Australia faces mounting calls to initiate a landmark human rights case against the Taliban at the International Court of Justice (ICJ) amid plans by the Albanese government to close the Afghan embassy in Canberra later this month. Legal experts warn that shuttering the embassy could provide the Taliban with a significant propaganda advantage.

For the past two years, Australia and several other countries have sought to hold the Taliban accountable for violations of women’s rights under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). However, efforts to advance the case appear to have stalled during the mandatory negotiation phase required under the convention.

International human rights lawyer Binaifer Nowrojee emphasized Australia’s potential leadership role in this unprecedented legal action. She noted that Australia has standing before the court and has previously committed to protecting the rights of Afghan women and girls. According to Nowrojee, progress requires Australia to invoke Article 29 of CEDAW to formally bring a complaint, engage in arbitration, and if necessary, proceed with a contentious case against the Taliban.

The government, however, maintains that it remains engaged in the required negotiation process and has cautioned against prematurely escalating the matter, arguing that bypassing this step could undermine the legal basis for the case.

Adding complexity to the situation is Australia’s longstanding policy of recognizing states rather than governments, dating back to 1988. William Maley, an emeritus professor of diplomacy at the Australian National University, highlighted the inherent dilemma this policy creates. While the Afghan embassy in Canberra represents the state of Afghanistan, it is not connected to the Taliban, the group responsible for systematic repression of women under the current regime.

“Pursuing the pathway outlined in CEDAW would entail some level of recognition of the Taliban, which the Australian government has consistently refused to grant,” Maley said. He further explained that Australia’s stance has been to withhold recognition of the Taliban and its diplomats, complicating any potential legal strategy aimed at holding the group accountable through international judicial mechanisms.

The government’s predicament gained further attention after the Afghan community in Australia criticized the decision to close the embassy, with some interpreting it as undermining support for Afghan Australians and women’s rights advocates. A joint statement issued on January 30 by the embassy and the Department of Foreign Affairs and Trade (DFAT) confirmed that embassy operations would be suspended “due to prevailing circumstances.”

Maley argued that closing the embassy could be perceived by the Taliban as a major win, effectively silencing a key platform advocating for Afghan women in Australia. In response, a spokesperson for Foreign Minister Penny Wong reiterated the government’s commitment to supporting the Afghan community despite the closure.

As Australia navigates the complexities of international law, diplomatic recognition, and human rights advocacy, the outcome of this case may signal new precedents for how states hold non-state actors accountable for violations of international conventions.