M.E.N., a Burundian national, claimed asylum in Denmark. She indicated that she had fled Burundi owing to political persecution and had been ganged raped by three men before leaving the country. She further indicated that she feared she might be subjected to rape or other forms of bodily harm, if Denmark forced her to return to Burundi.
In April 2011, Denmark’s Immigration Service concluded that M.E.N.’s allegations were not credible and she was not at risk of persecution in Burundi. It therefore rejected M.E.N.’s claim for asylum.
In September 2011, the Refugee Appeals Board upheld the decision of the Immigration Service. It concluded that M.E.N. had failed to establish that she would face a real risk of persecution in Burundi. It based its decision, inter alia, on its view that M.E.N.’s political activities in Burundi had been of a limited nature and the absence of evidence linking the gang rape to her political activities. The Board further concluded that the threats and harassment experienced by M.E.N. in Burundi were not of such intensity and character to justify granting her asylum in Denmark.
M.E.N. submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) in which she claimed that her deportation to Burundi would violate articles 1, 2(c), 2(d) and 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). She based her claim on the fact “that she was raped by three men in Burundi before she fled owing to political persecution by the Burundian authorities and, as a woman, could be subjected to rape or other forms of bodily harm upon her return.”
M.E.N. was awaiting deportation from Denmark to Burundi at the time of submitting her communication to the CEDAW Committee. Pursuant to article 5 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol) on interim measures, the CEDAW Committee asked Denmark to refrain from deporting M.E.N while it considered her communication. The State Party agreed to suspend her deportation, pending a decision by the CEDAW Committee.
State Party’s observations on admissibility
The State Party challenged the admissibility of the communication on several grounds.
Absence of jurisdiction and extraterritoriality (arts. 2 and 4(2)(b))
The State Party submitted that the CEDAW Committee lacked jurisdiction to consider the communication and that it should declare the communication inadmissible ratione loci and ratione materiae under articles 2 and 4(2)(b) of the Optional Protocol. The State Party asserted that M.E.N.’s claims were “based not on any treatment that she will suffer at the hands of the State party, but on consequences that she may suffer if she is returned to Burundi” and that its decision to return M.E.N. to Burundi cannot trigger its responsibility under CEDAW. The State Party further asserted: “it is responsible only for obligations vis-à-vis individuals under its jurisdiction and cannot be held responsible for discrimination in another country. Returning a person who comes to the State party simply to escape from discriminatory treatment in her own country, however objectionable that treatment may be, cannot constitute a violation of the Convention by that State party.”
Failure to exhaust domestic remedies (art 4(1))
The State Party further claimed that M.E.N. had failed to exhaust domestic remedies, as required by article 4(1) of the Optional Protocol. According to the State Party, M.E.N. had failed to raise sex discrimination before the Immigration Service or the Refugee Appeals Board, which meant that it had not been afforded an opportunity to deal with those allegations.
Failure to substantiate claim (art 4(2)(c))
Lastly, the State Party claimed that M.E.N. had not substantiated her claims, in accordance with article 4(2)(c) of the Optional Protocol. It asserted that M.E.N. had simply referred to articles 1, 2(c), 2(d) and 3 of CEDAW, instead of explaining which specific rights it had violated. It also suggested that article 14 on rural women, which M.E.N. had mentioned in her communication, was not relevant in the circumstances.
CEDAW Committee’s decision on admissibility
A majority of the CEDAW Committee concluded that M.E.N. had failed to exhaust domestic remedies and declared the communication inadmissible. A minority of the Committee declared the communication admissible and found violations of articles 2(c), 2(d) of CEDAW, read in conjunction with articles 1 and 3.
A majority of the CEDAW Committee concluded that M.E.N. had failed to exhaust domestic remedies, as required by article 4(1) of the Optional Protocol, and declared the communication inadmissible. The majority noted that “the alleged rape was not raised as a ground per se in support of her application for asylum” and, on this basis, concluded that the State Party “clearly had no opportunity to consider her gender-based allegations, which [were] at the heart of her communication….”
While the majority decided not to address the remaining grounds of inadmissibility raised by the State Party, it did address States Parties’ responsibilities under CEDAW in situations in which a State Party extradites, deports, expels or otherwise removes an individual to a country where she claims that she would suffer a violation of her rights under CEDAW. In doing so, the majority affirmed that the obligations in CEDAW apply to citizens and non-citizens and States Parties are “responsible for all their actions affecting human rights, regardless of whether the affected persons are in their territories.” It also rejected the State Party’s argument that CEDAW does not deal with removal to torture or other serious threats to the life and security of a person. It reiterated that gender-based violence against women is a form of discrimination covered by article 1 of CEDAW, which can also impair or nullify women’s enjoyment of other rights, including the right to life, the freedom from torture or to cruel, inhuman or degrading treatment or punishment, the right to liberty and security of the person and the right to equal protection under the law.
The majority also clarified that CEDAW does have extraterritorial effect. It explained:
under article 2 (d) of the Convention, States parties undertake to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation. This positive duty encompasses the obligation of States parties to protect women from being exposed to a real, personal and foreseeable risk of serious forms of gender-based violence, irrespective of whether such consequences would take place outside the territorial boundaries of the sending State party: if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person’s rights under the Convention will be violated in another jurisdiction, the State party itself may be in violation of the Convention. For example, a State party would itself be in violation of the Convention if it sent back a person to another State in circumstances in which it was foreseeable that serious gender-based violence would occur. The foreseeability of the consequence would mean that there was a present violation by the State party, even though the consequence would not occur until later. What amounts to serious forms of gender-based violence will depend on the circumstances of each case and would need to be determined by the Committee on a case-by-case basis at the merits stage, provided that the author had made a prima facie case before the Committee by sufficiently substantiating such allegations.
As the majority had determined that M.E.N.’s communication was inadmissible, it did not examine the extraterritorial application of CEDAW in her case.
Minority (admissible and violations)
CEDAW Committee member Šimonović issued an individual (dissenting) opinion – joined by Committee members Halperin-Kaddari, Neubauer and Pimentel – in which she declared the communication admissible and concluded that the State Party had violated articles 2(c), 2(d) of CEDAW, read in conjunction with articles 1 and 3.
The minority concluded that M.E.N. had exhausted domestic remedies, as required by article 4(1) of the Optional Protocol. Contrary to the view of the majority, the minority concluded that M.E.N. had raised in substance a sex discrimination claim relating to political persecution at the domestic level. It noted that M.E.N. had raised the fact that she had been raped with the State Party and that this was sufficient for the State Party to have had an opportunity to “consider sex-based discrimination with regard to political persecution and to rape as a form of sexual violence that is recognized as a form of gender-related persecution and as a form of discrimination against women, together or separately.” The minority took the view that M.E.N. did not need also to make explicit reference to rape as a form of discrimination against women. It explained:
The pertinent question in the present case is whether the author raised sex-based discrimination, whether intersecting other grounds of persecution or alone, as the basis for her claim during the asylum procedure. That the author mentioned during her asylum proceedings that she fled Burundi owing to political persecution, and that she had been raped by three men while fleeing, should be sufficient for the State party to consider rape to be a form of discrimination against women and gender-related persecution, whether alone or intersecting with alleged political persecution. The author should not be required to make explicit reference to rape as a form of discrimination against women but to raise the substance of her claim, which is what she did. Sexual violence and rape is universally accepted as a form of gender-based violence against women and a form of discrimination against women falling under article 1 of the Convention, as elaborated in the Committee’s general recommendation No. 19, which has clearly placed violence against women within the ambit of discrimination against women by stating that gender-based violence is a form of discrimination against women and includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.
In addition, the minority concluded that M.E.N. had sufficiently substantiated her claim, as required by article 4(2)(c) of the Optional Protocol to CEDAW. It explained that, “for the purposes of admissibility, the author needs to sufficiently substantiate that she has a well-founded fear of being persecuted under the 1951 Convention relating to the Status of Refugees.” The minority Committee members took the view that M.E.N. had done this
by explaining facts relating to her political persecution as a member of the Front national de libération (FNL), the opposition party, whose members were expelled and killed; that her home town, where many FNL members lived, was bombarded by the Government of Burundi…; that she was raped by three men armed with knives while she was fleeing; and that she was unable to seek justice because [of] the attack by government forces.
The minority members also concluded that the communication was admissible under article 4(2)(b) of the Optional Protocol to CEDAW because its subject matter was compatible with CEDAW.
Finally, the minority members concurred with the majority’s view about the extraterritorial application of CEDAW and declared the communication admissible under article 2 of CEDAW.
Šimonović, joined by the other dissenting CEDAW Committee members, concluded that the State Party had violated articles 2(c), 2(d) of CEDAW, read in conjunction with articles 1 and 3. In doing so, they clarified that article 2(c) of CEDAW:
- “establishes a positive duty … to ensure the effective protection of women against any act of discrimination” during the entire asylum process;
- requires States Parties to ensure that their asylum systems have “a thorough understanding of the particular forms of persecution and human rights abuses that women and girls experience because of their sex or gender;”
- requires States Parties to ensure “women are not discriminated against and that gender-related forms and grounds of persecution are addressed during the asylum procedure.”
The minority members also clarified that article 2(d) of CEDAW “requires States parties to refrain from engaging in any act or practice of discrimination” during the asylum process. In addition, they explained that articles 2(c) and 2(d) require States Parties to “put in place asylum procedural safeguards to ensure that women’s claims are properly heard and assessed.”
The minority members of the CEDAW Committee recognised that asylum seekers are required to provide relevant factual information to substantiate their claim of discrimination based on sex/gender-related persecution, but concluded that it “should not be incumbent upon the asylum seeker to use in her asylum claim words such as ‘discrimination based on sex’ and/or ‘gender-related persecution’.” Rather, they explained, the decision maker should “ask further relevant questions and apply this information to the legal framework.” They took the view that M.E.N. had provided relevant information to the State Party that should be sufficient for the State Party to assess her discrimination claim fully.
The minority was critical of the Refugee Appeals Board’s decision that M.E.N. would not be at risk of assault if returned to Burundi because political activities were of a limited nature. The minority expressed concern that State Party had ignored the “fact that women are, in general, underrepresented at the high level of political parties and that women’s political activity may not always look like male political activity or may not be equally valued in the male-dominated political environment.” It also expressed concern that the State Party had “failed to assess in a non-discriminatory manner the risk of the author’s future political persecution or gender-related persecution or whether the author could benefit from State protection, taking into account all relevant facts relating to her claim of political persecution and sexual violence….”
The minority explained that although the State Party did not dispute that M.E.N. had been gang raped at knifepoint, it did dispute that the rape constituted a ground for persecution under CEDAW or the Refugee Convention. The minority responded:
Rape is the most notorious form of sexual violence directed against women because of their sex or gender. It constitutes a gender-related form of persecution under the Refugee Convention and sex/gender-based discrimination and violence against women under [CEDAW]. Rape is considered to be brutal when it is gang rape, such as in the present case, but was completely neglected by the State party. Rape inflicts severe mental and physical pain and suffering and is also tearing apart social units. For that reason, it has been acknowledged as a particularly effective tool of genocide, as a crime against humanity, as a war crime and as a human rights violation. Rape has been used as a form of persecution by State and non-State actors and various country guidelines on refugee claims specifically list rape and fear of rape as a form of persecution [citations omitted.
Turning their attention to the facts of the communication, the minority concluded:
the State party found the gang rape perpetrated by three man armed with knives unrelated to the author’s asylum claim and ignored its links with the overarching violence and impunity created by the conflict when it occurred. In so doing, the State party failed to adequately consider the environment surrounding the rape, including impunity for the crime. The State party failed to recognize the rape of the author as a separate or intersecting form of gender-related persecution and sex-based discrimination. In so doing, it failed to afford the author protection under [CEDAW] and to exercise its positive duty to protect the author from being exposed to a real, personal and foreseeable risk of serious forms of gender-based violence if returned to Burundi.
Communication No. 35/2011, UN Doc. CEDAW/C/55/D/35/2011 (19 August 2013)