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Trapped Between Borders: A Proposal to Apply International Legal Protection to Persecuted Women and Girls Who are Unable to Flee

Women and girls who face forced marriage, honor killing, female genital mutilation, and other forms of gender-based persecution can apply for refugee status and resettlement to a safe third country if they are able to cross an international border. Yet in countries like Iraq, where laws and traditions severely curtail women’s rights and mobility, travel outside of the country on their own is near impossible. Women with potential refugee or asylum claims based on gender-based persecution face heightened barriers to accessing international legal protection due to domestic legal and cultural barriers, and the nature of gender-based violence where more often than not the perpetrators are those closest to them and well positioned to exert domination and control: members of their family, clan, or tribe.1 Women’s access to safety and justice in many countries remains elusive where States persistently deny women’s demands for legal rights and resources to respond to violence against women, highlighting the importance of access to international protection for women facing persecution who are unable to flee across an international border. 
 
States have a duty to protect their citizens, yet many fall short particularly when it comes to women and girls. Iraq is one such country that maintains harmful laws and practices that condone gender-based violence and discrimination, and although there has been some progress with legislative reform, it takes time to fully implement them, leaving individual women unable to benefit and at continued risk of persecution. In 2014 in an egregious case, the Iraqi government breached its duty to protect its citizens when it failed to prevent attacks by the Islamic State of Iraq and Syria (ISIS) against the religious minority Yazidi community, leaving women and girls exposed to sexual violence and trafficking as part of ISIS’ genocide. Persecuted women and girls in Iraq and other countries are trapped, immobilized in their homes, shelters, camps, and jails while the perpetrators remain free; yet if they could cross an international border, they would qualify to apply for refugee protection and possible resettlement. 
 
While still in their homeland, individual cases of persecuted women who are not part of displaced populations have few avenues for legal protection and services while still inside their country borders. They fall outside of the United Nations High Commissioner for Refugees’ (UNHCR) categories of “persons of concern” that include people who have been forced to flee such as refugees, internally displaced persons, stateless persons, or returnees; the distinction ostensibly between those fleeing as part of larger population flows rather than as individuals. Individual women fleeing persecution, because they are generally excluded from humanitarian services and programs, are forced to rely on what, if anything, is provided by the State and local and international nongovernmental organizations. This is despite the fact that women who face gender-based persecution share similar characteristics to other recognized groups such as refugees and internally displaced persons who have suffered human rights violations and are in need of protection. 
 
This Article provides a case study based on women’s actual experiences in Iraq to illustrate the heightened barriers women experience due to discriminatory domestic laws and traditions as well as the nature of gender-based persecution that prevents them from fleeing across an international border. Furthermore, this paper highlights the need to bring individual women and girls fleeing persecution under the “persons of concern” umbrella as one way to address their needs while they pursue international protections inside their borders. In Central America, UNHCR piloted a program to provide safe access to international protection for individuals inside their country who were identified for safe resettlement, demonstrating there is acknowledgment that some individuals require, and would qualify, for protection but face additional hurdles to accessing legal protection. 
 
I propose extending legal and humanitarian benefits to women and girls facing gender-based persecution while they are still inside their countries of origin and who cannot flee across an international border. At a minimum this approach would apply in States that fail significantly to respond to gender oppression and violence, restricting women’s mobility, thereby putting additional barriers in front of women to access international protection. To achieve this, I recommend creating a new category of “persons of concern” to include “persecuted women and girls” (PWGs). This would pave the way for UNHCR to include individual women and girls stuck in shelters, jails, or other confined spaces to have access to services and protection similar to other persons of concern. Once these individuals are clearly recognized as a protected group, it would open the door to extending in-country refugee protection and resettlement to safe countries to PWGs without requiring they cross an international border.