From Persecution to Apartheid: The ICC’s Next Legal Frontier for Women’s Rights – Opinio Juris

Report on International Legal Responses to Gender-Based Oppression in Afghanistan and Implications for Sustainable Development Goals

1.0 Introduction: A Challenge to the 2030 Agenda

Recent legal proceedings concerning the governance of Afghanistan present a critical challenge to the international community’s commitment to the 2030 Agenda for Sustainable Development. The issuance of arrest warrants by the International Criminal Court (ICC) in July 2025 and the findings of the People’s Tribunal for the Women of Afghanistan in October 2025 highlight a system of gender-based oppression that fundamentally undermines key Sustainable Development Goals (SDGs), particularly SDG 5 (Gender Equality) and SDG 16 (Peace, Justice and Strong Institutions). This report analyzes these developments and the doctrinal gap in international criminal law concerning “gender apartheid,” assessing its impact on achieving global development targets.

2.0 Systematic Violations of SDG 5: Gender Equality

The policies enacted in Afghanistan represent a systematic and institutionalized reversal of progress on SDG 5, which aims to achieve gender equality and empower all women and girls. The regime’s governance structure is organized around gender hierarchy, creating profound barriers to sustainable development.

2.1 Institutionalized Discrimination and Gender Apartheid

• Over 100 formal decrees have been implemented to exclude women and girls from public life, directly contravening SDG Target 5.1 (End all forms of discrimination against all women and girls everywhere).
• These decrees bar women from education, employment, and freedom of movement, constituting what civil society and legal experts have termed “gender apartheid”—an institutionalized regime of systematic oppression by one gender over another.

2.2 Impact on Interconnected SDGs

The assault on gender equality has cascading negative effects on other critical SDGs:

• SDG 4 (Quality Education): The prohibition of female education dismantles progress toward ensuring inclusive and equitable quality education for all.
• SDG 8 (Decent Work and Economic Growth): The exclusion of women from the workforce cripples economic potential and violates principles of full, productive employment and decent work for all.
• SDG 10 (Reduced Inequalities): The regime’s policies create an extreme form of gender-based inequality, directly opposing the goal of reducing inequality within countries.

3.0 The Role of International Justice in Upholding SDG 16

SDG 16 calls for the promotion of peaceful and inclusive societies, access to justice for all, and effective, accountable institutions. The international legal response to the situation in Afghanistan tests the efficacy of these global institutions.

3.1 The International Criminal Court’s Response

The ICC’s arrest warrants for Taliban leadership on charges of gender persecution mark an unprecedented step in holding individuals accountable. This action supports SDG Target 16.3 (Promote the rule of law at the national and international levels and ensure equal access to justice for all). However, the legal framework applied has limitations:

• The charge of “gender persecution” addresses individual acts of oppression but fails to criminalize the underlying legal and institutional system of domination itself.
• This exposes a doctrinal gap in the Rome Statute, which recognizes racial apartheid as a crime against humanity but is silent on gender apartheid, thereby weakening the international justice architecture.

3.2 Civil Society and Multi-Stakeholder Partnerships (SDG 17)

The People’s Tribunal for the Women of Afghanistan, convened by a coalition of civil society organizations, exemplifies the importance of multi-stakeholder partnerships (SDG 17) in advancing justice. While lacking coercive power, such tribunals play a crucial role by:

• Filling an accountability vacuum left by formal legal systems.
• Developing the normative and conceptual framework for recognizing gender apartheid as an international crime.
• Reframing the issue from one of individual human rights violations to one of regime-level criminality, thereby strengthening the case for robust institutional responses under SDG 16.

4.0 Pathways to Legal Reform for Sustainable Development

Closing the doctrinal gap in international law is essential for ensuring accountability and achieving the targets of SDG 5 and SDG 16. Codifying gender apartheid as a crime against humanity would align the Rome Statute with the core principles of equality and non-discrimination that underpin the 2030 Agenda. Two primary pathways for this reform have been identified:

1. Interpretive Development: The ICC could utilize Article 21(3) of the Rome Statute, which mandates interpretation consistent with internationally recognized human rights, to read the existing definition of apartheid as encompassing domination on the grounds of gender. This would align the Statute with the evolving customary international law norm of equality.
2. Textual Amendment: States Parties to the Rome Statute could amend Article 7(1) to explicitly include gender apartheid as a crime against humanity. This would provide legal clarity, send a powerful expressive message, and ensure that the law can directly confront state-sponsored systems of gender-based subjugation.

5.0 Conclusion and Recommendations

The systematic oppression of women and girls in Afghanistan is not merely a human rights crisis; it is a fundamental impediment to sustainable development. The failure of international criminal law to explicitly recognize and codify gender apartheid perpetuates a hierarchy of oppressions and limits the tools available for ensuring accountability, a cornerstone of SDG 16. To uphold the commitments of the 2030 Agenda, particularly SDG 5 and SDG 16, the international community must advance the legal recognition of gender apartheid. This will ensure that international justice mechanisms can effectively confront and prosecute the architects of regimes built on gender-based domination, calling the crime by its rightful name and affirming the principle of equality for all.

Analysis of Sustainable Development Goals in the Article

1. Which SDGs are addressed or connected to the issues highlighted in the article?

• SDG 5: Gender Equality – This is the central theme of the article, which focuses on the systematic, institutionalized gender-based discrimination and oppression by the Taliban regime, described as “gender apartheid.”
• SDG 16: Peace, Justice and Strong Institutions – The article extensively discusses the role of international legal institutions like the International Criminal Court (ICC), the limitations of the Rome Statute, and the pursuit of accountability and justice for crimes against humanity.
• SDG 4: Quality Education – The article explicitly mentions that the Taliban’s decrees bar women and girls from education, directly connecting to this goal.
• SDG 8: Decent Work and Economic Growth – The exclusion of women from employment is cited as a key component of the Taliban’s oppressive system, linking the issue to economic rights and participation.

2. What specific targets under those SDGs can be identified based on the article’s content?

1. SDG 5: Gender Equality

   • Target 5.1: End all forms of discrimination against all women and girls everywhere. The article describes the Taliban’s rule as an “institutionalised regime of systematic oppression and domination by one gender over another,” which is the most extreme form of discrimination targeted by this goal. The discussion of “over 100 formal edicts” that exclude women from public life directly relates to this target.
   • Target 5.5: Ensure women’s full and effective participation and equal opportunities for leadership at all levels of decision-making in political, economic and public life. The article highlights the complete violation of this target by stating that the Taliban’s decrees are “weaponised to erase women from public life” and criminalize their “presence in public spaces.”
   • Target 5.c: Adopt and strengthen sound policies and enforceable legislation for the promotion of gender equality. The article discusses this target from a reverse perspective. It analyzes how the Taliban has created a legal framework for gender inequality and argues for strengthening international law (the Rome Statute) to create “enforceable legislation” against gender apartheid, thus holding individuals criminally liable.

2. SDG 16: Peace, Justice and Strong Institutions

   • Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all. The article is centered on this target. It examines the “doctrinal blind spot” in the international rule of law (the Rome Statute) and highlights efforts to ensure access to justice through the ICC’s arrest warrants and the People’s Tribunal, which provides a platform for testimony from Afghan women.
   • Target 16.a: Strengthen relevant national institutions… to prevent violence and combat… crime. The article implicitly points to the complete failure of national institutions in Afghanistan to protect women, necessitating the intervention of international justice mechanisms. The call to amend the Rome Statute is a direct call to strengthen international institutions to combat these specific crimes against humanity.

3. SDG 4: Quality Education

   • Target 4.5: By 2030, eliminate gender disparities in education and ensure equal access to all levels of education and vocational training for the vulnerable… The article directly references the violation of this target by stating that the “Taliban’s decrees bar women from education,” which constitutes a complete elimination of access and the creation of an absolute gender disparity.

4. SDG 8: Decent Work and Economic Growth

   • Target 8.5: By 2030, achieve full and productive employment and decent work for all women and men… The article mentions that the Taliban’s edicts “exclude women from… employment,” which is a direct contravention of the goal of achieving full and productive employment for women.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

1. SDG 5: Gender Equality

   • Indicator 5.1.1: Whether or not legal frameworks are in place to promote, enforce and monitor equality and non-discrimination on the basis of sex. The article provides a clear, negative indicator: the existence of “over 100 formal edicts” by the Taliban that legally enforce gender discrimination. A positive measure of progress would be the repeal of these decrees and the amendment of the Rome Statute to explicitly codify “gender apartheid” as a crime.

2. SDG 16: Peace, Justice and Strong Institutions

   • Implied Indicator: Number of international arrest warrants issued and prosecutions for gender-based crimes against humanity. The issuance of arrest warrants by the ICC for Taliban leaders on charges of “persecution on gender grounds” is a direct indicator of international justice mechanisms taking action. The article argues that codifying gender apartheid would strengthen this measure of accountability.
   • Implied Indicator: Existence and recognition of legal frameworks to address systematic gender oppression. The article points to the “doctrinal silence” of the Rome Statute on gender apartheid as a key deficiency. The progress indicator would be the formal recognition of gender apartheid in international law, either through “Interpretive Development” or a “Textual Amendment” to the statute.

3. SDG 4 & SDG 8: Quality Education & Decent Work

   • Implied Indicator: Number of laws and decrees restricting women’s access to education and employment. The article cites “over 100 formal edicts” as evidence of the system of oppression. This number serves as a direct, quantifiable indicator. Progress would be measured by the reduction and eventual elimination of these restrictive decrees.

4. Table of SDGs, Targets, and Indicators

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