“Innovator”: A Label That Can Be Applied to Anyone

Article 2, paragraph 8 of the Penal Code of the Islamic Emirate introduces the concept of “innovator” (mubtadi‘) as one of the key terms. In some analyses, this term has been portrayed as a tool for excluding sects such as the Shia or the Ismailis. However, in the Hanafi jurisprudential tradition, the concept of bidah (innovation) does not necessarily imply from Islam or belonging to a separate sect; rather, it often refers to doctrinal or practical innovations within a religious tradition itself. For this reason, in some official statements by Taliban spokespersons, it has been suggested that the term is primarily aimed at Salafi or Wahhabi movements, rather than other Islamic sects.

Nevertheless, legal analysis cannot rely solely on the declared intent of the drafters; it must instead focus on the interpretive capacity of the legal text. The absence of a precise definition of bidah in the Penal Code of the Islamic Emirate creates the possibility for this concept to be interpreted expansively in practice. Under such conditions, the label “innovator” can become a flexible tag whose scope extends far beyond the lawmaker’s original intent.

Historical experience shows that the concept of bidah has always been contested and open to interpretation. Because there is often no clear boundary between “tradition” and “innovation,” its identification typically depends on the theological or jurisprudential perspective of the interpreting authority. As a result, when such a concept is incorporated into a legal text without a precise definition, there is a risk that the label “innovator” may be used as a tool for excluding or marginalising different groups.

From a legal perspective, the central issue is not merely the intention of the legislator, but the structure of the legal text and the breadth of its interpretive scope. Even if the original aim of the drafters was limited to addressing certain intra-Sunni movements, the lack of a clear definition of bidah leaves open the possibility that, in practice, the concept could be applied against a much broader range of religious or intellectual groups. For this reason, the historical use of accusations of bidah in religious conflicts serves as a cautionary lesson: a concept that has repeatedly been used for doctrinal boundary making, when introduced into law without a clear definition, can become a tool for expansive interpretation and discriminatory application within a legal system.

Which Class Do You Belong To? Punishment Based on Social Status

One of the notable aspects of the Penal Code of the Islamic Emirate is the way crimes and punishments are classified. In modern legal systems, offences are typically categorised based on the severity of punishment, such as felonies, misdemeanours, and infractions. However, such a classification is not found in the Penal Code of the Islamic Emirate. Instead, Article 9 reflects a form of classification based on the offender rather than the nature or gravity of the crime.

In the footnotes, classical jurisprudential sources are explicitly cited, including Al-Fatawa al-Hindiyya (compiled during the reign of Aurangzeb in 1667) and Radd al-Muhtar by Ibn Abidin (19th century). These references suggest that the drafters sought to base the regulation of criminal life in a society of roughly 40 million people in 2026 on legal opinions formulated 300 to 400 years ago, within a social context in which hierarchical structures, such as the Hindu caste system, played a significant role.

The reference to Al-Fatawa al-Hindiyya indicates that the model for structuring punishments emerged within a specific historical context where social stratification and distinctions were deeply embedded. Transposing such models into contemporary Afghan society, without rethinking modern concepts of justice, equality, and citizenship, may lead to the reproduction of structural inequality within the criminal justice system. The issue here is not merely a single provision, but rather a legislative method that imposes the past onto the present without critical adaptation.

What brings the Penal Code of the Islamic Emirate closer to a caste-like system is not superficial similarity, but a shared theoretical and structural foundation: in both systems, an individual’s social status serves as a basis for determining their rights and punishments.

Moreover, terms such as “scholar,” “elite,” “merchant,” or “common people” appear in the text, yet no clear or codified criteria are provided for identifying these categories. This ambiguity may give law enforcement authorities broad discretion, opening the door to subjective interpretation and potentially discriminatory application.

Dancing Is Forbidden, But What Is “Dancing”?

Conceptual ambiguity in certain provisions of the Penal Code of the Islamic Emirate is such that it can lead to an unchecked expansion of judicial discretion. For example, Article 59, which criminalises dancing, illustrates a case of vague criminalisation. In this provision, not only dancers but also organisers and even spectators are considered offenders, yet no clear definition of what constitutes “dancing” is provided. In a multicultural society like Afghanistan, such ambiguity can result in restrictions on the cultural rights of different ethnic groups.

Similarly, in relation to “immoral and sinful gatherings”, Article 40 provides that any individual present at such a gathering, even without criminal intent or active participation, may be treated as an accomplice. Such a rule conflicts with the principle of individual criminal responsibility and the presumption of innocence.

Silence Is a Crime: A Society with Ever-Watchful Eyes

Article 24 of the Penal Code of the Islamic Emirate stipulates that if a person is aware of consultative meetings or subversive actions by opponents of the regime and fails to report them or take action against them, they shall be subject to tazir punishment.

In practice, this provision treats silence as a crime and creates a kind of general duty to report. Such an approach can have wide-ranging social consequences, including the spread of distrust and the weakening of social bonds.

Rights Lost in the Law

One of the most significant shortcomings of the Penal Code of the Islamic Emirate is the absence of key guarantees of fair trial. In this document:

• The right to remain silent is not recognised.
• The right to access a lawyer is not provided.
• The concept of a “suspect” does not exist within the criminal process.

As a result, within this system, an individual is effectively classified either as an “accused” (under Article 2, paragraph 12) or as a “criminal” (under Article 2, paragraph 13). Moreover, in some cases, the attribution of an offence may be based solely on the testimony of a single “just” (‘adil) individual, even though the criteria for determining such “justice” are not defined.

Every Muslim a Judge: The Court in the Street

In some provisions of the Penal Code of the Islamic Emirate, the enforcement of punishments is envisioned in a decentralised manner. For example:

• The execution of tazir punishments by ordinary Muslims
• Direct action against opponents under Article 24
• The authority of a husband to discipline (Article 32)

Such provisions can lead to the fragmentation of penal authority and weaken the state’s exclusive control over the use of coercive force. Under these conditions, the boundary between formal justice and private violence gradually becomes blurred.

What the Law Does Not Say

Critiquing a law is not limited to examining what is written in the text; it must also consider what has been omitted. In the Penal Code of the Islamic Emirate, there is no reference to many contemporary crimes, including:

• Cybercrime
• Money laundering
• Tax offenses
• Environmental crimes
• Violations of intellectual property
• Crimes against humanity

These silences suggest that the primary focus of the Code is more on social and normative control than on addressing complex economic and organised crimes.

Conclusion

And now we return to the initial question: was 5 January 2026 the end of a dream, or the beginning of a nightmare? The dream of a people who have endured more than four decades of war is nothing more than to live in a country where laws are written based on equality, where rich and poor, scholar and layperson, women and men are equal before the law. The dream of Afghanistan was a society in which silence is not a crime and “discipline” is not a pretext for violence.

The Penal Code of the Islamic Emirate, however, paint a different picture: fatwas from 400 years ago as the law governing the lives of 35 million people; social classification at the heart of justice; elastic concepts like bidah in the service of power; and a line between discipline and torture that is only millimetres apart.

Is this the end of a dream? Perhaps. The end of the dream of a law that protects citizens from power. The end of the dream of equality before the law.

Or perhaps it is the beginning of a nightmare. A nightmare in which anyone, in the name of “enjoining good,” can impose punishment. A nightmare in which silence is a crime and neighbours must watch one another. A nightmare in which crimes such as torture, money laundering, and crimes against humanity are absent from the legal framework, because the priority is not justice, but control.

Now, the judgment is yours: the end of a dream, or the beginning of a nightmare?

15 Jadi 1404 (January 5, 2026) may be remembered as a turning point in the development of Afghanistan’s criminal law under Taliban rule, but one that raises serious concerns about fairness, clarity, and the direction of legal reform. The publication of the 58-page document titled “دمحاکمو جزایی اصولنامی” does not simply signal legal development; rather, it suggests a system that appears vague in parts, heavily restrictive and deeply rooted in pre- modern legal thought. Issued with the signature of the Taliban leader, it consists of an introduction, three sections, ten chapters, and 119 articles. Its structure is organised as follows: the first section is devoted to Tazeer (Punishments set according to an authority’s discretion), the second to hudud (fixed punishments prescribed under Sharia) and Qisas (retaliation in kind), and the third to Diyat (Blood money in Islam).

One of the notable features of this document is the explicit reference in the footnotes of its articles to classical jurisprudential sources, including Al-Fatawa al-Hindiyya, compiled during the reign of Aurangzeb in the 17th century, and Radd al-Muhtar ‘ala al-Durr al-Mukhtar by Ibn Abidin from the 19th century. The inclusion of these sources indicates that the drafters sought to adopt the Hanafi jurisprudential tradition as the primary basis for legislation. However, this very approach raises a fundamental question: are we witnessing the development of a modern legal system, or the direct transplantation of centuries-old fatwas (religious rulings or answers given by an Islamic scholar) into the form of statutory law for a contemporary society?

This question becomes even more significant when we consider that the document in question was drafted in an environment lacking an elected legislative body. Therefore, a proper legal analysis requires clarification of the institutional channel through which this document was issued: was it promulgated by decree of the Taliban leader, or was it approved within the framework of a leadership council? Using the term “adoption” or “enactment” for such a text without specifying its issuing authority may lead to conceptual ambiguity in legal analysis.

This blogpost seeks to examine the Penal Code of the Islamic Emirate from the perspective of contemporary criminal law. To this end, the analysis will focus on several key axes: the status and legal nature of the document, conceptual ambiguities in certain key terms, structural challenges in legislative drafting, the consequences of vague criminalisation, the state of fair trial guarantees, and legislative gaps in the area of contemporary crimes.

Law or Fatwa? The Puzzle of a Document’s Identity

One of the first analytical challenges regarding this document is the blending of different normative levels within the structure of the legal text. In modern legal systems, there is usually a clear distinction between substantive rules (the definition of crimes and punishments) and procedural rules. This separation is intended to enhance clarity, predictability, and to limit the scope of judicial interpretation. However, in the Penal Code of the Islamic Emirate, this boundary is not consistently observed; in some instances, the legal text, jurisprudential sources, and even rules on the execution of punishments are presented within a single unified structure.

An example of this situation can be seen in Article 4. This article states the following regarding the implementation of various Islamic punishments:

In the enforcement of hudud, qisas, and diyat, rulings are carried out based on Sharia by the Imam or ruler; however, in discretionary (tazir) punishments, discipline may also be carried out by religiously authorised individuals.

Alongside this provision, the footnotes to the articles refer to classical jurisprudential sources such as Al-Fatawa al-Hindiyya and Radd al-Muhtar. In this way, the legislator not only sets out the legal rule but simultaneously incorporates its jurisprudential foundation into the structure of the text. This legislative method results in the intertwining of three distinct normative levels within a single provision:

1. Legislative level: The text of the article, drafted as a binding legal rule for the courts
2. Jurisprudential level: Footnote references to classical fiqh texts that serve as interpretive foundations for the ruling.
3. Enforcement level: The provision allowing certain punishments to be carried out by non-judicial actors, such as a husband or other individuals deemed religiously qualified.

This blending can have significant practical consequences. First, a judge is not confronted with a single, clear legal text but is compelled to interpret not only the statutory provision but also the referenced jurisprudential sources in the footnotes. Such a situation expands the scope of judicial interpretation and, in the absence of clear interpretive standards, increases the likelihood of divergent understandings among judges and the exercise of personal discretion in issuing rulings.

Second, allowing the enforcement of certain tazir punishments by non-judicial individuals weakens the boundary between the formal justice system and private punishment. In most contemporary legal systems, the use of coercive force and the execution of punishments fall exclusively within the authority of the state and judicial institutions. However, under the Penal Code of the Islamic Emirate, delegating part of the penal authority to private individuals creates fragmentation in the exercise of criminal power, which may undermine the coherence of the criminal justice system.

From this perspective, the issue is not merely the content of a specific article. Still, it relates to the legislative method itself—a method in which law, jurisprudential interpretation, and the mode of punishment enforcement are placed side by side without institutional separation. Such a structure can reduce legal predictability and create the conditions for differing and at times conflicting interpretations within the judicial system.

Silence of the Law: When Nothing Is Clearly Defined

The principle of legality of crimes and punishments is considered one of the most fundamental principles of contemporary criminal law. According to this principle, no act is regarded as a crime and no punishment is imposed unless it has been clearly and precisely defined by law in advance. The purpose of this principle is to limit the state’s punitive power, ensure legal predictability, and prevent broad or arbitrary interpretations in judicial proceedings.

In the Penal Code of the Islamic Emirate, this principle is not explicitly stated. Nowhere in the text is it specified that no act outside this document shall be considered a crime, or that no punishment other than those prescribed therein may be imposed. Moreover, in some provisions of the document, criminal concepts are defined in such general and vague terms that a wide range of behaviours could fall under them. For example, some articles refer to crimes such as the “promotion of innovations (bid‘ah)” and “corruption,” without providing precise definitions or clear criteria for identifying these concepts. The absence of a specific definition of bid‘ah may lead to expansive interpretations, such that any behaviour, speech, or religious practice that deviates from the official interpretation could be classified under this criminal category. In a multi-religious society like Afghanistan, such ambiguity could potentially be used against other religious groups.

Similarly, the concept of “corruption” is used broadly in certain provisions without specifying its constituent elements or concrete examples. In the absence of such criteria, determining what constitutes corruption is effectively left to the interpretation of judges or enforcement authorities. This situation may lead to an expansion of criminal intervention and a reduction in legal predictability.

From a theoretical perspective, the principle of legality of crimes and punishments is one of the most important achievements of the intellectual developments of the Enlightenment in Europe. Thinkers such as Montesquieu advanced this principle as a reaction to judicial arbitrariness in pre-modern systems, systems in which judges could classify various behaviours as crimes based on personal interpretations of morality, religion, or custom. The establishment of this principle in modern criminal law marked the transfer of the authority to define crimes from judges to legislators and imposed clear limits on the state’s punitive power.

Within this framework, the absence of an explicit statement of the principle of legality and the use of vague concepts in the Penal Code of the Islamic Emirate may have significant implications for the criminal justice system. The weakening or omission of this principle in contemporary Afghanistan, especially in a society with broad religious and cultural diversity, may expand the scope of judicial interpretation and reduce the legal security of citizens. In other words, in the absence of precise legal definitions, the boundary between lawful and criminal behaviour remains unclear, creating the potential for arbitrary application of the law in judicial proceedings.

Continued in Part 2 which can be accessed here.

Discrimination and Suppression of Freedoms 


The Criminal Procedure Code violates the core human rights principle that all people are equal before the law by assigning punishment based on social rank rather than the crime itself. Article 9 divides people into classes, giving “scholars” only advice, “elites” a summons and advice, the “middle class” imprisonment, and the “lower class” imprisonment plus corporal punishment, all for the same offence. The Code also normalises slavery by repeatedly referencing “slaves” and allowing “masters” to enforce punishments, contradicting the absolute international prohibition of slavery.

In particular, the Code entrenches religious discrimination. Only followers of the Hanafi school are regarded as Muslims while other sects and beliefs are labelled “mubtadeh” (heretics), undermining the non-discrimination principle and enabling repression of Shias, Ismailis, other Muslim groups, and non-Muslims (Article 2 § 8). With the Imam’s approval, persons who defend or promote “false beliefs” can be killed (Article 14). “Mockery” of Islamic rulings is punished with up to two years’ imprisonment without clear criteria (Article 17) Hanafi apostasy results in two years imprisonment (Article 26), heightening risks of arbitrary arrest and torture, whilst shrinking civic space.

Finally, the Code institutionalises repression. Article 19 criminalises acts labelled “permissible” but prohibited by the Taliban leader, and even punishes criticism of such arbitrary prohibitions, censoring, for example, objections to bans on women’s education. Article 23 § 2 prescribes 20 lashes and six months’ imprisonment for “insulting” Taliban leaders, criminalising dissent; and Article 24, punishes people who fail to act against or report “subversive” meetings, compelling citizens to inform on opponents. Together, these provisions violate freedom of expression, liberty, civilian neutrality, and facilitate arbitrary detention.

Intensified and Arbitrary Punishment 


Several provisions of the Taliban’s Code enable arbitrary punishment and violate fair-trial rights. Punishment is often based on vague “corruption” concepts. A “baghi” (rebel) is defined as someone spreading “corruption” who cannot be reformed without death (Article 2 § 11). Article 13 orders destruction of “places of corruption,” even without proving an owners’ responsibility. Article 40 treats anyone present at a “gathering of corruption,” even involuntarily, as complicit. These provisions make possible the killing of political opponents and human rights activists and the closure of community venues all while underming legality, intent requirements, and the presumption of innocence.

Flogging as a punishment is prescribed very extensively and without clear limitations (e.g., Article 18), even though corporal punishment and degrading treatment conflict with the principle of human dignity and the absolute prohibition of torture and cruel punishment. This, in turn, significantly increases the risk of systematic violence and the institutionalisation of practices contrary to human rights values.

Finally, any Muslim who witnesses “sin” is allowed to punish sinners, empowering ordinary people, morality police, and clerics to enforce punishments (Article 4§6). For crimes that are punishable by “hudud” (fixed, mandatory punishments for crimes considered offenses against God) and “diyat” (monetary compensation to victims or their heirs in cases of bodily harm or homicide), only the act is considered, ignoring intent and capacity (Article 2 § 14).

Domestic Violence 


The Criminal Procedure Code inadequately protects children and women, instead normalising abuse. Teacher violence is only banned if it causes fractures, torn skin, or bruising, but other physical, psychological, and sexual abuse go unpunished (Article 30). Fathers are allowed to punish 10-year-old sons for behaviour deemed against their interests, including abandoning prayer (Article 48). For women, husbands are only penalised for beating their wives with a stick if that causes serious injury and can be proven (Article 32), ignoring other forms of violence. Husbands can also execute “tazir” — discretionary punishment ranging from scolding to corporal punishment — for disobedience (Article 4 § 5). Women who leave home without permission, and relatives who shelter them, are criminalised (Article 34), endangering victims.

Conclusion

In sum, the Taliban’s new “Criminal Procedure Code for Courts” means nothing less than that fundamental rights protecting equality, dignity, physical integrity, and freedom of religion and expression, are legally violable in Afghanistan. The human rights NGO Rawadari published a more extensive analysis of the new Code’s provisions, urging halting implementation and international action.

At the international level, it bears remembering that in September 2024, Australia, Canada, Germany, and the Netherlands announced a joint, landmark initiative to hold the Taliban-led de facto authorities in Afghanistan accountable for systemic violations of the UN Convention on the Elimination of All Forms of Discrimination against Women. This action seeks to address the “gender apartheid” occurring in Afghanistan, of which this new Code is yet one further example, and may lead to a case before the International Court of Justice.

First, let’s explore the case of ‘gender apartheid’ as a legal category. Amongst the most visible advocates for its codification in international law are Nobel Peace Prize winners Malala Yousafzai, Nadia Murad, Shirin Ebadi and Nargess Mohammadi, UN Women, and the Atlantic Council’s Strategic Litigation Project (SPL). In terms of concrete steps, the UN Women’s Working Group on Discrimination Against Women issued a statement in 2024 to urge the international community to recognize gender apartheid as a crime against humanity, whilst the Strategic Litigation Project, directed by the Iranian-American human rights lawyer Gissou Nia, has proposed an amendment to the definition of the crime of apartheid in the International Law Commission’s draft articles on the prevention and punishment of crimes against humanity to include gender-based apartheid in addition to racial apartheid. Prior to this, in 2023, the UN Special Rapporteur on the situation of human rights in Afghanistan, Richard Bennett, and the UN Women’s Working Group on Discrimination Against Women specifically suggested the following  legal definition of gender apartheid, adapted from the definition of racial apartheid in Article 7.2(h) of the Rome Statute of the International Criminal Court: ‘Inhumane acts … committed in the context of an institutionalized regime of systematic discrimination, oppression and domination by one gender group over any other gender group or groups,  and committed with the intention of maintaining that regime.’

The response to the movement has been mixed. As per a 2024 collective letter added to the #EndGenderApartheid campaign’s website,  some South African jurists and anti-apartheid experts support the endeavour. However, others deem the existing framework to prosecute the crime against humanity of gender persecution sufficient as it is, and consider the underlying logics and social implications of racial segregation and gender segregation too different to amalgamate under the same legal term. This risks appropriating the term ‘apartheid’ in a perhaps overly optimistic transnational fashion, disregarding the respective cultural contexts where these social phenomena grew. In this vein, criticism of this campaign as being a form of Western-imposed neo-colonial feminism has been put forward, in Western academia and within Iran and Afghanistan themselves—an argument often appearing in the context of transnational women’s rights advocacy. Whilst these arguments have the merit of showcasing cultural sensitivity, the usefulness of an additional legal framework for advocacy purposes and safeguarding women’s rights remains salient.

Important to note is that this campaign also came at a time when the International Court of Justice had been led to assess the possibility of formally recognising the situation in the Occupied Palestinian Territories as constituting a form of apartheid, which culminated in its July 2024 ruling (see the Declaration of Judge Brandt) affirming that the situation on the ground indeed qualified as such. This landmark decision may spark a trend towards expanding the use of the concept to refer not only to a historic era restricted to South Africa, but also to a legal category with broader reach and applicability. It also highlighted the need for an evolutive treaty interpretation of the constituent elements of the crime of apartheid. While this declaration was made in the context of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), it could set a precedent useful to advocate for the codification of gender apartheid into international law.

In a context in which the definition of apartheid extends to potentially include other forms of identity-based marginalization, such as gender, it would be interesting to see if the reasoning will eventually be taken further to include other identities protected under international human rights law, such as indigenous communities and disabled persons, which are to this day commonly segregated in educational settings across the globe. This could prove a desirable development, although the uniqueness of the South African experience still needs to be recognised.

As of 2024, Afghanistan ranks 178th of 180 countries in Reporters Without Borders’ Press Freedom Index—a staggering fall of 56 places since 2021. Since their return to power, the Taliban have shuttered more than 300 media outlets and pushed hundreds of journalists—particularly women—out of public life. This post outlines the legal violations, ideological frameworks, and urgent international responsibilities related to press freedom in Afghanistan.

From Constitutional Protections to Theocratic Controls

Under the former Islamic Republic, a combination of domestic and international legal frameworks—including Article 34 of the 2004 Constitution, the 2009 Mass Media Law (amended in 2015), and the Access to Information Law (2014, revised in 2018 and 2019)—guaranteed freedom of expression and institutionalised access to information.These safeguards, though unevenly implemented, enabled independent journalism to flourish amidst the Taliban insurgency.

While the Taliban nominally acknowledge aspects of these laws, they have replaced them in practice with a theocratic model rooted in hisbah (moral policing) and siyāsa sharʿiyya (discretionary Islamic governance). Drawing on the ideology articulated by Chief Justice Abdul Hakim Haqqani, this model collapses the distinction between law and fatwa, enabling coercive edicts without codified legal safeguards. It is enforced through vague instruments such as 11-point media guidelines (2021) and the 2024 Law on the Promotion of Virtue and Prevention of Vice (VPVPV) which prohibit content “contrary to Islam,” mandate prior approval of media, and—in some provinces—ban women’s voices. Seven additional new directives were issued in 2024 alone.

These measures violate Article 19 of the ICCPR, which guarantees the right to freedom of expression, including the freedom to seek, receive and impart information of all kinds. The UN Special Rapporteur on the situation of human rights in Afghanistan, Richard Bennett, has stressed that “freedom of expression has been severely restricted,” with journalists facing arbitrary arrest, intimidation, and gender-based exclusion.

Criminalisation and Collapse

According to the Afghanistan Journalists Center, 181 press freedom violations occurred in 2024 alone, including 50 arrests. At least five journalists received prison sentences between two and five years. Women journalists have been disproportionately affected—84% have lost their jobs, and many provinces have banned them from field reporting or broadcasting.

In early 2025, Radio Begum, a women-led outlet, was closed for alleged collaboration with banned foreign media, and allowed to resume only after agreeing to vague Taliban “principles”. Such coercion, including the criminalisation of collaboration with exiled media, illustrates the regime’s arbitrary use of authority.

Meanwhile, widespread economic hardship undermines media sustainability. One in four Afghan households now struggles to afford food, and media outlets face prohibitive licensing fees, arbitrary taxation, and the withdrawal of donor support.

Digital Dissent and Taliban Control

During their first rule (1996–2001), the Taliban banned most forms of independent media and criminalised entertainment. During their insurgency (2004-2021), they reversed the course—leveraging media and digital tools for recruitment, propaganda, and psychological warfare. Since returning to power, they have shifted tactics once more: rather than banning media outright, the Taliban seek to maximally control the information environment. Fewer than half of pre-2021 outlets still operate, and many have shifted to regime-approved formats.

The Taliban exploit digital platforms to tighten control. They monitor digital activity through surveillance tools. Their state-run Radio Television Afghanistan, among others, floods platforms like X with regime messaging to drown out dissent—a tactic widely used in other authoritarian contexts. Facebook, WhatsApp, and other apps remain critical for public access to information, but self-censorship is widespread.

Why Press Freedom Still Matters

Despite the repression, Afghanistan’s journalists continue to report human rights abuses, contributing to investigations by international mechanisms such as the UN Human Rights Council and, (indirectly,) the International Criminal Court. Independent media play a vital role in exposing corruption, informing humanitarian responses, and amplifying marginalised voices.

These functions align with Afghanistan’s obligations under the UN Convention Against Corruption, ratified in 2008, which calls for public participation and access to information. Survey data show that women place a higher value on media than men, despite having lower access—making their exclusion particularly damaging to civic discourse.

What Should Be Done

Support for Afghanistan’s media must go beyond symbolic gestures. Abandoning journalists now would undo two decades of international investment in the country’s media development and erase hard-won gains for transparency and accountability. Donors should prioritise support for women-led and provincial outlets, fund investigative and human rights journalism, and scale up digital safety initiatives. Exiled media outlets require sustainable funding and technical support to counter Taliban narratives. Sanctions should be imposed on Taliban officials responsible for media suppression.

Another year should not pass with statements of concern alone. The international community must act—decisively and collectively—to preserve what remains of post-2001 Afghanistan media landscape before only Taliban narratives remain.

Since August 2021, the Taliban de facto government has issued more than 80 edicts restricting the rights and freedoms of Afghan women and girls in all spheres of their existence: public participation and political life, economic and social life, health and safety, and family and cultural life. Women described their experience saying, “We are alive, but not living”. The ‘Morality Law’ of August 2024 prohibits women from speaking in public on the grounds that the female voice should only be expressed in an intimate setting, and even prevents women from singing publicly.

The prohibitions issued by the Taliban also include discretionary powers to apply severe punishments for non-compliance, further heightening a social climate of fear and uncertainty. The intent to erase women’s and girls’ human rights to the extreme has also facilitated the reinforcement of harmful practices and gender stereotypes, as well as patriarchal conducts towards women and girls, including in some cases by their own family members.

This deprivation of fundamental rights of Afghan women and girls, and LGBTI persons, and harsh methods of enforcement, can be characterized as gender persecution, a crime against humanity already contemplated in Article 7(1)(h) of the Rome Statute of the ICC and prosecutable by the ICC. The Prosecutor’s move has been welcomed by Afghan civil society organisations, as well as by UN human rights experts, as a positive step in the pursuit of justice for misogynistic policies and for past and ongoing gender-based crimes.

How does this help the movement to end gender apartheid?

Feminist campaigns, human rights organisations, UN human rights experts, renowned activists like Malala Yousafzai, and some States have defended that the system of institutionalized discrimination, segregation and subjugation of women and girls based on gender, also amounts to ‘gender apartheid’, and should be explicitly recognized and codified as such in international law. Defenders of this position argue that ‘gender apartheid’ builds on the legal figure of racial apartheid to fully capture the institutionalised and systematic nature of the inhumane acts being perpetrated in Afghanistan based on gender and would complement the existing crime against humanity of gender persecution. The UN General Assembly’s Sixth Committee (Legal) is currently discussing the possibility of including gender apartheid in the draft Convention on Crimes Against Humanity and it will resume its analysis in its meeting of January 2026.

While the outrage over the situation of women and girls in Afghanistan is crucial, it is also essential to understand it not as an isolated event in a single country, but as a symptomatic situation – certainly one of the most serious – of the global gender backlash. As such, Afghanistan is a test for the international community, its founding values and its red lines: the reaction to this reality will point the path to take in the face of (potential) acts of gender oppression in other parts of the world.

One can only hope the ICC judges live up to the expectations of the Afghan people and issue the requested arrest warrants. This would place the dignity and human rights of women and girls at the centre of the international stage where they belong.

Challenges and Obstacles

While the Prosecutor’s action is a significant step toward accountability, it faces several obstacles that may hinder its effectiveness.

First, Article 86 of the Rome Statute obliges States Parties to cooperate fully with the ICC in the investigation and prosecution of crimes. Both Akhundzada and Haqqani have rarely been seen in public and have no known international travel records. Their limited mobility within Taliban-controlled Afghanistan complicates efforts to execute potential arrest warrants. If they remain within Taliban-controlled territory, apprehending them would require significant cooperation from external actors or entities willing to intervene, which is highly unlikely given the current geopolitical context.

The ICC lacks its own police force to enforce arrest warrants and must rely entirely on the cooperation of State Parties to execute them. The ICC has faced similar challenges in other cases. For instance, on November 21, 2024, Pre-Trial Chamber I issued arrest warrants against Israeli officials, including Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, for war crimes and crimes against humanity. Similarly, on March 17, 2023, Pre-Trial Chamber II issued arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova, Russia’s Commissioner for Children’s Rights, for alleged war crimes in Ukraine. Despite these warrants, the suspects remain in power with no changes in circumstances. Additionally, France has indicated that it would likely not take immediate action to arrest Israeli Prime Minister Benjamin Netanyahu if he entered French territory, citing immunity-related concerns. Likewise, Italy recently failed to fulfill its obligations under the Rome Statute by declining to surrender Ossama al-Masri to the ICC, despite an active warrant accusing him of grave crimes, including murder, torture, and rape. Instead, Italy repatriated him to Libya. These instances exemplify the significant challenges faced by the ICC in ensuring compliance with its arrest warrants, particularly in the absence of full cooperation from states.

Second, the arrest warrants against the Taliban leaders are still in their preliminary stages. The issuance of warrants depends on judicial approval following an evaluation of the evidence gathered during the OTP’s investigation. Judges must determine whether reasonable grounds exist to believe the accused have committed crimes within the Court’s jurisdiction. Arrest warrants are issued not only to ensure the suspect’s appearance at trial but also to prevent obstruction of investigations or the continuation of the alleged crimes. However, the legal threshold for issuing warrants requires substantial evidentiary support. This process is particularly challenging given the limited access to Afghanistan under the Taliban rule and the necessity of accurately interpreting evidence within complex historical, cultural, and contextual frameworks. Judges may navigate these intricacies to ensure that the evidence meets the requisite legal standards. Furthermore, the Taliban have recently rejected the ICC’s jurisdiction, asserting that they do not recognize any legal obligations under the Rome Statute and deeming the previous administration’s accession to the treaty as legally invalid. This position appears to be inconsistent with Article 127 of the Rome Statute, which requires a state seeking to withdraw to submit a formal written notification to the UN Secretary-General, followed by a one-year waiting period. However, even if such a withdrawal were formally initiated, it would not absolve the state of its obligations under the Statute, nor would it preclude the Court from exercising jurisdiction over crimes committed while Afghanistan was a State Party. Nevertheless, this development is likely to further complicate the situation, potentially resulting in an impasse.

Third, even after the issuance of arrest warrants, the prosecution and trial of suspects can take years, particularly given the difficulty in apprehending individuals. The ICC relies on its member states to execute warrants, and procedural complexities, extensive investigations, and the gravity of international crimes contribute to delays. Therefore, the Court’s decision may not have an immediate or tangible effect on the situation of women and girls in Afghanistan. Prolonged delays in prosecuting suspects could undermine the impact and relevance of justice, potentially eroding the faith of the women and girls—who are the primary victims of these crimes—in the judicial process if they do not see timely accountability.

A Landmark Step for Justice

The OTP’s actions mark a pivotal moment in the pursuit of justice for gender-based crimes under international law, offering a beacon of hope for women and girls in Afghanistan who continue to endure systematic persecution. Nevertheless, the path to accountability remains riddled with significant challenges, including the enforcement of arrest warrants, procedural complexities, and political resistance. Despite these hurdles, the ICC’s unwavering commitment to addressing such egregious crimes sends a resounding message that impunity for gender-based persecution will not be tolerated. While the immediate impact on victims may be limited, the precedent set by these actions reinforces the fundamental principle that crimes of this magnitude demand accountability. By seeking to hold the Taliban leadership responsible, the international community reaffirms its dedication to justice and the protection of human dignity, even in the most challenging circumstances. For the women and girls of Afghanistan, this development underscores their resilience and the strength of their advocacy in demanding justice. It is both a recognition of their struggle and a call to continue shaping a more equitable and just future for Afghanistan.

The Taliban’s Persecution of Women

The systemic persecution of women and girls in Afghanistan constitutes a crime against humanity under Article 7(1)(h) of the Rome Statute, and has been ongoing from August 15, 2021, to the present, across the entirety of the country. The ICC Prosecutor has further asserted that there are reasonable grounds to believe the Taliban have engaged in numerous acts of gender-based persecution as part of a widespread and systematic attack on the civilian population, carried out pursuant to a State or organizational policy. This persecution targets women perceived as failing to conform to the Taliban’s ideological expectations regarding gender roles and its interpretation of Sharia law resulting in severe deprivations of fundamental rights.

Contextual Background

The recent action taken by the Prosecutor was largely expedited by a referral submitted on November 28, 2024, by six state parties to the Rome Statute—Chile, Costa Rica, Spain, France, Luxembourg, and Mexico. The OTP previously confirmed that it is actively investigating the situation in Afghanistan, which already includes the alleged crimes detailed in the referral. The referral expressed grave concerns about the deteriorating human rights situation in Afghanistan, specifically highlighting the systematic and widespread violations targeting women and girls, and requested the inclusion of these crimes within the scope of the OTP’s ongoing investigation into the Situation in Afghanistan. Afghanistan, as a State Party to the Rome Statute since May 1, 2003, falls under the ICC’s jurisdiction and the ICC Pre-Trial Chamber II authorized the resumption of the OTP’s investigation on October 31, 2022, following a deferral initiated by the now-defunct Republic of Afghanistan in March 2020.

Symbolic and Practical Significance

The filing of these applications for arrest warrants carries profound implications, underscoring the international community’s condemnation of the unprecedented and egregious persecution faced by women and girls under Taliban rule. It conveys a resolute message that the systematic repression of women and girls in Afghanistan is intolerable and will not be normalized. Furthermore, this development reflects the significant achievements of the women in their global campaign against gender-based persecution, frequently referred to as “gender apartheid.” Since the Taliban took power in August 2021, the women of Afghanistan have actively worked to rebuild their capacity and empowerment while advocating for accountability for the Taliban’s actions. The submission of arrest warrant applications against two senior Taliban leaders represents a landmark victory for this movement, symbolizing a crucial step toward justice.

The Prosecutor has unequivocally asserted that the Taliban’s interpretation of Sharia law cannot and must not serve as a justification for the deprivation of fundamental human rights or the commission of crimes under the Rome Statute. It is essential to recognize that these actions constitute gender-based persecution rather than a legitimate divergence in religious interpretation.

In the meantime, the women and girls of Afghanistan have successfully mobilized support from several states, including Australia, Canada, Germany, and the Netherlands, to initiate proceedings against the Taliban at the International Court of Justice (ICJ) for gender discrimination stemming from the regime’s systematic persecution. This dual-track approach—pursuing accountability through both the ICC and the ICJ—marks a pivotal achievement in the women and girls global effort to combat gender-based persecution and secure justice for women and girls in Afghanistan.

Moreover, the filing of these arrest warrant applications carries profound political implications, particularly concerning the international recognition of the Taliban as a de jure government. Since the Taliban’s takeover of Kabul in August 2021, the regime has persistently sought international recognition. However, no state has formally recognized the Taliban as the legitimate government of Afghanistan. In the context of international law, recognition by states enables it to establish formal diplomatic relations and affirm its status as an independent political entity within the international system. The ICC’s intervention indicates the principle that systematic violations of fundamental human rights cannot be normalized or excused, thereby further complicating and undermining any efforts to legitimize the Taliban on the international stage.

Violence against women (VAW) is a global epidemic that affects all nationalities. VAW and long-term deprivation of human rights and freedoms are a bitter reality in Afghanistan. However, despite the discrimination, social and cultural barriers, two decades of democracy in Afghanistan provided an opportunity for women to further their struggle for the right to contribute to society as much as possible.                               

In 2009, in a major breakthrough, the Elimination of Violence Against Women Law (EVAW Law) was introduced. It defines violence as those acts which cause damage to the personality, body, property, and spirit of a woman. Twenty-two acts of violence were named in this law, including rape, forced prostitution, underage marriage, and deprivation of the right to education, work, and access to health services. Sentences can range from shorter terms of imprisonment to the death penalty. The law provides for measures to protect the rights of victims, namely: prosecution of the defendant, access to a support center or safe house, access to urgent and free health services, and access to legal aid. Alongside punishment, the defendant could also be required to pay compensation for damages.

To implement the EVAW Law, women’s support centers (safe houses) were set up in some provinces in Afghanistan, functioning as protective environments for women fleeing their homes due to violence. Along with the EVAW law, other measures were taken by the former government to protect women. This included appointing special prosecutors and establishing courts to combat violence, setting up the Ministry of Women’s Affairs, and providing for divorce through the creation of family courts, and enacting the Personal Status Law.

After the takeover by the Taliban, women who had struggled, worked, and studied under the umbrella of democracy and relative freedom for two decades lost everything. Women have been protesting continuously and bravely, demanding their rights. But the Taliban’s response has been warnings, threats, and beatings.

Currently, women are prevented from going to work, studying, and freely moving in society. They have to wear special clothing. As of 22 January 2022, the Taliban published posters obliging women to wear the burqa and the black veil, the chador. Women have responded by saying that the black veil is not part of their culture. The Taliban also prohibits women from wearing attractive colors in public, using perfume, and wearing high heels that make a sound when walking.

The Taliban have additionally taken freedom on the streets away from women. They have imposed limitations on the time and location for protests by women. Women are also banned from traveling without a male (mahram) family member. This has had a huge impact on women’s ability to escape abuse.

While previously the EVAW Law provided crucial support for Afghan women, under the current regime there is no similar law or court. The lack of a provision to prosecute crimes committed against women has created an environment of impunity for the perpetrators, making violence normal and acceptable. We hear about disturbing cases in social media. For instance, in one case a woman went to court to file a claim against her husband. A decision was made by the person in charge of security at the gates of the court that the woman must either live with her husband with dignity or be sent to prison. As a result, women can also no longer report abuse. This lack of access to the criminal justice system has made women particularly vulnerable. Safe houses, which the Taliban sees as having caused the collapse of families, have been closed.

Overall, the Taliban’s point of view about women is a traditionalist, cultural view embodied within religious dogmatism, according to which the voice of women, their faces, and the sound of women’s feet are considered lustful and forbidden. Indeed, to the Taliban, women are mentally deficient. In their view, a proper Afghan man would not allow his wife to appear outside the house, to interact with a man other than those in her family, nor to wear colorful clothing. The outlook for women’s rights is bleak. We continue to ponder over these questions:

Will girls be allowed to return to school?

Will women be allowed to work?

Will women have freedom of movement?

Will women and girls be forced to marry?

Will they have access to justice?

Will women’s human rights be respected?

Sadly, it is difficult to be optimistic.