September 16, 2019

Mainstreaming Refugee Women’s Rights Advocacy

By Tally Kritzman-Amir

Asylum-Seeking Women as Women: Mainstreaming Refugee Women’s Rights Advocacy

For many years I’ve been working with asylum seekers, men and women, in Israel. A few years ago a client – an African asylum-seeking woman in her early 40s – came to our office. Her set of issues, not necessarily unique to her, highlighted the need for us to work differently to better serve this population.

She had kids, and was a victim of domestic violence. She was wondering whether she should report her husband’s abuse, fearing one the one hand for her children’s and her own safety, and on the other for the economic stability of the family. She was afraid that if she was to report her husband, he would be detained and she would have to support her family alone on her low wages. When she did eventually report him, the spiral she feared ensued, but it was even worse than she expected.

He was indeed detained and indicted, but the worst came after he completed his sentence. He was moved to a “residency center,” similar to an immigration detention facility. In theory, he was free to go in and out, however, he had to spend the night there, away from his children. The facility was remote and inaccessible by public transportation. Then, he was approached with a suggestion. He would receive $3,500 if he agreed to go to a third country with which Israel has an agreement to take African asylum seekers off its hands. Once he agreed to the deal, his wife – our clinic’s client – was left to provide for her children on her own, without their father. Additionally, she had no contact with her husband and no access to the bank account in his name (though her salary had been deposited in it for years), and she was unable to divorce him.

Our legal clinic was unsure what we could do for her. We were used to fighting for people’s status, but clearly this client needed so much more than that. Being undocumented was only one dimension of her personal drama. What could we do to treat the issues this woman confronted more holistically?

The life experiences of this client were not new to me.  A few years ago, I took part in a research project documenting the difficult lives of asylum-seeking women in Israel. Through that research, we concluded that the vulnerability of this population justifies their treatment as a discrete group within the asylum-seeking community, but they are rarely treated as such. That research also showed that feminist organizations are not inclined to engage with asylum-seeking women, and that advocacy to promote women’s rights is conducted within the confines of the “ghetto” of NGOs devoted to migrants’ rights and clinics. This renders asylum-seeking women unable to enjoy the rights feminism has achieved within Israeli society.

The Coalition on Asylum-Seeking Women and Children in Israel

The limits of our abilities to help such a client, together with the findings of that research, resulted in the creation of the Coalition on Asylum-Seeking Women and Children in Israel, which has been operating since September 2016. It consists of 15 NGOs and legal clinics with the main goals of promoting migrants’ and refugees’ rights, women’s rights, and children’s rights. The coalition focuses on providing legal services in different fields of law, including outside of our comfort zone of immigration and refugee law, in the unknown territories of family law. We also deal with issues of the social and economic rights of asylum-seeking women and children. This includes the submission of an amicus brief on behalf of a dozen women and children’s rights NGOs, on the constitutionality of the deposit law, a law that came into force in May 2017. According to the deposit law, 20% of the (already low) salary of asylum seekers will be transferred to a deposit made available to the asylum seeker when she leaves Israel. This economic measure had a dramatic effect on already-vulnerable women and children. Finally, the coalition’s member organizations have put together demonstrations against the recent plans to deport African asylum seekers from Israel to third countries. Such demonstrations included a demonstration on International Women’s Day attended by disempowered Israeli and asylum-seeking women and a protest march of Israeli and African children.

The Feminist Engagement with Asylum-Seeking Women

Over the years, feminist engagement with asylum-seeking women has centered on an effort to identify these women as a discrete category of asylum seekers, worthy of protection under the refugee convention. Such efforts have focused on demonstrating that the forms of persecution women typically endure are unique and that protection gaps within the refugee convention and within the definition of refugees heighten women’s risk. This is due to the absence of gender as a convention-recognized ground for asylum, and the general male-oriented convention grounds, both in text and interpretation. Feminist efforts have thus sought to argue that refugee law should protect women from acts of persecution carried out by private actors in the private sphere, often abetted by lax enforcement of state laws. Such efforts have proven to be somewhat fruitful. Since the mid-1980s, many Western democracies recognize practices such as female genital mutilation, forced marriages, child marriages, trafficking, domestic violence, sexual violence and others as recognized forms of persecution. Women who seek asylum from these types of persecution in these specific countries are often given protection, even when said persecution is not directly attributable to the state.

Recently there has been a call to further deepen the engagement of refugee law with feminist theory, to promote a feminist reading of core concepts in refugee law, such as the concept of exclusion or surrogate state protection. Such cases highlight the fact that these concepts not only disproportionately affect women, but also influence women and men differently and can thus benefit from application of feminist methodologies.

The Current Research Project

In my current research project, I draw from the work with refugees and asylum-seeking women in Israel to argue that international refugee law would benefit from an additional form of engagement with feminism. In particular, I argue that refugee law should not remain at the level of status, or even at the level of the International Refugee Law framework. Instead of simply introducing feminist theory into International Refugee Law, I suggest that the underlying commonality among all women, regardless of status, would benefit from conjoining advocacy efforts on behalf of refugee women with those on behalf women more generally.

Such a legal perspective, arising from more fundamental human (women’s) rights would encourage the development of a legal framework that would allow the promotion of a deeper protection for asylum-seeking women, changing the legal focus from questions of status in determining whether someone, male or female, qualifies for protection as a refugee, to a broader focus on an entire set of necessary civil, social, economic and cultural rights. It also creates opportunities for solidarity between asylum-seeking women and other women, including other immigrants, citizens and residents, national minorities, and general feminist and women’s rights groups. Moreover, such a linkage will allow asylum-seeking women to benefit from the progress already achieved by feminist movements regarding women’s rights, rather than marginalizing them and confining them to seeking rights exclusively as refugees.

The call for mainstreaming the discourse of refugee rights into the discourse of women’s rights offers an important theoretical contribution that goes beyond the discussion of asylum-seeking women’s rights. The overarching question is this: Is it strategically preferable to advocate for the rights of refugees via instruments of International Human Rights, rather than via International Refugee Law?

In examining this question, I find significant arguments in favor of abandoning the prevailing view that International Refugee Law is a separate branch of international law to be applied and interpreted according to its own fundamental concepts, and separately from other areas of international law. Since the adoption of other human rights instruments, namely the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966, as well as regional human rights instruments, and, in this context, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1979, this tendency to view refugee law separately from international human rights law has been questioned. These international conventions on human rights should be applicable to refugees, as they apply to “all individuals within its territory and subject to its jurisdiction,” (ICCPR) or “everyone” (ICCPR, ICESCR). In other words, their applicability is not limited merely to citizens, residents, lawfully staying persons, etc., and they apply not just within a state’s territory but also along its borders and in other areas where states apply coercive force.

While there have been calls to interpret International Refugee Law in light of International Human Rights Instruments (as well as International Humanitarian Law), this argument goes further by asking, what would be the benefits of advocating for refugee rights – not just for refugee women’s rights – through a Human Rights framework, rather than a Refugee Rights framework? Put differently, which legal approach would be more beneficial in protecting refugees’ rights?

The exploration of this question is essentially a theorization of the work of the aforementioned coalition on asylum-seeking women and children in Israel. By embedding a theoretical legal question in the lived experience of women asylum seekers and women’s rights advocates, the expected outcome of this research stretches beyond its theoretical value to a reflection on the advocacy effort and raison d’être of the coalition.

Finally, in light of the recent shifts in the Israeli policies towards asylum seekers, the focus on asylum-seeking women and children and their integration is of high importance. This is ultimately the population that will not be resettled or deported from Israel, and thus their integration – and ability to enjoy the fruits of the feminist struggle in Israel – is an effort worth making for their own sake as well as for the sake of other women.

 

Dr. Tally Kritzman-Amir is a scholar-in-residence at HBI and a senior lecturer of Immigration and International Law at The College of Law and Business in Israel. She is a visiting fellow at The Human Rights Program of Harvard Law School.

Good Morning Heartache: International Law and the Global Challenges Facing Women

By Amy Sessler Powell

In the torch song, Good Morning Heartache, Billie Holiday sings, “Good morning heartache thought we said goodbye last night,
I turned and tossed ’til it seemed you had gone, But here you are with the dawn.”

Some say the lyrics refer to a lover and others believe they relate to her struggle with heroin addiction, but Law Professor Fareda Banda sees the lyrics as a metaphor for the “two steps forward – one step back” pace of the global struggle for women’s rights.

“You think things are getting settled. Huge progress is being made. Then you wake up, hear the news and learn that 493 million women still can’t read,” she said.

Prof. Banda studies the role that international human rights law can play in reducing discrimination against women around the world. She is the author of “Women, Law and Human Rights: An African Perspective,” the leading text on the struggle for gender equality in Africa. She will address the tug-of-war that represents global women’s rights when she delivers Good Morning Heartache: International Law and the Global Challenges Facing Women, the Fifth Annual Diane Markowicz Memorial Lecture on Gender and Human Rights, Sunday, November 9 at 7:30 p.m., Rapaporte Treasure Hall, Goldfarb Library, Brandeis University.

Fareda Banda

Fareda Banda

Uniquely qualified to speak on these topics, Banda is a leading international scholar on human rights and a professor of law at the School of Oriental and African Studies, University of London. Currently a Hauser Global visiting professor at New York University School of Law, she has consulted to the United Nations and taught on three continents.

“There is no region in world where women enjoy de facto equality, but in most they do have de jure equality,” Banda said.

What actually happens in every region of the world is quite a bit different than what the law promises. The gulf between the two relates in part to gender stereotyping and in part to a need to move toward transformative equality, to look beyond the law and focus on attitudinal change.

“What happens now is that people think we need law, but in most jurisdictions we have enough law guaranteeing women rights. On some issues, we need to stop making law and start practicing, enforcing and implementing laws we have,” Banda said.

The laws give a starting point so women can make complaints, but law is not the only answer. Her lecture will look at normative gains – the body of important international legal work done in the last 20 years that protects women’s rights and equates women’s rights with human rights. But, she will also detail egregious violations in every region of the world. For example, the World Health Organization, in the 2013 report, noted that one in three women would experience violence in her lifetime.

The lecture will offer a “balance sheet, a state-of-the-union” showing examples such as progress in violence prevention and in greater participation by women in education, but areas where women are still being held back such as reproductive rights.

Dr. Lisa Fishbayn Joffe, director of the HBI Project on Gender, Culture, Religion and the Law said, “Professor Banda brings to bear a deep understanding of the operation of domestic and international law and the practical challenges in implementing these rights. She also has a complex understanding, based on her study of law reform efforts across Africa, of the ways in which culture and tradition can be involved, to enable as well as to impede, legal change that will benefit women.”

The Markowicz Lecture Series was created by the HBI Project on Gender, Culture, Religion and the Law by Project Founder Sylvia Neil and her husband Dan Fischel in memory of Sylvia’s late sister, Diane, to honor her commitment to gender, equality and social justice. The series features internationally renowned scholars, judges, and activists discussing ways of negotiating the tensions between gender, equality and religious or cultural norms.

Amy Powell is the HBI Communications Director.

RSVP to attend The 5th Annual Diane Markowicz Memorial Lecture on Gender and Human Rights, “Good Morning Heartache: International Law and the Global Challenges Facing Women” presentation by Prof. Fareda Banda, SOAS London.

Free and open to the public, dessert reception.
Sunday, Nov. 9, 7:30 p.m.
Rapaporte Treasure Hall, Goldfarb Library, Brandeis University, 415 South St., Waltham, MA 02454

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