Domestic Violence and Asylum: Toward a Working Model of Affirmative State Obligations

While the 1951 Convention is no longer limited geographicallyand its definition of a refugee is not linked to any particularcrisis or place, the source of persecution and the role of thestate with respect thereto has proved problematic. Domesticviolence claims have suffered particularly because of theseshortcomings, as these cases have been uneasy fits within doctrine.Though the Convention definition ordinarily envisions the stateas persecutor, domestic violence follows a different course.Almost inevitably, its victims are persecuted by their husbands.As ‘non-state actors’, they have frequently andwrongly eluded the Convention norms, revealing a tragic protectiongap in the Convention. An asylum seeker must prove that shehas a well-founded fear of persecution based on race, religion,nationality, membership of a particular social group or politicalopinion. Despite the seriousness of the claim, if the reasonfor the threat does not lie in one of those five sources, aproper asylum claim has not been made. Worse, however, the sourceof the persecution, a non-state actor, often blocks Conventionprotection. This paper will analyze these stumbling blocks toasylum seekers. It will posit the notion that legitimate asylumseekers have been marginalized by their home countries, renderedvirtual non-citizens. Whether through complicity, neglect orsheer indifference or incompetence, these home countries are‘failed states’, failures in not having providedfull rights of citizenship throughout their populations. Inconjunction with that, it will examine the standards for determiningwhen the non-state actor is a persecutor within the Conventionsense. Finally, it will set out factors to be used to test thefailed state for litigation purposes.     

Human Rights, Refugees, and The Right 'To Enjoy' Asylum

Increasingly hard-line and restrictive asylum policies and practicesof many governments call into question the scope of protectionsoffered by the 1951 Convention relating to the Status of Refugees.Has the focus on the 1951 Convention been to the detriment andsubordination of other rights and standards of treatment owedto refugees and asylum-seekers under international human rightslaw? Which standard applies in the event that there is a clashor inconsistency between the two bodies of law? In analysingthe interface between international refugee law and internationalhuman rights law, this article looks at the right to familylife and the right to work. Through this examination, contentand meaning is offered to the almost forgotten component ofthe right ‘to enjoy’ asylum in Article 14(1) ofthe Universal Declaration of Human Rights 1948.     

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

UNHCR issues these Guidelines pursuant to its mandate, as containedin the 1950 Statute of the Office of the United Nations HighCommissioner for Refugees in conjunction with Article 35 ofthe 1951 Convention relating to the Status of Refugees and ArticleII of its 1967 Protocol. These Guidelines complement the UNHCRHandbook on Procedures and Criteria for Determining RefugeeStatus under the 1951 Convention and the 1967 Protocol relatingto the Status of Refugees (1979, re-edited, Geneva, January1992). They should additionally be read in conjunction withUNHCR's Guidelines on International Protection on gender-relatedpersecution within the context of Article 1A(2) of the 1951Convention and/or 1967 Protocol relating to the Status of Refugees(HCR/GIP/02/01) and on "membership of a particular social group"within the context of Article 1A(2) of the 1951 Convention and/orits 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/02),both of 7 May 2002. These Guidelines are intended to provide interpretative legalguidance for governments, legal practitioners, decision-makersand the judiciary, as well as for UNHCR staff carrying out refugeestatus determination in the field.     

Redundant or Essential? How Politics Shaped the Outcome of the 1967 Protocol

The 1967 Protocol Relating to the Status of Refugees has beendescribed as an unnecessary addendum to the 1951 ConventionRelating to the Status of Refugees. However, if the 1967 Protocolwas superfluous, why did the United Nations High Commissionerfor Refugees in the early 1960s insist on its development? Thisarticle seeks to establish that the 1967 Protocol was originallyintended to encompass the broader concerns of African and Asianstates concerning refugee populations in their region. However,the political influence upon the development of internationalrefugee law radically altered the UNHCR's endeavour to makethe 1951 Convention universally accessible.     

Fear of lack of adequate medical care not well-founded fear of persecution

The Federal Court-Trial Division refused to set aside the Immigration and Refugee Board's (IRB) decision that a refugee claimant was not a Convention refugee because she had not proven a well-founded fear of persecution based on her HIV status or AIDS diagnosis. The court emphasized that the fear of a lack of adequate medical treatment, without a clear link to a ground under the United Nations Convention relating to the Status of Refugees, does not constitute a well-founded fear of persecution.     

Rights,women, and the state of Pakistan

Violence against women is a problem around the world. Addressing the issues of physical and sexual violence against women has been a complicated endeavor for criminologists. Much of the traditional criminological research on violence against women has frequently focused on rape as a crime of power between individuals. However, this framework has been expanded to incorporate the analysis of rape during times of war and rape as a state crime. In these cases, rape serves a broader purpose within the military and social structure. By focusing on the specific case of the gang rape of Mukhtar Mai, the goal of this paper was to demonstrate and analyze the role of the state in many of these crimes. Mukhtar Mai’s case should not be understood in isolation, but as a way to illuminate the role of the state in these numerous crimes.     

The Oppressed, the Suspect, and the Citizen: Subjectivity in Competing Accounts of Political Violence

By juxtaposing religious, legal, and victims'accounts of political violence, this essay identifies and critiques assumptions about agency, the individual, and the smte that derive from liberal theory and that underlie U.S. asylum taw. In the United States, asylum is available to aliens whose gooernments fail to protect them from persecution on the basis of their race, religion, political opinion, nationality, or social group membership. Salvadoran and Guatemalan immigrants have challenged this definition of persecution with their two-decade-long struggle for asylum in the United States. During the 1980s, U.S. religious advocates and solidarity workers took legal action on behalf of what they characterized as victims of oppression in Central America. The asylum claims narrated by the beneficiaries of these legal efforts suggest that repessiwe pactices rendered entire populations politically suspect. To prevail in immigration court, however, victims had to prove that they were individually targeted because of being somehow "different" from the population at large. In other words, to obtain asylum, persecution victims had to explain how and why their actions had placed them at risk, even though persecution obscured the reasons that particular individuals were targeted and thus rendered all politically suspect.     

Sexual violence among men in the military in South Korea

This research is about sexual violence among men in the military in South Korea. The authors investigated the frequencies, causes, and circumstances surrounding sexual violence and looked for characteristic features of sexual violence among men in the military in South Korea. They found a high frequency of physical sexual violence and a high level of repetition of sexual violence. Of perpetrators, 81.7% had themselves been victimized. However, the soldiers tended to minimize sexual violence, preferred not to address the issue if possible, criticized or ignored the victims, and did not trust the reporting procedures in place. The authors found that sexual violence was mobilized as a tool in the military to control hierarchy and to create certain masculinities. Regarding the relevance of masculinity, as a salient feature of militaries in general, they believed it might emerge as a common feature across national and cultural differences.     

The Legal Status of Afghan Refugees in Pakistan, a Story of Eight Agreements and Two Suppressed Premises

Over 25 per cent of present day refugees enjoy asylum in Pakistan,most of them having been there for more than a quarter of acentury. Pakistan is not, however, a party to either the 1951Convention relating to the Status of Refugees or the 1967 Protocolrelating to the Status of Refugees. The legal status of theAfghan refugees it hosts is therefore not a foregone conclusion,even though they were considered to be refugees on a prima faciebasis during the first two decades of their exile in Pakistan.This article identifies the legal status of the Afghan refugeeson the basis of a series of agreements Pakistan concluded withUNHCR and also occasionally with Afghanistan. By virtue of thelast of the series of agreements, Afghan refugees can returnto Afghanistan under a UNHCR-assisted voluntary repatriationprogramme until December 2009. In view of the fact that allAfghans have been granted leave to stay in Pakistan until thesame date, many are expected to stay in Pakistan rather thanreturn with the assistance of UNHCR. Unlike the preceding agreements,the last one does not address the fate of those who will stillbe in Pakistan upon completion of the voluntary repatriationprogramme. It seems therefore imperative to identify the legalstatus and corresponding entitlements of the Afghan refugees.It is argued that the prima facie recognition of refugee statuscan be sustained on the basis of the agreements referred to.In addition it is argued that the current ‘profiling’exercise of UNHCR, even while presumably beneficial for themost vulnerable refugees, is irreconcilable with the statusand entitlements of the Afghan refugees, and the same holdstrue with respect to the usual practice of ‘screening’those refugees who have opted not to return under a voluntaryrepatriation programme. An alternative that would be reconcilableis a collective cessation of refugee status if and when thesituation in the country of origin so warrants, provided individualrefugees may contest this.     

Against the Alienage Condition for Refugeehood

Law and Philosophy - Under the 1951 Refugee Convention, there are two necessary conditions for refugeehood: (1) a well-founded fear of persecution for reasons of race, religion, nationality,...     

Burundi’s rebel groups and the stigmatisation of wartime sexual violence

ABSTRACT

Despite assumptions about the ubiquity of wartime sexual violence, some armed actors work hard to generate negative views of rape and other abuses. This article qualitatively explores rebel group stigmatisation (and stigma) of wartime sexual violence and prohibitive normative practices. Regularly discussed with reference to the shaming of victims or survivors, stigmatisation is nonetheless utilised here as a concept for understanding how sexual coercion is “made” deviant and consequential for potential perpetrators. Two rebel groups from Burundi’s civil war (1994–2008), CNDD-FDD (National Council for the Defence of Democracy-Forces for the Defence of Democracy) and FNL (Palipehutu-Forces for National Liberation), are compared. The FNL stigmatised rape and sexual assault, and the nature and quality of its practices shaped negative social norms surrounding rape. The article’s main contribution is to demonstrate the need to deepen and widen the evidence base on the prevention of wartime sexual violence.     

The future of claims to resist removal by non-nationals suffering from HIV/AIDS

The focus of this article is to consider the difficulties facing non-nationals suffering HIV/AIDS to resist removal to their countries of origin where there is no or inadequate medical treatment. The link between HIV/AIDS and migration will be explored illustrating the vulnerability of displaced people to the virus. The current UK legal position for those attempting to resist removal in such circumstances will be explored. The article will explore two potential avenues that may prevent removal of non-nationals with HIV/AIDS to countries with limited access to the necessary treatment. In the first instance consideration of Article 3 European Convention on Human Rights (ECHR) will be made with particular emphasis on mother and child claims. The second argument will examine the potential for refugee claims under Article 1A (2) Refugee Convention 1951 where an applicant may be able to demonstrate a well-founded fear of persecution because of membership to a particular social group. The authors will particularly emphasise the argument that in certain countries sufferers will experience ostracism and victimisation where its severity may amount to treatment contrary to Article 3 ECHR and persecution under the Refugee Convention. Vanessa Bettinson and Dr Alwyn Jones, senior lecturers, De Montfort University. The authors would like to thank Professor Tony Barnett at London School of Economics for his useful and invaluable thoughts and comments. We would also like to thank our colleague Gavin Dingwall and the students in our 2006/07 Immigration and Refugee Law seminars for their very helpful feedback.     

Intersecting Issues Involving Asylum in the United States and Cases Arising Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction

The issue of immigration status has become the focal point in some cases arising under the 1980 Hague Convention on Child Abduction. Asylum claims affect both substantive and procedural issues that are presented to state and federal courts. A nexus has developed between undocumented immigrants who are parties to a Hague case, and issues of habitual residence, acclimatization, and grave risk. Asylum claims have forced courts to consider the viability of such claims, requests for stay of Hague cases pending the outcome of asylum claims, the likelihood of deportation, and the effect of grants of asylum on the particular issues in the case. Where asylum has been granted to either a parent or child, substantial consideration has been given to the asylum determination by the court hearing the Hague case.     

Perpetuating myths of women as false complainants in rape cases in India: culture V. The law

ABSTRACT

Despite public outrage over our global “rape culture,” sexual offences continue to be characterised by low levels of reporting, prosecution, and conviction in many countries. Attrition rates for sexual assault internationally, although varying in pattern, are consistently high. As a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Declaration on the Elimination of Violence against Women (DEVAW), the Indian Government acknowledges the need to afford better protection to victims of gender violence. Assessing the effect of rape law reform in India, using crime statistics and a survey of recent judgments from the Delhi District Courts, the author argues that the legislature has failed systematically to address the many injustices experienced by women who allege rape. The Indian Parliament responding to the moral panic generated by the Delhi gang rape case with knee-jerk reforms, focused mainly on increasing penalties, maintaining an outmoded view of rape as a crime against morality rather than as a violation of gender rights and human rights. By closely investigating the sociocultural context in which sexual crimes against women occur in India, the author reveals that India’s “cultural” arguments for rejecting further reform (such as repeal of the marital rape immunity) are merely entrenched gender biases, bearing strong parallels to nineteenth century English common law perceptions of women who allege rape as a class of false complainants.     

Asylum Claims and Drug Offences: the Seriousness Threshold of Article 1F(b) of the 1951 Convention Relating to the Status of Refugees and the UN Drug Conventions

Asylum claims lodged by individuals who were involved in drugactivities prior to their entry into the country of asylum raisecomplex questions as to whether they have committed a seriousnon-political crime under Article 1F(b) of the 1951 Conventionand thus shall be excluded from refugee protection. The 1988 UN Convention against Illicit Traffic in Narcotic Drugsand Psychotropic Substances (Trafficking Convention) —which is the relevant international framework for drugs in thefield of international criminal law — indiscriminatelyconsiders all forms of supply related drug offences as ‘seriouscriminal offences’, irrespective of individual criminalresponsibility. This conflicts with the complex nature of thedrug industry particularly in countries affected by armed conflictand proportionality considerations inherent to Article 1F(b). Articles 31 and 32 of the Vienna Convention on the Law of Treatiesprovide a possibility to reconcile the ambiguous wording ofthe Trafficking convention with Article 1F(b) by means of interpretation.Offences for personal consumption as the least serious drugoffences do not reach the seriousness threshold of Article 1F(b).Trafficking offences in turn attain the seriousness thresholdonly if aggravating circumstances prevail over mitigating circumstances,and if there are no grounds for rejecting individual responsibilityor defenses to criminal liability. International, large-scaleactivities carried out by transnational organized criminal groupsare factors that make drug offences most serious.     

Gender-Related Refugee Claims: Expanding the Scope of the Canadian Guidelines

In 1993 the Immigration and Refugee Board of Canada adoptedguidelines entitled ‘Women Refugee Claimants Fearing Gender-RelatedPersecution’. The Guidelines represent a cutting edgeapproach and have helped to guarantee a refugee determinationprocess for women refugees that is more sensitive to gender-relatedclaims of asylum. However, the author demonstrates that theconcept of gender-based persecution, as it is presently defined,makes it difficult for members of the Board to systematicallyevaluate all types of gender-related persecution, to which certainmen and women are subjected. The author examines asylum claimsbased on sexual orientation and identity, as well as those basedon persecution specifically inflicted upon men, and argues thatthe gender-specific analytical framework adopted by the Immigrationand Refugee Board is relevant to these cases. The author concludesthat change is needed in the form of a more clearly definedsocial constructionist interpretation of gender. Clearly, defining‘gender’ as a socially constructed concept wouldreveal the gender-specific factors that interfere with the rightsof certain men and would make more visible the links betweengender and other causes of persecution, like sexual orientation.     

论朝鲜“脱北者”的国际法地位及我国的对策

近年来,朝鲜"脱北者"问题逐渐成为地区乃至国际热点问题,中国在该问题上以遣返为主的政策也日益面临来自其他国家的压力。从1951年《关于难民地位的公约》的规定和相关国际实践来看,"脱北者"是否具有难民地位不能一概而论,而是要具体问题具体分析;我国的现有政策总体上无可非议,同时可以考虑按照国际条约,给予那些确因政治原因出逃的"脱北者"们国际法上的难民地位。此外,我国还有必要建立健全处理难民及相关问题的机制。     

Legally Queer: The Construction of Sexuality in LGBQ Asylum Claims

Using court decisions, interviews with legal actors, and ethnographic observations, this paper analyzes the development of sexual identity classifications for sexual minorities seeking asylum in the United States and argues that the adjudication of such claims works to consolidate and regulate sexual identities but also creates possibilities for recognizing marginalized queer identities. Asylum seekers must prove their sexual identities, and immigration officials must classify claimants as belonging to a protected group. At the inception of queer asylum law in 1990, protected categories were highly circumscribed, but the indeterminacy of the law allowed advocates and asylum seekers to challenge existing categories and stake out new claims based on their sexualities. Against the backdrop of extant criticisms of the asylum process for queers, this paper suggests that the way asylum law has been elaborated, adapted, and interpreted, particularly in approximately the past decade, offers possibilities for making unique identity claims that are not recognized in existing scholarship.     

The prevalence of sexual violence in prison: the state of the knowledge base and implications for evidence-based correctional policy making

The issue of prison violence and misconduct has been the subject of considerable academic attention, yet particularized areas of violent victimization within prisons have gone relatively unnoticed. One such area involves sexual violence in prisons. Scholars have argued that sexual violence contributes to a host of institutional and individual-level problems, yet the primary limitation of this body of literature is that it has been largely confined to methodologically questionable studies of prison rape prevalence. The purpose of this study, therefore, is to critically take stock of what is and what is not currently known about the prevalence of prison sexual violence. In doing so, it highlights the direction that future research should take so that evidence-based policies concerning prison sexual violence may be developed.     

Second‐hand Emotion? Exploring the Contagion and Impact of Trauma and Distress in the Asylum Law Context

Applicants' accounts of experiences of fear, trauma, violence, and persecution are central to the process of claiming asylum. These narratives are, at a human level, primed to provoke emotional responses, not only in the narrator but also in those to whom the account is relayed. In this article, we explore the vectors of emotionality that permeate asylum decision‐making in the United Kingdom, focusing particularly on the risk faced by the professionals involved of suffering vicarious trauma. More specifically, based on a series of 104 semi‐structured interviews with asylum stakeholders and observation of 48 appeals to the Immigration and Asylum Chamber of the First‐tier Tribunal, this article identifies the adoption by legal and quasi‐legal professionals of emotional coping strategies – of detachment and denial of responsibility – that risk being deployed in maladaptive ways that jeopardize the prospects for justice.