Women and girls fleeing conflict face serious obstacles to presenting successful claims for status under the 1951 Refugee Convention. This is the conclusion of a study I prepared for the United Nations High Commissioner for Refugees (UNHCR) for a roundtable in Cape Town, South Africa on “International Protection of Persons Fleeing Armed Conflict and Other Situations of Violence”. The Summary Conclusions of this roundtable are meant to inform the drafting of future guidelines to clarify the interpretation and application of international and regional refugee law instruments to persons fleeing armed conflict and other situations of violence across international borders.
My study examined cases arising in Australia, Canada, New Zealand, the United Kingdom and the United States between 2004-2012 in which women or girls sought refugee status after fleeing conflict. These cases involve claimants fleeing from Afghanistan, Angola, Bosnia-Herzegovina, Burundi, Chad, Colombia, Côte d’Ivoire, the Democratic Republic of the Congo, Ethiopia, Guinea, Iraq, Palestine, Republic of Congo, Rwanda, Serbia, Somalia, Sri Lanka and Uganda. These cases revealed that women and girls fleeing conflict tend to face four general barriers to their refugee claims.
The first barrier arises in the consideration of conflict-related rape and other forms of sexual violence as forms of persecution. The Refugee Convention requires that refugee claimants possess a well-founded fear of a form of harm that qualifies as persecution. Unfortunately, some refugee adjudicators do not adequately consider the environment surrounding rape in conflict, inaccurately characterizing this rape as a matter of personal sexual gratification or as a private act (and therefore not persecutory), rather than as a method of dominating or terrorizing civilians. Additionally, gender-related violence may be incorrectly classified as part of the indiscriminate consequences of conflict – and therefore not targeted enough at the claimant to amount to past persecution or to present a risk for future persecution – even though a deeper examination may reveal that the victims’ gender informed the method of attack.
Under the Refugee Convention, only those who can demonstrate a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” can qualify as refugees. A second set of obstacles is found in the consideration of the Refugee Convention grounds: claims by women and girls fleeing conflict tend to be funnelled into “membership of a particular social group”, even though other categories may be more applicable because of the nature of the conflict. This results in a tendency for refugee decision-makers to create artificial sub-groups of women in order to evaluate whether claimants fit within those groups, leading to unecessarily narrow reasoning.
A third set of obstacles arises within the consideration of state protection. The cases revealed examples in which this analysis was not done in a gender-sensitive manner with a full appreciation of the nature of the conflict. This was especially so when adjudicators were considering the “end” of the conflict: a cease-fire or peace agreement does not necessarily mean the end of persecution of women and girls.
A fourth set of obstacles is found in procedural and evidentiary matters. For example, claimants and refugee decision-makers are hampered by lack of access to gender-sensitive country of origin information demonstrating the situation of women and girls before, during and following the conflict.
These barriers have been recorded before with respect to “peacetime” claims by women and girls, but the difficulties seem to be compounded or especially prevalent in conflict-related cases. The specific issue of barriers faced by female refugee claimants fleeing conflict has received little focused attention, therefore this study is necessarily preliminary in nature. Please feel free to contact me at email@example.com if you have any relevant cases or studies to share on female refugee claimants who have fled conflict.