INTRODUCTION
Imagine being denied the opportunity to attend school or university, prevented from working, restricted from travelling freely without a male guardian, or simply deprived of having a social life merely because of your gender. Such restrictions are not only discriminatory, but they also strip individuals of their fundamental human rights and dignity. The issue is no longer just about feminism; it goes far beyond that debate. It concerns the systematic denial of rights that every human being is entitled to enjoy.
Since the Taliban regained control of Afghanistan in August 2021, the lives of Afghan women and girls have drastically changed.[1] They have been barred from secondary and higher education, prohibited from working in many sectors, subjected to severe restrictions on their freedom of movement, and excluded from public spaces.[2] Women who have protested these restrictions have reportedly faced arbitrary detention, intimidation, enforced disappearances, and violence. At the same time, the dismantling of legal protections has left women and girls increasingly vulnerable to domestic violence, while many families, struggling with economic hardship and social pressure, have felt compelled to resort to child and forced marriages involving much older men.[3] These measures are neither isolated nor temporary. Rather, they have been part of a deliberate, institutionalized system of gender-based oppression, where discrimination is embedded in laws and policies rather than occurring through individual acts alone.
The nature of this oppression becomes clearer when these restrictions are viewed collectively. The Taliban’s policies have not been limited to one particular aspect of women’s lives. Instead, through a series of decrees and administrative measures, restrictions have extended across education, employment, movement and participation in public life. What makes these measures particularly concerning is that they operate together, creating a system in which the exclusion of women is gradually becoming a normal feature of governance rather than the result of isolated discriminatory decisions. While international law recognizes gender persecution as a crime against humanity, an important question arises: Is it sufficient to address a system deliberately designed to institutionalize gender-based oppression, or is it time to address gender apartheid as a distinct crime under international law?
UNDERSTANDING THE DIFFERENCE BETWEEN GENDER PERSECUTION AND GENDER APARTHEID
Before examining whether gender apartheid should be recognized as a distinct crime, it is important to understand how it differs from gender persecution. Although the two concepts are closely connected, they differ in terms of their nature, scope and legal recognition.
Gender persecution refers to the intentional and severe deprivation of fundamental rights against an individual or a group of people solely because of their gender. Recognized as a crime against humanity under Article 7(1)(h) of the Rome Statute,[4] it criminalizes discriminatory acts that intentionally deprive individuals of the rights and freedoms they are entitled to enjoy simply because of their gender. In practice, such persecution has predominantly affected women and girls, although the provision is broad enough to protect any identifiable gender group under international criminal law.
However, not every discriminatory act amounts to persecution under international criminal law. Persecution requires a severe deprivation of fundamental rights and must be carried out because of the identity of the group or collectivity being targeted. It must also occur in connection with another act covered by the Rome Statute or another crime within the jurisdiction of the Court. In addition, as a crime against humanity, persecution must take place within the broader context of a widespread or systematic attack directed against a civilian population. The legal threshold is therefore much higher than ordinary discrimination, as persecution is concerned with serious and intentional violations of fundamental rights.[5]
The relevance of these requirements can be seen in the ICC’s recent proceedings concerning Afghanistan. In July 2025, the ICC issued arrest warrants for senior Taliban leaders for the alleged crime against humanity of persecution on gender grounds.[6] This development is particularly significant because it demonstrates the potential of the existing framework of gender persecution to address the widespread and systematic deprivation of women’s and girls’ fundamental rights.
Gender-based persecution is not confined to Afghanistan. Across different parts of the world, women and girls continue to experience discrimination and restrictions on their fundamental rights because of their gender. However, Afghanistan represents one of the clearest contemporary examples of a state-imposed system of gender-based segregation and exclusion, making it central to the debate on recognizing gender apartheid under international law.
Gender apartheid, on the other hand, extends beyond individual acts of discrimination or persecution. The term has been used by legal scholars and international experts to describe a systematic and institutionalized regime in which laws, policies and state practices are deliberately designed to maintain the domination of one gender over another through segregation, exclusion and oppression. Rather than addressing isolated acts of discrimination, the concept recognizes an entire system where inequality is embedded within governance and becomes part of everyday life. Although gender apartheid has not yet been recognized as a distinct crime under international law, many international experts and legal scholars argue that the situation in Afghanistan reflects precisely such a system and therefore warrants its recognition as a separate international crime.[7]
It is important, however, to distinguish gender apartheid from the existing crime of apartheid under international criminal law. The Rome Statute already recognizes apartheid as a crime against humanity, but the existing offence is specifically concerned with an institutionalized regime of systematic oppression and domination by one racial group over another.[8] The proposed recognition of gender apartheid would therefore not simply duplicate the existing offence. It is based on the argument that the same concern with institutionalized domination should also extend to situations where the basis of that domination is gender rather than race. At present, however, gender apartheid remains a proposed development of international criminal law rather than a separately recognized crime.
WHY GENDER PERSECUTION IS NOT ENOUGH
Although gender persecution is recognized as a crime against humanity under the Rome Statute,[9] its primary focus is on addressing the acts of discrimination and severe deprivation of fundamental rights suffered by an individual or a group of people because of their gender. Although it criminalizes such acts, it does not fully capture situations where discrimination is systematic, institutionalized and embedded within the legal and political framework of a State. As a result, it primarily addresses the consequences of oppression rather than the system that creates and sustains it.
At the same time, it would be inaccurate to suggest that existing international criminal law is incapable of addressing the Taliban’s conduct. Gender persecution already provides a basis for holding individuals accountable where women and girls are intentionally and severely deprived of their fundamental rights because of their gender. The ICC’s recent proceedings concerning senior Taliban leaders demonstrate that this framework can, in fact, be applied to the situation in Afghanistan. The question, therefore, is not whether the existing law can address individual violations. It can. The more difficult question is whether it adequately captures the broader system in which those violations occur.
Afghanistan illustrates this limitation. The oppression and restrictions imposed on women and girls are not merely isolated incidents of discrimination. Rather, they have been embedded within the governance structure of the State through a series of laws, policies and decrees. These measures systematically deny fundamental human rights by denying women and girls access to education, employment, political participation, freedom of movement and public life. When viewed individually, such acts may amount to gender persecution; however, when examined collectively, they reveal a broader system of institutionalized segregation and oppression maintained through State practices themselves.[10]
Therefore, looking at these violations only as individual acts of gender persecution does not fully reflect the reality of what women and girls in Afghanistan are experiencing. The harm goes beyond separate instances of discrimination; it lies in the existence of a system where restrictions on basic rights are deliberately designed, enforced and normalized through State policies. While gender persecution provides a way to hold individuals accountable for serious violations, it may not completely address a situation where an entire gender group is systematically excluded and subordinated.
THE CASE FOR RECOGNIZING GENDER APARTHEID
Recognizing gender apartheid as a distinct crime under international law is not merely about introducing another legal term. Rather, it is about acknowledging that certain forms of gender-based oppression are so deeply embedded within a State’s legal and political framework that they require a distinct legal response.[11] A separate crime could also provide a clearer legal framework for recognizing the institutionalized regime itself. Restrictions on education, employment, movement and public participation could be understood not simply as separate violations, but as interconnected measures that contribute to maintaining a broader system of domination. Such recognition would work alongside existing offences by allowing the broader structure through which gender-based oppression is organized and sustained to be identified more directly.
The situation in Afghanistan demonstrates that the denial of education, employment, freedom of movement and participation in public life is not the result of isolated decisions, but part of a broader system deliberately designed to exclude women and girls from society. Such a system cannot be adequately understood by looking only at individual acts of discrimination; it must also be recognized for the institutionalized structure that enables and sustains those acts. A legal framework that identifies and addresses this system would not only strengthen international accountability but also send a clear message that the deliberate subordination of one gender has no place in the modern world.
More importantly, recognizing gender apartheid would reaffirm that equality, dignity and freedom are not privileges to be granted or withdrawn by those in power, but fundamental human rights that belong to every individual. A society that legalizes discrimination, normalizes surveillance, silences the voices of women and girls, and deprives half of its population of education, opportunity and public participation cannot truly grow. Recognizing gender apartheid would therefore be more than a symbolic legal reform; it would acknowledge the lived reality of millions of women and girls and reinforce the international community’s commitment to preventing such systems of oppression from becoming accepted or replicated elsewhere.[12]
CONCLUSION
The distinction between gender persecution and gender apartheid is more than a matter of terminology. It is about recognizing the true nature of systematic gender-based oppression and ensuring that international law is capable of responding to it effectively. While gender persecution remains an important legal tool, the situation in Afghanistan highlights the need to reconsider whether existing legal frameworks are sufficient to address systems deliberately designed to exclude and subordinate women and girls. Recognizing gender apartheid would not mean abandoning the existing framework of international criminal law. Gender persecution and other crimes against humanity would continue to provide important mechanisms for holding individuals accountable for specific violations. The purpose of recognizing gender apartheid would instead be to complement these mechanisms by acknowledging the institutionalized system in which those violations occur. The debate is therefore not simply about creating another offence, but about ensuring that international law is capable of recognizing and responding to systems of oppression that operate through an entire structure of governance. As international law continues to evolve, recognizing gender apartheid as a distinct crime would be an important step towards protecting equality, dignity and the fundamental human rights to which every individual is entitled.
Author(s) Name: Divyanshi (Bennett University, Greater Noida)
References:
[1] Gender Index 2024: Afghanistan (UN Women 2025)
[2] ‘Women in Afghanistan have not stopped striving for their rights, and neither should we’ (UN Women, 12 August 2024) <https://www.unwomen.org/en/news-stories/feature-story/2024/08/women-in-afghanistan-have-not-stopped-striving-for-their-rights> accessed 24 July 2026
[3] ‘Girls increasingly at risk of child marriage in Afghanistan’ (UNICEF, 12 November 2021) <https://www.unicef.org/press-releases/girls-increasingly-risk-child-marriage-afghanistan> accessed 25 July 2026
[4] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90, arts 7(1)(h) and 7(2)(g)
[5] Ibid
[6] ‘Situation in Afghanistan: ICC Pre-Trial Chamber II issues arrest warrants for Haibatullah Akhundzada and Abdul Hakim Haqqani’ (International Criminal Court, 08 July 2025) <https://www.icc-cpi.int/news/situation-afghanistan-icc-pre-trial-chamber-ii-issues-arrest-warrants-haibatullah-akhundzada> accessed 27 August 2026
[7] Gissou Nia, ‘Gender apartheid is a horror. Now the United Nations can make it a crime against humanity.’ (Atlantic Council, 05 October 2023) <https://www.atlanticcouncil.org/blogs/new-atlanticist/gender-apartheid-is-a-horror-now-the-united-nations-can-make-it-a-crime-against-humanity/> accessed 26 July 2026
[8] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90, art 7(2)(h)
[9] Ibid art 7(1)(h)
[10] Gender Index 2024: Afghanistan (n 1)
[11] Nia (n 7)
[12] ‘Malala Fund’s statement on the Taliban’s new criminal code.’ (Malala Fund, 21 January 2026) <https://malala.org/news-and-voices/gender-apartheid-written-into-law> accessed 26 July 2026