Three Definitions, One Choice: Defining Gender Apartheid in the Draft Crimes Against Humanity Treaty – Opinio Juris

Report on the Definition of Apartheid in the Draft Crimes Against Humanity Treaty and its Alignment with Sustainable Development Goals

Introduction: Aligning Global Justice with Sustainable Development Goals

As international negotiations proceed on a new treaty on Crimes Against Humanity (CAH), a critical issue has emerged that directly impacts the fulfillment of the Sustainable Development Goals (SDGs), particularly SDG 16 (Peace, Justice and Strong Institutions), SDG 5 (Gender Equality), and SDG 10 (Reduced Inequalities). The draft treaty’s definition of the crime of apartheid is rooted in an outdated legal framework that risks excluding vulnerable populations, including Palestinians, Afghan women and girls, and LGBTQI+ persons, from legal protection. This report analyzes the shortcomings of the current draft and evaluates proposed amendments to ensure the treaty serves as a robust instrument for global justice and sustainable development.

Analysis of the Draft Treaty’s Shortcomings in Relation to SDG Principles

The Current Definition of Apartheid: A Barrier to SDG 10 and SDG 16

The draft CAH treaty currently defines apartheid as inhumane acts “committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups.” This definition, derived from the Rome Statute, is based on antiquated assumptions that treat racial groups as biologically fixed categories. This approach presents a significant obstacle to achieving justice for all and reducing inequalities, as mandated by the SDGs.

• Exclusion of Vulnerable Groups: By relying on a narrow, biological concept of “race,” the definition fails to recognize systems of oppression based on socially constructed identities. This legal invisibility for groups such as Palestinians undermines the core principle of SDG 10 to reduce inequality within and among countries.
• Contradiction with Human Rights Law: Modern human rights jurisprudence, including interpretations by the UN Committee on the Elimination of All Forms of Racial Discrimination, affirms that race is a social construct. The draft treaty’s failure to incorporate this understanding weakens its institutional effectiveness, contrary to the aims of SDG 16.
• Lack of Interpretive Guidance: The draft treaty lacks a provision equivalent to Article 21 of the Rome Statute, which mandates interpretation in harmony with international human rights law. This absence encourages courts to adopt narrow, literal interpretations, further entrenching outdated concepts and leaving victims of complex oppression systems without recourse.

Evaluating Proposed Amendments for Gender Apartheid through the Lens of SDG 5

A Critical Review of Three Proposed Definitions

Several proposals have been advanced to codify gender apartheid within the treaty, directly addressing the mandate of SDG 5 to achieve gender equality and empower all women and girls. However, their formulation will determine whether the treaty effectively protects all victims or perpetuates existing exclusions.

1. Proposal 1: A Separate Crime of Gender Apartheid

   This proposal would create a new, standalone crime of “gender apartheid” by replacing “racial group” with “gender group” in the existing definition. While appearing to elevate gender-based harms, this approach is fundamentally flawed.

   • It imports the same outdated conceptual framework, risking an interpretation of “gender groups” as a fixed male-female binary. This would exclude transgender, non-binary, and other gender-nonconforming persons, failing the SDG 5 commitment to equality for all.
   • It fractures the legal concept of apartheid, forcing prosecutors to artificially separate racist and gendered oppression. This prevents accountability for intersectional harms, where systems of domination are unified, thereby failing to deliver comprehensive justice as envisioned in SDG 16.

2. Proposal 2: Expanding the Existing Apartheid Definition

   This proposal would amend the definition to include oppression “by one gender group over another gender group or groups.” While maintaining apartheid as a single crime, it retains critical weaknesses.

   • It preserves the exclusionary “group” language, failing to align with a modern, social-constructivist understanding of race and gender.
   • Its disjunctive structure (“racial” or “gender”) forces a false choice, obscuring the reality of intersectional systems of oppression, such as those experienced by Black women under apartheid in Southern Africa. This undermines the goal of SDG 10 to address multifaceted inequalities.

3. Proposal 3: Aligning Apartheid with Persecution-Based Protections

   This proposal redefines the crime as acts committed in a regime of systematic oppression “based on race or gender.” This formulation offers the most coherent and inclusive approach, fully aligning with SDG principles.

   • It shifts the focus from the victim’s inherent identity to the perpetrator’s discriminatory intent, recognizing that groups are socially constructed. This inclusive framework protects all victims, including LGBTQI+ persons and those targeted on political or ideological grounds.
   • It fully accommodates intersectionality, allowing for the prosecution of a single, unified crime of apartheid where racial and gendered oppression are intertwined. This reflects victims’ lived realities and strengthens accountability mechanisms, supporting SDG 16.
   • It harmonizes the definition of apartheid with the established crime of persecution, creating a more coherent and effective international legal framework.

The Path Forward: Civil Society and the Imperative for an Inclusive Treaty

The Role of Multi-Stakeholder Partnerships (SDG 17)

The development of the CAH treaty demonstrates the importance of SDG 17 (Partnerships for the Goals). Previous advocacy by a global coalition of civil society organizations successfully challenged an outdated, binary definition of “gender” in the draft treaty, leading the International Law Commission to affirm that gender is socially constructed. This success provides a model for how multi-stakeholder collaboration can ensure international law evolves to meet contemporary challenges.

Conclusion and Recommendations for an SDG-Compliant Framework

The negotiations for the CAH treaty represent a generational opportunity to modernize international criminal law and create a powerful tool for achieving the Sustainable Development Goals. Adopting an outdated and exclusionary definition of apartheid would represent a significant failure, undermining justice, equality, and the strength of global institutions. To ensure the treaty is fit for purpose, states must seize this moment to codify a definition that is inclusive, intersectional, and reflective of modern human rights principles.

• Recommendation 1: States Parties should adopt the third proposed definition, which defines apartheid based on systematic oppression “on race or gender grounds,” to ensure the protection of all victims.
• Recommendation 2: The final treaty text must explicitly recognize the socially constructed nature of targeted groups to align with SDG 10 and prevent the legal erasure of vulnerable populations.
• Recommendation 3: The legal framework must be capable of addressing intersectional forms of discrimination to provide comprehensive justice and fully realize the ambitions of SDG 5 and SDG 16.
• Recommendation 4: Continued partnership with civil society organizations, in the spirit of SDG 17, is essential to ensure the treaty remains a relevant and effective instrument for justice and accountability for all.

Analysis of Sustainable Development Goals in the Article

1. Which SDGs are addressed or connected to the issues highlighted in the article?

SDG 5: Gender Equality

• The article extensively discusses the need to codify “gender apartheid” in international law, focusing on the systematic oppression and domination experienced by women, girls, and LGBTQI+ persons, particularly in Afghanistan. It advocates for legal frameworks that protect against gender-based discrimination and violence, which is central to achieving gender equality.

SDG 10: Reduced Inequalities

• The core theme of the article is the fight against institutionalized regimes of systematic oppression and domination. It addresses inequality based on race (mentioning Palestinians and Black South Africans), gender, and intersecting identities. The push for an inclusive legal definition of apartheid directly targets the reduction of inequalities and the elimination of discriminatory laws and practices.

SDG 16: Peace, Justice, and Strong Institutions

• The article is fundamentally about strengthening international justice and legal institutions. It analyzes the drafting of a new treaty on Crimes Against Humanity (CAH), advocating for a robust and modern rule of law that provides access to justice for all victims of apartheid. It critiques outdated legal definitions and promotes the development of effective, accountable, and inclusive institutions at the international level.

2. What specific targets under those SDGs can be identified based on the article’s content?

SDG 5: Gender Equality

• Target 5.1: End all forms of discrimination against all women and girls everywhere. The article’s primary goal is to create a legal tool to prosecute and end the systematic discrimination inherent in gender apartheid, as experienced by Afghan women and girls.
• Target 5.2: Eliminate all forms of violence against all women and girls. The article references “state-sanctioned sexual violence, and other pervasive gender violence” as components of apartheid regimes that the proposed treaty aims to address.
• Target 5.c: Adopt and strengthen sound policies and enforceable legislation for the promotion of gender equality. The entire article is an argument for strengthening an international treaty (enforceable legislation) to better protect against gender-based crimes and promote equality by adopting a modern, inclusive definition of apartheid.

SDG 10: Reduced Inequalities

• Target 10.2: Empower and promote the social, economic and political inclusion of all, irrespective of… sex, race, ethnicity… or other status. The article advocates for the legal recognition and inclusion of marginalized groups who are victims of apartheid, including Palestinians, Afghan women, and LGBTQI+ persons, ensuring their suffering is not rendered invisible by outdated legal definitions.
• Target 10.3: Ensure equal opportunity and reduce inequalities of outcome, including by eliminating discriminatory laws, policies and practices. The central argument is to reform the draft CAH treaty to eliminate a definition of apartheid that is implicitly discriminatory by being outdated and exclusionary. The goal is to promote legislation that ensures equal protection and access to justice for all victims of systematic oppression.

SDG 16: Peace, Justice, and Strong Institutions

• Target 16.3: Promote the rule of law at the… international levels and ensure equal access to justice for all. The article directly addresses this target by focusing on the negotiation of an international law treaty. It argues that for the rule of law to be effective, it must provide equal access to justice for victims of all forms of apartheid, including those based on gender and intersecting grounds.
• Target 16.b: Promote and enforce non-discriminatory laws and policies for sustainable development. The advocacy for an inclusive, non-discriminatory definition of apartheid in the CAH treaty is a direct effort to promote and create an enforceable international law that is non-discriminatory.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

The article does not mention standard quantitative SDG indicators. However, it implies several qualitative and process-oriented indicators for measuring progress:

1. The legal definition of apartheid adopted in the final Crimes Against Humanity (CAH) treaty. This is the primary indicator. Progress would be measured by whether the final text moves away from the outdated, race-exclusive definition towards the third, more inclusive proposal that recognizes gender, intersectionality, and the social construction of groups.
2. Inclusion of language recognizing intersecting forms of discrimination. A key measure of success, as argued in the article, would be the treaty’s ability to allow for the prosecution of apartheid based on mutually reinforcing grounds, such as race and gender, as a single crime. The text of the treaty itself would be the indicator.
3. Legal recognition of victims based on socially constructed identities. Progress can be measured by whether the new legal framework, as interpreted by courts, recognizes victims like LGBTQI+ persons and Palestinians, whose persecution is based on socially constructed norms rather than outdated biological concepts of “groups.” This moves beyond the plain text to future jurisprudence based on the treaty.

4. Table of SDGs, Targets, and Indicators

Source: opiniojuris.org