Females Genital Mutilation: A legal outlook in respect to International Human rights law
A great deal of attention has been received by the practice of female genital mutilation (FGM) at the National and International levels both. One of the most discussed issue is the job should be played by law in against of such activities that are present in the society. With the concept of youths being the driving force of the progress, The United Nations on the occasion of International Day of Zero Tolerance for FGM (6th February,2020) has hailed off a long term goal to end the FGM by 2030 through the campaign of #youthendFGM
Different traditional practices which includes cutting of female genitals is collectively named as Female Genital Mutilation (FGM). Usually between the age of 4 to 12, as a rite of passage, genital cutting was carried out. In some culture, it is performed very early i.e right after the birth and in some it is performed late just before the marriage or after the first pregnancy. The vital role in performance of FGM is played by such traditional practitioner who comes from the family where such procedures are performed on women for generations. The physical and psychological damage that can be caused by FGM is being focused a lot. FGM is recognised internationally as a violation of human rights of women and one of the form of child abuse. Just like other forms of gender-based violence, ‘it constitutes a breach of the fundamental right to life, liberty, security, dignity, equality between women and men, non-discrimination and physical and mental integrity’.
Categories of Female Genital Mutilation
Female Genital Mutilation abbreviated as FGM has been grouped in to four different categories World Health Organisation (WHO):
Type I (generally referred as “clitoridectomy”): The partial or the total removal of clitoris (which is a sensitive, small and an erectile part of the female genitals) and in some very rare case the removal of only the prepuce (the fold of skin surrounding the clitoris).
Type II (generally referred as”excision”): It includes the total or partial removal of the labia minora (the inner folds of the vulva) and the clitoris with or without excision of the labia majora (the outer folds of skin of the vulva).
Type III (generally referred as “infibulation”): the surgical removal of part or whole of the external genetalia and vaginal opening being stitched or narrowed.
Type IV all the other procedures that involves the total or partial removal of female external genitalia for non therapeutic, cultural or any other reason.
Causes of Female Genital Mutilation
Custom and Traditions: Although not supported by any religious belief many communities by continuing the tradition practice FGM to maintain their custom and preserve their cultural identity. The maintenance and the advancement of the spirit of more excellence, purity and precluding indiscrimination in the the culture are the essential backing of the custom of FGM. Lady not circumcised are considered unsatisfactory for marriage in many countries where there are customary conviction of FGM practices.
Interestingly 'Tahara' is an Arabic word for FGM which means 'to purify'. FGM is practiced not only in African regions but also in other regions as well, for example in India it is practiced among community of Dawoodi Bohra Muslim with the term 'khatna' for FGM. The Bohra High priest Syedna calls the external part of female genitalia as haram ki boti, or sinful flesh which must be cut to preserve female chastity.
Sexuality of women: By reducing the sexual fulfilment of women, attempts have been made by the society to control women's sexuality. It is supposed to be unappeasable if parts of genitalia, especially the clitoris are not taken out, FGM is performed as an approach to control the women’s sexuality. It is considered as guarantee for the virginity of women before marriage and her loyalty thereafter. It ensures to expand male sexual delights.
Religion: Northern Islam nor Christianity endorse FGM, it is a cultural not religious practice. While Jews, Christians, Muslims and Members of other indigenous religions in Africa practice FGM but the fact is none of these religions require it.
Social Pressure: In a network where circumcision of women is done, then the family, relatives create an environment where this act turns into prerequisite condition for social acknowledgment. Irrespective of laws in against, it is practiced as a norm. Egypt, for example where FGM is illegal but is still practiced in many parts of the country. . In 2008, UNICEF estimated that 91% of married Egyptian women aged between 15 and 49 had been mutilated – 72% of them by doctors.
Reasons of Hygiene: FGM is done in some of the societies for the aesthetic causes. The outer female parts are removed for the advancement of cleanliness and to give stylish charm or allurement as they are viewed as filthy, unattractive and unclean.
Prevalence of Female Genital Mutilation worldwide
According to the reports of WHO, the practice of FGM is mostly prevalent in 29 countries of Africa and Middle East. Per year at least two million women are at risk of going through some form of the procedure. It is important to note that, the prevalence varies from one region to another. For example, the prevalence rate is 92% in Mali, compared to 28% in Senegal. Ladies who have gone through FGM additionally live in African migrant networks and also in for North America, Europe, Australia, and New Zealand. Legislations have been passed to tackle FGM in many African countries like Central African Republic, Egypt, Ghana, Guinea, Kenya, Uganda, etc. There are also some countries like Ethiopia, the Gambia, Liberia, Sierra Leone, Somalia and Sudan which do not have specific legislation or provisions to address the issue of FGM. In Guinea Bissau and the Democratic Republic of the Congo, there is no specific legislation for FGM but their penal provisions like penal code Articles 46-48 on ‘ intentional bodily injury' in Democratic Republic of Congo may be applicable.
Stance of international Human Rights Law towards Female Genital Mutilation
There is abuse of Human rights (ensured in various global and territorial instruments), of the young women and girls going through genital Mutilation. These rights are:
The Right to life and to physical integrity
Basic freedom includes right to life and physical respectability. Number of international instruments, including civil and political rights agreement protects the right to life. Right to life is interpreted by Human Rights Committee (body that checks the implementation of civil and political rights agreement) as requiring government to take 'positive measures' to preserve life.
The Right to physical integrity is the right to have freedom from torment, torture to one own self and also covers various extensive freedom standards. It also includes the independence of individual for choices in issues regarding his/her own body. An unapproved attack on an individual’s body speaks of the violation of this right.
Right to be free from gender discrimination
Numerous International Human Rights instruments guarantee this right. Article 1 of CEDAW defines gender discrimination with the broad view, it says, “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.African protocol on women's Rights explicitly recognise the impact of FGM on women’s human rights, it requires all state parties prohibit and condemn 'all the activities which are harmful and affect the human rights of women negatively and also contrary to recognised international standards'.
The Right to health
Article 12 The economic, social and cultural rights covenant entitle the individuals to enjoy the physical and mental health in the highest attainable standard. Recommendations to the government by CEDAW (Committee on elimination of Discrimination against women) in its recent general recommendation on women and health, to devise such policies which take into account the needs of adolescents and girls exposed to traditional practices like FGM. Severe consequences on women’s physical and mental health is often seen due to complications associated with FGM.
The Right to child
FGM is commonly performed on the girls between the age of four and twelve, when they are not much aware or educated to give their assent with the careful thought therefore FGM has been viewed as the infringement of privileges of children. The Children’s Rights Convention requires States Parties to take “all suitable effective measures to abolish traditional practices that are prejudicial to the health of children”.The concern to stop traditional practices 16 Female Genital Mutilation that are harmful to health is also evident in the African Charter on the Rights and Welfare of the Child (the African Charter), which was adopted by the Organization for African Unity in 1990.
Onus of International Human Rights instruments upon the Government in concern of FGM
It is argued that government actions to prevent the practice of FGM is an intolerable intervention, since the right to enjoy one's own culture and to choose one's own religion is not the subject matter of government intervention. Any cases upheld by International Human Rights law, doesn’t hold the view to restrict these rights to secure individual common liberty, security and wellbeing. A legislature which Regards the privileges of minorities and the right to culture and opportunity of any religion and at the same prohibiting FGM is required to be concluded. The obligation of government to guarantee the full range of rights to women is the basic liberal way to stop FGM.
Certain United Nations conferences adopted many documents like, Female Genital Mutilation Vienna and plan of action, the programme of action of the international conference on population and development, etc. Articles 2 and 5 of CEDAW affirms the duty of modification of customs which are discriminatory against women.
The African Charter and the Children's Rights convention establish the duty to abolish the practices that are harmful to children.
The Economic, Social and Cultural Rights Covenant and number of international and regional conventions articulate the duty to ensure health care and health information accessibility. The government's obligation to provide health case is characterized as the duty to respect, protect and fulfil that right in the general recommendation of the CEDAW Committee on women and Health. When FGM is performed upon a child or a woman who has not given informed consent in a public hospital by the physician, then government is incriminated in the practice that interferes the right to health care for women, in violation of their duty to respect that right.
Universal Declaration defines the duty to ensure a social order in which rights can be realised, which states, “everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” This provision shows that the social and economic factors that prevent some sections of the society to exercise their human rights are needed to be addressed by the government as their duty.
Due diligence is required to be exercised by the government in investigating, preventing and punishing violation of human rights by both private persons and government factors.
Female Genital Mutilation (FGM) under the international law is the violation of human rights, torture and an extreme form of discrimination and violence against women and girls. It is most often practiced among the girls between infancy and age of 15, adult women are occasionally subjected. With no health benefits, FGM is the violation of rights related to equality, life, security, dignity, etc. Accountability of government for their inaction in response to FGM can be raised by advocates by invoking human rights standards.
Combination of legal measures with social measures can be used for effective interventions.
A sea change in individual and societal thinking is required for the elimination of FGM in all of the abovementioned countries and situations. And to effect such profound social change, government action of the countries involved, should and must take multiple forms and actively be part of a long-term process of promoting social justice for all, particularly women.
B.A.LL.B 2nd year
University college of law, MLSU Udaipur Rajasthan.