International refugee law protects the right of persons who have fled a country to seek asylum in another if they have a well-founded fear of persecution should they be returned to the country they have fled. However, refugee women who have suffered sexual violence have faced great difficulty in obtaining asylum elsewhere for three reasons. First, the procedure to determine asylum eligibility is generally insensitive, and even hostile, to refugee women who have suffered sexual abuse or who for other reasons may have difficulty relating their claims. In this procedure, all refugees arerequired to describe the persecution they have suffered to asylum adjudicators. However, refugee women are often reluctant to disclose experiences of sexual violence, particularly if the asylum adjudicators are men, due to the stigma attached to sexual violence or as a result of trauma.13 Other refugee women might refuse to detail the abuses they have experienced for fear of retribution against their family members or rejection by their communities. Asylum adjudicators who are not aware of such concerns have negatively interpreted women's reluctance to describe the sexual violence inflicted on them and incorrectly judged their testimony not credible.14
Second, asylum adjudicators have tended to dismiss gender-specific violations experienced by refugee women as "personal" or "cultural" harms that do not qualify as political persecution. Often, accounts of rape and other sexual abuse perpetrated against refugee women for political purposes have been treated in a discriminatory manner by asylum adjudicators who have dismissed such persecution as "personal" harm and denied asylum.
Third, asylum adjudicators have presumptively excluded women asylum applicants on the grounds that gender is not specifically listed in the U.N. Convention Regarding the Status of Refugees. That convention requires states to grant asylum to refugees fleeing a well-founded fear of persecution on the grounds of "race, religion, nationality, membership of a particular social group, or political opinion."
Gradually, however, the international community is recognizing that gender-related persecution is a basis for asylum. The UNHCR has interpreted the refugee definition to consider women asylum seekers with gender-related claims as members of a "particular social group." Two broad categories of gender-related claims have been identified: those in which the persecutionconstitutes a type of harm that is particular to the applicant's gender, such as rape or genital mutilation; and those in which the persecution may be imposed because of the applicant's gender, for example, because a woman has violated societal norms regarding women's proper conduct.15
Several countries have taken actions that have contributed to the growing acceptance of gender-related persecution as a grounds for asylum. In 1984 the European Parliament determined that women fearing cruel or inhuman treatment as a result of seeming to have transgressed social mores should be considered a "social group" for the purposes of determining their status. Both Canada and the United States have issued guidelines to their immigration officials to help them identify women who should be granted asylum in cases where gender-specific forms of abuse have been used for political persecution in their homelands. Their guidelines educate asylum adjudicators to recognize gender-specific forms of violence and provide them with procedures and methods to better evaluate whether individual claims meet the refugee standard. While these guidelines do not change the standard that women asylum seekers must meet, they do recognize that human rights abuses faced by women because of their gender can rise to the level of persecution.16
Refugee situations can ultimately be solved only with an end to the conflict or other catastrophe that caused the refugee flight. In the meantime, governments and the UNHCR have a responsibility to ensure the safety of refugees. This obligation extends to the protection of refugee women from gender-based abuse.
13 Victims of sexual violence may exhibit a pattern of symptoms referred to as Post Traumatic Stress Disorder or Rape Trauma Syndrome that makes it difficult for them to testify. These symptoms may include persistent fear, a loss of self-confidence and self-esteem, difficulty in concentration, an attitude of self-blame, a pervasive feeling of loss of control, and memory loss or distortion. Nancy Kelly, "Guidelines for Women's Asylum Claims," International Journal of Refugee Law, (Oxford: Oxford University Press, 1994), vol. 6, pp. 533-534.
14 This is not to discount the fact that there have been some fabricated claims of rape by refugee women hoping to be resettled. These false cases will diminish in number as the relief community's response to helping rape survivors becomes more immediate and mechanisms are put into place for monitoring, reporting and effectively responding to sex-based abuses as they occur.
15 Kelly, "Guidelines for Women's Asylum Claims."
16 See also, "Guidelines for Women's Asylum Claims," Women Refugees Project, Harvard Immigration and Refugee Services. This set of guidelines gives recommendations to asylum adjudicators on dealing with gender-based asylum claims and were developed in collaboration with thirty-six refugee and human rights organizations in the United States, including Human Rights Watch.
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