Acknowledgments
This paper was authored by Natasha Arnpriester, Manuela Londoño, Mariana Pena, Genevieve Quinn, and Duru Yavan, with editorial review and contributions by James Goldston and Omar Waraich. The selected questions and answers were developed through consultations with Afghan civil society, international partners, legal experts, and the vital collaboration of Rawadari, an Afghan human rights organization and a key partner in advocacy and consultations for an ICJ CEDAW case.
Additional contributions to the preparation of this case were made by colleagues from the Open Society Justice Initiative and Open Society Foundations, including those above, as well as Betsy Apple, Zsanett Borsos, Georgiana Epure, Shehryar Fazli, Sana Ghouse, May-Lin Lecomte, Sophie Li, Peyman Majidi, Diana Romina Puerto Michaut, Ashrakat Mohammed, and Beini Ye.
Summary
“[N]owhere 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.” Report of the UN Special Rapporteur on the situation of human rights in Afghanistan and the UN Working Group on discrimination against women and girls. Despite international condemnation of the Taliban’s oppressive actions, no legal action has been pursued to restore the human rights of Afghan women and girls. Instead, the Taliban continue to escalate their repression.
A growing coalition of Afghan women, UN mandate holders, legal experts, civil society, and activists have urged countries to bring a case against Afghanistan before the International Court of Justice (ICJ) for violations of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which Afghanistan is a party. In September 2024, Australia, Canada, Germany, and The Netherlands announced preliminary steps toward this path to accountability, but an official case has not yet been filed.
The ICJ is increasingly recognized as a vital venue for addressing state responsibility for severe human rights violations. Recent decisions by the ICJ in conflicts like Gaza, Ukraine, and Myanmar underscore the opportunity for the international community to engage the Court on the dire situation of Afghan women and girls under the Taliban regime. Nevertheless, there is uncertainty and misunderstanding regarding potential proceedings before the ICJ.
In response to inquiries from a diverse group of stakeholders, below is a set of 29 frequently asked questions addressing the feasibility and implications of initiating a case before the ICJ on Afghan women’s and girls’ rights. These questions explore the ICJ’s role relative to the International Criminal Court, the steps for a potential case, the concern of legitimacy and recognition of the Taliban, the role of Afghan civil society, and possible outcomes. This Q&A also highlights how ICJ litigation could support Afghans through possible legal rulings, bolstering advocacy efforts, influencing international relations, and offering other practical benefits.
- What is the International Court of Justice?
- What is the difference between the ICJ and the International Criminal Court (ICC)?
- Why can Afghanistan be brought before the ICJ for violations of women’s and girls’ rights?
- Who can bring the case under CEDAW against Afghanistan before the ICJ?
- Who exactly would be sued: the State of Afghanistan or the Taliban?
- Who will represent Afghanistan before the International Court of Justice?
- Would a case against Afghanistan before the ICJ require or result in recognition of the Taliban?
- Even if an ICJ case against Afghanistan doesn’t require or result in recognition,
- could it help legitimize the Taliban?
- What are the steps for initiating an ICJ case against Afghanistan?
- What does it mean that countries must “negotiate” before bringing a case to the ICJ?
- What can the ICJ order against Afghanistan?
- How long will the case take?
- Will filing a case against Afghanistan have any immediate impact?
- Are ICJ orders legally binding?
- What happens if Afghanistan does not comply with an ICJ ruling?
- How could an ICJ case help Afghan women, especially if a decision is not directlyenforced?
- What are the risks of bringing an ICJ case?
- Can the Taliban withdraw Afghanistan from CEDAW?
- How can an ICJ case affect other accountability and justice mechanisms?
- How might an ICJ case reinforce efforts to codify “gender apartheid”?
- Why bring a case under CEDAW to the ICJ instead of the CEDAW Committee?
- Is it possible to bring a case to the ICJ under other human rights treaties that Afghanistan is violating?
- Why use resources on an ICJ case versus other avenues?
- Can, or must, Afghan civil society play a role in an ICJ case against Afghanistan?
- Can Afghan individuals submit evidence to the Court?
- What does it mean that Australia, Canada, Germany, and The Netherlands initiated the dispute process under CEDAW against Afghanistan?
- Can other countries join Australia, Canada, Germany, and The Netherlands in their CEDAW dispute against Afghanistan?
- Can countries that are not parties to CEDAW or that have not accepted the ICJ’s jurisdiction support the case?
- What is the role of Open Society and Rawadari in the proposed case?
Produced by OSF in collaboration with Rawadari.
