'Rape, abduction, sexual harassment, prostitution, physical violence and the not infrequent obligation to grant 'sexual favours' in return for documentation and/or relief goods, remain a distressing reality for many refugee women'. ** The High Commissioner for Refugees
This paper reviews the existing practice of legal protection of refugee women, recognising that the 'universal and general' language in which mainstream refugee issues are presented is not gender-neutral1. Rather, this universal representation of what is essentially male has led to the delegitimation of some themes, either by presenting them as women specific and thus marginal to the central debate (eg reproductive health), or by accepting them as 'natural' consequences of being a refugee (eg rape2) and as such beyond legal regulation3.
While dealing with the general human rights of refugees, as included in international human rights instruments, is beyond the scope of this discussion, it must be stressed that refugee status should not affect a person's human rights. More specific to the present context, the Convention on the elimination of all forms of discrimination against women, especially the principles of nondiscrimination contained in subarticles 2/c and 2/d, should be kept in mind when considering women refugees.
The most important international instruments on refugees are the 1951 Convention Relating to the Status of Refugees (Convention), its 1967 Protocol (Protocol), and the Statute of the Office of the United Nations High Commissioner for Refugees (UNHCR Statute). However, due to the near-total silence regarding women refugees in these instruments, reference is also made to 'soft law'. This term indicates nonbinding instruments such as 'recommendations', 'declarations' and 'guidelines' made by different international bodies4.
Most of the literature on refugee women, following the model set by the Convention, focuses on the determination of status. This reflects two assumptions:
i) that the individualistic approach to the problem of refugees is adequate; and
ii) that granting refugee status would automatically provide protection.
Neither of these assumptions holds true for the majority of women refugees. In most developing countries, refugees arrive en masse and individual criteria for the determination of status are irrelevant. The notion that holding refugee status provides protection fails to take account of the fact that persecution may persist even after status is granted5.
Refugee women are at an added disadvantage because of their 'otherness'; not only are they 'foreigners in an alien environment', but they often have to deal with institutions that are insensitive to their particular needs. Thus more critical, comprehensive research on rules and mechanisms that would ensure actual protection after the granting of status is needed.
If protection is to be understood as 'taking all necessary measures to ensure that refugees are adequately protected and effectively benefit from their rights'6 then it would contain two components: determination of status and physical safety. Neither the UNHCR Statute nor the 1967 Protocol contains any articles that specifically apply to refugee women. Even the Convention, the instrument containing most of the substantive rules on refugees, does not mention refugee women. The only article that could be relevant is article 12, concerning personal status. This article sttes that regarding npersonal status, more particularly rights attaching to marriagen, the refugee 'shall be governed by the law of the country of his domicile' (emphasis added).
This article puts the family, which is incidentally where most violence against women occurs7, outside the scope of refugee law, implying no concern with inequalities which may exist within the family. This is in keeping with the outdated view that the 'private sphere' is outside the domain of legal regulation.
The debate on status determination revolves around two points, the first concerning what constitutes persecution and the second concerning the grounds for recognising status.
Does 'sexual violence' constitute persecution for the purposes of status determination? While there seems to be little dispute that sexual violence carried out by state agents in their official capacity does constitute persecution, agreement stops there8. In other contexts, where violence is carried out by groups outside government control, or when the government is unable or unwilling to provide protection (ie a situation where responsibility would usually be imputed to the state)9, there is a tendency for domestic bodies determining refugee status to characterise sexual violence as 'strictly personal'10. There is even less consistency in viewing actions other than rape (eg genital mutilation, serious gender-based discrimination, oppressive social norms) as persecution. However, state practice in this regard differs widely, some being more liberal than others.
Concerning grounds for recognition of status, it is accepted that persecution itself is not enough for recognition of refugee status. This persecution must be based on one of the following grounds: race, religion, nationality, membership of a particular social group, or political opinion. These grounds reflect predominantly male paradigms while presenting them as universal, thus in effect marginalising women's experiences of persecution while maintaining apparent neutrality11. There are two major positions on the question of whether persecution claims based on the gender of the victim are valid grounds for refugee status. The first is that gender could be included under the 'social group' category. This approach was adopted by the European Parliament in a 1984 resolution and by the UNHCR Executive Committee in a 1985 Conclusion. This Conclusion 'recognised that states . . . are free to adopt the interpretation that women asylum-seekers . . . may be considered as a 'particular social group'. Critics of this position argue that this is not sufficient to cover all the cases where women are persecuted, especially when the persecution is based solely on gender. Moreover, few countries opted for this interpretation of social categories, while the majority continued to exclude women from the social group category. Consequently, the second position argues for the explicit inclusion of gender as a separate ground for persecution, as he only means to ensure effective protection for women refugees.
Another important aspect of status determination in this context is procedure. Victims of sexual violence in particular often find it very difficult to discuss their experiences with male interviewers and interpreters. Yet, even in states which do provide female staff as a matter of policy, these are not automatically available to women asylum seekers. The need for appropriate procedures for refugee women was recognised in the UNHCR Guidelines on the protection of refugee women. However, this recognition has not translated into legally binding instruments.
Physical safety of refugee women is understood here in a wide sense to include not only freedom from sexual violence, but also access to basic needs such as nutrition and health (including aspects of reproductive health). Instances of breach of physical safety of refugee women are well documented, whether during flight, at the borders, during status determination procedures, or after the granting of status12. Yet, as previously argued, the emphasis in jurisprudence and doctrine remains on the individualistic approach to determination of status. While this approach may be appropriate for the woman who is a 'critical intellectual, active with a high profile in illegal resistance, organised, ideologically well-versed'13, it does not correspond to the protection needs of most refugee women.
As a consequence, issues concerning the physical safety of refugees (especially those who are women) lie outside the scope of hard international legal instruments. It seems to be generally accepted that the matter of ensuring the physical safety of refugees on the international level should be dealt with as a policy issue as opposed to a law issue. Thus, when enumerating the 'legal instruments relevant to sexual violence' the UNHCR Guidelines on sexual violence against refugees mentioned no refugee-specific instruments at all. Emphasis has been placed on programmes such as the Anti-Piracy Programme established by the Royal Thai Government14, or on a 'variety of measures' reported by UNHCR15. Even these 'measures' are, at best, sporadically applied. Due to the ad hoc nature of such measures, no consistent policy or state practice for the physical protection of refugees has emerged.
The major international instrument on refugees, the Convention, was drafted exclusively by men; all the international refugee law instruments are phrased in the masculine voice. The international approach to issues that affect refugee women, whether concerning status determination or protection, has at best followed the 'addwomenandstir' model; at worst it has discarded women's specific needs and experiences as irrelevant. It is not surprising, therefore, to see that genders-specific persecution of women is still not universally accepted as valid grounds for the granting of status, and that physical safety of refugee women is dealt with in soft law instruments and ad hoc policies.
To make the international refugee legal system appropriate for women will require a thorough exposure of the biases inherent in the structures and assumptions of the law. Without such critical examination (and the subsequent inclusion of its results in hard legal instruments) efforts by the international refugee regime to avail women amount to no more than scattered patchwork.
Ghaith Al-Omari is a Visiting Study Fellow at the Refugee Studies Programme.
1. Indra D, 'Some feminist contributions to refugee studies'. Paper presented at CASCA annual meeting, York University, Toronto, 1993.
2. Johnsson A, 'The international protection of refugee women: A summary of principal problems and issues' in International Journal of Refugee Law, 1:2, 1989, pp 221232.
3.Bower K, 'Recognizing violence against women as persecution on the basis of membership in a particular social group' in Georgetown Immigration Law Journal, 7:1, 1993, pp 173206.
4.This paper will deal with international refugee law. Reference to some domestic laws, policies, and jurisprudence will be made only so far as they exemplify state practice. It is not intended as a comprehensive compilation of such laws.
5.Ferris A, 'Refugee women and violence'. Unpublished paper, 1990. Kelly, 'Report on the International Consultation on Refugee Women, 1519 November 1988, with particular reference to protection problems' in International Journal of Refugee Law. Johnsson A, 'The international protection of refugee women: A summary of principal problems and issues' in International Journal of Refugee Law, 1:2, 1989, pp 221232.
6.The High Commissioner for Refugees nNote on refugee women and international protectionn, presented to the Executive Committee of the High Commissioner Programme, Fortyfirst Session, 1990.
7.Ferris A, 'Refugee women and violence'. Unpublished paper 1990.
8.Leiss A and Boesjes R, Female asylum seekers: a comparative study concerning policy and jurisprudence in the Netherlands, Germany, France, the United Kingdom, also dealing summarily with Belgium and Canada, Dutch Refugee Council, Amsterdam, 1994.
9.Bower K, ibid; and Hathaway J, The Law of Refugee Status, Toronto, Butterworth, 1991.
10. Bower K, ibid; and Leiss A and Boesjes R, ibid.
11. Greatbatch J, 'The gender difference: feminist critiques of refugee discourse' in International Journal of Refugee Law, 1:4, 1989, pp 518527.
12. UNHCR Sexual violence against refugees: guidelines on prevention and response, Geneva, 1995.
13. Spijkerboer T, Women and refugee status: beyond the public/private distinction, Emancipation Council, The Hague, 1994.
14. Johnsson A, ibid.
15. The High Commissioner for Refugees 'Note on refugee women and international protection', ibid.
October 1996