During the April 2024 session of the Sixth (Legal) Committee of the U.N. General Assembly on the Draft Articles on the Prevention and Punishment of Crimes Against Humanity, ten Member States declared openness for including a new crime of gender apartheid in the proposed text. The U.N. Working Group on Discrimination Against Women and Girls had previously recommended the Member States of the General Assembly incorporate this new crime into the draft treaty. The Sixth Committee in its upcoming session in October will decide whether to advance the draft treaty, which includes the proposed crime of gender apartheid, to a diplomatic conference for negotiations.
While the fate of the draft treaty is still uncertain, an examination of the provisions related to gender apartheid raise an additional, fundamental question: can the proposed treaty framework deliver justice to victims of such a systemic discrimination as gender apartheid, or are there more suitable ways to prosecute and pursue remedies for such a violation? Specifically, could discussions about the revival of the Apartheid Convention, following South Africa’s recent ratification—which many see as a step towards reviving the Convention and its enforcement mechanisms in response to the war on Gaza—and the International Court of Justice (ICJ) advisory opinion on Israel’s ongoing occupation of Palestinian territories, which addresses racial segregation and apartheid, provide a basis for rethinking the approach to the codification of gender apartheid?
Apartheid as a Phenomenon
Translated from the Afrikaans word meaning “apartness” and deeply shaped by the policies and practices of the South African white supremacist regime of the National Party government (1948–1994) against non-white, and particularly Black people, apartheid refers to a system whereby a ruling group systematically uses oppression to establish and maintain a regime of dominance over another group, driven by an ideology of governance. In such a regime, everyone belonging to the “superior” group is considered a first-class human being, regardless of their level of participation in establishing and perpetuating the system of subjugation and the extent to which they benefit from it. Those who do not belong to the superior group are regarded as second-class human beings. As a natural result of this domination, members of the superior group, collectively, receive disproportionate economic, social, political, and personal benefits at the expense of the inferior group, which suffers widespread exploitation, discrimination, and deprivation.
Establishing and sustaining such an inhumane regime of domination requires intense and severe discrimination, the privileging of opportunities, segregation, repression, and violence, as no one willingly accepts living as a lesser human being. This process usually takes hold over a prolonged period and involves institutionalization, which requires changing laws, policies, and practices to align with the governing ideology, as well as creating organizations and bureaucracies to enforce them. Moreover, maintaining an apartheid regime depends on the direct or indirect contributions of almost all members of the superior group – whether State actors or private individuals – except for a small margin who resist and are punished as a result. The ideologies upheld by apartheid regimes are typically rooted in historical, socio-political, economic, or religious backgrounds but become systemic under apartheid, impacting and permeating entire social, political, cultural, and economic structures and norms.
Apartheid Convention
Considered an abhorrent threat to global peace and security, apartheid prompted the international community to take some of its strongest measures to dismantle the policies and practices in South Africa. Except for extermination as the ultimate goal, there were striking similarities between South African policies and practices against Black people and the German “master race” policy and its criminal implementation against Jewish people and others; the German system was classified as persecution under the Nuremberg Charter and led to extensive case law by the Nuremberg Tribunal and its subsequent trials.
However, rather than only using the existing concept of persecution within the international law toolbox to describe the situation in South Africa, the international community chose to recognize a new crime against humanity: apartheid. One of the major responses was the adoption of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid (the Apartheid Convention). The crime of apartheid was defined as “inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.” The systemic and institutionalized oppression of apartheid in South Africa had to be eradicated, necessitating a comprehensive approach to dismantle the system entirely to achieve justice for its victims.
The Apartheid Convention fully acknowledges this approach both in the definition of the crime and the measures designed to suppress and eliminate it, representing an unprecedented effort to expand international criminal jurisdiction and enforcement. Moreover, the Apartheid Convention addresses the typology of perpetrators involved in perpetuating policies and practices of apartheid, including countless principals and accomplices, as government officials and private individuals and entities. These persons and entities are capable of being implicated in a range of inhumane acts that affect a massive number of victims, often in the millions.
The obligations of States Parties to the Apartheid Convention extend beyond merely preventing and punishing the crime of apartheid and cooperating with each other in these efforts. States parties also have a “duty to suppress the crime” of apartheid in order to achieve the purposes of the Convention, namely to end apartheid as enshrined in its preamble. Therefore, States Parties are obliged to adopt legislative, judicial, and administrative measures to prosecute, bring to trial and punish in accordance with their jurisdiction. Moreover, they must “declare criminal those organizations, institutions and individuals committing the crime of apartheid.” They are also obligated to submit periodic reports on measures they had undertaken to implement the provisions of the Convention, as well as a list of individuals and entities involved in apartheid to the monitoring body designated by the U.N. Commission on Human Rights. These multifaceted measures, including severe sanctions and other punitive actions aimed at pressuring both the government and those that supported it, had a devastating impact on the South African economy, contributing to the regime’s acceptance to hold the country’s first democratic elections in 1994 that ultimately put an end to the apartheid regime.
In its 1995 resolution on the Convention, the U.N. Commission on Human Rights, noting that “apartheid no longer exists anywhere,” decided to suspend the monitoring body. This decision, arguably premature, effectively rendered the Apartheid Convention de facto dormant, although it remains legally in force.
Draft Treaty on Crimes against Humanity
The U.N. Working Group on Discrimination Against Women and Girls’ proposed definition of “the crime of gender apartheid” for adoption in the draft treaty includes the following: “Inhumane acts committed within the context of an institutionalized regime of systematic discrimination, oppression, and domination by one group over another or others, based on gender, and committed with the intention of maintaining that regime.” Some examples of such inhumane acts in countries like Afghanistan and Iran include crimes such as murder, imprisonment, enforced disappearance, torture, and ill-treatment. Additionally, these acts involve denying individuals participation in political, social, economic, and cultural life, as well as violating fundamental human rights such as access to education, work, freedom of expression, and assembly. These abuses are committed to enforce severe gender discrimination, segregation, and exclusion, and to repress dissent and disobedience. As the Working Group and many scholars have highlighted, while violations of women’s and girls’ human rights and gender-specific crimes such as gender persecution are significant, they do not explicitly address the institutionalized and systemic nature of apartheid-like violations.
I have previously supported the proposals to include gender apartheid in the draft treaty on multiple occasions and continue to believe that such an action could represent a significant step toward recognizing the crime in positive law, i.e. that formally enacted into international law by States, thereby imposing obligations on them. It could potentially lead to the prosecution of individual perpetrators in both domestic and international courts. Similarly, Portugal proposed to amend the definition of persecution, including persecution on the grounds of gender, by removing the problematic linkage requirement. According to the current definition adopted from the ICC Statute, persecution is not a standalone crime but only occurs “in connection with” another international crime. If the proposal is approved, it could offer a degree of protection to women who suffer from inhumane acts and deprivation of fundamental rights, even when no other international crimes are being committed in the same context.
However, neither of these options would effectively contribute to the eradication of gender apartheid regimes. Compared to the extraordinary and expansive enforcement measures featured in the Apartheid Convention, the enforcement mechanism proposed in the draft treaty on crimes against humanity is ordinary. States Parties are required to prevent and punish crimes, as well as to cooperate with each other in matters of extradition and legal assistance, but there is no mention of a “duty to suppress crimes.” Furthermore, similar to the ICC Statute, the draft treaty focuses solely on individual criminal responsibility and does not address the responsibility of institutions and organizations that are crucial in establishing and perpetuating apartheid regimes.
The crime of apartheid is systemic and institutionalized, and it can persist, continuing to haunt victims’ lives even if some individual perpetrators are prosecuted and punished. Therefore, efforts to incorporate gender into the definition of apartheid should not be confined solely to the fate of the criminal law treaty on crimes against humanity; they should also be pursued through other avenues.
A Revived Apartheid Convention
The deteriorating situation of the Palestinian people and the war in Gaza have intensified discussions about the crime of apartheid, with many scholars and international human rights organizations describing Israeli policies and practices as constituting an existing apartheid regime. During the proceedings at the ICJ concerning the Legal Consequences of the Occupation of the Palestinian Territories, 16 states parties to the 1973 Apartheid Convention submitted that Israel is imposing an apartheid regime on Palestinians. Although the ICJ’s advisory opinion of July 2024 did not reference the Apartheid Convention but instead focused on the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which prohibits both racial segregation and apartheid under Article 3, its finding that “Israel’s legislation and measures constitute a breach of Article 3 of CERD” has sparked further debate. Some scholars think that the reference to systemic discrimination in the opinion was a strategy by judges who could not persuade others to explicitly use the term.
Furthermore, in May 2024, South Africa deposited its instrument of ratification for the Apartheid Convention, becoming the 110th State Party to the convention. This development has raised hopes for the reactivation of the Apartheid Convention and has prompted suggestions for revisions, including changes to the structure of its monitoring body. According to the text of the Apartheid Convention, only one State Party can request a revision, and the U.N. General Assembly “shall decide upon the steps, if any, to be taken in respect of such request.”
If the international community moves towards reviving the Apartheid Convention to better reflect and address current and future apartheid regimes, and the discussion on reforming it becomes serious, the most appropriate framework for codifying gender apartheid would be in the revised version of the Convention or an additional protocol. Additional Protocol II to the Geneva Conventions expanded the scope of the obligations under the laws of war, and some of the additional protocols to the European Convention on Human Rights have amended it by adding new rights.
In the overwhelming context of ongoing debate over Israel-Palestine issue, the proposal to incorporate gender into the Apartheid Convention may seem deviating. It may also be considered implausible given the rarity of revisions to international human rights instruments, let alone one that requires the expansion of the scope of a de facto dormant convention.
Nevertheless, as the U.N Working Group on Discrimination Against Women and Girls sets out, “gender apartheid, like racial apartheid, represents a State-designed system of coordinated and comprehensive policies and practices intended to oppress and subjugate a particular group based on their gender identity.” Given its systemic nature, the primary goal of humanity should be to systematically combat and eradicate apartheid wherever it occurs and against any group. Achieving this requires a legal framework similar to the Apartheid Convention that addresses the full scope of gender apartheid regimes, thereby closing the impunity gap, especially for institutional and organizational perpetrators who target millions of women in countries such as Afghanistan and Iran.