C. International Reaction to FGM: Imperfect Solutions
There is now a consensus in Western societies that FGM is torture and should be outlawed and punished when performed. Although many practicing countries have moved away from issuing fatwas in favor of FGM and some have even enacted laws against it, the practice continues in those countries and has now found its way to the shores of the Western world. Human rights activists from around the world have addressed FGM for many years and, to that end, the international community has enacted conventions which purport to protect women and children from violence and torture. These conventions, [p794] however, are often vague and nonbinding and have not eliminated FGM.
In 1948, The Universal Declaration of Human Rights (“UDHR”) was signed, and parts of it appear to be applicable to the issue of FGM. The UDHR states “[a]ll human beings are born free and equal in dignity and rights,” it provides for the “right to life, liberty and security of person,” and finally it prohibits the subjection of anyone to “cruel, inhuman or degrading treatment.” However, the UDHR does not specifically address women's issues or the problem with FGM, and there are no provisions for remedies and punishments for violating its provisions.
The United Nations Convention on the Rights of the Child (“CRC”), adopted in 1989, appears to address some of the issues attendant to FGM in stating “[n]o child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.” The CRC clearly asserts that children should be protected from all forms of cruelty and makes it clear that this is a human right; these provisions certainly could be made applicable to FGM. However, other sections seem to conflict with such protection. Articles 14 and 31 vest a great deal of authority in parents, religion, and culture. Therefore, those who argue that FGM is a religious directive that has been embedded into the culture for hundreds of years find support in these Articles. Moreover, under section 2 of Article 14, parents have both the right and responsibility to ensure the continuance of the culture by offering up their children at the altar of tradition.
[p795] The United Nations Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”), adopted by the United Nations General Assembly in 1979, may be the most helpful in eliminating FGM. Article 5 requires state parties to take measures to achieve “the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes . . . .” Though this does not address FGM, per se, it does allude to the fact that there are some cultural practices which are detrimental to women and inure to the benefit of men. Although CEDAW was adopted in 1979, as late as the early 1990s there was still a reluctance to characterize FGM as torture and it was, in fact, defended. This avoidance of the issue of FGM might have been an indication that the world was not quite ready to summarily condemn torture disguised as culture.
Another Article of CEDAW addresses the socio-economic issue at the root of why so many women have “willingly” subjected themselves to FGM. Article 14 emphasizes the particular problems facing women in rural areas and their role in the economic survival of their families, and calls for measures “to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development . . . .” One of the oft-stated reasons why women subject themselves to FGM is to make a good marriage. The subtext is that no man will want to marry a woman who is uncut and, hence, unclean. Marriage is still one of the most important socio-economic institutions in the world. Marriage is more than the joining of a man and a woman; in rural villages, it is the joining of families and the joining of land. Two families' survival becomes contingent on the marriage ability of one woman. Failure to undergo FGM can lead to the inability of [p796] a family to subsist. Therefore, sections 1 and 2 of Article 14, which provide for the equality of rural women in the economic scheme of their towns, empower women economically and may obviate the necessity to rely solely upon marriage for their survival. Without the economic need for marriage, the need for FGM would surely diminish and in time disappear.
In 1993, the United Nations declared, “violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.” The United Nations Declaration on the Elimination of Violence Against Women accomplished at least two things: (1) it defined violence in broad and sweeping terms; and (2) it called FGM by its new name --” “mutilation.” There was no attempt at political correction and no fear of stepping on cultural toes. Unfortunately, this Declaration is not binding and offers no remedies for violation of its provisions. The United Nations must rely upon its member nations to adhere to the Articles and enact laws to ensure that women have the rights provided in the Declaration.
Additionally, there are regional human rights instruments with provisions that can be seen to prohibit FGM. For example, the African member states of the Organization of African Unity ratified the African Charter on Rights and Welfare of the Child. This Charter calls for protection against harmful social and cultural practices, requiring state parties to take measures to eliminate “[t]hose customs and practices prejudicial to the health or life of the child,” and those that are “discriminatory to the child on the grounds of sex or other status.” [p797] The Charter speaks rather clearly on harmful cultural traditions that are gender-based, but it, like the others, stops short of identifying FGM or “female circumcision.” There are provisions for reporting, monitoring, and investigating the Articles therein, but there are no enforcement provisions or outline of the ramifications for violating the Charter.
Notwithstanding these conventions, the problem has continued. Many societies lack the capacity or, in some cases, the will to address the underlying issues of FGM. And the international community is reluctant to categorize FGM as violence and torture because it fears being seen as paternalistic for denigrating cultural rituals and traditions. This fear has caused a delay in recognizing the full impact of this practice on millions upon millions of females for centuries. Fortunately, that fear has diminished in part because the problem of FGM is now seen as a global problem. Taking one of the most important steps, the United Nations has said it will support the member states that grant refugee status to women who have fled their country of origin and fear that they will be subjected to FGM if they return.