Testing the Effectiveness of International Norms: UN Humanitarian Assistance and Sexual Apartheid in Afghanistan

I. Introduction

This article is a study of the effectiveness of a particular body of international law, namely the norms prohibiting discrimination against women, in the context of the international legal and institutional responses to sexual apartheid in Afghanistan. While different methodological and conceptual approaches to international law agree on the need for empirical research, ¹ international relations theory can aptly pursue studies of the impact of international norms on the actual behavior of states and of other international actors. ² Investigating the effectiveness of international law in crisis situations yields important data on the actual strength of international norms. It also offers indispensable guidance for deciding actions in situations where conformity between norms and behavior is lacking, ³ and for "predicting future developments and designing institutions capable of affecting behavior in desirable ways." ⁴ As a piece of legal research, however, this analysis concentrates on the legal questions, and simply raises other questions--for example, on institutional culture--that are deemed to be of an essentially non-juridical nature, albeit related to the main issues here discussed. ⁵

More specifically, this article deals with the provision of United Nations (UN) humanitarian assistance in Afghanistan since the Taliban movement came to power in September 1996 and introduced harsh policies of gender discrimination that have progressively instituted a system of sexual apartheid. ⁶ In the first few weeks of its rule, the Taliban enacted measures limiting women's freedom of movement and right to work, and girls' access to schools. ⁷ The fact that gender issues became the focal point in the Afghani conflict did not come as a complete surprise, given that, while "[i]t would be an exaggeration to say that the war in Afghanistan was fought over the status of women," this "would not be wholly untrue." ⁸ In fact, the contrast was striking between the situation of women in the rural areas, and women in Kabul, who constituted the majority of the students at the University. ⁹ However, the values promoted by the Taliban are not simply "the values of the village, but the values of the village as interpreted by refugee camp dwellers or madrassa students most of whom have never known ordinary village life." ¹⁰ Afghanistan is not an isolated case. The ill-conceived policy of forcing refugees to live and receive aid only in refugee camps, normally established and run by the Office of the UN High Commissioner for Refugees (UNHCR), has exacerbated national, ethnic, and religious problems in other situations. ¹¹

Since the Taliban began its rule, humanitarian nongovernmental organizations (NGOs) and the UN have had to grapple with the gender policies of the new regime and decide whether to continue to operate in Afghanistan, and if so on what terms. At present, the UN is maintaining a large-scale operation in Afghanistan, having allocated some $100 million of humanitarian assistance in 1998 or about half of the total humanitarian aid to Afghanistan, the rest being provided by NGOs. ¹²

While primary responsibility for violations of women's rights remains with Afghanistan as a state both legally and politically, the conduct of the UN in response to these policies has not been in accordance with international law. A disquieting finding from the perspective of international law--and from the perspective of "those values that international law seeks to promote and protect" ¹³ --is that the UN not only failed to prevent and, later, to become an effective opponent of the gender policies of the Taliban regime, but that it actually incorporated discrimination against women in its humanitarian assistance and in the recruitment of local staff. ¹⁴ Arguments supporting these choices, which have been put forward in both UN documents and in scholarly work are examined in this article.

Two further-reaching and interdependent arguments are made relating to the incorporation of discrimination against women in the provision of...