July 20, 2010
The status of Afghan women has been high up on the agenda of the international human rights community in the past few years. Today the European Court of Human Rights joined the chorus of the concerned. The Court rendered a judgment that recognizes the extremely problematic status of women’s rights in Afghanistan and will hopefully provide firm support to Afghan women seeking asylum from gender persecution.
In N. v. Sweden, the applicant is a forty year old Afghan woman who applied for asylum in Sweden in 2004. She entered Sweden with her husband, but a year later, in 2005, she notified the authorities that she had separated from her husband and that she wanted a divorce. She alleged that she would face a serious risk of ill-treatment, contrary to art. 3 of the Convention, if she were to be returned to Afghanistan, essentially because she had transgressed established gender norms by seeking a divorce from her husband and living with a Swedish man. She claimed that she had no social network left in Afghanistan and no male support, which she needed in order to survive there. The Court finds that the general information regarding women’s rights in Afghanistan is not enough on its own, to find a violation of the Convention if the applicant were returned, but that the applicant’s personal situation is such that “the applicant faces various cumulative risks of reprisals which fall under Article 3 of the Convention from her husband X, his family, her own family and from the Afghan society.” (par. 62)
This judgment is striking because of its extensive documentation of the human rights abuses women face in Afghanistan. Page after page after page the Court paraphrases international reports that emphasize the gravity of the situation. Here are a few interesting (and shocking) parts of the judgment:
55. The Court firstly observes that women are at particular risk of ill‑treatment in Afghanistan if perceived as not conforming to the gender roles ascribed to them by society, tradition and even the legal system. The UNHCR thus observed that Afghan women, who have adopted a less culturally conservative lifestyle, such as those returning from exile in Iran or Europe, continue to be perceived as transgressing entrenched social and religious norms and may, as a result, be subjected to domestic violence and other forms of punishment ranging from isolation and stigmatisation to honour crimes for those accused of bringing shame to their families, communities or tribes. Actual or perceived transgressions of the social behavioural code include not only social behaviour in the context of a family or a community, but also sexual orientation, the pursuit of a professional career, and mere disagreements as to the way family life is conducted.
57. . . .The Court points out in this connection, for example, the Shiite Personal Status Law that was passed by Parliament and signed by the President in April 2009 which, although yet to be implemented, requires, inter alia, women to comply with their husbands’ sexual requests and to obtain permission to leave the home, except in emergencies. It also notes the gloomy figures indicating that currently up to 80% of Afghan women are affected by domestic violence (see paragraph 34). Moreover, according to the Women’s Protection and Development Commissioner of the Afghanistan Independent Human Rights Commission (see paragraph 37) the authorities see violence against women as legitimate, so they do not prosecute in such cases. In the vast majority of cases women will not seek help because of their fears of police abuse or corruption, or their fears of retaliation by perpetrators of violence. Low social status and social stigmas deter women from going against their families to pursue justice, particularly in cases of domestic abuse. For a woman even to approach the police or courts requires her to overcome the public opprobrium affecting women who leave their houses without a male guardian, let alone women who seek protection from public authorities.
It is great that the Court shows such sensitivity to the multiple and intersecting ways women’s right are put at risk in Afghanistan: domestic violence, sexual ownership by men, social stigma, vulnerable economic status, it is all there. The only thing I am hoping for is that the Court will soon show the same awareness of the “gender roles” that are ascribed to women in Europe. Assuredly the situation in Europe is different, but taking the moral high ground as regards gender equality we should not. The Court has a lot of room for improvement on the home front.
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