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In June 2023, the U.N. Special Rapporteur (“SR”) on the situation of human rights in Afghanistan, together with the Working Group on discrimination against women and girls, submitted a joint report on the situation of women and girls in Afghanistan to the Human Rights Council. The report was based on the SR’s and the Working Group’s visit to Afghanistan in May 2023 and their in-person and virtual interviews with over 2,000 Afghan women and men, a majority of them in Afghanistan. The U.N. report made history by its seminal articulation of the emerging concept of gender apartheid, the first in a formal U.N. report. In this paper, I will examine the legal standards of gender persecution and the evolving descriptor gender apartheid as a way to describe the status of women in Afghanistan. The paper also examines other complementary forms of legal accountability procedures to vindicate Afghan women’s rights and hold perpetrators accountable under crimes against humanity. Although the current locus of the paper is focused on Afghan women, it has larger implications for all other crimes of gender persecution. Hillary Charlesworth and Christine Chinkin argue that the invisibility of women in the development of international law has provided an unfinished jurisprudence that reinforces the boundaries and gendered binaries of international law. The analysis of gender justice in international law is complicated by systemic gender inequalities that bleed into the creation and interpretation of law. However, gender remains at the heart of both real-world war and culture wars in defining the status of women in war and peace. One of the reasons for the gender asymmetry is that the participation in international lawmaking was marked by male hierarchies and the conspicuous absence of women. This paper hopes to create a new narrative for international accountability processes for gender persecution.


human rights, international law, gender persecution, gender apartheid, sexual and gender-based violence, Women Peace & Security, Taliban

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German Law Journal