The Afghanistan referral: gender-based persecution or apartheid?
On 28 November, in accordance with Article 14 of the Rome Statute, the government of Spain, together with the governments of Chile, Costa Rica, France, Luxembourg and Mexico submitted a referral of the situation in the Islamic Republic of Afghanistan to the Office of the Prosecutor of the International Criminal Court (ICC), considering the serious deterioration of the human rights situation, especially for women and girls.
In particular, the six countries asked the Office of the Prosecutor to consider crimes committed against women and girls following the Taliban takeover in 2021 within its ongoing investigation into the situation in Afghanistan.
Since the Taliban takeover and the proclamation of the “Islamic Emirate” in August 2021, a regime has been in place in Afghanistan that severely restricts the exercise of the rights of girls and women. In 2020, the Appeals Chamber of the ICC Court authorised the prosecution to investigate alleged crimes committed on the territory of Afghanistan since 1 May 2003, as well as crimes linked to the armed conflict and the situation in Afghanistan, which were committed on the territory of other ICC States Parties since July 2002. Following a period of deferral resulting from an admissibility challenge by the former Government of Afghanistan, on 31 October 2022, Pre-Trial Chamber II authorised the Office of the Prosecutor to resume the Afghanistan investigation.
The decision taken by the six countries responds to the request for full engagement of the international community and its institutions to oppose the architecture of oppression embodied in the Taliban’s approach to governance. It also represents a step towards the recognition that the regime is committing fundamental international crimes, including the crime against humanity of gender-based persecution.
In this regard, it should be recalled that international criminal law recognises that individuals may be subjected to violence because of their sexual characteristics and/or the social and cultural constructs and criteria used to define gender-determined behaviours, roles, attributes and responsibilities. In this way, people are deprived of a wide range of human rights, including the right to life, the right to physical integrity, the right not to be subjected to torture or cruel, inhuman or degrading treatment, the right not to be subjected to slavery or the slave trade, freedom from rape, freedom from arbitrary detention, freedom of expression, freedom of assembly and association, freedom of movement and religion, the right to private property, political participation, education and health.
However, this is a recent achievement. In recent decades, the international community has taken progressive steps to end impunity for perpetrators of sexual and gender-based crimes.
The ICC Statute is the first international instrument to expressly include various forms of sexual and gender-based crimes (including rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilisation and other forms of sexual violence) as acts constituting both crimes against humanity and war crimes committed in international and non-international armed conflicts. The Statute also criminalises gender-based persecution as a crime against humanity.
More precisely, Article 7(1)(h) of the Statute states that “for the purposes of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack…… (h) Persecution of a distinct group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds universally recognised as unacceptable under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.”
Jurisprudence on the subject is scarce. Therefore, in 2022, the ICC Office of the Prosecutor issued the Gender-Based Persecution Crime Policy aimed at strengthening accountability for gender-based persecution crimes. In order to inform the development of the Principles, the ICC Office of the Prosecutor opened a call for submissions, which closed on 22 November 2024. These results will feed into the drafting of the Principles, which will begin in 2025. The final outcome will be the launch of the Principles in October 2025 during the celebration of the twenty-fifth anniversary of UN Security Council Resolution 1325 on women, peace and security. This new initiative, which complements and builds on the Policy 2022, will help to further promote accountability, transparency and predictability in the work of the OTP in this crucial area and will serve as a broader guideline at the international level. The principles will be developed on the basis of international criminal law and human rights law, drawing on applicable treaties and general principles and rules of international law. It will also draw on the jurisprudence of the Court and other relevant human rights and accountability mechanisms.
However, the situation of women and girls in Afghanistan raises another question.
Is it persecution or is it something different?
As stated in the latest report by the Special Rapporteur on the situation of human rights in Afghanistan, Richard Bennett, presented to the 56th session of the Human Rights Council, “the Taliban’s institutionalisation of its system of discrimination, segregation, disregard for human dignity and exclusion of women and girls, and the harm it has entrenched, must shock the conscience of humanity”. The report provides an intersectional analysis of the establishment and implementation of an institutionalised system that discriminates against women and girls, segregates them, violates their human dignity and excludes them. In particular, in his findings, the Rapporteur highlights that “the enshrinement of an ideology of gender oppression in Afghanistan’s legislation and governance has eroded any autonomy and empowerment of women and girls that may have existed under a flawed previous administration. It has deprived them of the enjoyment of their human rights and caused them deep and lasting harm. Without concerted action, these harms will reverberate across generations and potentially around the world.”
In the same vein the Working Group on Discrimination against Women and Girls, in its “Report on the Situation of Women and Girls in Afghanistan” of February 2024, defines this situation as a system of gender apartheid, which deserves the attention and concern of the international community. “The Taliban impose all these deprivations through plans and practices calculated to subject a group to severe oppression and domination by excluding them from political, economic, social and cultural participation and development. These acts, practices and policies are consistent with those considered inhumane acts in the service of an apartheid regime, which are listed in Article II(c) of the International Convention on the Suppression and Punishment of the Crime of Apartheid, and could easily constitute a crime of gender apartheid if it were recognised as an international crime”.
For it is clear that the crime of persecution alone does not fully capture the scope and extent of systemic domination and the institutionalised and ideological nature of the abuses being committed.
This is why the situation in Afghanistan has often been referred to as “gender apartheid”, to emphasise that, unlike gender-based persecution, this situation involves an underlying dystopian intention to maintain an institutionalised regime of systematic oppression and domination against an underclass that is subjugated to the profit and survival of the dominant group, and is dehumanised and deprived of the resources and access necessary to overcome this calculated oppression.
However, today, international criminal law only covers the criminal offence of apartheid on a ‘racial’ basis. More precisely, Article 7(1)(j) of the ICC Statute recognises the “crime of apartheid” as a crime against humanity, which includes “inhumane acts of a character similar to those referred to in paragraph 1 committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over one or more other racial groups and with the intention of maintaining that regime”.
Although gender apartheid is not yet codified as a crime against humanity, it designates with extreme precision the institutionalised oppression that characterises the Taliban mode of governance.
Consequently, for decades, experts have called on the international community to recognise and combat the evolving phenomenon of gender apartheid. Calls by the Special Rapporteur on freedom of religion or belief in the late 1990s and, more recently, by the Working Group, the Special Rapporteur on the situation of human rights in Afghanistan, the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran and other special procedures of the Human Rights Council, the Secretary-General and representatives of the United Nations Population Fund and UN Women, among others, have uniformly underscored the importance of codifying gender apartheid in international law.
It has been proposed that the definition of apartheid as a crime against humanity in the Statute be applied to gender. Thus, apartheid would include all inhumane acts committed in the context of an institutionalised regime of systematic oppression and domination of one gender group over any other gender group or groups and committed with the intention of maintaining that regime. Recognition of the crime of gender apartheid would fill a gap in international law and contribute to greater accountability for those responsible for these crimes.
For this to be realised, an amendment to the Rome Statute is needed. However, this issue does not seem to be the subject of discussion at the 23rd session of the Assembly of States Parties to the ICC, which is taking place this week in The Hague.
Consideration should also be given to the possibility of including “gender apartheid” as a crime against humanity in article 2 of the Draft Articles on the Prevention and Punishment of Crimes against Humanity, which is currently under discussion within the international community, in order to fill the existing gap in relation to the prohibition of crimes against humanity. Indeed, despite their classification as delicta iuris gentium in Article 7 of the Rome Statute, unlike other international crimes, such as war crimes (Geneva Conventions and their Additional Protocols) and genocide (Convention on the Prevention and Punishment of the Crime of Genocide), there is no independent international treaty codifying these crimes. On 22 November 2024, the UN Sixth Committee adopted by consensus a resolution to advance negotiations on a draft treaty on crimes against humanity. The resolution calls for a concrete and time-bound process, consisting of preparatory sessions in 2026 and 2027, and three-week negotiations in 2028 and 2029, during which a treaty will be finalised.
This negotiation process provides an opportunity to push for the codification of this gross and systematic violation of fundamental human rights as a crime against humanity, an opportunity that must not be missed.
While a backlash against women’s and girls‘ rights has been unfolding in different countries and regions in recent years, nowhere else in the world has there been such a widespread, systematic and comprehensive attack on women’s and girls’ rights as in Afghanistan.
The prevailing oppression, segregation and discrimination faced by women and girls in this country alerts us to the need for the full commitment of the international community and its institutions to oppose and combat gender oppression and to take effective measures to equip international criminal law with sufficient tools to combat impunity and ensure an adequate international response to the commission of international crimes.
Alessia Schiavon, FIBGAR Executive Director
4 December 2024
