Knowing Persecution When We See It: Non-State Actors and the Measure of State Protection

Whether to grant asylum to claimants who are victimized by non-State actors is one of the thorniest questions in refugee law, particularly in Canada. Numerous questions have arisen around how to measure State protection in such circumstances. The result is a convoluted array of legal determinants - a situation that may be placing some claimants at risk. This article attempts to forge a more accessible framework of analysis for non-State actor claims. The suggested framework restores the absence of 'State protection' to its traditional role within the refugee definition of the 1951 Refugee Convention - as one prong of a test for persecution, not a stand-alone criterion for refugeehood. Accordingly, it is suggested that decision makers approach non-State actor claims as simply an assessment of whether the situation is one of 'persecution', a term that has been defined by leading scholars. By applying these definitions of persecution to typical refugee claim scenarios, it is demonstrated that a persecution-centred heuristic in non-State actor claims provides a clearer and more principled framework of analysis - one that gravitates towards stable and measurable criteria for assessing State protection.