Blog post by Ghazal Andalib, University of Western Ontario.
On October 4, 2024, the European Court of Justice (ECJ) issued a landmark ruling recognizing Afghan nationality alone as sufficient to grant refugee status to Afghan women, given the systematic gender-based persecution they face. The decision made by the court in AH & FN v. Federal Office has significant implications beyond refugee law, offering a potential pathway for shaping the International Criminal Court’s (ICC) approach to gender persecution as a crime against humanity since the case of Afghanistan is currently under investigation by the ICC. This piece examines whether the ECJ’s ruling, while non-binding for the ICC, can serve as a persuasive precedent for developing a more robust jurisprudence in the field of gender persecution.
The ECJ’s recent ruling made a groundbreaking precedent recognizing Afghan women as inherently vulnerable to gender-based persecution solely based on their nationality. The decision references key international legal instruments, including the Convention on the Elimination of Discrimination Against Women, the Convention Related to the Status of Refugees, and the Istanbul Convention, framing the denial of fundamental rights to Afghan women as a form of persecution. By grounding its reasoning in international human rights norms, the ECJ sets a new standard for refugee status determination. This ruling recognises widespread acts of gender persecution in Afghanistan due to the “accumulation of discriminatory measures in respect of women – consisting, inter alia, in depriving them of any legal protection against gender-based and domestic violence and forced marriage, requiring them to cover their entire body and face, restricting their access to healthcare and freedom of movement , prohibiting them from engaging in gainful employment or limiting the extent to which they can do so, prohibiting their access to education, prohibiting them from taking part in sports and excluding them from political life”. This decision comes at a time when Afghan women face escalating human rights abuses under Taliban rule. By categorizing the severe gender-based restrictions as persecution, the ECJ has provided a legal tool that can be referenced by international bodies, including the ICC, to address these violations within the international criminal justice framework.
While the crime against humanity of gender-based persecution was first codified in the 1998 Rome statute of the international criminal court, the court has not built a robust jurisprudence on gender-based persecution since then. In the most recent ruling of the ICC in the case of Mali, the court found Al-Hassan guilty merely on the basis of religious persecution despite well-founded evidences of gender-based persecution. This decision has therefore been the subject of significant critique by legal scholars. This lack of comprehensive jurisprudence leaves a gap in addressing the crime against humanity of gender persecution. The ECJ’s interpretation of systematic gender-based discrimination provides the pre-context for the ICC to broaden its understanding of gender persecution, particularly when there is limited case law on this issue. According to Article 21 of the Rome Statute, the ICC is mandated to apply not only its statute but also applicable treaties, established principles, and norms of international law. While external decisions like those from the ECJ are not binding for the ICC, they can serve as persuasive references particularly because the ICC lacks its own precedent. Research has shown that the ICC has referred to the decisions of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), as well as the International Court of Justice (ICJ), and the European Court of Human Rights (ECtHR) on substantive law; however, no evidence of reference to the ECJ has been found. According to the Rome Statute, before turning to decisions from national and regional courts, guidance at the international level must be exhausted. However, an interpretation could be made based on the statute that in areas where there is the lack of jurisprudence, the court should be able to recourse to the national and/or regional case law in order to build up its own jurisprudence consistent with international human rights law. The ECJ’s decision, which offers a robust recognition of gender-based persecution, can inform the ICC’s development of a more expansive understanding of gender crimes under international criminal law.
In his most recent report, the UN Special Rapporteur on Afghanistan emphasized the importance of an “all-tools approach” to addressing the Taliban’s gross human rights violations, particularly systematic violations of women’s rights. This approach advocates for the integration and collaboration of multiple legal frameworks, including international refugee law, human rights law, and criminal law, to create a harmonized response to gender-based crimes. By offering a judicial interpretation that acknowledges the gravity of gender persecution, the ECJ ruling could be used as a supplementary legal tool for international criminal accountability. In 2006, Valerie Oosterveld urged the ICC to look outside international criminal law and highlighted that “there is a close link between the development of international refugee law and international criminal law with respect to gendered aspects of persecution”. Currently, the ICC is actively investigating crimes in Afghanistan, focusing on crimes against humanity and war crimes, including those committed by the Taliban. Given the active status of the Afghanistan case at the ICC, the timing of the ECJ’s ruling offers a unique opportunity for the ICC to draw from this precedent. Incorporating the ECJ’s analysis could enrich the ICC’s interpretation of gender persecution, especially when addressing cases where systemic gender-based discrimination is a central feature of the human rights abuses. While the ECJ’s jurisdiction is limited to EU member states, its decision highlights the role of regional courts in shaping broader international legal standards. The ICC can draw on this analysis and could use the ECJ’s decision as a persuasive precedent, particularly where it aligns with established human rights principles, to build stronger cases against perpetrators of gender-based persecution in Afghanistan.
The ECJ’s ruling sets an important precedent for recognizing gender-based persecution as a legitimate ground for refugee status, but its implications go beyond refugee law. For real progress to be made in delivering justice to Afghan women, a coordinated, multi-faceted approach is necessary. The ICC should consider using the ECJ’s interpretation of gender-based persecution as part of its broader strategy to prosecute the Taliban for crimes against humanity. By incorporating insights from regional courts and adopting an all-tools approach, the ICC can help bridge the gap in its own jurisprudence and ensure a more comprehensive response to gender-based violence in Afghanistan.
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