Launching a Global Campaign Against Gender Apartheid in Afghanistan

Three items to share on this, the one-year anniversary of the Taliban takeover of Afghanistan:

Register and attend what promises to be a riveting discussion on Global Strategies for Countering Gender Apartheid in Afghanistan on Friday 19 August 2022, with courageous Afghan women human rights defenders like Shaharzad Akbar and Zarqa Yaftali and international partners like the University of Michigan’s Professor Karima Bennoune and Human Rights Watch’s Heather Barr. Register here.

View filmmaker Ramita Navai’s documentary Afghanistan Undercover, about which noted interviewer Terry Gross of the program Fresh Air remarked in her interview with Navai: “I feel like the world isn’t watching as carefully anymore. And your documentary was a wake-up call to me. . . . things have gotten so dire for women there.”

Read Professor Bennoune’s powerful analysis The Best Way to Mark the Anniversary of Taliban Takeover? Launch a Global Campaign Against Gender Apartheid in Afghanistan, which explains why “it is critical to commit to a more effective and principled global response, and to do so by recognizing this grave set of abuses for exactly what it is: gender apartheid.”

Time to act, UN Human Rights Committee

Afghanistan, which ratified the ICCPR in 1983, was last reviewed by the UN Human Rights Committee in 1995 – and it was a truncated review at that. The Afghan head of delegation was unable to be present due to delays en route, so the Chair suspended the review that had barely begun, saying that consideration of the report would be resumed at a subsequent meeting.

No subsequent review has ever taken place. Instead, there has been one postponement after another, as shown by the timeline below.  Why the neglect by the premier human rights treaty body authorized to monitor compliance with civil and political rights?  

Prompted by concerns we heard from Afghan women human rights defenders and Afghan human rights defenders more broadly, three of us wrote to the Human Rights Committee last week urging them to schedule a review of Afghanistan without further delay: Felice Gaer, Former Vice Chairperson and member, Committee against Torture, and Director, Jacob Blaustein Institute for the Advancement of Human Rights; Karima Bennoune, Professor of Law, University of Michigan, and immediate past UN Special Rapporteur in the field of cultural rights; and yours truly, Stephanie Farrior, professor of international law for 30 years and past Legal Director of Amnesty International. We await a response. The Committee has reportedly already set its calendar of reviews for the next several years. If a review of Afghanistan is not already scheduled, it should be, and without yet more delay.  

Afghanistan has seen significant political turmoil in the years since that partial Committee review held in 1995 – from the Taliban, to the Karzai government after the US invasion and now, back to the Taliban, which is not recognized by the United Nations as the official representative of Afghanistan. This has not prevented other UN human rights treaty bodies from holding a review of the implementation of their treaty in Afghanistan (see below).

The Human Rights Committee did schedule review of Afghanistan for March 2000, but the government requested and received a postponement.  

The review was next scheduled to take place in October 2001, and in the preceding session in May, the Committee developed its “List of issues prior to reporting.” However, the events of 9/11 intervened, and the Committee decided “to postpone review of implementation of the Covenant in Afghanistan to a later and more favorable date.” A concern expressed in that meeting by the late Sir Nigel Rodley and shared by other Committee members at the time was that their statement postponing the review “should not be interpreted in such a way as to suggest that the Committee will henceforth no longer consider the reports of States Parties in which an armed conflict is taking place.” Christine Chanet added that the presence of armed conflict does not only not prevent consideration of a state party, but it actually “adds to the concerns of the Committee.”

It was not until a decade later, in July 2011, that a review of Afghanistan was once again on the table, when the Human Rights Committee announced it would develop a “List of issues prior to reporting” at its July 2012 session.  It did indeed adopt a list of issues at that 2012 session, but in the ensuing ten years, no review of implementation of the Covenant in Afghanistan was ever scheduled or held.

Today, the human rights situation in Afghanistan is dire. For women and girls, as a journalist quoted in Amnesty International’s recent report has stated, “it’s death in slow motion.” For some, it’s more than one can bear. According to UN News: “The situation for women is so desperate in Afghanistan that they are committing suicide at a rate of one or two every day, the Human Rights Council has heard.”

In light of the dire situation in Afghanistan, the Human Rights Committee could take action and schedule a long overdue review of the civil and political rights situation there. The Committee’s Rule of Procedure 70 allows for review of a state party in the absence of a report. In this case, the last report submitted by Afghanistan could be updated with the significant body of information documented by UNAMA, the UN Special Rapporteur on Afghanistan, and human rights NGOs.  In addition, Afghan human rights defenders are keen to submit shadow reports. They are also keen to see every human rights mechanism engaged to the extent possible, to keep up international attention and pressure.

In a situation where the de facto entity in control of a state’s territory is not a recognized government, the Committee could nonetheless follow normal procedures and send an invitation to participate in a review to the office of the Permanent Mission of Afghanistan in New York. The UN-recognized (former) government officials could attend, present an oral (or written) report – or not. It should be noted that Rule of Procedure 68.2 allows for consideration of a report if the state party does not send a representative.   

The timeline below shows year after year after year of postponements of a review of Afghanistan by the Human Rights Committee. Other treaty bodies have engaged in periodic reviews of Afghanistan in the years when the Human Rights Committee was not scheduling a review, most recently the Committee against Torture in 2017-2018, and CEDAW in both 2016 and 2020.

It is time for the UN Human Rights Committee to re-engage, and schedule a review as soon as possible, given the critical situation there and the importance of continued international scrutiny. The record of neglect by the Human Rights Committee means that there has been no authoritative analysis of the implementation of the Covenant on Civil and Political Rights in Afghanistan for 27 years. The Committee should correct this situation promptly.  

October 1991: Afghanistan submitted 2nd periodic report to the UN Human Rights Committee. 

October 1995: Committee began review of the 2nd report, but soon suspended the review due to the absence of the head of delegation caused by travel delays. “The Chairman said that consideration of the report of Afghanistan would be resumed at a subsequent meeting,” and the Committee requested the Government of Afghanistan to submit information updating the report before 31 May 1996 for consideration at” its session in July 1996.  No additional information was received.

The next mention of Afghanistan in Summary Records after October 1995:

October 1999: The Committee invited Afghanistan to present its report at its March 2000 session. The State party asked for a postponement.

November 1999:  The Committee discussed and adopted a list of issues to be taken up in connection with the consideration of the second periodic report of Afghanistan.  Materials used in the preparation of the list included the report of the Special Rapporteur on the situation of human rights in Afghanistan and a report by Amnesty International on the situation of women in Afghanistan.

May 2001: The Committee decided to consider the situation of Afghanistan during its session in October/November 2001, applying Rule of Procedure 68.2, which allows for consideration of a report if the state does not send a representative.

October 2001: The Committee decided to postpone consideration of Afghanistan to a later date, “pending consolidation of the new Government.” “The Committee has very serious concerns regarding the implementation of the provisions of the Covenant in Afghanistan, particularly with regard to the situation of women in Afghanistan, public and extrajudicial executions, and religious intolerance. . . . Despite the fact that, with the current situation of armed conflict in Afghanistan, other serious concerns concerning the protection of the rights guaranteed by the Covenant have been added, the Committee considers that reviewing the report would not be productive in the current situation. [The Chairman] has therefore decided to postpone consideration of the report to a later and more favorable date for the purposes of article 40 of the Covenant.”

Continued postponements: In succeeding annual reports, the Committee duly recorded the previous postponements, but never scheduled a review:

A/58/40(Vol.I)    2002-2003

A/59/40(Vol.I)    2003-2004

A/60/40(Vol.I)    2004-2005

A/61/40(Vol.I)    2005-2006

A/62/40(Vol.I)    2006-2007

A/63/40(Vol.I)    2007-2008

A/64/40(Vol.I)    2008-2009

A/65/40(Vol.I)    2009-2010

A/66/40(Vol.I)    2010-2011

May 2011: “Afghanistan accepted the new optional procedure on focused reports based on replies to the list of issues prior to reporting. It is thus waiting for the Committee to adopt a list of issues prior to reporting.”

July 2011:  The Committee report notes: “The timetable for consideration of reports posted on the Committee website would . . . take account of the States parties for which a list of issues prior to reporting was to be adopted in July 2012, namely Afghanistan, Croatia, Israel, San Marino and New Zealand.”

July 2012:  The Committee adopted a list of issues prior to reporting on Afghanistan with a deadline of 31 October 2013 for its response. In the Committee’s July 2012 LOIPR includes the following  “Please provide any other information on measures taken to disseminate and implement the Committee’s previous recommendations (CCPR/C/AFG/CO/2), including any necessary statistical data.”

For those interested in seeing what those previous recommendations were: Per the UN Library Services, “despite the fact that document CCPR/C/AFG/Q/3 clearly mentions CCPR/C/AFG/CO/2, this document symbol is not recorded in any other source or index and according to the historical research above, the second report issued in 1992 was never fully considered – so no formal documented outcome must have been issued.”

Over the ten years that have passed since it adopted the list of issues, the Human Rights Committee has never reviewed implementation of the Covenant in Afghanistan.

2013-2014: The Annual Report notes the Committee’s adoption of a list of issues prior to reporting on Afghanistan with a deadline of 31 October 2013 for its response. “This report has still not been received.”

Note: The Human Rights Committee’s Rule of Procedure 70 allows for consideration of a State Party in the absence of a report.

2014-2019: The next five Annual Reports of the Human Rights Committee stop giving the prior history of postponed reviews, and only mention Afghanistan in the list of states that are 10 or more years overdue in submitting a report.

There is no further mention of Afghanistan in Annual Reports or Summary Records.

Women challenge sexism in U.S. and Canadian guest worker programs through bold and innovative NAFTA labor petitions

In July  2016, UFCW Canada and Centro de los Derechos del Migrante (CDM)  filed petitions under NAFTA’s labor side agreement alleging sex discrimination in recruitment for the Canadian  Seasonal Orange tiger liliesAgricultural Worker Program (SAWP) and the U.S. H-2A and H-2B agricultural and low wage visa programs. In early 2018, CDM filed a supplement to its petition, arguing that sex discrimination is pervasive in recruitment for professional visa programs as well as low wage visa programs.

Because of sex discrimination in recruitment, less than 4 percent of the workers who participate in U.S. and Canadian agricultural and low wage guest worker programs are women. While working conditions in guest worker programs are rife with human and labor rights issues, they still represent economic opportunity for women who would like to participate.  Moreover, women who are excluded are forced into migration through informal channels, leading to the risk of violence, human trafficking, and even worse working conditions.

These two bold and innovative petitions highlight in a tangible and human way the bifurcation of global migrant labor markets.  Global migrant labor markets bifurcated based on gender exclude women from economic opportunity based on gender stereotyping. Discrimination in recruitment and treatment of women in the global migrant labor market is the norm, not the exception.

My forthcoming article in the Employee Rights and Employment Policy Journal discusses and compares the facts and claims raised in each petition under applicable legal frameworks in Canada, the U.S., Mexico, and the North American Agreement on Labor Cooperation (NAALC). The article explores possible outcomes of the petitions given the nuances and political environments in the Canadian and U.S. cases and the current state of relations between the Government of Mexico and its North American neighbors. Finally, the article places sexism and gender stereotyping in North American guest worker programs in an international context, discussing other examples of sexism in the global labor market and existing norms in ILO Conventions and CEDAW Recommendation No. 26 on Women Migrant Workers.

Row of flowers and sidewalkIn the Canadian case, the article argues that the Governments of Canada and Mexico should renegotiate international agreements that form the SAWP to implement the recommendations of the Mexican Council on the Prevention of Discrimination. In the U.S. case, the article argues that the Government of Mexico should pursue the establishment of an Evaluative Committee of Experts (ECE) under Article 23 of the NAALC if the U.S. does not enact and enforce meaningful reforms to eliminate sex discrimination in the H-2A and H-2B visa programs.

This article is the direct result of the supportive research community that has grown up around the IntLawGrrls blog. I first presented it as part of a wonderful panel at the IntLawGrrls 10th Birthday Conference in Athens, Georgia in March 2017.  Moderated by Jaya Ramji-Nogales and featuring Karen Bravo, Deepa Das Acevedo, and Urvashi Jain, this panel focused on exclusion – whether the exclusion of transgender children from schools in India, of persons from their fundamental humanity through slavery and human trafficking, of women from the Hindu temple at Sabarimala, or of women from economic opportunities represented by international guest worker programs.  I am grateful to my fellow panelists, to IntLawGrrls, and to the Dean Rusk International Law Center at the University of Georgia Law School for a transformative experience.

Olga PedrozaMy article is dedicated in part to Olga Pedroza of Las Cruces, New Mexico, who unfortunately passed away earlier this year. Olga was my boss when I worked as a farmworker intern at Southern New Mexico Legal Services during law school. Olga introduced me to a world I never imagined, where migrant farm workers sleep on sidewalks in El Paso to catch 4:00 a.m. school buses to ride hours away to pick chiles, tomatoes, and onions in Southern New Mexico.  It was because of Olga that I sat in a renovated chicken coop in Artesia, New Mexico, talking to a farmworker who told me that he and other farmworkers did not deserve any better. After her retirement from Southern New Mexico Legal Services, Olga served as a Law Cruces City Councilor for 8 years. Olga was a tireless and lifelong advocate for the excluded. She will be missed.