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

[Axana Soltan is an international lawyer and legal scholar specializing in international criminal law, human rights, and gender justice. She is a U.S.  Eisenhower Scholar at the University of Oxford and is a Global Affiliate of the Watson Institute for International and Public Affairs at Brown University]

Author’s Note: I thank Nuzaina Khan for her valuable research assistance; all views are my own.

In July 2025, the International Criminal Court’s Pre-Trial Chamber II issued arrest warrants for Taliban leader Haibatullah Akhundzada and Chief Justice Abdul Hakim Haqqani on charges of crimes against humanity, including persecution on gender grounds. Three months later, on 8 October 2025, the People’s Tribunal for the Women of Afghanistan—convened by a coalition of Afghan civil-society organisations—heard testimony from Afghan women and girls and examined evidence framing the Taliban’s rule as a system of gender persecution amounting to gender apartheid.

Together, these proceedings mark a pivotal moment: the first time the international legal community has treated the Taliban’s governance as a regime-level system of gender-based oppression. Yet they also expose an enduring doctrinal silence. The Rome Statute recognizes racial apartheid as a crime against humanity, but remains mute on gender apartheid—a legally engineered regime of domination by one gender over another. The question now confronting international criminal law is both simple and profound:

Can the law confront the Taliban’s architecture of subjugation without naming gender apartheid as the crime it constitutes?

A Doctrinal Blind Spot

Article 7(2)(h)of the Rome Statute defines apartheid as “inhumane acts … committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other.” By confining apartheid to race, the Statute leaves a structural gap. Gender persecution under Article 7(1)(h) prohibits severe deprivation of rights on gender grounds but treats such deprivations as derivative—acts committed in connection with other crimes. Apartheid, by contrast, criminalises the regime itself: the legal and institutional framework that sustains domination, even in peacetime.

When the Taliban’s decrees bar women from education, employment, and movement, these are not isolated violations; they are expressions of a governance system organised around gender hierarchy. Existing law can prosecute acts within that system but not the system itself. The consequence is conceptual asymmetry: international criminal law condemns racial domination as a crime against humanity but relegates gender domination to the margins of persecution.

From Persecution to Apartheid

The ICC’s July 2025 warrants for Akhundzada and Haqqani rely primarily on gender persecution, alleging that Taliban policies since 2021 constitute a “widespread or systematic attack” on women and girls. That charge is doctrinally sound and unprecedented—the Court has never prosecuted persecution on gender grounds at this scale. But it is also constrained: persecution captures the symptoms of structural oppression, not its legal design.

The Taliban’s decrees demonstrate intentional state engineering of subordination: over 100 formal edicts exclude women from education and work, enforce guardianship, and criminalise presence in public spaces. Each decree is an act of governance, not merely of discrimination. To characterise this only as persecution risks obscuring the nature of the wrong: a state whose organising principle is gender inequality.

Here, the language of gender apartheid—long invoked by Afghan and Iranian women’s rights defenders—provides the missing legal vocabulary. It describes a regime of institutionalised oppression and domination by one gender over another, implemented through law, policy, and coercive structures. This definition mirrors Article 7(1)(j)’s elements; only the protected category differs.

The People’s Tribunal and Civil Accountability

The Madrid hearings of the People’s Tribunal for Women of Afghanistan illustrate how civil society is stepping into the legal vacuum. Composed of international judges, prosecutors, and Afghan witnesses, the Tribunal applies the Apartheid Convention (1973) and the Rome Statute by analogy, arguing that the Taliban’s regime constitutes gender apartheid.

People’s tribunals have no coercive power, but historically they have expanded the interpretive horizon of international law—the 1966 Russell Tribunal on Vietnam and the 1979 Tokyo Women’s Tribunal on military sexual slavery both anticipated later legal recognition.

The Madrid proceedings thus function as a laboratory of law: they test whether the normative logic of apartheid, once confined to race, can and should extend to gender.

By placing the Taliban’s governance alongside South Africa’s apartheid, the Tribunal reframes the conversation from individual atrocities to regime criminality. Its evidentiary record—official decrees, interviews, and UN findings—may eventually inform ICC or UN mechanisms, but its greater contribution is conceptual: affirming that gender apartheid is a cognisable international crime awaiting codification.

Why Human Rights Law Is Not Enough

Human-rights instruments such as CEDAW and the ICCPR prohibit gender discrimination. Yet their enforcement mechanisms are dialogic—reporting, review, and recommendation—not punitive. They address state responsibility but not individual criminal liability.

When an entire regime is structured on gender exclusion, this dialogic model reaches its limit. The architects of that system are not merely violating rights; they are committing crimes against humanity. Only international criminal law can impose personal accountability for designing and maintaining such a regime.

This distinction mirrors the evolution of racial apartheid: decades of human-rights condemnation did not end the South African system. It was criminal accountability—through domestic prosecutions and the Rome Statute’s codification—that declared apartheid a crime of universal concern.

Legal Pathways to Codification

Two routes exist to close the gender gap in the Rome Statute:

1. Interpretive Development under Article 21(3)

This provision mandates that the Statute be interpreted “consistent with internationally recognised human rights.” A purposive reading could allow the Court to interpret “apartheid” in Article 7(1)(j) as encompassing regimes of domination based on any prohibited ground, including gender. Such an interpretation would align with evolving norms of non-discrimination and the jus cogens status of equality.

However, interpretive evolution depends on judicial willingness and prosecutorial framing—factors that vary from case to case.

2. Textual Amendment under Article 121

States Parties could propose an amendment adding a new sub-paragraph to Article 7(1):

(j bis) Gender apartheid means an institutionalised regime of systematic oppression and domination by one gender over another, committed with the intention of maintaining that regime.

This route provides clarity and expressive condemnation. It follows precedent: the 2010 Kampala Amendments on aggression demonstrated that States Parties can expand the Statute’s catalogue of crimes when normative consensus emerges.

Either pathway would bring the Statute into harmony with its own interpretive principles and with customary international law’s prohibition of systematic domination.

Why the Moment Matters

The ICC’s warrants and the Madrid tribunal hearings together signal that the world now recognises the Taliban’s regime as a system, not just a sequence of abuses. For international law, this is the critical juncture where recognition must become codification.

Failing to name gender apartheid has consequences. It limits the charges available to prosecutors; it narrows the symbolic reach of accountability; and it perpetuates a hierarchy of oppressions where race-based domination is legally singular while gender-based domination remains conceptually diffuse.

Codifying gender apartheid would not expand international criminal law’s reach but complete its symmetry—affirming that when domination is institutionalised and intentional, the ground of discrimination cannot dictate the gravity of the crime.

Conclusion: Completing the Statute’s Logic

The Taliban’s decrees provide the clearest contemporary example of law weaponised to erase women from public life. The ICC’s 2025 warrants and the People’s Tribunal’s hearings show that both formal and informal justice systems are converging on the same intuition: that this is not merely persecution—it is apartheid by gender.

The Rome Statute already embodies the principle of equality through Article 21(3). Naming gender apartheid would simply give that principle doctrinal expression. Whether through judicial interpretation or amendment by States Parties, the law’s evolution is both possible and necessary.

International criminal law was built to confront systems of organised inhumanity. It cannot remain silent when law itself becomes the instrument of gendered exclusion. Recognising gender apartheid would ensure that the next time the ICC confronts a regime like the Taliban’s, it can call the crime by its rightful name.