Closing the Accountability Gap and Redrawing the Boundaries of International Law: An All-Tools Approach to Addressing Systemic Discrimination on the Basis of Sex
Rangita de Silva de Alwis,* Catherine Amirfar,** and Helena Kennedy***
On the third anniversary of the second Taliban takeover of Afghanistan, this Article analyzes the group’s flagrant violations of women’s and girls’ fundamental human rights against the guarantees enshrined in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Furthermore, it closely examines the Special Rapporteur of Afghanistan’s “all tools” approach, under which the entire international community opposes the Taliban’s oppression in order to prevent harm to future generations around the globe. Late last year, Germany, Australia, Canada, and the Netherlands—with support from more than twenty other states—met Afghan women advocates’ call by announcing their intention to bring a case before the International Court of Justice against the Taliban for their flagrant violations of CEDAW. This Article has a larger ambition, one that goes beyond the empowerment of Afghan women and girls toward a transformative project, strengthening the foundational principles of international law to protect against gender-based discrimination and oppression. Women have historically existed on the margins of international law, and the resulting silence signals that they are not its makers. This Article offers several examples to illustrate how centering women and correcting their erasure from international law is essential to the pursuit of justice. A series of decrees delivered drip by drip over the last three years has resulted in the disappearance of Afghan women in public life by suppressing their fundamental rights and freedoms. If these decrees slowly but surely had a crippling effect on women and girls, the new formal decree on “vice and virtue” laws will have a paralyzing effect on their lives. On a significantly larger scale than gender persecution, this institutionalized regime of oppression rises to a level of systemic domination of one gender over another, strikes at our common humanity, and calls upon us to confront a crime yet without a name.
* Rangita de Silva de Alwis is faculty at the University of Pennsylvania Carey Law School and Visiting Faculty at the Kennedy School of Government. She is a member of the treaty body to the Convention on the Elimination of Discrimination against Women and Chair of its Petitions Mechanism. She is also the Hillary Rodham Clinton Global Fellow on Gender Equity at the Georgetown Institute for Women, Peace, and Security, Senior Fellow at the Harvard Law School Center for the Legal Profession, and Visiting Fellow at Mansfield College, University of Oxford. She serves on the Advisory Council of the President of the UN General Assembly and is Vice Chair of the International Bar Association’s International Human Rights Institute as a co-Chair (along with the co-authors) of the High-Level Expert Group on Gender Justice.
** Catherine Amirfar is a litigation partner at Debevoise & Plimpton LLP and co-Chair of the Firm’s International Dispute Resolution and Public International Law Groups. She has over twenty years of experience appearing before international courts and tribunals in cases implicating important questions of public international law. She is grateful to the Afghan women leaders of the High-Level Expert Group for their vision, leadership, and critical contributions to the issues of gender justice discussed in this Article. She also thanks her colleagues Julianne Marley, Sara Kaufhardt, and Christopher Bello of Debevoise & Plimpton LLP and the aides to the High-Level Expert Group for their invaluable assistance with this Article.
*** Baroness Helena Kennedy KC is one of Britian’s most distinguished lawyers and public figures. She was Principal of Mansfield College, University of Oxford and founded the Bonavero Institute of Human Rights at the Faculty of Law, University of Oxford. In 2024, King Charles III appointed her to the Order of the Thistle, in recognition of her work on international human rights and women’s rights. She is also the Head of the International Bar Association’s Human Rights Institute and serves as co- Chair to the High Level Expert Group.