Between Martyrdom and Silence: Dissent, Duress, and Persecution as the Suppression of Human Rights under the Refugee Convention

Abstract

A real risk of death, torture, violence, or arbitrary detention is generally sufficient to satisfy ‘persecution’ under the Refugee Convention. Where, however, physical harm will only arise if a claimant were to exercise certain human rights upon return, jurisprudential uncertainty reigns. Only a few individuals are impelled to become ‘martyrs’ through open dissent. Courts strongly endorse these dissenters’ entitlement to international protection even if they could avoid retribution through self-censorship. A second group – ‘a silent minority’ – are those who would actually refrain from exercising their rights to avoid physical harm. Most jurisprudence appears to accept that such a situation may sometimes amount to persecution. Unlike martyrs, however, these claimants are required to meet control devices based upon the severity of the human rights restriction, and/or the mental effects of self-censorship on the claimant. These are, however, both arbitrary and unprincipled. This article argues the real harm felt by martyrs and the silent minority is the same: the forcible suppression of their enjoyment of human rights. Importantly, the United Nations High Commissioner for Refugees’ approach to military service, religious, and sexuality cases already embodies this principle. To generalize, this ‘suppressive’ persecution arises when (a) claimants sincerely wish to engage in actions which (b) are international human rights entitlements and (c) they face objective conditions of sufficient duress such that they cannot reasonably assert their rights through civil disobedience. When States or private actors suppress the exercise of rights by duress in this way, those affected suffer a denial of rights amounting to persecution. This analysis should apply whether a claimant would be a martyr or would be intimidated into self-censorship.