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.
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 overseas chinese in canada datastated 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).