16.6 Gender-Based Persecution in the Afghanistan Investigation Authorisation

16.6 Gender-Based Persecution in the Afghanistan Investigation Authorisation

Editors

Kcasey McLoughlin, Rosemary Grey, Louise Chappell & Suzanne Varrall

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Description

In 2019, Pre-Trial Chamber II denied the Prosecutor’s request to authorise an investigation into crimes allegedly committed on the territory of the Islamic Republic of Afghanistan since 1 March 2003. While the Pre-Trial Chamber agreed that the jurisdiction, complementarity, and gravity tests were met, ultimately the Chamber decided an investigation would not be in the interests of justice.

In this rewritten decision, Susana SáCouto focuses on the allegations concerning gender-based persecution by the Taliban and other armed groups and closely analyses the Rome Statute’s definition of ‘gender’ per Article 7(3) and the definition of ‘persecution’ per Articles 7(1)(h) and 7(2)(g) of the Rome Statute. Using the Vienna Convention on the Law of Treaties as well as the ICC Office of the Prosecutor’s 2014 Policy Paper on Gender-based Crimes, SáCouto concludes that gender-based persecution includes persecutory acts that are motivated by the perpetrators’ beliefs, attitudes, and perceptions regarding appropriate social behaviour based on gender. Her decision stresses that without this understanding of gender, the Court would not be able to recognise the full scope of gender-based harms committed against women and girls in Afghanistan, including the attacks by the Taliban and affiliated armed groups aimed at preventing women and girls from studying, teaching, working, or participating in public affairs. Moreover, Judge SáCouto addresses whether and how gender-based persecution intersects with other grounds of persecution, and finds that characterising the persecution against Afghan female politicians, public servants, and students as having been based on intersecting gender and political grounds more accurately captures the basis of the discrimination underlying this crime and the aggravated nature of the harms resulting from it.

ISBN

9781009255271

DOI

https://doi.org/10.1017/9781009255271

Publication Date

7-20-2025

Book Title

Feminist Judgments: Reimagining the International Criminal Court

First Page

534

Last Page

612

Publisher

Cambridge University Press

Series

Feminist Judgment Series: Rewritten Judicial Opinions

Keywords

Afghanistan, feminist theory, judicial opinions, UN and International Organisations, US Law, American Government, Politics and Policy, Law, Criminal Law, Islamic Republic of Afghanistan, Taliban, gender apartheid, gender-based persecution, atrocity crimes, international accountability mechanisms

Disciplines

Comparative and Foreign Law | Courts | Criminal Law | Feminist, Gender, and Sexuality Studies | Feminist Philosophy | Human Rights Law | International Humanitarian Law | International Law | International Relations | Judges | Jurisprudence | Law | Law and Gender | Law and Politics | Law and Society | Legal History | Military, War, and Peace | Near and Middle Eastern Studies | Peace and Conflict Studies | Terrorism Studies | Transnational Law

16.6 Gender-Based Persecution in the Afghanistan Investigation Authorisation

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