More than three years since the military takeover by Taliban in 2021, Afghanistan remains engulfed in a severe human rights crisis.
Extrajudicial killings, public executions, flogging in stadiums, and other forms of corporal punishment, arbitrary detentions, torture and disappearances of former government officials, members of the national security forces, judges, lawyers, human rights defenders, journalists, media workers, and more, and discrimination and marginalization of ethnic and religious communities have been taking place every day.
Half of the society’s body is disabled by the Taliban’s systematic and oppressive restrictions, which have stripped women and girls of their rights.
“I already feel like I’m living in a prison. With the new morality law of the Taliban that bans my face and voice, it makes my homeland a grave for me,” a woman from Afghanistan said.
The ongoing human rights crisis in Afghanistan needs a comprehensive mechanism to effectively address widespread abuses and identify perpetrators. Such a complementary mechanism must have the capacity to advance accountability and justice.
UN Special Rapporteur on the situation of human rights in Afghanistan
The United Nations Human Rights Council appointed Mr. Richard Bennett as Special Rapporteur in 2022 to monitor the human rights situation in Afghanistan after the military takeover by the Taliban.
He has been closely monitoring developments, including through his trips to Afghanistan and meetings with diverse groups of people—victims, survivors, former government officials, women and members of ethnic and religious communities. Mr. Bennett presented several reports on the situation in Afghanistan. Since his very first report, he has been reporting that the human rights situation is deteriorating and “the international community should pay particular attention to the calls…for accountability and justice.”
“The Taliban’s institutionalization of its system of oppression of women and girls, and the harms that it is continuing to entrench, should shock the conscience of humanity”, said Richard Bennett, UN Special Rapporteur on the situation of human rights in Afghanistan, in June 2024.
“These violations are so severe and extensive that they appear to form a widespread and systematic attack on a civilian population which may amount to crimes against humanity. This attack is not only ongoing, it is intensifying.” Mr. Bennett added, and he also urged an “all tools” approach to “challenge and dismantle the Taliban’s institutionalized system of gender oppression and to hold those responsible to account.”
However, on August 21, the Taliban barred him from entering Afghanistan. Without his access inside the country and dismantled institutions and courts, victims and survivors will experience detrimental consequences. Without the oversight of the Special Rapporteur on Afghanistan, it will cause challenges to documentation and make it difficult to address and improve the situation of human rights in the country.
The Special Rapporteur’s work has also been hampered by the ongoing liquidity crisis. This crisis has impacted the ability to carry out the Special Rapporteur’s work effectively.
“The dire human rights situation requires full resourcing of the Special Rapporteur’s work, including dedicated resources geared towards information-gathering and analysis. Such resources would also serve to strengthen the existing digital repository of information concerning human rights violations and abuses in accordance with the Special Rapporteur’s mandate,” he underlined in his recent report.
At the same time, technical and language barriers remain in terms of access to other relevant thematic special procedures mandate holders, by victims, survivors and their families.
The absence of adequate independent monitoring could lead to a further deterioration of human rights conditions, particularly for women, children, individuals belonging to ethnic and religious communities, and all those in vulnerable situations.
Momentum for Accountability: International Justice
In a first significant and legal step, Canada, Australia, Germany, and the Netherlands, along with 22 other countries, initiated a process that could lead to action before the International Court of Justice (ICJ).
This action involves holding the Taliban accountable for violations of its obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Afghanistan ratified CEDAW in 2003, making this legal challenge both justified and necessary.
This collective effort by these nations is a commendable act, aiming to address the severe human rights abuses Afghanistan’s women and girls continue to face. However, it remains crucial that women’s voices, perspectives and experiences are included in this process.
In addition, given the uncertain length and potential challenges in this process, a more immediate response is still needed.
The ICJ is different from the International Criminal Court (ICC), which would enable individual criminal responsibility. Still, despite the ongoing investigation by ICC’s Office of the Prosecutor, financial and technical limitations persist.
Extension of the Mandate of the Special Rapporteur on Afghanistan
On September 6, 90 national and international human rights organizations wrote an Open Letter to the Permanent Representatives of the Members and Observers of United Nations Human Rights Council to renew the mandate of UN Special Rapporteur for the situation of human rights in Afghanistan, additionally, to establish an independent international accountability mechanism and lastly, to ensure continuation of a dedicated space for women and girls with meaningful follow-up to the Special Rapporteur ‘s report.
This month, in its fifty-seventh regular session, the UN Human Rights Council in Geneva adopted a resolution unanimously, which extended the mandate of Special Rapporteur on Afghanistan for one year. The resolution requested him “to present a report to the Human Rights Council at its fifty-eighth session, including a separate study on the so-called ‘Law on propagation of virtue and prevention of vice’, to provide an oral update to the Council at its sixtieth session and to present a report to the General Assembly at its eightieth session, in accordance with their respective programmed of work.”
The resolution’s strength lies in the fact that it has laid the groundwork for next steps. Another significant point is the emphasis on: “the urgency of a prompt, independent and impartial review of or investigation into all alleged violations or abuses of human rights and violations of international humanitarian law to end impunity, ensure accountability through processes that are comprehensive, multidimensional, gender-responsive and victim-centered, apply a comprehensive approach to transitional justice and bring perpetrators to justice.” These are essential pillars through which we can eventually create a roadmap together for accountability.
It recognizes that “delivering justice and redress to victims, and accountability to perpetrators, of gross human rights violations and abuses and serious violations of international humanitarian law through all available processes is an essential pillar needed for long-term sustainable peace, development and reconciliation in Afghanistan and is necessary for re-establishing the rule of law, strengthening the institutional protection of human rights and preventing the continued recurrence of grave violations and abuses.”
However, the resolution remains without a new and comprehensive mechanism that the 90 human rights groups called for, and only “[recognizes] the need to strengthen existing mechanisms and to give consideration to ensuring the capacity for collecting, preserving and analyzing evidence of the most serious international crimes and violations of international law in a way that could be used to facilitate future accountability and transitional justice processes.”
South Africa said in their statement that “the draft acknowledges the need for the international community to ensure those responsible are held accountable. This includes the possibility of the establishment of an independent mechanism with a capacity for collecting, preserving and analyzing evidence, which would serve to complement the work of the Special Rapporteur whose mandate we are renewing.”
The Center for Human Rights Advocacy is an organization which was created to support victims who do not have a place to turn for redress in Afghanistan. Additionally, this organization is one of the 90 who asked for an independent international investigative and accountability mechanism for Afghanistan. The Center is hopeful that there are many steps we can still take to achieve accountability and justice for victims and survivors in Afghanistan.
“Hope endures for a change in approach by the UN Human Rights Council—one that places victims and survivors at the center. As the community of support expands, we call on the Member and Observer States to rise together and meaningfully contribute to justice and accountability,” a representative of the Center for Human Rights Advocacy said.
Gender Apartheid
On the other side, in New York, on October 9, 10, and 14, the Sixth Committee of the United Nations General Assembly met for three days and discussed the Draft Crimes Against Humanity Convention.
Since the military takeover of Afghanistan, the Taliban have systematically and in an institutionalized manner, violated and oppressed the rights of women and girls. National and international experts and human rights groups have described this situation as gender apartheid. Although “gender apartheid” is not explicitly included in international criminal law, the crime of apartheid is recognized under Article 7 of the Rome Statute as a crime against humanity. This includes inhumane acts committed “in the context of an institutionalized regime of systematic oppression and domination” by one group over another. Lawyers, leaders, activists and advocates started a campaign calling for the recognition of “legally enshrined systems of repression and dehumanization” as gender apartheid and for its codification as an international crime to help ensure accountability and justice, including for Afghanistan’s women and girls.
More than 80 countries co-sponsored a resolution led by Mexico and the Gambia to launch a negotiation process for a Crimes Against Humanity Convention. Such progress would present a critical opportunity to codify gender apartheid as a crime under international law, which would be of great importance for Afghanistan’s women and girls. Because if the negotiation proceeds, human rights groups and defenders can continue to advocate for its inclusion. And if this momentum is realized, it would allow cases of gender apartheid to be brought to national courts around the world. It would also give States an obligation to prevent worse from unfolding.
In the meantime, States, with the support of civil society organizations, should make it a priority to advance accountability for other relevant international crimes, such as gender persecution, in national courts by filing complaints based on universal jurisdiction, ensuring sufficient resources and awareness raising.
Recommendations for the Way Forward
A comprehensive gender-responsive mechanism is urgently needed to complement and support the mandate of the Special Rapporteur, other relevant mandate holders, treaty bodies, and UNAMA, the efforts towards progress before the ICJ, the investigation by the ICC’s Office of the Prosecutor and potential investigations by national authorities, and the advocacy for the recognition of gender apartheid and its codification as an international crime. Such a mechanism can serve to enhance the effectiveness of each ‘tool’ in the “all tools” approach.
Through this mechanism, the human rights issues, including violations and abuses of the rights of women and girls will effectively be addressed and victims and survivors will have a place to turn. This mechanism is essential, otherwise it will have only one message—which conveys the international community’s double standards towards Afghanistan, as it has responded differently to several other human rights crises and violations and abuses in other countries in the past.
Human rights defenders, groups and organizations must work harder and with a deeper commitment to document, gather evidence and support victims. We must find creative and effective strategies to unite and work together over the next few months ahead of the March Human Rights Council Session and pursue stronger advocacy for accountability and justice for Afghanistan. That way, each case will be ready for the moments to hold perpetrators to account at the ICC, national courts around the world, and future accountability efforts.
The author is an Afghan legal scholar whose identity cannot currently be revealed due to acute threats to their security.