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.