Gender and Refugee Status

Thomas Spijkerboer

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9781138251045
• eBook ISBN:
  9781351934817
• Topic: Social Sciences
• Subtopic: Law Theory & Practice
• Index: Social Sciences

This is the first comprehensive socio-legal study of the interrelation between gender and the law of refugee status. In the past decade, the issue has received increasing attention in academic writing, the media and the courtroom. This book contains an interdisciplinary analysis. The empirical data, collected for this study and not published previously, concerns Dutch asylum practice. The Netherlands is a prominent refugee-receiving country in Europe, yet hardly any English texts address Dutch refugee law. The book also covers foreign case law and academic writing. Therefore, the analysis is relevant for all refugee-receiving countries in the Western world; the empirical data on The Netherlands functions as a case study. The book combines perspectives of post-structuralist feminism and post-colonial studies. Refugee women are constructed as a double other. This intersectionality is related to the construction of the Third World as feminine (passive, in need of active outside intervention etc., etc.). The book provides a comprehensive overview of academic writing and of case law on the subject. On this basis of theoretical perspectives that were almost ignored until now, it develops an innovative critique of refugee law discourse and outlines its possible consequences for legal doctrine.

1 Introduction

1.1 The Emergence of Women as an Issue in Refugee Law

Like all legal rules, the refugee definition has been drafted in the male form. According to the 1951 Convention Relating to the Status of Refugees¹ (hereafter: the Refugee Convention), a refugee is any person who “owing to a 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” (Article 1A (2) Refugee Convention). The conference at which the Refugee Convention was drafted discussed the relevance of gender once. Article 3 stipulates that the Convention shall be applied “without discrimination as to race, religion or country of origin”. The Yugoslav delegate proposed that the words “or sex” should be added. This suggestion was rejected because, in the words of the British delegate, “the equality of the sexes was a matter for national legislation”.² The inclusion of sex as a forbidden discrimination ground might have led to conflicts with national legislation: “To quote an example, during a tobacco shortage in Austria the ration for women had been smaller than that for men. It had been alleged in the constitutional courts that that was a violation of the equality of the sexes, but the finding of the courts had been that women needed less tobacco than men”.³ In light of this smoky atmosphere, it is remarkable that the possibility of persecution on acount of gender was mentioned, be it only in passing. The Chairman of the Conference, the UN High Commisioner for Refugees Van Heuven Goedhart, believed “the original idea underlying article 3 to be that persons who had been persecuted on account of their race or religion, for example, should not be exposed to the same danger in the country of asylum. He doubted strongly whether there would be any cases of persecution on account of sex”.⁴ It would last three decades until the next reference to persecution on account of gender was made.

Although refugee women are as old a phenomenon as refugee men, they did not receive much attention until two decades ago. In a mid-19th century monograph on Huguenot refugees in The Netherlands during the 17th century, the author notes that the daughters of exiled families found “a generous protectress” in the Princess of Orange. Also, foundations were instituted for housing Huguenot women, “be they unmarried or widowed”.⁵ In his classical work on refugee law, however, Atle Grahl-Madsen mentions women only in passing. When he discusses the clause excluding refugee status for a person who “has been guilty of acts contrary to the purposes and principles of the United Nations” (Article IF (c) Refugee Convention), he writes: “It would, for instance, be preposterous to brand a member of the Federal council (Bundesrat, Conseil Fédéral) of Switzerland in this way on the ground that women are excluded from the franchise in that country”. In a footnote, he adds that “(i)n this connexion it is interesting to note that reference to ‘sex’ was specifically omitted from the non-discrimination clause in Art. 3 of the Refugee Convention”.⁶ In the first edition of The Refugee in International Law, Goodwin-Gill explicitly acknowledges that women can be refugees, when he begins his analysis of the refugee definition with a sentence on the requirement that an asylum claimant must be outside “his or her” country of origin.⁷ Furthermore, he adds in a footnote to the passage on social group as a persecution ground that “it may be the case that the discrimination suffered by women in many countries on account of their sex alone, though severe, is not yet sufficient to justify the conclusion that they, as a group, have a fear of persecution within the meaning of the Convention”.

In the decade after the publication of Goodwin-Gill’s book, things changed. Hathaway’s standard work was published in 1991 and exclusively used pronouns “in the feminine voice in recognition of the fact that refugee women and girls constitute the majority of the world refugee population, and that many of them are exposed to special problems in the international protection field”.⁸ Furthermore, the index of his book contains the following headings: “gender”, “rape”, “sex (see gender)”, “sexual assault (see rape)”, and “women (see gender)”. In the general sections of his book, he refers to rape as a form of persecution and to the refusal to wear a chador and attend Islamic functions as the expression of a political opinion. Furthermore, the section on social group as a persecution ground contains subsections on gender and family. The second edition of Goodwin-Gill’s book follows suit in 1996 and, although written in the male form, regularly refers to women in addition to containing two specific sections on women. In this changed atmosphere, it was also possible for the UN High Commissioner for Refugee’s full colour 1995 calendar to have “UNHCR and refugee women” as its theme.

The appearance of women as an issue in general refugee law handbooks was largely the result of work since the early 1980s by nongovernmental organisations (NGOs) and academics, who began to criticise the gender blindness of refugee law which, they argued, manifests itself in legal practice and doctrine. The critique held that although nothing in the wording of the refugee definition implied that women could not be refugees, the definition was nevertheless being applied in a biased manner. While some flight motives were specific to women – such as problems with social rules relating to dress (e.g., in Iran), specific forms of political activism (e.g., cooking for resistance fighters) or sexual violence – the critics held that these flight motives were marginalised in legal practice. Dress code problems were dismissed as relating to a (non-discriminatory) law of general application; cooking was seen as too marginal to have possibly attracted the attention of the authorities in the country of origin; and sexual violence was seen as the act of a private person. The posited marginalisation of women in refugee law was held to be wrong and needed to be remedied. The remedy might consist of a reinterpretation or, rather: a correct gender-sensitive interpretation of the terms used in the refugee definition. As will be shown in Chapter 5, there are several variants of this criticism and lively debates on the different variants.

In keeping with the NGOs and academics, the Office of the United Nations High Commissioner for Refugees (UNHCR) (co)organised several conferences on refugee women;⁹ its Executive Committee adopted several Conclusions on refugee women,¹⁰ and UNHCR issued explicit guidelines.¹¹ The critique was strong enough to elicit reactions of Western governments. Guidelines regarding refugee women were issued by decision making authorities in Canada (1993), the USA (1995), Australia (1996) and, although far less comprehensive, The Netherlands (1997). The Swedish legislature inserted a specific provision in its Aliens Act in 1997 and held that people persecuted on account of their gender are entitled to a humanitarian residence permit.¹² A 1998 amendment to the Swiss Asylum Act stipulates that gender-specific flight motives must be taken into account.¹³ The agreement constituting the basis for the new German government in 1998 also contains specific rules with regard to gender persecution.¹⁴ A major aim of the present book is to provide an analytic (as opposed to historical) overview of the legal debate on refugee women. Another major aim is to evaluate the factual claims made within the debate on the basis of three sources, namely statistical data on decisions regarding the asylum applications of women and men; the asylum files of some 250 female applicants; and published case law on refugee women.

1.2 Equality as a Variable in Refugee Law

Most critics apply the concept of equal treatment of women and men. Although few explicitly say that women are recognised less often than men (which would be a clear indication of unequal treatment), many say that justice is simply not done with women, that a gender-sensitive approach is necessary in light of human rights law and the like. The emphasis on gender-sensitivity implies that the critics see the asylum cases of women and men as different, and criticise the fact that they are dealt with without due sensitivity to this difference. In terms of the classical definition of the equality principle: the different cases of women and men are not differentially treated to the extent of their difference; hence the equality principle is violated. The implicit presumption of discrimination (which I also made when embarking on this study) is nevertheless problematic for two reasons. The first is that the presumption appears to be incorrect; the second is that the concept of equal treatment of women and men causes more problems than it solves in our context.

A 1994 survey study of Dutch asylum practice suggested that women actually have a higher recognition rate than men.¹⁵ The analysis of the Dutch population data presented in the present study (Chapter 2), and an analysis of the Canadian data published since 1989 confirm this suggestion. As will be seen, these data do not entirely rule out the possibility of numerical discrimination although my conclusion is that discrimination is not the most plausible interpretation for the present data.

The application and evaluation of the equality principle is notoriously problematic in refugee law, witness the difficulty of assessing the relevance of the decision in one case for other cases. In the context of gender, this is exacerbated by the fact that, even if all other factors can be considered equal, the gender of the applicant may always be a relevant factor. This would make the cases of men and women inherently different, as illustrated by the following two examples.

Imagine the case of a person being raped to bring a – in the eyes of the authorities – dissident family back into line. Our case concerns a young person targeted only as a corollary. Presume there is also no indication that further persecution will follow. Imagine that the applicant is from a country where extramarital sex, whether voluntary or not, will indelibly taint the honour of a female victim and her entire family but not a male victim. If the applicant is a woman, one may argue that being raped will lead to total social exclusion and thus amounts to continuing persecution although no overt threat of further retaliation on the part of the authorities exists. If the applicant is a man, one may argue that being raped will be ignored by his surroundings and there is therefore no threat of future persecution. In this fictitious case, identical individual facts may lead to quite different outcomes for the woman and the man due to different social positions in the country of origin. It can also plausibly be argued that the social positions of women and men are different in every country and thus the asylum cases of women and men are always different.

The next example also involves the comparison of two otherwise very similar cases. The first case concerns a woman who has transgressed a dress code (by wearing a scarf where that is prohibited, by not wearing a scarf where that is obligatory, or by wearing a political sign such as a hammer and sickle or a dollar sign where that is forbidden). The authorities in her country torture her for subversion of the State. The second case concerns the Chinese man who sculpted the Statue of Liberty erected in Tian Men Square in 1989. He is also tortured for subversion of the State. One may argue that these two cases are virtually identical when it comes to the determination of refugee status: they both concern persecution for expression of a political opinion by acting in a particular way in a particular context. The similarity of these cases is not in terms of identical facts but in terms of identical relevance to refugee law.

With the preceding two examples, I hope to have shown that determination of whether the refugee definition has been applied in conformity with the equality principle or not always requires evaluation in light of the refugee definition. The question is whether the refugee definition has been applied correctly or not and hence the equality principle is not an independent criterion. For this methodological reason, I have not attempted to explicitly compare the cases of women and men. In the concluding chapter moreover, I will return to the equality principle.

When I came to the conclusion that there is no numerical discrimination of women, my initial research agenda regarding how bad the discrimination is, and how it is done became more or less irrelevant. In collecting the empirical material however, I encountered many instances of decisions and considerations based on clear assumptions about femininity, gender and sexuality. The effects of these assumptions are arguably negative for women moreover. For example, sexual violence during an interrogation is regularly construed as a private act and not as torture; ...

Table of contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• List of Tables
• Table of Cases
• Abbreviations
• Acknowledgements
• Chapter 1 Introduction
• Chapter 2 Female Applicants in Statistics and General Policy
• Chapter 3 The Construction of the Female Applicant in Decision Making
• Chapter 4 The Construction of the Female Applicant in Jurisprudence
• Chapter 5 Counter-Strategies and the Reactions of Governments
• Chapter 6 Conclusions
• Annexes
• Bibliography
• Index