Cinsiyet Temelli Zulme Karşı Uluslararası Hukukta ve Türk Hukukunda Sağlanan Koruma Statüleri
Ceren Karagözoğlu, Rumeysa Partalcı1951 tarihli Mültecilerin Hukuki Statüsüne Dair Cenevre Sözleşmesi uluslararası hukuk çerçevesinde şekillenen uluslararası koruma rejiminin bağlayıcı temel kaynağını oluşturmaktadır. Bu nitelik, Sözleşme’ye cinsiyet temelli zulme karşı başvurulacak ilk kaynak olma özelliğini kazandırmakta; mülteci statüsü, cinsiyet temelli zulüm karşısında bireye uluslararası koruma sunan temel araç olmaya devam etmektedir. Ancak 1951 tarihli Cenevre Sözleşmesi’nde öngörülen ölçütlerin normatif temelde genişletilmemiş olması, bireylerin temel hak ve özgürlüklerini güvence altına alan insan hakları sözleşmelerinin nihayetinde özel bir koruma statüsü öngörmemesi, özellikle cinsiyet temelli zulüm karşında mülteci tanımının dışında kalan bireyler için öngörülen ve bu niteliği itibariyle tamamlayıcı olarak adlandırılan statülerin varlığını gerekli kılmıştır. Çalışmada ise bu doğrultuda cinsiyet temelli zulme karşı, uluslararası hukukta ve Türk hukukunda sağlanan koruma statülerine odaklanılmaktadır. Bu kapsamda 1951 tarihli Cenevre Sözleşmesi, 1967 tarihli Mültecilerin Hukuki Statüsüne İlişkin Protokol, Sözleşme ve Protokol’ün uygulanmasına yön vermesi sebebiyle BMMYK uygulamaları ve tamamlayıcı koruma statüsüne yer vermesi sebebiyle Avrupa Birliği Vasıflandırma Direktifi (2011/95/EU) ve Türk mevzuatı çerçevesinde öngörülen koruma rejimleri bakımından değerlendirilmektedir.
Protection Statuses Provided Under International and Turkish Law Against Gender-Based Persecution
Ceren Karagözoğlu, Rumeysa PartalcıThe 1951 Geneva Convention Relating to the Status of Refugees constitutes a fundamental binding source within the international protection regime under international law. This qualification makes the Convention the primary legal framework for addressing gender-based persecution, and the refugee status remains the main instrument offering international protection to individuals subjected to such persecution. However, the fact that the criteria stipulated in the Geneva Convention of 1951 have not been expanded normatively and that human rights conventions guaranteeing fundamental rights and freedoms do not specifically establish a distinct protection status has led to the creation of complementary/ subsidiary protection statuses. These are particularly relevant for individuals who fall outside the formal definition of a refugee yet still face gender-based persecution. This study focuses on the protection statuses provided under international law and Turkish law in cases of gender-based persecution. It specifically evaluates the 1951 Geneva Convention, the 1967 Protocol Relating to the Status of Refugees, UNHCR practises guiding the implementation of these instruments, and the European Union Qualification Directive (2011/95/EU), which includes complementary protection. These legal frameworks are assessed in the context of Turkish legislation, providing a comprehensive overview of the protection regimes in place.
The Convention Relating to the Status of Refugees, which contains concrete provisions for persons in need of international protection, defines refugee status and sets the basic standards for obtaining this status, is the first source to be used against gender-based persecution. Although the provision of the Convention limits the sources of fear of persecution to certain grounds and gender, which constitutes one of the largest groups in the face of such persecution, is not listed among the grounds that may give rise to the fear of persecution, it is widely accepted that gender has a determining effect on the form and causes of treatment constituting persecution, and in this context, it is foreseen that the correct interpretation of the article will not exclude the concept of gender. Therefore, the refugee status remains the main instrument offering international protection to individuals against gender-based persecution. However, the fact that the criteria stipulated in the Geneva Convention of 1951 have not been expanded on a normative basis and that human rights treaties guaranteeing the fundamental rights and freedoms of individuals do not ultimately provide for a special protection status necessitates the existence of statuses called complementary protection/subsidiary protection, especially for individuals who fall outside the definition of refugee in the face of gender-based persecution. The so-called complementary protection/subsidiary protection statuses extend the protection granted to the individual by both stretching the concept of persecution/(reducing it to the level of serious harm) and not limiting it to certain grounds. However, it should be noted that the emergence of complementary/ subsidiary forms of protection as a result of the need to offer protection to persons who are not refugees leads to the conclusion that the refugee status acts as a threshold in the assessment of this protection. If, because of assessment, the person has not been able to obtain refugee status, it is accepted that only then should an assessment be made in terms of complementary/subsidiary protection. This acceptance is not only a consequence of the nature of the complementary/subsidiary protection status but also a requirement of the state party to the Geneva Convention of 1951 to fulfil its international obligations. This is because complementary/subsidiary protection statuses are largely based on national legal regulations. The existence of complementary/ subsidiary protection statuses on a national basis not only weakens the protection provided to the individual but also causes the boundaries of the envisaged protection to diverge, thus making state practises in this direction less uniform. This situation raises the need to regulate complementary/subsidiary protection statuses by an international convention. This is because an international convention granting protection status to an individual significantly affects/expands the scope of the rights and freedoms granted to these individuals and ultimately offers a stronger protection as it puts states under an international obligation in the light of the independent nature of human rights treaties from the principle of reciprocity. At this point, the Istanbul Convention comes to the 2 fore in terms of emphasising the protection offered against gender-based persecution.
The Istanbul Convention implicitly extends the protection provided by the 1951 Geneva Convention and complements the protection provided by the 1951 Geneva Convention by facilitating access to international status despite gender-based persecution. The Istanbul Convention gives a normative character to the complementary protection against gender-based persecution on an international basis and serves to transform protection into an international obligation for states. As a party to the Geneva Convention of 1951, Turkey’s legislation on foreigners’ law is regulated in line with the provisions of the Convention. The refugee status under Article 61 of the Law on Foreigners and International Protection (No. 6458) is defined within the scope of the Geneva Convention of 1951. The international protection statuses regulated in Article 62 (conditional refugee status) and Article 63 (subsidiary protection status) are based entirely on Turkey’s domestic legislation and are not covered by the Convention. Under Article 63, before a person can be examined for subsidiary protection status, an examination under Articles 61 and 62 must have been conducted. However, in practise, applications are evaluated without following this order. This is a clear violation of the Law on Foreigners and International Protection (No. 6458) and the Geneva Convention of 1951. Asylum applications must first be examined in terms of (conditional) refugee status. As a result of the lack of detailed explanations of the concepts of “serious harm” and “persecution” in the Law on Foreigners and International Protection (No. 6458), the issue of who will be granted subsidiary protection status in practise and under what standards and principles becomes unclear. Further clarification of the content of these concepts in the law would contribute to the situation.
The study also examines the cases of individuals fleeing the armed conflict in Ukraine, especially those who have experienced sexual violence. These individuals, particularly women, may qualify for asylum under the Geneva Convention on the grounds of membership in a particular social group. However, one of the critical challenges in the asylum process is the difficulty refugees face in articulating their experiences during interviews. This can result in their inability to demonstrate the fear of persecution necessary to obtain refugee status. The study emphasises that fear should be assessed objectively, recognising that even if an individual’s fear appears less intense than average, it does not negate the existence of persecution or a credible risk thereof. Decisions on whether gender-based violence falls within one of the five grounds under the Geneva Convention of 1951 are examined in relation to applications based on domestic violence, sexual assault, sexual orientation, certain surgical interventions on genitalia and forced marriage. It is concluded that in these applications based on sexual violence, whether the applicants have been persecuted on account of their membership of a particular social group should be addressed as a matter of priority. Cases where people seek asylum in Turkey not individually but through a mass migration movement are discussed separately in the study. In this regard, there are persons who should be granted temporary protection status in accordance with the Temporary Protection Regulation. Under Provisional Article 1 of the Temporary Protection Regulation, temporary protection status is granted to persons who came to Turkey “asof 28.04.2011 due to the events that occurred in the Syrian Arab Republic”. Therefore, persons covered by the Regulation cannot be included in the individual application process, even if they are victims of sexual violence. However, in our opinion, it is right to criticise the fact that the Regulation, rather than the law, stipulates this issue.
