White Paper: The Legal Vacuum and Gender Apartheid in Afghanistan – A Call for Global Action to Protect Afghan Women and Girls

This white paper addresses the severe human rights crisis faced by Afghan women and girls under the de facto Taliban regime. It highlights the dismantling of their fundamental rights, creating a profound legal vacuum that denies them access to justice, education, employment, and freedom of movement, particularly impacting their ability to seek legal separation or divorce. Grounded in recent international jurisprudence and direct accounts, the paper argues that the institutionalized discrimination constitutes gender apartheid, demanding urgent and coordinated international intervention to establish safe pathways, accessible legal remedies, and hold the Taliban accountable under international law.

I. Introduction: The Unraveling of Rights in Afghanistan

• Brief historical context of women’s rights in Afghanistan pre-August 2021.
• The Taliban’s rapid takeover in August 2021 and the immediate rollback of human rights, particularly for women and girls.
• The concept of “gender apartheid” as a framework for understanding the systemic oppression, increasingly recognized in international legal discourse.
• The central challenge: A state where women are denied basic legal personhood and access to justice.

II. The Dismantling of Women’s Rights: A Systematic Oppression Leading to Gender Apartheid

• Freedom of Movement:
  • Mandatory mahram (male guardian) for any travel beyond a short distance, and strictly for international travel.
  • Arbitrary interpretation of “legitimate reasons” for travel, explicitly excluding education, employment, or independent pursuits.
  • The impossibility of obtaining exit permits/passports without meeting Taliban’s arbitrary criteria.
  • The reality of available flights not translating to freedom to travel due to internal controls.
• Access to Education:
  • Banning girls from secondary and higher education.
  • Elimination of female teachers and segregated classrooms where girls are still allowed.
  • Long-term consequences for future generations of women.
• Right to Work and Livelihood:
  • Systematic removal of women from most public and private sector jobs, including essential services and NGOs/UN agencies.
  • Forced closure of women-run businesses (e.g., beauty salons).
  • Devastating economic impact on women-headed households and the broader economy.
• Political and Public Life:
  • Abolition of the Ministry of Women’s Affairs and dismantling of institutions protecting women’s rights.
  • Exclusion of women from all levels of governance and decision-making.
  • Suppression of protests and dissent by women.
• Access to Justice and Legal Protection:
  • Dismantling of the previous judicial system, removal of female judges and lawyers.
  • Arbitrary application of a fundamentalist interpretation of Sharia law.
  • The “Legal Vacuum” for Divorce:
    • The Afghanistan Analysts Network (AAN) report, “The Doors to Separation Are Closed for Women”: Women and divorce under the Emirate (May 2025), provides chilling direct evidence. It details how the Taliban’s Supreme Court has explicitly revoked provisions allowing women to apply for tafriq (judicial divorce initiated by a wife), making it “almost impossible for a woman to separate from her husband.” The report includes harrowing accounts of women being denied divorce even in cases of severe domestic abuse, with judges promoting forced reconciliation and condemning women for seeking separation.
    • This effectively denies a woman’s fundamental right to exit an oppressive marriage.

III. The International Legal Vacuum for Afghan Women Seeking Divorce Abroad

• The Dilemma of “Jurisdiction”:
  • Most international divorce laws require a “real and substantial connection” (residency, domicile, nationality) to a foreign jurisdiction.
  • The almost impossibility of Afghan women establishing residency in a third country from within Afghanistan due to Taliban travel bans.
• Limited and Insufficient Avenues (Without Prior Residency):
  • India: While accepting asylum seekers (via UNHCR), its lack of a codified refugee law and the fundamental requirement of prior residency make it highly improbable for Afghan women who have never lived there to seek divorce.
  • Germany (and other liberal jurisdictions): While offering strong legal protections and “public policy” exceptions, physical presence and established habitual residence are absolute prerequisites. Remote filing for initial contested divorce is not feasible.
• Glimmers of Hope: Gender-Based Persecution as a Basis for Asylum:
  • A significant legal precedent was set by the European Court of Justice (CJEU) in cases C-608/22 and C-609/22 (October 2024). The CJEU ruled that Afghan women can be granted refugee status solely on the basis of their gender and nationality due to the systematic and cumulative acts of persecution they face under the Taliban regime. This landmark decision acknowledges the widespread nature of the persecution, strengthening asylum claims for Afghan women who manage to reach EU member states.
  • This builds on earlier jurisprudence, such as the UK Immigration Asylum Tribunal case ZH (Women as particular social group) Iran CG [2003] UKIAT 207, which, while concerning Iranian women, explored the concept of women as a “particular social group” facing systemic discrimination and lack of state protection. The CJEU ruling for Afghan women takes this a significant step further by making gender and nationality alone sufficient for refugee status.
• The “Public Policy” Exception in Divorce Adjudication:
  • Once Afghan women secure asylum and establish residency in a third country, courts in Western jurisdictions (e.g., Germany, UK, Canada) are likely to invoke the “public policy” principle. This allows them to apply their own domestic law for divorce, even if conflict of laws rules might point to Afghan law, due to the fundamental incompatibility of the Taliban’s discriminatory laws with principles of equality and human rights. This provides a crucial legal pathway once safe residency is established.
• The Non-Recognition Trap:
  • Even if a divorce is obtained in another Muslim-majority country or a Western jurisdiction, the Taliban regime is highly unlikely to recognize its validity due to their extreme interpretation of Sharia law. This leaves women in legal limbo if they or their children remain in Afghanistan or ever return, with foreign custody or property orders also likely unenforceable.
• The Central Problem: Safe Passage: The existence of international flights from Afghanistan does not negate the Taliban’s internal exit controls and mahram requirements, making legal departure for women nearly impossible without external intervention.

IV. The “Gender Apartheid” Framework: A Call for Legal Recognition and Accountability

• The growing international consensus that the Taliban’s systematic and institutionalized oppression of women constitutes “gender apartheid” is gaining traction, backed by the evidence of systemic persecution as recognized by the CJEU and human rights bodies.
• The significance of formally recognizing “gender apartheid” as a crime under international law, akin to racial apartheid.
• Implications of such recognition: Heightened obligations for States to take effective measures to suppress it, refrain from actions implying recognition or support for the regime, and provide more robust support to victims.
• The role of the International Criminal Court (ICC) for prosecuting individual perpetrators for crimes against humanity (e.g., gender persecution), especially given that the CJEU ruling strengthens the legal argument for recognizing systematic gender-based discrimination as persecution.
• The limitations of the International Court of Justice (ICJ) for individuals, but its potential role for States to challenge Afghanistan’s human rights violations (e.g., under CEDAW), with the CJEU ruling potentially providing persuasive precedent.

V. A Call to Action for the International Community The global community must move beyond condemnation to concrete, coordinated action to address this profound legal and humanitarian crisis.

1. Prioritize and Facilitate Safe Exit and Asylum for At-Risk Afghan Women and Girls:
   • Establish and expand accessible humanitarian corridors and special visa programs for vulnerable Afghan women, especially those at risk of forced marriage, violence, or those whose lives are directly imperiled by Taliban rule. The CJEU ruling provides a strong legal basis for prioritizing their asylum claims.
   • Increase resources for UNHCR and other international organizations working on the ground to assist desperate Afghans to reach safety.
   • Lobby neighboring countries to keep borders open and ensure safe passage.
2. Support Legal Pathways to Divorce for Displaced Afghan Women:
   • Countries hosting Afghan refugees and asylum seekers should ensure easy access to family law courts and legal aid, and explicitly apply their own domestic laws where Afghan law is discriminatory (via public policy exceptions), drawing on established principles in international private law.
   • Explore legal frameworks that might streamline divorce processes for refugees fleeing oppressive regimes, acknowledging the unique challenges they face.
3. Advocate for the Formal Recognition of Gender Apartheid:
   • States, UN bodies, and international legal organizations must actively push for the recognition of “gender apartheid” as a crime under international law, building on the evidence presented by the AAN report and the CJEU ruling.
   • This will provide a stronger legal basis for accountability and concerted international action.
4. Hold the Taliban Accountable:
   • Pressure the Taliban through targeted sanctions on individuals responsible for human rights abuses.
   • Explore all available avenues for accountability under international criminal law (e.g., ICC investigations where jurisdiction exists), with the CJEU’s interpretation of gender persecution serving as a persuasive precedent for the ICC.
   • Maintain non-recognition of the Taliban regime until fundamental human rights, particularly women’s rights, are respected.
5. Support Afghan Women’s Grassroots Resistance and Advocacy:
   • Provide financial and political support to Afghan women’s rights defenders, both inside and outside Afghanistan, who are risking their lives to resist oppression and advocate for their rights.
   • Ensure their voices are heard in international forums.

The situation of Afghan women and girls is not merely an internal affair; it is a profound crisis of human rights and a testament to the systematic erosion of legal personhood. The current legal vacuum denies them fundamental rights, including the ability to legally separate from oppressive marriages, as vividly detailed by recent reports from within Afghanistan. The world has a moral and legal obligation to address this gender apartheid, not just through condemnation, but through tangible actions that offer pathways to safety, justice, and the restoration of dignity for every Afghan woman and girl, supported by the growing body of international jurisprudence recognizing their unique plight.