Race, Gender and Apartheid in the Draft CAH Treaty: South Africa’s Role

[Lisa Davis is the senior associate dean of Clinical Programs & professor of law at CUNY Law School, and the ICC special adviser on Gender and Other Discriminatory Crimes.

Kirby Anwar is a senior legal fellow at Human Rights and Gender Justice Clinic, CUNY School of Law, senior legal advisor at MADRE and member of the Gender Persecution in Afghanistan Accountability Working Group.]

At the Hector Pieterson Museum in Soweto, South Africa, visitors move through galleries filled with photographs and testimonies from the 1976 protests, where students—many of them children—marched peacefully against the apartheid regime’s denial of their right to adequate education. Their resistance is powerfully juxtaposed with images of the state’s militarized response: armed police firing on schoolchildren, eyewitness accounts of chaos and bloodshed, and the haunting image of 12-year-old Hector Pieterson, whose death became a global symbol of state brutality.

For many visitors, the museum is more than a memorial—it draws parallels to the present. Echoes of apartheid South Africa can be seen in the treatment of Palestinians. These parallels are grounded in shared structural characteristics: institutionalized discrimination, domination enforced through violence, and persistent impunity on the world stage. This continuity raises a central question: Why has the international legal system failed to hold perpetrators accountable for the crime against humanity of apartheid, past or present? 

That question anchored a workshop in Johannesburg, South Africa in June 2025, attended by advocates; scholars; Afghan, Palestinian, women’s and LGBTQI+ rights activists; South African lawyers for apartheid victims; and government officials. Co-hosted by MADRE and the Nelson Mandela Foundation, the convening explored how the crime of apartheid is codified in international law, where it falls short, and how it must evolve to reflect victims’ experiences—including gender-based and intersectional oppression. Participants also discussed how the draft crimes against humanity (CAH) treaty under negotiation at the United Nations offers a key opportunity to codify an updated, comprehensive definition of apartheid.

Dr. Naledi Pandor, South Africa’s former Minister of International Relations and Cooperation, opened the gathering with a call to moral clarity. Noting longstanding impunity and lack of reparations for crimes against humanity like apartheid and slavery, she asked, “How do we shape the [CAH] convention in way that guarantees action for those who require its protection?” When speaking on the Palestinian people’s struggle, she added, “If we are to be guided by the people of Palestine, we must support the choice that they make…. We must be led by the oppressed.” 

For Palestinian organizations like BADIL, formal recognition of apartheid is not merely symbolic—it would fulfil a demand for justice long denied. Last year, the highly anticipated advisory opinion of the International Court of Justice (ICJ) acknowledged that Israel’s abuses against Palestinians violate international law, including human rights protections against apartheid. Yet, despite calls from multiple states and compelling legal arguments, the court stopped short of naming the crime of apartheid. Though some ICJ judges noted parallels to South Africa’s apartheid, the decision’s omission reflects a failure of international criminal law to fully address institutionalized oppression. 

Also centered at the workshop was the call by Afghan feminists to recognize the Taliban’s regime as a form of “gender apartheid.” Since returning to power in 2021, the Taliban have systematically deprived women and girls of education, employment, public life and basic autonomy, and have criminalized LGBTQI+ people’s existence. These deprivations, enforced through arbitrary imprisonment and violence, form a coherent system of institutionalized gender oppression. Under current legal definitions, this systematic exclusion does not qualify as apartheid, which is why many have called for expanding the definition to include gender-based oppression.

South Africa’s Role in Addressing Impunity 

South Africa’s history of struggle against apartheid holds deep symbolic and political significance. The workshop outcomes made clear that the central issue is no longer whether the definition of apartheid should evolve, but rather the extent evolution is possible and what historical underpinnings will drive it. In this context, South Africa’s moral authority and experience could prove decisive in shaping the trajectory of international justice.

South Africa has taken bold steps to hold perpetrators of discriminatory crimes accountable. In May 2024, it formally acceded to the Apartheid Convention as part of a commitment to leading global efforts against contemporary apartheid. Under Dr. Pandor’s direction, the country in 2023 brought a case before the ICJ regarding acts of genocide committed in Gaza. It also made a submission for the ICJ’s 2024 advisory opinion on the legality of Israel’s occupation. These efforts, and the ICJ’s provisional rulings ordering Israel to prevent genocide and allow humanitarian access, reaffirm South Africa’s role as a global moral force against systemic discrimination.

South Africa is therefore uniquely positioned to lead the call for a modern, inclusive definition of the crime of apartheid under international law. Existing legal frameworks are still rooted in outdated, biological notions of race and fail to fully capture how apartheid operates. The draft CAH treaty presents a critical opportunity to rectify that. Through its leadership, South Africa can ensure that any change is grounded in respect for its own legacy. 

Race, Outdated Definitions, and the Problem of “Groups”

In addition to deficits in political will, a primary barrier to apartheid accountability lies in how “racial groups” are defined under the treaties that prohibit genocide and apartheid, namely the Genocide Convention, the Apartheid Convention and the Rome Statute of the International Criminal Court (ICC). There is no international jurisprudence for apartheid crimes. To interpret “racial groups,” courts are likely to draw on the Apartheid Convention’s travaux prépatoires, as well as case law regarding genocide, which shares similar legal language and frameworks with apartheid. 

The problem is that the 1948 Genocide and 1974 Apartheid Conventions were grounded in the assumption that “race” is immutable and biologically determined. The Genocide Convention drafters’ emphasis on the “permanence” and “stability” of victims’ groups—concepts rooted in the belief that certain identities are inherently unchangeable—also shaped which groups were included or excluded from protection. This view has led international tribunals to frequently require “biological” or hereditary evidence (such as physical characteristics or lineage records) to prove membership in a racial group.

Scientifically discredited, this evidentiary method reflects the same logic used by perpetrators of racial violence—such as the Nazis and apartheid architects in South Africa—to classify and dehumanize individuals. By adopting this approach, courts undermine human rights principles that establish race as a social construct. In doing so, they deny victims the recognition and justice they deserve.

By contrast, persecution—also a crime against humanity—allows for a more flexible understanding of “racial groups.” The perpetrator’s intent to discriminate is sufficient, and no “biological” proof of the victims’ group is required. For genocide, however, while intent can serve as evidence, prosecutors must still provide some amount of biological or hereditary evidence of a victim’s race. Without clarification by CAH treaty drafters, the same limited understanding of “racial groups” used in genocide cases, is likely to be applied to apartheid. (For more details on this, see our law review article).  

Over the years, there has been a jurisprudential shift away from biological criteria toward greater use of subjective elements (such as the perpetrator’s perception). Still, most genocide courts have adopted a mixed approach, requiring both subjective and biological/ hereditary (purported “objective”) indicators. This method is now the dominant framework in international jurisprudence, as affirmed by an appeals court of the International Criminal Tribunal for the former Yugoslavia in its 2006 Stakić decision and by the ICJ in its 2007 Bosnia decision. 

In 2021, the problem resurfaced in the ICJ’s Qatar v. United Arab Emirates decision, which treated the terms “national origin” and “race, colour and descent” under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) as attributes fixed at birth. This contradicted the flexible, subjective interpretation ICERD’s own monitoring body uses—one that recognizes race as socially constructed. 

The ICJ’s interpretation risks excluding victims of racial discrimination from recognition. It also illustrates the potential for courts to override human rights treaty monitoring bodies’ interpretations, further complicating efforts to ensure that international legal standards evolve in line with contemporary understandings of race and discrimination. This makes it all the more important to ensure inclusive and modern definitions of crimes like apartheid under the draft CAH treaty. 

Participants at the Johannesburg workshops agreed that borrowing the words “on the grounds of” or simply put, “based on” from persecution for apartheid’s definition could help ensure that inclusivity. 

Gender Apartheid and Intersectionality

Current legal definitions of apartheid also fail to account for gender-based or intersectional regimes of oppression, such as those imposed by the Taliban in Afghanistan or the racist and patriarchal oppression endured by Black South African and Namibian women. 

Afghan women’s rights activists, international advocates, and UN experts increasingly argue that the Taliban’s rule constitutes a regime of gender apartheid. Since the Taliban’s return to power in 2021, women and girls have been systematically erased from public life, banned from attending secondary schools and universities, barred from most forms of employment, and prohibited from traveling without a male guardian. Public spaces such as parks, gyms, and even beauty salons have been closed to them, while dress codes are strictly enforced under threat of violent punishment. LGBTQI+ Afghans, entirely unprotected by law, face brutal torture, including sexual violence. The Taliban’s stated policy is to flog, stone, or kill those perceived as “homosexual.”

In both apartheid-era South Africa and Taliban-ruled Afghanistan, education has been used as a tool of systemic oppression. South Africa’s Bantu Education Act denied Black children access to quality schooling to reinforce racial hierarchies. Less has been discussed about the regime of multifaceted discrimination that Black women and girls faced. Apartheid institutionalized white supremacy and patriarchal norms that confined Black women to domestic and subordinate roles, further limiting their educational and work opportunities, social mobility, economic independence, and political agency. Similarly, today’s bans on education, freedom of movement, and public participation constitute a deliberate effort to suppress and control Afghan women and girls. These fundamental rights deprivations are core features of regimes of domination—whether rooted in racism, patriarchy or both—designed to erase the autonomy and agency of entire groups.

At the June 2025 workshop in Johannesburg, South African activists—especially Black feminist scholars and former anti-apartheid organizers—voiced strong solidarity with Afghan women resisting Taliban oppression. Many emphasized their deep concern over the erasure of women’s rights and affirmed the need for accountability. At the same time, participants voiced concern with how the label “gender apartheid” will be understood.

For many South Africans, apartheid is more than a legal term—it is a lived experience of systemic oppression, enforced through state violence, land dispossession, citizenship denial, and the subjugation of Black identity.

Importantly, as participants noted, apartheid was also deeply gendered. Black women lived under intersecting regimes of racial and patriarchal control, facing economic exclusion, forced removals, and state-sanctioned sexual violence. Despite this, post-apartheid transitional justice efforts—most notably the Truth and Reconciliation Commission (TRC)—largely overlooked the specific harms Black women endured. Although the TRC included a brief chapter on gender, written after sustained advocacy by South African feminists, its mandate failed to confront apartheid’s legal structure, including its gendered aspects. The report acknowledges that “women were subject to more restrictions and suffered more in economic terms” and that “Black women, in particular, are disadvantaged,” especially those in former homelands. Yet Black women’s experiences remain under-recognized and without reparation.

Workshop participants expressed concern that introducing “gender apartheid” as a new and separate concept—without fully acknowledging the gendered dimensions of apartheid in South Africa—risks sidelining this unresolved legacy of gender-based injustice. They encouraged a full reckoning with the gendered nature of apartheid to avoid inadvertently erasing or appropriating South Africa’s legacy. To ensure that legal and advocacy efforts do not replicate patterns of exclusion and essentialism, participants called for deeper international engagement with the research, histories and activism of Black feminists in South Africa and Namibia. 

LGBTQI+ rights advocates also raised concerns about the potential exclusion of apartheid victims who experience intersecting forms of gender-based oppression. If “gender groups” is added to the draft CAH treaty’s apartheid provision and defined using the same biologically-based criteria as in genocide law, the definition could be restricted to just two categories—“male” and “female,” or “men” and “women.” Such a narrow framing risks excluding or misclassifying trans people and obscuring the specific forms of violence experienced by, for example, lesbians and trans individuals, who often face multiple, overlapping forms of discrimination.

The risk of exclusion is not merely theoretical. The Rome Statute’s inclusion of “gender persecution” was highly contested in the 1990s, with some states pushing for a definition that would ostensibly exclude LGBTQI+ persons. The compromise that emerged—an opaque definition—contributed to decades of zero accountability. This accountability continued despite the fact that “race” and “gender” were long recognized as social constructs under international human rights law. Fortunately, the outdated definition of “gender” was removed from the CAH treaty draft for this reason. 

In 2022, the ICC adopted a policy on gender persecution that embraces a contemporary, inclusive definition of gender. This approach was put into practice in 2024, when the ICC Prosecutor sought arrest warrants for Taliban leaders accused of gender persecution targeting women, girls, and—for the first time—LGBTQI+ persons. In a landmark ruling, the court issued the warrants, underscoring how legal clarity can play a crucial role in breaking the cycle of impunity.

Toward a Modern Definition of Apartheid

The definition of apartheid has evolved before and can evolve again. Initially codified in the 1974 Apartheid Convention, it faced resistance when proposed as a crime against humanity in the Rome Statute, with some states arguing its relevance was confined to South Africa. Due in large part to South Africa’s advocacy, it was ultimately included in the Rome Statute, with the final text broadening apartheid’s scope to include any “inhumane act” but narrowing it through the requirement of an “institutionalized regime.”

As the international community revisits the legal definition of apartheid under the proposed CAH treaty, a crucial opportunity has emerged to ensure its broad range of victims are finally recognized as such. The issue is not the meanings of “race” or “gender”, but how international criminal law defines protected “groups.” That definition determines who is recognized as a victim of apartheid. To ensure inclusivity and consistency with human rights law, the treaty must clarify that both “racial groups” and—if added—“gender groups” are to be understood based on the perpetrator’s perception, rather than fixed or biological traits.

Recent developments at the United Nations reflect growing momentum for such reform. In 2023, a proposal was introduced to expand the definition of apartheid to include gender-based oppression. Building on this, in 2024 the UN Working Group on Discrimination Against Women and Girls proposed updated language for the CAH treaty, offering a definition that directly confronts the limitations of the current framework. If applied to the treaty, their recommended wording could define apartheid as:

Inhumane acts … committed in the context of an institutionalized regime of systematic discrimination, oppression and domination by one group over another, based on [race or] gender and committed with the intention of maintaining that regime.

By adding the words “based on”, the definition adopts a perpetrator-based view of group identity, aligning with how persecution crimes are interpreted by the ICC and within international human rights law. It recognizes that both “racial” and “gender” groups are socially constructed categories instead of rooted in fixed or biological criteria. Like persecution, this formulation also captures intersectional discrimination. The Working Group’s proposal thus offers treaty drafters a path toward an inclusive and contemporary understanding of apartheid that better reflects lived realities.

Recognizing a broader range of victims of the crime of apartheid also carries profound legal and political implications, including in the application of reparations. Reparations are formal efforts to redress grave injustices—such as slavery, genocide, apartheid, colonialism, or persecution—through material and symbolic means. Over time, the understanding of who qualifies as a legitimate victim often evolves as awareness is expanded through social movements’ political advocacy on behalf of those most affected.

While genocide accountability for Palestinians may be temporally limited to recent acts, such as those committed since October 2023, apartheid accountability would acknowledge a longstanding, systemic injustice—opening pathways for reparative justice that affects tens of thousands more victims. It would also inform legal strategies for future prosecutions under the Rome Statute. Article 21 permits the ICC to interpret the law in light of evolving legal norms. Thus, modernizing the definition of apartheid under a new treaty could strengthen future ICC apartheid prosecutions.

Germany’s longstanding reparations program demonstrates the importance of confronting discrimination, acknowledging historical injustices, and recognizing a wide range of victim groups. Beginning in the 1950s with the Federal Compensation Law, reparations were initially extended to Jewish Holocaust survivors and others persecuted on racial, religious, or political grounds. However, for years the system left out thousands who had suffered under the Nazi regime—including LGBTQI+ individuals, Roma and Sinti, persons with disabilities, and others—from receiving reparation measures.

For example, Paragraph 175 of the German Criminal Code, which criminalized sexual relations between men, remained in force long after the war and was not fully repealed until 1994. It was only in 2017 that Germany formally pardoned men convicted under Paragraph 175 after WWII and offered symbolic reparations to surviving victims. Only through decades of sustained advocacy, legal reform, and evolving societal values did this recognition and inclusion occur. 

A similar expansion is needed in South Africa’s post-apartheid reparations process, which has left many victims struggling for justice to this day. The TRC’s mandate prioritized victims of political violence and direct state action, largely neglecting the systemic day to day oppression, including racist and patriarchal oppression experienced by Black women and LGBTQI+ persons. Scholars, activists, and civil society actors have continuously called for a more inclusive understanding of apartheid’s harm—one that recognizes the significance of gender violence, forced labor, reproductive control, and exclusion from education, employment, and healthcare.

These advocates are pushing the reparations discourse toward intersectionality, acknowledging that the violence of South Africa’s apartheid was not only political but also deeply racialized, gendered, and economic. A progressive, intersectional understanding of apartheid could bolster efforts toward inclusive justice, while a regressive or narrow interpretation may risk reinscribing past exclusions.

With the CAH treaty on the horizon, the world has a renewed opportunity—and responsibility—to update the legal framework once again. A narrow definition risks reinforcing exclusions and failing victims. A forward-looking, inclusive definition would represent a major legal and moral advance. If South Africa leads this process, it would both honor its own liberation legacy and help shape international law to better confront systems of structural oppression. The critical question now is not whether the definition of the crime of apartheid should evolve—but how much, and South Africa’s leadership may well determine the answer. 

Photo attribution: “The entrance to the Apartheid Museum in Johannesburg” by JukoFF is licensed under CC BY-SA 4.0