On July 8th a panel of judges at the International Criminal Court (ICC) approved arrest warrants for two leaders of the Taliban. They are accused of persecuting women and girls by making laws that violate their rights to education, family life, expression, religion, and more.
The facts here are hardly in question. The Taliban, invoking their fundamentalist religious values, have denied women access to education, the right to work and move freely outside the home, the right to hold public office, and have imposed a strict dress code. All this seems to be a direct affront to the principle of equality which is at the core of human rights.
However, there is still reason to question whether these arrest warrants are a good move. In a typical ICC case, the party under investigation does not deny that whatever atrocity they are accused of is a crime. Instead, they either claim the accusations against them are factually untrue or give some extenuating circumstance that they say makes their actions acceptable.
But the situation in Afghanistan is totally different. The Taliban are open about what they’re doing. In fact, the Taliban even claim that “All fundamental rights afforded to Afghan women have been safeguarded in strict accordance with Islamic Sharia law, as well as the cultural and traditional frameworks of Afghan society.”
In other words, what we have here is a conflict about culture and religion. The Taliban maintain that what the ICC calls persecution of women is really just them following their religious law. They say it’s beneficial to women and shouldn’t be regarded as a crime at all.
In this case, is criminal justice the best way forward? Will criminalizing the Taliban’s religious beliefs, offensive to human rights as they may be, prompt those beliefs to change? Or will this only harden the Taliban’s attitude, as they see themselves holding fast and clinging to their traditions as they are attacked by foreign, Western values? Wouldn’t real change have to come from the inside, perhaps led by Afghan women themselves, rather than an outside force such as the ICC?
Of course, there also must be some limit on what the world should accept in the name of religion. What if some group announced that racial discrimination was a religious belief? Would we then tolerate racial discrimination? In fact, some argue that what the Taliban are doing is similar to Apartheid, and therefore absolutely must be stopped. Some human rights activists even go so far as to label the Taliban’s policies gender Apartheid, and claim that gender Apartheid should be recognized as a new category of international crime.
The Taliban’s policies seem to meet the legal criteria to justify these ICC warrants. But does pursuing this case against the Taliban serve the purpose for which the ICC was created? Would the ICC be better off sticking to traditional war crimes and crimes against humanity, recognizing that changing religious and cultural values is beyond its reach? Or do we need the ICC to issue these indictments to take a stand that such restrictive, gender based policies are beyond the pale of what can be tolerated in the 21st century? I’m anxious to hear your comments.