Legislative, institutional and policy reforms to combat violence against women in Afghanistan

Abstract

Since the fall of Taliban regime in 2001, the government of Afghanistan, in a bid to promote human rights and specifically women’s rights, made several legislative and institutional advances. These included the establishment of the Afghanistan Independent Human Rights Commission (AIHRC) as a national human rights institution, Ministry of Women’s Affairs, Departments of Women’s Affairs and Gender, Human Rights Units in various ministries and the passing of the Law on Elimination of Violence against Women (EVAW Law) through a Presidential Decree in 2009. Afghanistan is a signatory to several international human rights instruments, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). International treaties and Conventions to which Afghanistan is a signatory forbid all types of discrimination against girls and women and oblige Afghanistan to eliminate all types of discrimination, violence and other possible detrimental practices against women. This paper aims to critically analyse the international obligations of Afghanistan concerning violence against women and the necessary legal and institutional amendments for providing better protection for such victims. This paper has pursued a reformist agenda to eliminate violence against women, which is largely caused by weaknesses in Afghanistan’s legal, institutional and policy frameworks regarding women. The existing legal environment in Afghanistan comprises three incoherent sources of law—State legal code, customary practices and Islamic sharia law. Adopting and implementing the recommendations are likely to contribute significantly to the emancipation of women in Afghanistan. Thus, as part of the reformist agenda adopted by this paper, violence against women warrants urgent legal, institutional and policy reforms.

1 Introduction

Since the fall of Taliban regime in 2001, the government of Afghanistan, in a bid to promote human rights and specifically women’s rights, made several legislative and institutional advances. These included the establishment of the Afghanistan Independent Human Rights Commission (AIHRC) as a national human rights institution, Ministry of Women’s Affairs, Departments of Women’s Affairs and Gender, Human Rights Units in various ministries and the passing of the Law on Elimination of Violence against Women (EVAW Law) through a Presidential Decree in 2009.¹

These national legislative and institutional plans have proved to be ineffective in addressing the issue of violence against women (VAW) in Afghanistan. According to World Health Organisation (WHO), ‘almost 90% of women in Afghanistan have experienced at least one form of domestic violence, 17% have experienced sexual violence and 52% have experienced physical violence’.² The high prevalence of VAW in Afghanistan can attributed to legal and institutional challenges and ambiguities created by the State and is deeply rooted in Afghanistan’s weak, confusing and contradictory regulatory frameworks towards women.

The high incidence of VAW in Afghanistan demonstrates the inadequacy of the measures taken by the Afghan government. This is reinforced by the observations and recommendations made by the Committee on Elimination of Violence against Women (CEDAW Committee) following the 2013 Afghanistan’s second periodic report. The Committee urged Afghanistan ‘to establish measures, as a priority, to effectively combat impunity and comply with its due diligence obligation to prevent, investigate, prosecute and punish violence perpetrated against women by State and non-State actors’.³

The pervasiveness of VAW in Afghanistan can also be attributed to the judicial attitude towards VAW cases. Women victim of violence lack access to justice and majority of the VAW cases are either resolved through mediation or informal dispute resolution mechanisms such as jirga⁴ and shura⁵. Due to the absence of exact data, it is challenging to determine the percentage of VAW cases that are resolved by these informal institutions. Nevertheless, it is purported that 80 per cent of disputes are resolved through jirga in Afghanistan.⁶ CEDAW Committee expressed serious concerns over the handling of VAW cases by these informal institutions⁷, calling it discriminatory as it weakens the enforcement of the current legislations concerning VAW. This was followed by recommending Afghanistan to define the correlation between formal and informal dispute resolution mechanisms and ensuring that the latter conform to all the national laws including EVAW, and preventing such informal institutions to handle serious human rights abuses.⁸

While there is an increase in reporting of VAW cases in Afghanistan which is attributed to women’s better understanding of their rights, numerous cases of VAW remain unregistered and convictions are a rarity. The formal justice system remains unsupportive of women’s rights and is dysfunctional in handling of VAW cases. Moreover, EVAW continues to be sporadically executed due to its ambiguous status and judicial attitude towards this law.⁹ Women have also no access to key leadership roles and decision-making processes, specifically those that affect women’s rights.¹⁰

Afghanistan has a long history of civil war and devastation; hence, academic writings on topics related to Afghanistan, especially for controversial and complex topics such as the elimination of VAW are limited. This pervasive culture has continued unabated in the absence of formidable State interventions, strict law enforcement and institutional reforms, which constitute the subject matter of this article. The lack of research and scholarly writings also illustrates the limited attention that has been given to this area. The existing literature on VAW is mainly limited to reports provided by international organisations in Afghanistan.

This article aims to fill the gap in the existing literature by addressing Afghanistan’s responsibility to eliminate VAW and evaluate the contradictory legal, institutional and policy frameworks that have contributed to the rise of VAW. This research also contributes to exposing the root causes of the women’s inferiority in Afghan society, which has received sporadic scholarly attention. Hence, there is a dire need to address the factors that have given rise to VAW in Afghanistan and the necessary legal and institutional amendments for providing better protection for women against violence. As part of the reformist agenda adopted by this paper, VAW warrants urgent legal, institutional and policy reforms.

2 Afghanistan’s international obligations concerning violence against women

Under international law, it is a long established international principle that State responsibility is invoked when a State fails to act with due diligence in response to or prevention of acts or omissions of non-State actors.¹¹ These principles were articulated in the 17^th century by Grotious, who held rulers responsible for crimes that could have been prevented by the State.¹² Moreover, in the early 20^th century, Oppenheim advanced the theory of vicarious State liability, which holds a State responsible for an individual’s conduct if it fails to renounce or condemn it.¹³ Triepel argued that a State should be held responsible for its failure to act with due diligence, when required.¹⁴

VAW is widely recognised in the literature as a fundamental human rights violation.¹⁵ Despite acknowledging the challenges, increasing international recognition of VAW has created opportunities for its elimination.¹⁶ The scope of domestic violence is not just limited to physical and sexual abuse, but also encompasses economic and emotional aspects.¹⁷ Thus, as an urgent human rights issue, VAW is currently at the forefront of international development and demands both national and international action.¹⁸

Special rapporteurs on VAW have repeatedly addressed the topic of State responsibility. In 2006, Special Rapporteur Ertürk recommended concrete actions constituting ‘reasonable steps’ towards the prevention and protection of women from violence, the punishment of perpetrators and the compensation of victims.¹⁹ Additionally, in preparation for her thematic report, Special Rapporteur Manjoo provided guidelines on the issue of due diligence standards for VAW.²⁰

Due diligence serves as a tool in determining to what extent States have met or failed to fulfil their international obligations to combat VAW.²¹ Bourke-Martignoni believes that the due diligence standard lack precisions and is not considered the most effective standard by which to combat gender-based violence.²² However, Boerefijn and Naezer argue that the existence of the due diligence principle has been helpful in assessing the extent of State responsibility.²³ Abi-Mershed is of the same view, arguing that it has been proven that due diligence is crucial in delineating the circumstances under which a State may be obligated to prevent or respond to acts or omissions by private actors.²⁴

Afghanistan is party to several international human rights instruments.²⁵ International treaties and Conventions to which Afghanistan is a signatory forbid all types of discrimination against girls and women. Pursuant to its treaty obligation, Afghanistan is obliged to guarantee that women obtain legal protection and are not discriminated against under the law. Article 7 of the Constitution of Afghanistan acknowledges the duty to adhere to international treaty obligations.²⁶

Afghanistan has ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)²⁷ without reservation, becoming the first Muslim country to ratify this Convention without any reservations. This is considered a major step for Afghan women. Hence, by ratifying CEDAW, Afghanistan has committed itself to meeting the Convention’s objectives. This includes incorporating in its legal system the principles of equality between men and women, eliminating and replacing all discriminatory laws, forming public institutions and tribunals to protect women against discrimination and abolishing all discriminatory acts against women by ‘persons, organizations, and enterprises’.²⁸ This resulted in drafting of the 2004 Afghanistan Constitution that relatively protect women’s rights.²⁹

Moreover, Articles 2(c), 3, 5(a) and 15 of CEDAW refer to access to justice. Article 5(a) requires the removal of social norms that delay women’s ability to assert their rights. Articles 15–17 provide obligations to ensure women’s equality under the law, stop all forms of discrimination against women based on socioeconomic status or education and ensure equality of women’s rights in family life. Moreover, the Convention states that the marriage of a child renders the marriage null.³⁰

Article 2 of CEDAW is vital since it provides the proper guidelines and measures to abolish discrimination against women. It includes:

• a) Embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

• b) Adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

• c) Establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

• d) Refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;

• e) Take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

• f) Take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

• g) Repeal all national penal provisions which constitute discrimination against women.³¹

Furthermore, according to Articles 9, 10 and 14 of International Covenant on Civil and Political Rights (ICCPR), Afghanistan’s international legal obligations include the right of all humans to a just trial and equal treatment under the law.³² Fair treatment is a fundamental principle of international law and should be interpreted as legal protection for defendants as well as for survivors and victims under the justice system. Thus, women should be treated with respect and given protection before, during and after the legal process.

Besides, as a signatory to International Covenant on Economic, Social and Cultural Rights (ICESCR), it obliges the government of Afghanistan to prohibit discrimination based on sex (art 2), and warrants that all rights are enjoyed by men and women equally.³³

Additionally, State responsibility might be invoked under human rights law once the measures taken by a State in preventing or addressing the crime of VAW is not reasonable and/or adequate. This is achieved through incorporating the concept of due diligence under human rights law³⁴ that constitutes a ‘yardstick’ to determine the adequacy or reasonability of States’ measures to fight VAW.³⁵ Two fundamental developments solidified due diligence standard: The adoption of 1993 Declaration on the Elimination of Violence Against Women (DEVAW) by the United Nations General Assembly (UNGA) and the nomination of a Special Rapporteur on VAW.³⁶ DEVAW in Article 4(c) urges the States to ‘exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of VAW, whether those acts are perpetrated by the State or by private persons’.³⁷

Hence, through the due diligence norms, States including Afghanistan are required to provide access to justice and address the immediate needs of violence victims. This includes providing health care and support services. Similarly, it must be ensured that no further harms occur. This can materialise through the establishment of proper legislative frameworks, judicial systems and policing systems that offers a safe environment for female victims. Moreover, States must ensure that shelters and physical and psychological health services are accessible to violence victims.³⁸

Despite these obligations, the rise in VAW in Afghanistan and the State’s inaction concerning such violence at all stages—prevention, investigation, prosecution and compensation—is manifest. The CEDAW Committee³⁹, the Committee against Torture⁴⁰, United Nations Assistance Mission to Afghanistan (UNAMA)⁴¹ and the Special Rapporteur⁴² following her field visit to Afghanistan have all acknowledged the normalisation of VAW and the seriousness of the situation of Afghan women and have urged Afghanistan to comply with due diligence standards.

3 Violence against women in Afghanistan

In the United Nations Development Programme (UNDP) 2018 Gender Inequality Index, Afghanistan globally was among the lowest ranking countries (168 out of 189).⁴³ VAW is prevalent, in which the number of girls attending schools is less than half that of Afghan boys. Amnesty International stated that gender-based violence against women and girls continue by both State and non-State actors.⁴⁴

The rise in VAW is particularly evident in locations controlled by the Taliban. Annually, the AIHRC reports thousands of cases of VAW in Afghanistan, including killings, acid attacks and beatings. Cases of VAW continue to be vastly under-reported, largely because of stigmatisation, traditional practices and fear of retribution and punishment for victims.⁴⁵

To date, Afghanistan’s regulatory, institutional and policy frameworks have failed to eliminate or even reduce VAW. Constitutional contradictions and ambiguities have created confusion regarding where the Constitution stands on the issue of combating VAW. Access to justice for women and girls, whether this be through formal or informal dispute resolution mechanisms, is a cause of deep concern in Afghanistan. Inaccessibility to the formal justice system along with corruption, lack of support and untrustworthiness with respect to women’s rights is worrying. In addition to these issues, societal pressures to deal privately with VAW results in victims being forced to choose informal justice systems such as jirgas and shura to resolve disputes. These methods are criticised for failing to uphold women’s rights or provide fair trials and non-discrimination by investigators.⁴⁶ In addition, after reviewing 237 cases of VAW (including violence against girls), UN researchers concluded that authorities frequently directed victims away or pressured them to consent to mediation. These means, which are utilised even when women and girls are the victims of crimes such as forced prostitution, acid attacks and rape, are in direct contravention of EVAW law.⁴⁷

From its initial stages, the EVAW law has been vehemently opposed by conservative parliamentarians. Hence, to circumvent parliamentary procedure, the EVAW law was adopted by a Presidential Decree, violating Article 79 of the Constitution of Afghanistan.⁴⁸ In May 2013, the Afghan Parliament declined approval of the law, which has been abandoned ever since.

The UN Assistance Mission in Afghanistan (UNAMA)⁴⁹ acknowledges that the implementation of national legislation aimed at eradicating VAW remains a challenge. Access to justice for women is restricted, and women continue to face discrimination before the law. Meanwhile, the continued inability of State officials to perform due diligence in investigating, prosecuting and punishing perpetrators or provide compensation to survivors is attributed to the current high rates of impunity and normalisation of VAW in Afghan society.⁵⁰

Moreover, when considering the issues embedded in Afghan society, including insecurity, violence, religious fundamentalism and corruption, the effect of customary law is often neglected. Three principal legal references exist in Afghanistan—sharia⁵¹, constitutional law and customary law.⁵² However, legal pluralism is absent, and sharia and customary laws often prevail because of the special positions they hold in Afghan society.⁵³ Additionally, customary laws are different to Islamic sharia law, leading to clashes. There are substantial misunderstandings among the ulama about the interpretation of Islamic laws specifically pertaining to women’s rights.⁵⁴

In light of the aforementioned matters, this paper aims to demonstrate that the Afghan government has sanctioned the surge in VAW cases by failing to adopt effective, sufficient and clear legal, institutional and policy frameworks. Hence, this paper adopts a reformist agenda in providing workable reforms and recommendations to decrease and eventually eliminate VAW in Afghanistan.

4 Harmony and compatibility of existing laws: civil, sharia and customary

Afghanistan’s existing legal environment consists of three sources of law, namely the State legal code, customary practices and Islamic law (sharia).⁵⁵ Nevertheless, complications have emerged because of the coexistence of both formal and informal traditional systems for the administration of justice in Afghanistan. Jirga and shura are the primary institutions spearheading the traditional justice system.⁵⁶ Moreover, weaknesses in and the untrustworthiness of the formal justice system have resulted in many victims resorting to informal dispute resolutions mechanisms.⁵⁷

Afghanistan’s legal reforms have resulted in the creation of separate legal elites such as statutory law experts trained in law schools in Afghanistan and experts in Islamic law trained in madrassas and sharia schools. This has also resulted in a dual court system in which one court deals with sharia law and the other with statutory law. Currently, the judiciary and courts are dominated by sharia graduates and their loyalists.⁵⁸

The judicial system has been unfavourable towards Afghan women, who are often caught between constitutional rights and cultural constraints and religious and secular laws.⁵⁹ Although Islamic law has been accepted by the public in Afghanistan, customary practices at times take different turns from Islamic law. A substantial lack of understanding and arrangement between Afghan religious leaders about the interpretation of Islamic law in various legal matters has been noted. These include (but are not restricted to) criminal law and procedure, the rights of women, the compulsory effect of rights listed under international law and the broader body of basic rights.⁶⁰

Sharia-trained judges tend to heavily rely on the classical interpretation of Islamic law, leading to the adoption of views that restrict women’s rights and often normalise VAW. Training judges under a unified training system and equipping them with adequate knowledge of Afghanistan’s national and international obligations, specifically concerning women’s rights, is critical. The legal code, customary practices and Islamic laws in relation to women must be harmonised to meet Afghanistan’s international treaty obligations. Presently, the absence of harmony between laws in Afghanistan is mainly attributable to constitutional ambiguities, contradictions and the presence of constitutional crises. These are discussed below.

5 Necessary constitutional amendments

Islam has always held a special position in the Afghan society and the system of governances. The role of Islam has been embedded in all Afghanistan constitutions in different eras: monarchical/secularist, communist’s era, Mujahideen and the Taliban and even the present government. Therefore, it is impractical to rule Afghanistan without relying on the Islamic principles.⁶¹

The role of Islam in constitutional democracies have been subject to debates among both Islamic and western scholars.⁶² Ehteshami asserts that neither Quran nor Prophetic tradition (Sunnah/Hadith) has established a specific form of governance or a ‘definite pattern’ that needs to be conformed to and are subject to interpretations.⁶³ Rashid Moten clams that there are no contradictions between Islam and democracy and if we follow the proper practice of consensus, collective debate, Muslims teachings, transparency and accountability, a democratic rule that is based on Islamic teaching will be produced.⁶⁴

Afghanistan is not immune from such debates i.e. the role of Islam, democracy and international obligations. In Afghanistan, Islamic law is the supreme law of the land. Afghanistan is acknowledged as an Islamic Republic (art 1) and Islam is the State religion (art 2). Article 3 of the Constitution states that ‘No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan’.⁶⁵ It is further specified by Article 149 that the provisions of this Constitution relating to Islam may not be amended.

The Constitution of Afghanistan fails to draw a line between liberal and Islamic teachings. Its contradictory preamble states that the Constitution aims to lead the nation with the principles of the rule of law, democracy and Islam, but fails to indicate how these can be merged in the context of Afghanistan. The Constitution declares that Afghanistan needs to ‘observe the United Nations Charter, interstate agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights’.⁶⁶ However, Article 3 of the Constitution states that ‘No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan’.⁶⁷

While one article requires that no law shall be contrary to the principles of Islam, another requires the State to comply with its international human rights obligations. Many principles in human rights instruments are ‘deemed’ contrary to Islamic principles.⁶⁸ For instance, several Muslim countries such as Morocco, Egypt, and Bangladesh (among others) have made reservations to CEDAW, citing incompatibility of some of its provisions with Islamic law.⁶⁹ This comes with the Afghansitan’s ratification of CEDAW without any reseravtrions. Among other human rights instruments, Article 18 of UDHR not only promotes freedom of religion, but also freedom from religion. Additionally, Article 18(2) of the ICCPR states that ‘No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice’.⁷⁰

Therefore, the language of Article 3 of the Afghanistan’s Constitution raises serious questions. For example, what school of thought should be followed when deciding that no laws should go against the ‘beliefs and tenets of the sacred religion of Islam’, and which organ decides as such?⁷¹ This legal pluralism is inadequately addressed with respect to Afghanistan’s complex political, cultural and religious dynamics, which is evident in the State’s efforts to reconcile secular and Islamic laws. The discord between Islam’s role and Afghanistan’s international obligations existed even at the time of drafting the Constitution, resulting in a Constitution with full of ambiguities.⁷²

Another important provision in Afghanistan’s Constitution that should be revisited is Article 130(2) in which Hanafi jurisprudence is referred to ‘when there is no provision in the Constitution or other laws regarding the ruling of a pending case’.⁷³ Theoretically, when a presiding judge must decide between Islamic law and international obligations, the decision is dependent on the judge’s stance. Given that the majority of judges in Afghanistan are sharia-trained, it is not surprising that the conservative view reinforced by Article 130(2) prevails.⁷⁴

Two important cases on apostasy and blasphemy, which both resulted in the imposition of the death penalty, illustrate the contradiction between Articles 3 and 7 of the Constitution. Abdul Rahman was sentenced to death for renouncing Islam and becoming a Christian,⁷⁵ while Sayed Prawiz Kambakhsh’s was sentenced to death for making blasphemous remarks.⁷⁶ These sentences were in apparent violation of Afghanistan’s obligations under international law, specifically under Article 18 of UDHR and Article 18(2) of the ICCPR.

Therefore, there is the need for constitutional amendments as to where Afghanistan stands in terms of its international women’s human rights obligations. Articles 3 and 7 are contradictory and the EVAW law is perceived differently by judges and practitioners, resulting in weak, confusing and unconstitutional legal frameworks for women in Afghanistan. This contradiction is further reinforced by the inclusion of Article 130, allowing judges to rely on the Hanafi school of thought when there are lacunae in the law. In the Hanafi school of thought, there can be diverse opinions on a single matter, allowing judges to impose stricter punishments depending on their stance on women’s rights and VAW.

This problem is further exacerbated by the presence of the constitutional interpretation crisis in Afghanistan. Article 121 of the Constitution gives the constitutional interpretation authority to the Supreme Court.⁷⁷ Conversely, Article 157 established the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC), creating a constitutional interpretation crisis between the Commission and the Supreme Court.⁷⁸ This has resulted in clashes between the two organs, both claiming that they have constitutional mandates to interpret the Constitution. The Commission lacks structure, its authorities are vague and the selection and qualifications of its members are left entirely to the Executive. Therefore, unless and until these constitutional ambiguities and interpretation crises are sufficiently addressed, it is unrealistic to expect any improvements in women’s rights issues with respect to VAW in Afghanistan.

Finally, despite Article 22 in the Constitution, which states that ‘Any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden’,⁷⁹ the explicit prohibition of discrimination based on sex is absent. It is recommended that a provision for the prohibition of discrimination based on sex be included in the Constitution and relevant legislation in line with Articles 1 and 2 of CEDAW.

6 Reforms to the law on the elimination of violence against women (EVAW Law)

In 2009, the Law on the Elimination of Violence Against Women (EVAW Law) in Afghanistan was issued through a Presidential Decree while the parliament was in recess.⁸⁰ This law addresses and criminalises domestic violence, child and forced marriages, and many other abuses against women. In order to attain parliamentary approval, EVAW was brought before the parliament in 2013 and was vehemently opposed and rejected by the parliament, mainly due its contradiction with Islamic law and particularly Article 3 of the Constitution. Its status and the enforcement remains unclear⁸¹ and the law has been in ‘limbo’ since then.⁸² While the promulgation of EVAW was a momentous achievement in 2009, the tenth anniversary of this law is not a cause for celebration, but of concern.⁸³ As Afghanistan was recently revising its 1976 Penal Code, there were attempts to incorporate EVAW into the new revised 2018 Penal Code in a bid to strengthen its status; however, these attempts were failed, causing further concerns.⁸⁴

Afghanistan’s failure to enact the EVAW law since 2009 has had catastrophic consequences on female victims of violence, demonstrating the fragility and unreliability of this law. EVAW has been unverified, and its implementation is sporadically executed. Many judges and legal practitioners consider this law unconstitutional as it contradicts Article 79 of the Constitution.

As a result, access to justice for Afghan women is limited and they receive unequal treatment before the law. State officials have constantly failed to exercise due-diligence to investigate, prosecute and punish VAW perpetrators, and offer reparations to violence victims.⁸⁵ UNAMA in cases monitored between 2016 and 2017 found that there is a ‘de facto impunity’ for honour killings and murder of Afghan women mainly caused by judicial attitude towards resolving the VAW cases through mediation.⁸⁶

The Special Rapporteur’s report also reveals that women are frequently discouraged and afraid of authorities and as such are discouraged to file complaints. The report continues that ‘even when they file complaints, they are encouraged to withdraw the case. Prosecutors often use one of the objectives of the EVAW, defined under its Article 2 as the preservation of the family unit, to mediate cases out of the formal court system’.⁸⁷

Apart from the need to enact the EVAW law through a proper parliamentary process, there are also several provisions within EVAW that need amendments. According to Article 39 of the EVAW law, complaints made by victims can lead to proceedings against and prosecution of perpetrators of violence.⁸⁸ However, the law states that a victim can withdraw a case anytime, including at the detection, investigation, trial or conviction stages, ending the proceedings and imposition of punishment.⁸⁹ This is of concern because, regardless of the severity of the crime and the injuries inflicted on female victims, the law allows for the acquittal of perpetrators. It is also recommended to expand State authorities’ obligations to investigate and prosecute all 22 EVAW crimes, regardless of any associated civil complaint or proceedings.

In addition, there is the need for an effective monitoring mechanism of EVAW implementation in Afghanistan. It is crucial to ensure that implementation and progress records of EVAW are tracked and measured, and the collection of data is consistent with the extent of EVAW implementation. Through such processes, stakeholders and relevant organisations that advocate for women’s rights can propose reforms where needed.⁹⁰

7 Afghanistan’s penal code review

The most contentious aspect of the 2018 revised Penal Code is the non-incorporation of the EVAW law, which continues to be executed as a special and separate law. Few of the EVAW law’s provisions have been included in the revised Penal Code, but not in its entirety.⁹¹ This is of concern because the EVAW law is merely based on a Presidential Decree and is widely considered unconstitutional by legal practitioners and judges.

In addition, there are also other concerns regarding the 2018 revised Penal Code that can normalise the crime of VAW against women. The virginity of unmarried women remains an important part of Afghan society⁹² and is considered a matter of family honour. Afghan girls and women at certain circumstances are forced to undergo the practice of ‘virginity test’.⁹³ With the recent revision of Afghanistan’s Penal Code, there were optimisms that such issue is going to be addressed. However, the new revised Penal Code has not fully addressed this practice and women can still be subjected to virginity tests either by consent or court order. Even stipulating consent criteria does not provide any sort of protection because the majority of women are constrained by a strict patriarchal system.⁹⁴

The allegation of sexual intercourse by unmarried girls can result in a court order for a virginity test. Women have also undergone virginity tests for unjustifiable reasons. Many have questioned the medical accuracy of the gynaecological exams that determine virginity. Under international law, these tests are considered degrading, cruel and inhumane.⁹⁵ This is despite the recommendation made by the Special Rapporteur in 2014 to ‘revise the Criminal Procedure Code and prohibit degrading practices, including virginity testing, as a source of evidence in criminal investigations’.⁹⁶

It was hoped that the new Penal Code would bring significant developments and transformation to Afghan society. However, excluding the chapter that criminalises VAW has led to serious concerns because it means that the strongest criminal code does not provide protection for VAW. There is a need for technical amendments to the Penal Code to ensure that the EVAW law is applicable. Moreover, the practice of virginity testing, which is legitimised by the Penal Code, must be removed and dismissed. Thus, there is a need to revisit the Penal Code and remove the elements that undermine women’s dignity.

8 Required institutional reforms

Ministry of Women’s Affairs (MoWA) reports that women make up 22 per cent of government employees, but that only 9 per cent are in decision-making positions. Women account for 1.3 per cent of employees in the security sector and 18 per cent of those in the health sector.⁹⁷ Moreover, non-government organisations in Afghanistan are moving further away from implementing gender projects under the guise of incorporating gender issues into new or existing programs.⁹⁸

Women’s leadership in Afghanistan mainly focuses on a top-down approach, which places women in political positions of authority without any emphasis on the leadership skills needed for such challenging positions. Such strategies have led to the isolation of these women rather than giving them any power in mobilising people with common interests. Despite bottom-up efforts being made, they have failed because they have only involved individual leaders and organisations rather than creating a broader social conversation that could bring lasting social change.⁹⁹

The top-down approach assumes that leadership is equated with sanctions. An anthropologist who conducted ethnographic research in 2012 similarly concluded that MoWA used a top-down modernisation model.¹⁰⁰ The symbolic value of MoWA’s existence has had one effect—keeping the women’s agenda alive in domestic politics. The establishment of this ministry has had little to do with women’s agendas and is simply considered a step to appease the international community. The ‘appointment of MoWA’s senior management has largely been driven by interests of major financial players’.¹⁰¹ Therefore, such appointments lack merit and fail to meet the basic foundational top-down assumptions in promoting women’s leadership.

Therefore, the focus on women’s leadership must be coupled with female leaders who are trained and ready to meet the sophistication and sensitivity of gender-based issues in Afghanistan. Greater priority must be given to the issue of VAW in Afghanistan, and critical leadership is necessary. When there is political will, there will be greater resource allocation and assistance by the State.

For the legal protection of women, the inclusion of women as stakeholders in policymaking at the national level is crucial. It is also important to increase women’s participation in political, social and economic settings. Violence is more prevalent in families and societies with high rates of poverty,¹⁰² and a scarcity of resources leads to gender-based discrimination, deprivation and the belief that boys are more valuable than girls.

Lastly, the independence of the AIHRC must be strengthened in line with the Paris Principles, which relate to the status of national institutions in promoting and protecting human rights.¹⁰³ A clear and fair nomination and selection process in and sufficient budgetary resources must be ensured to enable the Commission to achieve its mandate.¹⁰⁴

9 The importance of improving socioeconomic conditions for Afghan women

Many Afghan women and girls, especially those in the rural areas, have high level of illiteracy and face inequality, underdevelopment, and lack of employment and educational opportunities. Women choose not to leave abusive situations because of the challenges associated with it. These include the deprivation of inheritance, difficulties in obtaining divorce, fear of losing custody of their children and the inability to return to their communities and homes.¹⁰⁵

The importance of improving the socioeconomic situation of women to eliminate VAW is recognised in the 1990 Resolutions and Decisions of the Economic and Social Council.¹⁰⁶ Low socioeconomic status is considered a contributing factor to domestic violence. Identifying such factors is critical for combating domestic violence to ensure the appropriate allocation of resources and the necessary interventions. Hence, domestic violence cannot be addressed without considering the socioeconomic status of women.¹⁰⁷ The lack of economic independence accentuates women’s vulnerability. It is easier for economically independent victims of domestic violence to resolve issues independently or leave abusive relationships. However, subordinate women with no resources face the opposite situation.¹⁰⁸

Afghan women have limited participation in and influence on the economy. Despite improvements, the market is mainly dominated by men. Women account for only 19 per cent of the labour force and only 11 per cent of non-agricultural jobs. The rate of female labour participation is 18.5 per cent in comparison to 80 per cent for men, and UN Women estimates that women own only 5 per cent of businesses in Afghanistan.¹⁰⁹

As expressed by the UN resolution¹¹⁰, VAW in Afghanistan is expected to continue unless the State takes the initiatives to improve the socioeconomic status of women. The current injustices against women in Afghanistan are mainly attributed to their low socioeconomic status (among others).

10 Women’s involvement in peace talks

Similar to 2014 presidential election in Afghanistan, September 2019 election was also tainted with irregularities. The 2019 election result was challenged by Abdullah Abdullah who served as the Chief Executive Officer since 2014 election due to the sharing power agreement that was reached between him and President Ghani, mediated by the United States (US). After many months of political uncertainties, Abdullah and President Ghani have reached a new sharing power agreement, helping the peace process to continue. Based on the agreement reached, Abdullah will be the chairman of the High Council for National Reconciliation (HCNR), mandated to spearhead the peace negotiations with the Taliban.¹¹¹

As the Afghanistan peace process progresses, the challenges of COVID-19 has made this process and its impacts uncertain. Following two years of negotiations between the US and Taliban, in 29 February 2020, the ‘Agreement for Bringing Peace to Afghanistan’ was signed in Doha. Four topic are covered by the agreement: ‘the withdrawal of US troops; counter-terrorism cooperation between the US and the Taliban; a reduction in violence that can lead to a ceasefire; and the initiation of the intra-Afghan negotiations’.¹¹² This agreement has also facilitated the intra-Afghan talks between the government of Afghanistan and the other political fractions with the Taliban that were excluded in the earlier negotiations.¹¹³

The recent peace negotiations have raised many concerns. The US and its allies invaded Afghanistan to overthrow the extremist and fanatical Taliban regime and support a democratically elected government.¹¹⁴ Taliban ruled Afghanistan from 1996 until 2001 and they demonstrated the most notorious human rights abuses against women, such as denying them of access to education, health care, freedom of movement and publicly punishing them by lashing and even stoning.¹¹⁵

As the peace talks with this group progresses, there are fears that the last two decades hard-earned achievements regarding women rights are going to be compromised. Afghanistan government has failed to include women in peace negotiations. Quotas to ensure the presence of women are merely symbolic and appointments lack merit. Generally, the road to peace has failed to include women at all. Women’s interests are ignored and have been compromised. For instance, the peace agreement reached between Afghanistan and the militant Gulbuddin Hekmatyar, giving him and his militia amnesty in 2016, did not touch on women’s rights and their futures.¹¹⁶ Afghan women activists have strongly opposed such moves.¹¹⁷

In the Moscow talks, the Taliban demanded a revision of the Constitution of Afghanistan and the recent US–Taliban peace negotiations are considered hasty and alarming.¹¹⁸ Individuals such as Cheryl Benard, whose article was published after the Americans and the Taliban had agreed in principle to a peace framework, have underestimated the devastating influence of the Taliban on Afghan women.¹¹⁹

Women exclusion in the peace process is despite the 2018 Security Council’s resolution that called on Afghanistan to facilitate ‘the effective and meaningful participation of women and women’s rights groups’ in the peace process.¹²⁰ This problem was also highlighted in the 2013 CEDAW Committee report on Afghanistan. The Committee recommended that women’s participation in the peace process must be ensured.¹²¹ Therefore, the recent peace process talks have created an atmosphere of fear and uncertainty for the future of Afghan women and girls. It is vital that that the current intra-Afghan negotiations with Taliban include the interests of various stakeholders, particularly women, who represent the most vulnerable members of Afghan society.

11 Conclusion

This paper has pursued a reformist agenda to eliminate VAW, which is largely caused by weaknesses in Afghanistan’s legal frameworks regarding women. The existing legal environment in Afghanistan comprises three incoherent sources of law—State legal code, customary practices and Islamic sharia law.

The lack of harmony and compatibility of these laws has served as a barrier to providing better protection for women. The judicial system has been unsupportive of Afghan women, who are often caught between constitutional rights and cultural constraints and religious and secular laws. This problem has emanated from constitutional contradictions and ambiguities. The Constitution of Afghanistan has failed to draw a line between liberal and Islamic teachings or, alternatively, to complement them to support each other. The contradictions between Islam’s role and international obligations existed when the Constitution was drafted, but remain unaddressed.

Hence, in addressing these challenges, this paper proposed the necessary constitutional amendments to provide better protection to Afghan women and violence victims. This paper also examined the ambiguities contained in other Afghanistan legal instruments that deal with VAW, including EVAW and 2018 revised Penal Code and consequently provided the needed reforms. This paper also illustrated in order to combat VAW, there is also a need for institutional and policy reforms, improvement of socioeconomic conditions for Afghan women, and their active involvements in the peace process.

This paper also purports, in order to forward women’s rights agendas and combat VAW in Afghanistan, it is vital to embrace feminist scholarships that are consistent with Islam, Islamic values and the social settings of Afghanistan. As Islam holds a special position in the Afghan society, it must be ensured that women’s empowerment approaches are based on Islam rather than Western approaches. This implies that sharia-based approaches are an effective means of combating VAW. Many female activists have reported that the likelihood of people accepting women’s rights is higher when the Islamic law approach is used.¹²²

There is also a need to engage many stakeholders in the dialogue to end VAW. These stakeholders include, but are not limited to, men, traditionalists and ulama. Involving ulama in the dialogue is essential because of their substantial influence in society. Many ulama in Afghanistan heavily rely on strict and classical scholars’ interpretations of women’s rights. Some classical scholars approve of the beating of women, considering it a man’s right. However, the majority of contemporary scholars reject such a view.¹²³ It is vital that views that disapprove of and criminalise VAW are disseminated throughout Afghan society via various platforms and forums such as mosques, universities, television programmes, awareness campaigns and conferences.

In addition, it is also recommended that Afghanistan should ratify Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (OP-CEDAW) to provide better protection mechanisms for Afghan women. Afghanistan’s current regulatory and institutional frameworks have proven ineffective in protecting victims of violence. By ratifying OP-CEDAW, victims of violence can bring their individual complaints before the CEDAW Committee, following the exhaustion of local remedies. This is in line with the 2015 UN Security Council resolution, which urged ratification of OP-CEDAW by States that had not yet done so.¹²⁴ Once the individual complaints can be brought before the CEDAW Committee, it will result in better access to justice for VAW victims and a greater accountability of Afghan government before the CEDAW Committee, the international community and the donors.