The Growing Imperative to Recognize and Codify Gender Apartheid: Demonstrating the Need and Responding to Critics (Part I)

[Azadah Raz Mohammad is a legal advisor for the End Gender Apartheid Campaign and a PhD candidate at the University of Melbourne. She is the co-author of the Handbook on Universal Jurisdiction: Holding the Taliban Accountable for International Crimes.

Akila Radhakrishnan is an independent human rights lawyer and gender justice expert. She is a legal advisor for the End Gender Apartheid Campaign.]

On March 8, 2023, International Women’s Day, Afghan and Iranian jurists and human rights defenders launched the End Gender Apartheid Campaign, which calls for codifying gender apartheid under international law. The effort to formally codify the concept was propelled by the long-standing calls of women from Afghanistan and Iran to recognize their experiences as gender apartheid. The campaign is supported by a diverse cross-section of international jurists, Nobel laureates, and civil society leaders – including the former Prosecutor of the International Criminal Court Fatou Bensouda; Nobel laureates Narges Mohammadi and Malala Yousafzai; and South African jurists Penelope Andrews, Justices Richard Goldstone and Navi Pillay, amongst others – who have specifically supported the codification of gender apartheid as an enumerated crime in the proposed UN Crimes Against Humanity treaty. Internationally, support for such codification of gender apartheid is gaining momentum, including among the U.N. High Commissioner for Human Rights, the U.N. Working Group on the Discrimination against Women and Girls, the UN Special Rapporteur on the Situation of Human Rights in Afghanistan, and Amnesty International. 

In the two years since the Campaign was launched, the opportunities to recognize and codify gender apartheid have strengthened; however, the campaign and its efforts have provoked challenges and critiques. Rather than revisit the situation in Afghanistan or the legal argument supporting codification, which we have articulated here, this piece looks at these opportunities, challenges, and critiques facing the project to codify gender apartheid and the way ahead.

Why Gender Apartheid?

A Victim and Survivor-centric Perspective

At the forefront of the campaign to recognize and codify gender apartheid are the voices of women, girls, and LGBTQI+ individuals from Afghanistan. As noted by the Special Rapporteur on the situation of human rights in Afghanistan, “Afghans, in particular women…consistently emphasize that the term “gender apartheid” most accurately describes the totality of the distinct and transgenerational harms committed against them.” 

This isn’t a new concept or term. Women’s rights defenders from Afghanistan first popularized the term during the Taliban’s takeover of Afghanistan between 1996-2001, when it imposed similar discriminatory measures against women, banning women from going to school, universities, work, leaving the house without a male chaperone, public participation, and accessing healthcare and justice.  The late Sima Wali was among the first Afghan women to call for recognition of gender apartheid in the 1990s, explaining, in 2002, that “the ferocity of attacks against Afghan women have been so severe and draconian that a new term, ‘gender apartheid,’ was coined to describe the extent of the new kind of horror aimed directly at them.”

In 1999, the U.N. Special Rapporteur on the Elimination of Intolerance and All Forms of Discrimination Based on Religion or Belief, Abdelfattah Amor, indicated in his report to the then-UN Commission on Human Rights that the women of Afghanistan were being subjected to a form of apartheid. Dismissing the Taliban’s demeaning treatment of women being based on Islamic principles, he stated that “it is tantamount to veritable apartheid against women, as women, and on the basis of specious interpretation of Islam.” 

Since the Taliban’s takeover, women and girls have been clear about their appeals to the concept and framework of gender apartheid. They have taken to the streets to protest, often with serious consequences. They have raised its importance in high-level UN discussions. And they are leading the way in the fight to recognize and codify gender apartheid as a crime against humanity. The advocacy for recognition and codification of gender apartheid has been a unifying framework for women across ethnicities, generations, and experiences in an otherwise divided Afghanistan. As stated by Agnes Callemard, Amnesty International’s Secretary-General, “Today we are joining the calls of courageous trailblazers, including women of Afghanistan, Iran and beyond, who have led the way in demanding recognition of gender apartheid in international law. States must heed this call. This form of institutionalized oppression must be named…We owe that recognition, rigour, and respect to the activists on the frontlines of the struggle for gender rights and equality, and we owe that justice to the victims and survivors of gender apartheid.”

Recognition and codification of gender apartheid also provide due regard and respect to the manner and terms of justice set by the victims and survivors of the Taliban. In a world where the Taliban has attempted to silence their voices and existence, honoring their calls,  following their leadership, and centering their agency is an essential counterbalance. 

Understanding the Systematic and Intersectional Nature of Harms

A key aspect of the call for the recognition of gender apartheid is the fact that there is currently no legal framework that captures the extent of gender-based harms caused by regimes like the Taliban. While discussions of the situation in Afghanistan often revolve around individual rights violations or restrictions, particularly those on the right to education and employment, it is the systematic and totalizing nature of the Taliban’s policies, practices, and directives that demand attention and fall into an accountability gap. 

The situation in Afghanistan is a sui generis situation of women’s rights – while gender discrimination exists all over the world, there is no other country where the rights of women, girls, and LGBTQI+ individuals are as thoroughly and systematically suppressed as Afghanistan under the Taliban. As the UN High Commissioner for Human Rights, Volker Turk, recently stated, “[I]n Afghanistan, women and girls are subject to State-sponsored gender apartheid that is unparalleled in today’s world. Virtual prisoners within their homes are denied the most basic and fundamental freedoms essential to normal life, including movement, education, and work.”

The Taliban’s very logic of governance and conceptualization of society relies on the oppression and domination of women, girls, and all those who transgress their rigid conception of gender, including LGBTQI+ individuals. As a crime of sweeping dystopian ambition, it goes beyond the deprivation of rights, severe or otherwise, because of the identity of a group (see below on the differences with gender persecution). It is this distinct men rea, to maintain a system of governance founded upon the systematic domination and oppression of another group or groups that perpetrators have accorded inherently lesser value that captures the difference between gender apartheid and other gender-based crimes.

In addition, taking an intersectional perspective on this system allows us to more fully understand the distinct ways that individuals and communities in Afghanistan suffer under this regime. As in South Africa, where under apartheid, all non-white people were targeted, it was clear that Black people were targeted particularly perniciously and suffered disproportionality. Similarly, in Afghanistan, while the same regressive logic of gender underpins their treatment of all individuals, the system cannot be understood without looking at the Taliban’s other intersecting bigotries, including ethnicity, religion, gender identity, and sexual orientation. For example, as Farkhondeh Akbari and Kobra Morandi have argued in the context of the impact of the Taliban’s policies on Hazara women, “gender, ethnicity, and religious identity amplifies the discrimination Hazara women face, shaping the nature and severity of abuses inflicted upon them.” Similarly, an examination of the experiences of lesbian, bisexual, and queer (LBQ) women by Basira Paigham highlights that “while women face severe violence, isolation and discrimination, LBQ women experience a double exclusion and discrimination due to the country’s conservative and patriarchal society and homophobic socio-cultural norms.” 

Growing International Recognition of the Legal Concept of Gender Apartheid 

In the two years since the launch of the Campaign, support for the concept of gender has rapidly grown, including at the state level. Albania has stated, “We need to call them by their name: yes, it is gender apartheid. The word is strong, but it is the right word. It reflects the horrible reality.” Australia, Austria, Brazil, Chile, Iceland, Luxembourg, Malta, Mexico, the Philippines, and the United States have expressed openness to the recognition and criminalization of gender apartheid as a crime against humanity. Malta, for example, has expressly proposed that “the crime of apartheid should be broadened to include 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 and committed with the intention of maintaining that regime.” The European Parliament has called “for the EU to support the recognition of gender apartheid as a crime against humanity.”Moreover, the support and reference to gender apartheid have been supported and increasingly used by senior UN leadership and international organizations. For instance, the term has been used by the UN Secretary-General, different UN bodies and officials, such as the Executive-Director of UN Women, the UN High Commissioner for Human Rights, the Special Rapporteur on the Situation of Human Rights in Afghanistan, the UN Working Group on Discrimination against Women and Girls, and the Committee on Elimination of All Forms of Discrimination against Women. In addition, international NGOs and groups are also increasingly using the term and supporting codification, including Amnesty International, the Nobel Women’s Initiative, Human Rights Watch,International Service for Human Rights, and the Women’s International League for Peace and Freedom, amongst others.

Part II considers challenges and critiques to the term ‘gender apartheid’.

Photo attribution: The photo has been used with the permission of the photographer and subject.