PRESENTATION AT THE CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE
Wednesday, 28 July 1999
Speaker: Ms. Bemma Donkoh, Deputy Regional Representative, RO Washington
I. International Law Perspectives
UNHCR appreciates the invitation from Alex Aleinikoff of the Carnegie Endowments International Migration Policy Program to participate in todays breakfast briefing. We note that the decision to organize this briefing is only the latest of several, well-timed initiatives undertaken by Carnegie in the past to foster debate on topical issues having a direct impact on the protection of refugees and asylum seekers - both being categories of persons whom the Office of the United Nations High Commissioner for Refugees has been given a global mandate to protect and assist.
The reference to "global protection mandate" leads me to recall the fact that UNHCRs interest in todays discussion stems, not only from the mandate it derives from its own enabling Statute, but also from its supervisory responsibility under Art. II of the 1967 Protocol relating to the Status of Refugees and Article 35 of the 1951 Convention. While the present discussion on domestic violence in the context of asylum adjudication has been occasioned by the recent decision of the Board of Immigration Appeals in the Matter of R-A, let me point out that UNHCRs prior interest lies not so much in obtaining a particular outcome in an individual asylum request as in assisting decision makers to ensure that decisions interpreting the Protocols refugee definition are rendered through the application of the appropriate analytical framework and approach. Moreover, UNHCR has a strong interest in ensuring that interpretation of the international refugee instruments conforms with the humanitarian objectives underlying the international refugee protection system. Having said this, one cannot read the facts of this case without being shocked and appalled by the brutality of this womans experience.
We view international protection principles as continuously evolving; it stands to reason that such principles should be advancing fastest and farthest in jurisdictions, such as the U.S., which are able to draw enlightenment from their own legal and constitutional traditions of guaranteeing respect for individual rights and freedoms. The adjudication of asylum applications involving
"gender-based persecution" is one such emerging area of refugee law in which Canada and the US have been among the countries providing leadership to other countries. But the issues involved are complex.
A. International Human Rights Instruments
1. The UN Special Rapporteur on Violence Against Women defined domestic violence in her 1996 report submitted to the UN Commission on Human Rights "as violence that occurs within the private sphere, generally between individuals who are related through intimacy, blood, or law." A complete analysis of domestic violence should recognize that men, women, boys and girls can each be the victims and perpetrators of domestic violence. At the same time, we should acknowledge that domestic violence as experienced in many parts of the world has a disproportionate impact on the human rights of women. International protection principles are implicated when a government cannot or will not protect an individual in its territory whose basic rights are being violated. It is particularly important to make this point when women are involved because as recognized by UNHCRs Executive Committee in Conclusion No. 73, women refugees often experience persecution differently from refugee men. I would say that this refers to the fact that women more often experience persecution in the private sphere and the existence of this private sphere potentially prevents women from obtaining protection.
2. The 1993 Declaration on the Elimination of Violence Against Women affirms that violence against women constitutes a violation of the human rights and fundamental freedoms of women. We should note that violence against women includes, physical, sexual and psychological abuse occurring in the family. The provisions of the Universal Declaration of Human Rights (Articles 3 and 5) and the Intl Covenant on Civil and Political Rights (Articles 7 and 9) establish that everyone has the right to life, liberty, and security of person and that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Eventhough domestic violence is practiced within a family, international human rights principles clearly establish State responsibility in safeguarding against human rights violations that occur in this context. According to the 22 November 1994 report submitted by the UN Special Rapporteur on violence against women to the UN Commission on Human Rights, States are held legally responsible for the acts or omissions of private persons in the following instances: (i) the person is an agent of the State, (ii) the private acts are covered by provisions of a treaty obligation, (iii) there is State complicity in the wrongs perpetrated by private actors, and (iv) there is State failure to exercise due diligence in the control of private actors.
It is possible to relate the facts of Matter of R-A- and other domestic violence cases to several of the above-mentioned instances.
3. There are provisions in the Convention on the Elimination of all Forms of Discrimination Against Women which we can relate to the facts of Matter of R-A-. These include, for example, the provision that States Parties shall "take in all fields,...all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men." There is also relevant language requiring States to ensure the same rights and responsibilities during marriage and at its dissolution.
4. Now, one could debate the universality of these human rights principles (and appropriateness of requesting States to conform with certain cultural norms), but not when the country of origin of the asylum applicant has signed on to the human rights treaty in question. Indeed, in the context of Matter of R-A-, it is relevant to note that Guatemala has acceded to the International Covenant on Civil and Political Rights and is also a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women.
B. Human Rights and Refugee Protection
International human rights law constitutes the broad framework within which refugee law provisions should be seen (p. 8 UNHCR, Human Rights and Refugee Protection, October 1995). UNHCRs Handbook, our Executive Committee and our various guidelines on protection issues set out standards that are found in international human rights instruments (Id., p.7). These standards help us to define persecution as a serious violation of human rights fear of which for reasons of one of the five enumerated grounds can establish a refugee claim. In the U.S. context, which will be discussed by succeeding panelists, the U.S. gender guidelines provide that gender-based claims, which of course include claims involving domestic violence, must be viewed within the framework provided by existing international human rights instruments and the interpretation of these instruments by international organizations. Accordingly, adjudicators can evaluate claims involving domestic violence within the framework provided by the 1951 Convention and 1967 Protocol relating to the Status of Refugees and the interpretation of these instruments by UNHCR. As domestic violence is often accompanied by rape and other forms of sexual violence and intimidation- as was the case in Matter of R-A-, the Executive Committee Conclusion No. 73, Refugee Protection and Sexual Violence, and UNHCRs 1995 Sexual Violence Guidelines provide relevant guidance. I mention sexual violence because UNHCRs Executive Committee has expressed its views clearly on sexual violence, which is one of the ways in which domestic violence is carried out.
As domestic violence claims and gender-based persecution claims in general have often invoked the "particular social group" ground in the refugee definition, UNHCRs amicus brief submitted before the United Kingdoms House of Lords in the Islam and Shah cases (decided in March 1999) also provides relevant guidance with respect to domestic violence as a ground for asylum.
2. The Refugee Definition
a. Inclusion Clauses of the 1951 Convention and the 1967 Protocol
i. Domestic Violence As Persecution
The Executive Committee (Conclusion No. 73) has concluded that persecution through sexual violence not only constitutes a gross violation of human rights, but is a particularly serious offense to human dignity. When sexual violence is committed for reasons of race, religion, nationality, membership of a particular social group or political opinion, it may be considered persecution under the definition of the term "refugee" if it is perpetrated or knowingly tolerated by the authorities, or if the authorities refuse or prove unable, to offer effective protection. The Executive Committee supports the recognition as refugees of persons whose claim to refugee status is based upon a well-founded fear of persecution, through sexual violence, for reasons of one of the five enumerated grounds: race, religion, nationality, membership of a particular social group or political opinion. According to the Handbook, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. The Handbook adds that other serious violations of human rights-- for the same reasons--would constitute persecution. Domestic violence, if it meets the aforementioned standard, should be determined to be persecution.
ii. Well-founded Fear
aa. Well-founded Fear of Future Persecution
A well-founded fear of domestic violence on account of race, religion, nationality, membership of a particular social group or political opinion is the basis of a valid asylum claim. Domestic violence perpetrated for reasons of one of the enumerated grounds is past persecution which establishes a well-founded fear of future persecution. A fear of future persecution in the domestic violence context can also be determined to be well-founded by relying on credible testimony from the applicant and experts to establish a pattern or practice of persecution or particularly lack of state protection or complicity of state actors where persons similarly situated to the applicant are involved (para. 43 of the Handbook).
The analysis of past vs. future persecution provides the opportunity to bring up an important point in the context of Matter of R-A-. As I already stated, past persecution for reasons of one of the five grounds is not the only way to establish a well-founded fear of future persecution. Thus, we need not only emphasize the past atrocious mistreatment suffered by the applicant, as evidenced in Matter of R-A to lay the foundation for recognition of refugee status. Why do I say this? Because a woman who has never been abused can establish a well-founded fear of future persecution for reasons of one of the five grounds by providing credible testimony regarding the treatment of similarly-situated women. However, a woman who has suffered atrocious abuse, but for whom there is no showing that it was suffered for reasons of one of the five grounds is not a refugee.
Establishing a well-founded fear in the context of domestic violence does not entail merely confirming its occurrence, but rather the discriminatory nature of a States protection from domestic violence and the consequences that may follow a womans efforts to leave a domestic violence situation. Knowledge of the legal protections that are available to women, including access to divorce (to which the BIA referred in the dissent), should also be a part of the analysis of the well-foundedness of this fear. For example, in 1996 the Congress in Guatemala passed the Code on Domestic Violence that prohibits physical, sexual, psychological and emotional violence carried out in the private and public spheres. Thus, it would be proper to consider the passage of the Code and how the provisions are being enforced in determining whether a particular fear is well-founded. In the case of the applicant in Matter of R-A- who left Guatemala in 1995, the passage of the Code in 1996 and the enforcement of its provisions could be considered for purposes of determining changed country conditions or ceased circumstatnces, but the exceptions to ceased circumstances (e.g. past persecution) must also be considered.
bb. Internal Flight Alternative
The availability of an internal flight alternative is considered in a determination of the well-foundedness of the fear. The analysis of an availability of an internal flight alternative is particularly relevant in the domestic violence context as it occurs within the family by private actors and there may be the mistaken belief that an internal flight alternative is more feasible when non-State actors are involved. Paragraph 91 of the Handbook provides that:
The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality...[P]ersecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country if under all the circumstances it would not have been reasonable to expect him to do so.
In a 1995 memorandum, UNHCR's Department of International Protection in Geneva determined that the possibility to find safety in other parts of the country must have existed at the time of flight and continue to be available when the eligibility decision is taken and the return to the country of origin is implemented. Thus, the issue of when the internal flight alternative was available helps us to understand how reasonable the applicants fear was and is. The requirement that the internal flight alternative continue to exist through return to the country of origin means that it must be durable.
iii. Bases for Fearing Persecution
An asylum claim involving domestic violence can be made on any of the enumerated grounds in the refugee definition. Let me discuss political opinion and particular social group as these were the two grounds invoked in Matter of R-A-.
aa. Political Opinion
An individual may have a well-founded fear of persecution for reasons of political opinion because opposition to domestic violence may be a political opinion or a political opinion is attributed to an individual as a result of opposition to domestic violence. The aforementioned political opinion could involve views on the status of marriage, women or men. Also, domestic violence can be used as a tool of repression of other political views that are not related to domestic violence, the status of marriage, women or men.
bb. Particular Social Group
The UNHCR Executive Committee recognizes in Conclusion No. 39 that States, in the exercise of their sovereignty, are free to adopt the interpretation that women asylum-seekers who face harsh or inhuman treatment due to 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 1 A (2) of the Convention.
UNHCRs position on social group as recently stated in its intervention submitted to the House of Lords in the United Kingdom is that individuals who believe in or are perceived to believe in values and standards at odds with the social mores of the society in which they live may, in principle, constitute a particular social group. The values at stake must be of such a nature that the person concerned should not be required to renounce them.
This will be the case where those values represent fundamental human rights. In many societies, women are more likely to believe in -- or be perceived as believing in -- values at odds with the social mores of society, as they are subject to discriminatory rules. Women who object to those rules -- or are perceived to object to them -- are capable of constituting a particular social group.
UNHCR agrees with the Court of Appeal in the United Kingdom cases of Shah and Islam that persecution alone cannot determine a group where none exists.
A particular social group means a group of people who share some characteristic which distinguishes them from society at large. That is to say, that the distinguishing characteristic which defines the group consists in a shared set of values which are not shared by society at large or, conversely, a common decision to opt out of a set of values shared by the rest of society. The characteristic must be unchangeable, either because it is innate or otherwise impossible to change or because it would be wrong to require the individuals to change it. Thus, where a person holds beliefs or has values such that requiring them to renounce them would contravene their fundamental human rights, they may in principle be part of a particular social group made up of like-minded persons.
A person may be a member of a social group if he or she is perceived to hold certain beliefs or values and thus it is not necessary that this person actually holds such beliefs. It is the shared values and beliefs that define the group and not reaction to the behavior that defines the group. However, the reaction may provide evidence in a particular case that a particular social group exists.
The above cited provisions of UNHCR's various guidelines, the Executive Committee conclusions and the Handbook can be interpreted to establish that certain victims of domestic violence can be included in the refugee definition.