On June 18, the U.N. Special Rapporteur on human rights in Afghanistan, Richard Bennett, presented his much-anticipated report, entitled “The phenomenon of an institutionalized system of discrimination, segregation, disrespect for human dignity and exclusion of women and girls,” at the Human Rights Council’s 56th Session. The report is hard-hitting in its criticism of the Taliban, who hold power in Afghanistan, with the Special Rapporteur underscoring that “[t]he system of discrimination, segregation, disrespect for human dignity and exclusion institutionalized by the Taliban is motivated by and results in a profound rejection of the full humanity of women and girls.”

The report’s analysis of how the Taliban’s choreographed deprivation of human rights “intermesh to establish and enforce an architecture of oppression that is difficult, if not impossible, for Afghans of all genders, but particularly women and girls, to evade or overcome,” is also reflected in the individual experiences of women and girls, such as Arzo. At age 15, her dreams of one day becoming a doctor now out of reach, Arzo drank battery acid in an attempt to take her life. When the Taliban banned Afghan girls from studying beyond the sixth grade, Arzo still had three years of high school ahead of her. The schooling ban sent Arzo into a deep depression.

Arzo’s case is not unique. While data is hard to come by, reports from Afghan mental health professionals and international organizations indicate that the rate of female suicides has increased dramatically since the Taliban takeover in August 2021, resulting in severe deprivations of women’s rights. The profound and ongoing damage to the psychological and physical health of women and their children is highlighted in the Special Rapporteur’s report. He recalls in one consultation, an Afghan woman telling him, “I was the breadwinner and now have no job, no income and my children are asking for food, I have no choice but to consider suicide.”

Through over one hundred decrees and edicts and their brutal enforcement mechanisms, the Taliban has institutionally and systematically banned or limited Afghan women and girls’ rights to education, right to work, freedom of movement, assembly, and speech, and restricted their access to justice and healthcare. Currently, Afghanistan is the only country in the world where girls cannot study beyond the sixth grade and are completely banned from higher education. The notorious Ministry of Vice and Virtue, carrying out the Taliban’s edicts and decrees, has continued to oppress and subjugate women institutionally and systematically. To retaliate against the Taliban’s persecution and domination, the women of Afghanistan have protested, demanding their equal rights, to which the Taliban has responded with arbitrary arrests of female protestors, detention, torture, and rape.

For nearly three years now, the Taliban’s systematic oppression of women has been their main mechanism to exercise and maintain power, making such oppression ideologically and pragmatically existential for the Taliban regime. Maintaining dominance of men and the State over women forms the core of the Taliban’s ideology as their indoctrinated movement. While women and girls are among those most deeply affected, it is important to understand that Afghans of all genders suffer under the Taliban’s institutionalized gender oppression. Women continue to be at the forefront of the resistance, but the Taliban have also detained and inflicted violence on men and boys who have defied or questioned their governance system. By punishing men and boys who do not enforce Taliban strictures on their female relatives, the Taliban are implicating and instrumentalizing men in enforcing a State-sanctioned system of gender-based domination, turning each family home into an oppressive micro-State.

The Taliban’s oppressive and despotic policies of removing women and girls from public life for purposes of entrenching power can best be described as “gender apartheid”—a term that does not yet have legal force, but which multiple U.N. experts, international NGOs and prominent individuals including Nobel laureates, former presidents, South African jurists and the former chief prosecutor of the International Criminal Court, all say should be codified as a crime against humanity under international law.

The effort to codify gender apartheid (with which we are both engaged as lawyers and advocates) received a significant boost from the report presented on June 18, with the Special Rapporteur stating that he is “firmly of the view that gender apartheid most fully encapsulates the institutionalized and ideological nature of the abuses in question and places the responsibilities of other international actors to respond appropriately squarely into view.” He goes on to state:

Codifying gender apartheid as a crime against humanity properly reflects its status as a crime that shocks the conscience of humanity and which could violate jus cogens, a peremptory norm of international law. As such, the Special Rapporteur considers that the institutionalized system of domination and oppression of women and girls in Afghanistan should propel the discussion of codification of the crime of gender apartheid forward, as the systematized domination and oppression of Black and other non-White people in South Africa animated anti-apartheid activists and States to bring the crime of apartheid into being, an act which helped end its practice.

In his report, the Special Rapporteur provides a definition of the proposed crime against humanity wherein gender apartheid would be understood as “the commission of an inhumane act in the context of an institutionalized regime of systematic oppression and domination by one gender group over another gender group or groups, with the intention of maintaining that regime,” and notes that  efforts towards a Draft Crimes Against Humanity Convention could open a door to a formal recognition of the crime, through an amendment to the definition of apartheid contained in Rome Statute Article 7(1)(j).

The Special Rapporteur underscores that the crime of apartheid recognizes the broad spectrum of potential victims, which is to say all those subjected to an inhumane act because of their resistance to an institutionalized regime of systematic oppression and domination: “In Afghanistan, victims of inhumane acts committed with the intent of maintaining the Taliban’s institutionalized gender oppression include not only women, girls, and LGBTQIA+ persons, but also men and boys, including because of active, allied resistance or for failing to police the conduct of ‘their’ women and girls.”

It is the authors’ conviction that a standalone crime of gender apartheid will provide the appropriate legal mechanisms to hold the Taliban accountable for the totality of their crimes by covering a wider scope of acts by adequately encompassing the nature of the crimes committed in situations like the Taliban-controlled Afghanistan. We reiterate the view of the Special Rapporteur that the codification of the crime of gender apartheid would not only “strengthe[n] the normative framework of international law, [but] recognition of the crime against humanity of gender apartheid would more profoundly underscore the duty of the States to take effective action to prevent and punish the practice.”

The Special Rapporteur’s report has been well received and overwhelmingly supported by Afghan civil society—including a supportive statement from Human Right Watch’s women’s rights researcher that States consider codifying gender apartheid and joint videos from leading Afghan women’s rights defenders in support. During the interactive dialogue of the Human Rights Council’s session, the Asian Forum for Human Rights and Development stated, “No words come close to describing the level of repression against women other than gender apartheid.” The Women’s International League for Peace and Freedom maintained, “The international community has a legal and moral duty to stand firm against gender apartheid and to hold the Taliban accountable for its crimes.” Welcoming the Special Rapporteur’s report, the Armanshahr Foundation/Open Asia, a member organization of the International Federation for Human Rights, indicated that the report “echoes our grave concerns over the nature and prevalence of the violations that are systematically committed in the country.” They further agreed with the Special Rapporteur’s assessment that it is high time for codification of gender apartheid under international law and maintained that the “ongoing negotiations for the treaty on crimes against humanity provide an opportunity to [codifying gender apartheid]. It would send a strong message to all, including the Taliban that the oppression of women and girls will not be tolerated.”

Globally, the call for recognition and codification of gender apartheid is swiftly gaining momentum. On June 17, for example, Amnesty International announced its support for codification of gender apartheid under international law. Amnesty International’s Secretary General, Agnes Callamard called for “[…] recognition of gender apartheid under international law to fill a major gap in our global legal framework.”

In October 2024, the U.N. Sixth Committee discussions on the draft crimes against humanity will resume to decide on whether or not to move forward with the formal negotiation of the treaty. This provides a time-sensitive opportunity to urge the Sixth Committee to include gender apartheid in the draft treaty. With this week’s report, the U.N. Special Rapporteur on human rights in Afghanistan has again recognized that the dire situation of women and girls in Afghanistan should be a catalyst for the recognition of gender apartheid, as has a cross-regional group of U.N. member States.

Despite this momentum, there are States who have yet to support moving the crimes against humanity draft treaty to negotiations, or who are reluctant to include gendered crimes. More States should rise to the call and recognize the Taliban’s extreme institutionalized and systematic gender-based oppression as gender apartheid. As the Special Rapporteur concluded: “Compassion for the women and girls of Afghanistan must be matched with action.” Afghanistan’s women and girls deserve no less.

IMAGE: Special Rapporteur on the situation of human rights in Afghanistan Richard Bennett is seen on a TV screen delivering his report during the 52nd UN Human Rights Council session, in Geneva, on March 6, 2023. (Photo by Fabrice COFFRINI / AFP) (Photo by FABRICE COFFRINI/AFP via Getty Images)