The Constitutional Pal

Afghanistan, Women, International Laws & Customs - A War for Gender Apartheid

The introduction to this would be a remiss. Since the Taliban’s return to power, from at least 15 August 2021, Afghan women have faced severe restrictions on education, employment, mobility, and public life, amounting to a complete erasure of women from society. Since then, there has been a series of decrees and orders squeezing out the basic human rights and freedoms of Afghan women and girls, obstructed their social and public existence and participation in Afghan society. The Taliban, amongst many other steps, have:

The heinous crimes against women and girls committed by any group, any government in the world have been reduced to either isolated incidents of persecution or mere cultural practices, rather than being recognized for what they truly are—systematic, institutionalized oppression amounting to gender apartheid and crimes against humanity. This minimization of gender-based atrocities has allowed oppressive regimes, such as the Taliban in Afghanistan, to operate with impunity, disregarding the very international treaties they have ratified. It is imperative that the global community acknowledges and addresses these violations not as separate human rights abuses, but as an entrenched system of domination that demands urgent legal and diplomatic action.

Proper, tangible legal action that would put these atrocities in the black-and-white map of legislations and justice—leading to rooting these actions as deplorable, condemnable, and unequivocally punishable under international law—is not just a moral necessity but a legal obligation. Without explicit recognition and enforcement mechanisms, such crimes will continue under the guise of sovereignty, culture, or political instability. The failure to act decisively not only emboldens perpetrators but also weakens the very foundations of international human rights frameworks and human society. It is time to move beyond statements of condemnation and toward concrete legal accountability, ensuring that gender apartheid is prosecuted with the same gravity as racial apartheid and other crimes against humanity.

Gender Apartheid vs. Gender Persecution

Gender apartheid refers to the state-enforced segregation and oppression of women based solely on their gender. Gender apartheid, itself as a crime against humanity is not codified in any international law. Most discussed definition of it is given by feminist Phyllis Chesler who defines it as a phenomenon where "practices which condemn girls and women to a separate and subordinate sub-existence and which turn boys and men into the permanent guardians of their female relatives' chastity".

One can argue that what is happening to women and girls in Afghanistan is not just persecution but meets the threshold for gender apartheid. For understanding the scope through a legal lens, we need to construct the scope and understanding of “persecution” and “apartheid” from how it is defined in the Rome Statute.

Article 7: Crimes against Humanity

Persecution 

Article 7(1)(h): Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court .

Article 7(2)(g): “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.

It involves the intentional and severe deprivation of fundamental rights based on group identity (e.g., gender). In Afghanistan, women and girls are deprived of education, employment, freedom of movement, and participation in public life solely because of their gender.

Gender Apartheid 

Article 7(1)(j): The crime of apartheid

Article 7(2)(h): “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.

It requires systematic oppression and domination by one group (men) over another group (women) within an institutionalized regime designed to maintain this domination. The Taliban’s policies (banning women from universities, workplaces, public spaces, and enforcing strict gender segregation) institutionalize male supremacy and sustain a system of gender-based oppression. Since it also refers to paragraph 1, we need to look at Article 7(1), which lists inhumane acts that constitute crimes against humanity. Some of those acts from Article 7(1) that are relevant to gender apartheid in Afghanistan include:

Since Article 7(2)(h) states that apartheid includes acts similar to those in paragraph 1, and since the Taliban’s oppression of women involves multiple inhumane acts listed in Article 7(1), it fits the legal definition of apartheid—except instead of racial domination, it is gender-based domination. Thus, referencing Article 7(1) strengthens the argument that Afghanistan’s situation is not just persecution but meets the threshold of gender apartheid, a systematic, institutionalized form of oppression aimed at maintaining male dominance over women.

Stratification of Injustice

Persecution is a part of apartheid because persecution involves the intentional and severe deprivation of fundamental rights of a group based on identity, which is also a core mechanism of apartheid. If we view apartheid as the "set", it encompasses systematic oppression and domination by one racial group over another, carried out through various inhumane acts. One of those inhumane acts is persecution, which specifically targets a group by denying them fundamental rights in violation of international law. Since apartheid requires sustained persecution—such as denial of citizenship, segregation, and economic oppression—to maintain racial domination, persecution naturally fits within apartheid as a subset. Apartheid cannot exist without persecution, but persecution can exist independently (e.g., persecution based on religion or political beliefs, not necessarily racial oppression). 

Persecution can be episodic or targeted at specific individuals or subgroups, but apartheid is a structured system designed to uphold dominance permanently. The Taliban's laws and governance model create an entrenched system where women are permanently second-class citizens, stripped of fundamental rights not temporarily, but systematically. The policies are not isolated acts but part of a comprehensive framework of oppression, fitting the "institutionalized regime" requirement of apartheid.

Treaties, Resolutions, International Customs Ignored?

The Taliban-controlled Afghanistan is violating multiple international treaties that Afghanistan had ratified before the Taliban’s takeover in August 2021. Their legal set-up to chain back women and girls is in violation of multiple legally binding international treaties that Afghanistan remains a party to. Their actions—gender apartheid, persecution, enforced disappearances, and torture—are not only domestic human rights violations but breaches of international law. Despite the Taliban not being officially recognized as the legitimate government, Afghanistan as a state remains bound by these treaties under customary international law, which is as legally binding as treaty law.

Afghanistan ratified

committing itself to upholding women’s rights in all aspects of life. Any due diligence conducted for the human rights, the four parameters are respect, prevent, protect, and fulfill. These principles form the foundation of State responsibility and accountability under international treaties.

Due Diligence

Mechanisms for Movement

CEDAW is a robust international legal instrument that has been brought into place to approach and eliminate the discrimination against women in the world in the most holistic manner possible. It, not only recognizes the various interplaying facets of an extremist patriarchal regime authoratating and discrimating against women but has an actionable approach resolve these conflicts and making other States possible, dutiful parties. Australia, Canada, Netherlands, Germany has decided to hold Afghanistan and the de facto Taliban government responsible for violations of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). CEDAW Committee, under Article 22 of the Convention, may invite the specialized agencies to submit reports on the implementation of the Convention in areas falling within the scope of their activities.It has the power to engage with specialized UN agencies such as UN Women, UNESCO, UNICEF, and the ILO to assess and report on the Taliban’s discriminatory policies. These reports can be used to:

The involvement of multiple State parties in bringing this complaint under CEDAW further legitimizes the claim that what is happening in Afghanistan is not just persecution, but systematic gender apartheid. If upheld by the CEDAW Committee, this could serve as a legal and diplomatic foundation for broader international actions, including potential UN General Assembly resolutions and international criminal proceedings.

The Special Rapporteur on Human Rights in Afghanistan can investigate and report to the UN Human Rights Council (HRC) for sanctions. Mr. Richard Bennett was appointed as the Special Rapporteur on the situation of human rights in Afghanistan. His latest report, Study on the so-called “Law on the Promotion of Virtue and the Prevention of Vice” - Advance unedited version, rightfully uses the word “apartheid” for Taliban is committing against women in Afghanistan and calls for codification of gender apartheid in international laws.

The ICC has jurisdiction over Afghanistan (ratified in 2003), meaning investigations can proceed. ICC Prosecutor, Karim Khan, has filed application for arrest warrants against the Supreme Leader of Taliban Hibatullah Akhundzada and Chief Justice of the “Islamic Emirate of Afghanistan”, Abdul Hakim Haqqani on the grounds that they bear responsibility for the crime against humanity of persecution on gender grounds, under article 7(1)(h) of the Rome Statute. But, ICC does not have a police force of its own. Under Article 59, it relies upon member States to make the arrest and bring him before their judicial authorities who will verify the details of the arrest and if they are in alignment of the arrest warrant.

Despite the unambiguous and systemic violations of women’s rights, the UN and it’s agencies have failed to declare Afghanistan’s situation as gender apartheid. Instead, the response has been limited to statements of condemnation and calls for dialogue—a stark reminder that will be remembered in history. CEDAW, as the primary international treaty protecting women's rights, often known as Bill of Rights for Women, has mechanisms to hold states accountable, including inquiry procedures and urgent interventions. Yet, no action has been taken by its Committee against Afghanistan’s de facto rulers that would hinder this continuous, organized, international crime against humanity.

Official recognition of gender apartheid in Afghanistan would have significant legal and diplomatic consequences that will make a path for progress and develop a faith that there is a well-oiled machinery present to guard and ensure our basic human rights that is intrinsically present in all of human beings. It would classify Taliban rule as a crime under international law, opening pathways for accountability. It would pressure global governments and institutions to impose sanctions and legal actions against those enforcing gender-based oppression. It would shift the narrative from a "human rights crisis" to an urgent legal and moral emergency, compelling stronger responses from the international community. It would also establish a crucial precedent, ensuring that gender apartheid is not dismissed as a mere cultural or political issue but is instead recognized as a systematic crime that demands international intervention. By codifying gender apartheid within the framework of international law, it would empower human rights organizations, legal bodies, and advocacy groups to pursue justice through mechanisms such as the International Criminal Court (ICC) and the United Nations Security Council (UNSC). Furthermore, it would provide a legal basis for asylum and refugee protections for Afghan women and girls fleeing persecution, reinforcing the principle that no government or regime has the right to strip half its population of their fundamental freedoms. Ultimately, this recognition would serve as a foundation for dismantling oppressive structures, ensuring that gender-based tyranny is treated with the same severity as racial apartheid and other crimes against humanity, paving the way for real, enforceable change. 

The failure to officially recognize Afghanistan’s gender apartheid sends a dangerous message: that women’s rights violations on this scale can be ignored. The UN, it’s agencies must act decisively—either by enforcing their own treaty obligations or acknowledging their failure to do so. The world cannot stand by while Afghan women are erased from society. The time for mere condemnation has passed. The time for legal action is now.

#gender apartheid