Standing with Afghanistan: Women’s Rights and the Role of International Law

[Azadah Raz Mohammad is a Ph.D. candidate at the Melbourne Law School investigating the case for inclusion of an independent “crime of terrorism” in the Rome Statute of the International Criminal Court. Felicity Gerry is an international QC largely defending in serious and complex criminal trials and appeals, often with an international element; a Professor of Legal Practice at Deakin University, where she teaches a unit on Contemporary International Challenges including war crimes; and an Honorary Professor at Salford University. Karin M. Frodé is a Ph.D. candidate at Monash Law School and affiliate of the Castan Centre for Human Rights Law, where she explores the concept of solidarity in international human rights law.]

Generations of Afghan people have lived under different regimes and militia groups but one thing has remained a constant: the lack of peace. This article considers the challenges for the current peace process, particularly for women and the role of international law.

Recently, human rights defender Ms Samira Hamidi called on the international community for solidarity:

‘We need solidarity, we need the world to speak about this…If we strongly believe in humanity and human rights, we need to speak for [sic] the situation of the people in Afghanistan, especially for women.’

If the international community is to truly commit to ‘the international principles of accountability, justice and the rule of law’, as well as to solidarity with victims of violations of international human rights law and international humanitarian law (as set out in the ‘Van Boven/Bassiouni Principles’) then a major factor in the current peace process in Afghanistan is accountability for war crimes, including gross and systematic violations of human rights, perpetrated across generations. The right of victims to an effective remedy, including ‘bringing to justice the perpetrators of human rights violations’ is a key ingredient for a peaceful future, not only for victims to seek justice, but to empower current and future generations.

A fragile peace negotiation, shrinking foreign aid and military advances by the Taliban risk undermining the progress which has been made at domestic and international levels. This could have a disastrous human fallout, particularly for Afghan women and ethnic and religious minority groups.

The current situation

Recent progress in Afghanistan has included the ratification of many international human rights instruments, as well as the Geneva Conventions and the creation of the ongoing intra-Afghan peace negotiations between the Afghan Government.

However, the ongoing intra-Afghan peace negotiations between the Afghan Government and the Taliban have failed to meaningfully include victim groups, notably women, which is a key obstacle to lasting peace (discussed in detail here). These talks have been conducted amids continued and escalating violence against civilians (including women and children).

 In addition, the announcement by US President Biden of the complete withdrawal of American troops from Afghanistan by 31 August 2021 has seen Taliban troops advance across the country. The Taliban has also reimposed discriminatory restrictions particularly on women. In districts under their control, the Taliban lashed a woman for leaving home without an accompanying male relative and have also asked families to marry off one of their daughters with Taliban fighters. These developments have resulted in growing fears over the re-introduction of the burqa and serious discrimination against women.

There are real concerns that the peace negotiations will falter and the Taliban will regain control of Afghanistan. Such a turn of events will almost certainly see resistance at the domestic level to any form of accountability for past crimes committed by the Taliban. Current and future generations of Afghans, particularly Afghan women, are instead likely to suffer widespread and systematic human rights violations.

Investigation into alleged war crimes

Central to the ICC system of international criminal justice is the complementarity principle. Article 17(1)(a) of the ICC Statute stipulates that a case is inadmissible where it is being investigated or prosecuted by a State which has jurisdiction over it unless the State is “unwilling or unable genuinely” to carry out the investigation or prosecution. State Parties retain the primary responsibility to investigate and prosecute crimes falling under the jurisdiction of the Court. The ICC only deals with cases under very limited circumstances. This is to ensure accused persons are not subject to double jeopardy for the same alleged crime, to prioritise national sovereignty in the exercise of criminal prosecution including for the most serious of crimes, to limit those matters brought before the ICC but at the same time place a burden on states to be demonstrably willing and able to prosecute international crimes.

The armed conflict in Afghanistan is considered a non-international armed conflict under international humanitarian law (IHL). Afghanistan has been a state party to the Additional Protocol of the Geneva Conventions relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) since 10 November 2009. As a non-state armed group, the Taliban is also bound by Common Article 3 of the Geneva Conventions and customary international law.

There is evidence that the Taliban has violated these laws. Taliban commanders have, for example, publicly claimed responsibility for many deliberate attacks on civilians and the destruction of protected sites, including hospitals, schools and mosques.  Attacks have also involved forcibly displacing residents, looting and burning down their homes. Other violations include dispensing of collective punishment, continued discrimination on the basis of gender, religion and ethnicity, as well as torture, corporal punishment, and other forms of inhumane treatment of prisoners.

In 2006, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) initiated a preliminary examination of the situation in Afghanistan on a proprio motu basis. However, on 12 April 2019, the Pre-Trial Chamber (PTC) rejected the submissions made by the OTP to open a formal investigation concerning alleged crimes committed in Afghanistan since 2003. The decision acknowledged a reasonable basis to believe that the crimes within the jurisdiction of the Court may have been committed in Afghanistan. Nevertheless, it concluded that authorizing a formal investigation “would not serve the interest of justice”.

In March 2020, the ICC Appeals Chamber reinstated the PTC’s decision authorising the OTP to launch its formal investigation into the situation in Afghanistan. The Appeals Chamber’s decision states that if there is a reasonable basis to proceed with an investigation, and that the case falls within the jurisdiction of the Court, it shall authorize the commencement of the investigation.

Over a year since the authorisation for investigating the alleged war crimes and crimes against humanity taking place in Afghanistan since 2003, the investigation has still not started. At the same time, the government of Afghanistan has tried to prevent the initiation of an investigation by submitting a deferral request in March 2020 to the ICC that domestic courts are following and effectively investigating and prosecuting alleged crimes.  Although the ICC has not decided on the deferral request, in May 2021 a high-level Afghan delegation team led by Afghan Minister of Foreign Affairs,  Mohammad Hanif Atmar, visited the ICC and submitted 180 cases as evidence that the Afghan justice system is actively investigating the alleged crimes.

In light of recent developments, it is unclear how the ICC will proceed with its formal investigation in Afghanistan. Similarly, the government of Afghanistan does not appear to have initiated a credible investigation into the recent scale-up of attacks on civilians. In voicing her concern over the escalation of violence in the country, the Afghan Independent Human Rights Commission (AIHRC) Chairperson, Ms Shaharzad Akbar, has also noted that victims’ rights have ‘never been a priority for the international community and the Afghan State’.

The complementarity principle, whilst understandable, must not inhibit progress towards peace. The solution may well lie in an independent UN investigation.

Calls for a UN investigation into human rights violations

Targeted attacks on civilians have intensified in recent months. The attacks are usually directed against human rights defenders, women’s rights activists, women professionals, journalists, ethnic minority groups, students, health professionals, humanitarian workers and government officials. Recent attacks include the bombing of a girls’ high school in an ethnic minority neighbourhood killing 85 students, as well as a complex attack on a maternity ward that killed mothers, newborns and women in labour in the same Hazara neighbourhood.

In response to the attack on schoolgirls on 8 May 2021, escalation of civilian attacks and lack of progress in the peace negotiations, the AIHRC issued a press statement in May calling for urgent steps to be taken by all stakeholders, including the international community.

The appeal to the UN and its member states include calls for:

‘An expert and fully resourced independent team of United Nations (UN) investigators to carry out a fact-finding mission into the massacre and unclaimed targeted attacks on civilians.’

and

‘An international, inter-governmentally mandated Commission of Inquiry into Civilian Casualties.’

The statement also called on the Global North to ensure that mechanisms are in place for reparations, as well as documentation of court, tribunal and truth commission records and details of investigations into human rights violations.

On 1 July 2021, national and international human rights organisations addressed the UN High Commissioner for Human Rights in a joint and open letter, expressing support for the AIHRC’s call for investigation into the attacks. The letter acknowledges that the scale and nature of these attacks is beyond the capacity of the government of Afghanistan, the AIHRC or the United Nations Assistance Mission in Afghanistan to carry out an investigation.

Where to from here?

The recent escalation of violence, particularly towards women and girls, demonstrates the importance that peace negotiations continue and, as we have suggested elsewhere, should do so with meaningful participation of women. Commitments to women’s rights and the visibility of women in the peace process is a fundamental foundation for accountability and meaningful progress. If the international community does not commit to the principles and purposes of the United Nations to maintain peace and security and promote human rights, there is a real risk of disastrous human costs.

The UN and its member states have an opportunity to  follow the AIHRC’s call for investigations into human rights violations and at the very least set up mechanisms for the preservation of official records and commencement of investigations into crimes under international law.