6 - Judicial Constructions of the Refugee Convention Reasons for Persecution in Situations of Contemporary Armed Conflict

Summary

Chapter 6 examines how the reasons for persecution are applied and interpreted by appellate authorities when individuals flee contemporary armed conflicts. It claims that due to appellate authorities’ conventional warfare perspective and the requirement of singling out and heightened standard of proof, there is limited judicial engagement with the Refugee Convention reasons in light of widespread violence. Instead, the Refugee Convention reasons for persecution are applied solely in light of the individual circumstances of appellants where these are considered to amount to singling out. Accordingly, there is a general failure to adequately consider actual or imputed Refugee Convention reasons for persecution. Where appellate authorities find that appellants have been singled out, they interpret the Refugee Convention ground of (imputed) political opinion too narrowly and fail to acknowledge women’s experiences of gendered violence. The chapter argues that violence is in fact motivated by identity politics on the basis of real or imputed reasons such as sex, ethnicity, race, religion, political opinion or social group and that therefore violence is not felt indiscriminately by persons fleeing armed conflicts. The chapter highlights the significance of imputed political opinion as a Refugee Convention ground in light of the nature of political violence and discrimination.