In the spring of 2023, a campaign was launched to create a new international crime of gender apartheid. Campaigners argue that the oppression of women and girls is so total and severe in Afghanistan and Iran that it is akin to the systematic and hierarchical racist oppression practised by apartheid South Africa. Their hope is that gender apartheid will be included in a new Crimes Against Humanity Convention, which happens to be scheduled for negotiation in the coming years. The Islamic Emirate of Afghanistan (IEA) shows no sign of moderating its policies towards Afghan women in the face of widespread global criticism, which it dismisses as foreign interference in domestic and religious matters. AAN’s Rachel Reid considers the campaign, the legal issues and how codification might happen. In March 2023, a group of Afghan and Iranian women launched the End Gender Apartheid campaign, which seeks to codify a new international crime of gender apartheid. “The Taliban have sought not only to erase women from public life, but to extinguish our basic humanity,” women’s rights campaigner Zubaida Akbar
told the United Nations Security Council on International Women’s Day, when the campaign launched. “There is one term that accurately describes the situation of Afghan women today – gender apartheid.”
The term ‘apartheid’ originated in South Africa, where it described the system of racial segregation and discrimination towards black South Africans and other non-white South Africans by the minority white government. It lasted from 1948 to 1990 (for more on this history, see here). In 1976, apartheid was established as an international crime against humanity and defined by the Apartheid Convention as:
[I]nhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.
Campaigners argue that this same language fits the situation of Afghan women and girls if ‘gender’ is substituted for ‘racial group’. Gender persecution is already criminalised (see a discussion of it in relation to Afghanistan by Ehsan Qaane for AAN here). However, campaigners argue that it does not sufficiently capture the deliberate, ideological and systematic nature of discrimination and segregation seen in Afghanistan and Iran.
Gathering support: from protestors to top UN officials
The campaign quickly took off, including inside Afghanistan where some women protestors incorporated the call for gender apartheid into their protests (see here). Key officials soon started to adopt the language. In June 2023, the demand for codifying gender apartheid was joined by UN Special Rapporteur on the Human Rights Situation in Afghanistan Richard Bennett and the UN’s Working Group on Discrimination Against Women and Girls in a joint report presented to the Human Rights Council. They argued:
[G]ender apartheid could be understood as inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one gender group over any other gender group or groups and committed with the intention of maintaining that regime. This is an accurate description of the situation documented in the present report, in which systematic discrimination against women and girls is at the heart of Taliban ideology and rule.
At the Human Rights Council session, their call drew important support from South Africa’s representative, who called on “the international community to take action against what the report describes as ‘gender apartheid’, much like it did in support of South Africa’s struggle against racial apartheid.” South Africa’s endorsement carried huge weight given how intertwined the term apartheid is with the struggle against racial apartheid there (though as discussed later, its support has since waned).
Another important voice in favour of codification was the Executive Director of UN Women, Sima Bahous, who in September 2023 told the UN Security Council:
[L]end your full support to an intergovernmental process to explicitly codify gender apartheid in international law. The 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 roll call of human rights grandees continued to grow, with UN High Commissioner for Human Rights Volker Turk offering his support for codification in a speech in October 2024. In the same month, support also came from the Committee on the Elimination of Discrimination against Women in its General Recommendation 40 (accessible here).
Iran and Afghanistan
The End Gender Apartheid campaign was jointly launched by Afghan and Iranian women. Yet, many of those advocating for codification have highlighted the actions of the IEA, rather than the Iranian government. Even the legal brief of the End Gender Apartheid campaign itself only cites Emirate policies. While there are similarities in the experiences of women and girls in Iran and Afghanistan, Iranian campaigners are the first to acknowledge that the situation in Afghanistan is, quite clearly, more extreme.
Iranians, however, point to a range of restrictions on women and girls, not least the ‘chastity and hijab law’,described by the UN Special Rapporteur on the Situation of Human Rights in Iran described in September 2023 as a form of gender apartheid, which imposes harsh punishments for violations of the compulsory dress code for women. It also expands the authority of the intelligence agency, the judiciary and the Islamic Revolutionary Guard Corps (IRGC) to identify and prosecute violations (see this brief from Human Rights Watch). While Iranian women have greater freedoms overall – including to education and freedom of movement – their government has been brutal in punishing rule-breakers. After Kurdish-Iranian woman Mahsa Amini died in custody on 16 September 2022 after having been arrested on allegations of violating the hijab rule, protests sprang up, spearheaded by women and centred on women’s rights within a wider call for civil rights. The Iranian authorities killed hundreds of protesters, men and women, and detained thousands more, some of whom were later executed (see Amnesty International and Human Rights Watch reports).
Despite Iran’s authoritarian fundamentalism resonating with campaigners, it is the policies of the IEA that has propelled their effort. Since 2021, the list of Emirate laws and practices that discriminate against women and girls in Afghanistan has steadily grown, from denying access to education for older girls to restrictions on freedom of movement, speech and employment (see here a list by the US Institute of Peace). In the face of protests by Afghan women, resolutions from the Security Council and statements from UN experts and special rapporteurs, the European (and other) parliaments condemning the mistreatment of women and girls, the IEA has dug in. Emirate officials have consistently dismissed accusations that the Emirate violates women’s human rights. For example, in a tweet on 26 September 2024, deputy spokesman Hamdullah Fitrat said:
The Afghanistan Islamic Emirate is blamed for violation of human rights and gender apartheid by some countries and factions. Human rights are protected in Afghanistan and no one is discriminated against.
Officials often argue that the Emirate is merely upholding religious values, sometimes also invoking cultural or Afghan norms. Emirate Minister of Higher Education Nida Muhammad Nadim, for example, on 4 December 2022, lambasted “Western-style” schooling for women as “against Islam and Afghan values” (see BBC Persian reporting). This was just before girls were banned from universities. In other comments by the minister, also cited in the same BBC Persian report, he referred to two earlier Afghan kings and how they had encouraged women’s education. King Amanullah (r1999-1929) had introduced the idea of women’s schooling, he said, from “the West and the infidels,” and had brought “a version of prostitution and blasphemy to Afghanistan.” The Emirate, he said, was just doing the same.
IEA officials also frequently invoke Afghan sovereignty to defend their policies on women and girls, insisting that any criticism is an attempt to interfere in Afghanistan’s domestic affairs. Spokesman Zabihullah Mujahid, for example, responding to a reporter’s question as to whether women’s rights would be on the agenda of the Doha III conference, said: “We acknowledge women are facing issues, but they are internal Afghan matters and need to be addressed locally within the framework of Islamic Sharia.” He told reporters that “IEA meetings, such as the one in Doha or with other countries, have nothing to do with the lives of our sisters, nor will we allow them to interfere in our internal affairs” (reported by Voice of America).
In response to IEA implacability and resistance to domestic or international pressure to amend its laws and policies on women and girls, Afghan women’s rights defenders have increasingly looked to international legal measures for relief and demanded international support in this effort. This has been seen not only in the gender apartheid campaign, but in the attempt to take Afghanistan to the International Court of Justice, explored by this author in an October report for AAN.
Legal and political arguments for having a new law
Proponents for the codification of the new crime argue that it addresses a gap in international law and that neither the crime against humanity of gender persecution nor the prohibitions on gender discrimination under international human rights law are sufficient to deal with the situation in Afghanistan. They say only gender apartheid captures the elements of animus and intent and is able to capture both the totality and the gravity of oppression. These are looked at in turn, below.
Reflecting the animus and intent
Proponents argue that gender apartheid, unlike other legal frameworks, captures the underlying ideology that considers women inferior to men and makes this a central guiding principle in the exercise of state power, just as black South Africans were cast as racially inferior and governed accordingly. One of the leading voices in favour of codifying gender apartheid is Karima Bennoune, a law professor and former UN Special Rapporteur for Cultural Rights, who writes that for the Taleban, “domination of women is a core element of the group’s ideology and a key prong of its governing platform.” Such animus is what legal scholar Patricia Williams referred to in the South African context as being “so deeply painful and assaultive” that it constitutes “spirit murder.” The crime of gender persecution, like racial persecution, does not require the presence of a motivating hatred or animus. Similarly, gender discrimination under international human rights law does not require intent to be present.
Reflecting the totality of the crimes
Proponents argue that the totality of the Taleban’s oppression of Afghan women and girls – its systematic and institutionalised nature – is better captured by apartheid than persecution. The crime of gender persecution can potentially be applied to severe abuses against women and girls, including widespread denials of education and freedom of movement or forced marriage, but it does not require that the persecution is institutionalised across the system of governance. An individual could, for example, be prosecuted on the basis of a narrow subset of acts that come under gender persecution, such as forced sterilisation, if it met the contextual requirements of all crimes against humanity. This idea was captured by the written comments of the government of Malta in October 2023 in relation to the Draft Crimes Against Humanity Convention:
The codification of the crime of gender apartheid will enable victims and survivors – present and future – to hold perpetrators to account for the totality of crimes committed by systematized oppression which the crime of gender persecution alone cannot and does not capture.
It is worth noting that gender persecution has been sorely underutilised – there has been only one charge of gender-based persecution ever brought to trial at the International Criminal Court (which largely failed, for reasons explained in this analysis). The court is taking steps to rectify this neglect – in December 2022, it released a new policy on gender persecution, and a year later, released a revised policy on gender-based crimes. Consequently, the discussion about the distinction between gender apartheid and gender persecution takes place without much case law.
Reflecting the gravity of crimes
A distinction that intersects with the arguments that only gender apartheid captures the elements of animus and can capture the totality and the gravity of oppression is that its codification would better convey the gravity of the harms, in terms of the severity of individual and collective acts. Human rights commissioner Volker Turk, when lending his support to the codification, spoke of gender apartheid better capturing “the extent and severity” of the impacts of “institutionalised regimes of systematic oppression and domination of women.”
Complicity by second states
Another benefit of codifying gender apartheid, say proponents, is that it would clarify the obligations of second states and international organisations, including the UN, because there would be a duty to avoid complicity in apartheid. The prohibition on apartheid contained in the Apartheid Convention, in addition to numerous resolutions at the UN General Assembly and UN Security Council condemning apartheid and reiterating states’ obligations, is seen as having made a significant contribution to ending the apartheid regime in South Africa. This was described in a 21 February 2024 letter of support to the gender apartheid campaign from South African jurists:
The international community responded comprehensively to the crime of racial apartheid, forcing accountability on the South Africa apartheid state, and imposing the obligation of member states at the United Nations to eradicate the institutionalized regime of systematic oppression and domination of black South Africans. Broadening the definition of the crime of apartheid to include gender would enable a structured global approach that is responsive to the institutionalized systems of domination and oppression of women, girls and others.
Similarly, Karima Bennoune argued at the Security Council in September 2023 that a “powerful aspect of the ‘gender apartheid approach’ is that no Member State can be complicit in or normalize the Taliban’s actions, as was the case with racial apartheid in South Africa.” One of the women spearheading the campaign, an Iranian lawyer at the Atlantic Council, Nushin Sarkarati, believes codification of the new law could provide a degree of clarity about state engagement that is lacking at present: “When we call for principled engagement it’s not clear how the General Assembly can make that happen. To hold other states responsible, in terms of trade, interactions, even humanitarian aid, we need to create more proper monitoring mechanisms.”
International Legal Equity
Finally, campaigners argue that a simple question of equity in international law is at stake, a point made to AAN by Human Rights Watch’s Heather Barr: “The question experts and scholars keep asking is ‘Why should crimes that are identical be ignored if it’s about gender rather than race.’” If the need was felt to criminalise both racial apartheid and racial persecution, Barr asked, surely the same should be true for gender apartheid and gender persecution. Nushin Sarkarati told AAN she is familiar with this double standard: “Any time you try to improve gender justice norms the push back is – why isn’t what you have already enough? But nobody says – why do you need racial apartheid when you already have racial persecution and discrimination.”
Support from LGBTQI+ groups
Support for codification has also come from Afghan and international LGBTQI+ activists, who hope that persecution on the basis of sexual orientation or gender identity would also fall under ‘gender apartheid’. Civil society groups have documented a worsening of abuses against LGBT people in Afghanistan since 2021, particularly those in same-sex relationships. However, an article supporting codification by an activist from the Afghan LGBT Organisation (ALO) and a women’s rights NGO Madre, also raised concerns about the risks of creating and interpreting new crimes involving the term ‘gender’ amid an increasingly fraught global discourse about definitions of sex and gender. Madre published an open letter to UN Secretary General António Guterres in September 2024, requesting a global study on the crime of apartheid to address this and other definitional concerns which one of the authors told AAN they expect “may be positively received” and be “completed within a year”. This is well within the timeframe that codification of gender apartheid entails, as explained below.
Political Obstacles: Back pedalling from South Africa
One potential political obstacle to the campaign emerged in 2024, when South Africa withdrew its support. This was a blow to campaigners since throughout 2023, it had been a prominent state supporters of codification in official venues, lending a degree of legitimacy that no other state could provide. At the Human Rights Council in June 2023 when Bennett and the Working Group on Discrimination Against Women and Girls report that supported codifying gender apartheid was discussed, the South African representative had spoken in favour, saying:
As a country that prizes the promotion and protection of the human rights of women and girls, my delegation therefore calls on the international community take action against what the report describes as “gender apartheid”, much like it did in support of South Africa’s struggle against racial apartheid.
Again, on 22 September 2023, South Africa co-sponsored a side event on gender apartheid at the UN General Assembly. A delegation from the End Gender Apartheid campaign, including Pakistani feminist campaigner Malala Yousafzai and Afghan campaigner Metra Mehran, visited South Africa in early December 2023. Mehran told AAN that their meetings in South Africa were very positive:
Based on the interactions we had in South Africa and with South African missions, everyone is very supportive. They echo our arguments, and the arguments that the women of Afghanistan make, that what is happening in Afghanistan is apartheid – it is systemic and institutionalised.
The ground shifted soon after this visit. By the time the Human Rights Council discussed gender apartheid again in June 2024, South Africa had reversed its position, expressing concern that the inclusion of gender apartheid might ‘dilute’ the original meaning of apartheid (see this summary of discussions).
What seems to have triggered this shift was South Africa throwing all its diplomatic weight into a legal challenge against Israel for its alleged genocide against the Palestinians; on 29 December 2023, it launched a case against Israel at the International Court of Justice.
The historical context for South Africa’s action was the alliance between Israel and apartheid South Africa and the decades-long common cause felt by the African National Congress (ANC) towards the Palestinian Liberation Organisation (PLO) and Palestinians in general. Since the end of white minority rule, the ANC as the governing party, has consistently used the term ‘apartheid’ to describe the Palestinians’ situation (documented in this timeline of the term in relation to Israel/Palestine; see also this Guardian article). This is also a position that has found recent legal backing at the International Court of Justice.
The ICJ case was a bold move for South Africa. An editorial in The Conversation argued that it has brought a politically weak government much-needed popular domestic support and burnished its image on the international stage. Mehran speculated that the South African government might be concerned that the gender apartheid campaign could “overshadow” the genocide case it is making against Israel at the ICJ. It may also feel it needs to use its political capital to garner support for the ICJ case, including, but not limited to, Muslim-majority states that might support Palestine but prefer to avoid the ramifications of gender apartheid being codified for conservative Islamic states.
Asylum, Potential Second State Responsibility and UN concerns
Another issue that may be problematic for campaigners is whether states fear that their asylum obligations might be affected by codifying gender apartheid. An article by human rights lawyer Mélissa Cornet cites a “European diplomat” admitting that many countries are concerned about “the political consequences of recognising gender apartheid, especially because it would bring pressure to grant unconditional asylum to Afghan women and girls.” It is not clear how much credence this position holds in practice, given that the European Court of Justice, the UN agency for refugees, and a growing list of countries have already said that Afghan women and girls should automatically be granted asylum based on the persecution they face as a class of people (as discussed in this AAN article). However, since one of the appeals for activists of codifying gender apartheid is that its recognition imposes greater responsibilities on second states, given the context of a growing hostility voiced by many Western states towards asylum seekers, this may be a factor in whether they support the gender apartheid campaign.
Another setback for campaigners appears to have come from the UN Secretary-General. AAN has heard from several sources that his office has circulated a memorandum, requesting UN staff to refrain from using the term ‘gender apartheid’. This does not appear to reflect a disagreement with the term itself, but a fear that by using it there could be implications for UN operations, even without it being codified in law.
Supporters of the gender apartheid campaign have speculated to AAN that for the UN to recognise that it is operating in a country where gender apartheid is practised would require it to distance itself for fear of being regarded as complicit with that apartheid regime. There has been a tense debate about degrees of diplomatic engagement and how humanitarian aid can be equitably delivered since the Emirate emerged in 2021, and UNAMA is already involved in a delicate dance around the employment of women in Afghanistan, where Emirate law banning the UN from employing women sharply diverges from the UN’s own equal opportunity employment obligations. The UN was also criticised for accepting IEA conditions for the June 2024 Doha III, in particular, that the only Afghans present would be its officials, with no other Afghans, including no women or civil society present (censure came from states, civil society and in this opinion editorial by UN Special Rapporteur Richard Bennett). For the UN to recognise gender apartheid would only strengthen the case of those who argue against its engagement with the Emirate.
AAN has not seen a copy of the memorandum and is unclear about the scope of the censorship it orders, but it would, at the very least, cover those staff who work directly for the Secretary-General, such as his Special Representative (SRSG). It would not, however, curtail the freedom of Special Rapporteur Richard Bennett, who holds a UN mandate but is independent of the UN (including not receiving a UN salary).
Overall, the alleged intervention by the Secretary-General is an irritant to the campaign. However, it can also be seen as confirmation of one of its driving ideas, that the language of apartheid itself has power in the real world.
How do you make a new international crime?
There would be two main pathways towards codifying gender apartheid. One is to amend the definition of racial apartheid under article 7(2)(h) of the Rome Statute, for which there are periodic opportunities for signatories. The other is to include gender apartheid in a new treaty that is due to be negotiated in the coming years on Crimes Against Humanity (CAH). The latter is the most promising route since the campaign to codify gender apartheid has emerged at a time when the process of creating a new treaty – that includes the crime of racial apartheid – is already underway. The hope for campaigners is that the definition of apartheid already contained in the draft treaty can be extended, or duplicated in large part, to include gender apartheid. Crimes against humanity are already codified under Article 7 of the Rome Statute of the ICC to include murder, extermination, enslavement, imprisonment, torture, sexual violence, and the crime of apartheid, when they take place within the context of a large-scale attack on civilians. Adoption of the CAH treaty would bring crimes against humanity in line with existing stand-alone treaties for other crimes – genocide, war crimes, torture and enforced disappearances.
On 22 November 2024, the Sixth Committee of the UN General Assembly, which is responsible for legal issues, approved by consensus a proposal for a Convention on the Prevention and Punishment of Crimes against Humanity (UN press release here). It set out a timebound process involving preparatory sessions in 2026 and 2027, with negotiations in 2028 and 2029 (see AP report). That may seem like a distant horizon, but we are already several years into the process (discussions about the treaty began well before 2019, when the UN’s International Law Commission first completed draft articles).
So far, the focus has been on the treaty as a whole rather than substantive discussions about individual articles, such as gender apartheid, but campaigners have been able to put down a marker for the negotiations. With the help of comments and written submissions from supportive states, gender apartheid, which was not in the original draft articles from the Law Commission, is now included in the summaries of discussions and written commentary that will, alongside the original draft articles, be part of the negotiations. So far, campaigners say, so good.
During the treaty discussions, Afghanistan, represented by a former Republic official, advocated for the codification of gender apartheid, as did Australia, Chile, Malta and Mexico, while Austria, Brazil, Iceland, the Philippines and the United States expressed a willingness to engage in future discussions about the concept (the discussions can be watched here). Only one state – Cameroon – argued that gender persecution was sufficient.
Conclusion
The debate about codification may feel like it happens in a separate realm from the reality of life in Afghanistan. For the Emirate, it may just be a note in the chorus of condemnation from around the world, dismissed as yet more international interference or hypocrisy.
Campaigners have a long road ahead to win broad enough state support to make codification a reality. Realistically, it could be many years before a new Crimes Against Humanity Treaty comes into force, with more years before prosecutors might try to test it. In the meantime, however, HRW’s Heather Barr thinks the campaign itself has played a mobilizing role:
While we are on the path, Afghan women have seen enormous benefits from the gender apartheid campaign. It has galvanised and united Afghan women’s rights defenders in a way that almost nothing else has. I keep hearing women’s rights defenders say they all agree on this.
Mehran agrees:
It’s really the one thing that all women I speak to agree on. There is so much tension on so many issues, but regardless of differences between generations, or language differences or where you come from or where you live, we all agree on the need for a gender apartheid to be recognised. … In fact, there’s frustration from some women protestors I’ve talked to as to why it is not codified already.
The reported actions of the Secretary-General suggest the term gender apartheid itself has power. There is a growing list of states, senior UN mandate holders and officials, jurists and rights advocates that now frequently use the term in relation to Afghanistan. This suggests that, however long codification might take, the term resonates so widely that it is already entering the human rights lexicon.
Edited by Kate Clark
Afghanistan Peace Campaign
