Gender Persecution as a Ground for Refugee Status

Guest blogger: Nima Rostami, LL.M. student, University of San Francisco:

Today, Europe is witnessing a human tragedy in Syria. According to Amnesty International (2005), millions of Syrian refugees are desperately in need of resettlement; millions of Syrian refugees are struggling to survive in Turkey, Lebanon, Jordan, and Egypt; more than 3,500 people drowned while trying to cross the Mediterranean Sea in 2014. They risk their lives in order to get protection outside of their home countries. Not only are Syrians leaving their country, but also there are Afghan and Iraqi refugees among them. They flee their country of origin because of ongoing civil war, the insecurity they feel, and individual persecutions. This is considered the worst refugee crisis since the Second Word War.

Many of these refugees are women who are highly vulnerable and face different types of gender-related persecutions in their home country. Despite the international community’s focus on gender issues, the international laws regarding gender-related persecutions still remain old fashioned and patriarchal. According to the United Nations High Commissioner for Refugees (UNHCR) (2002), gender-related persecutions in many conflict-affected regions are obvious, and the patriarchal structure is very strong. Regardless of the well-documented gender-related persecutions around the world, the international law does not consider gender as a specified ground for refugee status.

According to the Article IA(2) of the 1951 Geneva Refugee Convention (Refugee Convention) “a refugee is someone who has 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 is unwilling to get protection from his or her own country.” If someone is seeking asylum outside his or her country of origin, he or she must refer to one of the convention grounds, e.g. race, religion, nationality, membership of a particular social group or political opinion. Since gender is not mentioned in the Refugee Convention, gender is not considered grounds for persecution, and this weakens women´s position regarding their asylum application. Explicitly defining gender as one of the persecution grounds in the convention would not only empower women´s legal status, but it would also give a legal framework for decision makers to consider their judgments based on the convention or national legislation.

Furthermore, the international law regarding refugees´ legal status, e.g. 1951 Refugee Convention, was created after the Second World War, and since 1951 many countries around the world have ratified the Refugee Convention. By signing the Refugee Convention, these countries have accepted it as theirs own law, and are obliged to respect the convention. During the Second World War, the gender issue was not a priority for the men who created the conventions and international laws. Even if the international laws including Refugee Convention are gender neutral, the gender specific issue is neither considered by the convention nor by the international laws. Lacking an explicit gender ground in the Refugee Convention, almost all of the signatory countries are prone to placing women in the “membership of particular social group” category. This is a weak refugee ground, and it does not satisfy women´s legal status. Women asylum seekers often originate from countries where the patriarchal structure is very strong, and they are not expected to be good storytellers with regards gender related issues.

For further clarification, it is worth mentioning that the Refugee Convention, even if it is gender neutral, is based on male experiences after the Second World War. The Refugee Convention does not explicitly recognize gender grounds as refugee status. Almost all decision makers in hosting countries refer women´s asylum application to “membership of particular social group.” During the past three decades, UNHCR has documented gender-related persecutions, e.g. domestic violation, forced abortion, forced sterilization, trafficking, female genital mutilation, sexual violence and abuse and rape. These are very specific violations that are obvious and have been documented by UNHCR. As result in 2002, UNHCR issued guidelines regarding women-specific persecution. The awareness of gender-related persecutions has also resulted in new regulations in Sweden. Eventually in March 2005, the Swedish government extended its national law by adding a specific gender ground for asylum. Thus, today under the Swedish Aliens Act, a woman can claim asylum in Sweden based on gender-related persecution. This is of course a success for the feminist movement in Sweden, and proof of awareness of gender-related persecution, but not many women have benefited yet.

To conclude, the international laws do not consider the role of gender persecution as a refugee ground. The vast majority of women´s asylum cases still are handled according to the UNHCRs guidelines, but the guidelines are not a convention or international law and have low dignity.  Moreover, there are persecutions that are not obvious, in spite of suffering experienced by many women, e.g. women´s right to divorce which is an almost impossible task in many countries, right to travel, right to special dress code. These kinds of systematic forms of harassment are not considered as issues for the international lawmakers, and there is still more to do regarding gender-related persecutions.

References

Amnesty International (June 2015). World leaders’ neglect of refugees condemns millions to death and despair. Retrieved (April 22, 2016) from https://www.amnesty.org/en/latest/news/2015/06/world-leaders-neglect-of-refugees-condemns-millions-to-death-and-despair

Swedish Aliens Act, Section V, Article 1 (2005). Retrieved (April 22, 2016) from https://lagen.nu/2005:716

The 1951 Geneva Convention on refugee status (1951). Retrieved (April 22, 2016) from http://www.unhcr.org/3b66c2aa10.html

The United Nations High Commissioner for Refugees (2002). UNHCR´s Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, Retrieved (April 22, 2016) from http://www.refworld.org/pdfid/3d36f1c64.pdf

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