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INTERNATIONAL ASSOCIATION OF REFUGEE LAW JUDGES (IARLJ) Inaugural Meeting IARLJ Australia/New Zealand Chapter - 10 March 2000 CONTEMPORARY GENDER ISSUES IN THE REFUGEE CONTEXT Hon Justice Dame Silvia Cartwright, High Court of New Zealand

INDEX

Introduction

Human Rights Context

Female and Male Refugees: Are There Are Differences

Future Trends in Refugee Populations

Introduction

[1] While many attending this Conference will have a depth of knowledge concerning refugee law which greatly exceeds mine and will have considered the particular issues surrounding women refugees, it is nonetheless important to examine refugee law principles in the broad context of women's human rights as they have developed in the last two decades.

The Human Rights Context

[2] In his text 'The Law of Refugee Status' Hathaway, while acknowledging that the use of a human rights standard for determining the existence of persecution is not universally accepted says "the dominant view, nevertheless, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard". Since the end of the Second Word War the worlds' nations have routinely negotiated, quibbled over language and ultimately adopted instruments which have set these standards. Those which remain the most influential are comprised in the International Bill of Human Rights: The Universal Declaration of Human Rights1, the International Covenant on Economic Social and Cultural Rights2 and the International Covenant on Civil and Political Rights3. In 1948 it was a remarkable step for nations which were gender blind to include "everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as...sex ...". It is unfortunate that Eleanor Roosevelt who is credited with insisting on the inclusion of sex as a prohibited ground for discrimination was not part of the negotiating team which drew up the Convention relating to the Status of Refugees adopted just two years later. By 1966 when the twin covenants on Economic Social and Cultural, Civil and Political rights were being drafted each specifically refers to the undertaking that States Parties would ensure "the equal fights of men and women to the enjoyment of all the rights set out in those instruments". The Refugee Convention stands out therefore as anomalous in its omission of sex or gender as a standard against which refugee status can be measured.

[3] In the 50 years since the Universal Declaration of Human Rights was drafted there has been a sea change in attitudes to women's human fights. At the Vienna World Conference on Human Rights4 in June 1993 the international community acknowledged that the body of international law and the mechanisms established to promote and protect human fights had not taken into account the concerns of women who represent over half the worlds population. States recognised formally that the human rights of women are "an inalienable integral and indivisible part of human rights". Later that year the United Nations General Assembly adopted the Declaration on the Elimination of Violence Against Women5. The Declaration categorised such violence as an issue of human rights generally and of sex discrimination and inequality in particular. In March 1994 the United Nations Commission on Human Rights appointed its first Special Rapporteur on Violence Against Women, Its Causes and Consequences6 and later that year at the International Conference on Population and Development in Cairo7 States emphasised the importance of the right to health including reproductive choice for women. Finally, in 1995 in the Beijing Declaration and Platform for Action8 adopted at the United Nations Fourth World Conference on Women, the rights of women and the girl child were reaffirmed as an alienable, integral and indivisible part of all human rights and fundamental freedoms. The Beijing Platform for Action in particular emphasised the human rights implications of violence against women and paid particular attention to violence against women perpetrated in armed conflict and the violation of women's human rights resulting in refugee flows. It noted the vulnerability of refugee women to further violations of their human rights.

[4] It is within this context therefore that many States, working to apply the provisions of the Refugee Convention, have recognised the singular nature of the violations of the rights of women refugees. Refugee women have in some instances been categorised as a particular social group for purposes of refugee status determination. As long ago as 1984 the European Parliament determined that women fearing cruel or inhuman treatment as the result of seeming to have transgressed social mores, should be considered a "social group" within the meaning of the Refugee Convention. And in 1985 the Executive Committee of the High Commissioners Programme (EXCOM) specifically acknowledged that in appropriate circumstances, women may be considered a "particular social group" within the scope of refugee definition. The following resolution was adopted:

"... States, in the exercise of their sovereignty, are free to adopt the interpretation that women asylum-seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they live may be considered as a "particular social group" within the meaning of Article 1A(2) of the 1951 United Nations Refugee Convention".

[5] And in 1995 a general conclusion on international protection was adopted by the Executive Committee of the High Commissioner's Programme calling:

"... Upon the High Commissioner to support and promote efforts by States towards the development and implementation of criteria and guidelines on responses to persecution specifically aimed at women, by sharing information on States' initiatives to develop such criteria and guidelines, and by monitoring to ensure their fair and consistent application. In accordance with the principle that women's rights are human rights, these guidelines should recognise as refugees those women whose claim to refugee status is based upon well-founded fear and persecution for reasons enumerated in the 1951 Convention and the 1967 Protocol, including persecution through sexual violence or other gender related persecution."

[6] These new criteria in refugee status determination have been incorporated into guidelines by some States: notably Canada, Australia and the United States of America. In the light of these developments in the appreciation of issues concerning women's human rights it is nonetheless helpful to examine where the differences between women and men refugees might lie.

[7] This early appreciation that there might be some distinction between men and women in the realisation of their human rights developed into a strong movement by women in civil society during the decade following the drafting of ICESCR and ICCPR and culminated in the drafting of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)9. By the time this Convention (often known as the Women's Convention) came into force in 1981, there was a much better understanding of the multitude of ways in which women's human rights can be affected in situations when men would not suffer discrimination. The Convention set certain standards which ratifying States are obliged to meet but also contains a number of articles which enable States to take appropriate measures to achieve the elimination of discrimination against women in fields such as public and political life, education, employment and health. Perhaps because such programmatic provisions were seen as not justiciable but more likely because the States Parties engaged in drafting this Convention did not wish to impose upon themselves a system by then available under the ICCPR of ensuring compliance by means of an Optional Protocol to the Convention, the Women's Convention had no communications procedure or enforcement measures, such as those in the Convention on the Elimination of All Forms of Racial Discrimination10 and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment and Punishment11. It is also very likely that the Women's Convention is the second most highly ratified human rights treaty in the United Nations system after the Convention on the Rights of the Child, simply because it did not until 1999 have any means of ensuring States' compliance with it. The Optional Protocol to the Convention has now been adopted and opened for accession, signing and ratification. As at January 2000 24 States had signed the Protocol and a number had notified their intention of ratifying it in the near future. When 10 instruments of accession or ratification are lodged with the Secretary General of the United Nations the complaints mechanism will come into force.

[8] The Refugee Convention, therefore, in recognising only race, religion or country of origin as grounds upon which discrimination is prohibited by contracting States, does not therefore comply with the standards set in the International Bill of Human Rights. I will leave to others the assessment of whether it is either necessary or even advantageous to attempt to amend the Refugee Convention, recognising immediately that there may well be greater disadvantages were the topic of States' obligations to refugees to be revisited even for the innocuous purpose of ensuring that sex was included as a prohibited ground of discrimination.

Female and Male Refugees: Are There Any Differences

[9] New Zealand has largely been unaffected by the huge movements of refugees which occur as the result of internal displacement due to civil war, the fleeing from a war torn country to a foreign State and the forced movement of civilian populations as the result of trafficking or "ethnic cleansing". Refugee populations will often be notable for their very high proportions of women and children. Broadly speaking, adult males tend to be underrepresented in refugee populations. They may be fighting in an army or rebel group, engaged in other activities such as farming, working or trading, or visiting their country of origin to prepare for the repatriation of their family members. Where there are large numbers of young men in refugee settlements, such as those in States bordering Rwanda following the exodus of the Hutu, there will be a high incidence of violence, including sexual violence and other forms of anti social behaviour. These men live aimless lives deprived of education, recreation and the opportunity to engage in productive activity. Often they will be socialised towards violence because of their experiences during a time of armed conflict. In these situations there is inevitably a high incidence of rape and sexual violence.

[10] There are also huge numbers of urban refugees, one of the largest groups of which comprising 20,000 mainly Afghani lives in New Delhi. The demographic profile of urban refugees tends to show a dominance of young unaccompanied males with secondary or tertiary education, supporting the theory that able bodied men will head for towns to look for work leaving their dependants in refugee camps where there are some support systems. Women who are urban refugees find it much more difficult to establish independent livelihoods. Often they have fewer marketable skills than their male counterparts and are prevented or discouraged from working outside the home. They also have children to care for. In addition, the cultural and traditional taboos visited on these women in their own communities often make it impossible for them to find work.

[11] Where there is internal conflict the women and children will either flee first, leaving able bodied men to protect homes and property, or will be targeted as a means of terrorising and humiliating the local community. This trend was apparent in all the conflicts in the States of the former Yugoslavia and more recently in East Timor. One East Timorese civilian speculating on the fate of women and children taken away by pro-Indonesian militia during fighting is quoted as saying "If they are alive, we are happy. If they are dead, it's the price of a new country". It is obvious that whatever conflict situation they find themselves in, women and children are far less able to defend their lives and bodily integrity. They are more often less well educated, hampered by the need to care for the extended family and, of course, are not armed. They are easy targets.

[12] To add to the terrors facing women refugees is the phenomenon reported in a large number of countries where police and prison guards routinely inflict sexual abuse on their female captives in order to extract information from them and to intimidate the families' social groups and the political movements with which they are associated. A recent report from the Democratic Republic of the Congo where internal conflict has raged for years, confirms that 15 women suspected of spying for a rival group were buried alive. In addition border guards, police officers, military personnel and camp officials in countries of asylum have been known to exploit their positions of power by demanding sex from refugee women and girls and by forcing them into prostitution. At the same time refugees (both female and male) may find themselves at risk of sexual violence from members of their own communities, particularly in situations where established social structures and values have been undermined by conflict and displacement. The problem of sexual violence in the Somali refugee camps in northeast Kenya was highlighted in 1993 by a very large number of rapes apparently committed by both Somali bandits and local security personnel. Women refugees suffer both because the design and management of refugee community does not take into account the practical requirements of women who are pregnant or who have young children to care for, and those who are at risk of sexual violence. Measures taken to protect the Somali women have required improved security, the installation of perimeter fences, changes to the physical layout of the camps and encouragement and support to women who lay complaints. Moreover, "the protection that female refugees receive from the international community often fails to recognise their identity as women. Gender-specific forms of persecution are often given insufficient attention in refugee status determination procedures".12

[13] There are other women refugees with whom New Zealand is beginning to become familiar and who are more likely in the future to seek asylum here. It goes without saying that New Zealand's geographically isolated position in the world has thus far enabled it to be largely unaffected by the cataclysmic events in Europe, Asia and Africa. Whether that will remain so in the future can only be a matter for speculation. New Zealand is, however, likely in the future to see individual women claiming asylum because of discrimination practised against them because they are women. Such violations of their rights may well arise as the consequence of armed, civil or political conflict but equally as the result of practices which are perpetrated under the name of tradition, culture or religion in their own communities. Women trafficked for sexual exploitation in particular may also need to seek asylum. To a world conditioned to the primary importance of protecting civil and political rights, claims of violations on the basis of sex are not always treated as seriously. As the former Chief Justice of India, Justice P N Bhagwati, has said13

"It is also necessary for us to bear in mind that human rights of women cannot be allowed to be violated on the ground of cultural or religious values. Cultural relativism or misconceived religious dogmas cannot be an excuse for violations of human rights. This is something which has to be borne in mind by judges when women's issues come up for consideration. There has been a neglect of women's human rights in the mainstream of human rights. There are three reasons for this:

...

(2) An underlying schism over the relative importance of civil and political rights versus economic, social and cultural rights. Despite the rhetoric about the indivisibility of human rights, traditional civil and political rights have received the bulk of attention within this mainstream human rights discourse. Human rights theorists from the West - particularly from the United States - see 'rights' as the duty of governments not to interfere with the civil and political liberties of citizens. By contrast, many Third World countries argue for the primacy of economic and social rights, guarantees that create a positive obligation on State governments to meet basic human needs. Since many women's issues emanate from their position as the majority of the vulnerable sections of the society, the general neglect of economic and social rights means that women's concerns are further neglected.

(3) The mainstream's insistence on a division between public and private responsibility is also responsible for this situation. Traditional human rights theory primarily focuses on violations perpetrated by the State against individuals, such as torture, arbitrary arrest, and wrongful imprisonment. Under this framework, mainstream theorists do not recognise wife assault and other forms of violence against women as human rights violations because such acts are perpetrated by private individuals and not by the State. Violence against women is the touchstone that illustrates the mainstream limited concept of human rights. The dichotomy between public and private responsibility when applied to the reality of women's life leads to absurd distinctions. Rape by a police officer, for example, becomes a violation, while rape by a stranger, husband or acquaintance does not. The State should be held responsible for failing to protect the woman on the ground that the physical integrity of the woman is violated. Is it not a violation of the human rights of the woman?"

[14] The tendency to ensure protection of civil and political rights for which the State will be responsible while ignoring basic human rights in the private spheres of life is one which will continue to be a major issue for women.

[15] As Jane Connors, Chief Women's Rights Unit, Division of the Advancement of Women, UN Headquarters New York has said14:

"...The international refugee definition focuses on incompatibility between the refugee claimant and his or her State or country of origin brought about by violations committed directly by that State or country against individuals. It is also predicated on the view that violations of civil and political rights are particularly egregious and...facially gender-neutral. This facial gender-neutrality reflects the perspective...that women and men lead identical lives and that the human condition is unaffected by gender.

...The focus on direct violation by the State within the refugee definition and the definitions of international human rights serve to reproduce the liberal notion of private spheres of public and private life in international law. The notion of the public/private divide assumes a public sphere of rationality, order and public authority, which can be properly the subject of legal regulation and opposes this with a private, subjective sphere in which such regulation is inappropriate. As reproduced in international law, matters which are defined as of public international concern are the proper preoccupation of the international legal system and matters for which the State is answerable legally internationally. Matters perceived as private are the concern of individual States and not the business of the international community. The distinction between the public and private sphere both generally and as reproduced in international law supposedly works neutrally, but inquiry suggests that the distinction is deeply gendered. Direct public actions of States, attracting international accountability, affect men more than women. Although, regrettably, women are increasingly the victims of direct and public State actions15 predominantly the suffering of women is private and is frequently the result of oppression by individuals, often members of women's own families and communities, for which, prima facie, the State is not internationally answerable."

[16] Women and men may find the impact of conflict upon them differs often quite dramatically but women have the added factor of countering violations of their rights in the private sphere during war and peace. These have been well documented. They include son preference which places pressure on women to abort female foetuses or to permit their girl babies to die. Other practices involve coercive family planning practices, domestic violence and rape, trafficking in women, genital mutilation or traditional practices of female circumcision, gender based violence against women refugees and asylum seekers, violence associated with prostitution and with pornography, and violence in the workplace including sexual harassment, dowry deaths in India and some other countries. By their very nature such discriminatory and violent acts perpetrated against women will often make it impossible for the woman to flee her society and seek asylum. There have, for example, been few cases involving women escaping because of a fear of female genital mutilation although millions of women are subjected to this practice. In a recent and highly publicised case, Matter of Fauziva Kasinga a young woman from Toga was finally granted asylum in the United States of America following a finding by the US Department of Justice Executive Office for Immigration Review Board of Immigration Appeals that FGM can be a basis for asylum16.

[17] The international human rights discourse has been followed closely in New Zealand. In his paper to the UNHCR Symposium on Gender Based Persecution, Geneva17 22-23 February 1996, Rodger Haines QC noted that New Zealand refugee jurisprudence:

"accepts that persecution may be defined as the sustained or systemic violation of basic human rights demonstrative of a failure of State protection..."

and that

"while discrimination is not of itself sufficient to establish a case for refugee status, the Refugee Status Appeal Authority...recognises that discrimination can affect gender-based groups to different degrees, and that, 'the Authority should...consciously strive both to recognise and to give proper weight to the impact of discriminatory measures on women".

[18] The New Zealand Refugee Status Appeal Authority, moreover, has18:

"... found no justification for the interpretation adopted by some Western European countries, especially Germany, Sweden and France, which restricts the application of the concept of agents of persecution to the extent that refugee status is only granted to victims of persecution by State authorities or by other actors encouraged or tolerated by the State. On this view, inability of the State to afford adequate protection does not lead to refugee status, as UNHCR has observed. We find ourselves in agreement with the UNHCR position in this regard... It can therefore be said that New Zealand jurisprudence explicitly recognises that non-State or 'private' violence can constitute grounds for refugee status."

[19] It is in the context too of the different impact of human rights violations on women and men that some attention must be paid to the struggle by women to achieve substantive equality. While most States have amended their legislation to promote de jure equality for women the far greater problem of achieving substantive equality is yet to be tackled. In the context of refugee law it is necessary to consider a woman's application for asylum not only on the basis of equality with her male counterpart but to ensure that the same rules applied neutrally to both men and women do not have a more adverse impact on the woman applicant. Under the Women's Convention in article 1 the definition of discrimination acknowledges this barrier to women's equality:

"For the purposes of the present Convention, the term 'discrimination against women' shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." (emphasis added)

[20] The increasing recognition of the particular nature of violations of women's human rights has, therefore, moved from a narrow conception of such rights as constrained within the civil and political to a greater emphasis on the assurance of economic, social and cultural rights and the rights of women to be protected from violations in the private sphere of activity. It is timely and important to ensure now that the impact of refugee policy, legislation and decision making does not affect women adversely. Policies designed for male refugees will not always be effective for women who have particular needs and suffer different violations of their rights when they are internally displaced or fleeing across borders. They are targeted because they are women for political, sexual or financial reasons. They are less able to defend themselves than men and less able to provide for themselves due in many developing countries to their lower literacy skills and to the need to care for their children. Policies developed to be fair and even handed to all asylum seekers will often be unfair to women.

Future Trends in Refugee Populations

[21] As we have seen over the last decade the plight of women caught in conflict has gained far greater world attention. Although historically women have always been represented in large numbers as the victims of conflict as, for example, the Korean comfort women taken as slaves to provide sexually for Japanese soldiers during the Second World War, it is only quite recently that this gross violation of their bodily integrity and right to freedom has been emphasised as a violation of their human rights. Even as we speak these violations are being perpetrated on thousands of women and girl children in parts of Africa, in Afghanistan, in the former Yugoslavia and in parts of Asia. But armed conflict alone will not produce the future women refugees. I predict that trafficking in women is likely to become a major and even greater issue in the future. Women have long been taken for profit from the Philippines to parts of Asia, the Middle East and even to Australia and New Zealand. Now they are being trafficked in huge numbers from the former States of the USSR and when discovered are 'repatriated' promptly to their former State. Many of these women on their rerum will either be revictimised by the same men who trafficked them in the first place, will be unable to return to their own communities because of the shame attached to their sexual exploitation or because they are now infected with sexually transmitted diseases. Women who are trafficked cannot be treated simply as "economic" refugees. Their plight is much more complex and includes at the least, the consideration of the degree of responsibility which must be accepted by the receiving State. Moreover, it is impossible to remain isolated from the movement of refugees in other parts of the world. Air travel and modem communications make it very likely that States such as Australia and New Zealand will become more regularly targeted by refugees.

[22] In most parts of the world applications for asylum are growing while at the same time countries known formerly for their humane approach to refugee applications are beginning to face a public backlash. Austria and the admission of the Freedom Party to coalition Government status is but one recent example of a broader public wish to limit admission of refugees. In most States women's education is receiving greater attention. Consequently women will increasingly have the resqurces both educational and financial to attempt to flee from war or from violations of their rights within their own communities. Women in civil society are highly organised and innovative in protecting the human rights of women throughout the world. It is therefore very likely that more women will receive financial and professional support to obtain asylum in a foreign country as Fauziya Kasinga did. It is also possible that the current resistance to asylum seekers will moderate if demographic trends predicted in a recent UN study prove accurate. In that study it is estimated that Western European States in particular will require vast numbers of immigrants to support their economies within the next 50 to 100 years. States may find themselves competing for the best qualified migrants amongst whom many will be refugees from countries which are coping with conflict or are over populated. So too the practice of son preference in parts of Asia and Africa which have already produced an imbalance of men and women in their populations will find themselves competing for female migrants or combating trafficking in women to provide for men who wish to found families or to have domestic labour. For all of these reasons those processing applications for asylum, those adjudicating on them or representing asylum seekers need to be aware that women's migration may well change in size and composition within the next few decades.

[23] It is important that we are all aware of the particular reasons for women seeking asylum, that we deal with them knowledgeably and with a rights-based approach. New Zealand is a proud member of the international community which works to protect and promote women's human rights. An ability to be flexible and adroit in considering such applications will therefore become more and more important in the future.

1. A/Res/217 A(III), 10 December 1948
2. A/Res/2200 A (XXI), 16 December 1966
3. A/Res/2200 A (XXI), 16 December 1966
4. Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights, June 1993 UN Doc A/CONF. 157/24, at 33 paragraph 18
5. GA Res48/104 (1994), 1 IHRR 329
6. CHR/Res 1994/45, UN Doc E/CN. 4/1994/132 at 140 (1994)
7. Report of the International Conference on Population and Development, UN Doc A/CONF. 171/13 (1994)
8. Beijing Declaration and Platform for Action in the Report of the 4th World Conference on Women, Beijing September 1995, UN Doc A/CONF. 177/20 (1995), 35 ILM401
9. A/Res/34/108, 18 December 1979
10. A/Res/2106 A (XX), 21 December 1965
11. A/Res/39/46, 10 December 1984
12. The State of the Worlds Refugees: In Search of Solutions Published by Oxford University Press 1995 UNHCR
13. Advancing the Human Rights of Women: Using International Human Rights Standards in Domestic Litigation Edited Byrnes Connors & Bik, Commonwealth Secretariat, October 1997
14. "Legal Aspects of Women as a Particular Social Group", International Journal of Refugee Law Special Issue Oxford University Press 1997
15. See for example Women in the Front Line: Amnesty International, 1991
16. File A73476695; Interim Decision 3278. International Journal of Refugee Law Special Issue Oxford University Press 1997 and see "Do They Hear Me When I Cry" Fauziya Kasinga
17. Reproduced in International Journal of Refugee Law, Special Issue Oxford University Press 1997
18. Reproduced in International Journal of Refugee Law, Special Issue Oxford University Press 1997