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Rape, Sexual Assault and the Meaning of persecution: The Present Law
Rape, Sexual Assault and the Meaning of persecution: The Present Law
By Mr Jean-Paul LAWRENCE TAMPU-EYA, BA LL.B. LL.M. PhD (Law Res.)
There appears to be some acceptance in today's criticism of international law that behind law's apparent neutrality and interpretations, women are generally discriminated against and stereotyped. International refugee law illustrates this argument since it does not recognise gender as a ground of persecution. Although women suffer similar forms of persecution like men, e.g. beatings, arbitrary detention, torture etc. but, in addition, there are other forms of gender-related persecution such as rape and other sexual assaults that are only unique to women simply because they are women. For this reason, many commentators argue that there seems to be a need for Article 1A(2) of the 1951 Geneva Convention relating to the Status of Refugees to be extended to include women suffering from gender-related persecution such as rape and other sexual assaults.
This essay is structured as follows: In its introduction, it states that the definition of refugee in the 1951 Geneva Convention fails to recognise expressly gender as a ground for persecution. Consequently, it forgot to protect women from gender-related forms of persecution such as rape and other sexual assaults. In the first part, it examines rape and sexual assault as gender-specific forms of persecution against women. Secondly, after analysing the cases of Sofia Campos-Guardado, Olympia Lazo-Majano and Fauziya Kasinga, it argues that rape and other sexual assaults committed by the authorities or those whom they are either unwilling or unable to prosecute should constitute persecution in refugee law since these acts are in breach of fundamental human rights and there is no state protection. Thirdly, it criticises EU countries' attitudes for refusing to accept gender-related forms of persecution since this shows lack of awareness because rape and other sexual assaults are in breach of international human rights law and they constitute serious harm, which is a critical ingredient of 'well founded fear of persecution.' Fourthly, it praises Canada, United States, Australia and New Zealand for accepting gender-related forms of persecution such as rape and other sexual abuses in their domestic law's interpretations of refugee definition. Fifthly, after looking at the five grounds under the Convention, it stresses that rape and other sexual assaults can be appropriately claimed on both grounds of political opinion and 'membership of a particular social group.' Before concluding, it suggests that all states need to adopt Guidelines that recognise gender-related forms of persecution, as it is in Canada and the US. Lastly, it concludes that rape and other sexual assault constitute persecution in international refugee law since many states use them as torture. It implies that women victims have no legal remedy in such evil crimes because they were committed by either authorities themselves or those whom they are unwilling or unable to prosecute.
The 1951 UN Convention and the 1967 Protocol Relating to the Status of Refugees (the Convention) and the legal principle of non-refoulement represent the primary source of international obligations, imposed upon states, towards refugees and asylum seekers. According to Article 1A(2) of the Convention, the term 'refugee' applies to any body who:
"Owing to a well-founded fear of being persecuted for the reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside his country of origin and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the county of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."[1]
This definition establishes only five grounds of persecution that are 'race, religion, nationality, membership of a social group or political opinion', which according to Hathaway[2] privilege mostly Western human right concerns. Although women and their dependants are mostly 80% of the whole world's refugee population, yet in the determination process male applicants are far more successful than female because the persecution standard adopted in the Convention does that most of those granted refugee status are adult and male.[3] This Convention, drafted after the Second World War and at the beginning of the Cold War, does not recognise gender as a ground of persecution. Daoust[4] stresses that "…since the Convention…does not expressly identify gender as a ground of persecution, these women may go unrecognised as refugees, and thus be unable to gain access to adequate protection."[5] The Convention is silent on the issue of gender; and, while claiming to be gender-neutral, it sees persecution as any threat or loss of freedom to all human beings irrespective of their sex since all refugees face the same problems and will be treated equally. It appears that drafters thought that gender was too broad as a ground for persecution and therefore in adopting gender-neutral perspective, the Convention would guarantee equal treatment to both women and men. However, this seems to be unjust because the way these grounds are interpreted allows more accommodation for men than women refugees. It is remarked that while there is nothing that explicitly precludes women being recognised as refugees, state's interpretations of these international instruments both reinforces and reflects gender biases. This is since the basis for women's grounds of persecution like rape and sexual assaults does not always appear to be consistent with a typical asylum seeker's claim despite the fact that the degree and the nature of sexual violence perpetuated against women constitutes serious violation of their human rights. Therefore, gender neutral asylum procedures appear to be detrimental to women since the particular needs of women are not taken into account and this, as a result, is the main cause of inadequate protection of women in international refugee law.[6]
Moreover, Nancy Kelly[7] asserts that international refugee law fails to protect women who need special international protection from two particular kinds of persecutions that come, firstly, from types of harms that are particular to their gender (e.g. rape, sexual assault, bribe burning, genital mutilation, forced marriage, domestic violence, forced abortion, domestic violence, forced sterilisation, infanticide etc.). Secondly, women are not protected from male dominated society that imposes many forms of persecution to them simply because of their gender. Guy S. Goodwin-Gill[8] comments that "women suffer particular forms of persecution as women, and not just or specially because of political opinion or ethnicity. Even though men too may be sexually abused, their gender is not a consideration. Women may be raped because of their politics, but they are also raped because they are women and because rape inflicts a particular indignity and promotes a particular structure of male power."[9] Furthermore, many women face persecution for their refusal to conform to societal norms severely restricting their rights and activities. Johnson[10] emphasises that the extent gender is revealed in this masculine language, as it is the case in many legal texts, shows that male refugees were those in the drafters' minds. J. Greatbach[11] adds, "…by portraying as universal that which is in fact male paradigm, women refugees face rejection of their claims because their experiences of persecution go unrecognised."[12] That is why it can be said that international refugee law was developed from a male paradigm since it reflects male applicant's factual circumstances and therefore fails to respond to the particular protection needs of women.[13] In palliating this situation, the UNHCR "recommends the development by States of appropriate guidelines on women asylum seekers, in recognition of the fact that women refugees often experience persecution differently from refugee men."[14]
Rape, which involves any "forced sexual intercourse, or threat thereof"[15] and other sexual assault (i.e. female genital mutilation; mechanical or manual stimulation of the erogenous zones; the insertion of objects into the body openings; fellatio and oral coitus; the forced witnessing of sexual acts; forced masturbation or to be masturbated by the others etc.)[16] are amongst the kinds of persecutions that women suffer from because of their gender. The systematic sexual violence including rape suffered by women in Former Yugoslavia, Somalia, and Rwanda had shown that gender persecution involves the infliction of psychological, emotional, mental and physical suffering upon women victims[17]. Sexual violence may explicitly be politically motivated as, for instance, in 'ethnic cleansing'[18] as in Yugoslavia, in situation of generalised violence like in civil war or in interrogation methods. Authorities themselves or those acting under their approval often commit these rapes, sexual assaults and other forms of torture to women who are detained for political reasons. While those imprisoned for non-political reasons are usually subject to rape and other sexual assaults for the pleasure of their captors. Sometimes, government soldiers or opposition militias commit these rapes and other sexual assaults against civilian women in their campaign to terrorise the population.[19] Therefore, as state agents are those committing these sexual assaults against women, it seems right to assert that these abuses constitute persecution because they are "…normally related to action by the authorities of the country."[20]
For this reason, Macklin[21] criticises decision-makers who appear to be unable to grasp the nature of rape by state actors as an integral and tactical part of the arsenal of weapons deployed to brutalise, dehumanise, and humiliate women and demoralise their kin or community.[22] Moreover, since women suffer as well from these violence for their failure to conform to social mores. It seems right to point out that women are made vulnerable since these sexual assaults occur because of state's failure to protect them. Rape and sexual assaults constitute major factors in forced migration since many women prefer to leave 'home' because they are afraid of being degraded, ashamed or fear to suffer stigma or even being rejected by their society once it is disclosed that they were raped or sexually abused.[23] Thompkins[24] suggest that they happen in many circumstances and a key to understanding their injury is to know that even though in many cases the insult may have been intended for men through raping or sexually assaulting their women, these are internalised by women victims. This is because, firstly, women blame themselves for being raped and feel ashamed forever; and, secondly, they bear the physical injury. Lastly, they internalise a sense of guilt in their society, especially if they live in a society where men look at rape as an insult to themselves or the whole family. Heaven Crawley[25] comments that:
"…In many cultural contexts therefore, the experience of sexual violence may lead to the woman being ostracised by both her family and the community. She may be unable to marry or stay married or may be 'married off'. In some societies, a woman who has been raped may also be perceived as a culprit and consequently may be liable to punishment by the state."[26]
In addition, women victims of rape may also be banished, killed, or considered to have no alternative but to marry their male attackers or they may become prostitutes. All these show that sexual violence has serious social, psychological, intellectual and physical consequences such as pregnancy, STD's or HIV infections, pains, 'Rape Trauma Syndrome'[27], miscarriage, genital mutilation, 'traumataphobia'[28] and nightmares.[29] Concerning sexual assault, N. Toubia[30] highlights female genital mutilation (FGM), which involves assault and battery on women bodies (i.e. female circumcision[31], clitorodectomy or excision[32] and infibulation[33]) as a very good example of sexual assault that is being committed in breach of women's human rights. This is because the clitoris removal and more often the labia, with or even without infubilation, is not only much more serious, cruel or inhuman in medical sense but it is also a severe psychological and physical mutilation that constitutes a direct attack on women's sexuality.[34]
As Jacqueline Castel[35] explains, Sofia Campos-Guardado v. Immigration and Naturalisation Service[36] and Olympia Lazo-Majano v. Immigration and Naturalisation Service[37] are good cases that examined whether rape could be qualified as persecution on the ground of political opinion[38]. In the Sofia Campos-Guardado, Ms Sofia, a Salvadorian woman, went to visit her uncle's home when a group of guerrilla fighters broke into the house where they dragged herself, her uncle, three female cousins and one male cousin to a farm pit near the house. The attackers tied and gagged the women and, with machetes, they cut fleshes from men's bodies and shot them to death. After killing these relatives, male guerrilla fighters raped Ms Sofia with her three female cousins while other attackers were shouting political slogans. After raping them, they were untied and ordered to run. Later Ms Sofia discovered that one of her attackers was still following her with continuous harassment whenever she left the house. The assailant was even threatening to kill her if she ever reveals his identity as a rapist. Fearing the worse that may happen to her, Ms Sofia left her country and fled to the United States, where upon arrival she sought political asylum. However, although it was said that her uncle and cousin's claims could have been successful, her asylum was denied because rape was incidental and it was for 'personal motive' that is not connected to her political opinion. Although the US Board of Immigration Appeals (BIA) believed that Ms Sofia was telling the truth, it concluded that:
"[W]hile attackers may have been motivated by their own political goals, such as, for example the intimidation of other peasants involved in land reform, the record does not establish that [Ms. Campos-Guardado] was persecuted on account of any political opinion she herself possessed or was believed by her attackers to possess."[39]
While in the Olympia Lazo-Majano, the asylum seeker was repeatedly raped, sexually assaulted, humiliated and even harassed by her employer Rene Zuniga who was a Salvadorian army officer. Mr Zuniga kept on warning Olympia that since no one would 'get involved' with army members, he would have her tortured and killed as a 'subversive' if she tries to tell the authorities about his actions. As Campos-Guardado, Ms Olympia also applied for political asylum in the US because her life was in danger, as she cannot escape from Zuniga's torture while in Salvador. The BIA refused the case because her terrible personal mistreatment at the hands of one man does not amount to persecution. However, the Ninth Circuit clarified the matter by acknowledging rape as a form of persecution in refugee law since:
"Persecution is stamped on every page of this record. Olympia has singled out to be bullied, beaten and enslaved. Olympia's initial acquiescence does not alter the persecutory character of her treatment. That she continued to return to Zuniga's place after his initial attack upon her presents a pattern, all too familiar, of a victim identifying with the aggressor under the conditions of terror. She lacked 'sufficient ego-strength, self confidence and will power' to 'escape or cry out for help'…The persecution has been conducted by a member of the Armed Force, a military power that exercises domination over much of El Salvador despite the staunchest efforts of the Duarte government to restrain it. Zuniga had his gun, his grenade, his bombs, his authority and his hold over Olympia because he was a member of a powerful military group."[40]
Therefore, while rejecting the BIA's decision that Olympia and Zuniga relationship was purely personal, the court therefore found that Olympia had a political opinion. The Ninth Circuit held that Zuniga had imputed political opinion on Ms Lazo-Majano since he believed that he could suppress and dominate women. Hence, her fight and resistance against these abusive beliefs expressed a political opinion that women are to be set free from abuses. Nevertheless, Zuniga's position looks to have played an important role here since this decision could have been different if he was not a member of the Salvadorian Armed Force.
The recent US case of Fauziya Kasinga[41] is a very good example where sexual assault was accepted to constitute persecution in refugee law. In this case, a nineteen-year-old woman fled from Togo to avoid female genital mutilation as a young girl due to her influential father's opposition to the practice. After the dad's death, her aunt assumed control of the house according to the tribal custom and arranged for Kasinga who was still fifteen at that time to undergo FGM and marry a man twice her age. As a result, Kasinga fled to the US where the Board of Immigration Appeals granted her asylum.[42]
These three above cases show that sexual assault including rape is now being accepted as persecution under the Convention when they come from the state or the state is unwilling or unable to protect women victims. Since the Convention does not define the term persecution; and, as a result, its interpretation varies according to the context of each case, the UNHCR[43] advocates that threats to life or freedom on account of at least one of the five enumerated grounds in the Convention can amount to persecution. In addition, many international refugee law scholars such as Goodwin-Gill[44] assert that any act by which severe physical, psychological, mental, or social pain is inflicted on a person can constitute persecution. Consequently, rape and other sexual assault are seen as persecution because they involve "threat of deprivation of life or physical freedom"[45] and breach of fundamental human rights (i.e. torture, cruel, inhuman or degrading treatment, slavery, oppression, harassment, discrimination etc.).[46]
Nevertheless, most EU states are against this view since they see rape and sexual violence as the random expression of spontaneous sexual impulses by soldiers towards women, or sometimes as the common fate of women caught in war zones.[47] As UNHCR suggests, this shows simply a lack of awareness because rape and other sexual assault are serious violation of international law instruments that protect individual's personal bodily integrity and security.[48] Therefore, it can be advised that appearance of sexual violence in asylum claims should not lead adjudicators to conclude automatically that the claim is purely a personal harm since there appears to be no distinction between rape and other sexual assault used against women and the torture inflicted upon men.[49] This is because "…Severe sexual abuse does not differ analytically from beatings, torture, or other forms of physical violence that are commonly held to amount to persecution…"[50] Further:
"The fact that violence, including sexual and domestic violence, against women is universal is irrelevant when determining whether rape, and other gender specific crimes constitute forms of persecution."[51]
Rape and other sexual assault constitute grave breach of the fundamental human rights to liberty and security of the person, freedom from torture and other cruel, inhuman or degrading treatment or punishment. These rights are all covered in Articles 3 and 5 of the 1948 Universal Declaration of Human Rights[52], Articles 7, 9 and 10 of the 1966 International Covenant on Civil and Political Rights[53], Article 16 of the 1984 Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment,[54] and Article 6 of the 1979 Convention on the Elimination of All Forms of discrimination against Women. All these rights are so fundamental as they can never be derogated under international law[55]. Other international measures protecting women include Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights, the 1993 Declaration on the Elimination of Violence against Women and the 1994 appointment of a Special Rapporteur on violence against Women, which all show that international law is coming in rescue of women who are still suffering from daily sexual violence. Recently, the Special Rapporteur on Violence against Women recommended to the Commission on Human Rights that 'refugee and asylum laws should be broadened to include gender-based claims of persecution, including domestic violence.'[56] The 1993 UN Security Council's adoption of the General Secretary report that includes within the definition of "Crimes against humanity" any acts of rape that are done "as part of a widespread or systematic attack against any civilian population on ethnic, national, racial, or political grounds" shows how international law considers rape. For example, the systematic mass rape was said to constitute crimes against humanity as it is covered in the International Criminal Tribunals for Rwandan and Former Yugoslavia[57]. Rape and other sexual assaults violate as well the prohibitions of violence to the person, torture, cruel and degrading treatments as stated in the four 1949 Geneva Conventions, international humanitarian law and also in customary international law. Article 27 of the Fourth Geneva Convention of 1949 assert clearly that "…women shall be especially protected against any attack on their honour, in particular rape, enforced prostitution, or any other form of indecent assault." Additional Protocols I and II reiterate this provision by stating that "Sexual violence is a gross violation of fundamental human rights and, when committed in the context of armed conflict, a grave breach of humanitarian law."[58] Together, these international treaties and many regional instruments that also prohibit rape and other sexual assault have been already incorporated into the majority of state domestic law around the world. Consequently, these obligations form part of international customary law because of state's practices and opinio juris accepting them. In Europe, for instance, Articles 3 and 5 of the 1950 European Convention on Human Rights and Fundamental Freedoms protect anyone's rights to liberty, security, and freedom from torture. In Africa, Articles 4, 5 and 6 of the 1981 African Charter on Human and Peoples' Rights state clearly that everybody's rights and liberties are protected. While in Americas, Articles 5 and 7 of the 1969 American Convention on Human Rights give people the rights to humane treatment and personal liberty.
All these above international obligations oppose sexual violence since it constitutes serious harms, which, as a critical ingredient of the Convention's "well founded fear of persecution", is interpreted to include women who experience rape and other sexual assault in the hands of state authorities or those whom they are unwilling or unable to prosecute. Since rape and sexual assault have serious social, psychological, intellectual and physical consequences, the UNHCR advocates that once it is foreseen that returning a woman would result such consequences, and where she has no other basis for her claim, the applicant may be considered as a refugee sur place.[59] In accordance with the UNHCR, it appears right to recommend that "in procedures for the determination of refugee status, asylum-seekers who may have suffered sexual violence be treated with particular sensitivity."[60] This is because rape and other sexual assault committed for reasons of religion, race, nationality, membership of particular group or political opinion should be considered as persecution under the Convention definition of refugee in the Statute of the Office (Paragraph 6.A(ii)) and Article 1A(2) of the 1951 Convention if it is perpetrated "or knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection."[61] Hence, the UNHCR:
"…Supports the recognition as refugees of persons whose claim to refugee status is based upon a well-founded fear of persecution, through sexual violence, for reasons of race, religion, nationality, membership of a particular social group or political opinion…"[62]
This is because deporting such women refugees would be in breach of Article 33 of the Convention that prohibits any refoulement of any refugee to the frontiers or territories where her life or freedom would be threatened.[63]
Nowadays, the United states and Canada can be praised for accepting rape and other sexual assault committed by authorities or those whom they are unable or unwilling to prosecute, as acts of serious harm that should result in the granting of refugee status under the Convention.[64] For instance, the US case of Lazo-Majano[65] shows clearly that sexual violence including rape coming from the state is considered as persecution because it involves serious harm and it is in breach of fundamental human rights. In the Canadian case of Smith[66], the CRDD concluded that years of sexual and physical brutality suffered by a fifteen-year old Zimbabwean girl from forced marriage to a polygamous man amounted to persecution. This conclusion resulted from a deep analysis of the 1948 Universal Declaration of Human Rights and the 1962 Convention on the Consent to Marriage.[67] Moreover, it is noteworthy to comment that the Canadian tribunals asserted explicitly that rape or any threats of rape "are degrading and constitute quite clearly an attack on the moral integrity of the person and, hence, persecution of the most vile sort." While citing this Canadian precedent, Hathaway[68] points out that even "the threat to rape…is a sufficient basis for persecution"[69] for the granting of refugee status in international refugee law. For this reason, the UNHCR[70] advises that:
'A well-founded fear of sexual violence…can thus provide the basis for a claim to refugee status. The experience of rape or sexual torture as form of persecution might also constitute "compelling reasons arising out of the previous persecution" for not applying the cessation clauses in Article 1 C (5) and (6) of the Convention.'[71]
Here, Australia and New Zealand can be praised as well because they seem to interpret the refugee definition to include gender-related persecution like sexual violence including rape in their asylum determination process.[72]
However, although gender-related persecution like rape and other sexual assault are being accepted as persecution in Canada and the US, women victims of these evil crimes still have difficulties in establishing the failure of state protection or to provide evidence that shows that sexual assault really took place and maintain their credibility.[73] Another problem is that rape and other sexual assault claims can only be made on at least one of the five grounds of the Convention. J. Hathaway[74] opines that "Gender-specific claims to refugee status are, in fact, no different than any other claim to refugee status. You don’t need a new a new definition. You don’t need to manipulate the current definition. Gender-specific claims to refugee status ought to be assessed on exactly the same grounds as every other claim to Convention refugee status."[75] Nevertheless, presently both political opinion and membership of a particular social group seem to be the most appropriate Convention grounds from which gender-related persecution like sexual violence including rape can successfully be claimed.[76] Campos-Guardado and Lazo-Majano cases illustrate clearly that rape and other sexual assault can be considered as persecution on the basis of political opinion. However, although where the claimant is not directly involved in political activities in the conventional sense a claim for refugee status requires that political opinion be broadly defined as in Lazo-Majano, women still have many difficulties. These arise, for example, with the obligation of showing the nexus between their political opinion and fear of gender-related persecution and, as well, proving that the state is unable or unwilling to protect them. As a result, women are still less successful since most rape and sexual violence have no nexus with their political opinion and also many of those who suffer such persecution are not at all actively involved in political parties publicly, as in public demonstrations, rallies, speaking against the regime. This is since:
"…In some societies, overt demonstration of political opinion by women may not be possible as women are not allowed to formally participate in political life…Furthermore, the fact that a woman may challenge particular social conventions about the manner in which women should behave may be considered political by the authorities and may attract persecution treatment on this basis."[77]
Generally, women are less likely than men to be involved in high profile political activities but they are more often involved in 'low level' political activities that comprise private activities like providing foods, clothing, medical care, pass messages from political activists or hiding people.[78] Although all these activities are essential for the ongoing existence of political parties and they put women in risk of persecution, the international community still views them as inherently apolitical[79] since they involve more social, economic and cultural rights that lack public profile to attract the authorities.[80] However, it seems to be changing since in a recent appeal case, the UK adjudicator acknowledged that women involved in indirect political activities run actually greater risk of persecution than their directly involved male counterparts. Because: "The authorities in Uganda would not in any event be so reckless as to persecute…high profile politicians…who are very much in the eyes of the international community. At the end of the day, it is the "foot soldiers" like the applicant's mother who suffer the brunt of persecution."[81] This shows that private activities carried by women are inherently political since women are really being targeted. Consequently, women indirectly involved in political activities should be allowed asylum on the ground of political opinion since their activities constitute political resistance, as they imply a way of expressing opposition and these are no less valid than male dominated political activities.
Furthermore, political opinion may also be imputed as a result of women resistance and opposition against actions done by the authorities. For example, in Olympia Lazo-Majano, the Ninth Circuit Court imputed political opinion by holding that political opinion includes gender discrimination. Therefore, in sexually assaulting Olympia, Zuniga was holding the political opinion that men like him are allowed to dominate women like her and in fleeing this male domination, Olympia was expressing her political opinion as she refused to bow to this male domination over women. Accordingly, it can also be argued that rape is not for 'personal motives' in the way of sexuality as many decision-makers put it but it is an expression of power of men over women, which Olympia opposed.[82] However, for women who are raped or sexually assaulted for their involvement in politics, Spijkerboer[83] says that they suffer mostly double punishment because they "…are not only [sexually] assaulted on the basis of their opinion, but also because, as women, they should not participate in political arena."[84] That is why these women would appear to have no problem in proving the grounds of persecutory treatment under the Convention because as men refugees they would be able to make their case under the one of the five grounds of the Convention.
Secondly, because of their gender, women who are not politically active in the traditional sense can bring their asylum claims under 'membership of a particular social group'[85] since women are comprised within Hathaway's proposed three alternative classes for social group, as highlighted in Canada (Attorney General) v. Ward.[86] These are, firstly, groups defined by an innate or unchangeable characteristic; secondly, groups whose members voluntarily associate for reasons so fundamental to their dignity that they should not be forced to forsake the association; thirdly, groups associated by a former voluntary status, unalterable due to historical performance. As an example of social group in the first category, it is noteworthy to underline that the court named gender, along with linguistic background and sexual orientation. Moreover, Macdonald[87] explains that the social group definition that is being widely accepted is the one found in the US case of Matter of Acosta v. INS[88] where gender is clearly included. The court put that:
"We interpret the phrase to mean persecution that is directed to ward an individual who is a member of a group of persons all of whom share a common immutable characteristic. The shared characteristic might be innate one such as sex, colour, or kinship ties, or in some circumstances it might be a shared characteristic that defines the group such as former military leadership or land ownership…whatever the common characteristic that defines the group, it must be one that the members of the group cannot change because it is fundamental to their individual identities or conscience. Only when this is the case does the mere fact of group membership become something comparable to the other four grounds for persecution."[89]
Hathaway[90] stresses that gender is included because it "is properly within the ambit of the social group category…gender-based groups are clear examples of social subsets defined by an innate and immutable characteristic."[91] As L. Heise[92] explains, the only crime committed by women is their gender because:
"Every day, thousands of women are beaten in their homes by partners, thousands more are raped, assaulted and sexually harassed. And there are the less recognised forms of violence: in Nepal, female babies die from neglect because parents value sons over daughters; in Sudan, girls' genitals are mutilated to ensure virginity until marriage; and in India, young bribes are murdered by their husbands when parents fail to provide enough dowry. In all these instances, women are targets of violence because of their sex. This is not random violence; the risk factor is being female."[93]
Apart from sharing gender as an immutable characteristic and being treated differently from men, women constitute a social group since they "[to a greater extent than most social groups]…are an easily identifiable 'group'…possessing a combination of biologically and socially attributed characteristics."[94] While supporting this position, the UNHCR recommends that States are free to adopt the interpretation that "women…who face harsh or inhuman treatment due to having transgressed the social mores…may be considered as a 'particular social group' within the meaning of Article 1A(2) of the 1951 United Nations Refugee Convention."[95] Consequently, domestic or sexual violence, forced female genital mutilation, coerced family planing, combined with the lack of state protection may be considered as persecution on the ground of 'membership to a particular social group' under the Convention. The ground of social group has been successfully claimed in some institutionalised forms of gender-related discrimination and persecution involving female genital mutilation since this practice targets women, even though the relationship between the harm feared or inflicted and its reasons must be carefully investigated as in all cases. If the practice is deemed inherently persecutory, the social group can be constructed by using criteria that can help to narrow the grouping even further than nationality, as it was recently used in Kasinga.[96] In this case, the court constructed social group to include 'women from a certain tribe or ethnic affiliation'.[97] This is because "it remains particularly true that women have little legal recourse and may undergo threats to their freedom, threats or acts of violence, or social obstracisation for refusing to undergo this harmful traditional practice, or attempting to protect their female."[98]
Nevertheless, although these developments are promising, most decision-makers including courts and tribunals are still reluctant to recognise particular social group on the basis of gender as held in Matter of Acosta[99]. As a result, the notion of gender-related persecution under the concept of 'membership of a particular social group' is still unsettled in refugee law. Most EU countries do not still interpret 'particular social group' to include women who fear gender-related persecution because of fearing that its recognition will open doors to a floodgate of women refugees. Moreover, they argue that their asylum laws are gender neutral in the sense that everyone is treated equally before the law; and adopting this approach will tend to limit their interpretation of the refugee definition under the Convention. For instance, in Samira Adamu[100], a 20-year-old Nigerian was refused asylum by Belgian authorities although she was escaping from a reasonable fear of gender-related persecution of being forced to marry a polygamous man. This particularly illustrates clearly, how EU countries are still reluctant to accept gender as a basis of persecution that women are daily suffering from. Further, the UK has even refused to recognise sexual violence including rape as 'serious harm'; and, in many cases, rape has been characterised as being for 'personal motive' and therefore dismissed as inconsistent and irrelevant to the 1951 UN Convention.[101] In addition, despite the fact that Macdonald[102] refers to the existence of relevant international jurisprudence, there is yet very limited case law that recognises gender-defined social group. Until nowadays, only Canada and the US have issued Guidelines[103], which advocate more broader view of political opinion and particular social group while dealing with women fearing gender-specific forms of persecution such as sexual assault including rape. These Guidelines help decision-makers to sensibly consider women's asylum claims.[104] Although these guidelines are not binding as such, decision-makers are bound to explain their decision for not following them since the aim is to enhance asylum claims for women who are not politically active in the conventional sense. However, most EU countries including the UK have refused to adopt such Guidelines, as they argue that their domestic asylum laws are gender neutral since men and women are treated in equality before the law. Although this argument has merit for women who fear persecution on the grounds similar to that of men, it seems that women suffering from gender-specific forms of persecution such as sexual assault including rape would not be able to find protection under such laws.
Before concluding, it appears right to suggest that all UN member states need to adopt Guidelines like those in Canada and US in order to give women asylum-seekers a gender sensitive view of social group and political opinion. In July 1998, the Refugee Women's Legal Group[105] published a very good "Gender Guidelines for the Determination of Asylum Claims in the UK", which, if adopted by the government, would make Britain in the same line alongside Canada and the US. Adopting such Guidelines is very important because they will change the Convention from being approached with a partial perspective and interpreted through a framework of male experiences. These Guidelines will help women to get international protection from gender-related forms of persecution such as rape and other sexual assault since the law is there not only to protect but as well to deter women from suffering such torture, cruel, inhuman or degrading treatment. It seems right to oppose states that are against including gender-related persecution such as rape and other sexual assault within the grounds of political opinion and 'particular social group' for being too broad and therefore accepting them would create a floodgate of women claims. This is because the Convention's definition of refugee does not exclude a claimant's application solely because the persecution feared is also directed to a large number of people.[106] This argument suffers from myopia because the Guidelines established do not extend the refugee's definition but they only try to clarify and assist decision-makers while assessing women claims since the 'evaluation of such claims should be made from a gender inclusive rather than a gender neutral standpoint.'[107] In response to this, Hathaway outlines sub-groups of women who may qualify straightaway in the social group category. He says that single women who suffer persecution because of being without the protection of male relatives, in Moslem countries, should constitute social group since group members cannot control gender or the absence of male relatives. Therefore, choice of marital status becomes a fundamental human right that no body should be required to give up. Others include those who are persecuted for their refusal to conform to social mores. Saying also that accepting gender as a ground for persecution will create a floodgate of women refugees seems to be unreasonable because the number of women who are granted refugee status under these Guidelines is still negligible.[108] The reason is that women who are claiming for asylum on the ground of social group 'women' are asked to show that they have a well-founded fear of persecution by the State or from which the State cannot/or will not protect them. For example, in Canada, the adoption of the Guidelines has not increased the number of gender-related refugee claims since there is only a slight increase of 1 per cent in such cases. In the US, although gender is now recognised as a 'particular social group', the number of gender-specific claims of persecution is still very small, as since the adoption of these Guidelines only 15 such cases were received until recently.[109]
In conclusion, since gender is not recognised as a ground of persecution in the Convention, women gender-specific claims such as rape and other sexual assaults can only be related to at least one of the five enumerated grounds of persecution in the Convention. Presently, it is not possible to claim gender persecution alone although such a claim may result in the granting of Exceptional Leave to Remain. However, it should be said that women suffer gender-related persecution such as sexual assault including rape, female genital mutilation, sexual violence, coercive marriage family planning policy, domestic violence, forced marriage etc. simply because they are women. From the above analysis, it is right to say that rape or other gender-related persecution is typically, but not exclusively, persecution directed towards women, and thus a violation of human rights. Therefore, consideration of gender-related persecution like rape requires some understanding of women experiences and status in the society from which they claim persecution since these claims may normally fall within the 1951 Refugee Convention under political opinion and membership of particular social group. Rape and other sexual assault constitute gender-related forms of persecution since in some states, they are used as torture. Therefore, women victims have no legal remedy, as there is no one to prosecute for such crime, because it is either committed by the authorities themselves or by those whom they are unwilling or unable to prosecute.
Bibliography
1. Castel, Jacqueline R., Rape, Sexual Assault and the Meaning of Persecution, International journal of Refugee law, vol. 4, No. 1, Oxford University Press, 1992, pp. 39-56.
2. Crawley, H (1997) Women As Asylum Seekers: A legal Handbook, Immigration and Law Practitioners Association and Refugee Action.
3. Guy S. Goddwin-Gill, Refugee in International Law, Second Edition, Clarendon, Oxford, 1996
4. Nancy Kelly, Guidelines of Women’s Asylum Claims, International Refugee Law Journal (1993) vol. 6 International Refugee Law Journal
5. Jacqueline Greatbatch, (1989) "The Gender difference; Feminist Critiques of Refugee Discourse" International Journal of Refugee Law 3(3), pp. 585-605.
6. M. Mulligan, Obtaining Political Asylum: Classifying Rape as Well-Founded Fear of Persecution on Account of Political Opinion, Boston College Third World Law Journal, (1990) Vol. 10 (2).
7. Daoust and Folkelius, UNHCR: Symposium on Gender-Based Persecution, International Journal of Refugee Law vol. 8, 1996.
8. Bhabha. H. and Shutter. S. Women’s Movements: Women under Immigration, Nationality and Refugee Law, Mansel l Publishing Limited (1993).
9. Australian Law Commission, Violence and Women’s Refugee Status. 11 Part IV, http://uniserve.edu.au/alrc/report69/vol11/ALRC69Ch11.html
10. Spijkerboar.T, Women and Refugee Status; Beyond the Public/Private Distinction, Emancipation Council. 1994 p86, http://www.unhcr.cr/refworld/refbib/biblio/protect.html
11. Felicite Stairs & Lori Pope, No Place Like Home: Assaulted Migrant Womens’ Claims to Refugee status and Landings on humanitarian and compassionate Grounds (1990) 6 Journal of Law and Social policy 149.
12. Ninette Kelly, Working With Refugee women: A Practical Guide, (Geneva, 1989).
13. Amnesty International, Women in the Front Line: Human Rights Violations Against Women (New York: John D. Lucas Printing, 1990).
14. Sofia Campos-Guardado v. Immigration and Naturalisation Service, 809 F. 2d 285 (5th Cir. 1987).
15. Olympia Lazo-Majano v. immigration and Nationality Service, 813 F. 2d 1432 (9th Cir. 1987).
16. Office of UNHCR, Handbook on Procedures for Criteria for Determination of Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva, 1979).
17. Ann Wolbert Burgess & Lynda Lyttle Holmstrong, Rape Trauma Syndrome (1974) 131(9) Am. J. Psychiatry 981.
18. Refugee Women's Legal Group, Gender Guidelines for the Determination of Asylum Claims in the UK, July 1st 1998.
19. Kristin Bumiller, Rape as a Legal Symbol: An essay on Sexual Violence and Racism, 42 Univ. Miami L.R. 75 (1987).
20. Patricia Tuitt, False Images: The Law’s Construction of the Refugee, Law and Social Theory, Pluto press, 1996.
21. Johnson, A.B. (1989) International Protection of Women's Refugees: A Summary of Principle Problems and Issues, International Journal of Refugee Law 1(2), pp. 221-232.
22. Hathaway, The Law of Refugee Status, Butterworth, 1991.
23. Kelly, 1993, Gender related Persecution; Assessing the Asylum Claims of Women, Cornell International Law Journal 26(3), pp. 625-674.
24. T. L. Thompkins, (1995), Prosecuting Rape as a War Crime: Speaking the Unspeakable, Notre Dame Law Review 70(4), pp. 845-890.
25. A. Macklin, (1995), Refugee Women and the Imperative of Categories, Human Rights Quaterly, v. 17, pp. 213-277.
26. Smith v Canada (MEI) (February 19th 1993).
27. Goodwin-Gill. G, (1983) The Refugee in International Law, Clarendon Press
28. V. Oosterveld (1996) Women Seeking Refuge: Evaluating the Canadian Guidelines on Gender-Related Persecution (Unpublished), p. 12 (footnote 42).
29. L. Heise (1989), The Crimes of Gender, WorldWatch 2(2), pp. 12-21.
30. The Independent Newspaper, Thursday 30 July 1998, p. 13.
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[1] UNHCR Handbook on Criteria for Determination of Refugee Status under 1951 Convention and 1967 Protocol Relating to the Status of Refugees 1979, paragraph 34.
[2] Hathaway (1991) "The Law of Refugee Status", Toronto, Butterworths, p. 7.
[3] Patricia Tuitt, "False Images: The Law Construction of the Refugee", Law and Social Theory, Pluto Press, 1996, pp. 33-35 at p. 33.
[4] Isabelle Daoust and Kristina Folkelius, "Developments: UNHCR Symposium on Gender-Based Persecution", International Journal of Refugee Law, Oxford University Press, 1996, pp. 180-3.
[5] Ditto. p. 180.
[6] I. Daoust and K. Folkelius, ibid. p. 182.
[7] Nancy Kelly, 1993, "Guidelines of Asylum Claims", International Refugee Law Journal (1993), vol. 6, at p. 519.
[8] Guy S. Goddwin-Gill, Refugee in International Law", Second Edition, Clarendon, Oxford, 1996.
[9] Ditto. p. 364.
[10] Johnson, A.B. (1989) "International Protection of Women's Refugees: A Summary of Principle Problems and Issues", International Journal of Refugee Law 1(2), pp. 221-232.
[11] Greatbach, J. (1989) "The Gender difference; Feminist Critiques of Refugee Discourse" International Journal of Refugee Law 3(3), pp. 585-605.
[12] Ditto. p. 518.
[13] Kelly, 1993, "Gender related Persecution; Assessing the Asylum Claims of Women", Cornell International Law Journal 26(3), pp. 625-674, at p. 674.
[14] The UNHCR Sexual Violence Against Refugees; Guidelines on Prevention and Response 1995, p. 67.
[15] Jacqueline R. Castel, “Rape, Sexual Assault and the Meaning of Persecution”, International journal of Refugee law, vol. 4, No. 1, Oxford University Press, 1992, pp. 39-56 at p. 40.
[16] UNHCR Guidelines on the Protection of Refugee Women 1991 paragraph 59. However, it should be noted that this list is not exhaustive.
[17] Asma Abdel Halim, "Gender-Based Persecution", United Nations Expert Group Meeting on Gender-Based Persecution, Toronto, Canada, 9-12 November 1997. See Also Ivana Filice and Christine Vincent, "Women Refugees from Bosnia-Herzegovina: Developing a Culturally Sensitive Counselling Framework", Oxford University Press, 1994.
[18] Ditto. See also Christine Chinkin, "Symposium, The Yugoslav Crisis: New International Law Issues: Rape and Sexual Abuse of Women in International law", European Journal of International Law, v. 5, 1994.
[19] Heaven Crawley (1997) "Women As Asylum Seekers: A legal Handbook", Immigration and Law Practitioners Association and Refugee Action, at p. 88.
[20] See UNHCR Handbook 1979, paragraph 65.
[21] A. Macklin, (1995), "Refugee Women and the Imperative of Categories", Human Rights Quarterly, v. 17, pp. 213-277.
[22] Ditto. p. 225.
[23] The UNHCR agrees with this argument although the true scale of rape and sexual assaults is still unknown as many women fail to report. See the UNHCR Sexual Violence Against Refugees; Guidelines on Prevention and Response 1995 and T. Spijkerboer, (1994) "Women and Refugee Status: Beyond the Public/Private Distinction", Study Commissioned by the Emancipation Council, The Hague.
[24] T. L. Thompkins, (1995), "Prosecuting Rape as a War Crime: Speaking the Unspeakable", Notre Dame Law Review 70(4), pp. 845-890.
[25] Heaven Crawley, ibid.
[26] Ditto. p. 53.
[27] Ann Wolbert Burgess & Lynda Lyttle Holmstrong, "Rape Trauma Syndrome" (1974) 131(9) Am. J. Psychiatry 981.
[28] Traumataphobia is a defensive fear of circumstances similar to those of the rape of sexual attack. This may include fear of indoors or outdoors or being alone in the crowds. See J. Castel, ibid. p. 47.
[29] Refugee Women's Legal Group, "Gender Guidelines for the Determination of Asylum in the UK", July 1st 1998, pp. 8-10.
[30] N. Toubia (1995) "Female Genital Mutilation" in J. Peters and A. Wolper (eds) Women's Rights, Human Rights; International Feminist Perspectives, Routledge, London, 224-237. See also Minority Rights Group: Female Genital Mutilation; Proposals for Change 1992.
[31] Ditto. This is known in Muslim countries as 'Sunna' and it may involve removal of the prepuce ("hood") and/or clitoris tip.
[32] Ditto. This consists of the removal of the entire clitoris (both prepuce and glands) and the removal of the adjacent labia.
[33] Ditto. This is the most extreme form since it consists of the removal of the clitoris, the adjacent labia (majora and minora), and the joining of the scraped sides of the vulva across the vagina, where they are secured with thorns and sewn with catgut or thread. A small opening is left to allow urine and menstrual blood passage.
[34] B. Winter (1994) "Women, the Law and Cultural Relativism in France: The Case of Excision", Signs 19 (4), 939-974.
[35] Ditto.
[36] Sofia Campos-Guardado v. Immigration and Naturalisation Service [809 F.2d 285 (5th Cir. 1987)].
[37] Olympia Lazo-Majano v. Immigration and Naturalisation Service [813 F.2d 1432 (9th Cir. 1987)].
[38] M. Mulligan, Obtaining Political Asylum: Classifying Rape as Well-Founded Fear of Persecution on Account of Political Opinion, Boston College Third World Law Journal, (1990) Vol. 10 (2).
[39] See Campos-Guardado, J. Castel, ibid. p. 42.
[40] J. Castel, ibid. p. 43.
[41] See The Independent May 6th 1996; The New York Times June 22nd 1996; The Guardian July 6th 1996 and H. Crawley, ibid. at 5.5.1.1.
[42] Ditto.
[43] UNHCR Handbook (Geneva, September 1979).
[44] Guy S. Goddwin-Gill, 1996, ibid. pp. 66-79.
[45] Ditto. at pp. 67-68.
[46] Ditto.
[47] Crawley, ibid. p. 55.
[48] UNHCR Sexual Violence Against Refugees; Guidelines on Prevention and Response 1995.
[49] INS Considerations for asylum Officers Adjudicating Asylum Claims for Women, June 1995.
[50] Ditto.
[51] CIRB Guidelines on women Refugee Claimants Fearing Gender-Related Persecution: UPDATE November 1996, Section B (Annex 5, 192).
[52] See UN General Assembly Resolution 217A (III).
[53] See UN General Assembly Resolution 2200A (XXI).
[54] UN General assembly Resolution 39/46.
[55] See for instance the UNHCR's Note on Certain Aspects of Sexual Violence against Refugee Women [A/AC.96/822], 1993.
[56] Report of the Special Rappoteur on Violence Against Women, its Causes and Consequences, Ms. Radhika Coomaraswamy, submitted in accordance with the Commission on Human Right resolution 1995/85, E/CN.4/1996/53, para. 142 (o). See also I. Daoust and K. Folkelius, ibid. p. 183.
[57] I. Felice and C. Vincent, ibid.
[58] UNHCR 1995, ibid. p. 1.
[59] UNHCR 1995, ibid. p. 68.
[60] Ditto. p. 67.
[61] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status 1992, paragraph 65.
[62] UNHCR Executive Cttee Conclusion No. 73 (XLIV) (1993), paragraph (d) Refugee Protection and Sexual Violence.
[63] Guy Goodwin-Gill, 1996, ibid. pp. 117-171.
[64] Patricia Tuitt, ibid. pp. 33-35.
[65] Lazo-Majano v ISN [1987] 813 F.2nd 1434 (9th Circuit).
[66] See Smith v Canada (MEI) (February 19th 1993).
[67] H. Crawley, ibid. p. 58.
[68] Hathaway, 1995, ibid. p. 112.
[69] H. Crawley, ibid.
[70] UNHCR 1995, ibid. p. 68.
[71] Ditto. p. 68.
[72] See Australian Law Commission, Violence and Women’s Refugee Status. 11 Part IV, http://uniserve.edu.au/alrc/report69/vol11/ALRC69Ch11.html
[73] Refugee Women's Legal Group, 1998, ibid. pp. 23-24.
[74] Hathaway, J. (1990) "Gender Specific-Claims to Refugee Status and Membership in a Specific Social Group", Paper Presented at the Workshop of the Toronto Convention Refugee Determination Division (CRDD), Working Group on Refugee Women Claimants, December 5th 1990, (Unpublished).
[75] J. Hathaway (1990), ibid. p. 1.
[76] J. Castel, ibid. pp. 50-54.
[77] ADIMA Guidelines on Gender Issues for Decision-Makers, July 1996, Paragraph 4.25 (Annex 6). See also Spijkerboer, 1994, ibid. p. 46. Spikerboer advises that: "Whether or not the state may infringe on religious or political views citizens hold a deeply political issue. Therefore questions of whether or not a woman is free to wear a veil or not, to be circumcised, to exercise the human rights to education, to be free from male violence are about the demarcation of the public and 'private' sphere. Conflicts concerning the demarcation of the privacy are conflicts of a most essentially political nature, and should be considered as such in evaluating claim to refugee status."
[78] Ditto. See also Legal Aid Commission of NSW, Submission 588.
[79] V. Oosterveld (1996) "Women Seeking Refuge: Evaluating the Canadian Guidelines on Gender-Related Persecution" (Unpublished), p. 12 (footnote 42).
[80] ADIMA Guidelines on Gender Issues for Decision-Makers 1996, paragraph 4.25 (Annex 6).
[81] Appeal No. HX/71474/95 (February 1st 1996) (Unreported).
[82] Bert Van Herk, "Why Men Rape" (Meppel: Bomm, 1985) at p. 140. See also Amnesty International, "Women in the Front Line: Human Rights Violations against Women", (New York: John D. Lucas Printing, 1990).
[83] Spijkerboer, 1994, ibid. p. 25.
[84] Ditto.
[85] See for instance Neal, 1988; Greatbatch, 1989; Stairs and Pope, 1990; Castel, 1992; Goldberg, 1993; Fulleton, 1993; Kelly, 1993; Binion 1995; Patricia Tuitt, 1996.
[86] Canada (Attorney General) v. Ward [1993] 2SCR 689.
[87] Macdonald and Blake Macdonald's Immigration Law and Practice in the United Kingdom 1995, 394 paragraph 12.50.
[88] Matter of Acosta v INS [1985] Int. Dec. 2986 (BIA).
[89] Ditto.
[90] Hathaway, "The Law of Refugee Status", Butterworth, 1991.
[91] Ditto. p. 591.
[92] L. Heise (1989) "The Crimes of Gender", WorldWatch 2(2), pp. 12-21.
[93] Ditto. p. 12.
[94] F. Stairs and L. Pope, "No Place Like Home; Assaulted Migrant Women's Claims to Refugee Status and Landings on Humanitarian and Compassionate Grounds", Journal of Law and Social Policy vol. 6, 1990, pp. 148-225 at p. 167.
[95] UNHCR Executive Committee, in Conclusion No. 39 (XXXVI) (1985), paragraph (k) Refugee Women and International Protection.
[96] Ibid.
[97] Ditto.
[98] Feminist News, June 14th 1996 http://www.feminist.org/news/newsbyte/june96
[99] Ditto.
[100] The Independent Newspaper, Thursday 30 July 1998, p. 13.
[101] H. Crawley, ibid. pp. 58-59.
[102] Ditto.
[103] Canada adopted the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution (For text, see 5 IJRL 278 [1993]. While the US issued the Considerations for Asylum Officers Adjudicating Asylum Claims From Women (For text, see 7 IJRL 700 [1995]).
[104] I. Daoust and K. Folkelius, ibid. p. 181.
[105] Refugee Women's Legal Group, July 1st 1998, ibid.
[106] Jacqueline R. Castel, ibid. p. 53.
[107] Daoust and Folkelius, ibid. p. 183.
[108] Ditto. p. 181.
[109] Ditto.
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