Gender Persecution and Gender Apartheid in Afghanistan: Seeking the Appropriate Legal Basis for International Accountability

Written by

From as early as 1980, Afghanistan signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), a decisive step in protecting women’s rights to equality, notably in education. Additionally, since 1994, Afghanistan has been a signatory to the International Covenant on Civil and Political Rights (ICCPR), which explicitly includes rights such as education, privacy, and the right to life. Notably, Afghanistan is also a party to the Universal Declaration on Human Rights (UDHR).

After the withdrawal of American troops from Afghanistan in August 2021, the Taliban launched their offensive, marking their return to power after being ousted in 2001. In August 2021, they seized control of the capital, leading to the collapse of  the government

Since the Taliban takeover, the situation for women has rapidly deteriorated, with ongoing escalations. In August 2021, women were instructed to remain at home. By September 2021, they were prohibited from pursuing secondary education. These restrictions on education increased in October 2021 to prohibit women from studying specific subjects deemed “too challenging for women”. By December 2022, women were barred from accessing higher education and prohibited from working with NGOs. Subsequently, they have been restricted from, inter alia, accessing healthcare without a male guardian, obtaining driving licences, using public transportation unaccompanied by a male, and accessing parks and various public facilities.

The dire circumstances faced by women in Afghanistan raise an important question: how can we ensure accountability for the de facto Taliban regime and deliver justice? This question is not as straightforward as it may seem, partially due to the (absolutely justified and encouraged) absence of international recognition of the Taliban de facto regime.

The objective of this article is to focus on the appropriate pathways for accountability, specifically discussing the legal foundations for seeking international accountability. I will focus on two main possibilities: first, the individual criminal responsibility of Taliban members for their commission of international crimes against humanity targeting women, drawing upon the framework of international criminal law, the Rome Statute, and the jurisdiction of the International Criminal Court; second, the international responsibility of States that support and enable the Taliban de facto regime in their persecution of women, as addressed by the Ljubljana Convention and the regime of the International Court of Justice.

Legal Avenues for Accountability: Gender Persecution and “Gender Apartheid”<

 

The Rome Statute of the International Criminal Court (ICC) and the Ljubljana Convention on the investigation and prosecution of international crimes both include gender-based offences, particularly within the definition of crimes against humanity (CAH). Notably, CAH includes the offence of gender persecution (GP), which is defined as the severe deprivation of women’s fundamental rights based on their gender.

Hence, the severe deprivation of women’s fundamental rights can serve as a legal basis for pursuing the individual criminal responsibility of Taliban members who commit this crime, whether through direct or indirect involvement. Additionally, any State that aids the Taliban’s de facto regime in perpetrating gender persecution may be held internationally accountable for failing in its obligations to prevent CAHs as outlined in the Ljubljana Convention – provided that this State ratifies the new convention

However, part of the public discourse surrounding the plight of women in Afghanistan does not   centre around the concept of GP, but instead focuses on a relatively new expression: “gender apartheid” (GA). The concept of GA was popularised by Dr. Karima Bennoune within the context of Afghanistan, and it has since been adopted by numerous governmental and non-governmental organisations.

As of today, GA lacks a legal basis. While the Rome Statute and the Ljubljana Convention both address the CAH of apartheid, their definitions do not currently incorporate gender. However, despite this notable limitation, Dr. Karima Bennoune and other scholars advocate for efforts to be made towards the inclusion of GA within international conventions, aiming to pursue accountability for the actions of the Taliban. While I fully support the collective sentiment amongst part of scholarship regarding the need to unequivocally condemn and punish the Taliban de facto regime, I find myself questioning whether this call would be more efficient if grounded in relevant legal frameworks.

The first and most apparent reason for incorporating GA into international conventions lies in the historical significance of the term “apartheid”. The concept of apartheid carries inherent weight, akin to “genocide”, possessing the potential to convey the severity and magnitude of a situation swiftly and effectively. Therefore, it is well-equipped to influence public perception and galvanise civil society into action. In this regard, I endorse the GA campaign.

However, regarding the legal campaign, I must express some reservations. Firstly, one of the arguments supporting the concept of GA is the idea of an “accountability vacuum” for gender-based crimes that GA aims to address. It is true that gender-based crimes have frequently been overlooked in the realm of international law, earning them the label of the “forgotten international crimes”. The absence of gender-based crimes in the list of protected groups under genocide and the historical legacy of the Tokyo Trial’s treatment of comfort women highlight the inadequate accountability for gender-based crimes. Yet, this perceived “accountability vacuum” is more of an issue related to implementation rather than the availability of legal provisions. Therefore, the inclusion of GA would not necessarily address this issue, as the challenge lies in effectively implementing existing legal frameworks rather than in the creation of new ones. Moreover, recent cases emerging at the ICC indicate that steps are being taken to address this accountability gap, as evidenced by the commencement of the first international criminal trial featuring, amongst other charges, gender persecution.

Secondly, it has been frequently claimed that GA would acknowledge the “institutionalised” and “widespread” nature of gender-based atrocities in Afghanistan, implying a different level of severity compared to other crimes. However, apartheid is classified as a CAH just like GP. Additionally, the chapeau criteria of CAH already include the requirement that CAHs must be systematic (i.e., institutionalised) or widespread, thus already encapsulating this idea.

Finally, criminalising GA is often advocated for because it would imply a “special animus and intent”, purportedly distinguishing it from GP. However, I am inclined to disagree with this perspective. The specific animus and intent associated with apartheid involve the perpetrator’s aim to “maintain [their apartheid] regime through that conduct”. While it’s true that the Taliban seeks to maintain their de facto regime through their atrocities, I believe the motivation extends beyond mere regime maintenance. The Taliban’s convictions, politically, philosophically, and religiously, regarding the inferiority of women and their subjugation to men, run deeper than mere regime preservation. It’s not solely about maintaining a discriminatory regime; rather, it reflects a broader belief system. In this regard, GP may be better suited to bring justice to the women of Afghanistan, as GP extends beyond the limited scope of maintaining a discriminatory regime.

Striking Two Birds with One Stone: Issuing Arrest Warrants for Taliban Leaders

Afghanistan is a State party to the ICC, granting the Court jurisdiction over crimes committed by Taliban members within its borders. There is an ongoing investigation by the ICC into alleged crimes against humanity and war crimes committed in Afghanistan since 1 May 2003. Pre-Trial Chamber II of the ICC authorised the Prosecution to resume the investigation into the Afghanistan Situation on 31 October 2022, after a suspension. Thus, the investigation by the ICC in Afghanistan continues.

Although the ICC Prosecutor has recently published a policy on GP, no specific action has been taken against Taliban members.

Civil society’s involvement is key to exerting pressure on the ICC prosecutor and urging the court to prioritise addressing the dire situation in Afghanistan – recently ranked the saddest country in the world. A targeted campaign, grounded in the legal jurisdiction of the ICC, focusing on gender persecution regarding women’s plight could be effective. Advocating for the issuance of arrest warrants against key Taliban leaders would hit two birds with one stone, addressing this issue and potentially achieving two objectives simultaneously.

Firstly, it would constitute a significant stride towards accountability, marking the initial step to secure international recognition of the Taliban’s international crimes.

Secondly, it would preclude any possibility of diplomatic relations between State Parties to the Rome Statute and the Taliban’s de facto government – ensuring their non-recognition. If arrest warrants are issued, State Parties would be obligated to arrest the Taliban leaders and surrender them to The Hague if they were to enter their territory, as there are no immunities within international criminal law amongst State parties.

My sincere thanks to Dr Matthew Evans (University of Sussex) and Dr Mahir Hazim (University of Washington) for their review and insightful comments.

Print Friendly, PDF & Email

Leave a Comment

Your comment will be revised by the site if needed.

Comments