Where does Canada stand on the rights of Afghan women and girls?

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Mark Kersten is an assistant professor in criminal justice at the University of the Fraser Valley and a senior consultant at the Wayamo Foundation. Fatema D. Ahmadi is an Afghan human rights practitioner and researcher and a consultant for the Afghanistan ICJ-CEDAW initiative at Rawadari.

Gender persecution in Afghanistan is no secret. In fact, it is now codified in the Taliban’s many decrees aimed at controlling every aspect of women’s lives. As the United Nations puts it, an Afghan woman could run for President in 2021; today, she would not even be allowed to speak in public.

In response to the Taliban’s persecution of women and girls, Canada joined a multilateral effort to hold the Taliban accountable under Article 29 of the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). But that happened two years ago this week. What has happened since? And what can Canada do to fulfill its promises?

Back then, Canada joined a host of states in launching a legal initiative aimed at ultimately bringing the Taliban to the International Court of Justice (ICJ) over violations of CEDAW. The process is cumbersome. Along with its partners in Australia, Germany and the Netherlands, Canada must negotiate with Afghanistan over violations of the rights of women and girls. If that bears no fruit, the parties must move to arbitration; if, after six months, that fails, the case can go to the court.

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It is unclear where that case now stands. Have Canada and its partners moved toward arbitration? If not, what is slowing down the process? Afghans and Canadians both deserve transparency.

Canada has insisted that any negotiation or arbitration does not mean it recognizes the Taliban as the ruling authority in Afghanistan. But there are fears that some states are engaging directly with the Taliban so they can forcibly return immigrants to the country. Germany is one of those states, raising concerns that Berlin might prefer to work with the Taliban than hold them accountable. And even if it reaches the ICJ, any case could take years to adjudicate.

But the case could achieve more than some might assume. For one, the ICJ has the power to issue interim orders, and could instruct the Taliban to cease their persecution of women and girls during the hearings. The evidence generated during the ICJ’s proceedings could establish an authoritative record of wrongdoing that could be used by other states or institutions like the International Criminal Court, which issued warrants for two Taliban leaders in 2025.

As former Afghan diplomat Nazifa Haqpal observes, the ICJ’s case could “facilitate asylum claims for Afghan women, as it would establish legal recognition of the persecution they face, making it easier for them to seek refuge abroad.” In addition, the case might encourage reluctant states to recognize systematic discrimination and persecution of women and girls as a standalone crime – gender apartheid – under the UN’s draft Crimes Against Humanity Convention.

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In the meantime, Canada can do much more and continues to have special obligations to the people of Afghanistan as a result of its 12-year military presence in the country; after all, a key part of Canada’s rationale for its military intervention was to oust the Taliban and promote the rights of women. While the Taliban have returned and revived their brand of gender repression, Canada can support Afghan women and girls by establishing and bolstering immigration pathways for those facing gender persecution. Canada says it is helping vulnerable Afghans through its “regular immigration pathways” and that other routes are full. That is not good enough.

Canada should also adapt its funding streams to match reality on the ground. Instead of funnelling aid strictly through UN agencies subject to Taliban interference, Ottawa can establish low-profile, flexible grant channels for local civil society and women-led offices, as well as those running clandestine schools to support the right of women and girls to an education.

On the accountability front, Canada should open a structural investigation into gender persecution in Afghanistan. It has opened similar probes into international crimes in Ukraine and the Israel-Hamas conflict. Collecting evidence of atrocities – including from women and girls immigrating to Canada – would help build potential criminal cases against Taliban leaders, either at the ICC or in Canada’s courts.

Under Prime Minister Mark Carney, Canada has dropped its claim of having a “feminist foreign policy” in favour of “values-based realism.” It is unclear what value Ottawa now places on advancing the rights of Afghan women. But if, as the government insists, “Canada will be defined not by the strength of our values but the value of our strength,” it begs the question: Do our values and our strength derive at all from standing with persecuted women and girls?