Bernardo Carvalho De Mello, PhD Candidate, Newcastle Law School

Introduction

In August 2021, the Taliban’s return to power in Afghanistan ushered in a regime of severe repression, with women and girls experiencing the most extreme rollbacks of their basic rights. Over the past four years, Taliban authorities have systematically barred women and girls from education beyond primary school, banned most employment for women, and erased female participation from public life through draconian edicts. These actions have been widely condemned as egregious human rights violations – and increasingly recognised as international crimes. The United Nations Special Rapporteur on Afghanistan has warned that the Taliban’s “weaponized” use of law and policy to oppress women and girls amounts to crimes against humanity. Facing an escalating human rights crisis, Afghan activists and international NGOs have long urged stronger accountability measures. In a landmark move, the UN Human Rights Council heeded these calls: on October 6, 2025, it unanimously approved the creation of an independent investigative mechanism to document and preserve evidence of atrocities in Afghanistan, with a special focus on abuses against women and girls. This academic analysis examines the significance of the new mechanism through a feminist, intersectional, and decolonial lens – exploring the challenges of documenting abuses under Taliban rule, the avenues for pursuing justice (from the International Criminal Court to universal jurisdiction), the gendered dimensions of the Taliban’s crimes, and how ongoing documentation can help prevent further rights decay as well as enable future prosecutions.

A New UN Investigative Mechanism: Mandate and Importance

The UN Human Rights Council’s resolution establishes an “ongoing independent investigative mechanism” for Afghanistan – essentially an accountability body tasked with collecting, consolidating, and preserving evidence of serious violations of international law. Modelled on similar mechanisms for Syria and Myanmar, the new body will investigate past and ongoing abuses, identify those responsible, and prepare case files that could be used to facilitate fair criminal proceedings in the future, whether in national courts, regional tribunals, or international courts. Crucially, the mechanism’s mandate explicitly includes Afghanistan’s recent atrocities under Taliban rule, especially the regime’s current abuses against women and girls, which amount to gender persecution. In other words, it will document the Taliban’s gender-based repression as potential war crimes or crimes against humanity.

Importantly, this is not a one-sided effort. The mechanism is empowered to examine crimes by all actors in Afghanistan – not only Taliban officials, but also members of the former U.S.-backed government, local warlords, insurgent groups like Islamic State Khorasan (ISKP), and even international military forces. This broad scope sends a message that there will be no impunity or “hierarchy of victims”: every perpetrator of grave abuses, whether the Taliban or others, is on notice that evidence is being collected for potential prosecution. The inclusive mandate also reflects a decolonial sensitivity – aiming to avoid double standards whereby only global South actors are held accountable. By including atrocities committed by international forces and past governments, the mechanism acknowledges the entrenched impunity that has spanned decades of conflict in Afghanistan.

Documenting Abuses Under a Repressive Regime: Legal and Practical Challenges

While the new mechanism’s mandate is clear, documenting atrocities in Taliban-controlled Afghanistan presents enormous challenges. The de facto authorities in Kabul reject the premise of international scrutiny and have already proven uncooperative – for instance, they have refused visas to UN human rights monitors, including barring the Special Rapporteur from entering the country. The Taliban’s obstruction and denial of access mean that investigators must get creative to gather evidence. On-the-ground fact-finding missions are virtually impossible, so the mechanism will likely rely on remote investigations: interviewing refugees and survivors in exile, leveraging testimony via secure communications, and analysing open-source intelligence (such as photos, videos, and satellite imagery) that can corroborate alleged abuses. Local Afghan activists (often operating anonymously or from abroad) play a crucial role in this evidence-gathering by clandestinely documenting incidents at significant personal risk. However, engaging with witnesses inside Afghanistan carries grave dangers – people who provide information about Taliban crimes could face violent retaliation if exposed. A feminist and intersectional approach to documentation requires robust measures to protect survivors and witnesses, especially women, ethnic/religious minorities, and LGBTQ+ individuals who may be doubly vulnerable under Taliban repression. Human rights organisations have urged that states support and protect anyone who engages with the mechanism, for example, by offering safe refuge and refusing to deport Afghan asylum-seekers back to danger.

Another hurdle is ensuring that the collected evidence meets the standards of international courts. The mechanism’s investigators must employ rigorous methodologies so that witness statements, documents, and forensic data will hold up in future prosecutions. This entails preserving the chain of custody for physical evidence, verifying the authenticity of digital media, and carefully cataloguing the systematic nature of abuses. Under Taliban rule, many human rights violations are not one-off incidents but part of broad policies – for example, the enforcement of edicts against women or the targeted persecution of minority communities. Documenting such patterns requires not only recording individual stories but also compiling proof of official directives and a paper trail (or digital trail) of orders from the Taliban hierarchy. Here, the Taliban’s own pronouncements can ironically serve as evidence: the regime has issued over 100 written or announced decrees that restrict women’s freedoms and other rights. Each decree and its implementation (for instance, reports of women being flogged for violating the new “Virtue and Vice” rules) becomes part of the evidentiary record of an overarching oppressive system. The legal challenge will be to link crimes to specific perpetrators – identifying which Taliban officials or commanders were responsible for carrying out or ordering abuses. Given the Taliban’s secrecy and lack of transparency, building these linkage evidence files is difficult, but not impossible: the mechanism can draw on Afghan insiders’ testimonies, leaked documents, and the Taliban’s own public statements to map the chain of command.

Gender Apartheid in Afghanistan: A Crime Under International Law

Women and girls have been the primary targets of the Taliban’s abuses, and a feminist analysis is crucial to understanding the gravity of these crimes. Afghan and international experts increasingly describe the Taliban’s rule as a form of “gender apartheid” – a system of segregation and subjugation of women reminiscent of apartheid regimes (though based on gender rather than race). Since 2021, the Taliban have issued an onslaught of over 200 decrees and edicts that affect virtually every aspect of women’s lives. These include forbidding girls’ secondary and higher education, barring women from working in most sectors (even in aid organisations and schools), requiring women to be fully covered and accompanied by male guardians when in public, and banning women from public spaces like parks, gyms, and even female public baths. In August 2024, the Taliban formalised many of these edicts in a nationwide “Propagation of Virtue and Prevention of Vice” law, which further stripped women of basic rights and personal autonomy. For example, the law’s text explicitly prohibits women from travelling without a male guardian and mandates that any woman who leaves her home must “cover her voice, face, and body,” effectively silencing women’s voices in society. Violations of Taliban decrees are enforced by roaming morality police and courts with no female judges or lawyers – creating a nightmarish legal black hole for Afghan women, who have virtually no recourse or safe channel to seek justice. Women activists who dare protest these edicts have been met with brutal violence: numerous reports document female protestors being beaten, arbitrarily detained, “disappeared,” or even killed for peacefully resisting the regime’s gender discrimination. Others have been arrested and flogged simply for the “crime” of teaching young girls in secret schools, or for travelling without a male chaperone.

From an international law perspective, the Taliban’s institutionalised oppression of women is not merely a domestic policy issue – it rises to the level of atrocity crimes. The Rome Statute of the International Criminal Court (ICC) includes persecution on the grounds of gender as a crime against humanity. Indeed, in an unprecedented move, the ICC Prosecutor in early 2025 formally requested arrest warrants against the Taliban’s supreme leader (Haibatullah Akhundzada) and chief justice (Abdul Hakim Haqqani) for crimes against humanity – specifically, the persecution of Afghan women and girls. The ICC prosecutor found reasonable grounds to believe that these senior Taliban figures have systematically deprived women and girls of fundamental rights (education, employment, freedom of movement, expression, and more) in a deliberate policy to impose patriarchal control. This constitutes gender persecution: a coordinated attack against a civilian population (women) based on gender. Notably, the Prosecutor also highlighted that the Taliban’s campaign targets not only women and girls, but also those whom the Taliban view as not conforming to their rigid gender norms – including LGBTQ+ people and men who ally with women’s rights. Persecution of people based on sexual orientation or gender expression can likewise fall under crimes against humanity when it’s as systematic and violent as what is occurring in Afghanistan. An intersectional lens reveals how these abuses intersect: for example, a woman who is from an ethnic minority or who is queer faces compounded persecution under the Taliban’s theocratic and misogynistic rule. Every aspect of such a person’s identity – gender, ethnicity, sexuality – is a potential target for Taliban punishment. Afghan LGBTQ+ individuals, in particular, have faced unprecedented brutality, from beatings and death threats to reports of summary executions, all while being driven completely underground.

International experts have begun arguing that “gender apartheid” itself should be recognised as a crime under international law, analogous to racial apartheid. While the legal category is not yet formally codified, the term powerfully captures the lived reality in Afghanistan: the Taliban have created a state order in which women are segregated, erased, and dominated as a class. This systemic misogyny is enforced through violence and fear, meeting the threshold of an “other inhumane act” intentionally causing great suffering or severe mental and physical harm – another prong of crimes against humanity. For Afghan women, the daily denial of autonomy, education, and basic dignity is not just a social policy issue, but a mass victimisation that the world has a duty to address. The new UN investigative mechanism, by focusing on the gendered dimensions of Taliban abuses, will help ensure that these crimes are documented in detail and that the voices of Afghan women are centred in future accountability processes. Decolonial feminists emphasise listening to Afghan women’s own characterisation of their oppression; notably, Afghan women activists themselves have decried the Taliban’s rules as gender apartheid and sought international recognition of their plight. In this sense, the mechanism can amplify subaltern voices on the global stage, rather than imposing an external narrative.

Conclusion

The establishment of the UN’s independent investigative mechanism marks a decisive moment in the struggle for accountability in Afghanistan. By centering women and girls in its mandate, the mechanism acknowledges that the Taliban’s systematic repression is not a cultural aberration but a legal and moral emergency that demands an international response. Yet, as this essay has shown, the path to justice is fraught with obstacles—political, logistical, and epistemic. Conducting investigations under a regime that denies access and silences victims requires innovative, survivor-centred, and intersectional methodologies that prioritise safety and credibility. A feminist and decolonial approach insists that Afghan women, ethnic minorities, and LGBTQ+ individuals are not passive subjects of humanitarian concern but active agents of truth and resistance. The mechanism’s value thus lies not only in preserving evidence for future trials but also in affirming that these lives matter now—that their suffering will not vanish into silence. Whether through the ICC, universal jurisdiction, or yet-to-be-imagined forums, accountability remains possible. The world’s responsibility is to ensure that the documentation of these crimes leads to meaningful justice and to a reimagining of international law that truly embodies its promise of universality and equality.