Taliban’s Gender Apartheid Is a Case for the ICC

Taliban’s Gender Apartheid Is a Case for the ICC

Charli Carpenter

Last week, a group of Afghan women appealed to the United Nations, imploring it not to recognize the Taliban’s proposed ambassador to the global body as the representative of their country. “The UN needs to give that seat to somebody who respects the rights of everyone in Afghanistan,” Fawzia Koofi, a former Afghan politician and peace negotiator, told reporters.

The group’s call was echoed by Ghulam Isaczai, the embattled ambassador appointed by the government the Taliban ousted, in remarks he made to the U.N. Security Council. “Women and girls in Afghanistan are pinning their hopes and dreams on this very council and world body to help them recover their rights to work, travel and go to school,” he said. “It would be morally reprehensible if we do nothing and let them down.”

Isaczai is right about women’s rights and the symbolism of international organizations’ responses to human rights violations in Afghanistan. But the Secu-rity Council is not the only international organization capable of playing that role, nor is recognition of the Taliban government and its representatives the only tool in the international community’s arsenal. To be sure, international recognition of the Taliban, if it co-mes at all, should come wi-th conditions that include the protection of women a-nd girls. But the Security Council is not the only international body that can be prevailed upon to take a stronger stand against the situation in Afghanistan—or even necessarily the best one.

One particular international body to watch, and for human rights groups to target with advocacy efforts, is the International Criminal Court, or ICC. The court’s incoming prosecutor, Karim Khan, has already indicated that he is seized of the situation in Afghanistan as pertains to the human rights of wom-en. In a speech at the Gl-obal Security Forum in D-oha earlier this month, for example, Khan urged the Taliban to reconsider their harsh edicts, citing hadit-hs—sayings of the Prophet Muhammad (PBUH)—that express respect for women as leaders and entrepreneurs. This is notable in two respects. First, Khan is joining a variety of Muslim voices worldwide pushing back against the Taliban’s interpretation of Islam on doctrinal grounds. A delegation of diplomats from Muslim countries visited Afghanistan this month to make the similar case that Islamic doctrine in fact supports women’s education and economic empowerment.

Second, as the ICC’s incoming prosecutor, Khan is the arbiter of another body of law—international criminal law—and he takes over from his predecessor the court’s ongoing investigation into the situation in Afghanistan.

The ICC has been investigating crimes occurring in Afghanistan since May 2003, when Afghanistan ratified the Rome Statute, the treaty establishing the ICC’s jurisdiction over crimes committed by or in the territory of state parties. The major focus of the investigation had been the armed conflict between the U.S. and Afghan national government on one side, and the Taliban as an armed group on the other. But given the open-ended nature of the investigation, the court could also consider evidence of atrocities committed by the post-August 2021 Taliban government itself, including gender apartheid.

The court has more than enough cause to prosecute Taliban leaders—and other parties to the conflict—for war crimes and crimes against humanity, including disappearances, summary executions, civilian killings, torture and arbitrary imprisonment. But the crime of gender apartheid is very specific. It is targeted specifically at women due to their gender, and unlike other kinds of persecution that other gender minorities might experience, it involves forced segregation of women and girls from public spaces, and exclusion by the state from social and economic benefits enjoyed by male citizens.

Certainly there is plenty of cause for concern on th-ese counts. Since the Tali-ban came to power in Afg-hanistan, many women de-scribe a kind of return to the Dark Ages. Widows ha-ve lost their pensions and cannot obtain provisions if they have no male relatives. Female high school and college students have been excluded from classrooms. Pregnant mothers are at risk because they cannot easily access health care. A former college student interviewed by Human Rights Watch sa-id, “It‘s not ordinary—you have no studies, no lessons, nothing. Just looking at the walls. This is like a prison.”

Gender apartheid begets other types of crimes agai-nst humanity as well. For example, forced marriage is now rampant, as families surrender their daughters as brides to avoid the execution of sons and fathers, or watch as they are kidna-pped. And draconian laws are enforced with draconian measures: The Ministry of Women’s Affairs has been replaced with the Ministry of Vice and Virtue, which has begun to mete out harsh punishments for dress code violations, including floggings. Afghan women have engaged in mass protests, but these have been harshly suppressed.

Gender apartheid is not defined in international law. Rather, it is a concept popularized by feminist legal scholars such as Ann Elizabeth Mayer, who argued in a law journal as early as 1999 that the failure to treat institutionalized gender apartheid on par with racial apartheid was based on the inaccurate notion that the treatment of women is a matter of culture rather than politics. Indeed, the very concept of gender apartheid refers not to everyday discrimination that arises due to cultural norms regardless of efforts by the state to create formal equality, but rather to systems of state-based government designed intentionally to exclude women and girls from public life or put them under the control of their male relatives.

The ICC is empowered to prosecute the crime of a-partheid, among other cri-mes against humanity enumerated in Article 7 of the Rome Statute. Although the ICC definition of apartheid focuses on race and not gender, the definition of “persecution” against specific groups in Article 7 explicitly includes the concept of gender persecution. Moreover, the definition of apartheid in the statute is immediately followed by a reference to “Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

The wording and proximity of these two phrases in the statute provides the ICC prosecutor plenty of ground to stand on in investigating and prosecuting gender apartheid as a crime against humanity. Such a landmark case would certainly burnish Khan’s reputation, and it would be a welcome change at the ICC, which has had a somewhat spotty record of prosecuting gender crimes, despite the most gender-inclusive language of any treaty in history. Indeed, given Khan’s criticism of the Taliban, he might already be thinking about pursuing such a case.

To be fair, women are not the only ones at risk of human rights abuses in Afghanistan. Journalists, intellectuals and those formerly employed by the Afghan government are by many accounts being hunted down for reprisals. Other minorities, such as LGBTQ persons, are at grave risk of persecution, assault or execution. Young men also face strict gender norms around dress, with beard trimming now banned, turbans required and flogging and amputations used as punishments. In a recent survey of adult Afghan internet users conducted by survey firm RIWI, men were almost as likely as women to say that they felt their life was at risk due to the Taliban.

But at the same time, the types of repression women face in terms of exclusion from social spaces and economic opportunities are qualitatively different and more severe than the variety of repressive acts that men and other groups experience for a wide variety of reasons. And these specific strictures are targeted at women specifically because of their gender. In other words, though many groups are at risk in Afghanistan, only women face gender apartheid. 

Another criticism of this approach would likely be that of selective justice. After all, Afghanistan is not the only country with egregious, state-sanctioned gender inequality. Saudi Arabia, for example, has also been accused of gender apartheid, with a system of gender discrimination so embedded in the state that the Saudi government even offers an app with which men can control the movement of their female relatives. But there is a good reason why the ICC should go after Afghanistan and not Saudi Arabia: because it can. After all, Saudi Arabia has not signed the Rome Statute. Afghanistan has, and it therefore comes under the ICC’s jurisdiction. It would be not hypocritical, but highly appropriate for the ICC to focus on crimes committed within its jurisdiction.

Some might also argue that a focus on gender apartheid under Taliban rule would only exacerbate the perceived illegitimacy of the ICC, given the widespread perception that the court has a Western bias. After all, the ICC has so far only convicted Africans and has been slow to investigate crimes involving Western countries, including the role of the Saudi-led and U.S.-backed coalition in the humanitarian crisis and famine in Yemen. This perception wasn’t helped last month when the ICC decided it would “deprioritize” allegations of U.S. and coalition crimes in Afghanistan, including excessive collateral damage from drone strikes and torture, and would focus instead on crimes allegedly committed by the Taliban and ISIS-K. While the optics of this decision were indeed poor to say the least, the fact that the ICC could not take on the U.S. in this instance should not be an excuse for arguing it shouldn’t do what it can, where it can.

A better argument against the ICC focusing on gender apartheid would be that it could distract from or substitute for more meaningful forms of human rights protection for women. If gender apartheid is a genuine crime against humanity, this argument goes, it is hard to see how an international investigation and eventual prosecutions would be anything other than too little, too late.

To be sure, prosecutions are no substitute for more meaningful action, and other international actors should keep up the pressure while Afghan women themselves organize to fight for their rights. But the perfect should not be the enemy of the good. Public recognition by the ICC that gender apartheid is a crime against humanity may not have an immediate deterrent effect either. But it is symbolically significant. And it would be even more symbolically significant, in the opposite sense, to carry out an investigation into Afghanistan that did not look at this crime with all the same gravity as the court is currently deploying to investigating other offenses. 

As political scientist Louise Chappell shows, women’s rights and human rights groups have often helped set the agenda at international courts through amicus briefs and by taking advantage of the opportunity to bring atrocities to the attention of prosecutors. Such groups taking aim at the Taliban’s treatment of women and girls would be wise to appeal to the ICC, as well as to other international bodies, on these grounds. The ICC prosecutor has an opportunity to make history by finally giving the crime of gender apartheid the attention it is due. He should seize it.

She tweets at @charlicarpenter.

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