Formal Inequality Under the Taliban and the Limits of the ICC’s Afghanistan Case

[Sayed Hussein Anosh is the Executive Director of Human Rights Defenders Plus (HRD+).

Kate McInnes practices international human rights law and international criminal law at Arendt Chambers.]

Gender persecution has been the defining feature of Taliban rule since its return to power in 2021. Afghan women and girls continue to be subjected to what commentators have described as one of the worst reversals of rights in human history. Education bans, restrictions on movement, exclusion from public life, and state-sanctioned violence continue to erase women from Afghan society.

The International Criminal Court (ICC) has rightfully responded to this state of affairs. On 31 October 2022, Pre-Trial Chamber II authorised the Office of the Prosecutor to resume its long-standing investigation into the situation in Afghanistan. On 28 November 2024, Chile, Costa Rica, Spain, France, Luxembourg, and Mexico referred the situation to the Office of the Prosecutor (OTP), urging action with respect to gender-based crimes. This momentum culminated on 23 January 2025, when the OTP announced the filing of arrest warrants for the crime against humanity of persecution on gender grounds against the Taliban’s Supreme Leader, Haibatullah Akhundzada, and the Chief Justice of the so-called “Islamic Emirate of Afghanistan,” Abdul Hakim Haqqani. These warrants were formally issued on 8 July 2025.

The ICC’s case marks a significant and necessary step toward accountability, but it remains insufficient to capture the full scope of atrocities in Afghanistan, which the UN High Commissioner for Human Rights has recently designated a “graveyard for human rights.” Gender persecution is not the only crime perpetrated by the Taliban, and this charge does not fully reflect the broader architecture of repression that enables such abuses.

If the ICC is to adequately respond to Taliban atrocities, it must expand its investigation beyond gender persecution. Doing so would not dilute the gravity of gender-based crimes. On the contrary, it would anchor them within an intersectional system of domination— one structured by gender but also by social status, religion, and ethnicity. The failure to adopt such an approach risks reproducing the reductionist narratives and analytical blind spots that have long plagued foreign intervention in the country and undermined both accountability and justice.

One critical entry point for such an expanded inquiry is the Taliban’s 2026 Criminal Procedural Regulation of the Courts (the “Regulation”), which exposes how formal inequality is deliberately codified and criminal law itself is deployed as a mechanism of persecution. Nowhere is this clearer than in Article 9, which formalizes a hierarchical system of punishment based explicitly on social status.

Article 9 of the Taliban’s Criminal Procedural Regulation

The Criminal Procedural Regulation of the Courts was circulated to courts across Afghanistan on 8 January 2026. The document was issued by the Taliban’s Supreme Leader, Haibatullah Akhundzada, and almost certainly drafted with the oversight of Chief Justice Abdul Hakim Haqqani. It is, in the words of one commentator:

“crafted within the parameters of traditional Hanafi jurisprudence, showcasing the regime’s unique interpretation of Islamic law.”

More pointedly, however, it has been observed that the Regulation goes far beyond the ordinary regulation of criminal procedure, instead codifying “an ideological system in which punishment, surveillance, and coercion are core instruments of governance.”

The Regulation as a whole introduces and entrenches a number of deeply concerning practices, including the erosion of due process guarantees and the normalization of corporal punishment against women and children. The focus here, however, is on Article 9, which unambiguously establishes a stratified system of criminal punishment based on social status.

The Regulation governs the imposition of taʿzir — that is, discretionary punishment, as opposed to ḥadd, which entails mandatory sanctions. Article 15 provides that “for every offense for which no fixed ḥadd punishment is prescribed, taʿzir shall be imposed on the offender,” regardless of whether the offender “is free or enslaved, male or female, Muslim or non-Muslim, adult or a discerning child.”

Article 9, however, is an explicit abandonment of the principle of equal protection under the law. It bluntly stratifies the population of Afghanistan into four classes: religious scholars (ulema), elites such as tribal elders and merchants, the “middle class,” and the “lower class.” Under this framework, legal consequences are determined by status rather than conduct. More specifically, Article 9 provides that taʿzir punishment is to be imposed as follows:

• Ulema and first-degree persons: punishment is administered by the judge in the form of a warning and “awareness-raising,” informing the individual that they have committed the relevant act.
• Elites: punishment consists of a formal warning and summoning before the court.
• Middle-class: punishment consists of summoning before the court and imprisonment.
• Lower-class: punishment is imposed through threats and beating.

At the outset, the Regulation’s attempt to classify individuals into hierarchical social categories raises significant concerns, as such classifications inherently undermine the principle of equality before the law under international human rights and Islamic jurisprudence (see Badar, p. 430-431). Notably, the Regulation provides no criteria for determining how individuals are to be classified as “middle-class” or “lower-class.” The absence of any definitional guidance grants judges and authorities extremely broad discretion to categorize individuals according to political or personal considerations. In practice, this ambiguity risks enabling arbitrary enforcement in which those aligned with, or useful to, the regime may be treated as socially elevated, while critics and marginalized communities are relegated to the “lower” category. The result is a system in which legal status is not objectively determined but instead becomes a flexible tool of social control.

Article 9 therefore weaponizes the law to reinforce a rigid social hierarchy while simultaneously allowing authorities to manipulate that hierarchy when convenient. By distributing legal consequences according to perceived status, the Regulation effectively institutionalizes a “divide and rule” structure of governance: elites and regime-aligned actors are shielded from meaningful punishment, while all others face intimidation, corporal punishment, and imprisonment.

Formal Inequality as Persecution as a Crime against Humanity

The decision of Pre-Trial Chamber II to authorise the resumption of the Afghanistan investigation, together with the subsequent state referral, rests on a clear premise: “Afghanistan is not presently carrying out genuine investigations in a manner that would justify a deferral of the Court’s investigations” or warrant deference under the principle of complementarity.

In this context, the OTP’s task should not be limited to cataloguing discrete acts of violence. It must also examine whether the governing legal framework itself facilitates a widespread or systematic attack against the civilian population — which, as Professor Miles Jackson has noted, has already been done with respect to the narrower question of gender persecution. Article 9 of the Regulationwarrants an expansion of that inquiry.

Under Article 7(1)(h) of the Rome Statute, persecution constitutes a crime against humanity where there is a severe deprivation of fundamental rights, contrary to international law, on the basis of a group’s identity, and where such conduct is committed as part of a widespread or systematic attack against a civilian population. It must also be committed in connection with any other crime within the jurisdiction of the ICC — a requirement plausibly satisfied here by the conduct mandated under Article 9 of the Regulation, which could be said to constitute the separate crimes against humanity of deprivation of liberty and/or torture under Article 7(1)(e) and (f) of the Rome Statute.

Persecution under international criminal law requires that a perpetrator “severely deprived … one or more persons of fundamental rights,” by reason of their identity. Among the most fundamental of all human rights is equality before the law. Article 26 of the International Covenant on Civil and Political Rights (ICCPR), to which Afghanistan remains bound as a state party, provides that all persons are equal before the law and are entitled without discrimination to equal protection of the law. The Human Rights Committee has repeatedly affirmed that Article 26 is autonomous in character: it prohibits not only discriminatory application of legislation but discriminatory legislation itself. A legal framework that differentiates between persons on impermissible grounds — particularly where it affects liberty, bodily integrity, or access to justice — is a violation of international law.

Article 9 of the Regulation represents a striking repudiation of formal equality. By calibrating taʿzir punishments according to hierarchical social status, it mandates differential treatment not based on conduct but on identity within a stratified order. Religious scholars are to receive warnings and “awareness-raising.” Elites are summoned formally. The “lower class” are flogged. Legal consequences are thus determined not by conduct, but by identity within a stratified social order.

The deprivation here is not abstract: the sanctions provided in the Regulation directly implicate rights protected under multiple provisions of the ICCPR, including Article 7’s prohibition of cruel, inhuman, or degrading punishment, Article 9’s guarantee of liberty and security of person, and Article 14’s requirement of equality before courts and tribunals. Nor is the deprivation incidental or episodic: the Regulation was issued by the Taliban’s Supreme Leader and disseminated nationwide to courts, thereby governing the adjudication of taʿzir offenses across all territory under Taliban control. This is systematic policy, not rogue behaviour.

The remaining question is whether the hierarchy established by Article 9 satisfies the requirement that persecution be directed against an identifiable group. The Rome Statute explicitly enumerates grounds such as religion and gender, but also includes “other grounds that are universally recognized as impermissible under international law.” International human rights law has long prohibited discrimination on the basis of “social origin,” “property,” and “other status.” Article 26 of the ICCPR itself extends beyond a closed list of categories, reflecting a broader commitment to substantive equality. A system that explicitly classifies individuals as “lower class” and subjects them to harsher punishment on that basis falls within this framework.

It may be argued that the OTP should resist expanding the investigation’s scope given finite resources and the strategic imperative of building the strongest possible case on gender persecution first. Yet Article 9 implicates the same perpetrators, institutions, and governing structures already under investigation. Incorporating this dimension would not fragment the case, but could instead strengthen it by demonstrating that gender persecution operates within a broader system of legally enforced hierarchy.

Beyond Gender Persecution – The Dangers of a Singular Lens

The ICC’s focus on gender persecution is both legally sound and morally urgent. The atrocities that continue to be committed against women and girls in Afghanistan can truly be said to shock the conscience of mankind. The arrest warrants issued in 2025 signal that the international community is no longer willing to treat such repression as culturally relative or politically inconvenient.

But the ICC’s case, while significant, is not sufficient.

Framing Taliban criminality solely through the lens of gender persecution risks flattening a far more expansive architecture of domination. The regime’s project is not confined to misogyny, however central misogyny is to its ideology. Its aim is to construct a society structured around multiple hierarchies: social, as we have seen, but also based on religion, ethnicity, culture, (dis)ability, political affiliation, sexual orientation — and gender.

There is historical reason to be cautious about approaching Afghanistan in this way. International engagement has often reduced the country’s complexity to singular narratives. These partial lenses yielded partial (and ultimately unsuccessful) results. A prosecutorial strategy that treats gender persecution in isolation from the Taliban’s broader system of legalized stratification risks reproducing a familiar pattern: condemning one axis of injustice while remaining silent on others and overlooking the interconnected web that sustains them all.

International criminal law was designed to address not only discrete acts of violence, but the bureaucratic and institutional mechanisms through which gross violations are normalized and facilitated. Article 9 of the Taliban’s 2026 Criminal Procedural Regulation of the Courts reveals precisely such a mechanism. It embeds social distinctions into sentencing procedure, conditions bodily integrity and liberty on social rank, and transforms courts into instruments of stratification. To overlook this fact risks narrowing our understanding of the crimes at issue.

If the ICC is to successfully prosecute the full scope of criminality in Afghanistan, it must look beyond isolated categories and examine the structure that binds them together. Article 9 reveals a regime that has institutionalized social hierarchy as a governing principle. Expanding the investigation to include these structural dimensions would not detract from gender persecution — it would situate it more accurately within the broader system that sustains it.