This thesis seeks to answer the research question: In what way could the protection of women against gender-based violence be improved in international refugee law? This thesis is a conceptual research paper which i) analyses the existing legal framework in relation to this research questions in Chapter 1 “The existing legal framework”; and ii) provides recommendations on how to construct a new conceptual framework in Chapter 2 “Creation of new law, reformulation of policies”. The research question is answered on two levels: first, international law; and second, European law. National law is also mentioned, but a thorough analysis of different branches of national law is beyond the scope of this thesis. In the part which analyses international law, the focus lies on the 1951 Refugee Convention and UN Responses, including UNSC and UNGA Resolutions, CEDAW, the work of the Special Rapporteurs of the Human Rights Council, and UNHCR.^ Under European law, the main instruments of EU law are analysed shortly and two case examples with regards to the research question, “the safe country concept”, as well as “the Dublin system” will show how EU law is specifically applied.
The main findings of this thesis are the following: i) the Refugee Convention follows a very gender-neutral perspective instead of taking the special characteristics of male and females into consideration and is thereby gender- discriminating; ii) the UNs responses countering GBV against refugees have brought significant progress and have helped law and law interpretation, as well as application of the international legal framework, to evolve in the direction of providing more and a more comprehensive and inclusive protection of refugees against GBV; iii) the EU as well as the Council of Europe provide for a comprehensive framework in addressing GBV against refugees, but the practical application of law is very problematic,^ as was shown in the two case examples of “the safe country concept” and “the Dublin system”; iv) Austria, amongst others, is committed to take GBV into account when asylum applications are adjudicated, but measures to fight GBV have not been integrated directly into the legal system for immigration and asylum in Austria.
To address the weaknesses of international, European, and national refugee law, the following main recommendations were given: i) a sixth basis on gender should be included in the 1951 Refugee Convention and the other five Convention bases shall allow for full and equal utilization of gender-based violence related claims; ii) the private sphere shall be given the same consideration as the public sphere in the Convention; iii) non-state actors as agents of persecution shall be explicitly recognized and the “well-founded nature of fear” and the “avoidance of persecution” shall be interpreted more broadly,^ and “internal flight possibilities” more coherently; iv) the UN Security Council, the UN General Assembly, and the UN Special Rapporteurs of the Human Rights Council shall include a more specific debate about gender-based violence against refugees, and also a debate on this topic outside traditional war settings.^ It was also suggested that CEDAW, as well as UNHCR in some areas of its work, should adapt a broader view of womens identity by acknowledging the intersectionality of discrimination; v) the EU should formulate more concrete rules regarding the protection of survivors of GBV, especially with regards to the application of the “safe country concept” and the “Dublin system”, and shall ensure that the same quality of protection is guaranteed in every EU Member State; vi) a working group on protecting refugees who are GBV survivors should be established (and possibly coordinated by UNHCR), where states can share their legal best practices in national law and its application.