The following article was published in the March 2026 special issue of the International Review of Contemporary Law, the journal of the IADL, marking International Women’s Day.
Justice and Accountability for the Women and Girls of Afghanistan
Introduction
Building on other articles in this Review, this contribution will provide an overview of the legal aspects of the judgement that was delivered in the People’s Tribunal on Women in Afghanistan. It will address the accused, the crimes charged, the applicable laws, and the findings of the Panel of Judges. During the hearings, some concerns were raised about the lack of—or minimal—international action to the situation facing women and girls in Afghanistan. Thus, it became important to also highlight a few aspects that might hold hope for justice and accountability – but which, unfortunately, have not moved beyond rhetoric in many instances. A review of some of these approaches confirms the view held by Afghan women, regarding the lack of substantive actions that reflect transformative and emancipatory approaches, in respect of justice and accountability and the promotion and protection of the human rights of women and girls.
The legal analysis was guided by internationally recognized laws, including international criminal law, international humanitarian law, customary international law, and the fundamental principles enshrined in international human rights treaties. Internationally recognized legal norms—including among others, the right to equality, dignity and the prohibition of discrimination on numerous grounds including sex and gender—provided the framework for analysis. The responsibility of the Panel of Judges was to ensure that the work was guided by the indictment, the testimonies we heard, research reports, other relevant documentation, and the applicable laws. In the drafting of the Judgement, the Panel of Judges was deeply cognisant of the need to be guided by the imperatives of recognition, representation, voice, agency, justice and accountability.
The Accused
The Indictment provides information on the accused, including: ten individual Taliban leaders; the Taliban as a group; and the State of Afghanistan under the Taliban’s de facto control.
The Prosecutors identified the Taliban as a group, and the ten identified individual leaders, as the principal perpetrators of a pattern of persecution that meets the threshold of the crime against humanity of gender persecution under Article 7(1)(h) of the Rome Statute of the International Criminal Court. It was further elaborated that the Taliban is not merely a de facto governing authority, but a perpetrator of a coordinated, state-level campaign of gender persecution, carried out with the intent to erase women from public life and to restructure Afghan society around male supremacy.
The listing of the State of Afghanistan as an accused party is premised on the Taliban de facto authorities’ engagement in a deliberate, systematic, and institutionalized campaign of repression targeting women, girls, and other marginalized groups in Afghanistan. It was asserted that such conduct is underpinned by a discriminatory ideology and is enforced through coercion and violence, thereby constituting multiple, serious violations of binding international human rights treaties to which Afghanistan remains a State Party.
The Charges and Responsibility
Count 1: The Taliban’s institutionalised discrimination against women amounts to gender persecution
The Prosecution submitted that the Taliban’s systematic persecution of women and girls in Afghanistan constitutes grave violations of international criminal law, amounting to crimes against humanity, particularly gender persecution under Article 7(1)(h) of the Rome Statute. Numerous sources confirmed that the Taliban have issued many decrees, edicts, directives, and statements, specifically targeting women and girls, which institutionalize discriminatory norms. It was argued that the Taliban’s intentional actions ‘systematically excludes women and girls from education, employment, public life, and freedom of movement’ and this constitutes gender persecution. The measures are applied and enforced by administrative structures, security forces, and religious committees, reflecting the existence of a policy of exclusion and control. As such, they meet the threshold of a crime against humanity under Article 7(1)(h) of the Rome Statute, which prohibits persecution “against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender (…) other grounds that are universally recognized as impermissible under international law”.
Based on the legal and policy analysis, and the facts and evidence, the policies and practices of the de facto Taliban authorities, since August 2021, constitute crimes against humanity of persecution on gender or other grounds that are universally recognised as impermissible under international law, which includes the ground of sex. The Taliban’s actions are driven by a discriminatory intent, fulfilling the mental element of the crime of persecution. The actions constitute an intentional and serious deprivation of the fundamental rights of women and girls, contrary to international human rights law, and form part of a widespread and systematic attack against the civilian population with knowledge of such attack. These crimes are committed in connection with other crimes against humanity: including murder, imprisonment, torture, and other inhumane acts.
The Panel of Judges determined that such policies and practices satisfy the legal definition of gender persecution under the Rome Statute. Individual leaders and the Taliban as a group, as the de facto governing authority, bear responsibility under international criminal law for a policy of gender-based persecution constituting crimes against humanity, under Article 7(1)(h) of the Rome Statute of the International Criminal Court.
Count 2: The Taliban’s actions amount to ‘other inhumane acts’ under the Rome Statute
The “other inhumane acts” is a catch-all clause included in International Criminal Tribunal Statutes to ensure accountability for any crime with sufficient gravity fulfilling the other conditions of a crime against humanity. The prosecution argued that ‘gender apartheid’ qualifies as ‘other inhumane acts’ under Article 7(1)(k) of the Rome Statute within the crimes against humanity category. It was acknowledged that ‘gender apartheid’ is a currently uncodified act.
The crime of apartheid is recognized in the Rome Statute in Article 7(1)(j) and only includes segregation on racial grounds and not on gender grounds. Therefore, the crime of ‘gender apartheid’ which is used to describe the situation of segregation of Afghan women and girls on gender grounds is not recognized as a crime against humanity in the Rome Statute as a separate crime, nor within the category of “other inhumane acts”.
The Panel of Judges acknowledged that the situation in Afghanistan meets the constitutive elements of an apartheid-like system – an institutionalized regime of segregation, exclusion, and domination. However, it was determined that because the discrimination is grounded in gender rather than race, it falls outside the codified definition of apartheid in international law, particularly in the Rome Statute and the Apartheid Convention. The codification of the crime of gender apartheid – whether in the proposed Crimes Against Humanity treaty; or through an amendment to the Rome Statute; or through an optional protocol to the Apartheid Convention; or through a new specific treaty – remains an important advocacy and standard-setting initiative. It is important to recognise that these are options that can be explored in the quest for codification of the crime of gender apartheid.
Count 3: The State of Afghanistan, under the Taliban’s de facto control, has violated the core human rights of women and girls in Afghanistan
The Prosecution included the State of Afghanistan, which is under the Taliban’s de facto control, with ongoing violations of Afghanistan’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention Against Discrimination in Education, the Convention on the Political Rights of Women, the Convention on the Rights of the Child, the Convention against Torture and other Cruel, Inhumane, Degrading Treatment or Punishment, and the Convention on the Rights of Persons with Disabilities.
Through numerous edicts and decrees, the Taliban have deprived the women and girls of various fundamental rights. The bans, decrees and policies adopted by the de facto Taliban authorities target women and girls by prohibiting and limiting their fundamental rights in almost all spheres of public and private life. The deprivation of fundamental rights is enforced through violent mechanisms, and with tools such as arbitrary detention, imprisonment, torture and other inhumane acts, rape and sexual violence, and enforced disappearances.
Under international human rights law, the Taliban have intentionally deprived women and girls of fundamental rights, including the right to life, the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, the right to personal liberty and security, the right not to be subjected to arbitrary detention, the right to education, the right to work, the right to health, freedom of expression, freedom of movement, freedom of association, the right to bodily autonomy, and the civil and political rights of participation. These violations of fundamental human rights of women and girls are perpetrated by the de facto authorities through numerous decrees, bans and policies based on sex and gender discrimination and constitute a violation of binding obligations.
The Panel of Judges asserts that the ongoing, unpunished human rights violations in Afghanistan have far-reaching implications beyond national borders and effectively undermine the universality of human rights and the integrity of the international legal order. It determines that the de facto Taliban authorities have violated Afghanistan’s binding obligations under international human rights treaties to which Afghanistan is a State Party.
Other Justice and Accountability Initiatives
As noted above, due to concerns raised about the lack of effective action by the international community, the legal section of the judgement highlighted a few initiatives, including the importance of the critical work emanating from civil society broadly which serves to inform dialogues on justice and accountability.
International criminal law developments through the International Criminal Court (ICC), through the issuing of two arrest warrants, is an attempt at addressing individual criminal responsibility for alleged violations in response to the deliberate, systematic, and institutionalized campaign of gender-based persecution carried out by the Taliban de facto authorities against women and girls in Afghanistan. The crime alleged is Persecution as a Crime Against Humanity affecting women, girls, persons whom the Taliban perceived as not conforming with their ideological expectations of gender identity and expression, and persons whom the Taliban perceived as allies of girls and women, contrary to Article 7(1)(h) of the Rome Statute. The acts that are connected to persecution of women include murder, imprisonment, torture, rape and other forms of sexual violence, enforced disappearances, and other inhumane acts.
Domestic prosecutions utilising the principle of Universal Jurisdiction is another important mechanism to address justice and accountability. Universal Jurisdiction is a legal principle which empowers national courts to prosecute cases involving serious violations of international law, which affects the international community as a whole, regardless of where these crimes were committed or the nationality of the perpetrator. The foundation of the principle rests on the shared interests of all nations to apprehend alleged perpetrators, including for crimes against humanity broadly. In the case of Afghanistan, the Universal Jurisdiction principle can be used to investigate and prosecute individuals for crimes that fall within international law frameworks, including crimes against humanity, particularly gender persecution. There is no indication that any other State with jurisdiction is investigating any Taliban individuals for their criminal conduct described above.
The International Court of Justice (ICJ) can adjudicate disputes concerning any question of international law and the existence of any fact which, if established, would constitute a breach of an international obligation. The court has wide and general subject matter jurisdiction in respect of international human rights enforcement. There is a possibility of a contentious case being filed in the ICJ regarding the numerous violations of State obligations, by the State of Afghanistan, particularly those linked to the CEDAW. In September 2024, in the margins of the UN General Assembly, a formal request was made by Australia, Canada, Germany and the Netherlands addressed to the Taliban de facto authorities to comply with Afghanistan’s CEDAW obligations. This action was soon supported by 22 other States. The lack of adherence to CEDAW obligations are considered obligations owed by the State of Afghanistan to all other State Parties to CEDAW (obligations erga omnes partes). Article 29 requires state parties to any dispute not settled by negotiation within six months, to resort to arbitration at the request of one of them. If within six months from the date of the request for arbitration, the parties are unable to agree on the organisation of the arbitration, they may refer the dispute to the ICJ, in an attempt to pursue state accountability. Once the case is accepted by the ICJ, the court can order provisional measures to prevent further harm while proceedings are ongoing. There is no publicly available information regarding the negotiation and arbitration measures that have been undertaken by the four States, despite the passage of almost 17 months since the intervention was announced. In addition, no referral has been made to the ICJ.
The work of United Nations mechanisms and agencies regarding the human rights situation in Afghanistan, as well as the most recent Human Rights Council resolution on creating a new independent investigative mechanism, provides further information on the justice and accountability work of the UN system. The substantial and substantive work of UN mechanisms and agencies provides a comprehensive documentation database that can be utilised in dialogues within the Security Council, The General Assembly, The Human Rights Council, the Secretary-General’s office and the office of the High Commissioner for Human Rights. The logical conclusion is that Member States have access to credible information on the widespread and pervasive human rights violations occurring in Afghanistan, thereby necessitating responses regarding the violation of obligations owed to the international community as a whole. Unfortunately, some of the testimonies presented during the hearings reflect concerns about the slow or non-existent actions by Member States regarding justice, accountability and transformative change, for the women of Afghanistan.
The demands by civil society organisations, to address the normative gap in international law, on the issue of ‘gender apartheid’, and the gaps and/or limitations of existing frameworks to comprehensively address all manifestations of gendered harms, is another initiative in the quest for justice and accountability. Experiences of women in some countries have noted the universality of aspects of the struggles against pervasive, systematic and institutionalised gendered harms. The necessity for international and domestic law recognition of the crime of gender apartheid has reignited discussions and campaigns to end gender apartheid. Analysing the provisions of the Apartheid Convention and the Rome Statute has led to discussions on the inadequacy of existing legal frameworks to address the systematic, systemic and institutionalised nature of gendered oppression, subjugation and discrimination, as well as the specific intent to maintain such a regime – as visible in the experiences of women in some parts of the world, more especially currently in Afghanistan. The description of such experiences as qualifying in form and content as gender apartheid is an attempt to advocate for the closing of the protection gap in international and domestic law, through the codification of such a crime. During the General Assembly Sixth Committee meeting on a comprehensive treaty on crimes against humanity held in April 2024, ten Member States expressed their openness to exploring the codification of the crime of gender apartheid in the proposed treaty. The codification of the crime of gender apartheid – whether in the proposed Crimes Against Humanity treaty; or through an amendment to the Rome Statute; or through an optional protocol to the Apartheid Convention; or through a new specific treaty – remains an important advocacy and standard-setting initiative.
The conclusion is that there exist numerous initiatives with a focus on the situation in Afghanistan broadly and on the human rights of women in particular. The need for international institutions and mechanisms, and Member States to move beyond rhetorical statements, to meaningful action, is crucial in the quest for transformative change, justice and accountability, and the promotion and protection of human rights. The applicability of principles of erga omnes, erga omnes partes and jus cogens govern the framing of State obligations. Erga omnes means ‘towards everyone’ and it refers to obligations that a State owes to the international community as a whole. Erga omnes partes refers to obligations that a State Party to a treaty owes to all other State Parties to that treaty. Jus cogens refers to norms that are legally applicable to all States, and no derogation is permitted as such norms are regarded as obligations inherently owed to the international community as a whole. This requires utilising the abovementioned principles to articulate State responsibility of the international community as a whole, including States Parties to relevant human rights treaties, due to the violations being perpetuated by the de facto authorities in Afghanistan. Failure at the domestic level, requires action by the international community to uphold responsibilities linked to such principles which govern the framing of State obligations.
Professor Emerita Rashida Manjoo
Professor Rashida Manjoo is Professor Emeritus at the University of Cape Town, where she taught for many years in the Faculty of Law and convened the LLM program on human rights. From 2009 to 2015, she served as the United Nations Special Rapporteur on Violence against Women, its Causes and Consequences, a mandate that took her across the world to investigate, document, and report on systemic gender-based violence and state accountability.
In South Africa, Professor Manjoo also served as a parliamentary commissioner on the Commission for Gender Equality, a constitutional institution mandated to promote and protect gender equality and women’s rights. She was instrumental in developing and leading social context training for judges and lawyers, designing both the content and methodology to strengthen justice delivery in cases of gender-based violence.
Her scholarship, public service, and advocacy reflect decades of dedication to advancing women’s human rights globally and locally. She continues to be recognized as a leading authority on gender justice, shaping international and national debates on law, policy, and equality.
All articles published in the International Review of Contemporary Law reflect only the position of their author and not the position of the journal, nor of the International Association of Democratic Lawyers.