On International Law Obligations to combat FGM/C, see short description at: http://www.hlrn.org/img/documents/Protection_FGM.pdf
A growing number of asylum claims are being made on grounds based in Female Genital Mutilation/Cutting (FGM/C), also commonly referred to as 'female circumcision'. Claims are made by parents on behalf of their daughters, by girls, and by adult women on their own behalf. This page aims to provide resources for lawyers representing such claimants.
A 2013 UNICEF report stated that more than 125 million girls and women worldwide have undergone genital cutting. FGM/C is prevalent throughout west, east, north and north-eastern regions of Africa, as well as in parts of Asia, the Middle East, and among migrant and refugee communities from these regions living in Europe, Australia, New Zealand, Canada and the US.
FGM/C comprises of procedures that surgically alter female genital organs for non-medical reasons. The procedure is generally carried out on young girls between infancy and 15 years of age, most commonly before puberty. In some countries, for example Sierra Leone, there are efforts to make it illegal until a girl is 18 and can consent. These laws have had perverse effects, encouraging circumcision before such laws can take effect.
In certain circumstances, adults, including married women who are pregnant, may be forced to undergo FGM/C. Traditionally an appointed woman will do the cutting. Although this woman will unlikely be medically trained to ‘western standards’, it is likely that she will be traditionally trained and seen as skilled in the procedure. It is unlikely that anaesthetics or antiseptics are used, as enduring pain is considered integral to the meaning of the ritual. Other procedures harmful to the female genitalia include pricking, piercing, cutting, pulling, scraping and burning the area. used include knives, scissors, scalpels, pieces of glass or razor blades. However, the trend towards medicalization is increasing and it has been estimated that healthcare providers perform more than 18% of all FGM/C. The practice of FGM/C is common across all social classes, all levels of education and among many religions, though no religion requires it.
The cutting is often part of a weeks-long ceremony, during which girls are educated as to their responsibilities in the community as a wife and mother, prove their courage in enduring the pain of cutting, and then take a vow not to speak of their experiences during this initiation. Many who practice FGM/C believe that it will make a girl chaste and faithful to her husband, maintain her health, is cleaner and, most importantly, will make her marriageable. This is an important reason for many parents to subject their daughters to FGM/C, they usually have their daughters’ best interest at heart but take away their right to choose in the process. Oftentimes, FGM/C is not a one-off experience, but is repeated later in life as women may be defibulated or reinfibulated at marriage or child birth.
The World Health Organization’s 2014 Fact Sheet provides a full outline of key facts, procedures, risk groups, cultural, religious and social causes, and international response.
The UNHCR's Guidance Note states that a ‘girl or woman seeking asylum because she has been compelled to undergo, or is likely to be subjected to FGM/C can qualify her for refugee status under the 1951 Convention relating to the Status of Refugees.’ The UNHCR Guidelines consider FGM/C to be a form of gender-based violence that inflicts severe mental and physical harm and amounts to persecution.
There are four main types of FGM/C:
Removing part or all of the clitoris and/or prepuce.
Removing part or all of the clitoris and the inner labia (lips that surround the vagina), with or without removal of the labia majora (larger outer lips).
3. Infibulation (pharaonic):
Narrowing of the vaginal opening by creating a seal, formed by cutting and repositioning the labia.
Other harmful procedures to the female genitals include pricking, piercing, cutting, pulling, scraping and burning the area.
The health risks involved with FGM/C may include great pain, haemorrhage, trauma to adjacent organs, infection, shock from blood loss, urinary retention, tetanus, cysts, abscesses, infertility , incontinence, psychological problems, pain during sex, difficulty during childbirth and even death. Especially infibulated women often have problems with obstructed labour which threatened the lives of both mother and child.
Female Genital Mutilation/Cutting has been criminalized internationally
FGM/C has been classed as a form of torture and inhuman or degrading treatment, and as a violation of the human rights as well as health and bodily integrity of women and girls under Article 5 of the 1948 Universal Declaration of Human Rights . FGM/C violates a person’s right to health, security and physical integrity, the right to be free from torture and cruel, inhumane or degrading treatment; and the right to life, if and when the procedure results in death.
In 2008, the UN General Assembly passed the Resolution on Ending Female Genital Mutilation , which calls on states still condoning FGM/C to eliminate the practice and in 2012 adopted the resolution Intensifying global efforts for the elimination of female genital mutilations . FGM/C has been outlawed in most but not all EU Member States. Article 38 of the 2011 Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) criminalises ‘inciting, coercing or procuring a girl [or woman] to undergo’ FGM/C. Furthermore, it establishes in Article 44 that parties to the Convention will prosecute those who commit this offence ‘where the offence is committed against one of their nationals or a person who has her or his habitual residence in their territory’ and that parties to the Convention will ensure that ‘jurisdiction is not subordinated to the condition that the acts are criminalised in the territory where they were committed.’ However, this Convention has neither been signed, nor ratified by all EU Member States.
The US outlawed FGM/C with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 , making it punishable by to up to five years in prison. In 2013, the law was amended by the Transport for Female Genital Mutilation Act , prohibiting anyone from knowingly transporting a girl out of the country for the purpose of undergoing FGM/C. The Act was designed to address the problem of 'vacation cutting', in which girls living in the United States are taken to their parents’ country of origin (typically during school breaks) to undergo the procedure. Under the new federal law, anyone found guilty of doing so may be sentenced to up to five years in prison.
International and regional human rights conventions aimed at the eradication of FGM/C, like the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) , the Convention on the Rights of the Child (CRC) , the International Covenant on Economic, Social and Cultural rights (ICESCR), the African Charter on Human and People’s Rights (Banjul Charter) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) have been widely ratified, both by FGM/C-practising and non-practising countries, but in case of the former, often remain merely symbolic.
State Protection and Internal Flight or Relocation Alternative
Even if a state prohibits FGM/C by law, this does not necessarily mean that State protection is available. The practice of FGM/C may continue in states which have outlawed it because it is upheld by those in power at local level, or because authorities are unwilling or unable to prevent, persecute and punish perpetrators. Similarly, internal flight and relocation are often no alternative to fleeing the country.
In paragraph 28, the UNHCR Guidance Note states:
In determining whether there is an internal flight or relocation alternative in cases involving FGM, it is necessary to determine whether such an alternative is both relevant and reasonable. Where the claimant is from a country with a universal (or near-universal) practice of FGM, internal flight will normally not be considered a relevant alternative. As with other forms of gender-based persecution, FGM is typically perpetrated by private actors. The lack of effective State protection in one part of the country is an indication that the State will not be able or willing to protect the girl or woman in any other part of the country.
And in paragraph 29:
Internal flight in FGM-related claims has mostly been considered by decision-makers in the case of countries where FGM is not a general practice, or is less widespread. If the woman or girl were to relocate, for example, from a rural to an urban area, the protection risks in the place of relocation would nevertheless have to be closely examined, including the potential reach of the agents of persecution.
Understanding the persistence of FGM/C
Lawyers representing people seeking asylum on FGM/C grounds will require the help of an expert who has specific knowledge of the practice in the client’s country of origin. In almost every society where it is practised, FGM/C is a rite of passage or initiation as girls enter womanhood and/or perceived as a religious duty; its persistence must be understood in terms of cultural, religious, psychological and sociological meanings, and societal pressures to conform and the consequences of failing to do so.
In Sierra Leone, for example, FGM/C is explicitly a sacrifice for the fertility both of the individual and the community. FGM/C, like male circumcision, is undergone to eliminate the ambiguity of gender identity; initiation is the occasion for the social/cultural construction of male and female genders. FGM/C is believed to ensure that women will desire conjugal relations over masturbation, and thus guarantee reproduction. It is often believed that an un-cut woman will not bear live or healthy children and is often ‘required’ if a girl is to be marriageable. In most countries where FGM/C is practiced, it is under the strict control of the women, who are often guilty of abducting or kidnapping the unwilling, even as adults, and after marriage and childbirth.
This list provides information on FGM/C by country. For some the countries in which FGM/C is practised we have listed experts who can assist the court in deciding claims based on FGM/C by providing expert witness statements on FGM/C for a specific country. We are trying to recruit more such experts and welcome suggestions. In addition, the country pages, both for FGM/C-practising and non-practising countries, list Anti-FGM/C NGOs (if known; we welcome suggestions for additions) and relevant (case) law. Furthermore, we are looking to list lawyers/law firms with experience in taking on asylum cases based on FGM/C. For suggestions, please contact us .
A Note of Caution
It is important for lawyers to be warned of a movement to counter efforts to eradicate FGM/C. Despite the UN’s ‘universal’ ban on FGM/C in 2012, there have been efforts not only to explain FGM/C, but to justify it, and indeed to promote it. These proponents of FGM/C claim that non-African campaigners against FGM/C fail to understand the cultural significance of circumcision in the communities in which it takes place.
From her web-based platform , Sierra Leonean academic, Dr Fuambai Ahmadu, an anthropologist, US citizen, and a gender adviser to the Vice President of Sierra Leone, is promoting FGM/C as authentic ‘African’ culture wrongly denigrated by ‘sexist, racist’ westerners who are funded by ‘western’ donors, all of whom are labelled as neo-colonialists and ‘racists’. As she puts it:
With utter disregard for differences in cultural, social, and historical contexts and experiences of womanhood, the bodies of circumcised African women are measured and devalued (by anti-FGM activists and increasingly by our own women) against a Euroamerican universal prototype.
It is not possible to draw any conclusions about the degree of influence such ideological attempts to misinterpret anti-FGM/C campaigning as neo-colonialist and racist have had, but when the UN’s banning of the practice of FGC was marked this year (2014), Dr Ahmadu said in an interview:
As descendants of Africans with our history of enslavement, imperialism and colonialism, we have to be very careful when we are shamed into forgetting or denigrating our culture, our past, and our traditions. By labeling circumcised African women as “mutilated” and “oppressed” and our cultures as “barbaric” – some feminists even say “sadomasochistic” – the financiers of anti-FGC campaigns who are largely white, educated, middle-class or wealthy women and men continue to define for us who we can and cannot be as African women, how we can or cannot feel, what we can or cannot do, and what we can or cannot appreciate about our histories, our bodies and our own sexual organs.
On the other hand there are women who are African by birth and upbringing who are fighting against FGM/C. For example Dr Comfort Momo, originally from Nigeria set up the African Well Women's Clinic, dedicated to caring for women affected by FGM/C at Guy's Hospital in London, in 1997. For more Anti-FGM/C NGOs see our FGM/C Resources by Country list.
FGM advocates frequently compare FGM/C to male circumcision as practised by Muslims and Jews, but also by those not belonging to either faith group practising it for its perceived medical, aesthetic and hygienic advantages. This comparison serves to argue that FGM/C is no different from male circumcision and that FGM/C practising countries in fact promote gender equity by modifying the genitals of both males and females. What these advocates fail to mention, however, is that the two procedures are nothing alike. Similarly, FGM/C is compared to female genital cosmetic surgery as practised primarily in the western world to argue that what is termed ‘mutilation’ in the ‘third world’ in called a ‘designer vagina’ in Europe and North America. This, however, does not address fact that those who undergo FGM/C often do so against their will.
‘United to End Female Genital Mutilation’ offers the Self Study Modules e-Learning Tool , a free online course that provides information and practical advice about FGM/C. Although primarily designed for health and asylum service staff working in Europe, the course will also be of use elsewhere around the world, including women’s organisations and shelters. The user can choose between two course ‘streams’: one focusing on asylum and the other focusing on health. Each module contains further reading and resources hyperlinked to the page. A short quiz is offered after each module to ensure that the user fully understands the material covered. Each of the six modules can stand independently and they may be completed in any order.
Together the two streams are comprised of six modules:
(1) Introduction to Female Genital Mutilation;
(2) FGM, Gender Identity, Roles and Power Dynamics in the Context of Migration;
(3) The Consequences of FGM on Women's Health;
(4) FGM as Ground for International Protection;
(5) The Health Context: Communication Techniques in Supporting Women Affected by FGM;
(6) The Asylum Context: Communication and Interviewing Techniques.
Short Training Films on FGM/C
The video tells the stories of refugee women who have undergone FGM/C and are engaged to end this practice. These women explain their experiences of flight, asylum and integration in the EU.
Too Much Pain (Part 1) The Voices of Refugee Women on FGM
Too Much Pain (Part 2) What is FGM?
Too Much Pain (Part 3) - FGM and Asylum Claims
Too Much Pain (Part 4) What is an age and gender sensitive approach to FGM asylum cases?
Too Much Pain (Part 5) The need for an age and gender sensitive reception system
Comic Relief Special BBC3: By Nawe Ashton
Mini Documentry by Journeyman Pictures
FGM/C Case Law and other Reference Documents
Please click here . Please note this is a work in progress.
Bibliography and Resources
BOSIRE, T. O. (2013) Politics of Female Genital Cutting (FGC), Human Rights and the Sierra Leone State: A Case of Sierra Leone Secret Society, Newcastle upon Tyne: Cambridge Scholars Publishing.
BOYLE, E. and CORL, A. (2010) Law and Culture in a Global Context: Interventions to Eradicate Female Genital Cutting. Annual Review of Law and Social Science , [Online] Annual Reviews 6. p. 195–215. Available from: www.annualreviews.org/doi/abs/10.1146/annurev-lawsocsci-102209-152822 [Accessed 1 October 2014].
Forced Migration Review. (2015) FGM and Asylum in Europe (mini-feature). Oxford: Refugee Studies Centre. Available from: www.fmreview.org/climatechange-disasters/FGM.pdf
GRUENBAUM, E. (2001) The Female Circumcision Controversy: An Anthropological Perspective, Philadelphia: University of Pennsylvania Press.
HERNLUND, Y. and SHELL-DUNCAN, B. (eds.) (2007). Transcultural Bodies: Female Genital Cutting in Global Context, New Brunswick: Rutgers University Press.
KOSO-THOMAS, O. (1987) The Circumcision of Women: A Strategy for Eradication, London: Zed Books.
MOSELEY, W. (ed.) (2004). T aking Sides: Clashing Views on Controversial African Issues. Guilford: McGraw-Hill/ Dushkin.
SHELL-DUNCAN, B. and HERNLUND, Y. (eds.) (2000) Female “Circumcision” in Africa: Culture, Controversy, and Change, Boulder: Rienner.
Available here. This interdisciplinary volume examines the issue of female genital cutting, or ‘circumcision’ and explores the role that scholars can and should play in approaching this issue.
SHWEDER, R.A. (2013) The Goose and the Gander: The Genital Wars. Global Discourse: An interdisciplinary Journal of Current Affairs and Applied Contemporary Thought [Online] Taylor and Francis Online 3 (2). p. 348-366. Available from: http://dx.doi.org/10.1080/23269995.2013.811923 [Accessed 31 October 2014].
UN High Commissioner for Refugees (UNHCR) (2009) Guidance Note on Refugee Claims relating to Female Genital Mutilation[Online] Available from: http://www.refworld.org/docid/4a0c28492.html [Accessed 9 October 2014].
UN High Commissioner for Refugees (UNHCR) (2013) Too Much Pain: Female Genital Mutilation & Asylum in the European Union - A Statistical Overview [Online] Available from: http://www.refworld.org/docid/512c72ec2.html [Accessed 23 October 2014].
United Nations Children’s Fund (UNICEF) (2013) Female Genital Mutilation/Cutting: A statistical overview and exploration of the dynamics of change [Online] Available from: http://www.unicef.org/esaro/FGM_Summary_11_July(1).pdf [Accessed 12 October 2014].
World Health Organisation (2014) Female Genital Mutilation Fact sheet N°241 [Online] Available from: http://www.who.int/mediacentre/factsheets/fs241/en/ [Accessed 20 October 2014].