By Josie Young

The Refugee Convention (hereafter referred to as “the Convention”) defines persecution as any act which causes ‘serious harm’ to the individual, involves ‘systematic and discriminatory conduct’ and the ‘essential and significant reason(s), for the persecution’ is the individual’s ‘race, religion, nationality, membership of a particular social group or political opinion.’[1] The Australian Migration Act provides a non-exhaustive list of instances that would constitute serious harm, including: a threat to the individual’s life or liberty; significant physical harassment and/or ill-treatment of the individual; significant economic hardship that threatens the individual’s capacity to subsist; and the denial of capacity to earn a livelihood of any kind, where the denial threatens the individual’s capacity to subsist. Although this list is, non-exhaustive, and sexual and gender related assault and violence could be defined as “significant physical harassment and/or ill-treatment,” these are not acts which are specifically mentioned by either the Convention or the Australian Migration Act.[2] The requirement for “serious harm” to be inflicted in a manner which is “systematic and discriminatory” indicates that in order for any act of sexual and gender related assault or violence to be recognised as persecution under the Convention, the intention behind the act itself must be analysed and be due to the individual’s “race, religion, nationality, membership of a PSG or political opinion.”[3] This essay will explore the approaches Australia, the United Kingdom (UK) and the United States (USA) has taken to addressing the issue of gender based discrimination and refugee status, and how these approaches reconcile with the Convention, our international obligations and the limitations of these approaches.

Sexual and gender related assault, can include, but is not limited to, domestic/family violence, sexual violence and rape, forced marriage, honour killings and female genital mutilation (FGM). Although harm of this type, is by and large experienced by women, individual victims are not automatically afforded protection under the Convention, as “gender” is not and enumerated Convention ground.[4] As such, in order for a woman to be granted refugee protection based on sexual or gender related violence/assault this harm must have been inflicted based on her race, religion, nationality, political opinion or membership of a PSG, not just because of her gender. Although the United Nations (UN) does not officially recognise gender as the grounds on which an individual can claim persecution under the Convention, after the 1994 genocide in Rwanda, during which between 250,000 and 500,000 women were raped, the international community came to a consensus that such crimes are crime against humanity and should be recognised as such.[5]

In Bosnia, in the 1990s, rape and sexual violence against women, was used strategically, as a weapon of war, as Muslim women systematically terrorized, raped, and expelled.[6] In this instance such violence was used to “undermine the social fabric of their opponents.”[7] In addition to rape and sexual violence Muslim women who became pregnant as a result of rape, were forced to carry the child to full term.[8] Women in Rwanda, like Bosnia, suffered sexual and gender related assault and violence on a huge scale. In Rwanda, like Bosnia this has resulted in women being shunned from society and denied healthcare and counselling. Additionally this has led to high levels of HIV infection amongst the targeted women, amounting to “slow motion genocide.”[9] Whilst horrific, this systematic abuse of women does not necessarily qualify victims with protection under the Convention as it has so far been difficult for the international community to prove that these rapes and sexual assaults are occurring as a ‘strategy’ or ‘weapon of war’ rather than as a result of generalised violence or civil unrest; and as it stands, the Convention defines persecution as individual persecution excluding are those who seek protection from foreign occupation, generalized violence, civil war, civil disorder, and civil unrest, and are therefore not individual targets or persecution.[10] In the cases of both the Rwandan Tutsis and Bosnian Muslims, victims may have been able to claim and be granted protection under the Convention on the basis of race or religion.

In the Democratic Republic of Congo (DRC) however since the war began in 1998 approximately 40% of all women in the DRC a country with a population of approximately 70 million have been raped. In 2006-2007 alone over 400,000 women were raped.[11] Since 2011 the UNDP has been working with local authorities to prosecute the perpetrators of these assaults, however, in 2011less than 700 cases were heard, and only approximately 60 per cent of cases resulted in a conviction.[12] An approach used to combat this gender based violence has involved UNHCR working within DRC with other humanitarian organizations and local authorities to “strengthen the monitoring of sexual violence and the response.”[13] Although one might argue that it is empowering for DRC to be trying to address these atrocities internally, this program has helped with the deployment of only 96 additional police officers across the Goma region,[14] which considering the magnitude of the crimes, is miniscule.

Australia has approached gender and sexual based violence and assault in a number of different ways, depending on the case. In some cases, women have been defined as a “particular social group” (PSG) for example a Pakistani woman, Ms Khawar, sought asylum in Australia with her three daughters citing gender based domestic violence from her husband and his family. Ms Khawar claimed that due to her gender she the Pakistani authorities (the police) had “systematically discriminated against her by failing to provide her protection and that this was tolerated and sanctioned by the state.” As such, it was argued that Ms Khawar held a well-founded fear of persecution due to a complete lack of state protection because of her (and her daughters’) membership of a particular social group—‘women in Pakistan’.[15] This approach allows for many women suffering persecution to avail themselves of the protection of countries which are party to the Convention, like Australia, the key weakness to this approach however is one of practicality and sustainability. When over 80% of the refugee population worldwide is made up of women and children, “their claims might be undermined by the sheer number of victims,” [16] when there are so many women who have been victims of sexual and gender related assault globally, one might ask the question: Would it be feasible to resettle all of these women outside their countries of former habitual residence?

In cases of sexual and gender based violence and assault, difficulty has arisen around providing evidence that such violence is either state directed, or directly/indirectly condoned by a state by it’s failure to provide effective protection for women, as was the case with Ms Khawar in Pakistan. It should be noted however, that increasingly:

“It [does not] make sense to limit torture to acts involving public officials. After all, non-state actors, such as armed opposition groups, terrorists organisations, private security contractors hired by corporations, and tribal elders enforcing cultural traditions such as female genital mutilation (FGM), engage in practices that look very much like torture, even if they are not covered by the Convention Against Torture definition. Many observers would not include severe forms of domestic violence and child abuse within the rubric too.”[17]

Australia does not stand alone in its approach to Ms Khawar’s case, whereby the Department of Immigration and Citizenship adopted the 1991 UNHCR guidelines which offer a more open interpretation of the Convention, suggesting that “sexual violence, persecution or severe discrimination on the basis of gender, and failure of state protection, may constitute a basis for granting refugee status to women.”[18] In 1993, the Canadian Immigration and Refugee Board also granted refugee status to a Trinidadian woman fleeing domestic violence. The strengths of this approach is that it opens up the existing narrow definition of a refugee to include some of the world’s most vulnerable people, and adheres to the “good office umbrella,” which is a mandate of the UNHCR for parties to the Convention to expand their consideration for refugee claims beyond the conventional framework, in order to ensure that those at risk of persecution including individuals who flee foreign occupation, civil war, and generalized violence are not returned to countries where they will be subjected to serious harm.[19]

In 1996, the USA granted Togo born Fauzinya Kasinga asylum after fleeing Togo, citing gender-based persecution including a forced marriage and forced FGM.[20] This landmark case led to other women fleeing FGM being granted refugee status in the USA and Canada.[21] Likewise families in Sweden have been granted asylum based on the fact that the female family members would risk FGM if returned to Togo.[22] In the UK however, women are routinely refused refugee status when fleeing from FGM, UK Border Agency (UKBA) refused a Gambian woman’s application for asylum to protect her three year old daughter from FGM in 2012. Although approximately 78% of women in Gambia are victims of FGM, UKBA claimed that the applicant “was not in need of asylum… [she] could live safely elsewhere in the Gambia and that the law provided sufficient protection for her and her daughter.”[23] Although on might argue that the UKBA’s approach to FGM as grounds for refugee status is more realistic considering that FGM affects approximately 125 million girls and women and their families,[24] its weakness lies in the assumption that women from the countries where FGM is routinely practiced such as Gambia and Somalia may be able to live safely away from their place of origin (i.e. their home towns) when these are also places were civil unrest, generalised violence and strong patriarchal control exists.

In conclusion, if we look at the responses of the international community to sexual and gender related assault and violence and what this means in each country in terms of refugee status, using sexual violence including rape and forced pregnancy as well as FGM as examples, we can see that since the introduction of the UNs “good umbrella office” and the end of the war in Rwanda, when rape and violence against women, was seen defined as a “crime against humanity,” the international communities willingness to expand their definition of the refugee, either through classifying FGM as a form of torture, or by classifying particularly vulnerable women as members of a PSG, has helped to lessen the serious harm suffered by women due to sexual and gender related assault and violence. The international communities relative failure to intervene during the current conflict in the DRC which includes horrendous sexual assaults on women, and the UK’s rather dismissive attitude towards FGM, demonstrates that “while there has been encouraging movement in some areas [of women’s development] there has been depressingly little in others.”[25]

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Footnotes:

[1] Pease, K. S., International Organisations: Perspectives on Governance in the Twenty-First Century, Second Edition, New Jersey: Pearson Education Inc., (2003) p.235
[2] Australian Government: Australian Law Reform Commission, Family Violence and Commonwealth Laws—Improving Legal Frameworks, Government: Australian Law Reform Commission (2012) electronic edition, https://www.alrc.gov.au/sites/default/files/pdfs/publications/22._migration_-_refugee_law.pdf, viewed 25 August 2014 p. 540
[3] Pease, K. S., p.252
[4] Australian Government: Australian Law Reform Commission, p. 541
[5] Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 in “Refugee Law in Australia,” Australian Government: Australian Law Reform Commission (Last modified on 22 July 2014) electronic resource, http://www.alrc.gov.au/publications/22-refugee-law/refugee-law-australia-0#_ftn11 viewed 25 August 2014
[6] Pease, K. S., p.117
[7] Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 in “Refugee Law in Australia,” Australian Government: Australian Law Reform Commission (Last modified on 22 July 2014) electronic resource, http://www.alrc.gov.au/publications/22-refugee-law/refugee-law-australia-0#_ftn11 viewed 25 August 2014
[8] Glasius in Goodhart, M., Human Rights: Politics and Practice, Oxford: Oxford University Press, (2009) p. 156
[9] Pease, K. S., p.252
[10] Ibid., p.235
[11] Hear Congo, “The DRC and Sexual Violence: Shocking Statistics Compared to the US”,
Florida: No More Tears Inc., (July, 2013) electronic resource, http://www.hearcongo.org/the-drc-and-sexual-violence-shocking-statistics-compared-to-the-us/ , viewed August 25, 2014
[12] UNDP “Fighting sexual violence in the Democratic Republic of Congo” UNDP, electronic resource, (2014) http://www.undp.org/content/undp/en/home/ourwork/crisispreventionandrecovery/successstories/fighting-sexual-violence-in-the-democratic-republic-of-congo/, viewed August 25, 2014
[13] UNHCR, “UNHCR statistics show alarming rise in rape and violence against women in North Kivu” News Stories (13 July 2013) online resource, http://www.unhcr.org/51f7ae846.html, viewed August 25, 2014
[14] Ibid
[15] Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 in “Refugee Law in Australia,” Australian Government: Australian Law Reform Commission (Last modified on 22 July 2014) electronic resource, http://www.alrc.gov.au/publications/22-refugee-law/refugee-law-australia-0#_ftn11 viewed 25 August 2014
[16] Ager, A., Refugees: Perspectives on the Experience of Forced Migration, London: Continuum (2003) p. 210
[17] Shulz in Goodhart, M., Human Rights: Politics and Practice, Oxford: Oxford University Press, (2009) p. 310
[18] Ager, A., p. 207
[19] Pease, K. S., p.236
[20] Calder, R., Commonwealth Office of the Status of Women, Refugee Women, Canberra: United Nations High Commission for Refugees, (2001) p. 51
[21] Ager, A., p. 207
[22] Crawley, H., Refugees and Gender: Law and Process, Bristol: Jordan Publishing Limited, (2001) p. 181
[23] Pugh, R., “FGM: asylum seeker fights deportation to the Gambia,” Australia: The Guardian News and Media Limited, (November 7, 2012) online edition http://www.theguardian.com/society/2012/nov/06/female-genital-mutilation-asylum-gambia, viewed August 25, 2014
[24] World Health Organisation (WHO) Fact Sheet N°241 “FGM” United Kingdom, WHO Media Centre, (February 2014) electronic edition, http://www.who.int/mediacentre/factsheets/fs241/en/, viewed August 25, 2014
[25] Remenyi, Joe, Kingsbury, Damien, McKay, John and Hunt, Janet, Key Issues in Development, New York: Palgrave Macmillan, 2004, p.101

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