Shiva Amiri
Amiri Law Firm P.C., Thornhill
IBA Human Rights Law Committee Website Officer

At the 2024 IBA Annual Conference in Mexico City, I joined a panel on strategic litigation hosted by the IBA Human Rights Law Committee to speak about gender apartheid in Iran and Afghanistan. I was born in Iran and have been living in Canada for over 20 years. I have personally experienced the consequences of this system of repression. Each time I returned, I was detained for ‘improper’ hijab – an accusation rooted not in morality, but in a deliberate political strategy to control and intimidate. These experiences are not exceptional; they are the norm for many women under regimes that institutionalise gender-based oppression.

1. Why define gender apartheid under international law?

Gender apartheid should be recognised and codified as a distinct crime under international law. While the Rome Statute of the International Criminal Court already includes persecution as a crime against humanity (Article 7(1)(h)), including persecution on gender grounds (read with Article 7(3)), it does not explicitly define gender apartheid as a separate offence. The term ‘gender apartheid’ is increasingly used to describe institutionalised systems of gender-based domination – analogous in structure to racial apartheid – implemented through state laws, policies and enforcement mechanisms that systematically exclude women and girls from public life. Advocates and legal scholars have called for its formal recognition, either through amendment of the Rome Statute or by including it in a future UN Crimes Against Humanity treaty now under discussion. Such inclusion would not be merely symbolic: it would clarify the applicable legal framework, strengthen states’ obligations to prevent and punish such conduct through domestic criminalisation and cooperation measures and support more consistent accountability efforts across jurisdictions.

Unlike many prosecutions of gender-based violence that focus on discrete incidents, gender apartheid concerns an institutionalised architecture of laws, policies and enforcement practices that systematically segregate and subordinate women and girls. As with the international legal treatment of racial apartheid, naming and defining the conduct as a specific crime can help delegitimise the underlying system and sharpen the analysis of its constituent ‘inhumane acts’ and discriminatory purpose. A clear legal articulation of gender apartheid would assist courts, investigators and advocates in assessing patterns of exclusion and domination as a coherent regime, and – depending on jurisdictional bases (ie, where and on what legal basis these crimes can be tried, such as the ICC, domestic Courts exercising territorial or universal jurisdiction or other competent mechanisms) and implementing law – support accountability for responsible officials and other perpetrators who contribute to or enforce that system.

This urgency is acute in Iran and Afghanistan. In Iran, restrictions are frequently framed in religious terms, yet they are operationalised through state policy to control public life and political space. Iran’s historical record contains repeated and culturally resonant examples of women exercising public authority – holding property, directing economic life, shaping systems of governance and leadership and, at times, taking on military leadership. While women’s status and legal rights varied across periods and institutions, these examples demonstrate that women’s political agency in Iran has deep historical precedent and is not a modern Western import. The scale and intensity of contemporary restrictions suggest the regime views women’s public participation as a political threat. In Afghanistan, the systematic exclusion of women and girls from education, employment, movement and public presence similarly functions as an institutional project of domination and control, not a series of isolated restrictions.

Hijab has become the visible battleground of this struggle. In my view, from the earliest periods of Islamic governance, women’s dress – including hijab – has been manipulated for political ends. While I deeply respect women who wear hijab out of personal conviction, coercive enforcement transforms a spiritual symbol into a tool of subjugation. I also reject the claim that compulsory veiling is a settled religious obligation: there is substantial Islamic scholarship disputing that the Qur’an mandates hijab in the form enforced by contemporary regimes. In any event, a state’s coercive enforcement of dress has no legitimacy as ‘faith’ when it is implemented through punishment and exclusion. Accountability, however, does not rest with the state alone. As an Iranian woman, it is necessary to say what outsiders often cannot say credibly: coercion persists not only through state force, but through social consent, sometimes reproduced by women themselves. The coercive power is exercised by the state, but the social legitimacy that sustains it can be reproduced within families and communities. Social norms are reproduced in families and communities, and women – like men – can perpetuate them, including by normalising compulsory veiling and transmitting it to daughters as ‘virtue’ rather than control. For that reason, Muslim women who wear hijab by choice should say so clearly and publicly, affirming without ambiguity that their daughters and others have full agency to decide differently; without that clarity, internalised oppression can be passed to future generations, prolonging the very systems we seek to dismantle.

Activists like Fatemeh Sepehri embody this resistance. She wears the hijab, yet has publicly declared that her daughter is under no obligation to do so. Sepehri’s courage – now expressed from within prison walls – demonstrates that liberation begins with self-awareness and with a refusal to pass on patriarchal control under the guise of faith or tradition.

2. What are the implications of prosecuting gender-based crimes?

The issuance of ICC arrest warrants for senior Taliban leaders on charges including gender persecution represents a turning point. For the first time, the international legal system has recognised gender-based repression not merely as an incidental byproduct of war or conflict, but as a core strategy of governance and persecution.

While the ICC has jurisdiction over crimes committed on Afghan territory because Afghanistan is a State Party to the Rome Statute, it has no comparable jurisdiction over Iran, which is not a State Party absent a Security Council referral. Nevertheless, the Taliban case sets a valuable legal development. It affirms that policies institutionalising gender-based exclusion and violence can be prosecuted as crimes against humanity, thereby strengthening a growing jurisprudence around gender persecution and potentially gender apartheid.

This framework matters not only for Iran and Afghanistan, but globally. No state has achieved complete substantive gender equality, and legal gains can be reversible. The United States Supreme Court’s 2022 decision in Dobbs, overturning Roe v Wade, removed federal constitutional protection for abortion access and exposed the fragility of rights many assumed secure. Such regressions underscore that gender-based subordination is not geographically or culturally confined; it manifests in different legal forms and degrees, including – at its most extreme – regimes of institutionalised exclusion that advocates describe as gender apartheid.

3. What are other strategic avenues to confront gender apartheid?

Beyond treaty reform and ICC proceedings, several legal and quasi-legal mechanisms may provide avenues for redress. Some states’ domestic laws permit the investigation and prosecution of certain international crimes committed abroad on a form of universal (or near-universal) jurisdiction, subject to statutory limits such as presence or other nexus requirements, prosecutorial authorisation and applicable immunities. In addition, hybrid tribunals or other special accountability arrangements can be established where there is a viable legal mandate – typically through a UN Security Council resolution or an agreement with the territorial state – and the UN or other international mechanisms can be created to investigate, document and preserve evidence to support future prosecutions.

Survivor-led and women’s rights–led documentation initiatives in exile, sometimes described as truth-telling or people’s commissions, can be another powerful strategy. They preserve testimony, document systemic patterns of abuse and, when conducted with rigorous evidentiary protocols, can support future criminal investigations and prosecutions. Such initiatives may also function as spaces for collective truth-telling, community healing and political mobilisation.

Legal tools alone are not enough. Authoritarian regimes are often sustained through the systematic cultivation of fear – fear of punishment, ostracism and institutional violence – used to deter resistance and fracture communities. The most decisive resistance is therefore also psychological: fear must be confronted, unlearned and stripped of its power. When people cease to be governed by fear, these regimes begin to lose their grip.

Strategic litigation affirms that systems of oppression can be subjected to legal scrutiny and, where jurisdiction and evidence permit, legal consequence – whether the underlying harm is gender-based, racial, religious and/or political. It amplifies survivors’ voices, preserves evidence and can catalyse political will. Its particular power in this context lies in disrupting narratives that normalize gender-based repression and in affirming that women’s bodies, voices and dignity are protected not by ‘morality’ alone, but by law.

This is why I addressed gender apartheid at the IBA panel in a broader global context: gender inequality is worldwide, even though gender apartheid is an extreme, institutionalised form of domination. Where women’s exclusion is written into law and enforced through state coercion, the gaps in international protection become impossible to ignore, and closing those gaps would strengthen safeguards everywhere. Codifying gender apartheid, alongside stronger accountability for gender persecution, would clarify legal standards and equip courts and advocates to challenge systemic exclusion before it is normalised.

If history teaches anything, it is that legal development often follows the world’s harshest lessons, yet those moments can also become turning points. The task ahead is juridical and cultural: bold jurisprudence, creative advocacy and a collective refusal to transmit coercion as ‘tradition,’ so the next generation is not asked to inherit fear and regulated lives, but instead inherits enforceable rights, equal dignity and equal protection of the law.