Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Afghanistan (Ratification: 1969)

The Committee notes the observations of the International Trade Union Confederation (ITUC) and the International Organisation of Employers (OIE) received on 1 September 2023.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 111th Session, June 2023)

The Committee notes the discussion that took place in the Committee on the Application of Standards (CAS) of the International Labour Conference in June 2023 concerning the application of the Convention as well as the following conclusions of the Conference Committee.

The CAS noted with deep concern the repeated failure of the Government to respond to the Committee’s comments since 2019.

The CAS expressed its very deep concern at the significant deterioration of the situation of women and girls, including the situation of vulnerable groups of women, and other minorities since 2021.

The CAS deeply deplored the discriminatory prohibitions, bans and restrictions based on sex imposed on girls and women since 2021, which adversely impact on their ability to enjoy fundamental human rights and freedoms. The CAS also deplored the lack of legal framework explicitly defining and prohibiting direct and indirect discrimination based on at least all the grounds set out in the Convention, in all aspects of employment and occupation, as well as the lack of access to non-discriminatory formal justice mechanisms and effective remedies, in line with the Convention.

Taking into account the discussion, the CAS urged that, in consultation with the social partners, effective and time-bound measures be taken to:

• remove without delay all bans, discriminatory practices and unequal treatment based on sex imposed on girls and women to prohibit, limit or impede their access to secondary and higher education, vocational training, employment and all types of occupations in all sectors, and provide information to the Committee of Experts on the measures taken in this regard, and on the results achieved;
• put in place the necessary laws, policies and implementation strategy to prevent and address violence and harassment against girls and women, and provide information to the Committee of Experts on the measures taken in this regard, and on the results achieved;
• amend section 9 of the Labour law in order to explicitly define and prohibit in law direct and indirect discrimination in line with the Convention;
• ensure access to non-discriminatory formal judicial mechanisms and effective remedies;
• organize activities and implement a campaign to raise public awareness of the principles of non-discrimination and equality protected under the Convention;
• provide information on the adoption of all the above-mentioned measures on any progress made in that regard, as well as the results achieved on the equal participation of women in employment and occupation, including by providing statistical information, disaggregated by sex and occupation, on the participation of girls and women in education, vocational training and employment;
• develop a multidisciplinary and multi sectoral action plan to combat discrimination in employment, occupation and education, with ILO technical assistance and in close cooperation with the social partners and other relevant civil society organizations. In addition, coordinate with other UN agencies operating in the territory.

The CAS also called for specific action to be taken in order to facilitate access to education and vocational training and promote employment opportunities of persons with disabilities, in particular girls and women.

The CAS decided to include its conclusions in a special paragraph of its report.

The Committee notes that the ITUC notes with great concern the structural discrimination suffered by women in Afghanistan, that blatantly hinders their access to education, training and employment. According to the ITUC, this situation follows a phase, prior to the takeover by the Taliban in 2021, during which some improvements were recorded towards democratization and promotion of the status of women. The organization adds that, prior to 2021, under the previous administration: (1) 64 women were elected to parliament and 17 to the Senate; (2) four women were nominated in the cabinet; (3) there were four women ambassadors in embassies and 261 women judges in the courts and judiciary; (4) 1,500 women were working as defense lawyers, 2,500 women as journalists in private free media, and 3,650 women in the security forces; (5) 3.5 million girls were engaged in education; and (6) thousands of women were working in the private sector, who altogether constituted 30 per cent of the labour force in the Afghan labour market.

The Committee further notes the ITUC’s indication that, since 2021, the course of the progress made by the country was reversed and women and girls have been silenced and excluded from the public sphere. Since September 2021, Afghan girls over the age of twelve have been banned from going to school. Currently, 80 per cent of Afghan girls and young women who are eligible for school numbering about 2.5 million have been thrown out of school. Some 30 per cent of girls in Afghanistan do not have primary education, and even when girls are allowed to go to school, teaching is limited due to the lack of female teachers. In December 2022, university education for women was suspended until further notice, affecting more than 100,000 female students. Women are no longer allowed to work, including in the civil service. They are prohibited from traveling within and outside the country. The Afghanistan Labour Code, the Elimination of Violence Against Women Law, the Regulation of Women’s Protection Centres and the Child Rights Protection Law which stipulated fundamental rights, equality of treatment and opportunities between men and women are no longer applicable. In 2021, the Ministry of Women’s Affairs was closed and replaced by the Ministry of Prosperity and Prohibition. The Afghan Independent Human Rights Commission has been dissolved and twenty decrees have been announced by the Taliban to impose its religious beliefs, as well as its way of life, attire, and ethics based on its interpretation of Sharia Law. Specialized courts for the elimination of violence against women and public prosecutors’ offices have been closed, depriving women of access to justice. The economic crisis has worsened the situation of women, minors and other vulnerable groups in the country. Since 2021, 97 per cent of the population has been living below the poverty line. Forced marriages including of minors, as well as child labour of boys and girls engaging in hazardous works have increased.

The ITUC also alleges that the Lesbian, Gay, Bisexual, Trans, Queer, Intersex plus (LGBTQI+) community in the country continue to face grave human rights violations perpetrated by the Taliban, including threats, targeted attacks, sexual assaults, arbitrary detentions, and other violations. Many members of this community remain fearful that such discriminatory practices by the Taliban will continue to escalate, including the use of the death penalty against those in same sex relations and who therefore remain in hiding, fearing for their lives.

Under the subtitle “discrimination based on political opinion”, the ITUC also indicates that: (1) journalists faced growing restrictions including arbitrary arrest, unlawful detentions, and torture in response to reporting that criticized the Taliban, leading many to self-censorship; (2) some were beaten and faced other forms of torture while detained; (3) many fled the country; and (4) women television reporters were forced to almost cover their faces completely. The space for civil society organizations to document and report on human rights shrank significantly and independent human rights groups were unable to work freely. According to the ITUC, the Taliban have dismantled any space for peaceful assembly, demonstration or gathering. Taliban police use excessive and unnecessary force against demonstrators, and peaceful protesters are arbitrary arrested, detained, tortured and forcibly disappeared. Detained protesters face physical and psychological torture.

The leaders of the trade union centre, NUAWE, have been forcibly displaced and live outside Afghanistan. It is impossible for NUAWE and their members to operate or pursue normal activities to redress gender-based violations. The Supreme Labour Council and the commission for disputes resolution at work have ceased to function. Social dialogue is non-existent.

The ITUC also highlighted the comments of the Committee of Experts, namely the inadequate definition of the concept of discrimination in Afghan law and the lack of mechanisms for access to formal justice and urged that immediate action be taken to give effect to the conclusions adopted by the CAS in June 2023. The Committee deeplydeplores the current situation faced by women and girls in the country depriving them of education and employment opportunities. The Committee urges the de facto authorities to address this unacceptable situation and to respond without delay to the conclusions of the Conference Committee on the Application of Standards as well as to the observations from the ITUC.

The Committee notes that, in its communication, the IOE reiterates the opening and closing statements of the Employer members as well as the statement of the Employer member of France during the discussion that took place in the CAS in June 2023 as well as the conclusions adopted thy the CAS which are reproduced above. It further notes the IOE’s request to take duly into account all the information provided when examining the application in law and practice of the Convention.

The Committee further notes that the IOE expressed the hope that progress will be made in the application of the Convention, in line with the conclusions of the CAS and in close consultations with the most representative employers’ organization in Afghanistan. The Committee requests the de facto authorities to provide their comments in this respect.

The Committee notes the report of the Office of the High Commissioner for Human Rights on the situation of human rights in Afghanistan, which concludes that: (1) Afghan women and girls have been restricted from participation in most areas of public and daily life by the introduction of progressively more severe and discriminatory edicts, policies and other pronouncements; (2) these measures deny the rights of women and girls to access education, to work and to freedom of movement and impact access to health and other essential services; (3) in addition to the restrictions imposed by the policies themselves, their implementation has involved further violations of human rights; (4) The exclusion of women lawyers and judges from the legal system, along with the abolition of specialized Elimination of Violence Against Women prosecution units and courts, affects the rights of women and girls to obtain legal representation, equality before the law and access to justice; and (5) over two years on from their takeover of the country, there has been systematic regression of the rule of law and human rights in Afghanistan, particularly with regard to the rights of women and girls (A/HRC/54/21, 11 September 2023, paragraphs 32, 67, 69 and 74).

It also notes the recommendations of the High Commissioner to the de facto authorities to: (1) promptly rescind discriminatory edicts and decrees which curtail women and girls’ human rights and fundamental freedoms, enable their access to secondary and tertiary education and work, respect their freedom of movement and cease interference with other aspects of their daily lives; (2) in view of review of applicable laws being undertaken, ensure that all legislation applicable in Afghanistan is in line with international human rights law; (3) ensure access to justice and right to a remedy for survivors of gender-based violence through the formal justice system; and (4) promote and protect fundamental freedoms by replacing restrictive policies with human rights compliant ones (A/HRC/54/21, paragraph 75).

The Committee notes that, in a communication dated 27 August 2023, the de facto authorities indicated their commitment to the application of ILO Conventions and its reporting obligations. They also pointed out that the conclusions of the CAS were examined and, as per the decree of the Emir, a report under the Convention would not be submitted in 2023 due to insufficient time to reply but rather in 2024.

In these circumstances, the Committee notes with regret that the requested report was not received and firmly hopes that the announced report for 2024 will contain full information on the matters raised in its previous comments, which read as follows:

Articles 1(1)(a), 2 and 3 of the Convention. Discrimination based on sex. Restrictions on women’s access to education, vocational training and employment. The Committee notes that since August 2021, high-level United Nations (UN) bodies have expressed deepest concern regarding the increasing deterioration of human rights and fundamental freedoms of women and girls in the country (UN Special Rapporteur on the situation of human rights in Afghanistan, Statement, Urgent Debate on the situation of women and girls in Afghanistan, 1 July 2022; UN Security Council, Statement on the situation in Afghanistan, 24 May 2022; and High Commissioner for Human Rights, A/HRC/49/24, 4 March 2022). According to these bodies, as a result of the policies and practices adopted, severe restrictions have been imposed on women’s and girls’ freedom of movement, access to education, vocational training and employment. The Committee notes, more particularly, that: (1) since August 2021, women have been excluded from the workforce. They are also absent from the public administration, where all members are men; (2) since September 2021, women and girls have been denied access to secondary and higher education. Even where girls have been allowed to attend schools, instruction has been restricted due to the absence of women teachers; (3) the Ministry of Women’s Affairs and the Afghanistan Independent Human Rights Commission have been disbanded; and (4) specialized courts addressing the elimination of violence against women and prosecution offices have also been closed, thus leaving women without access to justice. The Committee notes that, in its resolution 50/14 on the situation of human rights of women and girls in Afghanistan, adopted on 8 July 2022, the Human Rights Council specifically: (1) condemned in the strongest possible terms all human rights violations and abuses committed against all individuals, including women and girls, in Afghanistan, including all forms of discrimination and violence, including sexual and gender-based violence; (2) called upon the Taliban in particular to reverse the policies and practices that currently restrict the human rights and fundamental freedoms of Afghan women and girls, to ensure that women and girls have opportunities and access to inclusive and quality education at all levels, equal to those afforded to men and boys, and to immediately open schools for girls of all ages; and (3) called for measures to ensure that victims of sexual and gender-based violence have access to justice and to effective remedies and reparations (Human Rights Council resolution 50/14, A/HRC/RES/50/14, 14 July 2022). Furthermore, the Committee notes from the recent report of the Special Rapporteur on the situation of human rights in Afghanistan that: (1) “the restrictions on Afghan women are disproportionately affecting their ability to sustain themselves, thereby further diminishing their enjoyment of other basic rights”; (2) “in early 2021, about 17,369 women-owned businesses were creating over 129,000 jobs, over three-quarters held by women, and many more unregistered women-owned businesses operated in the informal economy [and] by March 2022, 61 per cent of women had lost their job or income generating activities ...”; (3) “in the informal sector, women can no longer take products to market due to movement restrictions and the closure of many women’s markets”; (4) “women who continue to work often face harassment and abuse”; (5) “women have been excluded from the de facto justice system”; and (6) “female civil servants, except those doing jobs in health, security and education which cannot be carried out by men, were directed to stay home until conditions enable them to return to work in accordance with Sharia, although their male counterparts were called back” (A/HRC/51/6, 9 September 2022, paragraphs 38 and 39). The Committee strongly deplores the discriminatory prohibitions, bans and restrictions based on sex imposed on girls and women, in particular regarding their access to, and remaining in, education, vocational training and employment, both in the public and private sectors, and on their enjoyment of other human rights and fundamental freedoms, as well as their exposure to sexual and gender-based violence. The Committee therefore strongly urges that all steps be taken to: (i) remove without delay all bans, discriminatory practices and unequal treatment based on sex imposed on girls and women to prohibit, limit or impede their access to secondary and higher education, vocational training, employment and all types of occupations in all sectors; and (ii) prevent and address violence and harassment against girls and women. The Committee asks for information on the measures taken to that end and the results achieved on the equal participation of women in employment and occupation, including by providing statistical information, disaggregated by sex and occupation, on the participation of girls and women in education, vocational training and employment in both the public and private sectors.

Articles 1, 2 and 3. Protection against discrimination. Legislation. The Committee notes that, in its 2020 report to the UN Committee on the Elimination of Racial Discrimination (CERD), the Government indicated that a draft Anti-Discrimination Law had been developed, which defines direct and indirect discrimination and prohibits discrimination in employment and occupation (CERD/C/AFG/2-16, 27 July 2020, paragraphs 28 and 47). Recalling that the prohibition of discrimination in section 9 of the Labour Law is formulated in very broad terms, the Committee asks that all necessary measures be taken to explicitly define and prohibit in law direct and indirect discrimination based on at least all of the grounds listed in Article 1(1)(a) of the Convention (namely, race, colour, sex, religion, political opinion, national extraction and social origin), as well as any other grounds determined in consultation with employers’ and workers’ organizations, in accordance with Article 1(1)(b), covering all aspects of employment and occupation, both in the private and public sectors. The Committee asks for information on any progress made in that regard.

Article 1(1)(b). Discrimination against persons with disabilities, in particular women and girls. The Committee recalls that, while section 15 of the Law of Rights and Benefits of Persons with Disabilities provides for equal rights for persons with disabilities in terms of social, economic and educational participation, in practice, persons with disabilities had very low education and employment levels. The Committee notes that, in its resolution 50/14 on the situation of human rights of women in Afghanistan, the Human Rights Council expressed deep concern at the situation currently faced by girls and women with disabilities who are often subject to multiple, aggravated or intersecting forms of discrimination and disadvantages (A/HRC/RES/50/14, 14 July 2022). The Committee calls once again for specific actions to be taken in order to facilitate access to education and vocational training and promote employment opportunities of persons with disabilities, in particular girls and women, both in the private and public sectors.

Monitoring and enforcement. The Committee notes that, in her March 2022 report on the situation of human rights in Afghanistan, the UN High Commissioner for Human Rights expressed specific concerns about the fact that, “since August 2021, the previously operating legal and justice systems became dysfunctional, with little clarity as to applicable laws and the side-lining of justice sector personnel. Since then, the de facto authorities have gradually sought to resume the functioning of a country-wide justice system and courts under Islamic law with numerous appointments at the de facto ministry of justice” and de facto courts and initiated “an ongoing review of formal law’s asserted compliance with both Islamic Law and with the objectives and policies of the new de facto administration. In the meantime, de facto authorities continued administering justice in lieu of the former judiciary in a decentralized manner in consultation with religious scholars, elders, and local communities” (A/HRC/49/24, 4 March 2022, paragraph 60). The Committee wishes to recall that Afghanistan has a binding legal obligation to uphold the fundamental human rights and freedoms guaranteed in customary international law and human rights treaties that the country is signatory to, including the Convention which it has ratified. The Committee therefore urges that all steps be taken to ensure access to non-discriminatory formal justice mechanisms and effective remedies and to organize activities to raise public awareness of the principles of non-discrimination and equality.

[The Government is asked to reply in full to the present comments in 2024.]