Do We Need New International Law Recognising Gender Apartheid?

Fatemeh Sadeghi

On January 23, 2025, the International Criminal Court (ICC) requested arrest warrants for Taliban leaders for crimes against humanity for gender-based persecution. Following the Taliban regime's forceful takeover of power in 2021, women in Afghanistan have been severely repressed. This reaction by the global community, however, was not only a late response, but also seemed quite inadequate considering the severity of the situation of women and girls and the brutality they experienced under the Taliban regime. 

Since the Taliban reclaimed control of Afghanistan in 2021, "gender apartheid” has become more widely used. The concept has been revived, in part, by Afghan women human rights defenders and feminist allies in response to the severity of the situation for women and girls. Some activists advocate for a more effective response from international law and the states who seem willing to normalize the Taliban despite knowing how they treat women. They demand the  recognition of "gender apartheid" in international law to strengthen mechanisms for accountability and victim protection.

“Apartheid” is an Afrikaans word meaning apartness or separation denoting South African policies of racial segregation between whites and various non-white racial groups from 1948–1990. Racial apartheid became a crime under international law in 1973 in response to the segregation and subjugation of black South Africans by the white ruling class. It is also used by International Human Rights Organizations such as Human Rights Watch to describe institutionalized segregation and discrimination in the Israeli-occupied Palestinian territories.

In Afghanistan today women live under a severe repressive system. The Taliban use intimidation, violence, and methodical edicts to keep women in their homes, invisible, and with no opportunity to live a full life. Women lack the right to education and the Taliban barred women from jobs, public spaces, and education beyond sixth grade. They have limited or no access to health care, no participation in the legal system or decision-making processes, and no access to power. They should appear in public while fully covered. The Taliban also dismantled the entire legal structure of women’s rights, including by abrogating the 2004 constitution. In addition, they banned women and girls playing sports. 

Gender apartheid is a system of governance, based on laws and/or policies, which imposes the systematic segregation of women and men. It seeks to foreground the way in which discrimination has been made within the governance system itself rather than an aberration of it. This radically alters the relationship of the state and the government to the discriminatory practices in question, as it becomes the engine of discrimination.

Gender apartheid is known but not recognized by international law. In both the Apartheid Convention and the Rome Statute, international law defines apartheid as racial oppression and not gender. Activists argue that the dire situation of women in Afghanistan and Iran demands legal recognition of gender apartheid to address a major gap in international law. 

There are, however, some challenges associated with this goal.

The first challenge is to incorporate it into international law. Although racial apartheid is now banned by international law, establishing a similar approach towards gender seems uneasy considering that gender discrimination has never been a major issue in international foreign policy making, as indicated by Nancy Gallagher (2000). As Anne Elizabeth Mayer (2000) pointed out the reason that gender apartheid has not been incorporated into international law is that it has been viewed as a relatively “benign apartheid” because it is not seen to have the same linkage to colonialism as racial apartheid, it is subject to cultural relativist justifications.

For this reason, feminist international lawyers ask whether or not international human rights law is now or has ever been gender inclusive, and how to enhance it in this regard to overcome the divide.

Both the Taliban and the Iranian clerical establishment justify gender apartheid based on Islamic sharia. Consequently, the recognition of gender apartheid by international law is feared to be considered an attack on Muslim doctrine. This approach assumes that gender discrimination is embedded in Muslim culture and ignores the fact that Muslim scholars including feminists have argued for more than three decades that the association between Islam and gender discrimination is about political choices, not simply about religion or culture. For instance, Sedigheh Vasmaghi, the Iranian jurist and Islamic scholar, believes that compulsory hijab has no ground in Islam and that its compulsion is solely tied to the political and economic interests of clerical rule. 

The change in international law and the call for gender apartheid recognition would fill a major gap in the global legal framework. Nevertheless, even if gender apartheid is acknowledged by international law, the challenge is how to implement it. Whenever the state apparatus is organized to enforce systematic inequality and its laws or policies codify discrimination as normative, the international human rights law model does not work. There are also states that prioritize economic and geopolitical interests. Eventually, states like the Taliban would be normalized. This, in turn, would create a negative pattern for states, who would do whatever they please knowing that the international community will not punish them, and they only need to wait long enough to be normalized.

Recent incidents have raised some doubts about the effectiveness of international law. Among them the overnight and tragic seizure of power by the Taliban in Summer 2021, the Gaza war along with the new style of governing in the US are worth mentioning. Although they seem unrelated, there is one thing in common among these incidents: the old rules no longer apply, and new ones are yet to emerge. They demonstrate the limited capacity of international law and the inefficacy of organizations such as the UN to prevent and end wars. In addition, they reveal the increasing potential of sovereign states to circumvent long-established internal and international legal arrangements and covenants. These incidents posed a significant challenge to the rule of law. As a result, international law is now more than ever grappling with authority and influence.

Due to international law limitations in our changing world, social and political mobilization against apartheid, whether in Afghanistan or Gaza, extends beyond international law. In order to dismantle gender apartheid and make it ineffective, bottom-up initiatives seem also necessary.

Fatemeh Sadeghi is senior research fellow at the UCL Institute For Global Prosperity. She is specialized in political thought, gender and politics, feminist theories, and Law and constitutionalism in the Middle East. Her research focuses on decolonizing political thought and feminist theories in the Global South. She studies how Islamic theology and law are used for sociopolitical constructions and piety theories and practices.

References

Gallagher, Nancy. 2000. “The International Campaign Against Gender Apartheid in Afghanistan.” UCLA Journal of International Law and Foreign Affairs 5 (2): 367- 402.

Mayer, Ann Elizabeth. 2000. “A ‘Benign’ Apartheid: How Gender Apartheid Has Been Rationalized.” UCLA Journal of International Law and Foreign Affairs 5 (2): 237–338.