Bringing Gender Persecution to
Posted: Mon Feb 17, 2025 8:39 am
In a groundbreaking move, Australia, Canada, Germany, and the Netherlands have announced their intention to take Afghanistan to the International Court of Justice (ICJ) over gender discrimination, following the Taliban’s brutal repression of women and girls. This would be the first time the ICJ has been used by a state to challenge another under the Convention on the Elimination of All Forms of Discrimination Against Women for gender discrimination. Since the Taliban seized control in August 2021, Afghan women and girls have faced what many activists, scholars, and policymakers are calling gender apartheid—a regime of systematic oppression that affects virtually every aspect of their lives.
The Taliban’s decrees have barred women from education beyond the sixth grade, mandated that they travel only with a mahram (male guardian), and imposed punishments for women who raise their voices in public. According to the UN Special Rapporteur on the situation of human rights in Afghanistan, Richard Bennett, these measures, coupled with increased surveillance by morality inspectors and restrictions on the media, represent “gender persecution, a crime against humanity,” that is reshaping Afghan society. The Taliban’s new vice and virtue laws, implemented in 2023, further entrench this system, with new rules that forbid women from leaving their homes unless fully covered and from engaging in public activities such as singing or raising their voices.
This initiative, if it moves forward, not only signals the international overseas chinese in europe data community’s recognition of gender discrimination in Afghanistan but also sets an important precedent for how gender persecution—a crime against humanity—can be addressed at the highest levels of international law.
The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) was adopted in 1979 by the United Nations General Assembly, but, importantly, we have not yet seen CEDAW as a basis for ICJ jurisdiction. Indeed, this would mark only the second time that a state has sought to base ICJ jurisdiction on CEDAW Article 29. The provision requires the state bringing the case to first attempt to settle the dispute through negotiation. Only if those negotiations fail can the state proceed to request ad hoc arbitration, which triggers a six-month period. Only if arbitration cannot be agreed upon within that timeframe, can one of the parties then turn to the ICJ. The provision has so far only been invoked by the Democratic Republic of Congo in its case against Rwanda but in that case the Court found Article 29’s conditions had not been satisfied. It is not clear from the initial reports whether Australia, Canada, Germany, and the Netherlands have reached the arbitration stage or are still negotiating. For example, if negotiations have failed and they have now requested arbitration, it means the case might not be brought before the ICJ until Spring 2025. Only once this six-month window closes, could the four states seek, for example, provisional measures, which could trigger a hearing at the ICJ and the first moment arguments can be heard.
The Taliban’s decrees have barred women from education beyond the sixth grade, mandated that they travel only with a mahram (male guardian), and imposed punishments for women who raise their voices in public. According to the UN Special Rapporteur on the situation of human rights in Afghanistan, Richard Bennett, these measures, coupled with increased surveillance by morality inspectors and restrictions on the media, represent “gender persecution, a crime against humanity,” that is reshaping Afghan society. The Taliban’s new vice and virtue laws, implemented in 2023, further entrench this system, with new rules that forbid women from leaving their homes unless fully covered and from engaging in public activities such as singing or raising their voices.
This initiative, if it moves forward, not only signals the international overseas chinese in europe data community’s recognition of gender discrimination in Afghanistan but also sets an important precedent for how gender persecution—a crime against humanity—can be addressed at the highest levels of international law.
The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) was adopted in 1979 by the United Nations General Assembly, but, importantly, we have not yet seen CEDAW as a basis for ICJ jurisdiction. Indeed, this would mark only the second time that a state has sought to base ICJ jurisdiction on CEDAW Article 29. The provision requires the state bringing the case to first attempt to settle the dispute through negotiation. Only if those negotiations fail can the state proceed to request ad hoc arbitration, which triggers a six-month period. Only if arbitration cannot be agreed upon within that timeframe, can one of the parties then turn to the ICJ. The provision has so far only been invoked by the Democratic Republic of Congo in its case against Rwanda but in that case the Court found Article 29’s conditions had not been satisfied. It is not clear from the initial reports whether Australia, Canada, Germany, and the Netherlands have reached the arbitration stage or are still negotiating. For example, if negotiations have failed and they have now requested arbitration, it means the case might not be brought before the ICJ until Spring 2025. Only once this six-month window closes, could the four states seek, for example, provisional measures, which could trigger a hearing at the ICJ and the first moment arguments can be heard.