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GENDER: Persecution in the Spotlight- by Judith Kumin In 1989 Mihai and Maria fled the brutal regime of Romanian strongman Nicolae Ceausescu, floating on inner tubes across the Danube River, before applying for refugee status at UNHCR’s Belgrade office. “I can’t find any grounds for recognition,” a troubled male colleague told me “but I think you should talk to the wife. I have the feeling she has something to say, but she won’t say it to me. She won’t even look at me.” Over a cup of coffee, out of earshot of her husband, Maria told a chilling story of humiliation and sexual abuse at the hands of Romania’s secret police, the Securitate, who were convinced her husband was involved in an underground opposition group, and were determined to get Maria to admit it. Soon after Maria’s interview, the couple were resettled to the United States. We have stayed in touch over the years, and I have often thought about how close we came to denying their application and handing them over to the Yugoslav police, who would, in turn, have returned them to the Securitate. When the fathers of the 1951 Convention —all men— drew up what would become the Magna Carta of international refugee law, they crafted a refugee definition which required a well-founded fear of persecution based on race, religion, nationality, membership of a particular social group, and political opinion. They did not deliberately omit persecution based on gender—it was not even considered. Although it was recognized that women may be refugees in their own right, in practice they had difficulty asserting claims. Often, wives were not given a chance to tell their own stories. Sometimes, like Maria, they hesitated to do so in front of male interviewers. Little thought was given to forms of persecution which might only affect women. Gender-based persecution started to surface in the 1980s, during the first U.N. Decade for Women. In 1984, the European Parliament passed what was then a revolutionary resolution, asking states to consider women who transgress religious or societal mores as a “particular social group” for the purpose of refugee status determination. Some critics saw this as western impingement on cultural traditions of nonwestern societies. Others felt it was too broad, and argued that persecution had to be personal and specific. In 1985, UNHCR’s Executive Committee adopted its first Conclusion on Refugee Women and International Protection, and in 1988, UNHCR organized its first Consultation on Refugee Women.
TURNING POINT
A handful of countries, led by Germany, still argue that, for an individual to be recognized as a refugee, the persecution feared must be perpetrated by the state, or by an agent of the state. But UNHCR, and the majority of asylum countries, insist that what is important is not who perpetrates the harm, but whether the state is willing and able to protect the victim. Another contentious issue is whether there must be malicious intent to harm the victim. This is particularly important in the context of traditional practices such as female genital mutilation, where it is certainly not the intent of the perpetrators to harm girls, even though it is widely accepted that the practice results in serious damage. Political opinion is a complex area. Women may be persecuted not only because of their own opinions, but also because of those of their spouses. Females can face discriminatory treatment because of religious strictures including travel, dress, or employment more often than men. But it is ‘membership in a particular social group’ which has generated the most debate. Though it is widely accepted that some women may be considered part of a ‘particular social group’ for the purpose of status determination, there is less agreement about how far that argument should go, in particular in connection with women who are victims of domestic abuse—the leading cause of injury to women worldwide. Must the state be unwilling to protect the woman? Or simply unable to protect her? How effective must state protection be? U.S. Attorney General Janet Reno grappled with these issues just hours before leaving office in January 2001. She subsequently ordered the Board of Immigration Appeals to review a 1999 decision to deny asylum to a severely battered Guatemalan woman who had sought protection in the U.S. from abuse by her former husband. A historic development came with the adoption in Rome in July 1998 of the Statute of the International Criminal Court which will adjudicate a broad spectrum of gender-related acts: rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization. In February 2001, the International Criminal Court for the former Yugoslavia handed down its first convictions of Bosnian Serb officers for rape as a crime against humanity. Fifty years after the Refugee Convention was adopted, it still contains just five
grounds for recognizing someone as a refugee. There have been suggestions that
a sixth ground—gender—should be added. But case law from around the world provides
ample evidence that gender-related claims can be handled within the framework
of the existing text. Gender-based persecution, and the persecution of
women in particular, has emerged from the shadows.
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