April 30th Deadline: States Should Start CAH Treaty Negotiations with this Modernized Apartheid Definition

[Lisa Davis is a professor of law at CUNY Law School, and the ICC special adviser on Gender and Other Discriminatory Crimes.

Kirby Anwar is Visiting Associate Professor of Law at the Human Rights and Gender Justice Clinic, CUNY School of Law.

Wendy Isaack is Senior Legal Fellow at MADRE.

Huma Saeed is Senior Transitional Justice Fellow at Human Rights and Gender Justice Clinic, CUNY School of Law and Afghanistan Advisor at MADRE.]

As governments prepare submissions to the UN Secretary-General on the draft crimes against humanity (CAH) treaty, due April 30, they face a consequential choice: replicate an outdated definition of apartheid or modernize it to reflect historical and contemporary realities. The April deadline is pivotal. The Secretary-General will consolidate state submissions into the negotiating text that will guide the 2027 Preparatory Committee session and intergovernmental negotiations. What States propose now will shape the treaty’s future.

No one has been held criminally accountable for the crime of apartheid, a half century after the Apartheid Convention codified it as a crime against humanity and decades after its inclusion in the Rome Statute. The CAH treaty negotiations therefore offer a critical opportunity to revisit the definition and ensure it reflects victims’ lived experiences.

States should begin negotiations by proposing this modernized definition of apartheid which draws on discussions among civil society that have experienced apartheid and its aftermath:

The crime of apartheid means inhumane acts … committed in the context of an institutionalized regime of systematic oppression and domination by one group over any other group or groups, on race, gender, or other grounds of colonial discrimination, and committed with the intention of maintaining that regime.

From Dialogue to Definition

The conversation on apartheid is shifting in new directions at the international level. Following the Taliban’s takeover in 2021, members of the international community renewed calls for recognizing systematic oppression of women and girls in Afghanistan as a newly codified crime of “gender apartheid.” That understanding of the context is important. Afghan women, girls, and LGBTQI+ persons endure an institutionalized, discriminatory regime of oppression and domination that demands recognition and accountability.

This recognition has further underscored longstanding gaps in global accountability. For decades, the Palestinian people have sought formal acknowledgment of apartheid under international criminal law. Survivors of apartheid in South Africa, a country still marked by extreme inequality, have yet to see a single prosecution, while domestic cases related to apartheid-era crimes are only now beginning to move forward. Meanwhile, the multifaceted harms black women experienced under apartheid remain legally invisible.

How can international law evolve to address the emerging recognition of structural oppression in Afghanistan without sidelining communities whose struggles against apartheid shaped the very concept of the crime?

To confront that question, MADRE has collaborated with partner organizations to convene dialogues over the past two years on three continents. Last month, in partnership with Foundation for Human Rights (FHR), MADRE held its fifth convening in South Africa to examine the apartheid provision. Stakeholders from Palestine, Namibia, South Africa, and Afghanistan joined international advocates in Johannesburg and Pretoria to assess the current definition and discuss proposals to ensure all victims are recognized. 

By bringing together activists, policymakers, and survivors from places that have experienced apartheid, the dialogues aimed to ensure apartheid’s definition reflects lived experience. They also sought to ground the process of developing the draft CAH treaty in movement building across borders and identities.

Apartheid is not a crime of the past. It is a living legal and political question. For some South African and Palestinian anti-apartheid activists, the Johannesburg convening was their first meaningful opportunity to discuss how apartheid is defined in the draft treaty. That fact alone is significant. Apartheid formally ended in South Africa only in the 1990s, and many convening participants lived through it. 

Out of these conversations emerged the proposed definition of apartheid set out above. Its aim is to bring legal language closer to lived experience while preserving doctrinal clarity.

Adding “Other Grounds of Colonial Discrimination”

Apartheid did not emerge in isolation. It was shaped by colonialism, a fact recognized in the preamble of the Apartheid Convention and reaffirmed by States, particularly within the African Union. That language did not make it into the Rome Statute or the draft CAH treaty. The proposed definition above builds on prior proposals recognizing apartheid as grounded in racism and patriarchy, while the phrase “other grounds of colonial discrimination” responds to longstanding calls from civil society and African states to acknowledge apartheid’s colonial roots. 

This proposal does not expand the elements of the crime. Prosecutors would still be required to demonstrate inhumane acts committed to sustain an institutionalized discriminatory regime of systematic oppression and domination, with the intent to maintain that regime. It also does not require proof that a regime is formally colonial or that colonialism constitutes a separate crime. Rather, it ensures that forms of discrimination shaped by colonial systems are not excluded from legal recognition. By including a residual clause, the definition broadens the scope of recognition, allowing additional grounds for discrimination where they have been found in colonial contexts.

This approach mirrors the Rome Statute and the draft CAH treaty’s treatment of persecution, which codifies “political, racial, national, ethnic, cultural, religious, gender … or other grounds that are universally recognized as impermissible under international law.” This provision is generally understood to apply the “universally recognized” requirement only to the residual category of “other grounds,” without imposing that threshold on the enumerated grounds or any other part of the definition.

Recognizing the links between colonialism, apartheid and longstanding discrimination offers an opportunity to bridge conversations that have often developed in parallel, including efforts to address the legacies of colonialism and movements for gender justice. It echoes foundational international commitments such as the Durban Declaration and Programme of Action and the Apartheid Convention by acknowledging current colonial contexts and the ways colonial legacies shape discriminatory systems today. The Durban Declaration additionally recognizes that discrimination on the grounds of race can intersect with that on grounds of gender, producing distinct harms for women and girls. 

Foundational principles and jurisprudence in international, regional and national jurisdictions throughout the world and the policies of the International Criminal Court (ICC) Office of the Prosecutor also recognize the ways slavery and colonialism have shaped racial, ethnic, and gender discrimination. Colombia’s Special Jurisdiction for Peace echoed this understanding in jurisprudence for its Macro Case 002, drawing directly on these principles.

This grounding can foster broader engagement between African States and European and other governments that have championed gender equality, while also confronting the colonial histories that continue to underlie global inequalities.

“On Race, Gender or Other Grounds”: Recognizing Intersectional Oppression and Avoiding Fragmentation in the Apartheid Definition

Victim exclusion in international law can arise because treaty provisions create unnecessarily complex interpretive burdens or high evidentiary thresholds. The Rome Statute’s gender definition, for example, left prosecutors largely silent on gender persecution for over two decades due to its opacity. 

One proposed definition that risks similar interpretive burden defines apartheid as 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 any other gender group or groups.” This derives from the Apartheid Convention and, ultimately, the Genocide Convention, under which drafters understood “racial groups” as biologically fixed—a premise now widely rejected under human rights law. It also reflects language in the Rome Statute. However, Rome Statute Article 21 requires interpretation consistent with internationally recognized human rights, a safeguard omitted from the draft CAH treaty. Relying on outdated language that focuses on victim “groups” rather than perpetrator intent can produce flawed interpretations, including false claims that the Palestinian people do not constitute a “racial group” for purposes of the crime of apartheid, or that LGBTQI+ persons fall outside the concept of gender.

The definition also struggles to account for intersecting forms of discrimination. While it may describe systems of racial or gender oppression when they operate independently, it becomes problematic where these forms of oppression overlap—as they often do. Black women in South Africa and Namibia, for example, were systematically targeted under apartheid through policies restricting movement, employment, education, and political participation under apartheid. Where systems of racist and patriarchal oppression coexist, they rarely operate separately. They intertwine to produce compounded harms that cannot be fully captured by treating them as distinct, parallel systems. This formulation creates additional challenges for practical legal application because it frames racial and gender oppression as separate systems, even when both are enforced by the same regime.

Where a prosecutor demonstrates these separate forms of oppression, this would not on its own capture intersectionality. It would show that racial oppression exists and that gender oppression exists, but not that certain victims are oppressed because of their combination. To fully reflect the compounded harms experienced, for example, by black women under apartheid, prosecutors would need to show that the same regime enforces domination by one racial group over another racial group and, separately, by one gender group over another gender group, and then also demonstrate that additional harm arises from the intersection of these oppressive systems. 

This added layer of evidentiary and analytical work increases the prosecutorial burden and creates further opportunities for defense challenges. Under this framing, intersectionality can be effectively sidelined, particularly in resource-constrained prosecutions. This would leave the compounded impacts of overlapping oppression legally invisible. Even when such arguments are advanced, courts may be reluctant to interpret the provision in a way that fully recognizes intersecting oppression. This is the risk of exclusion.

A definition recognizing a regime of oppression based “on race or gender grounds” (parallel to “based on” language proposed by UN experts) offers a more workable approach. Rather than requiring proof of distinct forms of oppression and then an additional showing of their intersection, this approach allows prosecutors to demonstrate that a single oppressive system operates simultaneously on multiple, intersecting discriminatory grounds. The focus shifts from categorizing victims into discrete groups to examining whether perpetrators targeted them for one or more discriminatory reasons.

Under this approach, evidence that black women are targeted because they are both black and women strengthens, rather than complicates the case by illustrating how racial and gender discrimination reinforce one another to sustain the regime. The difference in definitions is significant. One formulation requires building parallel analyses and then proving their intersection; the other allows a single analysis to reflect the full scope of oppression.

Recent jurisprudence illustrates how this approach can function in practice. In the 2025 Abd-Al-Rahman judgment, the ICC recognized persecution on political, ethnic, and gender grounds, acknowledging how overlapping identities shaped the discriminatory conduct. Similarly, Colombia’s Special Jurisdiction for Peace has recognized persecution on both racial/ethnic and gender grounds against Indigenous and Afro-Colombian women and LGBTQI+ victims in its Macro-case 002. Both cases affirm that overlapping discrimination can shape persecutory conduct. The same can be done for apartheid. 

Why Definitions Matter

How apartheid is defined will determine who the law recognizes as victims and whether accountability mechanisms can realistically prosecute the crime. It is crucial to ensure the draft CAH treaty language avoids outdated assumptions or unnecessarily restrictive phrasing that obscure harms, including intersectional oppression.

Adding “on race, gender, or other grounds of colonial discrimination” to the apartheid definition is a starting point for negotiation. It is grounded in victims’ lived experiences. It recognizes intersectional harms and preserves prosecutorial clarity. It ensures that African States see their perspectives reflected, that Palestinians confronting racist apartheid are included, and that Afghan women, girls, and LGBTQI+ persons facing a regime of gender oppression are acknowledged within the definition of apartheid. It provides a framework that all states can support. The choices made now will shape protections for generations.

Photo attribution: “Graffiti of Peace in Bethlehem on Apartheid Wall” by Kis-Lev is licenced under CC BY-SA 4.0.