The Lovers

by Rod Nordland

  The EVAW law made rape a criminal offense; in the Afghan penal code, it had been lumped together with family and social issues to be handled by traditional shariah-law remedies. When rape was prosecuted criminally, it was as the crime of adultery. If the rapist had committed adultery, so had the victim, and many rape victims in Afghanistan have gone to jail for their rapists’ crimes. Beating one’s wife was criminalized by the EVAW law, too; previously the courts had considered such cases only when the woman suffered grievous bodily harm or was killed. Often, even in those cases, prosecutions were not pursued, or if they were, penalties were slight.20 Under the new EVAW law, harmful or abusive traditional practices such as baad and baadal were forbidden, which both the Communists and the Taliban had previously done. Under the EVAW law, forcing a woman to marry someone against her will was deemed a crime, as was “denial of relationship,” the indignity from which Zakia and Ali had fled.

  Probably more important, the EVAW law decriminalized a host of actions that had been crimes and functioned to keep women in line. Accusations of running away from home, though not mentioned in the penal code, were commonly used against any female of any age who left her family without the permission of her husband, father, or brothers. The EVAW law forbade charging women or girls aged sixteen or over as runaways.

  Afghanistan’s women indirectly have the Taliban to thank for the EVAW law; their excesses led to the international community’s determination to see Afghan women protected, and it was not lost on Western policy makers that many of those who replaced the Taliban, especially those old jihadis, were not much better when it came to women’s rights. The EVAW law repeatedly acted as a brake on the worst excesses of the Taliban’s successors, especially when the international community put its weight behind the law.

  The Taliban era had brought the plight of Afghan women vividly to the attention of the American and European publics. They had watched in horror as the Taliban imposed their extreme interpretation of shariah law on Afghan women, banning them from education, closing all girls’ schools, prohibiting them from employment, and ordering them to stay in their own homes unless dressed in a full-length burqa and accompanied by a close male relative, a mahram, usually meaning a brother, father, son, or husband. After twenty years of civil war, confinement of women to their homes was a harsh requirement, since in many families the menfolk had been killed or disabled during those years and their widows had become the only source of support for their children.21 Ordering them to stay indoors was tantamount to a death sentence.

  The Taliban enforcers from the Ministry for the Promotion of Virtue and Suppression of Vice prowled the streets of Kabul, beating women with sticks if they were not fully covered and properly accompanied outside the home.22 Sometimes they beat them just for being outside the home at all. They beat men for transgressions as well, such as failing to grow a full, untrimmed beard or wearing Western clothing or listening to music on a radio in the car. But they reserved their greatest enthusiasm for punishing women. Women convicted of serious moral crimes would be taken to the National Stadium and, in front of a capacity crowd that had been rounded up and ordered to attend, stoned to death or shot in the head, always piously covered up by a robin’s-egg blue burqa as they sat in the dirt waiting for the end.23

  One of the most publicized such cases was that of a mother of seven named Zarmeena, who was convicted by a Taliban court of murdering her abusive husband and whose execution was secretly filmed by the Revolutionary Association of the Women of Afghanistan (RAWA).24 Zarmeena’s children were in the stadium, accompanied by their dead father’s relatives; moved by the children’s piteous pleas for their mother’s life, their father’s family invoked the shariah-law provision allowing them to forgive her and exempt her from the death penalty. The Taliban refused and carried out the execution anyway. On the RAWA video, her children could be heard sobbing and crying “Mama!” as the Taliban executioner fired into Zarmeena with an AK-47 assault rifle at point-blank range.

  So when the American government under George Bush went into Afghanistan to avenge the attacks of September 11, 2001, there was more than just support for the goal of destroying Al-Qaeda’s bases and the Taliban regime that tolerated and encouraged the extremists’ presence. There was a sense of relief that a regime that had so brutalized its women could finally be brought to an end. Few would have advocated an invasion on those grounds, but this was a welcome outcome. Once both the Taliban and Al-Qaeda were driven into Pakistan, there was little appetite among the European allies and, as time went on in the United States, for a continuing involvement in Afghanistan. Support for Afghan women and redressing the gender terrorism of the Taliban’s six-year-long regime was the one thing everyone could agree was a worthy cause.

  After the American defeat of the Taliban, the Western nations met in Bonn, Germany in early 2002 to agree on a plan to establish an interim government that would draft a new constitution and hold elections.25 From the beginning they made it clear to their Afghan partners that there was one redline more important than all others: gender equality.26 When a new constitution was drafted—by American scholars and legal advisers for the most part—it enshrined both gender equality and shariah law, a difficult cohabitation but one that other Islamic countries have negotiated successfully.

  From the beginning it was a hard slog, as Western egalitarian concepts confronted the realities of Afghan patriarchy. In 2003 a constitutional loya jirga was convened at the encouragement of the Western powers to approve the new constitution.27 A loya jirga is a grand consultative assembly in which elders are invited from throughout the country to decide on major issues. It’s a venerable tradition in Afghanistan, from the days when most people were nomadic or seminomadic tribals who would meet to hash out issues like grazing rights or alliances against invaders. It was in some ways a quintessentially democratic institution, but there was a major problem with it: Traditionally, only men could attend, and mostly only old men. At American insistence, though, the 2003 loya jirga did have women delegates, some of them extraordinarily outspoken. They were women who saw a unique, historic opportunity and summoned the courage to seize it. Few showed more grit than a feisty young woman named Malalai Joya, who had been chosen to represent the remote western province of Farah. Malalai stood up at the loya jirga and denounced the gathering as an assemblage of war criminals and warlords. “They are the most anti-women people in the society, who wanted to … who brought our country to this state, and they intend to do the same again,” she said. After a stunned silence, several of the men tried to attack her physically, and only intervention by United Nations guards prevented them from getting to her. The chairman of the jirga, Sibghatullah Mujadeddi, derided her as a Communist, which she was not—except from the old jihadi viewpoint that equated feminism with Communism.28

  Malalai’s criticism was not overblown rhetoric. In addition to being warlords, many of those former jihadi leaders and jirga delegates were also, as many reports since have documented exhaustively, mass murderers, responsible for the massacres of civilians and prisoners of war during the civil-war and Taliban-war years.29

  Malalai’s courageous stance at the jirga instantly made her a worldwide symbol of female defiance, but within a few years she became a symbol of another Afghan phenomenon: the exodus of its best people, especially among women. The old jihadi-era warlords who dominated the loya jirga tent continued to call for Malalai to be killed and eventually drove her from Afghanistan permanently. Now Malalai rarely returns to her country.30

  American and European policy makers were aware of the challenges of bringing gender equality to Afghanistan post-Taliban. They invested generously in female empowerment, gender balance, women’s rights, and similar initiatives. They withheld money from ministries that did not employ enough women and would allow construction companies to bid on projects only if they promised to make as much as half of their workforce female. The United States Agency for International Development (USAID) alone spent more than hal
f a billion dollars on women’s programs in Afghanistan from 2002 through 2010, according to Nadia Shaherzad, the USAID gender-equality officer, interviewed in 2010. That did not count $4 billion spent by USAID on building girls’ or mixed-sex schools.31 The European Commission, European countries individually, and the World Bank all sank hundreds of millions more into supporting civil society, particularly female civil society. This all spawned a host of Afghan women’s groups that had never existed before but now could spring to life and find generous funding overnight.

  The EVAW law was the preeminent success story of those efforts, but, paradoxically, for many women the law may have made life worse. Crimes defined as violence against women nearly doubled between 2009 and 2013, in nearly every category, including honor killings, rapes, spousal abuse, and child marriages; there was another dramatic increase in 2014 over 2013.32 Partly that has been because women are emboldened to report abuses they previously would have suffered in silence. Something else is going on as well, though, says Soraya Sobhrang, head of women’s issues for the Afghanistan Independent Human Rights Commission. “It’s just a male-dominated society, and now women are finding a voice and getting an awareness that they have some rights, and men feel threatened and react against that,” she said. Ms. Sobhrang also blames the increased violence against women on a widespread “culture of impunity,” along with insecurity and continued dominance by warlords in many rural areas. Of the six thousand EVAW cases reported in the Persian year 1392 (from March 2013 to March 2014), according to data collected by the Ministry of Women’s Affairs,33 fewer than 10 percent of them resulted in prosecutions; fewer than half of those prosecutions resulted in convictions.34 The human-rights commission, which also tracks violence against women, logged more than four thousand such cases in the first six months of 2014, a 25-percent increase over the previous year.35

  No one thinks that anything more than a tiny percentage of cases of gender abuse ever get reported. Even those cases that have come into public view and received heavy press coverage sometimes remain unhappily resolved, such as the case of Gulnaz, the girl whose documentary was suppressed by European Union bureaucrats and who ended up marrying her rapist after the klieg lights went off.36 The solution for her, and her supporters in women’s groups who caved in on her case, was to simply rewrite her tragic history, remove the rape from it, and then take some sort of solace in the knowledge that her rapist-husband has so far not beaten her or their child.

  Another major advance embodied in the EVAW law was to decriminalize the social conduct of women, but the law’s provisions for that are widely ignored. By the lowest estimates, more than half the female prisoners in the country’s main prison for women, Badam Bagh, in Kabul, are held for social or moral crimes, including significant percentages for nothing more than running away or “attempted zina”—that is, attempted adultery.37 Women are routinely arrested for running away, for going out alone, for being in the company of an unrelated male.

  “I am fifty-seven years old, and I cannot live alone in this society,” Ms. Sobhrang said. No woman can. Hardly any single women live alone; a woman is either married or living in her father’s or brother’s house; there is no other alternative, even in the relative anonymity of a city as big as Kabul, which now has 5 million or more residents. The only exception is widows who do not have brothers or brothers-in-law to take them in. “Only two percent of Afghan women are independent economically. Women need a place where they can stand together so they can do things for themselves. Now women have new hopes and dreams, and they need to be reassured that there’s no barrier between their wishes and their achievements,” Ms. Sobhrang said.

  Women in Afghanistan cannot legally travel on their own but must be accompanied by a mahram, and in practice they neither own nor inherit property. Their husbands can divorce them with the customary Islamic declaration, “I divorce you,” repeated three times, but a wife has little more than a theoretical right of divorce from her husband—one that is implemented only with great difficulty. If her husband leaves her, she has no rights to their home and he can demand the right to take the children, leaving her with neither housing nor family. If a woman’s husband dies, she and her children can be taken in by the husband’s family—if they agree—but in many cases the price of agreement will be that she is obliged to marry a brother of her late husband. Often that means becoming a second or third wife of that brother.

  In rural areas and sometimes even in towns, a woman found alone outside her home often will be assumed to be committing or trying to commit zina and, if she cannot prove otherwise, jailed for attempted adultery or, if not a virgin, adultery. Unmarried women found alone by the police are commonly subjected to a forensic virginity test, at the office of the provincial medical examiner, though there is no requirement in the law for a single woman to prove her virginity on demand of the authorities. “I’ve seen cases where it has been done to girls as young as seven and women as old as seventy,” said Wazhma Frogh, who is the executive director of the Research Institute for Women, Peace & Security.38 “Since these cases usually come up in the middle of the night, there is hardly ever a female doctor on duty—there are so few female doctors anyway—so it is a man who does the test, and it is very intrusive.”

  It is a sad commentary on how bad things are for women that Rubina Hamdard, a lawyer for the well-respected Afghan Women’s Network,39 says the practice of virginity testing is in the best interests of a woman who encounters male authority. “Even if the girl who is found alone is eighteen or forty, there is no question of consent or whatever. Police would just say, ‘This is not the West or America’ [and force her to undergo the virginity test]. But it’s a good idea, because if she’s arrested, then police officials could commit adultery with her and claim the sex happened before.” In other words, an invasive virginity test is justified because it might protect them from a rape at the station house, which happens so commonly that even many of Afghanistan’s policewomen have been victimized sexually by their male colleagues. A recent United Nations survey, suppressed by the United Nations Assistance Mission in Afghanistan (UNAMA), showed that 70 percent of Afghan women police have reported sexual abuse on the job.40

  Without the EVAW law, many of the other victimized Afghan women whose travails have been so well documented in recent years would have had little or no recourse, even if their cases had come to light. Lal Bibi, for instance, would have remained forcibly married to her rapist—if he even bothered with the formality of marriage, which he had really only used as a dodge to avoid a rape charge.41 Breshna, a ten-year-old girl from Kunduz Province, raped by a mullah in her mosque, faced an honor killing by her family and even the prospect of being forced to marry the mullah who’d raped her. Women’s advocates invoking the EVAW law pushed for a successful prosecution of the mullah and protected the girl (although Breshna remains at risk; her case is discussed in detail beginning on page 287). Soheila from Nuristan42 would still be languishing in prison, as would Niaz Mohammad, her husband, for the crime of love and the temerity to run away from an arranged marriage with a pedophile—a marriage that would itself be a serious felony in most countries. It is hard to know where Bibi Aisha would have ended up if WAW had not taken her into its shelter in Kabul, but it is doubtful she would ever have had her amputated nose reconstructed. If it were not for EVAW, there probably would not have been shelters, for starters, and the women’s shelters could not have taken on the advocacy role they have so often fulfilled.43 Most of the women and girls they shelter are being rescued from EVAW-law offenses—crimes that had not been crimes before EVAW, such as child marriage—under protections that had not previously existed.

  And of course there would have been no story of Zakia and Ali without the EVAW law. Shelters saved Zakia’s life twice. The EVAW law was cited as the justification for getting Ali out of jail, whatever President Karzai did behind the scenes. The threat of EVAW-based prosecution, as well as the intense public scrutiny, no doubt protected Zakia an
d Ali from her family’s retribution for as long as that attention has lasted.

  Because of the EVAW law’s signal importance, the international community made it one of the Tokyo Framework’s benchmarks, named for agreements made in Tokyo in 2012 establishing that future development aid for Afghanistan would be contingent on progress in areas the donors felt were important. Under the Tokyo Framework,44 the EVAW law’s implementation was a benchmark to be considered a “hard deliverable” in international parlance, something concrete and quantifiable that had to be achieved if aid were to continue. The United Nations has been charged with issuing an annual report on EVAW-law enforcement and the condition of women in the country as part of that process.45 The Ministry of Women’s Affairs does the same, with an annual report,46 although it has strived to underplay the problem; the minister from 2006 until 2014, Husn Banu Ghazanfar, was never known as a champion of her gender. Violence against women? It happens in every country, is Ms. Ghazanfar’s explanation; there’s nothing unusual about Afghanistan.

  In fact, in few other countries is violence against women so officially, culturally, legally, and traditionally tolerated. “Afghanistan is the worst place in the world to be a woman,” says Ms. Jalal,47 the abused former women’s minister. “The most dangerous place in the world to live for women.” Women in Afghanistan are worse off by most measures than in all but a handful of countries in the world, and those are places like Chad, Malawi, and Djibouti, places that have little Western involvement and nothing like the massive financial aid Afghanistan has enjoyed since 2002. Even women in Saudi Arabia, by the United Nations Development Program’s gender-inequality index,48 are far better off than those in Afghanistan. Saudi women are not allowed by law to drive cars; Afghan women are, but few dare to do so.