IV. VIOLATIONS OF WOMEN'S AND GIRLS' HUMAN RIGHTS IN HERAT
Ismail Khan and his government control virtually all aspects of women's and girls' lives in Herat, on the street, in schools and workplaces, and even in their homes. By controlling the media, most civic organizations, most forms of employment that would be open to women, and education, Ismail Khan is able to dictate whether and how women and girls have access to these arenas. He has used this power to keep women and girls out of many forums, to suppress free speech and associations (especially related to women's rights), and to regulate women's and girls' dress and behavior. By restricting their freedom of movement, he has also made it much more difficult for women and girls to access the few areas, such as schools and some jobs (teaching and a few other government posts), that are left open to them.
Ismail Khan dictates women's and girls' behavior through announcements in public speeches, on Herat radio, television, and the only daily newspaper in Herat, Ittifaq-e Islam. His government officials-for example in the Department of Education, the Traffic Office, and the Department of Information and Culture-enforce restrictions on women and girls. In addition, police and teachers monitor women and girls' behavior and appearance. Reminiscent of the Taliban's Ministry for the Promotion of Virtue and the Prevention of Vice, Herat police can arrest men and women whom they deem to be behaving immorally, and have trained squads of adolescent school boys to spy on women and girls.59 Around October 7, 2002, Ismail Khan met with the boys and reportedly "told them not only to work for safety but to monitor `Islamic values.' . . . to work all over the city."60 He reportedly said:
A Herati explained to Human Rights Watch how the boys squads function:
Almost all women and girls in Herat city whom Human Rights Watch interviewed said that they wanted quality education and decent work, that they wanted to be able to move around freely without harassment and fear of arrest, and that they wanted to chose for themselves how to wear their hijab (as a headscarf, chadori, or burqa). Many said they wanted to be active in the public sphere and that they wanted to be able to speak freely about the government. Most of all, women and girls told us they wanted to participate in the decisions that affect them. As one Afghan woman explained, "We want to live as humans. This is our right to live like humans because we are human just like men."63 The government of Herat and Ismail Khan have an affirmative obligation to ensure these rights.
International law provides all individuals, male and female, with the rights to freedom of expression, association, and movement; to equality, work, and education; and to privacy, sexual autonomy, and bodily integrity, including freedom from cruel, inhuman, or degrading treatment. Essential to protecting these rights is the ability to participate in the conduct of public affairs. Afghanistan's 1964 constitution, which under the 2001 Bonn Agreement is currently in effect until another constitution is approved, also guarantees a number of rights to Afghan citizens.64
Ismail Khan's government has denied women and girls the enjoyment of fundamental rights exercised by men and boys. Discrimination on the basis of sex is prohibited by the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC), to all of which Afghanistan is a party.65 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which Afghanistan has signed, defines discrimination against women as:
CEDAW obliges states to "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"; and to "take all appropriate measures to eliminate discrimination against women."67 In addition, Afghanistan is a party to the Convention on the Political Rights of Women, which provides that: "Women shall be entitled to hold public office and to exercise all public functions, established by national law, on equal terms with men, without any discrimination."68
Afghanistan's 1964 constitution provides in article 25: "The people of Afghanistan, without any discrimination or preference, have equal rights and obligations before the law."
Violations of Freedom of Movement and Associated Violations of the Right to Bodily Integrity
Women and girls' freedom of movement is severely restricted in Herat city and has become even more so in the second half of 2002. Women and girls who break the rules risk being harassed, threatened, arrested, or, as an extreme consequence, being forced to undergo a gynecological examination.
In order to leave their homes, women and girls face considerable hurdles. Unlike under the Taliban, during the day they can go out without being accompanied by a close male relative (mahram). However, they may not walk or ride in a car alone with a man or men to whom they are not closely related. Women cannot drive cars, and they do not ride bicycles. (Even if these acts were permitted, they would be impossible wearing a burqa.) Ismail Khan has prohibited Herati women and girls from riding in cars with foreign men at all.69 The impact of these restrictions is heightened by the fact that in Herat, public transportation is inadequate or non-existent, leaving women and girls with almost no alternatives for moving around.
In addition, when they leave their homes, women and older girls must wear a burqa or chadori, which impedes their ability to walk; if they go without it, they may be harassed and threatened by police, other government officials, and private individuals from whom they cannot expect police protection.
Restrictions on freedom of movement significantly interfere with the ability to exercise a range of other human rights: to go to school, to work, or to the market to buy food and other goods, or to seek medical care. For example, a woman who attended Herat university explained, "It is difficult for girls to come on time [to Herat university] because there are no regular buses. Sometimes three or four will share a taxi. If they can't find a taxi, they don't attend."70 (Since all taxi drivers are male, taking a taxi to the university alone would make her subject to arrest if the driver is not a relative-see below.)
In October 2002, the Herat Council of Scholars and Clerics, a new semi-governmental body, issued an edict entirely banning women from visiting Herat's public parks at night.71 A Herat resident confirmed:
Another Herati woman told Human Rights Watch in November 2002 that she believed that women and girls cannot go out alone at all at night.73
Article 12 of the ICCPR guarantees the freedom of movement. The Human Rights Committee, which interprets the provisions of the covenant, has specifically found that "measures preventing women from moving freely . . . by requiring them to have the consent or the escort of a male person constitute a violation of article 12."74 The committee has also found that states must protect women, especially, from private as well as public interference with the freedom of movement, noting that "it is incompatible with article 12, paragraph 1, that the right of a woman to move freely and to choose her residence be made subject, by law or practice, to the decision of another person, including a relative."75 Afghanistan's 1964 constitution states that: "Every Afghan is entitled to travel within the territory of the state."76
Women and girls caught walking with men on the street, riding with men in cars, and alone with men in private homes are arrested by police. Arrest can be followed by an abusive gynecological examination at Herat hospital to look for evidence of recent sexual intercourse. Heratis report that with increasing frequency, police are arresting both young girls and married women, males and females in private homes, women traveling alone in taxis with the driver, and boys and girls seen talking or walking together on the street.77 Although police ostensibly target unrelated individuals, Human Rights Watch has received several reports of relatives being arrested as well.
This practice is official government policy, not unsanctioned acts of individual police: police are mandated to monitor relations between males and females, they process detainees at the police station, and they record the arrest and examination in an official document. According to a Herati familiar with the situation:
The Herat criminal branch has a subgroup devoted to following people around the city. They are concerned with monitoring their behavior, from the point of view of morality. They are arresting both males and females-they can even go into private houses. . . . They follow people who walk in the streets, follow them home. They are especially paying attention to girls and boys who talk with each other.78
A woman confirmed, "Yes, this is true . . . women and girls can't be alone in a car with men who are not family members. . . . [Y]oung girls [are] afraid of this situation to take taxi by themselves. . . . [I]f they want to go somewhere with mahram at night, it's okay but if they want to go lonely [sic] they will be arrested by police."79
A doctor at Herat's only hospital told Human Rights Watch that as of October 2002, police were taking about ten girls and women daily to the hospital for gynecological examinations to determine whether they had recently had sexual intercourse.80 According to the doctor, the exams are conducted in the maternity ward "by a doctor with two female nurses present."81 Another doctor confirmed that the examinations were being conducted, but disagreed about their frequency. "It is 100 percent true," he said. "It is testing as to `has this woman had sexual intercourse in the last hour?' . . . But the cases are limited-only one or two cases a day."82
Human Rights Watch was not able to learn whether any women have been prosecuted on the basis of these medical examinations. However, in Herat, as in Kabul and elsewhere in Afghanistan, women and girls are being jailed and prosecuted for sexual relations outside of marriage and for trying to leave their husbands, even when the marriages were forced or the husband is abusive.83
Because of the extreme shame surrounding any allegations of sexual impropriety, it is difficult to collect information about this practice. For example, a Herati who has tried to document forced medical examinations told Human Rights Watch, "No one will talk to me. No one will tell me anything. Everyone is afraid. No one wants to speak about this with me."84 However, Human Rights Watch was able to collect information from a variety of independent sources: from relatives of examined girls and women, from witnesses at hospitals, from medical staff obligated to perform the exams, from government officials, and from others involved in the cases in various ways. Identifying details have been withheld from the following cases in order to protect the privacy of the women and girls involved.
In September 2002, a girl was arrested because she was seen talking with a man in front of her home. A man who was present when she was brought to the hospital described what he saw:
In October 2002, criminal branch police arrested a girl and her cousin in the bazaar. Police brought the girl to the maternity ward where many people witnessed the event, which, according to one witness, was conducted with "so much noise and commotion that all the patients and their visitors (at least one hundred people) learned of the incident and were pointing out the poor girl to one another."86 Two doctors performed a "chastity examination" and determined that the girl was "perfectly healthy and untouched."87 Criminal branch police then filled out an "official report" recording the date and time of the examination and that the girl "was found to be healthy and chaste."88 Four doctors signed the report.89
As already noted, the prohibition on women and girls riding alone in cars with men who are not close family members includes taxi drivers who, in Herat, are all male. According to the relative of a woman who was arrested and subjected to a forced medical examination: "It's a ordinary thing in Herat-when a woman is alone with a driver in a car, then the police stop them and ask them questions-are they relatives, etc.?"90
In August 2002 at a main intersection in Herat city, police forces stopped a twenty-year-old woman riding alone in a taxi. According to a person familiar with the case:
The taxi driver was taken to the police station.92 When Human Rights Watch asked what happened to the driver at the station, the person familiar with the case responded: "Well, you were in Herat, and you know that whoever enters into the criminal branch will not be released without a severe punishment."93 (Human Rights Watch documented in our previous report on Herat that the criminal branch of Herat's police department routinely beats and tortures detainees.94)
In September 2002, police from the criminal branch arrested a married woman carrying her infant because she was being driven by a man who was not her husband.95 The woman was forcibly examined in the hospital and detained for three nights, during which time she was not allowed to feed her baby, who was not yet weaned.96 She was not charged with a crime and was released only after several influential Heratis intervened.97
Police have even arrested individuals in private homes. In early October 2002, police arrested a boy and a girl, who were relatives, in a family member's home. According to a Herati familiar with the incident, police entered the home and found the boy and the girl together in one room, and other family members in another. The police questioned the pair and they responded, "We are relatives and we are talking. What is the problem?"98 The police nevertheless arrested them and took them to the police station.99 There the police obtained the document for the gynecological examination, and took the girl to the hospital to be examined.100 At the police station, the boy reported, he was beaten, slapped, punched, and kicked.101 "They have insulted me, abused me, and said all sorts of bad intolerable words to me," he reportedly said.102
Ismail Khan not only enforces restrictions on women's and girls' freedom of movement with his own officials and the boys squads, he also encourages private citizens to do so as well. In November 2002, Ismail Khan announced on the radio and Herat television:
The ICCPR and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment protect individuals from cruel, inhuman, and degrading treatment; ensure the right to bodily integrity; and require states parties to protect these rights without discrimination of any kind.104 Under the Afghan Constitution the "state has the duty to respect and protect the liberty and dignity of the individual. . . . Imposing punishment incompatible with human dignity is not permissible."105
The forced gynecological examinations described here constitute cruel, inhuman, and degrading treatment and are gross violations of bodily integrity. Conducted in a coercive setting, against women and girls' will, and with no medical justification, the examinations are themselves a form of sexual abuse. They are degrading and intimidating, both as a physical violation and for the threatened consequence of prosecution and loss of family honor.106 Regardless of the doctor's findings, the mere act of performing the exam constitutes significant punishment, even more so when it is done in a way that attracts public attention as in the case described above. A person who witnessed a woman being forced to submit to an examination at Herat's hospital explained, "I really felt pity for the poor girl who was so humiliated and her family who was also thoroughly humiliated."107
The Herat government is, in effect, policing women's and girls' sexuality. International human rights law increasingly recognizes a woman's right to sexual autonomy, including the right to be free from nonconsensual sexual relations, even within marriage, and the right to engage in consensual sexual relations without coercion or the threat of violence.108
Moreover, forced gynecological examinations solely to determine whether a woman or girl has had sexual intercourse redirects scarce resources from medically necessary procedures, particularly concerning maternal health care. A 2002 study by Physicians for Human Rights found that women and girls in Herat Province
Fewer than 1 percent of women and girls in Herat give birth attended by a trained health care worker.110 According to the study, in Herat hospital "instrument sterilization consists only of boiling" and the hospital "has inadequate, outdated equipment and inadequate supplies of essential medicines and materials for surgical procedures."111 In this context the use of medical workers' time, expertise, and equipment for forced gynecological examinations is unconscionable. In a situation where hundreds of thousands of Afghan women and girls are dying each year from lack of access to medical care-nationwide an estimated 87 percent of the estimated annual 515,000 maternal deaths are preventable112-the practice violates Herati women's right of access to health care.113
Although most Herati women do not know how to drive, or do not have access to a car, those who do are still not permitted: the local government will not issue driver's licenses to women, and Herat city police have arrested women for driving.114 Although many women and girls hoped that with the Taliban's departure they would be permitted to drive, Ismail Khan's government has made it clear that it will tolerate no attempts to challenge the policy. In September 2002, the director of Herat's Traffic Office, Darhargarnal Hafizullah, told an Afghan man who came to ask about getting a license for his wife: "Right now women are not allowed to drive. Unfortunately in Herat city, we don't have the licenses to issue for women. We have asked Kabul to send some."115 He then cautioned, "I advise you as a friend, for many reasons, she should not drive right now."116
A woman who learned to drive in Iran told Human Rights Watch: "I cannot drive in Herat even though I know how. I love driving and I want to go everywhere by myself, but I can't because the government doesn't let us."117
Women who have tried to get driver's licenses have been rebuffed. Around late June 2002, a group of woman who knew how to drive applied to the Herat Traffic Office. As of September 2002, they had not been allowed to take the driver's test, and a government official informed them that they would not be allowed to do so. One woman told Human Rights Watch:
In July or August 2002, a professional woman who had obtained special permission to drive was stopped by police who took away her special license and tried to take her to the police station.119 A widow with a disabled child and elderly mother-in-law, she had no one to drive her to work or to do shopping, or to take her children to school. According to a witness, the woman was returning home in the late evening with her children when armed police forces stopped her in front of her house, asked her why she was driving, and confiscated her license. She was not wearing a burqa or chadori. A crowd gathered, her brother was notified, and he came to the scene and challenged the police. The police officers ordered them to go to the police station; the women went into her home and her brother went to the station. However, he was not able to persuade the police to return her license, and she stopped driving entirely. 120 Human Rights Watch did not interview this woman but confirmed these events from other sources.
This incident is well known in Herat, and women told Human Rights Watch that it specifically-and fear of their own arrest-has deterred them from challenging the government's prohibition on women driving. For example, a woman with access to a car and whose family would support her told Human Rights Watch:
Another woman said:
By comparison, even in Kabul, where there is no official prohibition on women driving, government officials have been reluctant to grant private organizations permission to hold driving classes for women, and armed men have stopped driving instructors and questioned them about their relation to the girls and women in the car.123 An official in the Kabul government laughed when Human Rights Watch raised with her the issue of driving. "I am a [high-ranking government official] and even I haven't dared to drive in Kabul since I got here five months ago," she said. "And I drove for six years in Pakistan."124
Violations of Freedom of Expression and Association
Many women and girls in Herat city expressed a strong desire to participate in their country's civil and political life, and to be able to speak freely, both publicly and privately. They want to participate in the political discourse and have a voice in governmental decisions-especially those that affect them.
One of the most egregious aspects of the Taliban's rule was its attempt to erase women's participation in society. The situation has improved, but only slightly. As it stands, Ismail Khan is not allowing women or men to take part in most decision-making processes, but this repression is falling doubly hard on women, who face both the general political repression of Ismail Khan's regime, and his targeted repression of women. Very few forums are open to women in Herat, and those that are open are effectively controlled by Ismail Khan. He and his agents-almost all men-decide what rules govern women's and girls' lives. Some rules are aimed at keeping the sexes separate. These affect women and girls differently than men because it is women and girls who are excluded from governing bodies where decisions are made, from civic and cultural activities, from work, and from equal education. Women and girls also face different consequences of breaking these rules than do men.
Ismail Khan and his government have almost complete control of public speech-in the press, civic associations, the university, and the workplace. Human Rights Watch's November 2002 report, "All Our Hopes are Crushed," documented that Ismail Khan and his government since taking power have not allowed the formation of independent media or associations, tightly controlling the activities of the few organizations and media that exist.127 Ismail Khan has restricted speech about his government, about his troops, and about any other topics he chooses-especially women's rights. Women along with men were harassed and intimidated for participating in the loya jirga process in May and June 2002.128 Members of the few civic organizations, such as the Professional Shura, have been intimidated to censor all criticism of the government from their speech and writings.129 Women who have challenged these policies have been publicly and privately castigated by government officials and been called "un-Islamic," a serious charge in the increasingly fundamentalist climate. They have also been prohibited from speaking publicly or to journalists about women's rights, and fired from their jobs or threatened with being fired. "We are very afraid," one woman said on the condition of anonymity.130 "It is difficult for us to say things about or against the government because it will create problems for us. . . . We are under pressure from the [Herat] government, and we can't say anything against it."131
This section focuses on intimidation and repression targeted specifically at women and girls and activities around women's rights.
Ismail Khan has been particularly hostile to women and girls' organizations with some capacity to address even vaguely political issues, as opposed to strictly humanitarian organizations (such as those that teach literacy and handicrafts). Within these organizations, Ismail Khan and his agents have especially targeted speech about women's rights. Symbolically, in March 2002, Ismail Khan cancelled a celebration of International Women's Day, to which five hundred guests were invited, the day before the event was scheduled to take place.133
A woman who chose not to join the shura explained: "Ismail Khan didn't want a Women's Shura to exist, but when [he allowed it], he selected the head of it himself. After he had selected the head, we couldn't give our ideas freely."136 Even those who have chosen to participate in the Women's Shura concede that it is controlled by Ismail Khan. "The president was appointed by the government," one member told Human Rights Watch.137 "It's not private, it's under the government's control. Some person from the government attends each meeting," said another member.138 Other members confirmed that Ismail Khan or his officials attend and monitor the shura's meetings.139
At the shura's first meeting, Ismail Khan personally defined what the organization's mission should be. Herat television reported: "The general Emir of the southwest zone during a speech clarified the role of the Shura's women in the rehabilitation of the country, the rehabilitation of deprived women, and solving family problems, then listened to the opinions and suggestions of women and gave clear answers to their questions."140
Although it might be expected that the Women's Shura would address issues of women's rights, Ismail Khan's handpicked leadership has shut down this kind of speech, especially where it has included criticism of his government's policy. For example, at one meeting, a participant disagreed with Ismail Khan's assertion that Afghan women enjoy many rights compared with women elsewhere in the world.141 The shura's leaders chastised her for contradicting Ismail Khan and said that she "shouldn't talk because he is the leader and everything he says is right."142 In another example, after another shura member spoke with a journalist about women's rights and the Women's Shura, the head of the shura ordered her not to speak with journalists.143 Human Rights Watch also interviewed a woman who said that she was not invited to join the Women's Shura because of her political participation in the Professional Shura.144
The retaliation women and girls have experienced for speaking about women's rights has had a chilling effect and caused both women and men to censor themselves. For example, the Women's Shura decided to discuss the issue of self-immolation-where women in forced and abusive marriages are reportedly committing suicide by dousing themselves with cooking fuel and setting themselves on fire.145 Ismail Khan participated in the meeting and, according to a woman who was present, "He said that these kinds of girls are not brave and don't have the capacity to struggle against problems in their families. They are not good women."146 Some women disagreed, believing that the government should protect women and girls in abusive, forced marriages, but were afraid to speak publicly. "I can't say things freely, and I can't say the truth," one participant explained.147 Others who were trying to address the problem of self-immolation said that they were not able to say publicly that the government should do anything about the forced and abusive marriages, such as provide legal protection, but instead were forced to follow the government position that it is the girls and women's fault, who thus must be urged not to commit suicide.148
A woman who was verbally chastised and told not to speak again by Ismail Khan's representatives in August or September 2002 for speaking publicly about restrictions on women said to Human Rights Watch:
As a consequence, some have chosen not to participate or have dropped out. The participant who disagreed openly with Ismail Khan said:
According to a former member:
A university student explained her frustration: "There is no individual group or women's association except the Women's Shura established by Ismail Khan. I don't participate in it-I don't like to go to Ismail Khan and talk about these things."152 Another student explained: "I am not part of the Women's Shura because that shura is entirely dependent on the government and is close to the government and the government's policy, and nobody can say anything that they feel."153 When asked if the Women's Shura could represent their interests, a group of students who had attended some meetings said, "No. Maybe in the future we will participate and give ideas, but not now."154
Following the publication of Human Rights Watch's first report on Herat in November 2002, documenting political intimidation and violence and the denial of freedom of expression, the Women's Shura issued a statement that: "We, the women of Herat, sternly reject the claim of Human Rights Watch. All men and women have legal rights and freedom in Herat, which has been the pioneer in rehabilitation, education and social activities since the mujahidin first won victory."155
The Herat Literary Society
However, since returning to power, Ismail Khan and his officials have limited women's and girls' participation and have sought to control the content of the society's work. About a month after Ismail Khan came back into power, the society held a large meeting at a hotel in Herat. A participant described what happened:
At approximately the same time, a group of girls petitioned Ismail Khan for permission to form a girls' section of the literary society. Ismail Khan refused.158 Then a group of boys and girls attempted to form a youth section of the society. One of the members said that:
As with the Women's Shura, the government has pressured the literary society to avoid the subject of women's rights. In July or August 2002, there was a meeting of literary society members and officials from the Ministry of Social Affairs. Ismail Khan's son was also there. At the meeting, a literary society member read an article she had written about women's rights. According to a person who was present, the member said that, "Men and women are the same, and their rights are the same, and women should go out and find jobs and live in society. There is no difference between women and men, and women should find jobs in the highest posts."160 Government officials responded by accusing her of being un-Islamic, a serious charge which implicates her honor and could potentially result in her being ostracized. Then, after the meeting, officials pressured the literary association to censure further discussion of women's rights, and the speaker was told not to write articles of this type in the future.161 The witness told Human Rights Watch:
As a result of pressure from Ismail Khan's government, various members, both male and female, who took grave risks to participate in the literary society during the Taliban period told Human Rights Watch that since the loya jirga they had stopped participating. Some have gone to Kabul or other places seeking greater freedom and safety. Others found their hopes after the Taliban's fall unfulfilled and were simply too discouraged to continue. In September 2002 the long-time head of the society resigned.163 The new head told members:
Women also reported that they could not speak freely at work and, especially, could not criticize the government. Women teachers at all grade levels employed by Herat's department of education told Human Rights Watch that they are afraid to challenge government policies related to their work, for example, that they observe very strict hijab and avoid contact with foreigners. One teacher told Human Rights Watch:
The Herat department of education did, in fact, fire a school administrator who refused to stop classes for students to attend a military parade.167 Aziza Sayi, the deputy of female education in the department of education, also chastised the administrator, saying she "was not an Islamic woman."168
Women working for international NGOs also said that they are under government scrutiny and have been warned by Ismail Khan how to behave (see below): "You cannot say the reality-you have to be so diplomatic. You have to wear a mask. It's difficult. You are pretending to be someone else."169
The Herat government and the conservative university chancellor appointed by Ismail Khan tightly control speech in Herat's university, especially that of female students. Rather than the university being an environment in which ideas are exchanged and debated, women told Human Rights Watch that they could not write or speak freely about women's rights in their classes, that the chancellor had punished students who spoke publicly about women's rights, and that professors are afraid to discuss politics as it is expressly forbidden. (See below.)
Similarly, a shura member reported, "Whenever we have a party or meeting, the director of the T.V. station will say, `Hurry up and put on your chadori and cover your hair because it creates problems for us!'"172 Another person present at the meeting confirmed: "The cameraman went around saying `You should cover your hair.' It was not comfortable to read or speak [in this environment]."173
Around the same time, the station's director imposed similar restrictions on secondary school girls. According to a teacher:
In the second half of 2002, when women appeared in films and other foreign programs not wearing complete hijab, Herat television began substituting a blank screen or an image of flowers for as long as the woman appeared in the picture.
The right to freedom of expression is set out in article 19 of the ICCPR: "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kind. . . ."175 As stated in the convention, the right includes both verbal and non-verbal expression. The right to freedom of association is set out in article 22 of the ICCPR. States may restrict expression and association for reasons including national security, public order or morals, but only to the extent provided by law and as strictly necessary.176 Even then, as the Human Rights Committee, the international body responsible for interpreting the obligations of the ICCPR, has made clear: "when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself."177
Afghanistan's 1964 constitution also provides for the rights to freedom of expression and association. Article 31 protects the freedom of expression:
Article 32 protects the freedoms of assembly and association:
Almost all women and older girls in Herat city, when they go outside, wear a burqa, a floor length garment which entirely covers the face and body. The wearer sees through a small screen in front of the eyes but has no peripheral vision.179 Unlike during the Taliban, some women wear the front panel rolled up away from the face, and a few instead wear a floor-length cloth, which in Herat is called chadori, held under the chin, which also entirely covers the head and body but leaves the face exposed. Human Rights Watch researchers neither saw any women or older girls in Herat on the street without burqa or chadori nor interviewed any who said they would go out without either of the coverings. The wearing of burqa or chadori is imposed by police, employers, and school administrators, as well as by some families and private individuals in the street. Women themselves may also elect to wear it; however, many told Human Rights Watch that their decision was motivated by the fear of harassment or even violence rather than meaningful choice.
Although in interviews with Human Rights Watch many Herati women ranked removing the burqa or chadori below the freedom to work, to organize, or to speak freely, almost all consistently expressed a strong desire to remove the garment, or to decide freely whether to wear it. In contrast, most women and girls told Human Rights Watch that if they were able to choose freely, they would still chose to wear hijab that generally consists of loose, long sleeve clothing that obscures the shape of the body and completely covers the arms and legs, and a headscarf of some sort. According to one woman:
Similarly, another woman told Human Rights Watch:
The hijab that most women and girls told Human Rights Watch they would chose to wear is akin to that worn by many Iranian women and places far fewer constraints on mobility than the burqa and chadori, which impede women's ability to live and work outside the home. Indeed, many Heratis have lived in Iran, which borders the province. Women and girls who returned to Herat from Iran after the Taliban fell and who were not accustomed to wearing the burqa expressed particular frustration: "I hate the burqa," a twenty-one-year-old woman stated. "It's hot because there is no hole for breathing. You can't see and you can fall down."182
Although many women and girls might, if given a free choice, choose to wear the burqa or chadori, they are not free to make this choice in Herat.183 Certainly for some women the primary enforcer of the burqa or chadori is the family and concern for their physical safety and reputations. A university student told Human Rights Watch, "I personally have no problems with taking off the burqa, but my family says it is better to keep it on until the situation of the government and Herat becomes better."184 Another woman said, "If we felt secure in Herat, we would take off our burqa. I thought that when Zahir Shah [Afghanistan's former monarch, who has a symbolic role in the Afghan Transitional Administration] was coming to Afghanistan that I would be able to burn my burqa. But right now we don't feel secure enough to take it off."185
However, other women told Human Rights Watch that they would choose themselves to go out without burqa or chadori, and that their families would support their choice, were it not for the government's mandate. For example, one woman said:
Another women explained: "In my mind it's better that the government make an announcement about the burqa because most women are ready to take it off, but they are afraid of the government. . . . Most want to change, to take off the burqa, but really we are afraid of the government."187
Ismail Khan's government requires girls and women to wear the garment, and creates a climate which effectively sanctions harassment and violence by police and private individuals against women who would dare to go without it. Ismail Khan communicates the message that women should be completely covered through his public speeches and through the media, which as explained above, he controls. According to one woman, "During the loya jirga, Sima Samar [former minister of women's affairs and now head of the Afghan Human Rights Commission] said that it depends on yourself-if you want to take off the burqa you are free to do so. But women in Herat don't obey the Kabul government-they obey Ismail Khan, the head of Herat."188
In his public speeches, Ismail Khan personally instructs women to be completely covered, which Heratis interpret to mean wearing burqa or chadori.189 For example, as discussed below, when Ismail Khan twice called all local women working for international NGOs and the U.N. to a meeting he told them how to dress and behave. A woman who attended reported: "He said, `Keep your hijab and be far from foreign men.'"190
Ismail Khan's government also uses Herat television, the local radio station, and the only daily newspaper, Ittifaq-e Islam, to communicate orders about how women should dress and behave. For example, on October 5, 2002, the evening program was interrupted with the following announcement: "It is now declared to all Herat people that we strongly suggest that women do not put on colorful or vulgar clothes."191 Three nights later the announcement was repeated. In the second broadcast, the orders were attributed to "the Shura of Scholars and Clergy" [Olama va Rohanion], a new semi-governmental group.192 In August, a front page article in Ittifaq-e Islam argued that other problems should be addressed before women's rights in Afghanistan and urged women to cover themselves completely, stay separate from all men outside of their immediate families, and not appear in pictures.193Instructions of this type carry weight: Herati women told Human Rights Watch that they learn how to modify their dress and behavior to avoid problems with the government through government-controlled local radio, television broadcasts, and Ittifaq-e Islam.194 "[We know] from the T.V. and radio. By the persons closest to Ismail Khan, including women, and the commanders. They spread out their orders to others."195 Another woman explained, "Sometimes things are said on the radio or T.V. about women-that women shouldn't work in foreign organizations."196 A Herati man told Human Rights Watch:
Based on these types of messages, a group of four professional women demonstrated to Human Rights Watch how they thought the government wanted them to be dressed indoors, even in private meetings, by roughly wrapping their headscarves low over their foreheads and tight around their necks and pulling their long sleeves down over their wrists. (All four were already dressed in long dresses or skirts with pants underneath, loose, long-sleeve shirts, and headscarves.) Another woman commented on the messages about women in the media: "Last week an article ran on the front page of Ittifaq-e Islam. A man wrote the article about everything that women should do [cover themselves completely, stay separate from unrelated men, etc.] When I read it I felt angry."198 She later added, "Of course, there are lots of articles [in Ittifaq-e Islam] that are disgusting for women. Lots of them."199
Government officials, including Herat's education department, administrators of government schools, and the police, enforce Ismail Khan's dress code for women-in the street, in the workplaces, in schools, and on television. Women and girls' access to these spheres, and their freedom of movement and expression, ability to work and study, and ability to participate in political decisions, are conditioned on their compliance. Although we did not interview any Herati woman or girl harassed by police solely for being on the street uncovered (indeed, every woman and older girl was covered), women and girls told us that they perceived this as a threat: for example, some believed that one reason police stopped and harassed the woman who was driving (in the well-known case described above) was because she was not wearing burqa or chadori. In addition, in September 2002 in a Herat city park, police mistook a Human Rights Watch researcher for an Afghan and aggressively questioned her driver about her attire. (The researcher was not wearing a burqa or chadori but was dressed in dark shalwar kameez and wrapped to the waist in a large scarf that completely covered her hair.) When the police officer determined that the researcher was a foreigner, he ordered the driver to leave the area.
Ismail Khan has given the newly formed boys squads "the right to stop women from `behaving against Islam'-to stop women from singing, dancing, or wearing fancy clothes."200 Private individuals also harass women who would go without a burqa or chadori. A teacher described the following incident from earlier in 2002 when women were more hopeful that the Taliban-era restrictions would be lifted:
In July 2002 an unidentified man with a long beard and a two-way radio, possibly indicating that he was in Herat's police or military forces, stopped a UNAMA vehicle with two female staff inside.202 The man verbally threatened the driver and a female local staff member, who had lifted her burqa over her face but had kept her head covered, and told her to cover her face immediately.203
Herat's education department promulgates a strict dress code for women school teachers that is enforced both by the department and school administrators. A teacher explained:
Another teacher said, "The government is always sending notes to the school to the teachers to keep our hijab. We are already wearing it, so why have notes all the time? I don't like to wear dark and long dresses but what else should we do?"205
Government officials have castigated teachers who have failed to follow the policy and have insisted that they change their behavior. One teacher told Human Rights Watch:
Aziza Sayi, the deputy of female education in the Department of Education, has personally ordered teachers to wear a burqa or chadori. For example, around June 2002 a teacher tried to go around without her chadori, but Aziza Sayi ordered her to put it back on.207 Another teacher confirmed this:
Teachers told Human Rights Watch that they could be fired for violating the dress code.209 When we asked if they had been told this explicitly, a teacher responded "Yes. It depends on the Herat education department, not the ministry in Kabul because the Herat government doesn't obey the capital."210
Girl students must also follow a dress code. Younger girls must wear large scarves;211 older girls and women must wear a burqa or chadori. Even in the all-female classrooms, students are supposed to keep their heads covered. According to a primary school teacher: "Even small girls have to put on a scarf to be in school. They are studying in tents, and it is too hot to wear a scarf but they have to. My office and my [primary] school tell me that the students should put on their scarves."212 The police-trained boys squads also "are monitoring to make sure that girls don't come without burqa or chadori."213
Girls who do not follow the dress codes may be beaten. One student told Human Rights Watch that shortly after the Taliban fell and girls returned to school, she said to her class that they should take off their burqas.214
A teacher reported that in June or July 2002 another school's head director hit two ten-year-old girls with sticks in front of the other students because they were not wearing headscarves.216
University staff also regulates women's dress. The head of the university has prescribed how women should dress, which one woman described to Human Rights Watch as follows: "Girls have to come with hijab, and the scarf should not be too thin but thick. They should wear shoes with quiet heels that don't make a sound. For example, yours [thick rubber soles] are good; mine [hard, narrow heels] are bad."217 Faculty members also enforce these dress codes.
Laws or official policies that require women to wear burqas or chadori violate a number of fundamental rights protected under international law. By applying only to women, the burqa requirement is discriminatory, in violation of articles 3 and 26 of the ICCPR. It is also an arbitrary infringement on the right to privacy under article 17 of the ICCPR, which "protects the special, individual qualities of human existence, a person's manner of appearance, [and] his or her identity."218 The burqa's restrictive nature also implicates the rights to freedom of expression, movement, and association.
Ismail Khan's social restrictions, his refusal to appoint women to key government posts, his public statements on women's role in society, and the overall repressiveness of his government, have the cumulative effect of convincing most women and girls that they are restricted from public employment opportunities, outside of teaching. Although jobs in the government and in foreign organizations might otherwise be expected to be open to women, Ismail Khan has appointed only one woman to a high-level government post and pressured women not to work for international NGOs and the U.N.
Women who can find work are subject to severe restrictions on their speech, dress, and behavior. Because women and girls have so few opportunities for employment compared with men, threats to their jobs carry even greater weight. While economic development in Herat would increase the number of available jobs generally, it will not improve women's access to them as long as Ismail Khan's government continues to impose barriers to women working. Similarly, while cultural attitudes play a role in restricting opportunities for women, these do not excuse additional burdens imposed by the government.
Women and girls in Herat city cited access to work as one of their top priorities in interviews with Human Rights Watch. A seamstress explained: "We need jobs that will increase women's abilities and allow us to work more in society ... But I can't get a job because I don't have any friends or relatives in the government. I hope that someday all women can find jobs easily and not just those who are close to the government."219 According to one woman: "Ismail Khan is always saying, `I have given women rights,' but these are not rights for women because we can't play on the field or work on T.V. programs. He just gives us the right to go to school but not other things-not for work."220 Another woman explained, "In Herat we are just allowed to study in school. The rights of women in Herat are that we can learn in the school, not that we can work because it doesn't look good. Our rights are limited to studying in school, not more."221
The series of conditions imposed by Ismail Khan's officials on women's ability to work includes that they cover themselves completely, stay separated from unrelated men, and do not criticize the government. For example, as explained above, teachers must follow strict dress codes and avoid all contact with foreigners. Afghan women working for international NGOs and the U.N., as well as teachers, told Human Rights Watch that they were afraid to criticize the local government in any way, to shake hands with men, or to be seen having any contact at all with foreign men.222 Around October 8, 2002, an announcement was made on Herat television that: "All the governmental offices should be separated by gender. This should be obeyed in all offices-private, semi-official, government, and nongovernmental offices."223 The orders were attributed to "the Shura of Scholars and Clergy" [Olama va Rohanion], a new semi-governmental group.224
Since the loya jirga, Ismail Khan has especially increased pressure on Afghan women not to work for international NGOs or the U.N. Other than teaching, these organizations offer some of the few jobs available for women, and women who work in them are not infrequently their families' sole supporters. In addition, Afghan women staff are absolutely necessary for humanitarian organizations to have access and provide aid to women.225
Around July and August 2002, Ismail Khan banned Afghan women and girls from riding in cars with foreign men at all, which makes the work of international NGOs and the U.N. more difficult.226 He also called all female Afghan staff of these organizations to attend two meetings. According to a woman who was present at the meeting:
Ismail Khan said to all NGO national women staff, "If you want to work for foreign organizations, be very demure, and do this and that, and be completely hijab. You must never go to the guesthouse of the foreigners."
In August 2002, Ismail Khan in a speech to the police, army, and intelligence forces repeated this message.228 According to a man who attended the meeting, Khan told them: "If you are men and have courage, you will not allow your wife and daughters to work in foreigners' offices. If it's for the money, I will double what they pay, but don't let them work with foreigners." He also said, "If the foreign organizations pay $100, I will double it." 229
Around the same time, Ismail Khan's government sent forms to national staff of NGOs and the U.N. asking for personal information, including name, age, date and place of birth, and education.230 The accompanying instructions directed the employees to fill out the forms and return them to the Herat government. The U.N. and the NGOs decided not to have their staff fill out the forms.231
Herat police have also harassed Afghan women working for international organizations. 232 For example, police have targeted women seen shaking hands and, in some instances, speaking with foreign men. 233
Although Ismail Khan has not actually prohibited women from working for international NGOs and the U.N., the pressure he has placed on them that he has not placed on men-his exhortations that they not work there, his appeals to their family members, and his accusations of moral impropriety-make it much more difficult for women to accept and hold onto these jobs.
In the Herat government, women hold very few positions. There is only one woman in a high level post in Herat, Aziza Sayi, who is a deputy in the department of education, in charge of female education. According to one Herati woman, "Women cannot hold positions in government because the power of weapons is greater than any other power and we don't have this power."234 Many women told Human Rights Watch that government jobs went to relatives and friends of Ismail Khan and his commanders, not to "common people."235
Essentially, Ismail Khan has sanctioned little work for women outside of their homes other than teaching. That he makes it more difficult for them to access work that might otherwise be open to them, for example by the restrictions on women and girls' freedom of movement, has even greater impact because so many other professions are closed to women in Herat. Human Rights Watch interviewed university students who despaired of ever working as lawyers, journalists, or engineers:
Another said, "There are no women working as journalists now. Sometimes I am afraid. I think that when I graduate I will be unemployed."237
A university professor noted: "I don't know of any women working as lawyers in Herat. They can work in the university, and in offices they can be clerks. So they can work. There are no limitations to their working."238 Similarly, a professional women said:
The International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Afghanistan is a party, establishes a right to work and to be free from discrimination in the enjoyment of this right.240 In addition, the International Labour Organization (ILO), in Convention No. 111 concerning Discrimination in Respect to Employment and Occupation, to which Afghanistan is a party, proscribes conduct, practices, or laws that have the "effect of nullifying or impairing equality of opportunity or treatment in employment or occupation."241 The ILO Committee of Experts (COE), a panel created to provide authoritative readings of ILO conventions and recommendations, has stated that indirect discrimination within the meaning of Convention No. 111 includes that which is based on "archaic and stereotyped concepts with regard to the respective roles of men and women . . . which differ according to country, culture and customs, [and] are at the origin of types of discrimination based on sex."242 Convention No. 111 allows only a "distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof."243 The COE has urged that such exceptions be interpreted strictly to avoid "undue limitation of the protection which the Convention  is intended to provide."244
Afghanistan's 1964 constitution provides:
Discrimination in the Right to Education
Girls and women have gone back to school in Herat in large numbers. Indeed, many women and girls point to education as the most significant change in Herat from the Taliban's rule. When we asked a university student how things had changed from the Taliban's rule, she replied: "There are no difference. Well one difference that girls come out and study. Otherwise there is no difference.... The only change in the situation is that girls can go to school."246 "Only the doors to the schools are open," another woman told us. "Everything else is restricted."247 And a Herati man noted, "What women's rights mean in our society is to go from primary school to university. This is all their rights."248
While increased school enrollment is extremely positive, girl students still face restrictions not imposed on boys. Studying in separate girls schools, girls must follow strict dress codes as described above, enforced by school administrators and in some cases by the squads of boys trained by police; restrictions on their freedom of movement also hurt their ability to reach the schools. In addition, girls are not allowed to study music or play sports. A male music teacher explained, "Women don't take music classes. Like most things, no one announced it but people know."249 Girls who had studied music and played sports in Iran told Human Rights Watch that they missed these activities in Herat.250
Teachers and administrators at two primary schools and one secondary school confirmed that their students were not allowed to play sports; according to a school supervisor, the Herat government had prohibited it.251
Every school has one hour for sports, but girls don't play football or volleyball-they have to sit because Ismail Khan says it is bad for girls to play sports. . . . The students are really interested in doing sports, but they aren't allowed to do anything. They are eager to have a music class-to do something happy-but they can't. There are no sports, no music.252
Ismail Khan has explicitly condemned girls playing sports. A teacher explained: "Last week Ismail Khan talked about three girls who went to Europe for sports [martial arts]. He said at a funeral speech last week that it was bad for our situation, bad that three girls went to Europe for sport, that he is very worried that he has heard that the government sent three girls."253
Discrimination in employment, described above, diminishes girls' incentives to pursue education: although Ismail Khan claims to have given girls the right to education, he does not allow them to use it. According to an official in the Ministry of Higher Education, speaking both about Herat and elsewhere in Afghanistan: "Now, most girls don't try to go to faculties where there is no chance of work. Before, there were many girls studying to be civil engineers and there were government jobs available."254 Denying women and girls the opportunity to use their studies in effect makes a mockery of the right to education. "These things, these attitudes, mean that for the few women who have an education at the university-it is useless. If this is the situation, they cannot get a job in governmental offices."255
Although women and girls are now, in small numbers, studying in Herat University, the discrimination they face there greatly constrains their participation and exemplifies the long catalogue of restrictions in Herat that combine to create an environment where their speech, behavior, and appearance are controlled and where the free exchange of ideas, central to a university education, is very limited. A woman who transferred from Herat to Kabul University in mid-2002 explained:
One person responsible for the closed environment is Herat University's dean, Abdurrauf Mukhlis, the former head of Ismail Khan's religious police in the early 1990s. Ismail Khan appointed Mukhlis over the objections of the Ministry of Higher Education in Kabul, which tried, unsuccessfully to convince Ismail Khan to hold faculty elections for the post of dean, in accordance with ministry policy.1 Students were not happy with Mukhlis' appointment. As the former head of the religious police, Mukhlis hardly had the kind of background that would encourage free thinking or women's participation on campus. "You can imagine what he imposes," a student told Human Rights Watch.2 Students and professors reported that they fear discussing anything political, that interaction between boys and girls is suspect, and that women's behavior is tightly regulated.
Unlike in the universities in Mazar-e Sharif and Kabul, male and female students study separately, on Ismail Khan's order, over the objection of the Ministry of Higher Education in Kabul.3 An official in the Kabul ministry explained:
In all of Afghanistan's universities, women and girls still do not enjoy access equal with men. When Human Rights Watch asked an official at the Ministry of Higher Education what would happen if only one girl were interested in a particular class, he responded:
Women studying in the university also told Human Rights Watch that while male students had been allowed to study abroad in official exchange programs, female students had not, even to Iran.6 One woman explained: "Boys from Herat have gone. This is really wrong. And one of the countries is Iran, which is an Islamic country, but it was still not allowed."7
The Herat University administration imposes a restrictive dress code for women that, as explained above, is promulgated by the dean. A student told Human Rights Watch that soon after the first semester began in March 2002:
Although the exchange of ideas is at the core of what constitutes a university, speech at Herat's university is tightly controlled by the local government. Political speech in Herat University is expressly forbidden, and students and teachers report that they fear retaliation if they criticize the government or the university itself, or even discuss current government policy.9 For example a number of university students said that while they disliked studying in a segregated environment, they are afraid to voice any complaints about it.10 One student related the following incident to Human Rights Watch:
Human Rights Watch was not able to interview the student who was castigated.
Another student told Human Rights Watch that she censors what she writes for her classes:
The woman who left Herat University and transferred to Kabul University because she found the environment stifling said that just as under the first period of Ismail Khan's rule, female students in particular are discouraged from speaking out.13 Another student noted: "If a girl says something she thinks in the university, the teachers (who are men) will say `yes' but their behavior to her conveys that it is ridiculous."14
The right to education is set forth in the ICESCR, the Convention on the Rights of the Child, and CEDAW.15 Recognizing that different states have different levels of resources, international law does not mandate exactly what kind of education must be provided, beyond certain minimum standards: primary education must be "compulsory and available free to all," and secondary education must be "available and accessible to every child."16 Accordingly, the right to education is considered a "progressive right": by becoming party to the international agreements, a state agrees "to take steps . . . to the maximum of its available resources" to the full realization of the right to education.17 Although the right to education is a right of progressive implementation, the prohibition on discrimination is not. The Committee on Economic, Social and Cultural Rights, which interprets the ICESCR, has stated: "The prohibition against discrimination enshrined in article 2(2) of the [ICESCR] is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination."18 Thus, regardless of its resources, the state must provide education "on the basis of equal opportunity," "without discrimination of any kind irrespective of the child's race, colour, sex, language, religion, political or other opinion, national ethnic or social origin, property, disability, birth or other status."19
While international law permits the maintenance of separate educational systems or institutions for girls and boys, these must "offer equivalent access to education, provide a teaching staff with qualifications of the same standard as well as school premises and equipment of the same quality, and afford the opportunity to take the same or equivalent courses of study."20 However, in a post-conflict society where resources are extraordinarily scarce, maintaining a segregated system necessarily uses additional resources that might otherwise have gone to improve the education of both boys and girls.
Afghanistan's 1964 constitution provides that: "Education is the right of every Afghan and shall be provided free of charge by the state and citizens of Afghanistan."21
59 Human Rights Watch telephone interview with G.Z.K., Herat, October 10, 2002. Ismail Khan employed similar religious police during his first rule from 1992 to 1995.
63 Human Rights Watch interview with H.D., Herat, September 11, 2002.
64 Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions, Bonn, Germany, signed December 5, 2001.
65 International Covenant on Civil and Political Rights (ICCPR), opened for signature December 16, 1966, 999 U.N.T.S. 171 (entered into force March 23, 1976, and acceded to by Afghanistan January 24, 1983), art. 2(1); International Covenant on Economic, Social and Cultural Rights (ICESCR), opened for signature December 16, 1966, G.A. Res. 2200A(XXII) (entered into force January 3, 1976, and acceded to by Afghanistan January 24, 1983), art. 2(2); and Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, U.N. Doc. A/44/49 (entered into force September 2, 1990, and ratified by Afghanistan March 28, 1994), art. 2(1).
66 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), G.A. Res. 34/180, U.N. Doc. A/34/46 (entered into force September 3, 1981, and signed by Afghanistan August 14, 1980), art. 1.
67 Ibid., art. 2. As a signatory but not a party to CEDAW, Afghanistan is obligated to refrain from acts that would defeat the treaty's object and purpose. Vienna Convention on the Law of Treaties, signed May 23, 1969, 1155 U.N.T.S. 331 (entered into force January 27, 1980), art. 18.
68 Convention on the Political Rights of Women, opened for signature and ratification December 20, 1952, G.A. Res. 640(VII) (entered into force July 7, 1954, and acceded to by Afghanistan November 16, 1966), art. 11.
69 Communication to Human Rights Watch from UNAMA staff, August 31, 2002; Human Rights Watch interview with B.K., Herat, September 12, 2002; Human Rights Watch interview with K.I., Herat, September 17, 2002.
70 Human Rights Watch interview with H.M., Kabul, September 30, 2002.
71 Mike Collett-White, "`Emir of Herat' lords over the strategic Afghan west," Reuters, October 9, 2002.
72 Human Rights Watch telephone interview with G.Z.K., Herat, October 10, 2002.
73 Communication to Human Rights Watch from Herati woman, November 10, 2002.
74 General Comment 27, Freedom of Movement, U.N. Human Rights Committee, U.N. Doc. CCPR/C/21/Rev/1/Add/9 (November 2, 1999), para. 18.
76 Constitution of Afghanistan (1964), art. 26.
77 Human Rights Watch telephone interview with G.Z.K., Herat, October 10, 2002; Human Rights Watch telephone interview with L.H., Herat, October 11, 2002; Human Rights Watch interview with G.D.A., Kabul, October 12, 2002.
78 Human Rights Watch telephone interview with G.Z.K., Herat, October 10, 2002.
79 Communication to Human Rights Watch from Herati woman, November 10, 2002.
80 Human Rights Watch telephone interview with G.Z.K., Herat, October 10, 2002.
82 Human Rights Watch telephone interview with S.Q., Herat, October 16, 2002. Another source familiar with the situation confirmed that "the authorities, the criminal branch, with hospital doctors, have established a task force [sitad] for checking of women-whether the women has had sexual intercourse or not." Human Rights Watch telephone interview with K.J.J., Herat, October 10, 2002.
83 See, e.g., Brian Murphy, "Strict Social Code Still Encircles Afghan Women in Post-Taliban Rule," Associated Press, December 16, 2001 (describing prosecutions of women in Herat on "morals charges").
84 Human Rights Watch telephone interview with M.I., Herat, October 10, 2002.
85 Human Rights Watch interview with G.D.A., Kabul, October 12, 2002.
86 Communication to Human Rights Watch from eyewitness, October 27, 2002.
90 Human Rights Watch telephone interview with P.J.D, Herat, October 11, 2002.
91 Human Rights Watch telephone interview with L.H., Herat, October 11, 2002.
94 Human Rights Watch, "All Our Hopes Are Crushed," pp. 36-45, http://hrw.org/reports/2002/afghan3/herat1002-06.htm#P844_133597.
95 Human Rights Watch telephone interview with L.H., Herat, October 10, 2002.
98 Human Rights Watch telephone interview with G.Z.K., Herat, October 10, 2002.
103 Human Rights Watch telephone interview with Herati who heard the announcements, Herat, November 14, 2002.
104 Article 5 of the Universal Declaration of Human Rights and article 7 of the ICCPR prohibit cruel, inhuman, or degrading treatment. Article 16 of the Torture Convention requires states parties to prevent cruel, inhuman or degrading treatment, or punishment when committed by or with the acquiescence of a public official. The convention further obliges states to take specific steps-education, monitoring, complaint procedures, investigations-to prevent such treatment. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, annex, 39, U.N. Doc. A/39/51 (entered into force June 26, 1987, and ratified by Afghanistan April 1, 1987).
105 Constitution of Afghanistan (1964), art. 26. The constitution also prohibits torture.
106 For information about Human Rights Watch's work on abusive, state-sponsored medical examinations of women in other countries, see Human Rights Watch, "A Matter of Power: State Control of Women's Virginity in Turkey," A Human Rights Watch Short Report, vol. 6, no. 7, June 1994, http://www.hrw.org/reports/1994/turkey/; and Human Rights Watch, "Turkey: Virginity Tests Reinstated," press release, July 25, 2001, http://www.hrw.org/press/2001/07/turkey0724.htm.
107 Communication to Human Rights Watch from eyewitness, October 27, 2002.
108 At the U.N. International Conference on Population and Development held in October 1994 in Cairo, Egypt, and the U.N. Fourth World Conference on Women held in September 1995 in Beijing, China, governments explicitly endorsed women's reproductive and sexual autonomy. The Cairo conference concluded by adopting a program of action whereby countries pledged to promote the full participation and partnership of women and men in productive and reproductive life. See United Nations, Gender Equality, Equity and Empowerment of Women (New York: United Nations Publications, 1994), U.N. Doc. A/CONF.171/13, October 18, 1994. In the 1995 Beijing Declaration and Platform for Action, delegates from governments around the world recognized that "human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, free of coercion, discrimination and violence." United Nations, Beijing Declaration and Platform for Action (New York: United Nations Publications, 1995), U.N. Doc. A/CONF.177/20, October 17, 1995, adopted at the Fourth World Conference on Women held in Beijing, China, in September 1995, para. 96.
109 Physicians for Human Rights, Maternal Mortality in Herat Province, Afghanistan: The Need to Protect Women's Rights, 2002, p. 1. According to the study, factors contributing to the high maternal mortality rate include "access to and quality of health services, adequate food, shelter and clean water, and denial of personal freedoms such as freely entering into marriage, access to birth control methods and possibly control over the number and spacing of children." Ibid. In Afghanistan as a whole, the maternal mortality rate was estimated to be 1,600 per 100,000 live births, one of the highest rates in the world. UNICEF, U.S. Centers for Disease Control and Prevention (CDC), and Afghan Ministry of Public Health, Maternal Mortality in Afghanistan: Magnitude, Causes, Risk Factors and Preventability: Summary of Findings, November 6, 2002, p. 4.
110 Of 4,486 women and girls surveyed in Herat province in March 2002, 0.83 percent reported births that were attended by a trained health care worker. Ibid., p. 3.
111 Physicians for Human Rights, Maternal Mortality in Herat Province, Afghanistan, p. 34.
112 UNICEF, Maternal Mortality in Afghanistan, p. 5; and UNICEF and U.S. Centers for Disease Control and Prevention (CDC), "Afghanistan is among worst places on globe for women's health, say UNICEF and CDC," November 6, 2002, http://www.unicef.org/newsline/02pr59afghanmm.htm (retrieved November 15, 2002).
114 While some men would oppose the women and girls in their families driving, others in Herat would support it and have taught their female relatives to drive.
115 Human Rights Watch interview with V.P., Herat, September 21, 2002.
117 Human Rights Watch interview with B.K., Herat, September 11, 2002.
118 Human Rights Watch interview with Z.F., Herat, September 16, 2002.
119 Human Rights Watch interview with D.A., Herat, September 16, 2002; Human interview with L.H., Herat, September 11, 2002; Human Rights Watch interview with H.D., Herat, September 11, 2002; Human Rights Watch interview with Z.F., Herat, September 16, 2002.
121 Human Rights Watch interview with K.I., Herat, September 17, 2002.
122 Human Rights Watch interview Z.F., Herat, September 16, 2002.
123 Human Rights Watch interview with NGO director, Kabul, September 29, 2002.
124 Human Rights Watch interview with Kabul government official, Kabul, September 26, 2002.
125 Human Rights Watch interview with F.M., Herat, September 17, 2002.
126 Human Rights Watch interview with M.M., Herat, September 12, 2002.
127 See Human Rights Watch, "All Our Hopes Are Crushed," pp. 24-36, http://hrw.org/reports/2002/afghan3/herat1002-05.htm#P542_84552.
128 Ibid., section "Control of Female Loya Jirga Delegates and Candidates," p. 22, http://hrw.org/reports/2002/afghan3/herat1002-04.htm#P382_57333.
129 About one-third of the members of Herat's Professional Shura are women. The Professional Shura was created in the first months of 2002, when several doctors, lawyers, professors, and teachers began to meet and organize. Ismail Khan has targeted the Professional Shura of Herat and its members, both men and women, apparently perceiving them to be a threat to his rule. In June 2002, his agents detained for two days and beat the shura's head, Mohammad Rafiq Shahir, and subjected him to a mock execution. In late September Ismail Khan forcibly prevented the shura from meeting by ordering it to cancel a meeting and then sending troops to stop it. See Human Rights Watch, "All Our Hopes are Crushed," pp. 21-22, 31, http://hrw.org/reports/2002/afghan3/herat1002-04.htm#P382_57333; http://hrw.org/reports/2002/afghan3/herat1002-05.htm#P684_107680.
130 Human Rights Watch interview with F.M., Herat, September 11, 2002.
133 John Donnelly, "Self-Styled Emir Lords It Over Herat's Poor," Boston Globe, May 20, 2002, p. A7.
134 For further information about the Herat Women's Shura, see Human Rights Watch, "All Our Hopes Are Crushed," pp. 33-34, http://hrw.org/reports/2002/afghan3/herat1002-05.htm#P684_107680.
135 For example, the Women's Association was established around July 2002 in order to teach courses to girls. As of late August 2002, they were still struggling to be officially registered with the Herat government, a precondition for being considered for participation in development and capacity building projects. Communication to Human Rights Watch from UNAMA staff, August 31, 2002.
136 Human Rights Watch interview with S.R., Herat, September 12, 2002.
137 Human Rights Watch interview with V.S., Herat, September 14, 2002.
138 Human Rights Watch interview with P.L., Herat, September 11, 2002.
139 Human Rights Watch group interview with shura members, Herat, September 11, 2002.
140 "Women's council re-established in west Afghan city," BBC Monitoring South Asia transcript of report on Herat T.V., 17:00 GMT, August 30, 2002.
141 Human Rights Watch interview with shura member, Herat, September 11, 2002.
143 Human Rights Watch interview with shura member, Herat, September 11, 2002.
144 Human Rights Watch interview with Z.F., Herat, September 16, 2002.
145 From February to June 2002, officials at Herat hospital recorded twenty-eight incidents in which women and girls supposedly committed suicide by burning themselves. Only three have survived. Human Rights Watch interview with medical staff, Herat, September 15, 2002.
146 Human Rights Watch interview with woman who attended the shura meeting, Herat, September 11, 2002.
148 Human Rights Watch interview with A.H., Herat, September 15, 2002.
149 Human Rights Watch interview with F.M., Herat, September 11 and 17, 2002.
150 Human Rights Watch interview with H.D., Herat, September 11, 2002.
151 Human Rights Watch interview with F.M., Herat, September 17, 2002.
152 Human Rights Watch interview with M.M., Herat, September 12, 2002.
153 Human Rights Watch interview with S.R., Herat, September 12, 2002.
154 Human Rights Watch interview with students, Herat, September 11, 2002.
155 "Afghan women staunchly defend Herat's human rights record," BBC Monitoring Service transcript of Herat T.V., 16:30 GMT, November 14, 2002.
156 For more on the history of the Herat literary society under the Taliban, see Lamb, The Sewing Circles of Herat.
157 Human Rights Watch interview with J.A., Kabul, September 24, 2002.
158 Human Rights Watch interview with petitioner, Herat, September 12, 2002.
159 Human Rights Watch interview with J.A., Kabul, September 24, 2002.
160 Human Rights Watch interview with S.R., Herat, September, 12, 2002.
163 Human Rights Watch interview with A.H., literary society member, Herat, September 15, 2002.
164 Human Rights Watch telephone interview with literary society member, Herat, December 12, 2002.
165 Human Rights Watch interview with R.N., Herat, September 17, 2002.
166 Human Rights Watch interview with V.S., Herat, September 14, 2002.
167 Human Rights Watch group interview with teachers, Herat, September 11, 2002. A U.N. official also confirmed this incident. Communication to Human Rights Watch from UNAMA staff, August 31, 2002.
169 Human Rights Watch interview with Afghan woman working for a foreign organization, Herat, September 17, 2002.
170 Human Rights Watch interviews with students, Herat, September 11, 2002; Human Rights Watch interview with B.K., Herat, September 12, 2002; Human Rights Watch interview with S.N., Herat, September 14, 2002; Human Rights Watch interview with M.M., Herat, September 12, 2002.
171 Human Rights Watch interview with Z.Z., Herat, September 11, 2002.
172 Human Rights Watch interview with M.M., Herat, September 14, 2002.
173 Human Rights Watch interview with H.D., Herat, September 11, 2002.
174 Human Rights Watch interview with F.M., Herat, September 17, 2002.
175 ICCPR, art. 19(2). See also Convention on the Rights of the Child, art. 13.
177 General Comment 10, Freedom of Expression, U.N. Human Rights Committee, 19th sess., (June 29, 1983), para. 4.
178 Human Rights Watch interview with male burqa shop owner, Herat, September 19, 2002.
179 Elsewhere in Afghanistan, this garment is called "chadori." Human Rights Watch spoke with girls as young as seven who were wearing burqas, although it is not the norm for girls this young to wear them.
180 Human Rights Watch interview with Z.F., Herat, September 16, 2002.
181 Human Rights Watch interview with S.S., Herat, September 13, 2002.
182 Human Rights Watch interview with B.K., Herat, September 12, 2002.
183 Human Rights Watch has opposed government bans on religious attire, including headscarves, as a violation of the right to freedom of expression and religion. See Human Rights Watch, "Uzbekistan: Class Dismissed: Discriminatory Expulsions of Muslim Students," A Human Rights Watch Report, vol. 11, no. 12 (D), October 1999. http://www.hrw.org/reports/1999/uzbekistan/.
184 Human Rights Watch interview with M.M., Herat, September 12, 2002.
185 Human Rights Watch interview with F.M., Herat, September 17, 2002.
186 Human Rights Watch interview with Z.F., Herat, September 16, 2002.
189 See, e.g., "Afghan governor stresses education and cooperation in Friday prayers," BBC Monitoring Service transcript of Herat T.V., 16:30 GMT, October 25, 2002; "Afghan governor condemns foreign influence in mosque speech," BBC Monitoring Service transcript of Herat T.V., 16:30 GMT, September 21, 2002.
190 Human Rights Watch interview with attendee of Ismail Khan's meetings for Afghan women staff of international NGOs, Herat, September 12, 2002.
191 Human Rights Watch telephone interview with G.Z.K., October 10, 2002; Human Rights Watch telephone interview with L.H., October 10, 2002.
193 "Reply to Respected Hadi Ghafari: Women's Pictures are Illegal According to Islam Sharia," Ittifaq-e Islam, vol. 53, August 11, 2002, p. 4.
194 Human Rights Watch group interview with four women, Herat, September 11, 2002; and Human Rights Watch interview with two women, Herat, September 12, 2002.
195 Human Rights Watch group interview with Herati women, Herat, September 11, 2002.
196 Human Rights Watch interview with B.K., Herat, September 12, 2002.
197 Human Rights Watch telephone interview with L.H., October 10, 2002.
198 Human Rights Watch interview with V.S., Herat, September 12, 2002.
199 Human Rights Watch interview with V.S., Herat, September 14, 2002.
200 Human Rights Watch telephone interview with M.I., Herat, October 10, 2002.
201 Human Rights Watch interview with V.S., Herat, September 14, 2002.
202 Communication to Human Rights Watch from UNAMA staff, August 31, 2002.
204 Human Rights Watch interview with W.J., Herat, September 17, 2002.
205 Human Rights Watch interview with R.N., Herat, September 17, 2002.
206 Human Rights Watch interview with F.H., Herat, September 17, 2002.
207 Human Rights Watch interview with V.S., Herat, September 14, 2002.
208 Human Rights Watch interview with F.M., Herat, September 14, 2002.
209 Human Rights Watch interview with a group of teachers and school administrators, Herat, September 17, 2002.
210 Human Rights Watch interview with a teacher, Herat, September 17, 2002.
211 Human Rights Watch interview with nine- and ten-year-old girls, Herat, September 17, 2002; Human Rights Watch interview with primary school teacher, Herat, September 17, 2002.
212 Human Rights Watch interview with N.P., Herat, September 17, 2002.
213 Human Rights Watch telephone interview with G.Z.K., October 10, 2002.
214 Human Rights Watch interview with S.N., Herat, September 14, 2002.
216 Human Rights Watch interview with F.M., Herat, September 17, 2002.
217 Human Rights Watch interview with H.M., Kabul, September 30, 2002.
218 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Arlington, V.A.: N.P. Engel, 1993), p. 294.
219 Human Rights Watch interview with W.Z., Herat, September 17, 2002.
220 Human Rights Watch interview with H.D., Herat, September 11, 2002.
221 Human Rights Watch interview with student, Herat, September 11, 2002.
222 Human Rights Watch interview with K.I., Herat, September 17, 2002; Human Rights Watch interview with NGO employee, Herat, September 12, 2002.
223 Human Rights Watch telephone interview with G.Z.K., October 10, 2002; Human Rights Watch telephone interview with L.H., October 10, 2002.
225 Human Rights Watch interview with UNAMA staff, Herat, September 16, 2002.
226 Communication to Human Rights Watch from UNAMA staff, August 31, 2002; Human Rights Watch interview with K.I., Herat, September 17, 2002; and Human Rights Watch interview with B.K., Herat, September 12, 2002.
227 Human Rights Watch interview with woman who attended the meetings, Herat, September 11 and 12, 2002.
228 Human Rights Watch interview with L.H., Herat, September 13, 2002.
230 Human Rights Watch interview with UNAMA staff, Herat, September 16, 2002; Human Rights Watch interview with U.N. staff, Herat, September 19, 2002.
232 Human Rights Watch interview with F.M., Herat, September 17, 2002; Human Rights Watch telephone interview with M.I., Herat, October 10, 2002.
234 Human Rights Watch interview with K.I., Herat, September 17, 2002.
235 Human Rights Watch interview with S.R., Herat, September 11, 2002; Human Rights Watch interview with F.M., Herat, September 11, 2002; Human Rights Watch interview with S.S., Herat, September 13, 2002.
236 Human Rights Watch interview with university student, Herat, September 14, 2002.
237 Human Rights Watch interview with B.K., Herat, September 12, 2002.
238 Human Rights Watch interview with university professor, Herat, September 17, 2002.
239 Human Rights Watch interview with A.R.L., Herat, September 15, 2002.
240 ICESCR, art. 6. See also CEDAW, art.11.
241 ILO Convention No.111 concerning Discrimination in Respect to Employment and Occupation, adopted June 25, 1958, 362 U.N.T.S. 31 (entered into force June 15, 1960, and ratified by Afghanistan October 1, 1969), art. 1(1).
242 International Labour Conference, Equality in Employment and Occupation, General Survey of the Committee of Experts on the Application of Conventions and Recommendations, 75th sess. 1988, Report III (Part 4B) (Geneva: International Labour Office, 1996), para. 38.
243 ILO Convention No.111, art. 1(2).
244 International Labour Conference, Equality in Employment and Occupation, p.138.
245 Constitution of Afghanistan (1964), art. 37.
246 Human Rights Watch interview with M.M., Herat, September 12, 2002.
247 Human Rights Watch interview with K.I., Herat, September 17, 2002.
248 Human Rights Watch interview with L.H., Herat, September 13, 2002.
249 Human Rights Watch interview with music teacher, Herat, September 13, 2002.
250 Human Rights Watch interview with B.K., Herat, September 12, 2002.
251 Human Rights Watch interview with group of teachers and school administrators, Herat, September 17, 2002.
252 Human Rights Watch interview with H.D., Herat, September 11, 2002.
253 Human Rights Watch interview with F.M., Herat, September 11, 2002.
254 Human Rights Watch interview with official in the Ministry of Higher Education, Kabul, September 22, 2002.
255 Human Rights Watch telephone interview with S.R., Herat, December 12, 2002.
0 Human Rights Watch interview with H.M., Kabul, September 30, 2002.
1 Human Rights Watch interview with N.N., Kabul, September 22, 2002.
2 Human Rights Watch interview with H.M., Kabul, September 30, 2002.
3 Human Rights Watch interview with Ministry of Higher Education official, Kabul, September 22, 2002.
6 Human Rights Watch interview with S.N., Herat, September 14, 2002; Human Rights Watch interview with B.K., Herat, September 14, 2002.
7 Human Rights Watch interview with S.N., Herat, September 14, 2002.
8 Human Rights Watch interview with H.M., Kabul, September 30, 2002.
9 For more information about the prohibition on political speech in Herat University, see Human Rights Watch, "All Our Hopes Are Crushed," pp. 34-35, http://hrw.org/reports/2002/afghan3/herat1002-05.htm#P684_107680.
10 Human Rights Watch interview with B.K., Herat, September 12, 2002; Human Rights Watch interview with M.M., Herat, September 12, 2002; Human Rights Watch interview with S.N., Herat, September 14, 2002; and Human Rights Watch interview with H.M., Kabul, September 30, 2002.
11 Human Rights Watch interview with B.K., Herat, September 12, 2002.
12 Human Rights Watch interview with M.M., Herat, September 12, 2002.
13 Human Rights Watch interview with H.M., Kabul, September 30, 2002.
14 Human Rights Watch interview with M.M., Herat, September 12, 2002.
15 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc A/810 at 71 (1948), art. 26; ICESCR, art. 13; Convention on the Rights of the Child, art. 28, CEDAW, art. 10.
16 Convention on the Rights of the Child, art. 28.
17 ICESCR, art. 2(1). See also Convention on the Rights of the Child, art. 28. But see General Comment 13, The Right to Education, Committee on Economic, Social and Cultural Rights, 21st sess., (December 8, 1999) para. 44: "The realization of the right to education over time, that is `progressively,' should not be interpreted as depriving States parties' obligations of all meaningful content. Progressive realization means that States parties have a specific and continuing obligation `to move as expeditiously and effectively as possible' towards the full realization of article 13"; and General Comment 3, The Nature of States Parties Obligations, Committee on Economic, Social and Cultural Rights, 5th sess., (December 14, 1990), para. 2: "Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant."
18 General Comment 13, The Right to Education, Committee on Economic, Social and Cultural Rights, para. 31. The Committee on Economic, Social and Cultural Rights interprets the ICESCR. See also, General Comment 11, Plans of Action for Primary Education, Committee on Economic, Social and Cultural Rights, 20th sess., U.N. Doc. E/C.12/1999/4 (May 10, 1999), para. 10; and General Comment 3, The Nature of States Parties Obligations, Committee on Economic, Social and Cultural Rights, para. 2 (stating that the obligation to guarantee the exercise of rights in the International Covenant on Economic, Social and Cultural Rights without discrimination is "of immediate effect").
19 Convention on the Rights of the Child, arts. 28(1), 2(1). See also ICESCR, arts. 2, 13; CEDAW, art. 10. The Committee has interpreted the prohibition on discrimination and the right to education in article 2(2) and 13 of the ICESCR in accord with the Convention against Discrimination in Education, adopted December 14, 1960, General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO), 429 UNTS 93 (entered into force May 22, 1962), and the relevant provisions of CEDAW. General Comment 13, The Right to Education, Committee on Economic, Social and Cultural Rights, para. 31.
20 The Committee on Economic Social and Cultural Rights, interpreting article 13 of the ICESCR on the right to education, has found that certain separate educational systems or institutions for groups, under the circumstances defined in the Convention Against Discrimination in Education, do not constitute a breach of the Covenant. General Comment 13, The Right to Education, Committee on Economic, Social and Cultural Rights, para. 33 and note 16.
21 Constitution of Afghanistan (1964), art. 34.