Gender Apartheid and the Limits of Criminalisation

In August 2021, the Taliban returned to power in Afghanistan. This followed two decades of US-led military intervention and occupation, repeatedly justified as a mission to liberate Afghan women from the Taliban during their first regime from 1996-2001. Since their return, the Taliban have enforced an institutionalised regime of systemic discrimination and exclusion of women, depriving them of fundamental rights and freedoms.

This level of repression has triggered widespread concern and international mobilisation. Feminist advocates, legal scholars, and international institutions have intensified calls for legal accountability, mobilising the arsenal of available legal tools to bring an end to gender-based oppression in Afghanistan.

In September 2024, four applicant countries, Australia, Canada, Germany, and the Netherlands, announced their intention to pursue legal proceedings against Afghanistan before the International Court of Justice for violations of the Convention on the Elimination of all Forms of Discrimination against Women, the first case of its kind. In July 2025, the International Criminal Court issued arrest warrants for two of the Taliban’s leaders, stating that there are ‘reasonable grounds’ to believe that, since seizing power in 2021, they had committed the crime of gender persecution, a crime against humanity under Article 7(1)(h) of the Rome Statute.

Alongside these measures, the most prominent and sustained response has been the revival of the campaign to End Gender Apartheid, first launched by the Feminist Majority Foundation in 1997 in response to the Taliban’s discriminatory policies toward women. Central to the current campaign are proposals to legally recognise ‘gender apartheid’ as a distinct international crime.

The concept of gender apartheid has gained increasing traction, with the UN Special Rapporteur for Afghanistan describing it as an emerging legal category in 2024. This momentum has carried into debates on the draft Crimes against Humanity Convention, where there is now a concerted push to include gender apartheid ahead of intergovernmental negotiations scheduled for 2026.

Despite this momentum, proposals for legal recognition have received little critical scrutiny. This is particularly troubling given the history of international interventions in Afghanistan, where feminist aims have previously been co-opted to legitimise imperial and militarised agendas that have disproportionately harmed women. While naming systemic gender oppression is necessary, casting criminalisation as the primary response may not only prove ineffective—it may also reinstate colonial logics that have long narrowed feminist horizons of emancipation. In doing so, it risks leaving intact, and even exacerbating, the structural conditions shaping Afghan women’s lives after decades of war, occupation, and neoliberal reconstruction.

Cause for caution

The legal recognition of gender apartheid is said to fill a major gap in international law. Current legal tools, whether under international human rights law or international criminal law, are presented as inadequate to capture a regime that institutes structural gender discrimination as its mode of governance. The term ‘apartheid’, it is further argued, carries distinctive normative force, drawing on the historical stigma of the global struggle against racial apartheid in Southern Africa. On this view, legal recognition would, therefore, close a legal gap, strengthen accountability, and mobilise international pressure.

At the core of the proposals lies the ‘substitution argument’, which holds that the international legal framework developed to address racial apartheid should be adapted to confront systemic gender-based domination. Among others, Karima Bennoune, a legal scholar and prominent voice in the push for legal recognition, argues that the absence of a comparable legal category for gender reflects a troubling asymmetry in international law’s treatment of gender- and race-based discrimination. On this basis, the proposed legal definition is modelled directly on the crime of apartheid in Article 7(2)(h) of the Rome Statute, with gender replacing race.

The substitution argument, while initially persuasive in its simplicity, gives rise to two interrelated concerns that warrant careful consideration. First, it rests on an already diluted conception of apartheid that is detached from its anti-colonial genealogy. Second, by replacing race with gender within this framework, it treats both as interchangeable identity categories rather than as historically produced structures of domination, thereby diluting their meaning and emancipatory potential.

Taken together, these moves risk producing a narrowed and racialised account of gender oppression that centres ‘women and girls’ as paradigmatic victims, casts Muslim men as primary perpetrators, and mobilises familiar post-9/11 narratives in which gender-based violence becomes legible as a justification for international intervention. This risk is especially salient given the contexts in which the concept is said to most likely apply, notably Afghanistan and Iran.

Dilution and the loss of apartheid’s anti-colonial meaning

The starting point for proposals to legally recognise gender apartheid is the prohibition of racial apartheid, which is repeatedly invoked as both moral precedent and juridical template. However, this move obscures the anti-colonial genealogy of apartheid’s prohibition. Apartheid did not emerge as an abstract concern with systemic discrimination, nor as a neutral descriptor of unequal treatment between groups. It was articulated through anti-colonial struggles that understood apartheid as a form of racialised settler domination, inseparable from conquest, dispossession, labour exploitation, and the denial of self-determination.

Within international legal discourse, this genealogy was progressively eroded. As debates over apartheid unfolded at the UN, representatives from the Global South sought to situate apartheid alongside colonialism and global white supremacy, while Western states worked to domesticate the concept by reframing it as a problem of internal discrimination remediable through formal equality and legal prohibition. Its eventual codification in the Rome Statute consolidated this shift, framing apartheid as an inhumane act within the crimes against humanity framework and narrowing its meaning to forms of institutionalised domestic discrimination, while backgrounding the political economy of settler colonialism and racial capitalism that sustained it. Although wider interpretations may be possible, within this framework, the risk is that apartheid becomes something that can be condemned and prosecuted without any necessary engagement with the global power relations through which domination is produced and maintained.

Proposals to codify gender apartheid build upon this already diluted understanding. They rely on an abstraction of apartheid that treats it as a flexible legal model for naming institutionalised discrimination, detachable from the historical struggles through which it was forged. The appeal to apartheid’s moral gravitas therefore depends upon, and simultaneously obscures, the prior neutralisation of its anti-colonial content.

Substitution and the abstraction of race and gender

It is this dilution that undergirds the substitution argument. Once apartheid is understood primarily as the institutionalised domination of one group over another, defined by reference to a protected characteristic, it appears plausible to replace race with gender and to treat the two as commensurable within the same legal framework. However, this move rests on a narrow and depoliticised understanding not only of apartheid, but also of race, that has long been criticised within legal scholarship.

International law has tended to treat race as a stable identity category rather than as a historically contingent relation of domination produced through slavery, colonialism, and capitalist accumulation. In doing so, it often relies on biologised or reified notions of group difference that mirror the classificatory logics of the very regimes it seeks to condemn. When race is approached in this way, its substitution with gender appears straightforward, since both are reduced to markers of group identity that can be targeted by discriminatory laws or policies.

What is lost in this process is an account of how both race and gender themselves intersect and operate as mutually reinforcing hierarchies. It also obscures how both are constituted through material relations and political projects in which international law itself is implicated. Substitution therefore does not simply extend the reach of international law’s protections. It reproduces the same abstraction that has already narrowed the concept of apartheid, translating it into the register of gender without interrogating the structural conditions—largely caused or worsened by the US occupation of Afghanistan—that produce gendered domination.

Narrowing gender and reproducing salvationist logics

The effects of dilution and substitution become particularly clear in the conception of gender that emerges from the proposals. Although advocates often acknowledge that gender is socially constructed and context-dependent, the operational framing of gender apartheid remains overwhelmingly organised around the experiences of women and girls, with men consistently positioned as perpetrators. Gender thus functions less as a relational structure of power than as a proxy for womanhood associated with victimhood, anchored in a binary that renders certain subjects visible while marginalising others.

This narrowing has several consequences. It risks flattening the diversity of Afghan women’s lives and forms of resistance, collapsing them into a singular figure of vulnerability that is legible to international institutions but disconnected from the heterogeneity of lived experience. It also sidelines non-binary, queer, and other gendered subjectivities that do not fit neatly within the woman-man binary, despite the campaign’s rhetorical commitments to inclusivity. At the same time, it privileges a particular vision of gender justice grounded in liberal rights, individual autonomy, and market participation, treating these as universal benchmarks of emancipation while marginalising alternative feminist imaginaries rooted in collective modes of living, religious ethics, or socio-economic redistribution.

Taken together, these dynamics reproduce a familiar salvationist logic in which international law is positioned as the primary agent of liberation, Afghan women are cast as perpetual victims in need of rescue, and Muslim men are constructed as the dangerous perpetrators of harm. Within this framing, gender oppression is narrowed and refracted through gendered and racialised assumptions, while the structural and transnational conditions shaping women’s lives, including militarisation, economic devastation, and geopolitical intervention, recede from view. Concern for women is repeatedly mobilised through post-9/11 narratives in which gender-based violence is securitised, rendering women’s suffering legible as a justification for international intervention while obscuring both Western complicity and violence. As a result, a concept originally forged to name and dismantle white supremacy risks being redeployed in ways that reproduce hierarchies of race and gender, rather than dismantling them.

It is within this broader context that the current campaign to recognise gender apartheid must be situated. While it marks a departure from earlier iterations by presenting itself as Afghan-led and privileging legal over armed intervention, its most influential voices remain elite actors closely connected to international institutions and their governing logics. In this setting, appeals to ‘local leadership’ risk functioning less as a substantive redistribution of epistemic authority than as a legitimating frame through which the priorities of international liberal legalism are advanced, narrowing the range of Afghan women’s perspectives and feminist responses to those that remain legible within institutional frameworks.

Toward a more emancipatory feminist response

By diluting apartheid’s meaning, enabling substitution, and foreclosing more expansive accounts of gender and justice, proposals to recognise gender apartheid risk narrowing feminist politics at precisely the moment when a more structurally attentive response is most urgently required. As legal recognition rapidly gains institutional momentum, feminist engagement cannot treat criminalisation as self-evident or sufficient.

If feminist solidarity with Afghan women is to be meaningful, it must move beyond juridical expansion to confront the structural, geopolitical, and political-economic conditions that shape gendered domination, including the longer legacies of Western imperialism that contributed to the conditions under which the Taliban re-emerged. It must also engage seriously with feminist epistemologies and justice frameworks beyond liberal legalism, including Islamic feminist approaches that foreground collective agency and are rooted in more locally grounded knowledges and visions of justice.

Proposals to criminalise gender apartheid should, therefore, be approached with caution. Rather than expanding the catalogue of crimes while leaving underlying relations of domination intact, feminist engagement with international law should prioritise approaches that remain attentive to the analytical and political effects of substitution, acknowledge historical responsibility, and stay accountable to the anti-colonial struggles from which the language of apartheid itself emerged.