Attachments
If this is done to a racial group in any country, we will be asking questions about persecution as a crime against humanity. What do we call it when it happens to half the population on grounds [of] their gender?1 – Chile Eboe-Osuji, Former President and Appeals Judge, International Criminal Court, responding to the Taliban’s denial of education and other fundamental rights to women and girls in Afghanistan.
Your Honour is right. It is a crime against humanity. It is gender persecution.2 – Dr. Rosemary Grey, Senior Lecturer, Sydney Law School, responding to Eboe-Osuji
I. Introduction
“[T]he worst country in the world to be a woman or a girl,” is how the United Nations (UN) Special Rapporteur on the situation of human rights in Afghanistan recently described Afghanistan.3 After seizing power, the Taliban banned women from political participation and from most jobs, excluded most girls from education past grade six, and eliminated women’s right to attend higher education.4 They all but eliminated gender-based violence services and legal protections,5 and imposed mahrams, or male guardians on girls and women leaving their homes.6 The Taliban has also outlawed protests by women and their supporters who oppose the new restrictions.7 Men, women, boys, and girls must adhere to strict gendered dress codes and other appearance regulations, with the Taliban calling for full cover burqas for women and girls.8 Lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+9 people have no legal protections and face heightened danger. The Taliban’s stated policy is to flog, stone or otherwise kill people deemed “homosexual.”10 While gender inequality and gender-based violence crimes are not new in Afghanistan,11 local women’s advocates secured some advances in the decades between the Taliban’s ouster in 2001 and its takeover in 2021. These included greater political participation, increased access for girls to education, and a measure of justice and protection for some gender-based violence survivors.12 The Taliban takeover of Afghanistan in August 2021 represented a dramatic setback for gender equality that largely eliminated these gains.
As fighters rolled into Kabul, Taliban members told international media they would respect women’s rights “within the framework of Islam.”13 Their promulgation and violent enforcement of discriminatory policies make clear that their understanding of that framework is in direct opposition to women, girls, and LGBTQI+ people’s fundamental human rights, as well as to globally accepted interpretations of Islam.14 Of course, whatever their religious interpretation, under international law, their “[b]reaches of fundamental rights cannot be ignored, dismissed or justified on the basis of culture,” including religion.15 From its initial period in power in the 1990s through to today, the Taliban has used violence to enforce discriminatory gender regulations and policies. As described in depth in this briefing,
Taliban members have committed torture, sexual violence and other inhumane acts targeting women, men, girls, boys, and LGBTQI+16 people, that they believe transgress their imposed gendered dress and appearance regulations.
They have attacked girls’ schools, killed girls’ teachers, and sprayed acid in women and girl students’ faces. The Taliban have routinely beaten, unlawfully arrested, held incommunicado, inhumanely treated and tortured women and girls who protest their discriminatory restrictions. They have subjected journalists reporting on women’s demonstrations to similar treatment.
These and other acts likely amount to the crime against humanity of persecution on the basis of gender (gender persecution) under the Rome Statute (the Statute) of the International Criminal Court (ICC). As the only holistic charge that recognizes crimes committed on the basis of gender in the context of conflict and other atrocities, gender persecution is a vital tool for holding perpetrators accountable.17 By analyzing the evidence emerging from Afghanistan in light of gender persecution’s legal elements, the Taliban’s discriminatory policies and conduct can be recognized as amounting to both grave human rights violations and to crimes against humanity, including the crime of persecution based on gender (gender persecution).
About this Report
This report begins with an explanation of the elements of the crime against humanity of gender persecution under the Rome Statute, and how a fundamental rights lens can help investigators, prosecutors, judicial actors, documenters, and advocates recognize it and holistically ensure justice. Next it describes the Taliban’s policies depriving Afghans of fundamental human rights on the basis of gender, and the discriminatory ideology underpinning them. It also provides an overview of the violent crimes they committed throughout their existence to enforce those policies.
The remaining sections provide in-depth analysis of the Taliban’s acts to deprive Afghans of three fundamental rights—an incomplete list meant to be a representative sample—on the basis of gender: the rights to education, assembly, and expression. They describe the evidence demonstrating that the Taliban has promulgated policies to deprive each of these fundamental rights on a discriminatory basis, and provide samples of crimes they committed in order to enforce the rights violations. Each of the three sections contains an analysis of the Taliban’s actions in light of the elements of the crime of gender persecution. This analysis focuses on the first four elements of persecution under the Rome Statute, excluding the chapeau elements for crimes against humanity. This is the first in a series of reports and briefing papers analyzing gender persecution in Afghanistan as well as other conflict and atrocity settings. Sources for this document include publicly available human rights reports, news articles, international case law and legal standards, and text produced by the Taliban.18 All acts and crimes discussed in this report have been documented or alleged by their sources, but have not been proven in a court of law. This report refers to these acts or crimes as such for the purposes of analyzing them as possible crimes of gender persecution.
Diverse forms of accountability may occur in response to conflicts and atrocities. However, before any accountability mechanism may commence there must first be agreement on what constitutes a crime or wrongdoing. It is not enough to hold perpetrators accountable for the harms they cause; we must also understand why crimes happen if we are to root out cycles of violence. The recognition of gender persecution as a crime can help visibilize victims/survivors19 who are targeted because of gender and other intersecting identities. As The ICC’s Office of the Prosecutor’s (OTP) Policy on the Crime of Gender Persecution (Policy on Gender Persecution) reminds us, “such crimes can reflect the continuum of historical and longstanding structural discrimination and fundamental rights deprivations experienced by women, girls and LGBTQI+ persons.”20 By shedding light on gender persecution, we help unearth the discrimination underlying these crimes and fueling conflicts, and demonstrate to the world that targeting women, girls, men, boys, and LGBTQI+ persons because of their gender is a crime against humanity.