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A Feminist Legal Analysis of the Interface Between Refugee Law and the Mandates of Truth and Reconciliation Commissions

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Part of the Springer Series in Transitional Justice book series (SSTJ,volume 4)

Abstract

Forced displacement both within and across borders is a common consequence of conflict. However, only a few Truth and Reconciliation Commissions (TRCs) have had a specific mandate to investigate forced displacement. Accordingly, the examination of forced displacement by TRCs is a new issue in transitional justice scholarship. Predominant within this burgeoning literature are feminist examinations of the ways in which TRCs represent women’s experiences of forced displacement. One of the claims put forward is that TRCs provide a truncated and stereotyped picture of the causes and consequences of women’s displacement. What is, however, missing in this literature is an assessment of how TRC mandates and their interpretation have given rise to this gender blindness and gender stereotyping. Therefore, this chapter investigates the unexplored issue of how the framing and interpretation of TRC mandates impact upon representations of women’s experiences of forced displacement. It will do this by comparing the ways in which gender has been considered in the Liberian and Sierra Leonean TRCs with the ways in which it has been addressed in refugee law. The purpose of the comparison is to highlight the potential for a dialogue between these two fields and that such cross-pollination can provide pathways for addressing the gender bias of both refugee law and TRCs.

Keywords

  • Refugee law
  • Forced displacement
  • Feminist theory
  • Truth and reconciliation commissions
  • TRC mandates
  • Transitional justice

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Notes

  1. 1.

    Lucy Hovil, ‘Gender, Transitional Justice and Displacement: Challenges in Africa’s Great Lakes Region,’ in Case Studies on Transitional Justice and Displacement (Brookings-LSE Project on Internal Displacement, 2012), accessed February 8, 2013, http://ictj.org/sites/default/files/ICTJ-Brookings-Displacement-Gender-Great-Lakes-CaseStudy-2012-English.pdf.

  2. 2.

    ‘Progress of the World’s Women: In Pursuit of Justice,’ UN Women, accessed February 8, 2013, http://progress.unwomen.org/pdfs/EN-Report-Progress.pdf.

  3. 3.

    In law, a person cannot be a refugee unless they are outside their country of origin. For example, Article 1A(2) of the 1951 UN Convention Relating to the Status of Refugees (Refugee Convention) and Articles 1 and 2 of the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Refugee Convention) provide that a refugee must be outside the country of his (or her) nationality or not having a nationality be outside of his or her former habitual residence. Not everyone that who is displaced across a national border will qualify as a refugee. Pursuant to Article 1A(2) of the Refugee Convention a refugee is a person who has a well-founded fear of persecution for reasons on race, nationality, religion, membership of a particular social group or political opinion. The OAU Refugee Convention adopts this definition but also further includes anyone who has fled external aggression, occupation, foreign domination or events seriously disturbing the public order.

  4. 4.

    There is no legal definition of an IDP but the United Nations Guiding Principles on Internal Displacement (E/CN.4/1998/53/Add.2) can be of some assistance in identifying this category of persons as it is understood at the international level.

  5. 5.

    Megan Bradley, ‘Truth-Telling and Displacement: Patterns and Prospects,’ in Transitional Justice and Displacement, ed. Roger Duthie (New York: Social Science Research Council, 2012), 189–232; Roger Duthie, ‘Transitional Justice and Displacement,’ International Journal of Transitional Justice 5(2) (2011): 241–261; Roger Duthie, ‘Incorporating Transitional Justice into the Response to Displacement’ in Case Studies on Transitional Justice and Displacement (Brookings-LSE Project on Internal Displacement, 2012), accessed May 2, 2013, http://www.ssrc.org/workspace/images/crm/new_publication_3/%7Bcf869aa8-b9d1-e111-bb1a-001cc477ec84%7D.pdf.

  6. 6.

    Megan Bradley, ‘Truth-Telling and Displacement: Patterns and Prospects,’ above footnote 5.

  7. 7.

    Susan Harris Rimmer, ‘Reconceiving Refugees and Internally Displaced Persons as Transitional Justice Actors,’ New Issues in Refugee Research United Nations High Commissioner for Refugees Research Paper Number 187, 2010.

  8. 8.

    See Susan Harris Rimmer, ‘Reconceiving Refugees and Internally Displaced Persons as Transitional Justice Actors,’ above footnote 7; Susan Harris Rimmer, ‘Women Cut in Half: Refugee Women and the Commission for Reception, Truth-Seeking and Reconciliation in Timor-Leste,’ Refugee Survey Quarterly 29(2) (2010): 85–103; Lucy Hovil, ‘The Nexus Between Displacement and Transitional Justice: A Gender-Justice Dimension,’ Transitional Justice and Displacement ed. Roger Duthie (New York: Social Science Research Council, 2012), 329–359; Donny Meertens, ‘Forced Displacement and Gender Justice in Columbia: Between Disproportional Effect of Violence and Historical Injustice,’ Case Studies on Transitional Justice and Displacement Brookings-LSE Project on Internal Displacement, accessed February 8, 2013, http://ictj.org/sites/default/files/ICTJ-Brookings-Displacement-Gender-Colombia-CaseStudy-2012-English.pdf.

  9. 9.

    Susan Harris Rimmer, ‘Women Cut in Half: Refugee Women and the Commission for Reception, Truth-Seeking and Reconciliation in Timor-Leste,’ above footnote 8.

  10. 10.

    Susan Harris Rimmer, ‘Women Cut in Half: Refugee Women and the Commission for Reception, Truth-Seeking and Reconciliation in Timor-Leste,’ above, n 8; Donny Meertens, ‘Forced Displacement and Gender Justice in Columbia: Between Disproportional Effect of Violence and Historical Injustice,’ above footnote 8.

  11. 11.

    Susan Harris Rimmer, ‘Reconceiving Refugees and Internally Displaced Persons as Transitional Justice Actors,’ above footnote 7, 9.

  12. 12.

    Lucy Hovil, ‘The Nexus Between Displacement and Transitional Justice: A Gender-Justice Dimension,’ above footnote 8.

  13. 13.

    UN Security Council, Security Council Resolution 1325 (2000) [on women peace and security], 31 October 2000, S/RES/1325 (2000).

  14. 14.

    Report of the Secretary General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, [25].

  15. 15.

    The refugee definition is forward looking—a person must establish a ‘well-founded fear of persecution’ as opposed to having actually experienced such persecution. Nevertheless, many asylum seekers make their claim after having fled their country of origin as a result of the persecution they suffered or feared. Therefore, decision makers often hear evidence of the persecution suffered by asylum seekers in their country of origin that prompted them to seek sanctuary.

  16. 16.

    The Liberia Diaspora TRC Report is separate from the Final Report of the Truth and Reconciliation Commission of Liberia. It was conducted by a non-government organisation called Advocates for Human Rights at the request of the Truth and Reconciliation Commission of Liberia. It collected statements from Liberians living in the UK, USA and Ghana. The Liberia Diaspora TRC Report was presented to the Truth and Reconciliation Commission of Liberia.

  17. 17.

    The High Court of Australia and the Supreme Court of the United Kingdom were among the first ultimate appellate courts to acknowledge that women could constitute a particular social group and that actions by a non-state actor can amount to persecution if the state is unable or unwilling to provide protection: Islam v Secretary of State for the Home Department; R v Immigration Tribunal ex parte Shah (1999) 2 AC 629; Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1.

  18. 18.

    Susan Harris Rimmer, ‘Reconceiving Refugees and Internally Displaced Persons as Transitional Justice Actors,’ above footnote 7.

  19. 19.

    ‘Progress of the World’s Women: In Pursuit of Justice,’ UN Women, above footnote 2.

  20. 20.

    Lucy Hovil, ‘The Nexus Between Displacement and Transitional Justice: A Gender-Justice Dimension,’ above footnote 8.

  21. 21.

    ‘Progress of the World’s Women: In Pursuit of Justice’, UN Women, above footnote 2.

  22. 22.

    Ibid.

  23. 23.

    ‘Women: Particular Challenges and Risks,’ United Nations High Commissioner for Refugees, accessed April 23, 2013, http://www.unhcr.org/pages/49c3646c1d9.html.

  24. 24.

    The drafters of the Refugee Convention only discussed the possibility of persecution on the account of gender once but the drafters dismissed this issue because they were not convinced that a person could be persecuted on the grounds of gender and, in any event, it was an issue that was best left to domestic law: Alice Edwards, ‘Transitioning Gender: Feminist Engagement with International Refugee Law and Policy,’ Refugee Survey Quarterly 29(2) (2010): 21–45.

  25. 25.

    Ibid.

  26. 26.

    Chan v Minister for Immigration and Ethnic Affairs (1989)169 CLR 379; Article 9: Council of the European Union, Directive 2011/95/EU of the European Parliament and of the Council 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), 20 December 2011, L337/9; United Nations High Commissioner for Refugees, ‘Agents of Persecution UNHCR Position,’ March, 14, 1995.

  27. 27.

    Alice Edwards, ‘Transitioning Gender: Feminist Engagement with International Refugee Law and Policy,’ above footnote 24.

  28. 28.

    See Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation, Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (Cambridge: Cambridge University Press, 2007).

  29. 29.

    Reference V95/03256, RRT, 9 October 1995.

  30. 30.

    Alice Edwards, ‘Transitioning Gender: Feminist Engagement with International Refugee Law and Policy,’ above footnote 24.

  31. 31.

    Ibid.

  32. 32.

    Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal ex parte Shah (1999) 2 AC 629.

  33. 33.

    Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1.

  34. 34.

    UNHCR, Guidelines on International Protection No. 1: 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, 7 May 2002, HCR/GIP/02/01.

  35. 35.

    Heaven Crawley and Trine Lester, ‘Comparative Analysis of Gender-Related Persecution in National Asylum Legislation and Practice in Europe,’ United Nations High Commissioner for Refugees, Geneva, UN Doc EPAU/2004/05 May 2004. Cf. Article 6 of the European Union, Council Directive 2004/83/EC on the minimum standards for the qualification and the status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, 29 April 2004 (Qualification Directive) provides that ‘persecution’ includes acts perpetrated by non-state actors if the state is unable or unwilling to provide protection against that harm. Further research is needed to determine whether, post the introduction of the Qualification Directive, more European Union member states recognise persecution by non-state actors.

  36. 36.

    Susan Harris Rimmer, ‘Women Cut in Half: Refugee Women and the Commission for Reception, Truth-Seeking and Reconciliation in Timor-Leste,’ above footnote 8.

  37. 37.

    ‘Progress of the World’s Women: In Pursuit of Justice’, UN Women, above footnote 2.

  38. 38.

    Alice Edwards, ‘Transitioning Gender: Feminist Engagement with International Refugee Law and Policy,’ above footnote 24, 38.

  39. 39.

    Miriam Ticktin, ‘Policing and Humanitarianism in France: Immigration and the Turn to Law as State of Exception,’ Interventions: The International Journal of Postcolonial Studies 7(3) (2005): 346–368.

  40. 40.

    Susan Harris Rimmer, ‘Reconceiving Refugees and Internally Displaced Persons as Transitional Justice Actors,’ above footnote 7, 9.

  41. 41.

    Alice Edwards, ‘Transitioning Gender: Feminist Engagement with International Refugee Law and Policy,’ above footnote 24.

  42. 42.

    Lucy Hovil, ‘The Nexus Between Displacement and Transitional Justice: A Gender-Justice Dimension,’ above footnote 8; Donny Meertens, ‘Forced Displacement and Gender Justice in Columbia: Between Disproportional Effect of Violence and Historical Injustice,’ above footnote 8.

  43. 43.

    Heaven Crawley, ‘Gender, Persecution and the Concept of Politics in the Asylum Determination Process,’ Forced Migration Review 9(2000): 17–20.

  44. 44.

    Ibid.

  45. 45.

    See, for example, Secretary of State for the Home Department (Respondent) v. K (FC) (Appellant); Fornah (FC) (Appellant) v. Secretary of State for the Home Department (Respondent) (2006) UKHL 46.

  46. 46.

    Ibid.

  47. 47.

    However, note A House with Two Rooms: Final Report of the Truth and Reconciliation Commission of Liberia Diaspora Project, 245–246 which outlines women’s role in saving civilians.

  48. 48.

    Hilary Charlesworth, ‘Feminist Methods in International Law,’ The American Journal of International Law, 93(2)(1999): 379–394.

  49. 49.

    Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law (Manchester: Manchester University Press, 2000).

  50. 50.

    Alice Edwards, Violence Against Women Under International Human Rights Law (Cambridge: Cambridge University Press, 2011).

  51. 51.

    Ibid, 336.

  52. 52.

    Christine Lambert, ‘Partial Sites and Partial Sightings: Women and the UN Human Rights Treaty System,’ in Global Issues, Women and Justice, edited by Christine Lambert and Sharon Pickering (Sydney: Institute of Criminology, 2004).

  53. 53.

    Article XXVI(2) Lomé Peace Agreement.

  54. 54.

    Article XXVI(6)(1) Lomé Peace Agreement.

  55. 55.

    Article XXVI(6)(1) Lomé Peace Agreement.

  56. 56.

    Sierra Leonean TRC 2004 Volume One, Chapter One, [65].

  57. 57.

    Ibid, [66].

  58. 58.

    Article XXVI(6)(2)(a) Lomé Peace Agreement.

  59. 59.

    Sierra Leonean TRC 2004 Volume Three B, Chapter Three, [101].

  60. 60.

    Ibid, [101].

  61. 61.

    Ibid, [77]–[104].

  62. 62.

    Ibid, [103].

  63. 63.

    ‘Intersectionality’ refers to the ways in which gender interacts with other attributes such as nationality, ethnicity, religion and socio-economic position: K. Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color’ (1991) 43(6) Stanford Law Review 1241–1299. Many feminist theories such as critical race feminism and third world feminism assert that gender cannot be examined in isolation, necessitating an intersectional approach.

  64. 64.

    Article 14, Section 4(e) The Act to Establish the Truth and Reconciliation Committee (2005).

  65. 65.

    A House with Two Rooms: Final Report of the Truth and Reconciliation Commission of Liberia Diaspora Project, 228–234.

  66. 66.

    Ibid, 234–242.

  67. 67.

    Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal ex parte Shah (1999) 2 AC 629.

  68. 68.

    Ibid.

  69. 69.

    Secretary of State for the Home Department (Respondent) v. K (FC) (Appellant); Fornah (FC) (Appellant) v. Secretary of State for the Home Department (Respondent) (2006) UKHL 46.

  70. 70.

    Ibid, [5].

  71. 71.

    Ibid, [31].

  72. 72.

    Ibid, [54]. Lord Hope did however say that, in this case, the particular social group could be defined with further clarity as ‘uninitiated females in Sierra Leonean’, [56].

  73. 73.

    Ibid, [114].

  74. 74.

    SK (FGMEthnic Groups) Liberia v. Secretary of State for the Home Department, CG (2007) UKIAT 00001.

  75. 75.

    Ibid, [53].

  76. 76.

    Article XXVI(2) Lomé Peace Agreement.

  77. 77.

    Sierra Leonean TRC Report 2004 Volume One, Chapter One, [52].

  78. 78.

    Sierra Leonean TRC Report 2004 Volume Three B, Chapter Three, [11].

  79. 79.

    The right to education is recognised in Article 13 of the International Covenant on Economic, Social and Cultural Rights. Article 2(2) of the Covenant provides that economic, social and cultural rights must be exercised without discrimination on the ground of sex (and other statuses).

  80. 80.

    The right to be free from torture is outlined in Article 7 of the International Covenant on Civil and Political Rights.

  81. 81.

    The right to an adequate standard of living is recognised in Article 11 of the International Covenant on Economic, Social and Cultural Rights.

  82. 82.

    Sierra Leonean TRC Report 2004 Volume Three B, Chapter Three, [33].

  83. 83.

    Ibid, [41].

  84. 84.

    Ibid, [42].

  85. 85.

    Ibid, [95].

  86. 86.

    Ibid, [235].

  87. 87.

    Sierra Leonean TRC Report 2004 Volume Three A, Chapter Four, [102].

  88. 88.

    Ibid, [102].

  89. 89.

    A House with Two Rooms: Final Report of the Truth and Reconciliation Commission of Liberia Diaspora Project, 234–242.

  90. 90.

    Ibid, 227.

  91. 91.

    Ibid, 227.

  92. 92.

    Article IV, Section 4(a) Act to Establish the Truth and Reconciliation Commission 2005.

  93. 93.

    Truth and Reconciliation Commission of Liberia Final Report: Volume One, 23.

  94. 94.

    Ibid, 23.

  95. 95.

    Ibid, 23.

  96. 96.

    Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation, above footnote 28.

  97. 97.

    Chan v Minister for Immigration and Ethnic Affairs (1989)169 CLR 379; Article 9: Council of the European Union, Directive 2011/95/EU of the European Parliament and of the Council 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), 20 December 2011, L337/9; United Nations High Commissioner for Refugees, ‘Agents of Persecution UNHCR Position,’ March, 14, 1995.

  98. 98.

    Maksimovic v Secretary of State for the Home Department (2004) EWHC 1026; Shirazi-Parsa v INS, 14 F. 3d 1424, 1428 (9th Cir.1994).

  99. 99.

    Alice Edwards, ‘Transitioning Gender: Feminist Engagement with International Refugee Law and Policy,’ above footnote 24.

  100. 100.

    See Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation, above footnote 28.

  101. 101.

    Reference V95/03256, RRT, 9 October 1995.

  102. 102.

    (2002) RRTA 994 (24 October 2002).

  103. 103.

    (2008) UKIAT 00090.

  104. 104.

    FB (Lone WomenPSGInternal RelocationAA—(Uganda) considered) Sierra Leonean (2008) UKIAT 00090, [71].

  105. 105.

    Ibid, [83].

  106. 106.

    International Labour Organisation, Sierra Leonean Decent Work Country Programme (2010–2012), October 2010, available at: http://www.ilo.org/public/english/bureau/program/dwcp/download/sierraleone.pdf (accessed 31 December 2013), at 2.4.

  107. 107.

    Susan Harris Rimmer, ‘Women Cut in Half: Refugee Women and the Commission for Reception, Truth-Seeking and Reconciliation in Timor-Leste,’ above footnote 8; ‘Progress of the World’s Women: In Pursuit of Justice’, UN Women, above footnote 2.

  108. 108.

    Sierra Leonean TRC Report 2004 Volume One, Chapter One, [36].

  109. 109.

    Ibid, [35].

  110. 110.

    Ibid, [38].

  111. 111.

    Catherine MacKinnon, ‘Rape, Genocide, and Women’s Human Rights,’ Harvard Women’s Law Journal, 17(5)(1994): 5–16, 5.

  112. 112.

    Sierra Leonean TRC Report 2004 Volume Three B, Chapter Three, [388]–[413].

  113. 113.

    Ibid, [388].

  114. 114.

    Article 14, Section 4(e) The Act to Establish the Truth and Reconciliation Committee (2005).

  115. 115.

    Liberia Diaspora TRC Report 2009, 12.

  116. 116.

    Ibid, 245.

  117. 117.

    Ibid, 245.

  118. 118.

    Heaven Crawley, ‘Gender, Persecution and the Concept of Politics in the Asylum Determination Process,’ above footnote 43; Alice Edwards, ‘Transitioning Gender: Feminist Engagement with International Refugee Law and Policy,’ above footnote 24.

  119. 119.

    Miriam Ticktin, ‘Policing and Humanitarianism in France: Immigration and the Turn to Law as State of Exception,’ above footnote 39.

  120. 120.

    0803919 (2008) RRTA 333 (2 September 2008).

  121. 121.

    Ibid, [62].

  122. 122.

    0803919 (2008) RRTA 333 (2 September 2008), [82]–[83].

  123. 123.

    Miriam Ticktin, ‘Policing and Humanitarianism in France: Immigration and the Turn to Law as State of Exception,’ above footnote 39.

  124. 124.

    (2002) UKIAT 03905.

  125. 125.

    Ibid, [3].

  126. 126.

    Ibid, [6].

  127. 127.

    Ibid, [11].

  128. 128.

    Sierra Leonean TRC Report 2004 Volume Three A, Chapter Three, [443].

  129. 129.

    Ibid, [171].

  130. 130.

    Ibid, [172]–[176].

  131. 131.

    Ibid, [35]–[42] and [61]–[66].

  132. 132.

    Ibid, [223].

  133. 133.

    State parties undertake ‘to establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination’.

  134. 134.

    ‘States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; (b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases’.

  135. 135.

    ‘States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education …’.

  136. 136.

    ‘States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights …’.

  137. 137.

    ‘States Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of the present Convention to women in rural areas …’.

  138. 138.

    ‘States Parties shall accord to women equality with men before the law …’.

  139. 139.

    A House with Two Rooms: Final Report of the Truth and Reconciliation Commission of Liberia Diaspora Project, 230, 231, 232.

  140. 140.

    Ibid, 301–375.

  141. 141.

    Crawley, above footnote 43.

  142. 142.

    Ibid, 19.

  143. 143.

    (2008) UKIAT 00090.

  144. 144.

    Ibid, [73].

  145. 145.

    Ibid, [73].

  146. 146.

    Ibid, [72].

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Ogg, K., Szablewska, N. (2015). A Feminist Legal Analysis of the Interface Between Refugee Law and the Mandates of Truth and Reconciliation Commissions. In: Szablewska, N., Bachmann, SD. (eds) Current Issues in Transitional Justice. Springer Series in Transitional Justice, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-319-09390-1_9

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