The Taliban To Be Taken Before The International Court Of Justice
On September 25, 2024, Australia, Canada, Germany, and the Kingdom of the Netherlands announced that they had formally taken steps to call on Afghanistan to cease its violations of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). This is the first and key step before officially filing proceedings with the International Court of Justice (ICJ), the principal judicial organ of the United Nations. The ICJ has a twofold role: to settle, in accordance with international law, legal disputes submitted to it by States (contentious cases) and to give advisory opinions (advisory procedures) on legal questions referred to it by duly authorized United Nations organs and specialized agencies. The four countries called upon Afghanistan and the Taliban de facto authorities to immediately cease their violations of the human rights of women and girls and to answer the request for dialogue to address the concerns of the international community on this matter.
The announcement is the first step towards engaging the ICJ. Article 29 of CEDAW prescribes that any dispute between States Parties concerning the interpretation or application of CEDAW, which is not settled by negotiation shall, at their request, be submitted to arbitration. If within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, the parties may refer the dispute to the ICJ.
If the case proceeds before the ICJ, Afghanistan will become the first country to be summoned to the international court for discriminating against women.
Commenting on the initiative, the Australian Government published a statement emphasizing that: “This action is without prejudice to our firm position that we do not politically recognize the Taliban de facto authorities as the legitimate representation of the Afghan population. Afghanistan’s failure to fulfill its human rights treaty obligations is a key obstacle to normalization of relations. However, we stress that the Taliban de facto authorities remain responsible to uphold and fulfill the international legal obligations of Afghanistan, including on the elimination of discrimination of women and girls under CEDAW.”
As explained by Human Rights Watch, bringing these proceedings before the ICJ will not normalize the recognition of the Taliban as the legitimate government 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. 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.”
Commenting on the announcement, Dutch Minister of Foreign Affairs Caspar Veldkamp stated: “The situation of Afghan women and girls is heartbreaking. They are almost entirely excluded from public life. We cannot accept this. That’s why the Netherlands, Canada, Germany, and Australia are holding Afghanistan accountable for violations of the Women’s Convention. By holding Afghanistan to account, we aim to end the horrific laws and practices that restrict the rights of the female population.”
German Foreign Minister Annalena Baerbock added: “Making use of the possibilities of the women’s rights convention will not change the situation in Afghanistan today. But it gives the women of Afghanistan hope. We see you, we hear you. We speak for you when you are silenced.”
The dire situation of women and girls in Afghanistan, referred to as gender apartheid, requires the international community to use all means reasonably available to them to stop the oppression of women and girls in the country. Australia, Canada, Germany, and the Kingdom of the Netherlands must be commended on their leadership in taking this important step towards justice and accountability.