Prosecuting the Taliban Regime’s Violations of CEDAW in Afghanistan: Legal Obstacles

Introduction

In August 2021, the resurgence of the Taliban to power in Afghanistan demonstrated a major setback for women’s rights in the country. It marked a return to a legal, political, and social framework rooted in rigorist Islamism and authoritarianism; suppressing all previously acquired rights. The subsequent outcry of the international community has since died down and its engagement with the Afghan women’s struggle is scarce and marginally mediatised (Abbasi, 2024). Over the course of two years, the Taliban has enforced a regime characterised by systematic oppression, violence, and gender-based discrimination, thus, unabashedly, violating international human rights treaties that Afghanistan has ratified, including the  Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). This article intends to examine the feasibility of initiating legal action against the Taliban regime for its persecution of women  and defiance of international human rights law, as well as to assess legal obstacles to women’s rights within Afghan legislation. This article argues that while engaging in international prosecution poses challenges, it is likely to yield positive outcomes in acknowledging the plight and struggle of the Afghan women. It will further analyse the challenges to achieving gender equality and mitigating discrimination embedded within the Afghan judicial system.

Taliban Rule and the Retreat of Women’s Rights in Afghanistan

UN rapporteurs have repeatedly raised concerns regarding women’s living conditions in Afghanistan, stating that they are forced to live in “prison-like conditions”, and 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” (OHCHR, 2023). The pervasive Taliban edicts led to gender-segregation and a scale of violence against women (VAW) considered to be constitutive of crime against humanity, gender persecution, and gender apartheid, according to the UN Special Rapporteur on Human Rights in Afghanistan, Richard Bennett (UN press, 2022). The Taliban’s implementation of strict Sharia principles have culminated in the gradual disappearance of women from all aspects of public life. Between August 2021 and January 2022, the Taliban regime enacted 80 edicts of which 54 specifically targeted, restricted, or annihilated women’s rights, including bans on women and girls’ access to education, visits to cemeteries, access to sport or certain jobs, and an obligation to wear the islamic veil or the burqa. Furthermore, according to the World Health Organisation,  prior to the Taliban’s return to power, “almost 90% of women in Afghanistan had experienced at least one form of domestic violence, 17% had experienced sexual violence, and 52% had experienced physical violence” with levels of VAW drastically increasing from January 2021 (WHO, 2025).

Legal Implications and Challenges of Prosecuting the Taliban at the ICJ

The unprecedented scale and severity of women’s rights violations in Afghanistan call for concrete measures to be taken. Legal experts are increasingly advocating that bringing the Taliban regime before the International Criminal Court of Justice (ICJ) for their violations of CEDAW  would set an important precedent in upholding women’s rights. Indeed, to this day, despite widespread international condemnation of the persecution, no legal measures have been pursued to safeguard the rights of women and girls in the country (Abbasi, 2024).

Taking the case to the ICJ could potentially offer a solution that has yet to be examined to provide Afghan women with justice and accountability. Provisions in  CEDAW, the

International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Geneva Conventions among others, could  provide the protection and advancement of women’s fundamental rights and needs as well as reiterate third party states’ obligations under International Humanitarian Law (IHL) to investigate and prosecute  gender-based violations of IHL.

As Afghanistan has ratified CEDAW in 2003, and is a United Nations member, it offers a solid basis on which to build the ICJ case. Indeed, both legally binding texts mandate states and international institutions to prevent, protect, and prosecute any violation of the aforementioned conventions. Furthermore, UNSC Resolution 1325, pertaining to the importance of including women in all aspects of conflict resolution processes, “calls upon all parties to armed conflict to respect fully international law applicable to the rights and protection of women and girls under the relevant conventions and to “bear in mind the relevant provisions of the Rome Statute of the International Criminal Court” (UNSCR 1325).  It further calls upon all states to “take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict” (UNSCR 1325). The Taliban’s commitment to CEDAW’s principles, as well as UN membership, requires Afghanistan to guarantee equal rights and legal protection for women and girls. Due to their complete disregard for international obligations, they are consequently liable in front of international jurisdictions and can be prosecuted for their transgressions. Article 29 of the CEDAW provides for disputes “concerning the interpretation or application” of the Convention to be submitted to arbitration by the ICJ, thereby giving the Court jurisdiction over the Afghan case.

Any third-party country that has ratified the CEDAW and accepted the competence clause under Article 29 may initiate proceedings against Afghanistan before the International Court of Justice. The process is long as the ICJ’s arbitration can only be used as a last resort. A country or group of countries intending to bring a case against Afghanistan before the ICJ must formally notify the Afghan authorities. This act and the silence or disagreement of Afghanistan establishes a “dispute” between both parties. If no direct resolution is achieved, the dispute must proceed to arbitration. Should all attempts at arbitration fail, the case may then be brought before the International Court of Justice (ICJ) (Justice Initiative, 2004).

Investigations are a difficult matter as the widespread insecurity, constant threats, and intimidation targeting critics of the regime make Afghanistan a particularly hostile political landscape in which to gather evidence. Furthermore, the belief that an ICJ ruling will radically change the course of the Taliban’s policy regarding women’s rights is optimistic at best. However, the Court’s ability to enact provisional measures could lead to a more rapid outcome than traditional criminal investigations and prosecutions. Such a case could bolster additional efforts such as creating precedent for the long overdue recognition of gender apartheid as a crime against humanity. It could further provide for a wider recognition of gender as the sole criterion for asylum eligibility and thwart the Taliban’s pursuit of international recognition.  In broader terms, the filing of a case under the ICJ’s jurisdiction with regards to the Afghan regime, could aim at promoting accountability and justice at an international level in an attempt to use all available legal proceedings available in order to seek redress for the inhuman and degrading treatment endured by women in the country.

Analysing Legal Obstacles to Women’s Rights in the Afghan Judicial System

Although the Taliban regime’s rule and their deliberate and systematic targeting of women’s rights have obliterated what remained of Afghan women’s freedoms, significant obstacles to promoting women’s rights are also deeply embedded within the country’s legal framework. The contradictory nature of the Afghan judicial system is a colossal obstacle to achieving gender equality. Afghanistan’s current legal landscape includes three incoherent and contradictory sources of law: the state legal code, customary practices, and Islamic Sharia law which constitute weak regulatory frameworks towards women.

Indeed, Article 22 of the 2004 Constitution provides that “any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden” and that “the citizens of Afghanistan, man and woman, have equal rights and duties before the law”. However, no explicit prohibition of discrimination on the basis of gender or sex is present. Article 7 stipulates that “the state shall observe the United Nations Charter, inter-state agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights”. Nevertheless, women and girl’s systematic discrimination is deeply rooted in other sources of Afghan law such as legal provisions in the Civil Code and in the Shia Personal Status Law (SPSL) with regards to marriage, family relations, and personal freedom (CEDAW, 2020).

For instance, Article 86 of the Civil Code and Article 91 of the SPSL allows Sunni and Shia men to take up to four wives at one time. On matters pertaining to marriage, Article 71(1) of the Civil Code and Articles 99(2) and 99(3) of the PSL establish the legal marriage age for girls as being under fifteen. Articles 71(1), 252, 256, and 268 of the Civil Code, along with Article 45 of the SPSL, prioritise the father in matters of child guardianship. Both texts further participate in institutionalising women’s dependency upon their partner as well as the precariousness of their social roles. Indeed, as per Articles 135 to 145 of the Civil Code and Articles 158 to 161 of the SPSL, a husband can repudiate his wife unilaterally and without justification while a wife has to resort to a judicial divorce, which is granted only on specific grounds for which she bears the burden of proof. Under the SPSL, a woman’s entitlement to her husband’s maintenance is contingent upon her obedience. Under Article 177 Inequalities in matters of child guardianship, inheritance, marriage, divorce, and personal freedom are further enshrined in the Afghan Constitution which contradicts the principles upheld in CEDAW. Moreover, Article 3 invalidates any provisions aimed at protecting fundamental rights, stating that “no law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan”. This article alone entails that Sharia principles take precedence over all other forms of legislations which further impedes the national judiciary’s ability to reference international legislation, such as CEDAW. The subordination of constitutional guarantees to Sharia law, ergo the Taliban’s ideological stance, stands in stark contradiction with the progressive legal framework envisioned by international conventions for the protection of women’s rights.

Beyond legal provisions in various texts, complications arise from the existence of multiple judiciary bodies with a formal and informal systems for the administration of justice entering in contradiction. Dismissing ordinary courts, most cases of VAW, discrimination, or societal affairs are adjudicated by jirgas and shuras, which are traditional customary justice systems or local assemblies often regrouping elders or religious leaders. This is particularly true in rural areas where women’s access to judicial institutions is particularly limited (CEDAW, 2020). Informal justice mechanisms allow for a significant divergence from Constitutional law which is open for interpretation depending on the judge’s own perception of Islamic law or of customary law, often particularly detrimental to women’s rights.

Conclusion

Initiating a case under CEDAW at the ICJ would represent a significant milestone, marking the Court’s first-ever review of the leading global treaty on women’s rights. Women in Afghanistan have repeatedly and bravely challenged the status quo and Taliban authoritarianism while countless Afghan women refugees have advocated for their female counterparts remaining in Afghanistan. Too often, the struggles and resilience of Afghan women are overshadowed by the broader political and military context in the region.

Legal action provides a formal and powerful platform for these women to share their experiences and demand justice. So far, however, the protests have failed to prompt a strong enough reaction from the international community to trigger international legal mechanisms to improve  accountability and tackle the impunity responsible for the ongoing deterioration of women’s rights in Afghanistan. The ICJ is not only a platform that could allow for measures to be taken and implemented to protect women’s rights but is also a robust advocacy framework that would allow Afghan women to be heard. The prosecution of the Taliban regime establishes accountability for the systematic oppression and abuse of women, signalling to the Taliban and other oppressive regimes that such actions will not go unchecked. Filing a case at the ICJ sends a strong message that the international community doesn’t only condemn but is willing and determined to follow all the potential legal paths to thwart the egregious violations of their rights suffered by women across Afghanistan.

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