Gender Persecution in Afghanistan: Implications for ICC Investigation
The recent 78th session of the United Nations General Assembly brought attention to the pervasive gender persecution and apartheid in Afghanistan, notably exacerbated by the Taliban's policies, prompting discussions on the role of the International Criminal Court (ICC) in investigating these as crimes against humanity. Despite international calls for justice and the ICC's renewed focus on gender persecution, the quest for gender equality and human rights in Afghanistan remains fraught with complexities, including the adequacy of the ICC's jurisdiction and the practical challenges in ensuring justice.
During the 78th session of the United Nations General Assembly (UNGA) last week, the issue of gender apartheid and gender persecution in Afghanistan came to the forefront; the international community has widely condemned the Taliban's treatment of women and girls. At a high-level event on 'Global Solidarity with Afghan Women and Girls,' USG Rosemary DiCarlo emphasized the importance of advocating for women's fundamental rights and promoting their political participation. In the same vein, Richard Bennett, the Special Rapporteur on human rights in Afghanistan, highlighted the severe discrimination experienced by women and girls in the country, which may amount to gender persecution and be characterized as gender apartheid. Bennett emphasized that the de facto authorities in Afghanistan appear to be governed by systemic discrimination to subject women and girls to total domination. These events at the UNGA have raised critical questions about the women's current situation in Afghanistan and the role of the International Criminal Court (ICC) in addressing this dire situation.
Gender-Specific Regulations in Afghanistan
Following the resurgence of the Taliban in Afghanistan in August 2021, a wave of gender-specific regulations has swept the nation, disproportionately affecting Afghan women and girls compared to their male counterparts, including limitations on freedom of movement, expression, and association; prohibitions on virtually all employment; bans on secondary and higher education; and arbitrary arrests and violations of the right to liberty.
In response to these alarming developments, UN experts have called for respect for women's rights and an end to gender-based discrimination. They have urged the Taliban to lift restrictions on women, including those working with NGOs, and to fulfill their obligations under international human rights instruments, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The international community is also exploring ways to support Afghan women and girls, such as providing humanitarian assistance and advocating for their rights. However, achieving justice and equality for Afghan women and girls remains a complex and challenging task in the face of the Taliban's repressive policies and the ongoing humanitarian crisis in the country.
A Conceptual Overview
Before delving into the Afghan context, it is essential to develop a comprehensive understanding of gender persecution. Gender persecution is a crime against humanity involving intentional and severe deprivation of fundamental rights based on gender. As defined by Article 7 of the Rome Statute, it constitutes a forbidden action that can potentially qualify as a crime against humanity. This act of persecution involves four critical elements: 1 The perpetrator is severely deprived of rights against international law, 2 Perpetrator is targeted based on gender, 3 Deprivation caused severe harm or life threat, and 4: Deprivation is part of widespread or systematic attacks on civilians.
Gender persecution can take many forms, including murder, torture, enslavement, sexual violence, forced prostitution, forced pregnancy, enforced sterilization, or any other form of gender-based violence. The lack of state protection can also be an essential element in gender persecution.
“The call for justice in the face of gender persecution in Afghanistan is both compelling and urgent. The ICC’s investigation offers hope for countless women who have endured suffering and oppression. However, this pursuit of justice is not without its complexities and challenges.”
Delving Deep: Examining Gender Persecution in Afghanistan
The Taliban's treatment of women and girls in Afghanistan has been described as gender persecution, a crime against humanity, by Amnesty International and Human Rights Watch. Afghanistan is a party to the Rome Statute of the International Criminal Court (ICC). On October 31, 2022, the ICC authorized the prosecutor to resume its investigation into Afghanistan. The investigation covers alleged crimes against humanity and war crimes committed in Afghanistan since May 1, 2003, by various parties, including the Taliban. While the ICC's current focus is specifically on gender persecution, the ICC's Office of the Prosecutor (OTP) launched its Policy on Gender Persecution in December 2022. This policy aims to enhance the OTP's ability to investigate and prosecute gender-based rights violations within its jurisdiction.
To ascertain whether the Taliban's discriminatory measures against Afghan women and girls constitute a crime against humanity of persecution based on gender, their policies must be assessed in line with Article 7 of the Rome Statute and the Office of the Prosecutor's "Policy on the Crime of Gender Persecution." Based on these documents, it appears that the Afghanistan situation meets all the crime elements. Here is how the elements of gender persecution apply to the situation in Afghanistan:
Shabnam while working for the Afghanistan Human Rights Commission in 2020
The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights: The Taliban's treatment of women and girls in Afghanistan has involved severe deprivation of fundamental rights, including the right to education, work, and freedom of movement which are granted by international conventions.
The perpetrator targeted the victim or victims based on gender: The Taliban's treatment of women and girls in Afghanistan has been based on gender, only women and girls being subjected to severe restrictions on their rights and freedoms.
The deprivation of fundamental rights was severe, which involved serious physical or mental harm or a threat to life: The Taliban's treatment of women and girls in Afghanistan has involved severe physical and mental harm, including torture and other ill-treatment.
The deprivation of fundamental rights was part of a widespread or systematic attack directed against a civilian population: The Taliban's treatment of women and girls in Afghanistan has been part of a widespread or systematic attack directed against the civilian population, particularly women and girls.
Looking into all the above examples, we can see the situation in Afghanistan meets all the elements of gender persecution, and it can be investigated under the ICC's jurisdiction.
A Pervasive Call for Justice
The call for justice in the face of gender persecution in Afghanistan is both compelling and urgent. The ICC's investigation offers hope for countless women who have endured suffering and oppression. However, this pursuit of justice is not without its complexities and challenges.
A concerted effort is needed on multiple fronts to address this profoundly ingrained issue. International support, academic research, and diplomatic endeavours are all crucial in ensuring justice prevails in Afghanistan. As we reflect on the path forward, several questions arise. What steps can Afghans take to put an end to gender apartheid and promote human rights in Afghanistan? Should they advocate for the ICC to investigate the Taliban's gender crimes against humanity or work towards an international gender apartheid convention? Additionally, can the ICC provide justice for victims of gender persecution and promote human rights in Afghanistan despite not taking action in the last 20 years of the Afghanistan case? Answers to these questions are still needed.
