Introduction
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 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.
Bringing Gender Persecution to the ICJ
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.
Australia, Canada, Germany, and the Netherlands have to ensure the CEDAW Article 29 requirements have been (or will be) met. Indeed, if the case goes ahead, it will be the latest example of states seeking to enforce obligations erga omnes partes while not being directly injured themselves. Other pending cases include The Gambia v Myanmar, South Africa v Israel, Canada and the Netherlands v Syria, and Nicaragua v Germany. As none of these other cases have reached or completed the merits stage yet, it is unclear whether such cases can be effective, as opposed to specific disputes between two or more parties. While provisional measures have been ordered in response to most requests from the applicants, the enforcement of these measures remains problematic. This underscores a critical challenge in international legal proceedings: even when interim relief is granted, ensuring compliance is another matter entirely.
Notably, Canada and the Netherlands are no strangers to this kind of action. They have previously brought a joint case against Syria, underscoring their active role in holding states accountable under international human rights law. Their involvement in this case reflects a continuation of that commitment, as they seek to reinforce the global framework for upholding CEDAW and other human rights treaties.
The ICC Afghanistan Situation
In parallel to this potential ICJ case being considered under CEDAW, the International Criminal Court (ICC) has also been seized of the situation in Afghanistan since 2007. The ICC opened an investigation into alleged war crimes and crimes against humanity in Afghanistan in 2020, although it has been a long and complicated process, particularly due to political pressures. After a decade-long preliminary examination, which started in 2007, then Prosecutor of the ICC, Fatou Bensouda, sought authorisation to investigate crimes committed by both pro-government and anti-government forces since 1 May 2003, including US military personnel and the CIA. This was a challenging move, as the United States is not a party to the Rome Statute and has been openly hostile to the ICC’s jurisdiction over its nationals. The scope of the investigation also extended to crimes committed on the territory of other States Parties to the Rome Statute, further complicating its geopolitical implications.
In April 2019, Pre-Trial Chamber II controversially rejected the Prosecutor’s request to investigate, arguing that such an investigation would not be in the “interests of justice”, taking into account the political sensitivities and the lack of cooperation expected from the U.S. government. This decision was widely criticised and the Appeals Chamber overturned this decision in March 2020, authorising the investigation to proceed. However, in response, the Trump administration imposed sanctions on senior ICC officials, including the Prosecutor, accusing the Court of infringing on US sovereignty. These sanctions were later lifted by the Biden administration, but the political pressure surrounding the investigation has remained intense.
Further complicating the situation, Afghanistan’s former government sought to defer the investigation in March 2020 under Article 18(2) of the Rome Statute, arguing that it was conducting genuine investigations on its own. However, the ICC’s Pre-Trial Chamber II found in October 2022 that Afghanistan was not pursuing credible investigations and allowed the Prosecutor to resume its work. Since then, there have been no public arrest warrants, and the investigation continues.
The participation of both the ICJ and the ICC in addressing Afghanistan’s human rights situation demonstrates the importance of a multi-faceted approach to international accountability. It also reflects broader trends in international law: recent proceedings at the ICJ overlap with cases and/or situations before the ICC, including those concerning the situations in Ukraine, Palestine, and for the Rohingya. However, as the slow progress of these proceedings shows, achieving justice — especially in politically charged contexts involving major global powers — remains fraught with complexity. The pursuit of accountability is clear, but the challenges of enforcing justice in such a turbulent political landscape persist.
Who Represents Afghanistan?
One immediate issue that would present itself is who represents Afghanistan. Legally speaking, the case would be against Afghanistan, not the Taliban. There seems to be just one problem: a number of states, including Germany, claim that it does not recognise the Taliban government. A case against Afghanistan thus raises questions of attribution and representation (on which I recommend this post). While it remains to be seen how this would unfold in ICJ proceedings, the starting point is that for the purposes of the Court, it is the State and not the government that has standing to appear. When this issue presented itself in The Gambia v Myanmar, the Court appears to have taken the approach that it does not address the matter if it does not have to.
For further practice, it is relevant to consider how the ICC has dealt with this issue in the Afghanistan situation. Indeed, as the deferral request was being considered, the political situation in Afghanistan changed drastically with the Taliban taking over control of most of the territory after 15 August 2021. While ICC proceedings usually focus on individuals, a deferral request under Article 18(2) of the Rome Statute can only be made by a State. Consequently, ICC judges had to consider who represented the State of Afghanistan, particularly as the Deferral Request had been submitted prior to August 2021. The ICC Pre-Trial Chamber took a practical approach, stating that since it had not received updated observations from Afghanistan and that the Deferral Request was never formally withdrawn, the Court remained seized of the Deferral Request and consequently could authorise the resumption of the investigation (para. 41). Since then, the Embassy of the Islamic Republic of Afghanistan in The Hague has been the one who interacts with the Court, as the most recent (public) filing from December 2022 indicates.
Conclusion
The announcement that Afghanistan could be taken to the ICJ over gender persecution marks a groundbreaking moment in international law. It would be the first time that gender persecution is brought before the ICJ, demonstrating an evolving understanding of gender-based discrimination as a serious violation of international law. Whether Afghanistan will appear is a different question entirely. Yet, while the timeline for the case remains uncertain, the significance of this announcement cannot be overstated. The involvement of both the ICJ and the ICC in addressing Afghanistan’s human rights situation underscores the increasing importance of a multi-faceted approach to international justice but also draws attention to the dire situation of women and girls in Afghanistan. Indeed, this initiative can be seen as part of a broader trend, seen in contexts like Ukraine, Palestine, and Myanmar, where international courts are working in parallel on similar situations. Whether this trend will prove to be successful, and what the impact of it will be on the practice of international law, however, remains to be seen.
