FGM: How to Handle One of the Biggest Human Rights Violations

Hannah Bondi is Editor-in-Chief of Breaking the Glass Ceiling.

A Discussion with Dexter Dias QC

Female Genital Mutilation, or FGM, is one of the biggest human rights violations facing the world today. The process itself is a gruesome one.  A girl’s genitals are deliberately cut, mutilated or changed. The vast majority of victims are cut when they are under 15. There is no medical need for this practice to take place.  Rather, it survives thanks to traditions in certain communities. In 2016 UNICEF estimated that 200 million women in 30 countries were victims of FGM[1], a staggering number. The countries were Indonesia, Iraqi Kurdistan, Yemen and 27 others in Africa. Alarmingly, an estimated 3 million girls globally are at risk of FGM every year[2]. In the UK, an estimated 137,000 girls and women in total are victims of FGM[3]. FGM has declined considerably over the last three decades. For example, in 1985 it was estimated that 97% of 15 to 19 year old girls in Egypt had undergone the practice; by 2015 that number had fallen to 70%. But a high prevalence of FGM persists across the world and much remains to be done.

Dexter Dias QC is a human rights and public law barrister who has acted in some of the most significant criminal and human rights cases and public inquiries of recent years.  His passionate commitment to social justice has been recognised by a number of leading bodies.  He is also a researcher at Cambridge and Harvard. In particular, he has been a prominent international advocate for women and girls at risk of FGM. He chaired and co-authored the influential report by the Bar Human Rights Committee to the Parliamentary Inquiry on FGM.  He sits as a part-time Judge in the Crown Court, authorised to try cases involving Serious Sexual Offences.  As he proclaims on Twitter, he is “never knowingly silent about FGM”.

FGM as a human rights violation

The 2008 UN report Eliminating Female Genital Mutilation[4] states that “one’s religion or beliefs might be subject to limitations necessary to protect fundamental rights and freedoms of others”[5]. You could say this idea of what is ‘fundamental’ is a projection of what the UN and the West assume to be ‘fundamental’. Couldn’t you say that in communities where FGM is practiced the role it plays in community- and identity- making is more fundamental than individual rights and freedoms?

You could say that.  You would be wrong.  But ‘wrong’ in a very specific sense.  See the next answer.

On the issue of identity, FGM has been used to reinforce identity in the face of colonialism. For example, the Ngaitana girls in Kenya cut themselves in protest against their British occupiers and in support of the Kikuyu[6]. Could the current movement to end FGM be seen as a kind of neocolonialism?

We need clarity about where the movement opposing FGM originates.  It was not from Western bleeding-heart liberals (‘soft and fluffies’ as colleagues at Harvard call them).  It originated in a defiant grassroots movement of heroic proportion by strong women in Sub-Saharan African and the Global South, many (most) of whom have been cut and who stood up in the face of tradition, authority and very real personal threat to protect the next generation, their daughters.  I see my role as standing beside them.  Supporting them.  Not speaking for them – I do not have that right.  But ensuring that their concerns get the widest possible platform.  Thus it is a chronic mischaracterisation to deem protecting at-risk girls from genital mutilation as neocolonialism.  In fact, it is dangerous.  It obscures the true battle-lines.  It panders to insidious cultural relativist apologists for genital mutilation.  So what is the true contest?  It is between those who would cut the genitals of children and those, like me, who claim such girls have a right to bodily integrity.

I grant that there is no objective basis for that claim.  It is a moral commitment.  A belief in the universality of human rights.  I also accept this may be a deontological claim.  But there are also consequentialist arguments that can support it.  That is the true contestation around FGM today – not between liberation and colonial oppression.  There are other more pernicious legacies of colonialism that I am challenging in other international law and human rights cases.

FGM is practiced in some immigrant communities in the UK and is often correlated with a sense of cementing identity in a country where one is a minority. By banning this practice, do we make these communities feel under attack for their beliefs?

We were very clear in our report to the Parliamentary Inquiry that there needs to be a material distinction between deprecating the harmful social practice and demonising the practising communities as a whole.  I emphasised this point in my advisory work to parliamentarians in both the House of Commons and the Lords during the parliamentary passage of the new law, to which we contributed (see below).  Moreover, my research suggests that such unrelenting vilification would have the paradoxical consequence of driving socially isolated and marginalised communities to revert to more traditional practices as a form of solidarity and to protect their sense of self.

FGM seems to be systemic, stemming from sexual inequality. As it is deeply rooted in socio-cultural traditions, would it be more effective to put all our energy into promoting sexual equality, and then target FGM as a human rights violation, rather than the other way round?

That begs the critical question: where do socio-cultural traditions come from?  Not only what are they; why are they? And why this particular concretisation of patriarchy?  I can agree that empowering young women and girls is one of the suite of interventions that will help combat FGM.  That is part of the various programmes in Sub-Saharan Africa.  But it is not a binary question.  There is a connection between the vindication and valorisation of human rights and creating a gender equality that has traction and is durable.

FGM in UK law

In a 2014 Guardian article you co-wrote with Felicity Gerry and Hilary Burrage, you targeted a legal loophole which fails to stop children, who are not British nationals, from being taken abroad for FGM[7]. In what way could this loophole be closed? Would this restrict the freedom of movement of individuals and therefore be considered unfair?

Once more this is a complex question.  Go back to first principles.  Freedom of movement, or rights to family life and/or privacy are not absolute (unlike, say, the right to life).  Thus human rights law entertains interference with or curtailing of those rights.  But the intervention must be proportionate.  It must be justified when balanced against the social suffering prevented.  On the one side of the equation there is a higher degree of scrutiny when children are taken abroad to certain countries.  On the other side, you have the prevention of the genital mutilation – that is, recognised in law to be child abuse – of hundreds or thousands of girls.  It seems to me to be a proportionate safeguarding step.  It is striking the right balance.

You also suggested that there should be preventative orders in place when there is clear evidence that a child is at risk of FGM, which puts the carers under suspicion. Could this then lead to certain immigrant communities in the UK feeling targeted and watched by the state?

We want people, whether parents, extended family members or others, to feel under scrutiny if they are contemplating mutilating their daughters.  These population groups – and you are right that they are broadly (not exclusively) migrant and mobile – are not being ‘targeted’ because of their ethnicity, but because within their number there are thousands of girls at risk of severe harm.  It is possible to view this from the other end of the telescope.  There is a compelling argument that to fail to protect these at-risk girls is a gross dereliction of the state’s duty of care to these young people, largely based on their difference and ‘otherness’.  That was certainly our critique and conclusion in our report to Parliament.  That has to change.  For too long the UK has been viewed as a ‘soft touch’ haven for FGM.  We are changing that perception.

You further suggested there should be a “’failure to protect from FGM’ law for cases where a child is mutilated when demonstrably in the care of parents”. How would one define “demonstrably” in a court of law?

Parental responsibility is a straightforward concept.  It is a question of evidence.  Courts routinely make such judgements hundreds of times a day in family law cases.

FGM medicalised

The UN report states that “health professionals must never perform FGM”[8]. Even though having the practice done by a health professional does not reduce the long-term consequences, it may reduce the chances of infection and anaesthesia could be used. Could letting health professionals perform FGM be a more harm-reducing method of tackling FGM?

No.  It would legitimise the practice.  The imprimatur of state endorsement would then, however well-intentioned, be stamped on FGM.  Child abuse remains child abuse, irrespective of the perpetrator.  Is the proposal that the state would engage in a sanitised form of systematic child abuse?  That is vesting the state with an obscene complicity.

 

The 2015 case of Dr. Dhanuson Dharmasena[9] caused a lot of debate about what constitutes FGM in the British medical world. Dr. Dhanuson resutured an FGM survivor after she gave birth with one single stitch to stop the bleeding. He was encouraged to do so by the woman’s husband. Dr. Dhanuson was found not guilty of FGM. What are your own thoughts on this?

This is again a complex case and space does not permit an analysis that does it justice.  Let me say this.  The case was widely viewed as a ‘failure’.  This is a misunderstanding.  A case does not fail just because a defendant is acquitted.  The purpose of a prosecution is to put the material in front of the court for independent adjudication.  I know speaking to survivors and members of affected communities that the mere fact of a prosecution has significant symbolic value.  Irrespective of outcome, the messaging is that the state is finally taking this form of gender-based violence more seriously. We have to do more.  The direction of travel is the right one.  But we have only just begun.  We are on the right side.  FGM will be eradicated.  It is a question of time.  Of how many girls will be mutilated unnecessarily between now and that end point.  How serious are we?  That is the question.

[1] https://www.unicef.org/media/files/FGMC_2016_brochure_final_UNICEF_SPREAD.pdf

[2] http://www.who.int/reproductivehealth/topics/fgm/prevalence/en/

[3] https://www.city.ac.uk/__data/assets/pdf_file/0004/282388/FGM-statistics-final-report-21-07-15-released-text.pdf

[4] http://www.un.org/womenwatch/daw/csw/csw52/statements_missions/Interagency_Statement_on_Eliminating_FGM.pdf

[5] Pg. 10

[6] http://www.dirittoequestionipubbliche.org/page/2009_n9/05_studi-03_MC_LaBarbera.pdf

[7] https://www.theguardian.com/commentisfree/2014/feb/07/fgm-female-genital-mutilation-prosecutions-law-failed

[8] Pg. 12

[9] https://www.theguardian.com/society/2015/feb/04/doctor-not-guilty-fgm-dhanuson-dharmasena

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