© Nikita Abuya / thegreats.co
ISHR joins the call by women human rights defenders from Afghanistan, activists and legal experts for the international community to recognise and prosecute the crime of gender apartheid.
Women have historically been key actors of change and at the forefront of human rights progress. In societies around the world, women’s movements have enhanced gender equality, secured essential advances in international law and standards, and built communities and societies that are more fair and just.
For this positive evolution to continue, women and girls need equal access to rights and freedoms. When their rights are restricted or completely denied, and discrimination on the basis of gender is institutionalised, then we are talking about gender apartheid.
This is what is happening to women and girls in Afghanistan. Since the country takeover by the Taliban in August 2021, they have been facing a human rights crisis, deprived of the fundamental rights to non-discrimination, education, work, public participation and health. The Taliban has also imposed draconian restrictions on the rights to freedom of expression, association, assembly and movement for women and girls.
“In Afghanistan, unprecedented, systemic attacks on women’s and girls’ rights and the flouting of international obligations are creating gender-based apartheid.”UN Secretary General Antonio Guterres, 12 January 2023.
Alarmed by the situation, ISHR joined a coalition of women and girls from Afghanistan, composed of activists, civil society organisations and legal experts, pushing for the recognition of gender apartheid under international law.
These advocacy efforts are aligned with a global campaign led by Afghan and Iranian human rights defenders and experts.
Find out more about the global campaign
Informed by the expertise and demands of women human rights defenders (WHRDs) from Afghanistan, we want UN experts and States to explicitly and publicly recognise the situation in Afghanistan as amounting to “gender apartheid.”
We consider that such framing would:
Ultimately, we want international law to explicitly recognise gender apartheid as an international crime. We want women and girls to enjoy equal rights and justice. We want perpetrators of this atrocity crime to be prosecuted and held accountable. And we want governments, international financial institutions, multinational companies and other powerful actors to take all necessary steps to prevent and end gender apartheid, wherever it occurs.
In order to achieve our goal and support the coalition’s efforts, we have undertaken a number of actions, focusing on the situation in Afghanistan, one of our advocacy focus countries and where partners have sought our support:
Gender apartheid has been articulated as the systematic segregation of persons based on their gender imposed through law and policy as a governing ideology. In this construct, segregation may be accompanied by the total exclusion of women as is occurring in Taliban Afghanistan, the paradigmatic example of gender apartheid.
Adapted from the international law on racial apartheid, “gender apartheid” emphasises that discrimination has been made by the system of governance itself, such that the aim of government and public policy is to discriminate and oppress.
Through their policies, the de facto authorities in Afghanistan are practising systematic and pervasive discrimination against and oppression of women:
Education: Women and girls are excluded from university and secondary schools. The Taliban are the only governing group in the world to have systematically excluded women and girls from education both in the 21st century.
Employment: Women have been banned from working for national and international non-governmental organisations, and have been dismissed from jobs with the government.
Health: The Taliban have banned birth control and are enforcing the ban by threatening pharmacies and midwives.
Freedom of movement: The Taliban have banned driver’s licences for women, travel longer than 45 miles without a male legal guardian (mahram), and solo taxi rides.
Recreation: Women have been banned from parks, gyms, public baths, and playing sports.
Legal: Taliban spokesmen have suggested dismantling the legal structure of women’s rights, including by abrogating the 2004 constitution and the 2009 Elimination of Violence against Women Law, and their policies represent a de facto rejection of these standards.
Rights: Women engaging in protests against these gender apartheid policies, and sometimes members of their families, face arrest, torture and ill-treatment, and incommunicado detention.
“In Afghanistan, the Taliban continue, aggressively, to seek to erase half of the population from everyday life. Such a system of gender apartheid ruins the development potential of the country.” – UN High Commissioner for Human Rights Volker Türk, 24 May 2023.
“We recommend that the international community develop further normative standards and tools to address the broader phenomenon of gender apartheid as an institutionalised system of discrimination, segregation, humiliation and exclusion of women and girls.” – UN Special Rapporteur on Afghanistan and the Working Group on Discrimination Against Women in Law and Practice, 5 May 2023.
“In Afghanistan, we are rightly concerned about humanitarian aid and frozen assets, but the consequences of a new gender apartheid include women’s employment plummeting sharply since the Taliban takeover.” – UN Women Executive Director Sima Bahous, 8 March 2023.
“As tomorrow you will hold yet another meeting on Afghanistan, I ask you to speak and act forcefully against this gender apartheid and find ways to support Afghan women and girls in their darkest moment.” – UN Women Executive Director Sima Bahous, 7 March 2023.
“The cumulative effect of the [Taliban] restrictions on women and girls has a devastating long term impact on the whole population and it is tantamount to gender apartheid.” – UN Special Rapporteur on the human rights situation in Afghanistan Richard Bennett, 6 March 2023.
“In Afghanistan, unprecedented, systemic attacks on women’s and girls’ rights and the flouting of international obligations are creating gender-based apartheid.” – UN Secretary General Antonio Guterres, 12 January 2023.
Apartheid is an illegal situation to be ended, not an object for “constructive engagement.” The apartheid framework underscores the legal obligations of other states to take action to end this illegal situation and not be complicit, rather than simply making statements denouncing it.
Using an apartheid framework implicates not only the immediate perpetrators but also the international obligations of all states and international actors that interact with them.
Under apartheid law, other States have to take effective measures to suppress apartheid, and have heightened obligations to implement relevant UN resolutions. States must refrain from any action that implies recognition of, or lends support or assistance to, the commission of apartheid. The apartheid framing puts pressure on governments, international organisations, and transnational corporations to avoid engaging with the Taliban in ways that show tolerance for and help perpetuate grave abuses.
The gender apartheid framework complements and can strengthen efforts to prosecute gender persecution at the ICC. It offers a more complete description of country situations like Taliban-controlled Afghanistan.
Just as international law prohibits both racial persecution and racial apartheid, it should do the same with regard to gender persecution and gender apartheid. The persecution approach alone does not adequately implicate the institutionalised and ideological nature of the abuses in question or reflect on the responsibilities of other international actors to respond appropriately.
The definition of persecution helpfully stresses the severity and the discriminatory motivation that characterises Taliban policy toward women. According to Article 7(2)(g) of the Rome Statute, “‘[p]ersecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” Like any crime against humanity, gender persecution occurs within the context of a widespread or systematic attack against a civilian population when there is a “policy to commit such attack.” Unlike other crimes against humanity, persecution requires an additional threshold, it must happen “in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”.
However, the definition of apartheid in Article 7(2)(h) much more fully captures situations like Taliban Afghanistan if one substitutes “gender” for “race” in the following passage: “inhumane acts . . . committed in the context of an institutionalised regime of systematic oppression and domination by one [gender] group over any other [gender] group or groups and committed with the intention of maintaining that regime.” This underscores that domination of women is a core element of the group’s ideology and of its governance.
Hence, the apartheid framework recognises that systemic and institutional positive change will only be possible with a consistent, concerted, principled international response.
Next week, the Human Rights Council will seek to adopt a resolution on the human rights situation in Afghanistan. The context in which this takes place is of deep financial, humanitarian and human rights crises in the country, but also of political negligence by the international community.
A joint report by the Special Rapporteur on the human rights situation in Afghanistan and the Working Group on Discrimination against Women in law and practice found that grave, systematic and institutionalised discrimination against women and girls is at the heart of Taliban ideology and rule.
Women and girls in Afghanistan are facing a human rights crisis, deprived of the fundamental rights to non-discrimination, education, work, public participation and health. The Taliban has also imposed draconian restrictions on the rights to freedom of expression, association, assembly and movement for women and girls. The world's worst women's rights crisis demands an urgent and proportionate response from the UN Human Rights Council, says a coalition of 25 leading NGOs from all world regions.
International community urged by Afghan women to “move from beautiful words and statements, to practice” as the Human Rights Council adopts resolution on the situation of women and girls in Afghanistan.
Civil society groups have welcomed the extension of the mandate of the Special Rapporteur on the human rights situation in Afghanistan, for an additional year. The mandate of the Special Rapporteur remains crucial for ongoing monitoring and documentation of the situation in the country.
One year after the Taliban takeover in Afghanistan, the UN independent experts have affirmed the calls of Afghan civil society that “it is time to rapidly step up efforts to ensure accountability for violations of international human rights law and humanitarian law. Impunity will only lead to further violations and deterioration of the human rights situation in the country.”
