More states willing to consider gender-based apartheid under proposed treaty on crimes against humanity

(Editor’s note: This is the last of three articles analyzing a recent “resumed session” of the Legal Committee of the United Nations General Assembly to discuss draft articles on the prevention and punishment of crimes against humanity. See also previewand an analysis of gender justice positions for the proposed treaty.)

The United Nations special rapporteur on Afghanistan will present his report to the Human Rights Council next month on the “phenomenon of an institutionalized system of discrimination, segregation, lack of respect for human dignity and exclusion of women and girls. The rapporteur confirmed that at least one aspect of the report will examine ongoing gender apartheid in Afghanistan.

The assessment could help build a growing movement to recognize the concept of gender apartheid and codify it as a crime against humanity, momentum demonstrated during a recent discussion on a draft treaty on crimes against humanity. humanity during a “resumed session” of the Sixth United Nations General Assembly. Commission (legal) in April. The Afghanistan case and the session on the draft treaty highlight the issues as the Sixth Committee prepares to meet in October to determine the convention’s next steps, particularly whether to proceed with formal negotiations.

The glaring and deteriorating human rights situation of Afghan women, girls and others was highlighted during a recent UN Human Rights Council “Universal Periodic Review” for Afghanistan , required of UN member states every 4.5 years. As highlighted by the Office of the United Nations High Commissioner for Human Rights for review and listed at the required session of the Council by the Permanent Mission of Afghanistan, which is still recognized by UN bodies in Geneva although it was appointed by the former government, the Taliban regime continues to tighten its grip. He issues executive orders, decrees and policies that eviscerate what remains of the individual autonomy, rights and freedoms of women and girls. And it enforces these restrictions in punitive and often violent ways, through arbitrary detention, sexual abuse, torture, and cruel, inhuman or degrading treatment and punishment, and other unlawful means. As part of the review, several states highlighted evidence of systematic and institutionalized violations of women’s rights, including using the term that Afghan women say best describes their experience: apartheid gender.

Legal recognition of gender apartheid as a crime under international law would help directly address phenomena such as the Taliban’s dystopian regime of systematic gender-based oppression, domination and subjugation. This lively context and the specific intent to maintain such an institutionalized regime of systematic oppression and domination is what distinguishes gender apartheid from other existing international crimes such as gender-based persecution. As we have previously written with our colleagues, UN member states have a unique and urgent opportunity to codify the crime of gender apartheid in the proposed Treaty on Crimes Against Humanity. The international community must act immediately to address and punish all of the grave human rights violations and major international crimes committed – so far, with astonishing impunity.

This will require using all possible legal tools to hold the Taliban accountable, including the ICC’s ongoing investigation into alleged crimes against humanity and war crimes committed in Afghanistan since 2003; a possible case before the International Court of Justice alleging violations of the Convention on the Elimination of All Forms of Discrimination Against Women; and universal jurisdiction cases in foreign jurisdictions against individual Taliban perpetrators. Each of these legal avenues is complementary and must be pursued in parallel, with the full and meaningful participation of Afghan jurists and civil society.

Legal progress has been made in the ongoing global initiative to codify gender apartheid, and states should continue to show solidarity with Afghan women, girls, LGBTQI+ people and others, who have long led efforts to recognize gender apartheid.

Ten states express openness to exploring codification

To date, 10 UN member states have expressed willingness to explore codification of the crime of gender apartheid in the proposed treaty, currently in the form of the International Law Commission (ILC) Draft Articles. on the prevention and punishment of crimes against humanity. As previously explained, six States (Afghanistan, Australia, Brazil, Malta, Mexico and the United States) referred to the possibility of codifying gender apartheid in their December 2023 written comments on the ILC draft articles. . At the resumed April 2024 session, five of these states reiterated their support for exploring codification and four new states (the Philippines, Chile, Iceland and Austria) also indicated their support. support. Given that the views of 68 states were represented during the debate in question, this means that 13 percent of states raised gender apartheid. As the co-facilitators noted in their oral report, several States “suggested incorporating gender-based crimes, such as ‘gender apartheid’… as well as adopting a gender mainstreaming dimension in a future convention.

These developments are significant in several respects. First of all, the interventions of the 10 States are quite remarkable given that the joint civil society proposal to include gender apartheid in the proposed treaty was presented to the States only six months ago, and that the Group of United Nations work on discrimination against women and girls released a communication just a month ago. A few days ago, he called for codification in the treaty. Now that the positions of the 10 states on gender apartheid have been documented in written comments in December and/or in the President’s summary of the resumed April session, the proposal to explore the inclusion of a crime of “gender apartheid” is now officially part of the file that will inform future diplomatic negotiations on the possible treaty.

Second, it is worth noting the interregional character of the states that have shown themselves open to exploring the codification of gender apartheid: among them, three states were from Latin America, two from Asia-Pacific and three from ‘Europe. Their diversity speaks to the growing recognition, across regions and cultures, of the threat posed by the Taliban in perpetuating gender apartheid and the urgent need for an international legal response. These states appear to be responding not only to the increasingly deteriorating situation on the ground for women, girls and others in Afghanistan, but also to the risk that if the institutionalized regime of systematic gender-based oppression and domination of the Taliban – and their intentions – is not addressed and criminalized, the international community may fail to prevent and protect against its recurrence in other contexts. The international legal system cannot punish what it has not named.

Third, although only 10 delegations in the Sixth Committee specifically referred to the potential codification of “gender apartheid”, other States indicated support for making amendments to the draft articles for definitions crimes, which the ILC largely transposed from the Rome Statute which created the International Convention. Criminal court. At the resumed April session, 42 delegations indicated support for changing the definitions of crimes in Article 2 of the draft or adding new crimes. Of those states, 13 indicated they were willing to do so specifically for gender-based crimes. These are promising signs that a broader consensus is building for the recognition and codification of gender apartheid.

Maintaining Momentum Moving Forward

This fall, the Sixth Committee will have to decide how to proceed with the draft articles. At the resumed April session, States were invited to share their views on the ILC’s recommendation that the draft articles provide the basis for a treaty. Of those who spoke, the vast majority – more than 70 – supported the idea that the appropriate next step in the process would be negotiation, whether under the auspices of the United Nations General Assembly or at of an international diplomatic conference. But the Sixth Committee will have to decide on a resolution to proceed to formal negotiations, whether by consensus or by vote, and, as Leila Sadat, director of the Crimes Against Humanity Initiative, charged with drafting the first global treatise on crimes against humanity, wrote for Just safety, “a handful of states” used the Sixth Committee’s tradition of consensus to block the treaty’s progress.

In the meantime, the international community should continue to use the term gender apartheid in all its engagements on Afghanistan, including at the UN Security Council, as well as at the next session of the Human Rights Council. man in June, during which the special rapporteur on Afghanistan will present his report. The continued strengthening of the concept of gender apartheid – even as a political and contextual issue – is an indispensable bulwark against the normalization of Taliban rule, even as work continues to develop the international legal framework to encapsulate and punish dystopian conduct Taliban. and intention.

IMAGE: Taliban security personnel stand guard as an Afghan woman dressed in a burqa (right) walks down a street in a market in Baharak district, Badakhshan province, February 26, 2024. ( Photo by WAKIL KOHSAR/AFP via Getty Images)