Abstract
FGM is one of the most serious global health and human rights problems for millions of women and girls. This article contributes to the in-depth analysis of the legal, health, and social implications of FGM with international and domestic legislation, jurisprudence, and human rights instruments. This paper tries to delve into the various impediments that come in the way of ending FGM: cultural sensitivity, laxity in law enforcement, and limited access to healthcare. This book, accompanied by other contemporary literature, judiciary precedents, and data from statistics reviews, reports on the predicaments posed by FGM. The paper outlines the international human rights treaties that are applicable and the relevant legislative legislation in resolutions where either there is wide prevalence of FGM or large diaspora groups living in these areas perpetuate this form of violence against women. In addition, landmark legal cases have been reviewed to ascertain the established guidelines of the courts in the interpretation and actual application of anti-FGM laws.
The study reveals a discrepancy between the legal prohibition and actual abolition of FGM. This therefore underlines the fact that diversification from the legal-based strategy is further needed. The paper proposes solutions to fight FGM worldwide by strengthening legislative protections, community engagement, and health services. It is going to be accomplished by harmonization of legal frameworks according to international standards, enactment of extraterritorial legislation, specialized training to professionals, and aid to the community-led projects. Although significant steps have been taken toward developing the legislative frameworks on FGM, major challenges persist regarding how to apply laws in a manner that will really work to eliminate such an entrenched practice. The paper is thus calling for long-term collaborative, culturally sensitive measures to close the gap between prohibition in law and change in society, the ultimate goal being that of eradication of FGM while saving all women’s and girls’ most fundamental rights and dignity.
Keywords
Female Genital Mutilation, Human Rights, Global Health, Cultural Practices, Legal Framework, Gender Equality.
Introduction
FGM is defined as the partial or total removal of external female genitalia for reasons other than medical. [1]Enshrined in cultural, religious, and social reasons, it affects about 200 million women and girls worldwide.[2] FGM is rated as a form of violation of human rights and gender-based violence that has potentially serious consequences for a person who has undergone it on their physical, emotional, and sexual health.[3]
FGM thus gives rise to Thorny legal and ethical issues at the junction of cultural traditions, personal autonomy, and universal human rights. While in most cases FGM is practiced in Africa, it is in the Middle East and Asia, but due to globalization and migration, it turned into a global challenge to legal systems and health professionals worldwide. [4]Hence, the research paper will review FGM from both legal and human rights perspectives by analyzing present international and domestic legal frameworks and case laws, as well as problems in adopting effective measures for eradicating the practice. This paper, through the elaboration of the heterogeneous nature of FGM with respect to its health effects, social consequences, and legal intricacies, will further add to the debate on strategies for abolishing FGM while being sensitive to cultural feelings.
Research Methodology
This study takes a mixed-methods approach, integrating qualitative and quantitative research approaches and doctrinal method of study to give a thorough examination of FGM as a worldwide health and human rights issue.
Review of Literature
Female genital mutilation literature ranges from law and human rights to public health and ethnography. This paper reviews the key publications that have contributed to our evolving understanding of FGM as a legal and human rights issue.
Dorkenoo provides a detailed description of FGM, its cultural context, and the early efforts made toward eradicating the practice. [5]Her work initiated a framework for understanding FGM as a human rights violation that in turn had an impact on further research and policy debates.
Rahman and Toubia provide an overview of the various legislation dealing with FGM in different countries. [6]Their work underlines the complexity of legislating against culture and the role of community involvement in eradication attempts. Shell-Duncan and Hernlund present a very good overview of the whole issue of FGM, avoiding simplicism and outlining culturally sensitive methods for eradication.[7]
In the legal field, Banda sheds light on women’s rights and their interaction with traditional cultures and legal institutions within which they operate in Africa, the most prevalent location for FGM. [8] Recently, Johansen etal. Fleshes out data about health consequences caused by FGM thus justifying legal intervention based on public health concerns.[9] These, amongst others, set out a broad foundation on how to understand FGM vis-à-vis the complex interaction of legislation, human rights, and cultural tradition.
Method
The effectiveness of these international and domestic legislative attempts to eliminate FGM, along with other implementation problems, shall also be examined.
The major international human rights instruments related to the theme of FGM were firstly analyzed, viz:
- The Universal Declaration of Human Rights, 1948
- The Convention for the Elimination of All Forms of Discrimination against Women, CEDAW, 1979
- The Convention on the Rights of the Child, CRC, 1989
- The African Charter on Human and Peoples’ Right, Banjul Charter, 1981
- The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Maputo Protocol, 2003
These tools form a basis for the perception of FGM as a violation of fundamental human rights, such as the right to health, to bodily integrity, and to freedom from discrimination. [10]This study assesses domestic laws in high-prevalence FGM countries or major diaspora countries where it is practiced. Key jurisdictions include:
- Egypt: Law No. 78 of 2016, amends the Penal Code to prohibit FGM.[11]
- Kenya: Prohibition of Female Genital Mutilation Act, 2011.[12]
- United Kingdom: Female Genital Mutilation Act 2003.[13]
- United States: The Federal Prohibition of Female Genital Mutilation Act of 1995.[14]
Several important instances are reviewed to understand judicial interpretations and practical applications of anti-FGM laws:
- Egypt v. Raslan (2015): This case represented the first successful prosecution under Egypt’s anti-FGM statute, with a doctor convicted of practicing FGM.[15]
- R vs. N (Female Genital Mutilation) [2019]. EWCA Crime 984 (UK): This case discussed the concept of FGM under UK law and the difficulties in prosecuting FGM cases.[16]
- United States v. Nagarwala (2018): This case called into question the validity of a US federal legislation outlawing FGM, sparking debate over the boundaries of federal jurisdiction in regulating the practice.[17]
- The State v. Aisha Kwamboka (2021) (Kenya): This case illustrated the applicability of Kenya’s anti-FGM statute, as well as the role of local courts in implementing legislation against cultural practices.[18]
These cases shed light on the practical obstacles of enforcing anti-FGM legislation, such as evidence concerns, cultural defenses, and jurisdictional questions.
International human rights organizations have tackled FGM, concentrating on the three main factors.
- The CEDAW Committee makes general suggestions and concludes with the following observations:
The Committee for the Elimination of Discrimination Against Women (CEDAW Committee) has repeatedly tackled FGM in its work: - General Recommendation No. 14 (1990) expressly urged States Parties to implement adequate and effective measures to cease the practice of FGM.[19]
- General Recommendation No. 19 (1992), FGM is a form of violence against women.[20]
General Recommendation No. 35 (2017) revised and enlarged on No. 19, emphasizing that FGM is a violation of women’s rights and should be illegal.[21]
The CEDAW Committee consistently recommends States to increase efforts to abolish FGM, including via legislation, awareness-raising, and victim support.[22]
- Reports of the UN Special Rapporteur on Violence Against Women:
The Special Rapporteur has addressed FGM in many reports:
- Rashida Manjoo’s study from 2015 identified FGM as a harmful practice that infringes women’s rights to health, security, and bodily integrity.[23]
- In her 2018 study on migration-related violence against women, Dubravka Šimonović stressed the importance of protecting asylum seekers and refugees from FGM.[24]
These publications give an in-depth study of FGM as a human rights violation and include suggestions for nations to stop the practice.
- Resolutions by the UN Human Rights Council:
The Human Rights Council has issued many resolutions against FGM.
- Resolution 27/22 (2014) encouraged nations to denounce all harmful practices against women and girls, particularly FGM.[25]
- Resolution 38/6 (2018) called for increased worldwide efforts to eliminate FGM.[26]
Resolution 44/16 (2020) emphasized the need of strengthening anti-FGM efforts and providing assistance to those affected.[27]
These resolutions represent a growing worldwide consensus on the need to end FGM while also providing guidance on state commitments.
Analyzing these sources numerous essential themes:
- FGM is recognized as a significant human rights violation and a form of gender-based violence.
- Emphasis is placed on the importance of holistic measures that include legislation, education, and community participation.
- Call for more effective data gathering and monitoring of FGM prevalence and eradication activities.
- Recognizing the global character of FGM and the necessity for international collaboration.
Support for survivors and those at risk of FGM is emphasized.
This assessment of how international human rights authorities have treated FGM provides an important foundation for understanding the worldwide reaction to the practice, as well as nations’ duties under international human rights law.
Suggestions
In view of the foregoing analysis of legislative frameworks, case laws, and human rights accords, the following recommendations are hereby made to increase efforts to eliminate FGM:
Harmonization of Legal Frameworks:
Countries should therefore be able to harmonize their local legislations with the international human rights norms in regard to FGM.[28]
Countries should establish legislation with extraterritorial effect for the prosecution of FGM committed by or against their nationals, considering its international character. The experience from the UK is that the Female Genital Mutilation Act 2003 criminalized this practice, even if performed outside the country, and thus it is a good model for legislation of this nature.[29]
Specialized training programs for judges, attorneys, law enforcement officers, and healthcare personnel will increase their degree of awareness of FGM, and thus they will be able to identify effectively the cases of FGM, report, and react to them effectively.[30]
One has to take up community-based initiatives in order to eliminate the root causes of FGM; the legal measures alone cannot help. In other words, one has to support grass-roots groups, religious and community leaders, who must initiate comprehensive education campaigns about health risks and legal implications of FGM.[31]
Governments and international organizations should invest in comprehensive data gathering techniques, not only to reliably quantify the prevalence of FGM but also to track intervention success. Such data will aid evidence-based decision-making processes and resource allocation.[32]
Healthcare systems need to integrate prevention and care against FGM within the existing services, like maternal and child health programs.[33]Thereafter, this approach could facilitate the identification of vulnerable females and provision of support for survivors.
To entertain asylum protections, countries should further develop clear standards for the adjudication of claims based on the risk of FGM. In this manner, women and girls at risk from this practice will be afforded appropriate protection under international refugee law. [34]
This may include best practice, intelligence sharing, and even resources in instances where the global character of FGM should be addressed in view of cross-border FGM.
All victims of FGM need attending with medical treatment, psychiatric therapy, and social reintegration. [35]
Medical treatment, psychiatric therapy, and social reintegration programs should be provided to survivors of FGM. Legal aid should also be provided to the survivors in the pursuit of justice.[36]
Technology may improve prevention and response by employing smartphone applications in reporting incidents of FGM and telemedicine in rural areas.Countries that apply such recommendations can only succeed in building a comprehensive framework for the prevention of FGM, be it on legal or social levels in this very complex issue.
Conclusion
FGM is “entrenched a global health and human rights problem, fixed within local customs and social norms” This study established that there has been emphasis of the establishment of legislative frameworks that aims at redressing FGM. However, big challenges remain in delivering successful implementation of these laws and halting deeply-set practices. The review of international accords, state legislation, and landmark cases makes a very strong case for a growing global consensus toward its elimination. The legal prohibition is in place, but the gap between this and actual elimination is enormous. The challenges raised by FGM are cultural sensitivity concerns, insufficient law enforcement, and restricted access to healthcare; hence, multidimensional strategies that go beyond a simple legal ban are needed. The recommendations made are the harmonization of legislative frameworks, increasing community participation, strengthening health responses, and promotion of international collaboration. Solutions recognize that eradicating FGM would require rigorous legislation but also wide-ranging social, educational, and health activities.
This paper has emphasized the cultural discourse and activities led by the community themselves as most important in changing perceptions about FGM. Successful eradication must, therefore, achieve a delicate balance between respect for cultural diversity and the protection of fundamental human rights, especially those related to physical integrity and health for women and girls. Increased migration throughout the world is seeing FGM being transferred to countries where previously it had been rare, thereby increasing the potential need for concerted international measures. Countries should collaborate on best practice, cross-border enforcement, and thorough support for survivors and those at risk. On FGM, though the framework for law and human rights has been a tremendous step in combat, there is a challenge to translate these principles into grass-roots practice. Down the line, however, the fight should zero in on rectifying the missing link: bridging the prohibition by law and social action; community ownership in leading the fight for the abolition of FGM; and safety for women and girls wherever they are in the world from the hellish practice. This is possible only through sustained, collaborative, and culturally sensitive efforts by the global community.
Phani Priya Kondala
BBALLB (Hons.)
Alliance University, Bangalore.
[1] World Health Org., Female Genital Mutilation (Feb. 3, 2020), https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation.
[2] UNICEF, Female Genital Mutilation (2020), https://data.unicef.org/topic/child-protection/female-genital-mutilation/.
[3] Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979, 1249 U.N.T.S. 13.
[4] Sara Johnsdotter & Birgitta Essén, Cultural Change after Migration: Circumcision of Girls in Western Migrant Communities, 32 Best Prac. & Rsch. Clinical Obstetrics & Gynecology 15 (2016).
[5] Efua Dorkenoo, Cutting the Rose: Female Genital Mutilation: The Practice and its Prevention (1994).
[6] Anika Rahman & Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (2000).
[7] Female “Circumcision” in Africa: Culture, Controversy, and Change (Bettina Shell-Duncan & Ylva Hernlund eds., 2000).
[8] Fareda Banda, Women, Law and Human Rights: An African Perspective (2005).
[9] R. Elise B. Johansen et al., What Works and What Does Not: A Discussion of Popular Approaches for the Abandonment of Female Genital Mutilation, 2013 Obstetrics & Gynecology Int’l 1.
[10] G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).
[11] Law No. 78 of 2016 (amending the Penal Code) (Egypt).
[12] Prohibition of Female Genital Mutilation Act (2011) (Kenya).
[13] Female Genital Mutilation Act 2003, c. 31 (UK).
[14] Federal Prohibition of Female Genital Mutilation Act of 1995, Pub. L. No. 104-208, § 645, 110 Stat. 3009-708 (1996) (codified at 18 U.S.C. § 116).
[15] Equality Now, Egypt: First Doctor Convicted of FGM (Jan. 26, 2015), https://www.equalitynow.org/egypt_first_doctor_convicted_of_fgm.
[16] R v. N (Female Genital Mutilation) [2019] EWCA Crim 984 (Eng.).
[17] United States v. Nagarwala, 350 F. Supp. 3d 613 (E.D. Mich. 2018).
[18] Republic v. Aisha Kwamboka, (2021) eKLR (Kenya).
[19] Comm. on the Elimination of Discrimination against Women, General Recommendation No. 14: Female Circumcision, U.N. Doc. A/45/38 (1990).
[20] Comm. on the Elimination of Discrimination against Women, General Recommendation No. 19: Violence against Women, U.N. Doc. A/47/38 (1992).
[21] Comm. on the Elimination of Discrimination against Women, General Recommendation No. 35 on Gender-Based Violence against Women, Updating General Recommendation No. 19, U.N. Doc. CEDAW/C/GC/35 (2017).
[22] Comm. on the Elimination of Discrimination against Women, Concluding Observations (various countries and years).
[23] Rashida Manjoo (Special Rapporteur on Violence against Women), Rep. of the Special Rapporteur on Violence against Women, Its Causes and Consequences, U.N. Doc. A/HRC/29/27 (2015).
[24] Dubravka Šimonović (Special Rapporteur on Violence against Women), Rep. of the Special Rapporteur on Violence against Women, Its Causes and Consequences on Violence against Women in the Context of Migration, U.N. Doc. A/HRC/38/47 (2018).
[25] Human Rights Council Res. 27/22, U.N. Doc. A/HRC/RES/27/22 (Sept. 26, 2014).
[26] Human Rights Council Res. 27/22, U.N. Doc. A/HRC/RES/27/22 (Sept. 26, 2014).
[27] Human Rights Council Res. 44/16, U.N. Doc. A/HRC/RES/44/16 (July 23, 2020).
[28] Too Many, the Law and FGM: An Overview of 28 African Countries (2018).
[29] Female Genital Mutilation Act 2003, c. 31 (UK).
[30] World Health Org., Care of Girls and Women Living with Female Genital Mutilation: A Clinical Handbook (2018).
[31] UNICEF, Female Genital Mutilation/Cutting: A Statistical Overview and Exploration of the Dynamics of Change (2013).
[32] Population Reference Bureau, Female Genital Mutilation/Cutting: Data and Trends (2017).
[33] World Health Org., ITS Guidelines on the Management of Health Complications from Female Genital Mutilation (2016).
[34] U.N. High Comm’r for Refugees, Guidance Note on Refugee Claims Relating to Female Genital Mutilation (2009).
[35] European Inst. for Gender Equal, Estimation of Girls at Risk of Female Genital Mutilation in the European Union (2018).
[36] End FGM European Network, Implementing the Istanbul Convention: Strategies for Ending Female Genital Mutilation (2016).