RECOGNISING “ GENDER APARTHEID” IN INTERNATIONAL LAW : A STEP TOWARD PROTECTING WOMEN’S RIGHTS

During conflicts, vulnerable groups are among the first to be abused. Throughout human history, it appears that war-time abuses of these groups have existed for a long time. In regard to modern international criminal law records, some of these abuses were documented during World War II. As of today, across the globe, gender-based crimes are committed during conflicts. To put an end to this, importance is given to all efforts to reinforce prosecution. The reason why there is no consistency in the evolution of gender crimes is the issue of lack of documentation when they happen, as a result, perpetrators are hardly ever held accountable for these crimes. Though, their crimes are often excluded from consideration by international tribunals. International criminal jurisprudence is silent on gender persecution, despite international law's decades-long recognition of it as a crime.

It is essential to give a definition of gender and apartheid and to understand the nuances of it in international criminal law. Gender refers to the characteristics of women, men, girls, and boys that are socially constructed. This includes norms, behaviors, and roles associated with being a woman, man, girl, or boy, as well as relationships with each other. As a social construct, gender varies from society to society and can change over time. However, in this paper, we will focus on a specific crime, which is gender apartheid.

In this context, it is crucial to examine the concept of apartheid and its relation to gender. Firstly, it is important to understand what apartheid is and then to elaborate on gender apartheid. The concept of gender apartheid derives from the definition of apartheid.  Apartheid means fundamental discrimination that completely excludes a person or group of people from humanity and equality.  This problem was first officially recognized in the case of South Africa. At the time, the International Convention on the Suppression and Punishment of the Crime of Apartheid was adopted by the UN General Assembly for South Africa, and many countries signed it. This Convention mentions ethnic origin and race, as it was conceived in relation to the apartheid that existed in South Africa. The word "gender" however, does not appear in it.

Building on this understanding, the concept of gender apartheid is closely related to the experiences of women in countries where they face systematic oppression. One of the current examples is the situation in Iran. Here, we can observe that the status of women has not changed: no law was passed in favour of women. The situation is still discriminatory. Poverty that has occurred in Iran affects women more than men, and we see women who are heads of households living and suffering in very difficult situations without the state or any of the governments paying any attention. This situation needs to be taken under control, as gender apartheid is not officially recognized under international law, there is a need to amend the Convention on the Elimination of All Forms of Discrimination against Women. The Convention itself states that any of the countries that have signed it can write a letter to the UN Secretary General and ask for the word "gender" to be added.

Furthermore, the lack of recognition of gender apartheid as a crime has significant implications for the prosecution of perpetrators. Small steps towards recognition were shown by the "Woman Life Freedom" movement, the UN Independent International Fact-Finding Mission on the Islamic Republic of Iran, established in November 2022 by the Human Rights Council, ruled that the Iranian regime's repression of demonstrators, particularly women, constituted a crime against humanity.  For full recognition, countries part of the ICC should recognize it. However, as we can observe, countries in support of the Iranian government will not recognize it.

In addition to the challenges posed by the lack of recognition, there is also a need to address the issue of impunity for crimes against women. There is no doubt that sexual and gender minorities must have the same rights as the rest of society. The important point is to understand that apartheid means discrimination of any kind, whether it is based on gender or not.

Meanwhile, the international community has been working to address the issue of crimes against humanity, including gender persecution. However, the incomplete legal recognition of gender apartheid in international criminal law has unfortunately led it to be labeled as the “forgotten international crime”.

I/ INCOMPLETE LEGAL RECOGNITION OF GENDER APARTHEID: “ THE FORGOTTEN INTERNATIONAL CRIME”

Today, these offenses are being committed against civilians in numerous countries. But unlike most other international crimes—genocide, war crimes, torture, enforced disappearances, apartheid—there has been no treaty specifically enumerating the obligations of states to prevent and punish crimes against humanity, along with their role in cooperating with other treaty member states to that end.

Notably, the situation in Afghanistan is a stark example of systematic oppression, with the Taliban's actions amounting to crimes against humanity, including gender persecution and violations of the right to education and healthcare. The international community has failed to address impunity for ongoing and past atrocities, despite a deepening humanitarian and human rights crisis, with Afghan refugees being forcibly returned to Afghanistan in large groups. However, some countries, including Germany, Australia, Canada, and the Netherlands, have announced legal action before the International Court of Justice against the state of Afghanistan for violations of the Convention on the Elimination of All Forms of Discrimination against Women.

In a similar way, the concept of gender apartheid has been gaining attention in recent years. However, part of the public discourse surrounding the plight of women in Afghanistan does not center around the concept of gender persecution, but instead focuses on a relatively new expression: "gender apartheid" (GA). Dr. Karima Bennoune was the one who popularized the concept of GA within the context of Afghanistan, and it has since been adopted by numerous governmental and non-governmental organizations. However, it still lacks a legal basis in international law.

Moreover, recent cases presented at the ICC have shown that steps are taken to address this accountability gap, for example, to use among other charges, the crime of gender persecution.  

In light of these developments, it is essential to examine the existing provisions and the use of international law in attempts to criminalize gender persecutions. There is currently no treaty or customary law basis for such a crime. The Rome Statute unfortunately does not give us a definition of a specific crime of gender apartheid.

To better understand the concept of gender apartheid, let's focus on the existing provisions and then see the use of it in international law in attempts to criminalize gender persecutions. The Rome Statute of the International Criminal Court defines 'the crime of apartheid' in (h) as inhumane acts of a character similar to those referred to in paragraph 1, 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.

Furthermore, the Rome Statute provides a framework for understanding the concept of gender. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.

In this regard, the use of article 7 (1) of the RS ICC to criminalize persecution on the ground of gender can be possible through recognition of a crime of gender apartheid. If we take an example of the Taliban's responsibility in regard to crimes committed against women and girls (minors), it is very likely that the evidence used to prove the commission of a crime of gender apartheid would be highly relevant to establishing a crime of persecution, and it is difficult to imagine a scenario where a conviction for gender apartheid could be secured but a conviction for persecution could not.

II/ ROAD FROM GENDER PERSECUTION TO POSSIBLE LEGAL RECOGNITION OF GENDER APARTHEID

Through the recent case law and decisions of the ICC, we can focus on the step-by-step recognition of these existing crimes. Even though it mainly focuses on the crime of persecution, attention is also given to the victims of the crimes committed.

To understand the evolution of women's protection in international law, let's start with an examination of the concept of gender persecution. Women and girls are also being forced into early marriages, and the Taliban have dissolved all mechanisms to protect them against an extremely high rate of domestic violence, exiled Afghan activist Nilofar Ayoubi told Justice Info. She says women in Afghanistan face a "living hell".   "Women have nowhere to go," she adds. "If they try to run away from home, they have nowhere to run to."  It has not been tested much, but the ICC has one case pending where the prosecutor has argued persecution on both religious and gender grounds, the Al Hassan case.

Additionally, the experiences of women in Afghanistan and Iran highlight the need for recognition of gender apartheid as a crime. Women certainly experience gender persecution in many different ways, and it's very much individualized. What we are looking at here is a State institutionalizing discrimination by removing women's rights and making it unlawful for them to do certain things which would be perfectly fine if they were a male citizen.

The international community wants gender apartheid to be included in the Rome Statute and in a new Convention on Crimes against Humanity under discussion at the UN. The Afghan activist Ayoubi strongly supports the use of the term "gender apartheid", having been part of the initial group at the UN to advocate for its adoption. She emphasizes that the situation in Afghanistan, where half the population is denied fundamental human rights solely due to their gender, is a clear example of gender apartheid. Ayoubi also draws parallels with the situation in Iran, highlighting the need for international recognition and accountability. She stresses that if the international community fails to acknowledge and punish the Taliban leaders for their actions, it would undermine hopes for human rights and justice, underscoring the urgency of addressing this critical issue.