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Afghanistan: An ongoing and urgent call for accountability

ISHR and partners continue to call for meaningful action by States at the UN to advance accountability for past and ongoing crimes under international law.

Afghan women have been key drivers of change, at the forefront of progress in Afghanistan, advancing gender equality, human rights, and inclusive development. 

However, since the Taliban takeover in August 2021, the situation in Afghanistan has deteriorated dramatically, particularly for women and girls, as well as ethnic and religious minorities. They face arbitrary restrictions in every area of their lives, being deprived of the fundamental rights to non-discrimination, education, work, public participation, health, and freedom of expression, association and assembly as previous protections are dismantled. With the recent Vice and Virtue Law, the Taliban have effectively erased women and girls from public life, with increasingly draconian restrictions also applying to women and girls in the home and private sphere. The situation has appropriately been described as one of unprecedented gender apartheid. The Taliban have also recently barred the UN Special Procedure from the country.

The deepening human rights and humanitarian crisis in Afghanistan demonstrates that it is past time to ensure accountability for violations of international human rights law and humanitarian law, requiring international action as avenues for justice within the country are “virtually non-existent,” following decades of impunity for crimes committed by a range of actors. The pursuit of justice by States at the UN for these crimes under international law and gross human rights violations and abuses demands a multifaceted approach to enable access to justice, truth and reparation for all victims.

 

What do we want?

We want to advance justice, accountability and reparation for past and ongoing serious human rights violations and abuses, some of which may amount to crimes under international law, including crimes against humanity and war crimes. 

Implementing a multifaceted approach holds the potential to deliver a more comprehensive form of justice and accountability for people in Afghanistan, particularly women and girls, for the myriad violations they have endured. 

 

What is the next urgent step towards accountability?

Establish a United Nations investigative mechanism

Together with Afghan, regional and international organisations, ISHR appealed to the Human Rights Council to establish an independent investigative mechanism, complementary to the mandate of the Special Rapporteur on the situation of human rights in Afghanistan. The mandate must focus on advancing justice, accountability and reparation for past and ongoing grave human rights violations and abuses, some of which may amount to crimes against humanity and war crimes, including gender persecution against women and girls.

In the past three years, the Taliban have completely reversed measures previously adopted to enhance the promotion and protection of human rights in Afghanistan. The Taliban, as the de facto authority, have spurned Afghanistan’s international obligations and have continued to introduce arbitrary, unlawful and wide-ranging restrictions on human rights.
73 Afghan organisations and 17 international organisations, including ISHR

A robust investigative and accountability mechanism should have a mandate to: 

  1. Investigate and establish facts and root causes of past and ongoing crimes under international law and serious violations and abuses, including any gendered dimensions of such violations and abuses; 
  2. Collect, analyse, consolidate and preserve evidence of such violations and abuses to support future prosecutions; 
  3. Identify suspected perpetrators of such violations and abuses;
  4. Make specific recommendations on advancing accountability and enhancing access to justice for victims; and 
  5. Support relevant judicial and other proceedings.

ISHR, along with partners, has published a Q & A setting out the specificities of such a mechanism, which answers the following questions:

  • What mandate would this mechanism have?
  • How would this complement the work of the UN Special Rapporteur on Afghanistan? 
  • How would such a mechanism’s work advance accountability?
  • Why is it important for the mechanism to be able to investigate past as well as ongoing crimes under international law committed in Afghanistan?
Read the Q&A

Read the Q&A

This document provides further details of the mandate a comprehensive accountabilty mechanism on Afghanistan should have, its added value, and how it would build on and complement existing efforts.

Read the full Q&A

How are we working towards accountability in Afghanistan?

ISHR, along with Afghan human rights defenders, including women defenders and partners, has taken the following steps:

  1. We have raised international awareness of the situation in Afghanistan, including with various UN mechanisms and bodies, focusing on the demands of Afghan women human rights defenders (WHRDs) for stronger accountability and for platforms at the Human Rights Council where they can concretely participate to expose the reality of their human rights situation. See more here.
  2. We are conducting ongoing training and capacity building for Afghan women human rights defenders and supporting their engagement with UN human rights mechanisms. 
  3. We are pressuring States and the UN to take action to address this pervasive impunity, and support justice, truth and reparation for victims in Afghanistan and work towards accountability for international crimes. This includes:
    1. engaging with existing mechanisms and bodies to make recommendations and enhance pressure for accountability, such as the treaty bodies, the Universal Periodic Review and Special Procedures, in particular the Special Rapporteur on Afghanistan; and
    2. calling for the Human Rights Council to establish an independent investigative mechanism.  
  4. We are calling on States to recognise gender apartheid as a crime against humanity, and have conducted legal research and advocacy on the crime of gender apartheid, and successfully encouraged the Special Rapporteur on Afghanistan and the Working Group on discrimination against women and girls in law and practice and CEDAW to recognise the situation in Afghanistan as amounting to gender apartheid and to call on the international community to recognise and prosecute this crime.

 

Why are we talking about gender apartheid?

Within Afghanistan, gender persecution is taking place within an institutionalised system of gender-based exclusion, segregation and oppression; meaning that the people in Afghanistan, particularly women and girls, are living under a regime of gender apartheid. This framing sas been supported by the UN Secretary General Antonio Guterres, the Special Rapporteur on Afghanistan and the Working Group on discrimination against women and girls.

ISHR joins the call by women human rights defenders from Afghanistan, activists and legal experts for the international community to recognise, codify and prosecute gender apartheid in Afghanistan as a crime under international law. 

Find out more about the global campaign

All you need to know about gender apartheid

Gender apartheid has been articulated as the systematic segregation of persons based on their gender imposed through law and policy as a governing ideology. In this construct, segregation may be accompanied by the total exclusion of women as is occurring in Taliban Afghanistan, the paradigmatic example of gender apartheid. 

Adapted from the international law on racial apartheid, “gender apartheid” emphasises that discrimination has been made by the system of governance itself, such that the aim of government and public policy is to discriminate and oppress.

Through their policies, the de facto authorities in Afghanistan are practising systematic and pervasive discrimination against and oppression of women:

Education: Women and girls are excluded from university and secondary schools. The Taliban are the only governing group in the world to have systematically excluded women and girls from education both in the 21st century.

Employment: Women have been banned from working for national and international non-governmental organisations, and have been dismissed from jobs with the government.

Health: The Taliban have banned birth control and are enforcing the ban by threatening pharmacies and midwives.

Freedom of movement: The Taliban have banned driver’s licences for women, travel longer than 45 miles without a male legal guardian (mahram), and solo taxi rides.

Recreation: Women have been banned from parks, gyms, public baths, and playing sports.

Legal: Taliban spokesmen have suggested dismantling the legal structure of women’s rights, including by abrogating the 2004 constitution and the 2009 Elimination of Violence against Women Law, and their policies represent a de facto rejection of these standards.

Rights: Women engaging in protests against these gender apartheid policies, and sometimes members of their families, face arrest, torture and ill-treatment, and incommunicado detention.

“Gender apartheid is not merely a theoretical possibility or legal construct, but a real threat and lived reality for millions of women and girls around the world – a reality that is currently not explicitly codified in international law,” Working Group on Discrimination Against Women and Girls, 20 February 2024

“In Afghanistan, the Taliban continue, aggressively, to seek to erase half of the population from everyday life. Such a system of gender apartheid ruins the development potential of the country.” – UN High Commissioner for Human Rights Volker Türk, 24 May 2023.

“We recommend that the international community develop further normative standards and tools to address the broader phenomenon of gender apartheid as an institutionalised system of discrimination, segregation, humiliation and exclusion of women and girls.” – UN Special Rapporteur on Afghanistan and the Working Group on Discrimination Against Women in Law and Practice, 5 May 2023. 

“In Afghanistan, we are rightly concerned about humanitarian aid and frozen assets, but the consequences of a new gender apartheid include women’s employment plummeting sharply since the Taliban takeover.” – UN Women Executive Director Sima Bahous, 8 March 2023.

“As tomorrow you will hold yet another meeting on Afghanistan, I ask you to speak and act forcefully against this gender apartheid and find ways to support Afghan women and girls in their darkest moment.” – UN Women Executive Director Sima Bahous, 7 March 2023.

“The cumulative effect of the [Taliban] restrictions on women and girls has a devastating long term impact on the whole population and it is tantamount to gender apartheid.” – UN Special Rapporteur on the human rights situation in Afghanistan Richard Bennett, 6 March 2023. 

“In Afghanistan, unprecedented, systemic attacks on women’s and girls’ rights and the flouting of international obligations are creating gender-based apartheid.” – UN Secretary General Antonio Guterres, 12 January 2023. 

Apartheid is an illegal situation to be ended, not an object for “constructive engagement.” The apartheid framework underscores the legal obligations of other states to take action to end this illegal situation and not be complicit, rather than simply making statements denouncing it.

Using an apartheid framework implicates not only the immediate perpetrators but also the international obligations of all states and international actors that interact with them. 

Under apartheid law, other States have to take effective measures to suppress apartheid, and have heightened obligations to implement relevant UN resolutions. States must refrain from any action that implies recognition of, or lends support or assistance to, the commission of apartheid. The apartheid framing puts pressure on governments, international organisations, and transnational corporations to avoid engaging with the Taliban in ways that show tolerance for and help perpetuate grave abuses.

The gender apartheid framework complements and can strengthen efforts to prosecute gender persecution at the ICC. It offers a more complete description of country situations like Taliban-controlled Afghanistan.

Just as international law prohibits both racial persecution and racial apartheid, it should do the same with regard to gender persecution and gender apartheid. The persecution approach alone does not adequately implicate the institutionalised and ideological nature of the abuses in question or reflect on the responsibilities of other international actors to respond appropriately.

The definition of persecution helpfully stresses the severity and the discriminatory motivation that characterises Taliban policy toward women. According to Article 7(2)(g) of the Rome Statute, “‘[p]ersecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” Like any crime against humanity, gender persecution occurs within the context of a widespread or systematic attack against a civilian population when there is a “policy to commit such attack.” Unlike other crimes against humanity, persecution requires an additional threshold, it must happen “in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”.

However, the definition of apartheid in Article 7(2)(h) much more fully captures situations like Taliban Afghanistan if one substitutes “gender” for “race” in the following passage: “inhumane acts (…) committed in the context of an institutionalised regime of systematic oppression and domination by one [gender] group over any other [gender] group or groups and committed with the intention of maintaining that regime.” This underscores that domination of women is a core element of the group’s ideology and of its governance.

Hence, the apartheid framework recognises that systemic and institutional positive change will only be possible with a consistent, concerted, principled international response.

Do you want to know more?

Given the importance of a multifaceted coordinated approach to accountability, other stakeholders are also engaging with other mechanisms seeking accountability in Afghanistan. When employed strategically and in tandem, these mechanisms can mutually reinforce one another, bolstering legal principles, evidence collection, and international attention to the gravity of the situation. A Human Rights Council mandated accountability mechanism could investigate, collect, analyse, consolidate and preserve evidence to a standard that can be admitted in court and support the following accountability avenues.

The referral of disputes involving Afghanistan before the International Court of Justice (ICJ): Australia, Canada, Germany, and the Netherlands announced their intention to take Afghanistan to the ICJ, marking the first time the ICJ has been used by a State to challenge another under the CEDAW for gender discrimination, offering a significant opportunity to reinforce the principle of gender equality under international law in Afghanistan and globally.

Evidence or other information collected could also be made available to national investigators and prosecutors exercising universal and other forms of extraterritorial jurisdiction for crimes under international law and jurisdiction over crimes committed by national military personnel and others

The Security Council renewed the mandate of the United Nations Assistance Mission in Afghanistan (UNAMA) in March 2024 for an additional year. UNAMA is a UN Special Political Mission tasked with assisting the people of Afghanistan that was established in March 2002 by Security Council Resolution 1401.