Sibel SAFI, PhD
Abstract. The Geneva Convention on the status of refugees offers the basic definition and the problem emerges when the serious human rights violation like honour killing that do not clearly has its base on one of these Convention grounds which can constitute a legitimate premise for refugee recognition. Honour killings have often been seen as a personal or domestic issue and a further barrier to the recognition of gender-related persecution within current definitions and interpretations of the Geneva Convention is the way in which persecutory practices which may be common in ‘Third world’ countries are assigned to cultural differences. The United Kingdom refers the’ particular social group criteria’ in order to accept the fear of honour killing as a ground for asylum. However the methods of interpreting PSG utilized in judicial systems, creates lack of uniformity that negatively affects the adjudication of honour killing asylum claims, resulting in inconsistent judgments and unjust disparities.
Key words: particular social group, Geneva Convention, refugee, asylum-seeker, honour killing.
The Geneva Convention on the status of refugees offers the basic definition, stating that a refugee is a person that ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.’ The problem emerges when the serious human rights violation like honour killing that do not clearly has its base on one of these five grounds which can constitute a legitimate premise for refugee recognition. The UK refers the Shah and Islam case in order to accept the fear of honour killing as a ground for asylum, having a very restricted interpretation on Particular Social Group and Convention grounds. However, there is nothing in the Convention definition that allows for the exclusion of a claim on the basis that it is a persecution shared with large numbers of others. As stated by the former Canadian Refugee Status Advisory Committee; person is a refugee whether he/she is persecuted one, or persecuted with others. A woman cannot and should not be disqualified from claiming refugee status simply because large numbers of gender experience persecution in their lives.1 Honour killings have often been seen as a personal or domestic issue and the victim is seen as someone who is simply an unlucky victim of an ordinary crime and a further barrier to the recognition of gender-related persecution within current definitions and interpretations of the Geneva Convention is the way in which persecutory practices which may be common in ‘Third world’ countries are assigned to cultural differences.
In practice the extent to which the existing gender guidelines in the UK are actually implemented is open to question and the ways in which women’s asylum claims are
determined seems, as in other European countries, to be highly dependent on discretio-nary powers of asylum adjudicators and judges.
Geneva Convention on the status of refugees is a universal legal instrument with universal application as the other international human rights instruments which should protect and promote universal human rights standards contributing to the recognition that human rights violations cannot be justified on cultural, traditional or religious grounds.
This research asserts that the policy should be changed to make it clear that if a woman resists gendered oppression, her resistance is political.
Honour Killings in Turkey
Honour killings are a form of intra-family violence, where women, who are seen as the repositories of the man’s or family’s honour, and as such must guard their virginity and chastity, are killed, usually by their male relatives, because they are seen to have defiled the family’s honour and must be killed in order to restore it. Usually women are the victims of honour killings but also men may be killed in the name of honour. The perceived dishonour is normally the result of one of the following behaviours, or the suspicion of such behaviours: dressing in a manner unacceptable to the family or community, wanting to terminate or prevent an arranged marriage or desiring to marry by own choice, especially if to a member of a social group deemed inappropriate, engaging in heterosexual acts outside marriage and engaging in homosexual acts. Men can also be the victims of honour killings by members of the family of a woman with whom they are perceived to have an inappropriate relationship.1
A July 2008 Turkish study by a team from Dicle University on honour killings in the South-eastern Anatolia Region, the predominantly Kurdish area of Turkey, has so far shown that little if any social stigma is attached to honour killing. It also comments that the practice is not related to a feudal societal structure, “there are also perpetrators who are well-educated university graduates. Of all those surveyed, 60 per cent are either high school or university graduates or at the very least, literate.”2
A June 2008 report by the Turkish Prime Ministry’s Human Rights Directorate said that in Istanbul alone there was one honour killing every week, and reported over 1,000 during the previous five years. It added that metropolitan cities were the location of many of these, due to growing Kurdish immigration to these cities from the East.3 In 2009 a Turkish news agency reported that a 2-day-old boy who was born out of wedlock had been killed for honour. The maternal grandmother of the infant, along with six other persons, including a doctor who had reportedly accepted a bribe to not report the birth, were arrested. The grandmother is suspected of fatally suffocating the infant. The child’s mother, 25, was also arrested; she stated that her family had made the decision to kill the child.4
In 2010 a 16-year-old a girl was buried alive by relatives for befriending boys in Southeast Turkey; her corpse was found 40 days after she went missing.5 According to the statistics quoted by cabinet minister in charge of Women and Family Affairs, there have been 1,806 women killed in honour killings over the past 5 years, which means increasing and another 5,375 suicides by women in the same period of time. (Tuesday, March 26, 2013)1 In some cases, women or girls are not killed but have their noses mutilated, are forced into unwanted marriages (including marriages with their rapists) or are excluded and rejected by their families and forced to live in another place2. The man involved in the “dishonourable” incident is sometimes killed or injured as well.
The Failure of the State Protection
In asylum claims, establishing a well-founded fear of ‘serious harm’, a woman must also show that the State has failed to protect her, or would fail to do so. There is a failure of State protection if ‘serious harm’ has been inflicted by the authorities or by associated organisations or groups, or where the harm has been committed by others and the authorities are unwilling to give effective protection, or where harm has been committed by others and the authorities are unable to give effective protection.3
In asylum claims involving social mores and the concept of honour, represen/–tatives should be aware that, in addition to those instances where the State is directly responsible for the harm that individual women face or fear, for example through discriminatory legislation, women often fear harm from non-State agents which the State has failed to provide effective protection. In some cases, the State actually insti-tutio-nalised social mores and the concept of honour and therefore, can be held directly responsible for the harm experienced or feared by women asylum seekers. This can be seen, for example: The Syrian and Lebanese Penal Codes expand the application of the provisions to situations of “attitude equivoque”4 and provide for both an excuse of reduction and exemption in cases of adultery. In addition to differences as to the type of excuse the provisions also differ as to who may benefit from the provisions. Some of the codes extend the excuse to the husband, son, father, and brother of the victim5 whereas others limit the beneficiaries of the excuse to husbands.6 The Algerian Penal Code and the amended Jordanian Penal Code differ from the others in that they provide that both husbands and wives are beneficiaries of the excuse of reduction of penalty which is limited to situations of adultery.
Section 300(1) of the Pakistan Penal Code (which codified English common law) used to provide for an exception which stated that culpable homicide is not murder if an accused in a murder case could demonstrate that he had been deprived of the power of self-control by grave and sudden provocation. Even though not explicitly recognising a defence only for males who kill female relatives, the courts’ application of the provision resulted in a plethora of court decisions mitigating sentences in cases of honour killings.1 This provision has subsequently been replaced by the 1990 Qisas and Diyat Ordinance2 – a body of Islamic criminal law. Qisas (or quesas) are crimes which are defined in the Qu’ran and Sunna. Qisas crimes are murder, voluntary killings (manslaughter), involuntary killing, intentional physical injury or maiming and unintentional physical injury or maiming. These crimes give rise to two types of sanctions, retaliation (the principle of talion) or diyat (or diyya), compensation.3 It should be noted that the principle of retribution does not apply if the victim was impious or was in the process of committing a crime, such as adultery.4 In such a case the killing entails only diyat on part of the heir of the victim. Also, female Muslim victims and their heirs are only entitled to diyat the amount of which is half of that of a male.5
Thus, most acts of domestic violence, including honour killings, are encompassed by the Qisas and Diyat Ordinance.6 In accordance with the Qisas and Diyat Ordinance provides that the individual and/or his/her heirs retain the entire control. Consequently, in cases of honour killing, for example, the father as the heir of the victim (his daughter) may choose to obtain compensation from the perpetrator or, for example, if the perpetrator is the girl’s own brother, the father may choose to pardon the perpetrator, his son, and the honour killing is settled by that. Moreover, in cases where the killings actually are investigated and prosecuted the courts have used other provisions to circumvent the harsh punishments for honour killings (murder is punished by death in Pakistan) and gradually reintroduced the provocation provisions of the pre-1990 laws.7
In Pakistan and Palestinian tribal justice system; it must be noted that women do not as a rule have access to the tribal justice system. In honour crime cases compensation can be either money or a woman given as compensation to damaged honour. The jirga system is commonly perceived as expeditious, reliable and restorative. It is also perceived as providing for lasting solutions to disputes.8 The tribal justice system deals with honour killings in two ways. First, a jirga may order the killing of a woman who has allegedly violated the honour code. Second, a jirga may be involved in the reconciliation of a dispute after an honour killing has occurred. In these cases the victim (the man to whom the woman, kari, belonged) and accused (karo) are brought together before the jirga to settle their differences and to restore balance and peace.1 In the Palestinian tribal justice system the tribal judges’ first priority is to seek for means to provide sutra, or to conceal a scandalous incident, for example through forced marriage or, ultimately by killing the women concerned. Alternatively, the tribal notables will aim at preventing a scandal from further deterioration, dabdabeh, through e.g., retribution. The decisions of the Pakistani jirgas are final. The fact that the jirga aims at conciliation means in cases of honour killings that the cases are neither investigated nor prosecuted and that the perpetrators are not punished.
However, in some cases the western societies and courts always react to honour killings without being affected by the nature of the crimes. In Sweden in Elden A. case the sentence of a father who killed his daughter for honour related reasons was mitigated due to his cultural background, instead of being convicted of murder he was convicted of manslaughter.2 In the United States the so-called cultural defence has developed during the last two decades. Judges and attorneys have relied on cultural, ethnic and religious background to lessen a defendant’s responsibility for certain crimes. Courts have used the cultural defence to assess the defendant’s mental state, “incorpo-rating cultural factors into traditional defences”.3 In People v. Chen94 the court used the cultural defence to reduce the sentence for a Chinese immigrant who had murdered his wife, because the court found that Chen had been driven to violence by traditional Chinese values about loss of manhood (his wife had admitted to having an affair).
Accordingly, in an Australian case 4 the defendant, a man of Turkish decent had killed his sixteen-year old daughter because she had shamed him. The question was whether the defence of provocation could be pleaded to reduce the charges from murder to manslaughter. The defendant argued that the jury should be allowed to take his Turkish and Muslim background into account in its consideration of the characteristics of “an ordinary man”. While the court held that the issue of provocation was to left to the jury it noted that the cultural background of the defendant could be taken into account in the consideration of the characteristics of an “ordinary man.” However, the court also noted that defence of provocation would not apply to any act in the nature of a ritual killing or a killing dictated by the accused man’s religious or political beliefs and convictions. The High Court of Australia has, however, subsequently rejected the cultural defence and stated that ethnicity should not be taken into account when determining the level of self-control of the “ordinary man”.5
The Turkish Penal Code also permits a reduction in any sentence when an illegitimate baby is killed immediately after birth (Article 453). Article 463 again reduces imprisonment by 1/8 when a killing was carried out immediately before, during or immediately after a situation of anticipated adultery or fornication.6
As a result of the process of EU membership, important steps were taken. Turkey signed international agreements including CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) for the protection of the rights of women. Also, there were improvements in the legal framework. There were changes and amendments in the Constitution, the criminal code, the civil code and the laws regarding the family.1
In 2004, with an amendment made to Article 10 of the Constitution, the state was made responsible for ensuring that men and women are treated equally. Again with an amendment made to Article 90 of the Constitution, it was made clear that whenever there’s a disharmony between national laws and obligations resulting from international agreements, international law will be applied.
The most important changes particularly regarding violence against women and honour killings were made in the New Penal Code that took effect in June 2005. Until then, honour killings were considered to be crimes of extreme provocation, and sentences were often minimal. Indeed, the Turkish Penal Code allowed for a reduction in sentence when the killing is carried out in order to purify the honour of the family. Article 463 of the old code reduced imprisonment by 1/8 when a killing was carried out immediately before, during or immediately after a situation of anticipated adultery or fornication.
With the new law honour killings are defined as a form of voluntary homicide and are punished with life-long imprisonment. There is no reduction in the sentence. Also, according to the new penal code, those family members who encourage another member of the family to commit a murder or to commit suicide will be punished. Those who encourage children to commit a crime will be punished more severely.
Turkey is one of the countries in which honour crimes occur with alarming frequency. These crimes are justified or explained by the perpetrator(s) on the grounds that the crime was committed as a consequence of the need to defend or protect the family honour.
States that fail to protect women from violence must be held accountable. If they systematically fail in their responsibility, there should be international investigations and sanctions. Notwithstanding the difficulty of enforcement, the principle is that the states must feel moral, political, legal and economic pressure from the community of nations to protect their own citizens (especially women and children).
The state is liable for human rights violations by private individuals where it refuses or is unable to provide effective protection or redress. State inaction includes, but is not limited to, official legislation, lack of police response to pleas for assistance and/or a reluctance, refusal or failure to investigate, prosecute or punish individuals. Where a state facilitates, accommodates, tolerates, justifies or excuses denials of women’s rights, there is a failure of state protection.2
Geneva Convention for asylum seekers of potential victims of honour killings
Honour killings are a problem in a number of countries around the world and the potential victims have few alternatives, so asylum is a particularly important remedy that must be opened up to them in order to protect their right to life.
If we apply the universalism vs. cultural relativism debate to the refugee problem, it can be observed that a lack of respect for internationally recognized human rights standards in the name of cultural relativism can determine violations of universally recognized human rights norms. The Geneva Convention on the status of refugees offers the basic definition stating that a refugee is a person that ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.’ The problem emerges when other serious human rights violations like female genital mutilation, honour killings, rape in war etc. that do not clearly have their base on one of the these five grounds which can constitute a legitimate premise for refugee recognition. As the UNHCR training manual considers; ‘The International refugee law, like humanitarian law, is in fact a branch of human rights law.1 The Geneva Convention on the status of refugees is a universal legal instrument with universal application as the other international human rights instruments. As a universal legal instrument it should protect and promote universal human rights standards contributing to the recognition that human rights violations cannot be justified on cultural, traditional or religious grounds. Sustaining this universalist view, the Declaration on the Elimination of Violence Against Women, for example, prescribes that custom, tradition or religious consideration cannot be invoked in order to avoid obligations to the eliminations of violence against women. (DEVAW, art. 4) In addition, the Convention on the Elimination of all forms of Discrimination Against Women calls upon states to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of inferiority and superiority of either of the sexes or on stereotyped roles for men and women. (CEDAW, art;5-a) According to UNHCR Guidelines on gender-related persecution harmful practices in breach of international human rights law and standards cannot be justified on the basis of historical, religious or cultural grounds. (HCR/GIP/02/01- 7 May 2002) The 1995 Beijing Platform for Action resulted in the declaration that culture, tradition and religion could not be used by the State to avoid their obligation to protect women.2 Jack Donnelly best summarizes the contemporary doctrine of the universalist approach by putting forward the following conclusions:
1. All humans have rights by virtue of their humanity;
2. A person’s rights cannot be conditioned by gender or national or ethnic origin;
3. Human Rights exist universally as the highest moral rights, so no rights can be subordinated to another person (e.g. a husband) or an institution (e.g. the state).3
1951 Refugee Convention and 1967 Protocol relating to the Status of refugees, as has been regularly pointed out in the literature4 were forged in the crucible of post-World War II Europe and were further shaped by the Cold War agenda which reflect the principal concerns of that period namely the need to protect individuals from state persecution resulting from political beliefs or personal identity. Unfortunately, this traditional view of the asylum seeker as male, together with narrow and fairly rigid interpretations of what constitutes persecution, has had the effect of denying women, their right to international protection. Women who fear persecution as a result of transgressing religious, customary or social mores that the practices themselves may be based on an assumption of the inferior status of women, which can manifest in discrimination severe enough to qualify as persecution (for example, female genital mutilation, honour killings or dowry burnings); or transgressions may be met with punishments so disproportionately severe as to amount to persecution (for example, in countries such as Iran where women can be flogged for wearing lipstick, or Afghanistan, where they can be stoned or even killed for going out unaccompanied by a male relative). 1
The states demonstrate inconsistent responses to accept the fear of honour killing as a ground for asylum, having a very restricted interpretation on Particular Social Group and Convention grounds. However, there is nothing in the Convention definition that allows for the exclusion of a claim on the basis that it is a persecution shared with large numbers of others. As stated by the former Canadian Refugee Status Advisory Committee; person is a refugee whether he/she is persecuted one, or persecuted with others. A woman cannot and should not be disqualified from claiming refugee status simply because large numbers of women experience persecution in their lives. (Canadian Minister of Employment and Immigration, 1982)
UK Asylum policy against honour killing cases
The UK refers the Shah and Islam case (1999, House of Lords) in order to accept the fear of honour killing as a ground for asylum, having a very restricted interpretation on Particular Social Group and Convention grounds. In the UK case-law on whether women fleeing gendered social mores are members of a particular social group within the Refugee Convention has been largely negative. The UNHCR has provided helpful guidance in defining a PSG by stating that: 2
‘A particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights’ In international jurisprudence there are two approaches to determining whether a particular social group exists. The first approach is the “protected characteristic” or “Immutability” one, which requires the group to share an immutable characteristic or a characteristic so fundamental to their human dignity that it should not be denied.
This doctrine of ejusdem generis was found to be the most helpful by the House of Lords in the case of Shah and Islam. Ejusdem generis literally means “of the same kind” and is a rule of construction which may assist in defining a general term following in a list of particular terms and which should be interpreted in a manner consistent with the general nature of the enumerated items. This would effectively make the definition of a PSG redundant as anyone who was persecuted by the state or by non-state actors in the absence of state protection would fall into this category and would be entitled to refugee status.3 Neither is there a requirement that the group share an element of cohesiveness, co-operation or interdependence. Further, there is no requirement for there to be a voluntary, associational relationship; its members need not be homogenous and it may include large numbers of persons.4
One of the aims of the EU Qualification Directive is to adopt a common concept of PSG while allowing EU member states to adopt more favourable standards. Article 10(1)(d) QD provides that:
I – Member States shall take the following elements into account when assessing the reasons for persecution …
(d) a group shall be considered to form a particular social group where in particular: [(i)] members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and [(ii)] that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;
In Shah and Islam case: the conjoined appellants were two Pakistani married women who fled to the UK after suffering domestic violence in Pakistan. After being granted exceptional leave to remain in the UK, the appellants claimed refugee status according to Article 1 A(2) of the Convention Relating to the Status of Refugees, 1951, as ‘members of a particular social group’. Both appellants claimed that they faced the risk of being falsely accused of adultery in Pakistan by their husbands and that if they returned to Pakistan they would be subject to criminal proceedings for sexual immorality, which could lead to punishment by flogging or stoning to death.
This reasoning covers Pakistani women because according to the legal and social conditions existing in Pakistan they are discriminated against on grounds of gender and as such are a social group unprotected by the state. Even if Pakistani women themselves are not a ‘particular social group’, the appellants are members of a more narrowly circumscribed group based on the unifying characteristics of gender, suspicion of adultery and lack of state protection.
Case Studies of Turkish Honour Killing Asylum Applications in the UK
The Kircicek and the Sever cases are representative of the other cases. On 28th October of 2002 in Kircicek case1; the claimant had maintained a fear of persecution from her father, who it was claimed, has arranged her marriage without her consent. She fears persecution also from her intended husband and his family, because of staining the family’s honour.
During the case the adjudicator determined that “by defining the social group as “women in Turkey who have transgressed social norms and are accused of having brought dishonour and shame upon their families” it is not clear that the group can exist independently of the persecution. The only two sources of her fear are from her father and from her intended husband.‘’
According to claimant’s arguments “the claimant has transgressed social norms because she is not now a virgin and this will become known. Discrimination will be tolerated by the State. The law in Turkey clearly does discriminate against women and one example of this is the lesser sentences imposed for those involved in honour killings. Judges consider tradition and there is great community pressure on them to lighten the sentence. Women occupy secondary status in Turkey and although Turkish law does not go as far as it does in Pakistan, there is no significant distinction. She forms a member of a social group, namely women who have transgressed social norms in Turkey.’’
And in paragraph 47 of her determination, the Adjudicator referred to Shah and Islam. Referring to the judgment of the House of Lords, she said,
“Women in Pakistan are members of a particular social group. They all share the immutable characteristics of gender and are discriminated against by the society in which they live and as a group are unprotected by the State”.
“The same cannot, however, be said of women in Turkey. Whilst undoubtedly they still suffer acts of discrimination, they can no longer be said to be discriminated against by the law and, we find, they are not unprotected by the State. The adjudicator did not find that societal discrimination against women is either condoned or sanctioned by the State in Turkey. The Tribunal finds that the claimant’s fear is not one which engages the Refugee Convention. It also finds that on her return to Turkey she can and will be offered protection by the Turkish authorities, should she choose to seek it. Her rights under Articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms will not be breached.
Sever case was a LGTB application on 4th October of 20021 which the Appellant claimed that he had failed to mention that he was gay in his initial interview as he had been accompanied by his brother-in-law when he completed the SEF and his brother-in-law would have disapproved very strongly of his sexual orientation. The Appellant claimed he had been gay for some two years but his family did not know of this although they may have been suspicious. He claimed that he had been raped by two police officers in a woodland in 1999 or 2000 after they had discovered he was gay. He was not under arrest at the time but the officers threatened that they would tell his family if he complained about their behaviour. He then claimed that some officers had subsequently taken him to the police station in 1999 in order to scare him but they did not repeat the behaviour. The Appellant had also confirmed he had received call up papers for his military service. This had been deferred because he was preparing to go to university. However he stated that in fact he would not have to perform military service if he satisfied the authorities he was gay but this means that he would need to be issued with a “pink card” and his family would then learn about his situation, and he will be killed by family members because of staining the family’s honour.
On the issue of whether the Appellant had been raped by the two police officers the Adjudicator concluded that: “even if the rape did take place the police officers responsible were not attacking in furtherance of any official policy to intimidate or humiliate practicing homosexuals and that their actions would not have been condoned by their superiors. They could not therefore be described as agents of persecution for whom the Turkish state should be held responsible.” The Adjudicator then concluded that the Appellant did not have a well-founded fear of persecution for a Refugee Convention reason. He went on to consider whether the Appellant would suffer cruel or inhumane treatment contrary to Article 3 of the ECHR. In this regard the Adjudicator considered the Appellant’s objection to military service and noted that although the Appellant may suffer some harassment before his homosexuality is officially recognised. He was satisfied that the Appellant would be issued with a “pink card” and thus not required to serve. On the issue of the rapes by the police which the Appellant claimed had taken place, the Adjudicator accepted that the Appellant may well have been arrested by the police and they may have employed intimidatory tactics however while recognising that past ill-treatment may sometimes be evidence of a future risk he did not consider that the Appellant was at such a risk.
In relation to the claims under Article 8 and 14 of the ECHR the judge does not consider that there is any evidence to indicate a real risk to a breach of the Appellant’s right to a private life. It appears that he conducted a gay relationship for some two years prior to leaving Turkey. Beyond this any breach of Article 8 or indeed of discriminatory behaviour on the basis of his sexuality we consider is outweighed by the valid immigration control obligations of the United Kingdom and that it would not be disproportionate to return the Appellant to Turkey. The appeal is therefore dismissed.
In both decisions the applicants are under the threat of death by family members because of staining their family’s honour, the particular social group criteria has been referred as a ground for asylum on the Convention grounds and the appeals dismissed. The state is unable to protect the victims due to the conditions discussed above. According to social conditions existing in Turkey, they are discrimi-nated because of perceived dishonour on the grounds of gender and despite existing legal amendments the state is unable to protect the victims. In Turkey the perceived dishonour exists normally the result of wanting to terminate or prevent an arranged marriage or desiring to marry by own choice or engaging in heterosexual acts outside marriage and engaging in homosexual acts.
WHAT CONSTITUTES PERSECUTION?
However, persecution within the context of the 1951 Refugee Convention must contain two elements: first establishing ‘serious harm’ (or threat thereof), and second, the inability or unwillingness of a state to offer protection to the individual. But, rape, “honour killings.”, bride-burning, genital mutilation, forced sterilisation, forced abortion, domestic violence are all acts of violence regularly committed against women. What makes women the target of such acts is primarily if not exclusively their sex? Member-ship of the female sex is what creates the risk.
Following the set by the Canadian guidelines, it is becoming more widely accep-ted that women refugees’ experiences of persecution fall into four broad categories.1
1. Women who fear persecution on the same grounds and under similar circum-stances as men. This includes women persecuted for their identity – national, racial or social – or their particular beliefs. Women in this category are also often persecuted as women (for example, are raped). In other words, they may be harmed in different ways to men who participate in the same activities or who share the same identity.
2. Women who fear persecution solely because of reasons relating to kinship. They may also be persecuted for views held by male members of their family. For example, it might be assumed that the spouse of a political activist holds the same views as her husband.
3. Women who fear persecution resulting from conditions of severe discrimination on grounds of gender, and who are at the risk of systematic violence at the hands of private citizens because the state is either unable or unwilling to protect them.
4. Women who fear persecution as a result of transgressing religious, customary or social mores.
Persecution by non-state actors for the majority of women, however, abuse and violations occur not at the hands of the state or during times of war, but at the hands of private individuals, and within their communities. Such persecution has regularly been side-lined by the argument that there is no state culpability (which is required in appeals for international protection) in cases of private abuse. This argument fails to recognise the dual nature of a state’s responsibility to its citizens. States not only have a negative obligation not to violate a citizen’s rights, but a positive obligation to respect and protect such rights1.
In 1988, the Inter-American court in the case of Velasquez-Rodriguez2 ruled that:
An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.
All these actions constitute state complicity if they deprive women of effective legal protection from abuse. The existence of legislation that seems to protect women should not be used as evidence of state protection in and of itself, if it can be proven that abuses continue unchecked. For example, murder is a crime in countries in which honour killings, widow burnings and dowry murders are rife – yet such crimes are rarely prosecuted. Laws alone are insufficient to prevent mistreatment of women if there is no political will to enforce them. There are a number of reasons why governments might not enforce legislation that protects women. These include the fact that discrimination is viewed as ‘trivial’, that abuse of women is seen as a cultural or private issue, that women’s rights are not fully recognised as human rights, and that the abuses are seen as too pervasive to confront3.
In 1984, the European Parliament and the Dutch Refugee Council passed similar resolutions stating that the concept of ‘a particular social group’ could apply to groups of women who transgressed moral and ethical principles in their societies and who were victims of cruel and degrading treatment as a result. In 1991, the UNHCR released its ‘Guidelines on the Protection of Refugee Women’ (UNHCR, 1991). In March 1993, Canada became the first country to produce a comprehensive set of guidelines on the inclusion of gender as a ‘social group’ under the 1951 Convention. The guidelines were reviewed and updated in 1996, and today act as a guide for other countries addressing this issue. The Canadian precedent was subsequently followed by a number of other countries, including the United States, Australia, and most recently the United Kingdom. South Africa is in the unique position of having included gender within the definition of ‘social group’ in the Refugees Act, 130 of 1998. Most states that have recognised gender persecution have chosen not to amend existing legislation, but rather to provide non-binding guidelines on how gender may be incorporated into the category of ‘social group’ persecution. By including the category of gender within its legislation and giving it legally binding status, South Africa has made a real commitment, in theory at least, towards recognising the rights of women refugees. Article I(2) of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa broadens the UN definition and states: “The term ‘refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.’’
Gender-related persecution is sometimes more subtle than other forms. It can take the form of restrictions on the way a woman behaves or it can involve in forcing her to act in a certain way. 1 There has been increasing concern among advocates and practitioners about the way in which the asylum claims of women who experience gendered social norms and mores are interpreted within international refugee law. In many contexts, women are subjected to discriminatory treatment and social mores which are enforced through law or through the imposition of cultural or religious norms which restrict their opportunities and rights. Gendered social mores and discrimination are seen in, but are not limited to: legislated discrimination,2 for example behavioural restrictions for example, not going out in public without a male ‘protector’, marriage related harm including the consequences of remaining single, separating, divorce and widowhood.3
In asylum applications, critical to the formulation of these claims is the fact that the applicant must establish that the government is the source of the persecutory measure or that the government is unwilling or unable to protect her from perse-cution. When the treatment is through discriminatory statutes or laws which may be gender-neutral but are applied in a manner which target women and which are enforced by the government, State involvement is clear.4
The issue of the failure of the State protection in honour killings is often one which is critical in asylum cases involving social mores and discrimination because, it is often members of the family and community who ensure that the State’s approach is enforced. Although a woman who is perceived to have brought shame upon her family, community and nation may have very real fears that she will be punished by the State if forced to return, more commonly she will fear persecution from her family and/or community The male members of the family believe that they can only regain their honour and that of the family and/or community by murdering the woman for her alleged sexual transgressions.5
For instance many states where honour killings occur have, however, not ratified any international human rights treaties under which they could be held responsible for their failure to protect the right to life of women, to respond effectively to violations of the right to life or their failure to eliminate discrimination against women. For example, Pakistan, the state where at least 461 women were killed in 2002 in the provinces on Sindh and Punjab alone6, is not a party to the ICCPR (International Covenant on Civil and Political Rights) under which it could be held responsible for the failure to protect the right to life of women. Jordan, for instance, is a party to the ICCPR but has not recognised the Human Rights Committee’s competence in accor-dance with the Optional Protocol Convention;1 however, the CRC does not include a possibility of individual complaints. 2
THE POLICY SHOULD BE CHANGED TO MAKE IT CLEAR THAT IF A WOMAN RESISTS GENDERED OPPRESSION, HER RESISTANCE IS POLITICAL.
In particular social group criteria there are social groups other than those that share immutable characteristics, or which combine for reasons fundamental to their human dignity. Drawing the contours of such groups by reference to the likelihood of persecution confuses the issues of identity and risk, despite the fact that each is relevant to the other. The individualized approach of the Convention refugee definition requires attention to personal circumstances, time and place, all of which may combine to distinguish those at risk from others who may share similar characteristics and yet not be in danger. Although there will be policy pressures to limit refugee categories in periods of increased population displacement, there is no rational basis for denying protection to individuals who, even if divided in lifestyle, culture, interests and politics, may yet be linked across another dimension of affinity. Council of Europe Committee of Ministers Recommendation Rec(2004)9 on the concept of ‘membership of a particular social group’ in the context of the 1951 Convention relating to the status of refugees, 30 Jun. 2004, for the position that a ‘particular social group’ is a group of persons who have, or are attributed with, a common characteristics other than the risk of being persecuted and are perceived as a group society or identified as such by the state or the persecutors. The applicant must provide the evidences of the persecutor’s motives to show that the persecution was motivated by the social group membership.
However, RWLG Gender Guidelines for the Determination of Asylum claims in the UK (1998) 4.17 describes the actual or imputed (attributed) political opinion as; A woman who opposes institutionalised discrimination against women or expresses views of independence from the social or cultural norms of society may sustain or fear harm because of her actual political opinion or political opinion that has been or will be imputed her. She is perceived within the established political/social structure as expressing politically antagonistic views through her actions or failure to act. If a woman resists gendered oppression, her resistance is political.
Honour killing is defined as the murder or forced suicide of a person by a family or clan member or a hired killer upon the suspicion or insinuation that the person has compromised his or her virtue and thus stained the family’s honour (in other words, upon the suspicion or insinuation that one has been involved in something immoral and thus, disgraced his or family).
Sometimes gender-based discrimination in honour killing cases is often enforced through law as well as through social practices. In cases of legislated discrimination, a woman will have to prove that the nature of the discrimination was sufficient to rise to the level of serious harm within the meaning of persecution. It should be noted a woman’s claim to Convention refugee status cannot be based solely on the fact that she is subject to a national law or policy to which she objects. (CIRB 1996)
Many scholars have called for reform in the treatment of gender-based claims. Honour killings are a problem in a number of countries around the world and the potential victims have few alternatives, so asylum is a particularly important remedy that must be opened up to them in order to protect their right to life. Granting asylum to potential victims of the honour killing on the basis of political opinion should be remedy for consistencies of the state’s asylum policies.
POLITICAL OPINION SHOULD BE UNDERSTOOD IN BROAD SENSE
Article 19 of the 1948 Universal Declaration of Human Rights provides that: “Everyone has the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’’
In the 1951 Refugee Convention, “political opinion’’ should be understood in the broad sense, to incorporate, within substantive limitations now developing generally in the field of human rights, any opinion on any matter in which the machinery of State, government, and policy may be engaged. 1
Challenges to social mores and norms, differing as they do from conventional forms of political contestation, have typically been considered ‘personally motivated’ and have not been categorised as political. As a result, women persecuted for such transgressions have typically had difficulties bringing themselves within the protection of refugee law. Political opinion should include women’s opposition to extreme, institutionalised forms of oppression. A woman who opposes legislated discrimination against women or expresses views of independence from the social or cultural dominance of men in her society may be found to have been persecuted or to fear persecution because of her actual political opinion or political opinion that has been or will be imputed to her. If a woman resists gendered oppression, her resistance should be regarded as political activity. According to Macklin, “identifying women’s resistance to gender subordination as political opinion…’’ 2 is one believes that the personal is political and that patriarchy in a system constituted primarily through power relations and not biology.3 The fact that a woman may challenge particular social conventions about the manner in which women should behave may be considered political by the authorities and may attract persecutory treatment on the basis. The strength of this approach is particularly clear in the case of women’s refusal in divorcing. Clearly in this instance, women are not being punished solely because they are women, since those women who refuse to obey the husband are not punished, but because their actions are not accepted. In other words, they are punished because they refuse to be ‘proper’ women.4
In addition, there are cases where women do not directly or intentionally challenge institutionalised norms of behaviour but are nonetheless imputed with a political opinion as a consequence of their experiences. This can be seen, for example, in the characterisation of a raped woman as adulterous, in the social ostracism of an unmarried, separated, divorced, widowed or lesbian woman, and in the politicisation of violations of dress codes.1
A woman who opposes institutionalised discrimination against women, or expresses views of independence from the social or cultural dominance of men in her society may be found to have been persecuted or to fear persecution because of her actual opinion. There is a growing acceptance on that part of decision-makers in different jurisdictions that women’s resistance may take the form of opposition to gender social mores and attitudes, and that their opposition to State-imposed dress codes is politically, as opposed to personally, motivated. In Canada, the gender guide-lines explicitly promote the recognition of resistance to societal mores, such as female genital mutilation and dress codes, as political opinion.2 This position is reflected in existing jurisprudence. A reform for interpreting the Geneva Convention may amend the inconsistencies between asylum policies and might remedy the disparate, often unjust treatment of gender-based persecution claims to grant asylum to men/women.
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