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This is a paper I wrote for my International Law class. I would apprecaiate any comments or suggestions!

Amy
aeckert@diana.cair.du.edu

Gender in International Refugee Law

In pursuit of its ideal that "human beings shall enjoy fundamental rights and freedoms without discrimination,"1 international refugee law has developed to protect those individuals who are unjustly persecuted in their homelands. However, the current standards for granting refugee status are overly narrow and are consequently insufficient to protect those who live in fear of such persecution. In particular, the rights of women are often overlooked due to a definition of "refugee" that fails to encompass the type of persecution that women often suffer. The Convention Relating to the Status of Refugees, the document which established this definition, grants protection to those who suffer political persecution in the public sphere. If a woman can establish that she has a well-founded fear of being persecuted because of her race, religion, nationality, membership in a social group or political opinion as the Convention specifies, she will of course be granted protection. However, because women are often restricted by their societies to the private sphere and suffer persecution for different reasons than men, they are often found ineligible for the Convention's protection.2

In this paper, I will first explain the nature of the anti-female bias in international refugee law and its significance. I will then discuss the historical development of this bias in the documents that established the current state of the law. Third, I enumerate the measures that have been taken to remedy the discriminatory effect of the current instruments and finally, I will evaluate their effectiveness and suggest a better solution to the problem.

I. The Gender Bias in International Refugee Law

Because women are often restricted to the private, domestic sphere while men operate in the political sphere, international refugee law is unable to effectively evaluate their gender-related refugee claims. This restriction on women's ability to participate in the public sphere is most prevalent in traditional societies, but it also exists in more developed countries such as the United States. As an example, in the United States. only twenty-eight percent of the State Department's foreign service staff is female, and the percentage falls to five percent for senior foreign service staff.3 United Nations statistics indicate that in 1990 only six states had female heads of state, only three and a half percent of the world's cabinet ministers are female and ninety-four states have no female ministers at all.4 Although there is variation from country to country, the average proportion of female members of parliament is ten percent, although the proportion does seem to be increasing.5 The type of public/private segregation that these statistics suggest is a primary reason for the differences in the types of persecution that women and men suffer.

Two well-publicized cases illustrate the problem of trying to fit the persecution that women most often suffer into categories of refugees that were designed with men in mind. Aminata Diop, a native of Mali, sought refuge in France after she refused a ritual circumcision in 1989.6 The circumcision, also known as a clitoridectomy, would involve the removal of her clitoris and inner labia without anesthesia or sterilization. The position of the United Nations High Commission for Refugees was that Diop did not fit the definition of refugee because she was persecuted by her family and not by her government.7 The French government also denied Diop's refugee status, but she was later permitted to remain in France on humanitarian grounds.8

More recently Nada, a woman from Saudi Arabia, sought refuge in Canada from the persecution that she suffered in her native country. Under Saudi laws, her liberty to pursue an education was greatly limited because of her gender. Although she wanted to study physical education, she was threatened with punishment if she persisted and forced to study nursing instead, one of few fields of study that were open to women.9 Although she wore an abaya, which is a long black garment that Saudi Muslim women are required to wear, she refused to cover her face with a veil. Nada reported that people in her home town hurled rocks and insults at her for going into public without covering her face.10 If she had been caught without a veil by the Mutawi'in, the police in charge of enforcing religious laws, she risked imprisonment and other punishment.11

Initially, Nada's lawyer attempted to argue that the persecution Nada suffered fit into the "political belief" or "social group" categories that are specified in the Convention.12 The immigration panel that heard Nada's case disagreed. Her request for asylum was denied by two male panel members who told Nada that she "like all her compatriots, would do well to comply with the laws of general application she criticizes and...show consideration for the feelings of her father who, like all the members of his large family, were opposed to the liberalism of his daughter."13 After a great deal of public opposition to the board's verdict, Immigration Minister Bernard Valcourt announced on January 29 of this year that Nada could remain in the country on humanitarian grounds.14 At that time, Valcourt also announced that new guidelines for dealing with gender-related claims would be formulated.15

The gender inequity of the current system is further demonstrated by its unjust results. While United Nations estimates allege that between seventy and eighty percent of the world's refugees are female,16 most of those who are actually granted political asylum are male. For example, a recent study showed that forty-eight percent of the refugees Canada accepts and men and only twenty-seven percent are women, with the remainder of those accepted being children.17 The gross disparity between the proportion of women in the refugee population and the proportion of women refugees among those granted protection clearly illustrates the need for reform. In order to sufficiently protect the rights of female refugees, the definition of refugee must be expanded to include the persecution that women suffer because of their gender. The concept of persecution should focus on the substance of the violations rather than narrowly emphasizing the political purpose of the persecution. Such a change would allow many women refugees to prove their case for asylum based on the persecution they suffer, which is often considered to be social rather than political.

II. Gender Issues in the Development of International Refugee Law

Although people have always fled persecution and other harsh conditions, the law governing the treatment of such refugees did not develop until after the first World War. The current international instrument, the 1951 Convention Relating to the Status of Refugees, entered into force in 1954.

The 1951 Convention Relating to the Status of Refugees (hereinafter referred to as the Convention) defines a refugee as one who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country...18

Originally, the 1951 Convention also required that the events causing the well-founded fear must have occurred before January 1, 1951, but the 1967 Protocol Relating to the Status of Refugees abolished that limitation.19 The Convention also grants protection to statutory refugees, but they are outside the scope of this paper.20

The Convention makes no mention of gender. However, the formulation of the Convention and its requirements was far from egalitarian with respect to women's claims. The Convention includes exclusively political forms of persecution, and as Anders B. Johnsson, Senior Legal Advisor to the Office of the United Nations High Commissioner for Refugees (UNHCR), states, "political persecution is much more relevant to the fact of a man in a male-oriented society (as all societies basically are, in the twentieth century), than to that of a woman...it is no surprise that not a single woman was among the plenipotentiaries who met in Geneva in 1951 to draw up the Convention."21 This exclusion of social persecution means that many women refugees are excluded from the protection of the Convention because the type of persecution they suffer was not taken into consideration when the Convention was drafted. AAThe Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (hereinafter the Handbook) was issued by the United Nations High Commission on Refugees twenty- five years after the 1951 Convention entered into force. It elaborates on the criteria for granting asylum that were set forth in the Convention. The Handbook, like the Convention, also fails to consider the differences in the persecution suffered by men and that suffered by women. The guidelines set forth in the Handbook state that a well-founded fear of persecution includes both a subjective fear and an objective basis for that fear.22 However, the factors to be considered in evaluating the subjective fear do not include gender. The Handbook recommends taking into consideration the personal and family background of the applicant, his membership of a particular racial, religious, national, social or political group, his own interpretation of his situation, and his personal experiences- in other words, everything that may serve to indicate that the predominant motive for his application is fear.23

The use of exclusively masculine pronouns in this provision underscores the exclusion of gender from this interpretation. Despite its exclusion from the list, gender is an important factor in determining an asylum-seeker's subjective fear. For example, Amnesty International reports that in Pakistan, women who become pregnant from unreported rape may risk being sentenced to death by stoning for zina, which is extramarital sexual intercourse.24 In fact, a number of women have been convicted of this crime when the men they have accused of raping them are acquitted at trial.25 This is but one example of a circumstance in which women would have a well-founded fear of being persecuted and men would not. Practices like this, including bride-burning and female infanticide, demonstrate the fact that women and men often fear different types of persecution. Therefore, including gender and the differences in men's and women's experiences as a criterion in evaluating whether or not a particular applicant has a well-founded fear is essential.

Women's experiences are further excluded by the Handbook's definition of the agents of persecution. It states that generally, persecution emanates from actions by government agents.26 This has also been the interpretation favored by courts. However, that provision goes on to state that persecution may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned...Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.27

Although this expansion would encompass some forms of persecution commonly experienced by women it still provides no protection where the discriminatory acts committed by non-governmental agents conform to the country's laws, as in Nada's case.

The Handbook also specifies that under certain conditions discrimination can also be considered persecution. It states that discrimination amounts to persecution if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions of his right to earn his livelihood... or his access to normally available educational facilities.28

Again, this seems as if it could apply to women who suffer discrimination. Nevertheless, it has not been used to support the refugee claims of women who are discriminated against because of their gender.

This omission of gender from the Convention and the Handbook leads to an inequitable application of refugee law. Because the type of persecution that women often experience is not evaluated in considering their claims for asylum, they are often denied the protection they need and deserve. In recognition of this, some measures have been taken in an attempt to correct this bias.

III. Attempts to Remedy the Anti-female Bias in International Refugee Law

Because in recognized the inadequacy of these instruments to deal with women's claims of persecution based on gender, the United Nations High Commission for Refugees (UNHCR) stated in the report from its 1985 session that states could adopt the interpretation that women asylum- seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they live may be considered as a 'particular social group' within the meaning of Article 1 A(2) of the 1951 United Nations Refugee Convention.29

The NGO Working Group on Refugee Women echoed this recommendation in its International Consultation on Refugee Women.30

Despite such support for this interpretation, this approach has been rejected in many well-publicized court decisions from many countries. The English case of M.M.G. v. Secretary of State for the Home Department illustrates this.31 In that case, an Iranian woman argued that she should be granted asylum due to the status of women in her native country. The court dismissed her appeal, finding that Westernized Iranian women did not constitute a particular social group. Because such women did not have an identifiable common practice or belief and they did not view themselves as a group, the woman was denied asylum as a member of a persecuted social group.

Although there are no cases directly on point from United States courts, the approach that they have taken to the application of the "social group" category is antithetical to the UNHCR's proposed interpretation. In Sanchez-Trujillo v. Immigration and Naturalization Service,32 the Ninth Circuit established four criteria for membership in a "particular social group." The court stated that:

  1. The cognizability of the "particular social group" must be established;
  2. The claimant must establish membership in the group;
  3. The group in question must have been the target of persecution based on the characteristics of the group's members; and
  4. Special circumstances must be present which warrant granting asylum on the basis of membership alone.33

The court also emphasized the importance of a "voluntary associational relationship" among the group's members.34 Obviously, gender does not constitute a voluntary association and so persecution that was based solely on the victim's gender would not be covered by a "social group" argument under this formulation.

After Nada's claim, based in part on a social group analysis, was rejected by a refugee board, Canada recognized that as it stood, this category was inadequate to comprehend women's claims of persecution based on their gender. When Immigration Minister Valcourt announced that Nada would be allowed to stay in Canada, he also announced plans for new guidelines that refugee boards could use in adjudicating claims of gender-based persecution. Valcourt was originally opposed to such guidelines for three reasons. He believed that Canada's laws were already adequate, that Canada would be flooded with refugees, and that to include gender in the definition of a refugee would be cultural imperialism.35 However, when he announced that Nada would be allowed to remain in the country, Valcourt also reversed this policy. The new guidelines were announced on International Women's Day, March 8.36 They state that board members should consider practices ranging from "rape to genital mutilation, bride-burning, forced marriage, domestic violence, infanticide, and forced abortion or compulsory sterilization..."37 Woman may also be granted asylum for breaking discriminatory laws and customs.38

After the announcement of these new guidelines, a Canadian Federal Court of Appeal granted asylum to a Chinese woman who faced forced sterilization in her homeland.39 The panel that originally heard the claim rejected it, stating that "sterilization is just a 'general practice of population control.'"40 The Court of Appeal, applying the new guidelines, overturned this decision. In spite of this successful and well-noted application of the new guidelines, many critics of the guidelines have claimed that they are ineffective because they are not binding upon board members.41

IV. Appraisal of Corrective Measures

Although the Canadian guidelines are a positive step in recognizing women's claims, they would not be an adequate solution to the problem of gender-related refugee claims even if they were universally implemented. First, even though board members are expected to follow the guidelines, they are not binding in the way that the Convention is binding.42 Second, implementing such guidelines on a country-by-country basis may unduly burden certain countries. The fear of such a burden was one reason why Canadian Immigration Minister Valcourt was reluctant to institute the guidelines initially.43 A universal solution would prevent one state or a few states from bearing an unfair share of the refugee flow.

The best solution would be to add gender to the Convention's definition of a refugee. The same reasons that required a global solution for the refugee problem in general apply with equal force to this problem. Amending the Convention to include gender would best assure uniform treatment of gender-based refugee claims. Any state that is a party to the Convention can request a revision by notifying the Secretary-General of the United Nations.44 The request for revision of the Convention is then considered by the General Assembly.45 Another option would be a second protocol to the Convention to deal with gender persecution. This may not be accepted with the same universality as the Convention, so it would be less desirable than a revision of the Convention itself. In the case of either a revision or a second protocol, the provisions in the Handbook would also need to be revised in order to reflect the differences between the political persecution that is currently recognized and the social persecution that women often suffer.

As noted above, many of the provisions seem as if they were intended to include the substance of the persecution that women suffer. These claimants should not be excluded by an overly narrow and technical interpretation of the legal instruments governing their situation. Revising the Convention and the Handbook would make the law conform to one of the guiding principles of international refugee law, As stated at the beginning of the Handbook, "Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee."46 The social persecution which many women refugees suffer is as severe as that suffered by men in the political sphere. Amending international refugee law to recognize these claims is necessary is the refugee regime is to fulfill its promise of protecting those who have been unjustly persecuted in their native lands.

Notes

1 1951 Convention Relating to the Status of Refugees, Preamble, 189 UNTS 137 [hereinafter Convention].

2 Some commentators contend that such a formulation of persecution denies women's experiences outside the private sphere and erects an impenetrable wall between the social and private realms. See Jacqueline Greatbach, The Gender Difference: Feminist Critiques of Refugee Discourse, 1 INTERNATIONAL JOURNAL OF REFUGEE LAW no. 4, 520 (1989). However, a conception of persecution which includes social persecution does not necessarily preclude women's claims based on political persecution. The other categories of the Refugee Convention would still apply to women who suffer persecution for those reasons. Expanding the definition merely extends protection to those women whose persecution is outside the scope of the convention.

3 CYNTHIA ENLOE, BANANAS, BEACHES AND BASES: MAKING FEMINIST SENSE OF INTERNATIONAL POLITICS 118 (1989).

4 UNITED NATIONS, THE WORLD'S WOMEN 1970-1990: TRENDS AND STATISTICS 31 (1991).

5 Id., 32.

6 Toni Y. Joseph and Mark McDonald, Woman rallies world against circumcision, CALGARY HERALD, March 5 1992 at C6.

7 Id.

8 Clyde H. Farnsworth, Anti-woman bias may being asylum, N. Y. TIMES Feb. 2, 1993 at A8. * Nada is an assumed name that this woman uses to avoid governmental retribution against her family, who is still living in Saudi Arabia.

9 Jacquie Miller A Saudi Arabian woman, seeking to escape her country's restrictive laws, has been denied asylum in Canada. Now in hiding, she says she's a "feminist refugee." OTTAWA CITIZEN Sept. 4, 1992, at A1.

10 Id.

11 A report by the Minnesota Lawyers International Human Rights Committee indicated that a male relative would probably be jailed first, and if Nada still did not comply with the law, she would be imprisoned and possibly tortured. A representative of Amnesty International confirmed this view. However, a representative of the human rights group Middle East Watch said Nada would probably not be jailed, but that she would be whipped. Id.

12 Id.

13 Jacquie Miller, The nature of persecution; Refugee laws unclear in case of Saudi woman protesting restrictions, OTTAWA CITIZEN Sept. 4, 1992, at A2.

14 Jacquie Miller, Feminist refugee can stay; Strong message to decision makers, OTTAWA CITIZEN Jan. 30, 1993, at A1.

15 Id.

16 UNITED NATIONS, supra note 4 at 74.

17 Jacquie Miller Men get preference on seeking asylum, OTTAWA CITIZEN, May 10, 1993 at A1 .

18 Convention, Article I (a) (2). 189 UNTS 137.

19 606 UNTS 267 (No. 8791).

20 Statutory refugees are those defined by "the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization." Convention, Article I (a) (1).

21 Anders B. Johnsson The International Protection of Women Refugees: A Summary of Principal Problems and Issues, 1 INTERNATIONAL JOURNAL OF REFUGEE LAW no. 2, 222 (1989).

22 Handbook, @@@@ 37 & 38

23 Handbook, @@ 41.

24 AMNESTY INTERNATIONAL, WOMEN IN THE FRONT LINE, 34 (1991). Amnesty also notes that no sentences of stoning had been carried out as of 1992.

25 Id.

26 Handbook, @@ 65.

27 Id.

28 Handbook, @@ 54.

29 UNHCR Executive Committee Report of the 36th Session U.N. Doc. A/AC.96/673, para 115(4) (k) (1985).

30 1 INTERNATIONAL JOURNAL OF REFUGEE LAW no. 2, 235-6 (1989).

31 TH/9515/85 (5216), abstracted in 1 INTERNATIONAL JOURNAL OF REFUGEE LAW no. 14, 556-7 (1989)

32 801 F.2d 1571 (9th Cir. 1986).

33 Id. at 1576.

34 Id.

35 Michele Landsberg, To Valcourt, raped, beaten women aren't refugees, TORONTO STAR, Jan. 19, 1993 at C1.

36 Kim Lunman, Refugee women get break: New guidelines unveiled, CALGARY HERALD March 9, 1993 at A1.

37 Jacquie Miller, Canada adds sex-based persecution to grounds for granting asylum, OTTAWA CITIZEN March 10, 1993 at A4.

38 Id.

39 Stephen Bindman Woman facing sterilization a refugee: court; Chinese policy criticized, THE GAZETTE (MONTREAL), April 2, 1993 at A1.

40 Mainland Chinese woman, son given refugee status in Canada CENTRAL NEWS AGENCY April 3, 1993.

41 Sue Montgomery Guidelines not heeded- critics, CALGARY HERALD, March 26, 1993 at A7.

42 Id.

43 Landsberg, supra note 35.

44 Convention, Article 45 (1).

45 Id., Article 45 (2).

46 Handbook, @@ 28.






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