In a world heavily controlled by men, it is no surprise that women’s rights have been slow to develop under international law. It was only with the surge in global feminist movements that concepts like gender equality came to the forefront. Today, several treaties and conventions promote and protect women’s rights. Yet, the lived reality of women on the ground is still far from ideal. As a result, there have been growing calls for the criminalisation of acts violating women’s rights.
One such call is for the criminalisation of gender apartheid. First articulated by Afghan women in the 1990s under the Taliban regime, the concept of gender apartheid is an extension of the traditional concept of apartheid where people are discriminated against based on race or ethnicity. The latter is recognised as a crime against humanity (CAH) under the International Law Commission’s Draft Articles on Prevention and Punishment of Crimes Against Humanity.
Since the Taliban reclaimed control over Afghanistan in 2021, there have been renewed calls for the inclusion of gender apartheid as a CAH. Experts from the United Nations (UN) have since defined gender apartheid as one ‘committed in the context of an institutionalised regime of systematic discrimination, oppression and domination by one group over another group or groups, based on gender, and committed with the intention of maintaining that regime’. The purpose of this blog post is to explore the ongoing discourse on the codification of gender apartheid, considering both the absence of significant literature and its gaining prominence in international law.
The Legal Basis of Gender Apartheid
Opponents of codification argue that there is no legal basis for gender apartheid in international law. A study done on behalf of the International Service for Human Rights found that there is neither treaty law nor customary international law providing a basis for a specific crime of gender apartheid. According to the study, express references to gender apartheid are only advanced by select individuals in aspirational terms, without legal support or evidence of State practice. Therefore, it may not be appropriate to codify gender apartheid since international law is fundamentally concerned with consent and consensus, which are both absent in the present situation.
On the other hand, proponents of codification, such as Karima Bennoune argue that the absence of express textual support recognising gender apartheid should not be a barrier to codification. On the contrary, existing provisions on apartheid should be re-interpreted to fit the needs of today’s society. Bennoune argues that such re-interpretation is not unprecedented in international law, citing examples in her article. One of which is how the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Committee included violence against women as a form of discrimination through General Recommendation No.19 despite the absence of the word violence in the CEDAW. Hence, re-interpretation of the definition of apartheid to include gender is possible, although it requires a bigger change in the existing definition compared to the CEDAW.
The clash between opponents and proponents of codification regarding the legal basis of gender apartheid is in part an argument over treaty interpretation. Does one stay true to the context, object and purpose of the treaty, or should treaties evolve with time? There is no easy answer. However, what is clear is that the concept of gender apartheid currently lacks both legitimacy and global recognition. As of May 2024, only 10 UN Member States have openly expressed willingness to explore the codification of gender apartheid. Therefore, it is unlikely for codification to take place any time soon.
The Presence of an Accountability Vacuum
Opponents of codification argue that there is no accountability vacuum, and therefore, there is no need for gender apartheid to be codified. This is due to the presence of Article 7(1)(h) in the Rome Statute, which includes gender persecution as a CAH. As recognised by the International Criminal Court’s (ICC) Office of the Prosecutor, gender persecutions are ‘rarely investigated adequately or charged’ and therefore there is a lack of jurisprudence on the matter.
However, the Office of the Prosecutor has stepped forth to clarify the application of gender persecution. The specific details of the elements required to prove gender persecution may be found here. Furthermore, the ICC commenced its first international criminal trial against an individual for the crime of gender persecution in 2018 amongst other crimes, showing that the ICC is actively seeking to utilise the existing provisions on gender persecution to bring justice to victims.
Without going into a detailed comparison, opponents of codification essentially argue that gender apartheid as currently envisioned is covered under the crime of gender persecution. Both acts involve a widespread or systematic attack against a civilian population. The Taliban’s acts of oppression against Afghan civilians, in particular women and girls, is part of a widespread or systematic attack as evident in their organisational policies. Therefore, it is already covered under the crime of gender persecution.
In contrast, proponents of codification argue that an accountability vacuum exists and that the crime of gender persecution is distinct from gender apartheid. They claim that gender apartheid is unique in animus and intent. Perpetrators of gender apartheid not only aim for the deprivation of rights but to ‘maintain an existent system of governance founded upon the systematic domination and oppression of another group or groups’. Therefore, the mens rea is fundamentally different.
However, this argument has also received pushback. According to Ahmad Ali Shariati the Taliban’s motivations ‘run deeper than mere regime preservation’ and extend to their deep-rooted political convictions intertwined with religious beliefs. Therefore, establishing a mens rea focused on the creation of a discriminatory regime may be inadequate to truly help women in Afghanistan. Shariati claims that gender persecution is therefore “better suited” to deal with the Taliban’s oppressive conduct which deprives women of their fundamental rights.
Moving Forward
At the end of the day, both opponents and proponents of codification will agree that more needs to be done to protect women against oppressive acts. However, the disagreement lies in how best to achieve that. On legal reasoning alone, the opponents appear to have a stronger basis. Shariati suggests that to hold the Taliban and similar regimes accountable, one could exert further pressure on the ICC to issue arrest warrants against Taliban leaders for gender persecution. Certainly, that would be a welcome measure in protecting vulnerable women.
Perhaps, it might also be meaningful to pivot the discussion from codification to the absence of meaningful enforcement mechanisms in human rights treaties. Despite Afghanistan being a party to and violating several human rights treaties such as the International Covenant on Civil and Political Rights, the Taliban has evaded any real responsibility. Until States come together to address the pervasive problem with enforcement, the effectiveness of international law remains fraught with hurdles.
Elsa Shalina Abdullah is a Juris Doctor candidate at the Singapore Management University.