The Convention Relating to the Status of Refugees, in daily speak “the Refugee Convention”, defines who is a refugee and consequently, who has the right to be granted asylum.
Article 1. A. For the purpose of the present Convention, the term refugee shall apply to any person who
2... (has a) well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. (art 1.A.2.)
As stated above, to be legally defined as a refugee you have to have a well-founded fear of persecution due to your race, religion, nationality or membership of a particular social group or political opinion. Gender is not included. If you are a Congolese woman and a victim of rape as a weapon of war, or perhaps an Indian girl like Jyoti Singh, you may have a well-founded fear of persecution. However, this has nothing to do with your race, religion, nationality or any of the other reasons listed in art 1.A.2. It solely has to do with you not being a man. If you are a woman, you belong to a particular social group, right? Unfortunately, no. The refugee convention is a legal document and legal documents have their own language. A word that means one thing in daily language may mean something else in the legal language. In this case, women are not being a part of the prerequisite “particular social group”. Since the social group of women is almost 50 % of the world’s population, it is not a “particular” social group. In other words, there are too many women in the world for us to be legally regarded as a particular social group in the refugee convention. Hence gender violence is not included in the Refugee Convention. The response from United Nations Association of Sweden about gender violence not being included in the Refugee Convention goes something like: “well, gender violence is included in the both the European Union Law and the Swedish Alien Act. So victims of sexual violence are defined as refugees in every member state of the European Union. Hence they have no problem getting asylum here or in any other EU country”. To their defense, this statement was made prior to our investigation into legal cases about Congolese women.The Swedish Alien Act defines these women as refugees. The Alien Act chapter 4, paragraph 1 has a similar wording as art 1.A.2. in the Refugee Convention. However, in 4:1 the law maker has added “or due to gender, sexual orientation or …”.
Without going into details about Swedish migration law, if a person has a well-founded (objective) fear of being persecuted due to gender, and the authorities/government cannot provide an effective protection that is not of temporary nature, that person is to be defined as a refugee. In other words, if the Congolese government cannot provide an effective protection for a particular woman, so that she is not going to be raped if deported to DRC, she is to be defined as a refugee. See Swedish Alien Act, chapter 4. Apart from being defined as a refugee, you can also fall under two other categories and get a residence permit that way. In short, a Congolese woman can argue that she a) is a refugee, and b) if not defined as a refugee, at least she falls under one of the other two categories and should get a residence permit that way.
Lastly, there is a legal difference between being able to get asylum and being deported. The United Nations Convention against Torture (UNCAT), art. 3, states that if there is a founded reason to believe that a person will be exposed to torture if deported to his or her home country, then the deportation cannot take place. This rule of non-refoulment can also be found in the European Convention of Human Rights (ECHR) art. 3 and is a fundamental principle in international law.
Despite this, not only do victims of sexual violence face huge difficulties getting asylum all over the world, but many countries also deport Congolese women to a regime responsible for their rape.