European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)

Having reviewed the various responses to female genital mutilation provided by the United Nations system, it is time to look at the regional sources of international law. The ECHR is of particular relevance because it is invoked in many instances of asylum claims based on female genital mutilation. Women or girls who fear female genital mutilation might not successfully satisfy the definition of an asylum seeker under the Refugee Convention. The case law illustrates that there have been cases where women who feared female genital mutilation did not qualify as refugees under the Refugee Convention but succeeded on human rights grounds alone and were granted subsidiary protection (called humanitarian protection in the UK). Then they were able to make an alternative claim under the ECHR, which enables the courts to prohibit removal where an asylum seeker’s return to their home country would otherwise result in a real risk of ill treatment contrary to Article 3 or a blatant breach of any other Convention right. Thus, under the ECHR provisions an additional ground of protection, mainly in relation to removals, may be granted.

The definition of an asylum seeker is ‘someone who has lodged an application for protection on the basis of the Refugee Convention or Article 3 of the ECHR,’ which combines two Convention rights. If the individual is found not to be a refugee under the 1951 Convention Relating to the Status of Refugees

and the 1967 Protocol (the Refugee Convention), but there is a well-founded fear of persecution or real risk of serious harm for a non-Refugee Convention reason, decisionmakers must consider granting Humanitarian Protection under Part 11 of the Immigration Rules.[1] Humanitarian protection results in the identical grant of leave and many of the same rights as conferred by refugee status. In order to qualify for humanitarian protection, a person has to face a real risk of serious harm if returned, serious harm being defined as death penalty or execution, torture or inhuman or degrading treatment or punishment and any other serious and individual threat to a civilian.

The first Council of Europe Resolution on female genital mutilation was adopted in 2001.

The Council of Europe expressed its concerns about female genital mutilation, stating that it should be regarded as inhumane and degrading treatment within the meaning of Article 3 of the Convention, even if performed under hygienic conditions by competent personnel. The Resolution emphasised the need for action by States ‘to adopt more flexible measures for granting the right of asylum to mothers and their children who fear being subjected to such practices.’ However, in order to avoid patchy practices and dramatic divergences in the acceptance rate of asylum cases, another Resolution was passed in 2009, which stated that there were significant differences between countries with respect to the number of cases in which refugee status is granted and the number of cases in which applicants are afforded complementary protection including, inter alia, protection under the European Convention on Human Rights, subsidiary protection and other humanitarian protections.

Also, in some Council of Europe member states ‘up to 50%, or in some cases even more, of first instance decisions on asylum are overturned on appeal, indicating that first instance decisions are unreliable and of poor quality.’ Thus, in order to improve the quality and consistency of asylum decisions, further advice was given by this Resolution, stating that:

All asylum decisions should be guided by fundamental principles and objectives of human rights and the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol, rather than by political considerations. Any asylum system needs to deal fairly, humanely and efficiently both with those in need of international protection and with those whose application in such matters has been rejected.[2]

In 2010, another Resolution was passed to address the gender-related claims for asylum, which expressly identified, inter alia, honour crimes, forced marriage and female genital mutilation. This Resolution further reinforced women and girls’ asylum seeking rights by providing that Member States should:

ensure that gender based violence is taken into account under the five different grounds of persecution (race, religion, nationality, membership of a particular social group or political opinion) in any asylum determination process and that ‘gender’ is specifically included in the notion of a ‘particular social group’ under the refiigee definition set out in the 1951 UN Convention relating to the Status of Refugees (Refugee Convention), preferably by law, or at least in practice.

Furthermore, engaging the state’s obligations to non-refoulement in relation to Article 3 of the ECHR is also relevant when considering where the risk of female genital mutilation is identified. Since female genital mutilation falls within the broader context of gender based violence with honour issues as its root cause, the European Court of Human Rights’ decision in the case of Opuz v Turkey is relevant. In Opuz, the Court recognised gender-based violence as a form of discrimination, engaging Article 14 of the Convention.

It is difficult to make a distinction between torture and inhumane and degrading treatment, as these concepts overlap rather than being distinct from one another. Since female genital mutilation is ‘most commonly performed without real consent and causes irreversible bodily changes,’ it violates women’s bodily integrity and constitutes inhumane and degrading treatment. It also qualifies

Female body mutilation 125 as torture, because it inflicts ‘severe pain or suffering’ on a person powerless to defend herself.[3] The European Court of Human Rights did not call female genital mutilation ‘torture’ explicitly, but in the case of Collins and Akaziebie, it was stated that it ‘is not in dispute that subjecting a woman to female genital mutilation amounts to ill treatment contrary to Article 3 of the Convention.’ This view has been adopted elsewhere in Europe, including in Austria, Germany and Belgium. The case law thus illustrates that female genital mutilation can constitute ill treatment according to Article 3 of the Convention. Therefore, even if an applicant fails to qualify for refugee status on Refugee Convention grounds, she may qualify for protection on human rights grounds as long as the cases satisfy the credibility and admissibility requirements.

In 2011, the Council of Europe decided to move away from policy-based, non-binding documents (mainly the Resolutions) in order to agree on a legally binding instrument. The Convention on Preventing and Combating Violence against Women and Domestic Violence 2011 (also known as the Istanbul Convention) entered into force in August 2014. The Convention also makes reference to crimes of honour under Article 42 and contains specific provision on female genital mutilation. Article 38 states that:

Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised:

  • a) excising, infibulating or performing any other mutilation to the whole or any part of a woman’s labia majora, labia minora or clitoris;
  • b) coercing or procuring a woman to undergo any of the acts listed in point (a);
  • c) inciting, coercing or procuring a girl to undergo any of the acts listed in point (a).

When genital mutilation is inflicted forcibly and without any medical reasons then, as well as infringing the express provisions of the Istanbul Treaty stated above, it also amounts to torture or cruel, inhumane or degrading treatment.[4]

A review of the responses to female genital mutilation by regional actors must include those African countries that have the highest occurrence of this practice. Female genital mutilation is prohibited by Article 18 of the African Charter on Human and Peoples’ Rights 1981. Article 18 of the Charter requires States to eliminate all discrimination against women. This is also echoed by Article 21 of the African Charter on the Rights and Welfare of the Child 199O.Article 21 obliges

State Parties to 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 those customs and practices prejudicial to the health or life of the child; and also those customs and practices discriminator}' to the child on the grounds of sex or other status.

The 2003 Protocol to the African Charter on the Rights of Women in Africa orders that State Parties should prohibit and condemn all harmful practices which infringe the human rights of women and specifically requires States to prohibit ‘all forms of female genital mutilation ... and all other practices in order to eradicate them.’

Fifty countries signed and forty-one ratified the African Charter on the Rights and Welfare of the Child 1990. Despite the high number of signatories to the Charter, it is argued that the African Charter is still only minimally known and utilised in the region. Therefore, the reality of African children’s circumstances is seldom reflected in the practice of the law, in research and in the systems that are supposed to protect them.

Countries where female genital mutilation is widely practiced, such as Ethiopia, ratified the Charter on 15 June 1998. Ethiopia’s periodic report,

Female body mutilation 127 which combines the Initial, 1st, 2nd, 3rd and 4th Periodic Reports, and covers the period from 1998 to 2007, was submitted to the Secretariat of the African Commission on Human and Peoples’ Rights (the Secretariat) on 15 November 2008. Although the periodic review took place almost 17 years after the ratification of the Charter, concerns were raised about the lack of concrete legislation at the national level on female genital mutilation.[5]

A positive step was taken by Nigeria. At the time of the submission of its 4th Periodic Review, it stated that there was a draft Bill prohibiting female genital mutilation which was being considered by the Senate. The law was finally passed by the Senate on 5 May 2015.1 However, for countries with a high occurrence of female genital mutilation, including Egypt (91%), Guinea (97%) and Eritrea (89%), there was no report available to view. Egypt’s first Periodic Report, submitted 1 January 1991, did not mention female genital mutilation. The second Periodic Review was submitted 1 May 2010 in Arabic, but the text is not yet available on the website. Another high occurrence country', Somalia (98%), signed the Charter on 1 June 1991 but has not ratified it; another, Sudan (88%), has not signed/ratified it.

However, according to Mbise, signing or even ratifying the Charter does not really' mean much in reality; she submits that most African countries which have ratified and formulated major policies have rarely' managed to translate them into practice. Thus, despite ratifying the African Charter on the Rights and Welfare of the Child 1990 and other international human rights instruments, many African countries still report extensive violations of children’s rights. In most countries, harmful practices against children persist, such as female genital mutilation and child trafficking. One of the main reasons given for such tailures is the fact that social welfare departments in Africa receive the lowest budget allocations from their governments, and social workers practice in some of the most disadvantaged environments; as a result, they fail to discharge their duties effectively toward

children and families.[6] Furthermore, it has been acknowledged that ‘commitment to protection of children often involves challenging deep rooted cultural perception about children relating to ... [inter alia] traditional practices which can be harmful to children.’

As Sloth-Nielsen states, there is no quick fix to this problem, and changing behaviour involves complex engagements with attitudes, values and beliefs. However, as was acknowledged by the African Commission in its latest Ordinary Session in 2018,

despite a few positive developments, including the recognition and increased protection of the rights of young people, the prohibition of female genital mutilation, the campaign against early and forced child marriages ... in Africa, there are still many challenges to be faced.

  • [1] Humanitarian Protection (Published 15 May 2013, last updated 7 March 2017). 2 Considering Human Rights Claims (Published 27 October 2009). 3 Council of Europe Resolution 1247 (2001) ‘Female Genital Mutilation. Before This Resolution It Existed Only as an Awareness Campaign’; A Middelburg and A Balta, ‘Female Genital Mutilation/Cutting as a Ground for Asylum in Europe’ (2016) 28(3) International Journal of Refugee Law 416-452. 4 Council of Europe, Resolution 1247: Female Genital Mutilation (2001) point 7. 5 Ibid, point 11.3. 6 Council of Europe Resolution 1695: Improving the Quality and Consistency of Asylum Decisions in the Council of Europe Member States (2009) point 5. 7 Ibid. 8 Ibid, point 6.
  • [2] Ibid, point 7. 2 Council of Europe Resolution 1765: Gender-Related Claims for Asylum (2010) point 3. 3 Ibid, point 8.1. 4 Principle of non-refoulement under the Convention relating to the Status of Refugees 1951. 5 Collins and Akaziebie v Sweden Application no 23944/05 DA (ECtHR, 2007). 6 Opuz i’ Turkey Application no 33401/02 (ECtHR, 9 lune 2009) at paras 18-202. 7 R Sifris, Reproductive Freedom, Torture and International Human Rights (Routledge 2014)232. 8 Y Hernlund and B Shell-Duncan, ‘Transcultural Positions: Negotiating Rights and Culture’ in Y Hernlund and B Shell-Duncan (eds) Transcultural Radies: Female Genital Cutting in Global Context (Rutgers University' Press 2007) 16.
  • [3] R Sifris, Reproductive Freedom, Torture and International Human Rights (Routledge 2014) 240. 2 Collinsand Akaziebie v Sweden Application no 23944/05 (ECtHR, 8 March 2007) 12. 3 G Z (Cameroonian citizen), 220.268/0-X1/33/00, Austrian Federal Refugee Council, Independent Federal Asylum Senate (21 March 2002). 4 P Tiedemann, ‘Protection against Persecution Because of “Membership of a Particular Social Group” in German Law’ in The Changing Nature of Persecution (International Association of Refugee Law Judges, 4th Conference, Berne, Switzerland, October 2000) 340-350 accessed 20/10/2017. 5 Jurisprudence no 979-1239, Conseil du Contentieux des Etrangers, Belgium (25 July 2007). 6 CNDA, 29 July 2011, Miss O, no 10020534 and CNDA, SR, 12 March 2009, Kouyate, no 638891. 7 Enitan Pamela Izevbekhai and Others v Ireland (ECtHR) Application no 43408/08 (17 May 2011) where the case of a mother with two daughters claimed they would be subject to female genital mutilation if returned to Nigeria and that forced removal from the State would therefore be in breach of Article 3 of the ECHR lacked evidential credibility.
  • [4] These activities are prohibited under the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 Article 3 as well as the International Convention Against Torture 1984 Article 2(1 ). 2 Protocol to the African Charter on Human People’s Rights on the Rights of Women in Africa (2003), Article 5(b). 3 A T Mbise, ‘The Diffusion of the United Nations Convention on the Rights of the Child (UNCRC) More than the African Charter on the Rights and Welfare of the Child (ACRWC) in Africa: The Influence of Coercion and Emulation* (2017) 60(5) International Social Work 1238. 4 According to the UNFPA, in Ethiopia 74% women and girls aged 15-49 have undergone some type of genital mutilation accessed 20/10/2017. 5 African Commission on Human and Peoples* Rights, Concluding Observations and Recommendations on the Initial, 1st, 2nd, 3rd and 4th Periodic Report of the Federal Democratic Republic of Ethiopia, Forty-Seventh Ordinary Session 12-26 May 2010, Banjul, The Gambia.
  • [5] African Commission on Human and Peoples’ Rights, Forty-Seventh Ordinary Session (12-26 May 2010, Banjul, The Gambia) point 40. 2 According to the UN, in Nigeria 26-50% women and girls aged 15-49 have undergone some type of genital mutilation accessed 20/10/2017. 3 Nigeria’s 4th Periodic Country Report: 2008-2010 on the Implementation of the African Charter on Human and Peoples’ Rights in Nigeria 7-8. 4 A Topping, ‘Nigeria’s Female Genital Mutilation Ban Is Important Precedent, Say Campaigners’ The Guardian (29 May 2015). 5 The First Report of Egypt Presented to the African Committee of Human Rights Held at Nigeria During 28 February 1991 to 13 March 1991. 6 United Nations, Female Genital Mutilation accessed 20/10/2017. 7 A T Mbise, ‘The Diffusion of the United Nations Convention on the Rights of the Child (UNCRC) More than the African Charter on the Rights and Welfare of the Child (ACRWC) in Africa: The Influence of Coercion and Emulation’ (2017) 60(5) International Social Work 1237 and 1239.
  • [6] Ibid. 2 J Sloth-Nielsen, ‘Regional Frameworks for Safeguarding Children: The Role of the African Committee of Experts on the Rights and Welfare of the Child’ (2014) 3 Social Sciences 949. 3 Ibid. 958-959; L Kartar-Hyett, ‘Simply Unwilling? Is Patriarchy Preventing the Prosecution of Crimes against Women in African States: A Kenyan and Ugandan Perspective* (2016) 24(2) African Journal of International and Comparative Law 175. 4 African Commission on Human and Peoples’ Rights Final Communiqué of the 62nd Ordinary Session of the African Commission on Human and Peoples’ Rights. 25 April to 9 May 2018 point 5. 5 J A Tchoukou, ‘Introducing the Practice of Breast Ironing as a Human Rights Issue in Cameroon’ (2014) 3(3) Civil and Legal Sciences 4.
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