Star Law Analysis
Refugee definition and gender based persecution
Barrister Hassan Faruk
Conventional refugee definition
At present, under international law the Convention relating to the Status of Refugees (Refugee Convention 1951), and the Protocol Relating to the Status of Refugees (Refugee Protocol 1967) provides for refugee definition. These treaties define 'refugee' as a person with well-founded fear of 'persecution' due to his or her race, religion, nationality, political opinion or membership of a particular social group (Article 1 of Refugee Convention 1951).
Interestingly, these instruments say nothing about the procedures for determining refugee status, and leave to the states the choice of means as to implementation at the national level. Later, in 1979, a Handbook was issued by UNHCR, which mentions the procedure and criteria for determining refugee status.
Later, J. Hathaway, renowned refugee law scholar, in his legendary book (The Law of Refugee Status) identified six essential elements of the refugee convention definition, which had been accepted all over the world. The six elements are: 1) alienate; 2) genuine risk; 3) serious harm; 4) failure of States protection; 5) ground for the persecution; 6) needs and deserves protection.
Principle of non-refoulement
The core obligation of the convention is 'non-refoulement', i.e. not sending someone into a situation of persecution. Article 33(1) of the 1951 Convention provides: “No contraction State shall expel or ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race , religion, nationality, membership of a particular social group or political opinion.”
The principle of non-refoulment is the cornerstone of asylum and of international refugee law. Following from the right to seek and to enjoy in other countries asylum from 'persecution', as set fourth in the Universal Declaration of Human Rights, this principle reflects the concern and commitment of the international community to ensure to those in need of protection the enjoyment of fundamental human rights, including the rights to life, to freedom from torture or cruel, in human or degrading treatment or punishment, and to liberty and security of the person. These and other rights are threatened when a refugee is forcibly returned to persecution or danger. For example -Universal Declaration of Human Rights (1948): Article- 2 provides right to freedom, and no distinction should be made on the basis of the political, jurisdictional or international status. Article 3 provides for right to life and security. Article 5 prohibits torture or cruel or inhuman treatment. Article 14 provides right for asylum. International covenant on Civil and Political Rights, Article 6 9 affirms that every one has right to live, liberty and security of persons.
Persecution: The essential elements to determine refugee status
The Refugee claimant must apprehend a form of harm which can be characterised as 'persecution'. According to the UNHCR Handbook, the phrase a 'well founded fear of persecution' is central to the definition of a refugee and is said to exist if the applicant can establish, to a reasonable degree that his continued stay in his country of origin has become intolerable. This fear may be based on personal experience, or on the experience of persons similarly situated (Paragraph 42 & 43 of the Refugee Handbook 1979).
Surprisingly, persecution is not defined in the 1951 Convention or any other international instrument. As a result Hathaway notes: 'It is generally acknowledge that the drafters of the Convention intentionally left the meaning of persecution undefined because they realised the impossibility of enumerating in advance all of the forms of maltreatment which might legitimately entitle persons to benefit from the protection of a foreign state'.
However, The UNHCR recognised that there is no universally accepted definition of persecution, but from Article 33 of the Convention it may be inferred that 'a threat to life or freedom' or one of the five enumerated grounds is always persecution. The Handbook further acknowledges: “Other serious violations of human rights for the same reason would also constitute persecution” (Paragraph 51 of the Handbook). For these reasons Crowly Heaven in the book 'Refugees and Gender: Law and Process' said “Given that all existing definitions of persecution share the notion that violations of basic human rights constitute persecution, it is necessary to examine the human rights protected under international law. The process of assessing harm against internationally agreed standard of human rights allows proper consideration of all forms of serious harm a person may face including those harm that are gender -specific.”
Criticisms of the refugee definition
Although the Refugee Convention 1951 has been protecting the asylum seekers for more than fifty years, however, it is not free from criticisms. Many worlds famous refugee law scholars, such as Goodwin Gill, Shocknove, J. Carnes, Hathaway, have criticised the convention definition as unduly narrow, conceptually incoherent, and morally illegitimate. Martin acknowledges that civilians caught in civil war need relocation and yet are not covered by the convention definition because there are not targeted for persecution.
Moreover, the refugee definition does not include 'economic migrant' or 'natural disaster'. As a result “writers such as Lofchien, Sen and Shue have demonstrated that, 'natural disaster' are frequently complicated by human actions. The devastation of a flood or supposedly natural famine can be minimised or exacerbated by social politics and institutions.”
Feminist critics on refugee definition
The feminists view is more critical; they pointed out that the Refugee Convention does not cover gender persecution. Women are neglected by the Convention, and their experiences are not reflected in the Convention as it was written by the male's point of view. As a result the question begged is- whether the Convention responsive to the gender persecution or whether a specific definition is needed for the women refugees.
J. Greathbatch in 'The Gender Difference: Feminist Critics of Refugee Disclose' says -“The Geneva Convention definition of a refugee has recently come under fire from feminists for its 'neglect of gender as a critical consideration' in refugee determination. By portraying as universal that which is in fact a male paradigm, it is argued, women refugees face rejection of their claims because there experiences of persecution go unrecognised.” Moreover Doreen Indra in 'Gender: A Key Dimension of the Refugee Experience' cites the omission of 'gender' from enumerated grounds of persecution as an illustration of the 'depth of danger delegitimation in refugee context'.
Further, A. Johnson in 'The International Protection of Women Refugees : A Summary of Principal Problems and Issues' noted that although international instruments relevant to the protection of refugee make no distinction between male and female, it is nevertheless clear that “the male refugee was in the mine of the drafters”. It is also pointed that Article 1A (2) of the Convention defines a refugee by using 'he', i.e. male gender. Similarly most fundamental refugee protection principle (Article 33, non-refoulment) also mentions as 'he'. J. Castel in 'Rape, Sexual Assault and Meaning of Persecution' proposed that change has been to include as refugees women who face persecution because of their gender.
On the other hand, some have argued that further measures should be taken to consider women facing severe violence or discrimination as a social group because asylum could be given under existing laws. Yet, successfully claiming membership in a social group has proven very difficult because the UNHCR has given little guidance as to whom this category was meant to apply (by D. Neal in 'Women as a Social Group: Recognizing Sex Based Persecution as Grounds for Asylum').
Indra pointed that female experiences of persecution are ignored because “the key criteria for being a refugee are drawn primarily from the realm of public sphere activities dominated by men. With regard to private sphere activities where women's presence is more strongly felt, there is primarily silence silence compounded by an unconscious calculus that assigns the critical quality “political” to many public activities but few private ones. Thus state, oppression of a religious minority is political, while gender oppression at home is not.”
N. Kelly in 'The Convention Refugee Definition and Gender Based Persecution: A Decades Process' pointed that 'Persecution' is viewed as the infliction of serious harm and a refugee claimant must show that his or her fear such harm is well founded. In practice, action such as detention, severe beatings, mock executions, electric shocks, and other forms of torture and ill treatment have been accepted as persecutory. Other types of harm, which tend specifically to affect women, have not been so radically recognised. Rape, e.g. has been characterised as an act lust and not an act of persecution within the convention. Similarly, female circumcision has been seen as a cultural practice and wife battery as a private act in the domestic sphere, neither constituting persecution in the international context.
Finally, in 1991, The United Nations High Commissioner for Refugee (UNHCR) issued Guidelines for women asylum claimants rather than changing the existing refugee Convention. This proves that the refugee Convention is a 'living instrument' which also covers the women refugee claimant under the category of 'membership of a particular social group.' Other countries also (e.g.- Canada, Australia, US, UK) issued their own Guidelines. These Guidelines provide a framework for analysing and interpreting the claims of women asylum seekers as well as guidance for interviewing women applicants and assessing the evidence they present. Two broad categories of gender- related claims are identified: those where the persecution constitutes a type of harm that is particular to applicant's gender, such as, rape or female genital mutilation, and those where the persecution may be imposed because of the applicant's gender, for example, because of the women's violation of social norms.
Moreover, in practice, jurisprudence of different countries has developed, which ensures that gender-persecution is a ground for refugee status. As an example- in UK the decision of the House of Lords in the case of 'Shah and Islam' case is a significant contribution to the development of international refugee law, especially in gender based persecution.
The case involves the appeals of two Pakistani women who had been the victims of violence at the hands of their husbands and were seeking political asylum in the UK. They were married and had been exposed to false allegations by their husbands that they had been guilty of adultery. It was accepted that they had was well-founded fear of persecution by their husbands which local Islamic law could condone and also aggravate by subjecting the women to the criminal process of Sharia law under which the punishment for sexual immorality is severe and may lead to death by stoning. The Court of Appeal held that these two women were not members of a particular social group within the meaning of the Convention. Later, the appellants appealed to the House of Lords, and the House of Lords allowed the appeals, and held that a 'particular social group' comprised a group of persons who share a common, immutable characteristic that was either beyond the power of a person to change, or was so integral to the individual's identity that it ought not to be required to be altered.
The writer is Assistant Professor, Department of Law & Justice, Southeast University, Dhaka.