Gender Apartheid and the Limits of International Law: The United Nations General Assembly Resolution on Afghan Women and Girls Under Taliban Rule and India’s Obligations Under International Human Rights Instruments
By Guru Legal
Keywords
Taliban; Afghanistan; gender apartheid; UN General Assembly Resolution; CEDAW; Convention on the Rights of the Child; international human rights law; R2P; Responsibility to Protect; de facto authority; customary international law; India; women rights; international law; UNHCR
Abstract
On 6 July 2025, the United Nations General Assembly adopted a resolution urging the Taliban’s de facto authorities in Afghanistan to immediately reverse their policies excluding Afghan women and girls from education, employment, and public life, characterising the situation as constituting grave, worsening, widespread, and systematic oppression. The resolution called upon the de facto authorities to adhere to Afghanistan’s obligations under international human rights, refugee, and humanitarian law. This article examines the international legal framework applicable to the Taliban’s treatment of Afghan women and girls, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), customary international human rights law, and the emerging concept of gender apartheid as a category of international law. The article analyses the legal status and obligations of de facto authorities under international law, the enforceability of General Assembly resolutions, the Responsibility to Protect framework, and India’s specific obligations and interests in the context of the Afghan humanitarian crisis.
I. Introduction
The return of the Taliban to power in Afghanistan in August 2021, following the withdrawal of United States and NATO forces, marked the beginning of one of the most severe and systematic reversals of women’s rights in the contemporary world. Within weeks of the Taliban’s assumption of control, girls above the sixth grade were banned from attending school; women were progressively excluded from government employment, the civil service, NGO work, and public spaces; and a series of edicts issued by the Supreme Leader effectively confined Afghan women to the domestic sphere, stripping them of rights to education, employment, freedom of movement, and political participation that had been painstakingly established over the preceding two decades.
The United Nations General Assembly’s resolution of 6 July 2025 represents the most significant multilateral political response to date to the Taliban’s gender policies. The resolution, which was adopted by a substantial majority of Member States, framed the exclusion of Afghan women and girls as violations of Afghanistan’s obligations under international human rights law and called for a coherent approach among humanitarian, political, and development actors in engaging with the Taliban’s de facto administration. The resolution also endorsed the call for the immediate restoration of women’s and girls’ full, equal, meaningful, and safe participation in all areas of Afghan society.
This article proceeds as follows. Part II examines the international legal framework applicable to the Taliban’s gender policies. Part III analyses the legal status and obligations of de facto authorities under international law. Part IV assesses the enforceability and significance of the General Assembly resolution. Part V considers the Responsibility to Protect framework and the concept of gender apartheid. Part VI examines India’s specific obligations and interests. Part VII concludes.
II. The International Legal Framework: CEDAW, CRC, and Customary International Law
Afghanistan is a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), having ratified it in 2003, and to the Convention on the Rights of the Child (CRC), ratified in 1994, and the International Covenant on Civil and Political Rights (ICCPR), ratified in 1983. These treaty commitments, which were undertaken by the internationally recognised Government of Afghanistan, create binding obligations in international law to ensure non-discrimination on grounds of sex and the equal enjoyment by women and girls of civil, political, economic, social, and cultural rights.
CEDAW Article 10 obligates States Parties to take all appropriate measures to eliminate discrimination against women in education, ensuring equal access to all types and levels of education, equal access to scholarships and grants, and equal conditions of study. CEDAW Articles 11 and 13 extend these obligations to employment and participation in economic and social life. The CRC Article 28 obligates States Parties to recognise the right of the child to education, and to make primary education compulsory and available free to all and progressively make secondary education available to all children. These treaty obligations are not suspended by a change of government; they continue to bind Afghanistan under the principle of continuity of state obligations in international law.
Beyond treaty law, the prohibition of systematic discrimination against women on grounds of sex has attained the status of customary international law. The International Court of Justice in its advisory opinion in Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Rep 226 affirmed that some rules of international humanitarian law have become so fundamental that they bind all states as customary law, irrespective of treaty ratification. The systematic exclusion of half the population from education, employment, and public life on the basis of sex, to the degree and in the manner practised by the Taliban, violates the jus cogens norm of non-discrimination and constitutes a serious violation of peremptory norms of general international law.
III. Legal Status and Obligations of De Facto Authorities
The Taliban’s de facto administration occupies an uncertain position in international law. No state has formally recognised the Taliban as the legitimate government of Afghanistan, and the previous internationally recognised government’s seat at the United Nations is occupied by a representative of the former administration. The Taliban nevertheless exercises effective control over the territory and population of Afghanistan, satisfying the empirical criteria for state control as understood in international law.
International humanitarian law, including the Geneva Conventions and their Additional Protocols, applies to de facto authorities as well as recognised governments, by virtue of Common Article 3 of the Geneva Conventions and the customary international humanitarian law principles codified in the ICRC’s Customary IHL Study. International human rights law obligations, however, are formally owed by states, and the question of whether de facto authorities that are not recognised as governments bear equivalent obligations is more contested in doctrine. The prevailing view, endorsed by the UN Human Rights Council and its Special Procedures, is that de facto authorities exercising effective control over territory must respect, protect, and fulfil the human rights of persons under their control, even if they cannot formally be held to account as state parties to human rights treaties.
The General Assembly resolution of July 2025 implicitly adopts this position, urging the de facto authorities to adhere to Afghanistan’s obligations under international law. This formulation preserves the distinction between the de facto Taliban administration and the internationally recognised State of Afghanistan while placing the practical obligation to comply with international human rights norms upon those who actually exercise power over Afghan territory.
IV. The General Assembly Resolution: Enforceability and Significance
General Assembly resolutions are not legally binding in international law; they represent the collective political judgment of Member States and may, over time, contribute to the formation of customary international law or the interpretation of existing treaty obligations, but they do not in themselves create enforceable legal obligations upon states or de facto authorities. The July 2025 resolution accordingly does not create new legal obligations upon the Taliban administration beyond those already existing under Afghanistan’s treaty commitments and customary international law.
Nevertheless, General Assembly resolutions carry significant normative and political weight. A resolution adopted by a substantial majority of Member States represents an authoritative statement of the international community’s position on the matters it addresses, and serves as a basis for political pressure, humanitarian engagement strategies, and the conditioning of recognition, development assistance, and economic relations upon compliance with international human rights standards. The July 2025 resolution’s call for a coherent approach among humanitarian, political, and development actors reflects the emerging international consensus that engagement with the Taliban on humanitarian grounds cannot be divorced from accountability for the systematic violation of women’s and girls’ rights.
V. Gender Apartheid, the Responsibility to Protect, and Systemic Accountability
The concept of gender apartheid coined by analogy with racial apartheid, the crime against humanity enshrined in the International Convention on the Suppression and Punishment of the Crime of Apartheid 1973 has gained significant international traction as a framework for characterising the Taliban’s systematic exclusion of women and girls from Afghan public life. The UN Special Rapporteur on the situation of human rights in Afghanistan, Richard Bennett, and the UN Special Adviser on the Prevention of Genocide have recommended that the systematic oppression of women and girls in Afghanistan be recognised as gender apartheid in international law, potentially qualifying as a crime against humanity under the Rome Statute of the International Criminal Court 1998.
The Rome Statute Article 7(1)(j) defines gender as a crime against humanity as persecution on the grounds of gender, if it is part of a widespread or systematic attack directed against any civilian population. The International Criminal Court Prosecutor has the jurisdiction and, many scholars argue, the obligation to investigate and prosecute Taliban leadership for crimes against humanity including persecution on grounds of gender. The July 2025 General Assembly resolution, while not explicitly invoking the ICC, implicitly strengthens the normative foundation for such accountability.
The Responsibility to Protect (R2P) doctrine, endorsed by the 2005 World Summit Outcome Document (UNGA Res 60/1), provides that the international community has a responsibility to take collective action through the UN Security Council in cases where states manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. The Taliban’s systematic gender persecution, if characterised as a crime against humanity, would potentially engage the second pillar of R2P, triggering the international community’s responsibility to assist and, if necessary, to take protective action.
VI. India’s Obligations and Interests
India, as a significant regional power and a state party to CEDAW, the CRC, and the ICCPR, has specific obligations under international law to promote and protect the rights of Afghan women and girls, to the extent of its influence in the multilateral system. India is a long-standing member of the UN Human Rights Council and has consistently supported the mandate of the Special Rapporteur on Afghanistan. India supported the July 2025 General Assembly resolution, consistent with its principled position on gender equality and women’s rights in the international arena.
Beyond its multilateral commitments, India has direct interests in the stabilisation of Afghanistan and in ensuring that the country does not revert to being a safe haven for cross-border terrorism. India maintains a nuanced engagement policy with Afghanistan’s de facto administration, balancing its strong support for Afghan women’s rights with pragmatic interests in trade, connectivity, and regional security. India’s accession to the Convention on the Status of Refugees 1951 remains outstanding, which limits its formal obligations to Afghan refugees on its territory, though the Supreme Court of India has in various decisions extended constitutional protections under Article 21 to non-citizens, including refugees, on Indian soil.
India’s diplomatic engagement with the Taliban and its advocacy within multilateral forums for the rights of Afghan women and girls should be reinforced by domestic policy measures, including the expansion of educational scholarships and professional training programmes for Afghan women in Indian institutions, and active support for the International Criminal Court’s jurisdiction over the situation in Afghanistan.
VII. Conclusion
The United Nations General Assembly’s resolution of 6 July 2025 is a significant, if inherently limited, international legal and political response to the Taliban’s systematic oppression of Afghan women and girls. It affirms the international community’s commitment to the principle that gender equality and women’s rights are non-derogable obligations of international law, applicable to de facto authorities exercising effective control over territory, and that the systematic exclusion of women and girls from education, employment, and public life violates Afghanistan’s treaty commitments and customary international human rights law.
The limitations of the General Assembly resolution in particular, its non-binding character and the absence of a mechanism for enforcement underscore the structural inadequacy of the current international legal framework to hold de facto non-state authorities accountable for the most serious human rights violations. The development of the gender apartheid doctrine, the activation of ICC jurisdiction over crimes against humanity committed by the Taliban, and the coherent conditioning of international engagement upon compliance with women’s rights standards are the most promising pathways towards meaningful accountability. India, as a democracy committed to gender equality and as a significant regional actor, has both the obligation and the interest to support and advance these accountability mechanisms.
Frequently Asked Questions
Q1. What did the UN General Assembly Resolution of 6 July 2025 on Afghanistan say?
The resolution urged the Taliban’s de facto authorities to swiftly reverse policies that exclude Afghan women and girls from education, employment, and public life, describing their situation as grave, worsening, widespread, and systematic oppression. It called for adherence to Afghanistan’s obligations under international human rights, refugee, and humanitarian law, and pressed for a coherent approach among humanitarian, political, and development actors engaging with Afghanistan.
Q2. Are General Assembly resolutions legally binding in international law?
No. General Assembly resolutions are not legally binding under international law. They represent the collective political judgment of Member States and may contribute to the formation of customary international law or the interpretation of existing treaty obligations, but they do not create enforceable legal obligations upon states or de facto authorities. Their normative and political significance, however, is considerable.
Q3. What international law obligations apply to the Taliban’s de facto administration?
Afghanistan’s treaty obligations under CEDAW, the CRC, and the ICCPR continue to bind the State of Afghanistan, irrespective of the change of government. De facto authorities exercising effective control over territory are also considered to bear obligations under customary international human rights law and international humanitarian law, including Common Article 3 of the Geneva Conventions. The UN Human Rights Council has consistently affirmed that de facto authorities must respect the human rights of persons under their control.
Q4. What is gender apartheid and how does it apply to Afghanistan?
Gender apartheid is a concept, coined by analogy with racial apartheid, describing the systematic exclusion and persecution of women on grounds of gender as a crime against humanity. Under Article 7(1)(j) of the Rome Statute 1998, persecution on grounds of gender as part of a widespread or systematic attack on a civilian population constitutes a crime against humanity. Multiple UN Special Rapporteurs and scholars have recommended that the Taliban’s systematic oppression of Afghan women be formally characterised as gender apartheid and that the ICC Prosecutor investigate and prosecute Taliban leadership accordingly.
Q5. What is India’s position and obligation regarding the Taliban’s treatment of Afghan women?
India is a party to CEDAW, the CRC, and the ICCPR, and has consistently supported multilateral efforts to protect Afghan women’s rights, including supporting the July 2025 General Assembly resolution. India has specific interests in Afghan stability and regional security and maintains a pragmatic engagement policy with the Taliban administration. India’s international obligations and democratic values require it to actively support international accountability mechanisms, expand educational opportunities for Afghan women in India, and advocate within multilateral forums for the full restoration of Afghan women’s rights.
Bibliography
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