Why it’s Time to Talk about Gender Apartheid and Asylum — Migration Scenarios and International Law Convergence
By Lara-Zuzan Golesorkhi
News about yet another repressive measure targeting women and girls in Afghanistan have become frequent points of concern for the international community since the Taliban take-over in August 2021. From banning Afghan women and girls from education, to prohibiting them from speaking in public spaces, to most recently undermining their access to healthcare training, the accumulation of these measures has been described as gender apartheid, understood as the systematic and institutionalized exclusion of persons from (all) areas of life based on their gender.
Gender apartheid, as concept and practice, has re-emerged in international criminal law and international human rights law through the ongoing processes of a new Crimes Against Humanity Treaty (CAH Treaty) and a General Recommendation by the Committee on the Elimination of Discrimination against Women (CEDAW). As part of these processes, gender apartheid is to be codified and included in international law provisions. At the same time, general risks of gender-based persecution for Afghan women and girls have been established at the EU level that reflect what has been defined as gender apartheid. Yet, gender apartheid is not named as such and implications of developments in international criminal and international human rights law remain largely unaddressed.
This begs the question: Why are we not talking about gender apartheid and asylum?
In this blog, I outline five reasons that is due time for discourse and politics in refugee law to consider the concept and practice of gender apartheid. This is especially urgent when it comes to better understanding future migration scenarios and the role that convergence across different areas of international law plays therein. The blog draws on one of my recently published articles on the topic and offers updated insights on the case of Afghanistan and asylum procedures in the EU.
1. It’s time to talk about gender apartheid and asylum because data say so.
By September 2021, shortly after the Taliban take-over, first-time and subsequent asylum applications by Afghan nationals skyrocketed in the EU. Similar patterns can be delineated as it pertains to gender disaggregated data. While these numbers have varied since, it was with the EU Asylum Agency (EUAA) establishing that general risks of gender-based persecution for Afghan women and girls exist that another peak in first-time and subsequent asylum applications for female Afghan nationals (all ages) can be noted. Important to highlight are Denmark and Finland where first-time asylum applications tripled and quadrupled in the months immediately following the EUAA announcement and the countries including Afghan women and girls in their membership of a particular social group category.
This data on first-time and subsequent asylum applications by female Afghan nationals (all ages) must be contextualized against outcomes of these applications. Here again, we find that since the Taliban take-over, the amount of challenged asylum cases on gender-based persecution claims with positive outcomes has more than quadrupled in the EU and the most frequently challenged asylum cases on this matter documented from a single country came from Afghanistan in 2022 and 2023. Relatedly, the number of positive decisions on applications filed under the Refugee Convention steadily increased in the Union from 2021 to 2023. This data snapshot of asylum procedures for Afghan women and girls gesture to the importance of talking about gender apartheid and asylum, especially when aligned with developments in international criminal law, international human rights law, and international refugee law.
2. It’s time to talk about gender apartheid and asylum because developments in international criminal law say so.
On November 22, 2024, the Sixth Committee of the UN General Assembly passed a resolution to move draft articles of the CAH Treaty into formal negotiations. The treaty process includes the categorization of gender-based persecution as a stand-alone crime and the codification of gender apartheid. This ongoing process for a new CAH Treaty holds immense significance for women and girls in Afghanistan, as well as other regimes that have been described as gender apartheid, such as Iran, and has occurred in the context of states pursuing judicial routes through the International Court of Justice (ICJ) and the International Criminal Court (ICC) for accountability mechanisms in this regard.
In September 2024, for instance, Canada, Australia, Germany, and the Netherlands announced that they will take the Taliban in front of the ICJ for gender discrimination under the CEDAW Convention and just a few weeks ago, the governments of Chile, Costa Rica, Spain, France, Luxembourg, and Mexico referred the situation in Afghanistan to the ICC for further investigation, citing ongoing violations of women’s rights. While this judicial action is pending, eyes have been on international human rights law and a new General Recommendation (GR 40) emerging from the CEDAW Committee.
3. It’s time to talk about gender apartheid and asylum because developments in international human rights law say so.
In October 2024, the CEDAW Committee launched GR 40 on the Equal and Inclusive Representation of Women in Decision-Making Systems. The Recommendation holds provisions on gender apartheid, calling for its codification in order to “create full accountability for gender-based crimes.” The explicit reference and definition of gender apartheid as “an institutionalized regime of systematic oppression and domination of women, committed with the intention of maintaining a regime” in the document is notable, not least as it draws a concrete connection to the above outlined developments in international criminal law.
Indeed, the call to codify gender apartheid rests on the Rome Statute, the principal treaty in international criminal law on gender-based persecution, whose Drafters looked to international refugee law and its conceptualization of gender-related persecution. This historical, and now current linkage between different areas of law around the notion of persecution as it pertains to the concept and practice of gender apartheid must not be underestimated: as the UN Special Rapporteur on Afghanistan described the repression of women’s rights in the country at the 53rd UN Human Rights Council Session as amounting to “gender persecution — a crime against humanity” that can be “characterised as gender apartheid.” It is here where international refugee law comes in with a remaining hesitance to talk about gender apartheid despite recent developments pointing into that direction.
4. It’s time to talk about gender apartheid and asylum because developments in international refugee law say so.
On October 4, 2024, the Court of Justice of the EU (CJEU) held that the “discriminatory measures adopted in respect of women by the Taliban regime constitute acts of persecution.” More specifically, the Court found that gender and nationality alone are sufficient to grant asylum to Afghan women. The Court’s decision is binding on EU member states in which a similar case arises.
While the CJEU clarifies considerations around gender-based persecution in international refugee law, it does not explicitly reference the term gender apartheid, albeit reflecting what has been defined as such. The Court speaks of “deliberately and systematically” applied measures that “deny Afghan women fundamental rights related to human dignity on account of their gender” and that these measures form 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.”
Other developments in international refugee law more explicitly reference gender apartheid such as the most recent EUAA Country Guidance on Afghanistan which leans on a 2023 report by the UN Special Rapporteur on Afghanistan, reiterating that the Taliban “have implemented policies which were largely ‘discriminatory’ and ‘misogynistic’, enforcing ‘gender persecution and an institutionalized framework of gender apartheid’.” Similarly, a statement by the UN Refugee Agency published ahead of the noted CJEU ruling concludes that “protection is presumed to be required due to the persecutory measures taken by the de facto authorities in Afghanistan which affect women and girls solely on the basis of their gender.” In this way, we see a progressive trend as it pertains to establishing general risks of gender-based persecution, absent of concretely naming gender apartheid while implicitly describing the concept and practice in key documents.
This then brings me to my final point, namely the role of convergence of international law for developing migration scenarios in relation to gender apartheid and asylum.
5. It’s time to talk about gender apartheid and asylum because policy foresight says so.
Policy foresight involves careful considerations of a range of anticipatory methods with the objective to make informed decisions about future trends, challenges, and opportunities in the policy realm. As I find in my article, scenarios provide a suitable approach in the context of gender apartheid and asylum. More concretely, I suggest that since scenarios focus on the question of ‘What if’ and present and opportunity to “create alternate visions of the future” that are reflective of factors that inform migration, taking into account the convergence between international criminal law, international human rights law, and international refugee law offers a qualitative contextual backdrop against the quantitative data on asylum procedures outlined above that will emerge even more fully.
In sum, the noted developments across different areas of international law hold important implications for policy foresight as it pertains to gender apartheid and asylum with an accompanying data picture to further evolve. So why not then, as I propose, talk about gender apartheid and asylum using scenarios as a method to better understand future migration patterns and anticipate what is yet to come.
Publisher’s note: readers may also be interested in this article by Lara-Zuzan Golesorkhi in Data & Policy, which compares approaches Sweden, Finland, and Denmark have taken to grant asylum to women and girls from Afghanistan on general risks of gender-based persecution.
About the author
Lara-Zuzan Golesorkhi is an Assistant Professor in Political Science at the University of Portland. She is a scholar and an activist with expertise in migration, gender, and human rights. Her work is concerned with intersectional and decolonial approaches towards migration-gender relations in a global context.
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This is the blog for Data & Policy (cambridge.org/dap), a peer-reviewed open access journal published by Cambridge University Press in association with the Data for Policy Conference and Community Interest Company.
