Published by The Lawfare Institute
in Cooperation With
An international law and human rights expert, Karima Bennoune, called on the international community to codify gender apartheid into international law as a crime against humanity at a Sept. 26 UN Security Council briefing. This followed a paper she wrote detailing the same argument one year ago. Bennoune is not the only one who has argued for this shift. Other advocates include Executive Director of UN Women Sima Bahous, Pakistani activist Malala Yousafzai, and Hillary Clinton.
While it is critical to highlight the Taliban’s oppression of women in Afghanistan and to condemn it in the harshest terms, the gender apartheid approach is a Trojan horse that will cause more issues than it would solve.
In her speech before the Security Council, Bennoune implored world leaders to codify gender apartheid as a crime and thereby criminalize the recognition and normalization of the Taliban regime. She refers to the criminalization of the racial apartheid of South Africa, which if applied in Afghanistan, would mean that no state could be “complicit in or normalize” Taliban policies—effectively blocking their recognition while these policies persist. Bennoune also declared that the gender apartheid approach would not isolate Afghanistan and that aid delivery would still be possible, and she claimed that the oppression of women was central to the ideology of the Taliban.
She sets forth more problematic prescriptions in her paper. These include calls to declare the Taliban as “enemies of humanity,” allocate Afghanistan’s UN seat to the Taliban’s opposition, and criminalize international engagement with the Taliban.
Mahmood Mamdani, a renowned scholar on colonialism, once wrote that “every major intervention has been justified as humanitarian.” The attempts to codify the situation in Afghanistan as a crime against humanity echo the not-so-recent history of the United States bombing Afghanistan and Iraq in part to liberate their people. Crimes against humanity invoke under international law the Responsibility to Protect (R2P) norm—under which UN members commit to safeguard other states’ populations when the governing state fails to protect its people from “genocide, war crimes, ethnic cleansing, and other crimes against humanity.”
Although the purpose of this norm is to protect vulnerable populations, it empowers states to disregard a country’s sovereignty and take military action under the banner of rescuing said populations; the most recent instance of such an intervention was in Libya, the consequences of which continue to play out before our eyes. The initial UN Security Council resolution (Resolution 1970) supporting the Libya intervention was framed in terms of R2P, which laid the grounds for Resolution 1973 that initiated the no-fly zone followed by direct military intervention by NATO.
Bennoune’s demand in her paper that the Taliban be declared as hostis humani generis—the Latin term for “enemies of humanity”—must be taken seriously. This term, originally applied to pirates, means that individuals are not legally protected by any jurisdiction and can be prosecuted (read: killed) by any nation. The enemies of humanity classification was also the basis for the suspension of international law and the rights of prisoners when enemy combatants were detained and tortured as part of U.S. operations in the Afghanistan and Iraq wars.
Codification of gender apartheid lays the grounds for further interventions and human rights abuses, similar to the ones Western powers have committed over the past two decades. This would create a slippery slope for world powers to ignore cultural relativism and selectively condemn practices. Once the international community obtains the right to decide which social policies are acceptable, it may attempt to impose a one-size-fits-all culture on weaker states. Though the current ban on higher education and work in specific sectors imposed by the Taliban is destructive and must be repealed, this approach will create a movable line in the sand ripe for exploitation. It will also selectively condemn the Taliban and open Afghanistan to international intervention while ignoring other richer, stronger regimes that also violate women’s rights.
The settler colonial origins of the “apartheid” term matter here too. The apartheid in South Africa was carried out by a colonizing population imposing itself and its rules on an indigenous people. The use of the term in the context of Afghanistan risks oversimplifying a very complex situation. It assumes that there is an indigenous and organized alternative to the Taliban, as there was in South Africa. The Taliban is the symptom of a deep, cultural problem that can be addressed only internally. Such an approach risks bundling together the prominent Taliban leaders who have vocally criticized the current policies of their regime with those drafting these policies under the false assumption that such practices are at the core of the Taliban’s ideology.
Afghanistan has suffered a crisis of representation since the overthrow of its king in the 1970s. The monarchy had few challengers to its legitimacy. After it ended, consecutive regimes have claimed to democratically represent the Afghan people. However, this “democracy” has suffered from significant election rigging and corruption. The proposal to give away Afghanistan’s representation—through allocating its UN seat to the Taliban’s opposition—assumes the existence of a viable and obvious popular alternative to the Taliban, which does not exist. Backing one side of this internal political conflict also risks choosing between individuals who have time and again failed the Afghan nation, some of whom are actively pursuing a civil war.
Though Bennoune in her speech called on the international community to criminalize the recognition of the Taliban through the gender apartheid approach without isolating Afghan citizens, she states in her paper that she wants to criminalize engagement with the Taliban as well. International aid cannot be delivered without engagement with the Taliban. Additionally, the emergency aid that is currently being disbursed is insufficient to address the depravity of the current situation. If there is no engagement, moving beyond this emergency aid to discussions of development aid will be impossible.
I’m not claiming that engagement with the Taliban has produced the results we desire, but we should not give up on that project completely, as this approach proposes. Confidence building and achieving tangible results will take time. By shutting down engagement and not explicitly defining the mechanisms with which these draconian policies would change, Bennoune’s approach paves the way for either intervention or a civil war—both of which would only increase the suffering of the Afghan people. If the current pressure on the Taliban has only made their leader’s policies stricter, then there is little wisdom in pushing it to the extreme and expecting different results.
The unfortunate reality is that the Taliban won the war and is in power in Afghanistan today. Many Afghans like myself wanted the foreign occupation to end but wanted a better outcome than the one we are currently facing. We have pushed back against the Taliban policies from within the country and have set requirements for the Taliban to meet before they can be accepted as a legitimate government of Afghanistan. Core among these conditions is delivering on the guarantee the Taliban had provided to safeguard the rights to education and work for women and girls during their negotiation in Qatar before the fall of Kabul. Any viable change has to come from within the country. The results of our pressure are visible in the vocal opposition of prominent Taliban leaders to these policies. The Afghan nation has a long history of obtaining concessions from its leaders or removing them if they refuse to budge. The examples of the uprising against King Amanullah Khan’s social policies and the mobilization of the nation against the communist regime in the 1980s are testaments to that. The international community needs to let the Afghan people decide their own fate and not choke them further with sanctions and interventions that such laws advocate for.
There are many political reasons why the campaign for declaring the Taliban regime a gender apartheid is not likely to succeed, though regardless of the likelihood of its success, it is essential to call out potential international legal mechanisms that would enable states to eradicate cultural relativism and pave the path for further intervention in the name of human rights. The horrors of colonialism and the war on terror should teach us to be weary of international laws that are meant for the global south alone.