Gender-based Persecution Research Articles

Jahai Voices of Malaysia: Exploring Indigenous Women Empowerment and Sustainable Development in the Royal Belum State Park

Social development is a key pillar of sustainable development. Sustainability is linked not only to the environment, but also to the social and economic surroundings, forming the three pillars that aim to ensure the integrity of the world and to raise the standard of living. The Jahai tribes are an indigenous people or Orang Asli in Malaysia. It is important to identify the role and contribution of Jahai women in their community. The needs, desires and interests of indigenous men and women differ from one another as they have their own respective roles and responsibilities. The roles and contributions in Jahai women should be able to empower them and give Malaysian a better perspective of Jahai women in Royal Belum State Park, Malaysia. Therefore, this paper explores the Jahai tribe women roles and contributions toward sustainable development in Royal Belum State Park. This study employs a qualitative case study which includes in-depth interview and focus group interview for data collection. The research study was based on Transnational Feminist Theory (TFT) approach that can be used to assess the current environment concerning recognition of gender-based persecution. This study reveals that Jahai women play a significant role in supporting the sustainable development in Royal Belum. This scholarly discovery may benefit us to understand how the indigenous women can contribute towards sustainable development and provide insight into the strategies that the relevant authorities may take the initiatives for helping the country to achieve the sustainable development goals (SDGs).

LGBTQ+ asylum and transformative accommodations between religion, faith and sexuality in the UK

ABSTRACT The right to asylum on grounds of sexuality and/or gender-based persecution is frequently seen as synonymous with the right to “exit” one’s oppressive religious community. This article aims to critique this assumption through a focus on LGBTQ+ asylum claimants, refugees and support providers everyday negotiations with and between faith, religion, sexuality and gender identity in the UK. Drawing on critical scholarship on religion, gender, sexuality, difference, and asylum, as well as empirical research with asylum claimants and secular and religious support organizations in the UK, this article shows how LGBTQ+ refugees and asylum claimants respond to experiences of marginalization through processes of “transformative accommodation” between faith traditions and liberal LGBTQ+ rights. Such accommodations highlight the instability of assumptions that view LGBTQ+ rights in conflict with faith and religious belief, in turn contesting the basis on which racialized, secular and gendered differences that pervade contexts of LGBTQ+ asylum are maintained.

The right and role of critiquing the contemporary patchwork of protection

The right and role of critiquing the contemporary patchwork of protection

Trapped Between Borders: A Proposal to Apply International Legal Protection to Persecuted Women and Girls Who are Unable to Flee

Women and girls who face forced marriage, honor killing, female genital mutilation, and other forms of gender-based persecution can apply for refugee status and resettlement to a safe third country if they are able to cross an international border. Yet in countries like Iraq, where laws and traditions severely curtail women’s rights and mobility, travel outside of the country on their own is near impossible. Women with potential refugee or asylum claims based on gender-based persecution face heightened barriers to accessing international legal protection due to domestic legal and cultural barriers, and the nature of gender-based violence where more often than not the perpetrators are those closest to them and well positioned to exert domination and control: members of their family, clan, or tribe.1 Women’s access to safety and justice in many countries remains elusive where States persistently deny women’s demands for legal rights and resources to respond to violence against women, highlighting the importance of access to international protection for women facing persecution who are unable to flee across an international border. States have a duty to protect their citizens, yet many fall short particularly when it comes to women and girls. Iraq is one such country that maintains harmful laws and practices that condone gender-based violence and discrimination, and although there has been some progress with legislative reform, it takes time to fully implement them, leaving individual women unable to benefit and at continued risk of persecution. In 2014 in an egregious case, the Iraqi government breached its duty to protect its citizens when it failed to prevent attacks by the Islamic State of Iraq and Syria (ISIS) against the religious minority Yazidi community, leaving women and girls exposed to sexual violence and trafficking as part of ISIS’ genocide. Persecuted women and girls in Iraq and other countries are trapped, immobilized in their homes, shelters, camps, and jails while the perpetrators remain free; yet if they could cross an international border, they would qualify to apply for refugee protection and possible resettlement. While still in their homeland, individual cases of persecuted women who are not part of displaced populations have few avenues for legal protection and services while still inside their country borders. They fall outside of the United Nations High Commissioner for Refugees’ (UNHCR) categories of “persons of concern” that include people who have been forced to flee such as refugees, internally displaced persons, stateless persons, or returnees; the distinction ostensibly between those fleeing as part of larger population flows rather than as individuals. Individual women fleeing persecution, because they are generally excluded from humanitarian services and programs, are forced to rely on what, if anything, is provided by the State and local and international nongovernmental organizations. This is despite the fact that women who face gender-based persecution share similar characteristics to other recognized groups such as refugees and internally displaced persons who have suffered human rights violations and are in need of protection. This Article provides a case study based on women’s actual experiences in Iraq to illustrate the heightened barriers women experience due to discriminatory domestic laws and traditions as well as the nature of gender-based persecution that prevents them from fleeing across an international border. Furthermore, this paper highlights the need to bring individual women and girls fleeing persecution under the “persons of concern” umbrella as one way to address their needs while they pursue international protections inside their borders. In Central America, UNHCR piloted a program to provide safe access to international protection for individuals inside their country who were identified for safe resettlement, demonstrating there is acknowledgment that some individuals require, and would qualify, for protection but face additional hurdles to accessing legal protection. I propose extending legal and humanitarian benefits to women and girls facing gender-based persecution while they are still inside their countries of origin and who cannot flee across an international border. At a minimum this approach would apply in States that fail significantly to respond to gender oppression and violence, restricting women’s mobility, thereby putting additional barriers in front of women to access international protection. To achieve this, I recommend creating a new category of “persons of concern” to include “persecuted women and girls” (PWGs). This would pave the way for UNHCR to include individual women and girls stuck in shelters, jails, or other confined spaces to have access to services and protection similar to other persons of concern. Once these individuals are clearly recognized as a protected group, it would open the door to extending in-country refugee protection and resettlement to safe countries to PWGs without requiring they cross an international border.

Gender-based Persecution as a Crime Against Humanity

Abstract In 2019, in the case of Prosecutor v. Al Hassan, Prosecutor Bensouda sought confirmation of the first charge of gender-based persecution at the International Criminal Court (ICC). Given that no previous international tribunal had jurisdiction to prosecute persecution on ‘gender’ grounds, this was an important first step towards developing the jurisprudence on this crime. Meanwhile, the Rome Statute’s definition of ‘gender’ has been discussed and debated in the International Law Commission (ILC) in the context of the ongoing development of draft articles on crimes against humanity. In the context of these recent developments in the ICC and ILC, this article closely examines the Rome Statute’s definition of ‘gender’, and explores what ‘gender’ means as a ground of persecution. We conclude that as a result of the definition agreed to at the 1998 Rome Diplomatic Conference, the Rome Statute’s definition of ‘gender’ captures the social aspects of gender, consistent with widely accepted practice at the time of the Statute's adoption and in the two decades since. These are important facts to hold on to as the focus on the definition of ‘gender’ intensifies, the ICC’s jurisprudence on gender-based persecution evolves, and efforts advance to develop a new convention on crimes against humanity.

The ICC's Obligation to Prosecute Gender-Based Persecution

Studies report that systemic discrimination against females globally is responsible for 200 million women missing today. 200 million women. Compared to males, females receive inadequate access to health care and nutrition. A substantially disproportionate number of females are aborted than males. And, violence against females at every age and level is rampant all around the world. This paper builds the case for the International Criminal Court to prosecute gender-based persecution to show the world that the international community will not stand for systemic discrimination against women any longer. The paper begins with an in-depth summary of the studies showing violent discrimination against women across the world. From there, I build the case that the international community has an obligation to respond to such discrimination through the prosecution of gender-based persecution. To support that argument, I discuss the expressive value of law and the commitments made by the International Criminal Court to enforce the law against persecution. Next, I analyze the ways in which international criminal courts have tried and failed to prosecute gender-based persecution to date, but only to close the paper with a plan for how the International Criminal Court can successfully prosecute perpetrators of gender-based persecution.

‘She, of Course, Holds No Political Opinions’

Women continue to face challenges in having their asylum claims recognized under the Refugee Convention. This is to a significant extent due to the ways in which the Convention is applied to women’s claims and is particularly the case in gender-based persecution claims. While there have been important advances in the field of gender and refugee law, contributing to an improved understanding of the relevance of gender within international refugee law, there remains a need for more gender-sensitive interpretations of the Convention. This article critiques the ways in which the political opinion ground of the Refugee Convention has been applied to some women’s forced marriage claims in the United Kingdom. Women’s gender-based persecution claims are often categorized under the membership of a particular social group ground and the political opinion ground remains an underused and narrowly interpreted category. Drawing on feminist critiques, it is argued that this demonstrates an underlying gendered politics, and that the political opinion ground can indeed be relevant to women’s asylum claims involving forced marriage. Women’s resistance to their gendered oppression in the form of forced marriage should be seen as a valid expression of their political opinion and agency.

El refugio por razones de género

The traditional principles on which the right of refugees is based have undergone a significant transformation due, in no small measure, to the asylum claims presented by women fleeing their countries as a result of gender-based persecution. The purpose of this paper is to discuss the extent to which this reality has been incorporated into national and international legislation, the interpretations that have followed, and to analyse some of the foundational legal instruments of the Refugee Law such as the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, as well as Chilean legislation. From this analysis, we gather that, in the absence of initial recognition of persecution on grounds of gender, this has been gradually implemented in international guidelines and internal legal systems via their refugee Laws, as in the case of Chile.

No Man's Land: Does the Gender Crimes Framework of the ICC Statute Cover Gender Basedd Targeting through Signature Drone Strikes?

The Rome Statute establishing the International Criminal Court has been hailed as a major advancement in the field of international law on the aspect of sexual and gender based crimes. For the first time ever, there is an international treaty that explicitly criminalizes sexual and gender based offences as standalone offences. As the experience of international criminal tribunals has developed over the years, the nature and extent of deliberate crimes against women — have increased in scale and intensity. The incorporation of gender based crimes in the finalized Rome Statute is thus an acknowledgement of the disparate nature of suffering that gender-specific discrimination and harm can cause. However while these are indeed sexual offenses, to categorize them as gender based crimes is a misnomer. Except ‘forced pregnancy’ which has an inbuilt biological bias (that it can be carried out only against women and not men), the remaining set of sexual offenses can be committed against both men and women and are therefore gender neutral. This paper using the context of targeted killings/drone strikes in the Global War on Terror (GWOT) proposes to demonstrate how the existing framework of gender and sexual crimes under the Rome Statute is not ‘gender neutral’ and focuses only on specific types of sexual offences, applicable largely to women, and thus deficient to meet the evolving needs of modern warfare. It argues that while the impact of drone strikes on civilian population is highly gender specific (both in terms of targeting and aftermath) — drone strikes fall outside the existing ‘gender based’ crimes framework of the ICC Statute simply because they do not arise out of sexual violence. While drone strikes may likely be prosecuted as war crimes, the war crimes framework under the ICC Statute does not present any specific provision which may be used to criminalize the harm to civilian population resulting from signature drone strikes, which are inherently gender biased. The only other gender based offense in the ICC statute is the crime against humanity of gender-based persecution, which however is inapplicable to the case of drone strikes. This lacuna thus creates “an accountability vacuum” which makes redress difficult. The paper concludes with a possible set of recommendations and suggestions to overcome these limitations.

Marginal Women, Marginal Rights: Impediments to Gender-Based Persecution Claims by Asylum-seeking Women in Australia

Women’s experiences of violence often remain invisible or discounted in asylum law and practice. Gender is absent as an overt ground for protection under the Refugee Convention and readings of the Convention have commonly excluded it. Although Australia’s Department of Immigration and Citizenship (DIAC) has acknowledged women’s special protection needs with instruments such as the Guidelines on Gender Issues for Decision Makers (DIAC 1996, 2010), the article investigates whether these are translating into practice. It examines ways in which women’s claims for asylum because of gender-based persecution (GBP) may be impeded in Australia. Drawing on feedback from major stakeholder groups, including asylum advocates, asylum seeking women, and DIAC, we suggest that at the time of our fieldwork (2005/2006) appropriate consideration of claims of GBP was generally still not evident within DIAC. We identify barriers to both the emergence and consideration of claims and suggest ways DIAC might improve gender sensitivity in the processing of asylum claims. Journal of Refugee Studies Vol. 24, No. 2 The Author 2011. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com

Response to 'Marginal Women, Marginal Rights: Impediments to Gender-Based Persecution Claims by Asylum-Seeking Women in Australia'

Response to 'Marginal Women, Marginal Rights: Impediments to Gender-Based Persecution Claims by Asylum-Seeking Women in Australia'

Rejoinder: Removing Barriers to the Emergence and Assessment of Claims of Gender-Based Persecution by Asylum Seekers in Australia

We are pleased that, in keeping with the recommendations of the Palmer Report (2005), which drew attention to the Department of Immigration and Citizenship's (DIAC) ‘lack of openness and transparency’, DIAC has chosen to respond to an invitation to comment on our critique of their processing of women who may be eligible to claim asylum on grounds of gender-based persecution (GBP). DIAC's main criticisms of our research are methodological. In reply, we think it is important to highlight the discussions in refugee studies in the last decade about the merits of different methodological approaches to research, including the valuable role to be played by various forms of qualitative research (see for example Journal of Refugee Studies20(2), 2007). DIAC officials declined an invitation to be interviewed for our research, and chose to participate via a written questionnaire. We are not certain how DIAC approached this questionnaire response; we can only assume that it represents the most accurate description of their practices.

Becoming a Refugee Woman: Gender-Based Persecution and Women Asylum Seekers under International Refugee Law

In this essay, I seek to examine the idea of a ‘refugee’ as understood within the international refugee law framework which excludes the various forms of gender-based persecution faced by women. By virtue of being gender-neutral, international refugee law fails to address the differential impact of laws and policies on men and women. Despite an emerging a body of law in Western states that consider various forms of physical, sexual and family violence while assessing women’s asylum claims, it will be significant to discuss the politics of such progressive interpretation of refugee law on one hand and restrictive asylum policies, on the other. Another interesting aspect of this debate is the general hesitation in accepting women as politically active persons by most refugee-receiving states. The lacuna in the law is clear but its solution is not. Whether the solution lies in the amendment of the ‘refugee’ definition by recognising women as a ‘particular social group’ in the 1951 Convention or whether a larger debate needs to be initiated with regard to providing refugees the political space to exercise their rights in their host countries, shall also be briefly explored.

Gender-based Persecution and US Asylum Policy

Abstract
 Over the past decades, gender-based persecution has moved into the forefront of immigration policy debate in the US. Beginning in the 1980s, recognition of the special circumstances women refugees face has slowly dawned on policy-makers and academics alike. The discussion of women refugees’ rights comes at a pivotal historical moment in US history; women now make up the majority of refugees, but restrictions have become stricter since 9/11. The current process, designed with the standard of the male refugee in mind, adds extra difficulties for female refugees making their asylum claims and disproportionately penalizes them for an array of reasons. Recent court cases indicate indecision among US justices about whether or not gender-based persecution constitutes legitimate grounds for admittance. The international implications of progressive policy change show the potential for both negative political consequences and positive human rights contributions on a global scale. To remedy the current stalemate in the fight to include gender-based persecution in asylum law, the United States could look to Canada for a progressive model applied to a similar legal system.

Gender and the Evolving Refugee Regime

In promulgating the 1990 Policy on Refugee Women and the 1991 Guidelines on the Protection of Refugee Women, the United Nations High Commissioner for Refugees took a universalistic position that gender-based persecution is an abuse of fundamental human rights. The United Nations High Commissioner for Refugees argued that when Governments are unwilling or unable to protect women from such persecution, the international community should provide asylum. This article argues that the position taken by the United Nations High Commissioner for Refugees in the early 1990s was fully consistent with the ways in which the refugee regime had evolved during the 20th century. Moreover, it has paved the way for similar approaches to be taken to new forms of displacement that necessitate protection responses. In this respect, it argues that the absence of meaningful protection by the State should be a core criterion in determining ways in which the refugee regime (meaning both laws and institutions responsible for refugees) can address the likelihood of new forms of displacement.

Promoting Passage Through Care: How to Best Serve Undocumented Immigrants With HIV

Latinos on the United States of the U.S.-Mexican border often refer to undocumented newcomers as arriving from otro lado. In todays globalizing world the other side is a conceptual state more than a physical location. As services and goods flow freely among nations at unprecedented rates people too are moving across borders. The United States and society in general can make substantial advances in the realm of human rights by negotiating safe passage for women fleeing gender-based persecution or for HIV-infected men who cannot receive adequate treatment in their country of origin. Although there are no simple answers or policy solutions to immigrant health care issues an attitude promoting trust and care may help others in this society to become empowered. Truly it is the responsibility of all health care workers to care for patients without reference to immigration status. The arguments that follow are not intended to persuade health care workers to negotiate an individual patients legal status. This would be unwise. Instead the term passage signifies the transition from being born en el otro lado to living as a new member of this democratic society. In this regard the commentary seeks to address the important issues of noncitizens living with HIV infection and how health care workers can partner with these individuals to promote individual health and the public good. (excerpt)

Gender-Related Refugee Claims: Expanding the Scope of the Canadian Guidelines

In 1993 the Immigration and Refugee Board of Canada adopted guidelines entitled ‘Women Refugee Claimants Fearing Gender-Related Persecution’. The Guidelines represent a cutting edge approach and have helped to guarantee a refugee determination process for women refugees that is more sensitive to gender-related claims of asylum. However, the author demonstrates that the concept of gender-based persecution, as it is presently defined, makes it difficult for members of the Board to systematically evaluate all types of gender-related persecution, to which certain men and women are subjected. The author examines asylum claims based on sexual orientation and identity, as well as those based on persecution specifically inflicted upon men, and argues that the gender-specific analytical framework adopted by the Immigration and Refugee Board is relevant to these cases. The author concludes that change is needed in the form of a more clearly defined social constructionist interpretation of gender. Clearly, defining ‘gender’ as a socially constructed concept would reveal the gender-specific factors that interfere with the rights of certain men and would make more visible the links between gender and other causes of persecution, like sexual orientation.

Gender, conflict, and migration

Series Introduction Introduction - Navnita Chadha Behera Muktir Gaan, the Raped Woman and Migrant Identities of the Bangladesh War - Nayanika Mookherjee Speaking Violence - Furrukh A Khan Pakistani Women's Narratives of Partition Violence and Home - Saba Gul Khattak Afghan Women's Experience of Displacement Migration/Dislocation - Urvashi Butalia A Gendered Perspective Women after Partition - Anasua Basu Raychaudhury Remembering the Lost World in a Life without Future Between Tamil and Muslim - Darini Rajasingham-Senanayake Women Mediating Multiple Identities in a New War Contesting 'Infantalization' of Forced Migrant Women - Rita Manchanda Gender, Borders and Transversality - Mary O'Kane The Emerging Women's Movement in the Burma-Thailand Borderlands Can the Women Flee? Gender-Based Persecution, Forced Migration and Asylum Law in South Asia - Oishik Sircar Gender-Based Persecution - Anthony Good The Case of South Asian Asylum Applicants in the United Kingdom Index

The Possibility of Application of "Gender-based Persecution" Concept in Refugee Protection : Case of Japan and Canada

The Possibility of Application of "Gender-based Persecution" Concept in Refugee Protection : Case of Japan and Canada

Protectors and Victims in the Gender Regime of Asylum

Gender-based persecution is one way that immigrant women can seek political asylum and gain legal entry into the United States. Gender-based persecution includes harm such as female circumcision, rape, domestic violence, coercive family planning, honor killings, forced marriage, and repressive social norms. Legal scholars and immigrant advocates herald gender-based persecution laws and policies for advancing female asylum seekers' ability to gain asylum based on gendered harm. While genderbased persecution laws and policies offer optimism for women fleeing gendered harm, the implementation of these laws and policies may reproduce victimization for migrant women. A study of the implementation of gender-based persecution laws and policies makes visible assumptions about masculinity, femininity, sexuality, essentialism, women's agency, and authority that asylum seekers, immigration attorneys, service providers, immigration judges, and asylum officers engage. In this article, I find that protectionism and victimization, based on insecurity and fear, structure the legal institution of asylum.