Background
On 14 April 2021, US President Joe Biden announced the withdrawal of all American troops from Afghanistan over the coming months. As per the Agreement for Bringing Peace to Afghanistan, signed between former President Donald Trump and the Taliban, US forces were to be out of Afghanistan by 1 May 2021, thereby ending 18 years of conflict. Inheriting the Peace Deal from President Trump and prioritising the national interest and safety of his military troops, President Biden made this controversial decision. According to President Biden remarked, “American troops cannot and should not be fighting in a war and dying in a war that Afghan forces are not willing to fight for themselves.” Thus, signalling that this long-drawn fight to unite Afghanistan was a lost cause. Consequently, emboldened by the withdrawal of the US troops, the Taliban has taken over control in Afghanistan in a matter of just weeks, reversing the 20 years of growth and progress, at a speed no one could have ever predicted.
Although the Afghan Peace Agreement has been actuated, the question of its legitimacy remains. One of the major drawbacks of the Peace Agreement was that the sitting Afghan government was not a part of the negotiations nor was it a signatory to the final agreement. It was at the insistence of the Taliban that the Afghan government and its representatives were not permitted to participate in the discussions, claiming that the current government in Afghanistan was not a valid government but a ‘puppet’ of the US. Although US Ambassador, Zalmay Khaililzad made an attempt to keep Afghan President, Ashraf Ghani informed and onboard, the Afghan administration became more concerned and disgruntled about being left out of conversations regarding the country’s future.
The power struggle between the Afghan government and the Taliban has persisted over the last 20 years. As the recognised entity, the government of Afghanistan is responsible for defending its territory and providing safety and security to its citizens. However, due to its weak and inefficient governance model, it failed to fulfil its responsibilities and showcase its efficient government leadership, consequently leading to the concentration of power in the hands of the Taliban.
Taliban and Women’s Rights
The state of Afghanistan has fallen into anarchy ever since the Islamist militant group has declared itself victorious after capturing the capital of Kabul and the Presidential Palace as the President of the country, Ashraf Ghani fled. This insurgency has caused chaos and panic among the masses of the nation. Most fear that the Taliban will reimpose their stringent and oppressive Sharia laws and policies that prevailed from 1996 to 2001, and have been desperately attempting to flee.
During its previous rule in the 1990s, the Taliban government had established a Ministry to ensure moral policing. It was called the ‘Ministry for Propagation of Virtue and Prevention of Vice.’ The Ministry’s work focused on imposing a strict interpretation of the Islamic Sharia laws, going as far as conducting public executions for minor offences like theft. Furthermore, strict behavioural codes were imposed on both men and women. Men were compelled to grow beards and women were forced to wear the customary burqa at all times. The Taliban prohibited women and girls’ education past puberty. Women were physically abused and beaten if they were unaccompanied in public places. The media and press were also controlled and run by Taliban. All forms of recreational activities were prohibited. The Taliban were eventually overthrown by the military invasion of US forces in 2001.
However, this time, while reviving the Islamic Emirates of Afghanistan, the Taliban claim to have changed and has promised to rule moderately. In their first press conference since the militant takeover of Afghanistan, the Taliban, through its spokesperson Zabihullah Mujahid, declared amnesty and assured freedom of the press and the rights of women and minorities. They have also assured that they will provide complete security to foreign diplomats and promised not to inflict harm upon them and their properties, including embassies, international organisations, and aid providing agencies. The Taliban further reassured the global community, especially its neighbours, that they intend to respect international boundaries and relations, and wish to receive the same. In response to a journalist’s query about what will be different this time than under their prior control, the Taliban spokesman stated the group now had a different viewpoint- “the philosophy and beliefs are the same since they’re Muslims, there is a difference in terms of experience.”
While the Taliban has promised to have changed its approach, in practice, it continues to inflict torture and kill innocent civilians in the name of Islamic purity. The violence continues despite being warned by both the United Nations, as well as, the US of the potential international isolation and sanctions. The Taliban has not abandoned violence, has not altered its archaic views on justice and women, and continues to provide safe havens to international terrorists. More recently, while setting up its interim government, the Taliban has decided to restore the Ministry for Propagation of Virtue and Prevention of Vice, nearly 20 years after it was abolished by the US, signalling a return to a dark phase for women’s rights. Remarking over its reinstatement and justice dispensation, Taliban spokesperson, Mohammad Yousuf mentioned, “the main purpose is to serve Islam. We will punish as per the Islamic rules.” He further claimed that both the male and female miscreants would be meted out with harsh punishments.
Afghan women’s achievements during the last two decades, notably in education, public employment, and political engagement, are at risk of being redundant. Women in Afghanistan have been subjected to the widespread and systematic violation of their human rights, and a similar future lies ahead under the rule of the Taliban this time as well. The Taliban have released a slew of edicts governing every aspect of women’s participation in both the public and private domains. Women are prohibited from working, appearing in public without a male relative, participating in government or other public debates, or attend co-ed schools and universities along with their male counterparts. The Ministry of Women’s Affairs, a body under the previous Afghan government, was not instituted in the new interim government and none of the cabinet members were women. Such discrimination has the effect of silencing women and robbing them of any power over their lives. These state policies are not one-off instances for Afghan women, rather, discrimination is cumulative and deep-rooted and puts their lives in jeopardy. Women are unable to sustain themselves and their children due to a lack of resources.
Apart from physical abuse, women have also been subjected to sexual violence. Recently, the Taliban leaders in Badakhshan and Takhar provinces issued an order to local religious authorities to supply them with a list of females above the age of 15 and widows under the age of 45 for marriage with Taliban militants. Women and girls will be transported to Waziristan in Pakistan to be re-educated and converted to “true Islam” if these forced marriages take place. This edict has instilled terror in the hearts of women and their families, forcing them to escape and become internally displaced persons, aggravating the already perilous Afghanistan’s humanitarian crisis. In such precarious situations, women are often used as baits to attract men within the ranks of the Taliban. This is not marriage, but sexual slavery. Under the pretext of marriage, forcing women into sexual servitude is both a war crime and a crime against humanity, under Articles 7 and 8 of the Rome Statute of the International Criminal Court (ICC), of which Afghanistan is a party. Furthermore, Resolution 1820, adopted by the UN Security Council in 2008, condemns sexual assault as a military strategy aimed at humiliating, controlling, and terrorising civilians in the community.
As the country attempts to rebuild after decades of war, women are being permitted to enrol in colleges by the Taliban. However, the new rules enforce gender segregation at the country’s universities as co-education is considered ‘un-Islamic’. According to the new Higher Education Minister, female students would be taught by women wherever possible and classrooms would remain separated, in accordance with the Taliban’s interpretation of Islamic sharia law. Classrooms divided by curtains have already been seen in many places since the Western-backed government collapse and the Taliban seized Kabul. The new rules have also made hijab or head covering a compulsory part of the dress code. According to U.N. Secretary-General Antonio Guterres, these are ‘chilling reports’ from the ground and such rules and edicts continue to shock and offend common sensibility and the world.
Human Rights Law and Women’s Rights
While the Taliban has now formed a government, it must be remembered that they are bound by the fundamental principles of international human rights law, particularly the human rights treaties that Afghanistan has signed and ratified. The change in the form of government does not negate international human rights obligations. The right to freedom of expression, association and assembly, the right to employment, the right to education, the right to freedom of travel, and the right to health care are among the rights infringed by the Taliban’s discriminatory policies. The International Covenant on Civil and Political Rights (ICCPR) guarantees the rights to freedom of association, peaceful assembly, and mobility, whereas the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) requires nations to address the obstacles that women, particularly those living in rural regions, experience in exercising their right to equality. Afghanistan is a party to both these international conventions. The Taliban’s ordinances and actions impose an indefinite ban on all forms of association, assembly, and freedom of movement for women, and prohibit women’s public mobility. These are a few of the many examples of state policies that amount to sex-based discrimination and goes against the obligations flowing from both ICCPR and CEDAW.
Similarly, the right to work is protected under the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), as well as, CEDAW. As per these international conventions to which Afghanistan is a party, States are required to respect the right of “everyone to earn a living by employment that he freely chooses or accepts.” Although the Taliban did assure the Afghans and the world that women would enjoy equal rights in accordance with Islam, including the right to work, in practice, their rights have been continually denied. For example, Afghan women working at a bank in Kandahar were asked to leave because their employment was considered inappropriate, and their male relatives were permitted to take their place. Female journalists and News Presenters were no longer permitted to broadcast their programs. These restrictions imposed on women’s right to work are yet another example of state policies amounting to gender-based discrimination that ipso facto violates various international obligations. Enraged by such discrimination and unreasonable restrictions, Afghan women took to the streets to protect their rights.
Everyone has the right to an education, according to the UDHR, ICESCR, CEDAW, and the Convention on the Rights of the Child (CRC), which has been ratified by Afghanistan. Under the ICESCR and the CRC, governments are required to offer universal elementary and secondary education without discrimination based on gender, as well as, equal access to higher education. Furthermore, equal access to healthcare services for women is a crucial component of the right to health recognised by international law. CEDAW ensures that all women, even those living in rural regions, have access to this right. Equal rights to the “best achievable level of bodily and mental health” are also guaranteed under ICESCR.
Women in Afghanistan are not only subjected to discriminatory Taliban regulations but are also subjected to summary physical punishment without the benefit of due process. It must be remembered that States are obligated by international law to prosecute abuses of bodily integrity, as well as, to take steps to safeguard women from gender-based violence and discrimination under the ICCPR. Furthermore, it guarantees the right to be presumed innocent until proven guilty, the right to be notified of the charges, the right to equality and equal treatment before the law, the right to legal assistance, the right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment, the right to remain silent and the right to adequate time and facilities to prepare one’s defence. These obligations must be met and respected.
Afghanistan and the ICC
On 5 March 2020 the Appeals Chamber of the ICC overturned the Pre-Trial Chambers ruling and pronounced a landmark judgement authorising an investigation in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as, other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002. This encompasses alleged crimes committed by the Taliban, Afghan National Security Forces, and US military and CIA personnel. The current ICC Prosecutor, Karim A. A. Khan, in his recent statement, expressed concern regarding the escalating violence in Afghanistan and urged the Taliban to respect Islamic values to establish peace in the country. According to him, the ongoing violence may amount to crimes under the Rome Statute and thus, his Office will continue to monitor the situation. The ICC was established to bring those responsible for “the most serious crimes of concern to the international community as a whole” to justice. Thus, the Court can achieve this goal in Afghanistan by progressing its investigation and sending a message to the Taliban that mass atrocities will not be tolerated and be punishable.
Conclusion
As the Taliban gains power, the future of women’s rights in Afghanistan remains uncertain. Women and girls in Afghanistan have had freedom and independence in the previous 20 years and are now seeking more. Only a global coordinated and monitored review of the situation of Afghanistan and human rights compliance requirements from the Taliban can facilitate an inclusive future for the country. Otherwise, Afghanistan’s women’s future will remain in flux.
Vidya Kakra is a law student at Symbiosis Law School, Noida in India. She is a legal enthusiast and holds a keen inclination towards international human rights law, international humanitarian law, and public policy.