A multi-year process of debate around draft articles for a Crimes Against Humanity Treaty is underway and calls to categorize gender-based persecution as a stand-alone crime and to codify gender apartheid form fundamental aspects of discussion. These developments in international criminal law are significant to anticipate forced migration as recent changes in asylum regulations across the EU suggest. Between December 2022 and February 2023, Sweden, Finland, and Denmark moved to grant asylum to women and girls from Afghanistan on general risks of gender-based persecution. This falls in line with the EU Agency for Asylum establishing that the accumulation of repressive measures against women and girls in the country, which have been described as gender apartheid, amounts to persecution. In efforts to offer new perspectives on foresight in forced migration, I use case study method and legal-institutional analysis to delineate migration scenarios for gender apartheid and asylum. On the example of Afghanistan, I compare Sweden, Finland, and Denmark as case studies in which asylum is granted to women and girls on general risks of gender-based persecution in contrast to Germany and France as case studies for main destination countries of Afghan asylum-seekers absent of such policies. I explore factors towards policy in/action and provide outlooks for further lines of inquiry regarding anticipatory methods in forced migration.

Does the situation in Afghanistan amount to persecution due to the accumulation of repressive measures enacted against women and is it sufficient that women are affected by such measures merely on the basis of their gender? While these two questions remain in front of the Court of Justice of the EU, several EU member states have moved to grant asylum to women and girls from Afghanistan on general risks of gender-based persecution. This dynamism in asylum regulations across the EU has occurred alongside renewed discussions around gender-based persecution and gender apartheid in international criminal law in light of the ongoing process for a Crimes Against Humanity Treaty. In this article, I put these developments into conversation through case study method and legal-institutional analysis, and argue that the historical link between international refugee law and international criminal law provides a space to envision an integrated system of protection around gender-related claims. To this end, I offer three outlooks for establishing general risks of gender-based persecution in international refugee law and the relationship between gender apartheid and asylum.