JUSTICE – Crimes Against Women… Are Not Crimes

For women in Afghanistan, there is no justice—only targeted and obsessive gender persecution. The Ministry of Justice and all the laws that once existed in the country have been dismantled, along with the Ministry of Women’s Affairs and all programs supporting women victims of violence. The only law in effect in the country is Sharia, according to the Taliban’s extreme interpretation. This law is expressed in countless prohibitions, increasingly numerous, excluding women from social life and suspending life itself.

Limiting the rights of women and girls is the main aim of these edicts. Some edicts are directed at men (e.g., a public employee risks suspension if his wife or daughter does not wear the “appropriate hijab”), thereby increasing social control over women.

Crimes against women don’t even have the dignity of being crimes; they are behaviors governed by Sharia. Accepted. Integrated into everyday life. Impunity is total. Domestic and social violence is no longer a crime. There is no authority to appeal to. In Taliban courts, decisions, both civil and criminal, are made by men in the absence of women. The codes change and the Taliban possess them. Justice has sunk into fanaticism. Sharia is enough.

Appealing to a Taliban court puts women at risk of violence and sexual assault. As stated in the June 2023 report released by the UN Human Rights Council, women seeking divorce or fleeing violent domestic situations are the most affected, often forced back into violent relationships. UN experts heard from lawyers handling cases where women who went to court for divorce were reprimanded by judges with remarks like, “Your hand is not broken, your leg is not broken, why do you want a divorce?”, “Get your husband’s consent first,” and flatly, “You cannot divorce.” Forced returns of women to violent partners were further exacerbated by an edict allowing any divorce case resolved during the Republic era to be reviewed by an Islamic Emirate of Afghanistan judge.

Women who worked in the legal field—lawyers, prosecutors, judges—are jobless, living in hiding, and threatened for their past activities supporting women. They are also targets of men convicted of their violence and freed by the Taliban. These men seek revenge relentlessly.

The Past: Justice during 20 Years of US/NATO Occupation

Structural violence against women was not eradicated in the last 20 years, despite propaganda. Opportunities existed but not for everyone. Some women managed to assert their autonomy and pursue their professional paths, often at great risk (attacks on schools and female students, Taliban-targeted killings of professionally active women, threats, and intimidation), while the rest of Afghan women suffocated in silence and daily violence, affecting 87% of them.

Justice for crimes against women remained elusive, but essential support structures existed: Legal Aid Centers with legal, medical, and psychological assistance, Shelters, the Ministry of Women’s Affairs, active associations, and NGOs. Impunity for crimes against women remained very high during this period.

Laws in Force from 2001 to 2021

Yet, there were good laws. The judiciary was reformed by Italians. Here they are:

• CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), ratified in 2003.
• Article 22 of the 2004 Constitution: “Afghan citizens, both men and women, have equal rights before the law.” However, its effectiveness was weakened by Article 3: “No law can be contrary to the beliefs and provisions of the sacred religion of Islam,” thus making Sharia the foundation of law.
• EVAW (Elimination of Violence Against Women) law of 2009, enacted by Karzai but never ratified by Parliament, provided criminal penalties for perpetrators of 17 forms of violence and criminalized harmful traditions, such as ba’d (girls given as brides to settle disputes) and badal (exchange of girls between families).

Only 5% of cases were prosecuted under the EVAW law (UNAMA ’16); in 80% of cases, either family mediation or Parallel Justice, an informal legal system based on Sharia and traditional tribal laws, was used.

Few sought government justice due to the high costs of corruption.

Unfortunately, good laws were seldom used and heavily obstructed during the 20 years of occupation.

The power structures, which should have enforced them, like Parliament or provincial governments, were firmly in the hands of Warlords—powerful tribal chiefs, fierce fundamentalists, and Taliban who continued to control parts of the country. Protecting women and punishing perpetrators of violence was not their priority. Obstructing justice was common practice, employing threats, intimidation, and murders.

The Legal Systems: The Difficult Choice for Female Lawyers

As female lawyers fighting for women’s rights often said, when facing a client in distress, one must support and nurture their courage but respect their fear. Defending women and demanding their fundamental rights was very risky for both the client and the lawyer. Various legal paths could be pursued to seek justice, depending on the situation and risks.

• Criminal Trial: Prosecuting a violent man under the EVAW law was fraught with obstacles. It provided for the aggressor’s conviction (who often served very short sentences due to their ability to threaten judges or bribe authorities), making violent retaliation by the accused and his family more likely.
• Civil Trial at the Family Court: No convictions, penalties, or charges were involved; the perpetrator remained unpunished, but at least divorce could be obtained—a precious document granting the woman freedom from her violent husband.
• Family Mediation: The first step was always to enter the family, discuss, and obtain positive commitments. Rarely effective.
• Shura, Traditional Court, Assembly of Elders and Clerics: Sharia is in effect in the shura, and decisions are rarely in favor of women. But sometimes, it was the only path and could sanction separation from a violent husband.

Those Still Fighting for Women’s Justice

In the dark void where the country has sunk, where justice for women has crumbled and its very existence is denied, some women keep small lights of protection alive.

Courageous women’s organizations like RAWA, HAWCA, and OPAWC continue to defend women, dodging Taliban bans and sanctions as best they can. Secret schools, where rights and justice for women are still discussed, offer comfort and help. Hidden, safe apartments where women at risk can find refuge, following the closure of shelters, seek to live protected lives in the shadows. It is in the shadows, where women hide, that hope is cultivated.