The United Nations Human Rights Council’s 54th regular session started on Sep. 11 with an Interactive Dialogue with the Special Rapporteur on the Situation of Afghanistan. Richard Bennett, the U.N. Special Rapporteur on human rights in Afghanistan, has strongly condemned the human rights violations by the de facto regime in the country. He emphasized that these violations have severely impacted the rights, opportunities, and dignity of women and girls, calling on the Taliban to reverse their oppressive policies and allow women to work, run businesses, and access education. “Afghans deserve more. This is not the time for reticence, but to take decisive action to support those in need,” he said.

Therefore, after two years of human rights violations post-Taliban takeover, there is one question spinning in the air: what lies ahead?

The Human Rights Council can help ensure accountability for gender persecution and other systemic and widespread human rights violations and abuses by creating an independent investigatory mechanism to run parallel to the work of the Special Rapporteur. The International Criminal Court (ICC), through the Office of the Prosecutor (OTP), can also work towards accountability by prosecuting the crime against humanity of gender persecution in Afghanistan. While these efforts would require significant resources, they are important to protecting human rights in Afghanistan and around the globe.

The Need for an Investigative Mechanism

The core issues at stake are the rights and well-being of the people of Afghanistan, precisely the sorts of human rights that the Human Rights Council was established to protect. The dire human rights situation in Afghanistan has been well documented, especially for women and girls.

In 2022, the Human Rights Council expanded the mandate and resources of the Afghanistan Special Rapporteur, to include “fact-finding, legal analysis, forensics, the human rights of women and girls and of persons belonging to minorities, the right to education, torture and other cruel, inhuman or degrading treatment or punishment, and additional resources for children’s rights, translation, documentation, information- and evidence-gathering and preservation.” Such an expansion is not common, as country-specific Special Rapporteurs were initially established by the Council with the aim of monitoring, receiving, and responding to information; supporting civil society efforts; making recommendations; aiding in the implementation of human rights obligations; and reporting on human rights situations within particular nations. 

In fact, the mandates of the current country-specific Special Rapporteurs do not encompass the capacity or resources that align with the level of groups, teams, or international commissions of human rights experts, independent international commissions of inquiry, independent fact-finding missions, or independent investigative mechanisms established by the Council. This is an indicator that the situation on the ground is dire and that immediate actions are needed. 

Indeed, specific access to the Special Rapporteur in Afghanistan is a welcome development for the situation on the ground. However, the mandate of the Special Rapporteur on the situation of human rights in Afghanistan encompasses functions that are not typical for country-specific Special Rapporteurs, which might pose technical and logistical issues (e.g., to put it simply, both the hiring process and personnel training demand a significant amount of time). Nonetheless, the establishment of an independent investigative mechanism for Afghanistan could address this problem as it would be equipped with adequate staff, training, guidance, expertise, tools, and support. 

For instance, in Myanmar’s situation, the Special Rapporteur, during his mandate, proposed the creation of an “accountability mechanism” through a concept note. Subsequently, the Council established an Independent Investigative Mechanism for Myanmar, to “collect, consolidate, preserve and analyse evidence of the most serious international crimes and violations of international law committed in Myanmar.” Afghanistan could greatly benefit from the Council adopting a comparable parallel mechanism.

Hence, it’s important to recognize that a parallel, independent investigative mechanism would bring unique and valuable contributions. This mechanism could, for example, facilitate effective, unbiased documentation. Given the limited access to locations where violations occur and the absence of avenues for victims to seek recourse, the urgency is underscored. In other words, an investigative mechanism would enable well-informed international responses based on credible information and analysis. Such a mechanism would possess essential resources, including a proficient team, training, guidance, expertise, tools, and support. It would also foster greater coherence within the human rights framework by providing an opportunity for enhanced coordination and alignment with the efforts of mandate holders and the ICC. 

Adding Gender Persecution to the ICC Investigation

Considering that Afghanistan is a signatory to the Rome Statute and an ongoing investigation by the ICC is being conducted regarding the situation in Afghanistan, the Taliban’s actions could qualify as the crime against humanity of gender persecution. At their core, as the ICC’s gender persecution policy notes, gender-based crimes are used by perpetrators to control or penalize individuals who are perceived to transgress gender criteria that define “accepted” forms of gender expression. These criteria often regulate every aspect of life, determining the extent of individuals’ freedom of movement, their reproductive options, who they can marry, where they can work, how they can dress, and whether they are simply allowed to exist. Therefore, the act of gender persecution is in violation of fundamental human rights. 

Based on the available evidence, it appears that the Taliban’s severe human rights violations meet the criteria for the crime against humanity of gender persecution. Hence, the Taliban’s actions, together with previous discriminatory measures against women and girls imposed by the Taliban, meet the criteria for gender persecution because: i) the Taliban have violated principles of international law by severely depriving one or more fundamental human rights, such as the right of education and the right to work; ii) the Taliban have explicitly and intentionally targeted women and girls of Afghanistan because of their gender, which is, for instance, demonstrated by the banning of women and girls from education beyond the primary level; and iii) the Taliban’s actions and systematic violations of women and girls’ human rights is connected with other acts under Article 7(1) of the Statute, such as torture

The Soft International Response

In the wake of the military takeover of Afghanistan by the Taliban, the Human Rights Council has responded with a series of sessions, debates, and dialogues aimed at addressing the concerning human rights situation. The actions taken by the international community so far have been characterized by a somewhat softer approach, with hopes that the Taliban’s behaviour might improve over time. Unfortunately, over two years since their takeover, the Taliban have not fulfilled their promises and have instead continued to perpetrate systematic human rights violations and abuses.

During the last enhanced interactive dialogue on the situation of human rights in Afghanistan, with a focus on the rights of women and girls, Human Rights Council members expressed strong condemnation for the systematic discrimination against women and girls by theTaliban. They also raised serious concerns about the use of cruel and degrading punishments such as stoning, flogging, and wall burials, which they argued violated Afghanistan’s international legal obligations. They also denounced all forms of violence against women and girls, including sexual and gender-based violence. The Taliban were called upon to reopen schools and allow girls to receive an education. They were urged to immediately reverse any decisions that negatively impacted the human rights of women and girls. 

The state of human rights for women and girls in Afghanistan demands the greater actions described above.

The Dire Situation of Women and Girls’ Rights  in Afghanistan

Since Aug. 15, 2021, following the Taliban’s military takeover of Kabul, the human rights situation of women and girls in Afghanistan significantly worsened, despite the Taliban’s initial promise to respect women’s and girls’ rights. Upon seizing power, the Taliban closed down the Ministry of Women’s Affairs and established the Ministry for the Propagation of Virtue and Prevention of Vice, which imposed oppressive and harmful regulations concerning the rights of women and girls. Today, Afghanistan is the only country in the world where girls are denied education beyond primary level. 

Over the past two years, there has been an escalation of restrictive policies and behaviors towards women. The Taliban have enacted extremely severe gender policies and justified them with the claim that the Sharia supports such measures, as do the traditional customs of Afghanistan. As illustrated in the recent Report of the Special Rapporteur on the situation of human rights in Afghanistan and the Working Group on discrimination against women and girls, one of the most illustrative examples of the systematic discrimination is the relentless issuance of edicts, decrees, declarations and directives restricting their rights, including their freedom of movement, attire and behaviour, and their access to education, work, health and justice. Between September 2021 and May 2023, more than 50 edicts were issued, including: 

  • Sep. 18, 2021: education restricted for girls beyond grade six.
  • Dec. 23, 2021: instructing drivers (men) not to accept to drive women without “proper hijab” or to women without a maharam for travel more than 72 kilometers.
  • Mar. 27, 2022: limiting access of women and girls to parks, banning women from boarding domestic and international flights without a maharam.
  • May 7, 2022: requiring women to observe “proper hijab”, preferably by wearing a chadari (a non-fitted black garment with face covering) or not leaving the home without a reason (“the first and best form of observing hijab”). 
  • May 21, 2022: female television presenters required to cover their face.
  • June 1, 2022: all girls in fourth to sixth grades required to cover face while commuting to school. 
  • Aug. 23, 2022: women government workers asked to stay home from work.
  • Nov. 10, 2022: women prohibited from using gyms. 
  • Nov. 11, 2022: women prohibited from entering parks in Kabul; a written announcement later published in Faryab banned access of women to public baths, gyms, sports clubs and amusement parks. 
  • Dec. 20, 2022: right of women to attend university “suspended.” 
  • Dec. 22, 2022: all forms of education beyond grade 6 banned for girls.
  • Dec. 24, 2022: right of women to work with national and international non-government organizations “suspended.”
  • Apr. 4, 2023: Afghan women banned from working in the United Nations

The recent series of edicts is setting an alarming record for repression. The bans on beauty salons represent an unprecedented level of restriction and control. Furthermore, the directive targeting international NGOs’ initiatives to educate out-of-school children is deeply troubling. Education is a fundamental human right and a crucial pathway to breaking cycles of poverty and fostering global development. By inhibiting these efforts, this directive not only denies children their right to learn but also hinders progress on a broader scale. In the joint report to the Human Rights Council, Bennett and Dorothy Estrada-Tanck, Chair of the Working Group on discrimination against women and girls, not only said that the  situation of women and girls in Afghanistan was the worst globally, but also asserted that, “the blatant violations to the fundamental right to have access to quality education will have lifelong consequences regarding not only employment opportunities but also access to basic services such as health care.”

Two years of bans under the Taliban regime mark a concerning trend towards limiting individual freedoms, undermining gender equality and access to education. It is crucial for the international community to recognize and address the implications of this situation. As advocates for human rights and justice, the international community has the responsibility to ensure that these regressive actions are not normalized. Regrettably, the steps taken so far by the international community have fallen considerably short of effectively addressing the challenges at hand. 

In conclusion, the OTP of the ICC has the responsibility to ensure that its investigation and prosecutions comprehensively cover cases involving alleged crimes committed by the Taliban against women and girls, in accordance with the Policy on Gender Persecution. Furthermore, given that gender persecution represents a convergence of the human rights and international criminal law domains, it seems that the HRC has a pivotal role in serving as a link between these two spheres.

IMAGE: Afghan girls read at a library in Jalalabad on August 30, 2023. (Photo by SHAFIULLAH KAKAR/AFP via Getty Images)