status of South Africa — a situation in which the process of “dehumanization of Black people” was ongoing.
It was a unique situation that existing international legal frameworks were found insufficient to recognize, define, and address it.
Recognizing “gender apartheid” as a “crime against humanity” is similarly the only proper and systematic way to combat this trend. Incorporating “gender apartheid” into international law provides a fundamental basis for fighting this process and strengthens the struggle for defending women’s human equality with solid legal frameworks and strong enforcement guarantees.
Referring the Taliban case to the International Court of Justice is a very important, but ultimately minimal step toward restoring the rights of women.
The key issue is to halt the dehumanization of women. Achieving this goal requires defining a special and distinct legal framework to demonstrate that the current situation in Afghanistan goes beyond mere discrimination.
The Taliban undeniably poses an existential threat to women, denying and rejecting their human identity. What was once understood to be a given – that women were human with all the rights that are afforded to men, now somehow has to be proven to the Taliban and their supporters.
Do not underestimate the Taliban lobbyists
It is simplistic to assume that the Taliban are unaware of the consequences of their misogynistic measures. The past three years since they regained power in Afghanistan have been an effective trial period for this group that has shown just how much the world underestimated them.
The soft stance of the United Nations has seen aid to the Taliban continue, and the close relationships of regional countries with the extremists have reinforced the belief among its supporters that while misogyny has some consequences, it does not jeopardize their power and control over Afghanistan. No doubt in the Taliban’s strategic calculations, the consequences they have faced so far are manageable.
From a Taliban perspective, the main knot in global relations lies with the United States.
Now that the Taliban case is set to be referred to the court, this group will likely mobilize its effective lobbyists in the corridors of global power. The focus will be on the U.S. and European countries.
The Taliban use the presence of terrorist groups in Afghanistan as a bargaining tool, attempting to intimidate the West with the threat of terrorism to pressure these countries into softening their stance on their misogynistic policies.
Therefore, it is crucial for activists, women’s rights organizations, and countries advocating for the prosecution of the Taliban to work in coordination, unity, and focus, ensuring that the experience of the Doha negotiations and the false narrative about the Taliban are not accepted by Western politicians.
Now that the struggle of women against the Taliban has entered a new phase, women in general, and Afghan women in particular, must demonstrate their ability to defend their rights, human identity, and fight for justice.
In the long run, the victory of Afghan women in this struggle will inspire the world and elevate women’s fights for human equality beyond the borders of Afghanistan. But it requires sustained, coordinated, and cohesive efforts.
