UN Analytical Report: ICJ Can Access Evidence and Victims of the Taliban’s Crimes Directly

By: Amin Kawa

Amnesty International and the International Commission of Jurists (ICJ) have urged the International Criminal Court (ICC) to investigate the Taliban’s discriminatory policies against women as “crimes against humanity.” The report reveals that the Taliban have systematically and extensively violated human rights, particularly those of women, in the past two years. In response to the report, the United Nations has released an analytical report titled “Gender Persecution in Afghanistan: Could it come under the ICC’s Afghanistan investigation?” The report confirms the availability of evidence, including factual, mental, and contextual elements, to the general public. The perpetrators of these allegations can be identified, enabling the ICC to directly engage with victims and eyewitnesses of Taliban’s crimes. Simultaneously, the International Court of Justice (ICJ) can easily access ample documentation related to the case.

On Monday, May 29, the United Nations released an analytical report affirming that the International Criminal Court (ICC) has direct access to victims and witnesses of the Taliban’s crimes against humanity. The report, which features insights from senior United Nations experts, highlights the Taliban’s violations of women’s and girls’ rights in areas such as education, employment, freedom, travel, health, bodily integrity, decision-making, peaceful assembly, and access to justice. Through an examination of international law, the report evaluates the Taliban’s treatment of women and investigates whether their imposed restrictions fall within the jurisdiction of the International Criminal Court (ICC).

Necessary Evidence and Documents for the International Criminal Court (ICC)

In this analytical report submitted to the International Criminal Court (ICC), the United Nations underscores that the general public has access to evidence containing the necessary elements (factual, mental, and contextual). The report identifies the perpetrators of these allegations and emphasizes the accessibility of victims and eyewitnesses. Amnesty International and the International Commission of Jurists (ICJ) previously stated that crimes against humanity, including the denial of women’s education, torture, imprisonment, suppression of peaceful protests, and enforced disappearances of protesting women and girls, warrant investigation. These organizations have urged the International Criminal Court (ICC) to examine this case.

Can gender-based sexual violence be investigated as a crime against humanity?

Amnesty International and the International Commission of Jurists (ICJ) previously urged the International Criminal Court (ICC) to investigate the sexual harassment and abuse committed by the Taliban in Afghanistan as potential crimes against humanity. In this analytical report, the United Nations declares, “The Taliban have dismantled the protective framework and support system for those escaping domestic violence, rendering women and girls utterly defenseless. They have enforced restrictive laws and detained women and girls on charges of moral offenses.” The analysis highlights that the Taliban’s actions have led to a rise in child marriages, forced marriages, and gender-based violence. Furthermore, the report reveals that women participating in peaceful protests are subjected to threats, harassment, arbitrary detention, and torture by the Taliban.

UN experts have provided their rationale, citing Article 7 of the Rome Statute, which identifies acts of torture and cruel treatment against specific groups or populations based on various grounds, such as political, racial, national, ethnic, cultural, religious, gender, or others, as globally illegal under international law. These experts argue that the Taliban intentionally and severely violate fundamental rights through sexual harassment, targeting individuals based on their collective identity, thus contravening international law. The report emphasizes the occurrence of sexual abuse and violence, as well as slavery, genocide, forced displacement, imprisonment, and other grave infringements on bodily autonomy, which run counter to the fundamental principles of international law. The acts detailed in the report encompass torture, rape, enforced disappearances, apartheid, and other forms of inhumane treatment.

Can deprivation of fundamental rights be considered a crime against humanity?

In the UN analytical report, fundamental rights are defined and violations of these rights are examined as crimes against humanity. The report states, “The right: to life; to be free from torture or other inhumane or degrading treatment or punishments; to be free from slavery or the slave trade, servitude and retroactive application of penal law; to freedom of assembly, opinion, expression, movement, and religion, including the right to be free from religion; rights to equality, dignity, bodily integrity, family, privacy, security, education, employment, property, political or cultural participation, to access to justice or health care. Human rights violations can constitute a severe deprivation of fundamental rights on their own or when considered cumulatively.” According to the argument in this report, systematic or widespread violations and severe deprivation of individuals’ rights contrary to international laws are crimes, and when they are based on gender, they can be pursued and investigated by the International Criminal Court (ICC). The report explains, “According to international law, crimes against humanity are part of the rules of international law; that is, principles that form international legal norms cannot be set aside or legislated by domestic laws. Another example is torture, which is illegal under all circumstances.”

Can the Taliban’s policy towards women and girls be considered sexual harassment?

The report argues for the examination of the Taliban’s discriminatory prohibitions on women and girls under Article 7 of the Rome Statute and other relevant documents. It emphasizes the importance of investigating the intentional nature of sexual harassment and abuse, referred to as the mental element. Another crucial aspect in the analysis of gender-based harassment is the severe deprivation of individuals’ fundamental rights. According to the report, such severe deprivations are contrary to international laws. United Nations experts have conducted an analysis stating that gender is a tangible element, and the Taliban’s violation of it is systematic and widespread.

What does international law say about the right to work and political participation?

Multiple international human rights documents, including the Universal Declaration of Human Rights, the Convention on the Political Rights of Women, the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Discrimination against Women (which Afghanistan has signed), emphasize political participation as a fundamental right, particularly for women. This analytical report argues, based on the Convention on the Elimination of All Forms of Discrimination against Women, that there is abundant evidence and documentation to identify the Taliban as perpetrators of “crimes against humanity.”

What does “Mental element; perpetrating of the actual element by knowledge and intent” mean?

According to the report, the issuing authorities of discriminatory regulations and provisions must possess an awareness of the content of these orders and intend to enforce them, constituting the mental element. Moreover, these authorities should be cognizant that these orders violate international laws and norms, which uphold fundamental rights. The report’s analyst further highlights that the Taliban holds the belief that women should be treated differently from men, particularly due to their role as political or religious leaders conflicting with divine law, relegating them to the home. The United Nations analysis attributes women’s confinement to the decree of Abdul Hakim Haqqani, the Chief Justice of the Taliban Supreme Court, and identifies evidence of women’s confinement in a book authored by him. Abdul Hakim Haqqani is an influential figure who has instructed many high-ranking Taliban members, and his book carries a foreword endorsed by Mullah Hibatullah Akhundzada, the supreme leader of the Taliban.

Chief Justice of the Taliban Supreme Court Labels Women as “Deficient in Intelligence and Religion” in His Book

According to the report from the United Nations correspondent, Haqqani’s book titled “The Islamic Emirate and its System,”, originally written in Arabic as “Al-Emarah al-Islamiah wa Nedhamuha” published in April 2022, provides insight into his views. Haqqani, the Chief Justice of the Taliban Supreme Court, argues that Islamic law dictates women should remain at home, caring for their children. He asserts that women are weak, lacking in intelligence and religious understanding, and therefore unsuitable to be imams or judges. Haqqani expands on his reasoning behind this belief, stating three points outlined in the report. Firstly, women interacting with unrelated men in public is religiously prohibited (Haram). Secondly, governance is challenging, and women are perceived as weak, making them unfit to rule over others. Thirdly, women lack the authority to govern men, referencing a Hadith of Prophet Mohammad that warns against prosperity under female leadership. Haqqani maintains that women cannot serve as grand imams responsible for both religious and worldly matters, nor as minor imams leading congregational prayers.

Is the Exclusion of Women from Political Participation a Crime against Humanity?

The United Nations report highlights the deprivation of political participation rights for both men and women in Afghanistan. Currently, there are no elections, and senior appointments heavily favor men, particularly those from the Pashtun ethnic group with religious and clerical backgrounds. Men are not excluded from positions in the Islamic Emirate (the Taliban regime) solely based on their gender. In contrast, women face limitations as the Taliban view their role as confined to the home and deem them unfit for leadership positions.

Laws Established by the Taliban Abolish Human-Made Laws and Allow Physical Punishment

According to the report, one of the primary international demands before the Taliban regained power was for them to cease violating international law and human rights principles. As stated in the report, the Taliban justifies their actions by claiming that these laws are man-made and, if they contradict their interpretation of Islamic laws, they are detrimental to human well-being. Additionally, the report highlights the directive from Mullah Hibatullah Akhundzada, the supreme leader of the Taliban, who views existing laws as man-made and has ordered their repeal.

Is the Exclusion of Women from Fundamental Rights Systematic and Widespread?

Committing a criminal act intentionally, whether carried out systematically or on a widespread scale, constitutes a crime against humanity. The United Nations report clarifies that “systematic” refers to acts that are planned or repeatedly executed in an organized pattern, not resulting from random occurrences, accidents, or human errors. The report further asserts that the exclusion of women in Afghanistan from their fundamental rights to work and participate in politics is part of systematic practice. Through issued directives and enforcement, this practice has established a pattern of gender-based oppression that has grown increasingly restrictive since the Taliban regained power. The United Nations identifies the Taliban’s policy of depriving women of political participation and employment as pervasive, indicating that women have no role in public political and administrative institutions within the country. The report highlights that the Taliban has dismantled the tools and mechanisms that supported women’s political participation and employment, while also imposing a prohibition on women working in government institutions.

How Does the International Criminal Court (ICC) Address Gender Discrimination by the Taliban?

Perpetrators of crimes against humanity cannot enjoy immunity under international law, and they should face trial in domestic or international courts. One of these courts with jurisdiction and the duty to hold them accountable is the International Criminal Court (ICC). If the ICC determines that the Taliban’s actions constitute crimes and acts of sexual discrimination, the group will be subject to legal prosecution.
Based on the UN report, the deprivation of women’s rights to education, employment, freedom of travel, and peaceful assembly, as outlined in the Charter of Rome, can be recognized as crimes against humanity, including sexual harassment and torture. Specific individuals within the Taliban, such as Mullah Hibatullah Akhundzada and the Ministry of Promotion of Virtue and Prevention of Vice, economy, education, and religious affairs, have issued restrictive directives against women. However, almost all senior members of the Taliban are involved in enforcing these prohibitions, potentially making each of them criminally responsible.

The report underscores that the ICC, as a permanent international court, bears the responsibility of ending impunity for international crimes, including crimes against humanity and sexual harassment, committed within member states’ territories or in countries that accept the court’s jurisdiction. It stresses that the ICC is obligated to investigate any crime falling within its jurisdiction that has been committed on Afghan soil.

Sexual harassment and torture fall within the jurisdiction of the International Criminal Court (ICC), and there have been allegations of sexual harassment by the Taliban since at least August 2021. The UN report explicitly states, “The claim of ongoing sexual harassment in Afghanistan could be a relatively straightforward and quick case for this court.”

These reports are being published as the Taliban considers women’s education, employment, and rights as internal matters and urges the international community not to interfere. In the latest development, the group has closed down some private educational centers for girls in Kabul. Additionally, a video clip has emerged showing a member of the group in the Jaghori district of Ghazni province issuing instructions and orders regarding women’s dress code and behavior.