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Frauen in Afghanistan: Keine Befreiung in Sicht
Afghanistan: "No-one listens to us and no-one treats us as human beings". Justice denied to women

Vergewaltigungen, Zwangsheirat und Gewalt in der Familie weit verbreitet. Ein Bericht von amnesty international

Am 6. Oktober 2003 legte amnesty international (ai) einen neuemn Bericht zur Lage der Frauen in Afghanistan vor. Er ist nur in englischer Sprache erschienen.
Im Folgenden veröffentlichen wir die Presseerklärung der deutschen Sektion von ai zu diesem bericht. Danach dokumentieren wir aus dem englischsprachigen Bericht die Einleitung und das Hintergrundkapitel sowie wesentliche Teile, die sich mit der Gewalt gegen Frauen befassen, einschließlich hierzu entwickelter Empfehlungen zur Verbesserung der Situation. Auf die Quellenangaben haben wir verzichten.
Der gesamte Bericht ist unter der Webadresse von ai zu erhalten: Afghanistan: "No-one listens to us and no-one treats us as human beings". Justice denied to women.


FRAUEN IN AFGHANISTAN: KEINE BEFREIUNG IN SICHT

Berlin, 6. Oktober 2003 - Fast zwei Jahre nach dem Sturz des Taliban-Regimes werden Frauen in Afghanistan weiterhin verbreitet Opfer von Gewalt. Viele Frauen werden zur Heirat gezwungen, erleiden Vergewaltigungen durch bewaffnete Gruppen oder Misshandlungen im familiären Bereich. Ihre gesellschaftliche Rolle macht es afghanischen Frauen sehr schwer, diese Menschenrechtsverletzungen anzuzeigen. Wenn es ihnen dennoch gelingt, ihr Leid öffentlich zu machen, werden sie oft dafür diskriminiert. amnesty international (ai) verkennt keineswegs die Schwierigkeiten, mit denen die afghanische Übergangsregierung nach 23 Jahren Krieg zu tun hat. Dennoch müssen die afghanische Übergangsregierung und die internationale Gemeinschaft mehr tun, um den Schutz von Frauen als Querschnittsaufgabe fest im Aufbau der Polizei, eines Gerichtswesen und in der Gesetzgebung zu verankern, fordert ai.

"Viele führende Politiker, darunter US-Präsident Bush und Außenminister Powell, hatten versprochen, dass der Krieg in Afghanistan den Frauen die Befreiung bringe. Doch noch immer sind Gewalt, Diskriminierung und Unsicherheit im Leben der Frauen an der Tagesordnung", kritisierte Barbara Lochbihler, Generalsekretärin von amnesty international Deutschland. Ein heute veröffentlichter ai-Bericht beschreibt die Situation detailliert. Der Bericht zeigt auch die Unfähigkeit und Unwilligkeit der geltenden Strafgerichtsbarkeit, mit der Gewalt gegen Frauen angemessen umzugehen. "Die Strafgerichte verletzen die Rechte der Frauen mehr als dass sie sie schützen", sagte Barbara Lochbihler. "Die Afghaninnen brauchen einen funktionierenden Rechtsstaat, der ihre Rechte wirklich garantiert."

Angesichts der unsicheren Lage in weiten Teilen Afghanistans fordert ai die deutsche Bundesregierung auf, hier lebenden Afghanen einen sicheren Aufenthaltsstatus zu erteilen. Derzeit setzen die deutschen Behörden die Abschiebung afghanischer Staatsbürger lediglich aus.

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Amnesty international:
Afghanistan: "No-one listens to us and no-one treats us as human beings". Justice denied to women.

1. Introduction

The rights and status of women in Afghanistan became an issue of global concern prior to the military intervention by a US-led coalition that led to the end of the Taleban regime in November 2001. The international community, including members of the coalition, made repeated undertakings that their intervention would support women in realising their rights. Colin Powell, US Secretary of State, declared that, "The recovery of Afghanistan must entail the restoration of the rights of Afghan women. Indeed, it will not be possible without them. The rights of the women of Afghanistan will not be negotiable".(1)

During the rule of the Taleban, the women's movement, Amnesty International and other human rights organizations repeatedly highlighted serious concerns regarding the situation of women in Afghanistan. The rigid social, moral and behavioural codes imposed by the Taleban included severe restrictions on women's freedom of movement, expression and association.(2) Widespread human rights abuses committed during the same period by regional commanders of the Northern Alliance were little publicized outside Afghanistan. Many of those commanders today hold powerful positions in the regions and in central government.

Two years after the ending of the Taleban regime, the international community and the Afghan Transitional Administration (ATA), led by President Hamid Karzai, have proved unable to protect women. Amnesty International is gravely concerned by the extent of violence faced by women and girls in Afghanistan. The risk of rape and sexual violence by members of armed factions and former combatants is still high. Forced marriage, particularly of girl children, and violence against women in the family are widespread in many areas of the country. These crimes of violence continue with the active support or passive complicity of state agents, armed groups, families and communities. This continuing violence against women in Afghanistan causes untold suffering and denies women their fundamental human rights.

The criminal justice system is too weak to offer effective protection of women's right to life and physical security, and itself subjects them to discrimination and abuse. Prosecution for violence against women, and protection for women at acute risk of violence is virtually absent. Those women who overcome powerful barriers and seek redress are unlikely to have their complaints considered, or their rights defended.

In certain regions of Afghanistan, women accused of adultery are routinely detained, as are those who attempt to assert their right under Afghan law and international standards to marry a spouse of their choice.

The criminal justice system will have to play a central role if women are to realize their rights in Afghanistan. The role of an effective, functioning criminal justice system is to provide remedy to victims of human rights abuses and to bring accused people to justice in accordance with international standards for fair trial. In Afghanistan, these two roles are not clear and may lead to the criminalization of victims themselves. Impunity and the failure to provide justice and protection from abuse perpetuate violence against women as the perpetrators do not consider themselves as criminals.

Legal reform and the rebuilding of the police force and judicial system with international support are currently being taken forward in Afghanistan. Such measures offer a significant opportunity to build capacity to protect the rights of women and girls. Amnesty International is, however, concerned that despite certain positive steps this vital opportunity will be missed. No clear strategy appears to be in place to ensure that discrimination against women within the existing structures will be ended or the capacity to protect the rights of women built. Key donors supporting reform of the police and judiciary have failed to ensure that their intervention will support protection of women's rights. In certain instances, international intervention may even be perpetuating and condoning gender discrimination. Protection and shelters for women at risk have not been created, and legal aid provision remains entirely inadequate.

In both planning and implementation, donors funding the reconstruction of the justice system have displayed an alarming lack of attention to the specific needs of women who come into contact with the justice system as well as to violence against women. These issues are key to human rights protection and development in Afghanistan.

The UN Security Council has expressed its commitment to giving gender equality a central place in post-conflict reconstruction and peace operations through the adoption of UN Security Council Resolution 1325 on "Women Peace and Security". Resolution 1325 and the Namibia Plan of Action on "Mainstreaming a Gender Perspective in Multidimensional Peace Operations" (Namibia Plan of Action) outline measures to protect the rights of women that should be integrated in such operations.(3) The particular need for law enforcement activities and judicial and legal reform to ensure protection of women's rights is detailed in the UN study on implementation of Resolution 1325.(4) The international community's involvement in Afghanistan is an important test case for seeing whether the will and resources to ensure such commitments are in fact implemented.

In early 2003, the ATA made a legally binding commitment to respect and ensure respect for women's rights through ratifying the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).(5) Afghanistan is a party to other important human rights treaties and has thus undertaken to guarantee that the rights contained in these instruments are afforded to all Afghans without discrimination.(6)

The ratification of CEDAW was a major development. Afghanistan has made a specific commitment to address women's rights in law and practice; in public, political, social and cultural life; as well as in personal status laws, education, health and work. The ATA has also ratified the Rome Statute for the International Criminal Court (ICC), which contains gender sensitive definitions of crimes and procedures to protect vulnerable victims and witnesses. This constitutes a model for domestic legal reform.

Amnesty International recognizes the difficulties facing Afghanistan as it seeks to recover from over 23 years of conflict. However, it is vital that measures to protect the rights of women are built into legal and constitutional reform, and integrated into policing and criminal justice processes.

A system of justice that meets the need of women and merits their trust will be essential if this critical challenge is to be met. Amnesty International believes that the rebuilding of the criminal justice system in Afghanistan must be designed with the intention to protect women from violence and to create the capacity to offer justice to victims.

Amnesty International calls on the ATA and the international community to act with urgency to protect women from violence, and to build a criminal justice system that is able to defend women's right to live free from violence. The organization believes that international standards offer Afghanistan a strong and coherent framework to undertake this essential task.

2. Background

The framework for the transitional process under way in Afghanistan was established by the Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions (the Bonn Agreement), signed on 5 December 2001. The process initiated by the Bonn Agreement is intended to lead to the establishment of a "broad-based, gender sensitive, multi-ethnic and fully representative government". The ATA, established by an Emergency Loya Jirga convened in June 2002, is mandated to govern until general elections planned for 2004 conclude the process of transition.(7)

A process of judicial and legal reform has been initiated as part of the transitional process in an attempt to rebuild Afghanistan's shattered legal system.(8) A Constitutional Commission has prepared a draft constitution and is carrying out public consultations in preparation for a Constitutional Loya Jirga, which is expected to be held in late 2003. Delegates to this gathering will discuss the work of the Constitutional Commission and adopt a new constitution for the country. While the draft constitution has not been formally made public, Amnesty International understands that extensive and sustained efforts by women in civil society and government have secured provision for the equal rights of women.

The Judicial Reform Commission (JRC) was established in November 2002 and has been mandated, as set out in the Bonn Agreement, to rebuild the domestic legal system "in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions". The JRC is responsible for preparing drafts of new Criminal, Criminal Procedure and Family Codes, and for surveying the existing judicial system in Afghanistan. It has also been involved in the establishment of training for judges. The JRC has consulted with the Ministry of Women's Affairs (MoWA) over provisions for women's rights to be included in these draft laws. However, the vital task of securing the necessary legal framework will be a considerable challenge.

The Afghan Independent Human Rights Commission (AIHRC) established in June 2002 has a large mandate that includes investigating and monitoring human rights abuses and implementing a program of human rights education. The AIHRC has integrated the issue of women's rights as one of its priority areas for action, and its headquarters in the capital Kabul and its seven provincial offices will monitor abuses.

The ATA remains reliant on international support. Planning and coordination of the work of the ATA and of international intervention is carried out through a mechanism of consultative groups on thematic issues. The process is led by the ATA, with relevant ministries chairing these groups. Each area of intervention and consultative group also has a contributing country as a lead donor. Of particular relevance to the work of Amnesty International on reconstruction of the criminal justice system are the consultative groups on police, judicial reform and human rights.

Specific capacity to address issues of gender equality and women's rights within the ATA is provided by the MoWA, which is also responsible for gender mainstreaming the work of the ATA and leads the Gender Advisory Group.(9) The lead donor on gender issues is UNIFEM (the UN Development Fund for Women). Departments of the MoWA have been opened in many provinces of Afghanistan. However, the work of the MoWA and international intervention on gender issues has been subject to criticism. Intervention has been described as symbolic rather than substantial and strategic. An assessment by a non-governmental organization (NGO) of the situation of women in Afghanistan after the fall of the Taleban considered that UN Security Council Resolution 1325 "lies dormant at the time when Afghanistan provides an opportunity for positive use of the principles of the resolution."(10) Despite the work of the Gender Advisory Group and the mechanism of consultative groups, it was reported that the ATA has so far failed to incorporate gender effectively into the national budget or the policy calculations of line ministries. Gender focal points appointed by the ATA in ministries have little authority to shape planning and policies.(11)

In March 2002 the UN Assistance Mission to Afghanistan (UNAMA) was established. It was mandated to assist the ATA with the implementation of the Bonn Agreement and is headed by the UN Secretary-General's Special Representative, Lakhdar Brahimi. UNAMA is active on issues of human rights and women's rights.(12) The structure put in place by UNAMA to provide for human rights and coordination of human rights and rule of law issues has been subject to criticism. The UNAMA staff structure includes a post of Senior Gender Advisor that has been vacant since late 2002. The focus of UNAMA gender activities is on intervention in individual cases of abuse, with the mission also attempting to support the MoWA in the political and legal aspects of its work.

Women seeking to realize their rights do so in a context of continuing insecurity and threat of violence. The ATA has been unable to establish control outside Kabul, where insecurity results from the existence of private armed groups under the leadership of powerful regional commanders and factional fighting between some of these armed groups. A number of reports have highlighted the specific effects on women of the lack of security and effective law enforcement in many parts of Afghanistan, and the failure to curtail abuses by powerful regional commanders.(13)

Women and girls are vulnerable to rape, sexual violence and abduction. The burning of a number of girls' schools has demonstrated the threat to provision for the realization of the rights of women. Many organizations have drawn attention to the insufficient international security provision, and the problems surrounding the response by ATA law enforcement. The UN-mandated International Security Assistance Force (ISAF), which has been credited with improving security in Kabul, does not have a mandate to work in other parts of the country although this is being discussed.(14) Provincial Reconstruction Teams (PRTs), consisting of between 50 and 100 civilian and military officials, have been deployed to some provinces to engage in civil-military and humanitarian activities.(15) A national process of disarmament of armed groups has not begun.

The prevailing insecurity has directly impacted on attempts by women to engage in political activities and ensure integration of women's rights in the process of reconstruction. Women delegates at the Emergency Loya Jirga were subject to intimidation, and activists have articulated a deep concern that their participation at the Constitutional Loya Jirga will be similarly threatened.

The question of the rights of women is central to the nature of Afghanistan's future government and society. Progress and emancipation have been characterized by some political forces as unIslamic and contrary to Shari'a (Islamic law). The history of Afghanistan demonstrates resistance to central government attempts to change traditions relating to women's status in the family and community. Women in civil society and government in Afghanistan however strongly assert that progressive formulations of law must be created and implemented to protect the rights of women.

The progress made on women's rights in Afghanistan following the Bonn Agreement in December 2001 has been significant in the face of unparalleled challenges. The issue has gained visibility, which has begun to encourage women to come forward to seek assistance in cases of violence. The development of draft constitutional provisions for equal rights for women and the development of a vigorous NGO sector provide real potential for change.

(...)

5. Combating violence against women and girls: a key challenge for the criminal justice system

Women and girls in Afghanistan are threatened with violence in every aspect of their lives, both in public and private, in the community and the family. Violence against women in the family including physical abuse and underage marriage is widely reported. Forced and underage marriage also occurs when women and girls are given in marriage as a means of dispute resolution by informal justice mechanisms. Rape of women and girls by armed groups continues to occur. The prevalence of violence against women and girls constitutes a grave threat to their right to physical and mental integrity. Amnesty International's research indicates there is a threat to the right to life of women and girls from violence in the family; women and girls have been killed and driven to suicide while the state has failed to take action.

Significant numbers of underage marriages, incidents of physical abuse in the family and other forms of violence were reported to Amnesty International. The vast majority had not been reported to the criminal justice system, and almost none had been subject to investigation or prosecution. Women were largely unsupported when suffering violence, and had very few means to leave violent situations.

Amnesty International's research indicates impunity for such violence on a vast scale. Such impunity perpetuates violence since perpetrators are free to consider their actions as normal and acceptable.

Further research on violence against women in Afghanistan is urgently needed. The findings of Amnesty International can only indicate the general scale of the problem and highlight some of the most common forms of violence that require the implementation of urgent measures by the ATA and the international community. Much more must be learned about the extent, patterns and types of violence against women and girls in Afghanistan.

5.1 Violence against women and girls in the family

5.1.1 Physical violence against women in the home

"If they didn't beat us, we wouldn't be afraid of them and do what they want."(34)

Violence against women in the home by husbands, male family members and, on rarer occasions, female family members was widely reported in the focus groups as well as by NGOs active on gender issues. Some women perceived violence as a means of control, while others saw it as caused largely by economic difficulties.

The issue emerged starkly in certain focus groups where some women spoke openly of routine abuse. In one focus group, women reported violence that was socially sanctioned. The participants described how a mullah(35) in a local mosque reportedly preached that it was acceptable for a man to beat his wife if she was behaving badly, but that he should restrain himself if she was behaving well.

Provincial departments of the MoWA and women's NGOs have also been approached for assistance by women experiencing severe domestic violence. An NGO outlined to Amnesty International the circumstances of a woman experiencing sustained violence from her husband. When the woman sought help, her husband attempted to injure her, tearing out her hair in order to prevent her leaving the house. The woman persisted in seeking help from the NGO who assisted her in taking her case to court, where a conviction of the husband and divorce were secured.

Few cases of abuse, however, are reported either to the authorities or NGOs. The extent of the problem emerges more clearly in hospitals than in any other state institution, when severely injured women seek treatment. According to one woman doctor interviewed by Amnesty International, "domestic and physical violence are normal practice - we have a lot of cases of broken arms, broken legs and other injuries. It is common practice in Afghanistan - it is not something we should say is not in our region because most Afghan men are using violence." A foreign doctor working in a hospital spoke of women victims of severe domestic violence undergoing hospital treatment at a rate of about one each week. No monitoring of domestic violence issues is undertaken in the hospital and the doctor stated that she believed domestic violence often went unrecognized as the cause of less serious injuries.

When asked about solutions to the problem of domestic violence, women in certain focus groups clearly perceived the impact of making such acts illegal and subject to punishment. As one focus group participant said, "Men would learn it is wrong and would stop beating us."

Amnesty International received reports of women and girls killed by family members. These included the shooting of a woman by her father for refusing his choice of husband. The district governor of the woman's village attempted to bring the alleged killer to justice, but was frustrated in his efforts when the alleged killer was given sanctuary by members of an armed group to whom he is reportedly affiliated. Amnesty International also received unconfirmed reports in focus groups of two 12-year-old girls killed by their husbands.(36)

Amnesty International's research indicated that in some parts of the country custom or tradition is used to legitimize the violent deaths of women. Amnesty International was repeatedly informed in Jalalabad, eastern Afghanistan, that where women and girls are alleged to have committed adultery or eloped, the family would deal with the situation by killing the girl or woman involved. In some parts of Afghanistan, adultery, "running away from home" and unlawful sexual activity are referred to as zina crimes and are subject to criminal prosecution. Some women in such circumstances are also at risk of being killed if released. The following quotes from women participants in focus groups indicate the diverse circumstances where women may be at risk:

"A man killed his wife when he found her with a cousin. No one did anything about the case because he had strong reasons."

"When a woman is killed [in a case of alleged adultery] it is the family of the woman who carries out the killing…These things are secret, they are happening inside homes."

"They [family members] will kill man and woman [in certain cases of rape]. If married she should go back to her father, because her husband will not keep her...If unmarried she will be killed."

"Where a father kills his daughter, he will never go to court, no one will be aware because it is a big shame and no one can bear it."

"If a woman or girl doesn't want to respect what her family is saying, of course she will commit suicide or her family will do this to her [kill her and make it appear as suicide]."

Physical violence against women in the family is an abuse of their human rights. The Committee on the Elimination of Violence against Women has stated, "Family violence is one of the most insidious forms of violence against women. It is prevalent in all societies. Within family relationships women of all ages are subjected to violence of all kinds, including battering, rape, other forms of sexual assault, mental and other forms of violence, which are perpetuated by traditional attitudes. Lack of economic independence forces many women to stay in violent relationships. The abrogation of their family responsibilities by men can be a form of violence, and coercion. These forms of violence put women's health at risk and impair their ability to participate in family life and public life on a basis of equality."(37)

5.1.2 Underage and forced marriage

"A girl should have her first period in her husband's house and not her father's house."(38)

The legal age for marriage in Afghanistan for men is 18 and for women is 16 years of age.(39) Clear data on actual marriage age is lacking as provisions to register marriage and birth are absent in many areas, and many people do not know their exact age. Age of marriage varies between urban and rural areas and according to ethnic background and economic circumstances.

However, a clear pattern of widespread underage marriage of girls emerges, particularly in rural areas. It appears relatively rare for girls to remain unmarried by the age of 16. Amnesty International asked focus groups of women about the typical age of marriage in their communities. All groups gave the age at which girls married as typically between 12 to 16 years. A women's shura (traditional Afghan decision making body) in Nangarhar Province in eastern Afghanistan reported marriage age for girls to be between 10 and 12 years in the region.(40)

On occasion, girls are forced into marriage below the age of puberty, sometimes at extremely young ages. Such cases include that of "Fariba", aged eight, who was given in marriage to a 48-year-old man.(41) The father of the girl reportedly received 600,000 Afghani for his daughter.(42) Fariba was reported to have suffered sexual abuse by the husband. A relative approached government officials and Fariba was removed from her husband's home and placed in an orphanage. However, at the time that this case was brought to the attention of Amnesty International, no criminal charges had been brought against either the girl's father or her husband, and a divorce had not been granted by the judge who heard the case to determine the status of the marriage.(43)

Few girls have the opportunity to express their distress. "Fatima", aged 17, is a rare example of a girl who fled a situation of underage marriage. Fatima related to Amnesty International how she was sold by her father into marriage to a much older man at the age of 14. Her father used the proceeds to buy a car. Her new husband lived far away and, since he was from a different ethnic group, spoke a language with his family that she could not understand. Fatima described how she had been given presents and clothes by her family but did not understand at first that she was to be married. When she realized she tore off the wedding clothes and protested, but could not prevent the marriage. She also related how she was raped by her husband.

Fatima left her husband and returned to her father's house. She is now in a desperate situation where her husband's family and father's family are negotiating over financial arrangements related to her marriage situation. Fatima told Amnesty International that she would definitely go to a shelter if there was one in her area, and wants to seek training to be able to support herself. She is being supported by a woman NGO leader who lives near her and whom she visits frequently.

Women in focus groups described marriage practices that denied them the right to choose a spouse. A husband would be chosen by the father or another close male relative, and the marriage imposed upon girls and women, if necessary in the face of protest and against their will. By the time of the formal ceremony of marriage, usually attended by three male witnesses, any resistance would have been progressively overcome, and a girl or woman would have great difficulty refusing. This oppressive process reflects in part the fact that girls and women are treated as an economic asset, with families receiving a price from the family of the groom on marriage in all communities where Amnesty International conducted research. They are also reflective of the pervasive control exerted by husbands and male relatives on women's lives.

Amnesty International considers that underage marriage amounts to denial of the right to physical and mental integrity, and may also amount to cruel, inhuman and degrading treatment. Underage marriage is a breach of Afghan law and Afghanistan's international obligations. Amnesty International considers that forced marriage of women is a denial of the right to mental and physical integrity. Forced marriage is also a breach of Afghan law and Afghanistan's international obligations. The ICCPR provides that no marriage should be entered into without the free and full consent of the intending spouses. "State parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of man and woman: (a) the same right to enter into marriage; (b) the same right to freely choose a spouse and to enter into marriage only with their free and full consent".(44)

5.1.3 Consequences of violence in the family

"Every life matters, whether it be an American life or the life of an Afghan girl."(45)

Doctors, NGOs and focus group participants in certain regions reported to Amnesty International a pattern of suicide by women made desperate by sustained violence in the family. A common form of suicide is self-immolation (death by fire). No data is kept by the authorities, but one NGO Amnesty International met has written up the circumstances of a number of suicides by women.

A doctor in Jalalabad hospital reported seeing about one case of suicide by self-immolation each month in the main hospital. She said that "after they die we understand from the family that this is because of cruelty or violations they suffered from the husband or his family." The incidence of such cases was reported at around two each week by a doctor working in Herat hospital.

Amnesty International documented several individual cases of suicide arising from violence against women. An international organization working with community groups in Afghanistan reported the case of a young girl whose father beat her so much that she killed herself by self-immolation. In another case a woman fell in love with someone that her family did not approve of. Her brother became aware of this, and was reported to have beaten her so severely that she committed suicide by taking an overdose of tablets.

Although the exact rate of such suicides remains unknown, their apparent frequency reflects the very few options and forms of assistance available to women experiencing physical violence in the home. A group of school teachers Amnesty International spoke to expressed the opinion that suicide was more common than divorce in their area of the country.

The abuses of the human rights of girls resulting from underage marriage illustrate how this practice sustains discrimination and the subordination of women. In a situation where girls are married without full consent or at an age where they are too young to give meaningful consent to sex, the risk of sexual assault and rape is clear. Amnesty International research also indicates a particular vulnerability among underage brides to physical abuse.

The extent to which the autonomy and freedom to make major life choices is denied to women and girls by the practice of forced marriage is striking. It denies them the right to physical integrity and often infringes their right to health and education.

Discrimination in access to education results from early marriage. Few communities where Amnesty International conducted research in rural areas reported girls receiving schooling after they reach the age of around 12. Focus groups reported that girls generally end their schooling on marriage. This is confirmed by a study of school drop out ages undertaken in Bamiyan province, central Afghanistan. School drop out ages for girls were found to be between 11 and 14 years.(46)

The right to health of girls is also compromised by the early onset of pregnancy and childbirth. Information from a group of women teachers provided in the course of Amnesty International's research indicates the possible impacts. The group stated that at least half of young women in their area die in childbirth, owing to lack of facilities and young age. The impact on adolescent girls of childbirth before full physical maturity has been noted by the CRC.(47) Detrimental effects on the health of mother and child in the case of early marriage have also been shown by research, and highlighted in particular in the case of Afghanistan.(48)

5.1.4 Recommendations

• The ATA must publicly and unequivocally condemn all violence against women and girls including that occurring in the family. The ATA must publicly commit itself to fulfil its responsibility to act with due diligence to combat violence against women in the family.
• With the support of the international community, Afghanistan should develop a comprehensive strategy that addresses violence against women as a rights and development priority for the nation. The strategy should be informed by the recommendations of the Special Rapporteur on violence against women and adapted to the specific context of Afghanistan through a process of public consultation.(49)
• The process of constitutional and legal reform currently under way should set in place the necessary legal framework to ensure protection and full redress for abuses. This framework should include remedies to enable women to leave situations of abuse and forced marriage, and girls to be assisted in leaving situations of abuse and forced marriage. Criminal penalties should be introduced for forced and underage marriage, subject to the principle of non-retroactivity.
• The ATA must introduce measures to ensure forced and underage marriages cannot be conducted in future, and to ensure women have fully and freely consented to marriage. A system of consistent registration of marriage and divorce must be established.
• Immediate measures must be taken to ensure deaths of women and girls that may have been caused by violence in the family are investigated and perpetrators brought to justice. Law enforcement agencies must be informed of their responsibilities to investigate violence against women and killings of women and girls that may have been caused by violence in the family. The ATA must ensure through education and outreach that community leaders know that deaths of women under suspicious circumstances will be subject to full investigation.
• Linkages should be established between hospitals and the criminal justice system to facilitate investigation of serious injuries caused by violence against women in the family.(50)
• The international community should support detailed research and data collection on the incidence and nature of violence against women, in particular violence in the family, to facilitate targeted policies and intervention. A program to increase Afghan women's activists' research, interviewing and other skills would be valuable.

5.2 Violence against women in the community: exchange of women and girls in dispute resolution

As documented in Amnesty International's report "Afghanistan: Re-establishing the Rule of Law" forced marriage of girls and women also occurs as a result of decisions of informal justice mechanisms, such as jirgas and shuras.(51) This practice was reported as occurring in all provinces where Amnesty International conducted research. All except one focus group reported the giving of girls, usually below the legal age of marriage, as the preferred means of resolving cases of unintentional killing. In some areas, it was reported that elopement might also be resolved through the exchange of girls.(52) Typically, the family of the perpetrator will be ordered to provide a girl, or girls, to the family of the deceased or of the girl who has eloped, in order to compensate for the alleged crime. Girls "exchanged" are then forcibly married to male members of the victim's family.

A community leader in the Mazar-e Sharif region recounted to Amnesty International how he had participated in the decision to promise a 10-year-old girl in marriage in order to make reparation to a family whose daughter had eloped. The community leader informed Amnesty International that the marriage would be consummated when the girl was around 12.

In another case, a woman relative of a murder suspect related how she had been coerced into providing the family of the alleged victim with two young girls as compensation. The woman informed Amnesty International that the two girls were aged eight and 15.

A participant in a focus group told of the distress of an eight-year-old girl who she witnessed being given in exchange in a dispute resolution. This woman saw the young girl being carried off crying by the man to whom she was given, as if she was "a prize in bozkashi".(53) Women in focus groups and NGOs spoke of the particularly harsh treatment of girls given in dispute resolution and subsequently married. Their own families might sever contact with them, and the family of the groom regards them as tainted by the circumstances of the marriage.

Amnesty International is concerned that the practice of exchange of women and girls constitutes torture or cruel, inhuman or degrading treatment.

5.2.1 Recommendations

• The exchange of girls as a means of resolving disputes in the community and dealing with criminal offences is a clear violation of international human rights law. The practice must be stopped immediately and it should be criminalized under Afghan law.
• The ATA must ensure that informal justice mechanisms do not abuse the right of women to freely choose marriage partners and do not abuse the rights of girls. Informal justice mechanisms must fully conform to Afghanistan's international obligations to respect the rights of women and girls.
• The ATA must engage provincial and district governors in urgent efforts to bring an end to the exchange of women and girls as a means of dispute resolution. Governors are in frequent contact with community leaders and elders active in informal justice mechanisms. The ATA should support governors in developing alternative forms of resolution to disputes in the community. The capacity of the formal justice system must be developed, particularly in rural areas, to provide due process in addressing serious crimes currently dealt with by informal justice mechanisms.

5.3 Violence against women by armed groups

"During the Taleban era if a woman went to market and showed an inch of flesh she would have been flogged, now she's raped."(54)

The failure to establish security and legitimate government in many parts of Afghanistan has left women and girls at continuing risk of rape, sexual violence and intimidation. The Afghan state has a duty under international treaties to which it is a party to exercise due diligence to ensure that all cases of rape or other serious sexual assault are effectively investigated and the perpetrators brought to justice.

Abuses perpetrated by armed groups against women and girls since the fall of the Taleban government in November 2001 include rape, abduction, and forced and underage marriage. The exact extent and prevalence of such abuses remains unclear owing to the reluctance of most victims to speak out and the limited capacity for monitoring. However, the opening of regional offices of the AIHRC is beginning to increase the amount of available information about such violence. The initial work by the AIHRC in this area indicates that the abuse of women by armed groups is so common that the body's research department has decided to maintain a separate category in its files for such incidents.

Amnesty International's research indicates a systematic pattern of abuse against women and girls in Mazar-e Sharif, and incidence of abuse in both Nangarhar and Bamiyan provinces. Human Rights Watch has reported on the occurrence of rape of women, girls and boys in southeast Afghanistan, including in Laghman, Ghazni, Gardez and Nangarhar provinces, and in Paghman district of Kabul province.(55)

Incidents reported to Amnesty International included the rape of four girls by members of an armed group. The youngest, aged 12, was unconscious as a result of her injuries when brought to hospital by her parents.(56) UNAMA has investigated a number of incidents of abuse of women and girls by members of armed groups, including incidence of forced marriage of girls as young as 12.

Amnesty International is deeply concerned by reports that in certain cases, members of the police or the Afghan National Army (ANA) may be involved or colluding in such abuses. In one incident, said to be indicative of a pattern of abuse, a woman was reported to have been detained at an ANA checkpoint and handed over to the commander of an armed group.(57) Her fate remained unknown, but it was understood that she would be transferred as a "gift" to different commanders. Amnesty International was informed of incidents of police colluding in such abuses. There are also reports of women's reluctance to report such abuse because they fear government involvement. One individual told Amnesty International, "These cases remain secret because if a government official becomes aware they will start abusing the woman".

Testimony on such abuses is extremely difficult to collect owing to the shame and secrecy surrounding rape and the fear inspired by perpetrators. In Afghanistan, where the criminal justice system is perceived as ineffective and prosecution for rape is extremely rare, few incidents of rape and sexual violence are reported to the authorities. The possibility of any investigation by the criminal justice system may be entirely ruled out when powerful members of armed factions exert control over the police and the judiciary. The only form of restraint on perpetrators appears to be the rare occasions where punitive action is taken by the leaders of armed groups against their own followers.

In parts of Afghanistan, women have stated that the insecurity and the risk of sexual violence they face make their lives worse than during the Taleban era. Women expressed a greater sense of fear and intimidation arising from the behaviour of illegally and heavily armed groups in parts of Mazar-e Sharif and Jalalabad.

The occurrence of sexual violence by armed groups is used as a justification for the imposition of restrictions on women's rights and freedoms. Women spoke of the risk of such attacks being used to justify restrictions on their movement decided upon by male family members.(58)

The impact on the life and prospects of rape victims may be devastating. Loss of virginity is perceived as ruinous to the prospects of women and girls. As one witness to the aftermath of rape on a young victim commented, "What's the point of investigation? Her life is over." Such stigma compounds the trauma and suffering of victims.(59) No support or professional services are available to women victims of rape in Afghanistan.

Amnesty International also has concerns about the effectiveness of intervention on individual cases of abuse of women's rights undertaken by UNAMA. Amnesty International understands that UNAMA makes use of informal mediation, including with members of armed groups involved in abuses and generally does not make outcomes publicly known. Reliance on mediation does not support ending the prevailing impunity of perpetrators of violence against women or facilitate legal redress. As detailed later in this report, there are no available forms of shelter that can guarantee safety for victims of violence. Intervention in cases of violence against women requires experts with a specific background on violence against women and the trauma it causes, and on gender sensitive approaches to interviewing. Amnesty International understands such expertise is not available in UNAMA.

5.3.1 Failure to protect women participating in the post-conflict political process

The failure to protect women's physical security as outlined above has affected women participating in the political process. Women speaking out on issues of women's rights have not been protected by ISAF or the ATA. Women's delegates to the Emergency Loya Jirga in June 2002 faced intimidation and threats allegedly by members of armed groups loyal to powerful regional commanders. The ATA and the international community have a responsibility to secure an environment in which people can speak out freely. Debate is crucial to achieving inclusive solutions to complex issues of abuses of women's rights. Women's rights activists are deeply concerned that provision for security at the Constitutional Loya Jirga will be as ineffective as that provided at the Emergency Loya Jirga in June 2002.

5.3.2 Recommendations

• Increase security throughout Afghanistan to protect women and girls from rape and sexual assault by armed groups. The international community must take immediate steps to ensure women and girls are protected from human rights violations by members of armed groups. Active consideration should be given to the extension of patrols by ISAF beyond Kabul, with a focus on areas where high levels of human rights violations by armed groups are reported. A specific mandate should be given to ISAF to protect women and girls from abuses by armed groups. Such a mandate should be implemented through training and codes of conduct for ISAF members on issues of women's rights.
• The international community must increase the focus on and resources for the protection of women and girls from gender-based and sexual violence. UNAMA must fully commit to women's rights protection. UNAMA staff working on cases of violence against women must have specialized training on gender issues, including appropriate behaviour toward victims. All UNAMA staff should have substantial gender training.
• The ATA with the support of the international community must provide shelter and support services for women and girls experiencing trauma or stigmatization by their communities because of rape or sexual assault and put in place appropriate security provisions to guarantee the safety of victims.
• Measures must be taken to end the impunity of members of armed groups for abuses of women's rights. The ATA with the support of the international community must act with urgency to investigate alleged abuses and to detain and prosecute alleged perpetrators according to international human rights standards. Effective security to enable arrest and trial of alleged perpetrators must be provided. Active consideration should be given by the international community to support provision of security by ISAF. Active consideration should be given to the deployment of international policing experts with experience of working on issues of violence against women in post-conflict environments who are able to support the work of the ATA and police in investigating alleged incidents of rape and sexual assault.
• Ensure members of the ANA are not complicit in acts of violence against women: the Ministry of Defence and foreign troops engaged in supporting the ANA must take measures to ensure ANA commanders and soldiers are informed of their responsibilities under international law with regard to women's rights, and any allegation of abuse must be subject to full and independent investigation and appropriate sanction.

5.4 Vulnerability of women to sexual abuse in custody

No safeguards are in place to protect women from sexual abuse while in police custody and in detention. No procedures exist for women to safely report abuse in custody. Amnesty International has received unconfirmed reports of sexual abuse of women prisoners in official detention centres in Herat, Mazar-e Sharif and Kabul. In Herat in early 2003, a riot by women prisoners was alleged to have been a response to sexual abuse by staff. Assaults by staff and incidents of members of armed factions being allowed to abuse women prisoners were reported in Mazar-e Sharif. Amnesty International is also concerned that safeguards are not in place to protect women in police custody.

Amnesty International was informed that when women are arrested for adultery in Jalalabad, they face the risk of sexual abuse and transfer to different police stations where they are repeatedly abused. One woman told Amnesty International: "If the commanders arrest a girl in a case of adultery when her case is going to the first district police station, they are sexually abusing her saying you had relations with a man so you should with us also. Then they transfer the woman from station to station." This case also highlights increased vulnerability to abuse owing to the involvement in some cases of commanders or members of armed factions with no formal status in the criminal justice system. The system in certain areas such as Jalalabad appears to be permeated by abuse. The general absence of oversight, accountability and police training contributes to the vulnerability of women in custody.(60)

The UN Special Rapporteur on torture has stated that rape and other forms of sexual assault on women in detention violate the inherent dignity and right to physical integrity of the human being, and constitute torture.(61)

5.4.1 Recommendations

• The ATA must review provision for the security and treatment of women in custody and detention, and ensure their rights are safeguarded according to international standards.
• The ATA must establish clear rules of procedure and safeguards for the treatment of women prisoners and women in policy custody based on international standards, and clearly display these in prisons and detention centres.
• Ensure that any reports of violations of the rights of women including rape and sexual assault, while in custody or police detention, are promptly, thoroughly, independently and impartially investigated. Perpetrators should be brought to justice and victims receive redress. Violations of the rights of women must be treated as criminal offences and criminal procedures followed. Penalties sufficient to act as a clear deterrent to the commission of violations of the rights of women, including removal from office or criminal prosecution, should be established.
• Women prisoners and women in detention must be informed of their right to make complaints against prison staff and staff of detention centres. Establish mechanisms to receive complaints in confidence and in a secure environment.
• Internal and external oversight mechanisms to ensure full accountability of prison and detention centre staff must be established. Rigorous efforts to ensure members of armed groups and those outside the police and prison services do not have access to women detainees and prisoners must be initiated urgently.
• Women prisoners and women in detention should be guarded by appropriately trained female staff. Efforts to recruit and train increased numbers of female prison and detention facility staff must be initiated. Access to doctors trained in appropriate forensic techniques should be ensured according to the manual on effective investigation and documentation of torture and cruel, inhuman or degrading treatment or punishment - "the Istanbul Protocol".

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