Does refugee law adequately cater to the needs of persecuted women?

Does refugee law adequately cater to the needs of persecuted women?

Introduction

International law has developed to cater to human rights. In the past, International law was seen as only a means of settling disputes between states. However, over the recent years, the universal appreciation of human rights is relevant in safeguarding the rights and aspirations of individuals. In the protection and achievement of this aim, the International Convention of Civil and Political Rights (ICCPR), the International Covenant of Social, Economic and Cultural Rights (ICSECR), and the Universal Declaration of Human Rights (UDHR) were enacted to give life to these aspirations. Relevant to this spirit and aspirations, treaties, declarations, regional bodies, and the international community should ensure this is achieved. In line with this, refugee law is not exempt from this requirement. Refugee law is in place to protect and safeguard the rights of the people who find themselves in the refugee situation.

The international community has affirmed the principle that human beings shall enjoy their basic rights and freedoms short of any bias. This pronouncement is codified and as a result, states are bound to make considerations that promote refugees’ concern and which endeavor to assure refugees the most comprehensive likely exercise of these fundamental rights and freedoms. In furtherance of this, this paper shall delve into the interpretation and issue of whether women’s needs and rights are promoted and provided in Refugee law. This paper’s focus is narrowed to the plight of persecuted women, their rights under refugee law, highlighting the obligations of each actor to promote these rights. 

Defining Persecuted women in relation to refugee law

The Convention Relating to the Status of Refugees fails define persecution or those facing persecution but lists down grounds for persecution. These include factors such as; race, creed, nationality, association of a particular community, or political opinion. Persecution in terms of refugee law is defined as the continued or systemic failure by the State to offer protection to the citizen in relation to one of his/her core privileges protected by the international community. 

In defining persecution, a vital issue in this regard is the actions of a state and its domestic laws. It relates to how the laws in a state treat its citizens. As Hathaway argues, the person claiming protection should show that there should be a peril of a type of harm that would be uneven with the primary duty of protection owed by a government to its citizenry. Those who are persecuted seem under attack by the State. In most cases, the State has enacted unjust laws, and these may seem unfair to the refugee.

The main understanding is that refugee law should focus its attention on acts and omissions that result in the violation of the right to human dignity in any vital way and that the continued or systemic repudiation of fundamental human rights is the suitable standard. Also, many of these cases are results of violations of civil-political rights. These include instances where there are both treaties and international custom. A common feature in these states is that there are human rights violations in their state laws concerning the UDHR and no enforcement of the ICCPR. In some instances, the prosecution of these individuals by the State derogates from universal principles of human rights during a public emergency that impends the state’s life and the existence of which is officially declared. 

  • Women escaping harsh conditions during emergencies. 

A common characteristic about prosecuted women and refugees as a whole is the fact that they escape the harsh conditions of their home state. In some countries refugees and asylum seekers escape during state of emergencies or in the midst of a coup. During such emergencies, the civil-political rights infringed comprises of the right not to be illegally arrested and detained; equal protection of the law; impartial criminal trials; individual privacy; freedom of core undertaking; the right to exit and entry; the right to free political opinion, expression, assembly, and the right to form an association; the ability to participate in  governance; access to job opportunities without bias; and the right to vote. Based on this, the victims are in danger and leave the State that persecutes them to another nation to seek refuge or asylum. 

In the case of persecuted women, there is a catalogue of violations against them. In general, the harassment is, in spirit, is gauged by the level of strictness or significance of obvious injury that, in turn, is determined by the kind, nature, and scale of the human rights abuse that institute the injury. While women seeking asylum do flee oppression on the grounds of oppression of civil-political rights, there are periods where the main reasons of their immigration are blatantly entrenched in abuses of their socio-economic rights. These rights do not directly lead to a breach of the right to life but undermine their right to life. In emergency times, women are victims of frequent sexual assault, rape, and torture perpetrated civic actors alike that may have societal permission in some situations. 

  • Women escaping harsh cultural practices and domestic violence

Culture forms an integral part of an individual’s life. However, some cultural and traditional practices are not only detrimental to the health of the participant but also to the psychological and mental state of the person. A typical example of this is Female Genital Mutilation (FGM). Young women flee to other nations to avoid FGM which in their home state is a socially assented practice. An example of this is in African countries. In most parts of Somalia, FGM is a major issue. FGM is a harsh practice rooted in a majority of communities in Somalia. 

The WHO decried the negative impacts of the practice calling for criminalization and abolition of the harmful act. In its report the WHO detailed that girls who go through the process are prone to suffer from infections and life-threatening diseases as unsanitary methods are implemented. These young women are also under threat of complications during childbirth and contracting Sexually Transmitted Infections. Though there are attempts to tackle the issue there still a large number of victims who still suffer from these practices. 

Another socially acceptable practice women would escape is domestic violence against women. In this case married women are victims of wife battery and other forms f physical and psychological violence. A typical example is the Middle-East where societies in Pakistan commonly abuse and chastise women. The international community has been relatively silent in addressing the issue of honor killing and has in limited cases carried out actual actions against the practice. Women who are victims of such acts and those who live in fear of being subjected to the same flee to neighboring states or states which are not predominantly Islamic.

Women who refuse such practices are stigmatized by the community and alienated from their families. As a result, they cannot take part in necessary life-sustaining financial actions mainly based on their gender. This may also amount to persecution as it can be likened to where the women are discriminated against and persecuted based on race, belief, ethnicity or political affiliation.

  • Women persecuted for their sexual orientation

Sexual orientation and gender identity have over years been grey areas in terms of human rights protection. At the moment there is still no universal protection and recognition for sexual minorities. In most states there is still heavy criminalization of same sex marriage and there is minimal protection for the right of the LGBTIQ community. It should hence come as no surprise that transgender, intersex and lesbian women are under constant persecution. 

Persecution of transgender women is common in South Asia and most parts of the Middle-East. Transgender women in these states, mainly in South Asia are seen as impure. Heavily religious states in the Middle-East draw justification for persecution of transgender and lesbian women from religion. They claim that such acts are sins and against the natural order. These acts of animosity are aided by the fact that the laws in these countries offer no protection for sexual minorities. Therefore, women identifying as either transgender, lesbian or intersex are not afforded protection from state offices and bodies.

Rights of persecuted women under refugee law

Before discussing the critical issue relating to women’s treatment in refugee law, it is essential to understand what rights are at issue. Internationally, the Convention Relating to the Status of Refugees protects victims of such prosecution. Their rights and liberties are protected by the Convention and state obligations to uphold these people’s human rights as refugees. Therefore, persecuted people can enjoy the rights of refugees under refugee law. Prosecuted people by dint of Article 1A of the Convention relating to refugees in the light of its object and purpose necessitate the inference that the Convention defends both genders. It should therefore be given a gender-inclusive and gender-sensitive interpretation. 

 This section will hence address the rights of prosecuted women as protected and provided for in international law. This paper shall focus on the following rights:

  • The Right to Asylum

As refugees, the prosecuted women have a right to seek refuge. The term ‘asylum’ has no fixed definition. Generally, asylum refers to states’ protection in their jurisdiction or elsewhere to a individual who seeking the government’s protection in the absence of protection from his/ her country. The U.N. General Assembly (UNGA) has urged states to grant asylum and adherence to the principle of asylum, and States’ domestic laws offer the assurance of asylum, but there is no definition of the term’ As an enforceable right for individuals, is rarely recognized. 

Hence, those who seek asylum have a right to seek such protection in the State they are applying to. The right to asylum includes other human rights such as the right to dignity, right to due process, and the right to security. In realizing the right to asylum, the principle of non-refoulement is central to this realization. Non-refoulment is a foundation of international refugee protection. This principle is codified and covers any actions that would result in the removal, eviction, deportation, return repatriation. This includes and is not limited to having the applicant’s application for admission rejected. Such actions would render the applicant that might place a refugee in danger of facing the same issues actions that led to his/her escape from the prosecuting State. The principle is not an issue in regional limitations; it applies in all instances where the State practices its authority. 

Additionally, in the 1951 Refugee Convention, non- refoulement, as specified earlier, is codified under regional refugee law statutes and forms part of international customary international law. The principle places obligations on the State contained in and developed under human rights law. There is a high risk of the refugee being subjected to torture or other harsh, inhuman, or undignified treatment or punishment or other forms of serious harm if they were refused asylum. Non-refoulement applies to all refugees, as well as those who have not been officially protected per se, and to asylum-seekers who may be refugees and those who flee prosecution.

  • Physical Protection

Persecuted people have a right to physical protection against violence. In most states, persecuted people are taken in as refugees. In most cases, the treatment afforded to this group of people does not fully provide and cater to the protection, provision of service, security, and social amenities. A state takes in persecuted people as refugees. These people shall enjoy the right to protection from physical harm. This includes protecting them from attacks against their property, violence against their person, and injury. This requires the State to enforce and maintain peace. The physical protection also includes the obligation of the State to investigate, prosecute, and follow up on reports of violence against refugees.

  • Food, water, and relief supplies

Refugees are placed in a precarious situation by the State they are escaping as they face arbitrary prosecution, the refugees flee and leave their property behind. In most instances, refugees are at the mercy of the receiving State as they depend on the protection and housing provided in the camps. This means they lack food, water, and resources to acquire food, housing, and healthcare access. The receiving State is at obligation to provide these resources for the refugees.  

Food and water are essential to one’s nutrition and lifestyle. It is expected that when a state takes in refugees and asylum seekers, they are also provided with, at the very least, basic nutrition and relief supplies. After all, it would be arborous to take in many poor, homeless, and vulnerable people than leave them high and dry. The duty to provide such relief supplies, food, and water does not fall squarely on the receiving State. It is a shared obligation by both the State, alongside regional, international and intergovernmental institutions. If this is achieved, it could ensure that prosecuted women get adequate food, clean water, and enough relief supplies.

The State of prosecuted women in refugee law

Universally, women have been victims of differential and discriminatory treatment. Women, by their nature, are considered vulnerable both in law and society. Prosecuted women are also, in the case of refugee law, subject to special treatment. This section shall assess these issues and provide for the possibility of whether or not prosecuted women are adequately protected in refugee law.

  • Physical safety and protection of women

Women who are fleeing their persecuting states are prone to physical attacks. As the UNCHR report in Sierra Leone states, rape, sexual harassment, prostitution, and documentation. The UNCHR also noted that the abuse of women by state officials. Since most states, more so than those in Eastern Europe against the influx of refugees, there is no protection afforded to persecuted women. Instead of protecting the women are neglected and, at times, abused by the same State they expect to be covered in.

This hostility is characterized by campaigns against the welcome of immigrant refugees. For instance, there is a general sense in Poland that these are people who consume large amounts of the taxes paid and are a burden. There is a lot of hatred towards the victim as those who spread this animosity believe their nation and money is being wasted on “freeloaders”. Due to fabrication of facts and ignorance, many of the victims’ attacks are targeted at scaring refugees away. Intimidation is used to prevent entry of refugees into the state. This is believed to guarantee that the nation remains pure. Refugees and sanctuary seekers are occasionally seen as useless burdens to the government due to international or regional law as a member state’s duty to a treaty or a convention. 

  • Food, water, housing and healthcare. 

Prosecuted women, just like all other refugees, have been required to flee their households as a consequence of harassment, human rights abuses, and war. Persecuted women, or those near to them, have been fatalities of violence based on very individual traits such as faith. As a result, they are unable to support themselves financially. They also cannot buy food, clothing, and housing because they are vulnerable due to a lack of means and family and friends’ support systems. 

As a result of this and the apparent lack of adequate personal financial capability, persecuted women are always at the mercy of the receiving State. They are dependent not only for shelter, protection, and security but also for food, water, and housing. As earlier alluded to, there are many cases of poorly managed refugee camps with most of these camps being over capacity. As a result, there is congestion and displacement of the same refugees. They end up on the streets of border towns and at times, resort to begging and undertake odd jobs to feed and clothe themselves. Looking at such a structure, it is clear that these women will not enjoy the same or, at the very least, the minimum standard of human rights protection.

Receiving states face these issues because they do not set up the proper legal and institutional framework to housing the refugees’ housing. There is also no coordination between international, regional, domestic, and intergovernmental institutions concerning refugees’ housing. Each body seems to point the finger at the other to escape the blame for not providing the social amenities required. Without proper nutrition and adequate housing, the women in such situations will undoubtedly fall sick. Due to a lack of shelter, there is no protection from harsh weather conditions. 

The right to healthcare is essential to all human beings Access to health services is essential to their livelihood and the standard of life.  Pregnant also require well maintained and efficient maternity facilities. This includes access to medical facilities for these women. Difficulties arising out of pregnancies develop due to the use of ill-trained midwives, insufficient lighting, and unhygienic environments at the time of birth.

The duty to promote the right to healthcare includes the duty to prevent diseases.A common illness is water-borne diseases. In most cases, the water provided and the living situation are not sanitary would make the refugees vulnerable to water-borne ailments. Polluted water may lead to infections for example; typhoid fever, cholera, amoebic dysentery etc. This issue has been encountered in the Kakuma Refugee Camp in Kenya. Among diseases, unsanitary living situations resulting in abdominal parasites and bilharzia which are spread through either drinking or bathing in dirtied water. Besides, the UNHCR documented that many refugee women living in refugee camps are diseased with malaria caused by mosquitos that breed near water.

In another UNHCR report, the commission noted that the women in these situations do not have sufficient gynecological services.  The UNCHR also noted minimal allocation of suitable clothing and laundry facilities for menstruating females are often ignored. This led to contaminations and cervical cancer, which were not detected earlier. There were also no avenues for counseling concerning sexually transmitted infections is in the camps. Few programs emphasize on the requirements of teenage girls.

Also, with the increase in mental illness attention, it would be vital to assess the lack of attention paid to mental health issues. There are several problems facing those women who flee from persecution. These women have suffered torture and corporal punishment or were fleeing genocidal attacks and there could be several mental health issues that need to be addressed. Such problems require counseling and allocation of resources to facilitate this activity.

Conclusion

In my understanding, prosecuted women flee the harsh, nasty, and dangerous conditions of their home state in search of political stability, protection, and safety. It would seem contrary to the spirit of refugee law that a refugee ends up in a more precarious situation than that in her home state. From the analysis above, it is clear that little has been done to cater to refugees’ needs and particularly persecuted women in refugee law.  

The domestic laws and international law seem to be at cross purposes and in contrast. In areas such as East Europe, there is still hostility and animosity spurred by a false sense of nationalism against refugees. Also, in parts of the post-Brexit United Kingdom, those who strongly believe that receiving refugees and asylum seekers are against the public interest. This, coupled with failing diplomatic attempts and notable lack of attention drawn to the issue at hand, will lead one to conclude that refugee law does not cater adequately to the rights and needs of persecuted women.

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Case law 

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  • Union of Refugee Women and Others v Director, Private Security Industry Regulatory Authority and Others (CCT 39/06) [2006] ZACC 23 para 28

 

  • Hirsi Jamaa and Others v Italy, App. No. 27765/09 (ECtHR, Judgment of 23 February 2012)
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  • Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v. Guinea, 249/02, African Commission on Human and Peoples’ Rights, December 2004

 

  •  Gomez-Saballos v. I.N.S., 79 F.3d 912 (9th Cir. 1996).

 

  • Sepet (FC) and Another (FC) v Secretary of State for the Home Department [2003] UKHL 15 (8 January 2003) 9 para. 3.7

 

  • Horvath v. Secretary of State for the Home Department [2001] 1 AC 489 at 495F.

 

  • Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).

 

  • Kituo Cha Sheria & 8 others v Attorney General [2013] eKLR.

 

  • D-Muhumed v. US Atty. Gen., 388 F.3d 814 (11th Cir. 2004)
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