Afghanistan: September 11, 2001 to August 15, 2021

In the middle of the 20th century, during the final monarchic reign and the period of Soviet dominance in Afghanistan, women’s freedom grew. In urban areas, many walked bare-headed and pursued careers outside the home. 

During the civil war decades that followed, mujaheddin nationalists battled Soviet power and influence in part by embracing traditional, conservative values, conflating nationalism with strict adherence to the  Quranic code – especially its dictates for women. The Taliban regime that took over in the early 1990s continued this trend; women and their defenders who didn’t adhere to the archaic strictures imposed on them suffered brutal repression, torture, even death. 

The ouster of the Taliban regime by an American-led coalition in 2002 allowed a relaxation of the restrictive interpretation of Islam that kept women imprisoned in their homes. 

The 2003 Afghan constitution enshrined important rights for women. By 2019, women made up 22% of the labour force from which they had been largely excluded under the Taliban. For the first time, they participated in political decision-making, holding 27% of the seats in the national parliament (though their progress at the local council level continued to be hampered by cultural, historical and ideological obstacles). 

After generations of being barred from education, women and girls emerged from illiteracy. The gross enrolment rate for girls in primary education was zero in 2001 and 83 percent in 2021, with similar increases in secondary levels of education.

 Enrolment in post-secondary institutions remained low in 2021 (only 5 percent of women and 15 percent of men), but those numbers constituted a significant improvement over 2001. The Afghan women judges in Ontario were in the 5 percent who attended university; all acquired a bachelor’s degree in sharia law or Islamic law. A few also obtained a master’s degree.

With the re-introduction of civil society after 2002, the Western coalition encouraged and underwrote the costs for establishing democratic institutions. The legal system was entirely overhauled; several Canadian judges participated in the analysis, redesign and negotiation of new regimes of criminal and civil law.  

The judicial system in Afghanistan remained an inquisitorial one, unlike the adversarial system in Canada and other common law jurisdictions. Afghanistan developed a written legal code which was applied unless in the circumstances, the result was found contrary to the “tenets and provisions of Islam,” in which case the Qur’an prevailed. (Note 3) Typically, even at the trial level, judges sat in panels of three.

Experience as a lawyer was not necessary before being appointed as a judge. Anyone with a degree in Islamic or Sharia law could sit the examination to be allowed into a two-year judicial training program. 

Success in the program allowed the graduate to apply to the Ministry of Justice to serve as a judge. 

This streamlined training, combined with the fact that girls and women could not begin their education until 2001, resulted in women judges in Afghanistan being younger than we would expect. The age range of the Afghan women judges in Ontario is 30 to 42. 

Throughout the period between Taliban regimes, women in positions of power traditionally occupied by men were often resented and undermined. Sometimes they were attacked. 

in the Doha Accord between the USA and Taliban in January 2020, the American’s agreed to withdraw from Afghanistan in stages. In return, the Taliban agreed inter alia to protect women’s rights. In practice, the Taliban began once again to impose their repressive interpretation of women’s rights. 

Islamists were emboldened by the impending withdrawal of Western authority, and attacks on the judiciary grew more frequent. In January 2021 as detailed plans for withdrawal of Western troops were announced, two Afghan women judges of the Supreme Court were shot dead in Kabul on their way to work. This sent a critical message to the Afghan women judges that they were in increased jeopardy. 

On August 15, 2021, the Taliban took control of Kabul, the last centre to fall to their power. One of their first acts was to release Taliban prisoners, many of whom had been sent to jail by women judges for a wide range of crimes, including murder. With these criminals on the loose, all the women judges were in imminent danger. Some of them and their family members were directly threatened. 

[Documentary from Jennifer Lawrence and Malala Yousafi shown at the Cannes Festival in 2024 describing the experience of three women in Afghanistan after August 2021.]

There was already an active chapter of the International Association of Women Judges (IAWJ) in Afghanistan.  When many Afghan judges reached out to IAWJ colleagues in other countries, the IAWJ, along with a number of other international organizations, sprang into action. Over the course of the next few months, the IAWJ was actively involved in the extraction of these women and their families from Afghanistan. They were transported to safe havens, and the search began for countries that would give them a new home.

The Canadian government agreed to receive 40 Afghan women judges and their families as government-assisted refugees.