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Gender-Related Persecution and International Protection

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Gender-Related Persecution and International Protection

Only in recent years have authorities begun to see sexual and gender-related assault and violence as behavior that, in some circumstances, can and does amount to persecution. Rather, such behavior has too often been seen as ordinary or random violence perpetrated against an individual unlucky enough to have to experience it; in other words, as a personal or domestic issue that does not amount to persecution. If even viewed as a crime in the first place, crimes against women—such as rape in conflict, genital mutilation, honor killing, or domestic abuse—are frequently seen only in a private light. Rarely is violence against women, even in conflict situations, seen as a political act, as a method for one group to exert control over another, as a symbol of power or dominance, or as a direct result of the discriminatory denial of human rights. As a consequence, women who apply for asylum in these situations are often turned down—a rejection that can cost them their lives.

A refugee is a 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, or, owing to such fear, is unwilling to avail himself of the protection of that country." (1951 Convention relating to the Status of Refugees, Article 1A)

There are many facets to the issue of gender-related asylum. This article addresses the most fundamental: how some forms of gender-related violence have come to be understood as persecution, how such claims can be cast within the rubric of a "particular social group," and the role of the other "tests" in support of asylum claims, such as the lack of state protection.

This issue hinges, to a great extent, on interpretations of the 1951 Convention relating to the Status of Refugees. Most legal analysts would suggest that the goal of the Refugee Convention was to be inclusive, not exclusionary. It was written in the aftermath of World War II, as states were struggling to figure out how to prevent a refugee crisis from occurring again. By outlining various motives for persecution—such as race, religion, membership in a particular social group, and others—its drafters were seeking a means of protecting the vulnerable in society.

Today, however, the spirit in which the Refugee Convention was drafted appears in danger of being lost, as more and more states seek to limit or even outright prevent access to the very protections that its drafters sought so carefully to construct. Though this trend appears in nearly all segments of refugee and asylum policy, in none has it courted as much controversy, conflicting opinions, and contradictory case law as in the case of gender-related asylum claims.

Defining Gender-Related Persecution and Asylum

The differential treatment of gender-based violence makes it clear that the problem... lies in the international community's willingness to tolerate sexual abuse against women. (UN Special Rapporteur on Violence against Women, 1995)

There is a litany of cases in which the asylum claims of women have been denied because the harm was defined as personal, not persecutory. Olimpia Lazo-Majano, for example, was repeatedly raped, abused, and threatened with death should she try to escape by a sergeant in the Salvadoran military. Her husband, who had fled El Salvador, was a member of the paramilitary forces, a fact referenced by the sergeant during his abuse, calling both the victim and her husband "subversives." The majority opinion denying her asylum in the United States, however, stated that "such strictly personal actions do not constitute persecution within the meaning of the Act." A later comment from the court of appeals (which eventually approved her claim) went even further in denying the possibility that the behavior of the attacker could be anything but that of an ordinary rapist: "the record here shows a Salvadoran woman... who was abused and dominated by an individual purely for sexual, and clearly ego reasons." In a similar case, another Salvadoran woman was denied asylum in the U.S. by a court that, in the words of refugee legal scholar Heaven Crawley, found "the persecutor's motives for raping her were different from the political motivation behind the torture and execution of her male family members which she was forced to witness."

Both cases, and many others like them, reflect a profound reluctance on the part of many immigration and other state authorities to see violence against women in the same light as other persecutory behavior. Gender-related asylum claims are also denied because violence against women has often been seen as a societal norm in countries of origin and therefore as personal crime. As a result, it is considered far too broad a category to amount to persecution. Violence that happens to women because they are women is not seen (or legislated) in the same way as, for example, violence that happens to ethnic minorities because of minority status.

Types of harm that are specific to women, and which can amount to or play a role in persecution, abound. Some general examples include but are not limited to:

  • the denial of equal standing under the law to women;
  • the purposeful lack of state protection or refusal of state police or judicial authorities to get involved in "domestic matters" that involve abuse, rape, torture or other severe harm;
  • certain traditional practices which women are forced to undergo despite objections;
  • the denial of fundamental human rights and freedoms to women and/or the infliction of severe punishment on women for transgressing fundamentally discriminatory social norms.

Just as the 1967 Protocol to the Refugee Convention challenged the preconception that all refugees were fleeing war or communism in Europe, lawmakers, scholars, and others have in recent years begun to challenge the preconception that the only legitimate asylum claims are those that conform to the "adult male standard." There is greater acceptance of the fact that women may fear and experience different types of harm than men. More importantly, there is also increasing recognition that such harm, even when it is a societal norm, can amount to persecution—and in fact may even be part of the grounds for granting international protection.

For instance, Professor James Hathaway has noted that "a well-founded fear of persecution exists when one reasonably anticipates that remaining in the country may well result in a form of serious harm which the government cannot or will not prevent, including either specific hostile acts or an accumulation of adverse circumstances such as discrimination existing in an atmosphere of insecurity and fear" (emphasis added). The 1996 Australian "Guidelines on Gender Issues for Decision Makers" clearly state that gender "can influence or dictate the type of persecution or harm suffered and the reasons for this treatment."

Meeting the Asylum Test: Are Women a Particular Social Group?

"[S]tates, in the exercise of their sovereignty, are free to adopt the interpretation that women asylum seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they live may be considered as a 'particular social group' within the meaning of... the Convention."
(UNHCR ExCom Conclusion 39, 1985)

Membership in a "particular social group" is one of the five grounds for granting asylum contained within the refugee definition—the others are race, religion, nationality, and political opinion. It was added as a ground for claiming persecution because the drafters of the Refugee Convention were aware it would be impossible to pre-categorize every individual or group of individuals who could ever possibly be in need of international protection. However, though authorities are beginning to accept some forms of violence against women as persecution, they continue to deny claims on the basis that women do not qualify as a particular social group (the category on which most gender-related claims are based). Many advocates suggest that denying the possibility that women do, in some situations, comprise a particular social group represents a fundamental misunderstanding of the discriminatory laws and societal norms that lead to and condone the persecution of women in the first place.

The first argument that has been raised against gender-related persecution claims based on membership of a particular social group is that the category "women" is too large or broad. This argument, however, is not supported by the landmark ruling in Canada v. Ward (1993), which is widely recognized as providing the clearest definition of precisely what constitutes a particular social group. It delineates three possible categories:

1) Groups defined by an innate or unchangeable characteristic;
2) Groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association;
3) Groups associated by a former voluntary status, unalterable due to its historical permanence.

The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation... (emphasis added).

The second argument used to deny gender-related persecution claims based on membership in a particular social group is that the category "women" is not a cohesive group, and/or that its members do not voluntarily associate. For example, in Islam and Shah the counsel for the UK secretary of state argued that "Pakistani women" were not a social group because some Pakistani women were not persecuted. This reasoning, however, has been largely rejected by subsequent case law, which found it difficult to accept what such a precedent could have meant for asylum claims based on other grounds, such as religion. It would, in effect, require that all members of a particular religion be targeted in order for any one persecuted individual to be granted asylum.

The United States Department of Homeland Security also rejected such reasoning in its February 2004 brief on Matter of R.A. (the case of a Guatemalan victim of domestic violence, still making its way through the Justice Department after nearly a decade). The brief states that "there is no requirement that all those who posses a protected characteristic have a well-founded fear in order for the characteristic to qualify as a protected one." The logic is that the abuser targets his wife because she is the only one that he has the opportunity to abuse, but this does not in any way negate her fear or suffering, nor does it mean that there are not other women in the society who suffer or fear the same harm. As Professor T. Alexander Aleinikoff notes, the "Convention requires a showing that her fear of persecution is because of a characteristic that she possesses."

Lastly, gender-related asylum claims based on the social group category have been rejected on the basis that such a group would be defined solely by the (feared) harm, and thus not exist independently of the persecution.

Analysts argue, however, that such reasoning fundamentally misunderstands the uniqueness of gender-specific types of persecution, which often exists as a direct result of the discriminatory laws and cultural norms of the societies in which it occurs. In other words, when persecution is caused by discrimination, the discrimination itself can be part of what defines or creates the "particular social group" which fears or suffers persecution. This issue was also addressed by Justice McHugh of the High Court of Australia, who noted in Applicant A. v. Minister for Immigration and Ethnic Affairs (1997) that "[W]hile persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society." The fact of persecution, Aleinikoff notes, may help define the group in the sense that the maltreatment both gives those subject to it a "sense of groupness" and creates perceptions in society at large that "the group stands apart."

Meeting the Asylum Test: Does the State Fail to Protect Women?

Besides the need to prove a well-founded fear of persecution and that such persecution is "on account of" a protected ground, one of the other "tests" of the refugee definition is the availability of state protection. Such protection is lacking in most gender-related asylum claims. But what is the proper "place" of the lack of state protection in such claims? This question has often proven difficult to answer because persecution of women tends to occur within what is considered the "private" sphere—those inflicting harm are most often non-state actors (including family members). Thus questions arise as to the responsibility of the state to intervene in such situations and often causes analysts to revert to the traditional—and false—notion that harm suffered by women is always personal, and never persecution.

Often in such cases negative action on the part of the state becomes the focus of the determination, rather than a lack of state response. However, the Refugee Convention and subsequent case law regarding non-state agents of persecution make clear that the state does not have to be actively involved in the persecution itself: an absence of state protection is sufficient to support the asylum claim. For example, the U.S. Board of Immigration Appeals (BIA) notes that the Kasinga claim (a Togolese woman who feared genital mutilation) was upheld in part because the applicant was able to show that the authorities actively tracked her down after she ran away from her tribe for fear of being subjected to the practice. The issue of state complicity or willful ignorance becomes particularly relevant in cases of domestic violence, such as Matter of R.A.. The assumption is that if state authorities "go after" the abuse victim, the claim would be accepted. In Matter of R.A., the fact that both the police and judicial systems repeatedly ignored her pleas for help and refused to get involved in any way, according to the BIA, was not enough.

Further, the lack of state protection can also be an essential element in the persecution itself—namely, as the nexus between the persecution and the Refugee Convention ground of membership in a social group. The (feared) harm is accepted by the state and society because it happens to women. Persecutors, whether they are husbands, fathers, military, or other men in society, target women in part because they know their crimes will go unpunished. Thus the social group may be defined by the recognition by persecutors themselves that women are "apart" from the rest of society; less deserving of—and less likely to receive—protection than men.

In Islam and Shah (1999), Lord Hoffman used the example of a Jewish shopkeeper to explain this construction. Suppose, he asked, that in the early days of the Nazi regime Jews were not specific targets of state violence, but were systematically denied any form of protection from violence that might befall them. If the Jewish shopkeeper and his store were threatened and attacked by competitors, the threats and attack themselves—with the underlying aim of discouraging competition—would not amount to persecution. However, the attackers "would not have done what they did unless they knew the authorities would allow them to act with impunity. And the ground upon which they enjoyed impunity was that the victim was a Jew...An essential element in the persecution, the failure of the authorities to provide protection, is based upon race."

Conclusion

As stated in its preamble, the goal of the Refugee Convention is to "assure refugees the widest possible exercise of [their] fundamental rights and freedoms... without discrimination." According to many lawmakers and advocates, it follows that gender-related asylum claims must be given equal treatment with claims based on race, religion, or other protected grounds. This could mean more predictably accepting "women" as a particular social group, or putting greater focus on the alleged persecution and lack of state protection.

International jurisprudence suggests that denying protection to individuals merely because legislators cannot agree on how best to define "social group" is clearly not in keeping with the non-discriminatory and non-exclusionary intent of the Refugee Convention. As Aleinikoff wrote in 1991: "It seems peculiar for adjudicators to adopt narrow and technical readings of the specified grounds for persecution, once an applicant has demonstrated that, in fact, he or she is likely to be persecuted if returned home. It is as if the [BIA] has reconstructed the original intention of the drafters of the 1951 Convention."

Critics of a more gender-sensitive approach to asylum determination tend to downplay the severity or persecutory nature of types of harm specific to women or specific to the status of women in particular societies. Thus one finds critics challenging whether countries of asylum can provide permanent residency to women fleeing what some have called "an unfortunate domestic or social situation."

Similarly, critics often conclude that policies establishing gender-related persecution as a basis for granting protection would "open the floodgates" to asylum applications from any woman who had experienced some form of sexual assault, discrimination, or ill-treatment.

Statistics have not borne this out. Canada, for example, instituted the world's first guidelines on gender-related persecution in 1993. A decade later, and despite the fears of critics at the time, the Immigration and Refugee Board has yet to see a notable increase in the number of women seeking asylum on grounds of gender-related persecution. Karen Musalo of the University of California-Hastings Center for Gender and Refugee Studies estimates that there are fewer than 500 such cases currently pending in the United States.

Why has there not been a dramatic increase in the numbers? As noted above, not every woman who has been abused, raped, or otherwise subjected to gender-specific mistreatment or violence would be automatically granted asylum should a more coherent policy regarding gender-related persecution be codified in law. Few would argue that it is the responsibility of—nor would it be feasible for—a state to protect each and every citizen, male or female, from every possible type of harm. Under international law, however, it is the responsibility of a state to protect its citizens from persecution. When a state cannot or will not do so, this responsibility then falls upon the international community in the form of protection through asylum.

The issue therefore is not one of "opening the floodgates." It is rather the need to correct an anomaly in the international refugee protection system that has excluded women from receiving the protection many of them need and deserve.

Sources consulted and selected further readings

General:

Aleinikoff, T. Alexander. "The meaning of 'persecution' in United States asylum law." In International Journal of Refugee Law Vol. 3, No. 1, 1991. pp. 5-29.

Crawley, Heaven. Women as Asylum-Seekers: A Legal Handbook. London: Refugee Action, 1997.

Feller et al, eds., Refugee Protection in International Law: UNHCR's Global Consultations on International Protection. Cambridge: Cambridge UP, 2003. See especially chapters by Aleinikoff, Edwards and Haines.

Hathaway, James. The Law of Refugee Status. Charlottesville, VA: Lexis Law Publishers, 1991.

International Journal of Refugee Law, Special Issue: UNHCR Symposium on Gender-Based Persecution (22-23 February 1996), Autumn 1997.

Government Guidelines and UN Documents on Gender and Asylum:

Department of Immigration and Multicultural Affairs of Australia, "Guidelines on Gender Issues for Decision Makers," July 1996.

Immigration and Refugee Board of Canada, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, Guideline 4: "Refugee Women Claimants Fearing Gender-Related Persecution: Update," 25 November 1996.

United Nations Special Rapporteur on Violence against Women: Its Causes and Consequences, Preliminary Report. UN Doc E/CN.4/1995/42.

Referenced case law:

Applicant A. and Another v. Minister for Immigration and Ethnic Affairs and Another, High Court of Australia, 1997. 190 CLR 225; 142 ALR 331.

Canada (Attorney General) v. Ward, [1993] 2 S.C.R., File No.: 21937, March 25, 1993. See especially p. 739.

Campos-Guardado v. Immigration and Naturalization Service, United States Court of Appeals 5th Circuit, 809 F.2d 285, File No.: 86-4087, February 10, 1987.

Islam v. Secretary of State for the Home Department and R. v. Immigration Appeal Tribunal and Secretary of State for the Home Department, ex parte Shah (Islam and Shah), UK House of Lords, [1999] 2 WLR 1015, [1999] INLR 144.

Lazo-Majano v. INS, United States Court of Appeals, 5th Circuit. 813 F.2d 1432, File No.: 85-7384, April 2, 1987.

Matter of R.A., BIA Interim Decision No. 3403, June 11, 1999.

Whitley, Joe D., Department of Homeland Security General Counsel et al., "U.S. Department of Homeland Security's Position on Respondent's Eligibility for Relief (in re: Rodi Alvarado Peña, respondent)." File No.: A 73 753 922, San Francisco. February 19, 2004.