CEDAW/C/55/D/35/2011
Convention. A gender-sensitive approach should be applied at every stage of the
asylum process under the latter instrument, which defines a refugee in article 1A(2)
as someone who has a well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political opinion. A
State party must interpret that definition in line with the obligations of
non-discrimination against women and substantive equality under article 2 (a) of the
Convention on the Elimination of All Forms of Discrimination against Women.
States parties are required also to ensure that each of five grounds enumerated in the
Refugee Convention is given a gender-sensitive interpretation. Persecution, while
not defined in the Refugee Convention, is widely understood to refer to threats to
one’s life or freedom, serious human rights violations or other serious harm. 2 Such
other serious human rights violations and harm would include those proscribed by
the Convention on the Elimination of All Forms of Discrimination against Women,
including rape as a serious violation of women’s human rights.
10. Under article 2 (c) of the Convention on the Elimination of All Forms of
Discrimination against Women, a State party must establish legal protection of the
rights of women on an equal basis with men and ensure through competent national
tribunals and other public institutions the effective protection of women against any
act of discrimination. This means, in the present case, that the author’s request for
asylum on grounds of sexual violence and political persecution should be
determined by an asylum system that has a thorough understanding of the particular
forms of persecution and human rights abuses that women and girls experience
because of their sex or gender.
11. With regard to the author’s political persecution, the State party submitted
“that the Refugee Appeals Board accepted the author’s evidence, including her
involvement in FLN activities, but found that the author’s political activities were of
limited nature” (para. 4.3) and “assessed that the author would not be at risk of
assault in case of return to Burundi” (para. 6.5). Based on such formal
categorization of the author’s political activities as of limited nature, the State party
ignored that fact that women are, in general, underrepresented at the high level of
political parties and that women’s political activity may not always look like male
political activity or may not be equally valued in the male-dominated political
environment. The State party’s authorities also failed to assess in a non-discriminatory
manner the risk of the author’s future political persecution or gender-related
persecution or whether the author could benefit from State protection, taking into
account all relevant facts relating to her claim of political persecution and sexual
violence, i.e. that members of FLN, including the author, were attacked, killed or
imprisoned by government forces; that her house was the subject of a grenade attack;
that the police were asking for the author and her husband (para. 2.6); that her
former neighbours who were members of the Conseil national pour la défense de la
démocratie had promised to kill her if she returned home; that she was raped by
three men armed with knives and that out of fear she did not report the events to the
police “given that she was trying to hide from them” (para. 2.4); and that she feared
that she might be subjected to rape and other bodily harm upon being returned to
Burundi.
__________________
2
18/20
See the Guidelines on International Protection: gender-related persecution within the context of
article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees
(HCR/GIP/02/01).
13-43086
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