Discussions and advocacy movements to codify the concept of ‘gender apartheid’ under international law have gained traction since the resurgence of the Talibans to power in Afghanistan in 2021 and the birth of the Woman, Life, Freedom movement in Iran in 2022. According to advocacy groups and legal scholars, the systemic mechanisms of women’s exclusion from the public sphere in those countries are akin to those faced by communities of colour during apartheid in South Africa. In March 2023, the global campaign #EndGenderApartheid was launched. I argue here that the timing of this campaign, coinciding with the discussions regarding the segregation imposed by Israel on the Occupied Palestinian Territories and Gaza, contribute to bringing necessary complexity and nuance to the process of defining and refining the concept of ‘apartheid’ under international human rights law.

First, let’s explore the case of ‘gender apartheid’ as a legal category. Amongst the most visible advocates for its codification in international law are Nobel Peace Prize winners Malala Yousafzai, Nadia Murad, Shirin Ebadi and Nargess Mohammadi, UN Women, and the Atlantic Council’s Strategic Litigation Project (SPL). In terms of concrete steps, the UN Women’s Working Group on Discrimination Against Women issued a statement in 2024 to urge the international community to recognize gender apartheid as a crime against humanity, whilst the Strategic Litigation Project, directed by the Iranian-American human rights lawyer Gissou Nia, has proposed an amendment to the definition of the crime of apartheid in the International Law Commission’s draft articles on the prevention and punishment of crimes against humanity to include gender-based apartheid in addition to racial apartheid. Prior to this, in 2023, the UN Special Rapporteur on the situation of human rights in Afghanistan, Richard Bennett, and the UN Women’s Working Group on Discrimination Against Women specifically suggested the following  legal definition of gender apartheid, adapted from the definition of racial apartheid in Article 7.2(h) of the Rome Statute of the International Criminal Court: ‘Inhumane acts … committed in the context of an institutionalized regime of systematic discrimination, oppression and domination by one gender group over any other gender group or groups,  and committed with the intention of maintaining that regime.’

The response to the movement has been mixed. As per a 2024 collective letter added to the #EndGenderApartheid campaign’s website,  some South African jurists and anti-apartheid experts support the endeavour. However, others deem the existing framework to prosecute the crime against humanity of gender persecution sufficient as it is, and consider the underlying logics and social implications of racial segregation and gender segregation too different to amalgamate under the same legal term. This risks appropriating the term ‘apartheid’ in a perhaps overly optimistic transnational fashion, disregarding the respective cultural contexts where these social phenomena grew. In this vein, criticism of this campaign as being a form of Western-imposed neo-colonial feminism has been put forward, in Western academia and within Iran and Afghanistan themselves—an argument often appearing in the context of transnational women’s rights advocacy. Whilst these arguments have the merit of showcasing cultural sensitivity, the usefulness of an additional legal framework for advocacy purposes and safeguarding women’s rights remains salient.

Important to note is that this campaign also came at a time when the International Court of Justice had been led to assess the possibility of formally recognising the situation in the Occupied Palestinian Territories as constituting a form of apartheid, which culminated in its July 2024 ruling (see the Declaration of Judge Brandt) affirming that the situation on the ground indeed qualified as such. This landmark decision may spark a trend towards expanding the use of the concept to refer not only to a historic era restricted to South Africa, but also to a legal category with broader reach and applicability. It also highlighted the need for an evolutive treaty interpretation of the constituent elements of the crime of apartheid. While this declaration was made in the context of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), it could set a precedent useful to advocate for the codification of gender apartheid into international law.

In a context in which the definition of apartheid extends to potentially include other forms of identity-based marginalization, such as gender, it would be interesting to see if the reasoning will eventually be taken further to include other identities protected under international human rights law, such as indigenous communities and disabled persons, which are to this day commonly segregated in educational settings across the globe. This could prove a desirable development, although the uniqueness of the South African experience still needs to be recognised.