Gender-Based Persecution under International Refugee Law: Rethinking Article 1A(2) of the 1951 Refugee Convention in Sexual Violence and Asylum Claims

Abstract

Sexual violence is an ongoing issue for international refugee law because refugee laws were formulated without taking into account the experiences in which gender-based persecution is often experienced. Article 1A(2) of the Convention Relating to the Status of Refugees protects those who are outside the country of their nationality because they are unable or unwilling to obtain the protection of that country on a reasonable basis due to a well-founded fear of persecution for one of five Convention reasons. Sexual violence may be considered persecution, but rape, domestic abuse, forced marriage, sexual exploitation and conflict-related sexual violence still present challenging questions on the nature of seriousness of harm, whether a person qualifies as belonging to a particular social group, the link between persecution and Convention grounds, and whether there is effective state protection. This article uses the lens of doctrinal legal research to explore the interpretation of the Convention, UNHCR guidance, human rights instruments and comparative judicial developments.