In 1998, the Rome Statute codified rape, sexual slavery, and forced pregnancy as crimes against humanity, making strides in international criminal law’s treatment of crimes against women. Yet more than two decades later, the Statute remains silent on an emergent system of oppression: from Afghanistan to Iran, governments are not merely discriminating against women, they are governing through a systematic and institutionalised regime of gender-based domination. This regime—where state law and bureaucratic infrastructure are weaponised to exclude women from education, employment, public life, and bodily autonomy—is not incidental. It is deliberate, structural, and enduring. This is gender apartheid: an institutionalised regime of systematic oppression and domination by one gender over another.
Gender apartheid is comparable in its form and effect to the racial apartheid once prosecuted in South Africa. Racial apartheid is now recognised as a jus cogens norm—a peremptory rule of international law from which no derogation is permitted.
However, gender apartheid has no defined status under international criminal law, despite growing recognition as a structural regime of oppression. While the Rome Statute prohibits gender-based persecution under Article 7(1)(h), this provision addresses targeted acts linked to other crimes rather than regimes of governance built on structural gender domination. The Statute defines apartheid solely in terms of race under Article 7(1)(j), leaving a critical doctrinal gap for addressing gender apartheid as a standalone crime against humanity.
This blog post argues that international criminal law—not human rights law—is the necessary legal regime to confront gender apartheid, and that the Rome Statute must evolve to name and prosecute it. Codifying gender apartheid is not merely a symbolic act. It would fill a prosecutorial void, recognise the structural nature of gender-based oppression, and affirm that gender domination—like racial domination—is a crime against humanity. In doing so, it would bring the Rome Statute into closer alignment with the principle of equality that underpins its object and purpose.
Legal Definition and Parallels to Racial Apartheid
To codify gender apartheid under international criminal law, we must first define it in legal terms. As currently understood by jurists, scholars, and human rights bodies, gender apartheid refers to an institutionalised regime of systematic oppression and domination by one gender over another, most often by men over women and girls, through the instrumental use of state law, policy, and coercive structures. It is not merely a series of discriminatory acts, but a system of governance in which subordination is sustained through legal design and enforced through state institutions.
This concept finds an analogue in the existing legal definition of apartheid under the Rome Statute Article 7(1)(h), which characterises apartheid as a crime against humanity involving ‘an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.’
While the Statute restricts this provision to racial groups, nothing in the logic of the crime itself necessitates that limitation. Indeed, the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention) defines apartheid as encompassing ‘similar policies and practices of racial segregation and discrimination as practiced in southern Africa,’ but does not expressly preclude analogous regimes based on gender or other identity categories. Article II of the Apartheid Convention outlines methods of domination—legislative measures, arbitrary arrest, and denial of basic freedoms—that are disturbingly familiar in gender-based contexts.
Gender-based regimes of domination are increasingly understood to mirror the legal architecture of racial apartheid. Yet gendered harms often remain ‘formally invisible’ within legal frameworks that were never designed to recognise systemic subordination. When apartheid is racial, the legal structure is exposed. When it is gendered, the law itself becomes the mechanism that conceals it. Despite this parallel, international criminal law has yet to meaningfully engage with gender apartheid as a distinct mode of persecution.
While the ICC has taken meaningful steps to address gender-based harms—most notably through the Office of the Prosecutor’s 2014 Policy Paper on Sexual and Gender-Based Crimes—its current legal and prosecutorial framework remains rooted in categories such as sexual violence and persecution. These frameworks, while essential, do not fully capture state-led systems of gender-based governance designed to exclude and subordinate women. Gender apartheid, as a structural mode of domination, demands recognition as a standalone crime beyond the existing interpretive scope of the Rome Statute.
This gap creates a doctrinal silence: the Rome Statute, while expansive in its recognition of sexual and gender-based violence, lacks a category to capture governance systems that organise around gender-based exclusion as a mode of rule. This leaves prosecutors and victims alike without the legal vocabulary to describe, let alone prosecute, governments that deliberately and structurally exclude women from public life.
Why International Criminal Law—Not Human Rights Law—Is the Right Framework
International human rights law provides critical normative protections for women and girls. Instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women(CEDAW, Articles 2 and 5) and the International Covenant on Civil and Political Rights (ICCPR, Articles 2(1), 3, and 26) obligate states to prevent, investigate, and redress gender-based discrimination.
However, human rights treaty mechanisms are principally dialogic, not punitive: CEDAW and similar treaty bodies function through dialogue with states, issuing non-binding observations and recommendations, but lack coercive authority to enforce compliance. These instruments are designed to monitor and influence state behavior through dialogue to diplomats or other state officials, not to prosecute individual perpetrators. This is why human rights frameworks fall short in holding individuals or regimes criminally accountable.
By contrast, international criminal law shifts the axis of accountability from states to individuals, and from violation to criminality. It establishes that certain forms of harm—when systematic, structural, and intentional—are not merely breaches of human rights obligations, but crimes against humanity.
Codifying gender apartheid within the Rome Statute would therefore do what human rights regimes cannot: assign personal criminal responsibility to those who design, implement, and sustain gender-based systems of oppression.
This distinction is not merely theoretical. Consider the case of racial apartheid in South Africa. While condemned under human rights treaties for decades, it was only through criminal accountability—under both domestic and universal jurisdiction frameworks—that the regime’s architects were legally exposed. The Rome Statute’s recognition of apartheid as a crime against humanity was grounded in the understanding that certain forms of state-organised domination must be met not only with moral rejection but with legal punishment.
Moreover, the Rome Statute already contains the tools for such an expansion. Article 21(3) mandates that the Statute be interpreted and applied consistently with internationally recognised human rights norms, including the principle of non-discrimination. And while Article 7(1)(h) prohibits gender-based persecution, it does not reach the structural dimension of governance regimes that organise public life around the subordination of women.
Persecution requires a connection to other crimes and often arises in the context of conflict. Apartheid, by contrast, captures systems of oppression as crimes in themselves, even in peacetime. It is this legal framing of domination as a standalone criminal wrong that is missing from current gender provisions under the Statute. Codifying gender apartheid as an international crime would close this conceptual and prosecutorial gap.
Systems of Domination: Gender Apartheid in Practice
While the term ‘gender apartheid’ is not yet codified in international criminal law, its manifestation in state governance is neither abstract nor speculative. In several jurisdictions, gender subordination is not simply tolerated—it is deliberately constructed and enforced through law. These are not cases of sporadic discrimination; they are examples of state-organised systems of gender-based domination, bearing the hallmark features of apartheid as understood in international legal doctrine.
Afghanistan: A Totalising Regime of Gender-Based Erasure
Since the Taliban’s return to power in 2021, Afghanistan has become the most paradigmatic case of gender apartheid in the twenty-first century. In less than three years, the regime has issued more than 100 edicts dismantling women’s access to education, employment, freedom of movement, public space, and bodily autonomy. Girls are barred from secondary schools and universities; women are prohibited from working for NGOs and most government offices; they are banned from parks, gyms, and even long-distance travel without a male guardian. These edicts are not disconnected policies. They represent an institutional ideology in which the state’s function is inseparable from the subordination of women.
As UN Special Rapporteur Richard Bennett reported in June 2024, the Taliban’s system of governance constitutes a system of institutionalised and systematic discrimination and oppression that ‘may amount to gender apartheid.’ The Afghan Independent Human Rights Commission, Amnesty International, and UN have likewise urged the international legal community to recognise this regime not merely as discriminatory but as structurally and ideologically gendered in a manner akin to apartheid. The scale and intentionality of the exclusions—executed through official decrees and backed by law enforcement—demonstrate that this is not just human rights abuse. It is state-led legal subjugation.
Iran: The Law as a Tool of Gendered Repression
In the Islamic Republic of Iran, the state’s legal apparatus is likewise central to the control and subordination of women (see commentary here and here). The morality police, tasked with enforcing compulsory veiling and modesty codes, operate as a quasi-military force rooted in statutory authority. Women’s dress, behavior, and mobility are regulated not just by custom but by codified law, with punishments ranging from fines to detention to physical violence.
The death of Mahsa Jina Amini in September 2022 while in custody of the morality police sparked a global uprising—but it also underscored the legalisation of gender control in the Iranian state. In 2024 and 2025, the UN Fact-Finding Mission on Iran concluded that the state’s legal framework, including criminal penalties for dress-code violations and restrictions on women’s political participation, constitutes a sustained apparatus of repression. The Mission’s findings suggest that Iran’s policies are not ad hoc but structural: the law itself is wielded to define, contain, and subordinate the role of women in society.
The Iranian case complicates narratives that see gender apartheid only in theocratic or extremist regimes. Here, a sophisticated state employs law, surveillance, and policing to entrench gender hierarchies. The legal scaffolding may differ in appearance from that of the Taliban, but the outcome—systemic gender domination by design—is disturbingly similar.
Saudi Arabia: Reform without Dismantling
Saudi Arabia has made incremental reforms to its male guardianship system in recent years, lifting some travel restrictions and permitting women to drive. However, beneath the surface, a deeply embedded legal regime of gender control persists. Women still face legal and practical obstacles in accessing healthcare, marrying, or filing legal claims without a male guardian’s permission. Despite state narratives of modernisation, legal infrastructure continues to reflect a worldview in which male authority over women is not only normative but legally enforced.
International bodies have noted that reforms in Saudi Arabia have not eliminated the gender-based legal hierarchy, but merely softened its expression. The persistence of statutory guardianship, personal status laws favoring men, and gender-based restrictions in the justice system together form a state-sponsored regime of inequality that limits women’s autonomy not incidentally, but structurally. In this way, Saudi Arabia illustrates how gender apartheid can endure even under the guise of reform, when the legal foundation of gender domination remains intact.
Conclusion
The examples of Afghanistan, Iran, and Saudi Arabia expose gender apartheid not as episodic abuse, but as a structural mode of governance. Yet without codification, international criminal law remains silent in the face of systemic gender domination. The Rome Statute’s definition of apartheid must evolve beyond race to reflect contemporary realities of oppression. Article 21(3) already requires gender-equal interpretation; codifying gender apartheid would fulfill that mandate and empower future ICC prosecutions. Just as racial apartheid demanded legal recognition to end impunity, so too must gender apartheid be named, defined, and prosecuted as a crime against humanity under international criminal law.
Axana Soltan JD, LLM, MPP is an international lawyer specialising in international criminal law, human rights and gender justice, and is at the forefront of trying to codify gender apartheid as a crime against humanity. She is a Eisenhower Scholar (2025) at the University of Oxford, a Human Rights Fellow at Brown University, and currently serves as a Legal Fellow at the UN Office of the High Commissioner.