By Zalmai Nishat

Keeping track of recent developments in the international scene regarding the appalling situation of human rights in general in Afghanistan, and the situation of women in particular, is necessary to keep abreast of the fast-paced changes. Three parallel developments are of notice in the international legal scene. This piece suggests a quick review and description of each of the three parallel developments, without going into details about each of them. This is to provide an overview to help the readers to keep abreast of developments in international legal scene.

Three International Legal Parallel Developments

First, in the margins of the recent 79th session of the UN General Assembly (UNGA 79), which was opened on 10 September 2024, four countries’ foreign minister announced that they are taking the Taliban de facto authorities to the International Court of Justice (ICJ) for “gender discrimination.” This is a groundbreaking development and its importance cannot be overstated. This development can have an accelerating effect on the two other efforts going on in the international legal scene on the situation of women in Afghanistan. Secondly, there are efforts advocated by a number of civil society organisations to persuade the Sixth Committee (Legal) of the UN to include the definition of “gender apartheid” in the Prevention and Punishment of Crimes against Humanity Treaty (CAH). So far, several countries have supported the insertion of the definition of the term in the CAH Treaty and the opening of negotiations on the treaty. It is worth mentioning that the Strategic Litigation Project (SLP) at Atlantic Council, in partnership with the Global Justice Center, has assisted a large number of civil society figures from Afghanistan and Iran to launch a campaign to end “gender apartheid” in these two countries. The campaign is called End Gender Apartheid, and a number of prominent jurists, scholars, and civil society representatives from around the world support the campaign. Through a joint open letter, they have urged United Nations Member States to codify the crime of gender apartheid in the CAH Treaty. Finally, the International Criminal Court (ICC) has faced a mounting pressure after the Taliban came into power to resume investigation into, among others, the alleged crimes committed on the territory of Afghanistan since 2003, but nothing tangible has come of these efforts, so far. Let us review each of the above processes in turn. Nevertheless, before that, a quick historical review of what happened in Afghanistan, by way of giving a context, can prove helpful.

The Re-enactment of Gender Slavery by the Taliban in Afghanistan

After the Taliban took over Kabul in 1996 and the internationally recognised Islamic government of Burhanuddin Rabbani and Ahmad Shah Massoud retreated to the northeast of the country, the Taliban enacted a regime of what now has become known as “gender apartheid,” where women have no political, civil or social rights in society. According to SLP, “gender apartheid occurs when perpetrators seek to maintain an institutionalized regime of systematic gender-based oppression and domination.” Since their resumption of power in August 2021, the Taliban has issued a few dozens of decrees. Almost all those, in one way or another, restrict women and girls by condemning them completely to their homes. Once again, the females of Afghanistan have no political, civil or social rights in society. In July 2024, the Taliban issued the decree of Prevention of Vice and Promotion of Virtue, which prohibits women from speaking or showing their faces outside their homes, rendering them faceless and voiceless. The previous set of decrees had banned them from education above grade 6, right to work except in public health but with a proviso of being accompanied by a male chaperon, right to peaceful assembly and protest, right to free move, without male companion and right to even go to a park to take a fresh breath. This is a very dire situation. It is not only “gender apartheid,” but also “gender slavery,” as the famous scholar of Afghanistan, Professor Michael Barry, put it to me recently in a private conversation. It is in the face of this that the three international legal parallel developments should be understood.

Taking the Taliban to the International Court of Justice

As mentioned above, on 25 September 2024, foreign ministers of Australia, Canada, Germany, and the Netherlands announced their intention to take the Taliban administration to the International Court of Justice (ICJ). They announced that they had formally taken steps to call on de facto administration of Afghanistan, the Taliban, to cease its violations of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The next day, 22 more States joined these four original states to support the initiative ‘under Article 29 of CEDAW’. There is a difference between the “state of Afghanistan” and the “de facto administration” as the former is obliged to uphold all the international conventions the “state” signed to while the latter happens to be effectively ruling the country despite not being formally recognised by any of the UN member states at the moment. Since state parties to CEDAW recognise the jurisdiction of the Court for the settlement of disputes that may arise under the treaty, any state party to the treaty can take another party to the ICJ, and in this case, the four above-named countries decided to take the de facto authorities to the international judicial body.

Crimes Against Humanity and Gender Apartheid

In addition, as alluded to above, a strong lobby is active to urge the UN General Assembly to open formal negotiations on Crimes Against Humanity (CAH) Convention to include in the CAH a definition of “gender apartheid,” and 11 states have joined the call so far. From late October 2024 until 22 of November, the Sixth Committee of the UN will meet to discuss the issue further. This is a crucial time for the civil society activists to pressure the member states to support the initiative. The number of state supporting the initiative might rise, given the recent development regarding taking the Taliban to the ICJ.

The CAH is an evolving document and it is periodically drafted and redrafted. In 1998, for example, racial apartheid was included in the CAH as a crime against humanity as well as war crimes. A powerful lobby is working with the UN member states to support the opening of the negotiation in the new draft of the CAH and this time the concept of “gender apartheid” should be added to the international treaty.

International Criminal Court and Afghanistan

Legally speaking the Pre-Trial Chamber II of the International Criminal Court (ICC) has to assess the ‘question of which entity actually constitutes the State authorities of Afghanistan since 15 August 2021’ (para 16) and without passing a legal judgment on this issue the ICC cannot grant the Prosecutor’s request for persecution of any individuals internationally. After a process of consultation with the UN and the Bureau of the Assembly of States Parties to the Rome Statute of the ICC, the onus of responding was on the Chamber to answer the question itself to resolve uncertainty (para 14). It noted that ‘changes of governments have no impact on the continuity of States,’ per the precedence of ICC with situations in Mali and Darfur, Sudan. Another precedence was the ICJ cases concerning Niger (2010) and Myanmar (2021) where the new governments represented their respective States during the proceedings before the ICJ despite the change of power in these States by coups d’état, which were condemned widely (para 15). For the Chamber effective control of the State qualifies the de facto authority as its governing body under international law, regardless of how it came to power, be it through a coup d’état or civil war. The Chamber therefore made it clear that the Registrar should communicate with the de facto authorities in Kabul regarding the Prosecutor’s investigation of any of its nationals or entities within its jurisdiction (para 16). This could be a precedent for the ICJ too.

The Relentless Campaign and Struggle of Women of Afghanistan

After the Taliban announced their new decree of Prevention of Vice and Promotion of Virtue the European Parliament adopted a resolution to call the situation of women in Afghanistan as “gender apartheid.” Previously, the UK Parliament held an inquiry on the situation of women in Afghanistan and Iran. The report of the UK Parliament was released in March 2024, which recognised the situation of women in both countries as “gender apartheid.”

Before all of these developments in the international legal scene on the situation of women and girls in Afghanistan, the valiant “civil resistances” of the women of Afghanistan and the “cultural resistances” of the people coupled with their “armed resistances” the country are just unforgettable which in fact made all these development possible. It was on the back of these resistances – within the country and by the diverse exiled communities of the Afghanistan overseas – that the international community is taking such unprecedented and groundbreaking steps. The changes in the international legal scene is due to the immense pressure exerted by the grassroot activities and movements of the people of Afghanistan, chiefly its brave women. This is a strong testament to the fact that the people of Afghanistan won’t stop short of restoring freedom, equality, dignity and human rights in their country.

Zalmai Nishat is the founder and executive chair of Mosaic Foundation, a non-profit in the UK, focusing on Afghanistan and the region. Previously, Zalmai Nishat was the Programme Lead for Central and South Asia at the Tony Blair Institute for Global Change (TBI). X: @ZalNishat

The author wishes to express his special thanks to Dr Seyfullah Hasar, @SeyfullahHasar, Asst. Prof of International Law at Dicle University, Turkiye, for reviewing the piece.

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The article does not reflect the official opinion of the AISS.