Between State Responsibility and Decolonial Practices: The Case of Gender Apartheid in Dismantling the Gender-Based Oppression of Afghan Women

[Astrid Le Jeanne holds an LLM by Research in International Law from the University of Edinburgh. Her work explores the evolving responses of international law to gender inequality and gender oppression]

In the first week of February 2026, the Taliban promulgated a new Criminal Procedure Code: a 119-article document that permanently consolidates a legal architecture designed to erase women and girls from Afghan public life. This code does not merely restrict rights; it institutionalizes a system of domination that renders the exclusion of women the law of the land, which many describe as ‘gender apartheid’.

Yet, as Afghan women are formally excluded from public life, the international community remains hesitant concerning the codification of the international crime of gender apartheid. The draft Convention on Crimes Against Humanity (CAH Convention), currently under negotiation at the United Nations, remains tethered to the 2019 International Law Commission text, which does not recognize gender apartheid as a distinct crime. Member States were invited to submit written amendments by 30 April 2026. At the time of writing, the codification project has not yet reached consensus, as only a small coalition of seven Member States—including Afghanistan’s UN-recognized mission, alongside states like Mexico, Timor-Leste, and Uruguay—has formally urged the United Nations to incorporate “gender apartheid” into the CAH Convention.

Hesitation can be attributed to the enduring skepticism surrounding the concept of gender apartheid. Drawing on the definition of apartheid under Article 7(2)(h) of the Rome Statute, gender apartheid has been proposed as ‘inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one gender group over any other group or groups, and committed with the intention of maintaining that regime’. This new definition has generated skepticism in both scholarly and policy debates. Among these concerns is the claim that the concept of gender apartheid is legally redundant and would feed a neo-colonial dynamic mirroring that of 2001.

This article examines these critiques by clarifying the legal function of gender apartheid and suggesting that its codification may serve both a distinct doctrinal role and a form of decolonial engagement within international law.

Beyond Redundancy: The Normative Power of Gender Apartheid

Skeptics argue that between the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Crime of Gender Persecution, the international legal toolbox is already sufficient. However, this view misinterprets the gap in international law: it is not a lack of prohibition of gender discrimination, but a lack of structural state responsibility .

Gender Apartheid as a Complement to CEDAW

In September 2025, Australia, Canada, Germany and the Netherlands formally filed a case with the UN’s International Court of Justice (ICJ) to hold Afghanistan accountable for violations of CEDAW. While this initiative represents an historic feminist action as this is the first-ever attempt to haul a state before the ICJ for systemic discrimination against women, the procedural design of this action remains structurally limited when confronting a rogue regime such as the Taliban’s de facto authorities.

While CEDAW prescribes a comprehensive framework for gender equality, its status as a peremptory norm (jus cogens) remains widely debated. The prevalence of substantive reservations to CEDAW, often undermining its very object and purpose, illustrates that the international community does not yet treat the prohibition of gender discrimination with the same non-derogable finality as racial discrimination. Consequently, the CEDAW framework remains vulnerable to extremist ideologies. This, combined with the fact that CEDAW operates primarily through State responsibility mechanisms dependent on domestic compliance and political will, makes CEDAW inadequate to the Afghan situation, where a State actively engineers a society built on gender exclusion. In such a scenario, demanding that the state reform itself is a legal fiction; the de facto Taliban authorities are fundamentally unwilling to dismantle the architecture they designed. Therefore, domestic state responsibility is a dead end. In this context, third-state responsibility becomes the primary mechanism for confronting the Taliban regime. This is precisely what the legal codification of gender apartheid enables.

Indeed, framing systematic gender domination as a crime against humanity relocates the issue to the realm of peremptory norms. Codifying gender apartheid within the draft CAH Convention would elevate the prohibition of such regimes to jus cogens status, as explicitly identified in the ILC’s 2022 Draft Conclusions on Jus Cogens. This recharacterization carries profound consequences under the law of State responsibility. Articles 40 and 41 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) impose duties on third States in cases of serious breaches of peremptory norms, including obligations of non-recognition, non-assistance, and a duty to cooperate to dismantle the apartheid regime. Gender apartheid thus shifts structural gender oppression from a domestic governance issue to an international legal concern.

Gender Apartheid versus Gender Persecution

A second objection maintains that gender persecution under Article 7(1)(h) of the Rome Statute already addresses situations such as the one in Afghanistan. Indeed, many observers believe that the ICC warrants of arrest against the Supreme Leader of the Taliban and the Chief Justice on the grounds of gender-based persecution serve as a sufficient legal pathway for weakening the Taliban regime. However, this fails to account for the “disease versus symptom” distinction.

Gender persecution targets the symptoms of oppression, whereas gender apartheid targets the ‘disease’, that is to say, the structural architecture of oppression itself. This is not merely a metaphorical distinction but reflects a difference in legal object: the act-based structure of persecution versus the regime-based character of apartheid. This distinction reflects the structure of Article 7 of the Rome Statute, which situates both persecution and apartheid among crimes against humanity committed as part of a widespread or systematic attack. Within that common contextual threshold, they diverge in their legal object: persecution is directed at discriminatory acts, whereas apartheid captures the institutionalized regime that structures and enables those acts.

While both can lead to the prosecution of their authors before the International Criminal Court (ICC), they engage third-state responsibility differently. This is the essential point of divergence and interest. Indeed, whereas individual criminal liability of Taliban leaders can be achieved under both frameworks, the condemnation of specific leaders leaves the state architecture legally intact. Third-state responsibility is therefore key. However, in cases of persecution, third States may discharge their duties only via secondary mitigation measures: granting asylum, issuing targeted sanctions against individual Taliban members, or supporting individual prosecutions.

In cases of apartheid, the institutional framework itself is declared unlawful. Crucially, the legal target triggers not only individual prosecutions and diplomatic isolation but also a duty of cooperation to dismantle the structures of the regime. Therefore, it does not merely mitigate consequences. Thus, gender apartheid becomes a tool for dismantling gender oppression and treating the disease, not only its symptoms. In sum, by targeting the system itself, this approach reduces the risk of recurring violations. This contrasts with the framework of persecution, where the “disease” persists even if the “symptoms” are treated.

Beyond Neo-colonialism: the Decolonial Power of Gender Apartheid

While the legal utility of gender apartheid is now clarified, its political legitimacy must be addressed. A critical trend has emerged where the rhetoric of human rights is viewed with suspicion, often co-opted to justify the illegal use of force. This situation directly feeds objections to the proposed legal recognition of ‘gender apartheid’ within the draft CAH Convention. However, reframing the project reveals that the demand for codification is not an imperial imposition, but a decolonial practice that reaffirms the structural limits to power set by international law.

The Campaign Against Gender Apartheid as a New Decolonial Practice

Addressing neo-colonial concerns requires acknowledging the limitations of the late-1990s “gender apartheid” rhetoric. Led primarily by Western organizations (the Feminist Majority Foundation), that earlier campaign often viewed Afghanistan through an Orientalist lens, portraying Afghan women as passive victims requiring Western “liberation.” Crucially, gender apartheid was framed to trigger pity, not as a formal legal project. The problem was therefore not the denunciation of oppression, but rather the narrative architecture which eventually allowed women’s rights to become entangled with military justification.

The narrative of the contemporary End Gender Apartheid (EGA) Campaign differs fundamentally. It is led by a coalition of Afghan, Iranian, and South African advocates who frame the concept as a robust legal solution. Within this movement, Afghan women are active agents demanding a seat at the international table to propose the tools for their own emancipation. By reclaiming the term, they reject the traditional neo-colonial dynamic where Western actors speak on their behalf; gender apartheid becomes a weapon of the oppressed rather than a gift from the West.

Globalizing the Vernacular

Beyond the narrative surrounding gender apartheid, the representativeness of the project of legal codification is contested. Many opponents accuse the contemporary campaign of neo-colonialism because of the profile of the leading figures of the movement.  While it is true that most of the leading advocates are diaspora individuals and part of a certain transnational elite, these characteristics do not mean that they are reproducing a neo-colonial dynamic. Rather, they are essential agents to vernacular demands.

Indeed, in a context where international law is structurally elite, the existence of intermediaries is therefore unavoidable. The relevant question is therefore not the profile of leading advocates but rather whether those intermediaries impose a narrative or translate it. This does not eliminate all risks of elite capture or narrative distortion, but it shifts the analytical focus toward the conditions under which transnational advocacy remains grounded in local agency.

Empirical evidence suggests that this campaign functions as a translation of indigenous demands rather than an external imposition. A 2024 survey across 19 Afghan provinces found that substantial majorities characterized Taliban policies as systemic domination and supported international recognition under the language of gender apartheid.

This aligns with the “globalization of the vernacular” strategy conceptualized by Cesar Rodríguez-Garavito. Local resistance movements, such as the Afghan cry for “Work, Bread, and Freedom,” represent indigenous demands for socio-economic and political rights. However, the severity of Taliban repression and the elitist structure of international law often prevent these voices from directly reaching global institutions.

Transnational intermediaries thus perform a crucial translational role: they convert these local claims into the doctrinal vocabulary of international law, particularly under the gender apartheid banner, which is highly emotional, politically resonant, and particularly symbolic in international law. The term “gender apartheid” serves as a crystallization of structural experiences already articulated locally. This process does not displace local agency; it extends it into arenas that are otherwise inaccessible to those on the ground.

Therefore, Afghan women are not passive recipients of Western legal categories. Rather, they strategically mobilize transnational networks to project their claims onto global institutions. In this sense, the elite dimension of the campaign does not reproduce neo-colonial hierarchy. It reveals the mechanics of global norm production: translation is necessary when local resistance seeks international recognition. The risk of epistemic domination is mitigated when translation is grounded in empirical resonance and sustained local agency.

Beyond the Use of Force: Dismantling the Interventionist Myth

Correlated with the fear of neo-colonialism is the fear of interventionist use of force, mirroring 2001. In the context of a critical return of American interventionists, this concern cannot be dismissed. However, with the structures of modern international law and state responsibility, the legal codification of gender apartheid does not represent a particular legal trigger to the use of force.

Lawful Means and Article 41 ARSIWA

As previously established, the recognition of gender apartheid within the CAH Convention would trigger the duties of third-party States under Article 41 of ARSIWA. This mandates that States cooperate to bring an end to serious breaches of peremptory norms. Crucially, Article 41 stipulates that such cooperation must be through ‘lawful means’.

Furthermore, Article 50 of ARSIWA explicitly states that any measures taken in response to a breach shall not affect “the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations.” Nowhere would the codification of gender apartheid authorize unilateral or unauthorized military action. Instead, it directs the international community toward non-military, structural responses: diplomatic isolation, the non-recognition of judicial acts or decrees issued by the regime, and the dismantling of the financial and legal structures that allow the institutionalized domination to persist.

The project for codification is, in essence, an attempt to move away from the “war on terror” paradigm toward a “war of laws.” It provides a framework for accountability that remains strictly within the bounds of the UN Charter, ensuring that the response to systemic oppression is proportionate, legal, and targeted at the regime’s architecture rather than the state’s territory.

Conclusion

Recognizing gender apartheid is therefore not a move toward redundancy, nor is it a revival of imperialist “liberation” narratives. It is a technical necessity that fills a structural gap in international law, and a decolonial demand from women who have been systematically erased from their own legal systems. In Afghanistan, the legal order itself has been redesigned as a weapon of exclusion. International law must respond by providing a tool capable of dismantling that order. Codifying gender apartheid is the normative step required to ensure that the “disease” of systemic gender domination is finally addressed with the same non-derogable finality as racial apartheid.