Should 'gender apartheid' be an international crime?

Afghan women's rights defenders and civil activists protest to call on the Taliban for the preservation of their achievements and education, in front of the presidential palace in Kabul, Afghanistan September 3, 2021. REUTERS/Stringer

Afghan women's rights defenders and civil activists protest to call on the Taliban for the preservation of their achievements and education, in front of the presidential palace in Kabul, Afghanistan September 3, 2021. REUTERS/Stringer

What’s the context?

Ahead of International Women's Day, here's how women's rights campaigners want to criminalise oppression from Afghanistan to Iran

  • Afghanistan, Iran among those rolling back women's rights
  • Calls grow to criminalise systemic oppression of women
  • New UN draft treaty could help to prosecute perpetrators

LONDON - As women suffer systematic discrimination at the hands of authorities in countries including Afghanistan and Iran, global human rights campaigners are pushing for "gender apartheid" to be recognised as a crime under international law.

If gender apartheid is included in a draft U.N. crimes against humanity treaty, countries that adopt it would be obliged to criminalise it and take action against offenders. 

Under the principle of universal jurisdiction, cases could then be prosecuted in courts anywhere, even if the crimes were committed in a different country.

Ahead of International Women's Day on Friday, here's a look at what is meant by gender apartheid, and what could happen if it were recognised as an international crime.

What is gender apartheid? 

In a report last year, two U.N. experts defined gender apartheid as "inhumane acts committed in the context of an institutionalised regime of systematic oppression and domination by one gender group over any other gender group ... committed with the intention of maintaining that regime".

Persecution because of gender is already recognised as a crime against humanity in the 1998 Rome Statute that set up the International Criminal Court (ICC), alongside persecution on political, racial, national, ethnic or cultural grounds.   

Campaigners say in the case of gender apartheid the persecution is systematic, institutionalised and legalised in order for perpetrators to maintain their grip on power.

"Gender apartheid is a very distinct crime because it essentially requires a system that is upheld through the subjugation of a group," said international human rights lawyer Gissou Nia of the Atlantic Council, a U.S. think-tank.

"The subjugation of that group is key to the regime maintaining its dominance and entrenching its power," she told Context.

Since returning to power in Afghanistan in 2021, the Taliban have restricted women's freedom of movement and barred their access to jobs and education - sometimes as early as age 10 - and dictated what they are allowed to wear.

Jailed Iranian Nobel Peace Prize laureate Narges Mohammadi is among prominent women around the world who have called for gender apartheid to be called a crime.

She said Iranian women had faced decades of gender-based discrimination, legalised by the Islamic Republic.

"Systematically and purposefully, Iranian officials have advanced the subjugation of women, girls and others through the use of all instruments and powers of the state," she said in an article smuggled out of her Tehran jail and published by CNN. 

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Why are calls to recognise gender apartheid as a crime gaining ground now?

The term was first used to describe Taliban rule in Afghanistan in 1999, but calls for gender apartheid to be made a crime gained momentum following the strict Islamic movement's return to power in 2021 and after the death of 22-year-old Kurdish woman Mahsa Amini in Iranian police custody a year later.

Rights groups say gender apartheid should be included in a new crimes against humanity treaty being drawn up at the United Nations.

"This is a generational opportunity to ensure that gender apartheid is explicitly recognised as a crime against humanity and codified in a treaty," said Phil Lynch, executive director of Geneva-based International Service for Human Rights.

A U.N. committee is now in the middle of a two-year discussion of the draft treaty after member states overcame efforts by some countries, led by China and Russia, to stall debate on the agreement, first introduced in 2019.

What effect would recognising gender apartheid as a crime have? 

Making gender apartheid a crime under international law, could lay the groundwork for future prosecutions, but would also be important for victims, rights campaigners said.

"It is important for the victim survivors, it is important for the community to have the full nature and scale of the atrocities recognised for what it is," said human rights lawyer Ewelina Ochab, who is leading an inquiry into gender apartheid in Iran and Afghanistan.

What effect would it have on the governments accused of gender apartheid? 

There are unlikely to be any prosecutions anytime soon because it could take years for any gender apartheid law to be agreed at the U.N. and then ratified by member states.

Suspects could be tried at the ICC, but the United States, China and Russia do not recognise the court, limiting its reach. 

Trials could also take place in countries that adopt the global treaty into their national legislation, said Nia, who is also chair of the Iran Human Rights Documentation Center.

"Let's say France updates the part of their criminal code that has to do with crimes against humanity. From that point forward, if a Taliban official goes to France for some reason they could, in theory, be arrested on charges of gender apartheid."

More broadly, recognising gender apartheid as a crime would act as a deterrent to other states, advocates said. 

"Just because it's happening right now in Iran and Afghanistan, doesn't mean that it's not going to happen somewhere else," said Ochab.

It could also deter other governments from normalising relations with states accused of gender apartheid. International organisations, financial institutions and companies would also be more reluctant to deal with such countries, campaigners said.

(Reporting by Lin Taylor; Editing by Jon Hemming.)

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