2. Jurisprudence concerning the Convention ground "membership of a social group"
2.1
Hessischer Verwaltungsgerichtshof - 13.Senat
2.2
Verwaltungsgericht Frankfurt/M - 5. Kammer
2.3
Verwaltungsgericht Magdeburg
2.4
Verwaltungsgericht Frankfurt am Main - 9.Kammer
2.5
Verwaltungsgericht Trier
2.6
Hessischer Verwaltungsgerichtshof - 10.Senat - and Bundesverwaltungsgericht
3. Literature to the Convention reason "membership of a particular social group"
3.1
Günter Renner
3.2
Peter Schnäbele
3.3
Kay Hailbronner
3.4
Reinhard Marx
5.1
Arguments in favour of the observer theory
5.2
Arguments in favour of the participant theory
5.3
Historical Arguments
5.4
Arguments in favour of a modified observer theory
* Dr. iur. Paul Tiedemann (*1950) is judge of the Administrative Court Frankfurt am Main and lecturer of the Vocational College of Administration Wiesbaden. E-mail: paul@dr-tiedemann.de; WEB: www.dr-tiedemann.de
[1] The Convention Relating To The Status Of Refugees of 28 July 1951 – in the following: Geneva Convention (GC) – is not immediately valid in Germany. Rather these obligations under international law are converted in national statutes. Refugee status is stated or refused in a recognition procedure. In this procedure it is checked whether the asylum seeker is to be recognised as entitled to asylum pursuant to article 16a para. 1 (before 1993: article 16 para. 2) of the German Constitution (Grundgesetz - GG -) and whether he fulfills the prerequisites of article 51, para. 1 of the Ausländergesetz (Foreigner Law – AuslG). Article 16a para. 1 GG provides: "Persons persecuted on political grounds enjoy the right of asylum". Article 51 para. 1 AuslG provides: "A Foreigner may not be deported to a country, where his life or his freedom is threatened because of his race, religion, nationality, membership of a particular social group or political opinion." The legal consequences of recognition according to article 16a GG and the legal consequences of recognition according to article 51 AuslG are different in the detail.
[2] It is obvious that article 51, para. 1 AuslG incorporates article 33 of the Geneva Convention of 1951 in the German law. Against this, article 16a, para. 1 GG does not tie to the wording of the Geneva Convention. However the Bundesverfassungsgericht (BVerfG)1 has decided, that the concept of political persecution must be determined in accordance with the Geneva Convention and thus also presupposes a definite ground of persecution.2 In most cases this ground is also a ground according to the Convention.
2. Jurisprudence concerning the Convention ground "membership of a social group"
[3] The German jurisprudence on the Convention ground "membership of a particular social group" is very sparse. In numerous cases, in which this question would have been relevant, the courts have held the question irrelevant because the asylum claim failed for other reasons. As to this it must be taken into account that the majority of the German Administrative Courts follow the opinion of the Bundesverwaltungsgericht (BVerwG)3 which has ruled that the prerequisite for recognition under both article 16a GG and article 51 para 1 AuslG is the constituent fact of "political persecution".4 However, political is persecution only where it is to be classed with the state. The persecution has to be classed with the state, if either the state is persecutor itself or if the state accepts the persecution by third parties, because it approves the persecution or it tolerates it for political reasons.
[4] Therefore the
question of persecution because of membership in a particular social group
does not
surrender in all countries
in which the persecution does not stem from the state and is not tolerated
by the state. In addition, political is the persecution only then,
if it stands “in connection with the arrangement of the general order of
the living together of people and therefore has a public regard”.
It must be the purpose of the measure to exclude the person affected from
the public peace order.
[5] However as soon as the state appears as persecutor, this usually happens because of the actual or suspected political opinion of the victims of persecution or because of the religion, race or nationality. In other cases, if e.g. the persecution consists of genital mutilation, often the state does not exist (Somalia) or the state prohibits the genital mutilation by law, but is not able to enforce the law (Nigeria). The few cases in which the courts do make a statement concerning the question of the social group ground are not illuminating. Mostly, it is only a single sentence without further detailed reasonings in writing. In other cases it is not clear whether the observation concerning the social group Convention ground is part of the leading reasons of the decision.
2.1 Hessischer Verwaltungsgerichtshof – 13. Senat
[6] In a decision about provisional legal protection the 13th senate of the Hessische Verwaltungsgerichtshof (HessVGH)5 has held that the "group of women who are not willing to observe the Islamic clothes regulations" in Iran represents a social group according to the Geneva Convention.6 The state threatens them with public corporal punishment and with that persecution. Though the court thinks a political persecution has only then to be suspected, if the Iranian state sees in the rejection of Islamic clothing regulations an expression of a hostile attitude to the regime and therefore wants to inflict the political opponent with the punishment. It is unclear why the court at all subsumes the facts under the "social group"- ground. If it is decisive whether the Iranian state understands the rejection of Islamic clothes regulations as an expression of a political opinion, one can subsume the facts also under the "political opinion" ground.
2.2 Verwaltungsgericht Frankfurt/M – 5. Kammer
[7] The 5th chamber of the Verwaltungsgericht7 Frankfurt am Main has noted in a decision from the year 1996 that single women in Afghanistan form a social group because single women are without rights and must face at any time maltreatments and rapes.8 Though the court also states, that Afghanian authorities assume that women who show themselves alone in public hurt the moral code for reason of political opposition. If this is correct, the women are persecuted primarily because of their (imputed) political conviction and not because of their membership in a particular social group.
2.3 Verwaltungsgericht Magdeburg
[8] Some decisions deal with the topic of genital mutilation of girls. So the Verwaltungsgericht Magdeburg has held that girls and women from Côte d’Ivoire, who are threatened with genital mutilation, are politically persecuted, because the state tolerates this.9 But the court says nothing about the question of the relevant Convention ground. It is unclear whether the following sentence touches the question of the Convention ground: “Persons affected by genital mutilation are degraded to a bare object in disregard of their religious and personal right of self-determination.” It is unclear, how far a persecution because of religion can be accepted here. It is difficult to see any connection with the religion of the women who are been maltreated.
2.4 Verwaltungsgericht Frankfurt am Main – 9. Kammer
[9] In a verdict of 1999 the 9th chamber of the Verwaltungsgericht Frankfurt am Main also affirms the political persecution of women from Côte d’Ivoire because of threatened genital mutilation.10 However this decision is particularly interesting because the court applies the above described concept of political persecution as persecution by the state only on the right of political asylum in accordance with article 16a GG but not on the right of political asylum in accordance with the Geneva Convention (article 51 AuslG). Therefore it would be expected that the court would deal with the question of the substantial Convention ground in this decision. Unfortunately, this question is not addressed. The court affirms the asylum claim in accordance with the Convention alone because a life-threatening intervention threatens the plaintiff which she cannot escape in her own country.
[10] Opposite to this jurisprudence the Verwaltungsgericht Trier denies that threatening genital mutilation in Nigeria is relevant persecution but mentions that the "Convention ground of membership of a particular social group" comes into consideration.11
2.6 Hessischer Verwaltungsgerichtshof – 10. Senat – and Bundesverwaltungsgericht
[11] The 10th senate of the HessVGH has inferred due to the fact that homosexual intercourse and the repetition of other homosexual practices in Iran are punished with death that homosexuals in Iran represent a social group according to the Geneva Convention.12 Also here nearer grounds are missing.
[12] The BVerwG has confirmed this decision, but left open the question of the Convention ground.13 But the court doubted whether the case concerns the Convention ground of social group. Unfortunately, the federal judges did not explain clearly on what these doubts are based. They left the question open, because they have the opinion that in accordance with the German right of political asylum (articles 16a GG) a Convention reason is adequate but not necessary. Rather the right of asylum will always be granted in accordance with article 16a GG, if somebody is persecuted because of a personal characteristic which is unalterable for him. This must be a characteristic that is – with regard to the unalterability – comparable with that of race or nationality (or religious belief). Because the German right of political asylum would be based on the idea that no state shall have the right to impair a person’s body, life or liberty because of qualities attaching to her unchangingly. In accordance with the opinion of the BVerwG, persecution because of homosexuality is an asylum ground under German asylum law. But the BVerwG does not answer the question whether homosexuality is also an asylum ground under the law of the Geneva Convention.
3. Literature to the Convention reason "membership of a particular social group"
[13] The following section refers to the most important commentaries on the right of political asylum but not to the complete judicial literature. The statements on the question of "membership of a particular social group" in German juridical literature are also very sparse.
[14] Only a short note is found in the commentary of Günter Renner. This author is of the opinion that a social group is what is defined as a social group by the state of persecution.14
[15] Peter Schnäbele holds the opinion that it is possible to subsume all essential cases under the Convention ground of political opinion. Therefore the Convention ground of membership of a particular social group is not defined or discussed more exactly in his commentary.15
[16] Kay Hailbronner does not deal with the social group ground in his commentary generally. He mentions it only in connection with the question whether women form a social group in woman specific situations of persecution. He denies that they can because members of a social group seem to him to be only persons “with the same social background, habits or social status”. However, woman specific violence can be an instrument of political persecution because of another Convention ground (race, religion, nationality, political opinion).16
[17] In greater detail Reinhard Marx deals with this question in context with woman specific persecution.17 He also holds the opinion, that in the majority of cases of persecution aimed at women it is possible to subsume the case under another Convention ground, so that it does not require the case to be considered on the ground of membership of a social group. Sexual violence against women is used as an instrument of persecution on the grounds of race, nationality or religion. Or women would be maltreated and raped because of the political conviction of their men and sons. History shows that sexual force is a war strategy. Also coercive kidnappings never aimed at women as such, but against Christian or Yezidian women etc. Marx sees problems in cases of female non-conformism against the commandments of the Sharia. Marx primarily has an eye on the situation in Iran. He comes to the conclusion that the disregard of clothes regulations is punished essentially because it is considered as an outer sign of a political conviction which is critical of the regime. Therefore the argument about the appreciation of woman specific persecution is shadow-boxing. Marx does not show any examples of a classification under the "social group" ground. He does not mention the question of genital mutilation in Africa. He seems however to hold the opinion that one can only speak of a social group, if the members of this group see themselves as group, i.e., if they are connected to each other by a consciousness of a common identity and a common practice.
[18] In the German jurisprudence and judicial literature there is great uncertainty as to the meaning of the Convention ground of social group. It is therefore attempted if possible to subsume cases under another Convention ground. In cases in which this is not possible the Convention ground of social group is consulted, however without close analysis. Therefore one may state: There is no established interpretation of the Convention ground of social group in Germany. Since most courts are of the opinion that political persecution can only be persecution by the state, no great need exists in Germany to clarify the meaning of the particular social group ground more thoroughly.
[19] The different remarks show that one can understand the concept of particular social group in two ways namely according to a “participant theory”18 or according to an “observer theory”.19 In accordance with the participant theory a social group is defined as a common group-consciousness of its members. This interpretation regards the point of view of the participants of the group as important. "Social group" is here understood as a community. In accordance with the observer theory the social group is defined from outside, that is not by its members but by observers of the group. The observers assign persons to a group who show a common characteristic. This interpretation regards the point of view of the observers as important. Substantial observer is the cause of the persecution. "Social group" is here understood as a quantity in the mathematical sense.
[20] To be able to decide whether cases like that of genital mutilation come within the Convention ground of social group, one must decide in favor of one of these two interpretations. Provided one follows the participant theory women threatened with genital mutilation in their country of origin, do not constitute any social group. Because these women do not have the consciousness of special attachment. Women who are not circumcised are regarded by their tribe as outsiders who are disdained both by the other women and by the rest of the tribe. They do not have a feeling of identity but rather the feeling of exclusion and separation. From the participant point of view, there is no social group of the women threatened by genital mutilation.
[21] From the observer point of view a woman, who still has not been circumcised, is assigned (by the observer) the quality of women who show this “defect” (of not being circumcised) and who therefore are the object of purposeful treatment which consists of damaging them by heavy bodily injury and to mutilate and to handicap them for life.
[22] We must ask now which arguments speak in favour of the observer theory and which arguments speak in favour of the participant theory. If we have collected all arguments, we can evaluate and weigh them and get a result.
5.1 Arguments in favour of the observer theory
[23] In favour of the observer theory there are certain features of so-called soft law. Pursuant to article 35 of the Convention the Contracting States are obliged to cooperate with the UNHCR. The UNHCR thinks that this cooperation extends also to questions with regard to the determination of refugee status. This opinion has followed the Council of the European Union in the Preamble to the Harmonized Application of 3-4-1996 relating to the definition of the term "Refugee" in article 1 of the Geneva Convention.20 The Council describes there the Handbook of the UNHCR as "a valuable aid to Member States in determining refugee status”. Therefore the point of view of the UNHCR is an important factor.
[24] The UNHCR holds the opinion in the Handbook (para 77) that persons with similar background, habits or social position can form a "particular social group". A group consciousness of the group members does not matter. The UNHCR apparently supports the observer theory.
[25] Still more clearly than the UNHCR, the Council of the European Union itself supports the observer theory. Pursuant to article 15 (article J.5) of the Treaty on the European Union the Council adopts "Harmonized Applications" (HA). In HAs the strategy of the Union is to give meaning to the definition. Member states take care that individual state policy stands in harmony with the HA. HAs oblige the governments if necessary to make changes to domestic law which is not in harmony with the HA. However, HAs do not have the quality of immediately binding law. Though they can be helpful in the interpretation of the law.
[26] In HA of 3-4-199621 the Council has dealt with the refugee concept in article 1 of the Geneva Convention. In point 7.5 it speaks also to the concept of the "social group". In agreement with the Handbook of the UNHCR (para 77) it is noted here, that persons with similar background, habits and social position are a social group. Therefore this Convention ground partly overlaps with other Convention grounds like those of race, religion or nationality. Then follows an essential statement “Membership of a social group may simply be attributed to the victimized person or group by the persecutor. In some cases, the social group may not have existed previously but may be determined by the common characteristics of the victimized persons because the persecutor sees them as an obstacle to achieving his aims.” With that the Council declares itself clearly in favor of the observer theory.
5.2 Arguments in favour of the participant theory
[27] I find two arguments in favour of the participant theory:
2. The purpose of the Convention reasons. Apparently not every persecution, that is every threat in life, liberty and other human rights, leads to refugee status. Otherwise the Convention could have done without the enumeration of special grounds of persecution. If one however understands "social group" as a quantity which can be defined by the persecutor, this leads to the conclusion that every persecution falls into the application field of the Convention. If the originator of the persecution persecutes people because they eat bananas or drive Porsche, then bananas eaters and Porsche drivers are each a social group.
[28] It would be helpful, if we knew, what the drafters of the Convention thought when they inserted the ground of social group into the Convention. The first draft of the resolution A/RES 429 (V), which was already accepted by the Plenum of the 5th UN General Assembly, did not contain this ground.22 The General Assembly appointed a meeting of delegates to give further advice. In this meeting Sweden made the suggestion to include membership of a particular social group in the enumeration of the grounds of persecution. The suggestion was agreed to without discussion because all participants at the meeting were of the opinion that it would be without influence on the definition of the term “refugee”. It would be interesting to know which reasons Sweden gave for its application. Unfortunately, we have only very sparse information concerning this question.
[29] The Swedish representive Sture Petrén, gave only the following short reasoning: “Such cases (persons, who might be persecuted owing to their membership of a particular social group) existed, and it would be as well to mention them explicitly.”23 Before the Swedish representive pointed out, that Sweden was a country of asylum in the past. He continued: “... but the fact must be taken in account that its capacity for absorbing large numbers (of refugees) was limited and that, particularly in the present serious state of world affairs, considerations of national security must play a certain part.”
[30] It seems to be clear, that the Swedish idea was not, to open refugee status for all kinds of refugees. The limited capacities and the interest of national security demanded a restriction. On the one hand the social group ground should include a definite kind of refugees but on the other hand this ground should not devalue or cancel the limitation to definite grounds of persecution anyway. Nevertheless the official documents about the consultations concerning the draft of the Geneva Convention let the question open: What is meant by membership of a particular social group? What we can see is that the Swedish delegation did not disclose their understanding of a particular social group.
[31] Unfortunately the internal documents of the Swedish government bring also not so much more clearness. What we know is that the Swedish proposal was motivated by the draft of the national alien act, which was just been drawn with the Geneva Convention simultaneously.24 Among the Swedish documents concerning the considerations and drafts of the convention as well as the national alien act there is a letter from the Swedish representive Sture Petrén to the minister of foreign affairs dated of 28th June 1951. In this letter Mr. Petrén wrote that his proposal to introduce the social group ground in the draft of the Convention was motivated by the reason that the definition of the term “refugee” in the Convention should be in accordance with the definition in the planned national alien act (which came in force 1954). The considerations of this later alien act were given in a expertise which was published on 21st Nov. 1951. In the considerations to the later art. 47 of that alien act is written, that the definition of the term “refugee” is based on the former Swedish practice. This practice included that the Swedish government gave protection also to such people who were persecuted because of their membership of a particular social group. But unfortunately the Swedish documents of the 50ies seem not to give any example of that what was meant by a particular social group.
[32] But what we know is that there is a very close connection between the Swedish proposal and the Swedish national alien law. If we have now a look at the present Swedish alien law, we can discover that the Swedish concept of membership of a particular social group was never based on the observer theory.This result is confirmed by the current Swedish alien act. This statute includes in chapter 3 art. 3, para 325 besides a definition of refugees as people persecuted because of membership of a particular social group a special regulation concerning people who are persecuted because of their homosexuality or because of gender. Such regulations would be superfluous, if these persons were included by the concept of the particular social group. Homosexuals as such are not a social group. The sex of people do not define them as members of a social group. The Swedish practice and legislation seem me to show, that the Swedish understanding of a particular social group means a group whose members have a consciousness of their common identity. Therefore the history of the making of the convention speaks for the participant theory.
[33] Examples for membership of a particular social group are: aristocratic origin (memberhip of a aristocratic family), membership of a lingual minority or other minorities or membership of an association. Perhaps we can think on associations like trade unions or freemansions.
5.4 Arguments in favour of a modified observer theory
[34] However, perhaps we can find a “middle way” between the participant theory and the observer theory. Perhaps we can understand the remarks of the UNHCR and the Council of the European Union also according to a "modified observer theory". In favour of this point of view is the fact that both authorities point out that the Convention ground of social group is able to overlap with the Convention grounds of race, religion or nationality. However in connection with this, both authorities do not mention the possibility of a coincidence with the Convention ground of political opinion. From this one can perhaps deduce, that the definition of a social group is not arbitrary; that it must be a characteristic which similarly like race, religion and nationality is not freely selectable or changeable by the person affected; that it must be a personal characteristic, which attaches to the person affected "without own assistance, so to speak fateful". This criterion would be identical with the one which regards the BVerwG as relevant for the German right of political asylum pursuant to article 16a GG.26
[35] In accordance with this criterion Iranian women who refuse to wear the chador and who therefore are persecuted, are not members of a particular social group. However, the women from African countries where genital mutilation is threatened form such a group. The advantage of this interpretation matters in that the Convention grounds keep their restrictive function and are not made irrelevant by the Convention ground of social group. But we have to see the problem, that the modified observer theory demands a new interpretation of the Convention grounds: not as a closed enumeration but as a collection of examples. Perhaps we can notice that the practice of the states has in this respect led to an amendment of the meaning of the Convention grounds.
1 Federal Constitutional Court
2 BVerfG, Beschluss v. 1.7.1987 - 2 BvR 478, 962/86 -, BVerfGE 76, 143, 157
3 Federal Administrative Court
4 BVerwG Urteil v. 18.1.1994 - 9 C 48.92 -, BVerwGE 95, 42
5 Higher Administrative Court of Hessen in Kassel
6 HessVGH, Beschluss v. 14.11.1988 - 13 TH 1094/87 -, InfAuslR 1998, 17
8 VG Frankfurt/M, Urt. v. 23.10.1996 - 5 E 33532/94.A (3) -, NVwZ-Beilage 6/1997 S. 46
9 VG Magdeburg, Gerichtsbescheid v. 20.06.1996 - 1 A 185.95 -, NVwZ-Beilage 2/1998 S. 18)
10 VG Frankfurt/M, Urt. v. 29.03.1999 - 9 E 30919/97.A (2) -, NVwZ-Beilage I 7/1999 S. 71
11 VG Trier, Urt. v. 27.04.1999 - 4 K 1157/98 -, NVwZ-Beilage I 7/1999 S. 75
12 HessVGH, Urt. v. 21.08.1986 - 10 OE 69/83 -, InfAuslR 1987, 24)
13 BVerwG, Urt. v. 15.03.1988 - 9 C 278.86 -, BVerwGE 79, 143
14 Werner Kanein †/ Günter Renner, Ausländerrecht 6th ed. München [C.H. Beck] 1993 § 51 Rn 7.
15 Peter Schnäbele in: Roland Fritz / Jürgen Vormeier (Hrsg.): Gemeinschaftskommentar zum Ausländerrecht (GK-AuslR) Neuwied 43.Lfg. Neuwied [Luchterhand] 1998 § 51 Rn 54f.
16 Kay Hailbronner, Ausländerrecht. Kommentar Ordner II, 21. Erg.Lfg. Karlsruhe [C.F.Müller] 1999, B1 Art. 16a GG Rn. 65
17 Reinhard Marx, Handbuch zur Asyl- und Flüchtlingsanerkennung, Neuwied [Luchterhand] 1995, §§ 76
18 This seems to be the opinion of Reinhard Marx, Handbuch zur Asyl- und Flüchtlingsanerkennung, Neuwied [Luchterhand] 1995, § 77 Rn 37, 38
19 This seems to be the opinion of Günter Renner in: Werner Kanein †/ Günter Renner, Ausländerrecht 6th ed. München [C.H. Beck] 1993 § 51 Rn 7
22 Michael Marugg: Völkerrechtliche Definitionen des Ausdrucks “Flüchtling”. Ein Beitrag zur Geschichte unter besonderer Berücksichtigung sogenannter de-facto-Flüchtlinge, Basel, Frankfurt/M [Helbing & Lichtenhahn] 1990, p. 142f.
23 Alex Takkenberg / Christopher C. Tahbaz: The Collected Travaux Preparatoires of the 1951 Geneva Convention Relating To The Staus Of Refugees Vol. III Amsterdam [published by the Dutch Refugee Council] 1988 A/CONF.2/SR.19 p.14; many thanks to Mr. Nicolaus and Mrs. Sabourin, UNHCR Vienna for support to find out these sources.
24 I owe the following information to a report of the Swedish Ministry of Foreign Affairs, which has been sent to me by the Swedish embassy in Berlin with letter of 10-12-2000. Special thanks to Mr Tommy Lindberg, Ministry of Foreign Affairs, Stockholm for this informations and for his effort.
25
For this information many thanks to Göran Håkansson, Director-General,
Aliens Appeal Board, Stockholm. The wording of the regulation is:
Med skyddsbehövande
i övrigt avses i denna lag en utlänning som i andra fall än
som avses i 2 § lämnat det land, som han är medborgare i,
därför att han
1. känner välgrundad
fruktan för att straffas med döden eller kroppsstraff eller att
utsättas för tortyr eller annan omänsklig eller förnedrande
behandling eller bestraffning,
2. på grund av en
yttre eller inre väpnad konflikt behöver skydd eller på
grund av en miljökatastrof inte kan återvända till sitt
hemland, eller
3. på grund av sitt
kön eller homosexualitet känner välgrundad fruktan för
förföljelse.
Som skyddsbehövande
skall även anses den som är statslös...dit.
In English:
The term alien in need of
protection otherwise used in this act refers to an alien who in cases other
than those referred to in Section 2 has left the country of his nationality
because he
1. has a well-founded fear
of being sentenced to death or corporal punishment or of being subjected
to torture or other inhuman or degrading treatment or punishment,
2. due to an external or
internal armed conflict he needs protection or, on account of an environmental
disaster, he cannot return to his country of origin, or
3. because of his/her sex
or homosexuality, he/she has a well-grounded fear
of persecution.
A stateless person who...shall
also be deemed to be an alien in need of protection.
26 BVerwG, Urt. v. 15.03.1988 - 9 C 278.86 -, BVerwGE 79, 143