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Making the Refugee Convention Gender Sensitive: The Canadian Guidelines

Published online by Cambridge University Press:  17 January 2008

Rebecca M. M. Wallace
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Human rights violations committed against women have become an increasingly high priority on the international agenda.1 Rape, “honour killings.”, bride-burning, genital mutilation, forced sterilisation, forced abortion, domestic violence are all acts of violence regularly committed against women. What makes women the target of such acts is primarily if not exclusively their sex. Membership of the female sex is what creates the risk. Women have been afforded minimal redress in international fora and this has been particularly true within the context of refugee determination. Women and children make up the majority of the world's refugee population2 yet, because of their comparative lack of mobility, the refugee jurisprudence which has evolved has been based primarily on the experiences of men. However, women often fear persecution for reasons different from men, and when they do fear persecution for the same reason as men they often experience the persecution differently. There is evidence that contemporary refugee law is becoming gender sensitive. In March 1993 the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution were issued by the Chairperson of the Canadian Immigration and Refugee Board.3 The Guidelines were novel in that their promulgation made Canada the first country to recognise formally that cognisance should be given to claims by refugee applicants of alleged genderrelated persecution. This short article will identify the raison d'être of the Guidelines, articulate their principal characteristics and assess their impact both within Canada and beyond.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 45 , Issue 3 , July 1996 , pp. 702 - 711
Copyright
Copyright © British Institute of International and Comparative Law 1996

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References

1. “The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights … Gender-based violence and all forms of sexual harassment and exploitation, including those resulting from cultural prejudice and international trafficking, are incompatible with the dignity and worth of the human person, and must be eliminated.” Vienna Declaration and Programme of Action, adopted following the UN World Conference on Human Rights, Vienna, June 1993. For full text of Action Programme see 14 H.R.L.J. 353. See also Arts.1 and 2 of GA Res.48/104 containing the Declaration on the Elimination of Violence Against Women (23 Feb. 1994) (1994) 33 I.L.M. 1049; see also Art.5(g) of the Statute of the International Tribunal for Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (1993) 32 I.L.M. 1159 and Art.3 of the Statute of the International Tribunal for Rwanda (established by Security Council Res.955(1994) (1994) 33 I.L.M. 1598 in which rape is designated as a crime against humanity. For a regional instrument see Organisation of American States: Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (1994) 33 I.L.M. 1534. The Fourth World Conference on Women held in Beijing from 4–15 Sept., 1995 identified violence against women as a critical area of international concern.

2. It is estimated that women and children make up some 80% of the world's refugee population. Conservative estimates put that figure at 19 million and this figure does not include displaced persons made homeless within their own country, of whom it is estimated there are some 25–30 million.

3. Guidelines issued by the Chairperson pursuant to s.65(3) of the Immigration Act, Immigration and Refugee Board, Ottawa, Canada, 9 Mar. 1993. The Guidelines were the first issued pursuant to the Immigration Act (Bill C–86) as enacted by S.C. 1992, c.49— amending existing immigration legislation and granting the IRB Chairperson legislative authority to issue Guidelines to assist IRB members and adjudicators in carrying out their duties in respect of a particular issue or set of issues. The Gender Guidelines were the first to be issued by the IRB Chairperson, Mrs Mawani.

4. 1951 Convention Relating to the Status of Refugees, 189 U.N.T.S. 150; Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267.

5. Art.1.A(2), 1951 Convention as amended by Art.1.2, 1967 Protocol.

6. The UN High Commission for Refugees (UNHCR) has recognised the plight of female refugees and “strongly condemns persecution through sexual violence, which … is also a particularly serious offense to human dignity” and “supports the recognition as refugees of persons whose claim to refugee status is based upon a well-founded fear of persecution, through sexual violence, for reasons of race, religion, nationality, membership of a particular social group or political opinion”: and accordingly recommended the development by States of appropriate guidelines on women asylum-seekers, “in recognition of the fact that women refugees often experience persecution differently from refugee men” and the importance of initiating procedures for the “determination of refugee status whereby asylum-seekers who may have suffered sexual violence are treated with particular sensitivity”: UNHCR Executive Committee Conclusion (EXCOM) No.73 (XLIV)(1993). See also Guidelines on the Protection of Refugee Women and in particular para.54 (UNHCR, July 1991). Platform of Action (Beijing 1995) Strategic Objective D.1., para.128 calls upon governments, international organisations and non-governmental organisations to encourage the dissemination and implementation of relevant UNHCR Guidelines and Recommendations on the Protection of Refugee Women.

7. Guidelines, p.2.

8. The risk factor is not sexual status per se but, rather, the woman's particular identity (i.e. racial, national or social) or what she believes in or is perceived to believe in (i.e. religion or political opinion).

9. Because of the status, activities or views of their spouses, parents, siblings or other family members.

10. Such laws and practices, by singling out women and placing them in a more vulnerable position than men, may create conditions precedent to a gender-defined social group.

11. The term was included without discussion on the initiative of the Swedish delegate. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Jan. 1992), para.77 characterises a “particular social group” as one normally comprising “persons of similar background, habits or social status. A claim to persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e. race, religion or nationality.”

12. An analysis of the existing jurisprudence of the interpretation of “particular social group” is outside the scope of this article. For a brief overview of some relevant decisions, UK and foreign, see Michael Haran, “Social Group for the Purposes of Asylum Claims” (1995) 9 Imm. and Nat.L and P. 64. For a comprehensive analysis of the term see the decision of Justice Sackville in Minister for Immigration and Ethnic Affairs v. Respondent A and Ors Federal Court of Australia New South Wales District Registry General Division. No.NG 327 of 1994.

13. Ward v. Canada (Minister of Employment and Immigration) [1993] 2 S.C.R. 689.

14. See also dissenting opinion of La Forest J (who set forth the general guidelines for determining “particular social group” in Ward, ibid) in the decision of Chan v. Minister of Employment and Immigration Supreme Court of Canada decision of 19 Oct. 1995 at para.83: “only a working rule was enunciated in Ward, not an unyielding deterministic approach to resolving whether a refugee claimant could be classified within a particular social group. The ‘general underlying themes of the defence of human rights and non-discrimination.’ were to remain the paramount consideration in determining a claimant's membership in any particular social group.”

15. Ward. idem, para.77.

16. Ibid.

17. The issue of women who fear persecution because they have violated the social mores of the society in which they live has been addressed by the European Parliament and the Executive Committee of the UNHCR. Both call for such women to be recognised as a “particular social group”: see Resolution of the European Parliament. 13 Apr. 1984 (1984) O.J. C127/137 (14 May) and UNHCR EXCOM Conclusions No.39 (XXXVI)(1985).

18. Religion, nationality and political opinion are also characteristics that are shared by large numbers of people.

19. GA Res.217(111).

20. U.K.T.S. 6 (1977) Cmnd.6702.

21. Ibid.

22. GA Res.34/180. GAOR 34th Sess. Supp.46. p.193.

23. U.K.T.S. 101 (1967) Cmnd.3449.

24. U.K.T.S. 59 (1958) Cmnd.601.

25. Members should also be familiar with the UNHCR Executive Committee Guidelines on the Protection of Refugee Women.

26. The Canadian Immigration Act R.S.C. 1985 incorporates the Convention definition of “refugee”.

27. This is in line with UNHCR Handbook, op. cit. supra n.11, at para.65: see also Ward, supra n.13.

28. C.R.D.D. No.U92–08714. Maraj and Shuter, 4 June 1993.

29. Cheung v. Canada (Minister of Employment and Immigration) (1993) 19 Imm.L.R. (2d)81.

30. T93–12197/12198/12199—Ramirez, McCaffrey 13 July 1994.

31. Litvinov v. Secretary of Stale of Canada Decision of Federal Court of Canada. 30 June 1994.

32. Immigration Judge Nejelski in Arlington, Virginia granted political asylum to a Jordanian woman on the grounds that her government failed to protect her from her husband's physical assault, reported in New York Times, 27 May 1995.

33. For further discussion of State responsibility to victims see Ariel Sallows Lecture 1994, “Men. Their Rights and Nothing More; Women, Their Rights and Nothing Less”, delivered by the author at the University of Saskatchewan. 14 03 1994 and printed in (1994) 58(1) Sask.L.Rev. 217Google Scholar: also Wallace, R. M. M.. “Ward v. Canada: A Glimmer of Hope for Victims of Domestic Violence” (1995) 4 Juridical Rev. of Scotland 390.Google Scholar

34. Note e.g. [1993] C.R.D.D. No.145 Howson and Griffith. 30 Aug. 1993 in which the applicant was denied Convention refugee status on the ground that although Israel previously had not afforded protection against spousal abuse this was no longer the case and consequently the applicant was unable to demonstrate an ongoing fear of persecution.

35. Estimates are that 98% of Somali women have undergone FGM: Somalia, Women's Human Rights, Human Rights Internet (HRI) Occasional Paper Series. Apr. 1994.

36. Mohamed v. Secretary of State of Canada Decision of Federal Court of Canada. 14 Feb. 1994.

37. “INS Distributes New Asylum Gender-Based Guidelines”. News Release. US Department of Justice (INS), 26 May 1995. See also Wallace, R. M. M., “Considerations for Asylum Officers Adjudicating Asylum Claims from Women: American Guidelines” (1995) 9 Imm. and Nat.L. and P. 116.Google Scholar

38. INS Commissioner Doris Meissener, Washington Post, 27 May 1995. Note however decision of 25 Aug., 1995 in which INS Judge Ferlise (Philadelphia, Penn.) denied that the imminent threat of genital mutilation constituted “persecution” for the purposes of Convention refugee status. The case was appealed to the Board of Immigration Appeals and a decision is anticipated in the summer. Case of Fauziya Kasinga reported in the independent. 6 May. 1996. Cf Decision of INS Judge Nejelski, (Arlington, Virginia) in August 1995 who when granted political asylum to a woman from Sirra Leone held that “Forced female genital mutilation clearly merits being recognised as a form of persecution.” Reported in ASIL, Human Rights Interest Group Newsletter. Vol.6. No.1 at p.7.

39. 1993 H.R. 1133.

40. “Communication Respecting the Violations of Human Rights of Haitian Women”, Organisation of American States Inter-American Commission on Human Rights.

41. Case of Re:—, Krome (B.I.A., 25 May 1993).

42. The Secretary of State for the Home Department (Appellant) v. Fatemah F. Ranjbar (Respondent) Immigration Appeal Tribunal. Chairman R. E. Maddison. Determination notified 28 June 1994 (unrep.).

43. Ibid.

44. The respondent's representative did not support the definition of the social group adopted by the adjudicator and advanced the relevant social group as “Those who due to their socially weak position are without the opportunity to apply for protection of the authorities.”

45. “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”: Art.33. Geneva Convention Relating to the Status of Refugees.