Legal Brief

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October 5, 2023

Dozens of prominent jurists, scholars, and civil society representatives from around the world have issued a joint letter urging United Nations Member States to codify the crime of gender apartheid in the Draft Crimes against Humanity Convention, the first major global treaty on core international crimes since the 1998 Rome Statute of the International Criminal Court. 

Member States will have an opportunity to express their support for codifying the crime of gender apartheid in the coming months – through oral statements during the October 2023 and April 2024 sessions of the UN Sixth Committee (Legal) and through written comments and observations due by the end of the year.

This is an important step for the End Gender Apartheid Campaign

Including gender apartheid in the treaty may be the quickest and surest route to make gender apartheid a recognized crime under international law.

Cover Letter

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To Distinguished Representatives of Member States of the United Nations

Excellencies and Country Representatives:

The undersigned respectfully bring your attention to a glaring and consequential gap in the current Draft Articles on Prevention and Punishment of Crimes against Humanity: the omission of the crime against humanity of gender apartheid.

By replicating the definition of “apartheid” as codified in the 1998 Rome Statute of the International Criminal Court, the draft treaty is needlessly constrained to a 25‑year‑old articulation of race‑based apartheid. It fails to account for gender‑based apartheid, which has long been recognized by the international community, including United Nations Secretary‑General António Guterres. The past decades have witnessed significant progress in recognizing gendered crimes, and codifying gender apartheid should be part of that continued progress.

The failure to codify gender apartheid perpetuates an accountability vacuum that leaves many victims and survivors without remedy or reparation. The crime of gender apartheid is unique in animus and intent. It is distinct from other international crimes, including gender persecution, due to its dystopian ambition to maintain an institutionalized regime of systematic oppression and domination, where the under‑class is subjugated for the dominant group’s benefit and survival, dehumanized, and cut off from the resources and access needed to overcome their choreographed oppression. The Taliban’s ever deepening and institutionalized oppression of Afghan women and girls is a case in point. The codification of gender apartheid will assist victims and survivors holding perpetrators to account for the totality of crimes committed against them.

The Draft Crimes Against Humanity Convention presents an important opportunity for States to act and recognize extreme, institutionalized gender‑based discrimination for what it is: a type of apartheid. We understand that the draft treaty will be debated by the Sixth Committee at the UN General Assembly from 11 to 12 October 2023, and then subject to written comments and observations by Member States by the end of 2023. For the reasons set out in the attached brief, the undersigned recommend the following amendment (in bolded text) to the definition of the “crime of apartheid” contained in Article 2(2)(h) of the draft treaty:

“the crime of apartheid” means 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, or by one gender group over another gender group or groups, and committed with the intention of maintaining that regime.”

Codifying gender apartheid in the draft treaty does not require the creation of a completely new and separate crime; it only involves inserting gender into the definition of the “crime of apartheid.” We urge your Excellencies to consider this proposed amendment to fill the ongoing impunity gap under international law and to ensure a gender‑inclusive approach that better reflects the realities, both historical and ongoing, of institutionalized regimes of systematic oppression and domination.

We thank your Excellency’s Government in advance for your attention to this pressing issue.

Signatures

  • Shaharzad Akbar
    Executive Director, Rawadari
  • Shirin Ebadi
    Nobel Peace Prize Laureate
  • Narges Mohammadi
    Nobel Peace Prize Laureate
  • Malala Yousafzai
    Executive Chair and Co‑Founder, Malala Fund
  • Nadia Murad
    President of Nadia's Initiative & Nobel Peace Prize Laureate
  • Gloria Steinem
    Writer & Feminist Organizer
  • Justice Richard J. Goldstone
    former Chief Prosecutor of the ICTY and ICTR & former Justice of the Constitutional Court of South Africa
  • Mary Robinson
    Chair of The Elders
  • Tsakhiagiin Elbegdorj
    former President of Mongolia
  • Justice Navi Pillay
    South African Jurist
  • H.E. Dr. Fatou Bensouda
    High Commissioner of The Gambia to the UK & Ambassador to Eight other countries. Former ICC Chief Prosecutor
  • Baroness Helena Kennedy of the Shaws KC
    Barrister, Member of the House of Lords of the United Kingdom
  • Hina Jilani
    Human Rights Defender and Former UN Special Representative on Human Rights Defenders
  • Judge Najla Ayoubi
    women's rights defender and lawyer, Afghanistan
  • Hillary Rodham Clinton
    former US Secretary of State 
  • Habiba Sarabi
    Former negotiator with Taliban Deputy of High Peace Council Bamyan governor Minister of Women’s Affairs 
  • Fawzia Koofi
    First woman deputy speaker of Parliament in Afghanistan and former member of peace negotiation
  • Fatema D. Ahmadi
    Human Rights Defender 
  • Gro Harlem Brundtland
    First woman Prime Minister of Norway and former Director‑General of WHO
  • Kenneth Roth
    former Executive Director of Human Rights Watch, Visiting Professor at Princeton School of Public and International Affairs
  • Melanne Verveer
    Former U.S. ambassador for global women’s issues
  • Maryam Rayed
    Founding Director, Afghanistan Women's Think Tank
  • Hon. Stephen J. Rapp
    Former Chief of Prosecutions of the ICTR, Former Prosecutor of the SCSL, & Former US Ambassador‑at‑Large for Global Criminal Justice
  • Radhika Coomaraswamy
    Former Special Rapporteur on Violence Against Women & Special Representative on Children and Armed Conflict
  • Artemis Akbary
    Founder & Executive Director of Afghanistan LGBTIQ+ Organization (ALO)
  • Manizha Bakhtari
    The ambassador and permanent representative of the Islamic Republic of Afghanistan in Austria and International Organizations based in Vienna
  • Mahnaz Afkhami
    Founder & President of Women's Learning Partnership & Iran's Former Minister of Women's Affairs
  • Mehrangiz Kar
    Lawyer, Women's Rights Defender & Author
  • Nayera Kohistani
    human rights defender and Afghan woman protester
  • Leila Sadat
    Professor & Director of Crimes Against Humanity Initiative Washington University School of Law, former Special Adviser on Crimes Against Humanity
  • Javaid Rehman
    UN Special Rapporteur on the situation of human rights in the Islamic Republic of Iran and Professor of Muslim Constitutionalism and Human Rights Law, Brunel University, London
  • Gro Harlem Brundtland
    First woman Prime Minister of Norway and former Director‑General of WHO
  • Lorenzo Zenteno
    Chilean former judge
  • Tamana Zaryab Paryani 
    Founder, Libertarian Women Movement
  • Professor Penelope (Penny) Andrews
    John Marshall Harlan II Professor; Director, Racial Justice Project, New York Law School
  • Wahida Amiri
    Afghan woman protester
  • Karima Bennoune
    Lewis M. Simes Professor of Law at the University of Michigan Law School & Former UN Special Rapporteur in the field of cultural rights 
  • Professor Emerita Rashida Manjoo
    Faculty of Law, University of Cape Town, South Africa
  • Ahmed Shaheed
    Professor of Law, University of Essex, Former Special Rapporteur of the Human Rights Council on the situation of human rights in the Islamic Republic of Iran 
  • Sareta Ashraph
    international criminal law expert
  • Prof. Rangita de Silva de Alwis
    University of Pennsylvania Law School & CEDAW Commitee Member
  • Professor Christine Chinkin
    LSE Centre for Women, Peace and Security
  • Hannah R. Garry
    Executive Director, Promise Institute for Human Rights, UCLA School of Law
  • Hina Jilani
    Human Rights Defender and Former UN Special Representative on Human Rights Defenders
  • Dr. Mark S. Ellis
    Executive Director, International Bar Association 
  • Attaullah Wesa
    Executive director, Penpath, and brother of detained activist Matiullah Wesa
  • Teresa Casale
    Executive Director, Mina’s List
  • Pashtana Durrani
    Social and Political Rights Activist and Executive Director for LEARN Afghanistan
  • Almudena Bernabeu
    Barrister/Lawyer & Co‑founder, Guernica 37 Group
  • Naheed Ahmadi Farid
    Human Rights Defender
  • Atena Daemi
    Iranian human rights defender
  • Rawan Arraf
    Executive Director, Australian Centre for International Justice
  • Alda Facio
    Founding member of the Women's Caucus for Gender Justice at the ICC, former member and chair, UN Working Group on Discrimination Against Women
  • Stephanie Farrior
    former Legal Director of Amnesty International & Independent Consultant on International Law and Human Rights
  • Ajuan Mance
    Professor of African American literature, Mills College at Northeastern University Author of "Living While Black"
  • Metra Mehran
    Human Rights Activist
  • Gissou Nia
    Director, Strategic Litigation Project
  • Elizabeth Odio Benito
    Former judge of the International Criminal Court and of the Inter‑American Court of Human Rights and ICTY
  • Roshan Mashal
    Women’s Human Rights activist
  • Azadah Raz Mohammad 
    International Human Rights Lawyer
  • Kobra Moradi
    Legal Analyst, Afghanistan Human Rights and Democracy Organization
  • Horia Mosadiq
    Women Rights Defender from Afghanistan
  • Yalda Royan
    Founder, Sisterhood and Solidarity Inc & Women’s Rights Activist
  • Akila Radhakrishnan
    President, Global Justice Center
  • Humaira Rasuli
    Afghan Women Rights Activist
  • Yasmine Chubin
    Legal Advocacy Director, Clooney Foundation for Justice
  • Sima Samar
    Former Chairperson of Afghanistan Independent Human Rights Commission and currently Visiting Scholar at Fletcher School at Tufts University. 
  • Shadi Sadr
    Co‑founder, Justice for Iran
  • Fatou Sow
    Professor of sociology, University of Paris Diderot & University of Dakar & Former Director, Network of Women Living under Muslim Laws
  • Pragna Patel
    Founding Director, Southall Black Sisters
  • Kathryn Sikkink
    Ryan Family Professor of Human Rights Policy, Harvard Kennedy School
  • Diane Marie Amann
    Emily & Ernest Woodruff Chair in International Law, University of Georgia School of Law, former Special Adviser to the International Criminal Court Prosecutor on Children in & affected by Armed Conflict 
  • Antonia Urrejola
    Former President of the Inter‑American Commission on Human Rights (2021), former Minister of Foreign Affairs of Chile (2022‑2023)
  • Nushin Sarkarati
    Deputy Director, Strategic Litigation Project
  • Elisabeth Wickeri
    Executive Director, Leitner Center for International Law and Justice, Fordham Law School
  • Zarqa Yaftali
    Founder, Women and Children Research and Advocacy Network 
  • Ziauddin Yousafzai
    Co‑Founder, Malala Fund
  • Dr Farkhondeh Akbari
    Postdoctoral Research Fellow at Monash University, Australia
  • Asila Wardak
    Afghan Human Rights Defender, Harvard Fellow
  • Maxine Marcus and Kathleen Roberts
    Co‑Directors and Co‑Founders, Partners in Justice International
  • Nancy Newman
    IANGEL Founder and President
  • Dr. Elham Manea
    Professor and Human Rights Defender
  • Sir Richard Branson
    Founder of the Virgin Group
  • Atlantic Council Strategic Litigation Project
  • Australian Centre for International Justice
  • Center for Human Rights Advocacy
  • Feminist Majority Foundation
  • Freedom Now
  • Global Justice Center
  • International Action Network for Gender Equality (IANGEL)
  • International Bar Association’s Human Rights Institute
  • Leitner Center for International Law and Justice at Fordham Law School
  • Partners in Justice International
  • Promise Institute for Human Rights | UCLA School of Law
  • Rawadari
  • Women Advocacy Committee
  • International Service for Human Rights (ISHR)
  • Women's Initiative for Gender Justice 
  • Women Living Under Muslim Laws
  • Georgetown Institute for Women, Peace & Security
  • Mukwege Foundation
  • Shahmama Organization for Women Studies,Human Rights and Development Initiative