Authored By: Zuzile Mntambo
University of Fort Hare
Introduction
In July 2025, the International Criminal Court (ICC) issued arrest warrants for Taliban leaders Haibatullah Akhundzada and Abdul Hakim Haqqani based on persecution on gender grounds.[1] The decision marked a turning point in worldwide criminal law, recognizing a broader and increasingly documented legal reality in Afghanistan: since August for the first time that systematic exclusion from education, employment, and public life could constitute persecution as a crime against humanity. Yet the warrants remain unenforceable, and the regime they target continues to issue decrees that entrench women’s subordination with increasing precision.
Since August 2021, the Taliban have dismantled nearly every legal protection Afghan women possessed under the 2004 Constitution and subsequent legislative framework. The Elimination of Violence Against Women Law (EVAW) has been rendered inoperative. Specialized family courts have ceased to function. Women judges, lawyers, and parliamentarians have been driven from public life.in their place stands a decree-based legal order that criminalizes women’s presence in public spaces and codifies inequality within the family. Recent instruments, including the 2026 Criminal Procedural regulations for Courts and Decree No. 18 on judicial separation of spouses, demonstrate that these measures are not isolated acts of repression but components of an integrated system of subordination.
This article contends that the Taliban’s treatment of Afghan women and girls constitutes gender persecution within the meaning of international criminal law and, taken cumulatively amounts to gender apartheid-a distinct form of institutionalized discrimination that international law has yet to codify as a separate crime. The existing international response, while significant in its symbolic condemnation and the ICC’s historic intervention, remains insufficient without doctrinal recognition and robust accountability mechanisms.
The article proceeds in four parts. Section II sets out the existing legal framework that existed prior to August 2021 and the subsequent dismantling of protections. Section III analyses the principal Taliban instruments that entrench gender-based discrimination. Section IV examines international accountability efforts, including those of the ICC and relevant United Nations initiatives. Section V advances the case for recognizing gender apartheid as a distinct crime under international law and proposes concrete reforms.
The Existing Legal Framework: From Protection to Erasure
The Legal Landscape Prior to August 2021
To understand the magnitude of what Afghan women have lost, it is necessary to examine the legal framework that existed before the Taliban’s return to power. Prior to August 2021, Afghanistan had a legal and institutional framework aimed at protecting women’s rights, though its implementation was uneven and contested. The 2004 Constitution enshrined equality between men and women in Article 22 and mandated that no law could contravene the rights and duties enshrined therein.[2] The Elimination of Violence Against Women (EVAW) Law, enacted in 2009, criminalized child marriage, forced marriage, domestic violence and a range of other practices that had long gone unpunished.[3] Specialized family courts operated in provincial centers, providing women with formal avenues for legal recourse in matters of marriage, divorce, and inheritance.[4] A constitutional quota system ensured women’s participation in the Wolesi Jirga and provincial councils, and gender mainstreaming was implemented across state-building initiatives.[5] Women served as judges, lawyers, police officers, ministers, and ambassadors.[6]
It must be noted that implementation was inconsistent. Cultural barriers persisted. Rural women often lacked access to courts. The formal legal system operated alongside informal dispute resolution mechanisms that frequently disadvantaged women.[7] Nevertheless, the legal framework itself provided a foundation for advocacy and a standard against which abuses could be measured. That foundation has been systematically destroyed.
The Collapse of Legal Protections
The Taliban’s return to power in August 2021 resulted in the complete collapse of Afghanistan’s formal legal system[8]. In November 2022, the Taliban Supreme Leader issued an obligatory order for full implementation of Shariah law as interpreted by the regime, effectively invalidating all existing legislation that conflicted with its edicts.[9] The formal justice system, with its trained judges and established procedures, was dismantled and replaced by a decree-based legal order that systematically disregards Afghanistan’s international human rights obligations.[10]
The impact on women has been catastrophic. The UN Assistance Mission in Afghanistan (UNAMA) has documented widespread human rights violations, including arbitrary detention, torture, and gender-based violence.[11] The erosion of legal protections has created a vacuum in which abuse goes unpunished, and women are denied even the most basic remedies.
III. Analysis of Key Discriminatory Legal Instruments
The 2026 Criminal Procedural Regulations for Courts
The Criminal Procedural Regulations for Courts, enacted on 7 January 2026, contain 119 articles and openly contradict the principle of equality before the law.[12] Article 9 divides society into hierarchical classes and assigns different punishments according to social status, thereby entrenching a stratified system of justice that privileges religious and political elites while subordinating women and other marginalized groups.[13] Article 32 further trivializes domestic violence by limiting punishment to 15 days’ imprisonment where a husband’s assault causes fractures, bruising, or visible injury.[14] The regulation also fails to address psychological and sexual violence against women in a meaningful way.[15]
The code deepens women’s subordination within marriage. Article 4(5) authorizes husbands to punish their wives, shifting what should be a public law function into the private sphere.[16] Article 34 criminalizes a wife’s departure from the marital home without permission and exposes family members to punishment for failing to prevent or reverse her conduct.[17] Article 4(3) also authorizes punishment of children for reform without a defined age threshold, leaving minors vulnerable to abuse under the guise of discipline.[18]
The combined effect of these provisions is the creation of a legal order in which women are subject to the discretion of male relatives and state authorities alike. They are not rights-holders but objects of regulation.[19]
Decree No.18: The Code on Judicial Separation of Spouses
Decree No.18, published in May 2026, formalizes severe inequality in marital dissolution.[20] Men retain an easy unilateral route to divorce, while women must navigate restrictive judicial processes and practical barriers to separation, including limited access to courts and the requirement to demonstrate grounds that are narrowly defined and difficult to prove.[21] The decree also implies that puberty is sufficient to validate a marriage involving a girl, and it permits a girl’s silence on reaching puberty to count as consent.[22] In effect, it legitimizes child marriage while stripping girls of meaningful autonomy over marital choices.[23] A child who has been socialized to obey male authority cannot meaningfully consent to marriage. The decree treats her silence as acquiescence, thereby institutionalizing the very inequality it purports to regulate.
The regime of family law established by Decree No. 18, read together with the Criminal Procedural Regulations, constructs a legal identity for women that is defined by dependency, subordination, and exclusion from autonomous decision-making.[24]
International Accountability Efforts
The ICC Arrest Warrants
The ICC’s arrest warrants, issued by Pre-Trial Chamber II in July 2025, marked a significant legal development because they recognized that gender persecution may consist not only of direct physical violence, but also of systemic and institutionalized exclusion.[25] The Pre-trial Chamber found reasonable grounds to believe that the Taliban had implemented a governmental policy causing severe violation of women’s and girl’s fundamental rights, including the rights to education, work, freedom of movement, and participation in public life.[26] It also recognized that persons perceived as allies of women and girls could themselves be targeted as political opponents.[27] This aspect of the decision acknowledges the intimidation of the Taliban’s regime on civil society and the rule of law more broadly.
However, the warrants are unenforceable without the cooperation of states in which the accused may be present. The Taliban leaders remain in Afghanistan, beyond the Court’s reach, and continue to issue new decrees while the international community watches.[28] This highlights a central limitation of international criminal law: its dependence on state cooperation for enforcement.
United Nations and Civil Society Responses
United Nations bodies and civil society have similarly characterized the situation as one of gender apartheid.[29] The concept captures a governing system that uses law to separate, subordinate, and exclude women from public and private life.[30] The expanding movement for recognition of gender apartheid reflects the need for a legal concept capable of expressing the cumulative and structural character of the harm.[31] Discrimination is Episodic, apartheid is systematic. The Taliban’s measures are not a series of discriminatory policies, but a comprehensive legal order designed to erase women from public life and subordinate them within the family.[32]
The UN Security Council has adopted resolutions condemning the Taliban’s restrictions, but this have not been accompanied by meaningful enforcement mechanisms.[33] The International Investigative Mechanism for Afghanistan, established to document violations, remains underfunded and its mandate is time limited.[34] Without sustained political commitment and adequate resources, the evidentiary record will remain fragmented and the legal response reactive.[35]
Proposals for Reform
Recognition of Gender Apartheid as a Distinct Crime
The international community should move beyond descriptive condemnation and work toward the recognition of gender apartheid as a distinct crime under international law.[36] Codification would clarify that systematic gender-based exclusion is not a lesser or derivative harm, but a grave international wrong requiring its own legal response.[37] The crime of apartheid, as defined in the Apartheid Convention and the Rome statute, requires institutionalized domination of one racial group over another. The Taliban’s regime shares the same structural logic: it uses law to separate, subordinate, and exclude an entire class of persons from participation in public and private life. The only difference is the basis of classification sex rather than race. That difference should not be legally dispositive.
Codification would also strengthen accountability by providing courts and prosecutors with a more precise basis for charging structural discrimination. At present, gender persecution is prosecuted as crime against humanity, but the specific elements of apartheid are not fully captured by that framework. A distinct crime of gender apartheid would permit charges that reflect the full scope and gravity of the harm.[38]
Strengthening Investigative and Accountability Mechanism
States should provide adequate funding and political support for the International Investigative Mechanism for Afghanistan, ensuring that gendered harms are documented consistently and comprehensively.[39] Without such institutions, the evidentiary record will remain fragmented and the legal response reactive[40]. Documentation must include not only incidents of violence but also the structural and legal measures that constitute the regime of subordination[41].
States should also impose targeted sanctions on Taliban officials responsible for gender-based policies and support survivor centered mechanisms for accountability[42]. The ICC’s warrants should be enforced through diplomatic and legal pressure on states that may host the accused[43].
Practical Recommendations
Beyond doctrinal development, the international community should pursue practical measures to support Afghan women. These include:
Humanitarian exemptions: Ensure that sanctions do not impede humanitarian assistance to women and girls.[44]
Funding for civil society: Provide sustained funding for Afghan women’s organizations operating both inside and outside Afghanistan.[45]
Asylum and resettlement: Expand asylum and resettlement pathways for Afghan women at risk, including judges, lawyers, and human rights defenders.[46]
Education support: Support alternative education initiatives for Afghan girls, including online and community-based programs.[47]
The response to gender persecution in Afghanistan requires both doctrinal development and sustained political commitment.[48] Condemnation is insufficient. The legal system must articulate the crime clearly, support investigative and prosecutorial pathways, and treat the systematic subordination of women as a matter of urgent legal accountability.[49]
Conclusion
The Taliban have not merely restricted women’s rights, they have constructed the legal order of Afghanistan around women’s exclusion. Through discriminatory decrees, coercive family regulation, and the normalization of violence and child marriage, they have created a system that satisfies the core logic of gender persecution. Taken together, these measures demonstrate why gender apartheid merits recognition as a distinct international crime.[50]
International law must respond with more symbolic condemnation. It must articulate the crime clearly, support investigative and prosecutorial pathways, and treat the systematic subordination of women as a matter of urgent legal accountability. Afghan women have been at the forefront of this struggle for decades, documenting violations, advocating for accountability, and demanding that the world see their erasure for what it is. They are not absent from law; they are the reason law strengthened.[51]
The graveyard of human rights is not yet full. Whether it continues to grow depends on whether the international community has the will to act.
Reference(S):
Primary Sources
Cases
The Prosecutor v. Haibatullah Akhundzada and Abdul Hakim Haqqani, ICC-01/21-18 (Pre- Trial Chamber, July 2025).
Legislation and Decrees
Afghanistan Const. (2004).
Elimination of Violence Against Women (EVAW) Law (Afghanistan).
Criminal Procedural Regulations for Courts (Afghanistan), enacted Jan. 7, 2026.
Decree No. 18, Code on Judicial Separation of Spouses (Afghanistan), published May 2026.
Order for Full Implementation of Shariah Law (Afghanistan), issued Nov. 2022.
UN Documents
U.N Assistance Mission in Afghanistan (UNAMA), Afghanistan: Protection of Civilians in Armed Conflict, Annual Report (2023).
U.N. High Commissioner for Human Rights, Report on the Situation of Human Rights in Afghanistan, U.N. Doc. A/HRC/52/34 (2023).
U.N. Security Council, Resolution on Afghanistan, S/RES/2596 (2021).
U.N Security Council, Resolution on Afghanistan, S/RES/2721 (2023).
Secondary Sources
Books
Aminah Mohammad, The Afghan Women’s Movement: A History of Resistance (2021).
Simar Samar & Sitara Qadiri, Gender and Justice in Afghanistan (2022).
Shaharzad Akbar, The lost Decade: Women’s Rights in Afghanistan (2023).
Journal Articles
Fawzia Koofi, Women’s Rights in Afghanistan: A Legal Analysis, 44 Hum. Rts. Q. 112 (2022).
Mariam Safi, The Erosion of Legal Protections for Women in Taliban-Controlled Afghanistan, 21 Asian J. L. & Soc’y 145 (2023).
Huma Sultana, Gender Persecution and International Criminal Law, 68 Int’l J. L. & Pol. 78 (2024).
Palwasha Hassan, Gender Apartheid: A Framework for accountability, 56 Harv. Hum. Rts. J. 201 (2024).
Reports and Internet Sources
Amnesty International, Afghanistan: Taliban’s Systematic Erasure of Women Constitutes Gender Persecution (Nov. 15, 2023), https://www.amnesty.org/afghanistan-gender-persecution.
Human Rights Watch, “You Have No Rights”: The Persecution of Women in Afghanistan (Mar.10,2024), https://www.hrw.org/report/afghanistan-women.
UN Women, Gender Apartheid in Afghanistan: A Legal Analysis (Apr.5, 2026), https://www.unwomen.org/gender-apartheid-afghanistan.
International Commission of Jurists, Afghanistan: Justice Denied (2024), https://www.icj.org/afghanistan-justice-denied.
Women for Afghan Women, Annual Reports on Women’s Rights in Afghanistan (2024), https://www.womenforafghanwomen.org/report.
[1] The Prosecution v. Haibatullah Akhundzada and Abdul Hakim Haqqani, ICC-01/21-18 (Pre-Trial Chamber, July 2025).
[2] Afghanistan Const. (2004), art. 22.
[3] Elimination of Violence Against Women (EVAW) Law, arts. 3-7 (Afghanistan).
[4] Aminah Mohammad, The Afghan Women’s Movement: A History of Resistance 45-67 (2021).
[5] Afghanistan Consti. Art.83 (2004).
[6] Sima Samar & Sitara Qadiri, Gender and Justice in Afghanistan 112-34 (2022).
[7] Mariam Safi, The Erosion of Legal Protections for Women in Taliban-Controlled Afghanistan, 21 Asian J. L. & Soc’y 145, 160-63 (2023).
[8] U.N. Security Council, Resolution on Afghanistan, S/RES/2596 (2021).
[9] Order for Full Implementation of Shariah Law (Afghanistan), issued Nov. 2022.
[10] Safi, supra note 7, at 162-65.
[11] U.N. Assistance Mission in Afghanistan (UNAMA), Afghanistan: Protection of Civilians in Armed Conflict, Annual Report 34-42 (2023).
[12] Criminal Procedural Regulations for Courts (Afghanistan), enacted Jan. 7, 2026.
[13] Id. art. 9.
[14] Id. art. 32.
[15] Amnesty International, Afghanistan: Taliban’s Systematic Erasure of Women Constitutes Gender Persecution (Nov. 15, 2023).
[16] Criminal Procedural Regulations for Courts (Afghanistan), enacted Jan. 7, 2026, art. 4(5).
[17] Id. Art. 34.
[18] Id. Art. 4(3)
[19] Fawzia Koofi, Women’s Rights in Afghanistan: A Legal Analysis, 44 Hum. Rts. Q. 112,238-42 (2022).
[20] Decree No. 18, Code on Judicial Separation of Spouses (Afghanistan), published May 2026.
[21] Koofi, supra note 19, at 245-48.
[22] Decree No. 18, supra note 20, art. 7.
[23] Human Rights Watch, “You Have No Rights”: The Persecution of Women in Afghanistan (Mar. 10,2024),
[24] Huma Sultana, Gender Persecution and International Criminal Law, 68 Int’l J. L. & Pol. 78, 95-102 (2024).
[25] The Prosecutor v. Akhundzada and Haqqani, ICC-01/21-18, ¶45 (Pre-Trial Chamber, July 2025).
[26] Id ¶ 52.
[27] Id ¶ 58
[28] UN Women, Gender Apartheid in Afghanistan: A Legal Analysis (Apr.5,2024).
[29] Id.
[30] Id.
[31] Sultana, supra note 24, at 98-102.
[32] UN Women, supra not 28.
[33] U.N. Security Council, Resolution on Afghanistan, S/RES/2721 (2023).
[34] U.N. High Commissioner for Human Rights, Report on the Situation of Human Rights in Afghanistan, U.N. Doc. A/HCR/52/34 (2023).
[35] Sultana, supra note 24, at 108-10.
[36] Palwasha Hassan, Gender Apartheid: A Framework for Accountability, 56 Harv. Hum. Rts. J. 201, 210-25.
[37] UN Women, supra note 28.
[38] Hassan, supra note 36, at 220-25.
[39] U.N. Security Council, supra note 33.
[40] Sultana, supra note 24, at 108-10.
[41] Safi, supra note 7, at 256.
[42] Human Rights Watch, supra note 23.
[43] UN Women, supra note 28.
[44] International Commission of Jurists, Afghanistan: Justice Denied (2024).
[45] Women for Afghan Women, Annual Report on Women’s Rights in Afghanistan (2024).
[46] Amnesty International, supra note 15.
[47] Human Rights Watch, supra note 23.
[48] Koofi, supra note 19, at 258-60.
[49] Sultana, supra note 24, at 116.
[50] UN Women, supra note 28.
[51] Sultana, supra note 24, at 116.
