Redefining apartheid in the Crimes against Humanity Treaty: Towards inclusive pathways forward

[Dr Nora Jaber is a Lecturer in Law in the Globalised Muslim World at the University of Edinburgh Law School, where she also serves as Programme Director of the Human Rights LLM and Deputy Director of the Al-Waleed Centre for the Study of Islam]

In February 2026, a two-day convening was held in Johannesburg, South Africa, to reflect on and advance proposals for a more inclusive definition of apartheid within the draft Crimes Against Humanity (CAH) treaty. Convened by MADRE and the Foundation for Human Rights, in collaboration with partner organisations, this marked the fifth convening dedicated to examining the treaty’s apartheid provision. It brought together activists, practitioners, and scholars from South Africa, Namibia, Palestine, Afghanistan, and beyond, creating a space for dialogue among communities with lived experience of systemic domination.

The timing of the convening was particularly significant, as its discussions and outcomes were intended to inform state submissions on the draft treaty text to the UN Secretary-General ahead of the 30 April deadline. Those submissions will feed into the consolidated negotiating text to be considered at the Preparatory Committee’s 2027 session and in the subsequent negotiations leading to the 2028-2029 diplomatic conference.

At present, the draft treaty reproduces the definition of apartheid contained in the Rome Statute of the International Criminal Court. That definition has, however, been repeatedly criticised for its narrow scope. Critics argue that it risks excluding contemporary victims of apartheid-like systems of domination, including Palestinians living under Israeli rule, as well as women and LGBTQI+ persons living under the Taliban regime in Afghanistan.

The Johannesburg convening was therefore organised to consider whether states negotiating the CAH treaty should retain the existing Rome Statute definition or adopt a more inclusive formulation capable of capturing institutionalised systems of oppression structured around race, gender, and their intersection, and historically constituted through colonialism. At stake was whether international law might develop stronger tools to recognise and address systemic oppression affecting a wider range of communities.

Participants considered a number of important, and at times contested, questions. Among the most significant was whether systemic discrimination on the basis of gender should be included within the definition of apartheid and, if so, how it might be incorporated in a manner that is both genuinely inclusive and attentive to the socially constructed and non-binary nature of gender. Participants also reflected on whether the recognition of “gender apartheid” as a separate crime might inadvertently obscure the inherently gendered nature of apartheid itself, thereby erasing the experiences of Southern African and Palestinian women who have lived under apartheid regimes.

At the same time, South African, Namibian, and Palestinian participants raised a distinct and longstanding concern regarding the non-recognition of apartheid’s colonial dimensions, particularly in light of its prior omission from the Rome Statute. While current proposals to revise and expand the definition, including through the recognition of gender, have intensified this concern, participants emphasised that the need to foreground the colonial contexts in which apartheid has historically been implemented exists independently of such proposals. Failing to do so, they cautioned, risks diluting apartheid’s historical essence as a form of colonial domination.

From these discussions, the following definition was proposed:

“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.”

This formulation seeks to capture both the intersectional nature of apartheid discrimination and its historical links to colonialism. In doing so, it aims to align the definition more closely with the lived and historical realities of apartheid, while maintaining doctrinal clarity and precision.

The reflections that follow consider why definitional precision is of particular importance in this context and identify several considerations that ought to inform both the process of definition and the broader project of treaty drafting, in order to ensure a just and inclusive outcome.

The importance of exercising definitional caution

The making of the CAH treaty represents a significant legal moment. New international treaties are difficult to negotiate and even harder to amend once adopted. The definitional choices made in the drafting process will likely shape international accountability frameworks for decades. They also reflect, and potentially entrench, political and epistemic decisions about which forms of domination international law is prepared to recognise and respond to.

Legal definitions matter because law does not simply describe reality; it plays a role in shaping and organising it. What is recognised in law, therefore, has important consequences. It determines which harms become visible and which remain invisible. It also shapes how lived experiences are represented and understood, and what forms of accountability become legally and politically possible. Put differently, when systems of domination are inaccurately characterised, the legal tools designed to address them frequently prove inadequate. This is, of course, notwithstanding the broader limits that critical legal scholars have identified in international law’s tendency towards abstraction and its persistent ineffectiveness in addressing the structural causes of harm.

These risks are particularly present in proposals to simply reproduce the Rome Statute definition. The current formulation has been criticised for narrowing the conceptual scope of apartheid to only based on race and for utilising outdated terminology that focuses on victims’ “groups” instead of perpetrator intent. It has also been criticised for disconnecting apartheid from its colonial roots and from the legal and political processes through which racial categories are constructed and imposed.

Reproducing this definition today risks further narrowing the concept at a moment when realities require greater analytical expansion. A narrow definition may exclude victims whose experiences of systemic oppression operate not only through racism but also through gender discrimination, or through the intersection of both.

At the same time, expanding the definition must not sever apartheid from its historical grounding. Apartheid emerged from a specific anti-colonial struggle tied to settler colonialism, racial hierarchy, and the denial of self-determination. A modern definition must honour that legacy.

In this respect, proposals to codify “gender apartheid” as a separate crime in response to the Taliban’s oppression of women and LGBTQI+ persons, must be approached with particular caution. Such proposals risk becoming implicated in precisely these problems by extending the concept in ways that unsettle its historical specificity and open it to new forms of legal and political instrumentalisation.

The challenge, therefore, is to modernise the definition without diluting or dehistoricising it. This requires recognising that race and gender are not biological facts but socially constructed systems of domination, produced and maintained through institutions, including law, often as a means to serve and entrench colonial systems of control.

It also requires acknowledging an important historical reality, namely, that apartheid regimes have always operated through mutually reinforcing racial and gender hierarchies. In South Africa and Namibia, and in Palestine today, racial domination has been enforced through gendered regulation of labour, family life, movement, and reproduction.

As Southern African feminists have long insisted, apartheid was never solely racial in its operation; it was profoundly and structurally gendered, indeed hyper-patriarchal. While participants expressed full solidarity with women in Afghanistan facing gender-based oppression, they noted that asking them to support the codification of “gender apartheid” as a separate crime would be tantamount to asking those who have long contested the existing definition of apartheid as purely racial for its erasure of gendered and intersectional oppression to endorse a framework that may reproduce those exclusions rather than address them.

If we adopt legal definitions that force racial and gender oppression into separate categories, we risk reproducing the fragmentation that obscures victims’ lived experiences. We also risk creating prosecutorial frameworks that require separate charges for forms of domination that are in fact inseparable in practice.

Accordingly, what emerged clearly from the February meeting was a strong insistence that any proposed definition recognise apartheid as grounded in racism and patriarchy while retaining its historical roots in colonialism. It was on this basis that the proposed definition set out above was developed. Its inclusion of the phrase “or other forms of colonial discrimination” echoes efforts within international law to recognise the links between colonialism and apartheid, as reflected, for example, in the preamble to the 1973 Apartheid Convention. It also responds to calls by the African Union to recognise colonialism as a crime against humanity.

At a subsequent conference held in Johannesburg in April 2026 – organised by the Centre for Applied Legal Studies and the Foundation for Human Rights, in partnership with MADRE and Amnesty International – participants proposed revising this phrase to “colonial domination.” At the conference, Dr Christopher Gevers suggested that this revision would better capture Third World framings of apartheid as a structure of racial domination rooted in colonial rule, rather than a series of discrete acts of discrimination. It is also more closely aligned with earlier international legal debates, including discussions around the inclusion of “colonial domination” in the ILC’s 1991 draft code.

What is also important is careful attention not only to the definition itself but also to its interpretation once adopted. In particular, there is concern about the absence from the current draft treaty of a provision analogous to Article 21(3) of the Rome Statute, which requires crimes to be interpreted consistently with international human rights law and jurisprudence. Without such guidance, courts may default to narrower readings shaped by outdated assumptions about race and gender.

A well-framed apartheid framework should therefore achieve at least three things. It should remain grounded in apartheid’s colonial roots as experienced in Southern Africa, recognise race and gender as socially constructed and intersecting systems of oppression, and equip courts with interpretive tools that allow the law to evolve alongside developments in human rights law.

Recommendations for inclusive pathways forward

For communities living under systems of domination, evolving definitions of apartheid carry profound implications. Legal recognition can validate lived realities, name systems of oppression, and open pathways to accountability. When communities see their experiences reflected in international law, that recognition can support advocacy, mobilise international attention, and create new possibilities for protection and redress.

At the same time, as discussed above, legal definitions also carry significant risks. If crafted without sufficient care, legal categories can invisibilise harm and produce forms of epistemic erasure by excluding those whose experiences fall outside the boundaries of prevailing legal imagination. Where the definition is too narrow, law itself may become a tool of exclusion, inadvertently legitimising existing hierarchies by codifying limited understandings of domination and foreclosing recognition for those who do not fit them.

This gap has serious consequences. At a moment when the legitimacy of international law is already under serious question, it further deepens distrust and reinforces the perception, widely felt across many parts of the world, that international law speaks in the language of justice while failing to adequately recognise and address the experiences of those subjected to systemic oppression.

If the objective is an inclusive and emancipatory definition of apartheid, then the process of defining it must itself reflect those same principles. Justice cannot emerge from exclusionary methodologies. This requires several commitments within the drafting process.

It must engage seriously with critique and contestation rather than treating them as obstruction. More often, such interventions reflect the insistence of those most affected that the law more accurately capture lived realities. Indeed, this kind of critical engagement strengthens legal frameworks by exposing blind spots before they become entrenched in treaty text.

It also requires the meaningful leadership and participation of affected communities in shaping the conversation, which was one of the central aims of the above-mentioned convenings and a key reason they were held in South Africa. Such communities must be recognised not merely as subjects of protection, but as producers of knowledge about how systems of domination actually operate. This, in turn, requires resisting epistemic hierarchies that privilege technical expertise over lived experience. While doctrinal precision remains important, experiential knowledge is indispensable to understanding how oppression operates across institutions and identities, and how it structures everyday life.

Finally, scholars, activists, and practitioners must remain attentive to how their work shapes future legal interpretation and political decision-making. The scholarship, advocacy, and legal language produced today will influence how courts and policymakers understand apartheid, and what anti-apartheid justice may come to look like in the years ahead. This carries a responsibility to centre the experiences, knowledge, and demands of those with lived experience, whom justice must ultimately serve.

The importance of these suggestions is reflected in the Preparatory Committee’s express emphasis on broad participation in the treaty-making process by civil society actors, including those without ECOSOC consultative status. In doing so, the Committee recognises both the substantive value of their contributions and the importance of ensuring an inclusive process, particularly one that meaningfully includes voices from the Global South.

This is therefore a consequential moment. International law has clear limits, and many communities are understandably disillusioned, particularly in the current geopolitical climate. Legal recognition alone will not dismantle systems of oppression. However, law can still function as one tactic within broader struggles for justice, provided it remains responsive to those struggles rather than detached from them.

Moments of treaty drafting are especially significant because they determine whether legal categories and interpretive pathways are opened or foreclosed, and whether future advocates inherit tools for resistance or encounter new barriers. For that reason, the present drafting process offers an important opportunity to resist further narrowing and instead articulate a definition of apartheid that is historically grounded, analytically modern, intersectionally attentive, and oriented towards solidarity.