Making the Case for Prosecuting the Taliban for Crimes Against Humanity and Gender Apartheid in the ICC for the Unlawful Imprisonment of Afghan Women and Girls
- Kimberley Motley
- Jul 1, 2024
- 20 min read
Updated: Jun 27
Since 15 August 2021, the Taliban Government continues to suppress the progression of women’s basic human rights in Afghanistan, resulting in their systematic oppression as a result of state sponsored crimes against humanity which has also encompassed gender apartheid. Gender apartheid has been defined as the economic and social sexual discrimination against individuals because of their gender or sex. This manifests itself as a system enforced by using either physical or legal practices to relegate individuals based on their gender to subordinate positions.[1] While I certainly believe that the de facto government is engaged in gender apartheid on a daily basis against all women and girls in Afghanistan, the focus of this paper shall be on arguing the legal case that can specifically be brought against the Minister of Justice and the Minister of Interior of their committing crimes against humanity to the over two hundred and seventy women and girls detained in Pul-e-Charkhi prison. These women and girls are victims of gender apartheid, torture, imprisonment, sexual slavery, and other inhumane acts, intentionally causing great suffering as well as serious injury to their bodily and mental health, all in violation of the Rome Statute Article 7.
In October 2023, I visited Pul-e-Charkhi prison in Afghanistan and talked with numerous guards, administrators, detainees, and children. I have worked as the only foreign attorney litigating cases in Afghanistan since 2008. As part of this work, for over 15 years I would routinely visit the prisons and have litigated numerous cases in both criminal and civil courts, particularly for women and girls. Certainly, before the Taliban takeover of Afghanistan’s government on 15 August 2021, the legal system was far from perfect in meeting conventional rule of law standards. However, there was at least some attempt in following a system where women were treated more humanely, and certain basic standards of human rights were adhered to. Between 2022 and 2023, however, Afghanistan was deemed one of the countries with the largest decline in human rights.[2]
Since the 2021 takeover of the government, the legal system and the landscape of Afghanistan has dramatically changed, and things have gotten dangerously worse for women and girls—especially those in prison. Due in large part to the conservative cultural political ideologies and the uniquely conservative and inflexible doctrines imparted by the zealots of the de facto government, who have deprived women of their basic human rights, the country is one of the worst for women.[3] Since 2021, through over sixty-five decrees the Taliban has cemented and normalized its gender-apartheid practices, by denying females the right to secondary education, forbidding them to work in offices, denying them the right to travel alone without a ‘suitable’ mahram, banning them from working for international NGOs, and invalidating thousands of legally validated divorces, often due to abuse by their husbands.[4] According to the Islamic Republic of Afghanistan’s Constitution, Article 22 notes that:
any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden. The citizens of Afghanistan, man and woman, have equal rights and duties before the law.[5]
Furthermore, the Convention on the Elimination of All Forms of Discrimination Against Women, which Afghanistan remains a state party to, obliges:
State parties to respect, protect, and fulfill women’s rights to non-discrimination and the enjoyment of de jure and de facto equality.[6]
