Holding the Taliban Accountable

August 15 marks the second anniversary of the U.S. military’s hasty exit from Afghanistan and the Taliban’s usurp of power. Since then, the Taliban has chiseled away the basic rights of women and girls in a multitude of ways, from denying them access to education to banning them from public parks. 

The Taliban’s latest crackdown on women’s freedom came on June 24 when all beauty salons were ordered to shut down. The situation in Afghanistan right now, according to Human Rights Watch, is “the most serious women’s rights crisis in the world. [Any] assessment of the international approach to the crisis in Afghanistan should prioritize human rights, especially the rights of women and girls.”

“The situation in Afghanistan right now is the most serious women’s rights crisis in the world.”—Human Rights Watch

On July 3, the United Nations issued its 2023-2025 Strategic Framework for Afghanistan. It supports the Afghan people’s basic human needs while prioritizing the rights of the most vulnerable—women and girls, children and youth, displaced persons, refugees, and ethnic and religious minorities.

When the U.N. Secretary-General Antonio Guterres convened a closed-door conference on Afghanistan in Doha (Qatar) in early May, the “de facto rulers” (the Taliban) were not invited. Instead, representatives of major European aid donors and neighbors such as Pakistan, the United States, Russia, and China, gathered to ponder how to engage with the Taliban and find a diplomatic approach to issues including “terrorism, the crackdown on human rights, and the spread of drug trafficking.”

With 97 percent of the country’s population living in poverty, Afghanistan remains the world’s “largest humanitarian crisis,” with twenty-eight million people in need of humanitarian assistance, according to Guterres. He added that the Taliban’s ban on women workers at NGOs “deliberately undermines the development of a country” desperate for contributions.

The Taliban has deprived Afghan women and girls of their ability to get an education. It has banned them from public parks, gyms, baths, and employment (including with NGOs), and from appearing in public without full head covering. Afghanistan is the world’s lowest-ranked country in the 2022 Global Gender Gap Index. As journalist Emma Graham-Harrison has said, “Afghanistan is currently the worst place to be a woman.”

The charge for which Taliban members could be held accountable under international criminal law is called “gender persecution.” Last year, the International Criminal Court (ICC) Chief Prosecutor, Karim Khan, KC, asked the Office of the Prosecutor’s (OTP) Special Adviser on Gender Persecution, Lisa Davis (Professor of Law, at the CUNY School of Law), to draft a Policy on the Crime of Gender Persecution. The document provides a roadmap of the legal arguments that could be used to investigate and prosecute gender-based harms as crimes against humanity.

On October 31, 2022, the ICC’s Pre-Trial Chamber authorized the Prosecutor to resume an investigation into the Afghanistan Situation, including allegations of persecution. 

Lisa Davis, co-director of the Human Rights and Gender Justice Clinic and co-founder of the Institute on Gender, Law, and Transformative Peace at the CUNY School of Law, also collaborated with international feminist organization MADRE to co-author the March 2023 report, Gender Persecution in Afghanistan: A Crime Against Humanity

“The Taliban’s conduct, including acts of flogging, torture, disappearance, and arbitrary detention, is used to enforce deprivations of basic fundamental rights based on gender,” Davis explains in an interview. “We have seen this pattern before, and it is time for perpetrators to be held accountable.” 

“Primarily, what the Taliban is doing is creating a system of violent control over women and girls.”—J.M. Kirby, director of advocacy at MADRE

“Primarily, what the Taliban is doing is creating a system of violent control over women and girls, but their acts of gender persecution certainly impact men and boys, and they also impact LGBTQ+ persons,” J.M. Kirby, director of advocacy at MADRE, tells The Progressive. “Alleged gender persecution cases recorded in Afghanistan include, for example, torture of women and girls for not complying with dress codes, of men who either won’t or can’t grow beards, and of people the Taliban perceive as LGBTQ+.”

Davis notes that an opaque footnote to the word “gender” in the Rome Statute may have contributed to the lack of investigations and prosecutions of such crimes. She has been a guiding force in ensuring the meaning of gender is clarified.

“It was important to clarify the definition of gender as more international tribunals take an interest in ensuring justice for gender persecution,” Davis says. “The global community may finally secure what could be the first successful prosecution in the history of gender persecution—a crime that has been on the books for decades under the Rome Statute, but for which no perpetrator has been held accountable.” 

The ICC’s open investigation on Afghanistan does not guarantee accountability for perpetrators in Afghanistan but is an important step in that direction. Legal analysis and strategies in potential gender persecution cases against the Taliban or other actors may be informed by decisions in other pending cases, including the ICC’s case on Mali and cases before the Special Jurisdiction for Peace in Colombia—a transitional justice court created in the wake of the 2017 peace accord, which has charged but hasn’t prosecuted perpetrators with gender persecution.

Kirby is encouraged by the ICC’s request for a policy paper focused on gender persecution, as well as the potential for victims of gender persecution to receive justice in the ICC, and the Colombian Special Jurisdiction for Peace.

“The slowness in prosecuting gender persecution has come down not just to ambiguity about the law, but to generalized patriarchy and homophobia that prevents people from recognizing gender persecution crimes because many of those crimes have become normalized,” Kirby says. “This is why it is important to show that there are circumstances where gender violence amounts to a crime against humanity.”

The policy paper also defines how the Office of the Prosecutor will approach certain crimes or themes and address victims’ protection. And it will prioritize these crimes by seeking to ensure victims receive recognition, protection, and justice.

MADRE and the Institute on Gender, Law, and Transformative Peace at CUNY hope the reports will help ICC investigators and other accountability mechanisms structure the way they review the evidence and prepare legal arguments to “capture gender persecution.” 

Helping to train investigators and judicial actors to “break it down, element by element,” Kirby says, can “take the blindfolds off” and help judicial actors recognize how gender discrimination is a crime against humanity.

MADRE’s conference in Pakistan the summer after Taliban’s takeover was an example of its work to amplify the voices of Afghan women in the diaspora. Most Afghan women in Pakistan and Iran feel “trapped” in these second countries. Living in extreme poverty and unable to find employment, they’re often at risk of being forced to cross the border into Afghanistan to renew their residency visas for these transit countries.

“We have heard of cases of women being detained and forced to remain in Afghanistan after going back to renew their visas,” Kirby says. “Many Afghan women refugees are fleeing death threats and gender-based violence, including domestic violence, which the Taliban not only directly perpetrates but also aids and abets through its edicts, policies, and violent enforcement mechanisms. Many of them are women’s human rights defenders who face extreme danger if they return.”

When and if the perpetrators of crimes against Afghan women are arrested, they could be tried in court in the Hague and, if convicted, could serve time in its detention center.

When and if the perpetrators of crimes against Afghan women are arrested, they could be tried in court in the Hague.

MADRE and Davis’s team are now working on their next report, which will focus on domestic violence and other fundamental rights deprivations amounting to gender persecution in Afghanistan. Afghan men are essentially beaten into submission by the Taliban to enforce the “mahram” rule or dress codes for their wives and daughters.

“To ensure meaningful reparations for survivors and victims, it’s important to show how gender discrimination underlies many crimes committed in the context of atrocities and conflict,” says Davis.

But, Kirby adds, “Reparations that address gender discrimination are only possible if people understand it as the driver of these crimes.” 


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