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.

In this paper, I will examine the legal standards of gender persecution and the evolving descriptor gender apartheid as a way to describe the status of women in Afghanistan. The paper also examines other complementary forms of legal accountability procedures to vindicate Afghan women’s rights and hold perpetrators accountable under crimes against humanity. Although the current locus of the paper is focused on Afghan women, it has larger implications for all other crimes of gender persecution.