Gender Apartheid: AnInternational Crime?
By Christina Cushen
It has been 5 years since the fall of Afghanistan and Taliban fighters took control of the capital, Kabul. Since that day, Afghan women and girls have been targeted and isolated from the rest of the world. The fall of Afghanistan has instigated calls from the international community to declare Gender Apartheid as an international crime as the Taliban hide between the legal gap of gender persecution and gender apartheid.
Existing laws on Gender Persecution
Gender persecution has been deemed an international crime since WW2. The International Criminal Court Policy on the Crime of Gender Persecution has defined gender persecution as a crime against humanity that “target[s] women, men, children and LGBTQI+ people based on their gender to regulate or punish those who are perceived to transgress gender criteria that define “accepted” forms of gender expression manifest in, for example, roles, behaviors, activities, or attributes.” Such crimes regulate every aspect of someone life, by dictating freedom of movement and the very identity and existence of victims.
Since 2021, women and girls in Afghanistan have been impacted by the change in government in various aspects of life such as their freedom of movement, their ability to gain an education or employment, their freedom of expression, as well as experiences of being targeted by the Taliban police. Between the period of September 2021 and April 2023 the Taliban imposed various restrictions which have resulted in limitations on women and girls’ ability to leave the house unaccompanied by a male relative without risk of being arrested by the Taliban.
Crimes Against Humanity
The Taliban’s actions, classified as persecution under the International Criminal Court Rome Statute (Rome statute), must go beyond just being seen as limiting the freedom of women and girls and be deemed a Crime Against Humanity (actions include imprisonment, forced disappearance, deprivation of physical liberty, torture or any other inhumane acts). Most recently, the international Criminal Court made two arrest warrants for Taliban leaders on the grounds that implemented policies have impacted the lives of women and girls so severely that they haveviolated their rights and freedoms.
Concerningly, the court has found that women and girls who do not comply with the Taliban policies are seen to be “allies of girls and women” and these women and girls are targeted by the Taliban as “political opponents”. Therefore, the persecution in Afghanistan against women and girls has prompted many Afghan human rights activists to advocate for recognition of Gender Apartheid to fill the legal gap on women's rights and to achieve accountability against the oppression.
Traditionally, an apartheid is a crime based on race. The International Convention on the Suppression and Punishment of the Crime of Apartheid was established in 1973 and adopted into the Rome Statute, which defined apartheid as “inhumane acts … committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.” Many have argued that the situation in Afghanistan is a gender-based, rather than race-based, form of apartheid.. One Afghan Lawyer at a UN Security Council Meeting stated that “[n]o term better describes the crimes the Taliban are committing against Afghan women and girls.”
Voices of Afghanistan
In a series of Voices of Afghanistan interviews, one woman who remains anonymous highlighted the impact on her freedom since the adoption of the new Taliban Policies. She stated that “For me personally, not being able to work has been incredibly trying. It’s not even just work; it’s the fact that I can’t leave my home without a male escort. And then there’s the gym — I always loved the gym; I always cared about my health and appearance, and the gym nurtured those drives. And now I don’t even have that. Looking back on the freedoms we used to have, it’s like looking at birds with the freedom to fly wherever they choose. ….It feels like we’re living in a prison, locked in our homes.”
Another Afghan girl, Mineh, was 12 when the Taliban took over and has shared her experience with her mother. She stated that one day she went out with her mother to go to the market and they came to the attention of the Taliban as they did not have a male with them. From that experience, she realised she had lost her identity and freedom.
In 2024 Australia, Germany, Canada and the Netherlands filed proceedings with the International Court of Justice (ICJ) in relation to the breach of the Elimination of all forms of Discrimination against Women (CEDAW). Following the filing of this proceeding 22 states have come together and stated that “[t]he women and girls of Afghanistan deserve nothing less than the full enjoyment of their human rights. Afghan women themselves have shown courageous leadership in calling for accountability. We recognize their vital role and heed their call. Afghanistan is responsible under international law for its ongoing gross and systematic violation of numerous obligations under the CEDAW, to which Afghanistan is a State Party.” However, many Afghan women are struggling to understand how these proceedings will assist them against the fight in declaring gender apartheid as an international criminal offence.
While the Taliban hide in this legal gap between gender prosecution and gender apartheid, the international community fights against time to establish a new Convention on Crimes Against Humanity and women around the world are battling for the convention to define Gender Apartheid - not just for Afghan women, but for all women. While some would argue gender persecution is sufficient, current circumstances indicate that this does not cover systematic isolation and exclusion of women by governments and only focuses on the policies. In contrast many jurists and scholars have defined gender apartheid as “legal regimes that systematically segregate and subordinate women and girls, embedding inequality in law itself.”
While the world waits for the execution of the ICC arrest warrants and the ICJ to hear the CEDAW case, many women and girls in Afghanistan are living in silence, not knowing what tomorrow will bring. These arrest warrants and ICJ proceedings are not just about Afghanistan - they aim toprotect the rights and freedoms of future generations of women and girls. If the international community remains silent, then we are normalising and enabling the Taliban’s normalisation of oppression to continue.
Christina has a particular interest in advocating for vulnerable individuals with disabilities and those who are disadvantaged. Her passion for social justice stems from her own life journey as a neurodiverse woman who understands the challenges that society places on people with disabilities. Through her advocacy, Christina aims to challenge societal stigma while promoting the rights of people with disabilities and other marginalised groups.
Christina also brings a breadth of practical experience. She has worked as a hotel receptionist, volunteered at multiple Community Legal Centres, assisted a barrister as a paralegal, and most recently completed a summer clerkship with the Department of Veterans’ Affairs. These experiences have allowed her to engage with a variety of legal matters, broaden her exposure to different areas of law, and further strengthen her passion for advancing social justice within the legal sector.
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