Gender-based discrimination is often enforced through law as well as through social practices. A woman’s claim to refugee status cannot be based solely on the fact that she is subject to a national policy or law to which she objects.
The claimant will need to establish that:
1. the policy or law is inherently persecutory; or
2. the policy or law is used as a means of persecution for one of the Convention reasons; or
3. the policy or law, although having legitimate goals, is administered through persecutory means; or
4. the penalty for non-compliance with the policy or law is disproportionately severe.
The role of women in the biological and social reproduction of group identity places them in a position of particular vulnerability during war, civil war, and civil unrest. This vulnerability and the political significance of gender during periods of war and civil unrest must be specifically recognized. Women may be direct participants as fighters or they may perform supportive roles such as intelligence gathering, providing food, and nursing the wounded. This may place them at risk of persecution for a Convention reason. Many women may be targeted for persecution because of their race, nationality, clan membership, or association. In addition, women may be targeted because, as women, they have a particular symbolic status.
Women are particularly vulnerable to persecution by sexual violence as a weapon of war. As Crawley has noted:
[W]omen are specifically targeted for violence because of the symbolism of gender roles. The violation of women’s bodies acts as a symbol of the violation of the country (or equally a given political, ethnic or national group) . . . During war, women’s bodies become highly symbolic and the physical territory for a broader political struggle in which sexual violence including rape is used as a military strategy to humiliate and demoralize an opponent; women’s bodies become the battleground for ‘pay backs’, they symbolize the dominance of one group over another . . . It is important to recognize that sexual violence and rape may be an actual weapon or a strategy of war itself, rather than just an expression or consequence. In the context of armed conflict or civil war, the rape of women is also about gaining control over other men and the group (national, ethnic, political) of which they are a part.
Refugee law was formulated to serve as a back-up to the protection one expects from the State of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable. Where the risk of persecution stems from actions of a State agent or non-State agent that can and will be effectively suppressed by the national government, there is no need for this surrogate international protection. As a result many countries take into account whether the claimant can avail him or herself of a safe place in the country of origin.
This is sometimes called the internal protection, internal relocation, or internal flight alternative. The protection analysis requires an objective and forward-looking assessment of the situation in the part or parts of the country proposed as alternative or safe locations. Before refugee status can be denied on the grounds that the refugee claimant has an internal protection alternative available allowing him or her to relocate, it must be possible to say that he or she can genuinely access domestic protection which is meaningful. Four minimum conditions must be satisfied. First, the proposed site of internal protection must be safely and practicably accessible. Secondly, the proposed site of internal protection must eliminate the well-founded fear of persecution, that is, the place in question must be one in which the refugee claimant is not at risk of persecution for a Convention reason. Thirdly, in the proposed site of internal protection the individual must not be exposed to a risk of other forms of Convention or non-Convention-related serious harm, even if not rising to the level of persecution. Fourthly, meaningful domestic protection implies not just the absence of risk of harm, it requires also the provision of basic norms of civil, political, and socio-economic rights.
The first condition means that a woman cannot be required to put her or her children’s personal safety at risk. It also means that, where it is a requirement of the society in the country of origin that she travel in the company of a male relative but no such relative is available, the proposed site is not practicably accessible. Where the woman is responsible for the care of children, the proposed site of internal protection must be safely and practicably accessible by the group. The second condition is largely self-explanatory. It is the third and fourth conditions which have particular application to refugee claims by women. In many societies women do not enjoy equal rights or equal access to rights. It may be that women cannot access accommodation and other fundamental necessities or cannot do so unless accompanied by a husband or a male relative. In many flight situations this may not be possible. Equally, women on their own, particularly if accompanied by children, may suffer discrimination in all aspects of life due to custom, religion, or socially constructed roles. These features can be exacerbated by the rupturing of the social fabric which often accompanies armed conflict, civil unrest, or persecution.
The ability of women to access for themselves and their families basic civil, political, and socio-economic rights is of the first importance. They must be able to provide the family with enough to eat, to maintain the household, to take care of the children and, in many cases, to support their spouse or partner. It must also be remembered that in some circumstances women face particular problems as their difficulties can stem not only from their religion, race, ethnicity, or other minority status, but also because of their sex or gender. The denial of refugee status on the basis that an internal protection alternative exists in the country of origin cannot be premised on the implicit assumption that a woman must tolerate the denial of her basic human rights.