(Editor’s note: This is the final of three articles analyzing a recent “resumed session” of the U.N. General Assembly’s Legal Committee to discuss Draft Articles on the Prevention and Punishment of Crimes Against Humanity. See also the overview, and an analysis of gender justice positions for the proposed treaty.)

The United Nations Special Rapporteur on Afghanistan next month will present his mandated report to the Human Rights Council on the “phenomenon of an institutionalized system of discrimination, segregation, disrespect for human dignity and exclusion of women and girls.” The rapporteur has confirmed that at least one aspect of the report will examine the unfolding gender apartheid in Afghanistan.

The assessment may help build the growing movement to recognize the concept of gender apartheid and codify it as a crime against humanity, momentum demonstrated during a recent discussion of a proposed treaty on crimes against humanity during a “resumed session” of the U.N. General Assembly’s Sixth (Legal) Committee in April. The case of Afghanistan and the session on the draft treaty highlight the issues at stake as the Sixth Committee prepares to convene in October to determine next steps on the convention, especially a decision on whether to proceed to formal negotiations.

The egregious and deteriorating human rights situation for Afghan women, girls, and others was apparent during a recent U.N. Human Rights Council “Universal Periodic Review” for Afghanistan, required of U.N. member States every 4.5 years. As outlined by the Office of the U.N. High Commissioner for Human Rights for the review and enumerated during the required Council session by the Permanent Mission of Afghanistan, which is still recognized by the U.N. bodies in Geneva although it was appointed by the former government, the Taliban regime continues to tighten its grip. It is promulgating edicts, decrees, and policies that eviscerate the remnants of women and girls’ individual autonomy, rights, and freedoms. And it enforces these restrictions punitively and often violently, through arbitrary detention, sexual abuse, torture and cruel, inhuman or other degrading treatment and punishment, as well as other unlawful means. As part of the review, multiple States highlighted evidence of the systematic and institutionalized violation of women’s rights, including by using the term that Afghan women have been clear is the best characterization of their experience: gender apartheid.

Legal recognition of gender apartheid as a crime under international law would help to squarely tackle phenomena such as the Taliban’s dystopian regime of systematic gender-based oppression, domination, and subjugation. This animating context and the specific intent to maintain such an institutionalized regime of systematic oppression and domination is what distinguishes gender apartheid from other existing international crimes such as gender persecution. As we and colleagues previously wrote, U.N. member States have a unique and time-sensitive opportunity to codify the crime of gender apartheid in the proposed crimes against humanity treaty. The international community must act immediately to address and punish the swath of serious human rights violations and core international crimes being perpetrated – to date, with staggering impunity.

This will require using all possible legal tools to hold the Taliban to account, including the ongoing ICC investigation of alleged crimes against humanity and war crimes committed in Afghanistan since 2003; a potential International Court of Justice case alleging violations of the Convention on the Elimination of All Forms of Discrimination against Women; and universal jurisdiction cases in foreign jurisdictions against individual Taliban perpetrators. Each of these legal pathways is complementary and should be pursued in parallel, with the full and meaningful participation of Afghan jurists and civil society.

Legal progress has been made in the ongoing global initiative to codify gender apartheid, and States should continue to signal their solidarity with Afghan women, girls, LGBTQI+ individuals, and others, who have long led efforts to recognize gender apartheid.

10 States Express Openness to Exploring Codification

To date, 10 U.N. member States have expressed their openness to exploring the codification of the crime of gender apartheid in the proposed treaty, currently in the form of the International Law Commission’s (ILC’s) Draft Articles on the Prevention and Punishment of Crimes Against Humanity. As previously explained, six States (Afghanistan, Australia, Brazil, Malta, Mexico, and the United States) referenced the possibility of codifying gender apartheid in their December 2023 written comments on the ILC Draft Articles. At the April 2024 resumed session, five of these States reiterated their support to explore codification and four new States (the Philippines, Chile, Iceland, and Austria) similarly indicated their support. Given that 68 States’ views were represented during the applicable discussion, that means 13 percent of the States raised gender apartheid. As the co-facilitators noted in their Oral Report, several States “suggested incorporating gender-based crimes, such as ‘gender apartheid’ … as well as adopting a cross-cutting gender dimension in a future convention.”

These developments are significant in several ways. First, the 10 States’ interventions are quite remarkable given that the joint civil society proposal to include gender apartheid in the proposed treaty was only presented to States six months ago, and the U.N. Working Group on Discrimination against Women and Girls issued a communication just one month ago calling for codification in the treaty. Now that the 10 States’ positions on gender apartheid were documented in written comments in December and/or the chair summary from the April resumed session, the proposal to explore inclusion of a crime of “gender apartheid” is now formally part of the record that will inform future diplomatic negotiations on the potential treaty.

Second, the cross-regional nature of the States that have expressed openness to exploring gender apartheid codification is noteworthy: among them, three States hailed from Latin America, two from the Asia-Pacific, and three from Europe. Their diversity speaks to the growing recognition across regions and cultures of the threat of the Taliban’s ongoing perpetration of gender apartheid and the urgent need for an international legal response. These States seem not only to be responding to the ever-deteriorating situation on the ground for women, girls, and others in Afghanistan, but also the risk that, if the Taliban’s institutionalized regime of systematic gender-based oppression and domination – and their intent – is not addressed and criminalized, the international community might fail to prevent and protect against its recurrence in other contexts. The international legal system cannot punish what it has not named.

Third, although only 10 Sixth Committee delegations have expressly referenced the potential codification of “gender apartheid,” other States have indicated support for making amendments to the Draft Articles for the definitions of crimes, which the ILC largely transposed from the Rome Statute that created the International Criminal Court. At the April resumed session, 42 delegations indicated support for amending the definitions of crimes in, or adding new crimes to, Article 2 of the draft. Of those States, 13 indicated their openness to doing so specifically for gender-based crimes. These are promising signs that a wider consensus is coalescing in support of recognizing and codifying gender apartheid.

Sustaining Momentum Going Forward 

This fall, the Sixth Committee will have to decide on how to proceed with the Draft Articles. During the April resumed session, States were asked to share their views on the ILC’s recommendation that the Draft Articles form the basis of a treaty. Of those who spoke, the vast majority – more than 70 — supported the idea that the appropriate next step in the process is negotiations, whether under the ambit of the U.N. General Assembly or at an international diplomatic conference. But the Sixth Committee will need to make a decision on a resolution to proceed to formal negotiations, whether by consensus or a vote, and, as Leila Sadat, director of the Crimes Against Humanity Initiative to write the world’s first global treaty on crimes against humanity, wrote for Just Security, “a handful of States” have used the Sixth Committee’s consensus tradition to block the advancement of the treaty.

In the meantime, the international community should continue to use the term gender apartheid in all their engagements on Afghanistan, including at the U.N. Security Council, as well as the upcoming June Human Rights Council session where the Special Rapporteur on Afghanistan will present his report. The continued reinforcement of the concept of gender apartheid – even as a political and contextual matter – is a much-needed bulwark against the normalization of the Taliban regime, even as work continues to develop the international legal framework to encapsulate and punish the Taliban’s dystopian conduct and intent.

IMAGE: Taliban security personnel stand guard as an Afghan burqa-clad woman (R) walks along a street at a market in the Baharak district of Badakhshan province on February 26, 2024. (Photo by WAKIL KOHSAR/AFP via Getty Images)