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Female Genital Mutilation should be prosecuted as a crime against humanity, part 2

Gender Equality & GBV - Legal Aid & Empowerment

LAW’s Executive Director, Antonia Mulvey is a visiting fellow at the London School of Economics Centre for Women, Peace and Security (LSE WPS). In this role, she has been blogging about how  Female Genital Mutilation (FGM) should be recognised as a form of torture under international law. The post below can be found on the LSE WPS website HERE. This is the second of two posts for the LSE WPS BLOG, the first can be read here.

200 million girls and women alive today have undergone Female Genital Mutilation (FGM). In her second post considering FGM and international law, Antonia Mulvey uses five criteria to explore whether FGM can constitute a crime against humanity.

In my last post, I argued that all forms of FGM can constitute torture under international law.  Now, I go one step further and contend that FGM, in certain circumstances, can constitute an international crime, namely a crime against humanity. I also argue that victims will benefit from having FGM defined as torture and a crime against humanity.

Under the Rome Statute there are three broad categories of crimes: crimes against humanity; war crimes; genocide. The latter two categories are largely inapplicable to FGM. However, the first category, ‘crimes against humanity’, is relevant. For FGM to constitute the crime against humanity of torture, five key elements of the crime must be fulfilled:

Firstly, FGM must be an attack on the civilian population. The ‘Elements of Crimes’ document, produced by the International Criminal Court Assembly of State Parties, explains that this need not be a military attack but the attack must be one of the prescribed list of ‘attacks’ set out in Article 7 of the Rome Statute. This list includes torture (Article 7 (1)(f)), but also includes much broader categories of attack such as ‘sexual violence’ (Article 7 (1) (g) and ‘other inhumane acts’ (Article 7 (1)(k)). In the context of FGM, the target of the ‘attack’ is a civilian population – namely women and girls normally under the age of 15. I have already argued that FGM constitutes torture.

Secondly, FGM must be a state or organisational policy, or a state or organisational policy must encourage or promote FGM. Given the nominal rejection of the practice of FGM by many countries, as demonstrated often by the prohibition of FGM, this criterion could be viewed as an obstacle in arguing that FGM amounts to crime against humanity. However, while it is accepted that this element may be more challenging to fulfill, review of the context and thinking around this aspect of this crime indicates that it can be met in the context of FGM in numerous countries.

A state or organisational policy is demonstrated where the attack is planned, directed or organised, as opposed to random or spontaneous. Liability via omission is possible if that omission deliberately encourages the attack. This encouragement does not need to come from a state actor but can be instigated by a non-state actor, where that non-state actor is sufficiently ‘organisational.’ That is to say, that the non-state actor has the capability to perform acts which infringe on basic human values. The ICC has outlined other potential criteria which may indicate the existence of a sufficiently organisational structure, such as, control over geographical territory, a responsible command or established hierarchy, or the means to carry out a widespread or systematic against a civilian population.

It is clear that an organisation, such as a well-defined terrorist group, such as Al Shabaab or Boko Haram would easily fall within this description. Some religious groups, which are thought to form part of a state administration, would arguably also meet this organisational threshold because they are actively promoting FGM. For example, in Somalia, the Shura Council may constitute a state organisation.

A ‘policy’ can be demonstrated through repeated actions in the same sequence or a realised pattern of repeated conduct. It can be inferred by reviewing what effective action the state or organisation has taken.  For example, it could be argued that a state’s failure to take effective action, particularly given the prevalence of FGM in certain states, could amount to the state policy required under this element of crimes against humanity.  Evidently, where a non-state organisation meets the threshold outlined above, promotes or encourages FGM, this would also amount to policy.  Consequently, I suggest that this element can be met.

Thirdly, the attack must be widespread or systematic but it need not be both. A ‘widespread’ attack is one of a large-scale nature, targeting a number of persons. A ‘systematic’ attack is characterised by its organised and intentional nature.  In states, where the prevalence of FGM is very high, it is clear that the practice is widespread.

Fourthly, there must be a nexus between the attack (FGM) and the actions of the accused. That is to say, it must be shown that the actions of the accused are objectively part of the attack itself, or, in context, the actions of accused are clearly linked to the attack. In the case of individual perpetrators of FGM, it is clear that the act of cutting is objectively part of the wider attack. In respect of figures encouraging or promoting such an attack (either actively or by omission), it is apparent in some contexts where the practice of FGM is widespread, that any such action also inherently contributes to the ‘attack.’ Consequently, this criteria can also be met.

Fifthly, there must be knowledge of the attack by the perpetrator. In contexts where FGM is widespread, it is unlikely that any identified perpetrator would not have an awareness of the scale and scope of FGM.

With all five criteria met, I suggest that it can and should be argued that FGM amounts to the crime against humanity of torture. Similar arguments may also be put forward in arguing that the practice amounts to the crimes against humanity of sexual violence or of other inhumane acts.

Framing FGM as torture and/or as a crime against humanity of torture could provide clear benefits to victims and their communities. It can provide improved legal protection, giving victims and their communities new avenues for legal redress.

To date, there has been no legal case which has defined FGM as torture or as an international crime. A successful case or legal intervention can inspire victims and their community, demonstrating that justice can be obtained. Individuals or communities may receive much needed compensation from the state. A legal case can give a ‘face’ to the vast numbers of FGM victims so that states, and the public in general, better understand the personal impact of FGM on individual women and girls. Legal remedies, particularly prosecutions, can also act as a deterrent to committing the crime. Even an unsuccessful legal case or complaint may be successful in the ‘Court of Public Opinion’ and can result in public pressure to change legislation, policy or behaviour. Framing FGM as torture places positive obligations on states to ensure that FGM is prohibited, promptly and effectively investigated, prosecuted and the perpetrators punished. States would consequently be required to either pass legislation or effectively implement existing legislation, including through investigations or prosecutions. Further, framing FGM as torture would place obligations on the state to improve health services for the victims of FGM.

Ultimately defining FGM as torture and as an international crime provides a number of important tools towards the ultimate goal: the absolute protection of women and girls from FGM – a worthy cause, which we should all pursue.

Related: Female Genital Mutilation should be recognised as a form of torture

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