The International Court of Justice’s Involvement in Gender Discrimination in Afghanistan

By: Ameera Hamadeh

Edited by: Clark mahoney and Elissa Rizzo

On September 25th, 2024, Canada, Germany, Australia, and the Netherlands declared their formal plans to call upon Afghanistan in efforts to immediately dismantle their violations of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). [1] The agreement is the product of over thirty years of work done by the United Nations Commission on the Status of Women to advance the position of females in newly developed countries. Its contents include a global bill of rights excluding all forms of gender discrimination, and an agenda countries can adopt to take action against female injustice. [2] By announcing their concern, these four nations take the first step towards filing a case with the United Nation’s premiere judicial body, the International Court of Justice (ICJ). However, the implications of a court ruling against gender discriminatory actions have remained ambiguous. [3]      

Since its emergence in 1994, the Taliban, an Afghan militant group, has prevented women from exercising fundamental societal rights. Women have been restricted from going to school or pursuing independent study, working, receiving healthcare from men, and leaving the house without a male chaperone. From a societal lens, “women were essentially invisible in public life, imprisoned in their homes” and unable to escape the regime in fear of strict consequences. [4] Today, the Taliban’s levels of discrimination have been classified as “gender persecution” and a “crime against humanity.” [5] As a result, over twenty nations have stated that they do not recognize the Taliban as the formal political leaders of Afghanistan. [6]

Once filed, the case against the Taliban’s leadership will follow the ICJ’s common advisory procedure, a process which may take up to several years to complete. Though the court’s official verdict is important to global humanitarian justice, advisory opinions made by the court are only “consultative in character and are, therefore, not binding as such on the requesting bodies.” [7] As a judicial organization, the ICJ retains no enforcement body to implement their rulings. Instead, the court relies on cooperation from other United Nations states to get the designated entity to adhere to national law. This structure makes it challenging to resolve female subordination in Afghanistan, as the Taliban maintains reign throughout the Afghan state and typically refuses to engage with the international council on human rights issues. [8]

However, a case in alignment with the concerns of these four nations still seems to have indirect, yet imperative, consequences for Afghanistan’s global affairs. Any association with the ICJ will likely coax peer countries towards refusing to recognize the Taliban as a legitimate governing body. A ruling against Afghanistan would make companies less likely to carry out business with the regime due to illegitimacy. Corporations would view business relations with the nation as a scandal that “would tarnish the entire supply chain.” [9] The female discrimination which the Taliban has perpetuated for the past thirty years will not persist without challenge. There are several negative implications for the future of the regime, which work to promote justice and prosperity for women living under these oppressive circumstances.

Notes:

1. Ochab, Ewelina U.“The Taliban To Be Taken Before The International Court Of Justice.” Forbes, 24 Sept. 2024. www.forbes.com/sites/ewelinaochab/2024/09/26/the-taliban-to-be-taken-before -the-international-court-of-justice/.

2. UnitedNationsGeneralAssembly.“Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979.” United States Office of the High Commissioner, December 18, 1979. https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-eli mination-all-forms-discrimination-against-women.

3. Ochab, Ewelina U.“The Taliban To Be Taken Before The International Court Of Justice.” Forbes, 24 Sept. 2024. www.forbes.com/sites/ewelinaochab/2024/09/26/the-taliban-to-be-taken-before -the-international-court-of-justice/.

4. “Women in Afghanistan: The Back Story.” Amnesty International. https://www.amnesty.org.uk/womens-rights-afghanistan-history. 

5. Ibid 

6. “Taliban Who Banned Women from Public Spaces Say No One Faces Discrimination in Afghanistan.” The Associate Press, September 26, 2024. https://apnews.com/article/afghanistan-taliban-women-legal-rights-gender-discr imination-93f88c497d9851059361fbc83ab8d20d.

7. Couvreur, Philippe.“Upholding the Rule of Law at the International Level: The Role of the International Court of Justice.” United Nations: UN Chronicle, December 31, 2012. https://www.un.org/en/chronicle/article/upholding-rule-law-international-level-rol e-international-court-justice.

8. Ochab, Ewelina U.“The Taliban To Be Taken Before The International Court Of Justice.” Forbes, 24 Sept. 2024. www.forbes.com/sites/ewelinaochab/2024/09/26/the-taliban-to-be-taken-before -the-international-court-of-justice/.

9. Alice Johnson.“Afghanistan: Potential ICJ Case a Step towards Justice for Afghan Women.” International Bar Association, October 24, 2024. https://www.ibanet.org/afghanistan-icj#:~:text=The%20action%2C%20which% 20is%20supported,authorities%20seized%20power%20in%202021.

Bibliography:

Alice Johnson. “Afghanistan: Potential ICJ Case a Step towards Justice for Afghan Women.” International Bar Association, October 24, 2024. https://www.ibanet.org/afghanistan-icj#:~:text=The%20action%2C%20which%20is%20supporte d,authorities%20seized%20power%20in%202021.

Couvreur, Philippe. “Upholding the Rule of Law at the International Level: The Role of the International Court of Justice.” United Nations: UN Chronicle, December 31, 2012. https://www.un.org/en/chronicle/article/upholding-rule-law-international-level-role-international- court-justice.

Ochab, Ewelina U. “The Taliban To Be Taken Before The International Court Of Justice.” Forbes, 24 Sept. 2024. www.forbes.com/sites/ewelinaochab/2024/09/26/the-taliban-to-be-taken-before-the-international -court-of-justice/ .

“Taliban Who Banned Women from Public Spaces Say No One Faces Discrimination in Afghanistan.” The Associate Press, September 26, 2024. https://apnews.com/article/afghanistan-taliban-women-legal-rights-gender-discrimination-93f88c 497d9851059361fbc83ab8d20d.

United Nations General Assembly. “Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979.” United States Office of the High Commissioner, December 18, 1979. https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-elimination-all-forms -discrimination-against-women.

“Women in Afghanistan: The Back Story.” Amnesty International. https://www.amnesty.org.uk/womens-rights-afghanistan-history.