The long road to recognizing gender apartheid as a crime against humanity

In Iran, in court, a woman's testimony is worth half that of a man.

In Afghanistan, secondary schools and universities have closed their doors to Afghan women.

The list of systemic discrimination or gender apartheid, particularly in these two countries, is long.

To succeed in putting an end to segregation based on gender, the End Gender Apartheid movement launched an appeal a year ago which seems to have found an echo at the United Nations.

“Gender apartheid is not simply a theoretical possibility or legal construct, but a real threat and reality experienced by millions of women and girls around the world – a reality that is currently not explicitly codified in international law", declared on February 20 the experts of the UN working group on discrimination against women and girls, particularly concerned by the situation in Afghanistan.

The Nobel Peace Prize winner, Iranian Narges Mohammadi, has also joined a collective of Afghan and Iranian activists and personalities - international jurists and members of society - who have called for global recognition of the crime of gender apartheid.

The initiative is also supported by former American Secretary of State Hillary Clinton, the Nobel Peace Prize winner of Afghan origin Malala Yousafzai and the American icon of feminism Gloria Steinem.

Incarcerated since 2021, activist Narges Mohammadi was able to make her voice heard in a letter secretly taken from her cell at the end of January.

Like the End Gender Apartheid collective, experts from the UN working group on discrimination against women and girls called for sexist apartheid to be included as a crime against humanity in one of the articles of the a draft treaty on crimes against humanity, currently being examined by the Sixth Committee of the United Nations General Assembly.

"We have treaties for genocide and treaties for war crimes. These are the Genocide Convention and the Geneva Conventions. But to date there is no specific treaty on crimes against humanity,” explains Alyssa Yamamoto, legal advisor for the American Council think tank.

Positive signals at the UN

Specialist jurists from the American Council, which relays the demand for End Gender Apartheid, say they are satisfied with the progress.

Five of the thirty states forming the UN commission "specifically mentioned the inclusion of sexist apartheid in the potential treaty", reports Alyssa Yamamoto.

These are Australia, Brazil, Malta, Mexico and the United States.

Another majority "raised the need to include this approach", meaning these countries will not object to recording gender apartheid as a crime against humanity.

“Overall, this is a very positive signal from an interregional group of states that have expressed support for this proposal,” said Alyssa Yamamoto.

pic.twitter.com/yAa8aUOa8T

— End Gender Apartheid (@EGACampaign) January 16, 2024

One disappointment, however, she underlines: France is not one of the countries requesting the addition of the crime of gender apartheid to international law.

"We hope that in April, when the commission's discussions resume, she will express her public support and join the initial group of states that have already raised this issue. Particularly given her broader commitment to women, peace and security around the world.

The UN discussions are only at an early stage.

"Any treaty process takes years. We don't expect it to happen overnight, but I think we are convinced that we should move forward and recalibrate our international legal framework to reflect the experiences of the victims and survivors,” concedes Alyssa Yamamoto.

It is only in October that the commission will have to decide whether to submit the potential treaty to the General Assembly, or whether it prefers that it be studied at a diplomatic conference, in order to result in an international convention, serving as a legal basis. to initiate proceedings.

The conditions for participation in this diplomatic conference will be decided by the commission also in October.

A more judicious choice, considering the countries which could object during the General Assembly to seeing gender apartheid written in black and white as a crime against humanity.

Iran could thus speak out against this text, without being able to block it. 

“We are already incapable of applying existing texts”

In the opinion of several specialists who work on crimes prosecuted by the International Criminal Court (ICC), we must remain cautious.

Céline Bardet, a jurist in international law, specializing in war crimes and international criminal justice, welcomes an initiative that is “important for the symbol”, while being wary of the slowness of UN time.

“The fact of targeting a population, for example that of women, and depriving them of their rights, we can already qualify today as a crime against humanity. What is happening in Afghanistan is a crime of persecution based on gender and it is entirely prosecutable,” she believes.

An opinion shared by Me Julie Goffin, lawyer at the Brussels bar and at the ICC.

She does not see the point of creating new incriminations “when we are already incapable of applying existing texts”.

"For me, there are already all the legal bases to continue on these grounds. I wonder if the diplomats are not trying to reassure themselves by saying that they are discussing things to try to feel a little less guilty in relation to everything that is not done,” she adds.

Also read: The Taliban soon accused of “crime against humanity” against Afghan women?

The UN's work to develop a convention on crimes against humanity is for Céline Bardet a form of "political commitment" on the part of States.

“From experience, we must seek to be as effective as possible so that the situation changes for the victims, whether in Palestine, Afghanistan, Iran… If there are no prosecutions, there is no point " adds Me Goffin. 

Prosecuting States for Gender Apartheid

Adding the crime of gender apartheid to international law would allow victims and survivors to attack states, not just individuals, as may currently be the case before the ICC.

Two countries could be clearly targeted for prosecution: Iran and Afghanistan.

If indeed they ratify the future UN convention.

However, nothing is less certain.

Iran does not even recognize the ICC.

Céline Bardet, however, recalls a recent decision by this court based in The Hague which opens the way to prosecutions against political figures even though their country is not a member of the ICC.

This is the case of Russia, whose President Vladimir Putin is wanted for the war crime of “illegal deportation” of Ukrainian children since the issuance of an arrest warrant against him in March 2023. And the Listing gender apartheid as a crime against humanity could constitute a new legal breach into which those who fight against segregation based on gender can hope to fall.

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