Amid Cultural Relativism and Human Rights Universalism. the Case of Fgm/C: a Cultural Practice and a Human Rights Violation

AMID CULTURAL RELATIVISM AND HUMAN RIGHTS UNIVERSALISM. THE CASE OF FGM/C: A CULTURAL PRACTICE AND A HUMAN RIGHTS VIOLATION.

Spina Aleksandra

Snr 2001765 Anr 277328

July 2017

Amid cultural relativism and human rights universalism. The case of FGM/C: A cultural practice and a human rights violation.

To defend in front of Supervisor Dr. A.K. Meijknecht Second Reader Dr. N.M.C. Jägers On 22 July 2017 At 13:00

LL.M. International and European Law Faculty of Law Tilburg University The Netherlands Acknowledgments Table of Contents List of Acronyms Chapter I. Introduction 1-5 1.1. Introduction. 1 1.2. Structure. 4 1.3. Methodology. 5 Chapter II. Terminology 6-13 2.1. Introduction. 6 2.2. Definition. 6 2.3. Types of FGM/C 8 2.4. Elements. 9 2.5. Conclusions. 12 Chapter III. Theoretical Challenges 14-29 3.1. Introduction. 14 3.2. Human rights and Human Rights Universalism. 15 3.3. Cultural rights and Cultural Relativism. 1 6 3.4. Historical perspective. 19 3.5. FGM/C in the context of Religious Relativism. 25 3.6. Conclusions. 28 Chapter IV. Universalism in practice: the International Legal Framework 3 0 - 4 0 4.1. Introduction. 30 4.2. International Legal Framework. 30 4.3. Convention on the Elimination of All Forms of Discrimination against Women. 31 4.4. The UN Declaration on the Elimination of Violence against Women. 33 4.5. The Convention on the Rights of the Children. 33 4.6. The African Charter on Human and Peoples’ rights. 34 4.7. Maputo Protocol. 35 4.8. African Charter on the Rights and Welfare of the Child. 36 4.9. The Convention Relating to the Status of Refugees. 37 4.10. Conclusions. 40

Chapter V. Cultural Relativism in Practice: the Domestic Legal Framework 41-64 5.1. Introduction. 41 5.2. No legal measures. 42 5.3. Monologue measures exclusively. 45 5.4. Monologue and Dialogue measures concurrently. 54 5.5. Conclusions. 63 Chapter VI. Conclusion 65-70 Bibliography

Acknowledgments Her name was Alem. Whether it was a first or last name, is unknown and will possibly remain one of the myriads of unanswered questions that surrounded her existence. I met her at the age of six when she moved alone in our small Italian city in a fateful summer of 2001. She was old and jaded, that was my first impression, yet I do not think that she was more than 40. She was lonely, I think. Desperately lonely. Filled with sorrows and melancholy as a balloon is filled with air, though she never spoke of them. There are people who will always be question marks. She was one of them. No one knew where she was from, whom or what she left behind and why sometimes her eyes would glaze as if recalling memories of past. What she lacked in answers, Alem made up with her kindness and gentleness. I cannot remember her face, yet her rough, scarred hands and the perpetual smell of sandalwood are ingrained in my memory. She used to tell us, the kids of the blocks, stories of long forgotten gods, of the cunning Anansi and Elegua, the God of opportunities and second chances. She spoke of fairytalesque places, where rivers are to be placated before being crossed and trees are so high that they can touch the sky. We were awed by this mysterious, brand new world. Yet Alem warned us about the dangers lurking in it, ingeminated repeatedly how we were lucky not to be born in it. And I, with my innocence and ignorance of a child, could not fathom why. How can behind these beautiful tales hide a sinister, much darker story? After her passing in 2012, my grandmother told me the truth. She told me the tale of the Lady of Sorrow1, the mutilated woman from a small village in Ghana, who left behind everything in order to find medical treatment and peace. That was the turning point after which I started my research on the subject in order to bring resolution not only for myself, but for Alem as well. To Alim and all the women affected by FGM/C, whose stories we will never hear and whose names and living memory ceased to exist. This thesis is a commemoration, a late apology for never learning their stories. I would like to offer my deepest thanks to Dr. A.K. Meijknecht, not only for her incredible and titanous support but also for her patience and . Moreover, I would like to thank Dr. N.M.C. Jägers for her suggestions and feedback, which shaped my Master Thesis in what is it now. As a foreword, I would like to mention that the discussion on FGM/C is a sensitive issue and should be perceived that way by the readers too.

Aleksandra Spina Tilburg, July 2017.

1 De Quincey T., Levana and Our Ladies of Sorrow, English Essays: Sidney to Macaulay, The Harvard Classics, 1909, pp. 14. List of Acronyms

ACHPR African Commission on Human Rights and Peoples’ Rights AfCHPR African Commission on Human Rights and People’s Rights AU African Union CEDAW Convention on the Elimination of All Forms of Discrimination against Women CPSO College of Physicians and Surgeons of Ontario CoE Council of Europe CRC Convention on the Rights of the Child DEVAW Declaration on the Elimination of Violence against Women ECHR European Convention of Human Rights ECOSOC Economic and Social Council ECtHR European Court of Human Rights FGC Female genital cutting FGM Female genital mutilation FGM/C Female genital mutilation/cutting GR General Recommendation HTP Harmful Traditional Practices ICCPR International Covenant on Civil and Political Rights ILO International Labour Organization MGM Male genital mutilation NGO Non-governmental organization SRS Sex reassignment surgery UDHR Universal Declaration of Human Rights UNICEF United Nations Children's Fund UNFPA United Nations Population Fund WHO World Health Organization

Chapter I. Introduction.

«Although it is a symbol of life, the female body is unfortunately not rarely attacked and disfigured, even by those who should be its protector and life companion. » Pope Francis2

Envision yourself being the parent of a young girl, born into a culture that performs a medically “senseless” and excruciatingly painful, yet culturally recognized procedure in order to avoid harassment, shame, and social ostracization for failing to undergo a commonly practiced tradition. The execution of this “rite” is a guarantee that your daughter would avoid the abovementioned, yet it comes with a price, such as medical complications, mental and emotional anguish, and deprivation of her bodily integrity3. Regrettably, in several parts of the world that perform FGM/C, parents are constrained to make this tough decision for their daughters4. Female genital mutilation/cutting (FGM/C) is a traditional practice that can result in severe health consequences for girls and women.5 This rite of diaspora communities is widespread around the world, mostly concentrated across large parts of Africa, to be exact in 29 African countries, certain ethnic groups in South Asia (e.g. India, Indonesia, Malaysia, Pakistan, and Sri Lanka), some countries in the Middle East (e.g. Oman, the United Arab Emirates, Yemen, Iraq, Palestine, and Israel), and South America (e.g. Colombia, Ecuador, and Peru). While the exact number of girls and women subjected to FGM/C is unknown, it is estimated that a whopping 100 to 140 million women and girls living today underwent this procedure. There is no age limit. Girls are subjected to FGM/C when they are newborn, or during childhood, at the time of puberty, before the wedding, during pregnancy or after giving birth. Although the age range differs, it is estimated that most girls are between 0 and 15

2 Pullella P., Powell S., Pope condemns female mutilation, domestic violence against women, Thomson Reuters Foundation Canada, 7 February 2015. 3 Ballenger T., Female Genital Mutilation: Legal and Non-Legal Approaches to Eradication, Journal of Law & Social Challenges, Vol. 9, 2008, pp. 84. 4 Ibid, pp. 90. 5 The United Nations Children's Fund, Female Genital Mutilation/Cutting: A statistical exploration, UNICEF, 2005, pp.1.

1 years when they undergo this operation6. Hence, the fact that this procedure is normally carried out on minors, raises doubts on whether they are capable of giving informed consent. Moreover, a common inaccuracy is to attribute this practice exclusively to the abovementioned countries, which is erroneous as FGM/C is increasingly becoming more prominent due to the steady globalization. The increase in immigration movements spread this practice all over the world. The expatriates from African and Asian communities that migrated to European countries kept performing FGM/C on their daughters after settling in Europe. As an example, a study conducted by Karolinska Instituted, a Swedish university, established that approximately a third of families migrated from places, where FGM/C is actively performed and ingrained in the culture, wanted to continue practicing and executing FGM/C in their new countries.7 Ceterum, with the crisis refugee of the last years, more and more cases surface in countries, where this practice was previously uncommon. As provided by Kashmira Gander a case of FGM/C is reported in England every 109 minutes8 amounting in more than 1200 cases recorded in the period of September-November 2016.9 In 2017, Ferguson stated that one case of FGM/C is reported every hour in the UK10. In Australia, as stated by the non-profit organization No FGM Australia, 3 girls a day are at risk of being forced to undergo FGM/C11. A recent case, in March 2016, is a prime example of the danger of FGM/C in every country. Two young girls, both seven years at the time of the procedure, were exposed to FGM/C on the insistence by their mother. 12 The procedure, called “khatna” was performed by a former midwife as part of a special rite of passage, common to a sect of Shia Islam called “Dawoodi Bohra”. This case is remarkable as it is the first criminal prosecution in Australia for FGM/C. The mother of the two girls, the midwife, and the Dawoodi Bohra community leader were all sentenced to prison sentences. 13 Another case, in the USA, happened in April 2017, 14 as an aftermath four people, all of them part of the Dawoodi Bohra, were charged with conspiracy, FGM/C, aiding and

6 Ibid. 7 Nyheter D., En av tre familjer vill fortsätta omskära, Dagens Nyheter, 24 June 2014. 8 Gander K., FGM case reported in England every 109 minutes, Independent, 5 February 2016. 9 Press Association, More than 1,200 FGM cases recorded across England in three months, The Guardian, 9 June 2016. 10 Ferguson K., One Female Genital Mutilation case reported every hour in the UK, Independent, 6 February 2017. 11 NO FGM Australia, New report on FGM in Australia – 3 girls per day are “at risk”, 25 March 2014. 12 Safi M., Three sentenced to 15 months in landmark female genital mutilation trial, The Guardian, 18 March 2016. 13 Partridge E., First person to be imprisoned over female genital mutilation in Australia, The Sydney Morning Herald, 14 June 2016. 14 Cuevas M., Female genital mutilation procedure 'hurted a lot,' child says, CNN, 25 April 2017.

2 abetting. 15 Both these examples illustrate how no country is safe from FGM/C and that the practice is still living. It seems as if this practice ought to be long forgotten, alas, this is a non sequitur. As we can see, the latest cases contradict the statement that we left FGM/C in the past. FGM/C as a phenomenon highlights many complex universal human rights and cultural relativism arguments. The practice is a constant moral dilemma among scholars, continuously generating debates between Universalists and Relativists. Cultural Relativists argue that all customs, traditions, practices, and beliefs ought to be respected and cherished and no moral code can be universally applied. Thus, they claim that FGM/C must be lent cultural validity and the assessment of cultural practices must devoid of personal bias16. Universalists, strongly backed by universal feminists, embrace the notion that human rights belong to everyone wherever the individual may or may not reside. Human rights are a universal paramount17. Thus, Universalists regard FGM/C through the prism of human rights abuses, specifically women’s rights18 and stand for the promulgation and enforcement of FGM/C. This epitomizes a classic dilemma of human rights: Whether to fight for rights that are seen as universal and fundamental - in this case, the bodily integrity of women - when it means overruling the cultural beliefs of individuals, or minority groups, that often have a long history of this practice and their own, deeply integrated into their culture, reasons for performing FGM/C. The thesis seeks, even though it has become rather unfashionable, to make the case between universalism and the application of international human rights standards and relativism, with its defense of traditional practices and culture. Moreover, it will be discussed how have diverse approaches made an effort to address the cultural significance of the practice and its impacts on the lives of young girls and women. As a mean to do so, a broader approach will be taken, consisting of the study of the theoretical aspects of the issue, the international legal framework, and the exploration of the domestic legal framework of several countries. The last will be done in order to provide a comprehensive analysis of the preeminent and most effective measures that a country may take to

15 Farand C., Two more charged in first US female genital mutilation case, Independent, 23 April 2017. 16 Brennan K., The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study, Law & Inequality Journal, 1988, pp. 382. 17 Ibid, pp. 371. 18 Danial S., Cultural Relativism vs. Universalism: Female Genital Mutilation, Pragmatic Remedies, The Journal of Historical Studies, Vol.2, 2013, pp. 1-10.

3 eradicate FGM/C. The taken measures as will be argued ought to be chosen on the basis of what system is prevailing in the country i.e. the monologue or dialogue system. Thus, it would be mostly concentrated on answering the question « What is to be done when international human rights standards conflict with long-standing cultural practices as in the case of FGM/C? », and the following sub-questions, which are: a) «What is FGM/C and what are its main components? »; b) «How FGM/C fit into the debate of Universalists and Relativists? »; с) «Which human rights are being violated with the practice of FGM/C? »; d) «What legal initiatives have been put in place by the local community to abolish FGM/C? »; e) « Can FGM/C be justified as a cultural practice? »; f) «What is the most efficient system, the monologue or the dialogue one in regards to a country where culture plays a more dominant role than international rules? ».

1.2. Structure. This thesis is structured in six parts, the outlines of which will be provided below. The first part serves as the introductory chapter. It deals with the structure and the methodology used to analyze the material, as well as provides the outline of the main research questions of the thesis. The second chapter explores and provides a working legal definition of FGM/C. Starting with terminology is essential for a better understanding of the issue. Subsequently, it will be provided a description of the main components and elements that ought to be considered in the context of the practice. The third chapter explores the dichotomy between the concepts of Human Rights Universalism and Cultural Relativism. It mainly focuses on the ongoing debate between these two concepts in human rights discourse and the effects it has on the issue of FGM/C. A sub-chapter will be dedicated to a historical overview of FGM/C, as it is helpful to comprehend the cultural roots and background of the practice. This could provide an insight of why the practice is so widespread and deeply entwined in the cultural life of various countries and explain in depth what the practice entails. The fourth part explores the relevant international legal framework, focusing on the applicable human rights instruments, as well as the mechanisms for their implementation. The chapter aims to provide a link between the practice and the violated human rights.

In the fifth chapter, we will analyze the domestic legal framework as well as the current situation in several countries, where FGM/C is a long-standing issue. This analysis will provide us with a deeper insight on how various countries with dissimilar domestic legal regimes are trying to overcome the issue. While the chapter will mainly focus on African and Asian countries, the European and American practice will be included in order to compare the status quo and the mechanism of prevention and sanctioning between these continents. Chapter six is the concluding chapter. It will contain a summary of the research and will provide possible ways to reduce the expansion of the practice.

1.3 Methodology. Qualitative research was implemented in the present thesis, which was done through the examination of the most relevant literature, up to date documents and reports of international institutions, such as UNICEF, Equality Now, Amnesty International, etc., and pertinent NGOs, legal journals, articles and working papers. The material used to write this paper consisted of books, numerous reports, and articles concerning human rights, FGM/C, the status quo of various countries and the legal acts that cover the issue. The research was mostly focused on the African and Asian countries, as FGM/C is a persistent issue, especially among the communities who consider this practice as an indispensable part of their culture. Additionally, the thesis will analyze the experience of other countries (e.g., Canada and the USA), where the situation is the polar opposite i.e. the legislation, we may assume, plays a bigger part than cultural practices in the ordinary life. Thus, the criteria for country selection was the prevalence rate of FGM/C and the status of legal regulation of the practice. Moreover, in the thesis will be included the examination of law cases both from international and national courts, chosen to demonstrate that FGM/C is still a topical and up-to-date issue.

Chapter II Terminology

«If our field is "to advance", we must - without displacing creativity and aesthetics - make sure our terminology is clear. » Jef Raskin19

2.1. Introduction. A clear definition is the first step to understanding the issue at hand. The chapter seeks to answer the question «What is FGM/C and what are its main components? ». In this chapter will be provided a brief introduction of the definition of FGM/C and an analysis of its main types and components. The latter is essential to comprehend why the problem of FGM/C ought to be solved as it deals with factors, including, but not limited to age and consent. Moreover, while analyzing the components of FGM/C, several controversial topics will be explored e.g. sex-reassignment surgery and MGM (i.e. Male Genital Mutilation).

2.2. Definition. As for the terminology, female genital mutilation/cutting (i.e. FGM/C), also known as female genital mutilation (FGM), female genital cutting (FMC), or female circumcision, are all acceptable alternatives. It is essential to understand that an international consensus on the right terminology and different classification of the FGM/C practice has not been reached. “Female circumscription” was widely used as a term in international literature, but eventually was replaced as it was considered erroneous and inaccurate. The proponents of the term “female genital cutting” consider the term “female genital mutilation” to be offensive to the circumcised women, who could not necessarily think of themselves as mutilated.20 “Female Mutilation”, while being the scientifically correct term, is consider to confer a moralizing tone

19 Jacobson R., Information Design, MIT Press, 2000, pp. 342. 20 Rahman A., Toubia N., Female Genital Mutilation: A Practical Guide to Worldwide Laws & Policies, Center for Reproductive Law & Policy, RAINBO (Organization), 2000, pp. 4.

6 that hastily concludes negative implications before an explanation is offered21. “Cutting”, on the other hand, is deemed more neutral, less judgmental. It is common to see a third option, which is a compromise between the two terms mentioned above - “female genital mutilation/cutting (FGM/C)”. The last is commonly used by international organizations, such as UNICEF, 22 WHO, etc. To avoid confusion, subsequently will be used the term female genital mutilation/cutting (FGM/C), as it is the most common and widely accepted term, which fully transmit the damage caused by this practice, but yet is a modus vivendi between the proponents of the two terms. One of the first mentions of these practices is dated back to 1928, 23 in a letter by Marion Stevenson, a Scottish missioner in Kenya, to Dr. Stevenson, presumably her brother. In her message, she describes a rite of passage between childhood and adulthood of great importance to the Kenya’s largest tribe and main ethnic group – Kikuyu people, which she coins as “sexual mutilation of women" or female circumcision. Eventually, in 1929, the definition was elaborated in a memorandum by the Church of Scotland Mission, which Marion Stevenson was part of. 24 In the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (i.e. Maputo Protocol), FGM/C falls under Art. 5 – “Harmful Practices”, which are defined in Art. 1(g) as «all behavior, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity; » and includes «female genital mutilation, scarification, medicalization and para-medicalization of female genital mutilation and all other practices.» As we can see, the list is not exclusive, providing the opportunity for individual assessment in case of doubts. The World Health Organization in its statement provides the following definition: «all

21 Danial S., Cultural Relativism vs. Universalism: Female Genital Mutilation, Pragmatic Remedies, The Journal of Historical Studies, Vol. 2, 2013, pp. 1. 22 The United Nations Children's Fund, Female Genital Mutilation/Cutting: A Global Concern, UNICEF, 2015. 23 Letter from Marion S Stevenson, Tumutumu, Karatina, Kenya Colony, to Dr. Stevenson, Melrose, 1928. 24 Karanja J., The Missionary Movement in Colonial Kenya: The foundation of Africa Inland Church, Universität Marburg, Göttingen, 2009, pp. 92. The practice was described as «an operation which varies in severity, some sections of the tribe practicing a more drastic form than others. It involves the removal of not only the clitoris, but also the labia minora and half the labia majora, together with the surrounding tissue, resulting in the permanent mutilation affecting the woman's natural functions of maturation, menstruation, and parturition, with disastrous results not only to the birth rate, but also to the physique and vitality of the tribe. »

7 procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons. »25

2.3. Types of FGM/C. Female genital mutilation (FGM/C) has four major types, which vary from the degree to which the external genitalia of the female are affected. The WHO/UNICEF/UNFPA Joint Statement identifies four types of FGM/C: 26 Type I: Partial or total removal or excision of the clitoris and/or the prepuce (i.e. clitoridectomy). Type II: Partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (i.e. excision). Type III: Stitching/narrowing of the vaginal orifice with the creation of a covering seal by cutting and appositioning the labia minora and/or the labia majora, with or without excision of the clitoris (i.e. infibulation). Type IV: All other harmful procedures to the female genitalia for non-medical purposes. 27 There is also other widely accepted variants of FGM/C, which are called alternative, as they do not fit under the four-abovementioned types. As an example, a form of FGM/C is introcision – a rite practiced by the Pitta-Patta people, an Australian aborigines group. It entails enlarging the vaginal orifice by ripping it downward with three fingers tied with an opossum string.

25 World Health Organization, Eliminating Female Genital Mutilation: An interagency statement, WHO, 2008, pp.4. 26 World Health Organization, Department of Reproductive Health and Research, Eliminating female genital mutilation: An interagency statement - OHCHR, UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCR, UNICEF, UNIFEM, WHO, Geneva, 2008, pp. 4. 27 Momoh C., Female Genital Mutilation, Radcliffe Publishing, 2005, pp. 7. For example: pricking, piercing or incising of the clitoris and/or labia; stretching of the clitoris and/or labia; cauterization by burning of the clitoris and surrounding tissue; scraping of tissue surrounding the vaginal orifice (e.g. angurya cuts) or cutting of the vagina (e.g. gishiri cuts); introduction of corrosive substances or herbs into the vagina to cause bleeding or for the purpose of tightening or narrowing it; and any other procedure that falls under the definition given above.

2.2. Components of FGM/C. In this part, we will analyze all the components of the term FGM/C. Gender – FGM/C compromises the procedures involving female genitalia, while MGM (male genital mutilation) deals with male genital organs. There is a persistent comparison among scholars between FGM/C and male circumcision. While both share some similarities e.g. the often absence of informed consent, the possible lead to physical and mental harm, the usually young age of the one on whom these procedures are performed, the influence of religion, etc. there are also differences that must not be overlooked and taken into consideration. FGM/C is usually performed in an attempt to control the women and the sexual aspects of her life, thus, reflecting the inferior position that women hold in various aspects of life.28 Without it, she is not considered a woman or even a part of the community. Moreover, FGM/C usually leads to the impossibility of enjoying sexual intercourse, infertility, torturous menstruations, difficult or even death-inducing pregnancy and labor, etc. FGM/C does not have any health or mental benefits.29 As evidenced by experts, male circumcision does not have a negative impact on sexual functions.30 Additionally, male circumcision is considered a possible treatment in cases of phimosis, balanoposthitis and chronic urinary tract infections.31 Furthermore, as evidenced by the researches conducted by WHO, it is believed that male circumcision lessens the risk of HIV infection in sub-Saharan Africa.32 It is also essential to mention, that there is a method to fully or partially restore the foreskin, while in the case of FGM/C it is almost impossible to restore the genitals in their pre-procedural state.

28 United States Department of State, Office of the Senior Coordinator for International Women's Issue, Ethiopia: Report on Female Genital Mutilation (FGM) or Female Genital Cutting (FGC), 1 June 2001. 29 Li X., Tolerating the Intolerable: The Case of Female Genital Mutilation, George Mason University, Philosophy & Public Policy Quarterly, Vol. 21, 2001, pp.3. 30 Morris, B.J., Krieger, J.N., Does male circumcision affect sexual function, sensitivity, or satisfaction? A systematic review, The Journal of Sexual Medicine, Vol. 10 (11), 2013, pp. 2644–57. 31 Lissauer T., Clayden G., Illustrated Textbook of Paediatrics, Fourth edition, Elsevier, 2011, pp. 352–353. 32 World Health Organization, WHO and UNAIDS announce recommendations from expert consultation on male circumcision for HIV prevention, WHO, 28 March 2007.

To summarize, comparing Male Genital Mutilation (MGM) and FGM/C is acceptable, however the equating of male circumcision to FGM/C is incorrect as the consequences and the reasons for performing it are incomparable. Moreover, although in the begging FGM/C was exclusively concerned with the mutilation of women’s genital, neoteric concepts came in the last years, one of which is transgender i.e. an umbrella term, describing a situation when the assigned sex and gender do not match the person's gender identity. Transsexuals are people who often undergo sex reassignment surgery that changes or reshapes their genitals. Violence against them is a current issue, which unfortunately is often not covered by the media. Hate-crimes are common and transgenders are often in the target-group. Does a genital mutilation forcibly done on a transgender woman falls under the category of FGM/C? While it is up to debate, the answer ought to be positive. As was in the case of Eda Yıldırım33, a transgender woman in Bursa, Turkey, who was raped, burned, murdered and whose genital were mutilated on 29 March 2009, the authorities often prefers not to treat such victims as females, so the committed crime will not fall under violence against women. If we include genital mutilation of transgender women in the category of FGM/C, these crimes will have more resonance as usually the society automatically cares more for the committed crime. Age- As stated by the UNICEF statistical exploration, FGM/C is generally carried out on girls between the ages of 5 and 14, but it is also done to infants34 and women35. The age at which this practice is performed varies widely between cultures, but usually, occurs as an initiation to adulthood. In Egypt, Somalia, Chad Republic and the Central African Republic 80% of the girls that are genital mutilated are between 5 to 14. 36 Among the Kisi people, a Tanzanian ethnic group, it is common to undergo this practice at the age of 1037, while amid the Kamba or Akamba people, who are a Bantu ethnic group, girls go through this procedure at 1638. The

33 Öz Y., Study on Homophobia, Transphobia and Discrimination on Grounds of Sexual Orientation and Gender Identity, The Danish Institute for Human Rights, 2013, pp. 20. 34 The United Nations Children's Fund, Female Genital Mutilation/Cutting: A statistical overview and exploration of the dynamics of change, UNICEF, 2013, pp. 3 35 Rahman A., Toubia N., Female Genital Mutilation: A Guide to Laws and Policies Worldwide, Zed Books, 2000, pp.3. 36 Ibid, pp. 50. 37 Ibid, pp.51. 38 Ibid.

Demographic and Health Survey carried out in Yemen in 199739 established that at least 76% of girls underwent FGM/C in their first two weeks of life. FGM/C has no specific age limit; a lot depends on the region and cultural context40. What mutilation consist of? By analyzing several dictionaries e.g. Merriam-Webster, Cambridge Dictionary, etc., we can define mutilation as an act, that permanently injures, disfigures, or makes imperfect the body by removing or irreparably damaging parts by cutting off tissue or body parts. In the past, even the act of cutting your hair was considered a mutilation and a charge could have been brought against women cutting their hair. Moreover, in the 1 Corinthians 11:14- 15 it has been stated that "A woman has long hair, it is her glory; for long hair is given to her as a covering", which implies that to cut them is considered a mutilation of some sort. In the Hanafi school of thought of religious jurisprudence within Sunni Islam, we can find similar provisions. As an example, Imam al-Haskafi specified that: «a woman cutting her hair is a sin and will be damned».41 However, FGM/C deals exclusively with the mutilation of the external genital organs.42 As for other organs, such as breasts, they are not included in the concept of FGM/C. While there are harmful practices revolving around them, e.g. breast ironing (known also as breast flattening), it is a separate issue. Moreover, some include in the concept of genital mutilation the male-to-female or female-to-male sex reassignment surgery (SRS), demanding that this practices must be abolished. The polemics are concentrated on the fact, that SRS involves mutilation of genital organs. As an example, female-to-male chest surgery involves permanently reducing or removing breasts. The difference, however, stands in the self-identification of those, who undergo the operation. Gender dysphoria or gender identity disorder are psychological terms defining a condition when person experiences as a result of the sex and gender they were assigned at birth intense discomfort, severe distress, anxiety, and depression. If you identify as a man, a vagina and vulva are not only non-essential, they are likely hurtful and do not reflect their

39 The United Nations Children's Fund, Changing a harmful social convention: FGM/C, UNICEF, 2005, pp. 4. 40 Middelburg A., Empty Promises: Compliance with the Human Rights Framework in relation to FGM/C in Senegal, PrismaPrint, Tilburg, 2016, pp. 121. 41 Sheikh Rabbani F., Sheikh Rasheed A., Mufti al-Kawthari., Can a woman cut her hair, Darul Fikr, 15 March 2010. 42 i.e. the perineum, mons pubis, clitoris, urethral (urinary) meatus, labia majora and minora, vestibule, greater vestibular (Bartholin) glands, skene glands, and periurethral area (i.e. the tissues surrounding the urethra).

11 true gender. With gender dysphoria, the discomfort with your male or female body can be so intense that it can interfere with the way you function in normal life, for instance at school or work or during social activities. As stated by Harry Benjamin in 1966: «True transsexuals feel that they belong to the other sex, they want to be and function as members of the opposite sex, not only to appear as such. For them, their sex organs, the primary (testes) as well as the secondary (penis and others) are disgusting deformities that must be changed by the surgeon's knife».43 An SRS is helpful to remedy the situation for those transgenders, who feels that the pre- surgical genitals are not essential, as they do not really belong to them. Moreover, SRS is done with the full, informed consensus. To summarize, the inclusion of sex reassignment surgery in FGM/C is mismatched. Consent – Does the informed consent makes the act legal? While it is debatable, we can stand by the position that no, it does not. FGM/C is a harmful practice and a violation of the human rights of girls and women. Even if an adult woman gives here informed consent to undergo this procedure, if in the state law this practice is considered a criminal offence, it makes it illegal and thus punishable. While it is incomparable, but just think of a man who has a sexual relationship with a 10-years-old girl. She consents, she is possibly informed and aware of what the sexual act consist of, but does it make it legal? No, as she did not reach the age of consent, which in turn makes it statuary rape – a criminal offence.

2.3. Conclusions. While the debates on FGM/C never ceased and it seems will never stop for a long time, an agreement on which terminology and different classification to use was not reached. That is the main reason why there is a certain confusion on what is the more appropriate definition to use. To avoid further misperceptions, we will use the terminology more often found in legal documents and reports of international organizations and NGOs i.e. FGM/C. The main components of FGM/C are gender, age, consent, and the mutilation itself. As was previously discussed, the practice is mostly performed on young girls, who cannot give their informed consent to such a drastic operation, which often lead to permanent disfigurement,

43 Erickson-Schroth L., Trans Bodies, Trans Selves: A Resource for the Transgender Community, Oxford University Press, Social Science, 2014, pp. 507.

12 immense chronic pains, mental anguish, difficulties to get pregnant or to give birth, miscarriages, impossibility to lead and enjoy sexual life, 44 infections and even sometimes death.

44 Schweder R., What about "Female Genital Mutilation"? And Why Understanding Culture Matters in the First Place, Daedalus, Number 129, Vol. 4, Fall 2000, pp. 220.

Chapter III. Theoretical Challenges: Cultural Relativism and Human Rights Universalism.

3.1. Introduction. As a result of immigration movements in recent years, Europe and North America are increasingly confronted with cultural practices that may be at odds with Western values and standards.45 Usually, this does not pose a problem as familiarization develops over the course of time, yet as it is the case of several cultural practices (e.g. FGM/C), a middle ground cannot be reached. Thus, a dichotomy is created between countries that follow verbatim the international rules i.e. that adhere to the letter of international laws (See Chapter IV) and countries where cultural practices play an essential part in the lives of the communities (See Chapter V). These intricate opposite standings lead to a collision that is impeccably illustrated on the example of FGM/C. Additionally, the historical background of the practice will be given as one can gain a much wider and deeper understanding of FGM/C through a historical perspective, especially by studying the reasons of why this practice was previously performed and what kind of role the culture played in its development. Moreover, by analyzing the historical background of the practice, we can see what the main reasons for performing FGM/C were and how these changed, if they did, in the modernity. Thus, ipso facto, it will provide us a better understanding of the connotation that traditions play in the lives of various communities. Additionally, it will give us an insight of why the practice is still so deeply rooted in their culture and the complications in its eradication. The chapter seeks to answer the following question i.e. «How FGM/C fit in the debate of Universalists and Relativists? ».

45 Schuyt C.J.M., ‘Publiek recht in een multiculturele samenleving’ (‘Public Law in a Multi-cultural Society’), in: Nederlandse Juristen Vereniging (Dutch Lawyers Association), Multiculturaliteit en Recht (Multiculturalism and the Law), 2008, pp. 63-125.

3.2. Human rights and Human Rights Universalism. As provided in the Article 5 of the Universal Declaration of Human Rights, “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Yet, what does it mean “no one”? The answer can be given by referring to the principle of Universalism. Human rights universalism states that human rights standards ought to be applie to every human being and therefore are universal. As was previously mentioned, Universalism as a theory stems from the Universal Declaration of Human Rights46, which, in turn, sustained a lot of criticism as it is considered to fail to take into account diverse cultural norms and values, which exist in the rest of the world. It is called a prime example of a Western-biased document that represents a neo-colonialist attempt to impose Western values on the developing world. The main critic of the principle of Universalism is that by claiming human rights are universal, we ignore and undermine the cultural differences that exist between societies in different parts of the world.47 As a result, how can the UDHR possible have the same meaning for everyone in the world? Moreover, how can the concept of human rights be the same for everyone? It ought to be near impossible as the society in which we live shapes our view of the world, our beliefs, as well as our moral standards and the values that we emphasize as individuals; it all depends on our cultural upbringing. However, there are several counterarguments to this critic, which I will provide on the example of the Universal Declaration of Human Rights. Firstly, the declaration was drafted48 by representatives from all over the world including Chile, Republic of China, USSR, Egypt, India, Pakistan and Lebanon, none of which countries are particularly “Western”. Secondly, three-quarters of all world states endorsed the declaration, from which two- thirds of the endorsing votes came from non-Western countries49 e.g. Turkey, Syria, Iraq, Ethiopia, Bolivia, etc.50 Moreover, as stated by Michael Ignatieff: “the members of the drafting committee saw their task not as a simple ratification of Western convictions but as an attempt to

46 Donnelly J., Universal Human Rights in Theory & Practice, New York: Cornell University Press, 2003, pp.10. 47American Anthropological Association, Committee for Human Rights, Declaration on Anthropology and Human Rights Committee for Human Rights, June 1999. 48 Drafting Committee, Dag Hammarskjöld Library Research Guides 49 Sahgal G., Who wrote the Universal Declaration of Human Rights?, Open Democracy, 10 December 2014. 50 Yearbook of the United Nations 1948–1949, 27 September 2013.pp. 535.

15 delimit a range of moral universals from within their very different religious, political, ethnic, and philosophical backgrounds”.51 Thirdly, states could abstain from the vote on the declaration. For instance, Saudi Arabia did so, arguing that Articles 16 and 18 (the rights for men and women to marry who they choose, and the right to freedom of religion, respectively) violated Sharia law and Islamic faith in general, as they emphasize patriarchal authority52. Nevertheless, as stated by Emran Qureshi,53 an expert on Islam and Human rights, Sharia is a dynamic platform, and a progressive interpretation of Sharia law can be compatible with universal human rights. It may take years, but eventually, it will happen. Lastly, as exemplified in the African Charter, the African Charter on the Rights and Welfare of the Child (African Children’s Charter) and the African Women’s Protocol (Maputo Protocol), African countries affirmed their recognition and commitment to promoting and safeguarding human rights. Moreover, in the African Charter, specifically in the articles 60 and 61, it is recognized that regional and international human rights instruments and African practices must be compatible with international norms regarding human and peoples’ rights. Additionally, the preamble of the African Charter acknowledges the role that UDHR played in its creation54. Overall, we can safely conclude that the UDHR, despite the fact that it is certainly not perfect, even though it has issues regarding the enforcement of human rights, and while emphasizing individualism over community rights, is still an international document that considers human rights from different perspectives. Hence, the criticism of the human rights universalism theory seems quite far-fetched as it does not take into account the abovementioned.

3.3. Cultural rights and Cultural Relativism. The conceptualization of cultural rights presents a persistent challenge, as there is no singular meaning of the concept of “culture”. Culture, in a certain sense, is perceived as an evolving system of values, beliefs, attitudes, and practices for perceiving the world. Culture has

51 Ignatieff, M., The attack on human rights, Foreign Affairs, Vol. 80, No. 6, Nov-Dec. 2001, pp. 106. 52 O’Connor T., Debating Human Rights – universal or relative to culture?, Development Education, 11 February 2014. 53 Qureshi E., Ezzat H.R., Are Sharia Laws and Human Rights Compatible?, Quantara.de, 4 October 2004. 54 Osiatynski W., The Universality of human rights, Individual and Human Rights Central European University Reader, 2008, pp. 187.

16 been addressed in a number of ways -through concern for freedom of expression, freedom of self-determination, and, of course, the special rights recognized to minorities and indigenous peoples as to preserve their distinct identity. All these rights include the concepts of cultural identity and cultural practices. Cultural identity in a broad sense refers to identification with a particular group based on several cultural categories, including, but not limited to nationality, ethnicity, race, and religion. Cultural practices are activities, through which individuals and/or groups can manifest their cultural identity. Cultural rights are essential for preserving cultural identities and practices and are usually invoked in cases when the actions of the government or other authorities threaten to destabilize the life and the rights of people and communities. Cultural rights – as explicitly stated by the Human Rights Committee (the United Nations treaty body that enforces the ICCPR), are not “negative”, but “positive”, which means that governments must take affirmative steps to guarantee their protection.55 There are several international legal instruments that regulate cultural rights, these include, but are not limited to ICCPR, The ILO Convention number 169 concerning Indigenous and Tribal Peoples in Independent Countries, UN Declaration on the Rights of Indigenous Peoples, UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, etc. As stated by article 27 of the International Covenant on Civil and Political Rights (ICCPR), «in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. » In the General Comments to the ICCPR, it is indicated, that the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language.56 Moreover, in the Article 8 of the UN Declaration on the Rights of Indigenous People (UNDRIP); it is stated that «indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture». Additionally, two other articles,

55 The Human Rights Committee, Fact Sheet No. 15 (Rev.1), 2005, pp. 5 56 General Comment No. 23: The rights of minorities (Art. 27), 8 April 1994, par. 5.1.

Article 11 and Article 12 respectively, deal with the rights of indigenous peoples to exercise and revitalize their cultural traditions and customs. Furthermore, as stated in Article 12, indigenous peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies. Nonetheless, Article 46 (2) of the Declaration provides that «human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. » And Article 46 (3) states that any limitations must be «in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith. » Thus, Article 46 debates on the Declaration’s consistency with other international goals, and the framework for interpreting the rights declared within it.57 A related question thus ought to be asked. How do harmful practices, such as FGM/C, fit in the concept of human rights? Taking into account the above-mentioned, can we consider and refer to FGM/C as a cultural practice? This question is up to debate but is seems that the answer ought to be positive. FGM/C is indeed a practice strongly intervened with the cultural aspects of a particular group, deemed as a representation of family values, tradition, faith that are common to a particular community. To answer this question, we must focus on the theory of cultural relativism. The supporters of the cultural relativism characterize the culture as an essential component of self- determination58 and of peoples’ sovereignty.59 Cultural relativism is founded on the principle that various cultures lead to their own unique moralities and moral systems,60 which means that

57 Favel B., Coates K.S., Understanding UNDRIP: Choosing action on priorities over sweeping claims about the United Nations Declaration on the Rights of Indigenous Peoples, Aboriginal Canada and the Natural Resource Economy Series, vol.10, May 2016, pp.8. «It should be noted that Article 46, which preserves and protects state sovereignty and territorial integrity, was added late by the states (in 2007) and never negotiated and/or agreed to by Indigenous delegates. » 58 Graham L.M., Wiessner S., Indigenous Sovereignty, Culture, and International Human Rights Law, South Atlantic Quarterly, Vol. 110, No. 2, April 2011, pp.410. 59 Cassar J., The Rights of Nations, Global Research Monograph Series, Center for Global Education, St. John's University, New York, No. 4, 1997, pp. 31. 60 Herskovits M.J., Cultural Relativism: Perspectives in Cultural Pluralism, New York: Vintage Books, 1973, pp.89. «Every society has its moral code, which carries unquestioned sanctions for its members. But once we move into another society, we find a series of values differently conceptualized, differently phrased, but having sanctions of equal force. »

18 members of one culture may view some aspects of another culture as bizarre or downright terrific e.g. polygamy, trokosi,61 etc., consequently, it means that no moral principle can be made that could be applied to all cultures.62 Every culture has its own sui generis values and practices, which form an inherent integrity, thus we cannot provide valid judgments about what is “right” and what is “wrong” by trying to compare one culture to another one. Moreover, cultural context must always be taken into account. While it is essential to promote group rights, sometimes they can be used in a way that could potentially lead to the suppression of individuals, which do not fit the hegemony of that group. By protecting group and individual rights uno flatu and with the same fervor, human rights will not interfere or diminish the group, but rather ensure that each and every individual within it is protected and heard. Moreover, in their readiness to promote the significance of cultural diversity and group rights, the supporters tend to forget that all cultures are composed and based on individuals and regardless of our cultural background; no two people think exactly the same.

3.4. Historical Perspective It is important to interrogate history, it is important to document history, because as a society we need constant reminders of the things that we've done in the past in the hope we can stop repeating these horrible lessons. Walter Benjamin63 One of the main arguments of Relativists is that moral rightness and wrongness is determined by the predominant culture’s views on the given act by the members of the culture in question64. In short, the comprehension of the wrongness of a certain act solely depends on the

61 Gillingham C., The Trokosi System of Child Slavery and the Role of Cultural Relativism, Burning Tree Magazine, 4 October 2016. 62 Higgins T.E., Anti-essentialism, Relativism and Human Rights, Fordham University School of Law, 1996, pp.95. As explained by Higgins, cultural relativism is « committed to one or both of the following premises: that knowledge and truth are culturally contingent, creating a barrier to cross cultural understanding; And that all cultures are equally valued. Combined with the empirical observation of cultural diversity worldwide, these two premises lead to the conclusion that human rights norms do not transcend cultural location and cannot be readily translated across cultures. » 63 Walter B., Adams J.L., Theses on the Philosophy of History, New York: Schocken, 1969. 64 Chokr N.N., Who is (not) afraid of (cultural) relativism?, Traces: Revue de Sciences humaines, December 2007.

19 cultural upbringing of the individual. Yet in case of FGM/C, the attitude towards the practice is heavily influenced by the extensive historical background of it, which will be briefly introduced in this sub-chapter. What do we know about the origins of FGM/C? It is unknown where it originated, as the roots of this practice are obscure, yet, there has been anthropological and historical research to help us understand how the practice came about. Although the fight against this practice started relatively not long ago, FGM/C could be traced pro tanto as to 2000 years. There are some conjectures that this particular practice evolved from earliest times in primitive communities that wished to establish control over the sexual behavior of women. The predominant school of thought is that this practice originated on the west coast of the Red Sea, mainly Ancient Egypt in the fifth century B.C., and was geographically distributed subsequently on other countries bordering the Red Sea e.g. Sudan, Yemen, Eritrea, Saudi Arabia, Somalia, etc.65 The other school supports the view, that FGM/C started in other countries e.g. the Inca Empire or the Roman Empire, 66 yet, in the last case, it was mostly performed on female slaves.67 We will examine both opinions thoroughly, as well as provide some evidence, that the predominant school of thought is more likely to be correct in its assumption. It is essential to mention the third approach, which assumes that the practice was occurring some centuries before this, however, and was spread, by dominant tribes and civilizations as a result of tribal, ethnic, and cultural allegiances; however, there is no reliable documented evidence of it.

65 However, as stated by Mary Knight, this theory could be made-up as to discredit the βάρβαρος (bárbaros) i.e. the foreigners, which was a common terminology to refer to the Egyptians. (See Knight M., Curing Cut or Ritual Mutilation? Some Remarks on the Practice of Female and Male Circumcision in Greco-Roman Egypt, The University of Chicago Press on behalf of The History of Science Society, Vol. 92, No. 2, June 2001, pp. 319.) 66 Piccolino M., Finger S., Discovering the African Freshwater “Torpedo”: Legendary Ethiopia, Religious Controversies, and a Catfish Capable of Reanimating Dead Fish, Journal of the history of the neurosciences, vol. 20(3), July 2011, pp.10. 67 Indeed, it seems that there is a connection between FGM/C and slavery. In 1609, João dos Santos, a Portuguese Dominican monk, described a particular group, which was situated near Mogadishu, Somalia. As he reported, they “performed a practice, which consisted in sewing up their women, especially young slaves to make them unable for conception which makes them sell more expensively, both for their chastity and for better trustworthiness which their masters put in them” (See Dos J., Santos, Ethiopia oriental, e varia historia de cousas, notaveis do oriente, (Eastern Ethiopia, History about various things, a remarkable guide), 1609, pp. 39.)

Ancient Egypt. What proof do we have for stating that this practice originated in Egypt? As we mentioned above, the predominant school of thought is that FGM/C initiated in Ancient Egypt, where it was practiced as a sign of distinction amongst the aristocracy, and then spread to East Africa, hence the term «pharaonic circumcision» coined by the Sudanese.68 A Greek papyrus dated 163 B.C., hold in the British Museum, which describes the circumcision of Tathemis, an Egyptian girl. Another historical evidence, is the fact that on a sarcophagus, now located in the Museum of Egyptian Antiquities (commonly known as the Museum of Cairo or Egyptian Museum), that presumably belongs to Sit-Hedj-Hotep, the daughter of one of the most powerful nomarchs of the Middle Kingdom, it is encrypted a message or possibly a spell, which requires the help of an uncircumcised girl.69 Moreover, it was a common procedure to prevent young slaves getting pregnant as to ensure their re-sail value. 70 In the c. 20 B.C. – 50 C.E., another reference was made by the philosopher Philo of Alexandria. 71 The magnum opus of another Greek physician and medical writer, Aetius of Amida, 72 were provided in the Sixteen Books on Medicine, where were also quoted the studies of another

68 Mackie G., Ending Footbinding and Infibulation: A Convention Account, American-Sociological-Review, 1966, pp. 1003. |As provided by Mackie, Infibulation (i.e. the practice of removing the clitoris and labia of a girl or woman), took its roots in the Meroite civilization (approximately c. 800 B.C. — c. 350 C.E.), and was executed as a way to ensure confidence in paternity. 69 However, Paul F. O'Rourke states that it is just a mistranslation and the spells in question deals instead with a menstruating woman. 70 Rawlinson G., Rawlinson H., The History of Herodotus, New York: D. Appleton and Company, Book 2, Chapters 5-99, 1885. Other relevant sources are contributing to this idea e.g. the notes in Geographica, a topographical encyclopedia of the Greek geographer and historian Strabo in 25 B.C. The Greek historian Herodotus, during his visit to Egypt circa 5th century B.C., reported in his notes: «They (Author’s note – Egyptians), practice circumcision for the sake of cleanliness, considering it better to be cleanly than comely. » 71 Philo Supplement 1, Questions and Answers on Genesis, translation by Ralph Marcus, London, 1953, pp. 241-242. In the Philonis Alexandrini Opera quæ supersunt (i.e. The Books of Philo of Alexandria), he remarks that: «the Egyptians by the custom of their country circumcise the marriageable youth and maid in the fourteenth year of their age, when the male begins to get seed, and the female to have a menstrual flow.» In another work (129 – c. 200 C.E.) by the Greek physician, Claudius Galenus, it is mentioned that Egyptians consider appropriate to cut out the clitoris of young women when it sticks out. 72 Grafton Elliot Smith, an Australian pathologist, and Egyptologist, who was closely working with mummies in the early 20th century stated, that no apparent evidence of FGM/C was seen during the examination of hundreds of mummies. However, it is highly unlikely to find evidence of the FGM/C of Type I or of Type II, as the soft tissues would have been deteriorated or been

21 physician Philomenes. FGM/C, as explained by the physicians, was performed in the event when the clitoris was too large or caused sexual desire or arousal when rubbing against clothing. 73 Another explorer, the English traveler William George Browne, in 1799, published a book where he described his travels to various countries, including Egypt. 74 In his study, he reported that excision (i.e. the removal of an organ) and infibulation was commonly practiced by Egyptians to avert possible pregnancies in women and, mostly, slaves. As we can see, there is enough evidence to support the school of thoughts that FGM/C originated in Ancient Egypt, nevertheless, we must always take into account the problematic nature of the evidence and interpretation of it as a whole75. It is clearly challenging to conclusively examine surgical procedures that were conducted more than two thousand years and, moreover, in the absence of the living patients themselves. Another thing to consider is that there are no textual sources written by women, only by men.76

The Inca Empire. In the Inca Empire (XV to XVI century), in the capital city Cuzco, there was a temple Amarucancha or Amaro Court (literal translation – House of the Great Snake), which worshiped an idol, in the form of a dragon-like snake devouring a scorpion. According to an Italian priest Juan Anello Oliva, surgical operations on genital organs were carried out as a sign of respect and worship of this deity. There was a belief among the Incas that the dragon-like snake represented the life force of the Creator; the receptacle and the sting of the scorpion, on the other hand, symbolized the female clitoris. That was one of the main reason why

removed during the embalmment. As for the Type III, the historian Mary Knight, writes that the genital area of the mummies analyzed by her bear a resemblance to this specific type as during mummification the skin of the outer labia was pulled toward the anus to cover the fissure between the labia majora (i.e. the pudendal cleft), possibly to avert sexual violation. Moreover, Mary Knight discovered on an Ancient Egyptian Coffin a text, in which the hieroglyphs can be translated as to refer to an uncircumcised girl. 73 Knight M., Curing Cut or Ritual Mutilation? Some Remarks on the Practice of Female and Male Circumcision in Greco- Roman Egypt, The University of Chicago Press on behalf of The History of Science Society, Vol. 92, No. 2, June 2001, pp. 327- 328. As Aetius recorded: "For this reason, it seems appropriate to the Egyptians to remove the clitoris before it became significantly enlarged, particularly at that time when the girls were about to be wedded". 74 Browne W.G., Travels in Africa, Egypt, and Syria, from the Year 1792 to 1798, 1799, pp. 314-347. 75 Dean-Jones L., Women's Bodies in Classical Greek Science, Oxford University Press, 1994, pp. 27. 76 Clark G., Women in Late Antiquity, Oxford University Press, 1993, pp. 67-70.

22 cutting the clitoris of young girls was considered to be a sign of faith. Catholic priests regarded this practice as barbaric, though is it because of the practice itself or the Inca comparison of their beliefs to the worship of the Holy Virgin Mary, it is unknown. There is no more reliable evidence that FGM/C originated in the Inca Empire, moreover, the abovementioned cases represent an exception, rather than the rule.

Roman Empire and Ancient Greece. During the Roman Empire, the Romans performed a similar procedure to prevent unwanted pregnancies of all female slaves that involved slipping fibulae i.e. rings through the labia majora. As evidenced by Caelius Aurelianus, a Roman physician that worked in the fifth century, this practice was also done as to make women with an «excessively large clitoris» look presentable and less susceptible to lust. 77 On the other hand, Greek women were thought to be susceptible to hysteria and a quite common treatment for the condition, involved fumigations. 78 An evidence of this practice in Greece we can find in the work of Soranus of Ephesus, a noted Greek physician. 79 There are other theories, a common belief among various anthropologists that FGM/C was practiced among Equatorial African herders, especially in the territory of Guinea and Sudan, to protect young female herders from being raped and thus protect their chastity. Another possible explanation by Lightfoot-Klein is that it was done as “an outgrowth of human sacrificial practices, or some early attempt at population control”.80

Other countries. FGM/C as a practice was not exclusive to the above-mentioned cases. For instances, the USA and Europe have also a fair share of dark history regarding this procedure.

77 Caelius A., Gynaecia: Fragments of a Latin Version of Soranus, ed. Miriam F. Drabkin and Israel E. Drabkin, Bulletin of the History of Medicine, Suppl. 13, 1951. 78 Dean-Jones L., The Politics of Pleasure: Female Sexual Appetite in the Hippocratic Corpus, Helios, 1992, pp. 82-84. 79 Soranus, Gynaikeia libri IV, ed. Johannes Ilberg. Corpus Medicorum Graecorum Vol. 4, Leipzig: Teubner, 1927, pp. 147. «On the excessively large clitoris, which the Greeks call the "masculinized" nymphe (i.e. clitoris). The presenting feature of the deformity is a large masculinized clitoris. Indeed, some assert that its flesh becomes erect just as in men and as if in search of frequent sexual intercourse. You will remedy it in the following way: With the woman in a supine position, spreading the closed legs, it is necessary to hold [the clitoris] with a forceps turned to the outside so that the excess can be seen, and to cut off the tip with a scalpel, and finally, with appropriate diligence, to care for the resulting wound. » 80 Lightfoot-Klein H., Pharaonic circumcision of females in the Sudan, Medicine and Law, Vol. 2, 1983, pp. 354.

In the Tsarist Russia (approximately the beginning of the 18 century), a secret sect named Skoptsy (or «People of God») were practicing castration among men and mastectomy of women.81 They believed that after the Original Sin, 82 the eaten forbidden fruit imprinted in their bodies, forming the male and female genitalia, as well as the breasts. 83 By removing the offending sexual organs, the Skoptsy believed that they would be restored to the pristine state prior the Original Sin. Moreover, they performed FGM/C on young girls, to ensure their purity and virginity, both mental and physical. The Skoptsy belief that the refusal of God to communicate with its followers, especially women, lies exclusively in the “dirtiness” of their bodies, in the lepost (aesthetic beauty, human sexuality, sex appeal, etc.). To reach the perfection, the soul should be liberated from the sins and sexual desires, which genital mutilation – as they believed – would cure. The purification was made by removing the labia and in some cases even the clitoris and breasts. In Peru, several indigenous groups were and somehow still are practicing FGM/C by means of a rite, called ani veate (lit. big drinking) or wake honèti. It is mainly practiced by Shipibo-Conibo people, a division of the Pano Indians in the Northeast, and is considered to be a feast, accompanied by elaborate celebrations, drinking, and dancing. The purpose of the rite is difficult to decipher, but William Curtis Farabee proposed in 1922 that it is a sacrifice of the young girls’ virginity to the moon as the Panoan tribes worship it, considering that the moon makes women of girls. 84 However, Gunter Tessman, a German explorer, and ethnologist specialized in Panoan groups, when asking these tribes of the meaning of the rite, did not receive any answer, thus concluding that « no Tschama woman or man is clear about the meaning of the female puberty rite. »85

81 The terminology of the world derives from the archaic Russian «skopets», which means «eunuch» or «the castrated one». The Skoptsy sect is believed to be almost eradicated, after the heavy persecution by the Soviet forces. 82 i.e. after the expulsion of Adam and Eve from the Garden of Eden. 83Panchenko A.A., Антисексуальность в русской народной культуре: идеология и мифология скопчества (transl. Antisexuality in the Russian folk culture: idealogy and mythology of Skoptsy), Христовщина и скопчество: фольклор и традиционная культура русских мистических сект, Moscow Regional Humanitarian Institute, 2002, pp. 365—388. 84 Farabee W.C., Indian Tribes of Eastern Peru, Peabody Museum of Archaeology and Ethnology, Harvard University, Vol.10, 1922, pp.85. 85 Roe P.G., The Cosmic Zygote: Cosmology in the Amazon Basin, Rutgers University Press, 1982, pp.103.

At the end of the 19 century – the first half of the 20 century, FGM/C was practiced in the United States as a treatment for women masturbation or so-called “female weakness”86 e.g. hysteria, attempted suicide, dysmenorrhea, lesbianism, frigidity, nymphomania, excess sexual drive, etc. As we can see, the list was endless and quite incompatible. The treatment authorized by gynecologists included clitoridectomy and the removal of the clitoral hood and until 1977 was covered by health insurances 87(e.g. by the Blue Cross Insurance). 88 In «For Her Own Good: Two Centuries of the Experts' Advice to Women»89, firstly published in 1978, it is described how a five-year-old girl in the United States underwent a clitoridectomy to cure masturbation in 1948, which was the last recorded case of clitoridectomy in the USA. 90 Alas, it does not mean that other procedures automatically stopped. In 1959, Dr. W.G. Rathmann, published in a medical journal an article, promoting female circumcision, stating that: «If the husband is unusually awkward or difficult to educate, one should at times make the clitoris easier to find by amputating the clitoral hood».91 As we can see, the practice is not exclusively an “African concern”. It must be understood that the discourse on the eradication of FGM/C ought to include the acknowledgment that the practice stems from long-standing traditions that cannot be erased immediately by adopting and ratifying legal acts. The monologue system is hardly effective in battling traditions or cultural practices. What we need is to apply a combination of dialogue and monologue measures, of which we will discuss anon.

3.4. FGM/C in the context of religious relativism. The Euthyphro dilemma revolves around the question whether it is just and good because God wills it or whether God wills it because it is good and just. 92 Thus, a question must be asked

86 Momoh C., Female Genital Mutilation, Radcliffe Publishing, 2005, pp.5. 87 Watson M., Female circumcision from Africa to the Americas: Slavery to the present, The Social Sciences Journal, Vol. 42, 2005, pp.421-437. 88 Schubert K.A., Female Circumcision in the United States, University of Florida George A. Smathers Librarie, 2007, pp.13. 89 Ehrenreich B., English D., For Her Own Good: Two Centuries of the Experts' Advice to Women, Social Science, 2013, pp.111. 90 Ibid. Moreover, as stated by the authors, while most doctors frowned on the practice of performing FGM/C, they tended to agree that it might be necessary in cases of nymphomania, intractable masturbation, or “unnatural growth” of the clitoris. 91 Rathmann W.G., Female Circumcision: Indications and a New Technique General Practioner, Vol. 20, No. 3, September 1959, pp. 115-120. 92 Leibniz G.W., Reflections on the Common Concept of Justice, Philosophical papers and letters, 1702, pp.561.

25 whether to consider religious practice (which FGM/C is perceived to be) as predominantly moral and acceptable because they are religious or to include in the concept of religious practices only these that are ethical and humane? Religious relativism argues that a world religion is correct and its correctness is relative to the world-view of its community of adherents.93 Consequently, if a religion dictates that a particular religious practice (e.g. FGM/C) is an essential part of the belief, it must not be regarded as immoral or a violation of human rights through the perspective of another religion. It is common to find debates in regards whether to consider FGM/C as a religious practice or not. As it is claimed by the UNICEF report of 2013, 94 the belief that FGM/C a religious requirement contributes to the continuance of the practice in a number of settings. As will be seen in Chapter V, FGM/C is practiced among various cultures with diverse religious beliefs and traditions. The practice of FGM/C continues within some communities in various form and even in the 20th century, girls and women are still subjected to this harmful tradition as FGM/C is deeply rooted in the culture. While some believe that the practice is performed for religious reasons, FGM/C has not been confined to a certain culture or religion. As stated by Carla Obermeyer, a medical anthropologist, while it is largely acknowledged that a number of the countries where female genital surgeries are found are predominantly Muslim, there is no unequivocal link between religion and prevalence. In Côte d'Ivoire, the commonness is 80 percent among Muslims, 40 percent among those with no religion and 15 percent among Protestants, and in Sudan, the prevalence is highest among Muslim women. In Kenya, on the other hand, the prevalence is highest among Catholics and Protestants compared with other religious groups.95 While FGM/C is practiced in some communities on the grounds that it is a religious obligation, the conducted studies show that this practice pre-dates Islam and Christianity.96 FGM/C has been mentioned in neither the Old Testament (i.e. the Jewish Bible), the New

93 Lewis C.M., Relativism and Religion, Education, 2016, pp.35. 94 The United Nations Children's Fund, Female Genital Mutilation/Cutting: A Statistical Overview and Exploration of the Dynamics of Change, UNICEF, July 2013, pp. 69–71. 95 Obermeyer C., Female Genital Surgeries: The Known, the Unknown, and the Unknowable, Medical Anthropology Quarterly, Vol. 13(1), 1999, pp. 88. 96 The United Nations Children's Fund, Female Genital Mutilation/Cutting: A Statistical Overview and Exploration of the Dynamics of Change, UNICEF, July 2013, pp. 69-71.

Testament (i.e. the Christian Bible), the Quran nor Sunnah97; therefore we can safely assume that it is not mandated by religious scriptures. There is a common misconception that the practice is prescribed by the Koran, yet that belief is quite incorrect.98 Cheikh Ould Zein, the general secretary of the Forum of Islamic Thought in Mauritania during an interview by the Thomson Reuters Foundation, stated: «Are there texts in the Koran that clearly require that thing? They do not exist. On the contrary, Islam is clearly against any action that has negative effects on health. Now that doctors in Mauritania unanimously say this practice threatens health, it is therefore clear that Islam is against it. »99 Then why some still hold the belief that FGM/C is a mandatory sign of faith? The response may be that whilst we know this is clear, there are still many communities where Imams and others preach that this practice is in the Quran. In a way, it seems that people appropriate FGM/C wherever there is a need to control women and particularly control their desire. In the 2009 documentary movie by Barbara Attie and Janet Goldwater, “Mrs. Goundo’s Daughter”, there is a scene where two imams are interviewed. When asked whether FGM/C is a religious practice or not, one states that female genital mutilation is not mentioned in the Quran. The other agrees on this fact yet then adds that uncut women must undergo FGM/C or else they will «drive themselves crazy with desire. An unexcised girl is not accepted here. Men will never marry her. » Since the 90s, there were several fatwas (i.e. religious ruling) dealing with the issue of FGM/C. One of the most recent was in 2014, when Ali al-Sistani100, the spiritual leader of Iraqi Shia Muslims, stated that «female genital mutilation or cutting off a part of a woman’s genital is

97 Middelburg A., Empty Promises: Compliance with the Human Rights Framework in relation to FGM/C in Senegal, PrismaPrint, Tilburg, 2016, pp. 380. 98 Ibid, pp.130. It is said that in 742 A.D., the prophet Mohammed met Um Habibah, a woman who performed FGM/C on female slaves. Um Habibah asked if she should keep doing the procedure, to which the prophet replied affirmative, proposing that the practice should be “reduced but not destroyed”. This statement was considered as an instruction to perform only the Sunna type of FGM/C. Moreover, he stated that for a woman opting for the procedure is a makruma (i.e. an honorable deed) 99 Fominyen G., Prieur L., Mauritanian Muslim imams initiate rare ban on female circumcision, Thomson Reuters Foundation News, 21 January 2010. 100 Prieur L., Massalatchi A., W.African genital cutters face fatwa, jail, Thomson Reuters Foundation, 22 January 2010.

27 certainly a crime against girls and there is no permission and justification for parents to do this operation. » 101 To summarize, FGM/C cannot be considered as a religious practice for the reason that is performed in societies with various religious backgrounds. Moreover, attributing the practice to one single religion is to allow the stereotyping to cloud our minds and this could lead to not preventing it efficiently from being performed. As will be discussed in the next chapter, FGM/C is practiced in countries that are not Muslim. Thus, to answer the Catch-22 posed by Plato, a religious practice must be one that promotes humane treatment and excludes violation, abuses, harm, etc.

3.5. Conclusions. Three decades ago, the practice became the epicenter of debates between Cultural Relativists and Universalists as whether it is the issue of culture or human rights.102 While some stand on the opinion that FGM/C ought to be treated as a cultural practice and thus be respected as an essential part of a culture.103 Others consider FGM/C as a prime example of a human rights violation that must not be tolerated because of its damaging nature. Indeed, it is crucial to recognize the contribution that universality played in shaping human rights standards104. Yet, it is no less important to acknowledge the significance of cultural relativism in order to understand the reasons why in various cultures FGM/C is regarded in an affirmative light.105 Universalism traces its roots in the Universal Declaration of Human Rights and refers to the idea that human rights are universal and ought to be applied to every human being. Cultural Relativism, on the other hand, claims that human rights are culturally reliant and that no moral principles can be made to apply to all cultures. FGM/C stands at the crossroads of these two doctrines. The dichotomy is most noticeable in the context of women’s rights. The proponents of

101 Kamal H., Cleric supports Battle against Female Genital Mutilation in Iraqi Kurdistan, Stop FGM Middle East, KNNC, 10 February 2014. 102 Donnelly J., Cultural Relativism and Universal Human Rights, Johns Hopkins University Press, 1984, pp. 400-419. 103 Chiarello P., Cultural Relativism: 4 Arguments For and Against, Applied Science, 31 May 2013. 104 Hernández-Truyol B.E., Women’s Rights as Human Rights—Rules, Realities and the Role of Culture: A Formula for Reform, Brooklyn Journal of International Law, Vol. 21, pp. 606. 105 Goldberg P., Women, Health and Human Rights, Pace International Law Review, Vol. 9, 1997, pp. 271.

28 the Universalist approach state that cultural relativists’ views «are generally favorable to the powerful members of the group and, consequently, tend to mask the role of gender in shaping the interests, ideologies and practices of the group. »106 Cultural relativists, on the other hand, claim that the liberal theory on which universalism is based, disregard other viewpoints nor recognize that «essential aspects of human dignity are ensured through membership in the community rather than through inherent rights that attach to the individual».107 As we can see, traditionally the main reasons for performing FGM/C were the following: aesthetic reasons, as a mark of slavery, to control woman’s sexuality, as a sign of a membership to a particular group or as a sign of faith. These justifications are playing a major role in why this practice is performed in the present. From the ancient times until now, as will be discussed in later chapters, the practitioners of FGM/C still adhere to these rationalizations, wholeheartedly believing that without it a woman would not able to be a wife, mother or a full-member of the society. This status quo is contradictory to what the modern international principles dictate (See Chapter IV), which stand on the beliefs that «all human beings are born free and equal in dignity and rights»,108 « no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment»109, etc.

106 Smith R.C., Female Circumcision: Bringing Women’s Perspectives into the International Debate, University of Southern California, 1992, pp. 2471. 107 Savell K.L., Wrestling with the Contradictions: Human Rights and Traditional Practices Affecting Women, McGill Law Journal, Vol. 41, No. 4, 1996, pp. 789. 108 The Universal Declaration of Human Rights, 1948, Article 1. 109 Ibid, Article 5. The International Covenant on Civil and Political Rights, 1976, Article 7.

Chapter IV. Universalism in practice: the International Legal Framework.

4.1. Introduction. Universalism postulates that human rights are universal and inherent. As human beings, we are equal in dignity and in rights, «all members of the human family share the same inalienable rights».110 Thus, we ought to be united together against any type of discrimination, inequality, or any human rights violations. Our rights are universal, thus, consequently, our issues are universally relevant too. As was provided in an illustrious peroration of Hilary Clinton, « women's rights are human rights»111. This statement is recorded in numerous international documents. Moreover, the state’s obligation to enact legislation to address “harmful practices” such as FGM/C has been established in various international human rights treaties, including, but not limited to the Universal Declaration of Human Rights of 1948, the Convention on the Elimination of All Forms of Discrimination against Women of 1981, the UN Declaration on the Elimination of Violence against Women of 1993, etc.112 In this chapter will be provided an analysis of the universal treaties that directly or indirectly regulate the issue of FGM/C and the answer to the question «Which human rights are being violated with the practice of FGM/C? ».

4.2. International Legal Framework. Achieving equality between women and men and eradicating all forms of discrimination against women are internationally proclaimed fundamental human rights, set forth in several treaties, e.g. United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which comprehensively addresses women’s rights within political,

110 Mayer A.E., Cultural Particularism as a Bar to Women’s Rights: Reflections on the Middle Eastern Experience, Women’s Rights, Human Rights: International Feminist Perspectives, Psychology Press, 1995, pp. 176. 111 Clinton H.R., Remarks for the United Nations Fourth World Conference on Women, the United Nations Development Programme (UNDP) in collaboration with the United Nations Fourth World Conference on Women Secretariat, 5 September 1995. 112 Afkhami M., Women, Gender, and Human Rights: A Global Perspective, Gender Apartheid, Cultural Relativism, and Women’s Human Rights in Muslim Societies, Rutgers University Press, 2001, pp. 243.

30 civil, cultural, economic, and social life, promoting that men and women are equal in their rights and freedoms. Nevertheless, many states even now continue to reject even the notion that men and women must enjoy equality. Moreover, FGM/C has been condemned as a grave violation of women rights and human rights in general; nonetheless, it still remains an integral part of many African, Asian, and Middle Eastern cultures. Several international mechanisms directly or indirectly address and regulate the issue of FGM/C. These includes, but are not limited to:

4.3. Convention on the Elimination of All Forms of Discrimination against Women. The CEDAW as an international treaty is ratified by 189 countries, 113 which are as stated by Article 5 bounded to “modify the social and cultural patterns of conduct of men and women 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.” The scope of the CEDAW is, as it is enshrined in Article 1, to eliminate all forms of discrimination against women that either intends to or has the effect of limiting women from participating equally in all spheres of public and private life. As for the General Recommendations (GR), No.19 recognizes the connection between gender-based violence and «traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles» (paragraph 11). The prejudices that are rooted in some cultures are used as excuses to commit gender-based violence and to justify the subordinate positions that women occupy in regards to some aspects of their lives e.g. employment, education, political life. As was concluded in the case Vertido v. Philippines,114 «states parties are obliged to take effective steps to ensure that decisions in sexual assault cases are impartial, fair and are not affected by prejudices or stereotypes. » This decision if implemented in regards to FGM/C could mean that a case brought to court by a victim of this practice must be decided without considering the cultural prejudices and stereotypes that often surrounds women. Moreover, the GR No. 19, paragraph 15(d) obliges the state to ensure «the enactment and effective enforcement of laws that prohibit female genital mutilation».

113 United Nations Human Rights, Ratification of 18 International Human Rights Treaties, Office of the High Commissioner. 114 United Nations, Communication No. 18/2008, Committee on the Elimination of Discrimination against Women, UN Doc. CEDAW/C/46/D/18/2008, 22 September 2010.

Other relevant General Recommendations are GR No.14, which deals exclusively with female circumcision and GR No.24, which confirms that the access to health care is a basic right. The CEDAW established (article 17) the Committee on the Elimination of Discrimination against Women as a monitoring mechanism, which oversees the implementation of the Convention. The Committee studies States parties’ reports and after such consideration, it formulates concluding observations that contain recommendations to assist the State party concerned in the further implementation of the Convention. Moreover, the Committee closely cooperates with NGOs, welcoming the statistics that they deliver. As a remark, it must be noted that CEDAW has a notable quantity of reservations; 115 sixty-two states have entered reservations against some provisions of the Convention. 116 As stated in Article 28 of the CEDAW, which mirrors the Article 19 of the Vienna Convention on the Law of Treaties, a reservation that is incompatible with the object and purpose of the Convention is not permitted i.e. the CEDAW adopted the principle of impermissibility. However, many reservations are too vague. Several states stated that certain provisions are contrary to the Islamic Sharia Law, which as a consequence, would mean that the obligations laid in the Convention would be fulfilled only to the extent that is not conflicting with it e.g. Saudi Arabia and Mauritania. 117 Reservations allow states to become parties in name only, while not requiring in return to make changes in the legislation and society’s practices. Moreover, reservations may directly affect the implementation of the Convention or at least send a message that the state does not accept the full enforcement of women’s human rights. 118 In regards to its collaboration with states, an exemplary work was conducted by the Committee in the 2005 case of M.N.N. v. Attorney General of Kenya. 119 The case is noteworthy as it was brought on behalf of a woman whose genitals, without her knowledge or consent were mutilated in a private Kenyan hospital. As one of the first reproductive rights cases to be brought before the Kenyan High Court, it brought to light the danger of being forced to such a practice

115 Tiefenbrun S.W., Women’s international and comparative human rights, Carolina Academic Press, 2012, pp. 52-53. 116 Declarations and Reservations. United Nations Treaty Collection, 2015. 117 Declarations, Reservations and Objections to Convention on the Elimination of All Forms of Discrimination against Women, The United Nations Entity for Gender Equality and the Empowerment of Women, 2014. 118 Keller L.M., The Impact of States Parties’ reservations to the Convention on the Elimination of All Forms of Discrimination against Women, Michigan State Law Review, 2014, pp. 317. 119 https://www.reproductiverights.org/node/2435

32 even in places, where safety must be guaranteed. As an aftermath, the Committee urged Kenya to enact the 2010 Prohibition of Female Genital Mutilation Bill, which would make FGM/C illegal.

4.4. The UN Declaration on the Elimination of Violence against Women. The United Nations General Assembly adopted the Declaration in 1993 as a complementary tool to the CEDAW. The Resolution’s aim was to shed light on violence against women, which was often a domestic and private matter, hidden behind the doors. The Declaration defines violence against women in Article 1 as «any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. » Article 2(a) unambiguously classifies FGM/C as a form of violence against women.

4.5. The Convention on the Rights of the Children. FGM/C mostly affects young girls under the age of 18, which is why the Convention on the Rights of the Children (i.e. CRC) plays a major role in resolving the issue. CRC is one of the human rights international treaties with the highest rate of ratification with 196 countries as parties. 120 The Convention sets international standards for the rights and needs of children, it explicitly calls on states to provide legal, educational, health, and institutional measures to safe keep and protect children from mental and physical violence, while respecting the rights, duties, and responsibilities of parents. In the Article 3 of the Convention, we can find the «best interests of the child» standard, which is used when addressing the rights of children. While the Convention recognize the part that the child’s family plays in making major decisions that affect the child, as stated in Article 5, the government still has the ultimate responsibility for protecting the rights of a child. Article 19 spells out the obligations of states to guard the child against all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse by taking all appropriate legislative, administrative, social and educational measures and/or creating social programmes to provide

120 United Nations Treaty Collection, Convention on the Rights of the Child Archived 11 February 2014, Wayback Machine, 2 October 2015.

33 necessary support for the child, and to prevent, investigate, report, treat cases of child’s maltreatment. Moreover, Article 24 requires states to «take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. » This provision is especially relevant to the protection of children against FGM/C. Article 43 of the CRC establish the Committee on the Rights of the Child, which monitors and reports on the implementation of the Convention and the Optional Protocols. The Committee examines the initial and periodic reports on the national situation of children's rights, consequently making recommendations if needed. By analyzing the country reports (e.g., the Concluding Observations of the Committee on the Rights of the Child: Ethiopia of 1997, paragraph 6, or the Concluding Observations of the Committee on the Rights of the Child: Sudan of 1993, paragraph 13), we can see that FGM/C is consistently recognized as a harmful traditional practice, which the Committee repeatedly call to terminate. Moreover, it is recognized as a violation of the best interests of the child and of children’s rights.

4.6. The African Charter on Human and Peoples’ rights (Banjul Charter). The African Charter on Human and Peoples’ rights (Banjul Charter) is a regional human rights instrument, intended to promote and protect human rights and basic freedoms in the African continent. The Charter is ratified, as for 2016, by 54 states. 121 In the African Charter are recognized individual and collective (peoples') rights as well as State’s duties to promote and safeguard them. The Charter generally addresses the protection of the fundamental human rights of women and girls e.g. articles 4 and 5 acknowledge the respect for life, integrity of person, and the «right to the respect of the dignity inherent in» every individual and article 18.3 declares that States shall ensure the elimination of every discrimination against women. The African Commission on Human and Peoples’ Rights (African Commission) was established pursuant to Article 30 of the African Charter and was mandated to promote and protect human rights and peoples' rights throughout the African continent as well as interpret the African Charter.122 Furthermore, based on Article 45, the African Commission is tasked, among others, with considering individual complaints of violations of the Charter, investigating

121 Ratification Table: African Charter on Human and Peoples' Rights, 2016. 122 Ankumah, Evelyn A., African Commission on Human and Peoples' Rights, Kluwer, 1996, pp.59-60.

34 concerns relative to the promotion of human and peoples’ rights in Africa, prescribing remedial measures, and to co-operate with other African and international institutions involved in the promotion of human and peoples’ rights.

4.7. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol). The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, better known as a Maputo Protocol, adopted in 2003 by the African Union was signed by 15 and ratified by 36 member states.123 The Protocol was not signed or ratified by three countries, which are Botswana, Egypt, and Tunisia; all of these countries have a recurring FGM/C issue. The Maputo Protocol bore several criticisms, mostly regarding the provisions regarding reproductive health, which is one of the main reasons why it was adopted after 8 years after the first draft. In 2007, Pope Benedict XVI stated, that the Protocol’s provisions trivialize abortion. 124 This statement was soon followed by the Joint Christian Council, which opposed the Article 14 that guarantees the right to abortion in cases «of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the fetus. »125 Yet, no matter the opposition, the Maputo Protocol was still adopted. It addresses several topics, such as reproductive health rights, rights to protection from sexually transmitted infections, rights to protection from such harmful practices as child marriages and, of course, FGM/C. As was provided in Ruth Berry Peal case, 126 the Protocol offers a possibility for women to defend their position. Thus, the Protocol became a milestone in the promotion and protection of women’s rights, and a major step in the eradication of FGM/C as well. As stated by the Article 4 of the Protocol, States parties are required to «…adopt such other legislative, administrative, social and economic measures as may be necessary to ensure the prevention, punishment and eradication of all forms of violence against women. » Article 5 of the African Women’s Protocol is specifically dedicated to the issue of harmful

123 List of countries, which have Signed, Ratified/Acceded the Maputo Protocol, African Union official website. 124 Pope to diplomats: Respect for rights, desires is only path to peace, Catholic News Service, 8 January 2007. 125 Scheier R., Rights Treaty in Uganda Snags on 'African Values', Women's News, 2 June 2008. 126 Waweru N., What you need to know about the Maputo Protocol, The Star, 27 April 2015.

35 cultural practices, and states that: «state parties shall prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recognized international standards». Harmful practices, according to the Article 1 (g) of the Protocol, are defined as «all behavior, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education, and physical integrity». Based on this definition, we can safely assume that the FGM/C is clearly one of such harmful practices; hence, its continued execution not only infringes this provision, it is in contravention with the Protocol itself. The Maputo’s Protocol, therefore, requires of the state parties, which signed it, to take concrete steps to enforce its provisions, such as the enactment and implementation of legislative instruments that ban this practice.

4.8. African Charter on the Rights and Welfare of the Child (Children’s Charter). Children’s Charter is a comprehensive instrument that sets out rights and defines universal principles and norms for children, following the CRC’s standard of “best interest of the child shall be the primary consideration”. The African Charter on the Rights and Welfare of the Child highlights in its Preamble that the child requires special safeguards and care with regard to her/his health, physical, mental, moral and social development due to his/her physical and mental immaturity. It further states in the Article 14 that the child (i.e. any person under the age of 18) shall have the right to health services, while Article 16 of the Charter sets forth the state obligation to protect and prevent child abuse and torture. In Article 21 of the Charter, it is specifically proffered protection against harmful social and cultural practices. The article states: «State parties to the present Charter shall take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and in particular: (a) those customs and practices prejudicial to the health or life of the child; and (b) those customs and practices discriminatory to the child on the grounds of sex or other status. » Similar to the African Commission, the African Committee on the Rights and Welfare of the Child (African Children’s Committee), as enshrined in Article 32 of the African Children’s Chart, is instructed to ensure that state parties defend and promote the fundamental rights and welfare of the African child. This proves that at least on a theoretical level, the state parties to the African Children’s Charter recognize the need to protect and spread the ideals of fundamental

36 human rights, including the rights and welfare of the child, as well as the danger that harmful practices can lead to.

4.9. The Convention Relating to the Status of Refugees and the European Court of Human Rights. With the refugee crisis, European countries are the most sought after due to their accessibility and relative safety. As provided by the World Economic Forum, more than 1 million refugees and migrants have arrived in Europe in 2016. 127 The Refugee Convention is the cornerstone of the international reply to forced migration128 and it lays down the asylum legislation and the conditions that one has to fulfill in order to be granted asylum.129 The United Nations High Commissioner for Refugees, in its Guidance, recognized FGM/C as a form of persecution. 130 Thus, a young girl or a woman, that seeks asylum on the grounds of being subjected to FGM/C or fear of being subjected to FGM/C might be granted asylum when some elements are simultaneously fulfilled.131

127 Batha E., Europe's refugee and migrant crisis in 2016 in numbers, World Economic Forum, 5 December 2016. 128 Nicholson F., Twomey P., Refugee Rights and Realities: Evolving international concepts and realities, Cambridge University Press, 1999, pp. 13. 129 UNHCR, Convention and Protocol relating to the status of refugees, Art. A (2). «The term refugee shall apply to any person who owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.» 130 Ibid, par.7. «There is no doubt that … female genital mutilation … are acts which inflict severe pain and suffering – both mental and physical – and which have been used as forms of persecution, whether perpetrated by State or private actors.» 131 UNHCR, Guidance note on refugee claims related to Female Genital Mutilation, Protection Policy and Legal Advice Section Division of International Protection Services, 2009, par. 22. Those are the membership of a particular social group (PSG), religion, and/or political opinion are the most commonly invoked Convention grounds for the well-founded fear of persecution.

The efforts of the European Union are quite noteworthy with its progressive adoption of several resolutions, such as the Resolution on FGM/C in 2001,132 Resolution 2004/2020133, Resolution 2007/2145134, Resolution 2008/2071,135 the recent resolution of 2014 entitled ‘Towards the Elimination of Female Genital Mutilation’,136 etc. In the case of ECHR, the relevant to FGM/C are the articles stating that «everyone’s right to life shall be protected by law» (i.e. Article 2) and «no one shall be subjected to torture or to inhuman or degrading treatment or punishment » (i.e. Article 3). The violations of these two provisions are often the basis of the European Court of Human Rights’ cases regarding FGM/C. Moreover, while the ECtHR has repeatedly stressed in its decisions that exposing a young girl or woman to FGM/C amounts to ill-treatment contrary to article 3 of the ECHR,137 its decisions are often not in favor of its applicants. Frequently, the applications regard applications for asylum, refugee status or a residence permit e.g. the cases Collins and Akaziebie v. Sweden138, Izevbekhai v. Ireland,139 Omeredo v. Austria,140 Sow v. Belgium,141 Bangura v. Belgium,142 Ameh and others v. the UK,143etc. The selected cases reveal some common elements that can be identified in the body of the decisions taken by the ECtHR. Often, as exemplified by the above-mentioned cases, the Court declares the applications inadmissible as being manifestly ill-founded. The recurrent reason

132 EP Resolution 2001/2035(INI) (№ 93), which expresses the hope that the right to asylum for those at risk of being subjected to FGM/C was being recognized. 133 EP Resolution 2004/2020(INI) (№93), which ensures that FGM/C is considered a reasonable argument for an asylum claim in order to protect the asylum seeker from inhuman treatment (par. 14) 134 EP Resolution 2007/2145(INI) (№93), which calls upon states to integrate a gender-sensitive approach in existing asylum legislation (par.92) 135 EP Resolution 2008/2071(INI) (№93), which obliges states to carefully examine each asylum request made by parents on the grounds that they are threatened in their home country for having refused to consent to their child undergoing FGM/C. (par.3) 136 EP Resolution 2014/2511(RSP) (№93), which is focused on the prevention of FGM/C and the improvement of support for victims, including protection for women at risk. 137 ECtHR - Izevbekhai v Ireland, Application no. 43408/08, par. 36. 138 ECtHR - E. Collins and A. Akaziebie v. Sweden, Application no. 23944/05 139 ECtHR - Izevbekhai v. Ireland, Application no. 43408/08. 140 ECtHR - Omeredo v. Austria, Application no. 8969/10. 141 ECtHR - Sow v. Belgium, Application no. 27081/13. 142 ECtHR - Bangura v. Belgium, Application no. 52872/10. 143 ECtHR - Ameh and others v. the UK, Application no. 4539/11.

38 behind the Court’s rejections are frequently based on the fact that the practice at issue is prohibited by the national law (e.g. Collins and Akaziebie v. Sweden) and/or the lack of credibility on the applicant’s side (e.g. Ameh and others v. the UK) and/or the fact that a residence permit was granted in the defendant country (e.g. Bangura v. Belgium). Moreover, in the majority of cases, the ECtHR states that if the applicant returns to her country, it is believed that they will not be forced to undergo FGM/C or that an internal flight is a sufficient, alternate option (e.g. Omeredo v. Austria). We can see that while the Court holds the title of a «watchdog of human rights»,144 there is still a reluctance to offer protection on grounds of FGM/C. Moreover, the Court’s reasoning145 seems a bit a suggestio falsi, furthermore one that lack reasonability. First, as was in the case of Salah Sheekh v. the Netherlands, 146 an internal flight might work as an alternate option only in case if the possibility to travel can be guaranteed. In the case of Omeredeo v. Austria, the probability for the applicants to safely travel was not checked. Secondly, by stating that the “considerable amount of strength and independence” is enough to protect from FGM/C we undermine the danger of the practice and insult its victims. In conclusion, a fair assessment and a background check on the situation shall be a requirement in cases regarding FGM/C and other, similar harmful practices. As for now, the legal protection offered by the ECtHR to applicants with FGM/C-related claims is severely limited. 147

144 Flogaitis S., Zwart T., Fraser J., The European Court of Human Rights and its Discontents: Turning Criticism Into Strength, Edward Elgar Publishing, 2013, pp. 170. 145 ECtHR - E. Collins and A. Akaziebie v. Sweden, Application no. 23944/05, pp.9. «It is difficult to see why the first applicant, having shown such a considerable amount of strength and independence, cannot protect the second applicant form being subjected to FGM, if not in Delta State, then at least in one of the other states in Nigeria where FGM is prohibited by law and/or less widespread than in Delta State». 146 ECtHR - Salah Sheekh v. the Netherlands, Application no. 1948/04, par. 141. «A precondition for relying on an internal flight alternative certain guarantees have to be in place: the person to be expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise, the more so if in the absence of such guarantees there is a possibility of the expellee ending up in a part of the country of origin where he or she may be subjected to ill‑treatment. » 147 Middelburg A., Balta A., Female Genital Mutilation/Cutting as a Ground for Asylum in Europe, International Journal of Refugee Law, vol. 28, issue 3, 22 December 2016.

4.10. Conclusions. As was previously discussed, FGM/C is directed solely towards women and girls and can interfere with the full enjoyment of their fundamental rights and freedoms; moreover, FGM/C can cause significant short-term and long-term physical and mental damage to its targets. By analyzing the major mechanisms and tools of Universalism, we can see several patterns: First, FGM/C is a practice that violates several fundamental rights i.e. the right to life and physical integrity including freedom from violence, the right to health, the rights of the child, and in specific the rights of women e.g. to be free from all forms of discrimination, etc. Secondly, FGM/C is not exclusively an African continent concern as a common misconception dictates. While, undoubtedly, FGM/C is more practiced in African countries (See Chapter VI), Western countries have also adopted legal measures, designed to eradicate the practice, though, these measures are noticeably directed at the immigrant populations, which echoes the provisions of various international acts. Thirdly, while the below-mentioned treaties are signed and ratified by the majority of the world states, the compliance at the domestic level leaves a lot to be desired. Thus, we may ask ourselves whether monologue measures are efficient in case of countries with high percentage of FGM/C and where culture plays a dominant position in the lives of the society. In addition, the practice is disseminating and prolonging the existence of the discriminatory belief of the subordinate role of women and girls in the society. Needless to say, a global cooperation to eradicate the practice is essential. Yet every major event starts small. The domestic measures that have been taken by states will be discussed in later chapters.

Chapter V. Cultural Relativism in Practice: Domestic Legal Framework

It is what my grandmother called the three feminine sorrows. She said the day of circumcision, the wedding night and the births of a baby are the triple feminine sorrows. Feminine Pains (poem, 1998) -Dahabo Ali Muse, Somali.148

5.1. Introduction. In this chapter, we will analyze different methods that countries with the highest percentages of FGM/C implement to fight and eradicate the practice. The main question that this part seeks to answer is «What legal initiatives have been put in place by the local community to abolish FGM/C? » and «What is the most efficient system, the monologue or the dialogue one in regards to a country where culture plays a more dominant role than international rules? ». As was previously discussed, the historical background of FGM/C is hard to identify, yet the practice is commonly supported by traditional beliefs, customs, and attitudes. Generally, in history (See Chapter III), it was believed that FGM/C would ensure women’s virginity and the decrease of the female desire. In Kenya and Sierra Leone, as well as other communities, FGM/C is considered as a rite of passage to womanhood. In Sudan, Somalia, and Egypt the practice is valued as a mean of preserving a girl’s purity, to guarantee that her virginity is intact. In most of these countries, the women who refuse to go through the practice are socially ostracized and persecuted. Thus, we may assume that the significance of FGM/C in various communities is extremely high. The abovementioned serves as the basis of cultural relativism supporters, whose standing stems from the desire to preserve long-standing traditions and let the communities cultivate their practices (See Chapter III). Yet, as will be discussed below, European and North American countries look at FGM/C through the prism of universalism, thus considering the practice as unethical and even a human rights violation of the international established principles (See

148 Ali Muse D., Feminine Pains, A Poem for Women Who’ve Suffered Female Genital Mutilation, Sister Somalia.

Chapter IV). The dichotomy between these two theories is well illustrated by the methods implemented by the governments to fight against the practice. While some (usually the supporters of universalism) opt for codified legal sanctions (measures that will be referred as “monologue measures”), other countries (where the dogma of cultural relativism is relevant to a greater extent) prefer a different approach that consists of employing the work of traditional storytellers or establishing work-groups that educate the communities on the dangers of FGM/C (measures that will be referred to as “dialogue measures”). Regrettably, some other countries choose to leave the issue untouched. Furthermore, we can see a palpable pattern, in countries where culture is the predominant ruler of the society, legal measures play a secondary, less significant role to the prohibition of FGM/C. Thus, in such countries, solely «monologue measures» are powerless, and «dialogue measures» must be applied. In the conclusions, we will further examine what methods might cause the reduction and consequent eradication of the practice. The order in which the countries will appear directly depends on whether the culture plays the dominant role in the society or human rights as a concept prevails over the cultural aspects. The following chapter will be structured by the domestic legal measures enforced by the state and will mainly follow the subsequent structure: a) Main reasons why the practice is performed in the specific country; b) Legal acts that regulate the issue and; c) Taken measures or proposed initiatives.

5.2. No legal measures. FGM/C in Malaysia is called sunat perempuan, a Malaysian word for circumcision. There are 4 recognized Sunni Islam schools (Hanafi, Hanbali, Maliki, and Shafi’i), however only one of the four schools regards FMS as compulsory and that is the Shafi’i school of Islamic Law, which consequently is the most adhered to. This practice is considered as a wajib (i.e. a religious duty commanded by Allah), yet Sisters of Islam (SIS), an NGO, which advocates for women’s rights, insists that sunat is not even once mentioned in the Holy Quran. Still, it is a correct assessment that there is a strong link between Malaysia’s state religion and this Sunnah tradition as the primary reason for FGM/C is the religious obligation and tradition. A study conducted in 2012 by Dr. Maznah Dahlui, found that 93% of surveyed Muslim women had been

42 circumcised.149 In 2009, the Fatwa Committee of the National Council for Islamic Religious Affairs of Malaysia claimed that FGM/C is compulsory for all Muslim women; however, if it was too dangerous, it could be discarded. According to the Fatwa Committee, uncut women are not considered as Muslim. 150 FGM/C is usually performed on girls anywhere between 6 and 12 months, however, if a woman were to convert to Islam, she will have to undergo the procedure irrespectively of her age. Other reasons for undergoing FGM/C consist in preserving young girls’ purity and lower their sex drive. The procedure is done by a mak bidan, a traditional practitioner, similar by her competencies to a post-partum midwife. As for now, there is no Malaysian law outlawing FGM/C, though public health providers are banned from performing the surgery by a government circular. As reported by Marta Kasztelan151 and Zofia Reych152, there are a disturbing and growing numbers of Malaysians who find the practice socially acceptable. Moreover, there is a rise of FGM/C in general. In some aspects, Indonesia is quite similar with Malaysia. Indonesia, as the nation with the largest Muslim-majority, is mostly constituted by the followers of the Shafi’i school of Sunni Islam, which as we learned, consider sunat perempuan an essential part of the Islamic teachings, a religious duty. FGM/C has a strong religious connotation, perceived as a required act of faith and part of the tradition. As an example, the Islamic foundation Yayasan Assalaam, since 1958 is sponsoring mass ceremonies of sunat perempuan. During the lunar month of the Prophet Muhammad’s birthday, the foundation “celebrated” it by cutting several girls. The foundation Assalaam, which runs a mosque and several schools, paid the girls ‘parents 80,000 rupiahs (6 $ USA) and a bag of food for each daughter they brought to be cut. 153 In 2006, the Indonesian Ministry of Health banned FGM/C, becoming one of the first countries in doing that. This decision was followed by vivid debates over the benefits and

149 Dahlui M., The Practice of Female Circumcision in Malaysia, University of Malaya's Department of Social and Preventive Medicine, 10 May 2012. 150 Ainslie M.J., The 2009 Malaysian Female Circumcision Fatwa: State ownership of Islam and the current impasse, Women's Studies International Forum, Vol. 52, 15 July 2015, pp.3. 151 Kasztelan M., Female Circumcision Is Becoming More Popular in Malaysia, Vice, 20 February 2015. 152 Reych Z., Malaysia: Female genital mutilation on the rise, ASEAN Today, 22 June 2016. 153 Haworth A., The day I saw 248 girls suffering genital mutilation, The Guardian, 18 November 2012.

43 downsides of FGM/C, with the majority of Indonesia’s clergy supporting the practice, and human rights activists opposing it. However, the ban did not have the desired effect, and it was mostly disregarded. Even though the practice was illegal, several hospitals continued offering a birth packages to the new parents, which would include vaccinations, ear piercing, and performing sunat perempuan. The Indonesian Ulema Council (MUI), the highest Islamic advisory body in Indonesia, quickly and strongly opposed the ban, stating that: «Female circumcision is part of Islamic teachings and that it is their constitutional right».154 In 2010, the ban was also criticized by Nahdlatul Ulama (NU), the largest Muslim organization in Indonesia who has more than 40 million followers;155 moreover, it issued an edict in support of FGM/C. The opposition from the influential Islamic clerks forced the government to give in and in 2010 lift the ban. In the same year, several regulations by the Ministry of Health were issued, most of them institutionalizing the ritual into medical practice and authorizing certain medical professionals, such as doctors, nurses, midwives to perform FGM/C. Nevertheless, in the countryside where there is no access to medical professionals, the procedure is executed by dukun – women that are believed to possess shamanic healing skills. 156 Yohana Yembise, the Minister for Women’s Empowerment and Child Protection, embarked on a campaign, supported by Amnesty International, to repeal the law and to change religious and women’s group mindset. In her campaign against FGM/C, she will use “scientific proofs” to raise awareness of the dangers of FGM/C and dissuade the many beliefs surrounding this practice. 157 It is too soon to discuss the results. Yet with the former United Nations Secretary General Ban Ki-Moon’s call for the end of FGM/C by 2030, as well as the support and determination of various individuals and NGOs, everything is possible. As we can see, leaving the issue untouched leads to an unchanged or even a worsening of the situation.

154 Jewish Press Stuff, Indonesian Muslims Rejects Ban on Female Circumcision, Jewish Press, 24 January 2013. 155 Ghosh R., Making Sense of the Secular: Critical Perspectives from Europe to Asia., New York: Routledge, 2013, pp. 202. 156 Watson C.W., Ellen R.F., Understanding Witchcraft and Sorcery in Southeast Asia, University of Hawaii Press, 1993, pp.127. 157 Asian Correspondent Staff, Indonesia renews campaign to end female genital mutilation, 27 September 2016. Yi B.L., Indonesia launches new campaign to end female genital mutilation, Reuters, 21 September 2016.

5.3. Monologue measures exclusively. FGM/C in Yemen differs significantly across various regions. In the Coastal region, 69% of women underwent FGM/C, while in comparison in the Desert regions the prevalence rate is 40%.158 97% of the reported procedures occurred in the first month of life159. Aside from FGM/C, there is another practice widely occurring in the coastal regions, known as al- takmeed.160 In 2001, the government banned the performing of FGM/C in public and private medical facilities; however, the execution of this practice at home was not illegalized. A national campaign was started in 2008161 to eradicate or at least reduce the percentage of FGM/C by 2012. 162 The goal was to be achieved by discussing with the religious authorities the danger of these harmful practices, as well as educating them on how to discuss this issue with their followers. Unfortunately, the results were ominous and no visible outcomes are apparent. As reported by the Annual Report of Amnesty International of 2016/2017, women and girls are still facing the danger of FGM/C and inadequate protection against the practice, among various other abuses163. Even if officially the FGM/C practice was banned in Guinea in 1965, it still has one of the highest percentages of executions, with 97% of women and girls aged 15 to 49 years that have undergone FGM/C and/or other harmful practices. 164 The political and religious Guinean authorities have considerably aided in making this practice even more widespread. The role of baradjeli – the Fulani term for the woman who performs the ritualized practice of FGM/C on young girls is a highly respected and passed through generation’s occupation165. FGM/C in

158 Orchid Project - FGM in Yemen as high as 69% in coastal regions, 11 June 2010. 159 Ibid. 160 Al-Ariqi A., YEMEN: 24 percent of Yemeni women experience genital mutilation, FGM Network, 12 February 2007. It entails of pressing a heated compress on the genital of a four-day baby girl repeatedly for about an hour. The compress consists of a material, stuffed inside with heated salt and/or sand, with some oil and herbs. The rite is carried out from 40 days to four months and it is considered to make a girl or woman less susceptible to sexual excitement. Moreover, it is scientifically proved that this procedure has lasting physical effects, including damaging nerve endings. 161 IRIN News, Government body moves to stem female genital mutilation, 1 July 2008. 162 Stop FGM Middle East, Yemen: Plenty of studies but little action. 163 Amnesty International - Annual Report of 2016/2017, Yemen. 164 United Nations Human Rights, Female Genital Mutilation in Guinea on the rise – Zeid, Office of the High Commissioner. 165 La Rose T., In Guinea, renouncing the family tradition of female genital mutilation, UNICEF, 12 February 2014.

Guinea is considered a rite of passage that was historically accompanied by big celebrations, even richer than weddings. Groups of girls were traditionally excised together; yet, the fear of facing legal sanctions166 and the expensiveness of the ritual contributed to the fact that “group FGM/C” is not practiced anymore. However, it is too soon to state that the practice is eradicated, as it is most probable that they just became individual and more difficult to unveil by going underground. As tradition dictates, FGM/C is commonly carried out by a well-respected long- established practitioner on this “craft”. In many areas of Guinea, custom commands, that women and girls that are going to undergo FGM/C, are to go to special large encampments that are built near rivers.167 Men are not allowed to stay or even be near to these establishments. The ritual starts with the sacred forest spirit, also called Nyömou, possibly a deity of fertility, which gives its blessing so the girls are reborn into women. After that, the ceremony is properly initiated and the women are escorted to these camps, where they will spend weeks or even months. For many of these girls, it is a first experience of living without a male oversight or without carrying out their daily chores and routines, as in these camps, they only perform a series of religious and traditional rituals. Usually, girls go in large groups, some says that at times reaching up to 500. 168 After the excision is performed, the girls are given new things such as clothes, jewelry, numerous gifts and food offerings.169 The FGM/C is treated as a transition to womanhood170 that is why after it, they are accepted in the adult social circles and treated as equals. Moreover, after the ceremony, they are given a new, special name, which will stand for something personal about them e.g. a personality trait or a description of their appearance. For the girls, who feel as if they lack identity or voice, this ceremony is essential, as its meaning is to give a woman back her individuality and to make them empowered. As we can see, this ceremony has its positive aspect, which must be cherished and respected; however, the process of excision must be long forgotten. Furthermore, analyzing the current situation, we may conclude that establishing legal consequences is not enough to stop the performing of this practice.

166 United Nations Human Rights Office of the High Commissioner, Female Genital Mutilation in Guinea on the rise, OHCHR, 25 April 2016. 167 All Africa, Gambia: She She She - Jujuwoo No Child's Playground, We Cut Women Not Children, 29 October 2015. 168 Paulat L., Why Is Female Genital Mutilation on the Rise in Guinea?, Care2, 1 May 2016. 169 Child Rights International Network, Tradition and Rights: Female genital cutting in West Africa, pp.12 170 Kaplan A., De Senegambia a Cataluña: procesos de aculturación e integración social (transl. From Senegambia to Calatonia: acculturation and social integration processes), Barcelona: Fundación, La Caixa, 1998, pp.42.

In the UN report on the increase of FGM/C, it was stated that in Guinea the refusal to undergo FGM/C and the non-excision of girls are considered a disgrace to them and to their family, an act of feebleness that is frowned upon by the members of their communities. The fear of being socially ostracized or undesirable in regards to marriage, pressure girls to request excision.171 Guinea’s Constitution of 2010, explicitly prohibits cruel, inhuman or degrading treatment (Article 6). This amendment was added after the adoption of the 2000/010/AN law on reproductive health in 2000 by the National Assembly of Guinea; Article 13 of this law proclaims that « anybody who inflicts genital mutilation upon another person shall be subject to punishment according to the Penal Law». Accordingly, in the Penal Law of 1994 is provided an article that specifically addresses genital mutilation i.e. Article 265: «Castration is the ablation or the mutilation of the genital organs of either a man or a woman. Any person guilty of this crime shall be sentenced to the punishment of hard labor for life. If death results within 40 days after the crime, the perpetrator will be sentenced to death». As we can see, this article prohibits FGM/C and provides for the death penalty in case of the breaching of this article. Were these measures effective? Hardly. Nowadays, despite the Decree 2010, which condones public or private health institutions to perform FGM/C, there is an increasing and disturbing tendency towards its medicalization, which is responsible for approximately 22% of FGM/C cases. 172 As a predominantly Muslim country, Djibouti is divided into two opposing sides, with one side supporting FGM/C, considering it a religious practice, and the other actively opposing it. Since 1995, the Penal Code was amended to include provisions prohibiting and criminalizing this practice, specifically the Article 333 was added, which provides that «acts of violence resulting in Genital Mutilation are punishable by imprisonment for 5 years and a fine of 1,000,000 francs (circa 2.000$ USA).» Moreover, Djibouti was the platform of several campaigns, that had been implemented with the support of international organizations e.g. UNICEF, UN Women, etc. Unfortunately, they have been mostly unsuccessful. The National Union of Djiboutian Women, created and

171 Guilbert K., Girls in Guinea cut at earlier age as female support for FGM rises, Thomson Reuters Foundation, 25 April 2016. 172 Ras-Work B., Legislation to address the issue of Female Genital Mutilation (FGM), United Nations Division for the Advancement of Women (UNDAW), 21 May 2009.

47 sponsored by UNICEF in 1977,173 launched a campaign, aimed at changing the public opinion on FGM/C and if not, trying to persuade the communities to perform the lighter form of this practice. The results were opposite to the one that the campaign tried to reach, all because of a misinterpretation and wrong translation. While the campaign tried to persuade to perform the FGM/C – Sunna form (which corresponds to the Type I), in the Djibouti Sunna form corresponds to Type III. In 1997, the “Project to Fight Female Circumcision”, launched by the Ministry of Health and assisted by the United Nation Fund for Population (UNFP) was soon drained, as it lacked funds and did not receive any approval by the higher political authorities.174 For now, no further steps were taken by the government. In regards to Europe, in most European countries FGM/C is legally banned, either through specific criminal provisions (e.g. Austria, Denmark, Italy, Spain, Sweden, Switzerland, the UK) or through provisions in the Penal or Criminal Code that bans bodily injury and mutilation (e.g. Finland, France, Germany, the Netherlands). As an example, in Article 32 of the Italian Penal Code, it is stated that «nobody may be forced to undergo a certain treatment, if not by law; law cannot violate limits imposed by respect for the human being anyway. » The provision is specified in the Articles 582 and 583, which declare, that genital mutilation is sentenced with 3 to 7 years' imprisonment in case if it causes illness or puts the victim's life at risk or produces a permanent weakening of a sense or an organ; or it can be sentenced from 6 to 12 years' imprisonment if it causes loss in using one organ and reproductive capacity. 175 In 2006, the Italian Parliament passed a law - The Law n ° 7/2006, which introduced in the Penal Code the articles 582 and 583. This initiative was heavily influenced by a court case that happened on 25 November of 1999. An Egyptian citizen took his daughter to Egypt to be infibulated without informing and without receiving consent from his Italian wife. The judgment from the Milano's Court was symbolic and quite disappointing. The man was charged with having pursued grave

173 The United Nations Children's Fund, Dijbouti: Status of Girls and Women in the Middle East and North Africa, MENA Gender Equality Profile, UNICEF, 2011, pp.3. 174 Martinelli M., Olle-Goig J.E., Female genital mutilation in Djibouti, African Health Sciences, Vol. 12(4), 2012, pp. 412–415. 175 Criminal Procedure Code of the Republic of Italy, 1988.

48 personal bodily harms, which at the time was condemned to only a 2 years' imprisonment; however, the punishment was soon suspended for being granted extenuation and plea bargain. 176 After public campaigns and criticism, the abovementioned law was passed, which introduces regulations on the prevention (e.g. informative campaigns; training of health workers) and prohibition of the practice of FGM/C. Another example is the Netherlands, where FGM/C is considered as a highly severe and harmful form of child abuse. It is punishable under general criminal legislation (section 300-304, 307, 308 of the Penal Code), with a maximum imprisonment of 12 years or a fine of maximum € 76.000. 177 In case the parent(s) gave the task, pay for it, provide means that will be used for FGM/C or assist during the practice, they will be punishable as well as their actions will be seen as instigation, aiding and abetting. Since February 2006, FGM/C performed abroad is punishable too, in case the suspected person has a Dutch nationality or has a habitual residence in the Netherlands. From 2001, minor girls can apply for asylum based on a serious threat in their home country of FGM/C. As for the United Kingdom, a remarkable fact is that it is the first country with a specific law prohibiting FGM/C. Yet only one FGM/C prosecution was brought to court and both defendants were declared innocent. 178 That case happened in 1985, it is quite naïve to think that the lack of prosecutions is a demonstration of the absence of damaging practices in the UK. In 2000, a medic who offered to perform FGM/C was struck off the medical register.179 The offer was filmed on a hidden camera, and, eventually was transmitted under the title “Cutting the rose”. 180 Yet no prosecution was made. As provided by Collis, since the ban of the practice over 30 years ago, no successful prosecution took place, yet in 2016, the medical staff of England’s National Health Service recorded close to 5,500 cases of FGM/C among its patients.181 The same situation goes for the Netherlands, Austria, Belgium, Switzerland, etc.

176 De Masellis M., Giordano E.A., Violenza in famiglia. Percorsi giurisprudenziali: Italian Law n°7/2006 (introducing Article 583 bis (Female Genital Mutilation Practices) and Article 583 ter (Ancillary Penalties) in the Criminal Code, European Institute for Gender Equality, Giuffrè, 2011, pp.241. 177 Penal Code of the Netherlands, 1994. 178 Hudson P., FGM: Lack of convictions 'a national scandal', BBC News, 15 September 2016. 179 Dorkenoo E., First UK Prosecution for FGM Is a Watershed Moment, Huffington Post, 24 March 2014. 180 Poldermans S., Combating Female Genital Mutilation in Europe, University of Vienna, 14 July 2006, pp. 57. 181 Collis H., Female genital mutilation cases rise in UK, but no prosecutions, Politico, 6 March 2017.

This status quo must be considered thoroughly. Why there are no criminal prosecutions regarding FGM/C crimes? Is it the multidimensional character of FGM/C, that impedes tracing the crime and/or provide sustainable evidence? Or is it the cultural aspect and sensitivity of the issue that holds back the prosecutions? There is no clear-cut answer to the posed questions, thus providing room for speculations and debates. As for now, France is the only European state that has a successful systematic practice of criminal court cases regarding FGM/C. Approximately 40 cases182 were evaluated by the court since 1979. 183 Moreover, all countries have legislation regarding extraterritorial jurisdiction (i.e. the principle of extraterritoriality), which is the assertions of legal power beyond territorial borders, as well as the possibility to undertake legal proceedings, under certain conditions, when the act is committed outside of the country.184 Furthermore, most countries have removed the principle of double incrimination (i.e. double criminality) from their legislation, making it possible to take proceedings even in the case when FGM/C is not criminalized in the country where it is committed. Another essential notion is the concept of ‘due diligence’, which regards state responsibility for non-state acts of violence.185 In the Declaration on the Elimination of Violence against Women (DEVAW), due diligence standard is defined in Article 4 as the state obligation to “pursue by all appropriate means and without delay a policy of eliminating violence against women”. In this obligation is included the duty ‘to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the state or by private persons’. Due diligence, since its development in the Inter-American Court of Human Rights, has become an essential part of international law, a customary human right standard. Furthermore, due diligence, in 2006 was officially recognized by the UN as a tool

182 Abraha Seare K., Dealing with Female Genital Mutilation/Cutting in Western Europe: Challenges of Achieving Zero Tolerance, Institute of Social Studies of the Hague, December 2012, pp. 23. 183 Weil-Curiel L., Les mutilations sexuelles féminines. Un autre crime contre l’humanité: Connaître, prévenir, agir, Supplément au Bulletin de l’Académie nationale de médecine (lit. translation: Female genital mutilation. Another crime against humanity: To know to prevent, to act. Additional Bulletin of the National Academy of Medicine), Vol. 188, no. 6, 10 June 2004, pp. 115. 184 Colangelo A.J., What Is Extraterritorial Jurisdiction, Symposium on Extraterritoriality, Vol. 99, 6 September 2014, pp.1334. 185 Hasselbacher L., State Obligations Regarding Domestic Violence: The European Court of Human Rights, Due Diligence, And International Legal Minimums of Protection, Northwestern University School of Law, Northwestern Journal of International Human Rights, Vol. 8, Issue 2, Spring 2010, pp. 193.

50 to fight violence against women. If we analyze the recent rulings of the European Court of Human Rights (ECHR), the Court had developed the due diligence standard, by elaborating its meaning and scope, mostly concentrating on the positive obligation and duty of the State to avert, protect, prosecute and redress violence against women and gender-based discrimination. In May 2011, the Council of Europe opened for signature the Convention on preventing and combating violence against women and domestic violence, which is also known as the Istanbul Convention. This treaty was heavily endorsed and promoted by the Council of Europe. The above-mentioned Convention is considered to be the first legally binding document, a landmark treaty, which "creates a comprehensive framework, policies and measures for the protection of and assistance to all victims of violence against women".186 Moreover, as stated in the Convention, its foremost focus is the deterrence of domestic abuse, the protections of victims, and legal consequences for the perpetrators. As enshrined in Article 38, one of the regulated issues is FGM/C. The Convention not only has its own monitoring mechanism (The GREVIO) and not only establishes as its first resolution and purpose «to defend women against all forms of violence, and prevent, prosecute, and eliminate violence against women», it also contains the due diligence standard in Article 5. In short, FGM/C in Europe is considered a punishable and harmful tradition, which must be battled effectively. European countries have taken appropriate measures in order to prevent and eradicate the practice e.g. the introduction of specific criminal legislation and/or of a statutory duty to report. Yet the only state that has a successful systematic practice of criminal court cases regarding FGM/C is France. As to regard to the USA, in 1996, after the case of Fauziya Kassindja187, a 19 years old Togolese girl, who sought asylum in the USA to escape the tribal practice of FGM/C, gender- based persecution became a valid ground to be granted asylum. 188 The precedent-setting case influenced the passing of a federal law banning FGM/C- 18 U.S. Code § 116 ‘Female Genital Mutilation’ The first ever conviction for FGM/C was in 2003, when Khalid Adem, an Ethiopian man residing in Georgia, who presumably excised his 2-year-

186 Convention on preventing and combating violence against women and domestic violence – Article 1.C. 187 U.S. Department of Justice - In re Fauziya KASINGA, file A73 476 695, decision of 13 June 1996. 188 Dugger, C.W., Asylum from Mutilation, New York Times, 16 June 2006.

51 old daughter's clitoris with a pair of scissors.189 As FGM/C was not specifically outlawed, he was charged with cruelty to children and aggravated battery. In 2005, as an aftermath of the case, an anti-mutilation law was passed. At the present time, 24 states in the U.S. also have laws against FGM/C, while other 7 states have “vacation provision” as part of their state laws prohibiting FGM/C. As a way to fight the increasing of this practice, a provision was passed in 2013 in order to halt families from sending their daughters to their home countries to be cut i.e. it closed a loophole that allowed the “vacation cutting”. This ad hoc provision illegalizes the deliberate transport of a girl out of the United States for the purpose of FGM/C.190 As for now, a report released in early 2016 by Safe Hands for Girls, showed that 513,000 girls and women were either affected - or at risk of undergoing FGM/C in the United States.191 Donald Trump statement192 that stopping migration will reduce the level of FGM/C is not a real problem-solver; talis qualis is not going to prevent the communities to perform the practice. To stop FGM/C an effort on many levels is needed, a work on people’s convictions is necessary to put an end to the practice. Morality aside, stopping the immigration flow will possibly diminish the rates of FGM/C in the USA, but not worldwide. Moreover193, with the support of the international human rights group Equality Now, a new legislation was introduced, which core goal is to establish a national strategy that could protect the girls from FGM/C. This national strategy in the form of a bill will establish a hotline for at-risk girls; will introduce a system to educate health care workers, teachers and others who works in close proximity to children of the practice and the signs of a threat to girls. By sending the girls away from our countries, we will just allow the practice to be performed in another place. As stated by Joe Crowley, the U.S. Representative for New York's 14th congressional district, «FGM is a sensitive subject, but one that needs to be talked about, especially because it robs girls of a chance at a normal life. »194 By pushing the issue out of our territory, we do not

189 USA Today, Man gets 10-year sentence for circumcision of 2-year-old daughter, 11 January 2006. 190 McConnell K., U.S. Taking Steps to Stop Female Genital Mutilation, IIP Digital. U.S. Department of State., 7 February 2013. 191 Equality Now, Female Genital Mutilation (FGM) in the United States, July 2016. 192 Bradner E., Trump aide: Immigration increases risk of female genital mutilation, CNN, 27 March 2016. 193 Crowley J., Vice Chair Crowley, Jackson Lee Introduce New Legislation Calling for a National Strategy to Protect Girls from Female Genital Mutilation, 5 February 2015. 194 Thompson N., Female genital mutilation: Why Egyptian girls fear the summer, CNN, 25 June 2015.

52 accomplish anything, but lowering the chances of preventing a case of FGM/C. The Trump presidency is a «cat in the sack» as we cannot be sure where it will take us. Canada is a prime example of how a state ought to deal with the issue of FGM/C. The first steps against the practice were taken in December 1994, when the Quebec Commission issued a paper in which it proclaims FGM/C as a practice, which jeopardizes "the right of women to personal inviolability, equality, and non-discrimination."195 As an aftermath, in May 1997 the federal government amended the Criminal Code and included under section 268.3 the performance of FGM/C as aggravated assault, liable to imprisonment for a term not exceeding 14 years. Moreover, as established by practice196, a parent who performs FGM/C on their child may also be charged with aggravated assault. In the case when the parent does not commit the act per se, yet explicitly agrees to have it performed by a third party, the parent will be convicted under the section 21.1 (b) of the Criminal Code i.e. abetting a person in committing an offense.197 Furthermore, the Criminal Code of Canada regulates several other matters that directly or indirectly address the issues of FGM/C. As an example, the ad hoc Article 273.3(1) addresses the cases, when girls under 18 are removed from the territory of Canada for the purposes of performing FGM/C. In the Ontario’s Child and Family Services Act of 1910, 198 is established a duty to report cases, where there is reasonable evidence that a child is in need of protection (e.g., from physical or sexual abuses, FGM/C, etc.). It is essential to mention that this Act puts the child best interests over other rights by taking priority over others law e.g. the laws regarding private life.199 Under the Article 122 of this Act, everyone who is directly or indirectly involved in a public sector i.e. «performing professional or official duties with respect to children», e.g. doctors, teachers or principals, are required to report their suspicions to the relevant authorities. Undoubtedly, these suspicions must be based on reasonable grounds, yet the list of these «reasonable grounds» is

195 Drapeau M., Wolde-Giorghis H., Sexual Mutilation: Unlawful Interference with Personal Inviolability, The Quebec Commission des droits de la personne, 21 December 1994, pp.6. 196 Priest L., Parents charged in genital mutilation, Saturday’s Globe and Mail, 20 March 2009. 197 Criminal Code, R.S.C.1985, c. C-46, s.268, as am. S.C. 1997, c.16, s. 21. 198 Child and Family Services Act, R.S.O. 1990, c. C.11. 199 Gutbi O., Preliminary Report on Female Genital Mutilation (FGM) (Ontario Violence against Women Prevention Section of the Ontario Women's Directorate, 10 April 1995.

53 broad enough to provide an appropriate safeguard in case if the child is indeed in need of protection. Moreover, the College of Physicians and Surgeons of Ontario (i.e. CPSO) requires that everyone who has suspicions that their patient underwent FGM/C have to report to the authorities, as well.200 Since the earliest 1990s, the State has recognized the fear of gender persecution as a ground for claiming refugee status. In the case Minister of Employment and Immigration v. Farah201 of May 1994, a woman and her 10-year-old daughter were provided refugee status by the Immigration and Refugee Board on the grounds that the girl was at risk of being subjected to FGM/C if she would have stayed or forced to return to her country of origin. To summarize, while there is no reliable statistics on the occurrence of the practice in Canada202, yet the effort to stop and eradicate the practice are perceptible. Monologue measures, as can be concluded, are efficient only in the case when the country in question has a systematic practice of law-abidance and where law plays a more dominant position rather than culture. Thus, monologue measures are mostly sufficient in Europe and North America, yet are inadequate in Africa and Asia.

5.4. Monologue and Dialogue Measures concurrently. Sierra Leone. In West Africa, a major role in setting traditions and rules is played by clandestine societies i.e. ancient cultural institutions that have existed for hundreds of years.203 An important aspect of the traditional cultural in Sierra Leone is the Bondo Society, a highly influential all-women group. The purpose of this underground society is to “help” young women earn the rites of passage into adulthood. In order, to pass these “rites of passage”, a girl must

200 The College of Physicians and Surgeons of Ontario, College Notice No.25 published in March 1992. 201 Minister of Employment and Immigration v. Farah (I.R.B. Toronto, Doc. 93-2198, May 10, 1994). 202 As provided in the human rights policy by OHRC (i.e. the Policy on female genital mutilation of 2009), in the last years Canada has experienced vast immigrant and refugee movements from countries in which FGM/C is frequently practiced e.g. Somalia and Nigeria. As already noted, the essence of FGM/C makes it almost impossible to provide reliable statistics on the occurrence of this practice. Nevertheless, based on consultations with members of the communities that are at risk, there is some indication that FGM/C is practiced in Ontario and across Canada. 203 Bjälkander O., Grant D.S., Berggren, V., Bathija H., Almroth, L., Female Genital Mutilation in Sierra Leone: Forms, Reliability of Reported Status, and Accuracy of Related Demographic and Health Survey Questions, Obstetrics and Gynecology International, March Volume, 29 March 2013, pp. 9.

54 undergo several cultural rituals among one of them is FGM/C.204 The Bondo Society is heavily supported by the political elite due to the role it plays «in ordering community life and its position as the depository of cultural repertoires»205. As can be understood, the membership in this society is much sought after, yet there is one pre-requisite to join this powerful group – go through FGM/C. The soweis is the local name for the women who are responsible for overseeing the initiation; moreover, they are the one who performs FGM/C. Undoubtedly, the practice is condemned by many and there are no lack of activists e.g. Rigiatu Turay, the Local Hero – as they call her, an activist in Sierra Leone, who works to end the abusive cultural practice of FGM/C, yet according to UNICEF’s statistical overview of 2013206, 88% of women in Sierra Leone have gone through FGM/C. The people of Sierra Leone, in general, stand by the position that abandoning the practice equals to the rejection of their culture and cultural identity. Most of them stand by the belief that FGM/C and male circumcision are similar if not the same and that is why the first ought to be allowed and accepted the same way that the other one. The ones, who refuses to experience the procedure, are often socially shamed, branded as promiscuous, undesired or unfit to be a mother and/or a wife. Moreover, it is a common misconception among the communities that the refusal to go through FGM/C could lead to having trouble conceiving or giving birth, to suffer psychological trauma e.g. hypersexuality, being followed by bad luck, etc. This social stigma is one of the main reason why this practice is still so common in the country. As explained by Batewa, a sowei interviewed by VICE News: «The girls want it, if they have not had it done, other women won't talk to them. They'll be mocked in the streets. »207 Regarded as an indispensable step towards womanhood, this practice is so deeply rooted in Sierra Leone's traditional culture that, as stated by Turay: «People would not listen — they have more respect for traditional laws than legal ones. » 208

204 Mgbako, C., Penetrating the Silence in Sierra Leone: A Blueprint for the Eradication of Female Genital Mutilation, Harvard Human Rights Journal, Vol. 23 (1), 4 October 2010, pp. 111. 205 Bosire O.T., The Bondo secret society: female circumcision and the Sierra Leonean state, University of Glasgow, 2012, pp.1 206 The United Nations Children's Fund, Female Genital Mutilation/Cutting: A Statistical Overview and Exploration of the Dynamics of Change, UNICEF, July 2013, pp. 27. 207 Acland O., Ebola Ended FGM in Sierra Leone, but Now It's Back, Vice News, 21 March 2016. 208 Ibid.

During the Ebola epidemic, in November 2014, Sierra Leone issued and enforced a nationwide ban on FGM/C with soweis fined 500,000 leones (approximately 123$ USA) if caught circumcising women or girls. Yet the preeminent results were achieved by the local chiefs with the help of the medical staff, who visited poor and rural provinces. During these trips, they were explaining the legal and medical consequences of performing FGM/C during Ebola, which is transmitted through bodily fluids e.g. the blood that is left on the tool after the procedure. The above-mentioned ban, which was largely effective and helped to drop dramatically the amounts of FGM/C performed in Sierra Leone, is still officially binding, yet its legal enforcement is almost non-existent. Nevertheless, what will happen after the end of the outbreak? The soweis will return to their usual business as FGM/C and the influential society of the soweis are heavily endorsed by the political elite of the country.209 As indicated by Turay, the politicians and officials are afraid of a confrontation with the soweis and the Bondo Society in general. Is it because of the immense respect that the soweis enjoy in the community, the abolishment of their activity could lead to losing votes during the elections as these women have immense political influence over the voters or is it because they share the same ideas – it is difficult to tell. The activist and opponents of FGM/C that are fighting against the practice are often met with disapproval and downright hostility. As an example, in 2009, in the city of Kenema (the largest city in the Eastern Province of Sierra Leone), a group consisting of four female journalists, were forcibly stripped and then were frogmarched through the main streets. The reason for this was their criticism of the practice as well as their unfavorable discussions on radio and media against FGM/C.210 Yet if we analyze the modern situation in Sierra Leone, there are some positive moments to notice. While Sierra Leone does not have a specific law condemning and/or banning the practice of FGM/C, on the local level some steps were taken. As an example, the chief of one of the northeast villages provided, that FGM/C is the choice of the woman, and either choice would be supported and not judged. The neighboring village’s chief - Abubakar Kabia, went as far as banning FGM/C altogether, stating that this practice holds back the development of the

209 O’Carroll L., Sierra Leone's secret FGM societies spread silent fear and sleepless nights, The Guardian, 24 August 2015. 210 Greenslade R., Women journalists abducted, stripped and marched through town, The Guardian, 10 February 2010.

56 community211. He reasoned that FGM/C is so common in Sierra Leone because of the influence of the Bondo Society. Abubakar Kabia is convinced that if the soweis’ income, which was previously gained by performing the procedure, would be replaced by other jobs, such as farming the surrounding uncultivated lands, they would drop the knife and stop performing FGM/C. The Islamic Republic of the Gambia has one of the highest national prevalence of FGM/C with 76.3% for girls and women in between 15 and 49, and 42.4% for girls aged 0-14 years, 212 yet the tendency of practicing FGM/C on infant girls is gradually increasing. One of the main reasons why women undergo FGM/C is the social stigma that comes after the refusal to be cut. The Gambian principle of “know the eye”, 213 which is an indicator of a subservient girl, a girl who has been taught to display nonverbal signs of deference to those in higher positions in the social hierarchy and is considered to behave in a fashion that is socially refined in comparison to uncut women is a motive why women voluntary opt to become circumcised. 214 A woman who underwent FGM/C is a woman that have been educated in the art of subordination to their future husband, husband’s brothers, and most importantly, to their mothers-in-law, which raises her chances to get married. The prejudicial behavior and the almost ostracism of the uncut women force girls to agree to be cut, which in turn keeps the practice alive in a vicious never- ending cycle. 215 Another main reason why FGM/C is performed is the strong link that can be perceived between the practice and Islam, with its 95.7% Muslim population216, Gambia has an influential religious lobby, which is mostly pro-FGM/C. Moreover, the current government is quite ambivalent in its official opinion regarding the issue, yet Fatoumata Tambajang, the Vice President of the Gambia, announced her anti-FGM/C views. On a more positive note, in 2014 during the First National Youth Summit on FGM/C in Gambia, Hama Jaiteh, a prominent and well-respected Islamic scholar told the gathered 100 young activists that FGM/C is not and never

211 Ibid. 212 Afghanistan - Multiple Indicator Cluster Survey 2010-2011 213 28 Too Many – FGM in Gambia: Country Profile, March 2015, pp. 51. 214 Fessler D., Shame in two cultures: implications for evolutionary approaches, Journal of Cognition and Culture, Koninklijke Brill Nv, Leiden, Vol. 4(2), June 2004, pp. 248. 215 Ahmadu F.S., Cutting the Anthill: The Symbolic Foundations of female and male circumcision rituals among the Mandinka of Brikama, The Gambia, University of London, 2005, pp.137-138. 216 Central Intelligence Agency – The World Factbook.

57 was endorsed or practiced by Islam. They were told that Islam was being used to «shield an evil intention [that is] harmful to a person’s development».217 After the event, the young activists were encouraged to spread the world to their families, friends, and communities. The participants were urged to stand up and encourage others not to be afraid to challenge such damaging practices as FGM/C. In January 2015, the summit was followed by a media campaign, launched and supported by the social initiative Girl Generation. 218 The aim of the campaign was to raise awareness of the harmful effects of FGM/C, as well as influence those with authority to help end the practice and promote a world free of it. The Gambia Committee on Traditional Practices affecting the health of Women and Children (GAMCOTRAP) is an NGO that for several years concentrates its effort in eradicating harmful practices, including FGM/C.219 Moreover, their final goal is to promote and ensure that the health and rights of Gambian women are respected and realized.220 To do so, they organize special meetings and forums, where the most pressing topics are debated and addressed. As an example, since 2007, GAMCOTRAP has been running ‘Dropping the Knife’ meetings, which are intended to target clusters of communities in hope to change their approaches and mindsets on harmful traditional practices (HTP), including, but not limited to FGM/C, child marriages, etc. The first “Dropping the Knife” meeting took place at the Independence Stadium in Bakau221, after which eighteen practitioners vowed in public to stop conducting FGM/C. Following this, in 2009, GAMCOTRAP organized a meeting in Basse222, during which sixty practitioners professed their rejection of the practice and the desire to influence its full eradication. Another step was made in 2011223 when in the Lower River Region 20 communities during a ceremony in Soma publicly condemned the practice of FGM/C. In 2012, 25 practitioners, along with their communities, declared that they would no longer perform

217 Topping A., Muslim youth summit told female genital mutilation is not part of Islam, The Guardian, 8 October 2014. 218 The Guardian, The Guardian Global Media Campaign to end FGM, May 2014-September 2015, pp.13. 219 The Gambia Committee on Traditional Practices Affecting the Health of Women and Children, Organisational Profile, pp.3 220 Ibid. 221 Women's Bantabaa, It’s All Tradition to Me, 12 April 2013. 222 Saidykhan A., GAMBIA: 2nd ropping Of The Knife By Female Circumcisers Held In Basse, Foroyaa Online, FGM Network, 14 December 2009. 223 The Point, GAMCOTRAP celebrates the 3rd Dropping of the Knife in the Gambia and the 1st ever in the Lower River Region, 6 July 2011.

FGM/C. 224 GAMCOTRAP continued to encourage positive change in 2013 with a ceremony held in Wassu225 in the northern Central River Region, where an additional thirty practitioners swore to never again perform FGM/C and to ‘drop the knife’ indefinitely.226 As stated on the website of the Global Fund for Women, reports show that approximately 564 communities in the Upper, Central and Lower River Regions took part in ‘Dropping the Knife ‘meetings. 227 With a steady record of accomplishment of hosting abandonment ceremonies throughout Gambia, GAMCOTRAP’s culturally sensitive programs are key campaigns for facilitating shifts towards positive change. The Islamic Republic of Mauritania, as we can guess from its official name, is an Islamic state, in which Islam is declared in its constitution as a state religion. By that, it means that all reforms, whether social or legal, must be supported by religious leaders and Islamic institutions. As in regards to the role of Islam in the daily lives of Mauritians, it plays an essential role, especially in the case of the Maliki Sunni Muslims. Yet it is not a one-way street, in return Islam in Mauritania is heavily influenced by local customs, traditions, ethnic groups and their beliefs, social hierarchies, etc. Many Mauritanians, among which several religious leaders, call the practice a religious obligation228. As was previously discussed in Chapter 2.4.c., FGM/C is an ancient practice, which is said to have pre-Islam origins. In the central religious text of Islam, i.e. the Quran, we cannot find any mentions of the practice. In some cases, we can find some references to the hadiths i.e. of various reports describing the words, actions, or habits of the Islamic prophet Muhammad229, yet their authenticity is disputed and doubted. Therefore, to summarize, there is no religious text or report that prescribes and/or mandates the performing of FGM/C.

224 Global Fund for Women, The Gambia Committee on Traditional Practices Affecting the Health of Women and Children (GAMCOTRAP), 2012. 225 Panapress, 30 traditional female circumcisers vow to "drop the knife" in Gambia, 16 April 2013. 226 28 Too Many, Country Profile: FGM in Gambia, March 2015, pp.7. 227 Menard-Freeman L., Celebrate Solutions: “Dropping the Knife” Celebrations as Alternatives to FGM in the Gambia, Women Deliver, 28 July 2014. 228 The United Nations Children's Fund, Female Genital Mutilation/Cutting: A Statistical Overview and Exploration of the Dynamics of Change, UNICEF, July 2013, pp. 69–71. 229 Brown J.A.C., Hadith: Muhammad's Legacy in the Medieval and Modern World (Foundations of Islam), Oneworld Publications, 2009, pp.3.

As estimated by the Ministry of Health, the prevalence of FGM/C varies between 20% and 25% among the female population. Yet it must be taken into account the difficulty of obtaining data as many ethnic groups could easily refuse to be subjected to a medical examination. While, as provided by the National Statistic Office, the rates of FGM/C among various ethnic groups fluctuates between 27% and 72%, in the Soninke and Halpulaar ethnic groups, as showed in the Government reports, 92% and 95.5% of women have undergone FGM/C.230 As to 2016, thirty-four fatwa were signed in Mauritania by Islamic scholars, which ban the practice of FGM/C. 231 The Nouakchott Fatwa (the capital city of Mauritania) signed the 12 January of 2011, provides that the practice of FGM/C is harmful to the well-being of a woman. 232 In regards to the legal framework, Ordinance no. 2005-015 (Chapter II Article 12 of the penal code233) recognize the legality of FGM/C in case when an adult woman (above the age of 18) provides her informed consent to undergo FGM/C. Where all these above-mentioned methods effective? As stated by Mohamed Lemine Seyfer, a Child Protection Specialist at UNICEF: “Together we are making a difference. From 2007 to 2011, the practice of excision among women aged 15 to 49 years declined by nearly 3%. In areas where we are raising awareness, support for the abandonment of FGM/C has risen from 38% to almost 53%.”234 Mali. The estimated prevalence of FGM/C in women and girls (15-49 years) in 2013 was 91.4%.235 Over 60% perceive the practice as a religious requirement, although it is not a requirement of either Islam or Christianity, as it was previously discussed in Chapter II. There are several ethnic groups, which practice FGM/C. Among them, the largest are Peulh (i.e. Fulbe or Fula), Senoufo (i.e. Minianka), Supyire, Dogon, and Bozo. There are many beliefs surrounding FGM/C, which varies from one ethnic group to the other. The most common are that

230 Inter-Parliamentary Union, Legislation and other national provisions: Madagascar, Malawi, Malaysia, Mali, Mauritania, Mauritius, Mexico, Morocco, Mozambique. 231 Wedoud M.A., Mauritanian Islamic leaders ban genital mutilation, The San Diego Union-Tribune, 18 January 2010. 232 Trevelyan B., Mauritania fatwa bans female genital mutilation, BBC News, 18 January 2010. 233 Mauritania: Ordonnance n°2005-015 portant protection pénale de l’enfant, 12 May 2005. 234 Azar M., In Mauritania, progress made in ending female genital mutilation/cutting, The United Nations Children's Fund (UNICEF), 11 October 2012. 235 28 Too Many – Country Profile: FGM in Mali, September 2014, pp.5.

60 this practice spiritually cleanses women and remove the evil spirit – wanzo (a belief mostly shared by the Bamanan people). 236 Others include “medical reasons”, that are quite fictitious and apocryphal e.g. the impossibility to give birth without FGM/C as the opening would be obstructed or that conceiving for uncut women is highly difficult.237 It is common for their culture to attribute the clitoris with masculinity and the male genitalia, that is why the removal of is considered to be a transition to adulthood and womanhood. One of many reasons is to control woman’s sexual pleasure, as it believed that an uncut woman is more prone to be unfaithful to her husband. In Bozo, FGM/C was considered a rite of passage to adulthood, where a group of girls (+200) was cut during the dry season by the river. 238 The Dogon ethnic group’s main belief is that the first people created by the God Creator were twins, and that is why all newborn embody male and female traits, which must be removed through circumcision. Moreover, in accordance with their beliefs, the first circumcised woman was Mother Nature, so by performing FGM/C on girls, Dogon people honor the deity. 239 As for the Supyire people, historically FGM/C was practiced on girls on their wedding day, but, as time went, the age was lowered. Crying from the pain was considered a dishonor, but as the age lowered, this attitude changed. A razor is utilized to perform the practice, after the procedure, a liquid from ebony tree leaves and cooled ash is applied for disinfection, and next karate butter is used for its anti-inflammatory properties. In Supyire culture, FGM/C was performed by a blacksmith’s wife, covered in special amulets that would protect her from the evil spirits.240 Officially, the practice is outlawed by Law no. 02-044 on Reproductive health, which was passed on 24th June 2002. However, the most successful interventions are made by using the traditional storytellers – Griots that inform the illiterate communities of the dangers of performing FGM/C. It is also exemplary the work of Sini Sanuman (Healthy Tomorrow)241, an

236 Ibid, pp. 34. 237 Jemphrey M., Knives to razors: Female circumcision among the Supyire of southern Mali, Notes on Anthropology, No. 2, 1997, pp.6. 238 Gosselin C., Feminism, Anthropology and the Politics of Excision in Mali: Global and Local Debates in a Postcolonial World. Anthropological Vol. 42, No. 1, 2000, pp. 43-60. 239 Machacek D.W., Wilcox M.M., Sexuality and the World’s Religions, ABC-CLIO, 2003, pp. 8. 240 28 Too Many – Country Profile: FGM in Mali, September 2014, pp.26. 241 http://www.stopexcision.net/

NGO that campaigns against all harmful practices. Since 2002, they worked closely with several Malian villages, educating them on the benefits of eradicating FGM/C as a practice. 242 Consequently, the authorities of the villages signed declarations, in which they are promising not to perform anymore FGM/C, and spread this message to the surrounding areas as well. As an example, the first village that signed this kind of Declaration was Moussala in 2005.243 Since then, no evidence of the performance of this practice among its population was to be seen. As stated by the report of 28 Too Many from 2015, FGM/C in Senegal is considered a social norm and part of cultural identity, practiced to guarantee social acceptance and marriage prospects. FGM/C is usually performed on young girls – 88.95% of Soninke people perform FGM/C at 1-year-old, 48.6% of Jola or Diola people at ages 2-4 years, and 29.1% at ages 5-9 years. 244 The practice was banned in 1999, yet despite the ban, it still takes place. To support the ban, a provision was added to the Senegal’s Penal Code in 1999 i.e. the Article 299 bis.245 Yet it was not the so-needed solution. For now, a lot of activism is centered on creating special FGM/C awareness workshops, where children are encouraged to share their experiences and are educated on their rights, as well as provided information on several topics, including FGM/C. 246 Senegal's anti-FGM/C campaign “My child won't be cut” bears its fruits by reshaping and opening young minds to a neoteric way of thinking. After these workshops, most of the alumni

242 Sperling V., Altered States: The Globalization of Accountability, Cambridge University Press, 2009, pp.293. 243 http://www.stopexcision.net/dec_of_moussala.htm The declaration reads: «We, the women and men of Moussala, in Kalabancoro, circle of Kati, Mali, have taken the decision to never again excise girls in our village. We have seen that there are many drawbacks and no advantages to this practice. Our girls don’t deserve this traumatizing and degrading experience and they have the right to their whole bodies. This decision has been taken for the health and well-being of our girls, the women of tomorrow. We encourage every Malian to take this same decision, individually and collectively, so that excision will disappear from Mali.» 244 28 Too Many, Country Profile: FGM in Senegal, June 2015, pp.17. 245 http://www.ipu.org/wmn-e/fgm-prov-p.htm The provisions states «Anyone who damages or attempts to damage the integrity of the female genital organ by total or partial removal or one or more of its elements, by infibulation, desensitization or any other means, shall be punishable by imprisonment ranging from six months to five years. The maximum punishment shall apply when these sexual mutilations have been practiced or facilitated by a member of the medical or paramedical profession. When they have caused death, the penalty of hard labor for life shall always be applied. The same penalties shall apply to any person who, through gifts, promises, influence, threat, intimidation, abuse of authority or power, caused such genital mutilations to happen or instructs others to practice them. » 246 Naib F., Interactive, Senegal: Breaking the circle of FGM, AL JAZEERA.

62 are determined that the practice will stop with them. «If my wife insists on doing it to my child I will leave her, » - says the five-grader Abdirahman. The ten-year old Mariam agrees with him, «One day I will have my own baby, and because I know how it feels to have it done and I have lost my baby sister to it, I will not do this to my own child. It will end here. »247 Perhaps, that is the right way.

5.5. Conclusions. FGM/C is an internationally recognized violation of human rights, set forth in numerous human rights instruments and falling under the definition of discrimination against women. Yet it is not as easy as it seems. While FGM/C is, undoubtedly, a human rights violation, it is simultaneously a cultural practice. Thus, the two contrasting theories that were previously discussed i.e. human rights universalism, which perceives the practice as inherently an international human rights violation, and cultural relativism that, on the other hand, sees FGM/C as a traditional practice that ought to be respected as an integral part of a community’s culture. These two approaches differ in regards to their consideration of FGM/C and not surprisingly, are mutually exclusive. As was discussed in the chapter, most states opt for legal provisions banning of FGM/C. Yet, as was analyzed, often this measure is not sufficient in order to eradicate the practice. As stated by the UNICEF child protection chief - Zihalirwa Nalwage - to eradicate FGM/C and help victims of the practice to recover there is only one-way and that is through education. Thus, the measures taken by several states in form of educational workshops seem to give better results than those of applying only punitive measures. By teaching young minds about the dangers of FGM/C, we can secure that the next generations will not perform the practice on their children, so the vicious cycle will stop. We cannot do without punitive measures, they could eventually lead to a drop in the statistics, yet at the same time, they are quite counterproductive. As this kind of measures have the potential to force the practice underground, further endangering women and girls. Undoubtedly, punitive measures are essential, yet they must be implemented in conjunction with other actions.

247 Naib F., Senegal's anti-FGM campaigner: 'My child won't be cut', AL JAZEERA, 10 March 2016.

Thus, we came to the second posed in the chapter question i.e. «What measures are more suitable, the monologue or dialogue ones? ». Understandably, changing deep-rooted cultural practices, customs and behaviors will be tough, especially when society and family pressure aids to the continuation of the FGM/C. In countries, where religion often defines and establishes social norms, the only way to put an end to customs that are preserved and passed down from generation to generation, is through education. By convincing the religious authorities and imams to educate their congregations and communities on the dangers of FGM/C could potentially lead to the abandonment of this damaging traditional practice. These countries and/or communities, where culture plays a more dominant role than international or domestic laws, ought to invest not only in measures that rely on a monologue system (i.e. systems that rely on the adherence to legal obligations e.g. the compliance with criminal norms, the respect towards international rights, etc.), but likewise on the dialogue system, which stems from the need of a communication. The close work with distanced communities that lack knowledge in regards to various legal provisions be it domestic or international, must be done in form of awareness workshops or traditional storytellers.

Chapter VI. Conclusion 6.1. Overview. Issues dealing with culture and human rights are a sensitive topic. In the early 80’s, the international awareness of FGM/C was drastically increased, since then the issue became the epicenter for heavy debates, dividing the international community into two polarized extremes: the one who fiercely defend the practice and the one accusing it. There is a tremendous gap between declaring that «FGM/C must be respected and accepted as part of the culture» i.e. cultural relativism and «human rights are universal and therefore every country must accept and follow a widely accepted set of rules» i.e. human rights universalism. Moreover, there is a thin line in stating that FGM/C is a cultural practice and therefore ought to be respected, and stating that violation of human rights is forgivable if it is part of a culture.

6.2. What are the main reasons why FGM/C is not eradicated, and what are the potential solutions? The practice is almost eradicated in some parts of the world, yet in many countries, the practice persists as a fragment of the cultural life, no matter what contradictive pieces of evidence against it were brought to the table. The recognition of FGM/C, a deeply rooted in culture and traditional beliefs practice, as a human rights violation was a big step in the right direction. Yet, to make a positive and permanent change in the lives of the girls, who were victims of the practice or who are at risk of undergoing FGM/C, much more is needed. The practice is affecting a number of women and girls physically, psychologically, and socially. Combating the practice by criminalizing the act is not enough to eradicate it since FGM/C is deeply rooted in the culture and beliefs of the communities. The statement could be confirmed by providing the examples of several African countries, where while the practice is legally banned, is still frequently practiced. There are several future solutions to reduce the levels of FGM/C. However, to excogitate a plan, firstly the reason why this practice is still performed must be understood. Religious belief. To remove the religious pretense that the practice hides behind, a collective fatwa made by influential scholars could greatly reduce the occurrence of FGM/C in Islamic countries e.g. Mauritania.

Illiteracy. Creating an easily accessible forum, where the dangers of performing this practice would be explained in a plain, simplified manner, where questions would be answered and counsels provided, could greatly improve the situation. Another option is to create specific positions in the most frequented locations e.g. schools, hospitals, etc., where girls and women could come in case if they need assistance or if they fear that something may happen. As it was discussed previously, the experience and results reached by the work of Sini Sanuman are exemplary. The close work with distanced villages to educate them on the dangers of FGM/C allowed the frequency of this practice to drop drastically. Furthermore, women and young girls must be supported by providing them the needed information about the danger of the practice so they could eventually help their societies that are still performing FGM/C and in this way help others. While it is naïve to state that education is the key-answer, it is still an empowering mechanism for women, through which they can be involved in matters directly affecting their lives, such as raising their awareness on health issues, teaching them about their human rights, helping them overcome economic struggles. Education, in general, provides more opportunities for women and allow them to reach out for new dimensions and perspectives. To summarize, through education the societies are developing, thus, new values replace the old ones and harmful practices may be eventually left behind.248 Lack of funding. To prevent FGM/C, more investments must be provided. Financing the research and investing resources in helping those at risk i.e. girls and women, could help prevent the practice; moreover, by investing in building the assets of girls, we could stop the vicious cycle of FGM/C by helping them become agents of change. Communication is vital, be it through education, information, awareness raising projects, or just between people sharing their thoughts and ideas. Financing the work of workshops and seminars could help this communication to be directed in the right direction. Moreover, financing the gathering of the needed information about various cultures and the investigations of practices that affect livelihoods of women could provide a way for the dialogue to be auspicious. Lack of accessible assistance. Creating a special position of a public advocate, similar to the role of a Children's Ombudsman may prove itself quite useful. Establishing an office in the

248 Hellsten S.K., Rationalizing circumcision: from tradition to fashion, from public health to individual freedom-critical notes on cultural persistence of the practice of genital mutilation, J Med Ethics, №30, March 2004, pp. 253.

66 countries where women and girls are at most risk, so they could address their issues and receive legal advice, general information or support. Moreover, if this office could work in conjunction with schools and hospitals since in some places women are restricted in the quotidian life and are not allowed to freely travel, it could mean more access. This kind of campaigns ought to be concentrated on the negative effects of the practice and the character of it as a human rights violation. Furthermore, the approach must consider the background of the country, its social, cultural, historical, geographical, economic and politic factors as often they allow us to understand why this particular practice is performed in a specific region. The main challenge is not the issue of signing and ratifying the international treaties and conventions, but in taking practical steps to put them and other human rights protocols into effect. There is a need for educational campaigns focused on the communities, where the rates of FGM/C are high. Those campaigns, preferably in a form of dialogue, and not a lecture, must consist of teachings on the harmful effects of the practice and the dangers of it for the health of girls and women. As was discussed in Chapter IV, several countries (e.g. Senegal, Mali, etc.) with the highest levels of FGM/C implemented in recent the system of FGM/C awareness workshops. The results are quite remarkable, thus, educating on the dangers of the practice from the innermost or the core of the communities seems to bear fruits. Eradication of this practice would require educating women and girls to increase literacy levels and creating awareness among women about the dangers of the practice. One other important step in its eradication is to bring men on board and winning their support in all efforts aimed at having the practice abolished. Thus, it is important for men to equally be informed and become knowledgeable of the dangers associated with the practice, as the eradication requires concerted efforts from everyone to protect young girls and women from the violations of their rights and abusive cultural practices that are putting women and girls at risk.

6.3. What is to be done when international human rights standards conflict with long-standing cultural practices as in the case of FGM/C? One of the main research questions posed by the thesis was whether FGM/C must be treated as a cultural practice or a human rights violation and what to do when human rights interfere with rights to culture and vice versa.

However, what must be done in the case when there is a dichotomy between the principles of Human Rights Universalism and of Cultural Relativism? The argument is that any claim to the exercise of any cultural right which is inconsistent with the existence of the fundamental human rights to which a particular state agreed to involve itself in, must not be entertained.249 In the ethical debate regarding harmful and detrimental practices, we shall give no weight to cultural value. Moreover, if the state will allow justifying the preservation and execution of such harmful practices by claiming that they are integral to preserve the cultural identity or tradition, it will potentially end in an increase of similar claims to cultural rights to preserve and strengthen harmful practices that are prejudicial to the health, dignity, freedom and security of innocent people, as symbolized in the case of FGM/C, where women are victims of genital mutilation. Undoubtedly, the unceasing adherence to the FGM/C practice is in clear violation of these provisions. If we analyze various international mechanisms, we can see how as articulated (for example) in article 11.2.c. of the African Children’s Charter, the States tries to accommodate positive cultural heritage, that includes values, morals, traditions, practices and various customs that are not detrimental to the life, health, and dignity of the, as in our case, African peoples. FGM/C as a cultural practice, that is inconsistent with domestic legislation and various international mechanism and norms, which specifically regulates human rights, must not be encouraged and should not be tolerated. In this respect, human rights are compatible and even beneficial to cultural diversity. As long as culture does not impinge on the rights of the individuals, it is ought to be respected and cherished. What we ought to focus on it is not the origins, but the purpose of human rights, as well as their capacity to protect the individual interests of the vulnerable groups. Culture must not be used as an excuse to commit human rights violations, additionally “maintaining traditional values” cannot serve as a justification for limiting or depriving certain groups of their rights. In sum, my discussion of universal human rights is within the context of human rights that the nation states already have ratified, presumably having taken into consideration their context- specific cultural rights. We may argue that the human right of culture has the same importance as any other right. Yet, this right does not authorize the conduction of practices that unmistakably cause physical,

249 ILO, Indigenous and tribal people’s rights in practice, A Guide to ILO Convention No.169, 2009, pp.82.

68 psychological, sexual or other harm to another. Videlicet, individuals must not be allowed to participate in culturally accepted violence e.g. FGM/C, trokosi, yubitsume, human sacrifices, etc., that infringe on human rights to dignity, freedom from discrimination, freedom from torture and degrading treatment, and so forth.250 To summarize, culture is not still, it constantly, relentlessly evolves as people develop new ideas and concepts, and alter the old ones. While certain cultures at the present time refuse to emphasize their attention on certain rights, it is necessary to understand that it does not mean that it will always be the case and the status quo could change. Cultural values do change from place to place, and over time, they are nor static nor incontrovertible. Changes in outlooks and opinions on FGM/C and other similar practices are progressively gaining a foothold in the minds of the young generations and breaking at the same time strong old views of older generations. In addition, it is entirely possible to deliberately change these damaging rituals. We can keep parts of rituals that connect us with our ancestors while refusing others. As was provided in Chapter III, FGM/C is indeed deeply rooted in culture and traditional beliefs, thus, if talking about its eradication, the historical, social, geographical, and economic factors ought to be taken into consideration. A deep knowledge of other communities’ culture is essential in order to progress and leave the practice behind. On the other hand, as evident from the international and domestic legal frameworks, the practice is not only seen as a violation of human rights, but also a criminal offence among many countries across the globe. The dichotomy between the communities where the cultural practices play an essential role in the lives of its members and the countries that adhere to the so-called “Western ideology” is quite evident in recent years. While states, where FGM/C is a recurring issue, try to condone the practice by enforcing legal penalties for its perpetration, the communities are still adhering to their traditions. One of the main fragment that was debated in Chapter III regarded the possible conflict between these two principles (i.e. Human Rights Universalism and Cultural Relativism), and what could be the outcome of this incompatibility. My final argument was that the claim of fulfilling cultural rights, which in turn breach the fundamental human rights to which the state agreed to adhere to, must not be accepted nor entertained. This can be concluded by analyzing

250 Reichert E., Human rights: an examination of universalism and Cultural Relativism, Journal of Comparative Social Welfare, Vol. 22 (1), 2006, pp. 23-36.

69 the damaging and senseless character of the practice, its background based on the inferiority of women and the gradual acceptance of the unacceptableness of FGM/C among various ethnic minorities, as well as NGOs and states. Thus, the practice of female genital mutilation has proven to be one of those cultural or traditional norms that need investigation in the light of human rights principles. In short, FGM/C is indeed a cultural practice, yet it does not exclude the fact that it’s a violation of human rights that severely damages girls and women. Therefore, I argue, FGM/C must not be justified under the pretense of a cultural practice and must be looked exclusively through the prism of human rights.

7.4. Final words. In conclusion, I would like to note that the research done for this thesis had a positive effect in regards to the knowledge that I gained on culturally sensitive practices like FGM/C, which will no doubt benefit my future career as a researcher. The research conducted for the thesis made me numinous to further the gained knowledge and dedicate my life to women, who are victims of this and other harmful practices. I hope that in the near future, FGM/C will be eradicated, yet for now, our duty is to spare no effort in researching the matter and finding solutions to make this foreseeable future closer with each passing day.

Bibliography

Books and Legal Journals

• Dos Santos J., Ethiopia oriental, e varia historia de cousas, notaveis do oriente (transl. Eastern Ethiopia, History about various things, a remarkable guide), 1609. • Leibniz G.W., Reflections on the Common Concept of Justice, Philosophical papers and letters, 1702. • Browne W.G., Travels in Africa, Egypt, and Syria, from the Year 1792 to 1798, 1799. • Rawlinson G., Rawlinson H., The History of Herodotus, New York: D. Appleton and Company, 1885. • Breasted J. H., Ancient Records of Egypt, The University of Chicago Press, 1906. • Farabee W.C., Indian Tribes of Eastern Peru, Peabody Museum of Archaeology and Ethnology, Harvard University, 1922. • Soranus, Gynaikeia libri IV, ed. Johannes Ilberg. Corpus Medicorum Graecorum Vol. 4, Leipzig: Teubner, 1927. • Letter from Marion S Stevenson, Tumutumu, Karatina, Kenya Colony, to Dr. Stevenson, Melrose, 1928. • Caelius Aurelianus, Gynaecia: Fragments of a Latin Version of Soranus, ed. Miriam F. Drabkin and Israel E. Drabkin, Bulletin of the History of Medicine, Suppl. 13, 1951. • Philo Supplement 1, Questions and Answers on Genesis, translation by Ralph Marcus, London, 1953. • Rathmann W.G., Female Circumcision: Indications and a New Technique General Practitioner, 1959. • Mackie G., Ending Footbinding and Infibulation: A Convention Account, American-Sociological-Review, 1966. • Walter B., Adams J.L., Theses on the Philosophy of History, New York: Schocken, 1969. • Herskovits M.J., Cultural Relativism: Perspectives in Cultural Pluralism, New York: Vintage Books, 1973. • Roe P.G., The Cosmic Zygote: Cosmology in the Amazon Basin, Rutgers University Press, 1982. • Lightfoot-Klein H., Pharaonic circumcision of females in the Sudan, Medicine and Law, 1983. • Donnelly J., Cultural Relativism and Universal Human Rights, Johns Hopkins University Press, 1984. • Brennan K., The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study, Law & Inequality Journal, 1988. • Dean-Jones L., The Politics of Pleasure: Female Sexual Appetite in the Hippocratic Corpus, Helios, 1992. • Smith R.C., Female Circumcision: Bringing Women’s Perspectives into the International Debate, University of Southern California, 1992. • Clark G., Women in Late Antiquity, Oxford University Press, 1993. • Watson C.W., Ellen R.F., Understanding Witchcraft and Sorcery in Southeast Asia, University of Hawaii Press, 1993. • Dean-Jones L., Women's Bodies in Classical Greek Science, Oxford University Press, 1994. • Sami A. Aldeeb Abu Sahlieh, To Mutilate in the Name of Jehovah or Allah: Legitimization of Male and Female Circumcision, Medicine and Law, 1994. • Ankumah, Evelyn A., African Commission on Human and Peoples' Rights, Kluwer, 1996. • Hernández-Truyol B.E., Women’s Rights as Human Rights—Rules, Realities and the Role of Culture: A Formula for Reform, Brooklyn Journal of International Law, 1996. • Higgins T.E., Anti-essentialism, Relativism and Human Rights, Fordham University School of Law, 1996.

• Savell K.L., Wrestling with the Contradictions: Human Rights and Traditional Practices Affecting Women, McGill Law Journal, 1996. • Cassar J., The Rights of Nations, Global Research Monograph Series, Center for Global Education, St. John's University, New York, 1997. • Goldberg P., Women, Health and Human Rights, Pace International Law Review, 1997. • Jemphrey M., Knives to razors: Female circumcision among the Supyire of southern Mali, Notes on Anthropology, 1997. • Kaplan A., De Senegambia a Cataluña: procesos de aculturación e integración social (transl. From Senegambia to Calatonia: acculturation and social integration processes), Barcelona: Fundación, La Caixa, 1998. • Nicholson F., Twomey P., Refugee Rights and Realities: Evolving international concepts and realities, Cambridge University Press, 1999. • Obermeyer C., Female Genital Surgeries: The Known, the Unknown, and the Unknowable, Medical Anthropology Quarterly, 1999. • Jacobson R., Information Design, MIT Press, 2000. • Gosselin C., Feminism, Anthropology and the Politics of Excision in Mali: Global and Local Debates in a Postcolonial World. Anthropological, 2000. • Rahman A., Toubia N., Female Genital Mutilation: A Practical Guide to Worldwide Laws & Policies, Center for Reproductive Law & Policy, RAINBO (Organization), 2000. • Schweder R., What about "Female Genital Mutilation"? And Why Understanding Culture Matters in the First Place, Daedalus, 2000. • Ignatieff, M., The attack on human rights, Foreign Affairs, 2001. • Li X., Tolerating the Intolerable: The Case of Female Genital Mutilation, Philosophy & Public Policy Quarterly, 2001. • Knight M., Curing Cut or Ritual Mutilation? Some Remarks on the Practice of Female and Male Circumcision in Greco- Roman Egypt, The University of Chicago Press on behalf of The History of Science Society, 2001. • Panchenko A.A., Антисексуальность в русской народной культуре: идеология и мифология скопчества (transl. Antisexuality in the Russian folk culture: idealogy and mythology of Skoptsy), Христовщина и скопчество: фольклор и традиционная культура русских мистических сект, Moscow Regional Humanitarian Institute, 2002. • Donnelly J., Universal Human Rights in Theory & Practice, New York: Cornell University Press, 2003. • Machacek D.W., Wilcox M.M., Sexuality and the World’s Religions, ABC-CLIO, 2003. • Fessler D., Shame in two cultures: implications for evolutionary approaches, Journal of Cognition and Culture, 2004. • Hellsten S.K., Rationalizing circumcision: from tradition to fashion, from public health to individual freedom-critical notes on cultural persistence of the practice of genital mutilation, J Med Ethics, 2004. • Momoh C., Female Genital Mutilation, Radcliffe Publishing, 2005. • Ahmadu F.S., Cutting the Anthill: The Symbolic Foundations of female and male circumcision rituals among the Mandinka of Brikama, The Gambia, University of London, 2005. • Watson M., Female circumcision from Africa to the Americas: Slavery to the present, The Social Sciences Journal, 2005. • Poldermans S., Combating Female Genital Mutilation in Europe, University of Vienna, 14 July 2006.

• Schubert K.A., Female Circumcision in the United States, University of Florida George A. Smathers Librarie, 2007. • Ballenger T., Female Genital Mutilation: Legal and Non-Legal Approaches to Eradication, Journal of Law & Social Challenges, Vol. 9, 2008. • Osiatynski W., The Universality of human rights, Individual and Human Rights Central European University Reader, 2008. • Karanja J., The Missionary Movement in Colonial Kenya: The foundation of Africa Inland Church, Universität Marburg, 2009.

• Sperling V., Altered States: The Globalization of Accountability, Cambridge University Press, 2009. • Brown J.A.C., Hadith: Muhammad's Legacy in the Medieval and Modern World (Foundations of Islam), Oneworld Publications, 2009. • Hasselbacher L., State Obligations Regarding Domestic Violence: The European Court of Human Rights, Due Diligence, And International Legal Minimums of Protection, Northwestern Journal of International Human Rights, 2010. • Mgbako, C., Penetrating the Silence in Sierra Leone: A Blueprint for the Eradication of Female Genital Mutilation, Harvard Human Rights Journal, 2010. • Lissauer T., Clayden G., Illustrated Textbook of Paediatrics, Fourth edition, Elsevier, 2011. • De Masellis M., Giordano E.A., Violenza in famiglia. Percorsi giurisprudenziali, European Institute for Gender Equality, Giuffrè, 2011. • Abraha Seare K., Dealing with Female Genital Mutilation/Cutting in Western Europe: Challenges of Achieving Zero Tolerance, Institute of Social Studies of The Hague, 2012. • Bosire O.T., The Bondo secret society: female circumcision and the Sierra Leonean state, University of Glasgow, 2012. • Dahlui M., The Practice of Female Circumcision in Malaysia, University of Malaya's Department of Social and Preventive Medicine, 2012. • Tiefenbrun S.W., Women’s international and comparative human rights, Carolina Academic Press, 2012. • Danial S., Cultural Relativism vs. Universalism: Female Genital Mutilation, Pragmatic Remedies, The Journal of Historical Studies, 2013. • Ghosh R., Making Sense of the Secular: Critical Perspectives from Europe to Asia., New York: Routledge, 2013. • Öz Y., Study on Homophobia, Transphobia and Discrimination on Grounds of Sexual Orientation and Gender Identity, The Danish Institute for Human Rights, 2013. • Flogaitis S., Zwart T., Fraser J., The European Court of Human Rights and its Discontents: Turning Criticism Into Strength, Edward Elgar Publishing, 2013. • Ehrenreich B., English D., For Her Own Good: Two Centuries of the Experts' Advice to Women, Social Science, 2013. • Erickson-Schroth L., Trans Bodies, Trans Selves: A Resource for the Transgender Community, Oxford University Press, 2014. • Middelburg A., Balta A., Female Genital Mutilation/Cutting as a Ground for Asylum in Europe, International Journal of Refugee Law, 2016. • Middelburg A., Empty Promises: Compliance with the Human Rights Framework in relation to FGM/C in Senegal, PrismaPrint, Tilburg University, 2016.

Law cases

• ECtHR - Izevbekhai v Ireland, Application no. 43408/08. • ECtHR - E. Collins and A. Akaziebie v. Sweden, Application no. 23944/05. • ECtHR - Izevbekhai v. Ireland, Application no. 43408/08. • ECtHR - Omeredo v. Austria, Application no. 8969/10. • ECtHR - Sow v. Belgium, Application no. 27081/13. • ECtHR - Bangura v. Belgium, Application no. 52872/10. • ECtHR - Ameh and others v. the UK, Application no. 4539/11. • ECtHR - Salah Sheekh v. the Netherlands, Application no. 1948/04.

• I.R.B. Toronto - Minister of Employment and Immigration v. Farah, Doc. 93-2198. • U.S. Department of Justice - In re Fauziya Kasinga, File A73 476 695, decision of 13 June 1996.

Recommendations, Resolutions, and Documents

• Criminal Code of Canada, 1892. • Universal Declaration of Human Rights, United Nations General Assembly, 1948. • International Covenant on Civil and Political Rights, United Nations General Assembly, 1966. • The African Charter on Human and Peoples’ rights (Banjul Charter), Organization of the African Unity, 1979. • Convention on the Elimination of All Forms of Discrimination Against Women, United Nations General Assembly, 1979. • Criminal Procedure Code of the Republic of Italy, 1988. • The Convention on the Rights of the Child, United Nations General Assembly, 1989. • The African Charter on the Rights and Welfare of the Child, Organization of the African Unity, 1990. • Declaration on the Elimination of Violence against Women, United Nations General Assembly, 1993. • Penal Law of Guinea, 1994. • Penal Code of the Netherlands, 1994. • Penal Code of Djibouti, 1995. • Penal Code of Senegal, 1999. • Law on reproductive health No. 2000/010/AN, National Assembly of Guinea, 2000. • Resolution 2001/2035(INI) (№ 93), European Parliament, 2001. • Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), Organization of the African Unity, 2003. • Resolution 2004/2020(INI) (№ 93), European Parliament, 2004. • Mauritania: Ordonnance No. 2005-015 portant protection pénale de l’enfant, 12 May 2005. • Declaration on the Rights of Indigenous People, United Nations General Assembly, 2007. • Resolution 2007/2145(INI) (№ 93) European Parliament, 2007. • Resolution 2008/2071(INI) (№ 93) European Parliament, 2008. • Convention on preventing and combating violence against women and domestic violence, Council of Europe, 2011. • Communication No. 18/2008, Committee on the Elimination of Discrimination against Women, 26 April 2012. • Resolution 2014/2511(RSP) (№ 93) European Parliament, 2014.

Reports

• United States Department of State, Ethiopia: Report on Female Genital Mutilation (FGM) or Female Genital Cutting (FGC), 1 June 2001. • The United Nations Children's Fund, Female Genital Mutilation/Cutting: A statistical exploration, UNICEF, 2005. • The United Nations Children's Fund, Changing a harmful social convention: FGM/C, UNICEF, 2005. • World Health Organization, WHO and UNAIDS announce recommendations from expert consultation on male circumcision for HIV prevention, WHO, 28 March 2007. • World Health Organization, Eliminating Female Genital Mutilation: An interagency statement, WHO, 2008.

• United Nations High Commissioner for Refugees, Guidance note on refugee claims related to Female Genital Mutilation, Protection Policy and Legal Advice Section Division of International Protection Services, UNHCR, 2009. • United Nations Division for the Advancement of Women, Ras-Work B., Legislation to address the issue of Female Genital Mutilation (FGM), UNDAW, 21 May 2009. • Orchid Project - FGM in Yemen as high as 69% in coastal regions, 11 June 2010. • The United Nations Children's Fund, Dijbouti: Status of Girls and Women in the Middle East and North Africa, UNICEF, 2011. • The United Nations Children's Fund, Female Genital Mutilation/Cutting: A Statistical Overview and Exploration of the Dynamics of Change, UNICEF, July 2013. • NO FGM Australia, New report on FGM in Australia – 3 girls per day are “at risk”, 25 March 2014. • 28 Too Many – Country Profile: FGM in Mali, September 2014. • The United Nations Children's Fund, Female Genital Mutilation/Cutting: A Global Concern, UNICEF, 2015. • 28 Too Many, Country Profile: FGM in Gambia, March 2015. • 28 Too Many, Country Profile: FGM in Senegal, June 2015. • Equality Now, Female Genital Mutilation (FGM) in the United States, July 2016. • United Nations Children’s Fund, Female Genital Mutilation/Cutting: A global concern, UNICEF, New York, 2016. • Amnesty International - Annual Report of 2016/2017, Yemen.

Articles and Press Releases

• Qureshi E., Ezzat H.R., Are Sharia Laws and Human Rights Compatible?, Quantara.de, 4 October 2004. • Watson M., Female circumcision from Africa to the Americas: Slavery to the present, The Social Sciences Journal, 2005. • USA Today, Man gets 10-year sentence for circumcision of 2-year-old daughter, 11 January 2006. • Dugger, C.W., Asylum from Mutilation, New York Times, 16 June 2006. • Al-Ariqi A., YEMEN: 24 percent of Yemeni women experience genital mutilation, FGM Network, 12 February 2007. • Pope to diplomats: Respect for rights, desires is only path to peace, Catholic News Service, 8 January 2007. • Scheier R., Rights Treaty in Uganda Snags on 'African Values', Women's News, 2 June 2008. • IRIN News, Government body moves to stem female genital mutilation, 1 July 2008. • Priest L., Parents charged in genital mutilation, Saturday’s Globe and Mail, 20 March 2009. • Trevelyan B., Mauritania fatwa bans female genital mutilation, BBC News, 18 January 2010. • Wedoud M.A., Mauritanian Islamic leaders ban genital mutilation, The San Diego Union-Tribune, 18 January 2010. • Fominyen G., Mauritanian Muslim imams initiate rare ban on female circumcision, Thomson Reuters Foundation, 21 January 2010. • Prieur L., Massalatchi A., W. African genital cutters face fatwa, jail, Thomson Reuters Foundation, 22 January 2010. • Sheikh Rabbani F., Sheikh Rasheed A., Mufti al-Kawthari., Can a woman cut her hair, Darul Fikr, 15 March 2010. • Graham L.M., Wiessner S., Indigenous Sovereignty, Culture, and International Human Rights Law, South Atlantic Quarterly, April 2011. • The Point, GAMCOTRAP celebrates the 3rd Dropping of the Knife in the Gambia and the 1st ever in the Lower River Region, 6 July 2011. • Piccolino M., Finger S., Discovering the African Freshwater “Torpedo”: Legendary Ethiopia, Religious Controversies, and a Catfish Capable of Reanimating Dead Fish, Journal of the history of the neurosciences, July 2011.

• Martinelli M., Olle-Goig J.E., Female genital mutilation in Djibouti, African Health Sciences, 2012. • Global Fund for Women, The Gambia Committee on Traditional Practices Affecting the Health of Women and Children (GAMCOTRAP), 2012. • Azar M., In Mauritania, progress made in ending female genital mutilation/cutting, The United Nations Children's Fund (UNICEF), 11 October 2012. • Haworth A., The day I saw 248 girls suffering genital mutilation, The Guardian, 18 November 2012. • Morris, B.J., Krieger, J.N., Does male circumcision affect sexual function, sensitivity, or satisfaction? A systematic review, The Journal of Sexual Medicine, 2013. • Jewish Press Stuff, Indonesian Muslims Rejects Ban on Female Circumcision, Jewish Press, 24 January 2013. • McConnell K., U.S. Taking Steps to Stop Female Genital Mutilation, IIP Digital. U.S. Department of State., 7 February 2013. • Bjälkander O., Grant D.S., Berggren, V., Bathija H., Almroth, L., Female Genital Mutilation in Sierra Leone: Forms, Reliability of Reported Status, and Accuracy of Related Demographic and Health Survey Questions, Obstetrics and Gynecology International, March Volume, 29 March 2013. • Panapress, 30 traditional female circumcisers vow to "drop the knife" in Gambia, 16 April 2013. • Kamal H., Cleric supports Battle against Female Genital Mutilation in Iraqi Kurdistan, Stop FGM Middle East, 10 February 2014. • La Rose T., In Guinea, renouncing the family tradition of female genital mutilation, UNICEF, 12 February 2014. • Keller L.M., The Impact of States Parties’ reservations to the Convention on the Elimination of All Forms of Discrimination against Women, Michigan State Law Review, 2014. • Weil-Curiel L., Les mutilations sexuelles féminines. Un autre crime contre l’humanité: Connaître, prévenir, agir, Supplément au Bulletin de l’Académie nationale de médecine (lit. translation: Female genital mutilation. Another crime against humanity: To know to prevent, to act. Additional Bulletin of the National Academy of Medicine), 10 June 2004. • Greenslade R., Women journalists abducted, stripped and marched through town, The Guardian, 10 February 2010. • Dorkenoo E., First UK Prosecution for FGM Is a Watershed Moment, Huffington Post, 24 March 2014. • Nyheter D., En av tre familjer vill fortsätta omskära, Dagens Nyheter, 24 June 2014. • Women Deliver, Celebrate Solutions: “Dropping the Knife” Celebrations as Alternatives to FGM in the Gambia, 28 July 2014. • Colangelo A.J., What Is Extraterritorial Jurisdiction, Symposium on Extraterritoriality, 6 September 2014. • Topping A., Muslim youth summit told female genital mutilation is not part of Islam, The Guardian, 8 October 2014. • Sahgal G., Who wrote the Universal Declaration of Human Rights?, Open Democracy, 10 December 2014. • Crowley J., Vice Chair Crowley, Jackson Lee Introduce New Legislation Calling for a National Strategy to Protect Girls from Female Genital Mutilation, 5 February 2015. • Pullella P., Pope condemns female mutilation, domestic violence against women, Thomson Reuters Foundation, 7 February 2015. • Kasztelan M., Female Circumcision Is Becoming More Popular in Malaysia, Vice, 20 February 2015. • Waweru N., What you need to know about the Maputo Protocol, The Star, 27 April 2015. • Thompson N., Female genital mutilation: Why Egyptian girls fear the summer, CNN, 25 June 2015. • Ainslie M.J., The 2009 Malaysian Female Circumcision Fatwa: State ownership of Islam and the current impasse, Women's Studies International Forum, 15 July 2015. • O’Carroll L., Sierra Leone's secret FGM societies spread silent fear and sleepless nights, The Guardian, 24 August 2015. • All Africa, Gambia: She She She - Jujuwoo No Child's Playground, We Cut Women Not Children, 29 October 2015.

• Gander K., FGM case reported in England every 109 minutes, Independent, 5 February 2016. • Naib F., Senegal's anti-FGM campaigner: 'My child won't be cut', AL JAZEERA, 10 March 2016. • Safi M., Three sentenced to 15 months in landmark female genital mutilation trial, The Guardian, 18 March 2016. • Acland O., Ebola Ended FGM in Sierra Leone, but Now It's Back, Vice News, 21 March 2016. • Bradner E., Trump aide: Immigration increases risk of female genital mutilation, CNN, 27 March 2016. • Guilbert K., Girls in Guinea cut at earlier age as female support for FGM rises, Thomson Reuters Foundation, 25 April 2016. • Favel B., Coates K.S., Understanding UNDRIP: Choosing action on priorities over sweeping claims about the United Nations Declaration on the Rights of Indigenous Peoples, Aboriginal Canada and the Natural Resource Economy Series, vol.10, May 2016. • Paulat L., Why Is Female Genital Mutilation on the Rise in Guinea?, Care2, 1 May 2016. • Press Association, More than 1,200 FGM cases recorded across England in three months, The Guardian, 9 June 2016. • Partridge E., First person to be imprisoned over female genital mutilation in Australia, The Sydney Morning Herald, 14 June 2016. • Reych Z., Malaysia: Female genital mutilation on the rise, ASEAN Today, 22 June 2016. • Hudson P., FGM: Lack of convictions 'a national scandal', BBC News, 15 September 2016. • Asian Correspondent Staff, Indonesia renews campaign to end female genital mutilation, Asian Correspondent, 27 September 2016. • Gillingham C., The Trokosi System of Child Slavery and the Role of Cultural Relativism, Burning Tree Magazine, 4 October 2016. • Batha E., Europe's refugee and migrant crisis in 2016 in numbers, World Economic Forum, 5 December 2016. • Middelburg A., Balta A., Female Genital Mutilation/Cutting as a Ground for Asylum in Europe, International Journal of Refugee Law, 22 December 2016. • Ferguson K., One Female Genital Mutilation case reported every hour in the UK, Independent, 6 February 2017. • Farand C., Two more charged in first US female genital mutilation case, Independent, 23 April 2017. • Cuevas M., Female genital mutilation procedure 'hurted a lot,' child says, CNN, 25 April 2017. • Collis H., Female genital mutilation cases rise in UK, but no prosecutions, Politico, 6 March 2017.

Websites

• https://www.reproductiverights.org/ • http://www.stopexcision.net/ • http://www.stopexcision.net/dec_of_moussala.htm