In a world first, The Hague wants to arrest Taliban leaders over their treatment of women – what happens next?
- Written by: Yvonne Breitwieser-Faria, Lecturer in Criminal Law and International Law, Curtin University
Earlier this month, the International Criminal Court (ICC) issued arrest warrants against the Taliban leadership in Afghanistan.
The court’s Pre-Trial Chamber II cited reasonable grounds for believing supreme leader Haibatullah Akhundzada and chief justice Abdul Hakim Haqqani were guilty of “ordering, inducing or soliciting the crime against humanity of persecution on gender grounds.”
The warrants – the first ever on charges of gender persecution – are being hailed as an “important vindication and acknowledgement of the rights of Afghan women and girls”.
But will they improve the plight of women and girls in Afghanistan, given the Taliban does not recognise the court or its jurisdiction?
The signs are not good with the Taliban denying the allegations and condemning the warrants as a “clear act of hostility [and an] insult to the beliefs of Muslims around the world”.
Erased from public life
Strict rules and prohibitions have been imposed on the Afghan people since the Taliban returned to power in August 2021.
Women and girls have been singled out for even worse treatment by reason of their gender.
According the warrants, the Taliban has
severely deprived, through decrees and edicts, girls and women of the rights to education, privacy and family life and the freedoms of movement, expression, thought, conscience and religion.
Women are banned from public places and girls from attending school once they turn 12.
Zahra Nader is the editor-in-chief of newsroom Zan Times which investigates human rights violations in Afghanistan. She says Afghan women and girls are being silenced, restricted and stripped of their basic human rights.
It is this discriminatory system of control of woman and girls in Afghanistan that is at the core of the court’s prosecution.
The warrants also accuse the Taliban of persecuting
other persons who don’t conform with the Taliban’s ideological expectations of gender, gender identity or expression; and on political grounds against persons perceived as ‘allies of girls and women.
This is the first time an international tribunal or court has confirmed crimes against humanity involving LGBTQIA+ victims. This marks an important milestone in the protection of sexual minorities under international law.
Crimes against humanity
International law clearly spells put the offences which constitute crimes against humanity.
The aim is to protect civilians from serious and widespread attacks on their fundamental rights. Different definitions of crimes against humanity have been included in the statutes of a handful of international tribunals and courts.
The definition under the Rome Statute of the International Criminal Court is the most comprehensive. It includes severe deprivation of personal liberty, murder, enslavement, rape, torture, forced deportation or apartheid.
Specifically, the Taliban leaders are accused under Article 7(1)(h) of the Rome Statute, which states:
Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender […] or other grounds that are universally recognised as impermissible under international law.
Physical and direct violence is not necessary for persecution on “gender […] grounds” to be established. Systemic and institutionalised forms of harm, which can be the imposition of discriminatory societal norms, are sufficient.
Women and girls are often disproportionately affected by Taliban policies and rules. But proving gender-based crimes have occurred is not enough. Discriminatory intent must also be established.
The Taliban has been open about its religious beliefs and interpretations, suggesting a clear intention to persecute on the grounds of gender.
Not just symbolic
As with other cases, the court relies on the cooperation of states to execute and surrender those accused.
The interim government in Kabul which was formed after the US-led invasion in 2001 became a party to the Rome Statute in 2003. Afghanistan remains legally obligated to prosecute perpetrators of these crimes – it must accept the Court’s jurisdiction in the matter.
The Purple Saturdays Movement, an Afghan women-led protest group, is warning the arrest warrants must be more than just symbolic. Any failure to prosecute would likely result in an escalation of human rights violations:
The Taliban has historically responded to international pressure not with reform, but by intensifying such repressive policies.
Hopeful step
It is important to note the strict policies and widespread abuses targeting women and girls in Afghanistan are ongoing, despite the intervention by the International Criminal Court.
The court’s Office of the Prosecutor is stressing its commitment to pursuing “effective legal pathways” to bring the Taliban leadership to account. The Afghan Women’s Movement in Exile wants an independent international judicial committee established to monitor and accelerate the legal process.
It is not yet clear if the warrants will actually lead to arrest and prosecution in The Hague. But we know this is possible. A prime example being the the arrest earlier this year of former Philippines President Rodrigo Duterte.
At the very least, the arrests warrants are a hopeful step towards accountability for the Taliban and justice for the women and girls of Afghanistan.
Authors: Yvonne Breitwieser-Faria, Lecturer in Criminal Law and International Law, Curtin University
