Oishik Sircar
Engendering Persecution: Refugee Law, International Protection and Violence against Women in South Asia.
(New Delhi: WISCOMP, 2006, 64pp.)

Oishik Sircar, a human rights lawyer and campaigner, has written a useful discussion paper in a WISCOM series that includes the situation of Afghan and Burmese women refugees in Delhi.  Sircar provides a broad overview of the difficulties of women refugees and asylum seekers, particularly in South Asia.  Although women and children make up the bulk of refugees and internally displaced persons — an estimated 75 per cent — it has taken the international community and individual states a long time to focus on the specific issues of women.  It was not until 1991 that the United Nations High Commissioner for Refugees (UNHCR) adopted guidelines for the protection of refugee women indicating that women and girls “have special needs that reflect their gender: they need, for example, protection against manipulation, sexual and physical abuse and exploitation, and protection against sexual discrimination in the delivery of goods and services.”

Guidelines, however, are only effective if they are put into practice. UNHCR staff are often overwhelmed by the number of refugees.  They must use local people who are not necessarily well trained and who may reflect local attitudes toward women.  Sircar gives examples of insensitive UNHCR interviewing of women concerning rape and disbelieving them when their accounts were confused.  UNHCR does not have a mandate in dealing with internally displaced persons, which in some cases such as Darfur, Sudan and Somalia are much greater than the number of refugees — that is persons who cross an international frontier.  The UNHCR does not have a mandate in countries which have not signed the basic 1951 UN Convention on the Status of Refugees and its 1967 Protocol.  The states of South Asia have not signed the Convention, claiming that its provisions are “Eurocentric”.  It must be admitted that the first motivation of the Refugee Convention was to deal with refugees displaced by World War II, followed by the massive expulsion of ethnic Germans from Poland, Central Europe, and the Baltic states.  However, by 1950 when the Convention was being drafted in Geneva, there had already been the large-scale population movements between India and Pakistan following partition and the 1948 Israel-Arab war with the uprooting of Palestinians and of Jews from the Arab countries.  Thus the drafters of the Convention, while dealing with the consequences of World War II, were well aware that issues of refugees were not limited to Europe.  However, modifying international law is a slow process, and it is only the 1967 Protocol to the Convention which makes it a universal instrument.

If the 1951 Convention is “Eurocentric”, this fact did not push South Asian states to develop adequate national legislation on refugees — much less common standards.  Thus when the UNHCR provides help in South Asian countries, it does so on the terms set by the individual state. UNHCR was called upon to help Afghan refugees in Pakistan — the number of refugees being too great for the government of Pakistan to cope with.  UNHCR has been able to help with Sri Lankan Tamil refugees with an office in Chennai but not with refugees from the Chittagong Hill Tracts in Northeast India.  As Sircar notes “Given the instant realities of South Asia, efforts should be geared towards developing comprehensive national laws that uphold the universal principles of international refugee protection while taking into account the distinctive traits of the region…The process of developing an asylum law regime in South Asia must include governments, NGOs and protection agencies alike because it is important to take a holistic view of this phenomenon.  Along with advocating and campaigning for the establishment of a national/regional asylum law regime, civil society institutions must urge states that are not signatories to these other international human rights law instruments, to accede to them and also press those states that have acceded but have not made enabling legislation to do so.”

The international community is becoming increasingly concerned with the causes behind the mass exodus of persons — refugees and the internally displaced.  Thus, the new concern with the causes of mass exodus is welcome.  Until recently, the UN system had generally gone on the assumption that security and peace-keeping are political matters and separate from emergency humanitarian efforts.  Since in nearly all the cases that have led to massive departures, the UN failed in its attempts at conflict resolution, humanitarian aid did what it could to bind up some of the wounds.  Both the UNHCR and NGOs working on direct relief avoided as much as possible political considerations.  Political analysis leads to controversy, to charges of being one-sided, of misunderstanding the historic complexities of the situation.  However, the persistent failure of the UN in the current conflicts which have led to the largest number of refugees and displaced — Afghanistan, Iraq, Sudan, Somalia — requires a more realistic look at the link between human rights violations, war , and mass exodus.

People flee their countries for a variety of reasons and usually as a result of a combination of factors rather than a single one: wars and insurrections, the breakdown of law and order, oppression, persecution and the denial of opportunities.  Some people may not have been singled out for repression; however they feel that their country cannot provide an adequate future and wish to try their chance elsewhere.  Others, especially those who represent ethnic or religious minorities, may be deliberately forced out.

Oishik Sircar looks at the three stages in the refugee-displacement process and the ways which each stage may impact women directly.  The first stage is the home-domestic starting point.  In addition to violent conflict, poverty and ecological decline which influence both men and women, there is gender-based violence and discrimination.  There are examples of direct violence such as rape, genital mutilation, domestic violence including marital rape, bride burning, forced marriages and honour killings. There is also structural violence, that is,  repressive gender-discriminatory laws and social mores that are offensive to women or which limit them from engaging in certain activities.

The second stage is that of flight and resettlement in camps.  The conditions of flight are usually difficult.  People may be attacked; there are often bands of informal armed militias as well as bandits; children can be separated from their mothers.  Food and water may be difficult to get.  Refugee camps present numerous problems, and as we see in Darfur, Sudan, women can be attacked or raped leaving the camps in search of wood for fires.  Camps can result in physical, sexual or psychological harm despite the best efforts of dedicated NGOs who usually administer such camps.

The third stage is in leaving the camps for more permanent resettlement in the host country.  There are always long and difficult administrative processes, especially if the woman is illiterate and has the daily care of children.  In some societies, women are prohibited from interacting with strangers, including government authorities.  Women are often thought of “economic refugees” by government officials.  Many governments fear that women refugees would open the floodgates to illegal immigrants.

There are two programmes of action which arise from Oishik Sircar’s discussion paper.  The first is to create the conditions which would discourage flight.  This requires ways of preventing armed conflict (Afghanistan, Iraq, Sri Lanka, Sudan), of modifying long-lasting dictatorships (Burma, North Korea) and fighting deeply-rooted poverty (Nepal, Bangladesh).

The second programme is to create better asylum policies and better structures for socio-economic migrants.  Unfortunately it is unlikely that the UN or NGOs will be able to prevent all violent conflicts.  Thus, there needs to be better asylum policies both of a legal and administrative nature.  There needs to be more and better trained administrators for dealing  with refugees, and NGOs which can provide advice and support.  NGOs must be better prepared to move quickly to set up camps for the displaced and to offer advice on how refugees can organize themselves.  In addition to refugees, there will be an ever-growing migration for economic and social betterment.  Even good development planning and economic growth cannot provide jobs for all the youth coming onto the labour market nor jobs for those in the rural to urban flow.

An increasingly large number of people will leave their home areas to seek a better life elsewhere.  Governments need to be better prepared for these flows by doing other things than building fences.  Sircar has a sad annex of a visit to a town on the West Bengal – Bangladesh border where electrified fencing is set up to prevent infiltration.  But as illustrated by walls between Israel and Palestine or Mexico and the USA, walls do not keep people from moving if violence pushes and a vision of a better life pulls.  This discussion paper provides a useful framework for developing these two programmes.

Rene Wadlow is the representative to the United Nations, Geneva, of the Association of World Citizens.