The draft Crimes Against Humanity Treaty (CAH Treaty), currently negotiated by states, presents a critical opportunity to strengthen the recognition of gender-based international crimes. Our new legal brief, When censorship becomes a crime, explores the central role that freedom of expression violations play in maintaining systems of gender persecution, and argues for the codification of the crime of gender apartheid in the draft CAH Treaty.
Freedom of expression violations – including through surveillance, exclusion from public life, restrictions on access to areas of public, social, and political participation and various other forms of censorship – are used to sustain regimes of gender persecution in which women and girls face severe repression. In countries such as Afghanistan, Iran, Yemen, and Saudi Arabia, this oppression is particularly widespread and systematic, although it manifests in different ways and with varying levels of intensity.
Despite this, insufficient attention has been paid to the central role that freedom of expression violations play in systems of persecution that are criminalised under the Rome Statute of the International Criminal Court and recognised in many domestic legal frameworks.
Violations of free expression may appear removed from the forms of violence that international criminal prosecutors and judges typically confront. Yet, they are often fundamental to the structures that enable and enforce discrimination and oppression.
The brief shows how international human rights law – particularly its protection of freedom of expression – can help international criminal justice authorities better understand the systemic environment in which the crime of gender persecution is committed, and the multifaceted harms and abuses that characterise it.
At a pivotal moment for international criminal justice, the draft CAH Treaty reproduces the Rome Statute’s definition of gender persecution. By embedding this crime within a dedicated treaty framework, it has the potential to strengthen accountability mechanisms and expand avenues for redress.
As outlined in our new brief, negotiations on the draft CAH Treaty are also a key opportunity to expand the recognition of gender-based international crimes.
For this reason, ARTICLE 19 joins the movement calling for the codification of a specific crime of gender apartheid. While situations amounting to gender apartheid can often be prosecuted as gender persecution, the two concepts are distinct and complementary. Gender persecution alone does not fully capture the institutionalised system of systematic oppression and domination that characterises gender apartheid.
We welcome the fact that several states, including Spain, Uruguay, Australia and Mexico, have now formally proposed the inclusion of gender apartheid in the CAH Treaty.
Codifying gender apartheid would strengthen accountability for the systematic freedom of expression violations that are a defining feature of such oppressive regimes. In these contexts, the ability of women and girls to express themselves, develop their identities, and live with dignity becomes part of a daily struggle. That struggle requires greater attention, stronger support, and every available tool to hold accountable those who seek to suppress and silence women and girls.