ERASING HALF THE NATION: GENDER APARTHEID UNDER THE TALIBAN AND FAILURE OF INTERNATIONAL LAW

Abstract:
The Taliban’s resurgence in Afghanistan in August 2021 marked not only a political shift but also a catastrophic reversal of human rights, especially for women and girls. This article examines how the Taliban’s de facto governance represents a modern instance of gender apartheid and contrasts it with Afghanistan’s 2004 Constitution and international human rights obligations. It also analyses the international community’s legal and moral responsibilities in addressing such systemic violations. It argues for a more robust legal framework and decisive action against gender apartheid as a distinct crime under international law. In doing so, it highlights the urgent need for systemic accountability, global solidarity, and the revival of a rights-based international order.

Introduction

The return of the Taliban to power in Afghanistan in August 2021 led to the collapse of the democratically adopted 2004 Constitution. Replacing constitutional rule with decrees rooted in a narrow interpretation of Sharia law, the Taliban systematically dismantled institutions that once upheld gender equality, human rights, and democracy. Since the takeover, Afghan women and girls have been almost completely excluded from public life- banned from education, employment, public spaces, and even humanitarian aid operations[1].

This regression is not simply a domestic issue; it is a challenge to the fabric of modern international law, which is built upon the pillars of dignity, equality, and non-discrimination. The rights of Afghan women are not merely Afghan rights; they are human rights[2]. These principles are enshrined in the Universal Declaration of Human Rights[3] (UDHR), which proclaims in Articles 1 and 2 that all human beings are born free and equal in dignity and rights, and are entitled to those rights without distinction of any kind, including sex. Their erasure from society is a collective failure of the global community to enforce its own norms.

This article explores the Taliban regime as a de facto government, analysing its accountability under international law and emphasizing the classification of its policies as gender apartheid. Drawing parallels with international case law and established human rights doctrines, this article contends that the Taliban’s systemic oppression of women meets the threshold of crimes against humanity and deserves a coordinated international legal response. Failure to do so risks legitimizing impunity and emboldening other regimes that seek to replicate similar exclusionary ideologies.

Legal Status of the Taliban as a De Facto Regime

Although no country formally recognizes the Taliban as the legitimate government of Afghanistan, their effective control over territory and state functions renders them a de facto authority. As noted in the UK Parliament’s Commons Library Briefing (CBP-10215, 2025), 39 diplomatic missions worldwide are currently under Taliban control. Despite such control, the United Nations continues to recognize the Islamic Republic of Afghanistan as the legitimate government.

Under international law, de facto regimes are not exempt from legal obligations. The principle of effectiveness in international law binds authorities exercising control to adhere to international treaties ratified by the state. This principle was recognized in Legal Consequences for States of the Continued Presence of South Africa in Namibia (ICJ Rep 1971), which emphasized that obligations continue irrespective of regime change.

The continuity of treaty obligations during regime transitions has also been confirmed in the Vienna Convention on the Law of Treaties[4], which binds successor regimes to prior treaty commitments under Article 26 (pacta sunt servanda).

The International Committee of the Red Cross (ICRC) and various UN bodies maintain that de facto authorities, such as the Taliban, must respect international humanitarian and human rights law. Afghanistan remains a party to several treaties, including the ICCPR, ICESCR, CAT, CRC, and the four Geneva Conventions, all of which remain binding despite the change in government[5].

The Taliban cannot selectively adhere to international norms—they inherit the full spectrum of Afghanistan’s legal responsibilities. The regime’s systematic suppression of half its population is not only unconstitutional but constitutes an international delict of grave proportions. It undermines the legitimacy of international human rights law if such sustained violations are met with silence.

Constitutional Promises vs. Taliban Practice

The 2004 Constitution of Afghanistan provided an inclusive legal framework that explicitly guaranteed gender equality, access to education, freedom of expression, and other fundamental rights. This framework was critical in advancing women’s participation in public, political, and economic life during the democratic era.

Key constitutional rights and current Taliban practices include:

The Taliban’s rejection of these guarantees through opaque and arbitrary decrees illustrates their fundamental disregard for democratic norms and the rule of law[7]. This regression is not a cultural anomaly—it is a political strategy to consolidate power by targeting the most vulnerable.

By eliminating women from every sphere of influence—educational, economic, judicial, and civic—the Taliban is enacting a complete gender erasure. Such systematic deprivation not only violates Afghan constitutional law but extinguishes the gains of two decades of civil rights and international investment in human development. This rollback is not accidental—it is ideological, methodical, and state-sponsored.

Gender Apartheid as a Crime under International Law

Gender apartheid refers to an institutionalized system of oppression and segregation based on gender. Although it is not yet a codified crime under most international legal instruments, gender apartheid has gained significant recognition in international legal discourse[8].

Legal scholars and human rights advocates have called for the ICC to issue arrest warrants against Taliban leaders under Article 7(1)(h) of the Rome Statute, arguing that their policies amount to gender-based persecution.

These charges resemble the legal reasoning used in Prosecutor v. Akayesu[9], where the ICTR held that rape and sexual violence, when committed as part of a widespread or systematic attack, constituted not only crimes against humanity but also acts of genocide. The judgment was groundbreaking in recognizing sexual violence as a tool of ethnic and gender-based annihilation and set the standard for prosecuting systemic violence against women under international criminal law.

Similarly, the ICTY in Prosecutor v. Tadić[10] clarified that crimes against humanity do not require a nexus to armed conflict and emphasized the applicability of international criminal responsibility to non-state actors and de facto authorities. This reinforces that Taliban officials may be held accountable under customary international law and treaty-based obligations.

The Taliban’s policies also violate:

• ICCPR – Arbitrary detention (Art. 9), denial of freedom of religion (Art. 18), expression (Art. 19), assembly (Art. 21), and association (Art. 22).
• ICESCR – Denial of access to work (Art. 6), health care (Art. 12), education (Art. 13), and an adequate standard of living.
• CAT – Public floggings and other cruel and degrading punishments fall under Article 1’s definition of torture.

The ICTY in Prosecutor v. Kunarac[11] recognized that sexual violence, including rape and enforced prostitution, when committed as part of a widespread or systematic attack, amounts to enslavement and persecution, both of which are crimes against humanity. This precedent underscores that Taliban restrictions on women’s autonomy and integrity, especially the enforcement of gender segregation, mahram requirements, and control over women’s bodies, can legally constitute gender-based enslavement and systemic persecution.

• CRC – Forced marriage and denial of girls’ education breach Articles 19, 24, and 28.
• CEDAW – The complete exclusion of women from public life violates multiple provisions.
• Geneva Conventions – Common Article 3 prohibits cruel treatment and outrages upon personal dignity.
• UNSC Resolution 1325 – The exclusion of women from civic and political engagement contravenes obligations for women’s participation in peace and security processes.

The Taliban’s framework of governance is not merely discriminatory—it is designed to dismantle women’s identity. It criminalizes their presence in public spaces and codifies their erasure[12]. This is not just a social issue; it is a legal emergency.

A compelling parallel exists with the Bosnian Genocide Case (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43, which affirmed that states can be held accountable not only for their direct actions but also for failing to prevent genocide and systematic discrimination. Complementing this, the ICTY in Prosecutor v. Krstić[13] emphasized that systematic persecution on the basis of identity, including gender or ethnicity, constitutes a core component of crimes against humanity. The tribunal found that targeting civilian populations solely based on group membership—even without outright extermination—met the legal threshold for persecution under customary international law. The Taliban’s regime may not practice genocide in the traditional sense, but its policies clearly amount to gender persecution and collective punishment of a protected group.

The International Community’s Legal Responsibilities

The international community’s moral indignation has not translated into meaningful action. Declarations of concern, sanctions on paper, and sporadic condemnations have not prevented the Taliban from further deepening their misogynistic regime. What is needed is not rhetoric but a revival of international legal accountability.

Under the Responsibility to Protect (R2P) doctrine, the international community has a collective duty to intervene—diplomatically, legally, and where necessary, through sanctions or peacekeeping—when states or de facto regimes fail to prevent mass atrocities, including crimes against humanity. The current inaction not only breaches this doctrine but also threatens its future relevance.

The ICJ in Barcelona Traction (1970) ICJ Rep 3 affirmed that states have obligations erga omnes, i.e., owed to the international community. The Taliban’s systematic gender discrimination triggers these obligations, particularly as it constitutes a threat to peace and security under Article 39 of the UN Charter.

The Pinochet[14] case before the UK House of Lords further demonstrated that crimes such as torture and crimes against humanity attract universal jurisdiction, allowing any state to prosecute offenders regardless of where the crime occurred. The court held that such offenses are so grave they override claims of sovereign immunity. This principle has direct implications for Taliban officials involved in systemic persecution of women, as they may be prosecuted in foreign jurisdictions irrespective of formal state recognition or domestic legal shields.

International institutions such as the Human Rights Council have extended the mandate of the Special Rapporteur on Afghanistan. Yet, they have failed to establish an independent accountability mechanism akin to the International, Impartial and Independent Mechanism (IIIM) for Syria. In a 2023 report, the U.N. Special Rapporteur[15] on the situation of human rights in Afghanistan, detailed and extensive gender-based restrictions under the Taliban, documenting the systemic exclusion of women from education, employment, healthcare, and public life as a form of institutionalized discrimination. This disparity in response reflects a troubling double standard in the enforcement of human rights.

Although the ICC’s involvement is encouraging, enforcement remains elusive. The lack of cooperation from key member states, the absence of a Security Council referral, and geopolitical considerations dilute the ICC’s ability to serve justice. The precedent set by the Situation in Darfur (ICC-02/05), where limited enforcement followed even after indictments, demonstrates the limits of international law when it is unsupported by state action.

Moreover, CEDAW General Recommendation No. 30[16] emphasizes that State Parties have both domestic and extraterritorial obligations to protect women during conflict and occupation, including from systemic discrimination by non-state actors. The Taliban’s governance structure and policies fall squarely within the scenarios anticipated in this Recommendation, reinforcing the need for a coordinated and gender-responsive international response.

The burden must not fall solely on international courts. States have national and extraterritorial obligations under human rights law to prevent and punish violations. This includes applying universal jurisdiction statutes, sanctioning Taliban leaders under Magnitsky-type laws, and ensuring safe asylum pathways for Afghan women and human rights defenders.

These obligations are deeply rooted in the post-WWII evolution of international law, particularly the Nürnberg Principles[17], which established that individuals—including heads of state and de facto rulers—can be held criminally responsible for crimes under international law, including crimes against humanity. The Taliban’s systematic gender persecution squarely falls within this framework of individual accountability.

Policy Recommendations

To uphold international legal standards and ensure protection for Afghan women and girls, the following steps are essential:

1. Codify gender apartheid under international criminal law, drawing upon the Apartheid Convention (1973) and the Rome Statute’s evolving jurisprudence. The international community must no longer delay in formally recognizing and prosecuting systemic gender persecution.
2. Establish a UN investigative mechanism or special tribunal to document, investigate, and prosecute crimes by the Taliban regime. Lessons from the IIIM for Syria and the Commission of Inquiry on Myanmar must inform a similar mechanism tailored for Afghanistan[18].
3. Expand the use of universal jurisdiction, enabling national courts to try Taliban officials for international crimes. Germany’s and Argentina’s recent use of universal jurisdiction for Syrian war crimes offers an effective model[19].
4. Increase humanitarian access, with specific safeguards for women aid workers[20]. International aid must be conditioned on non-discriminatory distribution and monitored to prevent its capture by the regime.
5. Impose targeted sanctions under global Magnitsky laws against Taliban leaders responsible for systemic discrimination. Financial accountability can pressure compliance where diplomacy fails.
6. Link diplomatic recognition to human rights benchmarks, ensuring that no regime is normalized while violating fundamental rights. Governments must not send conflicting signals that recognition can be bought without reform.
7. Integrate gender rights into all peace negotiations, ensuring women’s full participation. Any future intra-Afghan dialogue must be inclusive and conditional upon commitments to international law and gender equality.
8. Mandate biannual reporting by the UN Secretary-General on the status of women and girls in Afghanistan. This will ensure consistent monitoring, mobilize pressure, and keep global attention on the crisis.

These actions are not just morally imperative; they are legally required. The longer the world waits, the more emboldened the Taliban becomes, and the more irreparable the damage to international legal norms.

Conclusion

The Taliban’s regime is a stark modern example of gender apartheid, violating Afghanistan’s constitutional guarantees and binding international treaties. By systematically excluding women and girls from all public life, it commits crimes that demand urgent accountability.

This is not merely repression—it is a deliberate, state-imposed erasure of half the population. Without decisive global action, international law risks becoming meaningless. Recognizing gender apartheid as a distinct international crime, and enforcing it through legal mechanisms, is both a moral and legal necessity.

The women and girls of Afghanistan have been rendered invisible by the Taliban. The international legal order now must ensure they are seen, heard, and protected.

Reference(S):

1. Constitution of the Islamic Republic of Afg. (2004).
2. Rome Statute of the Int’l Crim. Ct. art. 7(1)(h), July 17, 1998, 2187 U.N.T.S. 90.
3. Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (Sept. 2, 1998).
4. Bosnia & Herzegovina v. Serbia & Montenegro, Judgment, 2007 I.C.J. 43 (Feb. 26).
5. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
6. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.
7. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.
8. Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.
9. Convention on the Elimination of All Forms of Discrimination Against Women pmbl., Dec. 18, 1979, 1249 U.N.T.S. 13.
10. Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135.
11. C. Res. 1325, U.N. Doc. S/RES/1325 (Oct. 31, 2000).
12. Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), Judgment, 1970 I.C.J. 3 (Feb. 5).
13. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), Advisory Opinion, 1971 I.C.J. 16 (June 21).
14. Situation in Darfur, Sudan, Case No. ICC-02/05, Int’l Crim. Ct.
15. International Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 30, 1973, 1015 U.N.T.S. 243.
16. K. Parliament, Commons Library Briefing Paper No. 10215, Recent Developments in Afghanistan (Mar. 18, 2025).
17. N. Assistance Mission in Afg. (UNAMA), Human Rights Reports: 2021–2025.
18. Amnesty Int’l & Afghan Witness, Afghanistan 2024 Report.
19. Prosecutor v. Tadić, Case No. IT-94-1-T, Judgment (Int’l Crim. Trib. for the Former Yugoslavia May 7, 1997).
20. Prosecutor v. Kunarac, Case Nos. IT-96-23-T & IT-96-23/1-T, Judgment (Int’l Crim. Trib. for the Former Yugoslavia Feb. 22, 2001).
21. Prosecutor v. Krstić, Case No. IT-98-33-T, Judgment (Int’l Crim. Trib. for the Former Yugoslavia Aug. 2, 2001).
22. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/RES/217(III) (Dec. 10, 1948).
23. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331.
24. on the Elimination of Discrimination Against Women, General Recommendation No. 30, U.N. Doc. CEDAW/C/GC/30 (2013).
25. R v. Bow Street Metro. Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147 (H.L.) (U.K.).
26. Principles of Int’l Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, [1950] 2 Y.B. Int’l L. Comm’n 374, U.N. Doc. A/CN.4/SER.A/1950/Add.1.
27. A. Res. 71/248, U.N. Doc. A/RES/71/248 (Dec. 21, 2016).
28. N. Off. for the Coordination of Humanitarian Affs. (OCHA), Taliban Ban on Women Aid Workers Risks Collapse of Humanitarian Operations in Afghanistan (Dec. 2022), https://reliefweb.int/report/afghanistan/taliban-ban-women-aid-workers-risks-collapse-humanitarian-operations-afghanistan.
29. Ctr. for Const. & Hum. Rts. (ECCHR), Landmark Judgment: German Court Convicts Syrian Official for Crimes Against Humanity (Jan. 13, 2022), https://www.ecchr.eu/en/case/syria-torture-trial-in-germany/.
30. Human Rights Watch, Argentina Investigates Syria War Crimes Using Universal Jurisdiction (Sept. 2023), https://www.hrw.org/news/2023/09/28/argentina-investigates-syria-war-crimes-using-universal-jurisdiction.
31. Richard Bennett (Special Rapporteur), Report on the Situation of Human Rights in Afghanistan, U.N. Doc. A/HRC/52/84 (Mar. 6, 2023).

[1] U.N. Assistance Mission in Afg., Human Rights in Afghanistan: 2023 Report, U.N. Doc. A/HRC/52/49 (Mar. 2023).

[2] Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/RES/217(III), arts. 1–2 (Dec. 10, 1948); Convention on the Elimination of All Forms of Discrimination Against Women pmbl., Dec. 18, 1979, 1249 U.N.T.S. 13.

[3] Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/RES/217(III) (Dec. 10, 1948).

[4] Vienna Convention on the Law of Treaties art. 26, May 23, 1969, 1155 U.N.T.S. 331.

[5] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85; Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3; Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135.

[6] U.N. Assistance Mission in Afg. (UNAMA), Education under Attack in Afghanistan: Taliban Restrictions on Girls’ Education 3 (2023), https://unama.unmissions.org.

[7] United Nations Assistance Mission in Afghanistan (UNAMA), Women’s Rights in Afghanistan: 2022–2023 Report, U.N. Doc. A/HRC/52/49 (Mar. 2023); Amnesty International, Death in Slow Motion: Women and Girls Under Taliban Rule (July 2022), https://www.amnesty.org/en/documents/asa11/5618/2022/en/; Taliban Decree on Women’s Employment Ban, Ministry of Vice and Virtue, Dec. 24, 2022 (reported by HRW and UNAMA).

[8] Special Rapporteur on the Situation of Human Rights in Afg., Report on Gender Apartheid under the Taliban, U.N. Doc. A/HRC/53/21 (June 2023); Gissou Nia & Lisa Davis, Why Gender Apartheid Should Be Recognized as a Crime Under International Law, Just Sec. (Mar. 7, 2023), https://www.justsecurity.org/85413/why-gender-apartheid-should-be-recognized-as-a-crime-under-international-law/.

[9] Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment (Sept. 2, 1998).

[10] Prosecutor v. Tadić, Case No. IT-94-1-T, Trial Judgment (Int’l Crim. Trib. for the Former Yugoslavia May 7, 1997).

[11] Prosecutor v. Kunarac, Case Nos. IT-96-23-T & IT-96-23/1-T, Trial Judgment (Int’l Crim. Trib. for the Former Yugoslavia Feb. 22, 2001).

[12] Human Rights Watch, Afghanistan: Taliban Deprive Women of Basic Rights (Mar. 29, 2022), https://www.hrw.org/news/2022/03/29/afghanistan-taliban-deprive-women-basic-rights ; Afghan Witness, Tracking the Enforcement of Mahram Rules in Public Spaces (Nov. 2023), https://afghanwitness.org/en/mahram-enforcement-report-2023/.

[13] Prosecutor v. Krstić, Case No. IT-98-33-T, Trial Judgment (Int’l Crim. Trib. for the Former Yugoslavia Aug. 2, 2001).

[14] R v. Bow Street Metro. Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3) [2000] 1 AC 147 (HL) (UK).

[15] Richard Bennett (Special Rapporteur), Report on the Situation of Human Rights in Afghanistan, U.N. Doc. A/HRC/52/84 (Mar. 6, 2023).

[16] Comm. on the Elimination of Discrimination Against Women, General Recommendation No. 30, U.N. Doc. CEDAW/C/GC/30 (2013).

[17]Principles of Int’l Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, [1950] 2 Y.B. Int’l L. Comm’n 374, U.N. Doc. A/CN.4/SER.A/1950/Add.1.

[18] G.A. Res. 71/248, U.N. Doc. A/RES/71/248 (Dec. 21, 2016).

[19] Eur. Ctr. for Const. & Hum. Rts. (ECCHR), Landmark Judgment: German Court Convicts Syrian Official for Crimes Against Humanity (Jan. 13, 2022), https://www.ecchr.eu/en/case/syria-torture-trial-in-germany/ ; Human Rights Watch, Argentina Investigates Syria War Crimes Using Universal Jurisdiction (Sept. 2023), https://www.hrw.org/news/2023/09/28/argentina-investigates-syria-war-crimes-using-universal-jurisdiction.

[20] U.N. Off. for the Coordination of Humanitarian Affs. (OCHA), Taliban Ban on Women Aid Workers Risks Collapse of Humanitarian Operations in Afghanistan (Dec. 2022), https://reliefweb.int/report/afghanistan/taliban-ban-women-aid-workers-risks-collapse-humanitarian-operations-afghanistan.