The term “persecution” is defined in the Rome Statute of the International Criminal Court as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” This general meaning may suggest that legal drafters preferred to maintain a flexible concept that might be applied to more-specific ill-treatments that might arise in future circumstances. Therefore, the concept of “persecution” must be interpreted as a flexible, evolutionary concept.
Generally, persecution includes, but is not restricted to threats to, or acts against one’s life, limb, or liberty. It is undisputed that severe ill-treatment, including torture, rape and genital mutilation, as well as arbitrary detention, amount to persecution.
For some theorists, persecution includes sequestering a person under constant or frequent surveillance in places such as the person’s home, school, workplace or other places that the person frequents and where surveillance is expected to cause fear or dread in a reasonable and prudent person. Hathaway and Foster consider persecution to be “the sustained or systemic violation of basic human rights demonstrative of a failure of state protection.”
In the global context, persecution involves human rightsabuses or other serious harm, often, but not always, with a systematic or repetitive element. For refugee-status determination, for example, the Geneva Refugee Convention and Protocol provides that a refugee is an asylum-seeking person with “a well-founded fear of persecution” and “is outside the country of his nationality and is unable or, owing to such a fear or for reasons other than personal convenience, is unwilling to avail himself of the protection of that country.” Such determination requires a causal link between the reasons for persecution, namely race, religion, nationality, political opinion or membership of a particular social group, and the acts of persecution or the absence of protection against such acts. Persecution based on any other ground would not be considered.
Courts have cautioned that persecution is an extreme concept that does not include every sort of treatment that society regards as offensive. Discrimination on the basis of race or religion, as morally reprehensible as it may be, does not necessarily amount to “persecution,” thereby distinguishing persecution from “mere discrimination or harassment.” The risk of being persecuted may sometimes arise in circumstances where two or more Convention grounds combine to affect the same person, in which case the combination of such grounds defines the causal connection to the well-founded fear of being persecuted.
The conditions of persecution are described as a type of harm that is:
- Inflicted by a human persecutor – not by natural catastrophes or poverty alone;
- Unjust – persecution according to the Convention is by definition discriminatory, as we have seen;
- “Cruel,” or “serious”; and
- Persistent, in the sense that it does not relate to episodic harm, but rather to a sustained or systemic threat of serious and unjust harm.
Acts of persecution can entail:
- Serious physical harm, loss of freedom, and other serious violations of basic human rights as defined by international human rights instruments;
- Discriminatory treatment that leads to consequences of a substantially prejudicial nature (for instance, serious restriction on the applicant’s right to earn his or her living, to practice his or her religion, to access normally available education facilities); and
- A combination of numerous harms none of which alone constitutes persecution but which, when considered in the context of a general atmosphere in the applicant’s country, produces a cumulative effect which creates a well-founded fear of persecution.
Some scholars, however, have claimed that the best way to unify and inject coherency, consistency and certainty in Refugee Law is to make discrimination the sole criterion of persecution.