Against Gender Apartheid

On the occasion of International Women’s Day on 8 March this year, the international institutions involved in the defense of human rights took care to confirm their support for the Afghan women oppressed by the Taliban regime, using the term “gender apartheid” to define the discrimination that exists in Afghanistan and Iran.

But the former independent Afghan parliamentarian Belquis Roshan, in the meeting with the Italian Coordination in support of Afghan women which took place during her visit to Italy in April, recommended not to let “the battle for the recognition of gender apartheid be stolen by international organizations and not even by the UN”. Why this stance? What does he mean?

For a couple of years the Taliban, by prohibiting education for girls and work for women and giving rise to an increasingly misogynistic and violent succession of prohibitions and limitations, have clearly shown not only that they have not changed compared to their past government – as the United States had wanted to believe in the context of the 2020 Doha Agreements – but rather to make discrimination against women a key aspect of their domination. From many quarters we then began to talk about “gender apartheid” and the opportunity for it to be recognized by international legislation as a crime against humanity.

Given that the possibility of obtaining respect for women’s rights from the Taliban in exchange for economic aid appears increasingly illusory, the idea is to put pressure on them through the courts and international law.

Systematic and institutionalized segregation of women

If all activists and supporters of Afghan women’s rights agree in defining the Taliban’s system of oppression as “gender apartheid” since we are not faced with occasional violations but with the systematic and institutionalized segregation of women and the deprivation of their rights precisely as a gender considered inferior, there are different approaches that can be taken to address the problem.

Given the extent and severity of their oppression of women, the Taliban could already be prosecuted by the International Criminal Court (ICC) for the crime of gender persecution. The Rome Statute of the ICC in fact considers the crime of gender persecution as a crime against humanity, where “persecution” occurs with “the intentional and serious deprivation of fundamental rights due to the identity of the group or community” and by “gender” we mean “the two sexes, male and female, in the context of society”. It therefore captures the specificity of this crime, but as individual acts carried out on individuals, not as actions of a government knowingly and systematically working against a group as a distinct gender.

As many experts argue, however, the definition of gender persecution does not fully capture the nature of the oppression suffered by women and girls in Afghanistan and Iran. The crime of apartheid, however, addresses the deeper causes. The International Convention on the Suppression and Punishment of Apartheid defines it as racial segregation and discrimination in the context of an institutionalized regime of domination by one racial group over any other, implemented with the intention of maintaining that regime.

Therefore, in the crime of apartheid the responsibility of the State is assumed, but gender is not considered as a reason for discrimination, only ethnicity. On the other hand, the ICC can only judge and condemn individual people, in accordance with international criminal law which holds individuals responsible, even for group crimes, as was the case for example in the Nuremberg trial. The ICC has been investigating the atrocities committed in Afghanistan since 2006, examining the crimes committed by all parties involved in the war of the twenty-year occupation, starting with the United States and its allies. And which, however, could also include the crimes committed by the Taliban since 2021. A very long process, too long according to some activists.

To speed up the process, the ICC then chose to remove the previous crimes in order to focus only on those of the Taliban, arousing protests from those who disagree with “forgetting” Western crimes. However, to date, the Court Prosecutor has not filed any charges against the Taliban, nor are there any proceedings initiated by States at the International Court of Justice.

Despite the natural slowness of the proceedings, Human Rights Watch, Amnesty International and the International Commission of Jurists are among those who believe that the Prosecutor of the ICC should add the crime of gender persecution to the ongoing investigation and that States, through universal jurisdiction or other judicial avenues, should try Taliban suspects of crimes under international law.

Bring Taliban abuses to judicial review

On the other hand, the International Court of Justice is responsible for resolving disputes between states on issues of international law. This Court can hear cases brought by a state against another member country for violations of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (Cedaw), to which Afghanistan is also a party. The request of a single state would be enough to subject the Taliban’s abuses to judicial control, as South Africa recently did against Israel regarding the “plausible genocide” perpetrated in Gaza.

So right away a state party to Cedaw could take the Taliban to court and the International Court of Justice could play an important role. But no one has so far taken such a step, although everyone declares themselves worried every day about the situation of women in Afghanistan.

The differences are not few. For example, the United States has not ratified the Convention because Democrats and Republicans disagree on the costs of the treaty and do not share the same standards on the status of women. Furthermore, Cedaw has been criticized for its heteronormative perspective on gender and sexuality and for its lack of full recognition of those who do not fit traditional gender identities.

Others, however, aim to have gender apartheid recognized at an international legislative level as a new crime against humanity. A revision of the Crimes Against Humanity Treaty is currently being considered by the United Nations and so some are calling for gender apartheid to be included among these. While in this period a specific commission was established at the UN with the task of reviewing the criteria with which the prevention and prosecution of crimes against humanity is defined. The rights movement is being pressured and urged from many quarters to take advantage of this institutional window to obtain modification of the Treaty.

This third path is preferred and strongly supported by international institutions and by the expatriate Afghan women who work within them, often used to show the “good” and democratic side of Western countries when they want to soften their fundamentally aggressive policies, to maintain the confident and dormant public opinion.

In the lead is the UN Secretary General, António Guterres, who since 2022 has declared that the oppression that is raging against women in Afghanistan must be considered gender apartheid because its nature is not occasional and limited but structural, declaredly founding the ideology of the Taliban, who keep a part of the population in a state of inferiority, as a gender, thus responding to all the characteristics necessary to define apartheid as such.

The United Nations Working Group on Discrimination against Women also voted on 20 February 2024 for the inclusion of these actions as crimes against humanity under Article 2 of the draft revision of the Treaty on Prevention and Prevention. punishment of crimes against humanity currently under consideration by the Sixth Committee of the United Nations General Assembly.

Already in September 2023, the Remarks provided by the UN Under-Secretary-General and the UN Executive Director Sima Bahous at the UN Security Council meeting on the situation in Afghanistan called on governments “to lend full support to an intergovernmental process to explicitly codify the ‘gender apartheid in international law’.

On March 14, the European Parliament then stated that “the Taliban’s application of shari’a law and the exclusion of women and girls from public life amount to gender persecution and apartheid” and that “the demands of Afghan civil society to hold the authorities de facto accountable for their actions, an investigation by the International Criminal Court, the establishment of an independent UN investigative mechanism and the expansion of EU restrictive measures”. In March, Italy also intervened in defense of Afghan women, in the event organized by the Permanent Representation of Italy to the UN “No Poverty eradication without the empowerment of women and girls – next steps for the future of Afghanistan”, but not it went beyond generic support and economic help.

In January a group of British parliamentarians launched an investigation into apartheid, the first of its kind in the world, to analyze the situation of women and girls in Iran and Afghanistan in relation to existing legal definitions of international crimes and the possibilities of incorporating it into the existing international legal framework. Then giving rise to a report that was presented to the United Kingdom Parliament on 4 March 2024 which expressly says that “this serious issue can only be described as the crime of apartheid: by replacing ‘race’ with ‘gender’, it becomes evident that the legal definition reflects the situation of women and girls in Afghanistan and Iran.”

The “End gender apartheid today” campaign was perhaps the first request expressly addressed to governments for the recognition of this crime. Dozens of eminent jurists, scholars and civil society representatives from around the world have published a letter urging United Nations member states to codify gender apartheid in the draft Convention on Crimes against Humanity.

The US Atlantic Council and the Global Justice Center also published a joint letter and legal brief in October 2023 urging UN Member States to specifically codify this crime in the draft Crimes Against Human Rights Treaty. humanity currently being examined by the Sixth Committee of the United Nations General Assembly”. Request reiterated by the Atlantic Council on 8 March this year and again recently on 14 March.

The International Peace Institute (IPI) – founded by the UN – organized a panel on the topic. Among those who spoke, Dorothy Estrada-Tanck identified the explicit codification of gender apartheid in Afghanistan as a priority for the United Nations Working Group on Discrimination against Women and Girls, of which she is president. “Recognizing and codifying this as a crime against humanity is necessary to accurately name and understand the full scope of the elements of this regime and, above all, to trigger action by the international community,” she said. The event was co-sponsored by the Global justice center, Rawadari, the Georgetown institute for women, Peace and security and the permanent missions of Mexico and Malta.

The International Federation for Human Rights, made up of human rights defenders from all over the world, officially joined the campaign by adopting a resolution to recognize “gender apartheid”.

The Alliance for Human Rights in Afghanistan, which includes Amnesty International, Front Line Defenders, Freedom House, Freedom Now, Human Rights Watch, Madre, World Organization against Torture (OMCT), the International Federation for Human Rights (FIDH) and the Women’s International League for Peace and Freedom (WILPF), expresses more general requests but still urges that responsibilities be established through “mechanisms that include the International Criminal Court and the International Court of Justice”.

As well as the United Nations Human Rights Council meeting in its session on 22 February 2024, which in the Report states that the situation of Afghan women can amount to gender apartheid and recommends that States “support international mechanisms of investigation and accountability and initiate or collaborate with accountability processes in national jurisdictions for past and current violations by all parties to the conflict in Afghanistan, including with respect to gender justice and attacks on ethnic and religious communities.”

Will opportunistic considerations prevail?

As can be seen, there are many authoritative voices pushing in the direction of identifying gender apartheid, and those reported are only a part. This could lead one to think that the road is downhill, given the large number of countries in the world that define themselves as democratic or that are in any case against the ultra-reactionary and ultra-fundamentalist policies of the Taliban.

But is not so. In the end, it is the individual states that decide within the UN, obviously including the USA and the Western allies, i.e. those who first occupied Afghanistan and then were the promoters of the agreement that brought the Taliban back to power because considered more “reliable” than the governments they themselves created and supported over the twenty years of occupation.

While they maintain that Afghan women should not be abandoned, it is the UN itself that is encouraging a process of rapprochement towards the Taliban government with the declared intent of achieving its complete recognition in the shortest possible time, as demonstrated by the independent evaluation on Afghanistan which led to the Doha Forum last February and subsequent meetings.

Therefore there is the risk that opportunistic considerations will prevail to antagonize all those countries, and there are many, which due to cultural or religious affinity with the Taliban or for economic-political interests in the region do not want the isolation of Afghanistan and the consequent limitation commercial and political contacts; those who have in fact already more or less openly recognized the Taliban government and therefore prefer not to take a clear position potentially fraught with negative reactions for them. How credible can they be in their aim to condemn the Taliban?

Of course, the recognition of gender apartheid as a crime against humanity would not in itself be sufficient to initiate the indictment of the Taliban because in any case, as mentioned, the action of a State is essential to set the international tribunal in motion , but it would be an enormous help for all those organizations that like Cisda and the Euro-Afghan Coalition support women and Afghan organizations like the Revolutionary Association of Women of Afghanistan (Rawa) that courageously oppose the Taliban on a daily basis and ask democratic states not to recognize their government.

The opening of an international trial against the Taliban government on charges of gender apartheid would be a long process that would not have immediate effects on the lives of Afghan women, but it would bring them justice and strengthen their resistance.

The battles to increase democracy and for the recognition of rights at an institutional and legislative level have never been won thanks to the institutions themselves but to the push they received from below, from those who were pushing to obtain changes.

“Let’s not let this battle tear us away”

As Belquis Roshan said, the recognition that there is a system of gender apartheid in Afghanistan is a very important fight and we must not let it be taken away from us by professional politicians. And not even by the women who were political leaders in Afghanistan, sharing government responsibilities, and who now, having fled after the arrival of the Taliban, filling their mouths with words of democracy, have recycled themselves in the West as representatives of the people and women who remained instead to suffer in the country. Women who appear in the media and who are literally used in official international meetings when leaders and the most powerful states need to show that they also listen to the civilian population and not just the Taliban.

The women who resist in Afghanistan and who every day have to face the attacks of the Taliban decrees are the true representatives of themselves. It is to them that we must give voice and to those who continue, even from exile, to get busy without being swallowed up by the institutions and apparatuses that give them greater prestige. It is thanks to the resistance and resilience of Afghan women that the topic of gender apartheid is now on the agenda. We cannot let those who brought the war to Afghanistan and then wanted to leave the country in the hands of the Taliban make a flag of it.