Gender and Apartheid and International Law's Enforcement Failure: The case of Taliban-Controlled Afghanistan since 2021

Written by Shinwon Jeon

Edited by Doris (Rui) Peng

Shinwon is an undergraduate student at Sciences Po Paris, Le Havre Campus, studying political science. her academic interests include politics, law, and the humanities.

Introduction

Since the Taliban’s takeover in August 2021, Afghanistan has witnessed systematic violations of women’s rights, in direct contravention of binding obligations under international human rights treaties such as CEDAW and the ICCPR. The de facto authorities justify these violations through appeals to religious law and claims of state sovereignty, presenting them as internal matters beyond the reach of international oversight. The Taliban’s governance has transformed these violations into a legally enforceable system of gender-based discrimination, effectively creating a gender apartheid regime, in which normative, institutional, and coercive mechanisms operate to subordinate women and girls. This situation exposes not a lack of legal norms, but the structural limits of enforcement inherent in the international law. This article examines how the Taliban's internal governance, combined with the limitations in international law, explain the international community’s inability to respond effectively to these violations.

Part 1: The Illegitimacy of the Taliban’s Non-Compliance with Women’s Rights Obligations

A. Afghanistan’s Binding International Obligations

The Universal Declaration of Human Rights (UDHR), despite not having legally binding status, established equality as a universal legal principle and laid the foundation for international treaties, by guaranteeing equality, freedom, and human rights without any distinction based sex. Among the major treaties on women’s rights that Afghanistan signed and ratified was the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on 5 March 2003, which explicitly defines discrimination against women and imposes legally binding obligations by virtue of the principle of pacta sunt servunda applying to hard law treaties. International Covenant on Civil and Political Rights (ICCPR), ratified by Afghanistan on 23 January 1983, complements CEDAW to reinforce the legal framework for equality and women’s political participation in Afghanistan. For example, Article 3 of the Covenant states: “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.” 

Afghanistan’s ratification of these treaties reflects its consent and sincere commitment to undertake legally binding obligations to eliminate discrimination within its domestic territory by incorporating the principle of equality of men and women in the legal system, prohibiting discrimination, and establishing institutions and tribunals to ensure effective protection of women against discrimination. It enabled the inclusion of women’s rights provisions in the 2004 Constitution, which guarantees gender equality before the law. The Constitution also supported the creation of institutions such as the Ministry of Women’s Affairs and the Afghanistan Independent Human Rights Commission, designed to protect and monitor women’s rights. The right to equal access to education and career opportunities, essential for women’s participation in society and for their full development of human dignity, is guaranteed under Article 44 of the Constitution, complying with Article 10 of CEDAW, which ensures “the same conditions for career and vocational guidance, for access to studies, and for the achievement of diplomas in educational establishments of all categories (...).” 

Therefore, the ratified treaties require Afghanistan to recognize and provide effective protection of equal rights for women against discrimination by adopting necessary institutional measures. Yet, especially since 2021, these treaties face limitations, including weak enforcement mechanisms, which contribute to violations of women’s rights in Afghanistan.

B. The Taliban’s Institutionalization of Gender Discrimination through Normative, Institutional, and Coercive Mechanisms

Since the Taliban’s takeover in 2021, Afghanistan has systematically breached its treaty obligations by establishing a regime of institutionalized gender discrimination, amounting to a gender apartheid system. Despite not having a legal definition in any binding international treaty, the term “gender apartheid” has been applied in international criminal law under the Apartheid Convention and the Rome Statute to describe the systematic oppression of women and girls to maintain their subordination in society. 

First, without constitutional legality, the Taliban’s de facto authority produced discriminatory norms that assign women unequal and exclusive conditions. Since 2021, the constitutional order has been suspended and replaced with executive religious decrees and uncodified interpretations of Sharia under Emirate authority, illustrating a reconfiguration of legal authority. These norms are not produced from the legislative process, but are centralized and monopolized under executive authority. They operationalize regulations on women and girls by banning them from secondary and higher education, restricting access to employment, and limiting their freedom of movement. 

Furthermore, these norms are durably reproduced and enforced through institutional embodiment. The institutionalization of gender discrimination has consisted of excluding women from institutions and reorganizing institutional structures. The Supreme Court has been replaced by Sharia courts and religious councils that  refuse to hear cases challenging gender-based restrictions. This systemic denial of access to justice contradicts Article 2 of ICCPR, which requires States to adopt legislative measures guarantee rights without sexual discrimination and to ensure an effective remedy when they are violated. The courts’ absence of independence and impartiality also violates Article 14 of the ICCPR. The Ministry of Women’s Affairs and independent human rights bodies are abolished, while the Ministry of Education orders, Ministry  Higher Education and Ministry of Labor and Social Affairs to enforce gender segregation and exclusion in academic, public, and employment fields. 

Therefore, the Taliban did not merely violate women’s rights guaranteed under international treaties; they structured and organized gender inequality as a modality of rule to maintain the gender apartheid regime. 

C. The Invalidity of Sovereignty and Religious Justifications from the International Perspective 

The Taliban justify the systematic violation of women’s rights through a selective and conservative interpretation of Sharia and Hanafi jurisprudence: restrictions on women are framed as the fulfillment of religious duty to respect divine sovereignty. However, their religious justification is illegitimate under Article 18 (1) and (2) of the ICCPR. Religion is protected as an individual freedom, but it ceases to be a protected belief when it becomes a coercive state authority which violates fundamental human rights. Women are, by their legal personality grounded in inherent human dignity, equal legal subjects independent of belief, with “freedom of thought, conscience and religion”; therefore, they must not be subject to discrimination based on Islamist doctrinal authority, and their universally legal personality is irrelevant to the status hierarchy of men and women determined by the religious authority of the state.

The Taliban also invoke non-interference and state sovereignty: they claim to represent the Afghan state and that sovereignty, as an internally supreme and externally independent authority, protects their domestic decisions from foreign interference. However, from the international perspective, the Taliban government does not represent Afghanistan, and it possesses de facto authority which is distinct from state sovereignty due to its lack of legitimacy and recognition under international law. De facto sovereignty does not grant Afghanistan the full legal protection of non-interference. Moreover, neither sovereignty belonging to the Afghan State, national law, nor religion allows derogation from binding treaty obligations under Articles 26 and 27 of the VCLT, which announce the principle of pacta sunt servanda. The Afghan State is thus required to perform treaties in good faith regardless of changes in government, because the obligations themselves are the product of sovereign consent.

Consequently, the Taliban’s invocation of Islamic law and sovereignty cannot legally justify non-compliance with Afghanistan’s international obligations. While such claims retain domestic and political effects, they do not relieve the State of responsibility under international law. Serious breaches of peremptory norms engage the responsibility of Afghanistan and give rise to obligations of cooperation by the international community. 

Part 2: The structural gap between the international law and its enforcement  

1.  The Limit Inherent in International Law

International law lacks direct coercive mechanisms to enforce legal obligations within a domestic territory, revealing its structural contrast between legal validity and the absence of a centralized coercive authority. Article 2(1) of the Charter of the United Nations states: “The Organization is based on the principle of the sovereign equality of all its Members.” This principle implies a horizontal system coordinating all member states, which possess equal status in terms of their legal rights and obligations and enjoy equal juridical personality and independence. As a result, no state possesses legal authority over another, and enforcement functions are dispersed among individual states in the decentralized system. Even the implementation of jus cogens norms, which have the highest legal status and prohibits derogation under any circumstances, remains dependent on the decentralized state action: member states and international institutions must collectively respond to crimes through limited coercive measures and diplomatic pressure. 

Moreover, the principles of state sovereignty and non-intervention constrain the coercive enforcement of international law. External independence of sovereignty is grounded in the Article (2)7 of the UN Charter, which does not authorize the United Nations to intervene in affairs within the domestic jurisdiction of Afghanistan, even though this rule of non-intervention does not prevent the UN from taking enforcement action when international peace and security are threatened. This article protects Afghanistan’s exercise of self-government and political self-determination, which flow from its sovereignty and international legal personality. Thus, ratification of international treaties in Afghanistan does not automatically create the effective force of  domestic incorporation; it must be followed by the state’s consent and political will to make domestic incorporation effective. However, following the Taliban' s non-compliance of legal obligations, enforcement capacity is reduced to a symbolic measure. The suspension of the 2004 Constitution, the dismantling of domestic courts and ministries, and the absence of effective law enforcement have rendered Afghanistan’s international legal obligations incapable of practical implementation. 

B. The ICC’s jurisdictional, admissibility, and structural limits

1. Admissibility limits

The ICC, by its subsidiary character of jurisdiction, determines that a case is inadmissible under specific conditions: first, under Article 17 of the Rome Statute of the International Criminal Court, the case is inadmissible before the Court “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”; second, the case is not of sufficient gravity; and lastly, the accused has already been tried for the offence. Due to the collapse of the national judicial system, Afghanistan is unable to conduct national proceedings and recognize and prosecute crimes such as gender-based persecution, satisfying the principle of complementarity. However, the ICC Prosecutor’s obligation to demonstrate the domestic court’s unwillingness is a complex procedure, requiring case-specific evidence and the Taliban’s cooperation. Its admissibility is constrained by the Taliban’s control of the territory, which makes on-site investigations, collection of documentary and forensic evidence, and access to victims, witnesses and judicial records extremely difficult. The restricted access to evidence and resources reduces prosecution feasibility and admissibility.

2. Moreover, the Taliban’s non-cooperation blocks ICC’s jurisdiction.

The Taliban’s systematic violation of women’s rights satisfies the legal elements that define “crimes against humanity” under Article 7 (1)(h) of the Rome Statute. It constitutes a “requisite participation in and knowledge of a widespread or systematic attack against a civilian population (women),” implemented pursuant to the policies of the de facto authorities. Such measures—including “crimes against humanity of apartheid”, “sexual violence”, and  “severe deprivation of physical liberty”—could fall within the Court’s material jurisdiction. However, the legal qualification of these acts as crimes against humanity has not yet been adjudicated by the ICC due to structural constraints affecting admissibility, evidentiary access, and the Court’s capacity to enforce its jurisdiction in the absence of cooperation from the authorities. 

Furthermore, the ICC’s territorial jurisdiction presupposes a cooperative authority in control of the territory. Article 12 of the Rome Statute gives the ICC jurisdiction when the crime is committed on the territory of a State Party. Since Afghanistan ratified the Rome Statute in 2003, crimes committed on its territory fall within the Court’s jurisdiction. However, there is a structural gap between the ICC’s sovereignty-based jurisdiction and its sovereignty-dependent enforcement in Afghanistan due to the Taliban’s non-cooperation. Article 86 states that “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” In other words, the Court is designed to hold authorities accountable for international crimes, but it must depend on the de facto authorities to enforce and implement its decisions. This article demonstrates the horizontal nature of international law where sovereign states remain the primary holders of enforcement power. The Taliban’s non-recognition as the legitimate representatives of the Afghan state by many states adds complexity to this enforcement problem, contributing to jurisdictional paralysis.

C. The UN’s political and institutional limitations

The Security Council possesses primary responsibility for the maintenance of international peace and security under the Charter of the UN. Acting under Chapter VII, the Council may determine the existence of a threat to international peace and adopt binding measures intended to  “maintain or restore international peace and security,” including non-military sanctions and other forms of economic or political pressure. However, the exercise of this authority is structurally conditioned by the Council’s decision-making rules which require an affirmative vote of nine members, including the concurrence of its permanent members.

The Security Council’s legal authority remains constrained due to the use of veto power and the divergence of geopolitical interests among the State members. 

The veto power enables powerful permanent member states to block enforcement measures, even when there are clear legal mandates or international consensus on the need for action. It has been identified as a structural barrier that undermines the effectiveness of sanctions, allowing Afghanistan to evade consequences of its non-compliance with the Security Council resolutions. The UN Charter does not provide an exception to veto power for situations involving human rights violations or jus cogens norms, including the prohibition of discrimination and persecution. In 2022, a draft Security Council resolution condemning the Taliban’s human rights violations and imposing sanctions was blocked by China and Russia by using their veto power, which explains why the UN’s responses have been restricted to non-binding resolutions and monitoring mechanisms rather than coercive enforcement. Lastly, the divergent geopolitical interests prevent the formation of consensus. While Western permanent members—such as the United States, the UK, and France—prioritize human rights and counterterrorism, China and Russia emphasize regional stability and non-intervention. The persistent disagreements in the Security Council result in its inaction. 

Bibliography

United Nations. (n.d.). United Nations charter (full text). United Nations. https://www.un.org/en/about-us/un-charter/full-text#:~:text=Article%2027,affirmative%20vote%20of%20nine%20members. 

Elements of crimes. (n.d.). https://www.icc-cpi.int/sites/default/files/Publications/Elements-of-Crimes.pdf 

United Nations. (n.d.-a). Document viewer. United Nations. https://docs.un.org/en/CEDAW/C/AFG/4#:~:text=Afghanistan%20ratified%20the%20Convention%20on,women’s%20rights%20in%20the%20country. 

Afghanistan | International Criminal Court. (n.d.-a). https://www.icc-cpi.int/afghanistan 

International Covenant on Civil and Political Rights | Ohchr. (n.d.-c). https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights 

Vienna Convention on the law of treaties 1969. (n.d.-d). https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf 

Informal expert paper the principle of complementarity in practice. (n.d.-c). https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/20BB4494-70F9-4698-8E30-907F631453ED/281984/complementarity.pdf 

Qazi Zada, Sebghatullah et Mohd Ziaolhaq Qazi Zada. « The Taliban and women’s human rights in Afghanistan: the way forward », The international journal of human rights. 2024, vol.28 n^o 10. p. 1687‑1722.

United Nations. (n.d.). Rome Statute - Part 2. jurisdiction, admissibility and applicable law. United Nations. https://legal.un.org/icc/statute/99_corr/2.htm