Professor Karima Bennoune addresses audience alongside panelists, from left, Sima Samar, former minister for women’s affairs (Afghanistan) and former chair of the Afghan Independent Human Rights Commission; Professor Valerie Oosterveld, University of Western Ontario Faculty of Law; and Richard Bennett, UN special rapporteur on the situation of human rights in Afghanistan.
By Bob Needham
Michigan Law
The fight against gender apartheid—such as it is practiced by the Taliban in Afghanistan—should pursue multiple tracks, according to the panelists at a recent conference at Michigan Law.
Panelists said the relevant strategies include gender-inclusive interpretation of existing international law, the drafting of an experts Declaration on Gender Apartheid, and explicit codification in a new United Nations treaty on crimes against humanity.
Organized by Professor Karima Bennoune, ’94, and hosted by the Law School, the event, “Countering Gender Apartheid with International Law: A Strategic Convening,” brought together UN experts, frontline women’s human rights defenders, academics, and other experts working against gender apartheid, as practiced in Afghanistan and elsewhere in the world.
In her introductory remarks, Bennoune, a leading international scholar on this issue, defined gender apartheid as “a system of governance based on laws and or policies that imposes systematic segregation on women—and may also systematically exclude women from public spaces and spheres. Adapted from the international law on racial apartheid, the concept of gender apartheid emphasizes that discrimination has been made the system of governance itself, requiring an effective international response to end it.”
Calls to action
Bennoune called the gathering “a sign of hope and commitment to defend equality in difficult times.” She added that those on the front lines of the struggle “do not need saving or pity, but they do need and they deserve empathy and concrete international solidarity. Our efforts here today are meant to support them and to offer great respect for their leadership, their expertise, and their heroism.”
The conference got underway with a pair of compelling video addresses. First, an anonymous Afghan woman spoke about conditions in her country.
“I speak from inside Afghanistan, a place where the reality of life for women is not only oppressive, it is life threatening. I speak to you not just as a woman of Afghanistan but as someone who also witnesses their suffering every single day simply for being women,” she said.
Then, human-rights activist and Nobel Laureate Malala Yousafzai offered words of support and encouragement.
“One of the most powerful tools we have is international law. Naming gender apartheid as a crime against humanity is not just a matter of legal language; it is a commitment to justice, accountability, and restoring the rights of millions of girls who are being denied an education and the future,” she said.
A two-track strategy
Bennoune and other speakers highlighted two specific avenues to pursue the fight through international law: interpreting existing international law as applying to gender apartheid and including gender apartheid in the upcoming UN treaty on crimes against humanity.
The expansion of existing law could be supported by an international declaration on gender apartheid, which is currently being drafted by human rights and legal experts. In her video address, Iranian human rights lawyer and Nobel Laureate Shirin Ebadi expressed support for the proposed declaration.
“A declaration on gender apartheid could enhance the normative value of international law by clarifying and reinforcing the understanding of the term as a systematic and institutionalized form of gender discrimination,” said panelist Azadah Raz Mohammad of the End Gender Apartheid Campaign, speaking remotely from Australia. “It could particularly play a strategic and complementary role in paving the way for binding legal instruments…and could serve as a vital advocacy tool.”
The drafting of a UN treaty on crimes against humanity, meanwhile, was authorized in a resolution approved last November and will be negotiated starting next year.
“This will be the first-ever multilateral treaty for crimes against humanity that entails state responsibility as well as individual responsibility for the prevention as well as punishment of these crimes,” said panel chair Hannah Garry, a professor at the University of Southern California Gould School of Law and director of the International Human Rights Clinic.
Garry noted that activists in the 1990s also described the Taliban’s treatment of women and girls as having “the same character and gravity as apartheid.…In that view, recognizing such a crime against humanity is necessary for filling a gap in international law.” This has led to the current effort to incorporate gender apartheid into the UN treaty; several top UN officials and member states have already signaled support for the effort, she noted.
An “all-tools” approach
In addition to these two primary efforts, several panelists argued that activists must use all other available tools to push the fight forward.
Richard Bennett, the UN special rapporteur on human rights in Afghanistan, expressed deep concern about “the creeping normalization of the de facto authority of the Taliban and what I sometimes observe as framing of Afghanistan as a lost cause.
“Let me be clear: Afghanistan is not a lost cause. It’s a test. A test for whether the world will stand firm against gender persecution and gender apartheid…and a test of whether we are prepared to challenge the impunity that has perpetuated violence for decades.
“How do we stop Afghanistan becoming a lost cause? By using every tool at our disposal.” Bennett listed a number of such tools, including sustained international pressure, including for accountability; expanding humanitarian assistance; strengthened support for Afghan women-led NGOs; and Islam-based challenges to the Taliban’s version of Sharia.
Other panelists added to the list of additional tools, such as:
Efforts to hold the Taliban accountable in the International Criminal Court (ICC). In the ICC, which prosecutes individuals, a yearslong investigation has led to the recent issuance of arrest warrants for two Taliban leaders.
“This is a step forward toward recognizing harms carried out by the Taliban and legally naming them as crimes, specifically as the crime against humanity of persecution,” said Professor Valerie Oosterveld of the University of Western Ontario Faculty of Law.
Filing a case in the International Court of Justice (ICJ). Last year four countries announced that they would seek accountability for Taliban violations of the UN Convention on the Elimination of All Forms of Discrimination against Women, possibly in proceedings before the ICJ, which hears cases between states. “There are many potential benefits stemming from filing a case before the ICJ, one of which is that if the ICJ finds a violation, this will provide a very solid legal ground for states to take action against the Taliban,” Oosterveld said.
A people’s tribunal—a symbolic, court-like body run by citizens—for the women of Afghanistan. Haroon Mutasem, a research fellow at Humboldt University of Berlin and a consultant for the tribunal efforts, said that after first considering an independent effort, organizers are now working with the Permanent People’s Tribunal. In the case of Afghanistan, such a body “allows women and girls from the country to actually be heard,” he said.
Prosecutors and judges have been appointed, and an indictment has been submitted, with hearings taking place in early October.
Insights from South Africa
Panelist Penny Andrews, the John Marshall Harlan II Professor of Law and director of the Racial Justice Project at New York Law School, is an expert on the judiciary in South Africa. Previously, she served as the first Black dean at the University of Cape Town Faculty of Law.
Andrews offered some lessons from the anti-apartheid movement in South Africa that apply to the current struggle: the importance of creating a long-term international consensus, and of building a coalition with allies around the world.
She also offered some thoughts on why many South Africans support the expansion of the term “apartheid” to apply to gender-based oppression.
“South Africans recognize—because of our own history and our own struggle—that the structural discrimination, subordination, and violence against women, particularly in Afghanistan, is akin to the plight of black South Africans under apartheid. Gender apartheid stands out as unique and pernicious in intent and purpose, just like racial apartheid was,” she said. “The vision of the state was about suppressing Blacks in the same way that the vision in Afghanistan is about suppressing women.”
Despite the difficult situation on the ground—worsened in the weeks since the conference by sporadic internet cuts in Afghanistan—the meeting’s message aimed to be one of hope and reaffirmation of concrete possibilities for action through international law. As Nobel Laureate Shirin Ebadi stressed in her video remarks, “Gender apartheid must be recognized in international law. Until that day comes, women will not stop fighting. And I know we will win, sooner or later. Victory will be ours.”
In addition to the University of Michigan Law School, the conference was co-sponsored by U-M Center for South Asian Studies, U-M Donia Human Rights Center, U-M Weiser Diplomacy Center, the Afghan Institute for Strategic Studies, Nazra for Feminist Studies, the Organization for Policy Research and Development Studies, the University of Southern California’s Gould School of Law, and the American Society of International Law along with its Women in International Law Interest Group.
Michigan Law
The fight against gender apartheid—such as it is practiced by the Taliban in Afghanistan—should pursue multiple tracks, according to the panelists at a recent conference at Michigan Law.
Panelists said the relevant strategies include gender-inclusive interpretation of existing international law, the drafting of an experts Declaration on Gender Apartheid, and explicit codification in a new United Nations treaty on crimes against humanity.
Organized by Professor Karima Bennoune, ’94, and hosted by the Law School, the event, “Countering Gender Apartheid with International Law: A Strategic Convening,” brought together UN experts, frontline women’s human rights defenders, academics, and other experts working against gender apartheid, as practiced in Afghanistan and elsewhere in the world.
In her introductory remarks, Bennoune, a leading international scholar on this issue, defined gender apartheid as “a system of governance based on laws and or policies that imposes systematic segregation on women—and may also systematically exclude women from public spaces and spheres. Adapted from the international law on racial apartheid, the concept of gender apartheid emphasizes that discrimination has been made the system of governance itself, requiring an effective international response to end it.”
Calls to action
Bennoune called the gathering “a sign of hope and commitment to defend equality in difficult times.” She added that those on the front lines of the struggle “do not need saving or pity, but they do need and they deserve empathy and concrete international solidarity. Our efforts here today are meant to support them and to offer great respect for their leadership, their expertise, and their heroism.”
The conference got underway with a pair of compelling video addresses. First, an anonymous Afghan woman spoke about conditions in her country.
“I speak from inside Afghanistan, a place where the reality of life for women is not only oppressive, it is life threatening. I speak to you not just as a woman of Afghanistan but as someone who also witnesses their suffering every single day simply for being women,” she said.
Then, human-rights activist and Nobel Laureate Malala Yousafzai offered words of support and encouragement.
“One of the most powerful tools we have is international law. Naming gender apartheid as a crime against humanity is not just a matter of legal language; it is a commitment to justice, accountability, and restoring the rights of millions of girls who are being denied an education and the future,” she said.
A two-track strategy
Bennoune and other speakers highlighted two specific avenues to pursue the fight through international law: interpreting existing international law as applying to gender apartheid and including gender apartheid in the upcoming UN treaty on crimes against humanity.
The expansion of existing law could be supported by an international declaration on gender apartheid, which is currently being drafted by human rights and legal experts. In her video address, Iranian human rights lawyer and Nobel Laureate Shirin Ebadi expressed support for the proposed declaration.
“A declaration on gender apartheid could enhance the normative value of international law by clarifying and reinforcing the understanding of the term as a systematic and institutionalized form of gender discrimination,” said panelist Azadah Raz Mohammad of the End Gender Apartheid Campaign, speaking remotely from Australia. “It could particularly play a strategic and complementary role in paving the way for binding legal instruments…and could serve as a vital advocacy tool.”
The drafting of a UN treaty on crimes against humanity, meanwhile, was authorized in a resolution approved last November and will be negotiated starting next year.
“This will be the first-ever multilateral treaty for crimes against humanity that entails state responsibility as well as individual responsibility for the prevention as well as punishment of these crimes,” said panel chair Hannah Garry, a professor at the University of Southern California Gould School of Law and director of the International Human Rights Clinic.
Garry noted that activists in the 1990s also described the Taliban’s treatment of women and girls as having “the same character and gravity as apartheid.…In that view, recognizing such a crime against humanity is necessary for filling a gap in international law.” This has led to the current effort to incorporate gender apartheid into the UN treaty; several top UN officials and member states have already signaled support for the effort, she noted.
An “all-tools” approach
In addition to these two primary efforts, several panelists argued that activists must use all other available tools to push the fight forward.
Richard Bennett, the UN special rapporteur on human rights in Afghanistan, expressed deep concern about “the creeping normalization of the de facto authority of the Taliban and what I sometimes observe as framing of Afghanistan as a lost cause.
“Let me be clear: Afghanistan is not a lost cause. It’s a test. A test for whether the world will stand firm against gender persecution and gender apartheid…and a test of whether we are prepared to challenge the impunity that has perpetuated violence for decades.
“How do we stop Afghanistan becoming a lost cause? By using every tool at our disposal.” Bennett listed a number of such tools, including sustained international pressure, including for accountability; expanding humanitarian assistance; strengthened support for Afghan women-led NGOs; and Islam-based challenges to the Taliban’s version of Sharia.
Other panelists added to the list of additional tools, such as:
Efforts to hold the Taliban accountable in the International Criminal Court (ICC). In the ICC, which prosecutes individuals, a yearslong investigation has led to the recent issuance of arrest warrants for two Taliban leaders.
“This is a step forward toward recognizing harms carried out by the Taliban and legally naming them as crimes, specifically as the crime against humanity of persecution,” said Professor Valerie Oosterveld of the University of Western Ontario Faculty of Law.
Filing a case in the International Court of Justice (ICJ). Last year four countries announced that they would seek accountability for Taliban violations of the UN Convention on the Elimination of All Forms of Discrimination against Women, possibly in proceedings before the ICJ, which hears cases between states. “There are many potential benefits stemming from filing a case before the ICJ, one of which is that if the ICJ finds a violation, this will provide a very solid legal ground for states to take action against the Taliban,” Oosterveld said.
A people’s tribunal—a symbolic, court-like body run by citizens—for the women of Afghanistan. Haroon Mutasem, a research fellow at Humboldt University of Berlin and a consultant for the tribunal efforts, said that after first considering an independent effort, organizers are now working with the Permanent People’s Tribunal. In the case of Afghanistan, such a body “allows women and girls from the country to actually be heard,” he said.
Prosecutors and judges have been appointed, and an indictment has been submitted, with hearings taking place in early October.
Insights from South Africa
Panelist Penny Andrews, the John Marshall Harlan II Professor of Law and director of the Racial Justice Project at New York Law School, is an expert on the judiciary in South Africa. Previously, she served as the first Black dean at the University of Cape Town Faculty of Law.
Andrews offered some lessons from the anti-apartheid movement in South Africa that apply to the current struggle: the importance of creating a long-term international consensus, and of building a coalition with allies around the world.
She also offered some thoughts on why many South Africans support the expansion of the term “apartheid” to apply to gender-based oppression.
“South Africans recognize—because of our own history and our own struggle—that the structural discrimination, subordination, and violence against women, particularly in Afghanistan, is akin to the plight of black South Africans under apartheid. Gender apartheid stands out as unique and pernicious in intent and purpose, just like racial apartheid was,” she said. “The vision of the state was about suppressing Blacks in the same way that the vision in Afghanistan is about suppressing women.”
Despite the difficult situation on the ground—worsened in the weeks since the conference by sporadic internet cuts in Afghanistan—the meeting’s message aimed to be one of hope and reaffirmation of concrete possibilities for action through international law. As Nobel Laureate Shirin Ebadi stressed in her video remarks, “Gender apartheid must be recognized in international law. Until that day comes, women will not stop fighting. And I know we will win, sooner or later. Victory will be ours.”
In addition to the University of Michigan Law School, the conference was co-sponsored by U-M Center for South Asian Studies, U-M Donia Human Rights Center, U-M Weiser Diplomacy Center, the Afghan Institute for Strategic Studies, Nazra for Feminist Studies, the Organization for Policy Research and Development Studies, the University of Southern California’s Gould School of Law, and the American Society of International Law along with its Women in International Law Interest Group.
Metra Mehran of the End Gender Apartheid Campaign chaired a
panel that discussed the vital alliance between international lawyers
and frontline women human rights defenders.
Professor
Rangita de Silva de Alwis of the University of Pennsylvania Law School
is a member of the UN Committee on the Elimination of Discrimination
against Women.
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