3:
The Refugee Convention protects certain individuals and groups from ‘being persecuted’. No further direct definition is offered in the text of the Convention and the question of what might constitute ‘being persecuted’ has proven to be a challenging one to answer. The ambiguity can be regarded as constructive in nature: from the travaux preparatoires, we know that the drafters of the Refugee Convention had in mind that ‘being persecuted’ involved a high level of harm but they declined to lay down a more precise meaning. As an early scholar of refugee law, Grahl-Madsen, put it, ‘[i]t seems as if the drafters have wanted to introduce a flexible concept which might be applied to circumstances as they might arise; or, in other words, that they capitulated before the inventiveness of humanity to think up new ways of persecuting fellow men’. Goodwin-Gill makes the same point, saying ‘[t]here being no limits to the perverse side of human imagination, little purpose is served by attempting to list all known measures of persecution’. Enumeration of the various horrible acts that might amount to ‘being persecuted’ – or those slightly less horrible acts that might not – becomes self-evidently undesirable when seen in this light. A list may be simple and easily comprehended, but it is too rigid in that it fails to allow for context and is incapable of evolving over time. In 1979, the UNHCR Handbook stated that ‘[t]here is no universally accepted definition of “persecution”, and various attempts to formulate such a definition have met with little success’.
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