In 2021, after the withdrawal of US troops from Afghanistan[i], the Taliban regained control of the country within 10 days.[ii] Today, the women in Afghanistan endure the most recent phase of a decades-long war waged against them by the Taliban regime. Often discussed yet rarely consulted, Afghan women have proven powerful and resilient in the face of oppression. In the hopes of shedding light on the realities of life for Afghan women, I sat down for a discussion with exiled Judge (Qazi) Marzia Babakarkhail, who fled Afghanistan under the previous Taliban regime. As one of only 22 female judges in Afghanistan during the 1990s, and a prominent women’s rights activist, Marzia provided a nuanced insight into how the legal system in Afghanistan has historically operated to undermine and suppress women, from the perspective of predominantly marriage and family law.
Tracing the relationship between women and justice in Afghanistan from the 1990s to today, we discussed the enduring legal challenges facing Afghan women, the Taliban’s recent targeting of female judges, and how the current Western aid frameworks are failing to protect them.
Women and Justice in Afghanistan in the 1990s
When I started working at the Family Court, things were different. The law was abrasive to women.
The Taliban’s flippant treatment of women within the legal system is not a new phenomenon for Afghanistan. Recounting her time as a judge in Afghanistan between 1990-1997, Marzia explained how the road to achieving justice for women in Afghanistan has proven a long and treacherous journey.
When Marzia decided to undertake a career in the legal sector, she left her liberal family in Pul-i-Khamri to enter the Sharia department at Kabul University. “The initial judiciary training was fantastic”, Marzia recalled. Throughout her training, men and women operated on equal footing, and Marzia was reassured by the prospect that the law would treat everyone equally. Having been raised by a liberal father and a head-strong mother, this gender dynamic was something she had come to expect. During her time working in the Family Courts, however, “things were different” she explained, “the law was abrasive to women”.
Marzia recounted one case which left a harrowing impression on her psyche. One day, a young woman came to the Family Court, entangled in an adultery case. “She wanted to have a child”, Marzia explained, “But due to a medical issue she was unable to conceive”. To try and solve her problem, the woman had gone to the village Mullah, a local religious leader, for help. Instead of helping her, the Mullah held the woman in his house and sexually abused her. When her husband discovered this, the woman was accused of adultery, and a case was compiled against her.
“This opened my eyes”, Marzia declared. Marzia could not believe that the legal system operated to punish female victims rather than defend and support them. Determined to help alleviate the strain that an unjust legal system left on the women in her community, Marzia was inspired to create a small shelter at her parents’ farm to provide refuge to women who were divorced or subjected to abuse from their husbands. In 1993, Marzia filed for aid from international NGOs and established her work more officially, as the Afghan Women’s Cultural Association.
After years of instability and civil war, the Taliban regime rose to power in Afghanistan in 1996 and began to codify its ‘war on women’.[iii] During this period, the Taliban enforced a stricter, ‘pure’ Islamic order onto the Afghan legal system, which further restricted and marginalised women from society, banning them from participation in education and corporate sectors.[iv][v] For her work supporting divorced and abused women, Marzia was targeted by Taliban security officials. After surviving multiple assassination attempts, she was able to flee to England, where she resides today. The turmoil and suffering which accompanied this period of Taliban rule, particularly for women, was met with global outrage and triggered an international response, culminating in the 2001 US-led invasion of Afghanistan.[vi]
The Justice System and Women Post-2001
It was a golden time for women in Afghanistan: legally, professionally, and personally.
Marzia reflected on the changes that were brought about for women in Afghanistan after the Taliban were ousted from power in 2001.[vii] Referencing the introduction of the Elimination of Violence Against Women Act (EVAW) of 2009 [viii], she declared that “this was a golden time for Afghanistan”. This groundbreaking law introduced the classifications of rape, harassment, and abuse within the confines of marriage as prosecutable offences in Afghanistan.[ix] In tandem with the legislation, the government constructed specialised police units and female-led courts to carry out and enforce the EVAW act.[x]
Despite the criticisms surrounding the effectiveness of this law in public discourse[xi], Marzia highlighted the precedent it set for the treatment of women in the country. Comparing the legal environment during this time to her earlier experiences in the Family Courts of the early 1990s, she explained “it was harder to get away with treating women poorly, there was now a law to protect them”. During this time, many women’s shelters and organisations dedicated to the provision of women’s rights and education were erected.[xii]
Out from under the Taliban’s thumb, and emboldened by the implementation of more progressive legislation, women were able to shine during this period, Marzia explained. “Girls were educated, they could apply for PhDs, and the law protected them from abuse.” She assessed that the hardship endured during the Taliban’s control inspired a particularly vivacious determination in the women of this time, who tackled the new, liberated, Afghanistan with a newfound strength. “It was a golden time for women in Afghanistan”, Marzia remembered, “legally, professionally, and personally”.
Now is the darkest time for women in Afghanistan.
Since the Taliban’s takeover in 2021, progress which took two decades to build, has crumbled in a tenth of the time. According to Marzia, days into their official re-establishment, “[The Taliban] announced the removal of all female judges from the legal system. They removed their salaries and froze their accounts”[xiii]. Swiftly after, the Taliban proceeded to close all of the Elimination of Violence Against Women Courts across the country. “That is proof that the Taliban’s war is against women”, Marzia insisted. As a result, Afghanistan’s female judges have been ejected from the system, left with no money, no livelihood, and no means of escape.
Acknowledging the high level of international attention that the Taliban’s exclusion of women from education has received by the international community[xiv], Marzia explained that women’s rights have been retracted in many other areas. In reference to marriage law specifically, Marzia noted that despite the Taliban’s attempts to appear to promote women’s autonomy by banning forced marriages[xv], the regime has begun imposing legislation to actively restrict women’s marriage rights. She explained that, earlier this year, the Taliban forces imposed a ban on women seeking separation and refused to acknowledge the validity of divorces filed under the previous government.[xvi] This change in marriage law specifically targets women who had sought out divorce in the context of abuse or drug addiction, considered by the Taliban to be ‘one-sided divorces’.[xvii]
To enforce this retroactive denial of divorce, the Taliban have begun removing divorced women from their homes and forcing them to return to the homes of their ex-husbands[xviii]. “In Sharia Law, this is Haram”, Marzia explained, meaning that this is illegal within the laws of Islam[xix]. In a Muslim-majority country like Afghanistan, this manipulated interpretation of Islamic law challenges not only the rights of these women, but the sanctity of their faith.
Marzia held a pessimistic outlook on the future for women under the Taliban regime. In 2023, women who were forged during the post-2001 era are being targeted and forced to flee, hunted by the Taliban for the freedoms they represent. Whilst the Taliban wages a war against all women, female judges specifically are being actively targeted[xx] and killed[xxi]. Marzia couldn’t help but be reminded of her own experience being forced to flee Afghanistan after the Taliban targeted her for her work as a female judge. With a sense of helplessness, Marzia asserted that “now is the darkest time for women in Afghanistan”.
Limitations of Western Aid
Today, the women who have spent their careers fighting for justice for others, are begging for justice themselves.
In Marzia’s eyes, the international response to the crisis in Afghanistan has fallen short when it comes to tangible aid, particularly for the targeted female judges. Various Western governments such as Germany[xxi], the UK[xxii] [xxiii] and Australia[xxiv] have taken steps to help with the rescuing and settlement of the female Afghan judges by providing emergency visas and asylum. However, Marzia voiced her concerns over the length of these processes, stating that over 18 female judges known to her have filed for refuge, and have been waiting over a year for a decision. Under the Taliban regime, these women may not have a year to wait. Whilst these initiatives provide a welcome refuge for the women of Afghanistan in the long-term, the wait-time means that, in practice, they do little to protect these women in the short-term.
To secure more immediate aid for the female judges who remain trapped in Afghanistan, Marzia spoke to various international aid agencies, but has struggled to obtain funding to support these women. Referencing the UN’s current funding package, Marzia explained how the existing framework for eligibility excludes the Afghan judges from aid entitlement. The fund is set up to provide emergency relocation costs, security, and legal assistance to women under serious threat because of their commitments to human rights and peace.[xxv] However, the judges have been advised that they are ineligible, as their status as official court judges means that they do not, under the existing framework, qualify as independent ‘human rights activists’. “If the judges are not activists, why were they targeted?” Marzia asks, “they may not work for NGOs, but they work hard for justice in their country”. This brings into question the parameters of the existing framework and its limitations in addressing imminent and legitimate threats to women’s safety in its current form.
In the absence of external aid, Marzia has set up an online petition to engender support and help the female judges trapped in Afghanistan to escape persecution through evacuation and resettlement.[xxvi] Emphasising the impact of using social media to spread awareness for the challenges facing Afghan women, she asked “if I don’t cry, how can you know to offer your hand?” With her petition having amassed over 50,000 signatures so far, it appears that her plea is being heard.
Ultimately, Marzia hopes that the petition will encourage Western governments and international organisations to do more to alleviate the immediate threats to women posed by the Taliban and take a more active role in the protection and resettlement of the female judges at risk in Afghanistan. As a concluding remark, she declared that “today, the women who have spent their careers fighting for justice for others, are begging for justice themselves”. For the women who have dedicated their lives to the facilitation of justice and navigated a biased legal system historically conditioned to suppress women, the international community must act to ensure that, they too, are protected.
[i] Cronk, T. (2021) Biden announces full U.S. troop withdrawal from Afghanistan by Sept. 11, U.S. Department of Defense. defense.gov. Available at: https://www.defense.gov/News/News-Stories/Article/Article/2573268/biden-announces-full-us-troop-withdrawal-from-afghanistan-by-sept-11/
[ii] BBC (2021) How the Taliban stormed across Afghanistan in 10 days, BBC News. BBC. Available at: https://www.bbc.com/news/world-58232525
[iii] Bureau of Democracy, Human Rights and Labor (2001) Report on the Taliban’s War Against Women, U.S. Department of State. U.S. Department of State. Available at: https://2001-2009.state.gov/g/drl/rls/6185.htm
[iv] THE CONSTITUTION AND LAWS OF THE TALIBAN 1994–2001 (2022) International Institute for Democracy and Electoral Assistance. Available at: https://www.idea.int/sites/default/files/publications/the-fundamentals-of-a-constitution.pdf
[v] Women in Afghanistan: The back story (2022) Amnesty International UK. Available at: https://www.amnesty.org.uk/womens-rights-afghanistan-history
[vi] Council of Foreign Relations (2021) Timeline: U.S. War in Afghanistan. Council on Foreign Relations. Available at: https://www.cfr.org/timeline/us-war-afghanistan.
[vii] Ibid
[viii] International Labour Organisation (2016) Afghanistan – Elimination of Violence Against Women (EVAW) Law, 2009 (Presidential Decree No. 91 of 20 July 2009)., Database of national labour, social security and related human rights legislation. http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=102060.
[ix] International Labour Organisation. (2009) Annex I: EVAW Law 2009 Law on Elimination of Violence against Women (EVAW). ILO. Available at: https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/102060/123253/F2103117289/AFG102060%20Eng.pdf
[x] Wimpelmann, T. (2013) Problematic protection: The law on elimination of violence against women in Afghanistan, openDemocracy. Available at: https://www.opendemocracy.net/en/5050/problematic-protection-law-on-elimination-of-violence-against-women-in-afghan/
[xi] Gossman, P. (2023) “I thought our life might get better”, Human Rights Watch. Available at: https://www.hrw.org/report/2021/08/05/i-thought-our-life-might-get-better/implementing-afghanistans-elimination.
[xii] Afghan Women Skills Development Centre (2023) About us. AWSDC. Available at: https://awsdc.org.af/about-us/
[xiii] Synovitz, R. (2022) Judge, jury, and executioner: Taliban brings Afghanistan’s justice system under its thumb, RadioFreeEurope/RadioLiberty. Radio Free Europe / Radio Liberty. Available at: https://www.rferl.org/a/taliban-afghanistan-justice-system/31588972.html
[xiv] Noori, H. (2022) Taliban Ban Afghan women from University Education, The Guardian. Guardian News and Media. Available at: https://www.theguardian.com/world/2022/dec/20/taliban-ban-afghan-women-university-education
[xv] The Associated Press (2021) Taliban decree an end to forced marriages in Afghanistan, The New York Times. The New York Times. Available at: https://www.nytimes.com/2021/12/03/world/asia/taliban-women-marriage.html.
[xvi] Free Press Kashmir (2023). Taliban imposes ban on women from seeking separation, ‘cancels’ previous divorces. Free Press Kashmir. Available at: https://freepresskashmir.news/2023/03/07/taliban-imposes-ban-on-women-from-seeking-separation-cancels-previous-divorces-2/#:~:text=Afghanistan-,Taliban%20imposes%20ban%20on%20women,separation%2C%20’cancels’%20previous%20divorces&text=In%20Afghanistan%2C%20under%20the%20Taliban,automatically%20invalidates%20their%20second%20marriage
[xvii] George, S. (2023) Afghan women who were divorced under prior government fear for their status, The Washington Post. WP Company. Available at: https://www.washingtonpost.com/world/2023/03/04/afghanistan-taliban-women-marriage-divorce/
[xviii] Ibid
[xix] The Islamic Shari’a Council (2022) Khula. Available at: https://www.islamic-sharia.org/downloads/khula/
[xx] Press, C. (2021) Female Afghan judges hunted by the murderers they convicted, BBC News. BBC. Available at: https://www.bbc.co.uk/news/world-asia-58709353.
[xxi] Harding, L. (2021) Two female judges shot dead in Kabul as wave of killings continues, The Guardian. Guardian News and Media. Available at: https://www.theguardian.com/world/2021/jan/17/two-female-judges-shot-dead-in-kabul-as-wave-of-killings-continues.
[xxii] Reuters (2022) Germany starts New Admission Programme for Afghan refugees, Reuters. Thomson Reuters. Available at: https://www.reuters.com/world/germany-starts-new-admission-programme-afghan-refugees-2022-10-17/
[xxiii] Ministry of Defence (2021) Military operation established to support the drawdown of British nationals from Afghanistan, GOV.UK. GOV.UK. Available at: https://www.gov.uk/government/news/military-operation-established-to-support-the-drawdown-of-british-nationals-from-afghanistan
[xxiv] Wintour, P. (2022) Plight of Afghan judges in spotlight as Court hears UK asylum challenge, The Guardian. Guardian News and Media. Available at: https://www.theguardian.com/uk-news/2022/may/17/afghan-judges-hoping-for-uk-asylum-not-treated-consistently-say-lawyers.
[xxv] Afghanistan Update – Home Affairs (2023) Australian Government Department of Home Affairs. Australian Government. Available at: https://www.homeaffairs.gov.au/help-and-support/afghanistan-update.
[xxvi] Safety net (flexible funding) (2023) Women’s Peace and Humanitarian Fund. Available at: https://wphfund.org/whrds-safety-net/
[xxvii] Babakarkhail, M. (2023) Help Evacuate and Resettle Female Afghan Judges., Change.org. Available at: https://www.change.org/p/female-afghan-judges-are-at-extreme-risk-of-violence-and-need-emergency-visas-urgently?source_location=topic_page
