WUNRN
Statement by Juan E. Méndez
Special Rapporteur on Torture and other cruel, inhuman or degrading
treatment or punishment
Female Genital Mutilation: Progress-Realities-Challenges
Side Event sponsored by
Women’s UN Report Network, Inter-African Committee, Worldwide Organization for
Women and NGO Committee on the Status of Women-Geneva
1 June 2011
I would like to thank the
organisers of this panel for inviting me to address you and apologise for being
unable to attend the event in person due to other commitments.
My predecessors have explored in length the extent to which the definition of torture itself can embrace a gender-sensitive approach demonstrating that certain types of so-called traditional practices, such as female genital mutilation (FGM), whether inflicted by people acting in their official capacity or in a private capacity, might amount to torture or inhuman and degrading treatment.
The purpose of my presentation is twofold: to reiterate that FGM in its form and cruelty
amounts to torture and cruel, inhuman or degrading treatment or punishment as
set forth in article 1 and 16 of the CAT; and to emphasise States’ obligations
to exercise due diligence to prevent, investigate and, in accordance
with national legislation, punish acts of violence against women, whether
perpetrated by the State or by private persons, and to provide redress, reparation and
rehabilitation to victims of torture and ill-treatment.
According to the WHO, an estimated 100 to 140 million girls and
women worldwide are currently living with the consequences of the FGM. It is mostly carried out on young girls at
some point between infancy and the age of 15 years. In
All forms of FGM violate a range of human rights of girls and women,
including the right to non-discrimination,[2][2] to protection from physical and
mental violence,[3][3] to the highest, attainable standard
of health, [4][4] and, in the most extreme cases, to the right to
life.[5][5] FGM also constitutes torture and cruel, inhuman
or degrading treatment [6][6] as affirmed by international
jurisprudence, including by many of the UN treaty monitoring bodies,[7][7] the Special Procedures of the Human
Rights Council, [8][8] and the European Court of Human
Rights (Emily Collins and Ashley
Akaziebie v.
Like my predecessors, I regard FGM as a practice involving the deliberate infliction of
severe pain and suffering, thus meeting the threshold of the definition of torture laid down in article
1 of the CAT, namely, severe pain and suffering, intent and purpose. As for
State involvement, I reiterate the previously held position, according to which Article
1 of CAT should be seen as reinforcing - and reinforced by - the Declaration on
the Elimination of Violence against Women, Article 4 (c) of which proclaims
that States should “exercise due diligence 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”. [9][9]
Many States in which FGM is practised, including those with immigrant
communities in which FGM occurs, have enacted laws that specifically prohibit
FGM, or apply general provisions of their criminal codes. By March 2007, some
30 countries including 18 African nations had anti-FGM legislation in place.
Since the early 1990s, an increasing number of jurisdictions have recognized
FGM as a form of persecution in their asylum decisions. In Farah v. Canada (1994),
the Immigration and Refugee Board of Canada described FGM as a “torturous
custom” and recognized it as a form of persecution. In the United Kingdom,
refugee status in relation to a well-founded fear of FGM was first upheld in Yake
(2000)[10][10]
and in the leading case of Fornah (FC) (Appellant) v. SSHD
(Respondent) (2006), [11][11] in which the House of Lords found that “it 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”. Similar approaches have
been adopted elsewhere in Europe, including in
Many UN Special Procedures have found that FGM may
constitute torture and that States have the responsibility to take all the
necessary measures to eradicate it. The Special Rapporteur on violence against
women stated that “[…] those cultural practices that involve
‘severe pain and suffering’ for the woman or the girl child, those that do not
respect the physical integrity of the female body, must receive maximum
international scrutiny and agitation. It is imperative that practices such as
female genital mutilation, […] or any other form of cultural practice that
brutalizes the female body receive international attention, and international
leverage should be used to ensure that these practices are curtailed and
eliminated as quickly as possible”.[12][12] The
Committee against Torture has expressed concern regarding the lack of domestic
legislation outlawing female genital mutilation in specific countries.[13][13] The Human Rights Committee has stated that
female genital mutilation is in breach of article 7 of the ICCPR and has also
raised concerns regarding its persistence. [14][14]
Although many States have adopted legislation
prohibiting FGM, the practice and social acceptance of FGM persist in many
countries, and effective mechanisms to enforce prohibition are absent. During
his visits to
A formal prohibition of FGM by law is thus not sufficient to conclude that State protection is available.[17][17] States are obliged to take effective and appropriate measures to eliminate FGM.[18][18] These obligations include the prohibition through legislation, backed by sanctions, of all forms of FGM, at every level of government, including medical facilities. [19][19] Not only must States ensure that perpetrators are duly prosecuted and punished,[20][20] they are also required to raise awareness and mobilize public opinion against FGM, in particular in communities where the practice remains widespread. Custom, tradition or religious considerations should not be invoked by States to circumvent their obligations with respect to the elimination of FGM.[21][21] Furthermore, States should ensure that victims of torture or other cruel and, inhuman or degrading treatment or punishment obtain redress, are awarded fair and adequate compensation and receive appropriate social, psychological, medical and other relevant specialized rehabilitation. To this end, States shall establish, maintain, facilitate or support rehabilitation centres or facilities where victims of torture can receive such treatment.
It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.[22][22] Moreover, comprehensive administrative and easily accessible programmes should be created offering redress and reparation services to victims of all types of gender-specific violence.
[1][1] Available at:
http://www.who.int/mediacentre/factsheets/fs241/en/.
[2][2] International Covenant on
Civil and Political Rights (ICCPR), Article 3; CEDAW, Articles 2, 5.
[3][3] CRC, Article 19; Declaration on the Elimination of Violence Against Women (DEVAW), Article 2 (a).
[4][4] International Covenant on Economic Social and
Cultural Rights, Article 12; CRC Article 24.
[5][5] ICCPR, Article 6; CRC, Article 6. See also: UNHCR Guidance Note on Refugee Claims Relating to Female Genital Mutilation, May 2009.
[6][6] ICCPR, Article 7; CRC, Article 37; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 3.
[7][7]Committee Against
Torture, General Comment No. 2: Implementation of Article 2 by States
Parties, 24 January 2008, CAT/C/GC/2; Human Rights Committee (HRC), General
Comment No. 28: Article 3 (The equality of rights between men and women),
29 March 2000, (CCPR/C/21/Rev.1/Add.10).
[8][8] Report
of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or
punishment, A/HRC/7/3, 15 January 2008, paras. 50–55.
[9][9] Report
of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or
punishment, A/HRC/7/3, 15 January 2008, para 31
[10][10] Immigration and
Appeals Tribunal, Appeal Number 00TH00493, 19 January 2000.
[11][11] UK House of Lords,
(UKHL 46), 18 October 2006.
[12][12] Cultural
practices in the family that are violent towards women, Report of the Special Rapporteur on violence against women. E/CN.4/2002/83,
para. 6, 31 January 2002.
[13][13] Concluding observations on Cameroon,
CAT/C/CR/31/6, para. 7.
[14][14] Human Rights Committee general comment No. 28 (2000) on article 3; Concluding observations on Uganda,
CCPR/CO/80/UGA, para. 10; Mali, CCPR/CO/77/MLI, para. 11; Sweden,
CCPR/CO/74/SWE, para. 8; Yemen, CCPR/CO/84/YEM,
para. 11.
[15][15] A/HRC/7/3, 15, January 2008, para. 53;Protocol
to the African Charter on Human and People’s Rights on the Rights of Women in
Africa, 11 July 2003; Article 5 (b).
General Comment No. 20, Article 7.
[16][16] Ibid.
[17][17] GZ (Cameroonian
citizen), 220.268/0-X1/33/00, Austrian Federal Refugee Council, Independent
Federal Asylum Senate, 21 March 2002.
[18][18] CEDAW General
Recommendation No. 14.
[19][19] Protocol to the
African Charter, Article 5 (b); Report of the Special Rapporteur on Violence
against women, its causes and consequences on the due diligence standard as a
tool for the elimination of violence against women, 20 January 2006,
(E/CN.4/2006/61) .
[20][20] DEVAW,
Article 4(c).
[21][21]UNHCR Guidance Note
on Refugee Claims Relating to Female Genital Mutilation, May 2009
[22][22] General Comment No. 20, 44th
session, Human Rights Committee.