‘Operation Enduring Slavery’: Afghan women betrayed and shunned by UN, ICC

Besides USA and NATO, the United Nations and the International Criminal Court are equally responsible for leaving Afghan women in the lurch after the Taliban takeover. Fully aware of the crimes committed against them by the Taliban, these global bodies have done nothing but pass resolutions expressing concern about women and reiterating their rights, writes ANINDA DEY

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THE overflowing, ubiquitous blue burqa in Afghanistan in 1996-2001 symbolised the ultra-orthodoxy and the brutal imposition of Sharia by the Taliban during its first emirate. Publicly whipped for daring to go out unaccompanied by men, seen without the burqa or working, Afghan women saw deliverance in Operation Enduring Freedom in 2001, which dislodged the barbarians.

Twenty years later, the same global military powers, led by the USA, have surrendered to the savages, turning it into 'Operation Enduring Slavery' for Afghan women with the Sharia and the primitiveness back.

The gender apartheid has returned with male and female students segregated at universities, a new dress code imposed and women, except in the health sector, barred from working.

Policewoman Banu Negar, eight months pregnant, was shot dead and her face disfigured by the Taliban in Firozkoh, the capital of Ghor province, early this month. At least, six policewomen were murdered in the few months before the Taliban seized Kabul.

Also read: Interpreting the United Nations Security Council Resolution 2593 on Afghanistan: change or status quo?

United Nations looks the other way 

Apart from the USA and other global powers, like the UK, Germany and France, the United Nations (UN) and the International Criminal Court (ICC) are equally responsible for pushing Afghan women into this quagmire by being mute spectators as first the Mujahideen raped and abused them, and then the Taliban twice imposed their medieval canon of barbarity and backwardness.

These international organisations have done nothing but pass resolutions and express concern at the worsening condition of Afghan women and criticise their tormentors despite the UN charter prescribing armed intervention to maintain or restore international peace and security.

According to Article 42 in Chapter VII—'Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression'—of the UN Charter, if the measures provided for in Article 41 "have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security".

On September 30, 1998, the International Court of Justice (ICJ) called for international intervention in Kosovo and sanctions on Serbia and denounced the indiscriminate use of force by the Serb Army units against civilian targets in rural Kosovo.

The ICJ said that if the Serbian government doesn't end the use of indiscriminate force against civilians immediately, it will call on the UN Security Council (UNSC) to act under Article 41. If such measures prove to be ineffective, "the only way to stop [under Article 42] President Milosevic's wanton reign of terror in Kosovo is for the international community to live up to its responsibilities and intervene in Kosovo in order to protect innocent civilian lives", it had said.

Four-and-a-half months before the white Taliban flag was hoisted in Kabul, UN secretary general António Guterres, in a report submitted to the UNSC, stated: "In 2020, the United Nations Assistance Mission in Afghanistan documented 271 cases of sexual and gender-based violence, 18 of which were verified as conflict-related sexual violence, affecting nine boys, five women and four girls. Acts of conflict-related sexual violence committed against three girls were attributed to members of the Taliban." Guterres only said that 32 out of 34 specialised prosecution offices set up for implementing the law on elimination of violence against women are headed by women without mentioning the success rate of prosecution.

Despite UN Resolution 1325 affirming "the importance of the participation of women and the inclusion of gender perspectives in peace negotiations, humanitarian planning, peacekeeping operations, and post-conflict peace-building and governance", Afghan women have been completely sidelined in decision-making or governance matters and restricted to domestic chores.

Also read: As Afghanistan plunges into a political crisis, a look back at the patent illegality of its invasion by the United States in 2001

In fact, UN Resolution 2122 emphasises that "persisting barriers to full implementation of Resolution 1325 will only be dismantled through dedicated commitment to women's empowerment, participation, and human  rights, and through  concerted  leadership, consistent information and action, and support, to build women's engagement in all levels of decision-making". The Resolution recognised that more measures were needed to address the violation and abuse of women's rights and their "forced displacement and enforced disappearances".

However, except expressing concern for women and reaffirming their importance in preventing conflicts and peace-building, the UN has failed to act while Afghan women are being increasingly treated as second-class citizens. Reaffirming "the need to implement fully international humanitarian and human rights law that protects the rights of women and girls during and after conflicts" is meaningless if not matched by decisive measures.

After the Taliban recaptured Kunduz in 2015, its death squads committed mass murder and gang rapes during house-to-house searches, Amnesty International had reported, brazenly flouting UN Resolution 1820 (2008), which notes that "rape and other forms of sexual violence can constitute a war crime" and calls upon the member states to prosecute persons responsible for such acts.

Similarly, UN Resolution 3318 prohibits inflicting incalculable suffering, especially on women and children, who are the most vulnerable members of the population, and that "all forms of repression and cruel and inhuman treatment" of them shall be considered criminal.

The UN exposed its hypocrisy and lack of concern for Afghan women on August 24, when the Human Rights Council, after a one-day special session, passed a Resolution on Afghanistan without mentioning the Taliban. It failed to even establish an international, independent monitoring and accounting mechanism to document the atrocities committed by the Taliban, especially against women,. Shockingly, the Council had neither convened a single special session on Afghanistan nor adopted a single Resolution condemning the Taliban before.

The UN cannot abdicate its responsibility on the pretext of the international non-recognition of the current or the previous Taliban regimes. Instead of urging the Taliban to protect the rights of women and girls, the UN should have taken concrete measures.

Guterres painted a sorry picture on August 15, the day evil landed in Kabul, by urging the Taliban to exercise utmost restraint to protect lives and ensure that humanitarian needs can be addressed, "particularly concerned about the future of women and girls, whose hard-won rights must be protected".

Also read: Afghanistan: Behind the Smoke and Mirrors

Article 7 of the UN's International Covenant on Civil and Political Rights, ratified by Afghanistan on January 24, 1983, prohibits any kind of torture or cruel, inhuman or degrading treatment or punishment. The Covenant protects women from gender-based violence under Article 6, the right to liberty and security under Article 9 and the right to equality before the law, including effective protection against discrimination on the ground of sex under Article 26.

'International bill of rights for women' violated

The most flagrant violation of UN regulations in Afghanistan has been the utter disregard for the 1979 Convention on the Elimination of All Forms of Discrimination against Women, considered as an 'international bill of rights for women' and signed by the country on August 14, 1980.

The Convention defines discrimination against women as "… any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field".

According to Article 5, the member nations shall take proper steps to "modify the social and cultural patterns of conduct of men and women" to eliminate prejudices based on the idea of the inferiority or the superiority of either of the sexes.

It is mandatory for the signatories to "incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women". The countries who signed the Convention must ensure that women get equal access to and opportunities in political and public life, including the right to vote and contest elections. However, the new Taliban government has scrapped the ministry of women in the all-male Parliament.

Also read: Why the Afghanistan crisis underscores the need for a refugee law

The Convention makes the signatories legally bound to enact the provisions and submit national reports, at least, every four years, on measures they have taken to comply with their obligations.

The Taliban has also violated Article 11(1)(a) and (1)(c) of the Covenant, which make the right to work an inalienable right of all humans and give women the right to choose a profession and employment, respectively, by barring women from working.

Similarly, the Taliban has also flouted the UN's Universal Declaration of Human Rights by restricting women from working and moving unless accompanied by a male guardian. According to Article 23, everyone has the right to work and the free choice of employment. Article 13 states: "Everyone has the right to freedom of movement and residence within the borders of each state."

ICC probe into war crimes still stalled

When a country is unable or unwilling to investigate war crimes committed on its soil, the ICC is the court of last resort. Article 7 of the ICC's Rome Statute includes rape and imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law as crimes against humanity.

The ICC took two years to authorise the November 2017 request of then-ICC prosecutor Fatou Bensouda to launch an investigation into the alleged war crimes and crimes against humanity in Afghanistan dating back to 2002.

Even after the approval, the investigation was stalled when the then-Ashraf Ghani government asked Bensouda to defer it under Article 18(2) of the Rome Statute, which states that if the State informs the Court that "it is investigating or has investigated its nationals or others within its jurisdiction" with respect to war crimes and requests the prosecutor to defer the probe of those persons, the probe shall be deferred.

Shockingly, Bensouda was blacklisted by the USA in September 2020 for trying to investigate whether American forces had committed war crimes in Afghanistan.

Except expressing concern and hinting at monitoring the situation in Afghanistan, Bensouda's successor Karim Khan has done nothing despite increasing evidence of Taliban atrocities. Khan has the moral responsibility to not let the Taliban commit further atrocities on women.

Also read: On the legal recognition of the new Taliban government in Afghanistan within international order

Under Article 54 of the Statute, which mentions the duties and powers of the prosecutor with respect to investigations, Khan is obligated to "establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally". It is also mandatory for the prosecutor to take proper measures to ensure an effective probe and prosecution of crimes within the jurisdiction of the court

Since neither the Taliban regime has been internationally recognised nor it is expected to cooperate in collection of evidence and help Khan execute arrest warrants, if any, the ICC investigation has reached a dead end.

Still, the ICC should not defer its probe indefinitely and collect evidence of the war crimes committed in Afghanistan. It cannot shun its responsibility of ensuring justice to the victims of rape and murder committed by Taliban members now in power.

Article 27 specifically mentions that the "Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a head of State or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute nor shall it constitute a ground for reduction of sentence".

Afghan women have always been always neglected  

After the Soviets withdrew from Afghanistan in 1989, the situation of women became extremely grim. With rival Mujahideen factions led by warlords fighting for power, lawlessness became the law in 1992-95. Women became nothing but the spoils of war. Scores of women were abducted, raped, detained and forced into sexual slavery and prostitution by the Mujahideen.

The Mujahideen too prohibited women from working and attending education or family planning courses. Since the Mujahideen were not as organised as their successor, the Taliban, the Sharia was not imposed with the same brutality. Still, women were treated as second-class citizens with no rights. 

Also read: Afghan student fears Taliban execution if deported by India

Even then the international community turned away with the USA leaving Afghans to their fate after helping the Mujahideen oust the Soviets. The Mujahideen, like the Taliban, had violated Article 24 of the Fourth Geneva Convention, which says, women must be "especially protected against any attack on their honour, in particular against rape, enforced prostitution or any other form of indecent assault". Similarly, Article 3, which is common to all the Geneva Conventions, prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment in non-international armed conflicts".

(Aninda Dey is an independent journalist. The views expressed are personal.)