International Justice

CJ354 Endicott College

Afghanistan, Violence and Women

Afghanistan, Violence Against Women and Responsibility

A recent (pending) change in the law in Afghanistan means that victims of womens violence will be silenced, as will witnesses. Honour killings, forced marriages, sexual violence and human trafficking will all be extremely difficult to prove or prosecute given the full ban of testimony. As HRW states, “it would let batterers of women and girls off the hook”.

My question on this is twofold. The first is the ability of the ICC to hold Karzai responsible, or rather to what degree his administration is responsible. The change in law could lead to a large upswing in violence against women, particularly of the sexual kind. In conflict zones, as we have seen, sexual violence is very much under the mandate of the ICC. Indeed a change in legislation that actively prevents testimony, and thus the prosecution of ‘batterers of women’ is surely indication of a state’s unwillingness to prosecute such crimes, a central tenant of evaluating the ICC’s jurisdiction.

That the state has sponsored such legislation brings into question the conflict type that the ICC could involve itself with. Certainly sovereignty arguments apply strongly here-the ICC cannot, nor should it, go around prosecuting everything left, right and centre. Perhaps such a law is not an active crime against humanity-it is obviously distinct from a Ntaganda that orders troops to commit these atrocities. But that seems to leave the women of Afghanistan with little recourse. The second question is thus-if not the ICC then who? This seems to be a passive crime in that it prevents the justice system from acting on behalf of women. Yet if the judicial process fails its female population, do we need to rethink how to combat such crimes. Legislators must know the effect on women such a law would have, and yet they have chosen to pass it nonetheless.

The implications of such a case would be vast, clearly. The problem is that this seems to fall into a grey area, one that at least partly indicates an unwillingness and inability to prosecute crimes, but that does not look like the ‘active’ crimes against humanity that our brutal dictators commit. Where, then, is the space in international justice for something to happen for the women of Afghanistan? (Other than NGOs and governments put pressure on them, which generally seems the least and the most any international action could be).


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