“At the heart of the gender equality project,” writes Senior Adjunct Professor of Global Leadership Rangita de Silva de Alwis, “is the full and equal right to education of women and girls.”
The following was written by Rangita de Silva de Alwis, faculty at the University of Pennsylvania Carey Law School and Wharton and an expert on the UN treaty body on the Convention on the Elimination of Discrimination against Women (CEDAW). She is a Senior Fellow at the Harvard Law School Center on the Legal Profession and Fellow of Mansfield College, Oxford, and will serve as the Special Adviser to UK Parliamentary Inquiry on Gender Apartheid.
While the Secretary General’s independent assessment addresses the question of the Taliban or the Afghan De Facto Authority’s (DFA) integration into the international system, it is vital that any such negotiations are conducted on the condition of clear and present evidence that there is no derogation of women’s de jure and de facto rights under the Convention on the Elimination of Discrimination against Women (CEDAW).
At the heart of the gender equality project is the full and equal right to education of women and girls. The malignant nature of the denial of girls’ and women’s education in Afghanistan—the only country in the world to ban female education beyond sixth grade—has devastating consequences for generations to come, not just in Afghanistan, but in the region and the world.
On November 9th, the President of the Security Council presented the UN Secretary General’s letter and its enclosure on Afghanistan to the Security Council under the symbol S/2023/856. The Secretary General pursuant to paragraph 1 of resolution 2679 (2023), adopted by the Security Council at its 9283rd meeting on 16 March 2023, shared an independent assessment on Afghanistan, as outlined in paragraph 2 of resolution 2679. For the purposes of this post, we examine the section in the letter on “Human Rights, in Particular the Rights of Women and Girls.”
In summation, this section emphasizes that “Any formal re-integration of Afghanistan into global institutions and systems will require the participation and leadership of Afghan women.”
Citing the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Secretary General’s letter emphasized emphatically that the situation of women and girls, and the restrictions on girls’ education “was the single most common issue raised in consultations,” stressed by every Afghan stakeholder group consulted—the business community, religious clerics, tribal elders, civil society. Afghan stakeholders inside and outside of the country underscored that the current restrictions as mandated through edicts and decrees, including restrictions on female education, women’s rights to work in various employment categories, and freedom of movement of women, are irreconcilable with Afghan culture, and traditions and incompatible with the guarantees embodied in the CEDAW. Despite the abrogation of the Afghan national constitution, the human rights treaties, including the CEDAW remain self-executing in Afghanistan.
The Secretary General’s independent assessment cogently argues that international stakeholders, including Islamic countries, and other UN Member States and UN institutions assert that the basic rights of women and girls must be respected, and their vitiation cannot be justified in the name of faith and traditions as similar restrictions do not exist in other member states, including that of the member states of the Organization of the Islamic Cooperation.
In fact, to quote Afghanistan’s own policies, denial of girls’ and women’s education is seen to threaten Islamic values. Article 2 of Afghanistan’s Elimination of Violence against Women executive order of 2009 proposed that the practices deemed traditional and harmful to women—including rape, selling women into marriages, causing humiliation and intimidation, forcing isolation, and denying inheritance rights, education, and work—“cause violence against women contrary to the religion of Islam.”
In fact, at a time when there are calls from the Deputy Prime Minister of Afghanistan for Economic Affairs to the Afghan American Chamber of Commerce to consider the development of trade with Afghanistan’s private sector, it is vital to remind ourselves of the role that business can play in ensuring women’s human rights guarantees. In fact, the Secretary General’s own independent assessment in the letter attached to the Security Council highlights that “[t]he chilling effect on the banking sector and lack of confidence in Afghanistan’s economy since August 2021 has also been due to policy choices by the DFA.”
Moreover, it goes on to underscore that the structural causes of the breakdown in the economy are more political than economic: “the triggers that have led to the current situation are as much political as economic, and economic recovery will depend significantly on a political decision.” The assessment calls for attention to the “combined humanitarian, development, and economic challenges facing Afghanistan.”
Although the assessment does consider establishing economic dialogue and reform to begin economic recovery in Afghanistan, it also underscores the “principles of non-discrimination and inclusion, respect for women’s rights and efforts toward their meaningful participation, and respect for fundamental rights and freedoms of all Afghans should be ensured and advanced.” It is vital that this aspect be emphasized in the strongest possible terms as non-negotiable and non-derogable in any contract pertaining to trade or business.
This post examines below how business can play a cardinal role in forcing the DFA to ensure the fundamental guarantees of women’s rights, especially in ensuring full and equal rights to education for girls’ and women beyond sixth grade. It provides several examples of U.S. businesses’ critical role in addressing human rights violations and atrocity crimes in certain countries.
The Sudan crisis represented the first time the government of the United States has labeled ongoing atrocities a genocide. The Sudan Accountability and Divestment Act of 2007 called for mandatory divestment of holdings in scrutinized companies with active business operations in Sudan. Further it provided, inter alia, guidelines in scrutinizing companies wherein the board had direct or indirect holdings, the notification to each scrutinized company of the establishment of the Sudan Divestment program, the duty of the board to submit reports pursuant to this provision, and the period of applicability of these provisions.
Another example is the Dodd Frank Act of 2010, which addressed the U.S. financial crisis in 2008. Section 1502 of the Bill imposed on businesses additional reporting on trade in conflict minerals which helped to finance conflict, particularly sexual and gender-based violence in the Democratic Republic of Congo and adjoining countries.
Finally, a postscript in history. In 1986, the United States enacted the Comprehensive Anti-Apartheid Act, a federal law imposed sanctions and prohibited U.S. nationals from making any new investments in South Africa during the apartheid regime. From 1985 to 1990, 200 U.S. companies disinvested from South Africa. Starting in mid-1984, South Africa saw capital flight as a result of corporate disinvestment. Net capital movement out of South Africa created a dramatic decline in the international exchange rate of the rand which in turn impacted South Africa’s inflation rate leading to the inexorable fall of Apartheid.
Human rights advocates are joining a groundswell of voices describing the DFA in Afghanistan as one which rises to the level of Gender Apartheid. One path to dismantling an institutionalized, systemic form of gender segregation of women and girls is to use the the UN Guiding Principles of Business and Human Rights a set of guidelines for States and companies to prevent, address, and remedy human rights abuses committed in business operations.
It is acknowledged that sanctions can have the indirect consequence of impeding the flow of humanitarian aid to those in need while paralyzing commercial and financial activity that could aid civilian women and their families. It cannot be emphasized enough that any economic regime must be guided by a gender-sensitive human rights impact assessment of targeted strategies.
At the same time, any overtures to Afghan business or trade sectors must be tempered by the call of Richard Bennett, the UN Special Rapporteur on Afghanistan, on all states to address the large scale systematic violations of women’s and girls’ fundamental rights in Afghanistan, aided by the DFA’s gender discriminatory policies and harsh enforcement methods which he concludes is tantamount to “gender persecution and an institutionalized framework of gender apartheid.”