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LOBBY EUROPEEN DES FEMMES
EUROPEAN WOMEN’S LOBBY |
May 2002
CONTRIBUTION FROM THE EUROPEAN WOMEN’S LOBBY TO THE COMMISSION’S PROPOSAL FOR A COUNCIL DIRECTIVE ON “LAYING DOWN MINIMUM STANDARDS FOR THE QUALIFICATION AND STATUS OF THIRD COUNTRY NATIONALS AND STATELESS PERSONS AS REFUGEES, IN ACCORDANCE WITH THE 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES AND THE 1967 PROTOCOL, OR AS PERSONS WHO OTHERWISE NEED INTERNATIONAL PROTECTION”
The European Women’s Lobby (EWL) welcomes the Commission’s
proposal for a Council Directive “laying down minimum standards for
the qualification and status of third country nationals and stateless persons
as refugees, in accordance with the 1951 Convention relating to the Status of
Refugees and the 1967 Protocol, or as persons who otherwise need international
protection”
(hereafter referred to “the definition of a refugee”) within the
context of the European Union, given that all Member States have ratified the
United Nations (UN) 1951 Geneva Convention on the Status of Refugees and the
corresponding protocol of 1967.
The EWL ran a
one-year European Campaign “Women Asylum Seekers” throughout 2001,
which focused on specific criteria to enable women to seek and be granted asylum
on the basis of their experience, as women, of persecution, which can be
interpreted within the existing criteria stipulated in the 1951 Geneva
Convention. The EWL Campaign
highlighted examples of gender-based persecution, including, sexual violence: rape
as a weapon of war; practices that are carried out in the name of
“culture”, such as honour killings, female genital mutilation,
stoning to death for presumed adultery and forced marriage, all of which are
not explicitly mentioned or interpreted as legitimate reasons for seeking
protection when examining claims for asylum by women. The basis for these examples can also be found in the Convention
on the Elimination of all forms of Discrimination Against Women (CEDAW Convention, adopted by the United Nations
in 1979), which shows the unwillingness of the State to protect women from
persecution. The following articles are of particular interest in linking
gender-based persecution:
States party to
CEDAW shall:
Article 2 (f):
Take all appropriate measures, including legislation, to modify or
abolish existing laws, regulations, customs and practices which constitute discrimination
against women.
Article 6:
States Parties shall take all appropriate measures, including
legislation, to suppress all forms of traffic in women and exploitation of the prostitution
of women.
Article 16 (1) (b)
..[women and men have] The same right freely to choose a spouse and to enter
into marriage only with their
free and full consent
The EWL therefore, welcomes the draft directive and commends the overall
spirit in which the draft is written as it clearly sets out to place the issue
of asylum, refugee status and international protection within a human rights
perspective.
The EWL notes that two fundamental issues which pose barriers for
women’s access to asylum, and which are being addressed within the draft
directive, namely: the threat of persecution (or well founded fear) can emanate
from non-state actors where the State is unable or unwilling to provide
effective protection (Article 9) and that persecution can be the cause of
gender-specific means (Article 7, paragraph 4).
Furthermore, the EWL welcomes the directive's proposal on specific rules for assessing the claims of women and children (Articles 11 and 12) and the duty of Member States to provide appropriate medical and other assistance to persons who have been subjected to torture, rape and other serious forms of psychological, physical and sexual violence (Article 27) and the granting of rights, such as access to employment (Article 24), education and social welfare (Article 25) and other rights (accommodation, freedom of movement, integration) stipulated in further articles of the Directive.
The EWL wants to highlight the following five areas of concern:
These include:
1) Interpretation of the Geneva Convention and Subsidiary forms of protection: while the draft Directive clearly states that some people requiring international protection do not fall within the criteria of the Geneva Convention, and therefore proposes a "secondary" protection status, the EWL believes that women claiming asylum on gender-based persecution grounds may be automatically assigned to the subsidiary category given that no mechanism is proposed within the draft Directive to assess the concept of political persecution to guide a more thorough interpretation of the criteria of the Geneva Convention.
For example, the draft Directive proposes three situations in which subsidiary forms of protection can be considered, namely, torture or inhuman or degrading treatment or punishment; violation of a human right, sufficiently severe to engage Member State’s international obligations, and a threat to his/her life, safety or freedom as a result of indiscriminate violence arising in situations of armed conflict, or as a result of systematic or generalised violations of their human rights (Article 15). How, therefore, will women’s experience of rape be interpreted? Sometimes, rape is used as a form of torture, as the perpetrator knows that the victim will remain silent, on release from custody/prison because of the shame women feel. In other instances, rape is used as a systematic weapon of war, as a strategic tool to weaken the enemy. Therefore, adjudicators need very clear guidelines on how to interpret the Geneva Convention in relation to this and other gender specific forms of persecution experienced by women.
The issuing of gender sensitive guidelines is not standard practice in all of the EU Member States, but in countries where they do exist (notably the UK), there is a willingness to assess women’s claim for asylum on the basis of their experience of gender persecution and in relation to the Geneva Convention. The drafting of EU Gender Guidelines could be inspired by existing reference documents, namely, the United Nations “Guidelines on the Protection of Refugee Women[1]”, “Gender Guidelines for the Determination of Asylum Claims in the UK[2]”, “Women as Asylum Seekers: A legal Handbook[3]”
2) The Burden of proof – the draft Directive stipulates that the onus is on the claimant to provide the supporting evidence that constitutes “well founded fear”. However, due consideration should be given to the fact that evidence to support a woman’s claim to asylum may not be readily available due to her experience of persecution. For example, she may not be able to provide membership cards or newspaper cuttings relating to her direct or indirect political involvement. Equally, her claim for asylum could be based on violence within the family or the wider community for which information may also be difficult to locate.
3) The Internal Protection Alternative (Article 10): the draft Directive proposes to examine whether the applicant can be reasonably returned to another part of the country of origin, however, it should not be overlooked that women’s experience of persecution is often carried out within the private sphere (home, community) very often by men known to them, therefore, if she leaves and/or flees to seek protection, her status as a single, divorcee or separated women may cause her further discrimination, ostracism, or worse (even death). This factor should be taken into consideration when examining the displacement and/or return of women within or to their country of origin.
4) Data and Reporting: the draft Directive stipulates a number of reports that will focus on the implementation of the directive in the Member States. The reporting mechanism will ensure transparency and accountability but must be gender sensitive containing gender segregated data including the reasons why claims are made (from women and men) and especially the outcomes relating to the type of protection offered (refugee/subsidiary) and the reasons why. In this way, it will be more feasible to ascertain where the barriers persist and the gaps that need to be overcome as well as setting in place a mechanism to ensure that women are given the right to be asylum seekers in their own name, based on their own experience of persecution.
5) While the issue of "Safe country of origin[4]", is not specifically mentioned in this particular draft Directive, the EWL would nevertheless like to stress that this concept should never be used to determine how a refugee should be defined. This concept is used as one of the factors to assess whether international protection should be granted, and it is contrary to the individual right to asylum in general and prejudice women in particular, given the difficulties in linking gender-based persecution to the status and role of women in their country of origin. While interviewers and decision-makers should familiarise themselves with the role, status, customary laws and treatment of women in the country from which a woman had fled, this information should under no circumstances constitute criteria for determining whether a country is deemed “safe” or not. Reference should also be made to the CEDAW Convention, to determine whether this has been signed and ratified by the country of origin.