Authored by Suhani Jain, Second-year law student, Integrated Law Course (ILC), Faculty of Law, University of Delhi and Harshit Aggarwal, Second-year law student, Integrated Law Course (ILC), Faculty of Law, University of Delhi

INTRODUCTION

Gender apartheid is a contemporary threat and a reality for millions of women, especially in countries such as Afghanistan and Iran, however, it is a matter of shame for the international community that gender apartheid is not explicitly codified to address the needs of the oppressed. United Nations has explained gender apartheid as occurring within an institutionalized system of systematic discrimination, oppression, and dominance by one group over another based on gender, with the intent of maintaining that regime. This blog aims to examine the scope of gender apartheid in the international fora and the need for codification while also identifying the appropriate avenue for the same. It also articulates as to how gender apartheid is founded on the same foundational principles of apartheid as was seen in the South African history and is thus distinct from gender discrimination and the crime of gender persecution thereby asserting the fact that the current anti-discrimination laws are insufficient to capture the essence of gender apartheid.    

GENDER APARTHEID AND ITS PARALLELS TO RACIAL APARTHEID

As defined by the CESCR, both men and women are equally bestowed with the human rights and have the right to enforce and enjoy them. Gender apartheid fundamentally violates the core principles of international law, just as racial apartheid contravened the very principles prohibiting racial discrimination.

Notable parallels exist between South Africa’s past racial oppression and Taliban-ruled Afghanistan, where systematic denial of education, jobs, and healthcare enforces a subordinate status based on race or gender. Like racial apartheid, gender apartheid is a structured system of governance rooted in laws and policies that enforce systemic segregation between men and women, often depriving women of access to public spaces and key aspects of society. It formalizes the subjugation of women, contravening fundamental principles recognized under international law.

Experts have highlighted the extensive reach of racial apartheid, characterizing it as a “system of gross human rights violations.” The same characterization applies to gender apartheid, as evident in Taliban-ruled Afghanistan, where it is deliberately enforced as a systematic and deeply discriminatory practice.

Some scholars contend that international law prioritises racial discrimination over other forms due to its recognition as a jus cogens norm and differences in treaties. However, this view contradicts the UN Charter, which mandates equal respect for all human rights, regardless of sex or race.

The growing recognition of intersecting marginalisations urges us to reject isolated interpretations of human rights law on racial and sexual discrimination and avoid false competition between them, thus establishing the fact that gender apartheid needs as much recognition as is currently bestowed to the crime of racial apartheid.

GENDER APARTHEID UNDER TALIBAN AND IRANIAN REGIMES

women are being systematically erased from the domain of the public sphere. Taliban’s extremist policies have institutionalised gender-based discrimination, segregation and oppression of women, leaving them robbed of their fundamental rights. Since taking control of Afghanistan in August 2021, the Taliban has enforced a series of more than fifty tyrannous edicts and decrees depriving women of basic human rights, sanctioning violations of international law as well. 

Women in Afghanistan are banned from secondary schools, universities, most jobs, and even leisure spaces like parks and salons. The Sharia-based legal system offers no recourse for domestic abuse or forced marriage, making divorce nearly impossible. Such social, political, educational, and economic subjugation of women through state policies is not just discrimination but a deliberate institutionalised effort amounting to gender apartheid.

A similar situation of gender apartheid in the form of systematic oppression can be seen in Iran as well. This systemic discrimination against women is enforced through Iran’s legal and political framework. It creates a society where women are legally and socially subjugated, amounting to what the experts and activists call gender apartheid. The mandatory hijab laws serve as a visible pillar of this system, enforced and monitored by the morality police and other vigilants who are empowered to arrest, harass and assault women who violate it.

The Iranian Constitution and other legislations stipulate various provisions enforcing the tenets of misogyny and denial of fundamental rights to women. A woman’s testimony carries half the legal value of a man’s and she requires a male guardian’s permission to travel, work, or even file for divorce. Men can have multiple wives, while women face severe restrictions in marriage and inheritance. Moreover, the upcoming Purity and Hijab law aims to intensify control on women.

THE NEED TO CODIFY  GENDER APARTHEID AS A CRIME AGAINST HUMANITY

Gender Apartheid, being a systematic and institutionalised form of oppression over a particular gender, majorly women, calls for it to be recognised as a crime in the international legal landscape. Its recognition is important to tackle such institutionalised regimes of subjugation and suppression. It is concerning that international law has not yet recognised or codified such gender-based oppression.

Despite its gravity, the absence of legal recognition of gender apartheid, which is quite unique in its operation and structure, limits the ability of the international community to establish accountability for such regimes. As a result, there remains a gap in the framework to hold such states and individuals accountable for these oppressive regimes.

Gender apartheid is distinct from all other international crimes in two key ways. First, it can only occur within the structure of a systematically oppressive and dominant institutionalised system. Second, it requires a specific and unique intent to sustain that oppressive regime—an intent that may persist beyond the individuals who originally established it. These defining elements, combined with the broader contextual requirements applicable to all crimes against humanity, set a high threshold for classification.

Codifying gender apartheid amidst such evident regimes of Islamic Republic of Iran and Taliban in Afghanistan is of prime importance. In situations where a state enforces systematic inequality through discriminatory laws or policies, international oversight and global involvement are essential to achieve the fundamental objectives of international law. Standard anti-discrimination laws are inadequate because they mainly address individual acts of discrimination, rather than widespread or large-scale systemic discrimination.

It is critical that now more than ever, gender apartheid be officially recognized as a Crime Against Humanity (CAH) due to its widespread prevalence in countries like Afghanistan and Iran, where women’s lives are systemically impacted and restricted.

CODIFYING GENDER APARTHEID UNDER THE ROME STATUTE

The Rome Statute is the perfect avenue for codifying the crime of gender apartheid as a CAH. According to the preamble of the Rome Statute, the International Criminal Court seeks to eliminate impunity and prosecute those responsible for CAH while being mindful that for centuries, women across the globe have been facing unimaginable atrocities and thus, international cooperation is necessary. 

Under the Rome Statute, CAH consists of any of the acts specifically listed in Article 7. It is well known that apartheid defined in the traditional context of race as was seen in South Africa, is already a part of Article 7 and is classified as a CAH, thus opening up the doors for gender apartheid as a similar concept to be recognised under this Article.

It can be codified in three ways in Rome statute: first, by recognising and adding it as a distinct clause under Article 7; second, by amending the definition of apartheid and widening its horizons to also include gender apartheid within the definition by omitting the word racial explicitly or adding the word gender; and third, by encompassing it under the scope of Article 7(1)(k), which is a residuary clause.   

The need to codify gender apartheid and the fact that it is founded on similar foundational principles of apartheid is well enunciated in the sections above and thus, the first two possible ways of incorporating gender apartheid as a crime do not require an extensive explanation. However, since amendment is in itself a mammoth task, there must be an alternative measure to prosecute for the crime of gender apartheid and Article 7(1)(k) serves as the perfect opportunity for the legal community to articulate and expand the scope of this Article.

The very purpose of incorporating a residuary clause in the Statute was to indicate that the crimes explicitly listed under the purview of Article 7 are not exhaustive. Eminent legal scholars have articulated that no matter how meticulously a list is crafted to encompass every form of suffering inflicted, it will always fall short of anticipating the boundless ingenuity of future tormentors driven by their cruel instincts. Paradoxically, the more comprehensive and precise such a list strives to be, the more it risks becoming restrictive.

For an act or omission to qualify as an inhumane act under this provision, it must meet the following criteria: (i) it must be of similar gravity to the offenses listed in Article 7; (ii) it must have caused severe mental or physical suffering, injury, or a serious violation of human dignity; and (iii) it must be done with the intent to inflict such suffering or violate human dignity, or with the awareness that these consequences were likely.

Considering the elements of Article 7(1)(k), it is evident that the regime of subjugation that entails the spirit of gender apartheid is more than enough to satisfy the essentials required under this Article. It is severe enough to be explicitly comparable to the crime of apartheid, striking at the core of human dignity and depriving the oppressed of their fundamental rights. The intent as can be seen in the context of the real world examples in Afghanistan and Iran, is to cause suffering and maintain the regime indefinitely.   

CAH aims to protect fundamental laws safeguarding individual rights as political actors and collective existence in society. As international crimes, they uphold international peace, security, and individual rights, including life, freedom, autonomy, and human dignity. Its scope is therefore also extended to the crime of gender apartheid and thus it must be recognised as a CAH whether as a distinct crime or under the scope of Art 7(1)(k) or rather must be adopted within the definition of apartheid itself by amending the definition of the same outlined in Article 7(2)(h).

CONCLUSION

After decades of oppression and tyranny, the international fora recognised the crime of apartheid as a blatant violation of the principles of international law. It was codified to bear a deterrent effect, ultimately contributing to the end of the apartheid regime in South Africa. Today, the world faces a similar question when confronted with the systematic subjugation of women under the regimes in Afghanistan and Iran.

The pressing issue is whether the international community can afford to ignore the plight of women for yet another few decades. The answer is a resounding no—gender apartheid demands urgent action and formal legal recognition. The failure to explicitly codify it as a CAH under international law leaves a critical gap in ensuring accountability and justice. The Rome Statute provides an ideal legal framework to address this in international law. Justice delayed is justice denied, and history will judge the international community by its response to this ongoing atrocity.