Research Handbooks in International Law series
Edited by Vincent Chetail and Céline Bauloz
Chapter 19: Persecution: Towards a working definition
It is time we abandon the notion that persecution cannot be defined and recognize that in fact much of the work to achieve such a definition has already been done. It is oft said that the drafters of the 1951 Geneva Convention Relating to the Status of Refugees and the 1967 Protocol did not try to define persecution because everyone knew what it meant. The term's first appearances in treaty provisions - in the 1946 International Refugee Organization Constitution, the 1948 London Charter of the International Military Tribunal, and in Article 45(4) of the 1949 Geneva Convention Relating to the Protection of Civilian Persons in Time of War - would appear to bear that out. But when the concept of persecution (or more precisely, 'being persecuted') eventually took its place in the text of Article 1A(2) of the 1951 Convention, the reason for not defining it was not seemingly this but was rather because of the fear that to define it would be to restrict the scope of something intrinsically protean. In the oft quoted words of Grahl-Madsen, '… [the drafters] capitulated before the inventiveness of humanity to think up new ways of persecuting fellow men'. That fear, and the generally minimalist provisions of Article 1A(2) as a whole, leaving indeed all its key terms undefined, proved a mixed blessing. On the one hand, it meant that what had begun as a shorthand for statist and (enumerated) group-based iniquities already inflicted could over time broaden out to encompass non-state and individualised iniquities yet to be inflicted.
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