Women and Children Last: The Destruction of the Afghan Women Judiciary1

HON. LISA WALSH, US DIRECTOR FOR NORTH AMERICAN REGION, IAWJ

In August 2021, the Taliban swept through Afghanistan, retaking the country without much resistance. The international community watched, aware that the fallout would affect women disproportionately—especially professional and educated women. International organizations and governments began rescue attempts of different groups of Afghans. A group of girls comprising the Afghan robotics team and a group of women cyclists were rescued by international groups. The United States began evacuating “Special Immigrants,” such as interpreters and drivers, who worked for and with the U.S. military and its contractors. But no efforts were made to secure the safety or evacuation of the women judiciary in Afghanistan. The Afghan women judges comprised AWJA, the Association of Women Judges of Afghanistan, a chapter of The International Association of Women Judges (IAWJ). IAWJ had a long history helping found and develop the Afghan chapter. IAWJ members and leaders knew the Afghan judges very personally and for a long time.

After July 2021, the women judges of Afghanistan began sending urgent messages to their IAWJ counterparts around the world. Soon after sweeping through the country, the Taliban began making death threats against the women judges—many of whom had sentenced the same Taliban members now taking control of the country. “Night letters,” or written signed death threats, were delivered to the homes of the judges. Their biometric information was seized from the Supreme Court of Afghanistan. Televised threats were made. And the women judges knew that these threats were not idle hyperbole but were very real indeed. Just eight months prior, in January 2021, two women judges who were employed at the Supreme Court of Afghanistan, were assassinated on the way to work.

In July 2021, as the Taliban moved through Afghanistan toward Kabul, a core group of international IAWJ judges and Dari interpreters quickly organized and began contacting the women judges of Afghanistan. The initial goal of the group was to be a repository for the vital documents, data, and family information of the judges. But it morphed into a support line for rescue efforts to save the lives of these women and their families.

Background

Women served as judges before the first Taliban takeover. But after the Taliban took control of the country in the 1990s, there were no women judges permitted to serve in Afghanistan. After 2001, U.S.

government entities and NGOs assisted in the reconstruction of the Afghan court system, including assisting in the creation of anti-corruption, anti-terrorism, family, civil, and criminal courts. The IAWJ obtained a grant to reprint the Afghanistan code of laws, which had been destroyed and banned under the Taliban. Before the collapse of Afghanistan in August 2021, there were 276 women judges sitting on all types of courts.

Over the last 20 years, Afghan women judges have served in all divisions of courts, except for positions as justices on the Supreme Court. Judge Anisa Rasooli, was the first and only judge nominated for a position on the high court, but she was never confirmed. In some cases, the women judges administered the rule of law side by side with the U.S. military, in the Bagram Detention facility, where they presided over terrorism cases affecting U.S. military personnel.

In 2003, the IAWJ formulated a United States-based training program for the Afghan women judges. This program—created and led five times from 2004 through 2009 by Judge Patty Whalen (ret.) in Vermont—secured U.S. State Department funding to train 18 women judges from Afghanistan, both in the United States and in Kabul. More funding and training occurred from 2011–2014. The training programs were effective and well-received by the Afghan women judges. The trainings had the side benefit of fomenting personal and meaningful relationships between Afghan and IAWJ judges.

Threats and Evacuation

Approximately 200 women judges have been safely evacuated and are now spread throughout many countries in the world. Few are in the United States. Now, there are 55 who remain in Afghanistan, along with their families. All who remain are stripped of their positions; most are in hiding or in safe houses. Most who remain have limited money and food and no guarantee of safety. All are under threat by Taliban or insurgent group members whose cases they heard, as well as by the former prisoners whom they sentenced. Presently, the Taliban are conducting house-to-house searches for documents, weapons, cell phones, and similar items. The remaining women judges move frequently, yet they, and their families, are still at great risk. Even where judges have been able to leave, their family members in Afghanistan remain in danger.

Before the fall of Kabul, the women judges were targeted with legitimate death threats. One judge sentencing a convicted criminal in her courtroom was told by her defendant, a Taliban member, “Today, you sentence me. Tomorrow, I sentence you.” He knew that once the Taliban took over, the prisons would be opened and prisoners released. In fact, this came to pass in August 2021. Calls, texts, and letters soon appeared at the women judges’ homes and on their phones, threatening death and reprisal. Why? Because they presided over male litigants. Because they sentenced Taliban and other insurgent group members. Because they served in family court tribunals and made decisions contrary to the interest of the fathers in these cases. Many of the trials were televised throughout the country. Thus, the women judges are known in the community by sight. Their addresses are also known. Their family members are known.

Incomplete Exodus

In August 2021, flights were dwindling, and the Kabul airport was closing fast. Only certain Afghans whose names were on U.S. Department of State manifests were permitted entry to the airport by U.S. soldiers at the gate. Many of the women judges and other women legal professionals, activists, and academics, were placed on lists for flights to other countries yet were barred from entering the airport gates because their names did not appear on approved lists. Spain, Poland, the United Kingdom, Australia, New Zealand, and Romania granted early visas to some of the women judges. To make it through the gauntlet of soldiers and barbed wire, these women were instructed to draw symbols on their palms with sharpie markers, wear the country’s colors, and shout the country name (“Espawhen they reached a certain gate at the appointed time. Judges bound for Spain and Poland made it through; those bound for Romania were held at a checkpoint. Some of the judges trudged through open sewers, holding their children over their heads to reach the gate.

One judge, who was in constant communication with IAWJ, relayed that the Taliban were beating Afghans who were trying to get through the gate. She begged for an escort to see them safely through. Her conversation with IAWJ through WhatsApp is transcribed here:

[21:52, 18/08/2021] Judge B: Is there any possibility of escort?

[21:52, 18/08/2021] Judge B: Plz let us know

[21:52, 18/08/2021] Judge B: We are in a very bad situation

[21:54, 18/08/2021] Judge B: Lots of people pushing and the

A handwritten death threat received by an Afghan woman judge in August 2021. When translated, it reads: “In the name of God, as the Islamic movement of Taliban has information, you [name] have worked with Americans and invalid government and you take decision contrary to Sharia and Islam and according to the Islamic Sharia; your punishment is death. At first; it is requested you to do holy works according to the Islam movement and do Jihad against Americans, atheisms and invalid governments and do your trustful and Islamic obligations and if you do other than it and you do not accept our request; thus; your punishment is death because your death is essential for us, the final decision of the Islamic emirate is that; you should end your duty and in case of any contrary; we implement our law and regulations on you.” talibans are hitting us

[21:54, 18/08/2021] Judge B: We do not know we are in right situation

[21:56, 18/08/2021] Judge B: We are at a crowded door do not know is this right?

[22:01, 18/08/2021] IAWJ: Let me check. Are you in contact with A. or with anybody at the airport

[22:02, 18/08/2021] Judge B: Yes but she said wait

[22:02, 18/08/2021] Judge B: Did not answer yet

[22:03, 18/08/2021] IAWJ: Who said wait? I know it is difficult but if I understand the situation better it will allow me to help more effectively

[22:06, 18/08/2021] IAWJ: V. is talking to the [authorities]you will be fine Inshallah.

[22:17, 18/08/2021] Judge B: I do not want to make you stressed but really it is terrible they are hitting people

[22:18, 18/08/2021] IAWJ: Can you wait somewhere safer?

[22:19, 18/08/2021] Judge B: We can go back to the parking if we do not miss the flight

[22:20, 18/08/2021] IAWJ: If you are in contact with A., have you asked her whether it is okay to wait in the parking area?

[22:24, 18/08/2021] Judge B: A. does not answer

[22:29, 18/08/2021] IAWJ: V. is trying to speak to the [country] ambassador at the airport. Try to keep yourself safe. Have faith.

[22:29, 18/08/2021] IAWJ: The plane is there and they are waiting for you

[22:31, 18/08/2021] Judge B: Ok thanks

On August 31, 2021, a bomb exploded at the gate where our judges and others had been trying to gain entry to the airport. Many were killed, including interpreters who had worked with the U.S. military.

In the past year, small groups of Afghan women judges and their families have been able to leave with the assistance of faith-based nonprofit organizations in the United States, international legal organizations, and other remarkable people and entities. Some of our judges were flown to “lily pad” countries—places of temporary refuge but not asylum. The United Arab Emirates, for example, allowed temporary refuge to Afghans in a detention camp called Humanitarian City while they seek visas for other countries. Some are in countries where they may seek asylum, but there is no community, no common language, no work opportunities, and little support. Very few have been granted entrance to the United States or Canada.

Searches and Threats Remain

Since August 2021, the lives of the women judges who remain in Afghanistan have been fraught with danger. Taliban officials have searched homes, and the women and their families have been living with extended family or in safe houses.

Why the US Has a Special Connection to Afghan Women Judges

Afghan judges worked with U.S. military and diplomatic entities and NGOs to build courts, establish, and enforce rule of law, and bring terrorists to justice. Women judges worked in courts that U.S. officials helped create and often enforced anti-terrorism and criminal laws. In many other countries, assignments to such courts are viewed as unsuitable for women. But in Afghanistan, the women judges were given some of the most dangerous and unpopular assignments. They viewed their own judicial work as a holy mission. They were fiercely proud of the jobs they did.

One judge assigned to the anti-corruption court proudly talks about one of her cases. She served on a three-judge panel hearing a trial on a corruption charge against a high-ranking public official. Her judicial counterparts refused to apply the clear penal law requiring a prison sentence. She was the only judge who wrote a dissenting opinion explaining that a prison sentence was required by law. The case was appealed to the Supreme Court of Afghanistan which overturned the majority opinion and upheld her sentence as correct. She recounts this as her proudest moment as a judge. She carried out the law even though supporters of the convicted government official fired automatic weapons outside of her house to intimidate her. She exemplified the rule of law, a shared ethos with our own court system.

The women judges undoubtedly worked in the U.S. interest, enforced rule of law principles under democratic legal traditions, and sentenced terrorists who were responsible for killing U.S. soldiers. One such judge presided over a terrorism case where a bomb killed and injured 400 people.

Who Are the Afghan Women Judges?

They are brave. They are resourceful, highly educated, capable, smart, and hardworking professionals. Those who were lucky enough to leave Afghanistan are often in legal and physical limbo. Those who remain in Afghanistan are in real peril.

A few of the women judges who remain in Afghanistan, as well as those who were able to escape, are willing to be interviewed. Those who are in Kabul are understandably nervous about revealing their identity or placing members of their family in danger. But with adequate safeguards, they understand the importance of getting their story to the world and are willing to take the risk.

They are overwhelmingly young and have small children. Some even gave birth in the days during and after the evacuation! Some are more seasoned and accomplished in their field.

Afghan Judges in the US

There are now 25 Afghan judges in the United States who served on the civil, criminal, narcotics, anti-corruption, and violence against women courts. Some left family members behind and may not be willing to show their name and face on television for fear their family will be punished.

In my roles as the U.S. director of IAWJ and board member of National Association of Women Judges, I am coordinating efforts to mentor and support these judges. I organized mentor teams around the country to help support and befriend these women. They are looking for work, learning English, and some are trying to reaccredit themselves in the legal profession.

Collateral Witnesses

A small group of leaders from the IAWJ, all judges serving in courts around the world, has worked for months assisting the judges with continued on page 39