GUIDELINES ON INTERNATIONAL PROTECTION:
Gender-Related Persecution within the context of
Article 1A(2)
of the 1951 Convention and/or its 1967 Protocol
relating to the Status of Refugees
UNHCR issues these Guidelines
pursuant to its mandate, as contained in the Statute of the Office of the
United Nations High Commissioner for Refugees, in conjunction with Article 35
of the 1951 Convention relating to the Status of Refugees and Article II of its 1967
Protocol. These Guidelines complement the UNHCR
Handbook on Procedures and Criteria for Determining Refugee Status under the
1951 Convention and the 1967 Protocol relating to the Status of Refugees
(Reedited, Geneva, January 1992). They further replace
UNHCR’s Position Paper on Gender-Related Persecution (Geneva, January
2000) and result from the Second Track of the Global Consultations on
International Protection process which examined this subject at its expert
meeting in San Remo in September 2001.
These Guidelines are intended to provide legal
interpretative guidance for governments, legal practitioners, decision-makers
and the judiciary, as well as UNHCR staff carrying out refugee status
determination in the field.
1.
“Gender-related
persecution” is a term that has no legal meaning per se. Rather, it is used to encompass the
range of different claims in which gender is a relevant consideration in the
determination of refugee status.
These Guidelines specifically focus on the interpretation of the refugee
definition contained in Article 1A(2) of the 1951 Convention relating to the
Status of Refugees (hereinafter
“1951 Convention”) from a gender perspective, as well as propose some procedural
practices in order to ensure that proper consideration is given to women
claimants in refugee status determination procedures and that the range of
gender-related claims are recognised as such.
2.
It is an
established principle that the refugee definition as a whole should be
interpreted with an awareness of possible gender dimensions in order to
determine accurately claims to refugee status. This approach has been endorsed by the General Assembly, as
well as the Executive Committee of UNHCR’s Programme.[1]
3.
In order
to understand the nature of gender-related persecution, it is essential to
define and distinguish between the terms “gender” and
“sex”. Gender refers
to the relationship between women and men based on socially or culturally
constructed and defined identities, status, roles and responsibilities that are
assigned to one sex or another, while sex is a biological determination. Gender is not static or innate but
acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by
either women or men, although due to particular types of persecution, they are
more commonly brought by women. In
some cases, the claimant’s sex may bear on the claim in significant ways
to which the decision-maker will need to be attentive. In other cases, however, the refugee
claim of a female asylum-seeker will have nothing to do with her sex.
Gender-related claims have typically encompassed, although are by no means
limited to, acts of sexual violence, family/domestic violence, coerced family
planning, female genital mutilation, punishment for transgression of social
mores, and discrimination against homosexuals.
4.
Adopting a gender-sensitive interpretation of the 1951
Convention does not mean that all women are automatically entitled to refugee
status. The refugee claimant must
establish that he or she has a well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group
or political opinion.
II. SUBSTANTIVE ANALYSIS
A. BACKGROUND
5.
Historically,
the refugee definition has been interpreted through a framework of male
experiences, which has meant that many claims of women and of homosexuals, have
gone unrecognised. In the past decade, however, the analysis and understanding
of sex and gender in the refugee context have advanced substantially in case
law, in State practice generally and in academic writing. These developments have run parallel
to, and have been assisted by, developments in international human rights law
and standards,[2] as well as
in related areas of international law, including through jurisprudence of the
International Criminal Tribunals for the former Yugoslavia and Rwanda, and the
Rome Statute of the International Criminal Court. In this regard, for instance, it should be noted that
harmful practices in breach of international human rights law and standards
cannot be justified on the basis of historical, traditional, religious or
cultural grounds.
6. Even though gender is
not specifically referenced in the refugee definition, it is widely accepted
that it can influence, or dictate, the type of persecution or harm suffered and
the reasons for this treatment.
The refugee definition, properly interpreted, therefore covers
gender-related claims. As such,
there is no need to add an additional ground to the 1951 Convention definition.[3]
7.
In
attempting to apply the criteria of the refugee definition in the course of
refugee status determination procedures, it is important to approach the
assessment holistically, and have regard to all the relevant circumstances of
the case. It is essential to have
both a full picture of the asylum-seeker’s personality, background and
personal experiences, as well as an analysis and up-to-date knowledge of
historically, geographically and culturally specific circumstances in the
country of origin. Making generalisations about women or men is not helpful and
in doing so, critical differences, which may be relevant to a particular case,
can be overlooked.
8.
The
elements of the definition discussed below are those that require a
gender-sensitive interpretation.
Other criteria (e.g. being outside the country of origin) remain, of
course, also directly relevant to the holistic assessment of any claim. Throughout this document, the use of
the term “women” includes the girl-child.
9.
What amounts to a well-founded fear of persecution will depend
on the particular circumstances of each individual case. While female and male
applicants may be subjected to the same forms of harm, they may also face forms
of persecution specific to their sex. International human rights law and
international criminal law clearly identify certain acts as violations of these
laws, such as sexual violence, and support their characterisation as serious
abuses, amounting to persecution.[4] In this sense, international law can
assist decision-makers to determine the persecutory nature of a particular
act. There is no doubt that rape
and other forms of gender-related violence, such as dowry-related violence,
female genital mutilation, domestic violence, and trafficking,[5]
are acts which inflict severe pain and suffering – both mental and
physical – and which have been used as forms of persecution, whether
perpetrated by State or private actors.
10.
Assessing a law to be persecutory in and of itself
has proven to be material to determining some gender-related claims. This is especially so given the fact
that relevant laws may emanate from traditional or cultural norms and practices
not necessarily in conformity with international human rights standards. However, as in all cases, a claimant
must still establish that he or she has a well-founded fear of being persecuted
as a result of that law. This
would not be the case, for instance, where a persecutory law continues to exist
but is no longer enforced.
11.
Even though a particular State may have prohibited a
persecutory practice (e.g. female genital mutilation), the State may
nevertheless continue to condone or tolerate the practice, or may not be able
to stop the practice effectively.
In such cases, the practice would still amount to persecution. The fact that a law has been enacted to
prohibit or denounce certain persecutory practices will therefore not in itself
be sufficient to determine that the individual’s claim to refugee status
is not valid.
12.
Where the penalty or punishment for non-compliance
with, or breach of, a policy or law is disproportionately severe and has a
gender dimension, it would amount to persecution.[6] Even if the law is one of general
applicability, circumstances of punishment or treatment cannot be so severe as
to be disproportionate to the objective of the law. Severe punishment for women who, by breaching a law,
transgress social mores in a society could, therefore, amount to persecution.
13.
Even where laws or policies have justifiable objectives,
methods of implementation that lead to consequences of a substantially
prejudicial nature for the persons concerned, would amount to persecution. For example, it is widely accepted that
family planning constitutes an appropriate response to population pressures. However, implementation of such
policies, through the use of forced abortions and sterilisations, would breach
fundamental human rights law. Such
practices, despite the fact that they may be implemented in the context of a
legitimate law, are recognised as serious abuses and considered persecution.
14. While it is generally
agreed that ‘mere’ discrimination may not, in the normal course,
amount to persecution in and of itself, a pattern of discrimination or less
favourable treatment could, on cumulative grounds, amount to persecution and
warrant international protection.
It would, for instance, amount to persecution if measures of
discrimination lead to consequences of a substantially prejudicial nature for
the person concerned, e.g. serious restrictions on the right to earn
one’s livelihood, the right to practice one’s religion, or access
to available educational facilities.[7]
15.
Significant to gender-related claims is also an analysis of
forms of discrimination by the State in failing to extend protection to individuals
against certain types of harm. If the State, as a matter of policy or practice,
does not accord certain rights or protection from serious abuse, then the
discrimination in extending protection, which results in serious harm inflicted
with impunity, could amount to persecution. Particular cases of domestic violence, or of abuse for
reasons of one’s differing sexual orientation, could, for example, be
analysed in this context.
16.
Refugee claims based on differing sexual orientation contain
a gender element. A
claimant’s sexuality or sexual practices may be relevant to a refugee
claim where he or she has been subject to persecutory (including discriminatory)
action on account of his or her sexuality or sexual practices. In many such cases, the claimant has
refused to adhere to socially or culturally defined roles or expectations of
behaviour attributed to his or her sex.
The most common claims involve homosexuals, transsexuals or
transvestites, who have faced extreme public hostility, violence, abuse, or
severe or cumulative discrimination.
17.
Where homosexuality is illegal in a particular society, the
imposition of severe criminal penalties for homosexual conduct could amount to
persecution, just as it would for refusing to wear the veil by women in some
societies. Even where homosexual
practices are not criminalised, a claimant could still establish a valid claim
where the State condones or tolerates discriminatory practices or harm
perpetrated against him or her, or where the State is unable to protect
effectively the claimant against such harm.
Trafficking for the purposes of forced prostitution or
sexual exploitation as a form of persecution[8]
18.
Some trafficked women or minors may have valid claims to
refugee status under the 1951 Convention. The forcible or deceptive recruitment
of women or minors for the purposes of forced prostitution or sexual
exploitation is a form of gender-related violence or abuse that can even lead
to death. It can be considered a
form of torture and cruel, inhuman or degrading treatment. It can also impose serious restrictions
on a woman’s freedom of movement, caused by abduction, incarceration,
and/or confiscation of passports or other identify documents. In addition, trafficked women and
minors may face serious repercussions after their escape and/or upon return,
such as reprisals or retaliation from trafficking rings or individuals, real
possibilities of being re-trafficked, severe community or family ostracism, or
severe discrimination. In
individual cases, being trafficked for the purposes of forced prostitution or
sexual exploitation could therefore be the basis for a refugee claim where the
State has been unable or unwilling to provide protection against such harm or
threats of harm.[9]
Agents of Persecution
19.
There is scope within the refugee definition to recognise
both State and non-State actors of persecution. While persecution is most often perpetrated by the
authorities of a country, serious discriminatory or other offensive acts
committed by the local populace, or by individuals, can also be considered
persecution if such acts are knowingly tolerated by the authorities, or if the
authorities refuse, or are unable, to offer effective protection.[10]
20.
The
well-founded fear of being persecuted must be related to one or more of the
Convention grounds. That is, it must be “for reasons of” race,
religion, nationality, membership of a particular social group, or political
opinion. The Convention ground must be a relevant contributing factor, though
it need not be shown to be the sole, or dominant, cause. In many jurisdictions the causal link (“for
reasons of”) must be explicitly established (e.g. some Common Law States)
while in other States causation is not treated as a separate question for
analysis, but is subsumed within the holistic analysis of the refugee
definition. In many gender-related
claims, the difficult issue for a decision-maker may not be deciding upon the
applicable ground, so much as the causal link: that the well-founded fear of
being persecuted was for reasons of that ground. Attribution of the Convention ground to the claimant by the
State or non-State actor of persecution is sufficient to establish the required
causal connection.
21. In cases where there is
a risk of being persecuted at the hands of a non-State actor (e.g. husband,
partner or other non-State actor) for reasons which are related to one of the
Convention grounds, the causal link is established, whether or not the absence
of State protection is Convention related. Alternatively, where the risk of being persecuted at the
hands of a non-State actor is unrelated to a Convention ground, but the
inability or unwillingness of the State to offer protection is for reasons of a
Convention ground, the causal link is also established.[11]
22.
Ensuring that a gender-sensitive interpretation is given to
each of the Convention grounds is important in determining whether a particular
claimant has fulfilled the criteria of the refugee definition. In many cases, claimants may face
persecution because of a Convention ground which is attributed or imputed to
them. In many societies a
woman’s political views, race, nationality, religion or social affiliations,
for example, are often seen as aligned with relatives or associates or with
those of her community.
23.
It is also important to be aware that in many gender-related
claims, the persecution feared could be for one, or more, of the Convention
grounds. For example, a claim for
refugee status based on transgression of social or religious norms may be
analysed in terms of religion, political opinion or membership of a particular
social group. The claimant is not required to identify accurately the reason
why he or she has a well-founded fear of being persecuted.
24.
Race for the purposes of the refugee definition has been
defined to include all kinds of ethnic groups that are referred to as
“races” in common usage.[12] Persecution for reasons of race may be
expressed in different ways against men and women. For example, the persecutor
may choose to destroy the ethnic identity and/or prosperity of a racial group
by killing, maiming or incarcerating the men, while the women may be viewed as
propagating the ethnic or racial identity and persecuted in a different way,
such as through sexual violence or control of reproduction.
25. In certain States, the
religion assigns particular roles or behavioural codes to women and men
respectively. Where a woman does
not fulfil her assigned role or refuses to abide by the codes, and is punished
as a consequence, she may have a well-founded fear of being persecuted for
reasons of religion. Failure to
abide by such codes may be perceived as evidence that a woman holds
unacceptable religious opinions regardless of what she actually believes. A woman may face harm for her
particular religious beliefs or practices, or those attributed to her,
including her refusal to hold particular beliefs, to practise a prescribed
religion or to conform her behaviour in accordance with the teachings of a
prescribed religion.
26.
There is
some overlap between the grounds of religion and political opinion in
gender-related claims, especially in the realm of imputed political opinion. While religious tenets require certain
kinds of behaviour from a woman, contrary behaviour may be perceived as
evidence of an unacceptable political opinion. For example, in certain societies, the role ascribed to
women may be attributable to the requirements of the State or official
religion. The authorities or other
actors of persecution may perceive the failure of a woman to conform to this
role as the failure to practice or to hold certain religious beliefs. At the same time, the failure to
conform could be interpreted as holding an unacceptable political opinion that
threatens the basic structure from which certain political power flows. This is particularly true in societies
where there is little separation between religious and State institutions, laws
and doctrines.
Nationality
27. Nationality is not to
be understood only as “citizenship”. It also refers to membership of an ethnic or linguistic
group and may occasionally overlap with the term “race”.[13] Although persecution on the grounds of
nationality (as with race) is not specific to women or men, in many instances
the nature of the persecution takes a gender-specific form, most commonly that
of sexual violence directed against women and girls.
28. Gender-related claims
have often been analysed within the parameters of this ground, making a proper
understanding of this term of paramount importance. However, in some cases, the emphasis given to the social
group ground has meant that other applicable grounds, such as religion or
political opinion, have been over-looked.
Therefore, the interpretation given to this ground cannot render the
other four Convention grounds superfluous.
29. Thus, 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.
30. It follows that sex can
properly be within the ambit of the social group category, with women being a
clear example of a social subset defined by innate and immutable
characteristics, and who are frequently treated differently than men.[15] Their characteristics also identify
them as a group in society, subjecting them to different treatment and
standards in some countries.[16] Equally, this definition would
encompass homosexuals, transsexuals, or transvestites.
31. The size of the group
has sometimes been used as a basis for refusing to recognise
‘women’ generally as a particular social group. This argument has no basis in fact or
reason, as the other grounds are not bound by this question of size. There should equally be no requirement
that the particular social group be cohesive or that members of it voluntarily
associate,[17] or that every member of the group is at
risk of persecution.[18] It is well-accepted that it should be
possible to identify the group independently of the persecution, however, discrimination
or persecution may be a relevant factor in determining the visibility of the
group in a particular context.[19]
32. Under this ground, a
claimant must show that he or she has a well-founded fear of being persecuted
for holding certain political opinions (usually different from those of the
Government or parts of the society), or because the holding of such opinions
has been attributed to him or her.
Political opinion should be understood in the broad sense, to
incorporate any opinion on any matter in which the machinery of State,
government, society, or policy may be engaged. This may include an opinion as to gender roles. It would also include non-conformist
behaviour which leads the persecutor to impute a political opinion to him or
her. In this sense, there is not
as such an inherently political or an inherently non-political activity, but
the context of the case should determine its nature. A claim on the basis of political opinion does, however,
presuppose that the claimant holds or is assumed to hold opinions not tolerated
by the authorities or society, which are critical of their policies, traditions
or methods. It also presupposes
that such opinions have come or could come to the notice of the authorities or
relevant parts of the society, or are attributed by them to the claimant. It is not always necessary to have
expressed such an opinion, or to have already suffered any form of
discrimination or persecution. In
such cases the test of well-founded fear would be based on an assessment of the
consequences that a claimant having certain dispositions would have to face if
he or she returned.
33. The image of a
political refugee as someone who is fleeing persecution for his or her direct
involvement in political activity does not always correspond to the reality of
the experiences of women in some societies. Women are less likely than their male counterparts to engage
in high profile political activity and are more often involved in ‘low
level’ political activities that reflect dominant gender roles. For example, a woman may work in
nursing sick rebel soldiers, in the recruitment of sympathisers, or in the
preparation and dissemination of leaflets. Women are also frequently attributed with political opinions
of their family or male relatives, and subjected to persecution because of the
activities of their male relatives. While this may be analysed in the context
of an imputed political opinion, it may also be analysed as being persecution
for reasons of her membership of a particular social group, being her
“family”. These factors need to be taken into account in
gender-related claims.
34. Equally important for
gender-related claims is to recognise that a woman may not wish to engage in
certain activities, such as providing meals to government soldiers, which may
be interpreted by the persecutor(s) as holding a contrary political
opinion.
III. PROCEDURAL ISSUES[20]
35.
Persons raising
gender-related refugee claims, and survivors of torture or trauma in
particular, require a supportive environment where they can be reassured of the
confidentiality of their claim.
Some claimants, because of the shame they feel over what has happened to
them, or due to trauma, may be reluctant to identify the true extent of the
persecution suffered or feared. They may continue to fear persons in authority,
or they may fear rejection and/or reprisals from their family and/or community.[21]
36.
Against this
background, in order to ensure that gender-related claims, of women in
particular, are properly considered in the refugee status determination
process, the following measures should be borne in mind:
i.
Women asylum-seekers should be interviewed separately,
without the presence of male family members, in order to ensure that they have
an opportunity to present their case.
It should be explained to them that they may have a valid claim in their
own right.
ii.
It is essential that women are given information about
the status determination process, access to it, as well as legal advice, in a
manner and language that she understands.
iii.
Claimants should be informed of the choice to have
interviewers and interpreters of the same sex as themselves,[22]
and they should be provided automatically for women claimants. Interviewers and interpreters should
also be aware of and responsive to any cultural or religious sensitivities or
personal factors such as age and level of education.
iv.
An open and reassuring environment is often crucial to
establishing trust between the interviewer and the claimant, and should help
the full disclosure of sometimes sensitive and personal information. The
interview room should be arranged in such a way as to encourage discussion,
promote confidentiality and to lessen any possibility of perceived power
imbalances.
v.
The interviewer should take the time to introduce
him/herself and the interpreter to the claimant, explain clearly the roles of
each person, and the exact purpose of the interview.[23] The claimant should be assured that
his/her claim will be treated in the strictest confidence, and information
provided by the claimant will not be provided to members of his/her
family. Importantly, the
interviewer should explain that he/she is not a trauma counselor.
vi.
The interviewer should remain neutral, compassionate
and objective during the interview, and should avoid body language or gestures
that may be perceived as intimidating or culturally insensitive or
inappropriate. The interviewer
should allow the claimant to present his/her claim with minimal interruption.
vii.
Both ‘open-ended’ and specific questions
which may help to reveal gender issues relevant to a refugee claim should be
incorporated into all asylum interviews.
Women who have been involved in indirect political activity or to whom
political opinion has been attributed, for example, often do not provide
relevant information in interviews due to the male-oriented nature of the
questioning. Female claimants may
also fail to relate questions that are about ‘torture’ to the types
of harm which they fear (such as rape, sexual abuse, female genital mutilation,
‘honour killings’, forced marriage, etc.).
viii.
Particularly for victims of sexual violence or other
forms of trauma, second and subsequent interviews may be needed in order to
establish trust and to obtain all necessary information. In this regard, interviewers
should be responsive to the trauma and emotion of claimants and should stop an
interview where the claimant is becoming emotionally distressed.
ix.
Where it is envisaged that a particular case may give
rise to a gender-related claim, adequate preparation is needed, which will also
allow a relationship of confidence and trust with the claimant to be developed,
as well as allowing the interviewer to ask the right questions and deal with
any problems that may arise during an interview.
x.
Country of origin information should be collected that
has relevance in women’s claims, such as the position of women before the
law, the political rights of women, the social and economic rights of women,
the cultural and social mores of the country and consequences for
non-adherence, the prevalence of such harmful traditional practices, the
incidence and forms of reported violence against women, the protection
available to them, any penalties imposed on those who perpetrate the violence,
and the risks that a woman might face on her return to her country of origin
after making a claim for refugee status.
xi.
The type and level of emotion displayed during the
recounting of her experiences should not affect a woman’s
credibility. Interviewers and
decision-makers should understand that cultural differences and trauma play an
important and complex role in determining behaviour. For some cases, it may be
appropriate to seek objective psychological or medical evidence. It is unnecessary to establish the
precise details of the act of rape or sexual assault itself, but events leading
up to, and after, the act, the surrounding circumstances and details (such as,
use of guns, any words or phrases spoken by the perpetrators, type of assault,
where it occurred and how, details of the perpetrators (e.g. soldiers,
civilians) etc.) as well as the motivation of the perpetrator may be
required. In some circumstances it
should be noted that a woman may not be aware of the reasons for her abuse.
xii.
Mechanisms for referral to psycho-social counseling
and other support services should be made available where necessary. Best practice recommends that trained
psycho-social counselors be available to assist the claimant before and after
the interview.
37.
No documentary proof
as such is required in order for the authorities to recognise a refugee claim,
however, information on practices in the country of origin may support a
particular case. It is important
to recognise that in relation to gender-related claims, the usual types of
evidence used in other refugee claims may not be as readily available. Statistical data or reports on the
incidence of sexual violence may not be available, due to under-reporting of
cases, or lack of prosecution.
Alternative forms of information might assist, such as the testimonies
of other women similarly situated in written reports or oral testimony, of
non-governmental or international organisations or other independent research.
38. Depending
on the respective legal traditions, there have been two general approaches
taken by States to ensure a gender-sensitive application of refugee law and in
particular of the refugee definition.
Some States have incorporated legal interpretative guidance and/or
procedural safeguards within legislation itself, while others have preferred to
develop policy and legal guidelines on the same for decision-makers. UNHCR encourages States who have not
already done so to ensure a gender-sensitive application of refugee law and
procedures, and stands ready to assist States in this regard.
[1] In its Conclusions of
October 1999, No. 87 (n), the Executive Committee “not[ed] with
appreciation special efforts by States to incorporate gender perspectives into
asylum policies, regulations and practices; encourage[d] States, UNHCR and
other concerned actors to promote wider acceptance, and inclusion in their
protection criteria of the notion that persecution may be gender-related or
effected through sexual violence; further encourage[d] UNHCR and other
concerned actors to develop, promote and implement guidelines, codes of conduct
and training programmes on gender-related refugee issues, in order to support
the mainstreaming of a gender perspective and enhance accountability for the
implementation of gender policies.”
See also Executive Committee Conclusions: No.39, Refugee Women and
International Protection, 1985; No.73, Refugee Protection and Sexual Violence,
1993; No.77(g), General Conclusion on International Protection, 1995; No.79(o),
General Conclusion on International Protection, 1996; and No.81(t), General
Conclusion on International Protection, 1997.
[2] Useful texts include the Universal Declaration of
Human Rights 1948, the International Covenant on Civil and Political Rights
1966, the International Covenant on Economic, Social and Cultural Rights 1966,
the Convention on the Political Rights of Women 1953, the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, the
Convention on the Rights of the Child 1989, and in particular, the Convention
on the Elimination of All Forms of Discrimination Against Women 1979 and the
Declaration on the Elimination of Violence against Women 1993. Relevant regional instruments include
the European Convention on Human Rights and Fundamental Freedoms 1950, the
American Convention on Human Rights 1969, and the African Charter on Human and
Peoples’ Rights 1981.
[3] See Summary Conclusions
– Gender-Related Persecution, Global Consultations on International
Protection, San Remo Expert Roundtable, 6-8 September 2001, nos.1 and 3
(“Summary Conclusions – Gender-Related Persecution”).
[4] See UNHCR’s
Handbook, paragraph 51.
[5] See below at paragraph
18.
[6] Persons fleeing from
prosecution or punishment for a common law offence are not normally refugees,
however, the distinction may be obscured, in particular, in circumstances of
excessive punishment for breach of a legitimate law. See UNHCR’s Handbook, paragraphs 56 and 57.
[7] See UNHCR’s Handbook, paragraph 54.
[8] For the purposes of
these Guidelines, “trafficking” is defined as per article 3 of the
United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons,
especially Women and Children, supplementing the United Nations Convention
against Transnational Organised Crime, 2000. Article 3(1) provides that trafficking in persons means
“the recruitment, transportation, transfer, harbouring or receipt of
persons, by means of the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or benefits to achieve
the consent of a person having control over another person, for the purpose of
exploitation. Exploitation shall include, at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation, forced labour or
services, slavery or practices similar to slavery, servitude or the removal of
organs.”
[9] Trafficking for other purposes could also amount to persecution in a particular case, depending on the circumstances.
[10] See UNHCR’s Handbook,
paragraph
65.
[11] See Summary Conclusions
– Gender-Related Persecution, no.6.
[12] See UNHCR’s Handbook,
paragraph
68.
[13] See UNHCR’s Handbook,
paragraph
74.
[14] For more information, see
UNHCR’s Guidelines on International Protection: “Membership of a
particular social group” within the context of Article 1A(2) of the 1951
Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/02, 7 May
2002).
[15] See Summary Conclusions
– Gender-Related Persecution, no.5.
[16] See also Executive
Committee Conclusion No.39, Refugee Women and International Protection, 1985:
“States … 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”.
[17] See Summary Conclusions
- Membership of a Particular Social Group, Global Consultations on
International Protection, San Remo Expert Roundtable, 6-8 September 2001, no.4
(“Summary Conclusions – Membership of a Particular Social
Group”).
[18] See Summary Conclusions – Membership of a Particular Social Group, ibid., no.7.
[19] See Summary Conclusions - Membership of a Particular
Social Group, ibid., no.6.
[20] This Part has benefited
from the valuable guidance provided by various States and other actors,
including the following guidelines: Considerations for Asylum Officers
Adjudicating Asylum Claims from Women (Immigration and Naturalization
Service, United States, 26 May 1995); Refugee and Humanitarian Visa
Applicants: Guidelines on Gender Issues for Decision Makers (Department of
Immigration and Humanitarian Affairs, Australia, July 1996) (hereinafter
“Australian Guidelines on Gender Issues for Decision Makers”); Guideline
4 on Women Refugee Claimants Fearing Gender-Related Persecution: Update (Immigration and
Refugee Board, Canada,13 November 1996); Position on Asylum Seeking and
Refugee Women, (European Council on Refugees and Exiles, December 1997) (hereinafter
“ECRE Position on Asylum Seeking and Refugee Women”); Gender
Guidelines for the Determination of Asylum Claims in the UK (Refugee Women’s
Legal Group, July 1998) (hereinafter “Refugee Women’s Group Gender
Guidelines”); Gender Guidelines for Asylum Determination (National Consortium on
Refugee Affairs, South Africa, 1999); Asylum Gender Guidelines (Immigration Appellate
Authority, United Kingdom, November 2000); and Gender-Based Persecution:
Guidelines for the investigation and evaluation of the needs of women for
protection (Migration
Board, Legal Practice Division, Sweden, 28 March 2001).
[21] See also Sexual
Violence Against Refugees: Guidelines on Prevention and Response (UNHCR, Geneva, 1995)
and Prevention and Response to Sexual and Gender-Based Violence in Refugee
Situations
(Report of Inter-Agency Lessons Learned Conference Proceedings, 27-29 March
2001, Geneva).
[22] See also Executive
Committee Conclusion No.64, Refugee Women and International Protection, 1990,
(a) (iii): Provide, wherever necessary, skilled female interviewers in
procedures for the determination of refugee status and ensure appropriate
access by women asylum-seekers to such procedures, even when accompanied by
male family members.
[23] ibid., para.3.19.