|
Under International Law, a refugee
is defined as a person with a "well-founded fear of persecution"
for reasons of race, religion, nationality, political opinion, or
membership in a particular social group. Based on this language,
the refugee definition is commonly understood to include three essential
elements:
(1) there must be a form of harm
rising to the level of persecution, inflicted by a government or
by individuals or a group that the government cannot or will not
control;
(2) the person’s fear of such
harm must be well-founded — e.g. the U.S. Supreme Court has
ruled that a fear can be well-founded if there is a one-in-ten likelihood
of its occurring;
(3) the harm, or persecution, must
be inflicted upon the person for reasons related to the person’s
race, religion, nationality, political opinion or membership in
a particular social group (the nexus).
The international definition of "refugee"
has been interpreted primarily in the context of male asylum-seekers,
to the prejudice of women refugees. The
claims of women asylum-seekers often differ from those of men in
several respects. First, women often suffer harms which are either
unique to their gender, such as female genital mutilation or forcible
abortion, or which are more commonly inflicted upon women than men,
such as rape or domestic violence. Second, women’s claims differ
from those of men in that they may suffer harms solely or exclusively
because they are women, i.e., as a result of their gender. And third,
women often suffer harm at the hands of private individuals (e.g.
"honor killings"), rather than governmental actors.
The distinctions between the more
traditional claims of male asylum seekers, and those of women, have
often adversely impacted women asylum-seekers. Decision-makers often
fail to recognize that harms unique to women — such as forced
marriage or honor killings — may constitute persecution. They
are also resistant to the developing jurisprudence which recognizes
that harms inflicted primarily because of gender may come within
the protection of international or domestic refugee law, and that
persecution at the hands of private actors can form the basis of
refugee protection where there is a failure of state protection.
These developing international human
rights and refugee norms provide a basis for extending protection
to women asylum-seekers regardless of the distinctions between their
claims and the more traditional claims of male applicants. The United
Nations High Commissioner for Refugees (UNHCR) has provided guidance
in cases of women asylum-seekers. Notwithstanding these developments,
the claims of women asylum-seekers continue to meet denials due
to erroneous interpretations of the refugee definition by decision-makers,
as well as a fundamental lack of understanding of the applicable
human rights norms and the relevant country conditions.
|
