Refugee women as victims of intimate partner violence: Forever vulnerable?

• Jurisdiction: South Africa
• Author: Khan, F.
• Date: 14 September 2020
• Pages: 227-265
• Published date: 14 September 2020

227

Refugee women as victims of intimate

partner violence: Forever vulnerable?

FATIM A KHA N,* CEC IL E SACKE YFIO†

and LILIYA PARA KETSOVA‡

Gender-based violence aga inst ref ugees has received increa sing

attention over the last two decades. However, the tendency

worldwide, as wel l as in South A frica, has been to focus on ‘truly

horric’ and ‘cultura lly grotesque’ acts while ignoring the more

invisible for ms of gender-based violence. The tendency to focu s

on the conditions of t he country of origin, rather than indiv idual

cases, ca n hinder women’s access to asylum on the g round of intimate

partner v iolence if their cou ntry of or igin is hailed a s having a more

progressive approach to women’s rights. This article seeks to br ing

the more invisible harm to the fore and will focus on intimate

partner v iolence aecting fema le refugees in their cou ntries of origin

and in their host country, South Africa. We make recommendations

for South Afr ica to recognise intimate par tner violence a s a valid

asylum cla im, to ta ilor eect ive service s for female ref ugees who are

victim s of intim ate part ner violence in South Africa, and to fu ll its

international and domestic lega l obligat ions to refugee women by

adopting a transfor mative repa rations f ramework.

I IN TRODUCTION

When Raha f Mohammed Al- Qunun sought as ylum on the grounds

of domestic violence, the United Nat ions High Com missioner for

Refugees (UNHCR) carried out a refugee status determination

and liai sed with the government of Th ailand to gra nt her temporary

protection. The Canadian government granted her asylum and

resettlement within a day.1 Scholars such as Audrey Macklin

* A ssocia te Professor in Law and Di rector of the Ref ugee Ri ghts Unit ,

Universit y of Cape Town.

† Re searcher, Refugee Rig hts Unit, Universit y of Cape Town.

‡ C lara Bel eld and Henr y Bates O verseas Fe llow, Refugee R ights Un it,

Universit y of Cape Town.

1 L C ecco ‘Raha f al-Q unun lands in Toronto after l ong journey t o safety’ 12

Januar y 2019, available at ht tps://www.thegua rdian.co m/world/2019/jan/12/

rahaf-al-qunun-la nds-in-toronto-after-long-journey-to-s afety-saudi-teen-canada.

2020 Acta Juridica 227

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228 VIOLENCE AGAI NST WOMEN

believe that this was possible because Canada’s interpretation of

domestic violence ‘pivots around c ultural chauvin ism’.2 Al-Qunun

is from a countr y that is largely viewed a s being oppressive towards

women,3 and thus it was not dicult for Canada to accept her

asylum claim. Nonetheless, including domestic violence as a form

of gender-based violence,4 and therefore a ground for asylum, is

rightly h ailed as a breakthroug h for women’s human rights.5 Given

that the granting of asylum on the grounds of domestic violence

is still an emerging category in refugee law, this decision has far-

reaching implications.

However, this approach places too much emphasis on the

conditions of the countr y of origin, at the expense of perform ing

an individual assessment, as required by the 1951 United Nations

Convention Relating to the Status of Refugees (UN Refugee

Convention).6 It also reinforces the notion of some countries as

‘safe count ries’,7 and leaves women who come from ‘safe cou ntries’

without protection. This article intends to address the following

questions: Would Rahaf have been granted asylum had she ed

a country such as South Africa that is hailed for its progressive

human rights stance? Would she be assured of her physical safety if

she was granted asylum in South Africa? And should South Africa

adopt a reparations framework to address any violations to her

2 R B huyan et al ‘Fleeing do mestic violence from a “sa fe” country? Refuge e

determ ination for Mexican asylum seeker s in Canada’ (2016) 32 Refuge 95.

3 M B enjamin Kingdom o f the Unjust: Behind the US– Saudi Connection (2016) 64.

4 C EDAW denition of di scri minat ion agai nst women: The C onvention

denes d iscri minat ion agai nst women as ‘an y disti nction, exclu sion or

restri ction made on the basi s of sex which has the eect or pu rpose of impair ing

or nulli fying the recog nition, enjoy ment or exercise by women, irr espective of

their marital status, on a b asis of equality o f men and women, of hum an rig hts

and fund amenta l freedom s in the polit ical, econ omic, social, cult ural , civil or

any other eld.’ Avail able at http://www.un.org/womenw atch/daw/cedaw/.

5 D A nker ‘Ref ugee stat us and viol ence agai nst women in the “domestic”

sphere: The non-s tate actor question?’ (20 01) 15 Georgetown Immigration Law

Journal 391.

6 189 U NTS 150 was ad opted on 25 July 1951 in Genev a and entered i nto

force on 22 Apri l 1954. Article 3 of the UN Ref ugee Convention states: ‘T he

Contract ing Sta tes shal l apply the prov isions of the C onvention to ref ugees

without di scrim inat ion as to race, religion, or c ountry o f origi n.’ See also

UNHCR ‘Ba ckground Note on Safe Cou ntry Concept and Ref ugee Status’ (26

July 1991) EC/SCP/68, para 5 (UN HCR ‘Safe Cou ntry Concept’).

7 U NHCR ‘Safe Countr y Concept’ (n 6) para 3.

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REFUGE E WOMEN: FOREVER V ULNERA BLE? 229

physical secur ity? In seeking to answer these questions, we will

do so through the lens of intimate partner v iolence (IPV)8 so as to

highlight this more invisible form of gender-based violence.9

First, we examine whether IPV can be regarded as a ground

for asylum in internationa l human rights and refugee laws, as

well as in South African domestic law. Second, we emphasise that

refugee women in South A frica who are victims of IPV should be

aorded protection by the same set of human r ights that would

be applicable to South Af rican survivors of IPV, including the

right to physical security, access to justice and equality. Third,

we outline the specic diculties faced by refugee women in

South Afr ica who are victims of IPV, and note that IPV somet imes

continues from the country of origin or begins after arrival in

the host state. Fourth, we argue that the reparations framework,

which is part of transitional justice, can repair systematic human

rights abuses. When used in post-conict societies and situations,

the reparations framework can oer female refugee victims of IPV

forms of redress that wi ll restore their dign ity and ensure their

rights to security and access to justice.10

We conclude by making recommendations for South Af rica

on how to change its response to female refugees eeing IPV,

how to create inclusive services for IPV sur vivors who are female

refugees living in South Africa, and how to full its international

and domestic legal obligations through a reparations framework.

8 T he Declarat ion on the Elim ination of Viole nce Agains t Women (DEVAW)

of 20 December 1993 A /RES/48/104 in its preamble re cognises v iolence against

women as ‘an obst acle to the ach ievement of equa lity’, while art 1 de nes

violence against women a s ‘any act of gend er-base d violence tha t results i n, or

is likely t o result in physical, sexual or p sychologica l harm’. In 200 4 the UN

General A ssembly ad dressed d omestic v iolence and issued Resolution 58/147,

entitled ‘E limi nation of dome stic violence against women’ A/R ES/58/147. It

denes dome stic violence as ‘violence th at occur s withi n the private s phere,

general ly between individuals who a re related through bloo d or intimacy.’ The

Assembly no ted in sect ion 1(b) that it ‘is one of the most comm on and least

visible for ms of violence a gain st women and th at its consequences aect m any

areas of the l ives of vict ims.’ Of im portanc e to this pap er is the content ion in

section 1(d) that ‘d omestic violence is of public con cern and req uires St ates to

take serious action to pr otect vict ims and prevent domestic violence.’

9 K Wachter e t al ‘Drivers of inti mate par tner viole nce agai nst women in

three ref ugee camps’ (2018) 24(3) Violence Again st Women 286 at 286 –7.

10 R M anjoo ‘Int roduction: Re ections on t he concept and im plementation

of trans formative repara tions’ (2017) 21 International Journal of Human Rights 1193.

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