Guest lecture Mr. Niels-Erik Hansen at Leiden University
On the 12th of April 2019, I attended an inspiring guest lecture of Mr. Niels-Erik Hansen at Leiden University. He gave a lecture about the protection of women and children from prosecution in their countries of origin. He shared his experiences in relation to cases before UN committees (individual complaints procedures) and the European Court of Human Rights.
Mr. Niels-Erik hansen
Mr. Niels-Erik Hansen is a well-known attorney in the field of human rights law, based in Copenhagen, Denmark. One of his cases (that lasted for 13 years) resulted for example in a positive change of Denmark’s domestic law, since HUDOC decided that Denmark’s rules for family reunification discriminate against citizens not born in Denmark. More information about his work can be found on his website.
Introduction of the lecture
Mr. Hansen started the lecture with an anecdote of what prof. Hathaway once told him (quite a long time ago when he was in Canada) about human rights, namely that we have to use human rights as much as possible, but that we – at the same time – should avoid ‘wishful legal thinking.’ He explained that he finds it important to be realistic: “It is important that you do not let your clients think you can do something that is impossible.”
Mr. Hansen continued the lecture by sketching the basic legal framework of non-refoulement, which is the core principle of the UNHCR Refugee Convention. The principle asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom. In addition to the Refugee Convention, this principle is enshrined in Article 3 of the European Convention on Human Rights (the ECHR), as well as article 61 of the Istanbul Convention that has a specific provision in relation for victims of violence against women: “Parties shall take the necessary legislative or other measures to ensure that victims of violence against women who are in need of protection, regardless of their status or residence, shall not be returned under any circumstances to any country where their life would be at risk or where they might be subjected to torture or inhuman or degrading treatment or punishment.” Mr. Hansen explained that other UN Conventions contain similar provisions, for example art. 3 of the Convention Against Torture.
Successful case before CEDAW Committee
Thereafter, Mr. Hansen specified the principle of non-refoulement in relation to violence against women and children. He pointed out that the Convention on the Elimination of all Forms of Discrimination Against Women (hereafter: the CEDAW convention) itself does not explicitly prohibit violence against women. The convention has many provisions on discrimination against women (for example art. 1, 2, 7, 10, 11, 12, 13, 14), but there is no provision on violence against women. However, the Committee on the Elimination of Discrimination Against Women (hereafter: the CEDAW Committee) has taken an important stance against violence against women. He illustrated this with the case of a pregnant Pakistani woman who was denied a residence permit in Denmark and had to return to Pakistan. Back in Pakistan, she was attacked in her house and torched (burned all over) by three men, resulting in severe burns to her torso and arms. When she arrived in Denmark on a visa, she requested family reunification (as her husband had Danish permanent residence permit), but this was denied. The CEDAW committee considered that Denmark should refrain from forcibly returning the woman to Pakistan, because there would be a “real, personal and foreseeable risk of being subjected to severe forms of gender-based violence.” (para. 11a). In the end, the woman received asylum. With this case, Mr. Hansen explained that it was very nice to see that this lady could benefit from the legal effort that he had made with his team.
Child as the principal applicant
Mr. Hansen explained that there is a new trend now in relation to FGM/C cases. More frequently, the child is the principal applicant, instead of the parent(s). This is also mentioned in the UNHCR Guidance Note on Refugee Claims relating to FGM (2009), which says that where a family seeks asylum based on a fear that a female child will be subjected to FGM/C, the child will normally be the principal applicant and a parent can be granted derivative status based on the child’s refugee status. Even when very young, the child may still be considered the principal applicant.
I.A.M. v Denmark
Of course, we also discussed the case I.A.M. v Denmark (CRC 3/2016) before the Committee on the Rights of the Child. This case is groundbreaking, because the committee noted that:
(a) Denmark had failed to consider the best interests of the child when assessing the alleged risk of the daughter to be subjected to FGM/C when returned to Somalia;
(b) the rights of the child cannot be made dependent on the mother’s ability to resist family and social pressures (and that State parties should take measures to protect children from all forms of physical or mental violence);
(c) when a child may be subjected to an irreversible harmful practice such as FGM/C, State parties should follow the principle of precaution and refrain from deporting the child when reasonable doubts exist that the receiving state cannot protect the child against these practices.
The committee therefore decided that Denmark violated the Convention on the Rights of the Child (more specifically art. 3 and 19) and should refrain from deporting the mother and her child to their country of origin. Unfortunately, Denmark didn’t follow the decision of the Committee (as it is not legally binding).
After the lecture, there was time for some questions. I asked Mr. Hansen why he decided to go to the CRC Committee and not the European Court of Human Rights (ECtHR) in the case of the Somali mother who feared for FGM/C of her daughter. He responded that it is more easy to get interim measures at the UN committees than at the ECtHR; that the CRC committee at that moment had not received too many cases, so the procedure at the CRC would be faster; and he hoped to get a more advanced decision. In the end this turned out to be a very good choice!
After the lecture, I was invited for a lunch meeting with Mr. Hansen and Prof. Ann Skelton (member of the UN Committee on the Rights of the Child) to further discuss recent developments in relation to asylum applications and children, as well as the content of an article that we are currently writing with Mark Klaassen (Assistant Professor at the Institute for Immigration Law at Leiden University) Martin Vegter (Defence for Children) and Adriana Bibo (student at the UvA who wrote her bachelor thesis about FGM/C and asylum). We write this article about FGM/C and asylum in the Netherlands, in which we focus on girls and mothers from Guinee. I absolutely enjoyed this discussion, because it is so inspiring to see that Mr. Hansen is truly fighting for those in need of protection. Although sometimes this fight is hard and frustrating, he is in many cases also very successful and paves the way for many more people who are in need of protection.