Sex / Gender – Why?

1. Sex / Gender – Why? • To ensure that women’s asylum claims are fully considered • To ensure that the asylum determination process is fully accessible to both women and men • To highlight the particular evidential problems that may be faced by women

2. Persecution • “Sustained or Systemic violation of human rights demonstrative of a failure of state protection” • Gender Specific Harm • Gender Related Persecution • Shah and Islam (1999 HL) – Lord Hoffman • Persecution must be understood w.r.t. international human rights law

3. Persecution • Discrimination • 1979 UN Convention on the Elimination of All Forms of Discrimination Against Women • UK IAA Guidelines • “ consequences of a substantially prejudicial nature” • Shah and Islam v SSHD – HL – Lord • “the distinctive feature of this case is that in Pakistan women are unprotected by the State: discrimination against women in Pakistan is partly tolerated by the State and partly sanctioned by the State” • Discrimination or Cultural practice?

4. Persecution: Violence Against Women • 1993 UN Declaration on the Elimination of Violence Against Women • Article 1 • … any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women … whether occurring in public or in private life…

5. DEVAW – Article 4 • States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations • States should pursue by all appropriate means and without delay a policy of eliminating violence against women • Exercise due diligence to prevent, investigate and, …, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons

6. Genocide and Sexual Violence • Prosecutor v Akayesu ICTR (1998) • Rape…a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. • Serious bodily or mental harm • Designed to prevent births within a group

7. Crimes Against Humanity • Rome Statute of the International Criminal Court (article 7) • Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; • Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender grounds

8. Torture • Aydin v Turkey – European Ct of Human Rights • …the accumulation of acts of physical and mental violence inflicted on Aydin and the especially cruel act of rape … amounted to torture … • Jabari v Turkey • returning Jabari to Turkey where she would face punishment for adultery by stoning or flogging would be treatment contrary to article 3 …

9. Failure of State Protection • Non-state agent persecution • The State is unable or unwilling to provide protection • Internal Protection Alternative • Shah and Islam (1999) • …what makes it persecution in Pakistan is the fact that according to accepted evidence, the State was unable or unwilling to provide any protection against domestic violence