1.1. Why the CAH treaty matters to migration: linking international criminal law and international refugee law

International criminal law and international refugee law have been closely linked around the notion of persecution: persecution constitutes a crime against humanity as per the Rome Statute and forms the basis for grounds of protection as per the Refugee Convention (Li, Reference Li2020). With specific regard to gender-based persecution, Oosterveld (Reference Oosterveld2006) points out that “international refugee law has acknowledged gender-related forms of persecution since 1985,” which subsequently “influenced the drafters of the Rome Statute to include gender within the list of persecutory grounds in the crimes against humanity provision” (51). I propose that now this can function in reverse with discussions in international criminal law taking place regarding the categorization of gender-based persecution as a stand-alone crime and the codification of gender apartheid; these aspects may well inform the conceptualization around general risks of gender-based persecution in international refugee law.

Of chief concern in terms of the extent to which international criminal law should and can inform international refugee law is the process of refugee status determination. Here, varied perspectives exist within scholarship on matters of individual and country-wide risk assessments for protection. For instance, Smith (Reference Smith2008) suggests that international criminal law can provide insights into the level of persecution in respective countries and thus the “functionality of national legal systems,” which is essential for country-wide risk assessments in international refugee law (167). Two specific cases of the International Criminal Court (ICC) have been discussed in this context, namely the Tadić decision (1997), which involved an examination of criminal responsibility as part of a group, and the Kupreškić decision (2000), which invoked discussions around the definitional applicability of persecution in international refugee law (Hathaway and Foster, Reference Hathaway and Foster2014; Sassoli and Olson, Reference Sassòli and Olson2000). While in each case, it was asserted that the areas of law are distinct from one another and that cross-reference should be pursued with caution, the fact that the situation of women and girls in Afghanistan has been described as gender apartheid implores a country-wide risk assessment that is relevant for international criminal law and international refugee law alike (International Service for Human Rights 2023).

Indeed, the significance of country-wide risk assessments in regard to establishing general risks of gender-based persecution in international refugee law cannot be overstated and is evidenced in the recent developments in asylum regulations across the EU. For example, in January 2023, the EUAA’s ‘Country Guidance: Afghanistan’ determined that for women and girls in the country, a “well-founded fear of persecution would in general be substantiated” (86–91). This country-wide risk assessment was made given the Taliban’s measures on women’s freedom of movement and expression as well as access to education, employment, healthcare, and social protections (Ibid., 86). While the EUAA’s guidance does not legally oblige EU member states to implement corresponding regulations, member states must take this guidance into consideration when evaluating asylum claims (Ibid., 6).

The EUAA’s Guidance emerged shortly after Austria’s Supreme Administrative Court referred a request for a preliminary ruling to the CJEU on two cases of women seeking protection from the Taliban regime (Press Release No 172/23). In question is whether the situation in Afghanistan amounts to persecution due to the accumulation of said repressive measures and whether it is sufficient that a woman is affected by such measures merely on the basis of their gender (UNHCR, 2023). The ruling addresses the interpretation of the EU Qualification Directive which holds that acts of persecution “can, inter alia, take the form of… acts of a gender-specific nature” (EU 2011, art 9, para 2(f)). To this end, the Court of Justice’s Advocate General issued an opinion in November 2023, stating that “the discriminatory measures adopted against Afghan women by the Taliban regime amount, on account of their cumulative effect, to persecution” (CJEU 2023a,b, Press Release No 172/23). In the opinion, the Advocate General affirmed that:

Relatedly, the UNHCR (2023) published a ‘Statement on the concept of persecution on cumulative grounds in light of the current situation for women and girls in Afghanistan’ which clarifies that “forms of harm may cumulatively constitute persecution” (2). These emerging trajectories in international refugee law render the respective discussions on the CAH treaty of utmost relevance for anticipating policy-making in the forced migration.

1.2. What has happened so far: EU member states and general risks of gender-based persecution

In December 2022, Sweden became the first EU member state to recognize that “the degradation of Afghan women’s and girls’ rights qualifies as persecution on the basis of gender” in alignment with the country’s expanded refugee definition that includes gender as a sixth protected ground (EP Think Tank, 2023; Swedish Aliens Act, 2005, 716 chap 4, sec 1). In Finland, the Aliens Act holds provisions as part of the PSG category that takes gender dynamics into account within which asylum has been granted to women and girls from Afghanistan (EP Think Tank, 2023). Denmark followed suit shortly after in direct connection to the EUAA’s Guidance. Unlike Sweden and Finland, however, Denmark does not hold any specific gender components in its asylum law (whether as sixth protected ground or as part of the PSG category) and has not “previously recognized women and girls from an entire country as refugees based on their gender” (Ibid.). The move then, to grant asylum to women and girls from Afghanistan under the PSG category on general risks of gender-based persecution, is particularly notable, especially since other member states have not done so yet.

Germany and France, for example, have gender-inclusive provisions as part of the PSG category in their asylum laws, but neither has established general risks of gender-based persecution as per the EUAA’s Guidance (Asylum Act, 2016, art 2; Tahirih Justice Center, 2021). Although policy-makers in Germany and France have expressed concern about the situation of women and girls in Afghanistan, the prevailing policy inaction on this rhetoric must be reconciled against the fact that the countries constitute the main destinations for Afghan asylum-seekers in the EU (Infomigrants, 2023; RFI, 2023).

The case studies of Sweden, Finland, Denmark, Germany, and France demonstrate the fragmented approach towards common asylum regulations that is notorious across the EU. This fragmentation regarding gender apartheid in Afghanistan vis-à-vis asylum indicates that there are currently no conclusive determining factors towards policy in/action on the matter. I argue that it is exactly this variation in policy responses that demonstrates the importance of a CAH Treaty containing gender-based persecution as a crime against humanity and the codification of gender apartheid on migration patterns by way of linkages between international criminal law and international refugee law.

1.3. What might happen in the future - Part 1: Anticipatory methods for gender apartheid and asylum

To explore the potential implications of developments in international criminal law and international refugee law on future migration patterns, scenarios provide a suitable approach in anticipatory methods. Scenarios describe “qualitative narratives about the future of migration that emphasize possible structural changes and their consequences for migration” (Sohst et al. Reference Sohst, Tjaden, de Valk and Melde2020, 101). The objective of scenarios is to “create alternate visions of the future” that are reflective of factors that inform migration (Ibid.; Vezzoli et al. Reference Vezzoli, Bonfiglio and de Haas2017). As such, scenarios answer the question ‘What if’ and hold limited predictive power and instead focus on long-term strategic planning with uncertainties (Wilkinson Reference Wilkinson2017).

In the literature, different types of scenarios have been explored. For instance, Sohst et al. (Reference Sohst, Tjaden, de Valk and Melde2020) separate migration scenarios by general purpose, geographic focus, and thematic focus (107). Pertaining to gender apartheid and asylum in relation to Afghanistan, migration scenarios of geographic focus (EU) and thematic focus (gender) are relevant. Sohst et al. further delineate that across the varied types of scenarios, migration drivers are analyzed on macro, meso, and microlevels. Of these levels, an emphasis is placed on macrolevel developments, such as the Taliban takeover, forming the primary context based on which meso (apartheid) and micro (gender) level migration drivers can then be determined (Ibid., 112).

Relatedly, Boissonneault et al. (Reference Boissonneault, Mooyaart, de Jong and de Valk2020) understand migration scenarios as “any foresight exercise about migration” and assert that any future characterization around migration starts with the purpose of the scenarios (5 & 6). The scholars differentiate between explorative, predictive, and normative types of migration scenarios, each with their own purpose. In terms of gender apartheid and asylum, explorative migration scenarios are relevant as they aim at “determining what could happen in the future,” namely changes in policy based on developments in international criminal law and international refugee law, as I argue (Ibid., 10).

Regarding methods used to develop migration scenarios, the field has been described as being based on “dispersed methodological foundations,” ranging from participatory approaches, large-scale mixed studies, existing scenario-building, Delphi, and computer-aided (Sohst et al. Reference Sohst, Tjaden, de Valk and Melde2020, 118, 125). In this way, scenarios draw on quantitative and qualitative data, summarized by Boissonneault et al. as follows:

For the purpose of this commentary, I rely on qualitative methods in the form of case study analysis and legal-institutional analysis that assign likelihoods to different factors and offer outlooks for future lines of inquiry. Given that the discussed developments in international criminal law and international refugee law are continuously and simultaneously evolving, robust quantitative data are yet to emerge more fully. However, data from the EuroStat Data Browser and the EUAA Case Law Database offer some insights to contextualize the proposed migration scenarios for gender apartheid and asylum.

For example, within just a month of the Taliban’s return to power, the highest numbers of first-time applications filed by female Afghan asylum-seekers (all ages) were reported in the EU and in many of the countries under examination (EuroStat Data Browser a, 2021–2023). While these numbers have fluctuated over time, it was with the publication of the EUAA Country Guidance that the numbers of first-time applications rose again. Of note here are Denmark and Finland, where first-time applications tripled and quadrupled in the months immediately following the publication and the countries including general risks of gender-based persecution in their PSG category. Similarly, France recorded its second highest monthly numbers of first-time applications one month after the EUAA publication, whereas Germany matched its top five-monthly numbers in January 2023.

Numbers of first-time asylum applications filed suggest a snapshot of the urgency to provide international protection to Afghan women and girls, but this presents only half the picture. The remaining picture appears when looking at the decisions of these applications. Across the EU, a steady increase in positive asylum decisions for Afghan women and girls (Geneva Convention Status) can be noted between 2021 and 2023 (EuroStat Data Browser b, 2021–2023). This trend is mirrored in nearly all of the countries included in this commentary, with a particularly stark incline reported for Denmark between 2022 and 2023 where numbers more than quadrupled.

These data on positive asylum decisions must be situated in the context of the number of challenged asylum cases concerning Afghan women on gender-based persecution with positive outcomes which have more than quadrupled across the EU since the Taliban take-over in August 2021 (EUAA Case Law Database, 2021–2023). In 2022 and 2023, the most frequently challenged asylum cases documented from a single country came from Afghanistan with 2023 constituting the highest numbers of positive outcomes in different member states.

1.4 What might happen in the future - Part 2: Migration scenarios for gender apartheid and asylum

In leaning on available data and following principles in anticipatory methods outlined above, I propose three different migration scenarios for gender apartheid and asylum pertaining to the situation in Afghanistan. To reiterate, the key drivers in these migration scenarios are the Taliban take-over (macrolevel), the institutionalization of what has been characterized as gender apartheid (meso level), and the impacts thereof on women and girls (microlevel). The key uncertainties that remain and that inform the scenarios concern developments in international criminal law and international refugee law. In regards to international refugee law, the scope and content of the EUAA Guidance, the UNHCR Statement, as well as the decision by the CJEU must be taken into account, while in regards to international criminal law, calls to categorize gender-based persecution as a stand-alone crime and to codify gender apartheid must be taken into account. It is important to note that these developments, although occurring continuously and simultaneously, have varied time frames.

For instance, the EUAA Guidance states that country-wide risk assessments “should be considered valid as long as current events and developments fall within the trends and patterns of violence observed” (EUAA 2023, 116). Since the publication of the Guidance under study (January 2023), a renewed version has been issued (May 2024) which reaffirms general risks of gender-based persecution for Afghan women and girls, demonstrating regular frequency on up-to-date assessments (EUAA 2024). The UNHCR Statement, on the other hand, forms a specific response to the request for a preliminary ruling by the CJEU that might be referenced in future instances with similar queries around persecution on cumulative grounds. Lastly, the decision by the CJEU will have a significant impact on member states. Although the CJEU does not decide on the dispute itself, national courts “dispose of the case [C-608/22 and C-609/22] in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised” (CJEU 2023a,b).

Relative to international criminal law, the ongoing process of the CAH Treaty has a concrete timeline: state submissions with comments on the draft articles were published in January 2024, followed by the UN General Assembly’s Sixth Committee second dedicated session for discussion (April 2024) and a subsequent decision by the Committee on next steps for the treaty in October (Global Justice Center 2023, 5). Across this timeline, updates on the categorization of gender-based persecution as a standalone crime as well as the codification of gender apartheid can be expected.

Of note here is that out of the 30 state submissions on the draft articles, more than half mentioned at least one gender-related issue (Just Security, 2024). The EU and three of the Nordic countries under examination in this commentary (along with Iceland and Norway) published joint submissions inclusive of gender-related aspects, whereas Germany and France shared individual submissions absent of considering such aspects. In the Nordic countries’ joint submission, it is emphasized that “a future convention on crimes against humanity would constitute an important tool to assist States in their efforts to prevent and punish gender-based crimes” (UN Sixth Committee, 2024, p. 3). Furthermore, it is stated that the Nordic countries “would like to explore the potential of listing other gender-related crimes as independent crimes against humanity,” a potential gesture towards codifying gender apartheid in international criminal law (Ibid).

It is against these key drivers and key uncertainties that I propose the following three migration scenarios for gender apartheid and asylum. All scenarios assume the continuous governance of Afghanistan by the Taliban with gender apartheid measures that necessitate the protection of women and girls vis-à-vis asylum.