Is Gender Apartheid the New Forced Marriage?

Equality between men and women is inherent to the international human rights law framework. However, discrimination against women remains real, widespread, and in some cases institutionalized as gender apartheid – a system of governance enforcing systematic segregation and exclusion of women. Crucial to the understanding of gender apartheid is its systematic, pervasive, and intentional nature, paralleling racial apartheid. Yet, despite advocacy from experts, gender apartheid lacks formal codification under international law.

Historically, institutionalized gender-based violations have not been recognized as gender apartheid, instead being considered as persecution. Some experts have even argued that such characterization is sufficient as no gap in international law exists for a new crime of gender apartheid to be defined. This notion is however in debate.

The End Gender Apartheid Campaign, along with state and non-state actors, has recently succeeded in advocating for the negotiation of a separate Crimes Against Humanity Treaty. This is important as it would provide a pathway for the incorporation of such crimes into domestic law, create a legal basis for states to cooperate, and ensure state responsibility. This treaty however has been in the works at the International Law Commission since 2014, having only now reached the United Nations’ Sixth Committee in 2024, still having a long way to go. Further, the inclusion of ‘gender apartheid’ within it remains an uphill battle – so far, states seem to lack the political will to advocate for its recognition and prosecution. This article therefore examines the possibility of alternatively prosecuting gender apartheid in the context of the situation in Afghanistan as an ‘other inhumane act’ under Article 7(1)(k) of the Rome Statute.

The Nature of Gender Apartheid

‘Gender apartheid,’ more than societal discrimination, is a structural system of violations enshrined in legal, political, and cultural institutions. Feminists have argued that religious and cultural norms are often used to justify female subjugation, notably in Islamic societies like Afghanistan, where strict religious, legal, and moral notions enforce their subordination. Despite the existence of international human rights instruments like the Convention on the Elimination of All Forms of Discrimination against Women, their ratification and enforcement remain inconsistent due to political hesitancy and cultural barriers. While some others even advocate for amending the Apartheid Convention to include gender as a basis for oppression, the role of political will and the lack of a universally accepted definition of ‘gender’ in international law further complicate this effort. This inertia underscores the need for a robust legal mechanism, such as the International Criminal Court (ICC), to hold perpetrators accountable.

The significance of recognizing ‘gender apartheid’ as a distinct crime lies in its institutionalized nature. Unlike ‘gender-based persecution,’ which is a violation within an existing system, ‘gender apartheid’ is a feature of the system of governance itself. Such a system is designed to maintain male dominance by excluding and erasing women from public life, thereby ensuring their continued subjugation.

ICC and Gender-Based Crimes

Historically, international tribunals have under-prosecuted gender-based crimes. However, the ICC has advanced through its Policy on Gender-Based Crimes. It allows for a progressive interpretation of ‘gender’ and gender violence, including even non-sexual offenses like forced domestic labor and forced marriage. In this way, it also provides a foundation for considering gender apartheid under Article 7(1)(k).

It is however important to note that initiating proceedings before the ICC comes with its own set of obstacles. While the Prosecutor may initiate an investigation either proprio motu or on request, such initiation is impacted and influenced by political winds and public sentiments.

Limitations of Other Article 7(1) Crimes

Gender apartheid differs from gender-based persecution (Article 7(1)(h)) and racial apartheid (Article 7(1)(j)). While persecution requires discriminatory intent and a connection to another crime, gender apartheid involves the creation of an institutionalized regime of systematic oppression which becomes the criminal act itself. Further, unlike racial apartheid which is limited to discrimination on the basis of race, gender apartheid discriminates based on gendered identity. Such an attack against a specific group (here, women) is neither incidental nor isolated but a core feature of governance, distinguishing it from other crimes against humanity. Thus, prosecuting ‘gender apartheid’ under Article 7(1)(k) ensures its recognition as a standalone crime rather than being subsumed under existing but partially differing crimes.

Article 7(1)(k) and ‘Gender Apartheid’

The Rome Statute’s ‘other inhumane acts’ provision serves as a catch-all category for crimes not explicitly enumerated within the statute but comparable in gravity to other crimes against humanity. Forced marriage was successfully prosecuted under this provision in the Ongwen case, setting a precedent for potentially characterizing other conduct as a crime against humanity. For conduct constituting gender apartheid to qualify as an ‘other inhumane act,’ it must meet the elements of the crime.

Situation in Afghanistan

The case in consideration here is the ongoing regime of oppression in Afghanistan. Since the Taliban’s takeover in 2021, they have engaged in institutionalized oppression of women through their “rapid erasure from public life”, constituting the phenomenon of gender apartheid.

From denying education to girls and women to enforcing a severe dress code, the Taliban has issued over 100 decrees interfering in every aspect of public and private life. All women have been compelled to only be seen with a mahram (male escort/guardian). This has further violated their privacy, restricting access to healthcare, legal help, and freedoms. The Ministry of Women’s Affairs has even been rechristened as the Ministry of Vice and Virtue, tasked with enforcing the decrees. In such a manner, the state’s infrastructure has been modified into a tool of systematic oppression. Arbitrary detentions, physical violence, and threats have also become commonplace to combat infractions of the law.

Violations of the rights of women and girls in Afghanistan clearly have an institutional and a gender component. With Afghanistan being a party to the Rome Statute, such systematic and widespread violation of human rights may be prosecuted under Article 7(1)(k).

Satisfying the Elements of Crime

The required context for a crime against humanity (Article 7(1)) is that it must be committed as part of “a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. ‘Attack’ has been interpreted to extend beyond physical violence to even include policies and practices that create and impose inhumane conditions. The Special Rapporteur on Afghanistan has described the Taliban’s treatment of women as an attack on human dignity, further reinforcing its nature. The Taliban’s policies in Afghanistan through its extensive victimhood, organized perpetration, and planned implementation systematically segregate and exclude women. Therefore, the contextual elements of Article 7(1) may be met.

The specific elements of an Article 7(1)(k) crime require the acts to be “of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health”. Scholars have clarified that historically, discrimination like apartheid perpetrated through institutionalized processes has been considered to cause “great suffering and affecting the conscience and dignity of mankind”. Deliberate institutionalized discrimination as seen in Afghanistan would therefore meet the similarity and gravity standard of other crimes against humanity.

Legal Challenges

Though the residual category of Article 7(1)(k) is built on the premise of ejusdem generis, a potential obstacle is the principle of nullem crimen sine lege, which prohibits retroactive criminalization. This means that only acts which were explicitly prohibited by the law at the time of their commission may be considered. However, the Court has clarified that for conduct charged under Article 7(1)(k), the conviction is for the crime of ‘other inhumane acts’ and not any specific sub-category with a different name. Therefore, in the Afghan context, conduct violating existing rights may be sufficient to build a case, even if ‘gender apartheid’ as a separate crime did not exist at the time of such conduct. Furthermore, Article 7(1)(k) also has a well-established legal basis – considered as having attained the status of customary international law, reaffirmed by ICC jurisprudence in cases like Katanga and Ongwen.

However, it must be noted that raising a charge under Article 7(1)(k) is not an easy task. To ensure that the whole spectrum of violations is considered, it may also be effective to cumulatively charge persecution and ‘other inhumane acts’.  In fact, multiple charges may be brought based on the same underlying conduct to ensure no potential violation is left unaddressed.

Conclusion

The international community has a duty to take action to recognize and bring to an end serious breaches of international law. For an institutionalized crime like gender apartheid, no single approach would suffice; instead, an “all tools approach” is required. In this context, the ICC would serve as a viable judicial pathway for prosecution. It would not only hold perpetrators accountable but also establish a precedent for dismantling institutionalized oppression worldwide.

Therefore, to begin the war to end impunity for the crime, effective, proverbial first blood would be proceedings before the ICC on the charge of ‘other inhumane acts’.