Forced Marriage of Afghan Girls and the Bifurcated Approach for Defining Persecution

Since the Taliban took control of Kabul in August 2021, women and girls have been erased from public life and have had their civil, political, economic, social and cultural rights disregarded. In this context, there is an intense liquidity problem and currency shortage. Due to a dire economic situation parents see ‘selling’ their daughters into forced marriage as the only option to survive.

The concept of persecution is the most widely debated element of the inclusion clause in international refugee law. The reflection of the doctrine does not cease to grow around the question of whether the lack of state protection constitutes persecution. This article proposes a feminist reading of the definition that the majority doctrine offers the concept of “persecution” by means of the bifurcated analysis: severe violation of human rights accompanied by a failure of the State to protect the individual. To this end, it will analyse the case of child marriages of Afghan girls as a form of gender and child-specific persecution. First, the framework of the bifurcated approach to defining persecution and the contributions of the iusfeminist doctrine will be presented. Second, it will explain why the practice of child marriage meets the criteria established with this approach to link the explanation of the factual situation to the respective human rights.

Forced Marriage in Afghanistan

Despite the December 2021 decree prohibiting forced marriage, there is an increase in child marriage and a lack of a legal framework to prohibit it as there is no minimum age for marriage in Afghanistan. In this context, a girl under the age of 15 may marry according to the Shia Personal Status Law, provided that her guardian proves her competence, puberty and readiness to marry. Afghanistan is not the only country where this phenomenon is occurring, according to the latest global estimates on modern slavery in the field of forced labour and forced marriage by the International Organization for Migration and the International Labour Organization: India, Bangladesh, Nepal, Nigeria, Ethiopia, Democratic Republic of Congo and Mali have legitimized forced marriages.

The purpose of this form of violence is to ensure that the woman retains her virginity before marriage and to ensure a long period of fertility to produce offspring. This leads to forced pregnancies for girls, thus reducing their life expectancy, and therefore results in a violation of the right to life. The World Health Organization is clear in pointing out that when minors, especially girls, marry and have offspring, their health is adversely affected, and their education is hindered. As a result, their economic autonomy is also restricted. The UN Committee on Economic, Social and Cultural Rights has been reiterating since 1999 that there is a direct relationship between the level of girls’ enrolment in elementary school and a significant decrease in child marriages. Families agree with the future “husband” on the contract in exchange for an economic report. And, in case the woman or girl opposes this situation, she will be the victim of physical and psychological violence according to UNICEF.

In Afghanistan, the practice of forced marriage includes: the betrothal of girls, especially under Pashtunwali; polygamy; the exchange of unmarried daughters between families; baad, whereby girls from several families are exchanged to settle debts or family disputes. Baad is practiced especially among the Pashtun community and in rural areas. In 2009, the Afghan government passed the Elimination of Violence Against Women Law (EVAW), which lists 22 crimes, including forced marriage and rape. In addition, according to Afghan civil law, as well as Islamic law, consent is required for marriage. Afghan civil law stipulates that the minimum age for marriage is 16 years. However, this rule has not been effectively implemented in practice.

In the context of Taliban rule, the EVAW is no longer enforced. Despite the decree of December 3, 2021, which enacted the prohibition of forced marriage, it did not abolish the minimum age for marriage. This implies, as denounced by the European Union Agency for Asylum, that child marriages happen. Thus, in the midst of this country being in armed conflict, the sale of women and girls for forced marriages is a daily reality, despite the 2021 decree prohibiting forced marriage, denounced by Afghan feminist activists, as well as by UN Women.

The Bifurcated Approach to Persecution and Feminist Theory: Universal Regulatory Scope

Persecution is defined by mainstream doctrine as the accumulation of two elements: violation of human rights -or serious harm- and lack of state protection (bifurcated approach). In international human rights law (IHRL), there is a sort of hierarchy of rights. Hathaway and Foster state, at the base of this hierarchy is the “International Bill of Human Rights”, which brings together the non-binding but widely endorsed

Universal Declaration of Human Rights (UDHR), and the two treaties that implement the UDHR as binding law, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Other human rights adopted in the 1960s complement and clarify the duties of States in relation to human rights, but in specific contexts: the Convention on the Elimination of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (UNCRC), and the Convention on the Rights of Persons with Disabilities (CRPD). The majority doctrine, despite the classification made by the ICCPR between derogable and non-derogable rights, considers that the different rights shall be considered with regard to their respective importance for the individual person.

The iusfeminist doctrine defends that the right of women to live a life free of violence is configured as a basic right for human existence. This right is widely agreed upon in international law and in the practice of States. I argue that the mere fact that there is a compendium on human rights of and for women, with its own identity within the IHRL, indicates the progress of the human rights system to protect women and ensure them a life of dignity, a liveable life. The iusfeminist conceptualization of human rights has been progressively developed to such an advanced degree and consensus that, today, it is understood as “widely accepted internationally” in the sense that its sustained or systematic violation would imply persecution in the sense of the International Refugee Law.

The lack of state protection assumes that the State is unable or unwilling to provide protection. When the direct agent of persecution is not the State, the UNHCR defends in its Handbook the internal protection theory: “If such behavior is deliberately tolerated by the authorities or if the authorities refuse or are unable to provide effective protection.” The UNHCR in its 2002 Guidelines on Gender Persecution provides that agents of persecution, in interpretation of Article 1A (2) of the Geneva Convention, may be state or non-state agents. The state would be violating its positive obligations to guarantee the right to life if it does not exercise adequate de facto protection against violations of rights by state and non-state agents (General Comment No. 31).

In the case of gender-based violence such as forced marriages, there is a tendency to place this type of violence in the “private” sphere because the agent of persecution is not the state directly. This patriarchal assumption makes it difficult for the State to demand that it do whatever is necessary to protect the lives of women and girls and to understand that it is a matter of public security. The iusfeminist doctrine applies the doctrine of due diligence to fill the requirement of the lack of state protection in the definition of persecution with content (CEDAW General Recommendation No. 19). Therefore, the State, by application of the doctrine of due diligence, is obliged to ensure women the development of a liveable life: a life free of gender-based violence.

Forced Marriage as a Form of Persecution

Forced marriages place girls around the world in situations of dependency, limiting their human rights. This practice violates, among other rights, the right to life, liberty and security (art. 3 UDHR); the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment (art. 5 UDHR); the principle of equality before the law and the right to equal protection of the law (art. 7 UDHR); the right to recourse to an impartial tribunal (arts. 8 and 10 UDHR); the right to freedom of movement (art. 13 UDHR), freedom of assembly and association (art. 20 UDHR). The UNCRC urges State parties to take all effective and appropriate measures to abolish traditional practices prejudicial to the health of children (art.24.3). The same prohibition is drawn from Article 23 of the ICCPR and Article 10 of the ICESCR reading the first and third paragraphs together. CEDAW expressly prohibits early marriage in Article 16.2. It warns States to take all necessary measures, including legislative measures, to set a minimum age for marriage and to make the registration of marriages in an official registry compulsory. Moreover, CEDAW refers to the UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages. In its General Recommendation 21 on equality in marriage and family relations, the CEDAW Committee considers that the minimum age for marriage should be 18 years old.

The exploitation and coercive control that are characteristic of both child marriage and modern slavery cut across religions, cultures, regions and borders, as provided for in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. Therefore, forced marriage is a violation of the human rights of girls that is so severe that it constitutes persecution under international refugee law as set forth in the 1951 Geneva Convention.

In the case of forced marriages, the agents of persecution are private, their own family. The iusfeminist doctrine broadens the State’s enforceability through the doctrine of due diligence which refers to the analysis of the provision of real and effective protection against the violation of human rights. The Afghan reality shows that, despite legislation, forced marriages of girls continue to occur. The enforceability of state protection from this human rights violation does not end with the drafting of a law but with the creation of a system of protection and punishment that eliminates the practice of forced marriages.

Afghan girls who are victims of forced marriage are persecuted under international refugee law. It is the obligation of States to recognize them as refugees.