Female Genital Mutilation in International Law: Approaches of International and Regional Legal Frameworks.

• Author: Crews, Ruby

1. INTRODUCTION

   Sasha, a 22-year-old Kenyan woman, found herself cast aside by her husband and rejected by her society. (1) At the age of eleven, Sasha had developed vaginal obstetric a fistula after giving birth to her first child. (2) A vaginal obstetric fistula occurs "when a hole (fistula) forms between either the vagina and rectum (rectovaginal fistulas-RVF) or between the vagina and bladder (vesicovaginal fistula--WF) following prolonged childbirth complications." (3) Sasha's fistula formed when her baby became stuck in the vaginal canal; there was no path for the baby exit because Sasha was subjected to severe female genital mutilation (FGM) at a young age. (4) Her vaginal opening had been sewn closed, making sexual intercourse and childbirth incredibly painful and dangerous. (5) After six days of labor, the baby was stillborn, and Sasha awoke from her ordeal incontinent and ostracized. (6) The genital mutilation procedure that was a rite of passage in her tribe both initiated her into womanhood at nine years old, and led to her being cast out just two years later. (7)

   On the other side of the world, in the United States, a 34-year-old Indian woman named Mariya did not know she had experienced FGM until she was a teenager. (8) Unlike Sasha, her procedure had not been invasive. (9) Her clitoris had been cut off by an elderly aunt when she and her family were on a vacation in India. (10) The scarring had been minimal, and the rest of her childhood was happy and she had grown up thinking the ritual was just a part of her religion. (11) She had read about FGM happening in Africa and severe cases like Sasha's, but did not consider herself a victim of the same practice. (12) After realizing that she too had experienced genital mutilation, albeit a less severe form, she devoted her life to ending the practice both in the US and abroad. (13)

   Sasha and Mariya represent the two extremes of FGM and the many ways in which it is practiced around the globe. In all its forms, it has been determined to be a violation of human rights and there is a global push to end all forms of the practice. The reasons behind the practice of FGM vary between cultures, communities, and regions. (14) Stemming from deeply embedded socio-economic factors, FGM is generally motivated by beliefs surrounding femininity, women's sexual life, and social ideals surrounding modesty and cleanliness. (15) However, the actual process of eliminating this practice, which spans cultures and continents, continues to be fraught with challenges.

   This paper will look at international frameworks and regional efforts which are guiding the mission to eliminate the practice globally. The paper will then consider the challenges to monitoring and enforcement of laws prohibiting the practice including arguments that it is a religious practice which is protected by international law. Finally, the paper will consider the manner in which FGM is considered within the context of international protection.

2. WHAT IS FGM?

   FGM "refers to all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons." (16) FGM has also been called Female Genital Cutting or Circumcision (FGC) in order to remove stigma from women who have experienced it or groups that practice it, (17) but for the purposes of this paper the term FGM will be used in line with the language adopted by the U.N. (18) Globally, between 100 and 140 million girls and women have undergone one of these procedures and around 3 million others are at risk of some type of FGM. (19) FGM is a global issue, having been documented in 28 African countries, a number of countries throughout South-East Asia and the Middle East, and increasingly in immigrant populations in the United States and Europe. (20) The practice is not exclusive to any specific religion and is practiced across all social and economic societal strata, although countries where it is most prevalent generally have young populations, high fertility rates, and high child and maternal mortality rates. (21)

   In order to define and monitor FGM practices around the world, the World Health Organization (WHO) split types of FGM into four categories:

   Type 1: Partial or total removal of the clitoris and/or prepuce (clitoridectomy).

   Type 2: Partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (excision).

   Type 3: Narrowing of the vaginal orifice with creation of a covering seal by cutting and appositioning the labia minora and/or/the labia majora, with or without excision of the clitoris (infibulation).

   Type 4: All other harmful procedures to the female genitalia for non-medical purposes, for example: pricking, piercing, incising, scraping and cauterization. (22)

   Types I and II are the most common and make up for approximately 80% of global cases, with the extreme version of infibulation making up less than 15% of reported cases. (23) However, all types have been documented as having enduring consequences to women's health. FGM has long lasting physical and psychological effects on women and girls. Immediately following the procedure, victims can experience hemorrhaging, shock, and issues related to urinary tract infections and incontinence. (24) Life-long complications can include obstruction of vaginal opening due to scar tissue, vestiovaginal and rectovaginal fistulas, painful intercourse and child birth, and chronic infections of the pelvis. (25) Studies have also shown increased child mortality rates for children born to women who have experienced FGM. (26)

3. INTERNATIONAL LEGAL FRAMEWORKS

   All forms of FGM are considered to violate an array of overlapping human rights including: the right to non-discrimination, protection against physical and mental violence, a right to "the highest attainable standard of health," and in some of the worst cases the right to life. (27) While FGM is not explicitly mentioned in any of the early foundational human rights documents drafted by the U.N., many of these documents have been found to serve as contextualization for the modern effort to eradicate FGM on an international human rights level. (28)

   1. The Convention on the Elimination of All Forms of Discrimination Against Women

      The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) defines discrimination against women as:

      "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." (29)

      This definition includes gender based violence, which is violence experienced by a woman simply because she is a woman. (30) Gender based violence impairs women's enjoyment of fundamental rights and freedoms, including the "right to the highest standard of physical and mental health." (31) FGM is a type of gender based violence that has significant physical and mental health impacts and therefore is deemed to fall within this definition of discrimination. (32) In many societies where FGM is practiced and is considered a rite of passage it can stand between women and girls and their access to education, community and economic participation, and marriage. (33) In order to eliminate practices that prevent women from fully participating in society because of their gender, countries that are party to CEDAW must:

      "modify the social and cultural patterns of conduct ... with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women." (34)

      This call to action has been expanded upon in subsequent documents adopted by the Committee on the Elimination of the Discrimination Against Women (Committee). (35) General recommendation 19, adopted by the Committee in 1992, establishes a set of guidelines specifically targeted at encouraging governments to take concrete steps towards elimination of the practice. (36)

   2. The Convention on the Rights of the Child

      The other foundational document that is viewed as wholly encompassing FGM as a human rights violation is the Convention on the Rights of the Child (CRC). FGM is in some cases considered to be a child specific form of gender violence as it disproportionately affects young girls. (37) The CRC puts national governments in charge of ensuring that children's rights are protected on a national level and that the "best interests of the child" are promoted. (38)

      Article 24 (the right to health) of the CRC requires governments to "take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children." (39) FGM was the main issue discussed during the drafting of this article and is considered to be the most serious 'traditional practice' encapsulated by this article. (40) Therefore, despite not being directly mentioned, discussions leading up to the adoption of the convention made it clear that the intention was to address FGM without ignoring other traditional practices that may affect children.

      Article 19 (protection against abuse and neglect) of the CRC guides governments to create social programs and reporting mechanisms to protect children who have experienced "maltreatment," including protection by courts if necessary. (41) This article is considered to encompass FGM, however there has been little official commentary or interpretation as to the extent of what the articles encompass. (42) The importance of this article is that it expands responsibility for children beyond their family or immediate community, which is where much of the violence or exploitation of...