A Call for a New International Crime: Gender Apartheid

Introduction

Recently, in June 2024, human rights lawyers and activists from non-governmental organisations such as Amnesty International called on UN member states to finally recognise ‘gender apartheid’ as a crime under public international law. The concept of gender apartheid was first created by Afghan human rights activists and feminists as a result of the systemic oppression that Afghanistan’s women and girls have faced under the Taliban’s rule in the 1990s. What instigated its permeation in the international law community was Afghanistan’s passing of its most recent inhumane law in August 2024, which stated that women could not speak or reveal their faces outside their homes, or read or sing aloud when in the home. According to Agnès Callamard, Amnesty International’s Secretary General, the global community “has failed to adequately recognize, acknowledge and address the institutionalised…domination and oppression of women, girls, and LGBTI people. 

Given that this gender-based violence has been able to escalate in Afghanistan, and other states have increasingly legalised institutionalised gender-based oppression - Iraq, for example, has lowered its age of consent to nine years old - it is clear that there is a gap in public international law that must be addressed to protect women and gender minorities from further suffering and harm. Currently, UN member states are discussing a possible draft Crimes Against Humanity Convention; there are further mechanisms that international lawyers could use to recognise gender apartheid as a crime, such as amending the Rome Statute of the International Criminal Court (ICC) to make gender apartheid an ‘arrestable offence’ through which individuals, i.e. members of government who enforce or legislate gender-apartheid based laws, could be liable for criminal prosecution. All of these factors raise an important question: Should gender apartheid be recognised as an international crime, and if so, how would it be prosecuted in practice? 

This essay will argue that in the face of the heinous gender-based oppression violating the rights of women and girls across Afghanistan, Iraq, and other states, the international community has both a moral and legal responsibility to recognise gender apartheid as a crime under public international law. The essay will also explore potential avenues for how perpetrators of this crime would be criminally prosecuted, as well as why its international recognition is fundamental despite practical limitations. First, the essay will define gender apartheid and explore what makes the concept unique amongst other gender-based crimes. Second, it will explore the limitations of prosecuting gender persecution and why gender apartheid protects all women and gender minorities in a more inclusive way. Third, the essay will investigate the possible effects of amending the Rome Statute and elaborate on what an amendment could achieve for victims. Finally, the essay will address some of the challenges that may arise from such an amendment and explain why, despite these obstacles, amending the Rome Statute to include gender apartheid as an international crime is the best path forward.

Furthermore, given the gendered nature of the discourse surrounding gender-based violence, it would also be prudent to reflect on the potential inclusion of gender apartheid in international criminal law through a feminist perspective. Thus, this essay will explore the issue of gender apartheid through a radical feminist point of view, touching on the ways in which the systematic biases of public international law and its relevant institutions have precluded gender apartheid from being considered as abhorrent as similar regimes like racial apartheid. 

What is gender apartheid?

Firstly, in order to understand why a new international crime for gender apartheid is necessary, it is critical to define what gender apartheid actually constitutes. According to lawyers advising for the non-governmental organisation International Service for Human Rights, which protects and promotes human rights standards, gender apartheid may be defined as the following: 

“The crime of gender apartheid means inhumane acts of a character similar to those referred to in paragraph 1 [of Article 7 of the Rome Statute], committed in the context of an institutionalized regime of systematic oppression and domination by one gender group over any other gender group or groups and committed with the intention of maintaining that regime”.

What is unique about the concept of gender apartheid is that it not only captures the ‘inhumanity’ of acts such as gender-based violence, but is extended further to note the ‘systematic’ oppression faced by its victims, whether state-sanctioned or institutionalised through other mechanisms. Therefore, to refer to gender apartheid as the same phenomenon as gender-based violence would be disingenuous, as gender apartheid is more akin to an imposed system of segregation in the vein of the racial apartheid crimes which were committed in South Africa until the early 1990s. In short, while gender-based violences may be described as a series of human rights violations, gender apartheid is the “system of governance” that perpetuates these abuses through law and public policy. It is important to understand the distinction between these two concepts to dispel any notion that victims of gender apartheid are protected under public international law, as currently, there is no path forward for international law to prevent the achievement of gender apartheid’s true aim, especially in the Taliban-controlled Afghanistan: “an erasure of the humanity of women”. 

Following this, the underlying conclusion that gender apartheid is, at present, not recognised as an international crime raises a crucial issue: what gender-based crimes are then recognised? According to Article 1(h) of the Rome Statute, the International Criminal Court (ICC) has jurisdiction to prosecute a crime against humanity committed through “persecution against any identifiable group or collectivity” based on characteristics including gender, in which persecution is defined in Article 2(g) as the “intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”. In recent years, the ICC has worked to prioritise the prosecution of gender persecution and earlier this year, the Prosecutor of the International Criminal Court -  Karim A.A. Khan KC - publicly announced the Court’s new initiative to advance accountability for gender persecution given that “sexual and gender-based crimes are among the gravest under the Rome Statute”. However, although the ICC has acknowledged that such crimes can form as a result of ‘structural discrimination’, there are several issues with how gender persecution is framed in the Rome Statute which limit its protection for victims of gender apartheid. 

Limitations of Gender Persecution

The first major issue is that the Office of the Prosecutor only has jurisdiction to investigate gender persecution when it is committed in conjunction with any of the acts noted in Article 7(1) - murder, extermination, enslavement, or deportation or forcible transfer of population - or any other crime under the Court’s jurisdiction. The problem here is that there exist certain deprivations of liberties which can make one gender a set of second-class citizens, but such policies do not make up international crimes. For instance, the 1.4 million Afghan girls and young women who have been banned from attending secondary school and higher education after the age of 12 are not being forced into ‘enslavement’ in the context of ownership or trafficking, but they are suffering from a systematic oppression that has infringed on their fundamental right to education, as expressed in the UN Convention on the Rights of the Child. According to the Convention, states have a responsibility to make different forms of secondary education available and accessible to every child, yet without domestic enforcement of the treaty’s provisions from Afghanistan’s government or international pressure from other states to comply, the consequences of infringing on children’s rights are negligible. This reveals that human rights violations which contribute to institutional oppression of women and girls can occur without the perpetrators facing any repercussions, even in public international law. Therefore, the concept of gender persecution is too limited in scope to account for the various ways that an institutional regime can segregate one gender group from another. 

Moreover, in order to provide further context on this failure of international law to consider the violations of women’s inalienable rights as part of a wider apartheid regime, it would be worthwhile to consider the issue from a radical feminist perspective. According to Catharine A. MacKinnon, a notable radical feminist legal scholar, public international law fails to hold male perpetrators accountable for systemic violence against women because human rights principles and violations have been modeled on the ‘male reality’ or the lived experience of men. Since “male dominance is built into the social structure”, men become legally entitled to “deprive [women] of their human rights on a mass scale”. MacKinnon argues the result of this system is that violations of women’s rights are viewed as ‘natural’ and ‘prelegal’, which is a useful explanation that could elucidate why international law mechanisms are unwilling to address such human rights abuses or provide redress to the women and girls who comprise the victims.  

The second major issue is that the conceptualisation of ‘gender’ in the Rome Statute is too narrow to fully protect all victims of gender apartheid, especially those from the LGBTQIA+ community. According to Article 7(3) of the Rome Statute, gender is defined as “the two sexes, male and female, within the context of society”, and it is emphasised that the meaning of gender cannot be interpreted any differently from this definition. The problem with this definition, then, is that it equivocates gender with the concept of ‘biological sex’ and fails to acknowledge gender as a social construct, resulting in a blatant disregard for those whose gender identities do not match with the one assigned at birth, such as transgender individuals or non-binary people. There are several reasons for why this definition of gender was established, one of which is that religious states such the Holy See which were involved in the negotiations of the Rome Statute’s drafting were afraid that liberating the concept of gender beyond biological sex would leave room for the inclusion of sexual orientation as a protected characteristic in crime against humanity investigations and thus “alter religious and cultural standards”. What is more important, however, is what the consequences of such a limiting definition are: victims of gender persecution crimes cannot adequately seek justice if the crimes were targeted on the basis of sexual orientation or gender identity. Unfortunately, this means that the innocent transgender, homosexual, and lesbian victims of the Taliban’s inhumane crimes of sexual assault, torture, and even murder cannot obtain genuine accountability as the law on gender persecution currently stands in the Rome Statute. Thus, the only way to better protect such victims is to expand public international law’s prosecution of systematic gender-based oppression beyond the crime of gender persecution and establish a more inclusive and defined crime such as gender apartheid. 

Effects of Amending the Rome Statute

Now that the limitations of prosecuting gender persecution alone have been elaborated, it would next be useful to consider the following issues: what would amending the Rome Statute to incorporate gender apartheid as a crime against humanity accomplish, and how would prosecuting the crime work in practice? Firstly, it would be prudent to mention that there is no evidence of a crime of gender apartheid under customary international law nor any treaty law to support its establishment - other legal instruments beyond the Rome Statute such as the International Convention on the Suppression and Punishment of the Crime of Apartheid only consider apartheid on the basis of race. Thus, it seems reasonable to agree with Justice Richard Goldstone of South Africa, a participant in the drafting of a Crimes Against Humanity Convention, that amending the Rome Statute would be the “most direct way to criminalise gender apartheid internationally”. The Office of the Prosecutor in the ICC would have the authority to investigate and prosecute alleged perpetrators of a gender apartheid offence as a result of its inclusion in the statute. Moreover, the ICC may be the best positioned international organisation to combat crimes of gender apartheid due to its experience in prosecuting humanity’s worst crimes, such as genocide and war crimes, and has measures in place to protect witnesses who provide testimony in the Court’s trials. The prosecution of gender apartheid could achieve a substantive mechanism to provide redress to victims, including possible reparations. Moreover, prosecution of the crime could work similarly to that for other crimes against humanity if the ICC were to follow the same principles. For instance, when determining the mental element or mens rea of gender apartheid, Article 30(1) of the Rome Statute provides a sufficient foundation: 

“a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge”.

With regards to the crime of gender apartheid, the ICC could assess if the mens rea has been fulfilled by questioning if the alleged perpetrator demonstrates “an intention of maintaining the institutionalised regime of systematic oppression and domination over a” gender group, as well as an awareness or knowledge that such systematic oppression would occur as a result of their transgressions. What would be crucial here is the acknowledgement that gender apartheid requires a “special intent to sustain an institutionalised system of [gender] discrimination”, as well as not limiting criminal liability to the maintenance of the regime - as the definition from International Service for Human Rights denotes - but expanding the definition to include the establishment or creation of an oppressive regime as well. 

Furthermore, in considering the radical feminist perspective, an amendment to the Rome Statute would not only be useful with providing redress to victims of gender apartheid through a judicial mechanism, but in a broader sense, an amendment would also elevate women’s rights to be viewed on an equal footing as human rights. According to MacKinnon, current violations of women’s rights are either perceived as “too female to fit the concept of human or too human to fit the idea of female”, resulting in a human rights law regime that is too biased to reflect the reality of women’s lives. However, by including gender apartheid as an international crime on the same level of other crimes against humanity, the International Criminal Court would have the opportunity to address the unique ways in which women and gender minorities can be abused and exploited that men cannot be, or which at least would be “exceptional for men” in a patriarchal society. 

Challenges With Amending the Rome Statute

Nevertheless, despite the merits for the inclusion of a crime of gender apartheid as well as a clear gap in public international law for the protection of its victims, there are several challenges with amending the Rome Statute to prosecute such perpetrators. Firstly, as outlined in Article 9(2) of the Rome Statute, any amendments must be passed “by a two-thirds majority of the members of the Assembly of States Parties”. Such a supermajority is very difficult to reach in practice due to the political implications and sensitive nature of the crime involved, and the amendment’s adoption would necessitate the support from a “substantial coalition of state parties”. 

Secondly, apartheid on the basis of race has been a crime against humanity since the Rome Statute’s entry into force in 2002, yet no one “has ever been prosecuted for this crime”. While the absence of a prosecution for this crime does not reduce the value of recognising gender apartheid, the possibility that the ICC either did not have the resources or the interest in prosecuting crimes of racial apartheid is a pertinent issue to consider. 

Thirdly, there are limits to the ICC’s jurisdiction that increase the challenges of prosecuting the crime practically. For instance, according to Article 12 of the Rome Statute, the Court can only exercise its jurisdiction if the crime occurred in the territory of a state party to the statute, or if the alleged perpetrator is a citizen of a member state. The only exception to this rule, as explained in Article 14, is if the case is referred to the ICC by the Security Council acting under Chapter VII of the Charter of the United Nations. For victims in non-party states, this means that the ICC has no jurisdiction to investigate crimes of non-member states if the Court does not have the consent of the respective government to do so. There are situations where the conceptualisation of jurisdiction has been applied more expansively to allow for the ICC to step in, but such cases are rare. For example, the Pre-Trial Chamber announced earlier this year that it will be investigating alleged war crimes in territory claimed by Israel - a non-party state - since 1967, such as East Jerusalem, Gaza, and the West Bank, which is only possible because the territory of Palestine acceded to the Rome Statute in 2015. However, in states that are not party to the Rome Statute, such as Iraq, the ICC would not have the jurisdiction to prosecute even the worst gender apartheid offences, which is a notable weakness of the ICC's mandate. 

Despite all these factors, though, the following conclusion should be argued: the limitations of universal jurisdiction do not reduce the value of the ICC as an accountability mechanism nor make the Court a ‘bad’ candidate for seeking justice for gender apartheid victims. The truth of the matter is that there is no perfect solution, and when working to end gender apartheid, perhaps this common aphorism is true: “Do not let perfect become the enemy of good”. 

Additionally, there are critics who argue that an expansion of jus cogens norms propelled by the establishment of gender apartheid as a crime would only serve to ‘dilute’ human rights commitments and weaken the credibility of international law. According to such critics, the atrocities of systematic oppression of women and gender minorities in Afghanistan are not worsened by an “accountability vacuum” or gap in international law frameworks, but rather by “an issue of implementation” that can be resolved by further prioritising gender persecution investigations. The error with this approach is that the institutionalised violence and gender-based segregation taking place in Afghanistan can only be fully encapsulated by the concept of apartheid, as criminal liability for gender persecution fails to underscore the widespread implications of the Taliban’s regime beyond just an “intentional and severe deprivation of fundamental rights”. Moreover, because the Rome Statute is a legal instrument which already recognises both gender-based crimes and apartheid as crimes against humanity and has the potential to prosecute them, amending the statute would provide a sustainable pathway for bringing perpetrators to justice. 

Why An Amendment Is the Best Path Forward

However, such an argument raises a final point of contention: even with the understanding that gender apartheid should be recognised as a crime, is it fair to conclude that an amendment to the Rome Statute is the best way to incorporate the crime into public international law? The answer to this is yes, for notable reasons. Firstly, it is true that other alternatives exist, such as advocacy for the codification of gender apartheid in the draft Convention on Crimes Against Humanity currently being negotiated by states. However, the reality is that a lack of consensus has resulted in “stagnation” in the drafting process and thus negotiating the inclusion of this crime could take too long to meaningfully protect victims. On the other hand, the Rome Statute already has a mens rea and other necessary requirements for crimes against humanity in place to effectively prosecute gender apartheid offences. 

Secondly, while there have been calls to introduce gender apartheid as an additional optional protocol to the Apartheid Convention, this approach would not be the most effective because the Apartheid Convention was drafted within the context of racial apartheid in South Africa and is therefore too narrow to address the substantive concerns of gender apartheid in states such as Afghanistan and Iraq. The Rome Statute, however, is expansive enough to respond to all the possible implications of gender apartheid regarding institutionalised gender-based violence, and therefore is the best path forward for increasing accountability in public international law. 

Conclusion

In conclusion, the international law community has a moral and legal obligation to recognise gender apartheid as a crime against humanity. The current law on gender persecution is too narrow in scope to meaningfully protect women and gender minorities from systematic oppression and state-sanctioned segregation, leaving generations of women across Afghanistan and Iraq vulnerable to institutionalised violence without any access to redress or accountability. The only way to truly protect these victims and address this significant gap in public international law is to amend the Rome Statute and expand the concept of apartheid on the basis of gender, allowing the International Criminal Court to exercise its jurisdiction accordingly. Moreover, the fact that Afghanistan is a state party to the ICC demonstrates the potential for the Court to initiate investigations into alleged perpetrators as soon as possible, paving the way for human rights protections of women and gender minorities across both Afghanistan and the world. 

Roma Beke

Bibliography

International Treaties and Conventions:

Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3

UNGA, 'Convention on the Rights of the Child' (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, art 28(1)(b)

Books and Reports:

MacKinnon C A, Are Women Human?: And Other International Dialogues (Harvard University Press 2006)

Journal Articles:

Bennoune K, 'The International Obligation to Counter Gender Apartheid in Afghanistan' (2022) 54 Columbia Human Rights Law Review 1

Dutton Y and Sterio M, ‘Prosecuting Gender Persecution At the ICC: Definitions, Policies, And Practice’ (2023) 46 Fordham International Law Journal 5

Kemp G and Nortje W, ‘Prosecuting the Crime against Humanity of Apartheid: The Historic First Indictment in South Africa and the Application of Customary International Law’ (2023) 21 Journal of International Criminal Justice 2

Lingaas C, ‘The Crime against Humanity of Apartheid in a Post-Apartheid World’ (2015) 2 Oslo Law Review 2

Websites:

Amnesty International, ‘Global: Gender apartheid must be recognized as a crime under international law’ (Amnesty International, 17 June 2024) https://www.amnesty.org/en/latest/news/2024/06/gender-apartheid-must-be-recognized-international-law/#:~:text=%E2%8 accessed 9 December 2024

Artemis Akbary and Kirby Anwar, ‘LGBTQI+ Afghan Victims of Apartheid: A Call for Recognition & Justice’ (Opinio Juris, 26 September 24) https://opiniojuris.org/2024/09/26/lgbtqi-afghan-victims-of-apartheid-a-call-for-recognition-justice/ accessed 9 December 2024  

Dubey U, ‘Jurisdiction of the International Criminal Court Over Non-party States: Legitimate or Ultra Vires?’ (Jurist news, 19 May 2021) https://www.jurist.org/commentary/2021/05/utkarsh-dubey-icc-jurisdiction-over-nonparty-states/ accessed 9 December 2024

International Bar Association, ‘Shattering Women’s Rights, Shattering Lives: Parliamentary Ad-Hoc Inquiry Into The Situation Of Women And Girls In Afghanistan And Iran’ (International Bar Association, March 2024) https://www.ibanet.org/document?id=Gender-Apartheid-Inquiry-Report-March-2024 accessed 9 December 2024

International Criminal Court, ‘Policy on the Crime of Gender Persecution’ (International Criminal Court, 7 December 2022) https://www.icc-cpi.int/sites/default/files/2022-12/2022-12-07-Policy-on-the-Crime-of-Gender-Persecution.pdf accessed 9 December 2024

International Criminal Court, ‘The Office of the Prosecutor launches public principles to advance understanding of the crime of gender persecution’ (International Criminal Court, 17 January 2024) https://www.icc-cpi.int/news/office-prosecutor-launches-public-principles-advance-understanding-crime-gender-persecution accessed 9 December 2024

International Criminal Court, ‘State of Palestine’ (International Criminal Court) https://www.icc-cpi.int/palestine accessed 9 December 2024

Kelly A and Joya Z, ‘Frightening’ Taliban law bans women from speaking in public’ (The Guardian, 26 August 2024) https://www.theguardian.com/global-development/article/2024/aug/26/taliban-bar-on-afghan-women-speaking-in-public-un-afghanistan accessed 9 December 2024 

Macdonald A, Juratowitch B, Sander A, and Hart N, ‘Re: Crime of Gender Apartheid’ (International Service for Human Rights, 6 March 2023) https://ishr.ch/wp-content/uploads/2023/06/Gender-apartheid.-Final-2023-03-06-1.pdf accessed 9 December 2024 

Sebouai L, ‘Iraq to lower the ‘age of consent’ for girls to nine’ (The Telegraph, 7 November 2024) https://www.telegraph.co.uk/global-health/women-and-girls/iraq-poised-to-lower-the-age-of-consent-for-girls-to-nine/ accessed 9 December 2024

Shariati A A, ‘Gender Persecution and Gender Apartheid in Afghanistan: Seeking the Appropriate Legal Basis for International Accountability’ (European Journal of International Law: Talk!, 10 April 2024) https://www.ibanet.org/document?id=Gender-Apartheid-Inquiry-Report-March-2024 accessed 9 December 2024 

United Nations Educational, Scientific and Cultural Organisation, ‘Afghanistan: 1.4 million girls still banned from school by de facto authorities’ (United Nations Educational, Scientific and Cultural Organisation, 24 September 2024) https://www.unesco.org/en/articles/afghanistan-14-million-girls-still-banned-school-de-facto-authorities accessed 9 December 2024