LGBTQI+ Afghan Victims of Apartheid: A Call for Recognition & Justice

[Artemis Akbary is the Co-Founder and Executive Director of ALO: the Afghan LGBT+ Organization. Kirby Anwar is a Senior Legal Fellow at CUNY School of Law and an Advocacy Director for MADRE.]

Taliban Soldiers brutally beat a trans woman and cut her hair while passers by gawked. They then blindfolded her, took her to an unknown location, and raped her. In a separate incident, soldiers beat a trans man’s relatives in their home and demanded to know where he was. The trans man, a police officer under the now-toppled government, had fled after being threatened with forced marriage by a Taliban soldier. Many of his lesbian and transgender colleagues, unable to flee, have been subjected to this fate. 

Dozens of stories like these have been documented by our organizations and our partners since the Taliban took control of Afghanistan in August 2021. Taliban members regularly sexually assault, jail, torture, extort and even kill individuals because of their sexual orientation or gender identity. 

The full scale of queer people facing persecution in Afghanistan is impossible to quantify, but the stories become more dire every day. The Taliban Supreme Court proudly announces on its official website the public flogging of individuals it accuses of homosexuality. A Taliban judge told reporters in July 2021 the punishment for being gay would be execution. The international community has declared these abuses crimes against humanity, including gender persecution. In full disregard, the Taliban released its new “vice and virtue” order in August, further entrenching its gender ideology, which relegates women to the status of property and seeks to eliminate LGBTQI+ people altogether. 

In addition to calling for accountability for the Taliban’s gender persecution, the United Nations should codify a new crime in international law, “gender apartheid”, in a treaty on crimes against humanity (CAH) now being negotiated at the UN. While gender persecution charges have been used to capture systematic discrimination, the core of apartheid as a charge is the system of oppression that perpetrators seek to maintain through inhumane acts like torture or other violence. Including gender apartheid in the draft CAH treaty would not only send a strong message of international condemnation of regimes like the Taliban’s, it would ideally also ensure that victims of such regimes can access justice for apartheid crimes committed after its codification into law. 

There’s a hitch, however. Whether LGBTQI+ apartheid victims are recognized or not depends on how gender apartheid is defined. Two proposals are now being advanced ahead of a new round of negotiations on the CAH treaty draft that will resume in October. One version, proposed by the UN Working Group on Discrimination Against Women and Girls earlier this year, would recognize all those targeted on the basis of gender, including LGBTQI+ people. 

Another version risks being interpreted in a way that leaves LGBTQI+ people out. This draft definition, included in a report by Richard Bennett, the UN’s special rapporteur on Afghanistan, represents a logical place to begin when drafting new treaty language, and it is important that the Rapporteur has advocated to codify gender apartheid. This proposed definition takes language on racial apartheid from the treaty that governs the International Criminal Court — the Rome Statute — and swaps out the word “racial” for “gender”, criminalizing: “inhumane acts …  committed in the context of an institutionalized regime of systematic oppression and domination … by one gender group over another gender group or groups.” 

The problem is that this outdated treaty language has been interpreted to require that victims share “biological” characteristics. Under the crime of racial apartheid, this interpretation has been understood to exclude Palestinians and Rohingyas from recognition as victims. The International Court of Justice reaffirmed this exclusion in its recent advisory decision which found Palestinians victims of the human rights violation of apartheid, but was silent on the crime of apartheid, despite states and UN experts describing Israel’s abuses this way.

The danger of an outdated definition of gender apartheid lies in how its victim “groups” will be interpreted. It will invite problematic questions like: Are LGBTQI+ people a “gender group”? If a perpetrator abuses someone because they mistakenly believe he is gay, would he not count as a victim? What about a trans woman who was attacked for identifying as a woman, but was assigned male at birth? Would the dual discrimination that lesbian women face be recognized? If a court did decide LGBTQI+ people were a “gender group,” would they have to “prove” their sexual orientation or gender identity—and, in the process, come out—in order to be recognized as victims? 

Especially at a moment where LGBTQI+ people and their rights are under attack in many parts of the world, there would almost certainly be efforts to convince courts to interpret apartheid gender “groups” in a retrograde way. Conservatives would call for all such groups to be determined “biologically” and would seek to leave trans people out of protected categories and exclude any analysis of sexual orientation. This is why the definition of apartheid as a crime must be updated to align with human rights law.

The more inclusive definition proposed by the Working Group defines gender apartheid as “inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one group over another group or groups, based on gender.” “Based on” is the key language that ensures inclusion. The added benefit of this language is that, if applied to “racial groups”, it would also align with human rights law understandings of “race” as a social construct. This would help to remove barriers to recognizing contemporary victims of apartheid as a crime, including Palestinians and Rohingyas. 

Bennet reinforced the call for codifying gender apartheid in a powerful New York Times op-ed headlined, “When It Comes to Women’s Rights, Do Not Appease the Taliban.” We agree. No one’s rights should be traded away to appease the Taliban. The world must continue to insist that Afghan women deserve full equality, and criminalizing gender apartheid would be another tool against patriarchal regimes like the Taliban’s. We must also be equally resolved that Afghans who are persecuted for their sexual orientation or gender identity have just as much right as all other Afghans to be free from violent systems of oppression–something Bennett also advocates.  

As work resumes on the draft CAH treaty in October, it is crucial that states adopt gender apartheid language that does not undermine recent progress in recognizing protections for LGBTQI+ people. After years of painstaking legal advocacy, International Criminal Court (ICC) Chief Prosecutor Karim Khan issued a policy in 2022 arguing that targeting LGBTQI+ people is a form of “gender persecution” as defined by the Rome Statute. Prosecutors at the ICC are in a position to bring a landmark case arguing that targeting women and LGBTQI+ people in Afghanistan is persecution.

Drafters should codify gender apartheid and must fine tune this definition during the CAH treaty negotiations to ensure it is in step with human rights law. With two definitions proposed in the UN, a global study on the crime of apartheid could help clarify an inclusive recognition of apartheid victims, and provide guidance for treaty drafters and other accountability initiatives. Activists are now calling for such a study. 

No one’s rights should be traded away for appeasement. We shouldn’t allow that to happen in Afghanistan, and we shouldn’t allow it at the UN. Negotiators have a moral duty to ensure LGBTQI+ people are fully protected by a crimes against humanity treaty. They should not settle for anything less.