Law

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Under international criminal law, apartheid only applies to discrimination based on race. A new open letter argues it should apply to gender discrimination, too.



In March of this year, a group of over 100 Iranian and Afghan women signatories published an open letter calling for the end of gender apartheid. The purpose of the letter was threefold: to raise awareness of what gender apartheid is, and how it's affecting women in Iran and Afghanistan; to encourage public statements and policy responses condemning these regimes; and to expand the definition of apartheid under international law. As the letter explains, currently, under international criminal law, use of the word apartheid is limited to race; but for years, activists around the world—and more specifically, in Iran and Afghanistan—have been using it to describe extreme, gender-based persecution, and the regimes that perpetrate it. The letter makes the case for why it's time we update the word's definition on the global stage.



Below, we spoke to one of the people behind the campaign, human rights lawyer Gissou Nia, on the letter's longterm goals, its challenges, and why language matters when it comes to gender persecution and apartheid. 



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How did the open letter come to be? How did you get involved?



The open letter came about with a core group of Iranian and Afghan women signatories. The genesis of this is that women's rights activists in Afghanistan and Iran have been using the term "gender apartheid" for years to describe, essentially, a system of subjugation and oppression that they are being repressed by. [But] when I spoke to some of these activists, not all of them had actually been aware that gender apartheid is not currently a crime under international law. Gender was not a part of that definition.



Apartheid, as defined under international criminal law—whether it’s a part of crimes against humanity or not—only applies to racial apartheid. So, [we] thought, why don’t we just change the definition? There have been incredible legal academics and jurors who have [already] been working on this, like Karima Bennoune, and what we wanted to achieve with the campaign is to supercharge [their] efforts. It’s an unbranded campaign—so there’s no one organization attached to it.



I’m curious what differentiates an apartheid regime from other forms of gender discrimination.



It’s a great question. One of the main things that people have asked is how is this distinct from gender persecution, let’s say. With gender persecution, which is a crime against humanity as defined under the ICC Rome Statute, that’s a more broadly defined crime. There may be some instances of something that you could charge as gender persecution that would amount to gender apartheid, but gender apartheid describes a certain type of treatment. It really focuses on the structures. The word “apartheid” comes from the word “apart” in Afrikaans, born out of the historical experience of South Africa—but it’s really about keeping one group separate from another. Here, you could say that [it’s] men subjugating and dominating women for purposes of entrenching power. I think that’s the distinguishing factor. Certainly, that would amount to a case of gender persecution, as well, and we’re not saying that it’s either/or—we think these are all complementary. In the case of race, we have both racial apartheid and racial persecution; so there’s no reason that we can’t have gender apartheid, as well.



I’d also say that gender apartheid, as opposed to gender discrimination, is much more extreme. Certainly misogyny and patriarchy exist everywhere. There are gender discriminatory laws in many different countries, including in the US. But a gender apartheid regime is something that’s quite distinct and different. It basically is saying that women are not worth a man. In the case of Iran, a woman’s value is worth half that of a man, legally. So they’re removed from public spaces. That’s why in Afghanistan, women and girls are not allowed to be educated, [why] they’ve been taken out of employment. The Taliban recently said that Afghan women cannot work for the UN in Afghanistan. So it’s essentially the removal of women from public spaces and from public life. And that’s enshrined in the law: You are formally not worth a man, and we are going to repress you, because that’s how we’re going to keep this regime in power.



When you say their value is less, how is that defined?



So, for example—I’m a lawyer, so this one for me is especially grating—if I was to give testimony in a court in Iran, my testimony would be worth half that of a man. I also wouldn’t be able to travel outside of Iran without the permission of my husband or my male guardian. I couldn’t ride a bike, I couldn’t go to sporting stadiums. I would be barred from certain types of higher education. Women do not have equal capacity, inheritance, divorce, marriage rights—anything that relates to the family, they’re unequal. And, of course, there’s the mandatory hijab laws, which we know sparked the outrage over Mahsa Amini’s murder.



For this particular campaign, why did you choose Iran and Afghanistan specifically? There are other countries where, arguably, [gender apartheid] would apply.



Because we were campaigning [and] were successful in removing the Islamic Republic from the UN Commission on the Status of Women. Obviously all of that came about because of the Woman, Life, Freedom movement in Iran after Mahsa was killed at the hands of the Islamic Republic’s morality police. There were a lot of Afghan women activists that wrote me after that and were congratulating me. [But] Afghanistan was still on the UN Commission on the Status of Women. True, the Taliban is not formally recognized before the UN, so the representative is from the former government and basically doesn’t represent anybody. Nonetheless, they’re still there.



And it really struck me, that while we’re speaking about Woman, Life, Freedom in Iran, and while there’s been such a global outpouring of attention and action and policy engagement and energy, right across the border, our Afghan sisters are dealing with a horrendous situation, of which the globe is exhibiting some form of paralysis, and a lack of direction on how to improve their circumstances.



I think a lot of Iranian women who are championing women’s rights have been thinking about our Afghan sisters, who we’re tied to through shared borders, shared culture, and in some cases shared language. These issues are interlinked and they’re not separate, and so we’ve been keen to do some joint activism. It’s something a bit new in terms of campaigning, and certainly once the law is adopted or as discussions continue, there may be other women that choose to engage with it who feel that they’re living under gender apartheid regimes. This was a campaign that Iranian and Afghan women came together to launch, but it doesn’t preclude other groups of women wanting to [sign] or get involved with this advocacy or get behind this mission. Anybody can sign, and support. But the number of gender apartheid regimes in the world is actually pretty few.



How many people have signed it so far?



I haven’t checked lately to see what the tracker is, but it was something like 5000.



Can you talk me through the three chief demands the letter makes?



So basically, the [three demands] are the way that we envision [passing the law] would happen. I’ll just walk you through the timeline. In the immediate, first of all, there’s a lot of people who are not familiar with what the term apartheid is even, [especially] under the age of 35. However, most of the decision makers that we are seeking to engage with are above the age of 35, and they’re in government, and they have direct recollection of those events in the eighties [in South Africa] until the dismantling of the apartheid system in 1990. It has a real moral and resonant power for those decision makers, so part of this campaign is aimed around introducing the term gender apartheid, so people are familiar with what that actually means. What does apartheid refer to, what does it refer to in the context of Iran and Afghanistan, and why is this still going on.



The second thing is, we want parliaments around the world to issue resolutions condemning the apartheid in Afghanistan and Iran. That’s moving forward in Canada, in the UK, in New Zealand, and now we’re doing a lot of outreach to states in South America and Africa because we think that will be very important to have a global frame. This isn’t just a Western effort, and we want to make sure that is understood.



The ultimate goal is to have some of the legal frameworks that apply to apartheid amended or introduced to include gender apartheid. One of our main goals is to have gender apartheid included in the definition at the upcoming global convention on crimes against humanity. It should be adopted at the end of 2024, with any luck, and we want to be included.



Do you think the history of the term being so associated with race helps or hinders the movement?



Well, it’s not called racial apartheid. It’s just called apartheid. The reason that apartheid doesn’t include gender is because it was created in the 20th century out of the South Africa experience. I [also] think a lot of international criminal law [has been] created by men in small rooms, and not necessarily with women’s input and that’s changing. We see that there is an increased focus on gendered crimes. There’s even a reevaluation of the crime of genocide to focus more on the gendered aspects of it. Historically, people have assumed that genocide has to be mass killing, not realizing that actually, it could also just be sterilization, and those forms of genocide are much more focused around women.



The point is a lot of crimes that we grapple with are really viewed through more of a male lens, and there’s been a concrete effort to apply a gender lens to that. I think this ties into the reason why apartheid didn’t focus on gender. It wasn’t because there weren’t gender apartheid regimes. It was just because of the kind of dialogue that was happening in the 70s and the 80s and the 90s.



Longer term, what happens if you succeed in changing international law? What happens if [gender apartheid] is criminalized?



The biggest thing is just that then it’ll be possible to be prosecuted, and there’ll be a lot of new pathways for accountability. It also ultimately will enforce prosecution of crimes like gender persecution, as well, because prosecutors will start to think more deeply about the gender aspects of crime. But while the end goal might be to have this legally enshrined, really, the goals are all along the way. Because what we want to do is raise awareness about what this crime is, but also drive policy actions.



I mean, with South Africa, the ask was really to financially isolate that regime and to get people—governments, companies—to stop doing business with them. With Iran and Afghanistan, they’re already very isolated, they’re already very sanctioned. It’s not about introducing new sanctions or dissuading companies from working with these states, because they already aren’t. It’s about reframing the discussion. Those sanctions are issued for nuclear proliferation, for WMDs, for ballistic missiles, for terrorism; they are not issued for human rights violations, and they’re definitely not issued for gender apartheid. So we want to start to reframe why it is that we’re saying that governments should not engage with these governments [so] they need to change their behavior. It makes it unacceptable.



The crime of apartheid as distinct to the crime of gender persecution, gender apartheid would introduce more of a question about third party actors. Because of the historical example of South Africa apartheid, there’s a question of liability. If governments and companies are complicit, or doing business with regimes that are perpetrating gender apartheid, are they willingly aiding and abetting this regime? It’s a bit more expansive than what’s currently on the books, in our view.



We’re not asking for increased sanctions as part of this campaign. What we’re asking for is that there clearly are demands that gender apartheid come to an end.



For more information, you can read the letter in its entirety, and join in signing it, at endgenderapartheid.today.



You Should Give a Sh*t About is an ongoing column highlighting local stories with a global impact. This interview has been edited and condensed for clarity.

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    [post_content] => The trials of the women, though on vastly different charges, demonstrate clearly that there are two classes of victims: those for whom the wheels of justice grind slowly; and those for whom they move quickly.

On the first weekday of the new year a California jury handed down a verdict in United States vs. Elizabeth Holmes, finding the Theranos founder guilty of four counts of wire fraud and conspiracy to commit fraud against investors. Just a few days earlier, a New York City jury found Ghislaine Maxwell, the disgraced British socialite who procured girls for Jeffrey Epstein to abuse sexually, guilty of sex-trafficking. The timing of the two decisions aimed at powerful women made them collectively feel like a good omen, as if 2022 was shaping up to be the Year of Accountability. 

According to the evidence presented by prosecutors in both cases, the verdicts seemed fair and the juries thoughtful. (John Carreyrou, the former Wall Street Journal reporter whose investigative series on Theranos brought down the company, said in the final episode of Bad Blood, his podcast series about the Elizabeth Holmes trial, that the jury had been “unusually thoughtful.”) Holmes was found guilty of defrauding investors but cleared of the charges against patients. Maxwell, for her part, was convicted of five of the six counts with which she was charged for aiding and abetting Jeffrey Epstein’s sexual abuse of minors in the 1990s. 

As different as the charges were, both trials raised uncomfortable questions about gender, underscoring how seriously our legal system takes protecting the interests of rich white men. Remember that Maxwell is the only person to have faced federal prosecution for her involvement in Epstein’s vast criminal enterprise—besides Epstein, who died in prison in what was ruled a suicide. Holmes is a “unicorn”—the first Silicon Valley CEO to be convicted of white collar crime, who also happens to also be a female founder, an under-represented demographic that receives just 11 percent of VC funding. “I wonder if [Holmes would] be going to prison if she didn’t have ovaries,” mused NYU marketing professor Scott Galloway on his podcast, Pivot. 

Like the last prominent female CEO convicted of white collar crime—Martha Stewart, who in 2004 was found guilty of obstruction of justice and sentenced to five months in prison—Holmes became a cautionary tale about a woman who flew too close to the sun, inspiring both a media frenzy and a content extravaganza. The rise and fall of Holmes, a billionaire (on paper) entrepreneur who was once heralded as the next Steve Jobs, has generated two prominent podcasts, a best-selling book, a documentary, a TV series on Hulu debuting March 3 that stars Amanda Seyfried, and a recently announced Apple Original Films adaptation of Carreyrou’s book, Bad Blood, starring Jennifer Lawrence. (Martha Stewart’s case, which took place before the podcast revolution, also inspired best-selling books—including a how-to guide written by Stewart herself while she was under house arrest—and a made-for-TV movie starring Cybill Shepherd.)    

Things get a bit more complicated—both with the Stewart comparisons and the idea that Holmes’s case contains broader lessons for the tech industry—when you consider the specifics of what she promised, and what Theranos actually delivered. As I have noted before, Theranos wasn’t a tech company, despite how it was pitched to investors. Holmes wasn’t trying to hawk a ride-sharing app or a social network or a coworking space. She was pitching a medical device that purported to diagnose diseases from a drop of blood with greater accuracy than traditional laboratory tests requiring larger samples. And unlike Martha Stewart, whose crime was relatively minor—she lied to investigators about a suspiciously well-timed sale of stock—Holmes lied to patients and investors, with life-altering implications.  

Theranos’s product never worked, which set Holmes apart from her Silicon Valley peers. Holmes told investors that Theranos’s “minilab” device could run thousands of blood tests, even though it never could run more than 12. She implied that it was being deployed on the battlefield and in Medevac helicopters, when she never had a deal with the Department of Defense beyond an exploratory conversation. One patient, Erin Tompkins, testified that she ordered a Theranos test at Walgreens, and was misdiagnosed as having HIV. “I was quite emotional about it,” she said, adding that she tried to call the company but never got beyond a customer service representative. Another patient, Brittany Gould, took the stand to say that a Theranos test result indicated that she was miscarrying, which would have been her fourth miscarriage in a row. Thankfully, a nurse practitioner encouraged her to get a second test, which confirmed that Gould’s baby was healthy. 

[caption id="attachment_3721" align="alignleft" width="640"] (l to r): Bill Clinton,
Elizabeth Holmes, and Jack Ma at the Clinton Global Initiative on September 29, 2015.[/caption]

As disturbing as that all sounds, it was the charges that stemmed from lying to the investors—not to the patients—that caused the jury to return a guilty verdict. To be sure, the defense successfully blocked testimony about the emotional impact of getting false test results, so it may have been harder to convince the jury to convict on those counts. Juror number six, a man named Wayne Katz, explained to ABC News that the jury ultimately felt that the CEO was “one step removed” from patient victims, so they weren’t directly defrauded in the same way as investors like the billionaire DeVos family, which put $100 million into Theranos; Daniel Mosley, a lawyer who invested $6 million; or PFM Health Sciences LP, a hedge fund that invested $96 million. For whistleblower Tyler Shultz—grandson of former Secretary of State George Shultz, who was on the company’s board—the verdict was mostly cause for celebration. But, as he told John Carreyrou on his Bad Blood podcast, he and his former colleague Erika Cheung were not motivated to put their “necks out on the line” so they could avenge aggrieved billionaires. They were trying “to save patients from potentially getting bad medical results.”  

It would be a travesty if Elizabeth Holmes were to wind up being the only Silicon Valley hype artist called to account for lying to investors or a range of other crimes. Elon Musk, for example, got a slap on the wrist for tweeting that he was taking Tesla public—a lie that sent the stock soaring—settling with the Securities and Exchange Commission for $40 million and agreeing to make some performative changes at the company. Travis Kalanick never faced criminal charges for any of the multiple scandals at Uber, which included price gouging, a culture of rampant sexual harassment and a failure to vet drivers, which led to high profile incidents of drivers committing sexual assault on female passengers. Neither has Facebook’s Mark Zuckerberg, even though his platform’s algorithm has weaponized disinformation, leading to disastrous outcomes ranging from a genocide in Myanmar, manipulation of the 2016 U.S. presidential election by a Russian troll farm, and the coordination of the assault on the Capitol by white nationalists on January 6, 2021.  

Holmes has yet to be sentenced. Each of her four fraud counts carries a 20-year maximum, but those sentences are likely to be served concurrently. She will probably get off with a much lighter sentence, as the judge takes into consideration factors such as her being the mother of an infant. Maxwell, who faces up to 65 years in prison, is awaiting sentencing, though her lawyers are currently trying to throw the whole verdict out on a technicality after a juror told a media outlet that he was a victim of sexual abuse. 

It has long been said that “the wheels of justice turn slowly,” but by looking at these two cases it’s clear that the relative slowness of that turning seems to depend on who the victims are. In the Maxwell case, where the victims were sexually abused underage girls, the crimes went uninvestigated for decades, until Julie K. Brown, a journalist with the Miami Herald, wrote a series that led to Epstein’s second arrest in 2019. (In 2008, Epstein famously cut a deal with prosecutors in Palm Beach, in which he pleaded guilty to soliciting a prostitute and served just 13 months in jail with extensive “work release.”) By contrast, Holmes was indicted for fraud more quickly–about three years after the first of John Carreyrou’s troubling reports were published in the Wall Street Journal. 

Ultimately, it is a good omen that Maxwell and Holmes, with their fleets of high-priced lawyers to match their unjustified entitlement, were both charged with crimes they obviously committed. But going forward, unless the complaints of teenage sex-trafficking victims and patients who got bad, potentially life-altering test results are treated with the same urgency as those of billionaire investors who lost money on a scam, the Year of Accountability will just have to wait. 
    [post_title] => The year started out well for justice, but less so for accountability
    [post_excerpt] => The trials and convictions of Ghislaine Maxwell and and Elizabeth Holmes show us that there are two classes of victims: those for whom the wheels of justice grind slowly; and those for whom they move quickly.
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