Afghanistan

Is the European Court of Justice (ECJ) ruling on granting asylum to Afghan women an implication of qualification of gender apartheid in Afghanistan? – EJIL: Talk! – Go Health Pro

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Is the European Court of Justice (ECJ) ruling on granting asylum to Afghan women an implication of qualification of gender apartheid in Afghanistan? – EJIL: Talk! – Go Health Pro

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).

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Challenging Gender Persecution in Afghanistan at the ICJ – EJIL: Talk! – Go Health Pro

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Is the European Court of Justice (ECJ) ruling on granting asylum to Afghan women an implication of qualification of gender apartheid in Afghanistan? – EJIL: Talk! – Go Health Pro

Introduction

In a groundbreaking move, Australia, Canada, Germany, and the Netherlands have announced their intention to take Afghanistan to the International Court of Justice (ICJ) over gender discrimination, following the Taliban’s brutal repression of women and girls. This would be the first time the ICJ has been used by a state to challenge another under the Convention on the Elimination of All Forms of Discrimination Against Women for gender discrimination. Since the Taliban seized control in August 2021, Afghan women and girls have faced what many activists, scholars, and policymakers are calling gender apartheid—a regime of systematic oppression that affects virtually every aspect of their lives.

The Taliban’s decrees have barred women from education beyond the sixth grade, mandated that they travel only with a mahram (male guardian), and imposed punishments for women who raise their voices in public. According to the UN Special Rapporteur on the situation of human rights in Afghanistan, Richard Bennett, these measures, coupled with increased surveillance by morality inspectors and restrictions on the media, represent “gender persecution, a crime against humanity,” that is reshaping Afghan society. The Taliban’s new vice and virtue laws, implemented in 2023, further entrench this system, with new rules that forbid women from leaving their homes unless fully covered and from engaging in public activities such as singing or raising their voices.

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