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This book explores the ambit of the notion of persecution in international law and its relevance in the current geopolitical context, more specifically for refugee women. The work analyses different models for interpreting the notion of persecution in international refugee law through a comparative lens. In particular, a feminist approach to refugee law is adopted to determine to what extent the notion of persecution can apply to gender-related forms of violence and what the challenges are in doing so. It proposes an interpretive model that would encourage decision makers to interpret the notion of persecution in a manner that is sufficiently protective and relevant to the profiles of refugees in the 21st century, most particularly to refugee women. The book will be of interest to academics and students in the field of public international law, international human rights law, international humanitarian law, immigration law, European law and refugee law, as well as those working in the areas of international relations.

Given the rising proportion of refugee women in the world and the conceptual difficulties in addressing their claims, the present chapter will engage in a theoretical analysis of the nature of gender-based violence and demonstrate that the basic human rights narrative is not suitable to assess the claims of refugee women, if applied in a rigid manner. In order to concretely support this argument, this chapter will then engage in a case-study of decisions involving forms of persecution typically faced by women. In particular, some of the claims that have been the most regularly lodged in jurisdictions and that have raised contention, will be considered, namely Female Genital Mutilation (FGM), domestic violence and trafficking in persons (hereunder trafficking). It be will demonstrated that basic human rights can be referred to as an interpretive guidance but it should always be complemented by a more circumstantial approach in order to ensure that the needs and priorities of women are well addressed.

Chapter 3 will explore alternative models to the basic human rights framework for interpreting persecution. It will first analyse models that have built upon but expanded the basic human rights paradigm, such as the definition developed by the Qualification Directive (QD) of the European Union and the normative framework proposed by Storey. However, it will be contended that none of these models are adequate in order to meet the needs of refugees in the 21st century. This chapter will then consider alternative proposals that are based on a more subjective analysis or on the concept of discrimination. These proposals however have not been largely endorsed by either the jurisprudence or the literature. Finally, the interpretive method developed by UNHCR, factoring in basic human rights and a more circumstantial approach, will be evaluated. It will be argued that the UNHCR model appears relevant to assess the level of harm that individuals are likely to face upon return to their country in a more accurate and transparent manner as it sufficiently takes into consideration the various circumstances and complexities of refugees’ profiles.

Chapter 1 demonstrated that the notion of persecution can adapt to new forms of harm as they arise in the 21st century. However, the extent to which this is the case is unclear. To solve these issues, scholars have proposed models for interpreting the notion of persecution. These models will be analysed in Chapter 2. In particular, the dominant interpretive model calls for an approach specifically based on basic human rights, arguing that this would foster more consistency amongst and within jurisdictions and allow for an evolutionary approach that is more suitable to the current needs and priorities of refugees, including women refugees. The potentials and limitations of this model will be evaluated. It will be argued that a basic human rights framework does not solve the problem of inconsistent approaches and creates the risk of encouraging rather restrictive interpretations of the notion of persecution, depending on the different parameters relied upon by decision makers.

Chapter 1 will analyse the historical context in which the 1951 Convention was drafted and how the notion of persecution emerged as a pivotal element in international refugee law. The changing geopolitical situation and the challenges that arise from it will then be fleshed out in order to better evaluate the scope of the notion of persecution and its relevance in the 21st century. In particular, this chapter will point to the phenomenon of feminisation of displacements, which was not anticipated by the drafters of the Convention in 1951. However, it will be argued that the plenipotentiaries wanted to make the notion of persecution a flexible concept that could adapt to the evolving profiles and experiences of displaced people through times. Additionally, it will be contended that some level of consistency is needed in the interpretation of the definition of a refugee to ensure an effective implementation of the international asylum system in the 21st century in a manner that better suits the needs of refugees and provides adequate protection for women forced to leave their country.

This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. The book analyses the historical background of the 1951 Convention and the context of the emergence of persecution as a pivotal concept in international refugee law. It demonstrates that persecution has been perceived to be a politically biased notion and that, when the definition was developed, the plenipotentiaries had a particular meaning in mind, adapted to the necessities and circumstances of their time. The book engages in an in-depth analysis of the traditional interpretive frameworks that have been proposed by scholars in order to overcome the challenges in applying the notion of persecution to new refugees. It explores more recent interpretive schemes that have been developed in the past years and that propose to enlarge the understanding of persecution beyond a basic human rights narrative.

This conclusion presents some closing thoughts on the concepts covered in the preceding chapters of this book. The book demonstrated that the notion of persecution progressively emerged in international refugee law after World War I to finally become the cornerstone of the definition of a refugee in 1951. It attempts to assess whether these protection gaps could be overcome through an evolutionary understanding of the notion of persecution or whether a shift of paradigm is needed to adapt the current refugee law regime to the protection needs of forcibly displaced people on the international scene and in particular to the needs of refugee women. The book relies on basic human rights norms to define what persecution is. It provides objective benchmarks of interpretation, also fosters a compartmentalised assessment of persecution, at times obviating certain aspects of the harms experienced by refugees.