El interés superior de las menores afganas ante los matrimonios forzosos bajo la lente del Derecho Internacional de las personas refugiadas

Abstract

Forced and early marriage constitutes both a form of gender-based violence as defined by CEDAW and a form of persecution - based on gender - under the regulation of International Refugee Law (IRRL).In this proposal we want to question how girls who are subjected to this form of persecution are protected by DIPR. In order to do so, it is of vital importance to take into account the specificities of this persecution, through a holistic intersectional approach: the minority age of the persecuted; the direct persecuting agent is usually a member of the same family; the areas of origin, associated with the tradition in this area; the ethnicity; the perception of traditional gender roles in the family; the socio-economic situation; the protection or not of the authorities.This analysis will be based on the current Afghan reality since the Taliban military occupation last August. According to the EASO, in August 2021, Afghan applications in the EU became the largest group of applicants.Next, we will question whether girls subjected to persecution through forced marriage are a particular social group under the Geneva Convention grounds (Supreme Court of the United States Gao v. Gonzales). To conclude by proposing as a lege ferenda that this is a political motivation: the refusal to enter into a forced or early marriage is a political positioning with respect to the discriminatory norms and customs of the country of origin.