Editor's note: Dr Rishi Gulati is Associate Professor in International Law at the University of East Anglia (UK) and Barrister in Law. He has a PhD from King’s College London, Advanced Masters in Public International Law from Leiden University, and a Bachelor of Laws from the Australian National University. Amongst other publications, he is the author of Access to Justice and International Organisations (Cambridge University Press, 2022). He has previously worked for the Australian Government, has consulted for various international organizations, and regularly appears as counsel in transnational cases.

On 1 December 2024, Jay Shah, the son of India’s powerful Home Minister and Modi confidante Amit Shah, will take over the role of the Independent Chair of the International Cricket Council (ICC). This appointment reflects the influence India now has on the governance of cricket globally. A key test Jay Shah will face is whether or not the ICC should suspend the Afghanistan Cricket Board (ACB) from its membership as Afghanistan no longer maintains a women’s cricket team contrary to the organization’s own rules, as well as its human rights responsibilities. 

The Post-Taliban Situation for Women’s Cricket in Afghanistan

As is well known, following the highly chaotic US withdrawal from Afghanistan in 2021, the Taliban returned to power in that country. Since its return, the Taliban has banned education for young women and teenage girls, severely restricted their right to work, outlawed women’s voices being raised in public, issuing at least 100 decrees and edicts institutionally and systematically violating Afghan women and girls’ basic freedoms recognised in international law. 

In June 2024, the UN Special Rapporteur on human rights in Afghanistan said that “[t]he system of discrimination, segregation, disrespect for human dignity and exclusion institutionalized by the Taliban is motivated by and results in a profound rejection of the full humanity of women and girls.” It should then come as no surprise that women in Afghanistan are not allowed to play domestic cricket in that country any more. Further, the Afghanistan women’s cricket team no longer plays international cricket for the Taliban does not allow it. All the gains made in the pre-Taliban period, where the sport in that country had made genuine advances, were lost in a moment.

The ICC’s obligations to Afghanistan Women’s Cricket

As a global body that regulates international cricket, the ICC rightly enjoys independence in its working. However, this independence does not mean that the ICC should be unaccountable and be able to evade or avoid its human rights responsibilities. In respect of its obligations to Afghanistan’s women cricket, it cannot be said that the ICC is living up to those responsibilities.

Indeed, global sporting bodies are powerful transnational institutions to whom the most basic human rights obligations ought to apply. Amongst other things, the UN Guiding Principles on Business and Human Rights (UNGPs) which some sports bodies have voluntarily adopted require them to ensure compliance with internationally recognised human rights standards, including on non-discrimination, and the need to provide an effective remedy to those adversely affected (see especially Principles 11-29 of the UNGPs).

Although the words “human rights” do not appear in its Articles of Association (the ICC is incorporated as a company limited by guarantee in the British Virgin Islands), the organization’s own rules do indeed facilitate non-discriminatory participation of women in the sport, albeit in a roundabout way. 

ICC members, which the ACB is, must be run independently, i.e., without government interference (para. 2.4, ICC Articles). If there is governmental interference, then the member cannot maintain its membership (para. 2.8, ICC Articles). Specifically on women’s participation in the sport, where pathways for women’s cricket are lacking, and a member does not maintain a women’s cricket team, its membership ought to be suspended for this would appear to constitute a serious breach of its obligations as a Member (para. 2.10, ICC Articles; also see the ICC membership criteria).

Due to the Taliban’s ban on women’s sport, interference in the ACB’s affairs is manifest. Crucially, there are no pathways for girls and women to play cricket in Afghanistan, with that country failing to maintain a women’s cricket team. There is a clear basis for suspending the Afghanistan Cricket Board (ACB) from its membership. As Goldschmidt has explained, “Afghanistan, on even the loosest assessment, is not meeting the requirements prescribed by the ICC’s governance arrangements. 

While it would be preferrable if the ICC were to expressly adopt human rights principles in its governance arrangements, in the case at hand, its current framework already allows it to live-up to the organization’s human rights responsibilities through a straightforward application of its rules. Afterall, South Africa was suspended from international cricket between 1970 and 1991 during the Apartheid regime in that country. But why is this double standard allowed to continue? 

How the ICC may respond to the conundrum?

It has been said, “the ICC has been keen to stress that it does not recognise the Taliban as the legitimate ruling authority, and hence will “not penalise the ACB, or its players, for abiding by the laws set by the government of their country.” It is perhaps understandable that the ICC wishes to ensure that Afghan men can continue to play international cricket, thus, expelling the ACB is a difficult proposition.

However, until women’s cricket is restored in Afghanistan, suspending the ACB from the ICC would be an apt action that is not only in line with its own rules, but entirely consistent with the organization’s human rights responsibilities. If taking a strong stance against what some call gender apartheid against girls and women in Afghanistan means that the men’s cricket team may not be able to participate in international cricket, then this is a price that must be paid. As unfortunate as this state of affairs may be, it does not constitute an exception to the ICC’s human rights responsibilities.

-This does not mean that Afghan men’s and women’s cricket teams cannot take part in cricket at all. Most women cricketers from that country fled to western states following the Taliban take-over. Representatives from the former Afghanistan women’s cricket team presently based in Australia requested the ICC for permission to play as an Afghan refugee team, stating: : “Creating a team of Afghan refugees can give us a chance to play, coach and administer a cricket team without borders…The creation of this team will allow all Afghan women who want to represent their country to come together under one banner.” 

An appropriate response would be to allow the establishment of a women’s refugee cricket team. There is nothing stopping the ICC to allow the men to do the same should the ACB be suspended. 

Doing so does not only help the ICC to abide by its human rights responsibilities, but also assists the organization to mitigate any potential issues arising with respect to cricket’s participation in the 2028 LA Olympics at which cricket will make a much awaited return. Indeed, the ICC is a member of the Olympic Movement, and given the International Olympic Committee’s increased emphasis on human rights considerations throughout its operations, the need for the ICC to live up to its human rights responsibilities is correspondingly pressing.