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1992-1997 Inter Alia 48 (1992-1997)
Women Refugees; Does the United States Provide Adequate Protection?

handle is hein.journals/ialia1 and id is 256 raw text is: INERATIOAL SETO WOMEN REFUGEES; DOES THE UNITED STATES PROVIDE ADEQUATE PROTECTION? By Karen Musalo The issue of women's rights as human rights, long neglected by the international human rights community, has been brought into the foreground by a series of world events. The tragic and highly publicised use of rape and forcible impregnation by the Bosnian Serbs as a war strategy in the former Yugoslavia dramatically focused world attention on the violations of women's human rights. The successful organising and advocacy of women at two world conferences, the Fourth World Conference on Women, which took place in Beijing in 1995, and the World Conference on Human Rights in Vienna in 1993, also focused sustained attention on the issue. At the Vienna Conference, governments formally recognised that the human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights.1 Until these very recent developments, women's human rights were largely considered outside the area of concern of the international human rights community. The historic exclusion of women's human rights from the mainstream human rights movement resulted from perceptions that violations of women's rights implicated private rather than governmental action, and had to do with culture and tradition, which put them off-limits to criticism from the international community. These perceptions have been challenged by women from diverse cultures and countries. They have forcefully made the point that culture cannot excuse practices which violate fundamental rights. They have also challenged the public/private distinction, pointing to the countless situations in which governments are complicit in human rights violations committed by private actors by failing to provide even minimal state protection. The perceptions that have been responsible for the slow recognition of women's human rights as a legitimate human rights issue have implications for the protection of women refugees. The situations of persecution from which women flee have often been characterised as personal, rather than political, and therefore not a basis for refugee status. Women who fear rape during conditions of armed conflict, or who flee to avoid forcible sterilisation or abortion, or domestics violence have been considered outside the sphere of protection of the international refugee framework. The same exclusion from protection has been the norm regarding women who resist the practice of female genital mutilation (FGM, which is also referred to as female circumcision), a physically and psychologically damaging practice which maims women for life. Only recently have perceptions regarding women refugees who flee such human rights violations begun to change, in tandem with changing concepts regarding women's human rights in general. Canada was the first country to directly address the issue of refugee women in an attempt to make its adjudicatory process more responsive. In 1993 the Canadian Immigration and Refugee Board issued Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution. The Guidelines counselled that when deciding the claims of women applicants, the decision-makers should take international human rights standards regarding women into consideration. As discussed in more detail below, refugee must establish that the harm they fear is related to their race, religion, nationality, political opinion, or membership in a particular social group. The Guidelines recommended a protection-oriented approach in determining the connection between the feared harm, and the five enumerated grounds. The Guidelines also advised adjudicators to be more sensitive to the gender specific harms which women may suffer, i.e., rape or sexual violence, and to be aware of the difficulty associated with revealing such facts in the context of an asylum application. In 1995 the United States Immigration and Naturalization Service (INS) issued Considerations for Asylum Officers Adjudicating Asylum Claims from Women. The Considerations provide guidance for the INS' first tier of 2 asylum adjudicators and is modelled somewhat on the Canadian guidelines. Although it is a step in the right direction, it has failed to effectively address two key aspects of U.S. asylum jurisprudence which have resulted in failed protection for women asylum applicants. These aspects are the unfortunate trend in the U.S. to ignore international human rights norms in the adjudication of refugee cases, and the misplaced reliance on requiring proof of the persecutor's intent in determining whether the harm is related to the race, religion, nationality, political opinion, or social group membership of the victim. The International Refugee Protection Framework and U.S. Interpretation The United States adopted the international definition of refugee when it ratified the 1967 Protocol Relating to the Status of Refugees.3 In the wake of World War II, the international community drafted the 1951 Convention Relating to the Status 4 of Refugees to address the post-war European refugee crisis. The 1967 Protocol Relating to the Status of Refugees incorporated the Convention's provisions, but removed geographical and date restrictions which limited the Convention's applicability to the post-war European situation. The Convention and Protocol form the cornerstone of the international refugee protection regime. The Convention defines a refugee as an individual who has been persecuted in the past or has a well-founded fear of persecution in the future for reasons of' race, religion, nationality, political opinion, or membership in a particular social group. The Convention encourages State signatories to provide protection to refugees, although such protection is within the discretion of INTER ALIA SPRING 1996

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