By Kirthi Jayakumar
Sexual violence in the context of armed conflict and disaster plays a major role in causing displacement, both internal and beyond the borders of the country in question. The 1951 Convention Relating to the Status of Refugees (Refugee Convention), however, does not specifically include sexual and gender-based violence as a categorical basis forcing one to flee their country without room for return because of the well-founded fear of persecution. In the early years of the Refugee Convention’s implementation on ground, most women’s claims for refugee status were treated as derivative of their husbands’ status – when they accompanied them (Farmer 2006).
According to the UNHCR, Over half the population of refugees, internally displaced, or stateless people are women and girls. 1 in 5 refugee women experience sexual violence of varying kinds - which include rape and sexual assault, kidnapping, forced marriages, and trafficking.
Despite these staggering statistics, refugee women have remained “peripheral figures” in the legislative instruments in place addressing conflict-related sexual violence, namely the Women, Peace, and Security Agenda. This absence is evident both within the scope of the 10 resolutions, as well as in most National and Regional Action Plans that action these resolutions on ground. Aside from Resolutions 1325, 1820, and 2242, the vulnerability of refugee women to sexual violence in armed conflict are not mentioned or addressed. While Resolution 1325 calls on state parties to respect the humanitarian nature of refugee camps, Resolutions 1820 and 2242 call for protection from sexual violence in UN-managed refugee camps and the inclusion of forced displacement as a basis for the adoption of sanctions, respectively. Even as Sexual and Gender-Based violence (SGBV) is not explicitly included as a reason for seeking refugee status, women who flee their countries because of their vulnerability to sexual violence can seek refugee status as “a member of a particular social group” (76). Guidelines issued by the UN High Commissioner for Refugees (UNHCR) in 1991 (78, 83) have identified gender-related and gender-based persecution as a basis for seeking refugee status (79). There are more inclusive definitions within regional instruments such as the Organization for African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa of 1969, the Cartagena Declaration on Refugees for Latin America of 1984, and the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence of 2011.
Sexual violence takes place across a peacetime-wartime continuum, and continues long into the post-conflict contexts, well into refugee camps as well. Women and non-binary people who seek asylum are not only likely fleeing their countries owing to the rampancy of sexual violence, but are also vulnerable to violence as they flee, including both structural and overt violence. For instance, authorities from the security sector have been known to perpetrate sexual violence against women, girls, and non-binary people seeking asylum (Fraser 2015). They are threatened with refoulement, forced to use sex to pay (Freedman 2016) for their passage, and are vulnerable to aggressive levels of violence. The continuum effectively does not end. Refugee camps become sites of violence, as well, as the case of the Kakuma Camp shows.
As Jensen (2019) noted:
“In a refugee setting, there are multiple causes of sexual gender-based violence. First, social surroundings can enable assault, where women are more vulnerable. Second, the presence/lack of aid organisations and security workers contribute to violence against women and girls opportunities (UNHCR, 1995:para. 1.6). Third, the camp design can permit violence against women and girlsG6 (Chakrabarti 2017:169). Hence, IASC’s (2015) gender-based violence Guidelines state: ‘All humanitarian personnel ought to assume gender-based violence is occurring and threatening affected populations’, and they should take action ‘regardless of the presence or absence of concrete evidence’. Moreover, ‘failure to take action against gender-based violence represents a failure by humanitarian actors’ (UNHCR, UNFPA, WRC 2016:9).”
Addressing the unique challenges of refugee women within the ambit of the WPS agenda can “revive its transformative potential” (Reeves and Holvikivi 2017). In addressing the concerns of refugee women within the ambit of the WPS agenda, in the words of Reeves and Holvikivi (2017), a gender inclusive approach to the WPS agenda is essential, as limiting heteronormative assumptions and the continuum of violence must be addressed, while men must be acknowledged as gendered agents.
Sexual violence across the peacetime-wartime continuum needs a systemic response that acknowledges that vulnerability does not end with the extrication of women from the primary site of persecution owing to armed conflict. In the process of fleeing their homes, women are exposed to security risks on the way. The arduous journeys they make are encumbered doubly with domestic burdens and health challenges. While the Article 16 of the Refugee convention suggests that all refugees are entitled to access the courts of the contracting countries, reality is very different (Stevens and Eberechi 2019).
This can change only if Refugee laws are gender-sensitive and human-centric rather than state-centric. In the words of Gulwali Passarlay, “The humiliation was hard to bear. Many of the faces I saw spoke of the same thing. In their own countries, these people had power, even the respect of their communities... It wasn't my fault I wasn't born in Europe. My home was a war zone - did that somehow make me less human?” The complete absence of systemic machinery to support their health, safety, and security needs implies an enabling environment for violence against them. A limited understanding of “conflict” within the scope of the WPS Agenda must be retired. War has no defined starting and ending points – and so far as a refugee is mid-journey, they are still within the “impact zone” of an armed conflict. That the decision to flee in itself is a hard one to make – abandoning everything one knows in pursuit of a safety that is neither promised nor likely to achieve – must be understood and prioritized. Survivors of conflict-related sexual violence carry the trauma they have faced back at home well into the refugee camps and the repetitive occurrence of sexual violence leaves them in a difficult cycle of physical and mental health impacts that need deep redress.
Alice Farmer, 2006, ‘Refugee Responses, State-Behavior, and Accountability for Human Rights Violations: A Case Study of Sexual Violence in Guinea’s Refugee Camps’ (2006) 9 Yale Human Rights & Development Law Journal 44-84 at 45.
Audrey Reeves and Aiko Holvikivi, 2017, "Keeping the 'refugee crisis' out of policymaking on WPS marginalises conflict-affected women in Europe,' https://blogs.lse.ac.uk/wps/2017/06/27/keeping-the-refugee-crisis-out-of-policy-making-on-women-peace-and-security-marginalises-conflict-affected-women-in-europe/
L Fraser, 2015, ‘Transgender woman survives rape, assault while fleeing,’ CBC News [online] available at http://www.cbc.ca/news/canada/toronto/trans-refugee-syria-1.3342724
Geert Philip Stevens and Oghenerioborue Esther Eberechi, 2019, A critical analysis of article 16 of the UN refugee convention in relation to victims of sexual violence in refugee camps in Africa. De Jure (Pretoria) [online]. 2019, vol.52, n.1, pp.163-180. ISSN 2225-7160.
Jane Freedman (2016) Sexual and gender-based violence against refugee women: a hidden aspect of the refugee "crisis", Reproductive Health Matters, 24:47, 18-26, DOI: 10.1016/j.rhm.2016.05.003
Mie A. Jensen, 2019, Gender-Based Violence in Refugee Camps: Understanding and Addressing the Role of Gender in the Experiences of Refugees. Inquiries Journal 11 (02), http://www.inquiriesjournal.com/a?id=1757