UN: Special Rapporteur Juan E. Méndez reiterates FGM as a form of torture
Female Genital Mutilation: Progress-Realities-Challenges
Statement by Juan E. Méndez, Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment. 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
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 Africa, an estimated 92 million girls from 10 years of age and above have undergone FGM. 
All forms of FGM violate a range of human rights of girls and women, including the right to non-discrimination, to protection from physical and mental violence, to the highest, attainable standard of health,  and, in the most extreme cases, to the right to life. FGM also constitutes torture and cruel, inhuman or degrading treatment  as affirmed by international jurisprudence, including by many of the UN treaty monitoring bodies, the Special Procedures of the Human Rights Council,  and the European Court of Human Rights (Emily Collins and Ashley Akaziebie v. Sweden).
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”. 
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) and in the leading case of Fornah (FC) (Appellant) v. SSHD (Respondent) (2006),  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 Austria, Belgium and Germany. The European Court of Human Rights has also found that it is not in dispute that subjecting a woman to FGM amounts to ill-treatment contrary to Article 3 of the 1950 European Convention on Human Rights.
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”. The Committee against Torture has expressed concern regarding the lack of domestic legislation outlawing female genital mutilation in specific countries. 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. 
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 Togo and Nigeria in 2007, my predecessor noted with regret the social acceptance of these practices, as well as the lack of effective mechanisms to enforce the existing prohibitions. The tendency of “medicalization” of FGM, which is on the rise in some African countries, does not in any way make the practice more acceptable. Moreover, in cases where FGM is performed in private clinics and physicians carrying out the procedure are not being prosecuted, State’s indifference or inaction provides a form of encouragement and/or de facto permission for such acts to take place and go unpunished. 
A formal prohibition of FGM by law is thus not sufficient to conclude that State protection is available. States are obliged to take effective and appropriate measures to eliminate FGM. These obligations include the prohibition through legislation, backed by sanctions, of all forms of FGM, at every level of government, including medical facilities.  Not only must States ensure that perpetrators are duly prosecuted and punished, 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. 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. Moreover, comprehensive administrative and easily accessible programmes should be created offering redress and reparation services to victims of all types of gender-specific violence.
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 International Covenant on Civil and Political Rights (ICCPR), Article 3; CEDAW, Articles 2, 5.
 CRC, Article 19; Declaration on the Elimination of Violence Against Women (DEVAW), Article 2 (a).
 International Covenant on Economic Social and Cultural Rights, Article 12; CRC Article 24.
 ICCPR, Article 6; CRC, Article 6. See also: UNHCR Guidance Note on Refugee Claims Relating to Female Genital Mutilation, May 2009.
 ICCPR, Article 7; CRC, Article 37; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 3.
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).
 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.
 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
 Immigration and Appeals Tribunal, Appeal Number 00TH00493, 19 January 2000.
 UK House of Lords, (UKHL 46), 18 October 2006.
 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.
 Concluding observations on Cameroon, CAT/C/CR/31/6, para. 7.
 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.
 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.
 GZ (Cameroonian citizen), 220.268/0-X1/33/00, Austrian Federal Refugee Council, Independent Federal Asylum Senate, 21 March 2002.
 CEDAW General Recommendation No. 14.
 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) .
 DEVAW, Article 4(c).
UNHCR Guidance Note on Refugee Claims Relating to Female Genital Mutilation, May 2009
 General Comment No. 20, 44th session, Human Rights Committee.