Editor’s note: This is part of our series on gender in the draft crimes against humanity treaty.
Since its takeover of Afghanistan in August 2021, the Taliban has issued nearly 100 edicts and decrees severely restricting the daily lives of women and girls, removing them from public life – from Parliament, offices, salons, universities and schools, parks and playgrounds, and protests – and relegating them solely to child-bearers, child-rearers, and sources of unremunerated domestic labor. As former Afghan diplomat Nazifa Haqpal previously explained in Just Security, “[a]mid the Taliban’s despotic policies against Afghanistan’s population at large, their views and policies towards women form the core of their ideology.” The Taliban has deployed an institutionalized regime to systematically oppress and dominate women and girls, eviscerating any autonomy and agency over their lives and futures. It is a crime of sweeping dystopian vision unfolding before our eyes: the crime of gender apartheid. Yet as Professor Karima Bennoune previously explained, gender apartheid has yet to be codified under international law, despite the fact that the international community and victims groups have been calling for recognition for more than 25 years.
With the U.N. General Assembly’s Sixth Committee (Legal) scheduled to debate the proposed draft crimes against humanity (CAH) treaty articles next week, all eyes are on Member States to see whether they’ll meet the moment and recognize the CAH of gender apartheid. Earlier today, dozens of prominent jurists, scholars, and civil society representatives – including Afghan women’s rights defender Shaharzad Akbar, Nobel Laureates Shirin Ebadi, Malala Yousafzai, Nadia Murad, and this year’s winner Narges Mohammadi; South African jurists Navi Pillay, Justice Richard Goldstone, and Rashida Manjoo; former Prosecutor of the International Criminal Court Fatou Bensouda; former U.S. Secretary of State Hillary Clinton; and Professors Christine Chinkin and Leila Sadat – signed onto a joint letter and underlying legal brief specifically urging States to codify gender apartheid in the draft CAH treaty. The signatories proposed an amendment (bolded text) to the definition of apartheid to encompass “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, or by one gender group over another gender group or groups, and committed with the intention of maintaining that regime.”
The letter builds off of the grassroots End Gender Apartheid Campaign led by prominent Afghan and Iranian human rights defenders and supported by a diverse cross-section of international jurists and civil society leaders, calling for the recognition of gender apartheid as a crime. They join a rising chorus of international officials, lawyers, scholars, and human rights defenders, who recognize gender apartheid, including the U.N. Secretary-General, U.N. Working Group on Discrimination against Women and Girls, and U.N. Special Rapporteur on the Situation of Human Rights in Afghanistan, who have warned of the escalating gender apartheid in Afghanistan, and the Executive Director of U.N. Women, who has called on the international community to explicitly codify the crime of gender apartheid under international law.
The present authors are part of a team of attorneys at the Atlantic Council Strategic Litigation Project and Global Justice Center, who co-drafted the joint letter and underlying legal brief arguing for the inclusion of gender in the definition of apartheid in the draft CAH treaty. Drawing from the letter and brief, this article explains the legal and policy bases for the proposed codification of gender apartheid in the CAH treaty. The failure to codify gender apartheid has left a gap in the ability to hold perpetrators – both State and individual – to account for the totality of the crimes they have committed and to repair the distinct harms suffered by victims and survivors. The proposed amendment would bridge this gap, begin to rectify past omissions of women’s experiences from international criminal law, and equip the international community with a stronger tool for mobilizing against apartheid regimes.
Parallels Between South Africa and Afghanistan
Race-based apartheid was first codified under international law – under the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) and the Rome Statute of the International Criminal Court (1998) – in response to the apartheid system implemented in southern Africa between 1948 and the early 1990s. Today, the Taliban’s ever-deepening and institutionalized oppression and domination of Afghan women and girls evokes the dystopian ambition of the South African apartheid government. The Taliban seeks to maintain control over a subset of society systematically subjugated for their benefit and survival.
In this way, apartheid’s governance structures are designed to self-perpetuate. As set out in the legal brief, “[i]n both the South Africa and Taliban regimes, members of the oppressed group were/are, deliberately and thoroughly, cut off from opportunities which could have provided a path to advancement and autonomy, through wholesale denial of access to work, equal education, equal healthcare, justice, political power, civil liberties, and freedom of movement.” Both regimes aim(ed) to maintain dominance and entrench systems of governance that eviscerate self-control and any possibility of full personhood and advancement.
Just as the systematized domination and oppression of non-white people in southern Africa animated anti-apartheid activists and States to bring the crime of racial apartheid into being, the situation in Afghanistan should propel the discussion on the codification of gender apartheid forward. As with all recognized crimes, this codification is informed by past and current situations, and is proposed to apply equally to situations of atrocity not yet in existence.
Apartheid as Distinct from Other International Crimes
The intent and animating context of the crime of apartheid distinguish it from other international crimes. As we argue in the brief, apartheid requires “the commission of an inhuman act of requisite character with the intent to maintain an institutionalized regime of systematic oppression and domination.” These elements distinguish apartheid from the crime of persecution, which requires neither such intent nor context but concerns the “severe deprivation of fundamental rights” where the victim or victims have been targeted “by reason of the identity of a group or collectivity or targeted the group or collectivity as such.” The distinction between and coexistence of the crimes of apartheid and persecution are already recognized in the existing international legal framework. For instance, race-based apartheid and the crime of persecution on the ground of race are both stipulated in the Rome Statute, as replicated in the draft CAH treaty.
Although there may be facts in common among persecution and apartheid crimes, the importance of cumulative charging to capture the true nature and extent of criminal conduct cannot be overstated. Indeed, international courts have long recognized the value of charging perpetrators with cumulative rather than alternative crimes, even where the underlying acts are the same. As the International Criminal Tribunal for the former Yugoslavia explained (and Special Court for Sierra Leone and International Criminal Court further endorsed): “multiple convictions serve to describe the full culpability of a particular accused or provide a complete picture of his criminal conduct” (emphasis added).
Filling the Gap in Gender Justice
Since the earliest conceptions of international law, marginalized groups, including women and girls, have struggled to have their lived experiences formally recognized. By way of example, the elements of the crime of rape as a violation of international law weren’t defined until the International Criminal Tribunal for Rwanda’s (ICTR) 1998 Prosecutor v. Akayesu judgment, which also found that sexual violence could be a genocidal act. Previously, rape and other acts of sexual violence were often prosecuted as acts of torture. Similarly, the crime of forced pregnancy was not expressly listed as a crime under the jurisdictions of the ICTR or International Criminal Tribunal for the former Yugoslavia. It was not until the Rome Statute of the International Criminal Court that it was codified as a CAH.
As with these changes recognizing gendered crimes, the proposed codification of gender apartheid will better reflect both historical and ongoing realities of extreme, institutionalized oppression and domination. Indeed, as explained in the legal brief, the international community has made significant strides in understanding gendered crimes since negotiating the 1998 Rome Statute definition of “apartheid,” which is replicated in the draft CAH treaty. Member States now have the chance to reflect that progress by amending the definition to encompass gender apartheid.
The CAH Treaty as an Appropriate Legal Avenue
As the first major U.N. treaty on core international crimes since the Rome Statute, the draft CAH treaty presents a critical opportunity to recognize the crime of gender apartheid. Since apartheid is already defined in the draft treaty, the proposed extension will not require the creation of a completely new and separate crime, but rather a discrete amendment. This aligns with the stated object and purpose of the treaty: to fill the “key missing piece in the current framework of international law and, in particular, international humanitarian law, international criminal law and international human rights law.” Indeed, the International Law Commission specifically recognized that “codification of existing law is not the objective.” As some States have asserted, the Rome Statute is just a “starting point,” indicating room – and appetite – to diverge.
As we explain in the legal brief, the inclusion of gender apartheid in the CAH treaty would be extremely consequential. As in the South African context, codification will help mobilize diplomatic, legal, and social movements of resistance. It will help clarify the obligations of States and international organizations to avoid any part or complicity in violations of the jus cogens norm against apartheid, whether race- or gender-based. And it will help carve a pathway to accountability, including before the International Court of Justice.
The draft CAH treaty will be debated by the Sixth Committee at the UN General Assembly from October 11-12, 2023, which means Member States will have an opportunity to further inject gender justice into the discussions, including through recognition of the crime of gender apartheid. States will then have a further opportunity to submit written comments and observations on the draft CAH treaty by the end of 2023. The submissions will be published in January 2024 and inform the subsequent Sixth Committee session in April 2024, which will be designated entirely to a discussion of the draft CAH treaty. Finally, in the subsequent session in October 2024, the Sixth Committee will make a formal decision on whether or not to move forward with actual negotiation of the treaty.
The window for debate and comments on the draft CAH treaty will close before we know it, which is why immediate, strong, and express State support for the inclusion of the CAH of gender apartheid is imperative. Last week, in her remarks before the U.N. Security Council on the situation in Afghanistan, U.N. Women Executive Director Sima Bahous urged the members of the Council to “lend [their] full support to an intergovernmental process to explicitly codify gender apartheid in international law,” explaining that “[t]he tools the international community has at its disposal were not created to respond to mass, state-sponsored gender oppression. This systematic and planned assault on women’s rights is foundational to the Taliban’s vision of state and society and it must be named, defined and proscribed in our global norms so that we can respond appropriately.” The draft CAH treaty gives States the opportunity to act and recognize this extreme form of institutionalized and systematized gender-based oppression for what it is: a type of apartheid.
Updated Oct. 6, 2023, to reflect the Nobel Peace Prize awarded to Narges Mohammadi.