Taking Stock of the Proposal to Codify Gender Apartheid in the Crimes against Humanity Convention

[Metra Mehran, is an activist from Afghanistan, member of the End Gender Apartheid Campaign and Afghanistan Advocacy Specialist at Amnesty International. 

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.

Alyssa Yamamoto is the Senior Legal & Policy Advisor at the Atlantic Council Strategic Litigation Project, a Legal Advisor with the End Gender Apartheid Campaign, and a Visiting Fellow with the University of Minnesota Law School’s Human Rights Center.]

Sunday marked the 115th anniversary of International Women’s Day, and today kicks off the annual forum for the Commission on the Status of Women, with the priority theme of strengthening access to justice for all women and girls. Despite the remarkable progress that has been made in women’s rights since the establishment of International Women’s Day, it is hard to be in a celebratory mood. Recent years have witnessed an unprecedented backlash against gender equality and gender justice across the globe, with one in four countries reporting a rollback in women’s rights in 2024. Nowhere has such backlash been as extreme and entrenched as Afghanistan, where the Taliban has institutionalized an ideological form of governance designed to systematically oppress and dominate women, girls, and LGBTQI+ individuals: what survivors and increasingly, the international community have recognized as “gender apartheid.” 

The Deteriorating Situation in Afghanistan 

Since their takeover in August 2021, the Taliban have issued over 200 laws, policies, and regulations targeting women, girls, and LGBTQI+ individuals. Together, these form a legally mandated and enforced system that erases them from public life and society, and deprives them of their fundamental rights, including to education, employment, healthcare, religion, and free movement and expression. Women are prohibited by law from speaking or showing their faces outside their homes–and must not even be visible through windows in their homes. Despite widespread condemnation, the Taliban continue to deepen and formalize their discriminatory system–without accountability. 

Most recently, in January 2026, the Taliban promulgated the Criminal Procedure Code for Courts, which entrenches gender-based discrimination, sanctions domestic violence, and further forces men into their enforcement system. The law permits “tazir punishment” by the “husband” and/or “master”; only criminalizes violence against women resulting in severe injury, such as “a wound or bodily bruising”; and prohibits women–and their male relatives–from going to a relative’s home without her husband’s permission. As the Afghanistan Analysts Network explains, “[t]hroughout the Code, it addresses men. Women are almost invisible unless the regulation concerns what is done to them. In that case, they might be looked at, asked after, beaten, cursed, be the object of a man’s illicit affairs, or the mother of a child.” 

At the same time that the Taliban promulgated the new penal code in January 2026, the first preparatory committee session (Prep Comm) for the United Nations Diplomatic Conference of Plenipotentiaries on Prevention and Punishment of Crimes against Humanity was held in New York. Over the two-week Prep Comm, where delegates were able to comment on the scope of the Draft Articles on Prevention and Punishment of Crimes against Humanity (Draft Articles)–the baseline for the upcoming negotiations of the crimes against humanity convention (CAHC)–many Afghan survivors and communities awaited any news of reference to the proposal to enumerate a crime against humanity of “gender apartheid.” As previously discussed on Opinio Juris, Afghan women human rights defenders (WHRDs) and jurists, in partnership with international allies, have long recognized the dystopian, gender-based rule of the Taliban in Afghanistan as “gender apartheid” (including with respect to the first Taliban takeover) and called for its legal recognition. They assert that, had gender apartheid been codified as an international crime previously, Afghan women would not be facing the same atrocities today.

The Opportunity Presented by the Crimes Against Humanity Convention

The End Gender Apartheid Campaign, which seeks to prevent, punish, and dismantle gender apartheid regimes through the codification of a crime against humanity of gender apartheid, has been driven by a coalition of Afghan WHRDs, in consultation with affected communities living inside Afghanistan and in exile. The movement has largely focused on the opportunity to codify the crime of gender apartheid in the CAHC, in an effort to bring their lived experiences to the fore and fill the existing impunity gap left by the omission of a crime that encapsulates the animating context (an institutionalized regime of systematic gender-based oppression and domination) and intent (to maintain such a regime) of gender apartheid. 

While treaty negotiations are only slated to begin in 2028, the UN General Assembly is currently engaged in the important process of laying the groundwork for negotiations–both procedurally and substantively. The January 2026 Prep Comm meeting had a similarly mixed mandate: to make procedural decisions on the leadership and procedures of the Prep Comm, as well as to the future participation of non-ECOSOC accredited NGOs, and substantively, to “facilitate consultations on the draft articles, and to enable Governments to prepare formal proposals for amendments to the draft articles.” Such proposals will be due in the first instance by April 30, 2026. 

During the opening plenary, states largely supported the need for the CAHC and emphasized issues important to them–a reminder that the treaty must be a meaningful tool for a broad and diverse group of stakeholders. For example, the African Group emphasized the slave trade, colonialism, apartheid, and the exploitation of resources. Palestine  highlighted the importance of this process, delivering justice for all those who suffer crimes against humanity, dedicating a minute to victims “of today and of yesterday.” Afghanistan (representing the recognized government, not the Taliban) noted that the treaty is not merely theoretical, and that crimes against humanity, including gender apartheid, are ongoing realities. This discussion wasn’t just limited to states. One of us (Metra) reflected during the Prep Comm here in Opinio Juris that the process must be inclusive of affected communities, victims, and survivors with firsthand experience of crimes against humanity, and that the failure to do so “risks producing a paper that looks powerful on paper but fails when it matters most.”

On gender, multiple Member States, including Colombia, the Philippines, the Nordic states, Australia, and Spain, demonstrated openness throughout the Prep Comm to the inclusion of new gender-based crimes to better reflect recent developments in international law and the totality of harms and conduct committed against women, girls, LGBTQI+ individuals, and others. A similar constellation of States also supported the International Law Commission’s (ILC) decision to omit a definition of gender in the Draft Articles. Arguments for omitting a definition were varied, with some focused on the need to ensure an inclusive definition; others on the fact that defining gender was an outlier, as none of the other bases for persecution were defined in either the Rome Statute or the Draft Articles; and others still on the fact that as a treaty of domestic implementation, the omission would allow states to use definitions appropriate to their national contexts. On the flip side, some states raised concerns over the lack of a definition of gender. Some, such as Namibia, called for the reinstatement of the Rome Statute definition (“the two sexes, male and female, within the context of society”), and others, such as Burundi, Russia, and a number of Arab Group States, called for the inclusion of a binary definition and/or for gender to be replaced with “sex.”

Stock-Taking of the Gender Apartheid Proposal 

Among the references to gender during the Prep Comm were multiple calls to enumerate the crime of gender apartheid. Seven countries (Afghanistan, Australia, Austria, Mexico, the Philippines, Portugal, and Spain) expressed openness to the inclusion of gender apartheid–or at least the proposed elements of the crime–which now makes 12 countries formally on the record as expressing openness to the codification of gender apartheid in the CAHC–not to mention the many more countries that have politically used the term to describe the ongoing deteriorating situation in Afghanistan. 

The Prep Comm interventions included the Philippines, who underscored how, “on the definition of crimes against humanity, efforts must be made to future-proof the treaty, and take into account the evolving nature of harms” and “expressed openness to proposals, including for the addition of gender apartheid”; and Spain, who did not use the term “gender apartheid” but expressed support for enumerating “inhuman acts committed in an institutionalized and systematic manner against an entire social group on the basis of gender, with the essential aim of depriving them of their most fundamental rights” and specifically recognized that “[t]his crime is currently being committed against women and girls in Afghanistan and requires our attention and specific classification that reflects the complexity and seriousness of the situation.”

In addition to state interventions, nearly half of the NGOs that delivered statements (Global Justice Center, Human Rights Watch, International Alliance of Women, International Commission of Jurists, International Federation for Human Rights (FIDH) (also on behalf of REDRESS and the Global Initiative Against Impunity), and Women’s Initiatives for Gender Justice) expressed support for the inclusion of gender apartheid. They join a growing coalition of Afghan and international NGOs calling for gender apartheid codification in the CAHC, and are part of a broader movement calling for a gender competent, inclusive, intersectional, and victim and survivor-centric approach to the treaty.

UN leaders have also joined the chorus in support of including a crime of gender apartheid in the CAHC, with the UN High Commissioner for Human Rights, as well as the UN Special Rapporteur on the situation of human rights in Afghanistan and Working Group on discrimination against women and girls issuing press statements on the margins of the Prep Comm, reiterating their support for gender apartheid codification. Since the Prep Comm,  the UN Secretary-General recognized in his report in advance of CSW 70 that the CAHC is an opportunity to “close legal gaps in the architecture of atrocity prevention and punishment by codifying and enumerating crimes that disproportionately affect women and girls…[including] institutionalized regimes of systematic oppression amounting to gender apartheid.” At the ongoing Human Rights Council, the High Commissioner for Human Rights reiterated his support for codification in the CAHC,  noting how “defining gender apartheid is essential to ending it.”

The only opposition raised during the PrepComm was by Burundi and Cameroon, who were more concerned about the “controversial” nature of the term “gender apartheid” due to the lack of an agreed definition, namely because gender is undefined, as discussed above (apartheid has a clear definition under international law and in the Draft Articles). Iran also expressed opposition, no doubt due to concerns about their own potential responsibility. While these concerns must be taken seriously, they must also not distract from a principled, forward-looking push for the gender apartheid proposal–especially at this early stage, where the CAHC is not even in formal negotiations yet. Indeed, most substantive issues were subject to both progressive and regressive interventions during the Prep Comm. 

An elephant in the room in this discussion is the position of the South African government, who have yet to take a position on the potential inclusion of gender apartheid vis-a-vis the CAHC. Among civil society, there has been vocal support for gender apartheid from many prominent South African and anti-apartheid experts, activists, and jurists, including former Constitutional Court Judges, as well as other prominent anti-apartheid feminists and jurists, including the former First Lady of South Africa, Graça Machel, and  Judge Navi Pillay. As Judge Pillay, a former judge of the High Court of South Africa, International Criminal Tribunal for Rwanda, and International Criminal Court, former Chair of the Commission of Inquiry on the Occupied Palestinian Territory, and former High Commissioner for Human Rights, aptly noted on the importance of South Africa’s role: “We gave the world apartheid. We must now call it out wherever it occurs.”

Looking Forward: The April 30th Deadline for CAHC Textual Proposals 

In advance of the April 30th deadline for proposals for textual amendments to the Draft Articles–the first but not last opportunity for states to submit drafting proposals, which will then be compiled by the Secretariat–many states are starting to consider what the definitional elements of gender apartheid might entail. To date, the only state before the Sixth Committee that has enumerated a specific definition for a crime against humanity of gender apartheid is the Government of Malta, whose December 2023 written comments on the treaty suggest a narrow amendment of the existing crime of apartheid to encompass gender as follows (bolded language): 

‘the crime of apartheid’ means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups, or by one gender group over another gender group or groups, and committed with the intention of maintaining that regime. 

This definition aligns with the definitions proposed by the UN Special Rapporteur on the situation of human rights in Afghanistan, the End Gender Apartheid Campaign, Human Rights Watch, and others. Others have proposed alternative formulations that have yet to see state support. Regardless of how the term is defined, there is no question that the momentum continues to grow to recognize and codify gender apartheid–for women, girls, and LGBTQI+ individuals in Afghanistan, and to ensure that such regimes are deterred in the future, wherever they occur.

Later this month, March 23rd will mark Nowruz, or the Persian New Year–the start of the school year in Afghanistan. For the 5^th year in a row, girls in grades 6 and above will not be able to attend school. Erased from society, with no hope for the future, these girls epitomize the intergenerational harms of gender apartheid, and the urgent need to act to ensure that this system is brought to an end. There is a long tradition of the experiences of atrocities–for example, the Holocaust and genocide, and apartheid and South Africa–informing the development of international law and the recognition of new harms. Today, states have the opportunity to give the sui generis harms in Afghanistan a name and ensure that they do not happen again. In a world of consistent regression on gender, the international community cannot afford to greenlight the Taliban’s gender apartheid and similar atrocities not yet in existence.