Where Are the Women? Gender Discrimination in Refugee Policies and Practices Author(s): Nahla Valji, Lee Anne de la Hunt and Helen Moffett Source: Agenda: Empowering Women for Gender Equity, No. 55, Women. The Invisible Refugees (2003), pp. 61-72 Published by: Taylor & Francis, Ltd. on behalf of Agenda Feminist Media Stable URL: http://www.jstor.org/stable/4066300 . Accessed: 21/10/2014 10:19
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Where in are

the

women? and

Gender practices

discrimination

refugee

policies

NAHLAVALJI, ANNE DELA HUNT and LEE HELENMOFFETT write thereaneed that is

toreframe underpinning rights legislation toafford refugees theories refugee and inorder women moreprotection
There possibly one morevulnerable the refugee is no thon woman. Every meansof support gone - herlivelihood, the homeshe built, dowry, flockof goats orsheep,the her her wellshe dug,her household gods and shrine, garden the and cropsshe tended,the neighbours talkedto over she the fence,her extended family, veryoften her husbond and male relatives disappearedinto the maw of civil fled war, ahead of her,hauledawayby security policeor the militia. does not knowwhetheror not she is a She widow, what happenedto the family's savings, whether herparentsare stillalive- even whatprayers say.She to is veryoftensolelyresponsible the care and support for of her surviving children, the very moment that her at capacity feeding for themis takenaway. mayalready She havebeen raped; maybe pregnant HIV-positive she or as a resultEvery minuteof everyday,she experiences such overwhelming stressthat her basicfunctioning at risk, is yet she has to make crucial, decisions possibly life-saving on a dailybasis.Should sell herbanglesforfoodand she a doctorforthe baby, keep them to bribethe guards or at the border? Should slaughterthe last remaining she chickenin the sack, or wait a little longer? Shouldshe allow I I- year-old to carry her son messagesfora vigilante gong in exchangefor food,knowing couldbe shot if he Her caught? seven-year-old to in daughter beg and pilfer the market? mustcope withall this,and at the back She of hermind, constant of sexualviolence to which the fear she is nowmorevulnerable everbefore. thon an estimated27 million refugeesand displaced persons today are women or children(Anker,1995).Yet this percentage stands in stark contrast to statisticsthat reveal that in 1998, for example, only 17,8 percent of United Nations High Commissionerfor Refugees (UNHCR)-assisted refugees in South Africa were female (UNHCR: 1998). Also, according to the 'Gender PolicyStatement',recently released by the Department of Justice,it is estimated that women constitute only five percent of those who have been formally granted refugee status in South Africa (www.doj.gov.sa/policy/genderO2.html). Thistroubling disparity not restricted SouthAfrica is to it only.Afthough is knownthatthe majority refugees of are women (UNHCR, 2001), as a generalrule,refugee women have not been afforded anything like the protection offered refugee men in refugee-receiving countries throughout the globe, particularlyin the developed world.Untilthe lastdecade,refugeeswere considered male almost by default;refugee women and children were recognisedonly as part of a'family Genderconsiderationsincluding realisation package'. the - are relatively that women might be at especial risk new.

There is clearlyan urgentneed to reframe analysis the underpinningrefugee rights and legislationfrom a a genderperspective; thoroughoverhaul procedures of The above is a snapshotof the lifeof a typicalrefugee that explicitly implicitly or discriminate againstwomen woman inAfrica today.Butthiswoman,andthe millions asylum seekers is also long overdue. In this focus like her,are rendered almost invisibleby the United we argue that the greater part of persecution Nations refugee instruments'and domestic refugee experienced by women can be defined accordingto statusdetermination processes. Refugeedemographics conventional refugee grounds of political,religious, worldwide show that approximately80 percent of or racial persecution, once the notions of political
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Where are the women

Focus

The procedures2 used in gathering and assessing in processes refugeedetermination testimony traditional also failwomen.The practicein manywestern states Blindto the plightof women: shortfalls and conventions procedures of keeping a'white list'of countries assumed to be of traditional non-refugeeproducingcountries has been critiqued for a varietyof reasons,but the most compellingfor There is no doubt that the existingconventionshave our purposes is that states are placed on this list in played a role, however inadvertently, marginalis- regardlessof their record concerning human rights Nations (UN) ingwomen refugees.The 1951 United abuses on the basisof gender.Inother words,gender Convention Relatingto the Status of Refugees and or practicesthat are discriminatory even dangerous the 1967 Protocolthatfollowedit,formthe foundation to women are mostly considered irrelevantin deof internationalrefugee law. However,as has been termining whether or not a country can produce 1985; (Shacknove, pointedout inthe literature regularly authenticrefugees. were forgedinthe Collinson, 1993),these conventions and Europe, crucibleof post-WorldWar 11 In most refugee-receiving countries,especiallyin the were further shaped by the Cold War of world,the majority asylumseekers and developed they agenda.Today, continueto reflectthe Traditional refugees are young singlemen or men with families3 concerns of that period - namely principal (UNHCR,200 1).This is certainlythe case in South refugee from state the need to protect individuals Africa.Our particularrefugee regime is one that determina- persecution resultingfrom politicalbeliefs the 'advantages' refugee who is male, mobile, unention these or personal identity.Unfortunately, cumbered by children,and who has some financial processes and other assumptions underpinning and resourcesor prospects (savings, skills, so on). job failwomen consolidated both instruments intemational So far, governmentplansto place asylumseekers into the officialand the popularnotion of the 4 from humanitarian typicalasylumseeker as a male dissident, camps are meetingwith resistance and legalbodies;however,the relative'freedom'that tortured or imprisoned by the state for asylumseekers in SouthAfricastillenjoyhasthe effect activities. traditional political In women refugees. fact,most of furtherdisadvantaging of the women refugees who might be expected to This traditionalview of the asylumseeker as male, together with narrowand fairlyrigidinterpretations seek asylum in South Africa (eg women from the Democratic Republicof the Congo) are in refugee of what constitutespersecution,has hadthe effect of camps elsewhere on the subcontinent. Women denying women their rightto international protection. The legacyof the 1951 RefugeeConventionresulted refugeesare often forcedto settle in such sub-optimal in a mindsetwhereby women's politicalinvolvement environments, where they and their children are sometimesat graverisk(of harassment, sexual violence, is often misinterpreted personalconduct: as defying or because simply unsanftary conditions, epidemics) assault, transgressing discriminatory laws,or engagingin nonthey are not as mobile, comparativelyindependent conventional political activities (such as nursingor providing food) are viewed as personalor'domestic' and well-resourcedas male refugees. actions as opposed to politicalprotests.Thislackof recognitionafforded women's politicalinvolvement Likemanyother countries,the SouthAfricanregime is also more inclined to look more favourablyon stands in the way of their seeking asylum for on persecution the basisof those actions. Furthermore, refugeeswhose experiencesreflectthose of traditional
62 Agenda55 2003

involvement are redefined.We suggest alternative of to interpretations categories approaches traditional category and of persecution, arguethatthere isa further of persecutionthat often cannot be covered by the above categories - persecution because of gender.

the focus on persecution by the state ignores the primaryarena of persecution experienced by the majority refugeewomen - the privatesphere. of

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Focus

Where are the women

notions of persecutionon political grounds.This both privilegesthe male experience of persecution, and discriminatesagainst women's experiences of persecution by evaluating latter accordingto malethe centred andtraditional political standards.The rightto in equality the SouthAfrican when applied Constitution, to refugee determinationprocedures,requiresthat women who fearfortheirlivesandsecurity assessed be accordingto the specific and unique circumstances related to their gender.Given our refugee statistics, where the very low numberof women seekingasylum is overwhelmingly disproportionate to the actual number women refugeesinthe African of subcontinent the failureto account for and incorporatewomen's experiences within the determination procedures amounts to systematic infringementof their right to equality.

Convention.The were reviewedandupdated guidelines in 1996,and today act as a guide for other countries addressingthis issue.The Canadianprecedent was subsequently followedby a numberof other countries, including UnitedStates, the and Australia, most recently the United Kingdom. Most countries,however,have chosen not to amend existing legislationto include 'sex'or'gender'as a social group,but ratherto issue on non-binding regulations how officials mightevaluate claimsof gender persecution.5 South Africa is in the unique position of having includedgender withinthe definitionof'social group' in the Refugees Act, 130 of 1998. Most states that have recognisedgender persecutionhave chosen not to amend existing legislation,but rather to provide non-binding guidelines on how gender may be incorporated into the category of 'social group' persecution. By includingthe category of gender within its legislation and giving it legally binding status, SouthAfricahas made a real commitment, in theory at least, towards The recognising rightsof women refugees. the

Genderingrefugee policies
While the violationof women's rightsis universal and long-standing, recognitionof the need to create the international protection mechanisms for women refugeesis relatively recent.Inparticular, assertion the that refugee determination processes should be expanded to includethe experiences of women has occurred at an international level only withinthe last two decades. In 1984, the European Parliamentand the Dutch Refugee Council passed similarresolutions stating that the concept of'a particular social group'could applyto groups of women who transgressedmoral and ethicalprinciples their societies and who were in victimsof cruel and degrading treatment as a result. In 1991,the UNHCR released its 'Guidelines the on Protection of Refugee Women' (UN HCR, 199 1). Included were suggestions reforming procedures for legal to includerecognitionof gender persecution,as well as appropriate interview techniqueswhen investigating claimsof this nature. In March 1993, Canadabecame the first country to produce a comprehensive set of guidelines on the inclusion gender as a 'socialgroup'underthe 1951 of

violationof women's The legal definitionof a refugee rights is universal The South African Act Refugees incorporates and longthe definitions containedin both the United standing Nationsand Organisation African for Unity
(OAU) refugee conventions - definitions which are implicitly gendered. Article I(A)(2) of the 1951 UN ConventionRelating to the Status of Refugees,defines a refugee as any person who as a resultof-and owingto a well-founded of being fear persecuted for reasons of race, religion,nationality, membership a particular group political of social or opinion, is outsidethe country his nationality is unableor, of and owingto such fear,is unwilling avail himselfof the to protection thatcountry; whonot having nationality of or a and being outside the countryof his formerhabitual residenceas a resultof such events,is unableor owing to suchfear, unwilling return it. is to to
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Where are the women

Focus

Article 1(2)of the 1969 OAU ConventionGoverning the SpecificAspects of Refugee Problems in Africa broadensthe UN definition states: and Theterm'refugee' shallalso applyto everypersonwho, to domination owing extemal aggression, occupation, foreign or eventsseriously disturbing publicorderin eitherpart or the whole of his countryof originor nationality, is in to residence order compelled leavehisplaceof habitual to seek refugein anotherplace outsidehis countryof or origin nationality. Although the extended OAU definition does not require an individualisedfear of persecution, it is widely believed by refugee lawyersand NGOs that South Africanrefugee status determinationofficers rejectapplications where the asylum seeker does not come from what the Department of Home Affairs believesis a'refugee producingcountry'(de la Hunt,2002:21). Harmis Thisterm,

establishing'serious harm'(or threat thereof), and second,the inability unwillingness a state to offer or of protectionto the individual. Followingthe abovementioned example set by the Canadian guidelines, it is becoming more widely accepted that women refugees' experiences of persecutionfallinto four broad categories (Wallace, 1996). I.Women who fearpersecutionon the same grounds and undersimilar circumstances men.Thisincludes as women persecuted for their identity- national, racial or social - or their particular beliefs.Women in this category are also often persecuted as women (for example, are raped). In other words, they may be harmed in differentways to men who participatein the same activitiesor who share the same identity.

2. Women who fear persecution solely because of to reasonsrelating kinship.The age-oldtacticof cherchez done to la famille(searchthe family)meansthat harmis done is used to describethe political stability a of women to to women to punish(male) familymembers,or they country opposedto its ability willingness may be used as 'hostages' entrap other members as or to punish to protectthe mostvulnerable elementsof its of the family.They also be persecuted for views may malefamily This population. is particularly problematic for held by male members of their family. example,it For members women whosepersecution notbe political' mightbe assumedthat the spouse of a political may activist sense withwhichthe word holdsthe same views as her husband. (in the traditional is mostlyused) but of a cultural gendered or nature(Valji, 2000:20). 3.Women who fear persecution resulting from conditionsof severe discrimination groundsof gender, on and who are at the riskof systematicviolence at the What constitutes persecution? hands of privatecitizens because the state is either to Althoughfew states have taken the step of precisely unableor unwilling protectthem. or'well-founded of persecution' fear defining'persecution' withintheir domestic legislation, statusdetermination 4. Women who fear persecutionas a resultof transbodiesand courtshavegenerally acceptedthata threat gressing religious,customary or social mores. The to lifeor freedomon accountof race,religion, themselvesmay be based on an assumption nationality, practices politicalopinion or membershipin a particular social of the inferior statusof women,whichcan manifestin groupconstitutespersecution. Other seriousviolations discrimination severe enoughto qualify persecution as of humanrights- for the same reasons - would also honourkillings (for example,femalegenitalmutilation, constitutepersecution. or dowry bumings); transgressions be met with or may so severeas to amount punishments disproportionately However, persecutionwithinthe context of the 1951 to persecution(for example,in countriessuch as Iran RefugeeConventionmust containtwo elements:first, where women can be floggedfor wearinglipstick, or
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Focus

Where are the women

where they can be stoned or even killed Afghanistan, for going out unaccompanied by a male relative). the When considering persecutionof women,it is vital sexualviolenceas a formof persecution to acknowledge and to includeit in the instruments. However,formal of recognition(specifically rape as a war crime - see with both below) has only recentlybeen forthcoming, and officialpolicy continuingto reflect the unofficial act assumptionthat rape is an arbitrary of harm,not is a form of persecution.This not acceptable.Women's to vulnerability sexualviolenceas a formof persecution must be recognised and addressed, as opposed to accepted. It is a truism universally(and fatalistically or that acknowledged, whateverviolations abuses sadly) men fearin an insecureworld,women feardoublyThe atrocities that accompany war, genocide, unlawful imprisonment, or torture are always worse for women. Sexual violation is not the first dread that for to mindwhen he is arrested political springs a man's activism,or when he hears a twig snap outside, or when the frontdoor is kickedin at two o' clock inthe morning. Menare of course,subjectedto sexualabuse and rape withinthe context of other rightsviolations; one thinks of the notorious rape of TE Lawrence, when he was taken prisonerand tortured by a local duringWorld Ottomancolonial despot in NorthAfrica War 1.Butthis is not an extratax of fear a man hasto pay every time he is threatened by politicalor other instability.

office in the civilservice for the rape and torture of use women) the widespread of rape inwar is premised on the implicitassumptionthat this is acceptableto forWar and even sanctioned the state.TheTribunals by have both conCrimes in Rwanda and Yugoslavia and demned rape as a crime againsthumanity, a UN panel in 1994 ruled that rape related to ethnic cleansing constituted a war crime and legally constitutedgenocide.' in disturbing allegations the press have begun Recently, emergingfrom Zimbabwe,suggestingthat rape and sexual torture are being used as a form of political punishment;vigilante groups are targeting women whose male relativessupport the opposition,or who that questionthe govemment partyline. livein villages There are reports that these women are gang-raped specifically teach their communities'a to lesson'not to oppose ZANU-PFmembers or policies (SundayTimes,September 1, 2002). Ifthese reports are true,then these It is difficult would be cleargroundsfor seekingasylum to establish state on the basis of persecution.The question responare does arise as to why such applications sibilityfor not being made.Thismost likelyhas to do withthe widespreadperceptionthat sexual sexual violence does not constitute persecution crimes it the or torture.Although is probably oldest war crime there is,the officialrecognition of rape as such is less than a decade old.

state responsi- Persecution by non-state actors to It is,however, often difficult establish even in the context of war bilityfor sexual crimes, as situations, the intimatenatureof such crimes leads For the majority of women, however, abuse and occur not at the handsof the state or during that to automatically the assumption these are'personal violations times of war,but at the hands of private individuals, as crimes'or random acts by individuals opposed to however,international and withintheir communities.Such persecution has state-sanctionedtactics.Today, been sidelinedby the argumentthat there is and regularly the bodies are recognising true nature,brutality (which is requiredin appeals for rape as an abuse no state culpability Acknowledging intentof such crimes. protection)in cases of privateabuse.This international of power and a means to achievinga politicalend is argumentfailsto recognisethe dualnatureof a state's the a step forwardin reconceptualising persecutionof responsibilityto its citizens.States not only have a women. Although it may not always be possible to but to drawa directlineof responsibility the state (although negativeobligationnot to violate a citizen'srights, to inthe case of Iraq, emerged subsequentto the Iraqi a positiveobligation respect and protect such rights it R of v existed an official (Islam Secretary State forthe Home Department; of that invasion Kuwait there actually
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Where are the women

Focus

v Immigration AppealTribunal, parte ShahHouse of ex Lords, March,1999).Systematicpatternsof abuse 25 against one sector of society are indicative a lackof of political to protectthat group,and aretantamount will to abrogation international If of obligations. this burden of responsibilityis evaded or refused by the state, women haveno otherrecoursebutto seek intemational protection. Jurisprudence surrounding responsibility private state for human rights abuses is growing.In 1988, the InterAmerican court in the case of Velosquez-Rodriguez (case 7920, July29, 1998) ruledthat:

protects women. These includethe fact that sexual is discriminationviewedas 'trivial', abuseof women that is seen as a cuftural private or issue, women'srights that are not fullyrecognisedas humanrights, that the and abuses are seen as too pervasiveto confront(Bunch, 1990).Ifthey leadto non-enforcement, these reasons constitute passive complicityand acceptance of the abuse by the state.As such,victimshave no internal recoursefor their persecution, granting asylum the of on such groundswould be appropriate.

Applicationfor asylumand assessment of claims

The need for a more comprehensiveunderstanding An illegolact whichviolateshumanrightsand whichis of politicalpersecution initially directly not imputable a State (forexample, to Itis important the different that positionof women vis because it is the act of a privatepersonor a visthe refugeeapplication statusdetermination and becausethe personresponsible not been has societies identfied) leadto intematonal can responsibility process be recognised.Strictlypatriarchal to (whichare alsothose societiesmost likely condone of the State,not becouseof the act itselfbut of Evidence to becauseof the lackof duediligence prevent or perpetuate gender-persecutorypractices)will,by conscious or to the violation to respond it as required by their very nature,limitthe interactionwomen have inactionby with and within the public sphere.Women in such the Convention (O'Hare,1999:365). the state societies are therefore less likely be publicly to active amountsto in religious, or political, nationalist organisations the In other words, evidence of conscious complicity inactionbythe state amountsto complicity. very criteriaused to determine asylumclaims.This exclusion of women from publiclife does not mean This can be found in official legislation (for ratherthis marginaliexample,not recognising rape in marriage, that women are not persecuted; sationitselfmaybe an elementof discrimination severe or relegating women to the statusof legal enough to constitute persecution in and of itself. minors); of policeresponse requests assistance; lack to for For women who do become politically involved, and openly displayedor markedreluctanceto assist activities as attending such conventional protests, writing or investigate, prosecute, or punish transgressing and joiningpoliticalparties may not be publications individuals. these actionsconstitutestate complicity All in possible theirsocietyor culture.Their activities political if they deprive women of effective legal protection are more likely take the shape of less conventional to from abuse.Theexistence of legislation seems to that interactions,such as providingcommunityservices, protect women should not be used as evidence of food and shelterto activists, delivering messages and state protectionin and of itself, it can be proventhat if so on.These activitiesare rendered politicalby the abuses continueunchecked. example,murderis a For context in which they take place and the goal they crime in countries in which honour killings, widow seek to achieve.The support women often provide bumings dowry murders rife- yet suchcrimes for more traditionalkindsof politicalactivity, both and are is are rarelyprosecuted. Lawsalone are insufficient to and important often more risky thantraditional political preventmistreatment women ifthere is no political involvement, women can be more severelypunished of as willto enforce them.There are a numberof reasons thantheirmalecounterparts, theiractionschallenge as why governments might not enforce legislation that not only a political status quo, but also transgress
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Focus

Where are the women

social and culturalmores which preclude women's involvement such issues. in Expressions resistanceto gendered oppressionor of institutionalised discrimination political are actions,and to persecutionfor expressingsuch beliefs,or refusing accept an inferiorstation in society,thus constitute a persecutionon the groundsof political opinion.Thus womanwho assertsher independence laying by claim to certainrights whetherthey be the right be sexually to or active, exercisereproductive to rights, to refusecultural practicesistaking inherently an political stand.

sexual protection,the punishmentfor experiencing sexual violation could be ostracism or death. As the UNHCRguidelines(I 995a) has noted, is in fi]fa femalerefugee registered the nameof hermale partnerand if onlythe husband's situation considered is duringa family's requestfor asylum,then the specific needs,interestsand opinions the womanwillalmost of inevitably ignored. be

It is important that when a woman appliesfor asylum as a dependant, she be informed in private,and in of terms that she understands, her rightto make an for Such rethinking and broadeningof what constitutes independentapplication asylumat any stage. She shouldalso be advisedto consuftwith a lawyerbefore activities mean that in manycases,claims will political basedon genderwillbe ableto be assessedon political doing so. In grounds. the case of refusal complywith a cultural to the practice, act of refusal couldbe viewed as a political The existing practice of givingderivative refugee statusto the partnerand children one, or seen as the assertionof a feministideologyin Women of an asylum applicantis problematic.In a hostile context. An example of this might be the should be South Africa,where most applicantshave refusalby some Iranian women to wear a veil as a been men, derivativestatus is traditionally informedof means of expressing opposition to the Islamic their right givento theirwives (de la Hunt,2002).This fundamentalist (formal state of recognition persecution situation leaves these women entirely to make an on the groundsof religionmust also includethe right Mediareports dependenton theirpartners. indepennot to practicea specificreligion). in refugee-receiving countriesinthe North dent point to an increase in domination and Discriminationin the applicationprocess application domestic abuse by husbandswell awareof for asylum The application process also needs attentionin cases the new power and status the refugee where asylum applicationsare made by familiesor determination process grants them over groupsinwhichthe womanis not the primary applicant their wives - who, for example, are unableto leave Alltoo often,officials assumethat women are merely abusivepartnerswithout risking of their standing loss present as appendagesto male applicants. According as refugees. Another example of the above is the 'no to recommendations made by the UNHCR(UNHCR recourse to publicfunds'law in the United Kingdom, that refugeewomen Guidelines: 1993)provision shouldbe madeforhusbands whichstipulates incases of divorce, maynot claim Statebenefrts mustleavethe receiving and and wives to have separate hearings,and for both to partnersto contributeinformation the assessment. countrywithina certaintime period. Becauseof the assumptionthat a family's request for Addressingargumentsagainstthe asylumstems from the persecution experienced by the men,the possibility women mayhavelegitimate inclusionof gender as a social group that groundsto layclaimsof their own, is ignored.Women Culturalrelativism remain of mayhavehadexperiences whichtheirfamilies as unaware, sexualviolence is a source of humiliation Sex-specific violenceand discrimination neverbeen has in any culture.Moreover,in those societies where a treatedwiththe some seriousness otherhumanrights as woman is consideredto be responsiblefor her own because of his or her abuses....If a personis murdered
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Where are the women

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the withoutrage. if politics, world justifiably responds But is a person beatenorallowed diebecause is female, to she theworld it dismisses as cultural tradition (Heise,1989:13). Cultural relativism is often cited as a reason for legitimately sweeping asideclaims genderpersecubon. of Inthe lightof internationally accepted humanrights instruments suchas the Convention the Elimination on of all forms of Discrimination Against Women (CEDAW), argumenthas littlefoundation. this Article 5(a) of CEDAWobligesstate partiesto: take all appropriate measures(a) to modifythe social andcultural pattemsof conduct men andwomen, of with a view to achievingthe elimination prejudices of and and customary allotherpractices which basedon the are idea of the inferiority the superiority eitherof the or of sexes or on stereotyped roles for men and women.

has hadto contend withthe argument(made by antiwithin immigration lobbies govemments cMlsociety) and thatsuchan inclusion wouldopen afloodgate', swamping those countrieswith applicants. SouthAfricahas been no exception.However, fear has littlefoundation, this for a numberof reasons. The floodgateargument premised the assumption is on that the categoryof women as a specificgroup is too large and ambiguous,and that by opening up this category and accepting refugees on this basis, millions more will present themselves, as violence women is endemicand universal against (Neal, 1988). there is nothinginthe Conventiondefinition However, that allows for the exclusion of a claim on the basis that it is a persecutionsharedwith largenumbersof others. As stated by the former CanadianRefugee StatusAdvisoryCommittee: A personis a refugeewhether [or she] is persecuted he A alone,or persecutedwithothers. personneed not be singled out for persecutionin orderto be a refugee. Each claim must be assessed separately(Ministerof and Employment Immigration, 1982). A woman cannot and shouldnot be disqualified from statussimplybecause largenumbers claiming refugee of women experience persecution in their lives.The only relevantfactor must be whether it is possibleto their situationfrom that of the general differentiate populationof the country of origin. as gendered Just violence is endemic and universal, existence of the politicalviolence is also endemic the world over,yet the fearof largenumbersof possiblepolitical refugees does not precluderecognitionof their plight. The experience of states such as Canada and the UnitedStatesadoptingsimilar atteststo the guidelines fact that the 'floodgate' does not 'open'.Accordingto UNHCR statistics(UNHCR, I995b), the percentage of women asylum seekersin Canada remained relativety stable acrossthe five-yearperiod from 1989 to 1993. Women comprisedapproximately 34-39 percent of asylumseekers,a figurethat includesthe period after the implementation Canada's of genderguidelines.The

Cultural is relativism often cited as a reason for legitimately sweeping aside claims of gender persecution

Implicitin this Article is an obligationto protectwomen frompractices premised on assumptions of inferiorityor traditional Practices suchas femalegenital stereotypes. mutilation, bridebumings, forcedmarriages, rape,and domesticviolence are not only a violationof libertyand securityof person; are they are clearly dangerous, degrading to women and an expression of the inferior which womenholdinmany standing societies.

The right safety, to dignity lifeandfreedom of fromcruel,inhuman degrading or treatment or punishmentis not a western culturalprinciple; it arises from universal recognition of the common humanity the individual.The of argumentfor cultural relativity values the rightof the community, tribe or state above the rightof women to life,bodilyintegrity, and most of all,choice.It shouldbe noted that asylum lawdoes not actively seek women to rescue- it merely givesthem a meansby whichto asserttheir rights and escape such violations.

The'floodgate' argument
So far, each statethat has chosen to recognisegenderpersecution withinits refugeedetermination processes,
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Focus

Where are the women

implementationof the South African Refugees Act not (I1998)in 2000 has certainly resuftedin a flood of woman applicants.7 smallimpactof gender The reason for the relatively guidelines is largely due to the social and political asylum seeking women face.Some constraints potential cannot leave their homes without a male relative accompanyingthem, drive a car, or travel abroad without their husband'swritten permission.Economically, constraintsare even more pervasive.Few the women are able to affordto flee their country.For those that can, however,there must be a basic state obligation to offer the possibility of protection. Lastly, accepting gender persecution as grounds for would asylumdoes not implythat all such applicants women's experiences Recognising be grantedasylum. It merely affordsequalityof opportunity. does not in any way requirea state to accept more refugees.It is a the process simply meansof reforming determination and to moreaccurately equitably include experiences the of of those who formthe majority the world's displaced persons and refugees.

of gender persecution in the RefugeesAct.We have also suggested shifts that need to take place in application assessmentproceduresthat willmore and appropriately reflectthis country's commitment the to principlesof equalityand dignity, we challengethe as gendered assumptionsabout who is a refugee. References
Anker D (1995) 'Women refugees forgotten no longer' in San Diego Law Review,32. Bunch C (1990) 'Women's rights as human rights:towards a revision of human rights'in Human RightsQuarterly, 12,4. Collinson S (1993) Beyond Borders: Westem Europe Migration PolicyTowardsthe 2 I Century,London: Royal Institute of InternationalAffairs. de la Hunt L (2002) Tracking Progress:InitialExperiences in the Implementationof the Refugees Act 130 of 1998, South Africa:National Consortium for Refugee Affairs. Heise L (1989) 'Crimes of Gender' in WorldWatch Magazine, Washington DC:World Watch Institute. O'Hare A (1999) 'Realising human rights for women' in Human Rights Quarterly, 21,2. ValjiN (2000) 'Seeing refugee women as refugees:the gendered natureof persecution'in TrackTwo, 9,2. Minister of Employment and Immigration (Canada) (1982) 'New Refugee Status Advisory Guidelines on Refugee Assessment of Credibility',Ottawa. Neal D (1988) 'Women as a social group: recognising sexbased persecution as a grounds of asylum' in Columbia Human RightsLaw Review,20. Shacknove A (1985) 'Who is a Refugee?' in Ethics,6. United Nations High Commissioner for Refugees (199 1) Guidelineson the Protectionof Refugee Women, N.N Doc.ES/SCP/67. United Nations High Commissioner for Refugees (I 995a) 'Violence against refugees: guidelines on prevention and responses' in IntemationalJournalof Refugee Law,7. United Nations High Commissioner for Refugees (I 995b) The State of the World'sRefugees: In Search of Solutions, NewYork: Oxford University Press. United Nations High Commissioner for Refugees (1998) Report;available at: www.unhcr.ch/ United Nations High Commissioner for Refugees (2002) StatisticalYearbook200 I,Geneva: UNHCR. Wallace R (1996) 'Makingthe Refugee Convention gender sensitive: the Canadian guidelines' in Internationaland ComparativeLaw Quarterly,45.

Conclusion
The South African Constitution, one of the most equitablein the world in terms of its commitmentto and Act genderequality, the Refugees together present us with the opportunityto be at the cuttingedge of debates and issues regarding refugee rights. However,we are still burdened by a past of flagrant humanrightsviolations, and,as a nation,much of our and cultural patriarchal.Women heritageis profoundly childrenwho carryapartheid's legacyface a futurein still frombeingrecognised whichtheirrights needto shift in moraland legalprinciple everydaypractice.There to is a degree of ironyinwoman refugeesseekingasylum in a country that has the unfortunatedistinctionof beingone of the most dangerousplaces in the world for a woman to live. Inthis focuswe havedeconstructed about assumptions the 'universal' refugee,and enlargedon the inclusion

Notes to 1. The 195I Conventionrelating the Statusof Refugees to andthe 1967 ProtocolRelating the Statusof Refugees.
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Where are the women

Focus

2. Incertainjurisdictions, determinations made on the are basisof oral hearings, either inquisitorial adversarial. or Inothers,decisionsare made on files,which include transcripts, notes from an initial or interview. page See 71 for guidelinesdraftedto assiststatusdetermination officersin SouthAfrica. 3. Inmost receivingcountriesin the undevelopedworld, refugeesarrivein largegroupsand are housed in camps. Statusdetermination seldom done on an individual is basisand such refugeesare often referredto as prima facie refugees.

or non-binding regulations, similarly are regardedas'soft law' 6. Thisis entrenchedinthe Rome Statute, whichestablished the International Criminal Court (Article7). 7, No application basedon genderhas been brought before the RefugeeAppealsBoard.The authorsare awareof one case broughtby aWestAfricanwomanwho fled her countryto avoidan arranged Her marriage. claimhas yet to be determined. Nahla Valjiis a Researcher at the Centre for the Study of Violence and Reconciliation in Johannesburg. Annede la Huntis the Director Lee of the LegalAid Clinicat the University Cape of Town. Helen Moffettis a freelanceacademicand a writer. She is currently ResearchFellowat the GenderInstitute the University Cape at African of
Town

4. In 1999the Departmentof Home Affairs announced plans set uptwo'RefugeeReception to Centres'.According to their proposal, asylumseekerswould be compelledto remaininthese centres pendingthe outcome of their for applications asylum. 5. Documentssuch as UN resolutionsand the UNHCR Handbook StatusDetermination seen in common on are lawjurisdiction courts as'soft law',as opposed to 'hard law'(domestic legislation binding or treaties).Guidelines,

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Gender guidelines for officials interviewing asylum seekers
Officials shouldbe awarethat women mayexperience the full range of persecution or risk or threat of persecution that men do (persecution due to race, politicalaffiliation activity, or religion,etc), as well as beingat riskfor specificforms of harm. It is importantto bear in mindthereforethat women seekingasylumwill not alwaysfallinto the traditional categoriesof asylumseekers. The followingmust be borne in mind when dealing with women asylumseekers: * It should not be assumedthat women are seeking asylumsimplybecause their spouse or another male familymember is doing so;they mightneed asylumin their own right, and for very different reasons. * However, remember thatwomen maybe persecuted becauseof theirassociation or (through family marriage) with men who are underthreat; example, for they may be at riskof harmsimplybecausethey are the wife or activist. daughterof a political * Do not assumethat becausea womancannotanswer or questionsabout her husband male relative's political that her claim is invalid. activities, Women, especially those from societies in whichthey are seen as inferior to men,are often ignorantof detailsof their partners' and politicalinvolvement, should not be automatically expected to corroboratethese details. * Remember women maywell be deeplypolitically that involved,but may not describe themselves this way becausetheir dutiesdiffer fromthose of male activists. Forexample,women often carrymessagesor provide in careto men involved more food,shelterand medical conventionalpoliticalactivities. Even if these women do not describethemselves as politically the involved, question is whether their actions place them at risk. * Women who seek asylum (especiallythose from societies in which women have low social standing) may not understand their rightsas potentialrefugees, and mightput forwardweak claimsfor refugeestatus whilefailing revealinformation strengthens to that their case.Theinterviewing official mustexplain theirstanding and the grounds on which they can seek asylum. Women should be encouraged to seek legal advice before proceedingwith a claim. * Officers should be sensitiveto culturalissues,and educate themselves about the states or regionsfrom which the asylum-seekerscome, including status the and risks women inthose areas.Never assumethat to western standardsapplyto all cases;applying African standardsmay also be inappropriatein some cases. * Do not assume that because the country of origin has lawsagainst kindsof harma woman fearsthat the she is not at risk.Inthe Sudan,for example, female but genitalmutilation (FGM)has been made illegal, the incidence of FGMremainsthe highest in the world, and the new law has had little or no effect on the Statesmayput lawsin place, oftenfor windowpractice. that they haveneitherthe willnor the power dressing, to enforce.Murder a crimein states in whichhonour is or dowry burning common,yet are killings widow and such cases are rarelyprosecuted. * Do not assumethat interpreters open to women's are experiences. Even if they speak the same language, they may come from a group that is hostile to or disapprovingof women. Some may be shocked if women try to speakof sexualviolenceor matterssuch as femalegenitalmutilation, mightbe reluctant to and repeat detailsto the interviewer * Most women who have been raped or sexually traumatised it extremelydifficult talkabouttheir find to to experience.Talking a strangeris even worse, and a strangemanworst of all.Moreover, manywomen who are brutalised authority by figuresor state forces (such as the police or army)mightbe terrifiedof officials or men in uniformas a result.

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* Women who have experienced violence may have post-traumaticstress syndrome. Officialsshould be able to recognise the signs of this condition,which include numbnessand detachment - a woman who describestraumatic events withoutapparentemotion is not necessarily fabricatingor'making things up'. * Be awarethat women maybe at riskfrom members of their own families.This particularly of FGM, is true widow and dowry burning, honour killings, forced and marriages, almost all of which are carriedout within the family or close community. Refugee women, especially those with low standing theirown cuftures, in are also at heightenedriskof spousalabuse,battering and rape. Duringthe interviewitself: * Female interviewers interpreters and shouldinterview women. If this is difficultto arrange at first,female officials mustbe appointed.They mustbe used ifsexual violence is suspected. (But do not assume that all women are gender-sensitive; female interviewersand interpreters shouldreceivethe sametraining gender in awarenessas male officials). * Allow enough time for women to tell their stories at leisureand hopefullybuildsome rapportwith the interviewing official.Women who are rushedwillfind it even harderto talkabout painful issues. * Adopt non-threatening interview Do techniques. not barkout questionsor use intimidating body language (standing over women who are sitting down, for example). * Avoid judgingby your own culturalstandards. is It easy to misread body language,particularly that of women from repressivesocieties.Tense or recoiling postureand refusal makeeye contactmightindicate to modesty,submissivenessor fear of authority; not do

assume that they mean dishonesty or evasiveness. * Allow women privacyduringthe interviews.These should not take place in a public room with others comingand going.Also allow women to speak alone; manywomen will be too ashamedto discussdelicate issues (such as sexual violation or FGM)in front of male relativesor partners. * Do not pry for intimateor sexuallyexplicitdetails. Yourrole is to assess the degree of riskto the asylum seeker,not to gatherallthe gory details. * Askopen-endedquestions. Begin seeking by innocuous information(eg'Where are you from?')and move gradually more chargedquestions(eg 'Whatwas it to likethere?"What it likefor you?"Did feel safe?' was you 'What kindsof thingswere happening that made you want to leave?') to structurethe interviewso that Try the woman volunteers information, and do not ask specific questions (such as'Have you been raped?') unlesstrust has been established. * Use active listening techniques. * Never ask judgmentalquestions (eg 'Why weren't you wearinga veil?'). * It is never appropriate imply to that a woman ought to avoidthe behaviour a sexualor romantic simply (eg relationship) places her at riskfor persecution (a that death sentence for adultery, instance). for The SouthAfricanConstitutionis most progressivein in banningdiscrimination all forms. It is the duty of officialsto honour the spirit and the letter of our founded Constitution, democratically when including dealingwith asylumseekers. The guidelines were compiled for the National Consortiumfor RefugeeAffairsin 1999 by LeeAnne de la Hunt and NahlaVaiji.

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