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

[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.]

Part I of this post discussed why the term ‘gender apartheid’.

Challenges and Critiques

Over the last two years, even as support has grown, as with all efforts, critiques and challenges to the campaign and the concept have emerged. This section considers the most often repeated issues raised by states, academics, and other experts and aims to provide context and responses.

Gender Apartheid is a New Term or Concept

Some have criticized the concept as a “relatively new expression” and attributed its popularization to international academics or organizations. As detailed above, the term dates back to the 1990s and originates from Afghan and Iranian women. For example, in her article, Professor Bennoune not only comprehensively assessed the ongoing gender apartheid in Afghanistan and the need for international recognition but also the origins of the term, including the fact that the women of Afghanistan, international scholars, and international rights groups have been calling for gender apartheid recognition since the era of Taliban rule. Dismissing the value of the concept as new undermines and devalues the leadership, agency, and voices of the women of Afghanistan over decades.

Since retaking power in 2021, the Taliban has yet again sought to entrench/ institutionalize the systematic oppression and domination of Afghan women and girls, among other marginalized groups. The recent call for recognizing its conduct as gender apartheid is therefore not a new expression; it is instead the latest of the women of Afghanistan’s calls over three decades. 

It’s More Pragmatic to Use Existing Legal Frameworks and Pathways, Including Gender Persecution

Perhaps the most common critique we hear of gender apartheid is the fact that it is not needed because the crime of gender persecution already exists and that the framework of persecution might be better suited to bring justice to the women in Afghanistan. Arguments that the existence of the crime of gender persecution obviates the need to recognize gender apartheid fail to acknowledge the distinct nature of the required intent of those maintaining a system of systematic domination and oppression of a subsection of a society. The UN Working Group on Discrimination against Women and Girls has recognized gender apartheid is “a distinct and complementary crime to gender persecution” and that “only the apartheid framework can fully capture the role of intent, ideology, and institutionalization in gender apartheid regimes, such as Afghanistan.” Similarly, Professor Bennoune has noted that “the persecution approach fails to adequately implicate the institutionalized and ideological nature of the abuses in question or reflect on the responsibilities of other international actors to respond appropriately.”

This argument also fails to recognize the complementarity between gender apartheid and gender persecution. Indeed, the crimes of apartheid and persecution already co-exist in the Rome Statute and, more broadly, in international law. The Taliban’s institutionalized regime of systematic gender-based oppression is similar to the South African apartheid regime, where racial discrimination and the doctrine of racial superiority were designed and applied to maintain the dominance of one racial group over others. The situation in South Africa propelled the codification of the crime of apartheid – a crime distinct from all other international crimes, including racial persecution. 

As demonstrated by the concurrent criminalization of apartheid and persecution on the base of race, these crimes are mutually reinforcing. Where the two crimes involve overlapping facts, they can be charged cumulatively to capture the full extent of wrongful conduct. The practice of cumulative charging is well-settled under international criminal law to ensure full culpability, even where the crimes are based on the same underlying conduct. 

Finally, we would be remiss if we didn’t note that the pushback against the concept of gender apartheid, based on the existence of other gender-based crimes, carries misogynistic undertones familiar to gender justice advocates. Long forced to retrofit gendered experiences into frameworks of international law that largely disregard gender, feminist advocates have often been told to work within existing regimes or to “not ask for too much.” Progress in the project of gender justice, such as the inclusion of various gender-based crimes beyond rape in the Rome Statute of the International Criminal Court, including gender persecution, has countered this trend. However, being constrained to the framework of Rome, which is now 25 years old and fails to reflect advancements in the understanding and jurisprudence of gender-based experiences, including the definition of gender, effectively stymies progress and limits the ambit of gender justice.

There is No Accountability Gap

Overlapping with the arguments above on the pragmatism of using existing frameworks, critics also maintain that there is no accountability gap under international criminal law for gender apartheid to address. Critics have rightly acknowledged the inadequate recognition of and accountability for gender-based crimes throughout history, rendering them the label of the “forgotten international crimes.” However, the conclusion that the gender justice accountability vacuum “is more of an issue related to implementation rather than the availability of legal provisions” misunderstands the distinct elements of gender apartheid and fails to acknowledge the totality of harms that gender apartheid codification seeks to address.

Arguments on the legal elements aside, these critiques also fail to understand the accountability gap inherently left by failing to give an appropriate name to a crime, for “one cannot prevent and punish what one does not recognize.” The recognition of gender apartheid follows in the footsteps of other efforts to surface and recognize in international law the experiences of marginalized groups, including women and girls. 

Take, for example, efforts to codify the crime of forced pregnancy in the Rome Statute following the horrors in the former Yugoslavia and Rwanda. Initially recognized as a serious violation of international human rights law and international humanitarian law, forced pregnancy was not expressly listed as a crime in the statutes of the International Criminal Tribunals for the former Yugoslavia (ICTY) or Rwanda (ICTR), limiting the ability to deliver justice and accountability for this crime. At the ICTR, even as the Akayesu case recognized that forced impregnation could, in some circumstances, amount to the crime of genocide by measures intended to prevent births within a group, the ICTR did not prosecute acts of forced pregnancy as genocide. At the ICTY, the court applied factual findings of forced impregnation and subsequent detention of women to prevent abortion to infer a policy of “ethnic cleansing,” however, acts of forced pregnancy were also not prosecuted using available crimes under the ICTY Statute. Recognizing this accountability gap, gender justice advocates successfully advocated for the explicit criminalization of forced pregnancy as a crime against humanity and a war crime in the Rome Statute. As the first international conviction for the crime in the Ongwen case recognized, the crime of forced pregnancy protects the distinct legal interest of “woman’s reproductive autonomy.” Similarly, as we outline in this piece and elsewhere, gender apartheid protects distinct legal interests that are different from those covered by other gender-based crimes.

The failure to criminalize gender apartheid perpetuates an accountability vacuum that leaves many victim-survivor groups without full remedy or reparation and the inability to hold the Taliban accountable for the totality of their crimes. The longstanding struggle to indict and successfully prosecute gendered crimes should not be used as an excuse not to proactively pursue as-yet unrecognized crimes where urgently needed, as in the present situation.

Apartheid is Only About Race 

Undoubtedly, the concept of apartheid emerged from the Southern African experiences of race-based oppression and domination, just as the idea of genocide came out of the Holocaust. Some have raised the challenge that expanding the concept of apartheid to include gender divorces the idea from the racial context of its origins and does not give due respect to the experiences of those who suffered under the regimes in Southern Africa. 

As noted anti-apartheid activist and racial justice scholar Professor Penelope Andrews has inquired, can “apartheid can be separated from its association with South Africa. Can we think of apartheid as a crime against humanity that can be removed from its racial context?” In her view, the answer, in looking at the situation in Afghanistan, is “a resounding ‘yes.’” She goes on to explain that “there is a precedent for this. The crime of genocide originated as a term to describe the crimes in Nazi-occupied Europe in the second world war. It was then applied to genocides that occurred elsewhere in the world, like Rwanda, Cambodia and Sudan. In the same way apartheid ought not to be confined to its racial origins.”

In addition, gendered experiences are not entirely divorced from the experience of apartheid, even if this is not reflected in the formal definitions of apartheid, including in the Convention on the Suppression and Punishment of the Crime of Apartheid (1973) and the Rome Statute. As recognized by the UN Centre Against Apartheid in a publication from 1978, “although apartheid is aimed primarily at race rather than sex, it does produce an especially adverse impact on non-white women in particular.” The recognition of the distinct, and in many cases, disproportionate, impact of apartheid on women, as well as how racist practices intersect with gender in profound ways, is reflected in the narratives of those who lived through apartheid, revealing how both racial and gendered forms of oppression were simultaneously experienced and endured. 

Similarly, in Palestine today, gender informs the experience of apartheid. For example, as highlighted by ICJ Judge Hillary Charlesworth in her Declaration in the ICJ Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, she highlights that “a multiple or intersectional approach sheds light on the complexity of discrimination in this case: discrimination may be experienced differently by differently situated individuals sharing a Palestinian identity.” She goes on to discuss the gendered impacts of the limits on access to water as a part of Israel’s settlement policy, as well as the residence permit system, and concludes that “These situations indicate how being both Palestinian and female in the Occupied Palestinian Territory may interact to cause serious disadvantage. As in almost all societies, Palestinian women and men have different experiences of public and private life… against this background, United Nations reports have documented the policies and practices of Israel in the Occupied Palestinian Territory, some of which are discussed in the Advisory Opinion, disproportionately affecting women and girls.”

In our direct engagement with South African activists and jurists, frustrations over the failure to address and recognize the gendered dimensions of apartheid, as well the fact that the enduring legacy and harms of apartheid fall most profoundly on Black women, have been key reasons cited for their support of the concept of gender apartheid. Today, there is growing support among South African jurists, academia, and civil society for the codification of gender apartheid as a crime. A group of prominent South African jurists, including former Constitutional Court judges Sisi Khampepe, Albie Sachs, Richard Goldstone, and Edwin Cameron, wrote to UN member states in support of codification efforts: “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. We note that international law criminalizes both racial apartheid and racial persecution. It should do the same for gender apartheid and gender persecution.”

The Way Forward

The recognition and codification of gender apartheid remain essential as the Taliban entrenches its system of institutionalized oppression of women every day. Although complementary pathways for the criminalization of gender apartheid exist, currently, a significant opportunity to criminalize the act is under the draft convention on crimes against humanity, which was recently moved to negotiations. 

Codification in the treaty is a long game and not guaranteed, even if progress has been promising. Accordingly, efforts to codify the crime should be pursued in parallel with other efforts, including efforts to criminalize gender apartheid under national jurisdictions and collaborating normative development, including through soft law approaches. Legal proceedings also offer an opportunity to both build recognition of the crime as well as deliver justice for gender-based violations and crimes, including at the ICC and ICJ. The International Criminal Court’s (‘ICC’) announcement on the application for arrest warrants for senior members of the Taliban for gender-based persecution and any subsequent proceedings could help to draw significant attention to the ongoing institutionalized system of gender apartheid under the Taliban-controlled Afghanistan, reinforcing the need for accountability and criminalization of gender apartheid. Similarly, the effort to hold the Taliban accountable for violations of  CEDAW, which could lead to a case before the International Court of Justice (‘ICJ’), is an opportunity to pursue the full panoply of women’s rights that are violated under CEDAW. We hope that the States involved move forward promptly and ensure that the processes are transparent and that a potential case at the ICJ upholds the full range of rights protected under CEDAW.

Working complementary to each other, these international efforts to hold the Taliban accountable could generate greater international recognition and precedent for gender apartheid.

In conclusion, the criminalization of gender apartheid will fill the current accountability vacuum under international law that leaves many victim-survivors without any remedy or reparation for the totality of harms committed against them. It will ensure a gender-inclusive approach that better reflects the realities in contexts such as the Taliban-controlled Afghanistan. In addition to strengthening the normative framework of international law, recognition of the crime against humanity of gender apartheid would also more profoundly underscore the obligation of States to take effective action to prevent and punish gender apartheid.

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