From Invisibility to Protection: Sexual Violence as Persecution and the Case for a CEDAW-Informed Refugee Framework

Abstract

Sexual violence increasingly operates as a driver of displacement, yet its recognition as persecution under international refugee law remains doctrinally fragmented and institutionally inconsistent. This paper argues that the protection gap is structural rather than merely interpretive, arising from the gender-neutral architecture of the 1951 Refugee Convention, the instability of “membership of a particular social group” as the principal basis for gender-related claims, and the inconsistent application of gender-sensitive standards in refugee status determination (RSD). It examines whether the Convention’s concepts of persecution, well-founded fear, and State protection can be reconceptualised through the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), particularly General Recommendations Nos. 32 and 35. Drawing on systemic treaty integration under Article 31(3)(c) of the Vienna Convention on the Law of Treaties, the paper contends that CEDAW should operate not merely as a supplementary interpretive resource but as a constitutive framework providing substantive content to gender-based persecution analysis. This approach shifts attention from isolated acts of sexual violence towards structural discrimination, State due diligence, patterns of inadequate protection, and trauma-informed assessment of evidence. The argument is applied to refugee protection in the Global South, with particular focus on India, where the absence of accession to the 1951 Convention and the lack of comprehensive refugee legislation make constitutional protection and UNHCR mandate RSD particularly significant. The paper proposes three complementary reforms: a UNHCR-led Protocol on Gender-Based Persecution, mandatory integration of CEDAW standards into RSD procedures, and codified complementary protection and non-refoulement safeguards. It concludes that doctrinal reinterpretation and institutional reform must operate simultaneously to make protection against sexual violence effective in practice.