INTERNATIONAL HUMANITARIAN AND REFUGEE LAW

Tutorial III Submission On:

THE ABSENCE OF GENDER-RELATED CLAIMS IN THE
1951 REFUGEE CONVENTION AND ITS EFFECTS.
SUBMITTED BY:-
RUSHI SREEDHAR KUNKUPUDI
B.B.A. LLB
ROLL NO: - 358
CLASS: - D
SYMBIOSIS LAW SCHOOL, HYDERABAD
SYMBIOSIS INTERNATIONAL UNIVERSITY, PUNE
IN
OCTOBER 2019
UNDER THE GUIDANCE OF
PROF. AMISH ABDULLAH

CERTIFICATE

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 The project entitled “THE ABSENCE OF GENDER-RELATED CLAIMS
IN THE 1951 REFUGEE CONVENTION AND ITS EFFECTS” submitted
to the Symbiosis Law School, Hyderabad for International Humanitarian Law,
as part of Internal Assessment is based on my original work carried out under
the guidance of Prof. Amish Abdullah. The Research work has not been
submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the research
paper has been duly acknowledged.

I understand that I myself would be held responsible and accountable for

plagiarism, if any, detected later on.

RUSHI SREEDHAR KUNKUPUDI

Signature of the Candidate

Date: 07/10/2019.

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 ACKNOWLEDGEMENT
I would like to express my sincere gratitude and indebtedness to
Prof. Amish Abdullah for his enlightening lectures on International
Humanitarian Law. I would also like to express my sincere gratitude to our
teaching staff for guiding me the path towards gaining knowledge. I would
also like to thank Symbiosis Law School, Hyderabad, and the library for
the information therein provided. I would like to thank Library Staff as
well for their co-operation.

Name: Rushi kunkupudi

Roll no.16010324358

INDEX

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 PARTICULARS PAGE NO.

INTRODUCTION 5

GENDER -- A NEEDED CATEGORY 5-8

FOR WELL-FOUNDED FEAR OF
PERSECUTION?

THE PREDUJICE IN LAW BETWEEN 8-10

MEN AND WOMEN IN GENDER-
RELATED PERSECUTION.

HOW DO COURTS INTERPRET THE 10-13

GENDER-RELATED CLAIMS UNDER
THE 1951 REFUGEE CONVENTION?

“SPECIAL STATUS” FOR WOMEN TO 13-14

CLAIM ASYLUM AS A REFUGEE- THE
PRACTICALITY AND ITS EFFECTS.

CONCLUSION 15

REFERENCES 16

INTRODUCTION
“Worldwide, an estimated 35% of women have experienced family or domestic violence and
in some countries the figure is almost up to 70%. However only those who meet the

4
definition of a refugee can make a valid claim for asylum. The International Refugee
Convention of 1951 defines a “Refugee” as a person outside their countries or fleeing to the
other countries due to the fear of persecution on account of race, religion, nationality and
membership in a particular social group or political opinion. Gender-related persecution has
been since disregarded as “relatively trivial and frivolous” in contrast to traditional grounds
of persecution. Even though gender-related persecution claims are included under the present
refugee convention, thousands of women and men are still facing problems in seeking asylum
in different countries. Gender is not the same as “sex”, which can be biologically defined.
Rather, gender is a concept often used to define or refer to those particular characteristics of
women and men which are socially determined and not biologically. The term ‘gender”
emphasises that, putting aside the sexually distinct functions such as childbearing and rearing,
each and everything men and women do and is expected of them change over time and
changing developments, political, social and economic factors. Historically, the definition of
refugee has been interpreted through the experiences men had gone through amidst violence,
neglecting the claims of women and homosexuals. The 1957 Convention and its 1967
Protocol relating to status of Refugees clearly state that it is true that gender is not
specifically referenced in the definition of a refugee, yet it is widely accepted that it can
influence, or dictate, the type of persecution or harm suffered and the reasons for this
treatment. And hence the refugee definition, properly interpreted, therefore covers all gender-
related claims. As such, there is no need to add an additional ground to the convention
definition. But yet there were cases that have happened as of 2017 like Rahaf Mohammed
and Dani Ali where they had clearly stated that there is an imminent threat to their lives and
that established that there is well-founder fear of persecution, these cases were handled
lightly, resulting in the failure of “interpreting the gender-related claims” even if it’s not a
part of the definition.”

GENDER -- A NEEDED CATEGORY FOR WELL-FOUNDED FEAR OF

PERSECUTION?

“The UNHCR defines refugee as “A person who has been forced to flee his or her country
because of persecution, war or violence. A refugee has a well-founded fear of persecution for
reason of race, religion, nationality, political opinion or membership in a particular social
group. Such persons, most likely, cannot return home or are afraid to do so.” 1 Whenever a

1
https://www.unrefugees.org/refugee-facts/what-is-a-refugee/

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war or violence breaks out in a country, casualties are supervened, in the form of deaths,
displacements, destructions of cities, and thousands fleeing the country trying to seek asylum
in safer countries. Seeking asylum as a refugee has few criteria’s to be followed:”

 Well-founded fear of persecution

 For reasons of race, religion, nationality, membership in any social group or political
opinion.

“Though this definition and criteria helps the host countries in receiving refugees according
to guidelines established by the convention, it has still failed to protect the human rights of
many. Not only is race, religion, nationality, membership of any social group or political
opinion the reasons for a person to feel a well-founded fear of persecution, there are many
other reasons, that force a person to leave his/her country, under the same “well-founded fear
of persecution”. Gender is one of the many reasons, a person leaves his or her country and
seek asylum. One would argue, stating that gender being a separate criterion associated to
well-founded fear of persecution is absurd and is unprecedented for. There is another general
assumption that gender as a criterion means exclusively addressing the experiences of
women, who are subjected to unequal rights, resources, and political power and other social
and cultural factors. Gender is not the same as “sex”, which can be biologically defined.
Rather, gender is a concept often used to define or refer to those particular characteristics of
women and men which are socially determined and not biologically. The term ‘gender”
emphasises that, putting aside the sexually distinct functions such as childbearing and rearing,
each and everything men and women do and is expected of them change over time and
changing developments, political, social and economic factors. Gender has never been a party
of the dominant interpretation of the 1951 Convention on Refugees as it was not listed as a
ground that one could use to claim asylum. But gender can play a very crucial and important
role in forming experiences of persecution. It has been recorded in many countries where
women have been subjected to the same kind of treatment and harm as that of other refugees.
Most of the time they are targeted because either they are community organisers, political
activists, members of women’s movements or persist in demanding that their rights or those
of their relatives or community members are respected. However, women face a completely
different dilemma and often differ from men because women’s activism, resistance and
political protests often result in different scenarios. For example,”

 “Women may hide people or act as secret messengers or provide community services

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 Women can be targeted as they are more vulnerable, like young girls that can be exposed
to sexual abuse or caring responsibilities
 Authorities in few countries that exploit or use family relationship to their advantage and
intensify harm
 Women who may be persecuted by their community or family members
 And women who do not conform or accept to the moral or ethical standards imposed on
them in a community or family and as a result is subjected to cruel or inhumane
treatment.”

“Where do women subjected to such atrocities seek asylum as neither of their concerns meet
the criteria needed to be a refugee. And there two main reasons as to why women are unable
to benefit equitably from protection under the convention:”

1. “Procedural and evidential barriers that prevent women’s access to the asylum
determination process;
2. In interpreting the Refugee Convention, women’s experiences have been marginalized.
For example, whilst overt expression of a political opinion through conventional means
such as involvement in political parties may be considered as a basis for political asylum,
less conventional forms of political resistance, such as refusal to abide by discriminatory
laws or to follow prescribed rules of conduct, are often wrongly categorized as ‘personal
conduct’.2”

“Furthermore, the law makers may ignore the cultural and social restrictions and prohibitions
on women travelling alone or living separately, the ability of women to be independent and
survive economically without the support of her family in societies where women’s rights to
work are curtailed, or may face higher risks of exploitation, harassment and violence. Various
experiences of men as a gender being forced to migrate or are displaced are recognized across
a diversity of contexts. Same is the case for women, where gender acts as a catalyst and
connects with the facets of men’s identities and can manipulate their reasons to run away.
Though in general, there is no difference between women and men when it comes to laws
enforceable, these two genders are treated differently. Where women face complete
discrimination or are exposed to harassment and violence, men aren’t treated any less. Men
are most of the time forced into joining national armies or are recruited by non-state armed
groups to fight in wars and armed conflict. In the midst of war, men who are farmers or

2
http://www.refugeelegalaidinformation.org

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shepherds, loose their livelihood and end up poor and unable to provide for their family
which turns emasculating as it’s their duties as husbands, fathers and sons. Men are also
subjected to violence or are socially sanctioned if they don’t adhere to or have different views
to traditional norms and laws. But the most important and unheard experiences of these men
is sexual violence. In around 25 armed conflicts it has been reported that men have been
sexually assaulted to break their pride and make them feel less of a man. And because of that,
it becomes difficult for men to disclose such traumatizing experiences. At a lesser degree and
a slower pace, the experiences of sexual and gender minorities in conflict and refugee
contexts are slowly being recognized. Under Article 1A (2) of the 1951 Convention and the
1967 Protocol relating to the status of Refugees, the principle and definition of “Gender-
Related persecution” was established. This article mentions “gender-related claims may be
brought by either women or men but the claimant must establish that he or she has a well-
founded fear of persecution for reasons of race, religion, nationality, membership of a social
group and political opinion. But yet, there isn’t a clear definition and a definite established
guideline as to how one could claim asylum under well-founded fear of persecution.”

THE PREDUJICE IN LAW BETWEEN MEN AND WOMEN IN

GENDER-RELATED PERSECUTION.

“As mentioned in the UNHCR in its guidelines: “Gender-related persecution” is a term that
has no legal meaning whatsoever. Instead, it is used as an accessory to the range of different
claims that comes under the definition as is a relevant consideration in determining the
refugee status. In addition to it, classifying persecution as “gender-related” does not discharge
an applicant from the necessity to prove in every single case that all elements of Article 1(2)
of the 1951 convention are fulfilled 3. The year 1951 was decades ago, an age where laws
were drafted on the ideologies and experiences of men and not women. Yet in today’s
scenario, women being more vulnerable to violence, harassment and inhumane treatment, the
definition of refugee in the 1951 Convention stays old fashioned and misogynistic. Though
gender-related claims aren’t confined to only women, there are more applications of asylum
on those grounds. It is an established fact that even men are subjected to sexual violence or
forced labour and other atrocities of armed conflicts, but, women are treated differently.
Women face sexual violence, forced labour, violence, and other social discrimination in areas
of armed conflict and non-armed conflicts.”
3
Andreas Zimmermann, Claudia Mahler, The 1951 Convention Relating to the Status of Refugees and its 1967
Protocol: A Commentary, Oxford Commentaries on International Law (27 January 2011).

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“There are many other acts of violence or harassment that amount to persecution or well-
founded fear of persecution that does not come in the ambit of Article 1(2) such as

 Sexual violence
 Domestic violence
 Female genital mutilation
 Trafficking
 Physical violence
 Forced abortion
 Honour killings and maiming
 Harmful traditions that may harm women
 Forced marriages
 Other prohibited persecutory practices condoned by relevant states
 Patterns of gender discrimination and less favourable treatment, including failure to
extend protection to individuals subjected to gender related abuse, or treatment
amounting to socio-economic violence.”

“In addition to establishing a well-founded fear of ‘serious harm’, a woman must also show
that the state has failed to protect her. A failure of state protection exists if serious harm has
been inflicted by the authorities, or has been committed by others and is unwilling to give
effective protection. Women in particular may be subject to gender-related violence resulting
from social customs or conventions because there is no effective means of legal recourse to
prevent, investigate or punish such acts. Such failure of state protection may occur but is not
limited to, legislation, lack of police response, refusal or failure to investigate, prosecute or
punish individuals and encouragement or toleration of particular practices and behavioural
norms or an unwillingness or inability to take action against them4.””“

“It is often noticed that, women applicants, victims of gender-related violence, fail to
substantiate their allegation that they would face a concrete risk of being subjected to
violence if expulsed indicating that the threshold which applicants must surpass in order to
establish a real risk of persecution has also been compounded by issues concerning credibility
assessment of applicants, i.e. whether or not an applicant’s case is believed to be true. Proper
interpretation of the Refugee Convention means taking account of the ways in which gender
may shape the applicant’s experiences when assessing whether or not an individual is in need

4
http://www.refugeelegalaidinformation.org

9
of international protection. This means establishing whether an applicant fears or has
experienced ‘serious harm’, whether there is a failure of State protection and whether an
applicant’s experiences are directly related to one of the grounds enumerated within the 1951
Refugee Convention.””

HOW DO COURTS INTERPRET THE GENDER-RELATED CLAIMS

UNDER THE 1951 REFUGEE CONVENTION?

“Most of the countries, around 140 of them signed in the 1951 Refugee Convention and all
of them agreed to follow the guidelines as host countries. Yet, not all member states
recognise women as members of a particular social group or any other interpretation as per
the definition under the convention. In the past, UK had been very restrictive in its
interpretation of ‘members of a particular social group’. In its most recent guidelines, UK
Courts adopted an interpretation in respect of certain countries in line with the Refugee
convention, CEDAW and Istanbul Convention. In the case of Shah and Islam, the House of
Lords held that women in Pakistan constituted a particular social group because they share
the common immutable characteristics of gender, they were discriminated against as a group
in matters of fundamental human rights, and the state gave them no adequate protection
because they were perceived as not being entitled to the same rights as men5. However in
respect to Albania, where it has been recognised by the UK that “domestic violence in
Albania is a serious widespread problem, with a recent survey showing that some 53% of
women has experienced domestic violence within the last 12 months”. UK clearly outlined
that “women at risk of domestic violence in Albania are not considered to form a particular
social group within the meaning of the 1951 UN Refugee Convention. This is because
although they share an immutable (or innate) characteristic – their gender – which cannot be
changed, and although traditional views of their subordinate position in society are still
prevalent in parts of the country, in general, in view of their equality under the law and the
general availability of state protection against domestic violence, they are not now perceived
as different and do not have a distinct identity in Albanian society”6.”

“In the French asylum jurisprudence, the approach of ‘social perception’ is firm entrenched.
Compared to the UK, the French courts have been criticised for adding criteria not required

5
United Kingdom: Home Office, Country Information and Guidance - Pakistan: Women fearing gender-based
harm / violence, February 2016, Version 3.0.
6
United Kingdom: Home Office, Country Information and Guidance - Albania: Women fearing domestic
violence

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under international law. In the case of Mme G7, it was held that because the applicant lacked
an external manifestation of her sexual orientation common to the “particular social group”
she claimed to be a part of, her claim must fail for not meeting the requirement of social
visibility. There have been additions to the definition of the group where it must be
restrictively defined and sufficiently identifiable, based on concern for unlimited expansion
of the social group ground. Even in the most recent of cases, in respect of women trafficked
from Nigeria; the particular social group is defined restrictively as: Nigerian women of the
Edo state, that are victims of trafficking, that have been exposed to “juju” rituals, and that
subsequently escaped the operating system of the traffickers. The UNHCR has expressed in
the past that approaches which conflate the two elements, go beyond what is required under
the “social perception” approach, and accordingly could result in the deprivation of refugee
status to persons who are entitled to claim it8.”

“Greek courts have also joined the circle and have accepted women or a particular category
of women as forming a particular social group. In 2011, citizenship was granted to an Iranian
Woman who fled Iran due to her life following systematic domestic violence by her husband.
Her husband also filed criminal charges against her for ‘moharebeh’ (enemy of god), due to
her atheism, her political beliefs as well as for adultery and abduction of their child. The
committee recognised that the applicant had a well-founded fear of persecution. It was
concluded that her status as a victim of domestic violence and the lack of protection by the
Iranian state constituted a “form of gender persecution because these acts were an affront to
human dignity and bodily integrity”. It found that the Iranian law’s provision which allowed
flogging or stoning as acceptable forms of punishment meant the applicant faced a severe
form of persecution which was unacceptable in light of the prohibition against torture or
inhuman or degrading treatment. Yet the applicant’s initial application was contrasting and
was rejected on the grounds that she did not meet “the necessary subjective and objective
elements of a well-founded fear of persecution” for lack of evidence of personal persecution
by Iran based on her race, religion, nationality, social class or political beliefs 9. In another
case10, an Ethiopian woman applied for asylum, was expelled from her country due to her
mother’s Eritrean nationality, was forced to work for a family as a maid for free, without
medical care and education. She was also sexually abused by the male members of the family

7
Mme. G Commission des Recours des Refugies (CRR), 04039953/513547 C+, 25 March 2005.
8
Décision No. 10012810, 24 mars 2015, France: Cour nationale du droit d’asile.
9
Case 95/126761, Second Special Refugee Committee, 2011.
10
Case 4/7788365, Refugee Committee of Byronas, 2013

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and wasn’t allowed to leave the house. Initially, her application was rejected on the same
grounds. But on appeal, the Refugee Committee considered the applicant to be a part of the
distinct social group of single Ethiopian women and recognised her status as a refugee. It
compared the applicant’s claims to reports by international organisations on the situation in
Eritrea and Ethiopia: these confirmed the strained relations between Eritrea and Ethiopia, the
persecution of citizens with national origin from the other country as well as the high
percentages of sexual manipulation of underage girls in these countries and their
victimisation by human traffickers. The Committee found both a subjective element of fear,
taking into account the length of the applicant’s absence from her country of origin, her lack
of family, her removal from the country through trafficking, and an objective element of fear
given the social stigmatisation of single women in Ethiopia, the danger of human trafficking
and the difficulty in recognising the applicant’s national origin.”

“However, proving that one is a member of a particular social group is not straightforward.
For example, the Greek Council of State in a case that was also from Ethiopia 11 held that:
“female victims of human trafficking that are in danger of facing violence by non-
governmental entities…are protected as refugees if, among other things, it is determined that
they are deemed members of a particular social group, they fear persecution due to their
participation in this group and the authorities of their country of origin are not in a position
or are unwilling to provide protection”. The applicant in that case, had argued that she was a
victim of human trafficking and that she had been “sold” by her father to an unknown person
for his sexual use and forced into working as a house maid for twelve year. She pleaded that,
upon return to Ethiopia, she would be in danger of psychological and sexual violence by the
unknown person to whom she had been sold and that the Ethiopian authorities were unable
and unwilling to provide protection to victims of human trafficking. The court found that the
applicant’s claims were neither substantiated nor credible, and also that they were not
substantiated by UN reports concerning human trafficking and the situation in Ethiopia.”

“SPECIAL STATUS” FOR WOMEN TO CLAIM ASYLUM AS A

REFUGEE- THE PRACTICALITY AND ITS EFFECTS.

“In the year 1985, the UNHCR Executive Committee called on all States to work towards fair
and appropriate treatment of refugee women and “stressed the importance of a more detailed
knowledge and understanding of the special needs and problems of refugee women in the
11
Case: 119/2010, Greek Council of State, 2010.

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international protection field, and of gathering statistical, sociological and other data
concerning refugee women and girls in order to identify and implement appropriate
mechanisms to ensure their effective protection”. Guidelines on the Protection of Refugee
Women were first issued by UNHCR in 1991 and were followed in 1995 by guidelines
specifically on responding to cases involving sexual violence. In 2002, UNHCR updated its
guidelines to include explicit reference to the ways in which gender should be taken into
account when deciding whether an individual is in need of international protection. These
guidelines are intended to provide legal interpretative guidance for governments, legal
practitioners, decision-makers and the judiciary, as well as UNHCR staff carrying out refugee
status determination in the field. UNHCR has also issued guidelines on membership of a
particular social group, on the application of the Refugee Convention in cases involving those
who have been, or are at risk of being, trafficked, and in relation to Female Genital
Mutilation (FGM) that may of relevance in some claims involving gender issues.”

“To emphasise as to why gender-related persecution, especially women, is an important

category, is that there are various reported incidents where women were under the fear of
persecution and had tried to seek asylum but had failed or wasn’t given asylum. As it has
been established prior, women are subjected to violence and harassment both in an armed
conflict and in a non-armed conflict. In an armed conflict they are exposed and subjected t
being sexually abused or harassed or raped and killed. For an example, in the African
continent, each country boils with armed conflicts both cultural and ethical, and though men
are either killed, displaced or forced to join armies, women are either kidnaped to be ‘Bush
wives’ or sex-slaves and in most cases are raped and killed. In a non-armed conflict situation,
women are exposed to crimes such as domestic violence, female genital mutilation, being
repressed for their political opinions. The most suitable examples are women from Saudi
Arabia, North Korea, Syria and many other countries where women are subjected to such
crimes. Dina Ali Lasloom was a Saudi woman who had attempted to seek asylum in
Australia, but was detained in Manila. She had established the fact that her life was in danger
and that her own family would kill her, yet, she was forcibly taken by her uncles and was
never to be heard of again. Another iconic case was of Rahaf Mohammed who fled Saudi
Arabia while on vacation with her family, but was detained in Thailand on her way to
Australia. Through social media, she had urged the UNHCR to help her and give her asylum
which she got in Canada. Not only do Saudi Arabian women face these problems, North
Korean women have an even greater fear of persecution. Park Yeon-Mi, a North-Korean

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refugee who escaped North Korea with her mother explained the plight and harassment they
faced in a speech for the UN. According to various documentaries recorded on the reports of
refugees from North Korea, if women even watch romantic movies banned by the
government they would be persecuted and three generations of their family of would also be
persecuted. International phone calls were restricted and monitored and even they had a dress
code compulsion where they couldn’t cut their hair any way they want to, must wear
particular fashion and must not be way “too trendy”.”

“The main question that needs to be addressed is do women need a “special status” under
Gender-related claims to seek asylum. It is true that men also go through harassment and
sexual violence too, and due to their stigma and pride they don’t bring such atrocities to
notice. And it is unfair to claim that women need a “special status” to claim asylum. But
compared to men, women are more subjected to violence and harassment on a larger scale,
like being kidnapped and used as bush wives or ISIS brides or raped and killed or used as
forced labourers. It cannot be completely vouched to allow women to have a special status to
claim asylum, but a preference to their claims should be allowed. The burden of proof lies on
the woman to prove her claims. Though most host states follow this principle, women are still
deprived of claiming asylum and are sent back to their countries where there is imminent and
assured persecution. Hence, new developments and changes to 1951 convention needs to be
done to ensure that every person, whether man or woman, has their human rights respected.”

CONCLUSION

“In the absence of gender as an enumerated Convention ground within the Refugee
Convention means that there is considerable debate about how gender issues in the asylum
claim are dealt with under international law. It is important to understand that claims for
asylum based on gender can, more often than not, be properly recognised within the meaning
of the Convention if these experiences are properly understood within the social and political
context within which they occur. This is made clear in the international guidance on how to
interpret the Refugee Convention provided by UNHCR: “Even though gender is not
specifically referenced in the refugee definition, it is widely accepted that it can influence, or
dictate, the type of persecution or harm suffered and the reasons for this treatment. The
refugee definition, properly interpreted, therefore covers gender-related claims. As such,
there is no need to add an additional ground to the 1951Convention definition”. The lack of
reference to gender or sex in the refugee definition can pose obstacles for applicants, even
though the UNHCR has recommended that the refugee definition be interpreted as a whole
with an awareness of possible gender dimensions. It has specifically called upon all signatory
States to recognize that gender-related forms of persecution in the context of Article 1A (2)
of the 1951 Convention relating to the Status of Refugees may constitute grounds for refugee

14
status. But yet, many states have yet to recognise that gender related forms of persecution as
an category of well-founded fear of persecution. In conclusion, there is a need to revise the
definition prescribed under the 1951 Refugee Convention. Yes, it is essential to add Gender-
related claims as a ground to well-founded fear of persecution, because it is a valid ground
for both women and men who go through harassment, violence and emotional trauma. But
yet not all Gender-related claims can be used as a ground as it weighs heavy on both host
countries and the Convention itself. Therefore, adding Gender-related claims to the 1951
Refugee Convention would be a progressive development to International law and promote
the protection of human rights in good faith.”

RREFERENCES

WEBSITES:

 https://www.refworld.org
 https://www.unhcr.org
 https://www.refworld.org
 https://wave-network.org

JOURNALS:

 Protectors and victims in the gender regime of asylum- Connie G. Oxford

 Where are the women? Gender Discrimination in Refugee Policies and Practices- Nahla
Valji, Lee Anne de la Hunt and Helen Moffett.

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