Protected Groups in Refugee Law and International Law

Abstract

The 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) defines ‘persecution’ based on five enumerated grounds: race, religion, nationality, membership of a particular social group, and political opinion. This list of protected groups has not changed in the nearly 70 years since its inception, although the political and social context that gave rise to the Refugee Convention has changed. This article examines how ‘membership in a particular social group’ (“MPSG”) has been interpreted, then surveys international human rights law, transnational criminal law, international humanitarian law, and international criminal law instruments to determine whether MPSG can encompass the broader protections afforded under other international law regimes. It concludes that the enumerated grounds are largely consistent with other instruments and protects, or at least has the potential to protect, many of the other categories through MPSG. However, as this ground is subject to domestic judicial interpretation and various analytical approaches taken in different countries, protection could be enhanced by amending the Refugee Convention to explicitly include additional protected groups from these other areas of international law, specifically international human rights law and international criminal law.

1. Introduction

The 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) defines ‘persecution’ based on five enumerated grounds: race, religion, nationality, membership of a particular social group, or political opinion (United Nations 1951, art 1(A)(2)). This list of protected groups has not changed since its inception, although the political and social context that gave rise to the Refugee Convention has seen dramatic changes since that time. Accordingly, it is appropriate to critically examine the ostensibly narrow scope of protected groups in the Refugee Convention and assess whether there are other international law sources that could provide assistance on a more inclusive approach to protection. This article attempts to carry out such an examination by first looking at how ‘membership of a particular social group’ has been interpreted to protect additional categories. It then conducts a survey of international instruments in the areas of international human rights law, transnational criminal law, international humanitarian law, and international criminal law to assess what groups are protected under these regimes. Finally, it compares these groups to determine whether ‘membership of a particular social group’ can encompass the broader protections that may be afforded under other international law regimes.

The survey of instruments in different international law regimes only looks at the text of the provisions enumerating protected groups, not the reasons why the drafters chose the specific language of the provisions; these reasons may vary widely and are outside the scope of this article. For the same reason, there is no discussion of the national implementation of the treaties in question except when discussing refugee law and one aspect of international criminal law, namely protected groups in the crime of genocide, where a brief discussion of national implementation does assist in the purpose of this article as this national implementation has a direct bearing on the interpretation of the international notion of that crime.

2. Protected Groups under the Refugee Convention

The Refugee Convention is the foundational international instrument protecting refugees from persecution. At its core, the principle of non-refoulement holds that refugees should not be returned to a country where their life or freedom is threatened because of their race, religion, nationality, membership in a particular social group, or political opinion (United Nations 1951, art 33(1)). This ostensibly narrow list may not, at first glance, reflect the contemporary challenges modern refugees face. However, looking closer at membership of a particular social group (“MPSG”), this ground may be flexible enough to incorporate broader protections and evolve with modern refugee claims.

2.1. Refugee Law and Protected Groups—Social Group

At first glance, the Refugee Convention provides protection limited to groups facing persecution on five enumerated grounds. The first four grounds are relatively straightforward, while the fifth ground, MPSG, has been described as the “ground with the least clarity” (UNHCR 2002, para. 1) and subject to the most judicial scrutiny (Hathaway and Foster 2014, p. 424; Foster 2012, p. 2). However, it is this relatively broad scope that has the greatest flexibility to evolve in response to contemporary challenges that refugees face (Foster 2012, p. 2; UNHCR 2002, para. 1).

The Refugee Convention does not define MPSG.1 As such, this ground has largely developed through domestic jurisprudence. Two dominant interpretive approaches have emerged over time—the protected characteristics approach and the social perception approach. Both are rooted in international rules of treaty interpretation,2 with the protected characteristics approach considering the context, object and purpose of the Refugee Convention, and the social perception approach relying on the ordinary meaning of the text (Foster 2012, p. 12).

The protected characteristics approach focuses on the innate or unchangeable characteristic of the particular social group (“PSG”). The United States in Re Acosta, 19 I&N, Dec 211 (BIA 1986) (“Acosta”) first articulated this approach when the Board of Immigration Appeals (BIA) recognized the other protected grounds described persecution based on an ‘immutable’ characteristic (Hathaway and Foster 2014, p. 426).3 The Supreme Court of Canada in Canada Attorney General) v Ward, [1993] 2 SCR 689 at 739 (“Ward”) adopted this approach and identified three types of PSG:

• Groups defined by an innate or unchangeable characteristic;
• Groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
• Groups associated by a former voluntary status, unalterable due to its historical performance.

This principled interpretation recognizes that MPSG should evolve in line with internationally recognized human rights and principles of non-discrimination (Hathaway and Foster 2014, p. 427).4 A similar approach is followed in countries such as New Zealand, South Africa, and the United Kingdom (Foster 2012, p. 8; Hathaway and Foster 2014, p. 427).5

The social perception approach focuses on how the group is set apart from society. This approach was first developed by Australia in A v Minister for Immigration & Ethnic Affairs, [1997] HCA 4, (1997) 190 CLR 225 at 11 AustLII, where the High Court looked at the meaning of ‘particular,’ ‘social,’ and ‘group’ to define PSG as “a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large” (Foster 2012, p. 9). In Applicant S v Minister for Immigration and Multicultural Affairs, [2004] HCA 25 at para. 36, 217 CLR 387, the Australian High Court identified three factors that must be met:

First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.

6

France also follows the social perception approach, though it differs slightly in its interpretation. In Ourbih, Conseil d’Etat SSR, Dec 171858, 23 June 1997, the Conseil d’Etat set out two criteria to define a particular social group: “the existence of characteristics common to all and which define the group in the eyes of the authorities in the country and of society in general” (Foster 2012, p. 11; Hathaway and Foster 2014, p. 429; Aleinikoff 2003, pp. 281–82). These criteria were applied in the context of sexual orientation, requiring the claim to be manifested in external behaviour (Foster 2012, p. 11). Goodwin-Gill and McAdam find that a group may be distinguished from society without sharing an immutable characteristic; therefore, it is necessary to look at a range of factors that combine to create a risk given the claimant’s personal circumstances, time, and place (Goodwin-Gill and McAdam 2007, pp. 84–85). They suggest it is more helpful to look at the group “within” society, as opposed to the group as “set apart” from society (Goodwin-Gill and McAdam 2007, p. 85).

Each approach has its own advantages and disadvantages. The protected characteristics approach comports with principles of treaty interpretation looking at the object and purpose of the Refugee Convention, provides a principled framework for interpretation, and allows for a contemporary interpretation consistent with evolving human rights principles (Hathaway and Foster 2014, p. 436; Council of Europe 2004a). However, it is criticized as overly complicated and may not offer as much protection (Foster 2012, p. 13). The social perception approach is straightforward and, presumably, allows for broader protection (Foster 2012, p. 13). However, this approach relies on a textual analysis yet there is no “ordinary meaning” of the term ‘PSG’; resorting to an individual interpretation of the words can lead to an artificial definition detached from the Refugee Convention’s intention (Hathaway and Foster 2014, p. 432). Its inherent ambiguities have led to decisions based on subjective preferences of a given decision-making panel, which may artificially narrow claims (Hathaway and Foster 2014, pp. 432–36).

In 2002, the United Nations High Commissioner for Refugees (“UNHCR”) issued its “Guidelines on International Protection on Membership of a Particular Social Group” (“Guidelines”) to provide guidance to states interpreting and applying this ground. The Guidelines emphasize that MPSG should be interpreted in a manner that evolves with changing societies and international human rights norms (UNHCR 2002, para. 2–3). To prevent protection gaps, the Guidelines put forward a comprehensive definition that incorporates the protected characteristics and social perception approach:

[A] particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.

(UNHCR 2002, para. 11)

The UNHCR’s comprehensive definition has led to its misapplication as a cumulative test in the United States and Europe. The United States, while initially following a protected characteristics approach in Acosta, has taken a cumulative approach in recent years. In 2006, the BIA relied on the UNHCR Guidelines to require social visibility as a mandatory element of the MPSG analysis (Hathaway and Foster 2014, p. 430; Marouf 2019, p. 489). In 2014, the BIA clarified that social visibility meant social distinction and added an additional requirement of “particularity” (Marouf 2019, pp. 489–92; Owens 2018, p. 1261), creating a tripartite test requiring a protected characteristic, social distinction, and particularity (Grant 2017, p. 917).7

The European Union’s Qualification Directive has similarly been interpreted as requiring a cumulative test (EASO 2016, p. 49). The Qualification Directive (EU 2011) defines MPSG in Article 10(1)(d):

(d) a group shall be considered to form a particular social group where in particular:

— members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and

— that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.

The Qualification Directive has been criticized as distorting the UNHCR’s approach by proposing a more stringent test that may lead to protection gaps (Hathaway and Foster 2014, p. 432). However, there is no international consensus on which approach is the correct one. The UNHCR’s comprehensive definition recognizes both approaches as valid, without advocating for one approach over the other. While there may not be a need to move towards a single standard, consistency is desirable to prevent protection gaps between countries.

Despite these different interpretive approaches, state practice demonstrates consensus on several aspects of this ground. First, the PSG cannot be defined exclusively by a shared fear of persecution, though such fear may be a relevant factor to determine the group’s visibility (UNHCR 2002, para. 14; Hathaway and Foster 2014, pp. 424–25).8 Second, the group does not need to be cohesive (UNHCR 2002, para. 15);9 there is no need to establish a voluntary, associated relationship with the PSG (UNHCR 2002, para. 15; Hathaway and Foster 2014, pp. 425–26; Foster 2012, p. 5). Third, not all members of the group need to be at risk of persecution; a person is not precluded from making a claim if some members of the group are not persecuted where, for example, they hide their shared characteristic or are unknown to or cooperate with the persecutor (UNHCR 2002, para. 17). Fourth, the size of the group is irrelevant (UNHCR 2002, para. 18; Hathaway and Foster 2014, p. 425; Foster 2012, p. 5); the group may be as large as ‘women’ or as small as a family (Hathaway and Foster 2014, p. 425). While there is some degree of discomfort with the large size of some groups because of floodgate concerns, the other Convention grounds similarly may encompass large groups and, therefore, MPSG should not be exceptionally limited (Hathaway and Foster 2014, p. 425). Finally, absent special circumstances, mere membership is not enough to establish MPSG (UNHCR 2002, para. 16; UNHCR 2019, para. 79).

2.2. Recognized Categories of Particular Social Group

Decision-makers have recognized many types of PSGs when addressing specific refugee claims, which can be broadly organized into eight categories: gender, sexual orientation, family, age, disability, economic or social class, voluntary association, and former status.10 These categories illustrate the extent to which States have been willing (or not) to recognize certain types of PSGs, as not all will fit neatly into a single category and must be specific to the claimant’s circumstances. Further, these categories can, and often do, overlap with each other and with other protected grounds in the Refugee Convention (UNHCR 2002, para. 4; UNHCR 2019, para. 77).

2.2.1. Gender

Most states recognize, to varying degrees, that gender can constitute a PSG. Such claims often focus on ‘women’ or a subset thereof, though similar claims can arise for ‘men’ as a protected group (Foster 2012, p. 40). Decision-makers in North America and Europe have recognized a variety of gender-based claims as constituting PSGs, including forced marriage, domestic violence, abortion, and trafficking (Schoenholtz 2015, p. 110). Gender-based claims also include gender identity.11

The protected characteristics approach easily recognizes gender as an innate characteristic (Hathaway and Foster 2014, p. 437; IRB 2018, s. 4.5).12 While the Qualification Directive requires only “due consideration” be given to gender-related aspects, many European countries recognize gender as a PSG.13 Several countries also include gender in their domestic legislation or guidelines on refugee protection.14 New Zealand has gone as far as recognizing ‘women’ as a PSG in several decisions.15

The social perception approach has had more difficulty in accepting ‘women’ as a social group set apart from society (Foster 2012, p. 46), often leading to inconsistent decisions. Australian decision-makers have rejected gender-based claims such as “young single women” as not distinct from society at large or the group size, such as “Tanzanian women,” as overly broad (Foster 2012, p. 46), while recognizing “single women in India,” “married women in Tanzania,” and “young Somali women” as constituting PSGs (AAT 2019, pp. 34–35). The United States is inconsistent in its approach, with some courts accepting women as a PSG and others rejecting it under the social visibility test (Foster 2012, p. 47; Marouf 2019, p. 514). In Germany and France, decision-makers often focus on whether a narrower subset of women have transgressed societal norms in a way that makes that group visible to society (Foster 2012, pp. 47–48). These decisions are problematic for future claimants because the decision-maker’s precise reasoning and the evidential basis are often unclear, making it challenging for claimants to rely on the jurisprudence for guidance (Foster 2012, p. 48).

The major challenge for claimants making a gender-based claim is the artificial limiting of this category. Decision-makers and advocates are reluctant to recognize ‘women’ as a PSG, preferring to narrow the category based on additional criteria.16 While refining the group can avoid perceived floodgate concerns, it often leads to complex categories that import unnecessary elements into the description, such as the nature of the harm (Hathaway and Foster 2014, p. 440; Foster 2012, pp. 44–45). For example, in Re Kasinga, 21 I&N Dec 357 at 365 (BIA 1996), an important decision on analyzing gender-based claims (Vogel 2019, pp. 361–64), the PSG was described as “young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice.”17 In Ayala Sosa and Others v Canada (Minister of Citizenship and Immigration), 2014 FC 428, para. 26–29, the Federal Court upheld the Immigration Board of Canada’s finding that “young, impoverished and uneducated teenagers living in small, gang-riddled communities who refuse to be recruited because of a strongly held political opinion that disagrees with Mara activities” do not constitute a PSG. The Board found that if the characteristics that were not immutable were removed (youth, poverty, and education), the applicant’s claim was based on being targeted.18 This narrow approach highlights two problems. First, the group may be refined to the point it is solely based on persecution, which runs contrary to the principle that the ground cannot be defined only by the risk of persecution (Hathaway and Foster 2014, p. 411; Foster 2012, p. 45). Second, overly narrow group definitions lead to continuous litigation on the specific category, rather than acknowledging ‘women’ (or ‘men’) as a PSG (Hathaway and Foster 442).

While ‘women’ as a category should, theoretically, suffice because it is firmly established that group size does not matter, a subset of women can be helpful if appropriately delineated. In more recent cases, the common approach has been to define the group as “women of country X” (Hathaway and Foster 2014, p. 441). The United Kingdom House of Lords in Islam v Secretary of State for the Home Department Immigration Appeal Tribunal and Another, Ex Parte Shah, [1999] UKHL 20, 2 All ER 545, 9–10 (1999) BAILII (“Shah”) recognized that “women in Pakistan” as a social group “is neither novel nor heterodox. It is simply a logical application of the seminal reasoning in Acosta’s case” under the protected characteristics approach; just because some members of the group may avoid persecution does not mean that social group does not exist.19

2.2.2. Sexual Orientation

Sexual orientation and similarly-situated claims are well-recognized as a PSG in many jurisdictions20 and have been recognized since at least the 1990s (Lewis and Shuman 2016, p. 1).21 In some countries, protection for persons based on sexual orientation is incorporated in domestic legislation as an example of a protected status or a standalone ground.22 The Qualification Directive recognizes that sexual orientation may constitute a PSG, depending on country-specific circumstances.23

The protected characteristics approach has long-recognized claims based on an individual’s actual or imputed sexuality (Hathaway and Foster 442). Canada was one of the first countries to recognize, under the immutability analysis, homosexuality as a PSG;24 sexual orientation constitutes a significant proportion of contemporary Canadian refugee claims and are more likely than not to succeed (Rehaag 2017, p. 286). While the jurisprudence largely focuses on homosexuality,25 decision-makers have resisted a narrow interpretation of sexuality to recognize a broad spectrum of sexual identity, including “lesbian, bisexual, intersex, and transgender applicants” as members of a PSG (Hathaway and Foster 2014, p. 444; Foster 2012, p. 51). However, the success rate for claimants may vary across subsets of sexual minorities (Rehaag 2017, p. 286; Lewis and Shuman 2016, p. 2). Further, decision-makers have accepted ‘homosexuals in country X’ as a PSG without relying on overly technical definitions that arise in other areas, such as gender-based claims (Foster 2012, p. 50).

Sexual orientation is, to a degree, revealed by an individual’s behaviour. While some decision-makers oppose the view that ‘discretion’ is a relevant consideration (Foster 2012, p. 52; Lewis and Shuman 2016, p. 2), others—particularly those following a social perception approach—suggest that a claimant may be denied refugee protection where they may avoid persecution in their home country by hiding their sexual orientation.26 However, the UNHCR (2008, para. 32) rejects that individuals should be required to conceal their sexual orientation. The Court of Justice of the European Union (CJEU) in C-199/12, c-200/12, C201/12 X, Y Z, 4th Chamber (CJEU 2013) also rejects this view, holding that individuals should not be forced to hide their sexual orientation.

Despite their prominence in the case law, claims based on sexual orientation are particularly challenging because the refugee determination process reduces sexual identity to a “simplistic notion” that requires an individual to act in a certain way (Millbank 2009, pp. 15–16) and prove such acts to the decision-maker.27 Claimants often face challenges related to credibility, Western notions and other stereotypes of sexual identity, and that their fear of persecution is sufficiently serious28 (Rehaag 2017, pp. 263–64; LaViolette 2015, pp. 9–15; Lewis and Shuman 2016, p. 3).29

2.2.3. Family

The degree to which family is recognized as a PSG depends on the court’s interpretative approach. Family has long been recognized as a protected status (Schoenholtz 2015, p. 114) and is “[o]ne of the most visible examples of a particular social group” (UNHCR 2011, p. 87). This category is easily recognized under the protected characteristics approach, as kinship ties are an immutable characteristic (Hathaway and Foster 2014, p. 446; Foster 2012, p. 54). The case law is not as straightforward in countries that apply the social perception test (Foster 2012, p. 55), though several European countries recognize family may constitute a PSG.30 Family as a PSG has faced significant challenges in the United States. While kinship ties were initially recognized in Acosta as an obvious example of a protected group, decision-makers have since found that not every family will meet the social visibility requirement (Foster 2012, p. 55; Owens 2018; Marouf 2019, pp. 507–9). In July 2019, the Attorney General overturned the BIA’s decision in Matter of L-E-A, 27 I&N Dec 581 (AG 2019), concluding at page 581 of his opinion that while clans may constitute a PSG, “most nuclear families are not inherently socially distinct and therefore do not qualify as ‘particular social groups.’” The Attorney General goes on to say—at page 595—that his opinion does not bar family-based claims if the claimant can show the “immediate family carries greater societal import,” making it practically more difficult for a claimant to succeed on this ground.

What constitutes ‘family’ may vary depending on the cultural context in which the risk emerged, extending beyond the nuclear family and blood relations (Hathaway and Foster 2014, p. 446). An individual may be at risk of persecution where their family is targeted because of the political, social, or economic activities of a family member, or a relative’s sexual identity (Hathaway and Foster 2012, p. 447). Claims where a family member is targeted for revenge or retribution, unconnected from a Convention ground, are more controversial (Hathaway and Foster 2014, p. 447; Foster 2012, p. 56). In several jurisdictions, the claimant will not succeed unless the primary target is at risk based on a Convention ground;31 this may include claims based on political opinion, but exclude claims arising from criminal matters such as gang affiliation (see Section 2.2.8 for more on gang affiliation). Decision-makers in Australia, Canada, and Germany, and the United States have rejected claims based on family ties where the fear of persecution is not sufficiently tied to a Convention ground for the primary claimant.32 However, Hathaway and Foster (2014, pp. 448–49) argue that the individual is at risk based on their family status, not the activities of the targeted family member, and to require a claimant to prove the primary target is also being targeted for a Convention ground would impose a stricter criteria on the claimant than is required of other grounds.

An individual may also be at risk from a family member, such as abusive relationships. PSGs based on domestic violence are especially challenging and have been selectively enforced (Schoenholtz 2015, pp. 111–12).33 Domestic violence-based claims may fit within gender-based claims, but decision-makers often treat them differently and have been slow to recognize them as a PSG (Boyd 2018, p. 3). In Canada, while decision-makers tend to define complex groups (Schoenholtz 2015, p. 112), the Federal Court in AB v Canada (Citizenship and Immigration), 2018 FC 237 at para. 13 recently affirmed that “[i]t is now beyond dispute that gender-based domestic violence may give rise to a refugee claim.”34 Recently, the United States has seen a shift in its approach to domestic violence-based claims, from the BIA’s 2014 landmark decision in Matter of A-R-C-G-, 26 I&N Dec 388 (BIA 2014), recognizing that women fleeing domestic violence can constitute a PSG to the Attorney General’s 2018 decision to overturn Matter of A-B-, 27 I&N Dec 316 (AG 2018) on the basis that, inter alia, domestic violence will generally not qualify for asylum.35 Following this decision, the UNHCR submitted amicus curie briefs asserting that Matter of A-B- was interpreted wrongly and that a person at risk of domestic violence may constitute a PSG under the protected characteristics approach where their relationship status is immutable because of external factors (religion, culture, legal, etc.) or the social perception test based on cultural stigmas and male dominance.36

2.2.4. Age

Age may be recognized as a protected status under the protected characteristics approach because it is an immutable characteristic. While age has been long-recognized in some countries as capable of constituting a PSG,37 this category is becoming more prominent with the rise in refugee claims by unaccompanied minors and often overlaps with other grounds.38 This ground received some pushback in the United States based on the logic that age changes over time;39 however, the UNHCR’s explanation that age is immutable at the relevant time highlights that claims should not be rejected on the basis that age changes (Hathaway and Foster 2014, p. 450; Foster 2012, p. 58).

Age is a particularly relevant ground for young persons, though it can apply to persons in any age category.40 Decision-makers tend to refer to age categories such as “children” or “youth” that capture the individual’s vulnerability, rather than a precise age (Hathaway and Foster 2014, p. 449; Schoenholtz 2015, p. 115). However, inconsistent decisions highlight the same challenge faced in other areas of balancing between a broad definition while still being sufficiently descriptive.41

2.2.5. Disability

An individual may be a protected person where persecution is based on a disability. However, there is little case law on this (Hathaway and Foster 2014, p. 451; Foster 2012, p. 61) and those who do argue disability as a PSG have faced difficulties proving that disability-based discrimination amounts to persecution (Conte 2016, pp. 329–30, 335–36) or that their disability is perceived as setting them apart from society (AAT 2019, p. 33). The Convention on the Rights of Persons with Disabilities (United Nations 2006b) defines ‘disability’ broadly to encompass long-term physical and intellectual disabilities and illnesses.42 Decision-makers have interpreted this PSG to include those with impaired vision and hearing, HIV/AIDS, autism, albinism, and mental illness (Foster 2012, p. 62, Hathaway and Foster 2014, p. 452; Crock et al. 2013, pp. 751–53).

A ‘long-term’ disability would be considered immutable under the protected characteristics approach (Crock et al. 2013, p. 751) and disability-based claims have been recognized in Canada.43 Several jurisdictions that apply the social visibility test have also recognized disability-based claims, such as France and Australia (Foster 2012, p. 83). However, Europe’s Qualification Directive poses a challenge for persons whose disability is immutable but not visible (Conte 2016, p. 341). The United States has also recognized disability as constituting a PSG in several Circuit courts (Kanter and Rosenthal 2018). South Africa has gone as far as including persons with disabilities as a social group in its domestic legislation protecting refugees, though this is an anomaly (Crock et al. 2013, p. 750).

2.2.6. Economic or Social Class

Economic or social class may constitute a PSG based on current or past status (Hathaway and Foster 2014, p. 453). Social class is especially relevant in countries that are “highly stratified by reference to clans, tribes, or castes” (Hathaway and Foster 2014, p. 453) or strict cultural norms44 and has been recognized under the protected characteristics and social perception approaches.45 Protection based on economic class is more inconsistent, with claims manifesting from both high and low status. Class-based groups based on economic status, such as professionals in Cambodia, have historically been persecuted.46

The Supreme Court of Canada in Ward recognized others have been persecuted for their past status imposed on them by the agent of persecution (IRB 2018, s. 4.5), though Canadian courts have generally been unwilling to extend protection where a person fears criminality based on their former status.47 In the United States and Australia, there is some support for finding wealthy persons targeted by criminal organizations as constituting a PSG.48 Additionally, individuals in situations of poverty may constitute a class where they cannot practically disassociate from this status, such as the “Haitian poor” (Hathaway and Foster 2014, p. 452; Foster 2012, p. 68).49 The UNHCR recognizes members’ economic activities may be at the root of persecution where they are an obstacle to government policy (UNHCR 2019, para. 78). Hathaway and Foster (2014, p. 454) find that developments in refugee protection recognizing economic classes mirror international human rights law’s growing recognition that economic class is a protected status.

2.2.7. Voluntary Associations

Voluntary associations are controversial as a PSG because a person may disassociate from the group. However, as the second category of PSG in Ward indicates, such association may be so fundamental to a person’s identity that they should not be required to change it. The jurisprudence differs depending on the type of association: human rights-related groups such as trade unions and student organizations tend to be recognized as a PSG, while groups based on occupation or wealth are more controversial with inconsistent results.50 The United States in Acosta rejected taxi drivers as a PSG because individuals do not have “a right to work in the job of his choice” (Foster 2012, p. 72). Canada,51 New Zealand, and the United Kingdom have also rejected occupation-based claims following this line of reasoning (Hathaway and Foster 2014, p. 456). However, changing one’s occupation may be unrealistic for some, and the freedom to choose (or not be unfairly deprived of) one’s work is an internationally protected human right (United Nations 1966b, art 6(1); Foster 2012, pp. 71–73). Occupation may also significantly overlap with other grounds, such as political opinion in the context of government employees, members of the military, or police officers (Foster 2012, p. 71).

Group membership based on wealth is similarly inconsistent. While some states accept wealth under the social perception approach, states that follow the protected characteristics approach have typically rejected such claims on the basis that there are no protected private property rights under international law and a person can easily disassociate from such property (Hathaway and Foster 2014, p. 458). Consequently, Hathaway and Foster (2014, p. 458) suggest wealth may not be an appropriate category for refugee protection. Foster (2012, p. 70) also notes that few claims turn on the question of wealth as the decision-maker often rejects the claim “on the basis of a lack of nexus, rather than on the discrete issue of PSG analysis.” For example, Canadian decision-makers often reject claims linked to a generalized risk of violence due to (perceived) wealth bearing no nexus to a Convention ground.52 However, to the extent that wealth overlaps with economic status, protection may be desirable.

2.2.8. Former Status

Former status or association is included as a PSG because a person cannot change his or her history or past experience (Hathaway and Foster 2014, pp. 458–59; UNHCR 2011, p. 87). This category can include former trafficking victims, child soldiers, civilian witnesses, employees, etc. (Hathaway and Foster 2014, p. 459; Foster 2012, pp. 64–65; Maystre 2014, p. 984; Schoenholtz 2015, p. 116). For example, former status as a child soldier meets the social perception approach because society generally recognizes children as a group and may be recognized under the protected characteristics approach based on shared experience and age (Maystre 2014, p. 984).

This category can be challenging for individuals associated with groups that have a criminal aim: a current member may not be protected because criminality is not fundamental to a person’s identity nor is there a right to pursue criminal activity, while a former member cannot change that status (Hathaway and Foster 2014, p. 459). Decision-makers have sometimes distinguished between where a person joined the group voluntarily or forcibly, more readily recognizing protection for the latter (Hathaway and Foster 2014, p. 459; Foster 2012, p. 66). Further, claims based on former status are less likely to succeed in jurisdictions that follow the social perception approach (Foster 2012, p. 66). Even within jurisdictions, there are often divergent views. For example, three Circuit courts in the United States have found former gang membership can constitute a PSG, while two Circuit courts have rejected it (Quintero 2018, pp. 230–31).

Claims based on former or perceived gang membership are gradually becoming common. The UNHCR’s recent intervenor submission in Grace v Barr (Attorney General), Brief for the UNHCR as Amicus Curiae, No 19-5013 at 27–28 (DC Cir 2019) affirmed its position that persons at risk of gang violence and persons who have refused to join a gang may constitute a PSG. Individuals have asserted that the risk of gang-based violence for rejecting recruitment, refusing to pay extortion, or even being perceived as a gang member due to visible identifiers, can constitute a PSG (Schoenholtz 2015, pp. 116–17). These increasingly frequent claims are controversial and have been met with only limited success in Australia, Canada, the United Kingdom, and the United States (Schoenholtz 2015, pp. 117–18).

This category is problematic when decision-makers subjectively consider who is ‘worthy’ of protection based on past experiences (Foster 2012, p. 66). However, the Refugee Convention permits exclusion for reasons of serious criminality and where such protection creates a danger for the host state (United Nations 1951, art 1F(b), 33(2); Hathaway and Foster 2014, p. 460; Foster 2012, p. 66). A proper interpretation should not focus on the subject matter of the claim, but rather separate analyses of MPSG and reasons for exclusion (Hathaway and Foster 2014, p. 460; Foster 2012, p. 67).

2.3. Other Refugee Law Instruments

The Refugee Convention is the foundational, but not sole, refugee law instrument. Three regional instruments have extended the ‘refugee’ definition to enhance protection. The 1966 Bangkok Principles on Status and Treatment of Refugees (“Bangkok Principles”), a non-binding treaty adopted by the Asian-African Legal Consultative Organization, defines a refugee as a person who fears persecution on the grounds of “race, colour, religion, nationality, ethnic origin, gender, political opinion, or membership of a particular social group” (AALCO 1966, art 1). This adds three protected groups—colour, ethnic origin, and gender—to the five mirrored in the Refugee Convention. The Bangkok Principles further extends ‘refugee’ to include persons “who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order” is compelled to seek refuge (AALCO 1966, art 2). The 1969 Convention on the Specific Aspects of Refugee Problems in Africa adopts the same grounds of persecution as listed in the Refugee Convention, but extends protection on the same grounds as the Bangkok Principles.53 Lastly, the 1984 Cartagena Declaration on Refugees, a non-binding treaty with considerable moral authority in Latin America (Goodwin-Gill and McAdam 2007, p. 38), recommends the Refugee Convention definition include “persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.”54

3. Protected Groups in International Human Rights Law

Since general human rights law has had an important impact on issues associated with refugees, notably the prohibition against refoulement (the removal of a person to a country where this person might be subjected to persecution, torture or inhuman or cruel punishment or treatment),55 it is useful to set out some general principles of international human rights law (“IHLR”) and examine how far they shed light on the question of protected groups as part of the provisions dealing with non-discrimination in human rights treaties. This is of especial relevance as some recent jurisprudence in the United Kingdom has indicated that the Refugee Convention grounds are based on this concept of non-discrimination.56 While historically the concept of human rights had emerged in a fragmentary manner at the domestic level in primarily West European and North American states before the Second World War, the horrors of that war provided an impetus for the international community to begin devising a comprehensive international regime to protect basic human rights. The first steps in this direction were 1945 Charter of the United Nations (“UN Charter”) (United Nations 1945b) and the 1948 Universal Declaration for Human Rights (“UDHR”) (United Nations 1948b). The UN Charter mentions “international co-operation … in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion”57 as one of the main purposes of the United Nations while the UDHR, albeit non-binding, provides some more detail in thirty articles as to what these fundamental human rights entail. Interestingly, the UDHR does not refer to protected groups in the article dealing with refugees58 but mentions a large number of groups as examples in its general article dealing with fundamental rights, namely race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.59

3.1. International Human Rights Instruments

Following these initial steps to protect human rights in the sense of creating inalienable individual rights against the power of the state and the collective rights within that state,60 two universal (as in with global reach) general (as in covering a bundle of rights) human rights treaties were created on 16 December 1966: the International Covenant on Civil and Political Rights (“ICCPR”) (United Nations 1966a) and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) (United Nations 1966b). Both these treaties include articles prohibiting certain behaviour-based distinctions related to protected groups, which is the same iteration as set out in the UDHR61 or limited subsets of this general category.62

Some of the core rights found in these universal, general, and binding international instruments have been fleshed out and developed by the United Nations in treaties protecting either specific human rights or specific categories of persons. Within the first category of treaties, protecting specific human rights, the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965, which has protected groups based on race, colour, descent, or national or ethnic origin (United Nations 1966c, art 1(1)), should be mentioned as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 198463 and the Convention for the Protection of All Persons from Enforced Disappearance of 20 December 2006.64 Treaties to protect specific categories of persons include the Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979,65 the Convention on the Rights of the Child of 20 November 1989,66 the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families of 18 December 1990,67 and the Convention on the Rights of Persons with Disabilities of 13 December 2006.68

In addition to these universal conventions, which were negotiated under the United Nations auspices, the International Labour Organization (“ILO”), a specialized United Nations agency, has also been very active in the field of human rights. The ILO has adopted 189 conventions in the area of labour standards, of which eight are considered to be fundamental ones (ILO n.d.). Of these fundamental conventions, only three—the 1951 Equal Renumeration Convention, the 1957 Abolition of Forced Labour Convention, and the 1958 Convention concerning Discrimination in Respect of Employment and Occupation—refer to protected groups.69

3.2. Regional Human Rights Instruments

Not only have human rights come within the important purview of global institutions, most regions have undertaken steps to address the protection of individuals by introducing general human rights treaties or binding instruments for specific subject matters. This has happened in Africa, the Americas, the Middle East, Asia, and especially, Europe.

In Africa, the African Charter on Human and Peoples’ Rights (“ACHR,” also known as the “Banjul Charter”) was adopted on 26 June 198170 by the Organization of African Unity, known as the African Union, since 9 July 2002. Four other human rights instruments in place are the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa;71 the 1990 African Charter on the Rights and Welfare of the Child;72 the 2003 Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa;73 and the 2009 African Union Convention on the Protection and Assistance of Internally Displaced Persons in Africa (the “Kampala Convention”).74

In the Americas, the most important human rights treaty is the American Convention on Human Rights (“ACHR”) of 22 November 1969, adopted by the Organization of American States.75 There are six other human rights treaties in this region, two general76 and four dealing with specific categories of human rights, namely torture,77 forced disappearance,78 violence against women79 and discrimination against persons with disabilities.80

In the Middle East, the Council of the League of Arab States adopted the Arab Charter of Human Rights on 15 September 199481 while in Asia, the Association of Southeast Asian Nations (ASEAN) adopted a Human Rights Declaration on 19 November 2012.82

In Europe, the most important regional human rights treaty in terms of its impact on the practice of States is the European Convention of Human Rights (“ECHR”),83 which was adopted by the Council of Europe84 on 4 November 1950. Apart from this overarching treaty, the Council of Europe has been responsible for a large body of human rights protection resulting in the issuance of another 22 treaties in this field, of which nine are protocols to the ECHR dealing with procedural matters, while the other 13 deal with specific human rights issues (such as social rights, torture, minority protection, biomedicine, trafficking in human beings and migration) or with the protection of specific persons (such as the protection of children in general as well as protection of children against sexual exploitation and the protection of women against violence).85

3.3. Observations

An overview of the references to protected groups is captured in

Table 1. Treaties with reference to protected groups.

Scope	Total Treaties	Treaties with PGs	Treaties with Aspirational PGs	Articles with Aspirational PGs	Treaties with Substantive PGs	Articles with Substantive PGs
Global	19	12	9	10	2	4
Regional
Europe	24	10	8	8	-	-
Americas	7	3	3	3	1	3
Africa	5	4	3	3	1	2
Asia	3	1	1	1	-	-
Middle East	1	1	1	1	-	-
Total	59	31	25	26	4	9

. The vertical axis represents geographical distribution and the horizontal axis is arranged according to subject matter divided into six parts: the total number of human rights treaties examined; the number of treaties with a reference to protected groups (PGs); the number of treaties where the references to protected groups are of an aspirational nature in the sense that they are not connected to a specific obligation but appear either in the preamble or the general article(s) of the treaty; the number of articles with a reference to protected groups in aspirational articles; the number of treaties with references in articles with substantive obligations; and the number of articles with a reference to protected groups in substantive obligations.

The last two columns could benefit from more analysis. The four treaties with substantive articles in respect to protected groups are the ICCPR (dealing with equality before the law, public emergencies and children) and the Enforced Disappearance Convention (dealing with extradition) at the global level, and the ACHR (dealing with hate propaganda, deportation and suspension of guarantees) and the Convention Governing the Specific Aspects of Refugee Problems in Africa (dealing with refugees) at the regional level.

In terms of wording, of the nine articles which have a reference to protected groups in their substantive articles, the following language is used:

• ICCPR article 2 dealing with equality before the law: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status;
• ICCPR article 4 dealing with public emergencies: race, colour, sex, language, religion or social origin;
• ICCPR article 24 dealing with children: race, colour, sex, language, religion, national or social origin, property or birth;
• Enforced Disappearance Convention article 7 dealing with extradition: sex, race, religion, nationality, ethnic origin, political opinions or membership of a particular social group;
• ACHR article 13 dealing with hate propaganda: race, colour, religion, language, or national origin;
• ACHR article 22 dealing with deportation: race, nationality, religion, social status, or political opinions;
• ACHR article 27 dealing with suspension of guarantees: race, colour, sex, language, religion or social origin;
• Convention Governing the Specific Aspects of Refugee Problems in Africa article 1 defining “refugee” and article 4 dealing with non-discrimination: race, religion, nationality, membership of a particular social group or political opinion.

Looking at the protected groups mentioned in these articles, it is apparent that the articles in the global treaties have the broadest reach in the sense that none of their regional counterparts go beyond the number and type of protected groups mentioned in the global treaties. At the global level, the ICCPR article dealing with equality before the law has the most extensive reach in the three articles of that treaty whereas the Enforced Disappearance Convention, while more limited in its scope, has added the notion of “ethnic group” and refers to “particular social group” as opposed to “social origin”. Interestingly, this latter treaty, which is fairly recent, uses wording similar to the Refugee Convention but adds “sex” and “ethnic origin.” It should also be noted that the two conventions dealing with immigration issues, such as refugees (the Convention Governing the Specific Aspects of Refugee Problems in Africa) or deportation (the American Convention on Human Rights) use language that is either identical or very similar to the language in the Refugee Convention.

4. Protected Groups in Transnational Criminal Law

Transnational criminal law (TCL) covers the indirect suppression by international law through domestic criminal law of criminal activities that have actual or potential transboundary effects. TCL is enforced by prosecution in domestic courts, although the source of this enforcement lies in the obligations contained in multilateral suppression treaties (Currie and Rikhof 2013, pp. 10–20, 325–26).

There is a total of 33 TCL treaties, 14 of which refer to protected groups, again as with IHRL, as part of non-discriminatory provisions. This includes 19 international anti-terrorism conventions, seven of which have a reference to protected groups, usually couched in the article dealing with extradition with the following language: “a request for the extradition of an alleged offender, pursuant to this Convention, shall not be granted if the requested State Party has substantial grounds for believing that the request for extradition for an offence set forth in article 1 has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality, ethnic origin or political opinion.”86 A similar provision can also be found in the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (United Nations 1988b, art. 6(6)), the 2000 United Nations Convention against Transnational Organized Crime (United Nations 2000d, art. 14), and the 2003 United Nations Convention against Corruption (United Nations 2003, art. 15), while the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid refers to race, sex, language or religion in its preamble (United Nations 1973b).

There have also been three regional TCL treaties with references to protected groups, primarily in the area of the prevention of terrorism, namely in the Americas87 and Europe.88 Treaties dealing with the same subject matter in Africa, Asia and the Middle East do not have such a reference.89

5. Protected Groups in International Humanitarian Law

International humanitarian law (IHL) has regulated the conduct of states and armed groups during armed conflict since 1856. The most important IHL conventions are the four 1949 Geneva Conventions (ICRC (1949a, 1949b, 1949c, 1949d)) and their two 1977 Additional Protocols (ICRC (1977a, 1977b)). The Fourth Geneva Convention (ICRC 1949d), dealing with the protection of civilians, is the most extensive in terms of protected groups, which are mentioned on three occasions: article 3, dealing with fundamental guarantees in non-international armed conflicts;90 article 13, which is the general article with respect to the part of the Convention regulating the general protection of populations;91 and article 27, dealing with territories.92 As well, article 31 of the First Geneva Convention (ICRC 1949a), dealing with the return of sick and wounded members of the armed forces, also includes protected groups.93

Additional Protocol I (ICRC 1977a) contains two references to protected groups, namely in article 9, dealing with the general field of application of the part dealing with the wounded, sick and shipwrecked and 75 dealing with fundamental guarantees. Additional Protocol II (ICRC 1977b) has one reference, namely in article 2, dealing with the general field of application. All three have the same wording.94

6. Protected Groups in International Criminal Law

There is a conceptual difference between international criminal law (ICL) and TCL. The most accepted approach with respect to ICL is that it refers to conduct that is prohibited under international law itself, and it is international law that provides for individual liability. The enforcement of this area of law manifests itself either directly, when international institutions apply international criminal law, or indirectly, when states bring perpetrators before national courts through the application of extended forms of jurisdiction, primarily universal jurisdiction (Currie and Rikhof 2013, pp. 10–20, 325–26). The international crimes of aggression, genocide, war crimes, and crimes against humanity are the foremost examples of crimes that are enforced through both direct and indirect means.

The earliest ICL instruments are the 1945 Nuremberg Charter (United Nations 1945a), the 1946 Charter for the Tokyo Tribunals (United States 1946) and the 1948 Genocide Convention (United Nations 1948a), which recognized that certain groups, which had been victimized as a result of certain characteristics, should be given protection. The first two instruments indicated that the tribunals had jurisdiction to prosecute persons involved in persecution on political, racial or religious grounds (the latter only in the Nuremberg Charter) as a crime against humanity,95 while the Genocide Convention extended its reach to national, ethnical, racial or religious groups for the international crime of genocide (United Nations 1948a, art. 2).

ICL underwent a rapid growth in the nineties with the establishment of the International Criminal Tribunals for the former Yugoslavia (“ICTY”) in 1993 and Rwanda (“ICTR”) in 1994, which contained definitions of both genocide (United Nations 1993, art. 4(2); United Nations 1994b, art. 2) and crimes against humanity (United Nations 1993, art. 5(h); United Nations 1994b, art. 3(h)) with the same wording as the post-Second World War instruments. Two internationalized tribunals, the Special Court for Sierra Leone (“SCSL”) in 2002 and the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) in 2004,96 of which only the latter contained the crime of genocide in its founding document with again the same wording as in the Genocide Convention, expanded slightly on the list of protected groups in crimes against humanity in that the SCSL Statute added ethnic origin (United Nations 2002, art. 2(h)), while the ECCC document added ethnic and national origin (National Assembly of Cambodia 2001, arts. 4, 5). The most recent iteration of ICL97 is the 1998 Rome Statute of the International Criminal Court (“Rome Statute”), which still contains the same definition of genocide (United Nations 1998, art. 6) but has added a number of new categories to the protected groups in the crimes constituting a crime against humanity to now include: political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law (United Nations 1998, art. 7(1)(h)).

6.1. Persecution as a Crime Against Humanity and Protected Groups

Persecution is one of the 11 crimes recognized as a crime against humanity in the Rome Statute.98 In order for any of these crimes to amount to a crime against humanity it needs to be shown, as a minimum, that they were committed in a systematic and widespread fashion and that the targets of these crimes were part of civilian population (United Nations 1998, art. 7(1)).

The crime of persecution is defined by ICTY and ICTR jurisprudence as an act or omission that discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law and was carried out deliberately with the intention to discriminate on one of the grounds listed in their statutes.99 An act or omission is considered discriminatory when a victim is targeted because of his or her membership in a group defined by the perpetrator on a political, racial, or religious basis.100 Conceptually, persecution in ICL and refugee law can be seen as two sides of the same coin in that in refugee law, victims are protected from state action, while in ICL, the perpetrators of persecution, most often on behalf of a state, are the subject of ICL; it is certainly not inconceivable that the same event can result in reactions by both areas of law.101

The Rome Statute has both narrowed and broadened the crime of persecution in article 7(h). It has been broadened by extending the groups which can be victimized while narrowing it by insisting that this crime is only justiciable if it has been committed in connection to another crime in the Statute, or in the words of the Statute:

Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.

102

Most recently, the definition of persecution has been the subject of debate at the International Law Commission, the United Nations legal thinktank. In the Commission’s Fourth Report on Crimes against Humanity, the Special Rapporteur indicated that:

With respect to the first half of the subparagraph, a group of twenty special rapporteurs and an independent expert, representing a wide array of subject areas, urged that the grounds for persecution set forth at the beginning of subparagraph (h)—which currently reads “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law”—be expanded and updated so as to include persecution on grounds of language, social origin, age, disability, health, sexual orientation, gender identity, sex characteristics and indigenous, refugee, statelessness or migratory status.

(Murphy 2019, para. 60)

6.2. Genocide and Protected Groups

Genocide refers to the commission of very serious crimes with the intent to destroy a national, ethnical, racial or religious group (United Nations 1998, art. 6). It can be seen as an extreme form of persecution, in that every form of genocide is also a crime against humanity but for the latter, there is no need to show to intention to destroy a group (Currie and Rikhof 2013, p. 134).

The “group” in question must be “a national, ethnical, racial or religious” one. In delineating the protected groups in this way, the intention of the drafters of the Genocide Convention appears to have been to “cover only stable groups into which human beings are born without an (easy) way out,” and genocide against political and social groups was explicitly excluded (Currie and Rikhof 2013, pp. 114–15).103 The ICTR’s decision in Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998, para. 512–515, offered useful definitions: a ‘national group’ is “a collection of people who are perceived to share a legal bond of common citizenship, coupled with reciprocity of rights and duties”; an ‘ethnic group’ is “a group whose members share a common language or culture”; a ‘racial group’ is a group “based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors”; and a ‘religious group’ is a group “whose members share the same religion, denomination or mode of worship.”104

In terms of proving as fact the existence of the group and which category(ies) it falls under, the test appears to be a mixed objective/subjective one,105 though a fair amount of weight is given to the subjective view of either the victim or the perpetrator—that is, did either the victim or the perpetrator, or both, view the victim as “belonging to a group slated for destruction.”106 However, the preference appears to be to evaluate the question on the basis of both the subjective and the objective evidence in each individual case.107 The International Court of Justice has held that the group must be defined positively, in a manner based on the characteristics of the group itself, and not negatively (e.g., “the ‘non-Serb’ population”).108 Only a person belonging to one or more of the four types of groups mentioned in the preamble of the above definition would fall within the class of victims.109

While the definition of genocide, including the categories of victim groups, has not changed in the statutes of the international tribunals or the International Criminal Court (United Nations 1993, art. 4(2); United Nations 1994b, art. 2; United Nations 1998, art. 6), the implementation of the Rome Statute at the domestic level presents quite a different picture. In a number of the 70 states which enacted legislation to implement the Rome Statute, more categories have been added.110 Extreme examples of this are France and Burkina Faso (where the legislation adds to the definition of genocide, in addition the ones in the Rome Statute, any group that is defined by an arbitrary characteristic) and Canada (which refers to an identifiable group of persons) (CICC 2017, p. 28). Other countries have changed their legislation in a less dramatic manner by adding other specific protected groups in addition to the traditional ones of national, ethnical, racial or religious groups.

Table 2. Countries that have added specific protected groups to the four in the Genocide Convention.

Country	Political Group	Social Group	Colour	Membership in Union	Gender	Sexual Orientation	Culture	Age	Disability	Health	Conscience
Uruguay	x	x		x	x	x	x	x	x	x
Ecuador					x	x		x		x	x
Colombia	x
Panama	x
Costa Rica	x
Peru		x
Paraguay		x
Poland		x
Switzerland	x	x
Estonia	x	x
Ethiopia112	x		x
Lithuania113	x	x

reflects the protected groups included in domestic legislation prohibiting genocide.111

7. Observations with Respect to International Law

In total, 110 international and regional instruments have been examined, 60 of which mention protected groups (31 IHRL, 14 TCL, 6 IHL and 9 ICL) and of which 30 treaties refer to those groups in substantive articles (4, 11, 6 and 9, respectively). These 110 documents include 59 IHLR instruments, 33 TCL instruments, six IHL instruments, nine ICL instruments, and three refugee law instruments,114 including the Refugee Convention. A full list of the instruments and protected groups, divided by area of law, can be found in Appendix A,

Table A1. International Refugee Law Instruments.

Instrument	Article	Protected Grounds
1951 Convention relating to the Status of Refugees121	1	race, religion, nationality, membership of a particular social group, or political opinion
	33	race, religion, nationality, membership of a particular social group, or political opinion
1966 Bangkok Principles on Status and Treatment of Refugees	1	race, colour, religion, nationality, ethnic origin, gender, political opinion, or membership of a particular social group
1969 Convention Governing the Specific Aspects of Refugee Problems in Africa122	1	race, religion, nationality, membership of a particular social group, or political opinion
1984 Cartagena Declaration on Refugees123	3	race, religion, nationality, membership of a particular social group, or political opinion

,

Table A2. International Human Rights Law Instruments.

Instrument	Article	Protected Grounds
1945 Charter of the United Nations	1(3)	race, sex, language, or religion
	13(b)	race, sex, language, or religion
	55(c)	race, sex, language, or religion
	76(c)	race, sex, language, or religion
1948 Universal Declaration for Human Rights	2	race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status
1966 International Covenant on Civil and Political Rights	2(1)	race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status
	4(1)	race, colour, sex, language, religion or social origin
	24(1)	race, colour, sex, language, religion, national or social origin, property or birth
	26	race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status
1966 International Covenant on Economic, Social and Cultural Rights	2(2)	race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status
1966 International Convention on the Elimination of All Forms of Racial Discrimination	Preamble	race, sex, language, religion, colour, national origin, ethnic origin
	1(1)	race, colour, descent, or national or ethnic origin
1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment	N/A
2006 Convention for the Protection of All Persons from Enforced Disappearance	13(7)	sex, race, religion, nationality, ethnic origin, political opinions or membership of a particular social group
1979 Convention on the Elimination of All Forms of Discrimination Against Women	N/A
1989 Convention on the Rights of the Child	Preamble	race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status
	2(1)	race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status
1990 Convention on the Protection of the Rights of All Migrant Workers and Members of their Families	1(1)	sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status
	7	sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status
2006 Convention on the Rights of Persons with Disabilities	Preamble (p)	race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status
1958 Convention concerning Discrimination in Respect of Employment and Occupation	Preamble	Race, creed, sex
	1(a)	race, colour, sex, religion, political opinion, national extraction or social origin
1948 Freedom of Association and Protection of the Right to Organise Convention (No. 87) (ILO 1948)	N/A
1949 Right to Organise and Collective Bargaining Convention (No. 98) (ILO 1949)	N/A
1930 Forced Labour Convention (No. 29) (ILO 1930)	N/A
1957 Abolition of Forced Labour Convention (No. 105)	1	racial, social, national or religious
1973 Minimum Age Convention (No. 138) (ILO 1973)	N/A
1999 Worst Forms of Child Labour Convention (No. 182) (ILO 1999)	N/A
1951 Equal Remuneration Convention (No. 100)	1	sex
1981 African Charter on Human and Peoples’ Rights (Banjul Charter)	Preamble	race, ethnic group, color, sex, language, religion or political opinions
	2	race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status
1969 Convention Governing the Specific Aspects of Refugee Problems	I(1)	race, religion, nationality, membership of a particular social group or political opinion
	IV	race, religion, nationality, membership of a particular social group or political opinions
2003 Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa	Preamble	race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status
1990 African Charter on the Rights and Welfare of the Child	3	race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status
2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa	N/A
1969 American Convention on Human Rights	1(1)	race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition
	13(5)	race, color, religion, language, or national origin
	22(8)	race, nationality, religion, social status, or political opinions
	27(1)	race, color, sex, language, religion, or social origin
1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights	3	race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition
1990 Protocol to the American Convention on Human Rights to Abolish the Death Penalty	N/A
1985 Inter-American Convention to Prevent and Punish Torture	N/A
1994 Inter-American Convention on Forced Disappearance	N/A
1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women124	Preamble	class, race or ethnic group, income, culture, level of education, age or religion
1999 Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities	N/A
1994 Arab Charter of Human Rights	2	race, colour sex, language, religion, political opinion, national or social origin, wealth, birth or other status, and without any discrimination between men and women
2012 ASEAN Human Rights Declaration	2	race, gender, age, language, religion, political or other opinion, national or social origin, economic status, birth, disability or other status
2007 ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers	N/A
2013 ASEAN Declaration on the Elimination of Violence against Women and Elimination of Violence against Children	N/A
1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights)	14	sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status
1952 Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe 1952)	N/A
1963 Protocol 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe 1963)	N/A
1983 Protocol 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe 1983)	N/A
1984 Protocol 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe 1984)	N/A
1994 Protocol 11 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe 1994)	N/A
2000 Protocol 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms	1	sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status
2002 Protocol 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe 2002)	N/A
2004 Protocol 14 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe 2004b)	N/A
2013 Protocol 15 to the European Convention for the Protection of Human Rights and Fundamental Freedoms125 (Council of Europe 2013a)	N/A
2013 Protocol 16 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe 2013b)	N/A
1961 European Social Charter	Preamble	race, colour, sex, religion, political opinion, national extraction or social origin
1996 Revised European Social Charter	V(E)	race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status
1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Council of Europe 1987)	N/A
1995 Framework Convention for the Protection of National Minorities	4	national minority
	6	ethnic, cultural, linguistic or religious identity
1992 European Charter for Regional or Minority Languages (Council of Europe 1992a)	N/A
1996 European Convention on the Exercise of Children’s Rights (Council of Europe 1996a)	N/A
1997 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine)	11	Genetic heritage
1977 European Convention on the Legal Status of Migrant Workers (Council of Europe 1977)	N/A
1992 European Convention on the Participation of Foreigners in Public Life at the Local Level (Council of Europe 1992b)	N/A
1997 European Convention on Nationality	5(1)	sex, religion, race, colour or national or ethnic origin
2005 Convention on Action against Trafficking in Human Beings	3	sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status
2007 Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse	2	sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, state of health, disability or other status
2011 Convention on Preventing and Combating Violence against Women and Domestic Violence	4(3)	sex, gender, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, gender identity, age, state of health, disability, marital status, migrant or refugee status, or other status

,

Table A3. Transnational Criminal Law Instruments.

Instrument	Article	Protected Grounds
1979 International Convention Against the Taking of Hostages	9	race, religion, nationality, ethnic origin or political opinion
1988 Convention for the Suppression of Unlawful Acts of Violence against the Safety of Maritime Navigation (United Nations 1988a)	N/A
1997 International Convention for the Suppression of Terrorist Bombings	12	race, religion, nationality, ethnic origin or political opinion
1999 International Convention for the Suppression of the Financing of Terrorism	15	race, religion, nationality, ethnic origin or political opinion
2005 International Convention for the Suppression of Acts of Nuclear Terrorism	16	Race, religion, nationality, ethnic origin or political opinion
2010 Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft (ICAO 2010b)	XIII	race, religion, nationality, ethnic origin, political opinion or gender
2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation	10(3)	race, religion, nationality, ethnic origin, political opinion or gender
1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances	6(6)	race, religion, nationality or political opinions
2000 United Nations Convention against Transnational Organized Crime	14	sex, race, religion, nationality, ethnic origin or political opinions
2003 United Nations Convention against Corruption	15	sex, race, religion, nationality, ethnic origin or political opinions
2002 Inter-American Convention Against Terrorism	14	race, religion, nationality, ethnic origin, or political opinion
2005 Convention on the Prevention of Terrorism	21(1)	race, religion, nationality, ethnic origin or political opinion
1999 Organization for African Unity, Convention on the Prevention and Combatting of Terrorism	N/A
1998 Arab Convention for the Suppression of Terrorism	N/A
1987 South Asian Association for Regional Cooperation, Regional Convention on Suppression of Terrorism	N/A
1970 Convention for the Suppression of Unlawful Seizure of Aircraft (United Nations 1970)	N/A
1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (ICAO 1988)	N/A
2010 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (ICAO 2010a)	14	race, religion, nationality, ethnic origin, political opinion or gender
1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents (United Nations 1973a)	N/A
1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (IMO 1988)	N/A
1994 Convention on the Safety of United Nations and Associated Personnel (United Nations 1994a)	N/A
2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime126 (United Nations 2000c)	N/A
2000 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Crime127 (United Nations 2000b)	N/A
2001 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime (United Nations 2001)	N/A
1961 Single Convention on Narcotic Drugs (United Nations 1961)	N/A
1971 Convention on Psychotropic Substances (United Nations 1971)	N/A
1972 Protocol Amending the Single Convention on Narcotic Drugs (United Nations 1972)	N/A
1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (United Nations 1956)	N/A
1973 International Convention on the Suppression and Punishment of the Crime of Apartheid	Preamble	race, sex, language, religion, colour, national origin
2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (United Nations 2000a)	N/A
2001 Convention on Cybercrime (Budapest Convention) (Council of Europe 2001)	N/A
2003 Additional Protocol to the Convention on Cybercrime, concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed through Computer Systems	4(1)	race, colour, descent or national or ethnic origin, religion
	5(1)	race, colour, descent or national or ethnic origin, religion
1982 United Nations Convention on the Law of the Sea (United Nations 1982)	N/A

,

Table A4. International Humanitarian Law Instruments.

Instrument	Article	Protected Grounds
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (Geneva Convention I)	3	race, colour, religion or faith, sex, birth or wealth, or any other similar criteria
	12	sex, race, nationality, religion, political opinions, or any other similar criteria
	31	race, religion, political opinion
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (Geneva Convention II)	3	race, colour, religion or faith, sex, birth or wealth, or any other similar criteria
	12	sex, race, nationality, religion, political opinions, or any other similar criteria
Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 (Geneva Convention III)	3	race, colour, religion or faith, sex, birth or wealth, or any other similar criteria
	16	race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria
Geneva Convention Relative to the Protection of Civilian Persons in Times of War of 12 August 1949 (Geneva Convention IV)	3	race, colour, religion or faith, sex, birth or wealth, or any other similar criteria
	13	race, nationality, religion or political opinion
	27	race, religion, political opinion
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977 (Additional Protocol 1)	9	race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria
	75	race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977 (Additional Protocol II)	2	race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria

and

Table A5. International Criminal Law Instruments.

Instrument	Article	Protected Grounds
1945 Charter of the International Military Tribunal (Nuremberg Charter)	6(c)	political, racial or religious grounds
1946 Charter of the International Military Tribunal for the Far East (Tokyo Tribunal)	5(c)	political or racial grounds
1949 Convention on the Protection and Punishment of the Crime of Genocide (Genocide Convention)	2	national, ethnical, racial or religious group
1998 Rome Statute of the International Criminal Court (Rome Statute)	6	national, ethnical, racial or religious
	7(1)(h)	political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law
	21	gender, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status
1993 Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY Statute)	4(2)	national, ethnical, racial or religious
	5(h)	political, racial and religious
1994 Statute of the International Tribunal for Rwanda (ICTR Statute)	2	national, ethnical, racial or religious
	3(h)	political, racial and religious
2002 Statute of the Special Court for Sierra Leone (SCSL Statute)	2(h)	political, racial, ethnic or religious
2001 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (ECCC Statute)	4	national, ethnical, racial or religious
	5	political, racial, and religious
2014 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights128	28(B)	national, ethnical, racial or religious
	28(C)	political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law

. Looking comprehensively at protected grounds in all the instruments, it is clear the protected grounds in the Refugee Convention are appropriate but may not be adequate. There are 29 categories of protected groups set out in the various instruments, as listed in Appendix B. The most common categories, defined as those that are present in more than 50% of the instruments with protected grounds, are race, religion, nationality, political opinion, ethnic origin, colour, and sex. Of these, the first four grounds are protected under the Refugee Convention. Ethnic origin is not explicitly protected, but the UNHCR does provide some guidance to the effect that nationality should be understood as broader than citizenship to include ethnic and linguistic groups (UNHCR 2019, para. 74). Similarly, colour could also fall under an existing category, namely race, but otherwise would possibly qualify under MPSG as both immutable under the protected characteristics approach and a visible distinction setting a person apart from society under the social perception approach. In most circumstances, sex or gender appear to be used interchangeably, but in one treaty, sex is listed alongside gender.115 However, the MPSG analysis demonstrated claims based on gender can encompass gender as biological sex and gender identity. Notably, the Bangkok Principles add only these three categories—ethnic origin, colour, and sex (listed as gender)—to the list of protected groups.

Additionally, protected groups based on social origin, language, birth, ‘other’ status, economic status, and property were recognized in at least 10 or more instruments. The first three categories may already be sufficiently captured by an existing protected group in the Refugee Convention. Social origin is comparable to MPSG; adding ‘social origin’ as a standalone ground would be superfluous. As noted above, language (or linguistic group) may fall under nationality and, alternatively, has been recognized as an example of a PSG in Ward.116 Similarly, birth may be recognized under nationality or, at the least, be viewed as immutable under the protected characteristics approach of MPSG. The ‘other’ status provides broad protection to similarly situated groups; while the Refugee Convention does not contain a similar catch-all provision, MPSG is a flexible category and a broader ‘other’ category may not serve the overarching purpose of protecting identifiable groups against persecution.

The final two categories, economic status and property, are more problematic. Economic-based claims have faced significant challenges in domestic jurisprudence. Claimants have been successful where they were unable to disassociate from their economic status, but less so where the claim is based on wealth or property ownership. Wealth is a protected ground in all the IHL treaties and its variants are recognized in several IHRL statutes.117 The Rome Statute does not define persecution with respect to wealth, but states that the applicable law must be interpreted and applied consistently with internationally recognized human rights, without adverse distinction on grounds including, inter alia, wealth (United Nations 1998, art. 21(3)). However, as few claims are based on wealth or property, it may be premature to say that economic-based claims are categorically excluded from protection.

IHRL does not appear to be the most useful reference point for expanding protected groups. First, most of the protected groups appear in aspirational articles and, as such, do not have a great deal of precedent value. Second, the reference to protected groups in the small number of substantive articles, while typically broader than in refugee law, are usually in the nature of the negative obligation of non-discrimination addressed at states implementing the provisions of the treaties in question in the sense that a positive obligation has to be implemented upon ratification and that this positive obligation cannot be limited by discriminatory practices; the fact that every such article contains a reference to protected groups indicates that certain obligations are or have been prone to such discriminatory practices and the purpose of the provision is to ensure it does not continue. The reference to protected groups in the Refugee Convention has a different purpose: it is part of the ‘refugee’ definition and, as such, must be established by the person seeking asylum in another state in a typically more private setting where a decision-maker determines whether a person positively belongs to that group. The fact that at the time of the negotiations of the Refugee Convention there was already a human rights instrument with a broad category of protected groups, together with the desire of the drafters not to have too wide a circle of protected groups in order not to open the definition to possible abuse, likely indicates that the drafters were aware of larger possible categories of protected groups but deliberately decided to frame the groups more narrowly (Zimmermann 2011, pp. 309–11; Weis 1990, p. 8).

However, having made this general observation, it is rather striking that one substantive article bearing resemblance to the refugee situation uses language that broadens the number of protected groups, though not drastically so. This is the case with the Enforced Disappearance Convention (United Nations 2006a, art. 13(7)), where the article dealing with extradition adds ‘sex’ and ‘ethnic group’ and refers to ‘particular social group’ as opposed to ‘social origin’:

Nothing in this Convention shall be interpreted as imposing an obligation to extradite if the requested State Party has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of that person’s sex, race, religion, nationality, ethnic origin, political opinions or membership of a particular social group, or that compliance with the request would cause harm to that person for any one of these reasons.

The purpose of this article is similar to that of the non-refoulement provision in the Refugee Convention (United Nations 1951, art. 33), namely that persons who might have committed an offence related to forced disappearance will not be subject to a foreign prosecution if that prosecution will be carried out for discriminatory reasons. The Refugee Convention does not allow for the removal of a refugee if that person would face a threat to their life on account of belonging to a protected group (with the same reference to protected groups as in its definition of persecution). If a human rights treaty prohibits a removal for a criminal prosecution and refers to an expanded iteration of protected groups, the question can be asked whether such an expansion would also be desirable for another human rights treaty, the Refugee Convention, especially if the expansion is modest, adding sex and ethnic group to the five pre-existing groups.

This argument has even more force when considering the provisions with respect to protected groups in TCL and IHL treaties. Almost all 14 TCL treaties that have articles mentioning protected groups deal with the same topic—extradition—and while most are couched in the same language as the Refugee Convention, two more recent conventions, the 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (IMO 2005, art. 10) and the 2010 Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft (ICAO 2010b, art. XIII), have updated their text to “race, religion, nationality, ethnic origin, political opinion or gender”, which mirrors the language in the Enforced Disappearance Convention.

While IHL does not have a mention of protected groups in the area of extradition, it is striking that already in 1949 all four Geneva Conventions mandated, in common article 3, that persons not taking part in hostilities should be treated “humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.” This is broader than other articles in these conventions dealing with non-combatants, such as civilians or prisoners of war, where the adverse distinction is worded even more narrowly than the Refugee Convention, namely “race, nationality, religion or political opinion”, which mirrors the development in refugee law between the text of the Statute of the International Refugee Organization and the Refugee Convention by not referring to social group. However, by the time the Geneva Conventions were supplemented by the 1977 Additional Protocols, the number of protected groups had been expanded to “race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria” in all three provisions. The fact that IHL, which deals with the regulation of the most serious human rights violations in times of war, originally mirrored the number of protected groups for non-combatants to a smaller number than the Refugee Convention but saw fit to expand due to the new needs in the theatre of war, bears reflection for an instrument applicable primarily to peacetime.

While IHRL, TCL, and IHL can provide some assistance to a possible broader understanding of protected groups in the refugee context, the situation with ICL is different. Historically, the number of protected groups were already narrower than even those in the refugee definition. This had to do with the fact that ICL has a purpose different from both IHRL and refugee law, namely prosecuting individuals for international crimes; at the time, ICL was a new approach in international law and there was a desire to proceed cautiously since this area of international law was treading even more intensely in the realm of sovereignty than IHRL for two reasons: first, IHRL would be applicable at that time only if accepted internally by states who had signed the human rights treaties, while ICL would apply whether or not a state whose nationals were subject to prosecutions would agree; second, the opprobrium attached to prosecutions was of a higher degree as in almost all cases in the post-Second World War era, the persons on trial were representative of odious state behaviour. The difference between IHRL and refugee law, on the one hand, and ICL on the other, with respect to persecution was explained in an early ICTY case.118 Note, however, that this explanation deals more with the level of persecution than the notion of protected groups.

As ICL has specifically dealt with the notion of persecution, both directly as a crime against humanity and indirectly as genocide, and since the protected groups for these two crimes have grown dramatically since the Second World War and the reasons for the justification to have the protected groups related to those crimes be narrower than the protected groups in the Refugee Convention has not changed, it would be logical to seriously examine the protected groups in the Refugee Convention and bring them at a minimum in line with the listings in ICL to include ethnic origin, cultural, and gender/sex.

8. Conclusions

The Refugee Convention is the primary international instrument protecting refugees and, in 1951, was one of the first instruments to recognize protected groups. Nearly 70 years later, the number of international and regional instruments protecting persons from discrimination across a broad range of categories has grown dramatically. A review of IHRL, TCL, IHL, and ICL reveals that four of the protected groups enumerated in the Refugee Convention—race, religion, nationality, and political opinion—reflect the core categories recognized in other instruments. The fifth group—membership of a particular social group—is a flexible ground that can encompass similar protections as those found in other areas of international law. Domestic jurisprudence shows that MPSG may be used for categories that are less prevalent in international instruments, including age119 and disability,120 and may go further than other instruments, such as recognizing family as a PSG and, though not universally accepted, recognizing victims of domestic and gang violence as a PSG.

In conclusion, the enumerated grounds in the Refugee Convention may already protect, or at least have the potential to protect, many of the groups protected under other international law regimes. MPSG is a flexible category, and beneficial for its ability to evolve in line with contemporary refugee claims while not expanding the definition so much that the Refugee Convention’s purpose is frustrated. However, examining other areas of international law shows that the notion of protected groups has resulted in consistent and detailed definitions, which could lead to a better appreciation of both the flexibility and the limitations of the parameters of protected groups in the refugee definition. Of the areas discussed, namely ICL, IHRL, IHL and TCL, the first two are the most promising, IHRL because of its affinity in terms of its purpose of human rights protection, which is similar to the underlying purpose of refugee law while ICL is very useful since its origins in the area of protected group were very narrow because of its subject matter of criminal prosecutions but which has recently expanded and gone beyond refugee law in this aspect. Amending the refugee definition to include other groups, particularly those additional grounds identified in ICL and IHRL, either as novel categories (such as culture or colour) or as a justification for a broader approach where refugee jurisprudence has seen a narrowing of the relevant concepts (such as ethnic origin or gender/sex) may be desirable to provide greater protection and consistent decision-making, assuming that the political context is conducive to such an approach.