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ISIL Year Book of International Humanitarian and Refugee Law |
| You are here: | WorldLII >> Databases >> International >> Journals >> ISILYBIHRL >> 2001 >> [2001] ISILYBIHRL 9 |
SUSHIL RAJ[*]
Today’s international community is but a handicapped witness to refugee movements and internal displacements that are a result of past, continuing, and emerging conflicts. These conflicts, based on conceptions of race, ethnicity, religion, gender, and class structure are often nothing more than artificial constructs fueled by power hungry leadership, which then feeds them to the masses. Refugee movements are not simply a problem of advancing social justice through the promotion of human rights, but one of recognising deeply rooted structural inequalities and contextualising them within strategies of reform. The human rights of refugees require advocacy from this perspective.
As conflicts undergo contextual and thematic change, so do the nature of refugee movements, thus illustrating the importance of relativity and situational specificity and the fact that there is no text book solution to human rights violations and population displacements. The UN High Commissioner for Refugees (UNHCR) not only recognizes refugee movements as a variable that needs constant, adaptive responses, but has also streamlined and geared its policies towards prevention, often times coming up with innovative and constantly adaptive responses to the influxes that take place. In dealing with the changing nature of complex emergencies, however, UNHCR being the lead agency, has not adequately addressed structural factors that are responsible for these displacements. For example, grounds of displacement may be deeply tied to economic factors, where severe macroeconomic inequities may result in political/ civil instability and a consequent breakdown of state machinery, Somalia being a case in point.[1] Often enough the core issue of redefining refugee law, which is a glaring product of structural inequities and realpolitik, is skirted.[2] Thus hindered by an outdated Refugee Convention, UNHCR can only enhance its response capacity in limited ways.
The international community does recognise the gap that exists between the theory of international human rights and the practice of implementing and enforcing such standards. Scholars cite a number of reasons for the existence of this gap. They range from ineffective implementation and enforcement procedures to resistance by national governments and officials, often times abusing the principle of state sovereignty and branding any form of humanitarian intervention as a violation of their sovereignty. Other reasons may allude to social, economic, political and cultural processes within nation-states that resist the effective enforcement of such rights. Although agencies, such as UNHCR, though making commendable efforts in light of an inadequate international refugee regime, are limited by this gap both due to the failure of states to measure up to their responsibility and a deficient legal framework.
This paper takes the gap between theory and practice of human rights as a starting point to advocate the need for reconceptualising the theory of international refugee law. It chooses to focus on the deficiency within theory, more specifically within the instruments that constitute the international legal framework that governs refugees and how this impacts the protection of women. It contends that a deficient international legal framework results in a protection gap at two levels. The first aspect is that of legal protection and the second is that of physical security, which is also closely linked to the aspect of food distribution, access to health care and general protection within the camp management system. Although UNHCR Guidelines on the Protection of Refugee Women attempts to correct this protection gap through better assessment and gender specific programming initiatives, they cannot fully address the issue of legal protection which is primarily subject to state adjudication and scrutiny when it falls outside UNHCR’s protection parameters. Through the course of this argument, it must be kept in mind that state interests rarely overlap with those of UNHCR’s, and under many circumstances are diametrically opposed to those of UNHCR’s. This leads to a differing perspective on protection and treatment of asylum claims.
The first part of the paper attempts to illustrate this theoretical deficiency by addressing the status of women within the existing legal framework for refugees and illustrates the point through two case studies. The second part then attempts to show how the current legal framework results in biased policies thus affecting programming initiatives unfairly. This is done through the use of United Nations Relief and Works Agency’s (UNRWA) treatment of Palestinian refugees as a case study. In doing so I argue that without a reconceptualisation of the refugee definition, only certain aspects of protection and levels of programming can be addressed, i.e. gender sensitive programming may improve women’s security in terms of physical protection and access to life sustaining resources, however, it will not afford them the recognition of their rights in totality and adequate legal recognition as long as the 1951 Convention remains unchanged. The gender-sensitive approach will not have legal sanction and the core problem of defining a refugee in the present day context will remain unresolved. Hence, a reconceptualisation of the term ‘refugee’ will impact both legal and physical protection while creating greater accountability for states that deny women refugees legal protection.
The third part of the paper further situates this problem within the larger debate of reconceiving refugee law – the divide between the North and the South.[3] In doing so, I attempt to assert that the gender discourse is directly relevant to the broader debate of global inequality, since refugee law is a product of this global inequity. This leads us to the understanding that refugee law needs to be reconceived in totality, and a simple inclusion of gender as an element will not be sufficient without changing other aspects of the definition that address present day refugee movements. It also needs to find ways to reconcile them with the security needs of states. The paper urges the international community to necessitate a revision process and establish a dialogue, as Abdullahi An-Naim would say, within and across cultures to move refugee rights and humanitarian theory forward.[4]
Refugee relief and rehabilitation agencies acknowledge the fact that the impact of refugee movements affects women fleeing persecution differently and therefore necessitates the need for a gender specific approach to emergency programming and community rehabilitation. The primary area of concern for women refugees is protection, which falls into three broad categories. The first is at the level of refugee status determination and the insufficiency afforded to women by the current refugee definition under international law. The second issue is that of physical insecurity surrounding women refugees not enjoying permanent settlement and the third is at the level of programming, where the basic insensitivity of officials during operations inhibits fair distribution of food distribution, access to healthcare, education, and employment.[5] Of the three, the easiest to rectify, appears to be the third and some aspects of the second category of protection, which is the main thrust of UNHCR Guidelines.[6] The issues of legal protection and durable physical protection, which directly ties in with the former, are not easily resolved or tackled. These are deeply routed in legal discourse; functioning and response capacity of the state/administrative machinery; and actions of private actors that are either dismissed or implicitly accepted by various states.
Despite the recognition and attempts made by UNHCR in this regard, there continues to be a neglect of any such formalised approach and acceptance of existing discriminatory policies by the international community of states in dealing with women refugees. The foremost deficiency lies within the definition of ‘Refugee’ itself as laid out by the 1951 Convention Relating to the Status of Refugees (1951 Convention) and its 1967 Protocol. The 1951 Convention as confirmed by the 1967 Protocol, defines a refugee as a person who,
“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.”[7]
Although persecution is not defined by the Refugee Convention, the grounds of such persecution are listed as race, religion, nationality, membership of a particular social group or political opinion. This definition of what constitutes a ‘refugee’ has been highly debated given its perception of being a cold war instrument, narrowly defined to contain future refugee flows within the South and its failure to address and recognise present day refugee movements that may be a result of economic disasters, break down of state machinery, and persecution on account of gender. In the words of Goodwin-Gill, the Convention is,
“...founded upon a laudable, if highly individualistic conception of persecution, premised upon admission and integration, the Convention’s capacity for narrow or restrictive interpretation in the highly structured environments of case by case adjudication leaves thousands ‘outside’ or ‘beyond’ protection. They become objects of ad hoc, discretionary and extra-legal policies that finally benefit no one. Individuals are commonly denied even basic rights, or any opportunity to contribute to their own solution. Administrations in turn, appear incompetent to combine humanitarian policy with effective management of their borders.”[8]
The 1951 Convention in its narrowly defined approach, covers civil and political rights, and ignores economic, social and cultural rights. This goes against the founding tenets of human rights, which perceive human rights as interdependent and indivisible. The 1951 Convention was followed by the Organisation for African Unity Convention Governing the Specific Aspects of Refugees Problems in Africa (OAU), a regional instrument, which exerted an expansionary effect on this definition of refugee in the areas of non-refoulement and the voluntariness of repatriation, burden-sharing, and temporary asylum. The OAU Convention, however, also presented problems by not addressing the rights of women refugees, particularly those fleeing persecution on account of their gender.[9]
Although women refugees do flee persecution on grounds of persecution of civil and political rights, there are times where the root causes of their flight are flagrantly rooted in violations of their economic and social rights (often times within the vicinity of homes or closed communities) that may actually undermine their right to life. They are victims of repeated sexual abuse, rape and torture committed by private and public actors alike that may have social sanction in certain situations (female genital mutilation being an example of social acceptance in many countries), who may also be subjected to such torture by state agencies on account of their gender. If a woman chooses to transgress such a social norm, she may be subjected to life threatening persecution. Further, women may flee a country when they are kept from engaging in basic life-sustaining economic activities primarily on account of their gender and not only on account of their race, religion, nationality, political opinion or membership of a particular social group.[10]
Non-recognition of gender as grounds for persecution then specifically leads to an interpretive problem and consequent denial of refugee status or asylum, particularly in terms of third country resettlement, to those genuinely deserving such status. States may easily dismiss people, especially women whose economic, cultural and social rights are violated as “economic migrants” in the absence of a well-founded fear of persecution under the five prevailing categories. Oloka-Onyango attempts to reformulate the approach to refugee status determination by critically stating the following:
“paradoxically, if we take the elements in the UNHCR’s definition of an economic migrant, namely that their departure must be “voluntary” and for ‘exclusively economic considerations’ as a reference point, then it is clear that a person who flees a country on account of the deprivation of her economic, social and cultural rights is not an economic migrant. Such a person who has been “made to suffer” in this way is logically entitled to protection.”[11]
Clearly then a deficiency exists within the existing international legal framework concerning the status of refugees, since it fails to address these issues.
It is paradoxical that at one level of analysis, under a general human rights framework international law is expansionary and women’s rights are increasingly being addressed and yet at another level, under a refugee-specific framework, women’s rights are either not addressed or subsumed under broader categories of persecution. Documents such as the UN Charter and the Universal Declaration on Human Rights (UDHR) may not explicitly address violence against women, nevertheless they do demand a change in existing patterns of discrimination, gender roles, and inequality constructed on the idea of sexual inferiority. Violence against women when seen under the light of these instruments can clearly be interpreted as a tenet of the Convention.
Specific instruments such as the Convention on the Elimination of Discrimination Against Women (CEDAW) call for equality between sexes by imposing obligations on states to modify or abolish discriminatory laws in areas of politics, education, work environment, marriage and legal representation. The protection capabilities of CEDAW, however, are curtailed due to heavy reservations by governments, particularly states using the Sharia as their legal code of governance. Further development on women specific legislation in international humanitarian law can be seen in the Statute of the Criminal Tribunal on Yugoslavia, where rape has been incorporated as a crime against humanity, recognising that women are the primary victims of this crime, however the exact assertion of it being a crime against gender still needs to be established.[12] On a general level, women’s human rights are being enhanced through investigation, documentation and advocacy such as the Special Rapporteur’s report on violence against women. 13 The report lays out a legal framework under which sexual slavery and slavery-like practices can be prosecuted as customary violations of jus cogens, in addition to being prosecuted under ‘torture and inhumane acts’. A number of rights are also provided for under other international instruments such as the Convention Against Torture (CAT), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social, and Cultural Rights (ICESR) and General Assembly recommendations and declarations.
The above instruments clearly advocate the need for recognising and protecting the human rights of women within peaceful society, armed conflicts, or any situation of displacement. Yet the legal framework governing refugees fails to grant asylum or refugee status to women who are specifically fleeing such systemic violations by either public or private actors and where the state is either overtly involved or complicitous in such acts.
This restrictive legal framework is readily evidenced in case law and the state asylum adjudication process. One such case involved the rejection of the asylum claim of Sofia Campos-Guardado, a native of El Salvador who entered the United States illegally, by the U.S. Board of Immigration Appeals, which used a highly restrictive definition of persecution under political grounds and disregarded the ‘particular social group’ interpretation.[14] Sofia Campos, while visiting her uncle, was dragged to the edge of the farm’s waste pit along with her uncle, a male cousin and three female cousins. The attackers skinned the bodies of the men and shot them, while the women watched. They proceeded to rape the women, including Sofia Campos, while the female attacker “shouted political slogans”.[15] She was hospitalized for fifteen days following which she moved to work in San Salvador and decided not to return to her parents for fear of being confronted by the same people there. When she did finally visit home her mother introduced her to one of her cousins, whom Sofia Campos recognized as being one of the rapist. This cousin threatened her with death if she revealed his identity to anyone. Sofia Campos illegally fled to the United States after guerillas burnt down the factory she worked at in San Salvador.[16]
Sofia Campos originally argued that she had been persecuted in San Salvador on her “political opinion” and “membership in a particular social group” knowing well that no other interpretation would be considered by the Board of Immigration Appeals.[17] The Board of Immigration Appeals acknowledged her suffering but stated that Sofia Campos had “not shown that the attackers harmed her in order to overcome any of her own political opinions”.[18] The Board concluded that “the attackers may have been involved by their own political goals... the record does not establish that [Ms. Campos] was persecuted on account of any political opinion she possessed or was believed by the attackers to possess.”[19] Sofia Campos appealed the Board’s decision by contending that the Board failed to consider all relevant evidence. She argued that being in her uncle’s home automatically led to attributing her uncle’s views on her by the aggressors. She believed it was “...unreasonable for the Board to assume that the persecutors’ reasons for victimising her were different from their political motivation behind torture, execution and rape of her family members”.[20] She also argued that as an eyewitness to these assassinations, she would be permanently targeted for persecution.[21]
The case of Sofia Campos goes to show the highly restrictive application of the refugee definition where she was not granted asylum even on grounds of political persecution. The Board of Immigration would not have considered her case had it been appealed on account of her gender. Had this been the case of refugee status determination under UNHCR, it is likely that she would have been accepted on grounds of political persecution, and in the present day determination process, on account of her membership of a particular social group. UNHCR, however, does not always have the ability to assess claims, which leaves states open to extremely abusive and restrictive interpretations without being held accountable. UNHCR Guidelines on Women note that “States, in the exercise of their sovereignty, are free to adopt the interpretation that women asylum-seekers who, for example, face particularly severe gender-based discrimination may be considered as a ‘particular social group’ within the meaning of the 1951 Convention’s refugee definition”.[22] The above referenced case illustrates precisely why this guideline presents a serious problem for women facing persecution.
Another important case that highlights the problem with the ‘social group’ theory, is the case of Gomez vs. INS, where the Second Circuit relied on an earlier decision Sanchez-Trujillo to deny the Salvadorian woman refugee status. In the Sanchez-Trujillo case, the court stated:
The phrase “particular social group” implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest. Of central concern is the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group.[23]
In the case of Gomez, the Second Circuit relied on this definition to deny her refugee status, even though she sought asylum on the contention that she was repeatedly raped and battered throughout her youth by Salvadorian guerrillas. Gomez claimed that such attacks led her to be identified as a member of a particular social group, which consequently led to her persecution. The Court, however, stated that she failed to produce evidence of women previously abused by guerrillas sharing the same characteristics of gender and youth, which would lead the guerrillas to identify them as part of a particular group. Furthermore, the Court believed that there was no evidence that she would be persecuted on account of these grounds in the future.
The interpretation of the ‘particular social group theory’ as illustrated in the above-mentioned cases illustrates the need for reconceiving and broadening the refugee definition to include gender. This method of interpreting the definition under the 1951 Convention to process asylum claims is plagued with problems since the term ‘social group’ has not been defined. Some believe that it is intended to have specific application, while others believe that it is an all-inclusive category. Although the ambiguity in the social group category of UNHCR’s Handbook[24] was retained to protect any group singled out by a foreign government for victimisation, it can be narrowly interpreted, thus excluding certain asylum claims. This inconsistent usage of the social group theory often times, leads to ad hoc policies and decisions, thus preventing an institutionalized or systematic response to asylum cases. Of course, it is essential for every case to be assessed on its own individual merit; however, individual assessment through ad hocism can easily lead to abuse.
Due credit must be given to the fact that there is a trend towards granting asylum for victims fleeing gender related persecution by assessing their ‘well founded fear of persecution’ under the category of ‘membership of a particular social group. UNHCR, in its Guidelines on the Protection of Refugee Women, asserts that states and agencies should,
“Promote acceptance in the asylum adjudication process of the principle that women fearing persecution or severe discrimination on the basis of their gender should be considered as member of a social group for the purposes of determining refugee status. Others may be seen as having made a religious or political statement transgressing the social norms of their society. Promote recognition that there may be a basis for granting refugee status where a government cannot or will not protect women who are subject to abuse for transgressing social standards. The government need not itself have been the instigator of the abuse.”[25]
Although these guidelines do not clearly implicate the full array of economic, social, cultural, civil and political rights set forth in the Women’s Convention, the Economic Covenant, the Civil and Political Covenant, and regional conventions, they do address abuses suffered by refugee women. The main thrust, however, remains a needs-based approach on assessment of needs and consequent provision of services. Paras 54, 59 and 62 of the Guidelines do deal with the inequities behind granting refugee status and the protection concerns of women, but in an open-ended and non-conclusive manner. Para 54 simply encourages states to consider women persecuted on account of transgressing social mores as part of a “social group” but “it is left to the discretion of countries to follow this recommendation”. These guidelines recognise the difficulties associated with women claiming refugee status. Inequities are often times characterised by the male receiving refugee status, while spouses and children that follow the male at a subsequent date often do not receive such a status automatically. The Guidelines also recognise that family reunification is not a right conferred by the 1951 Convention and should it break up, the wife may be without protection and face forcible return despite her own claim. Despite this recognition and assessment, the Guidelines do not recommend a reconception of the refugee definition and relegate their focus to increasing protection through needs-assessment.
The adoption of UNHCR Guidelines on Refugee Women are a clear recognition of the deficiencies that existed in developing programming areas of protection, food distribution, access to healthcare, education and employment. The guidelines serve as an initial step in operationalising theory; however, if theory does not adequately address the issue of women refugees, as seen within the existing legal framework, then programming activities will be hindered and such guidelines alone will not be able to alleviate existent problems. Para 12 of the Guidelines states that women’s participation itself will promote their protection concerns. Agreed that this a necessary step, however, without a legal framework that defines minimum standards for the protection of victims of gender-based persecution, women’s participation will not solve all protection problems. They may receive better access to food, health care and some level of security; however, it will not necessarily guarantee them a durable solution such as recognition and integration into a first or third country of asylum.
Christie Cervanek’s analysis of UNRWA serve as an important study of discrimination against women when it comes to determining refugee status and its impact on programming.[26] The basis of the discrimination lies in UNRWA’s working guidelines for establishing refugee status. UNRWA rules state that Palestine refugee status is passed on from generation to generation through the father and not the mother. If a Palestine refugee woman marries a non-refugee man, she would maintain her refugee status, however, the status is not transmitted to her children or husband, unlike Palestine refugee men, where their non-refugee wives will automatically be accorded refugee status. Further, such women and their children are not eligible for UNRWA assistance without being divorced or widowed.
This gender-based discrimination has many implications for these women and their children. Since UNRWA status may determine the eligibility for residence in a country and affect the right to return and compensation, these women and their children may be denied either of the two rights. Such discrimination also affects women in health-care, education and welfare. A registered Palestinian woman, for example, would be ineligible to receive healthcare services after marriage to a non-refugee man. This greatly affects women in the Occupied Territories, which are subject to very high health care costs. As a result of this UNRWA policy, many refugee women and their children are completely cut off from health benefits.[27] Such women and their children are not eligible for UNRWA services even under severe economic hardship. Often times the responsibility of heading a single household may fall on a Palestine woman refugee when her non- refugee husband is arrested, ill or unemployed, however, she is not entitled to any assistance despite her own status as a refugee. UNRWA’s case makes it clear that a discriminatory interpretation of what constitutes a refugee clearly impacts programming in all areas, where women refugees are not simply overlooked but intentionally excluded from receiving benefits.
It is recognised that women constantly face a threat in the area of physical security, especially while crossing borders and arriving in camps without male escorts. “Rape, abduction, sexual harassment, prostitution, physical violence and the obligation to grant ‘sexual favours’ in return for documentation and/or relief goods” are all listed realities unreflected in many programming initiatives.[28] Such abuses do not stop upon flight or temporary resettlement in neigbouring countries. In South East Asia, Vietnamese, Cambodian, and Laotion refugee women, while escaping on boats have been intercepted, raped and tortured by pirates, often being gang-raped and held apart under inhumane conditions.[29] Cases such as Bosnia and Rwanda are strong witnesses to the atrocities committed against women not simply on account of their ethnicity but also their gender. In the case of Bosnia, the total numbers of rape victims over a two-year period were around twenty thousand.[30] These figures indicate the great degree of physical threat and insecurity women face. Existent refugee camps have witnessed rapes and sexual violence due to oversight of women’s needs during the planning stage. Such abuse can take place in areas where basic services are located away from camp or safe areas making refugee women vulnerable to attack when they avail of these services. For example the task of collecting and gathering firewood falls primarily upon the refugee woman and in many cases women have to leave camp to collect such resources, thus making them vulnerable to attacks by rebels, bandits, or soldiers. Prolonged stay in overcrowded refugee camps can lead to a breakdown of law and order, increasing frustration amongst the people and the tendency to resort to violence, where women bear the brunt.[31] Women refugees may be deprived of proper documentation by their husbands who leave them, thus making it difficult for them to prove legality of residence in the country of asylum.
These issues point to the need for appropriate identification mechanisms, refugee status determination and providing registration documents to all refugee women, whether they are cases of individual determination or mass-influxes.[32] Refugee women cannot be without documentation, which is often the case when they are declared dependants. As discussed earlier, in some places recognition of women and children joining a person granted refugee status is not automatic. In many countries women receive UNHCR refugee status indirectly through their husbands and should the family break up, the woman may find herself without protection, which may further result in difficulties for a woman to prove her legality in the country of temporary residence. This goes to show the absence of legal status in her own right.
Even if agencies initiate ‘women specific’ programming, they may nevertheless fall pray to an improper understanding of gender. If gender is construed as a biological difference, aspects that effect women, such as their role within families, their ability to negotiate with people holding power within the community and the perception of women within such communities if they avail of ‘women specific’ programmes are all ignored. As a result, such programmes may actually undermine women’s freedom and position in their community.
Women-refugee related programming then shows that it is constrained by two aspects. First it is constrained by the discrimination that stems from the international legal framework governing the status of refugees and second it is constrained by an inappropriate understanding of gender and its various intersections within different social and cultural contexts. Since most non-governmental programmes continue to function on a needs-based rather than rights based approach, their impact on furthering women’s rights within such situations may be limited. The UNRWA case mentioned in this paper illustrates the lack of such a perspective. Further, programming can also be made more effective if it attempts to push rights forward through a cultural framework.Abdullahi An-Naim states that “criticisms corresponding to standards internal to a culture are more likely to be effective than criticisms corresponding to external ones... a sufficient degree of cultural consensus regarding the goals and methods of cooperation in the protection and promotion of human rights can be achieved through internal cultural discourse and a cross-cultural dialogue.”[33]
It is important to note that reconceptualising refugee law by the inclusion of a gender-related clause, should fall within the broader debate of reconceptualising refugee law in general, which is unable to satisfactorily address present day refugee problems. The primary reason for this being the inherently discriminatory system of refugee protection, which presents a double disadvantage for those seeking to ensure and broaden the protection of refugee women. The policies of many countries, particularly the developed ones have become highly restrictive in a number of ways. Firstly there is systematic obstruction by governments through their ‘non-entrée’ regimes characterised by visa restrictions, carrier sanctions, extra-territorial processing of claims, re-admission agreements with states of origin and application of principles of “safe third country” and “safe country of origin”. Secondly there is a shifting of responsibility and ‘burden’ from the North to the South. Current practices of encouraging safe havens such as those in Rwanda and Bosnia, and increased emphasis on ‘voluntary repatriation’, are all methods of containing movements within the South under the banner of ‘durable solutions’. Voluntary repatriation is undergoing a conceptual change, where the deciding factor for repatriation in current day refugee discourse is not the totality of refugee rights in and of themselves, but whether one form of action is better than another. Safeguards have been relaxed often times leading to unsafe return (e.g. the return of Rohingya Muslims to Burma from Bangladesh). Developed countries emphasis on addressing in-country protection and reintegration discourages the right to seek asylum and people are compelled to remain in territories where their life and liberty are completely threatened. Such political pressure often enough brings about a conflict of interests for UNHCR.
Western states, as witnessed over the last five decades, have undermined the obligations set forth under the present Refugee Convention, which has led to so much controversy behind the definition itself. The definition excludes those fleeing non-state agents – women refugees – and victims of generalised violence within states where the machinery has broken down. It is argued that refugee law is not designed to address structural inequities, however, refugee movements and international policy responses are deeply entrenched in these inequities. The treatment of asylum seekers such as US interdiction of Haitian refugees at sea, while countries such as India and Pakistan play host to a sizeable number of refugees despite being non-signatories to the 1951 Convention are ready examples of this unequal global treatment.
Leading scholars such as Hathaway argue for reinvigorating refugee law through a theory of ‘solution-oriented’ temporary protection and burden sharing through ‘common but differentiated’ responsibility.[34] They believe that the institution of international protection must be retooled, but do not address the problems associated with the current definition of what constitutes a refugee. Moreover, as Bill Frelick, reflects on these scholars’ work, how can one convince governments of temporary protection in practical terms?[35] The norm in refugee protection has generally been one of permanent recognition. The issue of temporary protection will continue to evoke security concerns for countries of the South and complicate the immigration politics of countries in the North. Furthermore, what would be the time frame of this temporary protection period? Would fixing the time period not entail a host of problems with states determining the right time to repatriate refugees and even emphasize mandated repatriation? This method of reinvigorating refugee policy and the institutions that govern it will not necessarily lead to a less restrictive definition of ‘refugee’. It does not solve the problem of making refugee law more relevant to refugee movements within poorer nations, including the asylum claims of women.
What may actually be a more solution-oriented approach is the initiative taken within the South Asian context to frame and adopt a domestic legislation that is far more pertinent and fair in light of current displacements within South and Central Asia. It may serve as a model for the international refugee regime.[36] Under the model domestic legislation, the refugee definition has been expanded to include ‘sex’ and ‘ethnic identity’ as grounds for persecution in addition to incorporating the expanded OAU definition. Article 3(a) and 3(b) of the Model National Law on Refugees define a refugee as:
Any person who is outside his or her country of origin, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion, or, any person who owing to external aggression, occupation, foreign domination, serious violation of human rights or other events seriously disrupting public order in either part or whole of his or her country of origin, is compelled to leave his or her place of habitual residence in order to seek refuge in another place outside his or her country of origin.
Moreover if such a national legislation were adopted by South Asian states without acceptance of the 1951 Convention, it would be a rare example of national legislation superseding international obligations.
There is a clear need for incorporating gender as a ground of persecution in determining refugee status since the existent refugee definition is a means of protecting civil and political rights, and does not provide for all rights in their totality. The fact that women are subjected to persecution primarily on account of their gender is often times dismissed in state adjudication practice and the existing definition of refugee noticeably discriminates against such claims. Further, the recognition of women as a particular ‘social group’ fearing persecution is plagued by a number of problems, since the definition of what constitutes a ‘social group’ is open to debate and will only continue the policy of ad hoc recognition, based on the political and strategic convenience of the states involved.
Reconceiving the definition within the context of present refugee movements, and broadening it to include persecution on account of gender or generalised violence is the only way refugee law can be made more relevant and responsive to the needs of present day movements. It is the only way international refugee law may be more acceptable to states of the global South, and lead to more effective national legislations within their borders. If borders remain closed for refugees and international politics makes no accommodation for them, then the recourse we must take is a legal one to enhance protection standards.
Law is a powerful tool for social change. Developing guidelines and gender-sensitive programs, while keeping change within refugee law at bay, will only provide a face-lift to the regime, without treating the illness that manifests within. The rights of many will continue to be undermined and addressed in a non-systemic, ad hoc manner suitable to the interests of states. Reconceptualising the definition of what constitutes a ‘refugee’ will give legal sanction to policy initiatives that provide for much greater and methodical forms of state accountability. Our goal should then be to lobby for a complete reconstruction of the definition and not merely safe-keep an outdated, prejudiced and handicapped protection regime.
[*] Grants Administrator - Human Rights and International Cooperation at the Ford Foundation. The views expressed in this article are those of the author and do not necessarily reflect those of the Ford Foundation. References to the North-South scholars project are made on the basis of a workshop organised by UNHCR in May 1998, while the author was an intern with UNHCR.
[1] Macroeconomic crisis over the decades and political violence rose to a point where public institutions collapsed. These economic woes fueled the political crisis that led to the fall of the Siad Barre government and total collapse of the Somali State. Jamil A. Mubarak, From Bad Policy To Chaos In Somalia: How an Economy Fell Apart, p.155.
[2] Refugee law by virtue of its linkage to structural factors that are responsible for refugee movements, needs to address the structural issue.
[3] Differing perspectives were addressed by The North South Scholars project under the sponsorhip of the Centre for Refugee Studies, York University, which is committed towards defining the conceptual framework behind a reconceived system of international protection. Scholars from the South argue that the 1951 Convention has been dismantled by the developed nations, hence the need for remodelling refugee law. Scholars of the North believe that the refugee regime must be remodeled from within the existing system.
[4] Abdullahi An-Naim, “Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman or Degrading Treatment of Punishment”, in Human Rights in Cross-Cultural Perspective: A Quest for Consensus (1992), pp. 19-43, p. 20.
[5] Ninette Kelley, “Report on the International Consultation on Refugee Women” Geneva, 15-19 November 1988, with particular reference to protection problems”, International Journal of Refugee Law, vol.1(1989), p.237.
[6] The main emphasis is on needs assessment and the problem with the definition of refugee is dealt with in a brief few paragraphs. The issue is recognized but left open ended where it is left to the discretion of states to follow these recommendations. Note on Refugee Women and International Protection, U.N. Doc. EC/SCP/67, 1991.
[7] Art 1 (A)(2), 1951 Convention Relating to the Status of Refugees.
[8] Guy Goodwin-Gill, “Asylum: The Law and Politics of Change”, International Journal of Refugee Law vol.7 (1995), p.8.
[9] Oloka-Onyango, “The Plight of the Larger Half: Human Rights, Gender Violence and the Legal Status of Refugee and Internally Displaced Women in Africa”, Denver Journal of International Law and Policy, vol.24 (1996), p.375.
[10] It is a well-known fact that women in Afghanistan are persecuted on grounds of their gender and are not allowed to work for their livelihood. This is a particular problem for women who lack male support or are without an adult male-member in the household.
[11] Oloka, note 9, p. 365. She quotes UNHCR Handbook , note 9, para. 64.
[12] Art 5(g) of the International Tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.
[13] Integration of the Human Rights of Women and the Gender Perspective. Report of the Special Rapporteur on Violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, in accordance with Commission on Human Rights resolution 1997/44. U.N. Doc. E/CN.4/1999/68 Add. 2.
[14] Campos-Guardado vs. Immigration & Naturalization Service, 809 F.2nd 285, 287 (5th Cir. 1987), certificate denied, 484 U.S. 826 (1987).
[15] Ibid. 287**3
[16] Ibid at 288**4
[17] Ibid at 288
[18] Ibid at 288 **7
[19] Ibid
[20] Ibid at 288-89.
[21] Ibid
[22] Para 17, Note on Refugee Women and International Protection , U.N. Doc. EC/SCP/59, 1990
[23] Quoted in Linda Cipriani, “Gender and Persecution: Protecting Women Under International Refugee Law”, Georgetown Immigration Law Journal, vol.7 (1993),p.537.
[24] Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (1979).
[25] Para 71, Information Note on UNHCR’s Guidelines on the Protection of Refugee Women, U.N. Doc. EC/SCP/67, 1991.
[26] Christine M. Cervenak, “Promoting Inequality: Gender-Base Discrimination in UNRWA’s Approach to Palestine Refugee Status”, Human Rights Quarterly, vol.16 (1994),pp.301-302.
[27] Ibid, p. 322.
[28] Para 19, note 22.
[29] Sima Wali, “Human Rights for Refugee and Displaced Women” in Julie Peters and Andrea Wolper, eds. Women Rights/Human Rights, International Feminist Perspectives(1995),p. 336.
[30] M. Cherif Bassiouni and Marcia McCormick, “Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia” International Human Rights Law Institute. Occasional Paper No. 1(1996),p.33 Oloka, note 9, at 10.
[31] Para 26., note 22.
[32] Ibid, Para 27.
[33] Abdullahi , note 4, p.20.
[34] James Hathaway, “Can International Refugee Law be Made Relevant Again?”, Reconceiving International Refugee Law, (1997) p.xxiii
[35] Bill Frelick, “After forward: Assessing the Prospects for Reform of International Refugee Law” in James Hathaway, ibid., p. 148.
[36] Model National Law drafted under the Eminent Persons Group and adopted on the 5th Regional Consultative Meeting of Experts on Refugee and Migratory Movements in South Asia sponsored by UNHCR, New Delhi. In India, it has formally been presented to the Law Ministry and is pending further decision.
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