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Melanie M. Brookes
excerpted Wrom: CUFPEGAUTFJMVRESKPNKMBIPBARHDMNN
Rights in Afghanistan: Considerations of Abortion Regulation in Light of
the Afghan Reconstruction Process, 18 Connecticut Journal of
International Law 595 - 619, 595-597 (Spring, 2003) (108 Footnotes
Omitted)
After nearly thirty years of warfare and political strife in
Afghanistan, the international community, in large part motivated by
Washington's sudden call to action in the wake of September 11, 2001,
finally took an interest in lending the beleaguered country the military
aid needed to expel the Taliban regime and take steps toward stability.
Pursuant to the expulsion of the Taliban and the convening of the United
Nations Talks on Afghanistan, provisional arrangements for the
struggling nation were unveiled after nine days of debate by a council
of Afghan leaders in Bonn. The resulting agreement established a plan to
create a new Afghan government by means of a series of stages that would
commence with an interim authority to take power that month, and would
eventually form a transitional authority to rule until a new Afghan
constitution could be laid out and elections could take place. The
current legal system, to be adhered to in accordance with the Bonn
Agreement until completion of the new constitution, relies upon
Afghanistan's Constitution of 1964 and "existing laws and
regulations" for guidance, to be interpreted by a Supreme Court of
Afghanistan and other unspecified Afghan courts.
Diversity is a running theme in the Bonn Agreement. Religious and
secular interests, the rights of women, respect and recognition of old
local custom, international guidance, and many other factors were
envisioned during the UN Talks, and will hopefully continue to influence
the new Afghanistan. The Afghan justice system will be built with
respect to "Islamic principles, international standards, the rule
of law and Afghan legal traditions." The question is how this will
be accomplished.
While the above topics are relevant in the context of rebuilding
Afghanistan generally, this Comment focuses specifically on abortion
regulation. Women played an enormous role in arousing international
sympathy for the plight of Afghanistan, as evidenced by feminists, human
rights organizations, and academics who decried "gender
apartheid" throughout the Taliban's control of the country in the
1990s, long before most Americans began speaking passionately of what
they could do for Afghan women as Washington began devising a military
strategy to uproot the fundamentalist regime. Arguably, no other force
in modern history has practiced such severe cruelty in its segregation
of women from all aspects of the public realm. Accordingly, the
transitional authority seeks to include women in the reconstruction
effort, and will hopefully implement improved freedoms and protections
for women in all areas of society.
The need for improved reproductive health care is only one part of
the grim specter of failing women's health that has prompted
humanitarian organizations and international physicians' organizations
to take action in the devastated country. From a legal standpoint, the
regulation of abortion by the new government, be it a centralized
authority in Kabul or one of several local bodies already existing or
yet to be created, will play an important role in defining women's
freedoms and status in the new Afghanistan. Though many other concerns
may seem more important to address than reproductive rights in the short
run (such as providing emergency aid, building schools, and organizing
free and fair elections), women's reproductive health and freedom to
choose whether to terminate their pregnancies must be a major concern of
the current authority's focus on women, if they are to be fully
reintegrated into Afghan society and if the country as a whole is to
immunize itself from future tendencies to fall victim to terrorism and
fundamentalist control.
Resolving the issue of abortion in the context of rebuilding
Afghanistan involves an in-depth examination of current medical practice
and the construction of a stable hospital and health care system,
including such objectives as locating and training medical practitioners
and obtaining needed supplies. This Comment discusses abortion solely as
a legal matter for the purpose of focusing on the first step in the
political process of protecting Afghan women's reproductive freedoms. As
emergency health care operations subside and a new system is implemented
for Afghanistan's population, the law will be looked to as a guideline
for this process. But the legality of abortion and its regulation by the
government are likely to pose a more unique challenge to the shapers of
the new Afghan health care system, in light of Afghanistan's particular
gender relations, traditional treatment of abortion from a religious and
cultural standpoint, and diversity of viewpoints further fractured by a
largely decentralized governmental system. For all the reasons indicated
by the nature of the subject and its treatment in recent history,
abortion is a controversial and heavily regulated procedure in societies
where many other more dangerous and costly medical procedures are
carried out daily without undue interference from legislative and
judicial bodies. In a country such as Afghanistan, where much is
uncertain and crisis is a daily observance, legal access to abortion is
a necessary element of an overall guarantee of women's rights and
autonomy, which in turn will aid the eventual development of a viable
Afghan state that respects the varied needs and values of its people
along with international human rights standards.
This Comment examines existing Afghan law and tradition to predict
the issues pertaining to reproductive rights that will necessarily arise
in the process of lawmaking and institution building. Specifically,
abortion is regarded as part of an overall human rights context to
demonstrate its significance as an issue for both Afghan women and
society as a whole. Part I focuses on the results of the Bonn Agreement
and the structure, functions, and responsibilities of the transitional
authority. In Part II, the Afghan Constitution of 1964 is analyzed to
provide a framework for how the transitional authority will address
legal issues that may arise in the courtroom concerning abortion, such
as the scope of individual rights and the appropriateness of regulation
by the state. This constitution is also discussed as a possible model
for the new Afghan constitution, and its potential effect on the authors
of the new constitution is considered. Part III discusses two schools of
thought on abortion that will likely be considered as "existing
laws and regulations" in terms of the Bonn Agreement: Afghanistan's
Penal Code of 1976, and the Hanafi school of the sharia (Islamic law).
In Part IV, these topics are further analyzed in terms of how the
transitional and permanent authority may interpret Afghan abortion law.
Part V ties together the above ideas, and discusses the possible
attempts to reconcile local rule with national lawmaking in terms of the
efforts to create a stable civil society out of what remains of the
war-ravaged and fragmented Afghan population. This section concludes
with an argument that abortion is an important legal right that should
be treated as part of an overall concern for human rights, specifically
the rights of women, by the framers of the new Afghan government. This
is necessary not only for the benefit of Afghan women, who have suffered
unique and tragic hardships during the many years of war and poverty,
but for their families and society as a whole. This human rights context
is essential if Afghanistan is to centralize its authority, become
economically and politically stable, and insulate itself and the global
community from future disaster.
[a1]. J.D., University of Connecticut School of Law, expected 2004;
B.A., Bard College, 2001. |
