Confronting Gender Apartheid: The Case for its Inclusion in the Crimes Against Humanity Treaty

By: Skylar Blumenauer 

“Despite universal promises made at the highest levels … gender equality remains an unfinished agenda for the twenty-first century, a century that should enter history as the period that ended gender apartheid.” 

– Babatunde Osotimehin

The failure to effectively prosecute crimes against humanity—and the lack of a treaty specifically enumerating state obligation to prevent and punish them—has long exposed structural weaknesses and impunity gaps in the international criminal law framework. These gaps stand in stark contrast to widely ratified treaties like the Geneva Conventions (1949), the Convention against Torture (1984), and the Genocide Convention (1948) that impose concrete obligations on states to prevent and punish war crimes. Crimes against humanity as a concept is traced back to the Nuremberg and Tokyo tribunals, but it has defined crimes as early as the trans-Atlantic slave trade (Radhakrishnan and Sadat, 2026). However, after two years of consideration and debate, the United Nations members met in January 2026 to begin negotiating a long-overdue treaty to address crimes against humanity (UNGA Res 79/122, 2024).

At the forefront of the discussions surrounding the treaty are forceful calls to define and codify gender apartheid as a crime against humanity. While uncodified and used largely in the political dimension, gender apartheid is understood to be a systematic regime of oppression built on the domination of one gender over another. Proponents argue that codification is necessary to confront systems of entrenched, institutionalized gender segregation and domination that existing international legal categories fail to fully address (End Gender Apartheid Campaign, 2024). Crimes against humanity have always had profound gendered impacts, yet the legal architecture established under the Rome Statute—the founding treaty of the International Criminal Court—seldom accounted for the ways that systemic discrimination, exclusion, and state-imposed control over women’s lives can rise to the level of international criminality. For example, experts argue that the crime of gender persecution cannot fully address or punish the structural, state-organized systems of entrenched domination that exist in Afghanistan today (Amnesty International, 2024). Codifying gender apartheid as a crime against humanity in the forthcoming treaty is an essential step toward remedying the structural failures of the current international legal system to fully guarantee women’s rights and prosecute crimes committed on the basis of gender.

Proposals for Inclusion

While the treaty will not be negotiated until 2028 and 2029, states and civil society organizations have until April 30, 2026 to submit proposals to the International International Law Commission's 2019 Draft articles on the Prevention and Punishment of Crimes Against Humanity. Malta is the only state that has enumerated a specific definition for the crime of gender apartheid, but Afghanistan (under a non-Taliban representative), Australia, Austria, Mexico, the Philippines, Portugal, and Spain have expressed openness to its codification (Mehran et al., 2026).

Gender apartheid can be understood as analogous to racial apartheid, a system of governance that imposes systematic segregation of women and men through the systematic exclusion of women from public spaces. There are three main proposals for codifying gender apartheid into international law: (1) creating a separate crime of gender apartheid in addition to the existing crime of apartheid, (2) expanding the existing apartheid definition to include “gender groups” as a classifier, and (3) aligning the existing apartheid definition to persecution-based group protections (for example, “based on race or gender”) (Davis & Anwar, 2025a). The easiest route for gaining consensus amongst stark opponents would be to adapt the current definition of apartheid. 

The Case for Inclusion

The concept of apartheid on the grounds of gender was first articulated in the 1990s to describe the subjugation and systematic exclusion of Afghani women and girls by the Taliban. Human rights experts observed that neither international criminal legal systems, nor human rights instruments like the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), fully captured the structural and pervasive nature of the Taliban’s regime. Calls to recognize gender apartheid have reignited since the Taliban reclaimed control of Afghanistan in 2021 (Amnesty International, 2024).

South African women’s rights advocates have strongly supported contemporary calls to codify gender apartheid, highlighting that the post-apartheid transitional justice efforts largely overlooked the harms that Black women faced. Apartheid is more than just a legal term for South Africans—it is a lived experience of systematic oppression based on their identity. For that reason, South African women argue that introducing gender apartheid without fully acknowledging the gendered dimensions of the South African apartheid risks sidelining their unresolved legacy of gender-based violence and injustice (Davis and Anwar, 2025b). They advocate for the gender dimension to be included in the existing definition, as opposed to creating a new crime. For them, recognition of past and present cases of gender apartheid is crucial. 

Furthermore, gender persecution, like apartheid, is codified in the Rome Statute of the International Criminal Court as a crime against humanity. The specific requirements of gender persecution are intent to discriminate on the basis of one’s gender alongside the occurrence of a crime (Rome Statute, Art. 7(1)(h)). Gender persecution, however, fails to adequately implicate institutionalized systems of domination. It overlooks the architecture, intent, and long-term state of a government that is engineered around gender hierarchies. Moreover, persecution has been understood to only happen in the short term and within the framework of another crime, which must occur first. Apartheid systems, on the other hand, are committed as part of an intentionally widespread or systematic attack by a state over a long duration. Consequently, gender persecution does not fully capture the entirety of crimes committed in systems of completely entrenched gender domination. 

In February 2026, MADRE, an international human rights organization, and the Foundation for Human Rights held a two-day convening in Johannesburg, South Africa to consider proposals for a more inclusive definition of apartheid within the new treaty. Participants—including Palestinian, South African, and Afghan women—argued that creating a separate definition or using the phrasing “gender group” risks excluding contemporary victims of apartheid-like systems of domination (Jaber, 2026a). Otherwise, women and girls are centered as the primary victims (at the exclusion of LGBTQ+ persons or men), and Muslim men are cast as the primary perpetrators. Additionally, implementing race and gender as stable identity categories loses consideration of the intersection of the two as mutually reinforcing hierarchies (Jaber, 2026b). The participants ultimately decided that inclusion in the new treaty should remain grounded in apartheid’s colonial roots—as experienced in South Africa—and recognize race and gender as social constructs (Jaber, 2026a). The proposed definition is as follows:

“The crime of apartheid means inhumane acts … committed in the context of an institutionalized regime of systematic oppression and domination by one group over any other group or groups, on race, gender, or other grounds of colonial discrimination, and committed with the intention of maintaining that regime.” (emphasis added) (Jaber, 2026a)

Conclusion

Without formally recognizing gender apartheid as a crime under apartheid law, entrenched systems of systematic oppression—such as those in Iran and Afghanistan—will continue to evade meaningful accountability. Codifying gender apartheid provides the legal framework necessary to confront these structural injustices and hold both state and individual actors accountable under international law. The forthcoming crimes against humanity treaty represents the most viable and forward-looking avenue for its codification under the umbrella of the crime of apartheid. Recognizing gender apartheid as a prosecutable crime would underscore that systematic subordination cannot be justified under international law and signal genuine progress in global women’s rights protection. 

Sources:

Amnesty International. “Global: Gender apartheid must be recognized as a crime under international law.” June 17, 2024. https://www.amnesty.org/en/latest/news/2024/06/gender-apartheid-must-be-recognized-international-law.

Davis, Lisa, and Kirby Anwar. “Race, Gender and Apartheid in the Draft CAH Treaty: South Africa’s Role.” Opinio Juris, July 18, 2025b. https://opiniojuris.org/2025/07/18/race-gender-and-apartheid-in-the-draft-cah-treaty-south-africas-role

Davis, Lisa, and Kirby Anwar. “Three Definitions, One Choice: Defining Gender Apartheid in the Draft Crimes Against Humanity Treaty.” Opinio Juris, February 12, 2025a. https://opiniojuris.org/2025/12/02/three-definitions-one-choice-defining-gender-apartheid-in-the-draft-crimes-against-humanity-treaty//

End Gender Apartheid Campaign. Amending the Crime Against Humanity of Apartheid to Recognize and Encompass Gender Apartheid: Legal Brief. August 12, 2024.

International Criminal Court. Rome Statute of the International Criminal Court. 

Jaber, Nora. “Redefining apartheid in the Crimes against Humanity Treaty: Towards inclusive pathways forward.” OpinioJuris. April 20, 2026a. https://opiniojuris.org/2026/04/20/redefining-apartheid-in-the-crimes-against-humanity-treaty-towards-inclusive-pathways-forward/.

Jaber, Nora. “Gender Apartheid and the Limits of Criminalisation.” EJIL: Talk! January 12, 2026b. https://www.ejiltalk.org/gender-apartheid-and-the-limits-of-criminalisation/.

Mehran, Metra et al. “Taking Stock of the Proposal to Codify Gender Apartheid in the Crimes against Humanity Convention.” OpinioJuris. March 10, 2026. https://opiniojuris.org/2026/03/10/taking-stock-of-the-proposal-to-codify-gender-apartheid-in-the-crimes-against-humanity-convention/.

Radhakrishnan, Akila and Leila Nadya Sadat. “Serious Work Begins to Create a Treaty on Crimes Against Humanity.” PassBlue January 22, 2026. https://passblue.com/2026/01/22/serious-work-begins-to-create-a-treaty-on-crimes-against-humanity/.

United Nations General Assembly. Crimes Against Humanity. A/RES/79/122, December 18, 2024.