14 Protection for Women and Children under Refugee Law

Rohini Sen

epgp books

 

 

1. Learning Outcomes

  • To give students an understanding of the benefits accorded to women and children under Refugee Laws;
  • By the end of the chapter, students will have an understanding of the position of women and children in International Refugee Laws.

2. Introduction

Refugees are vulnerable to threat at all points of time. This threat may be external or from within their ranks. For women, in particular, such a threat is amplified, especially in places where gender inequality is the norm. When societies are displaced, traditional or formal justice systems breakdown and women have no support system. They are prone to a multitude of risks, particularly discrimination and sexual and gender-based violence. Children too, are susceptible to a variety of dangers. They are highly vulnerable to diseases, malnutrition and physical injuries. They are dependant on the support of adults for their physical survival and their psychological and social well-being. Most importantly, they are in need of nurturing and guidance to help them formulate an idea of right and wrong. Children are also at risk of sexual abuse, trafficking, drug abuse, abduction and various forms of exploitation sexual and otherwise. These factors underscore the need for special protection measures for women and children when their refugees status make them extremely vulnerable.

3. UNHCR policy for Refugee Women

The United Nations High Commissioner for Refugees

4. Guidelines on the protection of Women

The UNHCR, at Geneva in July 1991, prepared a set of guidelines for the protection of refugee women. These guidelines are based on the following international instruments – the 1951 Convention and its 1967 Protocol; the Universal Declaration of Human Rights; the 1949 Geneva Conventions and the two Additional Protocols of 1977; the 1966 Human Rights Covenants; the Convention on the Elimination of All Forms of Discrimination Against Women; the Declaration on the Protection of Women and Children in Emergency and Armed Conflict; the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages; the Convention on the Nationality of Married Women; and the Convention on the Rights of the Child. These international instruments provide a legal framework of international human rights standards, to be kept in mind while carrying out assistance and protection activities related to refugee women. Along with these, the national laws at the place of refuge also play a vital role in ensuring the safety of women. These provide an additional legal framework for the protection of women from mistreatment. Moreover, all countries, which are signatories to the 1951 Convention or the 1967 Protocol must cooperate with the UNHCR in the discharge of its functions. This facilitates better working conditions for the UNHCR.

 

The guidelines note that there is an intrinsic relationship between assistance and protection of refugees, and that this relationship is highlighted in the case of women. In the absence of basic necessities of life like food, clothes and shelter, refugee women become more vulnerable to sexual abuse in order to obtain these resources. Hence, to counteract the possibility of such abuse, refugees must be well provided for.

The guidelines also emphasise the importance of participation of women in the expression of community needs and the planning process for the delivery of assistance. This will help them overcome a feeling of helplessness and isolation. The UNHCR points out that before being displaced, women had opportunities to express their concerns and needs through their husbands or through traditional support systems. Hence, they advise organisations working with refugees to take up special initiatives to provide women with an outlet to express themselves. However, they also note that in many cultures women have a limited role in the social sphere, and tampering with such cultural norms might unsettle the camp.

It is also important for the governments and other refugee assistance organisations to understand that the UNHCR has responsibilities regarding the protection of women refugees, and that it has to conform to the international instruments which explicitly prohibit inequality of assistance between men and women. This means that any objections against this equal treatment of women by governments and other organisations must be set aside. There needs to be a consensus amongst all parties involved in the efforts to be effective.

The guidelines also advise the planning process to include information like the demographic composition of the refugee population. It says that each category of refugees, be it men, women or children, have different needs and different protection requirements. Plans for helping the refugees must juxtapose this information with other factors like available human, financial and material resources.

A division is made in the timeline of assistance refugees need. The guidelines make a distinction between assistance provided as an emergency measure and durable solutions later for the long-term benefit of the refugee camps. They emphasise the need for early assessment of the needs, so that protection measures can be undertaken earlier. More importantly, decisions related to fundamental issues like food distribution mechanisms and the camp layout need to be made with the security of women in mind. Any error in judgement of such decisions can have long-term negative effects on the wellbeing of refugee women. Early and proper assessment of the protection needs helps make better decisions which avoid future problems. The guidelines also suggest that the problems faced by refugees as a whole must be assessed first, and then problems faced only by women refugees should be addressed. The following image is an excerpt from the 1991 UNHCR Guidelines which detail the different issues that need to be addressed during assessment of refugee situations.

Knowledge assimilation regarding the refugees is vital. It helps in the assessment of the situation. The UNHCR guidelines recommend assistance groups to acquire the following information about the refugees, pertaining to the following categories:

  • Circumstances of the movement – The refugees must be asked the reason for their displacement and whether any further movement is likely. It must be noted if these reasons indicate any particular vulnerability of a group among the refugees. Next, they must be asked the mode of transport used to cross the border. Any ‘protection problems’ faced by refugee women during this transport, like sexual harassment, physical abuse, rape, abduction or others, must be noted. The people responsible for perpetuating these offences must be identified. This will give an understanding of whether such problems are likely to continue or not. The presence or absence of protection officers on the border must also be noted. Details like who deployed them, and whether there were any women amongst them, are also important. Other relevant information includes whether the refugees move as individuals, families or larger groups, and if single women are incorporated into families or other groups. The expected duration of the displacement (long or short term) must also be enquired. The presence or absence of resources with the refugees, and women’s ability to access these resources must also be noted. Assistance groups must also ask if the refugees, especially women, suffered any causalities during the movement.
  • Characteristics of the refugee population – Next, assistance groups must ask the refugees’ ethnic, cultural and linguistic backgrounds. Any major traditions, social organisation and lifestyles regarding women must be noted. A note of the percentages of men and women and age and gender distribution of the population must be made.
  • Local reception and attitudes – Local perception of the refugees and the local groups’ attitude towards them is extremely important. These local groups may be the indigenous people, the army, police force or the government of the country of asylum. Most importantly, any local customs related to women must be assessed, especially any with may affect the refugee women’s safety and legal status. An assessment of the impact the refugees have on the local resources must also be made. Any adverse effects, especially pertaining to women, must be assessed.
  • Physical organisation and location of camps – It is important to note the distance of the refugee camp from the nearest national border. This will help access any chance of an armed attack on the camp. The physical organisation of the camp itself must also be accessed. Are the camps organised in the same way as the refugees’ villages/towns were? Are ethnic/tribal groups housed separately or are they all mixed? All of this is important. Also, assistance groups must note if the camps are isolated from local communities or integrated with them. The ability to move freely in and out of the camp, especially in terms of restrictions placed only on women, must also be noted. The presence or absence of guards for the protection of the camp, and any training they might have received regarding their responsibilities towards women in particular must be noted. The quality of utilities like night time illumination, latrine and washing facilities etc. must be assessed. Any specific timings of access for women and children and their safety concerns, especially at night, must also be assessed.
  • Social organisation – Social structures within the refugee camps are important. Any leaders and their source of authority must be noted. Assistance groups must assess the participation of women in these structures, or the presence of different structures altogether for women. Any tensions or rivalries within the camps must be noted, especially if they are directed towards women or have any repercussions for women whatsoever.
  • Physical safety – The physical safety of refugees, especially women, is paramount in refugee camps. Assistance groups must find out if there are any incidents of physical attack, rape, abduction, threats, sexual harassment, obligation to grant “sexual favours” in return for documentation and/or assistance, forced prostitution, forced sale of children etc. within the camp. The frequency and scale of these incidents must be noted. It must also be assessed if there are a particular group of women who are more vulnerable than others. Questions like who reports these incidents, and to whom, must be asked. Any actions taken against the perpetrators of these attacks must also be assessed. Prostitution amongst the women, forced or otherwise, must be noted. Any alternatives must also be assessed.
  • Legal status and access to legal systems – It is important to note if women have the same legal status as men, in refugee situations. The method of determination of this status must be assessed. Any disparity between men and women in these methods must be noted. It must be noted if women can derive refugee status directly from their husbands. It must also be noted if any documents or cards issued are in the women’s names or just in their husbands’ names.

Apart from this assessment of the situation, the guidelines list possible programme interventions, like participation of refugee women, designing and implementation of assistance programmes to reduce dangers, identification of vulnerable groups, staffing to ensure greater protection, creating provisions for emergency relocation, law enforcement in countries of asylum, creation of internal legal codes within the camps and education and public information of the refugees amongst others.

5. Protection of Refugee Children

Children require special attention in all aspects of life. This need for attention and care is amplified in refugee situations. There is a high possibility that refugee children have been separated from their parents. This calls for state bodies and other organisations to step in and ensure that they are looked after in those situations. Refugee children are at a great risk of violence, exploitation, trafficking and forced labour. Human Rights treaties dictate that states are not only obliged to ensure that children enjoy all rights mentioned in those treaties, but they are also obliged to take measures to ensure the safety of children.

There are multiple international instruments which may be called upon to ensure the safety and protection of children. In fact, some are especially formulated with the safety of refugee children in mind. For instance, The International Covenant on Civil and Political Rights (ICCPR) ensures that every minor gets the protection he or she requires, without discrimination, from their family, society and the state. Discrimination between nationals and non-nationals is also prohibited.

The UN Convention on the Rights of the Child (CRC) lays down the civil, political, economic, social, health and cultural rights of children across the globe. Almost all nations in the world are signatories to the CRC. This ensures that children across the globe are entitled to basic human rights, like the right to health and safety, right to education and right to be registered at birth. The CRC can be called upon in refugee situations. Its emphasis on the “best interests” of the child ensures that all decisions made concerning refugee camps and refugee children must be made with the children’s best interests in mind. The Convention also ensures that any child, accompanied or unaccompanied, seeking refugee status is granted the same and is also given appropriate protection and humanitarian assistance. The CRC also imposes an obligation on the signatory states to co-operate with the UNHCR and other NGOs in an effort to protect child refugee and to trace the parents of any unaccompanied child. The CRC’s large number of signatories make this a very important instrument.

In May 2008, the UNHCR issued a set of guidelines to help in assessing the “best interests” of children in refugee situations. These guidelines ask for adequate child participation, involvement of people with different relevant expertise and systematic documentation of each step in the process. The guidelines also specify that any person involved in the best interests determination (BID) process should be trained on the guidelines and should not be facing a conflict of interest while making any decisions. They must also sign the UNHCR code of conduct and an undertaking of confidentiality.

Standard Operating Procedures (SOPs) should be in place in the process of determining the children’s best interests. These must be linked to other SOPs in place for the prevention of and response to sexual and gender-based abuse. Factors like individual registration, documentation, refugee status determination, tracing as well as monitoring, reporting and referral mechanisms must be taken care of on a priority basis. Only afterwards can the child’s best interest be determined in an effective way.

Next, a BID supervisor must be assigned to each child. The Head of Office of assistance staff is responsible for this. This BID supervisor should have child protection or child welfare expertise, or at the least, experience with community services or protection expertise. This supervisor is important as he facilitates the following tasks:

  • Sets up and monitors the BID process, which includes establishment of a BID panel and identification of sources of relevant information.
  • Alters and amends existing SOPs.
  • Ensures strict adherence to the code of conduct and confidentiality of the process.
  • Keeps local authorities informed periodically, if they aren’t directly involved.
  • Reviews the BID analysis and presents the recommendations to the BID panel.
  • Ensures that the BID process is properly documented.
  • Determines if cases for BID need to be prioritised.

Information collection is very important in the BID process. Hence, one or more child welfare officer(s) must be entrusted with this process. These may be a part of the UNHCR or members of partner agencies who have been delegated the task. It is important for reasons of independence that the child welfare officers are not selected from within the camp. However, this person must have an understanding of the community and be able to work closely with them. Efforts should be made to appoint female supervisors and officers for women and children.

Children’s participation in their BID processes shouldn’t be discouraged. Interviews with the child are integral to assessing his interests in such a scenario. The child must be supported to share his or her views. All interviews must be conducted in an informal manner so as to comfort the child. The child should have the right to refuse to answer any questions. The presence of a child’s guardian must be facilitated if it helps the child speak freely. However, the supervisors must be cautious of the guardian’s personal interests not overshadowing the child’s interests. The length of the interview should also be tailored to the child’s age. Two or three short interviews should be preferred over one long interview. Any preference for interviewers mentioned by the child must be considered.

Once a child’s best interest is determined, all efforts should be focused on carrying out any tasks required to fulfil this interest. Given that by procedure, children should have been a part of the whole process, the decision shouldn’t come as a surprise to the child. If the child feels that he or she has been heard, understood and respected, he is more likely to agree to the decision. However, if the child revolts and is hostile, honest and frank communication should be used to explain the practicality of the decision and other available options. Based on the circumstances, the implementation of the decision should be a sombre event or a celebrated one. Documentation of any decision and proof of acceptance of all parties, be it the camp authorities or foster parents, should be taken.

6. Conclusion

The UNHCR is faced with multiple challenges in modern-day conflicts, but none are as immense as the task of protecting women and children. These two groups account for almost 80% of the refugee population and are severely under greater threat than men. They are often targets of trafficking, sexual and physical abuse and various forms of exploitation. In such a vulnerable situation, the UNHCR and other international bodies have a great responsibility to implement international instruments for their protection and to assist them.

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Reference

  • Martin, Susan F. Refugee Women. Lexington Books, 2004.
  • Hathaway, James C. The Rights of Refugees under International Law. Cambridge University Press, 2005.
  • Hajdukowski-Ahmed, Maroussia. Not Born a Refugee Woman. Berghahn Books, 2013.
  • United Nations High Commissioner for Refugees. ‘Human Rights and Refugee Protection’. Office of the United Nations High Commissioner for Refugees. Web. 7 April 2015. http://www.refworld.org/pdfid/4669434c2.pdf
  • United Nations High Commissioner for Refugees. ‘Refugee Children: Guidelines on Protection and Care’. Office of the United Nations High Commissioner for Refugees. Web. 7 April 2015. http://www.unicef.org/violencestudy/pdf/refugee_children_guidelines_on_protection_and_c are.pdf
  • United Nations High Commissioner for Refugees. ‘Protection of Refugee Children in the Middle East and North Africa’. Office of the United Nations High Commissioner for Refugees. Web. 7 April 2015. https://data.unhcr.org/syrianrefugees/download.php?id=7325
  • United Nations High Commissioner for Refugees. ‘UNHCR Guidelines on Determining the Best Interests of the Child’. Office of the United Nations High Commissioner for Refugees. Web. 7 April 2015. http://www.unhcr.org/4566b16b2.html