THE CULTURAL PRACTICE of Female Genital Mutilation ('FGM') is commonly understood as “procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons”. It is typically carried out on girls between the age of 0 and 14, with different subgroups practicing varied forms of this custom. For example, the Dawoodi Bohra community largely circumcise women at age 7, the Coptic Christians at age 9, Mandinka communities between age 4 and 14, the Emberá people soon after childbirth, and Saudi communities between infancy and age 7.
It is a fact that the practice has no health benefits, and, to the contrary, it often results in severe bleeding, menstrual issues, complications in childbirth, and other negative medical outcomes. It is unsurprising then that FGM is prohibited in most parts of the world (albeit with poor enforcement), and is recognised globally as a violation of human rights, especially freedom from torture or cruel, inhuman or degrading treatment.
Despite this, there are currently 230 million females alive that have undergone FGM and the practice continues, especially in Africa, Asia, the Middle East, and less prominently in, Latin America. Lamentably, FGM, also known as Khatna or Khafz, is prevalent and not subject to any prohibition in India.
Lamentably, FGM, also known as Khatna or Khafz, is prevalent and not subject to any prohibition in India.
Female genital mutilation
The precise origins of FGM remain unclear, with theories spanning from Ancient Egypt to Ancient Rome. However, its “multi-source origin” confirms the sociocultural nature of this practice that varies across regions and communities. It is noteworthy that FGM is a cultural and ethnic practice and not a religious one. FGM is often misattributed to Islam; however, the practice “pre-dates Islam” and there is no mention of this practice in any Islamic scriptures.
Importantly, the procedure is also practiced by other religious sub-groups such as the Coptic Christians in Egypt, Protestants and Catholics in Sudan, the indigenous Emberá people in Colombia and Panama, and traditionally by the Beta Israel of Ethiopia. Since each of these groups ascribe to different religions, with the indigenous Emberá practitioners of animal traditions, it is evident that these practices are socio-ethnic, geographic and cultural, and certainly not underpinned by Islam. Egypt is a good example that illustrates that FGM is regional and cultural, as it is practiced by groups of both Muslims and Christians in Egypt.
Justifications advanced in attempting to rationalise the practice of FGM most commonly include (a) religious, traditional or cultural freedom; (b) social norms as a rite of passage; (c) curbing sexuality; or (d) health or aesthetic appeal. Regardless, in reality, FGM has no health benefits. It often leads to excessive bleeding, problems urinating, severe pain, infections, depression, cysts, increased risk of new-born deaths, shock, PTSD, and, at times, death. The long-term physical and mental trauma of this irreversible, traumatic, and painful practice is unjustifiable and abhorrent. Various UN bodies have rejected any and all justifications raised in support of FGM by asserting that it “can neither be normalised nor used as a justification to invoke sociocultural and religious customs to the detriment of the wellbeing of women and girls”.
The heinousness of the practice has gained widespread disapprobation. An increasing number of countries have expressly criminalised FGM. However, the enforcement of these prohibitions in jurisdictions where FGM is most rampant (for example, Sub-Saharan Africa) remains weak. As a result, the number of cases annually continues to rise. Importantly, FGM is not only recognised as a criminal offence but it is also as a violation of various fundamental rights, including the rights to life, health and equality. Furthermore, and more important to the present discussion, with its permissibility rapidly extinguishing, FGM has also come to be recognised as a form of torture or cruel, inhuman or degrading treatment.
FGM meets the threshold of severe physical or mental pain or suffering to constitute torture.
FGM as torture
“Female genital mutilation is a grave form of violence against women and girls that amounts to torture. It violates the fundamental rights of its victims, including their physical integrity and rights not to be subjected to torture or other cruel treatment and to life, sexual and reproductive health”.
— Sierra Leone: End Impunity for FGM, 2022
Today, FGM is widely accepted by international law, legal commentaries and case law as a form of cruel, inhuman or degrading treatment that violates the general prohibition against torture.
The conclusion that FGM amounts to torture has been repeatedly affirmed by domestic courts around the world. In the 2008 decision of Secretary of State v K (FC), the House of Lords held that FGM “is a human rights issue, not only because of the unequal treatment of men and women, but also because the procedure will almost inevitably amount either to torture or to other cruel, inhuman or degrading treatment”. The Lords confirmed that “FGM has been condemned as cruel, discriminatory and degrading by a long series of international instruments, declarations, resolutions, pronouncements and recommendations” and unequivocally asserted that “no-one disputes that FGM amounts to persecution”. The courts made its repugnance apparent in stating, “it is important to emphasise that, in line with international opinion, the Home Secretary accepts that the practice of genital mutilation is abhorrent.”
International tribunals have similarly condemned the practice of FGM. Recently, in Forum Against Harmful Practices v Sierra Leone (2005), the Community Court of Justice of the Economic Communities of the West African States held: “Given the immediate severe physical pain or suffering associated with FGM, its long-term health complications including psychological problems, and the stigma associated with it, the Court considers that FGM constitutes an inhuman or degrading treatment.”
Importantly, despite the court’s finding that this particular incident did not qualify as “torture”, under the UN Convention the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ('UNCAT'), the judgment expressly affirmed that “FGM meets the threshold of severe physical or mental pain or suffering to constitute torture.” This finding is congruous with precedent across the commonwealth and international tribunals.
The Committee Against Torture (CmAT) – the body responsible for monitoring the UNCAT – in D.B. v Netherlands (2021) reiterated that “female genital mutilation causes permanent harm and severe psychological pain to the victims, which may last for the rest of their lives” and consequently concluded that the practice of subjecting a woman to female genital mutilation is contrary to the obligations enshrined in the Convention.”
Law on FGM
“Female genital mutilation… and honour-based violence are acknowledged as forms of gender-based violence that constitute ill-treatment and torture”.
— Report of Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 2016
The UN Office of the High Commissioner for Human Rights (OHCHR) has declared that “harmful traditional practices, including female genital mutilation, are illegal under international human rights law”. FGM violates a series of firmly established legal norms including the principles of equality and non-discrimination and the rights to life, health, and freedom from torture. These rights are codified in a series of binding international conventions/treaties/agreements including the International Covenant on Economic, Social, and Cultural Rights ('ICESCR') and the International Covenant on Civil and Political Rights ('ICCPR'), both of which obligate States to respect and protect these fundamental human rights. Importantly, formal guidance and commentaries to instruments protecting both the rights of the child and the rights of women have issued unequivocal directions for the immediate eradication of FGM. International instruments specifically prohibiting torture include the UNCAT, the ICCPR, the Convention on the Discrimination against Women ('CEDAW') and the Convention on the Rights of the Child ('CRC'). There are also various regional frameworks and other binding consensus documents that restate the absolute prohibition against torture including the European Convention on Human Rights and the Maputo Protocol of the African Union. Since international law is generally only binding upon States (and not individuals), once States are bound through international instruments, they are under a duty to nationally transpose these standards to effectively realise their obligations.
Crucially, India has ratified, and is consequently bound by, a majority of the abovementioned instruments. It is notable that there is no further step required to bind India to these obligations; upon ratifying (albeit with reservations), a State is automatically bound to that particular treaty or convention. India often raises a ‘dualist argument’ in support of its non-adherence with international law, which generally revolves around claims that its legislature must explicitly codify its international obligations into domestic law before they become binding. However, being a dualist State does not exempt India from being in express violation of its obligations under international law; it merely prevents the successful enforcement of those obligations via national courts. India has no domestic legislation or court precedent prohibiting FGM. Thereby, India is currently – and undoubtedly – in breach of its international legal obligations, for reasons that will be set out in the next part.
Interestingly, a wide variety of other countries have taken positive steps to prohibit FGM. Many African nations expressly criminalised FGM over two decades ago – Ghana in 1994, Burkina Faso in 1996, Kenya in 2001 – illustrating that the practice is considered archaic, barbaric and unjustifiable. The UK promulgated the Female Genital Mutilation Act in 2003, Australia promulgated similar legislation in 1996, and most US states list FGM as a criminal offence, with federal legislation echoing an absolute prohibition.
The prohibition against torture is an accepted jus cogens norm – a fundamental rule of international law that cannot be derogated from and that prohibits certain acts regardless of any treaty or law.
Torture as jus cogens
“The ban on torture and other ill treatment has been incorporated into an extensive network of international and regional human rights treaties. The prohibition of torture has since been elevated to jus cogens, thus recognizing that it is so fundamental that it supersedes all treaties and customary laws”.
— Joint Statement, UDHR70, 2018
Most importantly, because the extreme nature of torture blatantly obliterates basic principles of humanity, the prohibition against torture is an accepted jus cogens norm – a fundamental rule of international law that cannot be derogated from and that prohibits certain acts regardless of any treaty or law. Put another way, irrespective of whether there is any applicable domestic or international law prohibiting a practice that amounts to torture, nations are bound to prohibit these practices under the jus cogens norms of international law.
This is especially relevant as jus cogens trumps dualism; meaning the norm invalidates the convenient argument of dualism that India often relies on when it is in violation of its international obligations. The inviolable primacy of jus cogens norms, including torture, is best evidenced in a time of war or emergency, when most other laws can be suspended, including the sacrosanct right to life.
Yet even in these extreme circumstances, States may never derogate from jus cogens norms. Thereby, a finding that a practice constitutes torture is pertinent because any form of torture, as the subject of a jus cogens norm, dislodges any justifications advanced in attempt to rationalise the practice of FGM.
Torture trumps tradition. Torture illegitimates religious acts. Torture dislodges customs. Torture deposes dualism. Nations tolerating such practices, irrespective of their adherence to any national or international legislation, are in serious breach of international and universal law and must immediately outlaw any such practice.
This is Part 1 of a two-part series. Part 2 will explore India's international legal obligations regarding FGM and the absence of domestic legislation prohibiting this practice.