Gender and the Symbiosis Between Refugee Law and Human Rights Law
By Deborah E. Anker and Paul T. Lufkin
International refugee law is undergoing an important transformation, catalyzed by attention to women's issues in general, and the development of new "gender asylum" doctrines and procedures in particular. Here, and in similar developments, the human rights and refugee regimes — the two broad legal systems created by the international community to address human rights abuses — are increasingly likely to find common ground.
"Gender asylum law," or the interpretation of forms of violence against women within mainstream human rights norms and definitions of persecution, can be best illustrated with three examples: rape and other forms of sexual violence, female genital surgery (FGS), and family violence. These examples also illuminate the growing legal harmonization between the human rights regime (created to monitor and deter abuse) and the refugee regime in place to provide surrogate state protection to qualifying people who are able to cross borders.
Human Rights and Gender-Based Persecution
Before examining the specific areas outlined above, it is important to understand both the legal definitions and the developments relevant to gender asylum law.
To begin with, "gender" in the human rights context refers to socially determined divisions of roles between men and women, socially constructed notions of femininity and masculinity, and resulting power disparities that shape and define women's identities and status within societies.
Substantively, the development of gender asylum law has incorporated a human rights framework into refugee law. Gender asylum law has also been a catalyst, a major vehicle for the articulation and acceptance of the human rights paradigm in several key legal cases. In addition, the United Nations High Commissioner for Refugees (UNHCR), practitioners, and activists consciously have built gender asylum law on the edifice of international women's human rights law and the work of the international women's human rights movement. For reasons that are as much strategic as principled, they have argued that, in order to respond to women's experiences, refugee law needs to evolve through a process of interpretation, rather than be amended to incorporate new gender-specific provisions.
The bars to women's eligibility for refugee status lie not in the refugee regime's legal categories per se, some have insisted, but in the incomplete and gendered interpretation of refugee law and the failure, as described by refugee legal scholar Heaven Crawley, to acknowledge and respond to the "gendering of politics and of women's relationship to the state." Simply adding gender or sex to the refugee regime's current enumerated grounds of persecution (race, religion, nationality, political opinion, and social group) would not solve this problem, nor would it address cases such as those discussed below where the harm feared (an element of "persecution") was unique to, or disproportionately affected, women.
1. Rape and Other Forms of Sexual Violence
Rape was one of the first issues affected by the articulation of the human rights paradigm within refugee law and the increased willingness to consider gender-specific abuses within the scope of persecution. Although the Canadians early acknowledged that rape should be treated as "persecution of the most vile sort," generally rape was regarded as being in the private sphere in many cases, beyond the reach of refugee law. Even cases that fit the traditional paradigms of refugee law were being dismissed — largely because the physical harm involved was sexual and directed at a woman. For example, when a Salvadoran woman whose family was active in a cooperative movement was raped by death squads while they shouted political slogans and hacked her male relatives to death, she was deemed the victim of private violence. Similarly, a US immigration judge denied asylum to a Haitian woman who was gang-raped because of her support for the deposed president, though the ruling was eventually overturned.
Indeed, the flight of Haitian refugees to the United States during the 1970s and 1980s helped precipitate the contemporary refugee rights movement in the United States. When Haitian women fled the violence during the time of the coup, there was a network in place to hear, and bear witness and give voice to their stories. These stories became the basis for asylum claims, resulting ultimately in several legal developments.
To begin with, in 1993 scholars and advocates obtained the first administrative precedent in the US granting asylum to a woman and recognizing rape as serious harm that could constitute persecution. The United States in 1995 issued national gender asylum guidelines, which state that "severe sexual abuse does not differ analytically from . . . other forms of physical violence that are commonly held to amount to persecution." The US guidelines were an important development internationally, building on precedent set by Canada.
2. Female Genital Surgery
Female genital surgery (FGS; also referred to as "female circumcision" or "female genital mutilation") has been extensively discussed in human rights literature and elsewhere. It is a traditional practice that involves removing parts of the female genital organs and, in some cases, stitching the two sides of the vulva together, usually without anesthesia or sterilized instruments. Although FGS is a ritual practiced in many cultures and religions, it is especially well-documented in the Horn of Africa and in Muslim countries.
FGS has been identified as a human rights issue in various international fora, but the feminist analysis of FGS as a human rights violation is complicated because FGS crisscrosses many complex cultural, gender, and racial questions in the human rights regime. There is a growing (but still small) body of law recognizing FGS as the basis for a refugee claim.
Unlike international human rights jurisprudence, which has identified FGS as a human rights abuse, but not necessarily a violation of core rights, several refugee decisions have linked FGS to mainstream human rights violations or serious harm within the meaning of persecution. The Immigration and Refugee Board of Canada has found that the return of a woman to Somalia to face involuntary infibulation violated, for example, numerous provisions of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, including the right to life and the prohibition against cruel, inhuman, or degrading treatment. In the United Kingdom, authorities recognize FGS as a form of torture, and some Australian case law describes it as a serious harm within the meaning of persecution, that is, an offence to human dignity.
In a 1996 US decision, Matter of Kasinga, the Board of Immigration Appeals found that FGS constituted serious harm "consistent with our past definitions" of persecution, and rejected the immigration authorities' argument that in cases of cultural practices a heightened "shock the conscience" test should be applied. While suggesting there is flexibility in human rights' interpretation and application within and between cultures, recent commentators and some prominent refugee decision makers have taken a strong anti-relativist position, arguing, in the words of Professor Rodger Haines of the New Zealand Refugee Status Appeals Authority, that, "Breaches of human rights cannot be ignored, discounted, or explained away on the basis of culture, tradition or religion."
Since refugee law does not attempt to set a corrective agenda, tell another country how to act, or propose plans for eradicating particular practices, it has avoided controversies that have been most sensitive and divisive in debates concerning FGS and cultural relativism in general. Such debates within the human rights community have been, at times, almost immobilizing.
Refugee law does manage to address an important part of the human rights question: whether an international human right is implicated in the practice of FGS. Indeed, because of the cultural relativist conundrum, the continued failure to take women's rights seriously, and the complexity of the state responsibility question, gender asylum law is one of the few areas where the question of FGS as a human rights violation is confronted.
What is significant with respect to both rape and FGS is that refugee law has identified key forms of violence against women — namely, rape/sexual violence and FGS — as core violations of their human rights. It has been able to do so by applying a human rights paradigm and building on the work of the international human rights community. Making the relationship between refugee law and human rights law explicit creates opportunities for advances within both fields.
In the case of FGS, the human rights issues may be more clearly identified in refugee law than under the international human rights regime, whose purposes are broader and directed at fundamental change. In other cases, however, refugee law and human rights law may need to struggle together to interpret critical issues common to both regimes, such as the scope of state responsibility. The issue of violence within the family is one such example.
3. Family Violence and State Responsibility
The issue of family violence is implicated in a broader discussion about the limits of state responsibility. As a matter of doctrine, both human rights law and refugee law recognize state responsibility for human rights violations by non-state actors (although there is a dissenting, minority position in refugee law). Refugee law, however, has long grappled with fundamental questions of whether "persecution," which implies some failure of state protection, requires direct or indirect — or any — state complicity at all. These questions become more complex when one is faced with collapsing states or at times when there is no functioning centralized authority at all. Human rights law, which struggles with similar questions, can learn from the experience of refugee law.
An emerging body of refugee case law concerns family violence, an issue which remains at the margins of human rights law, despite being the most pervasive form of violence against women. In cases of violence by husbands and male domestic partners, the question of state protection is especially complex due to different levels of interweaving responsibility and enabling of the "private" harm by the state.
The Convention Against Torture (CAT or Torture Convention), which as a human rights instrument extensively addresses prevention of torture, also contains a non-return provision. Like the Refugee Convention, it prohibits States Parties from returning a foreign national to a country in which he or she would face torture. The non-return obligation in the Refugee and Torture Conventions is an obvious point of contact between human rights and refugee law. Claims for protection from return to torture often go hand-in-hand with — or follow the denial of — claims for refugee protection and status. Torture is also an extreme example of serious harm within the meaning of persecution. For both of these reasons, the human rights corpus defining torture is incorporated into refugee law.
The CAT includes a requirement of official action, consent, or acquiescence. The Committee Against Torture, which monitors compliance with the Torture Convention, as well as some regional bodies, has begun exploring the boundaries of this state action requirement. In some limited instances, refugee claimants fleeing family violence have also been testing those boundaries. The US Board of Immigration Appeals in the Kuna matter, decided in 2001, granted a request for protection from return under the CAT to a woman fleeing years of violence by her husband. Her husband, who had governmental ties, had previously committed crimes with impunity. As a result, the board found state acquiescence even where the wife did not seek state protection because she reasonably believed that it would be futile. Although the relief granted initially was limited to her CAT claim, it is significant that the board found that the international legal definition of torture can, under some circumstances, include violence within the family. The failure of human rights law to clearly designate violence against women as torture has been central to the feminist critique.
Refugee law's recent major developments are increasingly drawing on the international human rights paradigm. The three examples related to gender asylum law explored above may in fact be leading to a next stage — already begun — in which refugee law increasingly implicates economic and social rights. As refugee law continues to mature, it likely will raise new state responsibility questions and interact more closely with other human rights instruments, including not only the CAT, but other conventions as well.
Nevertheless, tensions continue to exist between the refugee and human rights movements. Problems of cultural relativism may lie at the heart of these conflicts. While refugee law may be formally non-intrusive and non-judgmental, it does make a determination of a state's willingness and ability to protect a particular citizen or resident, and in so doing lays claim to an international human rights standard. When the legalized refugee regime consists almost exclusively of states in the North determining refugee claims from the South, these purportedly international human rights-based judgments seem or are one-sided, patronizing, and hypocritical. This discrepancy is especially pronounced in gender persecution cases, since violence against women (including intra-family violence) is prevalent throughout the world.
Refugee law, ultimately, reflects the human rights community's own analyses of human rights conditions in various countries. It also reflects the human rights community's own tensions and dilemmas, as the FGS example illustrates. Refugee law offers a particular framework that confronts human rights issues, but does so somewhat less broadly than under the human rights regime's more ambitious framework. Refugee law does not seek to reform states and does not necessarily address root causes because its role is ultimately palliative. Moving forward will require greater clarity about the differences, as well as the similarities, between the two regimes. In this process, new ideas advanced under gender asylum law may continue to play a catalytic role.
A complete list of the relevant sources appears in Anker, Refugee Law, Gender, and the Human Rights Paradigm, 15 Harv. Hum. Rts. J. 133 (2002).
Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., Supp. No. 16, U.N. Doc. A/810 (1948).
Convention relating to the Status of Refugees, opened for signature July 28, 1951,
19 U.S.T. 6259, 189 U.N.T.S. 137, and the Protocol relating to the Status of Refugees,
opened for signature Jan. 31, 1976, 19 U.N.T.S. 6223, 606 U.N.T.S. 267.
Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature Dec. 18, 1979, G.A. Res. 34/180, 34 U.N. GAOR, Supp. No. 46, U.N. Doc. A/34/46 (1979), 1249 U.N.T.S. 13 (entered into force Sept. 3, 1981).
Anker, Deborah. 1999. Supp. 2000. Law of Asylum in the United States. Boston: Refugee Law Center, Inc.
Charlesworth, Hilary and Christine Chinkin. 2000. The Boundaries of International Law. Huntington, NY: Juris Publishing Inc.
Crawley, Heaven. 2001. Refugees and Gender: Law and Process. 2nd ed. Bristol, UK: Jordan Publishing Limited in association with Refugee Women's Legal Group (RWLG).
Goodwin-Gill, Guy S. 1996. The Refugee in International Law. 2nd ed. Oxford and New York: Clarendon Press.
Hathaway, James. 1991. The Law of Refugee Status. Toronto: Butterworths.
Newman, Frank and David Weissbrodt. 1996. International Human Rights. 2nd ed. Cincinnati, Ohio: Anderson Publishing.
Steiner, Henry J. and Philip Alston. 2000. International Human Rights in Context. 2nd ed. Oxford: Oxford University Press.
Toubia, Nahid. 1993. Female Genital Mutilation: A Call for Global Action. New York: Women Ink.
Articles and Reports:
Anker, D. 2001. Refugee Status and Violence Against Women in the 'Domestic Sphere'. Geo. Immig. L. J. 15:391, 391-392.
Haines, R. Forthcoming. Gender-Related Persecution. Cambridge: Cambridge University Press.
2001. Paper submitted to UNHCR Global Consultations on International Refugee Protection, 2nd track roundtable.
Lewis, Hope. 1995. Between Irua and 'Female Genital Mutilation': Feminist Human Rights Discourse and the Cultural Divide. Harv. Hum. Rts. J. 8: 1-55
Organization of American States. 1995. Report on the Situation of Human Rights in Haiti. OEA/Ser.L/V/II.88, Doc 10 rev. 199-123
The authors are Deborah E. Anker, Head of the Harvard Law School Immigration & Refugee Clinical Program; and Paul T. Lufkin, Judicial Staff Attorney with the Supreme Court of California. A longer version of this article, entitled "Refugee Law, Gender, and the Human Rights Paradigm," appeared in the Spring, 2002, edition of the Harvard Human Rights Journal (© 2002, by the President and Fellows of Harvard College).
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