March 29, 2012

I. Women’s Rights since the End of Taliban Rule

Afghan women, from uneducated villagers to long-time rights activists, greeted the fall of the Taliban government in 2001 with joy and optimism. Across the country, women looked for ways to seize new opportunities for themselves and their daughters and recover from the losses of the Taliban years.

Some improvements came quickly. Several million girls went to school for the first time, and women became more visible in public life, with many returning to work. In December 2001, a month after the fall of the Taliban, Dr. Sima Samar became the deputy prime minister and Afghanistan’s first minister of women’s affairs.

A constitution adopted in 2004, though stating that all laws should be compatible with Islamic law, guarantees women equal rights. Constitutional and governmental changes resulted in some dramatic improvements in women’s political participation, with approximately a quarter of seats in parliament reserved for women. [8] International aid flowed in, funding education, healthcare, and other services for women and girls. The government acceded to the Convention on the Elimination of All Forms of Discrimination against Women. [9] The country’s new president, Hamid Karzai, assured Afghanistan’s women that he believed in equal rights, and a future where they would emerge from their houses and help rebuild the country. [10]

While the years that followed did not live up to the heady optimism of late 2001, they brought real progress. Maternal mortality consistently declined in many parts of the country, [11] the number of girls enrolled in school soared from around 5,000 in 2001 to 2.4 million by 2010,[12] and shelters were established to assist women fleeing domestic violence. Women have assumed leadership roles including as parliamentarians, civil servants, judges, prosecutors, defense attorneys, soldiers, and civil society activists. The first female provincial governor was appointed in 2005. By 2011 there were about 1,195 women police officers. [13] The Afghan government now includes two female ministers, in the ministries of Public Health and Women’s Affairs, and 69 women serve in the elected house of parliament.

The adoption of the Law on the Elimination of Violence against Women by presidential decree in 2009 was also a major landmark in advancing women’s rights. [14] While there are important gaps, the law created and strengthened protections for women against a broad range of abuses, including rape, underage marriage, forced marriage, domestic violence, and denial of education. [15]

However, Afghan women and girls continue to face numerous obstacles to realizing their basic rights. The urgency of removing those obstacles is only heightened by the impending withdrawal of international military forces and the likely corresponding decrease in international attention and pressure on women’s rights.

Gains in the areas of women’s and girls’ literacy, maternal mortality reduction, female participation in the workforce and in public life have been far more modest than hoped: for example, more than half of all girls are still not in school. Advances have also often come at great cost to many Afghan women and girls: those who have stepped into public life, the workforce, and schools have faced threats, harassment, physical attack, and sometimes murder.

Promoting women’s rights was not the primary reason for the US invasion of Afghanistan in October 2001. But the horrors of women’s lives under the Taliban played a key role in strengthening support for military intervention. The following statements reflect how women’s rights were used as a secondary justification for intervention:

The mistreatment of women in Afghanistan was like an early warning signal of the kind of terrorism that culminated in the attacks of September 11….By empowering women with the freedom to choose their own future… America can do more than rid the world of an international terrorist network. It can promote the kind of values that will act like antibodies against the virus of evil that exists in too many hearts around the planet.

—Then-US Senator Hillary Clinton, days after the start of the US invasion in October 2001 [16]

Afghan women know, through hard experience, what the rest of the world is discovering: The brutal oppression of women is a central goal of the terrorists… Only the terrorists and the Taliban forbid education to women. Only the terrorists and the Taliban threaten to pull out women's fingernails for wearing nail polish… Because of our recent military gains in much of Afghanistan, women are no longer imprisoned in their homes…The fight against terrorism is also a fight for the rights and dignity of women.

—Laura Bush, wife of then-US President George W. Bush, weeks after the US attack, giving her first presidential radio address in place of her husband [17]

[T]he women of Afghanistan still have a spirit that belies their unfair, downtrodden image. We need to help them free that spirit and give them their voice back, so they can create the better Afghanistan we all want to see.

—Cherie Blair, wife of then-UK Prime Minister Tony Blair [18]

France, as a permanent member of the UN Security Council, is present in Afghanistan alongside 40 nations including 25 of the 27 European Union countries at the behest of Afghan authorities and under a UN mandate. It thus contributes, in accordance with its principles and values, to defending human rights and improving the position of women in society.

—French government statement [19]

I would like to take this opportunity to say to all Afghans: there cannot be true peace and recovery in Afghanistan without a restoration of the rights of women.

—Then-UN Secretary-General Kofi Annan [20]

Segregation of the sexes is extreme . The concept of men and women working in an office together is sufficiently controversial that many families prevent women from working for this reason. In some communities and families, women are simply not permitted to leave the home. In addition, the Taliban now controls large parts of the country, particularly in the south and southeast, bringing with them the same attitudes and policies towards women that characterized their years in power from 1996 to 2001.

Discussions of women's rights in Afghanistan often entail assertions that restrictions on movement, access to education, political participation, and privacy, including choosing whether to wear a burqa, are cultural or reflect Afghan tribal codes or religious traditions. But while cultural codes can be a powerful force in Afghanistan, such codes are not comprehensive, unchanging, or monolithic. Afghanistan’s many diverse cultures have varying attitudes and different histories of treatment of women and girls. More importantly, when laws criminalize women and girls fleeing abuse, when soldiers and police abduct and rape women and girls with impunity, and when the government does not address restrictions resulting in discriminatory denial of education, health care, employment, and political participation, women and girls are not experiencing "culture"—they are experiencing human rights violations.

Violence against Women and Girls

Threats and attacks against women and girls in Afghanistan are common, including against high-ranking government officials, parliamentarians, human rights activists, schoolgirls, and teachers.[21]Although comprehensive government statistics on the prevalence of violence against women in Afghanistan do not exist,[22] a 2008 report on domestic violence presenting survey findings covering 4,700 households across 16 out of Afghanistan’s 34 provinces, found that 87 percent of women reported that they had at some point experienced at least one form of sexual, physical, or psychological abuse, and 62 percent reported more than one form of abuse at home.[23] Over half of the women interviewed (52 percent) said that they had experienced physical violence, and 39 percent said that their husbands had hit them in the past year.[24]

This violence is exacerbated by the absence of places for women to turn for help when their safety and lives are threatened by abuse. Many women who experience violence in their homes suffer in silence, hoping the violence will end.

Some are murdered by family members or in-laws. “Honor killings” are a frequent occurrence in Afghanistan, and many women and girls interviewed for this report told Human Rights Watch they had been threatened with, or believed they were at risk of being killed by members of their families or in-laws. [25]

Prevalence of Forced and Underage Marriage

According to the UN, as of 2008, 70 to 80 percent of marriages in Afghanistan were forced, taking place without full and free consent or under duress.[26] Another study found that 59 percent of women had experienced forced marriage.[27] Not surprisingly, the overwhelming majority of married women and girls interviewed for this report say that they did not marry by choice.[28]

Many unmarried women and girls said they ran away from their families in order to avoid imminent forced marriage. Only 5 of the 31 married women we interviewed in prisons described their marriages as having been by choice. While 6 of the 11 married girls we interviewed in juvenile rehabilitation centers said they had married a person of their choosing, their having done so was often the reason for their arrest.

Marriage arrangements are made by the families involved and the girls typically are given no chance to object or refuse. Often they meet their husband on their wedding day and then immediately move to his household, where hostility and physical and emotional abuse from the husband, his other wives, or his family are common.[29] Lacking any alternative, most girls in this situation accept their lot and survive as best they can.

The legal age for marriage under Afghan law is 16 for girls and 18 for boys.[30] A girl who is 15-years-old can be married with the consent of her father or a court.[31] The law prohibits, under all circumstances, the marriage of a girl who is younger than 15.[32] The UN Committee on the Rights of the Child and the Committee on the Elimination of Discrimination against Women have concluded that 18 should be the minimum age for marriage for both sexes.[33]

Nonetheless, underage marriage is commonplace in Afghanistan, with 17.3 percent of 15 to 19-year-old girls married.[34] UN statistics from 2008 showed that 57 percent of marriages involved at least one party under the age of 16.[35] Most married women and girls interviewed for this report were married before the age of 18. Among the women interviewed, the youngest reported age of marriage was 10-years-old and the oldest age of marriage was 20.

Only four of the married women said that they had married at the age of 18 or older. Of married girls interviewed in juvenile rehabilitation centers, seven said they had married before the age of 16; the youngest age of marriage reported was 12. Many of the women and girls reported being engaged to be married at birth or at a very young age, usually through the types of baadal arrangements described below. Afghanistan’s exceptionally high rate of maternal mortality—every two hours an Afghan woman dies of pregnancy-related causes—is partly related to girls giving birth before their bodies have developed fully.[36]

Under the Law on the Elimination of Violence Against Women, both forced and underage marriage are illegal and parents, relatives, or others who arrange forced or underage marriages are subject to prosecution and imprisonment.[37] Underage marriage is prohibited by the EVAW law and is punishable by two to five years of imprisonment.[38] Forced marriage is a crime under the EVAW law and punishable by one to two years of imprisonment.[39]

Traditional Practices of Baad and Baadal

Incidents of baad and baadal came up numerous times in research conducted for this report. In baad and baadal, practices traditional in some parts of Afghanistan, unmarried girls are given or exchanged to resolve disputes or stand in place of a dowry.[40]

Baad typically occurs in the context of a past crime or local conflict: the family of the wrongdoing party resolves the matter by giving an unmarried girl or girls to the family that has been wronged. Girls given as baad frequently face serious abuse in the receiving family since they are perceived as atoning for the wrong committed by their family member (who is almost always a male).[41]Baadal, by contrast, is an exchange of girls between families, each married to a male member of the other family, and often agreed on when the girls in question are very young. One purpose of baadal is to remove the obligation of both families to pay a dowry to facilitate marriage for their child.[42]

Both baad and baadal frequently lead to forced and child marriages, which are prohibited under the EVAW law.[43]Baad is also specifically prohibited by the EVAW Law, and is punishable by 5 to 10 years of imprisonment.[44]Baadal is a crime under provisions of the EVAW Law that criminalizes underage marriage and forced marriage in cases where it involves a girl under 16 (or 15 if her father or a court have given consent), or occurs without her consent.[45]

[8]Constitution of the Islamic Republic of Afghanistan, ratified January 26, 2004, http://moj.gov.af/en/page/1684 (accessed March 10, 2012), arts. 83-84.

[9]Afghanistan acceded to the Convention on the Elimination of All Forms of Discrimination against Women on March 5, 2003 without reservations.

[10]For example, in January 2002 Karzai, as head of the Interim Administration, demonstrated his support for women's rights by signing the "Declaration of the Essential Rights of Afghan Women", which affirmed the right to equality between men and women. United Nations Commission on the Status of Women, “Discrimination against women and girls in Afghanistan: Report of the Secretary-General,” January 28, 2002, http://www.un.org/events/women/2002/ecn620025eng.pdf (accessed March 16, 2012).

[11]Afghanistan Mortality Survey 2010, Afghan Public Health Institute, Ministry of Public Health, November 2011.

[12]Ashley Jackson, “High Stakes: Girls Education in Afghanistan,” Oxfam, February 24, 2011, p. 4.

[13] UNAMA, “A Long Way to Go: Implementation of the Elimination of Violence against Women Law in Afghanistan,” November 2011, p. 20.

[14]A frequently used and controversial article of the Afghan Constitution permits the enactment of laws by presidential decree. Article 79 states: During the recess of the House of Representatives, the Government shall, in case of an immediate need, issue legislative decrees, except in matters related to budget and financial affairs. Legislative decrees, after endorsement by the President, shall acquire the force of law. Legislative decrees shall be presented to the National Assembly within thirty days of convening its first session, and if rejected by the National Assembly, they become void.

[15]One significant gap in the EVAW Law is that it places pressure on victims by permitting them to withdraw charges and end the prosecution at any point. Law on the Elimination of Violence Against Women, August 2009, art. 40(2). Another is the failure to provide clear definitions of crimes, including the elements of each offense.

[16]Hillary Clinton, “New Hope For Afghanistan's Women,” Time Magazine, Nov. 24, 2001.

[17] Laura Bush, presidential radio address, November 17, 2001, http://www.presidency.ucsb.edu/ws/index.php?pid=24992#axzz1ng0OpGHL (accessed February 28, 2012).

[18]“Afghan women looking for a voice,” CNN, November 23, 2001.

[19]“France’s Commitment in Afghanistan: A synergy of civilian and military actions,” France at the United Nations, http://www.franceonu.org/spip.php?article4042 (accessed February 26, 2012).

[20]UN Secretary-General Kofi Annan in his statement to the Afghan Women's Summit for Democracy, Brussels, 4 December 2001, http://www.un.org/events/women/2002/sit.htm (accessed March 16, 2012).

[21] Afghanistan’s state justice system functions alongside a parallel traditional justice system, through which community elders convene in meetings known as jirgas or shuras to consider issues including disputes within their community. These traditional justice mechanisms are often involved in resolving problems within families, including cases of “running away” and zina, as well as divorce and child custody issues. A number of women and girls interviewed for this report discussed ways in which their situation had led them to deal with community elders and the traditional justice system as well as the state justice system. While some of the women and girls described good experiences with traditional justice mechanisms, others had negative experiences. A general concern about the traditional justice system is that it discriminates against women and at times uses abusive practices, such as baad and even execution by stoning. For example, UNDP Human Development Report, “Bridging modernity and tradition: The rule of law and the search for justice,” 2007, http://hdr.undp.org/en/reports/nationalreports/asiathepacific/afghanistan/nhdr2007.pdf (accessed March 16, 2012).

[22] UNAMA, “Afghanistan has ‘long way to go’ in protecting women from violence – UN report,” November 23, 2011, http://www.un.org/apps/news/story.asp?NewsID=40491&Cr=violence&Cr1=women (accessed February 22, 2012).

[23]Global Rights: Partners for Justice, “Living with Violence: A National Report on Domestic Abuse in Afghanistan,” March 2008, p. 13.

[24]Ibid., p. 14.

[25]For more on “honor killings,” see UNAMA and OHCHR, “Silence is Violence: End the Abuse of Women in Afghanistan,” July 8, 2009, http://unama.unmissions.org/Portals/UNAMA/vaw-english.pdf (accessed March 18, 2012).

[26]UNIFEM, “UNIFEM Afghanistan Fact Sheet,” 2008, http://www.wunrn.com/news/2009/08_09/08_17_09/081709_afghanistan.htm (accessed February 22, 2012).

[27]Global Rights: Partners for Justice, “Living with Violence: A National Report on Domestic Abuse in Afghanistan,” March 2008, p. 14.

[28]A paper by the Afghanistan Research and Evaluation Unit makes the point that it is not entirely accurate to view marriages in Afghanistan through a dichotomy of forced versus not forced and that a more realistic perspective is to see marriages as falling at different points along a continuum from choice to force. This point was reflected in many of the accounts Human Rights Watch obtained while preparing this report, as many of the married women and girls interviewed exercised little or no choice in the arrangement of their marriage. See also, Deborah J. Smith, “Decisions, Desires and Diversity: Marriage Practices in Afghanistan,” Afghanistan Research and Evaluation Unit Issues Paper Series, February 2009, http://www.areu.org.af/Uploads/EditionPdfs/905E-Marriage%20Practices-IP-web.pdf (accessed February 22, 2012).

[29]Afghan law permits a man to have more than one wife. A number of women interviewed for this report married men who already had wives, thus becoming second or third wives. Tensions over the husband taking another wife and poor relations between a new wife and an existing wife and her children were sometimes a cause of abuse and unhappiness.

[30]Civil Law art. 70.

[31]Civil Law art.71(1).

[32]Civil Law art.71(2).

[33]CEDAW, “General Recommendation No. 21, Equality in Marriage and Family Relations,” (Thirteenth Session, 1994), para. 36; UN Committee on the Rights of the Child, “General Comment No. 4, Adolescent Health and Development in the Context of the Convention on the Rights of the Child,” (Thirty-third session, 2003), para. 20.

[34]Afghan Public Health Institute, Ministry of Public Health, “Afghanistan Mortality Survey 2010,” November 2011, pp. 51. This study includes some hopeful signs that the average age of marriage for young women is increasing. Ibid., pp. 51-53.

[35] UNIFEM, “UNIFEM Afghanistan Fact Sheet,” 2008, http://www.wunrn.com/news/2009/08_09/08_17_09/081709_afghanistan.htm (accessed February 22, 2012).

[36]See, for example, CeShena and John B. Williamson, “Maternal mortality, women's status, and economic dependency in less developed countries: a cross-national analysis,” Social Science & Medicine 49 (1999), pp. 197-214.

[37]Because EVAW was adopted only in late 2009, forced marriage and underage marriage that occurred before this date were not prohibited under Afghan law. However, many of the women and girls interviewed for this report provided accounts of forced or underage marriages that occurred after the adoption of the EVAW law.

[38]EVAW Law, art. 28. The EVAW Law frequently refers back to the criminal sentences already set forth in the Penal Code, 1976. Most offenses prohibited by the Penal Code are punishable by “short,” “medium”, or “long imprisonment.” Under Penal Code articles 100-102, short imprisonment is less than one year; medium imprisonment is between one and five years; long imprisonment is 5 to 15 years. Within these ranges, the law may provide further specificity in regard to a specific offense. For example, the provision of the EVAW Law that prohibits underage marriages specifies that a person who commits this crime “be sentenced to medium imprisonment not less than 2 years.”

[39]EVAW Law, art. 26.

[40]In Afghanistan, while there is variety in dowry practices, a groom’s family is usually obliged to give a dowry to the bride’s family.

[41]For more information about baad, see “Harmful Traditional Practices and Implementation of the Law on Elimination of Violence against Women in Afghanistan,” UNAMA, December 9, 2010, and “Afghanistan: Stop Women Being Given as Compensation, Implement Elimination of Violence Against Women Law,” Human Rights Watch news release, March 8, 2011, http://www.hrw.org/news/2011/03/08/afghanistan-stop-women-being-given-compensation (accessed March 3, 2012).

[42]For a more detailed explanation of the practice of baadal, see UNAMA, “Harmful Traditional Practices and Implementation of the Law on Elimination of Violence against Women in Afghanistan,” December 9, 2010, pp. 15-18.

[43]EVAW Law, art.28.

[44]EVAW Law, art. 25.

[45]EVAW Law, arts. 26 and 28.