Author: Hanna Nyssen
III Year | Tilburg University, Tilburg

Introduction:

Female Genital Mutilation (FGM) is a practice entrenched in various cultural, religious, and social traditions, particularly within some indigenous communities. It has sparked significant international concern throughout the years. This practice, involving the partial or total removal of external female genitalia for non-medical reasons, often aims to control women’s sexuality, ensure virginity before marriage, or enhance fertility. However, it conflicts with established International Human Rights norms, especially Children’s Rights. This article examines the legal landscape surrounding children’s rights in indigenous communities, focusing on the intersection of FGM as a cultural practice and the international norms that oppose it.

Cultural Context of FGM in Indigenous Communities:

In many indigenous cultures, FGM is a rite of passage, deeply embedded in traditions that predate colonial influence. Up to this day, over 80% of girls and women in Somalia undergo partial or full FGM^[1], embedding its cultural significance. It is often seen as a means to preserve cultural identity. It is performed with the intention of preparing girls for adulthood and marriage. Community elders and women typically uphold these practices. They generally see FGM as an integral part of their cultural heritage.

Understanding FGM from a cultural perspective requires an appreciation of its significance to those who practice it. It is not merely a physical procedure but a symbolic act that reinforces community values and social structures. The challenge arises when these cultural practices clash with modern human rights standards, particularly those pertaining to children’s rights and bodily integrity.

International Human Rights Framework:

International Ruman Rights law categorically opposes FGM, classifying it as a violation of children’s rights^[2]. The Universal Declaration of Human Rights (UDHR) proclaims the right to life, liberty, and security of person (Article 3)^[3]. FGM is seen as infringing on these rights by causing severe physical and psychological harm, not only short-, but also long-term. With the Convention on the Rights of the Child (CRC) specifically mandating the protection of children from all forms of physical or mental violence, injury, or abuse^[4], it obligates states to take appropriate legislative, administrative, social, and educational measures to protect children from practices like FGM.

Further, Conventions such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) call for the elimination of traditional practices that are prejudicial to the health of women and girls^[5]. It encourages states to modify social and cultural patterns that perpetuate gender discrimination. The African Charter on the Rights and Welfare of the Child addresses harmful social and cultural practices that affect the welfare, dignity, normal growth, and development of the child^[6].

Balancing Cultural Rights and Children’s Rights:

The challenge of reconciling cultural rights with Children’s Rights is a contentious issue in the legal discourse surrounding FGM. Cultural rights are protected under International Law. The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes the right of all people to take part in cultural life^[7]. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) affirms the rights of Indigenous peoples to maintain and strengthen their distinct cultural practices^[8].

However, these cultural rights are not absolute and must be balanced against other Human Rights, particularly those of children. The CRC explicitly acknowledges the importance of respecting cultural diversity. However, it asserts that practices harmful to children’s health and development must be eliminated.

Legal Responses to FGM in Indigenous Communities:

Efforts to address FGM within Indigenous communities involve a complex interplay of legislation, community engagement, and education, with a bottom-up approach and intergenerational adjustment to globalization having results through national legislations, in which countries have enacted laws specifically criminalizing FGM. These laws often include provisions for prosecution and penalties for those who perform or facilitate the practice. For instance, in Somalia, the practice is illegal under the Penal Act, with severe penalties for offenders^[9].

Still, legal measures alone are insufficient to eradicate FGM, as seen by the case of Somalia. Effective strategies often involve engaging with community leaders, educating them about the health risks and human rights violations associated with FGM. They also promote alternative rites of passage. Community-led initiatives have shown success in reducing the prevalence of FGM by offering culturally sensitive alternatives. This goes hand-in-hand with cross-border cooperation. This is essential in addressing FGM, especially in regions where it is prevalent among migrant communities. International bodies and non-governmental organizations (NGOs) play a crucial role in supporting local efforts, providing resources, and advocating for policy changes.

Challenges in Eradication of FGM:

Several challenges persist in the efforts to eliminate FGM within indigenous communities. Adjusting legislation is often not enough to change cultural practices. These deeply ingrained cultural beliefs and traditions make it difficult to convince communities to abandon FGM. Resistance is often rooted in the fear of losing cultural identity and social cohesion. It is a valid worry from indigenous communities, as many factors, caused by globalization, already inhibit traditional practices.

In many regions, law enforcement faces difficulties in prosecuting FGM cases due to lack of evidence, fear of reprisal among victims, and the clandestine nature of the practice. Additionally, many communities are unaware of the health risks associated with FGM and the legal ramifications. Educational campaigns must be tailored to address local beliefs and provide accurate information. Still, it is important to balance cultural sensitivity and Human Rights Protection Mechanisms in educating around FGM, as interventions must navigate the fine line between respecting cultural practices and protecting children’s rights. Heavy-handed approaches can backfire, leading to distrust and further entrenchment of harmful practices, creating a larger split between governmental and Indigenous Representatives.

Conclusion:

The practice of Female Genital Mutilation in indigenous communities presents a complex challenge that intersects cultural traditions and international human rights norms. While the cultural significance of FGM in these communities cannot be dismissed, it is imperative that children’s rights to health, security, and bodily integrity are upheld. A multifaceted approach that combines legal frameworks, community engagement, and international cooperation is essential to effectively address FGM. Respecting cultural diversity while ensuring the protection of children requires nuanced and sensitive strategies that prioritize education, empowerment, and community involvement. As global efforts continue, it is crucial to foster an environment where cultural practices can evolve in ways that respect both tradition and the fundamental rights of children.

^[1] UNICEF, ‘Female Genital Mutilation’ [UNICEF Data, August 2023] <https://data.unicef.org/topic/child-protection/female-genital-mutilation/>.

^[2] World Health Organization, ‘Female Genital Mutilation’[World Health Organization, 2024] <https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation>.

^[3] Universal Declaration of Human Rights (UDHR) [1948] Art. 3.

^[4] Convention on the Rights of the Child (CRC)  [1989] Art. 19.

^[5] Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) [1981] Art. 5.

^[6] African Charter on the Rights and Welfare of the Child [1990] Art. 21.

^[7] International Covenant on Economic, Social and Cultural Rights (ICESCR) [1954] Art. 15.

^[8] United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)  [2006] Art. 11.

^[9] ‘Somalia: The Law and FGM’  [2018] <https://www.fgmcri.org/media/uploads/Law%20Reports/somalia_law_report_v2_(july_2021).pdf>.