Although the Geneva Convention remains the reference framework in the field of asylum law, it is sometimes criticized for having a “narrow and partisan” conception of the protection of asylum seekers, as its imprecise definitions have allowed some states to make arbitrary arrangements regarding the implementation of asylum legislation and the recognition of refugee status. The very definition is “vague” and has been designed to protect a “particular group” of individuals, thus excluding many.
States have attempted to ‘objectively’ assess the various political situations in countries of origin, including respect for fundamental rights, to decide whether an asylum seeker’s fear of persecution is real. This is problematic because such assessments of a country’s political situation do not generally reflect the persecution experienced by certain groups or individuals within that State. As a result, “such generalized judgments about the human rights situation in different countries of origin often ignore specific types of persecution, and in particular gender-based persecution.”
On the other hand, the 1951 Convention and other international treaties on refugees and asylum are based on gender-neutral principles. However, some feminist critics argue that these texts have been primarily inspired by male models of persecution, which makes them incompatible with the efficient protection of women.
These treaties are, in fact, full of fundamentally gendered attitudes and procedures. They, therefore, do not adequately protect women, as the persecution experienced by women is not recognized as such because it is different and causes. Refugee and asylum law has always been interpreted with the idea that asylum seekers are predominantly male, which has reflected and amplified the gender discrimination already existing in European countries. Despite a desire for gender neutrality, the Geneva Convention was primarily written by men who denied that in many countries, women are persecuted for the sole reason of being women.
The Geneva Convention was drafted in a systemic historical context of the Second World War and the beginning of the Cold War. The provisions made by Western countries were mainly aimed at individuals fleeing the Soviet Union. It was inconceivable at the time to imagine an influx of people seeking asylum as a result of conflicts, wars, or natural disasters. Thus, Jérôme Valluy and Jane Freedman argue in their book on women’s persecution that “such limitations on the refugee definition continue to have important implications today, and imply that many women face difficulties in obtaining refugee status.”
This was reflected in the negotiations leading up to the drafting of the Convention, during which gender was mentioned only once when the Yugoslav delegate suggested that the term ‘sex’ be included in Article 3, which states that the application of the Convention shall be made “without discrimination as to race, religion or country of origin.” This proposal was quickly dropped because the leaders considered gender equality a national, not an international, issue. At the time, Heuven Goedhart, the High Commissioner, even argued that he had doubts about the possibility of “cases of persecution based on sex.”
As a result, these ideas on gender have to be seen in a historical context – which is now quite different – during which debates on gender equality were almost absent from international politics. This androcentric model of thinking persists and still marks the implementation of the Geneva Convention today. Therefore, it is necessary to reinterpret it in the light of current circumstances, as a restrictive interpretation might render it obsolete.
Today, it is also possible to establish that the negation of women’s experiences in the Convention is a direct consequence of the division between the public sphere, attributed to men, and the private sphere, attributed to women. Many feminist critics have pointed out that “liberal rights discourses” have exacerbated this division between the public and private spheres as they have neglected essential parts of women’s lives and discrimination in the home, thus hindering the possibility of adequately protecting them. In this regard, EU Member States have long refused to grant international protection to asylum seekers for persecution not carried out by state agents because this falls outside the scope of the Geneva Convention, thus excluding many women’s experiences of persecution.
It was only with the 2004 EU Directive that it was established that non-state agents could also be the perpetrators of persecution. This directive instructed the governments of the various member states to take account of persecution in the private sphere in the context of Article 6. Therefore, it is only a short time since European countries recognized that private actors could also commit the persecutions mentioned in the Convention. However, some governments persist in adopting a narrow interpretation of these guidelines and force asylum seekers to prove that not only do they have a well-founded fear of persecution but that they cannot rely on protection by the state authorities in their country of origin.
This is one of the factors that explains why the public-private divide in the interpretation of the Convention is an underlying problem, which undermines the gender neutrality of the Convention and results in the creation of circumstances in which the activities of women and what has been done to them fall outside the scope of refugee law.
Many women experiencing domestic violence have been denied refugee status when they could not count on any support or protection from the authorities in their country of origin. This illustrates that such abuse committed in the domestic sphere by private actors is recognized as less severe than other forms of persecution committed in the public sphere. As a result, according to this interpretation, domestic and sexual violence is seen as a ‘normality’ that structures gender relations and is not a ground for asylum.
Yet many studies have exposed the widespread use of sexual violence as an “instrument of political oppression” during conflicts, including the current war in Syria. The International Federation for Human Rights (FIDH) interviewed 80 Syrian women in different camps in Jordan in 2012. All of them reported having been victims or witnesses of sexual violence and said that the fear of being raped had pushed them to leave Syria. One Syrian woman explained that “rape is used as a means of torture on Syrian women because, in (their) culture, (their) religion, the female body is considered sacred.”
The impact of sexual abuse on women is severe and multifaceted. It can lead to numerous short- and long-term health problems, such as unwanted pregnancies or mental health problems, including anxiety, post-traumatic stress disorder, and depression. In addition to these health risks, a refugee woman who has been sexually abused becomes the target of stigmatization within society or her social circle. Indeed, Syrian women who have been victims of such abuse express the social exclusion that has followed. Many women are forced by their families to marry to ‘save the family honor.’ Others are very often stigmatized and forced to keep silent about the acts of being victims. Others are persecuted, leading to their murder by a family member for “bringing dishonor. “
Nour, a Syrian woman who was raped by government forces, says: “The injustice for women is to be punished by society and the regime. The regime violates us, and society rejects us. We are caught between traditions on one side and the regime on the other. And we die caught between the two”. Despite these disastrous consequences, both physical and psychological, rape is not recognized as a “form of serious harm” under the 1951 Convention, and women victims of this type of abuse do not necessarily receive international protection.
The distinction between private and public means that much of women’s experience is denied and not considered in the asylum process. For example, forced marriages, genital mutilation, and sexual violence, geographically widespread and profound psychological and physical consequences for women, are not recognized as grounds for seeking asylum. These persecutions experienced by women, such as fleeing from female circumcision or forced marriages, are instead attributed to a “cultural difference.” This pretext justifies discriminatory procedures against women during the asylum process.
The extent to which this “cultural difference” needs to be protected is complicated because it can become underlying support for practices that infringe on women’s rights. Many women asylum seekers have been denied international protection because the need for “recognition of cultural differences” outweighed their suffering persecution. This “cultural relativism” is used as a pretext by European states who are afraid of opening the door to a massive influx of female asylum seekers if they recognize that “what these women are experiencing is indeed persecution and not simply a widely practiced and therefore acceptable local custom.”
This distinction between the public and private spheres has other significant consequences for asylum seekers. Because of the ‘sexual division of labor, women’s actions are not considered political in the same way as men’s. Men are more legitimately granted international protection because of persecution for their political views. But political activity is not simply “belonging to a political party, (…) (or) standing for election to a representative body”, as all these activities are almost a monopoly of men, while women are excluded from them. Many other forms of political action are less recognized in the field of asylum.
Women’s political acts and roles are often less visible than men’s, such as sheltering people in secret, feeding them, caring for them, or acting as messengers. Moreover, refusing to submit to norms that restrict their freedom, such as a dress code, is often seen as a private matter, whereas “women who choose to disobey these rules and laws are engaging in a highly political act.” In contrast, their husbands/partners, who are considered “the active member of the couple in terms of political action,” may benefit from the status because their political acts are identified as belonging to the public sphere.
Another weakness of the 1951 Convention is its very vague definition of ‘persecution,’ which has opened the door to very different interpretations in different situations. These have tended to “reinforce gender inequalities that already existed in different countries, by failing to recognize violations of women’s rights and the persecution they entail.” Jane Freedman explains that many jurists have studied the meaning of persecution as set out in the Geneva Convention. They have found that it incorporates the concepts put forward in the Universal Declaration of Fundamental Rights. However, the latter was mainly formulated by men (often from a privileged background) who thus translated their own experiences into the texts, ignoring the interests of women.
Bunch wrote in 1995 that “the dominant definition of human rights and the mechanisms for enforcing them in the world today are those that relate primarily to the kinds of violations that the men who first formulated the concept feared most.” Thus, as it is men who have decided on the grounds of persecution for granting refugee status, gender-based violence – sexual violence, forced marriages, genital mutilation, domestic abuse, etc. – is not considered. Yet, such violence is not a punctual event but a consequence of being a woman. It is also criticized for ignoring the diversity among women and perpetuating “a Western, ethnocentric model of rights that underpins the idea of Western cultural superiority. “
Finally, the international human rights texts on which the term ‘persecution’ is defined are based on the concept of violation of rights. Nevertheless, in situations where a denial of rights is at stake, such as “those cases where rights are denied because of widespread and structural gender inequalities, “these texts offer only limited compensation or protection, and this is the case for gender inequalities. For this reason, the definitions of persecution under the Convention have resulted in structural inequalities between men and women. They do not consider “violations of women’s rights and resulting persecution.”
