About Humanness: Reconceptualizing the Taliban’s Treatment of Afghan Women as a Crime Against Humanity

[Viola Santini is an MA student in International Law at the Geneva Graduate Institute. She has actively participated in multiple Human Rights Council sessions, working alongside the Permanent Mission of Afghanistan to UNOG and the Advocacy team of Human Rights Watch. Currently, she is interning with the Rule of Law, Human Rights, and Security team at UNDP, and working as a research assistant for a member of the ILC]. 

Since the takeover of Kabul in August 2021, the situation of women in Afghanistan has exemplified and, at the same time, represented the most extreme expression – of the country’s condition under the de facto rule of the Taliban. In this post, I will delve into the conceptualization of the escalating human rights violations endured by Afghan women, and explore the legal implications associated with it. Specifically, I aim to engage with the discourse unfolding within the UN Human Rights Council (HRC) and led by a group of UN experts that includes the Special Rapporteur on the Situation of Human Rights in Afghanistan, Mr. Bennett, as well as members of the Working Group on Discrimination against Women and Girls. 

A Call for Precision of Categorizations at the HRC

Since the Special Session of the Human Rights Council (HRC) in 2021, the plight of women and girls in Afghanistan has received significant attention. This has been reflected in dedicated resolutions, dialogues, and events within the HRC. However, prior to September 2022, the references made acknowledged widespread and severe gender-based violations, with the term “gender apartheid” used more as a discursive tool than an official classification under the legal framework of apartheid. The recent report presented during HRC53 has further complicated the classification of these crimes, as it does not clearly distinguish between “gender apartheid” and “gender persecution.” Experts have emphasized that women and girls in Afghanistan face profound discrimination, which can be considered gender persecution amounting to a crime against humanity and, at the same time, characterized as gender apartheid.

The term “gender apartheid” has resurfaced in relation to the human rights violations faced by women and girls in Afghanistan. Initially coined in 1999 to describe, alongside with the highly contested and manipulated notion of “war against women”, the plight of Afghan women, it has gained renewed attention since August 2021. The term’s evocative nature and its ability to capture the severity of the situation have led to its widespread use by the press and experts. It has transitioned from being used in discourse to being incorporated into official reports, highlighting its significance in defining and denouncing the crimes committed against women and girls.

However, it is important to note that Afghanistan is a party to the International Convention on the Suppression and Punishment of the Crime of Apartheid (ICSPCA) and the Rome Statute of the International Criminal Court, both of which define apartheid as inhumane acts committed by one racial group against another. As such, applying the term “apartheid” to the gender segregation enforced by the Taliban would not align with the current legal framework, requiring a redefinition of the concept. Furthermore, there is a concern that using the term “apartheid” in this context may create a disconnect between its gravity and significance and the practical limitations in achieving desired outcomes under the legal concept of apartheid.

In contrast, categorizing these violations as crimes of persecution offers legal precision without sacrificing its evocative power. By highlighting the systematic nature of persecution, it underscores the institutionalization of discrimination while allowing a focus on individual perpetrators and unifying the community of victims. This categorization provides a more accurate and effective legal framework for addressing the human rights violations faced by women and girls in Afghanistan.

The Taliban’s Treatment of Afghan Women as a Crime Against Humanity

The previous discussion alludes to the potential classification of the treatment of Afghan women as a crime against humanity, whether categorized as apartheid or persecution. However, it is worth delving deeper into this possibility to determine whether and how it is more advantageous than classifying these acts as serious human rights violations. Further exploration of this issue can shed light on the most appropriate framework for addressing these grave offenses.

First of all, it is important to keep in mind that crimes against humanity – unlike genocide and war crimes – have not yet been codified in a dedicated treaty. However, they are criminalized as part of the 1998 Rome Statute. Art. 7(1) of the Statute provides for a list of material acts that, in order to constitute the crime, must “be committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Art. 7(2)(a) specifies that these acts must be committed pursuant to an organizational or State policy.

The wording “civilian population” contained in Art. 7 must not be interpreted as requiring a nexus with armed conflict, as explained by Schabas in his Commentary. All in all, this reading is confirmed by the very preamble of this instrument, where the parties recognize the crimes within the jurisdiction of the ICC as threatening the “peace, security and well-being of the world”. It would be somewhat strange to concede that these crimes should only occur in times of war, namely when such shared goods have arguably already been compromised. It is important to clarify this detail in the case at hand, as there is no nexus – in the terms set out by the ICTY Appeal Chamber in the Kunarac judgement (para. 57) – between the violations of women’s rights and as the NIACs currently going on in Afghanistan.

The wording of Art. 7 also helps us singling out the elements – widespread nature, systematicity, and willful organization – that distinguish a serious human rights violation from a crime against humanity. These requirements rule out isolated acts and, through the organizational policy requirement, are able to link together crimes that might happen over a large geographical area, for an extended period of time and involving many different victims. Thus, it is possible to conclude that serious human rights violations are constitutive of crimes against humanity, as the underlying material acts might be the same, but are a broader category as they do not require the existence of the above-mentioned definitional elements. 

In the specific case under analysis here, can we – and if yes, why should we – conceptualize the Taliban’s actions against Afghan women as crimes against humanity, rather than serious violations? It seems from the analysis of the facts that the discriminations and privations of fundamental rights enacted by the Taliban against Afghan women are not isolated acts, but rather repeated ones that fulfill the requirements of widespread nature and systematicity and are part of an organizational and willful policy of the de facto Government, which has gained exclusive and effective control of the territory since August 2021. It is undeniable that the element of knowledge is also present, since the measures that deprive Afghan women of certain specific rights – such as the right to free movement or the right to education – are the fruits of legislation and enforcement by the current government. Therefore, they could amount to crimes against humanity pursuant Art. 7(1) of the ICC Statute. 

The Taliban’s Treatment of Afghan Women as the Crime of Persecution 

Having assessed that the situation under analysis here could fit into the broader category of crimes against humanity, I will now consider which specific “letter” of Article 7 they may fit. It is useful to point out again that apartheid falls indeed under the category of crimes against humanity as well, implicating that the characteristics outlined above would descriptively apply to both apartheid and Perseuction. The latter is defined in Art. 7(1)(h) and 7(2)(g) as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”. Notably, Art. 7(1)(h) explicitly lists gender among such groups. 

The most interesting element is that, as noticed by Schabas, persecution is somehow at the core of crimes against humanity, as it comprises acts that – unlike murder, rape or enslavement – might be legal under the national legal system. Notice that this seems to be exactly reminiscent of the current situation in Afghanistan, where gross violations of women’s rights are being legalized and systematized throughout the territory on the basis of their (alleged) consistency with Islamic Law. 

Likewise, persecution maintains a strong bond with the underlying serious human rights violations, as it consists of the “severe deprivation of fundamental human rights on discriminatory grounds”. Which these rights are is not specified, nor in the Rome Statute nor in the related Elements of Crimes provision. I believe we could assume that these rights are, at a minimum, the ones from which, according to relevant international treaties, no derogation is permitted (General Comment 24 Human Rights Committee), among which we find the right to life and freedom from inhuman, or degrading treatment. 

The most problematic aspect that arises when dealing with the category of Crimes of Persecution is tied to the final part of Art. 7(1)(h). Here, it is stated that the crime has to occur “in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.” This phrasing seems to imply that this crime requires not one, but two material elements – namely, the widespread and systematic violation of fundamental human rights on a discriminatory base and the concurrent occurrence of a violation of an act listed in Article 7 or of a crime under the jurisdiction of the Court. C. K. Hall notices the circularity of this argument, pointing out that persecution itself is a crime the jurisdiction of the ICC. Directly embedded from the IMT Statute (Art. 6(c)), this provision raises – unnecessarily, in my opinion, vis à vis the already present elements that diversify crimes against humanity and serious violations – the material bar for categorizing discrimination as persecution. 

In this case, a way out from this impasse could be to refer to “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” (Art. 7(1)(k)). It is undeniable that the acts of discrimination enacted by the Taliban against Afghan women constitute harm in the terms contained in the Article and of the ILC’s 1996 Draft Code (Art. 18, Comm. 17). The “similar character” component is intended, according to the ILC, as acts that amount to the same gravity as other crimes listed in the precedent subparagraphs. It would seem that the set of inhumane acts that cause physical and mental suffering and violate the dignity of Afghan women could reach this threshold. Following a similar line of reasoning, Art. 7(1)(e) could be invoked as relevant, as it criminalizes imprisonment or the deprivation of physical liberty: the Taliban are reportedly confining women to their homes, stopped them from entering public places such as parks and gyms and, generally, from leaving their houses unaccompanied and without a valid reason. These acts might be tantamount to a deprivation of physical liberty under the above seen Article, and thus fulfill the requirements of Art. 7(1)(h).

Practical Consequences: What Possibilities for Prosecution?

As a practical consequence, the categorization as crimes against humanity implies not only that the situation could be referred to the ICC or to a hybrid tribunal, but also that it could trigger an investigation in various domestic courts on the basis of universal jurisdiction. La Manna, in a publication dedicated to criminal universal jurisdiction, notices how numerous members of the ICC, when integrating the Statute in their domestic penal codes, have also taken the opportunity to endow their judges with universal competence over the crimes covered by the Statute. Some legislations, such as the German and South African one, provide for absolute universal jurisdiction, while other still provide for universal jurisdiction over crimes within the jurisdiction of the court, but conditional upon a presence requirement, or upon approval by the Advocate General. This second category includes – among others – The Netherlands, Canada, New Zealand, Australia, and Kenya. Goldmann argues that this trend in implementation testifies the direction into which customary law on the matter of universal jurisdiction is evolving, and the ILC Final Report of the Working Group on the obligation to extradite or prosecute (aut dedere aut judicare) seems to point towards the same direction (B.1(9), B.2). All in all, it seems that an integration of the Statute providing for universal jurisdiction is the closest to the spirit of the ICC and to the Principle of Complementarity (Article 1) on which the Court is based. 

Alternatively, serious human rights violations, typically triggering the responsibility of a state rather than individuals, may come under the jurisdiction of the International Court of Justice (ICJ) or regional human rights courts. This jurisdiction can be established through the application of Universal Jurisdiction (UJ), by invoking the breach of erga omnes obligations. There has been an increasing trend of utilizing UJ to confer locus standi to non-directly injured states at the ICJ, a recent notable example being the case brought by Canada and the Netherlands s against Syria for violations of the Convention against Torture (CAT).

However, in the case at hand here, the lack of a multilateral treaty dedicated to crimes against humanity – vis à vis the Genocide Convention, which is at the base of the claim brought by The Gambia – seems to be able to pose some limits to this venture. Similarly, the idea of taking a State whose de facto government is a non-state terroristic group – whose delegations are not even allowed into the UN and in most embassies around the world – to the “highest” Court of the International system, seems to be highly unlikely from a political point of view, if not entirely impossible. When it comes to Regional Human Rights Courts, Afghanistan is not party to any, and most notably the Asian-Pacific region is the only region that has yet to establish such a human rights court. 

Finally, it is also necessary to acknowledge the discursive and symbolic value in configuring such crimes as “against humanity”, which is to be intended, as against “humanness”, rather than against “humankind”. This means that such crimes offend and injure not only the community of victims, but all human beings, by virtue of their essence as such. According to a similar rationality, while human rights violations are conceptualized as violations by a state against the individual rights of its citizens, I contend that the disaggregation of the Taliban government into individuals guilty of gross violations against the community of Afghan women living under their control is not only closer to the reality of the facts but might also have a greater “restorative” power from a transitional justice perspective.

Conclusion, or “About Humanness”

My conclusion is that the Taliban’s acts against Afghan women can – and ought to – be translated into the terms of crimes against humanity, and those of persecution specifically, and that this categorization – in addition to being the most precise – opens up several realistic possibilities for prosecution. As an international community and by virtue of our shared “humanness”, as defined above, we must make full and, above all, precise use of the tools provided by international law to address the situation of Afghan women. 

Lastly, I hold here that it is important to engage in a more nuanced academic discussion on this matter. In fact, the recent publication of the ICC’s Policy on the Crime of Gender Persecution highlights the significance of developing stronger frameworks against gender persecution. In this context, it is important to consider that introducing a new category, such as gender apartheid, alongside it and while these frameworks are still evolving might dilute both concepts. While focusing on advancing the notion of gender persecution, especially in situations short of armed conflict, may appear to be a smaller and less exciting step compared to developing a legal category ex novo, I believe that it still represents a necessary and substantive advancement.