United Nations member States are formulating their positions on a proposed treaty to prevent and punish crimes against humanity, ahead of a January 2026 “preparatory committee” meeting that will lay the groundwork for amendments and full negotiations on a draft that has been under consideration since 2019. Some States and advocates specifically favor adding language that recognizes gender apartheid as an international crime. That presents a unique opportunity to fill a gap in international law to protect the rights — and lives — of women and girls.
Over the next four years at the U.N. General Assembly, States will offer amendments and debate the proposed treaty. The process, laid out in a December 2024 resolution, is scheduled to conclude in 2029. The final result is intended to be an essential addition to international law; while crimes against humanity have proliferated around the world, there is currently no specific and comprehensive international treaty to prevent and punish these egregious offenses, especially those committed outside a context of armed conflict. The absence of a specific treaty contributes to downplaying the gravity of crimes against humanity, diminishing public understanding and governmental response. The lack of a treaty also means there is no dedicated body of experts focused on interpreting and monitoring its enforcement, and limited pathways to litigate violations of state responsibility.
Women’s rights defenders have identified ways the treaty also should strengthen international protections for the rights of women and girls, including by making gender apartheid a crime under international law.
Leadership by Afghan Women’s Rights Defenders
New developments in international law often come in response to a specific atrocity or crisis. The most serious women’s rights crisis in the world currently is in Afghanistan, where the Taliban have imposed sweeping and systematic restrictions on the rights of women and girls, highlighting the need for stronger international protection.
The U.N. special rapporteur on the situation of human rights in Afghanistan has documented this crisis, and told the Human Rights Council in September 2024, “the Taliban’s institutionalized system of sex and gender discrimination, segregation, and oppression – in short, gender persecution, a crime against humanity…impacts almost the entire population. Unaddressed, the repercussions will shape future generations.”
Since the Taliban first ruled Afghanistan, from 1996 to 2001, many Afghan women’s rights defenders have been using the term “gender apartheid” to describe the Taliban’s abuses against women and girls. In 1999, Abdelfattah Amor, then U.N. special rapporteur on the elimination of intolerance and all forms of discrimination based on religion or belief, agreed, writing that “the Taliban has introduced what is in point of fact a system of apartheid in respect of women.”
Since the Taliban regained power in Afghanistan in 2021, their abuses against women and girls have driven a renewed discussion about gender apartheid and accelerated calls for recognizing it as a crime against humanity in an international treaty.
Many Afghan women’s rights defenders contend that the Taliban’s systematic and structural violations of the rights of all women and girls are of the same character and gravity as the acts of apartheid criminalized under the Rome Statute that established the International Criminal Court (ICC), with the sole difference being that the Taliban’s crimes are based on gender rather than race.
They make a persuasive case that creating an international crime of gender apartheid is needed to fill a gap in international law as it relates to women’s rights, and to ensure there can be accountability for the totality of crimes committed against women and girls based on gender.
The call by Afghan women’s rights defenders has received strong support from human rights leaders and experts at the U.N., including the U.N. high commissioner for human rights, the executive director of UN Women, the CEDAW Committee, which interprets the women’s rights convention, the U.N. Working Group on Discrimination Against Women and Girls, and the special rapporteur on the situation of human rights in Afghanistan.
Crime of Apartheid
The term apartheid has its origins in South Africa, where white supremacist colonial governments created and brutally imposed a system of segregation and oppression based on race. Apartheid policies determined where people could live and work, where they could study and what they were permitted to learn, and how they could, or could not, move about. Under South Africa’s Population Registration Act of 1950, discriminatory policies were imposed against people not categorized as white, with the worst abuses falling on Black people, who were designated as “native.”
An international outcry led in 1973 to States adopting the International Convention on the Suppression and Punishment of the Crime of Apartheid (the Apartheid Convention), which defined apartheid as a global, universal crime against humanity. In 1994, the system of apartheid was formally dismantled in South Africa but the deep inequities created during apartheid continue to have lingering harmful effects.
Much international law has developed through efforts to craft a global response to horrific situations, and the abuses in southern Africa have had a long-term impact on international law. In 1998, four years after the end of apartheid in South Africa, and in the wake of the atrocities in Rwanda and the former Yugoslavia, States adopted the Rome Statute establishing the ICC.
The Rome Statute includes apartheid, characterizing it as a crime against humanity and defining it as “inhumane acts…committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.”
The Rome Statute’s requirement for the crime of apartheid — that it be characterized by an institutionalized regime (which is to say, systematic laws or policies enforced by the State or a similar authority), and the intent to maintain such a regime — distinguishes such violations from the crime against humanity of persecution, defined by the Rome Statute as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” Although under the draft articles on crimes against humanity, both must be committed as part of a systematic or widespread attack directed against a civilian population to qualify as crimes against humanity, it is only apartheid where a clear finding of an institutionalized regime and intent to maintain that regime must be made. As discussed below, persecution and apartheid, when based on race, already exist as separate and complementary crimes against humanity and have done for decades.
The international crime of apartheid in both the Apartheid Convention and the Rome Statute is applicable specifically to “racial groups,” though race has been understood under international human rights law and international criminal law jurisprudence to also include descent and national or ethnic origin.
Questions Regarding Gender Apartheid
It is important to examine the possible international legal consequences of incorporating gender apartheid into the proposed crimes against humanity treaty. The following are some of the questions that have frequently been raised, along with brief responses, to guide States and others as they consider their positions on making gender apartheid a crime within this treaty.
What would be the threshold for a finding that the crime of gender apartheid has been committed?
Similarly to racial discrimination, discrimination against women and girls is also a matter of degree. Racial discrimination continues to occur in many countries, if not all, and many governments fail to take sufficient actions to prevent and respond to racial discrimination.
Only the most egregious systematic violations, however, meet the threshold for apartheid — specifically when, as under the Rome Statute, “inhumane acts…[are] committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.”
The definitions of apartheid in the Apartheid Convention and the Rome Statute set a high threshold for what acts can constitute this crime, and this has been reflected in the sparing invocation of these laws. As such, apartheid is a crime applicable only under a very specific set of circumstances, and there have been only a few situations in which it has been invoked.
Our organization, Human Rights Watch, has documented violations that it deems to qualify as the crime of apartheid in Myanmar authorities’ treatment of Rohingya people and Israeli authorities’ treatment of Palestinians. The International Court of Justice, in a 2024 advisory opinion, found Israel responsible for violating Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination, which obligates governments to “prevent, prohibit, and eradicate all racial segregation and apartheid.” There has yet to be a single, completed prosecution of an individual for the crime of apartheid anywhere in the world, although a case involving prosecution of apartheid is currently pending in South Africa’s courts.
If gender apartheid were included in the crimes against humanity treaty, the crime of gender apartheid would have a similarly very high threshold as does the current crime of apartheid. No country has achieved gender equality, and many governments discriminate against women and girls or fail to take adequate steps to prevent discrimination. Those violations trigger obligations under several international human rights and humanitarian law instruments, but only in certain circumstances would such acts constitute apartheid. Only the most egregious situations could potentially meet this threshold.
How would a finding of gender apartheid affect humanitarian assistance to and other forms of engagement with a State?
It is important to emphasize that if gender apartheid became recognized as a crime under international law, it would not apply retroactively.
In the event gender apartheid became an international crime, and a State was found to be responsible for crimes against humanity that included gender apartheid, authorities from other States have responsibilities to prevent, suppress, and punish the crime, including not aiding its commission, as with other crimes against humanity.
The obligation imposed on States is one of due diligence. Including gender apartheid in the treaty would create a framework for States to assess their engagement with such a situation. However, it does not require or proscribe particular types of actions, which would be unique to each circumstance.
Humanitarian aid should never be denied, and there are many examples of how aid has been and can be provided without supporting a government in committing crimes against humanity. Donors have found ways to provide humanitarian assistance to both Rohingya and Palestinian people while they have faced what some observers have determined to be apartheid.
Does the crime of gender persecution provide sufficient protection for women and girls?
The crime against humanity of persecution based on gender is already an international crime under the Rome Statute and is included in the current draft articles for the crimes against humanity treaty. However, the availability of gender persecution as a tool for accountability does not mean that it would be redundant to also include gender apartheid as a crime under international law. There is no hierarchy among crimes against humanity – all are extremely serious crimes, with the same obligation on States to prevent the crime. Gender apartheid would cover elements and aspects of gender-related harm not covered by the crime of gender persecution, such as the way that governance can be built on a foundation of extreme gender discrimination.
As noted above, the Rome Statute’s requirement of an institutionalized regime of systematic oppression and domination by one group over another group distinguishes it from the crime against humanity of persecution, defined by the Rome Statute as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.”
Adding the crime of gender apartheid to international law would fill a legal gap and provide consistency in how international law responds to crimes based on race and crimes based on gender.
The crime of gender persecution is rarely used and often not well understood by many involved in international criminal law. One key reason for this is the limitation on the crime of persecution imposed by the Rome Statute requiring that it can be found only in conjunction with another crime against humanity. Human Rights Watch is also urging the removal of this requirement, to make persecution, including gender persecution, a stand-alone offense. This would make gender persecution more available and a more useful tool in responding to grave abuses based on gender.
The crimes of racial persecution and apartheid coexist. They complement each other and together help move toward potential accountability for the totality of crimes committed based on race. The co-existence of gender persecution and gender apartheid would do the same.
The Crimes Against Humanity Treaty Process
The crimes against humanity treaty process presents a unique and time-bound opportunity to incorporate the crime of gender apartheid into international law. Eleven States have already signaled an interest in discussing the inclusion of gender apartheid, and other States behind closed doors have pledged future consideration.
The activism of Afghan women and the systematic abuses by the Taliban have highlighted a crucial gap in international protections for women and girls. The crimes against humanity treaty process provides an opportunity to fill that gap and increase protections for women and girls around the world, signaling to all countries that building systems of egregious discrimination and violence against women is not tolerated by the international community. Although the path to making gender apartheid a crime under the new treaty is a long and uncertain one, States making it a priority to include gender apartheid would push back against growing normalization of Taliban abuses, and would be an important complement to other urgently-needed efforts to hold the Taliban accountable.
All States should support this crucial call by Afghan women, for women around the world. They should make it a priority to actively work to ensure the inclusion of gender apartheid in international law, including in the draft crimes against humanity treaty.
