Protecting Female Refugees from Gender-Based Violence
Master Sydelle Johnson
Master of the High Court Trinidad and Tobago
IAWJ Rising Leader Fellow
“Coast Guardsmen Beat, Raped Me” was the headline in Trinidad Express newspaper on the 4th of June 2023[1]. This statement was made by “a 21-year-old Venezuelan woman who showed bruises all over her body at the immigration Detention Centre in Aripo”[2]. According to the article, “the woman said that she was raped and beaten by three Coast Guard officers while being detained at the immigration facility at Heliport in Chaguaramas.[3]”
Pictures courtesy Trinidad Express Newspaper Article dated the 4th June 2023; https://trinidadexpress.com/news/local/coast-guardsmen-beat-raped-me/article_8 19c9e-027e- 11ee-b01e-c7fc8095574f.html
There has been an influx of Venezuelan asylum seekers into Trinidad & Tobago due to the “humanitarian crisis, owing to the political, socio-economic and human right situation in Venezuela”[4]. In July of 2021, the UN Refugee Agency (UNHCR), recorded “over 20,800 refugees and asylum-seekers who were registered with the UNHCR in Trinidad and Tobago. The vast majority of those refugees and asylum-seekers are of an employable age”.[5] Out of those 20,800 refugees, “48.2% of those refugees are women”.[6] These statistics are important in understanding the need to protect those vulnerable members of society, more particularly, women and children who have fled their homes in search of seeking asylum.
This paper seeks to highlight the strides made by the Courts to protect women and children who are “forcibly displaced and who face a higher risk of gender-based violence”[7] in Trinidad & Tobago. The paper will first explore the various aspects of gender-based violence faced by female refugees/asylum seekers. It will then review some of the general reliefs sought by most asylum seekers/refugees through the High Court and the legislative limitations in relation to same. In closing, this paper will highlight some of the general protections offered by Courts in, despite these legislative limitations. In particular, it will showcase some measures taken by the Court to provide gender sensitive adjudication.
What is gender-based violence?
“Gender-based violence can include sexual, physical, mental and economic harm inflicted in public or in private. It also includes threats of violence, coercion and manipulation and can take many forms”[8]including rape and sexual exploitation. Our women and girls are some of the most vulnerable members of society. Gender based violence poses a serious violation to their human rights. According to the UNHCR:
“Gender-based violence (GBV) is a serious violation of human rights and a life-threatening health and protection issue. When people flee their homes, they are often at greater risk of physical, sexual and psychological violence, such as rape, sexual abuse, trafficking and forced prostitution”.
Gender-based Violence and Protection of Refugees in Trinidad and Tobago
Gender-based violence against female refugees is now ventilated, in the public domain in Trinidad & Tobago. According to the 2021 Trafficking in Persons Report:
“Trinidad and Tobago serves as a transit point for Venezuelan refugees and migrants en route to Europe, North Africa, and elsewhere in the Caribbean. The ongoing humanitarian crisis in neighboring Venezuela has contributed to a large influx of refugees and migrants who are at high risk for trafficking. Human traffickers exploit domestic and foreign victims in Trinidad and Tobago, and traffickers exploit victims from Trinidad and Tobago abroad. Sex trafficking victims are women and girls primarily from Venezuela, Colombia, the Dominican Republic, and Guyana; traffickers offer employment in brothels and clubs, including via social media—which increased as a result of the pandemic—along with advertisements in Venezuelan newspapers and recruitment by other victims. Traffickers also exploit individuals from Puerto Rico, the Philippines, China, India, Nepal, and St. Vincent and the Grenadines. Traffickers are increasingly targeting and accompanying vulnerable foreign young women and girls between the ages of 15 and 21. Observers report that law enforcement and security officials are implicated in human trafficking, including coast guard officials who facilitate the transit of women and girls from Venezuela to the country; immigration and customs officers who ensure that women and girls arrive and receive entry; and members of the police who accept bribes to facilitate transport to houses across the country and work with brothel owners to protect their establishments from police raids, particularly in the southern police districts where most Venezuelan refugees and displaced persons attempt to enter the country.” [9]
The Trafficking of Persons Act was passed to incorporate and adhere to the United Nations Protocol to prevent, suppress and punish trafficking in persons, especially women and children. This supplemented the United Nations Convention Against Transnational Organized Crime and for matters connected therewith or incidental thereto.[10]. However, to date there have been no convictions in the Courts, in relation to those crimes. The Counter Trafficking Unit of the Ministry of National Security has oversight over the implementation of the act.
In the most recently concluded Joint Select Committee (JSC) on Human Rights, Equality and Diversity - May 26, 2023 - Treatment of Migrants, evidence was given by Ms. Denise Pitcher, the Chief Executive Officer of the Caribbean Centre for Human Rights. Ms. Pitcher highlighted that there have been ongoing reports of women and minors being sexually abused at the Heliport Detention Centre, exemplified in the newspaper article mentioned earlier.
In response, the Immigration Department of the Ministry of National Security confirmed one allegation of impropriety which is currently being investigated. The Ministry also confirmed that there have been additional complaints made. The Trinidad & Tobago Police Service (TTPS) also made contributions at the JSC and confirmed that they are also active in the investigation. However, the TTPS highlighted that the detention centers do not fall under their purview, and they can only respond when a report is made to them. The TTPS stated investigations into one complaint yielded 30 interviews. Unfortunately, the interviews did not lead to any arrests. The TTPS lamented the lack of safe housing for victims of human trafficking, and when available, accommodations provided are sometimes uncomfortable. The TTPS reiterated their need for assistance with counselling services to assist and support the victims of human trafficking.
While challenges were outlined, the TTPS confirmed that with the advent of the Gender Based Violence Unit (GBVU) in 2020, partnerships were formed with the Living Waters Community and other agencies, who can offer support to migrants and the victims of human trafficking who have been sexually exploited. Woman Superintendent of Police Ms. Claire Guy Alleyne, who commands the GBVU, confirmed a multi-sectoral approach. The TTPS provided data on the interactions between the stakeholders, who ultimately provide support to the victims with counselling and safe housing.
The Chairperson of the JSC[11] highlighted the statistics from the Counter Trafficking Unit who received a total of 194 reports related to the sexual exploitation of migrants over the period January 2019 to March 2023. Of the 194 reports, 65 victims were uncooperative in providing evidence against their traffickers. The Immigration Department confirmed this and stated that the migrants do not provide evidence due to the fear from the traffickers, fear of harm being meted out to the families of those persons who were trafficked, and migrants who wish to return home to their families.
Reliefs Sought in the High Court of Trinidad and Tobago
There have been several matters filed before the Civil, Criminal, Family and Children Divisions of the High Court of Trinidad & Tobago. These matters all touch and concern asylum seekers, refugees, migrants, and potential victims of human trafficking, namely:
- Constitutional Reliefs on the legality of the deportation of asylum seekers/refugees[12];
- Writ of Habeas Corpus AD Subjiciendum on whether the detention and continuing detention of asylum seekers and refugees by the Chief Immigration officer were in breach of Section 4 of an individual’s constitutional rights[13].
- Injunctive reliefs to prevent the removal of refugee and asylum seekers until the hearing and determination of their immigration status; [14]
- The need of the Children Authority to bring matters relating to children and migrant children in need of care and protection before the court as a matter of urgency[15]
Legislative limitations in relation to refugees/asylum seekers in Trinidad and Tobago.
While Trinidad & Tobago signed the 1951 Convention Relating to the Status of Refugees and its 1967 protocol, it is yet to be incorporated into domestic law. However, the case law suggests[16] that the very signing of the convention creates a legitimate expectation to those who seek to rely on same for their protection. The honorable Mr. Justice Westmin James in his article entitled “Refugees in the Commonwealth Caribbean”[17] explains that:
“The countries in the Commonwealth Caribbean are dualist states, meaning unincorporated treaties do not automatically become part of domestic law. Further steps are needed to incorporate these international treaties into national law. Unlike monist legal systems, where international law is incorporated directly into the domestic legal system, in the Commonwealth Caribbean, the state normally needs to pass domestic legislation to change the domestic law to the rules of law accepted in treaties. ……However, there are cases that have established that even if an international convention is not expressly incorporated into domestic law, its provisions are justiciable…….In this regard, the Refugee Convention therefore can be used to construe the constitutional provisions or legislation regarding asylum and immigration and to review the policy and individual decisions of the immigration officials.” [18]
According to Justice James: -
“The international community typically accepts the notion that constitutional rights are applicable to non-nationals who are subject to the jurisdiction of the state, especially regarding immigration matters. It is well established in the Commonwealth Caribbean that international human rights norms and commitments play an important role in the interpretation of domestic constitutional provisions” [19]Therefore, it is suggested that the provisions of the right to life, prohibition against cruel, inhumane, or degrading punishment or treatment among others under the Caribbean constitutions should be interpreted consistent with international law so as to provide protection to those seeking refugee protection.”[20]
The Constitution of Trinidad & Tobago therefore offers protection to refugee/asylum seekers. It also offers protection to female refugees/asylum seekers against gender-based violence.
It should also be noted that in 2014, the Government of Trinidad & Tobago developed a refugee policy called, “The National Policy to address Refugee and Asylum-Seekers in Republic of Trinidad and Tobago 2014”. It was adopted by the cabinet in June 2014. This policy dealt with the refugee status determination procedure and proposed a three-phased strategy. It will allow for the transfer of knowledge and expertise on “refugee status determination to Trinidad and Tobago through training provided by the United Nations High Commissioner for Refugees (UNHCR).”[21]
This policy represented the executives’ offering of a standardized framework for the protection of refugees/asylum seekers in Trinidad & Tobago. The Courts, therefore, must also play a part in the protection of rights of this vulnerable group.
How have the Trinidad and Tobago Courts dealt with the protection of Female Refugees from Gender Based Violence in spite of legislative limitations
· Establishment of Specialized Courts
The Judiciary of Trinidad & Tobago continues to lead the way with the establishment of specialized courts to deal with people most vulnerable in society. Master Christie Ann Morris Alleyne, court executive administrator, speaking at the 24th Meeting - JSC National Security - Criminal Justice System articulated that it is the judiciary’s intention to establish a Sexual Offences and Human Trafficking Court. This would be a special criminal court to deal with matters related to sexual offences and human trafficking.[22] This Court is being established to ensure that matters involving gender-based violence and human trafficking are fast tracked. The 2021 Trafficking in Persons Report: Trinidad & Tobago, through the US Department of State, Office to Monitor and Combat Trafficking in Persons, highlighted that
“In October 2020 authorities established several virtual hearing centers for judges and judicial officers to take evidence by any specific means and from a specific location, including the Judiciary’s Virtual Access Customer Center or any court building; the law required all court matters to be held in camera, although the courts allowed for victim testimony via video or written statements.”
These specialized courts will offer protection to victims of these gender-based violence crimes and will also assist refugees who experience gender-based violence, to bring their perpetrators to justice.
· Training for Judicial Officers and Collaboration with International Agencies such as the UNHCR
The Judiciary of Trinidad & Tobago also provided specialized training to judicial officers. The United Nations High Commissioner for Refugees (UNHCR) has partnered with the Judicial Education Institute of Trinidad & Tobago (JEITT) on several occasions to provide training for its judicial officers. The JEITT in collaboration with UNHCR hosted a Workshop entitled Non-Refoulement as a Principle of Customary International Law held on to the 10th of February 2022. There was also a workshop on the International Protection of Refugees on the 2nd and 3rd of August 2021. An online course on Refugee Migrant Children and Updated Council of Europe HELP/UNHCR course on Asylum and Human Rights was held for a period of 7 weeks from the 26th of May 2021. These workshops offered judicial officers the necessary training to identify and address issues pertaining to the protection of refugees and asylum seekers. Within these workshops the UNHCR highlighted the main protection risks for refugees/asylum seekers,[23] which include:
- Dire need of protection and humanitarian assistance;
- food, medicine, shelter and education;
- Difficulties to access the territory;
- Lack of legal framework and difficulty in access to the asylum systems;
- Lack of alternative legal status: cost & requirements;
- Barriers to access services for people with specific need;
- Sexual and Gender Based Violence;
- Trafficking and smuggling;
- Forced returns or detentions;
- Deaths at sea;
- Discrimination and xenophobia; and
- Insufficient access to livelihoods and labor exploitation
Judicial officers were therefore trained with the necessary skills to adjudicate over matters involving the protection of refugees, and in particular, female refugees in Trinidad & Tobago.
· Establishment of a Gender Equality Protocol
Furthermore, the Judiciary of Trinidad & Tobago launched their Gender Equality Protocol for Judicial Officers and offered a specialized training workshop for judicial officers on gender sensitive adjudication. “Justice Through a Gendered Lens the Gender Equality Protocol”[24], which guides judicial officers to “identify whether there is an equal power relationship at play.”
It encourages judicial officers to “apply strict scrutiny if suspected classes such as sex, gender and/or sexual preference or orientation are implicated”. The protocol goes even further to allow judicial officers to “pay particular attention to cases in which two suspect classes overlap – such as sex and socioeconomic position – and which occur in contexts such as poverty, homelessness, and migration” and reminds judicial officer to “read and interpret the facts without discriminatory stereotypes and take into account any contextual inequality already identified”. Judicial officers are empowered through the protocol to “question the supposed neutrality of laws or norms and evaluate disparate impacts that facially neutral laws may impose. More importantly, the protocol allows judicial officers to:
Credit: page 54; Justice Through a Gendered Lens- Gender Equality Protocol for Judicial Officers
In applying these principles, judicial officers are equipped with the tools to administer gender sensitive adjudication. Therefore, when matters involving gender-based violence from female refugees and asylum seekers arise, the Court is able to provide the necessary protections to those individuals.
· Establishment of Internal and External Interventions
There are numerous internal and external intervention services offered through the Courts. These services expand to offering therapeutic interventions to victims of gender-based violence. The Children Court in particular, provides a fitting example of the interventions offered to migrants and more particularly migrant children. Young female migrants, experience a number of abuses along their journey. Some are trafficked across the waters while others come seeking asylum. The Court has the task to provide protection to these young women, through applications made by the Children Authority[25]. Justice Bansee Sookhai[26] highlights the need for the children’s authority to protection these migrant children by:
i. immediately bringing wardship proceedings before the Court. These proceedings will offer protection to the child as the Court is vested with a parent patriae jurisdiction having regard to what is in the best interest of the child. This interest was expanded to include the emotional, physical and spiritual welfare of the child;
ii. offering housing and shelter for these migrant children and ensuring that children are to be separated from adults irrespective of the type of placement and accommodated in an environment conducive to their age, condition, nature of care, and treatment of development.[27]and adults do not share residences;
iii. Offering psychological interventions for children in need of protection;
iv. Ensuring the enrollment of the child in an educational/vocation training
v. Holding the Children Authority Accountable for any breaches in their statutory mandate to offer the care and protection of children in need of protection.
The provision of services such as psychological interventions to victims of gender-based violence also extends to other divisions of the High Court.
Conclusion
The Court offers a myriad of services to protect refugee/asylum seekers in the absence of specific legislation offering such protections. More particularly the Court is equipped with the tools to deal with female refugees who are victims of gender-based violence. All too often, victims of gender-based violence seldom get relief from the Court as most fear facing their perpetrators in Court. The Judiciary’s intention is to implement specialized courts that will assist victims in giving their testimony without having to physically face their perpetrators. Judicial officers are also trained in gender-sensitive adjudication to prevent victims from being re-traumatized and offer various therapeutic interventions to these victims. In this way, the Courts, in the Administration of Justice will continue to ensure that all citizens, inclusive of those female refugees/asylum seekers are protected.
[1] Sorias, Leah; Coast Guardsmen Beat, Raped Me, Raped and beaten at Heliport. Trinidad Express Newspaper Article dated the 4th June, 2023; https://trinidadexpress.com/news/local/coast-guardsmen-beat-raped-me/article_8 19c9e-027e- 11ee-b01e-c7fc8095574f.html
[2] Ibid
[3] Ibid
[4] Response for Venezualans https://www.r4v.info/sites/default/files/2021-06/2%20Pagers%202021%20TT.pdf
[5] UNHCR Trinidad and Tobago Fact Sheet July, 2021
[6] Ibid
[7] https://www.unhcr.org/what-we-do/protect-human-rights/protection/gender-based-violence
[8] Ibid
[9] 2021 Trafficking in Persons Report: Trinidad and Tobago OFFICE TO MONITOR AND COMBAT TRAFFICKING IN PERSONS of the US Department of state https://www.state.gov/reports/2021-trafficking-in-persons-report/trinidad-and-tobago/
[10] Trafficking in Persons Act Chap 12:10
[11] Human Rights, Equality and Diversity - May 26, 2023 - Treatment of Migrants
[12] Claim Number CV2020-04062
[13] Claim Number CV 2020-01118
[14] Ibid
[15] Case number C-North-AP-4399-2022-1 In the Matter of the Family Law Guardianship of Minors Domicile and Maintenance Act and in the Matter of the Children’s Authority of Trinidad and Tobago and in the matter of an Application concerning the following unaccompanied minor child who is a national of the Bolivarian Republic of Venezuala,
[16] AG v. Joseph and Boyce.(2006) 69WIR 104 at para 106
[17] The Hononable Mr. Justice Westmin James “The Coming Tide: Protection of the Rights of Refugees in the Commonwealth Caribbean in absence of Legislation.” Seton Hall Journal of Diplomacy and International Relations page 54
[18] Ibid page 57
[19] AG v. Joseph and Boyce: Cal v. Attorney General of Belize Reyes v. R; Minister of Home Affairs v. Fisher,
[20] The Hononable Mr. Justice Westmin James “The Coming Tide: Protection of the Rights of Refugees in the Commonwealth Caribbean in absence of Legislation.” Seton Hall Journal of Diplomacy and International Relations page 58
[21] Claim Number CV2020-04062
[22] Master Christie Ann Morris Alleyne, Court Executive Administrator of the Judiciary of Trinidad and Tobago speaking at the 24th Meeting - JSC National Security - June 15, 2023 - Criminal Justice System
[23] UNHCR PowerPoint Presentation at the Judicial Workshop: International Protection of Refugees in Trinidad and Tobago held on the 2nd and 3rd August, 2021
[24] “Justice Through a Gendered Lens, Gender Equality Protocol for Judicial Officers, How do we as judicial officers embark upon gender sensitive adjudication”, page 54;
[25] Established Under the Children Authority Act Chap 46:10 to act as the guardian of the children of Trinidad and Tobago. This Act gives power to the Children's Authority to begin to deliver on its mandate to care, protect and rehabilitate children who are at risk, or have been victims of abuse or neglect.
[26] Case number C-North-AP-4399-2022-1 In the Matter of the Family Law Guardianship of Minors Domicile and Maintenance Act and in the Matter of the Children’s Authority of Trinidad and Tobago and in the matter of an Application concerning the following unaccompanied minor child who is a national of the Bolivarian Republic of Venezuala,
[27] C-NORTH-AP 2879-2020-1 The Children’s Authority of Trinidad and Tobago v. Ministry of Health and Northwest Regional Health Authority;