International Law and Feasibility of Recognizing Gender Apartheid

[Meena Sadr is an incoming PhD student in the Global Studies program at the University of California, Irvine, and an LLM graduate from the University of Pittsburgh School of Law]

What is Gender Apartheid? 

Lawyers, human rights advocates, and academics defined gender apartheid as “… inhumane acts of …, 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 to maintaining that regime.” Practitioners and academics believe that the International Human Rights treaties are not capable of addressing the severity of the institutional subjugation of women in Afghanistan. Accordingly, drafting a similar article to the above definition provides a platform for victims and the international community to hold the perpetrators or any country in support of perpetrators of gender apartheid accountable.  

For the first time, the term Gender apartheid was used in the State of the World’s Children Report by the United Nations International Children’s Emergency Fund (UNICEF) in 1992. The report proposed that “The world New Order must oppose the apartheid of gender as vigorously as the apartheid of race.” The report underscored that being female had an excessive determinantal impact on accessing social, political, and economic opportunities due to biased practices.

Later, several academics and practitioners in the field of International Human Rights Law (IHRL) used the term gender apartheid to unpack the suffering of women in Middle Eastern countries, particularly in the context of Afghanistan. For instance, in 1999, Abdelfattah Amor UN Special Rapporteur on the Elimination of Intolerance and All Forms of Discrimination Based on Religion or Belief, recognized that Afghanistan women are subject to form of apartheid. Ann Elizabeth Mayer unpacks that the rise of the cultural relativistic justifications and promotion of cultural nationalism led to treating gender apartheid as a benign apartheid. Unlike racial apartheid which is considered a product of colonialism and the subject of debate to the public international law, the issue of gender discrimination is always minimized to the internal affairs of states by political nationalist groups. Accordingly, post-colonial IHRL has refused to acknowledge that women “remained systematically subjugated in a quasi-colonial fashion.” Meaning, that the oppression of gender resembles the same colonial oppression, but it occurs within a domestic system of governance, rather than being imposed by a foreign colonizer. This system of governance uses gender oppression to define national identity against foreign values. 

During the first rule of the Taliban, for the first time, the Feminist Majority Foundation (FMF) started the campaign against gender apartheid in the United States. The campaign using the strategy of consumer activism could prevent the Union Oil Company of California (UNOCAL) in the US from investing in Afghanistan by forcing the state of California to revoke the company’s license. By 2000, FMF could achieve tangible outcomes in their advocacy that led to the mobilization of the US constituency on this foreign policy more than any other foreign policy issue. However, the FMF strategy shift from diplomacy and economy to 9/11’s military intervention has raised numerous criticisms toward “American women’s activism, global feminism, and US foreign policy.” The establishment of the Islamic Republic of Afghanistan marked an end to the gender apartheid and a new start for Afghanistan women. 

With the return of the Taliban to power in mid-2021, the Taliban harshly imposed draconian gender apartheid policies and deprived women of basic rights. In 2022, Karima Bannoune conceptualized the term gender apartheid as the legal cure for global accountability of a transnationally created disaster in Afghanistan to address gender apartheid robustly.  Many human rights advocates and practitioners utilized the framework for advocating the codification of gender apartheid as crimes against humanity. 

Why Should the International Community Recognize Gender Apartheid? 

The international law is facing a dearth of norms to hold perpetrators of gender apartheid accountable. Sources of International Human Rights Law such as norms and treaties fail to criminalize the institutionalized forms of gender apartheid.

Recognition of gender apartheid is a step forward to filling the gap in international law (IL) and IHRL. One of the criticisms of The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has been the lack of strong language for holding perpetrators of gender discrimination accountable. CEDAW is toothless compared to the racial apartheid convention. For example, the CEDAW fails to criminalize the gendered discriminatory policies even when women face chronic egregious discrimination.  The dual treatment of race and gender in terms of recognition of gender apartheid is intelligible when the preamble and articles of the United Nations Charter and the Universal Declaration of Human Rights (UDHR) prohibit gender and racial discrimination equally. 

Furthermore, it is not only IHRL conventions that fail to address gender discrimination on an equal footing with racial discrimination but also the broader norms of international law. The non-derogatory norms of international law known as the preemptory norms include the prohibition of racial discrimination but not gender discrimination. The International Law Commission (ILC), a commission mandated by the General Assembly to “encourage the progressive development of international law and its codification”, assessed a non-exhaustive list of the peremptory norms in 2015. ILC’s final report excluded the “freedom from gender discrimination” because of the fifty-five reservations mainly imposed by Islamic countries to CEDAW. Supposedly, the reservations have created a dearth of the state’s belief (Opinio Juris) that blocks freedom from gender discrimination from amounting to preemptory norms. The adopted report by ILC member states in 2022 disregarded the freedom of gender discrimination as a preemptory norm.  However, as Mary H. Hansel argues the fifty-five reservations date was based on the United Nations’ 2006 document which did not constitute more than one-third of the state parties to the convention. Since then, states that ratified the treaty without reservations have objected to the reservations made by other states. Additionally, many of these reservations have been withdrawn or modified by the states that initially made them. Similarly, the number of reservations for the Convention against Torture, Cruel, Inhumane, or Degrading Treatment (CAT) was not considered in deciding the inclusion of the prohibition of torture as the preemptory norm.  All these events in international law call for the redux of peremptory norms.  

Hilary Charlesworth and Christine Chinkin, scholars of IL, questioned the universality of the preemptory norm because they are gendered. They argue, “the violations that women do most need guarantees against do not receive this same protection or symbolic labeling.” Meanwhile, both scholars elaborate that the third-world countries’ critique of international law often emphasizes the economic disparities and overlooks the exclusion of women in the creation of international law. For the past few years, the people of developing countries have strongly pushed for the inclusion of women’s narratives in the codification of international law. An embodiment of this matter is the ongoing campaign for recognition of gender apartheid, advocated by the women under the oppressive regimes of Afghanistan and Iran. The recognition of gender apartheid as a crime against humanity not only provides a legal platform for the victims of gender apartheid to claim their rights but also an opportunity for the state at the international level to minimize the gendered deficiencies of international law. 

Thus, the outcome of the codification of gender apartheid as a crime against humanity is two-fold: it elevates the prohibition of gender discrimination status to be listed as a preemptory norm and it upholds the perpetrators and supporters of gender apartheid regimes accountable as a response to the voices of people from developing countries. The exclusion of freedom from gender discrimination from preemptory norms by ILC has sidelined the situation of Afghanistan where a gender apartheid regime has been established since the return of the Taliban to power in mid-2021. 

Campaign for Recognizing Gender Apartheid in Afghanistan. 

On March 8, 2023, the campaign for gender apartheid was started by international women’s rights defenders, jurists, and experts from Afghanistan and Iran. The main demand was the recognition and codification of the crime of gender apartheid under international.  In the context of Afghanistan, the campaign was launched due to the systematic subjugation of women and girls by the Taliban. Taliban has passed more than 100 directives depriving women of their basic rights to name a few, prohibition from the right to get educated, right to work, right to movement, freedom of association, and speech. The institutionalization of gender discrimination is one of the reasons for the Taliban’s non-recognition by the international community. 

Women resisted these draconian policies and have been at the forefront of claiming their rights by non-violent means. The grassroots movement started without any extrinsic assistance with the slogan of “work, bread, freedom”. However, the Taliban have brutally cracked down on the protests and have threatened, harassed, arrested, tortured, beaten, extrajudicially imprisoned, and/or extrajudicially killed the women.

Experts from the United Nations and international human rights organizations have reached to conclusion that segregation and oppression of women in Afghanistan amounts to gender apartheid. For example, In May 2024, the UN Women in Afghanistan called for recognition of gender apartheid. On June 17, 2024, Amnesty International Joined the campaign by stating codification of the crime of gender apartheid. The United Nations (UN) Special Rapporteur on the situation of human rights in Afghanistan, Richard Bennett, in several reports claimed that the ferocity of institutionalized, systematic, and widespread nature discriminatory attacks on women justifies the policies being framed as “gender apartheid”.

Many Islamic institutions like Al Azhar and the Organization of Islamic Conference (OIC) and countries also declared the Taliban policies toward women as un-Islamic. For example, the Permanent Representative of the United Arab Emirates has referred to Taliban policies as an exploitation of religion and culture as an excuse to deprive women of their basic rights. 

The codification of gender apartheid is essential more than ever for Afghanistan women because of both the current regime of gender apartheid established by the Taliban and also the culture of impunity over the past 30 years for the warlords. Women have been subject to the horrors of war and a longlisting circle of violence. For example, the peace deal of the Islamic Republic of Afghanistan with the Hezb-e Islami party granted full judicial immunity to the party leader, Hekmatyar. The deal failed to entitle victims of gross human rights violation or their families to the right to truth. Hekmatyar was famous at Kabul University for throwing acid on the face of women. In 1980, he extended his attack on intellectuals and NGOs that supported women’s education and health programs in the Afghanistan refugee camps of Pakistan.  

Hekmatyar’s ideological legacy is now preserved and carried by his grandson, Obaidulah Baheer. In his Op-ed, he referred to the campaign for codification of gender apartheid as a Trojan horse that encourages military intervention by NATO through international intervention. However, he overlooks that military intervention is the very last resort of humanitarian interventions, the international community must exhaust all the non-military options. The military intervention in Afghanistan during 2001 did not take place as a result of atrocities of the Taliban against women rather Taliban pledged to provide a safe sanctuary to Al-Qaida leader, Osama Bin Laden. As a Taliban apologist, he ignores that a society can heal and have lasting peace if it can maintain transitional justice rather than a culture of impunity.