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February 04, 2022 Feature

Women Judges Mobilize to Help Endangered Afghan Counterparts

By Cynthia L. Cooper

On August 14, 2021, recently retired Judge Patricia Whalen was on a Zoom call from her home in Vermont with her friend Judge Anisa Rasooli, in Afghanistan. The two women have known each other since 2003, when Whalen organized the Vermont Afghan Women Judges Judicial Education Program, bringing Afghan women judges to her state for cultural exchange and judicial training. Rasooli was the first judge to participate in the program, and nearly three dozen women followed in the next decade.

At the time of the Zoom call, there were about 250 women judges in Afghanistan, amounting to 10 percent of the judiciary. They served in courts that ruled on crime, corruption, terrorism, domestic violence, drugs, and more, often sentencing men to prison for their criminal transgressions.

Judge Rasooli is a widely respected and long-standing jurist who is often described as the “RBG of Afghanistan.” She has served on all of the major courts in Afghanistan, was the first woman nominated to the Afghan Supreme Council, and served as the head of the Afghan Women Judges Association. Earlier in 2021, she was a speaker for the International Association of Women Judges (IAWJ), which had been a sponsor of the Afghan women’s exchange and training program.

Now Rasooli told Whalen: “You know, it’s over.” She described that the Taliban were about to overtake Kabul in the face of the U.S. military withdrawal from the country. The consequences for women judges would be catastrophic.

“It was probably the hardest conversation I’ve ever had with anybody,” says Whalen, who served as a judge in Vermont and also on an international war crimes tribunal for Bosnia and Herzegovina. When Whalen retired, she had decided to write a book about her experiences. Those plans were soon pushed aside.

If the Afghan women judges were expecting the worst, it was not without reason. When in power previously, the Taliban enforced their extreme fundamentalist views by removing women from all public life; women serving as judges over men was unthinkable. The Taliban enforced their edicts with brutal treatment and violence. Already, thousands of Taliban prisoners, many sentenced by women judges, had been released from confinement in 2020 as part of the Western military drawdown, and in January 2021, two high-level Afghan women judges were gunned down on their way to work by unknown assailants on a motorcycle. Many saw it as a forewarning.

On the morning after the conversation with Judge Rasooli, Whalen and her IAWJ colleagues saw, like the rest of the world, that the Taliban takeover of Afghanistan’s capital had begun. The Afghan women judges immediately lost their jobs. In an unprecedented move, the prisons were thrown open and tens of thousands of convicts, sentenced for every type of criminal activity, were released. The names and addresses of the judges were also unsealed.

“We just went to work,” Whalen says. “We knew these women. We were their lifeline to the outside world. They were our membership, and we had to start. It was like jumping into the deep end of a pool and not knowing how to swim.

“Honestly, we had no idea what we were doing,” she continues. “We’re judges. We’re not spies or diplomats. We’re not military people. And immediately we were being barraged by messages from the (Afghan women) judges.”

A half-dozen international women judges formed a core team. Judge Vanessa Ruiz, senior judge of the District of Columbia Court of Appeals and immediate past president of the IAWJ, became a critical leading partner with Whalen in a round-the-clock operation that hasn’t stopped.

Launching Rescue Efforts

Right away, the IAWJ judges opened a 24-hour hotline with two translators. Reports from the Afghan women judges increased as desperation and fear grew. They not only lost their employment, but their bank accounts were frozen. The judges and their families were receiving threatening messages. The women burned their law books and diplomas and soon went into hiding, sometimes moving from basement to basement to avoid detection.

“There’s never been a clearer or more compelling case for assisting judges, prosecutors, and lawyers in other countries, and these women are literally our sisters-in-law, on the court, and they needed assistance, and they needed it more than ever,” says Judge Delissa Ridgway, senior judge on the U.S. Court of International Trade and part of the National Association of Women Judges.

The international cohort of women judges created a database to collect and organize the visa and personal documents for the Afghan women. With fierce urgency, they began to call, email, and text U.S. government officials, members of Congress, people in the State Department, and others around the world.

“We called all of the people that we could think of,” Whalen says, “and then we realized we weren’t going to get help from the government. The realization came that if the women judges were going to get out, we would have to help them.”

The government evacuation efforts, it turns out, were focused on military personnel, U.S. citizens and residents, and previously identified helpers, such as interpreters, whose visas marked them for special immigrant visa status. The women judges, who were building the rule of law inside Afghanistan, fell outside those parameters.

Expanding to Evacuation

Seeing the extreme danger and the lack of government assistance, the IAWJ judges adopted new tactics. They began to look at what they could do to evacuate the Afghan judges to safe havens.

“If you are the only hope, then you just have to step up to the mark,” says Justice Susan Glazebrook, who sits on the Supreme Court of New Zealand and is president of the IAWJ. “We’re a small group. We all felt that this is something that we absolutely had to do.

“There was a moment where you could say, ‘We don’t have the expertise. We can’t do this,’” she continues. “We probably should have said that, actually. We naively promised everybody in Afghanistan, all of our women judges, that we would forget nobody and leave no one behind. We were determined to do what we could.”

The IAWJ quickly encountered more complications. Evacuating the women judges, many of whom have young children, meant bringing families who were also in danger. Not all had proper visas or identification papers. A raft of other issues surfaced: flight arrangements, transportation and entry to the airport, landing rights, and agreements with countries to accept the Afghan women judges either temporarily or permanently.

By the end of August, 20 women judges were able to depart. Some, including Judge Rasooli, were evacuated to temporary refuge in Poland with the help of a Polish woman lawyer and assistance from the country’s special forces. To reach the airport, judges had to slog through a sewer-filled trough with inked markings on their hands to identify them to the Polish military.

“The pictures of the women holding their children in the sewer captures the desperation to get out. I’m not faint of heart, but that’s right up there,” says Col. Linda Strite Murnane, a U.S. Air Force veteran and former military judge with international experience who became the logistics expert.

Getting the remaining women judges out depended on private contractors after the complete departure of the U.S. military on August 30. “They (the IAWJ team) would call me and say, ‘I’ve got the name of so and so and they say they can provide transportation to the airport.’ If they are not the U.S. military, but actors who remained in the state, you have to verify that they are not mercenaries,” says Murnane, who undertook the vetting process.

The private evacuations are expensive. Each chartered airplane, holding about 397 passengers, costs $800,000 to $1 million, says Baroness Helena Kennedy, a member of the U.K. House of Lords who, in her role as director of the London-based International Bar Association Human Rights Institute, arranged two planes for Afghan women judges and their families and half the seats of another plane. The flights went to intermediate sites—known as “lily pads”—and Greece, where the woman president is a former judge, which became temporary safe havens for many.

“It is very disappointing that the international community of states, of government, has not stepped forward with much more willingness and much more speed,” Kennedy says. “These women were lawyering in a difficult environment and upholding the rule of law, and we encouraged that. We owe it to these women. They have fallen through the slats. This is a Schindler’s List moment.”

Whalen says that by mid-December, 96 women judges and approximately 727 family members were still awaiting evacuation, noting that further flights seemed to be stalled.

But evacuation was not the end either. Knotty situations continued to arise for the 152 women judges and 558 family members who had been evacuated. They are in 17 countries—Albania, Belgium, Brazil, England, Germany, Greece, Ireland, Korea, New Zealand, Pakistan, Poland, Romania, Spain, Tajikistan, Turkey, United Arab Emirates, and the United States—but only a handful have been resettled in final destination countries. The Afghan judges are living in limbo, surviving with the aid of international donors who agreed to pay for their food, housing, and basic sustenance.

Searching for Permanent Resettlement

Getting the Afghan judges to countries where they can resettle and rebuild their lives posed yet another set of obstacles for the IAWJ members. Entry visas were difficult to secure.

At the request of the IAWJ, the global firm DLA Piper agreed to represent some Afghan women judges around the world in the emigration process. Fifty DLA Piper lawyers immediately signed up to help, but their efforts have been stymied by a lack of “pathways” for the women, says Anne Geraghty Helms, the firm’s director and counsel for U.S. pro bono programs.

At first, the lawyers hoped to secure “humanitarian parole,” but that turned out to be a dead end. “It shines a spotlight on the problem in our global migration system,” Helms notes. “It’s a heartbreaking situation.”

Judge Rasooli, speaking from Poland, where she was evacuated, is concerned for her colleagues. “The women judges are worried about their future, and their planning for the future of their children,” she says. “Right now, they feel that they are future-less.

“You know how hard it is to become a judge just to begin with,” Rasooli continues. “And the judges have lost everything. Their hope is that they could get to countries that are safe and run by democratic values and that they can be supported there.”

Rasooli notes that Afghani women prosecutors and lawyers are also endangered.

For her part, Judge Rasooli has been offered a one-year scholar-in-residence position at Yale Law School.

Offers of employment or sponsorship with housing and living expenses may be the key to helping the Afghan women judges resettle in the United States, says Tim Rieser, senior foreign policy aide to Senator Patrick Leahy (D-VT). Leahy worked to include funding to evacuate and support Afghan refugees in the most recent government funding legislation, and his office is working directly on the resettlement of at least two Afghan women judges and their families, as well as other Afghans at risk.

“The Afghan women judges are very accomplished jurists and very vulnerable,” Rieser says. In general, though, the sudden departure and relocation of tens of thousands of Afghans have overwhelmed the immigration system and created a backlog that has prevented faster processing of the women judges and left many Afghans in grave peril.

Legal organizations are speaking out to raise attention to the plight of the women judges. The American Bar Association (ABA) opened the Afghanistan Response Project, and ABA President Reginald M. Turner Jr. wrote to U.S. Secretary of State Antony Blinken seeking support for the evacuation of judges and lawyers, especially women. The International Association of Judges, the National Association of Women Judges, the Irish Bar Association, the New York State Bar Association, and other law groups issued statements, as did Nada Al-Nashif, deputy high commissioner for human rights for the United Nations, who called the safety of the women jurists a matter for “particular alarm.”

What’s more, Col. Murnane and Chicago lawyer Wendy M. Taube produced a webinar for the International Human Rights Committee of the ABA International Law Section, concluding with a 12-point action list that ranges from sponsorship to donations. The international women judges opened a donation fund (https://charidy.com/AfghanWomen), seeking to raise $5 million for the women judges.

The Center for International Human Rights at Northwestern Pritzker School of Law in Chicago announced that it is presenting the Global Jurist of the Year Award to all Afghan women judges, says Northwestern clinical law professor Juliet Sorensen. The award honors judges who have faced adversity in pursuit of the rule of law, and the nomination was made by Sara Elizabeth Dill, an international human rights lawyer who works in the Middle East and Arabian Gulf. “They were really trailblazers in their country,” Dill says. “I thought this would be a good way to mobilize the legal community to find positions for them.”

Judge Rasooli will accept the award on behalf of all the judges.

Long Road Ahead

As the crisis facing the Afghan women judges extends to a new year, Judge Vanessa Ruiz sees no end in sight. “You feel powerless to help, despite the fact that you are at it all the time,” she says.

Ruiz celebrates their victories—some Afghan women judges and their families were accepted in Ireland; five women judges were resettled in the United States. But then the to-do lists are unrelenting—contacting the White House, the State Department, the Department of Homeland Security, members of Congress, law schools, and other organizations in this country and across the world—seeking any break to the untenable impasse. By the start of 2022, a spokesperson for Canada’s immigration authority indicated that the country would accept in the next year a large group of Afghan women judges and families now living in limbo in Greece.

“We are all exhausted,” Ruiz says. “You feel their trauma. We are all experiencing secondary trauma. But we made a commitment that we would be their voice and we would not abandon them. So we are going to keep pushing and keep trying to look for opportunities for them.”

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By Cynthia L. Cooper

Cynthia L. Cooper is an independent journalist in New York with a background as a lawyer.