Introduction
From a feminist perspective, international law has frequently failed to adequately address gender issues, primarily due to the challenges posed by a male-centric discourse reflected in its organizational and normative structure. This limitation is particularly evident in refugee law, where gender-based persecution has long struggled to gain recognition as a ground on its own for asylum. The 1951 Refugee Convention, developed in the context of post-war Europe with a limited understanding of the concept of persecution (see here and here), defines a refugee as someone fleeing their country because of a well-founded fear of persecution on grounds of race, religion, nationality, membership in a particular social group, or political opinion, with gender being notably absent. This historical framework continues to hinder protections for women from Afghanistan under current refugee law, who face severe deprivation of fundamental rights and systematic discrimination. This system of oppression recently gained legal attention as ‘gender apartheid’ to distinguish the severity of the situation of women’s rights in this context (see this and this).
In its October 2024 landmark ruling, AH & FN v. Federal Office for Immigration and Asylum, the ECJ reiterated that certain measures, such as forced marriage and lack of protection from domestic violence, independently constitute an act of persecution. Moreover, the court added that some of the other restrictions—including limits on healthcare, education, and freedom of movement and dress code—which might not, if taken separately, constitute an act of persecution, but as a whole, they impact women to the degree that meets the threshold of persecution (For the EU law and the details of the ruling, see here). The court found that there is an institutionalized system of segregation and discrimination in place that deliberately denies women fundamental rights, targeting their dignity solely based on gender (Paragraph 44). The case concerned two Afghan women, AH and FN, who argued they had adopted Western values and lifestyles. The Federal Administrative Court of Austria dismissed the applicants’ appeals, stating that their adopted Western lifestyle was not so essential to their identity that they could renounce it to avoid persecution (Paragraphs 22 and 23).
In this contribution, I argue that, although the court refrains from explicitly using the term ‘apartheid,’ its rulings implicitly acknowledge the existence of gender apartheid in Afghanistan. This judgment, in line with the practice of certain European countries (also see this) and progressive jurisprudence, also underscores the importance of recognizing acts of persecution within private spheres.
Afghan Women and Refugee Status
The 1951 Refugee Convention defines a refugee as someone with a well-founded fear of persecution based on five specific grounds: race, religion, nationality, membership in a particular social group, or political opinion. Gender is not explicitly listed, reflecting the historical context in which the Convention was drafted, where persecution- having more of a civil and political nature- was ‘specifically devised for a particular geographic problem at a particular time’, meaning post-WW2 Europe. This has posed challenges for recognizing gender-based persecution as grounds for asylum, where rights violations against women primarily occurred in the private sphere and often took cultural, social, and economic forms. Women were often denied asylum because of the inconsistent interpretations of ‘particular social group’ under different jurisprudences and also because the harm they feared was not considered as ‘persecution’ (see here).
For years, these issues have posed significant challenges for Afghan women seeking refugee status, both globally and in Europe. While the Taliban systematically violates women’s rights—restricting their access to work, education, freedom of movement, enforcing hijab requirements, and providing no legal protection in cases of domestic violence (see here and here for the policies in place before the fall of Taliban in 2001)—research demonstrates that, in the US, Canada and Australia, female asylum seekers must often demonstrate that they have faced “extraordinary circumstances beyond the systematic and daily oppression experienced by women in Afghanistan.” For instance, most Afghan women who fled from the overall discriminatory policies or domestic violence had to come up with an artificial categorization to get a valid form of persecution deemed a basis for asylum (see here).
Turkey, Iran and Pakistan continue to deport Afghan women asylum seekers along with men and children (see here and here). Many European countries, after the Taliban takeover in 2021, while they implemented large-scale evacuation programs, mostly gave only subsidiary protection (see here how subsidiary protection creates additional difficulties and instability for asylum seekers) to Afghan asylum seekers. Afghan women, despite the dire situation they might face if they return, must provide additional reasons for their asylum requests (see here). Additionally, some courts have suggested that adopting a ‘Western lifestyle’ is a matter of choice, implying that women could simply forgo these choices and return to Afghanistan. This reasoning, often grounded in cultural relativism, could lead to conclusions that certain practices—such as restrictions on the freedom of movement and mandatory hijab—do not constitute rights violations but are instead framed as culturally specific norms acceptable outside Western contexts (see how ‘visibility of the applicant’ is one of the main criteria according to which, the individual can be considered ‘Westernized’).
Evolution of the Concept of Gender Apartheid around the Repression of Women in Afghanistan
This practice demonstrates a limited understanding of the systematic and deliberate daily oppression that women in Afghanistan endure, encapsulated by the term ‘gender apartheid.’ The term ‘gender apartheid’ has long been used to describe the systematic inhumane situation of initially women and, more recently, people with diverse sexual orientations and gender identities (LGBTQIA+) in countries such as Afghanistan and Iran. Despite similarities between racial apartheid and gender apartheid, the condemnation of racial apartheid far surpasses the response to comparable acts of gender apartheid, and gender apartheid has received lenient treatment in international law, largely influenced by the male discourse of international law and trends like cultural relativism. The authors of the legal brief of the gender apartheid campaign propose the following amendment (in bolded text) to the definition of the “crime of apartheid” contained in Article 2(2)(h) of the Draft Crimes Against Humanity Convention:
“the crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups or by one gender group over another gender group or groups, and committed with the intention of maintaining that regime.
Codification of gender apartheid as an international crime fills a gap in the current international legal framework as it can be distinguished from other crimes -including gender persecution- due to its “distinguishing intent and animating context.” There is a crucial contextual element, meaning the existence of an institutionalized regime of systematic oppression and domination. Moreover, the crime of apartheid is characterized by a unique animus, defined as the intention of maintaining the institutionalized regime of systematic oppression and domination. This extends beyond the general elements of crimes against humanity, such as the requirement for a systematic or widespread attack and the intent to commit the crime. Some soft law documents in the past two years confirmed this viewpoint, holding that it is the framing of apartheid that fully captures the nature of the distinct and transgenerational harm women experience in Afghanistan. It reveals a system intentionally designed to discriminate against, segregate, and deprive women of their fundamental rights, capturing the ideology that is at the heart of the Taliban’s ruling.
The perpetrators could potentially be prosecuted for committing the existing crime of gender persecution as a CAH at the ICC, and proceedings can be brought at the ICJ against Afghanistan – and, therefore, the Taliban as its de facto government- for discriminating against women. However, the framework of gender apartheid could offer a more robust legal mechanism for holding states accountable. The framework of gender apartheid could reinforce the international community’s duty to address and eliminate this form of discrimination and create momentum for consequences similar to those imposed on South Africa during its apartheid era (see here). Moreover, the codification of gender apartheid could elevate gender apartheid to jus cogens status and underscore the states’ obligation to prevent and suppress crime. This recognition also can lead to a more systematic and beyond-individual assessment of well-founded fear of persecution for women who flee Afghanistan by recognizing the fact that the existing discriminatory policies and the daily oppression women experience in their daily lives amount to persecution for the matter of refugee law, something crystallized in some recent asylum policies and refugee law.
Gender Apartheid Reflected in some Asylum policies and Refugee Law
Moving beyond individual assessments of a well-founded fear of persecution for Afghan women, several EU member states have acknowledged that Afghan women, in general, face gender-based persecution under Taliban rule. In late 2022 and early 2023, the Swedish Migration Agency, Danish Refugee Appeals Board, and Finish Authorities concluded that all Afghan women should be granted refugee status solely based on their gender. Switzerland also became the fourth country to follow this approach, stating that “a self-determined life for women and girls in Afghanistan is not possible under the current regime.” These decisions reflect a growing consensus that Afghan women face systemic and deliberate persecution from which no one can escape. The European Union Agency for Asylum (EUAA), in its 2024 report, referring to the OHCHR report, confirmed that “the Taliban have implemented policies which were largely ‘discriminatory’ and ‘misogynistic,’ enforcing ‘gender persecution and an institutionalized framework of gender apartheid.” They argue that “the accumulation of various measures introduced by the Taliban (..) amounts to persecution”, and “for women and girls in Afghanistan, well-founded fear of persecution would in general be substantiated.” Moreover, UNHCR states that in contexts where gender-based violence and discrimination are pervasive, and the State either condones such violence, fails to protect due to discriminatory policies or practices, or engages in acts of persecution itself, protection may need to be granted based solely on gender.
In line with the above-described policies and legal positions, in its ruling AH & FN v. Federal Office for Immigration and Asylum, the ECJ emphasized that some of the measures, such as forced marriage and the lack of protection against gender-based violence and domestic violence, in themselves, constitute acts of persecution. Moreover, the court stated that some of the systematic and discriminatory measures enforced by the Taliban against women, if taken separately, might not constitute an act of persecution; these measures, taken cumulatively, impact women to such a degree that they meet the required threshold of severity to constitute acts of persecution. These acts include restricting access to healthcare, political life and education, and the exercise of professional or sporting activity, restricting freedom of movement, or infringing the freedom to choose one’s clothing (Paragraphs 43 and 44).
Reflected in the ECJ’s ruling, is the granting of refugee status to women escaping the oppressive regime of apartheid automatically and without a one-by-one assessment of well-founded fear of persecution. The court found that some of the discriminatory measures imposed on women deliberately and systematically denies them fundamental rights tied to human dignity solely because of their gender. By holding that “those measures reflect the establishment of a social structure based on a regime of segregation and oppression in which women are excluded from civil society and deprived of the right to lead a dignified daily life in their country of origin,” the court confirms the existence of an institutionalized system of discrimination, segregation, and deprivation of fundamental rights that no one can escape from (Paragraph 44).
Conclusion
In conclusion, the growing recognition of gender-based persecution as grounds for asylum, particularly for Afghan women, along with the acknowledgment of ‘gender apartheid,’ marks a significant step toward a more feminist international law framework. Recent rulings, such as the ECJ’s, highlight this progress by affirming that forced marriage and lack of protection from domestic violence, individually, and restrictions such as on healthcare, education, and freedom of movement cumulatively constitute persecution while also recognizing the cumulative effects of these measures that characterized gender apartheid as a systematic and deliberate form of oppression. This dual recognition sets a critical precedent for other states, encouraging the adoption of progressive jurisprudence that validates gender-based persecution as a legitimate ground for asylum. It also underscores the need for a global commitment to condemn and address gender apartheid, ensuring justice and protection for women and girls subjected to such entrenched discrimination, segregation and persecution.
