Women and the 1951 Refugee Convention: Fifty Years of Seeking Visibility

Refuge

Volumn 19, Issue 5, 2001, Pages 25-35

  Valji, Nahla ^a  

^a NONE   (South Africa)

Author keywords

1951 Convention relating to the Status of Refugees; asylum policy; gender; human rights; refugee protection; women

Indexed keywords

EID: 84937333952     PISSN: 02295113     EISSN: 19207336     Source Type: Journal    
DOI: 10.25071/1920-7336.21227     Document Type: Article

References (48)

1. Immigration and Naturalization Service, “Proposed Rules: Asylum and Withholding Definitions,” in ins No. 2092-00; ag Order No. 2339-2000 (Washington, dc: Immigration and Natu-ralization, 2000).
2. Susan Sachs, “Reno Voids Denial of Asylum for Guatemalan Battered Wife,” New York Times, January 21, 2001.
3. The 1951 Convention on the Status of Refugees and the 1967 Protocol that amended it will be referred to hereinafter as the “Convention” or the “Refugee Convention.” 4. Audrey Macklin, “Opening the Door to Women Refugees: A First Crack,” Development and Diaspora: Gender and the Refugee Experience, ed. Helene Moussa, Wenona Giles, Penny van Esterik (Toronto: artemis enterprises, 1996).
4. Sima Wali, “Human Rights for Refugee and Displaced Women,” Women’s Rights, Human Rights: International Feminist Perspec-tives, ed. Julie Peters and Andrea Wolper (New York: Routledge, 1995).
5. Although the author has difficulty with the term women and children, as will be discussed in greater detail, most studies are disaggregated in this manner, making it difficult to give an em-pirical picture without using problematic categories. Wenona Giles, Penny van Esterik (Toronto: artemis enterprises, 1996), 49.
6. Figures are for 1992. See Alison Marie Young, “Refugee Women and the International Refugee Regime: The Dynamics of Tran-sition” (M.A. thesis, Acadia University, 1994), 2.
7. Maryellen Fullerton, “A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group,” Cornell International Law Journal 26 (1993): 507.
8. N. Kelly, “Gender-Related Persecution: Assessing the Asylum Claims of Women.” Cornell International Law Journal 26 (1993): 648.
9. Immigration Appellate Authority, Asylum Gender Guidelines, ed. Nathalia Berkowitz and Catriona Jarvis (London: Crown Copyright, 2000). It is also true, however, that in its application, decision mak-ers have been reluctant to utilize particular social group. As one U.S. court noted, “The legislative history behind the term is uninformative, and judicial and agency interpretations are vague and sometimes divergent. As a result, courts have applied the term reluctantly and inconsistently.” Immigration and Naturalization Service, ins Website: q&a, online: Immigration and Naturalization Homepage .
10. Quoted in Christine Sylvester, “Homeless in International Re-lations,” Feminism and Politics, ed. Anne Phillips (Oxford: Oxford University Press, 1998), 57.
11. These are political opinion, race, religion, nationality, or membership in a particular social group.
12. Wenona Giles, Helene Moussa, and Penny van Esterik, “Intro-duction,” Development and Diaspora: Gender and the Refugee Experience, ed. Wenona Giles, Helene Moussa, and Penny van Esterik (Toronto: artemis enterprises, 1996), 25.
13. Jill Steans, Gender and International Relations (New Brunswick, nj: Rutgers University Press, 1998).
14. Immigration and Refugee Board, “Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecu-tion,” (Ottawa: Government of Canada, 1993).
15. The Hague Convention respecting the Laws and Customs of War of 1907 mentions the need to respect “family honour and rights.” The Nuremberg Charter drafted after wwii did not men-tion rape or sexual violence as a crime, and of the four Geneva Conventions of 1949, only one referred to sexual violence. The reference is in the fourth Convention, which prohibits “attacks against women’s honour,” citing in particular rape, enforced prostitution, or any other indecent assault. Barbara C. Bedont, Gender-Specific Provisions in the Statute of the icc, online: Wom-en’s Caucus for Gender Justice (date accessed: January 22, 2001).
16. United Nations High Commission for Refugees, “The State of the World’s Refugees, 2000” (Oxford University Press: UNHCR, 2000). There is a risk that, with the harmonization of immigration policies in the new eu community, policies will be harmonized at the “lowest common denominator,” thus setting back any gains that have been made in some European countries for granting asylum on the basis of gender.
17. Wenona Giles, “Aid Recipients or Citizens?” Development and Diaspora: Gender and the Refugee Experience, ed. Helene Moussa
18. Incidences of domestic violence have been found to increase in flight as well as in resettlement, as power balances shift within the family. This may also be caused by frustration or a need to reestablish patriarchal control in a new and threatening cul-tural context. See, for example, Susan Forbes Martin, Refugee Women, Women and World Development Series (London: Zed Books Ltd., 1991).
19. Doreen Indra, ed., Engendering Forced Migration: Theory and Practice, vol. 5 of Refugee and Forced Migration Studies (New York: Berghahn Books, 1999), 58.
20. Valerie L. Oosterveld, “The Canadian Guidelines on Gender-Related Persecution: An Evaluation,” International Journal of Refugee Law 8, no. 4 (1996): 586.
21. For a discussion of automatic joinder in a Canadian context, see David Matas, “Gender and Refugee Law” (paper presented at the Gender Issues and Refugees: Development Implications, York University, 1993).
22. Khadija Elmadmad, “The Human Rights of Refugees with Special Reference to Muslim Refugee Women,” Engendering Forced Migration: Theory and Practice, ed. Doreen Indra (New York: Berghahn Books, 1999).
23. Young, “Refugee Women and the International Refugee Regime,” 33.
24. Maryam Namazie, Hambastegi 89 (89) online: International Federation of Iranian Refugees
25. Henry Martenson and John McCarthy, “In General, No Serious Risk of Persecution: Safe Country of Origin Practices in Nine European States,” Journal of Refugee Studies 11, no. 3 (1998).
26. Henry Martenson and John McCarthy, “In General, No Serious Risk of Persecution: Safe Country of Origin Practices in Nine European States,” Journal of Refugee Studies 11, no. 3 (1998)., 314 Although automatic denial of applications is not standard practice at present, U.K. Home Secretary Jack Straw announced in February a proposal for a three-tier system of sco’s compris-ing “safe,” “intermediate,” and “repressive” states. Those from safe states would automatically be denied asylum, while those from intermediate states would carry the “presumption of safety,” thus rendering the likelihood of protection minimal. Straw also called upon the eu as a whole to adopt a radical shift in its thinking about the Refugee Convention.
27. G. Hinchelwood, “Medical Foundation for the Care of Victims of Torture.” Cited in Immigration Appellate Authority, Asylum Gender Guidelines. Immigration Appellate Authority, Asylum Gender Guidelines, ed. Nathalia Berkowitz and Catriona Jarvis (London: Crown Copyright, 2000).
28. Joan Fitzpatrick, “International Norms and Violence against Women,” Human Rights of Women: National and International Perspectives, ed. Rebecca J. Cook (Philadelphia: University of Pennsylvania Press, 1994).
29. The use of this term is pulled from the work of Cynthia Enloe on the treatment of women by the media during the Gulf War. Cynthia Enloe, “The Gendered Gulf,” Collateral Damage: The “New World Order” at Home and Abroad, ed. Cynthia Peters (Boston: South End Press, 1992).
30. Heaven Crawley, “Women and Refugee Status: Beyond the Pub-lic/Private Dichotomy in uk Asylum Policy,” Engendering Forced Migration: Theory and Practice, ed. Doreen Indra (New York: Berghahn Books, 1999), 322.
31. Giles, “Aid Recipients or Citizens?” 44.
32. Indra, Engendering Forced Migration, xiv.
33. Giles, “Aid Recipients or Citizens?” 54.
34. The term burden sharing is contentious for a number of rea-sons, aside from the implications that it has on reinforcing the role of victim for women. The term is also politically disin-genuous because it seeks to distance the Northern sphere from the “problems” of the South, without acknowledging its large share of responsibility for the environmental, economic, and political destabilization of poorer states.
35. Steans, Gender and International Relations, 14.
36. Bridget Walker, “The Question of Gender,” Forced Migration Review 20 (1995).
37. Elmadmad, “The Human Rights of Refugees.”
38. United Nations High Commission for Refugees, “Executive Committee Conclusion No. 39 Refugee Women and International Protection,” (Geneva: UNHCR, 1985).
39. Although headway is being made in adopting guidelines and promoting gender sensitivity, many officials—even at the high-est levels—are deeply critical of what they view as a move away from the political intentions of the Convention and “over-liberal” interpretations. For example, only two months before adoption of the gender guidelines in the U.K., Home Secretary Jack Straw, commenting on the granting of asylum to two Pa-kistani women fleeing abuse, observed that there was “no way it can be realistically argued that that was in contemplation when the 1951 Convention was put in place.” Alan Travis, “Asylum Rules Eased for Women,” Guardian, December 5, 2000.
40. To date, the U.K., Canada, United States, Australia, New Zea-land, and a number of European countries have guidelines or policy on gender persecution. Most recently the European Council on Refugees and Exiles (ecre), issued its policy recommendation for harmonizing European immigration and asylum procedures, making favourable recommendations for gendered policy. In particular, it noted that “states do have du-ties in international law to prevent harm by non-state agents and that in situations where there is a violation of human rights then there is persecution. A family member can be considered just as much an agent of persecution as an armed opposition group.” (See Canadian Council for Refugees, “Position on Interpretation of Article 1 of the Refugee Convention,” online: [last modified: September 2000]).
41. Sweden and South Africa. Both of these examples of binding policy are problematic, however. Sweden has chosen to recog-nize persecution because of “sex,” as opposed to the internationally recommended “gender.” This is problematic because legislation continues to treat the persecution of women solely as a characteristic of their essential biological difference, as opposed to a consequence also of their prescribed gender roles, as culturally defined. It also relegates this category to a standard of protection that is secondary to that given to Convention refu-gees. K. Folkelius and G. Noll, “Affirmative Exclusion? Sex, Gen-der, Persecution and the Reformed Swedish Aliens Act,” International Journal of Refugee Law 10, no. 4 (1998). In South Africa the Refugee Act came into effect only in 2000. Although it rec-ognizes gender as a social group, and the country has drafted a set of guidelines for determination officers, there has yet to be one case heard on these grounds, and it is unlikely that the guidelines have ever been distributed to determination officers.
42. Immigration and Naturalization Service, ins Website—q&a.
43. Audrey Macklin, “A Comparative Analysis of the Canadian, US and Australian Directives on Gender Persecution and Refugee Status,” Engendering Forced Migration: Theory and Practice, ed. Doreen Indra, Refugee and Forced Migration Studies (New York: Berghahn Books, 1999).
44. United Nations High Commission for Refugees, “UNHCR Sexual Violence against Refugees: Guidelines on Prevention and Responses (Extracts), International Journal of Refugee Law (1995).
45. Young, “Refugee Women and the International Refugee Re-gime.”
46. Monica Boyd, Canada’s Refugee Flows: Gender Inequality, online: University of California, Hastings College of Law (date accessed: January 25, 2001).
47. United Nations High Commission for Refugees, “The State of the World’s Refugees,” 2000.
48. U.S. Committee for Refugees, bia Sends Mixed Message on Gender Persecution Cases, online: U.S. Committee for Refugees (last modified: 2000).