Gang-Related Persecution (by “Maras”)

Objectives of the Presentation:

(1) To describe the criteria for refugee recognition (under Article 1 of the 1951 Refugee Convention)

(2) To explain in which circumstances a person fleeing acts of violence by the Maras could be in need of refugee protection

Preliminary Considerations

Preliminary Considerations (1/3)

• Refugee recognition requires a case-by-case analysis, including factors such as:

• Level of risk faced by the applicant

• Severity and nature of harm

• Reasons behind persecution

• Applicant´s involvement in activities of the Maras

• Level of protection in country of nationality

Preliminary Considerations (2/3)

• Generalizations should be avoided, since:

• Not all victims of a certain type of persecution will qualify for refugee status

• There is a risk that individuals facing life or death situations may be excluded out of hand

Preliminary Considerations (3/3)

• From an historic perspective, there has been a marked emphasis on certain more traditional forms of persecution (e.g. persecution of political dissidents)

• No changes of the refugee definition are involved

Elements of the Refugee DefinitionElements of the Refugee Definition (1951 Refugee Convention)(1951 Refugee Convention)

Framework Of Analysis Of The Broader Refugee Definition

Substantive Considerations

1. Outside The Country Of Nationality

• Country of nationality is the point of reference

• Type of entry is not relevant per se in the application of the refugee definition

2. Well-founded Fear of Persecution: National Protection (1/3)

• Also necessitates a case-by-case analysis

• “Perfect” protection is not required

• Lack of willingness / ability to provide protection justifies the individual´s search for international protection abroad

2. Well-founded Fear of Persecution: National Protection (2/3)

• Lack of willingness / ability to provide protection is considered to exist when:

• State is the agent or persecution

• There is a failed State

• State does not control its entire territory

• There are patterns of widespread corruption

• Authorities admit to be unable to provide protection against certain types of violence

2. Well-founded Fear of Persecution: National Protection (3/3)

• In the presence of willingness to provide protection, there should be:

• An assessment of the effectiveness of the measures taken

• A distinction made between measures of protection and measures related to the investigation and prosecution of a crime

• An evaluation whether other measures are required, additional to measures of a general character to preserve public order and public security

3. Persecution

• Assessment of actions carried out by the Maras against their victims:

• Murder

• Beatings

• Rape

• Extortion

4. The Reasons for Persecution

• Dichotomy between “common crimes”/ “private acts” vs. Persecution for a Convention ground

• Maras sometimes attack their victims on a highliy selective basis, using a diverse range of criteria:

• Geographic position

• Profession or type of occupation

• Personal attributes

• Behavior considered a threat to the group

• Family links

Persecution By Maras

Groups at risk:

- Operators of public transportation

- Individuals working in rehabilitating former members

- Individuals refusing to become members

- Individuals who have contacted the authorities or serve as witnesses

- Law enforcement authorities

- Former members

- Family members

Additional Considerations (1/2)

• Analysis of the broader refugee definition: “Other circumstances seriously disturbing public order” and threat to life, security or liberty:

• Man-made disasters, not natural disasters

• Intenral tensions and disturbances seriously altering public order, including sustained acts of violence by organized crime organizations

Additional Considerations (2/2)

• For those not recognized as refugees, consider protection under human rights standards:

• 8. In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.

Artículo 22(8),

American Convention on Human Rights