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Tuesday, 12 April 2011

Why a new European domestic violence convention may help asylum seekers

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Source: Women's Asylum News

By Fadela Novak-Irons, UNHCR Bureau for Europe, Policy Officer (personal capacity)

In 2009, the Council of Europe (CoE) Ad Hoc Committee on Preventing and Combating Violence against Women and Domestic Violence (CAHVIO) embarked on the challenge of drafting a Convention on preventing and combating violence against women and domestic violence. The purpose of the Convention is to set legally binding standards for all forms of violence against women, and therefore bridge some of the existing gaps in terms of human rights protection.

The holistic approach adopted for this Convention seeks to improve the criminal law responses, including restraining and barring orders, enhance the role of law enforcement agencies in responding to calls for assistance, set state obligations to offer adequate support and protection to all victims of violence against women, address the need to step up activities in the area of education, training of professionals and general awareness raising, and address the issues specifically faced by migrant and asylum seeking women.

The Terms of Reference of CAHVIO required the Committee to take into account existing relevant regional and universal standards in the fields of human rights, gender equality, criminal law and judicial cooperation, including case-law from the European Court of Human Rights. 2 Of relevance to the work of CAHVIO on gender-based violence and asylum are also two PACE Resolutions, the Resolution on gender-related claims for asylum, 3 which provides recommendations to ensure that asylum procedures 4 and the decision process 5 are sufficiently sensitive to gender-related claims; and the Resolution on Improving the quality and consistency of asylum decisions, 6 which calls upon Council of Europe member states to ensure that the assessment of evidence is gender- and child sensitive, 7 and that training is provided to all those involved in the asylum process including on gender and age sensitivity. 8

UNHCR engaged with CAHVIO from the early stages in the context of its supervisory responsibility, which is set out under its Statute as well as in Article 35 of the 1951 Convention relating to the Status of Refugees (1951 Convention). Its Statute confers responsibility on UNHCR, among other things, for supervising international conventions for the protection of refugees. 9 Mirroring these responsibilities, States have the obligation to cooperate with UNHCR. Given how essential appropriate asylum procedures are to States’ compliance with their obligations under the 1951 Convention, UNHCR had, in the context of CAHVIO, the responsibility and authority to pronounce itself on the provisions contained in the draft Convention and the safeguards they contain regarding gender-based violence and asylum claims, and non-refoulement i.e. ensuring that nobody is sent back to persecution.

UNHCR first issued general comments to CAHVIO in April 2009, 10 and later general recommendations on the draft Convention in March 2010, in which it argued among other things for a chapter on international protection separate from the section on migration, the recognition of gender-based violence as a form of serious harm leading to the grant of subsidiary/complementary protection, a gender-sensitive interpretation of the five Convention grounds, and the inclusion of a clause on nonrefoulement.

In the light of discussions in CAHVIO, UNHCR felt that more detailed comments on the two draft articles relating to gender based violence and asylum may be useful to guide the CAHVIO members. UNHCR therefore issued Comments on then Articles 48 and 48 bis of the Draft Convention (now draft Articles 60 and 61) in November 2010, 11 and called upon the member states to adopt the text of the draft Convention as it was. The Comments refer extensively to existing legislation in the European Union and the CoE, jurisprudence, UNHCR Guidelines, 12 and UNHCR ExCom Conclusions.

In its November 2010 Comments, UNHCR argued that gender-based violence may amount to persecution within the meaning of Article 1A(2) of the 1951 Convention. Where it did not satisfy the criteria for protection under Article 1A(2) of the Convention, it could nonetheless constitute a form of serious harm giving rise to a need for complementary/subsidiary protection. UNHCR has long advocated for the importance of interpreting the refugee definition with an awareness that gender can influence or dictate the type of persecution or harm suffered, as well as the reasons for this treatment.

UNHCR has also supported a gender-sensitive interpretation to be given to each of the five 1951 Convention grounds. In that context, UNHCR has pointed out that gender-based violence may not solely or automatically fall within the ground of  “membership of a particular social group”, but may amount to persecution linked to other Convention grounds, thus requiring scrutiny of whether one of these other grounds might apply. UNHCR then provided guidance on what would be expected from states under the provision relating to the development of gender-sensitive reception conditions and support services for asylum-seekers as well as gender guidelines and gender-sensitive asylum procedures.

The Comments highlighted on the one hand, the gaps in state practice, as shown by the recent UNHCR study on the implementation of the Asylum Procedures Directive carried out in 12 European Union Member States,13 and on the other hand, UNHCR’s observations through its work with refugees across Europe regarding asylum seeking women’s specific protection concerns and worries. In particular, single women often feel exposed to attempts of exploitation in different ways. At the reception centres, some women complain about being sexually harassed by single men and feel unable to address this. Other women raise concerns that local men are aware that they are financially vulnerable and would target them outside the centre to solicit sexual favours. The draft provision in the Convention would go a certain way to address these concerns.

Finally, the Comments provided explanations on the relevance of the cornerstone principle of nonrefoulement to the issue, and the applicability of the protection granted under Article 3 of the European Convention on Human Rights (ECHR), which is absolute and unconditional in scope.

The draft Convention has now been submitted to the Parliamentary Assembly for opinion. This nonbinding opinion will be taken into account by the Council of Ministers at the time of adopting the Convention at its 11 May 2011 session, under the Turkish Presidency. Subsequently, the Convention will be open for signature and ratification by member states of the CoE, and will enter into force following the ratification and accession of five state parties. The Convention will then have to be enacted into national legislation for persons to be able to avail themselves of the rights afforded by the Convention, in particular in those member states where international treaties do not have direct effect at national level. In some states, however, even in the absence of specific national legislation or procedures for applying the Convention’s provisions, it may be possible for people to invoke its principles before national courts or other bodies.

If adopted:
  • the Convention will re-affirm well established international and regional standards, and will clearly articulate their relevance to gender-based violence as it pertains to asylum claims and asylum reception condition and procedures.
  • the Convention will allow more consistency among member states in dealing with gender-based asylum claims, and promote compliance with state obligations under the 1951 Convention and the CEDAW provisions relating to access to justice and equality before the law.
  • the Convention will also contribute to bridging a gap in the way the often complex gender-based asylum claims made by women are handled and examined.
The two draft articles on asylum in this Convention would provide the legal grounds to safeguard asylum-seeking women from the violence they are seeking protection against, and would ensure the protection of these women in reception centres, to avoid their re-victimization. Without them, the good intentions to protect all women from violence, irrespective of status, may prove insufficient.

2 CAHVIO, Case Law of the European Court of Human Rights on Violence against Women, Document prepared by Christine Chinkin, London School of Economics and Political Science, 4 May 2009, CAHVIO (2009) 10
3 CoE PACE, Resolution 1765 (2010), Gender related claims for asylum, adopted by the Assembly on 8 October 2010
4 Idem, para 9.1 – 9.8.
5 Idem, para 10.1 – 10.9.
6 CoE PACE, Resolution 1695 (2009), Improving the quality and consistency of asylum decisions in the Council of Europe member states, adopted by the Standing Committee, acting on behalf of the Assembly, on 20 November 2009.
7 Idem, para. 8.2.1.
8 Idem, para. 8.5.1.
9 Idem, paragraph 8(a): UNHCR fulfils its mandate inter alia by, “[p]romoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto.”
10 UNHCR Comments to the First Meeting of the Ad Hoc Committee on preventing and combating violence against women and domestic violence, 6-8 April 2009.
11 UNHCR, Comments on Articles 48 and 48 bis of the Draft Council of Europe Convention on preventing and combating violence against women and domestic violence, November 2010.
12 UNHCR, Guidelines on International Protection: Gender-related persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 7 May 2002.
- UNHCR, Guidelines on International Protection No. 2: “Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 7 May 2002 - UNHCR, Guidelines on International Protection: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked, 7 April 2006 - UNHCR, Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity, 21 November 2008 - UNHCR, Guidance Note on Refugee Claims relating to Female Genital Mutilation, May 2009.
13 UNHCR, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice. Key Findings and Recommendations, March 2010.
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