Gender-related persecution of refugee women - A feminist analysis of the persecution grounds of the refugee definition

University essay from Lunds universitet/Juridiska institutionen

Abstract: Like many other international human rights law instruments, the 1951 Convention relating to the Status of Refugees was written from a male perspective, which has resulted in that the refugee definition of the Convention historically has been interpreted through a framework of male experiences. For this reason, many asylum claims of female applicants have been ignored. In order to be granted refugee status, the applicant must show that the reason why he or she is at risk of persecution is related to one or more of the established persecution grounds: race, religion, nationality, political opinion or membership of a particular social group. A person who risks gender-related persecution, meaning persecution which is fully or partially based on notions of gender, must be able to show that the persecution in question can be considered to fall within the ambit of the persecution grounds. In the course of this, the persecution grounds must be interpreted in a gender-sensitive manner. This thesis examines the consequences of how the persecution grounds of the refugee definition are interpreted and applied to encompass gender-related persecution. This is done by investigating how gender-related persecution has been included in international and national law in the interpretation and application of the persecution grounds; how these instruments, in their approach to encompass gender-related persecution, correspond to each other; and which feminist critiques these legal instruments answer to or remain sensitive to. The research questions are divided into three categories. The first category concerns the legal examination of international and national law. The legal instruments that are examined are the 1951 Convention, CEDAW and the Swedish Aliens Act. The second category has to do with the correspondence between these legal instruments. The third category relates to how the law, in its interpretation and application of the persecution grounds, answers to and/or remains sensitive to different categories of feminist critique of refugee law identified by Thomas Spijkerboer. According to the UNHCR, the refugee definition of the 1951 Convention covers gender-related persecution if properly interpreted, even though “sex” or “gender” are not included as persecution grounds. The UNHCR also states that each of the persecution grounds must be considered in gender-related claims and that they all have to be interpreted in a gender-sensitive manner. Although all of the persecution ground may be applicable in cases where someone risks gender-related persecution, it is “membership of a particular social group” that often is applied to these cases, much due to the fact that women may be considered to constitute a social group within the meaning of the Convention. The statements of the UNHCR have been echoed by the CEDAW Committee. The Committee has also expressed that it is in accordance with CEDAW to add an additional ground, such as sex, into the national legislation in order to encompass gender-related persecution. In 2005, the term kön was included into the Swedish refugee definition in order to adapt the Swedish Aliens Act to the international interpretation of “membership of a particular social group”. Swedish preparatory works also echo the statements of the UNHCR. They explicitly state that all of the persecution grounds, and not only “membership of a particular social group”, may encompass gender-related persecution and that they all should be considered, in no particular order, when an applicant claims that he or she is at risk of persecution for reasons of kön. However, the intentions of the legislator have not been followed by the Migration Court of Appeal. The Court only considers kön under “membership of a particular social group” in cases involving gender-related persecution and does not bring up the potential relevance of the other persecution grounds. Hence, the Swedish judicial application of the persecution grounds is not in accordance with the Aliens Act, the 1951 Convention and CEDAW. This thesis also shows how the interpretation and application of the persecution grounds can be criticised from a feminist perspective. The interpretation and application of the persecution grounds of the 1951 Convention and the Aliens Act and the obligations identified by the CEDAW Committee mostly answer to the human rights approach, since the ground “membership of a particular social group” has been emphasised and there is a tendency to highlight the cultural context from which refugee women come. This approach is sensitive to the anti-essentialist critique, which means that the emphasis that is given to “membership of a particular social group” leads to a reinforcement of the view that only men can be considered as “real refugees” and sustains the stereotype that the persecution grounds that are not explicitly “gendrified” are meant for male applicants. The anti-essentialists opposed the emphasizing of the cultural context because it demonises the Third World and reproduces the distinction between the Western and the non-Western countries. However, there are indications of that there is a movement towards a more anti-essentialist thinking, especially within the CEDAW Committee. This, since the emphasis that has been given to the ground “membership of a particular social group” in gender-related claims has been recognised as being problematic.

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