Sexual and Gender-based Violence in the determination of Refugee Status: even the legal obstacle for women

Transcription

1 Sexual and Gender-based Violence in the determination of Refugee Status: even the legal obstacle for women Refugees from Côte d Ivoire walk with their belongings through Grand Gedeh County in eastern Liberia Reuters Master Thesis in International and European Public Law (accent on Human Rights Law) Author: Silvia Zerbetto Examination Committee: Ms. Stefanie Jansen, LL.M, Ms. Zahra Albarazi, LL.M Academic year:

2 Foreword Everyone has the right to seek and to enjoy in other countries asylum from persecution. The Universal Declaration of Human Rights, Article 14 (1) Last year, I heard at the radio the story of a Nigerian girl called Faith who was arrested for the murder of a man who had tried to rape her. Since in Nigeria she could be sentenced to death by hanging due to this crime, she fled to Italy. Unfortunately, in Italy she suffered another attempt of sexual assault by a compatriot. When the police arrived to arrest the man, discovered that Faith had no documents to stay in Italy and so she was expelled from Italy. Despite her lawyer had filed the request for political asylum and the residence permit for reasons of justice (to allow her to testify against her alleged aggressor), all attempts had been vain and she was executed. Her story enormously shocked me and has aroused the interest in me to become aware of reality of women who do not find shelter after fleeing from hostility. Through sites of international organizations such as Human Rights Watch, Amnesty International, etc., I learned that this is just one of many vicissitudes of girls and women who leave their land, the scene of terrible violence, to seek refuge and protection of their human rights in other countries. As UNHCR reported: By the end of 2010, there were more than 10,55 million refugees and in the same year, more than 845,800 people submitted an individual application for asylum or refugee status. Women and girls represented, on average, 49 per cent of refugees. 44 per cent of refugees and 31 per cent of asylum-seekers were children below 18 years of age. 1 Investigating the reasons why these women leave their countries, I discovered that they have been uprooted from their homes and forced to seek safety elsewhere because they are victims of harassment, human rights abuses, conflicts and civil strife. 2 Specifically, the forms of persecution that female refugees more frequently experience include sexual violence, physical and psychological, rape, female genital mutilation, forced marriage, domestic violence. Moreover, among the numerous 1 60 years and still counting, UNHCR Global Trends Susan Forbes Martin, Refugee Women, 1994, p.1. 2

3 testimonies of refugee women that I read, several of them tell how, once escaped from these dramatic situations, are rejected by host countries. In addition, their stories are even more cruel because female migrants who making the journey of "salvation" are also particularly vulnerable to abuses by traffickers and police. The impetus to write this thesis comes from the interest to analyze which are the international legal standards that govern the protection of women and discover why there is an attitude of reluctance to recognize the refugee status. I hope that the information that will be mentioned could create awareness about the humanitarian situation of refugee women and expose gaps in international law and lack of protection of human rights. Immigrants are not only the concern of international organizations, but their defense should be of the highest priority to the international community. I would like to thank my parents for their unreserved support in all these years of study and for giving me the opportunity to study abroad so that I could specialize myself in the field of human rights. In addition, I would like to thank my supervisor Ms. S. Jansen for her guidance and counsels and my second reader Ms. Z. Alabarazi for her interest in the topic of my thesis. Silvia Zerbetto Tilburg, July

4 Table of Contents: List of Abbreviations.. 5 General introduction 6 Formulation of the Problem and Objective of the Research.. 10 Research Methodology..12 CHAPTER 1: WOMEN IN REFUGEE LAW Introduction The United Nations Convention on the Status of Refugees International Human Rights Law Gender approach to international refugee law Guidelineas on the Protection of Female Refugees Conclusion 23 CHAPTER 2: ANALISYS AND GENDER-BASED INTERPRETATION OF ARTICLE 1A (2), 1951 CONVENTION Introduction Elements of the refugee definition The five reasons on which the fear of persecution may be based Gender analisys Gender-based interpretation of the fear of persecution.29 4

5 2.4.2 Gender-based interpretation of the reasons of persecution Gender-based interpretation of membership of a particular social group Conclusion.32 CHAPTER 3: GENDER-BASED PERSECUTION IN CASE LAW Introduction Sexual violence and gender as form of persecution Rape and other sexual violence as ground for persecution in international law The issue in the asylum decision: case law Analisys of cases General considerations Conclusion.43 CHAPTER 4: CONCLUSION & RECOMMENDATIONS Summary Analysis and Recommendations.45 Bibliography. 47 Table of Cases..51 5

6 List of Abbreviations U.N. UNHCR CESCR CCPR EU NGO IDPs CEDAW UDHR EP BIA FMG United Nations United Nations High Commissioner for Refugees International Covenant on Economic, Social and Cultural Rights International Covenant on Civil and Political Rights European Union Non-governmental Organization Internally displaced persons Convention on the Elimination of All Forms of Discrimination against Women Universal Declaration of Human Rights European Parliament Board of Immigration Appeal Female Genital Mutilation 6

7 General introduction Two of the young and pretty girls were taken to the front of the boat and raped. Everyone heard everything, all of the screams. That is what I remember, the screams. After a while, the screams stopped, the crying stopped, and there was silence. John Tenhula, 1991, p.25 While all the men were confined to the hold of the refugee boat some, if not all of approximately women and young girls who were kept in the cabin of the boat were raped. The youngest of these girls was around 12 years old. Soon afterwards, the pirates set the boat on fire with all the Vietnamese on board. In the ensuing panic, the Vietnamese grabbed buoys, cans and floats and plunged into the sea. The crews of the pirate boats then used sticks to prevent them from clinging to floating objects Women and children were the first to perish. A tale of Horror Refugees, Vol. 65, p.25, 1989 At the age 18, she arrived from the two-week trek through the Danakil desert, physically exhausted, badly dehydrated, and with blistering sores from exposure on her feet and body. But the most terrible part of her ordeal was the three days she was held at the border jail and raped repeatedly. Roberta Aitchison, in Cultural Survival Quarterly, Vol.8, No.2, p.26, summer 1984 Protection of female refugees is at the heart of the responsibility of the International community because women are particularly vulnerable to different acts that threaten their safety. 3 Worldwide 3 Susan Forbes Martin, Refugee Women, 1994, p

8 they have reported traumatic stories of abuse and suffering, including rape and other sexual assaults. 4 Indeed, women and girls often become refugees or displaced as a result of physical and sexual abuse and exploitation. They continue to be exposed to the danger of sexual violence during the exodus, during their stay in refugee camps and during their stay in the country of asylum, as well as during and after repatriation. A study conducted by UNHCR said that prior to flight, women can be abused by the police, military officials or they may be held, which increases the risk of sexual violence and torture. While, during flight, refugees may be sexually attacked by pirates, bandits, members of the security forces, smugglers or other refugees who extort sex in exchange of their safety and onward passage. 5 Furthermore, the countries of asylum do not always provide protection from sexual violence; women and girls are too often forced to engage in sexual activities in exchange for food and other basic necessities and, in addition, they may be involved in trafficking for prostitution and exploitation. Moreover, during the return and reintegration in the country of origin, refugees may be subject by governments to punishment to have escaped. The Government, on whose territory the abuses described above are often committed, should afford women protection and should be responsible for conducting investigations into the crime, identifying and prosecuting the perpetrators. However, notwithstanding human rights standards, host governments often show little concern for the violence experienced by refugees. 6 Women interviewed by Human Rights Watch during a visit to the Tanzanian refugee camps have stated that: The justice system does not adequately investigate, prosecute and punish executor of sexual violence. Despite the existence of laws punishing rape and assault, local authorities leave women with little hope of seeing their attackers held accountable. In addition, refugee women are discouraged from other refugees from taking complaints about sexual violence to the police or the courts. Those who submit cases often face recrimination and guilt within the community of refugees, including their families. 7 4 See e.g., Human Rights Watch, "Afghanistan: The Massacre in Mazar-I Sharif,"(New York: Human Rights Watch, November 1998.); Human Rights Watch, "Sierra Leone: Getting away with Murder, Mutilation, and Rape," (New York: Human Rights Watch, June 1999.); Human Rights Watch, Burundi: Proxy Targets: Civilians in the War, (New York: Human Rights Watch, March 1998.); and Human Rights Watch, 2000 World Report, (New York: Human Rights Watch, December 1999.). 5 Sexual Violence Against Refugees, Guidelines on Prevention and Response, Geneva 1995, UNHCR, p.5. 6 Global Report on Women's Human Rights, Human Rights Watch, p Seeking Protection: Addressing Sexual and Domestic Violence in Tanzania's Refugee Camps, Human Rights Watch. Available at: 8

9 As it was described above, in most societies the victim tends to be blamed because they are a source of shame for the family group and the community with the result that women are often marginalized. This form of social exclusion leads to further emotional damage to women. For fear of social exclusion, many survivors prefer not to report incidents of violence. In addition, refugee women do not speak the local language or the police do not investigate rapes. These factors deny refugees the possibility of access to justice. If national laws do not provide adequate safeguards against sexual violence, this can be repeated without impunity. The attitudes to blame the victim by the community are often reflected in the courts. Many sex crimes are not punishable or the persons responsible are punished with derisory sentences. Thus, victims of emotional damage are also humiliated by the fact that the perpetrator is not guilty. A report by Human Rights Watch, regarding sexual assault of refugee and displaced women, has stated that rape and other forms of sexual discrimination are frequently gender-specific. Female refugees are raped because of their gender; irrespective of their age, ethnicity, or political beliefs. 8 These acts of sexual violence and gender violate various human rights that are protected by international instruments. The Convention on the Elimination of All Forms of Discrimination against Women, adopted by the UN General Assembly in 1981, the United Nations Declaration on the Elimination of Violence against Women, by the General Assembly in 1993 and the Beijing Declaration and Platform for Action adopted in 1995, embrace all forms of aggression such as violence against women and girls. 9 Furthermore, the UN Agency for Refugees, UNHCR has a mandate to supply international protection to refugees and look for long-lasting solutions to their necessities. 10 These documents particularly deal with the issues of sexual and gender-based violence against women and girls. Moreover, to improve protection, UNHCR has developed two forms of guiding principles, the Guidelines on the Protection of Refugee Women in 1991 and later the Sexual Violence Guidelines in 1995 with the aim to address the problem of rape in refugee camps. These documents suggest precautionary measures to prevent sexual violence. 8 Global Report on Women's Human Rights, Human Rights Watch, p Sexual and Gender-Based Violence against Refugees, Returnees and Internally Displaced Persons, Guidelines for Prevention and Response, 2003, UNHCR, p Sexual and Gender-Based Violence against Refugees, Returnees and Internally Displaced Persons, Guidelines for Prevention and Response, 2003, UNHCR, p. 9. 9

10 Formulation of the Problem and Objective of the Research International law protects those who, for fear of persecution, flee from their countries to seek refuge in a host country. The Geneva Convention on Refugees of 1951 and its 1967 Protocol constitute the primary source of international refugee law. The refugee definition enshrined in the Convention states that must be considered refugee any person 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 to or, owing to such fear, is unwilling to avail himself of the protection of that country. 11 It is easy to deduce that the definition does not consider the gender as one of the reasons that causes the fear of persecution. 12 This did not particularly surprise considering that the Convention was written in a historical era in which specific forms of persecution suffered by women were not yet recognized. However, this absence has been partially filled, over the years, from publication by the United Nations High Commissioner for Refugees, of the Guidelines on the Protection of Refugee Women to clarify and define the specific characteristics and difficulties of women asylum seekers, as previously mentioned. The UNHCR Guidelines suggests that when women fear persecution or severe discrimination on the grounds of their sex, they are regarded, in the determination of the status, as members of a particular social group. In this regard, the UNHCR Executive Committee has recognized that states are free to adopt the interpretation that women refugees, victims of inhuman treatment for having transgressed the social mores of the society in which they live, may be considered as a particular social group, as defined in the 1951 Convention. The Guidelines also suggest that there are conditions for the recognition of refugee status when a government cannot or will not protect women subject to abuse for having transgressed the social norms or standards. However, Guidelines have found difficulties to be applied and, although they have helped to strengthen the protection, they were not decisive to address the problem of violence. Many 11 Article 1 (2) of the United Nations Convention on Refugees of UNHCR, The World's Women 2000: Trends and Statistics is available from United Nations Publications. 10

11 experiences of women have shown that their request to obtain the refugee status is not been herad because their stories of sexual violence were not considered as valid reasons. After considering that there are several documents that consider sexual violence as a reason to obtain the refugee status, the purpose of this thesis will be to reflect on whether these texts have guaranteed effectively protection to female refugees. As it has been said, gender-related persecution is not explicitly mentioned in the 1951 Convention. However, over the years, part of the doctrine seems to believe that sex and gender already form a part of the 1951 Convention since the definition of membership of a particular social group might include individuals who have suffered abuses. In this essay, it will be analized why the violence, in same cases, is still regarded as not sufficient reasons for women to obtain the refugee status by authorities, to which is left the discretion to consider whether the case falls within the parameters of a particular social. 13 It will be argued whether considering women, victims of violences, as members of a social group, is sufficient to defend these people from persecution. Thus, one wonders if a proper interpretation of the five reasons to obtain the refugee status, listed in Convention, allows overcoming the absence of explicit reference to problems of women. Furthermore, the concern will be what role UNHCR Guidelines play for preventing or reduceing the gender-based persecution within the national policies of states that have ratified the Convention. 14 In the first chapter, the International law that regulates the right of refugees and the 1951 Convention on the Status of Refugees will be analyzed briefly. Subsequently, the research will focus on the gender s perspective in order to examine the main steps that have advanced over the decades about the issue of women. Guidelines issued by UNHCR will be analyzed to provide appropriate benchmarks for an interpretation of gender in international refugee law. In the second chapter, I will try to investigate what is meant by persecution and how the five reasons, the fear on which it is based, are interpreted according to a gender perspective. In the third chapter, several examples of women who have fled from violence cases testify to the difficulty of being recognized as refugees. Thus, the effectiveness of the regulations, which will have been set out, will be put on trial. The grounds on which refugee women face rejection by the authorities to be considered in need of protection will be 13 Emiliana Tapia, Refugee Women - A Kenya Case Study, Posted in Development Review, Sharon Pickering, Gender Persecution: A Response to the UNHCR Guidelines, pag

12 mentioned. It will be assessed wheter the Convention should be improved or updated in the light of the emergence of the category of gender, or whether states have to adapt to the interpretation of the Protocol and other international documents. Feasible recommendations and guidelines will be considered, respectively, for the international community and states. The overall analysis is to demonstrate the need to implement the Guidelines and a possible reformulation of the definition of refugee that properly consider the forms of persecution suffered by women and the need to recognize the gender. Research Methodology Data presented in this report is drawn from a variety of sources including official reports from the UN Refugee Agency and legal documents, academic articles, NGO reports. Research for this paper was conducted through available literature regarding International migration and asylum law. Further, position papers from experts in refugee law have been consulted and relevant articles from human rights organizations and women s rights organizations have been considered. It has been necessary to examine the legislation on refuge law and its application; however, this paper aims to debate the gender-based persecution not only in a legal-based manner, but also through considering the reality of the female refugees. For this reason, different cases have been considered to observe the discrimation women have suffered; women's history has been the starting point for a legal analysis of the international refugee law. Furthermore, since the United Nations High Commissioner for Refugees said that in 2007, about 3 percent of the world's population turned out to be a migrant, it is necessary to make the distinction between who is a displaced person, who is a refugee and who is an asylum seeker. 15 A glossary of key terms relating to the protection of immigrants will be given below with the aim of clarifying that the international law provides specific definition and protection. Displaced person: according to the Guiding Principles on Internal Displacement, a person who has been forced or obliged to flee his or her homes or places of habitual residence... mainly because of conflict concrete, situations of generalized violence, 15 Refugees and internally-displaced persons, Federal Department of Foreign Affairs, Swiss Confederation. Last modification: Available at: 12

13 violations of human rights, natural and manmade disasters, or in order to escape their consequences, and who has not crossed international borders recognized a state. 16 Refugee: Acording to the 1951 Convention, a person forced to flee his or her own country and unable or unwilling to receipt or use of his protection, having suffered or fear of persecution for reasons of race, religion, nationality, membership of a particular social group or his political opinions. Asylum-seeker: A person whose request or application for asylum has not been finally decided on by a prospective country of refuge UNHCR, La Convenzione Sullo Status DeiRifugiati, Aspetti Storici, Giovanni Ferrari, pag.36. Available at 17 UNHCR, REFUGEE PROTECTION: A Guide to International Refugee Law, pag

14 CHAPTER 1: WOMEN IN REFUGEE LAW 1.1 Introduction Throughout the world and over the centuries, societies have welcomed frightened, weary strangers, the victims of persecution and violence. 18 Individuals, who suffer violations of their rights and they are not or cannot be protected by their governments, leave their homes and their families to seek refuge and protection in another country. Accordingly, if the fundamental rights of those seeking shelter are not respected, the international community is called to guarantee the respect of those rights. 19 After the Second World War, with its dramatic events, the massive population movements that characterized those years highlighted the need to create an organization body aimed at protecting refugees. In fact, Article 14 of the Universal Declaration of Human Rights of 1948 states: in front persecution, every person has the right to enjoy asylum in another country. Thus, in December 1949, the United Nations General Assembly decided the establishment of the United Nations High Commissioner for Refugees and the following year its Statute was approved. The prominent features of the UNHCR were twofold: on the one hand, it provided the international protection of refugees; on the other, it sought permanent solutions to their problems, assisting governments in integration with the national community. 20 It can be said that the UNHCR's functions have remained unaffected over the years, but that the operating environment and type of activities have changed. First, the size and geographic scope of operations have increased, the organization initially focused on providing aid to about four hundred thousand refugees concentrated mainly in Europe, today, it takes about twenty million people around the world. 21 Secondly, the organization has expanded its range of interventions. While, at the beginning, it was mostly working to facilitate the resettlement of refugees, afterwards, as UNHCR intervened in other parts of the world, it has been involved in activities such as providing medical support or organizing programs for specific categories of vulnerable people, such as women, children and disabled. Third, the 18 UNHCR, REFUGEE PROTECTION: A Guide to International Refugee Law, pag UNHCR, REFUGEE PROTECTION: A Guide to International Refugee Law, pag UNHCR, The State of the World's Refugees: Fifty Years of Humanitarian Action, pag UNHCR, The State of the World's Refugees: Fifty Years of Humanitarian Action, pag

15 categories of persons benefiting UNHCR's increased activity are no longer just refugees but also displaced asylum seekers, stateless persons and victims of armed conflicts. 22 Finally it should be noted the significant increase of non-governmental agencies and organizations participating in the programs of UNHCR to protect and assist refugees in all areas of the world. 23 The activities of the UNHCR is based on a set of international standards and instruments of international humanitarian law, as international and regional treaties and declarations, binding and not binding, which specifically meet the problems of refugees. 24 The next paragraphs will present which are the rules and international standards governing the right of refugees. In the first section, the 1951 Convention will be considered as representing the first document dealing with refugees and, subsequently, in the second sectin, it will be discussed as refugee law is closely linked to human rights law. The third section will analyze the Guidelines, issued by the UNHCR, aimed at providing an interpretation of appropriate benchmarks for the gender of international refugee law and protection of women fleeing. 1.2 The United Nations Convention on the Status of Refugees The first international document to enshrine a definition of refugee is the Convention on the Status of Refugees, adopted by the United Nations Conference held in Geneva in 1951 and entered into force April 22, In light of the historical events that have characterized the first half of the last century and attracted the growing interest of the international community for the fate of thousands / millions of refugees in Europe and other continents, the 1951 Convention is the result of a historical and conceptual process that has proven innovative mechanisms for protection and assistance of refugees. The aim of this Convention is to consider the refugees as individuals against whom, in their country of origin, there is or there should be the danger of violation of human rights established by Universal Declaration. 25 The 1951 Convention, in Article 1A (2), states that must be considered a refugee any person who: 22 UNHCR, The State of the World's Refugees: Fifty Years of Humanitarian Action, pag UNHCR, The State of the World's Refugees: Fifty Years of Humanitarian Action, pag UNHCR, The State of the World's Refugees: Fifty Years of Humanitarian Action, pag The recognition of refugee status for women persecuted for reasons of gender, Zonta International, Advancing the Status of Women Worldwide, Zonta Club Moncalieri, Area 3 District 30 - N. 176, pag.18. Available at: 15

16 As a result of events occurring before 1 January 1951 and owing to 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. 26 This Article defines the term refugee, but leaves to the Governments of Member States the task of establishing the most appropriate procedures for determining refugee status. However, since the procedures adopted by different States Parties to the Convention and the Protocol vary widely, in 1997, the Executive Committee (EXCOM) of the United Nations High Commissioner for Refugees, with the Conclusion No 8 / XXVIII, indicated a number of conditions and requirements to ensure that refugee applications are appropriate and consistently evaluated. The text of the Convention was approved by 24 states participating with two abstentions, and was signed by fourteen, to which other countries would be added over the years, until it reaches the current number of 142 (141 are States Parties to the Protocol 1967) of a total of 191 member countries of the United Nations. The feature of the Convention and Protocol is that they do not oblige Contracting States to admit asylum seekers and refugees in their territory, but they lay down rights and duties of refugees already living in the country of asylum. The only obligation on the Contracting States is not to expel or return (refouler) a refugee to the frontiers of countries where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular group social, or political opinion (Article 33 of the 1951 Convention). 27 The Convention introduced geographical and time limits; since it was drafted at the end of World War II, the protection was granted to individuals who had fled because of events that occurred in Europe between 1 August 1914 and 1 January However, the increase of population movements in the world brought out the need to eliminate these two limits. The Additional Protocol, signed in New York January 31, 1967 and entered into force on 4 October of that year, solved this problem by removing the limitation of time, while the decision to maintain the geographical limitation or not was left to the states. 26 United Nations Convention Relating to the Status of Refugees, UNHCR, La Convenzione sullo Status dei Rifugiati, Aspetti Storici, Giovanni Ferrari. 28 UNHCR, Refugee Protection: A Guide to International Refugee Law, pag

17 The 1951 Convention, together with the Protocol of 1967 is still the most important instrument of international law and the only universal instrument in this field. Unlike other human rights conventions, the Convention on the Status of Refugees and its Protocol do not have a committee to monitor compliance with the provisions of such documents. However, the High Commissioner for Refugees compensates this lack as provided for in Article 35 of the Convention International Human Rights Law From the Convention on the Status of Refugees of 1951 to the present, only a modest evolution of the law relating to refugees has developed in comparison with the remarkable progress that has characterized the field of international law of human rights. At the time of its writing, the Convention of 1951 was only the second major human rights convention prepared by the United Nations. Prior to its adoption, only the Universal Declaration of Human Rights was drawn up, which had no binding force at that time. Thereafter, with the creation of the two International Covenants 30 of 1966 and the establishment of regional agreements in Europe, Africa and America, the international law of human rights has become binding. The International Covenant on Civil and Political Rights is considered particularly important because it extends its protection to all individuals who are in the territory of a Member State. The Human Rights Committee has explicitly stated that each of the rights enunciated in the Covenant must be guaranteed to citizens and foreigners without discrimination. 31 More recently, the Committee went further and said that the rights must be exercised by all individuals regardless of nationality or 29 Article 35 of the 1951 Convention: Co-operation of the national authorities with the United Nations 1. The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention. 2. In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information and statistical data requested concerning: ( a ) The condition of refugees, ( b ) The implementation of this Convention, and ( c ) Laws, regulations and decrees which are, or may hereafter be, in force relating to refugees. 30 The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. 31 UN Human Rights Committee, General Comment no. 15: The position of aliens under the Covenant,

18 lack of citizenship, such as asylum seekers and refugees. 32 Thus, the International Covenant on Civil and Political Rights extends its protection to refugees, however, for certain categories of rights, it is rather shallow. For example, the Covenant guarantees the fairness in the judicial process, but makes no reference to how one can access the justice system. 33 It is easy to understand the difficulties in which refugees and other foreigners come across when they need legal assistance. The importance of refugees rights is even more evident if one considers the International Covenant on Economic, Social and Cultural Rights (CESCR). Despite the principle of nondiscrimination is equally regarded also in the International Covenant on Civil and Political Rights, article 2(3) states that developing countries may determine to what extent they would guarantee to individuals without citizenship the economic rights recognized in the Covenant. Since the majority of refugees worldwide are in developing countries, it can be assumed that the employment opportunities or benefits for the support to these refugees may be denied. However, the Convention on the Status of Refugees points out that economic rights are fundamental. Similarly to the CCPR, the CESCR contains the definition of economic rights, but there is not a real plan of how those rights must be implemented to ensure effective refugees protection Gender approach to international refugee law When the Convention on the Status of Refugees of 1951 was formulated, the drafters decided that in order to consider an individual as a refugee, he or she must demonstrate a well-founded fear of persecution based on race, religion, nationality, and membership of a particular social group or political opinions. Therefore the ground of gender seems to be absent. As the office of UNHCR noted, the persecution based on gender was not deliberately omitted, but the drafters did not consider it. 35 The government delegations, which took part in drafting the Convention, paid special attention to resolve the situation of thousands of European refugees following the tragic events of World War 32 UN Human Rights Committee, General Comment no. 31: The Nature of the general legal obligations of states parties to the Covenant, J. C. Hathaway, The rights of refugees under international law, Cambridge, 2005, pag J. C. Hathaway, The rights of refugees, pag Jenny-Brooke Condon, Asylum Law s Gender Paradox, 2002, pag. 214; J. Kumin, Gender: Persecution in the spotlight, in Refugees, 2001, pag

19 II. They had not yet been able to accrue sufficient sensitivity on matters relating to gender issues, and in particular, there was no awareness of the specific forms of persecution suffered by women. 36 Only during the seventies an increasing awareness of issues related to women led to the adoption of the Convention on the Elimination of All Forms of Discrimination against Women. 37 The Convention represents the first significant effort to create a body of international law of human rights that had as its object the rights and interests of women. The increasing attention towards the issues related to women caused the European Parliament in 1984 to establish that women subjected to treatments from inhuman and cruel customs and customary practices should be considered as a social group within the meaning of Article 1 of Convention on the Status of Refugee. 38 The UNHCR Executive Committee has reflected this opinion positively and, with its several Conclusions, 39 has confirmed that women are systematically exposed to specific situations of vulnerability. In addition, sexual violence and the threat to personal safety of refugee women were considered serious breach of human dignity. For this reason, the conclusions recognize the refugee s status to women as membership to a particular social group, when they are victims of cruel or inhumane treatment due to the transgression of the social norms of their society. With the aim of ensuring adequate protection for women, the Executive Committee urged the countries of the international community to adopt specific measures and develop gender policies in programs for refugees. Afterwards, Executive Committee has intervened again strongly condemning sexual violence persecution and it has also recommended that each state might adopt Guidelines on Women asylum seekers to identify the different types of persecution that women may be subjected H. Crawley, Refugees and Gender. Law and Process, Bristol, 2001, pag The Convention on the Elimination of All Forms of Discrimination against Women was adopted by Resolution 34/180 by the UN General Assembly on 18 December 1979 and entered into force on 3 September Resolution on the application of the Geneva Convention relative to the Statute of refugees, in OJEC C 127 May 14, UNHCR, Executive Committee Conclusion no. 39, Refugee Women and International Protection, 1985; UNHCR, Executive Committee Conclusion no. 46, Conclusion on the International Protection of Refugees, 1987; UNHCR, Executive Committee Conclusion no. 54, Refugee Women, 1988; UNHCR, Executive Committee Conclusion no. 60, Refugee Women, 1989; UNHCR, Executive Committee Conclusion no. 73, Refugee Protection and Sexual Violence, 1993; UNHCR, Executive Committee Conclusion no. 79, Conclusions on International Protection, 1996; UNHCR, Executive Committee Conclusion no. 81, Conclusions on International Protection, 1997; UNHCR, Executive Committee Conclusion no. 87, Decisions and Conclusions on International Protection, A. Edwards, Age and gender dimensions in international refugee law, in E. Feller, V. Türk, F. Nicholson (eds), Refugee Protection in International Law. UNHCR s Global Consultations on International Protection, Cambridge, 2003, pag

20 These conclusions were issued in the same year in which the second UN World Conference on the Rights human was held in Vienna. 41 Here, besides confirming the universality of human rights, the problem of violence against women has been highlighted and it was stated that the human rights of women must be integral part of United Nations activities in the field of human rights. Following this recommendation, the General Assembly of UN adopted in December of that year the Declaration on the Elimination of Violence against Women. 42 The Declaration as well as being a complement to the Convention Elimination of All Forms of Discrimination against Women, is the most advanced document at the international level on this issue. The Declaration offers a very wide meaning of violence that is intrinsic in the private and public sphere of women s life. The idea of violence includes physical harm, sexual and psychological violence, beatings, rape, and genital mutilation, violence related to exploitation, trafficking in women and forced prostitution. It is relevant to note that in these years the United Nations Security Council adopted the Statutes of the Tribunals for the former Jugoslavia in and of the Rwanda Tribunal in to punish the responsable of the atrocities that were suffered by women during conflict in those territories. However, the only forms of sexual violence expressly mentioned as a crime against humanity, are respectively rape in the Statute of the Tribunal for the former Yugoslavia and rape and force prostitution in Statute of the Tribunal for Rwanda. These two statutes have been crucial for the adoption in 1998 of the Statute of Rome establishing the International Criminal Court. 45 The statute considers the Violence against women in Article 7 in a more analytical way than the statutes of the two Courts. Article 7 includes, in fact, among the crimes against humanity, even the persecution for reasons related to gender. The offenses, which may constitute war crimes, include rape, forced prostitution, sexual slavery, forced pregnancy, sterilization forced conduct. The adoption of this new legislation constitutes a fundamental step forward for an expansion of human rights and criminal law, specifically about the violence suffered by women. 1.5 Guidelines on the Protection of Female Refugees 41 The Vienna Conference on Human Rights was held 14 to 25 June The Declaration on the Elimination of Violence against Women was adopted by the General Assembly Resolution 48/104 of 20 December UN Doc S/25704 of 3 May UN Doc S/955 November 8, UN Doc A/Conf.183/9 July 17,

21 The many contributions of the Executive Committee of UNHCR and the growing attention towards gender issues gave the impetus, in 1991, to the adoption of the Guidelines on the Protection of Refugee Women. 46 The objective of the Guidelines is to establish the different types of human rights violations that can be inflicted on women only for the fact that they are female. The document is divided into five main sections: the first introduces the specificities of women asylum seekers and the second contains procedures to assess the degree of protection to be implemented. 47 The third section suggests the different types of protection that must be prepared according to different situations; this is further divided into two parts, the first deals with problems related to the physical safety of refugee women; the latter considers the legal problems. 48 The fourth section proposes improvements that can be implemented to prevent the violence at the border and in refugee camps. 49 Finally, the fifth section identifies the specific actions to be implemented after the identification of violent acts. 50 In 2002, the United Nations High Commissioner for Refugees published two new important documents: the Guidelines on International Protection: Gender-Related Persecution, 51 and Guidelines on the International Protection which elucidated the concept of belonging to a particular social group. 52 They claim that the concept of gender-based persecution includes a wide range of situations in which the gender is determinant. Thus, it must be taken into account in recognise the refugee status. In addition, these documents clarify that, despite the fact that gender does not appear in the definition of refugee, it is widely accepted it can influence the type of persecution. The refugeedefinition, therefore, properly interpreted, includes instances based on gender, so there is no need to add another category to the 1951 Convention definition. 53 Furthermore, the Guidelines then list the acts to which we should refer in case of female gender-based violence; these are rape, violence related to dowry, forced marriages, honor killings, punishment inflicted on those who break the social practices, female genital mutilation, domestic violence and trafficking. It is also clarified that the request for recognition of refugee status based of 46 UNHCR, Guidelines on the Protection of Refugee Women, Geneva, UNHCR, Guidelines on the Protection, cit., par UNHCR, Guidelines on the Protection, cit., par UNHCR, Guidelines on the Protection, cit., par UNHCR, Guidelines on the Protection, cit., par UNHCR, 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, Geneva, UNHCR, Guidelines on International Protection: Membership of a particular social group within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, Geneva, UNHCR, Guidelines on International Protection: Gender-Related, cit., par

22 a different sexual orientation, as containing an element of gender membership, should be treated like any other instance of gender-based persecution. 54 Finally, these standards provide measures to be adopted for determining refugee status, so that the gender dimension is taken into account properly. It is recommended to interview women separately from men, and interviews should be held by women. During the interview, a climate of trust between interviewer and applicant must be established, then the questions must be adequate to detect gender specificity required to determine the status. 55 Furthermore, the Guidelines examine the concept of membership of a particular social group because, through them, UNHCR has sought to clarify the most complex reason among the five that constitute the basis for granting refugee status. Thus, the Guidelines provide the following definition: a particular social group is a group of people who share a common characteristic or are perceived as a group by society. The characteristic is often innate, immutable, or is essential to the identity of each individual belonging to this group. 56 Therefore, it seems clear that sex falls into the category of a particular social group, since women represent a plain example of a group with this distinctiveness. 57 Finally, it is important to point out how the Guidelines specify that it is not necessary that the group is cohesive; indeed, it is not essential that non-members group know each other, but, the major element is to see if there is a common feature among members of the group. 58 Through analysis of the Guidelines, one can observe the special attention that the High Commissioner for Refugees reserves for the specific features that characterize women asylum seekers. 59 The value of the Guidelines is limited to encourage Member States to adopt protocols for implementation of these recommendations; however, without forcing them. Australia, Canada, France, the United Kingdom and the United States are example of states that have recognized the status of refugee women as a result of gender persecution and they have accepted the proposals of the UNHCR to approve specific documents. The challenge for future years will be to verify the actual implementation of these Guidelines in national policies of member countries, since there are few countries still today that have adopted provisions conform to the parameters. 54 UNHCR, Guidelines on International Protection: Gender-Related, cit., par. 9, 16 e UNHCR, Guidelines on International Protection: Gender-Related, cit., par UNHCR, Guidelines on International Protection: Membership of a particular social group, cit., par UNHCR, Guidelines on International Protection: Membership of a particular social group, cit., par UNHCR, Guidelines on International Protection: Membership of a particular social group, cit., par UNHCR, The world s women Trends and statistics, New York,

23 1.6 Conclusion The previous paragraphs have explained how the right of refugees has been recognized by the 1951 Convention and successively protected by the international human rights law. In addition, it was analyzed that the Guidelines issued by UNHCR have provided benchmarks for a general interpretation of international refugee law and protection of women. Through this historical reconstruction of the main documents that have affected female refugees, it has been possible to perceive the growing interest by the international community to the problematic of refugees and the increased sensitivity to the gender issues. 23

24 CHAPTER 2: ANALISYS AND GENDER-BASED INTERPRETATION OF ARTICLE 1A (2), 1951 CONVENTION 2.1 Introduction In the previous chapter, international instruments that consider the rights of refugees in international law have been presented. In particular, regarding the discipline of the refugee status, the 1951 Convention is the most important international document because it is the only text that directly and specifically addresses the question of refugees. In this chapter, the features required for the recognition of the refugee status will ben discussed and it will be assessed if the definition has a special attention to the gender-based problems that female refugees suffer. In order to discover this, it is necessary a description of the key-elements of the refugee definition, that, as already cited, include: a well-founded fear; being persecuted; reasons of race, religion, nationality, membership of a particular social group or political opinions; being outside the country of own nationality, and being unable to or, owing to such fear, being unwilling to avail himself of the protection of that country. From the analysis of these elements will emerge that the refugee definition does not contain a specific category for refugee women, nor the fact of having been discriminated for gender-based reasons will be cited as ground to be considered refugees. However, the doctrine that has developed in recent years has claimed that the UN definition must be interpreted in such a way to understand all the issues affecting refugees. Therefore, the analysis will focus to investigate how the persecution and the five reasons are to be interpreted, according to a gender perspective, so that female refugee can be included. 2.2 Elements of the refugee definition: Fear of persecution One of the most important and critical elements in this definition refers to the person's fear of being persecuted. The concept of fear refers to the subjective state of an individual: the well-founded fear. 24