On November 28, 2024, six State Parties, namely, Chile, Costa Rica, Spain, France, Luxembourg, and Mexico referred the Situation in the Islamic Republic of Afghanistan (Situation in Afghanistan) to the International Criminal Court (ICC). In the referral, the States Parties express their concern about the severe deterioration of the human rights situation in Afghanistan, especially for women and girls, and request the Office of the Prosecutor (OTP) to consider the crimes committed against women and girls after the Taliban takeover in 2021. In accordance with the Rome Statute of the ICC, a State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed.
In their submission to the ICC, the six State Parties quoted the reports produced by the United Nations, and in particular of Mr Richard Bennett, the UN Special Rapporteur on Afghanistan, mapping the dire situation of women and girls in the country. In his latest report, dated May 2024, Special Rapporteur Bennett found that “the Taliban’s institutionalized system of discrimination, segregation, disrespect for dignity and exclusion of women and girls constituted in and of itself a widespread and systematic attack on the entire civilian population of Afghanistan.” Special Rapporteur Bennett called upon States to support the recognition and codification of gender apartheid as a crime against humanity, and the recognition of the situation of women and girls in the country as such. In the meantime, as awaiting this codification, he called “upon prosecutors and investigators to consider whether the relative elasticity of ‘other inhumane acts’ may allow for facts underpinning as-yet-unrecognized crimes, including gender apartheid and forced marriage, to be adduced, thereby ensuring that the totality of harms of victims and survivors are rendered into the evidential and historical record.”
The submissions of the six State Parties concluded stating that: “The recent measures taken by the Taliban, including the enactment of the ‘Law on the Promotion of Virtue and Prevention of Vice’, which reinforces and expands existing discriminatory policies, such as mandatory dress codes under which women must completely cover their body, the segregation of men and women in public spaces, the prohibition of women from singing or speaking outside their homes, among others, show that the complete disregard for women’s dignity continues and that the de facto authorities will continue infringing upon women and girls’ fundamental rights in an attempt to erase them from existence.” They called upon the OTP to ensure that the situation of women and girls is given the attention it requires.
The Office of the Prosecutor issued a statement welcoming the referrals and confirming that “very considerable progress has already been made in the investigation of allegations of gender persecution in the Situation in Afghanistan, and [it soon will] be in a position to announce concrete results.”
The situation of women and girls in Afghanistan is without parallels and requires comprehensive responses, including legal responses to ensure justice and accountability. Earlier in September 2024, Australia, Canada, Germany, and the Kingdom of the Netherlands announced that they had formally taken steps to call on Afghanistan to cease its violations of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). This is the first and key step before officially filing proceedings with the International Court of Justice (ICJ), the principal judicial organ of the United Nations. Civil society organizations continue to collect data on such violations. Some also call upon the United Nations to establish a special mechanism to collect and preserve evidence of all human rights violations in the country. Justice and accountability are key to putting an end to the Taliban’s inhumane reign in Afghanistan. Justice and accountability are also key to reaffirming the human dignity of women and girls in Afghanistan – human dignity that continues to be denied by the Taliban with every decree, edict and law introduced over the last three years.